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DIGEST 


OF  THE 


LAWYERS  REPORTS 
ANNOTATED 


ISTEA^   SERIES 
VOLS.  1-53 


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CITED  ''L.R.A.(N.S.r 


a;^ol.  I 


THE  LAWYERS  CO-OPERATIVE   PUBLISHHSTG  COMPANY 

ROCHESTER,  N.  Y. 

1915 


b'  ■  by 

The  Lawvebs  Co-operative  PiTBiiisHiNO  Company. 


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K.  H.  Anurkws  PiiiNTiNQ   OoMPANV,   liochester,  N.    "i. 


PREFACE. 


THIS  Digest  includes  volumes  1-52  L.R.A.(]Sr.S,).  It  connects  with 
the  Digest  of  1-70  L.E.A.  These  comprise  a  complete  digest  of  all 
cases  in  the  first  series,  and  all  in  the  new  series  down  to  volume  53 
inclusive.  The  classification  in  both  is  substantially  the  same,  and,  in  order 
to  insure  complete  facility  in  finding  the  similar  cases  in  both  digests  with- 
out inconvenience  or  loss  of  time,  an  explicit  reference  in  italic  type  is 
given  under  the  heading  of  every  division  or  subdivision  in  the  present 
Digest,  calling  attention  to  the  exact  division  or  subdivision  where  such 
cases  are  to  be  found  in  the  Digest  of  1-70  L.R.A. 

The  word  "^Annotated"  appearing  after  any  paragraph  in  this  Digest 
indicates  that  there  is  annotation  to  the  case  upon  that  point.  A  complete 
and  elaborate  index  to  all  the  annotations  in  1-70  L.R.A.  and  1-42  L.E.A. 
(I^.S.)  appears  in  a  separate  book,,  and  there  is  also  a  supplement  thereto 
including  43-52  L.R.A. (N.S.).  The  Index  to  Kotes  and  the  Digest  supple- 
ment each  other,  and  for  a  thorough  search  on  any  question  both  must  be 
consulted. 


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DIGEST 
LAWYERS  REPORTS  ANNOTATED 


NEW  SEEIES,   YOLUMES    1-52. 


A 


ABANDONMENT. 

Of  action,  see  Action  ob  Suit,  132. 

Of  property  by  permitting  it  to  slide  over 
boundary  line,  see  Adjoining  Land- 
owners. 

Of  appeal,  see  Appeal  and  Error,  10. 

Of  particular  theory  of  case,  see  Appeal 
AND  Error,  166. 

Of  portion  of  complaint,  see  Appeal  and 
Error,  409. 

Of  leased  premises,  see  Bankruptcy,  163; 
Landlord  and  Tenant,  210;  Proxi- 
mate Cause,  46, 

Of  freight  by  owner,  see  Carriers,  831. 

Of  station   by  carrier,  see   Carriers,   1084. 

Of  mortgage  lien,  see  Chattel  Mortgage, 
52-57. 

Of  constitutional  power,  see  CoNSTiTtnioN- 
AL  Law,  I.  h. 

Of  wife,  see  Constitutional  Law,  35; 
Estoppel,  53;  Husband  and  Wife,  IV. 

Of  contract,  see  Contracts,  V.  b. 

Of  crop  by  cropper,  see  Choppers,  4. 

Of  child,  see  Death,  24-26;  Divorce  and 
Separation,  158;  Parent  and  Child, 
13. 

Of  dedication,  see  Dedication,  III. 

Of  ♦easements,  see  Easements,  V.;  Evi- 
dence, 2186. 

Of  privilege  secured  by  ad  quo  damnum 
proceedings,  see  Emine^^t  Domain,  112. 

Of  water  rights,  see  Evidence,  593,  594; 
Waters,  252. 

Of  mining  lease,  see  Evidence,  268,  2187. 

Of  mining  claim,  see  Evidence,  2185; 
Mines,  I.  b. 

Of  right  to  flow  lands,  see  Evidence,  2197. 

Of  claim  by  employee  for  compensation  for 
extra  services,  see  Evidence,  2306. 

Of  objection  to  jurisdiction,  see  Habeas 
Corpus,  32,  33. 

Of  street  or  alley,  see  Highways,  V.  c. 

Of   homestead,   see   Homestead,   III. 

Of    insurance    policy,    see   Insurance,    145. 

Of  logs,  see  Logs  and  Logging,  6-8;  Trial, 
229. 

Digest  1-52  I..R.A.(N.S.) 


Of  right  to  cut  or  remove  timber,  see 
Timber,  8-10. 

By  father  and  husband,  effect  on  right  to 
recover  for  his  death,  see  Death,  33. 

As  ground  for  divorce,  see  Divorce  and 
Separation,  III.  b. 

As  question  for  jury,  see  Trial,   229,   639. 

Sale  or  conveyance  of  property  as,  see 
Covenants  and  Conditions,  1. 

Variance  between  pleading  and  proof  in  ac- 
tion to  recover  abandoned  property, 
see  Evidence,  2473. 

1.  Title  to  land  acquired  by  seven 
years'  adverse  possession  under  color  of 
title  cannot  be  lost  by  abandonment.  Tar- 
ver.  V.  Deppen,  24:  1161,  65  S.  E.  177,  132 
Ga.  798,  (Annotated) 


ABATEMENT. 


Of  action,  see  Abatement  and  Revival. 
Of  purchase  price,  see  Judicial  Sale,  11; 

Limitation  of  AcrrioNs,  18;   Specific 

Performance,   102,   119;   Vendor  and 

Purchaser,  29-33. 
Of  nuisance,  see  Nuisances,  II.  c. 
Of  tax,  see  Taxes,  III.  j. 
Of  legacy  generally,  see  Wills,  III.  1, 
Of  legacies  and  devises  to  raise  portion  for 

afterborn  child,  see  Conflict  of  Laws, 

130;    Wills,    183, 


ABATEMENT  AND   REVIVAI.. 

J.  In  general,  1,  2. 
II.  By  death,  3—22. 
III.  Pendency  of  prior  action,  23—30. 
IV.  Revival,  31—35. 

Abatement  of  pending  suit  as  impairing 
obligation  of  contract,  see  Constitu- 
tional Law,  807. 


2 


ABATEMENT  AND  REVIVAL,  I.,  II. 


Survival  to  administrator  of  action  for  in- 
juries,  see  Death,   3. 

Plea  in  abatement,  see  Pleading,  462,  463, 
589. 

I.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  One  suing  for  the  purchase  price  of 
a  set  of  books,  part  of  which  he  has  with- 
held because  of  default  in  payments  of 
instalments,  cannot  avoid  abatement  of  the 
action  by  tendering  the  books  withheld 
after  instituting  it.  Rodgers  v.  Wise,  43: 
1009,  153  S.  W.  253,  106  Ark.  310. 

2.  The  failure  of  a  trustee  in  bank- 
ruptcy to  intervene  in  a  suit  brought  by 
the  bankrupt  in  a  state  court  before  his 
adjudication  will  not  abate  the  suit. 
Weaver  Mercantile  Co.  v.  Thurmond, 
33:  1061,  70  S.  E.  126,  68  W.  Va.  530. 

II.  By  death. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

By  dissolution  of  corporation,  see  Corpora- 
tions, VI.  d. 

Effect  of  death  on  alimony,  see  Divorce  and 
Separation,  127. 

Effect  of  death  of  father  on  duty  as  to  sup- 
port of  children  after  divorce,  see  Di- 
vorce AND  Separation,  155-157. 

3.  If  the  declaration  and  facts  stated 
in  opening  the  case  show  that  the  cause  of 
action  did  not  survive  the  death  of  the  orig- 
inal defendant,  his  successor  may  move  to 
dismiss,  although  he  has  not  demurred  to 
the  declaration,  or  requested  the  rendition 
of  a  verdict  in  his  favor.  Hey  v.  Prime, 
17:  570,  84  N.  E.  141,  197  Mass.  474. 

4.  The  legislature  may  provide  that  an 
action  for  damages  arising  from  a  tortious 
breach  of  contract  shall  not  abate  upon 
plaintiff's  death.  Forrester  v.  Southern  P. 
Co.  48:  I,  134  Pac.  753,  136  Pac.  705,  36 
Nev.  247. 

Action  on  bond. 

5.  A  cause  of  action  on  a  saloon  keep- 
er's bond,  by  the  widow  of  one  who  had 
been  killed  by  a  person  to  whom  the  saloon 
keeper  had  unlawfully  sold  intoxicating 
liquors,  survives  the  death  of  the  saloon 
keeper,  and  may  be  maintained  against  liis 
personal  representative.  Koski  v.  Pakkala, 
47:  183,  141  N.  W.  793,  121  Minn.  450. 

(Annotated) 
Rescission  of  deed. 

6.  The  privilege  of  disaffirming  a  deed 
for  land,  voidable  because  made  in  infancy, 
descends  to  heirs  at  the  death  of  the  person 
having  the  privilege.  Blake  v.  Hollands- 
worth,  43:714,  76  S.  E.  814,  71  W.  Va.  387. 

(Annotated) 

7.  A  cause  of  action  to  rescind  a  deed 
made  in  consideration  of  a  covenant  to  sup- 
port and  maintain  tlie  grantor  and  contain- 
Digest   1-52   L.R.A.(N.S.) 


ing  a  clause  reserving  a  lien  for  maintenance 
and  support,  and  a  clause  giving  the  grantor 
a  right  to  re-enter  and  use  and  occupy  the 
land  during  his  life,  for  failure  o.  the  gran- 
tee to  perform  the  covenant,  docs  not  die 
with  the  grantor.  White  v.  Bailey,  23:  232, 
64  S.  E.  1019,  65  W.  Va.  573.  (Annotated) 
Action  for  tort  generally. 

8.  A  cause  of  action  for  deceit  in  the 
sale  of  real  estate  does  not  survive  the 
death  of  the  person  injured,  under  the  stat- 
utes of  4  and  31  Edward  III.,  providing  for 
survival  of  actions  for  wrongs  to  personal 
property,  which  became  a  part  of  the  com- 
mon law  of  this  country.  Ahern  v.  Mc- 
Glinchy,  52:  885,  90  Atl.  709,  112  Me.  58. 

(Annotated) 

9.  An  action  brought  under  Neb.  Com  p. 
Stat.  chap.  91a,  §  11,  to  recover  damages 
sustained  by  reason  of  an  unlawful  com- 
bination and  conspiracy  to  prevent  competi- 
tion, will  not  completely  abate  on  the  death 
of  the  plaintiff,  but  may  be  revived  and 
maintained  by  his  personal  representatives, 
by  virtue  of  Neb.  Code  Civ.  Proc.  §  455. 
Cieland  v.  Anderson,  5:  136,  92  N.  W.  306, 
96  N.  W.  212,  98  N.  W.  1075,  66  Neb.  252, 
105  N.  W.   1092,  75  Neb.  273. 

10.  A  cause  of  action  for  malicious 
prosecution  docs  not,  under  the  common 
law  or  by  statute,  survive  against  the  per- 
sonal representative,  unless  as  a  result 
thereof  property  is  acquired  by  the  wrong- 
doer which  inures  to  his  benefit  or  enhances 
the  value  of  the  estate  in  the  hands  of  his 
personal  representative.  Woodford  v.  Mc- 
Daniels,  52:  1215,  81  S.  E.  544,  73  W.  Va. 
736.  (Annotated) 

11.  A  cause  of  action  ex  delicto  which 
abated  by  death,  and  did  not  survive  at 
common  law  to  or  against  the  personal  rep- 
resentative, does  not  survive  by  virtue  of 
§  2,  c.  127  (§  4833)  West  Virginia  Code 
1913,  providing  that,  if  a  plaintiff  or  de- 
fendant dies  pending  any  action,  whether 
the  cause  of  action  would  survive  at  com- 
mon law  or  not,  the  same  may  be  revived 
and  prosecuted  to  judgment  and  execution 
in  the  same  manner  as  if  it  were  a  cause 
of  action  arising  out  of  contract,  since  this 
section  prescribes  only  the  mode  of  pro- 
cedure for  the  revival  of  actions  which  at 
common  law  or  by  virtue  of  other  statu- 
tory provisions  survive  to  or  against*the 
personal  representative,  and  does  not  create 
a  new  cause,  or  give  a  new  right,  of  action 
which  did  not  exist  before.  Woodford  v. 
McDaniels,  52:  1215,  81  S.  E.  544,  73  W. 
Va.  736. 

12.  Section  20,  c.  85  (%  4007)  West 
Virginia  Code,  providing  that  an  action  of 
trespass  or  trespass  on  the  case  may  be 
maintained  by  or  against  a  personal  rep- 
resentative for  the  taking  or  carrying  away 
of  any  goods,  or  for  the  waste  or  destrtic- 
tion  of,  or  damage  to,  any  estate,  of  or  by 
his  decedent,  does  not  authorize  recovery 
of  indirect  or  consequential  damages  result- 
ing from  the  wrongful  use  of  judicial  pro- 
ceedings, whereby  the  person  injured  was 
deprived  merely  of  tlie  use  and  benefit  of 
property   pending   a    suit   subsequently    dis- 


ABATEMENT  AND  REVIVAL,  III. 


missed  on  appeal  for  want  of  jurisdiction. 
Woodford  v.  McDaniels,  52:  1215,  81  S.  E. 
544,   73  W.  Va.  736. 

Action  for  breach  of  promise  of  mar- 
riage. 

13.  Damages  resulting  from  injury  to 
feelings,  reputation,  and  standing  in  conse- 
quence of  the  breach  of  a  promise  of  mar- 
riage are  recognized  in  Louisiana  as  act- 
ual or  compensatory,  as  contradistin- 
guished from  exemplary  or  vindictive,  dam- 
ages; and  where  the  obligor  has  been  put 
in  default  by  formal  demand  that  he  keep 
his  promise,  they  may  be  recovered  in  an 
action  brought  after  his  death  against  his 
heirs,  in  the  same  manner  and  to  the  same 
extent  as  damages  to  person  or  property. 
Johnson  v.  Levy,  9:  1020,  43  So.  46,  118  La. 
447.  (Annotated) 

14.  While  the  obligation  to  fulfil  a 
marriage  engagement  is  personal,  and  the 
right  of  action  to  recover  damages  for  non- 
fulfilment  perishes  with  the  death  of  the 
obligor,  yet  where  the  latter  is  put  in  de- 
fault by  formal  demand  his  right  to  fulfil 
his  engagement  is  thereby  forfeited,  and 
his  obligation  in  that  regard  is  merged  in 
his  obligation  to  respond  in  damages, 
which  thereby  acquires  an  independent 
status,  becomes  heritable,  and  may  be  en- 
forced against  the  heirs  of  the  obligor. 
Johnson  v.  Levy,  g:  1020,  43  So.  46,  118  La. 
447.  (Annotated) 
For  personal  injuries. 

15.  The  right  of  a  child  to  damages  for 
the  maintenance,  on  premises  adjoining 
those  on  which  he  resides,  of  a  pond  emit- 
ting noxious  vapors  to  the  injury  of  his 
health,  survives  to  his  personal  representa- 
tive in  case  he  dies  from  the  illness.  Hos- 
mer  v.  Republic  Iron  &  Steel  Co.  43:  871, 
60  So.  801,  179  Ala.  415. 

16.  An  action  for  damages  for  wrongful 
ejection  of  a  passenger  from  a  railroad 
train,  brought  by  the  person  ejected,  is 
within  a  statute  permitting  actions  found- 
ed on  contract  to  be  maintained  by  the 
executor  or  administrator  of  the  person 
injured  if  he  might  himself  have  main- 
tained the  action,  if  another  section  gives 
anyone  who  shall  suffer  personal  injury 
by  the  wrongful  default  of  another  a  right 
of  action  for  the  injury,  although  it  also 
provides  that  such  liability  shall  exist 
only  when  adjudicated  in  an  action  brought 
by  the  person  injured.  Forrester  v.  South- 
ern P.  Co.  48:  I,  134  Pac.  753,  136  Pac.  705, 
36  Nev.  247. 

17.  Under  a  statutory  rule  that  a  right 
of  action  for  a  negligent  injury  to  a  minor 
accrues  to  the  father  if  he  be  alive  at  the 
time  of  the  injury,  a  cause  of  action  for 
such  an  injury  will  not  survive  to  tlie 
mother  of  the  child,  although  the  father 
was  injured  at  the  same  time  as  the  child, 
and  lived ^  only  a  short  time  thereafter. 
King  V.  Southern  R.  Co.  8:  544,  55  S.  E. 
965,  126  Ga.  794. 

18.  A  personal  representative  of  a  de- 
ceased person  has  a  right,  under  Ohio  Rev. 
Stat.  §5144,  to  prosecute,  for  the  benefit  of 
the  estate,  an  action  for  personal  injuries 
Digest  1-52  I^R.A.(N.S.) 


instituted  by  the  deceased  in  her  lifetime, 
although  her  death  was  the  direct  conse- 
quence of  the  injuries  received.  Mahoning 
Valley  R.  Co.  v.  Van  Alstine,  14:  893,  83  N. 
E.  601,  77  Ohio  St.  395. 

19.  The  injury  to  the  liusband  through 
deprivation  of  his  wife's  services  or  matri- 
monial companionship  because  of  a  personal 
injury  to  her  is  not  damages  to  the  person, 
within  the  meaning  of  a  statute  providing 
that  action  of  tort  for  assault,  "or  other 
damages  to  the  person,"  shall  not  abate  by 
death.  Hey  v.  Prime,  17:  570,  84  N.  E.  141^ 
197  Mass.  474.  (Annotated) 
For  death. 

See  also  Death,  34,  35. 

20.  A  statute  providing  that  actions  for 
wrongs  done  to  the  property  riglits  or  in- 
terests of  another  shall  survive  the  death  of 
the  wrongdoer  does  not  include  a  widow's 
claim  for  negligent  killing  of  her  husband 
Bates  v.  Sylvester,  11:  1157,  104  S.  W.  73. 
205  Mo.  493.  (Annotated) 

21.  A  cause  of  action  arising  under  § 
4313,  Stat.  1893  (§  5281,  Rev.  Laws  1910), 
has  the  quality  of  survivability,  is  not  ex- 
tinguished by  the  death  of  the  beneficiary 
therein,  and  may  be  revived  and  prosecuted 
in  the  name  of  his  administratrix.  Shaw- 
nee v.  Cheek,  51:  672,  137  Pac.  724,  41  Okla. 
227. 

Bastardy    proceeding. 

22.  A  bastardy  proceeding  abates  upon 
the  death  of  the  defendant,  altliough  it  oc- 
curs pending  a  proceeding  by  him  to  review 
an  adverse  judgment.  People  v.  Kemp- 
painen,  30:  1166,  128  N.  W.  183,  163  Mich. 
186,  (Annotated) 

III,  Pendency  of  prior  action. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Dismissal  and  discontinuance  generally,  see 
Dismissal  ob  Discontinuance. 

Pendency  of  equitable  action  as  ground  for 
enjoining  legal  proceedings,  see  In- 
junction, 259,  260. 

Plea  of  former  suit  pending,  see  Pleading, 
142. 

Of  suit  in  state  court  by  removal  to  Fed- 
eral court,  see  Removal  of  Causes,  29. 

23.  An  action  is  pending  so  as  to  abate 
a  subsequent  action  between  the  same  par- 
ties, from  the  time  of  the  issuing  of  the 
summons,  under  a  statute  providing  that 
an  action  is  commenced  when  the  summons 
is  issued,  although  another  section  provides 
that  the  court  is  deemed  to  have  acquired 
jurisdiction  from  the  time  of  service  of  the 
summons.  Pettigrew  v.  McCoin,  52:  79,  81 
S.  E.  701,  165  N.  C.  472.  (Annotated) 

24.  The  pendency  of  an  action  by  a  rail- 
road contractor  against  the  receiver  and 
trustees  for  bondholders,  to  foreclose  a  me- 
chanics' lien,  will  abate  a  subsequent  action 
by  the  trustees  to  foreclose  the  mortgage 
against  the  lien  claimants,  although  other 
alleged  lien  claimants  are  made  parties 
thereto.      Moore-Mansfield    Constr.    Co.    v. 


ABATEMENT  AND  REVIVAL,  IV;   ABDUCTION  AND  KIDNAPPING. 


Indianapolis,  N.  &  T.  E.  R.  Co.  44:  816, 
101  N.  E.  296,  179  Ind.  356. 

25.  The  pendency  of  an  action  for  abso- 
lute divorce  in  one  county  does  not  pre- 
clude defendant  from  instituting  an  action 
in  the  county  of  her  residence,  being  an- 
other county  in  the  same  state,  for  a  di- 
vorce from  bed  and  board,  where  she  has 
sought  no  affirmative  relief  in  the  former 
suit.  Cook  V.  Cook,  40:  83,  74  S.  E.  639, 
159  N.  C.  46.  (Annotated) 

26.  The  pendency  of  an  action  at  law  by 
insured  against  insurer  to  recover  upon  the 
policy,  in  which  the  insurer  interposed  the 
equitable  defense  of  a  mutual  mistake  of 
the  parties,  is  not  a  bar  to  a  suit  in  equity 
subsequently  commenced  by  the  insurer 
against  the  insured  for  a  reformation  of  the 
policy  on  the  ground  of  such  mistake.  Na- 
tional F.  Ins.  Co.  V.  Hughes,  12:  907,  81  N. 
E.  562,  189  N.  Y.  84.  (Annotated) 
Snit  in  other  state. 

27.  The  pendency  of  an  action  in  one 
state  does  not  prevent  the  bringing  of  an- 
other action  in  anotlier  state  on  the  same 
cause  of  action.  Jones  v.  Hughes,  42:  502, 
137  N.  W.  1023,  156  Iowa,  684. 

28.  The  pendency  of  another  action  for 
the  same  cause  in  another  state  is  no  bar 
to  the  maintenance  of  an  action  at  law. 
McNamara  v.  McAllister,  34:  436,  130  N. 
W.  26,   150   Iowa,  243. 

29.  The  pendency  of  a  suit  in  one  state 
between  the  same  parties  and  for  the  same 
cause  of  action  furnishes  no  cause  to  stay 
or  abate  a  new  suit  brought  in  the  courts 
of  another  state,  and  this  rule  applies  as 
well  where  the  second  suit  is  instituted 
by  the  defendant  in  the  first  suit  as  where 
"the   plaintiff   in   both    actions   is   the   same 

person.  Ambursen  Hydraulic  Constr.  Co. 
V.  Northern  Contracting  Co.  47:  684,  78  S. 
E.  340,  140  Ga.  1. 

30.  An  insurance  company  cannot  abate 
an  action  to  recover  the  amount  due  on  a 
life  policy  because  it  was  assigned  to  a 
nonresident  who  has  brought  suit  upon  it 
in  the  state  of  his  residence,  although  he 
cannot  be  made  a  party  to  the  action,  if 
the  assignment  is  alleged  to  have  been 
void  for  want  of  capacity  to  make  it. 
Searles  v.  Northwestern  Mut.  L.  Ins.  Co. 
29:  405,  126  N.  W.  801,  148  Iowa,  65. 

(Annotated) 

IV.  Revival. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

Conflict   of    laws    as   to,    see    Conflict   of 

Laws,  92. 
Of  judgment  in  favor  of  state  in  case  of 

death  of  party,  see  Judgment,  321. 

31.  Under  a  statute  providing  that  an 
action  shall  stand  revived  in  the  absence 
of  sufficient  cause  shown  against  revivor, 
afler  service  of  a  conditional  order  there- 
for, the  court  has  no  discretion  to  refuse  to 
Digest  1-52  I..R.A.(N.S.) 


permit  a  revival.    Boyes  v.  Masters,  33:  576, 
114  Pac.   710,  28  Okla.  409. 

32.  The  metliod  of  reviving  an  action 
sanctioned  by  a  statute  providing  for  a  re- 
vivor by  service  of  a  conditional  order  there- 
for is  not  exclusive  where  the  statutes  also 
provide  that,  in  case  of  death  of  a  party, 
the  court  may  allow  the  action  to  continue 
against  his  representative,  and  autliorize  the 
court  to  allow  supplemental  pleadings  alleg- 
ing facts  occurring  after  the  former  plead- 
ings. Boyes  v.  Masters,  33:  576,  114  Pac. 
710,   28    Okla.   409.  (Annotated) 

33.  The  mere  fact  that  the  time  allowed 
by  the  revivor  t  atute  has  elapsed  will  not. 
in  the  absence  of  laches,  prevent  the  re- 
vivor of  an  action  foreclosing  a  mortgage 
which,  after  the  death  of  the  mortgagor,  had 
been  revived  against  his  widow,  who  was 
also  one  of  his  executors,  and  his  heirs,  and 
after  the  death  of  the  widow  had  been  re- 
versed and  remanded  on  appeal,  and  an  at- 
tempt made  to  revive  against  the  other  ex- 
ecutor and  the  widow's  representatives, 
without  any  attempt  to  bring  in  the  heirs 
until  after  a  motion  wasi  dismissed  be- 
cause of  failure  to  do  so.  Boyes  v.  Masters, 
33:  576,    114   Pac.    710,   28   Okla.   409. 

34.  An  action  for  the  possession  of  land 
brought  against  a  husband  and  wife  claim- 
ing under  a  tax  deed  which  ran  to  the  hus- 
band alone,  is  properly  revived,  after  the 
death  of  the  wife,  in  the  name  of  her  heirs; 
and  her  personal  representative  need  not  be 
made  a  party.  Fitch  v.  Douglass,  12:  172, 
90  Pac.  769,  76  Kan.  60. 

35.  A  stipulation  in  an  arbitration 
agreement  in  a  pending  action,  by  which 
defendant  binds  his  legal  representatives  to 
abide  by  the  award,  will  not  empower  the 
court,  upon  his  death,  to  revive  the  action 
against  his  legal  representatives  so  as  to 
bind  his  executors  and  estate  in  another  ju- 
risdiction. Brown  v.  Fletcher,  15:  632,  109 
N.  W.  686,  146  Mich.  401.  (Annotated) 


ABDUCTION  AND  KIDNAPPING. 

Of    person    accused    of   crime,    see    Habeas 

CoBPUS,  23,  24,  66. 
Simultaneous     trial     for     abduction     and 

adultery,  see  Criminal  Law,  69. 
Damages  for  abduction  of  minor  child,  see 

Damages,  315. 
Evidence   in  action  for  aoduction   of  child, 

see  Evidence,  1548. 
Joinder  of  parties  in  action  for  abduction 

of  child,  see  Husband  and  Wife,  169, 

170. 

1.  Statutory  liability  for  enticing  or 
decoying  a  child  from  its  parent  cannot  be 
avoided  on  the  ground  that  accused  acted  aa 
agent  for  the  other  parent,  where  the  two 
were  living  apart,  whatever  might  have 
been  the  freedom  from  liability  on  the  part 
of  such  parent  had  he  or  she  acted  in  per- 
son. State  V.  Brandenberg,  32:845,  134  S. 
W.  529,  232  Mo.  531.  (Annotated) 


ABILITY— ABSTRACTS. 


2.  Neither  a  father  nor  his  assistant 
is  guilty  of  kidnapping  where  they  obtain 
by  misrepresentation  peaceable  possession 
of  his  child  from  its  mother,  who  has  be- 
gun divorce  proceedings  against  the  father, 
but  no  order  has  been  made  affecting  the 
custody  of  the  child.  State  v.  Dewey,  40: 
478,  136  N.  W.  33,  155  Iowa,  469. 

3.  A  father  of  a  minor  child,  the  cus- 
tody of  which  has  been  left  open  in  a  di- 
vorce proceeding,  may  maintain  an  action 
against  his  former  wife  and  those  assisting 
her  for  the  abduction  and  concealment  of 
the  child,  although  the  child  was,  at  the 
time  of  the  decree,  in  the  mother's  posses- 
sion. Howell  V.  Howell,  45:  867,  78  S.  E. 
222,  162  N.  C.  283.  (Annotated) 

4.  A  bishop  having  autliority  over  the 
spiritual  welfare  of  those  in  charge  of  a 
school  from  which  a  child  was  kidnapped, 
but  no  control  over  their  temporal  affairs, 
is  not  liable  in  damages  to  the  parents  of 
the  child  because  of  his  refusal  to  coerce  a 
confession  from  the  school  authorities,  who 
are  assumed  to  be  cognizant  of  the  where- 
abouts of  the  child,  and  require  its  restora- 
tion to  the  parents.  Magnuson  v.  O'Dfta, 
48:  327,  135  Pac.  640,  75  Wash.  574. 


ABILITY. 


Presumption  as  to,  see  Evidence,  II.  e,  5. 
Opinion  evidence  as  to,  see  Evidence,  VII. 
e. 


ABOLITION. 


Of  public  office,  see  Officers,  I.  e,  2. 


ABORTION. 


Evidence  in  prosecution  for,  see  Evidence, 
1400,  1463. 

Causing  by  fright,  see  Homicide,  2. 

Liability  for  homicide  of  one  performing 
abortion  which  results  in  death,  see 
Homicide,  42,   43. 

Indictment  for,  see  Indictment,   etc.,   29. 

Forbidding  mailing  of  letter  containing  in- 
formation as  to  where  abortion  will 
be  performed,  see  Postoffice,  14-16. 

Impeachment  of  prosecuting  witness  in 
prosecution    for,    see    Witnesses,    142. 

1.  In  a  hearing,  by  the  state  board  of 
health,  of  charges  against  a  physician  for 
procuring,  or  aiding  or  abetting  in  procur- 
ing, a  criminal  abortion,  it  is  not  necessary 
either  to  allege  or  to  prove  that  the  woman 
had  become  quick,  as  the  crime  may  be 
perpetrated  the  moment  embryo  life,  and 
gestation  have  begun.  Munk  v.  Frink,  17: 
^39,  116  N.  W.  525,  81  Neb.  631. 
Digest   1-52  L.R.A.(N.S.) 


ABROGATION. 

Of  common  law,  see  Common  Law,  6,  7. 


ABSENCE. 


Of  witness,  right  to  continue  for,  see  Con- 
tinuance AND  Adjournment, 

Presumption  of  death  from,  see  Evidence, 
153-156. 

Effect  of,  on  running  of  limitations,  see 
Limitation   of  Actions,   II.   1. 


ABSENTEES. 


Administration  on  estate  of,  see  Constitu- 
tional Law,  396,  397,  593,  608,  778; 
Courts,  243;  Executors  and  Admin- 
istrators, 14,  15,  21,  22,  62;  Stat- 
xptes,  314. 

Presumption  of  death  of,  see  Evidence, 
153-156. 

Question  for  jury  as  to  time  of  death  of, 
see  Trial,  629,  630. 

Right  to  continue  for  absent  witness,  see 
Continuance  and  Adjournment,  8- 
13. 

1.  A  statute  authorizing  the  sale  of  un- 
claimed property  of  absent  heirs  provides 
a  sufficient  method  of  sale  if  it  directs  that 
it  shall  be  under  order  of  court.  Bickford  v. 
Stewart,  34:  623,  104  Pac.  263,  106  Pac. 
1115,   55   Wash.  278. 


ABSORBED. 


Death  of  insured  from  thing  absorbed,  see 
Insurance,  VI.  b,   3,  e. 


ABSTRACT  COMPANY. 

Right  to  examine  records,  see  Records  and 
Recording  Laws,  5,  6. 


ABSTRACTS. 


When  right  of  action  on  bond  of  abstracter 
accrues,  see  Action  or  Suit,  21. 

On  appeal,  see  Appeal  and  Error,  IV.  m. 

Motion  to  strike  amended  abstract  of  rec- 
ord, see  Appeal  and  Error,  177,  178. 

Unauthorized  contract  by  broker  to  furnish, 
see  Brokers,  7;  Specific  Perform- 
ance,  106. 

Necessity  of  furnishing  abstract  of  title 
under  contract  to  deliver  warranty 
deed,  see  Contracts,  378. 

Bar  of  abstracter's  liability  for  negligence 
by  running  of  limitations,  see  Limita- 
tion OF  Actions,  179. 


6 


ABUSE;  ABUSE  OF  PROCESS. 


Demurrer  to  complaint  in  action  for  failure 

to    furnish    satisfactory    abstract,    see 

Pleading,   255. 
Right    to    examine    record    for    purpose    of 

making,    see   Recobds   and   Recording 

Laws,  5,  6. 
SuflSciency  of  abstract  of  title,  see  Vendor 

AND  Purchaser,  4. 
Defects  in  title  shown  by,  see  Vendor  and 

Purchaser,  I.  c. 

1.  An  abstracter  cannot  be  held  liable 
in  tort  for  negligence  in  making  or  certify- 
ing an  abstract  of  title.  Thomas  v.  Guaran- 
tee Title  &  T.  Co.  26:  1210,  91  N.  E.  183,  81 
Ohio   St.  432. 

2.  An  abstracter,  independently  of  eon- 
tract,  is  not  rendered  liable  to  a  subsequent 
grantee  for  errors  in  preparing  an  abstract 
of  title,  by  proof  of  knowledge  on  his  part 
of  a  custom  that  all  subsequent  parties  deal- 
ing with  the  title  abstracted  would  rely  up- 
on the  accuracy  of  his  abstract,  since  a  cus- 
tom cannot  create  a  liability  where  none 
otherwise  exists.  Thomas  v.  Guarantee  Title 
&  T.  Co.  26:  1210,  91  N.  E.  183,  81  Ohio  St. 
432. 

3.  An  abstracter  of  titles  must  fur- 
nish to  an  intending  purchaser  by  means  of 
the  abstract  everything  pertaining  to  the 
names  and  the  property  in  question,  so  far 
as  appears  from  the  record,  tliat  reasonably 
might  affect  such  title,  and  thus  put  the  pur- 
chaser on  inquiry,  in  order  that  such  pur- 
chaser may  himself  make  such  investiga- 
tion as  to  outside  facts  affecting  the  title 
which  are  indicated  there.  Stephenson  v. 
Cone,  26:  1207,  124  N.  W.  439,  24  S.  D.  460. 

(Annotated) 

4.  An  abstracter  who  leaves  off  from  a 
search  of  the  real  estate  title  of  Edward  J. 
B.  the  record  of  a  judgment  against  Ed.  J. 
B.  will  be  liable  to  one  having  a  right  to 
rely  on  his  abstract,  who  is  injured  by  such 
omission,  if  the  judgment  proves  to  have 
been  against  the  one  whose  title  he  was 
searching.  Stephenson  v.  Cone,  26:  1207, 
124   N.   W.   439,   24   S.   D.   400. 

5.  One  preparing  an  abstract  of  title 
to  real  estate  at  the  instance  of  the  own- 
er of  property,  which,  at  his  instance,  is 
delivered  to  a  stranger  whom  the  abstract- 
er knows  will  rely  upon  it  in  dealing  with 
the  property,  is  liable  to  him  for  losses  re- 
sulting from  a  material  error  or  omission 
in  the  abstract.  Anderson  v.  Spriesters- 
bach,  42:  176,  125  Pac.  166,  69  Wash.  393. 

(Annotated) 

6.  The  contract  of  a  title  guaranty  com- 
pany will  cover  an  abstract  of  a  will,  al- 
though it  is  filed  in  the  county  clerk's  office, 
and  not  in  that  of  the  county  register,  and 
the  abstract  purports  in  terms  to  cover  rec- 
ords in  the  register's  office,  where  the  will 
is  incorporated  as  an  item  in  the  abstract, 
and  is  necessary  to  make  a  complement  of 
the  instruments  mentioned  in  the  aggregate 
in  the  certificate  stating  tlie  conveyances  of 
the  property  which  the  abstract  covers. 
Equitable  Bldg.  &  L.  Asro.  v.  Bank  of  Com- 
merce &  T.  Co.  12:  449,  102  S.  W.  901,  118 
Tenn.  678. 

Digest  1-52  L.R.A.(N.S.) 


7.  A  customer  may  hold  an  abstracter 
of  title  to  property  liable  for  injury  to  him 
tlirough  reliance  upon  the  statement  in  the 
abstract  oi  the  contents  of  a  will,  if  the 
error  is  such  as  could  have  been  avoided  by 
the  exercise  of  ordinary  care  and  skill  on 
the  part  of  one  possessing  qualifications 
adapted  to  the  business  of  abstracting. 
Equitable  Bldg.  &  L.  Asso.  v.  Bank  of  Com- 
merce &  T.  Co.  12:  449,  102  S.  W.  901,  118 
Tenn,  678. 

8.  An  abstracter  of  titles  is  liable  for 
errors  only  to  the  person  to  whom  he  fur- 
nishes the  abstract,  and  cannot  be  made  to 
answer  to  one  to  whom  the  abstract  was 
presented  by  the  property  owner,  and  who 
loaned  money  in  reliance  thereon  witliout 
any  notice  to  the  abstracter  of  the  intended 
use  of  the  instrument.  Equitable  Bldg.  & 
L.  Asso.  V.  Bank  of  Commerce  &  T.  Co.  12: 
449,  102  S.  W.  901,  118  Tenn.  678. 

(Annotated) 

9.  Abstracts  of  title  in  abbreviated  lan- 
guage, which  are  put  in  evidence  by  agree- 
ment, may  be  interpreted  according  to  tiioir 
manifest  meaning,  although  the  meaning  is 
not  expressed  by  a  full  statement  in  words. 
Evans  v.  Foss,  9:  1039,  80  N.  E.  587,  194 
Mass.  513. 


ABUSE. 

As  assault,  see  Assault  and  Battery,  6. 
Of  passenger,  see  Carriers,  II,  d. 


ABUSE  OF  PROCESS. 

Wrongful  attachment,  see  Damages,  26, 
Punitive  damages  for,  see  Damages,  56-60. 
Measure  of  damages  for,  see  Damages,  III, 

g- 

Liability  for,  see  False  Imprisonment; 
Malicious  Prosecution, 

By  executor  in  suing  out  execution  upon 
judgment  of  foreclosure  in  favor  of  his 
intestate,  see  Levy  and  Seizure,  28, 

When  right  of  action  for,  arises,  see  Limi- 
tation OF  Actions,  182. 

Pleading  in  action  to  recover  damages  for, 
see  Pleading,  370, 

Direction  of  verdict,   see  Trial,   749, 

1 .  That  a  person  from  whom  money  has 
been  extorted  by  a  constable  by  abuse  of 
process  immediately  thereafter  consults  a 
lawyer,  but  does  not  take  steps  to  stop 
payment  on  a  check  of  a  third  person  which 
has  been  given  the  officer  in  payment  of  his 
demand,  does  not  bar  a  right  of  action  for 
the  abuse  of  process  and  extortion.  Mc- 
Clenny  v.  Inverarity,  24:  301,  103  Pac.  82, 
80  Kan.  569. 

2.  That  a  warrant  for  the  arrest  of  a 
person  upon  a  criminal  charge  is  good  upon 
its  face,  and  is  based  upon  a  complaint 
drawn  by  the  county  attorney,  does  not 
protect  an  officer  who  uses  the  process  to 
extort  money  by  making  threats,  display- 


ABUSIVE  LANGUAGE— ACCEPTANCE. 


ing  force,  and  using  intimidating  methods. 
McClenny  v.  Inverarity,  24:  301,  103  Pac. 
82,  80  Kan.  569.  (Annotated) 

3.  One  is  liable  in  an  action  for  ma- 
licious abuse  of  civil  process  who  fraudu- 
lently procures  a  judgment  upon  a  spu- 
rious claim,  causes  a  fi.  fa.  to  issue  thereon, 
and  directs  the  seizure  of  the  plaintiff's 
property  by  a  levying  officer,  which  is  avert- 
ed only  by  the  payment  of  the  fraudulent 
judgment  by  the  plaintiff's  wife  during  his 
absence.  Atlanta  Ice  &  Coal  Co.  v.  Reeves, 
36:  1112,  71  S.  E.  421,  136  Ga.  294. 

(Annotated) 

4.  The  bringing  of  a  suit  and  the  mak- 
ing of  an  attachment  therein  for  the  pur- 
pose of  preventing  a  conveyance  of  the 
property  to  an  intending  purchaser  con- 
stitute a  malicious  abuse  of  process,  for 
which  the  person  procuring  the  attachment 
may  be  held  liable.  Malone  v.  Belcher, 
49:  753.  103  N.  E.  637,  216  Mass.  209. 

5.  It  is  not  necessary,  in  order  to  main- 
tain an  action  for  abuse  of  process  by  caus- 
ing property  to  be  maliciously  attached,  to 
show  a  termination  of  the  suit  in  which  the 
attachment  was  made.  Malone  v.  Belcher, 
49:  753,  103  N.  E.  637,  216  Mass.  209. 

6.  The  fact  that  one  is  actuated  by  ma- 
licious motives  in  causing  an  attachment 
to  issue  will  not  render  him  liable  for  abuse 
of  process,  if  he  has  probable  cause  for  be- 
lieving in  the  claim  which  forms  the  foun- 
dation of  his  suit.  Malone  v.  Belcher, 
49:  753,  103  N,  E.  637,  216  Mass.  20y. 

7.  The  plaintiff  in  an  action  for  abuse 
of  process  must  show  malice  and  want  of 
probable  cause.  Malone  v.  Belcher,  49:  753, 
103  N,  E.  637,  216  Mass.  209. 


ABUSIVE   LANGUAGE. 

Eight  of  action  for  causing  relapse  of  con- 
valescent woman   by,  see  Case,  2. 

As  justification  for  killing,  see  Death,  43. 

As  provocation  for  killing,  see  Homicide, 
70,  71. 


ABUTTING  OW^NERS. 

Requiring  consent  of,  to  standing  of  hacks 
in  street,  see  Constitutional  Law, 
254. 

Compensation  to,  for  construction  of  tele- 
graph and  telephone  line  in  highway, 
see  Damages,  4;  Trial,  995. 

Nominal  damage  to,  for  taking  fee  of  street 
which  had  been  platted  by  owner,  see 
Damages,  5. 

Measure  of  damages  to,  in  condemnation 
proceedings,  see  Damages,  III.  1,  4. 

What  constitutes  a  taking  of  property  of, 
see  Eminent  Domain,  III.  b,  2. 

Compensation  for  taking  rights  of,  see 
Eminent  Domain,  225-232,  259,  260, 
264,  270. 

Additional  servitude  as  against,  see  Emi- 
nent Domain,  IV.  b. 

Digest  1-52  KR.A.(N.S.) 


Evidence  on  question  of  damages  to,  see 
Evidence,  1696,   1748. 

Rights  in  and  title  to  highways,  see  High- 
ways, II. 

Private  remedy  for  obstruction  of  street, 
see  Highways,  88,  94,  95. 

Rights  of,  as  against  railway  in  street,  see 
Highways,  96-101. 

Rights  of,  as  to  trees  in  street,  see  High- 
ways, II.  e,  1. 

Injury  to,  by  improving  or  repairing  high- 
way, see  Highways,  III. 

Damages  for  change  of  grade,  see  Damages, 
6. 

Limitation  of  action  for  injuries  to,  by 
change  in  street  grade,  see  Limitation 
OF  Actions,  258. 

Municipal  liability  for  injury  to  private 
property  by  sliding  of  soft  earth  there- 
on in  bringing  highway  to  grade,  see 
Master  and  Servant,   1004,   1005. 

Liability  of,  for  injury  to  person  on  high- 
way, see  Highways,  IV.  b,  3. 

Right  to  have  highway  kept  open,  see 
Highways,  V.  b,  2. 

Injunction  against  excavating  under  side- 
walk, see  Injunction,  369. 

Right  to  injunction,  see  Injunction,  I.  1. 

Remedy  of,  to  prevent  maintenance  of  nui- 
sance, see  Nuisances,  II.  a. 

Right  of  owners  of  land  abutting  on  park 
to  cut  grass  in  park,  see  Parks,  2. 

Duty  and  liability  as  to  public  improve- 
ments generally,  see  Public  Improve- 
ments. 

See  also  Adjoining  Owners. 


ACCELERATION. 


Of  disease  of  insured  by  accident,  see  In- 
surance, 493. 
Of  maturity  of  debt,  see  Tender,  15. 
Of  remainder,  see  Wills,  III.  h. 


ACCEPTANCE. 


Of  assignment  of  contract,  see  Assign- 
ment, 23. 

Of  check,  see  Banks,  106. 

Of  negotiable  paper,  see  Bills  and  Notes, 
II. 

Of  charitable  trust,  see  Charities,  40,  41. 

Of  offer,  see  Contracts,  I.  d,  4. 

Of  performance  of  contract,  see  Contracts, 
IV.  c,   3. 

Of  dedication,  see  Dedication,  II. 

Of  insurance  risk,  see  Evidence,  551;  In- 
surance, 82,   121-127. 

Of  deed,   see   Evidence,   563-566. 

Of  gift,  see  Evidence,  600. 

Of  contract  for  services,  see  Evidence, 
1939. 

Of  surrender  of  leased  property,  see  Evi- 
dence, 2281;  Landlord  and  Tenant, 
60,  61. 


8 


ACCESS— ACCOMMODATION  PAPER. 


Of  unsigned  letter  containing' proposed  con- 
tract, see  Evidence,  907. 

Of  guaranty,  see  Guaranty,  11-16. 

Of  highway,  see  Highways,  9,  10. 

Of  insurance  policy,  see  Insurance,  128- 
137. 

Of  resignation  from  public  ofTice,  see  Of- 
ficers, 49. 

Of  redelivery  of  replevined  property,  see 
Replevin,  39,  40. 

Of  order  for  goods,  see  Sale,  4-6. 

By  purchaser,  see  Sale,  I.  d. 

Of  provisions  of  will,  see  Wills,  III.  i. 

Of  service  of  process,  see  Writ  and  Proc- 
ess, 31. 


ACCESS. 

To  street  or  highway,  see  Constitutional 
Law,  363;  Eminent  Domain,  198- 
201,  259,  260,  264,  270,  283 ;  Estoppel, 
31;  Evidence,  227;  Highways,  96. 

Easement  of,  see  Easements,  96. 

Riparian  owner's  right  to,  see  Eminent 
Domain,  29;  Estoppel;  Jxhjgment, 
79;  Nuisances,  108;  Waters,  101- 
105,  164. 

Right  of  public  to  cross  private  property  to 
reach  navigable  waters,  see  Waters, 
34. 

Injunction  to  protect  right  of,  see  Injunc- 
tion, 415. 


ACCESSION  AND  CONFUSION. 

1.  The  general  rule  that  an  accession 
falls  to  the  principal  applies  to  sacks  sup- 
plied by  a  dealer  in  flour  to  a  manufacturer, 
to  be  used  in  the  production  of  sacks  of 
flour  for  the  market;  and  the  claim  of  a 
dealer  to  the  sacks  of  a  car  load  of  sacks  of 
flour  which  a  carrier  has  received  from  the 
manufacturer  for  transportation  according 
to  the  shipper's  order  will  not  justify  the 
carrier  in  withholding  delivery  according  to 
such  order.  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Schriver,  4:1056,  84  Pac.  119,  72  Kan.  550. 

2.  A  township,  the  treasurer  of  which 
has  used  its  funds  to  purchase  stock  used 
in  his  business,  may  enforce  a  lien  for  the 
amount  so  appropriated  upon  the  stock  in 
the  hands  of  his  trustee  in  bankruptcy,  al- 
though the  funds  have  been  commingled 
with  the  goods  belonging  to  the  bankrupt 
so  that  they  cannot  be  identified.  Smith  v. 
Au  Ores  Twp.  9:  876,  150  Fed.  257,  80  C. 
C.  A.  145.  (Annotated) 


ACCESSORY. 


See  Criminal  Law,  I.  e;  Homicide,  47-49. 
Digest  1-52  KILA.CN.S.) 


ACCIDENT. 

Causing  injury  to  passenger,  see  Carriers, 
II. 

Elevator  accident,  see  Elevators. 

Presumption  of  negligence  from,  see  Evi- 
dence, II.  h. 

Evidence  of  declarations  as  to,  see  Evi- 
dence,   1370-1373,    1411-1425. 

Evidence  of  absence  of  previous  accidents, 
see  Evidence,  1804. 

Evidence  of  precautions  after,  see  Evi- 
dence,   1820-1823. 

Evidence  of  otlier  accidents,  see  Evidence, 
1853-1864. 

On  highways,  see  Highways,  IV. 

Liability  of  infant  for  results  of,  see  In- 
fants, 58. 

As  cause  of  death  or  injury  of  insured,  see 
Insurance,  VI.  b,  3. 

Proximate  cause  of,  see  Proximate  Cause. 

To  person  on  railroad  track  or  at  crossing, 
see  Railroads,  II.  d,  e. 

Street  railway  accidents,  see  Street  Rail- 
ways, III. 

Question  for  jury  as  to,  see  Trial,  168,  169. 

As  to  negligence,  generally,  see  Negli- 
gence. 

See  also  Act  of  God. 


ACCIDENTAL  MEANS. 

Injury  or  death  of  insured  by,  see  Insur- 
ance, VI.  b,  3,  c. 


ACCIDENT  INSURANCE. 

Notice  of  injury  or  death,  see  Insurance, 

VI.  a. 
Cause   of   injury   or   death   of   insured,   see 

Insurance,  VI.  b,  3. 
Extent  of  recovery,  see  Insurance,  VI.  c, 

2. 
Limitation  of  time  to  sue,  see  Insurance, 

VL  h,  3. 
Insurance  against  liability  for  accident  to 

employee,  see  Insurance,  916-935. 


ACCOMMODATION  PAPER. 

Preference  by  bankrupt  to  one  executing, 
see  Bankruptcy,  77. 

Rights  on  generally,  see  Bills  and  Notes, 
72,    73,    143,    144,    186,    187,   203. 

Transfer  after  maturity,  see  Bills  and 
Notes,  130. 

Liability  of  accommodation  indorser,  see 
Bills  and  Notes,  87,  107. 

Implied  contract  by  maker  to  reimburse 
accommodation  indorser,  see  Con- 
tracts,  9. 

Power  of  corporation  to  issue,  see  Corpo- 
rations,  73-75. 

Implied  power  of  agent  to  sign  corporate 
name  to,  see  Corporations,  142. 


AOOOMPLICE>  ACCORD  AND    SATISFACTION. 


9 


ACCOMPLICE. 

Immunity  to,  in  exchange  for  testimony, 
see  Appeal  and  Error,  47;  Criminal 
Law,  152. 

Conviction  on  contradictory  evidence  of, 
see  Appeal  and  Error,  923. 

Prejudicial  error  in  admonition  by  judge 
to  accomplice  taking  witness  stand, 
see  Appeal  and  Error,  1467. 

Corroboration  of  testimony  of,  see  Appeal 
AND  Error,  924-926;  Evidence,  2366- 
2368;   Witnesses,  194. 

Liability   of,    see   Criminal   Law,   I.   e. 

Who    aie,    see    Evidence,    2369-2372. 

Proof  of  acts  or  declarations  of,  see  Evi- 
dence, X.  g. 

Weight  of  testimony  of,  see  Evidence, 
2364-2372. 

Sufficiency  of  evidence  by,  to  sustain  con- 
viction,  see  Evidence,   2364-2372.     • 

Question  for  jury  as  to,  see  Trial,  266, 
267. 

Instructions  assuming  witness  was  accom- 
plice, see  Trial,  1066, 


ACCORD  AND  SATISFACTION. 

As  to  compromise  and  settlement,  see  Com- 
promise and  Settlement. 

Evidence  to  show,  see  Evidence,   807. 

Distinction  between  accord  and  novation, 
see  Novation,  3. 

What  constitutes  plea  of,  see  Pleading, 
165. 

Necessity  of  pleading,  see  Pleading,  452. 

Sufficiency  of  release  to  sustain  plea  of, 
see  Release,  12. 

1.  To  constitute  an  accord  and  satisfac- 
tion there  must  have  been  in  fact  and  in 
reality  a  meeting  of  the  minds  in  accord 
and  in  satisfaction.  Wolfe  v.  Humboldt 
County,  45:  762,   131   Pac.  964,  36  Nev.  26. 

2.  The  fact  that  receipt  for  payment  of 
an  account  for  work  and  labor,  without  in- 
terest on  the  same,  may  have  been  given 
under  protest  by  the  creditor,  does  not 
change  the  legal  effect  of  his  act  so  as  to 
enable  him  to  maintain  a  subsequent  sep- 
arate suit  to  recover  the  interest.  Bennett 
V.  Federal  Coal  &  Coke  Co.  40:  588,  74  S.  E. 
418,  70  W.  Va.  456. 

3.  Where  one  to  whom  is  owing  a  sum 
of  money  for  work  and  labor  accepts  cer- 
tain notes  and  a  check  in  settlement  of  the 
account,  giving  his  receipt  therefor,  without 
including  interest  on  the  account  previous 
to  the  date  of  the  settlement,  there  being 
no  express  contract  on  the  part  of  the 
debtor  to  pay  interest,  a  separate  action  to 
collect  such  interest  cannot  be  maintained. 
Bennett  v.  Federal  Coal  &  Coke  Co.  40:  588, 
74  S.  E.  418,  70  W.  Va.  456.  (Annotated) 
By  part  payment   generally. 

4.  A  plea  of  payment  of  a  less  amount 
than  is  acknowledged  to  be  due,  which  was 
borrowed  for  the  purpose,  and  a  satisfac- 
tion and  release  of  all  claims  and  demands, 
Dieest  1-52  KR.A.CN.S.) 


I  is  not  sufficient  as  one  of  accord  and  satis- 
faction. Schlessinger  v.  Schlessinger,  8: 
863,  88  Pac.  970,  39  Colo.  44. 

5.  The  common-law  rule  that  payment 
by  a  debtor,  and  receipt  by  the  creditor, 
of  a  less  sum  than  is  due  upon  an  undis- 
puted, liquidated  demand,  is  not  satisfac- 
tion of  the  debt  although  the  creditor 
agrees  to  accept  it  as  such,  is  inapplicable 
to  a  balance  claimed  for  interest  on  the  im- 
plied contract  of  the  debtor  to  pay  interest 
on  an  account  for  work  and  labor,  after 
the  creditor  has  accepted  certain  notes  and 
a  check  in  payment  of  the  account,  without 
including  interest.  Bennett  v.  Federal  Coal 
&  Coke  Co.  40:  588,  74  S.  E.  418,  70  W.  Va. 
456. 

6.  Where  unliquidated  claims  against 
a  county  are  duly  presented  to  its  board 
of  county  commissioners  for  allowance,  and 
the  claims  are  considered  together  and  al- 
lowed at  a  lump  sum  less  than  the  amount 
claimed,  and  a  warrant  is  drawn  for  the 
amount  so  allowed,  which  warrant  is  ac- 
cepted by  the  claimant,  such  acceptance  is 
presumed  to  be  in  full  payment  of  the 
claims  presented,  and  claimant  cannot  ac- 
cept said  warrant  and  credit  the  amount 
thereof  upon  the  total  of  the  claims  pre- 
sented, and  then  sue  for  the  balance.  Paul- 
son V.  Ward  County,  42:  iii,  137  N.  W. 
486,  23  N.  D.  601.  (Annotated) 

7.  Acceptance  of  the  portion  of  a  claim 
against  a  county  for  statutory  fees  of  a 
constable  which  is  allowed  by  the  commis- 
sioners does  not,  since  the  demand  is  a 
liquidated  one,  per  se  bar  a  recovery  of  the 
residue  on  the  principle  of  accord  and  sat- 
isfaction, under  a  statute  requiring  presen- 
tation of  demands  for  allowance,  and  au- 
thorizing suit  if  the  board  refuses  to  allow 
the  same  or  any  part  thereof.  Wolfe  v. 
Humboldt  County,  45:  762,  131  Pac.  964, 
36  Nev.  26. 

8.  Receipt  by  an  injured  employee  of 
all  the  benefits  to  whicli  he  is  entitled  by 
the  rules  of  a  relief  department  established 
by  his  employer  will,  if  he  acts  voluntarily 
and  without  undue  influence,  bar  an  action 
to  hold  the  employer  liable  for  negligence, 
but  a  receipt  of  only  part  of  them  will  not 
do  so,  in  the  absence  of  an  express  stipula- 
tion to  that  effect.  King  v.  Atlantic  C.  L. 
R.  Co.  48:  450,  72  S.  E.  801,  157  N.  C.  44. 

9.  That  one  having  claim  under  a 
written  contract  cancels  the  contract  upon 
receiving  part  of  the  amount  due  does  not 
preclude  a  recovery  of  the  remainder. 
Schlessinger  v.  Schlessinger,  8:  863,  88  Pac. 
970,  39  Colo.  44. 

Retaining  check  or  w^arrant  tendered 
as  in  full  payment. 

10.  One  receiving  a  check  for  less  than 
the  amount  in  dispute  on  an  unliquidated 
claim,  which  is  tendered  upon  express  con- 
dition that  it  shall  be  in  full  satisfaction, 
must  return  it  or  be  bound  by  the  condi- 
tion, unless  it  is  .waived.  Seeds  Grain  & 
Hay  Co.  v.  Conger,  32:  380,  93  N.  E.  892, 
83  Ohio  St.   169. 

11.  Failure  of  one  who  has  tendered  a 
check   for   less   than  is  claimed   on   an   un- 


to 


ACCORD  AND  SATISFACTION. 


liquidated  disputed  demand,  upon  express 
condition  that  it  shall  be  received  in  full 
satisfaction,  to  reply  upon  receiving  notice 
that  the  check  has  been  placed  to  his  cred- 
it but  does  not  close  the  account,  does  not 
amount  to  a  waiver  or  withdrawal  of  the 
condition.  Seeds  Grain  &  Hay  Co.  v.  Con- 
ger, 32:  380,  1)3  N.  E.  892,  83  Ohio  St.  169. 

12.  One  who  accepts  and  appropriates  to 
his  own  use  a  check  tendered  in  full  satis- 
faction of  an  unliquidated  account  cannot 
avoid  its  effect  as  an  accord  and  satisfac- 
tion by  notifying  the  drawer  that  it  is  ac- 
cepted only  as  part  payment,  and  that  pay- 
ment of  the  balance  will  be  required.  Bar- 
ham  v.  Bank  of  Delight,  27:  439,  126  S.  W. 
394,  94  Ark.  158.  (Annotated) 

13.  Procuring  the  certification  of  a 
check  sent  in  full  payment  of  a  claim  for 
a  larger  amount  constitutes  an  acceptance 
which  will  amount  to  satisfaction  of  the 
claim,  although  the  creditor  holds  the 
check  without  collecting  the  money  on  it, 
and  notifies  the  maker  that  he  cannot  use 
it  except  as  part  payment.  Scheffenacker 
v.  Hoopes,  29:  205,  77  Atl,  130,  113  Md. 
Ill,  (Annotated) 

14.  One  who  accepts  in  payment  of  over- 
due accounts  upon  which  interest  is  due, 
which  is  not  provided  in  the  contract,  checks 
containing  a  statement  of  the  account,  with- 
out interest,  and  bearing  the  announce- 
ment "in  full  payment  of  above  account," 
waives  his  right  subsequently  to  claim  the 
interest,  although  he  understands  that  the 
question  of  right  to  interest  was  left  open, 
and  as  to  the  portion  of  the  interest  claimed 
so  notified  the  one  making  the  payment. 
Bassick  Gold  Mine  Co.  v.  Beardsley,  33:  852, 
112  Pac.  770,  49  Colo.  275. 

15.  Acceptance  by  a  creditor  of  a  check 
mailed  him  by  his  debtor  for  a  sum  less 
than  the  amount  due,  but  which  the  debtor 
believes  in  good  faith  to  be  all  that  is  due 
or  claimed  by  the  creditor,  does  not  consti- 
tute a  payment  made  in  settlement  of  a  dis- 
puted claim,  and  is  not  an  accord  and  satis- 
faction, although  the  debtor  marks  upon 
the  margin  of  the  check,  "in  full  to  date," 
and  describes  it  in  the  account  which  he 
renders,  as  "check  to  balance  in  full."  Cana- 
dian Fish  Co.  V.  McShane,  14:  443,  114  N. 
W.   694,   80  Neb.   551.  (Annotated) 

16.  Cashing  a  check  sent  in  payment  of 
the  portion  of  an  account  which  is  admitted 
to  be  due  does  not  prevent  enforcement  of 
the  balance,  although  the  tender  is  on  con- 
dition that  it  shall  be  received  in  full  pay- 
ment. Whittaker  Chain  Tread  Co.  v. 
Standard  Auto  Supply  Co.  51:  315,  103  N. 
E.  695,  216  Mass.  204. 

17.  Incorporation  in  a  check  given  in 
partial  payment  on  a  compromise  agiee- 
ment,  of  language  releasing  the  payor  from 
all  claims  and  damages,  will  not  release  him 
from  compliance  with  the  agreement,  un- 
less it  clearly  appears  that  it  was  the  in- 
tention of  both  parties  that  the  check  should 
be  in  full  payment  of  all  claims  and  de- 
mands whatsoever.  Heath  v.  Potlatch  Lum- 
Digest  1-52  L.ItJ^.(N.S.) 


ber    Co.    27:  707,    108    Pac.    343,    18    Idaho, 
42. 

18.  Retention  by  an  employee  of  a  clieek 
given  by  the  employer,  and  reciting  tliat  it 
is  the  return  in  full  of  a  cash  bond,  less  a 
sum  of  money  wrongfully  a])proj)riated  by 
the  employee,  does  not  constitute  an  accord 
and  satisfaction,  since  the  employer  yielded 
no  part  of  his  claim,  and  suffered  no  detri- 
ment by  paying  only  what  he  admitted  was 
due  and  pavable.  Demeules  v.  Jewel  Tea  Co. 
14:  954,  114  N.  W.  733,  103  Minn.  150. 

19.  A  bank  which  holds  a  warrant  is- 
sued to  it  by  a  municipal  corporation  under 
an  agreement  between  the  bank  and  a  con- 
tractor, whereby  tlie  bank  was  to  furnish 
the  contractor  money  for  the  construction 
of  a  bridge  for  the  city,  as  security  for  which 
all  warrants  and  payment  therefor  were  to 
be  issued  to  the  bank,  has  no  authority, 
by  reason  of  such  agreement,  to  compromise 
a  dispute  between  the  contractor  and  the 
city  as  to  the  amount  due  the  former,  by 
accepting  the  warrant  against  the  express 
direction  of  the  contractor,  where  it  pur- 
ports to  be  in  full  payment  and  is  for  a  less 
amount  than  that  claimed  by  the  creditor  to 
to  be  due  him,  so  as  to  work  an  accord  and 
satisfaction  between  the  contractor  and  the 
city.  Matheney  v.  Eldorado,  28 :  980,  109 
Pac.   166,  82  Kan.   720. 

20.  The  drawing  of  money  on  a  warrant 
given  in  full  payment  for  the  construction 
of  a  bridge  for  a  city,  by  a  bank  with  whom 
it  had  been  deposited  under  an  agreement 
between  it  and  the  builder,  whereby  the  bank 
was  to  furnish  money  for  the  construction, 
and  all  warrants  therefor  were  to  be  made 
payable  to  it,  without  the  consent  or  knowl- 
edge of  the  builder  and  after  it  had  been 
notified  that  the  warrant  must  not  be  ac- 
cepted in  full  payment  because  a  dispute 
had  arisen  as  to  the  amount  due,  and  a 
larger  sum  was  claimed  than  that  for  which 
the  warrant  was  drawn,  does  not  operate  as 
an  accord  and  satisfaction  of  the  amount 
claimed  by  the  builder,  so  as  to  preclude  his 
recovering  that  amount  from  the  city. 
Matheney  v.  Eldorado,  28:  980,  109  Pac.  166, 
82  Kan.  720. 

Agreement    to    accept    less    than    full 
amount. 

21.  The  satisfaction  of  a  debt  on  receipt 
of  30  per  cent  of  its  amount  is  supported 
by  a  sufficient  consideration,  where  the 
debtor  contemplated  bankruptcy,  and  the 
creditor  dissuaded  him  therefrom  and  ac- 
cepted his  offer  of  30  per  cent  in  satisfaction 
of  the  debt,  received  the  amount,  and  closed 
the  account.  Melroy  v.  Kemmerer,  11: 
1018,  67  Atl.  699,  218  Pa.  381.      (Annotated) 

22.  An  accrued  claim  growing  out  of  a 
contract  for  support  upon  separation  of 
husband  and  wife  would  not  be  affected  by 
a  discharge  in  bankruptcy;  and  an  agree- 
ment not  to  resort  to  voluntary  bankrupt- 
cy is  therefore  not  a  consideration  for  an 
acceptance  of  a  portion  of  the  claim  in 
satisfaction  of  the  whole.  Schlessinger  v. 
Schlessinger,  8:  863,  88  Pac.  970,  39  Cola. 
44. 


ACCOUNTANTS— ACCOUNTING. 


11 


ACCOUNTANTS. 

Nature  of  action  to  recover  damages  for 
negligence  of  accountant,  see  Action 
OR  Suit,  80. 

Splitting  of  cause  of  action  for  negligence, 
see  Action  or  Suit,  88. 

Proximate  consequences  of  failure  of  ac- 
countant to  make  proper  audit,  see 
Proximate  Cause,  27. 

1.  One  who  holds  himself  out  as  an 
expert  accountant,  and  accepts  employment 
as  such,  impliedly  represents  that  he  pos- 
sesses the  ability  and  skill  of  the  average 
person  engaged  in  that  branch  of  skilled 
labor.  East  Grand  Forks  v.  Steele,  45:  205, 
141  N.  W.  181,  121  Minn.  296.    (Annotated) 

2.  Compensation  paid  an  expert  ac- 
countant in  reliance  upon  his  report  that 
he  has  made  a  complete  and  correct  audit 
may  be  recovered  back  on  proof  that, 
through  his  negligence,  the  audit  is  in  sub- 
stance false.  East  Grand  Forks  v.  Steele, 
45:  205,  141  N.  W.  181,  121  Minn.  296. 


ACCOUNT  BOOKS. 

As  evidence,  see  Evidence,  IV.  j. 

Admissibility  in  evidence,  see  Evidence, 
725-727. 

Condition  in  insurance  policy  as  to  keep- 
ing, and  place  of  keeping,  see  Insur- 
ance, III.  e,  1,  d. 

.^ «-*~»^ 


ACCOUNTING. 


Conditions  precedent  to  action  for  account- 
ing, see  Action  or  Suit,  26. 

Including  in  bill  for  accountihg  claim  for 
damages  recoverable  at  law,  see  Ac- 
tion or  Suit,  123. 

Multifariousness  of  bill  for,  see  Action  or 
Suit,  128. 

By  loan  association,  see  Building  and 
Loan  Associations,  7. 

Between  insolvent  building  and  loan  asso- 
ciation and  borrowing  member,  see 
Building  and  Loan  Associations,  30. 

For  proceeds  of  insurance  on  cargo  for  ac- 
count of  whom  it  may  concern,  see 
Cabriebs,  767 

Prescribing  uniform  system  of  accoimting 
and  bookkeeping  for  carriers,  see  Con- 
stitutional Law,  114,  442;  Inter- 
state Commerce  Commission,  6-10. 

Eight  of  minority  stockholders  to  account- 
ing by  lessee  of  property,  see  Corpo- 
rations, 273. 

As  between  cotenants,  see  Cotenancy,  2,  7. 

Right  of  creditors  of  insolvent  corporation 
which  has  transferred  assets  to  succes- 
sor to  accounting,  see  Corporations,  25. 

Estoppel  to  use  other  remedy  by  bringing 
action  for,  see  Election  of  Remedies, 
30. 

When  equity  will  take  jurisdiction  on 
grounds  of,  see  Equity,  9. 

For  profits,  on  grant  of  injunction  to  re- 
strain use  of  tradename,  see  Equity, 
129. 

Digest  1-52  I..R.A.(N.S.) 


By  heir  for  money  received  from  father's 
executor;  burden  of  showing  amount 
received,  see  Evidence,  655. 

By  personal  representatives,  see  Executors 
AND  Administrators,  IV.  c. 

By  creditor  of  insolvent,  receiving  prop- 
erty materially  greater  in  value  than 
his  debt,  see  Fraudulent  Convey- 
ances,  40. 

Necessity  for,  as  justifying  injunction  to 
restrain  actions  on  insurance  policies, 
see  Injunction,   265. 

Suit  for,  by  holder  of  tontine  policy,  see 
Parties,  169;  Pleading,  156. 

Between  partners,  see  Partnership,  59'— 
64;   Writ  and  Process,  28. 

Right  of  creditor  receiving  payment  out  of 
net  profits  of  business  to  maintain  suit 
for  accounting  as  proof  of  partnership, 
see  Partnership,  7. 

Pleading  in  action  by  stockholders  for,  see 
Pleading,  198. 

By  agent,  see  Principal  and  Agent,  19, 
98. 

By  trustee,  see  Trusts,  80. 

Competency  of  witness  in  action  for,  see 
Witnesses,  60. 

See  also  Accounts.  .; 

1.  The  grantee  of  a  mortgagor  may 
maintain  a  bill  in  equity  for  an  accounting 
from  the  mortgagee  after  foreclosure,  for  the 
fair  value  of  the  equity  of  redemption,  which 
was  hurt  by  a  cloud  cast  on  the  title  by  an 
earlier  illegal  sale  under  the  mortgage. 
Manville  Covering  Co.  v.  Babcock,  14:  900, 
68  Atl.  421,  28  R.  L  496.  (Annotated) 

2.  An  accounting  may  be  had  as  inci- 
dent to  the  relief  granted  in  a  suit  in  equity 
by  several  riparian  owners  to  compel  the 
abatement  of  a  dam  maintained  lower  down 
the  stream  to  the  injury  of  their  lands. 
Cloyes  v.  Middlebury  Electric  Co.  11:  693, 
66  Atl.  1039,  80  Vt.  109. 

3.  Where  restoration  of  property  the 
sale  of  which  is  sought  by  bill  in  equity  to 
be  set  aside  has  become  impracticable,  the 
court  may  state  an  account  between  the 
parties,  and  decree  the  payment  of  the  value 
of  the  property  received,  although  such  re- 
lief is  not  asked  by  the  bill.  Swan  v.  Tal- 
bot, 17:  1066,  94  Pac.  238,  152  Cal.  142. 

4.  Upon  trial  of  a  suit  to  cancel  a  deed 
made  in  drunkenness,  equity  may  also  com- 
pel an  accounting  as  to  a  cash  payment  which 
the  vendor  had  returned  to  the  purchaser. 
Miller  v.  Sterringer,  25:  596,  66  S.  E.  228, 
66  W.  Va.   169. 

5.  Where  the  primary  right  of  which 
the  complainant  is  seeking  the  enforcement 
in  a  suit  in  equity  is  strictly  legal,  the 
mere  fact  that  the  bill  prays  for  a  dis- 
covery presents  no  ground  for  extending  the 
jurisdiction  of  equity  to  compel  the  defend- 
ant to  account.  Franklin  Twp.  v.  Crane, 
(N.  J.  Err.  &  App.)  43:  604,  85  Atl.  408, 
80  N.  J.  Eq.  509. 

6.  A  court  of  equity  will  not  entertain 
jurisdiction  of  a  suit  brought  by  a  town- 
ship against  a  tax  collector  of  such  town- 
ship for  an  accounting  by  him  and  the  col- 
lection of  tax  moneys  unlawfully  appropri- 


12 


ACCOUNTS. 


ated  or  wasted  by  him,  for  the  reason  that 
adequate  remedies  against  such  collector 
to  enforce  such  accounting  and  collection 
are  available  at  law.  Franklin  Twp.  v. 
Crane  (N.  J.  Err.  &  App.)  43:604,  85  Atl. 
408,  80  N.  J.  Eq.  509, 

7.  The  unlawful  production  and  sale 
by  a  publishing  company,  of  volumes  of 
court  reports,  by  the  use  of  uncopyrighted 
manuscripts  and  stereotyped  plates  in- 
trusted to  it  by  the  state  to  enable  it  to 
perform  its  contract  to  manufacture  vol- 
umes of  the  reports  for  the  state,  do  not 
give  the  latter  title  to  the  books  so  unlaw- 
fully produced,  so  as  to  entitle  it  to  an  ac- 
counting of  the  proceeds  of  sales  made. 
State  V.  State  Journal  Co.  9:  174,  106  N. 
W.  434,  75  Neb.  275,  110  N.  W.  763,  77 
Neb.  752. 

8.  A  son  who  was  physically  weak  and 
vacillating  by  nature,  who  lived  with  his 
mother,  a  mentally  strong  and  alert  woman, 
and  who  managed  her  property,  will  not  be 
required  to  render  an  account  after  her 
death,  where  she  required  him  to  keep  no 
books,  and  never  expressed  dissatisfaction 
with  the  manner  in  which  he  applied  the 
proceeds  of  the  property.  Barnett  v.  Kemp, 
52:  1185,   167    S.   W.   546,   258   Mo.    139. 

9.  The  holder  of  a  tontine  life  insur- 
ance policy  is  entitled,  upon  its  maturity, 
to  an  accounting  by  the  insurer  of  the 
amount  due  upon  it.  Equitable  L.  Assur. 
Soc.  v.  Winn,  28:  558,  126  S.  W.  153,  137 
Ky.   641.  (Annotated) 


ACCOUNTS. 


Bight  to  split  into  different  demands,  see 
Action  ob  Suit,  92. 

Disbarment  of  attorney  for  failing  to  keep 
accounts  of  clients,  see  Attorneys,  20. 

EfTect  of  failure  to  keep,  on  right  to  dis- 
charge in  bankruptcy,  see  Bank- 
KUPTCY,   152. 

Prescribing  uniform  system  of  accounting 
and  bookkeeping  for  carriers,  see  Con- 
stitutional Law,  114,  442;  Intek- 
BTATE  Commerce  Commission,  6-10. 

Estoppel  to  set  up  incorrectness  of  account 
stated,  see  Estoppel,  130. 

Sufficiency  of  stated  account  resting  in 
parol  to  toll  statute  of  limitations,  see 
Contracts,  198. 

Agreement  to  assume  "outstanding  and 
open  account,"  see  Contracts,  373; 
Evidence,  966. 

Best  and  secondary  evidence  of,  see  Evi- 
dence, 725-727. 

As  evidence,  see  Evidence,  IV.  j. 

Of  partnership,  right  to  inspect  through 
agent,  see  Partnership,   57,   58. 

Application  of  payments  on,  see  Payment, 
IV, 

Pledge  of,  see  Pledge  and  Collateral  Se- 
curity, 1. 

Refusal  by  agent  to  permit  inspection  of, 
as  ground  for  discharge,  see  Princi- 
pal AND  Agent,  17. 

What  is  an  account  which  can  be  referred, 
see  Reference,  12. 

Dieest  1-52  Ii.R.A.(Kr.S.) 


Compulsory  reference  of  long  accounts,  see 
Reference,   14. 

Inspection  of,  as  unlawful  search,  see 
Search  and  Seizure,  3. 

Taxation  of  outstanding  accounts,  see 
Taxes,  68. 

Patentability  of  system  of  checking  ac- 
counts of  waiters,  see  Patents,  2. 

See  also  Accounting. 

1.  The  expression,  "outstanding  and 
open  account,"  has  a  well-defined  meaning 
in  legal  and  commercial  transactions,  and 
does  not  include  bills  of  exchange,  promis- 
sory notes,  or  other  written  evidences  of  in- 
debtedness. Kramer  v.  Gardner,  22:  492, 
116  N.  W.  925,  104  Minn.  370. 

2.  To  give  an  account  rendered  the 
force  of  an  account  stated,  because  of 
silence  on  the  part  of  the  party  sought  to 
be  charged,  it  must  appear  that  the  ac- 
count was  rendered  to  that  person.  Unit- 
ed Hardware-Furniture  Co.  v.  Blue,  35: 
1038,  52  So.  364,  59  Fla.  419. 

3.  Mere  retention  of  an  account  ren- 
dered is  not  sufficient  to  constitute  it  an 
account  stated.  Shaw  v.  Lobe,  29:  333, 
108  Pac.  450,  58  Wash.  219.       (Annotated) 

4.  A  promise  to  settle  an  unliquidated 
claim  for  tort  at  a  stipulated  sum  will  not 
sustain  an  action  of  assumpsit  as  upon  an 
account  stated.  Pudas  v.  Mattola,  45:  534, 
138  N.  W,  1052,  173  Mich.  189. 

(Annotated) 

5.  The  calculation  of  the  interest  due 
on  a  promissory  note,  and  a  statement  to 
the  maker  of  the  amount  found,  and  his 
acquiescence  therein,  do  not  constitute  an 
account  stated  upon  which  the  holder  can 
maintain  an  action,  and  ignore  the  note. 
Jasper  Trust  Co.  v.  Lamkin,  24:  1237,  50  80. 
337,  162  Ala.  388. 

6.  The  statement  of  the  amount  of 
principal  and  interest  due  on  a  promissory 
note,  and  of  an  additional  sum  in  hand 
paid,  which  is  necessary  to  equal  the 
amount  of  a  judgment  transferred  in  con- 
sideration of  such  amount,  does  not  consti- 
tute an  account  stated  which  will  sustain 
an  action  in  case  the  transfer  of  the  judg- 
ment proves  to  be  ineffectual.  Jasper  Trust 
Co.  V.  Lamkin,  24:  1237,  50  So.  337,  162  Ala. 
388.  (Annotated) 

7.  Failure  to  question  a  statement  of 
account  for  personal  services  under  an  ex- 
press contract  to  pay  a  specified  sum  for 
specified  service  does  not  render  it  an  ac- 
count stated.  Thomasma  v.  Carpenter,  45: 
543,   141   N.  W.  559,   175   Mich.  428. 

8.  A  charge  for  services  by  an  attor- 
ney, which  is  accepted  by  the  client,  be- 
comes an  account  stated,  and  cannot  be  re- 
opened except  for  fraud  or  mistake,  al- 
though the  account  of  collections  in  which 
it  is  embodied  is  disputed,  so  that  it  be- 
comes a  matter  of  litigation.  Lane  &  B. 
Co.  v.  Taylor,  7:  924,  97  S.  W.  441,  80  Ark. 
409.  (Annotated) 

9.  One  to  whom  an  account  is  rendered 
which  contains  an  excessive  interest  charge 
on    moneys    advanced   by   the    other    party 


ACCOUNTS  STATED— ACKNOWLEDGMENT,  III.  a. 


13 


thereto,  together  with  a  tender  of  the  cash 
balance,  cannot  avoid  the  effect  of  delay  in 
repudiating  the  account  by  placing  it  in  the 
hands  of  an  attorney  for  adjustment,  if  the 
latter  docs  not  proceed  in  due  time.  Ripley 
V.  Sage  I^nd  &  Improv.  Co.  23:  787,  119  N. 
W.  108,  138  Wis.  304.  (Annotated) 

10.  That  an  account  has  been  stated,  and 
the  debtor  has  promised  to  pay  it,  does  not 
deprive  him  of  the  defense  in  an  action  at 
law  upon  the  account,  that  it  is  based  on 
a  wagering  transaction.  Murphey  v. 
Springs  &  Co.  45:  539,  200  Fed.  372,  118 
C.  C,  A.  524.  (Annotated) 

11.  Breach  of  a  contract  may  be  set  up 
in  defense  of  an  action  upon  an  account 
stated  for  monev  earned  under  it.  Gutshall 
V.  Cooper,  6:  820,  86  Pac.  125,  37  Colo. 
212.  (Annotated) 


♦  «» 


ACCOUNTS   STATED. 

See  Accounts. 

#-•-• 


ACCRETIONS. 

Effect  of  adverse  possession  of  shore  land 
to  vest  title  to,  see  Adverse  Posses- 
sion, 75. 

Right  to  compensation  on  extending  street 
across,  sec  Eminent  Domain,  245. 

Partition  of,  see  Partition,  3. 

In  general,  see  Waters,  112,  113,  116,  152- 
159,    180. 


ACCUSED. 


Cross-examination  of,  see  Witnesses,  111- 
121. 


ACID. 

Keeping  of,   on   premises  as   nuisance,    see 
Nuisances,  10, 


ACKNOW^LEDGMENT. 

/.  Who  may  malce  or  talce,  1—3. 
II.  Nature   of  act  of  taking. 
III.  Sufficiency;    necessity;    effect,     4— 
13. 
a.  In  general,   4—10. 
6.  By  married  tvoman,  11—13. 
IV.  Correcting  or  curing  defects,   14— 
16. 

Of  illegitimate  child,  see  Descent  and 
Distribution,  15;  Parent  and  Child, 
II. 

Evidence  in  prosecution  for  false  certifi- 
cation to  acknowledgment,  see  Evi- 
dence,  1905. 

Digest  1-52  E.R.A.(N.S.) 


I  Forgery  of  certificate  of,  by  notary,  see 
Forgery,   11. 

Liability  of  notary  taking  acknowledgment 
to  fraudulent  instrument,  see  Notary, 
1. 

Of  injunction  bond  by  sureties,  see  In- 
junction, 430. 

To  interrupt  statute  of  limitations,  see 
Limitation  of  Actions,   339-353. 

I.  Who  may  malce  or  taJce. 

(See  also  same  heeding  in  Digest  L.R.A. 
1-10.) 

Priority  of  attachment  over  instrument 
acknowledged  before  person  not  en- 
titled to  take  acknowledgment,  see 
Attachment,  21,  22. 

1.  It  is  improper  for  a  lawyer  to  act 
in  the  double  capacity  of  a  notary  to  take 
acknowledgments  to  affidavits,  to  be  used 
in  the  trial  of  a  case  in  which  he  is  the 
attorney  -for  one  of  the  parties.  Crawford 
V.  Ferguson,  45:  519,  115  Pac.  278,  5  Okla. 
Crim.  Rep.  377, 

2.  A  stockholder  of  a  corporation 
bears  such  financial  relation  to  it  that  he 
is  disqualified,  on  account  of  interest,  from 
attesting  as  a  notary  a  bill  of  sale  to  which 
the  corporation  is  a  party.  Southern  Iron 
&  E.  Co.  V.  Voyles,  41 :  375,  75  S,  E.  248, 
138  Ga.  258.       .  (Annotated) 

3.  A  deed  of  trust  executed  by  a  cor- 
poration is  sufficiently  acknowledged  to  en- 
title it  to  registration,  although  it  was  ac- 
knowledged before  a  notary  public  who  was 
at  the  time  a  director  and  the  treasurer  of 
the  corporation  and  who  was  also  indebted 
for  unpaid  subscriptions  to  its  stock,  where 
these  faets  were  known  to  the  grantor,  and 
where  there  is  nothing  on  the  face  of  the 
deed  or  the  acknowledgment  to  indicate  such 
relation.  Ardmore  Nat.  Bank  v.  Briggs 
Machinery  &  S.  Co.  23:  1074,  94  Pac.  533, 
20  Okla.  427.  (Annotated) 

II.  Nature  of  act  of  talcing. 

(See  same  heading  in  Digest  L.RA.  1-70.) 

III.  Sufficiency;  necessity;  effect. 

a.  In   general. 

(See   also   same   heading   in  Digest   L.R.A. 

1-70.) 

Deed  defectively  acknowledged  as  color  of 
title,  see  Adverse  Possession,  91. 

Upholding  defectively  acknowledged  deed 
as  parol  dedication,  see  Dedication,  8. 

By  grantor  signing  by  mark,  ^e  De;':ds,  5. 

Impeachment  of,  by  testimony  of  parties  to 
certificate,  see  Evidence,  912. 

Weight  and  sufficiency  of  evidence  to  im- 
peach, see  Evidence,  2254,  2255. 

Effect  of  absence  of  acknowledgment  of 
mortgage  on  validity  of  assignment, 
see  Evidence,  2103. 


14 


ACKNOWLEDGMENT,  III.  b,  IV. 


Effect  of  invalid  acknowledgment  of  assign- 
ment of  mortgage  on  validity  of  fore- 
closure, see  Mortgage,   110. 

To  entitle  deed  to  record,  see  Records  and 
Rkcording  Laws,  III.  a. 

As  condition  of  right  to  specific  perform- 
ance, see  Spexiific  Performance,  72. 

Of  tax  deed,  see  Taxes,  229. 

4.  An  unacknowledged  assignment  of  a 
mortgage  is  valid  between  the  parties;  the 
acknowledgment  thereof  being  essential 
only  to  entitle  it  to  record.  Wellendorf  v. 
Wellendorf,  43:  1144,  139  N.  W.  812,  120 
Minn.  435. 

5.  Failure  of  a  notary  public  to  file  his 
autograph  signature  in  the  office  of  the 
county  register,  as  required  by  statute,  will 
not  invalidate  the  acknowledgment  of  sig- 
natures taken  by  him.  Re  Townsend,  22: 
194,  88  N.  E.  41,  195  N.  Y.  214. 

6.  An  acknowledgment  which  recites 
that  the  principal  personally  appeared  be- 
fore a  notary  and  acknowledged  the  exe- 
cution of  a  deed  to  be  his  voluntary  act  is 
invalid  if  his  attorney  in  fact  alone  ap- 
peared before  the  notary,  although  the  at- 
torney had  properly  signed  the  name  of  the 
principal  alone  to  the  deed,  under  a  power 
of  attorney.  Tiger  v.  Button  Land  Co. 
41:805,  135  N.  W.  368,  136  N.  W.  46,  91 
Neb.  63,  433. 

7.  A  certificate  of  acknowledgment  to 
a  deed  stating  that  two  persons  whose  names 
are  subscribed  to  the  instrument  appeared 
and  acknowledged  "that  he  executed  the 
same"  is  not  so  defective  as  to  prevent  the 
recording  of  the  instrument,  since  the  word 
"each"  will  be  supplied  by  construction. 
Hughes  V.  Wright,  11:  643,  101  S.  W.  789, 
100  Tex.  511.  (Annotated) 

8.  Separate  certificates  of  acknowledg- 
ment by  husband  and  wife  immediately  fol- 
lowing one  another,  both  dated  the  same 
day,  the  wife's  being  in  full  compliance  with 
the  statute  and  showing  the  official  character 
of  the  officers  making  it;  the  husband's 
though  purporting  to  be  made  by  persons 
of  the  exact  names  of  those  making  the 
other  certificate,  yet  deficient  in  not  de- 
scribing them  as  officers  authorized  in  the 
premises, — may  be  read  together  as  one,  or 
the  certificate  of  the  wife's  acknowledg- 
ment may  be  resorted  to  for  aid  in  supply- 
ing the  omission  of  official  character  in  the 
other.  Blake  v.  Hollandsworth,  43:  714,  76 
S.  E.  814,  71  W.  Va.  387. 
Reacknoivledsinent. 

Necessity  of  reacknowledgment  of  mortgage 
after  filing  of  blanks,  see  Mortgage, 
19. 

9.  A  deed  complete  and  fully  executed, 
save  that  a  blank  space  for  the  name  of 
the  grantee  is  not  filled  out,  and  delivered 
to  the  grantee  in  this  condition,  is  a 
nullity  until  the  name  of  the  grantee  is 
inserted;  but  if  the  grantee,  under  implied 
authority  from  the  grantor,  inserts  his  own 
name  in  the  blank  space,  the  deed  becomes 
operative  as  a  conveyance,  without  being 
re-executed  or  reacknowledged.  Board  of 
Digest   1-52  I^R.A.(N.S.) 


Education   v.   Hughes,   41:  637,    136   N.   W. 
1095,    118    Minn.    404. 

10.  An  acknowledged  deed  for  land 
which,  with  the  consent  of  the  grantors, 
has  been  altered  after  delivery,  so  as  to 
make  it  describe  a  larger  boundary,  to  be 
effective  as  a  deed  of  the  larger  tract  must 
be  reacknowledged.  Waldron  v.  Waller, 
32:  284,  64  S.  E.  964,  65  W.  Va.  605. 

b.  By  married  woman. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

See  also  infra,  15,  16;  Dower,  17. 

11.  The  privy  examination  of  a  married 
woman  necessary  to  validate  her  convey- 
ance of  real  estate  under  a  statute  pre- 
scribing its  form  cannot  be  taken  by  tele- 
phone. Wester  v.  Hurt,  30:  358,  130  S. 
W.  842,  123  Tenn.  508.  (Annotated) 

12.  If,  after  a  wife  has  been  privily  ex- 
amined as  to  her  signature  to  a  deed,  which 
has  not  been  signed  by  her  husband,  and 
before  the  certificate  of  examination  has 
been  indorsed  on  the  instrument,  she  obtains 
possession  of  it  and  erases  her  signature, 
the  authority  to  attach  the  certificate  is 
terminated,  and  the  deed  will  be  void  if  the 
husband  subsequently  affixes  her  signature 
and  his  own  to  the  instrument,  and  causes 
the  certificate  of  acknowledgment  to  be  at- 
tached thereto.  Eldridge  v.  Hunter,  40:628, 
143  S.  W.  892,  125  Tenn.  309. 

13.  A  stranger  cannot,  under  a  statute 
providing  that  any  certificate  showing  that 
the  requisites  of  the  law  with  respect  to 
a  conveyance  by  a  married  woman  have 
been  complied  with  shall  be  as  valid  as 
the  form  prescribed,  attack  a  conveyance 
by  a  woman  who  lived  near  the  land  with- 
out objection  for  more  than  fifty  years, 
because  the  certificate  omitted  the  pre- 
scribed clause  that  she  wislied  not  to  re- 
tract, where  it  stated  that,  being  examined 
apart  from  her  husband  and  the  deed  being 
explained  to  her,  she  says  that  she  signed 
the  deed  of  her  own  free  will  and  accord 
without  fear  or  restraint  on  the  part  of  her 
husband.  Spivy  v.  March,  45:  1109,  151  S. 
W.   1037,   105  Tex.  473.  (Annotated) 

IV.  Correcting  or  curing  defects, 

(See   also   same   heading   vn  Digest   L.R.A. 

1-10.) 

Constitutionality  of  act  curing  defective 
acknowledgment,  see  Constitutional 
Law,  48-48b,  54,  388,  389. 

14.  A  constitutional  prohibition  of  the 
enactment  of  retroactive  laws  is  not  vio- 
lated by  a  statute  curing  defectively  ac- 
knowledged deeds  which  have  been  on  rec- 
ord for  more  than  ten  years,  so  far  as  it 
affects  the  rights  of  one  who,  fifty  years 
after  the  execution  of  the  deed,  purchases 
the  property  from  the  grantor's  heirs,  witli 
full    knowledge    of    the    facts.      Downs    v. 


ACQUIESCENCE— ACTION  OR  SUIT. 


15 


Blount,  31:  1076,  170  Fed.  15,  95  C.  C.  A. 
289. 

15.  The  mere  fact  that  the  deed  of  a 
married  woman  is  not  aclcnowledged  and 
certified  as  required  by  statute  does  not 
render  it  void  to  such  a  degree  that  it  can- 
not be  cured  by  the  legislature.  Downs  v. 
Blount,  31:  1076,  170  Fed.  15,  95  C.  C.  A, 
289. 

16.  An  officer  cannot,  at  an  indefinite 
time  after  witnessing  the  signature  to  an 
instrument,  and  its  delivery  to  the  grantee, 
make  and  attach  thereto  a  certificate  of  the 
acknowledgment  of  its  execution  on  privy 
examination  by  a  married  woman  who  was 
a  party  thereto,  without  having  again  had 
her  before  him  for  that  purpose.  Alford  v. 
Doe  ex  dem.  First  Nat.  Bank,  22:  216,  47 
So.  230,  156  Ala.  438.  (Annotated) 


ACQUIESCENCE. 


Estoppel  by,  see  Estoppel,  III.  g. 
Presumption  of,  see  Evidence,  II.  e,  4, 


ACQUITTAL. 


As  bar  to  prosecution,  see  Criminal  Law, 
11.  g. 


ACROBATIC  PERFORMANCE. 

In  highway,  see  Highways,  217. 

«-*-#^ 

ACTION  ON  THE  CASE. 

See  Case,  291. 


.♦»» 


ACTION  OR  SUIT. 

/.  Nature  and  right,    1—54:. 

a.  In    general;    what    actionable, 

1-6. 
6.  Premature;     conditions     pre- 
cedent,  7—31. 

1.  In  general,   7—24. 

2.  Restoration  of  benefits  re- 

ceived, 25—27. 

3.  Demand;  notice,  28—31. 
c.  Defenses,  32—54. 

II.  Union,    choice,    or   form   of   reme- 
dies,  55—131. 

a.  Kind;    name,    55—85. 

b.  Consolidation,  86,  87. 

c.  Splitting ;  sticcessive  suits,  88— 

106. 

d.  Joinder,    107—123. 

e.  Multifariousness,    124—130. 

f.  Identity,   131. 
Disest  1-52  I..R.A.(N.S.) 


III.  Commencement    and    termination, 
132. 

Abatement  of,  see  Abatement  and  Re- 
vival. 

Appearance  in,  see  Appearance. 

Compromise  of,  see  Compromise  and  Set- 
tlement. 

Continuance  of,  see  Continuance  and 
Adjournment. 

Dismissal  and  discontinuance,  see  Dismis- 
sal OR  Discontinuance. 

What  constitutes  due  process  in,  see  Con- 
stitutional Law,  II.  b,  7. 

Costs  and  fees,  see  Costs  and  Fees. 

Parties  to  action,  see  Parties. 

Removal  of,  see  Removal  of  Causes. 

Venue  of  action,  see  Venue, 

Transfers  between  law  and  equity,  see 
Equity,  II. 

Comity  in  general,  see  Conflict  of  Laws. 

Limitation  of  time  for  bringing,  see  Limi- 
tation OF  Actions. 

Contractual  limitation  of  time  for  com- 
mencing  suit,   see  Carriers,    955;    In- 

SUEANCE,  VI.  h,   3. 

Effect  of,  on  running  of  limitations,  see 
Limitations  of  Actions,  IV.  b. 

Effect  of  starting,  to  revoke  submission  to 
arbitration,  see  Arbitration,  4. 

Cause  of,  as  assets  in  bankruptcy,  see 
Bankruptcy,  44-52. 

Right  of,  as  assets  justifying  appointment 
of  administrator,  see  Executors  and 
Administrators,  2,  3,  5. 

Duty  of  stranger  to,  to  defend,  see  Banks, 
232. 

Consideration  for  promise  to  refrain  from 
suit,  see  Contracts,  59. 

Forbearance  to  sue  as  consideration  for 
promise,  see  Contracts,  60,  121. 

Postponing  suit  on  promise  of  debtor  to 
pay,  as  raising  new  obligation  for  bene- 
fit of  estate  of  payee,  see  Contracts, 
60. 

Threat  to  bring  as  duress,  see  Duress,  4,  5. 

Jurisdiction  of  equity  to  reinstate,  see 
Equity,  26,  27. 

In  true  name  by  one  in  whose  favor  a  draft 
is  drawn  in  a  fictitious  name,  see 
Name,  2. 

Use  of  full  name  in'  bringing,  see  Name, 
2,   3. 

Notice  to  agent  of  pendency  of,  as  notice 
to  principal,  see  Notice,  30. 

Actions  for  injuries  from  defects  in  bridges, 
highways,  and  streets,  see  Bridges,  II.; 
Highways,  IV. 

Remedy  of  abutting  owner  for  improper  use 
or  obstruction  of  highway,  see  High- 
ways, II. 

Civil  damage  suit,  see  Intoxicating  Li- 
quors, IV.  b. 

To  set  aside  judgment,  see  Judgment,  VII. 

Between    partners,    see    Partnership,    VII. 

Rights  and  remedies  of  surety,  see  Princi- 
pal AND  Surety,  II. 

Causes  of  action  relating  to  ships  and  ship- 
ping generally,  see  Shipping. 

Summary  proceedings,  see  Summary  Fro- 
ceedings. 

Suits  as  to  taxes,  see  Taxes,  III.  e. 


16 


ACTION  OR  SUIT,  I.  a,  b,  1. 


Privilege  from,  see  Writ  and  Process,  II. 
d. 

Jurisdiction  of  courts,  see  Admiralty;  Ap- 
peal AND  Error;  Cloud  on  Title; 
Courts;  Creditors'  Bill;  Equity; 
Injunction  ;  Mandamus  ;  Prohibi- 
tion; Quo  Warranto;  Specific  Per- 
formance. 

On  various  instruments  and  obligations,  see 
Bills  and  Notes,  VI.;  Bonds;  Con- 
tracts; Insurance,  VI.  h;' Judgment, 
VI.;  Mortgage,  VI.;  Patents;  Sale; 
Shipping. 

Particular  causes  of  action  for  wrongs,  see 
Abuse  of  Process;  Assault  and  Bat- 
tery; Breach  of  Promise;  Case; 
Conspiracy;  Death;  False  Impris- 
onment; Fraud  and  Deceit;  Fraudu- 
lent Conveyances;  Libel  and  Slan- 
der; Malicious  Prosecution;  Negli- 
gence; Nuisances;  Patents;  Seduc- 
tion. 

Various  matters  of  procedure,  see  Attach- 
ment; Continuance  and  Adjourn- 
ment; Depositions;  Evidence;  Exe- 
cution; Judgment;  Jury;  Levy  and 
Seizure;  Trial;  Witnesses;  Writ 
AND  Process. 

Matters  peculiar  to  particular  kinds  of  ac- 
tions and  proceedings,  see  Admiralty; 
Assumpsit  ;  Attachment  ;  Case  ; 
Covenants  and  Conditions;  Credit- 
ors' Bill;  Discovery  and  Inspec- 
tion; Ejectment;  Eminent  Domain; 
Equity;  Garnishment;  Injunction; 
Mandamus;  Partition;  Prohibition; 
Quo  Warranto;  Replevin;  Specific 
Performance;    Trespass;   Trover, 

I.  Nature  and  right. 

a.  In  general;  what  actionable. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  of  action  by  or  against  particular 
classes  of  persons,  see  Aliens,  5;  As- 
signment FOR  Creditors;  Associa- 
tions, 2;  Bankruptcy;  Carriers; 
Charities  ;  Corporations  ;  Counties  ; 
Executors  and  Administrators,  III.; 
Guardian  and  Ward;  Husband  and 
Wife,  III.;  Incompetent  Persons, 
v.;  Infants,  III.;  Insolvency;  In- 
surance; Labor  Organizations,  7- 
12;  Landlord  and  Tenant;  Master 
and  Servant;  Municipal  Corpora- 
tions; Nonresidents;  Officers;  Par- 
ent AND  Child;  Partnership;  Prin- 
cipal AND  Agent;  Principal  and 
Surety;  Railroads;  Rex^eivers,  IV.; 
Sale;  Schools;  Sheriff;  State; 
Street  Railways;  Telegraphs;  Tele- 
phone:s;  Trusts;  Vendor  and  Pur- 
chaser; Waters,  III. 

By  stockholder  of  corporation,  see  Corpo- 
rations, V.  e,  2. 

By  or  against  foreiorn  corporations,  see  Cor- 
porations, VII.  c. 

For  mental  suflfering,  see  Damages,  III.  o. 

Digest  1-52  L.R.A.(N.S.) 


Assignment  of  right  of  action,  see  Assign- 
ment, 1-3;   Contracts,  449. 

Due  process  as  to  right  of  action,  see  Con- 
stitutional Law,  II.  b,  7,  b. 

Nature  of  prosecution  for  violation  of  city 
ordinance,  see  Evidence,  2053. 

Lack  of  controversy  as  ground  for  dismiss- 
ing appeal,  see  Appeal  and  Error, 
392-394. 

1.  The  owner  of  a  threshing  machine 
who  fails  to  file  the  bond  required  by  a 
statute  making  it  unlawful  to  use  such  ma- 
chine without  executing  and  filing  a  bond 
cannot  maintain  an  action  to  recover  com- 
pensation for  threshing  grain,  even  for  one 
having  knowledge  of  such  failure.  Johnson 
v.  Berry,  i:  1159,  104  N.  W.  1114,  20  S.  D. 
133.  (Annotated) 

2.  In  an  action  at  law,  tlie  right  to 
judgment  depends  upon  the  facts  as  they 
existed  at  the  time  of  the  commencement  of 
the  action,  and  not  at  the  time  of  the  trial. 
Fults  V.  Munro,  37:  600,  95  N.  E.  23,  202  N. 
Y.  34. 

3.  The  right  of  an  employer  to  hold  one 
in  his  employ  liable  for  negligently  causing 
the  death  of  an  employee,  for  wliich  the  em- 
ployer is  compelled  to  make  indemnity,  is 
not  founded  on  the  death,  but  upon  the 
loss  caused  by  the  recovery  against  the  em- 
ployer, and  an  action  therefor  is  tlierefore 
not  defeated  by  the  fact  that  the  employer 
is  not  within  the  statutory  provision  as  to 
who  may  maintain  an  action  for  wrongful 
death.  Travelers'  Ins.  Co.  v.  Great  Lakes 
Engineering  Works  Co.  36:  60,  184  Fed.  426, 
107  C.  C.  A.  20.  (Annotated) 

4.  An  attorney  cannot  maintain  an  in- 
dependent suit  to  prevent  the  fraudulent 
dismissal  of  an  action  in  which  he  Las  been 
retained  to  deprive  him  of  his  fees,  but 
should  proceed  with  the  former  suit  not- 
withstanding the  dismissal.  Jackson  v. 
Stearns,  5:  390,  84  Pac.  798,  48   Or.  25. 

(Annotated) 

5.  No  action  can  be  maintained  which 
arises  out  of  the  moral  turpitude  of  the 
plaintiflF,  or  out  of  his  violation  of  a  general 
law  enacted  to  effectuate  the  public  policy 
of  a  state.  Levy  v.  Kansas  City,  22:  862, 
168  Fed.  524,  93  C.  C.  A.  523. 

Novelty. 

6.  The  absence  of  reported  judgments 
and  decisions  sustaining  an  alleged  liability 
under  a  given  state  of  facts  raises  a  strong 
presumption  that  no  such  liability  exists. 
Western  U.  Teleg.  Co.  v.  Schriver,  4:  678, 
141  Fed.  538,  72  C.  C.  A.  596. 

6.  Premature;   conditions  precedent. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Raising  objection  of  prematurity  of  action 
for  first  time  on  appeal,  see  Appeal 
AND  Error,  728,  729. 


ACTION    OR    SUIT,    I.    b,    1. 


17 


Prematurity  of  action  against  administra- 
tors, see  Executors  and  Administra- 
tors, 94, 

When  action  accrues  so  as  to  start  running 
of  limitations,  see  Limitation  of  Ac- 
tions, II. 

Prematurity  of  injunction  suit  to  restrain 
execution  of  public  contract,  see  Par- 
ties,  133. 

To  right  of  action  against  maker  of  checks, 
see  Checks,  18. 

To  rescission  of  contract,  see  Contracts,  V. 
c,   2. 

To  actions  by  stockholders,  see  Corpora- 
tions, 279-284. 

To  enforce  stockholder's  liability,  see  Cor- 
porations, 365-369. 

To  suit  against  county,  see  Counties,  19. 

To  maintenance  of  action  to  compel  convey- 
ance by  executor,  see  Executors  and 
Administrators,  95. 

To  maintenance  of  action  against  munici- 
pality for  injury  on  highway,  see 
Highways,  IV,  d,  2. 

To  suit  on  insurance  policy,  see  Insurance, 
VI.  a. 

In  action  for  damages  for  breach  of  con- 
tract to  issue  insurance  policy,  see  In- 
surance,   138. 

To  action  for  malicious  prosecution,  see 
Malicious  Prosecution,  III. 

In  suit  against  city,  see  Municipal  Cor- 
porations, II.  g,  5. 

To  action  on  contractor's  bond,  see  Princi- 
pal AND  Surety,  7-11. 

To  action  for  replevin,  see  Replevin,  3,  9, 

7.  A  proceeding  in  equity  to  set  aside 
tlie  decision  of  an  engineer,  which,  by  the 
contract,  is  to  be  final  and  conclusive  be- 
tween the  parties,  is  not  a  condition  prece- 
dent to  an  action  at  law  to  recover  the 
money  due  under  the  contract,  where  the 
work  has  been  satisfactorily  completed  by 
the  one  party  and  accepted  by  the  other. 
Edwards  v.  Hartshorn,  i:  1050,  82  Pac.  520, 
72  Kan.  19. 

8.  An  action  lies  for  instalments  accru- 
ing under  the  terms  of  an  entire  building 
contract  as  they  become  due;  and  the  con- 
tractor need  not  wait  until  the  building  is 
completed  before  bringing  the  suit.  Milske 
V.  Steiner  Mantel  Co.  5:  1105,  63  Atl.  471, 
103  Md.  235. 

9.  A  suit  by  materialmen  on  the  bond 
of  a  building  contractor  need  not  be  post- 
poned until  the  owner  of  the  building  has 
suffered  pecuniary  injury  by  reason  of  the 
contractor's  default,  where  it  is  conditioned 
that  the  contractor  shall  pay  for  all  ma- 
terials supplied  for  the  building.  Orinoco 
Supply  Co.  V.  Illinois  Suretv  Co.  42:  707, 
76  S.  E.  273,  160  N.  C.  428. 

10.  A  right  of  action  for  the  refusal  of 
a  trust  company  to  fulfil  its  agreement  to 
loan  money  arises  upon  its  repudiation  of 
the  contract,  although  the  money  was  to 
have  been  advanced  when  a  certain  build- 
ing, whicli  has  not  been  erected,  was  com- 
pleted. Holt  V.  United  Security  L.  Ins.  & 
Trust  Co.  (N.  J.  Err.  &  App.)  n:  100,  67 
Atl.  118,  74  N.  J.  L.  795. 
Digest   1-52  L.R.A.(N.S.) 


11.  No  action  can  be  brought  for  the 
price  of  goods  sold  and  delivered  until  the 
expiration  of  the  stipulated  period  of  credit, 
notwithstanding  the  purchaser  refuses  to 
accept  the  goods  and  repudiates  the  con- 
tract. Tatum  V.  Ackerman,  3:  go8,  83  Pac. 
151,  148  Cal.  357.  (Annotated) 

12.  Suit  to  enforce  specific  performance 
of  a  contract  by  a  devisee  to  share  real  es- 
tate with  an  heir  is  not  prematurely 
brought,  although  there  has  been  no  final 
settlement  of  the  testator's  estate,  where 
all  the  debts  of  the  estate  have  been  paid, 
and  the  personal  estate  is  ample  to  pay  the 
bequests  under  the  will  and  all  the  necessary 
expense  of  administration.  Grochowski  v. 
Grochowski,  13:  484,  109  N.  W.  742,  77  Neb. 
500. 

13.  In  case  of  a  trust  for  the  heirs  of 
a  certain  person  who  shall  be  living  at  the 
death  of  another,  no  action  can  be  main- 
tained prior  to  the  latter's  death,  to  estab- 
lish the  trust  against  an  assignee  of  the 
trustee,  or  to  impound  the  rents  and  profits. 
Allen  V.  White,  7:  ggg,  85  Pac.  695,  36  Colo. 
39.  (Annotated) 

14.  An  objection  that  an  action  by  a 
devisee  under  a  will  to  set  aside  a  deed  of 
the  testator,  which  was  alleged  to  hav«,  been 
procured  while  he  was  of  unsound  mind, 
was  premature,  because  brought  before  the 
will  was  probated,  becomes  immaterial  upon 
the  trial  upon  an  amended  and  supplement- 
al petition  filed  after  the  probate  of  the 
will.  Bethany  Hospital  Co.  v.  Philippi,  30: 
ig4,  107  Pac.  530,  82  Kan.  64. 

15.  A  formal  disaffirmance  by  an  in- 
sane person,  or  by  someone  acting  in  his 
behalf,  of  a  void  deed  which  had  been 
executed  by  him  to  one  who  had  knowledge 


of  the  insanity,  and  who  gave  no  sub- 
stantial consideration,  is  not  a  condition 
j  precedent  to  the  bringing  of  an  action  by 
a  devisee  under  the  prior  valid  will  of  the 
grantor,  to  set  aside  such  deed  as  a  cloud 
on  title,  which  was  alleged  to  have  passed 
under  the  will,  although  there  was  ample 
time  for  such  action  between  the  execution 
of  the  deed  and  the  grantor's  death. 
Bethany  Hospital  Co.  v.  Philippi,  30:  ig4, 
107  Pac.  530,  82  Kan.  64. 

16.  An  action  for  procuring  by  fraud  a 
deed  to  timber  which  has  been  conveyed  to 
a  stranger  may  be  brour'it  before  any  entry 
has  been  made  to  remove  the  timber  from 
the  land.  Griffin  v.  Roanoke  R.  &  Lum- 
ber Co.  6:  463,  53  S.  E.  307,  140  N.  C.  514. 

17.  The  cause  of  action  for  negligently 
constructing  and  maintaining  the  wall  of  a 
reservoir  so  that  it  gives  way  and  injures 
adjoining  property  arises  when  the  injiiry 
is  done.  Mast  v.  Sapp,  5:  37g,  53  S.  E.  350, 
140  N.  C.  533.  (Annotated) 

18.  A  suit  to  enjoin  an  express  company 
from  charging  rates  in  excess  of  those  per- 
mitted by  Neb.  Laws,  1907,  chap.  91,  which 
were  limited  to  75  per  cent  of  the  rates  in 
force  on  the  first  day  of  that  year,  is  not 
premature  when  brought  on  the  day  tlie 
statute  took  effect,  although  thirty  days 
2 


18 


ACTION  OR  SUIT,  I.  b,  2,  3. 


thereafter  are  allowed  by  §  2  for  filing  a 
schedule  of  the  rates  which  were  in  force 
on  the  1st  of  the  preceding  January.  State 
V.  Pacific  Exp.  Co.  i8:  664,  115  N.  W.  CIS), 
80  Neb.  823. 

19.  A  covenant  of  title  contained  in  a 
deed,  if  untrue,  is  broken  when  made;  and 
the  grantee's  right  of  action  thereon  ac- 
crues at  once.  Webb  v.  Wheeler,  17:  11 78, 
114  N.  W.  636,  80  Neb.  438.       (Annotated) 

20.  One  who,  because  of  the  unlawful 
suspension  of  his  child  from  a  public  school, 
becomes  liable  for  board  and  tuition  in  an- 
other district,  cannot  maintain  an  action 
for  damages  against  those  responsible  for 
the  suspension,  as  soon  as  he  has  arranged 
for  accommodation  in  such  district  and  be 
fore  he  has  paid  his  money.  Douglas  v. 
Campbell,  20:  205,  116  S.  W.  211,  89  Ark. 
254. 

21.  The  right  of  action  against  a  title 
abstracter  under  a  statute  providing  that 
persons  engaged  in  the  making  of  abstracts 
shall  give  bond  conditioned  for  the  pay- 
ment of  all  damages  that  may  accrue  to 
any  person  by  reason  of  any  incomplete- 
ness, imperfections,  or  error  in  any  ab 
stract  furnished  by  them,  accrues  at  the 
time  the  abstract  is  delivered,  and  not 
when  the  error  is  discovered  and  the  dam- 
ages resulting  tlierefrom  have  been  paid 
Walker  v.  Bowman,  30:  642,  111  Pac.  319, 
27  Okla.  172. 

22.  Dissolution  of  an  injunction  on  mo- 
tion does  not  mature  a  right  of  action  on 
the  injunction  bond  if  the  suit  is  still  pend- 
ing, although  the  statute  provides  that,  in 
case  of  dissolution  of  an  injunction,  the 
complaint  shall  be  dismissed  of  course  un- 
less sufficient  cause  be  shown  against  its  dis- 
missal at  the  next  succeeding  term  of  court. 
Vicksburg  Waterworks  Co.  v.  Vicksburg, 
33:  844,  54  So.  852,  99  Miss.  132. 

23.  One  is  not  bound  to  make  a  tender 
of  any  amount  as  a  condition  of  instituting 
a  suit  to  set  aside  an  assessment  for  a  pub- 
lic improvement,  which  is  invalid  in  toto. 
Denver  v.  State  Invest.  Co.  33:  395,  112  Pac. 
789,N  49   Colo.   244. 

24.  Tender  of  a  portion  of  an  assessment 
for  a  public  improvement  is  not  a  prerequi- 
site to  the  institution  of  a  suit  to  set  it 
aside  for  illegality,  if  no  part  of  the  assess- 
ment is  due  and  payable  when  the  suit  is 
instituted.  Denver  v.  State  Invest.  Co.  33: 
395,  112  Pac.  789,  49  Colo.  244. 

2.  Restoration  of  henefits  received. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Necessity  of  returning  money  paid  for  re- 
lease before  bringing  action  for  injury, 
.see  Release,  2-4. 

Necessity  of  refunding  purchase  price  on 
discovering  shortage  in  grain  pur- 
chased, see  Sale,  137. 

25.  Tender  of  the  amount  received  is 
not  a  condition  precedent  to  the  recovery 
by  a  stockholder  of  a  corporation,  from  a 
Bigest  1-52  I..R.A.(N.S.) 


director  who  fraudulently  procures  the 
stock  for  less  than  it  is  worth,  of  the  bal- 
ance of  its  true  value.  Black  v.  Simpson, 
46:  137,  77  S.  E.  1023,  94  S.  C.  312. 

26.  Stockholders  of  a  corporation  are 
not,  in  order  to  maintain  an  action  for  an 
accounting  against  the  corporation  and 
strangers  to  whom  corporate  stock  is  al- 
leged to  have  been  fraudulently  issued  in 
exchange  for  securities  belonging  to  such 
persons,  bound  to  ofifer  to  return  the  secu- 
rities so  received.  Continental  Securities 
Co.  V.  Belmont,  51:  112,  99  N.  E.  138,  206 
N.  Y.  7. 

27.  Where  a  defendant,  by  the  use  of 
fraudulent  representations,  induces  a  pro- 
posed entryman  of  government  land  to  be- 
lieve that  the  land  he  desires  has  been  en- 
tered, but  that  the  defendant  will  secure 
a  relinquishment  of  that  entry  if  paid  a 
sum  of  money,  and  the  money  is  paid  in 
good  faith,  upon  the  strength  of  those  repre- 
sentations, the  entryman,  upon  discovering 
the  truth,  may  maintain  a  suit  in  the  na- 
ture of  an  action  for  monej'  had  and  re- 
ceived, and  will  not  be  required  to  abandon 
the  land  as  a  condition  precedent  to  main- 
taining the  action.  Martin  v.  Hutton,  36: 
602,  132  N.  W.  727,  90  Neb.  34. 

8.  Demand;  notice. 

(See  also   same   heading  in   Digest   L.R.A, 
1-10.) 


Demand. 

As  condition  precedent  to  action  by  stock- 
holder, see  Corporations,  280,  281. 

In  mandamus  suit,  see  Mandamus,  100. 

In  suit  against  city,  see  Municipal  Cor- 
porations, II.  g,  5. 

In  replevin  suit,  see  Replevin,  I.  c. 

In  trover,  see  Trover,  I.  c. 

28.  Where  a  surety  on  a  fidelity  bond 
undertakes  to  respond  upon  condition  that 
demand  be  first  made  upon  the  principal, 
such  demand  is  a  part  of  the  contract,  and 
must  be  alleged  and  proved.  Feder  Silber- 
berg  Co.  v.  McNeil,  49:  458,  133  Pac.  975, 
18  N.  M.  44. 

29.  No  demand  is  necessary  before  insti- 
tution of  a  suit  to  recover  money  collected 
by  defendant  for  plaintiff.  Young  v.  Kim- 
ber,  28:  626,  98  Pac.  1132,  44  Colo.  448. 

(Annotated) 

30.  Demand  and  refusal  to  pay  are  not 
necessary  to  perfect  a  cause  of  action 
against  an  attorney  who,  having  made  a 
collection  for  a  client,  fails  to  remit  the 
proceeds  to  the  client  within  a  reasonable 
time  after  receiving  payment,  or  to  notify 
the  latter  of  hia  readiness  to  pay.  Ott  v. 
Hood,  44:  524,  139  N.  W.  762,  152  Wis.  97. 
Notice. 

Notice  of  injuries  by  defective  street,  see 
Highways,  IV.  d,  2. 

To  master  as  condition  to  action  by  in- 
jured servant,  see  Master  and  Serv- 
ant, 186-191;  Notice,  62. 

In  suit  against  city,  see  Municipal  Cob- 
PORATIONS,    II.  g,   5. 


ACTION  OR  SUIT,  1.  c. 


19 


31.  Notice  need  not  be  alleged  to  sustain 
an  action  for  actual  damages  against  the 
publisher  of  a  libel,  where  the  statute  pro- 
vides that,  before  the  action  for  libel  shall 
be  brought,  the  aggrieved  party  shall  serve 
notice  on  the  publisher  specifying  the  false 
statements;  and  if,  on  the  trial,  it  shall  ap- 
pear that  the  publication  was  by  mistake, 
or  was  retracted,  the  recovery  shall  be  of 
actual  damages  only.  Comer  v.  Age-Herald 
Pub.  Co.  13:525,  44  So.  673,  151  Ala.  613. 

(Annotated) 

c.  Defenses. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.J 

In  action  on  account  stated,  see  Accounts, 
11. 

In  admiralty,  see  Admikaltt,  6. 

In  action  for  assault,  see  Assault  and 
Battery,  II.;  Carriers,  139,  140. 

In  disbarment  proceedings,  see  Attorneys, 
26-29. 

In  action  to  hold  collecting  bank  liable  for 
money  paid  on  check,  see  Banks,  154. 

In  action  on  negotiable  paper,  see  Bills 
AND  Notes,  VI.  c. 

In  action  on  bond,  see  Bonds,  III.  b,  8. 

In  action  for  breach  of  promise,  see  Breach 
OF  Promise,  II. 

In  action  against  county  for  injury  by  de- 
fects in  bridge,  see  Bridges,  18,  20- 
23. 

In  action  to  recover  penalty  for  delay  in 
transportation,  see  Carriers,   893. 

In  action  against  drawer  of  check,  see 
Checks,  45. 

Ill  action  to  quiet  title,  see  Cloud  on  Title, 
II. 

In  proceeding  for  contempt,  see  Contempt, 
16. 

In  suit  by  corporation  to  compel  repayment 
by  promoters  of  illegal  profits,  see  Cor- 
porations, 195,  197. 

In  action  by  unauthorized  foreign  corpora- 
tion to  enforce  contract,  see  Corpora- 
tions, 430-442. 

In  action  for  breach  of  covenant,  see  Cove- 
nants and  Conditions,  37. 

In  action  for  causing  death,  see  Death,  IV. 

In  suit  for  divorce,  see  Divorce  and  Seipa- 
ration,  IV. 

In  ejectment,  see  Ejectment,  II.  b. 

In  condemnation  proceedings,  see  Eminent 
Domain,  136-148. 

In  action  on  executor's  bond,  see  Execu- 
tors AND  Administrators,  79. 

In  action  for  false  imprisonment,  see  False 
Imprisonment,  III. 

In  action  for  fraud,  see  Fraud  and  De- 
ceit, 72. 

In  suit  for  abandonment  of  wife,  see  Hus- 
band and  Wife,  208,  209. 

In  action  on  insurance  policy,  see  Insur- 
ance, VI.  e. 

In  action  on  premium  note,  see  Insurance, 
424. 

In  action  for  slander,  see  Libel  and  Slan- 
der, III.  c. 

Digest  1-52  L.R.A.(N.S.) 


In  mandamus  case,  see  Mandamus,  II.  d. 

In  action  for  rent  imder  ^oil  and  gas  lease, 
see  Mines,   70. 

In   foreclosure  suit,  see  Mortgage,  VI.   d. 

In  proceeding  to  abate  nuisance,  see  Nui- 
sances, II.  d. 

In  replevin  suit,  see  Eeplevin,  II.  b. 

In  action  by  vendee  for  shortage  in  qual- 
ity of  goods  delivered,  see  Sale,  137, 
138. 

In  action  for  specific  performance,  see 
Specific  Performance. 

In  action  for  infringement  of  trademarks, 
see  Trademarks,  V. 

In  action  for  trespass,   see  Trespass,  I.  c. 

In  trover,  see  Trover,  44-49. 

To  liability  on  contract,  generally,  see  Con- 
tracts, VI.  b. 

To  liability  of  stockholder,  see  Corpora- 
tions, 348-353,  355,  364. 

To  local  improvement  assessments,  see  Cor- 
porations, 435,  436;  Public  Improve- 
ments, 74,  75. 

To  liability  for  interfering  with  extinguish- 
ment of  fires,  see  Fires,  24. 

To  liability  for  obstruction  of  sidewalk,  see 
Highways,   80. 

To  enforcement  of  bid  at  judicial  sale,  see 
Judicial  Sale,  12-14. 

To  collection  of  taxes,  see  Taxes,  152. 

To  liability  of  township  trustees  for  failure 
to  provide  for  collection  of  tax  to  pay 
contractor,  see  Towns,  13,  14. 

Discharge  in  bankruptcy  as,  see  Bank- 
ruptcy, V. 

Maintenance  as,  see  Champerty  and  Main- 
tenance. 

Illegality  of  contract  as,  see  Contracts, 
III.  g. 

Equitable  estoppel  as,  see  Estoppel,  III. 

Laches  as,  see  Estoppel,  III.  g;  Limita- 
tion of  Actions,  I.  b. 

Materialman's  failure  to  give  notice  of 
claim  to  surety  on  building  contract- 
or's bond  as,   see  Evidence,   543. 

Infancy  as,  see  Infants,  I.  d. 

Fraudulent  use  of  trademark  as,  see  In- 
junction, 401. 

Fact  that  plaintiff  is  member  of  illegal 
combination  as  defense  to  suit,  see  Mo- 
nopoly and  Combinations,  52. 

Contributory  negligence  as,  see  Negli- 
gence, II. 

Legislative  authoritv  as,  see  Nuisances, 
189-203;    Railroads,  25,   126. 

Violation  of  Sunday  law  as,  see  Sunday,  V. 

Usury  as,  sec  Usury,  II. 

Pendency  of  other  action  as  defense  to  ac- 
tion to  vacate  judgment  see  Judgment,  • 
330. 

Effect  of  account  stated  on,  see  Accounts, 
10. 

Review  on  appeal  of  refusal  to  permit 
amendment  to  set  up,  see  Appeal  and 
Error,  598. 

Raising  defense  for  first  time  on  appeal, 
see  Appeal  and  Error,  VII.  j. 

Error  in  entertaining  motion  to  strike  out 
separate  defense,  see  Appeal  and  Er- 
ror, 1085. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  II.  c. 


20 


ACTION  OR  SUIT,  I.  c. 


Negation  of  defense  in  pleading,  see  Plead- 
ing, II.  e. 

Necessity  of  plea'ding  defense,  see  Plead- 
ing, III.  b. 

Sufficiency  of  plea  to  raise  defense,  see 
Pleading,  III.  d. 

Pleading  inconsistent  defenses,  see  Plead- 
ing, 27,  28,  143. 

Striking  out  immaterial  defense,  see  Plead- 
ing, 156. 

Sufficiency  of  affidavit  of  defense,  see 
Pleading,  480,  506. 

Vested  right  to,  see  Constitutional  Law, 
65. 

Due  process  as  to,  see  Constitutional 
Law,  II.  b,  7,  b,   (2.) 

Liability  for  damages  caused  by  unjustified 
defense,  see  Tobts,  9. 

32.  One  in  actual  possession  of  personal 
property,  holding  the  right  to  that  posses- 
sion and  an  interest  in  the  property 
by  subrogation  to  the  rights  of  a  su- 
perior lienor,  may  prove,  in  an  action  at 
law  in  the  Federal  courts  in  defense  of  his 
possession  and  interest,  against  a  claim 
of  an  inferior  lienor,  the  facts  which  estab- 
lish the  subrogation.  Platte  Valley  Cattle 
Co.  V.  Bosserman-Gates  Live  Stock  &  L. 
Co.  45:  1 137,  202  Fed.  692,  121  C.  C.  A.  102. 

33.  The  fact  that  a  ditch  used  in  lower- 
ing a  lake  situated  on  the  land  of  the  de- 
fendant, and  a  dam  located  at  the  junction 
of  the  river  into  which  it  flows  for  the  pur- 
pose of  preventing  a  back  flow  of  water, 
are  situated  upon  lands  owned  by  other 
persons,  is  no  defense  to  an  action  for  the 
negligent  maintenance  of  the  dam,  where 
it  is  shown  that  the  defendant  freely  exer- 
cised the  use,  control,  operation,  and 
management  thereof  in  the  prosecution  of 
his  own  private  business.  Christensen  v. 
Omaha  Ice  &  Cold  Storage  Co.  41:  1221,  138 
N.  W.  141,  92  Neb.  245. 

34.  It  is  no  defense  to  an  action  by  mort- 
gagees against  a  stranger  for  causing  the 
loss  of  their  lien  upon  some  of  the  mort- 
gaged property  that  it  still  covers  an 
amount  sufficient  to  secure  the  payment  of 
the  mortgage  debt.  Bank  of  Havelock  v. 
Western  U.  Teleg.  Co.  4:  181,  141  Fed.  522, 
72  C.  C.  A.  580. 

Who  may  set  up  generally. 

Right  of  defendant  in  attachment  proceed- 
ing to  deny  ownership  of  property  at- 
tached, see  Attachment,  48. 

VVho  may  set  up  defense  of  champerty,  see 
Champerty  and  Maintenance,   5. 

Right  of  party  to  illegal  contract  to  set  up 
illegality  as  defense,  see  Contbacts, 
564. 

Right  to  set  up  ultra  vires  act  of  corpora- 
tion as,  see  Corporations,  IV.  d,  2. 

Who  may  attack  existence  of  corporation, 
see  Eminent  Domain,  137,  139. 

35.  A  purchaser  of  land  may  rely  upon 
the  statute  of  frauds  to  invalidate  a  parol 
contract  for  its  conveyance  made  between 
his  vendor  and  one  claiming  adversely  un- 
der such  parol  contract.  Collins  v.  Lackey, 
40:  883,    123  Pac.   1118,   31   Okla.   776. 

(Annotated) 
Digest  1-52  I..R.A.(N.S.) 


3.5a.  One  seeking  to  set  aside  for  fraud  a 
contract  by  which  he  transferred  corporate 
stock  to  his  attorney,  in  consideration  of 
the  lattcr's  securing  mon^y  to  relieve  the 
business  from  financial  difficulties,  cannot 
set  up  usury  in  a  transaction  by  wliich  the 
attorney  transferred  a  portion  of  the  stock 
to  persons  who  lent  the  money  which  he 
undertook  to  secure.  Winsor  v.  Common- 
wealth Coal  Co.  33:  63,  114  Pac.  908,  63 
Wash.  62. 
Worthlessness  of  judgment. 

36.  Tlie  fact  that  a  prospective  judg- 
ment against  a  defendant  in  an  action  at 
law  will  be  worthless  is  no  defense  to  the 
action.  Fleming  v.  Fairmont  &,  M.  R.  Co. 
49:  i55»  79  S.  E.  826,  72  W.  Va.  835. 
Nuisance. 

37.  One  coasting  in  a  public  street  wLo 
is  injured  by  another's  negligence  is  not 
prevented  from  recovering  for  the  injury 
because  his  own  act  constituted  a  public 
nuisance.  Lynch  v.  Public  Service  R.  Co. 
(K  J.  Err.  &  App.)  42;  865,  83  Atl.  382^ 
82  N.  J.  L.  712.  (Annotated) 
Violation    of   law^    by   plaintiff. 

38.  A  statute  making  the  operation  of 
an  unregistered  motor  vehicle  upon  the 
public  highways  of  the  state  a  criminal  of- 
fense, but  which  does  not  provide  expressly 
or  by  implication  that  no  recovery  shall  be 
had  for  a  negligent  injury  to  sucli  an  un- 
licensed vehicle,  does  not  modify  the  statu- 
tory provisions  relative  to  the  liability  of 
railroad  companies  for  negligent  injur/  to 
others,  so  as  to  prevent  recovery  for  the 
destruction  of  such  an  unlicensed  vehicle. 
Atlantic  Coast  Line  R.  Co.  v.  Wier,  41:  307^ 
58  So.  641,  63  Fla.  69.  (Annotated) 

39.  Tliat  money  had  been  wagered  in 
violation  of  law  upon  a  race  during  which 
one  of  the  participants  was  injured  because 
of  the  presence  of  a  dog  upon  the  race  track 
will  not  relieve  the  owner  of  the  dog  and  the 
parties  conducting  the  race  from  liability 
for  wrongfully  and  negligently  permitting 
the  dog  to  trespass  upon  the  race  track. 
McClain  v.  Lewiston  Interstate  Fair  &  R. 
Asso.  25:  691,  104  Pac.  1015,  17  Idaho,  63. 
Act  or  fault  of  plaintiff. 

40.  That  a  passenger  on  a  street  car  rode 
on  the  platform  when  he  might  have  ridden 
inside  the  car  will  not  preclude  his  hold- 
ing the  company  liable  for  an  injury  in- 
flicted upon  him  while  he  was  attempting 
to  alight  from  the  car  at  his  destination. 
Elliott  V.  Seattle,  R.  &  S.  R.  Co.  89:  608, 
122  Pac.  614,  68  Wash.  129. 

Rigbt  of  other  person  generally. 

41.  The  omission  of  a  telephone  com- 
pany to  obtain  a  franchise  from  a  town- 
ship as  required  by  law  for  the  use  of  its 
liighways  is  no  defense  to  an  action  against 
a  subscriber  for  rental.  Union  Teleph.  Co. 
V.  Ingersoll,  52:  713,  144  N.  W.  500,  178 
Mich.^187  (Annotated) 

42.  A  foreitm  railroad  company  having 
a  traffic  contract  with  a  local  company  can- 
not defeat  an  attachment  of  its  cars  within 
the  state,  because  of  the  rights  of  the  local 
company  under  the  contract,  where  the  lat- 
ter is  not  made  a  party  to  the  proceeding. 


ACTION  OR  SUIT,  I.  c. 


21 


De  Rochemont  v.  New  York  C.  &  H.  R.  R. 
Co.  29:  529,  71  Atl.  868,  75  N.  H.  158. 

43.  Tho  question  of  the  falsity  of  an- 
swers in  tlie  application  for  insurance  can- 
not be  raised  in  a  contest  over  the  right  to 
the  proceeds  which  have  been  paid  by  the 
insurer.  Bendet  v.  Ellis,  18:  114,  111  S.  W. 
795,  120  Tenn.  277. 

44.  The  foreclosure  of  a  chattel  mort- 
gage on  an  undivided  interest  in  personal 
property,  which  is  acquiesced  in  by  the 
mortgagor,  cannot  be  attacked  by  one  hold- 
ing merely  a  cotenancy  interest  therein,  so 
as  to  enable  him  to  set  up  lack  of  title  as  a 
defense  to  a  suit  by  the  mortgagee,  who 
purchased  upon  the  foreclosure  sale,  to  par- 
tition such  personal  property.  Julian  v. 
Yeoman,  27:  618,  106  Pac.  956,  25  Okla. 
448. 

45.  In  the  absence  of  fraud,  a  surety 
who  signs  a  note  as  comaker  cannot  raise 
the  defense  that  his  comaker  did  not  be- 
come bound  on  the  note,  if  the  objection  is 
not  raised  by  the  latter.  Young  v.  Perry, 
52:  1146,  65  So.  817,  —  Ala.  — . 
Unconstitutionality  of  statute  or  ord- 
inance as  to  other  person. 

Eight  to  attack  constitutionality  of  statute 
in  mandamus  proceedings,  see  Manda- 
mus, 128-134. 

Plaintiff's  right  to  attack  unconstitutional- 
ity of  statute,  see  Statutes,  28-34. 

46.  One  not  shown  to  be  a  nonresident 
cannot  raise  the  question  whether  or  not  a 
municipal   ordinance   discriminates   against 

t  citizens  of  other  states.  Schmidt  v.  In- 
dianapolis, 14:  787,  80  N.  E.  632,  168  Ind. 
€31. 

47.  An  insurance  company  has  no  right 
to  raise,  so  as  to  invoke  the  aid  of  a  court 
whose  jurisdiction  depends  upon  the  pres- 
ence of  a  constitutional  question  in  the  case, 
the  question  of  the  constitutionality  of  a 
provision  in  a  statute  depriving  it  of  the 
defense  of  suicide  in  an  action  on  the 
policy,  in  favor  of  a  citizen  of  the  state,  on 
the  theory  that  an  unconstitutional  dis- 
crimination is  thereby  made  against  per- 
sons not  citizens.  Ordelheide  v.  Modern 
Brotherhood  of  A.  32:  965,  325  S.  W.  1105, 
•226  Mo.  203. 

48.  A  comm.on  carrier  cannot  complain, 
in  an  action  brought  to  recover  a  statutory 
penalty  for  failure  promptly  to  transport 
certain  live  stock,  that  the  statute  fixing  the 
penalty  contravenes  the  constitutional  provi- 
sion that  "the  liability  of  a  railroad  corpora- 
tion as  common  carrier  shall  never  be  limit- 
ed," in  that  the  shipper  might  thereby  be 
prevented  from  recovering  his  actual  dam- 
ages, at  least  in  the  absence  of  proof  that 
plaintiff's  recovery  would  be  more  than  his 
actual  damage,  for  which  defendant  would 
be  liable  at  common  law,  since  the  constitu- 
tionality of  statutes  cannot  be  tested  at  the 
suit  of  one  who  is  not  shown  to  have  been 
injured  thereby.  Cram  v.  Chicago,  B,  &  Q. 
R.  Co.  26:  1022,  122  N.  W.  31,  84  Neb.  607, 
123  N.  W.  1045,  85  Neb.  586. 

49.  A  common  carrier  cannot  complain 
that  a  statute  prescribing  a  minimum  rate 
Digest  1—52  L.R.A.(N.S.) 


of  speed  at  which  live  stock  may  be  trans- 
ported between  intrastate  points,  and  pro- 
viding a  penalty  for  violation  thereof,  does 
not  contain  any  exemptions,  or  state  what, 
if  any,  defenses  may  or  may  not  be  avail- 
able in  an  action  brought  thereon,  where  it 
has  not  presented  and  maintained,  or  offered 
to  maintain,  a  legitimate  defense,  and  been 
denied  that  right.  Cram  v.  Chicago,  B.  & 
Q.  R.  Co.  26:  1022,  122  N.  W.  31,  84  Neb. 
607,  123  N.  W.  1045,  85  Neb.  586. 

50.  Children  of  a  decedent,  who,  because 
of  their  relationship,  are  assessed  at  the 
lowest  rate  fixed  by  N.  Y.  Laws  1896,  chap. 
908,  imposing  a  tax  when  property  is  trans- 
ferred by  deed  intended  to  take  effect  at 
the  death  of  the  grantor,  cannot  urge  that 
such  statute  operates  to  deny  the  equal  pro- 
tection of  the  laws,  because  transfers  to 
collaterals  and  strangers  in  blood  are  taxed 
a  higher  rate.  Keeney  v.  Comptroller, 
38:  1 139,  32  Sup.  Ct.  Rep.  105,  222  U.  S. 
525,  56  L.  ed.  299. 

51.  A  savings  bank,  so  far,  at  least,  as 
its  rights  are  involved  in  those  of  its  depos- 
itors, may  raise  the  objection  that  property 
is  taken  without  due  process  of  law  by 
Mass.  Laws  1907,  chap.  340,  providing  that 
deposits  which  have  remained  inactive  and 
unclaimed  for  thirty  years,  where  the  claim- 
ant is  unknown  or  the  depositor  cannot  be 
found,  shall  be  paid  to  the  treasurer  and 
receiver  general,  to  be  held  by  him  as  trus- 
tee for  the  true  owner  or  his  legal  repre- 
sentatives. Provident  Inst,  for  Sav.  v.  Ma- 
lone,  34:  1129,  31  Sup.  Ct.  Rep.  661,  221  U. 
S.  660,  55  L.  ed.  899. 

52.  Only  hotel  keepers  having  less  than 
twenty-five  bedrooms  are  in  a  position  to 
assail  the  validity  of  a  discrimination  made 
in  favor  of  larger  hotels  by  a  municipal 
ordinance  forbidding  the  keeping  of  billiard 
or  pool  tables  for  hire  or  public  use,  but 
permitting  hotel  keepers  having  twenty- 
five  or  more  bedrooms  to  maintain  a  billiard 
or  pool  room  in  which  their  regular  and 
registered  guests  may  play.  Murphy  v. 
People,  41:  153,  32  Sup.  Ct.  Rep.  697,  225 
U.  S.  623,  56  L.  ed.  1229. 

53.  One  charged  as  the  operator  of  a 
mill  in  the  town  in  which  he  resides,  located 
upon  a  stream,  with  violating  a  statute 
forbidding  the  casting  of  mill  refuse  into 
the  stream,  cannot  take  advantage  of  the 
fact  that  the  statute  might  be  construed  as 
applicable  to  the  owner  of  a  mill  remote 
from  the  stream,  who  cast  refuse  into  it  in 
no  way  connected  with  his  mill,  and  there- 
by be  unconstitutional,  as  discriminating 
against  him  in  favor  of  others  not  mill  own- 
ers, who  performed  a  similar  act.  State  v. 
Haskell,  34:  286,  79  Atl.  852,  84  Vt.  429. 

54.  A  corporation  cannot  avoid  a  statute 
requiring  it  to  pay  its  employees  weekly, 
on  the  theory  that  it  deprives  the  employees 
of  their  constitutional  right  to  contract. 
Lawrence  v.  Rutland  R.  Co.  15:  350,  67  Atl. 
1091,  80  Vt.  370.  (Annotated)' 


22 


ACTION  OR  SUIT,  II.  a. 


//.  Union,  choice,  or  form  of  remedies. 

a.  Kind;  name, 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Objecting  for  first  time  on  appeal  to  form 
of  action,  see  Appeal  and  Error,  756. 

Nature  of  creditor's  suit,  see  Bankruptcy, 
145. 

Converting  action  at  law  into  equitable  pro- 
ceeding by  amendment,  see  Pleading, 
92. 

As  to  election  of  remedies,  see  Election  of 
Remedies. 

55.  A  suit  by  a  resident  taxpayer  of  a 
city,  in  behalf  of  himself  and  all  others 
similarly  situated,  to  restrain  the  carrying 
into  effect  of  an  invalid  contract  for  street 
improvements,  is  in  the  nature  of  a  public 
proceeding  to  test  the  validity  of  the  cor- 
porate acts  involved.  El  Reno  v.  Cleveland- 
Trinidad  Paving  Co.  27:  650,  107  Pac.  163, 
25  Okla.  648. 

56.  The  statutory  adaptation  of  the 
criminal  procedure  of  circuit  courts  to  a 
mayor's  court  is  applicable  only  to  criminal 
proceedings,  and  does  not  change  the  na- 
ture or  character  of  any  case  that  may  be 
brought  before  such  court.  Fortime  v. 
Wilburton,  4:  782,  73  C.  C.  A.  338,  142  Fed. 
114. 

57.  A  suit  to  ascertain,  determine,  and 
decree  the  extent  and  priority  of  a  water 
right  and  appropriation  partakes  of  the  na- 
ture of  an  action  to  quiet  title  to  real  es- 
tate. Taylor  v.  Hulett,  19:  535,  97  Pac.  37, 
15  Idaho,  265. 

58.  A  suit  to  prevent  a  property  owner 
who  had  granted  the  second  story  with 
covenants  requiring  the  respective  parties 
to  keep  their  portions  of  the  property  in 
repair,  and  giving  each  an  option  in  case 
of  rebuilding,  from  interfering  with  the 
right  of  the  grantee  to  rebuild  the  second 
story  after  the  first  one  has  been  replaced, 
is  not  one  for  specific  performance.  Weaver 
T.  Osborne,  38:  706,  134  N.  W.  103,  154 
Iowa,  10. 

Civil  or  criminal. 

Proceeding  for  violation  of  ordinance,  see 
Appeal  and  Error,  46,  50. 

Action  for  penalty,  see  Appeal  and  Error, 
46;   Trial,   160. 

Question  whether  appeal  should  be  taken  to 
civil  or  criminal  court,  see  Appeal  and 
Error,  75. 

Action  for  disbarment  of  attorney,  see  At- 
torneys, 5. 

Contempt  proceedings,  see  Contempt,  13. 

Suit  for  abatement  of  taxes  in  civil  case, 
see  Depositions,  3. 

See  also  Trial,  778,  779. 

59.  A  proceeding  to  recover  a  penalty 
under  a  statute  providing  as  the  punish- 
ment of  one  who  uses  or  permits  his 
premises  to  be  used  for  violating  a  prohibi- 
tion law  both  fine  and  imjjrisonnient  and  a 
penalty,  is  one  for  the  punishment  of  an 
offense.  Stout  v.  State  ex  rel.  Caldwell, 
45:  884,  130  Pac.  5.13,  36  Okla.  744. 
Digest  1—52  L.R.A.(N.S.) 


60.  An  action  for  the  disbarment  of  an 
attornev  at  law  is  a  civil  proceeding.  Re 
Riggers',  25:  622,  104  Pac.  1083,  24  Okla.  842. 

61.  A  proceeding  to  recover  a  penalty 
under  a  statute  providing  as  the  punish- 
ment of  one  who  uses  or  permits  his  prem- 
ises to  be  used  for  violating  the  prohibition 
law,  both  fine  and  imprisonment  and  a 
penalty,  is  in  the  nature  of  a  civil  action, 
and  is  governed  by  the  rules  of  procedure 
applicable  to  civil,  instead  of  criminal, 
cases.  Stout  v.  State  ex  rcl.  Caldwell,  45: 
884,  130  Pac.  553,  36  Okla.  744. 

62.  Prosecutions  for  violation  of  a  mu- 
nicipal ordinance  regulating  the  sale  of  in- 
toxicating liquors  are  in  their  nature  crim- 
inal, and  the  rules  for  criminal  prosecu- 
tions for  misdemeanors  are  applicable  there- 
to, where  the  power  conferred  upon  the 
municipality  with  respect  to  the  punish- 
ment of  such  offense  is  treated  by  the  stat- 
ute the  same  as  is  the  punishment  ior 
statutory  misdemeanors  generally,  and  the 
sole  punishment  may  be  imprisonment. 
Salt  Lake  City  v.  Robinson,  35:  610,  116 
Pac.  442,  39  Utah,  260. 

63.  The  penalty  incurred  under  the  act 
of  March  3,  1903,  §§  4,  5,  for  inducing  an 
alien  to  migrate  to  the  United  States  for 
the  purpose  of  performing  labor  there,  may 
be  recovered  by  a  civil  action  of  debt, 
brought  by  the  United  States.  Hepner  v. 
United  States,  27:  739,  29  Sup.  Ct.  Rep. 
474,  53  L.  ed.  720,  213  U.  S.  103. 

( Annotated ) 

64.  Although  the  constitutional  remedy 
by  impeachment  does  not  prevent  an  in- 
dictment and  conviction  thereafter,  and  does 
not  extend  beyond  a  removal  from  office  and 
a  disqualification  to  hold  office  during  the 
term  for  which  the  officer  was  elected  or 
appointed,  it  is  in  its  nature  highly  penal, 
and  is  governed  by  rules  of  law  applicable 
to  criminal  prosecutions.  State  ex  rel. 
Brickell  v.  Hasty,  50:  553,  63  So.  559,  184 
Ala.  121. 

65.  An  action  to  compel  the  father  of  a 
bastard  to  contribute  to  its  support  is  civil, 
and  not  governed  by  the  statute  of  limita- 
tions limiting  the  time  for  bringing  pro- 
ceedings of  a  quasi  criminal  or  penal  na- 
ture. State  ex  rel.  Patterson  v.  Pickering, 
40:  144,  136  N.  W.  105,  29  S.  D.  207. 

(Annotated) 

66.  Jurisdiction  to  compel  restoration 
of  stolen  property  is  not  conferred  ex- 
clusively on  the  criminal  courts  so  as  to 
prevent  a  civil  court  from  entertaining  an 
action  to  recover  its  value,  by  a  statute  pro- 
viding that  every  person  convicted  of 
larceny  shall  restore  the  thing  taken  or 
shall  pay  the  full  value  thereof,  and  shall 
be  punished  in  a  specified  manner.  Downs 
v.  Baltimore,  41:  255,  76  Atl.  861,  111  Md. 
674. 

67.  A  conviction  for  disobeying  an  in- 
junctional  order  to  punish  for  acts  in  con- 
tempt of  the  power  and  dignity  of  the  court 
is  reviewable  as  a  criminal  proceeding.  Gar- 
rigan  v.  United  States,  23:  1295,  1G3  Fed. 
16,  89  C.  C.  A.  494. 

68.  An    action    to    compel    the    destruc- 


ACTION  OR  SUIT,  II.  a. 


23 


tion  of  pictures  taken  by  police  authorities 
of  one  accused,  but  not  convicted,  of  crime, 
and  intended  for  the  rogues'  gallery,  is  not 
instituted  to  punish  an  infraction  of  the 
criminal  laws.  Schulman  v.  Whitaker,  7: 
274,   42    So.   227,   117   La.   704. 

69.  A  proceeding  by  a  part"  to  a  suit  to 
punish  the  opposing  party  for  contempt  in 
violating  an  order  of  court  to  the  injury  of 
petitioner's  rights  and  remedies  is  civil.  Vil- 
ter  Mfg.  Co.  v.  Humphrey,  13:  591,  132  Wis. 
587,  112  N.  W,  1095.  (Annotated) 
At  laxr  or  in  equity. 

Statute  abolishing  distinction  between  ac- 
tions at  law  and  in  equity,  see  Consti- 
tutional Law,  57. 

Right  to  follow  remedy  at  law  where  stat- 
ute provides  equitable  remedy,  see 
Election  of  Remedies,   12. 

Proceeding  to  assess  succession  tax  as  one 
in  equity,  see  Taxes,  350. 

70.  In  the  Federal  courts  the  general 
rule  is  that  the  difference  between  causes 
of  action  at  law  and  in  equity  is  sedulous- 
ly preserved;  that  a  legal  cause  of  action 
cannot  be  maintained  in  equity,  nor  can 
equitable  causes  of  action  or  defenses  avail 
in  actions  at  law;  and  this  although  they 
are  permissible  in  the  state  courts  of  the 
district,  and  the  distinction  between  the 
forms  of  actions  at  law  and  suits  in  equity 
has  been  there  abolished.  Platte  Valley 
Cattle  Co.  V.  Bosserman-Gates  Live  Stock  & 
L.  Co.  45:  1 137,  202  Fed.  692,  121  C.  C.  A. 
102. 

71.  Under  a  statute  making  stock- 
holders individually  liable  for  labor  per- 
formed for  the  corporation,  with  a  right  on 
the  part  of  any  stockholder  paying  the  debt 
to  contribution  from  the  others,  a  stock- 
holder who  has  performed  labor  for  the 
corporation  cannot  sue  his  costockholders 
at  law  for  compensation,  but  must  bring 
his  suit  in  equity.  Shurlow  v.  Lewis,  41: 
975,   136  N.   W.  484,   170   Mich.   493. 

(Annotated) 

72.  An  action  by  the  receiver  of  a  bank 
to  hold  a  solvent  stockholder  thereof  lia- 
ble, for  the  benefit  of  creditors  of  the  bank, 
for  the  amount  of  a  credit  allowed  him  by 
the  bank  while  insolvent  upon  his  indebted- 
ness to  the  bank,  in  consideration  of  a  sale 
by  him  to  the  bank  of  his  shares  of  its  own 
stock,  in  which  the  prayer  is  that  the  credit 
be  canceled,  that  the  defendant  be  decreed 
to  hold  the  amount  thereof  in  trust,  and  for 
such  other  relief  as  is  equitable,  is  an  equi- 
table proceeding.  McGregor  v.  Fitzpatrick, 
25:  50,  65  S.  E.  859,  133  Ga.  332. 
Contract  or  tort. 

Federal  court  following  state  decision  as  to 
right  to  waive  tort  and  sue  on  con- 
tract, see  Courts,  322. 

Changing  action  on  contract  to  action  in 
tort  by  amendment,  see  Pleading,  103. 

Sustaining  complaint  in  action  on  contract 
as  one  for  action  in  tort,  see  Pleading, 
389. 

73.  Where  the  relation  between  the  par- 
ties to  an  action  has  been  established  by 
contract,  express  or  implied,  if  the  law  im- 
poses certain  duties  because  of  the  existence 
Digest   1-52  L.R.A.(N.S.) 


of  the  relationship  created,  a  violation  of 
the  contract  obligations  may  be  waived  and 
an  action  in  tort  maintained  for  any  viola- 
tion of  such  imposed  duties.  Hobbs  v. 
Smith,  34:  697,  115  Pac.  347,  27  Okla.  830. 

74.  The  character  of  an  action  as  to 
whether  it  is  in  tort  or  ex  contractu  must 
be  determined  by  the  nature  of  the  griev- 
ance, rather  than  the  form  of  the  petition; 
and  in  a  suit  against  a  common  carrier  for 
a  breach  of  duty  in  failing  to  put  a  pas- 
senger off  at  the  proper  station,  the  courts 
are  inclined  to  consider  the  action  as 
founded  in  tort,  unless  a  special  contract 
very  clearly  appears  to  be  made  the  grava- 
men of  the  complaint.  Ft.  Smith  &  W.  R. 
Co.  v.  Ford,  41:  745,  126  Pac.  745,  34  Okla. 
575. 

75.  As  a  general  rule,  where  a  passen- 
ger is  entitled  to  damages  for  a  breach  of 
the  carrier's  duty,  the  remedy  is  in  tort; 
the  wrong  done  the  passenger  and  the 
violation  of  the  public  duty  being  the 
gravamen  of  the  action.  Ft.  Smith  &  W. 
R.  Co.  v.  Ford,  41 :  745,  126  Pac.  745,  34 
Okla.  575. 

76.  When  the  action  against  a  carrier 
for  damages,  brought  by  a  passenger, 
sounds  in  tort,  the  allegation  of  the  con- 
tract of  carriage  is  regarded  as  a  mere  in- 
ducement to  the  action  to  show  the  right 
to  sue  as  a  passenger.  Ft.  Smith  &  W.  R. 
Co.  V.  Ford,  41 :  745,  126  Pac.  745,  34  Okla. 
575. 

77.  A  petition  stating  a  contract  of 
carriage  and  charging  an  injury  consequent 
upon  a  violation  of  a  duty  owing  plaintiff, 
in  an  action  against  a  common  carrier, 
states  a  cause  of  action  sounding  in  tort 
ratlier  than  contract,  although  it  alleges  an 
express  contract  as  an  inducement;  the 
gist  of  the  action  being  defendant's  breach 
of  public  duty.  Ft.  Smith  &  W.  R.  Co.  v. 
Ford,   41 :  745,   126   Pac.   745,   34   Okla.   575. 

78.  One  for  whose  use  a  steamship  ticket 
has  been  purchased,  to  be  forwarded  to  him 
at  the  place  of  embarkation,  may  maintain 
an  action  in  tort  against  the  carrier  for 
neglect  promptly  to  forward  the  ticket,  so 
that  he  is  compelled  to  remain  in  a  strange 
place  without  money  or  friends  for  several 
months  until  it  arrives.  Zabron  v.  Cunard 
S.  S.  Co.  34:  751,  131  N.  W.  18,  151  Iowa, 
345. 

79.  An  action  against  a  telegraph  com- 
pany by  the  undisclosed  principal  of  the 
addressee  of  a  telegram,  to  recover  damages 
resulting  from  the  delivery  of  a  false  tele- 
gram, is  an  action  of  tort  for  a  false  repre- 
sentation in  the  nature  of  a  false  warranty, 
caused  by  the  breach  of  the  duty  to  exer- 
cise reasonable  care  to  receive  and  transmit 
authorized  messages  only,  and  not  an  ac- 
tion on  a  contract.  Western  U.  Teleg.  Co. 
V.  Schriver,  4:  678,  141  Fed.  538,  72  C.  C. 
A.  596. 

80.  An  action  to  recover  damages  aris- 
ing from  the  negligence  of  an  expert  em- 
ployed to  audit  certain  accounts  is  founded 
on  breach  of  contract,  and  not  in  tort. 
East  Grand  Forks  v.  Steele,  45:  205,  141 
N,   W.   181,   121   Minn.  296. 


24 


ACTION  OR  SUIT,  II.  b,  c. 


81.  One  who  undertakes  to  erect  a  wind- 
mill on  another's  building  comes  into  such 
a  relation  to  him  that  he  may  be  held  lia- 
ble in  tort  in  case  he  does  his  work  so  negli- 
gently that  the  mill  falls  and  injures  the 
building.  Flint  &  W.  Mfg.  Co.  v.  Beckett, 
12:  924,  79  N.  E.  503,  167  Ind.  491. 

82.  Where  a  tenant  loses  a  stock  of 
merchandise  stored  in  the  leased  premises, 
and  there  was  no  covenant  in  the  lease 
whereby  the  landlord  was  obligated  to  re- 
pair the  premises  or  keep  them  in  repair, 
and  the  tenant  seeks  to  recover  from  the 
landlord  the  value  of  the  goods  destroyed 
by  lire  occurring  in  the  building,  on  the 
ground  that  the  fire  was  caused  by  defects 
in  the  heating  plant  or  flue,  or  the  negli- 
gent operation  and  management  of  the 
furnace  and  heating  plant,  the  recovery, 
if  any  shall  be  had,  must  be  founded  upon 
the  law  of  negligence,  and  cannot  rest  upon 
the  theory  of  an  implied  contract.  Russell 
V.  Little,  42:  363,  126  Pac.  529,  22  Idaho, 
429.  (Annotated) 

83.  The  right  to  waive  the  tort,  and  sue 
in  contract  for  conversion  of  property,  does 
not  fail  because  the  property  is  consumed 
rather  than  converted  into  money.  Rey- 
nolds V.  New  York  Trust  Co.  39:  391,  188 
Fed.  611,  110  C.  C.  A.  409. 

84.  An  action  to  recover  money  which  a 
corporation  was  compelled  to  pay  as  a  tax 
to  replace  a  payment  which  had  been  em- 
bezzled by  the  tax  collector  does  not  sound 
in  tort  so  as  not  to  come  within  a  statute 
giving  a  court  jurisdiction  to  hear  and  de- 
termine claims  on  contract  against  the 
state,  although  it  is  alleged  that  in  com- 
pelling payment  of  the  substituted  amount 
the  taxing  officers  acted  illegally  and 
wrongfullv.  State  v.  Mutual  L.  Ins.  Co. 
42:  256,  93  N.  E.  213,  175  Ind.  59, 

( Annotated ) 

85.  A  customer  injured  by  a  vicious 
horse  let  by  a  liveryman  may  sue  for  his 
damages  either  for  breach  of  the  owner's 
implied  warranty  to  furnish  a  safe  animal, 
or  in  tort  for  his  negligent  failure  to  do  so. 
Conn  V.  Hunsberger,  25:  372,  73  Atl.  324,  224 
Pa.   154. 

h.  Consolidation. 

(See  also  same   heading  in   Digest   L.R.A. 
1-70.) 

Prejudicial  error  in,  see  Appeal  and  Ebbob, 
1053. 

86.  Several  torts  arising  from  separate 
levies  upon  and  detention  of  the  same  prop- 
erty may  be  sued  for  in  a  single  action 
brought  against  the  officer  making  the 
wrongful  lew.  Smith  v.  White,  14:  530,  60 
S.  E.  404,  63  W.  Va.  472. 

87.  The  court  has  power,  in  its  discre- 
tion, to  consolidate  for  trial  an  action  to 
recover  for  wrongful  death  caused  by  the 
negligence  of  a  railroad  company  with  simi- 
lar actions  for  deaths  of  other  persons  at 
the  same  time,  caused  in  the  same  way,  un- 
der a  statute  permit tin^r  the  court  to  con- 
Digest  1-52  Ii.R.A.(N.S.) 


solidate  causes  of  like  nature,  or  relative 
to  the  same  question,  when  it  appears  rea- 
sonable to  do  so.  Diggs  V.  Louisville  &  N. 
R.  Co.  14:  1029,  156  Fed.  564,  84  C.  C.  A.  330. 

c.  Splitting;  successive  suits. 

(See  also  same  heading  in   Digest   L.R.A. 
1-70.) 

88.  The  different  items  of  damages  re- 
sulting from  a  breach  of  an  accountant's 
contract  properly  to  audit  certain  accounts 
do  not  constitute  separate  causes  of  action. 
East  Grand  Forks  v.  Steele,  45:  205,  141 
N.   W.   181,   121  Minn.  296. 

89.  Each  holding  over  at  the  expiration 
of  the  term  and  of  yearly  periods  there- 
after, by  a  tenant  under  a  lease  for  a  deli- 
nite  terra  of  years,  constitutes  a  new  term, 
separate  and  distinct  from  those  that  pre- 
ceded it,  so  that  a  recovery  for  the  rent  due 
for  one  term  after  that  for  several  has  be- 
come due  will  not  bar  an  action  for  the 
rent  which  accrued  for  the  other  terms. 
Kennedy  v.  New  York,  25:  847,  89  N.  E. 
360,  196  N.  Y.  19.  (Annotated) 

90.  The  damages  to  be  recovered  for 
breach  by  the  landlord  of  his  implied  cov- 
enant to  put  the  lessee  in  possession  at  the 
beginning  of  the  term  must  be  recovered 
in  a  single  action.  Sloan  v.  Hart,  21:  239, 
63  S.  E.  1037,  150  N.  C.  269. 

.  91.  Upon  refusal,  by  the  seller,  after  par- 
tial performance,  longer  to  comply  with  his 
contract  to  sell  and  deliver  a  quantity  of 
articles  in  instalments,  the  buyer  cannot 
keep  the  contract  in  force  and  maintain  ac- 
tions for  breaches  as  they  occur,  but  must 
recover  all  his  damages  in  one  suit.  Pakas 
V.  Hollingshead,  3:  1042,  77  N.  E.  40,  184 
N.  Y.  211.  (Annotated) 

92.  That  several  items  entered  in  one  ac- 
count were  furnished  at  different  times  and 
upon  different  orders  does  not  avoid  the  rule 
that  an  account  cannot  be  split  into  differ- 
ent demands,  but  that,  in  case  there  is  an 
attempt  to  do  so,  a  judgment  upon  one  por- 
tion of  it  will  bar  further  actions;  and  the 
fact  that  the  sales  were  on  a  credit  of  thirty 
days  is  immaterial  if  the  accounts  have  all 
become  due  and  payable  when  the  lirst  ac- 
tion is  brought.  Williams- Abbott  Electric 
Co.  V.  Model  Electric  Co,  13:  529,  112  N.  W. 
181,  134  Iowa,  665.  (Annotated) 

93.  Successive  actions  may  be  main- 
tained from  time  to  time  as  tjjamages  and 
loss  occur,  by  a  mill  owner  for  injuries  to 
his  water  power  by  deposits  of  sand  caused 
by  a  boom  erected  in  the  stream ;  and  he  is 
not  compelled  to  sue  for  present  and  pro- 
spective damages  in  one  suit.  Pickens  v. 
Coal  River  Boom  &  T.  Co.  24:  354,  65  S. 
E.  865,  66  W.  Va.  10. 

94.  Under  the  rule  of  decision  in  the 
Indian  territory  prior  to  statehood,  where 
structures  and  appurtenances  contributing 
to  an  injury  to  land  were  of  a  permanent 
nature,  and  their  injurious  use  continued 
for  a.  long  number  of  years,  without  effort 

1  to  abate,  all  damages  for  injury  to  adjacent 
lands,   both   present   and   prospective,   were 


ACTION  OR  SUIT,  II.  d. 


25 


recoverable  in  a  single  action.  Choctaw, 
0.  &  G.  R.  Co.  V.  Drew,  44:  38,  130  Pac. 
1149,  37  Okla.  396. 

95.  There  is  no  splitting  of  the  cause  of 
action  against  a  railroad  company  for 
causing  loss  of  a  building  by  fire,  for 
which  it  pays  the  owner  the  amount  over 
and  above  what  is  covered  by  insurance,  al- 
though the  insurance  company  brings  the 
action  to  compel  the  railroad  company  to 
pay  it  merely  the  portion  of  the  loss  which 
it  had  been,  compelled  to  pay  under  its 
contract.  British  American  Assur.  Co.  v. 
Colorado  &  S.  R.  Co.  41 :  1202,  125  Pac.  508, 
1135,  52  Colo.  589. 

96.  Where  a  complainant  presents  in  a 
state  court  a  part  of  the  existing  and 
known  facts  which  it  claims  entitles  it  to 
an  order  restraining  the  prosecution  of 
suits  upon  the  same  causes  of  action  in 
two  different  courts,  and  fails  to  secure 
it,  and  subsequently  presents  by  another 
bill  in  the  Federal  court  the  other  part 
of  those  facts,  thereby  splitting  its  cause 
of  action,  it  exhibits  a  lack  of  diligence 
fatal  to  the  second  application.  Guard- 
ian Trust  Co.  v.  Kansas  City  S.  R.  Co.  28: 
620,  171  Fed.  43,  96  C.  C.  A.  285. 

By  servant  ivrongfully  dismissed. 

97.  A  wrongfully  discharged  employee 
cannot  maintain  successive  actions  for 
wages  accruing  during  the  remaining  term 
of  the  contract,  but  one  recovery  will  bar 
further  action.  Carmean  v.  North  Ameri- 
can Transp.  &  Trading  Co.  8:  595,  88  Pac. 
834,  45  Wash.  446. 

98.  But  one  action  lies  in  case  of  the 
wrongful  discharge  of  an  employee  before 
expiration  of  the  period  for  which  he  was 
employed,  and  all  damages  must  be  recov- 
ered in  it.  Doherty  v.  Schipper  &  Block, 
34:  557,  95  N.  E.  74,  250  111.  128. 

99.  Recovery  of  judgment  for  a  week's 
wages,  followed  by  its  satisfaction,  by  a 
person  wrongfully  discharged  from  service 
before  expiration  of  tlie  term,  is  a  bar  to 
any  further  recovery  for  the  remainder  of 
the  period  for  which  he  was  employed. 
Doherty  v.  Schipper  &  Block,  34:  557,  95  N. 
E.    74,   250    111.    128. 

100.  A  judgment  in  an  action  for  monthly 
wages  bars  subsequent  recovery  for  all  peri- 
ods which  had  been  completed  when  the  ac- 
tion was  commenced.  Smith  v.  Cashie  & 
C.  R.  &  Lumber  Co.  5:  439,  54  S.  E.  788,  142 
N.  C.  26. 

101.  A  servant  employed  for  an  entire 
term  at  wages  payable  in  instalments  at 
stated  intervals  may,  upon  being  wrong- 
fully discharged,  treat  the  contract  as  exist- 
ing, and  sue  at  each  period  of  payment  for 
the  salary  then  due.  Smith  v.  Cashie  &  C. 
R.  &  Lumber  Co.  5:  439,  54  S.  E.  788,  142 
N.  C.  26. 

Against   stockholder. 

102.  The  contract  of  a  stockholder  to 
pay  the  debts  of  the  corporation  is  the 
basis  of  a  double  liability  imposed  upon 
him  by  statute  to  pay  the  corporate  debts 
in  the  event  of  the  dissolution  of  the  cor- 
poration, or  to  pay  them  in  the  case  of  an 
unsatisfied  judgment  against  it;  and  the 
Digest  1-52  Ii.R.A.(N.S.) 


cause  of  action  to  enforce  it  is  indivisible, 
whether  it  is  brought  upon  one  or  several 
of  the  shares  of  stock  owned  by  tlie  stock- 
holder. Harrison  v.  Remington  Paper  Co. 
3:954,  140  Fed.  385,  72  C.  C.  A.  405. 
For  injuries  by  seepage. 

103.  Seepage  to  the  injury  of  neighboring 
property  from  an  irrigation  ditcli  con- 
structed under  authority  of  law,  in  the 
ordinary  and  usual  manner,  cannot  be  re- 
garded as  making  the  ditch  a  nuisance,  for 
which  successive  actions  can  be  brought  un- 
til it  is  abated.  Middlekamp  v.  Bessemer 
Irrig.  Ditch  Co.  23:  795,  103  Pac.  280,  46 
Colo.  102. 

Injuries  to  person  and  to  property. 

Action  for  injury  to  land  by  wrongful  con- 
struction of  railway  thereon,  see  Trial, 
996. 

104.  Where  one  suffers  injuries  to  his  per- 
son, and  also  to  his  property,  from  the  same 
negligent  act  of  the  defendant,  two  distinct 
causes  of  action  exist,  and  a  recovery  for 
tlie  injury  to  the  property  is  not  a  bar  to  a 
subsequent  action  for  the  injury  to  the  per- 
son. Ochs  v.  Public  Service  R.  Co.  (N.  J. 
Err.  &  App.)  36:  240,  80  Atl.  495,  ,81  N.  J. 
L.   661.  (Annotated) 

105.  Settlement  of  an  action  for  loss  of 
baggage  by  a  carrier  will  preclude  the  main- 
tenance of  another  action  for  mental  an- 
guish caused  by  delay  in  its  delivery.  Eller 
V.  Carolina  &  W.  R.  Co.  3:  225,  52  S.  E.  305, 
140  N.  C.  140. 

106.  An  insurer  of  an  automobile  who 
had,  in  accordance  with  a  provision  of  the 
policy,  become  subrogated  to  the  claim  of 
the  owner  for  damages  thereto  against  a 
street  railway  company  before  the  institu- 
tion by  such  owner  of  a  suit  for  personal 
injuries  growing  out  of  the  same  accident, 
in  which  a  judgment  has  been  recovered,  is 
not  precluded  thereby  from  maintaining  an 
action.  Underwriters  at  Lloyd's  Ins.  Co, 
V.  Vicksburg  Traction  Co.  51:  319,  63  So. 
455^  —  Miss.  — .  (Annotated) 

t.  Joinder. 

(See  also  same  heading  and  Pleading,  I.  u, 
in   Digest   L.R.A.    1-70. J 

Sufficiency  of  objection  to  reach  misjoindei 
of  actions,  see  Appeal  and  Erkor,  316, 

Raising  question  of  misjoinder  for  first 
time  on  appeal,  see  Appeal  and  Eruoe, 
760. 

Error  in  failing  to  dismiss  suit  for  mis- 
joinder, see  Appeal  and  Error,  1050. 

Joinder  of,  to  prevent  multiplicity  of  suits, 
see  Equity,  I.  g. 

Joinder  of  parties,  see  Parties,  T.  b:  II.  b, 

Demurrer  to  declaration  for  misjoinder,  see 
Pleading,   592. 

107.  A  cause  of  action  for  the  loss  of 
goods  intrusted  to  a  warehouseman  may  be 
set  up  in  two  counts,  one  upon  an  express 
agreement  as  to  the  character  of  the  ware- 
house and  the  care  to  be  exercised,  the  other 
upon  the  implied  undertaking  of  the  ware- 
houseman   to    exercise    reasonable    care    in 


26 


ACTION  OR  SUIT,  II.  d. 


providing  an  adequate  and  uafe  place  for 
the  storage  of  the  goods.  I>ockc  v.  Wiley, 
24:  1117,   105   Pae.   11,   81    Kan.   143. 

108.  Under  a  statutory  provision  that 
several  causes  of  action  may  be  united  in 
the  same  petition  where  they  arise  out  of 
the  same  .transaction  or  transactions  con- 
nected with  the  same  subject  of  action,  a 
petition  in  an  action  against  a  bailee  for 
loss  of  a  piano,  which  alleges  that  the  loss 
was  caused  by  the  defendant's  negligence  in 
failing  to  insure  the  piano  as  agreed,  and 
also  that  the  loss  was  caused  by  his  negli- 
gence in  causing  the  fire  in  which  the  piano 
was  destroyed,  but  which  asks  only  for  a 
single  judgment  equal  to  the  value  of  the 
piano,  contains  no  improper  joinder,  as 
only  a  single  cause  of  action  is  stated. 
Stone  V.  Case,  43:  1168,  124  Pae.  960,  34 
Okla,  5. 

109.  The  physical  presence  of  the  injured 
person  is  not  necessary  to  effect  a  trans- 
action within  the  meaning  of  a  statute 
permitting  the  joinder  of  causes  of  action 
arising  out  of  the  same  transaction,  or 
transactions  connected  with  the  same  sub- 
ject of  action.  Mc Arthur  v.  Moffett,  33:  264, 
128  N.  W.  445,  143  Wis.  564. 

110.  In  possessory  and  proprietary  ac- 
tions, whether  involving  real  or  personal 
property,  the  subject  of  action,  causes  aris- 
ing out  of  transactions  concerning  which 
may,  by  statute,  be  joined  in  a  single  ac- 
tion, is  composed  of  the  plaintiff's  primary 
right,  together  with  the  specific  propertv  it- 
self. McArthur  v.  Moffett,  33:  264,  128  N. 
W.  445,  143  Wis.  564. 

111.  Causes  of  action  in  tort  may  be 
joined,  in  separate  counts,  in  the  same  peti- 
tion, with  causes  of  action  in  contract,  when 
they  all  arise  out  of  the  same  transaction, 
or  transactions  connected  with  the  same 
subject  of  action,  and  affect  all  the  parties 
to  the  action.  Aylesbury  Mercantile  Co.  v. 
Fitch,  23:  573,  99   Pae.   1089,  22  Okla.  475. 

112.  A  single  right  of  action  arising  from 
several  concurrent  acts  of  negligence  may  be 
united  in  the  same  complaint,  under  Minn. 
Rev.  Ijaws  1905,  §  4154,  which  permits  sev- 
eral causes  of  action  to.be  joined  in  the 
same  pleading  when  they  arise  out  of  the 
same  transaction  or  transactions.  Mayberry 
V.  Northern  P.  R.  Co.  12:  675,  110  N.  W. 
356,  100  Minn.  79. 

113.  A  cause  of  action  for  refusal  to  pay 
Instalments  due  on  a  building  contract  can- 
not be  united  in  the  same  count  with  a 
cause  for  refusal  to  permit  the  contractor  to 
comply  with  his  contract  and  finish  the 
work  after  the  completed  portion  has  been 
destroved  by  act  of  God.  Milske  v.  Steiner 
Mantel  Co.  5:  1105,  63  Atl.  471,  103  Md.  235. 

114.  A  cause  of  action  against  two  jointly 
for  obstructing  a  stream  cannot  be  joined 
with  other  causes  against  such  persons  and 
others  severally  for  acts  contributing  to 
such  obstruction.  William  Tackaberry  Co. 
v.  Sioux  City  Service  Co.  40:  102,  1.32  N.  W. 
945,  134  N.  W.  1064,  154  Iowa,  358. 

]  15.  Actions  to  recover  damages  for  the 
suffering  which  one  undergoes  before  death 
because  of  another's  negligence,  and  for  the 
Digest  1-52  ]1R.A.(N.S.) 


death  itself,  cannot  be  joined.  Hendricks  v. 
American  Express  Co.  32:  867,  128  S.  W. 
1089,    138    Ky.    704.  (Annotated) 

116.  Claims  for  the  benefit  of  the  widow 
and  next  of  kin  of  one  killed  by  another's 
wrongful  act,  and  for  the  benefit  of  his 
estate,  may  be  joined  in  one  action  to  hold 
the  one  responsible  for  the  wrong  liable  for 
the  damages.  Tillar  v.  Reynolds,  30:  1043, 
131  S.  W.  969,  96  Ark.  358. 

117.  A  municipal  corporation  and  the 
owner  of  a  lot  abutting  upon  a  street  are 
improperly  joined  in  an  action  to  recover 
for  injuries  resulting  to  a  traveler  on  the 
street  from  falling  over  a  retaining  wall,  on 
the  lot,  where  the  allegation  against  the 
lot  owner  is  that  he  negligently  maintained 
upon  his  premises  a  dangerous  pit,  which 
encroached  upon  a  sidewalk,  without  any 
barrier  or  other  protection  to  warn  persons 
using  the  sidewalk  or  to  prevent  them  from 
falling  into  the  pit,  and  the  allegation 
against  the  municipality  is  that  it  wrongful- 
ly permitted  the  sidewalk  to  be  in  a  danger- 
ous condition  without  any  such  barrier,  and 
that  at  the  time  of  plaintiff's  injury  it  neg- 
ligently allowed  an  electric  light  near  the 
place  of  the  accident  to  be  unlighted,  since 
an  entirely  different  cause  of  action  is  al- 
leged against  each  defendant.  Mineral  City  v. 
Gilbow,  25:  627,  90  N.  E.  800,  81  Ohio  St.  263. 

118.  A  joint  action  may  be  maintained 
against  the  owner  of  a  railway  track  upon 
which  its  passenger  was  injured  by  colli- 
sion of  the  car  in  which  he  was  riding 
with  the  car  of  another  carrying  company 
admitted  to  joint  use  of  its  tracks,  and  such 
other  company,  in  order  that  the  liability 
for  compensation  to  the  injured  passenger 
may  be  fixed  in  one  action  upon  the  company 
whose  negligence  occasioned  the  injury. 
Maumee  Valley  R.  &  L.  Co.  v.  Montgomery, 
26:  987,  91  N.  E.  181,  81  Ohio  St.  426. 

119.  Although  a  claim  for  expenses  in  at- 
tending school,  expenses  pending  suit,  and 
for  delay  in  being  prepared  for  business 
cannot  be  joined  with  a  claim  for  the  return 
of  money  paid  on  an  agreement  to  teach 
the  plaintiff  in  certain  lines  of  instruction 
until  he  is  proficient  therein  on  the  groimd 
that  such  contract  has  been  rescinded,  the 
entire  suit  should  not  be  dismissed,  but  such 
formal  claims  for  damages  should  be  strick- 
en out,  and  the  case  left  to  stand  on  the 
suit  for  the  return  of  the  money  so  paid 
out.  Timmerman  v.  Stanley,  i:  379,  51  S. 
E.  760,  123  Ga.  850. 

120.  Where  a  landlord  has  sued  out  a 
wrongful  attachment  against  his  tenant,  and 
levied  the  same  upon  the  goods  of  the  ten- 
ant situated  in  the  leased  premises,  which 
were  used  as  a  hotel,  and  also  closed  the 
building,  the  damages  arising  from  the  loss 
of  profits  of  the  business  and  those  arising 
by  reason  of  the  taking  of  the  property 
constitute  a  single  cause  of  action  which 
may  be  stat  d  in  one  count  where  the  acts 
complained  of  took  place  as  part  of  a  sin- 
gle transaction.  Wellington  v.  Spencer,  46: 
469,  132  Pae.  675,  37  Okla.  461. 

121.  Allegations  of  injury  to  health  may 
be  inserted  in  a  complaint   for   injuries  to 


ACTION  OR  SUIT,  II.  e,  III. 


27 


real  estate  by  the  maintenance  of  a  nui- 
sance, as  specifications  of  damage  done  to 
the  property  as  a  place  of  residence.  Louis- 
ville &  N.  Terminal  Co.  v.  Lellyett,  i :  49, 
85  S.  W.  881,  114  Tenn.  368. 
Legal  and   equitable  actions. 

122.  A  statutory  action  to  quiet  title  and 
a  common-law  action  to  recover  damages  for 
trespass  upon  the  property  involved  may 
be  joined  vmder  a  statute  permitting  the 
joinder  of  causes  which  arise  out  of  trans- 
actions connected  with  the  same  subject  of 
action.  McArthur  v.  Moffett,  33:  264,  128 
N.  W.  445,  143  Wis.  564. 

123.  A  claim  for  damages  for  injury  to 
business,  reputation,  and  credit  of  the 
grantee  of  a  mortgagor,  by  reason  of  an  il- 
legal sale  under  the  mortgage,  cannot  be  in- 
cluded in  a  bill  against  the  mortgagee  for 
an  accounting  after  a  subsequent  foreclo- 
sure ;  and  the  court  will  not  take  cognizance 
of  it,  although  it  grants  the  accounting. 
Manville  Covering  Co.  v.  Babcock,  14:  900, 
68  Atl.  421,  28  R.  I.  496.  (Annotated) 

c.  Multifariousness. 

(See  also  same  heading  and  Pleading,  I.  u, 
in  Digest  L.R.A.  1-70.) 

124.  A  bill  for  divorce  is  not  rendered 
multifarious  by  joining  therein  a  prayer  for 
a  conveyance  by  the  husba«d  to  the  wife  of 
lands  paid  for  with  her  funds  the  title  to 
•which  was  taken  in  his  name.  Singer  v. 
Singer,   29:  819,    51   So.   755,   165   Ala.    144. 

(Annotated) 

125.  A  bill  by  a  stockholder  of  a  corpora- 
tion is  multifarious  which  seeks  to  recover 
on  behalf  of  the  corporation  against  its 
directors  for  fraudulent  management  of  its 
affairs,  against  another  corporation  to  re- 
cover profits  made  by  it  on  business  which 
should  have  come  to  the  former,  and  by  such 
stockholder  individually  against  the  di- 
rectors of  the  two  corporations  to  recover 
for  depreciation  in  the  value  of  the  stock  of 
the  former.  Kelly  v.  Thomas,  51:  122,  83 
Atl.  307,  234  Pa.  419. 

126.  A  bill  seeking  to  hold  several  direct- 
ors of  a  bank  liable  for  losses  caused  by 
unlawful  loans  and  dividends  extending  over 
a  series  of  years,  during  some  of  which  a 
portion  of  the  defendants  were  not  mem- 
bers of  the  board  of  directors,  and  were  in 
no  way  responsible  for  the  losses,  is  multi- 
farious. Emerson  v.  Gaither,  8:  738,  64  Atl. 
26,  103  Md.  564. 

127.  A  bill  to  enjoin  the  omission  from  a 
publication  which  purports  to  give,  for  the 
benefit  of  customers,  a  complete  list  of  all 
reputable  persons  engaged  in  a  certain  line 
of  business  in  a  certain  city,  of  the  name 
of  a  reputable  person  so  engaged,  is  not 
multifarious  in  joining  as  defendants  the 
publisher  and  the  business  men  who  induce 
the  omission,  by  threats  and  false  state- 
ments, for  the  advantage  of  their  own  busi- 
ness. Davis  V.  New  England  R.  Pub.  Co. 
25:1024,  89  N.  E.  565,  203  Mass.  470. 
Digest  1-52  I<.R.A.(N.S.) 


328.  A  bill  in  equity  to  cancel  deeds  to 
clear  cloud  from  title,  and  to  obtain  an  ac- 
counting for  timber  taken  from  the  lands, 
is  not  bad  for  multifariousness  because  two 
tracts  are  involved,  where  the  demand  as  to 
each  is  founded  upon  the  same  title,  and 
the  primary  relief  sought  as  to  each  is  the 
same,  and  all  the  defendants  are  alike  in- 
terested in  the  vital  questions  presented, — 
title,  appropriateness  of  the  remedy,  and 
sufficiency  of  the  bill, — and  the  only  difi'er- 
ences  relate  to  the  parties  defendant  and 
the  subsidiary  matter  of  accounting.  Depue 
V.  Miller,  23:  775,  64  S.  E.  740,  65  W.  Va. 
120. 

129.  A  defendant  in  a  bill  charging  sev- 
eral acts  of  wrongdoing,  in  all  of  which  he 
was  concerned,  cannot  object  because  others 
are  made  defendants  who  had  no  part  in  a 
portion  of  the  illegal  transactions.  Emer- 
son v.  Gaither,  8:  738,  64  Atl.  26,  103  Md. 
5G4. 

130.  An  objection  that  a  bill  to  enjoin  the 
maintenance  of  obstructions  in  a  passage- 
way and  the  discharge  into  it  of  foul  air  is 
multifarious  on  the  ground  that  it  charges 
both  a  trespass  and  a  nuisance  is  waived  by 
going  to  trial  on  the  merits.  Vaughan  v. 
Bridgh£fm,  9:  695,  79  N.  E.  739,  193  Mass. 
392. 

/.  Identity. 


Of  cause  of  action  to  enforce  stockholders' 
liability,  see  Corporations,  359. 


131.  Tlie  test  of  the  identity  of  causes  of 
action  is  the  identity  of  the  facts  essential 
to  their  maintenance.  Harrison  v.  Reming- 
ton Paper  Co.  3:  954,  140  Fed.  385,  72  C.  C. 
A.  405, 


III.  Commencement  and  termination. 


Serving  notice  of  action  on  city  as  com- 
mencement of,  see  Evidence,   1347. 

When  action  is  commenced  so  as  to  sus- 
pend running  of  statute  of  limitations, 
see  Limitation   of  Actions,  285-289. 


132.  Where,  by  statute,  a  right  of  action 
for  personal  injuries  survives  the  death  of 
the  person  injured,  and  the  right  of  action 
for  death  is  not  an  independent  one  in  fa- 
vor of  survivors,  but  is  a  survival  of  a 
right  belonging  to  the  deceased,  an  amend- 
ment by  an  administrator  after  the  death 
of  the  person  injured,  of  an  action  brought 
by  him  before  his  death,  claiming  addi- 
tional damages  for  the  death,  does  not  con- 
stitute an  abandonment  of  the  original 
cause  of  action  for  one  not  originating  un- 
til after  the  action  was  begun,  so  as  to  pre- 
clude a  recovery  in  such  action.  Kling  v. 
Torello,  46:  930,  87  Atl.  987,  87  Conn.  301. 


28 


ACTIVE  TRUST— ADDITIONAL  SERVITUDE. 


ACTIVE    TRUST. 

Right  to  vote  stock  of  corporation  as,  see 

COIU'OUATIONS,  379. 


ACT  OF  BANKRUPTCY. 

What  is,  see  Bankbuptct,  6. 


ACT  OF  GOD. 


Snow  storm  and  wind  as,  see  Cakbiebs,  209. 
Destruction   of   building   by   gradual   decay 

as,  see  Landlobd  and  Tenant,  22. 
Razing   of   building   by    public    authorities, 

as,  see  Landlobd  and  Tenant,  23. 
Injury  to  passengers  by,  see  Cabriers,  209, 

235,  216. 
Carrier's  liability  for  loss  of,  or  injury  to, 

goods  by,  see  Carriers,  814,   866-869, 

894. 
As  ground  of  nonperformance  of  contract, 

see  Contracts,  IV.  b,  2. 
As  excuse  for  breach  of  contract,  see  Con- 
tracts, 635-637. 
Burden  of  proof  as  to,  see  Evidence,  100, 

381. 
Covenant  of  landlord  to  rebuild  in  case  of 

destruction  of  building  by,  see  Land- 
lord AND  Tenant,  22,  23. 
Effect    of    application    of    statute    limiting 

hours  of  labor,  see  Master  and  Sebv- 

ant,  90. 
As  proximate  cause,  see  Pboximate  Cause, 

II. 
Liability    of    railroad    company    for    flood 

caused  by,   see  Railroads,   302. 
Question  for  jury  as  to,  see  Trial,  594. 

1.  The  insanity  of  a  railroad  engineer 
who,  to  secure  water  for  the  engine,  causes 
it  to  be  uncoupled  from  the  train  and  run 
forward  to  the  water  tank,  the  conductor 
and  fireman  accompanying  him,  and  who, 
on  the  return  trip,  runs  the  engine  at  ex- 
cessive speed  and  collides  with  the  train, 
causing  the  death  of  a  horse  being  trans- 
ported, cannot  be  considered  as  an  act  of 
God,  under  the  common-law  rule  that  no 
excuse  avails  a  common  carrier  in  case  of 
loss  unless  occasioned  by  the  act  of  God 
or  the  public  enemies  of  the  state.  Central 
R.  Co.  v.  Hall,  4:  898,  52  S.  E.  679,  124  Ga. 
322.  (Annotated) 

2.  Where  a  cover  is  put  over  growing 
plants  and  fruit  to  protect  them  from  ordi- 
nary and  usual  cold  and  frost,  and  the  cover 
is  burned  by  the  negligence  of  another,  in- 
jury to  the  growing  plants  and  fruit  by 
ordinary  and  usual  cold  and  frost  that 
should  have  been  expected  at  the  time  and 
place  of  the  negligence  is  not  such  an  act 
of  God  as  will  relieve  from  liability  the 
party  who  negligently  burned  the  cover. 
Benedict  Pineapple  Co.  v.  Atlantic  C.  L.  R. 
Co.  20:  92,  46  So.  732,  55  Fla.  514. 

3.  A  rainfall  or  cloud-burst  which  has 
irreg'.ilarly  and  infrequently  occurred  a 
Digest  1-52  L.R.A.(N.S.) 


number  of  times  within  the  memory  of 
man  in  a  particular  locality,  and  has  caused 
heavy  freshets  in  a  particular  stream,  is  a 
tiling  tliat  can  reasonably  be  expected  to  oc- 
cur again,  and  is  therefore  not  classed  as 
vis  major  or  the  "act  of  God"  for  which  the 
law  of  negligence  and  damages  does  not 
hold  any  human  agency  responsible.  Will- 
son  V.  Boise  City,  36:  1158,  117  Pac.  115, 
20  Idaho,  133. 

4.  A  heavy  rainfall  or  cloud-burst  and 
consequent  floods  unprecedented  and  so  ex- 
traordinary as  to  have  been  beyond  reason- 
able anticipation,  and  such  as  had  not  been 
known  to  occur  in  the  locality  for  a  long 
series  of  years,  is  classed  in  law  as  the  "act 
of  God,"  and  no  liability  attaches  to  any- 
one for  the  damages  done  thereby.  Willson 
V.  Boise  City,  36:  1158,  117  Pac.  115,  20 
Idaho,  133. 

5.  An  ordinary  flood  is  one  the  repeti- 
tion of  which,  though  at  uncertain  inter- 
vals, might,  by  the  exercise  of  ordinary 
diligence  in  investigating  the  character 
and  habits  of  the  stream,  have  been  antic- 
ipated. Chicago,  R.  I.  &  P.  R.  Co.  v.  Mc- 
Kone,  42:  709,  127  Pa*.  488,  36  Okla.  41. 

6.  An  extraordinary  flood  is  one  of 
those  unexpected  visitations  whose  com- 
ing is  not  foreseen  by  the  natural  course  of 
nature,  and  whose  magnitude  and  destruc- 
tiveness  could  not  have  been  anticipated 
and  prevented  bv  the  exercise  of  ordinary 
foresight.  Chicago,  R.  I.  &  P.  R.  Co.  v. 
McKone,  42:709,  127  Pac.  488,  36  Okla.  41. 


ACTOR. 

Liability  for  injury  by  fellow  actor  during 
frolic,  see  Master  and  Sb»vant,  858. 


♦  •» 


ACTRESS. 

Assumption    of   risk   hj,   see   Master    and 

Servant,  622. 
Contributory  negligence  of,  see  Master  and 

Servant,  643. 

♦-•-# 


ACTS  OF  PARLIAMENT. 

Adoption  of,  see  Common  Law,  5. 

♦-•-♦ 

ADDITIONAL  INSURANCE. 

Condition  in  insurance  policy  as  to,  see  IH- 
subance,  III.  e,  1,  e. 


ADDITIONAL  SERVITUDE. 

See  Eminent  Domain,  IV. 


ADDRESS. 


ADDRESS— ADMIRALTY,  I. 

ADJUSTMENT. 


2d 


Presumption    as   to   correctness    of    address 
on  letter,  see  Evidence,  512, 


ADEMPTION. 


Presumption  and  burden  of  proof  as  to,  see 

Evidence,  234. 
Sufficiency  of  proof  of,  see  Evidence,  2290. 
Power  of  servitor  of  incompetent  to  adeem 

legacies,  see  Incompetent  Persons,  32. 
Of  legacy  generally,  see  Wills,  III.  1. 


ADJOINING  0"WNERS. 

Boundaries  between,  see  Boundaries,  II. 

Oral  agreement  of,  to  maintain  fences,  see 
Contracts,  248. 

Right  of  adjoining  owner  to  enforce  restric- 
tive covenant  in  deed,  see  Covenants 
AND  Conditions,  96,  97. 

Rights  as  to  trees  on  boundary  line,  see 
Highways,  105. 

Compelling  removal  of  wall  by  injunction, 
see  Injunction,  22. 

Right  to  lateral  support,  see  Lateral  Sup- 
port. 

Erection  on  property  of  pole  by  means  of 
which  access  is  obtained  by  burglar  to 
house  of  neighbor,  see  Negligence,  95. 

Remedy  of,  to  prevent  maintenance  of  nui- 
sance, see  Nuisances,  II.  a. 

Right  to  interfere  with  construction  of  un- 
licensed wharf  on  neighboring  premis- 
es, see  Nuisances,  74. 

Right  to  enjoin  erection  and  use  of  hunting 
blind  on  adjoining  premises,  see  Nui- 
sances,  75. 

Rights  in  party  wall,  see  Party  Wall. 

1.  L'pon  termination  of  a  lease  of  land 
adjoining  a  parcel  owned  by  a  coal  miner, 
upon  both  of  which  he  has  established  a 
culm  pile,  the  miner  is  not,  in  case  he 
abandons  the  culm  upon  the  leased  prop- 
erty, and  permits  its  reclamation  by  the 
lessor,  bound  to  retain  that  upon  his  side 
of  the  division  line,  under  penalty  of  losing 
title  to  it  if  he  permits  it  to  drift  over 
onto  the  former  leasehold.  Preston  Goal  & 
Improv.  Co.  v.  Raven  Run  Coal  Co.  43:  460, 
200  Fed.  405,  118  C.  C.  A.  491.    (Annotated) 


ADJOURNMENT. 


Of  legislature,  see  Time,  4. 
In  general,  see  Continuance  and  Adjourn- 
ment. 


ADJUSTER. 


Waiver  or  estoppel  by  acts  of,  see  Insur- 
ance, V.  b,  5,  h. 
Digest   1-52  L.R.A.(N.S.) 


Of   claim   on    insurance   policy,    see   Insur- 
ance, V.  b,  5,  h. 


ADMINISTRATION. 

Of    decedent's    estate,    see    Executors    and 
Administrators. 


ADMIRAI.TY. 


J.  Jurisdiction,    1—5, 
II.  Practice;   pleading  and  procedure, 
6. 

Matters  as  to  salvage,  see  Salvage. 

J.  Jurisdiction. 

(See   also  same   heading  in   Digest   L.R.A. 
1-70.) 

JnTisdictlon  of  subject-matter  gener- 
ally. 

1.  Admiralty  has  jurisdiction  of  a  claim 
upon  a  marine  insurance  policy  containing 
a  sue  and  labor  clavise,  to  recover  the  ex- 
pense of  removing  the  insured  cargo  from 
the  vessel  to  avoid  a  peril  covered  by  the 
policy,  although  it  is  moved  overland.  St. 
Paul  F.  &  M.'ins.  Co.  v.  Pacific  Cold  Stor- 
age Co.  14:  1 161,  157  Fed.  625,  87  C.  C.  A.  14. 

2.  A  collision  between  a  vessel  and  a 
supporting  pier  of  a  bridge  over  a  navigable 
water  way  of  the  United  States,  caused  by 
the  negligent  management  of  the  vessel,  and 
resulting  in  the  collapse  of  a  span  of  the 
bridge,  and  its  fall  into  the  stream,  is  a 
nonmaritime  tort,  and  a  cause  of  action 
arising  thereon  is  therefore  not  within  the 
exclusive  admiralty  jurisdiction  of  the  Fed- 
eral courts,  but  the  owner  of  the  bridge 
may  pursue  the  remedy  afforded  by  a  state 
statute,  even  though  that  law  gives  a  lien 
on  the  vessel.  Martin  v.  West,  36:  592,  32 
Sup.  Ct.  Rep.  42,  222  U.  S.  191,  56  L.  ed. 
159. 

3.  The  fact  that  the  principal  injury  to 
a  bridge,  through  collision  of  a  vessel  with 
it,  was  caused  by  the  water  after  it  fell, 
does  not  take  it  out  of  the  rule  that  admiral- 
ty has  no  jurisdiction  over  the  matter  if 
the  bridge  was  so  connected  with  the  shore 
that  it  immediately  concerned  commerce  on 
land.  West  v.  Martin,  21:  324,  97  Pac.  1102, 
51  Wash.  85.  (Annotated) 
Personal    injury. 

4.  The  admiralty  jurisdiction  of  a  Fed- 
eral district  court  extends  to  a  cause  of 
action  against  a  stevedore  company  arising 
out  of  an  injury  to  one  of  its  employees, 
caused  by  its  negligent  failure  to  secure 
the  hatch  covers  on  a  vessel  lying  in  navi- 
gable waters,  whereby  such  employee  was 
injured  while  engaged  in  loading  and  stow- 
ing the  ship's  cargo,  since  even  if  it  be 
assumed  that  the  requirement  aa  to  locality 


30 


ADMIRALTY,  II.— ADULTERATION 


in  tort  cases,  while  indispensable,  is  not 
necessarily  exclusive,  still  the  wrong  which 
was  the  subject  of  the  suit  was  of  a 
maritime  nature.  Atlantic  Transport  Co. 
V.  Imbrovek,  51:  1157,  34  Sup.  Ct.  Rep.  733, 
234  U.  S.  52,  58  L.  ed.  1208.       (Annotated) 

5.  Admiralty  has  jurisdiction  of  a  suit 
by  &  man  to.  recover  damages  for  loss  to 
him  because  of  the  injury  to  his  wife  by  a 
collision  between  two  vessels  upon  one  of 
which  she  was  a  passenger.  New  York  & 
Long  Branch  S.  B.  Co.  v.  Johnson,  42:  640, 
195  Fed.  740,  115  C.  C.  A.  540. 

II.  Practice;   pleading  and  procedure. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Computation  of  interest  to  be  allowed  by  ad- 
miralty court  for  tort  arising  within 
state,  see  Conflict  of  Laws,   134. 

Review  of  findings,  see  Appeal  and  Ebbob, 
VII.  1,  3. 

6.  In  the  application  in  a  court  of  ad- 
miralty of  a  state  statute  giving  a  right  of 
action  for  wrongful  death,  any  defense  is 
open  which  would  be  open  in  such  state 
courts.  Quinette  v.  Bisso,  5:  303,  136  Fed. 
825,  69  C.  C,  A.  503. 


ADOPTED   NAME. 

Taking  out  insurance  policy  in,  see  Insub- 
ANCE,  85,  86. 


ADOPTED   STATUTE. 

Construction  of,  see  Statutes,  II.  c. 


ADOPTION. 


ADMISSION. 


To  school,  see  Schools,  I.  b. 


ADMISSIONS. 


By  objecting  that  claim  on  which  evidence 
was  offered  was  not  denied  by  plead- 
ings,  see  Appeal  and  Ebbob,   538. 

Of  attorneys,  see  Attobneys,  I.  a. 

On  application  for  continuance,  eflFect  of, 
see  Continuance  and  Adjoubnment, 
IV. 

Estoppel  by,  see  Estoppel,  III.  e. 

By  bank  officer,  see  Evidence,  182. 

As  evidence,  see  Evidence,  IX. 

Failure  to  attempt  to  disprove  charges  in 
divorce  suit  as  admission  of  their 
truth,  see  Judgment,  179. 

By  pleading  or  failure  to  plead,  see  Plead- 
ing, I.  m. 

By  demurrer,  see  Pleading,  VII.  e. 

By  hostile  witnesses,  see  Tbial,  620. 

By  motion   for  nonsuit,  see  Tbial,  686. 

See  also  Stipulation. 

1.  The  admission  of  a  building  con- 
tractor that  he  is  liable  for  liquidated  dain- 
ages  because  of  delay  in  finishing  the  work 
is  not  binding  on  one  whose  breach  of  con- 
tract to  furnish  needed  material  is  alleged 
to  have  caused  the  delay,  and  to  have  ren- 
dered the  latter  liable  to  make  good  the  loss. 
Iowa  Mfg.  Co.  v.  Sturtevant  Mfg.  Co. 
18:  575,  162  Fed.  460,  89  C.  C.  A.  346. 
Digest   1-S2  L.R.A.CN.S.) 


Of  common  law,  see  CoiJMON  Law,  4,  5. 
Of  constitution,  see  Constitutional  Law, 

I.  a,  1. 
Of  name,  see  Name,  5-7. 
Of  statute,  see  Statutes,  II.  c. 
Of  child  generally,  see  Pabent  and  Child, 

III. 
Conflict   of   laws    as    to    rights    of    adopted 

child,  see  Conflict  of  Laws,  122-125. 
Inheritance  by  or  through  adopted  children, 

see    Descent    and    Distbibution,    16- 

23. 
Evidence  to   show   propriety   of   permitting 

adoption  of  child,  see  Evidence,  2026. 
Sufficiency  of  evidence  of  undue  influence  in 

securing,  see  Evidence,  2104. 
Right  of  adopted  child  to  take  under  will, 

see  Wills,  170. 


AD  QUOD  DAMNUM  PROCEEDINGS. 


See  Eminent  Domain. 


ADULTERATION. 


Regulations  as  to  adulteration  of  food  and 

drugs   as   interference   with    commerce, 

see  CoMMEBCE,   105-110. 
Conflict   of   laws   as   to,   see   Conflict    or 

Laws,  101. 
Police    power    as    to,    see    Constitutionai. 

Law,  72s. 
Place  of  sale  of  adulterated  confectionery, 

see  Sale,  26,  26. 
Of   linseed   oil,    see    Constitutional   Law, 

728. 
Of  milk  by  servant,  master's  liability,  see 

Damages,  306. 
Of  food,  see  Food. 

Of  cotton  seed  meal,  see  Statutes,  44. 
Of  kerosene  oil,  see  Statutes,  251;  Tbial^ 

228. 

1.  Labeling  a  compound  as  40  per  cent 
thinner  and  60  per  cent  linseed  does  not 
take  it  out  of  the  operation  of  the  statute 
forbidding  the  sale  of  linseed  oil  which  does 
not  answer  the  test  of  purity  recognized  by 
the  United  States  Pharmacopoeia.  Ameri- 
can Linseed  Oil  Co.  v.  Wheaton,  41:  149, 
125  N.  VV.  127,  25  S.  D.  60. 


ADULTERY— ADVANCEMENTS. 


ADULTERY. 

Assault  to  prevent  adultery  with  wife,  see 
Assault  aisd  Baitery,  47. 

Simultaneous  trial  for  abduction  and  adul- 
tery, see  Criminal  Law,  69. 

Evidence  in  prosecution  for,  see  Evidence, 
1641. 

Sufficiency  'of  proof  of  crime,  see  Evidence, 
2401. 

Effect  of  acquittal  of  one  jointly  charged 
with  another  to  discharge  the  other, 
see  Judgment,  223. 

False  cliarge  of,  as  ground  for  divorce,  see 
Divorce  and  Separation,  27-30,  33. 

Defense  to  action  for  divorce  on  grou'^d  of, 
see  Divorce  and   Separation,   G5,   66. 

Change  of  alimony  because  of  wife's  adul- 
tery, see  Divorce  and  Separation,  126. 

Admissibility  of  confession  of,  in  action  for 
divorce,  see  Evidence,  1230. 

Wife's  testimony  as  to  confessions  of  adul- 
tery by  husband,  see  Evidence,  1313. 

Admissibility  in  wife's  suit  for  divorce  of 
husband's  statements  as  to  her  adul- 
tery, see  Evidence,  1311. 

Evidence  of  other  acts  of,  in  action  for  di- 
vorce, see  Evidence,  1840. 

Sufficiency  of  evidence  of,  in  action  for  di- 
vorce, see  Evidence,  2205,  2206,  2209. 

Effect  of  wife's  adultery  on  gift  to  her  by 
husband,   see  Gift,   4. 

Homicide  of  wife  committing,  see  Homicide, 
62,  69,  72. 

Effect  of  husband's  adultery  on  right  to  re- 
ly on  wife's  adultery  as  defense  to  ac- 
tion for  support,  see  Husband  and 
Wife,  208,  209. 

Act  forbidding  remarriage  of  person  giiilty 
of,  see  Marriage,  17,  18. 

Slander  in  charging,  see  Pleading,  363. 

1.  A  man  and  woman  married  to  other 
persons,  who  come  into  a  community  where 
the  facts  are  unknown  and  live  quietly  as 
husband  and  wife,  with  nothing  to  excite 
suspicion  that  their  intercourse  is  adulter- 
ous, cannot  be  convicted  of  living  in  a  state 
of  open  and  notorious  adultery.  People  v. 
Salmon,  2:  1186,  83  Pac.  42,  148  Cal.  303. 

(Annotated) 

2.  Absence  of  intention  to  violate  a 
statute  fixing  a  penalty  for  adultery  is  no 
defense  to  a  prosecution  for  such  violation. 
State  v.  Westmoreland,  8:  842,  56  S.  E. 
673,  76  S.  C.  145. 

3.  One  who  in  good  faith  marries  a 
young  woman  upon  her  representation  that 
she  is  unmarried  is  not  guilty  of  adultery, 
although  she  in  fact  has  a  husband  living, 
and  he  made  no  inquiries  regarding  her 
history  except  from  herself.  State  v.  Au- 
dette,  18:  527,  70  Atl.  833,  81  Vt.  400. 

(Annotated) 

4.  The  sexual  intercourse  of  a  mar- 
ried man  with  a  woman  other  than  his  wife, 
whether  married  or  single,  is  adultery,  with- 
in the  meaning  of  a  statute  making  adultery 
a  misdemeanor.  Bashford  v.  Wells,  18:580, 
96  Pac.  663,  78  Kan.  295.  (Annotated) 

5.  The  spouse  of  either  of  the  guilty 
Digest   1-52  I..R.A.(N.S.) 


parties  is  empowered  to  make  complaint 
against  either  or  both  of  them  under 
a  statute  defining  adultery  as  the  voluntary 
sexual  intercourse  by  a  married  person  with 
a  person  other  than  the  offender's  husband 
or  wife,  and  providing  that  no  prosecution 
shall  be  commenced  except  on  the  complaint 
of  the  husband  or  wife.  State  v.  Wesie,  19: 
786,  118  N.  W.  20,  17  N.  D.  567. 

(Annotated) 


•♦♦»■ 


ADULTS. 

Adoption  of,  see  Parent  and  Child,  32. 


AD   VALOREM  TAX. 

Taxability  of  privilege  of  selling  intoxicat- 
ing liquors,  see  Taxes,  47. 


ADVANCEMENTS. 

What  property  passes  under  deed  convey- 
ing land  from  parent  to  child  as  ad- 
vancement, see  Deeds,  61. 

Presumption  of,  see  Evidence,  567. 

Parol  evidence  to  show  intent,  see  Evi- 
dence, 974. 

Evidence  of,  generally,  see  Evidence,  1812. 

Voluntary  advancements  by  devisee,  see 
Executors    and    Administrators,    99. 

Advancement  of  funeral  expenses,  see  Ex- 
ecutors AND  Administrators,  113. 

1.  The  maintenance  by  a  parent  of  an 
adult  child  of  unsound  mind  is  not  with  any 
view  to  a  portion  or  settlement  in  life  with- 
in the  meaning  of  a  statute  making  gifts 
from  parent  to  child  with  such  view  ad- 
vancements. Grain  v.  Mallone,  22  :ii65,  113 
S.  W.  67,  130  Ky.  125. 

2.  Money  which  a  parent  expends  in  the 
care  of  an  adult  child  of  unsound  mind  can- 
not be  charged  against  him  as  an  advance- 
ment in  the  settlement  of  the  parent's  es- 
tate. Grain  v.  Mallone,  22:  1165,  113  S.  W. 
67,  130  Ky.  125.  (Annotated) 

3.  A  deed  of  gift  by  a  father-in-law  to 
his  son-in-law,  accepted  by  the  latter,  wliich 
contains  a  provision  clearly  indicating  that 
it  was  the  grantor's  intentian  that  the  prop- 
erty was  to  be  an  advancement  to  his  daugh- 
ter, the  wife  of  the  grantee,  is  an  advance- 
ment to  her,  under  a  statute  defining  an  ad- 
vancement as  any  provision  by  a  parent, 
made  to  and  accepted  by  a  cliild,  out  of  his 
estate,  during  his  lifetime,  over  and  above 
his  obligation  to  maintain  and  educate,  not- 
withstanding she  may  have  been  ignorant 
not  only  of  the  fact  that  the  deed  contained 
such  a  provision,  but  even  of  the  existence 
of  the  deed  altogether.  Ireland  v.  Dyer, 
26:  1050,  67  S.  E.  195,  133  Ga.  851. 

(Annotated) 

4.  A  grandchild  who  comes  to  the  in- 
heritance  of    his   grandfather   jointly    with 


52 


ADVANCES— ADVERSE  POSSESSION,  1.  a. 


■other  grandchildren,  and,  by  representation, 
with  the  brothers  and  sisters  of  his  fatlier, 
is  bound  to  collate  what  has  been  advanced 
to  his  father,  unless  it  appear  that  the  ad- 
vances were  intended  as  an  extra  portion. 
Re  Desforges,  52:  689,  64  So.  978,  135  La. 
49. 

5.  In  applying  the  analogy  of  the  stat- 
ute of  distributions  to  the  case  of  a  partial 
intestacy  of  the  beneficial  interest  in  undis- 
posed-of  residue,  the  rule  of  equity  is  that 
advances  made  by  the  testator  in  his  life- 
time need  not  be  brous^ht  into  hotchpot. 
Re  Roby,  4  B.  R.  C.  256,  [1908]  1  Ch.  71. 
Also  Reported  in  77  L.  J.  Ch.  N.  S.  169, 
•97  L.  T.  N.  S.  773.  (Annotated) 

6.  Qucere,  as  to  whether  the  statute 
providing  that  an  executor  shall  be  a  trus- 
tee for  the  person  or  persons  who  would  be 
entitled  to  the  estate  under  the  statute  of 
-distributions  in  respect  of  any  residue  not 
expressly  disposed  of,  unless  it  shall  ap- 
pear by  the  will  that  he  is  to  take  bene- 
ficially, requires  advancements  to  be  brought 
into  hotchpot  in  distributing  such  residue. 
Re  Roby,  4  B.  R.  C.  256,  [1908]  1  Ch.  71. 
Also  Reported  in  77  L.  J.  Ch.  N.  S.  169, 
S7  L.  T    N.  S.  773. 


ADVANCES. 


By  factors,  see  Factors,  3. 

Interest  on,  see  Interest,  I.  b. 

Lien  for  money  advanced  to  pay  freight  on 
material,  see  Mechanics'  Liens,  49. 

Right  to  subrogation  of  one  making,  see 
Subrogation. 

Right  of  one  advancing  money  to  redeem 
from  tax  sale,  see  Taxes,  253,  254. 

Right  of  one  advancing  money  to  pay  tax, 
see  Taxes,  262. 

Return  of  advance  payments  by  vendee  up- 
on rescission  of  contract,  see  Vendor 
and  Purchaser,  17.  -  - 


ADVERSE    CLAIMANTS. 

Who  are,  in  proceedings  to  re-establish  lost 
record  titles  to  land,  see  Notice,  16. 


ADVERSE  POSSESSION. 

J.  What   constitutes,    1—18. 
a.  In  general,   1—12. 
ft.  On    boundary,     13—17. 

c.  Vendor  and  purchaser,  18—20. 

d.  Landlord  and  tenant,  21. 

e.  As     to     doiver,     mortgage,     or 

trust,  22—26. 

f.  As  to  tenants  in  common  and 

by  entirety,  27—31.  , 

g.  As  to  remaindermen  or  rever- 

sioners,   32—38. 
h.  As  to  public;  hightvay,  canal, 
or  tide   lands,    39—55. 
Disest  1-52  L.R.A.(N.S.) 


/. — continued. 

i.  Color  of  title,  56—66. 
j.  Claim;   hostility,    67—71, 
Tc.  Extent  and  kind  of  possession, 
72-78. 
II.  Effect,  time  required,  79—00. 
III.  Who  may  hold  adversely,  91. 

Loss,  by  abandonment,  of  title  to  land  ac- 
quired by,  see  Abandonment,  1. 

Error  in  instructions  in  action  to  recover 
possession,  see  Appeal  and  Error, 
1320. 

Conveyance  by  rightful  owner  not  in  pos- 
session of  land  as  against  adverse  hold- 
er, see  Champerty  and  Maintenance, 
9. 

Right  to  enforce  restrictive  covenant  against 
one  holding  adversely  to  covenantors, 
see   Covenants   and   Conditions,    115. 

Equitable  jurisdiction  of  suit  to  establish 
title  of  plaintiff  to  land  held  adversely 
by  defendants,  see  Equity,  70,  97. 

Recognition  in  equity  of  title  acquired  by, 
see  Equity,  13P. 

Estoppel  of  tenant  to  set  up  title  by,  see 
Estoppel,  243-250. 

As  to  easements  by  prescription,  see  Ease- 
ments, 11.  b;  Judgment,  29. 

Prescriptive  right  to  fish,  see  Fisheries, 
16,  17. 

Right  to  compensation  for  improvements 
on  land  held  adversely,  see  Improve- 
ments. 

Suit  by  guardian  of  insane  person  to  quiet 
title  vesting  in  ward  by  adverse  pos- 
session, see  Incompetent  Persons,  29. 

Injunction  against  adverse  user,  see  In- 
junction,  181. 

As  to  limitation  of  action,  see  Limitation 
OF  Actions. 

Of  mining  claim,  see  Mines,  4,  7. 

Notice  of  rights  from  possession  of  land 
generally,  see  Notice,  II.  b. 

Acquiring  right  to  maintain  nuisance  by 
prescription,  see  Nuisances,  182,  ]83. 

Parties  in  suit  by  one  claiming  adversely, 
see  Parties,  189. 

Statute  as  to  conveyance  of  land  held  ad- 
versely, see  Statutes,  336;  Vendor 
AND  Purchaser,  88. 

Question  for  jury  as  to  whether  possession 
was  adverse,  see  Trial,  617. 

Title  acquired  by,  as  defective  or  unmarket- 
able, see  Vendor  and  Purchaser,  51. 

Of  water,  see  Waters,  II.  k. 

/.  What  constitutes. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A, 
1-70.) 

1.  No  possession  can  be  deemed  adverse 
to  a  party  who  has  not  at  the  time  the 
right  of  entry  and  possession.  Webster  v. 
Pittsburg,  C.  &  T.  R.  Co.  15:  1154,  84  N.  E. 
592,  78  Ohio  St.  87. 

2.  The  statute  of  limitations  does  not, 
for  want  of  adverse  actual  possession,  ap- 


ADVERSE  POSSESSION,  I.  b,  c. 


33 


ply  in  favor  of  one  claiming  coal  in  a  state 
of  nature,  in  place,  and  not  developed. 
Newman  v.  Newman,  7:  370,  55  S.  E.  377, 
60  W.  Va.  371. 

3.  The  mere  use  by  the  public  of  a  strip 
of  lake  shore  for  picnics,  strolling,  pleasure 
driving,  and  hauling  sand,  will  not,  no  mat- 
ter how  long  continued,  vest  in  it  the  right 
to  continue  such  use,  where  the  use  was  not 
confined  to  a  well-defined  line  of  travel. 
Poole  V.  Lake  Forest,  23:  809,  87  N.  E.  320, 
238  III.  305. 

4.  Possession  under  a  tax-sale  certifi- 
cate is  not  adverse  until  the  expiration  of 
the  redemption  period.  Salt  Lake  Invest. 
Co.  v.  Fox,  13:  627,  90  Pac.  564,  32  Utah, 
301.  (Annotated) 

5.  One  who,  having  conve7ed  his  home- 
stead to  his  daughter  to  escape  payment  of 
a  note,  secures  what  he  thinks  to  be  a  con- 
veyance, but  which  is  in  fact  a  life  lease, 
takes  possession,  makes  improvements,  and 
treats  the  land  as  his  own,  the  daughter  ac- 
knowledging his  ownership,  may  be  found 
to  have  been  in  adverse  possession.  Free- 
man v.  Funk,  46:  487,  117  Pac.  1024,  85 
Kan.  473. 

6.  Defects  in  the  record  title  of  one  in 
possession  of  real  estate  in  good  faith  un- 
der color  of  title  will  not  prevent  his  ob- 
♦■-aining  a  title  by  adverse  possession. 
Waterman  Hall  v.  Waterman,  4:  776,  77  N. 
E.  142,  220  111.  569. 

7.  Ignorance  on  the  part  of  the  true 
owner  of  title  to  real  estate  does  not  pre- 
vent the  acquisition  of  a  title  adverse  to  it. 
Waterman  Hall  v.  Waterman,  4:  776,  77  N. 
E.  142,  220  111.  569. 

8.  No  title,  right,  or  privilege  other 
than  those  acquired  by  the  ad  quod  dam- 
num proceedings  can  be  secured  by  the  in- 
stitution of  such  proceedings  to  acquire  a 
right  to  flow  land  for  a  millpond  followed 
by  possession  and  use  alone,  no  matter  how 
long  continued.  Gross  v.  Jones,  32:  47,  122 
N.  W.  681,  85  Neb.   77. 

9.  An  upper  room  in  a  building  may  be 
th^  subject  of  adverse  possession.  Iredale 
V,  Loudon,  3  B.  R.  C.  688,  40  Can.  S.  C.  313. 

10.  Title  to  the  surface  of  land  verti- 
cally over  a  railway  tunnel  may  be  acquired 
by  possession,  continued  for  t^e  requisite 
length  of  time,  adverse  to  the  railway  com- 
pany, although  during  such  time  the  rail- 
way company  has  been  continuously  occu- 
pying and  using  the  tunnel.  Midland  R. 
€0.  V.  Wright,  4  B.  R.  C.  230,  [1901]  1  Ch. 
738.  Also  Reported  in  70  L.  J.  Ch.  N.  S. 
411,  49  Week.  Rep.  474,  84  L.  T.  N.  S. 
225,  17  Times  L.  R.  261. 

Effect  of  coverture  or  infancy. 

11.  Title  by  adverse  possession  cannot 
be  acquired  against  a  married  woman  pend- 
ing coverture.  McCreary  v.  Coggeshall,  7: 
433,  53  S.  E.  978,  74  S.  C.  42. 

12.  The  statute  of  limitations  is,  during 
the  minority  of  the  trustees,  prevented  from 
running  upon  possession  being  taken  under 
a  deed  of  a  married  woman  for  whose  use 
property  was  conveyed  to  a  trustee  with 
power  to  sell  by  joining  her  in  the  deed,  if 
-at  the  time  of  the  conveyance  the  trustee  is 
J>igest  1-52  I1R.A.(N.S.) 


dead  and  the  title  has  descended  to  his  in- 
fant heirs.  Cameron  v.  Hicks,  7:  407,  53 
S.  E.  728,   141  N.  C.  21. 

b.  On  houndary. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  boundaries,  generally,  see  Boun- 
daries. 

Sufficiency  of  evidence  to  show  adverse 
nature  of  possession,  see  Evidence, 
2191,   2192. 

Adverse  possession  by  servant,  see  Land- 
lord AND  Tenant,  6. 

See  also  Infra,  22,  23,  51.  , 

13.  The  intention  determines  the  ques- 
tion whether  or  not  the  possession  of  one 
holding  to  a  fence  placed  on  a  mistaken 
boundary  is  adverse  to  the  true  owner.  Ed- 
wards v.  Fleming,  33:  923,  112  Pac.  836, 
83  Kan.  653.  (Annotated) 

14.  The  encroachment  of  one,  in  the 
erection  of  his  building,  on  neighboring 
property  through  mistake,  is  not  such  pos- 
session as  will  ripen  into  title  by  lapse  of 
time.  Davis  v.  Owen,  13:  728,  58  S.  E.  581, 
107  Va.  283. 

15.  One  who  takes  and  holds  possession 
of  land  as  far  as  a  division  fence,  under  the 
mistaken  belief  that  it  is  his,  gains  title 
by  adverse  possession,  if  he  intends  to  hold 
to  the  fence,  claiming  the  land  as  his  own, 
with  no  concession  that  there  may  be  a 
mistake  as  to  the  location  of  the  true  line, 
nor  intention  to  surrender  any  land  that 
may  not  prove  to  be  his.  Turner  v.  Mor- 
gan,  52:  io6,   165   S.   W.   684,   158   Ky.   511. 

16.  The  possession  beyond  his  true  line, 
of  the  grantee  of  a  particular  lot,  who  oc- 
cupies up  to  fences  set  over  on  his  neighbor's 
property,  claiming  the  ground  as  part  of  his 
lot  and  basing  his  possession  on  no  other 
claim  of  right,  is  not  adverse  to  the  true 
owner.  Chicago,  M.  &  St.  P.  R.  Co.  v.  Han- 
ken,  19:  216,  118  N.  W.  527,  140  Iowa,  372. 

17.  A  religious  society  which  is  permit- 
ted by  public-school  trustees  to  make  use, 
for  religious  purposes,  of  property  to  which 
they  hold  title,  cannot,  upon  such  license, 
base  a  claim  of  title  by  adverse  possession 
to  a  strip  lying  between  the  school  property 
and  its  owner's  fence.  Davis  v.  Owen,  13: 
728,  58  S.  E.  581.  107  Va.  283. 

c.  Vendor  and  purchaser. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

See  also  Infra,  29-31. 

18.  A  grantor  of  real  property  who  re- 
mains in  possession  of  the  premises  con- 
veyed cannot  set  up  title  as  against  the 
grantee  or  his  heirs,  by  adverse  possession, 
if,  by  his  deed,  he  has  warranted  generally 
the  title  to  the  land.  Blake  v.  O'Neal,  16: 
1 147,  61  S.  E.  410,  63  W.  Va.  483. 


34 


ADVERSE  POSSESSION,  I.  d.— g. 


19.  A  grantor  by  warranty  deed  may  ac- 
quire title  against  his  grantee  by  adverse 
possession  under  color  of  title,  and  the  rule 
estopping  a  grantor  from  setting  up  after- 
acquired  title  does  not  apply.  Chatham 
V.  Lonsford,  25:  129,  63  S.  E.  81,  149  N. 
C.  363.  (Annotated) 

20.  Title  by  adverse  possession  does  not 
begin  to  run  in  favor  of  one  who  enters 
upon  land  under  an  executory  contract  for 
the  purchase  thereof,  until  he  distinctly 
and  unequivocally  repudiates  the  title  of  his 
vendor.  De  Bergere  v.  Chaves,  51 :  50,  93 
Pac.  762,  14  N.  M.  352. 

d.  Landlord  and  tenant. 

(See  also   same   heading  in  Digest   L.R.A. 
1-10.) 

21.  Adverse  title  to  property  held  under 
a  lease  may  be  secured  by  possession  for  the 
requisite  period,  under  a  decree  in  partition 
which  treated  the  title  as  a  fee.  Townsend 
v.  Boyd,  12:  1148,  66  Atl.  1099,  217  Pa.  .386. 

(Annotated) 

e.  As  to  dower,  mortgage,  or  trust. 

(See  also   same   heading  in  Digest  L.R.A. 
1-10.) 

Mortgage. 

Adverse  possession  by  mortgagee,  see  Moet- 
GAGE,    165. 

22.  Where  a  mortgage  is  a  mere  se- 
curity, the  lien  of  which  expires  if  not  en- 
forced or  renewed  in  six  years,  failure  to  en- 
force the  lien  against  the  grantee,  from  the 
mortgagor,  of  land  adjoining  the  mortgaged 
tract,  who  took  adverse  possession  of  a  strip 
of  the  mortgaged  property  along  the 
boundary  between  the  two  tracts,  until 
the  lien  of  the  mortgage  expires  as  to  it, 
places  the  grantee  in  the  same  situation 
as  though  no  mortgage  had  existed,  and  his 
possession  is  adverse  from  the  time  it  be- 
gins, and  not  from  the  maturity  of  the 
mortgage.  Thornely  v.  Andrews,  i:  1036, 
82  Pac.  899,  40  Wash.  580.         (Annotated) 

23.  Where  a  mortgage  is  a  mere  security, 
a  grantee,  from  a  mortgagor,  of  land  ad- 
joining the  mortgaged  premises,  who  takes 
possession  of  a  strip  beyond  the  true  bound- 
ary line,  cannot  be  regarded  as  in  adverse 
possession  against  the  mortgagee  until  the 
mortgage  becomes  due.  Thornely  v.  An- 
drews, 1:  1036,  82  Pac.  899,  40  Wash.  580. 

(Annotated) 
Trust. 

24.  An  adverse  title  to  real  estate  may 
be  secured  against  a  trust  where  the  pos- 
session is  taken  under  a  conveyance  from 
one  claiming  adversely  to  the  creator  of  the 
trust.  Waterman  Hall  v.  Waterman,  4:  776, 
77  N.  E.  142,  220  111.  569. 

25.  An  executor  to  whom  is  devised  a 
life  estate  in  real  estate,  with  directions 
that  after  his  death  the  land  be  sold  and 
the  proceeds  devoted  to  charity,  does  not, 
by  qualifying  as  executors,  undertake  to  dis- 
Digest  1-52  L.R.A.(N.S.) 


charge  the  duties  of  the  trust  so  as  to  pre- 
clude his  securing  an  adverse  title  to  the 
property.  Com.  v.  Clark,  9:  750,  83  S.  W. 
100,  119  Ky.  85. 

26.  The  barring  by  the  statute  of  limita- 
tions of  a  legal  estate  conveyed  to  trustees 
for  a  term  of  years  by  possession  held  ad- 
versely to  the  trust  will  apply  to  the  whole 
estate,  so  as  to  prevent  a  recovery  by  those 
entitled  to  possession  at  Ihe  termination  of 
the  trust  period.  Waterman  Hall  v.  Water- 
man, 4:  776,  77  N.  E.  142,  220  111.  569. 

/.  As  to  tenants  in  common  and  by 
entirety. 

(See  also  same  heading  in  Digest  L.RJL. 
1-70.) 

Possession  by  grantee  of  co-life-tenant,  see 
infra,  81. 

When  action  to  recover  rents  and  profits 
from  cotenants  is  barred,  see  Limi- 
tation OF  Actions,  256. 

See  also  Cotenancy,  7. 

27.  One  tenant  by  entireties  cannot  ac- 
quire title  against  his  cotenant  by  adverse 
possession.  Alles  v.  Lyon.  10:  463,  66  Atl. 
81,  216  Pa.  604. 

28.  The  possession  of  one  tenant  in  com- 
mon does  not  become  adverse  to  the  rights 
©f  his  cotenant  until  he  publicly  and  no- 
toriously, or  with  the  knowledge  of  the 
cotenant,  asserts  hostile  title  to  the  prop- 
erty. Baker  v.  Clowser,  43:  1056,  138  N.  W. 
837,  158  Iowa,  156. 

By  grantee   of  cotenant. 
See  also  infra,   81. 

29.  Adverse  and  exclusive  possession  by 
a  tenant  in  common  and  his  grantee  of  the 
common  property  for  the  statutory  period 
will  bar  the  rights  of  his  cotenant.  St. 
Peter's  Church  v.  Bragaw,  10:633,  56  S.  E. 
688,  144  N.  C.   126. 

30.  If  one  cotenant  make  an  executory 
contract  for  sale  to  a  stranger,  of  the  en- 
tire tract,  not  merely  his  interest,  and  the 
purchaser  enter  into  actual  possession,  this 
is  an  ouster  of  the  other  cotenant,  and 
such  possession  for  the  period  of  the  stat- 
ute of  limitations  will  bar  his  rights,  with- 
out other  notice  of  adverse  claim.  Lloyd 
V.  Mills,  32:  702,  69  S.  E.  1094,  68  W.  Va. 
241."  (Annotated) 

31.  One  entering  into  possession  of  real 
estate  under  a  will  and  deed  from  testator's 
executors  purporting  to  convey  the  entire 
tract  may  secure  title  by  adverse  posses- 
sion against  cotenants  of  the  testator. 
Waterman  Hall  v.  W^aterman,  4:  776,  77  N. 
E.  142,  220  111.  569. 

g.  As  to  remaindermen  or  reversioners. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

32.  Where  one  of  several  joint  contin- 
gent remaindermen  and  her  husband,  who 
occupy  the  land  as  tenants  of  the  holder  of 
the  limited  fee,  purchase  the  property  from 


ADVERSE  POSSESSION,  I.  h. 


35 


such  holder  of  the  limited  fee  and  take  a 
conveyance  therefor,  believing  that  they 
are  receiving  a  fee-simple  title,  such  deed 
constitutes  color  of  title,  and  open,  exclu- 
sive, and  notorious  possession  thereunder 
for  a  period  in  excess  of  that  of  the  stat- 
ute for  tlie  adverse  possession  of  real  estate 
bars  a  recovery  by  the  coremaindcrman  in 
expectancy.  Wilson  v.  Linder,  42:  242,  123 
Pac.  487,  21  Idaho,  576. 

33.  An  intermediate  remainder  will  not 
be  cut  out  by  the  acquisition  by  the  ulti- 
mate remainderman  of  the  life  estate  un- 
der adverse  possession  claimed  against  the 
life  tenant  alone,  with  the  admission  that 
the  intermediate  remainder  is  unclaimed 
and  unallected.  McCreary  v.  Coggeshall, 
7:  433,  53  S.  E.   978,  74  S.  C.  42. 

JBy   life   tenant.  \.-.v,  ^   .. 

See  also  supra,  25. 

34.  Possession  taken  under  a  deed  by  a 
married  woman  of  property  which  was  con- 
veyed to  a  trustee  for  her  life  and  to  pre- 
serve remainders,  with  power  to  convey  by 
joining  the  life  tenant,  sets  the  statute  of 
limitations  in  operation  against  not  only 
the  trustee,  but  the  life  tenant  and  the  re- 
maindermen. Cameron  v.  Hicks,  7:  407, 
53  S.  E.  728,  141  N.  C.  21. 

35.  Mere  continued  possession  by  the 
grantor  of  the  granted  premises,  in  which 
he  had  retained  a  life  estate,  and  improve- 
ments thereon,  do  not,  alone,  establish  ad- 
verse possession,  or  a  trust  for  the  benefit 
of  a  wife  married  after  the  conveyance. 
Beechley  v.  Beechley,  9:  955,  108  N.  W. 
762,  134  Iowa,  75. 

36.  Where  one  to  whom  has  been  devised 
a  life  estate  in  real  estate  held  by  testator 
under  bond  for  title,  with  remainder  in  trust 
to  the  state  for  charitable  purposes,  secures, 
although  by  mistake,  after  the  death  of  the 
testator,  a  judgment  directing  conveyance  to 
him  under  the  bond  of  the  fee  as  sole  heir  of 
the  testator,  his  possession  under  the  title 
so  acquired  is  adverse  to  the  remainderman, 
so  that  the  latter's  right  may  be  barred  by 
lapse  of  time.  Com.  v.  Clark,  9:  750,  83  S. 
W.    100,    119   Ky.    85.  (Annotated) 

37.  An  adverse  possession  continued  by 
parties  to  whom  the  one  originating  it 
granted  a  life  estate,  and  their  grantees, 
inures  to  the  benefit  of  the  remainderman, 
and  cannot  operate  to  destroy  the  remain- 
der. Charles  v.  Pickens,  24:  1054,  112  S.  W. 
551,  214  Mo.  212.  (Annotated) 
By  third  persons. 

See  also  supra,  26. 

38.  Possession,  under  a  tax  deed,  of  the 
interest  of  a  life  tenant,  does  not  become 
adverse  to  the  remainderman  until  the 
death  of  the  life  tenant.  Smith  v.  Proctor, 
2:  172,  51  S.  E.  889,  139  N.  C.  314. 

h,.  As  to  public;  hightvay,  canal,  or  tide 
lands. 

(See   also   same    heading   in   Digest   L.B.A. 

1-70.) 

Of    tide    water    in    front    of    property,    see 

Fisheries,  17. 
Digest   1-52  L.R.A.fN.S.) 


39.  Land  granted  by  an  individual  to 
the  state  for  the  purpose  of  a  state  univer- 
sity, upon  certain  conditions  as  to  its  sale, 
is  held  in  trust  and  subject  to  the  pro- 
visions of  Constitution  and  statutes  relat- 
ing to  the  disposition  of  school  lands,  and 
tlie  provision  of  the  statute  making  the 
statute  of  limitations  run  against  the  state 
does  not  apply  to  it,  and  therefore  the 
state's  title  cannot  be  lost  by  adverse  pos- 
session. State  V.  Seattle,  27:  1188,  107 
Pac.  827,  57  Wash.  602. 

40.  A  tender  of  dedication  of  land  as  a 
public  park  may  be  defeated  by  uninter- 
rupted, open,  and  adverse  possession  of  the 
property  by  inclosures  for  the  statutory  pe- 
riod before  any  attempt  is  made  to  accept 
the  dedication.  Canton  Co.  v  Baltimore, 
11:  129,  66  Atl.  679,  106  Md.  69. 

41.  In  the  absence  of  a  constitutional  or 
statutory  provision  to  the  contrary,  the 
statute  of  limitations  will  run  in  favor  of 
one  who  takes  possession  of  a  part  of  a 
parcel  of  land  purchased  by  a  county  for 
jail  purposes,  which  was  not  needed  for  such 
use,  and  was  deeded  to  him  by  a  void  con- 
veyance by  the  county  authorities.  Warren 
County  V.  Lamkin,  22:  920,  46  So.  497,  93 
Miss.  123.  (Annotated) 

42.  Title  may  be  acquired  by  possession, 
by  a  stranger,  to  land  of  a  railway  com- 
pany, even  though  such  land  is  not  super- 
fluous to  its  undertaking  and  therefore  land 
which  the  railway  company  could  not  sell 
or  dispose  of.  Midland  R.  Co.  v.  Wright,. 
4  B.  R.  C.  230,  [1901]  1  Ch.  738.  Also 
Reported  in  70  L.  J.  Ch.  N.  S.  411,  49 
Week.  Rep.  474,  84  L.  T.  N.  S.  225,  17 
Times  L.  R.  261. 

Railroad  right  of  way. 

43.  Private  individuals  cannot  acquire 
title  by  adverse  possession  to  any  portion 
of  the  right  of  way  granted  by  act  of  Con- 
gress of  July  26,  1866,  to  the  predecessor  of 
the  Missouri,  Kansas  &  Texas  Railway  Com- 
pany. Missouri,  K.  &  T.  R.  Co.  v.  Watson, 
14:  592,  87  Pac.  687,  74  Kan.  494. 

44.  The  use  for  agricultural  purposes, 
such  as  grazing  and  cultivation,  by  adjoin- 
ing landowners,  of  otherwise  unused  and 
unfenced  parts  of  the  right  of  way  of  a 
railroad  company,  is  not  inconsistent  with 
or  adverse  to  the  enjoyment  of  the  ease- 
ment. Roberts  v.  Sioux  City  &  P.  R.  Co, 
2:272,   102  N.   W.   60,   73   Neb.   8.    " 

( Annotated  > 

45.  The  erection  and  maintenance  of 
elevators,  granaries,  coal  sheds,  and  similar 
structures  by  an  individual  on  a  railroad 
right  of  way  without  express  agreement 
therefor  will,  in  the  absence  of  notice  of  an< 
adverse  claim,  or  conduct  constituting  such, 
notice  as  matter  of  law,  be  regarded  as  being 
with  the  permission,  consent,  or  license  of 
the  company,  and  subject  to  its  right  to 
resume  possession  of  the  ground  whenever 
necessity  requires  its  use  for  railroad  pur- 
poses. Roberts  v.  Sioux  City  &  P.  R.  Co. 
2:  272,  102  N.  W.  60,  73  Neb.  8. 

46.  Occupancy,  by  an  individual,  of  parts- 
of  the  right  of  way  of  a  railroad  company 
obtained  by  condemnation  proceedings,  witb 


36 


ADVERSE  POSSESSION,  1.  i. 


elevators,  granaries,  coal  sheds,  and  similar 
structures,  used  in  carrying  on  his  business, 
and  by  the  company,  as  a  common  carrier, 
for  convenience  in  handling  his  shipments, 
will  not  be  treated  as  adverse  or  under 
claim  of  title,  unless  actual  notice  of  such 
claim  is  brought  home  to  the  company,  or 
his  conduct  is  such  as  will,  as  a  matter  of 
law,  constitute  such  notice.  Roberts  v. 
Sioux  City  &  P.  R.  Co.  2:  272,  102  N.  W. 
60,  73  Neb.  8. 

47.  Adverse  possession  of  an  uninclosed 
strip  of  railroad  land  is  not  made  out  by 
showing  that  the  company  permitted  the 
claimant  to  unload  and  pile  lumber  upon 
it,  or  that  he  was  allowed  to  cut  grass  on 
the  land,  and  sometimes  to  tie  his  horse  up- 
on it,  when  these  privileges  were  open  to 
anybody,  and  the  claimant  never  notified 
the  company  that  he  asserted  title  to  the 
land.  Illinois  C.  R.  Co.  v.  Hasenwinkle, 
15:  129,  83  N.  E.  815,  232  111.  224. 
Depot  grounds. 

48.  Merely  noting  on  a  plat  a  dedication 
of  land  for  depot  purposes  does  not  endow 
the  entire  tract  set  apart  with  the  incidents 
of  public  use,  so  as  to  prevent  the  acquisi- 
tion of  title  to  it  by  adverse  possession. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Hanken,  19: 
216,  118  N.  W.  527,  140  Iowa,  372. 
Higliixrays ;  alleys. 

Establishment  of  highway  by  prescription 
or  user,  see  Highways,  7,  8. 

49.  A  prescriptive  right  may  be  secured 
to  maintain  steps  upon  a  sidewalk  which 
are  necessary  to  furnish  access  to  abutting 
buildings.  Pickrell  v.  Carlisle,  24:  193,  121 
S.   W.   1029,   135   Ky.    12f). 

50.  Notwithstanding  an  alley  shown  on 
a  plat  has  never  been  used  by  the  public, 
and  has  been  occupied  by  an  individual  for 
more  than  15  years,  the  title  remains  i^ 
the  public,  and  vests  in  the  owners  of  the 
abutting  lots  upon  the  passage  of  an  or- 
dinance vacating  it.  Wallace  v.  Cable,  42: 
587,  127  Pac.  5,  87  Kan.  835. 

Beds  and  shores. 

51.  Adverse  title  to  a  portion  of  an  al- 
ley cannot  be  secured  by  an  abutting  prop- 
erty owner  by  merely  piling  lumber  over  the 
line  for  his  own  convenience,  without  giving 
notice  of  any  adverse  claim  or  title.  Weber 
v.  Detroit,  36:  1056,  123  N.  W,  540,  159 
Mich.   14.  (Annotated) 

52.  'The  mere  continued  enjoyment  by  a 
riparian  owner  of  rights  of  access  between 
his  upland  and  navigable  water  will  not 
ripen  by  laches  or  limitation  into  title  to 
the  soil,  as  against  a  municipality  holding 
the  bed  and  shores  of  the  water  in  trust  for 
the  public.  Mobile  Transp.  Co.  v.  Mobile, 
13:  352,  44  So.  976,  153  Ala.  409. 

By  pnblic. 

Presumption  of  acquisition  of  title  by  pub- 
lic, see  Evidence,  630. 

Sufficiency  of  evidence  of  title  of  public,  see 
Evidence,  2193. 

See   also   infra,   57. 

53.  The  commonwealth  may  obtain  title 
to  a  pond  by  the  assertion  and  maintenance 
■of  adverse  possession  for  the  statutory  pe- 
JDigest   1-52  I<.R.A.(N.S.) 


riod.     Malone  ex  rel.  Harbor  &  Land  Comrs. 
v.  Ellis,  15:  1120,  84  N.  E.  430,  198  Mass.  91. 

(Annotated) 

54.  Failure  to  record  a  lease,  by  the  com- 
monwealth, of  a  pond  the  title  to  which  is 
in  private  ownership,  under  which  the  les- 
sees take  and  maintain  possession,  will  not 
prevent  the  acquisition  of  an  adverse  title 
by  the  public.  Malone  ex  rel.  Harbor  & 
Land  Comrs.  v.  Ellis,  15:  1120,  84  N.  E. 
430,  198  Mass.  91. 

55.  Want  of  notice  by  the  true  owner  of 
a  pond  of  possession  by  lessees  of  the 
commonwealth  will  not  prevent  the  acqui- 
sition of  an  adverse  title  thereto.  Malone 
ex  rel.  Harbor  &  Land  Comrs.  v.  Ellis,  15: 
1 120,  84  N.  E.  430,  198  Mass.  91. 

i.  Color  of  title. 

(See   also    same   heading   in   Digest   L.R.A. 
1-10.) 

Admissibility    in    evidence   of   deed    as,    see 

Evidence,  788. 
Deed  between  trustees  as,  see  Trusts,  117. 

56.  For  color  of  title  to  be  the  basis  of 
prescription,  the  instrument  under  which 
it  is  asserted  must  purport  to  describe  the 
land  in  controversy.  Napier  v.  Little,  38: 
91,  73  S.  E.  3,  137  Ga.  242. 

57.  That  the  public  authorities  have  no 
statutory  right  to  lease  ponds  which  are  in 
private  ownership  will  not  prevent  a  lease 
by  them  from  forming  the  basis  of  a  pre- 
scriptive title  in  the  public.  IVIalone  ex  rel. 
Harbor  &  Land  Comrs.  v.  Ellis,  15:  1120, 
84  N.  E.  430,  198  Mass.  91. 

58.  A  mere  naked  color  of  title,  derived 
through  a  void  foreclosure,  does  not  draw 
to  it  even  the  constructive  possession  of  the 
property,  and  therefore  does  not  operate  to 
vest  any  estate  or  interest  in  the  property, 
and  cannot  confer  any  such  estate  or  inter- 
est by  mere  lapse  of  time.  Bull  v.  Beiseker, 
14:  514,  113  N.  W.  870,  16  N.  D.  290. 

59.  In  an  action  to  recover  possession  of 
land,  wherein  the  defendant  relied  upon  the 
prescriptive  title  acquired  by  adverse  pos- 
session, by  himself  and  those  under  whom 
he  claimed,  for  seven  years  under  color  o 
title,  and  introduced  in  evidence  a  deed 
whereby  title  to  the  land  was  conveyed  to 
a  partnership,  and  a  writing  from  one  mem- 
ber thereof,  conveying  or  mortgaging  the 
land  to  another  to  secure  the  payment  of 
money  borrowed  by  the  grantor,  and  to  in- 
demnify the  grantee  against  loss  by  his 
indorsement  of  notes,  in  which  writing  it 
was  provided  that,  if  the  grantor  failed  to 
pay  such  debts  within  a  specified  time,  the 
grantee  should  have  the  right  to  sell  and 
from  the  proceeds  pay  the  debts,  and  there- 
after the  other  member  of  the  partnership 
conveyed  to  the  same  grantee  under  whom 
defendant  claimed, — even  if  the  grantee  was 
estop.ped  from  claiming  such  land  under  the 
last-named  deed  against  the  member  of  the 
partnership  executing  the  mortgage  or  se- 
curity deed,  such  estoppel  would  not  pre- 
vent the  grantee  from  acquiring,  under  the 


ADVERSE  POSSESSION,  I.  j,  k. 


37 


other  conveyance  to  him,  as  against  the 
plaintiff,  who  did  not  liold  under  sucli  part- 
nersliip,  or  any  member  thereof,  a  good 
prescriptive  title  by  seven  years'  adverse 
possession.  Tarver  v.  Deppen,  24:  1161, 
65  S.  E.  177,  132  Ga.  798. 

60.  Heirs  of  one  having  a  deed  to  real 
estate  which  constituted  color  of  title,  un- 
der which  neither  the  ancestor  nor  anyone 
on  his  behalf  took  possession,  cannot,  aft- 
er the  lapse  of  a  number  of  years  after  the 
ancestor's  death,  and  the  granting  of  the 
property  to  a  stranger,  enter  and  gain  title 
by  adverse  possession,  relying  on  the  color 
of  title  of  the  ancestor  where,  by  statute, 
color  of  title  is  necessary  to  secvire  title 
by  adverse  possession.  Barrett  v.  Brewer, 
42:  403,  69  S.  E.  614,  153  N.  C.  547. 

(Annotated) 
Qnitclaim  deed. 
See   also  supra,   32;    infra,   69. 

61.  A  quitclaim  deed  for  land  is  good 
color  of  title  on  which  to  base  adversary 
possession  under  the  statute  of  limitations. 
Lloyd  V.  Mills,  32:  702,  69  S.  E.  1094,  68 
W.  Va.  241. 

62.  A  quitclaim  deed  which  purports  to 
convey  the  entire  interest  in  a  parcel  of 
land  is  good  color  of  title  upon  which  to 
found  a  title  by  adverse  possession.  Water- 
man Hall  v.  Waterman,  4:  776,  77  N.  E.  142. 
220  111.  569.  (Annotated) 
Void   or   unauthorized   conveyance. 

63.  A  deed  by  a  married  woman,  her 
husband  not  joining  therein,  which  is  thei-e- 
fore  void,  purporting  to  convey  her  sole 
and  separate  estate  in  land,  is  nevertheless 
color  of  title,  by  which,  together  with  ad- 
verse possession  thereunder  for  ten  years 
and  payment  of  taxes,  the  grantee  may  ac- 
quire absolute  title,  working  a  disseisin  of 
her  estate  in  the  land.  Calvert  v.  ^lurphy, 
52:534,  81  S.  E.  403,  73  W.  Va.  731. 
Tax  sale  and  deed. 

See  also  infra,  84. 

64.  One  obtaining  a  conveyance  from  the 
state  under  an  unconstitutional  statute  pro- 
viding for  the  disposal  of  land  upon  which 
the  taxes  are  delinquent  by  a  so-called  re- 
demption has  sufficient  color  of  title  to  per- 
fect a  title  by  adverse  possession  under 
the  statute  of  limitations.  Bradbury  v. 
Dumond,  11:  772,  96  S.  W.  390,  80  Ark.  82. 

(Annotated) 

65.  The  failure  to  record  a  sheriff's  re- 
ceipt for  the  amount  bid  for  land  sold  for 
taxes,  as  required  by  statute,  goes  to  in- 
validate the  tax  deed,  but  does  not  affect 
the  question  of  color  of  title.  Greenleaf  v. 
Bartlett,  14:  660,  60  S.  E.  419,  146  N.  C. 
495. 

66.  A  slieriflF's  deed  of  land  sold  for  taxes 
constitutes  color  of  title  upon  which  to  base 
adverse  possession  barring  claimants  under 
the  former  owner,  although  the  deed  is  in- 
valid because  of  the  violation  of  the  statu- 
tory duty  of  the  sheriff  to  bid  it  in  for  the 
county,  no  person  being  willing  to  pay  the 
tax  for  some  portion  less  than  the  entire 
tract.  Greenleaf  v.  Bartlett,  14:  660,  60  S.  j 
E.  419,  146  N.  C.  495. 

Digest  1-52  Ii.R.A.(N.S.) 


j.  Claim;  Jiostilittf. 

(See   also   same    heading   in    Digest    L.R.A. 
1-10.) 

See  also  supra,  45,  46. 

67.  One  who  enters  into  possession  of  his 
father's  land  by  permission  of  the  latter 
cannot  claim  title  by  adverse  possession  or 
presumption  of  grant,  unless  he  has  given 
the  owner  unequivocal  notice  that  he  holds 
adversely.  McCutchen  v.  McCutchen,  12: 
1140,  57  S.  E.  678,  77  S.  C.  129. 

(Annotated) 

68.  When  one  is  shown  to  have  taken 
possession  of  land  as  agent  of  another,  his 
subsequent  holding  will  be  regarded  as  per- 
missive in  the  absence  of  proof  to  the  con- 
trary. McCreary  v.  Coggeshall,  7:  433,  53 
S.  E.  978,  74  S.  C.  42. 

69.  Mere  possession  under  a  deed  which 
includes  a  strip  belonging  to  a  stranger  for  a 
right  of  way,  but  which  the  grantor  had  a 
right  to  fence  in,  is  not  sufficient  to  ripen 
into  an  adverse  title,  since  it  is  consistent 
with  the  title  of  the  true  owner.  Pritch- 
ard  v.  Lewis,  i:  565,  104  N.  W.  989,  125  Wis. 
604.  (Annotated) 

70.  No  title  can  be  secured  against  the 
true  owner  by  merely  squatting  on  real  es- 
tate without  notice  to  the  true  owner,  al- 
though the  squatter  makes  pretense  of  hold- 
ing adversely.  Jasperson  v.  Scharnikow,  15: 
1 178,  150  Fed.  571,  80  C.  C.  A.  373. 

(Annotated) 

71.  One  who  steals  personal  property 
and  conceals  his  possession  of  it  cannot, 
while  the  concealment  continues,  acquire 
title  by  lapse  of  time.  Lightfoot  v.  Davis, 
29:  119,  91  N.  E.  582,   198  N.  Y.  261. 

fc.  Extent  and  Icind  of  possession. 

(See   also   same    heading   in   Digest   L.R.A. 
1-10.) 

72.  Title  by  adverse  possession  is  not 
established  where  the  proof  does  not  show 
actual,  exclusive,  and  continuous  posses- 
sion under  claim  of  ownership  for  the  full 
statutory  period.  Butler  v.  Smith,  28:  436, 
120  N.  W.  1106,  84  Neb.  78. 

73.  Actual  possession  in  drilling  and 
producing  oil  and  gas  by  a  lessee  of  land 
under  the  usual  lease  for  production  of  oil 
and  gas  is  actual  possession  of  the  land  by 
the  lessor  for  adversary  possession.  Lloyd 
v.  Mills,  32:  702,  69  S.  E.  1094,  68  W.  Va. 
241. 

74.  The  right  to  use  property  devoted  to 
burial  purposes  is  not  barred  by  the  stat- 
ute of  limitations  so  long  as  the  lot  is  kept 
inclosed,  or  the  monuments  remain  and  the 
grounds  are  cared  for.  Hines  v.  State,  42: 
1 138,   149  S.   W.   1058,   126   Tenn.   1. 

(Annotated) 

75.  An  adverse  holding  of  land  on  the 
shore  of  a  river  does  not  attach  to  itself 
the  accretion  as  it  forms  on  the  river  bot- 
tom, so  as  to  take  precedence  of  a  grant 
by    the    state    of   the    newly    formed    land. 


ADVERSE  POSSESSION,«IL 


Carson  v.  Turk,  42:  584,  143  S.  W.  393,  146 
Ky.  733. 

76.  Where  titles  is  founded  on  adverse 
possession,  the  title  will  be  limited  to  that 
area  of  which  actual  possession  has  boon 
enjoyed,  and,  as  a  general  rule,  constructive 
possession  of  a  wider  area  will  only  be  in- 
ferred from  actual  possession  of  the  limited 
area,  if  the  inference  of  sucli  wider  posses- 
sion is  necessary  to  give  effect  to  contract- 
ual obligations,  or  to  preserve  the  good 
faith  and  honesty  of  a  bargain.  Glyn  v. 
Howell,  3  B.  R.  C.  405,  [1909]  1  Ch.  666. 
Also  reported  in  78  L.  J.  Ch.  N.  S.  391,  100 
L.  T.  N.  S.  324,  53  Sol.  Jo.  269. 

77.  The  working  out  of  coal  from  a 
limited  area,  and  the  retention  of  posses- 
sion of  the  worked-out  cavity,  is  not  a  con- 
structive possession  of  the  whole  area  of 
the  mine  horizontally  and  vertically  com- 
prised in  the  tract  of  which  the  worked  out 
area  forms  a  part,  upon  which  a  claim  of 
adverse  possession  of  the  whole  mine  may 
be  based.  Glyn  v.  Howell,  3  B.  R.  C.  405, 
[1909]  1  Ch.  666.  Also  Reported  in  78 
L.  J.  Ch.  N.  S.  391,  100  L.  T.  N.  S.  324,  53 
Sol.  Jo.  269.  (Annotated) 
Of   surface. 

78.  A  disseisor  in  possession  of  the 
surface  of  land  may  acquire  a  title  by  ad- 
verse possession,  not  to  the  surface  only, 
but  also  usque  ad  caelum.  Midland  R.  Co. 
V.  Wright,  4  B.  R.  C.  230,  [1901]  1  Ch. 
738.  Also  Reported  in  70  L.  J.  Ch.  N.  S. 
411,  49  Week.  Rep.  474,  84  L.  T.  N.  S.  225, 
17  Times  L.  R.  261.  (Annotated) 

II.  Effect;  time  required. 

(See  also   same   heading   in  Digest   L.R.A. 
1-70.J 

Curtesy  in  land  of  which  wife  was  disseised 
by  adverse  possession,  see  Curtesy,  5. 

79.  Adverse  possession  and  the  operation 
of  the  statute  of  limitations  will  create  a 
title  which  can  be  used  offensively  or  de- 
fensively. Freeman  v.  Funk,  46:  487,  117 
Pac.    1024,    85    Kan.    473.  (Annotated) 

80.  Exclusive  possession  by  the  owner  of 
the  record  title  for  three  years  after  the 
execution  of  a  tax  deed  for  the  property  ex- 
tinguishes the  tax  title.  Kathan  v.  Com- 
stock,  28:  201,  122  N.  W.  1044,  140  Wis.  427. 

81.  That  a  co-life-tenant  receives  in 
partition  an  undue  portion  of  a  parcel  of 
land  omitted  from  the  title  deed  does  not 
render  the  partition  unequal  so  as  not  to 
be  binding  on  an  unborn  remainderman,  if 
the  grantees  had  established  title  to  the 
property  by  adverse  possession.  Acord  v. 
Beaty,  41:  400,  148  S.  W.  901,  244  Mo.  126. 

82.  Title  acquired  up  to  a  division  fence 
by  adverse  possession  and  acquiescence  for 
the  statutory  period  is  not  disturbed  by  a 
survey  fixing  the  true  boundary  elsewhere, 
which  was  made  under  a  statute  providing 
that  the  boundary  established  by  the  survey 
shall  be  considered  as  permanently  estab- 
lished and  shall  not  thereafter  be  changed, 
since  a  statutory  survey  cannot  change  title 
Digest  1-52  I..R.A.(N.S.) 


to  land.     Edwards  v.  Fleming,  33:  923,  112 
Pac.  836,  83  Kan.  653. 

83.  Condemnation  proceedings,  followed 
by  unquestioned  possession  for  more  than 
fifty  years  with  improvements  for  railroad 
purposes,  are  binding  on  the  owner  of  the 
land  taken,  and  those  claiming  under  him. 
Illinois  C.  R.  Co.  v.  Hasenwinkle,  15:  129,  83 
N.  E.  815,  232  111.  224. 

84.  Actual  possession  of  land  for  a  period 
of  four  years  under  a  tax  deed  regular  on 
its  face,  although  based  upon  a  void  assess- 
ment, will  bar  a  suit  in  ejectment  for  the 
possession  thereof,  under  Florida  Gen.  Stat. 
1906,  §  591,  providing  that  no  action  for 
the  recovery  of  land  sold  under  a  tax  sale 
can  be  brought  by  the  former  owner  or  those 
claiming  under  or  through  him,  unless  com- 
menced within  four  years  after  the  pur- 
chaser goes  into  possession  of  the  land  so 
bought.  Florida  Finance  Co.  v.  Sheffield, 
23:  1 102,  48  So.  42,  56  Fla.  285. 

(Annotated) 

85.  One  whose  possession,  for  the  statu- 
tory period,  of  an  upper  story  in  a  build- 
ing, reached  by  an  inclosed  stairway  hav- 
ing a  landing  at  the  foot  large  enough  to 
swing  a  street  door,  of  which  he  had  the 
only  key,  and  which  he  locked  at  night,  has 
ripened  into  a  possessory  title,  acquires 
title  to  the  room,  the  stairway,  and  the 
landing,  but  without  any  right  to  support 
from  the  subjacent  part  of  the  building; 
and  cannot  therefore  prevent  the  owner 
from  demolishing  those  parts  of  the  build- 
ings which  do  not  rest  upon  soil  to  which 
he  has  acquired  a  possessory  title.  Iredale 
V.  Loudon,  3  B.  R.  C.  688,  40  Can.  S.  C. 
313. 

86.  Adverse  possession  of  the  surface  of 
land  vertically  over  a  railway  tunnel  will 
give  a  complete  title  to  the  property,  sub- 
ject to  the  right  of  the  railway  company  to 
the  tunnel  and  to  so  much  of  the  underly- 
ing and  superincumbent  strata  as  is  neces- 
sary for  its  due  and  proper  enjoyment  as 
and  for  a  tunnel.  Midland  R.  Co.  v. 
Wright,  4  B.  R.  C.  230,  [1901]  1  Ch.  738. 
Also  Reported  in  70  L.  J.  Ch.  N.  S.  411,  49 
Week.  Rep.  474,  84  L.  T.  N.  S.  225,  17 
Times  L.  R.  261. 

Continuity  and  interruptions. 

87.  Mere  failure  to  have  a  tenant  on 
land  for  one  year  will  not  break  the  con- 
tinuity of  a  possession  held  adversely  to 
the  true  owner.  Bradbury  v.  Dumond,  n: 
772,  96  S.  W.  390,  80  Ark.  82. 

88.  The  continuity  of  an  adverse  pos- 
session of  real  estate  is  not  broken  by  a 
deed  to  a  third  party  not  the  owner,  exe- 
cuted by  the  person  in  possession,  who  con- 
tinues to  remain  in  possession  after  the 
execution  of  his  deed.  Crawford  v.  Viking 
Refrigerator  &  Mfg.  Co.  35:  498,  114  Pac. 
240,  84  Kan.  203. 

Tacking. 

See  also  supra,  60. 

89.  To  warrant  the  tacking  of  different 
possessions  of  real  estate  to  make  out  a 
title  by  adverse  possession,  they  need  not 
have  teen  transferred  from  one  possessor 
to  another  by  writing.    Crawford  v.  Viking 


ADVERSE  rOSSESSION,  III.— AFFECTIONS. 


39 


Refrigerator   &  Mfg.   Co.   35:  498,   114   Pac. 
240,  84  Kan.   203.  (Annotated) 

90.  After  the  statute  of  limitations  be- 
gins to  run  in  favor  of  one  who  has  secured 
personal  property  by  theft,  eacli  subsequent 
purcliaser  of  it  may  tack  on  the  adverse 
holdings  of  persons  claiming  under  a  title 
80  secured.  Shelby  v.  Slianer,  34:  621,  115 
Pac.  785,  28  Okla.  605. 

///.  Who  may  hold  adversely. 

(See   also   same   heading   in   Digest   L.R.A. 

1-70.) 

91.  The  trustees  of  a  religious  society  in 
possession  of  land  under  a  deed  as  color  of 
title,  acquire,  as  against  the  original  gran- 
tors, by  adverse  possession  for  the  statutory 
period,  such  title  as  the  deed  purports  to 
convey,  though  it  be  that  of  a  married  wom- 
an, and  void  for  want  of  privy  examination. 
Deepwater  R.  Co.  v.  Honaker,  27:  388,  66 
S.  E.  104,  66  W.  Va.  136.  (Annotated) 


ADVERTISING. 


For  divorce  business  as  ground  of  dis- 
barment, see  Attorneys,  22,  26. 

Grant  of  exclusive  right  of  advertising  on 
box  cars  of  railroad  company,  see  Cab- 
KiEKS,  1015;  Conflict  of  Laws,  11; 
Contracts,  429;    Corporations,  53. 

Contract  to  furnish  proprietors  of  news- 
papers transjX)rtation  in  payment  for 
advertising,   see    Carriers,    1066. 

Power  of  state  to  forbid  publication  of  ad- 
vertisements of  liquors  kept  for  sale 
in  other  states,  see  Commerce,  11; 
Statutes,  92. 

Application  to  liquors  out  of  state  of  im- 
position of  penalty  upon  publisher  of 
newspaper  containing  advertisement  of 
liquors,  see  Intoxicating  Liquors,  11. 

Requiring  employers  advertising  for  help 
during  strike  to  mention  existence  of 
strike,  see  Constitutional  Law,  124, 
298,  416;  Statutes,  26. 

Power  of  municipality  to  grant  use  of  high- 
way for  purpose  of,  see  Constitu- 
tional Law,  253. 

Forbidding  advertisement  by  physician  to 
cure  disease  of  sexual  organs,  see  Con- 
stitutional Law,  279,  432. 

Ordinance  regulating  medical  advertise- 
ments, see  Municipal  Corporations, 
217. 

Obscenity  of  medical  advertisements,  see 
Obscenity. 

Statute  regulating  erection  of  structure  for, 
see  Constitutional  Law,  320. 

Publication  of  photograph  for  purpose  of, 
see  Constitutional  Law,  354,  387, 
784;  Evidence,  2013;  Libel  and 
Slander,  17;  Privacy,  2-5. 

Use  of  national  flag  for,  see  Constitu- 
tional Law,  251,  252,  523,  524,  675. 

limiting  height  of  advertising  si^n,  see 
Constitutional  Law,  659. 

Digest  1-52  L.R.A.(N.S.) 


For  letting  public  contract,  see  Contracts, 
VIL   b. 

Right  to  maintain  advertisements  on  ex- 
terior of  stages  or  carriages,  see  Cor- 
PORA'noNS,  34. 

Power  of  corporate  agent  to  contract  for, 
see  Corporations,  134. 

Damages  for  revocation  of  contract  to  per- 
mit advertisement  to  be  run  in  period- 
ical, see  Damages,  109. 

Lease  by  tenant  of  roof  for  purpose  of,  see 
Estoppel,  50. 

Presumption  of  knowledge  from  advertise- 
ment in  newspaper,  see  Evidence,  193. 

Unauthorized  use  of  name  for  advertising 
purposes,  see  Evidence,  1731-1733. 

Injunction  against  placing  advertisements 
in  street  cars,  see  Injunction,  13. 

Right  of  lessee  to  use  walls  of  building  for, 
see  Landlord  and  Tenant,  100,  101. 

Right  of  tenant  to  lease  wall  of  building 
for,  see  Landlord  and  Tenant,  95,  96. 

Right  of  lessee  to  lease  space  on  roof  to 
strangers  for  purpose  of,  see  Landlord 
AND  Tenant,  99. 

Forbidding  use  of  advertising  wagons  on 
streets,  see  Municipal  Corporations, 
48,  106. 

Authority  of  traveling  salesman  to  make 
advertising  contract,  see  Principal 
AND  Agent,  41. 

Of  prize  contest,  see  Prize  Contest,  2. 

Recovery  for  publication  of  advertisements 
in  Sunday  paper,  see  Sunday,  18. 

Publication  of  signature  in  connection  with 
testimonial,  see  Trial,  335. 

As  to  bill  boards,  see  Bill  Boards. 


ADVICE  OF  COUNSEL. 

Right  of  one  acting  under,  to  rescind  con- 
tract for  mistake,  see  Contracts,  750. 

Effect  on  liability  for  voting  when  disquali- 
fied, see  Elections,  60. 

Effect  of,  on  liability  for  malicious  prose- 
cution, see  Malicious  Prosecution, 
10-12. 

Actionability  of  advice  by  attorney  to 
client,  see  Libel  and  Slander,  104. 


AERATED    WATER. 

Question  for  jury  as  to  negligence  of  bottler 
of,  see  Trial,  541. 


AFFECTIONS. 


Alienation  of,  see  Husband  and  Wife,  158- 
163,  181,  185-194;   Witnesses,  88. 


40 


AFFIANCED— AGE. 


AFFIANCED. 

Nondelivery  of  telegram  in  time  to  enable 
sendee  to  attend  funeral  of,  see  Dam- 
ages, G59. 

Insurable  interest  of,  see  Instjrance,  67, 
80. 

Interest  of,  in  benefit  certificate,  see  In- 
surance, 849. 

Larceny  from,  see  Larceny,  37. 

Seduction  of,  see  Seduction,  3. 


AFFIDAVIT. 


Acknowledgment  to,  see  AcKNOWLinMJMENT, 
1. 

Necessity  of  incorporating,  in  bill  of  excep- 
tions, see  Appeal  and  Erkor,  239, 

On  appeal,  see  Appeal  and  Error,  IV.  e. 

In  attachment  suit,  see  Appeal  and  Error, 
693 ;    Attachment,   24. 

Questioning  on  appeal  rule  as  to  necessity 
of  afSdavit  of  defense,  see  Appeal  and 
Error,  811. 

Sufficiency  of  affidavit  of  defense,  see 
Pleading,  480,  506. 

Amendment  of  affidavit  charging  violation 
of  order  of  state  corporation  commis- 
sion, see  Appeal  and  Error,  1034. 

Sufficiency  of  affidavit  of  consideration  an- 
nexed to  chattel  mortgage,  see  Chattel 
Mortgage,  5,  6. 

Renewal  of  affidavit  for  chattel  mortgage, 
see  Chattel  Mortgage,  49. 

Filing  of,  on  foreclosure  of  chattel  mort- 
gage, see  Chattel  Mortgage,  58. 

Contempt  by  statements  in  affidavit  for 
change  of  judges,  see  Contempt,  21. 

In  contempt  proceeding,  see  Contempt,  77. 

For  continuance,  see  Continuance  and  Ad- 
journment, III. 

From  voter  at  primary  election  that  ballot 
called  for  represents  party  with  which 
•    he  is  affiliated,  see  Elections,  20. 

Admissibility  in  evidence,  see  Evidence, 
781-784. 

Necessity  of,  to  make  evidence  admissible, 
see  Evidence,  2452. 

Sufficiency  of  affidavit  to  support  prosecu- 
tion, see  Indictment,  etc.,  3,  34. 

In  injunction  suit,  see  Injunction,  429. 

Of  absence  of  collusion,  fear,  or  restraint 
in  divorce  proceedings;  effect  of  lack 
of,  see  Judgment,  144. 

For  publication,  see  Judgment,  332;  Writ 
and  Process,  66-72. 

Of  merits,  see  Judgment,  385-389. 

Affidavit  of  ownership  where  property  of 
third  person  is  levied  on,  while  in  pos- 
session of  execution  debtor,  see  Levy 
AND  Seizure,  26,  27. 

Of  juror  to  impeach  verdict,  see  New 
Trial,  V.  d. 

On  motion  for  new  trial,  see  New  Trial, 
V.  c,  d. 

Assigning  perjury  or  subornation  of  per- 
jury upon  affidavit  to  secure  change 
of  judge  for  prejudice,  see  Perjury, 
13. 

Dig«st  1-52  Ii.B.A.(N.S.) 


Verification  of  pleading,  see  Pleading,  I.  b. 
Trial  of  collateral  issue  on,  see  Trial,  2. 
For  change  of  venue,  see  Venue,  29. 
Of     service     of     process,     see     Writ     and 
Process,  III. 

1.  An  amendment  to  an  aflidavit 
charging  a  railroad  company  with  having 
violated  certain  orders  of  the  state  corpo- 
ration commission,  so  as  to  make  the 
original  affidavit  charge  the  violation  of  a 
difi'erent  order,  must  be  verified.  St. 
Louis  &  S.  F.  R.  Co.  v.  State,  30:  137,  107 
Pac.   929,  26   Okla.   62, 


AFFINITY. 


Disqualification    of    judge    because    of,    see 
Judges,  10-12. 


AFFRAY. 

Taking  life  in  self-defense  in  case  of,   see 
Homicide,  III.  b. 


AFTFR-ACQUIRED   PROPERTY. 

Mortgage  on,  see  Chattel  Mortgage,  11- 
17;  Mortgage,  17,  20. 

Estoppel  to  claim,  see  Estoppel,  36,  37. 

Garnishment  of  future  earnings,  see 
Garnishment,  25,  26. 

Enforcement  of  contract  to  convey,  see  Spe- 
cific Performance,  95. 

Passing  under  will,  see  Wills,  198, 


AFTER-BORN    CHIIJ)R£N. 

Rights  under  will,  see  Conflict  of  Laws, 
130;  Perpetuities,  13,  14;  Wills,  154, 
155,  183,  249. 

Power  of  legislature  to  cut  off  rights  of,  fcee 

CoiNSTITUTIONAL    Law,    61. 

Jurisdiction  of,  see  Courts,  197. 
Evidence  of   testator's   statements   to   show 

intent    to     disinherit,     see     Evidence, 

1441. 
Effect  of  judgment  on,  see  Judgment,  219- 

222. 
Unborn  child,  as  a  life  in  being  within  rule 

against   perpetuity,    see    Perpetuities, 

14. 
Right  to  take  under  grant  for  support  of 

wife  and  children,  see  Trusts,  130. 
Appointment  of  trustee  for,  see  Trusts,  74; 


AGE. 

Of  consent,  see  Age  of  Consent, 
Evidence   on   question   of,   see   Appeal   and 
Error,  1166;   Evidence,  1379,  1581. 


AGENCY— AGRICULTURAL  SOCIETIES. 


41 


Determination  of  age  by  inspection  in  court, 
see  Evidence,  880. 

Sufficiency  of  evidence  as  to,  see  Evidence, 
2236,  2237. 

Estoppel  by  representations  as  to,  see  Es- 
toppel, 173-178. 

Fraudulent  representation  by  infant  as  to, 
see  Infants,  92,  93. 

Misrepresentation  as  to  age  of  infant  em- 
ployee, see  Master  am)  Sekvant,  154- 
156,   173-176. 

Misstatement  of  age  in  insurance  applica- 
tion, see  Insurance,  151,  322-324,  371, 
372,  546;   Trial,  648. 

Waiver  of  by-law  of  benefit  society  as  to, 
see  Insurance,  536. 

Illegal  sale  of  liquor  to  minor  in  ignorance 
of  his  age,  see  Intoxicating  Liquors, 
155. 


#♦» 


not  due  to  his  negligence.     Nutt  v.  David- 
son, 44:  1 1 70,  131  Pac.  390,  54  Colo.  586. 

3.  A  bailee  of  cattle  for  hire,  which,  by 
the  owner's  direction,  are  placed  in  a  cer- 
tain pasture  upon  the  bailee's  representa- 
tion that  the  place  is  suitable,  must  exer- 
cise ordinary  care  to  prevent  their  injury 
by  changing  conditions  rendering  the  place 
improper,  or  to  inform  the  owner  of  the 
change.  Nutt  v.  Davidson,  44:  1170,  131 
Pac.  390,  54  Colo,  586. 


AGENCY. 

See  Pbincipal  and  Agent. 
♦-•-• 


AGE  OF  CONSENT. 

Marriage   of   infant   under,   see   Marriage, 

14-16,  29,  43-45. 
Rape  of  infant  under,  see  Rape,  5-7. 


AGGRAVATION. 


Of  damages,  see  Evidence,  XI.  w. 
Of   injury,   see  Negligence,   214. 


AGREED   CASE. 


1.  An  agreement  of  facts  made  for  the 
purpose  of  one  trial  will  not  preclude  fur- 
ther or  different  proofs  upon  another  trial. 
Illinois  C.  R.  Co.  v.  Hart,  52:  1117,  176 
Fed.  245,  100  C.  C.  A.  49. 

2.  A  submission  of  the  question  whether 
or  not  a  municipal  corporation  has  the  pow- 
er to  enforce  its  ordinances  in  respect  to 
the  construction  of  buildings  by  a  school 
district  organized  within  its  territory,  to 
the  same  extent  that  the  ordinances  would 
be  enforceable  against,  and  in  respect  to, 
any  other  building  being  built  by  an  in- 
dividual, gives  the  court  no  authority  to 
determine  the  applicability  of  a  provision 
of  the  ordinances  respecting  fire  escapes. 
Pasadena  City  School  Dist.  v,  Pasadena, 
47:  892,  134  Pac.  985,  166  Cal.  7. 


AGREEMENTS. 

Agreements,  generally,  see  Contracts. 


AGISTERS. 


Priority  as  between  lien  of  agister  and  lien 
of  prior  chattel  mortgage,  see  Chattel 
Mortgage,  46. 

1.  Under  a  statute  giving  every  per- 
son who,  while  lawfully  in  possession  of  an 
article  of  personal  property,  renders  any 
service  to  the  owner  thereof,  a  special  lien, 
dependent  on  possession,  for  his  compensa- 
tion due  from  the  owner  for  such  service, 
and  expressly  giving  persons  pasturing  live 
stock  of  any  kind  a  lien  for  their  compensa- 
tion in  caring  for,  boarding,  feeding,  or 
pasturing  such  live  stock,  a  herder  era- 
ployed  by  the  month  and  working  under 
the  direction  and  control  of  an  owner  in 
taking  care  of  sheep  being  grazed  on  the 
public  domain  is  not  entitled  to  a  lien  on 
the  sheep  for  his  wages.  Mendilie  v.  Snell, 
42:  731,   127  Pac.   550,  22  Idaho,  663. 

(Annotated) 

2.  A  bailee  of  cattle  to  be  cared  for  for 
hire  must,  in  order  to  absolve  himself  from 
liability  in  case  an  excessive  number  die 
in  his  possession,  show  that  the  loss  was 
Digest  1-52  KR.A.(N.S.) 


AGRICULTURAL  COLLEGE. 

See  State  Institutions,  4,  7. 


AGRICULTURAL  SOCIETIES. 

1.  The  directors  of  an  agricultural  soci- 
ety may  authorize  a  baseball  game  upon  the 
grounds  during  a  fair,  where  the  statute 
provides  that  any  society  filing  affidavits 
showing  what  sum  it  has  paid  out  for  pre- 
miums during  a  year,  not  including  money 
paid  to  secure  games,  shall  receive  a  sum 
from  the  state  treasury.  Williams  v.  Dean, 
11:  410,  111  N.  W.  931,  134  Iowa,  216. 

2.  The  officers  and  directors  of  an  agri- 
cultural association  are  not  liable,  merely 
because  of  their  office,  for  injuries  to  a 
patron  of  a  fair,  injured  through  absence 
of  a  screen  to  shield  spectators  in  a  grand 
stand  from  foul  balls  from  a  baseball  game 
allowed  to  be  played  on  the  grounds.  Wil- 
liams v.  Dean,  11:  410,  111  N.  W.  931,  134 
Iowa,  216. 


42 


AGRICULTURE— ALIENS,  I. 


AGRICULTURE. 

Constitutionality  of  statute  granting  pow- 
ers to  board  of,  see  Constitutio.xal 
Law,  727. 

Lien  on  crops  for  wages  of  farm  laborers, 
see  Liens,  10. 

Agricultural  education,  see  Agbicultubal 
College;  Schools,  la. 


AID  BONDS. 

See  Bonds,  78,  80-83,  103,  104. 

♦♦-♦ 

AIDERS  AND   ABETTORS. 

See  Cbiminal  Law,  I.  e;  Homicide,  47-49. 


AIR. 

Easement     of,     see     Easements,     44-47; 

Pleading,  148. 
Condemnation  of  riparian  owner's  right  to, 

see  Eminent  Domain,  29. 
Compensation    for    interference    with,    see 

Eminent  Domain,  192. 


AIR   BRAKE. 

Patent  of,  see  Patents,  7. 


ALCOHOL. 


Negligence  of  druggist  in  sale  of  wood 
alcohol,  see  Appeal  and  Ebbob,  1096; 
Deugs  and  Dbuggists,  8;  Evidence, 
1343. 

Forbidding  manufacture  of,  see  Constitu- 
tional Law,  192,  398. 

Injury  to  child  by  explosion  of,  see  Negli- 
gence, 145. 

See  also  Intoxicating  Liquobs. 


^•» 

ALCOHOLISM. 

See  Dbttnkenness. 

♦•» 


ALIBI. 

Prejudicial  error  in  refusal  of  instruction 

as  to,  see  Appeal  and  Ebbob,  1420. 
Evidence  to  overthrow,  see  Evidence,  1888. 
Sufficiency  of  proof  of,  see  Evidence,  2376. 
Digest  1-52  L.R.A.(N.S.) 


ALIENATION. 

Of  homestead,  statute  taking  away  right  of, 
see  Constitutional  Law,  644. 

Restraints  upon,  see  Covenants  and  Con- 
ditions, 33-34. 

Suspension  of  power  of,  see  Pebpetuities. 


ALIENATION  OF  AFFECTIONS. 

Of  wife,  see  Husband  and  Wife,  158-163. 
Of  husband,  see  Husband  and  Wife.  181, 

185-194. 
Of  affianced  wife,  see  Seduction,  3. 


ALIENIST. 


Error   in   excluding   from   court   room,    see 
Appeal  and  Ebror,  1484. 


ALIENS. 

I.  In  general;  immigration;  deporta- 
tion. 
II.  Naturalization,  1,  2. 
III.  Disabilities   and   capacities;    prop- 
erty rights,  3—5. 

Violation  of  alien  contract  labor  law,   see 

Action  ob  Suit,  63;   Evide^nce,   1401, 

2354;  Trial,  779. 
As  to  who  are  citizens,  see  Citizenship. 
Court's  assistance  in  impounding  assets  of, 

see  Conflict  of  Laws,  135. 
Prohibiting  alien   from   engaging  in   liquor 

business,     see     Constitutional     Law, 

202a. 
Equal   protection   and   privileges  as  to,   see 

Constitutional  Law,  II.  a,  2,  b. 
Foreign  consul's  right  to  administer  estate 

of,  see  ExEcuTOBs  and  Administbatobs, 

16. 
Conclusiveness  of  default  judgment  against, 

see  Judgment,  99. 
Discrimination  in  inheritance  tax  on  prop- 
erty devised  to,  see  Taxes,  293. 
Succession   tax   on    property   going   to,   see 

Taxes,  358. 
EflFeet  of  treatv  on  status  of,  see  Treaties, 

4. 

I.  In   general;    immigration;    deporta- 
tion. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  to  bail  pending  execution  of  order 
of  deportation,  see  Bail  and  Recogniz- 
ance, 11,  12. 

Reference  of  case  under  Chinese  Exclusion 
Act,  see  Refbbence,  11. 


ALIENS,  II.— ALLEYS. 


43 


JI.  Naturalization. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Discrimination  by  primary  election  law 
against  naturalized  citizen,  see  Elec- 
tions, 68,  71. 

Right  of  officer  to  retain  naturalization 
fees,  see  Officers,  86. 

1.  An  alien  wife  of  an  alien,  both  of 
whom  aj-e  residing  in  this  country,  is  not 
entitled  to  naturalization.  United  States 
V.  Cohen,  29:  829,  179  Fed.  834,  103  C.  C. 
A.  28.  (Annotated) 

2.  An  alien  person  of  good  moral  char- 
acter, and  who  has  lived  an  honest  and  in- 
dustrious life,  and  is  otherwise  entitled  to 
citizenship,  should  not  be  denied  the  right 
because  he  is  totally  ignorant  of  our  form 
of  government,  our  Constitution,  and  the 
import  of  the  oath  of  allegiance.  State  ex 
rel.  United  States  v.  District  Court,  22:  1041, 
120  N.  W.  898,  107  Minn.  444.      (Annotated) 

III.  Disabilities   and   capacities;   prop- 
erty rights. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Eight  to  take  estate  by  curtesy,  see 
Curtesy,  9,   10. 

Right  to  maintain  action  for  death  of  rela- 
tive, see  Death,  12-19. 

Inheritance  from  alien  cousin,  see  Descent 
AND  Distribution,  11. 

Escheat  of  property  of,  see  Escheat,  3. 

Estoppel  to  recover  property  deeded  to,  see 
Estoppel,  152. 

Disqualification  to  act  as  executor,  see 
Executors  and  Administrators,  9. 

Homestead  rights  in  land,  see  Homestead, 


Purchase  by  or  from. 

3.  One  deeding  laiid  to  an  alien  retains 
no  right,  title,  or  interest  therein,  although 
the  Constitution  provides  that  conveyances 
to  an  alien  shall  be  void.  Abrams  v.  State, 
9:  186,  88  Pac.  327,  45  Wash.  327. 

4.  Land  containing  deposits  of  lime- 
stone, silica,  silicated  rock,  and  clay,  which 
are  valuable  for  the  manufacture  of  cement, 
is  within  the  constitutional  provision  per- 
mitting aliens  to  purchase  lands  containing 
valuable  deposits  of  minerals,  metals,  iron, 
coal,  and  fire  clay.  State  ex  rel.  Atkinson 
v.  Evans,  10:  1163,  89  Pac.  565,  46  Wash. 
219. 

Suits  by  or  against. 

5.  1'he  right  of  an  alien  to  resort  to  the 
courts  of  a  country  to  redress  a  wrong  aris- 
ing at  his  domicil  is  not  affected  by  the 
provisions  of  a  treaty  between  the  countries 
giving  the  citizens  of  each  the  right  to  so- 
journ in  the  other  with  the  same  security 
and  protection  as  natives,  and  binding  each 
country  to  protect  and  defend  the  effects 
belonging  to  subjects  of  the  other  which 
shall  be  wilhin  its  jurisdiction.  Disconto 
Digest  1-52  I<.R.A.(N.S.) 


Gesellschaft   v.    Terlinden,    15:  1045,    106   N. 
W.   821,   127   Wis.   651. 


ALIMONY. 

See  Divorce  and  Separation,  V. 
♦-•-♦ 


ALLEYS. 

Adverse  possession  of,  see  Adverse  Posses- 
sion, 50,  51. 

As  boundary,  see  Boundaries,  13,  14. 

Review  by  court  of  question  of  necessity  of 
closing,  see  Courts,  107. 

Inquiry  by  courts  into  motives  of  municipal 
authority  in  closing,  see  Courts,  142. 

Damages  for  closing  of,  see  Damages,  565, 
576. 

Dedication  of,  see  Dedication,  1. 

Describing  property  sold  as  bounded  by  al- 
ley, as  warranty  that  alley  exists,  see 
Covenants  and  Conditions,  17. 

Presumption  that  reference  in  deed  to  alley 
is  to  public  alley,  see  Deeds,  27. 

Right  of  municipal  corporation  to  construct 
sewers  in,  see  Drains  and  Sewers,  6. 

Reservation  of,  in  deed,  see  Easements,  43. 

Right  to  obstruct,  see  Easements,  76. 

Rope  across  entrance  to,  as  obstruction,  see 
Highways,  214. 

Injury  through  obstruction  of  surface  water 
caused  by  construction  of,  see  Eminent 
Domain,  217;  Evidence,  2010. 

Evidence  of  wantonness  in  leaving  bomb  in, 
see  Evidence,  1527. 

Estoppel  of  owner  of  fee  to  remove  tele- 
phone pole  from,  see  Estoppel,  94. 

Abandonment  of,  see  Highways,  412. 

Meaning  of  word  "alleyway"  in  pleading, 
see  Pleading,  276. 

Right  of  grantee  of  maker  of  plat  to  close 
alley,  see  Vendor  and  Purchaser,  83. 

1.  The  title  to  an  alley  in  a  city  which 
was  erroneously  thought  not  to  exist  is  not 
affected  by  the  fact  that  one  of  the  abutting 
owners  had  signed  a  petition  asking  that 
the  alley  be  "opened,"  and  that  an  ordinance 
had  been  passed  providing  for  the  condem- 
nation of  land  for  that  purpose.  Wallace 
V.  Cable,  42:  587,   127  Pac.  5,  87  Kan.  835. 

2.  The  owner  of  a  leasehold  renewable 
forever,  which  extends  to  the  center  of  a 
private  alley,  may  cut  down  and  remove 
a  telephone  pole  placed  on  his  half  thereof 
without  permission,  in  such  a  manner  as  to 
interfere  with  his  reasonable  use  of  the 
alley,  after  giving  notice  to  its  owner  to 
remove  it,  which  is  not  acted  upon  within 
a  reasonable  time ;  and  its  owner  cannot 
complain  of  incidental  injury  to  the  pole 
and  fixtures  through  its  fall  to  the  ground. 
Maryland  Teleph.  &  Teleg.  Co.  v.  Ruth, 
14:  427,  68  Atl.  358,  106  Md.  644. 

3.  The  construction  and  maintenance 
of  a  cellarway  in  an  alley,  with  a  cover 
projecting   above   the   surface,   will    not   be 


44 


ALLOTMENT— ALTERATION  OF  INSTRUMENTS,  I. 


enjoined  at  the  suit  of  an  adjoining  owner 
in  the  absence  of  evidence  that  it  interferes 
with  the  safe  and  convenient  use  of  the 
alley.  Reynolds  v.  Union  Sav.  Bank, 
49:*i94,  136  N.  W.  529,  155  Iowa,  519, 


ALLOTMENT. 

Of  homestead,  see  Homestead,  V. 


ALLO\VANCE. 


To   widow,   see   Executors   and    Adminis- 
TBATOBS,  116,  117. 


ALLUVION. 

See  Waters,  160-163. 


ALTERATION. 


Of  highway,  see  Highways,  V.  b. 
Revocation  of  will  by,  see  Wills,  46-52. 


ALTERATION  OF  INSTRUMENTS. 

I.  In  general,    1—8. 
tl'  Bills  and  notes,   9—22. 

a.  In  general,  9—13. 

b.  What  alterations  are  material, 

14^22. 

Necessity    of     reacknowledgment     of     deed 

after  alteration,  see  Acknowledgment, 

9,  10. 
Bank's     liability     on     altered     checks,     see 

Banks,  IV.  a,  3,  b,  2. 
Alteration   of  certified   check,  see  Checks, 

34-36. 
Effect    of,    on    jurisdiction    of    equity,    see 

Equity,  89. 
Presumption  and  burden  of  proof  as  to,  see 

Evidence,  169,  601-607. 
Evidence   as   to   time   wlien   alteration   was 

made,  see  Evidence,  1801,  2285,  2286. 
Sufficiency  of   answer  to  raise  question   of, 

see  Pleading,  455. 
Reformation  of  altered  deed,  see  Reforma- 
tion OF  Instruments,  10. 
Question   whether   alteration   was   made   as 

one  for  jury,  see  Trial,  620. 
Instructions  as  to,  see  Trial,  942. 
As  to  forgery,  generally,  see  Forgery. 

/.  In  general. 

(See  also   same  heading   in   Digest   L.R.A. 
1-10.) 

1.  A  "material  alteration"  of  a  written 
instrument  is  an  intentional  act  done  upon 
it,  after  it  has  been  fully  executed,  by  one 
Digest  1-52  L.R.A.(N.S.) 


of  the  parties  thereto,  without  the  consent 
of  the  other,  which  changes  the  legal  effect 
of  the  instrument  in  any  respect.  O.  N. 
Bull  Remedy  Co.  v.  Clark,  32:  519,  124  N. 
W.  20,  109  Minn.  396. 

2.  The  cross  marking  of  a  material 
provision  in  a  written  instrument,  after 
its  execution,  by  one  of  the  parties  thereto, 
without  the  consent  of  the  other,  with  tlie 
intention  of  canceling  or  erasing  it,  con- 
stitutes a  material  alteration  of  the  instru- 
ment. 0.  N.  Bull  Remedy  Co.  v.  Clark, 
32:  519,   124  N.  W.  20,   109  Minn.   396. 

(Annotated) 

3.  An  heir  of  one  to  whom  runs  an  agree- 
ment for  the  payment  of  money,  to  whom 
it  is  assigned  after  the  death  of  the  ob- 
ligee, and  after  it  is  overdue,  takes  sub- 
ject to  the  defense  that,  without  knowl- 
edge of  the  obligors,  the  name  of  a  witness 
to  the  signatures  was  added  to  the  agree- 
ment after  its  execution  and  delivery. 
Shiffer  v.  Mosier,  24:  1155,  74  Atl.  426, 
225  Pa.    552. 

4.  Assent  by  an  obligor  to  the  addition 
of  the  name  of  a  witness  to  the  signatures 
to  an  obligation  for  payment  of  money,  after 
the  instrument  has  been  rendered  void  by 
such  alteration,  will  not  restore  the  validity 
of  the  contract, — at  least  as  to  co-obligors, 
where  tlie  alleged  ratification  was  by  one  of 
the  parties  bound,  of  whose  acts  they  had 
no  knowledge.  Shiffer  v.  Mosier,  24:  1155, 
74  Atl.  426,  225  Pa.  552.  (Annotated) 

5.  A  deed  is  not  invalidated  by  its  al- 
teration, by  consent  of  the  parties  so  as 
to  convey  less  than  it  originally  called  for, 
and  will  pass  title  to  the  less  amount, 
if  it  is  redelivered.  Eadie  v.  Chambers, 
24:  879,  172  Fed.  73,  96  C.  C.  A.  561. 

6.  A  contract  for  the  sale  of  personal- 
ty is  not  vitiated  by  the  erasure  of  the 
former  corporate  name  of  the  promisee, 
which  inadvertently  had  been  used,  and  the 
insertion  of  the  correct  corporate  name  by 
the  promisee  upon  discovering  the  mistake, 
although  without  the  knowledge  of  the 
promisor,  since  a  change  in  a  contract  that 
does  not  vary  its  meaning  in  any  essential 
particular  nor  affect  the  liability  of  the 
party  to  be  charged  thereon  is  an  imma- 
terial alteration.  Blenkiron  Bros.  v.  Rog- 
ers, 31:  127,   127  N.  W.   1062,  87   Neb.   716. 

(Annotated) 
Filling  blanks. 

Presumption  of  authority  to  fill  blanks,  see 
Evidence,  169. 

7.  The  authorized  filling  of  blanks  in 
a  written  instrument  will  not  avoid  it  un- 
der the  doctrine  of  alteration  of  instru- 
ment. Montgomery  v.  Dresher,  38:  423, 
134  N.  W.  251,  90  Neb.  632. 
Mortgages. 

8.  Where  a  mortgage  was  executed  with 
the  blanks  for  the  name  of  the  mortgagee 
unfilled,  and  the  mortgage  delivered  to  the 

I  person  to  whom  the  indebtedness  secured 
by  the  mortgage  ran,  the  filling  in  of  his 
own  name  by  such  person  would  not  in- 
validate the  mortgage.  Montgomery  v. 
Dresher,  38:  423,  134  N.  W.  251,  90  Neb. 
632.  ( Annotated  \ 


ALTERATION  OF  INSTRUMENTS,  II.  a,   b. 


45 


II.  Bills  and  notes. 

a.  In   general. 

(See   also   same   heading  in  Digest   L.R.A. 
1-70.J 

Binding  effect  on  bank  of  alteration  of  note 

by  bank  agent,  see  Banks,  18. 
By   filling   blanks   in   note,   see   Bells   and 

Notes,  118. 
Who  is  a  holder  in  due  course  not  affected 

by  alteration  of  note,   see  Bills   and 

Notes,  179. 
Presumption  and  burden  of  proof  as  to,  see 

Evidence,  ]11,  604. 
Of  note  given   for   insurance   premium,   see 

Evidence,  833. 

9.  That  the  maker  of  a  note  understood 
that  it  was  to  carry  certain  interest  does 
not  authorize  the  insertion  in  the  instru- 
ment after  its  execution,  witliout  his  knowl- 
edge, of  a  clause  expressing  that  fact.  Mer- 
ritt  V.  Dewey,  2:  217,  75  N.  E.  1066,  218  111. 
699.  (Annotated) 

10.  Crossing  out  the  date  of  a  note  and 
writing  another  above  it  cannot  be  regard- 
ed as  mere  memorandum  of  the  time  from 
which  interest  is  to  be  figured,  rather  than 
an  alteration  of  the  instrument.  Barton 
Sav.  Bank  &  T.  Co.  v.  Stephenson,  51:  346, 
89  Atl.  639,  87  Vt.  433.  (Annotated) 
Effect. 

What  alterations  are  material,  see  infra,  II. 
b. 

11.  Alteration  of  the  date  of  a  note 
by  one  of  several  makers  to  whom  it  has 
been  intrusted  for  delivery,  before  deliver- 
ing it,  and  without  the  consent  of  the  co- 
makers, avoids  the  instrument.  Barton 
Sav.  Bank  &  T.  Co.  v.  Stephenson,  51:  346, 
89  Atl.  639,  87  Vt.  433.  ' 

12.  A  mortgage  given  to  secure  a  note 
altered  without  fraudulent  intent,  to  make 
the  rate  of  interest  conform  to  the  contract, 
is  not  vitiated  by  the  alteration  of  the  note, 
and  may  be  enforced  for  the  original  con- 
sideration if  otherwise  valid.  Edington  v. 
McLeod,  41:  230,  124  Pac.  163,  87  Kan.  426. 

(Annotated) 
Ratification. 
Necessity  of  new  consideration  to  validate 

ratification    of    alteration,    see    Bills 

AND  Notes,  37. 

13.  A  material  alteration  in  a  promis- 
sory note  may  be  ratified  by  any  person 
affected  by  it  so  as  to  bind  him  as  fully  as 
though  he  had  authorized  it  in  the  first  in- 
stance. Holyfield  v.  Harrington,  39:  131, 
115  Pac.  546,  84  Kan.  760. 

h.  What  alterations  are  material. 

(See   also   same   heading   in   Digest   L.R.A. 

1-10.) 

Question  for  jury  as  to,  see  Tbial,  285,  315. 

14.  A  memorandum  written  on  the  back 
of  a  promissory  note  at  the  time  of  its  exe- 
cution, which  limits  its  consideration,  af- 
Digest  1-52  L.R.A.(N.S.) 


fects  its  operation,  and  is  intended  to  be 
a  part  of  the  contract,  must  be  regarded 
as  a  substantive  part  of  the  note;  and  a 
material  alteration  of  it  after  the  execu- 
tion of  the  instrument  will  defeat  a  recov- 
ery thereon.  Kurth  v.  Farmers'  &  M. 
State  Bank,  15:  612,  94  Pac.  798,  77  Kan. 
475.  (Annotated) 

15.  Indorsing  upon  a  note  before  nego- 
tiation of  a  fictitious  payment,  for  the  pur- 
pose of  reducing  its  amount,  is  within  the 
provision  of  the  negotiable  instruments  act, 
which  avoids  a  note  in  favor  of  nonassent- 
ing  parties  in  case  of  a  material  alteration, 
which  is  defined  to  be  inter  alia  a  change  in 
the  sum  payable.  Washington  Finance 
Corp.  V.  Glass,  46:  1043,  134  Pac.  480,  74 
Wash.  653.  (Annotated) 
Altering  date. 

16.  At  common  law,  the  alteration  of  the 
date  of  a  promissory  note  is  a  material 
alteration;  and  when  made  by  one  not  a 
stranger  to  the  obligation  will  avoid  it  as 
to  all  parties  not  consenting  thereto.  Bo- 
dine  V.  Berg  (N.  J.  Err.  &  App.)  40:  65, 
82  Atl.  901,  82  N.  J.  L.  662. 

17.  An  alteration  of  the  printed  figures 
forming  part  of  the  date  of  a  note  written 
on  a  printed  blank,  so  as  to  make  them  cor- 
respond with  the  figures  written  in  ink  in 
the  body  of  the  note,  is  not  so  material 
as  to  avoid  the  note.  Lombardo  v.  Lombar- 
dini,  32:  515,  106  Pac.  907,  57  Wash.  352. 

(Annotated) 

18.  Change  of  date  of  a  note  by  one  of 
several  comakers  to  whom  the  instrument 
has  been  intrusted  for  delivery  cannot  be 
regarded  as  immaterial  because  it  was  in- 
tended to  give  the  instrument  the  date  tO' 
which  interest  had  been  paid  on  a  prior 
note  which  it  was  intended  to  renew;  at 
least,  as  to  persons  not  parties  to  the  old 
note.  Barton  Sav.  Bank  &  T.  Co.  v.  Stephen- 
son, 51:  346,  89  Atl.  639,  87  Vt.  433. 
Charging  rate  of  interest. 

19.  A  promissory  note  altered  by  the 
payee  by  increasing  the  rate  of  interest, 
without  fraudulent  intent,  to  make  it  con- 
form to  the  contract  in  pursuance  of  which 
it  was  given,  is  avoided.  Edington  v.  Mc- 
Leod, 41 :  230,  124  Pac.  163,  87  Kan.  426. 

20.  A  promissory  note  may  be  vitiated 
by  an  unauthorized  alteration  made  by  in- 
serting a  lower  rate  of  interest  than  that 
carried  by  the  instrument  as  originally  ex- 
ecuted. New  York  L.  Ins.  Co.  v.  Martin- 
dale,  21:  1045,  88  Pac.  559,  75  Kan.  142. 
Inserting  payee's  name. 

21.  A  bank  which  takes  a  note  with  an 
unfilled  blank  for  the  payee's  name  in  pay- 
men'  of  a  mortgage  debt,  and  fills  the  blank 
with  its  own  name,  when  the  note  had  been 
executed  and  intrusted  to  the  holder  to  pay 
for  a  meat  market,  with  instructions  to 
fill  the  name  of  the  seller  in  the  blank, 
gets  no  title,  where  the  statute  provides 
that  to  render  enforceable  a  note  executed 
with  an  unfilled  blank,  the  blank  must  be 
filled  up  strictly  in  accordance  with  the 
authority  given.  Hartington  Nat.  Bank 
V.  Wiebelhaus,  31:  130,  128  N.  W.  659,  8» 
Neb.   47. 


ALTERNATIVE  ALLEGATIONS— AMICUS  CURI^. 


Inserting  place   of  payment. 

22.  Filing  a  blank  left  in  a  promissory 
note  for  the  place  of  payment,  by  insert- 
ing such  place,  does  not  avoid  the  note 
under  the  negotiable  instruments  law,  mak- 
ing a  material  alteration  one  which  changes 
the  place  of  payment,  or  adds  the  place  of 
payment  where  no  such  place  was  specified, 
but  which  authorizes  a  holder  to  fill  blanks, 
and  it  is  immaterial  that  the  place  insert- 
ed is  located  in  another  state.  Diamond 
Distilleries  Co.  v.  Gott,  31:643,  126  S.  W. 
131,  137  Ky.  585.  (Annotated) 


ALTERNATIVE     ALLEGATIONS. 

In  pleadings,  see  Pleading,  2. 


ALTERNATIVE   DEVISE. 

See  Wills,  335. 


ALTERNATIVE  JUDGMENT. 

In  replevin,  see  Replevin,  36. 


♦  •» 


ALTERNATIVE  SENTENCE. 

See  Criminal  Law,  227. 

♦-•-♦ 

ALTERNATIVE  WHIT. 

Of  mandamus,  see  Appeal  and  Error,  406; 
Mandamus,  115-117. 


AMBIGUITY. 


In  contracts,  see  Contracts,  II. 

In  ordinance,  see  Municipal  Corporations, 

85,  86. 
In  complaint,  waiver  of,  see  Pleading,  42. 
In  statute,  see  Statutes,  35-44. 
In  summons,  see  Writ  and  Process,  2. 
Parol    evidence    to   explain,    see   Evidence, 

VI.  e. 


AMBULANCE. 


Negligence  in  driving  of,  see  Master  and 
Servant,  35;   Negligence,  181,  199. 


AMENDMENT. 


On  appeal,  see  Appeal  and  Error,  IV.  d. 
Of   affidavit,   see  Affidavits;    Appeal  and 

Error,  693,  1034. 
Digest  1-52  L.R.A.(N.S.) 


Of  undertaking  on  appeal,  see  Appeal  and 
Error,  144,  148. 

Of  bill  of  exceptions  nunc  pro  tunc,  see  Ap- 
peal and  Error,  227,  228. 

Of  defective  exception  to  auditor's  report, 
see  Api'eal  and  Error,  338. 

Of  remittitur  on  appeal,  see  Appeal  and 
Error,  1591. 

Of  constitution  of  base  ball  league,  see 
Associations,  10. 

Of  articles  of  incorporation  of  loan  associa- 
tion, see  Building  and  Loan  Associa- 
tions, 7,  14,  15. 

Of  constitution,  see  Constitutional  Law, 
I.  a,  2. 

Of  corporate  charter,  see  Corporation,  35- 
47. 

Of  indictment,  see  Criminal  Law,  141,  174 ; 
Indictment,  etc.,  II.  f. 

Of  judgment  in  criminal  cases,  see  Crim- 
inal Law,  231,  300. 

Of  city  charter,  see  Election,  38,  39. 

Of  by-laws  of  insurance  company,  see  In- 
surance, 100. 

Of  judgment,  see  Judgment,  I.  g. 

Of  alternative  writ  of  mandamus,  see 
Mandamus,   116,  117. 

Of  lien  claim  or  statement,  see  Mechanics' 
Liens,  99. 

Of  order,  see  Motions  and  Orders,  8. 

Of  charter,  see  Municipal  Corporations, 
13-18. 

Of  pleading,  see  Pleading,  I.  n. 

Of  records,  see  Records,  10,  11. 

Of  statute,  see  Statutes,  I.  e,  3,  III. 

Of  findings  of  court,  see  Trial,  1112,  1113. 

Of  verdict,  see  Triai.,  V.  d. 

Of  nuncupative  will,  see  Wills,  106. 

Of  return  to  writ,  see  Writ  and  Process, 
95. 

Suggested  amendment  as  necessary  part  of 
record  on  appeal,  see  Appeal  and 
Error,  165. 

Right  to  continuance  on  allowing,  see  Con- 
tinuance and  Adjournment,  1-3. 

As  affecting  limitation  of  action,  see  Limi- 
tation OF  Actions,  289-305. 

Effect  of,  on  right  to  withdraw  money  paid 
into  court,  see  Money  in  Court,  1. 


AMERCEMENT. 


Who  may  maintain  suit  for,   see  Parties, 

98. 
Of  sheriff,  see  Sheriff,  2-5. 
Strict  construction  of  statute  providing  for, 

see  Statutes,  £69. 


AMICUS  CURI^. 


Power  of  court  to  appoint  to  except  to  exec- 
utors' account,  see  Executors  and  Ad- 
ministrators, 129. 

1.  ^ftor  an  attorney  for  a  party  to  a 
pending  action  has  been  discharged  by  his 
client,  and  after  t^e  latter  has  stipulated 


AMNESTY— AMUSEMENTS. 


47 


with  his  adversary  for  a  decree  disregard- 
ing the  rights  of  minors  who  are  not  par- 
ties to  the  suit,  the  attorney,  as  a  friend 
of  the  court,  may  properly  suggest  facts 
necessary  to  the  protection  of  the  minors. 
Jones  V.  Hudson,  44:  1182,  141  N.  W.  141, 
93  Neb.  5G1. 


AMNESTY. 

See  Criminal  Law,  IV.  h. 


AMOUNT  IN  CONTROVERSY. 

For  purposes  of  jurisdiction,  see  Appeal 
AND  Error,  IL  c,  4;  Courts,  II.  a,  3, 
III.  e. 


AMUSEMENTS. 


Duty  of  carrier  to  furnish  special  trains  to 
amusement  park,  see  Carriers,  41-43. 

Exclusion  of  negroes  from,  see  Civil 
Rights,  2;  Costs  and  Fees,  20. 

Forbidding  resale  at  increased  price  of 
ticlvet  to  place  of,  see  Constitutional 
Law,  505,  507,  745,   746. 

Condition  on  theater  ticket  against  resale, 
see  Contracts,  445. 

Police  power  as  to  dance  lialls,  see  Consti- 
tutional Law,  695,  696. 

Validity  of  ordinance  regulating  dance 
liails,  see  Municipal  Corporations, 
219. 

Forbidding  presence  of  infanta  in  dance 
hall,  see  Statutes,  249. 

Excluding  officer  of  United  States  Navy 
from  dance  hall,  see  Damages,  628. 

Action  against  police  officers  for  excluding 
guest  from  public  dance,  see  Evidence, 
1755;   Police,  2. 

Failure  of  carrier  promptly  to  transport 
show   properties,   see   Damages,   286. 

False  imprisonment  by  restraint  upon  per- 
son refusing  to  pay  entrance  fee,  see 
False  Imprisonment,  13. 

Prohibiting  employment  of  children  in  plac- 
es of,  where  intoxicating  liquors  are 
sold,  see  Infants,  6-8. 

Contract  by  amusement  association  to  give 
certain  person  ice  cream  privilege,  see 
Injunction,  53. 

Eviction  of  lessor  of  building  leased  as 
place  of,  see  Landlord  and  Tenant, 
64. 

On  Sunday,  see  Sunday,  II. 

See  also  Baseball;  Bathing  Resorts;  Ex- 
hibitions; Horse  Race;  Theaters. 

1.  A  ticket  of  admission  to  a  race- 
track inclosure  is  only  a  revocable  license, 
and  the  holder's  only  remedy,  where  he  has 
been  forcibly  prevented  from  entering,  or 
has  been  forcibly  ejected  just  after  he  had 
dropped  his  ticket  into  the  box,  is  by  an 
action  for  damages  for  the  breach  of  the 
Digest  1-52  L.R.A.(N.S.) 


contract.  He  cannot  maintain  an  action 
of  trespass.  Marrone  v.  Washington  Jock- 
ey Club,  43:  961,  33  Sup.  Ct.  Rep.  401,  227 
U.   S.  633,  57  L.  od.  079.  ( --\iuiotated) 

Liability   for   injury   to   patron. 
Duty  of  operator  of  scenic  railway  toward 

passengers,  see  Carriers,  178. 
Injury  to  spectator  at  ball  game,  see  Dam- 
ages, 363;   Pleading,  280. 
Presumption   of  negligence   from   injury  to 
patron    at    amusement    park,    see    Evi- 
dence,  457. 
Evidence  in  action  for  injury  to  patron  at 
place    of    amusement,    see    Evidence, 
1762. 
Injury  by  fireworks  at  pleasure  resort,  see 
Fireworks;     Master     and     Servant, 
1009. 
Liability  of  owner  of  amusement  park  for 
negligence    of    independent    contractor, 
see  Master  and  Servant,  994. 
Negligence   in   maintaining  step   at  exit  of 
darkened  room  where  moving  pictures 
are  shown,  see  Negligence,  86,  87. 
Proximate    cause    of    injury    to    patron    at 
place  of,  see  Proximate  Cause,  35,  36. 
Question  for  jury  as  to  negligence  of  person 
running  place  of  amusement,  see  Trial, 
560-562. 

2.  Reasonable  care  is  the  measure  of 
duty  under  which  the  owner  of  a  place  of 
amusement  rests  with  respect  to  the  safety 
of  places  provided  for  patrons.  Williams  v. 
Mineral  City  Parle  Asso.  i:  427,  102  N.  W. 
783,   128   Iowa,   32.  (Annotated) 

3.  Ordinary  care  measures  the  duty  of 
the  owner  ©f  a  place  of  amusement  to  pa- 
trons with  respect  to  the  safety  of  a  stand 
containing  seats  which  they  are  invited  to 
occupy.  Phillips  v.  Butte  Jockey  Club  & 
Fair  Asso.  42:  1076,  127  Pac.  1011,  46  Mont. 
338. 

4.  Liability  of  the  owner  of  seats  in  a 
place  of  amusement  for  injury  to  a  patron 
is  not  shown  by  an  allegation  that  the 
patron  was  tripped  by  a  projecting  nail 
on  a  stairway,  and  fell  to  his  injury  upon 
a  broken  board  on  the  landing,  of  which 
defects  the  owner  had  knowledge,  without 
stating  facts  showing  defendant's  knowl- 
edge, actual  or  implied,  of  the  defects.  Phil- 
lips V.  Butte  Jockey  Club  &  Fair  Asso.  42: 
1076,  127  Pac.  1011,  46  Mont.  338. 

5.  Failure  to  provide  around  a  band 
stand  erected  above  the  seats  provided  for 
patrons,  by  an  amusement  association,  a 
barrier  which  will  prevent  articles  falling 
therefrom,  is  not  negligence  as  matter  of 
law.  Williams  v.  Mineral  City  Park  Asso. 
i:  427,  102  N.  W.  783,  128  Iowa,  32. 

6.  The  owner  of  a  place  of  amusement 
is  not  liable  for  injury  to  a  patron  by  a 
bottle  carelessly  dropped  by  a  musician  from 
a  band  stand  erected  over  seats  provided  for 
patrons.  Williams  v.  Mineral  City  Park 
Asso.  1 :  427,   102  N.  W.  783,  128  Iowa,  32. 

7.  The  owner  of  a  pleasure  resort,  who 
permits  the  playing  of  ball  away  from  tbc 
portion  of  the  grounds  devoted  to  such  sport 
and  near  to  that  devoted  to  dancing,  with- 
out notifying  those  interested  in  the  dancing 


48 


ANJi:STHET[C— ANCIENT    INSTRUxMENTS. 


or  taking  precautions  to  protect  them  from 
injury,  may  be  liable  for  an  injury  inflicted 
by  a  ball  thrown  upon  a  spectator  of  the 
dancing.  Blakeley  v.  White  Star  Line,  19: 
772,  118  N.  W.  482,  154  Mich.  635. 

( Annotated ) 

8.  One  who  maintains  grounds  to  which 
the  public  is  invited  to  witness  games  of 
baseball  is  not  an  insurer  against  the  dan- 
gers incident  to  witnessing  the  game,  nor 
is  it  his  duty  to  guard  against  improbable 
dangers,  so  as  to  render  him  liable  for  in- 
juries to  a  spectator  caused  by  being  struck 
with  the  ball,  where  such  spectator  is  seated 
behind  a  screen  furnished  for  the  protection 
of  spectators,  and  it  is  claimed  that  the 
ball  curved  around  the  end  of  the  screen. 
Wells  V.  Minneapolis  Baseball  &  A.  Asso. 
46:  606,  142  N.  W.  706,  122  Minn.  327. 

9.  Spectators  at  a  game  of  baseball  who 
know  and  appreciate  the  danger  from 
thrown  or  batted  balls  assume  the  risk, 
and  cannot  claim  that  the  management  is 
guilty  of  negligence,  when  a  choice  is  given 
between  a  seat  in  the  open  and  one  behind 
a  screen  of  reasonable  extent,  and  they 
select  a  seat  in  the  open.  Wells  v.  Minnea- 
polis Baseball  &  A.  Asso.  46:  606,  142  N.  W. 
706,  122  Minn.  327. 

30.  That  a  transportation  company  main- 
taining a  pleasure  resort  at  the  termination 
of  its  line  as  an  inducement  to  persons  to 
patronize  the  line  charges  no  fee  for  admis- 
sion to  it,  depending  for  its  profit  on  the 
passengers  carried,  does  not  exempt  it  from 
the  rule  requiring  the  owners  of  pleasure 
resorts  to  protect  invited  guests  from  un- 
usual occurrences  which  may  result  in  seri- 
ous danger  to  them.  Blakeley  v.  White  Star 
Line,  19:  772,  118  N.  W.  482,  154  Mich.  635. 

11.  An  association  conducting  a  fair  is 
liable  for  injury  to  a  patron  through  defect 
in  apparatus  employed  by  a  concessionary 
for  the  amusement  of  patrons,  where  it  re- 
ceives a  portion  of  the  sums  paid  for  the 
use  of  the  apparatus,  has  general  charge  of 
the  grounds,  and  takes  an  active  part  in 
advertising  the  amusements.  Hollis  v.  Kan- 
sas City,  Missouri,  R.  M.  Asso.  14:  284,  M)3 
S.  W.  32,  205  Mo.  508.  (Annotated) 

12.  The  owner  of  an  amusement  park 
who  receives  a  percentage  of  the  receipts  ef 
concessioners  as  compensation  for  the  con- 
cessions assumes  an  obligation  that  the  de- 
vices and  attractions  operated  by  them  are 
reasonably  safe  for  the  purposes  for  which 
the  public  is  invited  to  use  them.  Stickel  v. 
Riverview  Sharpshooters'  Park  Co.  34:  659, 
95  N.  E.  445,  250  111.  452. 

13.  One  who,  for  the  purpose  of  giving 
an  exhibition  for  pay,  rents  a  new  state 
armory  which  has  been  erected  under  the 
supervision  of  a  competent  architect,  is 
not  answerable  for  latent  defects  in  the 
balcony  railing  which  appears  to  be  suffi- 
cient; nor  is  he  bound  to  have  the  railing 
inspected  by  competent  experts,  so  as  to 
be  liable,  in  the  absence  of  such  inspection, 
for  injury  to  a  patron  who  is  injured  by  its 
giving  way  at  a  time  when  the  balcony  is 
not  overcrowded,  but  patrons  are  leaning 
against  the  railing  to  get  a  better  view  of 
Digest  1-52  L.R.A.(N.S.) 


J  the   performance.      Greene   v.    Seattle   Ath- 

j  letic  Club,  32:713,  111   Pac.   157,  GO  Wash. 

300.  (Annotated) 

14.  The  proprietor  of  an  attraction  in  an 
amusement  park,  in  connection  witli  which 
a  mallet  is  used,  cannot  escape  liability  for 
injury  to  a  patron  by  tlie  end  of  the  han- 
dle striking  his  knee  when  tiie  head  flies 
off,  on  the  theory  that  such  injury  could 
not  reasonably  have  been  anticipated.  Wod- 
nik  v.  Luna  Park  Amirsement  Co.  42:  1070, 
125  Pac.  941,  69  Wash.  638. 

15.  A  patron  of  an  attractio*'  in  an 
amusement  park  is  not  negligent  in  grasping 
a  mallet  near  the  head,  rather  than  at  the 
other  end,  wlien  attempting  to  use  it  for 
the  purpose  for  which  it  was  intended,  so 
as  to  prevent  his  holding  tlie  owner  liable 
in  case  the  head  flies  off  to  his  injury. 
Wodnik  v.  Luna  Park  Amusement  Co.  42: 
1070,  125  Pac.  941,  69  Wash.  638. 
Injury  to  participant  in  race. 

16.  A  fair  association  whicli  knowingly 
permits  a  dog  to  be  brought  upon  its 
grounds  by  a  patron,  in  violation  of  its 
rule  not  to  allow  dogs  thereon  and  especial- 
ly upon  its  race  track,  is  liable  for  the  acts 
of  such  patron  in  permitting  it  to  run  upon 
the  track,  to  the  injurj'  of  a  participant  in 
a  race.  McClain  v.  Lewiston  Interstate  Fair 
&  R.  Asso.  25:  691,  104  Pac.  1015,  17  Idaho, 
63. 


■♦>♦■ 


ANESTHETIC. 

See  Anaesthetic. 

♦-•-♦ • 


ANALYSIS. 

Judicial  notice  as  to,  see  Evidence,  25. 
\ «^,-» 

ANARCHY. 

Right  to  display  red  flag  in  procession,  see 
Breach  of  Peace,  2;   Evidence,  1970. 
See  also  Mobs  and  Riots,  2. 


ANATOMY. 


Exhibition  of  human  anatomy,  see  Consti- 
tutional Law,  417;  Courts,  158;  Mu- 
nicipal Corporations,  145. 


ANCIENT    INSTRUMENTS. 

Admissibility    in    evidence,    see    Evidence, 
741,  743-746. 


ANCIENT  LIGHTS— ANIMALS. 


49 


ANCIENT  LIGHTS. 

Extinguishment  of   casement  of,   see  Ease- 
ments, 91. 


ANCILLARY  ADMINISTRATION. 

See   Executors   and   Administratx)rs,   VI. 


ANCILLARY  JURISDICTION. 

In  Federal  court,  see  Courts,  III.  g. 


ANCILLARY   PETITION. 

In  aid  of  levy;  jurisdiction  of,  see  Courts, 
18. 


ANCILLARY    PROBATE. 

At  testator's  domicil  after  probate  in  other 
jurisdiction,   see  Wills,   112. 


ANCILLARY  RECEIVERS. 

See  Receivers,  VI. 


ANCILLARY  SUIT. 

In  Federal  court,  see  Courts,  III.  g. 


ANESTHETIC. 

Riglit  of  dependent  to  compensation  where 
injured  workman  dies  under,  see  Mas- 
ter AND  Servant,  138. 

Failure  of  master  to  provide  physician  to 
administer  to  injured  employee,  see 
Master  and  Servant,  178. 

Death  from  administration  of,  as  proximate 
result  of  accident,  see  Proximate 
Cause,  17. 


ANIMALS. 


I.  Rights  and  liabilities  concerning, 
1-40. 

a.  In  general;  rights  of  owners 
generally,    1—7. 

h.  Liabilitij  for  Tcilling  or  injur- 
ing dogs,   8—11. 

c.  Liability  for  injuries   by,    12— 

37. 

1.  In  general;  stocTc,   12—28. 

2.  Dogs,    29—37. 

d.  Running    at    large,    38. 
Digest   1-52  L.R.A.(N.S.) 


/. — continued. 

e.  Aiiltnals    with    infectious    dis- 

eases. 

f.  Tax  on  dogs,  39,   40. 

II.  Cruelty  to;  criminal  liability  for  in- 
jury to,  41—43. 


As  to  agistment,  see  Agisters. 

Fright  of,  see  Automobiles,  38-51;  Blast- 
ing, 3;  Bridges,  8;  Evidence,  490, 
1145,  1772,  1863,  1864;  Highways,  174, 
199-202,  205,  277-284,  338,  353;  Inter- 
urban  Railway,  4;  Municipal  Cor- 
porations, 333,  334,  347,  359;  Negli- 
gence, 19,  20,  194,  213,  238,  293; 
Plbiading,  400;  Proximate  Cause,  163, 
164;  Railroads,  II.  d,  5,  233-235,  240- 
242;  Street  Railways,  47,  54,  69,  101; 
Trial,    413,   417,   425,   439,    806,    1128. 

Negligence  of  rider  or  driver  of  horse  ap- 
proaching automobile,  see  Automo- 
biles, 67-70. 

Liability  for  injury  to,  or  loss  of,  in  hands 
of  bailee,  see  Bailment,  2,  13-17;  Evi- 
dence, 449;  Pleading,  240. 

Injury  to  horse  on  bridge,  see  Bridges,  11; 
Highways,  329;   Trial,  413. 

Arrest  of  passenger  refusing  to  put  dog  in 
baggage  car  and  to  pay  fare  for  it,  see 
Carriers,  155. 

Transportation  of,  see  Carriers,  III.  f; 
Commerce,  76-78. 

Injury  to  caretaker  of  stock  during  trans- 
portation, see  Carriers,  324-328,  341, 
642,  643,  670,  911-9]4. 

Injury  to  person  on  depot  jjlatform  struck 
by  animal  thrown  from  track  by  en- 
gine, see  Carriers,  614;  Trial,  374, 
1054. 

Burial  of,  in  cemetery,  see  Cemeteries,  3; 
Injunction,  41. 

Mortgage  on,  see  Chattel  Mortgage,  8, 
19-21,  43. 

Imposing  grazing  fee  on  all  sheep  entering 
state,  see  Commerce,  12,  16. 

Right  of  state  to  forbid  importation  and 
use  of  docked-tailed  horses,  see  Com- 
merce,  38. 

Ordinance  providing  for  disposal  of  car- 
cases of  dead  animals,  see  Constitu- 
tional Law,  195,  525. 

Constitutionality  of  statute  requiring  use 
of,  in  road  work,  see  Constitutional 
Law,  224. 

Giving  humane  society  officer  lien  for  caring 
for,   see   Constitutional   Law,    All. 

Police  power  as  to,  see  Constitutional 
Law,  653-655. 

Damages  for  injury  to,  see  Damages,  292- 
295. 

Breach  of  warranty  on  sale  of  horse,  see 
Damages,  188,  189;  New  Trial,  62,  64; 
Sale,  3,  89,  98,  123,  175-179,  200. 

Judicial  notice  as  to  conditions  created  by 
keeping  of  hogs,   see  Evidence,  44. 

Burden  of  proving  express  company's  lia- 
bility for  death  of,  see  Evidence,  389. 

Presumption  of  negligence  of  owner  from 
running  away  of  horse,  see  Evidence, 
459-461. 


60 


ANIMALS.  I.  a. 


Presumption  as  to  ownership  of  runaway 
horse,  see  Evidence,  612. 

Presumption  of  negligence  of  driver  of 
horse  frightened  by  street  car,  see  Evi- 
dence,  490. 

Increase  of,  burden  of  proving  right  to,  see 
Evidence,  569. 

Admissibility  of  cattle  brands  in  evidence, 
see  Evidence,  716,  1992. 

Opinion  evidence  as  to  cattle  brand,  see 
Evidence,  1181. 

Trailing  of  criminal  with  blood  hound,  see 
Evidence,  1984-1988,  2356-2357 ; 
Trial,  941. 

Killing  of  horse  by  electric  shock  from 
street  car  rail,  see  Evidence,  2166. 

Sufficiency  of  evidence  to  show  that  team 
was  beyond  control  of  driver,  see  Evi- 
dence, 2313, 

Variance  between  pleading  and  proof  in 
action  for  injury  to,  see  Evidence, 
2486. 

Exemption  of  horses  from  levy,  see  Exemp- 
tions, 15. 

As  game,  see  Game  and  Game  Laws. 

Hitching  horses  in  streets,  see  Highways, 
15;  Municipal  Cobpobations,  107- 
110. 

Right  to  maintain  cattle  pass  under  high- 
way, see  Highways,  21-23. 

Liability  for  injury  to,  during  runaway, 
see  Highways,  272. 

Liability  for  injury  to,  on  defective  high- 
way, see  Highways,  265. 

Right  to  recover  for  injuries  caused  by 
runaway  horse  coming  in  collision  with 
obstruction  in  highway,  see  Highway's, 
338. 

Negligence  in  leaving  horse  unhitched  in 
highway,   see  Highways,   338;    Street 

PvAILWAYS,    101. 

Sale  of,  by  Indians,  see  Indians,  4,  5. 

Right  to  enjoin  erection  of  fence  against, 
see  Injunction,  102. 

Injunction  against  trespass  of  fowls,  see 
Injunction,  196,  197. 

Insurance  on,  see  Insurance,  181,  680. 

Horse  stealing,   see  Larceny,  4. 

Stable  for  horses,  see  Livery  Stable;  Sta- 
bles. 

Owner's  liability  for  servant's  act  in  permit- 
ting boy  to  ride,  see  Master  and  Serv- 
ant, 909. 

As  dangerous  agency,  see  Masteb  and  Serv- 
ant, 987. 

Lien  on  logs  for  services  of  horses,  see  Me- 
chanics' Liens,  37. 

Illegal  combination  for  marketing  of  live- 
stock, see  Monopoly  and  Combina- 
tions, 41. 

Liability  of  municipality  or  its  officers  for 
impounding,  see  Municipal  Cokpoba- 
TioNS,  327. 

Regulating  keeping  of  hogs  within  limits  of 
municipality,  see  Municipal  Corpora- 
tions, 159-161. 

Forbidding  cattle  yards  in  residence  district 
of  city,  see  Municipal  Corporations, 
155. 

Forbidding  exhibition  of  stallion  on  street, 
scG  Municipal  Corporations,  146. 

Digest   1-52  L.R.A.(N.S.) 


Liability  of  retailer  of  mill  feed  for  injury 

to    cattle    caused    thereby,    see    Nbmi^i- 

gence,  58. 
Contributory   nogligenee   in   driving  vicious 

horse,  see  Negligence,  240. 
Howling  and   barking  of  dogs  as  nuisance, 

see  Nuisances,  27. 
Stables  for,  as  nuisance,  see  Nuisances,  43- 

47. 
Injury  to,  by  barbed  wire,  see  Nuisances, 

120,  127. 
Negligence  in  entrusting  minor  son  with  un- 
ruly horse,  see  Parent  and  Child,  21, 
Authority  of  agent  to  trade  horse,  see  Prin- 
cipal and  Agent,  34. 
Sale   of,   by   agent   in    excess   of   authority, 

see    Principal   and    Agent,    34-36. 
Proximate   cause   of   injury   to,    see    J'roxi- 

mate  Cause,  38,  39,  100,  117. 
Proximate   cause   of   injury   resulting   from 

friglit  of  horse,  s*ee  Proximate  Cause, 

103,  164. 
Proximate    cause    of    injury    to    driver    of 

frightened  horse,  see  Proximate  Cause, 

114. 
Injury  to,  by  railroad  train,  see  Railroads, 

II.  d,  6,  e,  4. 
Purchase  of  stolen  animals,  see  Receiving 

Stolen  Property,  4. 
Liability  of  merchant  selling  petroleum  for 

dipping    cattle    for    injuries    resulting 

from  use,  see  Sale,  90. 
Repudiation     of    purchase    of,    because    of 

fraud,  see  Sale,  112. 
Conditional    sale    of,    who    must    bear    loss 

caused  by  death  of,  see  Sale,   146. 
Pollution   of  water  by  burying   carcass   of, 

near  spring,  see  Trial,  642;   Waters, 

209. 
Injury  at  railroad  crossing  in  attempting  to 

stop  runaway  horse,  see  Trial,  1044. 
Free  water  supply  for  drinking  fountains, 

see  Waters,   360-362. 

/.  Rights  and   liabilities  concerning. 

a.  In   general;    rights   of   owners    gen- 
erally. 

(See   also    same   heading   in   Digest    L.R.A. 
1-10.) 

1.  It  is  within  the  legitimate  field  of 
governmental  action  to  foster  and  promote 
the  breeding  of  thoroughbred  horses.  State 
Racing  Commission  v.  Latonia  Agricultural 
Asso.  25:  905,  123  S.  W.  681,  136  Ky.   173. 

2.  One  who  has  wounded  a  wild  animal 
and  pursued  it  so  that  escape  is  impossible 
has  a  property  therein  "vhich  he  may  pro- 
tect against  one  who  kills  and  takes  pos- 
session of  it.  Liesner  v.  Wanie,  50:  703, 
145  N.  W.  374,  156  Wis.  16.       (Annotated) 

3.  The  loss  of  its  collar  without  the 
owner's  knowledge,  by  a  dog,  while  absent 
from  home,  does  not  subject  the  owner  to 
fine,  under  a  statute  imposing  a  fine  for 
"keeping"  a  dog  which  does  not  wear  a 
collar.  State  v.  Kelley,  42:  437,  84  At).  861. 
85  Vt.  237.  (Annotated) 

4.  A  railroad  company  which  permits 
a  leaky  oil  car  to  stand  near  where  cattle 


ANIMALS,  I.  b,  c,  1. 


51 


are  rightly  accustomed  to  graze  along  a 
highway  and  its  unfenced  track,  so  that  the 
oil  forms  pools,  the  drinking  of  which  will 
be  injurious  to  the  cattle,  is  bound  to  guard 
the  pools,  or  drive  away  cattle  which  it 
sees  drinking  the  oil.  St.  Louis,  I.  M.  & 
S.  R.  Co.  V.  Newman,  28:  83,  127  S.  W.  735, 
94   Ark,   458.  (Annotated) 

Riglit  to  recover  for  injury  to  tres- 
passing animals. 

5.  A  miner  or  prospector  is  not  bound 
to  protect  a  shaft  or  pit  constructed  in  the 
course  of  his  operations,  to  prevent  injury 
to  stock  which  has  a  right  to  run  at  large, 
and  may,  if  tlie  openings  are  not  protected, 
fall  into  tliem.  Strong  v.  Brown,  52:  140, 
240  Pac.  773,  26  Idaho,  1. 

6.  One  in  possession  of  unfenced  land 
is  not  liable  for  injury  to  cattle  straying 
thereon  from  a  public  range,  because  he 
maintained  a  ditch  or  spillway  on  it  in  an 
unguarded  condition,  into  which  the  cattle 
fell,  although  the  cattle  were  rightfully  per- 
mitted to  roam  on  the  range.  Gillespie 
V.  Wheatland  Industrial  Co.  52:  133,  140 
Pac.  832,  —   VVyo.  — .  (Annotated) 

7.  A  fence  act  (2  N.  J.  Ccmp.  Stat. 
1910,  p.  2299)  Avhich  provides  a  complete 
scheme  for  the  enforcement  of  the  mutual 
obligation  to  build  and  keep  up  partition 
fences,  and  defines  various  rights  and  pro- 
vides various  remedies,  but  which  is  silent 
as  to  any  liability  for  accidental  injury  to 
trespassing  animals,  imposes  no  liability 
on  an  owner  who  is  in  default,  for  acci- 
dental injury  to  animals  of  an  adjoining 
owner  which  stray  upon  his  land  by  reason 
of  a  defect  in  a  fence  which  he  failed  ,to 
repair.  Van  Nest  v.  Dealaman  (N.  J.  Err. 
&  App.)  52:  99,  90  Atl.  308,  85  N.  J.  L. 
650. 

ft.  Liability  for  Tcilling  or  injuring 
dogs. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Evidence  as  to  value  of  dog  killed,  see  Evi- 
dence, 1691. 

Evidence  of  pedigree  of  dog  killed,  see  Evi- 
dence, 1275. 

Duty  of  motorman  towards  dogs  on  track, 
see  Street  Railways,  52. 

8.  The  owner  of  a  dog  may  maintain 
an  action  against  one  who  wantonly  and 
maliciously  kills  or  injures  his  dog.  Co- 
lumbus R.  Co.  v.  Woolfolk,  10:  1136,  58  S. 
E.  152,  128  Ga.  631. 

9.  That  a  dog  has  a  habit  of  killing 
fowls,  and  has  in  fact  on  former  occasions 
killed  some  belonging  to  a  particular  per- 
son, does  not,  either  at  common  law  or  un- 
der a  statute  making  it  criminal  wilfully 
or  carelessly  to  keep  any  such  animal,  en- 
title him  to  kill  it,  when  it  is  merely  near 
where  the  fowls  are,  if  they  are  protected 
by  a  substantial  barrier  and  the  danger  of 
its  reaching  them  is  not  so  imminent  or  im- 
mediately threatening  that  a  prudent  and 
reasonable  man  would  be  held  to  believe 
Digest  1-52  L.R.A.(N.S.) 


that  his  property  was  in  jeopardy.     State  v. 

Smith,  36:  910,  72  S.  E.  321,  156  N.  C.  628. 

Trespassing  dogs. 

Opinion  evidence  as  to  habits  of  dogs,  see 
Evidence,   1201. 

Criminal  liability  for  killing  dog,  see  Ma- 
licious Mischief,  4. 

10.  The  owner  of  premises  is  justified  in 
using  such  force  in  ejecting  dogs  which  are 
chasing  and  worrying  his  live  stock  to  its 
apparent  danger,  as  a  reasonably  prudent 
man  would  use  under  like  circumstances 
in  defense  and  protection  of  his  property. 
State  V.  Churchill,  19:  835,  98  Pac.  853,  15 
Idaho,  645, 

11.  An  owner  of  premises  is  justified  in 
using  such  force  as  is  necessary  to  eject 
therefrom  dogs  which  are  harassing  and 
worrying  gravid  animals  in  such  a  manner 
as  will  likely  cause  pecuniary  loss,  even 
though  he  has  knowledge  of  the  traits  and 
habits  of  that  particular  breed  of  dogs,  and 
that  they  would  not  in  fact  kill  or  maim  a 
domestic  animal.  State  v.  Churchill,  19: 
835,  98  Pac.  853,  15  Idaho,  645. 

c.  Liability  for  injuries  by. 

1.  In  general;  stocTc. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Liability  for  communication  of  infectious 
disease,  see  infra,  I.  e. 

Nature  of  action  for  injury  to  horse  let  by 
liveryman,  see  Action  or  Suit,  85. 

Liability  of  carrier  for  injury  by  wild  ani- 
mal, see  Carriers,  764,  765. 

Evidence  of  viciousness  of,  see  Evidence, 
1267,  1415,  1771,  2314. 

Opinion  evidence  as  to  tendency  to  become 
vicious  after  certain  age,  see  Evidence, 
1202. 

Insurance  against  liability  for  injuries  done 
by  horses,  see  Insurance,  638. 

Judgment  in  action  for  damages  caused  by 
vicious  conduct  of  horse,  see  Judg- 
ment, 47. 

Liability  of  master  for  injury  by  horse  in 
hands  of  servant,  see  Master  and 
Servant,  906-909,  911,  912,  919,  982, 
987. 

Master's  liability  for  injury  by  horse  owned 
by  servant,  see  Master  and  Servant, 
906. 

Injury  to  servant  by  vicious  animal,  see 
Master  and  Servant,  142,  236,  237, 
642,  862. 

Liability  of  city  for  injury  to  employee  by 
vicious  horse,  see  Municipal  Corpora- 
tions, 408. 

Injury  by  runaway  horse,  see  Negligence, 
188-194,  237,  241, 

Liability  for  breaking  of  window  by  chick- 
en, see  Negligence,  28, 

Proximate  cause  of  injury  by,  see  Proxi- 
mate Cause,  VII, 

12.  One  in  possession  and  control  of  a 
ferocious  wolf  on  a  public  highway  is  lia- 
ble,  whether   he   is   the   owner   or   not,   for 


52 


ANIMALS,  I.  c,  1. 


injuries  inflicted  by  it  on  another  person. 
Hays  V,  Miller,  ii:  748,  43  So.  818,  150  Ala. 
021.  (Annotated) 

13.  The  owner  of  a  monkey  which  es- 
capes from  the  cage  in  which  it  is  con- 
fined and  attacks  and  injures  a  person  while 
at  liberty  is  answerable  in  damages  for  the 
injury  so  inflicted.  Phillips  v.  Garner,  52: 
377,  (54  So.  735,  —  Miss.  — .  (Annotated) 
Stock. 

14.  The  owner  of  a  cow,  who,  knowing 
it  to  be  vicious  towards  strangers,  employs 
a  stranger  to  milk  it,  assuring  him  that  it 
is  gentle,  is  liable  for  injuries  inflicted  upon 
him  by  it  when  he  makes  the  attempt  to 
do  so.  Thornton  v.  Layle,  17:  1233,  111  S. 
W.  279,  33  Ky.  L.  Rep.  382. 

Stock  trespassing  or  rnnning  at  large. 

Liability  of  railroad  company  which  has  cut 
gap  in  fence,  for  injury  to  crops  by 
trespassing  cattle,  see  Cbiminal  Law, 
2;  Master  and  Servant,  1013. 

As  to  effect  of  character  of  possession  of 
plaintiff  on  right  to  maintain  action  for 
trespass  by,  see  Trespass,  20. 

As  to  duties  and  liabilities  as  to  fences, 
see  Fences. 

15.  No  personal  liability  is  imposed  upon 
the  owner  of  animals  allowed  to  run  at 
large  for  the  injury  done  by  them,  by  a 
statute  making  it  unlawful  to  permit  ani- 
mals t©  run  at  large  in  certain  municipali- 
ties, and  requiring  them  to  adopt  ordinances 
to  prevent  it.  Jones  v.  Hines,  22:  1098,  47 
So.  739,  157  Ala.  624. 

16.  No  personal  liability  is  imposed  upon 
the  owner  of  stock  for  injuries  done  while 
it  is  running  at  large,  by  a  municipal  ordi- 
nance which  merely  prohibits  its  doing  so, 
and  provides  for  impounding  it  in  case  of 
violation  of  the  ordinance.  Jones  v.  Hines, 
22:  1098,  47  So.  739,  157  Ala.  624. 

17.  A  municipal  corporation  cannot  im- 
pose personal  liability  on  a  nonresident  for 
injuries  done  within  its  limits  by  his  stock 
which  wandered  there.  Jones  v.  Hines,  22: 
1098,  47  So.  739,  157  Ala.  624.    (Annotated) 

18.  To  hold  the  owner  of  a  steer  permit- 
ted to  stray  onto  the  highway  liable  for  in- 
juries done  to  a  traveler  there,  the  animal 
must  be  shown  to  have  been  vicious,  and 
the  owner  must  be  shown  to  have  known 
that  fact.  Harris  v.  Carstev.s  Packing  Co. 
6:  1 164,  86  Pac.  1125,  43  Wash.  647. 

19.  One  who  knows,  or  should  know,  that 
his  steer  is  vicious,  is  liable  for  injuries  in- 
flicted by  the  animal  on  travelers,  if  it 
strays  unattended  onCo  the  highway,  al- 
though the  owner  is  guilty  of  no  negligence, 
and  has  taken  extraordinary  precautions  to 
prevent  the  animal  from  doing  harm.  Har- 
ris V.  Carstens  Packing  Co.  6:  1164,  86  Pac. 
1 125,  43  Wash.  647.  ( Annotated ) 

20.  The  owner  of  a  vicious  steer  is  not 
absolved  from  liability  for  injuries  inflicted 
by  him  upon  a  travelei-  on  the  highway  by 
the  fact  that,  while  being  driven  along  the 
highway,  he  jumped  a  cattle  guard  onto  the 
right  of  way  of  an  electric  railwa.,  com- 
pany, came  in  contact  with  an  electric  cur- 
rent, and  was  left  fo:  dead,  if  he  subse- 
quently revived  and  wandered  back  onto  the 
Digest  1-52  L.R.A.(N.S.) 


highway  and  injured  a  passer-by.  Harris 
v.  Carstens  Packing  Co.  6:  1164,  86  Pac. 
1125,  43  Wash.  647. 

21.  The  owner  of  a  cow  which  was  at 
large  in  a  public  highway  is  not  liable  in 
damages  to  a  person  injured  by  being 
thrown  from  her  vehicle  when  her  horse 
took  fright  at  the  cow,  which  was  lying  in 
the  traveled  way,  and  started  to  get  up 
when  she  attempted  to  drive  around  it. 
Marsh  v.  Koons,  16:  647,  84  N.  E.  599,  78 
Ohio  St.  68.  (Annotated) 

22.  The  provisions  of  Ohio  Rev.  Stat. 
§§  4202,  4206,  making  it  unlawful  for  the 
owner  of  animals  to  suffer  them  to  run  at 
large  in  the  public  highway,  and  making 
him  liable  for  all  damages  done  by  them  on 
the  premises  of  another,  are  designed  to 
prevent  trespasses  instead  of  securing  the 
safety  of  travelers  on  the  highway,  and  do 
not  render  the  owner  of  an  ani^nal  liable  in 
damages  to  a  person  injured  when  her  horse 
took  fright  at  the  animal,  which  was  at 
large  in  the  highway,  contrary  to  the  stat- 
ute. Marsh  v.  Koons,  j6:  647,  84  N.  E. 
599,  78  Ohio  St.  68. 

23.  An  owner  of  part  of  a  drover  of  cattle 
which,  while  being  driven  along  the  high- 
way, trespassed  upon  another's  land,  is  lia- 
ble for  such  part  of  the  damage  done  by  all 
the  cattle  as  the  number  of  cattle  owned  by 
him  bears  to  the  whole  number  of  cattle 
trespassing  upon  the  land,  where  the  evi- 
dence justifies  the  finding  that  they  did 
equal  damage  to  it.  Wood  v.  Snider,  12: 
912,  79  N.  E.  858,  187  N.  Y.  28. 

(Annotated) 
.  24.  An  owner  of  bulls  over  one  year  old 
which  escape  from  the  land  of  the  owner 
to  that  of  a  neighbor,  by  reason  of  the  fail- 
ure of  the  latter  to  keep  up  a  portion  of 
the  division  fence,  in  accordance  with  a  con- 
tract between  such  owners,  is  not  liable  for 
the  resulting  damages,  under  a  statute  for- 
bidding the  owners  of  bulls  over  one  year 
old  to  permit  them  to  run  at  large,  since 
they  are  not  deemed  to  be  running  at  large 
within  the  meaning  of  the  statute  as  to  one 
whose  own  fault  causes  their  freedom  from 
restraint.  Walker  v.  McAfee,  27:  226,  107 
Pac.  637,  82  Kan.  182. 

25.  The  owner  of  a  boar  hog  is  not  lia- 
ble for  a  personal  injury  inflicted  by  it 
while  straying  upon  the  uninclosed  land 
of  the  injured  person,  in  the  absence  of 
proof  that  the  owner  had  previous  knowl- 
edge of  his  vicious  propensities,  where,  by 
the  law  of  the  jurisdiction,  the  owner  of 
animals  not  known  to  be  vicious  is  not 
bound  to  confine  them,  at  his  peril,  on  his 
own  land.  Johnston  v.  Mack  Mfg.  Co.  24: 
H89,  64  S.  E.  841,  65  W.  Va.  544. 

26.  A  railroad  company  which,  in  the 
construction  of  its  roadbed,  removes  the 
fences  crossed,  is  liable  for  injury  to  ad- 
joining land  by  cattle  which  come  upon  its 
right  of  way  from  the  highway  through  a 
gap  in  the  fence,  and  wander  off  onto  the 
land  injured.  Hubert  v.  Connell  Northern 
R.  Co.  43:  447,  129  Pac.  105,  71  Wash.  567, 

( Annotated ) 

27.  One  having  a  stubble  field  in  a  com- 


ANIMALS,  I.  c,  2,  d. 


53 


mon  inclosure  with  another's  crops  sub- 
ject to  tlie  statutory  liability  imposed  for 
turning  cattle  into  an  inclosure  where  crops 
are  growing,  in  case  he  permits  a  stranger 
to  turn  cattle  into  the  inclosure  to  the  in- 
jury of  the  crops.  Sliannon  v.  McNabb, 
38:  244,   120  Pac.  268,  29  Okla.  829. 

28.  One  owning  a  growing  crop  in  an 
inclosure  in  which  another  has  land  which 
he  desires  to  pasture  is  not,  in  order  to 
minimize  damages,  bound  to  construct  a 
fence  to  keep  cattle  off  his  crop,  in  case 
the  latter  rents  the  pasturage  right  and 
cattle  are  turned  into  the  inclosure,  con- 
trary to  the  provisions  of  a  statute  mak- 
ing it  a  misdemeanor  to  turn  cattle  into 
an  inclosure  where  crops  are  growing. 
Shannon  v.  McNabb,  38:  244,  120  P.ac.  268. 
29  Okla.  829. 

2.  Dogs. 

(S^e  also  same  heading  in  Digest  L.R.A. 
1-70.J 

Injury  to  participant  in  race  by  presence  of 
dog  on  track,  see  Amusements,  10; 
Appeal  and  Ekrok,  1241;  Pleading, 
149-153,  279. 

Liability  for  injury  to  passenger  by  dog, 
see  Carriers,  202. 

Measure  of  damages  for  injuries  by  bite  of 
dog,  see  Damages,  362. 

Presumption  that  dog  will  not  display  vi- 
cious propensities  toward  keeper,  see 
Evidence,  648. 

Evidence  in  action  for  injury  by  dog  while 
trespassing,  see  Evidence,   1344. 

Municipal  liability  for,  see  Highways,  203; 
Municipal  Corporations,  388. 

Permitting  dog  to  run  at  large  without  muz- 
zle as  proximate  cause  of  injury,  see 
Proximate  Cause,  153. 

Sufficiency  of  evidence  to  overcome  presump- 
tion that  domesticated  animals  are  not 
vicious,  see  Trial,  161. 

Master's  liability  for  act  of  servant  in  set- 
ting dog  on  person,  see  Trial,  250. 

29.  A  turkey  is  an  animal  within  the 
meaning  of  a  statute  rendering  the  owner 
of  a  dog  liable  for  injury  inflicted  by  it, 
upon  any  sheep,  swine,  cattle,  or  other 
domestic  animal.  Holcomb  v.  VanZylen, 
44:  607,  140  N.  W.  521,  174  Mich.  274. 

( Annotated ) 

30.  A  person  in  control  of  a  dog  at  and 
near  a  race  track  who  permits  it  to  run  on 
the  track,  to  the  injury  of  a  participant  in 
the  race,  is  guilty  of  negligence  rendering 
him  liable  for  the  damages  thereby  sus- 
tained. McClain  v.  Lewiston  Interstate 
Fair  &  R.  Asso.  25:  691,  104  Pac.  1015,  17 
Idaho,  63. 

Liability  of  person  harboring. 
Relevancy  of  evidence  in  action  for  value  of 
sheep  killed  by  dog,  see  Evidence,  1809. 

31.  A  dog  which  is  harbored  and  kept 
about  the  family  residence  of  a  person  and 
is  by  him  permitted  to  follow  him  to  a  fair 
ground  and  be  with  or  about  him  at  the 
race  track  and  under  his  control  both  before 
Digest   1-52  L..R.A.(N.S.) 


and  after  a  race,  during  which  the  dog  ran 
on  the  track,  to  the  injury  of  a  participant 
in  the  race,  will  be  regarded  as  in  the  con- 
trol of  such  person  so  as  to  render  him  lia- 
ble for  the  injuries  done  by  such  animal. 
McClain  v.  Lewiston  Interstate  Fair  &  R. 
Asso.  25:  691,  104  Pac.   1015,  17  Idaho,  63. 

32.  Under  a  statute  making  the  owner  or 
keeper  of  a  dog  liable  for  the  value  of  sheep 
killed  by  it,  one  is  liable  for  sheep  killed  by 
a  dog  owned  by  his  daughter,  where  she 
lives  with  and  keeps  house  for  him,  and 
keeps  the  dog  with  his  knowledge  and  con- 
sent. Holmes  v.  Murray,  17:  431,  105  S.  W. 
1085,  207  Mo.  413.  (Annotated) 
Knovrledge  of  vicious  disposition. 
Sufficiency  of  evidence  of  notice  of  vicious 

character  of  dog,  see  Evidence,  2109. 
As  question  for  jury,  see  Trial,  161. 

33.  To  maintain  an  action  against  the 
owner  of  a  dog  for  injuries  inflicted  by  the 
dog,  it  is  not  necessary  that  the  same  in- 
jury should  have  been  committed  by  the 
dog  to  the  knowledge  of  its  owner,  but 
knowledge  that  the  disposition  of  the  dog 
is  such,  that  it  is  likely  to  commit  a  similar 
injury  to  that  complained  of  is  sufficient. 
Emmons  v.  Stevane  (N.  J.  Err.  &  App. )  24: 
458,  73  Atl.  544,  77  N.  J.  L.  570. 

(Annotated) 

34.  The  owner  of  a  dog  having  vicious 
propensities  which  are  directly  dangerous, 
is  bound  to  disclose  them,  if  known  to  him, 
to  a  bailee.  Emmons  v.  Stevane  (N.  J. 
Err.  &  App.)  24:  458,  73  Atl.  544,  77  N.  J. 
L.  570. 

35.  A  representation  made  to  the  bailee 
by  the  bailor  of  a  vicious  dog,  that  it  is 
ot  gentle  disposition,  when  the  bailor 
knows  to  the  contrary,  will  render  such 
bailor  liable  in  an  action  against  him  by 
the  bailee  for  injuries  inflicted  upon  the 
latter  by  the  dog, — at  least  in  the  absence 
of  proof  that  the  bailee  was  chargeable 
with  knowledge  of  its  true  disposition.  Em- 
mons V.  Stevane  (N.  J.  Err.  &  App.)  24: 
458,  73  Atl.  544,  77  N.  J.  L.  570. 

36.  The  owner  of  a  dog  is  not  liable  to 
a  person  who  is  bitten  by  the  dog,  unless 
he  knew  that  his  dog  was  accustomed  to 
bite  persons,  nor  then  if  the  injury  was 
carelessly  brought  about  or  contributed  to 
by  the  plaintiff.  Warrick  v.  Farley,  51 :  45, 
145  N.  W.  1020,  95  Neb.  565.  (Annotated) 
Contributory  negligence. 

See  also  supra,  36. 

37.  One  who  voluntarily  exposes  himself 
to  danger  by  attempting  to  separate  two 
fighting  dogs  engaged  in  a  combat  cannot  re- 
cover damages  from  the  owner  of  the  dog 
by  which  he  is  bitten,  because  he  has  him- 
self helped  to  create  the  condition  and  the 
danger.  Warrick  v.  Farley,  51:  45,  145  N. 
W.  1020,  95  Neb.  565. 

d.  Running  at  lar^e. 

(See   also    same   heading   in   Digest    L.R.A. 
1-10.) 

Liability   for    injury   by    stock    running   at 
large,  see  supra,  15-28. 


64 


ANIMALS,  I.  e— ANIMUS. 


Election  to  determine  whether  stock  shall 
be  permitted  to  run  at  large,  see  Elec- 
tions, 85;    Statutes,   359. 

Permitting  summary  killing  of  hogs  running 
at  large,  see  Constitutional  Law,  526. 

Jurisdiction  of  action  against  nonresident 
for  permitting  animal  to  run  at  large, 
see  Courts,  27. 

38.  Tlie  personal  liability  of  a  nonresi- 
dent owner  of  a  cow  for  permitting  it  to 
run  at  large  within  the  limits  of  a  munici- 
pal corporation,  contrary  to  the  provisions 
of  its  ordinances,  is  not  defeated  by  the  fact 
that  the  ordinances  also  provide  for  proceed- 
ing against  the  animal  in  rem  for  collection 
of  the  penalty.  Tutt  v.  Greenville,  33:  331, 
134  S.  W.  890,  142  Ky.  536. 

c.  Animals  with  infectious  diseases. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Regulation  of  infected  animals  as  affecting 

commerce,  see  Commerce,   16-20. 
Police   power    as    to,    see    Constitutional 

Law,  653,  654,  736. 
Subjecting    cows    to    tuberculine    test,    see 

Constitutional  Law,  736. 
Power    to    require    destruction    of    diseased 

cows,   see   Constitutional   Law,    653; 

Municipal  Corporations,  162. 
Damages    for    erroneously    indicating    that 

cattle    are    from    infected    district,    see 

Damages,  25. 
Sale  of  diseased  animals,  see  Damages,  50; 

New  Trial,  64;    Pleading,   84;    Sale, 

131,  132. 
Judicial  notice  as  to  quarantine  district  of 

southern  cattle,  see  Evidence,  35. 
Liability  of  lessee  placing  diseased  horse  in 

barn,  see  Landlord  and  Tenant,  104. 
Sufficiency  of  allegation  as  to,  see  Plead- 
ing, 282. 
Bringing  to  state,   in  violation   of  statute, 

horse  afflicted  with  glanders,   as  cause 

of  damage  to  purchaser,  see  Proximate 

Cause,  24. 

f.  Tax  on  dogs. 

(See  also  same  heading  in  Digest  L.R.j^. 
1-70.J 

Discrimination     in,     see     Constitutional 

Law,  232. 
Due  process  in,  see  Constitutional  Law, 

536. 
Police   power    as    to,    see    Constitutional 

Law,  655. 
Constitutionality    of    statute    levying    per 

capita  tax  on  dogs,  see  Constitutional 

Law,  655. 
Tax  on  doga  to  indemnify  owners  of  sheep 

killed     t'hereby,     see'  Statutes,     148; 

Taxes,  42. 
Compensation   of   collector  of  tax   on   dogs, 

see  Taxes,  192. 


ment  of  a  sum  which  shall  go  to  indemnify 
the  owners  of  sheep  which  may  be  injured 
by  dogs.  McQlone  v.  Womack,  17:  855,  HI 
S.  W.  688,  129  Ky.  274.  (Annotated) 

40.  A  dog  tax  need  not  be  uniform  ac- 
cording to  the  value,  when  assessed  by  a  mu- 
nicipality under  charter  authority  to  regu- 
late dogs  and  impose  a  tax  on  tliem,  since  it 
it  not  a  property  tax,  but  is  assessed  under 
the  police  power  for  purposes  of  regulation. 
Paxton  V.  Fitzaimmons,  39:  155,  97  N.  E. 
675,  253  111.  355.  (Annotated) 

//.  Cruelty  to;  criminal  liability  for 
injury  to. 

(See   also    same   heading   in   Digest   L.K.A. 
1-70.) 

Charitable  gift  to  aid  in  prevention  of  cruel- 
ty to,  see  Charities,  14. 

41.  A  constable  killing,  in  obedience  to 
a  valid  municipal  ordinance,  a  dog  running 
at  large  without  a  muzzle,  is  not  subject 
to  punisiiment  under  a  statute  providing 
a  penalty  for  wilfully  killing  dogs.  State 
V.  Clifton,  28:  673,  67  S.  E.  751,  152  N.  C. 
800.  (Annotated) 

42.  Dogs  are  within  the  meaning  of  a 
statute  providing  that  larceny  shall  embrace 
every  theft  which  unlawfully  deprives  an- 
other of  his  personal  property,  and  there- 
fore within  the  meaning  of  a  statute  mak- 
ing one  liable  to  punishment  who  shall  wil- 
fully kill  any  animal  of  another  which  it 
is  made  larceny  to  steal.  State  v.  Soward, 
11:  1117,  103  S.  W.  741,  83  Ark.  264. 

43.  Malice  is  the  gist  of  the  action  in  a 
statutory  prosecution  for  maliciously  kill- 
ing, maiming,  or  wounding  a  dog,  and  must 
be  established  beyond  a  reasonable  doubt  in 
order  to  justify  a  conviction.  State  v. 
Churchill,  19:  835,  98  Pac.  853,  15  Idaho, 
645.  (Annotated) 

44.  In  a  prosecution  for  maliciously  kill- 
ing, wounding,  or  maiming  dogs,  the  state 
must  either  show  that  the  defendant  enter- 
tained malice  against  the  owner  of  the  dogs, 
or  that  the  killing,  wounding,  or  maiming 
was  characterized  by  such  wanton  and  reck- 
less disregard  of  the  rights  of  property  in 
others  as  to  raise  the  presumption  of  malice 
from  the  manner  of  the  commission  of  the 
act.  State  v.  Churchill,  19:  835,  98  Pac.  853, 
15  Idaho,  645. 

45.  Malice  toward  the  owner  is  not  an 
ingredient  of  the  offense  created  by  a  stat- 
ute providing  for  the  punishment  of  every 
person  who  shall  wilfully  and  maliciously 
maim  a  horse  of  another,  but  it  is  sufficient 
that  the  maiming  is  wilfully  done  to  make 
the  animal  work.  People  v.  Tessmer,  41: 
433,   137   N.  W.   214,   171   Mich.   522. 

(Annotated) 


AmMTJS. 


39.  The  legislature  may  require  as  a  con-  |  Evidence  to  show  animus  between    murder 
dition  of  the  right  to  keep  a  dog  the  pay-  and  his  victim,  see  Evidence,  1914. 

Digest  1-52  Ii.R.A.(N.S.) 


ANNEXATION— ANTI-TRUST  LAW. 


65 


ANNEXATION. 

To  county,  see  Counties,  22,  23. 

To  city,  see  Municipal  Corporations,  I.  b. 


ANNUITIES. 


Annuity  insurance,  see  Bankruptcy,  67; 
Insurance,  90. 

Presumption  as  to,  see  Evidence,  558. 

Apportionment  of  income  upon  deatli  of  life 
beneficiary  between  distribution  peri- 
ods, see  Executors  and  Administra- 
tors, 81. 

Interest  on  fund  bequeathed  for  purchase  of 
annuity,  see  Interest,  49. 

Interest  on  arrearages  of,  see  Interest,  I.  e. 

Time  for  action  on  implied  promise  of  dev- 
isee to  pay,  see  Limitation  of  Ac- 
tions, 244. 

Limitation  period  for  enforcement  of  lien 
for,  on  property  devised,  see  Limita- 
tion OF  Actions,  269. 

Parties  to  proceeding  to  determine  whether 
legatee  is  entitled  to  principal  sum 
devised  for  purchase  of,  see  Parties, 
175. 

Effect  on  rights  of  remainderman,  of  direc- 
tion to  trustee  to  whom  a  term  of  years 
is  devised,  to  pay  certain  annuities, 
see  Perpetuities,  20. 

Validity  of  perpetual  annuity  to  charity, 
see  Perpetuities,  38. 

Annexing  condition  of  payment  of,  to  devise, 
see  Wills,  381. 

Effect  of  death  of  proposed  annuitant  before 
purchase  of  annuity,  see  Wills,  395. 

1.  The  beneficiary  is  entitled  to  receive 
the  principal  of  a  fund  in  due  course  of 
administration,  where  the  will  directs  the 
laying  out  by  trustees  of  a  certain  sum  in 
the  purchase  of  an  annuity  for  him.  Par- 
ker V.  Cobe,  33:  978,  94  N.  E.  476,  208  Mass. 
260.  (Annotated) 

2.  In  the  absence  of  words  defining  the 
date  of  its  commencement,  a  testamentary 
annuity  ought  in  all  cases  to  commence  from 
testator's  death.  Re  Robbins,  2  B.  R.  C. 
903,  [1907]  2  Ch.  8.  Also  reported  in  76 
L.  J.  Ch.  N.  S.  531,  96  L.  T.  N.  S.  755. 

3.  An  annuity  provided  by  a  father  for 
the  widow  of  his  son  to  be  paid  quarter- 
ly, which  is  not  expressly  stated  to  be  for 
support  and  maintenance,  is  not  apportion- 
able,  and  therefore  her  a,dministrators  can- 
not require  payment  to  them  of  the  ac- 
crued amount  in  case  she  dies  between 
two  quarterly  periods.  Brown  v.  Keach, 
29:  775.  76  Atl.  846,  112  Md.  398. 

(Annotated) 

4.  Under  a  trust  to  ascertain  and  di- 
vide the  net  income  of  an  estate  at  yearly 
intervals,  the  estate  of  one  dying  before  a 
division  period  is  not  entitled  to  an  allot- 
ment when  the  period  arrives.  Green  v. 
Bissell,  8:  loii,  65  Atl.  10.56,  79  Conn.  547. 

5.  The  amount  to  which  personal  repre- 
sentatives of  one  for  whom  a  testator  has 
directed  an  annuity  of  a  certain  sum  to  be 
Digest   1-52  L.R.A.(N.S.) 


purchased,  but  who  died  before  such  pur- 
chase was  made,  are  entitled  is  such  a  sum 
as  at  the  date  of  the  death  of  the  testator 
would  have  purchased  the  annuity,  and  not 
such  a  sum  as  would  have  purchased  it  at 
the  time  when  the  legacies  became  payable. 
Re  Robbins,  2  B.  R.  C.  903,  [1907]  2  Ch.  8. 
Also  reported  in  76  L.  J.  Ch.  N.  S.  531,  96 
L.  T.  N.  S.  755. 


ANNUITY  INSURANCE. 

Right  of  trustee  in  bankruptcy  to  set  aside 
annuity  insurance,  see  Bankruptcy, 
67. 

Validity  of  annuity  insurance  contract,  see 
Insurance,  90. 


ANNULMENT. 


Of  marriage,  see  Marriage,  IV, 
Of  attempted  extinguishment  of  mortgage, 
see  Mortgage,  82. 


ANSV;'ER. 

See  Pleading,  III. 


ANTENUPTIAL    CONTRACT. 

See  Husband  and  Wife,  II.  i. 


ANTICIPATED    INJURY. 

Injunction  to  prevent,  see  Injunction,  15- 
18. 


♦  >» 


ANTICIPATORY  BREACH. 

Of  building  contract,  see  Contracts,  728a. 

♦-•-» 

ANTI-TETANUS   SERUM. 

Death  by  administration  of,  as  accident,  see 
Insurance,  744. 


ANTI-TRUST  LAW. 

Combinations  in  violation  of,  generally,  see 
Monopoly  and  Combinations,   II. 

Right  of  state  to  appeal  in  prosecution  un- 
der, see  Appeal  and  Error,  48,  49. 

Scope  of  review  on  appeal  to  Federal  Su- 
preme Court  in  prosecution  under,  see 
Appeal  and  Error,  58. 


56 


APARTMENT  HOUSE— APPEAL  AND  ERROR. 


Delegation  of  power  by,  see  Constitutio.nal 
Law,  86. 

Due  process  in  investigating  violations  of, 
see  Constitutional  Law,  571. 

Subpoenaing  witnesses  to  testify  to  knowl- 
edge of  violation  of,  see  Constitution- 
al Law,  571. 

Jurisdiction  of  suit  to  restrain  violation  of, 
see  Courts,  264. 

Who  entitled  to  action  for  violation  of,  see 
Pabties,  3. 

Effect  of  partial  invalidity,  see  Statutes, 
75. 

Repeal  of,  see  Statutes,  139,  331. 

Error  in  directing  verdict  for  defendant 
charged  with  violation  of,  see  Tbial, 
777. 

Privilege  of  witness  subpoenaed  to  testify  as 
to  violations  of,  see  Witnesses,  132, 
133. 


APARTMENT  HOUSE. 

Erection    of,    as   breach   of    restrictions    in 

deed,  see  Covenants  and  Conditions, 

74. 
Landlord's  duty  to  keep  heating  apparatus 

in  repair,  see  Landlord  and  Tenant, 

164,  165. 


APOLOGY. 


As  defense  to  action  for  battery,  see  As- 
sault AND  Battery,  34. 


APPEAL  AND  ERROR. 

7.  Appellate  jurisdiction  generally, 
1-55. 

a.  In   general,    1—19. 

b.  Finality  of  decision,  20—45. 

c.  Criminal  cases,  46—49. 

d.  Modes  of  review,  50—55. 
II.  Jurisdiction  of  particular  courts, 

56-79. 
a.  Of  Supreme  Court  of  United 
States,  56-67. 

1.  In  general,  56—59. 

2.  Over    state    courts,    60— 

67. 
h.  Of  circuit  courts  of  appeals, 

6S. 
c.  Of  state  courts,  69—79. 

1.  Generally,  69—75. 

2.  Over  constitutional  ques- 

tions;  validity  of  stat- 
utes,   76-78. 

3.  Over  questions  of  title. 

4.  Amount     necessary     for 

jurisdiction,    79. 
III.  Transfer  of  cause;  parties,   80— 
149. 
a.  Right  to  transfer,  80—98. 
h.  Effect;   subsequent   proceed- 
ings  in   court    below,    99— 
111. 
Digest  1-52  L.R.A.(N.S.) 


///. — continued. 

c.  rarties,    112-115. 

d.  Mode;     conditions;     regula- 

tions, 116—126. 

e.  Citation;  notice;  appearance, 

127-132. 

f.  Time,    133—140. 

g.  Security,   141—149. 

IV.  Record    and    case    in    appellate 
court,  150—292. 

a.  In  general,    150—156. 

b.  What   should    be   shown    by, 

157-170. 

c.  Contradictions  in,    171. 

d.  Amending ;  perfecting,  172— 

181. 

e.  Affidavits. 

f.  Evidence,  182—194. 

g.  Stenographer's   notes. 

h.  Instructions,    195,     196. 

i.  Findings,  197—200. 

j.  Opinions,  201. 

Tc.  Motions    and    orders,     202, 

203. 
I.  Certificates,   204-207. 
m.  Abstracts,    208—213. 
n.  Case       made;       statements, 

214-221. 
o.  Bill  of  exceptions,  222—257. 

1.  In  general,  222—228. 

2.  Sufficiency;  what  should 

be  presented  by,   229— 
250. 

3.  Signing;  settling;   prac- 

tice;        authentication, 
251-253. 

4.  Time    for,    254—257. 

p.  Assignments  of  error;  join- 
der in  error,  257a— 286. 

1.  In  general;  necessity  of, 

257a-264. 

2.  Sufficiency;  definiteness, 

265—281. 
8.  Cross  errors,  282—286. 
q.  Waiver     of    assignments    of 

ei'ror. 
r.  Briefs,  287—292. 
V.  Objections  and  exceptions;  rais- 
ing     questions      in      lower 
court,  293—386. 
a.  Definiteness;  sufficiency, 

293-337. 

1.  In  general,  293—307. 

2.  To  evidence,  308—318. 

a.  Admission    of,    308- 
318. 

b.  Exclusion. 

3.  To     instructions,     319— 
337. 

ft.  Necessity      for      exceptions, 
338—358. 

c.  Time    for    exceptions,    359— 
364. 

d.  Raising  questions  by  motion 
or  other  mode,  365—386. 

VI.  Preliminary  motions;  dismissal; 

abatement;     abandonment, 

387-402. 
a.  In  general,   387-389. 
ft.  Grounds  for  dismissal,  390— 

402. 


APPEAL  AND  ERROR. 


67 


VIJ.  Hearing       and        determination, 
4:03-1561. 

a.  In     general;     rules     of     de- 

cision,   403—4:15. 

b.  Who    may    complain,     416— 

423. 

c.  Evidence;  amendments; 

trial  de  novo,  424—431. 

d.  Presumptions,   432—479. 

e.  What    reviewable    generally, 

480-516. 

f.  Decisions  in  favor  of  party, 

or  not  affecting  him,  517— 
526. 

g.  Objections  as  to  which  party 

is    estopped,    527—547. 

1.  In  general,  527—534. 

2.  By  requesting  or  obtain- 

ing ruling  or  decision, 
535-547. 
h.  Interlocutory     matters;     or- 
ders,    etc.,     not     appealed 
from,  548-556. 
i.  Discretionary  matters,    557— 
686. 

1.  In   general;   costs;    con- 

tempt,  557-576. 

2.  Continuance  or  adjourn- 

ment,   577-583. 

3.  As  to  pleadings;  indict- 

ment,   584-598. 

4.  As     to      evidence ;     tvit- 

nesses;  physical  exam- 
ination,  599—628. 

5.  Injunction;        receivers, 

629-638. 

6.  Conduct    of    trial;    jury, 

639-662. 

7 .  Vacation    or  msuspension 

of  j^idgment  or  verdict ; 
new  trial,   663—686. 
j.  Questions  not  raised   below, 
687-806. 

1.  In  general,    687—705. 

2.  Jurisdiction,    706—710. 

3.  Causes  of  action  or  de- 

fenses ;     new     theories, 
711-749. 

4.  As  to  pleadings;  indict- 

ments,   etc.,    750-768. 

5.  As  to  evidence ;  witness- 

es; variance,  769—789. 

6.  As  to  jury. 

7.  As   to  instructions ;  ques- 

tions submitted  to  jxiry, 
790-799. 
S.  As  to  judgment,  verdict, 
etc.,    800—806. 
Tc.  Errors  waived  or  cured  be- 
loiv,    807-873. 

1.  In  general,  807-817. 

2.  As    to    pleadings,    818— 

827. 

3.  As  to  evidence,  828—844. 

4.  As  to  instructions,  845— 

864. 

5.  Tdhing   case  from  jury, 

865-872. 

6.  Refusal   to   change   ven- 

ue, 873. 
I.  Review  of  facts,   874—1020. 
1.  In  general,  874—880. 
Digest   1-52  I,.R.A.(N.S.) 


VII.  I — continued. 

2.  Of  verdict,  881-949. 

a.  In      general,      881 — 

932. 
h.  As    to   damages   and 

values,    933—949. 

3.  Of     findings     of     court, 

950-1005. 

a.  In      general,      950 — 

996. 

b.  In        equity,        997— 

1004. 

c.  Where  jury  has  been 

waived,    1005. 

4.  Of   findings    by    referee, 

commission,  etc.,  1006- 
1018. 

5.  On   appeal   from   appel- 

late court,  1019,  1020. 
m.  What     errors     wan^ant     re- 
versal,  1021—1561. 

1.  In  general,  1021—1053. 

2.  As  to  pleadings,    1054 — 

1088. 

3.  As    to    evidence,    1089— 

1274. 

a.  In    general;    errone- 

ous admis- 
sions, 1 089— 
1199. 

(1)  In  general ;  va- 

rious particu- 
lar matters,. 
1089-1130. 

(2)  Immate rial  ; 

admitted  or 
uncontrovert- 
ed  facts, 
1131-1155. 

(3)  Facts  otherwise 

proved, 
1156-1177. 

(4)  Witnesses    and 

their  exami- 
nation, 
1178-1183'. 

(5)  Error  cured  by 

instruct  io  n  , 
verdict,  etc., 
1184-1199. 

b.  Erroneous  exclusion, 

1200-1268. 

c.  Refusal  to  strike  out, 

1269,    1270. 

d.  Variance,    1271. 

e.  In  cases  tried  with- 

out     jury,      1272— 
1274. 

4.  As  to  instructions,  1275— 

1439. 
a.  Instructions      given, 
1275-1395. 

(1)  Generally  ; 

miscellatieous 
matters, 
1275-1337. 

(2)  As      to      negli- 

gence, 1338— 
1354. 

(3)  As  to  damages, 

1355-1371. 


58 


APPEAL  AND  ERROR. 


VII.  m,  4,  a — continued. 

(4)  As   to   witness- 

es, 1372- 

1371. 

(5)  Vpon  facts  and 

evidence, 
137S-1305. 

b.  Failure  or  refusal  to 

instruct,  1396— 

1438. 

c.  Modification    of    in- 

struction, 1439. 
5.  Argument,     reniarJcs    or 

conduct       of       counsel, 

1440-1460. 
O.  RemarTcs   or  conduct   of 

judge,   1461-1472. 

7.  As    to   jury;    conduct    of 

trial,    1473-1528. 

a.  In    general,     1473— 

1490. 

b.  Sumtnonlng  and  se- 

lection      of      jury, 
1491-1502. 

c.  Conduct  of,  or  inter- 

ference   ivith    jury, 
1503-1508. 

d.  Submission      of      is- 

sues; directing  ver- 
dict,   1509-1528. 

8.  As    to    findings,    verdict, 

or     judgment,      1 529— 
1561. 
n.  Effect  of  matters   occurring 
after  decision  below. 

VIII.  Judgment,   1562-1668. 

a.  In  general,  1562—1578. 

b.  Rendering     modified     judg- 

ment, 1579—1603. 

c.  Remanding;     granting     new 

trial,   1604-1632. 

d.  Costs;  interest;  damages  for 

delay,   1633—1641. 

e.  Effect     of    decision;     subse- 

quent   proceedings,    1 642— 
1667. 

f.  Correction,   1668. 
IX.  Rehearing,  1669,  1670. 

X.  Liability  on  appeal  bond,    1671, 
1672. 

Effect  of  death  pending,  to  abate  proceed- 
ing, see  Abatement  and  Revival,  22. 

From  conviction  for  contempt,  see  Action 
OK  Suit,  67 ;  Contempt,  79. 

Sequestering  books  pending  appeal  from  con- 
tempt order  for  refusing  to  produce 
them,   see    Constitutional   Law^,   364. 

Waiver  of  defect  in,  by  appearance,  see  Ap- 
pearance, 12. 

Effect  of  death  pending,  of  one  of  several 
attorneys  who  have  agreed  to  share  con- 
tingent fee,  see  Attorneys,  63. 

For  certified  question,  see  Cases  Certified. 

Existence  of  right  to  appeal  as  bar  to  cer- 
tiorari, see  Certiorari,  10-12. 

Attempt  to  confer  upon  courts  by  means  of 
appeal  jurisdiction  over  questions  of 
governmental  or  administrative  policy, 
see  Constitutional  Lavp,  125. 

Due  process  as  to,  see  Constitutional 
Law,  544-547. 

Digest  1-52  I..B.A.(N.S.) 


Statute  as  to  burden  of  proof  on  appeal 
from  orders  of  railway  commission,  see 
Constitutional  Law,  619. 

Riglit  of  appellate  court  to  prescribe  rules 
for  government  of  trial  court,  see 
Courts,  9. 

Delay  after  expiration  of  period  allowed  for 
perfecting  of,  in  compelling  convict  to 
begin  term  of  service,  see  Criminal 
Law,  257. 

Validity  of  contract  executed  by  convict 
pending  appeal  from  conviction,  see 
Deeds,  21. 

In  eminent  domain  proceedings,  see  Emi- 
nent Domain,  II.  d. 

Effect  of  right  to  have  judgment  reviewed 
on  appeal  on  right  to  relief  in  equity, 
see  Equity,  56;   Injunction,  289. 

Judicial  notice  of,  see  Evidence,  12,  13. 

Presumption  that  judgment  has  not  been 
reversed,  see  Evidence,  95. 

Sufficiency  of  evidence  to  show  unreason- 
ableness of  order  of  railway  commission 
on  appeal  therefrom,  see  Evidence, 
23,  39. 

Effect  of  failure  to  pursue  remedy  by,  on 
right  to  habeas  corpus,  see  Habeas 
Corpus,  40,  74. 

Substituting  writ  of  habeas  corpus  for,  see 
Habeas  Corpus,  7. 

In  habeas  corpus  proceeding  generally,  see 
Habeas  Corpus,  72. 

Appeal  to  gas  commissioners  where  alder- 
men fail  to  act  on  petition  for  location 
of  pipe  line,  see  Highways,  47. 

From  commitment  of  person  to  hospital  for 
insane,  see  Incompetent  Persons,  19. 

Injunction  to  restrain  enforcement  of  judg- 
ment wjiere  law  court  refuses  stay 
pending   appeal,    see   In.tunction,    277. 

By  beneficiary  of  insurance  from  conclusion 
of  medical  director,  see  Insurance, 
613. 

Costs  on  appeal  as  covered  by  employers' 
liability  insurance,  see  Insurance,  921, 
922. 

Liability  of  indemnity  insurance  company 
conducting  litigation  for  expenses  of, 
see  Insurance,  922. 

Effect  of  failure  to  appeal  from  order  over- 
ruling motion  to  set  aside  nonsuit,  see 
Judgment,   113. 

Parent's  right  to  appeal  from  order  ad- 
judging child  to  be  a  delinquent,  see 
Judgment,  242. 

Original  suit  in  equity  to  impeach  judg- 
ment where  right  to  appeal  therefrom 
has  been  lost,  see  Judgment,  390. 

From  justice's  judgment,  see  .Justice  of 
the  Peace,  IV. 

Running  of  limitations  against  unappealed 
judgment,  see  Limitation  of  Actions, 
219. 

Lease  of  property  from  successful  litigant 
pending  appeal,  see  Lis   Pendens,   10. 

Sufficiency  in  appellate  court  of  pleading 
in  justice's  court,  see  Pleading,  22. 

As  adequate  remedy  which  will  prevent  is- 
suance of  writ  of  prohibition,  see  Pbo- 
HIBITION,  3,  6. 


APPEAL  AND  ERROR,  I.  a. 


59 


Effect  of  removal  to  Federal  court  after  ap- 
peal to  state  court,  see  Removal  of 
Causes,  32. 

As  to  bill  of  review,  see  Revikvp^. 

Statute  denying  appeal  in  proceeding  to  con- 
test local  option  election,  see  Statutes, 
181. 

Retrospective  construction  of  statute  ex- 
tending right  of,  sec  Statutes,  295, 

From  tax  assessment,   see  Taxes,   198-201. 

Effect  of  dissolution  of  corporation  on  writ 
of  error  sued  out  against,  see  Corpo- 
BATIONS,  392. 

I.  Apjicllate  jurisdiction  generally. 

a.  In   general, 

{Bee  also  Division  I.  in  Digest  L.R.A.  1-70.) 

1.  A  grant  of  appellate  jurisdiction  im- 
plies that  there  is  included  in  it  the  power 
necessary  to  its  efl'ective  exercise  and  to 
make  all  orders  that  will  preserve  the  sub- 
ject of  the  action  and  give  effect  to  the 
final  determination  of  the  appeal.  Kjel- 
lander  v.  Kjellander,  45:  943,  132  Pac.  1170, 
90  Kan.  102. 

2.  A  petition  in  error  to  review  a  judg- 
ment or  final  order  of  an  inferior  court  is  a 
separate  and  independent  proceeding.  Lever- 
ing V.  National  Bank,  43:611,  100  N.  E. 
322,  87  Ohio  St.  117. 

3.  The  legislature  may  make  the  juris- 
diction of  the  trial  court  final  when  once 
established  in  proceedings  for  contesting 
local  option  elections,  notwithstanding  the 
Constitution  provides  that  the  supreme 
court  is  vested  with  power  to  issue  writs 
of  review  to  the  complete  exercise  of  its 
appellate  and  revisory  jurisdiction,  since 
the  determination  of  election  contests  is 
one  of  legislative,  rather  than  of  judicial, 
power.  State  ex  rel.  McCallum  v.  Superior 
Ct.   44:  1209,   129   Pac.   900,   72   Wash.    144. 

(Annotated) 

4.  An  order  allowing  an  amendment  of 
the  complaint  after  judgment,  to  show  ju- 
risdiction, although  void,  is  appealable. 
Holton  V.  Holton,  48:  779,  129  Pac.  532,  64 
Or.  290. 

5.  A  writ  of  error  does  not  lie  from  an 
order  striking  out  a  demurrer  as  frivolous, 
and  not  upon  the  ground  that  it  is  irregular 
or  defective.  King  v.  Morris  (N.  J.  Err.  & 
App.)    14:  439,  68  Atl.  162.  74  N.  J.  L.  810. 

C.  The  installation  by  a  gas  company 
of  a  single  meter  in  an  apartment  house, 
and  the  connection  of  the  building  with  its 
mains,  after  the  dismissal  of  a  petition  for 
mandamus  to  compel  it  to  install  a  meter 
in  each  apartment,  is  not  a  termination  of 
the  controversy,  which  will  destroy  the 
jurisdiction  of  the  appellate  court.  State 
ex  rel.  Hallett  v.  Seattle  Lighting  Co.  30: 
492,  110  Pac.  799,  60  Wash.  81. 

7.  No  appeal  lies  from  a  judgment  re- 
fusing to  establish  a  mortgage  lien  and  a 
lien  for  advances  made  and  taxes  paid,  where 
the  statute  allows  appeals  only  in  case  a 
money  judgment  is  entered  or  the  judgment 
relates  to  a  franchise  or  freehold.  Hallett  v. 
Digest  1-52  L.R.A.(N.S.) 


Alexander,  34:  328,   114   Pac.   490,  50   Colo. 
37. 

8.  A  statutory  provision  allowing  an 
appeal  from  any  special  order  made  after 
a  final  judgment  applies  to  an  order  over- 
ruling a  motion  to  vacate  the  judgment 
and  render  one  consistent  with  answers  re- 
turned by  the  jury,  notwithstanding  the 
statute  allowing  such  motions  provides  only 
that  an  order  "granting"  such  motion  may 
be  reviewed  on  appeal.  Bond  v.  United 
Railroads,  48:  687,  113  Pac.  366,  159  Cal. 
270. 

9.  No  absolute  right  of  appeal  from  an 
order  or  judgment  of  a  probate  court  is 
granted  by  article  5  of  the  Idaho  Constitu- 
tion, either  by  §  13  thereof,  prohibiting  the 
legislature  from  depriving  the  judicial  de- 
partment of  any  power  or  jurisdiction  right- 
fully pertaining  thereto,  and  requiring  that 
the  legislature  provide  a  proper  system  of 
appeals,  or  by  §  20  thereof,  providing  that 
the  district  court  shall  have  original  juris- 
diction in  all  cases,  both  at  law  and  in  equi- 
ty, and  such  appellate  jurisdiction  as  is 
conferred  by  law;  but  on  the  contrary,  the 
discretion  is  granted  thereby  to  the  legis- 
lature either  to  confer  or  withhold  the  right 
of  appeal  in  any  or  all  matters  coming  be- 
fore the  probate  court.  Re  Sharp,  18:  886, 
96  Pac.  563,  15  Idaho,  120. 

10.  A  statute  permitting  an  appeal  to 
the  circuit  court  by  a  railroad  company  in 
a  condemnation  proceeding  upon  paying  into 
court  the  damages  and  costs  assessed,  pend- 
ing which  it  may  take  possession  of  the  land, 
will  permit  an  appeal  to  the  court  of  ap- 
peals upon  the  same  terms,  so  that  the  pay- 
ment of  damages  and  taking  possession  of 
the  property  will  not  be  regarded  as  an 
abandonment  of  the  later  appeal.  Madison- 
ville,  H.  &  E.  R.  Co.  v.  Ross,  13:  420,  103 
S.  W.  330,  126  Ky.  138. 

11.  An  order  for  an  inspection  and  copy 
of  documents,  under  a  statute  permitting  the 
granting  of  such  an  order,  is  reviewable  aft- 
er judgment,  as  an  intermediate  order  in- 
volving the  merits.  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Burks,  18:  231,  96  Pac.  950,  78  Kan. 
515. 

12.  An  order  sustaining  a  demurrer  to 
a  petition  to  contest  a  local-option  election 
is  a  determination  of  the  merits,  from  which 
no  appeal  can  be  taken,  under  a  statute  pro- 
viding that  the  trial  court  shall  have  final 
jurisdiction  to  hear  and  determine  the  merits 
of  such  cases.  Saylor  v.  Duel,  19:  377,  86 
N.  E.  119,  236  111.  429. 

13.  A  provision  in  a  local-option  law  that 
the  county  court  shall  have  final  jurisdic- 
tion to  hear  and  determine  the  matter  of 
contested  elections  under  the  statute  makes 
inapplicable  a  general  statute  providing  for 
appeals  in  contested-election  cases,  and  pre- 
vents an  appeal  in  such  cases.  Saylor  v. 
Duel,  19:  377,  86  N.  E.  119,  236  111.  429. 

14.  The  appellate  court  cannot  dispose  of 
the  merits  of  a  case  upon  appeal  of  an  equi- 
ty cause,  of  the  merits  of  which  the  nisi 
prius  court  had  no  jurisdiction.  Kelly  v. 
Conner,  25:  201,  123  S.  W.  622,  122  Tenn. 
339. 


60 


APPEAL  AND  ERKOR,  1.  b. 


15.  An  appeal  from  an  order  dismissing 
a  bill  seeking  an  injunction  against  the  sale 
under  execution  of  property  alleged  to  be 
exempt,  and  directing  the  sheriff  to  pro- 
ceed with  the  sale,  after  refusing  to  en- 
large the  preliminary  injunction  so  as  to 
extend  the  time  of  its  operation,  is  not 
prevented  by  a  statute  denying  an  appeal 
from  a  refusal  of  the  court  to  enlarge  an 
injunction.  Neblett  v.  Shackleton,  32:  577, 
69  S.  E.  946,  111  Va.  707. 

16.  A  plaintiff  who  actively  acquiesces 
in  an  appeal  by  defendant  from  an  order  of 
the  trial  court  allowing  an  amendment 
waives  any  estoppel  against  such  appeal 
which  may  have  existed  by  reason  of  the  ac- 
ceptance and  retention  by  defendant  of 
money  paid  pursuant  to  such  order.  Todd  v. 
Bettingen,  18:  263,  113  N.  W.  906,  102  Minn. 
260. 

Habeas  corpns. 

17.  An  appeal  does  not  lie  from  an  order 
in  habeas  corpus,  discharging  a  party  held 
for  a  criminal  offense.  Wisener  v.  Burrell, 
34:  755,  28  Okla.  546.  (Annotated) 

18.  No  practical  purpose  can  be  sub- 
served by  the  prosecution  by  the  state  of 
an  appeal  from  an  order  discharging  a  pris- 
oner from  custody  under  a  writ  of  habeas 
corpus.  Ex  parte  Williams,  22:  238,  63  S. 
E.  108.  149  N.  C.  436. 

19.  An  appellate  court  may  treat  a 
habeas  corpus  proceeding  to  secure  the  re- 
lease of  one  in  custody  under  a  body  ex- 
ecution as  a  motion  to  recall  the  execution 
and  discharge  the  defendant,  a  decision  upon 
which  would  be  appealable.  Ledford  v.  Em- 
erson, 10:  362,  55  S.  E.  969,  143  N.  C.  527. 

ft.  Finality  of  decision. 

(See   also   same   heading  in  Digest   L.R.A. 
1-10.) 

20.  An  order  denying  a  motion  for  judg- 
ment notwithstanding  the  verdict  is  non- 
appealable. Houston  v.  Minneapolis  St.  P. 
&  S.  Ste.  M.  R.  Co.  46:  589,  141  N.  W.  9C4, 
25  N.  D.  469. 

21.  An  order  granting  a  nonsuit  is  ap- 
pealable. Seguskv  v.  Williams,  36:  230,  71 
S.  E.  971,  89  S.  C.  414. 

22.  An  order  refusing  to  set  aside  a  ver- 
dict upon  an  issue  directed  by  the  chancery 
court  to  be  tried  at  law  in  an  action  to  quiet 
title  to  real  estate  is  appealable  under  a 
statute  giving  a  right  to  the  issue,  and  mak- 
ing the  verdict  a  final  determination  of  the 
question  submitted  so  long  as  it  is  permitted 
to  stand.  Brady  v.  Cartaret  Realty  Co. 
(N.  J.  Err.  &  App.)  8:  866,  64  Atl.  1078,  70 
N.  J.  Eq.  748. 

23.  An  order  in  a  proceeding  to  compel 
the  officers  of  a  corporation,  defendant  in 
an  action,  to  produce  books  and  papers  for 
inspection  before  trial,  made  upon  petition 
and  answer  in  the  nature  of  a  demurrer 
thereto,  directing  such  production,  is  final, 
so  as  to  be  subject  to  review  by  writ  of 
error,  where  the  penalty  for  noncompliance 
is  not  a  proceeding  for  contempt,  but  the 
entry  of  a  default  judgment  against  def end- 
Digest  1-52  I..R^^N.S.) 


I  ant  in  the  principal  action.  Cassatt  T. 
'  Mitchell  Coal  &  Coke  Co.  10:  99,  150  Fed. 
■  32,  81  C.  C.  A.  80. 

24.  The  judge  of  the  trial  court  may 
take  jurisdiction  of  an  appeal  from  the 
action  of  the  clerk  in  taking  jurisdiction  of 
a  supplementary  proceeding  while  the  ap- 
peal is  pending  in  a  similar  proceeding  be- 
tween the  same  parties.  Ledford  v.  Emer- 
son, 10:  362,  55  S.  E.  969,  143  N.  C.  527. 

25.  A  decree  awarding  suit  money  and 
alimony  against  the  guardian  of  defendant 
in  a  divorce  suit,  who  appears  to  defend  on 
behalf  of  his  ward,  is  within  the  provision 
of  a  statute  authorizing  appeal  from  a  final 
decision.  Sturgis  v.  Sturgis,  15:  1034,  93 
Pac.  696,  51  Or.  10. 

26.  An  order  denying  a  motion  to  set 
aside  service  of  process  made  after  entry 
of  a  default  judgment  is  within  a  statute 
allowing  an  appeal  from  a  final  order  af- 
fecting a  substantial  right,  made  upon  a 
summary  application  in  an  action  after 
judgment.  Rix  v.  Sprague  Canning  Mach. 
Co.  52:  583,  147  N.  W.  1001,  157   W  is.  572. 

27.  No  appeal  lies  from  an  order  refus- 
ing to  dismiss  an  action  brought  by  the 
state  to  determine  which  of  two  sets  of  trus- 
tees is  entitled  to  administer  a  sectarian 
school,  but  the  entry  of  appeal  may  be  treat- 
ed as  an  exception  upon  appeal  from  the 
final  judgment.  State  ex  rel.  Kerr  v.  Hicks, 
33:  529,  70  S.  E.  468,  154  N.  C.  265. 

28.  In  proceedings  to  register  a  land 
title,  under  Minnesota  Rev.  Laws  1905, 
chap.  65  (§§  3370-3451),  commonly  known 
as  the  Torrens  law,  no  appeal  lies  from  a 
denial  of  a  defendant's  application  for  a 
jury  trial,  nor  from  an  order  denying  a  de- 
fendant's motion  to  dismiss  the  appli- 
cation. Peters  v.  Duluth,  41:  1044,  137  N. 
W.  390,  119  Minn.  96. 

As  to  pleadings. 

29.  A  judgment  on  demurrer  is  a  final 
judgment,  reviewable  on  error.  Tomlinson 
v.  Armour  &  Co.  (N.  J.  Err.  &  App.)  19: 
923,  70  Atl.  314,  75  N.  J.  L.  748. 

30.  Appeal  lies  from  an  order  overruling 
a  demurrer  to  a  bill  in  equity.  Darcev  v. 
Bayne,  10:  863,  66  Atl.  434,  105  Md.  365. 

31.  Permitting  defendants  in  default  to 
file  pleadings  after  a  reversal  of  a  judg- 
ment on  demurrer  of  part  of  the  defend- 
ants, because  the  petition  fails  to  state  a 
cause  of  action,  before  any  amendment  of 
the  petition,  is  not  a  final  judgment  from 
which  a  writ  of  error  will  lie.  Tate  v. 
Goode,  33:  310,   70  S.   E.   571,   135  Ga.   738. 

32.  An  order,  after  judgment,  attempt- 
ing to  amend  the  complaint  to  show  juris- 
diction, is  within  a  statute  providing  that, 
for  the  purpose  of  review,  a  final  order  at- 
fecting  a  substantial  right,  and  made  after 
judgment,  shall  be  deemed  a  judgment. 
Holton  V.  Holton,  48:  779,  129  Pac.  532,  64 
Or.  290. 

As  to  nexT  trial;  affecting  judgment. 

33.  The  granting  or  denying  of  a  motion 
for  a  new  trial  is  not  a  final  order  from 
which  an  appeal  lies.  First  Nat.  Bank  v. 
McCullough,  17:  1 105,  93  Pac.  366,  50  Or. 
508. 


APPEAL  AND  ERROR,  I.  c,  d. 


61 


34.  An  order  vacating  a  judgment  and 
granting  a  new  trial  is  not  within  the  pro- 
vision of  a  statute  allowing  an  appeal  from 
a  final  judgment  or  order.  Nelson  v.  Mee- 
han,  12:  374,  155  Fed.  1,  83  C.  C.  A.  597. 

35.  An  appellate  court  has  jurisdiction 
of  an  appeal  from  an  order  setting  aside  a 
judgment  and  granting  a  new  trial,  when 
the  trial  court,  in  so  doing,  acted  in  excess 
of  its  authority.  Nelson  v.  Meehan,  12: 
374,  155  Fed.  1,'  83  C.  C.  A.  597. 

As  to  costs. 

36.  A  decree  for  such  costs  as  are  dis- 
cretionary is  not  appealable;  but  a  decree 
for  costs  not  in  the  discretion  of  the  court 
is  appealable  under  W.  Va.  Const,  art.  8, 
§  3,  if  they  amount  to  more  than  $100. 
Nutter  V.  Brown,  i:  1083,  52  S.  E.  88,  58 
W.  Va.  237. 

37.  Although  an  appeal  will  not  ordina- 
rily lie  from  a  decree  for  costs  only  in  a 
chancery  suit,  there  are  exceptions  to  the 
rul3,  depending  on  the  question  of  the  dis- 
cretionary power  of  the  trial  court  as  to 
costs.  Nutter  v.  Brown,  1 :  1083,  52  S.  E. 
88,  58  W.  Va.  237.  (Annotated) 

38.  Extraordinai-y  costs,  such  as  allow- 
ances of  expenses  and  compensation  of  re- 
ceivers, either  as  between  the  receiver  and 
the  fund  in  court  and  parties,  or  as  between 
party  and  party,  are  not  discretionary,  and 
a  decree  respecting  such  costs  is  appealable. 
Nutter  V.  Brown,  i:  1083,  52  S.  E.  88,  58 
W.  Va.  237. 

39.  A  decree  alllowing  expenses  and  com- 
pensation of  a  receiver  out  of  the  fund, 
with  a  provision  that  it  shall  ultimately  be 
paid  to  the  party  entitled  to  the  fund  by 
his  adversary,  is  appealable.  Nutter  v. 
Brown,  i:  1083,  52  S.  E.  88,  58  W.  Va.  237. 
As  to  injunction. 

40.  The  judgment  of  a  court,  refusing  to 
grant  immediate  relief  by  way  of  mandatory 
injunction  to  compel  the  restoration  of  the 
status  of  immovable  property,  is  so  far 
final  as  to  entitle  the  applicant  to  an  ap- 
peal. Vicksburg,  S.  &  P.  R.  Co.  v.  Web- 
ster Sand,  G.  &  Constr.  Co.  47:  1155,  62  So. 
140,  132  La.  1051. 

41.  An  appeal  lies  from  an  order  of 
court  denying  the  application  of  tiie  plain- 
tiff for  a  mandatory  injunction  to  compel 
the  defendant  to  restore  the  status  of 
immovable  property  which  he,  in  violation 
of  an  injunction,  has  disturbed.  Vicks- 
burg, S.  &  P.  R.  Co.  V.  Webster  San  ^ 
G.  &  Constr.  Co.  47:  1155,  62  So.  140,  132 
La.   1051. 

As  to  receivers. 

42.  A  bill  of  exceptions  to  a  refusal  of 
a  state  court  to  direct  its  receiver  to  turn 
over  the  property  in  his  possession  to  a  re- 
ceiver appointed  by  a  Federal  court  is  with- 
in a  statute  classifying  as  "fast  writs"  all 
those  taken  from  judgments  granting  or 
refusing  applications  for  extraordinary 
remedies.  Young  v.  Hamilton,  31 :  1057,  69 
S.  E.   593,   135   Ga.  339. 

43.  Appeals  from  decrees  directing  mem- 
bers of  a  social  club  to  pay  assessments, 
disallowing  the  claim  of  receivers  for 
■pecial  assessments  against  them,  and  al- 
Digest  1-52  I<.R.A.(N.S.) 


lowing  claims  against  the  assets  of  the  club, 
will   lie  without  waiting  for  a  final  decree 
distributing    its    assets.      Rogers    v.    Boston 
Club,  28:  743,  91  N.  E.  321,  205  Mass.  261. 
Contempt. 

44.  An  order  of  the  circuit  court  aflBrm- 
ing  an  order  of  a  court  commissioner  ad- 
judging a  witness  to  be  in  contempt  for 
refusing  to  answer  questions  as  directed 
by  a  ruling  affirmed  by  the  circuit  court, 
and  fixing  his  punishment  therefor,  is  a 
final  order  in  a  special  proceeding,  within 
the  meaning  of  a  statute  making  such  an 
order  appealable.  Karel  v.  Conlan,  49:  826, 
144  N.  W.  266,  155  Wis.  221. 
Probate    decrees. 

45.  An  order  of  the  probate  court  grant- 
ing or  refusing  an  allowance  to  a  widow  for 
her  support  out  of  the  estate  of  her  deceased 
husband  is  a  final  order,  and  is  appealable. 
Rieger  v.  Schaible,  17:  866,  115  N.  W.  500, 
116  N.  W.  953,  81  Neb.  33. 

c.  Cinminal  cases. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10. J 

46.  A  city  may  sue  out  a  writ  of  error 
to  review  a  judgment  discharging  one  ac- 
cused of  violating  an  ordinance  subjecting 
him  to  a  penaltv.  St.  Louis  v.  Bender,  44: 
1072,  154  S.  W.'88,  248  Mo.  113. 

47.  A  judgment  is  not  properly  entered 
on  a  plea  of  guilty,  when  the  court  did  not 
satisfy  itself  of  the  voluntary  character  of 
the  plea,  or  that  the  accused  understood  by 
his  pleading  that  he  was  waiving  immunity 
to  which  he  was  entitled  for  giving  testi- 
mony in  another  case,  or  intended  to  effect 
such  waiver,  so  as  to  come  within  the  rule 
that  no  appeal  can  be  taken  from  a  judg- 
ment so  entered.  Lowe  v.  State,  24:  439, 
73  Atl.  637,  111  Md,  1. 

Right  of  state  to  appeal. 

48.  A  judgment  of  a  Federal  circuit 
court  sustaining  a  demurrer  to  certain 
counts  in  an  indictment  charging  violations 
of  the  anti-trust  act  of  July  2,  1890,  upon 
the  ground  that  the  acts  charged  are  not 
within  the  condemnation  of  that  statute, 
is  based  upon  a  construction  of  such  stat- 
ute within  the  meaning  of  the  act  of  March 
2,  1907,  governing  the  right  of  the  govern- 
ment to  a  review  in  a  criminal  case.  Unit- 
ed States  V.  Patten,  44:  325,  33  Sup.  Ct. 
Rep.  141,  226  U.  S.  525,  57  L.  ed.  333. 

49.  In  a  proceeding  by  the  state  against 
an  incorporated  board  of  trade  and  its  of- 
ficers, charging  them  with  violation  of 
the  anti-trust  statute,  the  state  may  appeal 
from  a  judgment  in  favor  of  the  defendant. 
State  V.  Duluth  Bd.  of  Trade,  23:  1260,  121 
N.  W.  395,  107  Minn.  506. 

d.  Modes  of  review. 

{See   also   same   heading  in  Digest   L.R.A. 
1-70.) 

50.  A  proceeding  for  violation  of  a  mu- 
nicipal police  ordinance  which  is  not  a  pub- 


«» 


APPEAL  AND  ERROR,  II.  a,  1,  2. 


lie  offense  under  the  statutes  is,  for  the 
purpose  of  determining  the  method  of  re- 
view, a  civil,  and  not  a  criminal,  proceeding, 
although  a  fine  to  be  enforced  by  imprison- 
ment is  provided  for  the  violation.  Fortune 
V.  Wilburton,  4:  782,  142  Fed.  114,  73  C. 
C.  A.  338.  (Annotated) 

51.  A  prayer  for  appeal  from  a  decision 
in  bankruptcy,  which  proves  to  be  an  er- 
roneous method  of  procedure,  cannot  be 
treated  as  a  prayer  for  revision  of  the  de- 
cree. Dickas  v.  Barnes,  5:  654,  140  Fed.  849, 
72  C.  C.  A.  261. 

52.  Petition  to  review,  and  not  appeal,  is 
the  proper  method  to  bring  into  review  the 
action  of  a  bankruptcy  court  in  taking  actu- 
al possession  of  assets  of  members  of  an 
insolvent  partnership  who  are  not  them- 
selves adjudged  bankrupt.  Dickas  v. 
Barnes,  5:  654,  140  Fed.  849,  72  C.  C.  A.  261. 

53.  Appeal,  and  not  petition  to  review, 
is  the  proper  method  of  reviewing  proceed- 
ings in  a  bankruptcy  court  which  involve  a 
controversy  such  as  a  demand  by  the  trus- 
tee that  pi"oceeds  of  a  sale  made  by  a  re- 
ceiver be  paid  to  him,  rather  than  a  mere 
proceeding  in  bankruptcy.  Mason  v.  Wolko- 
wich,  10:  765,  150  Fed.  699,  80  C.  C.  A.  435. 

(Annotated) 

54.  A  petition  for  review  is  the  proper 
method  of  taking  to  th?  circuit  court  of  ap- 
peals the  question  of  the  correctness  of  an 
order  committing  a  bankrupt  for  failure  to 
turn  over  property,  in  the  exercise  of  the 
authority  conferred  upon  the  bankruptcy 
court  by  the  act  of  1898.  Re  Cole,  23:  255, 
163  Fed.  180,  90  C.  C.  A.  50. 

55.  Appeal  is  the  proper  remedy  to  re- 
view a  decree  of  a  bankruptcy  court  disal- 
lowing at  the  suit  of  a  trustee  of  a  bankrupt 
corporation  the  claim  of  the  wife  of  one  of 
its  members  to  dower  in  lands  held  in  his 
individual  name,  but  alleged  to  belong  to 
the  corporation.  Thomas  v.  Woods,  26:  1180, 
173  Fed.  585,  97  C.  C.  A.  535. 

II.  Jurisdiction  of  particular  courts, 

a.  Of  Supreme  Court  of  United  States. 

1.  In  general. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

See  also  infra,  68. 

56.  The  right  to  a  direct  appeal  to  the 
Supreme  Court  under  the  statute  distrib- 
uting appellate  jurisdiction  between  that 
court  and  the  circuit  court  of  appeals  is 
not  established  by  a  mere  assertion  of  the 
right  under  some  claimed  construction  or 
application  of  the  Constitution,  nor  by  a 
claim  that  a  pertinent  act  of  Congress  is 
violative  of  the  Constitution,  but  the  claim 
must  be  real  and  substantial,  and  not  mere- 
ly colorable,  or  without  reasonable  founda- 
tion. Harris  v.  Rosenberger,  13:  762,  145 
Fed.  449,  76  C.  C.  A.  225. 

57.  A  question  of  the  construction  or 
application  of  the  Constitution,  or  of  the 
Digest  1-52  L.R.A.(N.S.) 


constitutional  validity  of  an  act  of  Con- 
gress, wiiich  h..3  been  directly  determined 
by  the  Supreme  Court  of  the  United  States, 
no  longer  constitutes  a  ground  for  a  direct 
appeal  to  that  court,  under  the  statute  dis- 
tributing the  appellate  jurisdiction  between 
it  and  the  circuit  court  of  appeals.  Harris 
V.  Rosenberger,  13:  762,  145  Fed.  449,  76  C. 
C.  A.  225. 

Over  district  and  circuit  conrts. 
See  also  infra,  207. 

58.  The  Federal  Supreme  Court,  when 
reviewing,  under  the  criminal  appeals  act 
of  March  2,  1907  (34  Stat,  at  L.  1246,  chap. 
2564),  the  judgment  of  a  Federal  circuit 
court  whose  ruling  sustaining  a  demurrer 
to  certain  counts  in  an  indictment  charging 
violatisns  of  the  anti-trust  act  of  July  2, 
1890  (26  Stat,  at  L.  209,  chap.  647),  was 
based  upon  the  construction  of  that  stat- 
ute, must  accept  the  circuit  court's  con- 
struction of  the  counts  of  the  indictment, 
and  can  consider  only  whether  the  decision 
that  the  acts  charged  are  not  condemned 
as  criminal  by  the  statute  is  based  upon 
an  erroneous  construction  of  that  statute. 
Uftited  States  v.  Patten,  44:  325,  33  Sup. 
Ct.  Rep.  141,  226  U.  S.  525,  57  L.  ed.  333. 

59.  The  jurisdiction  of  a  Federal  circuit 
court  as  a  Federal  court  is  so  involved  as 
to  sustain  a  direct  writ  of  error  from  the 
Federal  Supreme  Court  under  the  act  of 
March  3,  1891,  §  5,  in  a  judgment  dismiss- 
ing the  suit  on  the  ground  of  the  invalidity 
of  the  attachment  and  garnishment  of  the 
property  of  the  nonresident  defendant,  and 
upon  the  lack  of  a  general  appearance  by 
such  defendant.  Davis  v.  Cleveland,  C.  C. 
&  St.  L.  R.  Co.  27:  823,  30  Sup.  Ct.  Rep. 
463,  217  U.  S.  157,  54  L.  ed.  708. 

2.  Over  state  courts. 

(See   also   same   heading   in  Digest   L.R.A.. 
1-70.) 

60.  The  exercise  by  a  state  court  of  its 
independent  judgment  in  interpreting  the 
statute  of  another  state  upon  which  the 
cause  of  action  is  based  can  present  no 
question  under  the  full  faith  and  credit 
clause  of  the  Federal  Constitution  for  re- 
view in  the  Federal  Supreme  Court  by  writ 
or  error  to  a  state  court,  where  there  is 
no  local  statute  controlling  the  construc- 
tion of  statutes  of  other  states,  and  no 
settled  construction  of  the  statute  by  the 
courts  of  the  state  enacting  it  is  pleaded  or 
proved.  Louisville  &  N.  R.  Co.  v.  Melton, 
47:  84,  30  Sup.  Ct.  Rep.  676,  218  U.  S.  36, 
54  L.  ed.  921. 

61.  The  Federal  Supreme  Court,  on  writ 
of  error  to  a  state  court,  will  accept  that 
court's  construction  of  a  state  statute  giv- 
ing a  lien  on  vessels  for  injuries  committed 
by  them  to  persons  or  property,  as  including 
injuries  to  a  bridge,  caused  by  a  foreign 
vessel  engaged  in  interstate  commerce, 
Martin  v.  West,  36:  592,  32  Sup.  Ct.  Rep. 
42,  222  U.  S.   191,  56  L.  ed.   159. 

62.  The  nature  and  character  of  the 
rights   of  the   surviving    wife    in   the   com- 


APPEAL  AND  ERROR,  II.  b,  c,  1. 


63 


munity  property  are  peculiarly  local  ques- 
tions, not  open  to  review  by  the  Federal 
Supreme  Court  when  determining,  on  a 
writ  of  error  to  a  state  court,  whether  the 
imposition  of  an  inheritance  tax  under  the 
state  laws  denies  to  the  wife  the  equal  pro- 
tection of  the  laws.  Moflitt  v.  Kelly,  30: 
1 179,  31  Sup.  Ct.  Rep.  79,  218  U.  S.  400,  54 
L,  ed.  1086. 

63.  Whether  or  nol  the  rights  of  a  sur- 
viving wife  in  the  community  property  as 
they  existed  when  the  marriage  was  cele- 
brated were  correctly  subjected  to  a  state 
inheritance  tax  law  subsequently  enacted 
cannot  be  reviewed  by  the  Federal  Supreme 
Court  when  determining,  on  writ  of  error 
to  a  state  court,  the  validity  of  such  stat- 
ute under  the  contract  clause  of  the  Fed- 
eral Constitution.  Moffitt  v.  Kelly,  30: 
1179,  31  Sup.  Ct.  Rep.  79,  218  U.  S.  400,  54 
L.  ed.  1086. 

Federal   questions   presented. 

64.  A  writ  of  error  to  review  a  judg- 
ment of  the  highest  court  of  a  state  will 
not  be  dismissed  on  the  ground  that  the 
Federal  question  relied  upon  to  confer  juris- 
diction has  been  so  conclusively  foreclosed 
by  prior  decisions  of  the  Federal  Supreme 
Court  as  to  cause  it  to  be  frivolous,  where 
analysis  and  exposition  are  necessary  in 
order  to  make  clear  the  decisive  elfect  of 
such  prior  decisions  upon  the  issue  present- 
ed, and  there  is  some  conflict  in  the  opin- 
ions of  the  various  state  courts  of  last  re- 
sort upon  the  question,  and  a  division  of 
opinion  in  the  court  below.  Louisville  & 
N.  R.  Co.  V.  Melton,  47:  84,  30  Sup.  Ct. 
Rep.  676,  218  U.  S.  36,  54  L.  ed.  921. 

65.  The  ruling  of  a  state  court  that  the 
power  to  penalize  a  railway  company  for 
failure  to  furnish  cars  on  demand  arose 
from  a  state  statute  instead  of  from  a 
rule  adopted  by  the  railroad  commission, 
which  was  challenged  as  repugnant  to  the 
Federal  Constitution,  does  not  eliminate  the 
Federal  questions  from  the  case,  so  as  to 
require  the  dismissal  of  a  writ  of  error 
from  the  Federal  Supreme  Court,  where 
the  constitutional  defenses  asserted  by  the 
pleadings  and  embraced  in  the  instructions 
asked  and  refused  were  not  confined  to  the 
mere  order  as  such,  but  plainly  challenged 
the  power  of  the  state  to  inflict  the  penalty 
for  the  failure  Id  furnish  the  cars  under  the 
circumstances  disclosed  by  the  pleadings. 
St.  Louis  S.  W.  R.  Co.  v.  State,  29:  802,  30 
Sup.  Ct.  Rep.  476,  217  U.  S.  136,  54  L.  ed. 
698. 

Time    and    mode    of    raising    Federal 
question. 

66.  The  full  faith  and  credit  clause  of 
the  Federal  Constitution  must  be  pleaded, 
or  the  attention  of  the  court  below  direct- 
ed to  the  fact  that,  in  connection  with  the 
proper  construction  of  a  statute  of  another 
state,  reliance  was  placed  upon  that  clause, 
in  order  to  present  a  Federal  question  for 
review  in  the  Federal  Supreme  Court  by 
writ  of  error  to  a  state  court.  Louisville 
&  N.  R.  Co.  V.  Melton,  47:  84,  30  Sup.  Ct. 
Rep.  676,  218  U.  S.  36,  54  L.  ed.  921. 

67.  Federal  questions  first  raised  by  ex- 
Digest   1-52  I..R.A.(N.S.) 


ceptions  to  the  report  of  a  special  commis- 
sioner to  whom  an  original  proceeding  in 
the  highest  state  court  had  been  referred  to 
take  evidence  and  report  his  conclusions 
will  support  a  writ  of  error  from  the  Fed- 
eral Supreme  Court  although  the  highest 
state  court  did  not  refer  to  the  Federal 
questions  in  its  opinion,  and  although  that 
court  has  laid  down  the  rule  that  constitu- 
tional questions  must  be  raised  at  the  first 
opportunity.  International  Harvester  Co. 
V.  Missouri  ex  rel.  Atty.  Gen.  52:525,  34 
Sup.  Ct.  Rep.  859,  234  U.  S.  199,  58  L.  ed. 
1276. 

6.  Of  circuit  courts  of  appeals. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

68.  A  suit,  although  not  one  of  diversity 
of  citizensiiip,  which,  according  to  the  com- 
plainant's bill  depends  not  only  upon  the 
construction  and  application  of  the  Consti- 
tution of  the  United  States  and  the  consti- 
tutional validity  of  an  act  of  Congress,  but 
also  upon  the  proper  construction  of  the  act 
of  Congress,  is  one  in  respect  of  which  the 
appellate  jurisdiction  of  the  Supreme  Court 
is  not  exclusive,  and  an  appeal  from  the 
final  decree  may  be  taken  to  the  circuit 
court  of  appeals.  Harris  v.  Rosenberger, 
13:  762,  145  Fed.  449,  76  C.  C.  A.  225. 

c.  Of  state  courts, 

1.  Generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Original  jurisdiction  of  appellate  court, 
superintending  control,  see  Courts,  II. 
a,  2. 

69.  The  supreme  court  has  jurisdiction 
on  appeal  to  review  an  order  of  the  district 
court,  awarding  the  custody  of  a  minor 
child  to  one  of  the  parties  in  a  habeas 
corpus  proceeding,  brought  for  the  purpose 
of  determining  who  has  the  right  to  the 
custody  and  control  of  such  minor.  Jami- 
son V.  Gilbert,  47:  1133,  135  Pac.  342,  38 
Okla.  751. 

70.  The  refusal  of  bank  officials  to  pro- 
duce certain  books  of  the  bank,  which  are 
in  charge  of  a  state  bank  commissioner,  in 
obedience  to  an  order  of  court,  made  for 
that  purpose,  is  criminal  contempt,  and  a 
conviction  therefor  is  reviewable  by  the 
Oklahoma  criminal  court  of  appeals.  Bur- 
nett v.  State  ex  rel.  West,  47:  1175,  129  Pac. 
1110,  8  Okla.  Crim.  Rep.  639. 

71.  Jurisdiction  of  appeals  from  a  rail- 
road commission,  which  is  a  mere  admin- 
istrative agency  not  clothed  with  judicial 
power,  cannot  be  conferred  upon  a  court 
which  under  the  Constitution  has  such  ju- 
risdiction as  pertains  to  a  court  of  appeals. 
Illinois  C.  R.  Co.  v.  Dodd,  49:  565,  61  So. 
743,  105  Miss.  23.  (Annotated) 

72.  Tlie    appellate    court    may    grant    a 


64 


APPEAL  AND  ERROR,  II.  c,  2— III.  a. 


certificate  of  importance  to  the  supreme 
court  in  a  case  of  the  fourth  class,  arising 
in  a  municipal  court,  which,  by  the  munici- 
pal court  act,  can  be  reviewed  only  by  writ 
of  error  from  the  appellate  court,  where, 
r.nder  the  practice  act,  passed  the  same  day 
on  which  the  former  act  was  passed,  that 
court  may  grant  a  certificate  of  importance 
in  any  case  in  which  an  appeal  or  writ  of 
error  is  not  allowed  by  the  act.  Rockhill  v. 
Congress  Hotel  Co.  22:  576,  86  N.  E.  740, 
237  111.  98. 

73.  An  order  of  the  county  court  re- 
quiring an  administratrix  to  inventory  cer- 
tain stock  as  the  property  of  the  estate  be- 
ing administered  by  her  is  of  such  a  nature 
that  an  appeal  lies  therefrom  to  the  district 
court,  under  a  constitutional  provision  that 
appeals  may  be  taken  from  the  judgment 
of  the  county  court  in  all  cases  arising 
under  its  probate  jurisdiction,  in  the  same 
manner  as  was  provided  by  the  laws  of  the 
territory  of  Oklahoma  at  the  time  of  its 
admission  as  a  state  for  appeals  from  the 
probate  to  the  district  court,  when  such 
laws,  which  were  by  another  constitutional 
provision  expressly  continued  in  force,  pro- 
vided for  appeals  from  judgments,  orders, 
and  decrees.    Apache  State  Bank  v.  Daniels, 

^        40:  901,  121  Pac.  237,  32  Okla.  121. 

74.  A  decision  by  a  county  court  which, 
by  statute,  has  jurisdiction  of  an  applica- 
tion for  correction  of  a  decision  of  a  board 
of  tax  reviewers,  may  be  revised  by  the 
supreme  court  if  the  amount  requisite  to 
give  that  work  jurisdiction  is  involved, 
since  the  county  court  in  making  the  re- 
view acts  judicially.  Copp  v.  State,  35: 
669,  71  S.  E.  580,  69  W.  Va.  439. 

75.  The  appeal  from  an  order  enjoining 
the  further  prosecution  of  a  criminal  pro- 
ceeding after  accused  has  been  released  un- 
der a  writ  of  habeas  corpus  because  of  the 
inapplicability  of  the  statute  under  which 
the  prosecution  was  instituted  should  be 
taken  to  the  court  having  jurisdiction  of 
civil  appeals,  and  not  to  that  entertaining 
criminal  appeals.  Denton  v.  McDonald,  34: 
453,  135  S.  W.  1148,  104  Tex.  206. 

3.  Over    constitutional    questions;    va- 
lidity of  statutes, 

(See   also   same   heading   in   Digest   L.R.A. 
1-70.) 

76.  Exception  to  instructions  stating  the 
law  to  be  as  established  by  a  statute  raises 
the  question  of  the  constitutionality  of  the 
statute, — at  least,  if  the  instructions  are  ex- 
pressly challenged  on  that  ground  on  the 
motion  for  new  trial, — so  as  to  bring  the 
appeal  within  the  jurisdiction  of  the  court 
taking  cognizance  of  appeals  involving  con- 
stitutional questions.  Christy  v.  Elliott, 
i:  215,  74  N.  E.  1035,  216  111.  31. 

77.  The  Louisiana  supreme  court  has 
jurisdiction  of  an  appeal  in  an  action  where 
the  constitutionality  of  a  tax  is  in  ques- 
tion. Monongahela  River  Consol.  Coal  '& 
Coke  Co.  V.  Board  of  Assessors,  2:  637,  39 
So.  601,  115  La.  564. 

Digest  1-52  Ii.R.A.(N.S.) 


78.  Overruling  a  motion  to  revertie  a 
judgment  on  the  ground  that  it  was  ob- 
tained by  publication  only,  without  service 
of  process,  necessarily  requires  a  considera- 
tion of  the  constitutionality  of  the  statute 
authorizing  such  publication,  subject  to  re- 
view by  the  supreme  court,  although  the 
question  of  constitutionality  is  not  raised 
in  express  terms.  Ward  Lumber  Co.  v.  Hen- 
derson-White Mfg.  Co.  17:  324,  59  S.  E.  476, 
107  Va.  626. 

3.  Over  questions   of  title. 

(See  same  heading  in  Digest  L.R.A.  1-10) 

4:.  Amount  necessary  for  jurisdiction. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

79.  Upon  an  inquiry  as  to  whether  the 
amount  involved  in  a  pecuniary  controversy 
is  sufficient  to  confer  appellate  jurisdiction, 
the  amount  of  the  claim  assei'ted  on  the 
one  side  and  denied  on  the  other,  not  the 
validity  thereof,  is  the  criterion,  unless  the 
claim  is  obviously  pretentious,  and  made 
merely  to  confer  jurisdiction.  Brown  v. 
Brown,  47:  995,  78  S.  E.  1040,  72  W.  Va.  648. 

JII.  Transfer  of  cause;  parties. 

a.  Right  to  transfer. 

(See  also  sam^  heading  in  Digest  L.R.A. 
1-70.) 

Right  of  insolvent  bank  to  appeal  from 
order  appointing  receiver  after  repeal 
of  statute  authorizing,  see  Statutes, 
360. 

80.  That  a  licensee,  upon  conviction  of 
a  violation  of  a  statute  making  it  un- 
lawful for  a  licensed  saloon  keeper  to 
traffic  in  intoxicating  liquors  after  and 
before  certain  hours,  is  subjected  to  a  fine 
and  forfeiture  of  his  license  whether  he 
appealed  from  the  conviction  or  not,  does 
not  invalidate  the  statute  as  denying  the 
right  of  appeal.  Dinuzzo  v.  State,  29:  417, 
123  N.  W.  309,  85  Neb.  351.  (Annotated) 
'Who  entitled  to. 

Who  may  appeal  in  administration  proceed- 
ings, see  Judgment,  119. 

Who  may  maintain  bill  of  review,  see  Re- 
view, 1. 

See  also  infra,  695. 

81.  Under  statutory  authority  to  appeal 
from  a  final  order  in  a  special  proceeding, 
the  state  superintendent  of  banks,  having 
authority  to  collect  and  distribute  the  ;  s- 
sets  of  an  insolvent  bank,  and  present  ob- 
jections to  claims  to  the  court  for  determi- 
nation, may  appeal  from  an  order  giving 
the  state  priority  over  other  claimants  up- 
on the  assets  of  an  insolvent  bank  which 
he  is  administering.  Re  Carnegit  Trust  Co. 
46:  260,  99  N.  E.  1096,  206  N.  Y.  390. 

82.  A  corporation  engaged  in  furnish- 
ing electricity  for  light,  heat,  and   power 


APPEAL  AND  ERROR,  III.  a. 


65 


in  a  municipality  ■will  be  aggrieved  by  an 
order  of  the  public  service  commission  per- 
mitting another  corporation  to  issue  bonds 
to  finance  another  enterprise  for  tlie  same 
purpose  in  the  municipality,  within  the 
meaning  of  a  statute  permitting  persons 
so  aggrieved  to  become  parties  to  the  pro- 
ceeding, and  to  appeal  from  the  determina- 
tion authorizing  such  action.  People  ex 
rel.  New  Yorlc  Edison  Co.  v.  AVillcox,  45: 
629,  100  N.  E.  705,  207  N.  Y.  86. 

83.  The  president  of  a  board  of  trade 
has  a  right  to  appeal  from  a  decree  in 
a  suit  in  which  he  was  a  party,  which  is 
adverse  to  the  validity  of  a  rule  of  the 
board.  Pacaud  v.  Waite,  2:  672,  75  N.  E. 
779,  218  111.  138. 

84.  Upon  the  construction  of  the  will 
against  his  contention,  an  executor  is  an 
aggrieved  party  within  the  meaning  of  Rev. 
Stat.  1898,  §  4031,  giving  such  party  a  right 
of  appeal.  Re  Paulson,  5:  804,  107  N.  W. 
484,  127  Wis.  612. 

85.  The  heirs  apparent  or  presumptive, 
or  those  dependent  upon  an  alleged  incom- 
petent person  for  support,  may  appeal  from 
an  order  of  the  county  court  dismissing 
their  petition  for  the  appointment  of  a 
guardian  for  such  incompetent.  Tierney  v. 
Tierney,  15:  436,  115  N.  W.  764,  81  Neb. 
193.  (Annotated) 

86.  The  bankruptcy  court  may  allow  a 
creditor  to  appeal  from  an  order  allowing 
claims  against  the  estate,  where  the  trustee 
refuses  to  do  so,  although  it  would  be 
preferable  to  order  the  trustee  to  do  so, 
or  to  allow  the  creditor  to  appeal  in  his 
name.  Ohio  Valley  Bank  v.  Mack,  24:  184, 
163  Fed.  155,  89  C.  C.  A.  605. 

87.  The  duties  of  a  guardian  ad  litem, 
duly  appointed  by  a  court  to  defend  the 
interests  of  an  insane  ward,  do  not  neces- 
sarily terminate  with  the  decision  of  the 
case  in  which  he  was  appointed,  but  he  has 
authority,  in  a  proper  case,  to  appeal  the 
cause  to  the  court  of  last  resort.  Buchan- 
an v.  Hunter,  29:  147,  127  N.  W.  166, 
87   Neb.   277. 

88.  A  nonresident  sister  of  an  alleged 
incompetent  person  whose  petition  for  the 
appointment  of  a  guardian  is  denied,  is  not 
a  person  aggrieved  within  the  meaning  of  a 
statute  regulating  the  right  to  appeal, 
since  none  of  her  legal  rights  are  infringed, 
she  having  no  right  to  control  the  custodj*  or 
conduct  of  the  alleged  incompetent,  nor 
right  to  support  from,  or  duty  to  care  for  or 
support,  him,  and  no  legal  rights  in  or  to 
his  property.  Re  Carpenter,  25:  155,  123  N. 
W.  144,  140  Wis.  572.  (Annotated) 

89.  The  right  of  a  plaintiff  in  summary 
process  to  recover  possession  of  property 
from  a  tenant,  to  a  writ  of  error  to  the 
justices'  judgment  under  a  general  statute, 
is  not  affected  by  another  statute  giving 
defendant  a  right  to  such  writ,  which  al- 
lows him  a  certain  time  to  procure  the  writ 
during  which  the  execution  shall  be  stayed. 
Brodner  v.  Swirslty,  42:  654,  84  Atl.  104,  86 
Conn.  32. 

Dieest  1-52  i:<.R.A.(N.S.) 


Homr  lost  or  w^aived. 

Waiver  of  r^ht  to  appeal  from  award  of 
railroad  commission,  see  Eminent  Do- 
main, 174. 

90.  The  right  to  appeal  from  a  ruling  on 
a  demurrer  is  not  waived  by  proceeding  to 
trial,  where  the  demurrer  did  not  reach  all 
the  matters  presented  for  hearing  and  deter- 
mination of  the  court.  Sullivan  v.  Sullivan, 
22:  691,  117  N.  W.   1086,  139  Iowa,  679. 

91.  In  a  suit  brought  upon  a  cause  of 
action  on  which  a  judgment  had  been  re- 
covered in  a  former  action,  the  defendant, 
by  pleading  the  former  proceedings  and  the 
judgment  in  bar  to  the  maintenance  of  the 
second  suit,  and  thereby  recognizing  the  ex- 
istence of  the  judgment,  does  not  surrender 
his  right  to  a  review  of  the  former  pro- 
ceedings and  judgment.  Missouri,  K.  &  T. 
R.  Co.  V.  Ba'gley,  3:  259,  69  Pac.  189,  65 
Kan.  188. 

92.  The  order  of  a  trial  court  in  setting 
aside  a  verdict  and  granting  a  new  trial  may 
be  ignored  by  the  petitioners  for  new  trial, 
and  an  appeal  taken  from  the  judgment 
entered  on  the  verdict  afterwards  set  aside, 
although  the  new  trial  has  been  had  and  a 
second  judgment  reached,  if  the  appeal  is 
perfected  within  the  time  allowed  by  law 
after  the  first  judgment  is  entered.  Broad- 
way Coal  Min.  Co.  v.  Smith,  26:565,  125 
S.  W.  757,  136  Ky.  725. 

93.  A  convict  by  effecting  his  escape  and 
remaining  at  large  as  a  fugitive  from  jus- 
tice thereby  waives  his  right  to  appeal  from 
the  jvidgment  convicting  him,  as  it  is  essen- 
tial to  such  an  appeal  that  the  defendant 
be  where  he  can  be  made  to  respond  to  any 
iudgment  or  order  which  may  be  made  in  the 
case.  Tvler  v.  State.  26:  921,  104  Pac.  919, 
3  Okla.  Crim,  Rep.  179.  (Annotated) 

94.  A  party  who  accepts  the  benefit  of 
a  decree  waives  his  right  to  appeal  from 
that  decree,  unless  he  is  so  absolutely  en- 
titled to  the  benefit  received  that  a  refusal 
will  not  affect  his  right  to  it.  McKain  v. 
Mullen,  29:  I,  64  S.  E.  829,  65  W.  Va.  558. 

95.  One  cannot  avail  himself  of  that 
part  of  a  decree  which  is  favorable  to  him, 
accept  its  benefit,  and  then  prosecute  an 
appeal  to  reverse  such  portion  of  the 
same  decree  as  militates  against  him,  when 
the  acceptance  of  the  benefit  from  the  one 
part  is  totally  inconsistent  with  tlie  appeal 
from  the  other.     McKain  v.  Mullen,  29:  i, 

64  S.  E.  829,  65  W.  Va.  558.         (Annotated) 

96.  The  defendant  in  a  suit  by  which 
his  tax  deed  is  set  aside  cannot  unreserved- 
ly accept  the  taxes,  interest,  and  charges 
tendered  by  the  bill  and  ordered  by  the 
decree  to  be  paid  him,  and  then  appeal  fiom 
the  decree,  since  his -acceptance  is  a  pos- 
itively implied  waiver  of  his  right  of  ap- 
peal, nor  will  an  offer  to  return  the  money, 
made  long  after  its  acceptance,  avail  to 
prevent  dismissal  of  an  appeal  in  such 
case.    McKain  v.  Mullen,  29:1,  64  S.  E.  829, 

65  W.  Va.  558. 

97.  Compelling  surrender  of  the  parcel 
awarded  plaintiff  in  an  action  of  ejectment 
and  payment  of  taxed  costs,  by  threat  of 
executing  the  writ  of  restitution  which  had 


ee 


APPEAL  AND  ERROR,  III.  b. 


been  issued,  prevents  him  from  attempt- 
ing to  reverse  the  judgment  df,  appeal,  al- 
though he  was  denied  relief  as  to  a  large 
parcel  of  land  upon  which  he  claimed  that 
defendant  had  wrongfully  encroached. 
Clairview  Park  Improv.  Co.  v.  Detroit  & 
Lake  St.  C.  R.  Co.  33:  250,  129  N.  W.  353, 
164  Mich.  74. 

Certifying  question  reTie^rable. 
N  98.  The  certification  of  questions  by  the 
appellate  division  is  not  necessary  to  a  re- 
view of  the  court  of  appeals,  in  an  action 
for  compensation  for  services  rendered, 
where  the  appeal  is  authorized  under  §  191, 
subd.  2,  Code  Civ.  Proc.  Frank  L.  Fisher 
Co.  V.  Woods,  12:  707,  79  N.  E.  836,  187  N. 
Y.  90. 

b.  Effect;    subsequent    proceedings    in 
court  below. 

(See  also  scume  heading  in  Digest  L.R.A. 
1-10.) 

Effect    of    granting    appeal    generally,    see 

CouBTS,  292. 
Effect  of  appeal  as  an  appearance,  see  Ap- 

PEABAXCE,   5. 

Effect  of,  on  right  to  admit  to  bail  China- 
man ordered  to  be  deported,  see  Bah, 
<- '  AND  Recognizance,  11,  12. 

Effect,  on  trial  court's  jurisdiction  to  punish 
violation  of  injunction,  see  Contempt, 
49. 

Effect  of  pending  appeal  from  conviction  to 
prevent  it  from  being  bar  to  other  pros- 
ecution for  same  offense,  see  Criminal 
Law,  181. 

Effect  of,  on  right  to  injunction,  see  In- 
junction, 3. 

Effect  of,  on  right  to  review  of  decree,  see 
Judgment,  405,  406. 

Effect  of,  to  suspend  running  of  statute  of 
limitations,  see  Limitation  of  Ac- 
tions, 278;  Malicious  Prosecution, 
31. 

Effect  of  appeal  from  order  substituting 
one  receiver  for  another,  see  Receivers, 
21. 

From  judgment  convicting  official  of  felony; 
effect  on  right  to  declare  office  vacant, 
see  Officers,  26. 

99.  A  pending  appeal  by  one  of  the  par- 
ties to  a  supplementary  proceeding  bars  the 
right  to  institute  another  proceeding  be- 
tween the  same  parties  for  the  same  pur- 
pose. Ledford  v.  Emerson,  10:  362,  55  S.  E. 
•    969,  143  N.  C.  527. 

100.  A  trial  court  may,  upon  proper  no- 
tice and  showing,  correct  its  record  which 
shows  a  ruling  striking  an  amendment  to 
the  answer,  so  as  to  show  that,  as  matter 
of  fact,  the  amendment  was  not  stricken. 
Kvamme  v.  Barthell,  31:  207,  118  N.  W. 
766,  144  Iowa,  418.  (Annotated) 

101.  An  appeal  by  one  upon  whom  de- 
fective service  was  made  in  a  justice's  court 
and  who  appeared  solely  for  the  purpose  of 
challenging  the  service,  from  an  adverse 
judgment,  to  the  county  court,  where  a 
trial  de  novo  is  had  of  both  law  and  fact, 
Dieest  1-52  I^R.A.(N.S.)     -,.ij    -.ih 


waives  the  defective  service.  Gulf  Pipe 
Line  Co.  v.  Vanderberg,  34:  661,  115  Pac. 
782,   28    Okla.    637.  (Annotated) 

102.  An  appeal  and  the  giving  of  a  super- 
sedeas bond  in  a  proceeding  in  a  state  court 
appointing  a  receiver,  which  has  the  effect 
of  suspending  the  order,  but  not  of  dischar- 
ging the  receiver,  does  not  take  the  property 
out  of  the  jurisdiction  of  the  state  court, 
so  as  to  enable  a  Federal  court  to  appoint 
a  receiver  over  it.  State  v.  Palmer,  22:  316, 
158  Fed.  705,  85  C.  C.  A.  603.     (Annotated) 

103.  The  pendency  of  an  apeal  from  an 
order  committing  officers  of  a  corporation 
for  contempt  in  disobeying  an  order  direct- 
ing them  to  turn  over  the  corporate  books 
to  a  receiver  will  not  prevent  the  nisi  prius 
court  from  sequestering  the  corporate  prop- 
erty. Manning  v.  Mercantile  Securities  Co. 
30:  725,  90  N.  E.  238,  242  111.  584. 

104.  Under  a  statute  providing  that  the 
court  in  term  or  the  judge  in  vacation  may, 
at  any  time  pending  a  suit  for  divorce, 
award  suit  money  and  maintenance,  the 
trial  court  retains  jurisdiction  to  award 
suit  money  and  maintenance  necessitated  by 
the  pendency  of  an  appeal  from  a  decree  dis- 
missing a  suit  for  divorce.  Maxwell  v.  Max, 
well,  27:  712,  67  S.  E.  379,  67  W.  Va.  119. 

(Annotated) 

105.  The  pendency  of  an  appeal  does  not 
deprive  the  trial  court  of  power  to  award 
alimony  in  a  divorce  suit,  where  the  statute 
empowers  the  judge,  either  in  term  time 
or  vacation,  to  awaid  maintenance  to  the 
wife  during  tlie  pendency  of  the  suit,  until 
a  final  decree  shall  have  been  made  in  the 
cause.  Ex  parte  Lohmuller,  29:  303,  129 
S.  W.  834,  103  Tex.  474. 
Snpersedeas;  stay. 

Supersedeas  bond,  see  infra,'>'X. 

106.  The  filing  of  a  supersedeas  bond  upon 
appealing  from  an  order  refusing  to  proceed 
with  a  case  as  an  equitable  action  does  not 
deprive  the  court  of  jurisdiction  to  proceed 
with  the  trial  as  one  at  law.  First  Nat. 
Bank  v.  Dutcher,  i:  142,  104  N.  W.  497,  128 
Iowa,  413. 

107.  The  right  to  supersedeas  pending  ap- 
peal does  not  extend  to  an  appeal  from  an 
order  enjoining  continued  operation  of  a 
shooting  gallery  and  mechanical  musical  in- 
struments. State  ex  rel.  Gibson  v.  Superior 
Court,  i:  554,  80  Pac.  1108,  39  Wash.  115. 

(Annotated) 

108.  An  order  of  a  judge  indorsed  on  a 
petition,  allowing  an  appeal  from,  and  super- 
sedeas to,  an  order  refusing  to  dissolve  an 
injunction,  as  prayed  for,  does  not  purport 
to  be  an  order  staying  the  injunction,  but 
merely  grants  the  appeal  and  supersedeas, 
where  the  prayer  of  the  petition  is  ''that 
an  appeal  and  supersedeas  may  be  allowed, 
staying  said  injunction."  State  ex  rel.  Pow- 
hatan Coal  &  C.  Co.  V.  Ritz,  9:  1225,  56  S. 
E.  257,  60  W.  Va.  395. 

109.  The  perfecting  of  an  appeal  from  an 
order  refusing  to  dissolve  an  injunction,  to- 
gether with  the  supersedeas,  does  not  stay 
the  operation  of  tlie  injunction,  nor  deprive 
the  court  below  of  power  to  punish  a  party 
for   his   contempt   in   refusing   to   obey   it. 

f.a.TD.A.H.j:   £t. 


APPEAL  AND  ERROR,  III.  c,  d. 


6T 


State  ex   rel.   Powhatan   Coal  &   C.   Co.   v. 
Ritz,  9:  1225,  56  S.  E.  257,  60  W.  Va.  395. 

110.  An  injunction  to  restrain  the  opera- 
tion of  a  cement  factory,  which  was  run 
in  such  a  manner  as  to  injure  neighboring 
property,  will  not  be  suspended  by  the  ap- 
pellate court  pending  the  appeal,  although 
its  continuance  will  result  in  such  loss  that 
reversal  would  be  almost  fruitless,  while 
complainant's  injury  might  be  fully  com- 
pensated in  damages.  Hulbert  v,  California 
Portland  Cement  Co.  38:  436,  118  Pac.  928, 
161   Cal.   239.  (Annotated) 

111.  The  right  to  the  custody  of  a  child  in 
accordance  with  a  judgment  in  a  habeas  cor- 
pus proceeding  is  not  affected  by  an  appeal, 
although  the  statute  provides  tliat  the  ap- 
peal shall  stay  all  further  proceedings  on 
the  judgment,  since  the  judgment  is  self- 
executing.  Willis  V.  Willis,  2:  244,  75  N.  E. 
655,  165  Ind.  332. 

c.  Parties. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Who   entitled  to   appeal,   see   supra,   81-89. 

Death   of  party   below. 

Effect  of  death  of  party  before  appeal  on 
authority  of  attorney,  see  Attorneys, 
37. 

112.  Where  a  party  to  an  action  dies  be- 
fore an  appeal  is  taken,  the  attorney  who 
represented  such  party  lias  no  power  or  au- 
thority to  prosecute  an  appeal  until  a  sub- 
stitution of  a  legal  representative  is  had, 
and  an  appeal  prosecuted  in  the  name  of 
such  deceased  party  without  substitution 
will  be  dismissed  for  want  of  jurisdiction 
in  tlie  appellate  court  to  consider  the  same. 
McCornick  v.  Shaughnessy,  34:  1188,  114 
Pac.  22,  19  Idaho,  465.  (Annotated) 
Intervention. 

113.  A  trustee  in  bankruptcy  who  fails  to 
intervene  in  the  trial  court  in  a  pi'oceeding 
brought  by  the  banKrupt  before  the  pro- 
ceedings were  taken  against  him  has  no 
right  to  take  such  a  proceeding  for  the  first 
time  on  appeal.  Weaver  Mercantile  Co.  v. 
Thurmond,  33:  1061,  70  S.  E.  126,  68  W.  Va. 
630. 

Who  are  necessary  parties. 

114.  Although  one  holding  a  mortgage  on 
property  sought  to  be  subjected  to  an  im- 
provement lien  defaulted  at  the  trial,  which 
resulted  in  defeating  the  lien,  he  is  a  nec- 
essary party  to  an  appeal  from  the  judg- 
ment, since  a  reversal  of  the  judgment 
would  reestablish  the  lien,  to  his  detriment. 
Trippeer  v.  Clifton,  39:  522,  97  N.  E.  791, 
178  Ind.  198. 

115.  It  is  not  necessary  to  join  as  ap- 
pellees all  landowners  affected  by  a  pro- 
posed public  drain,  on  an  appeal  from  a 
judgment  sustaining  a  remonstrance  to 
which  they  were  not  parties.  Lantz  v. 
Caraway,  50:  32,  103  N.  E.  335,  180  Ind.  484. 
Digest   1-52  Ii.B.A.(N.S.) 


d.  Mode;  conditions;  regulations. 

(See  also   same   heading   in   Digest   L.R.A.. 
1-10.) 

Writ  of  prohibition  for  purpose  of  proceed- 
ing in  error,  see  Prohibition,  3. 

116.  A  motion  to  dismiss  a  writ  of  error 
on  the  ground  that  the  bill  of  exceptions 
and  transcript  should  have  been  transmit- 
ted by  the  clerk  of  the  superior  court  of 
the  county  in  which  the  suit  was  brought 
is  properly  overruled  where,  after  recovery 
of  judgment,  and  while  a  motion  for  a 
new  trial  was  pending,  a  new  county  was. 
created,  to  the  court  of  which  the  action 
was  transferred,  and  from  which  the  record 
was  sent  up.  Atlantic  &  B.  R.  Co.  v.  John- 
son, 11:  1119,  56  S.  E.  482,  127  Ga.  392. 

117.  An  appeal  may  be  taken  from  a 
judgment  which  is  void  because  of  the  un- 
constitutionality of  the  statute  creating  the 
court  in  which  it  was  rendered,  and  a  re- 
versal had,  where  the  case  is  preserved  and 
presented  by  a  case-made,  that  being  one 
of  the  prescribed  methods  for  the  taking  of 
an  appeal.  Fleeman  v.  Chicago,  R.  I.  & 
P.  R.  Co.  33:  733,  109  Pac.  287,  82  Kan.  574. 

(Annotated) 

118.  Section  4,  chap.  131,  North  Dakota 
Laws  1913,  requiring,  upon  an  appeal,  a 
concise  statement  of  errors  of  law  com- 
plained of,  and  a  specification  of  insuffi- 
cient evidence  in  case  of  a  claim  that  the 
evidence  is  insufficient  to  support  the  ver- 
dict, to  be  served  with  the  notice  of  appeal, 
does  not  prescribe  u  jurisdictional  prere- 
quisite to  such  appeal.  Wilson  v.  Kryger, 
51:  760,  143  N.  W.  764,  26  N.  D.  77. 
Writ  of  error. 

119.  A  writ  of  error  from  the  circviit  court 
of  appeals  to  the  district  court  must  be  at- 
tested by  the  chief  justice  of  the  Supreme 
Court  and  either  the  clerk  of  the  Supreme 
Court  or  the  clerk  of  the  circuit  court. 
Long  V.  Farmers'  State  Bank,  9:  585,  147 
Fed.  360,  77  C.  C.  A.  538. 

120.  A  defect  in  the  attestation  of  a  writ 
of  error  from  a  circuit  court  of  appeals  to 
the  district  court  of  the  United  States  is 
amendable.  Long  v.  Farmers'  State  Bank, 
9:  585,  147  Fed.  360,  77  C.  C.  A.  538. 

121.  A  motion  to  dismiss  a  writ  of  error 
for  defect  of  attestation  comes  too  late  if 
not  made  until  after  defendant  in  error  has 
filed  a  brief  taking  issue  on  the  assignment 
of  errors,  and  within  two  days  of  the  time 
the  cause  is  set  down  for  hearing.  Long 
V.  Farmers'  State  Bank,  9:  585,  147  Fed. 
360,  77  C.  C.  A.  538. 

122.  A  writ  of  error  is  the  only  method 
of  reviewing  the  action  of  a  court  having 
jurisdiction  of  the  parties  upon  pleadings- 
seeking  to  prohibit  the  officers  of  the  gov- 
ernment from  removing  their  oflTices  from 
one  city  to  another,  and  which  alleges 
that  they  will  by  so  doing  unlawfully  dis- 
burse public  funds.  State  ex  rel.  West  v. 
Huston,  34:  380,  113  Pac.  190,  27  Okla,^ 
606. 


68 


APPEAL  AND  ERROR,  III.  e,  f. 


Joint  or  separate  appeals. 

123.  In  case  two  actions  for  refusal  of  a 
railroad  company  to  stop  a  train  for  passen- 
gers are  tried  togetJicr  for  convenience,  with- 
out becoming,  by  order  of  court,  one  action, 
separate  appeals  must  be  taken.  Williams 
V.  Carolina  &  N.  W.  R.  Co.  12:  191,  57  S.  E. 
216,  144  N.  C.  498. 

Necessity  of  motion  for  neur  trial  in 
lovirer  court. 

124.  A  motion  for  a  new  trial  need  not 
be  filed  in  the  court  below,  to  secure  a  re- 
view of  an  equity  case  in  the  supreme  court. 
Ogden  V.  Garrison,  17:  1135,  117  N.  W.  714, 
82  Neb.  302. 

125.  An  order  sustaining  a  motion  for 
judgment  on  the  pleadings  may  be  re- 
viewed without  a  motion  for  new  trial. 
Burdett  v.  Burdett,  35:  964,  109  Pac.  922, 
26  Okla.  416. 

126.  A  motion  for  new  trial  and  assign- 
ments of  error  are  not  necessary  to  sup- 
port an  appeal  from  an  order  granting  a 
temporary  injunction,  under  a  statute  pro- 
viding that  the  cause  may  be  heard  on  the 
bill  and  answer,  and  such  aflidavits  and 
evidence  as  may  have  been  admitted.  Ft. 
Worth  Improv.  Dist.  No,  1  v.  Ft.  Worth, 
48:  994,  158  S.  W.  104,  —  Tex.  — . 

e.  Citation;  notice;  appearance. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

See  also  supra,   118;      infra,  137. 

127.  A  notice  of  appeal  is  not  insufficient 
for  failure  to  designate  the  court  to  which 
the  appeal  is  taken,  and  identify  the  decree, 
if  tliGse  facts  appear  in  the  appeal  bond. 
Holton  V.  Holton,  48:  779,  129  Pac.  532, 
64   Or.   290. 

128.  Failure  to  serve  notice  of  an  appeal 
by  plaintiff  upon  defendants,  who  cannot  be 
injuriously  affected  by  the  process  of  the 
appeal,  is  not  fatal  to  the  jurisdiction  of 
the  appellate  court.  Sullivan  v.  Sullivan, 
22:  egi,  117  N.  W.  1086,  139  Iowa,  679. 

129.  A  party  defendant  as  to  whom  a  non- 
suit is  rendered  need  not  be  served  with  no- 
tice of  appeal  from  a  judgment  rendered 
against  the  other  defendants  in  the  same  ac- 
tion where  no  appeal  is  taken  from  that 
part  of  the  judgment  nonsuiting  him,  as  he 
is  not  an  adverse  party  to  the  judgment  as 
appealed  from,  since  he  could  in  no  way  be 
prejudicially  affected  by  a  reversal  thereof. 
McClain  v.  Lewiston  Interstate  Fair  &  R. 
Asso.  25:  691,  104  Pac.  1015,  17  Idaho,  63. 

130.  It  is  not  necessary  to  serve  a  pro- 
posed bill  of  exceptions  upon  one  who  pur- 
chases the  subject-matter  of  the  litigation 
while  the  action  is  pending,  and  continues 
the  litigation  in  the  name  of  the  assignor. 
Wells  V.  Cochran,  35:  142,  129  N.  W.  533, 
88  Neb.  367. 

131.  That  a  notice  of  appeal  in  a  criminal 
case  is  not  given  to  the  prosecuting  attor- 
ney until  after  the  transcript  and  briefs 
have  been  filed  in  the  appellate  court  will 
not  destroy  the  jurisdiction  of  that  court, 
Jligest  1-52  I..R.A.(N.S.) 


although  it  is  not  strictly  in  the  order  re- 
quired by  statute,  if  it  is  given  within  the 
time  allowed  for  perfecting  the  appeal. 
Merrill  v.  State,  44:  439,  93  N.  E.  857,  175 
Ind.  139. 
Appearance. 

132.  Tlic  appearance  of  plaintiffs  who  are 
made  defendants  in  a  v,'rit  of  error  sued  out 
by  a  coplaintiff,  and  their  declination  to  as- 
sign cross  errors  or  unite  in  the  prosecution 
of  the  writ,  operate  to  create  a  severance, 
and  justify  the  prosecution  of  the  writ  by 
the  coplaintiff  aloiio.  Wormley  v.  Wormley, 
3:  481,  69  N.  E.  860,  207  111.  411. 

/.  Time. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Retrospective    effect    of    statute    shortening 

time  for  appeal,  see  Statutes,  294. 
See  also  infra,  387,  401. 

133.  The  filing  of  the  necessary  papers 
to  make  or  complete  a  record  on  appeal 
during  the  months  of  July  and  August  is 
not  prevented  by  a  statutory  provision  that 
all  proceedings  to  make  or  complete  the 
record  on  appeal  shall  be  suspended  during 
those  months.  Young  v.  Lemieux,  20:  160, 
65  Atl.  436,  79  Conn.  434. 

134.  That  an  appellant  does  not  embrace 
in  his  reasons  of  appeal  the  finding  of  the 
court  which  he  has  requested  in  order  to 
bring  certain  questions  before  the  appellate 
court,  does  not  deprive  him  of  the  benefit  of 
the  extension  of  time  for  perfecting  his  ap- 
peal effected  by  the  request.  Sparrow  v. 
Bromage,  27:  209,  74  Atl.  1070,  83  Conn.  27. 

135.  An  appeal  to  the  Federal  Supreme 
Court  from  a  decree  of  a  circuit  court  of 
appeals  on  a  bill  in  equity  brought  by  a 
trustee  in  bankruptcy  to  set  aside  a  trans- 
fer made  by  the  bankrupt  in  fraud  of  cred- 
itors need  not  be  taken  within  the  thirty 
days  prescribed  by  general  orders  in  bank- 
ruptcy No.  36,  for  appeals  under  the  bank- 
rupt act,  but  the  appellate  jurisdiction  be- 
ing under,  or  the  same  as  that  under,  the 
circuit  courts  of  appeals  act  of  March  3, 
1891  (26  Stat,  at  L.  828,  chap.  517,  U.  S. 
Comp.  Stat.  1901,  p.  549),  §  6,  the  appeal 
is  in  time  if  taken  within  a  year.  Thomas 
V.  Sugarman,  29:  250,  30  Sup.  Ct.  Rep.  650, 
218  U.  S.  129,  54  L.  ed.  967. 

136.  A  statute  providing  that  the  failure 
of  a  bonding  company  to  pay  a  judgment 
rendered  against  it,  from  which  no  appeal 
is  taken  within  sixty  days,  shall  operate 
to  forfeit  its  right  to  do  business  under  the 
enabling  act,  does  not  preclude  the  taking 
of  an  appeal  after  the  prescribed  time. 
United  States  Fidelity  &  G.  Co.  v.  State, 
26:  865,  106  Pac.  1040,  81  Kan.  660. 

137.  Where,  by  statute,  an  appeal  is  tak- 
en by  service  of  notice  thereof,  such  service 
is  sufficient  to  entitle  one  to  perfect  the  ap- 
peal, if  made  within  the  time  limited  by 
statute  within  which  the  appeal  must  be 
taken,  although  notice  and  vmdertaking 
are  not  filed  with  the  clerk  until  after  the 


APPEAL  AND  ERROR,  III.  g,  IV.  a. 


09 


expiration  of  that  time.     Liesner  v.  Wanie, 
50:  703,  145  N.  W.  374,  156  Wis.   16. 

138.  An  appeal  from  an  order  continuing 
until  the  hearing  an  injunction  to  prevent 
the  levying  of  a  tax  to  organize  a  school 
district,  because  the  petition  for  the  elec- 
tion was  not  signed  by  the  requisite  number 
of  freeholders,  is  not  premature  nor  frag- 
mentary, although  the  validity  of  the  elec- 
tion was  also  questioned  and  has  not  been 
settled.  Gill  v.  Board  of  Comrs.  43:293, 
76  S.  E.  20.3,  160  N.  C.  176. 
Computation  of. 

139.  The  time  within  which  an  appeal 
must  be  perfected  is  reclvoned  from  the  dis- 
position of  a  petition  for  reliearing,  where 
it  was  filed  before  the  expiration  of  the 
time  for  appealing.  Mills  v.  Fisher,  16: 
656,  159  Fed.  897,  87  C.  C.  A.  77. 

140.  Where  after  the  entry  of  a  judgment 
and  the  denial  of  a  motion  for  new  trial, 
the  successful  party  causes  a  new  judgment 
to  be  entered,  its  date  is  that  from  which 
to  reckon  the  time  allowed  for  appeal.  Jemo 
V.  Tourist  Hotel  Co.  30:  026,  104  Pac.  820, 
55  Wash.  595. 

g.  Security. 

(See   also   same   heading   in   Digest   L.R.A. 

1-10.) 

Liability  on  bond,  see  infra,  X. 

Efi'ect  of  failure  to  give  supersedeas  bond 
on  rights  of  one  leasing  property  from 
successful  litigant  pending  appeal,  see 
Lis  Pendens,  10. 

Release  of  surety  on  appeal  bond,  see  Prin- 
cipal AND  Surety,  29. 

See  also  infra,  399. 

Necessity. 

141.  Under  act  No.  173  of  1902,  all  mu- 
nicipal boards  or  commissioners  exercising 
public  functions  or  performing  adminis- 
trative acts  are  exempt  from  furnishing 
a  bond  for  appeal,  and,  as  the  board  of  fire 
commissioners  for  the  city  of  New  Orleans 
is  a  public  functionary,  it  need  not  furnish 
such  a  bond.  Martin  v.  Board  of  Fire 
Comrs.  44:  68,  61  So.  197,  132  La.  188. 
SnJBciency;   amendment. 

Validity  of  appeal  bond  within  statute  of 
frauds,  see  Contracts,  283. 

142.  Where  a  litigant  in  a  jvistice  court, 
in  anticipation  of  defeat,  together  with 
sureties,  executes  an  appeal  bond  some  days 
before  the  trial  of  his  case,  and  takes  it 
with  him  for  use  in  case  it  is  needed,  and 
the  sureties  understand  that  it  will  be 
so  used,  upon  the  filing  and  approval  of 
same  by  the  justice  of  the  peace,  it  is  a 
binding  obligation,  and  will  support  the 
appeal.  Harper  v.  Pierce,  44:  1144,  132 
Pac.  607,   37   Okla.  457.  (Annotated) 

143.  The  omission  of  the  condition  "to 
prosecute  the  appeal  to  effect  and  without 
unnecessary  delay"  from  an  appeal  bond  in 
a  justice  court  is  a  mere  irregularity,  and 
does  not  render  the  bond  void.  Harper  v. 
Pierce,  44:  1144,  132  Pac.  667,  37  Okla.  457. 

144.  On  motion  in  the  county  court  to 
Digest  1-52  L.R.A.(N.S.) 


dismiss  an  appeal  on  account  of  the  omis- 
sion of  the  condition  "to  prosecute  the  ap- 
peal to  ell'ect  and  without  unnecessary  de- 
lay" from  the  appeal  bond,  the  court,  on 
motion  of  appellant,  should  permit  an 
amended  or  substituted  bond  to  be  filed. 
Harper  v.  Pierce,  44:  1144,  132  Pac.  667,  37 
Okla.  457. 

145.  Where  in  an  action  in  which  the 
findings  have  been  made  and  judgment  di- 
rected to  be  entered  in  favor  of  the  plain- 
tiff", and  after  the  time  allowed  for  a  stay 
has  expired,  and  upon  the  plaintiff's  threat- 
ening to  enter  judgment,  the  defendant 
agrees  that  if  plaintiff  will  refrain  from 
entering  judgment  in  an  intended  appeal 
he  will  give  a  satisfactory  bond  to  pay  all 
judgments  and  costs  that  may  be  entered 
in  the  action, — an  agreement  that  is  kept 
by  the  plaintiff, — and  pursuant  thereto  such 
a  bond  is  executed,  the  bond  is  a  valid 
common-law  obligation,  and  binding  in  all 
its  terms.  First  Nat.  Bank  v.  C.  E.  Stev- 
ens Land  Co.  43:  1040,  137  N.  W.  1101,  119 
Minn.  209. 

146.  The  supreme  court  has  jurisdiction, 
after  an  appeal  to  it  has  been  perfected,  to 
direct  the  appellant  to  give  a  new  superse- 
deas bond,  and  in  case  of  liis  default,  to  va- 
cate the  stay  whenever  it  is  made  to  appear 
that  the  original  bond  is  clearly  insuflTicient. 
Bock  v.  Sauk  Center  Grocery  Co.  9:  1054, 
110  N.  W.  257,  100  Minn.  71.       (Annotated) 

147.  An  appeal  will  not  be  dismissed  on 
the  gi-ound  that  appellant's  attorneys  exe- 
cuted the  appeal  bond  in  their  own  names, 
and  not  in  the  names  of  the  clients  for 
whom  they  acted.  Landry  v.  American 
Creosote  Works,  11:387,  43  So.  1016,  119 
La.  231. 

148.  Although  an  appeal  is  defective  by 
reason  of  the  fact  that  the  justification 
upon  the  appeal  bond  fails  to  state  the 
worth  of  the  surety,  as  required  by  statute, 
the  appellant  may,  after  the  time  for  tak- 
ing an  appeal  has  expired,  and  where  the 
court  has  reasonable  grounds  to  believe 
that  the  appeal  has  been  taken  in  good 
faith,  be  allowed  to  amend  the  undertaking 
so  as  to  remedy  the  defects.  W.  T.  Raw- 
leigh  Medical  Co.  v.  Laursen,  48:  ig8,  141 
N.  W.  64,  25  N.  D.  63. 

Time  for  giving. 

149.  An  appeal  will  not  be  dismissed  be- 
cause of  neglect  to  give  a  bond  for  costs 
at  the  time  of  taking  the  same,  if  it  is 
filed  within  a  reasonable  time  thereafter, 
and  the  appellee  is  in  no  way  prejudiced 
by  the  delay.  Corcoran  v.  Kostrometinoff, 
21:  399,  164  Fed.  685,  91  C.  C.  A.  619. 

IV.  Record  and  case  in  appellate  court. 

a.  In  general. 

(See   also    same   heading   in  Digest   L.R.A. 
1-10.) 

Time  for  completing  record,  see  supra,  133, 
139. 


to 


APPEAL  AND  ERROR,  IV.  b. 


Presumption  arising  from  condition  of  rec- 
ord, see  infra,  VII.  d. 
See  also  infra,  384,  1624,  1654. 

150.  All  questions  presented  on  an  ap- 
peal must  be  tried  and  determined  by  the 
record  as  certified  to  the  appellate  tribunal. 
Terrell  v.  State,  2:  251,  75  N.  E.  884,  165  Ind. 
443. 

151.  A  docket  entry  which  contains  all 
the  essential  elements  of  a  judgment  is  suf- 
ficient to  support  an  appeal,  although  the  en- 
try is  informal.  Kuhlman  v.  Wieben, 
2:  666,  105  N.  W.  445,  129  Iowa,  188. 

152.  A  court  rule  requiring  an  index  to 
form  the  first  page  of  the  transcript  is  not 
violated  by  running  it  over  to  the  succeed- 
ing pages.  Sexauer  v.  Star  Milling  Co.  26: 
609,  90  N.  E.  474,  173  Ind.  342. 

153.  Compliance  with  a  statute  directing 
the  prsecipe  for  a  transcript  of  record  to  be 
copied  in  the  transcript  is  sufficient  to  pre- 
sent the  record  to  the  reviewing  court,  al- 
though a  former  statute  requires  the  praeci- 
pe to  be  appended  to  the  transcript.  Pere 
Marquette  R.  Co.  v.  Strange,  20:  1041,  84 
N.  E.  819,  171  Ind.  100. 

154.  The  existence  of  a  church  of  a  par- 
ticular name  at  the  time  of  the  execution 
of  a  deed  to  it  is  sliown  by  the  record,  in 
ftn  action  to  recover  possession  of  the  prop- 
erty conveyed,  where  the  parties  stipulated 
that  the  tract  ceased  to  be  used  for  a  church 
fts  provided  in  the  deed  to  the  trustees  of 
the  church  of  that  name.  North  v.  Graham, 
18:  624,  85  N.  E.  267,  235  111.  178. 

155.  An  objection,  upon  the  review  of  an 
■order  of  the  state  corporation  commission 
by  the  supreme  court,  that  no  certified  copy 
of  the  order  of  the  commission  was  served 
on  the  railway  company  as  required  by  stat- 
ute, will  be  disregarded,  where  the  record 
shows  that  a  "true  copy"  was  delivered  to 
the  railway  company.  Seward  v.  Denver 
&  R.  G.  R.  Co.  46:242,  131  Pac.  980,  17  N. 
M.  557. 

Appellee's  dnty  as  to. 

156.  When  an  appellant  brings  up 
enough  of  the  record  to  show  prejudicial 
error  appellee  must,  if  the  error  can  be 
overcome  by  consideration  of  another  part 
of  the  record,  take  the  proper  steps  to  en- 
able the  court  to  examine  the  entire  record. 
Red  Men's  Fraternal  Acci.  Asso.  v.  Rippey, 
50:  1006,  103  N.  E.  345,  104  N.  E.  641,  181 
Ind.   454. 

b.  What  should  be  shown  by. 

(See   also   same   headirig   in  Digest  L.R,A. 
1-10.) 

See  also  infra,  1217. 

157.  That  a  verdict  and  judgment  are 
violative  of  the  Federal  Constitution  pre- 
sents no  reviewable  question  in  a  Federal 
appellate  court,  where  the  issues  of  fact 
which  condition  the  constitutionality  of  the 
verdict  and  judgment  are  not  reviewable  by 
the  court,  and  no  ruling  of  the  court  below 
on  a  question  of  law  involving  that  issue 
Digest  1-52  Ii.R.A.(N.S.) 


is  presented  by  the  record  for  the  con- 
sideration of  the  appellate  court.  Thomp- 
kins  V.  Missouri,  K.  &  T.  R.  Co.  52:  791, 
211  Fed.  391,  128  C.  C.  A.  1. 

159.  An  appellant  who  alleges  error  in  a 
ruling  must  show  affirmatively  from  the 
record  that  prejudicial  error  was  com- 
mitted. Leonard  v.  Hartzler,  50:  383,  133 
Pac.  570,  90  Kan.  386. 

160.  The  court  of  appeals  will  not  con- 
sider an  objection  based  on  a  rule  of  the 
nisi  prius  court  unless  a  copy  of  the  rule  ap- 
pears in  the  record.  Bennett  v.  Bennett,  19: 
121,  66  Atl.  706,  106  Md.  122. 

IGl.  A  judgment  invalid  for  absence  of 
service  of  process  cannot  be  corrected  on 
appeal,  where  the  defect  does  not  appear 
on  the  record.  State  ex  rel.  Happel  v. 
District  Court,  35:  1098,  99  Pac.  291,  38 
Mont.  166. 

162.  A  mistake  in  description  of  a  parcel 
of  land  in  a  will  must  appear  on  the  record 
to  receive  consideration  on  appeal.  Andrews 
V.  Applegate,  12:  661,  79  N.  E.  176,  223  111. 
535. 

163.  A  plea,  although  not  made  a  part  of 
the  record  by  the  order  of  the  court  reject- 
ing it,  may  be  considered  on  appeal,  Avhen 
the  order  numbers  the  paper  and  calls  it  a 
plea.  Smith  v.  White,  14:  530,  60  S.  E. 
404,  63  W.  Va.  472. 

164.  Rulings  on  pleadings  cannot  be  pre- 
sented to  the  appellate  court  by  bill  of  ex- 
ceptions, if  the  pleadings  appear  only  in 
such  bill.  Diener  v.  Star-Chronicle  Pub.  Co. 
33:  216,   132  S.  W.  1143,  230  Mo.  613. 

165.  A  suggested  amendment  to  a  plead- 
ing not  made  part  of  the  record  by  order  of 
court  or  bill  of  exceptions  cannot  be  con- 
sidered on  appeal.  Lewis  v.  Bowling  Green 
R.  Co.  39:  929,  144  S.  W.  377,  147  Ky.  460. 

166.  llie  appellate  court  cannot  consider 
the  original  petition  in  aid  of  a  contention 
of  abandonment  of  a  particular  theory  of 
the  case,  where  there  was  no  motion  to 
strike  out  an  amended  petition  on  the  ground 
of  departure,  and  the  original  petition  was 
not  preserved  in  the  record.  Missouri  P.  R. 
Co.  v.  Continental  Nat.  Bank,  17:  994,  111 
S.  W.  574,  212  Mo.  505. 

167.  Error  in  sustaining  an  objection  to 
a  question  which  showed  on  its  face  the 
relevancy  and  materiality  of  the  evidence 
called  for  is  not  available  on  appeal,  where 
the  record  fails  to  show  what  tl«  answer 
would  have  been,  or  what  was  proposed  to 
be  proved;  the  test  being  whether  the  error 
complained  of  was  prejudicial,  and  not 
whether  the  evidence  was  material.  Sayre 
V.  Woodyard,  28:  388,  66  S.  E.  320,  66  W. 
Va.  288. 

168.  If  there  is  no  evidence  in  the  record 
of  venue,  a  conviction  of  homicide  will  be 
reversed.  Litchfield  v.  State.  45:  153,  126 
Pac.  707,  8  Okla.  Crim.  Rep.  164. 

169.  A  judgment  of  conviction  of  homi- 
cide will  not  be  reversed  because  the  record 
does  not  affirmatively  show  that  argument 
was  made  and  that  accused  was  present 
during  said  argument.  Henry  v.  State, 
52:  113,  136  Pac.  982,  10  Okla.  Crim.  Rep. 
369.  '  ■    ^ri 


APPEAL  AND  ERROR,  IV.  c— f. 


.fl 


170.  Absence  from  the  record  in  a  crim- 
inal case  of  an  affirmative  showing  that  ac- 
cused was  given  an  opportunity  to  plead  is 
conclusive  on  appeal  that  he  was  not  given 
such  opportunity.  State  v,  Walton,  13: 
fin,  91  Pac.  490, '50  Or.  142. 

c.  Contradictions  in. 

(See   also    same   heading    in   Digest   L.R.A. 
1-10.) 

171.  An  allegation  of  the  petition  as  to 
the  character  in  which  a  person  signed  a 
promissory  note  will  control  a  mere  recital 
of  the  record  as  to  the  exhibit  purporting 
to  set  out  the  note.  Pease  v.  Globe  Realty 
Co.  42:  6,  119  N.  W.  975,  141  Iowa,  482. 

d.  Amending;  perfecting. 

(See  also  same   heading  in  Digest  L.R.A. 
1-tO.) 

172.  The  appellate  court  veill  not  permit 
a  party  to  alter  the  record  which  he  made 
in  the  lower  court,  for  the  purpose  of  mak- 
ing contentions  before  it  which  are  opposed 
to  the  record  as  made.  Grigsby  v.  Wops- 
chall,  37:  206,  127  N.  W.  605,  25  S.  D.  504. 

173.  A  respondent  in  the  appellate  court 
who  serves  an  additional  abstract  for  the 
purpose  of  bringing  matters  to  the  atten- 
tion of  the  court,  from  which  he  intention- 
ally omits  certain  matters  which  might  have 
been  included,  will  not,  after  argument,  be 
permitted  to  file  an  amendment  to  such  ad- 
ditional abstract,  for  the  purpose  of  raising 
new  questions  which  he  then  thinks  neces 
sary  to  his  success.  Grigsby  v.  Wopschall, 
37:  206,  127  N.  W.  605,  25  S.  D.  564. 

174.  The  record  may  be  made  to  show  an 
exception  to  the  overruling  of  a  motion  for 
new  trial  by  nunc  pro  tunc  entry.  Mitchell 
V.  Young,  7:  221,  97  S.  W.  454,  80  Ark.  441. 

175.  An  amendment  of  an  appeal  may  be 
allowed  by  the  supreme  court  so  as  to  com- 
ply with  the  statutory  requirements  which 
are  not  jurisdictional,  under  a  statute 
which  authorizes  such  amendment  in  fur- 
therance of  justice,  especially  Avhere  a  sec- 
tion of  the  act  to  comply  with  which  the 
amendment  is  sought  provides  for  the 
amendment.  Wilson  v.  Kryger,  51:  760,  143 
N.  W.  764,  26  N.  D.  77. 

176.  The  omission  from  the  record  in  a 
criminal  prosecution  of  any  plea  and  joinder 
of  issue  may  be  cured  after  a  writ  of  error 
has  been  allowed,  by  certification  to  the  ap- 
pellate court  of  a  nunc  pro  tunc  order  pla- 
cing upon  the  record,  by  way  of  amendment, 
the  fact  that  plea  had  been  made  before  the 
jury  was  impaneled  and  sworn  and  issue 
joined.  State  v.  Gibson,  28:  965,  68  S.  E. 
295,  67  W.  Va.  548. 

177.  A  motion  to  strike  an  amended  ab- 
stract of  record  will  be  overruled  where  it 
presents  matters  material  to  the  disposi- 
tion of  the  case,  which  are  not  disclosed  by 
the  abstract.  Collins  v.  Collins,  18:  1176, 
117  N.  W.  1089,  139  Iowa,  703. 

178.  An  amendment  to  an  abstract  of  reo- 
Digest  1-52  I^R.A.CN.S.) 


ord  will  not  be  stricken  out  because  not 
filed  strictly  within  the  time  required  by 
the  rule  of  court,  if  the  delay  is  slight,  and  . 
a  sufficient  excuse  therefor  is  shown.  Col- 
lins V.  Collins,  18:  1176,  117  N.  W.  1089,  139 
Iowa,  703. 

179.  The  common  joinder  in  error  is  an 
admission  by  the  defendant  in  error  that 
what  is  returned  as  the  record  of  the  judg- 
ment below  is  true;  and  after  such  joinder 
neither  party  can  of  right  allege  diminution 
or  have  a  certiorari.  Tomlinson  v.  Armour 
&  Co.  (N.  J.  Err.  &  App.)  19:  923,  70  Atl. 
314,  75  N.  J.  L.  748. 

180.  The  technical  phrase,  ideo  considera- 
tum  est,  is  not  necessary  to  constitute  such 
a  judgment  as  will  support  a  writ  of  error, 
as  the  want  thereof,  being  merely  a  defect 
of  form,  can  be  amended  in  the  court  of  re- 
view. Tomlinson  v.  Armour  &  Co.  (N.  J. 
Err.  &  App.)  19:  923,  70  Atl.  314,  75  N.  J. 
L.  748. 

181.  A  record  which  sets  forth  simply  that 
the  court  below,  having  heard  argument  up- 
on a  demurrer  to  the  petition,  and  having 
duly  considered  same,  did  order  that  the  de- 
murrer be  sustained  with  costs,  recites  a 
judgment  sufficient  in  substance  for  pur- 
poses of  review,  although  there  was  no  form- 
al judgment  or  any  award  of  a  specific  sum 
for  costs,  and  joinder  in  error  and  argument 
of  the  cause  upon  the  merits  having  been 
made,  the  record  should  be  treated  as  if 
amended  in  the  court  of  review  with  respect 
to  matters  of  form.  Tomlinson  v.  Armour 
&  Co.  (N.  J.  Err.  &  App.)  19:  923,  70  Atl. 
314,  75  N.  J.  L.  748. 

e.  Affidavits. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

See  infra,  391. 

/.  Evidence. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

Dismissal    for    imperfect    stenographic    re- 
port of  testimony,  see  infra,  398. 
See  also  infra,  196,  448,  1008. 

182.  An  appellate  court  will  not  consider 
evidence  no  statement  of  which  appears  in 
the  record,  and  which  there  is  no  attempt 
to  supply  bv  writ  of  diminution.  Canton 
Co.  V.  Baltimore,  11:  129,  66  Atl.  679,  106 
Md.  69. 

183.  To  secure  consideration  on  appeal  of 
a  ruling  rejecting  evidence,  the  record  must 
show  what  the  offered  evidence  was.  War- 
ren v.  State,  34:  1121,  115  Pac.  812,  6  Okla. 
Crim.  Rep.  1. 

184.  Absence  of  evidence  from  the  record 
will  not  prevent  consideration  of  an  excep- 
tion to  its  exclusion,  where  the  court  did 
not  permit  the  witness  to  answer.  Mount 
Vernon  Brewing  Co.  v.  Teschner,  16:  758, 
69  Atl.  702,  108  Md.  158. 

185.  A  reversal  for  error  in  the  allowance 
of  damages  cannot  be  prevented  by  the  fact 


72 


APPEAL  AND  ERROR,  IV.  g— i. 


that  evidence  was  omitted  from  the  tran- 
script, if  the  omitted  evidence  was  of  a  char- 
,  acter  which  could  have  no  bearing  upon  tlie 
question  of  the  damages  allowed.  St.  Louis, 
1.  M.  &  S.  R.  Co.  V.  Townes,  26:  572,  124  S. 
W.  1036,  93  Ark.  430. 

18G.  To  enable  the  appellate  court  to  con- 
sider the  evidence  on  which  a  chancellor's 
findings  are  based,  it  must  be  attached  to 
and  submitted  by  the  chancellor's  report. 
Barber  v.  Bailey,  44:  98,  84  Atl.  608,  85  Vt. 
219. 

187.  When  evidence  is  certified  by  the 
trial  judge,  and  a  separate  bill  of  exceptions 
is  used  to  make  it  a  part  of  the  record,  a 
reference  in  the  bill  to  the  certificate  of  evi- 
dence, stating  that  it  is  made  a  part  of  the 
record  and  a  part  of  the  bill  of  exceptions, 
is  suflieient  to  make  the  evidence  a  part  of 
the  record.  State  v.  Legg,  3:  1152,  53  S.  E. 
545,  59  W.  Va.  315. 

188.  The  rule  that  instructions  will  not 
be  reviewed  on  appeal  in  the  absence  of  the 
evidence  does  not  apply  to  instructions 
which  must  be  held  erroneous  because  im- 
proper under  any  evidence  admissible  under 
the  issues.  Red  Men's  Fraternal  Acci. 
Asso.  V.  Rippey,  50;  1006,  103  N.  E.  345,  104 
N.  E.  641,  181  Ind.  454. 

189.  Where  a  vacation  order  of  a  judge 
certifies  the  presentation  to  him  of  bills  of 
exception  and  a  transcript  of  all  the  evi- 
dence, and  certifies  that,  for  identification, 
the  bills  were  numbered  and  that  the  cer- 
tificate of  evidence  was  marked  "certificate 
of  evidence,"  and  certifies  that  the  bills  were 
signed  and  that  the  certificate  of  evidence 
was  also  signed  and  ordered  to  be  made  a 
part  of  the  record,  the  certificate  of  evi- 
dence which  is  found  so  marked  in  the  rec- 
ord and  referred  to  as  such  in  the  bill  of 
exceptions,  about  which  there  is  no  question, 
is  a  part  of  the  record  and  properly  brings 
the  evidence  before  the  court.  Gross  v. 
Gross,  39:  261,  73  S.  E.  901,  70  W.  Va.  317. 

190.  Under  a  statute  making  it  a  suffi- 
cient pleading  of  the  ordinances  of  a  vil- 
lage to  refer  to  the  section  and  number  or 
chapter  thereof,  giving  them  the  eflTect  of 
general  laws,  and  providing  that  they  need 
not  be  given  in  evidence  upon  the  trial  of  a 
civil  or  criminal  action,  the  supreme  court 
may  consider  an  appeal  from  a  conviction 
of  violation  of  a  village  ordinance  where 
the  only  record  before  it  is  the  complaint, 
finding,  and  judgment,  there  being  no 
settled  case  and  no  evidence  in  that  court. 
Minneota  v.  Martin,  51:  40,  145  N.  W.  383, 
124  Minn.  498. 

191.  The  action  of  the  court  below  in  con- 
victing defendant  of  the  violation  of  a  mu- 
nicipal ordinance  cannot  be  reviewed  on  the 
evidence  adduced  on  the  trial  and  reduced 
to  writing,  where  it  appears  only  in  the 
transcript,  and  is  not  annexed  to  any  bill  of 
exceptions.  New  Orleans  v.  Smythe,  6:  722, 
41  So.  33,  116  La.  685. 

102.  The  supreme  court,  in  reviewing  a 
habeas  corpus  proceeding  wliich  seeks  the 
release  of  one  under  arrest  in  an  extradi- 
tion proceeding,  cannot  consider  whether  or 
Digest  1-52  L.R.A.(N.S.) 


:  not  evidence  offered  and  excluded  should 
have  been  received,  and  considered  by  the 
nisi  prius  court,  since  it  is  no  part  of  the 
record,  and  the  fact  that  an  exception  was 
noted  and  a  bill  sealed  is  immaterial.  Com. 
ex  rel.  Flower  v.  Superintendent  of  Prison, 
21:  939,  69  Atl.  916,  220  Pa.  401. 
Documentary  evidence;  exhibits. 

193.  A  statement  in  a  proposed  statement 
of  facts  for  appeal  that  certain  depositions 
or  exhibits  were  offered  in  evidence  is  suf- 
ficient to  permit  their  attachment  to  the 
statement  as  finally  settled,  under  a  stat- 
ute which  provides  that  written  evidence  on 
file  shall  be  appropriately  referred  to  in 
the  proposed  statement,  and  "when  it  is  cer- 
tified, the  same  or  copies  thereof,  if  the 
judge  so  directs,"  shall  be  attached  to  the 
statement  and  become  a  part  thereof. 
Thornely  v.  Andrews,  i:  1036,  82  Pac.  899, 
40  Wash.  580. 

194.  A  municipal  ordinance  which  does  not 
appear  in  the  record  cannot  be  considered  on 
appeal.  Hasting  v.  Southern  R.  Co.  5:  775^ 
143  Fed.  260,  74  C.  C.  A.  398. 

g.  Stenographer^ a  notes. 

(See  also  same  heading  in  Digest  L.R.A. 
1-tO.) 

Dismissal  of  appeal  because  of  imperfect 
stenographic  report  of  testimony,  see 
infra,  398. 

h.  Instructions. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

195.  The  charge  of  the  court  is  conclusive 
as  to  what  issues  were  submitted  to  the 
jury.  Garbutt  v.  Mayo,  13:  58,  57  S.  E.  495, 
128  Ga.  269. 

196.  Instructions  based  on  evidence  not 
in  the  record  cannot  be  considered  on  ap- 
peal. National  Annuity  Asso.  v.  McCall, 
48:  418,  146  S.  W.  125,  103  Ark.  201. 

i.  Findings. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

197.  A  memorandum  of  decision  contain- 
ing findings  of  fact,  voluntarily  filed  by  the 
justice  w-ho  hears  the  evidence,  has  the 
same  effect  as  one  filed  by  request,  which, 
under  Rev.  Laws,  chap.  159,  §  23,  is  a  part 
of  the  record,  and  will  not  be  set  aside  un- 
less plainly  wrong.  Cohen  v.  Nagle,  2:  964, 
76  N.  E.  276,  190  Mass.  4. 

198.  An  error  in  the  classification  of  find- 
ings by  a  trial  court  does  not  prevent  the 
appellate  court  from  classifying  them  in 
accordance  with  their  actual  character. 
Buffalo  v.  Delaware,  L.  &  W.  R.  Co.  16: 
506,  82  N.  E.  513,  190  N.  Y.  84. 
Sufficiency. 

199.  Upon  an  appeal  on  the  judgment 
roll  alone,  findings  as  to  the  use  of  a  way 
prior  to  the  conveyance  of  land  to  which  it 


APPEAL  AND  ERROR,  IV.  j— n. 


73 


is  alleged  to  be  appurtenant  cannot  aflfect 
a  finding  that  the  way  was  appurtenant  to 
the  land  conveyed,  if  not  inconsistent  there- 
with. Corea  v.  Higuera,  17:  1018,  95  Pac. 
882,  153  Cal.  451. 

200.  A  plaintiff  against  whom  a  verdict 
was  directed,  who,  after  the  evidence  has 
been  summarized  by  the  trial  court  for  the 
purpose  of  an  appeal,  takes  proceedings  as 
allowed  by  statute  to  correct  such  state- 
ment, as  a  result  of  wliicli  all  the  evidence 
and  rulings  at  the  trial  are  certified  to  the 
appellate  court,  cannot  assign  as  error  the 
refusal  of  the  court  to  make  additional  find- 
ings of  fact.  Powers  v.  Connecticut  Co.  26: 
405,  74  Atl.  931,  82  Conn.  665. 

j.  Opinions. 

(See   also   same   heading  in   Digest    L.R.A. 
1-TO.) 

201.  The  exercise  by  the  trial  judge  of  his 
discretion  in  refusing  to  grant  a  new  trial 
will  not  be  revised,  although  he  advances 
an  untenable  reason  for  his  ruling,  if  his 
opinion  is  not  part  of  the  record,  so  that  it 
is  not  shown  that  such  reason  is  the  only 
one  for  his  action.  Abbott  v.  Walker,  26: 
814,  90  N.  E.  405,  204  Mass.  71. 

fc.  Motions  and  orders. 

(See   also    same   heading   in   Digest   L.R.A. 
1-70.) 

202.  The  alleged  erroneous  refusal  of  a 
trial  court  to  sustain  a  motion  to  re-refer 
a  case  to  a  master  for  further  findings  will 
not  be  considered  upon  appeal,  where  the 
record  does  not  affirmatively  show  that  the 
motion  was  ever  acted  upon  by  the  court 
and  exceptions  taken  thereto  by  the  com- 
plaining party.  Ecker  v.  Ecker,  20:  421,  98 
Pac.  918,  22  Okla.  873. 

Ho-nr  brought  up. 

203.  A  motion  for  new  trial  is  a  part  of 
the  record  without  a  bill  of  exceptions,  and 
is  covered  by  a  praecipe  for  a  complete  trans- 
cript of  record.  Pere  Marquette  R.  Co.  v. 
Strange,  20:  1041,  84  N.  E.  S19,  171  Ind.  160. 

I 
I.  Certificates. 

(See   also    same   heading   in   Digest   L.R.A. 
1-10.) 

See  also  supra,  187. 

204.  One  _  convicted  of  contempt  cannot, 
on  appeal,  cfuestion  the  sufficiency  of  the  re- 
citals on  which  the  orders  are  based  because 
not  supported  by  the  record,  in  the  absence 
of  a  certificate  by  the  clerk  showing  that  the 
complete  record  is  before  the  court.  Frank- 
lin Union  No.  4  v.  People,  4:  looi,  77  N.  E. 
176,  220  111.  355. 

205.  A  certificate  of  the  clerk  as  to  the 
form  of  the  order-book  entry  of  the  verdict 
received  in  a  case  cannot  be  contradicted  by 
the  bill  of  exceptions  containing  a  motion 
for  venire  de  novo  and  affidavits  in  support 
Digest  1-52  I..R.A.(N.S.) 


thereof.     Broadstreet  v.  Hall,  10:  933,  80  N. 
E.  145,  168  Ind.  192. 

206.  A  constitutional  provision  that,  on 
appeal  to  the  supreme  court  from  the  state 
corporation  commission,  all  the  facts  upon 
which  the  action  appealed  from  was  based, 
and  which  may  be  essential  for  the  proper 
decision  of  the  appeal,  shall  be  certified, 
means  the  facts  as  found  by  the  commis- 
sion, and  does  not  include  the  evidence  in- 
troduced at  the  hearing.  Chicago,  R.  I. 
&  P.  R.  Co.  V.  State,  24:  393,  103  Pac.  617, 
24  Okla.  317. 

207.  Formal  defects  in  the  certificate  as 
to  jurisdiction  filed  by  a  Federal  circuit 
court  under  the  act  of  March  3,  1891  (26 
Stat,  at  L.  826,  chap.  517,  U.  S.  Comp.  Stat. 
1901,  p.  488),  §  5,  for  the  purpose  of  sustain- 
ing a  writ  of  error  from  the  Federal  Su- 
preme Court,  are  not  material,  where  the 
record  clearly  shows  that  the  only  matter 
tried  and  decided  in  the  circuit  was  one  of 
jurisdiction.  Davis  v.  Cleveland,  C.  C.  & 
St.  L.  R.  Co.  27:  823,  30  Sup.  Ct.  Rep.  463, 
217  U.  S.  157,  54  L.  ed.  708.  ,^      _  ; 

tn.  Abstracts. 

(See  also  same  heading  in  Digest  L.R.A^ 
1-70.)  _.   j-,,'i 

See  also  infra,  395,  396. 

208.  An  abstract  of  the  declaration  is  in- 
cluded in  a  rule  of  court  requiring  an  ap- 
pellant to  furnish  the  court  with  a  complete 
abstract  of  the  record.  Christy  v.  Elliott, 
1 :  215,  74  N.  E.  1035,  216  111.  31. 

209.  The  appellate  court  cannot  consider 
an  alleged  error  in  the  rejection  of  testi- 
mony when  the  abstract  does  not  show  that 
it  was  offered  and  excluded.  Priddy  v. 
Boice,  9:  718,  99  S.  W.  1055,  201  Mo.  309. 

210.  Errors  in  giving  instructions  must  be 
affirmatively  shown  by  the  abstract,  and  the 
court  will  not  explore  the  record  to  substan- 
tiate assignments  of  error.  Kelly  v.  Pierce, 
12:  180,  112  N.  W.  995,  16  N.  D.  234. 

211.  Exceptions  to  instructions  are  waived 
by  failure  to  set  them  out  in  the  abstract. 
EiiTferson  v.  McNeil,  15:  715,  106  S.  W.  479, 
84  Ark.  552. 

212.  The  act  of  the  trial  court  ia  overrul- 
ing motions  for  a  directed  verdict  cannot  be 
considered  on  appeal,  if  the  evidence  on 
which  they  are  based  is  not  in  the  abstract. 
Edson  V.  Poppe,  26:  534,  124  N,  W.  441,  24 
S.  D.  466. 

213.  Assignments  of  error  cannot  be  con- 
sidered which  are  based  on  evidence  or  ob- 
jections to  evidence  not  shown  by  the  ab- 
stract. Edson  V.  Poppe,  26:  534,  124  N.  W. 
441,  24  S.  D.  466. 

n.  Case  made;  statements. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Conclusiveness  of  certificate  of  trial  judge 
that  case  made  was  served  in  due  time, 
see  infra,  412. 

See  also  supra,   117,  190;    infra,  397,  401. 


74 


APPEAL  AND  ERROR,  IV.  o,  1. 


214.  The  adverse  party  to  a  cause,  upon 
whom  a  copy  of  the  proposed  statement  of 
facts  is  served,  is  not  entitled  to  notice  of 
its  filing  and  service  under  a  statutory  pro- 
vision tliat  it  shall  be  filed  and  a  copy 
served  on  the  adverse  party,  and  also  that 
notice  af  the  filing  of  it  shall  be  served  on 
all  other  parties  who  have  appeared  in 
the  action.  Bennett  v.  Supreme  Tent,  K. 
of  M.  2:  389,  82  Pac.  744,  40  Wash.  431. 

215.  An  order  striking  a  proposed  state- 
ment from  the  files,  and  refusing  to  settle  it, 
is  properly  made  on  the  ground  that  it  was 
not  presented  in  time,  and  that  the  court 
has  lost  jurisdiction  to  settle  or  allow  it, 
where  the  time  limited  by  order  for  its 
preparation  expired  before  a  second  order 
extending  the  time  was  made.  Bank  of 
Commerce  v.  Bowers,  17:  676,  93  Pac.  504, 
14  Idaho,  75. 

216.  A  record  constituting  a  purported 
case-made,  although  filed  in  the  appellate 
court  in  two  parts,  and  marked  respectively 
"Part  1"  and  "Part  2,"  will  be  considered 
as  one  record,  where  each  part  bears  the 
title  of  the  case,  and  both  were  filed  on 
the  same  day,  under  the  same  number,  and 
Part  1,  to  which  is  attached  the  petition 
in  error,  and  the  certificate  of  the  trial 
judge  signing  it,  unmistakably  refers  to 
Part  2.  Board  v.  Dill,  29:1170,  110  Pac. 
1107,  26  Okla.  104. 

217.  The  rule  that  alleged  errors  which 
require  an  examination  of  all  the  facts  can- 
not be  reviewed  unless  the  case-made  avers 
that  it  contains  all  the  evidence  intro- 
duced at  the  trial  is  complied  with  by  a 
statement  in  a  case-made,  preceding  the 
evidence,  to  the  effect  that  "the  following 
evidence  was  introduced,  same  being  all 
the  evidence  introduced  by  both  parties  at 
the  trial."  American  Steel  &  W.  Co.  v. 
Coover,  30:  787,  111  Pac.  217,  27  Okla.  131. 

218.  On  a  motion  to  dismiss  for  the  rea- 
son that  the  case-made  was  not  served  with- 
in the  time  prescribed  by  the  order  of  the 
court,  where  it  appears  from  an  examina- 
tion of  the  record  that  the  only  date  re- 
ferred to  in  the  journal  entry  is  not  the 
date  on  which  the  motion  for  new  trial  was 
overruled  and  the  time  given,  the  words 
"from  this  date"  in  the  journal  entry  will 
be  construed  as  applying  to  the  date  on 
which  it  is  filed,  and  not  the  date  on  which 
the  trial  was  commenced.  Western  U.  Teleg. 
Co.  v.  Sights,  42:  419,  126  Pac.  234,  34  Okla. 
461. 

219.  Where  no  time  has  been  fixed,  for  set- 
tling a  case  either  by  order  of  court  or  by 
notice  given  by  the  parties  within  the  time 
for  serving  a  case  and  suggesting  amend- 
ments thereto,  the  authority  or  term  of  a 
judge  pro  tempore  ceases  upon  the  expira- 
tion of  the  time  fixed  for  suggesting  amend- 
ments, and  a  case-made  settled  by  him  after 
that  time  is  a  nullity.  Shawnee  v.  State 
Pub.  Co.  42:  616,  125  Pac.  462,  33  Okla.  363. 

( Annotated ) 

220.  It  is  the  duty  of  counsel  for  an  ap- 
pellant in  preparing  a  case-made  or  trans- 
cript of  the  record  to  attach  to  it  an  index 
to  all  material  portions  of  ouch  case-made 
Pigest  1-52  Ii.R.A.(N.S.) 


or  transcript  of  the  record.  Ellis  v.  State, 
43:811,  128  Pac.  1095,  8  Okla.  Crim.  Rep. 
522. 

221.  Where  the  testimony  is  very  brief 
and  consists  of  but  a  few  printed  pages, 
a  motion  in  the  supreme  court  to  strike  the 
statements  from  the  abstract  for  failure  to 
conform  strictly  to  rule  7  of  tlie  court,  re- 
quiring the  testimony  to  be  reduced  to  the  - 
narrative  form,  will  be  denied.  Houston  v. 
Minneapolis,  St.  P.  &  S.  Ste.  M.  R.  Co.  46: 
589,  141  N.  W.  994,  25  N.  D.  469. 

o.  Bill   of   exceptions, 

1.  In  general. 

(See  also   same  heading   in  Digest   L.R.A. 
1-10.) 

As  to  exceptions  generally,  see  infra,  V. 
See  also  supra,   130,  164,  187,  205,   infra, 
367,  472. 

Necessity  for. 

See  also  supra,  203. 

222.  If  the  exclusion  or  admission  of  evi- 
dence is  one  of  the  grounds  for  a  new  trial, 
it  ought  to  be  made  certain  by  bill  of  ex- 
ceptions or  specification  in  the  motion  for 
a  new  trial,  or  at  least  in  the  brief  of  coun- 
sel. Smith  V.  White,  14:  530,  60  S.  E.  404, 
63  W.  Va.  472. 

223.  A  motion  to  dismiss  a  case  before  a 
reviewing  court,  on  the  ground  that  the  evi- 
dence heard  on  an  application  for  a  tem- 
porary injunction  in  the  trial  court  was  not 
made  a  part  of  the  record  by  a  bill  of  ex- 
ceptions, should  be  overruled  when  such  evi- 
dence appears  to  be  only  cumulative  evi- 
dence of  facts  alleged  in  the  verified  peti- 
tion, since  its  exclusion  would  not  necessi- 
tate a  dismissal,  as  it  would  not  then  ap- 
pear that  plaintiff's  demand  was  entirely 
unsupported  by  evidence.  Cooper  v.  Good- 
land,  23:  410,  102  Pac.  244,  80  Kan.  121. 

224.  Error  in  giving  and  refusing  instruc- 
tions cannot  be  considered  on  appeal,  if 
those  given  and  refused  are  not  brought 
into  the  record  by  bill  of  exceptions,  as  re- 
quired  by  law.  Carr  v.  State,  32:  1190,  93 
^^  E.  1071,  175  Ind.  241. 

225.  Denial  of  a  change  of  venue  cannot 
be  considered  on  appeal  in  the  absence  of 
a  bill  of  exceptions.  Littleton  v.  Burgess, 
16:  49,  91  Pac.  832,  16  Wyo.  58. 

226.  An  appeal  from  an  order  granting  a 
motion  to  quash  a  summons  brings  up  the 
record  for  review,  and  a  bill  of  exceptions 
is  not  necessary  if  the  record  discloses  the 
question  decided.  Long  v.  Hawken,  42:  iioi, 
79  Atl.  190,  114  Md.  234. 
Amendments. 

227.  The  trial  court  may  amend  a  bill  of 
exceptions  nunc  pro  tunc  after  the  expira- 
tion of  the  term,  so  as  to  include  matters 
inadvertently  omitted,  where  the  original 
bill  as  filed  purports  to  contain  the  matters 
included  in  the  bill  as  amended.  McGregor 
V.  Oregon  R.  &  Nav.  Co.  14:  668,  93  Pac. 
465,  50  Or.  527. 

228.  That  tlxe  ,?it)toi:ney  was  respcs^iU^ 

^VDA^.H..!  Sri-  r  M'f-nm 


APPEAL  AND  ERROR,  IV.  o,  2. 


73 


for  the  omission  of  matter  from  a  bill  of 
exceptions  will  not  prevent  its  amendment 
nunc  pro  tunc,  where,  by  virtue  of  a  stat- 
ute, it  is  presumed  that  the  court  prepares 
the  bill  of  exceptions  and  must  be  deemed 
to  have  made  tlie  error.  McGregor  v.  Ore- 
gon R.  &  Nav.  Co.  14:  668,  93  Pac.  4G5,  50 
Or.  527. 

2.  Sufficiency;  what  should  be  pre- 
sented hy. 

(See   also   same  heading   in  Digest   L.R.A. 
1-10.) 

See  also  infra,  448. 

229.  A  transcript  of  the  reporter's  short- 
hand notes  of  a  trial  can  be  regarded  as  a 
bill  of  exceptions  only  to  the  ruling  on  a 
motion  for  nonsuit  or  a  directed  verdict. 
Gobbi  V.  Dileo,  34:  951,  111  Pac.  49,  113 
Pac.  57,  58  Or.  14. 

230.  The  certificate  of  a  trial  judge  that 
the  bill  of  exceptions  contains  all  the  evi- 
dence pertaining  or  material  to  the  questions 
raised  by  a  motion  for  a  directed  verdict 
must  be  accepted  as  correct,  if  there  is 
nothing  properly  in  the  record  to  impeach  it. 
Lesch  V.  Great  Northern  R,  Co.  7:  93,  106 
N.  W.  955,  97  Minn.  503. 

231.  A  bill  of  exceptions  which  shows  in- 
ferentially  and  by  natural  implication,  from 
the  language  used,  that  it  contains  all  the 
evidence,  is  svifiicient.  Mitchell  v.  Young, 
7:  221,  97  S.  W.  454,  80  Ark.  441. 

232.  That  evidence  upon  a  certain  ques- 
tion was  presented  at  the  trial  is  sufficiently 
shown  by  a  bill  of  exceptions  which  states 
that  no  question  was  made  but  that  there 
was  evidence  for  the  jury  upon  all  the  is- 
sxxes  submitted  to  them,  where  the  instruc- 
tions show  that  the  issue  upon  which  the 
evidence  is  claimed  to  be  wanting  was  sub- 
mitted to  them.  Com.  v.  Tucker,  7:  1056,  7-0 
N.  E.  127,  189  Mass.  457. 

233.  The  acceptance  by  court  and  counsel 
of  the  testimony  certified  by  the  stenogra- 
pher and  copied  into  the  bill  of  exceptions  is 
sufficient  to  identify  it,  although  the  order 
of  the  court  with  reference  thereto  is  that 
the  testimony  reported  and  filed  by  the  sten- 
ographer is  to  be  copied  "by  the  clerk,"  and 
made  part  of  the  bill  of  exceptions.  Cottrell 
V.  Smokeless  Fuel  Co.  9:  1187,  148  Fed.  594, 
78  C.  C.  A.  366. 

234.  Evidence,  although  not  physically 
incorporated  in  the  bill  of  exceptions,  is  a 
part  of  it  in  a  legal  sense,  where  the  clerk 
certifies  the  skeleton  bill,  and,  along  with 
it,  the  stenographer's  certificate,  in  which 
the  oral  testimony  is  set  out,  accompanied 
by  the  exhibits,  means  for  identifying  which 
are  found  in  the  description  given  by  the 
witnesses  and  the  marks  found  on  the  pa- 
pers themselves,  corresponding  to  the  "ear- 
marks" given  in  the  skeleton  bill.  Acme 
Food  Co.  V.  Older,  17:  807,  61  S.  E.  235,  64 
W.  Va.  255. 

235.  The  impressions  made  on  the  minds 
of  jurors  in  a  condemnation  proceeding,  by 
a  view  of  the  premises,  are  not  of  them- 
Digest  1-52  L.R.A.(N.S.) 


selves  evidence  in  the  cause;  and  the  fact 
that  they  cannot  be  included  in  the  bill  of 
exceptions  does  not  deprive  a  reviewing 
coxnt  of  the  right  to  reverse  the  judgment 
rendered  in  the  trial  court  as  against  the 
weight  of  evidence,  where  the  bill  of  excep- 
tions contains  all  the  evidence  given  at  the 
trial,  and  the  record  is  otherwise  complete. 
Zanesville,  M.  &  P.  R.  Co.  v.  Bolen,  11:  1107, 
81  N.  E.  681,  76  Ohio  St.  376. 

236.  The  appellate  court  is  not  precluded 
from  considering  exceptions  which  have  been 
made  a  matter  of  record  by  the  signature 
and  seal  of  the  trial  judge  because  the  record 
proper  has  been  blended  with  the  bill  of  ex- 
ceptions and  the  whole  treated  as  a  bill  of 
exceptions.  Davidson  v.  Fraser,  4:  1126,  84 
Pac.  695,  36  Colo.  1. 

237.  A  bill  of  exceptions  reciting  that  a 
motion  was  submitted  to  the  court  upon 
certain  specified  matters  set  forth  in  it 
sufficiently  declares  that  the  motion  was 
submitted  upon  such  matters,  and  not  upon 
others  not  included  in  the  bill.  Bond  v. 
United  Railroads,  48:  687,  113  Pac.  366,  159 
Cal.  270. 

AVliat  should  be  presented  by. 
See  also  supra,  191. 

238.  Rules  of  the  district  court  cannot  be 
judicially  noticed  by  the  supreme  court  of 
Nebraska;  and  where  any  right  is  claimed 
under  such  rules  they  must  be  called  to  its 
attention  by  being  embodied  in  the  bill  of 
exceptions.  J.  I.  Case  Threshing  Mach.  Co, 
V.  Meyers,  9:  970,  111  N.  W.  002,  78  Neb.  685. 

239.  Affidavits,  or  other  evidence  used  in 
support  of  a  motion  objecting  to  the  juris- 
diction of  the  district  court,  cannot  be  con- 
sidered on  appeal,  unless  made  a  part  of  the 
bill  of  exceptions.  Burrowes  v.  Chicago, 
B.  &  Q.  R.  Co.  34:  220,  123  N.  W.  1028,  85 
Neb.  497,  126  N.  W.  1084,  87  Neb.  142. 

240.  Conduct  by  counsel  in  argument,  not 
shown  by  the  bill  of  exceptions,  cannot  be 
considered  on  appeal.  State  v.  Feeley, 
3:  351,  92  S.  W.  603,   194  Mo.  300. 

241.  The  supreme  court  cannot  review 
the  trial  court's  action  in  proceeding  to 
judgment  notwithstanding  a  party's  offer 
to  introduce  further  testimony,  where  the 
bill  of  exceptions  does  not  set  out  the  prof- 
fered testimony.  United  Hardware-Furni- 
ture Co.  V.  Blue,  35:  1038,  52  So.  364,  59 
Fla.  419. 

242.  The  omission  from  a  transcript  of 
the  reporter's  notes  of  the  trial  of  an  ex- 
hibit consisting  of  a  volume  of  public  stat- 
utes will  not  preclude  the  court  from  con- 
sidering such  notes  as  a  bill  of  exceptions, 
for  the  purpose  of  determining  the  correct- 
ness of  a  ruling  on  motion  for  nonsuit, 
where  the  court  has  access  to  copies  of  the 
omitted  volume.  Gobbi  v.  Dileo,  34:  951, 
111  Pac.  49,  113  Pac.  57,  58  Or.  14. 

243.  A  bill  of  exceptions  is  unavailing  to 
raise  the  objection  that  a  witness  was  re- 
quired to  be  cross-examined  as  to  matter 
not  testified  to  in  chief,  which  does  not  pur- 
port to  contain  all  his  testimony  on  direct 
examination.  First  Nat.  Bank  v.  McCul- 
lough,  17:  1 105,  93  Pac.  366,  50  Or.  508. 

244.  Written  proofs  of  death  and  death 


76 


APPEAL  AND  ERROR,  IV.  o,  3— p,  1. 


claim,  and  the  rulings  excliiding  same  from 
evidence,  cannot  be  considered  on  appeal  in 
an  action  to  recover  on  a  mutual  benefit 
certificate,  if  they  were  not  copied  or  di- 
rected to  be  copied  into  the  bill  of  excep- 
tions or  identified  by  the  trial  judge.  Na- 
tional Annuity  Asso.  v.  McCall,  48:  418, 
146  S.  W.  125,   103  Ark.  201. 

245.  To  warrant  consideration  on  appeal 
of  the  admission  of  irrelevant  evidence,  the 
bill  of  exceptions  must  show  the  irrelevancy. 
Spearman  v.  State,  44:  243,  152  S.  W.  915, 
—  Tex.  Grim.  Rep.  — . 

246.  The  question  of  the  sufficiency  of  the 
evidence  to  support  a  conviction  cannot  be 
reviewed  on  appeal  if  neither  the  motion 
for  new  trial,  nor  any  exception  to  the  rul- 
ing thereon,  is  preserved  in  the  bill  of  ex- 
ceptions. People  v.  Jennings,  43:  1206,  96 
N.  E.  1077,  252  111.  534. 

247.  A  bill  of  exceptions  relating  to  the 
prayer  for  instructions  need  not  set  out 
evidence  on  which  the  prayer  depends  to  war- 
rant consideration  of  such  evidence  in  con- 
nection with  the  prayer,  if  the  evidence  is 
set  out  in  a  prior  bill  of  exceptions,  and  the 
bill  dealing  with  the  prayer  commences 
with  the  statement,  "the  testimony  being 
closed"  thereby  sufficiently  referring  to  what 
had  preceded  to  warrant  a  resort  to'*the  first 
bill  to  ascertain  from  the  evidence  the  cor- 
rectness of  the  prayer.  Di  Giorgio  Import- 
ing &  S.  S.  Co.  V.  Pennsylvania  R.  Co.  8:  108, 
65  Atl.  425,  104  Md.  693. 

248.  A  ruling  on  a  motion  to  strike  a  re- 
joinder cannot  be  considered  on  appeal 
•where  the  replication  does  not  appear  in  the 
bill  of  exceptions.  ./Etna  L.  Ins.  Co.  v.  Las- 
eeter,  15:  252,  45  So.  166,  153  Ala.  630,  over- 
ruled in  St.  Louis  &  S.  F.  R.  Co.  v.  Phillips, 
51  So.  639,  165  Ala.  504. 

249.  Rulings  on  motions  to  strike  plead- 
ings which  are  not  shown  in  the  bill  of 
exceptions  cannot  be  considered  an  appeal. 
Shahan  v.  Brown,  43:  792,  60  So.  891,  179 
Ala.  425. 

250.  The  action  of  the  trial  court  in  pass- 
ing upon  a  motion  to  make  a  complaint  more 
definite  and  certain  cannot  be  reviewed  upon 
appeal,  unless  the  motion  is  preserved  in  the 
bill  of  exceptions.  Masoner  v.  Bell,  18:  166, 
96  Pac.  239,  20  Okla.  618. 

3.  Signing;  settling;  practice;  authen- 
tication. 

(See   also   same   heading   in  Digest  L.R.A. 
1-10.) 

See  also  infra,  254,  692. 

251.  The  limitation  of  a  bill  of  exceptions, 
the  exceptions  in  which  were  amplified  and 
changed  by  counsel,  by  the  trial  court  upon 
signing  it  to  the  matters  and  things  ob- 
jected to  at  the  time  the  court  finished  the 
charge,  and  to  the  manner  and  form  in 
which  the  matters  and  things  objected  to 
were  then  presented,  is  proper.  Ingram  v. 
Kansas  City  S.  &  G.  R.  Co.  50:  688,  64  So. 
146,  134  La.  377. 

252.  The  judge  appointed  to  preside  for 
Digest  1-52  L.R.A.(N.S.) 


the  remainder  of  the  term  upon  the  regular 
judge  becoming  incapacitated  has  jurisdic- 
tion to  deny  a  motion  to  set  aside  the  ver- 
dict because  it  was  contrary  to  the  law 
and  the  evidence,  enter  judgment  thereon, 
and  sign  a  bill  of  exceptions  to  permit  a  re- 
view of  the  judgment,  although  the  report 
by  a  private  stonograpiier  of  tlie  evidence  is 
only  substantially  correct,  containing  omis- 
sions, he  did  not  hear  or  see  the  witnesses, 
and  the  statute  provides  that  tlie  judge  shall 
sign  the  tendered  bill  of  exceptions  which 
shall  become  part  of  the  record  in  the  case, 
since  the  judge  referred  to  is  not  neces- 
sarily limited  to  the  one  who  heard  the  tes- 
timony in  the  case,  even  in  matters  depend- 
ing on  the  weight  of  the  evidence.  Southall 
V.  Evans,  43:  468,  76  S.  E.  929,  114  Va.  461. 

253.  The  supreme  court  of  Nebraska  will, 
on  its  own  motion,  refuse  to  consider  a 
document  appearing  in  the  record  and  pur- 
porting to  be  a  bill  of  exceptions,  when  not 
authenticated  as  such  by  the  certificate  of 
the  clerk  of  the  trial  court.  State  Bank 
V.  Bradstreet,  38:  747,  130  N,  VV.  1038,  89 
Neb.  186. 

4.  Time  for. 

(See  also   same  heading   in   Digest   L.R.A. 
1-10.) 

254.  The  legislature  may  empower  a  judge 
to  settle  a  bill  of  exceptions  after  the  con- 
stitutional termination  of  his  term  of  office. 
Larkin  v.  Saltair  Beach  Co.  3:  982,  83  Pac. 
686,  30  Utah,  86. 

255.  A  bill  of  exceptions  not  filed  within 
the  time  fixed  by  the  trial  court  when  the 
judgment  was  rendered  cannot  be  consid- 
ered on  appeal.  Nashville  R.  &  Light  Co. 
v.  Trawick,  10:  191,  99  S.  W.  695,  118  Tenn. 
273. 

.  256.  A  bill  of  exceptions  will  be  stricken 
from  the  records  where  it  is  filed  in  ac- 
cordance with  an  order  of  the  trial  court 
made  at  a  term  subsequent  to  that  at  which 
the  judgment  was  rendered,  extending  the 
time  witliin  which  it  is  to  be  tendered. 
Thomas  v.  Bell,  31:664,  111  Pac.  76,  49 
Colo.  76. 
Excluding  holiday. 

257.  That  the  first  day  of  a  term  of  court 
falls  on  a  legal  holiday  does  not  extend  the 
time  for  filing  a  bill  of  exceptions  for  the 
filing  of  which  appellant  had  been  allowed 
until  the  first  day  of  such  term.  Cart- 
wright  V.  Liberty  Teleph.  Co.  12:  1125,  103 
S.  W.  982,  205  Mo.   126. 

• 

p.  Assignments  of  error;  joinder  in 
error. 

1.  In  general;  necessity  of. 


(See   also   same   heading   in  Digest   L.lt.A, 
1-10.) 


See  also  supra,  213. 


►^-atci 


APPEAL  AND  ERROR,  IV.  p,  2. 


257a.  The  copying,  through  oversight,  of 
the  correspondingly  numbered  findings  of 
fact  instead  of  tlie  numbered  conclusions  of 
law  to  which  assignments  of  error  refer 
will  not  preclude  such  assignments  from 
being  considered.  Jensen  v.  Griffin,  50: 
1128,  144  N.  W.  119,  32  S.  D.  61.3. 

258.  Error  cannot  be  assigned  for  the  first 
time  in  a  reply  brief,  where  the  statute 
provides  that  the  petition  for  appeal  or 
writ  of  error  shall  assign  errors,  although 
the  petition  states  that  there  are  other  ob- 
jections to  the  rulings  of  the  trial  court 
than  those  specified.  American  Locomotive 
Co.  V.  Hoffman,  6:  252,  54  S.  E.  25,  105  Va. 
343. 

259.  Assignments  of  error  attached  to  the 
transcript  of  record  with  paper  fasteners 
subject  to  easy  detachment  and  removal  will 
not  be  considered  by  the  court.  Hunter 
V.  Louisville  &  N.  R.  Co.  9:  848,  43  So.  802, 
150  Ala.  594. 

Necessity. 

See  also  supra,  12G;  infra,  760. 

260.  Questions  not  presented  to  the  court 
below  in  the  proper  way,  nor  to  the  su- 
preme court  by  assignment  of  error,  are  not 
reviewable  bv  it.  Chavez  v.  Myer,  6:  793, 
85  Pac.  233,  13  N.  M.  368. 

261.  The  appellate  court  will  consider 
onlj'  such  errors  as  are  assigned,  unless  the 
matter  goes  to  the  jurisdiction  of  tlie  court. 
Teakle  v.  San  Pedro,  L.  A.  &  S.  L.  R.  Co. 
10:  486,  90  Pac.  402,  32  Utah,  276. 

262.  The  circuit  court  of  appeals  will  not, 
in  a  cause  arising  in  Alaska,  reverse  a  judg- 
ment upon  an  error  not  assigned  which  ap- 
pears upon  the  record,  where  the  one  whom 
the  error  benefited  made  no  appearance,  and 
the  judgment  was  right  as  to  all  parties 
except  one  defendant  and  as  to  him  was 
right  in  part,  and  cannot  be  changed  except 
by  reversing  the  whole  judgment  and  send- 
ing the  case  back  for  new  trial.  Kelley  v. 
McNamee,  22:  851,  164  Fed.  369,  90  C.  C.  A. 
357. 

263.  In  an  action  by  creditors  of  a  cor- 
poration to  recover  of  stockholders  thereof 
unpaid  stock  subscriptions,  the  point  that 
a  judgment  obtained  by  one  of  the  plain- 
tiffs against  the  corporation  was  rendered 
without  jurisdiction  of  the  corporation  is 
not  available  in  the  appellate  court,  where 
there  is  no  assignment  of  error  challenging 
the  finding  of  the  trial  court  that  srtich  judg- 
ment was  duly  recovered.  Randall  Print- 
ing Co.  v.  Sanitas  Mineral  Water  Co. 
43:  706,  139  N.  W.  606,  120  Minn.  268. 
Joint  assignments. 

264.  An  assignment  of  error  is  not  merely 
joint  as  to  both  appellants,  but  is  separate 
as  to  each,  where  the  introductory  part  is 
to  the  effect  that  appellants  (naming  them) 
"both  jointly  saj',  and  each  of  them,  sever- 
ing from  the  other,  separately  and  severally 
says,  that  there  is  manifest  error  in  the 
judgment  and  proceedings  in  this  cause,  and 
in  the  making  and  entering  of  the  record  of 
the  interlocutory  order  by  the  court,  in 
this," — followed  by  a  number  of  specifica- 
tions of  error.  Southern  Indiana  R.  Co.  v. 
Digest  1-52  LR.A.(N.S.) 


Indianapolis  &  L.  R.  Co.  13:  197,  81  N.  E> 
65,  168  Ind.  360. 

2.  Sufficiency;  definiteness. 

(See   also    same   heading    in   Digest   L.R.A^ 
1-70.) 

On   motion   for  new  trial,   see  New   Tbial, 

82. 
See  also  supra,  210. 

265.  An  assignment  that  the  findings  of 
fact  "do  not  support  the  findings  and  con- 
clusion of  law"  will  be  treated  as  alleging 
that  the  facts  found  do  not  support  the 
judgment  rendered,  where  the  only  conclu- 
sion of  law  reached  by  the  trial  court  was 
that  the  plaintiff  was  entitled,  under  the 
facts  found,  to  a  judgment.  Union  Teleph. 
Co.  V.  Ingersoll,  52:  713,  144  N.  W.  5Q0, 
178   Mich.    187. 

266.  The  form  of  the  assignment  of  error 
is  unimportant  in  case  of  a  fundamental 
error  apparent  from  the  record.  Holt  v. 
Guerguin,  50:  1136,  1C3  S.  W,  10,  —  Tex.  — . 

267.  An  assignment  in  the  supreme  court 
of  error  in  an  intermediate  appellate  court 
in  affirming  a  judgment  is  sufficient  to  pre- 
sent for  review  in  the  supreme  court  every 
error  assigned  in  the  intermediate  court. 
Van  Cleef  v.  Chicago,  23:  636,  88  N.  E.  815, 
240  111.  318. 

268.  Upon  appeal  from  the  superior  court 
the  assignments  must  allege  error  on  the 
part  of  that  court,  and  not  merely  upon  the 
part  of  the  trial  court.  Gibson  v.  Bessemer 
&  L.  E.  R.  Co.  27:  689,  75  Atl.  194,  226  Pa. 
198. 

269.  The  fact  that  it  is  not  specifically 
stated  in  a  petition  for  a  writ  of  error  that 
a  ruling  of  the  court  upon  this  point  or 
that  is  assigned  as  error  does  not  show 
that  there  is  no  proper  assignment  thereof, 
where  the  instructions  asked  for  by  the  par- 
ties are  covered  by  the  bill  of  exceptions, 
and  the  points  upon  which  reliance  is  had 
to  secure  a  reversal  are  clearly  stated  and 
can  leave  no  doubt  as  to  the  questions  pre- 
sented. Norfolk  &  W.  R.  Co.  v.  Bondurant, 
15:  443,  59  S.  E.  1091,  107  Va.  515. 

270.  In  the  Federal  courts  an  assign- 
ment as  error  of  the  rejection  of  an  offer 
to  prove  certain  facts  without  propounding 
any  questions  to  a  witness  properly  raises 
the  issue  of  the  admissibility  of  competent 
proof  of  those  facts,  which  will  be  deter- 
mined by  the  appellate  courts  on  its  merits, 
and  on  the  presumption  that  the  offer  waa 
made  in  good  faith.  Platte  Valley  Cattle 
Co.  V.  Bosserman-Gates  Live  Stock  &  L.  Co. 
45:  1137,  202  Fed.  692,  121  C.  C.  A.  102. 

271.  Whether  or  not  there  was  error  in 
not  sustaining  any  of  the  demurrers  to  a 
pleading  will  not  be  considered  on  appeal 
where  the  ruling  of  the  court  is  presented 
as  a  whole  and  one  of  the  demurrers  waa 
properly  overruled,  ^tna  L.  Ins.  Co.  v. 
Lasseter.  15:  252,  45  So.  166,  153  Ala.  630. 

272.  Upon  appeal  from  a  judgment  ren- 
dered on  affidavits  for  possession  and  de- 
fense in  a  proceeding  by  a  landlord  to  re- 


78 


APPEAL  AND  ERROR,  IV.  p,  3. 


cover  possession  of  the  leasehold,  assign- 
ments of  error,  questioning  the  sufficiency 
of  the  affidavits  sufficiently  comply  with  a 
rule  requiring  an  assignment  of  errors  re- 
lied upon  separately  and  specifically  stated. 
Nicolopole  V.  Love,  47:  949,  39  App.  D.  C. 
343. 
Sufficiency  of  evidence. 

273.  An  assignment  that  the  judgment  is 
not  supported  by  sufficient  evidence  is  suffi- 
cient to  raise  the  question  as  to  its  suffi- 
ciency to  support  the  finding  in  a  case  tried 
by  the  court  without  a  jui-y,  under  a  statute 
designating  as  a  ground  for  new  trial  that 
"the  verdict,  report,  or  decision  is  not  sus- 
tained by  sufficient  evidence."  Schiller  v. 
Blyth  &  Fargo  Co.  8:  1167,  88  Pac.  648,  15 
Wyo.  304. 

.  274.  Upon  appeal  from  a  decree  refusing 
•  specific  performance  of  a  contract  to  exe- 
cute a  lease  in  accordance  with  the  agree- 
ment of  an  agent,  on  the  ground  of  his  lack 
of  authority  to  bind  his  principal,  a  specifi- 
cation of  insufficiency  of  evidence  to  sus- 
tain the  decree  is  sufficient  which  states 
that  it  is  insufficient  and  sets  out  what  it 
shows,  under  a  statute  providing  that  when 
exception  is  to  a  decision  upon  the 
grounds  of  insufficiency  of  evidence  the  ob- 
jection must  specify  the  particulars  in 
which  it  is  alleged  to  be  insufficient.  Spong- 
berg  v.  First  Nat.  Bank,  31:  736,  110  Pac, 
716,  18  Idaho,  524. 

275.  A  specification  of  error  to  the  effect 
that  the  evidence  does  not  support  the  find- 
ings is  sufficient  to  bring  to  the  reviewing 
court  the  question  of  the  correctness  of  the 
•conclusions  of  law.  Mentone  Irrigation  Co. 
V.  Redlands  Electric  Light  &  P.  Co.  22:  382, 
100  Pac.  1082,  155  Cal.  323. 

276.  An  objection  that  the  interlocutory 
order  appointing  appraisers  to  assess  dam- 
ages in  condemnation  proceedings  does  not 
show  an  effort  to  agree  as  to  the  compensa- 
tion for  the  taking  of  land  described  in  the 
amended  complaint,  there  having  been  a 
slight  change  in  the  description  of  the  real 
estate  in  the  latter  pleading,  is  not  avail- 
able under  a  general  assignment  that  the 
Interlocutory  order  is  not  sustained  by  suffi- 
cient evidence.  Southern  Indiana  R.  Co.  v. 
Indianapolis  &  L.  R.  Cto.^13:  197,  81  N.  E. 
65,  168  Ind.  360.  J'  '  "  '' 
Pleadings. 

277.  The  supreme  court  will  not  pass  up- 
on assignments  of  error  based  upon  the  ac- 
tion of  the  court  below  in  sustaining  a  de- 
murrer to  a  pleading,  where  the  party  com- 
plaining fails  to  comply  with  that  part  of 
court  rule  No.  25  which  requires  him  to  set 
forth  the  material  parts  of  the  pleading  up- 
on which  he  relies,  together  with  such  other 
statements  from  the  record  as  are  necessary 
to  a  full  understanding  of  the  questions  pre- 
sented to  this  court  for  decision,  so  that  no 
examination  of  the  record  itself  need  be 
made  in  this  court,  Eberle  v.  Drennan, 
51:  68,  136  Pac.  162,  40  Okla.  59. 
Instrnctions. 

278.  An  assignment  of  error  that  the 
court  failed  to  charge  the  jury  upon  all 
material  issues,  without  specifying  upon 
digest  1-52  L.R.A.(N.S.) 


what  issues  the  court  failed  to  charge,  is 
too  general  to  permit  of  consideration.  Tar- 
ver  V.  Deppen,  24:  1161,  65  S.  E.  177,  132 
Ga.   798. 

279.  An  assignment  of  error  that  the 
charge  of  the  court  was  not  applicable  to 
the  facts,  and  was  misleading,  is  too  gener- 
al, and  cannot  be  considered,  because  it 
does  not  appear  wherein  the  charge  was  in- 
applicable or  misleading.  Tarver  v.  Dep- 
pen, 24:  1161,  65  S.  E.  177,  132  Ga.  798. 

280.  A  recital  in  the  defendant's  brief  on 
appeal  that  "the  court  erred  in  overruling 
the  motion  of  the  defendant  made  at  the 
close  of  the  evidence,  that  the  jury  be  di- 
rected to  return  a  verdict  for  defendant," 
sufficiently  assigns  error  as  to  the  over- 
ruling of  a  motion  to  instruct  the  jury  to 
find  in  defendant's  favor,  under  the  Neb. 
Acts  1907,  chap.  162.  Waxham  v.  Fink,  28: 
367,  125  N.  W.  145,  86  Neb.  180. 

New  trial. 

281.  The  granting  of  a  motion  for  new 
trial  will  not  be  upheld  upon  a  ground  other 
than  that  specified  by  the  court,  if  counsel 
points  out  no  other  prejudicial  error  in 
the  record  but  leaves  the  court  to  find  one 
if  it  exists.  Harrington  v.  Butte  Miner  Co. 
51:  369,   139  Pac.  451,  48  Mont.  550. 

3.  Cross  errors. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

See  also  infra,  389,  549. 

282.  Cross  assignments  of  error  will  not 
be  considered  where  appellees  ask  an  af- 
firmance of  the  judgment,  which  can  be 
done  witliout  considering  them.  Baldwin 
V.  Moroney,  30:  761,  91  N.  E.  3,  173  Ind. 
574. 

283.  The  appellate  court  has  no  juris- 
diction to  entertain  a  cross  petition  in  er- 
ror which  is  not  filed  within  the  time  pre- 
scribed by  statute  for  filing  petitions  for 
writs  of  error.  Wails  v,  Farrington,  35: 
1174,  116  Pac.  428,  27  Okla.  754. 

284.  One  who  takes  no  appeal  or  writ  of 
error  cannot,  by  assigning  cross  errors,  con- 
fer jurisdiction  on  a  Federal  court  to  con- 
sider or  decide  rulings  either  for  or  against 
him  in  the  court  below.  O'Neil  v.  Wolcott 
Mining  Co.  27:  200,  174  Fed.  527,  98  C.  C.  A. 
309. 

285.  An  answer  to  an  appeal,  asking  for 
an  amendment  of  the  judgment,  must  be 
filed  within  three  days  after  the  case  has 
been  set  for  hearing  in  this  court,  and,  un- 
less it  is  timely  filed,  it  will  be  dismissed. 
Martin  v.  Board  of  Fire  Comrs.  44:  68, 
61  So.  197,  132  La.  188. 

286.  Where  the  case  against  one  of  two 
codefendants  has  been  dismissed,  this  co- 
defendant  is  without  right  to  answer  an 
appeal  taken  by  the  other  codefendant,  and 
to  ask  for  the  amendment  of  the  judgment 
rendered  in  favor  of  the  plaintiff.  Martin 
V.  Board  of  Fire  Comrs.  44:  68,  61  So.  197, 
132  La.  188.  .        ,   :, 


APPEAL  AND  ERROR,  IV.  q— V.  a,  1. 


79 


q.  Waiver  of  assignments  of  error. 

(See   also   same   heading   in   Digest   L.R.A. 
1-70.) 

Exceptions    in    mandamus    proceedings,    see 
Mandamus,  119. 

r.  Briefs. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

See  also  supra,  258;  infra,  364,  481. 

287.  In  preparing  a  brief,  it  is  the  duty 
of  counsel  for  an  appellant  to  cite  the  page 
of  the  transcript  of  the  record  upon  which 
they  rely  to  support  an  assignment  of  er- 
ror.    Ellis  V.  State,  43:  811,  128  Pac.  1095, 

8  Okla.  Crim.  Rep.  522. 

288.  When  typewritten  briefs  are  filed  in 
this  court,  they  should  be  so  prepared  that 
they  may  be  read  and  understood  by  the 
court.     Cline  v.  State,  45:  108,  130  Pac.  510, 

9  Okla.  Crim.  Rep.  40. 

289.  Although  in  ordinary  cases  the 
briefs  of  counsel  which  do  not  comply  with 
a  rule  of  court  requiring  citations  of  Okla- 
homa cases  to  be  by  volume  and  page  of 
Oklahoma  reports  will  not  be  considered, 
yet  in  a  capital  case  in  which  the  extreme 
penalty  of  the  law  has  been  assessed  by 
the  jury,  the  rule  may  be  relaxed  and  the 
briefs  treated  as  though  in  strict  compli- 
ance to  the  rules  of  court.  Henry  v.  State, 
52:113,  136  Pac.  982,  10  Okla.  Crim.  Rep. 
369. 

290.  All  points  relied  upon  for  reversal 
on  appeal  must  be  properly  made  in  the 
brief  or  they  will  be  deemed  waived;  and 
it  is  not  sufficient  to  assert  in  general 
terms  that  a  ruling  of  the  trial  court  is 
wrong,  but  a  fair  effort  must  be  made  to 
prove  that  it  is  wrong,  or  the  point  will  not 
be  considered  as  having  been  made.  Alli- 
son v.  Bryan,  30:  146,  109  Pac.  934,  26 
Okla.  520. 

291.  Exceptions  not  discussed  ii^.  the  brief 
cannot  be  brought  to  the  attention  of  the  ap- 
pellate court  after  the  time  for  filing  the 
brief  has  expired.  Chicago,  B.  &  Q.  R.  Co. 
V.  Lampman,  25:  217,  104  Pac.  533,  18  Wyo. 
106. 

292.  A  judgment  enjoining  the  comple- 
tion of  a  levee  to  protect  real  estate  from 
flood  water  of  a  river  is  temporary,  and 
not  final,  within  the  meaning  of  a  statute 
governing  the  practice  as  to  filing  briefs 
upon  appeal  from  temporary  injunction, 
if  it  also  contains  a  provision  as  to  pro- 
tection of  complainant's  property,  the  in- 
tent apparently  being  that  the  levee  may 
be  completed  if  complainant's  property  is 
protected.  Ft.  Worth  Improv.  Dist. 
No.  1  V.  Ft.  Worth,  48:  994,  158  S.  W.  164, 
—  Tex.  — . 

Digest  1-52  Ii.R.A.(N.S.) 


F.  Objections   and   exceptions;   raising 
questions  in  lower  court. 

a.  Definiteness ;    sufficiency. 

1.  In  general. 

(See   also   same   heading   in  Digest  L.R.A. 
1-70.) 

As  to  bill  of  exceptions,  see. supra,  IV.  0. 
Matters  as  to  trial,  see  Trial,  I.  f. 
See  also  supra,  291. 

293.  Exceptions  to  a  charge  of  the  court 
must  point  out  some  definite  or  specific  de- 
fect. Russell  V.  Olson,  37:  1217,  133  N.  W. 
1030,  22  N.  D.  410. 

294.  An  exception  of  a  general  charac- 
ter does  not  cover  specific  objections  which, 
in  fairness  of  the  court,  ought  to  have  been 
called  to  its  attention  in  order  that,  if 
necessary,  it  could  correct  or  modify  them. 
Ingram  v.  Kansas  City  S.  &  G.  R.  Cq.  50: 
688,  64   So.   146,   134   La.   377. 

295.  Error  in  the  acceptance  of  jurors  can- 
not be  preserved  by  the  mere  objection, 
"challenged  for  cause."  State  v.  Forsha, 
4:  576,  88  S.  W.  746,  190  Mo.  296. 

296.  A  general  exception  to  a  refusal  to 
submit  to  the  jury  a  number  of  special  in- 
terrogatories is  insufficient  if  any  one  of 
them  be  improper.  Arkansas  Valley  &  W. 
R.  Co.  V.  Witt,  13:  237,  91  Pac.  897,  19  Okla. 
262. 

297.  The  response  of  the  judge  to  a  ques- 
tion whether  he  would  hold  court  on  a  holi- 
day, that  he  knew  of  no. law  to  prevent  it, 
the  case  proceeding  on  that  day  without 
further  objection,  is  not  an  objection  and 
adjudication  in  the  particular  case,  so  as 
to  be  available  on  appeal.  State  v.  Cook, 
15:  1013,  59   S.  E.   862,  78  S.  C.  253. 

298.  An  objection  the  day  after  a  judg- 
ment was  rendered,  to  the  entering  of  any 
judgment  upon  the  verdict  rendered,  is  not 
sufficient  to  question  the  sufficiency  of  the 
form  of  the  verdict.  Walter  v.  Louisville 
R.  Co.  43:  126,  150  S.  W.  824,  150  Ky.  652. 

299.  An  objection  that  a  decree  of  adop- 
tion entered  by  a  probate  court  cannot  be 
set  aside  on  the  facts  entitles  one  appeal- 
ing from  a  subsequent  decree  attempting  to 
set  it  aside,  to  raise  the  question  whether 
or  not  petitioner  is  entitled  on  all  the  facts 
to  any  relief,  and  to  raise  objections  not 
specified  as  objections  to  the  decree,  where 
under  such  an  appeal  the  case  is  heard  de 
novo  in  the  appellate  court.  Phillips  v. 
Chase,  30:  159,  89  N.  E.  1049,  203  Mass. 
556. 

300.  The  question  of  ratification  of  a  de- 
cree of  adoption  procured  by  fraud,  or  of 
laches  and  the  statute  of  limitations,  can- 
not be  raised  on  appeal  from  a  subsequent 
decree  of  the  probate  court  setting  aside 
the  former  one,  where  no  objections  to  the 
decree  on  those  grounds  were  filed  on  ap- 
peal, although  upon  such  an  appeal  the  case 
is  heard  de  novo  in  the  appellate  court. 
Phillips  v.  Chase,  30:  159,  89  N.  E.  1049, 
203  Mass.   556. 


»0 


APPEAL  AND  ERROR,  V.  a,  2. 


To  overruling  of  demurrer. 

301.  A  several  exception  to  rulings  on  de- 
murrers to  several  paragraplis  of  conii)laint 
is  shown  by  a  recital  of  record  that  the  de- 
murrers to  the  complaint  and  to  each  para- 
graph thereof  are  overruled,  to  which  rul- 
ing defendant,  at  the  time,  severally  ex- 
cepts, so  as  to  permit  a  review  of  tiie  rul- 
ings on  appeal.  Bedford  Quarries  Co.  v. 
Bough,  14:  418,  80  N.  E.  529,  108  Ind.  671. 

302.  Overruling  demurrers  to  the  several 
paragraphs  of  the  complaint  is  brought  to 
the  attention  of  the  appellate  court  by  an 
exception  to  the  overruling  of  the  several 
demurrers  to  the  "complaint,"  where  all 
paragraphs  relate  to  the  same  injury,  and 
the  record  shows  that  the  only  complaint 
ever  on  file  appears  in  it.  Chicago,  I.  &  L. 
R.  Co.  V.  Barker,  17:  542,  83  N.  E.  369,  169 
Ind.  670. 

To  argument  of  counsel. 

303.  An  exception  to  remarks  of  counsel 
in  opening  his  case  to  the  jury  raises  no 
question  for  the  consideration  of  the  ap- 
pellate court.  Ickcs  v.  Ickes,  44:  1118,  85 
Atl.  885,  237  Pa.  582. 

To  findings  or  conclusions  of  court. 

304.  A  general  exception  to  findings  of 
fact  and  conclusions  of  law  is  not  suliicient 
to  permit  the  appellate  court  to  review  the 
evidence.  Sallaske  v.  Fletcher,  47:  320,  132 
Pac.  648,  73  Wash.  593. 

305.  A  general  exception  to  a  conclusion 
of  law  that  plaintiff  is  entitled  to  judgment 
raises  a  question  of  law  with  respect  to  the 
right  to  maintain  the  action.  Falk  v.  Amer- 
ican West  Indies  Trading  Co.  i:  704,  73  N. 
E.  239,  180  N.  Y.  445. 

306.  Error  in  allowing  interest  on  a  note 
at  a  greater  amount  than  is  authorized  by 
statute  is  sufficiently  questioned  under  § 
5055,  2  Ballinger's  Anno.  Codes  &  Statutes, 
by  an  exception  "that  the  evidence  is  insuffi- 
cient to  support  the  finding,  and  that  the 
same  is  contrary  to  the  evidence."  Bank  v. 
Doherty,  4:  1191,  84  Pac.  872,  42  Wash.  317. 

307.  An  exception  to  findings  of  fact 
made  by  the  trial  court  must  specify  the 
particular  finding  or  findings  objected  to, 
where  more  than  one  finding  is  made,  and 
a  general  objection  is  insufficient  to  present 
any  question  for  review,  unless  all  the  find- 
ings are  incorrect,  and  an  objection  to  a 
finding,  where  no  requested  finding  on  the 
proposition  is  asked,  which  points  out  coun- 
sel's theory  or  contention,  should  clearly 
indicate  the  claimed  error.  Southard  v. 
Latham,  50:  871,  138  Pac.  205,  18  N.  M.  503. 

2.  To  evidence. 

a.  Admission  of. 

I 

■j(Bee  also  same   heading  in  Digest  L.R.A. 

:         1-10.) 

See  also  Evidence,   1643. 

y  308.  Objections  to  testimony,  made  in  the 
lower  court,  will  only  be  considered  on  ap- 
peal where  the  precise  error  complained  of 
is  clearly  pointed  out  in  the  brief  of  counsel. 
Digest  1-52  KR.A.(N.S.) 


with  a  statement  of  the  testimony  objected 
to,  so  as  to  enable  the  court  to  understand 
the  questions  presented.  Wood  v.  State, 
45:673,  112  Pac.  11,  4  Okla.  Crim.  Rep. 
436. 

309.  An  objection  to  the  introduction  of 
any  evidence,  upon  the  ground  that  the  com- 
plaint does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action,  must  specially 
point  out  wherein  the  com[)laint  i-;  defective. 
Sleeper  v.  Baker,  39:864,  134  1m  .  W.  716, 
22  N.  D.  386. 

310.  General  objections  to  evidence  pro- 
posed, without  stating  the  precise  grounds  of 
objections,  are  vague  and  nugatoi-y,  and  are 
without  weight  before  an  appellate  court, 
unless  the  evidence  objected  to  is  palpably 
prejudicial,  improper,  and  inadmissible  for 
any  purpose  or  under  any  circumstances. 
Pittman  v.  State,  8:  509,  41  So.  385,  51  Fla. 
94. 

311.  Failure  to  state  the  ground  for  objec- 
tion to  the  admission  of  evidence  is  not 
fatal  to  consideration  of  the  question  on 
appeal  if  the  only  possible  ground  is  obvi- 
ous. Johnson  v.  United  States,  18:  1194, 
163  Fed,  30,  89  C.  C.  A.  508. 

312.  The  appellate  court  will  not  regard 
an  exception  to  the  taking  of  a  deposition, 
made  while  it  is  in  progress,  and  noted  in 
the  deposition,  unless  it  is  brought  to  the 
notice  of  tlie  court  below,  before  hearing  on 
the  merits  begins,  by  motion  to  suppress. 
Whitehouse  v.  Jones,  12:  49,  55  S.  E.  730, 
GO  W.  Va.  680. 

313.  Evidence  offered  in  support  of  an  ele- 
ment of  damage  alleged  in  the  declaration, 
and  allowed  over  a  general  objection,  will 
not  be  held  error  if  it  be  legally  pertinent 
or  relevant  on  any  aspect  of  the  case. 
Western  U.  Teleg.  Co.  v.  Wells,  2:  1072,  39 
So.  838,  50  Fla.  474. 

314.  One  relying  upon  a  general  exception 
to  evidence  in  a  Federal  court  must  show 
that  the  defects  in  tlie  evidence  admitted 
could  not  have  been  cured  by  the  party  of- 
fering it  if  his  attention  had  been  called  to 
those  relied  upon.  Wellington  v.  Pelletier, 
26:  719,  173  Fed.  908,  97  C.  C.  A.  458. 

315.  Reversal  for  admission  of  testimony 
of  persons  who  stated  that  they  were  in- 
habitants of  a  town  to  which  a  telegram 
was  sent,  and  knew  the  addressee,  and  could 
have  given  information  as  to  how  he  might 
have  been  reached,  in  an  action  to  recover 
damages  for  failure  to  deliver  the  message, 
will  not  follow  because  the  witnesses  were 
not  shown  to  have  been  in  the  place  at  the 
time  the  message  was  received,  if  such 
ground  was  not  stated  in  the  objection. 
Western  U.  Teleg.  Co.  v.  Alford,  50:  94,  161 
S.  W.   1027,  110  Ark.  379. 

Wliat   questions  raised. 

310.  An  objection  to  the  admission  of  any 
evidence  which  is  based  upon  and  calls  at- 
tention to  substantial  defects  in  a  count  of 
a  complaint  merely,  will  not  reach  a  mis- 
joinder of  actions  or  formal  defects  in  plead- 
ing. Sleeper  v.  Baker,  39:  864,  134  X.  W. 
716.  22  N.  D.  386. 

317.  The  question  of  the  qualification  of 
witnesses  is  not  raised  by  an  objection  that 


APPEAL  AND  ERROR,  V.  a,  3. 


81 


the  evidence  is  immaterial,  incompetent,  and 
irrelevant.  People  v.  Burman,  25:  251,  117 
N.  W.  589,  154  Mich.  150. 

318.  An  objection  that  testimony  as  to 
the  intoxication  of  accused  is  incompetent, 
immaterial,  inadmissible,  and  not  proper  re- 
buttal is  not  sufficient  to  raise  the  question 
of  its  admissibility  without  requiring  a  pre- 
liminary statement  by  the  witnesses  of  the 
facts  on  which  their  opinions  are  based. 
Com.  V.  Eyler,  11:  639,  66  Atl.  74G,  217  Pa. 
612. 

b.  Exclusion. 

(See   also   same   heading   in  Digest  L.R.A. 
1-10.) 

See  supra,  76. 

3.  To  instmctiona. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

319.  Exceptions  reserved  to  the  instruc- 
tions of  the  trial  court  will  not  be  con- 
sidered on  appeal,  unless  the  brief  clearly 
points  out  the  alleged  defect  in  said  in- 
structions, or  unless  said  instructions  are 
fundamentally  wrong.  Wood  v.  State,  45: 
673,  112  Pac.  11,  4  Okla.  Crim.  Rep.  436. 

320.  An  exception  that  a  charge  is  con- 
trary to  law  is  too  general  to  be  of  avail  on 
appeal.  W.  T.  Walker  Furniture  Co.  v. 
Dyson,  19:  606,  32  App.  D.  C.  90. 

321.  An  exception  to  each  and  every  one 
of  the  instructions  is  too  general  to  be  avail- 
able on  appeal.  State  v.  Counort,  41 :  95, 
124  Pac.  910,  69  Wash.  361. 

322.  No  question  for  the  consideration  of 
the  appellate  court  is  raised  by  an  excep- 
tion: "To  the  giving  of  each  and  all  of  the 
said  instructions,  .  .  .  defendant,  by 
his  counsel,  then  and  there  excepted."  Fitz- 
simmons  v.  United  States,  13:  1095,  156  Fed. 
477,  84  C.  C.  A.  287. 

323.  An  objection  to  oral  instructions, 
that  the  "defendant  excepts  to  the  giving 
of  each  instruction,"  is  sufficient  to  preserve 
for  review  errors  therein.  Baumle  v.  Verde, 
41:  840,  124  Pac.   1083,  33  Okla.  243. 

324.  A  general  exception  to  a  charge  of 
the  court  containing  several  distinct  in- 
structions, some  of  which  are  unobjection- 
able, will  not  be  available  as  error.  Shelby 
V.  Shaner,  34:  621,  115  Pac.  785,  28  Okla. 
606. 

325.  An  exception  which  challenges  an  in- 
struction to  the  jury  that  combines  several 
different  propositions  of  law  is  of  no  avail 
unless  it  show  the  precise  ground  of  objec- 
tion, in  which  event  the  review  is  confined 
to  the  specific  ground  alleged.  Holt  v. 
United  Security  L.  Ins.  &  T.  Co.  (N.  J. 
Err.  &  App.)  21:691,  72  Atl.  301,  76  N. 
J.  L.  585. 

326.  An  exception  to  a  charge  to  a  jury 
which  does  not  direct  the  mind  of  the  trial 
judge  to  a  single  and  precise  point  in  which 
it  is  alleged  that  he  has  erred  in  law  fur- 
nishes no  ground  for  reversal  on  error.    Holt 

Digest   1-52  L,.R.A.(N.S.) 


V.  United  Security  L.  Ins.  &  T.  Co.  (N.  J. 
Err.  &  App.)  21:  691,  72  Atl.  301,  76  N.  J.  L. 
585. 

327.  A  general  exception  to  a  portion  of  a 
charge  which  contains  two  or  more  propo- 
sitions of  law  is  insufficient  if  any  one  of 
them  is  sound,  because  such  an  exception 
does  not  inform  the  trial  judge  which  prop- 
osition is  challenged,  and  give  him  an  oppor- 
tunity to  correct  it.  Armour  Packing  Co. 
V.  United  States,  14:  400,  153  Fed.  1,  82  C. 
C.  A.  135. 

328.  Where  only  a  portion  of  the  charge 
is  excepted  to  and  included  in  the  bill  of 
exceptions,  in  order  to  permit  a  review  by 
the  appellate  court,  the  bill  must  show 
that  it  includes  the  whole  charge  on  the 
subject-matter  covered  by  the  exception. 
Clute  V.  Clintonville  Mut.  F.  Ins.  Co.  32: 
240,  129  N.  W.  661,  144  Wis.  638. 

329.  An  exception  to  an  instruction  is 
siifficient  to  raise  the  question  of  its  cor- 
rectness, although  no  objection  is  made  to 
it.  Campbell  v.  Chillicothe,  39:  451,  144  S. 
W.  408,  239  Mo.  455. 

330.  An  objection  to  the  court's  referring 
the  jury  to  the  charge  given,  when  a  ques- 
tion is  propounded  by  them  after  retiring, 
will  not  raise  the  question  of  the  applica- 
bility of  the  instructions  to  the  question. 
Edwards  v.  State,  49:  563,  160  S.  W.  709, 
71  Tex.  Crim  Rep.  417.    . 

331.  Error  in  instructions  cannot  be  pre- 
served for  review  by  exceptions  to  denial  of 
a  new  trial  on  that  account,  where  a  consid- 
erable part  of  the  charge  is  set  out  in  the 
motion  embracing  several  separate  and  dis- 
tinct propositions,  some  of  which  are  correct 
statements  of  the  law.  Koch  v.  State,  3: 
1086,  106  N.  W.  531,  126  Wis.  470. 

332.  An  exception  to  a  paragraph  in  the 
charge  of  the  court,  declaring  that  evidence 
was  properly  admitted  for  certain  purposes, 
is  unavailing  in  the  absence  of  any  objection 
to  the  admission  of  the  evidence,  or  of  any 
request  to  exclude  any  evidence  or  limit  its 
efTect,  or  of  any  specification  of  the  partic- 
ular evidence  challenged,  since  the  record 
fails  to  show  error,  and  the  presumption 
that  the  action  of  the  court  below  was  right 
must  prevail.  Ware  v.  United  States,  12: 
1053,  154  Fed.  577,  84  C.  C.  A.  503. 

333.  An  exception  to  an  instruction  in  a 
prosecution  for  burglary,  that  "an  intent 
to  steal  may  be  inferred  from  the  larceny 
alone,"  as  improper  under  the  circum- 
stances of  the  case,  does  not  raise  the  ques- 
tion that  the  court  charged  that  the  only 
way  intent  could  be  determined  was  from 
the  surrounding  circumstances,  thus  exclud- 
ing the  testimony  of  accused.  State  v.  La- 
point,  47:  717,  88  Atl.  523,  87  Vt.  115. 
Refusal  er  failure  to  instruct. 

334.  An  exception  to  a  refusal  to  charge 
as  requested,  and  to  the  charge  given  as 
a  substitute,  is  too  general  to  be  of  avail. 
State  v.  Lapoint,  47:  717,  88  Atl.  523,  87 
Vt.  115. 

335.  Tlie  question  of  error  in  refusing  a 
special  instruction  cannot  be  raised  by  mere- 
ly stating  error  in  failing  to  give  it,  with- 
out anything  to  show  why  it  should  have 


6 


82 


APPEAL  AND  ERROR,  V.  b. 


been    given.      Spearman    v.    State,    44:  243, 
152  S.  W.  915,  —  Tex.  Crim.  Rep.  — . 

336.  A  single  exception  to  a  refusal  to 
give  a  number  of  requests  to  submit  to  the 
jury  several  propositions  of  law  and  of  fact 
is  futile,  if  any  of  those  propositions  is  er- 
roneous or  inapplicable.  Southern  P.  Co. 
v.  Hetzer,  1 :  288,  68  C.  C.  A.  26,  135  Fed. 
272. 

337.  A  special  exception  on  the  ground  of 
absence  of  evidence  to  support  a  rejected 
prayer  for  instructions  to  the  jury  is  not 
necessary  to  enable  the  appellate  court  to 
consider  the  fact  that  there  was  no  such 
evidence.  Mount  Vernon  Brewing  Co.  v. 
Teschner,  16:  758,  69  Atl.  702,  108  Md.  158. 

■ 'I- ;    ft.  Necessity  for  exceptions. 
:£,-.  .0 

(Bee  also   same  heading  in   Digest  L.R.A. 
*t       1-10.) 

See  also  supra,  202;  infra,  376,  1064. 

338.  The  allowance  of  an  amendment  of  a 
defective  exception  to  an  auditor's  report, 
after  the  time  when  sych  an  amendment 
could  properly  be  made,  is  in  effect  a  judg- 
ment of  the  court  that  the  exception  is 
amendable  at  that  time;  and  in  the  absence 
of  exceptions  thereto  such  judgment  can- 
not be  reviewed  on  appeal.  Moss  v.  Chap- 
pell,  11:  398,  54  S.  E.  968,  126  Ga.  196. 

339.  An  order  determining  the  provisions 
of  the  judgment  on  the  subject  of  costs  nec- 
essarily affects  the  judgment  within  the 
meaning  of  a  statute  requiring  such  orders 
to  be  included  in  the  judgment  roll,  and 
also  within  the  operation  of  a  statute  per- 
mitting intermediate  orders  to  be  reviewed, 
whether  excepted  to  or  not.  Jones  v.  Broad- 
way Roller  Rink  Co.  19:  907,  118  N.  W.  170. 
136  Wis.  595. 

340.  Refusal  to  allow  the  filing  of  an  ex- 
ception to  the  entry  of  judgment  non  ob- 
stante veredicto  twenty  days  after  such  en- 
try cannot  be  considered  on  appeal  in  the 
absence  of  exception  thereto.  Lewis  v.  Penn- 
sylvania R.  Co.  18:  279,  69  Atl.  821,  220  Pa. 
317. 

341.  A  memorandum  decision  by  the  trial 
court  before  which  a  case  is  tried  without 
a  jury  cannot  be  considered  as  findings  of 
fact  and  conclusions  of  law,  to  which  ex- 
ceptions must  be  filed.  Gould  v.  McCor- 
mick,  47:  765,  134  Pac.-676,  75  Wash.  61. 

342.  Where  an  error  is  apparent  on  the 
■Judgment  roll  or  record  of  the  trial  court, 

the  same  will  be  considered  on  review  here, 
although  no  exception  was  taken  thereto. 
Grissom  v.  Beidleman,  44:  411,  129  Pac. 
853,  35  Okla.  343. 

343.  A  judgment  cannot  be  reversed  be- 
cause of  improper  remarks  of  counsel  in  his 
argument  to  the  jury,  to  which  no  excep- 

•  tion   was  taken.     Mississippi  C.   R.   Co.   v. 
'Turnage,  24:253,  49  So.  840,  95  Miss.  854. 

344.  Statements  made  by  the  judge  during 
a  criminal  trial  cannot  be  considered  on 
appeal  if  no  exception  to  them  was  taken. 

•iState  V.  Dobbins,  42:  735,  132  N.  W.  805, 
152  Iowa,  632.  :    .-    j; 

Digest  1-52  L.R.A.(N.S.)  U 


345.  The  transfer  of  a  case  by  the  trial 
court  to  the  supreme  court,  after  entering 
an  order  for  judgment,  raises  no  question 
for  the  latter  court  in  the  absence  of  an  ex- 
ception to  the  order.  W.  P.  Chamberlain 
Co.  V.  Tuttle,  25:  604,  71  Atl.  865,  75  N.  H. 
171. 

To  evidence. 

346.  The  admission  of  evidence  to  which 
no  objection  is  made  is  not  error.  State  v. 
Downer,  43:  774,  123  Pac.  1073,  08  Wash. 
672. 

347.  Questions  regarding  the  admission 
and  rejection  of  evidence  cannot  be  con- 
sidered on  appeal  if  no  exceptions  were  filed 
in  the  trial  court  and  the  questions  were 
not  insisted  on  when  the  decree  was  ren- 
dered. Barber  v.  Bailey,  44:  98,  84  Atl. 
608,  85  Vt.  219. 

348.  Admission  of  hearsay  evidence,  with- 
out objection  and  exception,  affords  no 
ground  for  complaint  in  the  appellate 
court.  State  v.  Gibson,  28:  965,  68  S.  E. 
295,   67   W.   Va.   548. 

349.  That  no  objection  was  made  to  the 
admission  of  evidence  tending  to  establish 
a  cause  of  action  by  a  subagent  employed 
by  a  broker  to  assist  in  securing  a  pur- 
chaser of  real  estate,  against  the  property 
owner  for  compensation  for  his  services, 
does  not  prevent  the  court  from  determin- 
ing that  the  contract  sued  on  was  within 
the  statute  of  frauds,  and  incapable  of  rati- 
fication except  by  writing  executed  for  that 
purpose,  and  that  there  could  be  no  re- 
covery because  of  absence  of  ratification. 
Sorenson  v.  Smith,  51:612,  129  Pac.  757, 
131  Pac.  1022,  65  Or.  78. 

To  instructions. 

See  also  infra,  845,  847. 

350.  The  supreme  court  will  not  review 
errors  in  the  instructions  of  the  trial  court 
nor  in  remarks  made  by  the  county  attor- 
ney in  his  argument  to  the  jury  in  a  crimi- 
nal prosecution,  in  the  absence  of  proper 
objections  and  exceptions  thereto,  unless 
such  errors  are  fundamental.  Woody  v. 
State,  49:  479,  136  Pac.  430,  10  Okla.  Crim. 
Rep.  322. 

350a.  The  charge  of  a  trial  court  to  the 
jury  is  not  reviewable  in  a  Federal  appel- 
late court  where,  in  answer  to  an  inquiry 
of  the  court  at  the  close  of  the  charge,  the 
party  seeking  to  review  it  states  that  he 
has  no  exception  and  takes  none.  Thomp- 
kins  v.  Missouri,  K.  &  T.  R.  Co.  52:  791, 
211  Fed.  391,  128  C.  C.  A.  1. 

351.  An  assignment  of  error  predicated 
upon  the  refusal  of  the  trial  court  to  give  a 
certain  requested  instruction  cannot  be  con- 
sidered by  an  appellate  court,  in  the  absence 
of  any  showing  that  an  exception  was  taken 
to  the  ruling  complained  of.  Pittman  v. 
State,  8:  509,  41  So.  385,  51  Fla.  94. 

352.  Exception  during  the  trial  or  on  mo- 
tion for  a  new  trial  is  necessary  to  preserve 
error  in  the  instructions  to  the  jury  for  the 
consideration  of  the  appellate  court.  Potts 
V.  State,  7:  194,  97  S.  W.  477,  50  Tex.  Crim. 
Rep.  368. 

353.  A  reversal  may  be  had  to  prevent 
injustice  because  of  insufficient  instructions 


APPEAL  AND  ERROR,  V.  c,  d. 


83 


to  the  jury,  although  the  losing  party  did 
not  except  to  those  given,  or  request  others. 
Lepley  v.  Andersen,  33:  836,  125  N.  W.  433, 
142  Wis.  668. 

354.  Failure  to  add  qualifying  words  to  an 
instruction  involving  a  number  of  proposi- 
tions cannot  be  questioned  for  the  first  time 
on  appeal.  Thompson  v.  United  States,  47: 
206,  202  Fed.  401,  120  C.  C.  A.  575. 

355.  The  granting  of  a  prayer  for  instruc- 
tions is  not  error  because  there  is  no  evi- 
dence to  support  it,  if  exception  was  not 
made  to  it  on  that  ground.  Mount  Vernon 
Brewing  Co.  v.  Teschner,  16:  758,  69  Atl. 
702,  108  Md.  158. 

To  findings. 

See  also  supra,  341. 

356.  In  the  absence  of  an  exception  to  the 
findings  of  the  court  denying  a  motion  for 
a  new  trial,  the  errors  relied  upon  as  a 
ground  therefor  must  be  deemed  to  have 
been  waived.  Heikkala  v.  Isaacson,  50:  857, 
144  N.  W.  508,  178  Mich.  176. 

To  report  of  master,  referee,  etc. 

357.  Rulings  of  a  master  admitting  evi- 
dence alleged  to  be  incompetent  cannot  be 
reviewed  if  no  exception  was  taken  to  them. 
Burnham  v.  Dowd,  51:  778,  104  N.  E.  841, 
217   Mass.   351. 

358.  An  excessive  allowance  of  damages 
in  an  equity  case  cannot  be  corrected  on  ap- 
peal if  their  allowance  was  not  contested  be- 
fore the  register  nor  on  exceptions  to  his  re- 
port. Blackman  v.  Mauldin,  27:  670,  51  So. 
23,  164  Ala.  337. 

c.  Time  for  exceptions. 

(See   also   same  heading   in   Digest   L.R.A. 
1-10.) 

359.  Where  the  record  is  silent  as  to 
whether  or  not  the  defendant  has  been  ar- 
raigned, but  shows  that  the  defendant  ap- 
peared by  counsel  and  announced  ready  for 
trial,  participated  in  the  selection  of  the 
jury  and  the  examination  of  the  witnesses, 
and  further  shows  that  the  issues  in  the 
case  were  properly  made  up  and  submitted 
to  the  jury,  it  is  too  late,  after  conviction, 
for  the  defendant  to  object  upon  the  ground 
that  he  was  not  arraigned.  Wood  v.  State, 
45:  673,  112  Pac.  11,  4  Okla.  Grim.  "Rep.  436. 

360.  An  objection  that  one  convicted  of 
crime  was  prosecuted  under  the  wrong  name 
is  too  late  when  raised  for  the  first  time 
on  motion  for  new  trial.  State  v.  Hogg, 
ag:  830,  53  So.  225,  126  La.  1053. 

361.  An  objection  that  an  indictment 
which  is  signed  by  the  district  attorney, 
and  properly  identified  as  the  work  of  the 
grand  jury  by  the  indorsement,  "A  true 
bill,"  followed  by  the  official  signature  of 
the  foreman  of  the  grand  jury,  and  is 
shown  to  have  been  returned  into  court 
by  the  grand  jury,  was  not  read  "in  open 
court,  in  the  presence  of  the  jury,"  comes 
too  late,  when  raised  for  the  first  time  on 
a  motion  in  arrest  of  judgment.  State  v. 
Hogg,  29:  830,  53  So.  225,  126  La.  lt)53. 

362.  An  objection  to  the  participation,  on 
behalf  of  the  prosecution,  in  a  trial  for  hom- 
Digest  1-52  i:i.R.A.(N.S.) 


icide,  of  an  attorney  employed  by  private 
parties,  made  after  an  amendment  to  the 
information  and  resumption  of  the  trial,  is 
timely,  and  it  is  error  to  overrule  the  same. 
McKay  v.  State,  39:  714,  132  N.  W.  741,  135 
N.  W.  1024,  90  Neb.  63,  91  Neb.  281. 

363.  An  objection  that  the  attorney  in  the 
case  was  related  to  the  judge,  and  is  em- 
ployed under  a  contract  calling  for  a  con- 
tingent fee,  is  in  time  if  made  by  motion 
for  new  trial  before  final  judgment,  where 
the  facts  were  not  known  to  the  opposing 
attorney  until  after  the  close  of  the  trial. 
Yazoo  &  M.  V.  R.  Co.  v.  Kirk,  42:  1172,  58 
So.  710,  834,  101  Miss.  822. 

364.  The  court  will  exercise  discretion  as 
to  striking  appellant's  argument  in  a  crim- 
inal case,  for  failure  to  comply  with  the 
rules  as  to  preliminary  statements,  when 
the  question  is  not  raised  until  final  sub- 
mission. Iowa  City  v.  Classman,  40:  852, 
136  N.  W.  899,  155  Iowa,  671. 

d.  Raising  questions  hy  motion  or  other 
mode. 

(See  also   same   heading  in  Digest  L.R.A. 

1-10.) 

See  also  supra,  260. 

365.  Ruling  out  a  question  after  the  wit- 
ness has  answered  it  does  not,  without 
more,  eliminate  the  answer  from  evidence, 
the  proper  practice  being  to  move  to  strike 
out  the  answer,  unless  the  court,  in  sustain- 
ing the  objection,  also  directs  the  jury  not 
to  consider  the  reply  given.  Sorenson  v. 
Smith,  51:  612,  129  Pac.  757,  131  Pac.  1022, 
65  Or.  78. 

366.  Failure  to  move  to  strike  out  evi- 
dence admitted  over  objection  upon  prom- 
ise to  connect  it  with  the  case  will  not  pre- 
vent reliance  on  error  in  refusing  to  grant 
a  new  trial  because  of  its  admission.  Root 
V.  Kansas  City  S.  R.  Co.  6:  212,  92  S.  W. 
621,  195  Mo.  348. 

367.  To  preserve  for  review  the  question 
of  the  admissibility  at  a  trial  of  the  tes- 
timony of  a  witness  introduced  without  ob- 
jection at  a  prior  one,  it  is  not  necessary  to 
introduce  the  bill  of  exceptions  to  show 
such  fact,  if  counsel's  statement  that  the 
witness  so  testified  without  objection  wns 
accepted  as  correct  by  counsel  and  court. 
Elliott  V.  Kansas  City,  6:  1082,  96  S.  W. 
1023,  198  Mo.  593. 

368.  If  the  existence  of  an  unlawful  com- 
bination to  prevent  competition,  or  the  par- 
ticipation of  one  or  more  of  the  alleged 
parties  thereto,  is  not  shown  sufficiently, 
they  cannot  complain  of  evidence  which  was 
admissible  against  codefendants,  but  they 
should  request  the  court  to  instruct  that  the 
evidence  can  only  be  considered  against  those 
whose  acts  and  declarations  were  proved. 
Cleland  v.  Anderson,  5:  136,  92  N.  W,  306, 
96  N.  W.  212,  98  N.  W.  1075,  66  Neb.  252, 
105  N.  W.  1092,  75  Neb.  273. 

369.  Objections  to  a  pleading  for  duplic- 
ity can  be  raised  only  by  motions  to  strike 
out  or  to  compel  the  pleader  to  elect.    Gate- 


84 


APPEAL  AND  ERROR,  V.  d. 


Iv  V.  Taylor,  39:  472,  97  N.  E.  619.  211  Mass. 
GO. 

370.  The  court  will  not  interfere  with 
verdicts  against  a  master  and  in  favor  of 
an  employee  upon  whose  ncjgligence  tlie  lia- 
bility depends,  where  neither  party  asks  to 
set  aside  the  verdicts  for  mistrial,  but  each 
seeks  to  preserve  all  in  his  favor  and  reject 
the  rest.  Hewett  v.  Woman's  Hospital  Aid 
Asso.  7:  496,  64  Atl.  190,  73  N.  H.  556. 
Motion  foi*  new  trial. 

See  also  supra,  124-126,  363. 

371.  A  motion  for  new  trial  cannot  be 
employed  as  a  means  of  preparing  for  the 
appellate  court  matters  occurring  during 
the  trial,  to  which  objection  was  not  made 
at  the  time.  Whitcomb  v.  Mason,  4:  565, 
62  Atl.  749,  102  Md.  275. 

372.  Specifying  one  ground  for  granting  a 
motion  for  new  trial,  without  anything  to 
show  that  the  motion  was  denied  on  other 
grounds,  does  not  exclude  such  other  grounds 
from  the  consideration  of  the  appellate 
court.  Bresee  v.  Los  Angeles  Traction  Co. 
5:  1059,  85  Pac.  152,  149  Cal.  131. 

373.  Where  the  trial  court  has  had  an 
opportunity  to  rule  upon  an  error  claimed, 
it  may  be  reviewed  on  appeal  without  a 
formal  motion  for  new  trial.  Birch  v. 
Abercrombie,  50:  59,  133  Pac.  1020,  74 
Wash.  486. 

374.  The  filing  of  a  motion  for  a  new 
trial  in  the  nisi  prius  court  is  not  essential 
to  the  jurisdiction  of  the  appellate  court  to 
review  an  order  made  upon  the  hearing  of 
a  contested  question  of  fact  which  arose 
not  upon  the  pleadings,  but  upon  motion. 
Powell  V.  Nichols,  29:  886,  110  Pac.  762, 
26  Okla.   734. 

375.  Although  by  statute  a  new  trial  is 
necessary  to  preserve  matters  of  fact  for 
consideration  of  the  appellate  court,  errors 
of  law  occurring  at  the  trial  by  way  of  ad- 
mitting testimony  properly  objected  to,  or 
otherwise  with  exceptions  saved,  and  which 
are  brought  up  to  the  record  through  a 
statement  of  the  case,  will  be  considered  by 
the  court  without  a  motion  for  a  new  trial. 
Russell  V.  Olson,  37:  1217,  133  N.  W.  1030, 
22  N.  D.  410. 

376.  A  verdict  not  directed  can  be  set 
aside  on  motion  if  from  the  whole  record 
it  is  clearly  wrong,  and  it  is  not  necessary, 
in  order  to  get  the  case  before  the  review- 
ing court,  to  except  to  the  rulings  of  the 
trial  judge  rather  than  to  move  to  set 
aside  the  verdict.  Simonds  v.  Maine  Teleph. 
&  Teleg.  Co.  28:  942,  72  Atl.  175,  104  Me. 
440. 

377.  Failure  to  specify,  in  the  motion  for 
new  trial,  the  particular  error  complained 
of  in  the  admission  or  rejection  of  evidence, 
constitutes  a  waiver  thereof.  Miller  v. 
Nuckolls,  4:  149,  91  S.  W.  759,  77  Ark.  64. 

378.  The  right  to  have  the  evidence  re- 
viewed on  appeal  from  an  order  denying 
a  motion  for  new  trial  is  not  prejudiced  by 
failure  to  move  under  §§  663,  6631/2,  Code 
Digest  1-52  L.R.A.(N.S.) 


Civ.  Proc,  upon  the  ground  that  the  facts 
found  do  not  support  the  judgment.  J.  F. 
Parkinson  Co.  v.  Building  Trades  Council, 
21:  550,  98  Pac.  1027,  154  Cal.  581. 

379.  A  motion  to  discharge  the  jury  be- 
cause of  the  admission  of  iiicompt'tont  evi- 
dence is  equivalent  to  a  motion  for  new 
trial,  for  the  purpose  of  preserving  the  er- 
rors for  consideration  on  appeal.  Birch 
V.  Abercrombie,  50:  59,  133  Pac.  1020,  74 
Wash.  486. 

380.  Under  statutory  provisions  that  up- 
on motion  for  new  trial  for  exclusion  of 
evidence,  want  of  fair  opportunity  to  pro- 
duce evidence,  or  newly  discovered  evidence, 
such  evidence  shall  be  produced  at  the 
hearing  by  aflidavit,  deposition,  or  oral 
testimony,  the  appellate  court  is  relieved 
of  the  duty  to  examine  alleged  error  in  ex- 
clusion of  evidence,  when  such  ground  of 
the  motion  for  new  trial  is  not  supported 
by  the  production  of  the  evidence  excluded, 
as  required  by  the  statute.  Cooper  v. 
Greenleaf,  35:  1090,  114  Pac.  1086,  84  Kan. 
499. 

381.  Error  in  the  remarks  of  the  presiding 
judge  to  the  jury  is  waived  if  not  referred 
to  in  the  motion  for  new  trial.  Miller  v. 
Nuckolls,  4:  149,  91  S.  W.  759,  77  Ark.  64. 

382.  The  question  of  excessive  verdict  can- 
fiot  be  considered  on  appeal,  in  the  ab- 
sence of  a  motion  for  new  trial  on  that 
ground.  Dice  v.  Sherberneau,  16:  765,  116 
N.  W.  416,  152  Mich.  601. 

383.  Error  in  overruling  a  challenge  for 
cause  to  a  juror  or  on  account  of  the  re- 
marks of  counsel  for  the  defendant  in  error 
in  his  opening  statement  below  cannot  be 
considered  on  appeal,  where  the  record  does 
not  disclose  that  the  court's  attention  was 
called  to  the  alleged  irregularities  by  mo- 
tion for  a  new  trial.  Schwarzschild  &  S.  Co. 
V.  Weeks,  4:  515,  83  Pac.  406,  72  Kan.  190. 
Motion  as  to  judgment. 

384.  The  question  whether  or  not  the 
record  contains  evidence  tending  to  support 
the  cause  of  action  is  preserved  for  review 
in  the  appellate  court  by  tendering  a  per- 
emptory instruction  at  the  close  of  the  evi- 
dence to  return  a  verdict  in  defendant's 
favor.  McCormick  Harvesting  Mach.  Co.  v. 
Zakzewski,  4:  848,  77  N.  E.  147,  220  111.  522. 

385.  A  decree  enjoining  the  continuation 
of  a  nuisance  cannot  be  questioned  on  ap- 
peal, notwithstanding  a  finding  that  the 
operations  causing  it  would  not  be  resumed, 
if  no  motion  to  modify  it  was  made  in  the 
lower  court.  Niagara  Oil  Co.  v.  Ogle,  42: 
714,  98  N.  E.  60,  177  Ind.  292. 

386.  Where  a  trial  court  improperly  re- 
fuses to  direct  a  verdict  for  the  defendant, 
the  supreme  court  has  the  power  to  do  do 
on  an  appeal  from  a  judgment  for  the  plain- 
tiff, even  though  no  motion  was  made  in 
the  lower  court  lor  judg.nent  notwithstand- 
ing the  verdict,  or  for  a  new  trial,  under 
§  7044,  J^.  D.  Rev.  Code  1905.  Houston  v. 
Minneapolis  St.  P.  &  S.  Ste.  M.  R.  Co.  46: 
589,  141  N.  W.  994,  25  N.  D.  469. 

■  ■e,:A)j. 


APPEAL  AND  ERROR,  VI.  a,  b. 


85 


FJ.  Preliminary     motions;     dismissal; 
abatement;    abandonment. 

a.  In   general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of  death  on  parties  to  appeal,  see 
supra,    112. 

Effect  of  death  on  judgment  rendered  with- 
out knowledge  thereof,  see  Judgment, 
•       97. 

See  also  infra,  555. 

387.  The  filing  of  a  motion  for  extension 
of  time  for  perfecting  an  appeal,  with  the 
clerk  in  vacation,  is  sufficient  to  maintain 
the  status  quo  until  the  court  shall  have  an 
opportunity  to  pass  upon  the  motion.  Ben- 
nett V.  Com.  43:  419,  150  S.  W.  806,  150 
Ky.  604. 

388.  Parties  to  an  appeal  may  stipulate 
for  its  dismissal  without  the  aid  or  inter- 
vention of  their  counsel.  Humptulips  Driv- 
ing Co.  V.  Burrows,  37:  226,  118  Pac.  827, 
€6  Wash.  636. 

389.  Where  a  full  examination  of  the 
merits  of  an  appeal  shows  that  cross  appel- 
lants are  entitled  to  no  relief  except  that 
already  granted  by  the  trial  court,  a  mo- 
tion by  appellants  to  dismiss  the  cross  ap- 
peal may  be  disregarded.  Hamilton  v.  Al- 
len, 28:  723,  125  N.  W.  610,  86  Neb.  401. 

6.  Grounds  for  dism^issal. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Dismissal  of  appeal  as  punishment  for  con- 
tempt, see  CoNTEMiT,  105. 

390.  Upon  the  filing  of  what,  in  legal  ef- 
fect, is  the  satisfaction  of  a  judgment,  the 
appellate  court  has  jurisdiction  to  declare 
the  satisfaction  and  dismiss  the  writ  of  er- 
ror. Ducey  v.  Patterson,  9:  1066,  86  Pac. 
109,  37  Colo.  216. 

391.  Affidavits  filed  in  the  supreme  court 
by  the  attorney  for  the  appellant  in  a 
cause  there  pending,  for  the  specific  pur- 
pose of  having  the  cause  remanded  to  the 
trial  court  so  that  a  motion  for  a  new 
trial  could  there  be  made  on  the  ground  of 
newly  discovered  evidence,  which  relief  was 
denied  by  the  supreme  court,  do  not  con- 
stitute judicial  admission  on  a  hearing  on 
the  merits  of  the  appeal,  so  that  the  ap- 
peal must  necessarily  be  dismissed  because 
of  inconsistencies  between  the  case  of  the 
appellant  and  the  facts  as  stated  in  one 
such  affidavit  of  a  third  person.  McCarty 
V.  Kepreta,  48:  65,  139  N.  W.  992,  24  N.  D. 
395. 

I<ack  of  controversy;  change  in  cir- 
cumstances pending  appeal. 

392.  A  writ  of  error  taken  in  mandamus 
proceedings  to  compel  the  issuance  of  a 
license  to  sell  liquors,  wines,  and  beers 
will  be  dismissed  when  the  time  during 
Digest  1-52  L.».A.(N.S.) 


which  the  license  is  operative  has  expired 
before  the  cause  on  writ  of  error  is  reached 
for  final  disposition.  Yent  v.  State  ex  rel. 
Richardson,  49:  1204,  63  So.  452,  66  Fla.  336. 

393.  If  the  term  of  imprisonment  expires 
pending  an  appeal  by  the  jailer  from  a  de- 
cision in  a  habeas  corpus  proceeding  releas- 
ing a  prisoner  from  custody,  the  appeal  will 
be  dismissed.  Harris  v.  Lang,  7:  124,  27 
App.  D.  C.  84. 

394.  A  writ  of  error  to  review  a  decree 
ejecting  a  tenant  holding  over  under  an  al- 
leged implied  renewal  of  the  original  lease, 
will  not  be  dismissed  after  the  tenant  has 
vacated  as  involving  only  a  moot  case,  even 
though  the  action  involved  only  the  right 
to  possession,  as  the  legality  of  the  judg' 
ment  for  possession  is  still  vital,  since,  if 
it  is  not  overthrown,  the  tenant  would  be 
precluded  by  it  in  an  action  to  recover  for 
the  use  and  occupancy,  from  showing  that 
he  was  rightfully  in  possession  under  the 
renewal,  in  which  case  he  might  be  required 
to  pay  more  than  the  stipulated  rental. 
Kaufman  v.  Mast  in,  25:855,  66  S.  E.  92, 
66  W.  Va.  99. 

Irregularities    in    papers    or    proceed- 
ings. 
See  also  supra,  364. 

395.  It  is  not  in  itself  a  sufficient  ground 
for  the  dismissal  of  an  appeal  that  an  ap- 
pellant has  failed  to  include  in  his  abstract 
all  of  the  evidence  and  exhibits  necessary 
to  a  proper  consideration  of  the  case.  W. 
T.  Rawleigh  Medical  Co.  t.  Laursen,  48:  198, 
141  N.  W.  64,  25  N.  D.  63. 

396.  The  court  will  exercise  discretion  as 
to  striking  the  abstract  for  a  failure  to  com- 
ply with  the  rules  as  to  numbering  the 
lines,  where  the  case  is  before  it  for  final 
determination  and  the  entire  abstract  is 
so  short  that  no  inconvenience  could  have 
been  caused  by  the  omission.  Iowa  City  v. 
Classman,  40:  852,  136  N.  W.  899,  155  Iowa, 
67L 

397.  Where  a  case  made  is  lost,  and  the 
substitute  is  duly  settled  and  signed  by 
the  trial  judge,  who  finds  and  certifies  that 
the  same  is  a  true,  correct,  ^nd  complete 
copy  of  the  original,  and  this  finding  is 
not  rebutted,  a  motion  to  dismiss  on  the 
ground  of  lack  of  proof  of  authenticity 
will  be  denied.  Cloe  v.  Rogers,  38:  366,  121 
Pac.  201,  31  Okla.  255. 

398.  An  appeal  will  not  be  dismissed  for 
imperfection  in  the  stenographer's  report 
of  the  testimony,  where  it  does  not  appear 
that  appellant  was  more  to  blame  for  it 
than  appellee.  Vicksburg,  S.  &  P.  R.  Co. 
V.  Webster  Sand,  G.  &  Constr,  Co.  47:  11 55, 
62  So.  140,  132  La.  1051. 

399.  That  an  appeal  bond  contains  lan- 
guage tending  to  make  it,  in  addition,  a 
supersedeas  bond,  for  which  purpose  it  is 
inadequate,  does  not  require  the  dismissal 
of  the  appeal  when  the  bond  was  not  in- 
tended to  operate  as  a  supersedeas,  there 
being  nothing  in  the  judgment  to  supersede. 
State  ex  rel.  Grass  v.  White,  2:  563,  82  Pac. 
907,  40  Wa3h.  560. 


86 


APPEAL  AND  EROR,  VII.  a. 


Delay. 

400.  An  appeal  which  has  been  filed  a 
sufficient  time  prior  to  a  term  of  the  su- 
preme court  to  be  heard  at  such  term,  as 
required  by  North  Dakota  Revised  Code  1905, 
§  7231,  will  not  be  dismissed  at  the  suc- 
ceeding term  of  such  court  for  failure  of 
the  appellant  to  serve  and  file  his  abstract 
in  time  for  a  hearing  at  the  first  term, 
where  no  motion  to  dismiss  the  appeal 
on  that  ground  is  made  at  the  first  term, 
and  the  delay  is  shown  to  be  excusable. 
VV.  T,  Rawleigh  Medical  Co.  v.  Laursen, 
48:  198,  141  N.  W.  64,  25  N.  D.  63. 

401.  Mere  delay  in  settling  a  statement 
of  the  case  or  in  taking  an  appeal,  where 
8<ich  appeal  was  taken  within  the  statutory 
period  allowed  therefor,  constitutes  no 
ground  for  a  dismissal  of  the  appeal.  Wil- 
son V.  Kryger,  51:  760,  143  N.  W.  764,  26 
N.  D.  77. 

Escape  of  appellant. 

402.  An  appeal  from  a  judgment  of  con- 
viction of  crime  will,  on  motion,  be  dis- 
missed, where  the  defendant  has  escaped 
from  the  custody  of  the  law,  and  is  at  large 
as  a  fugitive  from  justice.  Tyler  v.  State, 
26:  921,  104  Pac.  919,  3  Okla.  Crim.  Rep. 
179. 


VII.  Hearing  and  determination. 

a.  In   general;   rules   of   decision. 

(See  also  same  heading  i/n  Digest  L.R.A. 
1-10.) 

Review  of  order  of  public  service  commis- 
sion, see  Public  Sekvice  Commission, 
19. 

403.  In  an  appeal  from  a  judgment  quiet- 
ing title  to  lands,  where  there  was  sufficient 
evidence  to  sustain  a  judgment  in  favor  of 
the  plaintiff,  finding  that  when  the  action 
was  brought  he  was  in  the  peaceable,  quiet 
possession  of  the  real  estate,  claiming  title, 
the  first  inquiry  must  necessarily  be  as  to 
what  title  thfe  defendant  has;  for,  if  he 
have  no  title,  he  cannot  question  that  of  the 
plaintiff.  Cramer  v.  McCann,  37:  108,  112 
Pac.  832,  83  Kan.  719. 

404.  Payment  on  account,  made  after  the 
entry  of  a  decree  establishing  a  mechanics' 
lien,  cannot  be  considered  by  the  appellate 
court  in  determining  the  correctness  of  the 
decree.  R.  Haas  Electric  &  Mfg-  Co.  v. 
Springfield  Amusement  Park  Co.  23:  620,  86 
N.  E.  248,  236  111.  452. 

405.  The  reviewing  court  cannot,  in  con- 
aidering  the  correctness  of  a  prayer  which 
does  not  refer  to  the  pleadings,  and  is  not 
affected  by  any  other  prayer  which  refers  to 
them,  consider  them,  but  must  determine  its 
correctness  with  reference  to  the  evidence. 
Richardson  v.  Anderson,  25:  393,  72  Atl.  485, 
109  Md.   641. 

406.  Neither  the  petition  for  mandamus 
nor  the  original  writ  can  be  considered  on 
appeal  where  the  case  was  tried  on  an 
amended  alternative  writ.  Crawford  v. 
Dieeat  1-52  Ii.R.A.(N.S.) 


District   School   Bd.   50:  147,    137   Pac.   217, 
68  Or.  388. 

407.  A  memorandum  of  the  trial  court, 
attached  to,  but  not  made  a  part  of,  an  or- 
der granting  a  new  trial  which  does  not 
specify  whether  the  motion  is  granted  upon 
the  ground  that  the  verdict  is  not  supported 
by  the  evidence,  or  for  errors  of  law  occur- 
ring at  the  trial,  may  be  referred  to  an  ap- 
peal to  determine  upon  what  ground  the  or- 
der was  made,  notwithstanding  the  omis- 
sion, on  the  revision  of  the  laws,  of  the  word 
"memorandum"  from  a  statute  which  ex- 
pressly permitted  such  memorandum  to  be 
considered,  so  that  in  its  revised  form  it 
permits  a  new  trial  where  the  verdict  is  not 
supported  by  the  evidence  or  is  contrary  to 
law,  but  provides  that,  unless  so  expressly 
stated  in  the  order  granting  a  new  trial,  it 
shall  not  be  presumed  on  appeal  to  have 
been  made  on  the  ground  that  the  verdict 
was  not  justified  by  the  evidence,  where  the 
courts,  prior  to  the  revision,  had  habitually 
considered  the  memorandum,  within  certain 
limits,  to  be  a  part  of  the  order,  since  in 
such  case  it  will  be  presumed  that  the  codi- 
fiers  and  the  legislature  considered  the  word 
no  longer  necessary.  Gay  v.  Uren,  26:  742, 
123  N.  W.  295,  109  Minn.  101. 

408.  Where  evidence  is  admitted  without 
objection  to  support  a  ground  of  negligence 
not  charged  in  the  complaint  in  an  action 
to  recover  for  wrongful  death,  and  the 
cause  is  tried  on  that  issue,  the  court  on 
appeal  will  treat  the  pleadings  as  amended 
to  conform  to  the  proof.  Pulaski  Gas  Light 
Co.  v.  McClintock,  32:  825,  134  S.  W.  1189, 
97  Ark.  576. 

409.  The  portion  of  a  complaint  in  an 
action  for  slander,  which  plaintiflf  fails  to 
amend  upon  being  ordered  to  do  so  because 
of  vagueness  of  allegation,  will  be  consid- 
ered as  abandoned.  Hyatt  v.  Lindner, 
48:  256,   63   So.   241,   133   La.   614. 

410.  In  reviewing  a  conviction  f6r  con- 
tempt, the  question  of  guilt  will  be  deter- 
mined from  the  evidence  at  the  trial,  re- 
f^^.-rdless  of  what  was  charged  in  the  in- 
formation. Poindexter  v.  State,  .6:517, 
159   S.   W.   197,   109   Ark.   179. 

Rnles  of  decision. 
See  also  infra,  910. 

411.  In  appeals  in  equity  cases,  the  su- 
preme court  will  examine  the  evidence  and 
arrive  at  an  opinion  of  the  facts  estab- 
lished, uninfiuenced  by  the  conclusion  ar- 
rived at  by  the  trial  court,  except  in  so  far 
as  a  presumption  in  support  of  such  conclu- 
sion is  derived  from  the  opportunity  which 
the  trial  judge  has  of  seeing  and  hearing 
the  witnesses,  and  of  judging  their  candor, 
their  knowledge  of  the  facts,  their  intelli- 
gence, and  bias  or  partiality,  if  any  is  ex- 
hibited. Roe  v.  Howard  County,  5:  831, 
106  N.  W.  587,  75  Neb.  448. 

412.  Where  there  is  conflicting  testimony 
in  the  appellate  court  as  to  whether  or  not 
a  case-made  was  served  before  the  expira- 
tion of  the  time  allowed,  the  certificate  of 
the  trial  judge  that  the  service  was  made 
in  due  time  will  control,  Girard  Trust  Co. 
V.  Owen,  33:  262,  112  Pac.  619,  83  Kan.  692, 


APPEAL  AND  ERROR,  VII.  b,  c. 


87 


413.  In  passing  upon  the  refusal  of  the 
trial  court  to  direct  a  verdict,  the  reviewing 
court  can  only  determine  whether  there  is 
any  evidence  which,  together  with  the  in- 
ferences which  might  legitimately  be  drawn 
from  it,  fairly  tends  to  support  the  opposite 
theory.  Wilkinson  v.  ^tna  L.  Ins.  Go.  25: 
1256,  88  N.  E.  550,  240  111.  205. 

414.  An  entire  instruction  must  be  con- 
sidered in  ascertaining  the  meaning  of  any 
portion  of  it.  State  v.  White,  14:  556,  92 
Pac.  829,  76  Kan.  654. 

415.  In  a  criminal  appeal  the  record  of 
the  proceedings  in  the  trial  court  will  not 
be  interpreted  to  show  error,  if  it  be  sus- 
ceptible cf  a  reasonable  interpretation  to 
the  contrary.  State  v.  Durein,  15:  908,  78 
Pac.   152,   70  Kan.   1. 

b.  Who  may  complain. 

(See   also   same   heading    in  Digest   L.R.A. 
1-10.) 

Objections   as  to  which   party   is  estopped, 

see   infra,   VII.   g. 
See   also   infra,   VII.   f. 

416.  A  judgment  cannot  be  reversed  at 
the  instance  of  the  party  prevailing,  if  he 
does  not  perfect  an  appeal  from  the  ruling. 
Smith  V.  Diamond  Ice  &  Storage  Co.  38: 
994,  118  Pac,  646,  65  Wash.  576. 

417.  Parties  failing  to  appeal  from  an  or- 
der withdrawing  from  the  jury  the  issues 
presented  by  certain  counts  of  the  complaint 
cannot,  in  case  of  a  disagreement  as  to 
the  other  counts,  which  necessitates  a  new 
trial,  question  on  appeal  from  the  second 
judgment  a  ruling  that  such  counts  have 
been  eliminated  from  the  case,  if  no  sepa- 
rate appeal  was  taken  therefrom.  Frohardt 
Bros.  V.  Duff,  40:  242,  135  N.  W.  609,  156 
Iowa,  44. 

418.  One  of  several  property  owners  in 
whose  name  property  is  placed  by  his  co- 
owners  for  sale,  who  is  sought  to  be  held 
liable  to  his  co-owners  for  the  broker's  com- 
mission, because  the  contract  between  the 
parties  was  illegal,  has  a  right  to  be  heard 
on  appeal  from  a  decree  in  his  favor,  al- 
though a  trustee  in  bankruptcy  was  ap- 
pointed for  him  before  the  decree  was  en- 
tered, where  he  is  made  a  party  to  the  ap- 
peal, and  his  trustee  did  not  become  a 
party  to  the  proceedings  or  seek  a  hearing. 
Heckscher  v.  Blanton,  37:  923,  69  S.  E. 
1045,  111  Va.  648. 

419.  An  accused  cannot  secure  an  affirm- 
ance of  a  ruling  dismissing  the  indictment 
because  of  insufficiency  upon  appeal  by  the 
state,  which  attempts  to  support  the  con- 
stitutionality of  the  statute  upon  which 
it  was  founded,  since  he  will  not  be  directly 
affected  by  rulings  upon  the  particular  ques- 
tions presented  by  the  state.  State  v.  Fair- 
mont Creamery  Co.  42:  821,  133  N.  W.  895, 
153  Iowa,  702. 

420.  An  order  punishing  a  stranger  for 
contempt  in  violating  an  injunctive  order 
cannot  be  reviewed  upon  appeal  by  the 
Digest  1-52  Ii.R.A.(N.S.) 


parties  to  the  case.  Eastern  Outfitting  Co. 
V.  Manheim,  35:  251,  110  Pac.  23,  59  Wash. 
428. 

421.  Whether  or  not  a  convict  was  given 
too  light  a  sentence  cannot  be  reviewed  on 
his  appeal,  at  the  instance  of  the  state. 
State  V.  McDowell,  32:  414,  112  Pac.  521, 
61   Wash.   398. 

422.  An  erroneous  instruction  directing  a 
verdict  in  favor  of  certain  defendants,  par- 
ticipants in  a  joint  wrong,  affords  no  ground 
of  complaint  to  codefendants  jointly  and 
severally  liable  with  them.  Cleland  v,  An- 
derson, 5:  136,  92  N,  W.  306,  96  N.  W,  212, 
98  N,  W.  1075,  66  Neb.  252,  105  N.  W.  1092, 
75  Neb.  273. 

423.  A  respondent  is  not  entitled  to  the 
benefits  of  exceptions  taken  in  the  court  be- 
low to  secure  a  new  trial  as  matter  of  right 
in  case  of  reversal,  nor  to  have  motions 
made,  but  not  passed  upon,  at  the  trial, 
considered'^on  appeal.  Fleming  v.  Northern 
Tissue  Paper  Mill,  15:  701,  114  N.  W.  841, 
135  Wis.  157. 

c.  Evidence;     amendments;     trial     de 
novo. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Review  of  order  of  public  service  commis- 
sion, see  Public  Service  Commission, 
19. 

Evidence. 

As  part  of  record  on  appeal,  see  supra,  IV. 

f. 
As   to   judicial   notice   by   appellate   court, 

see   Evidence,   I. 
See  also  supra,  209.  ^    -ii     .v 

424.  Inadmissible  evidence  which  is  ad- 
mitted without  objection  cannot  be  dis- 
regarded on  appeal,  Frye  v,  St,  Louis,  I. 
M.  &  S,  R.  Co,  8:  1069,  98  S,  W,  566,  200 
Mo.   377. 

425.  Upon  appeal  from  a  judgment  for 
plaintiff  in  an  action  to  recover  for  personal 
injuries,  where  the  only  errors  assigned  are 
the  refusal  to  direct  a  verdict  or  to  grant  a 
judgment  for  defendant^  the  evidence  will 
be  examined  only  for  the  purpose  of  ascer- 
taining if  there  is  any  credible  evidence 
which,  taken  in  its  most  favorable  aspect 
to  the  plaintiff,  might  directly  or  by  proper 
inference  sustain  the  judgment  in  his  favor; 
countervailing  evidence  on  the  part  of  the 
defendant  cannot  be  considered.  Karr  v, 
Milwaukee  Heat,  Light,  &  Traction  Co,  13: 
283\  113  N.  W,  62,  132  Wis.  662, 

426.  Evidence  admitted  for  a  particular 
purpose  only  cannot  properly  be  considered 
on  appeal  for  any  other  purpose,  either  in 
support  of  the  judgment  or  as  a  ground  for 
reversal.  Corbett  v.  Physicians'  Casualty 
Asso.  16:  177,  115  N.  W.  365,  135  Wis.  505. 

427.  The  appellate  court,  in  reviewing  a 
refusal  to  direct  a  verdict  for  defendant  in 
an  action  to  recover  damages  for  personal 
injuries,  cannot  disregard  evidence  merely 
because   it   is   improbable.      O'Callaghan   v. 


APPEAL  AND  ERROR,  VII.  d. 


Dellwood  Park  Co.  26:  1054,  89  N.  E.  1005, 
242   111.  336. 

428.  On  a  motion  for  a  new  trial,  based 
upon  the  minutes  of  the  court,  alleged  er- 
rors not  properly  specified  in  the  notice  of 
intention  to  move  for  a  new  trial  cannot  be 
considered  on  appeal.  State  use  of  Hart- 
Parr  Co.  V.  Robb-Lawrence  Co.  16:  227,  115 
N.  VV.  846,  17  N.  D,  257. 

429.  In  mandamus  proceedings  to  compel 
the  directors  of  a. medical  college  to  issue 
a  diploma,  the  supreme  court  will  not  allow 
the  respondent  corporation  to  open  up  the 
case  to  appoint  a  referee  and  take  addi- 
tional evidence  in  support  of  the  defense 
interposed  in  the  court  below,  since  to  al- 
low new  issues  to  be  framed  and  additional 
evidence  introduced  in  cases  brought  up  for 
review  would  destroy  the  strictly  appellate 
character  of  the  supreme  court.  State  ex 
rel.  Nelson  v.  Lincoln  Medical  College,  17: 
930,  116  N.  W.  294,  118  N.  W.  122,  81  Neb. 
533. 

Amendmeiits. 

430.  Amendments  in  matters  of  form  that 
do  not  affect  the  fair  trial  and  determina- 
tion of  the  real  question  in  controversy  may 
be  allowed  in  the  court  of  review,  under 
N.  J.  P.  L.  1903,  p.  572,  §  126.  Holt  v. 
United  Security  L.  Ins.  &  T.  Co.  (N.  J. 
Err.  &  App.)  21:691,  72  Atl.  301,  76  N. 
J.  L.  585. 

Trial  de  novo. 

In   eminent  domain   proceedings,    see   Emi- 
nent  Domain,   175,   176. 
See  also  infra,   961,   1513,   1573. 

431.  Upon  an  appeal  to  the  district  court 
from  a  judgment  of  a  justice  court  rendered 
upon  the  refusal  of  the  defendant  to  plead 
further  after  his  plea  to  the  jurisdiction 
of  the  justice  was  overruled,  appellee  is  not 
entitled  to  the  judgment  of  the  district 
court  affirming  the  judgment  of  the  justice, 
upon  appellant  conceding  the  jurisdiction 
of  the  justice,  where  under  the  statute  the 
case  is  triable  in  the  district  court  de  novo 
upon  the  merits.  Rogers  v.  Kemp  Lumber 
Co.  51:594,  -137  Pac,  686,  18  N.  M.  300. 

d.  Presumptions. 

(See  also  same   heading   in  Digest  L.R.A. 
1-70.) 

See  also  infra,  964. 

432.  The  legal  presumption,  in  the  ab- 
sence of  a  showing  in  the  record  that  the 
trial  court  committed  an  error  of  law,  is 
that  the  rulings  of  such  court  were  right, 
and  the  burden  is  on  him  who  asserts  tftat 
one  of  them  was  erroneous  to  make  that 
fact  appear  by  the  record  he  presents  to 
the  appellate  court.  Thompkins  v.  Mis- 
souri, K.  &  T.  R.  Co.  52:  791,  211  Fed. 
391,  128  C.  C.  A.  1. 

433.  Upon  appeal  on  the  judgment  roll 
from  a  judgment  supported  by  the  findings 
made,  in  the  absence  of  a  showing  to  the 
contrary  on  the  record,  it  must  be  presumed 
that  there  was  no  evidence  which  would 
have  sustained  a  finding  in  favor  of  an  is- 
Digest  1-52  I^R.A.(N.S.) 


sue  set  up  in  the  pleadings      Coats  v.  Coats, 
36:  844,   118  Pac.  441,  160  Cal.  671. 

434.  The  appellate  court  will  entertain  no 
presumption  that  the  trial  court,  upon  the 
hearing  on  a  bill  of  review,  looked  to  the 
evidence  for  facts  which  the  pleadings  dis- 
closed, and  on  such  presumption  reverse  the 
decree.  Peters  v.  Case,  13:  408,  57  S.  E. 
733,  62  W.  Va.  33. 

435.  In  the  absence  of  a  finding  upon  the 
point  or  an  issue  framed  to  invoke  such 
finding,  an  appellate  court  will  presume  in 
favor  of  a  judgment  denying  priority  to 
matured  stock  in  an  insolvent  building  and 
loan  association,  notice  of  withdrawal  of 
which  had  been  given,  that  the  notice  was 
not  given  until  after  the  insolvency  had 
occurred.  Pacific  Coast  Sav.  Soc.  v.  Stur- 
devant,  49:  1142,  l33  Pac.  485,  165  Cal. 
687. 

436.  Where  a  judgment  has  been  entered 
by  default,  and  a  timely  application  is 
made  to  set  aside  the  default  and  permit 
an  answer  to  the  merits  to  be  filed,  and  such 
answer  discloses  upon  its  face  a  good  and 
meritorious  defense,  as  a  general  rule,  if 
there  be  any  reasonable  doubt  on  the  mat- 
ter, it  wil  be  resolved  in  favor  of  granting 
the  application  and  allowing  a  trial  upon 
the  merits  of  the  case;  and  on  an  appeal 
from  an  order  granting  such  an  application 
every  reasonable  presumption  will  be  in- 
dulged in  support  of  the  order  opening  de- 
fault and  allowing  a  trial  on  the  merits  of 
the  case.  Humphreys  v.  Idaho  Gold  Mines 
Development  Co.  40:  817,  120  Pac.  823,  21 
Idaho,  126. 

437.  In  the  absence  of  anything  in  the 
record  to  the  contrary,  an  appellate  court 
will  presume  that  a  pardon  introduced  to 
qualify  a  person  as  a  witness  who  had  been 
convicted  of  offenses  in  the  couH  in  which 
he  was  to  testify,  which  contained  the  date 
of  conviction  and  named  the  court,  was 
shown  to  relate  to  the  particular  offenses 
for  which  he  was  convicted,  or  that  the 
court  took  judicial  notice  of  that  fact. 
Thompson  v.  United  States,  47:  206,  202 
Fed.  401,  120  C.  C.  A.  575. 

438.  The  appellate  court  will,  when  tho 
record  recites  that  the  parties  came  and 
submitted  the  cause  to  the  court  for  trial, 
without  the  intervention  of  a  jury,  pre- 
sume that  a  jury  trial  was  expressly 
waived.  Indianapolis  Northern  Traction 
Co.  v.  Brennan,  30:  85,  87  N.  E.  215,  90  N. 
E.  65,  174  Ind.  1. 

439.  No  presumption  that  a  woman  will 
perform  her  invalid  contract  to  give  her 
attorney  a  share  of  the  allowance  secured 
in  a  divorce  proceeding  as  alimony  will  pre- 
vent the  appellate  court  from  affirming  a 
special  allowance  for  counsel  fees  made  by 
the  trial  court.  McConnell  v.  McConnell, 
33:  1074,  136  S.  W.  931,  98  Ark.  193. 

440.  In  the  absence  of  evidence  to  the  con- 
trary, it  will  be  presumed  on  appeal  that 
a  peddler  of  small  wares  charged  with  vio- 
lating a  municipal  ordinance  by  remaining 
in  one  place  while  not  actually  engaged  in 
making  sale  of  an  article  attempted  to  stand 
longer  in  such  place  than  the  terms  of  the 


APPEAL  AND  ERROR,  VII.  d. 


89 


ordinance  permitted.     Shreveport  v.  Dantes, 
8:  304,  42  So.  716,  118  La.  113. 

441.  It  will  be  presumed  that  the  infor- 
mation acquired  by  a  juror  who,  without 
knowledge  of  the  parties  or  the  court,  vis- 
ited the  switch  where  an  engine  was  de- 
railed resulting  in  the  injuries  complained 
of,  was  prejudicial.  Floody  v.  Great  North- 
ern R.  Co.  13:  1196,  112  N.  W.  875,  102 
Minn.  81. 

442.  The  appellate  court  cannot  presume 
that  the  trial  court  inferred  bodily  harm 
from  the  facts  found  by  it  in  a  divorce  case, 
where  it  states  that  it  decided  the  case  on 
the  facts  found,  which  do  not  include  a 
finding  of  bodily  harm.  Mathewson  v. 
Mathewson,  18:  300,  69  Atl.  646,  81  Vt.  173. 

443.  A  granted  motion  to  set  down  for 
hearing  on  petition  and  answer  a  petition  to 
quash  a  proceeding  to  compel  specific  per- 
formance of  a  contract  to  sell  real  estate 
will  be  assumed,  on  appeal,  to  have  been 
filed  by  petitioner,  in  the  absence  of  any- 
thing in  the  record  to  the  contrary,  so  that 
the  truth  of  the  answer  denying  the  resi- 
dence of  defendant,  which  wctiild  invalidate 
the  service  of  process,  must  be  taken  as  ad- 
mitted and  the  service  upheld.  Hollander 
v.  Central  Metal  &  S.  Co.  23:  1135,  71  Atl. 
442,  109  Md.  131. 

444.  In  the  absence  of  a  request  for  rul- 
ing, and  exception,  the  court  cannot  assume 
that  the  master  made  a  certain  ruling  from 
language  which  contains  an  intimation  that 
he  made  it,  if  other  language  indicates  that 
he  may  not  have  intended  to  do  so.  Long  v. 
Athol,  17:  96,  82  N.  E.  665,  196  Mass.  497. 
As  to  pleadings. 

445.  In  an  action  on  an  insurance  policy, 
a  petition  alleging  specific  acts  as  a  waiv- 
er of  proof  of  loss,  in  proof  of  which  un- 
contradicted evidence  was  introduced  with- 
out objection,  sufficient  to  show  a  waiver 
thereof  upon  other  grounds,  will  be  con- 
sidered as  amended  so  as  to  conform  to  the 
facts  proved,  and  a  waiver '  so  proved  is 
fairly  in  issue.  St.  Paul  F.  &  M.  Ins.  Co. 
V.  Mittendorf,  28:  651,  104  Pac.  354,  24 
Okla.  651. 

446.  Since  a  general  demurrer  to  a  bill  in 
equity  challenges  its  sufficiency  in  all  re- 
spects, a  decree  sustaining  such  a  demurrer 
is  presumed  on  appeal  to  rest  upon  any 
sufficient  ground  disclosed  by  the  bill,  even 
though  it  was  not  assigned  in  writing  as  a 
ground  of  demurrer,  while  others,  not  well 
taken,  were.  Depue  v.  Miller,  23:  775,  64 
S.  E.  740,  65  W.  Va.  120. 

447.  It  will  be  presumed  that  the  chan- 
cellor, in  sustaining  a  demurrer  to  a  bill 
filed  to  set  aside  a  deed,  the  sole  considera- 
tion of  which  was  the  promise  of  the 
grantee  not  to  prosecute  the  husband  of  the 
grantor  for  the  crime  of  embezzlement,  did 
so  on  the  ground  that  the  parties  to  the 
deed  were  in  pari  delicto,  and  that  neither 
was  in  a  position  to  obtain  relief  either 
against  or  under  the  deed,  where  the  order 
does  not  state  upon  what  ground  the  de- 
murrer was  sustained.  Burton  v.  McMillan, 
11:  159,  42  So.  879,  52  Fla.  228. 

Digest   1-52  L.R.A.(N.S.) 


As  to  evidence  admitted. 

See  also  supra,  332. 

448.  No  error  will  be  presumed  in  the  ad- 
mission of  evidence  not  contained  in  the 
bill  of  exceptions.  Thompson  v.  United 
States,  47:  206,  202  Fed.  401,  120  C.  C.  A. 
575. 

As  to  evidence  excluded. 

449.  The  appellate  court  will  not,  to  save 
error  in  refusing  to  admit  opinion  evidence, 
assume  facts  which  would  go  merely  to  its 
weight,  and  might  have  been  developed  on 
cross-examination.  Adler  v.  Pruitt,  32: 
889,  53  So.  315,  169  Ala.  213. 

As  to  sufficiency  of  evidence. 

450.  Absence  of  a  certificate  that  the 
printed  case  contains  all  the  evidence  in  an 
attempt  to  review  exceptions  taken  at  the 
trial  does  not  entitle  the  appellate  court  to 
assume  that  there  was  evidence  at  the  trial 
sufficient  to  sustain  the  verdict,  when  the 
record  does  not  disclose  it,  since  such  cer- 
tificate is  not  necessary  to  raise  such  ques- 
tion. Dupont  V.  Port  Chester,  39:  1167,  97 
N.  E.  735,  204  N.  Y.  351. 

As  to  findings  or  verdict. 
Review  of,  see  infra,  VII.  1. 
See  also  supra,  411 ;    infra,   1014. 

451.  The  common  evidentiary  presump- 
tion in  favor  of  judicially  found  facts  does 
not  exist  where  such  findings  are  the  result 
of  misconception  of  law.  Boardman  v.  Lor- 
entzcn,  52:  476,  145  N.  W.  750,  155  Wis. 
.566. 

452.  A  statutory  provision  that  facts 
necessary  to  support  a  judgment  founded  on 
a  special  verdict  shall  be  deemed  to  have 
been  determined  in  conformity  with  the 
judgment,  although  omitted  from  the  ver- 
dict, does  not  apply  where  there  was  a  spe- 
cial request  to  submit  the  question  to  the 
jury.  Habhegger  v.  King,  39:  881,  135  N. 
W.  166,  149  Wis.  1. 

453.  The  court  of  appeals  will  not  pre- 
sume that  any  fact  was  found  not  embraced 
within  the  scope  of  the  pleadings,  the  find- 
ings, as  they  appear  in  the  recoi'd,  and  the 
proofs  upon  Avhich  the  decision  was  made, 
for  the  purpose  of  upholding  a  judgment, 
although  it  was  a  short  decision,  unani- 
mously affirmed.  Falk  v.  American  West 
Indies  Trading  Co.  i:  704,  73  N.  E.  239,  180 
N.  Y.  445. 

454.  When  the  finding  of  the  trial  court 
upon  a  question  of  fact  is  challenged  upon 
appeal,  all  reasonable  presumptions  are  to 
be  indulged  in,  in  favor  thereof;  and  it  cannot 
be  disturbed  unless,  in  the  light  of  such  rule, 
it  is  so  clearly  contrary  to  the  preponder- 
ance of  the  evidence  as  to  produce  convic- 
tion in  the  minds  of  the  reviewers,  to  a  rea- 
sonable certainty,  that  it  is  wrong.  Chase 
v.  Hinkley,  2:  738,  105  N.  W.  230,-  126  Wis. 
75. 

455.  No  fact  not  specified  found  can  be 
added  by  the  court  to  a  special  verdict,  nor 
can  its  existence  be  presumed.  State  v. 
Colonial  Club,  31:387,  69  S.  E.  771,  154 
N.  C.   177. 

456.  In  a  case  tried  by  the  court,  where 
the  court  submits  questions  of  fact  to  the 


90 


APPEAL  AND  ERROR,  VII.  d. 


jury  in  an  advisory  capacity,  and  adopts 
their  findings,  it  will  be  assumed  that  the 
court  gave  proper  weight  to  all  the  compe- 
tent evidence.  People's  Gas  Co.  v.  Fletcher, 
41:  1161,  105  Pac.  34,  81  Kan.  76. 

457.  A  verdict  cannot  be  disturbed  by 
a  reviewing  court  on  the  theory  that  the 
jury  must  have  been  impressed  with  the 
truth  of  the  opinions  of  a  witness  upon 
which  hypothetical  questions  to  experts 
were  founded,  by  the  reiteration  of  such 
questions  containing  assumptions  founded 
upon  such  opinions.  Kearner  v.  Charles 
S.  Tanner  Co.  29:  537,  76  Atl.  833,  31  R.  I. 
203, 

458.  An  appellate  court  will,  when  neces- 
sary to  support  a  decree  enjoining  an  at- 
teinpted  use  of  a  right  of  way  claimed  as 
an  easement  because  of  sixty  years'  use, 
assume  that  the  trial  court  inferred  from 
the  facts  found  that  the  use  had  been  per- 
missive, and  not  hostile.  Barber  v.  Bailey, 
44:  98,  84  Atl.  608,  85  Vt.  219. 

459.  Whatever  facts  are  not  included  in 
the  findings  of  fact  by  the  trial  court  must 
be  presumed  to  have  been  found  against  the 
party  having  the  burden  of  proof.  Mc- 
Adams  v.  Bailey,  13:  1003,  82  N.  E.  1057, 
169  Ind.   518. 

460.  Where  the  trial  court  has  not  found 
enough  of  the  ultimate  facts  to  make  out 
the  case  of  fraud  alleged  by  appellant  the 
appellate  court  will  assume  that  they  were 
not  proved,  and  that  appellees  were  suc- 
cessful in  rebutting  all  adverse  inferences 
which  might  have  been  drawn  as  matters  of 
fact  from  that  which  is  contained  in  the 
special  findings.  McAdams  v.  Bailey,  13: 
1003,  82  N.  E.  1057,  169  Ind.  518. 

461.  A  finding  that  a  housj  on  homestead 
property  was,  because  of  its  age  and  con- 
dition, not  a  fit  dwelling  for  the  claimant 
of  the  homestead  and  his  family,  will  not 
support  an  inference  that  a  new  house 
erected  on  an  adjoining  lot  comprised  in 
the  homestead  was  built  with  the  intention 
of  using  it  as  a  home,  in  the  absence  of  a 
finding  that  the  claimant  thought  the  old 
house  unfit,  and  in  the  face  of  findings  that 
the  claimant  was  engaged  in  the  business  of 
building  houses  for  sale,  and  tried  to  sell 
the  new  house  while  under  construction, 
and  that  his  family  continued  to  live  in  the 
old  house  until  they  moved  into  the  new 
house  and  rented  the  old  house  for  others 
to  live  in.  Jensen  v.  GrifSn,  50:  1128,  144 
N.  W.  119,  32  S.  D.  613. 

462.  A  finding  by  a  single  justice  that  the 
law  of  a  foreign  state  is  the  same  as  the 
local  law,  which  is  founded  entirely  upon 
decisions  of  the  courts  of  such  state,  creates 
no  presumption  in  its  favor  when  it  is 
renewed  by  the  law  court.  Old  Dominion 
Copper  Min.  &  Smelting  Co.  v.  Bigelow, 
40:  314,  89  N.  E.  193,  203  Mass.  159. 

463.  Findings  of  fact  by  the  corporation 
commission,  based  iipon  any  competent  evi- 
dence supporting  same,  are  presumed  prima 
facie  to  be  correct;  but  when  any  finding 
is  not  supported  by  any  evidence,  and  there 
is  strong  evidence  to  the  contrary,  this 
presumption  does  not  prevail.  Pioneer 
Digest  1-52  i:..R.A.(N.S.) 


Teleph.   &  Teleg.   Co.   v.   Westenhaver,   38: 
1209,   118  Pac.  354,  29  Okla.  429. 

464.  The  facts  as  found  by  the  state  cor- 
poration commission  are  presumed  to  be 
correct  until  overcome  or  rebutted  by  the 
facts  in  the  record,  as  weighed  and  found 
by  the  supreme  court  on  review  thereof. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  State,  24:  393, 
103  Pac.  617,  24  Okla.  317. 

465.  The  finding  by  a  corporation  commis- 
sion that  the  installation  and  maintenance 
of  a  telephone  in  a  certain  railroad  station 
is  a  necessary  facility  and  convenience  with- 
in the  purview  of  the  constitutional  provi- 
sion that  such  commission  shall  require  pub- 
lic-service corporations  to  establish  and 
maintain  all  such  public-service  facilities  and 
conveniences  as  may  be  reasonable  and  just, 
raises  a  presumption,  which  can  be  overcome 
on  appeal  only  by  manifest  error  appearing 
in  the  record,  that  the  order  based  thereon 
is  prima  facie  just,  reasonable,  and  correct. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  State,  21:  908, 
100  Pac.  11,  23  Okla.  310. 

As  to  instructions. 

466.  Where'the  evidence  is  in  conflict  and 
the  record  shows  that  the  trial  court  in- 
structed the  jury,  but  omits  entirely  to  in- 
clude such  instructions,  it  will  be  presumed 
on  appeal  that  such  instructions  were  cor- 
rect, and  properly  presented  the  law  and 
the  issues  to  the  jury.  Galehouse  v.  Min- 
neapolis, St.  P.  &  S.  Ste.  M.  R.  Co.  47:  965, 
135  N.  W.  189,  22  N.  D.  615. 

467.  A  judgment  will  not  be  reversed  be- 
cause the  record  states  merely  that  the 
court  gave  the  "general  charge"  without 
setting  out  the  language  used,  on  the  theory 
that  possibly  the  court  may  have  charged 
upon  the  effect  of  the  testimony,  or  have 
failed  to  follow  the  language  of  the  request, 
contrary  to  the  provisions  of  the  statute. 
Parker  v.  Wilson,  43:  87,  60  So.  150,  179 
Ala.  361, 

468.  That  accused  was  found  guilty  of 
involuntary  manslaughter  does  not  show 
that  ah  instruction  was  harmless  which  per- 
mitted a  conviction  on  an  indictment  for 
striking,  wounding,  and  throwing  the  vic- 
tim into  a  well,  although  the  evidence  shows 
the  frightening  of  him  into  insanity  so 
that  he  jumped  into  the  well.  Gipe  v. 
State,  i:  419,  75  N.  E.  881,  165  Ind.  433. 
As  to  regularity  of  proceedings  belotv. 
In  criminal  case,  see  infra,  473,  474. 
Presumption  as  to  time  when  order  to  set 

aside  decree  was  made,  see  Judgment, 
362. 

469.  The  appellate  court  will  not,  in  the 
absence  of  a  finding  to  that  effect,  assume 
that  a  visit  by  the  trial  judge  to  the  scene 
of  the  controversy  was  without  the  consent 
of  counsel.  Bitello  v.  Lipson,  16:  193,  69 
Atl.  21,  80  Conn.  497. 

470.  Where  a  record  is  silent  upon  the 
question  of  a  referee  having  taken  an  oath 
as  required  by  law,  the  presumption  will 
be  indulged  that  such  oath  was  taken;  and, 
even  though  omitted  it  will  be  held  ar  ir- 
regularity only,  and  waived  by  a  party  who 
proceeds  to  trial  without  objection  on  this 


APPEAL  AND  ERHOE,  Vll.  e. 


91 


point.    Logan   v.    Brown,   20:  298,    95    Pac. 
441,  20  Okla.  334. 

471.  On  appeal  in  a  civil  action,  where 
the  record  shows  that  the  jury  were  sworn, 
it  will  be  presumed  that  they  were  fairly 
sworn,  if  the  form  of  oath  administered  does 
not  appear.  First  Nat.  Bank  v.  Lowther- 
Kaufman  Oil  &  C.  Co.  28:  511,  66  S.  E.  713, 
66  W.  Va.  505. 

472.  The  bill  of  exceptions  should  not  be 
stricken  on  appeal,  on  the  ground  that  the 
prevailing  party  did  not  have  the  statutory 
period  allowed,  after  notice  that  a  bill  of 
exceptions  had  been  filed,  in  which  to  file 
his  objections  and  amendments  thereto, 
where  it  does  not  appear  that  such  right 
was  not  waived,  as  the  presumption  is  that 
notice  was  given  and  that  opportunity  to 
inspect  and  object  was  had,  although  the 
record  is  silent  as  to  that  fact.  Kroll  v. 
Close,  28:  571,  92  N.  E.  29,  82  Ohio  St.  190. 
In  crimixial  cases. 

473.  Where  the  record  is  silent  as  to 
whether  the  defendant  had  been  arraigned, 
but  affirmatively  shows  that  the  defendant 
was  accorded  all  the  rights  and  privileges 
which  the  statute  secures  him  by  arraign- 
ment, the  appellate  court  will  presume  that 
the  defendant  was  either  arraigned  or  that 
he  waived  arraignment.  Wood  v.  State, 
45:  673,  112  Pac.  11,  4  Okla.  Crim.  Rep.  436. 

474.  Where  the  record  is  silent  as  to  the 
presence  of  the  defendant  upon  one  day 
of  his  trial,  but  shows  affirmatively  tliat 
he  was  present  and  announced  ready  for 
trial  when  the  trial  began,  and  also  that 
he  was  present  when  the  verdict  of  the 
jury  was  returned,  the  entire  record  may 
be  considered,  and  may  be  sufficient  to 
justify  the  presumption  that  the  defendant 
was  present  on  the  day  on  which  the  record 
was  silent  as  to  his  presence.  Wood  v. 
State,  45:  673,  112  Pac.  11,  4  Okla.  Crim. 
Rep.  436. 

475.  Objection  that  the  record  does  not 
show  that  the  prisoner  was  in  court  when 
the  verdict  was  rendered  cannot  be  raised 
on  appeal,  where  there  is  no  evidence  that 
he  was  not  in  court  at  such  time,  and  the 
record  affirmatively  sho\^'s  his  presence  in 
court  when  the  jury  was  impaneled  and 
after  the  verdict  was  rendered,  since  from 
such  facts  a  presumption  of  his  presence 
during  the  intervening  period  arises.  State 
V.  Gibson,  28:  965,  68  S.  E.  295,  67  W.  Va. 
648. 

476.  It  Avill  not  be  presumed  upon  an  ap- 
peal from  a  conviction  of  a  criminal  charge 
that  the  trial  judge,  the  county  attorney, 
and  the  jury  entered  into  a  conspiracy  un- 
lawfully to  deprive  the  accused  of  his  liber- 
ty, or  that  either  of  them  has  not  faith- 
fully performed  his  respective  duties,  but, 
on  the  contrary,  every  presumption  will  be 
indulged  in  favor  of  the  rulings  of  the  trial 
court,  the  regularity  of  the  proceedings,  and 
the  correctness  of  the  verdict  of  the  jury. 
Edwards  v.  State,  44:  701,  131  Pac.  956,  9 
Okla.   Crim.   Rep.   306. 

477.  Where  a  record  is  silent  upon  the 
subject  of  the  argument  of  counsel  upon 
the  trial  of  one  accused  of  homicide,  the 
Digest  1-52  L.R.A.(N.S.) 


presumption  of  law,  in  the  appellate  court, 
is  either  that  argument  was  waived  or 
that  it  was  omitted  from  the  record  through 
the  carelessness  of  the  clerk.  Henry  v. 
State,  52:  113,  136  Pac.  982,  10  Okla.  Crim. 
Rep.   369. 

478.  A  mere  statement  in  a  motion  for 
ne#  trial  of  a  prosecution  for  forgery,  that 
there  was  a  variance  between  the  instru- 
ment set  out  in  the  indictment  and  that 
produced  at  the  trial,  is  not  sufficient  to 
warrant  a  presumption  by  the  appellate 
court  that  such  variance  existed,  if  there 
is  nothing  in  the  evidence  or  findings  to 
show  that  it  did  exist.  Forcy  v.  State, 
32:  327,  131  S.  W.  585,  60  Tex.  Crim.  Rep. 
206. 

479.  The  presumption  of  innocence  no 
longer  prevails  upon  appeal  from  a  convic- 
tion in  a  criminal  prosecution,  but  the  coun- 
ter presumption  prevails  that  the  accused 
is  guilty.  Edwards  v.  State,  44:  701,  131 
Pac.  956,  9  Okla.  Crim.  Rep.  306. 

e.  WJiat  revieivahle  generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Condition  of  record  as  affecting  review- 
ability, see  supra,  IV. 

Scope  of  review  on  writ  of  error  from  Fed- 
eral supreme  court  to  state  court,  see 
supra,  61-63. 

See  also  supra,  125,  204,  260,  423, 

480.  Errors  assigned  in  the  brief,  but  not 
argued,  will  be  deemed  abandoned.  Kelly 
V.  Pierce,  12:  180,  112  N.  W.  995,  16  N.  D. 
234. 

481.  Objections  against  the  transcript,  not 
stated  in  appellee's  brief,  but  urged  for 
the  first  time  on  the  argument  before  the 
appellate  court,  will  not  be  considered.  Bal- 
timore &  0.  S.  W.  R.  Co.  V.  Evans,  14:  368, 
82  N.  E.  773,  169  Ind.  410. 

482.  The  mere  presence  in  a  case  of  a 
constitutional  question  does  not  confer 
jurisdiction  of  the  whole  case  upon  the  ap- 
pellate court  charged  with  the  determi- 
nation of  such  questions.  Richey  v.  Cleve- 
land, C.  C.  &  St.  L.  R.  Co.  47:  121,  96  N. 
E.  694,  176  Ind.  542. 

483.  A  constitutional  question  is  waived 
by  appealing  to  the  appellate  court  rather 
than  to  the  supreme  court.  R.  Haas  Elec- 
tric &  Mfg.  Co.  V.  Springfield  Amusement 
Park  Co.  23:  620,  86  N.  E.  248,  236  111.  452. 

484.  The  supreme  court  of  Georgia  will 
not  examine  the  record  to  determine  whether 
the  decision  of  a  constitutional  question  is 
necessary  to  the  proper  determination  of  the 
case,  in  an  action  in  which  the  court  of  ap- 
peals has  certified  a  constitutional  question 
to  the  supreme  court  for  decision,  and  de- 
clared that  a  decision  of  such  question  is 
necessary,  since  that  is  a  matter  to  be  de- 
cided by  the  court  of  appeals,  and  its  judg- 
ment on  any  matter  within  its  jurisdiction! 
is  not  reviewable  by  the  supreme  court.' 
Harvey  v.  Thompson,  9:  765,  57  S.  E.  104j 
128  Ga.  147. 


:a2 


APPEAL  AND  ERROR,  VII.  e. 


485.  The  actual  offer  of  evidence  upon  an 
issue  is  not  necessary  to  preserve  a  ques- 
tion for  the  appellate  court  if  the  trial 
court  rules  that  no  proof  upon  that  issue 
will  be  received,  to  which  an  exception  is 
reserved.  Palmer  v.  La  Rault,  21:354,  99 
Pac.  1036,  51  Wash.  664. 

486.  The  question  whether  a  judgment 
which  followed  a  verdict  in  favor  of  the 
plaintiff  in  an  action  in  which  but  one  de- 
fendant was  served  with  process,  and  who 
alone  appeared  and  defended  the  suit, 
should  have  been  entered  against  this  de- 
fendant by  name,  cannot  be  considered  on 
appeal,  since  a  complaint  that  the  judg- 
ment is  erroneous  or  def.ctive  is  the  proper 
subject-matter  of  direct  exception,  and  is 
no  ground  for  a  new  trial.  Thomas  v. 
Clarkson,  6:  658,  54  S.  E.  77,  125  Ga.  72. 

487.  In  order  to  determine  the  prejudicial 
effect  of  errors  properly  assigned,  the  whole 
record  may  be  examined;  and  if,  in  the  light 
thereof,  the  findings  appear  indefinite  and 
uncertain  on  a  vital  issue,  the  judgment 
should  not  be  allowed  to  stand.  First  Nat. 
Bank  v.  C.  E.  Stevens  Land  Co.  43:  1040, 
137  N.  W.  1101,  119  Minn.  209. 

488.  Where  the  question  presented  goes 
only  to  the  jurisdiction  of  the  trial  court  to 
enter  the  judgment  sought  to  be  vacated 
imder  a  special  appearance,  the  appellate 
court  will  consider  only  the  jurisdictional 
question  raised,  and,  on  determining  that 
the  trial  court  had  jurisdiction  to  enter  the 
judgment,  the  decision  of  the  trial  court  re- 
fusing to  vacate  the  same  is  affirmed.  Gold- 
stein v.  Peter  Fox  Sons  Co.  40:  566,  135  N. 
W.  180,  22  N.  D.  636. 

489.  Upon  a  petition  in  error  to  reverse 
a  judgment  by  default,  such  defects  in  the 
petition  as  could  have  been  taken  advantage 
of  under  general  demurrer  may  be  brought 
under  review;  and,  if  the  allegation  of  the 
petition  is  insufficient  to  sustain  the  judg- 
ment, the  same  will  be  reversed.  Grissom  v. 
Beidleman,  44:  411,  129  Pac.  853,  35  Okla. 
343. 

490.  Upon  refusal  of  a  request  to  direct  a 
verdict,  if  the  grounds  for  the  request  are 
not  pointed  out,  the  defeated  party  may 
raise  in  the  appellate  court  any  question  of 
law  actually  involved  in  the  request  and  re- 
fusal, even  though  it  was  not  thought  of  at 
the  trial.  Parrot  v.  Mexican  C.  R.  Co. 
34:  261,  93  N.  E.  590,  207  Mass.  184. 

491.  That  a  prisoner  was  not  brought  to 
trial  within  two  terms  after  his  arrest  can- 
not be  considered  on  appeal  from  a  convic- 
tion, where  the  question  is,  under  the  stat- 
ute, to  be  raised  by  a  habeas  corpus  pro- 
ceeding. Com.  v.  Fisher,  26:  loog,  75  Atl. 
204,  226  Pa.  189. 

492.  That  portion  of  a  decree  in  a  di- 
vorce proceeding  which  is  not  appealed 
from  cannot  be  reviewed  on  appeal.  Ton- 
cray  v.  Toncray,  34:  1106,  131  S.  W.  977, 
123  Tenn.   476. 

493.  Appealing  from  a  conviction  for  con- 
tempt in  violating  an  injunction,  instead  of 
seeking  a  review  by  writ  of  certiorari  or  ha- 
beas corpus,  will  not  operate  to  enlarge  the 

•  field  of  inquiry  of  the  appellate  court.     En- 
Digest  1-52  KR.A.(N.S.) 


terprise    Foundry    Co.    v.    Iron     Moulders' 
Union,  13:  598,  112  N.  W.  685,  140  Mich.  31. 

494.  Although  the  statute  requires  a  pro- 
ceeding for  review  by  the  supreme  court  to 
be  called  an  appeal,  yet  an  appeal  in  a 
habeas  corpus  proceeding  has  only  the  effect 
of  a  certiorari,  and  the  review  is  confined 
to  a  determination  of  the  regularity  of  the 
proceedings  of  the  nisi  prius  court.  Com. 
ex  rel.  Flower  v.  Superintendent  of  Prison, 
21:  939,  69  Atl.  916,  220  Pa.  401. 

495.  A  motion  to  quash  the  writ  in 
habeas  corpus  amounts  to  a  demurrer,  and, 
if  denied  and  excepted  to,  any  error  in  the 
ruling  may  be  urged  on  appeal,  although 
issues  were  joined  and  trial  had,  provided 
the  proceeding  is  one  which  is  appealable. 
Bleakley  v.  Barclav,  10:  230,  89  Pac.  906, 
75  Kan.  462. 

496.  Upon  a  petition  to  revise  an  order  in 
bankruptcy  under  the  act  of  1898,  the  court 
may  search  the  opinion  filed  by  the  district 
court,  not  to  eke  out  insufficient  findings 
of  fact,  but  for  the  purpose  of  ascertaining 
the  issues  which  that  court  considered.  Re 
Cole,  23:  255,  163  Fed.  180,  90  C.  C.  A.  50. 

497.  When  an  appeal  is  taken  from  an 
order  which  grants  a  new  trial  on  a  single 
ground  that  may  be  insufficient,  the  appel- 
late court  is  not  limited  to  a  review  of  the 
ruling  as  to  that  ground,  but  will  consider 
any  and  all  questions  presented  by  the  rec- 
ord which  it  deems  necessary  for  the  proper 
decision  of  the  case.  Smart  v.  Kansas  City, 
14:  565,  105  S.  W.  709,  208  Mo.  162. 

498.  Failure  to  waive  a  jury  trial  by 
written  stipulation  will  not  prevent  a  re- 
view on  writ  of  error  of  the  decision  of  the 
court  as  a  whole  upon  an  agreed  state- 
ment of  facts  if  there  was  no  question  of 
fact  to  be  decided.  Talcott  v.  Friend, 
43:  649,  179  Fed.  676,  103  C.  C.  A.  80. 

499.  Where,  in  an  action  involving  no 
constitutional  question,  for  the  recovery 
of  money  only,  in  an  amount  too  small  to 
confer  appellate  jurisdiction  upon  a  court 
of  last  resort  in  the  absence  of  a  con- 
stitutional question,  judgment  was  ren- 
dered by  default  against  a  defendant  while 
he  was  detained  jn  custody,  and  a  motion 
to  open  the  judgment  and  vacate  the  same 
for  lack  of  jurisdiction  to  render  it  was 
overruled,  the  assignment  of  error  upon 
the  ground  that  he  was  denied  due  process- 
of  law  does  not  confer  jurisdiction  upon 
the  court  of  last  resort  to  hear  and  de- 
termine any  but  the  constitutional  ques- 
tion raised.  Griggs  v.  Hanson,  52:  1161^ 
121  Pac.  1094,  86^Kan.  632. 

Errors   of  law. 

500.  Failure  of  a  jury  to  accept  the  theory 
of  one  of  the  parties  as  to  the  cause  of  an 
accident,  to  recover  for  injuries  from  which 
the  action  is  brought,  is  not  error  of  law. 
Hennessey  v.  Taylor,  3:  345,  76  N.  E.  224, 
189  Mass.  583. 

501.  Upon  a  request  to  direct  a  verdict 
for  defendant  on  the  ground  that  it  is  not 
the  proper  party  to  the  suit,  a  question  of 
law  arises,  which  may  be  reviewed  by  the 
appellate  court  if  the  ruling  is  not  supported 


APPEAL  AND  ERROR,  VII.  f. 


93 


by  the  evidence.    Chicago,  B.  &  Q.  R.  Co.  v. 
Webor,  4:  272,  76  N.  E.  489,  219  111.  .372. 

502.  The  allowance  or  denial  of  a  motion 
for  a  new  trial,  filed  after  a  general  verdict 
in  a  lower  court,  is  largely  a  matter  of  ju- 
dicial discretion  as  to  the  finding  of  facts 
and  the  weight  of  evidence  involved  in  the 
verdict,  but  alleged  errors  of  law  occurring 
upon  the  trial  are  not  matters  of  discretion, 
and  are  fully  subject  to  review  upon  appeal. 
Manker  v.  Tough,  19:  675,  98  Pac.  792,  79 
Kan.  46. 

503.  A  contention  that  the  conclusions  of 
law  embraced  in  the  findings  are  erroneous 
is  not  available  upon  appeal  from  an  order 
denying  a  new  trial.  Mentone  Irrigation 
Co.  V.  Redlands  Electric  Light  &  P.  Co.  22: 
382,   100  Pac.   1082,   155   Cal.  323. 

504.  Upon  a  petition  to  review  an  order  of 
the  bankruptcy  court  committing  a  bank- 
rupt for  failure  to  comply  with  an  order  to 
its  authority  under  the  act  of  1898,  the 
court  may  revise  any  question  of  law  as  to 
which  it  may  justly  infer  the  district  court 
reached  a  conclusion,  whether  formally  ex- 
pressed or  not,  and  whether  or  not  formally 
presented.  Re  Cole,  23:  255,  163  Fed.  180, 
90  C.  C.  A.  50. 

Pleadings. 

See  also  supra,  163. 

505.  The  striking  out  of  frivolous  and 
sham  pleas  is  not  subject  to  review  on  ap- 
peal unless  provision  therefor  is  made  by 
statute.  Blessing  v.  McLinden  (N.  J.  Err. 
&  App.)  35:  312,  79  Atl.  347,  81  N.  J.  L.  379. 

506.  That  a  judgment  is  not  supported 
by  the  complaint  or  findings  may  be  re- 
viewed upon  appeal  from  the  judgment. 
Van  Buskirk  v.  Kuhns,  44:  710,  129  Pac. 
687,    164   Cal.   472. 

507.  An  order  denying  a  motion  to  amend 
the  petition,  not  made  until  after  judgment, 
is  not  reviewable  upon  appeal  from  the 
judgment.  State  ex  rel.  Dresser  v.  Board 
of  School  Dist.  No.  1,  16:  730,  116  N.  W. 
232,  135  Wis.  619. 

508.  The  appellate  court  will  not  pass 
upon  the  merits  of  a  plea  of  fraud,  which 
was  ofi"ered  by  way  of  amendment  after  the 
striking  of  a  general  allegation  of  fraud  be- 
cause not  sufficiently  specific,  which  was 
wrongfully  stricken,  as  res  judicata,  as  the 
ruling  striking  the  amendment  wag  not  upon 
the  merits.  Dolvin  v.  American  Harrow  Co. 
28:  785,  54  S.  E.  706,  125  Ga.  699. 

509.  A  writ  of  error  awarded  a  defend- 
ant in  a  case  in  which  recovery  is  sought 
upon  two  counts,  ih  which  the  demurrer  of 
the  defendant  is  sustained  as  to  the  second 
count,  does  not  bring  up  the  action  of  the 
trial  court  in  sustaining  the  demurrer  to 
such  count,  and  the  supreme  court  cannot 
look  to  such  count  to  support  the  verdict 
and  judgment  for  the  plaintiff  on  the  first. 
Jenkins  v.  Chesapeake  &  O.  R.  Co.  49:  1166, 
57  S.  E.  48,  61  W.  Va.  597. 
Evidence. 

510.  Alleged  errors  in  the  exclusion  of 
evidence  cannot  be  considered  when  it  does 
not  appear  what  it  was  expected  to  prove  by 
answers  to  the  questions  propounded.  Smith 
Digest  1-52  L.R.A.(N.S.) 


V.   White,  14:  530,  60  S.  E.  404,  63  W.  Va. 
472. 

511.  The  appellate  court  will  not,  under 
a  statute  requiring  it  to  weigh  the  evidence 
in  equity  cases,  do  so  where  the  tdrtiimony 
is  oral,  and  there  is  a  substantiaT'conflict 
in  it.  Indianapolis  Northern  Traction  Co. 
V.  Brennan,  30:  85,  87  N.  E.  215,  90  N.  E. 
65,  174  Ind.  1. 

512.  A  reviewing  court  will  not  examine 
and  analyze  the  testimony  in  a  case,  to  de- 
termine whether  or  not  hypothetical  ques- 
tions to  an  expert  witness  were  based  on 
opinions  of  other  witnesses,  but  to  make 
such  question  objectionable  in  form  because 
of  that  fact  it  must  be  determinable  upon 
the  mere  inspection  of  the  question.  Kear- 
ner  v.  Charles  S.  Tanner  Co.  29:  537,  76 
Atl.  833,  31  R.  I.  203. 

513.  Defendant's  testimony,  as  well  as 
that  of  plaintiff,  is  subject  to  the  considera- 
tion of  the  reviewing  court  upon  an  assign- 
ment of  error  in  failing  to  grant  a  nonsuit, 
if  defendant  does  not  stand  upon  his  mo- 
tion, but  enters  upon  his  defense.  Dignam 
V.  ShafT,  22:  996,  98  Pac.  1113,  51  Wash.  412. 

514.  In  considering  a  demurrer  to  the 
evidence,  a  trial  court  may  disregard  in- 
competent testimony  admitted  over  proper 
objections,  and,  on  appeal  from  a  ruling 
sustaining  a  demurrer  to  the  evidence,  in- 
competent evidence  admitted  over  objection 
will  not  be  considered  for  the  purpose  of 
reversing  such  ruling.  Nance  v.  Oklahoma 
F.  Ins.  Co.  38:  426,  120  Pac.  948,  31  Okla. 
208. 

515.  The  evidence  in  the  record  on  a  writ 
of  error  bringing  up  for  review  a  judgment 
of  a  state  court  in  an  action  against  ■  a 
carrier  for  the  death  of  an  employee  in  the 
railway  mail  service,  who  was  not  at  the 
time  on  duty,  in  which  the  carrier  claimed 
the  benefit  of  the  prohibitions  of  the  Hep- 
burn act  of  June  29,  1906,  against  free 
transportation,  will  be  examined  by  the 
Federal  Supreme  Court  to  the  extent  neces- 
sary to  determine  whether  there  is  support 
for  the  finding  that  the  decedent  was  ac- 
cepted by  the  carrier  as  a  gratuitous  pas- 
senger, upon  which  the  state  court  rested 
its  conclusion  that  he  was  entitled  to  the 
protection  of  the  local  law,  irrespective  of 
any  Federal  question.  Southern  P.  Co.  v. 
Schuyler,  43:  901,  33  Sup,  Ct.  Rep.  277,  227 
U.  S.  601,  57  L.  ed.  662. 

516.  The  exclusion,  in  an  action  against  a 
property  owner  for  injuries  to  a  pedestrian 
falling  on  a  sidewalk  because  of  the  alleged 
freezing  of  water  turned  from  his  roof  onto 
the  walk,  of  a  photograph  of  the  direction 
taken  by  water  coming  from  the  roof  during 
a  severe  rainstorm,  is  not  so  plainly  wrong 
that  it  will  be  interfered  with  by  the  re- 
viewing court.  Field  v.  Gowdy,  19:  236,  85 
N.  E.  884,  199  Mass.  568. 

/.  Decisions  in  favor  of  party,    or  not 
affecting   him. 

(See   also   same   heading   in   Digest  L.R.A, 
1-10.) 


94 


APPEAL  AND  ERROR,  VII.  g,   1. 


In  party's  faTon 

517.  A  party  against  -whom  a  vcrdiet  has 
been  rendered  cannot  complain  that  it  is  for 
a  less  amount  than  the  evidence  demands. 
Pullma»«Co.  V.  Schaffner,  g:  407,  55  S.  E. 
933,  128n3a.  609. 

518.  Altliough  an  appeal  from  a  final  de- 
cree in  equity  brings  up  the  whole  case,  one 
enjoined  from  infringing  another's  trade 
name  cannot  complain  that  the  decree  is  too 
favorable  to  him.  Cohen  v.  Nagle,  a:  964, 
76  N.  E.  276,  190  Mass.  4. 

519.  A  guardian  cannot  complain  of  an 
erroneous  method  of  computing  the  inter- 
est in  his  favor  if  it  is  more  favorable  to 
him  than  the  proper  method  would  have 
been.  Abrams  v.  United  States  Fidelity  & 
G.  Co.  5:  575,  106  N.  W.  1091,  127  Wis.  579. 

520.  A  person  cannot  complain  of  a  favor- 
able amendment,  pending  appeal,  of  a  judg- 
ment which  inadvertently  failed  to  afrord 
him  relief  to  which  he  was  entitled.  Brown 
V.  Sebastopol,  19:  178,  96  Pac.  363,  153  Cal. 
704. 

521.  Where  there  is  no  issue  of  agency  in 
an  action  against  a  physician  for  malprac- 
tice, and  the  charge  of  the  trial  court  in 
that  behalf  tended  to  relieve  the  defendant 
of  his  full  liability  under  his  contract,  he 
cannot  thereafter  complain  of  it  as  a  pre- 
judicial error.     Palmer  v.  Huiniston, 

640,  101  N.  E.  283,  87  Ohio  St.  401. 

522.  That  an  erroneous  instruction  given 
by  the  court  in  favor  of  the  losing  party 
was  in  conflict  with  a  correct  one  given  for 
his  opponent  is  not  ground  for  reversal  at 
his  instance.  Independent  Order  of  S.  & 
D.  of  J.  of  A.  V.  Wilkes,  52:  817,  53  So. 
493.  98  Miss.  179. 

523.  A  convict  sentenced  for  a  specified 
term  when  the  statute  provides  that  the 
court  shall  not  fix  the  limit  or  duration  of 
the  term  is  not  entitled  to  a  reversal,  where 
the  statute  absolutely  fixes  the  term  of  the 
sentence,  and  that  imposed  by  the  court  is 
for  a  shorter  term.  State  v.  Perkins,  21: 
931,  120  N.  W.  62,  143  Iowa,  55. 

524.  That  the  jury  found  one  accused  of 
crime  guilty  of  a  lower  degree  of  the  of- 
fense than  that  established  by  the  evidence 
is  not  a  ground  or  cause  for  reversal  on  ap- 
peal from  a  judgment  of  conviction.  State 
V.  Phinney,  12:  935,  89  Pac.  634,  13  Idaho, 
307. 

Not  affecting  him. 

525.  A  railroad  company  jointly  sued  with 
its  conductor  for  injury  to  a  passenger  in- 
flicted by  him  cannot  complain  of  the  ex- 
oneration of  the  conductor  when  judgment 
was  entered  against  itself,  if  the  statute 
provides  that  one  of  several  appellants  shall 
not  be  entitled  to  reversal  because  of  error 
in  the  judgment  against  another  not  af- 
fecting his  rights  in  the  case.  St.  Louis  & 
S.  F.  R.  Co.  V.  Sanderson,  46:  352,  54  So. 
885,  99  Miss.  148. 

526.  One  party  cannot  complain  of  the  ac- 
tion of  the  court  in  striking  out,  at  the  in- 
stance of  his  opponent,  competent  evidence 
which  has  been  introduced  by  the  latter. 
Dugan  V.  Arthurs,  34:778,  79  Atl.  626,  230 
Pa "  299 

Digest  1-52  I..R.A.(N.S.) 


g.  Objections  as  to  which  party  is 
estopped. 

1.  In  general. 

(See   also   same   heading    in   Digest   L.R.A^ 
1-10.) 

See  also  supra,  VII.  f;  infra,  549,  721. 

527.  The  trial  of  issues  tendered  by  a- 
pleading  as  though  they  had  been  properly 
made,  in  the  absence  of  any  plea,  answer, 
or  replication  which  raises  them,  estops  the 
parties  from  subsequently  denying  that  the 
issues  were  duly  made,  and  from  taking 
any  advantage  of  the  lack  of  the  plea,  an- 
swer, or  replication.  Bank  of  Havelock  y. 
Western  U.  Teleg.  Co.  4:  181,  141  Fed.  522,. 
72  C.  C.  A.  580. 

528.  A  party  cannot  complain  of  failure  to 
give  an  instruction  which  he  had  not  re- 
quested. Louisville  v.  Knighton,  8:  478,  100^ 
S.  W.  228,  30  Ky.  L.  Rep.  1037. 

529.  One  who  asks  a  witness  where  his  fa- 
ther was  born  cannot  avoid  responsibility 
for  the  answer  on  the  ground  that  it  was 
based  on  tradition,  whereas  the  interlocutor 
supposed  the  witness  had  reliable  data  or 
knowledge  on  which  to  predicate  his  answer. 
State  ex  rel.  Phelps  v.  Jackson,  8:  1245,  65 
Atl.  657,  79  Vt.  504. 

530.  The  preparation,  by  a  party,  of  the 
findings  and  conclusions  of  law  by  direc- 
tion of  the  court  after  announcement  of  a 
decision,  will  not  estop  him  from  taking 
exception  to  them.  Frank  L.  Fisher  Co.  v. 
Woods,  12:  707,  79  N.  E.  836,  187  N.  Y.  90. 

531.  That  the  trial  court  treated  the  case 
as  if  a  general  denial  had  been  included  ia 
the  answer  and  a  general  denial  filed  in  re- 
ply cannot  be  complained  of  on  appeal  by 
the  plaintifT,  where  he  introduced  evidence 
and  tried  out  the  case  as  if  the  general  is- 
sue had  been  joined,  and  thereby  consented 
to  the  enlargement  of  the  issues.  Rocke- 
feller v.  Ringle,  15:  737,  94  Pac.  810,  77  Kan. 
515. 

By  consent. 

532.  One  agreeing  to  the  admission  of  evi- 
dence cannot  make  its  admission  a  ground 
for  reversal  on  appeal.  Priddy  v.  Boice, 
9:  718,  99  S.  W.  1055,  201  Mo.  309. 

533.  One  consenting  tcr  a  summary  meth- 
od of  trying  a  mandamus  proceeding  cannot 
complain  thereof  on  appeal, — especially, 
where  the  substantial  ends  of  justice  have 
been  met.  State  ex  rel.  Dresser  v.  Board 
of  School  Dist.  No.  1,  16:  730,  116  N.  W. 
232,  135  Wis.  619. 

534.  One  who  consents  to  the  trial  of  a 
cause  by  the  court  without  a  jury  cannot 
insist  on  appeal  that  it  was,  because  of  that 
fact,  tried  on  a  wrong  theory,  to  his  injury. 
Indianapolis  Northern  Traction  Co.  v. 
Brennan,  30:  85,  87  N.  E.  215,  90  N.  E.  66» 
174  Ind.  1. 

(.s.W).A,a.i  5..;_i  i«osia 


APPEAL  AND  ERROR,  VII.  g,  2,  h. 


95 


2.  By  requesting  or  obtaining  ruling  or 
decision. 

(Bee   also   same   heading   in   Digest   L.R.A. 
1-10.) 

535.  One  cannot  complain  of  a  ruling  by 
the  trial  court  made  at  his  request.  Com. 
V.  Althause,  31:  999,  93  N.  E.  202,  207  Mass. 
32. 

536.  One  who  prays  for  the  submission  of 
a  certain  question  to  the  jury  cannot  take 
exception  to  tlie  submission  of  the  same 
question  on  behalf  of  his  opponent.  Mount 
Vernon  Brewing  Co.  v.  Teschner,  16:  758, 
69  Atl.  702,  108  Md.  158. 

537.  In  an  action  against  both  an  alleged 
agent  and  his  undisclosed  principal,  a  dis- 
missal, at  the  close  of  the  plaintiffs'  case,  as 
to  the  alleged  agent,  in  response  to  a  mo- 
tion that  plaintiffs  be  required  to  elect,  can- 
not be  claimed  by  the  alleged  undisclosed 
principal  to  be  prejudicial  to  him,  Avhere  he 
joined  in  the  request  that  plaintiffs  be  re- 
quired to  elect.  Gay  v.  Uren,  26:  742,  123 
N.  W.  295,  109  Minn.   101. 

Pleading. 

538.  Objections  to  the  introduction  of  evi- 
dence to  support  a  claim  in  suit  on  the 
ground  that  it  was  not  denied  by  the  plead- 
ings is  in  effect  an  admission  of  the  indebt- 
edness, which  will  preclude  any  contention, 
on  appeal,  that  the  claim  was  not  supported 
by  the  evidence.  Mitau  v.  Roddan,  6:  275, 
84  Pac.  145,  149  Cal.  1. 

Evidence. 

539.  A  party  cannot  complain  of  the  ad- 
mission of  evidence  in  response  to  his  own 
questions.  Johnson  v.  Walker,  1:470,  39 
So.  49,  86  Miss.  757. 

540.  An  appellant  cannot  predicate  error 
upon  the  e.xclusion  of  evidence  on  his  own 
objection.  Lantz  v.  Moeller,  50:  68,  136 
Pac.  687,  76  Wash.  429. 

541.  One  who  resists  a  motion  made  by  a 
party  introducing  improper  evidence  to  ex- 
clude it  from  the  jury  cannot  complain,  on 
appeal,  of  its  introduction.  Comer  v.  W.  M. 
Ritter  Lumber  Co.  6:  552,  53  S.  E.  906,  59 
W.  Va.  688. 

542.  A  party  cannot  on  appeal  complain 
of  a  construction  of  the  evidence  adopted  by 
the  trial  cour^.  at  his  request.  Mills  v. 
Smith,  6:  865,  78  N.  E.  765,  193  Mass.  11. 

543.  An  accused  who  erroneously  procures 
the  introduction  of  nonprejudicial  testimony 
as  to  the  intoxicating  properties  of  malt 
liquor  alleged  to  have  been  unlawfully  sold 
cannot  complain  thereof  upon  appeal.  Lu- 
ther v.  State,  20:  1 146,  120  N.  W.  125,  83 
Neb.  455. 

Instructions. 

544.  A  party  cannot  complain  of  the  giv- 
ing of  an  instruction  which  is  substantially 
similar  to  one  requested  by  himself.  Illinois 
C.  R.  Co.  V.  Coley,  i :  370,  89  S.  W.  234,  121 
Ky.  385. 

545.  One  who  asked  erroneous  instructions 
which  were  given  cannot  complain  that  they 
contradicted  other  instructions  which  were 
also  given  by  the  court.  McKenzie  v.  North 
Digest   1-52  L.R.A.(N.S.) 


'  Coast  Colliery  Co.  28:  1244,  104  Pac.  801,  55 

I  Wash'.  495. 

I  546.  One  who  procures  the  giving  of  an 
instruction  in  conflict  with  a  correct  state- 
ment of  the  law  which  has  been  previously 
given  cannot  complain  of  the  error  of  the 
court  in  that  regard.  Indianapolis  Traction 
&  T.  Co.  v.  Kidd,  7:  143,  79  N.  E.  347,  167 
Ind.  402. 
Judgment. 

547.  One  cannot  complain  on  appeal  of  a 
judgment  entei-ed  upon  his  request  and  ac- 
cepted by  the  other  party  to  the  suit  in  lieu 
of  a  new  trial.  Hodge  v.  Hodge,  11:  873, 
91  Pac.  764,  47  Wash.  196. 

h.  Interlocutory   matters;    orders,    etc., 
not  appealed  from. 

(See   also   same   heading   in  Digest   L.R.A. 

1-10.) 

548.  Questions  as  to  the  propriety  of  the 
appointment  of  a  receiver  must  be  raised 
by  appe^.!  from  the  order,  and  cannot  be  re- 
viewed on  appeal  from  the  final  judgment. 
Jones  V.  North  Pacific  Fish  &  Oil  Co.  6:  940, 
84  Pac.  1122,  42  Wash.  332. 

549.  Failure  of  the  successful  party  to 
question  by  cross  errors  on  appeal  to  an 
intermediate  appellate  court  the  correctness 
of  a  rule  striking  out  testimony  because  of 
the  incompetency  of  the  witness,  when  his 
opponent  succeeds  in  reversing  the  judg- 
ment because  the  admission  of  such  testi- 
mony was  prejudicial  error,  notwithstand- 
ing it  was  stricken  out,  does  not  estop  him 
from  questioning  in  a  higher  appellate  court 
the  correctness  of  a  ruling  holding  the  wit- 
ness incompetent  on  a  subsequent  trial  of 
the  same  cause.  Bailey  v.  Robison,  42:  305, 
91  N.  E.  98,  244  111.  16. 

550.  Appeal  from  an  order  overruling  ob- 
jections to  the  appointment  of  appraisers  in 
an  eminent  domain  proceeding  need  not  be 
taken  in  addition  to  th^t  from  the  order 
appointing  appraisers,  under  a  statute  pro- 
viding that,  if  the  objections  are  overruled, 
the  court  shall  appoint  appraisers,  and  al- 
low an  appeal  "from  such  interlocutory  or- 
der overruling  objections  and  appointing  ap- 
praisers;" but  the  appeal  from  the  appoint- 
ment of  the  appraisers  may  present  all  prior 
adverse  rulings  to  which  exceptions  have 
been  saved.  Sexauer  v.  Star  Milling  Co. 
26:609,  90  N.  E.  474,  173  Ind.  342. 

551.  An  appeal  from  an  order  denying 
a  motion  for  new  trial  does  not  bring  up 
for  review  the  sufficiency  of  the  complaint  or 
findings  to  support  the  judgment  or  conclu- 
sions of  law.  Wadman  v.  Burke,  i:  1192, 
81  Pac.  1012,  147  Cal.  351. 
Pleadings. 
See  also  supra,  551. 

552.  Complainant  has  a  right  to  a  review 
by  the  appellate  court  of  an  order  dismiss- 
ing a  bill  for  want  of  equity,  although  he 
neglects    to    take    proper    steps    to  entitle 

'  liimself  to  a  review  of  the  order  sustaining  a 
I  demurrer  thereto.  Wormley  v.  Wormlev, 
'  3:  481,  69  N.  E.  865,  207  111.  411. 


96 


APPEAL  AND  ERROR,  VII.  i,  1. 


553.  On  appeal  from  an  interlocutory  or- 
der overruling  a  plea  of  res  judicata,  error 
assigned  on  an  interlocutory  order  overrul- 
ing a  demurrer  to  the  complaint,  which  was 
not  specifically  appealed  from,  will  not  be 
considered.  Prall  v.  Prall,  26:  577,  50  So. 
867,  58  Fla.  496. 

554.  The  court's  rulings  on  demurrer  to 
the  petition  will  be  reviewed  on  writ  of  er- 
ror from  the  final  judgment  taken  within 
the  time  prescribed  by  statute,  although  pe- 
tition for  writ  of  error  to  review  such  rul- 
ings was  not  taken  within  a  specified  time 
after  they  were  made.  Wails  v.  Farring- 
ton,  35:  1174,  116  Pac.  428,  27  Okla.  754. 

555.  Under  a  statute  excepting  objections 
to  a  complaint  for  failure  to  state  facts 
constituting  a  cause  of  action  from  those 
which  are  waived  by  failure  to  raise  them 
by  demurrer  or  answer,  the  sufficiency  of 
the  complaint  to  state  a  cause  of  action 
may  be  considered  on  appeal  from  an  or- 
der appointing  a  referee,  although  the  stat- 
utory time  for  taking  an  appeal  from  the 
order  overruling  the  demurrer  to  the  com- 
plaint has  elapsed  and  an  appeal  from  such 
order  had  been  dismissed  because  the  filing 
of  an  answer  had  waived  the  right  to  ap- 
peal from  the  order.  Pierson  v.  Minnehaha 
County,  38:  261,  134  N.  W.  212,  28  S.  D.  534. 
Injunction. 

556.  A  reservation  by  the  trial  court  of 
the  question  whethe.-  a  fine  imposed  on  de- 
fendant for  violation  of  an  injunction  can 
be  paid  to  complainants  in  satisfaction  of 
their  damages  and  expenses  is  merely  inter- 
locutory, and  not  subject  to  review  on  ap- 
peal. Franklin  Union  No.  4  v.  People,  4: 
looi,  77  N.  E.  176,  220  111.  355. 

i.  Discretional^  matters. 

1.  In  general;  costs;  contemt. 

f 
(See  al^o   same   heading   in   Digest   L.R.A. 
1-70.) 

557.  Judges  of  the  superior  court  are 
vested  with  large  discretion  in  habeas  cor- 
pus cases,  and  their  judgment  in  such  cases 
on  questions  of  law  and  fact  will  not  be 
interfered  with  by  the  supreme  court,  un- 
less manifestly  abused.  Wilkinson  v.  Lee, 
42:  1013,  75  S.  E.  477,  138  Ga.  360. 

558.  The  decision  of  a  trial  judge  that 
several  accused  persons  shall  be  tried  joint- 
ly is  not  subject  to  review  on  appeal,  where 
that  matter  is  by  statute  placed  within  his 
discretion.  People  v.  Burman,  25:  251,  117 
N.  W.  589,  154  Mich.  150. 

559.  The  refusal  of  a  trial  judge  in  a 
criminal  prosecution  to  permit  a  witness  to 
testify  in  narrative  form  will  not  be  re- 
viewed, unless  the  discretion  vested  in  such 
judge  was  clearly  abused.  Pumphrev  v. 
State,  23:  1023,  122  N.  W.  19.  84  Neb.'636. 

560.  A  new  trial  will  not  be  granted  by 
the  supreme  court  because  the  trial  judge, 
in  the  exercise  of  the  discretion  with  which 
h6  is  invested,  prevented  coimsel  for  the 
defendant  on  a  trial  for  murder  frdm  read- 
ing in  his  argument  to  the  jury  a  decision 
Digest  1-52  L.R.A.(N.S.) 


of  the  supreme  court,  which  was  entirely 
foreign  to  the  issues  made  in  the  case  by 
the  evidence  and  the  statement  of  the  ac- 
cused. Rogers  v.  State,  10:  999,  57  S.  E. 
227,  128  Ga.  67. 

561.  Refusal  of  the  trial  judge  to  modify 
his  findings  at  the  time  of  entering  an  inter- 
locutory decree,  so  as  to  make  them  accord 
with  the  facts  subsequently  found  by  the 
master,  will  not  be  reversed,  where  counsel 
announced  before  the  master  that  he  did 
not  seek  to  overthrow  the  findings  of  the 
judge.  Nelson  v.  J.  H.  Winchell  &  Co.  23: 
1 150,  89  N.  E.  180,  203  Mass.  75. 

562.  No  abuse  of  discretion  is  shown  in  re- 
fusing amendment  of  a  return  of  service  of 
process  so  as  to  correct  defendant's  initial, 
where  defendant  testifies  positively  that  no 
service  was  made  on  him,  while  the  officer 
making  the  service  has  no  recollection  as  to 
whom  he  served.  Stubbs  v.  McGillis,  18: 
405,  96  Pac.  1005,  44  Colo.  138. 

563.  The  question  of  recommitting  a  mas- 
ter's report  to  have  rulings  by  which  evi- 
dence is  alleged  to  have  been  erroneously  ad- 
mitted inserted  for  review  is  within  the 
discretion  of  the  trial  judge,  where  there 
was  no  objection  to  the  admission  of  such 
evidence  when  it  was  ofi'ered,  although  ob- 
jection to  the  report  was  made  upon  that 
ground  and  exceptions  filed  in  pursuance 
thereof.  Eurnham  v.  Dowd,  51:  778,  104  N. 
E.  841,  217  Mass.  301. 

564.  A  court  order  setting  aside  for  im- 
proper conduct  the  award  of  commissioners 
appointed  in  condemnation  proceedings  will 
not  be  disturbed  on  appeal  by  petitioner, 
where  it  appears  that  his  attorney  treated 
one  of  the  commissioners  to  intoxicating  li- 
quors during  the  proceedings,  that  the 
award,  after  being  once  agreed  upon,  was 
recalled,  and,  upon  reconsideration,  mate- 
rially reduced,  and  that  such  recall  was  after 
such  attorney  had  discussed  the  matter  with 
one  of  the  commissioners,  although  the  hold- 
ing of  any  such  discussion  as  to  the  amount 
of  award  was  denied  under  oath.  Re  Mil- 
waukee Light,  H.  &  T.  Co.  27:  567,  125  N.  W. 
903,  142  Wis.  424. 

565.  The  reasonableness  of  an  allowance 
to  the  administrator  for  funeral  expenses 
of  the  deceased,  in  the  absence  of  statutory 
or  testamentary  provision,  may  be  reviewed 
on  appeal,  when  the  facts  are  uncontrovert- 
ed.  Kroll  v.  Close,  28:  571,  92  N.  E.  29,  82 
Ohio  St.  190. 

566.  The  discretion  of  the  court  to  be 
exercised  in  case  of  the  attempted  forfei- 
ture of  a  street  railway  privilege  in  a  strc  ^t 
by  the  council  of  a  town  is  a  sound  legal 
discretion,  subject  to  review,  and  the  ap- 
pellate court  will  reverse  the  action  of  the 
trial  court  when,  in  its  opinion,  relief  has 
been  improperly  denied.  Wheeling  &  E.  G. 
R.  Co.  V.  Triadelphia,  4:  321,  52  S.  E.  499, 
58  W^.  Va.  487. 

567.  W'here  no  certain  guide  exists  in  any 
particular  ca.se  seeking  the  cancelation  of  an 
mstrument,  by  way  of  general  rule  illus- 
trated by  precedents,  as  to  whether  or  not 
such   special   circumstances    exist    rendering 


APPEAL  AND  teRROR,  VII.  i,  2. 


97 


the  remedy  at  law  inadequate  as  to  warrant 
interference  by  a  court  of  equity,  the  mat- 
ter, in  large  degree,  must  be  solved  by  the 
exercise  of  judicial  discretion,  which  will 
not  be  interfered  with  on  appoal  unless 
manifestly  wrong.  Johnson  v.  Swanke,  5: 
1048,  107 'N.  W.  481,  128  Wis.  68. 

568.  The  determination  of  the  chancellor 
that,  because  of  laches,  a  joint  tenant  should 
not  be  permitted  to  share  in  the  benefit  of 
a  purchase  by  his  cotenant  under  an  out- 
standing encumbrance  on  tiie  property,  will 
not  be  interfered  with  on  appeal,  except  in 
case  of  abuse  of  discretion.  Stevenson  v. 
Boyd,  -9:  525,  96  Pac.  284,  153  Cal.  630. 

569.  There  is  no  abuse  of  discretion  on 
the  part  of  the  trial  court  in  awarding  the 
custody  of  a  child  to  its  mother  upon  habeas 
corpus  proceeding,  where  it  was  shown 
that  the  father,  to  whom  the  custody  of 
the  child  was  awarded  in  a  divorce  pro- 
ceeding previously  had,  upon  condition  that 
the  mother  be  permitted  to  visit  the  child 
at  reasonable  intervals  ar>d  durations,  ex- 
pressed his  intention  of  disregarding  that 
part  of  the  decree  requiring  that  the  child 
should  see  and  visit  its  mother,  and  car- 
ried the  child  to  a  foreign  country,  and  the 
evidence  further  showed  that  the  father  is 
a  man  of  coarse  manner,  and  curses  in  the 
presence  of  the  child,  and  does  not  permit 
her  to  attend  church,  and  the  child  testified 
that  she  desires  to  live  with  her  mother. 
Barlow  v.  Barlow,  52:  683,  81  S.  E.  433, 
141   Ga.   535. 

Costs. 

570.  A  provision  in  a  decree  for  plaintifT, 
in  a  suit  in  equity  in  which  a  )\^ceiver  has 
been  appointed  and  ordinary  costs  awarded 
against  all  the  defendants,  that  one  of  the 
defendants,  who  had  claimed  five  sixths  of 
the  property  in  dispute,  shovild  pay  the  ex- 
traordinary costs  of  the  suit,  will  not  be 
disturbed  on  appeal,  rmless  it  appears  that 
he  has  been  required  to  pay  more  than  his 
due  proportion  of  costs.  Nutter  v.  Brown, 
1:  1083,  52  S.  E.  88,  58  W.  Va.  237. 

571.  The  discretion  of  the  trial  court  in 
taxing  the  cost  of  all  the  folios  of  findings 
against  a  creditor  seeking  to  set  aside  a  sale 
as  a  fraud  on  him  will  not  be  interfered 
with  because  it  also  involves  findings  in  a 
proceeding  by  the  vendor  to  set  aside  the 
transaction  as  a  fraud  on  him,  where  sub- 
stantially none  of  the  facts  and  circum- 
stances passed  upon  in  them  are  not  rele- 
vant to  the  issues  raised  by  the  creditor. 
Rosenheimer  v.  Krenn,  5:  395,  106  N.  W.  20, 
126  Wis.  617. 

572.  The  determination  of  the  trial  court 
as  to  the  amount  of  attorneys'  fees  to  be  al- 
lowed the  property  owner  in  a  condemnation 
proceeding  is,  under  the  statute,  not  subject 
to  review  on  appeal.  Boyne  City,  G.  &  A. 
R.  Co.  V.  Anderson,  8:  306,  109  N.  W.  429, 
146  Mich.  328. 

573.  The  reviewing  court  will  not  interfere 
with  the  discretion  of  the  trial  court  in 
disallowing  to  plaintiff  the  costs  of  taking 
defendant's  depositions  before  trial,  where 
the  evidence  upon  which  it  acted  in  deter-  | 
mining  the  necessity  of  taking  them  is  not 
Digest  1-52  L.R.A.(N.S.)  7 


before  it.     Lomita  Land  &  W.  Co.  v.  Robin- 
son, 18.  1 106,  97  Pac.   10,  154  Cal.  36. 

574.  Whether  or  not  a  second  suit  for 
the  same  cause  of  action  shall  be  stayed 
unless  the  costs  in  the  first  one  are  paid 
rests  in  the  sound  discretion  of  the  trial 
court.  Brinsfield  v.  Howeth,  24:  583,  68  Atl. 
566,  107  Md.  278. 

575.  The  action  of  a  trial  judge  in  taxing 
the  entire  fee  of  tlie  auditor  in  an  equitable 
action  against  one  party  will  not  be  inter- 
fered with  on  appeal  except  for  abuse  of  dis- 
cretion. McGregor  v.  Fitzpatrick,  25:  50,  65 
S.  E.  859,  133  Ga.  332. 

Contempt. 

576.  Whether  a  defendant  in  injunction, 
who  violates  the  same,  should  be  punished 
for  the  contempt  shown  the  court,  concerns 
the  court  in  the  matter  of  the  maintenance 
of  its  dignity  and  authority;  but  whether, 
by  coercive  or  punitory  measures,  such  de- 
fendant should  be  compelled  to  obey  the 
writ,  issued  by  a  competent  court,  for  the  , 
preservation  of  a  civil  right  asserted  by 
the  plaintiff,  concerns  the  plaintiff,  and  the 
action  of  the  trial  court  upon  that  question 
may  be  subject  to  review  in  this  court  on 
appeal.  Vicksburg,  S.  &  P.  R.  Co.  v.  Web- 
ster Sand,  G.  &  Constr.  Co.  47:  1155,  62  So. 
140,  132  La.  1051. 

2.  Continuance  or  adjournment. 

(See   also   same  heading   in   Digest   L.R.A. 

1-10.) 

511.  The  granting  or  refusal  of  a  con- 
tinuance in  a  criminal  case  is  largely  a 
matter  of  discretion  of  the  trial  court,  and 
the  supreme  court  will  not  reverse  the  trial 
court  on  this  ground  unless  it  is  shown  that 
there  has  been  an  abuse  of  discretion. 
Monaghan  v.  State,  46:  1149,  134  Pac.  77, 
10  Okla.  Crim.  Rep.  89. 

578.  An  application  for  a  continuance  is 
addressed  to  the  discretion  of  the  trial 
court,  and  the  ruling  of  the  court  thereon 
will  not  be  reviewed  upon  appeal  unless  it 
is  made  to  appear  from  the  record  that  this 
discretion  has  been  abused.  Edwards  v. 
State,  44:  701,  131  Pac.  956,  9  Okla.  Crim. 
Rep.   306. 

579.  The  granting  or  refusing  of  a  motion 
for  a  continuance  is  intrusted  to  the 
judicial  discretion  of  the  trial  court,  and 
it  is  an  abuse  of  that  discretion  only  that 
is  fatal  error.  Armour  &  Co.  v.  Kollmever, 
16:  1 1 10,  161  Fed.  78,  88  C.  C.  A.  242. 

580.  The  matter  of  granting  a  continuance 
of  a  case  is  within  the  sound  discretion  of 
the  trial  court;  and,  unless  it  is  plainly  ap- 
parent that  such  discretion  has  been  abused, 
the  appellate  court  will  not  reverse  a  judg- 
ment for  the  refusal  of  a  continuance.  Boyd 
v.  Beebe,  17:  660,  61  S.  E.  304,  64  W.  Va.  216. 

581.  Before  reversing  a  judgment  for 
error  in  overruling  a  motion  to  continue,  it 
should  appear  that  the  trial  court  abused 
its  discretion,  and  that  the  mover  of  the 
motion  has  been  prejudiced  therebv.  State 
V.  Angelina,  51:  877,  80  S.  E.  141,  73  W.  Va. 
146, 


98 


APPEAL  AND  ERROR,  VII.  i,  3. 


582.  An  application  for  a  continuance 
upon  the  ground  of  absent  witnesses  is  ad- 
dressed to  the  sound  discretion  of  the  trial 
court;  and,  unless  an  abuse  of  this  dis- 
cretion appears  upon  an  examination  of 
the  entire  record,  a  judgment  of  conviction 
will  not  be  reversed  upon  appeal.  Litch- 
field V.  State,  45:  153,  126  Pac.  707,  8  Okla. 
Crim.  Rep.  164. 

583.  In  criminal  as  well  as  in  civil  cases 
an  application  for  a  continuance  is  addressed 
to  the  sound  judicial  discretion  of  the  trial 
court,  and  the  denial  of  such  a  motion  will 
not  be  reversed  by  an  appellate  court  unless 
there  has  been  a  palpable  abuse  of  this 
judicial  discretion,  which  must  be  clearly 
and  affirmatively  made  to  appear  in  the  bill 
of  exceptions;  the  rule  being  that  motions 
for  a  continuance  in  criminal  cases  are  to  be 
even  more  closely  scanned  than  in  civil  cases, 
because  of  the  greater  temptation  to  delay. 
Pittman  v.  State,  8:  509,  41  So.  385,  51  Fla. 
94. 

3.  As  to  pleadings;  indictment. 

584.  There  is  no  abuse  of  discretion  in  re- 
fusing to  permit  an  accused  to  withdraw 
his  plea  of  not  guilty  and  attack  the  in- 
dictment for  duplicity,  where  he  had  been 
permitted  to  withdraw  such  plea  once  to  at- 
tack the  indictment  on  other  grounds,  and 
the  statute  of  limitations  has  run  against 
the  offense  charged.  Waller  v.  United 
States,  31:  113,  179  Fed.  810,  103  C.  C.  A. 
302. 

585.  The  right  to  permit  a  defendant  to 
withdraw  his  plea  of  "guilty  of  murder  in 
the  first  degree,"  after  having  withdrawn  his 
former  plea  of  "not  guilty,"  and  allow  him  to 
plead  anew  his  plea  of  "not  guilty,"  and  to 
have  a  trial  thereon  before  a  jury,  rests  in 
the  sound  discretion  of  the  trial  court,  and 
is  reviewable  on  appeal  for  any  abuse.  State 
V.  Stevenson,  19:  713,  62  S.  E.  688,  64  W. 
Va.   392. 

Amendment. 

586.  An  order  refusing  leave  to  amend  a 
petition  is  not  subject  to  review  on  appeal. 
Continental  Trust  Co.  v.  Baltimore  Refriger- 
ating &  Heating  Co.  46:  887,  87  Atl.  947, 
120  Md.  450. 

587.  The  allowance  of  an  amendment  to 
an  answer  will  not  be  interfered  with  on  ap- 
peal, unless  abuse  of  discretion  is  shown. 
Rude  V.  Levy,  24:  91,  96  Pac.  560,  43  Colo. 
482. 

588.  Permitting  the  filing  of  an  amended 
complaint  will  not  be  interfered  with  on 
appeal,  if  there  is  nothing  to  indicate  an 
absence  of  discretion.  Dunphy  v.  Dunphy, 
38:  818,  119  Pac.  512,  161  Cal.  380. 

589.  The  exercise  of  the  discretion  of  the 
trial  court,  in  permitting  an  amended  bill 
to  be  filed,  will  not  be  disturbed  by  an  ap- 
pellate court,  except  in  cases  of  abuse  of 
such  discretion.  Floyd  v.  Duflfy,  33:  883,  69 
S.  E.  993,  68  W.  Va.  339. 

590.  The  appellate  court  cannot  review  the 
action  of  the  trial  court  in  refusing  to  per- 
mit an  accused  to  withdraw  his  plea  of 
Digest  1-52  Ii.R.A.(N.S.) 


not  guilty  and  file  a  special  plea  to  the 
indictment.  Com.  v.  Tucker,  7:  1056,  76  N. 
E.  127,  189  Mass.  457. 

591.  It  is  within  the  discretion  of  the 
trial  court  to  permit  the  amendment  of  the 
complaint  in  an  action  to  recover  damages 
for  wrongful  death  so  as  to  change  tlie  aver- 
ment as  to  the  source  of  plaintiffs  letters 
of  administration,  by  stating  that  they 
were  issued  in  a  county  different  from  that 
first  stated.  Chicago  G.  VV.  R.  Co.  v.  Mc- 
Cormick,  47:  18,  200  Fed.  375,  118  C.  C.  A. 
527. 

592.  The  allowance  of  an  amendment  by 
the  county  court  upon  an  appeal  from  the 
justice  court,  in  which  the  only  change  ef- 
fected is  to  increase  the  amount  of  damages 
asked  for  or  to  add  a  new  element  of  dam- 
ages, is  not  such  an  abuse  of  discretion  as 
will  require  a  reversal,  at  least  where  the 
only  objection  urged  arose  during  the  trial 
by  objection  made  after  answers  to  ques- 
tions propounded  to  the  witnesses.  Hor- 
ton  v.  Early,  47:  314,  134  Pac.  436,  39  Okla. 
99. 

593.  The  right  to  file  amended  pleadings, 
in  the  county  court,  on  appeal  from  a  jus- 
tice of  the  peace  court,  depends  upon 
whether  it  is  in  furtherance  of  justice  to 
permit  them  to  be  filed,  and  is  to  be  de- 
termined by  that  court  in  the  exercise  of 
a  sound  judicial  discretion.  Horton  v. 
Early,  47:314,  134  Pac.  436,  39  Okla.  99. 

594.  There  is  no  abuse  of  discretion  in 
sustaining  a  motion  to  strike  an  amendment 
of  the  answer,  filed  after  all  the  evidence  is 
adduced,  to  make  the  pleading  conform 
thereto.  Bradbury  v.  Chicago,  R.  I.  &  P. 
R.  Co.  40:  684,  128  N.  W.  1,   149  Iowa,  51. 

595.  It  is  not  an  abuse  of  discretion  for 
a  trial  judge  to  permit  the  filing  of  a  sup- 
plemental answer  after  a  hearing  on  the 
merits,  which  sets  up  a  decree  of  a  court 
of  last  resort  in  another  state  claimed  to 
be  res  judicata  of  the  matter  in  contro- 
versy, although  the  decree  of  the  lower 
court,  which  was  affirmed  by  the  decree 
sought  to  be  set  up,  had  been  entered  be- 
fore such  hearing.  Old  Dominion  Copper 
Min.  &  Smelting  Co.  v.  Bigelow,  40:  314, 
89  N.  E.  193,  203  Mass.  159. 

596.  Permitting  an  amendment  of  a  plea 
of  the  statute  of  limitations  so  as  to  set  out 
the  subdivision  of  the  section  relied  on  is 
not  an  abuse  of  discretion  where  there  is 
only  one  subdivision  that  is  applicable  so 
that  the  plea  is  sufficient  without  amend- 
ment. St.  Paul  Title  &  T.  Co.  v.  Stens- 
gaard,  39:  741,  121  Pac.  731,  162  Cal.  178. 

597.  There  is  no  abuse  of  discretion  in 
permitting  an  amendment  to  a  pleading  to 
make  it  conform  to  evidence  admitted  with- 
out objection.  Bowe  v.  Gage,  12:  265,  112 
N.  W.  469,  132  Wis.  441. 

598.  Refusal  to  permit  an  amendment  of 
an  answer  already  filed,  so  as  to  set  up  the 
statute  of  limitations  as  a  bar  to  the  ac- 
tion, is  not  an  abuse  of  discretion  unless  it 
is  made  to  appear  that  the  amendment  would 
be  in  furtherance  of  justice.  Rudd  v.  Byrnes, 
26:  134,  105  Pac.  957,  156  Cal.  636. 


APPEAL  AND  ERROR,  VII.  i,  4. 


99 


4.  As   to   evidence ;   witnesses;   physical 
examination. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Discretion  as  to  order  of  proof,  see  infra, 
652-656. 

Reopening  case  to  receive  additional  evi- 
dence, see  infra,  658,  659. 

599.  Assignments  of  error  upon  measures 
adopted  by  the  trial  court  to  prevent  in- 
terruption of  counsel  in  the  examination 
of  witnesses  are  entitled  to  slight  con- 
sideration, if  it  appears  that  the  court's 
action  -w&s,  prompted  by  the  misconduct 
of  complaining  counsel  in  this  regard. 
Minneapolis  v.  Canterbury,  48:  842,  142  N. 
W.  812,  122  Minn.  301. 

600.  In  the  absence  of  abuse  the  discre- 
tion of  a  trial  court  in  refusing  to  quash 
the  deposition  of  a  witness  who  is  present 
at  the  trial,  and  require  him  to  be  placed 
on  the  stand,  will  not  be  reviewed  on  ap- 
peal. Holt  V.  Guerguin,  50:  11 36,  163  S.  W, 
10,  —  Tex.  — . 

Admission   of  evidence. 

601.  Whether  a  sufficient  foundation  has 
been  laid  for  the  admission  of  documentary 
evidence  is  addressed  to  the  discretion  of 
the  trial  court.  0.  N.  Bull  Remedy  Co.  v. 
Clark,  32:  519,  124  N.  W.  20,  109  Minn.  396. 

602.  The  decision  of  the  trial  court  with 
respect  to  what  declarations  shall  be  re- 
ceived as  part  of  the  res  gestoe  will  not  be 
interfered  with  on  appeal,  unless  manifestly 
wrong.  Johnson  v.  State,  5:  809,  108  N.  W. 
55,  129  Wis.  146. 

603.  The  ruling  of  a  trial  court  that  proof 
of  insolvency  at  a  particular  date  is  not 
too  remote  to  be  of  evidentiary  significance 
as  circumstantially  bearing  on  the  question 
of  like  insolvency  at  an  earlier  date  is  a 
decision  as  to  the  competencj'  of  such  evi- 
dence, and  should  not  be  disturbed  on  appeal 
unless  clearly  wrong.  Ellis  v.  State,  20:  444, 
119  N.  W.  1110,  138  Wis.  51^. 

604.  Where  the  evidence  shows  that  a 
witness  who  had  testified  upon  a  prelim- 
inary trial  could  not  be  found  by  the  offi- 
cers after  a  diligent  search,  the  trial  court 
has  a  right,  in  the  exercise  of  its  discretion, 
to  permit  the  admission  of  such  testimony 
against  a  defendant,  and  upon  appeal  it 
will  be  presumed  that  this  discretion  was 
properly  exercised,  in  the  absence  of  a  show- 
ing to  the  contrarv.  Edwards  v.  State,  44: 
701,  131  Pac.  956,  9  Okla.  Crim.  Rep.  306. 

605.  In  an  action  for  personal  injuries 
by  a  servant  against  the  master,  the  ad- 
mission in  evidence  of  the  result  of  experi- 
ments, and  the  performance  of  experiments 
in  the  presence  of  the  jury  under  conditions 
similar  to  those  under  which  the  plaintiff 
claimed  to  have  been  injured,  is  within  the 
discretion  of  the  trial  court.  Curtis  k 
Gartside  Co.  v.  Pribyl,  49:  471,  134  Pac. 
71,  38  Okla.  511. 

606.  The    admissibility    of    a    confession, 
where  it  is  challenged,  is  a  question  solely  | 
for  the  court  after  hearing,  in  the  absence 
Digest  1-52  KR.A.CN.S.) 


of  the  jury,  all  the  evidence  on  each  side 
respecting  the  circumstances  under  which 
the  confession  was  made ;  and  the  court  is 
vested  with  a  large  discretion  in  deter- 
mining the  matter.  Berrv  v.  State,  31:  849, 
111  Pac.  676,  4  Okla.  Crmi.  Rep.  202. 
Exclusion  of  evidence. 

607.  In  a  suit  for  damages  for  injury  to 
land  by  the  damming  back  of  the  water  of 
a  river  at  a  certain  date,  the  court  may, 
in  its  discretion,  exclude  evidence  as  to  the 
precipitation  at  another  date  for  the  pur- 
pose of  explaining  conditions  shown  in  pho- 
tographs taken  at  the  time,  the  matter  be- 
ing on  a  collateral  point.  Hufnagle  v.  Dela- 
ware &  Hudson  Co.  40:  982,  76  Atl.  205, 
227  Pa.  476. 

608.  The  discretion  of  the  trial  judge  in 
refusing  to  admit  in  evidence  documents  to 
serve  as  a  standard  for  comparison  of  hand- 
writing will  not  be  interfered  with  on  ap- 
peal where  they  were  not  conceded  or  ad- 
mitted to  be  genuine,  and  there  is  nothing 
to  show  that  the  opposite  party  is  precluded 
from  denying  it.  Smith  v.  Hanson,  18:  520, 
96  Pac.  1087,  34  Utah,  171. 

609.  The  appellate  court  will  not  interfere 
with  a  ruling  by  the  trial  court  that  a  state- 
ment by  one  who  had  killed  another,  to  a 
motorman  on  a  street  car  by  which  he  was 
going  to  give  himself  up  to  the  authorities, 
is  not  a  part  of  the  res  gestae,  where  he  re- 
mained at  the  scene  of  the  homicide  long 
enough  to  summon  a  physician  and  do  other 
things,  including  a  visit  to  his  room  to  se- 
cure his  hat,  and  then,  before  reaching  the 
car,  walked  about  a  third  of  a  mile.  John- 
son V.  State,  5:  809,  108  N.  W.  55,  129  Wis. 
146. 

View  by  jury. 

610.  The  Nebraska  supreme  court  will  not 
reverse  a  judgment  of  the  district  court 
because  of  the  refusal  of  the  latter  to  per- 
mit the  jury  to  view  the  premises  Avhich 
were  the  subject  of  litigation,  unless  an 
abuse  of  discretion  is  shown.  Beck  v. 
Staats,  16:  768,  114  N.  W.  633,  80  Neb.  482. 
Attendance   of  -witnesses. 

611.  A  sound  judicial  discretion  is  vested 
in  the  trial  judge  to  determine  whether  or 
not  the  statutory  requirements  have  been 
properly  complied  with  to  entitle  one  ac- 
cused of  crime  to  procure  the  attendance  of 
witnesses  in  his  behalf  at  the  expense  of 
the  county,  and  also  to  determine  the  bona 
fides  of  such  application;  and  an  appellate 
court  will  not  disturb  the  action  of  the  trial 
judge  upon  such  application,  unless  an  abuse 
of  discretion  is  clearly  shown.  Pittman  v. 
State,  8:  509,  41  So.  385,  51  Fla.  94. 
Competency  of  vritnesnes. 

612.  The  competency  of  a  child  as  a  wit- 
ness is  a  question  for  the  trial  court.  State 
V.  Finding,  49:  449,  144  N.  W.  142,  123 
Minn.   413. 

613.  The  appellate  court  will  not  inter- 
fere with  the  discretion  of  the  trial  court 
in  ruling  upon  the  competency  of  experts 
to  testify  as  to  the  mental  capacity  of  a 
testator.  Auld  v.  Cathro,  32:  71,  128  N.  W. 
1025,  20  N.  D.  461. 

614.  A  decision  that  a  witness  was  comne- 


100 


APPEAL  A&D  ERROR,  VII.  i,  5. 


tent  to  testify  as  to  the  value  of  timber, 
wliich  is  not  so  manifestly  against  the 
weight  of  tlie  evidence  as  to  malie  the  rul- 
ing an  abuse  of  discretion,  docs  not  call 
for  a  reversal.  Farrell  v.  Minneapolis  & 
R.  R.  R.  Co.  45:  215,  141  N.  W.  491,  121 
Minn.  357. 

615.  The  question  whether  sufficient 
foundation  has  been  laid  to  enable  a  wit- 
ness to  testify  as  to  a  custom  is  a  matter 
which  the  trial  judge  must,  in  the  exercise 
of  a  sound  discretion,  pass  upon  as  a  ques- 
tion of  fact,  and  his  decision  will  not  be 
reversed  except  in  a  very  clear  and  strong 
case.  Krahn  v.  J.  L.  Owens  Co.  51:  650, 
145  N.  W.  626,  125  Minn.  33. 

616.  No  abuse  of  discretion  is  shown  by 
permitting  owners  of  real  estate  in  a  town, 
familiar  in  a  general  way  with  real-estate 
values  therein  and  with  premises  alleged 
to  have  been  injured  by  a  street  improve- 
ment, to  give  their  opinion  upon  the  ques- 
tion of  such  injury.  Parsons  v.  Litchfield 
County  Hospital,  16;  1038,  69  Atl.  352,  80 
Conn.  525. 

617.  The  question  of  the  effect  of  the  facts 
that  a  witness  has  a  pecuniary  interest 
in  the  result  of  the  suit  and  that  books 
containing  evidence  bearing  upon  the  ques- 
tion in  controversy  had  been  destroyed,  af- 
fecting, as  it  does,  the  weight  and  quality 
of  the  proofs,  is  for  the  trial  court.  Mis- 
souri P.  R.  Co.  V.  Continental  Nat.  Bank, 
17:  994,  111  S.  VV.  574,  212  Mo.  505. 
Hypothetical  questions. 

618.  The  decision  of  the  trial  court  on 
the  question  of  competency  of  hypothetical 
questions  is  not  to  be  disturbed  on  appeal, 
unless  it  not  only  appears  clearly  wrong, 
but  that,  had  the  error  not  occurred,  the  re- 
sult of  tlie  trial  might,  within  reasonable 
probabilities,  have  been  materially  more 
favorable  to  the  complaining  party.  Oborn 
V.  State,  31 :  966,  126  N.  W.  737,  143  Wis. 
249. 

Leading  questions. 

619.  The  appellate  court  will  not  reverse 
a  case  because  the  trial  judge  allowed  lead- 
ing questions  where  the  legal  discretion  in 
him  vested  was  not  abused.  McClain  v. 
Lewiston  Interstate  Fair  &  R.  Asso.  25: 
691,  104  Pac.  1015,  17  Idaho,  63. 

620.  The  credibility  of  an  expert  witness 
is  ordinarily  to  be  tested  by  his  cross-ex- 
amination, and,  though  it  may  be  proper 
to  do  so  by  the  testimony  of  another  ex- 
pert specially  qualified  in  respect  to  the 
subject-matter,  the  extent  to  which  the  ex- 
amination of  such  other  expert  may  be  car- 
ried rests,  as  in  the  case  of  cross-examina- 
tion, in  the  sound  discretion  of  the  court. 
State  V.  Minneapolis  Milk  Co.  51:  244,  144 
N.  W.  417,  124  Minn.  34. 
Cross-CT^amination. 

621.  The  matter  of  cross-examination  of 
a  witness  for  the  purpose  of  testing  his 
credibility  rests  in  the  discretion  of  the 
trial  court,  and  where  no  abuse  of  this  dis- 
cretion is  8^hown  there  is  no  reversible  error. 
State  V.  Findling,  49:  449,  144  N.  W.  142, 
123   Minn.  413. 

622.  A  reviewing  court  will  be  slow  in 
Digest  1-52  Ii.R.A.(N.S.) 


interfering  with  the  exercise  by  the  trial 
court  of  its  discretion  in  permitting  cross- 
examination  of  witnesses  which  is  alleged 
to  be  unreasonable  or  oppressive.  State  v. 
Waldron,  34:  809,  54  So.  1009,  128  La.  559. 

623.  Tlie  extent,  manner,  and  course  of 
the  cross-examination  of  a  witness,  even 
though  it  extends  to  matters  not  intjuired 
about  in  his  examination  in  chief,  is  very 
largely  within  the  control  of  the  court  in 
the  exercise  of  a  sound  discretion,  and  the 
exercise  of  that  discretion,  unless  flagrantly 
abused,  is  not  reviewable  on  appeal,  llar- 
rold  V.  Territory,  10:  604,  89  Pac.  202,  18 
Okla.  395. 

624.  It  is  within  the  discretion  of  the 
trial  court  to  refuse  to  compel  a  witness 
who  has  testified  to  a  testator's  incapacity 
to  state  wliich  of  several  circumstances  in- 
dicating insanity  was,  in  his  judgment,  the 
most  significant.  O'Dell  v.  Goff,  10:  989,  112 
N.  W.  736,  149  Mich.  152. 

625.  Limiting  the  cross-examination  of  a 
witness  recalled  by  the  state,  to  tlie  addi- 
tional testimony  given  by  him,  where  the 
whole  case  was  not  opened  up,  is  within 
the  discretion  of  the  court.  State  v.  Wolf- 
ley,  11:  87,  89  Pac.  1046,  75  Kan.  406. 

026.  The  reviewing  court  will  not  inter- 
fere with  the  allowance  by  the  trial  court  of 
the  examination  of  an  expert  witness  as  to 
the  amount  he  received  for  testifying,  in  he 
absence  of  anything  to  show  abuse  of  discre- 
tion. Shaughnessy  v.  Holt,  21:826,  86  N. 
E.  256,  236  111.  485. 
Physical    examination. 

627.  Tlie  court  has  discretionary  power, 
reviewable  on  appeal,  to  compel  the  plain- 
tiff in  an  action  for  personal  injuries  to 
submit  to  physical  examination.  Western 
Glass  Mfg.  Co.  V.  Schoeninger,  15:  663,  94 
Pac.  342,  42  Colo.  357. 

628.  It  is  an  abuse  of  discretion,  calling 
for  reversal,  for  a  court  to  refuse  to  order 
a  physical  examination  of  a  plaintiff  who 
alleges  permanent  injury,  where  the  acci- 
dent was  of  such  a  nature  as  to  produce  no 
visible  wound,  where  such  an  examination 
would  determine  whether  complete  recovery 
could  be  had,  and  where  the  amount  of  the 
verdict  indicates  that  the  jury  considered 
the  injuries  permanent,  although  the  appli- 
cation Avas  not  made  until  more  than  a 
year  after  the  accident.  Western  Glass 
Mfg.  Co.  V.  Schoeninger,  15:  65-',  94  Pac. 
342,  42   Colo.   357.  (Annotated) 

5.  Injunction;  receivers. 

(See   also   same   heading   in  Digest   L.R.A. 

.     1-10.) 

Ininnction. 

629.  The  granting  or  denying  of  a  tem- 
porary injunction  is  largely  within  the  dis- 
cretion of  the  trial  judge;  but  such  dis- 
cretion is  controlled  by  established  principles 
of  equity,  and  an  order  denying  an  injunc- 
tion will  be  reversed  if  the  allegations  of 
the  bill  are  sufficient,  and  the  evidence  in 
support  of  it  is  ample  to  warrant  the 
granting  of  the  injunction.    Taylor  v.  Flor- 


APPEAL  AND  ERROR,  VII.  i,  6. 


101 


ida  East  Coast  R.  Co.  i6:  307,  45  So.  574,  54 
Fla.   635. 

630.  Although,  upon  petition  for  writ  of 
error  or  appeal,  the  appellate  court  is  re- 
quired to  grant  the  writ  prayed  for  unless 
the  decision  is  clearly  right,  it  will  not 
overrule  a  decision  refusing  an  injunction 
unless  error  is  manifest.  U'ownsend  v.  Nor- 
folk R.  &  Light  Co.  4:87,  52  S.  E.  970,  105 
Va.  22. 

631.  Application  for  a  temporary  injunc- 
tion is  addressed  to  tlie  sound  discretion 
of  tlie  court,  to  be  guided  according  to  the 
circumstances  of  the  particular  case. 
Beidenkopf  v.  Des  Moines  L.  Ins.  Co.  46: 
290,    142   N.^  W.   434,   160   Iowa,   629. 

632.  The  discretion  of  a  trial  court  in 
granting  a  preliminary  injunction  will  not 
be  interfered  with  on  appeal  unless  it  clear- 
ly appears  to  have  been  abused.  Miller  & 
Lur  V.  Madera  Canal  &  Irrig.  Co.  22:  391, 
99  Pac.  502,  155  Cal.  59. 

633.  The  granting  ot  a  preliminary  in- 
junction rests  in  the  discretion  of  the  trial 
court,  not  in  its  arbitrarj',  whimsical  will, 
but  in  its  sound  judicial  discretion,  in- 
formed and  guided  by  the  established  prin- 
ciples, rules,  and  practice  of  equity  juris- 
prudence; and  where  the  court  has  not  de- 
parted from  them,  its  injunctional  orders 
may  not  be  reversed  without  clear  proof  of 
an  abuse  of  its  discretion.  Kryptok  Co.  v. 
Stead  Lens  Co.  39:  i,  190  Fed.  767,  111  C. 
C.  A.  495. 

634.  Where  the  evidence  is  conflicting  on 
material  questions  of  fact,  and  it  does  not 
so  clearly  appear  that  a  contract  sought 
to  be  enforced  by  a  cor,poration  is  ultra 
vires  as  to  require  it  to  be  so  declared  as 
a  matter  of  law,  the  judgment  of  the  trial 
court  refusing  to  grant  an  interlocutory 
injunction  to  restrain  the  corporation  from 
proceeding  under  such  contract,  made  in 
the  exercise  of  its  discretion,  will  not  be 
reversed  upon  appeal.  Kohlruso  v.  Zachry, 
46:  72,  77  S.  E.  812,  139  Ga.  025. 

635.  The  dissolution  of  a  preliminary  in- 
junction will  not  be  disturbed  on  appeal 
unless  the  record  shows  an  abuse  of  dis- 
cretion on  the  part  of  the  trial  court. 
Clark  v.  Deadwood,  18:  402,  117  N.  W.  131, 
22  S.  D.  233. 

635a.  It  is  an  abuse  of  discretion  for  the 
trial  court  to  refuse  to  continue  a  tempo- 
rary injunction  to  restrain  trespassing  on 
plaintiff's  dooryard,  destroying  his  trees, 
tearing  up  the  earth,  and  disturbing  the 
peace  and  comfort  of  the  family,  in  a  suit 
to  enjoin  such  acts,  which  alleges  irreme- 
diable injury  and  absence  of  remedy  at  law, 
under  a  statute  authorizing  the  issuance 
of  such  injunction  to  restrain  an  act  com- 
plained of,  which,  if  continued  during  the 
litigation,  would  produce  injury  to  plain- 
tiff, where  it  appears  from  the  complaint 
that  plaintiff  is  entitled  to  the  judgment 
demanded,  which  is  the  permanent  restraint 
of  the  act.  De  Pauw  v.  Oxley,  13:  173,  100 
N.  W.  1028,  122  Wis.  656. 

636.  There  is  no  abuse  of  discretion  in  al- 
lowing a  preliminary  injunction  in  an  ac- 
tion to  restrain  the  diversion  of  water  from 
Digest   1-52  I<.R.A.(N.S.) 


a  river  into  a  reservoir  by  one  who  claims 
a  prescriptive  right  to  water  from  the  river, 
which  is  involved  in  another  suit,  insti- 
tuted before  the  diversion  into  the  reser- 
voir began,  which  injunction  merely  stops 
the  diversion  of  all  water  exceeding  a  cer- 
tain amount,  which  is  in  excess  of  the  right 
to  which  the  evidence  shows  that  the  pre- 
scriptive right  extends.  Miller  &  Lux  v. 
Madera  Canal  &  Irrig.  Co.  22:  391,  99  Pac. 
502,  155  Cal.  59. 

637.  Under  a  statute  authorizing  the  su- 
preme court  to  reverse,  vacate,  or  niodify 
an  order  that  grants  or  refuses  a  contin- 
uance, discharges,  vacates,  or  modifies  pro- 
visional remedies  or  grants,  or  refuses  to 
vacate  or  modify  an  injunction,  an  order 
refusing  a  temporary  injunction  may  be 
reviewed  by  the  supreme  court  upon  appeal. 
Perry  Public  Library  Asso.  v.  Lobsitz,  45: 
368,  130  Pac.  919,  35  Okla.  576. 

638.  Where  it  appears  in  a  petition  for 
an  injunction  that  the  plaintiffs  are  en- 
titled to  the  relief  demanded,  and  such  re- 
lief, or  any  part  thereof,  consists  in  re- 
straining the  commission  or  continuance 
of  some  act,  the  commission  or  omission 
of  which  will  produce  injury  to  the  plain- 
tiffs, and  where  only  questions  of  law  are 
presented  by  the  petition  upon  its  face  or 
by  the  evidence,  the  refusal  to  grant  the  in- 
junction is  an  abuse  of  discretion  which  t)ie 
appellate  court  will  review  and  correct. 
Perry  Public  Library  Asso.  v.  Lobsitz,  45: 
368,  130  Pac.  919,  35  Okla.  576. 

6.  Conduct  of  trial;  jury. 

(See   also   same   heading   in  Digest   L.R.A, 
1-70.) 

As   to   withdrawal    of   jury,   generally,    see 
Teial,  I.  e. 

639.  An  abuse  of  discretion  in  refusing 
to  compel  a  production  in  court  of  articles 
alleged  to  have  been  injured  by  another's 
negligence  is  not  shown,  where  defendant's 
witnesses  have  been  permitted  to  examine 
them,  and  it  is  not  clear  that  the  jury  would 
have  been  aided  by  personal  examination  of 
them.  Withey  v.  Pere  Marquette  R.  Co. 
i:  352,  104  N.  W.  773,   141   Mich.  412. 

640.  No  abuse  of  discretion  is  shown  on 
the  part  of  the  trial  court  in  limiting  the 
counsel  of  one  accused  of  violating  an  ordi- 
nance forbidding  the  sale  of  watered  milk, 
to  fifteen  minutes  to  argue  the  case  to  the 
jury.  Seattle  v.  Erickson,  25:  1027,  104  Pac. 
1128,  55  Wash.  675.  (Annotated) 

641.  Limiting  to  thirty  minutes  the  time 
allowed  counsel  to  present  the  defense  in  a 
murder  case  to  the  jury  is  not  an  abuse  of 
discretion  where  the  evidence  brought  out 
no  complicated  circumstances  or  facts  ne- 
cessitating detailed  or  elaborate  explana- 
tion. Lucas  v.  Com.  42:  209,  149  S.  W.  861, 
149  Ky.  495.  (Annotated) 

642.  The  granting  of  an  order  directing 
the  reference  of  a  case  is  within  the  sound 
discretion  of  the  trial  court,  and  will  not 
be  inquired  into  here,  unless  it  affu'matively 


103 


APPEAL  AXD  ERROR,  VII.  i,  C. 


appears  that  there  was  a  gross  abuse  of 
discretion.  Johnson  v.  Jones,  48:  547,  135 
Pac.  12,  39  Okla.  323. 

643.  Whether  or  not  questions  of  law 
arising  on  the  trial  of  a  civil  case  should  be 
argued  in  the  presence  of  the  jury  rests 
largely  in  the  discretion  of  the  presiding 
judge,  there  being  no  rule  of  law  which  re- 
quires the  jury  to  be  sent  out  while  such 
argument  is  in  progress,  or  which  declares 
that,  in  the  course  of  an  argument  to  tlie 
court,  the  law  should  not  be  read  in  the 
hearing  of  the  jury.  Slaughter  v.  Heath, 
37:  I,  57  S.  E.  69,  127  Ga.  747. 
j  644.  The  refusal  of  the  judge  to  permit 
the  filing  of  a  claim  for  trial  by  jury  of  the 
amount  for  which  execution  shall  issue, 
after  verdict,  is  not  the  subject  of  excep- 
tion, Graham  v,  Middleby,  43:977,  100  N. 
lE.  750,  213  Mass.  437. 

I  645.  It  is  within  the  discretion  of  the 
court  to  give,  or  refuse  to  submit,  to  the 
jury  special  findings.  Maxson  v.  J.  I.  Case 
Threshing  Mach.  Co.  16:  963,  116  N.  W.  281, 
81  Neb.  546. 

I  646.  It  being  competent,  in  the  absence  of 
statute,  for  a  court  to  make  a  rule  requiring 
requests  for  special  findings  to  be  made  at 
the  close  of  the  testimony,  where  a  court 
has  made  such  a  rule,  and  attorneys  famil- 
iar therewith  make  a  request  for  fifty-two 
special  findings  after  the  instructions  to 
the  jury,  the  refusal  of  the  court  to  submit 
the  questions  asked  is  not  such  an  abuse 
of  its  discretion  as  calls  for  a  reversal  of 
the  judgment.  Lehnen  v.  Hines,  42:  830, 
127  Pac.  612,  88  Kan.  58. 

647.  It  is  not  an  abuse  of  discretion  in 
:the  trial  court  to  submit  the  question  of 
(damages  to  be  awarded  the  various  abut- 
iting  owners  for  the  closing  of  an  alley  to 

one  jurj',  where  the  questions  in  all  the 
cases  are  the  same  except  the  mere  question 
of  the  amount  of  damages  to  which  each  is 
entitled.  Henderson  v.  Lexington,  22:  20, 
111  S.  W.  318,  132  Ky.  390, 
Separation  of  jury. 

648.  A  statutory  provision  that  the  court, 
in  its  discretion,  may,  at  any  time  before 
final  submission  of  a  criminal  cause,  permit 
the  jury  to  separate,  leaves  the  question 
of  keeping  the  jury  together  during  the 
trial  of  a  capital  case  to  the  court's  discre- 
tion. Armstrong  v.  State,  24:  776,  103  Pac. 
658,  2  Okla.  Crim.  Rep.  567. 

i  649.  The  Oklahoma  criminal  court  of  ap- 
peals will  not  review  the  action  of  a  trial 
court  in  permitting  the  jury  in  a  capital 
case  to  separate  before  final  submission  of 
the  cause,  unless  it  affirmatively  appears 
from  the  record  that  there  was  sucli  an 
abuse  of  discretion  as  denied  the  defendant 
a  fair  and  impartial  trial,  as  the  statute 
in  plain  and  unambiguous  terms  confers  a 
discretionary  power  upon  the  trial  court  in 
regard  thereto.  Armstrong  v.  State,  24: 
776,  103  Pac.  658,  2  Okla.  Crim.  Rep.  567. 
Selection  af  jury. 

Prejudicial  error  in  overruling  challenge  to 
juror,  see  infra,  1493. 
660.  The  limitation  of  inquiries  addressed 
Digest  1-52  L.R.A.(N.S.) 


to  jurors  during  the  examination  as  to 
their  competency  is  committed  to  the  sound 
discretion  of  the  trial  court,  and  its  exer- 
cise of  the  right  cannot  be  complained  of 
in  the  absence  of  an  abuse  of  discretion. 
Western  Furniture  &  Mfg.  Co.  v.  Bloom,  11: 
225,  90  Pac.  821,  76  Kan.  127. 
Election  lietvreen  counts. 
As  to  election  between  counts  generally,  see 
Tbial,  I.  b. 

651.  The  question  of  granting  or  overrul- 
ing a  motion  to  require  an  election  between 
a  count  upon  an  express  contract  and  a 
count  upon  quantum  meruit,  in  a  suit  on  ac- 
count for  legal  services  rendered,  is  addressed 
to  the  discretion  of  the  court,  Ivhere  there 
is  more  or  less  uncertainty  as  to  the  grounds 
for  recovery.  Mellon  v.  Fulton,  19:  960,  98 
Pac.  911,  22  Okla.  636. 

Order  of  proof. 

As  to  order  of  proof  generally,  see  Tbiai,, 
32-40. 

652.  A  judgment  will  not  be  reversed  be- 
cause of  the  order  in  which  the  proof  was 
admitted,  in  the  absence  of  anything  to  show 
abuse  of  discretion  on  the  part  of  the  trial 
court.  First  Nat.  Bank  v.  McCuUough,  17: 
1 105,  93  Pac.  3G6,  50  Or.  508. 

653.  Tlie  trial  court  is  authorized  to  regu- 
late the  order  of  the  introduction  of  evi- 
dence, and  its  discretion  in  this  matter  will 
only  be  interfered  with  by  an  appellate  court 
when  a  clear  abuse  thereof  is  made  to  ap- 
pear. Pittman  v.  State,  8:  509,  41  So.  385, 
51  Fla.  94. 

654.  A  judgment  will  not  be  reversed  on 
the  ground  that  evidence  was  allowed  in 
rebuttal  that  should  have  been  offered  in 
chief,  unless  a  manifest  abuse  of  discretion 
appears.  Mendel  v.  Miller,  7:  1184,  56  S.  E. 
88,  126  Ga.  834. 

655.  Permitting  proof  of  former  convic- 
tions on  the  trial  of  one  accused  of  crime 
before  identifying  the  person  convicted  with 
the  accused  is  not  error,  since  the  order  of 
|>r()of  is  within  the  discretion  of  the  court. 
State  v.  Smith,  4:  539,  106  N.  W.  187,  129 
Iowa,  709. 

656.  In  the  absence  of  abuse  of  discre- 
tion, the  appellate  court  will  not  disturb 
a  judgment  because  of  the  order  in  which 
the  trial  court  permitted  evidence  to  be 
introduced.  Roberson  v.  Ellis,  35:  979,  114 
Pac.   100,  58  Or.  219. 

Remarks  of  counsel. 

As   to   argument   of   counsel   generally,   see 

Trial,  I.  d, 
057.  Whether  a  county  attorney  is  guilty 
of  misconduct  in  delivering  an  interview  of 
an   inflammatory  nature  to  newspapers  at 
the  close  of  the  trial  of  those  charged  with 
combining  to  raise  the  price  of  articles  in 
violation  of  a  statute  is  peculiarly  one  for 
the  trial  court.     State  v.  Minneapolis  Milk 
Co.  51:  244,  144  N.  W.  417,  124  Minn.  34. 
Reopening  case. 
As  to  order  of  proof,  generally,  see  Trial, 

31-40, 
668,  No  exception  lies  to  the  reopening 
of  a  case  for  the  taking  of  additional  teati- 


APPEAL  AND  EPvROR,  VII.  i,  7. 


103 


mony.      Wells   v.   Wells,   35:  561,   95   N.   E. 
845,  209  Mass.  282. 

650.  The  reopening  of  a  case  to  receive 
additional  evidence  is  a  matter  within  the 
discretion  of  the  trial  court,  which  will  not 
be  interfered  with  on  appeal  except  for 
abuse.  Central  Nat.  Bank  v.  National  Met- 
ropolitan Bank,  17:  520,  31  App.  D.  C.  391. 
Change  of  venue. 

660.  An  application  for  a  change  of 
venue  is  addressed  to  the  discretion  of  the 
trial  court,  and  the  ruling  of  the  court 
thereon  will  not  be  reviewed  upon  appeal  in 
the  absence  of  a  showing  that  the  court 
abused  its  discretion.  Edwards  v.  State, 
44:  701,  131  Pac.  956,  9  Okla.  Crim.  Rep. 
306. 

661.  The  supreme  court  will  reverse  the 
refusal  of  the  trial  court  to  grant  a  change 
of  venue  in  a  prosecution  for  murder,  where 
an  abuse  of  discretion  plainly  appears. 
Shipp  V.  Com.  10:  335,  99  S.  W.  945,  124 
Ky.  643. 

662.  Denial  of  a  change  of  venue  for  pre- 
judice is  not  a  ground  for  reversal  unless  it 
clearly  appears  that  the  trial  court  abused 
its  discretion,  which  does  not  appear  when 
a  satisfactory  jury  was  obtained  after  the 
examination  of  twenty-eight  men  only 
eight  of  whom  were  excused  for  cause. 
State  v.  Herold,  40:  1213,  123  Pac.  1076,  68 
Wash.  654. 

7.  Vacation  or  suspension  of  judgment 
or  verdict;  new  trial. 

(See   also   same   heading   in   Digest   L.R.A. 

1-yo.) 

See  also  supra,  201,  502. 

Vacation   of  jndgment. 

See  also  supra,  436. 

663.  There  is  no  abuse  of  discretion  in  re- 
fusing to  set  aside  a  default  which  is  not 
entered  until  sixteen  months  after  service 
and  filing  of  the  complaint,  and  the  motion 
to  set  which  aside  is  not  made  until  nearly 
eight  months  thereafter,  where  the  motion 
and  affidavit  in  support  thereof  did  not  show 
that  the  negligence  was  excusable,  or  that 
there  was  a  meritorious  defense  to  the  cause 
of  action.  Bannerot  v.  McClure,  12:  126, 
90  Pac.  70,  39  Colo.  472. 

664.  Where  an  application  is  made  to  set 
aside  a  judgment  entered  by  default  and 
permit  an  answer  to  be  filed,  if  the  facts 
disclosed  by  the  showing  involve  purely  a 
question  of  law,  it  will  involve  no  discretion 
on  the  part  of  the  court,  and  must  be  de- 
termined solely  upon  the  question  of  law 
raised;  but  where  it  presents  a  question  of 
fact  as  to  the  diligence  of  the  party,  or  his 
having  been  taken  by  surprise,  or  being 
mistaken  in  matter  of  fact,  the  application 
will  appeal  to  the  discretion  of  the  court; 
and  an  appellate  court  will  not  disturb  the 
exercise  of  that  discretion,  unless  a  clear 
abuse  thereof  is  shown.  Humphreys  v. 
Idaho  Gold  Mines  Development  Co.  40: 
817,  120  Pac.  823,  21  Idaho,  126. 

665.  On  appeal  from  an  order  refusing  to 
Digest   1-52  KR.A.(N.S.) 


open  a  default  and  permit  a  defense  to  be 
made,  the  reviewing  court  will  not  only  in- 
quire as  to  whether  the  discretion  of  the 
trial  court  in  denying  the  application  has 
been  soundly  exercised,  but  will  examine 
the  facts  for  the  purpose  of  determining 
whether  or  not  the  default  should  not,  un- 
der the  rule  of  liberal  construction,  be  set 
aside  and  a  defense  upon  the  merits  per- 
mitted, even  though  the  discretion  of  the 
trial  court  does  not  seem  to  have  been  exer- 
cised intemperately,  arbitrarily,  or  in  a 
manner  palpably  erroneous.  Citizens'  Nat. 
Bank  v.  Branden,  27:  858,  126  N.  W.  102, 
19  N.  D.  489. 

666.  On  refusal  to  open  contradictory 
evidence,  a  judgment  by  default  entered 
for  failure  of  defendant  to  appear  after 
regular  assignment  of  the  case  for  trial 
will  not  be  disturbed  on  appeal,  in  the 
absence  of  anything  to  show  abuse  of  dis- 
cretion. Farmers  &  M.  Ins.  Co.  v.  Cuff, 
35:  892,  116  Pac.  435,  29  Okla.  106. 
Suspension  of  judgment. 

667.  Tlie  question  whether  or  not  judg- 
ment should  be  suspended  on  a  plea  of 
guilty  by  an  accomplice,  under  an  agree- 
ment or  understanding  with  the  prosecut- 
ing officer,  approved  by  0¥  known  to  the 
court,  that  he  should  be  immune  from  fur- 
ther .prosecution,  who  testifies  fully  and 
truthfully  as  to  the  whole  matter  charged, 
is  not  so  far  within  the  discretion  of  the 
trial  court  that  his  refusal  to  suspend  it 
is  not  subject  to  review.  Lowe  v.  State, 
24:  439,  73  Atl.  637,  111  Md.  1. 

Nevir  trial. 

668.  A  ruling  on  a  motion  for  a  new 
trial  on  account  of  the  bias  and  prejudice 
of  the  jury,  unsupported  by  any  evidence 
except  the  evidence  on  issues  tried,  is  dis- 
cretionary with  the  trial  court,  and  is  not 
reviewable  by  a  Federal  appellate  court  in 
the  absence  of  proof  of  an  abuse  of  the 
discretion.  Thompkins  v.  Missouri,  K.  &  T. 
R.  Co.  52:  791,  211  Fed.  391,  128  C.  C.  A. 
1. 

669.  The  granting  of  a  new  trial  will  not 
be  interfered  with  on  appeal,  unless  the  evi- 
dence plainly  and  palpably  supports  the 
verdict  rendered.  Hervey  v.  Hart,  9:  213,  42 
So.  1013,  149  Ala.  604. 

670.  Error  will  not  lie  to  a  ruling  on  mo- 
tion for  new  trial  where  such  motion  is 
addressed  to  the  legal  discretion  of  the 
trial  court.  Philadelphia,  B.  &  W.  R.  Co. 
V,  Gatta,  47:  932,  85  Atl.  721,  —  Del.  — . 

671.  It  is  not  error  to  refuse  an  applica- 
tion for  a  new  trial  unless  such  refusal  is 
in  some  way  prejudicial  to  the  substantial 
rights  of  the  applicant.  State  v.  Shaw,  21: 
27,  100  Pac.  78,  79  Kan.  396. 

672.  The  supreme  court  should  not  re- 
verse the  action  of  the  trial  court  and 
grant  a  new  trial,  on  the  ground  that  the 
verdict  is  not  supported  by  the  evidence,  or 
that  the  damages  are  excessive,  unless  the 
evidence  is  so  manifestly  and  palpably 
against  the  verdict  that  the  trial  court 
violated  a  clear  legal  right  of  defendant 
and  abused  its  discretion  in  refusing  to 
grant  a  new  trial.    Maroney  v.  Minneapolis 


104 


APPEAL  AND  ERROR,  VII.  j,  1. 


&  St.  L.  R.  Co.  49:  756,  144  N.  W.  149,  123 
Minn.  480. 

673.  Denial  of  a  new  trial  for  excessive 
allowance  of  damages  will  not  be  reversed 
on  appeal,  if  one  new  trial  was  awarded 
on  such  ground,  and  the  same  judge,  after 
careful  consideration,  refused  to  interfere 
with  the  second  verdict.  Southern  P.  Co.  v. 
Hogan,  29:  813,   108   Pac.  240,   13  Ariz.  34. 

674.  Whether  a  new  trial  upon  the  ground 
of  excessive  or  inadequate  damages  should 
be  granted  or  refused,  or  whether  the  ver- 
dict should  be  reduced  where  excessive,  rests 
in  the  sound  judicial  discretion  of  the  trial 
court,  in  reviewing  which  this  court  will 
be  guided  by  the  general  rule  applicable 
to  other  discretionary  orders.  Mohr  v. 
Williams,  1 :  439,  104  N.  W.  12,  95  Minn.  261. 

675.  The  discretion  of  the  trial  court  in 
granting  a  new  trial  for  excess  of  damages 
for  a  sprained  ankle,  the  effect  of  which 
has  extended  over  a  period  of  two  years, 
will  not  be  interfered  with  on  appeal,  where 
the  evidence  is  conflicting  as  to  the  pain- 
ful and  disabling  quality  of  the  injury.  De- 
vine  V.  St.  Louis,  51:  860,  165  S.  W.  1014, 
257  Mo.  470. 

676.  The  rule  that  the  granting  of  a  new 
trial  cannot  be  reversed  except  for  abuse  of 
discretion  does  not  apply  when  the  entire 
record  shows  that  the  evidence  necessarily, 
and  without  conflict,  sustains  the  verdict  or 
finding,  and  that  it  admits  of  no  other  con- 
clusion. Galena  Nat.  Bank  v.  Ripley,  26: 
993,  104  Pac.  807,  55  Wash.  615. 

677.  It  is  error  to  deny  a  new  trial  where 
nominal  damages  only  have  been  granted, 
to  a  woman  against  one  who,  after  notice 
to  refrain  from  doing  so,  sold  intoxicating 
liquors  to  her  husband,  which  resulted  in 
his  assaulting  her,  destroying  her  property, 
and  materially  damaging  her  means  of  sup- 
port, and  humiliating  and  disgracing  her. 
Fleming  v.  Gemein,  39:  315,  134  N.  W.  969, 
168  Mich.  541. 

678.  It  is  reversible  error  to  refuse  to 
grant  a  new  trial  where  it  is  shown  that  the 
verdict  of  the  Jury  was  a  quotient  verdict. 
International  Agricultural  Corp.  v.  Aber- 
crombie,  49:  415,  63  So.  549,  184  Ala.  244. 

679.  It  is  not  an  abuse  of  discretion  for 
the  district  court  to  refuse  a  new  trial  in 
a  misdemeanor  case  on  account  of  the  de- 
fendant's former  conviction  of  the  same  of- 
fense, when  such  conviction  was  first 
brought  to  its  attention  by  the  motion  for 
a  new  trial.  State  v.  Durein,  15:  go8,  78 
Pac.  152,  70  Kan.   1. 

680.  There  is  no  abuse  of  discretion  on  the 
part  of  the  trial  court  in  overruling  a  mo- 
tion for  new  trial  in  a  criminal  case  which 
is  not  filed  until  eighty  days  after  rendition 
of  the  judgment,  where  the  statute  requires 
it  to  be  filed  within  thirty  days  from  the 
date  of  the  verdict.  Niswonger  v.  State, 
46:  I,  102  N.  E.  135,  179  Ind.  653. 

681.  An  order  of  the  district  court  setting 
aside  a  verdict  for  defendant  in  a  libel 
suit,  and  granting  plaintiff's  motion  for  a 
new  trial  on  the  ground  that  the  verdict 
was  not  sustained  by  the  evidence,  will 
not  be  reversed  by  the  supreme  court,  al- 
Digest  1-52  I<.R.A.(N.S.) 


though  it  is  probable,  in  view  of  the  evi- 
dence, that  plaintiff  can  recover  1.0  iiKire 
than  nominal  damages.  Kramer  v.  Perkins, 
15:  1141,  113  N.  W.  1062,  102  Minn.  455. 

682.  Upon  the  trial  of  an  action  to  fore- 
close a  security  deed  as  an  equitable  mort- 
gage, where  the  defense  is  that  the  deed  is 
void  for  usury,  a  motion  for  a  new  trial 
after  verdict  for  plaintiffs  is  properly  over- 
ruled where  the  evidence  as  to  usury  was 
conflicting  and  was  not  such  as  to  demand 
a  finding  that  the  deed  was  void  for  usury. 
Purser  v.  Thompson,  22:  571,  64  S.  E.  75, 
132  Ga.  280. 

683.  The  question  passed  on  upon  a  mo- 
tion for  a  new  trial  after  the  direction  of 
a  verdict  for  defendant  because  of  the  in- 
sufficiency of  the  evidence  does  not  involve 
an  exercise  of  discretion,  but  is  a  question 
of  law;  and  an  order  granting  a  new  trial 
may  therefore  be  set  aside  on  appeal.  H>ib- 
bard  v,  Bartholomew,  49:  443,  144  N.  W.  13, 
103  Iowa,  58. 

684.  There  is  no  abuse  of  discretion  in  re- 
fusing a  new  trial  because  witnesses  who 
changed  their  testimony  on  a  second  trial 
indicate,  by  affidavit,  their  willingness  to 
return  to  that  given  at  the  first  trial,  where 
their  former  testimony  was  before  the  jury 
at  the  second  trial.  Olson  v.  Gill  Home 
Invest.  Co.  27:  884,  108  Pac.  140,  58  Wash. 
151. 

Bill  of  revie\ir. 

085.  The  refusal  of  a  bill  of  review  be- 
cause of  alleged  newly  discovered  evidence 
will  not  be  reversed  on  appeal  unless  there 
has  been  an  abuse  of  the  fair  discretionary 
power  with  which  the  trial  court  is  invested 
in  the  matter.  Safe  Deposit  &  T.  Co.  v. 
Gittings,  4:  865,  62  Atl.  1030,  102  Md.  456. 

686.  There  is  no  abuse  of  discretion  in 
refusing  to  permit  the  filing  of  a  bill  to  re- 
view a  decree  settling  the  credits  to  be  al- 
lowed on  a  note  given  to  a  bank  for  money 
loaned  to  settle  with  the  maker's  creditors, 
because  of  newly  discovered  evidence  con- 
sisting of  items  delivered  to  the  bank  for 
credit,  but  not  credited,  where  the  items 
were  known  to  petitioner,  or  by  the  exer- 
cise of  reasonable  diligence  could  have  been 
discovered,  before  the  rendition  of  the  de- 
cree, and  which  were  merely  overlooked  or 
forgotten.  Smith  v.  Rucker,  30:  1030,  129 
S.  W.  1079,  95  Ark.  517.  (Annotated) 

j.  Questions  not  raised  below. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A, 
1-70.) 

Necessity  and  sufficiency  of  exceptions  be- 
low, see  supra,   V. 

Mode  of  raising  objection  below,  see  supra, 
V.    d. 

See  also  supra,  354. 

687.  Questions  not  presented  to  the  trial 
court  cannot  be  considered  on  appeal.  Rip- 
py  V.  Southern  R.  Co.  ai:  601,  61  S.  E.  1010, 
80  S.  0.  539. 


APPEAL  AND  ERROR,  VII.  j,  1. 


105 


688.  The  appellate  court  will  not  consider 
questions  not  passed  upon  by  the  trial 
court.  Ex  parte  Savings  Bank  of  Rock 
Hill,  5:  520,  53  S.  E.  614,  73  S.  C.  393. 

689.  The  Kansas  supreme  court  will  de- 
cline to  consider  a  question  presented  in  a 
brief,  if  it  appears  from  the  record  that 
such  question  was  not  presented  to  the 
district  court.  St.  Louis  &  S.  F.  R.  Co.  v. 
Beets,  10:  571,  89  Pac.  683,  75  Kan.  295. 

690.  The  appellate  court  will  not  pass 
upon  the  question  whether  or  not  a  certain 
fact  has  been  established  by  all  the  evidence 
in  the  case  where  it  was  not  presented  to 
the  trial  court.  First  Nat.  Bank  v.  Mc- 
Cullough,   17:  1 105,  93  Pac.  366,  50  Or,  508. 

691.  A  judgment  based  on  an  erroneous 
ruling  to  which  exception  was  taken  cannot 
be  sustained  upon  a  ground  not  called  to 
the  attention  of  the  nisi  prius  court.  Gil- 
son  V.  Nesson,  17:  1208,  84  N.  E.  854,  1-98 
Mass.  598. 

692.  A  bill  of  exceptions  attested  by  by- 
standers, as  provided  by  statute,  upon  the 
refusal  of  the  judge  to  do  so  because  he 
does  not  remember  the  facts  set  out,  which 
is  not  contested  in  the  trial  court,  cannot  be 
contested  upon  affidavit  in  support  of  a  mo- 
tion for  rehearing  in  the  appellate  court. 
Hemphill  v.  State,  51:  914,  165  S.  W.  462, 
—  Tex.  Grim.  Rep.  — . 

693.  A  petition  to  amend  an  insufficient 
affidavit  for  attachment  cannot  be  present- 
ed for  the  first  time  to  the  appellate  court. 
Taylor  v.  Sutherlin-Meade  Tobacco  Co.  14: 
1 135,  60  S.  E.  132,  107  Va.  787. 

694.  The  question  whether  or  not  articles 
for  the  loss  of  which  an  action  is  brought 
against  a  carrier  were  baggage  cannot  be 
raised  for  the  first  time  on  appeal.  Kansas 
City  S.  R.  Co.  V.  Skinner,  21:  850,  113  S.  W. 
1019,  88  Ark.  189. 

695.  In  a  suit  by  the  receiver  of  an  in- 
solvent corporation  to  enforce  the  liability 
of  stockholders  for  unpaid  subscriptions 
to  the  extent  required  for  the  payment  of 
the  claims  of  certain  creditors,  an  objection 
that  a  defendant  stockholder  who  was  also 
a  creditor  of  the  corporation  had  no  status 
as  a  party  in  the  court  below,  such  as  would 
entitle  him  to  appeal  from  so  much  of  the 
decree  as  denied  relief  to  the  receiver  in 
respect  to  his  claim,  cannot  be  first  raised 
on  appeal.  Easton  Nat.  Bank  v.  American 
Brick  &  T.  Co.  (N.  J.  Err.  &  App.)  8:  271, 
64  Atl.  917,  70  N.  J.  Eq.  732. 

696.  A  final  decree  in  a  suit  in  equity  will 
not  be  reversed  by  the  supreme  court  at  the 
instance  of  the  plaintiffs  because  at  the 
time  of  its  entry  a  rule  was  pending  and 
undetermined  against  the  defendants  for 
violating  a  temporary  injunction  awarded 
in  the  suit,  when  it  appears  that  the  liear- 
ing  of  the  rule  had,  previous  to  the  final 
hearing,  been  continued  by  an  order  en- 
tered by  consent  of  both  parties,  and  that 
the  final  hearing  was  on  motion  of  the 
plaintiffs  to  perpetuate  the  injunction,  and 
that  no  objection  to  such  final  hearing  was 
made  by  tliem  in  the  court  below.  Pence 
v.  Carney,  6:  266,  52  S.  E.  702,  58  W.  Va.  I 
296. 

Digest  1-52  L.R.A.(N.S.) 


697.  A  foreign  insurance  company  which 
has  been  refused  a  license  because  it  did 
not  possess  the  required  amount  of  paid- 
up  capital  stock  cannot  for  tlie  first  time, 
upon  appeal,  show  that  it  had  supplied  the 
deficiency  with  properly  invested  surplus 
and  undivided  profits.  Union  P.  L.  Ins.  Co. 
V.  Ferguson,  43:  958,  129  Pac.  529,  64  Or. 
395. 

698.  A  decree  granting  to  the  appellants, 
beneficiaries  in  an  insurance  policy,  reim- 
bursement for  dues  and  assessments  paid  by 
them,  will  not  be  altered  on  appeal,  where, 
although  they  are  not  entitled  to  reimburse- 
ment, no  objection  of  that  character  was 
pressed,  and  no  cross-errors  were  assigned 
on  appeal.  Ptacek  v.  Pisa,  14:  537,  83  N. 
E.  221,  231  111.  522. 

699.  Proceedings  to  separate  items  relat- 
ing to  the  defense  of  the  suit  from  those  re- 
lating to  the  dissolution  of  the  injunction 
must  be  taken  in  the  trial  court  in  a  pro- 
ceeding to  hold  the  injunction  bond  liable 
for  attorneys'  fees  expended  in  the  injunc- 
tion suit,  in  order  to  secure  consideration 
on  appeal.  Littleton  v.  Burgess,  16:49,  91 
Pac.  832,  16  Wyo.  58. 

700.  The  appellate  court  cannot,  in  the 
first  instance,  hear  and  determine  matters 
involved  in  the  disposal  of  the  proceeds  of 
property  sold  under  stipulation,  by  a  re- 
ceiver appointed  in  proceedings  in  aid  of 
execution,  and  the  settlement  of  the  ac- 
counts of  the  receiver  in  such  matters,  and 
in  the  operation  of  the  property  in  his  pos- 
session. First  Nat.  Bank  v.  Cook,  2:  1012, 
76  Pac.  674,  12  Wyo.  492. 

701.  The  appellate  court  cannot  adjudi- 
cate the  question  of  liability  of  a  surety 
on  a  replevin  bond  given  to  regain  posses- 
sion of  attached  property,  upon  appeal  from 
a  judgment  setting  aside  the  attachment, 
where  the  amount  of  his  liability  was  left 
undetermined  by  the  trial  court,  and  no 
judgment  was  entered  upon  the  question  of 
such  liability.  Stonega  Coke  &  Coal  Co.  v. 
Southern  Steel  Co.  31:  278,  131  S.  W.  988, 
123  Tenn.  428. 

702.  A  railroad  company  cannot,  upon  a 
review  of  an  order  of  the  state  corporation 
commission  by  the  supreme  court,  object 
for  the  first  time  in  that  court  to  the  failure 
of  the  commission  to  endeavor  by  mediation 
to  effect  a  settlement  of  the  grievances  com- 
plained of,  as  required  by  statute.  Seward 
V.  Denver  &  R.  G.  R.  Co.  46:  242,  131  Pac. 
980,  17  N.  M.  557. 

703.  The  defense  that  some  of  several 
persons  sued  jointly  for  turning  surface 
water  onto  another's  property  did  not  par- 
ticipate in  the  wrong  cannot  be  raised  for 
the  first  time  on  appeal.  Martin  v.  Schwert- 
ley,  40:  160,  136  N.  W.  218,  155  Iowa,  347. 
Sending  case  to  referee. 

704.  The  sending  of  a  case  to  a  referee 
for  trial  cannot  be  questioned  for  the  first 
time  on  appeal.  West  v.  Fry,  11:  1191,  112 
W.  184,  134  Iowa,  675. 

Remarks  of  counsel. 

Sufficiency    of    exception    or    objection,    see 

supra,   303. 
Necessity  for  exceptions,  see  supra,   343. 


106 


APPEAL  AND  ERROR,  VII.  j,  2,  3. 


705.  Objections  to  the  time  of  making 
statements  as  to  what  counsel  intended  to 
prove  cannot  be  raised  for  the  first  time  on 
appeal.  Houren  v.  Chicago,  M.  &  St.  P.  R. 
Co.  2o:iiio,  86  N.  E.  611,  236  111.  620. 

2.  Jurisdiction. 

(See  also  same   heading   in   Digest   L.R.A. 
1-70.) 

706.  The  question  of  jurisdiction  may  be 
raised  first  on  appeal.  Hanger  v.  Com.  14: 
683,  60  S.  E.  67,  107  Va.  872. 

707.  Jurisdictional  matters  may  be  raised 
for  the  first  time  in  the  appellate  court. 
Ex  parte  Talley,  31:805,  112  Pac.  36,  4 
Okla.  Crim.  Rep.  398. 

708.  A  suit  removed  to  a  Federal  court  on 
the  ground  of  diversity  of  citizenship  in  a 
district  in  which  neither  party  resides  will 
not  be  dismissed  on  appeal  where  both  par- 
ties have  consented  to  the  jurisdiction. 
Louisville  &  N.  R.  Co.  v.  Fisher,  11:926, 
155  Fed.  68,  83  C.  C.  A.  584. 

709.  A  plaintiff  who  makes  no  objection  to 
the  jurisdiction  of  a  Federal  court  to  which 
the  case  is  removed  on  the  ground  of  di- 
verse citizenship  because  neither  party  re- 
sides within  the  district,  but  proceeds  with 
the  trial,  will  not  be  heard  to  raise  the  ob- 
jection on  appeal.  Shanberg  v.  Fidelity  &  C. 
Co.  19:  1206,  158  Fed.  1,  85  C.  C.  A.  343. 
Jurisdiction  of  eqnity. 

710.  The  jurisdiction  of  a  court  of  equity 
to  enjoin  an  attempted  use  of  a  right  of 
way  cannot  be  questioned  for  the  first  time 
on  appeal.  Barber  v.  Bailey,  44:  98,  84  Atl. 
608,  85  Vt.  219. 

3.  Causes  of  action  or  defenses;  new 
theories. 

(See  also  same   heading   in   Digest  L.R.A. 
1-10.) 

Necessity    of    raising    Federal    question    in 
lower  court,  see  supra,  66,  67. 

711.  Parties  to  a  cause  are,  in  the  su- 
preme court,  confined  to  the  theory  on 
which  the  cause  was  tried  in  the  court  be- 
low. Harrison  v.  Murphey,  49:  1059,  135 
Pac.  1137,  39  Okla.  548. 

712.  A  judgment  cannot  be  afl5rmed  on 
a  theory  not  presented  in  the  pleading  and 
proofs.  Woodson  v.  Metropolitan  Street 
R.  Co.  30:  931,  123  S.  W.  820,  224  Mo. 
685. 

713.  The  admission  of  evidence  cannot 
be  declared  to  be  error  on  appeal,  for  a 
reason  different  from  that  claimed  at  the 
trial.  Lilly  v.  Hamilton  Bank,  29:  558, 
178  Fed.  53,  102  C.  C.  A.  1. 

714.  An  appellant  cannot  contend,  upon 
appeal,  for  an  interpretation  of  the  com- 
plaint different  from  the  theory  on  which 
the  case  was  tried  in  the  lower  court.  Flint 
&  W.  Mf^.  ^o.  V.  Beckett,  12:  924,  79  N.  E. 
503,  167  Ind.  491. 

715.  A  motion  to  set  aside  a  decree  cannot 
be  supported  on  grounds  not  pleaded  or 
Digest  1-52  11R.A.(N.S.) 


suggested  at  the  trial.     Keil  v.  Wright,  13: 
184,  112  N.  W.  633,  135  Iowa,  383. 

716.  A  defendant  cannot  prevent  the  re- 
versal, by  the  appellate  court,  of  a  judgment 
in  his  favor,  on  the  ground  that  to  do  so 
will  depart  from  the  theory  on  which  the 
case  was  tried,  where  sucli  theory  was  ad- 
vanced by  him,  and  was  erroneous.  Brad- 
burn  V.  Whatcom  Countv  R.  &  Light  Co. 
14:  526,  88  Pac.  1020.  45  Wasli.  582. 

717.  An  objection  that,  by  filing  a  general 
denial  and  failing  to  plead  the  statute  of 
frauds,  the  defendant  waived  any  defense 
under  the  statute,  cannot  be  raised  for  the 
first  time  in  the  supreme  court.  Baldwin 
v.  Baldwin,  4:  957,  84  Pac.  568,  73  Kan.  39. 

718.  Objection  that  a  provision  limiting 
the  speed  of  cars  upon  the  street  railway, 
the  franchise  for  the  operation  of  which 
was  owned  by  defendant,  which  was  offered 
in  evidence  to  show  negligence  in  exceeding 
that  speed,  was  in  the  franchise  of  a  cor- 
poration other  than  defendant,  cannot  be 
raised  for  the  first  time  on  appeal.  Teck- 
lenburg  v.  Everett  R.  Light  &  Water  Co. 
34:  784,  109  Pac.  1036,  59  Wash.  384. 

719.  A  conviction  for  resisting  the  execu- 
tion of  a  warrant  will  not  be  reversed  be- 
cause of  absence  of  direct  evidence  to  show 
that  the  place  where  the  attempt  at  execu- 
tion was  made  was  within  the  jurisdiction 
of  the  officers  issuing  and  attempting  to 
execute  it,  if  all  the  parties  take  it  for 
granted  at  the  trial  that  it  was  so.  Ap- 
ling  V.  State,  28:  548,  128  S.  W.  866,  95 
Ark.   185. 

720.  The  question  of  the  legality  of  an  en- 
terprise to  secure  a  profit  out  of  the  organ- 
ization and  construction  of  a  railroad  by 
inducing  the  corporation  to  turn  over  to 
the  construction  company  stock  and  bonds 
in  excess  of  the  cost  of  construction  cannot 
be  raised  for  the  first  time  in  the  supreme 
court.  Leeds  v.  Townsend,  13:  191,  81  N.  E. 
1069,  228  111.  451. 

721.  The  objection,  made  for  the  first  time 
on  appeal  in  an  action  to  enjoin  the  con- 
struction of  an  interurban  electric  railroad 
across  the  track  of  a  steam  railroad,  that 
there  is  no  statute  under  which  a  railroad 
such  as  that  described  in  the  answer  can  be 
incorporated,  and,  for  that  reason,  the  de- 
fendant had  no  right  to  cross  the  complain- 
ant's right  of  way  and  track,  is  not  availa- 
ble where  both  the  complaint  and  the  answer 
averred  that  the  defendant  was  "a  corpora- 
tion organized  under  the  laws  of  the  state 
of  Indiana"  and  engaged  in  the  construction 
of  an  electric  interurban  railroad.  South 
East  &  St.  L.  R.  Co.  v.  Evansville  &  Mt.  V. 
Electric  R.  Co.  13:  916,  82  N.  E.  765,  169 
Ind.  339. 

722.  In  an  action  by  landowners,  brought 
under  Ohio  Rev.  Stat.  1906,  §  6448,  to  com- 
pel a  railroad  company  to  appropriate  lands 
of  which  it  held  possession,  the  failure  of 
the  owners  to  serve  upon  the  railroad  com- 
pany the  statutory  notice  requiring  it  to 
proceed  to  appropriate  the  lands  cannot  be 
taken  advantage  of  for  the  first  time  on 
appeal.  W^ebster  v,  Pittsburg,  C.  &  T.  R. 
Co.  15:  1154,  84  N.  E.  592,  78  Ohio  St.  87. 


APPEAL  AND  ERROR,  VII.  j,  3. 


107 


723.  A  judgment  in  favor  of  a  religious 
society  for  disturbance  of  its  meetings  by 
the  operation  of  a  railroad  in  the  vicinity, 
which  is  based  on  the  theory  that  such  oper- 
ation damaged  the  property  within  the 
meaning  of  a  constitutional  provision  re- 
quiring compensation  in  such  cases,  can- 
not be  sustained  on  appeal,  on  the  theory 
that  such  operation  constituted  a  nuisance, 
where  tlie  case  was  neither  tried  nor  sub- 
mitted to  the  jury  upon  any  such  theory. 
Twenty-Second  Corp.,  etc.  v.  Oregon  S.  L. 
R.  Co.  23:  860,  103  Pac.  243,  36  Utah,  238. 

724.  In  an  action  brought  to  recover  up- 
on a  written  contract  for  the  purchase  price 
of  an  article,  a  contention  that  the  pur- 
chaser renounced  the  contract  before  deliv- 
ery or  attempted  delivery  was  made,  or  that 
no  delivery  was  in  fact  ever  made,  will  not 
be  considered  on  appeal  if  not  raised  in 
the  trial  court.  International  Harvester  Co. 
V.  Elfstrom,  12:  343,  112  N.  W.  252,  101 
Minn.  263. 

725.  A  municipal  corporation  which  at- 
tempts to  defend  a  suit  for  injunction 
against  the  enforcement  of  an  ordinance 
fixing  teleplione  rates  under  statutory  au- 
thority by  establishing  their  reasonable- 
ness cannot  secure  a  reversal  of  a  judgment 
against  it  because  the  rates  were  the  same 
as  were  estfiblished  by  the  ordinance  grant- 
ing the  franchise  to  the  company.  Home 
Teleph.  Co.  v.  Carthage,  48:  1055,  139  S. 
W.  547,  235  Mo.  644. 

,  726.  A  judgment  purporting  to  be  for 
the  ffecovery  of  the  plaintiff's  attorneys' 
fee  cannot  be  upheld  on  the  theory  that  it  I 
was  allowed  as  punitive  damages,  where  the 
record  shows  that  no  issue  as  to  the  allow- 
ance of  punitive  damages  was  presented  or 
determined.  Evans  v.  Central  L.  Ins.  Co. 
41:  1130,  125  Pac.  86,  87  Kan.  641. 

727.  Failure  to  plead  estoppel  to  take  ad- 
vantage of  the  raising  of  a  check,  in  an 
action  to  hold  a  bank  liable  to  the  de- 
positor for  its  amount  notwithstanding  pay- 
ment to  the  holder,  is  not  available  for  the 
first  time  on  appeal,  where  both  parties  at 
the  trial  treated  that  as  the  sole  question 
before  the  court.  Otis  Elevator  Co.  v.  First 
Nat.  Bank,  41:  529,  124  Pac.  704,  163  Cal. 
31. 

728.  The  objection  that  an  action  to  en- 
force payment  of  a  fire  insurance  policy 
was  brought  prematurely  cannot  be  raised 
for  the  first  time  in  the  appellate  court. 
Waterloo  Lumber  Co.  v.  Des  Moines  Ins. 
Co.  51 :  539,  138  N.  W.  504,  158  Iowa,  563. 

729.  An  objection  that  the  action  was 
prematurely  brought  cannot  be  raised  for 
the  first  time  on  appeal.  International 
Harvester  Co.  v.  Elfstrom,  12:  343,  112  N. 
W,  252,   101   Minn.  263. 

Parties. 

730.  An  objection  for  lack  of  parties  can- 
not be  raised  for  the  first  time  on  appeal. 
Sparrow  v.  E.  Bement  &  Sons,  10:  725,  105 
N.  W.  881,  142  Mich.  441. 

731.  Want  of  necessary  parties  will  not  j 
be  considered  for  the  first  time  on  petition  j 
for  rehearing.     Seven  Lakes   Reservoir  Co. 
Digest  1-52  I..R.A.(N.S.) 


V.  New  Loveland  &  G.  Irrig.  &  L.  Co.  17: 
329,  93   Pac.  485,  40  Colo.   382. 

732.  An  objection  to  the  misjoinder  of 
complainants  cannot  be  made  for  the  first 
time  on  appeal.  Ohio  Oil  Co.  v.  Daughetee, 
36:  1 108,  88  N.  E.  818,  240  111.  361. 

733.  The  question  of  the  effect  of  the 
joinder  of  an  ineligible  beneficiary  in  a  suit 
on  a  mutual  benefit  certificate  cannot  be 
raised  for  the  first  time  on  appeal.  Cunat 
v.  Supreme  Tribe  of  Ben  Hur,  34:  1192,  94 
N.  E.  925,  249  111.  448. 

734.  An  objection  for  want  of  parties  can- 
not be  made  for  the  first  time  on  appeal. 
Wilson  V.  Irwin,  42:  722,  138  S.  W.  373,  144 
Ky.  311.  ^ 

735.  Failure  to  join  a  woman  in  an  action 
to  hold  her  husband  liable  for  injury , 
inflicted  by  her  in  driving  an  automobile 
cannot  be  questioned  for  the  first  time  on 
appeal.  Minor  v.  Mapes,  39:  214,  144  S.  W. 
219,   102  Ark.  351.  -, 

736.  Where  a  corporation  defends  an  ac- 
tion to  compel  a  transfer  of  stock  upon  its 
books  upon  the  ground  that  the  stock  had 
been  sold  under  judicial  process  in  a  suit 
against  the  stockholder  in  which  it  was 
served  as  garnishee,  so  that  the  legal  rights 
of  the  purchasers  are  fully  considered,  the 
supreme  court  will  not  consider  the  ques- 
tion, raised  for  the  first  time  before  it,' 
whether  or  not  they  ought  to  have  been 
made  parties  to  the  proceeding.  Pease  v. 
Chicago  Crayon  Co.  18:  1158,  85  N.  E.  619, 
235  111.  391.  I 
Capacity  of  unincorporated  associa- 
tion to  sue  or  be  sued.  i 

737.  The  want  of  capacity  of  a  voluntary, 
association  to  maintain  an  action  in  its  own 
name  cannot  be  raised  for  the  first  time  on 
appeal.  Franklin  Union  No.  4  v.  People, 
4:  looi,  77  N.  E.  176,  220  111.  355.  ; 

738.  The  objection  that  defendant,  an  un- 
incorporated voluntary  association,  was  sued 
in  its  compon  name,  cannot  be  raised  for 
the  first  time  on  appeal.  Iron  Moulders' 
Union  No.  125  v.  AUis-Chalmers  Co.  20:  315, 
166  Fed.  45,  91  C.  C.  A.  631. 
Unconstitutionality  of  statute.  1 

739.  An  objection  to  the  constitutionality 
of  a  provision  in  a  mechanics'  11  11  law  al- 
lowing attorneys'  fees  to  the  lienor's  solicitor 
cannot  be  raised  for  the  first  time  on  ap- 
peal. R.  Haas  Electric  &  Mfg.  Co.  v.  Spring- 
field Amusement  Park  Co.  23:  620,  86  N. 
E.  248,  236  111.  452. 

Limitation  of  actions. 

740.  A  garnishee  cannot  plead  the  statute 
of  limitations  to  a  recovery  of  a  claim 
against  him  for  the  first  time  in  the  ap- 
pellate court.  Tiger  v.  Rogers  Cotton 
Cleaner  &  Gin  Co.  30:  694,  133  S.  W.  535, 
96  Ark.  1. 

741.  One  cannot  set  up  on  appeal  the  de- 
fense of  laches  to  a  suit  to  require  removal 
of  a  building  from  complainant's  land, 
where  it  was  not  set  up  in  the  pleadings. 
Kershishian  v.  Johnson,  36:  402,  96  N.  E. 
56,  210  Mass.  135. 

742.  A  defense  of  the  statute  of  limita- 
tions against  a  claim  of  one  of  the  creditors 
for  whose  benefit  a  suit  is  brought  by   a 


108 


APPEAL  AND  ERROR,  VII.  j,  4. 


receiver  against  delinquent  stockholders  can- 
not be  raised  for  the  first  time  on  appeal, 
where  the  answer  in  the  lower  court  failed 
to  raise  it,  but  contested  the  right  of  that 
creditor  to  the  remedy  because  he  was  him- 
self one  of  the  delinquent  stockholders.  Eas- 
ton  Nat.  Bank  v.  American  Brick  &  T.  Co. 
(N.  J.  Err.  &  App.)  8:  271,  64  Atl.  917,  70 
N.  J.  Eq.  732. 
Negligence. 

743.  The  construction,  by  the  parties,  of  a 
complaint  in  an  action  for  personal  injuries 
as  setting  up  a  cause  of  action  for  ordinary 
negligence,  precludes  a  claim  before  the  ap- 
pellate court  that  a  cause  of  action  for  wil- 
ful injury  is  stated.  Morey  v.  Lake  Su- 
perior T.  &  T.  R.  Co.  12:  221,  103  N.  W.  271, 
125  Wis.  148. 

744.  A  nonsuit  in  an  action  by  a  servant 
against  his  master  to  recover  for  a  personal 
injury,  on  the  ground  that  the  injury  was 
caused  by  a  fellow  servant,  cannot  be  sus- 
tained when  it  is  determined  that  the  in- 
jury was  caused  by  a  superintendent,  on  the 
theory  of  assumption  of  risk  or  contributory 
negligence,  where  the  evidence  does  not  con- 
clusively show  that  plaintiff  was  negligent. 
Rippy  V.  Southern  R.  Co.  21:  601,  61  S.  E. 
1010,  80  S.  C.  539. 

Contracts. 

745.  The  question  of  nonforfeiture  of  an 
insurance  policy  cannot  be  raised  for  the 
first  time  on  appeal,  where  the  action  was 
tried  on  the  theory  of  a  forfeiture  which 
was  claimed  to  have  been  waived.  In- 
dustrial Mut.  Indemnity  Co.  v.  Thompson, 
10:  1064,  104  S.  W.  200,  83  Ark.  575. 

746.  The  question  of  the  effect  of  vacancy 
of  a  building  without  knowledge  of  the  in- 
surer, prior  to  the  issuance  of  a  vacancy 
permit,  upon  the  validity  of  the  policy,  can- 
not be  raised  for  the  first  time  on  appeal. 
Duncan  v.  National  Mut.  F.  Ins.  Co.  ao:  340, 
98  Pac.  634,  44  Colo.  472. 

747.  Failure  to  raise  the  question  of  the 
effect  of  failure  to  prove  payment  of  pre- 
mium in  an  action  on  an  insurance  policy 
is  within  a  statute  providing  that  in  no 
case   shall   the   appellate   court  decide   any 

,  question  which  does  not  plainly  appear  to 
have  been  raised  and  decided  below.  Ger- 
man Union  F.  Ins.  Co.  v.  Fred  G.  Clarke 
Co.  39:  829,  82  Atl.  974,  116  Md.  622. 

748.  A  claim  by  an  indorser  of  a  note  that 
he   refrained  from   taking   steps   to   enforce 

'■  the  maker's  liability  because  of  false  repre- 
'sentations   of   the   holder   cannot  be   raised 

for    the    first    time    on    appeal.      Rogers   v. 

Detroit  Sav.   Bank,   18:  530,  110  N.   W,  74, 

146  Mich.  639. 

749.  Where  an  action  upon  a  municipal 
contract  void  because  in  excess  of  the  char- 
ter authority  of  the  municipality,  was  tried 
on  the  theory  that  the  want  of  power  to 
make  the  contract  was  properly  raised,  a 
reversal  cannot  be  secured  on  appeal  on  the 
theory  that  it  was  not  so  raised,  if  no  con- 
tention is  made  that  the  contract  had  been 
validated.  Perry  Water,  L.  &  I.  Co.  v. 
Perry,  39:  72,  120  Pac.  582,  29  Okla.  593. 
Digest  1-52  L.R.A.(N.S.) 


4.  As    to    pleadinga;    indictments,    etc. 

(See   also   same    heading    in   Digest   L.R.A. 
1-10.) 

750.  Where  trial  is  had  and  judgment 
entered  on  findings  suflicient  to  sustain  such 
judgment,  the  court  on  appeal  will  not  re- 
view tl)e  sufficiency  of  the  pleadings,  un- 
challenged in  the  court  below,  when  such 
defects  could  have  been  remedied  by  amend- 
ment iiad  suitable  objection  been  made  at 
the  trial.  Ditton  v.  Purcell,  36:  149,  132  N, 
W.  347,  21  N.  D.  648. 

751.  Parties  wiio  treated  the  pleadings  as 
sufficient  to  raise  the  question  of  the  effect 
of  a  judgment  recovered  upon  the  riglit  to 
maintain  the  action  cannot  for  the  first 
time  on  appeal  raise  the  question  as  to 
what  the  ruling  should  have  been  if  the 
sufficiency  of  the  pleadings  had  been  tested 
by  demurrer  or  motion.  Talcott  v.  Friend, 
43:  649,  179  Fed.  076,  103  C.  C.  A.  80. 

752.  Refusal  to  direct  a  verdict  in  defend- 
ant's favor  cannot  be  rendered  erroneous  by 
suggesting  for  the  first  time  on  appeal  a 
fatal  defect  in  pleading  because  of  the  prior 
dismissal  of  the  action  in  favor  of  one  of 
the  two  joint  defendants.  Georgetown  & 
T.  R.  Co.  V.  Smith,  5:  274,  25  App.  D.  C. 
259. 

Complaint,  declaration,  or  petition. 

753.  The  objection  that  a  complaint 
states  no  cause  of  action  cannot  be  made 
for  the  first  time  on  appeal.  Travelers' 
Indemnity  Co.  v.  Fawkes,  45:  331,  139  N.  W. 
703,  120  Minn.  353. 

754.  Defects  in  a  declaration  are  not  cog- 
nizable on  appeal  where  there  was  no  de- 
murrer, and  the  point  was  not  properly 
raised  on  the  trial.  Merrihane  v.  Miller, 
25:  585,  118  N.  W.  11,  122  N.  W.  82,  157 
Mich.  279. 

755.  Want  of  certainty  in  a  complaint 
may  be  remedied  by  the  evidence  and  ver- 
dict, as  against  an  attack  for  the  first  time 
on  appeal.  Indianapolis  Traction  &  T.  Co. 
v.  Kidd,  7:  143,  79  N.  E.  347,  167  Ind.  402. 

756.  An  exception  to  the  judgment  in  an 
action  on  a  draft  does  not  raise  the  ques- 
tion whetlier  or  not  it  was  error  to  declare 
in  general  assumpsit  rather  than  specially. 
Valiquette  v.  Clark  Bros.  Coal  Min.  Co. 
34:  440,  77  Atl.  869,  83  Vt.  538. 

757.  An  objection  that  a  corporation  is 
sued  by  a  wrong  name  cannot  be  made  for 
the  first  time  on  appeal.  L'niversity  of 
Louisville  v.  Hammock,  14:  784,  106  S.  W. 
219,  127  Ky.  564. 

758.  The  objection  that  a  petition  does 
not  state  a  cause  of  action  may  be  raised 
for  the  first  time  on  appeal.  Cartwright  v. 
Liberty  Teleph.  Co.  12:  1125,  103  S.  W.  982, 
205  Mo.  126. 

759.  Upon  an  appeal  from  an  order  deny- 
ing defendant  a  new  trial  after  verdict  in 
plaintiff's  favor,  the  question  of  the  sufficien- 
cy of  the  complaint  to  support  a  cause  of  ac- 
tion cannot  be  raised,  unless  it  was  properly 
raised  in  the  trial  court.  Leggat  v.  Gerrick, 
8:  1238,  88  Pac.  788,  35  Mont.  91. 

760.  The  appellate  court  will  not  consider 


APPEAL  AND  ERROR,  VII.  j,  5. 


109 


an  objection  of  misjoinder  of  causes  of  ac- 
tion in  a  bill  for  injunction,  if  it  was  not 
presented  to  the  trial  court,  or  made  the 
basis  of  an  assignment  of  error.  Evenson 
V.  Spaulding,  9:^904,  150  Fed.  517,  82  C.  C. 
A.  263. 

761.  An  objection  that  an  amendment  to 
the  complaint  was  improperly  made  can- 
not be  made  for  the  first  time  on  appeal. 
Springfield  Shingle  Co.  v.  Edgecomb  Mill 
Co.  35:  258,  101  Pac.  233,  52  Wash.  620. 

762.  An  objection  that  the  averments  of 
the  complaint  were  not  put  in  issue  cannot 
be  raised  for  the  first  time  on  appeal. 
Hardeman  v.  Williams,  10:  653,  43  So.  726, 
150  Ala.  415. 

763.  A  party  cannot  be  heard  to  question 
the  propriety  of  a  cross-complaint  in  an 
action  to  quiet  title  to  real  estate,  for  the 
first  time  on  appeal.  Johnson  v.  Taylor, 
10:  818,  88  Pac.  903,  150  Cal.  201. 

764.  The  failure  of  a  foreign  corporation 
to  allege,  in  an  action  brought  by  it  witli- 
in  the  state  of  Idaho,  its  compliance  with 
the  Constitution  and  statutes  of  the  state 
in  regard  to  designating  an  agent  upon 
whom  service  of  process  may  be  had,  or 
to  aver  that  it  has  filed  its  articles  of  in- 
corporation as  required  by  law,  must  be 
taken  advantage  of  by  demurrer  or  answer, 
and  cannot  be  raised  for  the  first  time  in 
the  appellate  court.  Valley  Lvimber  &  Mfg. 
Co.  V,  Driessel,  15:  299,  93  Pac.  765,  13 
Idaho,  662. 

Answer. 

765.  Relators  cannot  on  appeal  raise  the 
objection  for  the  first  time  that  an  affidavit 
of  defense  in  a  mandamus  proceeding  should 
not  have  been  treated  as  a  pleading,  where 
it  was  in  fact  an  answer  in  all  but  name. 
State  ex  rel.  Hallett  v.  Seattle  Lighting 
Co.  30:  492,  110  Pac.  799,  60  Wash.  81. 
Indictments,  etc. 

766.  Variance  between  indictment  and 
proof  in  the  surname  of  deceased  in  a 
homicide  case  may  be  raised  for  the  first 
time  on  appeal,  and  is  reversible  error. 
Clark  V.  State,  38:  187,  57  So.  209,  100  Miss. 
751.  (Annotated) 

767.  An  indictment  for  perjury  may  be 
assailed  for  the  first  time  in  the  appellate 
court  on  the  ground  that  it  does  not  state 
facts  sufficient  to  constitute  a  cause  of  ac- 
tion. State  V.  Coyne,  21:  993,  114  S.  W.  8, 
214  Mo.  344. 

768.  An  appellate  court  cannot,  upon  ob- 
jection raised  for  the  first  time  before  it, 
hold  that  an  indictment  for  smuggling  is 
defective  in  a  prejudicial  sense  because  it 
merely  charges  that  accused  did  unlawfully, 
knowingly,  and  fraudulently  bring  into  the 
United  States  ce-rtain  merchandise  clandes- 
tinely, and  without  entering  the  same  at  the 
customs  office,  and  paying  duty  thereon, 
contrary  to  law,  without  specifying  what 
law,  or  specifically  charging  that  accused 
was  guilty  of  smuggling.  Rogers  v.  Unit- 
ed States,  31:  264,  180  Fed.  54,  103  C.  C.  A. 
408. 

Digest   1-52  Ii.R.A.(N.S.) 


5.  As  to  evidence ;  witnesses ;  variance. 

(See   also   same    heading    in   Digest   L.R.A. 
1-70. J 

769.  The  ground  of  objection  to  evidence 
cannot  be  presented  for  the  first  time  on 
appeal.  Managle  v.  Parker,  24:  180,  71  Atl. 
637,  75  N.  H.  139. 

770.  An  objection  to  questions  asked  of  a 
witness  cannot  be  made  for  the  first  time 
on  a  motion  for  a  new  trial,  or  on  appeal. 
State  v.  Speyer,  14:  836,  106  S.  W.  505,  207 
Mo.  540. 

771.  An  objection  to  the  mode  of  proving 
defendant's  testimony  given  on  former  trials 
for  homicide  cannot  be  made  for  the  first 
time  on  motion  for  a  new  trial,  or  upon 
appeal.  State  v.  Speyer,  14:  836,  106  S.  W. 
505,  207  Mo.  540. 

772.  Failure  to  prove  presentment  and 
notice,  which  the  declaration  in  an  action 
against  the  indorser  of  a  promissory  note 
alleges  to  have  been  made,  is  fatal,  even  in 
the  appellate  court.  Worley  v.  Johnson,  33: 
639,  53  So.  543,  60  Fla.  294. 

773.  The  objection  that  an  answer  of  a 
witness  was  not  responsive  to  the  question 
propounded  to  him  is  not  available  on  ap- 
peal, if  not  taken  at  the  trial,  where  the 
answer  was  ruled  out  because  inadmissible. 
Britton  v.  Washington  Water  Power  Co. 
33:  109,  110  Pac.  20,  59  Wash.  440. 
jPorm  of  question. 

774.  Where  questions  improper  in  form 
are  asked  of  and  answered  by  a  witness  in  a 
criminal  case,  and  no  objection  is  made  nor 
exception  taken,  no  error  is  saved  which  ia 
subject  to  review  by  an  appellate  court  as 
a  matter  of  right ;  and  if  such  inquiries  are 
made  by  a  juryman  with  the  court's  per- 
mission, failure  of  the  court  to  interpose 
objections  is  not  necessarily  reversible  error. 
State  V.  Crawford,  i :  839,  104  N.  W.  822, 
96  Minn.  95. 

Admission   of  evidence. 

Sufficiency  of   objections  or  exceptions,  see 

supra,  V.  a,  2,  a. 
Necessity  for  exception,  see  supra,  346-349. 
Mode  of  raising  objection  as  to,  see  supra, 

365-368. 
See  also  supra,   713. 

775.  Alleged  error  in  the  admission  of 
evidence  to  which  no  objection  was  taken 
at  the  trial  cannot  be  considered  on  appeal. 
State  V.  Duff,  24:  625,  122  N.  W.  829,  144 
Iowa,  142. 

776.  A  motion  to  strike  out  evidence  ad- 
mitted subject  to  exception  is  necessary  to 
raise  a  question  for  the  reviewing  court. 
Knickerbocker  Ice  Co.  v.  Gardiner  Dairy 
Co.  16:  746,  69  Atl.  405,  107  Md.  556. 

777.  A  motion  to  strike  out  tlie  answers  is 
necessary  to  make  available  failure  to  sup- 
ply, according  to  promise,  missing  elements 
in  hypothetical  questions  addressed  to  wit- 
nesses. Flint  &  W.  Mfg.  Co.  v.  Beckett,  12: 
924,  79  N.  E.  503,  167  Ind.  491. 

778.  There  is  no  error  in  receiving  in  a 
prosecution  of  two  jointly,  evidence  prop- 
erly admissible  against  one,  but  the  other 
must   ask    to    have    it    limited    to   the    one 


no 


APPEAL  AND  ERROR,  VII.  j,  6,  7. 


against  whom  it  was  admissible  if  he  de- 
sires such  limitation.  State  v.  Gillies,  43: 
776,^  123  Pac.  93,  40  Utah,  541. 

779.  An  objection  that  the  proper  foun- 
dation for  the  admissibility  of  testimony 
was  not  laid  cannot  be  taken  in  tlie  appel- 
late court  for  the  first  time.  Simoneau  v. 
Pacific  Electric  R,  Co.  49:  737,  136  Pac. 
544,  166  Cal.  264. 

780.  An  appellate  court  will  not  consider 
any  grounds  of  objection  to  the  admissibility 
of  evidence,  except  such  as  were  made  in  the 
court  below;  the  plaintiff  in  error  being 
confined  to  the  specific  grounds  of  objection 
made  by  him  in  the  trial  court.  Pittman  v. 
Stgitje,  8:  509,  41  So.  385,  51  Fla.  94. 

f  781.  The  appellate  court  will  not  consider 
the  question  of  the  admissibility  of  evidence 
to  which  no  objection  was  made  when  of- 
fered, and  as  to  the  competency  of  which 
no  argument  has  been  made.  Re  Lamb,  18: 
226,  117  N.  W.  1118,  140  Iowa,  89. 
Sufficiency  of  evidence. 

782.  Failure  to  show  that  the  street  on 
which  an  accident  occurred  for  which  a 
municipal  corporation  is  sought  to  be  held 
liable  was  a  public  street  within  its  limits 
is  not  reversible  error,  where  both  parties 
assumed  at  the  trial  that  it  was  so.  Wood- 
son V.  Metropolitan  Street  R.  Co.  30:  931, 
123  S.  W.  820,  224  Mo.  685. 

783.  A  Federal  appellate  court  cannot  re- 
view an  alleged  error  of  a  jury  in  failing 
to  find  a  verdict  for  the  plaintiff,  where  no 
request  was  made  to  the  court  to  instruct 
the  jury  to  return  a  verdict  for  the  plain- 
tiff, on  the  ground  that  the  evidence  was 
so  conclusive  in  his  favor  that  the  court 
would  not  sustain  a  contrary  verdict. 
Thompkins  v.  Missouri,  K.  &  T.  R.  Co. 
52:  791,  211  Fed.  391,  128  C.  0.  A.  1. 
Variance. 

784.  An  objection  because  of  variance 
cannot  be  raised  for  the  first  time  on  ap- 
peal. Smith  V.  Cashie  &  C.  R.  &  Lumber  Co. 
5:  439,  54  S.  E.  788,  142  N.  C.  26. 

785.  A  question  of  variance  between 
pleading  and  proof  cannot  be  raised  for  the 
first  time  on  appeal.  Houren  v.  Chicago, 
M.  &  St.  P.  R.  Co.  20:  mo,  86  N.  E.  611, 
236    111.    620. 

786.  The  question  of  a  variance  between 
pleading  and  proof  cannot  be  raised  for  the 
first  time  on  appeal.  Mount  v.  Montgom- 
ery County,  14:  483,  80  N.  E.  629,  168  Ind. 
661. 

787.  The  question  of  variance  between 
pleading  and  proofs  cannot  be  raised  for  the 
first  time  on  appeal.  Hayes  v.  Wabash  R. 
Co.  31:  229,  128  N.  W.  217,  163  Mich.  174. 

788.  Permitting  a  recovery  against  a 
street  car  company  as  a  private  carrier 
when  its  liability  as  a  common  carrier  is 
asserted  in  the  complaint  is  not  error  where 
no    objection    was    made    below    and    de- 

.  fendant  was  not  misled  thereby.  Indian- 
apolis Traction  &  T.  Co.  v.  Lawson,  5:  721, 
143  Fed.  834,  74  C.  C.  A.  630. 

789.  A  municipal  corporation  cannot,  for 
the  first  time  on  appeal,  object  to  a  finding 
supported  by  evidence  introduced  without 
objection,  that  the  fee  of  a  street  was  in  a 
Digest  1-52  Ii.B.A.(N.S.) 


certain  person  becaiisje  of  his  ownership  of 
the  abutting  property,  on  the  ground  that 
the  fact  of  such  ownership  vvaa  not  alleged 
in  the  declaration,  vfhere  the  answer  eon- 
tains  averments  from  which  sucb  ownership 
may  be  inferred.  Colegrove  Water  Co.  v. 
Hollywood,  13:  904,  901  Pac.  1053,  151  Gal. 
425. 

G.  As  to  jury., 

(See  same  heading  m  Digest  L.R.A..  t—70.) 

7.  As    to    instructions;    questions'  sub" 
mitted  to  jury. 

(See  also  same    heading    in  Digest  &Ji.A. 
1-10.) 

Sufficiency  of  objections  and  exceptionsy  see 

supra,  V.  a,  3. 
Necessity  for  exception,  see  aupra,  350-355. 

790.  A  party  cannot  take  advantage^  on 
appeal,  of  an  indefinite  and  erroneous  charge 
to  the  jury,  where  he  made  no  objection 
thereto,  and  the  court  was  apparently  mis- 
led by  averments  in  the  party's  pleading. 
Beissel  v.  Vermillion  Farmers'  Elev.  Co.  l24 
403,  113  N.  W\  575,  102  Minn.  229. 

791.  A  party  cannot  complain  of  the  omis- 
sion from  an  instruction,  whielii  is  right  so 
far  as  it  goes,  of  elements  which  he  deems 
material,  unless  he  calls  the  court's  atten^ 
tion  thereto.  Williams  v.  Mineral  City  Park. 
Asso.  i:  427,  102  N.  W.  783,  128  Iowa,  32. 

792.  An  instruction  cannot  be  held  erro- 
neous on  appeal  for  a  cause  not  brought  tso 
the  attention  of  the  trial  court.  Chicago 
G.  W.  R.  Co.  v.  McCormick,  47:  18,  200 
Fed.  375,  118  C.  C.  A.  527. 

793.  Error  cannot  be  predicated  upon> 
instructions  which  are  in  the  main  correct, 
on  the  ground  that  they  should  have  been 
more  specific,  by  a  party  who  did  not  re- 
quest the  giving  of  more  specific  instruc- 
tions. Curtis  &  Gartside  Cov  v.  Pribyl, 
49:  471,  134  Pac.  71,  38  Okla.  511. 

794.  One  cannot  complain  of  want  of  full- 
ness in  the  instructions  if  he  made  no  at- 
tempt to  have  them  made  more  specific. 
Saunders  v.  Gilbert,  38:  404,  72  S.  K  610, 
156  N.  C.  463. 

795.  Failure  of  the  court  to  submit  a 
question  to  the  jury  cannot  be  complained 
of  when  no  request  for  the  submission  of 
the  question  was  made.  Coe  v.  Northern 
P.  R.  Co.  11:  228,  111  N.  W.  651,  101  Minn. 
12. 

796.  A  party  cannot  complain  of  an  in- 
struction upon  the  subject  of  damages  be- 
cause it  is  not  specific  enough,  if  he  fails 
to  request  one  which  supplies  the  defect. 
Burnside  v.  Peterson,  17:  76,  96  Pac.  256. 
43  Colo.  382. 

797.  Joint  defendants  in  an  action  for 
pollution  of  a  stream  will  not  be  heard, 
for  the  first  time  on  appeal,  to  question  an 
instruction  permitting  a  joint  judgment 
against  them  for  the  whole  damages,  al- 
though each  is  responsible  for  only  a  part 
of  the  injury.  Arminius  Chemical  Co.  v. 
Landrum,  38:  272,  73  S.  E.  459,  113  Va.  7. 


APPEAL  AND  ERROR,  VII.  j,  8,  k,  1. 


Ill 


798.  One  cannot  complain  for  the  first 
time  on  appeal  of  an  erroneous  definition 
of  the  crime  for  which  he  is  on  trial.  Com. 
V,  Althause,  31:999,  93  N.  E.  202,  207 
Mass.  32. 

799.  Alleged  errors  in  the  court's  charge 
to  the  jury  in  a  criminal  prosecution  will 
not  be  considered  on  appeal,  where  they 
were  not  called  to  the  attention  of  the  trial 
court  by  motion  for  a  new  trial.  Territory 
V.  Harwood,  29:  504,  110  Pac.  556,  15  N. 
M.  424. 

8.  As  to  judgment,  verdict,  etc. 

(See  also   same   heading   i/n  Digest  L.R.A. 
1-10.) 

Sufficiency    of    exception    to    findings,    see 

supra,   304-307. 
See  also  supra,  726. 

800.  That  an  injunction  against  the 
maintenance  of  a  nuisance  is  too  bread 
cannot  be  suggested  for  the  first  time  on 
appeal.  Grantham  v.  Gibson,  3:  447,  83  Pac. 
14,  41  Wash.  125. 

801.  A  party  cannot  question  on  appeal 
the  action  of  the  court  in  vacating  a  judg- 
ment to  permit  an  amendment  to  show 
jurisdiction  of  the  court  and  subsequently 
re-entering  judgment,  if  the  record  shows 
no  objection  thereto.  HoUoway  v.  White- 
Dunham  Shoe  Co.  10:  704,  151  Fed,  216,  80 
C.  C.  A.  568. 

802.  One  eirjoined  from  interfering  with 
the  natural  plan  by  which  artesian  wells 
are  supplied  on  plaintiff's  property  cannot 
complain  because  the  court  did  not  devise 
an  artificial  plan  by  which  such  result  could 
be  effected,  without  granting  the  injunction, 
where  such  relief  was  not  sought  at  the 
trial.  Miller  v.  Bay  Cities  Water  Co.  27: 
772,  107  Pac.   115,   157  Cal.  256. 

803.  A  decree  following  the  wording  of  a 
statute  cannot  be  attacked  on  appeal,  be- 
cause it  did  not  limit  the  meaning  of  a 
word  used  therein,  if  the  point  was  not 
raised  and  passed  upon  in  the  trial  court. 
White  V.  Manter,  42:  332,  84  Atl.  890,  109 
Me.  408. 

Amount. 

Necessity  for  exception,  see  supra,  358. 

804.  An  award  of  damages,  although 
erroneous  according  to  the  evidence,  will 
not  be  disturbed  on  appeal  if  not  complained 
of  by  the  parties.  Harrington  v.  Demaris, 
i:  756,  77  Pac.  603,  46  Or.  111. 

805.  Exception  to  allowance  of  damages 
not  claimed  in  the  bill  is  available  on  ap- 
peal. Blackman  v.  Mauldin,  27:  670,  51  So. 
23,   164   Ala.   337. 

806.  Where,  on  demurrer  to  the  evidence, 
the  court  below  has  not  ruled  on  the  ques- 
tion of  excessiveness  of  the  conditional  ver- 
dict of  the  jury,  the  appellate  court  will 
consider  only  the  question  whether  the  evi- 
dence sustains  plaintiff's  right  to  damages. 
West  Virginia  Architects  &  Builders  v. 
Stewart,  36:  899,  70  S.  E,  113,  68  W.  Va. 
506. 

Digest  1-52  L.R.A.(N.S.) 


fc.  Errors  ivaived  or  cured  helow. 

1.  In  general. 

(See   also   same    heading   in  Digest  L.R.A. 
1-10.) 

Waiver  of  assignment  of  error,  see  supra, 

IV.  q. 
Curing  errors  in   argument  or  remarks  of 

counsel,  see  infra,  1458-1460. 
By    failure    to    raise    question    below,    see 

supra,  VII.  j. 
Irregularity    in    proceedings    before    public 

service    commission,    see    Appearance, 

15. 
Waiver  of  defects  in  pleading,  see  Pleading, 

I-  g- 
See  also  supra,  377,  381,  470. 

807.  An  error  in  refusing  to  rule  upon 
objections  to  jurisdiction  and  the  admission 
of  evidence  is  cured  by  reopening  the  case, 
and  entering  the  rulings  upon  the  objec- 
tions, and  giving  the  objector  an  opportuni- 
ty to  offer  evidence  in  defense.  Haaren  v. 
Mould,  24:404,  122  N.  W.  921,  144  Iowa, 
296. 

808.  Claiming,  on  motion  for  new  trial, 
that  a  deed  was  executed  by  an  alleged 
grantor  without  consideration,  waives  a  con- 
tention made  at  the  trial  that  he  did  not 
execute  it.  Herron  v.  Allen,  47:  1048,  143 
N.  W.  283,  32  S.  D.  301. 

809.  Participating  in  the  taking  of  testi- 
mony by  a  referee  out  of  the  jurisdiction 
of  the  court  without  a  special  order  author- 
izing it  waives  the  error.  Sharkev  v.  Candi- 
ani,  7:  791,  85  Pac.  219,  48  Or.  'll2. 

810.  Failure  of  the  court  to  withdraw  the 
jury  in  a  criminal  case  during  the  time  evi- 
dence is  being  heard  upon  the  competency 
of  an  alleged  confession,  if  erroneous,  is 
cured  where  proof  of  the  admissions  and 
statements  made  by  the  defendant  is  there- 
after properly  admitted  in  rebuttal  of 
testimony  given  by  him  in  his  own  behalf. 
Harrold  v.  Territory,  10:  604,  89  Pac.  202, 
18  Okla.  395. 

811.  A  ruling  as  to  the  necessity  of  an 
aflBdavit  of  defense  cannot  be  questioned 
on  appeal,  where  it  was  filed  after  trial  was 
had,  and  the  appeal  is  from  the  judgment 
entered  on  the  verdict.  Salberg  v.  Pennsyl- 
vania R.  Co,  31:  1 178,  77  Atl.  1007,  228  Pa. 
641. 

812.  The  omission  to  assert  in  the  plead- 
ings the  invalidity  of  a  contract  because 
contrary  to  the  Sunday  law  does  not  pre- 
clude the  raising  of  the  objection  at  a  later 
time  in  an  action  to  enforce  it.  Jacobson  v. 
Bentzler,  4:  1151,  ^07  N.  W.  7,  127  Wis.  566. 
Right  to  public  trial. 

813.  The  constitutional  right  to  a  public 
trial  of  one  who  has  been  indicted  for  a 
felony,  and  who  has  pleaded  not  guilty,  can- 
not be  waived  by  silence,  but  its  denial  may 
be  urged  on  appeal,  although  no  specific  ob- 
jection is  made  or  exception  entered  at  the 
time.  State  v.  Hensley,  g:  277,  79  N.  E 
462,  75  Ohio  St.  255. 


112 


APPEAL  AND  ERROR,  VII.  k,  2. 


Selection  of  jury. 

Right    to    waive    disqualification    of    juror, 
see  Jury,  74. 

814.  Error  in  impaneling  a  jury  partly  of 
bystanders,  to  try  a  case,  while  the  regular 
drawn  jury  is  out  considering  another  case, 
is  cured  by  the  court's  offering,  upon  the 
return  by  the  latter  jury  of  its  verdict, 
to  substitute  that  jury  for  the  one  errone- 
ously drawn,  so  that  in  case  the  offer  is 
not  accepted  the  losing  party  cannot  com- 
plain of  it.  Weil  V.  Kreutzer,  24:  557,  121 
S.  W.  471,  134  Ky.  563. 

Remarks  of  counsel. 

815.  Replying  to  comments  by  counsel  on 
evidence  admitted  for  the  consideration  of 
the  court  alone  in  determining  the  compe- 
tency of  a  witness  waives  th.  error  of  such 
comments.  Sprinkle  v.  Wellborn,  3:  174, 
52   S.   E.  666,   140  N.   C.   163. 

By  remittitur. 

816.  A  judgment  for  damages  should  not 
be  reversed  for  error  in  an  instruction  as 
to  the  measure  of  damages,  if  the  amount 
which  the  verdict  was  increased  by  the  error 
is  easily  ascertained,  and  a  remittitur  is 
filed  for  that  amount.  Fuhrman  v.  Interior 
\Varehouse  Co.  37:  89,  116  Pac.  666,  64 
Wash.  159. 

Parties. 

817.  The  right  to  object  to  a  misjoinder 
of  parties  defendant,  or  to  require  the  plain- 
tiff to  elect  against  which  of  the  defendants 
he  will  proceed,  is  not  waived  by  answer  or 
demurrer,  where  the  fact  of  the  misjoinder 
does  not  affirmatively  appear  on  the  face  or 
from  the  allegations  of  the  plaintiff's  peti- 
tion, but  is  for  the  first  time  disclosed  by 
the  evidence  which  is  introduced  on  behalf 
of  the  plaintiff.  French  v.  Central  Constr. 
Co.  12:  669,  81  N.  E.  751,  76  Ohio  St.  509. 

2.  As  to  pleadings. 

(See  also  same   heading   in  Digest  L.R.A. 
1-10.) 

By    failure    to    raise    objection    below,    see 

supra,  VII.  j,  4. 
See  also  supra,  527. 

818.  Error  in  striking  mitigating  circum- 
stances from  the  pleadings  in  a  libel  suit 
is  not  cured  by  permitting  evidence  of  them 
to  be  given  at  the  trial,  if  the  record  does 
not  show  that  defendant  had  prepared  him- 
self upon  and  fully  covered  the  matters  so 
alleged.  Rocky  Mountain  News  Printing 
Co.  v.  Fridborn,  24:  891,  104  Pac.  956,  46 
Colo.  440. 

Complaint,  declaration,  or  petition. 

819.  A  finding  of  the  law  and  facts  by 
the  trial  court,  to  wliich  the  case  is  sub- 
mitted without  the  intervention  of  a  jury, 
is  equivalent  to  a  verdict  for  the  purpose  of 
curing  defects  in  the  petition.  Chesapeake 
&  O.  R.  Co.  v.  Williams,  49:  347,  160  S.  W. 
769,  156  Ky.  114. 

Disest  1-52  KB.A.(N.S.) 


820.  Where,  in  an  action  in  the  nature  of 
a  creditors'  bill  brought  by  certain  creditors 
of  a  corporation  to  recover  of  the  share- 
holders the  unpaid  portion  of  their  sub- 
scription, no  objection  is  taken  by  answer 
or  demurrer  to  a  failure  of  the  complaint 
to  allege  that  it  is  brought  on  behalf  of  the 
plaintiff  and  all  other  creditors,  such  de- 
fect is  waived,  and  the  action  may  be  main- 
tained by  the  creditors  who  are  named. 
Randall  Printing  Co.  v,  Sanitas  Mineral 
Water  Co.  43:  706,  lb9  N.  W.  GOG,  120  Minn. 
268. 

821.  The  objection  that  a  declaration 
upon  a  draft  was  in  general  assumpsit 
rather  than  special  in  form  is  waived  if 
not  made  at  the  trial.  Valiquette  v.  Clark 
Bros.    Coal    Min.   Co.    34:  440,    77   Atl.    869, 

83  Vt.  538. 

822.  Failure  to  allege  that  insured  prop- 
erty at  the  time  of  a  fire  was  occupied  as  a 
dwelling  house,  as  required  by  the  policy, 
is  fatal  to  an  action  thereon,  and  is  not 
cured  by  failure  of  the  insurer  to  raise  such 
defense,  or  by  verdict  and  judgment  in  fa- 
vor of  the  insured.  Arnold  v.  American  Ins. 
Co.  25:  6,  84  Pac.  182,  148  Cal.  660. 

823.  Failure  to  allege  in  a  complaint  on 
several  insurance  policies  that  the  property 
was  occupied  as  a  dwelling  house,  as  re- 
quired by  the  policy,  is  not  cured  by  an  im- 
plication in  the  answer  to  the  claim  on  the 
policy  on  the  furniture  that  it  was  in  a 
dwelling.    Arnold  v.  American  Ins.  Co.  25:  6, 

84  Pac.   182,  148  Cal.  660. 
Demurrer. 

See  also  Pleading,  50. 

824.  A  party  who  files  a  new  pleading  aft- 
er a  demurrer  interposed  by  him  is  erro- 
neously stricken  out  as  frivolous  thereby 
waives  the  error.  King  v.  Morris  (N.  J. 
Err.  &  App.)  14:  439,  68  Atl.  162,  74  N.  J. 
L.'810. 

825.  Answering  to  the  merits  waives  error 
in  overruling  a  demurrer  for  want  of  ca- 
pacity of  plaintiffs  to  maintain  the  action. 
Canon  City  v.  Manning,  17:  272,  95  Pac.  537, 
43   Colo.    144. 

Indictment   or   information. 

826.  Error  in  refusing  to  permit  an  ac- 
cused to  withdraw  his  plea  of  not  guilty, 
in  order  to  attack  the  indictment  for  du- 
plicity, is  cured  by  the  election  of  the  gov- 
ernment to  dismiss  all  but  one  charge. 
Waller  v.  United  States,  31:  113,  179  Fed. 
810,  103  C.  C.  A.  302. 

827.  The  arraignment,  trial,  and  convic- 
tion of  a  person  for  mixing  poison  with 
food  will  cure  an  error  in  the  indictment 
charging  the  mixing  of  poison  with  food 
and  giving  it  to  a  person  with  intent  to 
kill^  which  might  be  construed  to  charge 
the  mingling  of  poison  with  food  and  ad- 
ministering poison,  which  are  distinct  of- 
fenses with  different  penalties  under  the 
statute,  where  the  statement  was  sufficient 
to  inform  accused  of  the  ofTense  for  which 
he  was  to  be  tried.  Randle  v.  State,  49:  453, 
82  So.  428,  105  Miss.  561.  (Annotated) 


APPEAL  AND  ERROR,  VII.  k,  3,  4. 


113 


5.  As  to  evidence. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70. J 

By    failure    to    raise    objection    below,    see 

supia,  VII.  j,  5. 
See  also   supra,  809. 

Admission. 

Waiver  by  nature  of  objections  or  excep- 
tions, see  supra,  V.  a,  2,  a. 

By  failure  to  raise  objection  below,  see 
supra,  775-781. 

Errors  cured  by  instruction,  verdict,  etc., 
see  infra,  VII.  m,  3,  a,  5. 

See  also  supra,  807;  infra,  1194. 

828.  Instructing  the  jury  to  ignore  evi- 
dence which  has  been  stricken  out  will  cure 
an  error  in  its  admission.  State  v.  Fuller, 
8:  762,  85  Pac.  369,  34  Mont.  12. 

829.  Error  in  admitting  evidence  offered 
by  the  prosecution  may  be  cured  by  striking 
it  out  and  instructing  the  jury  to  disregard 
it  at  the  request  of  the  prosecuting  at- 
torney. People  V.  Friedman,  45:  $%,  98  N. 
E.  471,  205  N.  Y.  161. 

830.  The  erroneous  admission  of  evidence 
is  cured  by  its  subsequent  withdrawal  be- 
fore the  trial  closes,  and  by  an  instruction 
to  the  jury  to  disregard  it,  except  where 
the  evidence  thus  admitted  is  so  impressive 
that  its  effect  is  not  thereby  removed.  Ar- 
mour &  Co.  V.  KoUmeyer,  16:  mo,  161  Fed. 
78,  88  C.  C.  A.  242. 

831.  The  admission  of  incompetent  evi- 
dence is  not  reversible  error  if  the  objecting 
party  elicited  on  cross-examination  evidence 
to  the  same  effect.  Stewart  &  Co.  v.  Har- 
man,  20:  228,  70  Atl.  333,  108  Md.  446. 

832.  Objection  to  evidence  of  transactions 
with  a  person  since  deceased  is  waived  by 
eliciting  on  cross-examination  new  matter 
as  to  such  transactions,  not  pertaining  to 
anything  elicited  on  direct  examination. 
Mollisoii  V.  Rittgers,  29:1179,  118  N.  VV. 
512,  140  Iowa,  365. 

833.  The  admission  of  incompetent  evi- 
dence is  waived  by  stating,  after  objecting 
to  it:  "All  right;  go  ahead,"  without  mov- 
ing to  exclude  it  after  the  answer  is  given, 
although  an  exception  is  noted.  Burnaman 
V.  State,  46:  1001,  159  S.  W.  244,  70  Tex. 
Crim.  Rep.  361. 

834.  Objections  to  incompetent  evidence 
are  waived  by  permitting  the  witness  sub- 
sequently to  testify  without  objection  to 
the  facts  sought  to  be  elicited  by  it.  Wicker 
V.  Jones,  40:  65,  74  S.  E.  801,  159  N.  C.  102. 

835.  Error  in  admitting  incompetent  evi- 
dence is  waived  by  subsequently  admitting 
the  fact  which  it  is  offered  to  establish. 
Wicker  v.  Jones,  40:  69,  74  S.  E.  801,  159  N. 
C.  102. 

836.  Failure  to  request  the  exclusion  of 
evidence  which  has  become  immaterial  be- 
cause not  connected  with  the  point  in  issue 
will  waive  the  error  of  its  admission,  al- 
though objection  was  made  to  it  at  the 
time  it  was  offered,  which  was  overruled  up- 
on the  promise  to  connect  it  with  the  issue.  , 
Digest   1-52  Ii.R.A.(N.S.)  8 


Com.  V.  Tucker,  7:  1056,  76  N.  E.   127,  180 
Mass.  457. 

837.  Error  in  admitting  evidence  that 
one  accused  of  crime  has  a  reputation  for 
violence  and  turbulence  is  not  cured  by  his 
offering  evidence  in  rebuttal  thereof.  State 
V.  Beckner,  3:  535,  91  S.  W.  892,  194  iMo. 
281. 

838.  An  insurance  company  does  not,  by 
using  as  its  witness  the  agent  who  secured 
a  policy,  as  to  the  negotiations  which  led 
to  the  contract,  waive  its  right  to  insist 
on  error  in  admitting  evidence  of  state- 
ments by  the  agent  that  the  policy  included 
risks  which,  by  its  terms,  it  excluded.  Kel- 
sey  V.  Continental  Casualty  Co.  8:  1014,  108 
N.  W.  221,  131  Iowa,  207. 

839.  The  introduction  in  evidence  of  let- 
ters avoids  any  injury  which  may  have 
been  done  by  the  admission  of  parol  evi- 
dence of  their  contents.  Mount  Vernon 
Brewing  Co.  v.  Teschner,  16:  758,  69  Atl. 
702,  108  Md.  158. 

840.  Error  in  the  admission  in  evidence  of 
a  foreign  statute  requiring  notice  of  ma- 
turity of  premiums  on  insurance  policies  is 
eliminated  by  a  subsequent  ruling  that  the 
statute  has  no  application  to  policies  issued 
within  the  state,  as  was  the  one  before  the 
court.  Matthews  v.  Metropolitan  L.  Ins.  Co. 
18:  i2ig,  61  S.  E.   192,  147  N.  C.  339. 

841.  Error  in  admitting  in  evidence  ad- 
missions of  attorneys  made  to  prevent  a  con- 
tinuance of  a  preliminary  hearing,  to  en- 
able the  state  to  secure  certain  evidence, 
wlien  the  state  has  its  evidence  present  at 
the  trial,  is  not  cured  by  leaving  to  the  jury 
the  determination  of  the  extent  and  purpose 
of  tlie  admission.  State  v.  Butler,  25:  169, 
65  S.  E.  993,  151  N.  C.  672. 
Exclusion. 

Waiver  by  nature  of  objections  or  excep- 
tions, see  supra,  V.  a,  2,  b. 

By  failure  to  raise  objection  below,  see 
supra,  VII.  j,  7. 

842.  Error  in  sustaining  an  objection  to 
a  proper  question  is  cured  by  admitting 
an  answer  to  another  question  covering  the 
same  subject-matter.  State  v.  Gibson,  28: 
965,  68  S.  E.  205,  67  W.  Va.  548. 

843.  The  exclusion  of  evidence  as  to  the 
receipt  of  a  letter  is  without  prejudice  where 
the  party  leceiving  it  was  afterward  allowed 
to  testify  to  the  fact.  Lindahl  v.  Supreme 
Court  I.  0.  of  F.  8:  916,  110  N.  W.  358,  100 
Minn.  87. 

844.  No  objection  can  be  made  to  a 
ruling  excluding  a  question  uniting  two  in 
one,  if,  after  securing  leave  to  separate 
them,  no  further  attempt  is  made  to  ask 
the  portion  of  the  question  which  was 
proper.  State  v.  Counort,  41:  95,  124  Pac. 
910,  uJ  Wash.  301. 

4.  As  to  instinct  ions, 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

By    failure    to    raise    objection    below,    see 

supra,  VII.  j,  7. 
See  also  supra,  211. 


114 


APPEAL  AND  ERROR,  VII.  k,  4. 


845.  A  party  cannot  complain  that  the 
jury  were  not  fully  instructed  a8  to  any 
particular  matter,  when  he  neither  excepted 
to  the  charge  as  given,  nor  requested  more 
specific  directions  upon  the  subject.  Coe  v. 
Northern  P.  R.  Co.  ii:  228,  111  N.  W.  651, 
101  Minn.  12. 

846.  Error  in  failing  fully  to  instruct  the 
jury  upon  a  particular  issue  is  waived  by 
failure  to  request  additional  instructions 
thereon.  Quinn  v.  Chicago,  M.  &  St.  P. 
R.  Co.  22:  789,  120  N.  W.  884,  23  S.  D.  126. 

847.  Tlie  charge  of  a  trial  court  to  the 
jury  is  not  reviewable  in  a  Federal  appel- 
late court  where,  in  answer  to  an  inquiry 
of  the  court  at  the  close  of  the  charge,  the 
party  seeking  to  review  it  states  that  he 
has  no  exception  and  takes  none.  Thomp- 
kins   V.   Missouri,  K.   &   T.   R.   Co.   52:  791, 

211  Fed.   391,   128  C.  C.   A.   1. 

848.  Error  in  instructing  the  jury  in  a 
prosecution  for  seduction  that  prosecutrix 
is  presumed  to  have  been  chaste  until  the 
contrary  is  shown  is  not  corrected  by  the 
fact  that  there  was  evidence  sufficient  to 
have  supported  a  finding  of  chastity  by  the 
jury.  State  v.  Holter,  46:  376,  142  N.  W. 
657,  32  S.  D.  43. 

By  other  instrnction. 

849.  An  erroneous  instruction  is  not  cured 
t)r  rendered  harmless  by  reason  of  the  fact 
that  a  correct  instruction  upon  the  same 
point  was  also  given.  State  v.  Erie  R.  Co. 
(N.  J.  Err.  &  App.)  46:  117,  87  Atl.  141, 
84  N.  J.  L.  661. 

850.  The  vice  of  a  wrong  rule  in  a  charge 
is  not  extracted  by  the  fact  that  the  right 
rule  is  also  given,  because  it  is  impossible 
to  tell  by  which  rule  the  jury  were  gov- 
erned. Armour  &  Co.  v.  Russell,  6:  602, 
144  Fed.  614,  75  C.  C.  A.  416. 

851.  That  the  court  gave  the  jury  a  re- 
quested instruction  which  consisted  of  a 
mere  abstract  proposition  of  law  is  not  er- 
ror, if  the  fault  is  cured  by  the  balance  of 
the  charge.  State  v.  Dickerson,  13:  341,  82 
N.  E.  969,  77  Ohio  St.  34. 

852.  The  giving  of  an  erroneous  preju- 
dicial instruction  is  not  cured  by  a  con- 
flicting one  which  announces  the  correct 
rule,  if  the  former  is  allowed  to  stand.  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  Woods,  33:  855, 
131  S.  W.  869,  96  Ark.  311. 

853.  Error  in  an  instruction  on  a  vital 
issue  in  a  case  is  not  cured  by  another  in- 
■truction  which  correctly  states  the  law 
which  should  be  applied  to  that  issue,  but 
which  is,  in  fact,  applied  to  another  con- 
tention in  the  case.  Wagner  v.  Atlantic 
Coast  Line  R.  Co.  19:  1028,  61  S.  E.  171,  147 
N.  C.  315. 

854.  A  correct  final  instruction  in  an 
action  for  expenses  caused  by  an  injury, 
covering  the  whole  field  for  which  recovery 
is  sought,  corrects  any  instruction  to  the 
contrary  which  has  preceded  it.  Hunt  v. 
Boston  "Terminal  Co.  48:  116,  98  N.  E.  786, 

212  Mass.  99. 

855.  An  instruction  authorizing  a  recovery 
against  a  master  for  injury  to  a  servant  if 
he  did  not  provide  a  sufficient  number  of 
men  to  do  the  work  safely  is  not  cured  by 
Digest  1-52  I..R.A.(N.S.) 


a  further  instruction  that  the  way  to  de- 
termine whether  or  not  he  was  negligent 
was  to  determine  whether  or  not  he  acted 
as  an  ordinarily  prudent  man  would  have 
acted  under  the  same  circumstances.  Rosin 
v.  Danaher  Lumber  Co.  40:  913,  115  Pac. 
833,  63  Wash.  430. 

856.  An  instruction  that  a  servant  does 
not  assume  risks  due  to  the  master's  own 
negligence  is  not  cnred  by  others  present- 
ing the  correct  rule,  since  it  is  impossible 
to  say  which  the  jury  followed.  East  St. 
Louis  &  Suburban  R.  Co.  v.  Kath,  15:  1109, 
83   N.    E.   533,    232    111.    126. 

857.  Error  in  refusing  a  request  to  charge 
that  one  seeking  damages  for  a  personal  in- 
jury could  not  recover,  unless  he  established 
by  a  preponderance  of  evidence  the  specific 
act  of  negligence  relied  on  in  th?  complaint, 
is  not  corrected  by  a  subsequent  charge  that 
there  is  no  alleged  negligence  upon  which  a 
recovery  can  be  based,  except  an  act  de- 
scribed in  the  instruction,  which  is  the  one 
relied  on  in  the  complaint  and  referred  to 
in  the  instruction  refused,  where  the  court 
again  expressly  refuses  to  give  the  first 
instruction  asked;  since  the  conflicting  rul- 
ings would  tend  to  confuse  the  jury.  Damb- 
mann  v.  Metropolitan  Street  R.  Co.  2:  309, 
73  N.  E.  59,  180  N.  Y.  384.        (Annotated) 

858.  Instructing  the  jury  in  a  criminal 
case  that  they  are  to  determine,  from  all 
the  facts  and  circumstances,  whether  the 
defense  of  the  defendant  is  probably  true, 
does  not  prejudicially  cast  the  burden  of 
proof  upon  him,  or  invite  a  verdict  based 
upon  a  mere  probability,  where  in  the  same 
instruction  they  are  also  told  that  the  de- 
fendant is  not  required  to  prove  his  inno- 
cence, and  that  if,  after  the  consideration 
of  all  the  evidence  in  the  case,  including 
the  defendant's  explanation,  there  exists  a 
reasonable  doubt  of  his  guilt,  he  must  be 
acquitted.  State  v.  Wolfley,  11:  87,  89  Pac. 
1046,  75  Kan.  406. 

859.  An  instruction  that  defendant  must 
be  found  guilty  beyond  a  reasonable  doubt 
before  he  can  be  convicted  is  not  the  equiva- 
lent of  a  requested  instruction  that  he  is 
presumed  innocent  of  the  crime,  and  that 
this  presumption  remains  until  it  is  over- 
come by  the  proof,  so  that  it  will  correct  an 
error  in  refusing  a  request  for  the  latter 
instruction.  Thomas  v.  United  States,  17: 
720,  156  Fed.  897,  84  C.  C.  A.  477. 

By  verdict. 

860.  The  error,  if  any,  in  giving  an  in- 
struction which  may  tend  to  mislead  the 
jury  is  cured  bj'  a  special  finding  which 
clearly  shows  that  the  instruction  has  been 
properly  understood.  St.  Louis  &  S.  F.  R. 
Co.  V.  Beets,  10:  571,  89  Pac.  683,  75  Kan. 
295. 

861.  A  judgment  will  be  affirmed,  al- 
though erroneous  instructions  were  given, 
where  it  is  clear  that  they  were  disregarded 
by  the  jury,  who  rendered  substantial  jus- 
tice by  their  verdict,  which  was  based  upon 
sufficient  evidence,  and  was  not  afTected  by 
the  other  errors  complained  of.  Whitney 
v.  Brown,  11:  468,  90  Pac.  277,  75  Kan.  678. 

862.  Errors  in  the  giving  and  refusal  of 


APPEAL  AND  ERROR,  VII.  k,  5—1,  1. 


116 


instructiona  in  a  case  in  which  the  verdict 
is  the  only  one  that  could  have  been  given 
under  the  evidence,  owing  to  its  conclusive- 
ness, are  not  prejudicial,  and  may  be  dis- 
regarded as  being  harmless.  Reilly  v. 
Nicoll,  47:  1 199,  77  S.  E.  897,  72  W.  Va.  189. 

863.  Error  in  instructing  the  jury  that  in- 
toxication is  generally  no  excuse  for  the 
commission  of  homicide,  "but  rather  an  ag- 
gravation of  the  offense,"  will  not  require 
reversal  where  it  is  apparent  that  it  did  no 
injury  to  the  accused,  because  the  jury  in- 
flicted the  lowest  punishment  prescribed  by 
statute  for  the  offense.  Atkins  v.  State, 
13:  1031,   105  S.  W.  353,  119  Tenn.  458. 

864.  Failure  to  take  from  the  jury  the 
question  of  murder  in  the  first  degree  on 
a  trial  for  homicide,  is  not  subject  to  review 
in  favor  of  the  accused,  if  the  verdict  is 
murder  in  the  second  degree,  btate  v. 
Meyers,  33:  143,   110  Pac.  407,  57  Or.  50, 

5.  Talcing  case  from  d'^ry. 

(See   also   same    heading   in   Digest   L.R.A. 

1-10.) 

865.  Going  on  with  the  case  without  again 
raising  the  question  waives  the  benefit  of 
an  exception  to  a  refusal  to  take  the  case 
from  the  jury  at  the  close  of  plaintiff^'s  evi- 
dence. Bernheimer  v.  Becker,  3:  221,  62  Atl. 
526,  102  Md.  250. 

866.  An  exception  to  a  ruling  denying 
judgment  at  the  close  of  plaintiff's  evidence 
is  waived  by  the  introduction  of  evidence 
by  defendant.  Hilton  Lumber  Co.  v.  At- 
lantic Coast  Line  R.  Co.  6:  225,  53  S.  E.  823, 
141  N.  C.  171. 

867.  Proceeding  with  the  trial  after  re- 
fusal of  the  court  to  take  the  case  from  the 
jury  waives  the  exception  taken  to  sucii  re- 
fusal. Jarrell  v.  Young,  Smyth,  Field  Co. 
23:  367,  66  Atl.  50,  105  Md.  280. 
Nonsuit. 

868.  The  refusal  of  a  nonsuit  for  failure 
of  proofs  is  not  ground  for  reversal  if  said 
proofs  are  afterwards  supplied  by  either 
party  in  the  progress  of  the  trial.  Dennery 
V.  Great  Atlantic  &  Pacific  Tea  Co.  (N.  J. 
Err.  &  App.)  39:  574,  81  Atl.  861,  82  N.  J. 
L.  517. 

869.  Error  in  denying  motion  for  nonsuit 
at  the  close  of  plaintiff's  evidence  is  cured 
by  the  introduction  of  evidence  by  defend- 
ant which  supplies  defects  in  plaintiff's 
proof.  Lyon  v.  United  Moderns,  4:  247,  83 
Pac.  804,  148  Cal.  470. 

870.  If,  at  the  time  of  the  denial  of  a  mo- 
iion  for  nonsuit,  the  proofs  are  insufficient 
to  sustain  a  verdict  for  plaintiff,  defendant 
by  proceeding  with  his  evidence  waives  his 
motion  only  to  the  extent  of  allowing  plain- 
tiff the  benefit  of  the  evidence  he  may  intro- 
duce, and  a  nonsuit  may  be  granted  even 
on  appeal  if  the  entire  evidence  does  not 
support  the  cause  of  action.  Dimuria  v. 
Seattle  Transfer  Co.  22:471,  97  Pac.  657, 
50  Wash.  633. 

Directing  verdict. 

871.  A  motion  by  defendant  for  directed 
verdict  is  waived  by  introduction  of  evi-' 
Digest  1-52  I..R.A.(N.S.) 


dence.  Fred  W.  Wolf  Co.  t.  Monarch  Re- 
frigerating Co.  50:  808,  96  N.  E.  1063,  252 
111.   491. 

872.  The  erroneous  denial  of  defendant's 
motion  for  a  directed  verdict,  made  at  the 
close  of  plaintiff's  case  in  chief,  is  waived 
where  defendant  subsequently  introduces  ev- 
idence, and  does  not  renew  his  motion  at  the 
close  of  all  the  evidence.  Madson  v.  Rutten, 
13:  554,  113  N.  W.  872,  16  N.  D.  281. 

6.  Refusal  to  change  venue. 

873.  Error  in  refusal  to  award  a  change 
of  venue  in  a  criminal  trial  is  not  cured  by 
summoning  a  jury  from  another  county, 
where  the  jury  is  permitted  to  ascertain  the 
bitterly  hostile  feeling  existing  against  ac- 
cused in  the  county  where  the  trial  takes 
place.  Shipp  v.  Com.  10:  335,  99  S.  W.  945, 
124  Ky.  643. 

I.  Review  of  facts. 

1.  In  general. 

(See  also  same   heading  in  Digest  L.R.A. 
1-10.) 

Sufficiency  of  exception  to  finding  of  fact, 
see  supra,  304. 

874.  A  judgment  will  not  be  disturbed  on 
appeal,  where  the  record  contains  some  evi- 
dence to  support  the  finding  of  the  trial 
court.  Anderson  v.  Shawnee  Compress  Co. 
15:  846,  87  Pac.  315,  17  Okla.  231. 

875.  No  question  of  fact  is  open  for  con- 
sideration on  appeal  on  the  judgment  roll 
alone.  Coats  v.  Coats,  36:  844,  118  Pac. 
441,  160  Cal.  671. 

876.  The  New  York  court  of  appeals  can- 
not find  a  fact  which  the  trial  court  failed 
to  find.  International  Text-Book  Co.  v. 
Connelly,  42:  1 115,  99  N.  E.  722,  206  N.  Y. 
188. 

877.  On  appeal,  a  special  finding  of  fact 
by  a  jury  will  not  be  disturbed  unless 
clearly  wrong.  Ryan  v.  Continental  Casu- 
alty Co.  48:524,  142  N.  W.  288,  94  Neb.  35. 

878.  Where  the  evidence  of  an  issue  of 
fact  is  conflicting,  the  court  will  not  exam- 
ine the  same  to  determine  where  the  weight 
lies.  Sands  v.  David  Bradley  &  Co.  45: 
396,   129   Pac.   732,   36   Okla.   649. 

879.  The  supreme  court  cannot  consider 
the  fact  that  testimony  of  plaintiff  in  an  ac- 
tion for  personal  injuries  is  materially  dif- 
ferent on  the  second  trial  from  what  it  was 
on  the  first  one.  Walsh  v.  Cullen,  18:  911, 
85   N.   E.   223,  235   111.   91. 

880.  The  court  of  appeals  cannot  consider 
the  question  of  the  reasonableness  of  a 
municipal  ordinance  as  one  of  fact  after  a 
finding  in  its  favor  has  been  affirmed  by 
the  appellate  division.  Rochester  v.  Ma- 
cauley-Fien  Milling  Co,  32:  554,  92  N.  E. 
641,  199  N.  Y.  207. 


lis 


APPEAL  AND  ERROR,  VII.  1,  2. 


2.  Of  verdict. 

a.  In  general. 

(See  also   same   heading  in   Digest   L'.R.A. 
1-10.) 

Presumption  as  to,  see  supra,  451-465. 
See  also  supra,  672. 

881.  Upon  appeal  from  denial  of  a  motion 
for  new  trial  because  tlie  verdict  is  against 
the  weight  of  the  evidence,  the  Michigan 
supreme  court  must  exercise  its  judgment 
as  to  the  weight  of  the  evidence.  Bernard 
V.  Grand  Rapids  Paper  Box  Co.  42:  930,  136 
N.   W.   374,   170   Mich.   238. 

882.  The  supreme  court  on  review  will 
not  disturb  the  verdict  of  the  jurj'  where 
there  is  any  substantial  evidence  reasonably 
tending  to  sustain  the  same.  Curtis  & 
Gartside  Co.  v.  Pribyl,  49:471,  134  Pac. 
71,  38  Okla.  511. 

883.  The  verdict  of  a  jury  will  not  be  re- 
versed on  appeal  if  there  is  any  credible 
evidence  to  support  it.  Corbett  v.  Physi- 
cians' Casualty  Asso.  16:  177,  115  N.  W.  365, 
135  Wis.  505. 

884.  The  appellate  court  cannot  set  aside 
a  verdict  where  there  is  evidence  tending 
to  support  it.  Kelly  v.  Lum,  49:  1151,  134 
Pac.  819,  75  Wash.  135. 

885.  Where  the  evidence  submitted 
reasonably  tends  to  support  the  verdict  of 
the  jury,  a  judgment  rendered  on  such 
verdict  is  not  reviewable  in  the  su- 
preme court.  Sands  v.  David  Bradley  &  Co. 
45:  306,  129  Pac.  732,  36  Okla.  649. 

880.  A  verdict  sustained  by  sufficient  com- 
petent evidence  will  not  be  disturbed  on 
appeal,  although  the  evidence  was  mate- 
rially conflicting.  Shepard  v.  Minneapolis 
Threshing  Mach.  Co.  18:  239,  97  Pac.  57,  50 
Wash.  242. 

887.  A  verdict  will  not  be  disturbed  unless 
there  has  been  a  plain  deviation  from  right 
and  justice,  nor,  in  a  doubtful  case,  merely 
because  the  court,  if  on  the  jury,  would  have 
rendered  a  different  verdict.  Peters  v.  Nolan 
Coal  Co.  9:  989,  50  S.  E.  735,  61  W.  Va.  392. 

888.  The  appellate  court  will  not  set 
aside  a  verdict  because  it  differs  from  the 
jury  as  to  the  relative  weight  or  effect  of 
conflicting  evidence.  Southern  P.  Co.  v. 
Hogan,  29:  813,   108   Pac.  240,   13  Ariz.   34. 

889.  That  a  verdict  is  against  the  weight 
of  the  evidence  is  not  ground  for  reversal 
if  there  is  any  credible  evidence  to  support 
it.  Estey  Organ  Co.  v.  Lehman,  11:  254,  111 
N.  W.  1097,  132  Wis.  144. 

890.  Where  there  is  a  conflict  in  the  tes- 
timony introduced  on  the  trial  of  an  ac- 
tion, the  supreme  court  will  not  reverse 
the  judgment  of  the  trial  court,  if  the  evi- 
dence of  the  successful  party,  when  con- 
sidered by  itself,  is  sufficient  to  sustain  the 
verdict.  Hobbs  v.  Smith,  34:  697,  115  Pac. 
347,  27  Okla.  830. 

891.  An  appellate  court  cannot  set  aside 
a  judgment  because  the  verdict  is  not  sup- 
ported by  sufficient  evidence,  if  there  is  sub- 
stantial evidence  to  support  it.  San  Pedro, 
Digest   1-52  I<.R.A.(N.S.) 


L.  A.  &  S.  L.  R.  Co.  v.  Salt  Lake  City  Bd. 
of  Edu.   11:  645,  90  Pac.  565,  32  Utah,  305. 

892.  A  verdict  founded  upon  conflicting 
oral  testimony  cannot  be  sot  aside  by  tlie 
court.  Lanham  v.  Meadows,  47:  592,  78 
S.  E.  750,  72  W.  Va.  610. 

893.  That  a  verdict  is  against  the  weight 
of  the  evidence  is  no  ground  for  reversal. 
Bennett  v.  Louisville  II.  Co.  4:  558,  90  S.  W. 
1052,  122  Ky.  59. 

894.  The  appellate  court  will  not  review 
a  denial  of  new  trial  on  the  ground  that 
the  verdict  is  against  tlie  weigiit  of  evi- 
dence. Lopes  v.  Connolly,  38:  986,  97  N.  E. 
80,  210  Mass.  487. 

895.  The  verdict  of  a  jury  will  not  be  in- 
terfered with  on  an  appeal  because  it  is 
against  the  evidence,  if  it  is  not  flagrantly 
so.  Paducah  Traction  Co.  v.  Baker,  18: 
1185,  113  S.  W.  449,  130  Ky.  360. 

896.  A  judgment  only  slightly  supported 
by  the  evidence,  or  manifestly  against  its 
weight,  or  not  supported  by  clear  and  con- 
vincing testimony,  which  the  prevailing  par- 
ty has  the  burden  of  producing,  cannot  be 
permitted  to  stand  on  appeal.  Geier  v. 
Howells,  27:  786,  107  Pac.  255,  47  Colo.  345. 

897.  In  determining  whether  or  not  the 
evidence  supports  the  verdict,  the  supreme 
court  will  not  consider  the  facts  specially 
found  bv  the  jury.  Chicago,  I.  &  L.  R.  Co. 
V.  Pritchard,  9:  857,  79  N.  E.  508,  168  Ind. 
398. 

898.  A  verdict  for  defendant  will  not  be 
disturbed  on  appeal  where  the  allegations 
of  his  answer  state  a  good  defense  and  are 
supported  by  evidence  reasonably  tending 
to  sustain  them.  Mt.  Hope  Nurseries  v. 
Jackson.  45:  243,  128  Pac.  250,  36  Okla.  273. 

899.  The  court  on  appeal  cannot  inquire 
whether  or  not  a  finding  by  the  jury  which 
is  permitted  to  remain  a  part  of  the  ver- 
dict is  supported  by  the  evidence.  Green 
V.  Miller,  44:  231,  76  S.  E.  505,  161  N.  C.  24. 

900.  A  new  trial  will  not  be  granted  be- 
cause the  appellate  court  believes  that  the 
jury  erroneously  decided  a  question  of  fact 
on  conflicting  evidence.  Earle  v.  Berry, 
i:  867,  61  Atl.  671,  27  R.  L  221. 

901.  An  appellate  court  will  not  interfere 
with  a  finding  by  the  jury,  supported  by 
substantial  evidence,  to  the  eff'ect  that  serv- 
ices rendered  by  an  adult  child  to  its  par- 
ent were  not  to  be  gratuitous.  Mathias 
V.  Tingey,  38:  749,  118  Pac.  781,  39  Utah, 
561. 

902.  Where  evidence  reasonably  tends  to 
connect  one,  as  an  aider  and  abetter,  with 
a  battery,  the  court  will  not  disturb  a  ver- 
dict against  him  for  damages  for  injuries 
sustained  thereby.  Perrine  v.  Hanacek, 
51:  718,  138  Pac.  148,  40  Okla.  359. 

903.  An  assignment  of  error  in  refusing 
to  grant  a  peremptory  instruction  for  de- 
fondant  raises  the  question  whether  or  not 
there  is  in  the  record  any  evidence  which, 
together  with  the  inferences  reasonably  to 
be  drawn  therefrom,  is  sufficient  to  support 
a  verdict  for  plaintiff.  Sherwin  v.  Aurora, 
43:  1 1 16,  100  N.  E.  938,  257  111.  458. 

904.  The  appellate  court  will  not  interfere 
with   a  verdict   rendered  under   proper  in- 


APPEAL  AND  ERROR,  VII.  1,  2. 


117 


structions  that  a  tender  of  an  amount  due 
under  a  chattel  mortgage  was  made  before 
sale  by  mortgagee,  and  the  rights  of  tlie 
parties  making  it  were  disclosed  to  the 
mortgagee  or  the  officer  conducting  the  sale. 
Thomas  v.  Seattle  Brewing  &  Malting  Co. 
15:  1 164,  94  Pac.  116,  48  Wash.  560. 

905.  A  decree  in  an  action  to  foreclose  a 
mortgage,  that  a  defendant  grantee  "as- 
sumed and  agreed  to  pay  the  complainant's 
mortgage  indebtedness,"  will  not  be  reversed 
on  the  ground  that  it  is  not  sustained  by  the 
evidence,  where  there  is  corroborated  testi- 
mony to  the  effect  that  defendant  assumed 
the  mortgage  debt  as  a  part  of  the  consid- 
eration for  the  conveyance  to  him.  Herrin 
V.  Abbe,  18:  907,  46  So.  183,  55  Pla.  769. 

906.  A  jury  finding  in  accordance  with 
plaintiff's  evidence,  that  two  skylights, 
each  6  feet  long  and  3  feet  wide,  together 
with  an  opening  in  the  wall  7  feet  by  4 
feet,  and  two  windows,  all  located  in  that 
part  of  a  room  16  feet  by  32  feet,  with  an 
"L"  16  feet  square,  in  which  was  located 
a  hot  water  vat  level  with  the  floor,  into 
wliich  plaintiff,  a  servant,  while  working 
in  such  room,  stepped,  to  his  injury,  did 
not  admit  sufficient  light  to  enable  him  to 
see  the  vat,  is  not  so  contrary  to  the 
physical  facts  as  to  require  a  reversal, 
where  neither  the  location  in  the  room  nor 
the  dimensions  of  a  brine  tank,  which  it 
is  claimed  obstructed  the  light,  appears, 
and  there  is  evidence  tending  to  show  that 
the  skylights  were  obscured  by  dirt  and 
smoke,  that  there  was  a  pile  of  lumber 
which  also  cut  off  some  of  the  light,  and 
that  a  slight  vapor  was  rising  from  the 
hot  water  vat,  although  the  accident  oc- 
curred shortly  after  noon  on  a  January 
day,  the  record  not  showing  as  to  whether 
the  day  was  bright  and  clear  or  dark  and 
gloomy.  Wichita  Ice  &  C.  S.  Co.  v.  Shep- 
pard,  28:  648,  108  Pac.  819,  82  Kan.  509. 

907.  A  verdict  against  increase  of  hazard 
by  change  of  business  on  insured  premises 
is  conclusive  on  appeal.  McClure  v.  Mutual 
F.  Ins.  Co.  48:  1221,  88  Atl.  921,  242  Pa. 
69. 

908.  A  finding  by  the  jury  that  the  death 
of  an  insured  was  accidental  within  the 
meaning  of  a  policy  void  in  case  of  self  de- 
struction of  insured  will  not  be  disturbed  on 
appeal,  where,  although  some  evidence  points 
to  self  destruction,  other  items  clearly  nega- 
tive that  theory.  O'Connor  v.  Modern  Wood- 
men of  America,  25:  1244,  124  N.  W.  454, 
110  Minn.  18. 

909.  Where  the  charter  of  a  fraternal 
benefit  association  does  not  require  that  a 
"dependent"  must  be  a  member  of  the 
family,  heir  or  blood  relation  of  the  mem- 
ber, evidence  that  one  who  took  out  a  bene- 
fit certificate  in  such  an  association,  naming 
therein  as  beneficiary  his  affianced  wife, 
contributed  regularly  toward  her  support 
as  his  affi&nced  wife,  and,  she,  being  un- 
able to  earn  a  living,  relied  upon  such  sup- 
port, is  sufficient  to  justify  a  verdict  find- 

•ing  that  such  affianced  wife  is  a  dependent, 
and  this  being  a  proper  quei^tion  for  the 
jury,  such  a  verdict  will  not  be  disturbed. 
Dieest  1-52  KR.A.(N.S.) 

/ 


Sovereign  Camp  W.  of  W.  v.  Noel,  41:  648, 
120  Pac.  787,  34  Okla.  596. 
Froximate  cause. 

910.  In  determining  a  question  of  proxi- 
mate cause,  the  appellate  court  cannot  re- 
ject testimony  of  a  witness  that,  at  the  time 
of  the  accident,  a  machine  which  caused 
the  injury  ran  faster  than  ever  before,  as 
unworthy  of  belief.  Tuckett  v.  American 
Steam  &  Hand  Laundry,  4:  990,  84  Pac. 
500,  30  Utah,  273. 

911.  Where,  in  an  action  by  the  bene- 
ficiary against  a  fraternal  accident  associa- 
tion, there  is  evidence  tending  to  show  that 
the  proximate  cause  of  t^e  death  of  the 
assured  was  a  rupture  of  the  left  auricle  of 
the  heart  occasioned  by  his  accidentally 
falling  and  striking  his  body  on  a  large 
stone,  although  there  is  other  and  confiict- 
ing  evidence  as  to  the  condition  of  the  as- 
sured's  health  and  the  probable  cause  of 
his  death,  a  verdict  against  the  association 
will  be  sustained.  Moon  v.  Order  of  United 
Commercial  Travelers,  52:  1203,  146  N.  W. 
1037,  96  Neb.  65. 

Findius  contrary  to  scientific  facts  or 
natural   lavrs. 

912.  A  finding  by  the  jury  of  a  double 
automatic  stroke  by  a  steam  hammer  will 
be  set  aside  on  appeal  where  the  hammer, 
weighing  1,250  pounds,  was  operated  by  a 
piston  arm  working  in  a  cylinder  and  driven 
by  a  pressure  of  70  to  90  pounds  of  steam 
to  the  square  inch,  which  was  controllable 
only  by  a  hand  lever,  and  no  defect  is  shown 
in  the  mechanism ;  since  there  could  be  no 
rebound  or  double  stroke  to  a  hammer  of 
that  character  without  the  operation  of  the 
controlling  lever.  Chybowski  v.  Bucyrus  Co. 
7:  357,  106  N.  W.  833,  127  Wis.  332. 

( Annotated ) 

913.  To  justify  an  appellate  court  in 
overturning  a  verdict,  tending  to  support 
which  there  is  some  evidence,  on  the  ground 
that  it  is  contradicted  by  the  natural  laws 
or  by  some  established  principle  of  mathe- 
matics, mechanics,  physics,  or  the  like,  the 
indisputable  physical  facts  must  demon- 
strate beyond  any  reasonable  doubt  that 
the  evidence  is  false  and  that  the  verdict 
is  without  support  in  fact  or  law.  Wich- 
ita Ice  &  C.  S.  Co.  V.  Sheppard,  28:  648, 
108  Pac.  819,  82  Kan.  509. 
Negligence. 

914.  The  appellate  court  will  not  permit  a 
jury  to  give  damages  to  one  person  and 
withhold  them  from  another  upon  the  same 
evidence  in  an  action  for  damages  for  per- 
sonal injuries  upon  their  conclusion  as  to 
his  intelligence  from  his  personal  appear- 
ance, on  the  theory  that,  the  jury  having 
the  witness  before  them,  their  finding  is 
binding  upon  the  appellate  court.  Rabies 
V.  J.  Thompson  &  Sons  Mfg.  Co.  23:  296, 
118  N.  W.  350,  119  N.  W.  289,  137  Wis.  506. 

915.  In  an  action  against  a  railroad  com- 
pany and  its  engineer  for  negligently  kill- 
ing a  person  on  the  track,  where  the  negli- 
gence of  the  company  in  running  the  train 
at  excessive  speed  is  clearly  established,  a 
verdict  against  it  and  in  favor  of  tl>e  engi- 


118 


APPEAL  AND  ERROR,  VII.  1,  2. 


neer  will  not  be  disturbed  on  appeal,  where 
the  jury  may  have  found  that  the  engineer 
acted  as  a  prudent  man  in  attempting  to 
avoid  tlie  accident  after  the  peril  was  dis- 
covered. Illinois  C.  R.  Co.  v.  Murphj',  ii: 
352,  97  S.  W.  729,  123  Ky.  787. 

916.  Where  the  verdict  of  the  jury  shows 
that  it  accepted  the  evidence  given  on  be- 
half of  the  plaintiff  that  two  whistle  blasts 
were  given  by  the  motorman,  indicating 
that  he  was  going  to  stop  at  a  crossing,  and 
there  \^ia8  evidence  that  on  account  of  the 
brilliancy  of  the  headlight  it  was  impos- 
sible to  judge  of  the  rate  of  speed  of  the 
car  or  its  distance  from  the  crossing,  it 
cannot  be  said  as  a  matter  of  law  that  a 
person  struck  and  killed  at  night  while 
crossing  the  track  in  front  of  an  approach- 
ing car  for  the  purpose  of  boarding  it  was 
guilty  of  contributory  negligence.  Sim- 
oneau  v.  Pacific  Electric  R.  Co.  49:  737, 
336  Pac,  544,  166  Cal.  264. 

917.  On  appeal  it  cannot  be  said  that  an 
intending  passenger  was  negligent,  as  mat- 
ter of  law,  in  attempting  to  board  a  mov- 
ing train  immediately  after  the  call  "All 
atward"  was  given,  where  the  jury  have 
resolved  all  the  issues,  including  that  of 
contributory  negligence,  in  favor  of  such 
passenger.  Irvin  v.  Missouri  P.  R.  Co.  26: 
739,  106  Pac.  1063,  81  Kan.  649. 

918.  Where  the  evidence  in  an  action  for 
injuries  resulting  from  an  automobile,  in 
which  the  plaintiff  was  riding,  being  driven 
over  an  embankment,  shows  that  the  acci- 
dent happened  in  broad  daylight  on  a  good 
road,  wide  enough  for  two  vehicles,  and 
where  there  was  no  obstruction  and  no  other 
vehicle  on  the  road,  and  when  the  car  was 
in  good  condition;  and  further  shows  that 
the  driver  had  at  times  before  been  driv- 
ing carelessly  and  too  near  the  edge  of  the 
road;  and  the  only  explanation  of  the  driv- 
er is  that  it  was  a  hot  day  and  he  was 
taken  with  a  period  of  dizziness,  which 
came  on  suddenly  and  lasted  but  for  a  mo- 
ment,— a  finding  by  the  jury  that  the  driver 
was  guilty  of  negligence  will  not  be  dis- 
turbed on  appeal.  Meyers  v.  Tri-State  Auto- 
mobile Co.  44:  113,  140  N.  W.  184,  121  Minn. 
68. 

Criminal  cases. 

919.  A  conviction  on  conflicting  evidence 
will  not  be  reversed  because  the  appellate 
court  may  think  it  is  against  the  weight  of 
evidence.  Williams  v.  State,  2:248,  75  N. 
E.  875,  165  Ind.  472. 

920.  In  a  criminal  prosecution,  where 
there  is  sufficient  competent  evidence  to  sus- 
tain a  conviction,  the  appellate  court  cannot 
interfere  on  the  ground  that  such  conviction 
is  unsupported  by  the  evidence.  Pumphrey 
V.  State,  23:  1023,  122  N.  W.  19,  84  Neb.  636. 

921.  The  appellate  court  will  not  disturb 
a  conviction  where  the  question  of  credibil- 
ity of  witnesses  and  the  weight  to  be  given 
to  the  testimony  is  for  the  jury,  if  there  is 
any  unimpeached  evidence  to  sustain  the 
verdict.  Andrews  v.  State,  42:  747,  141  S. 
W.  220,  64  Tex.  Crfm.  Rep.  2. 

922.  The  appellate  court  will  set  aside  a 
conviction  approved  by  the  trial  judge,  for 
Digest  1-52  I..R.A.(N.S.) 


insufficiency   of  evidence,  if  it  is  convinced 
that  the  evidence  is  not  sufficient  to  war-  ■ 
rant  a  conviction.     State  v.  Pienick,  11:  987,. 
90  Pac.  645,  46  Wash.  522. 

923.  A  conviction  depending  mainlj^  on  tes- 
timony of  an  accomplice  cannot  be  sus- 
tained if  the  accomplice  also  suore  that  his 
testimony  was  false.  Hill  v.  State,  21:  878, 
117  S.  W.  134,  55  Tex.  Crim.  Rep.  407. 

(Annotated) 

924.  A  verdict  of  guilty  upon  the  uncor- 
roborative  testimony  of  an  accomplice  is 
contrary  to  the  law  and  to  the  testimony, 
and  as  such  will  be  set  aside.  Head  v. 
State,  44:  871,  131  Pac.  937,  9  Okla.  Crim. 
Rep.  356. 

925.  An  appellate  court  must  consider 
whether  or  not  a  witness  was  an  accom- 
plice of  accused,  when  an  appeal  from  a  con- 
viction is  upon  the  ground  that  the  con- 
viction was  based  upon  the  uncorroborated 
testimony  of  an  accomplice.  People  v.  Cof- 
fey, 39:704,  119  Pac.  901,   161   Cal.  433. 

926.  If  there  is  evidence  to  support  a 
finding  by  the  jury  that  accused  is  the  one 
who  off'ered  a  stolen  horse  for  sale,  the  ap- 
pellate court  will  not  interfere  with  the 
finding,  although  there  is  evidence  tending 
to  establish  an  alibi.  Snodgrass  v.  State, 
41:  1 144,  150  S.  W.  162,  —  Tex.  Crim.  Rep. 

927.  The  production  by  one  found  in  pos- 
session of  property  recently  stolen,  of  a 
signed  and  witnessed  bill  of  sale  of  the  prop- 
erty from  a  stranger,  supported  by  unim- 
peached testimony  of  himself  and  the  wit- 
nesses that  he  purchased  and  paid  for  it, 
is  not  sufficient  to  overcome  the  statutory 
presumption  of  larceny  arising  from  such 
possession,  so  as  to  authorize  the  setting 
aside  of  a  conviction  for  lack  of  evidence  to 
support  it.  State  v.  Gurr,  39:  320,  120  Pac. 
209,  40  Utah,  162.  (Annotated) 

928.  A  conviction  of  manslaughter  will 
not  be  reversed  because  accused  should 
have  been  convicted  of  murder  or  acquit- 
ted, since  the  right  to  fix  the  degree  of 
crime  of  which  accused  is  guilty  rests  with 
the  jury.  Warren  v.  State,  34:  1121,  115 
Pac,  812,  6  Okla.  Crim.  Rep,  1. 

929.  Assignments  of  error  which  chal- 
lenge the  sufficiency  of  the  evidence  to  war- 
rant a  conviction  cannot  be  considered  by 
the  Federal  Supreme  Court  on  a  writ  of 
error  to  the  supreme  court  of  the  Philip- 
pine Islands,  to  review  a  judgment  affirm- 
ing such  conviction,  where  it  is  not  con- 
tended that  there  was  no  evidence  of  guilt, 
since  only  errors  of  law  can  be  considered 
upon  a  writ  of  error.  Ling  Su  Fan  v.  Unit- 
ed States,  30:  1 176,  31  Sup.  Ct.  Rep.  21, 
218  U.  S.  302,  54  L.  ed.  1049. 

930.  The  legal  presumption  of  the  sanity 
of  one  accused  of  crime  is  not  sufficient  evi- 
dence in  support  of- a  conviction  to  prevent 
a  reviewing  court  from  interfering  with  a 
verdict  of  guilt,  where  an  overwhelming 
mass  of  uncontradicted  evidence  which  ad- 
mits of  but  one  conclusion  shows  that  ac-. 

'  cused  was  insane  when  the  offense  was  com- 


APPEAL  AND  ERROR,  VII.  1,  2. 


11» 


mitted.     State  v.  Brown,  24:  545,   102  Pac. 
641,  36  Utah,  46. 

931.  A  verdict  convicting  defendant  of 
forgery  will  not  be  disturbed  on  appeal,  al- 
though based  on  circumstantial  evidence, 
when  the  proof  was  sufficient  to  authorize 
the  verdict,  which  was  approved  by  the  trial 
judge.  Walker  v.  State,  8:  1175,  56  S.  E. 
113,  127  Ga.  48. 

932.  In  a  murder  trial  where  the  evi- 
dence is  wholly  circumstantial,  a  verdict  of 
guilty  will  not  be  set  aside  as  based  on  in- 
sufficient evidence  or  as  being  contrary  to 
the  evidence,  which  was  conflicting  and  in- 
volved the  credibility  of  witnesses,  when  the 
court  can  see  that  the  jury  may  have  found 
from  the  evidence  facts  sufficient  to  bring 
the  case  within  the  rule  prescribing  the 
quantum  of  circumstantial  evidence  neces- 
sary to  a  conviction,  and  requiring  that 
the  facts  and  circumstances  shown  must  be 
consistent  with  the  hypothesis  of  guilt,  in- 
consistent with  every  other  hypothesis,  and 
conclusive  in  their  nature  and  tendency. 
State  V.  Kidwell,  13:  1024,  59  S.  E.  494,  62 
W.  Va.  466. 

b.  As  to  damages  and  values. 

(See  also  same   heading  in  Digest  L.R.A. 

1-10.) 

As  to  measure  of  damages  generally,  see 
Damages,  III. 

Instances  of  excessive  amounts,  see  Dam- 
ages, 48,  58,  73,  240,  241,  261,  263,  264, 
273-277,  281,  314,  337,  339,  341,  342, 
346,  404-444,  478,  499,  653,  656. 

See  also  supra,  914. 

933.  If  a  verdict  is  not  in  excess  of  the 
demand  of  plaintiff's  complaint,  and  no 
error  appears  in  the  admission  of  evidence 
or  instructions  of  the  court,  and  there  is 
any  evidence  tending  to  prove  the  amount 
of  damages,  the  supreme  court  will  not 
examine  the  evidence  to  ascertain  whether 
the  verdict  is  excessive  or  not,  where  the 
defendant  fails  or  refuses  to  submit  evi- 
dence. North  v.  Woodland,  6:  921,  85  Pac. 
215,  12  Idaho,  50. 

934.  The  verdict  of  a  jury  should  not  be 
set  aside  on  the  ground  that  it  is  excessive, 
unless  it  clearly  appears  that  the  jury  have 
committed  some  gross  and  palpable  error, 
or  have  acted  under  some  improper  bias,  in- 
fluence, or  prejudice,  or  have  mistaken  the 
rules  of  law  stating  the  measure  of  dam- 
ages. Arkansas  Valley  &  W.  R.  Co.  v.  Witt, 
13:  237,  91  Pac.  897,  19  Okla.  262. 

935.  The  court  has  the  same  power  to  set 
aside  a  verdict  when  excessive,  in  cases  in- 
volving punitive  damages,  as  it  has  when 
only  compensation  is  recovered;  and  this 
will  be  done  in  every  case  where  the  verdict 
appears  to  have  been  due  to  passion  or  preju- 
dice. Louisville  &  N.  R.  Co.  v.  Brown,  13: 
1135,    106    S.   W.    795,    127   Ky.    732. 

936.  An  appellate  court  cannot  interfere 
with  an  award  of  damages  for  lack  of  evi- 
dence to  support  it,  except  in  a  case  of 
Disest  1-52  ]J.R.A.(N.S.) 


plain  deviation  from  or  palpable  insuffi- 
ciency of  evidence.  Arminius  Chemical  Co. 
V.  Landrum,  38:  272,  73  S.  E.  459,  113  Va. 
7. 

937.  The  amount  of  a  verdict  will  not  be 
disturbed  on  appeal  if  supported  by  evi- 
dence which  may  have  been  believed  by  the 
jury.  Savov  v.  McLeod,  48:  971,  88*  Atl. 
721,  111  Me.'  234. 

938.  A  general  verdict  in  favor  of  one 
entitled  to  actual  and  punitive  damages, 
and  interest  on  the  former,  with  nothing  to 
show  its  component  parts,  cannot  be  cor- 
rected on  appeal  so  as  to  be  allowed  to 
stand,  if  there  is  nothing  to  show  whether 
or  not  interest  was  computed  on  the  allow- 
ance of  punitive  damages.  Dunsliee  v. 
Standard  Oil  Co.  36:  263,  132  N.  W.  371,  152 
Iowa,  618. 

939.  Where  there  is  a  direct  invasion  of 
personal  rights  under  circumstances  show- 
ing malice,  or  a  wilful  and  wanton  disre- 
gard of  another's  right  to  personal  securi- 
ty, the  amount  of  compensatory  damages  is 
not  susceptible  of  exact  computation,  and 
must  usually  be  left  to  the  sound  discre- 
tion of  the  jury.  Kurpgeweit  v.  Kirby, 
33:  98,  129  N.  W.  177,  88  Neb.  72. 

940.  Where  there  is  conflicting  evidence 
as  to  the  amount  of  the  loss  upon  destruc- 
tion of  a  building  by  fire,  the  mere  fact  that 
the  trial  court  adopted  the  highest  estimate 
of  the  witnesses  for  the  insured  is  no 
ground  for  a  claim  of  error.  Kinzer  v.  Na- 
tional Mut.  Ins.  Asso.  43:  121,  127  Pac.  762, 
88  Kan.  93.  , 
Eminent  domain  cases.  />-••■■■ 

941.  An  award  of  damages  in  a  condemna- 
tion proceeding  will  not  be  disturbed  on  ap- 
peal if  there  is  evidence  to  sustain  it.  Boyne 
City,  G.  &  A.  R.  Co.  v.  Anderson,  8:  306,  109 
N.  W.  429.  146  Mich.  328. 

942.  The  reviewing  court  has  no  authority 
to  disturb  a  judgment  awarding  damages 
in  an  eminent  domain  proceeding,  which  is 
sustained  by  evidence.  Zehner  v.  Milner, 
24:  383,  87  N.  E.  209,  172  Ind.  493. 

943.  The  award  by  the  jury  in  eminent 
domain  proceedings  will  not  be  disturbed 
on  appeal  in  the  absence  of  anything  to  in- 
dicate that  it  was  the  result  of  passion  or 
prejudice.  Henderson  v.  Lexington,  22:  20, 
111  S.  W.  318,  132  Ky.  390. 

944.  In  case  of  railroad  crossings,  where 
nothing  is  actually  taken  but  the  joint 
use  of  small  portions  of  spur  tracks,  and 
the  injury  to  the  remainder  for  railroad 
purposes  is  doubtful  and  uncertain,  the 
award  of  a  jury  of  freeholders  of  the  vici- 
nage, who  have  inspected  the  proposed  cross- 
ings, and  who  are  familiar  with  all  the 
surroundings,  will  not  be  disturbed  as  to 
amount.  Kansas  City,  S.  &  G.  R.  Co.  v. 
Louisiana  W.  R.  Co.  5:  512,  40  So.  627,  116 
La.  178. 

Personal  injnries. 

Instances  of   excessive   amounts,   see   Dam- 
ages, III.  i,  4. 

945.  The  appellate  court  will  not  set  aside 
as  excessive  a  verdict  allowing  damages  for 
negligent  injuries,  unless  it  smacks  of  bias 
or  prejudice,  or  is  so  unreasonable  that  it 


320 


APPEAL  AND  ERROR,  VII.  1,  3. 


ought  not  to  stand.  O'Gara  v.  St.  Louis 
Transit  Co.  12:  840,  103  S.  W.  54,  204  Mo. 
724. 

946.  The  amount  awarded  as  damages 
for  personal  injuries  will  not  be  disturbed 
on  appeal  upon  evidence  of  a  medical  ex- 
pert which  is  absurd  and  unnatural.  Savoy 
V.  McLeod,  48:971,  88  Atl.  721,  111  Me.  234. 

947.  The  trial  court  cannot  refuse  to  en- 
ter judgment  for  the  amount  allowed  by  a 
jury  to  a  parent  as  pecuniary  loss  for  de- 
privation of  society,  comfort,  and  protection 
of  a  minor  son  killed  by  another's  neg- 
ligence, in  accordance  with  correct  instruc- 
tions given  by  it,  in  the  absence  of  motion 

.for  new  trial  for  lack  of  evidence  to  sup- 
port it,  or  unless  the  amount  is  so  obvi- 
ously the  result  of  passion  and  prejudice 
as  to  justify  the  court  in  ordering  a  new 
trial  of  its  own  motion.  Bond  v.  United 
Railroads,  48:  687,  113  Pac.  366,  159  Cal. 
270. 
Goods   lost  in   transportation. 

948.  A  verdict  for  the  full  value  of 
merchandise  lost  while  in  the  carrier's 
possession  for  transportation  will  not  be 
disturbed  where  the  defense  was  that  the 
loss  was  caused  by  an  unprecedented  flood, 
and  the  carrier  discharges  the  burden  of 
proving  that  the  flood  caused  the  loss,  and 
that  the  goods  were  totally  destroyed  there- 
by, only  to  the  extent  of  showing  that  the 
goods  were  not  identified  after  the  flood,  and 
that  all  of  the  freight  except  the  perishable 
goods  that  could  not  be  delivered  had  sup- 
posedly or  probably  been  sent  to  the  claim 
department,  and  there  is  no  showing  made 
from  that  department  with  reference  there- 
to. Chicago,  R.  I.  &  P.  R.  Co.  v.  Logan, 
Snow,  &  Co.  29:  663,  105  Pac.  343,  23  Okla. 
707. 

949.  A  judgment  for  a  property  owner 
against  a  carrier  for  goods  lost  in  trans- 
portation will  not  be  disturbed  on  appeal 
for  lack  of  evidence,  although  it  is  based 
on  an  arbitrary  reduction  of  the  cost  price 
of  the  property,  which  was  several  years 
old,  where  defendant  admitted  a  value  near- 
ly as  great  as  that  awarded,  and  offered 
no  evidence  on  the  question.  Kettenhofen 
V.  Globe  Transfer  &  Storage  Co.  42:  902,  127 
Pac.  295,  70  Wash.  645. 

3.  Of  findings,  of  court. 

a.  In  general. 

(See   also    same   heading   in  Digest   L.R.A. 
1-10.) 

Presumption  as  to,  see  supra,  451-465. 
See  also  supra,  506,  665. 

950.  A  judgment  sustained  by  the  evi- 
dence will  not  be  reversed  on  appeal.  Sief- 
ker  v.  Paysee,  4:  119,  40  So.  366,  115  La. 
953. 

951.  A  finding  of  the  trial  court,  support- 
ed by  substantial  evidence,  will  not  be  over- 
thrown. National  Bank  v.  Duff,  16:  1047, 
94  Pac.  260,  77  Kan.  248. 

Digest  1-52  L.R.A.(N.S.) 


952.  A  finding  by  the  court,  based  upon  < 

sulllcient  evidence,  will  not  be  disturbed  on  ) 
appeal,  where  the  testimony  is  sharply  con- 
flicting.    Canadian  Fisli  Co.  v.  McShane,  14: 
443,  114  N.  VV.  594,  80  Neb.  551. 

953.  The  conclusion  drawn  by  the  trial 
court  from  conflicting  inferences  to  which 
the  evidence  is  subject  is  conclusive  upon 
the  appellate  court.  Mentone  Irrigation  Co. 
V.  Redlands  Electric  Light  &  P.  Co.  22:  382, 
100  Pac.  1082,  155  Cal.  323. 

954.  The  findings  of  the  trial  court  will 
be  accepted  as  conclusive,  unless  tlie  evi- 
dence preponderates  against  them.  Duugan 
V.  Seattle,  51:  214,  136  Pac.  1165,  76  Wash. 
621. 

955.  The  findings  of  a  trial  judge,  made 
upon  the  testimony  of  witnesses  who  ap- 
peared before  him,  will  be  followed  by  the 
court  in  banc  unless  they  are  plainly  wrong. 
Evans  v.  Foss,  9:  1039,  80  N.  E.  587,  194 
Mass.  513. 

956.  The  reviewing  court  is  bound  by  the 
findings  of  fact  by  tlie  trial  court,  where  it 
disposes  of  the  case  upon  motions  for  di- 
rected verdicts,  if  there  is  any  evidence  in 
support  thereof.  Interstate  L.  Assur.  Co. 
v.  Dalton,  23:  722,  165  Fed.  176,  91  C.  C.  A. 
210. 

957.  If,  in  considering  all  parts  of  a  spe- 
cial finding  relative  to  the  same  matter  to- 
gether, the  finding' can  be  said  to  be  suffi- 
cient, it  will  be  upheld.  Mount  v.  Mont- 
gomery County,  14:  483,  80  N.  E.  629,  168 
Ind.  661. 

958.  The  appellate  court  will  not  under- 
take to  weigh  conflicting  evidence  covering 
600  printed  pages  to  determine  wliether  it 
supports  the  findings  of  the  trial  court,  even 
though  authorized  by  statute  to  do  so. 
Karges  Furniture  Co.  v.  Amalgamated 
Woodworkers'  Local  Union  No.  131,  2:  788, 
75  N.  E.  877,  165  Ind.  421. 

959.  That  the  findings  of  fact  by  the  trial 
court  upon  a  former  trial  of  the  case  differ 
from  those  made  at  the  trial  from  which 
the  appeal  is  taken  is  unimportant  upon  the 
binding  effect  of  the  last  finding  upon  the 
appellate  court.  Cohen  v.  La  Canada  Land 
&  Water  Co.  11:  752,  91  Pac.  584,  151  Cal. 
680. 

960.  A  finding  of  fact  by  the  court  based 
upon  disputed  oral  testimony,  while  of 
weight  with,  is  not  controlling  upon,  the 
appellate  court.  Lantz  v.  Moeller,  50:  68, 
136  Pac.  687,  76  Wash.  429. 

961.  The  findings  of  the  trial  judge,  al- 
though not  binding  as  a  jury  verdict  upon 
trial  de  novo  in  the  appellate  court,  will 
not  be  disturbed  when  based  upon  conflict- 
ing evidence,  unless  clearly  against  its 
weight.  Johns  v.  Arizona  F.  Ins.  Co. 
49:  loi,   136   Pac.   120,   76  Wa.h.   349. 

962.  In  a  cause  tried  to  the  court,  a  gen- 
eral finding  includes  the  finding  of  all  facts 
necessary  to  constitute  the  claims  of  the 
party  in  whose  behalf  the  judgment  is  ren- 
dered, and  upon  appeal  the  court  will  not 
review  the  evidence  upon  which  such  find- 
ing is  made,  to  determine  its  sufficiency. 
Horner  v.  Spencer,  17:  622,  95  Pac.  757,  21 
Okla.  155. 


APPEAL  AND  ERROR,  VII.  1,  3. 


121 


963.  In  a  case  tried  to  the  court,  where,  | 
on  request,  findings  of  fact  are  made,  and 
it  is  contended  on  appeal  that  a  certain  ma- 
terial finding  is  not  sustained  by  the  evi- 
dence, and  that  in  fact  all  the  evidence 
negatived  such  finding,  the  appellate  court 
will,  on  proper  assignment,  examine  the 
record  for  the  purpose  of  ascertaining  that 
fact,  an<l  where  the  contention  is  sustained, 
set  the  finding  aside.  Board  v.  Dill,  29:1170, 
110  Pac.   1107,  26  Okla.   104. 

964.  A   statutory   provision   that  the   su- 
preme   court    shall    review    the    conclusions 
and  judgment  of  the  trial  court  on  the  evi-  I 
dence    without    any    presumption    in     favor 

«of  the  court  below  on  the  evidence  applies 
to  criminal  as  well  as  civil,  cases.  Tony  v. 
State,  3:  1 196,  40  So.  388,  144  Ala.  87. 

965.  The  provisions  of  the  New  Jersey 
act  (P.  L.  1906,  p.  658)  authorizing  a  re- 
view of  the  facts  upon  certiorari  are  not 
applicable  to  the  court  of  errors  and  ap- 
peals, which  is  concluded  by  the  findings  of 
the  supreme  court  upon  questions  of  fact. 
Lehigh  &  W.  B.  Coal  Co.  v.  Junction  (N. 
J.  Err.  &  App.)  15:  514,  68  Atl.  806,  75  N.  J. 
L.  922. 

966.  A  decision  by  the  trial  court  that  the 
oath  to  an  information  was  administered  by 
the  clerk  instead  of  his  deputy  is  conclu- 
sive on  appeal.  State  v.  Forslia,  4:  576,  88 
S.  W.  746,  190  Mo.  296. 

967.  A  finding  by  the  trial  court,  based 
upon  conflicting  evidence  as  to  whether  or 
not  a  tunnel  intercepts  the  water  of  springs 
which  have  been  appropriated  by  complain- 
ant, is  binding  on  the  appellate  court.  Co- 
hen V.  La  Canada  Land  &  Water  Co.  11: 
752,  91  Pac.  584,  151  Cal.  680. 

968.  A  determination  of  the  trial  court, 
in  an  action  to  foreclose  a  meclianic's  lien, 
as  to  the  amount  due  a  subcontractor,  will 
not  be  disturbed,  where  the  testimony  upon 
which  the  finding  is  based  is  uncertain  and 
conflicting.  Alberti  v.  Moore,  14:  1036,  93 
Pac.  543,  20  Okla.  78. 

969.  The  determination  by  the  trial  court 
on  conflicting  evidence  that  a  broker  for 
the  sale  of  property  had  secured  a  pur- 
chaser at  a  certain  price  before  the  owner 
interfered  by  a  sale  through  another  brok- 
er is  binding  on  the  appellate  court.  Jen- 
nings V.  Trummer,  23:  164,  96  Pac.  874,  52 
Or.  149. 

970.  A  finding  of  fact  that  a  wharf  which 
has  been  constructed  by  the  abutting  owner 
upon  a  street  has  continuously  been  used 
by  the  public  for  both  foot  and  vehicle 
traffic  is  inconsistent  with  a  finding  that 
the  street  has  not  been  used  or  traveled  as 
a  public  highway  and  the  latter  must  be 
rejected  by  the  appellate  court  in  aid  of 
an  appeal.  Buffalo  v.  Delaware,  L.  &  W.  R. 
Co.  16:  506,  82  N.  E.  513,  190  N.  Y.  84. 

971.  A  trial  court  cannot  be  said  to  be 
plainly  wrong  in  its  determination  that 
stock  of  a  corporation  was  intended  to  be 
issued  directly  to  the  general  public  sub- 
scribing therefor,  and  not  to  the  promoters 
to  be  sold  to  the  subscribers,  where  such 
intention  appears  from  the  contemporane- 
ous acts,  entries,  and  other  writings  with 
Dieest   1-52  L.R.A.(N.S.) 


their  natural  inferences,  although  it  is  op- 
posed tp  the  oral  testimony  of  the  pro- 
moters. Old  Dominion  Copper  Min.  & 
Smelting  Co.  v.  Bigelow,  40:  314,  89  N.  E. 
193,  203  Mass.  159. 
Reasonableness    of   passenger   rate. 

972.  Whether  the  imposition  of  a  2-cent 
passenger  rate  upon  a  railroad  comi)any  has 
a  tendency  to  confiscate  its  property  is  a' 
question  of  fact,  upon  which  the  findings  of 
the  trial  court  are  not  to  be  disturbed  un- 
less shown  to  be  clearly  erroneous.  Penn- 
sylvania R.  Co.  v.  Philadelphia  County,  15: 
108,  68  Atl.  676,  220  Pa.  100. 
Disbarment  of  attorney. 

973.  A  judgment  disbarring  an  attorney 
from  the  practice  of  law  will  not  be  dis- 
turbed on  appeal,  where  the  whole  question 
for  the  consideration  of  the  trial  court  was 
as  to  the  unfaithfulness  of  the  attorney,  and 
the  version  of  the  client  was  directly  contra- 
dicted by  that  of  the  accused,  as,  in  such 
case,  the  judgment  of  the  trial  court,  which 
had  the  parties  before  it,  is  conclusive.  Re 
Wilson,  21:  517,  100  Pac.  635,  79  Kan.  674. 
incg;al  sale  of  liquor. 

974.  A  finding  of  fact  by  the  appellate 
court,  that  two  saloons  were  being  run  in 
different  rooms  in  one  building  under  one 
license,  is  binding  on  the  supreme  court. 
Malkan  v.  Chicago,  2:  488,  75  N.  E.  548,  217 
111.  471. 

975.  On  a  writ  of  error  from  a  judgment 
rendered  by  the  county  court,  acquitting 
one  accused  of  illegally  selling  intoxicating 
liquors,  the  state  is  regarded  as  a  demur- 
rant to  the  evidence;  and  the  finding  oi  the 
trial  court  to  which  the  case  was  submitted 
on  an  agreed  statement  of  facts  will  not  be 
disturbed,  where  it  would  be  competent  for 
a  jury,  under  the  facts  and  circumstances 
disclosed,  to  find  for  the  defendant.  State 
V.  Davis,  14:  1 142,  60  S.  E.  584,  62  W.  Va. 
500. 

Intent  to  bave  husband  sign  contract. 

976.  A  finding  on  conflicting  evidence  that 
there  was  no  intention  to  require  a  man  to 
sign  his  wife's  contract  to  sell  her  land,  to 
render  it  binding,  will  not  be  disturbed  on 
appeal,  where  she  had  authority  to  convey 
without  his  consent,  and  she  had  taken 
steps  to  carry  out  the  contract  notwith- 
standing be  had  not  signed  it.  Bates  v. 
Harris,  36:  154,  138  S.  W.  276,  144  Ky.  369. 
Existence  or  nonexistence  of  contract. 

977.  A  finding,  by  the  trial  court,  of  the 
nonexistence  of  a  contract,  will  not  l)e  dis- 
turbed on  appeal  unless  the  preponderance 
of  the  evidence  is  shown  to  be  clearly  and 
indisputably  against  it.  Pressed  Steel  Car 
Co.  v.  Hansen,  2:  1172,  137  Fed.  403,  71  C. 
C.  A.  207. 

978.  The  decision  of  the  trial  court  that 
an  oral  contract  between  a  sister  and  her 
brother  that  she  act  as  his  housekeeper  and 
care  for  him,  and  that  she  shall  have  his 
property  at  his  death,  is  still  in  force,  will 
not  be  disturbed,  although,  after  living  with 
her  brother  for  many  years  performing  the 
agreement  referred  to,  the  sister  married, 
and  for  eleven  years  lived  apart  from  her 
brother,  until  her  husband  died,  when  sh* 


122 


APPEAL  AND  ERROR,  VII.  1,  3. 


returned  to  her  brother's  home  and  resumed 
her  duties  under  the  agreement,  and  con- 
tinued to  perform  them  until  his  death, 
the  brother  in  the  meantime  expressing 
satisfaction  with  her  conduct,  and  holding 
her  in  afTectionate  regard.  Smith  v.  Cam- 
eron, 52:  1057,  141  Pac.  596,  92  Kan.  652. 
Preference  by  bankrupt. 

979.  A  finding  by  the  court  below  that 
mortgagees  to  whom  an  insolvent  executed 
a  mortgage  within  four  months  before  he 
filed  a  voluntary  petition  in  bankruptcy 
did  not  have  reasonable  cause  to  believe 
that  it  was  intended  to  give  a  preference, 
and  that  the  mortgagor  did  not  intend 
thereby  to  hinder,  delay,  or  defraud  any  of 
his  other  creditors,  will  be  affirmed  unless 
some  serious  mistake  of  fact  has  been  made, 
or  some  obvious  error  of  law  has  inter- 
vened. Coder  v.  Arts,  15:  372,  152  Fed.  943, 
82  C.  C.  A.  91. 

Passing  of  title. 

980.  The  findings  of  the  trial  court  in  an 
action  to  recover  possession  of  a  quanti- 
ty of  grain  which  had  been  sold,  but  not 
actually  delivered,  that  the  title  passed  to 
the  vendee,  will  not  be  disturbed  on  ap- 
peal unless  against  the  clear  weight  of  evi- 
dence, since  the  question  is  one  of  fact,  as 
it  depends  on  the  intent  of  the  parties  to 
the  transaction.  Seldomridge  v.  Farmers' 
&  M.  Bank,  30:  337,  127  N.  W.  871,  87  Neb. 
531. 

Necessity  for  medical  attention. 

981.  A  finding  of  necessity  for  medical 
attention  to  a  child,  for  failure  to  furnish 
which  the  parent  is  on  trial,  will  not  be  dis- 
turbed on  appeal  where  the  evidence  tends 
reasonably  to  support  the  finding.  Owens  v. 
State,  36:  633,  116  Pac.  345,  6  Okla.  Crim. 
Rep.  110. 

Fraud. 

See  also  supra,  979. 

982.  Concurrent  findings  of  fact  by  the 
two  lower  courts  in  a  suit  to  set  aside  a 
conveyance  as  in  fraud  of  creditors  will 
ordinarily  be  accepted  by  the  Federal  Su- 
preme Court  on  appeal.  Merillat  v.  Hen- 
sey,  36:  370,  31  Sup.  Ct.  Rep.  575,  221  U. 
S.  333,  55  L.  ed.  758. 

Divorce;  suit  money;  alimony. 

983.  The  finding  of  the  trial  court  of  the 
infliction  upon  plaintifi"  in  a  divorce  pro- 
ceeding, of  grievous  mental  sufl'ering,  by  de- 
fendant, will  not  be  disturbed  on  appeal  un- 
less the  evidence  in  support  thereof  is  so 
slight  as  to  indicate  a  want  of  ordinary 
good  judgment  and  an  abuse  of  discretion 
by  the  trial  court.  MacDonald  v.  MacDon- 
ald,  25:  45,  102  Pac.  927,  155  Cal,  665. 

984.  The  appellate  court  will  not  inter- 
fere with  the  action  of  the  trial  court  in 
awarding  permanent  alimony  to  a  wife 
against  whom  a  divorce  is  granted  for  de- 
serting her  husband,  where  the  statute  au- 
thorizes the  trial  court  to  make  such  decree 
touching  alimony  as  may  be  just  and 
reasonable,  and  she  is  old,  helpless,  penni- 
less, and  almost  blind,  and  there  is  evidence 
tending  to  show  that  she  left  her  husband 
because  of  his  cruelty  to  her.  Vigil  v. 
Vigil,  31:578,  111  Pac.  833,  49  Colo.  156. 
Digest  1-52  I..R.A.(N.S.) 


985.  An  award  of  alimony  in  a  divorce 
proceeding  will  not  be  disturbed  on  appeal 
unless  a  clear  abuse  of  discretion  on  the 
part  of  the  trial  court  has  been  shown.  Van 
Gorder  v.  Van  Gorder,  44:  998,  121)  Pac.  226, 
54  Colo.  57. 

986.  A  decree  awarding  a  wife  who  is  no 
longer  able  to  labor  hard,  and  i.s  forced  to 
.seek  a  separation  by  the  misconduct  of  her 
husband,  a  moiety  of  the  property  accu- 
mulated by  their  joint  labors  through  a 
lifetime,  will  not  be  interfered  with  on  ap- 
peal where  the  joint  property  is  sufficient 
to  support  them  both  comfortably  if  living 
together,  since  she  is  entitled  to  sufficient 
property  to  support  her  comfortably  living  , 
alone.  Van  Gorder  v.  Van  Gorder,  44:  998, 
129  Pac.  226,  54  Colo.  57.  (Annotated) 

987.  The  allowance  of  only  $200  as  a  fee 
for  the  wife's  attorney  in  a  divorce  pro- 
ceeding will  not  be  interfered  with  on  ap- 
peal, although  the  husband  is  worth  $40,- 
000,  where  little  work  was  involved  and 
there  was  practically  no  contest  on  the 
main  issues.  Blair  v.  Blair,  38:  269,  121 
Pac.  19,  40  Utah,  306. 

988.  The  award  of  only  $4,500  as  alimony 
will  not  be  disturbed  on  appeal  for  abuse 
of  discretion,  although  the  husband  is  worth 
$40,000,  where  the  parties  have  been  mar- 
ried only  a  short  time,  the  wife  has  had  no 
part  in  the  accumulation  of  the  property, 
and  the  property  consists  of  farm  lands 
not  very  productive.  Blair  v.  Blair,  38: 
269,  121   Pac.  19,  40  Utah,  306. 

989.  The  allowance  of  $50  per  month  as 
alimony  to  a  wife  having  no  property, 
against  a  man  worth  from  $15,000  to 
$60,000,  who  causes  the  wife  to  leave  the 
home  because  of  his  siding  with  his  sister 
in  her  attempt  to  control  the  affairs  of  the 
house,  will  not  be  interfered  with  on  ap- 
peal. McConnell  v.  McConnell,  33:  1074, 
136  S.  W.  931,  98  Ark.  193. 

990.  Whether  or  not  a  decree  for  ali- 
mony rendered  by  a  court  of  one  state  is 
final,  so  as  to  be  enforceable  in  another 
state,  is  a  question  of  fact,  to  be  deter- 
mined by  the  trial  court  upon  the  statutes 
and  decisions  of  the  state  where  the  decree 
was  rendered,  and  such  expert  evidence  as 
may  be  offered,  and  its  finding  cannot  be 
reviewed  on  appeal  if  there  is  any  evidence 
to  support  it.  Wells  v.  Wells,  35:  561,  95 
N.  E.  845,  209  Mass,  282. 

Insurance  cases. 

991.  A  finding  of  a  trial  court  that  there 
was  no  acceptance  of  an  application  for  in- 
surance upon  evidence  reasonably  tending 
to  show  that  there  was  no  acceptance  is 
conclusive  as  against  any  acceptance  which 
may  be  inferred  from  a  retention  of  the 
application  and  the  premiums.  Dorman  v. 
Connecticut  F.  Ins.  Co.  51:873,  139  Pac. 
262,  41  Okla.  509. 

992.  A  finding  of  the  trial  court  that  a 
traveling  soliciting  insurance  agent  with- 
out actual  authority  to  contract,  who  is  fur- 
nished by  the  insurance  company  with  no 
indicia  of  authority  other  than  printed 
blank  forms   of   application   for   insurance. 


APPEAL  AND  ERROR,  \  II.  1,  4. 


123 


addressed  to  it,  which  does  not  expressly 
limit  the  authority  of  its  soliciting  agent 
except  by  a  provision  as  to  when  the  policy 
should  take  effect,  had  no  authority  to 
enter  into  a  contract  of  insurance,  will  not 
be  disturbed  where  the  applicant  for  insur- 
ance had  no  knowledge  of  the  contents  of 
the  application  and  claimed  no  contract  of 
insurance  other  than  a  contemporaneous 
oral  one  somewhat  inconsistent  with  the 
only  limitations  contained  in  the  applica- 
tion. Dorman  v.  Connecticut  F.  Ins.  Co. 
51 :  873,  139  Pac.  262,  41  Okla.  509. 

993.  A  finding  by  the  trial  court  that  a 
fire  preceded  an  explosion  which  injured  in- 
sured property,  so  as  not  to  bring  the  loss 
within  an  exception  in  the  policy,  is  not 
binding  on  appeal  if  there  is  no  evidence  in 
the  case  tending  to  show  such  to  have  been 
the  fact.  German  American  Ins.  Co.  v.  Hy- 
man,  16:  77,  94  Pac.  27,  42  Colo.  156. 

994.  A  finding  of  the  trial  court  that  a 
hemorrhage  did  not  constitute  a  serious  ill- 
ness within  the  meaning  of  the  life  insur- 
ance policy  in  suit  is  conclusive,  when  the 
evidence  is  conflicting  both  as  to  the  severi- 
ty of  the  illness  and  the  condition  of  in- 
sured's health  thereafter  until  her  last  ill- 
ness, and  there  is  an  entire  absence  of  any 
evidence  that  such  loss  of  blood  brought  on, 
or  was  likely  to  result  in,  permanent  or 
material  impairment  of  her  health.  Emi- 
nent Household  of  C.  W.  v.  Prater,  23:  917, 
103  Pac.  558,  24  Okla.  214. 
Negligence. 

Correctness    of    instructions,   generally,    see 
Trial,  1044,  1047,  1061. 

995.  An  appellate  court  cannot  rule 
that  a  trial  judge  was  wrong  in  holding 
that  a  master  was  not  negligent  in  failing 
to  guard  planer  knives  from  the  rear,  where 
they  could  not  be  reached  by  an  operator 
except  from  a  position  which  his  duties  did 
not  require  him  to  occupy,  or  where  he 
would  not  reasonably  be  expected  to  go. 
Kroger  v.  Cumberland  Fruit  Package  Co. 
35:  473,  130  N.  W.  513,  145  Wis.  433. 

996.  The  appellate  court  is  concluded  by 
the  finding  of  the  trial  court  as  to  the  dan- 
gerous character  of  a  stovepipe  enamel  which 
ignited  and  injured  a  person  attempting  to 
use  it  according  to  directions.  Wolcho  v. 
A.  J.  Rosenbluth  &  Co.  21:  571,  71  Atl.  566, 
81  Conn.  ^358. 

b.  In  equity. 

(See   also    same   heading   in   Digest   L.R.A. 
1-70.) 

997.  A  finding  by  the  chancellor  on  con- 
flicting evidence  that  a  lot  owner  objected 
to  the  violation  of  the  covenant  establish- 
ing the  building  line  in  the  erection  of  a 
building  on  the  adjoining  lot  will  be  fol- 
lowed on  appeal.  6'Gallagher  v.  Lockhart, 
52:  1044,  105  N.  E.  295,  263  111.  489. 

998.  Where  the  evidence  in  an  equity  pro- 
ceeding is  partly  oral,  the  findings  of  fact 
of  the  single  justice  will  not  be  disturbed 
by  the  law  court  unless  plainly  wrong. 
Old  Dominion  Copper  Min.  &  Smelting  Co. 
Digest  1-52  I<.R.A.(N.S.) 


v.  Bigelow,  40:  314,  89  N.  E.  193,  203  Mass. 
159. 

999.  The  law  court  will  not  interfere  with 
a  finding  of  fact  by  a  single  justice  on  con- 
flicting testimony,  where  the  inferences 
from  other  facts  proved  in  the  case  are  not 
inconsistent  with  the  finding.  Stewart  v. 
Finkelstone,  28:  634,  92  N.  E.  37,  206  Mass. 
28. 

1000.  The  rulings  of  the  chancellor  on 
questions  of  fact  depending  upon  conflict 
ing  evidence  will  not  be  disturbed  on  ap- 
peal, unless  they  are  manifestly  wrong. 
Burwash  v.  Ballou,  15:  409,  82  N.  E.  355, 
230  111.  34. 

1001.  Where,  under  the  Constitution,  an 
appeal  in  an  equity  case  takes  before  the 
reviewing  court  all  questions  of  law  and 
fact,  that  court  is  not  bound  by  findings' 
of  the  trial  court  upon  conflicting  evidence, 
at  least,  where  all  evidence  was  taken  by 
deposition.  Campbell  v.  Gowans,  23:  414, 
100  Pac.  397,  35  Utah,  268. 

1002.  The  supreme  court  will  weigh  for 
itself  the  testimony  in  an  equity  case  where 
it  is  practically  undisputed,  and  draw  its 
own  conclusion  as  to  the  rights  of  the  par- 
ties, notwithstanding  the  finding  of  the  trial 
court.  Harris  Bkg.  Co.  v.  Miller,  i :  790,  89 
S.  W.  629,  190  Mo.  640. 

1003.  The  appellate  court  is  not  bound  by 
the  findings  of  the  chancellor  in  equity 
cases,  but  will  draw  its  own  conclusions 
from  the  evidence.  Bushnell  v.  Loomis,  36: 
1029,  137  S.  W.  257,  234  Mo.  371. 

1004.  The  appellate  court,  having  no  ju- 
risdiction to  review  facts  in  an  action  at 
law,  cannot  review  the  facts  upon  appeal 
from  the  allowance  of  a  claim  against  a  de- 
cedent's estate,  where  the  claim  is  for  a  legal 
demand  and  no  defense  is  made  which 
could  not  have  been  interposed  in  a  suit 
at  law.  Re  McVicker,  28:  1112,  91  N.  E. 
1041,  245  111.   180. 

c.  Where  jury  has  heen  waived. 

1005.  Where  a  case  is  submitted  to  the 
court  and  a  jury  waived,  the  finding  of  fact 
by  the  court  will  not  be  disturbed,  where 
there  is  competent  evidence  which  reason- 
ably tends  to  support  the  findings.  Reaves 
V.  Reaves,  2 :  353,  82  Pac.  490,  15  Okla.  240. 

4.  Of  findings  by  referee,  commission, 
etc. 

(See   also    same   heading   in   Digest   L.R.A. 
1-10.) 

1006.  The  findings  of  a  referee  are  entitled 
to  the  same  weight  as  the  special  verdict  of 
a  jury,  and  where  amply  supported  by  the 
evidence  are  conclusive  upon  the  appellate 
court.  Eberle  v.  Drennan,  51:  68,  136  Pac. 
162,  40  Okla.  59. 

1007.  A  finding  by  a  consent  master  ap- 
proved by  the  chancellor  is  binding  on  ap- 
peal, if  there  is  any  legal  evidence  to  sus- 
tain it.  Miles  V.  Dodson,  50:  83,  144  S.  W. 
908,  102  Ark.  422. 


124 


APPEAL  AND  ERROR,  VII.  1,  5,  m,  1. 


1008.  A  master's  finding  of  facts  upon  evi- 
dence taken  before  him  cannot  be  im- 
peached, in  the  absence  from  the  record  of 
his  certificate,  or  other  competent  proof, 
either  that  the  evidence  presented  is  the 
entire  evidence  that  was  before  him,  or 
that  it  was  all  the  evidence  which  was  be- 
fore him  relative  to  the  specific  finding  or 
findings  challenged.  Wheeler  v.  Abilene 
Nat.  Bank  Bldg.  Co.  i6:  892,  159  Fed..  391, 
89  C.  C.  A.  477. 

1009.  A  finding  of  the  master  that  the 
words  "crown  malt"  so  nearly  resemble  the 
trademark  "Creamalt"  when  applied  to  a 
loaf  of  bread,  as  to  be  likely  to  deceive  the 
public,  will  not  be  interfered  with  by  the 
reviewing  court,  unless  it  is  shown  to  be 
clearly  wrong.  George  G.  Fox  Co.  v.  Glynn, 
g:  1096,  78  N.  E.  89,  191  Mass..344. 

1010.  Decisions  by  a  referee  that  legal 
services  were  rendered  under  a  general,  as 
distinguished  from  a  special,  contract,  will 
not  be  disturbed,  upon  appeal  where  the  evi- 
dence is  contiicting.  Mellon  v.  Fulton,  19: 
960,  98  Pac.  911,  22  Okla.  636. 

1011.  On  appeal  from  a  judgment  overrul- 
ing the  report  and  findings  of  fact  made  by 
a  commissioner  to  whom  the  case  had  been 
referred,  the  appellate  court  will  determine 
for  itself,  from  the  evidence,  whether  it  will 
sustain  the  conclusions  of  the  commissioner 
or  those  of  the  court.  Deepwater  Ry.  Co. 
V.  Honaker,  27:  388,  66  S.  E.  104,  66  VV.  Va. 
136. 

Of   referee    in   bankruptcy. 

1012.  The  appellate  court  will  not  over- 
turn the  finding  of  a  referee  in  bankruptcy, 
affirmed  by  the  bankruptcy  court,  on  con- 
flicting evidence,  as  to  the  bona  fid«s  of 
debts  in  favor  of  near  relatives  of  the  bank- 
rupt, although  they  do  not  appear  from  the 
books  of  either  the  creditors,  or  the  bank- 
rupt, if  such  nonappearance  is  satisfactorily 
explained.  Ohio  Valley  Bank  v.  Mack,  24: 
184,  163  Fed.  155,  89  C.  C.  A.  605. 

1013.  A  finding  on  conflicting  evidence  by 
the  referee,  of  bona  fides  on  the  part  of  one 
advancing  money  to  a  bankrupt,  which  is 
used  to  prefer  one  of  the  latter's  creditors, 
affirmed  by  the  bankruptcy  court,  is  bind- 
ing on  appeal.  Ohio  Valley  Bank  v.  Mack, 
24:  184,  163  Fed.  155,  89  C.  C.  A.  605. 

Of  state   corporation   commission. 

1014.  The  prima  facie  presumption  of  the 
correctness  of  the  acts  of  the  state  corpora- 
tion commission  applies  only  to  the  facts 
found;  and  where  there  is  no  finding  by  the 
commission  on  a  necessary  point,  and  the 
evidence  certified  in  the  record  to  the  su- 
preme court  is  indefinite  and  unsatisfactory, 
the  commission's  order  will  not  be  sustained. 
Chicago,  R.  T.  &  P.  R.  Co.  v.  State,  24:  393, 
103  Pac.  617,  24  Okla.  317. 

1015.  While  it  is  proper  for  the  state  cor- 
poration commission  to  make  findings  of 
facts,  such  findings  have  no  force  or  ef- 
fect upon  a  review  of  the  order  of  the  com- 
mission in  the  supreme  court,  as  this  court 
is  required  to  pass  upon  the  merits  of  the 
case,  without  indulging  in  any  presump- 
tions, and  the  court  forms  its  own  inde- 
pendent judgment  as  to  each  requirement 
Digest  1-52  L.BJk.(N.S.) 


of  the  order,  upon  the  evidence.  Seward 
V.  Denver  &  R.  G.  R.  Co.  46:  242,  131  Pac. 
980,  17  N.  M.  557. 

1016.  The  order  of  a  corporation  commis- 
sion requiring  a  railroad  to  install  and 
maintain  a  telephone  in  its  station  in  a  town 
having  one  telephone  exchange,  which  is  con- 
nected with  an  inland  town  about  6  miles 
distant,  with  about  300  population,  which 
towns  received  all  their  freight  by  way  of 
such  station,  will  not  be  disturbed  on  ap- 
peal, where  it  appears  that  the  installing 
and  maintaining  thereof  would  be  to  the  con- 
venience of  the  patrons  of  such  station. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  State,  21:  908, 
100  Pac.  11,  23  Okla.  210. 

1017.  An  order  of  a  state  corporation  com- 
mission, that  a  railway  company  must 
maintain  a  telegraph  operator  at  a  par- 
ticular station,  is  not  justified  by  a  find- 
ing that  the  company  has  been  compelled 
to  telephone  to  other  stations  for  orders  for 
trains  tied  up  for  want  of  orders,  where  the 
findings  do  not  show  how  often  this  has 
been  necessary,  or  the  adequacy  of  the  tele- 
phone service,  or  its  expense,  or  the  amount 
of  the  receipts  belonging  to  the  company 
for  freight  and  passenger  service  at  that 
station.  Chicago,  R.  I.  &  P.  R.  Co.  v.  State, 
24:393,   103   Pac.   617,   24   Okla.   317. 

1018.  Where  an  order  of  the  corporation 
commission,  requiring  an  interstate  train  to 
be  stopped  on  flag  at  a  junction  point  or 
station,  appears  to  be  desirable  for  the 
public  and  necessary  for  the  public  con- 
venience, and  proper  and  adequate  facilities 
are  not  otherwise  aflforded  for  such  point, 
its  size  and  importance  being  considered, 
in  connection  with  the  service  required  on 
account  of  its  being  a  junction  point,  the 
same  will  not  be  disturbed  on  appeal.  St. 
Louis  &  S.  F.  R.  Co.  v.  Langer,  44:  478,  119 
Pac.    126,  29  Okla.  691.  (Annotated) 

5.  On  appeal  from  appellate  court. 

(See   also   same   heading   in   Digest   L.R.A. 

1-10.) 

1019.  The  judgment  of  the  intermediate 
appellate  court  as  to  facts  which  there  is 
evidence  to  support  is  final.  Illinois  C.  R. 
Co.  v.  Siler,  15:  819,  82  N.  E.  362,  229  111. 
390. 

1020.  The  unanimous  affirmance  by  the  ap- 
pellate division  of  what  purports  to  be  a 
finding  of  fact  as  to  the  legal  effect  of  a  le- 
gal instrument  will  not  prevent  a  review  by 
the  court  of  appeals  of  the  question  of  law 
involved  in  the  construction  of  the  instru- 
ment. Smyth  V.  Brooklyn  U.  Elev.  R.  Co. 
23:  433,  85  N.  E.  1100,  193  N.  Y.  335. 

m.  What  errors   warrant   reversal. 

1.  In  general. 

(See   also    same   heading   in   Digest   L.R.A. 
1-10.) 

Errors  waived  or  cured  below,   see  supra, 
VII.  k. 


APPEAL  AND  ERROR,  VII.  m,  1. 


126 


Heversal     because     of     disqualification     of 
judge,  see  Judges,  15. 

1021.  Errors  relied  upon  to  reverse  a  judg- 
ment must  be  prejudicial  to  the  party  com- 
plaining. Whitney  v.  Brown,  11:468,  90 
Pac.  -277,  75  Kan.  678. 

1022.  An  alleged  error  not  shown  by  the 
record  to  have  been  prejudicial  is  not 
ground  for  reversal.  Magcau  v.  (jrcat 
Northern  R.  Co.  15:  511,  115  N.  W.  651,  103 
Minn.   290. 

1023.  Nonprejudicial  errors  do  not  require 
reversal  of  a  judgment  which  is  otherwise 
supported  by  the  evidence  and  the  law.  Hil- 
ligas  v.  Kuns,  26:  284,  124  N.  W.  925,  86 
Neb.  GS. 

1024.  Error  cannot  be  regarded  as  harm- 
ful, so  as  to  require  a  reversal,  unless,  with- 
in reasonable  probabilities,  had  the  error 
not  occurred,  the  result  might  have  been 
materially  more  favorable  to  the  one  com- 
plaining of  it.  Oborn  v.  State,  31 :  966, 
126  N.  W.  737,  143  Wis.  249. 

1025.  Technical  errors  which  do  not  affect 
the  substantial  right  of  the  defendant  will 
not  be  considered  upon  appeal,  where  the 
record  shows  that  a  conviction  was  fairly 
obtained.  United  States  v.  Hargo,  20:  1013, 
98  Pac.  1021,  1  Okla.  Crim.  Rep.  590. 

1026.  Erroneous  rulings  of  the  trial  court 
upon  abstract  propositions  of  law  will  not 
require  a  reversal  if,  upon  the  law  and 
legal  evidence,  the  result  of  the  trial  was 
right.  Gordon  v.  Conley,  33:  336,  78  Atl. 
365,    107    Me.    286. 

1027.  Errors  of  practice  which  in  no  wise 
aflfect  the  substantial  rights  of  the  parties 
are  without  injury  where,  under  the  con- 
ceded facts,  the  judgment  rendered  is  cor- 
rect and  the  only  one  which  could  be  sus- 
tained. First  Nat.  Bank  v.  Grillin,  49:  1020, 
120  Pac.  595,  31  Okla.  382. 

1028.  Erroneous  rulings,  if  not  prejudicial 
to  the  rights  of  the  party,  may  be  disregard- 
ed; but  where  the  findings  are  contrary  to 
the  evidence,  and  the  erroneous  rulings  may 
have  misled  the  jury,  they  are  material  and 
constitute  reversible  error.  Fleming  v. 
Thorp.  19:  915,  96  Pac.  470,  78  Kan.  237. 

1029.  The  rule  that  error  without  prejudice 
is  no  ground  for  reversal  is  applicable  only 
when  it  appears  so  clearly  as  to  be  beyond 
doubt  that  the  error  challenged  did  not 
prejudice  and  could  not  prejudice  the  com- 
plaining party.  Armour  &  Co.  v.  Russell, 
6:  602,   144   Fed.  614,  75  C.  C.  A.  416. 

1030.  A  statute  which  provides  that  re- 
versals shall  not  be  orderecl  for  errors  which 
do  not  afiirmatively  appear  prejudicallj'  to 
have  affected  the  substantial  rights  of  the 
party  complaining,  when  it  appears  that 
substantial  justice  has  been  done,  does  not 
authorize  the  affirmance  of  a  judgment  up- 
on the  ground  that  it  is  in  accordance  with 
the  view  of  the  facts  which  the  reviewing 
court  itself  might  derive  from  the  conflict- 
ing evidence,  where  it  is  based  on  a  verdict 
rendered  under  the  apparent  influence  of 
a  materially  erroneous  instruction,  or  by 
a  jury  made  up  in  part  of  persons  dia- 
Digest  1-52  I..R.A.(N.S.) 


qualified  on  account  of  interest.  Broadway 
Mfg.  Co.  V.  Leavenworth  Terminal  R.  &  B. 
Co.  28:  156,   106  Pac.  1034,  81  Kan.  616. 

1031.  It  is  not  reversible  error  to  require 
the  aigument  of  a  motion  for  new  trial  at 
the  time  it  is  made,  without  giving  time 
for  preparation.  State  v.  Davis,  34:  295, 
70  S.  E.  811,  88  S.  C.  229. 

1032.  Although  there  is  no  appeal  from  the 
judgment,  the  cause  will  not  be  reversed  for 
error  in  denying  plaintiff's  motion  for  new 
trial  because  defendant's  evidence  was  not 
sufficient  to  support  his  defense,  if  the  com- 
plaint on  its  face  shows  that  no  recovery 
can  be  had  on  the  cause  of  action  set  forth 
therein,  and  that  no  amendment  can  correct 
it,  so  that  the  L/ro.-,  if  any,  is  without  pre- 
judice. Peters  v.  Peters,  23:  699,  103  Pac. 
219,  156  Cal.  32. 

1033.  The  supreme  court  will  not  affirm  a 
judgment  for  actual  damages  only,  in  an 
action  for  assault  by  one  seeking  to  enter 
upon  his  own  property  which  is  in  posses- 
sion of  a  wrongdoer,  on  the  theory  that  ex- 
cessive force  was  employed,  where  the  trial 
court  refused  to  permit  the  fact  of  owner- 
ship to  be  considered  as  justifying  the  use 
of  force,  and  thereby  tried  the  case  upon  an 
erroneous  theory.  Walker  v.  Chanslor,  17: 
455,  94  Pac.  606,  153  Cal.  118. 

1034.  It  is  reversible  error  for  a  state  cor- 
poration commission  which  has  directed  the 
amendment  of  an  original  affidavit  charging 
a  violation  of  one  of  its  orders,  to  procee(l 
with  the  trial  over  the  objection  of  the 
defendant,  upon  the  theory  that  the  affida- 
vit has  been  amended  so  as  to  charge  a 
violation  of  a  different  order,  where  such 
amendment  has  never  been  made  not  veri- 
fied. St.  Louis  &  S.  F.  R.  Co.  v.  State, 
30:  137,   107  Pac.  929,  26  Okla.  62. 

1035.  That  a  person  libeled  by  two  individ- 
uals whom  he  sued  jointly  recovered  a 
judgment  for  full  damages  against  one,,  who 
is  solvent,  and  that  the  other  is  willing  to 
waive  the  costs  to  which  he  is  entitled  be- 
cause of  a  verdict  in  his  favor,  does  not  of 
itself  show  that  plaintiff  was  not  preju- 
diced by  error  committed  by  the  court,  fa- 
vorable to  the  defendant  in  whose  favor  the 
verdict  was  returned.  Lawrence  v.  Herald 
Pub.  Co.  25:  796,  122  N.  W.  1084,  158  Mich. 
459. 

1036.  In  an  action  in  form  to  recover  the 
purchase  price  of  chattels,  where  the  cause 
of  action  is  in  fact  for  damages  for  breach 
of  the  agreement  to  purchase,  a  recovery 
upon  the  theory  of  the  pleader  will  not  be 
disturbed  on  appeal,  if  the  judgment  is  not 
in  excess  of  the  amount  plaintiff  would 
have  recovered  had  he  proceeded  in  the 
proper  way.  Lincoln  v.  Charles  Alshuler 
Mfg.  Co.  28:780,  125  N.  W.  908,  142  Wis. 
475. 

1037.  The  omission  from  the  summons  of 
the  name  of  the  county  in  which  the  action 
is  brought  and  the  amount  for  which  judg- 
ment is  demanded,  which  facts  can  be  su])- 
plied  from  the  complaint  served  with  the 
summons,  is  within  a  constitutional  pro- 
vision requiring  the  appellate  court  to  af- 
firm if  the  correct  judgment  was  rendered, 


126 


APPEAL  AND  ERROR,  VII.  m,  1. 


notwitlistanding  any  error  committed   dur- 
in<^   the   trial.      First  Nat.   Bank   v.    Rusk, 
44:  138,   127   Pac.  780,  64  Or.  35. 
Transfer  to  chancery. 

1038.  It  is  reversible  error  to  transfer  to 
the  chancery  court  against  the  objection  of 
the  plaintiff  an  action  properly  triable  at 
law.  First  Nat.  Bank  v.  Reinman,  28:  530, 
125  S.  W.  443,  93  Ark.  376. 
Compulsory   election. 

1039.  The  administratrix  of  one  who,  after 
purchasing  a  ticket  for  an  ocean  voyage,  is 
excluded  from  the  vessel,  who  brings  actions 
in  contract  and  tort  to  recover  the  damages 
for  the  carrier's  act,  and  under  compulsion 
of  the  court  elects  to  proceed  in  tort  when 
she  has  no  right  to  maintain  the  action  in 
that  form,  has  a  right  to  a  reversal,  to  per- 
mit her  to  try  out  her  right  to  a  return  of 
the  passage  money.  Connors  v.  Cunard 
Steamship  Co.  26:  171,  90  N.  E.  601,  204 
Mass.  310. 

Reference;  exceptions  to  report. 

1040.  Where,  in  a  suit,  defendant  denies 
any  liability  to  plaintiff  and  any  foundation 
for  the  suit,  but  agrees  for  a  reference  of 
the  same  for  trial  before  a  referee,  it  is 
not  error  for  the  court,  in  its  order,  to  state, 
"it  appearing  to  the  court  that  this  is  a 
case  involving  an  accounting,"  etc.,  in  the 
absence  of  any  evidence  that  the  referee  was 
influenced  in  his  findings  thereby.  Logan  v. 
Brown,  20:  298,  95  Pac.  441,  20  Okla.  334. 

1041.  Where  the  evidence  in  an  action 
equitable  in  character  is  sufficient  to  au- 
thorize the  finding  of  an  auditor  to  w,hom 
the  matter  has  been  referred,  the  overrul- 
ing of  exceptions  to  the  auditor's  report  by 
the  presiding  judge  is  not  error.  Cowart 
v.  Singletary,  47:  621,  79  S.  E.  196,  140  Ga. 
435. 

1042.  A  lack  of  specification  as  to  the 
items  of  an  open  account  in  the  report  of 
an  auditor  to  whom  a  cause  is  referred  does 
not  make  the  action  of  the  trial  court  in 
overruling  a  motion  for  rereference  reversi- 
ble error,  where  the  recovery  of  the  amount 
of  the  open  account  was  waived.  Cowart 
V.  Singletary,  47:  621,  79  S.  E.  196,  140  Ga. 
435. 

Criminal  cases. 

1043.  An  appellate  court  is  not  required  to 
do  more  than  read  the  record  carefully  in 
connection  with  assignments  of  error  in  a 
criminal  case  which  are  not  argued,  but 
merely  repeated  and  insisted  upon  in  the 
brief  of  plaintiff  in  error;  and,  if  it  dis- 
covers no  plain  or  glaring  error  prejudicial 
to  the  plaintiff  in  error  under  such  assign- 
ments, the  judgment  will  not  be  reversed 
because  of  such  assigned  errors.  Pittman  v. 
State,  8:  509,  41   So.  385,  51   Fla.  94. 

1044.  A  conviction  should  not  be  reversed 
where  it  is  clearly  proved  that  the  defend- 
ant is  guilty  as  charged,  unless  it  affirma- 
tively appears  from  the  record  that  he  was 
deprived  of  some  substantial  right,  to  his 
injury,  upon  the  trial.  Woody  v.  State, 
49:  479,  136  Pac.  430,  10  Okla.  Crim.  Rep. 
322. 

1045.  A  conviction  in  a  criminal  prosecu- 
tion will  not  be  reversed  on  account  of  the  ac- 
Digest  1-52  L.R.A.(N.S.) 


tion  of  the  trial  court  unless  it  affirmatire- 
ly  appears  in  the  record  that  the  court 
committed  error  during  the  trial  of  the 
case,  and  that  by  such  error  the  defendant 
was  deprived  of  a  substantial  right,  to  his 
injury.  Edwards  v.  State,  44:  701,  131  Pac. 
956,  9  Okla.  Crim.  Rep.  306. 

1046.  The  inadvertent  omission  of  arraign- 
ment and  plea  in  a  criminal  cause  involv- 
ing les?  than  capital  punishment  is  not  re- 
versible error  if  accused  is  allowed  to  make 
his  defense  as  fully  and  effectively  as  if 
issue  had  been  joined — at  least  where  the 
statute  provides  that  no  judgment  shall  be 
set  aside  for  error  in  procedure  unless  it 
has  affected  substantial  rights.  Hack  v. 
State,  45:  664,  124  N.  W.  492,  141  Wis.  346. 

( Annotated ) 

1047.  Absence  of  arraignment  and  plea  in 
a  criminal  case  is  not  fatal  on  appeal, 
where  the  statute  provides  that  there  shall 
be  no  reversal  for  any  defect  which  does 
not  tend  to  the  prejudice  of  the  substantial 
rights  of  accused  on  the  merits;  at  least, 
where  his  counsel  announced  ready  for  trial 
and  made  no  statement  except  that  they 
pleaded  "not  guilty."  State  v.  O'Kelley, 
52:  1063,  167  S.  W.  980,  258  Mo.  345. 

1048.  it  is  not  reversible  error  to  indict 
for  murder  one  killing  a  trespasser  on  his 
land,  although  the  statute  provides  that 
the  crime  under  such  circumstances  shall 
be  manslaughter,  since  the  benefit  of  the 
statute  must  be  secured  at  the  trial. 
Brown  v.  State,  34:  811,  54  So.  305,  98  Miss. 
786. 

1049.  The  reviewing  court  cannot  say,  in 
the  absence  of  clear  inference  that  the  fact 
might  be  otherwise,  that  one  on  trial  for 
crime  was  prejudiced  by  demonstrations  on 
the  part  of  spectators  in  the  court  room. 
Smith  V.  State,  27:  461,  49  So.  945,  95  Miss. 
786. 

Parties. 

1050.  On  appeal  by  defendants  from  a  de- 
cree in  equity,  failure  of  the  trial  court  to 
dismiss  the  suit  for  misjoinder  of  plain- 
tiffs and  of  causes  of  action  does  not  re- 
quire a  reversal,  where  the  record  clearly 
shows  that  appellants  were  in  no  wise 
prejudiced  thereby.  Hamilton  v.  Allen, 
28:  723,  125  N.  W.  610,  86  Neb.  401. 

1051.  A  judgment  rendered  in  a  suit  in 
equity  will  not  be  reversed  for  the  reason 
that  a  party  who  should  have  been  made 
plaintiff  is  made  defendant  instead,  when 
the  party  against  whom  judgment  is  ren- 
dered is  not  prejudiced  thereby.  Jobst  v. 
Hay  den  Bros.  50:501,  121  N.'W.  957,  84 
Neb.  735. 

Continuance. 

1052.  Where  the  testimony  of  an  absent 
witness,  on  the  ground  of  which  a  continu- 
ance was  sought,  is  shown  by  the  record 
to  be  cumulative,  and  nothing  appears  from 
the  motion  for  continuance  or  the  trial  to 
show  that  the  testimony  was  material,  or 
that  a  different  verdict  would  probably 
have  been  rendered  had  such  testimony  been 
introduced,  the  act  of  the  trial  court  in 
overruling  the  motion  for  the  continuance 
is  not  error,  and  a  conviction  will   not  be 


APPEAL  AND  ERROR,  VII.  m,  2. 


127 


set  aside  on  account  thereof.  Litchfield  v. 
State,  45:  153,  126  Pac.  707,  8  Okla.  Crim. 
Rep.   164. 

1053.  Refusal  to  continue  a  case  to  permit 
defendant  to  take  the  deposition  of  plaintiff 
to  enable  him  to  prepare  his  defense,  to 
which  he  has  a  right  by  statute,  is  prejudi- 
cial error.  Western  U.  Teleg.  Co.  v.  Wil- 
liams, 19:  409,  112  S.  W.  651,  129  Ky.  515. 

2.  As   to   pleadings. 

(See   also    same   heading    in   Digest   L.R.A. 
1-10.) 

Error   waived   or   cured   below,   see   supra, 
VII.  k,  2. 

1054.  Erroneous  rulings  on  the  pleadings 
will  not  require  reversal  where,  on  the 
merits,  judgment  was  entered  for  the  right 
party.  Jenkins  v.  Hawkeve  Commercial 
Men's  Asso.  30:  1181,  124  N.  W.  199,  147 
Iowa,  113. 

1055.  A  judgment  will  not  be  reversed  be- 
cause new  matter  in  a  reply  constitutes  a 
departure  from  the  petition,  although  time- 
ly objection  has  been  made  thereto  in  the 
trial  court,  where,  notwithstanding  the 
fault  in  the  pleading,  the  contention  of 
each  party  has  been  made  clear,  and  each 
has  had  full  opportunity  to  develop  the 
facts.  Savage  v.  Modern  Woodmen  of 
America, ,  33:  773,  113  Pac.  •  802,  84  Kan. 
63. 

1056.  That  a  reply  contains  a  general  de- 
nial and  matter  in  confession  and  avoid- 
ance does  not,  where  no  prejudice  results 
from  it,  require  reversal,  under  a  statute 
requiring  the  appellate  court  to  disregard 
nonprejudicial  error  and  consider  as  made 
all  amendments  which  might  have  been 
made.  Richardson  v.  Brotherhood  of  Loco- 
motive Firemen  &  Enginemen,  41:  320^  126 
Pac.  82,  70  Wash.  76. 

1057.  No  reversal  can  be  claimed  on  a  re- 
covery for  injury  to  land  by  diversion  of  the 
flood  water  of  a  river  for  certain  years,  be- 
cause the  complaint  did  not  clearly  indicate 
that  a  recovery  for  those  years  was  de- 
manded, if  the  facts  were  sufficiently  stated 
and  warranted  a  recovery,  and  defendant 
had,  and  availed  himself  of,  an  opportunity 
to  meet  the  claim  on  which  the  recovery 
was  allowed.  Thompson  v.  New  Haven 
Water  Co.  45:  457,  86  Atl.  585,  86  Conn.  597. 

1058.  A  decree  adjudging  each  defendant 
guilty  of  the  independent  acts  set  out  in 
separate  paragraphs  of  a  petition  charging 
them  with  contempt  of  an  injunction  order, 
and  consolidating  sentence  without  indicat- 
ing how  much  of  the  punishment  was  im- 
posed for  the  disobedience  in  any  particu- 
lar instance  should  be  reversed  if  it  ap- 
pears that  the  defendants  have  been  sen- 
tenced on  any  charge  which,  in  law  or  in 
fact,  does  not  constitute  a  disobedience  of 
the  injunction.  Gompers  v.  Buck's  Stove 
&  Range  Co.  34:  874,  31  Sup.  Ct.  Rep.  492, 
221  U.  S.  418,  55  L.  ed.  797. 

1059.  A  judgment  of  a  trial  judge  holding 
Digest   1-52  L.R.A.(N.S.) 


that  a  petition  has  been  framed  in  compli- 
ance with  the  pleading  act  of  1893  (Ga. 
Civil  Code  1895,  §  4961,  p.  56),  requiring  all 
petitioners  to  "set  forth  the  cause  of  ac- 
tion in  orderly  and  distinct  paragraphs, 
numbered  consecutively,"  will  not  be  re- 
versed unless  it  is  apparent  that  there  has 
been  an  utter  disregard  of  the  provisions  of 
the  act.  Atlanta  &  W.  P.  R.  Co.  v.  Camp, 
15:  594,  60  S.  E.  177,  130  Ga.  1. 

1060.  Although  by  statute  the  general  is- 
sue in  actions  for  personal  injury  is  "not 
guilty,"  which  puts  in  issue  all  material 
allegations  of  the  complaint,  a  judgment 
will  not  be  reversed  because  the  court,  in 
an  action  to  hold  a  father  liable  for  injuries 
inflicted  by  his  son,  accepted  as  a  general 
issue  plea  an  allegation  that  defendant  was 
"not  guilty  of  the  negligent  and  wrongful 
matters  alleged  against  him."  Parker  v. 
Wilson,  43:  87,  60  So.  150,  179  Ala.  361. 

1061.  Under  a  plea  of  not  guilty  in  an  ac- 
tion for  damages  for  pollution  of  a  water 
course,  the  defense  is  available  that  defend- 
ant's use  of  the  stream  is  lawful  and  rea- 
sonable; and  the  rejection  of  a  special  plea 
setting  up  such  defense  is  therefore  nonpre- 
judicial. Arminius  Chemical  Co.  v.  Land- 
rum,  38:  272,  73  S.  E.  459,  113  Va.  7. 

In  justice's  court. 

1062.  Very  liberal  rules  of  construction 
should  be  applied  to  pleadings  in  a  justice 
of  the  peace  court,  and  technical  objections 
will  not  be  allowed  to  reverse  a  judgment, 
where  it  is  apparent  from  an  examination 
of  the  entire  record  that  no  substantial 
right  of  the  party  raising  the  objection 
should  have  been  affected  by  the  ruling, 
and  where  a  reversal  on  that  ground  would 
tend  to  defeat  the  ends  of  justice.  Holden 
v.  Lynn,  38:  239,  120  Pac.  246,  30  Okla.  663. 
Exceptions. 

1063.  The  overruling  of  the  exceptions 
taken  on  the  ground  of  impertinence  to  so 
much  of  the  bill  filed  by  the  United  States 
under  the  act  of  July  2,  1890,  §  4,  to  re- 
strain violations  of  that  act,  as  counted 
upon  facts  occurring  prior  to  its  enactment, 
cannot  be  regarded  as  prejudicial  error, 
where  the  court  gave  no  weight  to  the  tes- 
timony adduced  under  the  averments  com- 
plained of,  except  in  so  far  as  it  tended 
to  throw  light  upon  the  acts  done  after  the 
passage  of  the  statute,  the  results  of  which, 
it  was  charged,  were  being  participated  in 
and  enjoyed  by  the  alleged  combination  at 
the  time  of  the  filing  of  the  bill.  Standard 
Oil  Co.  v.  United  States,  34:  834,  31  Sup. 
Ct.  Rep.  502,  221  U.  S.  1,  55  L.  ed.  619. 
Rulings  on  demurrer. 

Errors   waived   or  cured   below,   see  supra, 
824,  825. 

1064.  An  order  sustaining  demurrers  will 
not  be  reversed  because  they  did  not  state 
the  special  grounds  for  demurrer,  as  re- 
quired by  statute,  if  no  exception  was  taken 
to  them  and  another  demurrer  stated  the 
ground,  which  challenged  petitioner's  right 
to  relief.  Continental  Trust  Co.  v.  Balti- 
more Refrigerating  &  Heating  Co.  46:  887, 
87  Atl.  947,  120  Md.  450. 

1065.  Sustaining   a   demurrer   to   a   good 


128 


APPEAL  AND  ERROR,  VII.  m,  2. 


count  in  a  declaration  is  not  reversihle 
error  if  it  is  so  similar  to  a  count  wliicli 
is  sustained  that  plaintiff  Iiad  tlie  Ijonefit 
of  all  evidence  wliicli  could  have  been 
offered  under  it.  Anderson  v.  Robinson,  47: 
330,  02  So.  512,   182  Ala.  615. 

1066.  There  ia  no  reversible  error  in  sus- 
taining a  demurrer  to  a  pica  to  one  count 
in  a  declaration  whicli  contains  one  good 
count,  where  the  statute  provides  that  no 
judgment  shall  be  reversed  if  there  is  one 
good  count  in  the  declaration.  Alvey  v. 
Hart  wig,  11:  678,  67  Atl.  132,  106  Md.  254. 

1067.  Reversal  for  error  in  sustaining  a 
general  demurrer  to  the  declaration  cannot 
be  avoided  by  the  fact  that  special  excep- 
tions to  it  were  properly  sustained,  and  the 
defects  not  cured  by  amendment.  Bigliam 
Bros.  v.  Port  Artliur  Canal  &  Dock  Co.  13: 
656,  97  S.  W.  686,  100  Tex.  192. 

1068.  A  judgment  for  a  plaintiff  cannot 
stand  when  rendered  upon  a  complaint  con- 
taining a  bad  paragraph,  which  has  been 
held  good  on  demurrer,  unless  the  record 
affirmatively  shows  that  the  judgment  rests 
exclusively  upon  a  good  paragraph.  Lake 
Shore  &  M.  S.  R.  Co.  v.  Barnes,  3:  778,  76 
N.  E.  629,  166  Ind.  7. 

1069.  A  party  cannot  complain  of  the  sus- 
taining of  a  demurrer  to  an  argumenta 
tive  paragraph  of  denial  in  his  pleading, 
where  the  material  facts,  so  far  as  perti- 
nent, aie  admissible  in  evidence  under  his 
general  denial.  Clarke  v.  Darr,  9:  460,  80  N. 
E.  19,  168  Ind.  101. 

1070.  A  retrial  must  be  granted  where  a 
demurrer  to  a  bad  paragraph  of  complaint 
is  overruled,  and  the  paragraph  left  in  the 
complaint,  and  it  is  not  shown  that  the 
judgment  for  plaintiff  rested  wholly  upon 
the  paragraph  which  was  good.  VV.  B. 
Conkey  Co.  v.  Larsen,  29:  116,  91  N.  E. 
163,  173  Ind.  585. 

1071.  A  defendant  in  an  action  to  recover 
damages  for  a  tort  who  pleads  as  a  defense 
facts  arising  by  reason  of  the  law  of  the 
place  where  the  accident  occurred  was  not 
prejudiced  by  tlie  overiuling  of  a  demurrer 
to  the  complaint  based  on  the  fact  that  it 
did  not  allege  tlie  place  of  injury.  McClain 
v.  Lewiston  Interstate  Fair  &  R.  Asso.  25: 
691,  104  Pac.  1015,  17  Idaho,  63. 
Amendments. 

Delay    in    filing    notice    of    amendment    as 
ground  for  reversal,  see  Pleading,  117. 

1072.  Refusal  to  permit  the  pleadings  to 
be  amended  after  the  evidence  has  been  con- 
cluded is  not  error,  where  there  is  no  proof 
to  support  the  allegations  of  the  proposed 
amendment.  Heath  v.  Potlatch  Lumber 
Co.  27:  707,  108  Pac.  343,  18  Idaho,  42. 

1073.  If,  on  appeal,  it  appears  that  the 
original  bill  is  broad  enough  to  admit  the 
evidence  and  sustain  the  decree  pronounced, 
the  decree  will  not  be  reversed  for  failure 
to  mature  an  amended  bill  unnecessarily 
filed.  Flovd  v.  Duffy,  33:  883,  69  S.  E.  993, 
68    W.   Va.    339. 

1074.  A  trial  court  does  not  commit  preju- 
dicial error  by  denying  a  motion  to  make 
a  complaint  more  definite  and  certain,  where 
the  facts  called  for  are  known  to  the  mov- 
Digest   1-52  I^R.A.CN.S.) 


ing  party,  and  the  motion  is  apparently  for 
the  sole  purpose  of  requiring  all  the  facts 
wliich  are  to  be  relied  upon  to  be  stated  in 
the  complaint,  in  order  that  the  action  may 
be  settled  on  general  d^unurrer.  Chicago, 
R.  I.  &  P.  R.  Co.  V.  Martin,  27:  164,  105  Pac. 
451,  81  Kan.  344. 

1075.  The  refusal  of  the  trial  court  to  re- 
quire the  plaintiff's  petition  to  be  made 
more  definite  and  certain  will  not  be  dis- 
tuibed  on  appeal,  where  it  affirmatively  ap- 
pears from  the  record  that  the  defendant 
was  not  prejudiced  thereby.  Chic;  go,  R.  I. 
&  P.  R.  Co.  V.  Logan,  Snow,  &  Co.  29:  663, 
105  Pac.  343,  23  Okla.  707. 

1076.  No  complaint  can  be  ma^'e  of  the  fil- 
ing of  an  amended  complaint  during  vaca- 
tion under  order  of  court,  where  no  harm 
results  to  the  complaining  party,  the  issue 
having  been  completed  without  the  amend- 
ment. Bramblett  v.  Deposit  Bank,  6:  612, 
02  S.  W.  283,  122  Ky.  324. 

1077.  Permitting  amendment  of  a  com- 
plaint after  trial  is  not  ground  for  reversal 
if  the  original  complaint  was  suflficient  to 
warrant  the  verdict  so  that  the  amendment 
was  unnecessary.  Estey  Organ  Co.  v.  Leh- 
man, 11:  254,  111  N.  W.  1C97,  132  Wis.  141. 

1078.  The  allowance,  upon  due  notice  and 
argument,  and  a  long  time  prior  to  the 
trial,  of  an  amendment  of  a  complaint  in  an 
action  to  recover  damages  for  delay  in 
transportation  of  live  stock,  changing  the 
point  of  destination  from  the  end  of  the 
defendant's  line,  as  originally  alleged,  to  a 
point  beyond  such  line,  is  not  prejudicial 
to  the  defendant,  where  the  amendment  is 
in  accordance  with  the  allegations  of  the 
answer  as  to  the  place  of  destinat'  n.  and 
the  court  strictly  confines  the  damages  to 
the  loss  occasioned  by  the  neglect  of  de- 
fendant on  its  own  line.  Fell  v.  Union  P. 
R.  Co.  28:  I,  88  Pac.  1003,  32  Utah,  101. 
Striking  out. 

Striking  out,  generally,  see  Pleading,  I. 

B. 

1079.  Refusal  to  compel  the  striking  out 
of  affirmative  defenses  from  a  division  of 
an  answer  containing  denials  is  prejudicial 
error  where  the  complaint  is  dismissed  be- 
cause plaintiff  refuses  to  proceed  to  trial 
with  the  surplus  matter  in  the  answer. 
McKay  v.  McCarthy,  34:  911,  123  N.  W. 
755,   146  Iowa,  546. 

1080.  A  judgment  will  not  be  reversed  be- 
cause of  refusal  of  the  trial  court  to  strike 
out  portions  of  a  pleading  because  redun- 
dant, or  a  legal  conclusion,  in  the  absence  of 
anything  to  show  prejudice  therefrom. 
Smith  V.  Hicks,  19:  938,  98  Pac.  138,  14  N. 
M.  560. 

1081.  It  is  not  reversible  error  to  refuse  to 
strike  matter  from  an  answer  which  may 
properly  be  considered  in  mitigation  of 
damages,  or  the  presence  of  which  does  not 
prejudice  the  complainant.  McNamara  v. 
McAllister,  34:  436,  130  N.  W.  26,  150  Iowa, 
243. 

1082.  Refusal  to  strike  pleadings  is  not 
prejudicial  error  unless  it  results  in  the 
submission  of  erroneous  issues  to  the  jury. 


APPEAL  AND  ERROR,  VII.  m,  3. 


129 


Jones  V.  Ford,  38:  777,  134  N.  W.  569,  154 
Iowa,  549. 

1083.  There  is  no  prejudice  in  striking 
from  an  answer  a  portion  setting  out  an 
ordinance  pleaded  in  the  petition,  and 
stating  the  legal  rights  claimed  under  it. 
Ward  V.  Ely-Walker  Dry  Goods  Bldg.  Co. 
45:  550,  154  S.  W.  478,  248  Mo.  348. 

1084.  Striking  allegations  from  an  answer 
is  not  prejudicial  if  all  the  evidence  bear- 
ing upon  the  subject  is  admitted.  Ward  v. 
Ely-Walker  Dry  Goods  Bldg.  Co.  45:  550, 
154  S.  W.  478,  248  Mo.  348. 

1085.  It  is  not  reversible  error  to  enter- 
tain a  motion  to  strike  out  a  separate  de- 
fense to  an  action  at  the  trial,  if  the  defense 
is  insufficient  in  law  and  has  not  been  de- 
murred to.  Ampersand  Hotel  Co.  v.  Home 
Ins.  Co.  28:  218,  91  N.  E.  1099,  198  N.  Y. 
495. 

1086.  It  is  not  prejudicial  error  to  strike 
out  a  special  plea  if  the  facts  therein  set 
out  may  be  proved  under  the  general  issue. 
Hays  V.  Miller,  11:  748,  43  So.  818,  150  Ala. 
621. 

1087.  It  is  not  reversible  error  to  strike 
out  a  plea  of  the  statute  of  limitations 
sought  to  be  made  available  before  trial, 
where  all  facts  bearing  upon  the  availability 
of  the  pleading  are  stated  in  the  declara- 
tion, and  the  determination  of  the  court 
upon  the  question  is  reviewable  at  what- 
ever stage  of  the  trial  it  is  made.  Snare 
&  Triest  Co.  v.  Friedman,  40:  367,  169  Fed. 
1,  94  C.  C.  A.  369. 

Criminal   cases. 
See  also  supra,  766. 

1088.  Summarily  overruling  a  plea  in 
abatement  of  a  criminal  prosecution,  on  the 
ground  that  there  had  been  no  preliminary 
examination,  without  requiring  issue  to  be 
joined  thereon,  is  not  prejudicial  error 
where  the  record  transmitted  by  the  examin- 
ing magistrate  shows  that  there  had  been 
an  examination  and  accused  had  been  lield 
to  bail.  Hack  v.  State,  45:  664,  124  N.  W- 
492,  141  Wis.  346. 

3.  As  to  evidence. 

a.  In  general;  erroneous  admissions. 

(1)   In  general;  various  particular 
matters. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Errors  as  to,  waived  or  cured  below,  gee 
supra,  VII.  k,  3;  infra,  VII  m,  3,  a, 
(5). 

See   also   supra,    831. 

1089.  Defendant's  failure  to  introduce  m 
evidence  its  by-laws  in  an  action  upon  a 
benefit  certificate  will  not  warrant  a  rever- 
sal, where  breach  of  conditions  in  the  certifi- 
cate is  shown,  on  the  theory  that  the  by- 
laws may  have  nullified  express  provisions 
in  the  certificale.  Mudge  v.  Supreme  Court 
Digest   1-52  Ii.R.A.(N.S.)  9 


I.  0.  F.  14:  279,  112  N.  W.  1130,  149  Mich. 
467. 

1090.  Failure  to  rule  upon  objections  to 
jurisdiction  and  the  admission  of  evidence 
is  not  fatal  error,  if  jurisdiction  exists  and 
all  evidence  admitted  was  pertinent  and 
competent.  Haaren  v.  Mould,  24:  404,  122 
N.  W.  921,  144  Iowa,  296, 

1091.  The  admission  of  evidence  not  le- 
gally prejudicial  cannot  be  complained  of. 
Morris  v.  St.  Paul  City  R.  Co.  17:  598, 
117  N.  W.  500,  105  Minn.  276. 

1092.  The  erroneous  admission  of  evidence 
is  not  reversible  error  if  the  result  must 
have  been  the  same  had  the  evidence  been 
excluded.  Dumphy  v.  New  York,  N.  H.  & 
H.  R.  Co.  13:  1 152,  82  N.  E.  675,  196  Mass, 
471. 

1093.  The  erroneous  admission  of  evidence 
which  is  harmless  does  not  require  reversal. 
State  V.  Gillies,  43:776,  123  Pac.  93,  40 
Utah,  541. 

1094.  The  admission  of  hearsay  evidence  is 
not  available  error  when  it  is  not  shown  to 
have  prejudiced  the  complainant.  National 
Bank  v.  DufJ",  16:  1047,  94  Pac.  260,  77  Kan, 
248. 

1095.  The  admission  of  incompetent  evi- 
dence cannot  be  held  to  be  harmless  if  it 
may  have  led  to  the  verdict.  Zucker  v. 
Whitridge,  41 :  683,  98  N.  E.  209,  205  N. 
Y.  50. 

1096.  The  erroneous  admission,  in  an  ac- 
tion against  an  alleged  seller  of  wood  alco- 
hol, the  use  of  which  caused  the  death  of 
the  purchaser,  who  had  asked  for  and  sup- 
posed he  had  bought  grain  alcohol,  of  a 
statement  of  the  purchaser  as  to  where  he 
got  the  liquor,  constitutes  prejudicial  error, 
where  the  identity  of  the  seller  is  a  vital  fact 
sharply  in  issue  and  necessary  to  sustain 
the  plaintiff's  case.  Campbell  v.  Brown, 
26:  1 142,  106  Pac.  37,  81  Kan.  480. 

1097.  A  judgment  based  on  a  verdict  for  a 
lump  sum  must  be  reversed  where  the  com- 
plaint seeks  damages  for  a  lump  sum  on 
different  grounds,  and  incompetent  evidence 
is  admitted  over  objection  in  support  of  any 
one  of  them.  Howe  v.  Frith,  17:  672,  95 
Pac.  603,  43  Colo.   75. 

1098.  Where  parol  evidence  as  to  the  con- 
tents of  writings  is  properly  objected  to,  , 
it  is  error  to  admit  it,  even  though  in 
doing  so  the  trial  judge  permits  its  intro- 
duction subject  to  being  held  of  no  probav 
five  value  if  contradicted  by  the  writings 
when  they  are  subsequently  introduced,  as 
parol  evidence  is  never  admissible  where 
there  is  higher  written  evidence  obtainable. 
North  Georgia  Mill,  Co,  v,  Henderson  Ele- 
vator Co.  24:  235,  60  S.  E.  258,  130  Ga. 
113. 

1099.  Admitting  evidence  that  witnesses 
who  testify  to  the  amount  of  damage  for 
injury  to  a  house  by  removing  the  coal  be- 
neath it  base  their  estimate  partly  on  what 
it  would  cost  to  move  the  house  and  put  a 
new  foundation  under  it,  is  not  prejudicial 
error,  in  an  action  to  recover  the  damages 
from    the    one    responsible    for   the    injury. 


130 


APPEAL  AND  ERROR,  VII.  m,  3. 


Collins  V.  Gleason  Coal  Co,  18:  736,  115  N. 
W.  497,  140  Iowa,  114. 

1100.  It  is  not  reversible  error  to  permit 
a  witness  in  an  action  by  a  servant  to  hold 
his  master  liable  for  personal  injuries,  who 
testifies  as  to  measurements  taken  immedi- 
ately after  the  accident,  to  state  that  he 
was  a  member  of  a  committee  whose  duty 
it  was  to  investigate  the  circumstances  of 
accidents,  and  that  he  took  the  measure- 
ments in  making  such  examination.  Duffey 
V.  Consolidated  Block  Coal  Co.  30:  1067,  124 
N.  W.  609,  147  Iowa,  225. 

1101.  In  an  action  for  injury  to  a  railroad 
employee  through  the  burning  of  a  trestle, 
it  is  error  to  admit  evidence  that,  months 
before,  quantities  of  drift  wood  had  float- 
ed and  lodged  against  the  trestle,  under  a 
promise  to  show  that  the  conditions  contin- 
ued until  the  time  of  the  accident,  if  the 
promise  is  not  fulfilled,  so  that  it  does  not 
appear  that  such  condition  continued.  Root 
V.  Kansas  City  S.  R.  Co.  6:  212,  92  S.  W. 
621,  195  Mo.  348. 

1102.  Admitting  expert  testimony  upon 
the  question  of  the  dangerous  character  of  a 
machine  at  which  a  minor  is  set  at  work, 
in  an  action  by  him  to  hold  his  employer 
liable  for  an  injury,  is  not  reversible  error 
where  the  machinery  is  so  dangerous  that 
the  court  will  take  judicial  notice  of  the 
danger.  Braasch  v.  Michigan  Stove  Co. 
20:  500,  118  N.  W.  366,  153  Mich.  652. 

1103.  Error  in  admitting  evidence  in  an 
action  for  personal  injuries  caused  by  the 
dropping  of  the  lever  or  boom  rail  of  a 
derrick,  that  the  defendant's  servant,  who 
was  operating  the  derrick,  upon  witnessing 
the  accident,  exclaimed  that  "the  damn 
thing  was  about  wore  out  anyhow,  and  they 
would  keep  running  it  until  they  killed 
somebody,"  is  prejudicial  and  ground  for 
reversal.  Illinois  C.  R.  Co.  v.  Lowery, 
49:  1149,  63  So.   952,   184  Ala.  443. 

1104.  The  admission  of  evidence  in  an  ac- 
tion against  an  electric  light  company  for 
the  death  of  a  person  because  of  grounded 
current,  that  there  were  means  by  which 
the  grounded  portion  might  have  been  cut 
out,  is  not  prejudicial,  where  the  company 
had,  before  turning  the  current  into  the  cir- 
cuit containing  the  ground,  concluded  that 
the  ground  was  not  located  there,  so  that 
it  would  not  have  made  use  of  such  appli- 
ances had  they  been  part  of  its  equipment. 
JIarrison  v.  Kansas  City  Electric  Light  Co. 
7:  293,  93  S.  W.  951,  195  Mo.  606. 

1105.  There  is  no  prejudicial  error  in  ad- 
mitting evidence  in  rebuttal  as  to  the  man- 
ner of  fastening  the  trolley  rope  some  time 
after  an  accident  was  caused  by  one  left 
lying  on  the  car  floor,  in  an  action  to  hold 
the  company  liable  for  such  injury,  where 
the  company  had  offered  evidence  as  to  the 
custom  of  fastening  ropes,  which  extended 
over  a  long  period  of  time.  Denver  City 
Tramway  Co.  v.  Hills,  36:  213,  116  Pac.  125, 
50  Colo.  328. 

1106.  The  erroneous  admission,  in  an  ac- 
tion against  a  street  car  company  to  recover 
damages  for  the  death  of  a  person  killed 
on  the  track,  of  evidence  of  a  statement  by 
Pigest  1-52  L.R.A.(N.S.) 


the  conductor  at  the  time  of  the  accident 
admonishing  the  motorman  to  make  no  state- 
ment, is  not  sufficiently  prejudicial  to  re- 
quire a  reversal  of  a  judgment  against  the 
company.  Louisville  R.  Co.  v.  Johnson, 
20:  133,  115  S.  W.  207,  131  Ky.  277. 

1107.  The  admission  of  evidence  of  condi- 
tions of  ill  health  and  sickness  in  the  family 
of  one  for  whose  death  the  action  is 
brought,  subsequent  to  his  death,  the  direct 
and  inevitable  tendency  of  which  was  to 
arouse  the  sympathy  of  the  jury  to  the  end 
that  they  might  improperly  enhance  the 
amount  of  damages  to  be  awarded  beyond 
what  the  competent  evidence  in  the  case 
would  have  permitted,  is  prejudicial  error. 
Simoneau  v.  Pacific  Electric  R.  Co.  49:  737, 
136  Pac.  544,  166  Cal.  264. 

1108.  The  admission  of  evidence  relating 
to  the  pecuniary  ability  of  the  father  of  an 
infant  suing  for  damages  for  personal  in- 
juries, is  not  reversible  error,  if  it  does  not 
clearly  appear  that  but  for  such  evidence 
the  result  might  have  been  more  favorable 
to  the  complaining  party.  Kelly  v.  South- 
ern Wisconsin  R.  Co.  44:  487,  140  N.  W. 
60,   152  Wis.  328. 

1109.  The  admission  in  evidence  of  an  en- 
try of  temperature  in  a  private  diary  of  a 
person  since  deceased,  in  an  action  to  re- 
cover damages  for  injuries  caused  by  a  fall 
upon  a  ridge  of  ice  on  the  sidewalk,  is  prej- 
udicial. Arnold  v.  Hussey,  51:  813,  88  Atl. 
724,  111  Me.  224. 

1110.  Permitting  evidence  of  defendant's 
refusal  to  settle  in  an  action  to  hold  the 
owner  ol  an  automobile  liable  for  injuries 
due  to  collision  with  a  pedestrian,  after 
striking  evidence  that  he  refused  to  do  so 
because  his  liability  insurance  contract  pre- 
vented such  action,  is  error,  although  no 
mention  is  made  in  the  testimony  admitted 
of  such  insurance.  Birch  v.  Abercrombie, 
50:  59,  133  Pac.  1020,  74  Wash.  486. 

1111.  In  an  action  against  a  railroad  com- 
pany for  damages  for  personal  injuries,  it 
is  prejudicial  error  to  allow  the  plaintiff 
to  testify  as  to  the  quantum  of  damages 
sustained,  as  it  is  an  invasion  of  the  prov- 
ince of  the  jury.  Chicago,  R,  I.  &  P.  R. 
Co.  V.  Teese,  52:  167,  140  Pac.  1166,  42  Okla. 
188. 

1112.  In  an  action  on  a  life  insurance 
policy,  where  one  of  the  defenses  set  up  in 
the  answer  is  that  the  insured  had  falsely 
and  fraudiSlently  answered  certain  questions 
propounded  to  him  in  his  application  for 
insurance,  it  is  error  to  admit  evidence  to 
the  eft'ect  that  the  general  reputation  of 
the  insured  for  being  a  truthful  and  honest 
man  in  the  neighborhood  in  which  he  re- 
sided was  good,  for  the  purpose  of  rebutting 
direct  evidence  tending  to  establish  the 
allegation  of  fraud.  Great  Western  L. 
Ins.  Co.  V.  Sparks,  49:  724,  132  Pac.  1092, 
38  Okla.  395. 

1113.  The  admission  of  evidence  of  a  cus- 
tom of  various  agents  of  a  carrier  in  receiv- 
ing and  checking  baggage,  contrary  to  the 
provisions  of  a  contract  between  the  car- 
rier and  the  holder  of  a  ticket  is  error, 
where  it  is  not  shown  that  the  custom  of 


APPEAL  AND  ERROR,  VII.  m,  3. 


131 


Buch  agents  was  expressly  or  impliedly 
known  to,  and  acquiesced  in  by,  the  govern- 
ing officials  of  the  carrier.  Southern  R.  Co. 
V.  Dinl<ins  &  D.  Hardware  Co.  43:  806,  77 
S.  E.  147,  139  Ga.  332. 

1114.  It  is  not  reversible  error  to  permit 
an  admission  of  fairness  in  the  publication 
of  the  final  proceedings  in  a  libel  suit  to 
take  the  place  of  proof  of  such  publication, 
in  an  action  for  libel  growing  out  of  the 
former  proceedings.  IMcriwether  v.  George 
Knapp  &  Co.  16:  953,  109  S.  W.  750,  211  Mo. 
199. 

1115.  The  admission  of  incompetent  evi- 
dence on  the  question  of  the  sanity  of  one 
being  sued  for  divorce  because  of  charges 
against  his  wife  cannot  be  held  to  be  harm- 
less because  he  did  not  claim  to  be  sane, 
if  it  does  not  appear  that  it  did  not  weigh 
with  the  court  in  reaching  its  conclusion. 
Mathewson  v.  Mathewson,  18:  300,  69  Atl. 
646,  81  Vt.  173. 

1116.  In  a  will  contest  in  which  there  was 
no  evidence  that  contestant  was  not  tes- 
tator's son,  it  is  not  prejudicial  to  permit 
him  to  show  that  he  resembled  testator. 
O'Dell  V.  Goff,  10:  989,  112  N.  W.  736,  149 
Mich.  152. 

1117.  On  the  trial  of  an  action  brought  up- 
on a  promissory  note,  the  execution  of  which 
is  denied  by  the  defendant,  who  testifies  as 
a  witness  in  his  own  behalf,  it  is  reversible 
error  to  permit  him  to  introduce  evidence  of 
his  general  reputation  for  truth  and  veraci- 
ty, where  his  testimony  is  not  impeached  in 
any  manner  recognized  by  the  rules  of  evi- 
dence. First  Nat.  Bank  v.  Blakeman,  12: 
364,  91  Pac.  868,  19  Okla.  106. 

1118.  Admission,  in  an  action  on  a  bond 
given  to  secure  the  release  of  a  lien  im- 
posed on  real  estate,  of  recitals  in  the  re- 
lease deeds,  to  the  effect  that  the  debt  se- 
cured by  the  lien  was  discharged,  although 
it  was  not  binding  on  the  obligor  in  the 
bond,  is  not  prejudicial  error  where  the 
legal  effect  of  the  transaction  was  to  ef- 
fect such  discharge.  Barnes  v.  Crockett, 
36:  464,  68  S.  E.  983,  111  Va.  240. 
Criminal  cases. 

Error  cured  by  instruction,  see  infra,  1199. 
See  also  infra,  1149-1153,  1174-1177,  1274. 

1119.  Where  the  legal  evidence  in  a  case 
conclusively  shows  that  a  defendant  is  guil- 
ty, and  where  the  jury  could  not  rationally 
arrive  at  any  other  conclusion,  ordinarily 
errors  committed  by  the  trial  court  in  the 
introduction  or  rejection  of  evidence  will 
become  immaterial,  and  will  not  constitute 
grounds  for  reversal.  Woody  v.  State, 
49:  479,  136  Pac,  430,  10  Okla.  Crim.  Rep. 
322. 

1120.  Technical  errors  in  rulings  on  evi- 
dence, which  do  not  result  in  prejudice  to 
the  accused,  and  which  can  in  no  reasonable 
way  affect  the  result  of  the  trial,  are  not 
sufficient  basis  for  granting  a  new  trial  in 
criminal  prosecutions.  State  v.  Gardner, 
2:  49,  104  N.  W.  971,  96  Minn.  318. 

1121.  The  conclusion  of  a  trial  court  that 
dying  declarations  were  admissible  in  evi- 
dence will  not  be  disturbed  on  appeal,  unless 
it  is  manifest  that  the  facts  did  not  war- 
Dieest  1-52  I<.R.A.(N.S.) 


rant  the  conclusion.     Gipe  v.  State,  1:  419, 
75  N.  E.  881,  165  Ind.  433. 

1122.  The  admission  in  rebuttal  upon  the 
trial  of  one  accused  of  murder,  of  evidence 
denying  that  the  deceased  had  driven  up  to 
the  scene  of  the  tragedy  and  stated  that  he 
had  a  gallon  of  whisky  and  nothing  to  do 
but  ride  around  and  drink  it,  as  testified 
to  by  the  accused,  is  not  reversible  error. 
Lindsay  v.  State,  50:  1077,  63  So.  832,  66 
Fla.  341. 

1123.  It  is  reversible  error  in  the  trial  of 
a  prosecution  for  homicide  for  the  court  to 
admit  testimony  as  to  declarations  between 
an  officer  who  had  accused  under  arrest  and 
the  state's  witnesses,  or  other  persons,  in 
the  presence  of  the  accused,  tending  to  con- 
nect him  with  the  offense  charged,  and  that 
the  accused  remained  silent  as  to  such  dec- 
larations. Vaughan  v.  State,  42:  889,  127 
Pac.  264,  7  Okla.  Crim.  Rep.  685. 

( Annotated  } 

1124.  Error  in  receiving  evidence  of 
declarations  of  one  conspirator  in  the 
other's  presence,  charging  him  with  the 
crime,  in  a  trial  of  the  latter,  is  harmless 
where  his  responses  contained  counter- 
charges. People  V.  Friedman,  45:  55,  98  N. 
E.  471,  205  N.  Y.  161. 

1125.  The  admission  of  evidence  of  the 
finding  of  footprints  at  the  place  where  a 
crime  was  alleged  to  have  been  committed 
is  reversible  error  where  it  is  not  shown 
that  they  corresponded  in  any  way  with 
any  shoes  ever  worn  by  the  accused,  and 
the  only  fact  that  tended  to  connect  him 
with  them  was  that  they  led  in  the  direc- 
tion of  his  house.  Kinnan  v.  State,  27: 
478,  125  N.  W.  594,  86  Neb.  234. 

1126.  The  introduction  in  evidence  in  a 
criminal  prosecution  of  the  record  of  a  de- 
cree in  equity  against  accused,  founded  on 
ex  parte  affidavits,  of  which  such  affidavits 
form  a  part,  is  prejudicial  to  accused,  under 
the  constitutional  provision  giving  him  the 
right  to  be  confronted  by  the  witnesses 
against  him.  State  v.  Weil,  26:  461,  65  S.. 
E.  634,  83  S.  C.  478. 

1127.  In  the  absence  of  a  showing  that 
the  bloody  and  soiled  clothing  of  the  de- 
cedent would  tend  to  throw  light  upon  some 
material  inquiry  in  the  case,  the  introduc- 
tion of  it  in  evidence  upon  the  trial  of  the 
accused  in  a  homicide  case  is  error.  Flege 
V.  State,  47:  1 106,  142  N.  W.  276,  93  Neb. 
610. 

1128.  The  admission  in  evidence  upon  a 
trial  for  homicide,  where  the  only  question 
before  the  jury  is  whether  or  not  the  de- 
fendant committed  the  murder,  of  the 
clothing  of  the  deceased,  which  in  no  way 
tends  to  identify  the  murderer,  but  tends 
merely  to  excite  the  passions  and  inflame 
the  minds  of  the  jurors,  is  error.  McKay  v. 
State,  39:  714,  132  N.  W.  741,  135  N.  W. 
1024,  90  Neb.  63,  91  Neb.  281. 

1129.  Evidence  that  another  check  drawn 
by  accused  was  not  paid,  without  showing 
that  there  were  no  funds  to  meet  it,  is 
prejudicial  in  a  prosecution  for  obtaining 
money  on  a  bad  check,  where  accused  tes- 
tifies that  he  thought  he  had  made  arrange- 


132 


APPEAL  AND  ERROR,  VII.  m,  3, 


ments  for  the  payment  of  the  check  for  the 
making  of  which  he  is  on  trial.  State  v. 
Foxton,   52:  919,   147   N.   W.   347,  —   Iowa, 

Equity  case. 

1130.  An  equity  case  will  not  be  reversed 
because  of  admission  of  incompetent  evi- 
dence, but  such  evidence  will  be  disregard- 
ed, and  such  judgment  rendered  as  equity 
and  justice  mav  require.  Home  Teleph. 
Co.  V.  Carthage*  48:  1055,  139  S.  W.  547, 
235  Mo.  644. 


(2)    Immaterial;    admitted   or   uncon- 
troverted  facts. 

(See  also   same   heading  in  Digest  L.R.A. 
1-10.) 

1131.  The  admission  of  immaterial  evi- 
dence will  not  require  a  reversal  if  it  is 
nonprejudicial.  Duflfey  v.  Consolidated 
Block  Coal  Co.  30:  1067,  124  N.  W.  609, 
147  Iowa,  225. 

1132.  Admisssion  of  proof  of  local  custom 
as  to  the  right  of  inspection  by  the  pur- 
chaser of  a  crop,  if  error,  is  immaterial, 
where  such  right  is  given  by  the  contract 
as  practically  interpreted  by  the  parties. 
Mitau  V.  Roddan,  6:  275,  84  Pac.  145,  149 
Cal.  1. 

1133.  The  admission  of  evidence  as  to  the 
use  of  a  machine  after  suit  brought  for  its 
price  is  immaterial  where  the  buyer  had 
accepted  it  before  suit  brought.  Fred  W. 
Wolf  Co.  v.  Monarch  Refrigerating  Co.  50: 
808,  96  N.  E.  1063,  252  111.  491. 

1134.  In  an  action  for  damages  for  wrong- 
ful refusal  to  send  a  telegram  notifying  the 
sender's  husband  of  the  sickness  of  their 
child,  there  is  no  prejudicial  error  in  ad- 
mitting evidence  of  why  the  child  was  buried 
so  soon  after  its  death.  Cordell  v.  Western 
U.  Teleg.  Co.  22:  540,  63  S.  E.  71,  149  N.  C. 
402. 

1135.  The  admission  in  evidence  of  an  in- 
sufficiently proved  letter  is  not  prejudicial 
error  if  it  throws  no  particular  light  on 
the  real  question  in  issue.  Rose  v.  Monarch, 
42:  660,  150  S.  W.  56. 

1136.  The  admission  of  evidence  to  the  ef- 
fect that  there  were  several  departments  in 
defendant's  department  store  is  nonpreju- 
dicial in  an  action  by  an  employee  of  the 
ladies'  suit  department,  to  hold  the  em- 
ployer liable  for  injury  due  to  the  negli- 
gence of  the  elevator  operator,  under  a 
statute  making  the  employer  liable  for  in- 
juries to  one  employee  through  the  negli- 
gence of  another  in  a  different  department 
of  service.  Judd  v.  Letts,  41:  156,  111  Pac. 
12,  158   Cal.  359. 

1137.  The  admission  in  an  action  by 
county  commissioners  to  hold  a  railroad 
company  liable  for  personal  injuries  for 
which  they  had  been  compelled  to  pay,  be- 
cause of  a  defect  in  a  higliway  alleged  to 
have  been  due  to  the  act  of  the  railroad 
company,  of  an  agreement  made  after  the 
accident  undertaking  to  relieve  the  rail- 
road company  from  further  liability  after 
Digest  1-52  L.R.A.(N.S.) 


making  certain  changes  in  a  highway,  is 
not,  altliough  irrelevant,  prejudicial  error, 
because  having  no  tendency  to  prejudice 
defendant's  case.  Baltimore  &  0.  R.  Co. 
v.  Howard  County  Comrs.  40:  1172,  73  Atl. 
656,  111   Md.   176. 

1138.  Refusal  of  the  trial  court,  which  is 
hearing  a  case  without  a  jury,  to  strike 
evidence  which  is  incompetent  because  not 
responsive  to  the  question  asked,  is  not 
ground  for  reversal  where  it  is  apparent 
that  such  evidence  was  not  regarded  by  the 
court  as  a  material  factor  in  the  determi- 
nation of  the  facts  found,  which  are  sus- 
tained by  competent  evidence.  Re  Fallon, 
32:  486,  124  N.  W.  994,  110  Minn.  213. 

1139.  The  verdict  of  a  jury  will  not  be 
reversed  on  account  of  the  admission  of 
improper  testimony  or  the  giving  of  an  er- 
roneous instruction,  when  it  clearly  appears 
that  if  such  evidence  had  been  excluded  and 
such  instruction  refused  the  result  could 
not  thereby  have  been  changed.  State  v. 
Davis,  32:  501,  69  S.  E.  939,  68  W.  Va.  142. 

1140.  In  an  action  for  trespass  and  as- 
sault, the  admission  of  evidence  as  to  state- 
ments of  a  doctor  as  to  the  remedy  when 
administering  a  drug  to  quiet  the  wife  of 
the  one  against  whom  the  demonstration 
was  made  is  harmless  if  erroneous.  Saund- 
ers v.  Gilbert,  38:  404,  72  S.  E.  610,  156 
N.  C.  463. 

1141.  Error  in  the  admission  of  evidence 
on  the  question  of  the  value  of  personal 
property  sold  by  the  plaintiff  to  the  defend- 
ant is  immaterial,  where  it  would  be  errone- 
ous not  to  direct  a  verdict  in  the  plaintiff's 
favor  for  the  contract  price  of  the  property. 
Kelly  V.  Pierce,  12:  180,  112  N.  W.  995,  16 
N.  D.  234. 

1142.  The  admission,  in  a  proceeding  to 
condemn  a  right  of  way  for  a  railroad,  of 
evidence  as  to  the  practicability  of  another 
route,  is  harmless,  where  the  jury  finds  the 
route  selected  to  be  necessary.  Boyne  City, 
G.  &  A.  R.  Co.  V.  Anderson,  8:  306,  109  N.  W. 
429,  146  Mich.  328. 

1143.  The  erroneous  admission  in  evi- 
dence of  a  conversation  between  a  man  and 
his  wife  is  not  reversible  error,  if  the  fact 
sought  to  be  established  by  it  was  not  in 
dispute.  Neice  v.  Chicago  &  A.  R.  Co.  41: 
162,  98  N.  E.  989,  254  111.  595. 

1144.  The  erroneous  admission  of  evidence 
as  to  a  woman's  title  to  personal  property 
is  immaterial  in  an  action  by  her  personal 
representative  to  recover  it  from  grantees 
of  her  husband,  who  claimed  under  her  will. 
Hopkins  v.  Heywood,  49:  710,  86  Atl.  305, 
86  Vt.  486. 

1145.  Receipt  in  evidence  of  a  telegram 
from  a  ticket  agent,  stating  the  sale  of  a 
ticket  to  a  member  of  a  party  calling  for 
transportation  to  a  certain  station,  in  an 
action  to  hold  the  carrier  liable  for  refusing 
to  carry  the  one  for  whom  it  was  intended 
to  such  station,  is  not  prejudicial  where 
counsel  has  admitted  the  fact  at  the  trial. 
Light  v.  Detroit  &  M.  R.  Co.  34:  282,  130 
N.  W.  1124,  165  Mich.  433. 

1146.  In  an  action  for  the  negligent  fail- 
ure of  a  carrier  properly  to  bed  a  car  so 


APPEAL  AND  ERROR,  VII.  m,  3, 


133 


that  it  would  be  reasonably  safe  for  the 
transportation  of  stock,  where  tlie  proof  is 
undisputed  that  the  car  was  unsafe  because 
of  improper  bedding,  testimony  concerning 
the  custom  of  the  carrier  in  preparing  other 
cars  for  like  shipments,  if  irrelevant,  is 
without  prejudice  to  defendant.  Allen  v. 
Chicago,  B.  &  Q.  R.  Co.  23:  278,  118  N.  W. 
655,  82  Neb.  726. 

1147.  Permitting  an  incompetent  witness 
to  testify  to  the  possibility  of  purifying 
mine  water  before  casting  it  into  a  stream 
is  immaterial,  where  the  miner  would  be 
liable  for  the  consequent  injury,  even  if  it 
was  impossible  to  purify  it.  Arminius 
Chemical  Co.  v.  Landrum,  38:  272,  73  S.  E. 
459,  113  Va.  7. 

1148.  Admitting,  in  an  action  to  hold  a 
connecting  express  company  liable  for  fail- 
ure to  deliver  a  package  to  the  consignee 
according  to  a  contract  made  with  the  initial 
company,  evidence  of  a  telegraph  notifica- 
tion of  the  terms  of  the  contract  which 
was  received  by  the  telegraph  agent  at 
destination,  who  was  also  the  express  agent, 
is  not  prejudicial  error,  since  the  company 
was  bound  to  ascertain  the  terms  of  the 
contract  before  accepting  the  package  for 
transportation.  Alcorn  v.  Adams  Express 
Co.  52:  858,  146  S.  W.  747,  148  Ky.  352. 

(Annotated) 
Criminal  cases. 

1149.  Error  in  permitting  to  come  to  the 
attention  of  the  jury  evidence  of  the  cir- 
culation, after  the  offense  occurred,  of  a  pe- 
tition demanding  the  discharge  from  his  em- 
ployment of  one  accused  of  assaulting  his 
child,  is  not  prejudicial,  where  accused  has 
practically  admitted  his  guilt  as  charged. 
People  V.  Green,  21:  216,  "119  N.  W.  1087, 
155  Mich.  524. 

1150.  Upon  trial  of  one  for  forging  checks 
of  a  corporation,  the  de  facto  existence  of 
which  is  not  disputed,  defendant  is  not 
prejudiced  by  the  introduction  in  evidence 
of  its  articles  of  incorporation,  which  are 
not  admissible  in  evidence  because  not  at- 
tested as  required  by  statute.  State  v. 
Brown,  24:  545,  102  Pac.  641,  36  Utah,  46. 

1151.  Whether  or  not  one  mailing  a  letter 
giving  information  as  to  where  an  abortion 
would  be  performed,  contrary  to  statute, 
had  a  physician's  sign  on  his  office,  is  im- 
material, and  it  is  not  error  to  refuse  to 
permit  a  witness  to  be  recalled  for  cross- 
examination  on  that  question.  Kemp  v. 
United  States,  51:  825,  41  App.  D.  C.  539. 

1152.  The  admission  in  evidence,  in  favor 
of  the  state,  upon  the  trial  of  one  accused 
of  homicide,  of  testimony  given  by  a  wit- 
ness upon  a  former  trial  upon  a  showing 
that  a  subpoena  had  been  issued  for  the 
witness  and  had  been  returned  indorsed  by 
the  sheriff  of  the  county  that  the  said  wit- 
ness could  not  be  found  in  the  county  is 
not  reversible  error  where  the  accused,  upon 
taking  the  witness  stand,  admitted  the  ma- 
terial facts  as  testified  to  by  the  witness, 
to  be  true.  Henry  v.  State,  52:  113,  136 
Pac.  982,  10  Okla.  Crim.  Rep.  369. 

1153.  Where  a  defendant  was  convicted  of 
killing  his  wife  upon  the  testimony  of  a 
Digest   1-52  I..R.A.(N.S.) 


fellow  prisoner  in  the  jail,  as  well  as  upon 
circumstantial  evidence  in  harmony  with 
such  admissions,  the  conviction  will  not  be 
set  aside  because  the  trial  court  allowed 
a  magnifying  glass  to  be  put  in  evidence 
and  taken  to  the  jury  room,  where  such 
glass  had  been  used  upon  the  trial  by  ex- 
perts to  discover  blood  stains  upon  de- 
fendant's garments.  State  v.  Cerciello  (N. 
J.  Err.  &  App.)  52:  loio,  90  Atl.  1112,  86 
N.  J,  L.  309, 

1154.  One  who  is  shown  to  be  guilty  of  as- 
saulting an  officer  in  the  discharge  of  his 
duty,  upon  his  own  evidence,  cannot  secure 
a  reversal  of  the  conviction  because  improp- 
er evidence  was  admitted  for  the  impeach- 
ment of  one  of  his  witnesses.  Dotterer  v. 
State,  30:  846,  88  N.  E.  689,  172  Ind.  357. 

1155.  The  part  of  a  conversation  with  a 
person  since  deceased  which  was  introduced 
in  evidence  upon  the  trial  of  one  accused 
of  inflicting  the  injuries  from  ^Yhieh  the 
deceased  died,  for  the  purpose  of  identifica- 
tion, which  extended  beyond  the  point  of 
identification  and  was  either  corroborative 
of  what  the  deceased  had  previously  said 
as  a  part  of  the  res  gestae,  or  which  was 
irrelevant  to  any  issue  in  the  prosecution, 
is  without  prejudice.  State  v.  Findling, 
49:  449,  144  N.  W.  142,  123  Minn.  413. 

(3)   Facts  otherwise  proved. 

(See   also   same   heading   in  Digest   L.R.A. 
1-70.) 

See  also  infra,  1181. 

1156.  The  admission  of  evidence  cannot  be 
complained  of  when  the  fact  was  otherwise 
made  to  appear  in  evidence,  and  was  not  in 
itself  material.  Peters  v.  Nolan  Coal  Co. 
9:  989,  56  S.  E.  735,  61  W.  Va.  392. 

1157.  The  admission  of  inadmissible,  cor- 
roborative evidence  which  is  merely  cumu- 
lative, is  not  reversible  error.  State  v. 
Rozeboom,  29:  37,  124  N.  W.  783,  145  Iowa, 
620. 

1158.  It  is  not  error  to  admit  evidence  cor- 
roborative of  other  evidence  which  has  been 
received  without  objection.  Wells  v.  Hays, 
42:  727,  76  S.  E.  195,  93  S.  C.  168. 

1159.  The  admission  of  incompetent  evi- 
dence is  not  reversible  error,  where  the 
finding  of  the  jury  is  amply  supported  by 
other  evidence  that  was  properly  admitted. 
Farris  v.  Southern  R.  Co.  40:  11 15,  66  S.  E. 
457,  151  N.  C.  483. 

1160.  Error  in  admitting  incompetent  tes- 
timony is  harmless  if  there  is  sufficient 
competent  evidence  in  the  record  to  sustain 
the  decree.  Champion  v.  McCarthy,  11: 
1052,  81  N.  E.  808,  228  111.  87. 

1161.  It  is  not  prejudicial  error  to  admit 
incompetent  evidence  of  a  fact  which  has 
already  been  proven  and  is  admitted. 
Haapa  v.  Metropolitan  L.  Ins.  Co.  16:  1165, 
114  N.  W.  380.  150  Mich.  467. 

1162.  The  erroneous  admission  of  hearsay 
evidence  is  not  prejudicial  when  it  concerns 


134 


APPEAL  AND  ERROR,  VII.  m,  3. 


a  fact  as  to  which  uncontradicted  and  com- 
petent evidence  has  been  adduced.  Rhein- 
heimer  v.  ^tna  L.  Ina.  Co.  15:  245,  83  N.  E. 
491,  77  Ohio  St.  360. 

1163.  Error  in  admitting  incompetent  evi- 
dence in  an  action  tried  without  a  jury  does 
not  require  reversal  if  there  is  abundant 
competent  evidence  to  justify  the  finding  of 
the  court.  Pratt  v.  Davis,  7:  609,  79  N.  E. 
562,  224  111.  300. 

1164.  A  decree  in  chancery  will  not  be  re- 
versed for  error  in  the  admission  or  exclu- 
sion of  evidence  if  tlicre  is  competent  evi- 
dence in  the  record  sufficient  to  support  the 
decree,  and  excluded  evidence  which  ought  to 
have  been  considered,  which  if  considered, 
would  not  have  changed  the  result.  Shedd  v. 
Seefeld,  13:  709,  82  N.  E.  580,  230  III.  118. 

1165.  The  erroneous  admission  of  evidence 
upon  the  question  of  damages  for  injury  to 
abutting  property  by  the  construction  of  a 
viaduct  in  a  street  is  not  reversible  error, 
if  there  is  sufficient  competent  evidence  to 
sustain  the  verdict.  Shrader  v.  Cleveland, 
C.  C.  &  St.  L.  R.  Co.  26:  226,  89  N.  E.  997, 
242  111.  227. 

1166.  The  admission  in  evidence  of  a  Bible 
containing  only  a  single  entry,  upon  the 
question  of  date  of  birth,  is  not  reversible 
error  where  there  is  sufficient  other  com- 
petent evidence  to  establish  that  fact.  Rea- 
gan V.  United  States,  44:  583,  202  Fed.  488, 
120  C.  C.  A.  627. 

1167.  A  judgment  for  plaintiff  in  an  action 
against  a  municipal  corporation  to  recover 
for  negligent  injuries  infiicted  by  its  agent 
will  not  be  refersed  because  the  only  proofs 
of  the  agency  put  in  by  plaintiff  were  in- 
admissible declarations  of  the  agent  him- 
self, where  defendant  supplies  the  missing 
proof  of  agency.  Hewitt  v.  Seattle,  32:  632, 
113  Pac.   1084,  62  Wash.   377. 

1168.  Permitting  a  person  injured  by  an- 
other's negligence  to  state  his  earning  ca- 
pacity so  indefinitely  as  to  leave  it  uncer- 
tain whether  it  represents  the  value  of  his 
services  or  partly  the  profits  of  his  busi- 
ness is  not  reversible  error  if  there  is  in- 
dependent evidence  as  to  the  value  of  his 
services  and  the  jury  are  instructed  to  al- 
low nothing  for  loss  or  profit.  Walsh  v. 
New  York  C.  &  H.  R.  R.  Co.  37:  11 37,  97 
N.  E.  408,  204  N.  Y.  58. 

1169.  Permitting  one  injured  by  another's 
negligence  to  state  what  he  would  have 
earned  in  his  profession  in  the  absence  of 
the  injury  is  not  reversible  error,  where  de- 
fendant had  secured  tli-  exclusion  of  com- 
petent evidence  on  that  question,  and  the 
estimate  made  is  supported  by  the  other 
evidence  in  the  case.  Lake  Shore  &  M.  S.  R. 
Co.  V.  Teeters,  5:425,  77  N.  E.  599,  166  Ind. 
335. 

1 170.  Admitting  an  opinion  as  to  the  speed 
at  which  a  car  was  traveling  when  it  collided 
with  a  vehicle  is  not  reversible  error  where 
the  physical  facts  shown  in  evidence  estab- 
lish that  the  speed  was  excessive,  so  as  to 
establish  defendant's  negligence.  Sluder  v. 
St.  Louis  Transit  Co.  5:  186,  88  S.  W.  648, 
189  Mo.  107. 

1171.  In  an  action  for  the  price  of  hay 
Digest  1-52  L.R.A.(N.S.) 


which  was  to  be  of  a  certain  quality  an  error 
in  the  admission  of  evidence  that  an  intend- 
ing purchaser  from  the  buyer  would  not 
take  it  is  rendered  nonprejudicial  by  his 
testifying  fully  as  a  witness  as  to  its  quali- 
ty. Eaton  v.  Blackburn,  20:  53,  96  Pac. 
870,  97  Pac.  539,  52  Or.  300. 

1172.  Errors,  if  any,  in  admitting  testi- 
mony of  the  wife  of  one  insured  against  ac- 
cidents as  to  communications  made  to  her 
by  her  husband  in  his  last  sickness,  is  not 
prejudicial  wliere  the  matter  was  fully  cov- 
ered by  other  uncontradicted  evidence,  and 
the  communication  consisted  simply  of  com- 
plaints of  suffering  from  pneumonia,  which 
would  have  been  the  same  whether  the  dis- 
ease was  brought  on  by  accident  as  alleged 
or  otherwise.  Western  Travelers'  Acci. 
Asso.  V.  Munson,  i:  1068,  103  N.  W.  688,  73 
Neb.  858. 

1173.  It  is  not  error  to  permit  a  witness 
to  state  whether  or  not  the  market  price  of 
a  certain  commodity  differs  in  two  cities, 
where  that  fact  could  be  shown  by  proving 
the  price  in  the  two  cities,  and  the  evidence 
is  elicited  merely  as  leading  up  to  more  im- 
portant matters.  Mount  Vernon  Brewing 
Co.  V.  Teschner,  16:  758,  69  Atl.  702,  108  Md. 
158.  ■ 
Criminal  cases. 

3174.  A  verdict  of  guilty  will  not  be  set 
aside  for  errors  in  the  admission  of  evi- 
dence where  the  defendant  has  voluntarily 
testified  in  his  own  behalf  and  the  facts 
testified  to  by  him,  as  well  as  sufficient  oth- 
er competent  evidence,  clearly  show  that  he 
is  guilty  of  the  crime  charged.  O'Hearn  v. 
State,  25:  542,  113  N.  W.  130,  79  Neb.  513. 

1175.  That  questions  which  assumed  as 
true  certain  facts  prejudicial  to  the  de- 
fendant were  asked  a  witness  on  a  crim- 
inal trial  cannot  be  complained  of,  where 
the  witness  had  already  given  evidence  sup- 
porting the  assumption  made.  State  v. 
Wolfley,   11:87,  89  Pac.   1046,  75  Kan.  406. 

1176.  The  admission  in  evidence  of  a 
memorandum  of  bills  furnished  a  person  for 
the  detection  of  robbers,  upon  the  trial  of 
persons  apprehended  for  that  offense,  is 
not  reversible  error  where  the  identity  of 
the  bills  found  in  possession  of  the  accused 
with  those  taken  from  the  person  robbed  is 
abundantly  proved.  Tones  v.  State,  i :  1024, 
88  S.  W.  217,  48  Tex.  Crim.  Rep.  363. 

1177.  A  conviction  of  homicide  will  not  be 
reversed  because  a  witness  is  permitted  to 
testify  to  another  offense  of  the  defendant 
prior  to  the  killing,  when  a  voluntary  state- 
ment of  the  defendant,  in  wliich  he  alludes 
to  the  same  charge,  is  read  in  evidence  by 
the  state  without  objection.  State  v.  Spey- 
er,  14:  836,  106  S.  W.  505,  207  Mo.  540. 

(4)    Witnesses  and  their  examination. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Instructions  as  to  credibility  of  witnesses, 

see  Trial,  958-964. 
See  also  supra,   539,  541,  774,   777,   1175; 

infra,  1189. 


APPEAL  AND  ERROR,  VII.  m,  3. 


135 


1178.  Error,  if  any,  in  the  impeachment  of 
a  witness,  is  not  ground  for  reversal,  where 
his  testimony  does  not  present  any  issue 
material  to  the  case.  Caples  v.  State,  26: 
1033,   104  Pac.  493,  3  Okla.  Crim.  Rep.  72. 

1 179.  A  conviction  will  not  be  reversed  be- 
cause accused  was  forced  into  trial  without 
giving  him  an  opportunity  to  procure  the  at- 
tendance of  witnesses,  where  it  appears  that 
the  witnesses  named  by  him  did  not  exist. 
Cremeans  v.  Com.  a:  721,  52  S.  E.  362,  104 
Va.  860. 

1180.  It  is  an  abuse  of  discretion,  after 
permitting  cross-examination  as  to  in- 
stances of  trouble  by  an  accused  who  is  try- 
ing to  establish  his  good  character,  to  re- 
fuse him  the  privilege  of  explaining  the 
trouble  on  redirect  examination,  and  permit 
the  state,  on  recross-examination,  to  go  into 
the  cause  of  the  trouble.  State  v.  Doris, 
16:  660,  94  Pac.  44,  51  Or.  136. 
Iieading  questions. 

1181.  A  case  should  not  be  reversed  on  ap- 
peal because  leading  questions  were  allowed 
where  the  answers  given  by  the  witness  had 
already  appeared  by  other  testimony  given. 
McClain  v.  Lewiston  Interstate  Fair  &  R. 
Asso.  25:  691,  104  Pac.  1015,  17  Idaho,  63. 
Cross-examination. 

See  also  supra,  628. 

1182.  Cross-examination  as  to  matter  not 
testified  to  in  chief  does  not  require  re- 
versal regardless  of  its  materiality.  State 
V.  Feeley,  3:  351,  92  S.  W.  663,  194  Mo.  300. 

1183.  It  is  not  prejudicial  error  to  permit 
a  witness  by  whom  the  defendant  in  a  crimi- 
nal case  is  attempting  to  prove  good  char- 
acter to  be  asked  if  witness  and  defendant 
had  not  smoked  opium  together  in  a  dis- 
reputable resort,  if  the  answer  is  no.  State 
V.  Donaldson,  20:  1^64,  99  Pac.  447,  35  Utah, 
96. 

(5)   Error   cured   by   instruction,    ver- 
dict, etc. 

(See   also   same    heading  in  Digest   L.R.A. 
1-10.) 

See  also  supra,  VII,  k,  3.  • 

1184.  The  erroneous  admission  of  evidence 
as  to  the  measure  of  damages  constitutes 
harmless  error  as  to  the  plaintiff,  where 
there  is  no  liability  whatever  found  by  the 
jury.  Puis  V.  Hornbeck,  29:  202,  103  Pac. 
665,  24  Okla.  288. 

1185.  In  an  action  against  a  liability  in- 
surance company  by  an  insured  who  set- 
tled a  p-  ior  action  against  him  for  dam- 
ages which  the  insurance  company  wrong- 
fully refused  to  defend,  the  admission  of 
the  testimony  of  the  attorney  for  the  plain- 
tiff in  the  previous  suit  that,  in  his  opinion, 
he  would  have  been  able  to  prove  the  alle- 
gations of  the  complaint  in  that  case,  is  not 
prejudicial  error,  where  the  decision  indi- 
cates that  no  weight  was  given  to  this 
testimony  in  so  far  as  it  related  to  the 
opinion  of  the  witness.  Butler  Bros.  v. 
Dieest  1-52  KR.A.(N.S.) 


American   Fidelity   Co.   44:  609,   139  N.   W. 

355,  120  Minn.  157. 

By  Tiritlidra\iring ;   striking   ont. 

1186.  The  erroneous  admission  of  evidence 
I  is   not  reversible  error   if   it   is  withdrawn 

by  the  court  from  the  consideration  of  the 
jury.  American  Sales  Book  Co.  v.  Whita- 
ker,  37:  91,  140  S.  W.  132,  100  Ark.  360. 

1187.  The  admission  of  erroneous  evidence 
which  was  promptly  stricken  from  the  rec- 
ord by  the  court  cannot  be  complained  of. 
State  v.  Dickerson,  13:  341,  82  N.  E.  969,  77 
Ohio  St.  34. 

1188.  A  conviction  will  not  be  reversed  be- 
cause of  an  irrelevant  question  put  to  a  wit- 
ness, if,  upon  objection,  it  was  withdrawn, 
the  jury  instructed  to  disregard  it,  and  the 
trial  judge  finds  that  the  asking  of  it  did 
not  render  the  trial  unfair.  State  v.  Du- 
bruiel,  25:  801,  74  Atl.  1048,  75  N.  H.  369. 

1189.  It  is  error  for  the  prosecuting  attor- 
ney to  ask  his  own  witness  if  he  had  not 
stated  specific  facts  to  him  out  of  court  dif- 
ferent from  those  testified  to  by  him,  ac- 
companying the  question  by  the  assertion 
that  he  had  done  so,  for  the  alleged  pur- 
pose of  impeachment,  and  by  so  doing  get 
before  the  jury  evidence  that  could  not  be 
secured  otherwise;  and  it  is  not  cured  by 
the  subsequent  withdrawal  of  the  evidence 
from  tlie  jury.  Andrews  v.  State,  42:  747, 
141  S.  W."  220,  64  Tex.  Crim.  Rep.  2. 

(Annotated) 

1190.  It  is  error  to  permit  a  witness  to 
state  where  a  person  killed  by  a  neighbor, 
under  the  mistaken  belief  that  he  was  a 
burglar,  was  to  spend  the  night,  without 
requiring  him  to  state  the  source  of  his 
information,  which  is  not  cured  by  striking 
out  the  testimony  after  it  is  shown  that  his 
knowledge  was  gained  by  information  from 
decedent,  where  counsel  elicited  the  testi- 
mony, knowing  it  was  incompetent.  Fos- 
ter V.  Shepherd,  45:  167,  101  N.  E.  411,  258 
111.  164. 

1191.  It  is  reversible  error  to  admit,  in  an 
action  to  hold  the  owner  of  an  automobile 
liable  for  injury  through  collision  with  a 
pedestrian,  evidence  that  he  carried  lia- 
bility insurance,  which  is  not  cured  by 
striking  the  evidence  and  directing  the  jury 
to  disregard  it.  Birch  v.  Abercrombie, 
50:  59,   133  Pac.   1020,  74  Wash.   486. 

By  instrnctions. 
See  also  supra,  1188. 

1192.  The  introduction  of  improper  evi- 
dence may  be  ground  for  reversal,  although 
the  court  instructs  the  jury  to  ignore  it, 
where  counsel  presses  it  upon  the  attention 
of  the  jury  and  they  actually  consider  it  in 
reaching  their  verdict.  Brown  Land  Co.  v. 
Lehman,  12:  88,  112  N.  W.  185,  134  Iowa, 
712. 

1193.  Error  in  admitting  evidence  of  an 
element  of  damages  not  alleged  in  the  com- 
plaint is  not  reversible  if  the  jury  are  in- 
structed to  disregard  it  and  the  verdict 
shows  that  it  did  not  enter  into  the  re- 
covery. Howard  v.  Washington  Water 
Power  Co.  52:  578,  134  Pac.  927,  75  Wash. 
255. 


136 


APPEAL  AND  ERROR,  VII.  m,  3. 


1194.  A  statement  in  tlie  charge  that  testi- 
mony of  plaintifT's  sickness  going  to  the 
amount  of  damages  in  a  libel  suit  was 
stricken  out  and  sliould  be  ignored  cures 
the  error  of  its  admission,  where  the  ver- 
dict is  not  so  great  as  to  excite  the  sus- 
picion that  the  defendant  may  have  been 
aggrieved  in  the  matter.  Lundin  v.  Post 
Pub.  Co.  52:  207,  104  N.  E.  480,  217  Mass. 
213. 

1195.  An  instruction  not  to  regard  evi- 
dence of  defendant's  wealth  in  an  action  for 
damages  for  alienation  of  affections  does  not 
cure  error  in  admitting  it,  if  from  the  size 
of  the  verdict,  it  is  evident  that  it  was  not 
obeyed.  Phillips  v.  Thomas,  42:  582,  127 
Pac,  97,  70  Wash.  533. 

1196.  Error  in  receiving  evidence  of  the  in- 
tention of  the  parties  with  respect  to  a 
written  contract  does  not  require  a  reversal, 
if  the  construction  given  by  the  court  to 
the  contract  was  in  exact  harmony  with 
the  legal  construction  of  the  instrument. 
Brown  v.  Vermont  Mut.  F.  Ins.  Co.  29:698, 
74  Atl.   1061,  83  Vt.   161. 

1197.  The  admission  in  an  action  by  a 
servant  of  a  street  railroad  company  to  hold 
the  master  liable  for  injury  caused  by  the 
negligence  of  a  fellow  servant  who  was  al- 
leged to  be  incompetent,  of  incompetent 
evidence  as  to  the  making  of  complaints  to 
an  officer  having  no  authority  to  discharge 
him,  is  reversible  error,  although  the  jury 
are  instructed  to  consider  it  merely  as  to 
a  subordinate  fact,  if  they  are  permitted  to 
consider  it  on  the  question  of  notice  to  the 
company  of  such  incompetence,  and  the  of- 
ficer alleged  to  have  received  the  notice  is 
made  a  witness  and  obliged  to  meet  the 
testimony,  which  might  destroy  his  value 
as  a  witness.  Rosenstiel  v.  Pittsburg  Rail- 
ways Co.  33:  751,  79  Atl.  556,  230  Pa.  273. 

1198.  Error  in  admitting  in  evidence  a 
written  statement  of  those  in  charge  of  a 
street  car  which  was  in  an  accident,  in  an 
action  to  hold  the  street  car  company  liable 
for  injuries  thereby,  is  not  cured  by  a 
charge  to  the  effect  that  it  is  admitted  only 
to  contradict  such  persons'  testimony  as 
witnesses  in  the  case,  where,  as  to  one  of 
the  witnesses,  it  was  not  admissible  for  that 
purpose  because  he  had  never  adopted  it  by 
signing  it,  and  it  contains  matters  preju- 
dicial to  the  objecting  party  other  than 
those  which  are  merely  contradictory 
while,  in  a  portion  of  the  charge,  the  jury 
are  authorized  to  use  it  as  substantive  evi- 
dence. Boyle  V.  Boston  Elevated  R.  Co. 
33:  552,  94  N.  E.  247,  208  Mass.  41. 

1199.  Upon  the  question  of  perjury  on  the 
part  of  one  who  swore  that  certain  per- 
sons were  properly  registered  as  voters  from 
a  certain  place,  the  admission  of  evidence 
of  a  prior  conversation  tending  to  show 
that  he  knew  that  they  could  not  properly 
register  from  that  place  is  not  prejudicial 
error,  although  it  contains  statements  tend- 
ing to  show  the  commission  of  another 
crime,  if  the  jury  is  cautioned  to  disregard 
that  portion  of  it.  People  v.  Cahill,  20: 
1084,  86  N.  E.  39,  193  N.  Y.  232. 

Dieest  1-52  I^R.A.(N.S.) 


b.  Erroneous  exclusion. 

(See   also   same   heading   in  Digest   L.R.A, 
1-10.) 

Presumption  as  to  exclusion  of,  on  appeal, 

see  supra,  449. 
Curing  error  as  to,  below,  see  supra,  842- 

844. 
See  also  supra,  167,  1164. 

1200.  The  exclusion  of  immaterial  evi- 
dence is  not  erroneous.  Western  U.  Teleg. 
Co.  V.  Milton,  11:  560,  43  So.  495,  53  Fla.  484. 

1201.  Tlie  erroneous  exclusion  of  evidence 
cannot  be  successfully  complained  of  when 
not  prejudicial.  State  use  of  Hart-Parr  Co. 
V.  Robb-Lawrence  Co.  16:  227,  115  N.  W. 
846,  17  N.  D.  257. 

1202.  Tlie  erroneous  exclusion  of  evidence 
is  not  available  error,  where  no  sufficient 
offer  to  prove  was  made.  Grimestad  v.  Lo- 
gren,  17:  990,  117  N.  W.  515,  105  Minn.  286. 

1203.  Error  in  the  rejection  of  evidence 
does  not  require  reversal  if,  upon  the  record, 
the  result  would  not  have  been  changed  had 
the  evidence  been  admitted.  Kuhl  v.  Cham- 
berlain, 21:766,  118  N.  W.  776,  140  Iowa, 
546. 

1204.  The  exclusion  of  a  question  is  not 
error,  in  the  absence  of  anything  to  show 
what  the  answer  would  be.  Beauregard  v. 
Benjamin  F.  Smith  Co.  45:  200,  100  N.  E. 
627,  213  Mass.  259. 

1205.  Error  cannot  be  predicated  upon  the 
refusal  of  the  court  to  permit  witnesses  to 
answer  questions  propounded  to  them,  where 
no  offer  of  proof  was  made,  and  it  does  not 
appear  that  the  appellant  was  in  any  way 
prejudiced  by  the  rulings  complained  of. 
Madson  v.  Rutten,  13:  554i  113  N.  W.  872, 
16  N.  D.   281. 

1206.  The  exclusion  of  testimony  which  is 
material  on  the  theory  on  which  the  case 
is  finally  submitted  to  the  jury  is  error. 
Brown  Land  Co.  v.  Lehman,  12:  88,  112  N. 
W.  185,  134  Iowa,  712. 

1207.  A  recital  by  a  trial  judge  who  haa 
erroneously  rejected  evidence,  that  the  de- 
cree should  be  the  same  whether  th<i  evi- 
dence was  admitted  or  rejected,  will  not 
prevent  a  reversal.  Blount  v.  Blount,  21: 
755,  48  So.  581,  158  Ala.  242. 

1208.  Rejection  of  competent  evidence  ia 
not  reversible  error  if  with  it  in  the  record 
the  evidence  would  not  be  sufficient  to  estab- 
lish the  issue  which  it  was  offered  to  sup- 
port. Shaw  v.  Lobe,  29:  333,  108  Pac.  450, 
58  Wash.  219. 

1209.  It  is  not  prejudicial  error  to  exclude 
from  evidence  a  plaintiff's  conclusior  as  to 
the  fact  to  be  determined  by  the  jury,  where 
the  facts  are  fully  in  evidence.  Rudd  v. 
Byrnes,  26:  134,  105  Pac.  957,  156  Cal.  636. 

1210.  A  party  is  not  prejudiced  by  the 
wrongful  refusal  of  the  trial  court  to  per- 
mit a  witness  to  testify  as  to  whether  he 
wishes  his  testimony  previously  given  in 
the  same  cause  to  stand.  McClain  v.  Lew- 
iston  Interstate  Fair  &  R.  Asso.  25:  691, 
104  Pac.  1015,  17  Idaho,  63. 


APPEAL  AND  ERROR,  VII.  m,  3. 


137 


1211.  It  is  not  error  to  refuse  to  allow 
a  repetition  of  evidence  which  had  already 
been  once  admitted  and  afterwards  proper- 
ly stricken.  United  Hardware-Furniture 
Co.  V.  Blue,  35:  1038,  52  So.  364,  59  Fla. 
419. 

1212.  Permitting  the  introduction  in  evi- 
dence of  the  answer  to  one  of  several  inter- 
rogatories, without  admitting  the  answers 
to  other  interrogatories  admissible  under  a 
statute  providing  that  the  written  answers 
to  written  interrogatories  submitted  before 
trial  upon  any  matter  material  to  the  issue 
shall  be  evidence  in  the  action  if  offered  by 
the  party  proposing  the  interrogatories, 
does  not  constitute  error  where  there  was 
no  showing  or  offer  to  show,  either  on  the 
trial  or  on  appeal,  that  the  remaining  an- 
swers were  material  to  the  issue,  or  that 
they  tended  to  explain,  qualify,  or  limit  the 
answer  admitted.  Cetofonte  v.  Camden 
Coke  Co.  (N.  J.  Err.  &  App.)  27:  1058,  75 
Atl.  913,  78  N.  J.  L.  662. 

1213.  Rejection  of  a  particular  offer  of  evi- 
dence is  not  reversible  error  if  the  party 
has  been  accorded  every  reasonable  oppor- 
tunity for  showing  facts  which  would  be 
likely  to  aid  the  jury  to  reach  a  correct 
conclusion  upon  the  issue  involved.  Walters 
V.  Spokane  International  R.  Co.  42:  917,  108 
Pac.  593,  58  Wash.  293. 

1214.  It  is  not  error  to  exclude  evidence  of 
remarks  by  a  witness  to  plaintiff,  to  which 
plaintiff  did  not  reply,  if  there  is  nothing 
to  indicate  that  an  unfavorable  inference 
should  be  drawn  against  plaintiff  because  of 
his  silence.  Miller  v.  Pearce,  43:  332,  85 
Atl.  620,  86  Vt.  322. 

1215.  Where  a  motion  was  made  during 
the  trial  of  a  civil  action  before  a  jury,  to 
strike  the  testimony  of  a  certain  witness 
given  on  a  specified  day,  and  the  testimony 
given  on  that  day  by  such  witness  was  all 
that  he  gave  in  the  case,  it  cannot  be  said 
on  appeal  that  the  motion  to  strike  was 
directed  to  a  part  only  of  such  evidence, 
and  that  a  valid  portion  thereof  was  not 
understood  as  having  been  stricken,  where 
there  is  nothing  in  the  record  showing  that 
the  motion  was  limited,  so  as  to  render  the 
granting  of  the  motion  harmless  error,  as 
the  jury  must  be  considered  as  having 
understood  that  it  included  all  the  testi- 
mony of  such  witness.  Chicago,  M.  &  St. 
P.  R.  Co.  V.  Westby,  47:97,  178  Fed.  619, 
102  C.  C.  A.  65. 

1216.  A  defendant  is  not  prejudiced  by  the 
refusal  of  the  trial  court  to  order  into  court 
a  deposition  which  had  been  taken  by  the 
plaintiff  upon  notice,  as  provided  by  stat- 
ute, but  which  had  not  been  filed  one  day 
before  trial,  as  required  by  statute,  in  or- 
der to  make  it  admissible,  at  his  applica- 
tion, made  during  the  progress  of  the  trial, 
where  he  could,  by  the  exercise  of  diligence, 
have  discovered  the  failure  to  file  in  season 
to  have  obtained  the  desired  evidence  in 
the  manner  prescribed  by  statute.  Chicago, 
R.  I.  &  P.  R.  Co.  V.  Martin,  27:  164,  105 
Pac.  451,  81  Kan.  344. 

1217.  Refusal  to  permit  a  witness  to  tes- 
tify because  he  remained  in  the  court  room 
Disest  1-52  I..R.A.(N.S.) 


during  the  opening  statements  by  counsel 
after  the  witnesses  had  been  put  under  the 
rule  and  excluded  cannot  be  held  to  be  error 
on  appeal,  in  the  absence  of  anything  to 
show  to  what  he  was  expected  to  testify. 
Meyers  v.  Duddenhauser,  5:  727,  90  S.  W. 
1049,  122  Ky.  866. 

1218.  The  exclusion  from  evidence  of  the 
opinion  of  a  witness  as  to  a  fact  in  contro- 
versy in  a  case  is  immaterial  if  the  jury 
finds  in  accordance  with  the  contention  of 
the  party  offering  it.  Indianapolis  Traction 
&  T.  Co.  V.  Kidd,  7:  143,  79  N.  E.  347,  167 
Ind.  402. 

1219.  Error  in  excluding  evidence  of  a  wit- 
ness tending  to  show  interest  does  not  call 
for  reversal  if  the  evidence  would  not  have 
added  anything  to  what  was  already  before 
the  jury!  State  v.  Fuller,  8:  762,  85  Pac. 
369,  34  Mont.  12. 

1220.  The  enforcement  in  a  damage  suit  of 
a  rule  limiting  the  number  of  witnesses  on 
the  question  of  damages  to  four  on  each 
side,  which  was  promulgated  while  plain- 
tiff's third  witness  on  that  question  was  un- 
der examination,  is  reversible  error.  St. 
Louis,  M.  &  S.  E.  R.  Co.  v.  Aubuchon,  9:  426, 
97  S.  W.  867,  199  Mo.  352. 

1221.  Rejection  of  evidence  as  to  the  ac- 
tual transaction  which  resulted  in  the  re- 
lease of  a  lien  and  execution  of  a  bond  is 
not  prejudicial  error  in  an  action  on  the 
bond,  where  it  could  not  have  affected  the 
legal  effect  of  the  transaction.  Barnes  v. 
Crockett,  36:  464,  68  S.  E.  983,  111  Va.  240. 

1222.  Rejection  of  testimony,  of  an  expert 
as  to  what  is  shown  by  certain  account 
books  is  not  reversible  error  if  the  books 
themselves  were  before  the  court  and  failed 
to  show  facts  sufficient  to  establish  the 
issue  which  they  are  offered  to  establish. 
Shaw  V.  Lobe,  29:  333,  108  Pac.  450,  58 
Wash.   219. 

1223.  It  is  not  reversible  error  to  refuse 
to  permit  a  witness  who  has  testified  as  to 
the  condition  of  weather  on  a  certain  day,  to 
state  whether  or  not  he  would  call  it  a  fair 
day,  since  the  jury  are  able,  from  his  de- 
scription, to  determine  that  fact  for  them- 
selves. Pratt  V.  North  German  Lloyd  S.  S. 
Co.  33:  532,  184  Fed.  303,  106  C.  C.  A.  445. 

1224.  The  decision  of  the  trial  judge  in  ex- 
cluding expert  evidence  of  the  value  of  land 
as  a  source  of  water  supply,  in  a  proceed- 
ing to  secure  compensation  for  it  after  it 
has  been  taken  by  right  of  eminent  domain, 
will  not  be  reversed  unless  plainly  wrong. 
Sargent  v.  Merrimac,  11:  996,  81  N.  E.  970, 
196  Mass.   171. 

1225.  The  exclusion  of  a  question  as  to 
the  position  of  a  person  in  another's  house- 
hold is  not  prejudicial  error  to  the  for- 
mer in  a  suit  upon  a  note  given  by  the  lat- 
ter, where  the  witness  had  stated  what 
claimant  did  there,  and  witness  had  not 
been  there  for  twenty-five  years  and  tlien 
very  seldom.  Harper  v.  Davis,  35:  1026, 
80  Atl.  1012,  115  Md.  349. 

1226.  It  is  not  reversible  error  to  exclude 
evidence  of  declarations  of  a  deceased  per- 
son  that,  when   he  came  into  the  country, 


138 


APPEAL  AND  ERROR,  VII.  m,  3. 


he  had  very  little  property,  upon  the  ques- 
tion of  whether  or  not  money  left  by  him 
was  community,  where  the  period  referred 
to  was  sixteen  years  before  his  marriage. 
Re  Pepper,  31:  1092,  112  Pac.  62,  158  Cal. 
619. 

1227.  It  is  not  reversible  error  to  refuse  to 
permit  a  question  to  be  put  to  a  witness 
who  was  a  bystander  at  a  time  when  a 
horse  was  injured,  as  to  a  remark  which 
he  made  to  the  driver,  if  it  is  not  made  to 
appear  that  the  expected  answer  would  be 
relevant  to  any  issue  in  the  case.  Weller 
V.  Camp.  28:  1 106,  52  So.  929,  169  Ala.  275. 

1288.  In  an  action  to  recover  damages  for 
the  destruction  of  a  well,  the  exclusion  of 
evidence  that  a  supply  of  water  might 
have  been  procured  from  other  sources 
which  did  not  belong  to  plaintiffs  is  not 
prejudicial  error  if  plaintiffs'  recovery  is 
for  only  $250.  Patrick  v.  Smith,  48:  740, 
134  Pac.  1076,  75  Wash.  407. 

1229.  One  accused  of  assault  with  intent 
to  murder,  who  has  admitted  that  he  had 
some  feeling  against  his  victim,  is  not  pre- 
judiced by  not  being  permitted  to  testify 
as  to  whether  or  not  he  suspected  criminal 
intimacy  between  his  own  wife  and  the 
victim,  since  this  testimony  would  not  af- 
fect the  intent  with  which  the  crime  was 
committed.  State  v.  McGuire,  38:  1045, 
80  Atl.  761,  84  Conn.  470. 

1230.  The  exclusion,  in  a  bastardy  proceed- 
ing, of  evidence  that  complainant  denied,  up 
to  the  date  of  her  confinement,  that  she 
was  pregnant,  is  not  error.  Johnson  v. 
Walker,  i :  4)0,  39  So.  49,  86  Miss.  757. 

1231.  Where  the  only  fact  offered  to  be 
proved  by  a  physician,  which  was  excluded 
by  the  court,  was  that  he  was  present  at 
the  time  plaintiff's  leg  was  amputated;  and 
no  offer  was  made  to  prove  or  disprove  by 
the  witness  any  fact  in  issue  in  the  case, — 
there  was  no  error  in  the  exclusion  of  the 
testimony.  Smart  v.  Kansas  City,  14:  565, 
105  S.  W.  709,  208  Mo.  162. 

1232.  The  exclusion  of  evidence  of  an  as- 
sistant surgeon  at  an  operation,  tending  to 
corroborate  the  evidence  of  the  one  who  per- 
formed the  operation,  as  to  conditions  found 
which  bear  upon  the  liability  of  another 
physician  for  malpractice,  cannot,  where  the 
verdict  was  against  defendant,  be  held  non- 
prejudicial, if  it  was  properly  admissible, 
on  the  theory  that  it  was  merely  cumula- 
tive. Capron  v.  Douglass,  20:  1003,  85  N. 
E.  827,  193  N.  Y.  11. 

1233.  Exclusion  of  evidence  that  after  an 
assault,  and  the  starting  away  of  the  as- 
sailant, the  victim  picked  up  a  rack  con- 
taining a  small  roll  of  wrapping  paper,  in 
an  action  to  recover  damages  for  the  as- 
sault, is  not  reversible  error,  although  the 
act  might  be  regarded  as  res  gestae.  Mat- 
suda  V.  Hammond,  51:  920,  137  Pac.  328,  77 
Wash.  120. 

1234.  The  exclusion  in  a  will  contest  of 
testimony  as  to  the  contents  of  a  former 
will  is  not  rendered  harmless  by  the  fact 
that  the  testimony  was  not  made  to  appear 
relevant  or  material,  where  nothing  could 
be  ascertained  as  to  its  character  because  of 
Digest  1-52  I<.R.A.(N.S.) 


the   rulings   of   the   court.     Re   Young,    17: 
108,  94  Pac.  731,  33  Utah,  382. 

1235.  Refusal  to  permit  municipal  author- 
ities to  state  whether  or  not  they  would 
have  permitted  machinery  to  be  placed  by 
a  contractor  in  the  electric  plant  which  he 
was  constructing  for  the  municipality,  and 
payment  to  be  made  for  it,  if  they  had  had 
knowledge  that  it  was  purchased  by  him 
on  condition,  in  an  action  by  tlie  manu- 
facturer for  its  conversion  by  the  city,  is 
not  reversible  error.  Allis-Chalmers  Co.  v. 
Atlantic,  52:  561,  144  N.  W.  346,  164  Iowa, 
8. 

1236.  Exclusion  of  evidence  of  nervous 
shock  on  the  part  of  plaintiff  in  an  action 
of  trespass  quare  clausum  is  not  error, 
where  she  does  not  show  a  right  to  main- 
tain the  action.  Munsey  v.  Hanly,  13:  209, 
67  Atl.  217,  102  Me.  423. 

1237.  Refusal  to  permit  one  accused  of 
slander  to  testify  as  to  absence  of  intent 
to  injure  the  person  slandered  is  not  preju- 
dicial error  where  the  testimony  given  is 
utterly  irreconcilable  with  any  theory  of 
the  presence  of  such  intent.  Fleet  v. 
Tichenor,  34:  323,  104  Pac.  458,  156  Cal. 
343. 

1238.  In  an  action  for  defamation  it  is 
not  prejudicial  error  to  exclude  evidence 
showing  the  defendant's  good  faith  and  the 
absence  of  malice,  where  the  recovery  is 
limited  by  the  charge  of  the  court  to  com- 
pensatory damages.  Dodge  v.  Oilman,  47: 
1098,  142  N.  W.  147,  122  Minn.   177. 

1239.  Exclusion  of  evidence  that  an  opera- 
tor to  whom  a  telegram  was  delivered  for 
transmission  did  all  he  could  to  get  into 
communication  with  an  intermediate  termi- 
nal without  success  is  not  prejudicial  error 
against  the  telegraph  company,  because  it 
is  answerable  for  the  negligence  of  those 
in  charge  of  the  latter  office  the  same  as  it 
would  have  been  for  those  to  whom  the  mes- 
sage was  tendered.  Maley  v.  Western  U. 
Teleg.  Co.  49:  327,  130  N.  W.  1086,  151 
Iowa,  228. 

Personal  injnTy  cases. 

1240.  It  is  not  error,  in  an  action  against 
a  city  for  injury  sustained  by  one  falling 
on  a  slippery  walk,  to  exclude  evidence  of 
an  ordinance  which  requires  removal  of 
snow  from  walks  within  twelve  hours  after 
it  has  ceased  to  fall,  where  the  failure  to 
remove  the  snow  within  a  reasonable  time 
is  not  shown  to  have  been  a  contributing 
cause  to  the  injury.  Beirness  v.  Missouri 
Valley,  51:218,  144  N.  W.  628,  162  Iowa, 
720. 

1241.  It  is  harmless  error  in  an  action  for 
damages  for  negligently  permitting  a  dog 
on  a  race  track,  to  the  injury  of  a  partici- 
pant in  a  race,  to  exclude  evidence  as  to 
whether  or  not  plaintiff  had  not  said  while 
in  the  hospital  after  the  accident  that  he 
did  not  blame  anyone  for  the  dog  being  on 
the  track  or  the  accident,  as  such  statement, 
if  made,  would  not  prevent  recovery  if  the 
facts  showed  a  legal  liability  on  the  part  of 
the  defendants  for  the  injuries  sustained. 
McClain  v.  Lewiston  Interstate  Fair  &  R. 
Asso.   25:  691,   104  Pac.   1015,  17   Idaho,  63. 


APPEAL  AND  ERROR,  VII.  m,  3. 


139 


1242.  Striking  out  the  testimony  of  the 
conductor  of  a  train  upon  an  issue  made 
by  the  pleadings,  tried  by  the  evidence,  and 
submitted  to  tlie  jury,  as  to  whether  or  not 
such  train  was  executing  a  switching  move- 
ment at  the  time  the  accident  complained 
of  occurred,  is  reversible  error.  Chicago, 
M.  &  St.  P.  R.  Co.  V.  VVestby,  47:  97,  178 
Fed.  619,  102  C.  C.  A.  65. 

1243.  It  is  not  reversible  error  to  exclude 
evidence  that  it  is  dangerous  for  a  run- 
ning train  to  strike  a  hand  car,  in  an 
action  to  hold  a  railroad  company  liable  for 
injury  to  an  engineer  through  the  derail- 
ment of  his  train  by  a  broken  rail,  the  only 
notice  of  which  was  the  fact  that  a  hand 
car  stood  on  the  track  at  that  place.  Chi- 
cago G.  W.  R.  Co.  v.  McCormick,  47:  18, 
200  Fed.  375,  118  C.  C.  A.  527. 

1244.  The  exclusion  of  a  question  as  to 
who  was  doing  the  work,  for  an  accident  to 
an  employee  in  which  a  certain  person  was 
alleged  to  be  responsible,  is  not  error  if  wit- 
ness is  permitted  to  state  all  the  facts  and 
circumstances  bearing  upon  the  matter. 
Beauregard  v.  Benjamin  F.  Smith  Co.  45: 
200,  100  N.  E.  627,  213  Mass.  259. 

1245.  Refusal  to  admit  evidence,  in  an 
action  to  recover  for  the  conscious  suffering 
prior  to  death  of  one  injured  by  another's 
negligence,  that  members  of  the  family  had 
died  of  tuberculosis,  for  the  purpose  of  rais- 
ing the  presumption  that  the  injured  person 
died  of  that  disease,  is  not  reversible  error. 
Dickinson  v.  Boston,  i:  664,  75  N.  E.  68,  188 
Mass.  595. 

Criminal   cases. 

See   also   supra,    1229;    infra,    1259,    1266- 
1268. 

1246.  Rejection  lof  letters  from  deceased  to 
accused  is  not  reversible  error  when  offered 
to  show  their  feelings  toward  each  other, 
upon  trial  of  a  man  for  murder  of  his  wife, 
where  the  jury  convicts  him  of  manslaugh- 
ter involving  sudden  passion.  Montgomery 
V.  State,  18:  339,  116  N.  W.  876,  136  Wis. 
119. 

Establislied  by  other  proof. 

1247.  Refusing  to  permit  a  witness  to  an- 
swer a  question  is  not  error  where  the  fact 
has  been  testified  to  by  other  witnesses  and 
the  additional  testimony  would  not  have 
aflfected  the  result.  Teakle  v.  San  Pedro, 
L.  A.  &  S.  L.  R.  Co.  10:  486,  90  Pac.  402,  32 
Utah,  276. 

1248.  Exclusion  of  evidence  tending  to 
prove  a  fact  which  is  admitted  or  estab- 
lished by  other  evidence  is  not  prejudicial 
error.  Nashville  Lumber  Co.  v.  Busbee, 
38:  754,  139  S.  W.  301,   100  Ark.  76. 

1249.  Sustaining  an  improper  objection 
to  a  question  asked  a  witness  constitutes 
harmless  error  where  the  witness  had  al- 
ready given  an  answer  to  the  question. 
United  Hardware-Furniture  Co.  v.  Blue, 
35:  1038,  52   So.  364,  59  Fla.  419.. 

1250.  Refusing  to  allow  a  witness  to  an- 
swer a  question  which  he  has  already  an- 
swered is  not  prejudicial  error.  Estey  Or- 
gan Co.  v.  Lehman,  11:  254,  111  N.  W.  1097, 
132  Wis.  144. 

1251.  Refusal  to  permit  a  witness  to 
Digest   1-52  L.R.A.(N.S.) 


answer  a  question  is  not  reversible  error  if 
an  answer  as  full  as  could  have  been  ob- 
tained in  response  to  the  question  excluded 
was  obtained  from  him  in  response  to  an- 
other question.  International  Harvester  Co. 
v.  Iowa  Hardware  Co.  29:  272,  122  N.  W. 
951,  146  Iowa,  172. 

1252.  Exclusion  of  testimony  which  is  but 
a  repetition  of  what  has  previously  been  ad- 
mitted without  objection  is  not  reversible 
error.  Johnson  v.  Walker,  1:470,  39  So. 
49,  86  Miss.  757. 

1253.  The  exclusion  of  merely  cumulative 
testimony  from  the  same  witness  is  at  most 
merely  harmless  error.  Smith  v.  Cashie  & 
C.  R.  &  Lumber  Co.  5:  439,  54  S.  E.  788, 
142  N.  C.  26. 

1254.  The  exclusion  of  evidence,  even  if 
erroneous,  does  not  require  a  reversal,  where 
the  facts  which  the  excluded  evidence  was 
offered  to  show  were  proved  by  other  evi- 
dence, and  the  final  judgment  could  not 
have  been  altered  by  its  admission.  Mac- 
kenzie v.  Minis,  23:  1003,  63  S.  E.  900,  132 
Ga.  323. 

1255.  The  exclusion  from  evidence  of  let- 
ters is  not  prejudicial  error  where  they  throw 
no  light  on  the  controversy  not  disclosed  by 
the  parol  evidence.  Montgomery  v.  State, 
18:  339,  116  N.  W.  876,  136  Wis.  119. 

1256.  The  erroneous  exclusion,  in  an  action 
on  a  fraternal  benefit  certificate,  of  the 
proofs  of  death  furnished  by  the  beneficiary, 
when  offered  in  evidence  by  the  insurer,  is 
not  prejudicial,  where  the  physician  who 
made  out  such  proofs,  when  on  the  witness 
stand,  gave  substantially  the  same  answers 
as  those  contained  in  the  proofs  of  loss. 
Rasicot  V.  Royal  Neighbors  of  America, 
29:  433,  108  Pac.  1048,  18  Idaho,  85. 

1257.  Exclusion  from  evidence  of  letters 
describing  the  repairs  to  be  made  on  leased 
property,  in  an  action  for  rent  in  which 
damages  for  breach  of  covenant  to  repair 
are  sought  to  be  set  off,  is  not  prejudicial 
error  where  the  lease  itself  contains  a  cove- 
nant to  keep  the  building  in  habitable  re- 
pair. Young  V.  Berman,  34:  977,  131  S.  W. 
62,  96  Ark.  78, 

1258.  There  is  no  reversible  error  in  refus- 
ing to  admit  in  evidence  an  application  for 
carriage  of  freight  where  it  is  not  material- 
ly different  from  the  carriage  agreement 
which  is  admitted.  Wabash  R.  Co.  v.  Thom- 
as, 7:  1041,  78  N.  E.  777,  222  111.  337. 

1259.  The  exclusion  of  testimony  that  one 
accused  of  homicide  was  not  actuated  by 
anything  witness  said  or  did  is  not  error, 
where  he  j  as  been  permitted  to  detail  all 
the  facts;  sir.ce  it  is  a  mere  conclusion 
which  it  is  the  province  of  the  ju.y  to  reach. 
State  v.  Forsha,  4:  576,  88  S.  W.  746,  190 
Mo.  296. 

1260.  Refusal  to  admit  in  evidence  testi- 
mony of  a  statement  by  a  man  that  a 
woman  to  whom  he  was  talking  on  a  par- 
ticular occasion  was  his  wife,  in  an  action 
to  hold  his  father  liable  in  damages  for 
separating  them,  is  immaterial  if  the  wit- 
ness identifies  the  woman  as  the  son's  wife. 
Ickes  V.  Ickes,  44:  11 18,  85  Atl.  885,  237  Pa. 
582. 


KO 


APPEAL  AND  ERROR,  VII.  m,  4. 


1261.  It  is  not  reversible  error  to  exclude 
expert  testimony  presenting  a  possible,  but 
highly  improbable,  theory,  not  based  on 
any  particular  facts  in  support  thereof,  es- 
pecially if  such  testimony  conflicts  with 
other  direct  testimony  negativing  such 
theory.  Wigal  v.  Parkersburg,  52:  465,  81 
S.  E.  554,  —  W.  Va.  — . 
Subsequent  admission. 

1262.  Error  in  excluding  an  answer  to  a 
question  is  not  prejudicial  where  the  wit- 
ness subsequently  goes  into  the  entire  mat- 
ter at  length.  Blossi  v.  Chicago  &  N.  VV.  R. 
Co.  26:  255,  123  N.  W.  360,  144  Iowa,  697. 

1263.  A  judgment  cannot  be  reversed  be- 
cause of  refusal  to  permit  a  witness  to 
answer  a  question,  if  he  afterwards  testi- 
fies fully  with  respect  to  the  matter.  State 
V.  Dyer,  29:  459,  124  N.  W.  629,  147  Iowa, 
217. 

Cross-examination. 

1264.  Cross-examination  on  matters  either 
directly  in  issue  or  directly  relevant  to  the 
issue  is  a  matter  of  right,  and  its  exclusion 
is  error.  Prout  v.  Bernards  Land  &  S.  Co. 
(N.  J.  Err.  &  App.)  25:683,  73  Atl.  486, 
77  N.  J.  L.  719. 

1265.  Unduly  limiting  the  cross-examina- 
tion of  a  witness  is  not  reversible  error  if 
no  prejudice  results  therefrom.  Kennedy 
V.  Modern  Woodmen  of  America,  28:  181, 
90  N.   E.    1084,   243   111.  560. 

1266.  On  cross-examination  a  hypothetical 
question  omitting  material  facts  which  the 
evidence  tended  to  prove,  and  which  were 
included  in  a  question  asked  upon  direct 
examination,  is  permissible,  within  reason- 
able limits,  to  test  the  intelligence,  capacity, 
discernment,  and  candor  of  the  witness;  but 
where  the  cross-examination  proceeded  at 
great  length,  and  the  witness  testified  upon 
the  matters  embraced  in  the  question  in  de- 
tail, and  admitted  that  he  did  not  know 
positively  whether  the  death  might  have 
occurred  from  poison  without  the  symptoms 
stated,  a  ruling  excluding  such  hypothetical 
question  does  not  affect  the  substantial 
rights  of  the  appellant.  State  v.  Buck,  42: 
854,  127  Pac.  631,  88  Kan.  114. 

1267.  It  is  not  reversible  error  to  refuse 
to  permit  one  accused  of  statutory  rape  to 
cross-examine  the  prosecuting  witness  as  to 
promiscuous  intercourse  with  other  men  for 
the  purpose  of  aflfecting  her  credibility. 
State  V.  Stimpson,  i:  1153,  62  Atl.  14,  78 
Vt.  124. 

1268.  It  is  not  error  to  refuse  to  permit  a 
witness  who  has  identified  accused  as  one 
who  committed  a  homicide  to  be  asked  on 
cross-examination  if  he  was  not  present  at 
the  inquest,  and  if  it  was  not  true  tliat  no 
testimony  about  who  did  the  shooting  could 
be  secured  there,  where  it  does  not  appear 
that  the  question  called  for  more  than 
cumulative  evidence  that  he  had  made  no 
disclosure  at  the  inquest  as  to  who  did  the 
deed.  Brown  v.  State.,  37:  345,  55  So.  961, 
99  Miss.  719. 

Digest  1-52  Ii.R.A.(N.S.) 


c.  Refusal  to  strike  out. 

(See   also    same    heading   in   Digest   L.R.A, 
1-10.) 

As  to  striking  out  evidence,  generally,  see 
Trial,  48-55. 

1269.  It  is  not  prejudicial  error  to  refuse 
to  "strike    out   unresponsive   evidence,    if    it 
subsequently  comes  in,  in  due  course,  from 
otiier   witnesses.      Atvvood   v.    Atwood,   37: 
591,  79  Atl.  59,  84  Conn.  169. 

1270.  Refusal  to  strike  out  a  part  of  the 
evidence  of  a  certain  witness  as  not  the 
best  evidence  is  harmless  error  where,  had 
it  been  stricken  out,  otiier  evidence  suffi- 
cient to  justify  the  judgment  would  have 
remained.  McGregor  v.  Harm,  30:  649,  125 
N.  W.   885,   19  N.   D.  599. 

d.  Yainance. 

(See   also   same   heading  in  Digest   L.R^, 
1-70.) 

1271.  Where  the  facts  in  issue  are  known 
to  the  defendant,  so  that  he  is  in  no  wise 
misled  by  a  variance  between  the  allegations 
of  the  complaint  and  the  proof,  the  variance 
is  immaterial.  Travelers'  Indemnity  Com- 
pany V.  Fawkes,  45:331,  139  N.  W.  703,  120 
Minn.  353. 

e.  In  cases  tried  without  jury. 

(See   also   same   heading   in   Digest   L.R.A. 
1-70.) 

1272.  The  erroneous  admission  of  evi- 
dence is  not  reversible  error  in  a  case 
tried  by  the  court  without  a  jury.  Spring- 
field Shingle  Co.  v.  Edgecomb  Mill  Co.  35: 
258,  101  Pac.  233,  52  Wash.  620. 

1273.  A  cause  heard  by  the  court  without 
a  jury  cannot  be  reversed  because  books  and 
reports  on  scientific  subjects  were  admitted 
in  evidence,  the  statements  in  which  could 
not  be  subjected  to  the  sanctity  of  an  oath. 
Adams  v.  Milwaukee,  43:  1066,  129  N.  W. 
518,  144  Wis.  371. 

1274.  A  conviction  in  a  case  tried  without 
a  jury  will  not  be  reversed  on  appeal  for 
admission  of  improper  evidence,  unless  the 
court  can  see  that  the  accused  was  preju- 
diced by  the  error.  Topolewski  v.  State, 
7:  756,  109  N.  W.  1037,  130  Wis.  244. 

4.  As  to  instructions. 

a.  Instructions  given, 

(1)    Generally;  miscellaneous  matters. 

(See   also   same   heading   in   Digest   L.R.A. 
1-70.) 

Presumption  as  to  harmlessness  of  instruc- 
tion, see  supra,  468. 
Necessity  of  instruction,  see  supra,  353. 


APPEAL  AND  ERROR,  VII.  m,  4. 


141 


Errors   as   to,   waived   or   cured   below,   see 

supra,  VII.  k,  4. 
Error   in,   authorizing   new  trial,   see   New 

Trial,  20,  21. 
As  to  instructions  generally,  see  Trial,  III. 
As  to  correctness  of  instructions  generally, 

see  Trial,  III.  e. 
See  also  supra,  1030,  1139. 

1275.  Error  in  giving  and  refusing  instruc- 
tions is  not  prejudicial  where,  under  the 
case  made  and  ofl'ered  to  be  made,  there 
could  properly  have  been  no  other  verdict 
than  the  one  returned.  Barnes  v.  Crockett, 
36:  464,  08  S.  E.  983,  111  Va.  240. 

1276.  Alleged  errors  in  giving  and  refus- 
ing instructions  will  not  be  examined  on 
appeal  where  no  verdict  other  than  the  one 
rendered  could  have  been  sustained  on 
the  facts  established  by  uncontradicted  evi- 
dence. Miller  v.  Raymond,  31:  783,  123 
N.  W.  1019,  85  Neb.  543. 

1277.  Instructions  given  or  refused  will 
not  be  considered  on  appeal  when  it  appears 
plainly  from  the  evidence  that  no  verdict 
other  than  the  one  rendered  could  have  been 
rendered.  Hanger  v.  Com.  14:  683,  60  S.  E. 
67,  107  Va.  872. 

1278.  Where  it  appears  from  the  evidence 
that  a  verdict  is  so  clearly  right  that,  had 
it  been  diflferent,  the  courts  should  have  set 
it  aside,  such  verdict  will  not  be  disturbed 
merely  for  the  reason  that  there  is  error 
found  in  the  instructions.  Horton  v.  Early, 
47:  314,   134  Pac.  436,  39  Okla.  99. 

1279.  The  supreme  court  will  disregard 
any  error  or  defect  in  instructions  given,  or 
error  in  the  failure  or  refusal  to  give  in- 
structions requested,  where  the  action  of  the 
trial   court   did   not   affect   the   substantial 

of   the   litigants.      Maxson   v.   J.    I. 


Case    Threshing   Mach.   Co.    16:  963,    116   N. 
W.  281,  81  Neb.  546. 

1280.  A  judgment  will  not  be  reversed  be- 
cause of  undue  emphasis  given  to  particular 
matters  by  repetition  of  instructions,  if 
prejudice  is  not  shown.  Furlow  v.  United 
Oil  Mills,  45:  372,  149  S.  W.  69,  104  Ark. 
489. 

1281.  A  charge,  although  erroneous,  is  not 
ground  for  reversal  when  it  does  not  preju- 
dice the  plaintiff  in  error.  Rogers  v. 
Blouenstein,  3:  213,  52  S.  E.  617,  124  Ga.  501. 

1282.  Reversible  error  cannot  be  predi- 
cated upon  isolated  parts  of  the  instruc- 
tions. Howard  v.  Washington  Water  Pow- 
er Co.  52:  578,  134  Pac.  927,  75  Wash.  255. 

1283.  An  inaccurate  statement  in  a  charge 
is  not  a  cause  for  reversal  if,  taking  the 
charge  as  a  whole,  the  jury  were  not  misled 
by  it.  Berry  v.  Donovan,  5:  899,  74  N.  E. 
603,   ISS  Mass.  353. 

1284.  When  the  charge,  taken  as  a  whole, 
is  fair,  an  appellate  court  should  not  labor 
to  sustain  an  objection  upon  a  sentence 
which,  taken  by  itself,  may  not  express  in 
the  happiest  terms  a  proposition  which  is 
correct.  Georgetown  &  T.  R.  Co.  v.  Smith, 
5:  274,  25  App.  D.  C.  259. 

1285.  The  giving  of  instructions  which  as 
a  whole  correctly  state  the  law  will  not 
operate  as  reversible  error  although  they  are 
Dieest  1-52  I<.R.A.(N.S.) 


subdivided  into  different  paragraphs,  some 
of  which  are  in  themselves  incomplete,  but 
not  in  conflict  with  others  therein,  and 
numbered.  Chicago,  R.  I.  &  P.  R.  Co.  v, 
Johnson,  27:  879,  107  Pac.  662,  25  Okla. 
760. 

1286.  An  instruction  is  not  subject  to  ex- 
ception, though  it  may  be  erroneous  when 
standing  alone,  if,  when  considered  with 
the  other  instructions  upon  the  same  sub- 
ject given  in  connection  therewith,  it  is 
not  prejudically  erroneous.  Allen  v.  Chi- 
cago, B.  &  Q.  R.  Co.  23:  278,  118  N.  W.  655, 
82  Neb.  726. 

1287.  An  erroneous  instruction  upon  an 
issue  which  there  is  no  eyidence  to  support 
is  not  reversible  error.  State  v.  Smith, 
36:  910,  72  S.  E.  321,  156  N.  C.  628. 

1288.  The  giving  of  an  instruction  which 
states  a  correct  proposition  of  law,  but 
which  has  no  application  to  the  issues  in- 
volved, or  the  proof,  will  not  warrant 
a  reversal  of  judgment,  unless  it  is  ap- 
parent that  such  instruction  misled  the 
jury.  Pearson  v.  Yoder,  48:  334,  134  Pac. 
421,  39  Okla.  105. 

1289.  The  giving  of  an  instruction  covering 
a  case  not  presented  by  the  pleadings,  al- 
though there  be  evidence  on  the  subject  cov- 
ered thereby,  is  erroneous,  unless  it  clearly 
appears  that  the  rights  of  the  parties  com- 
plaining have  not  been  injuriously  affected 
thereby.  Kunst  v.  Grafton,  26:  1201,  67  S. 
E.  74,  67  W.  Va.  20. 

1290.  A  party  taking  a  case  to  a  higher 
court  for  review  cannot  complain  of  an  in- 
struction which  was  more  favorable  than 
he  was  entitled  to,  since,  as  to  him,  the 
giving  thereof  was  error  without  injury. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Johnson,  27: 
879,  107  Pac.  662,  25  Okla.  760. 

1291.  Where  a  statute  provides  that  no 
judgment  shall  be  reversed  unless  it  shall 
appear  that  the  error  complained  of  af- 
fected the  substantial  rights  of  the  com- 
plaining party,  the  mere  possibility  that  the 
court  made  a  wrong  statement  of  facts  in 
instructing  the  jury  does  not  require  a  re- 
versal. Solberg  v.  Robbins  Lumber  Co. 
37:  790,  133  N.  W.  28,  147  Wis.  259. 

1292.  The  reviewing  court  cannot  deter- 
mine, as  matter  of  law,  that  it  is  reversible 
error  for  the  trial  judge  to  fail  to  define  to 
the  jury  more  fully  than  he  saw  fit  to  do, 
common  words,  the  meaning  of  which  may 
be  assumed  to  have  been  understood  by 
them.  Com.  v.  Buckley,  22:  225,  86  N.  E. 
910,  200  Mass.  346. 

1293.  The  giving  of  abstract  and  mislead- 
ing instructions  is  not  necessarily  reversi- 
ble error.  Suell  v.  Derricott,  23:  996,  49 
So.  895,  161  Ala.  259. 

1294.  An  inaccuracy  in  an  instruction  to 
the  jury  is  not  prejudicial  to  the  losing 
party,  if  it  merely  imposes  upon  his  op- 
ponent a  burden  which  he  is  not  bound  to 
sustain  to  be  entitled  to  a  recovery.  S. 
Bluthenthal  &  Co.  v.  Bridges,  24:  279,  120 
S.  W.  974,  91  Ark.  212. 

1295.  An  inadvertent  insertion  of  a  word 
in  an  instruction  to  the  jury  is  not  revers- 
ible error  where  it  operates  in  favor  of  the 


142 


APPEAL  AND  ERROR,  VII.  m,  4. 


complaining   party.     Hiroux   v.   Baum,    19: 
332,  118  N.  W.  533,  137  Wis.  197. 

1296.  An  erroneous  instruction  to  a  jury, 
given  for  the  plaintiff,  is  not  prejudicial  to 
the  defendant,  if,  after  all  the  evidence  was 
adduced,  it  would  have  been  the  duty  of  the 
court,  upon  proper  motion,  to  direct  a  ver- 
dict for  the  plaintiff.  Davis  v.  Chesapeake 
&  O.  R.  Co.  9:  993,  56  S.  E.  400,  61  W.  Va. 
246. 

1297.  No  complaint  can  be  made  on  the 
generality  of  the  instructions  to  the  jury, 
unless  proper  ones,  more  specific  in  their 
nature,  were  asked.  St.  Louis,  I.  M.  &  S.  R. 
Co.  V.  Jackson,  6:  646,  93  S.  W.  746,  78  Ark. 
100. 

1298.  Permitting  a  finding  for  plaintiff  in 
case  of  either  an  express  or  implied  con- 
tract is  not  prejudicial,  although  no  evi- 
dence of  an  implied  contract  exists,  if  the 
evidence  of  an  express  one  is  uncontra- 
dicted. Klinck  V.  Chicago  City  R.  Co. 
52:  70,  104  N.  E.  669,  262  111.  280. 

1299.  A  judgment  will  not  be  reversed  on 
account  of  general  statements  in  an  instruc- 
tion which  might  under  some  circumstances 
have  been  prejudicially  erroneous,  if  the 
issue  was  submitted  to  the  jury  in  such  a 
manner  that  they  could  not  have  misunder- 
fltood  the  law  applicable  thereto.  Searles  v. 
Northwestern  Mut.  L.  Ins.  Co.  29:  405,  126 
N.  W.  801,  148  Iowa,  65. 

1300.  It  is  reversible  error  to  use  in  one 
instruction  to  the  jury  a  vital  word  in  sev- 
•eral  different  senses,  the  effect  of  which 
would  naturally  be  to  confuse  rather  than 
enlighten  the  jury.  Neff  v.  Cameron,  18: 
320,  111  S.  W.  1139,  213  Mo.  350. 

1301.  Giving  an  instruction  which  has  no 
basis  in  the  evidence  is  reversible  error. 
State  V.  Smith,  4:  539,  106  N.  W.  187,  129 
Iowa,  709. 

1302.  It  is  reversible  error  to  give  an  in- 
struction presenting  an  hypothesis  which  has 
no  foundation  in  the  evidence  adduced,  un- 
less the  court  can  clearly  see  that  it  did 
not  prejudice  the  exceptor.  Lewis,  H.  &  Co. 
V.  Montgomery  Supply  Co.  4:  132,  52  S.  E. 
1017,  59  W.  Va.  75. 

1303.  Instructions  submitting  issues  not 
authorized  by  the  evidence  are,  if  prejudi- 
cial, ground  for  reversal.  Mendel  v.  Miller, 
7:  1 184,  56  S.  E.  88,  126  Ga.  834. 

1304.  The  giving  of  instruction  having  no 
basis  or  foundation  in  the  evidence  in  the 
case  in  which  they  are  given  is  prejudicial, 
and  constitutes  reversible  error.  Kuyken- 
dall  V.  Fisher,  8:  94,  56  S.  E.  48,  61  W.  Va. 
87. 

1305.  A  charge  abstractly  correct,  but  not 
warranted  by  the  evidence,  constitutes  rever- 
sible error,  where  it  is  not  apparent  that  the 

I  jury  could  not  have  been  misled  by  it. 
Culberson  v.  Alabama  Constr.  Co.  9:  411,  58 
S.  E.  765,  127  Ga.  399. 

1306.  If  the  court  fails  adequately  to  ap- 
ply the  correct  rule  of  law  to  the  facts  of 
the  case,  or  places  undue  emphasis  upon  cor- 
rect but  inapplicable  rules  of  law  tending 
to,  and  which  apparently  does,  mislead  the 
jury,  it  constitutes  reversible  error.  Waller 
v.  Ross,  12:  721,  110  N.  W.  252,  100  Minn.  7. 
Digest  1-52  L.R.A.(N.S.) 


1307.  The  giving  of  an  instruction  which 
misstates  the  law  on  a  material  issue,  to 
the  prejudice  of  plaintiff,  is  a  sulficient 
ground  for  the  reversal  of  a  judgment 
against  him.  Singer  Sewing  Machine  Co.  v. 
Robertson,  34:  887,  127  N.  W.  866,  87  Neb. 
542. 

1308.  A  modification  of  an  instruction  as 
to  the  specific  evidence  the  jury  is  to  con- 
sider, so  as  not  to  include  that  of  a  par- 
ticular person,  is  not  reversible  error,  if  his 
testimony  was  included  by  a  general  charge 
as  to  consideration  of  evidence.  Kennedy 
.V.    Modern    Woodmen   of   America,    28:  181, 

90  N.  E.  1084,  243  111.  560. 

1309.  Error  in  one  instruction  to  the  jury 
requires  a  reversal,  where  it  is  impossible 
to  determine  on  what  theory  of  the  case 
the  verdict  was  founded.  Morrow  v.  South- 
ern R.  Co.  16:  642,  61  S.  E.  621,  147  N.  C. 
623. 

1310.  Instructions  given  in  an  action  for 
slander,  so  drawn  as  to  limit  the  effect  of 
mitigating  circumstances  to  the  inquiry  as 
to  the  existence  of  actual  malice,  deprive 
the  defendant  of  the  benefit  of  the  consider- 
ation of  such  facts  by  the  jury  in  ascertain- 
ing the  amount  of  the  damages,  and  are  er- 
roneous. Alderson  v.  Kahle,  51:  1198,  80 
S.  E.  1109,  73  W.  Va.  690. 

1311.  That  the  court  tells  the  jury  that  a 
railroad  company  will  not  be  liable  for 
ejecting  a  trespasser  from  its  train  by  law- 
ful means,  without  defining  such  terms,  is 
not  prejudicial  error  in  an  action  to  hold 
it  liable  for  injury  to  a  person  so  ejected, 
if  there  is  no  question  that,  if  the  evidence 
is  believed,  the  means  employed  were  un- 
lawful. Golden  v.  Northern  P.  R.  Co.  34: 
1 1 54,  104  Pac.  549,  39  Mont.  435. 

1312.  Where  an  action  for  personal  injury 
occurring  in  one  state  is  brought  in  another 
state,  where  plaintiff  had  a  right  to  bring 
it,  it  is  error  for  the  court  to  instruct  the 
jury  that  the  fact  that  plaintiff  brought  the 
action  away  from  his  home  and  among 
strangers  may  be  considered  by  them  in  so 
far  as  it  may  throw  light,  or  tend  to  throw 
light,  upon  the  transaction.  Mason  v.  Nash- 
ville, C.  &  St.  L.  R.  Co.  33:  280,  70  S.  E.  225, 
135   Ga.   741. 

1313.  In  a  contest  over  the  probate  of  a 
will,  it  is  error  to  instruct  the  jury  that 
their  verdict  will  be  that  the  instrument  of- 
fered for  probate  is  not  the  will  of  decedent, 
if  they  find  that  she  did  not  sign  it,  where 
the  evidence  is  insufficient  to  sustain  such 
a  finding.  Re  Gray,  33:  319,  130  N.  W.  746, 
88   Neb.   835. 

1314.  A  railroad  company  which  is  sought 
to  he  held  liable  for  obstructing  the  drain- 
age from  a  lot  abutting  on  a  street,  the  grade 
of  which  it  changes  for  its  own  benefit,  is 
not  injured  by  a  statement  in  an  instruc- 
tion as  to  the  character  of  opening  which  it 
should  have  left  in  its  embankment,  if  it  in 
fact  left  none.  Shrader  v.  Cleveland,  C.  C. 
&  St.  L.  R.  Co.  26:  226,  89  N.  E.  997,  242 
111.  227. 

1315.  The  question  whether  instructions 
given  on  the  trial  of  a  suit  for  libel  regard- 
ing  particular   questions   in   the   case,  not 


APPEAL  AND  ERROR,  VII.  m,  4. 


143 


related  to  that  of  damages,  misstate  the 
law,  becomes  immaterial  as  not  affecting  the 
plaintiff's  substantial  rights,  where  the  jury 
finds  specially  from  the  evidence  that  the 
plaintiff  suffered  no  damage,  since  it  will 
not  be  presumed  that  such  finding  was  in- 
duced by  instructions  regarding  points  not 
related  to  damages.  Coleman  v.  MacLennan, 
20:  361,  98  Pac.  281,  78  Kan,  711. 

1316.  That  plaintiff's  right  to  recover  per- 
sonal property  was  made  to  depend,  by  the 
court  in  its  instruction,  upon  ownership 
rather  than  right  of  possession,  is  not  re- 
versible error,  where  the  word  "ownership" 
was  used  in  the  sense  of  right  of  possession, 
and  it  is  improbable  that  the  jury  was  mis- 
led. Log  Owners'  Booming  Co.  v.  Hubbell, 
4:  573,  97  N.  W.  157,  135  Mich.  65. 

1317.  If,  after  having  notice  of  the  terms 
of  a  guaranty  written  over  his  indorsement, 
the  payee  of  a  note  ratifies  it,  any  error  in 
an  instruction  that  it  was  immaterial  if  the 
guaranty  was  written  before  or  after  the 
signature  Mas  placed  on  the  note,  if  the  sig- 
nature was  placed  there  with  the  intention 
of  guarantying  it  and  the  words  were  writ- 
ten in  accordance  with  that  purpose,  is 
harmless.  George  E.  Lloyd  &  Co.  v.  Mat- 
thews, 7:  376,  79  N.  E.  172,  223  111.  477. 

1318.  Omission  of  the  word  "ordinarily" 
before  the  words  "prudent  and  cautious,"  in 
defining  the  acts  which  would  constitute 
probable  cause  for  an  arrest,  is  not  reversi- 
ble error,  where  the  court  has  impressed 
upon  the  jury  the  necessity  of  reasonable 
grounds  of  suspicion.  Jenkins  v.  Gilligan, 
9:  1087,  108  N.  VV.  237,  131  Iowa,  176. 

1319.  An  instruction  that  one  whose  land 
is  injured  by  seepage  from  an  irrigation 
ditch  can  recover  damages  therefor  only  by 
establishing  negligence  in  its  maintenance 
and  operation  by  a  "clear"  preponderance 
of  evidence,  while  erroneous,  is  not  prejudi- 
cial, where  plaintiff  offers  no  evidence  of 
negligence,  and  rests  his  case  on  the  theory 
that  the  defendant  was  an  insurer  of  his 
ditch.  Fleming  v.  Lockwood,  14:  628,  92 
Pac.  962,  36  Mont.  384. 

1320.  Error  in  permitting  a  recovery  in  a 
joint  action  for  possession  of  real  estate, 
if  the  statute  of  limitations  had  not  run 
against  any  plaintiff,  is  not  reversible,  if 
defendant,  claiming  by  adverse  possession, 
has  not  shown  color  of  title.  Napier  v- 
Little,  38:  91,  73  S.  E.  3,  137  Ga.  242. 

1321.  A  passenger,  having  a  right  of  ac- 
tion against  a  carrier  and  a  terminal  corpo- 
ration, cannot  be  said  to  have  suffered  no 
injury  by  a  direction  in  an  action  to 
hold  both  liable  for  his  injury,  tiiat  a  re- 
covery could  be  had  against  one  defendant 
only,  because  he  recovered  a  judgment 
against  the  terminal  company,  if  it  has 
not  been  satisfied.  Hunt  v.  New  York, 
N.  H.  &  H.  R.  Co.  40:  778,  98  N.  E.  787,  212 
Mass.  102. 

Criminal  cases. 

Instructions  as  to  witnesses,  see  infra,  1376, 

1377. 
As  to  facts  and  evidence  in,  see  infra,  1389- 

1395. 
Digest   1-52  Ii.R.A.(N.S.) 


Correctness    of    instructions,    generally,    see 
Trial,  III.  e,  5. 

1322.  Error  in  a  portion  of  a  charge  in  a 
criminal  case  is  not  reversible  if,  in  view 
of  the  whole  charge,  it  is  not  probable  that 
the  jury  were  misled.  State  v.  Davis,  34: 
295,  70  S.  E.  811,  88  S.  C.  229. 

1323.  Submitting  to  the  jury  a  form  of 
verdict  in  a  criminal  case  without  instruct- 
ing them  it  is  to  be  used  only  in  case  they 
find  defendant  guilty  is  not  reversible  error, 
where  other  instructions  plainly  indicate 
that  such  is  the  fact.  State  v.  Davis,  4: 
1023,  92  S.  W.  484,  194  Mo.  485. 

1324.  An  erroneous  definition  of  "heat  of 
passion"  does  not  require  a  reversal  of  a 
conviction  of  murder  in  the  first  degree. 
State  V.  Fuller,  8:  762,  85  Pac.  369,  34  Mont. 
12. 

1325.  An  instruction  defining  a  reasonable 
doubt,  which  commences  with  the  statement 
that  "a  reasonable  doubt  is  that  state  of 
the  case  which,  after  the  entire  comparison 
and  consideration  of  all  of  the  evidence  and 
instructions  of  the  court,  leaves  your  minds 
in  doubt  and  uncertainty  as  to  the  guilt  of 
the  defendant,"  is  not  rendered  prejudicial- 
ly erroneous  by  the  inclusion  of  the  words, 
"and  instructions  of  the  court."  Stehr  v. 
State,  45:  559,  139  N.  W.  676,  92  Neb.  755. 

1326.  Where  the  defense  in  a  prosecution 
for  homicide  is  that  the  defendant  killed 
the  deceased  for  the  purpose  of  preventing 
the  deceased  from  committing  the  crime  of 
rape  upon  the  daughter  of  the  defendant, 
it  is  improper  to  instruct  the  jury  that  they 
may  consider  the  previous  bad  character  of 
such  daughter  as  bearing  upon  the  guilt  of 
accused,  provided  he  knew  of  such  bad 
character.  Litchfield  v.  State,  45:  153,  126 
Pac.  707,  8  Okla.  Crim.  Rep.  164. 

1327.  In  a  trial  for  homicide,  in  which 
there  is  an  attempted  justification  by  self- 
defense,  it  is  reversible  error  to  charge  that 
svich  justification  cannot  be  made  out  unless 
the  accused  in  good  faith  endeavored  to  es- 
cape, although  the  jury  was  also  instructed 
that  he  was  not  necessarily  bound  to  retreat, 
where  the  proved  circumstances  preclude 
any  practicable  means  of  escape  or  retreat 
without  great  increase  in  peril  of  death  or  of 
great  bodily  harm.  State  v.  Gardner, 
2:  49,  104  N.  W.  971,  96  Minn.  318. 

1328.  An  instruction  that  a  partner  may 
be  guilty  of  embezzling  the  funds  of  a  part- 
nership constitutes  harmless  error  in  a  pros- 
ecution for  embezzlement,  wherein  it  is  not 
shown  that  the  property  alleged  to  liave 
been  embezzled  belonged  to  a  partnership 
of  which  the  accused  was  a  member.  State 
V.  Hogg,  29:  830,  53  So.  225,   126  La.   1053. 

1329.  Where  it  is  conceded  that  if  a  check 
had  been  cashed  on  October  6th  an  indict- 
ment based  on  the  transaction  would  not  be 
barred,  an  instruction  to  that  effect  which 
names  October  6th  instead  of  October  5tli, 
the  date  when  the  evidence  shows  the  check 
to  have  been  cashed,  is  not  prejudicial. 
State  v.  Smith,  49:  834,  144  N.  W.  32, 
162  Iowa,  336. 

1330.  In  a  prosecution  for  rape  charged  in 
the  first  count  of  the  indictment  to  have  been 


144 


APPEAL  AND  ERROR,  VII.  m,  4. 


committed  with  the  consent  of  the  female, 
and  in  the  second  count  to  have  been  com- 
mitted forcibly  and  against  her  will,  an  in- 
struction to  the  jury  that  they  may  bring  in 
a  general  verdict  of  guilty  upon  both  counts, 
if  they  find  the  evidence  to  be  of  such  char- 
acter as  to  warrant  a  conviction  upon  either 
count,  is  erroneous  where  the  law  affixes  a 
different  punishment  to  the  two  grades  of 
the  offense;  but  the  error  is  not  prejudicial 
when  the  minimum  penalty  is  imposed. 
State  V.  Hensley,  9:  277,  79  N.  E.  462,  75 
Ohio  St.  255. 
Erroneous  reason  for  Instruction. 

1331.  Giving  an  erroneous  reason  for  a 
correct  instruction  is  not  prejudicial  error. 
State  V.  Donovan,  36:  167,  132  N.  W.  698, 
28  S.  D.  136. 

Illogical   arrangement. 

1332.  If  the  instructions  as  a  whole  cor- 
rectly state  the  law,  the  judgment  will  not 
be  reversed  because  of  illogical  arrangement 
of  the  several  instructions,  if  it  appears 
from  the  whole  record  that  the  jury  was 
not  misled  thereby.  Bigley  v.  National 
Fidelity  &  C.  Co.  50:  1040,  144  N.  W.  810, 
94  Neb.  813. 

Conflicting  instructions. 

1333.  The  doctrine  of  harmless  error  is 
seldom  applicable  to  the  giving  of  conflict- 
ing instructions.  Gibboney  Sand  Bar  Co.  v. 
Pulaski  Anthracite  Coal  Co.  24:  1185,  66 
S.  E.  73,  110  Va.  444. 

1334.  The  giving  of  conflicting  instruc- 
tions is  reversible  error,  where  it  is  impos- 
sible to  determine  by  which  the  jury  was 
guided.  Nutt  v.  Davidson,  44:  1170,  131 
Pac.  390,  54  Colo.  586. 

1335.  The  giving  of  antagonistic  instruc- 
tions on  a  material  issue  is  reversible  error. 
Red  Men's  Fraternal  Acci.  Asso.  v.  Rippey, 
50:  1006,  103  N.  E.  345,  104  N.  E.  641,  181 
Ind.   454. 

Oral  instructions. 

1336.  Although  it  is  better  practice  to  re- 
quire instructions  to  be  in  writing,  the  mere 
fact  that  an  instruction  is  oral  is  not 
ground  for  reversal.  State  v.  Woodrow, 
2:  862,  52  S.  E.  545,  58  W.  Va.  527. 
Failure  to  number  and  sign. 

1337.  Failure  of  the  trial  court  to  number 
and  mark  the  instructions  given  to  the  jury 
is  not  erroneous  under  the  Oklahoma  stat- 
ute, in  the  absence  of  a  request  therefor  by 
counsel,  but,  if  erroneous,  would  be  harm- 
less error.  Mclver  v.  Williamson-Halsell- 
Frazier  Co.  13:  696,  92  Pac.  170,  19  Okla. 
454. 

(2)   As  to  negligence. 

(See   also   same   heading   in  Digest   L.R.A. 
I-IO.) 

Necessity  or  propriety  of  instructions,  see 

Trial,  893-905. 
Correctness    of    instructions    generally,    see 

Trial,  III.  e,  4. 
See  also  supra,  1312. 

1338.  A  judgment  for  plaintiff  in  a  negli- 
gence case  will  be  reversed  if  defendant's 
Digest  1-52  I..R.A.(N.S.) 


theory  of  the  case  was  not  fairly  presented 
to  the  jury  in  the  instructions,  which  were 
insufficient  in  stating  the  rules  of  law  ap- 
plicable to  the  case.  Philip  Carey  Roofing 
&  Mfg.  Co.  V.  Black,  51:  340,  164  S.  W.  1183, 
129  Tenn.  30. 

1339.  An  instruction  which  permits  the 
jury  to  speculate  upon  what  might  be 
negligence,  and  base  a  verdict  upon  some- 
thing they  might  infer  to  be  negligence, 
other  than  the  specific  negligent  act 
charged  in  a  complaint,  is  error.  Messer 
V.  Bruening,  48:  945,  142  N.  W.  158,  25 
N.  D.  599. 

1340.  An  instruction  to  the  jury  in  an 
action  for  negligence,  that  negligence  is 
wanton  where  the  person  causing  the  injury 
at  the  time  sees  and  knows  that  the  person 
injured  is  in  a  position  of  peril,  and,  not- 
withstanding such  knowledge,  commits  the 
act  causing  the  injury,  though  it  was  in  his 
power  to  refrain  from  doing  such  act,  is 
not  so  misleading  as  to  warrant  the  re- 
versal of  a  judgment  upon  a  verdict  against 
the  defendant.  Souther  v.  Northwestern 
Teleph.  Exch.  Co.  45:  601,  136  N.  W.  571,  118 
Minn.  102. 

1341.  It  is  error  to  make  the  right  to  re- 
cover against  a  municipal  corporation  for 
injury  caused  by  a  defect  in  a  sidewalk  de- 
pend upon  actual  notice  of  the  de:ect,  if 
there  is  evidence  tending  to  show  that  it 
was  chargeable  with  constructive  notice. 
Campbell  v.  Chillicothe,  39:  451,  144  S.  W. 
408,  239  Mo.  455. 

1342.  It  is  not  reversible  error  in  an  ac- 
tion by  a  child  to  hold  a  municipal  corpora- 
tion liable  for  injuries  due  to  a  defective 
sidewalk,  for  the  court  to  instruct  that  the 
fact  that  the  father  or  mother  of  the  child 
knew  that  it  was  not  reasonably  safe  for 
travel  was  no  defense,  where  counsel  had 
argued  that,  if  they  knew  of  the  condition 
of  the  walk,  it  was  their  duty  to  notify  the 
city.  Neff  v.  Cameron,  18:  320,  111  S.  W. 
1139,  213  Mo.  350. 

1343.  To  instruct  that,  on  being  in- 
formed that  a  county  bridge  is  out  of  re- 
pair, it  is  the  duty  of  the  county  commis- 
sioners to  examine  it  thoroughly  and  make 
it  "perfectly  safe"  for  ordinary  travel,  is 
not  reversible  error,  where  the  jury  are 
also  instructed  that  the  standard  of  duty 
is  that  of  the  ordinarily  prudent  man. 
Gehringer  v.  Lehigh  County,  35:  1127,  80 
Atl.  987,  231  Pa.  497. 

1344.  It  is  error  to  instruct  the  jury  in 
effect  that  an  officer  who,  in  lawful  self- 
defense,  while  attempting  to  arrest  another, 
at  close  range,  shoots  at  the  other,  and, 
missing  him,  accidentally  wounds  a  by- 
stander who  at  the  time  is  to  one  side  of 
the  line  of  true  aim  at  such  assailant,  and 
a  few  feet  away  from  him,  is,  in  an  action 
for  damages,  liable  to  such  bystander  if  he 
knew,  or  is  chargeable  with  knowledge,  of 
the  presence  of  such  bystander,  as  if  this, 
of  itself,  constituted  want  of  due  care,  and 
therefore  was  per  se  actionable  negligence. 
Lord  v.  Shaw,  50:  1069,  137  Pac.  885,  41 
Okla  347. 


APPEAL  AND  ERROR,  VII.  m,  4. 


145 


Xeglisence  of  carrier. 

Correctness    of    instructions    generally,    see 
Trial,  1050-1054. 

1345.  An  instruction  in  an  action  against 
a  railroad  company  for  confiscating,  a  pas- 
senger's ticket  and  expelling  him  from  the 
train,  that  carriers  of  passengers  are  bound 
to  exercise  the  highest  degree  of  care,  is 
not  prejudicial  error,  even  if  erroneous,  if, 
under  the  circumstances,  the  carrier  would 
be  liable  if  required  to  exercise  only  ordi- 
nary care.  Forrester  v.  Southern  P.  Co. 
48:  I,  134  Pac.  753,  136  Pac.  705,  36  Nev.  247. 

1346.  Error  in  defining  gross  negligence  is 
not  reversible  in  an  action  to  hold  a  rail- 
road company  liable  for  injury  to  a  gra- 
tuitous passenger,  if,  under  the  circum- 
stances, defendant  would  be  liable  in  case 
of  ordinary  negligence,  which  was  amply 
shown  by  the  evidence.  John  v.  Northern 
P.  R.  Co.  32:  85,  111  Pac.  632,  42  Mont.  18. 

1347.  The  giving  of  an  instruction  as  to 
duty  of  railroad  employees  to  passengers  in 
regard  to  the  starting  and  stopping  of 
trains,  in  an  action  for  personal  injuries  to 
a  passenger  caused  by  his  being  struck,  while 
standing  on  a  car  step,  by  an  express  truck 
alleged  to  have  been  negligently  left  in  dan- 
gerous proximity  to  the  track,  while  imma- 
terial because  the  manner  of  starting  or 
stopping  the  train  was  not  in  issue,  does 
not  constitute  error  sufficient  to  justify  a 
reversal  upon  the  ground  that  it  was  mis- 
leading, confusing,  or  prejudicial.  Irvin  v. 
Missouri  P.  R.  Co.  26:  739,  106  Pac.  1063, 
81  Kan.  649. 

Of  railroad. 

Correctness    of    instructions    generally,    see 
Trial,  1044-1048. 

1348.  A  recovery  against  a  railroad  com- 
pany for  personal  injuries  will  not  be  re- 
versed because  of  an  instruction  predicat- 
ing a  right  to  recover  upon  a  state  of  facta 
not  shown  to  exist,  if  the  defendant  in 
fact  owed  plaintiff  a  duty  which  it  failed 
to  discharge,  and  which  failure  caused  the 
injury.  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Jackson,  31 :  980,  132  S.  W.  206,  96  Ark. 
469. 

Negligence  of  master. 
Correctness    of    instructions    generally,    see 
Trial,  1039-1043. 

1349.  A  charge  in  an  action  to  recover 
damages  for  personal  injuries  caused  by  the 
breaking  of  a  defective  eccentric  strap  on 
a  railroad  locomotive  that  it  was  the  de- 
fendant's duty  to  furnish  plaintiff  instru- 
mentalities safe  for  use,  does  not  constitute 
reversible  error  where  the  court's  attention 
was  not  called  to  the  inaccuracy  of  the  lan- 
guage before  the  jury  retired.  Koreis  v.  Min- 
neapolis &  St.  L.  R.  Co.  25:  339,  122  N.  W. 
668,  108  Minn.  449. 

1350.  An  instruction  stating  the  duty  of 
an  employer  as  to  the  guarding  of  gearing 
about  which  an  employee  was  compelled  to 
work,  to  be,  to  make  the  guard  such  that 
employees  shall  be  secure  against  danger 
or  violence  while  performing  their  work, 
is  prejudicial  in  an  action  to  hold  the  mas- 
ter liable  for  injury  through  an  unguarded 
gearing,  where  the  jury  find  him  to  be 
Digest  1-52  I..R.A.(N.S.) 


negligent,  while  the  evidence  was  such  that, 
in  the  absence  of  such  instruction,  he  might 
have  been  found  to  be  free  from  negligence. 
West  V.  Bayfield  Mill  Co.  45:  134,  128  N. 
W.   992,   144   Wis.   106. 

1351.  An  instruction  in  an  action  by  a 
servant  to  hold  his  master  liable  for  inju- 
ries alleged  to  be  due  to  the  negligence  of 
a  superintendent,  in  which  the  defense  is 
that  the  act  which  actually  caused  the  in- 
jury was  done  merely  as  a  common  laborer, 
that,  if  he  was  found  to  be  superintendent, 
no  one  particular  act  could  take  away  from 
him  that  authority,  will  justify  the  jury  in 
understanding  that,  being  a  superintendent, 
the  master  was  liable  for  every  act  per- 
formed by  him,  and  is  reversible  error  not- 
withstanding the  rule  as  to  the  master's 
liability  for  acts  done  by  the  superintend- 
ent as  a  common  laborer  has  been  correct- 
ly stated  elsewhere.  Gallagher  v.  Newman, 
16:  146,  83  N.  E.  480,  190  N.  Y.  444. 
Contributory  negligence. 
Correctness  of  instructions  as  to,  generally, 

see  Trial,  1036,  1037,  1044,  1047. 

1352.  When  the  court  charges  that  the 
plaintiff  was  guilty  of  contributory  negli- 
gence, no  error  prejudicial  to  the  defendant 
is  committed  by  another  instruction  that 
the  burden  is  upon  the  defendant  to  show 
such  negligence.  Barker  v.  Kansas  City, 
M.  &  0.  R.  Co.  43:  1121,  129  Pac.  1151,  88 
Kan.  767. 

1353.  An  instruction  upon  the  question  of 
contributory  negligence  is  not  reversible  er- 
ror if,  because  of  the  absence  of  evidence  on 
that  subject,  it  could  not  have  misled  the 
jury.  Walter  v.  Louisville  R.  Co.  43:  126, 
150  S.  W.  824,  150  Ky.  652. 

1354.  The  modification  of  an  instruction 
that,  if  plaintiff  and  defendant  were  both 
guilty  of  negligence  contributing  to  plain- 
tiff's injury,  the  latter  could  not  recover, 
by  the  addition  of  the  words,  provided  the 
plaintiff  is  "guilty  of  a  want  of  ordinary 
care,"  while  not  proper  or  necessary,  not 
being  liable  to  mislead  the  jury,  will  not 
work  a  reversal.  Pauckner  v.  Wakem,  14: 
H18,  83  N.  E.  202,  231  111.  276. 

(3)    As  to  damages. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Necessity  or  propriety  of  instructions  gen- 
erally, see  Trial,  889-892. 

Correctness  of  instructions  generally,  see 
Trial,  III.  e,  2. 

1S55.  A  charge  of  the  court  as  to  a  meas- 
ure of  damages,  in  a  more  restricted  form 
than  had  before  been  properly  given  by 
the  court,  furnishes  no  reversible  error,  in 
the  absence  of  a  request  of  the  party  in- 
jured for  an  addition  clearly  stating  the 
proper  rule.  Reynolds  v.  Great  Northern 
R.  Co.  52:  91,  138  N.  W.  30,  119  Minn.  251. 

1356.  A  contradictory  and  meaningless  in- 
struction upon  the  measure  of  damages  does 
not  require  reversal,  if  it  is  apparent  that 
the  jury,  in  assessing  the  damages,  followed 
10 


146 


APPEAL  AND  ERROR,  VII.  m,  4. 


a  correct  instruction.  White  Walnut  Coal 
Co.  V.  Crescent  Coal  &  Min.  Co.  42:  669,  98 
N.  E.  669,  254  111.  368. 

1357.  Submitting  the  measure  of  damages 
to  a  jury  on  a  wrong  theory  is  error  without 
prejudice,  where  the  result  attained  is  the 
same  as  would  necessarily  have  followed, 
had  the  question  not  been  submitted  to  the 
jury  at  all.  Kelly  v.  Pierce,  12:  180,  112 
N.  W.  995,  16  N.  D.  234. 

1358.  The  omission  from  an  instruction  as 
to  an  element  of  damages  of  a  requirement 
that  plaintiff  must  be  found  to  be  entitled 
to  recover  will  not  require  reversal,  where 
such  requirement  is  properly  set  forth  in 
other  instructions.  Van  Cleef  v.  Chicago, 
23:  636,  88  N.  E.  815,  240  111.  318. 

1359.  An  erroneous  instruction  permitting 
the  recovery  of  nominal  damages  is  not  pre- 
judicial if  the  verdict  is  for  substantial 
damages,  and  is  supported  by  evidence. 
Stratton  v.  Mt.  Hermon  Boys'  School, 
49:  57,  103  N.  E.  87,  216  Mass.  83. 

1360.  An  instruction  that  the  wrongful 
failure  of  a  bank  to  honor  a  check  entitles 
the  drawer  to  temperate  damages,  to  be 
fixed  by  the  jury,  is  not  prejudicial  as  tend- 
ing to  cause  the  jury  to  believe  that  the 
drawer  is  entitled  to  recover  only  a  small 
sum,  where  the  court  further  directs  them 
to  return  such  sum  as  is  right  and  proper 
under  the  circumstances, — especially  where 
no  request  is  made  for  any  further  instruc- 
tion. Hilton  r.  Jesup  Bkg.  Co.  11:  224,  57 
S.  E.  78,  128  Ga.  30. 

1361.  In  an  action  by  a  passenger  to  recov- 
er damages  for  having  been  wrongfully 
threatened  with  expulsion  from  a  street  car, 
an  instruction  that  the  jury  may  weigh  the 
worldly  circumstances  of  the  parties  is  re- 
versible error,  where  there  is  no  evidence  as 
to  such  circumstances,  and  the  only  question 
to  be  determined  is  the  amount  of  the  ver- 
dict. Georgia  R.  &  Electric  Co.  v.  Baker, 
7:  103,  54  S.  E.  639,  125  Ga.  562. 

1362.  That  the  court  in  an  action  on  a 
bond  gave  the  jury  an  incorrect  rule  for 
the  computation  of  interest  is  no  ground 
for  reversal,  where  such  rule  operated  to 
the  benefit  of  appellant,  and  necessarily 
made  the  award  of  the  jury  less  than  it 
would  have  been  under  the  correct  rule. 
United  States  Fidelity  k  G.  Co.  t.  State, 
26:  865,  106  Pac.  1040,  81  Kan.  660. 

1363.  The  charge  of  a  court  in  an  action 
against  a  carrier  for  loss  of  goods,  on  the 
measure  of  damages,  which  is  more  favor- 
able to  the  carrier  than  it  is  entitled  to, 
and  which,  under  the  circumstances  and 
proof  offered,  is  not  prejudicial,  does  not 
require  a  new  trial,  although  it  is  not  en- 
tirely accurate.  Alabama  G.  S.  R.  Co.  v. 
McKenzie,  45:  18,  77  S.  E.  647,  139  Ga.  410. 
For  malicious  prosecntion. 

1364.  An  instruction  in  an  action  to  re- 
cover damages  for  malicious  prosecution, 
that  the  damages  might  include  an  allow- 
ance for  suffering  caused  by  cold  and  lack 
of  bed  and  food  during  his  imprisonment, 
cannot  be  regarded  as  prejudicial  where  the 
only  evidence  to  which  it  is  applicable  is  to 
the  effect  that  the  bed  furnished  was  hard 
Digest  1-52  L.R.A.(N.S.) 


and  that  plaintiff  ate  nothing,  which  may 
have  been  due  to  his  own  volition.  Seidler 
v.  Burns,  33:  291,  79  Atl.  53,  84  Conn.  111. 
For  negligent  injuries. 

1365»  It  is  not  prejudicial  error  to  use  the 
word  "may"  instead  of  "will"  in  defining 
the  damages  to  which  a  person  injured  by 
another's  negligence  is  entitled,  which  in- 
cludes an  allowance  for  such  as  it  is  rea- 
sonably certain  "that  she  may  endure." 
Cleveland  v.  South  Covington  &  C.  Street 
R.  Co.  11:853,  100  S.  W.  283,  30  Ky.  L. 
Rep.    1072. 

1366.  An  instruction  to  the  jury,  in  an  ac- 
tion for  personal  injuries,  in  no  event  to  al- 
low plaintiff  more  than  $15,000,  without 
sjiccifically  explaining  that  that  amount  was 
named  because  it  was  the  sum  claimed  in 
the  petition,  and  must  therefore  limit  the 
plaintiff's  recovery,  will  not  require  a  re- 
versal upon  the  ground  that  the  jury  might 
infer  therefrom  that  a  verdict  up  to  that 
amount  would  be  proper,  where  the  verdict 
was  for  $3,000,  a  reasonable  amount  under 
the  circumstances.  McGovcrn  v.  Interurban 
R.  Co.  13:  476,  111  N.  W.  412,  136  Iowa,  13. 

1367.  A  reviewing  court  will  not  reverse 
a  judgment  for  error  in  an  instruction  in  an 
action  by  a  minor  to  recover  damages  for 
personal  injuries,  which  does  not  expressly 
deny  a  recovery  for  reduced  earning  capaci- 
ty during  minority,  to  which  no  exception 
was  taken  at  the  time,  although  the  statute 
permits  the  assignment  of  errors  upon  the 
charge  after  judgment,  where,  from  the 
whole  instruction,  the  jury  must  have  un- 
derstood that  such  damages  could  not  be 
allowed,  they  having  been  instructed  that 
he  could  not  recover  for  lost  time.  Braasch 
V.  Michigan  Stove  Co.  20:  500,  118  N.  W. 
366,  153  Mich.  652. 

1368.  Instructing  a  jury  to  allow  damages 
for  pain  suffered  by  one  killed  by  another's 
negligence,  if  any  is  shown  by  the  record, 
is  not  reversible  error,  although  the  evi- 
dence shows  instant  death,  since  evidence 
of  pain  being  absent,  it  must  be  presumed 
that  the  jury  did  not  allow  anything  for  it. 
St.  Louis  &  S.  F.  R.  Co.  v.  Moore,  39:  978, 
58  So.  471,  101  Miss.  768. 

1369.  In  an  action  by  a  wife  for  the  wrong- 
ful death  of  her  husband,  a  statement  in 
the  charge  that  the  jury  might  consider 
the  loss  by  the  plaintiff  of  the  society,  aid, 
and  comfort  of  her  husband,  is  not  preju- 
dicial, where  in  the  same  instruction,  both 
before  and  after  these  words,  the  jury  are 
expressly  told  that  the  allowance  should  be 
for  such  sum  as  would  compensate  the 
plaintiff  for  her  pecuniary  loss,  and  the 
amount  awarded  by  the  jury  is  moderate. 
Harbert  v.  Kansas  City  Elevated  K.  Co. 
50:  850,  138  Pac.  641,  91  Kan.  605. 
Punitive   damages. 

1370.  An  instruction  that  the  jury  may 
award  punitive  damages  is  not  prejudicial 
where  the  smallness  of  the  verdict  rendered 
does  not  indicate  that  the  jury  gave  any 
punitive  damages.  Lindsay  v.  Oreeon  Short 
Line  R.  Co.  12:  184,  90  Pac.  984,  13  Idaho, 
477. 

1371.  Error  of  the  trial  court  in  intimating 


APPEAL  AND  ERROR,  VII.  m,  4. 


147 


that,  under  certain  conditions,  the  jury 
"ought"  to  award  punitive  damages  on  ac- 
count of  plaintiff's  ejection  from  the  de- 
fendant's train,  cannot  be  held  harmless  on 
appeal  upon  the  theory  that  the  verdict,  be- 
ing for  only  $400,  did  not  include  exemplary 
damages,  although,  if  plaintiff  sustained 
the  physical  injuries  to  the  extent  claimed 
by  him,  the  verdict  would  seem  to  give  him 
compensation  only,  where  there  was  a  dis- 
pute as  to  the  extent  of  his  injuries,  the 
defendant  contending  that  he  was  not  in- 
jured at  all  by  the  ejection,  but  that  his  in- 
juries if  any  were  sustained,  resulted  from 
other  causes,  and  probably  after  he  left  the 
train.  Louisville  &  N.  R.  Co.  v.  Cottengim, 
13:  624,  104  S.  W.  280,  31  Ky.  L.  Rep.  871. 

(4r)   As  to  witnesses. 

(See    also    same   heading   in   Digest   L.R.A 
1-10.) 

Instructions  as  to  credibility  of  witnesses, 
see  Tbial,  958-964. 

1372.  It  is  not  reversible  error  to  instruct 
in  the  language  designated  by  the  statute, 
that  a  witness  false  in  one  part  of  his  tes 
timony  is  to  be  distrusted  in  others,  where 
no  request  is  made  to  limit  the  rule  to  testi- 
mony wilfully  false.  Simpson  v.  Miller, 
29:  680,  110  Pac.  485,  57  Or.  61.  (Annotated) 

1373.  An  erroneous  instruction  permitting 
the  jury  to  disregard  the  entire  testimony 
of  a  witness  who  has  testified  wilfully  and 
deliberately  false  does  not  require  a  reversal 
of  conviction  where  defendant  introduced 
practically  no  testimony  of  a  substantial 
character  to  establish  a  defense.  State  v. 
Fuller,  8:  762,  85  Pac.  369,  34  Mont.  12. 

1374.  An  Instruction  in  a  bastardy  case, 
that  it  is  to  be  taken  for  granted  that  a 
witness  speaks  the  truth  on  the  stand,  and 
consequently  that  the  complaining  witness 
teljs  the  truth,  unless  the  force  of  surround- 
ing circumstances  and  the  attendant  facts 
are  such  as  to  compel  the  belief  in  the 
minds  of  the  jury  that  falsehood  instead 
of  truth  has  been  spoken, — constitutes  re- 
versible error,  in  that  it  states  a  presump- 
tion which  does  not  exist  in  law,  and  lays 
down  an  improper  rule  as  to  the  weight  of 
evidence  required  on  the  issue  of  the  truth 
of  the  witness's  testimony.  State  v.  Hal- 
vorson,  14:  947,  114  N.  W,  957,  103  Minn. 
265.  (Annotated) 

1375.  It  is  error  for  the  court  to  instruct 
the  jury  that  they  might  consider  the  fail- 
ure of  plaintiff  in  a  libel  case  to  appear  as  a 
witness,  as  raising  an  inference  against 
him,  if  he  was  beyond  the  seas  and  there 
was  nothing  in  the  pleadings  or  evidence 
which  called  for  any  explanation  or  contra- 
diction on  his  part.  Astruc  v.  Star  Co.  40: 
79,  193  Fed.  631,  113  C.  C.  A.  499. 

1376.  It  is  error  to  single  out  the  defend- 
ant in  a  criminal  case,  and  instruct  the 
jury  specially  upon  his  credibility  as  a 
witness.  Culpepper  v.  State,  31:  ii65,  111 
Pac.  679,  4  Okla.  Crim.  Rep.  103. 
Dieest  1-52  L.R.A.(N.S.) 


1377.  It  is  error  to  charge  the  jury  in  a 
criminal  case  that  the  fact  that  a  witness 
for  defendant  was  jointly  indicted,  but  not 
yet  tried,  for  the  same  offense  with  which 
defendant  is  charged,  may  be  considered  in 
determining  his  credibilitv.  State  v.  Mintz, 
43:146,  150  S.  W.  1042,  245  Mo.  540. 

(Annotated) 

(5)    Upon  facts  and  evidence. 

(See   also    same    heading   in  Digest   L.R.A. 
1-10.) 

Instructions  on,  generally,  see  Trial,  III.  d. 

1378.  An  instruction  that,  if  the  weight 
of  all  the  evidence  tending  to  prove  a  fact 
is  greater  than  that  of  all  the  evidence 
tending  to  disprove  it,  then  it  is  said  to  be 
proved  by  a  preponderance  of  the  evidence, 
is  not  reversible  error,  if  the  jury  are  also 
told  that  to  recover  plaintiff  must  intro- 
duce that  degree  of  proof  that  produces 
conviction  in  the  unprejudiced  mind.  Ergo 
V.  Merced  Falls  Gas  &  Electric  Co.  41 :  79, 
119  Pac.  101,  161  Cal.  334. 

1379.  Charging  that,  if  the  evidence  is 
believed,  the  jury  must  find  that  the  alle- 
gations of  the  complaint  are  true,  is  rever- 
sible error  where  the  action  is  for  breach 
of  contract,  which  is  alleged  to  have  been 
actuated  by  malice  and  bad  faith,  where 
there  is  no  evidence  to  support  such  charge. 
Pullman  Co.  v.  Krauss,  4:  103,  40  So.  398, 
145  Ala.  395. 

1380.  In  an  action  on  a  promissory  note, 
where  a  plea  of  non  est  factum  Is  set  up, 
an  instruction  by  the  court,  in  deciding 
upon  the  sufficiency  of  the  extrinsic  evi- 
dence of  the  execution  of  the  instrument  to 
lay  a  foundation  for  its  admission,  that 
the  court  admits  the  note  in  evidence,  but 
that  its  execution  is  still  a  question  of  fact 
for  the  jury,  does  not  require  a  new  trial. 
Patton  V.  Bank  of  La  Fayette,  5:  592,  53 
S.  E.  664,  124  Ga.  965. 

1381.  Error  in  charging  that  proof  of  loss 
was  sufficient  under  the  terms  of  the  in- 
surance policy  is  harmless,  where  it  ap- 
pears from  uncontradicted  evidence  that 
proof  of  loss  had  been  waived.  St.  Paul 
F.  &  M.  Ins.  Co.  V.  Mittendorf,  28:  651,  104 
Pac.  354,  24  Okla.  651. 

1382.  It  is  not  reversible  error  as  a  com- 
ment on  evidence,  for  the  court  to  instruct 
the  jury  not  to  waste  time  upon  a  denial 
in  the  pleadings  of  proper  presentation  of 
claim  in  an  action  to  hold  a  municipality 
liable  for  negligent  injury,  where  proper 
presentation  of  the  claim  is  not  denied  at 
the  trial  and  a  copy  of  the  claim  is  in  evi- 
dence before  the  jury.  Hewitt  v.  Seattle, 
32:  632,  113  Pac.  1084,  62  Wash.  377. 

1383.  In  an  action  against  two  carriers 
for  damages,  where  it  appears  that  each 
has  been  guilty  of  separate  acts  of  negli- 
gence, and  that  plaintiff  has  sustained 
damages,  but  there  is  an  issue  of  fact  as 
lo  which  carrier's  negligence  was  the  proxi- 
mate cause  of  the  injury,  and  where  such 


148 


APPEAL  AND  ERROR,  VII.  m,  4. 


fact  can  be  determined  only  from  the  evi- 
dence and  circumstances  of  the  case,  an 
instruction  which  takes  such  fact  from 
the  iury  is  erroneous.  Atcliison,  T.  &  S. 
F.  R.  Co.  V.  St.  Louis  &  S.  F.  R.  Co. 
48:  509,  135  Pac.  353,  41  Okla.  80. 
Assuming  facts. 

Instructions   assuming   facts   generally,   see 
Trial,  968-971. 

1384.  It  is  error  in  an  action  to  hold  a 
landlord  liable  for  injury  to  a  tenant  by 
forcing  formaldehyde  into  his  room  to  eject 
him  therefrom,  to  instruct  the  jury  as  to  the 
measure  of  liability  in  case  it  merely  ag- 
gravated an  existing  condition  in  the  tenant, 
if  there  is  no  evidence  that  such  a  condition 
did  exist.  Saros  v.  Avenue  Theater  Co.  42: 
392,  137  N.  W.  659,  172  Mich.  238. 
Burden  of  proof. 

Instructions  as  to  generally,  see  Tbial,  942, 
943. 

1385.  An  instruction  in  an  action  on  an 
accident  insurance  policy  which  had  been 
found  in  insured's  safe,  fully  signed,  and 
dated  some  two  months  before  his  death, 
that  under  a  statute  providing  that  every 
written  instrument  purporting  to  have  been 
signed  or  executed  by  any  person  shall  be 
proof  that  it  was  so  signed  or  executed,  un- 
til such  person  shall  deny  the  signature  or 
execution  of  the  same  by  his  oath  or  affida- 
vit, the  burden  was  upon  the  defendant  to 
disprove  by  a  preponderance  of  evidence  the 
full  execution  of  the  contract,  is  at  least 
not  prejudicial  error,  where  the  genuineness 
of  the  signature  is  admitted.  Gardner  v. 
United  Surety  Co.  26:  1004,  125  N.  W.  264, 
110  Minn.   291. 

1386.  A  ruling  that  defendant  in  an  action 
for  damages  for  performing  an  unauthor- 
ized surgical  operation  upon  a  married 
woman  has  the  burden  of  showing  leave  and 
license,  notwithstanding  the  declaration 
avers  want  of  consent  by  herself  "or  anyone 
authorized  to  act  for  her,"  to  which  defend- 
ant pleaded  leave  and  license,  which  was 
denied  by  plaintiff,  is  harmless,  if  error, 
where  it  is  shown  that  plaintiff  herself  did 
not  consent,  and  evidence  of  the  conduct  of 
her  husband,  the  only  one  claimed  to  be  au- 
thorized to  consent  for  her,  tends  to  neg- 
ative consent  on  his  part.  Pratt  v.  Davis, 
7:  609,  79  N.  E.  562,  224  111.  300. 

1387.  An  instruction  to  the  jury  in  an  ac- 
tion to  foreclose  a  security  deed  as  an 
equitable  mortgage,  where  the  defense  in- 
terposed is  usury,  "that  the  presumption  of 
law  is  against  usury,  and  the  burden  would 
then  be  upon  the  defendant  in  this  case, 
who  sets  up  usury  as  a  defense,  to  estab- 
lish the  existence  of  usury  in  the  contract, 
to  your  satisfaction,"  while  not  entirely 
apt  or  exact  in  expression,  does  not  require 
a  reversal  where,  when  taken  in  connection 
with  the  entire  charge,  it  did  not  lead  the 
jury  to  believe  that  there  was  any  conclu- 
sive presumption  against  usury,  but  prac- 
tically informed  them  that,  when  a  deed  to 
secure  a  debt  is  apparently  regular  and 
lawful,  and  does  not  disclose  any  usury  on 
its  face,  and  the  defendant  seeks  to  have 
it  declared  void  by  setting  up  that  it  is  in- 
Digest  1-52  I..R.A.(N.S.) 


fected  with  usury,  such  is  an  affirmative 
plea,  and  the  burden  of  establishing  it 
would  rest  upon  the  defendant.  Purser  v, 
Thompson,  22:  571,  64  S.  E.  75,  132  Ga.  280. 
Amount   of   evidence   necessary. 

1388.  An  instruction  to  the  jury,  in  a 
civil  case,  that  a  certain  theory  of  the  case 
must  be  proven  "to  your  satisfaction,"  with- 
out adding  specifically  that  a  preponderance 
of  evidence  would  suffice  for  that  purpose, 
and  that,  "in  all  civil  cases,  the  preponde- 
rance of  testimony  is  considered  sutlicient 
to  produce  mental  conviction,"  in  the  ab- 
sence of  any  request  for  additional  instruc- 
tions, does  not  constitute  error  requiring 
a  reversal.  Purser  v.  Thompson,  22:  571, 
64  S.  E.  75,  132  Ga.  280. 

Criminal  cases. 

Instructions    as    to,    generally,    see    Trial, 

940,  941,  943,  947-953,  958-963,  972. 
See  also  supra,  1325. 

1389.  Dying  declarations,  being  in  their 
nature  secondary  evidence  and  subject  to 
many  infirmities,  are  not  ordinarily  en- 
titled to  the  same  weight  or  credence  as 
testimony  of  living  witnesses  under  oath 
and  subject  to  cross-examination,  the  ques- 
tion of  weight  being  one  for  the  jury,  and 
it  is  error  to  instruct  the  jury  that  such 
evidence  is  of  no  more  weight  than  if  the 
deceased  were  present  and  testifying,  be- 
cause such  instruction  is  calculated  to  lead 
the  jury  to  consider  that  dying  declara- 
tions are  entitled  to  the  same  weight  as  the 
testimony  of  living  witnesses  under  oath, 
and  subject  to  cross-examination.  State  v. 
Valencia,  52:  152,  140  Pac.  1119,  —  N.  M. 

1390.  An  instruction  to  the  jury  upon  the 
trial  of  one  charged  with  robbery,  to  the 
effect  that  the  presumption  of  innocence  is 
not  evidence  and  does  not  partake  of  the 
nature  of  evidence  and  only  remains  with 
the  defendant  until  it  is  overcome  by  com- 
petent evidence  which  convinces  the  minds 
of  the  jurors  of  the  defendant's  guilt  be- 
yond a  reasonable  doubt,  is  error.  Mona- 
ghan  V.  State,  46:  1149,  134  Pac.  77,  10 
Okla.  Crim.  Rep.  89. 

1391.  An  instruction  in  a  criminal  case, 
defining  the  term  "reasonable  doubt"  as  a 
doubt  that  has  a  reason  for  it,  or  as  a 
doubt  the  jury  can  give  a  reason  for,  is 
erroneous,  and  ground  for  reversing  a  judg- 
ment of  conviction.  Abbott  v.  Territory, 
16:  260,  94  Pac.  179,  1  Okla.  Crim.  Rep.  "l, 
20   Okla.   119.  (Annotated) 

1392.  Where  a  jury  has  been  charged  to 
convict  only  in  case  they  are  convinced  of 
guilt  beyond  a  reasonable  doubt,  it  is  not 
prejudicial  error  to  instruct  further  that 
cases  are  to  be  decided  upon  the  weight  of 
evidence  and  not  by  counting  witnesses,  and 
that  a  single  witness  may  be  more  satis- 
factory than  a  half  dozen  who  contradict 
him.  Hack  v.  State,  45:  664,  124  N.  W.  492, 
141  Wis.  346. 

1393.  Charging  the  jury  that  they  were 
bound  to  convict  if  they  believed  defendant's 
testimony  is  not  reversible  error  if  such 
testimony  shows  him  to  have  been  guilty 
of  the  crime  charged.  State  v.  Donovan, 
36:  167,  132  N.  W.  698,  28  S.  D.  136. 


APPEAL  AND  ERROR,  VII.  m,  4. 


149 


1394.  Failure  to  instruct  that  the  state, 
when  introducing  an  alleged  confession  of 
guilt,  is  bound  by  exculpatory  matter  there- 
in unless  it  is  shown  to  be  false,  is  not  re- 
versible error  where  other  inculpatory  evi- 
dence is  introduced.  Loan  v.  State,  43;  844, 
153  S.  W.  305,  —  Tex.  Crim.  Rep.  — . 

1395.  A  conviction  will  not  be  reversed  be- 
cause tlie  jury  were  instructed  tiiat  tlie 
testimony  of  an  accomplice  must  tend  to 
show  guilt,  where  the  testimony  absolutely 
shows  the  guilt  if  the  jury  believes  it.  Thorp 
V.  State,  29:  421,  129  S.  W.  607,  59  Tex. 
Crim.  Rep.  517. 

b.  Failure  or  refusal  to  instruct. 

(See   also   same   heading   in   Digest   L.R.A. 
1-70.) 

For  refusal  to  instruct,  generally,  see  Trial, 

III.  b. 
On  what  matter  instructions  are  necessary, 

see  Trial,  III.  c. 
See  also  supra,  857,  1275-1277,  3279. 

1396.  Failure  to  instruct  upon  material 
matters  within  the  issues  is  error.  Allis- 
Chalmers  Co.  v.  Atlantic,  52:  561,  144  N. 
W.  346,  164  Iowa,  8. 

1397.  Refusing  an  instruction  not  ma- 
terial to  the  issues  is  not  error.  New  York, 
C.  &  St.  L.  R.  Co.  V.  Roper,  36:  952,  96  N. 
E.  468,  176  Ind.  497. 

1398.  It  is  not  error  to  refuse  tendered  in- 
structions which  are  not  applicable  to  the 
facts  in  the  case.  Denver  City  Tramway 
Co.  V.  Hills,  36:  213,  116  Pac.  125,  50  Colo. 
328. 

1399.  It  is  not  prejudicial  error  to  refuse 
an  instruction  which  is  not  within  the  is- 
sues presented  by  the  pleadings.  Darda- 
nelle  Pontoon  Bridge  &  Turnp.  Co.  v. 
Croom,  30:  360,  129  S.  W.  280,  95  Ark.  284. 

1400.  It  is  not  reversible  error  to  refuse  to 
instruct  the  jury  that  plaintiff  cannot  re- 
cover in  an  action  unless  they  find  certain 
facts,  if  the  facts  alleged  to  be  necessary 
were  actually  found.  New  York,  C.  &  St. 
L.  R.  Co.  V.  Roper,  36:  952,  96  N.  E.  468, 
176  Ind.  497. 

1401.  It  is  not  reversible  error  to  refuse 
an  instruction  when  one  given  by  the  court 
at  its  own  instance  is  fully  as  favorable  to 
the  complaining  party  as  the  one  refused. 
New  York,  C.  &  St.  L.  R.  Co.  v.  Roper,  36: 
952,  96  N.  E.  468,  176  Ind.  497. 

1402.  Refusal  to  give  an  instruction  to  cor- 
rect one  which  is  subject  to  criticism  is 
not  reversible  error  where  it  is  no  more 
persuasive  for  that  purpose  than  some 
which  were  actually  given  by  the  court. 
International  Harvester  Co.  v.  Iowa  Hard- 
ware Co.  29:  272,  122  N.  W.  951,  146  Iowa, 
172. 

1403.  The  refusal  to  charge  the  jury  "just 
as  requested"  does  not  constitute  reversible 
error.  Exchange  Nat.  Bank  v.  Henderson, 
51:  549,  77  S.  E.  36,  139  Ga.  260. 

1404.  Refusal  to  give  requested  instruc- 
tions is  not  error  where  the  court  has  fully 
Digest   1-52  L.R.A.(N.S.) 


covered  the  question  in  its  general  charge. 
State  V.  Larkin,  46:  13,  157  S.  W.  600,  250 
Mo.  218. 

1405.  Refusal  of  a  requested  instruction 
is  not  prejudicial  error  if  the  principle  in- 
volved was  embodied  in  instructions  given. 
Miller  v.  Northern  P.  R.  Co.  48:  700,  135 
Pac.  845,  24  Idaho,  5G7. 

1406.  Although  an  instruction  correctly 
stating  the  law  applicable  to  a  case  under 
the  issues  as  framed  is  requested,  refused, 
and  exceptions  saved,  the  same  will  not 
constitute  reversible  error  if  suck  instruc- 
tion is  fairly  and  reasonably  corvered  by 
other  instructions  given.  Curtis  &  Gartside 
Co.  V.  Pribyl,  49:  471,  134  Pac.  71,  38  Okla. 
511. 

1407.  Where  the  trial  court  has  fairly  in- 
structed the  jury  upon  the  defendant's 
theory  of  his  case,  a  refusal  of  other  in- 
structions requested  by  the  defendant  is  not 
reversible  error.  Stehr  v.  State,  45:  559, 
139  N.  W.  676,  142  N.  W.  670,  92  Neb.  755. 

1408.  Refusal  of  a  general  and  abstract 
instruction  is  not  reversible  error.  Spears 
V.  People,  4:  402,  77  N.  E.  112,  220  111.  72. 

1409.  The  defendant  is  not  prejudiced  by 
the  court's  failure  to  instruct  as  to  the  law 
upon  a  matter  not  available  as  a  defense. 
Schwarzschild  &  S.  Co.  v.  Weeks,  4:  515,  83 
Pac.  406,  72  Kan.  190. 

1410.  Refusal  to  affirm  requests  to  charge 
is  not  reversible  error  if  the  points  are  suf- 
ficiently covered  in  the  general  charge. 
Hufnagle  v.  Del-aware  &  Hudson  Co.  40: 
982,  76  Atl.  205,  227  Pa.  476. 

1411.  A  qualified  affirmance,  because  of 
mistake  as  to  its  import,  of  a  requested  in- 
struction, is  not  prejudicial  error,  where 
the  requested  proposition  is  unqualifiedly 
affirmed  in  response  to  other  requests. 
Bracken  v.  Pennsylvania  R.  Co.  34:  790,  71 

,Atl.  926,  222  Pa.  410. 

1412.  A  judgment  against  a  municipality 
for  injury  caused  to  a  traveler  through  a 
defect  in  a  highway  will  not  be  reversed 
because  of  failure  to  give  an  instruction 
that  no  recovery  can  be  had  if  the  negli- 
gence of  plaintiff's  driver  contributed  to 
the  injury,  where  the  jury  has  found  that 
the  driver  was  not  negligent.  Feeley  v. 
Melrose,  27:  1156,  91  N.  E.  306,  205  Mass. 
329. 

1413.  A  general  verdict  for  plaintiff  can- 
not be  sustained  in  an  action  against  a 
street  car  company  for  injury  to  one  at- 
tempting to  become  a  passenger  on  its  car, 
where  there  are  two  counts  in  the  declara- 
tion, one  charging  simple  and  the  other  gross 
negligence,  both  of  which  are  good,  and  the 
court,  although  its  attention  is  called  to 
the  matter,  fails  to  point  out  the  degree  of 
delinquency  which  is  necessary  to  support 
a  recovery  under  the  latter  count.  Yancy 
V.  Boston  Elevated  R.  Co.  26:  1217,  91  N.  E. 
202,  205  Mass.  162. 

1414.  Refusal  to  charge  that  one  cannot  be 
said  to  be  guilty  of  wilfulness  or  wanton- 
ness unless  he  has  been  guilty  of  miscon- 
duct and  malice,  or  of  some  act  from  which 
misconduct  and  malice  ought  to  be  inferred, 
in  an  action  for  punitive  damages  for  the 


150 


APPEAL  AND  ERROR,  VII.  m,  4. 


killing  of  a  passenger,  is  not  prejudicial 
error  where  the  court  instructed  that  puni- 
tive damages  cannot  be  recovered  unless 
there  was  wantonness,  recklessness,  or  wil- 
fulness, since  each  of  these  words  embodies 
the  element  of  malice.  Hull  v.  Seaboard  Air 
Line  R.  Co.  lo:  1213,  57  S.  E.  28,  76  S.  C. 
278. 

1415.  When  the  recovery  for  the  death  of 
a  minor  child  must,  under  the  statutes,  be 
for  the  sole  benefit  of  the  father,  who  has 
abandoned  his  family,  it  is  reversible  error 
to  permiii  the  jury  to  infer  that  the  mother, 
to  whoserrelief  in  supporting  the  family  the 
deceased  contributed,  might  share  in  the 
division  of  the  recovery,  and  to  refuse  to 
charge  the  jury  that  no  part  of  the  recovery 
could  be  for  her  benefit.  Swift  &  Co.  v. 
Johnson,  i:  1161,  138  Fed.  867,  71  C.  C.  A. 
619. 

1416.  Refusal  to  instruct  the  jury  in  an  ac- 
tion for  damages  for  the  maintenance  of  a 
nuisance,  that  plaintiff  could  not  recover 
for  inconvenience  to  members  of  her  fam- 
ily, is  not  prejudicial,  where  the  only 
evidence  upon  that  subject  was  for  the  pur- 
pose of  showing  the  existence  of  the  nui- 
sance. New  York  Continental  Jewell  Fil- 
tration Co.  V.  Wynkoop,  11:  542,  29  App. 
D.  C.   594. 

1417.  The  refusal  to  instruct  the  jury  in 
an  action  upon  a  promissory  note,  wherein 
liability  is  denied  by  the  maker  upon  the 
ground  that  the  note  has  been  altered  by  the 
addition  of  a  clause  making  it  bear  interest 
at  the  rate  of  5  per  cent  per  annum  from 
maturity,  whereas,  at  the  time  of  its  exe- 
cution, it  made  no  mention  of  interest,  that 
the  note  would,  if  executed  without  mention 
of  the  interest,  draw  the  statutory  rate  of 
6  per  cent  per  annum  after  maturity,  is 
material  error.  New  York  L.  Ins.  Co.  v. 
Martindale,  21:  1045,  88  Pac.  559,  75  Kan, 
142. 

1418.  A  defendant  whose  negligence  is  al- 
leged to  have  contributed  to  an  injury  for 
which  action  is  brought  cannot  complain 
of  a  refusal  to  instruct  as  to  particular  al- 
leged negligent  acts  of  his  codefendant,  if 
the  jury  finds  the  codefendant  to  be  neg- 
ligent, and  his  own  liability  must  rest  on 
some  negligent  act  of  his  own.  Jaquith  v. 
Worden,  48:  827,  132  Pac.  33,  73  Wash.  349. 

1419.  A  judgment  of  conviction  in  a  crimi- 
inal  case  will  not  be  reversed  for  the  er- 
roneous refusal  of  the  court  to  give  certain 
instructions,  where  it  appears  that,  if  the 
instructions  requested  had  been  given,  the 
verdict  would  have  been  the  same.  Hendrix 
v.  State,  43:  546,  129  Pac.  78,  8  Okla.  Grim. 
Rep.  530. 

1420.  In  a  prosecution  for  burglary,  the 
accused  having  admitted  that,  fifteen  min- 
utes prior  to  the  time  a  person  was  de- 
tected attempting  to  rifie  a  safe  in  the 
office  of  a*  mill  building,  he  was  in  close 
proximity  thereto,  and  one  witness  having 
identified  him  as  the  guilty  party,  it  is  not 
prejudicial  error  for  the  court,  after  it  has 
fully  instructed  as  to  the  burden  of  proof, 
the  presumption  of  innocence,  and  as  to 
every  element  essential  to  constitute  the 
Digest   1-52  L.R.A.(N.S.) 


crime,  and  that,  if  the  proof  is  not  beyond 
all  reasonable  doubt  as  to  all  of  those  ele- 
ments, the  jury  should  acquit,  to  refuse 
specifically  to  instruct  concerning  the  de- 
fense of  an  alibi,  although  the  accused  tes- 
tified that  at  the  precise  time  the  burglary 
was  committed  he  was  about  20  rods  dis- 
tant from  the  mill  building.  Schultz  v. 
State,  34:  243,   130  N.  W.   105,  R8  Neb.  613. 

1421.  Failure  to  charge  upon  the  effect  of 
absence  of  outcry  is  immaterial  in  a  trial 
for  assault  with  intent  to  rape,  where  the 
victim  was  in  a  state  of  insensibility  pro- 
duced by  intoxication.  Quinn  v.  State,  46: 
422,  142  N.  W.  510,  153  Wis.  573. 

1422.  Omission  to  instruct  the  jury  that, 
to  be  guilty  of  rape  by  intercourse  with  an 
intoxicated  woman,  accused  must  have 
knowledge  of  her  intoxicated  condition,  is 
not  prejudicial  error  where  the  evidence 
discloses  that  he  himself  had  brought  about 
her  intoxicated  condition.  Quinn  v.  State, 
46:  422,  142  N.  W.  510,  153  Wis.  573. 

1423.  The  failure  of  the  court,  on  a  trial 
for  homicide,  to  give  a  proper  written  re- 
quest fully  embodying  the  law  applicable  to 
the  sole  theory  under  which  the  accused  was 
claimed  to  be  responsible  for  the  murder  of 
the  deceased,  is  ground  for  a  new  trial. 
Brooks  V.  State,  12:  88g,  57  S.  E.  483,  128 
Ga.  261. 

1424.  Where  the  attorney  for  the  state 
in  a  prosecution  for  homicide  was  erron- 
eously permitted  to  interrogate  witnesses 
for  the  state  as  to  whether  or  not  they  had 
an  interview  with  the  attorney  for  the 
defendant,  and,  upon  an  affirmative  reply, 
whether  or  not  they  had  not  violated  his 
instructions  not  to  talk  to  anyone  about 
the  case  without  his  permission,  it  is  error 
to  refuse  a  request  to  charge  that  the  at- 
torney for  the  state  had  no  authority  to 
make  any  such  request  or  enforce  obedience 
to  it  so  far  as  it  affected  counsel  for  the 
defendant;  and  that  it  is  the  right  of  coun- 
sel for  a  defendant  to  ascertain  by  proper 
and  legitimate  means  the  nature,  strength, 
and  credibility  of  testimony  to  be  offered  in 
the  case,  so  long  as  they  do  not  by  word 
or  act  attempt  in  any  manner  to  influence 
a  witness  to  conceal,  modify,  or  change  his 
testimony  from  that  which  is  absolutely 
true.  State  v.  Cooley,  52:  230,  140  Pac. 
1111,  —  N.  M.  — . 

Wliere  no  instriiction  is  requested. 
Effect  of  failure  to  request  generally,   see 

Tbiajl,  843-846. 
See  also  supra,  1355. 

1425.  Mere  failure  to  charge  a  jury  upon  a 
particular  proposition  of  law  is  not  re- 
versible error,  unless  a  suitable  instructioa 
has  been  tendered.  Maxson  v.  J.  I.  Case 
Threshing  Mach.  Co,  16:  963,  116  N.  W.  281, 
81  Neb.  546. 

1426.  Mere  failure  to  instruct  the  jury  on 
a  particular  issue  is  not  reversible  error, 
unless  a  specific  instruction,  good  in  point 
of  law,  covering  the  omission,  is  requested. 
Duncan  v.  National  Mut.  F.  Ins.  Co.  20:  340^ 
98  Pac.  634.  44  Colo.  472. 

1427.  Failure  to  instruct  the  jury  on  the 
question  of  damages  in  an  action  for  wrongs 


APPEAL  AND  ERROR,  VII.  m,  4. 


151 


fully  expelling  a  member  of  a  fraternal 
benefit  society  is  not  ground  for  reversal  if 
no  instructions  were  asked  at  the  trial,  and 
the  damages  awarded  are  well  within  what 
might  properly  be  assessed.  Independent 
Order  of  S.  &  D.  of  J.  of  A.  v.  Wilkes, 
52:  817,  53  So.  493,  98  Miss.  179. 

1428.  It  is  not  reversible  error  to  fail  to 
require  the  separation  of  compensatory  and 
punitive  damages  in  the  verdict,  in  the 
absence  of  a  request  for  such  action.  Chesa- 
peake &  0.  R.  Co.  v.  Johns,  50:  853,  159  S. 
W.  822,  155  Ky.  264. 

1429.  The  failure  of  the  court  to  define  the 
term  "seduction"  as  used  in  an  instruction 
to  the  jury  in  an  action  for  breach  of  prom- 
ise to  marry,  that  the  jury  may  take  into 
account  the  plaintiff's  seduction,  is  not  er- 
ror in  the  absence  of  a  request  for  an  in- 
struction on  each  subject.  Dalrymple  v. 
Green,  43:  972,  129  Pac.  1145,  88  Kan.  673. 

1430.  In  the  absence  of  a  request  in  a 
murder  trial  for  a  definition  of  the  words 
"in  the  heat  of  passion,"  the  omission  to 
give  one  is  not  a  ground  for  reversal.  State 
V.  Buffington,  4:  154,  81  Pac.  465,  71  Kan. 
804. 

1431.  Error  cannot  be  predicated  upon  an 
omission  to  give  a  special  instruction  which 
was  not  requested  upon  the  trial  of  a  crim- 
inal charge,  where  the  court  presented  the 
principal  questions  involved  to  the  jury. 
State  v.  Shaw,  21:  27,  100  Pac.  78,  79  Kan. 
396. 

1432.  It  is  the  duty  of  the  trial  judge,  par- 
ticularly in  criminal  actions,  to  instruct  the 
jury  as  to  the  rules  of  law  governing  the 
disposition  of  the  cause,  whethei  he  is  re- 
quested to  do  so  or  not;  and,  if  a  charge  to 
a  jury,  by  omissio^i  to  instruct  on  certain 
points,  in  effect  withdraws  from  their  con- 
sideration an  essential  issue  of  tlie  case,  it 
is  erroneous.  Young  v.  State,  2:  66,  104  N. 
W.  867,  74  Neb.  346. 

As  to  facts  or  evidence. 

1433.  It  is  error  to  refuse  a  requested  in- 
struction pointing  out  particular  phases  of 
the  evidence,  although  an  instruction  has 
been  given  dealing  in  general  terms  with 
the  point  involved.  Penny  v.  Atlantic  C. 
L.  R.  Co.  32:  1209,  69  S.  E.  238,  153  N.  C. 
296. 

1434.  Refusal  to  instruct  the  jury  in  an 
action  on  a  life  insurance  policy,  the  de- 
fense to  which  is  suicide,  that  the  proofs  of 
loss  offered  in  evidence  to  show  that  they 
were  furnished  are  not  evidence  of  the 
facts  therein  stated,  is  reversible  error. 
Metropolitan  L.  Ins.  Co.  v.  People's  Trust 
Co.  41:  285,  98  N.  E.  513.  117  Ind.  578. 

1435.  Refusal  to  charge  the  jury,  as  re- 
quested, that  one  seeking  damages  for  per- 
sonal injuries  could  not  recover  unless  the 
specific  act  of  negligence  relied  on  in  the 
coiuplaint  was  estaolisl  ed  by  a  preponder- 
ance of  the  evidence,  is  reversible  error, 
where  the  gene  al  charge  contains  no  in- 
structions on  that  point,  merely  stating 
that  the  plaintiff  must  prove  by  fair  pre- 
ponderance of  evidence  that  the  accident 
was  caused  by  defendant's  negligence,  and 
the  evidence  is  conflicting  as  to  whether  or 
Digest  1-52  I^R.A.(N.S.) 


not  the  injury  was  caused  by  the  negligence 
charged.  Dambmann  v.  Metropolitan  Street 
R.  Co.  2:  309,  73  N.  E.  59,  180  N.  Y.  384. 

1436.  It  is  not  reversible  error  to  refuse 
a  charge  on  circumstantial  evidence  in  a 
prosecution  for  assault  with  intent  to  rape, 
if  no  issue  in  the  case  depends  entirely  upon 
such  evidence.  Quinn  v.  State,  46:  422,  142 
N.  W.  510,  153  Wis.  573. 

1437.  Failure  to  instruct  in  a  prosecution 
for  burglary  that,  in  order  to  convict  where 
the  only  evidence  of  intent  is  circumstan- 
tial, the  circumstances  must  be  such  as  to 
exclude  every  reasonable  hypothesis  con- 
sistent with  respondent's  innocence,  is  not 
error  where  accused  had  testified  to  the 
entry  and  subsequent  larceny.  State  v. 
Lapoint,  47:  717,  88  Atl.  523,  87  Vt.  115. 
As  to  burden  of  proof. 

1438.  Failure  to  instruct  the  jury  that  the 
statutory  certificate  of  the  factory  inspect- 
or is  prima  facie  evidence  that  machinery 
was  properly  guarded  is  not  prejudicial  er- 
ror, where  the  inspector  has  testified  in  the 
case  that  the  machine  was  properly  guard- 
ed, so  that  no  issue  as  to  the  existence  of 
a  prima  facie  case  is  before  the  jury. 
Benner  v.  Wallace  Lumber  &  Mfg.  Co.  45: 
128,  105  Pac.  145,  55  Wash.  679. 


c.  Modification  of  instruction. 


(See   also    same   heading   in   Digest    L.R.A. 
1-10.) 


Modification  generally,  see  Tbial,  880. 
Sufficiency    of    compliance,    generally,    wit! 
request,  see  Tbial,  822-825. 


1439.  Prejudicial  error  is  committed 
where  the  court,  after  instructing  the  jury 
that  they  may  disregard  the  testimony  of 
any  witness  testifying  falsely,  or  give  it 
such  weight  as  they  regard  it  entitled  to, 
refuses  to  modify  the  instruction  upon  his 
attention  being  called  thereto  by  counsel, 
so  as  to  make  essential  knowledge  of  the 
falsity  of  the  matter  testified  to.  State  v. 
Sugarman,  52:  999,  148  N.  W.  4G6,  126 
Minn.   477. 


5.  Argument,    remarTcs    or   conduct    of 
counsel. 


(See   also   same   heading   in  Digest  L.R.A. 
1-10.) 


Necessity  for  exceptions  to,  see  supra,  343. 
Errors   waived   or   cured  below,   see   supra, 

815. 
As  ground  for  new  trial,  see  New  Tbial, 

12,  13. 
Matters  as  to  generally,  see  Tbial,  I.  d 


152 


APPEAL  AND  ERROR,  VII.  m,  5. 


1440.  Improper  argument  by  counsel  will 
not  require  a  reversal  if,  from  the  whele 
case,  it  is  evident  that  it  did  not  prejudice 
the  rights  of  the  complaining  party.  Pa- 
ducah  Box  &  Basket  Co.  v.  Parker,  43:179, 
136  S.  W.  1012,  143  Ky.  607. 

1441.  To  warrant  reversal  for  remarks  of 
counsel  in  his  argument  to  the  jury,  they 
must  be  prejudicial.  Pigford  v.  Norfolk 
Southern  R.  Co.  44:  865,  75  S.  E.  860,  160 
N.  C.  93. 

1442.  A  case  will  not  be  reversed  because 
of  remarks  of  counsel  in  argument  as  to 
the  effect  of  instructions  which  had  been 
given  by  the  court,  if  they  are  no  more 
than  correct  inferences  to  be  drawn  from 
the  record.  Pulaski  Gas  Light  Co.  v.  Mc- 
Clintock,  32:  825,  134  S.  W.  1189,  97  Ark. 
576. 

1443.  Remarks  of  counsel,  in  an  action  for 
personal  injuries,  as  to  the  expectancy  of 
the  injured  person  according  to  mortality 
tables,  when  no  mortality  tables  are  in 
evidence,  do  not  constitute  reversible  error, 
when  subsequently  qualified  by  counsel  and 
court,  and  the  size  of  the  verdict  does  i.ot 
indicate  that  the  jury  was  prejudiced  there- 
by. Molin  V.  Wark,  41 :  346,  129  N.  W.  383, 
113  Minn.  190. 

1444.  It  is  not  error  for  counsel,  in  argu- 
ing to  the  jury  in  an  action  to  hold  one  lia- 
ble in  damages  for  killing  another,  to  ask 
them  to  consider  what  the  life  of  decedent 
would  be  worth  to  his  widow  and  children. 
Foster  v.  Shepherd,  45:  167,  101  N.  E.  411, 
258  111.  164. 

1445.  Permitting  counsel  to  state  to  the 
jury,  in  an  action  for  charging  a  girl  with 
fornication,  that  one  guilty  of  making  such 
charge  is  not  fit  to  live  in  the  county,  is 
not  reversible  error.  Miller  v.  Nuckolls,  4: 
149,  91  S.  W,  759,  77  Ark.  64. 

1446.  It  is  not  reversible  error  for  that 
torney  to  st^te,  in  arguing  to  the  jury  in 
an  action  to  recover  damages  for  personal 
injuries,  that  defendant  paid  more  for  coun- 
sel to  defend  the  suit  than  to  remedy  the 
lack  of  safety  in  the  working  place  which 
caused  the  injury,  if  such  was  the  fact. 
Marshall  v.  Dalton  Paper  Mills,  24:  128,  74 
Atl.  108,  82  Vt.  489. 

1447.  A  statement  by  the  state's  attorney 
when  summing  up  a  criminal  case  to  the 
jury,  to  the  effect  that  to  the  knowledge 
of  the  presiding  judge  one  of  the  number 
had  been  fixed,  based  not  upon  facts  in 
evidence,  but  upon  the  judge's  statement  to 
him  that  he  had  seen  the  juror  and  a  rela- 
tive of  the  accused  in  conversation  under 
suspicious  circumstances,  an  objection  to 
which  the  judge  overrules,  is  reversible 
error.  Turpin  v.  Commonwealth,  30:  794, 
130  S.  W.  1086,  140  Ky.  294.      (Annotated) 

1448.  A  statement  by  the  prosecuting  at- 
torney in  a  rape  case,  that  unless  the  jury 
assessed  the  death  penalty,  the  people  would 
take  the  law  into  their  own  hands  in  the 
future;  that  "if  you  turn  the  defendant 
loose,  you  cannot  blame  the  people  for  tak- 
ing the  law  into  their  own  hands,"  and  that 
it  would  be  much  worse  than  convicting  an 
innocent  man,  to  turn  this  defendant  loose 
Dieest  1-52  KR.A.(N.S.) 


and  then  in  a  week  or  two  for  him  to  rape 
one  of  your  wives,  sisters,  or  daughters,  is 
reversible  error.  Hemphill  v.  State,  51: 
§14,  165  S.  W.  462,  —  Tex.  Crim.  Rep.  — . 

(Annotated ) 

1449.  Where  the  evidence  conclusively 
shows  the  guilt  of  a  defendant  of  murder, 
and  the  jury  convicts  him  only  of  man- 
slaughter, ordinarily  the  court  will  not  con- 
sider objections  to  improper  remarks  made 
by  the  county  attorney  in  his  closing  argu- 
ment to  the  jury.  Edwards  v.  State,  44: 
701,  131  Pac.  956,  9  Okla.  Crim.  Rep.  306. 
As  to  evidence,  T^itsesses,  and  facts. 
Argument  as  to,  generally,  see  Trial,  71-75. 

1450.  It  is  prejudicial  error  for  counsel 
persistently  to  continue  to  offer  evidence 
in  various  forms  which  the  court  has  ruled 
to  be  incompetent.  Thomas  v.  Township  of 
Byron,  38:  1186,  134  N.  W.  1021,  168  Mich. 
593. 

1451.  It  is  not  reversible  error  for  the 
prosecuting  attorney  to  comment  in  argu- 
ment to  the  jury  upon  the  failure  of  ac- 
cused in  a  murder  case  to  call  a  witness, 
although  it  is  a  matter  of  inference  that 
he  might  not  have  been  in  a  position  to  see 
what  occurred.  State  v.  Larkin,  46:  13,  157 
S.  W.  600,  250  Mo.  218, 

1452.  It  is  error  for  the  prosecuting  attor- 
ney in  a  criminal  case  to  ask  questions 
which,  by  insinuation  and  innunendo,  tend 
to  reflect  upon  the  moral  character  of  ac- 
cused, when  there  is  not  a  scintilla  of  tes- 
timony to  justify  them.  Bailey  v.  People, 
45:  145,  130  Pac.  832,  54  Colo.  337. 

1453.  The  persistence  of  the  prosecution  in 
attempting  to  draw  out  evidence  detrimen- 
tal to  the  character  of  accused,  notwithstand- 
ing adverse  rulings  of  the  trial  court,  and 
in  insinuating  in  the  questions  asked  that 
public  sentiment  is  strong  against  him,  is 
reversible  error.  Shipp  v.  Com.  10:  335,  99 
S.  W.  945,  124  Ky.  643. 

1454.  It  is  not  such  abuse  of  discretion  on 
the  part  of  the  trial  court  to  refrain  from 
interfering  with  remarks  by  the  prosecuting 
attorney  to  the  effect  that  accused  had  been 
drinking,  were  lying,  and  were  guilty,  so  as 
to  require  reversal,  where  there  was  evi- 
dence in  the  record  tending  to  show  that 
they  had  been  drinking.  State  v.  Davis, 
34:  295,  70  S.  E.  811,  88  S.  C.  229. 

1455.  It  is  prejudicial  misconduct  for  the 
prosecuting  attorney,  in  addressing  the  jury 
on  a  trial  for  rape,  to  urge  a  conviction  "in 
view  of  the  fact  that  you  have  before  you 
two  girls  whose  lives  have  been  ruined  by 
this  defendant,"  where  there  is  no  evidence 
in  the  record  that  the  defendant  had  ruined 
the  lives  of  two  girls,  as  stated  by  the  at- 
torney. State  v.  Nvhus,  27:  487,  124  N.  W. 
71,  19  N.  D.  326. 

1456.  A  conviction  for  obtaining  money  by 
false  pretenses  will  not  be  reversed  because 
the  prosecuting  attorney,  in  his  argument  to 
the  jury,  stated  that  the  defendant  was  com- 
mitting adultery  every  day,  where  he  was 
living  with  a  woman  not  his  wife,  and  the 
gist  of  the  argument  was  not  that  his  rela- 
tions were  such  as  the  word  used  defines,  but 
that   they  were   immoral   and   affected   the 


APPEAL  AND  ERROR,  VII.  m,  6. 


153 


credibility  of  the  accused.   People  v.  Ranney, 
19:  443,  116  N.  W.  999,  153  Mich.  293. 

1457.  It  is  not  reversible  error  for  counsel, 
in  arguing  to  the  jury,  to  state  as  a  fact 
matter  which  may  fairly  be  inferred  from 
the  evidence,  if,  in  so  doing,  he  is  not  at- 
tempting to  testify,  but  is  merely  asking  the 
jury  to  find  that  he  was  stating  what  the 
evidence  tended  to  prove.  Kambour  v. 
Boston  &  M.  R.  Co.  45:  1188,  86  Atl.  624,  — 
N.  H.  — . 

Correction  or  writlidraival. 

1458.  Statements  by  counsel  in  argument, 
of  facts  outside  the  record,  will  not  require 
reversal  if  the  admonition  of  the  court  was 
suflicient  to  cause  the  jury  to  disregard  the 
statement.  Cumberland  Teleph.  &  Teleg.  Co. 
v.  Quigley,  19:  575,  112  S.  W.  897,  129  Ky. 
788. 

1459.  That  the  court  rebuked  improper  re- 
marks by  counsel  to  the  jury  in  a  quiet 
manner  merely  is  not  reversible  error, 
where  the  objecting  party  offered  no  in- 
structions requiring  them  to  disregard  the 
remarks.  Miller  a.  Nuckolls,  4:  149,  91  S. 
W.  759,  77  Ark.  64. 

1460.  The  misconduct  of  a  prosecuting  at- 
torney in  urging,  in  his  address  to  the  jury 
on  a  trial  for  rape,  a  conviction  "in  view  of 
the  fact  that  you  have  before  you  two 
girls  whose  lives  have  been  ruined  by  this 
defendant,"  where  there  was  no  evidence  in 
the  record  that  the  defendant  had  ruined 
the  lives  of  two  girls,  is  not  rendered  non- 
prejudicial by  a  general  caution  in  the  in- 
structions to  the  jury  that  misstatements 
of  the  evidence  by  the  attorneys  should  be 
disregarded,  and  the  issue  determined  from 
the  evidence  alone.  State  v.  Nyhus,  27: 
487,   124  N.  W.  71,   19  N.  D.  326. 

6.  RemarTcs  or  conduct  of  judge. 

(See    also    same   heading   in   Digest   L.R.A. 

1-no.) 

Matters  as  to,  generally,  see  Trial,  I.  h. 
Indicating  opinion  as  to  evidence,  see  Trial, 
966. 

1461.  While  the  trial  court  has  a  wide 
discretion  in  the  conduct  of  the  trial,  it 
must  not  invade  the  province  of  the  jury 
by  making  comments,  insinuations,  or  sug- 
gestion indicative  of  belief  or  unbelief  in 
the  integrity  or  credibility  of  witnesses. 
Minneapolis  v.  Canterbury,  48:  842,  142  N. 
W.   812,   122   Minn.   301. 

1462.  It  is  reversible  error  for  the  court, 
upon  the  trial  of  a  case  and  in  the  hearing 
of  the  jury,  to  express  or  intimate  an  opin- 
ion as  to  what  has  or  has  not  been  proved 
with  reference  to  a  fact  of  vital  importance 
in  the  controversy  between  the  parties.  At- 
lantic Coast  Line  R.  Co.  v.  Powell,  9:  769, 
56  S.  E.  1006,  127  Ga.  805. 

1463.  It  is  prejudicial  error  for  the  court 
to  instruct  counsel  in  the  presence  of  the 
jury  that  it  is  not  permissible  to  manu- 
facture anything  in  the  case,  where  the  re- 
mark is  imwarranted  by  any  circumstance. 
Digest   1-52  L.R.A.(N.S.) 


Foster  v.  Shepherd,  45:  167,   101  N.  E.  411, 
258  111.  164. 

1464.  It  is  reversible  error  for  the  judge 
to  communicate  with  the  jury  otherwise 
than  as  provided  by  law,  as  by  holding  con- 
ferences with  the  foreman  not  in  open  court. 
Texas  Midland  R.  Co.  v.  Byrd,  20:  429,  115 
S.  W.  1163,  102  Tex.  263. 

1465.  It  is  reversible  error  for  a  regular 
judge,  pending  the  trial  of  a  cause  begun  and 
continued  before  a  special  judge,  du'y  elect- 
ed to  preside  in  the  absence  of  such  regular 
judge,  on  making  his  appearance  at  the  same 
term,  to  assume  jurisdiction  thereof,  pro- 
ceed with  the  trial,  and  pronounce  judgment 
therein.  State  v.  Stevenson,  19:  713,  "62  S. 
E.  688,  64  W.  Va.  392. 

1466.  It  is  prejudicial  error  for  the  court, 
after  receiving  a  prisoner's  plea  of  guilty 
of  murder  in  the  first  degree,  and  before  pro- 
nouncing judgment  thereon,  to  proceed,  in  the 
absence  of  the  prisoner,  to  examine  witnesses 
and  hear,  from  the  special  judge  who  presid- 
ed at  the  time  of  receiving  such  plea,  state- 
ments respecting  the  circumstances  and 
facts  of  the  killing,  whether  such  examina- 
tion be  for  the  personal  satisfaction  of  the 
judge  pronouncing  the  judgment  of  the 
court,  or  to  advise  him  as  to  the  character 
of  judgment  that  should  be  pronounced  on 
said  plea.  State  v.  Stevenson,  ig:  713,  62 
S.  E.  688,  64  W.  Va.  392. 

1467.  One  on  trial  for  murder  cannot  be 
prejudiced  by  an  admonition  to  an  accom- 
plice who  takes  the  stand  on  behalf  of  the 
people  that  any  statement  he  may  make 
may  be  used  against  him,  if  the  jury  are 
afterwards  told  that  he  is  testifying  under 
an  agreement  that,  if  he  lives  up  to  his 
agreement  made  with  the  state  as  to  giv- 
ing testimony,  he  will  not  be  prosecuted. 
Grant  v.  State,  42:  428,  148  S.  W.  760,  — 
Tex.  Crim.  Rep.  — . 

1468.  A  statement  of  the  judge  to  the 
jury  in  a  criminal  case  that  certain  evidence 
which  had  a  certain  tendency  could  be  con- 
sidered only  under  certain  circumstances 
is  not  reversible  error,  as  intimating  the 
opinion  of  the  judge  on  the  evidence,  where 
the  sole  purpose  of  the  statement  was  to 
identify  it  so  as  to  limit  its  application 
in  favor  of  accused.  State  v.  Dobbins,  42: 
735,  132  N.  W.  805,  152  Iowa,  632. 

1469.  It  is  not  reversible  error  for  the 
court,  in  granting  the  request  of  tlie  prose- 
cuting attorney  to  cross-examine  his  own 
witness  in  a  criminal  case,  because  he  was 
unwilling,  to  state  in  the  presence  of  the 
jury  that  he  sees  that  he  is  unwilling.  State 
V.  Ross,  42:  601,  104  Pac.  596,  106  Pac.  1022, 
55  Or.  450. 

1470.  A  promise  of  the  court  to  consider  a 
recomnjendation  by  the  jury  in  a  criminal 
case  will  vitiate  a  verdict  of  guilty,  as 
tending  to  influence  the  verdict,  although, 
because  the  maximum  penalty  must  be 
imposed  under  the  indeterminate-sentence 
law,  the  recommendation  was  of  no  utility. 
State  V.  Kernan,  40:  239,  135  N.  W.  362, 
154  Iowa,  672.  (Annotated) 

1471.  A  remark  of  the  trial  judge,  in  over- 
ruling an  objection  that  the  questions  asked 


154 


APPEAL  AND  ERROR,  VII.  m,  7. 


a  witness  were  leading,  that  he  was  only 
thirteen  years  old,  very  young,  that  such 
questions  could  be  asked  such  witnesses,  is 
not  reversible  error  as  an  unconstitutional 
comment  on  the  facts,  where  the  testimony 
as  to  his  age  does  not  conflict.  State  v. 
McDowell,  32:414,  112  Pac.  521,  61  Wash. 
398. 

1472.  Fining  and  imprisoning  a  witness  for 
refusal  to  answer  questions  is  not  rever- 
sible error  in  a  criminal  case,  on  the  theory 
that  it  indicates  to  the  jury  an  opinion  of 
guilt  on  the  part  of  the  judge.  Loan  v. 
State,  43:  844,  153  S.  W.  305,  —  Tex.  Crim. 
Rep.  — .  (Annotated) 

7.  As  to  jury;  conduct  of  trial. 

a.  In  general. 

(Bee   also   same   heading   in  Digest   L.R.A. 
1-10.) 

See  also  supra,  640. 

1473.  A  judgment  which  is  right  on  the 
law  and  facts  will  not  be  reversed  for  inter- 
vening errors  of  procedure.  Logansport  v. 
Jordan,  37:  1036,  85  N.  E.  959,  171  Ind. 
121. 

1474.  Merely  informing  the  jury,  which 
has  requested  the  testimony  of  a  witness 
to  be  read  to  it  on  Sunday,  that  the  re- 
quest will  be  complied  with  the  following 
morning,  will  not  require  a  reversal  of  the 
cause  if  the  jury  do  «ot  wait  for  the  evi- 
dence but  agree  on  a  verdict  on  Sunday. 
Auld  V.  Cathro,  32:  71,  128  N.  W.  1025,  20 
N.  D.  461. 

1475.  That  the  sheriff,  in  conducting  the 
jury  to  luncheon  by  a  convenient  and  natu- 
ral route,  passes  a  building  in  which  an 
explosion  occurred,  which  forms  the  sub- 
ject-matter of  the  action,  is  not  reversible 
error  if  the  injury  to  the  building  has  been 
repaired,  and  their  attention  is  not  called 
to  the  fact  that  the  building  is  the  one 
under  consideration.  Higgins  v.  Los  An- 
geles Gas  &  Electric  Co.  34:  717,  115  Pac. 
313,   159   Cal.   651. 

1476.  In  an  action  to  hold  a  gas  company 
liable  for  injury  to  a  building  through  the 
explosion  of  gas  which  was  alleged  to  have 
been  caused  by  the  negligent  use  of  an  elec- 
tric flash  lamp  in  searching  for  a  leak  in 
the  pipes,  it  is  not  reversible  error  t©  per- 
mit the  jury  to  take  to  their  room  a  similar 
lamp  with  which  to  experiment,  to  deter- 
mine whether  or  not  it  would  produce  a 
spark  which  would  ignite  gas,  where  de- 
fendant's liability  depends  on  negligence  in 
permitting  the  leak,  and  not  upon  the 
method  by  which  the  gas  was  ignited.  Hig- 
gins v.  Los  Angeles  Gas  &  Electric  Co.  34: 
717,    115   Pac.   313,   159   Cal.   651. 

(Annotated) 

1477.  Permitting  the  jury  in  a  homicide 
case  to  take  a  dying  declaration  which  had 
been  reduced  to  writing  and  introduced  in 
evidence,  to  their  room,  under  the  erro- 
neous belief  that  it  was  within  the  terms 
of  a  statute  providing  what  papers  shall 
Digest  1-52  I..R.A.(N.S.) 


be  allowed  to  be  so  taken,  is  reversible 
error.  Territory  v.  Eagle,  30:  391,  110  Pac. 
8G2,  15  N.  M.  609. 

1478.  Where  after  an  arraignment  and 
plea  of  not  guilty  to  an  information  for 
homicide,  an  amendment  is  allowed  to  cor- 
rect a  defect  in  the  date  of  the  crime,  which 
was  alleged  therein  as  subsequent  to  the 
filing  of  the  information,  it  is  error  for  the 
trial  court  to  require  the  accused,  over  his 
objection,  immediately  to  proceed  with  the 
trial  witliout  arraignment  under,  and  plea 
to,  such  amended  information,  and  without 
giving  him  the  statutory  time  in  which  to 
plead  thereto.  McKay  v.  State,  39:  714, 
132  N.  W.  741,  135  N.  W.  1024,  90  Neb.  63, 
91   Neb.  281. 

1479.  It  is  prejudicial  error  to  appoint  as 
an  assistant  prosecutor  in  a  criminal  prose- 
cution an  attorney  who  has  theretofore  been 
employed  and  paid  by  another  persorv  sus- 
pected of  the  crime,  and  who  has  appeared 
for  such  person  in  the  preliminary  exami- 
nation and  in  a  former  trial  of  the  accused, 
taking  an  active  part  therein  for  the  pur- 
pose of  protecting  his  suspected  client. 
Flege  V.  State,  47:  1106,  142  N.  W.  276,  93 
Neb.  610.  (Annotated) 

1480.  Where,  at  the  close  of  the  evidence 
in  a  criminal  prosecution,  the  judge  and 
attorneys  went  to  a  room  other  than  the 
court  room,  and  there,  in  the  absence  of 
the  accused,  a  motion  to  strike  out  certain 
evidence  was  made,  argued,  and  decided 
against  the  accused,  and  where,  upon  the 
discovery  of  the  absence  of  the  accused,  the 
court  had  him  brought  in  and  stated  to  him 
and  his  counsel  that  the  court  would  again 
hear  the  motion  argued,  an  offer  which  the 
prisoner's  counsel  in  his  presence  declined 
to  accept,  reversible  error  is  committed  and 
the  accused  is  entitled  to  a  new  trial.  State 
V.  Sutter,  43:  399,  76  S.  E.  811,  71  W.  Va. 
371. 

1481.  A  judgment  of  conviction  of  one  ac- 
cused of  homicide  will  not  be  reversed  be- 
cause he  was  not  present  when  his  motion 
for  new  trial  was  argued.  Henry  v.  State, 
52:  113,  136  Pac.  982,  10  Okla.  Crim.  Rep. 
369. 

1482.  When  a  juror  becomes  insane  pend- 
ing the  trial  of  a  criminal  case,  the  court 
must  declare  a  mistrial  and  proceed  de  novo, 
and  it  is  fatal  error  to  substitute  another 
juror  and  proceed  with  the  trial,  if  proper 
objections  are  taken  to  such  proceeding. 
Dennis  v.  State,  25:  36,  50  So.  499,  96  Miss. 
96.  (Annotated) 

1483.  Merely  bringing  the  child  into  the 
court  room  in  a  bastardy  proceeding  is  not 
reversible  error,  if  it  is  immediately  re- 
moved without  the  attention  of  the  jury 
being  called  to  it,  or  any  reference  to  it 
being  made  in  the  presence  of  the  jury. 
Johnson  v.  Walker,  1:470,  39  So.  49,  86 
Miss.  757. 

Excluding  iritnesses. 

1484.  One  on  trial  for  murder,  whose  de- 
fense is  insanity,  is  not  prejudiced  by  the 
action  of  the  court  in  excluding  alienists 
who  testify  on  his  behalf  from  the  court 
room  during  the  testimony  of  all  but  the 


APPEAL  AND  ERROR,  VII.  m,  7. 


165 


principal    witnesses.      Smith    v.    State,   .27: 
461,  49  So.  945,  95  Miss.  786. 
Opening  and  closing. 
As  to  right  to  open  and  close,  generally,  see 
Trial,  07. 

1485.  In  a  prosecution  for  the  alleged  com- 
mission of  a  crime,  the  defendant  may 
waive  his  opening  statement  to  the  jury; 
but  if  the  court  compels  counsel,  over  their 
objections,  to  make  that  statement,  the  er- 
ror is  without  prejudice,  unless  it  affirma- 
tively appears  from  the  record  that  defend- 
ant suffered  some  disadvantage  thereby. 
Pumphrey  v.  State,  23:  1023,  122  N.  W.  19, 
84  Neb.  636. 

Refusal  to  elect  bet'vreen  counts. 
As    to    election    between    counts    generally, 
see  Trial,  I.  b. 

1486.  Where  a  plaintiff  set  up  in  his  peti- 
tion three  counts  based  on  the  same  trans- 
action, and  at  the  close  of  the  testimony 
elected  to  stand  on  one  of  the  counts,  and 
the  case  was  submitted  to  the  jury  as  a 
single  cause  of  action,  the  refusal  of  the 
court  to  require  an  earlier  election  was  not 
prejudicial  error.  Edwards  v.  Hartshorn, 
i:  1050,  82  Pac.  520,  72  Kan.  19. 

Order   of  reception  of  evidence. 
As  to  order  of  proof  generally,  see  Trial, 
32-40. 

1487.  That  the  trial  court  received  evi- 
dence out  of  its  proper  order  is  not  ground 
for  reversal,  except  in  a  clear  case  of  abuse 
of  discretion.  Madson  v.  Rutten,  13:  554, 
113  N.  W.  872,  16  N.  D.  281. 

1488.  While  evidence  in  a  trial  for  homi- 
cide, that  the  witness  saw  the  deceased 
immediately  before  the  shooting,  and  knew 
that  he  did  not  make  any  motion  toward 
his  right  side  or  right  pants'  pocket,  is 
properly  evidence  in  chief,  the  admission 
thereof  in  rebuttal  where  it  is  contradic- 
tory of  evidence  given  by  the  defendant  is 
a  matter  of  discretion  of  the  trial  court, 
and  does  not  constitute  a  ground  for  rever- 
sal unless  an  abuse  of  discretion  is  shown. 
Hampton  v.  State,  40:  43,  123  Pac.  571,  7 
Okla.  Crim.  Rep.  291. 

1489.  It  is  not  reversible  error  to  refuse  to 
permit  questions  to  be  put  to  a  witness  on 
recross-examination,  where  no  excuse  is 
given  why  they  were  not  asked  upon  the 
cross-examination,  where  the  witness  has 
been  finished  with  once  and  recalled,  and 
the  party  offering  him  has  finished  with 
him.  Duffey  v.  Consolidated  Block  Ccal  Co. 
30:  1067,  124  N.  W.  609,  147  Iowa,  225. 

1490.  It  is  not  reversible  error  to  refuse  to 
reopen  an  action  for  rent  of  property  leased 
for  saloon  purposes,  which  use  has  failed 
because  of  the  enactment  of  a  prohibition 
law,  to  enable  defendant  to  show  that  the 
rental  value  of  the  property  was  much  less 
for  any  other  purpose,  where  the  lease  con- 
tains no  provision  for  relief  in  such  cases. 
Hecht  V.  Acme  Coal  Co.  34:  773,  113  Pac. 
788,  117  Pac.  132,  19  Wyo.  18. 

Digest  1-52  Ii.B.A.(N.S.) 


b.  Summoning  and  selection  of  jury. 

(See  also   same   heading   in   Digest  L.R.A. 
1-10.) 

Errors  cured  below,  see  supra,   814. 
Summoning  and  selection  of  jury  generally, 

see  Jury,  II, 
Ground  for  new  trial  as  to,  see  New  Trial, 

III.  c. 
See  also  supra,  1030. 

1491.  Where  a  competent,  impartial,  and 
honest  jury  is  secured  in  a  murder  case,  a 
conviction  will  not  be  reversed  because  of 
some  inadvertent  failure  to  comply  with 
every  directory  provision  of  the  jury  law, 
in  the  absence  of  any  showing  of  prejudice 
against  accused.  State  v.  Barnes,  23:  932, 
103  Pac.  702,  54  Wash.  93^. 

1492.  The  trial  court  is  vested  with  great 
discretion  in  excluding  veniremen  or  tales- 
men from  a  jury,  and  its  rulings  in  that 
particular  are  not  subject  to  review,  unless 
a  fair  jury  was  not  obtained.  Pumphrey 
V.  State,  23:  1023,  122  N.  W.  19,  84  Neb. 
636. 

1493.  A  judgment  of  conviction  will  not 
be  set  aside  because  of  alleged  error  in  over- 
ruling defendant's  challenges  for  cause  to 
veniremen,  on  the  ground  that  he  was  com- 
pelled by  reason  of  such  rulings  to  exhaust 
his  peremptory  challenges,  where  none  of 
such  persons  sat  upon  the  jury,  and  it  does 
not  affirmatively  appear  that  they  were 
peremptorily  challenged  by  him.  Pum- 
phrey v.  State,  23:  1023,  122  N.  W.  19,  84 
Neb.  636. 

1494.  A  judgment  of  conviction  of  murder 
will  be  reversed  where  the  record  shows 
that,  after  the  regular  panel  of  jurors  had 
been  exhausted,  the  deputy  marshal,  in 
summoning  additional  talesmen,  improperly 
discriminated  against  men  acquainted  with 
defendant's  counsel,  for  the  purpose  of  ob- 
taining the  conviction.  United  States  v. 
Hargo,  20:  1013,  98  Pac.  1021,  1  Okla.  Crim. 
Rep.  590. 

1495.  It  is  error  for  the  court  to  exclude 
from  the  jury  all  persons  of  the  Catholic 
faith  who  reside  within  the  diocese  of  a  bish- 
op who  has  title  to  property  in  trust  for  the 
Church,  the  right  to  remove  a  building  from 
which  is  in  controversy,  on  the  theory  that 
they  are  pecuniarily  interested  therein, 
where  they  are  not  members  of  the  parish 
where  the  property  is  located.  Searle  v.  Ro- 
man Catholic  Bishop,  25:  992,  89  N.  E.  809, 
203  Mass.  493. 

1496.  It  is  error  to  retain  upon  the  jury, 
over  a  challenge,  resident  taxpayers  of  a 
city  against  which  a  judgment  is  sought, 
at  least  where  there  is  no  difficulty  in  pro- 
curing jurors  whose  impartiality  is  unques- 
tioned. Broadway  Mfg.  Co.  v.  Leaven- 
worth Jerminal  R.  &  B.  Co.  28:  156,  106 
Pac.  1034,  81   Kan.  616. 

1497.  Even  though  the  trial  court  may 
improperly  overrule  a  challenge   for   cause 

Ito  a  juror,  yet,  if  the  defendant  perempto- 
rily challenges  said  juror,  and  if  it  appears 
that  the  defendant  did  not  exhaust  all  of 


156 


APPEAL  AND  ERROR,  VII.  ra,  7. 


his  peremptory  challenges,  and  that  no  ob- 
jectionable juror  was  forced  on  the  defend- 
ant, the  error  of  the  court  in  improperly 
overruling  such  challenge  will  be  harmless, 
and  will  not  be  ground  for  the  reversal  of 
a  conviction.  Warren  v.  State,  34:  1121, 
115  Pac.  812,  6  Okla.  Crim.  Rep.  1. 

1498.  Refusal  to  sustain  a  challenge  for 
actual  bias  as  to  one  called  as  a  juror  in 
a  criminal  prosecution  who  stated  on  his 
voir  dire  examination  that  he  had  formed 
such  an  opinion  as  to  the  guilt  of  the  ac- 
cused as  would  require  evidence  to  remove, 
constitutes  prejudicial  error,  although  the 
evidence  produced  may  show  the  defendant 
guilty  beyond  all  peradventure  of  a  doubt, 
since  the  accused  has  an  absolute  right  to 
have  preserved  to  him  his  constitutional 
rights  of  the  presumption  of  innocence 
and  a  trial  by  an,  impartial  jury.  Scribner 
V.  State,  35:  985,  108  Pac.  422,  3  Okla.  Crim, 
Rep.  601. 

1499.  An  accused  cannot  complain  of  the 
sustaining  of  challenges  by  the  state  where 
he  has  unexhausted  challenges  when  the 
jury  is  complete,  so  that  it  does  not  ap- 
pear that  any  objectionable  juror  was  forced 
upon  him.  Grant  v.  State,  42:  428,  148  S. 
W.  760,  —  Tex.  Crim.  Rep.  — . 

1500.  Under  a  statute  rendering  incompe- 
tent as  a  juror  in  a  criminal  prosecution 
one  who  has  read  the  testimony  of  the  wit- 
nesses and  formed  or  expressed  an  opinion 
as  to  the  guilt  or  innocence  of  the  accused 
thereon,  for  such  facts  are  made  to  ap- 
pear, there  is  no  discretion  lodged  in  the 
court,  and  it  is  manifest  error  to  overrule 
a  challenge  for  cause  on  this  ground.  Flese 
V.  State,  47:  1 106,  142  N.  W.  276,  93  Ne^b. 
610. 

1501.  A  true  verdict  in  a  criminal  case 
will  not  be  set  aside  because  a  juror  was 
inadvertently  given  a  wrong  Christian  name 
on  the  slip  placed  in  the  wheel,  so  that 
defendant's  counsel  investigated  the  qualifi- 
cations of  the  wrong  man,  if  the  occupation 
and  residence  were  correctly  given,  and  no 
objection  was  made  to  him.  Com.  v.  Potts, 
47:  714,  88  Atl.  483,  241   Pa.  325. 

(Annotated) 

1502.  The  swearing  of  the  jury  upon  the 
trial  of  an  indictment  for  embezzlement,  in 
advance  of  the  arraignment  and  plea  of  the 
accused,  and  not  again  thereafter,  is  rever- 
sible error.  United  States  v.  Aurandt,  27: 
1 181,  107  Pac.  1064,  15  N.  M.  292. 

c.  Conduct  of,   or  interference  with, 
jury. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Ground  foB  new  trial  as  to,  see  New  Trial, 
III.  d. 

Conduct  of,  or  interference  with,  jury  gen- 
erally, see  Tkial,  V.  b. 

See  also  supra,  441. 

1503.  Taking  notes  of  the  testimony,  by  a 
juror,  does  not  require  the  setting  aside  of 
the  verdict;  but  the  matter  is  within  the 
Digest  1-52  L.R.A.(N.S.) 


discretion  of  the  trial  court.     Com.  v.  Tuck- 
er, 7:  1056,  76  N.  E.  127,  189  Mass.  457. 

1504.  The  taking  of  a  hat  which  had  been 
introduced  in  evidence  in  an  action  for 
damages  for  an  assault  and  battery,  to  the 
jury  room,  constitutes  an  unprejudicial  ir- 
regularity not  aflbrding  ground  for  a  re- 
versal, where  the  evidence  adduced  upon  a 
motion  for  a  new  trial  showed  beyond  ques- 
tion that  the  act  was  an  innocent  mistake 
of  one  of  the  jurors,  and  that  no  use  was 
made  of  the  hat  by  the  jury  which  could  in 
any  way  affect  or  influence  the  minds  of 
the  jurors  or  work  any  injury  to  the  de- 
fendant. Morris  v.  Miller,  20:  907,  119  N. 
W.  458,  83  Neb.  218. 

1505.  That  a  juror,  while  in  a  jury  room, 
stated  to  a  fellow  juror,  in  a  side  talk,  that, 
about  two  weeks  before  the  fire,  he  had 
removed  a  trunk  from  the  house  of  the  de- 
fendant, who  was  being  prosecuted  for  the 
burning  thereof,  does  not  constitute  mis- 
conduct sufficient  to  invalidate  a  verdict, 
where  such  statements  were  not  discussed  or 
considered  as  a  part  of  the  evidence.  State 
V.  Shaw,  21:  27,  100  Pac.  78,  79  Kan.  396. 

1506.  It  is  reversible  error  to  permit  the 
jury  impaneled  to  try  one  accused  of  il- 
legal liquor  selling,  to  listen  to  a  political 
address  advocating  state-wide  prohibition, 
in  which  violations  of  local  option  laws  are 
discussed.  Rigsby  v.  State,  38:  11 16,  142 
S.  W.  901,  64  Tex.  Crim.  Rep.  504. 

(Annotated) 

1507.  A  conviction  for  homicide  will  be  re- 
reversed  where  the  jury,  pending  the  trial, 
were  allowed  to  mingle  with  the  crowd  in 
the  lobby  of  the  hotel  where  they  stopped 
and  in  the  corridors  of  the  courthouse,  and 
were  permitted  to  secure  intoxicating  liquor 
at  saloons,  and  have  it  brought  to  their 
room  in  the  hotel.  Com.  v.  Fisher,  26:  1009, 
75  Atl.  204,  226  Pa.  189. 

1508.  A  verdict  recovered  by  a  party  who, 
pending  the  action,  took  jurors  to  the  bar  to 
drink  in  the  absence  of  other  jurors  and  the 
officers  in  charge  of  them,  will  be  set  aside 
at  the  instance  of  the  other  party ;  and  he 
will  be  required  to  pay  the  costs  regardless 
of  the  absence  of  wrongful  intent  or  the  fact 
that  the  verdict  was  not  influenced  thereby. 
Scott  V.  Tubbs,  19:  733,  95  Pac.  540,  43  Colo. 
221.  (Annotated) 

d.  Submission  of  issues;  directing  ver- 
dict. 

(See   also  same  heading  in  Digest  L.R.A. 
1-10.) 

Errors  as  to,   cured  or  waived  below,  see 
supra,  VII.  k,  5. 

1509.  It  is  not  reversible  error  for  the 
court  to  permit  a  jury  trial,  although  notice 
of  election  to  try  the  case  to  a  jury  was 
not  given,  as  required  by  statute.  Sholin 
V.  Skamania  Boom  Co.  28:  1053,  105  Pac. 
632,  56  Wash.  303. 

Submitting  issnes. 

As  to  submission  of  issues  to  jury  generally, 
see  Tbiax,  II. 


APPEAL  AND  ERROR,  VII.  m,  7. 


157 


As  to  special  interrogatories  generally,  see 
Trial,  II.  e. 

1510.  It  is  error  to  refuse  to  submit  to 
the  jury  issues  which  there  is  evidence 
tending  to  support.  Kusehinsky  v.  Flani- 
gan,  41:  430,  136  N.  W.  362,  170  Mich.  245. 

1511.  The  submission  to  the  jury  of  a  cause 
of  action  in  the  complaint,  which  there  is 
no  evidence  to  support,  will  require  a  rever- 
sal, where  it  is  impossible  to  tell  upon  which 
cause  of  action  the  damages  were  allowed. 
Chase  v.  Knabel,  12:  1155,  90  Pac.  642,  46 
Wash.  484. 

1512.  Submission  to  the  jury  of  an  issue 
which  tliere  is  no  sufficient  evidence  to  sup- 
port is  error  which  will  require  the  setting 
aside  of  a  verdict  in  favor  of  the  one  having 
the  burden  of  establishing  it.  Hobbs  v. 
George  W.  Blanchard  &  Sons  Co.  18:  939,  70 
Atl.   1082,   75  N.  H.   73. 

1513.  Under  a  statute  giving  the  appellate 
court  in  a  trial  de  novo  of  probate  matters 
authority  to  order  a  trial  by  jury,  but  re- 
quiring such  order  to  state  distinctly  and 
plainly  the  questions  of  fact  to  be  tried, 
it  is  error  for  the  court  which  has  thus 
ordered  a  jury  trial  to  submit  the  case  to 
the  jury  for  a  general  verdict;  but  the  case 
should  not  be  reversed  for  such  an  error, 
where  it  affirmatively  appears  that,  not- 
withstanding the  verdict  of  the  jury,  the 
trial  judge  reviewed  the  evidence  and 
reached  the  same  conclusion  as  the  jury. 
Apache  State  Bank  v.  Daniels,  40:  901,  121 
Pac.  237,   32   Okla.   121. 

Refusal  or  failure  to  submit  issue. 
Refusal  of  special  interrogatories  generally, 
see  Trial,  II.  e. 

1514.  The  failure  of  the  trial  court  to  sub- 
mit the  question  of  exemplary  damages  is 
harmless  error  as  to  the  plaintiff,  even 
though  he  was  entitled  to  such  submission, 
where  there  is  no  liability  whatever  found 
by  the  jury.  Puis  v.  Hornbeck,  29:  202,  103 
Pac.  665,  24  Okla.  288. 

1515.  It  is  not  error  to  refuse  to  submit 
to  the  jury  a  special  interrogatory  if  an 
interrogatory  submitted  by  the  court  of 
its  own  motion  was  fair  and  full.  Mer- 
rill V.  Los  Angeles  Gas  &  Electric  Co.  31: 
559,  111   Pac.  534,  158  Cal.  499. 

1516.  It  is  not  error  to  refuse  to  submit 
to  the  jury  a  special  interrogatory  if  the 
return  of  the  answer  expected  by  the  one 
propounding  it  would  not  control  a  general 
verdict  in  favor  of  his  opponent.  Mer- 
rill V.  Los  Angeles  Gas  &  Electric  Co.  31: 
559,  111   Pac.  534,  158  Cal.  499. 

1517.  Refusal  to  submit  a  special  question 
to  the  jury  is  not  error,  if,  by  findings  on 
the  issues  submitted  to  them,  the  jury  an- 
swer the  question  against  the  contention  of 
the  one  taking  the  exception.  Manning  v. 
Anthony,  32:  11 79,  94  N.  E.  466,  208  Mass. 
399. 

1518.  Where  it  is  a  disputed  question  of 
fact  whether  a  person  who  employed  the 
workmen  and  superintended  the  operation 
of  a  gypsum  mine  was  an  independent  con- 
tractor or  the  superintendent  for  the  owner, 
it  is  error  to  instruct  the  jury  that  the 
owner  is  liable  for  fatal  injuries  to  a 
Digest  1-52  I<.R.A.(N.S.) 


laborer  employed  in  the  mine,  caused  by  the 
negligence  of  the  person  so  superintending 
the  mine,  without  submitting  to  the  jury 
the  disputed  question  of  fact  as  to  the  re- 
lation of  the  superintendent  to  the  owner. 
Laflfery  v.  United  States  Gypsum  Co.  45: 
930,  HI  Pac.  498,  83  Kan.  349. 
Demurrer  t«  evidence. 
As  to  demurrer  to  evidence  generally,   see 

Trial,  II.  d,  4. 
1519.  Where  the  evidence  in  an  action 
against  the  devisees  of  a  grantee  in  a  deed, 
to  set  aside  the  deed,  shows  that  sixteen 
years  elapsed  after  the  execution  of  the 
deed  and  prior  to  the  bringing  of  the  ac- 
tion; that  the  land  deed  was  situated  in 
a  state  other  than  that  in  which  the  par- 
tics  resided;  that  the  deed  was  executed 
upon  the  erroneous  advice  of  an  attorney 
as  to  the  rights  of  inheritance  between  the 
grantor  and  grantee  in  the  land  in  ques- 
tion; and  that  no  circumstances  arose  to 
cause  distrust  of  the  advice  given  until 
a  short  time  before  the  action  was  begun; 
and  that  no  rights  of  third  parties  have 
intervened  nor  has  any  change  of  conditions 
occurred  that  would  make  it  inequitable  to 
grant  relief,  the  laches  of  complainant  is 
a  question  of  fact,  and  it  is  error  to  sus- 
tain a  demurrer  to  the  evidence  and  dis- 
miss the  action.  Osincup  v.  Henthorn,  46: 
174,  130  Pac.  652,  89  Kan.  58. 
Directing  verdict. 
Error    as    to,    waived    or   cured   below,    see 

supra,   871,   872. 
As    to    direction    of    verdict   generally,    see 

Trial,  II.  d,  3. 
See  also  supra,  413;  Motions  and  Orders, 

5. 

1520.  Under  the  principle  of  de  minimis 
non  curat  lex  refusal  to  direct  a  verdict  for 
39  cents,  although  erroneous,  does  not  con- 
stitute ground  for  reversal,  where  no  ques- 
tion of  costs  is  involved.  McGregor  v. 
Harm,  30:  649,  125  N.  W.  885,  19  N.  D.  599. 

1521.  Where  issues  of  fact  are  presented 
by  the  pleadings  and  supported  by  evidence, 
and  the  facts  are  disjmted,  or  the  credibili- 
ty of  witnesses  is  dniwn  in  question,  or  a 
material  fact  is  left  in  doubt,  or  there  are 
inferences  to  be  drawn  from  facts  proven, 
the  case,  under  proper  instructions,  should 
be  submitted  to  tlie  jury;  and  it  is  revers- 
ible error  in  such  case  to  sustain  a  mo- 
tion to  direct  a  verdict.  Adams  v.  Coon, 
44:  624,   129   Pac.   851,   36   Okla.   644. 

1522.  A  defeated  party  who  has  intro- 
duced at  the  trial  all  the  legal  evidence  he 
offered,  and  has  rested  his  case,  is  thereby 
estopped  from  denying  that  he  can  do  no 
more  to  overcome  the  objection  that  the 
evidence  is  insufficient  to  sustain  a  verdict 
in  his  favor,  and  if  the  bill  of  exceptions 
contains  all  the  evidence,  and  it  is  clear 
beyond  doubt  that  it  could  not  sustain  a 
verdict  in  his  favor,  an  instruction  by  the 
court  to  return  a  verdict  against  him  upon 
some  other,  but  untenable,  ground,  is  er- 
ror without  prejudice,  and  no  ground  for 
reversal.  Bank  of  Havelock  v.  Western  U. 
Teleg.  Co.  4:  181,  141  Fed.  522,  72  C.  C.  A, 
580. 


168 


APPEAL  AND  ERROR,  VII.  m,  8. 


1523.  Where,  upon  the  issue  of  limitations, 
the  undisputed  evidence  shows  that  plain- 
tiff's cause  of  action  is  not  barred  by  oper- 
ation of  the  statute,  it  is  error  for  the 
trial  court  to  refuse  a  peremptory  instruc- 
tion to  return  a  verdict  for  the  plaintiff. 
Fidelity  &  Deposit  Co.  v.  Sheahan,  47:  309, 
133  Pac.  228,  37  Okla.  702. 

1524.  A  trial  judge  cannot  be  held  to  be 
in  error  in  directing  a  verdict  for  defend- 
ant in  an  action  brought  to  recover  dam- 
ages for  injury  to  the  hand  of  a  planer 
operator  of  mature  years  and  some  ex- 
perience, by  his  placing  it  in  the  revolving 
knives,  on  the  theory  that  there  could  be 
no  reasonable  difference  of  opinion  as  to 
his  negligence,  notwithstanding  his  testi- 
mony that  he  did  not  know  that  revolving 
knives  existed  where  he  put  his  hand,  if 
feeding  boards  into  the  space  caused  noise, 
vibration,  and  the  flying  of  shavings,  which 
could  have  been  caused  only  by  the  pres- 
ence of  such  knives.  Kroger  v.  Cumber- 
land Fruit  Package  Co.  35:  473,  130  N.  W. 
513,  145  Wis.  433. 

1525.  To  require  a  reversal  of  a  decision 
directing  a  verdict  for  defendant  in  an  ac- 
tion to  recover  damages  for  personal  in- 
juries, on  the  ground  that  there  was  no 
ground  for  reasonable  difference  of  opinion 
upon  the  evidence,  it  must  appear  to  have 
been  clearly  wrong.  Kroger  v.  Cumberland 
Fruit  Package  Co.  35:  473,  130  N.  W.  513, 
145  Wis,  433. 

1526.  A  verdict  directed  for  defendant  in 
an  action  against  a  railroad  company  for 
killing  a  person  at  a  railroad  crossing  will 
not  be  reversed  where  nothing  in  evidence  be- 
fore the  court  tends  to  show  the  exercise  of 
care  by  the  person  killed,  or  anything  that 
in  law  would  excuse  it,  merely  because  the 
jury  viewed  the  premises  and  might  have 
seen  something  not  disclosed  by  the  evidence 
which  would  have  warranted  a  recovery. 
Shum  V.  Rutland  R.  Co.  19:  973,  69  Atl. 
945,  81  Vt.  186. 

1527.  Where  the  defense  in  an  action  for 
libel  is  that  the  communication  is  privi- 
leged, and  the  evidence  shows  that  the  de- 
fendant made  an  affidavit  against- the  plain- 
tiff, whom  he  had  discharged  six  years 
previously,  charging  the  said  plaintiff  with 
dishonesty,  only  after  solicitation  and  upon 
the  assurance  that  it  would  be  used  only 
before  the  department  of  justice  and  in  a 
hearing  before  the  Senate  for  the  purpose 
of  refuting  charges  made  by  the  plaintiff 
against  an  appointee  to  public  office;  and 
there  is  no  evidence  to  indicate  that,  since 
the  discharge  of  the  plaintiff  by  the  defend- 
ant, any  ill  feeling  existed  on  the  part  of 
the  defendant,  other  than  the  fact  of  the 
discharge  at  which  time  some  little  diffi- 
culty occurred, — the  court  does  not  err  in 
holding  the  communication  a  qualified  privi- 
lege and  in  taking  the  question  of  malice 
awav  from  the  jury.  Tuohy  v.  Halsell,  43: 
323,^128  Pac.  126,  35  Okla.  61. 

1528.  Where  the  evidence  submitted  in  be- 
half of  a  proponent  as  to  the  due  execution 
of  an  instrument  offered  for  probate,  and 
as  to  the  testamentary  capacity  of  the 
Digest  1-52  L.R.A.(N.S.) 


allogod  testatrix  at  the  time  of  its  execu- 
tion, is  sufficient  to  make  out  a  prima  facie 
case  for  the  probate  of  the  paper  as  a  will, 
and  no  evidence  is  adduced  for  the  contest- 
ant, it  is  error  to  direct  a  verdict  in  favor 
of  the  latter.  Wells  v.  Thompson,  47:  722, 
78  S.  E.  823,  140  Ga.  119. 

*.  As  to  findings,  verdict,  or  judgment, 

(See   also    same   heading    in   Digest   L.R.A, 
1-10.) 

As  to  findings  generally,  see  Trial,  IV. 
As  to  verdict  generally,  see  Trial,  V. 

1529.  Error  in  changing  the  finding  of  the 
jury  in  respect  to  an  issue  propounded  to 
them  will  not  require  a  reversal  of  the 
judgment  if  it  is  supported  by  the  other 
findings  in  the  case.  Sprinkle  v.  Wellborn, 
3:  174,  52  S.  E.  666,  140  N.  C.  163. 

1530.  A  judgment  unsupported  by  the  find- 
ings and  conclusions  of  law  will  be  reversed. 
Hailey  v.  Riley,  17:  86,  95  Pac.  686,  14 
Idaho,  481. 

1531.  That  the  verdict  in  an  action  to  re- 
cover possession  of  real  estate  is  in  favor 
of  all  the  plaintiffs,  and  also  in  favor  of 
"those  defendants  who  are  tenants  in  com- 
mon with  the  plaintiffs,"  evidently  meaning 
those  thus  named  and  described  in  the 
petition,  but  failing  to  specify  their  names 
or  the  precise  proportional  share  of  each 
plaintiff  or  prevailing  defendant,  does  not 
prejudice  the  defendants,  and  is  not  ground 
for  reversal.  Fowler  v.  Wood,  6:  162,  85 
Pac.    763,   73   Kan.   511. 

1532.  The  submission  to  the  jury  of  a  pro- 
posed form  of  special  verdict  prepared  by 
counsel  for  the  plaintiff  is  not  such  an  ir- 
regularity as  will  require  the  special  ver- 
dict by  the  jury  to  be  set  aside,  where 
counsel  for  defendant  declined  to  prepare 
or  assist  in  the  preparation  of  such  a  form, 
and  the  jury  were  told  that  they  were  at 
liberty  to  disregard  it.  Rheinheimer  v. 
^tna  L.  Ins.  Co.  15:  245,  83  N.  E.  491,  77 
Ohio  St.  360. 

1533.  A  provision  in  a  decree  in  an  action 
for  a  divorce  brought  by  a  husband,  in 
which  alimony  was  allowed  to  the  wife  and 
a  divorce  granted  the  husband,  that  the  ac- 
ceptance by  the  wife  of  any  portion  of  the 
alimony  should  be  an  acquiescence  in  the 
decree  of  divorce,  and  bar  and  preclude  her 
right  to  an  appeal  from  it,  and  that  an 
application  for  an  appeal .  from  the  decree 
should  render  the  provision  for  alimony  in- 
effectual, inoperative,  and  void,  is  errone- 
ous. Huff  V.  Huff,  51 :  282,  80  S.  E.  846,  73 
W,  Va,  330, 

Verdict  disregarding  iastrnctions. 

1534.  A  judgment  will  not  be  reversed  be- 
cause the  jury  did  not  follow  instruction* 
which  were  so  erroneous  that  doing  so 
would  have  required  reversal.  Thornton  v. 
Dow,  32:  968,  111  Pac.  899,  60  Wash.  622. 

1535.  A  judgment  cannot  be  reversed  on 
the  ground  that  the  jury  disregarded  the 
instructions,  if  there  is  evidence  from  which 
they    might    have    found    that    the    condi- 


APPEAL  AND  ERROR,  VII.  m,  8. 


159 


tions   required  by   the   instructions   did  not 
exist.    Hasseltine  v.  Southern  R.  Co.  6:  loog, 
65  S.  E.   142,  75  S.  C.   141. 
Insufficiency  of  verdict   or  finding. 
Generally,  see  Trial,  V.  c. 

153G.  In  a  trial  by  the  court,  where  the 
court  makes  special  findings  in  favor  of 
the  defendants,  and  finds  generally  on  all 
the  issues  in  their  favor,  tlie  special  find- 
ings, when  insufficient  to  support  the  judg- 
ment based  on  all  the  findings,  will  be  dis- 
regarded, and  the  general  findings  held 
sufficient,  where  the  plaintifi's  have  failed 
to  ask  for  further  findings  or  for  modifi- 
cation of  those  made.  People's  Gas  Co.  v. 
Fletcher,  41:  1161,  105  Pac.  34,  81  Kan,  76. 

1537.  It  is  not  reversible  error  for  the 
court,  upon  receiving  the  report  of  a  jury 
in  a  prosecution  on  separate  counts  for  il- 
legally selling  intoxicating  liquor  and  main- 
taining a  liquor  nuisance,  that  they  had 
agreed  as  to  the  count  for  nuisance  but  dis- 
agreed as  to  the  other,  to  announce  that 
such  a  verdict  would  be  received  and  to  act 
upon  the  announcement.  State  v.  Weiss, 
36:  73,  113  Pac.  388,  84  Kan.  165. 

1538.  A  conviction  upon  consolidated  in- 
dictments charging  different  crimes  of  the 
same  general  nature  will  not  be  reversed 
because  of  a  general  verdict  of  guilty  as 
charged,  if  it  is  followed  by  a  sentence  that 
could  have  been  imposed  under  either  in- 
dictment, and  all  the  indictments  are  suf- 
ficient. Lucas  V.  State,  3:  412,  39  So.  821, 
144  Ala.  63. 

Failure  to  find. 

1539.  Where  a  defendant  files  a  separate 
answer,  setting  up  affirmative  matter  con- 
stituting a  defense,  it  is  error  for  the  trial 
court  to  fail  to  make  findings  on  the  is- 
sues thus  raised,  where  a  finding  favorable 
to  the  defendant  on  the  issue  presented 
would  defeat  the  plaintiff's  right  of  re- 
covery. Lorenzi  v.  Star  Market  Co. 
35:  1 142,  115  Pac.  490,  19  Idaho,  674. 
Amount;  measure  of  damages;  costs. 
See  also  supra,  185,  681. 

1540.  Failure  to  award  nominal  damages  is 
reversible  error  where  their  recovery  would 
determine  and  adjudicate  valuable  rights. 
Harvey  v.  Mason  City  &  Ft.  D.  R.  Co. 
3:  973,  105  N.  W.  958,  129  Iowa,  465. 

1541.  Failure  to  assess  nominal  damages 
is  not  ground  for  reversal  on  appeal.  New 
York,  C.  &  St.  L.  R.  Co.  v.  Rhodes,  24:  1225, 
86  N.  E.  840,  171  Ind.  521. 

1542.  A  judgment  will  not  be  reversed  for 
the  purpose  of  permitting  the  appellant  to 
recover  nominal  damages.  Hewaoo  v.  Pet- 
erman  Mfg.  Co.  51:398,  136  Pac.  1158,  76 
Wash.  600. 

1543.  A  judgment  will  not  be  reversed  to 
permit  the  recovery  of  nominal  damages. 
Checklev  v.  Illinois  C.  R.  Co.  44:  1127,  100 
N.  E.  942,  257  111.  491. 

1544.  A  verdict  for  nominal  damages 
should  be  set  aside  in  favor  of  one  injured 
by  another's  negligence,  where  he  has  been 
compelled  to  pay  a  substantial  sum  for 
medical  attendance,  and  there  is  evidence 
tending  to  show  that  he  suffered  physical 
pain  and  impaired  health  because  of  the 
Digest   1-52  I..R.A.(N.S.) 


injury.      Strever   v.   Woodard,   46:  644,    141 
N.  W.  931,   160  Iowa,  332. 

1545.  A  verdict  against  a  defendant  un- 
der instructions  of  the  court  allowing  puni- 
tive damages  in  addition  to  compensatory 
damages  will  be  set  aside  where  punitive 
damages  are  not  properly  recoverable,  since 
it  is  not  possible  to  tell  what  part  of  the 
verdict  is  founded  on  such  damages.  Voves 
V.  Great  Northern  R.  Co.  48:  30,  143  N. 
W.  760,  26  N.  D.  110. 

1546.  The  erroneous  allowance  of  $10  as 
lost  profits  for  the  negligent  destruction  of 
a  wagon  will  not  require  a  reversal  of  the 
judgment,  where  the  interest  which  might 
have  been,  but  was  not,  allowed  on  the 
principal  sum,  would  have  amounted  to 
more  than  that.  Weick  v.  Dougherty,  3: 
348,^  90  S.  W.  9<36,  139  Ky.  528. 

1547.  An  error  in  allowing  excessive  com- 
pensation for  extra  work  under  a  contract 
does  not  require  a  reversal;  but  the  appel- 
late court  may  correct  the  error  and  aflirm 
the  judgment  as  corrected.  McConnell  v. 
Corona  City  Water  Co.  8:  1171,  85  Pac.  929, 
149  Cal.  60. 

1548.  The  mere  statement  by  counsel  that 
he  would  consent  to  just  damages  will  not 
prevent  a  reversal  on  appeal  if  they  were 
erroneously  granted,  if  the  court  states 
that  his  decision  was  not  influenced  by  the 
statement,  and  an  appeal  was  taken  from 
the  award.  Cowley  v.  Northern  P.  R,  Co. 
41:  559,   123  Pac.  998,  68  Wash.  558. 

1549.  While  the  value  of  the  labor  be- 
stowed on  a  growing  crop  in  bringing  it 
forward  to  the  time  of  its  wrongful  de- 
struction does  not  ordinarily  afford  either 
a  sufficient  or  a  safe  measure  of  the  dam- 
ages occasioned  by  its  loss,  where  the 
parties  have  tried  the  case  upon  the  theory 
that  this  is  the  proper  measure  of  damages, 
a  judgment  will  not  be  reversed  for  this 
error,  especially  where  it  does  not  appear 
that  an  unjust  verdict  has  been  rendered. 
Missouri  O.  &  G.  R.  Co.  v.  Brown,  50:  1124, 
136  Pac.  1117,  41  Okla.  70. 

1550.  It  is  reversible  error  for  the  court 
to  attempt  to  add  interest  to  the  amount 
awarded  by  a  jury  in  an  eminent  domain 
proceeding  from  the  time  of  the  taking  to 
that  of  the  award.  Minot  v.  Boston,  25: 
311,  86  N.  E.  783,  201  Mass.  10. 

1551.  A  relator  is  not  entitled  to  reversal 
ef  a  decree  refusing  a  mandamus,  for  the 
purpose  of  avoiding  costs,  because  it  did  not 
award  that  portion  of  the  iielief  demanded 
to  which  he  was  entitled,  where  he  rejected 
respondent's  offer  to  furnish  such  portion. 
State  ex  rel.  Hallett  v.  Seattle  Lighting  Co. 
30:  492,  110  Pac.  799,  60  Wash.  81. 
Excessive  punishment. 

1552.  A  conviction  for  crime  will  not  be 
reversed  because  the  sentence  couples  with 
life  imprisonment,  which  is  entirely  legal, 
a  further  punishment  which  may  be  uncon- 
stitutional as  cruel  and  unusual.  State  v. 
Feilen,  41:418,  126  Pac.  75,  70  Wash.  65. 
W^rong  reasons. 

1553.  If  a  judgment  be  right  on  the  evi- 
dence and  the  facts  found,  it  will  be  af- 
firmed regardless  of  whether  the  reason  as-, 


160 


APPEAL  AND  ERROR,  VII.  n,  VIII.  a. 


signed  for  it  by  the  trial  court  is  sound.  ' 
Re  Upiiam,  48:  1004,  140  N.  W.  5,  152  Wis.  I 
275.  I 

1554.  A  judgment  which  is  proper  upon  the 
undisputed  facts  shown  by  the  record  will 
be  aflirmed  upon  appeal  without  considering 
whether  the  reasons  given  by  the  trial  judge 
for  his  conclusion  were  competent  and  ade- 
quate to  support  the  same.  Bowhay  v.  Rich- 
ards, 19:  883,  116  N.  W.  677,  81  Neb.  764. 

1555.  Assigning  the  wrong  reason  for  sus- 
taining a  demurrer  to  a  bill  which  is  sub- 
ject to  demurrer  is  not  ground  for  reversal. 
Gaynor  v.  Bauer,  3:  1082,  39  So.  749,  144 
Ala.  448. 

1556.  A  sound  decree  sustaining  a  general 
demurrer  to  a  bill  in  equity  should  not  be 
reversed,  merely  because  the  trial  court 
assigned  an  erroneous  or  incorrect  reason 
therefor.  Depue  v.  Miller,  23:  775,  64  S.  E. 
740,  65  W.  Va.  120. 

1657.  A  verdict  directed  on  specific  but  un- 
tenable grounds  cannot  be  affirmed  on  other 
grounds  unless  it  is  clear  beyond  doubt  that 
the  new  grounds  could  not  have  been  obvi- 
ated if  they  had  been  called  to  the  atten- 
tion of  the  defeated  party  at  the  time  the 
verdict  was  rendered.  Bank  of  Havelock  v. 
Western  U.  Teleg.  Co.  4:  181,  141  Fed.  522, 
72  C.  C.  A.  580. 

1558.  To  sustain  a  judgment  in  the  appel- 
late court  on  a  theory  as  to  which  no  ques- 
tion was  submitted  to  the  jury,  the  facts  to 
support  it  must  be  admitted,  or  conclusive- 
ly established,  by  the  evidence.  Galveston, 
H.  &  S.  A.  R.  Co.  V.  Currie,  10:  367,  96  S. 
W.  1073,  100  Tex.  136. 

1559.  A  judgment  for  defendant  in  an  ac- 
tion upon  a  purchase-money  note  given  for 
a  horse,  founded  upon  the  fact  that  the  ani- 
mal was  not  the  one  described  by  the  seller, 
cannot  be  affirmed  on  appeal  upon  evidence 
of  breach  of  warranty  of  pedigree  or  some 
latent  defect  in  the  animal.  Northfield  Nat. 
Bank  v.  Arndt,  12:  82,  112  N.  W.  451,  132 
Wis.  383. 

1560.  That  one  sued  upon  a  note  given  for 
the  purchase  price  of  an  engine  was  permit- 
ted to  recover  from  plaintiff  the  value  of 
certain  other  property  delivered  to  plain- 
tiff in  exchange  for  the  engine,  upon  the 
theory  that  there  had  been  no  acceptance  ot 
the  engine,  and  therefore  no  consideration 
for  the  property,  instead  of  upon  breach  of 
warranty  of  the  engine,  does  not  require  a 
reversal,  where  the  engine  delivered  was 
wholly  worthless  for  the  purposes  for  which 
it  was  purchased,  although  some  parts  of  it 
might  have  had  some  value  for  old  iron. 
J.  I.  Case  Threshing  Mach.  Co.  v.  Huber, 
32:  212,  125  N.  W.  66,  160  Mich.  92, 

1561.  Permitting  a  recovery  of  the  differ- 
ence  in   the  value   of   the   property   before 
and  after  the  injury   for   destruction  of  a 
well,  without  taking  into  account  the  cost 
of  another  supply  of   water,   is  not  preju- 
dicial error  where  the  recovery  is  only  for  ' 
$250.     Patrick  v.   Smith,  48:740,   134'Pac.  ! 
1076,  75  Wash.  407.  ' 
Digest  1-52  L.RJk.(N.S.) 


n.  Effect  of  matters  occurring  after  de- 
cision helow. 

Matters  pending  appeal  or  error  as  ground 
of  dismissal,  see  supra,   392-394. 

Till.  Judgment. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Finding  that  evidence  was  not  sufficient  to 
sustain  verdict  of  murder,  as  acqiiittal 
of  that  offense,  see  Criminal  Law,  189. 

Effect  of  reversal  on  former  jeopardy,  see 
CRIMINAL  Law,  201-205. 

Effect  of  death  on  judgment  rendered  with- 
out knowledge  thereof,  see  Judgmext, 
97. 

Amendment  of  pleading  after  affirmance  of 
judgment  on  appeal,  see  Pleading, 
121-123. 

Decree  upon  bill  of  review,  see  Review,  4, 
5. 

See  also  supra,  870. 

1562.  The  supreme  court  will  liberally  con- 
strue the  matters  presented  for  adjudication, 
and  incline  to  a  final  determination  of  the 
merits  of  the  controversy,  rather  than  send 
the  case  back  to  the  trial  court,  upon  merely 
formal  or  technical  issues,  for  obvious,  but 
not  apparently  useful,  amendment.  Gordon 
V.  Doran,  8:  1049,  111  N.  W.  272,  100  Minn. 
343. 

1563.  The  supreme  court  will  direct  an  ac- 
tion to  be  dismissed  where  the  comj)Iaint 
does  not  state  a  cause  of  action,  and  the 
evidence  affirmatively  shows  that  no  cause 
of  action  exists.  Hart  v.  Evanson,  3:  438, 
105  N.  W.  942,  14  N.  D.  570. 

1564.  The  court  cannot,  upon  appeal  from 
a  judgment  dismissing  the  action  after  the 
entry  of  a  former  judgment  on  a  verdict  in 
plaintiffs'  favor,  interfere  with  the  judg- 
ment so  entered.  Wagner  v.  Northern  L. 
Ins.  Co.  44:  338,  126  Pac.  434,  70  Wash.  210. 

1565.  On  appeal,  after  a  cause  has  been 
fully  argued  and  regularly  submitted  on  its 
merits,  the  reviewing  court  may,  for  good 
and  sufficient  reasons,  decline  to  render  a 
decree  conforming  to  a  subsequent  stipula- 
tion of  the  parties,  where  the  effect  will  be 
to  reverse  the  judgment  of  the  district 
court.  Jones  v.  Hudson,  44:  1182,  141  N. 
W.  141,  93  Neb.  561. 

1566.  An  appellate  court  cannot  set  aside 
a  verdict  in  one  case  because  a  jury  has 
reached  the  opposite  conclusion  on  the  same 
facts  in  another  case.  Sterns  v.  Spokane, 
46:620,  131  Pac.  476,  73  Wash.  118. 

1567.  In  considering  an  assignment  that 
the  judgment  of  the  lower  court  is  not  sus- 
tained by  the  evidence,  an  appellate  court 
is  not  required  to  set  out  and  discuss  tire 
evidence  in  extenso.  Burrowes  v.  Chicago, 
B.  &  Q.  R.  Co.  34:  220,  123  N.  W.  1028,  85 
Neb.  497,  126  N.  W.  1084,  87  Neb.  142. 

1568.  On  appeal,  appropriate  orders  may 
be  made  as  to  a  complaint  which  does  not 


APPEAL  AND  EPvROR,  VIII.  b. 


161 


state  a  cause  of  action,  although  the  suffi- 
ciency thereof  was  not  presented  to  the  ap- 
pellate court  for  action.  Prall  v.  Prall, 
26:  577,  50  So.  £67,  58  Fla.  496. 

156y.  Upon  the  direction  of  a  verdict  in 
favor  of  both  defendants  in  an  action 
against  a  city  and  a  railroad  company  for 
damages  to  abutting  property  by  the  con- 
struction of  an  approach  to  abolish  a  grade 
crossing  of  the  railroad  tracks,  the  appel- 
late court,  in  reversing  the  judgment,  can- 
not place  the  entire  liability  on  one  de- 
fendant to  the  exclusion  of  the  other.  Wal- 
ters V.  Baltimore  &  0.  R.  Co.  46:  1128,  88 
Atl.  47,  120  Md.  644. 

1570.  An  undelivered  deed  signed  by  the 
donee  of  a  power  who  was  ignorant  of  his 
rights  and  privileges  will  be  canceled  on  ap- 
peal from  a  decree  in  an  equitable  action 
involving  a  construction  of  the  will  creating 
such  power,  and  the  rights  of  all  devisees 
and  legatees  named  therein,  where  a  consid- 
eration of  all  the  issues  was  asked  and  the 
general  prayer  of  all  parties  was  for  equi- 
table relief,  although  such  donee  did  not 
specifically  appeal  from  that  part  of  the  de- 
cree dismissing  without  prejudice  her  com- 
plaint as  to  such  deed.  Loosing  v.  Loosing, 
25:  920,  122  N.  W.  707,  85  Neb.  66. 

1571.  A  caveator  who  might  have  asked 
for  the  restoration  of  deleted  portions  of  a 
mutilated  will  in  a  probate  court  may  have 
such  i-elief  in  the  superior  court,  to  which 
the  proceeding  is  removed  bv  appeal.  Hartz 
v.  Sobel,  38:  797,  71  S.  E.  995,  136  Ga. 
665. 

1572.  Judgment  should  not  be  rendered  for 
appellant  upon  reversal  of  a  decision  in  de- 
fendant's favor  in  an  action  to  recover  the 
premiums  alleged  to  be  flue  on  an  insur- 
ance policy,  if  the  findings  as  made  would 
not  support  it.  Fidelity  &  Casualty  Co". 
V.  Fresno  Flume  &  Irrig.  Co.  37:  322,  119 
Pac.   646,  161    Cal.  406. 

1573.  Although  an  appeal  in  an  eminent 
domain  proceeding  must  be  heard  de  novo 
in  the  appellate  court,  and  that  court  enter 
a  final  judgment  fixing  the  rights  of  the 
parties  and  awarding  compensation  with- 
out reference  to  the  action  of  the  trial 
court,  a  judgment  is  not  insufficient  which, 
in  effect,  enters  as  the  judgment  of  the  ap- 
pellate court  that  of  the  trial  court,  whicli 
defines  the  rights  of  the  parties  and  awards 
compensation.  Chesapeake  Stone  Co.  v. 
Moreland,  16:  479,  104  S.  W.  762,  126  Ky. 
656. 

1574.  The  reviewing  court  will  dispose  of 
an  application  for  injunction  against  a  li- 
quor nuisance  on  the  evidence  taken,  where 
neither  party  seeks  to  have  the  case  remand- 
ed for  further  testimony,  although  the  trial 
court,  while  holding  that  the  charge  of  nui- 
sance had  not  been  sustained,  dismissed  the 
case  for  want  of  jurisdiction,  declining  to 
go  fully  into  the  evidence  on  that  account. 
Detroit  Realty  Co.  v.  Oppenheim,  21:  585, 
120  N.  W.  804,  156  Mich.  385. 

1575.  The  eflfect  of  a  conviction  upon  the 
family  of  a  defendant  cannot  be  ground  for 
a    reversal.      Woody   v.   State,   49:  479,    136 
Pac.  430,  10  Okla.  Crim.   Rep,  322. 
Digest  1-52  L.B.A.(N.S.) 


1576.  A  prosecution  under  an  indictment 
charging  an  offense  cannot  be  dismissed  by 
the  appellate  court  because  the  facts  do  not 
support  the  conviction.  Hartnett  v.  State, 
23:  761,  119  S.  W.  855,  56  Tex.  Crim.  Rep. 
281. 

1577.  Although  a  carrier  has  no  right  to 
sell  a  shij^ment  without  legal  proceedings 
to  enforce  its  lien  for  freight  and  demur- 
rage, yet  where  it  has  done  so,  and  has 
used  reasonable  diligence  to  get  the  best 
price  obtainable  therefor,  and  no  damage 
to  the  shipper  is  shown  by  the  unlawful 
sale,  the  illegality  thereof  is  no  cause  for 
reversing  a  judgment  against  the  shipper 
rendered  in  an  action  against  him  for  the 
balance  of  the  carrier's  charges  after  credit- 
ing the  amount  derived  from  the  sale. 
Baltimore  &  0.  R.  Co.  v.  Luella  Coal  & 
Coke  Co.  52:  398,  81  S.  E.  1044,  —  W.  Va. 

Entry  nunc  pro  tunc. 

1578.  The  fact  of  the  death  of  a  party 
between  the  submission  and  decision  of  a 
cause  in  the  appellate  court  does  not  im- 
pair the  validity  of  a  judgment  thereafter 
rendered,  but  that  court  will,  on  proper 
showing,  satisfy  the  judgment,  recall  the 
mandate,  and  direct  the  clerk  to  refile  the 
opinion  and  enter  judgment  in  the  case 
nunc  pro  tunc,  as  of  the  date  when  the 
same  was  submitted.  Boyes  v.  Masters,  33: 
576,   114  Pac.  710,  28  Okla.  409. 

6.  Rendering   modified   judgment. 

(See   also   same   heading   in   Digest   L.R.A. 
1-70J 

1579.  Where  it  appears  from  the  plead- 
ings and  the  record  that  an  item  has  been 
included  in  the  judgment,  which  is  sepa- 
rable, the  cause  will  not  be  remanded,  but  as 
modified  judgment  will  be  rendered  by  the 
appellate  court.  Farmers  &  M.  Ins.  Co.  v. 
Cuff,  35:  892,  116  Pac.  435,  29  Okla.  106. 

1580.  On  appeal,  an  equitable  decree  which 
is  erroneous,  because  taken  for  confessed  as 
to  a  nonresident  as  to  whom  there  was  in- 
sufficient process,  will,  if  it  gives  no  relief 
against  such  party,  be  corrected  without  re- 
versal, provided  it  is  not  otherwise  errone- 
ous. Billmver  Lumber  Co.  v.  Merchants' 
Coal  Co.  26^1101,  66  S.  E.  1073,  66  W.  Va. 
696. 

1581.  In  the  exercise  of  its  appellate  juris- 
diction the  Supreme  Court  has  the  power  to 
allow  temporarv  alimony  to  a  party  pend- 
ing an  appeal  in  an  action  of  divorce,  and 
to  order  the  payment  of  attorneys'  fees  or 
suit  money  necessary  to  a  prosecution  of 
the  appeal,  and  may  likewise  provide  for 
the  temporary  custody  of  children  until  the 
determination  of  the  appeal.  Kjellander  v. 
Kjellander,  45:  943,  132  Pac.  1170,  90  Kan. 
112. 

1582.  Suit  money  and  maintenance  cannot 
be  awarded  upon  appeal  from  a  decree  dis- 
missing a  suit  for  divorce,  by  an  appellate 
court  having  original  jurisdiction  in  cases 
of  habeas-  corpus,  mandamus,  and  prohibi- 
tion onlv,  where  no  issue  in  regard  thereto 

11 


162 


APPEAL  AND  ERROR,  VIII.  b. 


was  made  in  the  trial  court.  Maxwell  v. 
Maxwell,  27:  712,  67  S.  E.  379,  67  W.  Va. 
119. 

1583.  The  supreme  court  has  jurisdiction, 
under  N.  D.  Rev.  Code  1905,  §  7229,  to  deter- 
mine all  the  issues  between  the  parties  in- 
volved in  a  divorce  suit  brought  before  it 
by  appeal,  and  may  consider  applications  for 
temporary  alimony,  counsel  fees,  and  suit 
money,  after  the  district  court  has  lost  ju- 
risdiction; but  such  applications  will  not  be 
considered  as  a  matter  of  course,  and  sliould 
be  made  in  the  district  court  whenever  there 
is  reasonable  opportunity  to  present  them 
intelligently  to  that  court  before  appeal. 
Mosher  v.  Mosher,  12:  820,  113  N.  W.  99, 
16  N.  D.  269. 

1584.  The  wife's  share  of  community  prop- 
erty cannot  be  increased  upon  the  husband's 
appeal  in  a  divorce  proceeding.  Pereira  v. 
Pereira,  23:  880,  103  Pac.  488,  156  Cal.  1. 

1585.  An  order  imposing  a  fine  for  con- 
tempt of  court  for  violation  of  an  injunc- 
tion erroneously  appropriating  it  to  the  use 
of  parties  injured  by  the  act  constituting 
the  contempt,  or  to  the  use  of  parties  prose- 
cuting the  contempt  proceeding,  in  the  ab- 
sence of  a  statute  authorizing  it,  will  be 
modified  on  appeal  by  striking  out  that  fea- 
ture. Barnes  v.  Chicago  Typographical 
Union  No.  16,  14:  1150,  83  N.  E.  932,  232 
111.  402. 

Affirming    in    part    and    reversing    in 
part. 

1586.  Where  a  case  is  dismissed  on  both 
general  and  special  demurrers,  and  on  ap- 
peal it  appears  that  the  general  demurrer 
was  wrongly  sustained,  but  that  several 
grounds  of  the  special  demurrer  were  well 
taken  and  that  if  the  dismissal  should  be 
affirmed  the  cause  of  action  would  be  barred 
by  the  statute  of  limitations,  the  ruling  on 
the  general  demurrer  will  be  reversed,  the 
ruling  on  the  special  demurrers  well  taken 
will  be  affirmed,  and  directions  given  that 
the  plaintifif  be  given  reasonable  opportunity 
to  amend  so  as  to  meet  the  ground  of  such 
special  demurrers  before  the  case  shall  be 
dismissed.  Riley  v.  Wrightsville  &  T.  R. 
Co.  24:  379,  65  S.  E.  890,  133  Ga.  413. 
Reducing  or  increasing  damages;  re- 
mittitur. 

Remittitur  on  new  trial,   see  New  Teial, 

V,  e. 
Remittitur  on  trial,  see  Tbial,  V.  e. 
See  also  infra,  1621,  1622. 

1587.  A  trial  court  which  deems  the  verdict 
in  an  action  for  damages  to  be  excessive  may 
impose  upon  the  successful  party  the  al- 
ternative of  accepting  a  reduced  amount  or 
of  submitting  to  a  new  trial;  but  it  has  no 
power  to  render  judgment  for  a  smaller  sum 
against  the  plaintiff's  objection,  after  re- 
fusal to  remit,  and  such  action  is  error  as 
to  both  pal-ties.  Cogswell  v.  Atchison,  T.  & 
S.  F.  R.  Co.  20:  837,  99  Pac.  923,  23  Okla. 
181. 

1588.  Although  a  case  is  of  such  a  charac- 
ter that  the  question  of  measure  of  dam- 
ages is  primarily  one  for  the  jury,  if,  un- 
der all  the  circumstances,  the  amount  of 
the  verdict  is  such  as  to  indicate  passion 
Digest  1-52  I<.R.A.(N.S.) 


or  prejudice,  the  appellate  court  will  re- 
quire a  remittitur  or  reverse.  Kurpgeweit 
V.  Kirby,  33:  98,  129  N.  W.  177,  88  Neb.  72. 
1589.  A  judgment  will  not  be  reversed  he- 
cause  of  an  instruction  which,  although  not 
affecting  the  real  controversy  between  the 
parties,  allows  damages  to  one  party  to 
which  he  is  not  entitled,  where  the  amount 
found  under  it  can  be  segregated  from  the 
rest  of  the  verdict  if  the  successful  party 
will  remit  such  amount.  Eaton  v.  Black- 
burn, 20:  53,  96  Pac.  870,  97  Pac.  539,  52 
Or.  300. 

1590.  Where  a  judgment  has  been  reversed 
for  the  erroneous  admission  of  evidence  on 
the  subject  of  damages,  and  on  a  former 
trial  the  jury,  with  entirely  legitimate  evi- 
dence before  it,  awarded  damages  in  an 
amount  which  was  not  challenged  on  appeal 
as  excessive,  the  respondent  may,  on  con- 
senting to  a  reduction  of  damages  to  the 
amount  of  the  verdict  on  the  former  trial, 
have  a  decree  of  affirmance.  Simoneau  v. 
Pacific  Electric  R.  Co.  49:  737,  136  Pac. 
544,    166   Cal.    264. 

1591.  A  remittitur  in  an  action  to  appor- 
tion a  corporate  dividend  among  life  ten- 
ants and  remaindermen  should  be  amended 
on  motion  so  as  to  show  the  appearance  of 
the  remaindermen  and  their  consent  to  be 
bound  by  the  decree.  Re  Osborne,  50:  510, 
103  N.  E.  823,  209  N.  Y.  484. 

1592.  Under  a  statute  allowing  the  su- 
preme court  to  direct  the  entry  of  a  proper 
judgment,  it  may,  in  an  action  for  wrong- 
ful death,  affirm  a  judgment  on  condition 
that  a  part  of  the  damages  recovered  be 
remitted.  Simoneau  v.  Pacific  Electric  Co. 
49:  737,   136  Pac.   544,   166  Cal.  264. 

1593.  A  verdict  of  $1,000  for  injuries  sus- 
tained at  a  railroad  crossing  by  the  wife  of 
a  farmer,  who  is  the  mother  of  children  and 
a  housekeeper,  is  inadequate  where,  in  ad- 
dition to  the  physical  and  mental  suffering 
sustained  by  her,  injuries  were  sustained 
which  will  cause  inconvenience  for  a  long 
time  and  perhaps  for  the  balance  of  her 
life;  and  such  verdict  will  be  increased  to 
$3,000.  Roby  v.  Kansas  City  S.  R.  Co.  41: 
355,  58  So.  696,  130  La.  880. 

1594.  An  allowance  of  $1,500  may  be  raised 
by  the  appellate  court  to  $3,000  as  damages 
to  be  awarded  parents  for  the  negligent 
killing  of  their  eleven-year-old  boy.  Bur- 
vant  V.  Wolfe,  29:  677,  52  So.  1025,  126  La. 
787. 

1595.  An  award  of  $25,000  for  injury  tea 
thirteen-year-old  boy  which  causes  a  loss 
of  both  his  hands  will  not  be  reduced  on  ap- 
peal, as  excessive.  Olson  v.  Gill  Home 
Invest.  Co.  27:  884,  108  Pac.  140,  58  Wash. 
151. 

1596.  Where  a  town  marshal,  in  arresting 
a  person,  beats  him  on  the  head  with  a 
loaded  pistol,  lacerating  his  scalp  so  that  he 
is  covered  with  blood,  a  judgment  for  $100 
in  an  action  brought  for  such  injuries  will 
be  increased  to  $500.  Stoehr  v.  Payne,  44: 
604,  61  So.   206,   132  La.  213. 

1597.  An  award  of  $25,000  for  an  assault 
committed  by  seizing  a  box  carried  by  a  cus- 
tomer in  defendants'  store  and  searching  it 


APPEAL  AXD  ERROR,  VIII.  c. 


163 


for  stolen  goods  in  the  presence  of  others 
will  be  reduced  on  appeal  to  $1,000,  although 
the  insult  and  indignity  was  emphasized 
by  the  offering  of  no  apology  upon  discov- 
ering that  the  contents  had  not  been  ob- 
tained in  their  store  and  by  ordering  her  to 
leave  the  store  when  she  complained  of  the 
treatment  extended  her,  where  there  was  no 
bodily  injury,  no  mental  sullering  caused  by 
physical  injury,  and  no  allowance  for  slan- 
der or  words  spoken,  or  for  battery.  Small 
V.  Lonergan,  25:  976,  105  Pac.  27,  81  Kan.  48. 

1598.  An  allowance  to  the  administrator 
of  $150  for  the  burial  casket  of  the  deceased, 
an  old  man  with  no  immediate  family  sur- 
viving, who  had  been  a  sailor  and  engineer 
on  small  steamers,  and  of  simple  tastes 
and  habits  and  modest  and  economical  ex- 
penditures, will  be  reduced  to  $100  on  ap- 
peal, where  the  decedent's  estate  was  only 
$798.32,  and  the  burial  expenses,  embra- 
cing the  casket,  exceeded  one  fourth  of  that 
amount, — especially  where  it  appears  that 
the  sole  legatee  objected  to  the  pui'chase 
of  such  an  expensive  casket,  and  the  admin- 
istrator was  a  person  having  knowledge  of 
his  duties  as  such.  Kroll  v.  Close,  28:  571, 
92  N.  E.  29,  82  Ohio  St.  190.       (Annotated) 

1599.  An  allowance  of  $500  for  mental 
suffering  caused  to  a  widowed  mother  by  be- 
ing deprived  of  consolation  of  her  son  at 
the  time  of  his  brother's  funeral,  because 
of  failure  to  deliver  a  telegram,  will  be  re- 
duced where  erroneous  elements  of  damage 
are  allowed  to  go  to  the  jury.  Western 
U.  Teleg.  Co.  v.  Garlington,  49:  300,  142 
S.   VV.   854,    101    Ark.   487. 

Heducing  or  increasing  punishment. 

IGOO.  The  criminal  court  of  appeals  of 
Oklahoma  while  in  possession  of  the  power 
of  modifying  a  judgment  and  reducing  the 
punishment  of  death  to  imprisonment  for 
life  cannot  exercise  this  power  except  for 
special  reasons  which  may  arise  in  an  in- 
dividual case.  Henry  v.  State,  52:  113,  136 
Pac.  982,  10  Okla.  Grim.  Rep.  369. 

1601.  A  sentence  will  not  be  interfered 
with  on  appeal  if  it  is  within  the  limits 
prescribed  by  law  and  is  not  the  result  of 
partiality,  prejudice,  oppression,  or  corrupt 
motive.  State  v.  Davis,  34:  295,  70  S.  E. 
811,  88  S.  C.  229. 

1602.  A  sentence  of  death  rendered  imder 
a  statute  providing  that  upon  conviction 
of  murder  in  the  first  degree  the  penalty 
shall  be  death  or  life  imprisonment  "in  the 
discretion  of  the  jury"  will,  on  appeal,  be 
reduced  to  imprisonment  for  life,  where  the 
competent  evidence,  although  showing  that 
the  accused  was  clearly  guilty  of  the  crime 
charged,  also  shows  that  other  co-conspira- 
tors, including  the  apparent  ring  leader, 
equally  guilty  had,  upon  conviction,  been 
given  life  sentence  only,  and  incompetent 
evidence  which  naturally  tended  to  influence 
the  minds  of  the  jurors  had  been  admitted 
upon  the  trial.  O'Hearn  v.  State,  25:  542, 
113  N.   W.   130,  79  Neb.  513. 

lte03.  An  attorney,  a  juror,  and  a  bailiff 
connected    with    a    murder    case   who    have 
been  guilty  of  contempt  of  court  in  furnish- 
ing and  drinking  intoxicating  liquor  in  the  ' 
Digest   1-52  I^R.A.(N.S.) 


attorney's  room  may  be  relieved  of  a  jail 
sentence  by  the  appellate  court  if  they  have 
sought  in  every  way  to  purge  themselves 
of  intentional  disrespect  for  the  court. 
Poindexter  v.  State,  46:  517,  159  S.  W.  197, 
'  109  Ark.  179. 

c.  Remanding;  granting  neiv  trial. 

(See   also   same   heading   in  Digest   L.R.A. 

1-10.) 

Statute  permitting  appellate  court  to  di- 
rect judgment  on  setting  aside  verdict, 
see  Constitutional  Law,  132. 

Direction  of  judgment  on  appeal  as  denial 
of  due  process,  see  Constitutional 
Law,  546. 

Remanding  case  for  rehearing  upon  petition 
for  mandamus  to  compel  issuance  of  li- 
cense, see  Mandamus,  120. 

See  also  supra,  1562. 

1604.  The  court  of  appeals  will  not  par- 
ticipate in  the  division  of  a  fund  which  had 
been  awarded  for  opening  a  street,  where 
none  of  the  claimants  are  shown  to  be  en- 
titled to  more  than  nominal  damages.  Re 
New  York,  37:  281,  89  N.  E,  829,  196  N.  Y, 
286. 

1605.  A  case  will  be  remanded  by  an  ap- 
pellate court  for  further  evidence  where  the 
interests  of  justice  appear  to  require  it. 
Vicksburg,  S.  &  P.  R.  Co.  v.  Webster  Sand, 
G.  &  Constr.  Co.  47:  1155,  62  So.  140,  132 
La.  1051. 

1606.  A  constitutional  provision  that, 
upon  a  review  of  an  order  of  the  state  cor- 
poration commission  upon  a  removal  to  the 
supreme  court  by  one  of  the  parties,  that 
court  may,  upon  application,  in  its  discre- 
tion or  of  its  own  motion,  require  or  au- 
thorize additional  evidence  to  be  taken  in 
such  cause,  does  not  contemplate  the  tak- 
ing of  additional  evidence  in  the  supreme 
court,  but  that  in  a  proper  case  the  cause 
will  be  referred  back  to  the  commission 
for  such  purpose.  Seward  v.  Denver  &  R 
G.  R.  Co.  46:  242,  131  Pac.  980,  17  N.  M. 
557. 

1607.  On  appeal,  where  there  is  no  finding 
of  the  trial  court  upon  a  material  fact, 
and  the  evidence  in  the  record  is  not  di- 
rected to  the  ascertainment  thereof,  the 
case  will  be  remanded  for  further  proceed- 
ings. Jobst  V.  Hayden  Bros.  50:  501,  121 
N.  W.  957,  84  Neb.  735. 

1608.  In  an  equitable  action  pending  on 
appeal,  the  case  will  be  remanded  for  fur- 
ther inquiry  as  to  the  value  of  the  prop- 
erty in  controversy,  where  the  result  de- 
pends upon  such  value,  and  it  is  impossible 
to  determine  it  from  the  evidence  adduced. 
Griswold  v.  Szwanek,  21:  222,  118  N.  W. 
1073,  82  Neb.  761. 

1609.  The  appellate  court  will  reverse  a 
judgment  for  plaintiff,  and  remand  for  a 
new  trial,  unless  it  clearly  appears  that 
plaintiff  cannot  better  his  case  upon  an- 
other trial,  where  the  evidence  is  such  that 
the  trial  court  should  have  directed  a  ver- 
dict for  the  defendant,  and  refused.     Hoyl- 


164 


APPEAL  AND  ERROR,  VIII.  c. 


man  v.  Kanawha  &  M.  R.   Co.   22:  741,   64 
S.  E.  526,  65  W.  Va.  264. 

1610.  Upon  the  reversal  of  a  judgment  by 
the  supreme  court,  the  case  is  reijuired  to  be 
remanded  for  a  new  trial  only  when  neces- 
sary; and  that  condition  is  always  deemed 
to  e.xist,  as  to  a  jury  case,  when,  under  any 
circumstances,  a  new  trial  might  result  oth- 
erwise than  in  such  a  judgment  being 
awarded  as  would  have  been  rendered  be- 
fore had  the  fatal  error  or  errors  not  been 
committed.  Hay  v.  Baraboo,  3:  84,  105  N. 
W.  654,  127  Wis.  1. 

1611.  In  the  absence  of  evidence  to  sup- 
port the  allegations  in  an  application  for 
habeas  corpus,  petitioner  will  be  remanded. 
Ex  parte' Barnes,  51:  1155,  166  S.  W.  728, 
—  Tex.  Crim.  Rep.  — . 

1612.  A  new  trial  will  not  be  granted  un- 
less the  evidence  so  strongly  preponderates 
gainst  the  verdict  as  to  lead  to  the  con- 
clusion that  the  jury  have  either  wilfully 
disregarded  the  evidence  or  failed  to  un- 
derstand or  appreciate  it.  Metropolitan  L. 
Ins.  Co.  v.  Montreal  Coal  &  Towing  Co. 
1  B.  R.  C.  298,  35  Can.  S.  C.  266.  Also  Re- 
ported in  25  Canadian  Law  Times,  Occ.  N. 
4. 

ICIS.  Upon  aflSrmance  of  a  judgment  sus- 
taining a  demurrer  to  the  complaint  for  de- 
fects in  form,  the  court  may  transmit  the 
case  to  the  trial  court  for  trial  on  the  •  ler- 
its  if  the  complaint  discloses  a  good  cause 
of  action,  under  a  statute  providing  that,  in 
case  of  affirmance,  where  it  shall  appear 
that  a  new  trial  ought  to  be  had,  'L  shall 
be  awarded  and  the  judgment  transmitted 
to  the  court  from  which  the  appeal  was 
taken,  to  the  end  that  the  case  may  )e  tri^d 
as  if  it  never  had  been  tried.  Milske  v. 
Steiner  Mantel  Co.  5:  1105,  63  Atl.  471,  103 
Md.  235. 

1614.  If  issues  not  presented  by  the  plead- 
ings were  fully  tried,  the  appellate  court 
may  remand  the  cause  with  permission  to 
amend  the  pleadings  to  meet  the  issues 
without  awarding  a  new  trial.  Lemay  v. 
Springfield  Street  R.  Co.  37:  43,  96  N.  E. 
79,  210  Mass.  63. 

1615.  The  granting  by  the  trial  court  of  a 
motion  to  change  answers  to  interroga- 
tories, which  will  result  in  a  judgment  for 
defendant,  does  not  remove  from  the  case 
his  alternative  motion  to  set  aside  the  ver- 
dict and  for  new  trial,  and,  upon  reversal 
for  error  in  ruling  upon  the  first  motion, 
the  case  may  be  remanded  for  action  upon 
the  others.  Fleming  v.  Northern  Tissue 
Paper  Mill,  15:  701,  114  N.  W.  841,  135  Wis. 
157.  , 

1616.  In  an  action  brought  to  enforce 
against  property,  liens  claimed  by  subcon- 
tractors and  materialmen  in  -vfrhich  the 
original  contractor  is  not  made  a  party, 
the  case  will  be  remanded  to  allow  such 
original  contractor  to  be  made  a  party  and 
a  new  trial  granted  therein.  Eberle  v, 
Drennan,  51:  68,  136  Pac.  162,  40  Okla.  59. 

1617.  A  suit  to  enforce  a  landlord's  cove- 
nant to  rebuild  cannot  be  remanded  by  the 
appellate  court  to  allow  the  tenant's  re- 
covery of  the  expense  of  removing  the  build- 
Digest  1-^2  I..R.A.(N.S.) 


ing  when  it  was  condemned  by  the  public 
autiiorities,  where  no  evidence  upon  that 
question  was  offered  at  the  trial.  Kirby  v.- 
Wylie,  21:129,  70  Atl.  213,   108  Md.  501.      ' 

1618.  A  new  trial  will  not  be  granted  by 
the  appellate  court  for  errors  in  instruc- 
tions in  a  suit  which  results  in  favor  of 
plaintiif,  if  in  no  aspect  of  the  testimony 
was  there  an  available  defense  to  the  ac- 
tion. Bateman  v.  Kramer  Lumber  Co.  34: 
615,  70  S.  E.  474,  154  N.  C.  248. 

1619.  Where  the  only  error  upon  a  trial 
to  recover  damages  for  personal  injuries  af- 
fects tTie  question  of  the  amoimt  of  damages 
only,  the  appellate  court  in  reversing  the 
judgment  may  grant  a  new  trial  as  to 
that  question  alone.  Alarshall  v.  Dal  ton 
Paper  Mills,  24:  128,  74  Atl.  108,  82  Vt.  489. 

1620.  On  error  to  the  overruling  of  a  mo- 
tion for  a  new  trial  on  the  ground  of  the 
inadequacy  of  the  damages  found  by  the 
jury  in  an  action  to  recover  for  personal 
injuries,  the  reviewing  court  may  reverse 
the  judgment  of  the  trial  court,  and  grant 
a  new  trial  on  the  ground  that  the  verdict 
is  not  sustained  by  sufficient  evidence.  To- 
ledo Railways  &  L.  Co.  v.  Mason,  28:  130, 
91  N.  E.  292,  81  Ohio  St.  463.       (Annotated) 

1621.  The  appellate  court  will  not  order  a 
reduction  of  the  judgment,  but  will  grant 
a  new  trial  only  as  to  those  defendants 
whose  liability  was  less  than  the  amount  of 
the  judgment,  where,  in  an  action  on  a  li- 
quor bond,  a  joint  judgment  was  entered 
against  several  sureties  in  excess  of  the  lia- 
bility of  some  of  them  as  specified  in  their 
bonds, — especially  where  the  liability  is 
several  as  well  as  joint,  and  plaintiff  of- 
fered in  the  lower  court  to  discontinue  as 
to  them  or  allow  them  a  new  trial.  Meri-i";' 
nane  v.  Miller,  25:  585,  118  N.  W.  11,  122 
N.  W.  82,  157  Mich.  279. 

1622.  Where  the  amount  of  the  verdict  in 
an  action  against  a  railroad  company  for 
ejection  of  a  passenger  from  a  train  dis- 
closes such  passion  and  prejudice  that  it 
would  be  unjust  to  hold  the  railroad  com- 
pany foreclosed  by  its  findings,  the  court 
will  grant  a  new  trial,  and  not  merely  re- 
quire a  remittitur.  Olson  v.  Northern  P.  R. 
Co.  18:  209,  96  Pac.  150,  49  Wash.  626. 

1623.  A  policeman  is  not  exempt  from  civil 
liability  when  he  acts  in  a  wrongful,  oppres- 
sive, and  illegal  manner;  but  where,  in  an 
action  against  a  policeman  and  the  munici- 
pality for  wrongful  arrest,  a  joint  verdict 
is  rendered  against  both  defendants,  and 
judgment  thus  entered,  and  upon  appeal  the 
municipality  is  adjudged  not  liable  for  the 
act  of  the  policeman,  the  entire  judgment 
will  be  reversed  and  a  new  trial  ordered  as 
to  the  policeman.  Lawton  v.  Harkins,  42: 
69,  126  Pac.  727,  34  Okla.  545.     (Annotated) 

1624.  A  convicted  defendant  who  has  duly 
perfected  his  appeal  to  a  court  of  last  re- 
sort is  entitled  to  a  reversal  of  the  convic- 
tion and  a  new  trial  as  a  matter  of  right 
where  the  record  has  been  lost  without  pos- 
sibility of  substitution  through  no  fault' of 
the  defendant  or  his  counsel.  Bailey  v. 
United  States,  25:  860,  104  Pac.  917,  3  Okla. 
Cr.im.    Rep.    175.  (Annotated) 


APPEAL  AND  ERROR,  VIII.  d. 


165 


1625.  A  conviction  of  murder  will  be  set 
aside  on  appeal  for  unfairness,  where  the 
court  room  was  filled  with  a  hostile  crowd 
who  threatened  lynching,  so  that  the  coun- 
sel called  upon  to  defend  accused  did  not 
dare  ask  the  customary  time  for  prepara- 
tion, and  the  space  about  the  judgt;  coun- 
sel, and  witnesses  was  so  filled  with  people 
that  counsel  for  accused  could  not  see  the 
witnesses,  and  failed  to  see  the  jury  until 
he  arose  to  address  them.  State  v.  Weldon, 
39;  667,  74  S.  E.  43,  91  S.  C.  29. 

(Annotated) 

1626.  Where  there  is  a  variance  between 
the  verdict  of  the  jury  and  the  sentence  of 
the  court,  it  must  appear  from  the  record 
that  such  variance  cannot  be  corrected  with- 
out depriving  tne  defendant  of  a  substantial 
right,  before  the  conviction  will  be  set 
aside,  but  the  cause  will  be  remanded  to  i,iie 
lower  court  for  resentence.  Wood  v.  State, 
45:  673,  112  Pac.  11,  4  Okla.  Crim.  Rep. 
436. 

Directions  to  trial  court. 

1627.  Upon  appeal  in  an  equity  case,  where 
the  facts  have  all  beeai  judicially  ascer- 
tained, the  court,  in  reversing  the  decree, 
may  direct  the  entry  of  the  judgment  to 
which  the  parties  are  entitled.  Central 
New  York  Teleph.  &  Teleg.  Co.  v.  Averill, 
32:  494,  92  N.  E.  206,  199  N.  Y.  128. 

1628.  On  appeal  from  an  order  issuing  out 
of  a  suit  founded  upon  a  creditor's  bill, 
temporarily  enjoining  the  prosecution  of  a 
suit  for  the  same  cause  of  action  in  a 
foreign  court,  where  it  clearly  appears  that 
the  prosecution  of  such  foreign  action  can- 
not be  restrained,  the  appellate  court  must 
direct  the  dismissal  of  the  bill  as  to  the 
prayer  for  an  injunction  in  order  to  save 
the  parties  to  the  suit  further  expense  re- 
sulting from  the  endeavor  to  secure  im- 
possible relief.  Guardian  Trust  Co.  v.  Kan- 
sas City  S.  R.  Co.  28:  620,  171  Fed.  43,  96 
C.  C.  A.  285. 

1629.  Notwithstanding  statutory  authority 
to  render  final  judgment  in  the  appellate 
court  upon  reversal  of  a  judgment  entered 
upon  an  agreed  statement  of  facts,  the  bet- 
ter practice  is  to  remand  the  case  with 
directions  to  the  trial  court  to  enter  judg- 
ment in  accordance  with  the  petition.  Lenon 
V.  Mutual  L.  Ins.  Co.  8:  193,  98  S.  W.  117, 
80  Ark.  563. 

1630.  When  the  facts  are  undisputed,  and 
the  rights  of  the  parties  can  be  clearly  seen 
and  determined,  the  appellate  court  may  or- 
der judgment  to  be  entered  for  the  proper 
party.  Haskell  &  B.  Car  Co.  v.  Przezdzian- 
kowski,  14:  972,  83  N.  E.  626,  170  Ind.  1. 

1631.  An  appellate  court  cannot,  in  re- 
versing a  judgment,  direct  judgment  to  be 
entered  for  one  of  the  parties,  where  the 
evidence  upon  the  issue  is  conflicting.  Rep- 
pond  v.  National  L.  Ins.  Co.  11:  981,  101  S. 
W.  786,  100  Tex.  519. 

1632.  On  the  denial  of  a  motion,  made  in 
the  circuit  court,  to  change  a  verdict  which 
upon  its  face  is  contrary  to  the  undisputed 
evidence,  to  correspond  with  the  established 
state  of  the  case,  or  for  a  judgment  not- 
withstanding the  same,  the  supreme  court 
Digest   1-52  I..R.A.(X.S.) 


may,  after  reversing  the  judgment  rendered 
according  to  the  erroneous  verdict,  remand 
the  case,  with  directions  to  grant  the  mo- 
tion and  render  judgment  accordingly.  Hay 
v.  Baraboo,  3:  84,  105  N.  W.  654,  127  Wis.  1. 

d.  Costs;  interest;  damages  for  delay. 

(See  also  same  heading  in  Digest  L.R.A. 
1-7  O.J 

Power  of  attorney  to  appeal  and  bind  client 
for  costs  of  transcript,  see  Attorneys, 
43. 

Costs  on  appeal  in  condemnation  proceed- 
ings, see  Eminent  Domain,  177,  178. 

1633.  Each  party  may  be  required  to  pay 
his  own  costs  on  reversal  of  a  decree  for 
want  of  jurisdiction  in  the  trial  court,  where 
defendant  did  not  question  the  jurisdic- 
tion, but  proceeded  to  try  the  case  on  its 
merits.  Columbia  Nat.  Sand  Dredging  Co. 
v.  Morton,  7:  114,  28  App.  D.  C.  288. 

1634.  One  who  institutes,  in  a  court  of 
equity,  a  suit  of  which  it  has  no  jurisdic- 
tion, and  is  compelled  to  appeal  upon  de- 
fendants recovering  judgment  against  him 
without  questioning  the  jurisdiction,  is  en- 
titled to  his  costs  on  appeal  upon  dismissal 
of  the  suit.  Maxwell  v.  Frazier,  18:  102, 
96  Pac.  548,  52  Or.  183. 

1635.  Appellants,  who  prevail  on  the  main 
issue  in  the  case,  are  entitled  to  costs,  al- 
though a  definition  of  their  rights  upon  a 
matter  incidental  to  the  main  purposes  of 
the  suit  may  be  modified  by  the  appellate 
court.  Trullinger  v.  Howe,  22:  545,  97  Pac. 
548,  99  Pac.  880,  53  Or.  219. 

1636.  A  creditor  upon  whose  objection  a 
bankrupt  is  denied  his  discharge  for  failure 
to  disclose  assets  will  not  be  required  to 
pay  the  costs  of  appeal,  although  the  de- 
cision is  reversed,  where  the  bankrupt  re- 
fused to  furnish  information  necessary  to 
a  proper  disposition  of  the  case.  Re  McCrea, 
20:  246,  161  Fed.  246,  88  C.  C.  A.  282. 

1637.  A  landowner  who  upon  appeal  suc- 
ceeds in  increasing  the  amount  awarded  him 
in  a  road-opening  proceeding  is  entitled  to 
his  costs  in  the  appellate  court.  Broadway 
Coal  Min.  Co.  v.  Smith,  26:  565,  125  S.  W. 
157,  136  Ky.  725. 

1638.  One  appealing  from  an  injunction 
too  broad,  because  in  contravention  of  a 
statute,  is  not  entitled  to  his  costs  on  ap- 
peal if  he  never  performed  or  off'ered  to 
perform  that  portion  of  the  decree  to  which 
plaintiff  was  entitled,  thereby  depriving 
him  of  material  relief,  to  his  injury.  Grand 
Union  Tea  Co.  v.  Dodds,  31 :  260,  128  N. 
W.   1090,  164  Mich.  50. 

1639.  Nominal  defendants  to  a  bill  to  set 
aside  a  deed  and  distribute  the  property 
to  heirs,  who  are  made  such  to  bind  them 
by  the  decree,  should  not  be  charged  with 
costs  on  appeal  in  case  plaintiff  succeeds 
in  reversing  a  decree  against  him  in  the 
lower  court,  if  they  make  no  active  de- 
fense. Renehan  v.  McAvoy,  38:  941,  81  AtL 
586,    116   Md.   356. 


166 


APPEAL  AND  ERROR,  VIII.  e. 


Cost  of  transcript,  brief,  etc. 

1640.  On  appeal  of  a  case  dismissed  on  de- 
murrers, costs  cannot  be  taxed  for  the  mak- 
ing of  the  transcript  of  the  answers  of 
the  defendants,  where  the  bill  of  exceptions 
did  not  specify  such  answers,  and  they  were 
not  directed  to  be  transmitted,  but  were 
voluntarily  included  by  the  clerk  of  the 
trial  court  in  the  transcript  of  the  record. 
Riley  v.  Wrightsville  &  T.  R.  Co.  24:  379, 
65  S.  E.  890,  133  Ga.  413. 

1641.  A  defendant  with  property  and  one 
who  does  not  intend  to  press  his  appeal 
are  not  entitled  to  free  transcripts  of  notes 
of  evidence  taken  at  the  trial.  State  v. 
Dewey,  40:  478,  136  N.  W.  533,  155  Iowa, 
469. 

■e.  Effect  of  decision;   subsequent  pro- 
ceedings. 

{See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

Effect  of  reversal  on  former  jeopardy,  see 
Criminal  Law,  201-205. 

1642.  Where,  after  a  decision  of  a  case, 
and  rendition  of  an  opinion  by  the  Supreme 
Court,  its  mandate  is  regularly  trans- 
mitted to  the  trial  court,  and  is  spread 
upon  its  recoi'ds,  the  former,  in  the  ab- 
sence of  fraud,  accident,  inadvertence,  or 
mistake,  is  without  jurisdiction  to  recall 
the  mandate  and  entertain  a  petition  for 
rehearing,  and  a  motion  for  leave  to  file  the 
same  will  be  denied.  Thomas  v.  Thomas, 
35:  124,  109  Pac.  825,  113  Pac.  1058,  27 
Okla.  784. 

1643.  Retrial  of  an  action  if  reversed  for 
■want  of  parties  may  be  dispensed  with  if, 
upon  the  case  again  reaching  the  trial  court, 
the  absent  parties  stipulate  to  be  bound  by 
the  judgment.  Mitau  v.  Roddan,  6:  275,  84 
Pac.  145,  149  Cal.  1. 

1644.  A  plaintiff  whose  judgment  is  re- 
versed on  appeal  after  consideration  of  the 
law  and  the  facts  is  not  entitled  to  the 
benefit  of  a  statute  permitting  the  institu- 
tion of  a  new  suit  within  a  year  in  case 
of  a  nonsuit  or  a  reversal  of  a  judgment 
in  his  favor,  where  the  appellate  court  is 
authorized  to  award  a  new  trial,  reverse, 
or  affirm,  since  the  reversal  referred  to  in 
the  statute  must  be  held  to  mean  one  in 
which  the  merits  of  the  cause  have  not 
been  adjudicated.  Strottman  v.  St.  Louis, 
L  M.  &  S.  R.  Co.  30:  377,  128  S.  W.  187, 
228  Mo.  154.  (Annotated) 

1645.  An  amendment  to  the  complaint  in 
an  action  by  a  father  to  recover  damages 
for  the  death  of  his  minor  son,  leave  to  file 
which  was  applied  for  pending  a  motion  for 
new  trial,  prior  to  appeal,  which  resulted  in 
a  reversal  of  a  judgment  in  plaintifTs  favor, 
BO  as  to  add  the  name  of  his  wife,  as  a  co- 
plaintiff,  may  be  allowed  when  the  case  is 
remanded  for  new  trial.  Bracken  v.  Penn- 
Bvlvania  R.  Co.  34:  790,  71  Atl.  926,  222  Pa. 
410. 

1646.  An  amendment  of  an  alternative  writ 
of  mandamus  may  be  allowed  by  the  trial 
Digest   1-52  Ii.R.A.(N.S.) 


court  after  its  dismissal  of  the  proceeding 
has  been  aflirmed  on  appeal  by  a  decree  di- 
recting the  case  to  be  remanded,  and  a  judg- 
ment to  ba  '•entered  and  docket<'d  in  accord- 
ance herewith."  State  ex  rel.  Gibson  v. 
Richardson,  8:  362,  85  Pac.  225,  48  Or.  309. 
1C47.  It  is  error  for  the  trial  court,  upon 
the  return  of  a  case  to  it,  to  continue  per- 
petually an  injunction  which  the  appellate 
court  directs  to  be  continued  to  tiie  hear- 
ing. Durham  v.  Eno  Cotton  Mills,  11: 
1 163,  57  S.  E.  465,  144  N.  C.  705. 

1648.  Upon  reversal  of  a  judgment  in  a 
divorce  proceeding  upon  the  husband's  ap- 
peal ami  remanding  of  the  case  for  new 
trial,  because  of  error  in  classing  as  com- 
munity in  the  division  of  the  property  that 
which  was  his  separate  estate,  the  trial 
court  is  at  liberty  to  make  a  new  appor- 
tionment of  community  between  the  parties 
in  such  shares  as  shall  seem  just  under  all 
the  circumstances.  Pereira  v.  Pereira, 
23:  880,  103  Pac.  488,  156  Cal.   1. 

1649.  An  amendment  of  the  complaint  in 
an  action  for  damages  for  mistake  in  the 
transmission  of  a  telegram  which  was  insuf- 
ficient because  failing  to  allege  negligence, 
should  be  allowed  upon  reversal  of  a  judg- 
ment of  nonsuit,  where  the  complaint 
was  not  challenged  except  by  motion  for 
nonsuit,  although  insufficiency  of  the  com- 
plaint is  not  a  ground  for  nonsuit,  and  upon 
the  trial  a  prima  facie  case  of  negligence 
was  established.  Strong  v.  Western  U. 
Teleg.  Co.  30:  409,  109  Pac.  910,  18  Idaho, 
389. 

Conclusiveness   of,  generally. 

1650.  The  opinion  of  the  Federal  appel- 
late court,  upon  remanding  a  cause  to  the 
Federal  trial  court  for  trial,  does  not  con- 
stitute the  law  of  the  case  in  a  state  court 
in  which  plaintiff  brings  the  action  after 
dismissing  it  in  the  Federal  court.  Wells  v. 
Western  U.  Teleg.  Co.  24:  1045,  123  N.  W. 
371,  144  Iowa,  605. 

1651.  After  the  supreme  court  of  appeals 
of  West  Virginia  has  reversed  a  decree  as  to 
a  matter  finally  determined  thereby,  and 
has  remanded  the  cause  with  direction  to 
enter  a  particular  decree  as  upon  the  merits 
of  the  subject-matter  thereof,  its  mandate 
is  final  and  conclusive  upon  all  parties  as 
to  all  matters  and  things  so  directed;  and 
no  new  defenses  existing  and  known  at  the 
date  of  the  decree  so  reversed  can  be  enter- 
tained or  heard  in  opposition  thereto.  Bar- 
bour V.  Tompkins,  3:  715,  52  S.  E.  707,  58 
W.  Va.  572. 

1652.  The  affirmance  of  a  nonsuit  in  an 
action  for  negligent  injuries  is  the  law  of 
the  case  in  future  litigation  upon  the  same 
state  of  facts,  regardless  of  different 
theories  that  may  be  advanced  as  ground 
for  recovery.  Strehlau  v.  John  Schroeder 
Lumber  Co,  48:  464,  142  N,  W.  120,  152 
Wis.  589.  (Annotated) 
On  later  appeal. 

1653.  A  decision  rendered  on  appeal,  which 
is  palpably  erroneous,  may  be  corrected  on 
second  appeal.  Henry  v.  Atchison,  T.  &  S. 
F.  R.  Co.  28:  1088,  109  Pac.  1005,  83  Kan. 
104. 


APPEAL  AND  ERROR,  VIII.  f— X. 


167 


1C54.  That  a  point  was  involved  in  the 
record  of  a  first  appeal  does  not  preclude  its 
consideration  and  determination  on  a  sec- 
ond appeal,  where  it  was  not  brought  to 
the  attention  of  or  considered  by  the  court 
on  the  former  appeal.  Henry  v.  Atchison, 
T.  &  S.  F.  R.  Co.  28:  1088,  109  Pac.  1005, 
83  Kan.   104. 

1655.  A  question  once  decided  by  the  court 
of  appeals  will  not  be  re-examined  when  the 
case  again  comes  before  that  court  upon  the 
same  facts  and  under  the  same  conditions. 
Mutual  Reserve  Fund  L.  Asso.  v.  Ferren- 
bach,  7:  1 163,  144  Fed.  342,  75  C.  C.  A.  304. 

165G.  Matters  arising  in  an  action  after  a 
first  appeal  therein,  and  before  a  second  ap- 
peal is  taken,  are  rendered  res  judicata  upon 
the  determination  of  the  second  appeal. 
Brown  v.  Ciesap,  9:  997,  56  S.  E.  603,  61  VV. 
Va.  315. 

1657.  Matters  of  law  determined  upon  a 
former  appeal  become  the  settled  law  of 
the  case,  are  binding  upon  the  court  and  the 
litigants,  and  cannot  be  reviewed  on  second 
appeal.  Dye  v.  Crary,  9:  1136,  85  Pac.  1038, 
13  N.  M.  439. 

1658.  The  effect  of  a  judgment  cannot  be 
avoided  on  the  second  trial  on  the  theory 
of  a  difference  in  evidence  if  it  is  clear  that 
the  court,  in  rendering  the  first  judgment, 
acted  upon  the  facts  substantially  as  they 
appear  in  the  newly  oflered  evidence.  Tha- 
ler V.  Wilhelm  Greisser  Constr.  Co.  33:  345, 
79  Atl.   147,  229  Pa.  512. 

1659.  A  decision  against  plaintiff  by  an 
appellate  court  for  failure  of  proof  is  not 
conclusive  in  defendant's  favor  upon  a  sub- 
sequent appeal,  where  the  missing  proof  has 
been  supplied.  Terre  Haute  &  I.  R.  Co.  v. 
Zehner,  3:  277,  70  N.  E.  169,  166  Ind.  149. 

1660.  A  ruling  by  an  appellate  court  that 
there  is  evidence  to  take  the  case  to  the 
jury   under   the   issues   as   presented   is   the 

.  law  of  the  case  on  a  second  appeal.  White 
v.  International  Text-Book  Co.  42:  346,  136 
N.  W.  121,  156  Iowa,  210. 

1661.  Refusal  of  the  court  to  allow  a  claim 
against  an  estate  cannot  be  complained  of 
on  appeal,  where  such  relief  is  not  prayed 
for,  on  a  fair  construction  of  the  bill,  and 
the  issues  arising  under  it  were  determined 
on  a  former  appeal.  Brown  v.  Cresap,  9: 
997,  56  S.  E.  603,  61  VV.  Va.  315. 

1662.  A  ruling  upon  a  complaint  filed  to 
compel  specific  performance  of  a  contract  to 
devise  real  estate  does  not,  under  the  rule 
of  the  law  of  the  case,  preclude  a  defense 
of  fraud  in  procuring  title  thereto,  to  a 
cross-complaint  in  the  action  to  quiet  title 
to  the  property.  Flood  v.  Templeton,  13: 
579,  92  Pac.  78,  152  Cal.  148. 

1663.  A  ruling  by  an  appellate  court  that 
in  assessing  benefits  for  a  change  in  a  high- 
way, the  court  should  have  considered  the 
history  of  the  change,  the  fact  that  the  mu- 
nicipality contemplated  the  change  made, 
and  its  effect  upon  abutting  property,  is 
the  law  of  the  case  upon  a  second  appeal. 
Park  City  Yacht  Club  v.  Bridgeport,  39: 
478,  82  Atl.  1035,  85  Conn.  366. 

1664.  The  decision  upon  appeal  from  an 
order  continuing  or  refusing  an  interlocu- 
Digest  1-52  L.R.A.(N.S.) 


tory  injunction  is  neither  an  estoppel  nor 
the  law  of  the  case  upon  appeal  from  a  de- 
cree refusing  to  make  the  injunction  perma- 
nent. Solomon  v.  Wilmington  Sewerage  Co. 
6:  391,  55  S.  E.  300,  141  N.  C.  439. 

1605.  A  former  judgment  of  the  supreme 
court,  holding  an  indictment  sufficient  in 
substance,  is  the  law  of  the  case  and  conclu- 
sive on  a  subsequent  appeal.  State  v.  Camp- 
bell, 9:  533,  85  Pac.  784,  73  Kan.  688. 

]  660.  The  question  of  the  sufficiency  of  the 
information  may  be  regarded  as  res  judicata 
upon  a  second  appeal,  where,  upon  the  first 
one,  the  cotirt  held  that  defendant  might 
be  found  guilty,  and  remanded  the  case  for 
retrial  upon  it.  Montgomery  v.  State,  18: 
339,  116  X.  W.  876,  136  Wis.  119. 
I^iability  for  acts  done  in  accordance 
■with. 

1667.  The  reversal  of  a  judgment  awarding 
an  appropriator  a  certain  number  of  inches 
of  water  from  a  stream  does  not,  where  no 
stay  of  proceedings  is  secured  on  appeal, 
require  him  to  make  compensation  to  other 
claimants  in  tort  for  the  injury  caused  by 
the  use  by  him,  pending  the  appeal,  of  the 
quantity  awarded  him.  Porter  v.  Small, 
40:  1 197,  120  Pac.  393,  124  Pac.  649,  62  Or. 
574.  (Annotated) 

/.  Correction. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Vacation  of  judgment  after  term  for  death 
of  party  before  cause  was  submitted, 
see  Judgment,  338,  339. 

1668.  An  appellate  court  may,  on  a  second 
appeal,  correct  the  entry  o'f  the  former 
judgment  so  as  to  make  it  express  the  true 
decision  of  the  case.  Durham  v.  Eno  Cot- 
ton Mills,  11:  1 163,  57  S.  E.  465,  144  N.  C. 
705. 

IX.  Rehearing. 

(See    also    same   heading   in   Digest   L.R.A. 

1-10.) 

See  also  supra,  1642. 

1669.  It  is  not  ground  for  rehearing  that 
the  supreme  court  erroneously  took  jurisdic- 
tion by  transfer  of  a  case  decided  by  the 
appellate  court.  Marion  Trust  Co.  v.  Blish, 
18:  347,  84  N.  E.  814,  170  Ind.  686. 

1670.  A  motion  to  reconsider  the  opinion 
before  it  is  certified  down  may  be  enter- 
tained by  the  supreme  court  in  a  criminal 
case,  although  a  petition  to  rehear  the  ap- 
peal cannot  be.  State  v.  Ice  &  Fuel  Co. 
52:  216,  81  S.  E.  737,  166  N.  C.  366. 

X.  Liabilitij  on  appeal  bond. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

,  Matters  as  to  security  generally,  see  supra, 
HI.  g. 


1C8 


APPEARANCE. 


Validity  of  appeal  bond  within  statute  of 
frauds,   see   Coxtkacts,   283. 

Injunction  ag£unst  enforcement  of  judgment 
upon  appeal  bond,  see  Injuxciion,  27!). 

Release  of  surety  on  appeal  bond,  see  Pkix- 

CIPAL  AND  SUUEl'Y,  29. 

Subrogation  of  surety  on  supersedeas  bond, 

see   StTBEOGATION,  25. 

1671.  That  an  appeal  bond  prepared  on  a 
printed  form,  the  penalty  of  which  is  the 
minimum  provided  for  an  appeal  merely, 
contains  words  making  it  a  supersedeas 
bond  also,  will  not  vitiate  it,  where  no  at- 
tempt has  been  made  to  use  it  as  such,  but 
the  latter  words  will  be  rejected  as  an  in- 
advertence. Douglas  V.  Badger  State  Mine, 
4:  196,  83  Pac.  178,  41  Wash.  266. 
Amonnt  of  liability. 

1672.  An  undertaking  upon  appeal  from 
a  decree  awarding  the  right  to  use  a  certain 
quantity  of  water  from  a  stream,  which 
binds  appellant  to  pay  all  damages,  costs, 
and  disbursements  which  may  be  awarded 
against  him,  does  not  cover  the  loss  which 
the  prevailing  party  would  suft'er  if  he  re- 
frained from  the  use  of  the  water  awarded 
him  pending  appeal.  Porter  v.  Small,  40: 
H97,  120  Pac.  393,  124  Pac.  649,  62  Or. 
574. 


APPEARANCE. 


On  appeal,  see  Appeal  and  Error,  III.  e. 

What  reviewable  on  appeal  from  judgment 
jurisdiction  to  enter  which  under  spe- 
cial appearance  is  questioned,  see  Ap- 
PPEAL  AjiD  Error,  488. 

Of  owner  of  stock  in  insolvent  building  and 
loan  association,  see  Building  and 
Loan  Associations,  25. 

Opinion  evidence  as  to,  see  Evidence,  VII. 
1. 

To  resist  nunc  pro  tunc  entry  of  judgment, 
see  Judgment,  61. 

To  set  aside  judgment  for  lack  of  juris- 
diction, see  Judgment,  134. 

Effect  of  decree  reciting  appearance  of  all 
adult  defendants  on  rights  of  nonresi- 
dent not  actually  appearing,  see  Judg- 
ment, 228. 

Necessity  of,  to  validate  judgment,  see 
Judgment,  I.  c,  2. 

1.  The  appearance  of  a  nonresident  de- 
fendant in  an  action  after  the  limitation 
period  has  run  will  not  deprive  plaintiff 
of  the  right  to  a  judgment  against  property 
which  he  attached  within  the  limitation 
period,  although  defendant  is  no  longer  sub- 
ject to  a  personal  judgment.  Slater  v. 
Roche,  28:  702,  126  N.  W.  925,  148  Iowa, 
413. 

What  constitutes;  sufficiency. 

2.  Where  the  jurisdiction  of  the  court 
over  the  person  of  the  defendant  is  chal- 
lenged under  a  special  appearance  made 
pending  the  action  and  before  judgment, 
the  same  is  not  a  general  appearance,  and 
a  judgment  entered  by  default  is  valid. 
Digest  1-52  Ii.R.A.(N.S.) 


Goldstein   v.    Peter    Fo.x    Sons   Co.   40:  566, 
135  N.   W.   180,  z-Z   X.  D.   636. 

3.  Acceptance  of  notice  to  take  deposi- 
tions, by  a  nonresident  defendant  not  served 
with  process,  does  not  amount  to  a  volun- 
tary appearance  in  the  action.  White  v. 
White,  24:1279,  66  S.  E.  2,  66  W.  Va.  79, 

4.  A  nonresident  defendant  in  an  equit- 
able action  for  the  partition  of  lands,  who 
was  not  served  with  process  will  not  be 
held  to  have  appeared  because  pleas  were 
filed  purporting  to  have  been  filed  by  defend- 
ants generally.  White  v.  White,  24:  1279, 
66  S.  E.  2,  66  W.  Va.  79. 

5.  If  defendant  appeals  from  a  judg- 
ment in  which  jurisdiction  was  not  secured 
over  him,  he  enters  his  appearance,  so  that, 
upon  return  of  the  case  to  the  trial  court, 
it  will  have  jurisdiction  over  him.  Foster- 
Milburn  Co.  v.  Chinn,  34:  1137,  120  S.  W. 
304,  134  Ky.  424. 

As  -waiver  of  process,  defects,  or  ob- 
jections. 

Effect  of  appeal  by  one  appearing  solely  for 
purpose  of  challenging  service,  see 
Appeal  and  Error,  101. 

6.  Appearance  and  pleading  to  the  mer- 
its is  not  a  waiver  of  service  or  jurisdiction, 
where  the  defendant  moves  to  dismiss  the 
case  for  want  of  service,  and  pleads  to  the 
jurisdiction  at  the  time  of  filing  his  defense. 
Stallings  v.  Stallings,  9:  593,  56  S.  E.  469, 
127  Ga.  464. 

7.  If  a  defendant  who  was  not  efficient- 
ly served  with  the  summons  in  the  action 
appears  solely  to  question  the  jurisdiction 
of  the  court  as  to  his  person,  and,  after 
his  plea  is  overruled,  submits  to  a  trial 
upon  the  merits,  he  thereby  waives  the 
question  of  want  of  jurisdiction.  Corbett 
v.  Physicians'  Casualty  Asso.  16:  177,  115 
N.  W.  365,   135  Wis.  505.  (Annotated) 

8.  A  defendant,  in  order  to  preserve  his 
status  as  not  having  been  properly  served 
with  a  summons,  must  abstain  from  mak- 
ing any  appearance  in  the  action  other  than 
to  raise  the  question  of  jurisdiction  of  his 
person.  Corbett  v.  Physicians'  Casualty 
Asso.  16:  177,  115  N.  W. '365,  135  Wis.  505. 

9.  The  rule  that  a  party  who  goes  to 
trial  upon  the  merits  after  an  adverse  rul- 
ing on  his  objection  to  the  jurisdiction  for 
want  of  an  eflicient  service  of  the  summons 
waives  the  question  of  jurisdiction  is  appli- 
cable, although  he  participated  in  the  trial 
under  protest,  and  notwithstanding  a  plea 
that  the  right  further  to  insist  upon  the 
jurisdictional  defect  is  not  waived.  Corbett 
V.  Physicians'  Casualty  Asso.  16:  177,  115 
N.  W.  365,  135  Wis.  505. 

10.  Appearance  in  a  contempt  proceed- 
ing waives  failure  to  serve  the  citation  be- 
fore the  return  day.  Poindexter  v.  State, 
46:  517,  159  S.  W.  197,  109  Ark.  179. 

11.  Defective  service  of  process  is  waived 
by  pleading  to  the  merits.  Springfield 
Shingle  Co.  v.  Edgecomb  Mill  Co.  35:  258, 
101   Pac.  233,  52  Wash.  620. 

12.  The  appearance  of  the  parties  and 
trial  of  the  cause  before  a  circuit  court 
which  has  jurisdiction  of  the  subject-mat- 
ter  waives  a  defect  in  the  appeal   from  a 


APPELLATE  COURT— APPORTIONMENT. 


169 


lower  tribunal.  Manvifacturer's  &  M.  In- 
spection Bureau  v.  Everwear  Hosiery  Co. 
42:  847,  138  N.  W.  624,  152  Wis.  73. 

13.  The  appearance  of  defendant  by 
counsel  on  the  return  day  of  the  summons 
in  a  justices'  court,  and  his  consent  to  the 
case  being  set  down  for  trial  on  a  day  cer- 
tain, waives  the  objection  that  the  case  was 
made  returnable  in  less  time  than  that  pre- 
scribed by  statute.  Fanton  v.  Bvrum,  34: 
501,    128   N.   W.   325,   26    S.   D.    366. 

14.  Personal  service  of  notice  of  a  pe- 
tition for  alimony  is  not  necessary  to  sup- 
port a  decree,  where  the  one  against  whom 
it  is  rendered  has  entered  an  appearance 
in  the  divorce  proceeding.  Wells  v.  Wells, 
35:  561,  95  N.  E.  845,  209  Mass.  282. 

15.  A  railroad  company  cannot,  upon  a 
review  of  an  order  of  the  state  corporation 
commission  by  the  suprem'^  court,  object  for 
the  first  time  in  the  supreme  court  i  ^  the 
failure  of  the  commission  to  serve  upon  it 
copies  of  the  petitions  or  complaints  upon 
which  the  action  was  based,  as  by  its  gen- 
eral   appearance    without    objection    before 

he  commission  it  waived  all  irregularity 
preceding  such  hearing.  Seward  v.  Denver 
&  R.  G.  R.  Co.  46:  242,  131  Pac.  980,  17  N. 
M.  557. 

EfiPect  to  give  jurisdiction. 
Sec  also  supra,  5. 

16.  A  general  appearance  in  an  action  in 
8upjX)rt  of  a  motion  to  set  aside  the  judg- 
ment does  not  waive  the  question  of  juris- 
diction. Bennett  v.  Sunreme  Tent,  K.  of  M. 
2:  389,  82  Pac.  744,  40  Wash.  431. 

17.  A  court  of  general  jurisdiction  with 
power  to  grant  writs  of  mandamus  has 
jurisdiction  of  a  proceeding  to  compel  a 
school  board  to  admit  a  pupil  to  school,  and 
of  the  persons  of  defendants  if  process  is 
served  on  them  and  they  appear  in  the  ac- 
tion. Crawford  v.  District  School  Bd. 
50:  147,  137  Pac.  217,  68  Or.  388. 

18.  Appearance  of  the  parties  in  a  di- 
vorce proceeding  does  not  remedy  failure 
to  allege  residence  for  the  time  which  the 
statute  makes  necessary  to  confer  jurisdic- 
tion. Holton  V.  Holton,  48:  779,  129  Pac. 
532,   64   Or.   290. 

19.  One  against  whom  a  judgment  is  en- 
tered without  jurisdiction  of  his  person  sub- 
mits himself  to  the  jurisdiction  of  the  court 
by  appearing  for  the  purpose  of  quashing  a 
garnishment  proceeding  to  subject  his  prop- 
erty to  tlie  satisfaction  of  the  judgment, 
and  to  contest  a  motion  to  amejul  the  re- 
turn of  service,  anfl,  although  his  motion 
to  quash  the  judgment  is  granted,  he  may 
be  required  to  plead  to  the  complaint. 
Stubbs  v.  McGillis,  18:  405,  96  Pac.  1005,  44 
Colo.   138. 

20.  A  nonresident  defendant  over  whom 
personal  jurisdiction  has  not  been  obtained 
may  appear  specially  in  a  suit  in  a  Federal 
circuit  court  for  the  sole  purpose  of  moving 
to  quash  the  service  of  writs  of  attach- 
ment and.  garnishment  upon  its  property 
in  the  district,  on  the  ground  that  such 
property  was  not  subject  to  attachment  or 
garnishment.  Davis  v.  CLjveland,  C.  C.  & 
Digest  1-52  I<.B.A.(N.S.) 


I  St.  L.  R.  Co.  27:  823,  30  Sup.  Ct.  Rep.  463, 
217  U.  S.   157,  54  L.  ed.  708. 

21.  The  appearance  of  a  nonresident  de- 
fendant in  an  action  commenced  by  attach- 
ment, after  the  limitation  period  has 
elapsed,  does  not  authorize  a  personal  judg- 
ment  against   him,   where   process   was   not 

'  served  upon  him  within  the  limitation 
period.  Slater  v.  Roche,  28:  702,  126  N. 
W.  925,  148  Iowa,  413. 

♦  »  » 


APPEIiLATE  COURT. 

Original  jurisdiction  of,  see  Courts,  II.  a,  2. 

0  «  » 

APPENDICITIS. 

As  accident,  see  Insurance,  739,  740. 


APPUANCES. 


Master's  duty  as  to,  see  Master  and  Serv- 
ant, 11.  a,  4. 


APPLICATION. 


Of  deposit,  see  Banks,  IV.  a,  2. 

For  insurance,  see  Insurance,  III.  e,  V.  b. 

Of  payments,  see  Payment,  IV. 


APPOINTMENT. 


\ 


To  office,  see  Civil  Service,  1;  Oiticers,  I. 
b. 

Of  personal  representative,  see  Executors 
AND  Administrators,  I. 

Of  guardian,  see  Guardian  and  Ward,  I. 

Of  committee  for  insane  person,  see  In- 
competent Persons,  35. 

Of  judges,  see  Judges,  II. 

Of  receiver,  see  Receivers,  I. 

Of  trustee,  see  Trusts,  II.  a. 

Power  of,  see  Powers. 


APPORTIONMENT. 

Of  annuity,  see  Annuities,  3,  4. 

Of  costs,  see  Costs  and  Fees,  13-18. 

Of  damages,  see  Damages,  III.  u. 

Of  loss  between  insurers,  see  Insurance, 
VI.  g. 

Of  state  into  election  districts,  see  Limita- 
tion OF  Actions,  62. 

Of  public  improvement  assessments,  see 
Public  Improvements,  III.  e. 


170 


APPRAISAL— APPKOPKIATIONS. 


APPRAISAL. 

In  eminent  domain  proceedings,  Bee  Emi- 
nent Domain,  122. 

Of  public  service  property  for  purpose  of 
fixing  rates,  see  Gas,  30-52. 

Of  insurance  loss,  see  Insurance,  VI. 

Of  water  works  plant  which  city  has  elected 
to  purchase,  see  Municipal  Cokpoba- 
TIONS,  300. 

See  also  i^BixBATioN. 


APPRENTICES. 


Evidence  as  to  damage  from  negligent  kill- 
ing of,  see  Evidence,  1727. 

Necessity  of  procuring  license,  see  License, 
74. 

Rights  of,  as  employee,  see  Masteh  and 
Servant,  66. 

In  barber  shops,  see  Statutes,  117. 


APPROACHES. 


To  railroad  station,  safety  of,  see  Carriers, 

II.  1. 
To    bridge,    see    Eminent    Domain,    201; 

Highways,  126. 


APPROPRIATIONS. 

Agreement  of  one  entitled  to,  to  accept  less 
than  amount  named  in  appropriation 
bill,  see  Contracts,  523;  Officers,  80. 

Judicial   review    of    appropriation   act,    see 
Courts,  110,  111. 
•  Mandamus  to  compel  payment  of,  see  Man- 
damus, 27. 

Attacking  validity  of,  in  mandamus  pro- 
ceeding, see  Mandamus,  132,  133. 

Of  public  money,  for  what  purposes  allowed, 
see  Public  Moneys. 

1.  Under  a  constitutional  provision 
that  no  money  shall  be  paid  out  of  the 
state  treasury  except  in  pursuance  of  an 
appropriation,  nor  unless  such  payments  be 
made  within  two  and  one-half  years  aftei" 
the  passage  of  the  appropriation  act,  ap- 
propriations are  eflfective  only  for  two  and 
one-half  years  after  the  making  thereof. 
Menefee  v.  Askew,  27:  537,  107  Pac.  159, 
25  Okla.  623. 

Wliat  constitntes;  form;  sufficiency. 

2.  In  Oklahoma  an  appropriation  is  an 
authority  from  the  legislature,  given  at  the 
proper  time  and  in  legal  form,  to  the  prop- 
er ofRcers,  to  apply  a  distinctly  specified 
sum  from  a  designated  fund  out  of  the 
treasury,  in  a  given  year,  for  a  specified 
object  or  demand  against  the  state.  Mene- 
fee V.  Askew,  27:  537,  107  Pac.  159,  25  Okla. 
623. 

3.  A  statute  creating  a  state  game  pro- 
Digest  1-52  I<.R.A.(N.S.) 


1  tection  fund,  and  providing  that  the  state 
game  and  fish  warden  shall  be  reimbursed 
therefrom  "for  his  actual  and  necessary  of- 
fice expenses"  without  stating  the  amount 
set  aside  therefor,  does  not  constitute  a 
valid  appropriation  for  the  payment  of  such 
expenses  under  a  constitutional  provision 
that  no  state  funds  shall  be  paid  out  ex- 
cept in  pursuance  of  an  appropriation  by 
law,  wliicli  law  shall  distinctly  specify  the 
amount  appropriated.  Menefee  v.  Askew, 
27:  537,    107    Pac.    159,   25   Okla.   623. 

4.  A  statute  creating  a  state  game  pro- 
tection fund,  and  providing  that  the  state 
game  and  fish  warden  shall  receive  an  an- 
nual specified  salary  and  traveling  expenses, 
not  exceeding  a  specified  sum  per  year,  and 
that  a  specified  number  of  deputy  game  and 
fish  wardens  shall  receive  stated  salaries 
and  expenses,  not  to  exceed  specified  sums, 
to  be  paid  monthly  therefrom,  constitutes  a 
valid  appropriation  for  the  payment  of  such 
salaries  and  expenses,  under  a  constitu- 
tional provision  that  no  state  funds  shall 
be  paid  out  except  in  pursuance  of  an  ap- 
propriation by  law,  which  law  shall  dis- 
tinctly specify  the  sum  appropriated  and 
the  object  to  which  it  is  to  be  applied. 
Menefee  v.  Askew,  27:  537,  107  Pac.  159, 
25   Okla.   623.  (Annotated) 

5.  To  make  an  appropriation  under  a 
constitutional  provision  that  no  money 
shall  be  paid  out  of  the  state  treasury  ex- 
cept in  pursuance  of  an  appropriation  by 
law  distinctly  specifying  the  sum  appro- 
priated and  the  object  to  which  it  is  to  be 
applied,  no  arbitrary  form  of  expression  or 
particular  words  are  required,  it  being  suf- 
ficient if  the  language  employed  reasonably 
leads  to  the  belief  that  it  was  the  intention 
of  the  legislature  to  make  an  appropriation. 
Menefee  v.  Askew,  27:  537,  107  Pac.  159, 
25  Okla.  623. 

6.  An  appropriation,  within  the  mean- 
ing of  a  constitutional  provision  that  no 
money  shall  be  drawn  from  the  state  treas- 
ury except  in  pursuance  of  appropriations, 
is  eflfected  by  a  statute  directing  that  vouch- 
ers issued  to  pensioners  shall  be  paid  out 
of  the  treasury  upon  the  warrant  of  the 
auditor,  who  is  directed  to  issue  his  war- 
rant to  each  person  for  the  amount  of  his 
claim.  Bosworth  v.  Harp,  45:  692,  157  S. 
W.  1084,  154  Ky.  559. 

7.  An  appropriation  for  the  expenses 
of  a  public  official  is  not  sufficient  which 
states  that  they  shall  be  paid,  but  speci- 
fies no  maximum  or  other  amount  in  con- 
nection with  them.  State  ex  rel.  Davis  v. 
Eggers,   16:  630,  91   Pac.  819,  29  Nev.  4G«. 

(Annotated) 

8.  A  sufficient  appropriation  to  author- 
ize the  payment  of  a  salary  of  a  state  of- 
ficial is  made  by  an  act  declaring  that  he 
shall  be  entitled  to  certain  compensation, 
to  be  paid  out  of  the  state  treasury  at  cer- 
tain times,  taken  in  connection  with  a  gen- 
eral statute  providing  that  all  officers  whose 
salaries  are  fixed  by  law  shall  be  entitled 
to  receive  the  same  on  the  first  of  each 
month,  and  that  the  state  comptroller  shall 
draw   his   warrant   and   the   treasurer   shall 


APPROVAI^-ARBITRATION,  I. 


171 


pay  the  same.     State  ex  rel.  Davis  v.  Eg- 
gers,  i6:  630,  91  Pac.  819,  29  Nev.  469. 

(Annotated) 
9.  A  provision  in  a  statute  providing 
for  three  tax  commissioners,  that  "each  of 
said  commissioners  shall  receive  an  annual 
salary  of  $3,000,  payable  in  the  same  manner 
as  the  salaries  of  other  state  officers  are 
paid,"  is  a  valid  annual  appropriation  of 
$9,000,  especially  vk^here  there  is  another 
statutory  provision  appropriating  annually 
out  of  "any  funds  in  the  state  treasury  not 
otherwise  appropriated  such  sums  as  may 
be  necessary  to  pay  the  salaries  of  the 
various  state  officers."  State  ex  rel.  Bird- 
zell  V.  Jorgenson,  49:  67,  142  N.  W.  450, 
25  N.  D.  539.  (Annotated) 

10.  Section  8  of  chapter  303  of  the  North 
Dakota  Laws  of  1911,  which  provides  that 
the  commission  thereby  created  sliali  keep 
its  office  at  the  capitol,  and  "shall  be  pro- 
vided with  suitable  rooms,  necessary  office 
furniture,  supplies,  stationery,  books,  period- 
icals, and  maps.  .  .  .  The  commission- 
ers, secretary,  and  clerks,  and  such  experts 
and  assistants  as  may  be  employed  by  the 
commission,  shall  be  entitled  to  receive  from 
the  state  their  actual  necessary  expenses 
while  traveling  on  business  of  the  commis- 
sion; .  .  .  but  the  total  amount  to  be 
expended  for  such  office  supplies  and  travel- 
ing expenses  shall  not  exceed  the  sum  of 
$4,500," — creates  a  valid  annual  appro- 
priation to  the  amount  of  $4,500.  State  ex 
rel.  Birdzell  v.  Jorgenson,  49:  67,  142  N.  W. 
450,  25  N.  D.  539. 

11.  Section  6  of  chapter  303  of  the  North 
Dakota  Laws  of  1911,  which  provides  that 
"the  commissioners  first  appointed  under 
this  act',  after  having  duly  qualified,  shall 
without  delay  meet  at  the  capital  at  Bis- 
marck and  shall  thereupon  organize  by 
electing  a  secretary,  who  shall  receive  a  sal- 
ary of  not  more  than  $2,400  per  annum," 
creates  a  valid  annual  appropriation  of 
$2,400.  State  ex  rel.  Birdzell  v.  Jorgenson, 
49:  67,   142  N.  W.  450,  25  N.  D.  539. 

12.  The  provisions  of  §  14,  chap.  303 
of  the  Laws  of  North  Dakota  1911,  creating 
a  tax  commission,  which  provides  that 
"there  is  hereby  annually  appropriated  out 
of  any  moneys  in  the  state  treasury,  not 
otherwise  appropriated,  the  sum  of  $3,000, 
or  as  much  thereof  as  may  be  needed  for 
the  purpose  of  carrying  out  the  provisions 
of  this  act,"  are  not  all  inclusive  of  the 
money  appropriated  for  such  commission, 
but  create  a  valid  appropriation  of  $3,000 
to  cover  incidental  expenses  of  the  commis- 
Bion  not  expressly  provided  for  in  other  sec- 
tions of  the  act.  State  ex  rel.  Birdzell  v.  Jor- 
genson, 49:  67,  142  N.  W.  450,  25  N.  D.  539. 

13.  Section  7  of  chapter  303  of  the 
North  Dakota  Laws  of  1911,  which  provides 
that  the  commission  thereby  created  may,  in 
addition  to  secretary  provided  for  in  §  6 
of  the  act,  "also  employ  such  other  persons 
as  clerks,  stenographers,  and  experts  as  may 
be  necessary  for  the  performance  of  the 
duties  required  of  the  commission.  The 
commission  shall  fix  the  compensation  of 
such  secretary,  clerks,  stenographers,  and 
Digest   1-52  L.R.A.(N.S.) 


experts  employed  by  them,  but  the  total 
amount  expended  for  that  purpose  shall  not 
exceed  $6,000  per  annum," — constitutes  a 
valid  annual  appropriation  of  $6,000. 
State  ex  rel.  Birdzell  v.  Jorgenson,  49:  67, 
142   N.    W.   450,   25   N.    D.    539. 

14.  A  statutory  provision  that  a  speci- 
fied officer  shall  be  paid  a  salary  not  to  ex- 
ceed a  certain  amount  per  year  is  not  a 
continuing  appropriation  of  money  to  pay 
it,  so  as  to  satisfy  the  requirements  of  a 
statute  forbidding  the  payment  of  money 
from  the  public  treasury  except  upon  ap- 
propriations made  bv  law.  Leddy  v.  Cor- 
nell, 38:  918,  120  Pac.  153,  52  Colo.  189. 
Power  of  executive  to  veto  or  reduce 

items  of. 

15.  The  governor,  of  West  Virginia  can- 
not veto  a  general  appropriation  bill  or  an 
item  in  it  after  the  adjournment  of  the 
legislature.  Woodall  v.  Darst,  44:  83,  77  S. 
E.  264,  71  W.  Va.  350. 


APPROVAL. 

Of  fire  escape,  see  Bthldings,  30-32,  35. 


APPURTENANCES. 

Passing  of,  by  deed,  see  Deeds,  50-63. 

Easements  as,  see  Easements,  II.  c. 

Right  to  use  water   for   irrigation  passing 

on  foreclosure  as  easement  appurtenant 

to  land,  see  Mortgage,  126. 
What   passes   as,   on   sale   of   steamer,   see 

Sale,  7. 


ARBITRATION. 


I.  In  general,  1—6. 
II.  Arbitrators;  umpire,   7,  8. 
III.  Award,  9—15. 

Of  insurance  loss,  see  Evidence,  2429;  In- 
surance, VI.  a. 

By-law  of  board  of  trade  as  to,  see  Ex- 
changes, 5. 

Waiver  or  estoppel  by  participation  in,  see 
Insurance,  V.  b,  5,  h. 

As  to  reference  generally,  see  Reference. 

I.  In  general. 

(See   aUo   same  heading  in   Digest  L.R.A. 

1-10.) 

Status  of  certifying  architect  as  arbitrator 
between  building  owner  and  contractor, 
see  ARCHiTEcrrs,  3. 

Awarding  of  attorneys'  fees  by,  see  Attor- 
neys, 61. 

Agreement   for. 

Revival  of  action  under  stipulation  in  agree- 
ment for,  see  Abatement  and  Revival, 
35. 

Proceeding  to  set  aside  umpire's  decision 
made  final  by  contract  as  condition 
precedent  to  action  on  contract,  see 
Action  or  Suit,  7. 


172 


ARBITRATION,  II.,  III. 


Oral   agreement   for,    see    Contbacts,   261, 

202. 
Validity  of  agreement  for,  see  Contracts, 

441,  461. 

1.  A  contract  for  the  appraisement  of 
a  stock  of  merchandise  "at  the  invoice  pur- 
chase price"  means  that  the  goods  are  to 
be  appraised  at  what  was  paid  for  them 
when  they  were  bought,  not  at  what  it 
would  cost  to  buy  them  from  wholesalers 
at  the  time  of  the  appraisement.  Swisher 
V.  Dunn,  45:  810,  131  Pac.  571,  132  Pac. 
832,  89  Kan.   412,   787. 

2.  A  general  stipulation  in  a  contract 
of  lease  that,  in  case  of  difference  between 
the  parties,  it  shall  be  referred  to  arbitra- 
tion, does  not  prevent  either  party  from  re- 
sorting to  the  courts  in  the  first  instance 
without  such  reference  unless  the  stipula- 
tion makes  such  submission  the  only  mode 
by  which  the  amount  of  damages  may  be  as- 
certained or  by  which  liabilitv  can  be  fixed. 
Lawrence  v.  White,  19:966, '63  S.  E.  631, 
131  Ga.  840. 

3.  A  provision  in  a  building  contract 
for  arbitration  of  any  damage  through  de- 
fault in  promptly  finishing  the  work  does 
not  apply  to  defaults  due  to  failure  of  the 
architect  to  furnish  the  plans  and  designate 
materials,  and  in  furnishing  improper  plans. 
Hunn  V.  Pennsylvania  Inst,  for  Blind,  18: 
1248,  70  Atl.  812,  221  Pa.  403.  (Annotated) 
Revocation  of  submission. 

4.  The  mere  issuance  of  a  summons 
upon  a  cause  of  action  which  has  been 
submitted  to  arbitration  does  not  affect 
a  revocation  of  the  arbitration,  where 
neither  a  complaint  nor  other  paper  giving 
notic-  of  the  character  of  the  action  is 
filed  until  after  the  award  is  made.  Wil- 
liams V.  Branning  Mfg.  Co.  31:  679,  68 
S.  E.  902,  153  N.  C.  7.  (Annotated) 

5.  One  of  the  parties  to  a  building  con- 
tract which  provides  that  all  matters  in  dis- 
pute shall  be  submitted  to  an  arbitrator 
cannot  revoke  his  authority  when,  through 
mistake,  he  has  failed  to  consider  and  de- 
cide a  part  of  the  dispute  submitted  to  him, 
and  an  action  on  the  award  has  failed  on 
that  account;  but  he  may  proceed  to  rehear 
and  decide  the  matter  still  in  dispute. 
Frederick  v.  Margvvarth,  18:  1246,  70  Atl. 
797,    221    Pa.   418.  (Annotated) 

6.  When  the  court,  in  setting  aside  an 
award,  directs  the  case  to  be  referred  back 
to  the  arbitrators  for  another  award,  nei- 
ther party  can  afterward  withdraw  from 
the  arbitration  without  consent  of  the  court. 
McCann  v.  x\laska  Lumber  Co.  43:  711,  128 
Pac.  663,  71  Wash.  331.  (Annotated) 

II.  Arbitrators;   umpire. 

(See  also   same  heading  in  Digest  L.R.A, 

1-10.) 

Competency  of  commissioner  in  condemna- 
tion proceedings,  see  Eminent  Do- 
main, 160,  161. 

7.  It  is  not  necessary  that  there  should 
be  a  formulated  dispute,  in  order  to  clothe 
with  the  duties  and  to  invest  with  the  im- 
Digest  1-52  I..R.A.(N.S.) 


munities  of  an  arbitrator  a  person  who  by 
agreement  is  to  ascertain  what  one  party 
is  to  pay  and  the  otlier  party  has  a  right 
to  be  paid  in  respect  of  a  certain  matter. 
Chambers  v.  Goldthorpe,  4  B.  R.  C.  833, 
[1901]  1  K.  B,  024.  Also  reported  in  70 
L.  J.  K.  B.  N.  S.  482,  49  Week.  Rep.  401, 
84  L.  T.  N.  S.  444,  17  Times  L.  R.  304. 
Liability   for  negligence. 

8.  A  surveyor  to  whose  judgment  a  tim- 
ber owner  and  one  who  has  contracted  to 
cut  it  at  a  certain  amount  per  thousand 
feet  have  submitted  the  scaling  of  the  logs 
cut,  which  judgment  is  to  be  final  and  con- 
clusive between  the  parties,  is  not  liable  in 
damages  for  the  negligent  performance  of 
his  duty.  Hutchins  v.  Merrill,  42:  277,  84 
Atl,  412,  109  Me.  313.  (Annotated) 

III.  Award. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Award  of  commissioners  in  condemnation 
proceedings,  see  Eminent  Domain,  II; 
c,  2. 

Binding  effect  on  mortgagee  of  award  of  ap- 
praiser, see  Insurance,  668-670. 

Interest  on  award,  see  Interest,  28,  29. 

Validity. 

9.  No  valid  award  can  be  made  without 
notice  to  the  parties  of  the  selection  of  tlie 
third  arbitrator  and  of  the  time  and  place 
of  meeting  to  make  the  award,  where  arbi- 
trators who  have  failed  to  agree  select  a 
third  arbitrator  in  accordance  with  the 
terms  of  the  arbitration  agreement.  Bray 
v.  Staples,  19:  696,  62  S.  E.  780,  149  N.  C. 
89.  (Annotated) 

10.  The  valuation  of  a  waterworks 
plant,  made  by  a  board  of  appraisers  where 
a  municipality  has  elected,  under  legis- 
lative authority,  to  exercise  its  option  to 
purchase  at  a  value  to  be  determined  by 
three  engineers,  one  each  to  be  selected  by 
the  city  by  the  waterworks  company,  and 
the  third  by  the  two  so  selected,  is  not 
vitiated,  in  the  absence  of  any  evidence 
of  actual  bad  faith,  by  the  examination  of 
the  company's  books  by  the"  appraisers 
without  the  consent  of  the  city,  or  the 
presence  of  its  representatives,  since  the 
strict  rules  relating  to  arbitration  and 
awards  do  not  apply.  Omaha  v.  Omaha 
Water  Co.  48:  1084,  30  Sup.  Ct.  Rep.  615, 
218  U.  S.   180,  54  L.  ed.   991. 

11.  The  appraisal  of  a  waterworks  plant 
where  a  municipality  elects,  under  legisla- 
tive authority,  to  exercise  its  option  to 
purchase  at  a  value  to  be  determined  by 
three  engineers,  one  each  to  be  selected  by 
the  city  and  the  waterworks  company,  and 
the  third  by  the  two  ao  selected,  is  a  mat- 
ter of  public  concern,  and  unanimity  among 
the  appraisers  is  therefore  unnecessary,  the 
decision  of  the  majority  being  suflicient. 
Omaha  v.  Omaha  Water  Co.  48:1084,  30 
Sup.  Ct.  Rep.  615,  218  U.  S.  180,  54  L.  ed. 
991. 


ARCHITECT. 


173 


Conclusiveness. 

Review  on  appeal  of  order  setting  aside 
award  of  commissioners  in  condemna- 
tion proceedings,  see  Appeal  and  Er- 
ror, 564. 

Provision  that  no  agreement  tliat  award 
shall  be  final  shall  oust  jurisdiction  of 
courts,  see  Constitutional  Law,  455. 

Conclusiveness  of  certificate  of  performance 
of  contract,  see  Contracts,  677-685. 

Court's  power  to  set  aside  award,  see 
Courts,  3. 

Review  by  courts  of  award  of  arbitrators, 
see  Courts,  172. 

Extent  of  jurisdiction  in  equity  in  suit  to 
set  aside  award,  see  Equity,  114. 

12.  Where  appraisers  appointed  to  ap- 
praise a  stock  of  merchandise  upon  a  sale 
thereof  at  what  had  been  paid  for  the  goods, 
under  a  misapprehension  as  to  the  meaning 
of  the  language  used  in  the  contract,  ap- 
praised the  goods  at  what  it  would  cost  to 
buy  them  from  wholesalers  at  the  time  of 
the  appraisement,  their  award  is  not  bind- 
ing. Swisher  v.  Dunn,  45:  810,  131  Pac. 
571,   132  Pac.  822,  89  Kan.  412,  787. 

13.  An  award  cannot  be  attacked  be- 
cause not  warranted  by  the  terms  of  the 
submission,  by  one  who  has  admitted  of 
record  that  the  award  passed  upon  the  mat- 
ters submitted.  Williams  v.  Branning  Mfg. 
Co.  31:  679,  68  S.  E.  902,  153  N.  C.  7. 

14.  A  provision  of  a  contract  for  the  or- 
namental work  of  a  building,  that  any  dis- 
pute as  to  the  true  meaning  of  the  drawings 
and  specifications  shall  be  decided  by  the  ar- 
chitect, whose  decision  shall  be  conclusive, 
docs  not  make  binding  an  award  based  upon 
his  including  in  the  contract  matters  which 
are  not  part  of  it,  and  excluding  therefrom 
matters  which'  are  a  part  of  it.  Snead  & 
Co.  Iron  Works  v.  Merchants'  Loan  &  T.  Co. 
9:  1007,  80  N.  E.  237,  225  111.  442. 

£iFect  of  setting  aside. 
See  also  supra,  6. 

15.  The  original  rights  of  parties  who 
have  entered  into  an  arbitration  agreement 
are  not  affected  by  a  judgment  setting  aside 
an  award  because  the  arbitrators  acted  with- 
out giving  the  necessary  notice  to  the  par- 
ties. Bray  v.  Staples,  19:  696,  62  S.  E.  780, 
149  N.  C.  89. 


ARCHITECT. 


Constitutionality  of  statute  as  to  licensing 
of,  see  Constitutional  Law,  291. 

Revocation  of  license  of,  see  Constitution- 
al Law,  103,  133,  554;  License,  36; 
Statutes,  39. 

Certificate  by,  of  performance  of  contract, 
see  Contracts,  IV.  d. 

Construction  of  contract  with,  see  Con- 
tracts, 390. 

Architect's  good  faith  in  failing  to  pass 
on  plans  and  drawings  for  changes  in 
work,  see  Contracts,  638, 

Right  to  recover  on  part  performance  of 
contract,  see  Contracts,  646. 

Digest   1-52  L.R.A.(N.S.) 


Misrepresentations  as  to  ability  to  perform 
contract,  see  Contracts,  664;  Fraud 
AND  Deceit,  9. 

Liability  for  damages  occasioned  by  de- 
parture from  agreed  building  plan,  see 
Contracts,  700. 

Authority  to  change  plans,  see  Contracts, 
703. 

Reasonableness  of  custom  of,  to  retain 
plans,  see  Custom,  7. 

Measure  of  damages  for  wrongful  discharge, 
see  Damages,  204. 

Damages  for  fraud  in  securing  contract,  see 
Damages,  322. 

Admissibility  of  certificate  of,  in  evidence, 
see  Evidence,  750. 

Fraud  in  statement  as  to  costs  of  structure, 
see  FrjVud  and  Deceit,  S. 

Wife's  contract  for  services  of,  see  Hus- 
band AND  Wife,  38. 

Right  to  lien  for  services,  see  Mechanics' 
Liens,  33,  34. 

1.  One  who  has  employed  an  architect 
to  prepare  plans  for  the  alteration  of  a 
building  within  a  specified  sum  cannot  hold 
him  liable  for  damages  caused  by  the  re- 
pairs according  to  his  plan  exceeding  the 
amount  specified,  if  before  proceeding  with 
the  work  he  was  told  by  contractors  who  re- 
fused to  take  a  contract  for  the  work  at  the 
price  specified,  that  it  was  practically  im- 
possible to  estimate  with  any  degree  of  ac- 
curacy the  cost  of  construction  because  of 
market  conditions.  Benenato  v.  McDougall, 
49:  1202,  137  Pac.  8,  166  Cal.  405. 

2.  An  architect  employed  to  do  all  that 
was  necessary  to  be  done  as  an  architect  in 
designing  and  carrying  out  a  certain  build- 
ing operation,  for  an  agreed  remuneration, 
is  not  entitled  to  retain  the  plans  and  speci- 
fications prepared  by  him,  after  the  com- 
pletion of  the  work,  notwithstanding  any 
custom  to  the  contrary.  Gibbon  v.  Pease, 
3  B.  R.  C.  460  [1905]  1  K,  B.  810.  Also 
Reported  in  74  L.  J.  K.  B.  N.  S.  502,  69  J. 
P.  209,  53  Week.  Rep.  417,  92  L.  T.  N.  S. 
433,  21  Times  L.  R.  365,  3  L,  G.  R.  461. 

( Annotated ) 

3.  An  architect  employed  by  a  building 
owner  to  supervise  the  performance  of  a 
building  contract  which  pro\'ides  for  pay- 
ments on  account  of  the  price  of  the  work 
during  its  progress,  and  for  the  payment  of 
the  balance  after  its  completion,  upon  cer- 
tificates of  the  architect,  and  that  a  cer- 
tificate of  the  architect,  showing  the  final 
balance  due  or  payable  to  the  contractor, 
should  be  conclusive  evidence  of  the  work 
having  been  duly  completed  and  of  the  right 
of  the  contractor  to  receive  payment  of  the 
final  balance,  occupies  the  position  of  an 
arbitrator,  rather  than  that  of  a  real  valu- 
er, in  ascertaining  the  amount  due  to  the 
contractor  and  certifying  for  the  same  un- 
der the  contract,  and  therefore  is  not  liable 
to  an  action  by  the  building  owner  for  neg- 
ligence in  the  exercise  of  those  functions. 
Chambers  v.  Goldthorpe,  4  B.  R.  C.  833, 
[1901]   1  K.   B.  624.     Also  Reported  in  70 


174 


AREA  WAYS— ARREST. 


L.  J.  K.  B.  N.  S.  482,  49  Week.  Rep.  401, 
84  L.  T.  N.  S.  444,   17  Times  L.   K.  304. 

(Annotated) 


AREA'W^ATS. 


Under   sidewalk,   see  Estoppel,  17;    High- 
ways, 171. 


ARGUMENT. 


Of  counsel,  see  Appeal  and  Ebbob,  VII.  m, 
5;  Trial,  I.  d. 


ARM. 

Damages  for  loss  of,  see  Damages,  434. 


ARMORY. 


Liability  for  personal  injuries  in  state  ar- 
mory, see  State,  30. 
Lease  of  ctate  armory,  see  State,  30,  31. 


ARMY  AND   NAVY. 

Rond  for  proper  conduct  of  liquor  business 
on  military  reservation,  see  Bonds,  32; 
Estoppel,  170. 

Special  rate  for  transportation  of  state 
militia,  see  Cakbiers,  1029. 

Free  transportation  to  soldiers  and  sailors, 
see  Cabbieks,  1064. 

Courts  martial,  see  Coubts  Martial. 

Damages  for  excluding  petty  officer  from 
dance  hall,  see  Damages,  628. 

Habeas  corpus  to  secure  discharge  of  minor 
who  has  deserted  from  navy,  see  Ha- 
beas  Corpus,   75. 

Unlawful  sale  of  intoxicating  liquors  on 
military  reservation,  see  Intoxicating 
Liquor's,  185. 

Libel  in  report  as  to  merits  of  claim  for 
medal  of  honor,  see  Libel  and  Slan- 
der, 143,  153. 

Appropriation  to  provide  compensation  to 
injured  members  of  National  Guard, 
see  Public  Money,  16. 

Letter  written  bv  soldier  as  soldier's  will, 
see  Wills,  120,  121. 

See  also  Militia. 

1.  The  language  of  W.  Va.  Code 
1906,  chap.  18,  §  47,  relating  to  provision 
for  any  member  of  the  National  Guard  "who 
shall,  without  fault  or  neglect  on  his  part, 
be  wounded  or  disabled  while  performing 
any  lawfully  ordered  duty,"  is  sufficiently 
comprehensive  to  embrace  the  case  of  a 
member  of  the  National  Guard  who  is  in- 
jured while  going  to  the  place  of  annual 
encampment,  and  who  is  not  at  fault  when 
Digest  1-52  L.R.A.(N.S.) 


injured.     Woodall  v.  Darst,  44:  83,  77  S.  E. 
264,  71  W.  Va.  350. 


ARRAIGNMENT. 


Time  for  objection  that  accused  was  not 
arraigned,  see  Appeal  and  Erbob,  359. 

Presumption  on  appeal  as  to  arraignment 
of  accused,  see  Appeal  and  Error,  473. 

Omission  of  arraignment  in  criminal  case 
as  ground  for  reversal  of  conviction, 
see  Appeal  and  Error,  1046,  1047. 

Trial  without,  as  bar  to  prosecution,  see 
Cbiminal  Law,  190,  192,  193. 


ARREARS. 


Effect  of  payment  of,  to  reinstate  insured, 
see  Insubance,  407,  411-413. 


ARREST. 

/.  For  crime,    1—14. 

a.  In  general,  1—3. 

b.  Without    warrant,    4—14. 
II.  In  civil  cases,  15—19. 

Use  of  warrant  of,  to  extort  money,  see 
Abuse  of  Pbocess,  2. 

Probable  cause  for,  see  Appeal  and  Ebbob, 
1318;    Trial,  277. 

Effect  of  finding  on  appeal  from  joint  ver- 
dict against  municipality  and  police- 
man for  wrongful  arrest,  see  Appeal 
AND  Erbob,   1623. 

Assault  in  effecting  arrest,  see  Assault 
AND  Battery,  17. 

Assault  in  resisting,  see  Assault  and  Bat- 
tery, 35,  36;   Evidence,  749. 

Release  from,  on  bail,  see  Bail  and  Recog- 
nizance. 

Liability  on  official  bond  for  unlawful  shoot- 
ing in  making  arrest,  see  Bonds,  58, 
59,  63. 

Sheriff's  liajbility  for  injury  by  deputy  in 
making  arrest,  see  Bonds,  62. 

Of  passenger,  see  Cahbiebs,  II.  f. 

Delegating  to  clerk  of  court  power  to  issue 
warrants  of,  see  Constitutional  Law, 
137. 

By  military  authorities,  see  CoNSTiTxrnoN- 
AL  Law,  572. 

Of  convict  violating  parole,  see  Constitu- 
tional Law,  573. 

Privilege  from,  see  CoUBTS,  247,  248 ;  Wbit 
AND  Pbocess,  II.  e,  1. 

Sufficiency  of  warrant  for,  see  Criminal 
Law,  132. 

Of  judgment,  see  Cbiminal  Law,  161-166; 
New  Trial,  80. 

Punitive  damages  for,  see  Damages,  59,  60. 

Measure  of  damages  for,  see  Damages,  III. 

g- 
Recovery  for  mental   suffering  because  of, 
see  Damages,  620. 


ARREST,  I.  a,  b. 


175 


Civil  liability  for  killing  in  effecting  arrest, 
see   Death,   38;    Evidexce,   2003. 

Homicide  in  making,  see  Homicide,  76,  77; 
Trial,  932. 

Homicide  while  resisting,  see  EvIDE^fCE, 
109;   Homicide,  75,  94. 

Burden  of  showing  authority  for,  see  Evi- 
dence, 673. 

Effect  of  illegality  of  arrest  on  admissibil- 
ity of   confession,   see  Evidence,   1209. 

Wrongful  arrest  of  tenant  by  landlord's 
agent,  see  Evidence,  1427. 

Evidence  to  show  officer's  good  faith  in 
making,  see  Evidence,  1665,  1682. 

Evidence  in  mitigation  of  damages  for 
causing,   see   Evidence,   2009. 

Variance  in  action  against  sheriff  for  shoot- 
ing person  in  attempting  to  arrest  him, 
see  Evidence,  2485. 

Of  fugitive  from  justice,  see  Extradition. 

Civil  liability  for,  see  False  Imprison- 
ment; Malicious  Prosecution;  Mu- 
nicipal Corporations,  423,  424. 

Review  of,  on  habeas  corpus,  see  Habeas 
Corpus,  34-36. 

Sufficiency  of  verification  of  information  to 
justify  issue  of  warrant  of  arrest,  see 
Indictment,  etc.,  7. 

Injunction  against,  see  Injunction,  328. 

Of  guest  at  hotel,  see  Innkeepers,  30. 

Burning  of  building  by  marshal  in  effect- 
ing arrest,  see  Insurance,  691. 

Liability  for  libel  in  swearing  to  affidavit 
for,  see  Libel  and  Slander,  97. 

Ne  exeat  bond  to  secure  release  from  arrest, 
see  Ne  Exeat. 

Resisting  officer  in  making  generally,  see 
Obstructing  Justice. 

Reward  for,  see  Reward. 

/.  For  crime. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

1.  A  warrant  for  arrest  for  violation  of 
a  statute  is  not  void  because  it  recites  an 
illegal  amendment,  if  it  also  recites  a  valid 
statute  which  has  in  fact  been  violated. 
People  ex  rel.  Farrington  v.  Mensehing, 
10 :  625,  79  N.  E.  884,  187  N.  Y.  8. 

2.  When  the  conductor  of  a  train  points 
out  to  a  peace  officer  a  passenger  whom  he 
alleges  to  have  been  guilty  of  conduct  for 
which  the  statute  makes  it  such  officer's  du- 
ty to  arrest  him,  it  is  his  duty  to  make  tlie 
arrest  upon  the  verbal  demand  of  the  con- 
ductor, and  he  is  not  required  to  inquire 
into  the  guilt  or  innocence  of  the  offender. 
Com.  V.  Marcum,  24:  1194,  122  S.  W.  215, 
135  Ky.  1. 

3^.  An  actioti  cannot  be  maintained  for 
false  arrest  if  a  fine  has  been  imposed  by  a 
police  court  for  the  conduct  which  caused 
the  arrest.  Louisville  R.  Co.  v.  Hutti,  33: 
867,  133  S.  W.  200,  141  Ky.  511. 
Digest  1-52  L.R.A.(N.S.) 


b.  Without  warrant. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Liability  on  bond  of  officer,  see  Bonds,  06. 

Evidence  on  question  of  good  faith  in  mak- 
ing, see  Evidence,  1665. 

Civil  liability  for,  see  False  Imprison- 
ment. 

Homicide  in  resisting  arrest  without  war- 
rant, see  Homicide,  75. 

Statute  providing  for  arrest  without  war- 
rant, see  Search  and   Seizure,  13 

4.  An  arrest  under  a  "John  Doe"  war- 
rant by  an  officer  who  saw  the  person  ar- 
rested in  the  act  of  committing  a  crime  is 
not  illegal,  as  it  is  not  necessary,  under 
such  circumstances,  that  any  warrant 
should  have  been  issued.  State  v.  Sutter, 
43:  399,  76  S.  E.  811,  71  W.  Va.  371. 

5.  A  peace  officer  may  properly  arrest 
without  a  warrant  one  whom  he  has  prob- 
able cause  to  believe  has  committed  a  felony, 
or  who  has  actually  committed  such  an  of- 
fense. Atchison,  T.  &  S.  F.  R.  Co.  v.  Hins- 
dell,  12:  94,  90  Pac.  800,  76  Kan.  74. 

6.  The  provision  of  Ga.  Pen.  Code  1895, 
§  896,  on  the  subject  of  arrest,  applies  alike 
to  state  and  municipal  arresting  officers. 
Porter  v.  State,  2:  730,  52  S.  E.  283,  124  Ga. 
297. 

7.  A  marshal  or  policeman  may  law- 
fully arrest  without  a  warrant  an  offender 
against  a  municipal  ordinance,  who  is  at- 
tempting to  escape.  Porter  v.  State,  2: 
730,  52  S.  E.  283,  124  Ga.  297.      (Annotated) 

8.  An  arrest  without  a  warrant,  on  the 
ground  of  an  attempt  to  escape,  is  not  jus- 
tified where  the  person  sought  to  be  arrested 
by  the  marshal  is  not  shown  to  have  violat- 
ed any  municipal  ordinance  other  than  by 
proof  of  a  verbal  complaint  made  to  tlie 
marshal  by  another  person,  that  the  person 
sought  to  be  arrested  had  created  a  dis- 
turbance, whereupon  the  latter  eluded  him 
in  order  to  prevent  an  illegal  arrest.  Por- 
ter V.  State,  2:  730,  52  S.  E.  283,  124  Ga. 
297. 

9.  A  police  officer  cannot,  as  such,  justi- 
fy an  arrest  without  warrant  out  of  tiie 
limits  of  the  town  for  which  he  was  ap- 
pointed. Martin  v.  Houck,  7:  576,  54  S.  E. 
291,  141  N.  C.  317. 

10.  A  police  officer  has  no  authority  to 
arrest  without  warrant  a  woman  who  is 
walking  quietly  along  the  street  after 
emerging  from  a  disorderly  saloon  at  mid- 
night. Klein  v.  Pollard,  10:  1008,  112  N. 
W.  717,  149  Mich.  200. 

11.  One  who,  in  the  presence  of  a  public 
officer,  uses  abusive  and  threatening  lan- 
guage toward  him,  and  interferes  with  his 
performance  of  his  duties,  may  be  arrested 
bv  him  without  a  warrant.  Mvers  v.  Dunn, 
13:  881,   104  S.  W.   352,   126  Ky.  548. 

(Annotated) 

12.  A  statute  directing  the  conductor  of 
a  train  on  which  a  passenger  has  been  guilty 
of  utterrng  obscene  language  in  the  presence 
of   other    passengers,   or   of   behaving   in   a 


176 


ARREST,  II.— ARTICLES  OF  INCORPORATION. 


boisterous  manner  to  their  annoyance,  to 
notify  a  peace  officer  at  tlie  lirst  stopping 
place,  authorizes  the  arrest  of  sucli  person 
by  such  officer  without  warrant.  Com.  v. 
Marcum,  24:  1194,  122  S.  W.  216,  135  Ky. 
1. 

13.  A  private  citizen  cannot  justify  an 
arrest  without  warrant  for  the  alleged  com- 
mission of  a  felony,  unless  it  appears  that 
a  felony  was  in  fact  committed.  Martin  v. 
Houck,  7:  576,  54  S.  E.  291,  141  N.  C.  317. 

14.  Persons  assisting  a  police  officer  in 
making  an  arrest  without  a  warrant  out 
of  his  jurisdiction  cannot  justify  under  his 
authority,  since  he  has  none.  Martin  v. 
Houck,  7:  576,  54  S.  E.  291,  141  N.  C.  317. 

//.  In  civil  cases. 

(See   also  same  heading  in  Digest   L.R.A. 
1-10.) 

Privilege  from,  see  Wbit  and  Process,  II. 
d,  1. 

15.  The  statute  permitting  arrest  for 
fraud  applies  in  an  action  by  one  partner 
against  another  when,  by  reason  of  the 
character  of  the  transaction,  or  the  general 
termination  of  the  partnership  dealings,  an 
action  at -law  will  lie  against  one  partner 
ir  favor  of  the  other.  Ledford  v.  Emerson, 
4:  130,  52  S.  E.  641,  140  N.  C.  288. 

(Annotated) 

16.  The  mere  fact  that  one  arrested  for 
debt  had  filed  his  petition  in  bankruptcy 
before  his  arrest  is  not  sufficient  to  show 
that  the  arrest  was  illegal,  where  the  pend- 
ency of  the  proceedings  does  not  appear. 
Gibson  v.  Holmes,  4:  451,  62  Atl.  11,  78  Vt. 
110. 

17.  The  arrest  of  defendant  in  a  prior 
suit  upon  the  promissory  notes  which  be- 
came the  foundation  of  a  judgment,  from 
which  arrest  he  was  voluntarily  discharged, 
does  not  prevent  his  arrest  in  a  proceeding 
to  enforce  the  judgment.  Re  Morton,  11: 
J087,  81  N.  E.  869,  196  Mass.  21. 

18.  A  statute  giving  to  a  person  dis- 
charged from  arrest  on  taking  the  poor 
debtor's  oath,  exemption  from  a  second  ar- 
rest for  the  same  cause  of  action,. does  not 
apply  to  a  voluntary  discharge,  or  a  dis- 
charge after  taking  the  oath  that  defendant 
does  not  intend  to  leave  the  state.  Re  Mor- 
ton, 11:  1087,  81  N.  E.  869,  196  Mass.  21. 

19.  A  warrant  describing  defendant  as 
of  a  certain  municipality  in  a  certain  county 
located  within  the  state  is  sufficient  to  de- 
termine his  residence  within  the  United 
States,  so  as  to  entitle  him  to  the  benefit  of 
a  statutory  exemption  from  arrest  for  debt. 
Caldbeck  v.  Simanton,  20:  844,  71  Atl.  881, 
82  Vt.  69. 


ARREST  OF  JUDGMENT. 

See  Criminal  Law,  161-166;  New  Trial, 

80. 
Digest  1-52  L.R.A.(N.S.) 


ARSON. 

Effect  of  misconduct  of  juror  on  verdict  of 
conviction,  see  Appeal  and  EiuiOB, 
1505. 

Admissibility  of  confession  of  one  accused 
of,  see  Evidence,  1208. 

Sufficiency  of  proof  of  attempted  arson,  see 
Evidence,  2392. 

Libel  in  charging,  see  Libel  and  Slander, 
90. 

Competency  of  wife  as  witness  against  hus- 
band charged  with,  see  Witnesses,  36. 

1.  The  corpus  delicti  in  arson  consists 
in  proof  of  the  burning  and  of  criminal 
agency  in  causing  it.  Spears  v.  State,  16: 
285,  46  So.  166,  92  Miss.  613.      (Annotated) 

2.  The  corpus  delicti  of  arson  is  not  es- 
tablished by  merely  showing  that  a  build- 
ing has  been  burned,  but,  in  addition,  it 
must  appear  that  the  fire  was  caused  by 
the  wilful  act  of  some  person  criminally  re- 
sponsible. State  v.  Pienick,  11:  987,  90  Pac. 
645,  46  Wash.  522. 

3.  An  attempt  to  commit  arson  is  made 
by  employing  and  p&,ying  persons  to  do  fhe 
act,  furnishing  them  materials  and  a  horse, 
showing  them  how  to  start  the  fire,  and 
starting  them  on  their  way,  although  the 
persons  employed  do  not  in  fact  intend  to 
carry  out  their  agreement,  and  one  is  act- 
ing with  the  knowledge  of  the  owner  of 
the  building,  for  the  purpose  of  entrapping 
the  others.  State  v.  Taylor,  4:  417,  84  Pac. 
82,  47  Or.  455.  (Annotated) 

4.  A  storehouse  connected  by  a  cov- 
ered, but  uninclosed,  gallery  with  a  dwell- 
ing house,  is  a  part  of  the  dwelling  house, 
so  as  to  render  one  setting  fire  to  it  guilty 
of  arson  of  a  dwelling.  Spears  v.  State, 
16:  285,  46  So.  166,  92  Miss.  613. 

5.  A  house  belonging  to  a  married  wo- 
man is  the  property  of  "another"  than  her 
husband,  under  Kan.  Gen.  Stat.  1901,  §  2046, 
providing  that  any  person  burning  the  prop- 
erty of  another  shall,  on  conviction,  be  ad- 
judged guiltv  of  arson.  State  v.  Shaw,  21: 
27,  100  Pac.*78,  79  Kan.  396. 

6.  The  legal  identity  of  husband  and 
wife  does  not  prevent  a  husband  who  burns 
his  wife's  house  from  being  guilty  of  arson 
in  jurisdictions  where  the  wife  has  power  to 
possess  a  separate  estate.  State  v.  Shaw, 
21:  27,  100  Pac.  78,  79  Kan.  396. 

( Annotated ) 


ARTESIAN  VTELIiS. 

Injunction    against    interference    with,    see 

Appeal  and  Error,  802. 
Lien   for   drilling,   see   Mechanics'  Liens, 

3L 
Rights  as  to,  generally,  see  Waters,  260, 

287-289,  292. 


ARTICLES  OF  INCORPORATION. 

See  Corporations,  III. 


ARTIFICIAL  CHANNEL— ASSAULT   AND  BATTERY. 
ARTIFICIAL    CHANNEL.  ASPORTATION. 


177 


Diversion  of  water  by  municipality  through, 
see  Municipal  Corporations,  447,  448. 

Diverting  water  from  river  to,  for  improve- 
ment of  navigation,  see  Waters,  99. 


ARTIFICIAL  CONDITION. 

Duty    to    maintain    artificial    condition    of 
water,  see  Waters,  138,  139,  327-330. 


ARTIFICIAL  TEETH. 

As  necessaries,  see  Husband  and  Wife,  13. 


ARTISAN. 


Lien  of,  see  Mechanics'  Liens. 


ART  MUSEUM. 


Bequest  to,  as  one  for  charitable  purpose, 
see  Charities,  16. 


ASBESTOS. 


Lien  for,  see  Mechanics'  Liens,  35. 


ASEXUALIZATION. 


Of  criminal,  see  Criminal  Law,  243. 


ASHES. 

Liability  on  bond  of  ash  collector,  see 
Bonds,  14, 

Duty  to  put  on  icy  sidewalk,  see  Highways, 
301. 

Liability  of  city  for  negligence  in  removal 
of,  see  Municipal  Corporations,  427, 
428. 

Eight  of  municipality  to  remove,  from  res- 
idence in  absence  of  ordinance,  see  Mu- 
nicipal  Corporations,   29. 

Liability  of  city  for  dumping  into  water, 
see  Municipal  Corporations,  428. 

Injury  to  child  by  hot  ashes,  see  Negli- 
gence, 142. 

Injury  by  hot  ashes  thrown  from  engine, 
see  Railroads,  60,  91. 


ASPHYXIATION. 


Liability  for  death  by,  see  Gas,  57. 
Death  of  insured  by,  see  Insurance,  754. 
Digest  1-52  L.R.A.(N.S.) 


What  is  sufficient  asportation  to  constitute 
larceny,  see  Larceny,  11-13. 


ASSAULT   AND   BATTERY. 

/.  In   general,    1—25. 
II.  Justification;  defenses,  26—47. 

Review  of  verdict  on  appeal,  see  Appeal 
AND  Error,  902. 

Instructions,  see  Appeal  and  Error,  1344; 
Trial,  1077-1079. 

Taking  object  in  evidence  in  action  for,  in- 
to jury  room  as  prejudicial  error,  see 
Appeal  and  Error,  1504. 

Increasing  or  reducing  damages  for,  on  ap- 
peal, see  Appeal  and  Error,  1596,  1597. 

Attorney's  lien  for  services  on  client's  right 
of  action  for,  see  Attorneys,  80. 

Effect  of  discharge  in  bankruptcy  on  liabili- 
ty for,  see  Bankruptcy,  164. 

Liability  of  sureties  on  constable's  bond 
for,  see  Bonds,  67. 

On  passenger,  see  Carriers,  II.  e. 

On  judge  as  contempt,  see  Contempt,  4,  5. 

Assignment  of  right  of  action  for,  see  Con- 
tracts, 449. 

Liability  for  manslaughter  of  one  assisting 
in  assault,  see  Criminal  Law,  51. 

Conviction  of  assault  as  bar  to  prosecution 
for  murder  after  victim's  death,  see 
Criminal  Law,  214. 

Exemplary  damages  for,  see  Damages,  51- 
55,   78-81,   90. 

Measure  of  damages  for,  see  Damages,  332. 

Mental  anguish  as  element  of  damages,  see 
Damages,  622,  631,  634. 

Presumption  and  burden  of  proof,  see  Evi- 
dence, 106. 

Evidence  admissible  on  prosecution  for,  see 
Evidence,  749,  883,  1208,  1355,  1477, 
1568,  1652,  2450. 

Evidence  admissible  on  civil  trial  for,  see 
Evidence,  884,  1368,  1542,  1569-1572, 
1612,  1664,  1852,  1866,  2001,  2016. 

Prejudicial  error  in  admission  of  evidence, 
see  Appeal  and  Error,  1140. 

Prejudicial  error  in  exclusion  of  evidence, 
see  Appeal  and  Error,  1229,  1233. 

Evidence  as  to  damages  by,  see  Evidence, 
1743. 

Evidence  in  mitigation  of  damages  for,  see 
Evidence,  2011,  2012. 

Evidence  on  trial  for  homicide  of  assaults 
by  deceased,  see  Evidence,  1893. 

Weight  and  feufficiency  of  evidence  in  prose- 
cution  for,  see  Evidence,  2397,   2398. 

Liability  for  injury  resulting  from  fright 
caused  by  assault  on  other  person,  see 
Fright,  11. 

Homicide  resulting  from  fright  caused  by 
unlawful  assault  on  other  person,  see 
Homicide,  36. 

Homicide  in  defending  third  person  against, 
see  Homicide,  63,  81,  83-90. 

Homicide  in  resisting,  see  Homicide,  67; 
III.  b. 


12 


178 


ASSAULT  AND  BATTERY,  I. 


Effect  of,  on  right  subsequently  to  kill  in 
self-defense,  see  Homicide,   9o-97. 

Wife's  right  of  action  for  assault  on  her  by 
husband,  see  Husband  and  Wife,  204- 
206. 

Conviction  for  assault  with  deadly  weapon 
upon  indictment  charging  murder,  see 
Indictment,  Infokmation  and  Com- 
plaint, 122. 

Injunction  against,  see  Injunction,  187. 

On  insured  person  as  accidental  injury,  see 
Insubance,  731. 

Recovery  against  one  only  of  two  parties 
sued  for,  see  Judgment,  24. 

,By  servant,  see  Cabbiebs,  132-147 ;  Masteb 
AND  Seevant,  26,  41,  941-945,  953-974. 

Charging  one  with  threatening  to  assault 
as  slander  per  se,  see  Libel  and  Slan- 
DEB,  14. 

Charging  assault  as  libelous,  see  Libel  and 
Slandeb,  31. 

Liability  of  municipality  for  assault  by 
agent,  see  Municipal  Cobpobations, 
397. 

New  trial  for  inadequacy  of  damages,  see 
New  Tbial,  35. 

Sufficiency  of  defendant's  pleadings  in  ac- 
tion for,  see  Pleading,  466. 

Demurrer  to  complaint  in  action  for,  see 
Pleading,  590. 

With  intent  to  rape,  see  Rape. 

Liability  of  teacher  for,  see  Schools,  34. 

Counterclaim  in  action  for,  see  Set-Off  and 
Countebclaim,  16. 

Offer  of  evidence  in  action  for,  see  Tbial, 
45. 

Right  to  have  question  of  guilt  of  lesser 
degrees  of  assault  submitted  to  jury, 
see  Trial,  93. 

Question  for  jury  in  action  for,  see  Tbial, 
244,  289,  291,  666. 

Cross-examination  of  witnesses,  see  Wit- 
nesses, 86. 

Evidence  to  contradict  witness  in  action 
for,  see  Witnesses,  172. 

I.  In  general. 

(See  also  same  heading  m  Digest  L.R.A. 
1-10.) 

1.  A  civil  action  for  an  assault  and  bat- 
tery may  be  maintained  where  it  appears 
that  the  act  complained  of  was  unlawful, 
although  no  intent  on  the  part  of  the  de- 
fendant to  injure  the  plaintiff  was  shown. 
Mohr  v.  Williams,  i:  439,  104  N.  W.  12,  95 
Minn.  261. 

2.  Placing  one's  hand  on  another's  head 
and  pushing  his  hat  back  for  the  purpose 
of  seeing  his  face,  in  order  to  identify  him, 
is  an  assault  and  battery,  Seigel  v.  Long, 
33:  1070,  53   So.   753,   169   Ala.   79. 

3.  One  is  not  guilty  of  assault  in  pla- 
cing his  hand  upon  a  woman  whom  he  dis- 
covers to  be  in  danger  of  being  led  astray, 
for  the  purpose  of  persuading  her  to  return 
to  her  friends,  if  he  attempts  no  coercion, 
and  leaves  her  when  she  frees  herself  from 
his  touch.  State  v.  Hemphill,  45:  455,  78 
S.  E.  167,  167,  N.  C.  632.  (Annotated) 

4.  A  battery  is  not  committed  by  one 
Digest  1-52  Ii.B.A.(N.S.) 


who,  in  attempting  to  secure  goods  from 
another,  who  had  obtained  possession  of 
them  without  paying  for  them,  and  who,  re- 
sorting to  a  ruse  to  divert  his  attention, 
takes  the  property  out  of  his  hands,  and, 
in  doing  so,  accidentally  touches  hira  on  the 
knee.  Steinman  v.  Baltimore  Antiseptic 
Steam  Laundry  Co.  21:  884,  71  Atl.  517,  109 
Md.  62. 

5.  A  member  of  a  mob  which  by  threats 
and  hostile  demonstrations  compels  a  per- 
son to  seek  refuge  in  his  home,  who  fires  a 
pistol  at  him  while  there,  is  liable  in  dam- 
ages for  assault  and  trespass.  Saunders  v. 
Gilbert,  38:  404,  72  S.  E.  610,  156  N.  0.  463. 

(Annotated) 

6.  Abusing  and  threatening  a  woman 
over  a  telephone  is  not  an  assault.  Kramer 
V.  Ricksmeier,  45:  928,  139  N.  W,  1091,  159 
Iowa,  48. 

7.  Making  threatening  gestures  towards 
another  with  an  ax  does  not  constitute  an 
assault  if  one  is  not  within  striking  dis- 
tance of  him,  or  sufficiently  near  to  put 
him  in  fear  of  being  struck.  Grimes  v. 
State,  33:  982,  54   So.  839,  99  Miss.  232. 

(Annotated) 

8.  The  flight  of  the  person  assaulted 
when  another  advances  upon  him  with 
draM'n  knife  under  threat  to  kill  him,  so 
that  the  assailant  does  not  get  near  enough 
to  carry  out  his  threat,  does  not  prevent  the 
act  from  being  a  criminal  assault,  under  a 
statute  making  an  assault  an  unlawful  at- 
tempt coupled  wich  the  present  ability  to 
commit  a  violent  injury  on  the  person  of 
another.  Wells  v.  State,  45:  1171,  157  S. 
W.  389,  108  Ark.  312. 

9.  One  who  is  assaulted  upon  the 
street  without  provocation,  by  a  much 
heavier  man,  and  has  applied  to  him  in  a 
tone  that  can  be  heard  175  feet  distant 
the  vilest  of  epithets,  is  entitled,  although 
he  was  not  physically  injured  by  the  as- 
sault, to  such  compensation  for  the  indig- 
nities and  vilification  as  money  can  afford. 
Carrick  v.  Joachim,  28:  85,  52  So.  173,  126 
La.  5.  .  (Annotated) 
By  pointing  unloaded  \ireapon. 

See  also  infra,  25,  37. 

10.  That  the  weapon  was  not  loaded  will 
not  prevent  the  pointing  of  a  gun  at  an- 
other from  being  an  assault  if  the  latter 
had  reasonable  cause  to  believe  it  was  load- 
ed, and  was  put  in  fear  of  immediate  bodily 
injury  therefrom,  under  circumstances 
which  would  induce  fear  in  the  mind  of 
an  ordinary  man.  State  v.  Barry,  41:  181, 
124  Pac.  775,  45  Mont.  598.         (Annotated) 

11.  Poiiiting  an  unloaded  gun  at  another 
is  not  an  assault  if,  when  the  one  at  whom 
i,t  is  pointed  first  discovers  it,  the  one 
presenting  it  is,  to  the  knowledge  of  his 
apparent  victim,  covered  by  a  gun  in  the 
hands  of  another,  so  as  to  be  harmless,  so 
that  no  fear  is  induced  in  the  mind  of  the 
victim.  State  v.  Barry,  41:  181,  124  Pac. 
775,  45  Mont.  598. 

12.  An  assault  with  a  dangerous  weapon 
cannot  be  committed  by  pointing  at  an- 
other an  unloaded  pistol,  although  the  per- 
son toward  whom  it  is   pointed  does   not 


ASSAULT  AND  BATTERY,  II. 


179 


know  that  the  weapon  is  not  loaded,  and 
is  put  in  fear  bv  the  act.  Price  v.  Unit- 
ed States,  15:  1272,  156  Fed.  950,  85  C.  C.  A. 
247.  (Annotated) 

13.  An  assault  may  be  committed  by 
pointing  at  another  an  unloaded  pistol  if 
the  person  at  whom  it  is  pointed  does  not 
know  that  it  is  unloaded,  and  is  put  in 
apprehension  by  the  act.  Price  v.  United 
States,  15:  1272,  156  Fed.  950,  85  C.  C.  A. 
247.  (Annotated) 
By  parent  punishing  child. 

14.  A  parent  may  be  guilty  of  assault  in 
inflicting  punishment  upon  his  child  if  it 
was  cruel  and  severe,  and  such  as,  in  its 
very  nature,  would  negative  the  idea  of 
good  faith  on  the  part  of  the  parent,  al- 
though it  does  not  cause  permanent  injury 
or  disfigurement  to  the  child.  People  v. 
Green,  21:216,  119  N,  W.  1087,  155  Mich. 
524.  ( Annotated ) 

15.  A  father  may  be  convicted  of  assault 
where  he  whips  with  a  riding  whip  his 
twelve-year-old  daughter  on  her  nude  body, 
so  as  to  cut  the  flesh,  and  then  leaves  her 
locked  in  a  room  for  a  couple  of  days,  with 
her  hands  tied  behind  her,  feeding  her  on 
bread  and  water.  State  v.  Green,  21:216, 
119  N.  W.  1087,  155  Mich.  524. 
Punishment  of  convict. 

16.  Corporal  punishment  of  a  convict 
by  a  warden  under  circumstances  not  war- 
ranted by  a  statute  authorizing  only  such 
punishment  as  may  be  reasonably  necessary 
to  compel  work  or  labor  in  the  execution  of 
the  sentence,  or  to  maintain  proper  disci- 
pline, is  an  assault,  as  a  person  by  convic- 
tion of  crime  does  not  lose,  except  as  ex- 
pressly provided  by  statute,  his  right  tto 
personal  security  against  unlawful  invasion. 
Westbrook  v.  State,  26:  591,  66  S.  E.  788, 
133  Ga.  578. 

By  officer. 

17.  Where  a  town  marshal  in  arresting  j 
a  person  is  accompanied  by  a  deputy,  and 
they  are  each  heavier  and  more  powerful 
than  the  person  whom  they  arrest,  and 
together  can  readily  handle  him  without 
beating  him  on  the  head  with  a  loaded 
pistol,  at  the  risk  of  killing  him,  thereby 
so  lacerating  his  scalp  that  he  is  covered 
with  blood,  the  marshal  by  whom  such  un- 
warranted assault  is  committed  will  be  held 
liable  in  damages.  Stoehr  v.  Payne,  44: 
604,  61   So.   206,   132  La.  213. 

18.  A  policeman  on  an  Indian  reservation 
who  assaults  and  imprisons  a  person  of  In- 
dian blood  who,  upon  going  to  a  train  to 
meet  his  wife  and  children,  disregards  his 
directions  to  keep  back  from  the  entrance 
to  the  train,  is  liable  therefor  in  damages. 
Deragon  v.  Sero,  20:  842,  118  N.  W.  839,  137 
Wis.  276. 

By  physician;  unauthorized  operation. 

19.  In  a  civil  action  by  a  patient  against 
a  surgeon  for  assault  and  battery,  it  is  not 
necessary  to  show  that  the  surgeon  in- 
tended, by  the  act  complained  of,  to  injure 
the  patient,  but  it  is  sufficient  if  it  appears 
that  the  act  was  wroneful  and  unlawful. 
Rolater  v.  Strain,  50:  880,  137  Pac.  96,  39 
Okla.  572.  (Annotated) 
Digest  1-52  KR.A.(N.S.) 


20.  An  operation  upon  the  left  ear  of 
a  patient  without  lier  express  or  implied 
consent,  after  slie  had  consented  to  an 
operation  upon  her  right  ear,  was  wrong- 
ful and  unlawful,  and  constituted  in  law 
an  assault  and  battery.  Mohr  v.  Williams, 
i:  439,  104  N.  W.  12,  95  Minn.  261. 

(Annotated) 
Iiiability  of  one  encouraging  assault. 

21.  One  present  at  a  quarrel,  who  en- 
courages a  battery,  assumes  the  conse- 
quences of  the  act  to  its  full  extent,  as 
much  as  the  party  who  does  the  deed.  Per- 
rine  v.  Hanacek,  51:718,  138  Pac.  148,  40 
Okla.  359.  (Annotated) 
Intent  to  kill. 

Evidence  in  prosecution  for,  see  Eviuence, 
1477. 

Prejudicial  error  in  exclusion  of  evidence, 
see  Appeal  and  Ekbob,  1229. 

Construction  of  statute  as  to  punishment 
for,  see  Statxttes,  231. 

Duty  of  court  to  define  "malice  afore- 
thought," see  Trial,  888. 

Correctness  of  instructions,  see  Tbial,  1078, 
1079. 

Change  of  venue  in  action  for  assault  with 
intent  to  kill,  see  Venue,  26. 
22.  To  render  one  guilty  of  assault  with 

intent  to  murder,  it  must  have   been  made 

with  malice  aforethought  and  an  intent  to 

kill.      State   v.   McGuire,   38:  1045,   80    Atl. 

761,  84  Conn.  470. 

23.  The  wounding  of  one  while  shooting 
at  another  with  intent  to  kill  will  not  sus- 
tain a  prosecution  for  shooting  the  former 
with  intent  to  kill,  under  a  statute  provid- 
ing that  every  person  who  shall  shoot  at 
anotlier  with  intent  to  kill  such  other  shall 
be  punished.  State  v.  Mulhall,  7:  630,  97 
S.  W.  583,  199  Mo.  202.  (Annotated) 

24.  An  assault  with  intent  to  kill,  com- 
mitted without  legal  justification  or  excuse, 
and  without  any  extenuating  circumstances, 
in  law  is  committed  with  malice  afore- 
thought, and  is  an  assault  with  intent  to 
murder.  State  v.  McGuire,  38:  1045,  80 
Atl.  761,  84  Conn.  470. 

25.  One  is  guilty  of  assault  with  intent 
to  kill  who  points  a  loaded  revolver  at  an- 
other to  compel  him  to  do  a  specified  act 
which  the  assailant  has  no  right  to  demand, 
under  threat  to  kill  him  if  he  does  not  com- 
ply with  the  demand,  although  death  may 
be  avoided  by  such  compliance.  People  v. 
Connors,  39:  148,  97  N.  E.  643,  253  111.  266. 

(Annotated) 

II.  Justification;    defenses. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

In  case  of  assault  on  passenger,  see  Car- 
riers, 139,  140. 

Evidence  in  justification  of,  see  Evidence, 
2002. 

Mere  words  as  provocation  for,  see  Car- 
biers,  139,  140;  Homicide,  70. 

26.  A  tenant,  who,  upon  vacating  the 
premises,  leaves  a  chattel,  with  the  under- 


180 


ASSAULT  AND  BATTERY,  II. 


standing  that  he  can  get  it  when  ho  wants 
it,  has  no  right  to  use  force  to  obtain  it, 
when,  upon  calling  for  it  and  asserting  that 
it  is  liis,  his  successor  states  that  he  knows 
nothing  about  it,  but  will  refer  the  matter 
to  the  landlord,  and  forbids  the  owner  to  re- 
move it,  placing  liis  hand  on  it  to  prevent 
his  doing  so.  Stanley  v.  Payne,  3:  251,  62 
Atl.  495,  78  Vt.  235.  (Annotated) 

27.  Assisting  in  the  elopement  of  a  minor 
girl  will  not  justify  the  father  in  admin- 
istering a  whipping  to  the  one  so  doing, 
which  is  the  result  of  deliberation,  after  the 
lapse  of  sufficient  cooling  time.  Shoemaker 
V.  Jackson,  i :  137,  104  N.  W.  503,  128  Iowa, 
488.  (Annotated) 

28.  An  officer  who,  in  lawful  self- 
defense,  shoots  at  one  whom  he  is  intending 
to  arrest,  and,  missing  him,  accidentally 
wounds  an  innocent  bystander,  is  not  liable 
for  the  injury,  in  the  absenee  of  negligence. 
Lord  V.  Shaw,  50:  1069,  137  Pac.  885,  41 
Okla.  347.  (Annotated) 

29.  That  one  who  has  been  driven  to  his 
home  by  a  mob  fires  a  pistol  into  the  air 
to  frighten  the  crowd  away  does  not  con- 
done the  assault  and  trespass  of  which  those 
composing  the  mob  have  been  guilty.  Saund- 
ers V.  Gilbert,  38:  404,  72  S.  E.  610,  156  N. 
C.  463. 

30.  An  employer  may,  after  the  termina- 
tion of  a  contract  of  employment,  use  rea- 
sonable force  to  remove  the  servant  from 
his  premises,  if,  after  reasonable  opportuni- 
ty to  do  so  or  while  behaving  in  a  disorder- 
ly manner,  he  refuses  to  leave.  Noonan  v. 
Luther,  41:  761,  99  N.  E.  178,  206  N.  Y.  105. 

(Annotated) 
Mutual  combat. 

31.  Where  two  persons  engage  voluntari- 
ly in  a  fight,  either  can  maintain  an  action 
against  the  other  to  recover  the  actual 
damage  for  the  injuries  he  may  receive;  and 
the  fact  that  the  combat  was  by  agreement 
or  mutual  consent  of  the  parties  to  it  is  no 
defense.  Morris  v.  Miller,  20:  907,  119  N. 
W.  458,  83  Neb.  218.  (Annotated) 
Mistake  in  identity. 

32.  Mistake  in  identity  of  the  person 
assaulted  is  no  justification  for  assault  and 
battery.  Seigel  v.  Long,  33:  1070,  53  So. 
753,  169  Ala.  79.  (Annotated) 
Contributory  negligence. 

33.  The  doctrine  of  contributory  negli- 
gence as  a  defense  has  no  proper  application 
to  an  action  for  damages  for  an  assault  and 
battery.  Eckerd  v.  Weve,  38:  516,  118 
Pac.  870,  85  Kan.  752.  (Annotated) 
Offer  of  apology. 

34.  Offering  to  apologize  to  one  upon 
whom  a  battery  has  been  committed  is  no 
defense  to  an  action  to  recover  damages 
for  the  battery.  Seigel  v.  Long,  33:  1070, 
53  So.  753,  169  Ala.  79. 

TTnlawful  arrest. 

Homicide  in  resisting  unlawful  arrest,  see 
Homicide,  75. 

35.  The  offense  which  one  commits  who 
fires  at  an  arresting  officer  attempting  an 
illegal  arrest,  with  a  gun,  and  misses  him, 
when  such  resistance  is  unnecessary  to  de- 
fend himself  from  the  illegal  arrest,  is  that 
Digest  1-52  L.R.A.(N.S.) 


of  unlawfully  shooting  at  another  not  in  his 
own  defense.  Porter  v.  State,  2:  730,  52 
S.  E.  283,  124  Ga.  297. 

36.  If  an  attempted  arrest  be  unlawful, 
the  party  sought  to  be  arrested  may  use 
such  reasonable  force,  proportioned  to  the 
injury  attempted  upon  him,  as  is  neces- 
sary to  effect  his  escape,  but  no  more; 
and  he  cannot  do  this  by  using  or  offering 
to  use  a  deadly  weapon,  if  he  lias  no  rea- 
son to  apprehend  a  greater  injury  than  a 
mere  unlawful  arrest.  State  v.  Gum,  33: 
150,   69   S.   E.  463,  68   W.   Va.   105. 

(Annotated) 
Defense  of  property  or  dwelling. 
In  attempt  to  enter  upon  one's  own  prop- 
erty   in    possession    of    wrongdoer,    see 
Appeal  and  Error,  1033. 
Evidence  to  show  good  faith,  see  Evidence, 
1666,  1743,  2001. 

37.  The  pointing,  by  one  whose  property 
has  been  taken  out  of  his  possession  under  a 
writ  of  attachment,  of  a  firearm  at  another 
who  is  attempting  to  use  the  property,  to 
compel  him  to  desist,  without  first  request- 
ing him  to  do  so,  is  such  excessive  force  as 
to  render  the  one  so  doing  guilty  of  an 
assault.  State  v.  Scott,  9:  1148,  55  S.  E.  69, 
142  N.  C.  582. 

38.  The  mere  act  of  a  trespasser  in  tear- 
ing down  one's  outlying  fence  after  he  has 
been  warned  to  desist  does  not  justify  shoot- 
ing or  wounding  him  with  a  firearm,  so  as 
to  relieve  the  assailant  from  liability  in 
damages  for  assault.  Newcome  v.  Russell, 
22:  724,  117  S.  W.  305,  133  Ky.  29. 

(Annotated) 

39.  That  one  on  trial  for  assaulting  an- 
other with  a  dangerous  weapon  while  try- 
ing to  gain  possession  of  real  estate  was 
the  owner  of  the  property  is  immaterial, 
since  he  had  no  right  to  resort  to  force  to 
regain  his  rights.  Hickey  v.  United  States, 
22:  728,  168  Fed.  536,  93  C.  C.  A.  616. 

(Annotated) 

40.  That  one  injured  by  a  property  own- 
er attempting  to  effect  an  entry  on  the 
property  was  merely  an  employee  of  one  in 
wrongful  possession  thereof  does  not  render 
such  owner  liable  for  the  injury  if  he  used 
no  more  force  than  was  necessary  to  eflect 
the  entry.  Walker  v.  Chanslor,  17:  455,  94 
Pac.  606,  153  Cal.  118.  (Annotated) 

41.  The  owner  of  land  who  is  entitled  to 
immediate  possession  of  it  is  not  liable 
for  assault  upon  a  trespasser  thereon  be- 
cause of  the  use  by  him  of  no  more  force 
than  is  necessary  to  expel  the  trespasser 
when  he  attempts  to  exercise  his  right  of 
entry.  Walker  v.  Chanslor,  17:  455,  94  Pac. 
606,  153  Cal.  118.  (Annotated) 

42.  One  is  not  guilty  of  assault  and  bat- 
tery in  ejecting  from  his  apartments,  using 
no  more  force  than  is  necessary,  a  trespasser 
who  must  have  known  that  he  would  be 
ejected  if  he  went  there.  Slater  v.  Taylor, 
18:  77,  31  App.  D.  C.  100. 
Self-defense. 

Liability  of  officer  who,  in  self-defense, 
shoots  another,  for  accidental  injury 
to  third  person,  see  Appcal  ai^d  Ebbos, 
1344. 


ASSAYERS— ASSETS. 


181 


Evidence  as  to  character  or  reputation  of 

person  assaulted,  see  Evidence,  1568- 

1572. 
Question  for  jury  as  to,  see  Trial,  291. 
Instruction  as  to  right  of  self-defense,  see 

Tkial,  1016. 
Evidence   on    question    of,    see    VVIT^'ESSES, 

172. 
See  also  supra,  28. 

43.  One  pleading  self-defense  in  justifica- 
tion of  an  assault  and  battery  is  bound  to 
show  that  he  used  no  more  force  than  rea- 
sonably appeared  to  him,  under  all  the  cir- 
cumstances, to  be  necessary  for  his  own  per- 
sonal safety.  McQuiggan  v.  Ladd,  14:  689, 
64  Atl.  503,  79  Vt.  90. 

44.  The  force  which  one  may  use  in  self- 
defense  is  that  which  reasonably  appears  to 
him  to  be  necessary  in  view  of  all  the  cir- 
cumstances of  the  case;  and  his  honest  be- 
lief with  reference  thereto  is  immaterial. 
McQuiggan  v.  Ladd,  14:  689,  64  Atl.  503, 
79  Vt.  90. 

45.  One  under  the  influence  of  liquor 
who,  while  on  the  sidewalk,  has  applied  in- 
sulting epithets  to  the  owner  of  abutting 
property,  has  the  right  of  self-defense  if 
the  latter  advances  upon  him  to  force  him 
to  leave  the  walk.  Hixson  v.  Slocum,  51 : 
838,  161   S.  W.  522,  156  Ky.  487. 

(Annotated) 

46.  One  who  enters  another's  house  for  a 
wrongful  purpose  has  a  perfect  right  of 
self-defense,  if,  when  discovered,  he  aban- 
dons his  purpose,  llees  from  the  building, 
and  is  pursued  and  assaulted  by  the  owner 
of  the  property.  Cox  v.  State,  26:  621,  123 
S.    W.   696,   57    Tex.    Crim.   Rep.   427. 

(Annotated) 
Criminal  intimacy  Tiritli  wife. 
Evidence  as  to,  see  Evidence,  2002. 

47.  One  is  not  justified  in  making  an  as- 
sault with  a  deadly  weapon  to  prevent  the 
one  assaulted  from  conuuitting  adultery  in 
the  future  with  the  wife  of  the  assailant. 
State  V.  Young,  18:  688,  96  Pac.  1067,  52 
Or.  227.  (Annotated) 


ASSAYERS. 


Injunction  against  operation  of  assay  ofiQce, 
see  Injunction,  12. 


ASSEMBLY. 


Constitutional  right  to  assemble  peaceably, 
see  Constitutional  Law,  II,  i. 


ASSEMBLY  HALL. 

Authority  of  town  to  construct,  see  Towns, 

5. 
Digest  1-52  L.R.A.(N.S.) 


ASSENT. 

Estoppel  by,  see  Estoppel,  III.  f. 
Presumption  and  burden  of  proof  as  to,  see 

Evidence,  II.  e,  4. 
To   encumbrance   on   insured   property,   see 

Insurance,  239. 


ASSESSMENT  COMPANY. 

See  Insurance,  7;  VI.  h,  2. 


ASSESSMENT   ROLL. 

Entry  of  tax  on,  see  Taxes,  178. 


ASSESSMENTS. 


On  members  of  social  club,  see  Appeai,  and 
Error,  43;  Clxtbs,  3,  4. 

On  pledged  stock,  see  Corporations,  239. 

On  paid-up  stock,  see  Corporations,  311- 
316. 

On  unpaid  subscription  to  stock,  see  Cor- 
porations, 347,  366. 

For  drains  and  sewers,  see  Drains  and 
Sewers,  III. 

Injunction  against,  see  Injunction,  I.  k. 

For  insurance,  see  Insurance,  III.  h. 

Action  against  assessment  company,  see  In- 
surance, VI.  h,  2. 

Forfeiture  of  benefit  certificate  for  non- 
payment  of,   see  Insurance,   397-406. 

For  public  improvements,  see  Public  Im- 
provements, III. 

For  tax,  see  Taxes,  III.,  V.  d. 


ASSESSMENT  WORK. 

On  mining  claim,  see  Mines,  I.  b. 


ASSETS. 

Of  bankrupt,  see  Bankruptcy,  II. 

Sale  of  assets  of  corporation,  see  Corpora- 
tions, II. 

Of  decedent's  estate,  see  Executors  and 
Administrators,  II.  c. 

Of  insurance  company,  see  Insurance,  8- 
11,  30. 

Insurance  as,  see  Insurance,  826. 

Of  insolvent  estate,  see  Receivers,  22. 


182 


ASSIGNMENT,  I. 


ASSIGNMENT. 

I.  What  assignable;  validity,  1—18. 
II.  Equitable  assignment;  orders,  19. 
III.  Rights    and    liabilities    of   parties, 
20—33. 

For  creditors,  see  Assignment  for  Cbed- 
»   ri'ORS. 

Of  judgment,  see  Attorneys,  70. 

Of  expectancy,  see  Bankruptcy,  139;  Con- 
tracts, 609;  Expectancies;  Husband 
AND  Wife,  32. 

Of  judgment,  see  Estopped,  242;  Injunc- 
tion, 263;  Judgment,  317. 

Of  stock  in  banks,  see  Banks,  11-13. 

Of  action  for  damages  for  unlawful  con- 
spiracy, by  bankrupt,  see  Bankruptcy, 
49. 

Of  savings  bank  deposit,  see  Banks,  235, 
236. 

Of  negotiable  paper,  see  Bills  and  Notes, 
III.,  V. 

Of  bill  of  lading,  see  Bills  of  Lading; 
Courts,  301, 

Of  chattel  mortgage,  see  Chattel  Mort- 
gage, 50 

Of  future  inventions,  see  Contracts,  446. 

Of  corporate  franchise,  see  Corporations, 
II. 

Of  corporate  stock,  see  Corporations,  V.  c. 

Of  contract  for  supplies,  see  Damages,  157; 
Landlord  and  Tenant,  13;  Kailroads, 
5,  6. 

Of  dower,  see  Dower,  42-46. 

Of  legacy,  see  Evidence,  270. 

Of  cause  of  action  for  tort,  see  Exex;ution, 
5. 

Of  photographs,  injunction  against  sale  of, 
see  Injunction,  105. 

Of  property  and  insurance  thereon  as  se- 
curity for  debt,  see  Insurance,  231. 

Of  equity  of  redemption,  effect  on  insurance 
payable  to  mortgagee,  see  Insurance, 
821. 

Of  trust  deed  to  insurance  company  paying 
loss  to  cestui  que  trust,  see  Insurance, 
889,  890. 

Of  insurance  policy,  see  Insurance,  IV. 

Of  lease,  see  Landlord  and  Tenant,  II.  e. 

Of  license,  see  License,  9;  Pledge  and  Col- 
lateral Security,  2;  Timber,  4. 

Of  logs  sunk  in  river  on  which  marks  have 
become  obliterated,  see  Logs  and  Log- 
ging, 9. 

Of  note  secured  by  mortgage,  see  Mortgage, 
59,  60. 

Of  mortgage,  see  Mortgage,  TV. 

Of  patents,  see  Patents,  IV.  c. 

Of  note  on  paying  original  holder  of  mort- 
gage securing  it,  see  Payment,  18. 

Of  liquor  license,  see  Pledge  and  Collater- 
al Security,  2. 

Of  claim,  to  prevent  removal  of  action  to 
Federal  court,  see  Removal  of  Causes, 
10. 

Of  negotiable  bonds  of  corporation  by  in- 
debted stockholder,  to  prevent  set-oflF, 
see  Set-Off  and  Counterclaim,  33. 

Of  trademark,  see  Trademarks,  III. 

Digest   1-52  I..R.A.(N.S.) 


Of  property  of  debtor  to  bank  who  under- 
takes to  conduct  debtor's  business,  see 
Trusts,  40. 

Of  land  contract,  see  Vendor  and  Pur- 
chaser, 86,  87. 

Effect  of,  on  Federal  juriadiction,  see 
Courts,  254. 

Effect  of,  on  right  of  action,  see  Parties, 
I.  a,  3. 

Draft  as,  see  Bills  and  Notes,  6. 

Check  as  assignment  of  funds  in  bank,  see 
Banks,  95;  Checks,  7. 

Evidence  to  discredit  alleged  assignment  of 
notes,  see  Evidence,  830. 

As  to  pledge,  see  Pledge  and  Collateral 
Security. 

As  affecting  set-off,  see  Set-Off  and  CouTi- 
terclaim,  la,  33,  35,  38. 

Parol  promise  of  assignee  of  i^quity  of  re- 
demption to  mortgagee  to  pay  mortgage 
debt,  see  Contracts,  227. 

Taking  assignment  of  claims  and  bringing 
actions  thereon  as  doing  business  with- 
in the  state,  see  Corporations,  417. 

Covenant  against,  in  lease,  see  Landlord 
AND  Tenant,  16,  35-37. 

Evidence  as  to  capacity  of  one  making,  see 
Evidence,   1102. 

Evidence  to  show  notice  of,  see  Evidence, 
1582. 

Sufficiency  of  evidence  as  to  invalidity  of 
assignment,  see  Evidence,  2103. 

Payment  of  insurance  policy  taken  for  bene- 
fit of  lien  holder  as  affecting  equitable 
assignment  of  lien  to  the  insurer,  see 
Insurance,  884. 

To  surety  paving  debt,  see  Subrogation,  30, 
31. 

/.  What  assignable;  validity. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Civil  action  for  violation  of  penal  statute 
forbidding  assignment  of  claim  against 
wage  earner,  see  Case,  5. 

Validity  of  statute  prohibiting  assignment 
of  claim  to  evade  exemption  laws,  see 
Constitutional  Law,  537. 

Parol  acceptance  by  assignee  of  written  aa- 
signment,  see  Contracts,  293. 

Parol  assignment  of  lease,  see  Contracts, 
326. 

Record  of  assignment  of  mortgage,  see  Rec- 
ords AND  Recording  Laws,  25, 

By  conditional  vendee,  of  his  interest,  see 
Sale,  152. 

As  question  for  court,  see  Trial,  268. 

Of  railroad  ticket,  see  Carriers,  63. 

Of  easement,  see  Easements,  80,  81. 

Of  expectancy,  see  Expectancies. 

Of  license  as  revocation,  see  Timber,  4. 

Right  of  action. 

By  administrator  to  widow  of  right  of  ac- 
tion for  death  of  intestate,  see  Execu- 
tors AND  Administrators,  51. 
Of  action  for  assault  and  battery  or  false 
imprisonment,  see  Contracts,  449. 
1.  A  cause  of  action  for  personal  in- 
juries may  be  assigned  where  by  statute  it 


ASSIGNMENT,  I. 


183 


would  survive  the  death  of  the  person  in- 
jured.    Wells  V.  Edwards  Hotel  &  City  R. 
Co.  27:  404,  50  So.  628,  96  Miss.  191. 
I  (Annotated) 

I  2.  A   right   to   recover   damages    for   a 

personal  tort  is  a  mere  personal  right,  and 
not  assignable  before  judgment.  Boogren  v. 
St.  Paul  City  R.  Co.  3:  379,  106  N.  W.  104, 
97  Minn.  51. 

3.  A  right  to  recover  damages  for 
fraudulent  representations  may  be  assigned 
under  a  statute  permitting  assumpsit  to 
be  brought  in  such  cases,  and  providing 
that  the  cause  of  action  shall  survive.  Hicks 
v.  Steel,  4:  279,  105  N.  W.  767,  142  Mich. 
292. 

Decree  for  alimony. 

4.  A  decree  for  permanent  alimony  is 
not  assignable.  Fournier  v.  Clutton,  7:  179, 
109  N.  W.  425,  146  Mich.  298.  (Annotated) 
Unpaid  club  dues. 

5.  Unpaid  dues  owing  by  a  member  of 
a  social  club  may  be  assigned  by  the  asso- 
ciation, and  the  assignee  thereof  may  main- 
tain an  action  to  recover  the  same.  An- 
derson V.  Amidon,  34:  647,  130  N.  W.  1002, 
114  Minn.  202. 

Future  -vages. 

Constitutionality  of  statute  as  to,  see  Con- 
STiTXJTioxAL  Law,   180,   181,   458,   519. 

Duty  of  one  suing  employer  on  assignment 
of  wages  to  prove  amount  due  from  as- 
signor, see  Evidence,  654. 

Burden  of  proving  payment  in  action  to 
recover  assigned  wages,  «see  Pleading, 
489. 

See  also  infra,  31,  32. 

6.  An  assignment  of  wages  to  be  earned 
in  the  future  under  an  existing  employment 
is  valid.  Rodijkeit  v.  Andrews,  5:  564,  77 
N.  E^  747,  74  Ohio  St.  104.  (Annotated) 

7.  An  assignment  by  one  in  service  of 
wages  to  be  earned  in  the  future  is  not 
against  public  policy.  Chicago,  B.  &  Q. 
R.  Co.  v.  Provolt,  16:  587,  93  Pac.  1126,  42 
Colo.  103. 

Unearned  pay  of  officers. 
See  also  Mandamus,  59. 

8.  An  assignment  of  unearned  salary  by 
a  public  officer  is  against  public  policy,  and 
void.  McGowan  v.  New  Orleans,  8:  1120, 
43  So.  40,  118  La.  429. 

9.  An  agreement  between  partners  in 
the  practice  of  the  law,  one  of  whom  has 
been  elected  to  the  office  of  prosecuting  at- 
torney, to  divide  the  salary  of  the  office,  is 
invalid  as  an  attempted  assignment  of  a 
portion  of  the  salary  before  it  is  earned. 
Anderson  v.  Branstrom,  43:  422,  139  N. 
W.  40,  173  Mich.  157.  (Annotated) 

10.  A  fireman  belonging  to  a  munici- 
pal fire  department  is  within  the  rule  that 
public  officers  cannot  assign  salary  yet  to 
be  earned.  Schmitt  v.  Uooling,  36:881,  140 
S.  W.  197,  145  Ky.  240.  (Annotated) 
Time  certificate. 

11.  A  time  certificate  executed  by  a  con- 
struction company  to  an  employee  in  pay- 
ment of  balance  due  upon  an  open  account, 
in  which  it  is  stipulated  that  it  shall  be 
nontransferable,  and  shall  be  payable  only 
to  the  person  to  whom  issued,  when  properly 
Digest  1-52  I<.R.A.(N.S.) 


receipted  by  him  in  the  presence  of  the  pay- 
master of  the  emploj-er,  which  stipulation 
the  payee  agrees  to  in  writing,  is  not,  in  it- 
self, assignable,  nor  is  it  rendered  so  by 
Wilson's  Okla.  Rev.  &  Anno.  Stat.  §  4163, 
providing  that  things  in  action  arising  out 
of  an  obligation  may  be  transferred  by  the 
owner,  and  therefore  an  attempted  assign- 
ment of  the  certificate  is  void  aa  between  tiie 
assignee  and  the  maker  thereof.  Barringer 
V.  Bes  Line  Constr.  Co.  21:  597,  99  Pac.  775, 
23  Okla.  131.  (Annotated) 

Contract. 
Statute   of   frauds   as   affecting   assignment 

of  land  contract,   see  Contracts,  276, 

277. 
Parol    acceptance    by    assignee    of    written 

assignment,  see  Contracts,  293. 
Of  contract  to  purchase  stock,  see  Estoppel, 

34. 
Estoppel  to  deny  validity  of  assignment  of 

construction    contract,    see    Estoppel, 

115. 
Sufficiency  of  pleading  to  raise  question  of 

validity,  see  Pleading,  509. 

12.  A  contract  to  supply  all  the  eggs  of 
a  specified  quality  that  the  purchaser  may 
require  for  his  business  for  one  year,  the 
purchaser  undertaking  not  to  purchase  else- 
where, is  a  personal  one  the  benefit  of  which 
is  not  assignable  to  the  transferee  of  the 
business.  Kemp  v.  Baerselman,  2  B.  R.  C. 
436  [1906]  2  K.  B.  604.  Also  Reported  in 
75  L.  J.  K.  B.  N.  S.  873.  (Annotated) 

13.  That  one  contracted  for  himself, 
"his  heirs  and  assigns,"  does  not  render 
assignable  a  contract  which,  without  the 
words  "his  heirs  and  assigns,"  would  not 
have  been  assignable.  Schlesinger  v.  For- 
est Products  Co.  (N.  J.  Err.  &  App.)  30: 
347,  76  Atl.   1024,  78  N.  J.  L.  637. 

14.  A  contract  for  the  sale  of  staves  to 
be  manufactured  is  not  assignable  by  the 
vendor,  where  the  purchaser  relied  upon 
personal  performance  of  the  contract  by 
the  vendor,  so  as  to  compel  the  purchaser 
to  accept  performance  from  one  to  whom 
the  contract  had  been  assigned.  Schlesinger 
V.  Forest  Products  Co.  (N.  J.  Err.  &  App.) 
30:  347,  76  Atl.   1024,  78  N.  J.  L.  637. 

15.  A  contract  to  construct  and  equip  a 
canning  factory  for  persons  who  subscribe 
the  cost  of  the  enterprise,  the  subscriptions 
to  be  paj'able  when  the  plant  is  completed, 
is  not  assignable  without  the  consent  of  the 
subscribers.  Johnson  v.  Vickers,  21:  359, 
120  N.  W.  837,  139  Wis.  145.       (Annotated) 

10.  A  contract  to  purchase  its  own  stock 
from  a  corporation  is  not  assignable.  Re 
Holyoke,  43:  790,  139  N.  W.  392,  151  Wis. 
551.  (Annotated) 

17.  An  agreement  by  those  developing  a 
tract  of  land,  with  a  purchaser  of  lots,  tliat 
certain  improvements  would  be  made  on  the 
tract,  may  be  assigned  by  the  purchaser. 
Anderson  v.  American  Suburban  Corp. 
36:  896,  71   S.  E.  221,  155  N.  C.  131. 

18.  A  contract  to  cut  wood  and  deliver 
it  to  a  railroad  company  is  assignable  by 
the  company,  so  as  to  impose  upon  the  as- 
signee the  duty  to  pay  for  the  wood  wlien 
delivered  according  to   its  terms.     Atlantic 


184 


ASSIGNMENT,  II.,  III. 


&   N.   C.   R.   Co.   V.   Atlantic   &   N.   C.   Co. 
23:  223,   Gl    S.   E.    185,    147   N.   C.   368. 

(Annotated) 

II.  Equitable  assignment;  orders. 

(See  aUo  same  heading  in  Digest  L.R.A. 
1-10.) 

Bank  draft  as,  see  Banks,  80. 

19.  An  agreement,  in  consideration  of  a 
loan  of  money,  to  transfer  to  the  lender  the 
proceeds  of  a  pending  sale  of  real  estate 
when  received,  constitutes  a  present  equita- 
ble assignment  of  such  proceeds.  Godwin  v. 
Murchison  Nat.  Bank,  17:  935,  59  S.  E. 
154,  145  N.  C.  320. 

///.  Rights  and  liahilities  of  parties. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Assumpsit  by  assignee  of  a  portion  of  claim 
against  second  assignee  who  has  col- 
lected full  amount,  see  Assumpsit,  27. 

Effect  of  bankruptcy  of  assignor  on  rights 
of  assignee  of  expectancy,  see  Bank- 
BUPTCY,  139. 

Rights  of  assignee  of  negotiable  paper,  see 
Bills  and  Notes,  V. 

Of -bills  of  lading,  see  Bills  of  Lading. 
\       Civil  action  for  violation  of  penal  statute 
forbidding  assignment  of  claim  against 
wage  earner,  see  Case,  5. 

Assignee's  rights  under  covenant  in  deed, 
see   Covenants   and   Conditions,   123. 

Right  to  enforce  covenant,  see  Covenants 
AND  Conditions,  104,  105. 

Rights  of  assignee  of  expectancy  to  secure 
loan  with  exorbitant  interest,  see  Con- 
tracts, 609. 

Of  transferees  of  corporate  stock,  see  CoB- 
POBATIONS,  V.  c. 

Right  of  assignee  to  benefit  of  privilege  to 
take  water  from  spring,  see  Deeds,  28. 

Equitable  jurisdiction  of  suit  by  corporate 
creditor  to  reach  assigned  claim,  see 
Equity,  28. 

Estoppel  of  assignee  by  acts  of  assignor,  see 
Estoppel,  97. 

As  against  subsequent  garnishee,  see  Gab- 
nishment,  49,  50. 

Effect  of  transfer  of  good  will,  see  Good 
Will. 

Right  of  assignee  of  married  woman  to  sue 
her  husband  upon  contract  obligation, 
see  Husband  and  Wife,  196. 

Of  assignee  of  insurance  policy,  see  Insur- 
ance, 451-458,  464-467. 

Rights  of  assignee  to  insurance,  see  Insur- 
ance, VI.  e,  2,  d. 

Right  of  assignee  of  mortgage  to  open  de- 
fault judgment  quieting  title  as  against 
assignor,  see  Judgment,  325. 
•  Right  of  assignee  of  interest  in  action  to 
attack  judgment  because  of  perjured 
testimony,  see  Judgment,  141. 

On  assignment  to  lessee  of  lessor's  contract 
for  supplies,  see  Landlord  and  Ten- 
ant, 13;  Railboads,  5,  6. 

Digest  1-52  Ii.R.A.(N.S.> 


On  assignment  of  lessor's  rights  under  lease, 
see  Landlord  and  Tenant,  89. 

On  assignment  of  lease,  see  Landi.okd  and 
Tenant,  II.  e,  195-198,  204,  215,  216. 

Right  of  assignees  of  license  to  compensa- 
tion on  revocation  of,  see  License,  9. 

Effect  of  acknowledgment  to  assignor  after 
assignment  as  collateral  security,  see 
Limitation  of  Actions,  78,  351. 

On  assignment  of  mortgage,  see  Mortgage, 
IV. 

Assignee's  right  of  action,  see  Parties,  I. 
a,  3. 

Who  may  enforce  promise  of  assignee  of 
stock  to  pay  unpaid  subscriptions,  see 
Parties,  56. 

On  assignment  of  patent,  see  Patents,  IV. 
c. 

Right  of  assignee  of  leasehold  to  benefit  of 
covenant  for  conveyance  of  fee,  see 
Pleading,  242. 

Right  of  assignee  to  specific  performance  of 
contract,  see  Specific  Performance, 
80. 

SuflBciency  of  tender  as  against  assignee,  see 
Tendeb,  19. 

Right  of  assigns  of  grantor  of  land  to  com- 
pel vendees  to  perform  agreed  consider- 
ation for  sale,  see  Vendob  and  Pub- 
chaseb,  28. 

On  assignment  of  land  contract,  see  Ven- 
dob AND  Purchaser,  80,  87. 

Competency  of  assignor  as  witness  in  suit 
by  assignee  against  personal  represen- 
tative, see  Witnesses,  61,  62. 

20.  One  by  whose  negligence  another  is 
injured,  having  notice  of  an  assignment  of 
the  claim,  is  not  protected  in  settling  it 
with  the  person  injured.  Wells  v.  Edwards 
Hotel  &  City  R.  Co.  27:404,  50  So.  628, 
96  Miss.   191. 

21.  Where  claims  for  tort  may  be  as- 
signed, a  railroad  company  against  which 
a  claim  exists  for  a  personal  injury  cannot, 
by  settlement  with  the  person  injured,  avoid 
liability  to  his  wife  for  the  amount  due 
her  under  an  agreement  between  them  in  a 
divorce  proceeding  that  she  shall  have  a 
portion  of  the  recovery  as  alimony,  which 
has  been  confirmed  by  a  decree  which  made 
the  allowance  a  lien  on  the  fund  to  be 
recovered,  after  it  had  notice  thereof.  Kith- 
cart  V.  Kithcart,  30:  1062,  124  N.  W.  305, 
145  Iowa,  549. 

22.  An  assignee  of  a  land  contract  with 
full  knowledge  that  his  assignor  surrendered 
it  to  the  original  vendor  for  the  purpose  of 
negotiating  a  sale  of  the  prop€rty  to  a  mu- 
nicipal corporation  takes  subject  to  the 
outcome  of  such  negotiations,  and  cannot 
enforce  a  conveyance  of  the  property  until 
the  negotiations  with  the  municipality 
prove  ineflectual.  Allen  v.  Detroit,  36:  890, 
133  N.  W.  317,  167  Mich.  464. 

23.  Acceptance  of  an  assignment  of  a 
contract  to  sell  real  estate  is  shown  by 
placing  the  matter  in  the  hands  of  a  title 
guaranty  company,  with  directions  to  ex- 
amine the  title  and  prepare  a  deed,  and 
requiring  the  assignor  to  secure  title  to  a 
small  strip  of  ground  upon  which  a  build- 


ASSIGNMENT  FOR  CREDITORS. 


185 


ing  on  the  property  encroaches.  Evans  v. 
Stratton,  34:  393,  134  S.  W.  1154,  142  Ky. 
615. 

24.  The  assignee  of  a  contract  to  con- 
vey real  estate  cannot  repudiate  his  obliga- 
tion because  he  is  required  to  pay  the  as- 
signor a  bonus  for  the  riglits  conferred  by 
the  contract.  Evans  v.  Stratton,  34:  393, 
134  S.  W.  1154,  142  Ky.  615. 

25.  The  assignee  of  a  contract  for  sup- 
plies is,  under  the  general  doctrine  of  in- 
debitatus assumpsit,  bound  to  indemnify 
the  assignor  for  loss  vvliich  he  may  suffer 
at  the  suit  of  the  other  contracting  party, 
because  of  the  default  of  the  assignee.  At- 
lantic &  N.  C.  R.  Co.  V.  Atlantic  &  N.  C. 
Co.  23:  223,  61  S.  E.  185,  147  N.  C.  368. 

26.  A  provision  in  a  contract  for  public 
work  entitling  the  municipality  to  retain 
a  certain  percentage  of  the  contract  price 
until  claims  of  laborers  and  materialmen, 
of  which  it  is  given  notice,  have  been  paid, 
does  not  prevent  assignment  by  the  con- 
tractor after  completion  of  the  work,  of  the 
right  to  such  balance  prior  to  the  filing  of 
notice  of  laborers'  and  materialmen's 
claims,  which  shall  take  precedence  of  tlie 
latter  in  the  distribution  of  the  fund. 
United  States  Fidelity  &  G.  Co.  v.  Newark 
(N.  J.  Err.  &  App.)  37:  575,  81  Atl.  758, 
79  N.  J.  Eq.  584. 

27.  The  vendor  cannot  maintain  an 
action  to  recover  the  deferred  payments 
from  the  principal  in  case  of  an  option  con- 
tract to  purchase  mining  property,  secured 
by  an  agent  in  his  own  name,  and  assigned 
to  his  principal,  although  the  assignee  ex- 
pressly agrees  with  the  agent  to  make  the 
payments  necessary  to  comply  with  the 
option,  where,  by  the  terms  of  the  contract, 
all  payments  are  optional.  Rockwell  v. 
Edgcomb,  45:  661,  131  Pac.  191,  72  Wash. 
694. 

Priority  betxireen  assignees. 

28.  The  mere  assignment  by  a  customer 
to  his  bank  of  book  accounts,  of  which  no 
notice  is  given  the  debtor,  is  not  binding  on 
another  bank,  ignorant  of  the  assignment, 
in  whose  favor  the  customer  draws  on  the 
debtor,  and  which  applies  the  proceeds  of 
the  draft  upon  a  claim  against  the  cus- 
tomer. American  Exch.  Nat.  Bank  v.  Fed- 
eral Nat.  Bank,  27:  666,  75  Atl.  683,  226  Pa. 
483. 

29.  One  having  no  valid  pledge  of  an- 
other's book  accounts  cannot  prevent  an- 
other person  from  holding  the  proceeds  of  a 
draft  in  his  favor  upon  the  debtor,  on  the 
ground  that  he  had  made  no  advances  or 
had  given  no  new  credits  on  the  faith  of 
them.  American  Exch.  Nat.  Bank  v.  Fed- 
eral Nat.  Bank,  27:  666,  75  Atl.  683,  226 
Pa.  483. 

30.  One  who  loans  money  on  a  written 
assignment  of  contract  for  public  work,  but, 
without  giving  notice  of  his  rights,  permits 
the  contractor  to  retain  possession  of  the 
contract,  complete  the  work,  and  obtain 
time  orders  for  the  amount  due,  which  he 
sells  for  value  to  a  stranger,  will  be  sub- 
ordinated to  the  rights  of  the  latter. 
Washington  Twp.  v.  Wabash  Bridge  &  Iron 
Digest  1-52  L.R.A.(N.S.) 


Works,    11:471,   111   N.   W.   349,   147   Mich. 
571.  (Annotated) 

Assignee  of  xp^ages  or  salary. 

Effect  of  assignor's  discharge  in  bankruptcy 
on  right  to  enforce  valid  assignment  of 
wages,  see  Bankruptcy,   148,  149. 
Liability  of   one   causing   discharge   of   em- 
ployee by  persisting  in  claiming  an  as- 
signment of  his  wages,  see  Case,  42. 
Admissibility   of   employer's   statements   on 
discharging  employee  on   notice  of  as- 
signment of  wages,  see  Evidence,  1366. 
Assignee   as   party   defendant   in   action   to 
compel  payment  of  salary,  see  Parties, 
159. 

31.  A  partial  assignment  of  wages  to  se- 
cure a  loan  cannot  be  enforced  against  the 
employer  unless  accepted  by  him.  Chicago, 
B.  &  Q.  R.  Co.  V.  Provolt,  16:  587,  93  Pac. 
1126,  42  Colo.   103. 

32.  An  assignment  of  "any  and  all  sal- 
ary" to  be  earned  by  the  assignor,  to  se- 
cure a  loan  of  money,  creates  merely  a  lien 
on  the  salary  as  security  for  the  money 
loaned.  Chicago,  B.  &  Q.  R.  Co.  v.  Provolt, 
16:  587,  93  Pac.  1126,  42  Colo.  103. 
Equities  and  set-o£Fs. 

Set-off  of  assigned  claim,  see  Set-Off  and 

Counterclaim,  I.  a. 
Right    of    set-off    as    against    assignee,    see 

Set-Off  and  Counterclaim,  I.  d. 

33.  The  rule  that  a  deed  of  trust  can- 
not be  assigned  so  as  to  vest  title  freed 
from  any  defenses  which  the  mortgagor  has 
against  the  original  grantee  does  not  apply 
to  a  promissory  note  which  the  deed  is 
given  to  secure.  Zollman  v.  Jackson  Trust 
&  Sav.  Bank,  32:  858,  87  N.  E.  297,  238  111. 
290. 


ASSIGNMENT  FOB  CREDITORS. 

I.  WJiat  constitutes  an  assignment, 
1,   2. 

II.  Construction  and  effect  of  assign- 

ment. 

III.  Assignee  or  trustee,  3—8. 

a.  In  general,  3. 

J).  Rights  and,  powers,  4,  5. 

1.  In  general. 

2.  Property  or  title  taken, 

4. 

3.  Actions  hy,  5. 
c.  Liahilities,  6—8. 

IV.  Rights   and   liahilities   of  assign- 

ee's attorney. 
V.  Validity;  talcing  effect,  9,   10. 
VI.  Property  included,   11—13. 
VII.  Preferences  by  insolvent, 
a.  In  general, 
h.  Validity  of. 
VIII.  Rights,   dritics,  and  liahilities  of 
creditors;  priority  and  re- 
lease of  claims,    14:— 16. 
a.  In   general,    14—16. 
h.  Release   of  claims. 
IX.  Liahility   of  assignor. 

Validity  of  promissory  note  given  to  secure 
secret  advantage  to  creditor,  see  Bills 
AND  Notes,  19. 


186 


ASSIGNMENT  FOR  CREDITORS,  I.— III.    b,  2. 


Effect  of  agreement  by  guarantor  of  cor- 
poration note,  to  assignment,  on  his 
right  as  against  accommodation  mak- 
ers, see  Bills  and  Notes,  73. 

Conllict  of  laws  as  to,  see  Co>'flict  of 
Laws,  I.  f. 

By  foreign  corporation,  see  Corporations, 
VII.  d. 

Estoppel  of  creditor  by  participating  in, 
see  Estoppel,  204. 

Admissibility  in  evidence  of  statement  of 
account,  see  Evidence,  735. 

Refusal  to  furnish  gas  to  assignee  for 
creditors  until  amount  due  by  assignor 
for  gas  is  paid,  see  Gas,  17. 

Set-off  in  case  of,  see  Set-Off  and  Counter- 
claim, 35,  38. 

Enforcement  against  assignee  of  equitable 
mortgage  on  property,  see  Mobtqagb, 
10. 

As  to  bankruptcy  matters,  see  Bankruptcy. 

As  to  insolvency  generally,  see  Insolvency. 

As  to  receivers,  see  Receivers. 

I 
/.  What  constitutes  an  assignment. 

(See  also  same  heading  in  Digest  L.B.A. 
1-10.) 

1.  A  transfer  by  a  hardware  company 
under  an  agreement  with  its  larger  credit- 
ors, of  its  stock  of  goods  to  one  of  the 
creditors,  to  sell  the  stock  and  divide  the 
proceeds  pro  rata  among  the  creditors,  is 
not  an  assignment  for  the  benefit  of  credit- 
ors within  the  meaning  of  the  Oklahoma 
bulk  sales  law,  §  7910,  Comp.  Laws  1909, 
which  excepts  such  assignments  from  its 
operation,  where  the  trustee  gave  no  bond 
for  the  faithful  performance  of  his  duty, 
the  deed  of  assignment  was  not  recorded  in 
the  office  of  the  registry  of  deeds  as  re- 
quired by  law,  and  no  notice  was  given  the 
complaining  creditor  to  present  its  claim 
or  be  present  at  the  meeting  of  the  creditors 
in  order  to  protect  himself.  Humphrey  v. 
Coquillard  Wagon  Works,  49:  600,  132  Pac. 
899,   37   Okla.   714. 

2.  An  absolute  conveyance  of  property 
by  an  insolvent  person  to  two  of  sixteen 
accommodation  indorsers  of  a  promissory 
note,  "to  indemnify  them — the  said  indor- 
sers— against  loss,"  the  expressed  intention 
being  to  vest  the  title  of  the  property  con- 
veyed in  the  indorsers  for  their  use  and 
benefit,  where  the  deed  authorized  the  gran- 
tees to  sell  the  property  and  pay  the  pur- 
chase price  on  the  note,  and  to  make  such 
deeds  or  other  conveyances  in  the  name  of 
the  creditor  as  might  be  necessary,  and 
provided  that,  if  either  of  the  grantees 
should  fail  or  refuse  to  act  in  pursuance 
of  the  terms  of  the  deed,  the  remaining 
grantee  alone  might  do  so,  and  that  in 
event  of  the  death  or  resignation  of  both, 
the  indorsers  should  name  a  successor  who 
should  have  all  the  powers  of  the  original 
grantees,  the  instrument  containing  no 
clause  of  defeasance  in  case  the  indorsers 
did  not  have  to  pay  the  note, — is  an  as- 
signment for  the  benefit  of  creditors,  and 
not  a  deed  of  trust  in  the  nature  of  a 
DiKest  1-52  KR.A.(N.S.) 


mortgage  to  secure  the  indorsers,  and  there- 
fore a  compliance  with  the  essential  re- 
quirements of  the  statute  on  the  subject 
of  assignments  for  the  benefit  of  creditors 
is  necessary  to  its  validity.  Johnson  v. 
Brewer,  31:  332,  08  S.  E.  589,  134  Ga.  828. 

(Annotated) 

//.   Constmiction  and  effect  of  assign- 
ment. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of,  to  convey  real  property  in  other 
state,  see  Conflict  of  Laws,  103. 

Effect  of  assignment  by  payee  of  note  ob- 
tained by  fraud  and  transferred,  on 
liability  of  maker,  see  Bills  and 
Notes,  125. 

III.  Assignee  or  trustee. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A, 
1-10.) 

Right  of  purchaser  from  assignee  to  use 
tradename,  see  Tradename,  2. 

3.  An  assignee  for  creditors  possesses  no 
greater  right  to  resist  a  rescission  of  a  sale 
to  his  assignor  on  the  ground  of  fraud  than 
did  the  assignor.  Atlas  Shoe  Co.  v.  Bech- 
ard,  10:  245,  66  Atl,  390,  102  Me.  197. 

b.  Rights  and  powers, 

1.  In  general. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 

2.  Property  or  title  taken. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Property  included  in  assignment  generally, 

see  infra,  VI. 
By   assignee  or   trustee  in   insolvency,  see 

Insolvency,  III. 

4.  An  assignment  for  creditors  by  a 
publisher,  of  all  its  personal  property  ex- 
cepting such  as  is  exempt  from  execution, 
with  power  to  the  trustees  to  carry  on  tlie 
business,  empowers  them  to  transfer  to 
purchasers  of  the  assets  the  good  will  with 
respect  to  the  various  publications  the 
right  in  which  it  owns,  so  that  a  purchaser 
of  the  property  used  in  the  business  and 
the  good  will  connected  with  it  may  use 
the  name  of  the  assignor  in  connection  with 
such  publication,  and  advertise  himself  as 
the  successor  of  the  assignor  in  the  business 
so  purchased.  Lothrop  Pub.  Co.  v.  Lothrop, 
L.  &  S.  Co.  5:  1077,  77  N.  E.  841,  191  Mass. 
353.  (Annotated) 


ASSIGNMENT  FOR  CREDITORS,  III.  b,  3— VI. 


187 


8.  Actions  hy. 

(See   also   same   heading  in   Digest   L.R.A. 
1-10.) 

To  enforce  stockholder's  liability,  see  CoE- 
PORATIONS,  361-364. 

5.  Where,  by  statute,  property  fraudu- 
lently transferred  by  one  making  an  assign 
ment  for  benefit  of  creditors  vests  in  the 
assignee,  he  may  avoid  a  pledge  of  securi- 
ties by  a  bank  to  secure  certificates  of  de- 
posit, which  is  invalid  because  they  are 
retained  in  its  possession  and  no  record  is 
made  of  the  transaction  as  required  by 
statute.  Burnes  v.  Anderson,  25:  525,  122 
S.  W.  182,  135  Ky.  355. 

c.  Liahilities. 

(See   also   same   heading   in  Digest   L.R.A. 

1-10.) 

For  interest  on  funds  kept  by  assignee  in 
bank,  see  Evidence,  514. 

6.  One  who  takes  from  a  debtor  an  as- 
signment of  property  sufficient  to  pay  all 
the  debts  of  the  assignor,  under  the  agree- 
ment that  he  will  pay  them,  cannot  avoid 
liability  to  creditors  on  their  claims.  Dy- 
cus  V.  Brown,  28:  190,  121  S.  W.  1010,  135 
Ky.  140. 

7.  An  assignor  for  creditors  cannot  set 
aside  a  sale  of  the  property  to  a  corpora- 
tion because  an  agent  of  the  assignee,  who 
was  managing  the  property,  was  a  stock- 
holder in  the  purchasing  corporation,  and, 
before  the  deed  was  executed,  he  increased 
his  holdings  out  of  stock  issued  to  pay  for 
the  property,  and  one  of  the  assignees  be- 
came a  stockholder,  and  both  were  elected 
directors  of  the  purchasing  corporation. 
Whitman  v.  Mclntyre,  19:  682,  85  N.  E.  426, 
199  Mass.  436. 

8.  An  assignor  for  creditors  cannot  com- 
plain that  the  property  was  sold  to  a  cor- 
poration for  shares  of  its  stock  where  the 
property  was  not  sufficient  to  satisfy  in  full 
the  demand  of  creditors,  and  they  consented 
to  take  the  stock  in  payment  of  their  claims. 
Whitman  v.  Mclntyre,  19:  682,  85  N.  E. 
426,   199   Mass.   436.  (Annotated) 

lY.  Rights  and  liahilities  of  assignee's 
attorney. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 

V.  Validity;  taking  effect. 

(See   also   same   heading  in   Digest   L.R.A. 
1-10.) 

9.  A  general  assignment  for  the  benefit 
of  creditors,  which  does  not  purport  on  its 
face  to  transfer  all  of  the  debtor's  unex- 
empt  property,  and  provides  for  the  pay 
Digest  1-52  L,.R.A.(N.S.) 


ment  to  the  debtor  of  any  surplus  which 
may  remain  in  the  assignee's  hands  after 
satisfying  the  claims  of  the  assentmg  cred- 
itors, and  which  contains  a  provision  di- 
recting the  assignee,  after  converting  the 
property  into  cash,  "to  distribute  the  pro- 
ceeds of  said  property  ratably  among  the 
creditors  of  the  party  of  the  first  part  as 
shall  consent  to  this  trust  agreement  and 
shall  agree,  in  consideration  of  the  bene- 
fits accruing  to  them  thereunder,  to  ab- 
solve and  discharge  tlie  party  of  the  first 
part  from  any  and  all  liability,"  is  void  as 
an  unlawful  attempt  by  the  debtor  to  co- 
erce his  creditors  to  surrender  a  portion  of 
their  just  claims  as  a  condition  to  receiving 
their  just  share  of  the  estate,  and  tends 
directly  to  delay  and  hinder  them  in  the 
collection  of  their  claims,  and  also  on  the 
ground  that  it  does  not  purport  to  transfer 
all  the  debtor's  unexempt  property,  and  pro- 
vides for  the  payment  due  him  of  any  sur- 
plus which  may  remain  in  the  assignee's 
hands,  thus  operating  to  put  the  surplus  be- 
yond the  reach  of  nonassenting  creditors 
and  to  hinder  and  delay  them  in  the  col- 
lection of  their  demands.  MacLaren  v. 
Kramar,  50:  714,  144  N.  W.  85,  26  N.  D. 
244. 

10.  A  secret  arrangement  whereby  a 
statutory  provision  for  the  equal  distribu- 
tion of  assets  among  creditors  is  defeated 
is  void  as  a  fraud  upon  the  general  body 
of  creditors,  notwithstanding  that  the  ad- 
ditional amount  is  guaranteed  and  to  be 
paid  in  the  first  instance  by  a  third  person. 
Brigham  v.  La  Banque  Jacques  Cartier, 
2  B.  R.  C.  449,  30  Can.  S.  C.  429. 

( Annotated ) 

YI.  Property  included. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Property  or  title  taken  by  assignee,  see 
supra,  III.  b,  2. 

Sufficiency  of  description  of  property  in, 
see  Deeds,  39. 

Pledged  property,  see  Pledge  and  Collate- 
ral Security,  9. 

11.  A  vested  remainder  will  pass  by  a 
deed  of  trust  for  benefit  of  creditors  of  all 
the  property  of  the  grantor.  Roberts  v. 
Roberts,  i:  782,  62  Atl.  161,  102  Md.  131. 

12.  Goods  procured  by  an  insolvent  mer- 
chant by  fraudulent  representations  as  to 
his  financial  standing,  without  any  inten- 
tion of  paying  for  them,  do  not  pass  by  his 
assignment  for  the  benefit  of  creditors,  or  to 
his  assignee  in  bankruptcy.  Lowry  v.  Dye, 
17:  1032,  110  S.  W.  833,  33  Ky.  L.  Rep.  57.3. 

(Annotated) 

13.  An  assignment  for  creditors  will  not 
carry  the  right  of  the  assignor  to  exercise 
the  option  of  surrendering  for  its  cash  value 
an  insurance  policy  on  his  life,  paid  up  while 
he  was  in  sufficient  circumstances,  whic!i 
he  has  taken  for  the  benefit  of  his  children. 
McCutehen  v.  Townsend,  16:  316,  105  S.  W. 
937,  127  Ky.  230.  (Annotated) 


188 


ASSIGNMENT  FOR  CREDITORS,  VII.  a— ASSOCIATIONS. 


F//.  Preferences  hy  insolvent. 

a.  In  general. 

(See  also  swme  heading  m  Digest  L.R.A. 
1-10.) 

Necessity  of  surrender  of  preferences  made 
by  bankrupt,  see  BANKitux^rcY,  129, 
130. 

Right  to  prefer  creditors  generally,  see 
Fbauuulent  Conveyances,  III. 

6.   Validity   of. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 

VIII.  Rights,  duties,  and  liabilities  of 
(^'editors;  priority  and  release  of 
claims. 

a.  In  general, 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Priority  of  claims  against  receivers,  see 
Receivers,  III. 

14.  Upon  assignment  for  creditors  by  a 
partnership  which  has  wrongfully  converted 
property  to  its  own  use,  and  also  by  the 
members  thereof,  since  the  individual  mem- 
bers are  liable  severally  for  the  partner- 
ship tort,  the  property  owner  may  prove 
his  claim  against'partnership  assets  equally 
with  the  partnership  creditors  and  also 
against  the  individual  assets  of  the  partners 
equally  with  individual  creditors.  Re  Peck, 
41:  1223,  99  N.  E.  258,  206  N.  Y.  55. 

( Annotated ) 
Trusts;  liens. 

15.  No  trust  relations  exist  between  a 
stockbroker  and  his  customer  as  to  the  pro- 
ceeds of  stock  sold,  which  will  entitle  the 
customer  to  priority  over  other  creditors, 
if  the  fund  is  deposited  in  the  broker's  bank 
account  and  the  broker  makes  an  assign- 
ment for  creditors  before  the  principal 
cashes  the  check  which  the  broker  has 
drawn  in  his  favor  against  the  account. 
Furber  v.  Dane,  27:  808,  90  N.  E.  859,  204 
Mass.  412.  (Annotated) 

16.  A  person  who,  upon  receiving  a 
check  from  his  broker  for  the  proceeds  of 
his  property,  is  confined  to  his  house  by  ill- 
ness, and,  without  notice  of  the  broker's 
financial  embarrassment,  does  not,  by  fail- 
ing to  collect  the  check  in  time,  elect  to 
stand  upon  it  and  waive  any  equitable 
rights  which  he  may  have  to  charge  the 
broker's  bank  account  in  the  hands  of  as- 
signees for  creditors  with  the  payment  of 
his  claim.  Furber  v.  Dane,  27:  808,  90  N. 
E.  859,  204  Mass.  412. 

Z>.  Release  of  claims. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 

IX.  Liability  of  assignor. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 
Digest  1-52  L.R.A.(N.S.) 


ASSIGIiTMENTS    OF    ERROR. 

On  appeal,  see  Appeal  and  Error,  IV.  p. 
In  motion  for  now  trial,  see  New  Trial,  82. 


ASSISTANCE. 


To  passenger,  see  Cabbiebs,  460-480b,  511- 

522. 
To  voters,  see  Elections,  48,  49. 

1.  A  writ  of  assistance  to  place  a  piir- 
ohaser  of  land  at  an  execution  sale  in  pos- 
session thereof  cannot  be  properly  issued 
where  the  defendant  in  the  execution  claims 
that  the  judgment  on  whicli  it  is  founded  is 
void  for  want  of  service,  since  this  writ 
never  issues  except  in  cases  sulistantially 
free  from  doubt  as  to  the  rigiit  of  possession. 
Lundstrom  v.  Branson,  52:  697,  139  Pac. 
1172,  92  Kan.  78.  (Annotated) 

2.  A  writ  of  assistance  should  not  be 
issued  to  put  a  purchaser  at  a  judicial  sale 
on  a  foreign  attacliment  into  possession  of 
the  real  property  supposed  to  have  been 
sold,  which  is  in  the  possession  of  one  not 
a  party  to  the  attachment  suit,  and  who 
claims  the  property  adversely  to  the  parties 
to  such  suit  and  to  all  the  world.  Kirken- 
dall  V.  Weatherley,  9:  515,  109  N.  W.  757, 
77  Neb.  421. 


ASSISTANTS. 


Burden  of  showing  conductor's  authority  to 

employ,  see  Evidence,  185. 
Person  called  to  assist  servant  as  employee 

of  master,  see  Master  and   Servant, 

61-67. 


ASSOCIATIONS. 


I.  In  general,    1—6. 
II.  Members,  7—10. 

a.  In  general,  7. 

b.  Right  to   membership;   expuU 

sion,    8—10. 

As  beneficiary  of  trustee  or  charity,  see 
Charities. 

Communistic  life  by  members  of,  see  Com- 
munism. 

Of  physicians,  validity  of,  see  Conspibacy, 
18. 

Boycott  by,  see  Conspiracy,  b. 

Forbidding  parties  not  members  to  wear 
badges  of  secret  societies,  see  Consti- 
tutional Law,  639. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  IT.  a,  3. 

Of  wholesale  merchants  for  protection 
against  delinquent  customers,  libel  by, 
see  Damages,  43;  Libel  and  Slandeb, 
121. 

False  charge  by  wife  to  association  of 
which  husband  is  member  as  to  his 
character  as  ground  for  divorce,  see 
Divorce  and  Separation,  30. 


ASSOCIATIONS,  I.— 11.  b. 


189 


Liability  of  athletic  association  for  injury 
from  fall  of  stand  used  at  exhibition, 
see  Exhibitions. 

Libel  of  candidate  to  office  in,  see  Libel 
AND  Slandek,  51). 

Libel  by  letter  to  members  of,  in  regard  to 
collection  agent,  see  Libel  and  Slan- 
der,  111-113. 

Requiring  membership  in  ticket  brokers'  as- 
sociation as  condition  of  license,  see 
License,  66. 

Illegal  combination  of,  see  Monopoly  and 
Combinations. 

Ejection  of,  from  rooms  by  municipal  of- 
ficers, see  Municipal  Coepobations, 
390. 

Method  of  voting  by,  see  Pahliamentaey 
Law. 

Benevolent  societies,  see  Benevolent  So- 
cieties. 

Building  and  loan  associations,  see  Build- 
ing AND  Loan  Associations. 

Passenger  association,  see  Cabbiees,  633- 
635. 

Clubs,  see  Clubs. 

Exchanges,  see  Exchanges. 

Joint  stock  company,  see  Joint  Stock 
Company. 

Labor  organizations,  see  Labor  Organiza- 
tions. 

Railroad  relief  association,  see  Railroad 
Relief  Associations. 

Religious  societies,  see  Religious  Socie- 
ties. 

I.  In  general. 

(See  also  same  heading  m  Digest  L.R.A. 
1-10.) 

1.  No  constitutional  privileges  or  im- 
munities are  denied  a  citizen  by  forbidding 
him  to  v?ear  the  badge  of  a  secret  society  of 
which  he  is  not  a  member;  nor  are  exclusive 
privileges  unlawfully  conferred  by  such  leg- 
islation. Hammer  v.  State,  24:  795,  89  N. 
E.  850,  173  Ind.  199.  (Annotated) 
Actions  by  or  against. 

Questioning  for  first  time  on  appeal  ca- 
pacity to  sue  or  be  sued,  see  Appeal 
and  Eerok,  737,  738. 

Jurisdiction  over,  see  Courts,  I.  d. 

Necessary  parties  in  suit  against  unincor- 
porated associations,  see  Parties,  161, 
162. 

Service  of  process  on  unincorporated  as- 
sociation, see  Writ  and  Process,  18. 

2.  A  voluntary  association,  unincorpo- 
rated, which  is  not  organized  to  carry  on 
some  trade  or  business,  or  to  hold  property 
in  the  state  of  Nebraska,  and  does  not  in 
fact  carry  on  a  trade  or  business  or  hold 
property  therein,  cannot  sue  or  be  sued  as 
such.  Cleland  v.  Anderson,  5:  136,  92  N. 
W.  306,  96  N.  W.  212,  98  N.  W.  1075,  66 
Neb.  252,  105  N.  W.  1092,  75  Neb.  273. 

3.  No  action  lies  against  an  unincor- 
porated association  in  the  absence  of  legis-, 
lative  authority.  Karges  Furniture  Co.  v. 
Amalgamated  Woodworkers'  Local  Union 
No.  131,  2:  788,  75  N.  E.  877,  165  Ind.  421. 

(Annotated) 

4.  An  unincorporated  labor  union  can- 
Digest  1-S2  L.R.A.(N.S.) 


not  be  made  a  party  defendant  to  an  action. 
Pickett  V.  Walsh,  6:  1067,  78  N.  E.  753,  192 
Mass.  .572. 

5.  An  injunction  to  restrain  a  boycott 
will  not  lie  against  an  unincorporated  as- 
sociation of  workmen.  American  Federa- 
tion of  Labor  v.  Buck's  Stove  &  Range  Co. 
32:  748,  33  App.  D.  C.  83. 

6.  Unincorporated  labor  unions  are  not 
proper  parties  to  a  suit  to  enjoin  a  strike 
by  their  members.  Reynolds  v.  Davis,  17: 
162,  84  N.  E.  457,  198  Mass.  294. 

//.  Members, 

a.   In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  membership  in  benefit  society,  see 
Benetvolent  Societies,  IV. 

Membership  in  board  of  trade,  see  Ex- 
changes, 4,  5. 

Membership  in  religious  society,  see  PdE- 
LiGious  Societies,  VI. 

7.  Protecting  members  of  secret  so- 
cieties in  the  use  of  its  emblems  is  not 
within  a  constitutional  provision  that  no 
preference  shall  be  given  by  law  to  any 
creed.  Hammer  v.  State,  24:  795,  89  N. 
E.  850,  173  Ind.  199. 

b.  Right  to  membership;  expulsion. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Expulsion  from  benevolent  society,  see  Be- 
nevolent Societies,  13,  14. 

Review  by  courts  of  expulsion,  see  Courts, 
177,  178. 

Mandamus  to  compel  reinstatement  in,  see 
Mandamus,  11. 

Expulsion  from  religious  society,  see  Re- 
ligious Societies,  VI.  b. 

8.  A  voluntary  association  of  physicians 
and  surgeons  the  by-laws  of  which  provide 
for  the  trial  of  a  member  for  a  criminal 
offense  or  for  misconduct,  and  provide  a 
penalty  by  discipline  or  expulsion,  may 
try  a  member  for  acts  which  were  necessari- 
ly involved  in  a  criminal  charge,  tried  in 
the  district  court,  and  of  which  the  member 
was  acquitted.  Miller  v.  Hennepin  County 
Medical  Soc.  50:  579,  144  N.  W.  1091,  124 
Minn.  314.  (Annotati-d) 

9.  A  baseball  club  cannot  be  expelled 
from  a  league  at  a  special  meeting  called 
for  "  specified  piirpose,  wiiere  no  notice  is 
given  that  the  question  of  its  expulsion  will 
be  considered  at  the  meeting.  State  ex 
rel.  Rowland  v.  Seattle  Baseball  Asso.  31: 
512,    111    Pac.    1055,    61    Wash.    79. 

10.  A  provision  of  the  constitution  of 
a  baseball  league  that  the  membership  of 
any  club  may  be  terminated  by  a  unani- 
mous vote  of  the  remaining  clubs  is  not 
affected  by  a  subsequent  resolution  extend- 
ing  the    franchise   of    clubs    in   the    league 


190 


ASSUMPSIT,  I.— II.  b. 


for  periods  of  five  years,  where  it  does  not 
appear  that  the  resolution  was  passed  by 
a  unanimous  vote,  as  required  by  the  con- 
stitution to  amend  it,  and  no  reference  to 
tiie  constitutional  provision  is  made  In 
the  resolution.  State  ex  rel.  Rowland  v. 
Seattle  Baseball  Asso.  31:512,  111  Pac. 
1055,  61   Wash.  79. 


ASSUMPSIT. 


7.  In  general,  1—9. 
II.  Money  paid  or  received,  10—65. 

a.  Money  paid,  10. 

b.  Money   received,    11—27. 

c.  Recovering      back      payments, 

28-65. 

1.  In   general,   28—4:9. 

2.  Of    assessment,    taxes,    or 

license  fees,  50—64. 

3.  Public  money,  65. 

On  an  account  stated,  see  AooountSj  4. 

Condition  of  right  to  maintain  suit,  see 
Action  or  Suit,  27. 

Raising  for  first  time  on  appeal  objection 
to  form  of  action,  see  Appeal  and 
Ebrob,  756. 

Waiver  of  objection  as  to  form  of  action, 
see  Appeal  and  Ekbor,  821. 

Against  bank  collecting  checks  cashed  on 
forged  indorsement,  see  Banks,  133. 

By  supreme  lodge  for  benefit  funds  distrib- 
uted by  subordinate  lodge,  see  Benev- 
olent Societies,  6,  7. 

Remedy  under  ultra  vires  contract,  see  CoE- 
porations,  90. 

Effect,  on  right  to  maintain,  of  mistakenly 
bringing  trover,  see  Election  of  Rem- 
edies, 40. 

Against  agent,  see  Principal  and  Agent, 
119. 

Amendment  of  declaration  so  as  to  make 
action  one  in  tort,  see  Pleading,  103. 

SuflSciency  of  averment  of  promise  to  pay, 
in  declaration  in  assumpsit  on  promis- 
Bory  note,  see  Pleading,  163. 

J.  In  general. 

(Bee   also   same   heading   in  Digest  L.R.A. 

1-10.) 

1.  An  action  will  lie  to  recover  a  sum 
certain  whenever  one  has  the  money  of 
another  which  he,  in  equity  and  good  con- 
science, has  no  right  to  retain.  Brooks  v. 
Hinton  State  Bank,  30:  807,  110  Pac.  46, 
26  Okla.  56. 

2.  An  action  will  lie  to  recover  a  sum 
certain  whenever  one  has  the  money  of  an- 
other which  he,  in  equity  and  good  con- 
science, has  no  right  to  retain.  Allsman 
v.  Oklahoma  City,  16:  511,  95  Pac.  468,  21 
Okla.  142. 

3.  In  the  absence  of  fraud,  mere  igno- 
rance by  one  rendering  gratuitous  services, 
that  recipient  is  able  to  pay  for  them,  will 
not  entitle  him  to  compensation  therefor. 
Digest  1-52  I..R.A.(N.S.) 


Hanrahan   v.   Baxter,    16:  1046,    116  N.   W. 
595,  —  Iowa,  — . 

4.  Assumpsit  will  not  lie  on  behalf  of 
one  who  has  contributed  liis  property  to  a 
communistic  religious  society  of  which  he  is 
a  member,  in  consideration  of  receiving 
support  for  himself  and  his  family  to  re- 
gain possession  of  the  property  upon  his 
withdrawal  from  the  society.  Ruse  v.  Wil- 
liams, 45:  923,  130  Pac.  887,'  14  Ariz.  445. 

5.  One  who  voluntarily  and  with  full 
knowledge  of  absence  of  indebtedness  gives 
another  his  note  cannot  compel  him  to  re- 
fund what  the  maker  is  compelled  to  pay 
thereon  to  a  bona  fide  holder  for  value, 
without  notice.  Dickinson  v.  Carroll,  37: 
286,  130  N.  W.  829,  21  N.  D.  271. 

6.  Common  counts  are  not  applicable 
in  an  action  against  an  indorser,  as  such, 
of  negotiable  promissory  notes.  Worley 
V.  Johnson,  33:  639,  53  So.  543,  60  Fla.  294. 

7.  The  liability  of  a  bank  for  negli- 
gence in  collecting  a  check  deposited  for 
that  purpose  cannot  be  enforced  under  the 
common  counts.  Jefferson  County  Sav. 
Bank  v.  Hendrix,  i :  246,  39  So.  295,  147  Ala. 
690. 

8.  A  recovery  under  the  common  counts 
may  be  had  against  one  to  whom  money  has 
been  delivered  for  investment,  and  who, 
after  using  it  for  his  own  benefit,  delivers 
to  the  customer  worthless  obligations  of  a 
corporation  of  which  he  is  president.  Dono- 
van V.  Purtell,  i:  176,  75  N.  E.  334,  216  111. 
629. 

9.  A  discharged  employee  cannot  await 
the  termination  of  the  contract  period  of 
service  to  hold  the  employer  liable  for  the 
wages  which  would  have  accrued  had  he 
continued  in  the  service  to  the  expiration  of 
the  term.  Derosia  v.  Firland,  28:  577,  76 
Atl.  153,  83  Vt.  372.  (Annotated) 

//.  Money  paid  or  received. 

a.  Money   paid. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

10.  A  purchaser  of  real  estate  upon 
which  a  mortgage  had  existed,  but  which 
had  been  paid  off  after  the  assessment  of  a 
tax  upon  the  mortgage  interest,  which  be- 
came a  lien  thereon,  cannot  pay  the  tax 
upon  refusal  of  the  mortgagee  to  do  so,  and 
maintain  an  action  against  him  for  money 
paid  to  his  use.  William  Ede  Co.  v.  Hey- 
wood,  22:  562,  96  Pac,  81,  153  Cal.  615. 

(Annotated) 

ft.  Money  received. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Recovery  by  payee  of  check  against  collect- 
ing bank  as  for  money  had  and  received, 
see  Banks,  174. 

Who  may  maintain  action,  see  Parties,  59, 
62. 

Complaint  in  action  of,  see  Pleading,  231. 


ASSUMPSIT,  II.  b. 


191 


11.  An  action  for  money  had  and  re- 
ceived will  lie  to  recover  money  secured 
from  the  plaintiff  without  consideration,  in 
reliance  upon  fraudulent  representations 
made  by  the  defendant.  Martin  v.  Hut- 
ton,  36:  602,  132  N.  W.  727,  90  Neb.  34. 

{ Annotated ) 

12.  The  drawer  of  a  check  for  a  speci- 
fied number  of  cents  may,  in  case  it  is 
cashed  by  mistake  as  calling  for  that  num- 
ber of  dollars,  maintain  an  action  for  money 
had  and  received  against  the  payee  to  re- 
cover the  difference  between  tlie  amount 
called  for  and  that  collected  by  him.  Wag- 
ener  v.  United  States  Nat.  Bank,  42:  1135, 
127  Pac.  778,  63  Or.  299.  (Annotated) 

13.  One  whose  property  has  been  im- 
proved by  the  partial  compliance  by  a  mu- 
nicipality with  its  agreement  to  locate  pub- 
lic buildings  near  it  in  consideration  of  a  do- 
nation by  him  towards  their  cost  cannot, 
upon  the  refusal  of  the  municipality  fully 
to  comply  with  its  agreement,  recover  back 
the  amount  paid  by  him  as  money  had  and 
received.  Edwards  v.  Goldsboro,  4:  589,  53 
S.  E.  652,  141  N.   C.  60. 

14.  An  action  for  money  had  and  re- 
ceived may  be  maintained  by  one  who  has 
loaned  money  to  a  municipal  corporation, 
which  has  been  used  by  it  for  legitimate 
corporate  purposes  authorized  by  law,  al- 
though the  municipality  had  no  power  to 
borrow  the  money,  and  the  note  given  there- 
for was  void.  Luther  v.  Wheeler,  4:  746,  52 
S.  E.  874,  73  S.  C.  83. 

15.  An  action  for  money  had  and  re- 
ceived may  be  maintained  by  one  who  has 
loaned  money  to  a  county,  which  has  been 
used  by  it  to  discharge  a  legally  incurred 
liability  for  a  current  expense,  although 
the  officials  of  the  county  had  no  authority 
to  borrow  the  money  or  to  give  a  note 
therefor.  Butts  County  v.  Jackson  Bkg.  Co. 
15:  567,  60  S.  E.   149,   129  Ga.  801. 

(Annotated) 

16.  One  who  wrongfully  takes  possession 
of  cattle  which  are  subject  to  chattel  mort- 
gage, and  after  their  sale  disclaims  all  title 
to  them,  and  consents  that  the  proceeds  be 
turned  over  to  one  claiming  them  under  an- 
other mortgage,  cannot,  when  a  judgment  is 
recovered  against  him  for  their  value  by 
the  mortgagee,  which  he  satisfies,  maintain 
a  suit  against  the  one  to  whom  the  pro- 
ceeds were  turned  over,  for  money  had  and 
received  to  his  use,  for  the  purpose  of  re- 
imbursing himself  for  his  outlav.  Third 
Nat.  Bank  v.  Rice,  23:  1167,  161  "^Fed.  822, 
88  C.  C.  A.  640. 

17.  An  action  may  be  maintained 
against  persons  who  enter  into  a  written 
contract  for  the  sale  of  lands,  assuming  to 
act  as  agents  for  the  owners,  and  receive 
money  to  be  paid  to  the  owners  as  part  of 
the  consideration,  for  money  had  and  re- 
ceived to  the  use  of  the  person  from  whom 
they  received  it,  independently  of  the  con- 
tract, where  they  retain  the  money  and  the 
owners  refuse  to  be  bound  by  the  contract, 
as  in  such  case  the  law  implies  an  agree- 
ment to  restore  the  money,  because  the  con- 
tract which  the  agents  assumed  to  have 
Digest   1-52  I..R.A.(N.S.) 


authority  to  make  has  failed,  and  they  have 
the  plaintiffs'  money  in  their  possession. 
Simmonds  v.  Long,  23:  553,  101  Pac.  1070, 
80  Kan.  155.  (Annotated) 

18.  An  action  against  the  clerk  of  an 
auction  will  lie  to  compel  the  return  of 
money  paid  on  a  bid,  without  an  order 
from  the  seller,  where  the  article  purchased 
does  not  comply  with  the  seller's  warranty, 
and  the  sale  is  rescinded,  and  the  article 
returned  to  and  accepted  by  the  seller.  Mc- 
Clean  v.  Stansberry,  35:  481,  131  N.  W.  15, 
151  Iowa,  312.  (Annotated) 

19.  A  broker  who  in  good  faith  receives 
from  a  bank  teller  for  speculation  money 
which  he  had  stolen  from  the  bank,  but 
which  he  represented  was  the  money  of  a 
depositor  for  whom  he  was  acting  as  agent, 
is  not  liable  to  the  bank  for  the  money  so 
received,  although  the  money  apparently 
belonged  to  the  bank  and  was  delivered  over 
its  counter,  and  the  broker  made  no  further 
inquiry,  the  test  being  honesty  and  good 
faith,  not  diligence.  First  National  Bank 
V.  Gibert,  25:  631,  49  So.  593,  123  La.   845. 

20.  A  ward  cannot  sue  her  guardian  in 
assumpsit  to  enforce  payment  of  the 
amount  remaining  in  the  guardian's  hands, 
before  settlement  of  his  account  in  the 
court  having  original  jurisdiction  thereof, 
although  the  guardianship  has  in  law  ceased, 
since  for  purposes  of  settlement  the  guard- 
ianship is  deemed  to  continue.  Mitchell  v. 
Penny,  26:  788,  66  S.  E.  1003,  66  W.  Va. 
660.  (Annotated) 

21.  A  bona  fide  purchaser  at  sheriff's 
sale  may  recover  the  amount  of  his  bid 
in  an  action  for  money  had  and  received, 
from  an  execution  creditor  who  received 
the  proceeds  of  the  sale,  if  the  chattels  sold 
are  at  the  time  of  the  sale  not  the  prop- 
erty of  the  execution  debtor,  but  of  a  stran- 
ger, who  takes  it  from  the  purchaser. 
Dresser  v.  Kronberg,  36:  1218,  81  Atl.  487, 
108  Me.  423.  (Annotated) 

22.  A  mortgagee  of  a  mining  claim 
who  redeems  from  an  execution  sale  under  a 
prior  judgment  against  the  property,  with 
knowledge  that  the  purchaser  at  the  sale 
had  relocated  the  property  because  the 
judgment  debtor  had  failed  to  perform  the 
required  assessment  work,  in  consequence 
of  which  the  execution  title  failed,  cannot 
maintain  an  action  for  money  received 
against  the  one  from  whom  the  redemption 
was  made.  Copper  Belle  Min.  Co.  v.  Glee- 
son,    48:  481,    134    Pac.    285,    14    Ariz.    548. 

(Annotated) 

23.  A  mortgagee  of  a  mining  claim 
who  has  redeemed  from  an  execution  sale 
of  the  property  under  a  prior  judgment  at 
which  the  judgment  creditor  became  the 
purchaser  cannot,  after  the  time  for  reviv- 
ing the  judgment  has  elapsed,  compel  the 
purchaser  to  refund  the  redemption  money 
because  the  title  to  the  property  failed  on 
account  of  a  relocation  for  failure  to  per- 
form the  assessment  work,  although  the 
execution  creditor  liimself  owns  the  reloca- 
tion claim.  Copper  Belle  Min.  Co.  v.  Glee- 
son,  48:  481,   134  Pac.  285,   14  Ariz.  ,548. 

24.  An  action  to  recover  money  deposited 


192 


ASSUMPSIT,  II.  c,  1. 


in  lieu  of  bail  for  one  accused  of  violation 
of  a  umnicipal  ordinance  may,  where  there 
is  no  authority  to  accept  cash  bail;  be  main- 
tained by  the  one  making  the  deposit,  al- 
though he  is  not  the  defendant  in  tlie  prose- 
cution. Brasfield  v.  Milan,  44:  1150,  155  S. 
W.  926,  127  Tenn.  561. 

25.  Money  deposited  in  lieu  of  bail  for 
one  accused  of  violation  of  a  municipal  or- 
dinance may,  where  there  is  no  statutory 
autliority  to  accept  cash  bail,  be  recovered, 
although  it  has  been  declared  forfeited  for 
nonappearance  of  accused.  Brasfield  v.  Mi- 
lan, 44:  1 150,  155  S.  W.  926,  127  Tenn.  561. 

( Annotated ) 

26.  A  mortgagor  with  right  of  redemp- 
tion still  existing  may  maintain  an  action 
for  money  had  and  received  to  recover  a  sur- 
plus obtained  by  the  mortgagee  by  sale  of 
the  mortgaged  propertv.  Dow  v.  Bradbury, 
44:  1041,  85  Atl.  896,  110  Me.  249. 

(Annotated) 

27.  The  assignee  of  a  portion  of  a  claim 
against  a  county  for  public  work  may  re- 
cover as  for  money  had  and  received  the 
amount  of  such  assignment  from  a  second 
assignee,  who  has  collected  the  full  amount 
from  the  county,  where  it  appears  that  the 
first  assignment  was  pinned  to  the  claim 
when  the  second  assignment  was  made,  and 
was  so  attached  when  the  claim  was  filed 
with  the  county  clerk  by  the  second  as- 
signee, but  before  payment  had  become  de- 
tached and  lost.  Brooks  v.  Hinton  State 
Bank,  30:  807,  110  Pac.  46,  26  Okla.  56. 

(Annotated) 

o.  Recovering   back  payments. 

1.  In  general. 

(See   aUo    same   heading   in  Digest   L.R.A. 
1-70.) 

Inapplicability  to  sale  out  of  state  of  pro- 
vision for  recovering  back  money  paid, 

see  Conflict  of  Laws,  1. 
Of  money  deposited  as  bail,  see  Bail  and 

Recognizance,  29. 
Of  amount  paid  on  forged  negotiable  paper, 

see  Banks,  110-120;  Checks,  53. 
Of  payment  on  bill  or  note,  see  Bills  and 

Notes,  II. 
Insurance   premium    paid,    see    Insurance, 

434-444. 
Of  rent  paid  in  advance  where  tenement  is 

destroyed,  see  Landlord  and  Tenant, 

191,  192. 
By  agent  of  principal's  money,  see  Parties, 

59. 
Of  discriminatory  rates  charged  by  carrier, 

see  Pleading,  157. 

28.  Money  paid  to  secure  services  which 
the  other  contracting  party  has  no  legal 
right  to  perform  may  be  recovered  back  so 
long  as  the  contract  remains  executory. 
Deaton  v.  Lavvson,  2:  392,  82  Pac.  879,  40 
Wash.  486. 

29.  In  the  absence  of  a  statute  defining 
the  maximum  lawful  rate  for  water  service 
of  an  irrigation  company,  one  from  whom 
Digest  1-52  11R.A.(N.S.) 


prices  are  exacted  which  are  unreasonably 
high,  and  who  pays  them  under  protest  or 
under  such  circum.stances  as  do  not  amount 
to  acquiescence  in  the  charge,  may  recover 
the  excess  over  a  reasonable  price.  Salt 
Kiver  Valley  Canal  Co.  v.  Nelssen,  12:  711, 
85  Pac.  117i  10  Ariz.  9. 

30.  Fees  \vront;fully  exacted  under  an 
unconstitutional  statute,  by  a  county  clerk 
by  reason  ol  his  oUicial  po.sition,  lor  the 
filing  of  invcntoiies  and  iippraisemcnts  of 
decedent's  estates,  required  to  be  filed  with- 
in a  given  time  in  order  that  the  adminis- 
tration may  proceed,  may  be  recovered  as 
involuntarily  paid,  although  the  filing  could 
have  been  compelled  by  mandamus.  Trower 
v.  San  Francisco,  15:  183,  92  Pac.  1025,  152 
Cal.  479.  (Annotated) 

31.  To  entitle  a  shipper  to  recover  back 
money  paid  under  a  discriminatory  freight 
rate,  it  is  not  necessary  that  the  payment 
should  have  been  made  under  protest.  Hil- 
ton Lumber  Co.  v.  Atlantic  Coast  Line  R. 
Co.  6:  225,  53  S.  E.  823,  141  N.  C.  171. 

32.  The  insured  may  recover  back 
premiums  paid  on  a  policy  of  insurance 
which  never  attached,  and  under  which  the 
insurance  company  assumed  no  risk,  un'-ss 
he  has  been  guilty  of  fraud,  or  tlie  contract 
is  illegal  and  he  is  in  pari  delicto.  Re 
Millers'  &  M.  Ins.  Co.  4:  231,  106  N.  VV. 
485,  97  Minn.  98. 

33s  Where  no  provision  is  made  for  the 
payment  of  taxes,  in  a  lease  of  real  estate, 
and  the  lease  provides  that  the  structures 
or  improvements  put  upon  the  lot  by  the 
lessee  are  removable,  and  the  landlord  is 
compelled  to  pay  the  entire  amount  of  the 
taxes  to  save  the  property  from  being  sold 
at  tax  sale,  an  action  may  be  maintained 
by  him  against  the  tenant  for  the  recovery 
of  that  portion  of  the  tax  levied  upon  the 
improvements.  La  Paul  v.  Hevwood,  32: 
368,  129  N.  W.  763,  113  Minn.  *376. 
Voluntary  payments. 
Evidence  as  to  voluntariness,  see  Evidence, 

1930, 
Right  to  recover  back  insurance  premiums, 

see  Insitrance,  434-444. 
See  also  infra,  57-60, 

34.  Excessive  fees  exacted  by  attorneys 
from  a  client  under  an  illegal  contract  for 
compensation  may  be  recovered  although 
voluntarily  paid;  and  the  fact  that  the  rela- 
tion of  attorney  and  client  is  temporarily 
broken  before  the  end  of  the  service  by  em- 
ployment of  another  attorney  is  immaterial 
when  the  other  attorney  does  not  represent 
the  client  in  any  controversy  about  fees. 
Donaldson  v.  Eaton,  14:  1 168,  114  X.  W. 
19,  136  Iowa,  650. 

35.  Payments  voluntarily  made  for  tele- 
phone service  in  excess  of  the  rates  which 
the  company's  charter  authorizes  it  to  exact, 
under  a  contract  entered  into  without  fraud, 
misrepresentation,  or  mistake  of  fact,  can- 
not be  recovered.  Illinois  Glass  Co.  v.  Chi- 
cago Teleph.  Co.  i8:  124,  85  N.  E.  200,  234 
111.    535.  (Annotated) 

36.  One  who  has  accepted  and  paid  a 
draft  attached  to  a  bill  of  lading  for  prop- 
erty purchased  by  and  to  be  delivered  to 


ASSUMPSIT,  II.  c,  2. 


;L93 


him,  to  a  bank  whicli  purchased  the  draft 
in  due  course  of  business,  cannot,  upon  fail- 
ure of  the  consideration,  recover  bacls  from 
the  bank  the  amount  so  paid.  Lewis  v.  W. 
H.  Small  &  Co.  6:  887,  96  S.  W.  1051,  117 
Tenn.   153. 

37.  A  vendee  having  no  notice  of  the 
violation  of  the  statute  may  recover  back 
money  paid  for  an  interest  in  a  patent 
right  wliich  was  sold  without  filing  a  copy 
of  the  letters  or  an  affidavit  of  genuine- 
ness with  the  county  clerk,  as  required  by 
statute,  a  breach  of  which  is  made  a  mis- 
demeanor. Miehener  v.  Watts,  36:  142,  96 
N.  E.  127,  176  Ind.  376. 

:J8.  A  county  which,  with  knowledge  of 
the  facts,  returns  money  voluntarily  paid  in 
satisfaction  of  a  tax  assessment  subsequent- 
ly declared  to  be  invalid,  cannot  maintain 
an  action  to  recover  the  money  so  paid,  al- 
though it  could  not  liave  been  compelled  to 
make  the  refund.  Adair  County  v.  Johns- 
ton. 45:  753,  142  N.  W.  210,  160  Iowa,  683. 

(Annotated) 
Mistake. 
Mistake  as  ground  for  recovery  of  payment 

by  bank,  see  Banks,  86,  87. 
When  limitations  begin  to  run  against  ac- 
tion, see  Limitation  of  Actions,  120. 
Recovery  by  agent  of  principal's  money,  see 

Parties,  59. 
See  also  infra,  61,  62. 

39.  An  illiterate  debtor  who,  in  making 
a  final  payment  upon  his  debt,  forgets  one 
payment  and  the  receipt  therefor,  so  that  he 
pays  more  than  is  due,  may  recover  the  over- 
payment, and  is  not  precluded  therefrom  on 
the  theory  this  his  mistake  was  one  of  law. 
Simms  v.  Vick,  24:  517,  65  S.  E.  621,  151  N. 
C.  78.  (Annotated) 

40.  The  rule  permitting  a  recovery  of 
money  paid  under  a  mutual  mistake  of 
fact  is  not  applicable  in  case,  to  avoid  suit, 
an  insurance  company  pays  tho  amounts 
due  on  policies  on  the  life  of  a  person  who 
has  disappeared,  but  who  subsequently  re- 
appears. New  York  L.  Ins.  Co.  v.  Chitten- 
den. 11:  233,  112  N.  W.  96,  134  Iowa,  613. 

41.  One  who  pays  a  sum  of  money  in  or- 
der to  secure  the  release  of  her  parents 
from  what  she  mistakenly  supposes  to  be 
a  binding  contract  for  the  sale  of  their  land 
is  not  a  volunteer  in  the  transaction.  Tuck- 
er v.  Denton,  15:  289,  106  S.  W.  280,  32  Ky. 
L.   Rep.   521. 

42.  The  payment  of  money  by  a  daugh- 
ter to  secure  the  release  of  her  parents  from 
what  she  mistakenly  supposes  to  be  an  en- 
forceable written  contract  for  the  sale  of 
their  land  will  not  be  upheld  because  of  the 
moral  obligation  of  the  parents  to  carry- 
out  their  verbal  agreement  of  sale.  Tucker 
v.  Denton.  15:  289,  106  S.  W.  280,  32  Ky. 
L.  Rep.  521. 

43.  One  who  pays  more  than  a  fourth  of 
the  estimated  value  of  land  which  she  mis 
takenly  believes  her  parents  have  bound 
themselves  to  convey,  in  order  to  have  the 
contract  canceled,  may  recover  it  back,  the 
mistake  being  as  to  an  existing  fact,  mate- 
rial, controlling,  and  mutual,  or,  if  not  mu- 
tuai,  the  vendees  being  guilty  of  fraud  in 
Digest   1-52  L.R.A.(N.S.) 


receiving  the  money  when  they  knew  the 
contract  was  unenforceable.  Tucker  v.  Den- 
ton, 15:  289,  106  S.  W.  280,  32  Ky.  L.  Rep. 
521. 

44.  A  bank  which,  under  mistake  of  fact 
as  to  the  genuineness  of  the  obligation,  de- 
livers to  an  ex-county  treasurer  upon  a 
forged  obligation  of  the  county  a  check  pay- 
able to  the  order  of  the  county  treasurer, 
which  the  ex-treasurer  delivers  to  the  coun- 
ty in  satisfaction  of  personal  indebtedness 
to  it,  may  recover  back  the  payment  if  the 
claim  of  the  county  against  the  ex- treasurer 
and  his  sureties  has  been  in  no  manner 
jeopardized  or  impaired.  Hathaway  v.  Del- 
aware County,  13:  273,  78  N.  E.  153,  185 
N.   Y.   368.  (Annotated) 

45.  To  enable  a  bank  to  recover  back 
from  a  county  money  deposited  in  another 
bank  to  the  order  of  the  county  upon  the 
faith  of  a  forged  note  of  the  county,  it  must 
be  shown  that  the  money  was  actually  ap- 
propriated to  the  discharge  of  valid  obliga- 
tions of  the  county.  Hathaway  v.  Dela- 
ware County,  13:  273,  78  N.  E.  153,  185  X. 
Y.  368. 

46.  A  drawer  whose  check  was  not  col- 
lected because  of  the  negligence  of  a  bank 
to  which  it  had  been  indorsed  and  forward- 
ed for  collection  is  equitably  entitled  to  re- 
cover from  the  payee,  on  the  ground  of  mis- 
take, the  amount  of  a  second  check,  is- 
sued on  account  of  the  supposed  dishonor  of 
the  first  one,  and  duly  paid.  Noble  v. 
Doughten,  3:  1167,  83  Pac.  1048,  72  Kan. 
336. 

47.  An  employee  who,  under  a  mistake 
as  to  his  rights,  turns  over  to  his  employer 
tips  given  him  by  customers  for  his  person- 
al use,  may  compel  the  employer  to  return 
them  to  him.  Polites  v.  Barlin,  41:  1217, 
149  S.  W.  828,  149  Ky.  376.  (Annotated) 
Duress. 

What   constitutes   payment   of  taxes  under 

duress,  see  Duress,  3. 
See  also  infra,  63,  64. 

48.  Money  paid  by  a  brick  manufacturer 
at  the  demand  of  a  labor  union,  to  prevent  its 
members  from  refusing  to  handle  his  prod- 
uct because  he  had  sold  to  unfair  bosses, 
may  be  recovered  back,  since  it  was  ob- 
tained by  extortion.  March  v.  Bricklayers' 
&  Plasterers'  Union  No.  1,  4:  1198,  63  Atl. 
291,  79  Conn.  7.  (Annotated) 

49.  One  who  negotiates  a  loan  to  take  up 
an  existing  mortgage  upon  which  foreclosure 
proceedings  have  been  begun,  and  who  is  re- 
quired, under  protest,  to  pay  an  illegal  bonus 
to  secure  a  discharge  of  the  mortgage,  acts 
under  duress  in  so  doing,  and  is  entitled  to 
recover  the  amount  paid.  Kilpatrick  v. 
Germania  L.  Ins.  Co.  2:  574,  75  N.  E.  1124, 
183  N.  Y.   163.  (Annotated) 

2.  Of  assessment,  tares,  or  license  fees. 

(See   also    same   heading   in   Digest   L.R.A. 
1-10.) 

License  fee  paid  to  conduct  unlawful  busi- 
ness, see  CoNTBACTS,  583. 


13 


^.crt y./^.^L.k^   ;»;< 


194 


ASSUMPSIT,  II.  c,  2. 


Duty  to  return  unearned  license  foe  for  sale 
of  liquor,  see  Intoxicating  Liquors, 
58,  59. 

Who  may  maintain  action,  see  Parties,  138. 

Pleading  in  action  to  recover  taxes  paid, 
see  Pleading,  41. 

Against  state,  see  State,  28. 

See  also  supra,  23. 

50.  In  the  absence  of  a  statute  permit- 
ting it,  the  legal  representatives  of  a  de- 
ceased licensee  cannot  recover  any  part  of 
the  amount  paid  for  the  liquor  license  be- 
cause of  the  latter's  death  before  the  ex- 
piration of  the  term  of  the  license.  Wood 
V.  School  Dist.  No.  32,  15:  478,  115  N.  W. 
308,  80  Neb.  722. 

51.  A  liquor  dealer  cannot  recover  the 
unearned  portion  of  his  license  fee  when  his 
license  is  summarily  revoked  by  the  mu- 
nicipal authorities  because  he  was  not  a  fit 
person  to  conduct  the  business.  Roberts  v. 
Boise  City,  45:  593i  132  Pac.  306,  23  Idaho, 
716.  (Annotated) 

52.  One  who  secures  and  pays  for  a  li- 
cense to  sell  intoxicating  liquor,  under  an 
interpretation  of  the  law  by  a  nisi  prius 
court,  may,  upon  reversal  of  the  decision 
by  a  ruli>ng  that  there  was  no  authority  to 
issue  the  license,  recover  so  much  of  the 
money  so  paid  as  is  in  proportion  to  the 
remainder  of  the  term.  Scott  v.  New  Cas- 
tle, 21:  112,  116  S.  W.  788,  132  Ky.  616. 

53.  One  to  whom  a  license  to  sell  in- 
toxicating liquors  has  been  duly  issued  by 
a  city  is  entitled  to  recover  back  the  un- 
earned portion  of  the  license  fee,  where,  be- 
fore the  expiration  of  the  year  for  which 
the  license  was  granted,  the  licensee  is 
compelled  to  close  his  place  of  business  be- 
cause of  an  enactment  of  a  state  prohibi- 
tory law.  Allsman  v.  Oklahoma  City,  16: 
511,  95  Pac.  468,  21  Okla.  142.   (Annotated) 

54.  The  holder  of  a  license  to  sell  intox- 
icating liquors,  who,  upon  the  enactment 
by  the  general  assembly  of  a  law  providing 
for  a  higher  license  fee,  ceases  to  transact 
business  before  the  expiration  of  the  year 
for  which  the  license  was  granted,  is  not 
entitled  to  have  that  proportion  of  the  fee 
representing  the  portion  of  the  year  in  which 
he  did  not  sell  liquor  refunded  to  him,  aft- 
er the  term  of  the  license  has  expired.  Fitz- 
gerald V.  Witchard,  16:  519,  61  S.  E.  227, 
130  Ga.  552.  (Annotated) 

55.  A  taxpayer  cannot  maintain  a  suit 
against  a  county  to  recover  taxes  illegally 
and  wrongfully  exacted  by  the  oflicers  of 
the  county  after  the  taxes  have  been  paid 
out  by  its  disbursing  officers.  Com.  use  of 
Devoe  v.  Boske,  11:  1104,  99  S.  W.  316,  124 
Ky.  468.  (Annotated) 

56.  The  grounds  of  protest  which  ac- 
companies a  payment  of  taxes  need  not  be 
set  out,  in  order  to  authorize  a  recovery 
of  the  amount  paid,  if  the  tax  was  invalid. 
Whitford  v.  Clarke,  36:  476,  80  Atl.  257,  33 
R.  I.  331.  (Annotated) 
Volnntary  payments. 

57.  One  who  pays  an  illegal  tax  to  se- 
cure the  rebate  allowed  by  law  for  prompt 
payment  cannot  recover  the  money  paid 
Digest  1-52  i1r.A.(N.S.) 


where,  under  the  statute,  he  has  a  right 
to  test  in  court  tlie  right  to  enforce  the 
tax,  and  the  taxing  district  has  applied  the 
money  to  the  purposes  for  which  it  wap 
collected.  Louisville  v.  Becker,  28:  1045, 
129  S.   W.   311,  139  Ky.   17. 

98.  Where  an  illegal  tax  is  levied  on  the 
property  of  a  taxpayer,  which  he  is  com- 
pelled to  and  does  pay,  it  is  to  be  regard- 
ed as  an  involuntary  payment,  which  he 
may  recover  back;  but,  if  he,  in  order  to 
secure  a  rebate,  pays  the  whole  of  such  tax 
prior  to  the  date  when  the  first  instalment 
becomes  due,  including  the  second  half  due 
in  June  of  the  following  year,  the  payment 
of  the  second  half  thus  made  to  obtain  the 
rebate  is  deemed  to  be  volr.ntary,  and  is 
therefore  not  recoverable.  Atchison,  T.  & 
S.  F.  R.  Co.  V.  Humboldt,  41:  175,  123  Pac. 
727,  87  Kan.  1.  (Annotated) 

59.  Payments  of  monthly  fees  for  a  sa- 
loon license  with  full  knowledge  of  the 
facts,  without  protest  or  objection,  and  with- 
out urging  on  the  part  of  the  oilicials,  ex- 
cept a  warning  that  the  licensee  must  be 
more  prompt  or  he  was  liable  to  be  arrested, 
and  a  statement,  wlien  part  of  the  fee  for  a 
month  had  been  paid,  that  the  balance  must 
be  paid  on  the  following  day  or  arrest  would 
follow,  are  not  involuntary,  so  that  they 
can  be  recovered  in  case  the  ordinance  pro- 
viding for  the  license  proves  to  be  invalid. 
Eslow  v.  Albion,  22:  872,  117  N.  W.  328,  153 
Mich.    720.  (Annotated) 

60.  A  city,  when  about  to  distrain  for 
taxes,  may  make  an  agreement  with  the 
taxpayer  that  the  payment  is  under  pro- 
test, which  may  be  carried  out  in  any  sub- 
sequent litigation  to  recover  back  the  money 
paid.  State  Nat.  Bank  v.  Memphis,  7:  663, 
94  S.  W.  606,  116  Tenn.  641. 
Mistake. 

61.  Where  a  purchaser  at  tax  sale  re- 
cords his  deed,  lists  and  returns  the  prop- 
erty for  taxation  as  his,  and  pays  the  taxes 
on  it  for  the  purpose  of  perfecting  his  title 
under  the  Constitution,  he  cannot,  years 
afterwards,  demand  a  return  of  such  taxes 
on  the  theory  that  they  were  paid  in  er- 
ror. Lisso  &  Brother  v.  Police  Jury, 
31:  1141,  53  So.  566,  127  La.  283. 

(Annotated) 

62.  Where  money  paid  by  mistake  of  law 
may  be  recovered,  money  paid  for  a  license 
to  sell  soft  drinks  under  an  ordinance  sup- 
posed to  be  valid,  which  payment  might 
have  been  enforced  by  fine  and  imprison- 
ment, may  be  recovered,  and  action  by  the 
licensee  under  the  license  is  immaterial, 
since,  the  ordinance  being  invalid,  the  li- 
cense was  not  necessary  to  protect  the  li- 
censee from  prosecutions  for  making  sales. 
Spalding  v.  Lebanon,  49:  387,  160  S.  W. 
751,  150  Ky.  37.  (Annotated) 
Duress. 

Nature    of    action    to    recover    money    paid 
under,  see  Action  or  Suit,  84. 

63.  Payment  of  water  rates  under  pro- 
test, to  avoid  the  shutting  off  of  the  water, 
which  would  be  a  great  detriment  to  the 
propertj'  owner,  is  under  duress,  within  the 
rule  that  payments  so  made  may  be  recov- 

V.t'..ri>.*'..J»...i     ^A..  - 


ASSOIPSIT,   11.   c,   3— ATTACHMENT. 


195 


ered  back.     Chicago  v.  Northwestern   Mut. 
L.  Ina.  Co.  i:  770,  75  N.  E.  803,  218  111.  40. 

64.  Charges  for  the  admiuistration  of  an 
estate  which  are  demanded  of  the  adminis- 
trator by  an  officer  acting  under  an  uncon- 
stitutional law,  and  whicu  are  paid  by  the 
administrator  under  written  protest  and 
under  circumstances  where  injury  to  the 
estate  and  the  third  parties  would  have 
resulted  from  a  refusal  to  pay,  and  a  re- 
sort to  legal  remedies  to  compel  the  per- 
formance of  the  ollicial  duty,  are  paid 
under  compulsion  and  duress,  and  can  be  re- 
covered from  the  county  upon  a  proper 
showing  being  made.  Aialiii  v.  LaiVloure, 
50:  997,  145  x>.  W.  582,  27  N.  D.  140, 

3.  Public  money. 

(See  also    same   heading   in  Digest   L.R.A. 
I-IO.J 

65.  A  municipal  corporation  which  has 
paid  over  money  which  it  appropriated,  in 
violation  of  a  constitutional  prohibition,  to 
induce  a  railroad  company  to  build  its  road 
to  the  town  and  establish  a  depot  there,  may 
maintain  an  action  to  recover  it  back,  even 
after  the  conditions  of  the  appropriation 
have  been  complied  with.  J^uxora  v.  Jones- 
boro,  L.  C.  &  E.  R.  Co.  13:  157,  103  S.  W. 
605,   83   Ark.   275.  (Annotated) 


ASSUMPTION  OF  DEBT. 

Oral  contract  as  to,  see  CoNTBAcrrs,  I.  e,  2. 
Construction    of    agreement    for,    see    Con- 
tracts, 371-373. 
As  consideration  for  conveyance,  see  MoBT- 

GAGE,    III. 


'  ASSUMPTION   OF   RISK. 

IjBy    spectators    at    game    of    baseball,    see 
Amusements,  9. 
By  person  taking  passage  on  logging  train, 

see  Carriers,  77. 
By    volunteer    taking    passage    on    freight 

train,  see  Carkieks,  79. 
By  shipper  of  animals,   see   Carriers,   892. 
By  passenger,  see  Carriers,  II.  g,  2. 
By  passenger  on  freight  elevator,  see  Eleva- 
tors, 15. 
By  teamster  using  sidewalk  as  driveway,  see 

Highways,  351. 
By  guest  of  hotel,  see  Innkeepers,  31. 
By  insured,  see  Insurance,  VI.  b. 
By  employee  of  tenant,  see  Landlord  and 
^   "     Tenant,  177. 
i  (\fiy  person  hiring  horse  from  liveryman,  see 
jj         LiivERY  Stables,  4. 

ij^j  servant  generally,  see  Master  and  Sebv- 
„,;        ant,  II.  b. 

j^By  workman  sent  by  master  to  repair  chim- 
^f[        ney  on   another's  property,   see   Negli- 
gence, 94. 
Digest   1-52  I..R.A.(N.S.) 


By  visitor  to  manufactory,  see  Negligence, 

103. 
By  child,  see  Negligence,  215. 
By  person  crossing  between  freight  cars  on 

switch,  see  Railroads,  74. 
By  person  crossing  track  in  front  of  street 

car,  see  Street  Railways,  84,  85. 
Necessity   of   pleading,   see   Pleading,   468, 

469.  ^ 

As  question  for  jury,  see  Trial,  II.  c,  8.       ' 

1.  Notice  or  knowledge  and  apprecia- 
tion of  the  danger  are  indispensable  to  an 
assumption  of  the  risk  of  it.  Winona  v. 
Botzet,  23:  204,  169  Fed.  321,  94  C.  C.  A. 
563. 


ASTROLOGY. 


Forbidding  casting  and  reading  of  horo- 
scope,  see   Constitutional   Laav,    762. 

Power  of  legislature  to  prohibit  fortune  tell- 
ing by,  see  Fortune  Telling. 

Validity  of  ordinance  as  to,  see  MUNICIPAL 
Corporations,  214. 


ATHLETIC    ASSOCIATION. 

Liability  for  injury  from  fall  of  stand 
used  at  athletic  exhibitions,  see  Exhi- 
bitions. 


ATTACHMENT. 


I.  When  lies,   1—17. 

a.  In  general,    1—4.  'ill 

&.  On  vuhat  claims,   5—S. 

c.  By  or  against  nonresidents  or 

foreign   corporations,    9—13. 

d.  For  fraud,  14—17. 

II.  Interest    acquired;    lien;    priority, 
18-22. 

a.  In  general,  18. 

6.  Lien,  priority,   19—22. 
III.  Procedure,   23—48. 

a.  In    general;     affidavits;    peti- 
tion; judgment,  23—31. 

h.  Bonds;  liability  on,  32—37. 

c.  IHssolxition ;  dismissal;  setting 
aside,   38—48. 

Abuse  of  process  in  bringing  attachment 
suit,  see  Abuse  of  Process,  4,  6. 

Effect  of  appearance  of  nonresident  on 
rights  of  plaintiff  in  attachment,  see 
Appearance,  1. 

Of  property  of  individual  partner  where 
other  member  has  been  adjudged  a 
bankrupt,  see  Bankruptcy,  25. 

Malicious  attachment,  see  Bankruptcy,  47, 
96;  Damages,  340;  Evidence,  2005: 
Malicious  Prosecution,  26. 

Effect  of  bankruptcy  on  prior  attachment, 
see  Bankruptcy,  55. 

Of  trust  fund  in  bank  for  debt  of  trustee, 
see  Banks,  66,  67.. 


196 


AT'1A(JHME^•T,  1.  u. 


Liability   of   bond   of   constable   fur    failure  | 
to  return   to  defendant  money   paid   to 
secure  release  of  goods,  see  Bonus,  G8.  : 

Defense  to  note  given  to  secure  release  of, 
see  Bills  a.nu  2\'orE8,  217.  , 

Of  mortgaged  chattels,  see  Cuaitkl  Mour-  , 
GAGE,  37,  3b,  47,  48,  53-57,  03. 

Waiver  of  lien  of  .chattel  mortgage  by  levy- 
ing attachment  on  property,  see  Chat-  | 

TEL   MOUTGAOE,   53-57.  i 

Levy  of,   as  cloud  on   title,  see  Cloud  ox  | 
Title,  13, 

Giving  note  to  secure  release  of,  as  a  com- 
promise and  settlement,  see  Compbo- 
MisE  AND  Settlement,  5. 

Punishing  contempt  of  court  by,  see  Con- 
tempt, 100. 

Oral  agreement  to  pay  debt  of  anotlier  to 
prevent  attachment  of  his  property,  see 
Contracts,  226. 

Validity  of  unregistered  pledge  of  stock  as 
against  subsequent  attachment,  see  CoB- 
pobations,  234-237. 

from  state  court  during  bankruptcy  pro- 
ceedings, see  Courts,  273. 

What  court  may  determine  validity  of  levy, 
see  Courts,  274. 

Effect  of  removing  suit  to  Federal  court, 
see  CouBTS,  277. 

Authority  of  receiver  appointed  by  other 
court  to  interfere  with,  see  CouBTS, 
291. 

Hight  to  attach  property  before  commenc- 
ing creditor's  suit,  see  Cbeditobs'  Bill, 
6. 

As  condition  of  right  to  maintain  creditors' 
bill,  see  Cbeditobs'  Bill,  7. 

Duty  to  minimize  damages  for  wrongful  at- 
tachment, see  Damages,  26. 

Exemplary  damages  for  wrongfully  suing 
out,  see  Damages,  56-58. 

Damages  for  malicious  attachment,  see  Dam- 
ages, 340,  * 
'Issuing  of,  to  enforce  obedience  to  subpoena 
duces    tecum,    see    Discoveby   and   In- 
spection, 8. 

Oral  motion  to  dismiss;  time  for,  see  Dis- 
missal or  Discontinuance,  1. 

Of  exempt  property  subject  to  payment  of 
particular  debt,  see  Election  of  Reme- 
dies, 3. 

Levy  of,  on  land  equitably  converted,  see 
Equitable  Convebsion,  3. 

Effect   of    attaching    property    on    right    to 
\ii\ii\  foreclose  chattel  mortgage  thereon,  see 
Estoppel,  201. 

Estoppel  of  payee  of  check  who  has  com- 
menced suit  against  drawer,  to  inter- 
vene in  action  by  other  creditor  of 
drawer,  see  Estoppel,  218. 

Attaching  creditor  as  bound  by  estoppel  up- 
on debtor,  see  Estoppel,  257. 

Judicial  notice  of,  see  Evidence,  11. 

Order  of,  as  process,  see  Exemptions,  2, 

Property  exempt  from,  see  Exemptions; 
Homestead. 

As  to  garnishment,  see  Gabnishment. 

Injunction  against  attachment  suit,  see  In- 
junction, 261. 

Levy  of,  as  effecting  change  of  interest  or 
title  to  insured  property,  see  Insub- 
ANCE,  228. 

Dieest  1-52  I<.R.A.(N.S.) 


Conclusiveness   of   judgment  in  attachment 

suit,  see  Jlugment,  262, 
Sale  under,  see  Judicial  Sale. 
Right  to  jury  trial  in,  see  Jury,  38. 
What   property    subject   to,    see    Levy    and 

Seizukk,  1. 
Mode  and  sufficiency  of  levy  and  return,  see 

Levy  and  Seizure,  U. 
When  action  is  commenced,  see  Limitation 

of  Actions,  280. 
Obstructing    execution   of    process,    see   Os- 

.sTKucTiNG  Justice,  3. 
Complaint   in   action   on  note  purchased  at 

attachment  sale,  see  Pleading,  170. 
Of  trust  property;   trustee's  attempt  to  de- 
feat, see  Pleading,  528. 
Of  property  after   appointment   of  receiver 

therefor,  see  Receivers,  29,  48.* 
Replevin    against    attaching    creditors,    see 

Replevin,  4,  17,  34. 
Sufficiency  of   delivery   of   chattels   sold   as 

against  attachment,  see  Sale,  13,  34. 
Effect  of  seller's  delay  in  asserting  right  to 

retake    property    as    against    attaching 

creditor,  see  Sale,  187. 
Subrogation  of  surety   on   bond  for   release 

from,  see  Subrogation,  25. 
Duty  of  court  in  possession  of  fund  in  at- 
tachment to  pay  taxes,  see  Taxes,  258. 
Against  spendthrift  trust,  see  Trusts,  130. 
Of   right  of   man   to  elect  to   take   against 

will  of  his  wife,  see  Wills,  350. 
Service    on    nonresident    before    attaching 

property,  see  Writ  and  Process,  53. 

/.  When  lies. 

a.   In  general. 

{See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Attachment  of  property  covered  by  bill  of 
lading,  draft  attached  to  which  has 
been  discounted  by  bank,  see  Bills  of 
Lading,  2. 

What  property  subject  to,  see  Levy  and 
Seizure,  I.  , 

1.  A  purchaser  of  goods  sold  and  de- 
livered upon  condition  that  the  title  shall 
not  pass  unless  the  price  agreed  upon  he 
paid  has  no  attachable  interest  in  the  prop- 
erty until  the  performance  of  the  condition. 
Mclver  v.  Williamson-Halsell-Frazier  Co. 
13:  696,   92   Pac.    170,    19   Okla.   454. 

f  Annotated) 

2.  Duly  deposited  funds  of  a  bankrupt's 
estate  are  in  the  possession  of  the  court  so 
as  to  prevent  attachment,  even  after  dis- 
tribution is  ordered  and  the  checks  have 
been  drawn  and  countersigned  but  not  de- 
livered, the  custody  of  the  law  continuing 
until  the  trustee  in  bankruptcy  actually 
pays  the  distributees  the  dividends  awarded 
them.  Rockland  Sav.  Bank  v.  Alden,  14: 
1220,  68  All.  863,  103  Me.  230.     (Annotated) 

3.  Under  a  statutory  provision  that 
rent  due  farming  land  shall  be  a  lien  on 
the  crops  growing  thereon,  enforceable  by 
attachment,  and  providing  further  that 
when  a  person  liable  to  pay  rent  intends 


ArrACHMENT,  I.   b— d. 


197 


to  remove,  or  is  removing,  or  lias  within 
thirty  days  removed,  his  property  or  crops 
from  the  leased  premises,  the  person  to 
whom  the  rent  is  due  may  commence  an 
action  in  attachment,  the  intent  of  a  ten- 
ant from  year  to  year  is  immaterial,  as 
affecting  the  right  of  the  landlord  to  at- 
tachment, where  such  tenant  is  engaged  in 
gathering  and  removing  the  crops,  and 
has  removed  part  of  the  same,  from  the 
farm  at  the  time  of  the  attachment.  Tur- 
ner V.  Wilcox,  40:  498,  121  Pac.  658,  32  Okla. 
56. 

4.  Under  a  statute  giving  the  right  of 
attachment  to  a  landlord  to  enforce  a  lien 
for  rent,  whether  the  same  be  due  or  not, 
providing  it  becomes  due  within  one  year, 
when  the  person  liable  intends  to  remove 
or  is  removing  his  property  or  crops,  a 
landlord  who  has  received  no  rent  from  a 
tenant  holding  from  year  to  year  is  entitled 
to  an  attachment  against  the  crops  raised 
on  the  farm  in  the  fall  of  the  year,  when 
the  tenant  is  engaged  in  removing  such 
crops  and  has  removed  part  of  the  same. 
Turner  v.  Wilcox,  40:  498,  121  Pac.  658,  32 
Okla.  56. 

&.  On  tvhat  claitns. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

5.  A  contract  to  hire  a  livery  rig  for  a 
certain  number  of  days  is  not  within  the 
purview  of  a  statute  allowing  an  attach- 
ment when  the  debt  is  for  an  article  the 
price  of  which  should  have  been  paid  at 
the  time  of  delivery,  which  the  debtor  re- 
fuses to  do.  Kilpatrick  v.  Inman,  26:  188, 
105  Pac.  1080,  46  Colo.  514. 

6.  One  Avho  obtains  another's  property 
by  larceny  is  his  debtor,  within  the  mean- 
ing of-  a  statute  giving  one  to  whom  another 
is  indebted  a  right  to  attachment  if  he  is 
attempting  to  conceal  or  dispose  of  his 
property  with  intent  to  defraud  his  credit- 
ors, and  the  debt  was  fraudulently  con- 
tracted. Downs  V.  Baltimore,  41:  255,  76 
Atl.  861,  111   Md.  674. 

7.  A  civil  action  to  compel  one  accused 
of  larceny  to  restore  the  value  of  the  thing 
taken  may  be  instituted  against  him  after 
the  institution  of  a  criminal  proceeding, 
which  may  be  aided  by  attachment  if 
grounds  therefor  exist.  Downs  v.  Balti- 
more, 41:  255,  76  Atl.  80 1.  Ill  Md.  674. 

(Annotated) 

8.  No  contract  to  pay  for  animals 
negligently  driven  in  the  way  of  a  railroad 
train  and  killed  can  be  implied  so  as  to 
bring  a  demand  for  compensation  within  a 
statute  allowing  attachments  in  case  of 
breach  of  contract,  express  or  implied. 
Kyle  V.  Chester,  37:  230,  113  Pac.  749,  42 
Mont.  622. 

c.  By  or  against  nonresidents  or  foreign 
corporations. 

(See  also   same   heading   in   Digest   L.R.A. 

1-10.) 
Digest  1-52  L.R.A.(N.S.) 


Against  nonresidents  generally. 

9.  A"  nonresident  who,  as  an  enlisted 
soldier  of  the  United  States,  is  stationed 
upon  a  tract  of  land  which  has  been  se- 
cured by  the  Federal  government  within  a 
state  for  military  purposes,  does  not  be- 
come a  citizen  of  such  state,  so  as  to  de- 
feat the  right  of  a  creditor  to  issue  an  at- 
tachment against  him  as  a  nonresident,  al- 
though state  process  may  be  served  within 
the  reservation.  Bank  of  Phoebus  v.  By- 
rum,  27:  436,  67  S.  E.  349,  110  Va.  708. 

10.  Jurisdiction  over  a  debtor  upon 
whom  the  service  of  summons  and  com- 
plaint is  by  publication  may  be  secured  by 
levying  an  attachment  upon  his  equity  in 
corporate  stock  which  he  has  pledged  as 
security  for  a  debt,  so  far  as  is  necessary 
to  uphold  a  sale  of  such  stock  under  execu- 
tion. (State  Banking  &  T.  Co.  v.  Taylor, 
29:  523,   127  N.  W.  590,  25  S.  D.  577. 

11.  An  'attachment  against  the  individu- 
al property  of  a  resident  member  of  a 
partnership  cannot  be  sustained  in  an  ac- 
tion against  the  partnership  on  the  theory 
that  the  other  member  was  a  nonresident, 
under  a  statute  authorizing  attachment  in 
case  of  nonresidence.  Johnson  v.  Jones, 
48:  547,  135  Pac.  12,  39  Okla.  323, 
Against  foreign  corporation. 
Attachment  of  registered  bonds  of  foreign 

corporation,  see  Levy  and  Seizure,  9. 
Attachment  of  foreign  railway  cars,  see  Ac- 
tion OB  Suit,  42;   Commebce,  21-24; 
Levy  and  Seizure,  15,  16. 

12.  Attachment  against  the  property  of 
a  foreign  corporation  as  that  of  a.  non- 
resident will  not  lie  where  it  is  doing  busi- 
ness within  the  state,  and  has  complied 
with  the  terms  of  a  statute  which  provides 
that  upon  such  compliance  it  shall  be  to 
all  intents  and  purposes  a  domestic  cor- 
poration. Stonega  Coke  &  Coal  Co.  v. 
Southern  Steel  Co.  31 :  278,  131  S.  W.  988. 
123   Tenn.    428.  (Annotated) 

13.  The  legislature  may  provide  for  the 
domestication  of  foreign  corporations  seek- 
ing to  do  business  within  the  state,  so 
that  their  property  shall  no  longer  be  at- 
tachable as  that  of  nonresidents.  Stonega 
Coke  &  Coal  Co.  v.  Southern  Steel  Co.  31 : 
278,  131  S.  W.  988,  123  Tenn.  428. 

d.  For  fraud. 

(See   also   same   heading   i/n   Digest  L.R.A. 
1-10.) 

14.  The  direction  of  a  debtor  in  a  for- 
eign state  to  his  domestic  agent  to  pay  the 
principal's  funds  in  his  hands  to  an  as- 
signee of  the  principal  in  another  state  is  an 
attempted  removal  of  property  from  the 
state  within  the  meaning  of  the  attachment 
laws.  Dillingham  v.  Traders'  Ins.  Co.  16: 
220,   108   S.   W.   1148,   120  Tenn.   302. 

15.  The  direction  of  a  debtor  to  his  agent 
within  the  state  to  pay  funds  in  his  hand.s 
to  the  principal's  receiver  in  another  state 
to  which  the  right  thereto  had  been  as- 
signed, and  not  the  act  of  the  receiver,  ef- 
fects  the    removal    of   the    funds    from    the 


198 


ATa'ACHMENT,  11.  a— 111.  a. 


state,  so  as  to  bring  the  property  within 
the  operation  of  the  attachment  laws  in  a 
suit  against  the  principal.  Dillingham  v. 
Traders'  Ins.  Co.  i6:  220,  108  S.  \V.  1148,  120 
Tenn.  302. 

16.  Failure  to  take  according  to  contract 
a  livery  rig  which  had  been  engaged  for  a 
few  days  will  not  support  an  attachment 
on  the  theory  of  fraud,  since  it  is  a  mere 
breach  of  contract.  Kilpatrick  v.  Inman, 
26:  188,  105  Pac.  1080,  46  Colo.  514. 

17.  A  debt  incurred  by  obtaining  goods 
from  a  wholesaler  upon  credit  given  in  re- 
liance upon  financial  statements  of  the 
debtor,  which  purported  to  disclose  all  his 
indebtedness,  but  which  in  fact  omitted  a 
loan  substantially  equal  to  his  original  in- 
vestment in  the  retail  business,  for  which 
the  goods  were  intended,  is  fraudulently 
contracted  within  the  meaning  of  a  statute 
authorizing  the  attachment  of  the  defend- 
ant's land  in  a  creditors'  suit.-  Western 
Grocer  Co.  v.  Alleman,  27:  620,  106  Pac.  460, 
81  Kan.  643. 

II.  Interest  acquired ;  lien;  priority. 

,^„,,  a.  In  general. 

(See  also  same  heading  in  Digest  L.B.A. 
1-10.) 

18.  An  attaching  creditor  may  acquire 
greater  and  better  rights  to  mortgaged  per- 
sonal property  belonging  to  his  debtor  than 
the  debtor  himself  could  claim  at  the  time 
the  attachment  is  levied.  Holt  v.  Lucas, 
17:  2oi,  96  Pac.  30,  77  Kan.  710. 

h.  Lien;  priority. 

(See  also  sa^tne  heading  in  Digest  L.R.A. 
1-10.) 

Right  of  one  purchasing  property  as  against 
one  attaching  it  as  that  of  vendor,  see 
Fbaudulent  Conveyances,  46. 

Lien  of,  on  funds  of  estate  in  administra- 
tor's hands,  see  Money  in  Coubt,  3. 

Rights  as  between  attaching  creditor  of  re- 
puted grantee  and  holder  of  prior  un- 
recorded deed,  see  Vendor  and  Pub- 
CHASEB,  90. 

Priority  bet'treen  attachment  and 
ether  liens. 

Priority  of  chattel  mortgage  over,  see  Chat- 
tel MOBl-QAGE,   37,   38. 
See  also  supra,  18. 

19.  One  attaching  stock  which  is  placed 
in  the  name  of  a  person  on  the  books  of 
the  corporation  to  qualify  him  to  act  as  a 
director,  for  the  debt  of  the  latter,  cannot 
contest  the  title  of  the  true  owner  to  the 
stock,  because  the  statute  requires  directors 
to  be  bona  fide  stockholders,  and  the  owner 
of  the  stock  has  aided  in  a  violation  of  the 
statute.  Gray  v.  Graham,  49:  1159,  89  Atl. 
262,  87  Conn.  601. 

20.  One  who  places  corporate  stock  in 
the  name  of  another  on  the  books  of  the 
Digest  1-52  L.R.A.(N.S.) 


corporation  to  qualify  him  as  a  director,  re- 
taining pos.iession  of  the  certificate  him- 
self, has  priority  over  an  attaching  cn-ditor 
of  the  latter  who  did  not  extend  credit  on 
the  faith  of  the  stock.  Gray  v.  Graiiam, 
49:  1159,  89  Atl.  262,  87  Conn.  601. 

( Annotated ) 

21.  A  junior  attachment  levied  on  the 
property  embraced  in  a  conditional-sale  con- 
tract illegally  recorded  because  the  attesta- 
tion of  such  instrument  was  taken  before 
a  notary  public  who  was  a  stockholder  in 
the  vendor  corporation  is  entitled  to  priori- 
ty over  the  lien  of  the  conditional-sale  con- 
tract, although  founded  on  a  debt  antece- 
dent to  the  conditional  bill  of  sale.  South- 
ern Iron  &  E.  Co.  v.  Voyles,  41:  375,  75  S. 
E.  248,   138   Ga.  258. 

22.  A  conditional  bill  of  sale  attested  by 
a  notary  public  who  is  a  stockholder  in  the 
vendor  corporation,  which  is  thereafter  re- 
corded as  required  by  Statute  to  perfect  the 
lien  of  such  contract,  is  not,  by  virtue  of 
such  record,  entitled  to  a  priority  over  a 
subsequently  acquired  attachment  lien, 
where  the  disqualification  of  the  notary 
was  known  to  the  official  of  the  corpora- 
tion conducting  the  transaction,  although 
such  disqualification  may  not  appear  on  the 
face  of  the  paper.  Southern  Iron  &  E.  Co. 
v.  Voyles,  41=375,  75  S.  E.  248,  138  Ga. 
258. 

///.  Procedure. 

a.  In  general;  affidavits;  petition; 
judgment. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Presenting  for  first  time  on  appeal  petition 
to  amend  insufficient  affidavit  for  at- 
tachment, see  Appeal  and  Erbok,  6'.)3. 

Special  appearance  to  move  to  quash  writ 
of,  see  Appearance,  20. 

Sufficiency  of  petition  in  creditor's  action 
to  enforce  attachment  lien,  see  Plead- 
ing, 423. 

Sufficiency  of  service  of  process,  see  Writ 
and  Process,  3,  54,  55, 

23.  A  freight  car  is  within  the  provisions 
of  a  statute  permitting  the  execution  of  an 
attachment  on  any  property  "incapable  of 
manual  delivery  to  the  sheriff,"  by  leaving 
with  the  individual  holding  the  property 
a  certified  copy  of  the  warrant  with  a 
notice  showing  the  property  levied  upon. 
Seibels  v.  Northern  C.  R.  Co.  16:  1026,  61 
S.   E.   435,   80   S.   C.    133. 

24.  An  attachment  of  registered  bonds 
of  a  foreign  corporation  is  not  defeated  by 
failure  to  comply  with  provisions  of  a  stat- 
ute prescribing  the  method  of  attaching 
stock  of  domestic  corporations.  De  Beam  v. 
De  Beam,  36:  421,  81  Atl.  223,  115  Md.  668, 

25.  An  attachment  based  upon  an  affida- 
vit made  by  the  plaintiff's  attorney  is  suf- 
ficient if  the  facts  are  positively  stated  in 
the  language  of  the  statute;  it  being  unnec- 
essary that  the  affidavit  should  disclose,  in 

(.i?.v[).A.H.j:  Sfi-i  t«9a»a 


ATTACHMENT,   III.   b. 


199 


addition  thereto,  that  the  affiant  possessed 
personal  knowledge  of  such  facts.  F..  Mayer 
Boot  &  Shoe  Co.  v.  Ferguson,  14:  1126,  114 
N.  W.  1091,  17  N.  D.  ]02.  (Annotated) 

26.  A  statutory  provision  allowing  serv- 
ice of  process  upon  the  president,  treasurer, 
or  other  chief  officer  of  a  corporation  is  not 
sufficient  to  show  that  the  treasurer  is  the 
agent  of  the  corporation  for  the  purpose  of 
executing  an  affidavit  for  attachment  on  its 
behalf.  Taylor  v.  Sutherlin-Meade  Tobacco 
Co.  14:  1135,  60  S.  E.  132,  107  Va.  787. 

27.  The  words  "secretary  and  treasurer," 
appended  to  the  signature  of  an  affidavit  for 
attachment  sued  out  on  behalf  of  a  corpora- 
tion, are  not  sufficient,  as  matter  of  law,  to 
show  that  the  affidavit  was  within  the  re- 
quirements of  a  statute  that  it  must  be  exe- 
cuted by  plaintiflf,  his  agent  or  attorney. 
Taylor  v.  Sutherlin-Meade  Tobacco  Co.  14: 
1135,  60   S.  E.   132,   107   Va.   787. 

(Annotated) 

Intervention. 

What  questions  may  be  raised  by  person  in- 
tervening in  attachment  proceedings, 
see  Intervention. 

Right  of  Receiver  to  intervene  in  attach- 
ment proceeding,  see  Receivers,  48. 

28.  The  owner  or  claimant  of  property 
attached  as  that  of  another  in  an  action 
for  debt  has  such  an  interest  as  against 
both  parties  to  the  main  action  as  entitles 
him  to  intervene,  irrespective  of  other  and 
adequate  remedies,  for  the  purpose  of  as- 
serting his  right  and  title  to  the  attached 
property,  under  a  statute  authorizing  the 
intervention  of  third  parties  who  have  an 
interest  in  the  matter  in  litigation,  in  the 
success  of  either  of  the  parties,  or  an  in- 
terest against  both.  Potiatch  Lumber  Co. 
v.  Runkel,  23:  536,  101  Pac.  396,  16  Idaho, 
192.  (Annotated) 

29.  A  third  person  who  intervenes  in  an 
action  for  debt,  on  the  ground  that  his 
property  has  been  attached  as  that  of  the 
debtor  in  the  main  action,  does  not  thereby 
raise  an  additional  issue,  where  the  attach- 
ment statute  provides  that  an  attachment 
duly  and  r^ularly  issued  becomes  a  lien 
on  the  property  'as  security  for  the  satis- 
faction of  any  judgment  that  may  be  re- 
covered," as  in  such  case  the  attachment  is 
a  provisional  remedy  which  reaches  out  and 
lays  hold  upon  the  property  by  proceeding 
in  rem,  and  subjects  it  to  the  payment  of  the 
debt  for  the  recovery  of  which  the  action  was 
brought,  and  therefore  the  intervention 
simply  raises  the  issue  as  to  the  ownership 
of  the  propert)'.  Potiatch  Lumber  Co.  v. 
Runkel,  23:  536,  101  Pac.  396,  16  Idaho,  192. 
Judgment. 

30.  A  court  securing  jurisdiction  of  a 
nonresident  by  attachment  of  his  property 
and  substituted  service  of  process  has  no 
jurisdiction  to  render  a  personal  judgment 
for  the  amount  of  the  claim  over  and  above 
the  value  of  the  property  attached.  Joseph 
Joseph  &  Bros.  Co.  v.  HolTman  &  McNeill, 
38:  924,  56  So.  210,   173  Ala.  568. 

31.  Upon  attachment  of  bonds  of  a  non- 
resident corporation  in  the  hands  of  cus- 
todians, to  reach  the  debt  of  a  nonresi- 
Digest   1-52  L.R.A.(N.S.) 


denf  owner  of  the  bonds,  which  are  reg- 
istered in  the  name  of  his  children,  the 
judgment  must  be  one  of  condemnation 
against  the  specific  bonds,  and  not  in  per- 
sonam against  the  custodians.  De  Boarn  v. 
De  Beam,  36:  421,  81  Atl.  223,  115  Md.  668. 

b.  Bonds;  liability  on. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.J 

Effect  of  discharge  in  bankruptcy  on  bond 
executed  to  release  attached  property 
of   bankrupt,   see  Bankruptcy,    140. 

Punitive  damages  for  breach  of  attachment 
bond,  see  Damages,  30. 

Estoppel  of  wife  of  surety  on  bond  to  as- 
sert title  to  property  standing  in  his 
name,  see  Estoppel,  65.  ^ 

Release  of  surety  on  attachment  bond,  sec 
Principal  and  Surety,  32. 

Bond  for  release  of  attached  property,  see 
Levy  and  Seizure,  IV. 

See  also  infra,  40. 

32.  The  relation  of  debtor  and  creditor 
between  an  attachment  creditor  and  a 
surety  for  the  return  of  the  attached  prop- 
erty arises  at  the  moment  the  contract  of 
suretyship  is  entered  into,  for  the  purpose 
of  determining  the  rights  of  the  attachment 
creditor  in  property  standing  in  the, 
surety's  name,  and  in  reliance  upon  which 
he  is  accepted  as  surety,  as  against  the  real 
owner  thereof,  to  whom  the  surety  subse- 
quently transfers  it.  Goldberg  v.  Parker, 
46:  1097,  87  Atl.  555,  87  Conn.  99. 

33.  An  obligor  on  a  statutory  bond  to 
discharge  an  attachment,  conditioned  that 
the  defendant  will  perform  the  judgment 
of  the  court  in  the  action  in  which  the 
attachment  is  issued,  is  absolutely  liable  in 
an  action  against  him  on  the  bond  for  the 
amount  recovered  in  the  action  in  which  the 
bond  was ,  given,  without  reference  to  the 
question  whether  the  attachment  was  right- 
fully or  wrongfully  issued,  and  the  defend- 
ant is  precluded  by  such  bond  from  con- 
troverting the  grounds  of  the  attachment. 
Moffit  v.  Garrett,  32:  401,  100  Pac.  533, 
23    Okla.    398.  (Annotated) 

34.  The  mere  levying  of  an  attachment 
or  garnishment  is  not  sufficient  to  show  in- 
jury so  as  to  raise  a  liability  on  the  bond 
in  case  the  levy  proves  to  have  been  wrong- 
ful. Ames  v.  Chirurg,  38:  120,  132  N.  W. 
427,  152  Iowa,  278. 

35.  Attorneys'  fees  for  defending  the 
main  suit  cannot  be  recovered  in  a  suit 
upon  an  attachment  bond,  in  the  absence  of 
peculiar  circumstances  requiring  it  in  a 
pai-ticular  case.  Ames  v.  Chirurg,  38:  120, 
132  N.  W.  427,  152  Iowa,  278. 

36.  The  fact  that  no  indebtedness  is  in 
fact  due  at  the  time  an  attachment  is  sued 
out  in  a  suit  to  recover  a  pretended  in- 
debtedness does  not  show  that  the  attach- 
ment was  wrongful  so  as  to  support  an  ac- 
tion on  the  bond,  where  the  statute  requires, 
as  a  basis  for  such  action,  not  only  that  the 
attachment   was    wrongful,   but   that    there 


200 


ATTACHMENT,  III.  e. 


was  no  reasonable  cause  to  believe  the 
ground  upon  which  the  same  was  issued  to 
be  true.  Ames  v.  Chirurg,  38:  120,  132  X. 
W.  427,  152  Iowa,  278.  (Annotated) 

37.  Under  a  statute  providing  bail  abso- 
lute to  discharge  a  foreign  attachment  con- 
ditioned to  pay  the  debt  or  damages,  the 
liability  of  the  sureties  depends  upon  the 
sum  demanded  in  the  cause  of  action  upon 
which  attachment  issued,  and  cannot  be  in- 
creased by  an  amendment  substituting  a 
different  measure  of  damages  after  the  bond 
is  filed.  Com,  use  of  Gettman  v.  A.  B. 
Baxter  &  Co,  42:  484,  84  Atl.  136,  235  Pa, 
179,  (Annotated) 

c.  Dissolution;  dismissal;  setting  aside. 

(See  also  same   heading  in  Digest  L.R.A. 

Conclusiveness  of  judgment  dissolving,  see 

JUDOMENT,  162. 

Bond  for  release  of  attached  property,  see 
Levy  and  Seizure,  IV, 

38.  An  equitable  conversion  effected  by 
an  election  to  exercise  an  option  to  buy  real 
estate  will  not  relate  back  to  the  date  of 
the  contract,  so  as  to  dissolve  an  attachment 
levied  on  the  land  as  that  of  the  grantor 
prior  to  the  election,  and  while  the  grantor 
retains  the  ownership.  Sheehy  v.  Scott, 
4:  365,  104  N.  W.  1139,  128  Iowa,  551. 

39.  Refusal  to  vacate  a  warrant  of  at- 
tachment is  proper,  where  it  is  in  all  re- 
spects regular,  and  the  only  issue  is  as  to 
whether  or  not  the  property  seized  is  sub- 
ject thereto.  Brenizer  v.  Supreme  Council 
of  the  Royal  Arcanum,  6:  235,  53  S.  E.  835, 
141  N.  C.  409. 

40.  In  a  suit  against  a  foreign  corpora- 
tion, in  which  its  property  has  been  attached 
and  afterwards  released  by  the  giving  of  a 
bond,  pursuant  to  statutory  provisions, 
where  the  defendant  appears  and  makes  de- 
fense, and  a  personal  decree  is  rendered 
against  it  for  an  amount  which  it  has 
previously  tendered  on  account  of  the  de- 
mand set  up  in  the  bill,  but  not  paid  into 
court,  it  is  error  to  dismiss  the  attachment 
and  decree  a  release  of  the  bond.  Dudley  v. 
Chicago,  M.  &  St.  P.  R.  Co.  3:  1135,  52  S.  E. 
718,  58  W.  Va.  604. 

41.  Although  an  attachment  may  be  dis- 
missed because  of  its  invalidity,  plaintiff  is 
entitled  to  proceed  for  a  verdict  and  general 
judgment  on  his  declaration,  if  the  defend- 
ant has  appeared  and  made  defense,  under 
Code  provisions  providing  that,  where  de- 
fendant has  appeared  and  made  defense, 
judgment  against  him  shall  bind  all  his 
property,  and  have  the  same  force  and 
effect  as  if  there  had  been  personal  service, 
and  that,  where  notice  in  writing  was  given 
to  defendant  of  the  pendency  of  attachment 
proceedings,  the  declai-ation  shall  not  be 
dismissed  because  the  attachment  may  have 
been  dismissed  or  discontinued,  but  the 
plaintiff  shall  be  entitled  to  judgment  on 
the  declaration  filed,  as  in  other  cases  at 
common  law,  upon  the  merits  of  the  case. 
Digest   1-52  i^.R.A.(N.S.) 


Cowart  V.   W.   E.  Caldwell  Co.  30:  720,  68- 
S.  E.  500,  134  Ga.  544. 
Grounds  for. 

42.  The  rule  that  an  attacliment  will  not 
be  dissolved  on  the  ground  that  defendant 
has  no  title  to  the  property  does  not  apply 
where  the  attachment  is  sued  out  to  acquire 
jurisdiction  over  a  nonresident.  Greenwood 
Grocery  Co.  v.  Canadian  County  Mill  & 
Elevator  Co,  2:  79,  52  S.  E.  191,  72  S.  C. 
450. 

43.  An  attacliment  sued  out  on  the 
ground  of  the  fraudulent  conveyance  or  dis- 
position of  the  debtor's  property  should  be 
dissolved,  v/here  a  sale  in  bulk  of  the  stock 
of  goods  levied  on  is  found  to  have  been 
made  in  good  faith  and  without  actual 
fraud,  as  such  finding  overthrows  the  pre- 
sumption of  fraud  created  by  Okla.  Sess. 
Laws  1903,  p.  249,  chap.  30,  §  1.  Williams 
v.  Fourth  Nat.  Bank,  2:  334,  82  Pac.  496, 
15  Okla.  477. 

44.  An  attachment  is  properly  dismissed 
when  the  only  levy  thereof  is  by  the  service 
of  a  summons  of  garnishment  which  is  void. 
Cowart  V.  W.  E.  Caldwell  Co.  30:  720,  68 
S.  E.  500,  134  Ga.  544. 

45.  A  motion  to  vacate  an  attachment 
for  misjoinder  of  parties  in  an  action  by  a 
husband  and  wife  is  properly  overruled 
where  by  statute  the  question  of  misjoinder 
can  be  raised  only  by  demurrer,  and  the 
husband  is  a  necessary  party  to  an  action 
brought  on  behalf  of  his  wife  of  the  class 
in  which  the  attachment  was  issued.  Sei- 
bels  V.  Northern  C.  R.  Co.  16:  1026,  61  S.  E. 
435,  80  S.  C.  133. 

46.  While  it  is  proper  to  entertain  a 
motion  for  the  immediate  discharge  of 
property  seized  in  attachment  proceedings 
as  that  of  defendant  when  it  is  claimed  by 
another  who  interpleads,  if  the  showing 
upon  the  motion  discloses  a  substantial 
question  as  to  the  ownership  between  de- 
fendant and  interpleader,  the  motion  should 
be  overruled  where  the  hearing  is  upon 
ex  parte  affidavits.  Western  Grocer  Co.  v. 
Alleman,  27:  620,  106  Pac.  460,  81  Kan.  543. 

47.  An  attachment  in  the  hands  of  per- 
sons in  whose  custody  they  have  been 
placed,  of  bonds  of  a  nonresident  corpora- 
tion registered  in  the  name  of  one  person, 
but  found  by  the  court  to  belong  to  an- 
other, who  is  a  nonresident,  to  reach  a 
debt  of  the  latter,  should  not  be  set  aside, 
if  the  bonds  are  subject  to  attachment,  be- 
cause neither  the  custodian  nor  anyone  be- 
fore the  court  could  transfer  them,  since 
equity  might,  by  proper  proceedings,  have 
them  transferred  in  such  a  way  as  to  make 
the  judgment  in  the  attachment  proceed- 
ings effective.  DeBearn  v.  DeBearn.  36: 
421,  81   Atl,  223,   115  Md.  668. 

48.  The  defendant  in  an  attachment 
proceeding  based  upon  the  ground  of  non- 
residence  cannot  be  heard  to  deny  his 
ownership  of  the  property  attached,  to  de- 
feat the  limited  jurisdiction  of  the  court, 
proceeding  quasi  in  rem  against  the  at- 
tached property.  Thornley  v.  Lawbaugh, 
47:  1127,  143  N.  W.  348,  —  N.  D,  — . 

(Aanotated) 


ATTEMPT— ATTORNEY  IN  FACT. 


201 


ATTEMPT. 

To  commit  crime,  see  Criminal  Law,  I.  c. 

Of  convict  to  escape,  see  Criminal  Law, 
237;  Evidence,  2423. 

To  agree  'as  prerequisite  to  condemnation 
proceedings,  see  Eminent  Domain,  123, 
124. 

To  discharge  revolver,  see  Evidence,  2398. 

To  commit  suicide,  see  Suicide,  2. 

Sufficiency  of  proof  of,  see  Evidence,  2392, 
2398,  2423. 

Evidence  admissible  on  prosecution  for  as- 
sault with  attempt  to  commit  sodomy, 
see  Evidence,  1911. 


ATTENDANCE. 

At  school,  see  Schools,  I.  b. 


ATTESTATION. 


Of  writ  of  error,  see  Appeal  and  Erbob, 

119-121. 
Of  deed,  see  Deeds,  4;    Estoppel,  252. 
Of  will,  see  Wills,  I.  b. 


ATTESTATION    CLAUSE. 

See  Wills,  38. 


ATTESTING  ^VITNESSES. 

See  Subscribing  Witnesses. 


ATTORNEY  GENERAL, 

Jurisdiction  of  action  by,  see  CoUTtrs,  215. 

Right  of  govei'nor  to  require  attorney  gen- 
eral to  examine  witnesses,  see  Govebn- 
OB,  3. 

Power  of,  to  remove  municipal  officers,  see 
Officers,  60,  61. 

As  proper  party  defendant  in  suit  to  re- 
strain enforcement  of  statute,  see 
Parties,  167. 

As  necessary  party  to  action  to  enforce  a 
public  right,  see  Parties,  106. 

Quo  warranto,  see  Quo  Warranto,  6,  13. 

Injunction  to  restrain  enforcement  of  stat- 
ute by,  see  State,  21-23. 

1.  As  the  chief  law  officer  of  the  state, 
the  attorney  general  is  clothed  and  charged 
with  all  the  common-law  powers  and  duties 
pertaining  to  his  office,  except  as  limited 
by  statute.  State  v.  Ehrlick,  23:  691,  64 
S.  E.  935,  65  W.  Va.  700. 

2.  The  attorney  general  of  a  state  pos- 
sesses, in  addition  to  the  authority  express- 
ly conferred  upon  him  by  statute,  all  com- 
mon-law powers  incident  to  and  inherent  in 
the  office.  State  ex  rel.  Young  v.  Robinson. 
20:  1127,  112  N.  W.  269,  101  Minn.  277. 
Digest   1-52  L.R.A.(N.S.) 


3.  A  proceeding  for  the  examination  of 
witnesses  under  the  provisions  of  a  pro- 
hibitory liquor  law  (Gen.  Stat.  1909,  § 
4306)  is  a  matter  before  an  officer,  in  which  . 
the  state  is  interested;  and  when  required 
by  the  governor  the  attorney  general  has 
no  discretion  to  refuse  to  prosecute  in  such 
a  proceeding.  State  ex  rel.  Stubbs  v.  Daw- 
son, 39:  993,  119  Pac.  360,  86  Kan.  180. 
Right  to  bring  suit. 

As  proper  party  to  invoke  power  of  courts 
over  administration  of  charitable  trust, 
see  Charities,  60. 

Construction  of  statute  as  to  duty  of  at- 
torney general  to  prosecute  at  request 
of  governor,  see  Statutes,  257. 

See.  also  State,  10-12,  14. 

4.  In  the  absence  of  any  statutory  pro- 
vision to  the  contrary,  the  attorney  general 
has  the  management  and  control  of  civil 
litigation  on  behalf  of  the  state.  State  v. 
Ehrlick,  23:  691,  64  S.  E.  935,  65  W.  Va.  700. 

5.  The  attorney  general  of  a  state  has, 
in  the  absence  of  a  statute  forbidding  him 
to  do  so,  power  to  institute  proceedings  in 
the  name  of  the  commonwealth,  to  en.ioin 
the  commonwealth,  to  enjoin  the  mainte- 
nance of  a  public  nuisance.  Com.  ex  rel. 
Breathitt  v.  Respass,  21:  836,  115  S.  W. 
1131,  131  Ky.  807. 

6.  Statutory  authority  to  the  attorney 
general  to  prosecute  all  actions  in  the  su- 
preme court  in  which  the  state  shall  be  in- 
terested or  a  party,  and  to  appear  for  the 
state  in  any  circuit  court  whenever  request- 
ed by  the  governor  or  either  branch  of  the 
legislature  to  do  so,  does  not  empower  him, 
without  the  request  of  the  governor  or  leg- 
islature, to  institute  in  the  circuit  court  an 
action  to  annul  the  franchise  of  a  private 
corporation.  State  v.  Milwaukee  Electric 
R.  &  L.  Co.  18:  672,  116  N.  W.  900,  136  Wis. 
179.     .  ( Annotated ) 

7.  An  attorney  general  may,  on  behalf 
of  the  state,  maintain  gp  action  in  equity 
to  enjoin  common  carriers  whose  rates  are 
fixed  by  law,  from  violating  the  terms  of  a 
statute  and  exacting  unlawful  and  excessive 
rates.  State  v.  Pacific  Exp.  Co.  18:  664, 
115  N.  W.  619,  80  Neb.  823.  (Annotated) 

8.  The  attorney  general  may  properly 
appear  in  a  proceeding  to  test  the  right  of 
a  corporation  to  engage  in  the  practice  of 
the  law.  Re  Co-operative  Law  Co.  32:  55, 
92  N.  E.  15,  198  N.  Y.  479. 

9.  The  attorney  general  may  maintain  a 
suit  to  enjoin  a  municipal  corporation  from 
emptying  sewage  into  a  stream  in  such  a 
manner  as  to  constitute  a  public  nuisance. 
Bird  ex  rel.  Emmons  v.  Grand  Rapids,  50: 
473,  141  N.  W.  890,  175  Mich.  503. 


ATTORNEY  IN  FACT. 

Special  deposit  by,  see  Banks,  218. 
Execution  of  deeds  by  attorney  in  fact,  see 

Deeds,  6. 
Acknowledgment  of  deed  executed  by  attor- 

nev  in  fact,  see  Acknowledgment,  6. 


202 


ATTORNEYS. 


ATTORNEYS. 

/.  Right  to  practise;  control  of  court, 
1-31. 

a.  Acltnission,    1—4. 

b.  Disbarment  or  suspension,   5— 

29. 

c.  License. 

d.  Control  of  court  generally,  30, 

31. 
II.  Relation  to  client,  32—88. 

a.  In  general;  liability,  32—41. 

b.  Authority,   42—40. 

c.  Compensation ;  lien,  50—86. 

1.  In     general;     amount     of, 

30—63. 

2.  Lien  for;  rights  in  fund  or 

property,   64 — 86. 

d.  Stimmary  proceedings,  87,  88. 
III.  Rem.edies  against;  motions. 

Taking  by,  of  acknowledgment,  see  Ac- 
knowledgment, 1. 

As  friend  of  court,  see  Amicus  CuBiiE. 

Effect  of  executing  appeal  bond  in  names 
of,  see  Appeal  and  Ebrob,  147. 

Participation  of  special  attorney  in  prose- 
cution for  homicide,  see  Appei&l  and 
Error,  362. 

Relation  of  judge  to  attorney  in  the  case, 
see  Appeal  and  Error,  363;  Judges, 
10-^12. 

Contempt  of,  see  Appeal  and  Error,  1603; 
Constitutional  Law,  551;  Contempt, 
9,  10,  29,  30,  102. 

Argument  of,  see  Appeal  and  Error,  VII. 
m,  5;  New  Trial,  12,  13;  Trial,  I.  d. 

Review  of  discretion  in  limiting  time  al- 
lowed counsel  for  argument  to  jury,  see 
Appeal  and  Error,  640,  641. 

Appearance  by,  see  Appearance. 

Agreement  between  law  partners  one  of 
whom  is  prosecuting  attorney  to  divide 
salary  of  office,  see  Assignment,  9; 
Contracts,  4B7. 

Sufficiency  of  attachment  based  upon  affi- 
davit of,  see  Attachment,  25. 

As  to  attorney  general,  see  ATTOBNEnr  Gek; 
eral. 

Deposit  of  money  by,  in  bank  in  his  own 
name  as  "attorney,"  see  Banks,  65- 
67. 

Right  of  prosecutrix  in  bastardy  proceeding 
to  retain  private  counsel,  see  Bastardy, 
3. 

Appointment  of  special  attorney  to  prose- 
cute infringements  of  liquor  law,  see 
Constitutional  Law,  72. 

Validity  of  contract  with,  see  Contracts, 
465-471,  515,  516,  610. 

Duty  to  give  security  for  costs,  see  Costs 
AND  Fees,  10. 

Right  of  accused  to  consult  with  his  attor- 
ney, see  Criminal  Law,  78-81. 

Serving  notice  of  application  to  discontinue 
action  on  defendant  instead  of  an  attor- 
ney, see  Dismissal  or  Discontinu- 
ance) 8. 

Estoppel  of,  see  Estoppel,  242. 

Accounts  kept  by,  as  admissions  of  client 
against  interest,  see  Evidence,  799, 
800. 

Digest  1-52  I<.R.A.(N.S.) 


Proof  of  foreign  law  by  member  of  bar  of 
foreign  jurisdiction,  see  Evidence, 
1135. 

Evidence  as  to  attorney's  opinion  concern- 
ing title  to  personalty,  see*  Evidence, 
1205. 

Admissions  of,  as  evidence,  see  Evidence, 
1254,  1255. 

Confidential  communications  to,  see  Evi- 
dence, 1282,  1296-1306,  1338. 

Letters  by  wife's  attorney  to  husband  as 
confidential  communications,  see  Evi- 
dence, 1316. 

Advice  of  attorney  as  defense  in  action  for 
false  imprisonment,  see  False  Im- 
prisonment, 46,  47. 

Power  of  married  woman  to  employ,  see 
Husband  and  Wife,  37. 

Right  to  invade  insane  asylum  in  profes- 
sional capacity,  see  Incompetent  Per- 
sons, 20. 

Presence  of,  in  grand  jury  room,  see  Indiot- 
MENT,  etc.,  138,  140. 

Enjoining  suit  against  attorney  collecting 
judgment,  see  Injunction,  263. 

Right  of  attorney  to  whom  client  has  as- 
signed interest  in  action  to  attack  judg- 
ment because  of  perjured  testimony,  see 
Judgment,  141. 

Conclusiveness  of  judgment  as  to,  see  JtfDG- 
MENT,  226. 

Failure  of,  to  prepare  or  serve  answer  as 
ground  for  opening  judgment,  see  Judg- 
ment, 350,  352. 

Vacating  judgment  for  mistake  of,  see  Judg- 
ME.NT,  381,  382. 

Imputing  to  attorney  knowledge  of  defects 
in  Itgal  proceedings  taken  under  his 
direction,  see  Judicial  Sale,  9. 

Relation  of  attorney  and  client  between 
juror  and  party,  see  Jury,  64. 

Liability  for  use  and  occupation  of  attor- 
ney taking  possession  of  leasehold  of 
debtor,  see  Landlord  and  Tenant,  183, 
184. 

Slander  of,  see  Libel  and  Slander,  52. 

Libel  or  slander  by,  see  Libel  and  Slander, 
104,  125;   Trial,  275. 

Delay  in  instituting  suit  caused  by  inter- 
ference by  stranger  with  attorneys,  see 
Limitation  of  Actions,  16. 

Advice  of  counsel  as  defense  to  action  for 
malicious  prosecution,  see  Malicious 
Prosecution,  10-12. 

Notice  to  attorney  as  notice  to  client,  see 
Notice,  22,  23. 

Notice  to  special  attorney  as  notice  to  gen- 
eral attorney,  see  Notice,  22. 

Eligibility  to  office  of  county  attorney,  see 
Officers,  9, 

Clients  as  necessary  parties  plaintiff  in  ac- 
tion of  attorney  for  their  benefit,  see 
Parties,  150. 

Compensation  for  services  rendered  by  phy- 
sician to  lawj'er  in  examination  of  bis 
client,  see  Physicians  and  Surgeons, 
33,  34. 

Power  of  attorney,  see  Pmnoipal  and 
Agent,  46-49.  , ,  - 


ATTORNEYS,   I.   a,   b. 


203 


Effect  of  slight  indulgence  to  maker  by 
attorney  charged  with  collection  of 
note,  on  surety's  liability,  sec  Princi- 
pal AND  Surety,  53. 

Acting  under  advice  of  counsel  in  infring- 
ing trademark,  see  Trademarks,  28. 

Power  of  court  to  compel  disclosure  of  facts 
by  counsel,  see  Tiual,  4. 

Competency  as  witness,  see  Witnesses,  9. 

I.  Right  to  practise;  control  of  court. 

Right   of   corporation   to   practise   law,   see 

Attxjrney  General,  8;   Cobposations, 

13. 
Validity   of   statute   forbidding   solicitation 

of    business    by,    see    CoNSXiiunoNAL 

Law,  433. 

a.  Admission. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  The  power  to  admit  applicants  to 
the  practice  of  the  law  is  judicial,  and  not 
legislative.  Hanson  v.  Grattan,  34:  240, 
115  Pac.  646,  84  Kan.  843. 

2.  A  legislative  requirement  that  per- 
sons possessing  certain  qualifications  shall 
be  admitted  to  practise  law  does  not  violate 
the  constitutional  or  inherent  prerogatives 
of  the  court.  Re  Applicants  for  License  to 
Practise  Law,  10:  288,  55  S.  E.  635,  143  N. 
C.  1.  (Annotated) 

3.  The  court  cannot  inquire  into  the 
character  of  an  applicant  ,for  admission  to 
the  bar,  under  a  statute  providing  that  ap- 
plicants shall  be  of  certain  age  and  file  a 
certificate  of  character,  and  that  all  appli- 
cants who  shall  satisfy  the  court  of  their 
competent  knowledge  of  the  law  shall  re- 
ceive licenses  to  practise.  Re  Applicants  for 
License  to  Practise  Law,  10:  288,  55  S.  E. 
635,  143  N.  C.  1. 

4.  When  an  applicant  is  legally  admit- 
ted to  the  practice  of  law,  he  becomes  there- 
by an  officer  of  the  court  for  the  term  of 
his  life,  or  until  he  shall  have  been  dis- 
barred by  the  judgment  of  a  court  of  com- 
petent jurisdiction.  Hanson  v.  Grattan, 
34:  240,  115  Pac.  646,  84  Kan.  843. 

h.   Disbarment  or  suspension. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Statute  requiring  attorney  to  prosecute  dis- 
barment proceedings  without  fees,  see 
infra,  51. 

Nature  of  action  for  disbarment,  aee  Action 
OR  Suit,  60. 

Review  on  appeal  of  judgment  of  disbar- 
ment, see  Appeal  and  EBROfR,  973. 

Statute  as  to  disbarment  as  encroachment 
on  judicial  powers, '^  see  CoNSTiTtrrioN- 
al  Law,  131. 

Contempt  by  disbarred  attorney,  see  Con- 
tempt, 29,  30,  102. 

Sufficiency  of  evidence  to  sustain  judgment 
of  disbarment,  see  Evidence,  2315. 

Digest  1-52  KR.A.(N.S.) 


Disqualification  of  judge  to  sit  at  disbar- 
ment proceedings,  see  Judges,  19. 

Institution  of  disbarment  proceedings  by 
commonwealth's  attorney,  see  State, 
14. 

5.  An  attorney  at  law  who  has  been 
legally  called  upon  to  give  testimony  or 
produce  evidence  tending  to  establish  that 
he  received  a  bribe  is  not  granted  immunity 
from  disbarment  therefor  by  a  constitu- 
tional provision  that  "no  person  shall  be 
prosecuted  or  subjected  to  any  penalty  or 
forfeiture  for  or  on  account  of  any  trans- 
action, matter,  or  thing  concerning  which 
he  may  so  testify,  or  produce  evidence,"  as 
such  provision  relates  only  to  criminal  ac- 
tion, and  an  action  for  disbarment  is  a  civil 
proceeding.  Re  Riggers,  25:  622,  104  Pac. 
1083,   24    Okla.    842. 

6.  The  appellate  court  which  has  power 
to  admit  an  attorney  to  practice  has  in- 
herent original  jurisdiction  to  suspend  or 
disbar  him  for  offensive  language  directed 
towards  it  in  a  petition  for  a  rehearing.  Re 
Robinson,  15:  525,  92  Pac.  929,  48  Wash.  153. 
Grounds  for. 

Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  131. 

Disbarment  of  attorney  because  of  convic- 
tion of  felony  as  cruel  and  unusual 
punishment,  see  Criminal  Law,  238. 

See  also  infra,  27-29. 

7.  An  attorney  cannot  be  disbarred  for 
lending  money  on  usury,  if  the  taking  of 
usury  is  not  an  offense  against  the  law. 
People  ex  rel.  Chicago  Bar  Asso.  v.  Wheeler, 
45:  1202,  102  N.  E.  188,  259  111.  99. 

8.  An  attorney  has  the  right,  in  com- 
mon with  every  citizen,  to  comment  upon 
and  criticize,  without  any  restriction,  the 
rulings  of  a  judicial  officer  in  an  action 
which  has  been  finally  determined,  and  is 
not  answerable  therefor  otherwise  than  in 
an  action  triable  by  jury,  unless  the  com- 
ment or  criticism  is  so  base  and  vile  as  to 
establish  clearly  his  bad  character  and  his 
unfitness  to  remain  a  member  of  an  honor- 
able profession,  in  which  case  his  conduct 
may  be  considered  a  sufficient  cause  for  dis- 
barment. Re  Hart,  17:  585,  116  N.  W.  212, 
104  Minn.  88.  (Annotated) 

9.  An  attorney,  in  exercising  his  right 
to'  comment  upon  and  criticize  the  rulings 
of  a  judicial  officer,  is  guilty  of  professional 
misconduct  for  which  he  may  be  disbarred 
or  suspended,  where  he  addresses  to  the 
chief  justice  of  the  supreme  court  a  per- 
sonal letter  impugning  both  the  intelligence 
and  the  integrity  of  the  chief  justice  and 
his  associates,  in  the  decision  of  certain 
appeals  then  fully  ended  and  in  which  he 
had  been  attorney  for  the  defeated  litiaants. 
Re  Hart,  17:  585",  116  N.  W.  212,  104  Minn. 
88. 

10.  The  entry  upon  his  records  by  the 
trial  judge,  after  reversal  of  his  decision  by 
the  supreme  court,  of  a  statement  that  the 
supreme  court  made  a  statement  of  facts  not 
supported  by  the  record  for  the  purpose  of 
bolstering  up  a  decision,  neither  founded  on 
law  nor  supported  by  facts,  its  opinion  be- 


204 


ATTUitNEYS,  1.  b. 


ing  an  abnormally  stianye  document,  and 
a  reversal  of  a  decision  that  had  been  ac- 
cepted law  for  forty  years;  all  of  which 
was  reprehensible  if  the  court  knew  what 
it  was  doing,  pitiful  if  it  did  not. — is  such 
a  violation  of  his  duty  as  an  attorney  and 
officer  of  the  supreme  court  as  to  justify  his 
suspension  or  disbarment,  although  he  de- 
clares under  oath  that  he  meant  no  disre- 
spect for  that  court,  and  the  matters  on 
which  the  statement  by  the  supreme  court 
was  based  came  to  its  attention  during  the 
argument  of  the  case  before  it,  of  which 
fact  the  trial  judge  was  ignorant.  Re  Breen, 
17:572,  93  Pac.  997,   30   Nev.   164. 

(Annotated) 

11.  An  attorney  who  states  in  a  petition 
for  a  rehearing  that  it  is  commonly 
reported  that  the  court  was  controlled  by 
political  motives  in  its  decision  in  the  case, 
and  suggests  that  in  order  to  relieve  itself 
from  such  slanderous  rumors  it  should  en- 
tertain the  petition  and  that  the  petition 
need  not  become  public  property,  violates 
his  statutory  duty  to  maintain  due  respect 
to  the  court  and  to  abstain  from  offensive 
personality,  and  is  guilty  of  an  attempt 
to  intimidate  the  court  into  a  favorable  de- 
cision, although  he  himself  disavows  his  be- 
lief in  the  truth  of  the  scandalous  ,state- 
ments  and  of  any  intention  to  reflect  on  the 
court.  Re  Robinson,  15:  525,  92  Pac.  929, 
48  Wash.  153.  (Annotated) 

12.  The  legislature  may  authorize  the 
disbarment  without  a  trial  by  jury,  of  an 
attorney  at  law,  for  soliciting  business. 
State  ex  rel.  Mackintosh  v.  Rossman,  21: 
821,  101  Pac.  357,  53  Wash.  1. 

13.  An  attorney  at  law  who  procures  ad- 
mission to  practise  and  has  himself  en- 
rolled in  the  courts  of  one  state,  without 
disclosing  a  previous  disbarment  for  fraud 
and  deceit  in  another  state,  is  thereby 
guilty  of  practising  such  deceit  on  the  ad- 
mitting court  as  to  require  his  disbar- 
ment, under  a  statute  providing  that  an 
attorney  who  is  guilty  of  deceit,  or  con- 
sents thereto  with  intent  to  deceive  a  court 
or  judge,  is  liable  to  be  disbarred.  Re 
Mosher,  24:  530,  102  Pac.  705,  24  Okla.  1. 

(Annotated) 

14.  Courts  have  no  inherent  power  to  dis- 
bar an  attorney  for  conviction  of  crime  in  a 
foreign  jurisdiction  where  the  legislature 
has  expressly  provided  what  convictions 
shall  result  in  disbarment,  which  do  not  in- 
clude those  in  foreign  jurisdictions.  State 
V.  Ebbs,  19:  892,  63  S.  E.  190,  150  N.  C.  44. 

15.  Conviction  in  another  jurisdiction  is 
not  within  the  provision  of  a  statute  declar- 
ing that  an  attorney  must  be  disbarred  upon 
his  conviction  of  a  crime  punishable  by  im- 
prisonment in  the  penitentiary,  and  permit- 
ting his  disbarment  if  he  shall  have  been 
convicted  in  open  court  of  some  criminal 
offense  showing  himself  unfit  to  be  trusted. 
State  V.  Ebbs,  19  f  892,  63  S.  E.  190,  150  N. 
C.  44.  (Annotated) 

16.  A  justice's  court  conviction  for  petit 
larceny  affords  sufficient  ground  for  disbar- 
ment under  a  statute  providing  that  an  at- 
torney at  law  may  be  disbarred  for  and  on 
Digest  1-52  KR^.(N.S.) 


account  of  his  con\iction  of  a  felony  or  nils- 
demeanor  involving  moral  turpitude.  Ho 
lienry,  21:  207,  99  Pac.  1054,  15  Idaho,  755. 
lUa.  ]\Ioral  turpitude  for  conviction  of  an 
offense  involving  which  an  attorney  may 
|je  disbarred,  is  an  act  of  baseness,  vileness, 
or  depravity  in  the  private  and  social  duties 
which  a  man  owes  to  his  fellow  men,  or  to 
society  in  general,  contrary  to  the  accepted 
and  customary  rule  of  right  and  duty  be- 
tween man  and  man.  Re  Henry,  21:207, 
99.  Pac.  1054,  15  Idaho,  755. 

17.  The  commission  of  the  crime  of 
petit  larceny  involves  moral  turpitude,  with- 
in the  meaning  of  a  statute  providing  for 
the  disbarment  of  an  attorney  at  law  for 
and  on  account  of  his  conviction  of  a  fel- 
ony or  misdemeanor  involving  moral  turpi- 
tude. Re  Henry,  21 :  207,  99  Pac.  1054,  15 
Idaho,  755. 

18.  Under  a  statute  providing,  in  effect, 
that  an  attorney  shall  not  be  disbarred 
for  the  commission  of  an  offense  again&t  a 
criminal  statute  until  after  conviction, 
where  the  offense  was  not  connected  with 
any  act  of  wilful  disobedience,  or  violation 
of  an  order  of  court  requiring  him  to  do 
or  forbear  any  act  connected  with  the  line 
of  his  profession,  or  related  to  his  duties  as 
an  attorney ;  and  providing  further,  in  effect, 
that  there  shall  be  no  disbarment  for  any 
act  involving  moral  turpitude  not  connected 
with  any  professional  duty,  if  such  act  is 
not  one  for  which  a  prosecution  and  con- 
viction lies, — an  attorney  cannot  be  dis- 
barred for  having  obtained  state  examina- 
tion questions  and  sold  them  to  prospec- 
tive applicants  in  advance  of  the  examina- 
tion, thereby  enabling  incompetent  persons 
to  prepare  for  the  examination  and  fraudu- 
lently secure  certificates  to  teach  school, 
where  it  is  neither  charged  that  the  at- 
torney has  been  indicted  and  convicted 
therefor,  nor  that  the  acts  constitute  a  vio- 
lation of  anv  statute.  Re  Saddler,  44: 
1 195,  130  Pac'  906,  35  Okla.  510. 

19.  The  wrongful  detention  of  a  portion 
of  the  purchase  price  of  real  estate  by  an 
attorney  while  acting  as  agent  for  the  sale 
thereof  constitutes  a  sufficient  ground  for 
his  disbarment,  although  he  may  not  have 
been  called  upon  to  give  legal  advice,  or  to 
take  part  in  litigation.  Re  Wilson,  21:  517, 
100  Pac.  635,  79  Kan.  674. 

20.  Gross  carelessness  in  failing  to  keep 
books  and  accounts  of  clients,  and  in  mis- 
representing the  facts  to  clients  because  of 
failure  to  know  the  truth  with  respect  to 
them,  as  his  duty  requires,  is  not  sufficient 
to  require  the  disbarment  of  an  attorney. 
Re  Robertson,  36:  442,  132  N.  W.  684,  28  S. 
D.  70. 

21.  Immoral  conduct  is  no  ground  for 
disbarring  an  attorney  where  for  several 
jears  after  it  occurred  he  has  lived  an 
exemplary  life.  |le  Sherin,  40:  801,  130 
X.  W.  761,  133  X.  W.  701,  27  S.  D.  232. 

22.  Publishing  advertisements  in  other 
states,  and  sending  pamphlets  there,  for  the 
purpose  of  attracting  their  citizens  to  the 
state  for  the  purpose  of  instituting  divorce 


ATTORNEYS,  I.  c— II.  a. 


205 


proceedings   in   its   courts,   and   giving   era-  ] 
ployment  to  the  one  doing  the  advertising, 
is   misconduct  on  the  part  of   an   attorney 
within  the  meaning  of  a  statute  permitting  j 
his  disbarment  or  suspension  therefor.     Re 
Schnitzer,  33:  941,  112  Pac.  848,  33  Nev.  581. 

(Annotated) 

23.  An  attorney  bringing  a  suit  for  di- 
vorce upon  the  identical  pleadings  upon  ^ 
which,  after  full  hearing,  another  court  of  ; 
concurrent  jurisdiction  has  dismissed  the  ; 
suit  for  want  of  equity,  is  bound  to  disclose  ; 
that  fact  to  the  court,  under  penalty  of  dis-  ] 
barment  or  suspension  for  failure  to  do  so.  ! 
Teople  ex  rel.  liealy  v.  Case,  25:  578,  89  N.  i 
E.  638,  241  111.  279.  i 

24.  Threatening  a  man  who  had  deserted 
his  wife  and  was  living  in  adultery  with 
another  woman  in  another  state,  with  crim- 
inal prosecution  and  extradition  unless  he 
secured  the  release  of  an  attachment  of 
property  left  by  him  in  the  state,  under 
a  note  which  he  had  given  his  paramour, 
and  gave  his  wife  a  bill  of  sale,  and  paid 
her  the  sum  of  money  to  Avhich  she  was 
justly  entitled,  is  extortion  for  which  an 
attorney  may  be  disbarred,  where  the  stat- 
ute defines  extortion  as  obtaining  property 
from  another  with  his  consent,  induced  by 
the  wrongful  use  of  force  or  fear.  Re 
Sherin,  40:  801,  130  N.  W.  761,  27  S.  D. 
701,  27  S.  D.  232.  ('Annotated) 
Practice  as  to. 

25.  Disbarment  proceedings  should  not 
be  begun  against  an  attorney  for  a  crime 
not  connected  with  his  work  as  an  attorney, 
until  after  the  matter  has  been  disposed 
of  by  a  proper  criminal  proceeding.  Re 
Sherin,  40:  801,  130  N.  W.  761,  133  N.  W. 
701,  27  S.  D.  232. 

What  will  preclude;  defenses. 

26.  Ceasing  advertising  for  divorce  busi- 
ness among  nonresidents  upon  complaint  of 
the  bar  association  may,  in  case  of  a  first 
delinquency,  be  ground  for  leniency  on  the 
part  of  the  court  in  fixing  punishment  there- 
for. Re  Schnitzer,  33:  941,  112  Pac.  848, 
33  Nev.  581. 

27.  The  attempt  on  the  part  of  an  at- 
torney to  inform  the  judg;  before  whom  he 
has  brought  a  suit  for  divorc?,  that  another 
judge  had  dismissed  a  bill  alleging  the  same 
facts  on  the  merits  after  a  hearing,  if  it  is 
made  out  of  court  and  fails  because  of 
that  fact,  will  not  condone  his  offense  of 
failure  to  inform  the  judge  of  such  dismissal 
in  open  court,  so  as  to  absolve  him  from 
punishment  for  his  fraud  upon  the  court. 
People  ex  rel.  Healy  v.  Case,  45:  578,  89  N. 
E.  638,  241  111.  279. 

28.  A  constitutional  provision  that  all 
attorneys  at  law  licensed  to  practise  in  any 
of  the  United  States  courts  for  the  Indian 
territory,  shall  be  eligible  to  practise  in 
any  court  of  the  state  of  Oklahoma  without 
examination  does  not  preclude  the  supreme 
court  from  inquiring  into  the  circumstances 
of  a  fraud  practised  on  the  Federal  court 
wiiich  admitted  an  attorney  to  practise  in 
the  territory  before  the  adoption  of  the 
Constitution,  or  prevent  his  disbarment 
Digest  1-52  L.R.A.(N.S.) 


therefor.     Re  Mosher,  24:  530,  102  Pac.  705, 
24  Okla.  61. 

29.  A  pardon  of  an  attorney  convicted  of 
forgery  will  not  prevent  his  being  dis- 
barred where  evidence  of  good  moral 
character  is  necessary  to  an  attorney's  li- 
cense, and  the  courts  have  inherent  power 
to  disbar  for  want  thereof,  although  the 
pardon  releases  him  from  all  liability  and 
consequences  of  the  conviction,  and  the  stat- 
ute provides  that  no  person  convicted  of 
felony  shall  be  permitted  to  practise  law, 
on  the  theory  that  the  statute  creates  a  li- 
ability connected  with  the  offense  which  is 
released  by  the  pardon,  since  the  pardon 
does  not  restore  the  character.  Nelson  v. 
Com.  16:  272,  109  S.  W.  337,  128  Ky.  779. 

(Annotated) 
c.  License.  ' 

(See  same  heading  in  Digest  L.R.A.  1-70.) 

d.  Control  of  court  generally. 

30.  The  court  cannot  by  ex  parte  order 
require  the  publisher  of  a  newspaper,  al- 
though he  is  also  an  attorney  at  law,  to 
justify  in  open  court  an  article  in  which 
he  raises  a  suspicion  that  the  jury  was 
bribed  in  an  action  tried  before  the  court, 
where  the  information  may  necessitate  the 
naming  of  persons  in  good  standing  be- 
fore the  community,  and  subject  the  pub-  ^ 
lisher  to  libel  suits.  Warren  v.  Connolly, 
33:  314,  130  N.  W.  637,  165  Mich.  274. 

31.  An  attorney  cannot  complain  of  j^he 
imposition  of  a  fine  upon  him  for  ignoring 
rulings  of  the  court  that  he  cannot  put  a 
certain  kind  of  questions  to  witnesses. 
Grant  v.  State,  4a:  428,  148  S.  W.  760,  — 
Tex.  Crim.  Rep.  — . 

//.  Belation  to  client. 


a.  In  general;  liahility. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Stipulation  for  dismissing  appeal  without 
aid  of  counsel,  see  Appeal  and  Errob, 
388. 

Right  of  accused  to  consult  with  his  at- 
torney, see  Criminal  Law,  78-81. 

Estoppel  to  maintain  action  to  compel  de- 
livery of  documents  by  attorney,  see 
ESTOPPEX,  199. 

Confidential  communications  to,  see  Evi- 
DENCK,   1282,   1296-1306,  1338. 

Attorney's  purchase  for  resale  of  subject- 
matter  of  employment,  see  Evidence, 
268. 

Validity  of  employment  of  attorney  by  mu- 
nicipality, see  Municipal  Cokpora- 
T10N8,  242. 

Right  of  attorney,  after  relations  with  client 
have  ceased,  to  purchase  client's  land 
at  foreclosure  sale,  see  Trusts,  54. 

32.  An   attorney  in  hac  re  cannot  sus- 
tain a  purchase  from  a  client  of  the  subject- 


206 


ATTORNEYS,  11.  b. 


matter  of  the  retainer,  where  it  appears 
that  during  the  course  of  his  employment 
he  formed  an  opinion  that  the  property  was 
more  valuable  than  had  tlieretol'ore  been  as- 
sumed, which  opinion  he  failed  to  disclose, 
since  by  such  silence  he  failed  to  give  his 
client  all  that  reasonable  advice  against 
himself  that  he  would  give  against  a  third 
person.  Crocherou  v.  Savage  (N,  J.  Err. 
&  App.)  23:  679,  73  Atl.  33,  75  N.  J.  Eq.  589. 

(Annotated) 

33.  An  attorney  in  whose  name  his 
client  has  placed  property  for  the  purpose 
of  defrauding  the  creditors  of  the  client 
cannot  refuse  to  comply  with  his  agreement 
to  return  it,  on  the  tlieory  that  the  parties 
being  in  pari  delicto,  equity  will  leave 
theui  where  it  finds  them.  Lindsley  v.  Cald- 
weli,  37:  161,   137   S.   W.  983,  234  Mo.  498. 

34.  An  attorney  who  makes  a  collection 
for  another,  there  being  no  special  agree- 
ment as  to  service,  should  remit  the  pro- 
ceeds to  his  client,  less  his  reasonable 
charges,  within  a  reasonable  time,  or  noti- 
fy the  latter  of  readiness  to  pay.  Ott  v. 
Hood,  44:  524,  139  N,  W.  762,  152  Wis.  97. 

35.  An  attorney  who  has  received  a 
sum  of  money  to  prosecute  a  suit  to  judg- 
ment may  withdraw  from  the  case  without 
returning  the  money,  if  although  he  has 
performed  services  worth  all  he  has  re- 
ceived the  client  falsely  charges  him  in  a 

•  telegram  with  deceiving,  lying,  and  neglect- 
ing him,  and  states  that  he  does  not  in- 
tend to  stand  his  abuse  any  longer.  Gen- 
row  V.  Flynn,  35:  960,  131  N.  W.  1115, 
166    Mich.    5G4.  (Annotated) 

Termination  of  relation. 

36.  An  attorney  at  law  employed  for  an 
indefinite  period,  and  for  a  contingent  fee, 
is  a  mandatory  whose  power  is  revocable, 
as  it  is  not  coupled  with  an  interest  in  the 
cause  of  action;  and  the  principal  may  ter- 
minate the  relationship  of  attorney  and 
client  at  will.  Louque  v.  Dejan,  38:  389,  56 
So.    427.    129    La.    519.  (Annotated) 

37.  Where  a  party  to  an  action  dies 
after  judgment,  the  agency  and  authority 
of  his  attorney  is  at  once  terminated,  and 
the  attorney  must  obtain  his  employment 
and  authority  from  a  legal  representative 
of  the  estate  of  such  deceased  person  be- 
fore he  can  prosecute  an  appeal  in  the 
case.  McCorniek  v.  Shaughnessy,  34:  11 88, 
114  Pac.  22,  19  Idaho,  465.  (Annotated) 
Liability. 

Condition  precedent  to  action  against  at- 
torney by  client,  see  Action  ob  Suit, 
30. 

Condition  of  right  to  defend  on  merits,  ac- 
tion to  recover  money  collected,  see 
Constitutional  Law,  579. 

Liability  to  infant  for  money  turned  over 
to  next  friend,  see  Election  of  Reme- 
dies, 21;  Infants,  113. 

Evidence  to  show  intent  of  attorney  in 
giving  forged  note  to  client,  see  Evi- 
DKNCE,  1634. 

Liability  for  interest  on  amount  collected 
for  minor  and  paid  to  his  father,  wliere 
latter  fails  to  account,  see  Interest, 
43. 

Digest  1-52  I..R.A.(N.S.^ 


Running  of  limitations  against  liability^ 
see  LijUTArioN  of  AcrriONS,  114,  155, 
173-175, 

Pleading  in  action  against,  see  Pleading, 
389. 

SuiDciencj'  of  replication  of  fraudulent  con- 
cealment to  plea  of  limitation  in  suit 
against  attorney  for.  negligence,  see 
Pleading,  551. 

What  is  reasonable  time  to  allow  attorney 
to  pay  over  money  collected  by  him  for 
client,  see  Tkial,  207. 

38.  Fraud  is  not  necessary  to  render  an 
attorney  liable  for  wrongfully  dismissing 
his  client's  action.  Cornell  v.  Esden,  51; 
279,  139  Pac.  602,  78  Wash.  662. 

39.  In  defense  of  a  claim  by  the  admin- 
istrator of  a  child  for  money  recovered  in 
a  suit  by  the  administrator  for  the  negli- 
gent killing  of  the  child,  which,  under  the 
statute,  is  solely  for  the  benefit  of  the 
child's  parents,  the  attorney  may  show  that 
he  paid  the  money  to  assignees  of  the  parents 
and  in  satisfaction  of  attorneys'  liens  which 
might  have  been  asserted  against  the 
money  in  his  hands,  notwithstanding  the 
statute  provides  that  every  attorney  receiv- 
ing money  for  his  client,  and  refusing  to  pay 
the  same  when  demanded,  shall  be  proceeded 
against  in  a  summary  way,  and  be  subject 
to  interest  and  penalties.  White  v.  Ward, 
18:  568,  47  So.   166,  157  Ala.  345. 

40.  An  attorney  proceeded  against  sum- 
marily under  a  statute  for  failure  to  pay 
over  money  collected  for  his  client  is  not 
deprived  of  the  right  to  defend  on  the  merits 
in  case  he  fails  to  pay  the  money  into  court, 
by  a  provision  of  the  statute  that  he  may 
avoid  interest  and  penalty  by  payment  of 
the  money  into  court  to  await  judgment. 
White  V.  Ward,  18:  568,  47  So.  166,  157  Ala. 
345. 

41.  If  an  attorney  makes  misrepresenta- 
tions to  his  client  as  to  whether  he  has  col- 
lected money  for  the  latter,  whereby  such 
client,  in  reasonable  reliance  thereon,  fails 
seasonably  to  invoke  the  law  for  recovery 
thereof,  thus  permitting  the  right  thereto  to 
be  extinguished  by  the  statute  of  limita- 
tions, a  cause  of  action  accrues  in  favor  of 
the  client  against  his  attorney  for  damages 
for  such  injury.  Ott  v.  Hood,  44:  524,  139 
N.  W.  762,  152  Wis.  97. 

b.  Authority. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Revocation  or  termination  of  authority,  see 
supra,  36,  37. 

Payment  by  bank  of  draft  indorsed  by  pay- 
ee's attorney,  see  Banks,  137. 

Authority  to  make  (lemand  for  dower,  see 
CoNTBACTS,  255;  Dower,  36. 

Presumption  as  to  authority,  see  Evidence, 
180. 

Estoppel  of  client  by  mistake  ef  attorney, 
see  Insurance,  549. 

For  infants,  authority  to  satisfy  judgment, 
see  JuBGUBNT,  314. 

t.«i.i4>.A.ii.J.    irl— i    iifSTukH 


AITORNEYS,  II.  c,  1. 


207 


Estoppel  to  deny  authority  to  represent  one 
in  action,  see  Judgment,  336. 

To  satisfy  judgment  against  municipality, 
see  Municipal  Cobporations,  250. 

42.  The  attorney  appointed  by  the 
guardian  ad  litem  to  prosecute  a  suit  for  a 
minor  has  authority  to  satisfy  the  judg- 
ment. State  ex  rel.  Lane  v.  Ballinger,  3: 
72,  82  Pac.  1018,  41  Wash.  23.     ^ Annotated) 

43.  The  employment  of  an  attorney  to 
conduct  a  trial  to  final  termination  in  the 
nisi  prius  court  does  not  authorize  him  to 
appeal  from  an  adverse  decision  or  bind  his 
client  for  the  cost  of  a  transcript  of  evi- 
dence to  be  used  for  that  purpose.  Tobler 
T.  Nevitt,  23:  702,  100  Pac.  416,  45  Colo.  231. 

(Annotated) 

To  settle  or  make  final  disposition  of 
suit. 

Collateral  attack  on  compromise  of  action 
by  attorney,  see  Compromise  and  Set- 
tlement, 10. 

Vacation  of  order  of  dismissal  entered  pur- 
suant to  unauthorized  compromise  by 
attorney,  see  Judgment,  337. 

Relief  from  judgment  entered  upon  imau- 
thorized  consent  of  attorneys,  see  Judg- 
ment, 344,  345. 

Running  of  limitations  against  right  of  ac- 
tion because  of  wrongful  dismissal  of 
action  by  attorney,  see  Limitation  of 
Actions,  175. 

See  also  infra,  52. 

44.  Under  his  general  authority,  an  at- 
torney has  tiie  exclusive  control  of  the  rem- 
edy, and  he  may  discontinue  the  action  by 
a  dismissal  without  prejudice,  and  his  client 
is  bound  by  his  act.  Bacon  v.  Mitchell,  4: 
244,  106  N.  W.  129,  14  N.  D.  454. 

(Annotated) 

45.  An  attorney,  under  his  general  re- 
tainer, has  no  implied  power  to  settle  and 
compromise  his  client's  cause  of  action, 
except  when  confronted  Avith  an  emergency, 
and  prompt  action  is  necessary  to  protect 
the  interests  of  the  client,  and  there  is  no 
opportunity  for  consultation  with  him. 
Gibson  v.  Nelson,  31:  523,  126  N.  W.  731, 
111    Minn.    183.  (Annotated) 

46.  One  dealing  with  an  attorney  ia 
bound  to  take  notice  of  the  extent  of  the 
attorney's  authority  or  lack  of  authority 
to  compromise  his  client's  cau«e  of  action, 
and  therefore  cannot  be  heard  to  say  that 
he,  acting  with  the  attorney  for  the  adverse 
party,  compromised  a  cause  of  action  in 
good  faith  and  before  notice  that  it  had 
been  discontinue!  by  the  party  himself. 
Gibson  v.  Nelson.  31:  523,  126  N.  W.  731, 
111   Minn.   183. 

47.  A  general  retainer  authorizes  an  at- 
torney to  do  anything  fairly  pertaining  to 
the  prosecution  of  his  client's  cause,  but 
not  to  surrender  or  compromise  away  his 
client's  substantial  rights;  and  therefore, 
an  attorney  emploj'ed  by  the  agent  of  a 
landlord  to  collect  rent  has  no  authority,  by 
virtue  of  such  general  employment,  to 
compromise  a  suit  brought  on  such  claim, 
and  surrender  the  claim  for  rent,  and  agree 
that  tlie  defendant  be  paid  a  certain  sum 
Digest  1-52  I..R»A.(N.S.) 


on  a  cross  petition  filed  by  him.    Turner  v. 
Fleming,  45:  265,  130  Pac.  551,  37  Okla.  75. 

48.  An  attorney  is  not  empowered  by 
Minn.  Rev.  Laws  1905,  §  2283,  providing 
that  an  attorney  may  bind  his  client  at 
any  stage  of  the  action  by  an  agreement 
made  in  ooen  court,  or  in  the  presence  of 
the  clerk,  and  entered  in  the  minutes  of  the 
court,  or  by  a  writing  signed  by  him,  to 
compromise  and  settle  his  client's  cause  of 
action  without  consulting  the  client,  where 
there  is  no  emergency,  and  the  client's  in- 
terests do  not  demand  immediate  attention, 
and  the  client  is  near  at  hand  and  accessi- 
ble. Gibson  v.  Nelson,  31 :  523,  126  N.  W. 
731,   111   Minn.   183. 

To   enter  retraxit. 

49.  An  attorney  cannot  without  author- 
ity enter  a  retraxit  in  a  suit  on  a  promis- 
sory note,  so  as  to  bar  the  plaintiff  from 
commencing  another  suit.  Shefi'er  v.  Per- 
kins, 25:  1313,  75  Atl.  6,  83  Vt.  185. 

( Annotated ) 

c.  Compensation;  lien. 

1.  In  general;  amotint  of. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Charge  for  services  accepted  by  client  as 
account  stated,  see  Accounts,  8. 

Review  of  discretion  of  trial  court  as  to 
amount  of  fees  to  be  allowed,  see  Ap- 
peal AND  Error,  572. 

Motion  to  require  election  between  counts 
in  suit  for  compensation,  see  Appeal 
AND  Error,  651.  ♦ 

Liability  on  injunction  bond  for  attoraey's 
fees,  see  Appeal  and  Error.  699;  In- 
junction, 432-434. 

Validity  of  statute  allowing  attorneys'  fees 
in  mechanics'  lien  case,  see  Appeal 
and  Error,  739. 

Counsel  fees  in  action  for  divorce,  see  Ap- 
peal and  Error,  987;  Divorce  and 
Separation,  91,  101-106. 

Review  of  decision  of  referee  in  suit  for 
compensation,  see  Appeal  and  Error, 
1010. 

Stipulation  in  contract  for  attorney's  fees 
to  be  added  to  obligation,  see  Attor- 
neys' Fees. 

Recovery  of  attorney's  fees  in  suit  on  at- 
tachment  bond,    see   Attachment,    35. 

Allowance  to  attorney  of  trustee  in  bank- 
ruptcy, see  Bankruptcy,  128.    • 

Validity  of  note  given  in  consideration  of 
services  in  procuring  divorce,  see  Bills 
AND  Notes,  17. 

Champertous  agreement  between  attorney 
and  client,  see  Champerty  and  Main- 
tenance, II. 

Including  attorney's  fee  in  penalty  for  fail- 
ure of  railroad  to  pay  claim  within  cer- 
tain time,  see  Constitutional  Law, 
566. 

Contempt  in  failing  to  pay  attorneys'  fees, 
see  Contempt,  08. 


208 


ATTORNEYS,  II.  c,  I. 


Acceptance  bj*  disbarred  attorney  of  fee  for 
services  as  contempt,  see  Contempt,  30, 
102. 

Liability  for  counsel  fee  of  leasee  agreeing 
to  pay  cost  of  comvcyance  of  fee  to  him, 
see  Contracts,  379. 

Public  policy  as  to  contract  affecting,  see 
Contracts,  4(55-471. 

Recovery  on  quantum  meruit  where  contract 
for  services  is  void,  see  Contracts,  611, 
612. 

Recovery  of  attorney's  fees,  in  action  for 
contribution,  see  Contbibution  and  In- 
demnity, 9. 

Liability  of  corporation  for  legal  services 
rendered  before  incorporation,  see  Cor- 
porations, 117. 

Counsel  fees  as  element  of  costs,  see  Costs 
AND  Fees,  23-32. 

Allowance  for  attorneys  as  element  of  dam- 
ages without  any  stipulation  therefor, 
see  Damages,  1-11.  r. 

Recovery  of  expense  incurred  for  fees  of, 
in  preparing  for  trial,  on  dismissal 
thereof,  see  Dismissal  and  Discon- 
tinuance, 6. 

Admissibility  in  action  for,  of  declarations 
of  client,  since  deceased,  see  Evidence, 
1390. 

Liability  of  estate  for  fees  of  attorneys,  see 
Executors  and  Administrators,  66, 
101,  102,  119-121;  Pleading,  179. 

Right  of  attorney  to  surcharge  account  of 
administrator  in  which  attorneys'  fees 
are  allowed,  see  Executors  and  Ad- 
ministrators, 131. 

Liability  of  surety  on  administrator's  bond 
for,  see  Executors  and  Administra- 
tors, 131. 

fiurchargihg  executor's  account  for  over- 
payment of  counsel  fees,  see  Executors 
AND  Administrators,  128,  129. 

Right  to  issue  execution  to  secure  attorney's 
fee  for  services,  see  Execution,  5. 

Liability  of  husband  for  wife's  attorneys' 
fees  in  divorce  suit,  see  Husband  and 
Wife,  3,  4, 

Right  to  recover  for  services  in  securing  re- 
lease of  person  from  insane  asylum, 
see  Incompetent  Persons,  7. 

Liability  of  infant  for  legal  services,  see 
Infants,  56,  65,  66. 

Taxation  of  attorneys'  fees  against  defend- 
ant in  injunction  suit,  see  Injunction, 
97. 

Liability  for  counsel  fees  under  guaranty 
insurance  policy,  see  Insurance,   911. 

In  action  to  annul  marriage,  see  Mabbiage, 
28-30,  44. 

Liability  of  church  for  attorneys'  fees,  see 
Religious  Societies,  17. 

Recovery  of  attorneys'  fees  in  action  on  re- 
plevin bond,  see  Replevin,  30. 

Instruction  in  action  by  attorney  to  re- 
cover compensation,  see  Trial,  1012. 

Recovery  of  attorneys'  fees  upon  counter- 
claim in  replevin  action,  see  Set-Off 
'    'AND  Counterclaim,  12. 

50.  An  agreement  of  .a  client  involving 
the  payment  of  a  limap  sum  to  his  attorneys 
for  services  in  securing  a  divorce  and  set- 
Dieest  1-52  L.R.A.(N.S.> 


tling  his  wife's  claim  for  alimony  is  invalid 
when  made  after  terms  of  settlement  liavp 
been  agreed  to  by  the  wife,  and  that  fact 
is  not  disclosed  to  the  client.  Donaldson  v. 
Eaton,  14:  1168,  114  X.  W.  19,  136  Iowa.  650. 

51.  No  constitutional  right  of  an  at- 
torney is  infringed  by  a  statute  requiring 
him  to  prosecute  disbarment  proceedings 
by  direction  of  the  court  without  fees. 
Brown  v.  Warren  County.  42:  527,  135  N. 
W.  4,  137  N.  W.  474,  156' Iowa,  20. 

( .-annotated) 

52.  An  attorney  who  compromises  his 
client's  case  against  the  latter's  express 
direction  is  not  entitled  to  any  compensa- 
tion. Rogers  v.  Pettigrew,  42:  852,  75  S. 
E.  631,  138  Ga.  528.  (Annotated) 

53.  An  attorney  who  impliedly  debars 
himself,  under  the  terms  of  a  general  re- 
tainer, from  employment  by  others  whose 
interests  are  antagonistic  to  those  of  his 
clients,  may  recover  a  retaining  fee  in  a 
suit  for  services  rendered  under  such  general 
employment.  Mellon  v.  Fulton,  19:  960,  98 
Pac.  911,  22  Okla.  636.  (Annotated) 

54.  In  the  absence  of  a  contract,  ex- 
press or  implied,  between  attorney  and 
client,  fixing  the  stipulated  percentage 
which  the  payee  is  entitled  to  recover  from 
the  payor,  in  case  of  default  and  the  pla- 
cing 9f  the  note  in  the  hands  of  an  attor- 
ney for  collection,  as  the  compensation 
which  the  attorney  is  to  receive,  the  attor- 
ney is  entitled  to  recover  from  his  client 
only  the  reasonable  value  of  his  services. 
Rogers  v.  Kemp  Lumber  Co.  31:594,  137 
Pac.  586,  18  N.  M.  300.  (Annotated) 

55.  Only  a  reasonable  compensation  for 
attorney's  services  can  be  charged  against 
a  fund  recovered  in  a  stockholders'  action 
for  the  benefit  of  a  corporation  which  has 
itself  refused  to  sue,  in  the  fixing  of  which 
the  contingency  of  success  or  failure  cannot 
be  taken  into  consideration.  Graham  v. 
Dubuque  Specialty  Mach.  Works,  15:  729, 
114  N.  W.  619,  138  Iowa,  456.     (Annotated) 

56.  The  skill,  experience,  and  standing  of 
an  attorney  in  a  stockholders'  action  to 
reach  a  fund  for  the  corporation,  where  a 
transaction  showing  want  of  fidelity  in 
trust  relations  must  be  unmasked  and  con 
duct  inconsistent  with  business  integrity  lie 
proven  in  order  to  succeed,  together  with 
the  prominence  of  the  defendants,  should 
be  taken  into  consideration  in  estimating 
the  value  of  legal  services  rendered  therein. 
Graham  v.  Dubuque  Specialty  Mach.  Works, 
15:  729,  114  N.  W.  619,  138  Iowa,  456. 

57.  Two  thousand  five  hundred  dollars  is 
a  reasonable  compensation  for  attorney's 
ser.vices  in  the  recovery  of  about  $9,000  of 
misappropriated  trust  funds  for  the  benefit 
of  a  corporation,  in  a  litigation  extending 
over  several  years,  from  defendants  prom- 
inent in  the  community,  the  attorney  being 
a  lawyer  of  learning  and  distinction  in  eqni 
ty  jurisprudence,  of  fifty  years'  experience. 
Graham  v.  Dubuque  Specialtv  Mach.  Works, 
15:  729,  114  N.  W.  619.  138  Iowa,  456. 

58.  A  fee  of  $2,471  for  simply  negotiating 
an  annulment  of  a  marriage  and  settle- 
ment of  the  amount  of  alimony,  nothing  but 


ATTORNEYS,  II.  c,  2. 


209 


a  formal  trial  being  contemplated,  is  grossly 
exafcssive;    and  a  motion  to  require  the  at- 
torney to  refund  $2,000  of  this  sum  should 
be  granted.      Donaldson   v.   Eaton,   14:  1168, 
114  N.  W.   19,  136  Iowa.  fioO. 
Of  attorney   app6inted  to   defend  in- 
digent prisoner. 
Recovery  against  counties  of  fees  by  covm- 
S£l   appointed   by  court  to  defend  per- 
son   accused    of    crime,    see    Counties, 
16-18,  29. 

59.  Constitutional  provisions  entitling  a 
p"'-son  accused  of  crime  to  appear  by  coun- 
sel, and  forbidding  tlie  taking  of  property 
for  public  use  without  compensation,  or  the 
taking  of  liberty  or  property  without  due 
process  at  law,  do  not  entitle  a  person  des- 
ignated by  the  court  to  defend  an  indigent 
prisoner,  to  recover  compensation  for  his 
services  from  the  public.  Pardee  v.  Salt 
Lake  Coimty,  36:377,  118  Pac.  122,  39 
Utah,  482.  (Annotated) 
Contract  for  contingent  fee. 
Agreement  of  woman  to  share  alimony  with 

attorney,  see  Appeal  axd  Errok.  439; 
Contracts,  466. 

Champertous  agreemen«t  for,  see  Champerty 
AND  Maintenance,  7. 

Parol  contract  for,  see  Contracts,  254,  328. 

Partial  invalidity  of  contract  as  to,  see  Con- 
tracts, 409l 

Public    policy    as   to,    see    Contracts,   468, 
467,  470,  516. 

Recovery  on  quantum  meruit  where  con- 
tract for  contingent  fee  is  void,  see" 
Contracts,  611,  612. 

See  also  infra,  76,  78,  81-,  83-86. 

60.  It  is  not  illegal  or  against  public 
policy  for  a  lawyer  to  prosecute  an  action 
for  a  client  who  is  unable  to  pay  for  his 
services,  or  to  contract  with  a  client  for 
compensation  to  be  paid  out  of  the  amount 
recovered,  and  contingent  upon  recovery. 
Stevens  v.  SheriflF,  11:  1153,  90  Pac.  799,  76 
Kan.   124. 

61.  An  attorney  is  estopped  from  claim- 
ing his  contingent  fee  by  bringing  the  ac- 
tion in  a  jurisdiction  where  the  statutes 
provide  for  the  awarding  of  attorneys'  fees 
by  arbitration,  and  seeking  and  accepting 
the  benefit  of  such  provision.  Plummer  v. 
Great  Northern  R.  Co.  31:1215,  110  Pac. 
989,  60  Wash.  214. 

62.  The  deatli  before  trial  or  final  settle- 
ment of  the  case,  of  an  attorney  who  has 
taken  a  case  on  a  contingent  fee,  terminates 
his  right  to  compensation  under  the  con- 
tract, although  his  services  result  in  a 
settlement  of  the  action  and  payment  of  a 
substantial  amount  to  his  client,  and 
limits  recovery  by  his  estate  to  the  reason- 
able value  of  his  services  onlv.  Sargent  v. 
McLeod,  52:  380,  103  N.  E.  164,  209  N.  Y. 
360.  (Annotated) 
Bights    on    death    of    one    member    of 

firm. 

63.  The  death  pending  appeal,  of  one  of 


firmed,  without  allowance  to  the  successors 
for  their  labor  in  the  appellate  court.  Sen- 
neff  v.  Healy,  39:  219,  135  N.  W.  27,  155 
Iowa,  82. 

2.  Lien  for;  riffhts  in  fund  or  property. 

(See   also    same   heading   in   Digest   L.R.A. 

1-10.) 

Statute  as  to  attorneys'  liens  as  restricting 
right  of  contract,  see  Constitutional 
Law,  457. 

Estoppel  to  compel  delivery  of  documents 
on  which  lien  is  claimed,  see  Estoppel, 
199. 

Injunction  against  enforcement  of  lien 
against  judgment,   see  Injunction,   6. 

Interpleader  to  determine  respective  rights 
of  judgment  creditor  and  attorney 
claiming  lien  on  judgment,  see  Inter- 
pleader, 7. 

Right  to  jury  in  proceeding  to  enforce  at- 
torney's lien,  see  Jury,  3. 

Special  legislation  as  to,  see  Statutes,  164. 

See  also  infra,  87,  88.  • 

64.  Where  securities  are  given  by  a 
client  to  a  solicitor  to  secure  the  payment 
of  particular  costs,  the  solicitor's  general 
line  is  unaffected.  Re  Morris,  2  B.  R.  C. 
46,  [1908]  1  K.  B.  473.  Also  Reported  in 
77  L.  J.  K.  B.  N.  S.  265,  98  L.  T.  N.  S.  500. 

65.  Where  a  solicitor  takes  any  secur- 
ity for  his  general  costs  which  is  inconsis- 
tent with  the  retention  of  his  general  lien, 
as  where  he  takes  security  upon  property 
already  included  in  the  lien,  or  a  security 
which  gives  time,  or  which  gives  him  a 
right  to  interest  which  would  not  otherwise 
be  payable,  his  lien  is  gone  unless  he  gives 
the  client  express  notice  of  his  intention 
to  retain  it.  Re  Morris,  2  B.  R.  C.  46, 
[1908]  1  K.  B.  473.  Also  Reported  in  77 
L.  J.  K.  B.  N.  S.  265,  98  L.  T.  N.  S.  500. 

( Annotated ) 

66.  A  statute  giving  an  attorney  a  lien 
upon  money  in  the  hands  of  the  adverse 
party  in  an  action  or  proceeding  in  which 
the  attorney  was  employed,  from  the  time 
of  giving  notice  thereof,  applies  only  to 
proceedings  in  the  local  courts.  Plummer 
v.  Great  Northern  R.  Co.  31:  1215,  110  Pac. 
989,  60  Wash.  214.  (Annotated) 

67.  No  equitable  lien  upon  the  fund 
arises  in  favor  of  an  attorney  who  under- 
takes to  protect  his  client's  interest  under 
a  will  for  a  percentage  of  the  value  of  the 
property  recovered.  De  Winter  v.  Thomas, 
27:  634,  34  App.  D.  C.  80.  (Annotated) 

68.  An  attorney,  who  is  employed  by 
the  mother  of  an  illegitimate  child  to  as- 
sist in  the  prosecution  of  bastardy  pro- 
ceedings, under  a  contract  by  which  he  is 
to  be  paid  an  attorney's  fee  out  of  the  fund 
recovered,  is  entitled  to  a  lien  upon  such 
fund    for    his    fees.      Costigan    v.    Stewart, 


several  attornevs  who  have  agreed  to  share  |  '11:  630,  91  Pac.  83,  76  Kan.  353. 


a  contingent  fee  to  be  earned  by  the  success- 
ful prosecution  of  a  suit,  will  not  deprive 
his  estate  of  his  share  of  the  fee  in  case 
the  judgment  in  favor  of  their  client  is  af 
Digest  1-52  I..R.A.(N.S.) 


(Annotated) 

69.  Under  a  statute  giving  an  attorney 

a  lien  for   his   services   upon   money  of  his 

client  which  comes  into  court  because  of  the 


14 


210 


ATTOKKEYS,  U.  c,  2. 


litigation,  no  part  of  such  money  can  be 
withdrawn  by  the  client,  where  an  agree- 
ment for  percentage  compensation  has  been 
declared  invalid,  until  tiie  true  value  of  the 
services  has  been  ascertained  by  a  reference. 
Re  Snyder,  14:  iioi,  82  N.  E.  742,  100  N.  Y. 
66. 

70.  Under  a  statute  giving  an  attorney 
a  lien  on  the  judgment  from  the  time  of 
tiling  notice  thereof,  an  assignment  of  the 
judgment  in  good  faith  and  without  col- 
lusion, before  the  lien  is  filed,  frees  the 
judgment  from  liability  to  the  lien.  Hump- 
tulips  Driving  Co.  v.  Burrows,  37:  226,  I18 
Pac.  827,  65  Wash.  636. 

71.  Money  paid  to  a  litigant  in  settle- 
ment of  a  claim  is  recovered,  within  the 
meaning  of  a  statute  giving  an  attorneys' 
lien,  ytandidge  v.  Chicago  R.  Co.  40:  529, 
98   N.    E.    963,   254   111.    524. 

72.  An  attorney  in  whose  name  stock  is 
placed  under  £lie  express  agreement  that  he 
would  indorse  and  turn  it  over  to  his  client 
cannpt  hold  it  to  compel  a  settlement  of 
his  claim  against  the  client;  at  least  when, 
to  his  knowledge,  the  ^stock  belongs  to  a 
stranger.  Lindsley  v.  Caldwell,  37:  i6i,  137 
S.  W.  983,  234  Mo.  498. 

73.  An  attorney  waives  his  right  to  a 
statutory  lien  for  his  fees  where  he  con- 
tracts to  take  a  conveyance  of  land  for  his 
fee,  and  gives  no  notice  of  intention  to  claim 
a  lien  under  the  statute.  Stearns  v.  Wol- 
lenberg,  14:  1095,  92  Pac.  1079,  51  Or.  88. 

74.  Courts  of  law  as  well  as  of  equity 
have  jurisdiction  to  enforce  attorneys'  liens, 
under  a  statute  providing  that  any  court 
of  competent  jurisdiction  shall,  on  petition, 
adjudicate  the  rights  of  the  parties  and 
enforce  the  lien.  Standidge  v.  Chicago  R. 
Co.  40:  529,  98  N.  E.  963,  254*  111.  524. 

75.  A  statute  permitting  attorneys' 
liens  to  be  enforced  in  any  court  of  com- 
petent jurisdiction,  by  petition  filed  in  the 
cause  of  the  client  wherein  the  employment 
is  made,  does  not  violate  a  constitutional 
requirement  of  uniform  procedure.  Stand- 
idge V.  Chicago  R.  Co.  40:  529,  98  N.  E. 
963,  254  111.  524. 

Settlement   or   dismissal  of  action  by 

client. 
Remedy  in  case  of  fraudulent  attempt  to 

dismiss  suit  to  deprive  of,  see  Action 

OR  Suit,  4. 
Intent  to  deprive  attorney  of  compensation 

by  dismissal  of   action,  see   Pleading, 

390. 
Contract   forbidding  client   to   settle   claim 

without  consent  of  attorney,  see  Con- 
tracts, 409,  467-470,  612,. 
See  also  Dismissal  or  Discontinuance,  7. 

76.  A  client  may,  if  he  acts  in  good 
faith,  settle  his  claim  without  consulting 
his  attorney,  although,  by  the  agreement 
between  them,  the  attorney  is  to  receive 
as  a  contingent  fee  for  his  services  a  por- 
tion of  the  sum  recovered.  Plummer  v. 
Great  Nortiiern  R.  Co.  31:  1215,  110  Pac. 
989,  60  Wash.  214. 

77.  The  court  may,  for  the  protection  of 
its  officer,  set  aside  a  collusive  settlement 
of  a  suit  consummated  pursuant  to  the 
Digest   1-52  i:<.R.A.(N.S.) 


I  intent  of  both  parties  to  defraud  the  at-  . 
torney  out  of  his  compensation,  and  permit 
iiim  to  proceed  in  the  case  in  the  namei^of 
his  client  to  final  determination,  and  ascer- 
tain what  is  due  him  for  his  services  wlien 
fully  performed.  Jackson  v.  Stearns,  5:  390, 
84  Pac.  798,  48  Or.  25.  (Annotated) 

78.  Under  a  written  contract  made  be- 
tween one  claiming  a  right  ol  action 
against  a  railroad  company  for  damages  for 
personal  injuries,  and  an  attorney  at  law, 
wiicreby  the  latter  is  to  bring  suit  in  the 
name   ef  the   former,  and   pay  all   the  ex- 

j  penses  of  prosecuting  it,  and  is  to  receive 
half  the  amount  recovered,  after  deducting 
the  expenses,  the  attorney  has  no  lien  upon 
the  cause  of  action,  and  is  not  an  equitable 
assignee  of  an  interest  therein,  and  the 
claimant  has  the  legal  right  to  compromise  ^ 
the  claim  and  dismiss  the  action  without 
the  consent  of  the  attorney,  and  the  latter 
is  not  entitled  to  contmue  the  action  to 
protect  his  interests.  Boogren  v.  St.  Paul 
City  R.  Co.  3:  379,  106  N.  W.  104,  97  Minn. 
51.  (Annotated) 

79.  An  oral  agreement  by  one  suing  to 
cancel  a  satisfied  mortgage  as  a  cloud  on 
his  title,  to  transfer  to  his  attorney  a  por- 
tion of  the  property  in  case  of  success  in 
the  suit,  conlers  u]K)n  the  attorney  no  right 
in  the  cause  of  action  which  the  court  can 
protect;  and  it  will  not,  therefore,  if  ^le 
attorney  has  failed  to  take  the  proper  steps 
to  perfect  his  statutory  lien,  set  aside,  upon 
his  motion,  a  dismissal  of  the  action  bj' 
agreement  of  the  parties  to  defraud  him  of 
his  fee,  although  plaintiff  has  transferred 
the  property  to  defendant,  and  has  thereby 
put  it  out  of  his  power  to  comply  with  his 
contract.  Stearns  v.  Wollenberg,  14:  1095, 
92  Pac.   1079,  51  Or.  88.  (Annotated) 

80.  An  attorney  has  no  charging  lien 
for  services  upon  his  client's  right  of  action 
for  assault  and  battery  and  false  imprison- 
ment before  judgment,  which  will  prevent 
the  client  from  settling  the  case  against  his 
will.  Tvler  v.  Superior  Court,  23:  1045,  73 
Atl.  467^  30  R.  I.  107. 

81.  Where  an  action  for  personal  in- 
juries, in  whic  .  an  attorney  was  employed 
under  a  contract  by  which  he  was  to  re- 
ceive one  half  of  any  recovery,  aiter  pay- 
ment of  certain  expenses,  was  settled  by 
the  client  without  the  knowledge  or  consent 
of  the  attorney,  such  attorney  cannot  bring 
suit  in  the  name  of  his  client  for  the  pur- 
pose of  recovering  his  fee,  although  the  de- 
fendant made  the  settlement  after  notice 
of  the  contract  between  the  attorney  and 
his  client.  Winslow  Brothers  Co.  v. 
Murphy,  45:  750,  77  S.  E.  25,  139  Ga.  231. 

(Annotated) 

82.  Parties  to  a  suit  who,  although  not 
primarily  liable  thereon,  bring  about  a  set- 
tlement of  the  case  without  consent  of  the 
plaintiflFs'  attorneys,  are  liable  jointly  with 
the  primary  debtor  for  the  fees  of  which  the 
plaintiffs'  attorneys  are  thereby  deprived. 
Ingersoll  v.  Coal  Creek  Coal  Co.  9:  282,  98 
S.  W.  178,  117  Tenn.  263, 

83.  A  defendant  who  settles  an  actioB 
after  the  death  of  plaintiff's  attorney,  who 


ATTORNEYS,   II.   d— ATTORNMENT. 


211 


had  taken  it  upon  a  contingent  fee,  is  liable 
under  the  statute  securing  tlie  attorney  a 
lien  on  the  cause  of  action  for  his  services, 
not  for  the  amount  of  the  contingent  fee, 
but  for  the  reasonable  value,  of  the  services 
rendered.  Sargent  v.  McLeod,  52:  380,  103 
N.  E.  164,  209  N.  Y.  360. 

84.  An  attorney  entitled  by  contract  to 
50  per  cent  of  the  amount  recovered  by  his 
client  for  injuries)  negligently  inflicted  on 
him  can  recover  from  defendant  only  one 
half  the  amount  paid  his  client,  in  case  of 
a  compromise  of  the  action  by  an  agree- 
ment to  pay  the  clie:^t  a  certain  amount 
and  the  attorney's  fee.  Schmitz  v.  South 
Covington  &  C.  Street  R.  Co.  22:  776,  114 
S.  W.  1197,  131  Ky.  207.  (Annotated) 

85.  The  defendant  in  an  action  is  not  pre- 
vented from  questioning  the  legality  of  a 
contract  between  plaintiils  and  their  attor- 
neys as  to  the  fees  on  the  ground  that  lie  is 
not  a  party  thereto,  where  he  is  sought  to  be 
held  for  the  fees  because  of  having  effected 
;i  compromise  of  the  suit  without  consent  of 
the  plaintiffs'  attornejs.  IngersoU  v.  Coal 
Creek  Coal  Co.  9:  282,  98  S.  W.  178,  117 
Tenn.  263. 

80.  The  illegality  of  a  contract  for  a 
contingent  attorney's  fee,  arising  from  a 
stipulation  that  the  client  shall  not  com- 
promise or  settle  his  claim  without  the  con- 
sent of  the  attorney,  is  available  as  a  de- 
fense in  an  action  against  a  third  party, 
based  on  the  contract.  Davy  v.  Fidelity  & 
C.  Ins.  Co.  17:  443,  85  N.  E.  504,  78  Ohio 
St.  256. 

d.  Summary  proceedings. 


(See   also   same   heading    in  Digest  L.R.A. 
1-10.) 

87.  One  cannot  secure  a  summary  order 
for  the  delivery  by  an  attorney  not  em- 
ployed by  him,  of  papers  upon  which  the 
attorney  claims  a  lien  for  services,  by  offer- 
ing to  pay  what  is  due  the  attorney  under 
an  employment  by  another  litigant.  Re 
Niagara,  L.  &  0.  Power  Co.  38:  207,  97  N. 
E.  33,  203  N.  Y.  493. 

88.  One  not  entitled  to  maintain  sum- 
mary proceedings  to  compel  an  attorney  to 
deliver  papers  upon  which  he  claims  a  lien 
for  services  cannot  succeed  upon  tlie  ground 
that  the  retention  of  tlie  papers  by  the  at- 
torney is  improper.  Re  Niagara,  L.  &  0. 
Power  Co.  38:  207,  97  N.  E.  33,  203  N.  Y. 
493. 

///.   Rem,edies  against;   motions. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 


ATTORNEYS'  FEES. 

[This  title  includes  only  the  nvatter 
of  attorneys'  fees  added  to  a  recovery  upon  | 


'  the  instrument  creating  the  liability.  For 
the  right  of  an  attorney  to  recover  fees 
from  his  own  client,  see  Attorneys,  II.  c. 
For  an  allowance  for  attorneys  as  an  ele- 
ment of  costs  or  damages,  without  any  stip- 
ulation therefor,  see  Costs  and  Fees,  23- 
32;   Damages,  III.  r.] 

Provision  for,  in  note  as  measure  of  at- 
torney's compensation  for  collecting 
note,  see  Attorneys,  54. 

Effect  of  provision  for,  in  mortgage  on  ne- 
gotiable note  secured  thereby,  see 
Bills  and  Notes,  02,  63. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  II.  a,  6. 

Including  attorneys'  fees  in  determining 
amount  in  controversy,  see  Courts, 
236,  237. 

As  part  of  statutory  penalty,  see  Penal- 
ties, 3. 

Effect  of  provision  for,  on  negotiability  of 
note,  see  Statutes,  334. 

1.  One  foreclosing  a  mortgage  is  not 
entitled  to  attorneys'  fees  under  a  provision 
thereof  that  upon  foreclosure  a  specified 
sum  may  be  recovered  as  attorneys'  fees, 
which  sum  was  stipulated  as  reasonable, 
unless  he  proves  that  he  agreed  to  pay  his 
counsel  a  fixed  sum  for  his  services,  and  the 
reasonableness  thereof,  or  what  would  be  a 
reasonable  fee  in  such  action,  as  in  such 
case  there  is  nothing  upon  which  to  base  a 
finding  as  to  fees,  notwithstanding  the 
validity  of  the  prpvision  therefor.  Porter 
v.  Mojiarch,  27:  iii,  106  Pac.  299,  17  Idaho, 
364. 

2.  Upon  foreclosure  of  a  deed  of  trust 
which  provides  for  the  discharge  of  the 
debt  evidenced  by  a  certain  promissory  note 
and  the  interest  thereon  according  to  the 
tenor  thereof,  both  of  which  instruments 
were  executed  at  the  same  time,  by  the  same 
parties,  and  in  furtherance  of  the  same  pur- 
pose, attorneys'  fees  should  be  allowed  as 
provided  in  the  note  although  the  trust 
deed  itself  does  not  expressly  provide  there- 
for. Armijo  v.  Henry,  25;  275,  89  Pac.  305, 
14  N.  M.   181. 

3.  A  guarantor  of  a  note  which  he  is 
compelled  to  pay  is  not  entitled  to  the  ben- 
efit of  a  provision  in  the  note  for  payment 
of  attorneys'  fees  in  an  action  against  an 
accommodation  maker,  although  the  stat- 
ute provides  that  when  the  instrument  is 
paid  by  a  person  secondarily  liable,  it  is 
not  discharged,  but  the  party  by  paying  is 
remitted  to  his  former  rights  as  regards 
all  prior  parties.  Noble  v.  Beeman-Spauld- 
ing- Woodward  Co.  46:  162,  131  Pac.  1006,  65 
Or.  95. 


ATTORNMENT. 


Sufficiency  of  evidence  to  show  reason  for 
attornment  to  stranger,  see  Evidence, 
2279. • 


an  obligation  by  virtue  of  a  stipulation  ia  '  To   avoid   eviction,   see   Garnishment,    11. 
Digest   1-52  Ii.R.A.(N.S.)  rf  //./    ii.  . 


212 


ATTRACTIVE    NUISANCE— AUDITOR. 


ATTRACTIVE    NUISANCE. 

Doctrine  of,  soc  ^Iimcipai.  Corpobations, 

325,  341-344;  Negligence,  I.  c.  2,  b. 
Question  for  jury  as  to,  see  Trial,  548,  549. 


AUCTIONS. 


Assumpsit  by  bidder  to  recover  money  paid, 

see  Assumpsit,  18. 
Duty  of  clerk  to  return  bid  upon  rescission 

of   sale  as   obligation   to  pay   debt    of 

another,  see  Contbacts,  222.  "^ 

Validity     of     contract     under     statute     of 

frauds,  see  Contbacts,  299,  303,  306. 
Record  of,  as  evidence,  see  Evidence,  847. 
License  of  auctioneer,  see  License,  23,  123. 
Laches  as  precluding  relief  of  unsuccessful 

bidder  at  judicial  sale,  see  Limitation 

OF  Actions,  23. 
Auction  sale  as  lottery,  see  Lottery,  10. 
As  nuisance,  see  Nuisances,   11. 
Liability    of    auctioneer    to    purchaser,    see 

Principal  and  Agent,   111. 

1.  The  officer  in  charge  of  an  auction 
sale  of  county  property  has  discretion  to  re- 
fuse to  accept  bids,  so  that  the  highest  bid- 
der cannot  enforce  a  right  to  the  properly 
where  his  bid  is  not  accepted.  McPherson 
Bros.  Co.  V.  Okanogan  County,  g:  748,  88 
Pac.  199,  46  Wash.  285. 

2.  A  bidder  at  a  public  auction  may 
withdraw  his  offer  to  pu-rchase,  or  the  own- 
er his  oflTer  to  sell,  at  any  time  before  the 
bid  is  accepted  by  the  fall  of  the  hammer. 
Anderson  v.  Wisconsin  C.  R.  Co.  20:  1133, 
120  N.  W.  39,  107  Minn.  296. 

3.  A  bid  for  property  at  a  public  auction 
is  merely  an  offer  to  purchase  at  the  price 
named,  and  no  contractual  relation  arises 
until  acceptance  of  the  bid.  Anderson  v. 
Wisconsin  C.  R.  Co.  20:  11 33,  120  N.  W.  39, 
107  Minn.  296. 

4.  An  announcement  or  advertisement 
that  certain  property  will  be  sold  at  public 
auction  to  the  highest  bidder  is  not  an  of- 
fer to  sell  which  becomes  binding,  even  con- 
ditionally, on  the  owner  when  a  bid  is  made, 
but  is  a  mere  declaration  of  an  intention  to 
hold  an  auction  at  which  bids  will  be  re- 
ceived. Anderson  v.  Wisconsin  C.  R.  Co. 
20:  1133,  120  N.  W.  39,  107  Minn.  296. 

(Annotated) 

5.  Conditions  of  sale  announced  by  the 
auctioneer  sapersede  those  incorporated  in 
circulars  distributed  among  prospective  bid- 
ders at  an  auction  sale,  and  bind  one  to 
whom  the  property  is  struck  off,  although 
they  were  not  brought  to  his  attention. 
Kennell  v.  Boyer,  24:  488,  122  N.  W;  941, 
144  Iowa,  303.  (Annotated) 

6.  A  notice  at  an  auction  sale  of  lots 
in  a  residence  tract,  that  the  property  is 
restricted  as  to  buildings  and  against  nui- 
sances, does  not  give  fair  notice  to  bidders 
of  a  provision  which,  after  restricting  the 
property,  character  of  buildings,  and  usages 
which  may  be  made  of  the  property,  em- 
powers the  grantor  or  his  assignees  to 
xiigest  1-52  I^R.A.(N.S.) 


annul  any  restriction  at  pleasure  in  favor 
of  any  lot  owner.  Sohns  v.  Beavis,  34: 
927,  93  N.  E.  935,  200  N.  Y.  268. 

7.  One  who  has  hid  in  a  lot  at  an  auc- 
tion sale,  and  who  signs  the  terms  of  sale 
witli  notice  merely  of  restrict! on.s  as  to 
buildings  and  against  nuisances,  under  the 
assurance  that  they  are  all  riglit,  has  a 
reasonable  time  to  investigate  their  char- 
acter if  they  are  so  vinreasonablc'  and  un- 
precedented as  to  make  the  title  unmarket- 
able. Sohns  V.  Beavis,  34:  927,  93  N.  E. 
935,  200  N.  Y.  268. 

8.  One  who,  liaving  bid  in  a  lot  in  a 
tract  of  land  at  an  auction  sale,  signs  the 
terms  of  sale  with  notice  nrerely  that  there 
are  restrictions  as  to  buildings  and  against 
nuisances,  which  upon  investigation  prove 
to  be  so  unreasonable  and  unpiecedented  as 
to  make  the  title  unmarketable,  may  re- 
cover the  amount  paid  down  and  the  rea- 
sonable expenses  incurred  in  investigating 
the  title.  Sohns  v.  Beavis,  34:  927,  93  N. 
E.  935,  200  N.  Y.  268.  (Annotated) 

9.  A  bidder  at  an  auction  sale  who, 
upon  acceptance  of  his  bid,  receives  from 
tlie  auctioneer  a  written  contract  of  sale, 
is  not  bound  by  the  terms  of  a  memorandum 
in  the  auctioneer's  book  describing  the  true 
owner  of  the  property,  made  for  the  pur- 
pose of  satisfying  the  statute  of  frauds  and 
charging  him  upon  the  contract.  Meyer  v. 
Redmond,  41 :  675,  98  N.  E.  906,  205  N.  Y, 
478. 

10.  An  auctioneer  has  authority  to  sign 
the  bidder's  name  to  a  memorandum  of 
sale,  so  as  to  make  a  binding  contract  un- 
der tlie  statute  of  frauds.  Love  v.  Harris, 
36:  927,  72  S.  E.   150,  156  N.   C.  88. 


AUDITA  QUERELA. 

1.  The  remedy  afforded  by  the  common- 
law  writ  of  audita  querela  exists  in  Kansas 
only  in  such  cases  as  fall  within  Gen.  Stat. 
1901,  §§  5054,  5056,  which  provide  upon 
what  grounds  a  judgment  may  be  vacated 
or  modified  at  or  after  the  term  at  which 
it  was  rendered  and  the  method  of  proce- 
dure. Electric  Plaster  Co.  v.  Blue  Rapids 
City  Twp.  25:  1237,  106  Pac.  1079,  81  Kan. 
730. 

2.  There  is  no  necessity  for  an  audita 
querela  to  vacate  a  void  judgment  and  the 
execution  thereon.  French  v.  White,  2: 
804,  62  Atl.  35,  78  Vt.  89. 


AUBITOR 


Expert  accountants,  see  Accountants. 

Allowance  of  amendment  of  defective  ex- 
ception to  report  of;  time  for,  see  Ap- 
peal and  Error,  338. 

Taxing  entire  fee  of,  against  one  party, 
see  Appeal  and  Error,  575;  Costs  and 
Fees,  17. 

Bond  of  county  auditor,  see  Bonds,  45,  46, 
48.. 


AUTHENTICATION— AUTOMOBILES. 


213 


Mandamus    to   state    auditor,    see    Courts,  .  AUTOMATIC  FIRE  EXTINGUISHER. 

133,  228. 
Injunction    against,  state    auditor,    see    In-  !  Insurance   against    loss   by    accidental    dis- 

JUNCTION,  332.  charge  of,  see  Insurance,  685. 

Negligence  of  county  auditor  in  failing  to 

give  notice  of  tax  sale,  see  Taxes,  191, 

238 

AUTOMATIC  MOVEMENTS. 

Opinion    evidence    as    to    danger    from,    see 
Evidence,  1087,  1088. 
AUTHENTICATION.  Duty  to  warn  servant  of  danger  from,   see 

Master  and  Servant,  235. 
Of  bill   of  exceptions,  see  Appeal  and  Er- 
ror, 253. 
Of  document  offered  in   evidence,   see  Evi- 
dence, 738,  739. 


AUTHOR. 

Right  of,  to  royalties  upon  sales  made  by 
publisher's  trustee  in  bankruptcy,  see 
Bankruptcy,  118. 

Conflict  of  laws  as  to  rights  of,  see  Con- 
flict  OF  Laws,   108. 

Who  is  the  "author"  within  meaning  of 
copyright  laws,  see  Copyright,  5,  6. 

of,  to  enjoin  publication  of  text-book, 
see  Injunction,  99. 

Common-law  rights  of,  see  Literary  and 
Artistic  Property. 


C<J 

"Right 


AUTHORITY. 


Of  attorney,  see  Attorneys,  II.  b. 

Of  officer  or  agent  of  bank,  see  Banks,  III. 

b. 
Of  servant,  see  Master  and  Servant,  III. 

a,  2. 
Of    agent,    see    Principal   and   Agent,    II. 
From  legislature  to  maintain  nuisance,  see 

Nuisances,  189-203. 
Presumption  of,  see  Evidence,  II.  e,  4. 
Evidence  as  to,  see  Evidence,  XI.  x. 
Sufficiency  of  proof  of,  see  Evidence,  2226, 

2227. 
Ab  question  for  jury,  see  Trial,  103,  248, 

309-311. 

♦*-♦ 


AUTOMATIC  COIN  COLLECTOR. 

Use  of,  on  street  cars,  see  CARRiBats,  645- 
647. 


AUTOMATIC  COUPLERS. 

Master's  duty  as  to,  see  Master  and  Serv- 
ant, 424. 

Violation  of  Federal  statute  requiring  use 
of,  see  Removal  of  Causes,  2. 

Dieest  1-52  L.R.A.(N.S.) 


AUTOMATIC  SPRINKLERS. 

Injunction  to  prevent  enforcement  of  un- 
reasonable rate  for  supply  to,  see  In- 
jtJNCTION,    219. 

Provision  in  insurance  policy  as  to  main- 
taining,   see    Insuraijce,    243,   244. 

Liability  of  insurer  against  leakage  from, 
see  Insurance,  675. 

Charge  for  connecting  with  water  mains, 
see  Waters,  408,  422. 


AUTOMATIC     VENDING     MACHINE. 

License  tax  on,  see  License,  87. 


AUTOMOBILES. 


J.  Public  regulation  and  control,  1—9. 
II.  Negligence  as  to;  injuries  by,    10— 
72. 

a.  Negligence    of   person    operat- 

ing, 10—57. 

b.  Contributory    negligence,    5S— 

72. 

Right  to  recover  for  negligent  injury  to 
unlicensed  automobile,  see  Action  or 
Suit,  38. 

Liability  of  garage  keeper  for  injury  to  ma- 
chine, see  Bailment,  18-22;  Master 
AND  Servant,  878,  914-918. 

Estoppel  to  introdute  evidence  as  to  value 
of  injured  machine,  see  Estoppel,  200. 

Evidence  of  costs  of  repairs  to  automobile 
in  action  for  injury  thereto,  see  Evi- 
dence, 2438. 

Liability  for  injury  to,  by  defect  in  high- 
way, see  Evidence,  298;  Highways 
184-186,  236. 

Destruction  of,  at  railroad  crossing,  see 
Negligence,  294. 

Effect  of  contributory  negligence  on  dam- 
ages for  destruction  of  automobile  at 
railroad  crossing,  see  Damages,  448. 

Reckless  injury  to,  as  malicious  mischief, 
see  Malicious  Mischief,  6. 

Indictment  for  malicious  injury  to,  see  In- 
dictment, etc.,  60. 

Defense  to  note  given  to  secjire  release  of 
attachment  for  repair  bill,  see  Bills 
AND  Notes,  217. 


214 


AUTOMOBILES,  I. 


Compromise  of  dispute  as  to  amount  of  bill 
for  repairs,  see  Compromise  and  Sbtt- 

TLEMENT,  5. 

Erection  of  garage  as  breach  of  covenant, 

see    Covenants    and    Conditions,    49, 

78-80. 
Agreement    of    persons    to    take    and    use 

wrbngfully  as  conspiracy',  see  Conspib- 

ACY,   9. 
Damages  for  breach  of  contract  to  perform 

services  as  automobile  sales  agent,  see 

Damages,  225. 
Presumption  as  to  ownership  of,  see  Evi- 
dence, 613. 
Admissibility  of  evidence  under  answer  in 

action  by  hirer  of  taxicab  for  injuries, 

see  Evidence,  2456. 
Exemption  of  automobile,  see  Exemptions, 

•16,  17. 
Conveyance   of,   in   fraud   of   creditors,   see 

Fraudulent   Conveyances,   45. 
One  using  gas  engine  to  generate  electricity 

for   charging,   as   a  manufacturer,   see 

Gas,  15. 
Duty  to  keep  highway  safe  for,  see  High- 
ways, 184-186,  236. 
Contributory  negligence  of  one  driving  on 

defective  highway,  see  Highways,  372, 

373. 
Double    indemnity   under    policy   to   person 

injured  in  taxicab,  see  Insukance,  803. 
Insurance  against  injury  to  or  by,  see  In- 
surance, 676-678,  940-943. 
Garnishment   of   amount   due   under   policy 

insuring    against    liability    for    injury, 

see  Garnishment,  23. 
Lessor's  liability  for  injury  by  vibrations 

from    conducting    automobile    business 

in  other  portion  of  building,  see  Land- 
-''     lord  and  Tenant,  170. 
Libel  on  chauffeur,  see  Libel  and  Slander, 

35,  96. 
Discharge  of  one  employed  as  assistant  in 

automobile    agency,    see    Master    and 

Servant,  119. 
Liability    of    automobile    manufacturer    for 

injury  to  servant  on  testing  track,  see 

Master  and  Servant,  327. 
Liability  of  proprietor  of  garage  for  acts  of 

servant,  see  Master  and  feERVANT,  877, 

878,   914-918. 
Liability  of  manufacturer  of,  for  injury  due 

to  defects  .in,  see  Negligence,  51-53. 
Notice  to  purchaser  of  defect  in  automobile, 

see  Notice,  9. 
Compensation    of    automobile    sales    agent, 

see  Principal  and  Agent,  116. 
Conditional  sale  of,  see  Sale,  154. 
Injury  to  occupants  of,   at  railroad  cross- 
ing, see  Railroads,  221,  266,  270,  271, 

280,  281. 
Contributory   negligence  of   driver   at   rail- 
road crossing,  see  Railroads,  221,  254, 

255,  266,  280,  281;  Trial,  452. 
Injury   to   occupant    of,   by   collision   with 

street  car,  see   Street  Railways,   56. 
Lease  of,  on  Sunday,  as  defense  to  liability 

for  injury  to  occupant,  see  Sunday,  32. 
Proximate  cause  of  injury  to  occupant  as 

question. for  jury,  see  Trial,   187. 
Unfair  competition  by  imitation  of  lights 

for,  see  Unfair  Competition,  4. 
Digest  1-52  I<.R.A.(N.S.) 


/.  Public  regulation  and  ctnttrol. 

Forbidding  use  of  dangerous  highways  by,, 
as  denial  of  equal  protection,  see  Con- 
stitutional Law,  158. 

Review  by  courts  of  reasonableness  of  act 
regulating,  see  Courts,  91. 

Power  to  require  one  causing  injury  to 
identify  himself,  see  Criminal  Law, 
121. 

Validity  of  excise  tax  on,  see  License,  26, 
27,  77,  78,  107,  108. 

Effect  of  partial  invalidity  of  statute  regu- 
lating, see  Statutes,  73. 

See  also  infra,  24. 

1.  The  law  regulating  the  use  of  auto- 
mobiles alone,  of  all  the  vehicles  which  use 
the  highway,  is  not  invalid  special  legisla- 
tion. State  V.  Swagerty,  lo:  6oi,  102  S.  W. 
483,  203  Mo.  517. 

2.  A  toll  road  owned  and  operated  by 
a  private  corporation  is  a  "public  high- 
way" within  the  meaning  of  a  statute  regu- 
lating the  operation  of  automobiles  upon 
any  public  highway.  Since,  as  the  danger  of 
personal  injury  to  travelers  is  as  great, 
and  immunity  therefrom  is  as  important, 
thereon  as  on  an  ordinary  highway,  it  will 
be  presumed,  in  the  absence  of  express  pro- 
vision, that  the  legislature  contemplated  a 
remedy  as  broad  as  the  mischief  to  be  guard- 
ed against.  Weirich  v.  State,  22:  1221,  121 
N.  W.  652,  140  Wis.  98. 

2a.  A  "public  highway,"  in  the  broad, 
ordinary  sense,  includes  every  common  way 
for  travel  by  persons  on  foot  or  with  vehi- 
cles rightfully  used  on  highways,  which 
the  public  have  the  right  to  use,  either  con- 
ditionally or  unconditionally.  Weirich  v. 
State,  22:  1221,  121  N.  W.  652,  140  Wis. 
98. 

3.  Forbidding  the  use  of  automobiles  on 
highways  constructed  over  deep  ravines  and 
along  the  edges  of  cliffs,  to  protect  the  lives 
of  their  occupants  and  of  those  attempting 
to  use  horses  along  such  roads,  is  reason- 
able. State  V.  Mavo,  26:  502,  75  Atl.  295, 
106  Me.  32.  "  (Annotated) 

4.  Since  the  legislature  might  prohibit 
the  use  <jf  automobiles  on  the  public  high- 
ways, it  may,  without  infringing  tlie  con- 
stitutional provision  that  no  one  shall  be 
compelled  to  be  a  witness  against  himself, 
make  it  a  condition  to  their  use  that  it 
shall  be  a  crime  for  anyone  whose  machine 
causes  injury  to  leave  the  place  of  the  acci- 
dent without  leaving  his  name  and  address 
with  the  person  injured,  or  a  police  officer. 
People  V.  Rosenheimer,  46:  977,  102  N.  E. 
530,  209  N.  Y.  115. 

5.  Charter  authority  to  license  and 
regulate  hackmen,  draymen,  drivers,  and  all 
others  pursuing  like  occupations,  does  not 
empower  a  municipality  to  forbid  children 
under  a  specified  age  to  operate  automobiles 
on  its  streets.  Ex  parte  Epperson,  37:303, 
134  S.  W.  685,  61  Tex.  Crim.  Rep.  237. 
Registration. 

Burden  of  proving  absence  of  r^istratibn, 

see  Evidence,   97. 

Sufficiency  of  evidence  to  show   failure  to 

register,  see  Evidence,  2303.  .„ 

;.  -i    iisaiU 


AUTOMOBILES,  II.  a. 


215 


Effect  of  failure  to  register  on  right  to  re- 
covery for  injury  through  defective 
street,  see  Highways,  ]85,  18G. 

6.  One  operating  an  automobile  on  a 
public  liighway  in  violation  of  a  statute  for- 
bidding the  operation  thereon  of  unregis- 
tered machines  has  no  right  of  action 
against  one  who  injures  it  merely  by  want 
of  ordinary  care.  Dudley  v.  Northampton 
Street  R.  Co.  23:  561,  89  N.  E.  25,  202  Mass. 
443.  (Annotated) 
Speed. 

Effect  of  fast  driving  on  liability  for  injury, 
see  infra,  52. 

Constitutionality  of  statute  limiting  speed 
of,  see  Constitutional  Law,  161. 

Evidence  in  prosecution  for  driving  at  dan- 
gerous speed,  see  Evidence,  1769. 

Sufficiency  of  title  of  act  regulating  speed 
of,  see  Statutes,  110. 

7.  The  question  of  the  reasonableness 
of  a  statute  limiting  the  speed  of  auto- 
mobiles on  the  highways  to  9  miles  an  hour 
is  for  the  legislature,  and  not  the  courts. 
State  v.  Swagerty,  10:  601,  102  S.  W.  483, 
203  Mo.  617. 

Lights. 

8.  An  automobile  standing  at  the  curb 
is  within  the  operation  of  a  statute  requir- 
ing lights  on  automobiles  driven  on  pub- 
lic streets  during  the  hours  of  darkness. 
Jaquith  v.  Worden,  48:  827,  132  Pac.  33, 
73  Wash.  349. 

Unlicensed  person  driving  car. 

Effect  of  failure  to  procure  license  on  lia- 
bility for  injury,  see  infra,  28,  28a. 

V^alidity  of  license  tax  on,  see  License,  26, 
27,  77,  78,  107,  108. 

Contributory  negligence  in  employing  un- 
licensed person  to  operate,  see  Street 
Railways,  56. 

Computation  of  time  during  which  nonresi- 
dent may  operate  automobile  without 
license,  see  Time,  8. 

9.  To  entitle  an  unlicensed  person 
driving  an  automobile  to  the  protection  of 
a  statute  permitting  the  operation  of  the 
machine  by  an  unlicensed  person  if  riding 
with  or  accompanied  by  a  licensed  chauf- 
feur or  operator,  there  must  be  knowledge 
on  the  part  of  both  parties  of  the  exist- 
ence of  a  relation  like  that  of  operator 
without  a  license,  and  licensed  chauffeur  or 
operator  accompanying  him,  but  if  such 
knowledge  exists,  the  operator  will  be  pro- 
tected, although  it  was  not  expected  that 
one  would  exercise  any  supervision  over 
the  other  if  the  operator  was  in  fact  com- 
petent. Bourne  v.  Whitman,  35:  701,  95 
N.  E.  404,  209  Mass.  155. 

//.  Negligence  as  to;  injuries  by. 

o.  Negligence  of  person  operating. 

Objecting  for  first  time  on  appeal  to  lack  of 
parties  in  action  for  injury  by,  see  Ap- 
peal and  Error,  735. 

Review,  on  appeal,  of  finding  as  to  negli- 
gence, see  Appeal  and  Error,  918. 

Prejudicial  error  in  admission  of  evidence, 
see  Appeal  and  Error,  1110,  1191.     , 

Digest  1-52  I..R.A.(N.S.) 


Damages  for  injury  to  pedestrian  by,  see 
Damages,  413,  417. 

Presumption  of  negligence  of  driver,  see 
Evidence,  465. 

Skidding  of,  as  evidence  of  negligence  in 
operation,   see  Evidence,  343. 

Exclusion  of  self-serving  declarations  of 
person  driving  car  at  time  of  injury, 
see  Evidence,  1351. 

Admissibility  of  chauffeur's  statements  and 
conduct  at  time  of  accident,  see  Evi- 
dence, 1412,  1413. 

Evidence  as  to  habit  of  leaving  unlighted 
machine  standing  at  curb,  see  Evi- 
dence,  1532. 

Sufficiency  of  propf  of  negligence,  see  Evi- 
dence, 2112. 

Variance  between  pleading  and  proof  in  ac- 
tion for  injury,  see  Evidence,  2498. 

[njury  to  pedestrian  by  automobile  driven 
by  street  superintendent,  see  High- 
ways, 173. 

Liability  of  community  for  negligence  of 
husband  in  driving,  see  Husband  and 
Wife,  51. 

Insurance  against  loss  from  injury  by,  see 
Insurance,  677,  678,  940-943. 

When  limitations  begin  to  run  against  ac- 
tion for  injury,  see  Limitation  ^  of 
Actions,  184. 

Automobile  as  nuisance  on  account  of  tend- 
ency to  skid,  see  Nuisances,  14. 

Authority  of  boy  operating  parent's  ma- 
chine to  engage  physician  to  attend 
person  whom  he  injures,  see  Parent 
and  Child,  7. 

Question  for  jury  as  to  negligence,  see 
Trial,  416-419. 

Refusal  of  instructions  in  action  for  in- 
jury, see  Trial,  820. 

Correctness  of  instruction  in  action  for  in- 
jury,  see  Trial,   1063,   1064,  1069. 

Sufficiency  of  verdict  in  action  for  injury, 
see  Trial,  1141. 

Cross-examination  of  plaintiff  in  action  for 
injuries  by,  see  Witnesses,  85. 

Eomicide  by  reckless  driving,  see  Homi- 
cide,  3-6. 

Evidence  in  prosecution  of  chauffeur  for 
homicide,  see  Evidence,  1555. 

Instructions  in  prosecution  for  homicide  in 
negligent  operation  of  automobile,  see 
Trial,  943. 

See  also  supra,  4. 

10.  The  use  of  an  automobile  on  a  pub- 
lic highway  is  not  negligence  as  matter  of 
law.  Indiana  Springs  Co.  v.  Brown,  i:  238, 
74  N.  E.  615,  165  Ind.  465.         (Annotated) 

11.  One  using  an  automobile  on  a  pub- 
lic highway  is  required  to  use  only  r.eason- 
able  care  and  caution  for  the  safety  of 
others.  House  v.  Cramer,  10:  655,  112  N. 
W.  3,  134  Iowa,  374. 

12.  There  may  be  a  recovery  for  com- 
mon-law negligence  in  handling  an  auto- 
mobile on  a  highway  if  properly  pleaded, 
although  the  use  of  such  vehicles  has  be- 
come a  matter  of  statutory  regulation. 
Christy  v.  Elliott,  1:215,  74  N.  E.  1035, 
216  111.  31.  (Annotated) 

13.  The  rights  of  pedestrians  and  driv- 


216 


AUTOMOBILES,  II.  a. 


era  of  automobiles,  when  using  streets  or 
other  public  highways,  are  mutual,  equal, 
and  co-ordinate,  except  as  varied  by  the 
nature  of  the  appliance  or  mode  of  travel 
employed,  and  as  long  as  each  observes  the 
reciprocal  rights  of  the  other  neither  will 
be  liable  for  any  injury  his  use  may  cause. 
Deputy  V.  Kimmell,  51:989,  80  S.  E.  910, 
73  W.  Va.  595.  (Annotated) 

14.  The  driver  of  an  automobile  is  negli- 
gent in  propelling  his  machine  against  a 
pedestrian  standing  in  plain  sight  near  a 
street  car  track,  waiting  to  board  a  car,  al- 
though he  does  not  respond  to  a  signal  an- 
nouncing the  approach  of  the  automobile. 
Ouellette  v.  Superior  Motor  &  Machine 
Works,  52:  299,  147  N.  W.  1014,  157  Wis. 
531. 

15.  The  driver  of  an  automobile,  and  the 
driver  of  a  horse  upon  a  highway,  are  each 
required  to  regulate  his  own  use  by  the 
observance  of  ordinary  care  and  caution  to 
avoid  receiving  injury,  as  well  as  inflicting 
injury  on  another.  Indiana  Springs  Co.  v. 
Brown,  i:  238,  74  N.  E.  615,  165  Ind.  465. 

(Annotated) 

16.  The  driver  of  an  automobile  is  negli- 
gent in  proceeding  along  a  city  street  when 
he  is  so  blinded  by  the  headlight  of  an  ap- 
proaching car  that  he  cannot  see  objects 
ahead  of  him.  Jaquith  v,  Worden,  48:  827, 
132  Pac.  33,  73  Wash.  349. 

17.  A  chauffeur  is  negligent  in  taking 
his  hands  from  the  steering  gear  to  adjust 
his  hat  while  the  car  is  running  30  miles 
an  hour,  although  the  road  is  level,  smooth, 
and  straight.  O'Bierne  v.  Stafford,  46:  1183,  j 
87  Atl.  743,  87  Conn.  354. 

18.  The  driver  of  an  automobile  may  be 
found  to  be  negligent  in  turning  from  side 
to  side,  instead  of  stopping  the  machine,  to 
avoid  hitting  one  who,  having  been  warned 
of  its  approach  by  a  signal,  has  become  con- 
fused, and  is  dodging  back  and  forth  to 
avoid  being  hit.  Weil  v.  Kreutzer,  24:  557, 
121  S.  W.  471,  134  Ky.  5(53.       (Annotated) 

19.  The  driver  of  an  automobile  is  liable 
for  running  down  a  boy  standing  in  or 
moving  diagonally  across  the  street  ahead 
of  him,  and  unaware  of  his  peril,  if  the 
driver  failed  to  see  him  and  avoid  a  col- 
lision because  he  permitted  his  attention 
to  be  diverted  in  another  direction.  Bur- 
vant  V.  Wolfe,  29:  677,  52  So.  1025,  126  La. 
787. 

20.  One  driving  an  automobile  on  a 
highway  constantly  traveled  by  pedestrians 
and  teams  and  occupied  by  children  must 
exercise  so  high  a  degree  of  diligence  in 
apprQaching  such  persons  as  to  enable  him 
to  control  his  machine,  or  stop  it  if  neces- 
sary to  avoid  collision  which  cannot  be  re- 
garded as  a  pure  accident  or  due  to  con- 
tributory negligence.  Savoy  v,  McLeod, 
48:  971,  88  Atl.  721,  111  Me.* 234. 

21.  One  is  negligent  in  driving  an  auto- 
mobile   into   collision   with    a   team   slowly 
approaching  from  the  opposite  direction  in 
a  highway,  although  the  driver  fails  to  obey  ; 
his   signal    to   turn    out    to    let   him   pass.  ' 
Digest  1-52  I..B.A.(N.S.) 


Savoy  V.  McLeod,  48:  971,  88  Atl.  721,  111 
Me.  234. 

22.  The  driver  of  an  automobile  can- 
not be  held  liable  for  injuries  to  the  oc- 
cupant of  a  horae-drawn  vehicle  which  he 
was  about  to  meet  and  pass  unless  his 
negligence  is  the  proximate  cause  of  such 
injuries.  Messer  v.  Bruening,  48:  945,  142 
N.  W.  158,  25  N.  D.  599. 

23.  A  driver  of  a  motor  vehicle  who  neg- 
ligently, because  of  excessive  speed  or  not 
having  his  machine  under  control,  fails  to 
keep  to  the  right  of  the  intersection  of  a 
public  street,  wlien  turning  to  the  right,  as 
required  by  statute,  but  crosses  to  the  left 
instead,  and  collides  with  another  vehicle 
lawfully  upon  that  side  of  the  street,  whose 
driver  is  free  from  negligence,  is  responsible 
for  the  consequent  damages.  Molin  v.  Wark, 
41:346,   129  N.   W,   383,  113  Minn.   190. 

(Annotated) 

24.  The  jury  may  find  that  it  is  the  duty 
of  the  driver  of  an  automobile  to  stop  to 
permit  a  faster  car  to  pass,  where,  for  miles, 
there  would  be  no  proper  opportunity  for 
it  to  pass  while  both  cars  were  in  motion, 
and  stopping  for  a  few  seconds  would  per- 
mit it  to  do  so,  under  a  statute  requiring 
an  overtaking  car  to  pass  on  the  left,  and 
the  driver  of  the  forward  one  to,  "as  soon 
as  practicable,  turn  to  the  right,  so  as  to 
allow  free  passage  on  the  left."  Mark  v. 
Fritsch,  22:  632,  88  N.  E.  380,  195  N.  Y.  282. 

25.  The  driver  of  an  automobile  who 
overtakes  and  passes  another  car  at  such 
speed,  and  returns  to  the  right  side  of  the 
road  so  close  to  it  as  to  disconcert  its  driv- 
er by  striking  the  car  and  causing  it  to 
swerve  over  the  embankment,  is  liable  for 
the  injury  thereby  inflicted  upon  the  occu- 
pants of  the  car,  although  the  blow  was  not 
sufficient  to  propel  the  car  over  the  em- 
bankment. Granger  v.  Farrant,  51:  453, 
146  N.  W.  218,  179  Mich.  19.     (Annotated) 

26.  All  who  join  in  an  enterprise  to 
take  a  pleasure  ride  in  an  automobile  on 
a  highway  are  liable  in  case  the  one  having 
control  of  the  machine  is  guilty  of  reckless 
driving.  State  v.  Davis,  34:  295,  70  S.  E. 
811,  88  S.  C.  229. 

27.  A  statute  making  the  owner  of  a 
motor  vehicle  liable  for  injuries  caused  by 
its  operation  by  any  person  limits  liability 
to  the  proprietor  of  the  vehicle,  and  does 
not  extend  it  to  persons  who  may  be 
mediately  or  immediate!}^  in  possession  of 
it,  where  other  provisions  of  the  statute 
provide  for  its  registration  by  the  owner 
Daugherty  v.  Thomas,  45:  699,  140  N.  W. 
615,  174  Mich.  371. 

Effect  of  failure  to  procure  license. 

28.  Mere  failure  of  the  driver  of  an 
automobile  to  have  secured  the  statutory 
license  at  the  time  his  machine  injured  a 
pedestrian  on  the  highway  will  not  ren- 
der him  liable  for  the  injury,  unless  such 
failure  had  some  causal  relation  to  the  in- 
jury. Lindsay  v.  Cecchi,  35:  699,  80  Atl. 
523,  3  Boyce   (Del.)    133.  (Annotated) 

28a.  Failure  to  comply  with  a  statute 
forbidding  one,  under  penalty,  to  operate 
an  automobile  on  a  public  highway  with- 


AUTOMOBILES,  II.  a. 


217 


out  a  license,  does  not,  in  case  the  oper- 
ator is  in  fact  competent,  make  him  a  tres- 
passer on  the  liighway,  so  as  to  be  liable 
for  all  injuries  to  other  vehicles  with  which 
he  comes  into  collision,  even  though  it  was 
not  due  to  any  negligence  in  the  operation 
of  his  car.  Bourne  v.  Whitman,  35:  701, 
95  N.  E.  404,  209  Mass.  155. 
At  street  crossings. 

29.  A  greater  degree  of  care  is  required 
by  the  operator  of  an  automobile  while  on 
the  public  highway  and  especially  at  street 
crossings  than  is  required  of  persons  using 
the  ordinary  or  less  dangerous  instruments 
of  travel.  Deputv  v.  Kimmell,  51:  989,  80 
S.  E.  919,  73  W.  Va.  595. 

30.  The  driver  of  an  automobile  must 
approach  street  crossings  with  his  machine 
under  control.  Baker  v.  Close,  38:  487,  97 
N.  E.  501,  204  N.  Y.  92.  (Annotated) 

31.  The  driver  of  an  automobile  is  guilty 
of  gross  negligence  in  driving  his  car  at  high 
speed  across  the  intersection  of  two  much- 
used  streets  and  around  the  end  of  a  street 
car,  which  obstructs  his  view  of  the  cross- 
ing, so  that,  upon  finding  a  pedestrian  di- 
rectly in  the  path  of  the  car,  he  cannot 
avoid  a  collision  with  him.  Gregory  v. 
Slaughter,  8:  1228,  99  S.  W.  247,  124  Ky. 
345. 

Passing    street    car    discharging    pas- 
sengers. 

32.  The  driver  of  an  automobile  may  be 
found  to  be  negligent  in  running  his  ma- 
chine at  a  speed  of  10  or  12  miles  an  hour, 
on  the  parallel  track  past  a  street  car 
which  he  has  overtaken  after  it  has  stopped 
to  discharge  passengers  from  the  front  door, 
without  taking  precautions  to  ascertain  if 
passengers  will  attempt  to  cross  in  front  of 
the  car,  where  there  is  a  space  of  60  feet  be- 
tween the  car  and  the  curb  which  the  driver 
might  have  used.  Minor  v.  Mapes,  39:  214, 
144  S.   W.  219,   102  Ark.  351. 

•  33.  An  automobile  overtaking  and  pass- 
ing a  street  car  is  within  the  operation  of 
a  statute  providing  that  the  driver  of  a 
carriage  or  other  vehicle  passing  another 
carriage  or  other  vehicle  traveling  in  the 
same  direction  shall  drive  to  the  left.  Fos- 
ter v.  Curtis,  42:  1188,  99  N.  E.  961,  213 
Mass.  79.  (Annotated) 

34.  A  provision  in  a  statute  requiring 
vehicles  overtaking  others  on  the  highway 
to  pass  to  the  left,  that  it  shall  not  apply  to 
horse  railroads,  does  not  take  out  of  its 
operation  an  automobile  overtaking  a  street 
car.  Foster  v.  Curtis,  42:  11 88,  99  N.  E. 
961,  213  Mass.  79. 

35.  The  driver  of  an  automobile  will  not 
be  negligent  in  failing  to  obey  a  statutory 
direction  to  pass  an  overtaken  street  car 
on  the  left  of  the  middle  of  the  way,  if  the 
car  tracks  are  located  along  the  side  of 
the  road,  so  that  the  statute  cannot,  in  the 
exercise  of  reasonable  care,  be  literally 
obeyed.  Foster  v.  Curtis,  42:  1188,  99  N. 
E.  961,  213  Mass.  79. 

36.  A  passenger  injured  by  an  auto- 
mobile when  alighting  from  a.  street  car 
cannot  rely  on  the  violation  by  the  driver 
of  the  automobile,  of  his  statutory  duty  to 
Digest  1-52  L.R.A.(N.S.) 


pass  to  the  left  of  the  ear,  to  establish 
negligence  on  his  part.  Marsh  v.  Boy  den, 
40:  582,  82  Atl.  393,  33  R.  I.  519. 

37.  That  the  driver  of  an  automobile 
passes  an  overtaken  vehicle  on  the  wrong 
side  does  not  impose  upon  him  a  greater 
degree  of  care  to  avoid  injury  to  pedestrians 
than  would  rest  upon  him  had  he  been  on 
the  proper  side.  Marsh  v.  Boyden,  40:  582, 
82  Atl.  393,  33  R.  I.  519. 
Frightening  horse. 

38.  One  driving  an  automobile  on  a  pub- 
lic highway  is  bound  to  take  notice  that 
it  is  likely  to  startle  horses  when  driven 
toward  them  at  a  rapid  rate.  Mclntyre  v. 
Orner,  4:  1130,  76  N.  E.  750,   166  Ind."57. 

(Annotated) 

39.  That  the  driver  of  an  automobile 
successfully  passed  a  team  of  horses  on  a 
highway  when  overtaking  them  from  the 
rear  does  not  justify  his  assuming  that  he 
can  do  so  when  meeting  them,  if,  when  200 
feet  away,  he  sees  that  they  are  making 
violent  efforts  to  break  away.  Mclntyre  v. 
Orner,  4:  1130,  76  N.  E.  750,  166  Ind.  57. 

40.  The  necessity  of  constant  observa- 
tion of  the  road  to  avoid  holes  and  guide 
his  machine  in  safety  does  not  justify  the 
driver  of  an  automobile  in  driving  the  ma- 
chine at  more  than  15  miles  an  hour  to 
within  15  or  20  feet  of  a  team  of  horses 
whicn  are  badly  frightened  at  its  approach. 
Mclntyre  v.  Orner,  4:  1130,  76  N.  E.  750,  166 
Ind.  57.  (Annotated) 

41.  The  driver  of  an  automobile  is  bound 
to  take  notice  of  its  effect  upon  horses 
which  it  is  approaching  on  a  highway,  and, 
if  they  exhibit  signs  of  fright,  to  slow  up, 
stop  the  machine,  or  do  whatever  is  reason- 
ably required  to  relieve  the  persons  in  the 
carriage  of  their  perilous  situation.  Mcln- 
tyre v.  Orner,  4:  1130,  76  N.  E.  750,  166  Ind. 
57.  (Annotated) 

42.  One  attempting  to  crank  an  automo- 
bile in  close  proximity  to  horses,  without 
paying  any  attention  to  whether  or  not 
they  are  frightened  by  the  resulting  noise, 
and  continuing  to  turn  the  crank  until  the 
machine  starts  notwithstanding  the  horses 
manifest  fright,  as  the  result  of  which  they 
run  away,  is  responsible  for  the  resulting 
injury  to  them.  Tudor  v.  Bo  wen,  30:  804, 
67  S.  E.  1015,  152  N.  C.  441. 

43.  It  is  negligence  per  se  to  attempt  to 
crank  a  defective  automobile  which  makes 
a  terrible  noise  when  starting,  in  close 
proximity  to  horses,  without  giving  their 
driver  notice  to  remove  them  to  a  safe 
place.  Tudor  v.  Bowen,  30:  804,  67  S.  E. 
1015,  152  N.  C.  441. 

44.  The  driver  of  an  automobile  is  not 
negligent  per  se  in  failing  to  arrest  the 
sparker  upon  making  only  a  brief  stop  with 
the  machine.  House  v.  Cramer,  10:  655,  112 
N.  W.  3,  134  Iowa,  374. 

45.  One  stopping  an  automobile  in  front 
of  a  corner  store  is  not  liable  for  the  run- 
ning away  of  a  team  hitched  near  the  corner 
on  a  side  street,  although  he  permitted  the 
explosions  to  continue  after  the  machine 
stopped,  if,  after  he  saw,  or  might  have 
seen,  that  the  team  was  frightened,  he  could 


218 


AUTOMOBILES,  II.  a. 


not  have  stopped  the  noise  in  time  to  obvi- 
xte  the  escape  of  the  team.  House  v. 
Cramer,  lo:  655,  112  N.  VV.  3,  134  Iowa,  374. 

46.  The  driver  of  an  automobile,  upon 
meeting  upon  the  highway  a  hor.se  which  is 
irightened  and  in  such  a  situation  that  its 
driver  cannot  extricate  himself  from  danger 
unless  the  machine  is  stopped,  is  bound  to 
Btop,  and  will  be  liable  for  the  injuries  in- 
flicted by  his  failure  so  to  do.  Indiana 
Springs  Co.  v.  Brown,  i:  238,  74  N.  E.  G15, 
165  Ind.  465.  (Annotated) 

47.  A  statutory  requirement  that  tlie 
driver  of  an  automobile  shall  stop  it  upon 

•  approaching  a  horse  which  appears  to  be 
frightened  will  apply  in  case,  "by  the  ex- 
ercise of  reasonable  diligence  on  the  part 
of  the  driver,"  it  would  have  appeared  that 
a  horse  was  frightened.  Christy  v.  Elliott, 
i:  215,  74  N.  E.   1035,  216  111.  31. 

(Annotated) 

48.  No  signal  from  the  persons  in  a  car- 
riage drawn  by  a  horse,  that  the  animal  is 
about  to  be  frightened  by  an  approaching 
automobile,  is  necessary  to  charge  the  driver 
of  the  latter  with  the  statutory  duty  to 
stop  the  machine,  if  it  appears  that  a  horse 
approaching  on  the  highway  is  about  to  be- 
come frightened  by  the  machine.  Christy 
v.  Elliott,  i:  215,  74  N.  E.  1035.  216  111.  31. 

(Annotated) 

49.  The  requirement  of  Minn.  Gen.  Laws 
1903,  chap.  356,  p.  646,  §  2,  that  operators 
of  automobiles  upon  public  highways  shall 
stop  upon  being  signaled  to  do  so,  does  not 
impose  upon  them  the  duty,  upon  signal,  to 
stop  the  motive  power  of  the  vehicle,  in  ad- 
dition to  stopping  the  vehicle  itself.  Ma- 
honey  v.  Maxfield,  14:  251,  113  N.  W.  904, 
102  Minn.  377.  (Annotated) 

50.  The  driver  of  an  automobile,  who 
is  about  to  meet  and  pass  a  horse-drawn 
vehicle,  may  be  negligent  in  not  prompt- 
ly observing  that  the  horse  is  frightened, 
and  in  continuing  on  his  way  until  he 
actually  observed  this,  if,  in  the.  exercise 
of  prudence,  he  should  have  observed  the 
fright  and  stopped  the  automobile  before 
he  did.  Messer  v.  Bruening,  48: 945,  142 
N.  W.  158,  25  N.  D.  599. 

(Annotated) 

51.  No  liability  of  the  driver  of  an  au- 
tomobile for  failure  to  stop  his  machine 
when  about  to  meet  and  pass  a  horse-drawn 
vehicle  can  be  based  upon  a  statute  which 
requires  the  driver  of  an  automobile  "when 
signaled  by  the  driver  of  any  vehicle  pro- 
pelled by  horse"  to  stop  the  same  until 
the  horse-drawn  vehicle  has  passed,  where 
an  occupant  of  the  horse-drawn  vehicle 
other  than  the  driver  signaled  him  to  stop. 
Messer  v.  Bruening,  48:  945,  142  N.  W. 
158,  25  N.  D.  599. 

Speed. 

Opinion  as  to  speed  of,  see  Evidence,  1137, 

1138. 
Correctness  of  instructions  as  to  unlawful 

rate  of  speed,  see  Trial,  1069. 
See  also  supra,  30-32. 

52.  One  who  drives  an  automobile  at  an 
unlawful  speed  is  guilty  of  negligence. 
Digest  1-52  I<.R.A.(N.S.) 


Hubbard   v.    Bartholomew,   49:  443,    144   N.  ^, 
VV.  13,  103  Iowa,  58.  ^ 

Lack  of  lights.  . 

53.  Running  an  automobile  on  the  public,) 
streets    at    night    without    lights,   in    viola-   i 
tion  of  the  statutory  requirements,  is  evi- 
dence   of    negligence.      Zoltovski    v.    GzcUa, 
26:  435,   124  N.   W.  527,   159  Mich.   620 
Injury  to  person  riding  vrith  driver. 

54.  One  who  invites  another  to  ride  in 
liis  automobile  must  exercise  ordinary  care 
not  to  increase  the  danger  of  such  under- 
taking, or  create  a  new  danger,  and  will  be 
liable  to  him  for  injuries  caused  by  such 
rapid  driving  of  the  machine,  against  the 
protest  of  the  guest,  as  to  result  in  a  col- 
lision with  an  obstruction  in  the  street. 
Beard  v.  Klusmeier,  50:  iioo,  164  S.  W. 
319,  158  Ky.  153.  (Annotated) 

54a.  One  who  operates  a  sight-seeing 
automobile  over  regular  routes  in  a  city, 
which  he  invites  the  general  public  to  pat- 
ronize for  hire,  owes  patrons  the  duty  of 
exercising,  in  the  operation  of  the  vehicle, 
the  highest  degree  of  care  consistent  with 
the  proper  transaction  of  the  business. 
Hinds  v.  Steere,  35:  658,  95  N.  E.  844,  209 
Mass.  442.  (Annotated) 

55.  The  owner  of  a  passenger-carrying 
automobile  cannot  escape  liability  for  in- 
jury to  a  passenger  caused  by  collision  be- 
tween the  automobile  and  a  street  car,  if 
the  chauffeur  negligently  ran  near  the  car 
at  high  speed  without  having  the  machine 
under  control,  and,  without  such  negligence, 
the  accident  would  not  have  happened,  al- 
though the  immediate  cau.se  of  the  accident 
was  the  breaking  of  a  brake-rod  through  a 
latent  defect,  for  which  the  owner  was  not 
responsible.  Johnson  v.  Coey,  21:  81,  86 
N.  E.  678,  237  111.  88.  (Annotated) 
Responsibility  of  ovrner  nrhen  car  op- 
erated by  another. 

Husband's  liability  for  negligence  of  wife 
in  driving,  see  Husband  and  Wife,  15.  , 

Liability  of  lunatic  for  negligence  of  chauf- 
feur, see  Incompetent  Persons,  16. 

Liability  of  parent  for  negligence  of  child 
operating  machine,  see  Evidence,  133, 
2243;  Master  aad  Se^jvant,  54-58, 
888;  Parent  and  Child,  22-24;  Prin- 
cipal and  Agent,  88 ;  Trial,  245,  1038. 

Who  is  master  of  negligent  chauffeur,  see 
Master  and  Servant,  36. 

Who  is  master  of  driver  of  hired  machine, 
see  Master  and  Servant,  45-58. 

Chauffeur  as  independent  contractor  and 
not  servant,  see  Master  and  Servant, 
1031. 

Evidence  as  to  whether  one  operating  auto- 
mobile was  servant  of  owner,  see  Evi- 
dence, 1962. 

When  child  operating  is  deemed  servant  of 
father,  see  Master  and  Servant,  54- 
58;  Trial,  245,  1038. 

Question  whether  negligent  chauffeur  was 
acting  within  xscope  of  employment  at 
time  of  injury,  see  Master  and  Serv- 
ant, 920-929. 

Presumption  as  to  authority  of  servant 
driving  automobile,  see  Evidence,  178, 
184. 


AUTOMOBILES,  II.  b. 


219 


Automobile  as  dangerous  agency  in  hands 
of  servant,  see  Master  and  Sekvant, 
983-986. 

Liability  of  city  for  negligence  of  employee 
in    running    machine,    see    Municipal 

CORPOKATIONS,    3St). 

Sufficiency  of  proof  that  child  had  not  been 
forbidden  to  run  father's  automobile, 
see  Evidence,  2346. 
Making  owner  liable  for  injury  through  use 
of  machine  by  persons  wlio  have  taken 
it  without  his  knowledge  or  permission, 
see  Constitutional  Law,  392. 
Liability  of  owner  for  injury  by  car  while 
being  run  by  one  to  wliom  it  had  been 
intrusted  for  repair,  see  Mastee  and 
Servant,   1032.  tal  .lo   noisr.- 

See  also  supra,  55.  i.- 

66.  To  sustain  a  recovery  for  injuries 
caused  by  being  run  down  by  an  automobile 
owned  by  the  defendant,  while  being  oper- 
ated by  another,  the  plaintiff  must  show 
by  a  preponderance  of  the  evidence  that  the 
person  in  charge  of  the  machine  was  the 
defendant's  servant,  and  was  at  the  time  of 
the  accident  engaged  in  the  master's  busi- 
ness or  pleasure,  with  the  master's  knowl- 
edge and  direction.  Neff  v.  Brandeis,  39: 
933,  135  N.  W.  232,  91  Neb.  11. 

57.  The  owner  of  an  automobile  is  not 
liable  on  the  theory  that  it  is  a  dangerous 
machine,  for  its  negligent  use  to  the  injury 
of  a  stranger  by  one  to  whom  he  had  loaned 
it  and  who  was  in  complete  control  of  its 
operation,  although  the  owner  is,  at  the 
time  of  the  accident,  present  in  the  machine 
as  a  guest.  Hartley  v.  Miller,  33:  81,  130 
N.  W.  336,  165  Mich.  115.  (Annotated) 

6.  Contributory  negligence. 

Negligence  of  driver  of  car  in  which  person 
killed  by  other  car  is  riding,  see  Homi- 
cide, 6. 

Negligence  in  attempting  to  escape  from 
peril,  see  Negligence,  213. 

Imputing  negligence  of  driver  to  passenger, 
see  Negligence,  260,  268-271. 

Application  of  doctrine  of  last  clear  chance 
in  case  of  injury  by  automobile,  see 
Negligence,  205. 

As  proximate  cause  of  injury,  see  Proxi- 
mate Cause,  164. 

As  question  for  jury,  see  Trial,  430-433. 

58.  A  pedestrian  injured  by  an  automo- 
bile in  a  public  street  cannot  hold  the  owner 
liable  in  damages  if  he  might,  by  the  ex- 
ercise of  his  ordinary  faculties,  have  avoid- 
ed the  accident.  Minor  v.  Stevens,  42:  1178, 
118  Pac.  313,  65  Wash.  423.         (Annotated) 

39.  A  person  lawfully  in  a  public  high- 
way may  rely  upon  the  exercise  of  reason- 
able care  by  drivers  of  automobiles  to 
avoid  injury  to  him.  Deputy  v.  Kimmell, 
51:  989,  80  S.  E.  919,  73  W.  Va.  595. 

60.  A  pedestrian  is  not  bound,  as  matter 
of  law,  when  lawfully  using  the  public  high- 
ways, to  be  continuously  looking  or  listen- 
ing to  ascertain  if  auto  cars  are  approach- 
ing, under  penalty  that,  upon  his  failure  to 
do  so,  if  he  is  injured  his  own  negligence 
Digest  1-52  L.R.A.(N.S.) 


must  be  conclusively  presumed.  Gerhard  v. 
Ford  Motor  Co.  20:  232,  119  N.  W.  904,  155 
Mich.   618.  (Annotated) 

61.  A  pedestrian  seeking  to  cross  a  high- 
way is  not  baund"  to  be  constantly  on  the 
lookout  to  ascertain  if  auto  cars  are  ap- 
proaching, under  the  penalty  that,  upon 
failing  ta  do  so,  if  injured,  his  negligence 
must  be  conclusively  presumed.  Hennessey 
v.  Taylor,  3:  345,  76  N.  E.  224,  189  Mass. 
583.  (Annotated) 

62.  A  pedestrian  is  not  bound  to  look 
both  ways  and  listen  before  attempting  to 
cross  a  street  at  a  regular  crossing,  although 
the  street  at  that  point  is  much  used  by 
automobiles,  but  his  duty  is  to  use  such 
reasonable  care  as  the  case  requires.  Baker 
v.  Close,  38:  487,  97  N.  E.  501,  204  N,  Y.  92. 

(Annotated) 

63.  The  rule  requiring  travelers  to  look 
out  for  trains  at  railroad  crossings  does 
not  fix  the  measure  of  care  which  a  pe- 
destrian attempting  to  cross  a  street  nlust 
use  in  looking  out  for  automobiles.  Mill- 
saps  V.  Brogdon,  32:1177,  134  S.  W.  632, 
97  Ark.  469. 

64.  It  is  not  negligence  per  se  for  a  man 
riding  a  bicycle  along  a  street  in  front 
of  an  automobile  to  attempt  to  cross  the 
road  in  front  of  the  rfkachine,  if  it  was  so 
far  behind  him  that  it  might  reasonably 
have  been  expected  that  the  driver  would 
see  him,  and  could  and  would,  by  the  exer- 
cise of  proper  care,  so  manage  the  niachine 
as  to  avoid  a  collision;  but  the  question  is 
one  for  the  jury  under  all  the  circumstan- 
ces of  the  case.  Rogers  v.  Philips,  28:  944, 
92  N.  E.  327,  206  Mass.  308. 

Of  person  alighting  from  street  car. 

65.  A  passenger  alighting  from  a  street 
car  at  a  place  other  than  a  cross  walk  has 
a  right  to  presume  that  the  driver  of  an 
automobile  following  the  car  will  pass  to 
the  left,  as  required  by  statute,  and  the 
jury  may  consider  the  driver's  failure  to 
do  so,  to  the  injury  of  the  passenger,  as 
evidence  of  negligence  on  his  part.  Foster 
V.  Curtis,  42:  1 188,  99  N.  E.  961,  213  Mass. 
79. 

66.  A  passenger  is  not  negligent  in 
alighting  from  a  street  car,  knowing  that 
an  automobile  is  following  the  car,  if  it 
is  not  so  close  that  it  could  not  have  been 
stopped  by  th6'  exercise  of  ordinary  care 
and  prudence  on  the  part  of  the  driver 
before  it  reached  him.  Marsh  v.  Boyden, 
40:  582,   82  Atl.  393,  33   R.   I,  519. 

Of  driver  or  rider'  of  horse. 

67.  The  driver  of  a  restive  horse,  who, 
upon  seeing  an  automobile  approaching, 
drives  into  an  offset  from  the  road,  where 
the  horse  becomes  unmanageable,  assumes 
the  risk  of  injury  in  attempting  to  force 
it  past  the  machine  after  it  has  been 
stopped  beside  the  road.  Cumberland 
Teleph.  &  Teleg.  Co.  v.  Yeiser,  31:  1137,  131 
S.   W.    1049,    141    Ky.    15.  (Annotated) 

68.  The  driver  of  a  team  on  a  public 
highway  may  be  found  not  to  be  negligent 
in  failing  to  turn  out  to  pass  an  approach- 
ing   automobile,    if    there    is    room    in    the 


220 


AUTOPSY— BAD   REPUTATION. 


highway  for  the  automobilo  to  pass  without 
his  doing  so.  Savov  v.  McLeod,  48:  971, 
88  Atl.  721,  111  Me. '234. 

69.  The  failure  of  the  driver  of  a  horse- 
drawn  vehicle  to  give  the  statutory  signal 
to  an  automobile  whicli  he  is  about  to  meet 
and  pass,  to  stop,  does  not  preclude  a  re- 
covery by  him  for  injury  suffered  in  an 
action  based  on  common-law  negligence. 
Messer  v.  Bruening,  48:  945,  142  N.  W.  158, 
25  N.  D.  599. 

70.  The  driver  of  a  vicious  horse,  upon 
seeing  an  automobile  approach,  and  know- 
ing that  an  attempt  to  pass  it  will  result  in 
a  struggle  for  the  mastery  between  himself 
and  the,  horse,  is  negligent  in  attempting  to 
keep  the  horse  in  the  road  while  the  auto- 
mobile passes,  without  warning  the  driver 
of  the  danger,  so  that  in  case  he  is  thrown 
and  killed  the  driver  of  the  automobile  can- 
not be  held  liable  for  the  injury.  Dreier  v. 
McDermott,  50:  566,  141  N.  W.  315,  157 
Iowa  726.  (Annotated) 
Of  children. 

71.  An  eleven-year-old  boy  is  not  negli- 
gent in  standing  in  or  moving  diagonally 
across  a  street  toward  the  scene  of  a  com- 
motion to  which  many  people  are  going, 
without  looking  out  for  automobiles  which 
may  come  up  behind  him,  but  to  do  so 
must  be  on  the  wrong  side  of  the  street. 
Burvant  v.  Wolfe,  29:  677,  52  So.  1025,  126 
La.  787. 

72.  A  thirteen-year-old  boy  at  play  in 
the  street  is  guilty  of  negligence  in  be- 
coming so  engrossed  in  his  play  that  he 
attempts  to  run  across  the  street  directly 
in  front  of  an  approaching  automobile, 
without  taking  any  precaution  to  see  if 
such  a  machine  or  other  vehicle  is  approach- 
ing. Zoltovski  v.  Gzella,  26:  435,  124  N.  W. 
527,  159  Mich.  620.  ( Annotated ) 


AUTOPSY. 


Liability  for  making  unauthorized  autopsy, 

see  Corpse,  3,  4,  16,  17. 
Evidence  as  to,  see  Evidence,  1292,  1983. 


AVERAGE. 

1.  Expense  incurred  for  the  safety  of  & 
cargo  which  has  been  removed  from  the 
vessel  with  no  intention  of  reloading  it 
must  be  charged  against  it  alone.  St.  Paul 
F.  &  M.  Ins.  Co.  v.  Pacific  Cold  Storage  Co. 
14:  1 161,  157  Fed,  625,  87  C.  C.  A.  14. 


AVULSION. 


Submersion   of  land  by,   see  Waters,   180,. 
161. 


AVTARD. 

Of  arbitrator,  see  Arbitration,  III. 

Court's  power  to  set  aside  award  of  board,^ 
see  Courts,  3. 

Of  commissioners  in  condemnation  proceed- 
ings, see  Eminent  Domain,  II.  c.  2. 

Competency  of  commissioner  in  condemna- 
tion proceedings,  see  Eminent  Do- 
main, 160,  161. 

Interest  on,  see  Interest,  28,  29. 


A\(^NINGS. 


In  street  generally,  see  Highw.\Y8,  30,  43. 
Requiring   removal   of   stationary   awnings, 

see     Municipal     Corporations,     102, 

103;   Trial,   192. 
Injury   from   fall   of,   see  Highways,   291- 

295;    Master  and   Servant,   1010. 


B 


BAD    CHARACTER. 

Evidence,  as  to,  see  Evidence,  XJ.  c. 
Actionability  of  charge  of,  see  Libei.  and 
Slander,  II.  b. 


BAD    FAITH. 


Intent  to  defraud  creditors  as  taking  place 

of,  see  Evide:nce,  230. 
Evidence  as  to,  see  Evidence,  XI.  e. 
Question  for  jury  as  to,  see  Trial,  II.  c.  5. 
Digest  1-52  Ii.R.A.(N.S.) 


BADGE. 

Forbidding  wearing  of  badge  of  society  of 
.which  one  is  not  a  member,  see  Asso- 
citations,  1,  7;  Constitutional  Law, 
639. 


BAD    REPUTATION. 

Evidence  as  to,  see  Evidence,  XI.  c. 
Actionability  of  charge  of,  see  Libel  and 
Slander,  II.  b. 


BAGKiAGE— BAIL  AKD  RECOGNIZANCE. 


221 


BAGGAGE. 

In  general,  see  Carriers,  II.  o. 

Injury  by  fall  of,  from  rack,  see  Careiebs, 

204,   205,  252. 
Injury  to  passenger  by  falling  over  valise 

in  aisle,  see  Carbibirs,  206. 
Discrimination  in  granting  privilege  to  so- 
licit, see  Carriers,  1007-1013, 
Requiring  carrier  to  provide  baggage  room, 

see  Carriers,  1082. 
Damages  for  loss  or  delay  of  baggage,  see 

Damages,  296-301. 
Presumption  and  burden  of  proof  as  to  loss 

of,  see  Evidence,  360,  374-378. 
Innkeeper's    liability   for,   see   Innkeepers, 

III.  b. 
Larceny  of,  see  Larceny,  29,  30. 
Proximate  cause  of  loss  of,  see  Proximate 

Cause,  78. 


BAGGAGEMAN. 


Authority  to  eject  trespasser,  see  Carriers, 
401. 


BAGGAGE  TRANSFER  COMPANIES. 

Liability  of.  see  Carriers,  682. 
Discrimination      betv  een,      see      Carriers, 

1007-1013. 
Forbidding   solicitation   of   business   by,   at 

station,  see  Constitutional  Law,  785; 

Municipal  Corporations,  181-185. 


BAIL  AND   RECOGNIZANCE. 

Recovery  of  money  deposited  in  lieu  of  bail, 
see  Assumpsit,   24,  25. 

Embezzlement  by  clerk  of  certified  check 
taken  in  lieu  of  bail,  see  Bonds,  49; 
Parties,  90. 

Effect  of  discharging  prisoner  from  custody 
on  his  surrender  by  Ids  bail,  see  Crimi- 
nal Law,  61. 

Right  to  habeas  corpus  in  case  of,  see  Ha- 
reas  Corpus,  5. 

Discharge  of  one  released  on,  and  cancela- 
tion of  his  bond,  during  his  absence 
from  court,  see  Habeas  Corpus,  69. 

Surrender  by  sureties  to  legalize  imprison- 
ment of  one  not  originally  liable  to 
arrest,  see  Imprisonment  for  Df:bt,  4. 

Effect  of  erroneously  demanding  cash  bail 
on  jurisdiction  of  justice  of  the  peace, 
see  Justice  of  the  Peace,  1. 

Ne  exeat  bond  to  secure  release  from  ar- 
rest, see  Ne  Exeat. 

1.  In  a  proceeding  by  scire  facias  upon 
a  recognizance  given  in  a  criminal  proceed- 
ing, oyer  of  the  recognizance  and  of  the  rec- 
ord upon  which  it  is  founded  may  be  de- 
manded. State  v.  Dorr,  5:  402,  53  S.  E.  120, 
59  W.  Va.  188. 
Bigest  1-52  I,.R.A.(N.S.) 


2.  A  recognizance  given  in  accordance 
with  a  sentence  of  fine  and  imprisonment 
for  wrongfully  selling  intoxicating  liquor, 
but  providing  that  the  imprisonment  part 
shall  be  canceled  on  payment  of  the  fine  if 
accused  will  give  a  recognizance  not  to  make 
further  sales,  is  void,  since  the  court  had  no 
power  to  grant  the  relief.  State  v.  Sturgis. 
43:  443,  85  Atl.  474,   110  Me.  96. 

3.  After  conviction  of  an  accused,  for 
whose  enlargement  bail  had  been  given,  when 
he  was  present  in  court  and  his  passing  into 
custody  of  the  sheriff,  the  court  cannot, 
without  the  knowledge  of  the  sureties,  upon 
granting  him  a  new  trial,  permit  him  to  go 
at  large  under  the  former  bond.  Miller 
V.  State,  20:  861,  48  So.  360,  158  Ala.  73. 

( Annotated ) 

4.  Failure  to  state,  in  a  recognizance  to 
secure  the  enlargement  of  one  under  arrest 
for  uttering  false  paper,  that  it  was  passed 
with  intent  to  defraud,  does  not  render  the 
instrument  void,  if  the  statutory  form  re- 
quires that  the  offense  be  designated  gener- 
ally, and  the  instrument  recites  that  an  in- 
dictment has  been  found  charging  accused 
with  uttering  and  passing  false  paper. 
State  V.  O'Keefe,  38:  309,  108  Pac.  2,  32  Nev. 
331.  (Annotated) 
Right  to  require. 

5.  A  justice  of  the  peace,  who  has  ar- 
rested a  fugitive  from  justice  wholly  with- 
out legal  warrant,  cannot  legally  demand 
from  him  a  bail  bond  or  a  cash  deposit  of 
bail.  State  ex  rel.  Grass  v.  White,  2:  563, 
82  Pac.  907,  40  Wash.  560. 

6.  The  judge  may  require  defendant  in 
a  supplementary  proceeding  to  give  security 
for  his  appearance  in  case  the  action  of  the 
judge  in  ordering  the  clerk  to  dismiss  a 
proceeding  instituted  pending  an  appeal 
from  a  former  one  of  similar  nature  should 
prove  to  be  erroneous,  where  there  is  dan- 
ger of  defendant  leaving  the  state,  and  it 
appears  that  he  has  property  which  he  un- 
justly refuses  to  apply  to  the  satisfaction 
of  the  judgment.  Ledford  v.  Emerson, 
10:  362,  55  S.  E.  969,  143  N.  C.  527. 
Right  to;  ivhen  admitted  to. 
Sufficiency  of  evidence  to  justify  refusal  of, 

see  Evidence,  2348. 

Liability  for  causing  imprisonment  for 
want  of  excessive  cash  bail,  see  False 
Imprisonment,   35. 

Burden  of  proof  in  habeas  corpus  proceed- 
ing for  discharge  on  bail,  see  Habeas 
Corpus,  71. 

What  constitutes  murder  taking  away  right 
to  bail,  see  Homicide,  51. 

7.  One  demanded  by  one  state  from  an- 
other as  a  fugitive  from  justice,  under  the 
Federal  statute,  should  not  be  admitted  to 
bail  in  a  habeas  corpus  proceeding  to  test 
the  validity  of  the  requisition,  unless  some 
departure  from  the  requirements  of  the 
statute  has  been  made  to  appear.  State 
V.  Massee,  46:  781,  79  S.  E.  97,  95  S.  C.  315. 

8.  One  arrested  as  a  fugitive  from  jus- 
tice under  interstat«  rendition  proceedings 
cannot  secure  his  release  on  bail  by  show- 
ing that,  while  he  had  violated  the  crim- 
inal  laws  of   the   demanding  state,   he  had 

l.eJ. /i.;.>v../l..Ji    J.C.— . 


222 


BAIL  AND  RECOGNIZANCE. 


been  guilty  of  no  moral  wrong;  that  the 
prosecution  was  a  hardship  on  him,  insti- 
tuted to  collect  a  debt,  and  that  the  gov- 
ernor of  another  state  had  refused  to  issue 
a  requisition.  State  v.  Massec,  46:  781,  79 
S.  E.  97,  95  S.  C.  315. 

9.  A  convict  is  not  within  the  opera- 
tion of  a  constitutional  provision  that  all 
persons  shall  be  bailable  by  sufficient  sure- 
ties, except  for  capital  offenses,  where  the 
proof  is  evident  or  the  presumption  great. 
Ee  Schriber,  37:  693,  114  Pac.  29,  19  Idaho, 
531. 

10.  Where  a  defendant  who  has  been  con- 
victed and  sentenced  to  serve  a  term  of 
imprisonment  appeals  from  such  judgment, 
and  applies  to  the  trial  judge  for  admission 
to    bail,    such    application    is    addressed    to 

,  the  sound  legal  discretion  of  such  judge 
,  or  court,  arid,  unless  it  clearly  appears 
that  such  discretion  has  been  abused,  the 
action  of  the  trial  judge  or  court  will  not  be 
disturbed  or  interfered  with  by  the  su- 
preme court  on  application  for  a  writ  of 
habeas  corpus.  Re  Schriber,  37:  693,  114 
Pac.  29,   19  Idaho,  531. 

11.  A  Chinese  person  who  has  been  or- 
dered by  a  United  States  district  judge  to 
be  deported  is  not  entitled  to  release  on 
bail  pending  an  appeal  which  does  not  en- 
title him  to  a  trial  de  novo,  where  the  stat- 
ute provides  that  the  marshal  shall  execute 
the  order  of  deportation  with  all  convenient 
despatch,  and  that,  pending  the  execution 
of  the  order,  the  Chinese  person  shall  re- 
main in  custody,  and  shall  not  be  admitted 
to  bail.  Jung  Goon  Jow  v.  United  States, 
31:  1091,  108  Pac.  490,  13  Ariz.  255. 

12.  The  court  is  not  deprived  of  the 
power  to  admit  to  bail  a  Chinaman  who 
has  appealed  from  a  commissioner's  order 
of  deportation,  by  the  act  of  Congress  of 
November  3,  1893,  which  provides  that 
pending  the  execution  of  an  order  of  de- 
portation, the  Chinese  person  shall  remain 
in  custody  of  the  marshal,  and  should  not 
be  admitted  to  bail.  United  States  v. 
Wong  Lee  Foo,  31:  1088,  108  Pac.  488,  13 
Ariz.  252.  (Annotated) 

13.  That  one  committed  to  jail  to  await 
trial  for  murder  is  becoming  anemic  and 
suffers  from  melancholia,  which,  in  the 
opinion  of  physicians,  will  tend  to  shorten 
his  life,  is  not  sufficient  to  entitle  him  to 
the  benefit  of  a  statute  permitting  the  ad- 
mission to  bail  of  any  person  in  legal  cus- 
tody when  it  appears  that  the  confinement 
will  endanger  his  life.  Ex  parte  Johnson, 
31:  916,  131  S.  W.  316,  60  Te.x.  Crim.  Rep. 
50.  (Annotated) 

14.  The  fact  that  there  is  a  conflict  in 
the  testimony  at  a  hearing  on  the  charge 
of  a  capital  offense,  before  an  examining 
magistrate,  does  not  necessarily  show  that 
the  proof  of  guilt  is  not  evident  or  the  pre- 
sumption thereof  not  great,  so  that  such 
magistrate  may  not  refuse  bail,  but,  if  from 
the  entire  evidence  a  reasonable  doubt  of 
the  guilt  of  the  accused  is  not  generated, 
the  proof  is  evident  and  bail  should  be  de- 
nied. Re  Thomas,  39:  752,  93  Pac.  980,  20 
Okla.  167,  1  Okla.  Crim.  Rep.  15. 
Dleest  1-52  I..R.A.(N.S.) 


15.  The  burden   of  proof  being  on   one 

committed  for  a  capital  offense  by  an  exam- 
ining magistrate,  to  show  that  he  is  illegal- 
ly deprived  of  his  liberty,  upon  an  applica- 
tion to  the  supreme  court  for  bail  by  writ 
of  habeas  corpus,  if,  after  hearing  the  whole 
evidence  introduced  on  the  application  for 
bail,  it  is  insufficient  to  generate  in  the 
mind  of  the  court  a  reasonable  doub- 
whether  the  accused  committed  the  act 
charged  and  in  so  doing  was  guilty  of  a 
capital  offense,  such  court  will,  in  the  ab- 
sence of  any  exceptional  circumstance,  re- 
fuse bail.  Re  Thomas,  39:  752,  93  Pac.  980, 
20  Okla.  167,  1  Okla.  Crim.  Rep.  15. 

( Annotated ) 

16.  The  fact  that  a  person  charged  with 
a  capital  offense  supports  his  application  by 
the  ex  parte  affidavits  of  two  other  persona, 
tending  to  establish  an  alihi,  does  not  so 
rebut  or  destroy  the  presumption  arising 
from  the  action  of  the  grand  jury,  in  finding 
the  bill  of  indictment,  as  to  make  it  the 
plain  legal  duty  of  the  judge  of  the  district 
court  to  admit  the  accused  to  bail.  State 
V.  Jenkins,  41:  1198,  57  So.  321,  129  La.  1019. 
Vt^ho   may   take. 

17.  Under  a  statute  vesting  the  power 
to  take  bail  solely  in  persons  or  courts  au- 
thorized by  law  to  arrest  and  imprison  per- 
sons charged  with  the  commission  of  crimi- 
nal offenses,  a  bail  bond  taken  by  the  clerk 
of  a  district  court,  or  his  deputy,  is  void. 
Territory  ex  rel.  Thacker  v.  Woodring,  i : 
848,  82  Pac.  572,  15  Okla.  203.  (Annotated) 
Rights  of  sureties;  release. 

.Bond    to    indemnify    bail,    see    Contracts, 

448;  Fraudulent  Conveyances,  52. 
Conclusiveness  against  surety  of  judgment 
against  principal,   see  Judgment,  254. 
When  statute  of  limitations  begins  to  run 
against    right    of     surety     to     recovei 
amount  paid  under  erroneous  judgment, 
see  Limitation  of  Actions,  117. 
See  also  infra,  25. 

17a.  Sureties  on  the  bond  of  one  under 
indictment  for  felony  do  not  act  at  their 
peril  in  permitting  him  to  leave  the  state  on 
a  visit,  so  as  to  be  absolutely  liable  in  case 
he  is  prevented  from  returning  in  time  for 
his  trial,  because  of  an  unavoidable  accident 
to  his  person.  Hargis  y.  Begley,  23:  136, 
112  S.  W.  602,  129  Ky.  477. 

18.  The  insanity  and  disappearance  of 
his  principal  do  not  release  the  surety  on 
a  bail  bond.  Com.  v.  Allen,  50:  252,  162  S. 
W.  116,  157  Ky.  6.  (Annotated) 

19.  A  surety  on  a  bail  bond  who  cove- 
nants that  his  principal  shall  appear  be- 
fore the  grand  jury  to  answer  the  charge 
against  him,  and  shall  at  all  times  render 
himself  amenable  to  the  orders  and  proc- 
ess of  the  court  in  the  prosecution  of  said 
charge,  and  if  convicted  shall  render  him- 
self in  execution  thereof, — continues  bound 
after  indictment  for  the  future  appearance 
of  his  principal,  until  the  court  requires  a 
different  bond,  or  his  liability  is  terminated 
by  surrendering  his  principal  to  the  au- 
thorities. Com.  V.  Allen,  50:  252,  162  S.  W. 
116,  157  Ky.  6. 

20.  An  accidental  gun-shot  wound  which 


BAILIFF  J    BAILMENT,   I. 


223 


prevents  one  under  an  indictment  for  crime, 
who  has  left  the  state  on  a  visit,  from  re- 
turning in  time  for  trial,  is  within  the 
operation  of  a  statute  allowing  relief  to 
his  sureties  for  unavoidable  casualty  or  mis- 
fortune preventing  the  principal  from  ap- 
pearing and  d^ending.  Hargis  v.  Begley, 
33:  13C,  112  S.  W.  602,  129  Ky.  477. 

(Annotated) 

21.  Sureties  on  the  bond  of  one  who, 
being  under  indictment   for  crime,  did   not 

I  appear  for  trial,  may  excuse  their  failure 
to  appear  at  the  term  of  court  at  which  the 
case  was  called,  by  showing  that  they  reiied 

"v  on  a  printed  court  calender  which  did  not 
show  the  term  at  which  the  case  was  called, 
and  that  they  were  ignorant  of  the  change 
from  the  calender  as  printed.  Hargis  v. 
Begley,  23:  136,  112  S.  W.  602,  129  Ky.  477. 

22.  The  courts  taking  possession  of  an 
accused  who  is  out  on  bail,  and  committing 
him  to  the  custody  of  the  jailer,  releases  tiie 
sureties  on  his  bond.  Com.  v.  Skaggs,  44: 
1064,  153  S.  W.  422,  152  Ky.  268. 

( Annotated ) 

23.  The  arrest  on  a  criminal  charge  of 
one  who  had  been  arrested  in  the  same 
state  ou  another  charge  and  released  on 
bail,  intermediate  the  date  of  the  bond  and 
the  time  when,  by  the  terms  thereof,  he 
was  obligated  to  appear  in  court,  and  his 
detention  until  after  such  time,  releases  the 
sureties  on  the  bond,  since  the  state  for 
whose  protection  the  bond  was  given,  itself 
rendered  performance  of  the  conditions  by 
the  prisoner  impossible.  State  v.  Funk, 
30:  211,  127  N.  W.  722,  20  N.  D.  145. 

(Annotated) 

24.  A  surety  on  a  bail  bond  is  not- re- 
leased from  liability  thereon  after  the  in- 
dictment of  his  principal,  by  the  failure  of 
tlie  court  to  take  a  new  bond  or  to  direct 
that  the  principal  shall  stand  under  his 
former  bond,  since  the  provisions  of  the 
statute  that,  upon  an  indictment  being' 
found,  the  court,  if  the  defendant  be  on 
bail,  may  order  a  bench  warrant  to  issue, 
or  commit  him  to  custody  and  fix  the 
amount  of  bail  to  be  given  by  him,  leave 
the  action  to  be  taken  within  the  discretion 
of  the  court.  Com.  v.  Allen,  50:  252,  162 
S.  W.  116,  157  Ky.  6. 

Forfeiture  of  bond. 

Evidence   of   forfeiture   of,   by   accused,   see 
Evidence,  1836 

25.  If  the  term  at  which  the  accused  is 
recognized  to  appear  adjourns  without  his 
default  having  been  entered  of  record,  the 
recognizance  cannot  thereafter  bo  forfeited, 
and  the  recognizors  will  be  discharged  from 
liability  thereunder.  State  v.  Dorr,  5:  402, 
53  S.  E.  120,  59  W.  Va.  188. 

26.  A  recognizance  given  in  a  criminal 
proceeding,  conditioned  for  the  appeaiance 
of  the  accused  before  a  circuit  court  on  the 
first  day  of  a  certain  term  thereof,  and  that 
he  will  not  depart  thence  without  leaye  of 
court,  can  only  be  forfeited  by  calling 
the  accused  upon  the  recognizance  at  some 
time  during  the  term,  and,  if  he  fails  to  ap- 
pear by  entering  his  default  of- record.  State 
v.  Dorr,  5:  402,  53  S.  E.  120,  59  W.  Va.  188. 

(Annotated) 
Digest  1-52  L.R.A.(N.S.) 


27.  A  bail  bond  under  which  one  accused 
of  a  misdemeanor,  the  punishment  for  which 
in  case  of  conviction  is  imprisonment,  is  at 
liberty,  may,  in  the  discretion  of  the  court, 
be  forfeited  if  the  defendant  appear  only 
by  attorney  at  the  time  and  place  specified 
for  trial.  State  v.  Johnson,  27:  943,  108 
Pac.  793,  82  Kan.  450.  (Annotated) 
Enforcement  of  bond. 

28.  A  statutory  bail  bond  which  is  void 
for  want  of  authority  to  execute  it  cannot 
be  enforced  as  a  common-law  obligation. 
Territory  ex  rel.  Thacker  v.  Woodring,  i: 
848,  82  Pac.  572,  15  Okla.'  203. 
Recovery  bac&  of  money  deposited  as. 

29.  Money  deposited  as  bail  to  secure  the 
release  of  another  from  custody  in  which  he 
is  illegally  detained  may  be  recovered  back, 
although  the  condition  of  its  deposit  was 
not  complied  with.  State  ex  rel.  Grass  v. 
White,  2:  563,  82  Pac.  907,  40  Wash.  563. 

(Annotated) 


fillvJ     «.'«     ,hvi 


BAILIFF. 


Contempt  by,  see  Appeal  and  Error,  1603; 

Contempt,  8. 
Competency  of,  as  juror,  see  Jury,  61. 


BAILMENT. 


/.  In  general,  1,  2. 
II.  Rights   of   bailee,   3—6. 
III.  Duty  and  liability  of  bailee,  7—25. 

As  to  agistment,  see  Agisters. 

Duty  of  owner  of  vicious  dog  to  bailee,  see 
Animals,  34,  35. 

Bank  as  gratuitous  bailee,  see  Banks,  108, 

Terms  of,  as  excusing  subpoena  duces  te- 
cum, see  Discovery  and  Inspection, 
10. 

Under  hire  and  purchase  agreement,  see 
Fixtures,  25,  26. 

Theft  by  bailee,  see  Larceny,  5. 

Wrongfully  obtaining  property  from  bailee 
as   larceny,   see   Larceny,   31. 

Liability  of  bailee  for  acts  of  servants,  see 
Master  and  Servant,  877-880,  914- 
929,  952. 

When  contract  of,  converted  into  one  of 
service,  see  Master  and  Servant,  880. 

Imputing  to  bailor  negligence  of  bailee,  see 
Negligence,  255,  256. 

Payment  by  bailor  of  claim  against  himself 
and  bailee  as  precluding  further  pro- 
ceedings against  bailee,  see  Payment, 
2. 

Right  of  bailor  paying  claim  against  him- 
self and  bailee  to  enforce  primary  li- 
ability of  bailee,  see  Payment,  2. 

As  to  warehousemen,  see  Warehousemen. 

/.   In  general. 

(See  also  same  heading  in  Digest  L.B.A. 
1-70.)         ■•'-■''■  -■"■-'   "■■"     '        ■■■■■'^ 


224 


BAI]UMENT,  II.,  111. 


AVhat  constitutes. 

1.  The  delivory  to  a  creditor  by  hia 
debtor,  who  is  a  public  warehouseman,  of  a 
receipt  covering  property  actually  contained 
in  the  warehouse  and  owned  by  the  ware- 
houseman, for  the  purpose  of  securing  the 
indebtedness  by  a  lien  upon  the  property, 
operates  in  law  to  create  the  relation  of 
bailor  and  bailee  between  the  parties,  under 
N.  D.  Laws  1901,  chap.  141,  p.  180,  Rev. 
Code,  §§  22G2-2272,  relating  generally  to 
warehousemen,  during  the  time  the  prop- 
erty remains  in  the  warehouse,  and  renders 
the  surety  on  the  warehouseman's  bond  li- 
able for  its  safe-keeping.  State  use  of 
Hart-Parr  Co.  v.  Robb-Lawrence  Co.  i6: 
227,  115  N.  W.  846.  17  X.  1).  257. 
Bailor's  right  of  action  against  third 

persons. 

2.  The  liability  of  a  third  person  for 
the  loss  of  a  horse  which  he  is  knowingly 
using  for  a  purpose  not  contemplated  in  a 
contract  of  bailment  is  not  affected  by  the 
fact  that  the  loss  is  due  to  inevitable  ac- 
cident. Palmer  v.  Mayo,  15:  428,  68  Atl. 
369,  80  Conn.  353. 

//.  Rights  of  bailee. 

(See   also   same   heading    in   Digest   L.R.A. 
1-10.) 

3.  A  bailee  for  hire  to  transport  and 
store  material  for  the  bailor,  who  contracts 
to  purchase  a  quantity  of  such  material 
from  the  bailor,  cannot  fill  his  order  from 
the  material  in  his  possession,  without  the 
consent  of  the  bailor,  and  his  attempt  to 
do  so  will  justify  termination  of  the  bail- 
ment. Atlantic  Bldg.  Supply  Co.  v.  Vul- 
canite Portland  Cement  Co.  36:  622,  96  N. 
E.  370,  203  N,  Y.   133.  (Annotated) 

4.  The  bailor,  by  the  bailment,  im- 
pliedly warrants  that  the  thing  hired  is  of 
a  character  and  in  a  condition  to  be  used  as 
contemplated  by  the  contract,  and  he  is 
liable  for  damages  occasioned  by  the  faults 
or  defects  of  the  article  hired.  Williamson 
T.  Phillipoff,  52:  412,  64  So.  269,  66  Fla. 
549. 

5.  Independently  of  special  agreement, 
express  or  implied,  the  bailor  is  not  bound 
to  make  such  repairs  as  are  rendered  neces- 
sary by  ordinary  wear  and  tear,  but  he  is 
ordinarily  bound  to  provide  that  the  article 
hired  should  be  in  good  condition  to  last 
during  the  time  for  which  it  is  hired,  and 
beyond  that  he  is  liable  only  for  extraordi- 
nary expenses  arising  from  unexpected 
causes.  Williamson  v.  Phillipoff,  52:  412, 
64  So.  269,  6«r Fla.  549.  (Annotated) 

6.  In  an  action  against  a  stranger  for 
loss  of  goods  caused  by  his  negligence,  the 
bailee  in  possession  can  recover  the  full 
value  of  the  goods,  although  he  would  have 
had  a  good  answer  to  an  action  by  the  bail- 
or for  damages  for  the  loss  of  the  thing 
bailed.  The  Winkficld,  3  B.  R.  C.  368, 
[1902]  P.  42.  Also  Reported  in  71  L.  J. 
Prob.  N.  S.  21,  50  Week.  Rep.  246,  85  L. 
T.  N.  S.  688,  18  Times  L.  R.  178,  9  Asp. 
Mar.  L.  Cas,  259.  (Annotated) 
Digest  1-52  L.R.A.(ir.S.) 


///.  Duty  and  Uabilitif  of  bailee. 

(See   also    same    heading   in    Diyext    L.H.A. 
1-10.) 

When  statute  of  limitations  begins  to  run, 
see  Limitation   of  Actjoxs,  II.  d. 

7.  A  bailee  for  hire  impliedly  under- 
takes to  keep  the  thing  hired  in  repair,  and 
must  bear  such  expenses  as  are  incident 
thereto,  where  the  use  of  the  thing  bailed  , 
is  the  essence  of  the  contract,  unless  the 
necessity  therefor   arises  from   some  defect 

in  the  thing  against  which  the  bailor   has  / 
expressly      or      impliedly      warranted      it. 
Williamson  v.  Philljlpoff."52;  412,  64  So.  269, 
66  Fla.  549. 

8.  A  bailee  for  hire  is,  in  the  absence 
of  express  stipulations  to  the  contrary, 
liable  only  pro  tanto  for  the  payment  of 
hire,  where  the  hired  chattel  is  destroyed 
without  fault  of  the  bailee  before  the  ex- 
piration of  the  period  during  which  he  was 
to  have  the  use  of  it.  Williamson  v.  Philli- 
poff, 52:  412,  64  So.  269,  66  Fla.  549. 

9.  A  bailee  cannot  relieve  himself  from 
the  duty  of  redelivering  the  property  to  the 
bailor,  by  showing  that  at  some  unknown 
time  it  had  been  stolen  by  an  unknown 
thief  from  an  undisclosed  owner,  and  that 
the  bailor  by  reasonable  inquiry  could  have 
ascertained  that  fact,  and  that  the  bailee 
had  purchased  the  property  from  one  claim- 
ing to  be  the  agent  of  such  owner.  Jensen 
v.  Eagle  Ore  Co.  33:  681,  107  Pac.  259,  47 
Colo.  306.  (Annotated) 
lioss  of  or  injury  to  property  gen- 
erally. 

Joinder  of  causes  of  action,  see  Actiox  or 

Suit,   108. 
Liability  of  carrier   for   loss  of  parcel  .left 
in  check  room,  see  Carbiehs,  688-693. 
Presumption  and  burden  of  proof,  see  Evi- 
dence, 375,  449-452. 
Opinion  evidence  as  to  negligence  of  bailee, 

see  Evidence,  1146. 
Evidence  of  costs  of  repairs  to  automobile  in 
action  for  injury  thereto,  see  Evidence, 
2438. 
Liability  of  innkeeper  as  gratuitous  bailee, 

see  Innkeepers,  21,  32. 
Theft  by  bailee,  see  Larceny,  5. 
Liability   of   bailee   for   negligence   of   serv- 
ants,  see  Mastb»  and  Servant,   914- 
918. 
Sufficiency   of   complaint   in   action   against 
bailee  for  loss  of  property   bailed,  see 
Pleading,    240. 
Question  for  jury  as  to  negligence,  sec  Tri- 
al, 591. 
Liability     of     warehousemen,     see     Ware- 
housemen, 8-10. 
10.  A  storekeeper  is  not  responsible  for 
the  theft  of  valuables  from  the  pockets  of 
clothing  of  a  customer  which   is  laid  aside 
to  try  on  garments  which  the  customer  de- 
sires    to     purchase,     where     the     customer, 
knowing  that  the  clerks  are  busy,  proceeds 
to  wait  upon  himself,  and,  to  his  knowledge, 
there  is  no  one'  but  himself  to  watch  the 

<.8.V[);A.JBr.J[  S5-I  ims^ia 


BAKER. 


225 


garments  laid  aside.  Wamser  v.  Browning, 
K.  &  Co.  lo:  314,  79  N.  E.  861,  187  N.  Y. 
87.  (Annotated) 

11.  A  vendor  of  chattels,  wlio  undertakes 
to  ship  them  to  a  consignee  and  send  the  bill 
of  hiding  to  the  buyer,  is  liable  for  their 
value  in  ease  they  are  lost  through  his  fail- 
ure to  see  that  they  reach  the  carrier,  and  to 
secure  the  bill  of  lading.  Sprinkle  v.  Brim, 
12:  679,  57  S.  E.  148,  144  N.  C.  401. 

(Annotated) 

12.  The  proprietor  of  a  bath  house,  wlio, 
for  a  consideration,  furnishes  bath  rooms, 
bathing  suits,  and  other  accessories  of  the 
bath  to  those  who  desire  to  bathe  in  the 
sea,  and  also  receives  their  money,  jewelry, 
or  other  valuables  for  safe-keeping,  is  a  de- 
positary for  hire  in  relation  thereto,  and 
is  liable  for  any  loss  occurring  from  want  of 
ordinary  care  on  his  part.  Walpert  v.  Bo- 
han,  6^828,  55  S.  E.  181,  126  Ga.  532. 

(Annotated) 

13.  One  hiring  horses  to  draw  castings 
along  a  public  road  does  not  convert  a  team 
by  detaching  it  from  the  wagon  on  which 
it  is  working,  and  attaching  it  to  one  of 
his  own  which  has  become  stalled  on  a  de- 
fective road,  to  assist  in  getting  it  out,  so 
as  to  render  him  liable  for  an  accident  to 
it  while  it  is  so  engaged.  Weller  v.  Camp, 
28:  1106,  52  So.   929,   169   Ala.  275. 

14.  A  livery-stable  keeper  is  not  liable 
for  injury  to  a  horse  by  its  getting  loose  in 
the  night  and  being  kicked  by  another 
horse,  where  it  was  tied  in  the  usual,  and 
customary  manner,  and  as  the  owner  had 
tied  it  when  he  brought  it  to  the  stable. 
Bigger  v.  Acree,  23:  187,  112  S.  W.  879, 
87  Ark.  318.  (Annotated) 

15.  A  bailee  becomes  an  insurer  for  the 
return  of  a  stallion  under  an  agreement  to 
return  the  animal  in  as  good  condition  as 
when  received,  or  to  pay  for  him.  Grady  v. 
Schweinler,  14:  1089,  113  N.  W.  1031,  16 
N.  D.  452.  (Annotated) 

16.  A  bailee  who  contracts  to  return  a 
stallion  in  as  good  condition  as  when  re- 
ceived, or  to  pay  for  him,  is  liable  for  the 
value  of  the  animal,  which  dies  of  disease 
while  in  the  bailee's  possession,  although 
without  fault  on  the  part  of  the  bailee. 
Grady  v.  Schweinler,  14:  1089,  113  N.  W. 
1031,  16  N.  D.  452. 

17.  A  contract  of  hire  between  bailor  and 
bailee,  that  the  bailee  will  return  a  stal- 
lion in  as  good  condition  as  when  received, 
or  pay  for  it,  creates  a  liability  on  the 
bailee  greater  than  that  imposed  by  law,  in 
the  absence  of  a  special  contract, — that  of 
ordinary  care.  Grady  v.  Schweinler,  14: 
1089,  113  N.  W.  1031,  16  N.  D.  452. 

18.  A  garage  keeper  to  whom  an  auto- 
mobile is  entrusted  for  repairs  is  a  bailee 
for  hire  and,  while  not  an  insurer,  is  bound 
to  use  reasonable  care  to  protect  and  pre- 
serve it.  Roberts  v.  Kinley,  45:  938,  132 
Pac.   1180,  89  Kan.   885. 

19.  The  proprietor  of  a  garage  in  which 
automobiles  are  kept  for  hire  is  not  an 
insurer  of  the  machines,  but  owes  the  duty 
to  exercise  only  ordinary  care  with  regard 
Digest  1-52  I..RJ^.(N.S.) 


thereto.     Firemen's  Fund  Ins.  Co.  v.  Schrei- 
ber,   45:  314,    135   N.   W.   507,    150   Wis.   42. 

( Annotated ) 

20.  A  garage  keeper  is  bound  to  exercise 
reasonable  or  ordinary  care  to  protect  from 
injuries  cars  kept  by  their  owners  at  his 
garage  for  hire.  McLain  v.  West  Virginia 
Automobile  Co.  48:  561,  79  S.  E.  731,  72 
W.  Va.  738.  (Annotated) 

21.  The  keeper  of  a  garage  is  not  in  the 
exercise  of  reasonable  care  in  allowing  a 
car  to  be  taken  out  of  the  garage  by  one 
whose  apparent  authority  arose  from  the 
fact  that  he  had  instructed  the  owner  in 
its  use  on  seA'eral  occasions  about  two 
months  previous.  McLain  v.  West  Virginia 
Automobile  Co.  48:  561,  79  S.  E.  731,  72 
W.  Va.  738. 

22.  A  custom  of  garage  keepers  contrary 
to  the  implied  obligation  of  reasonable  care 
for  safe-keeping,  arising  in  favor  of  an  au- 
tomobile owner  by  the  storing  of  his  car 
at  a  public  garage,  cannot  absolve  the 
garage  keeper  from  observance  of  such  care. 
McLain  v.  West  Virginia  Automobile  Co. 
48:  561,  79  S.  E.  731,  72  W.  Va.  738. 

By  fire. 

Burden  of  proof  as  to  negligence  where 
property  is  destroyed  by  fire,  see  Evi- 
dence, 452. 

Liability  of  keeper  of  livery  stable,  see 
Livery  Stables,  1. 

23.  A  warehouseman  seeking  to  avoid 
liability  for  the  loss  of  the  property  bailed 
on  account  of  its  destruction  by  fire  must 
show  the  circumstances  of  the  fire  from 
which  absence  of  negligence  on  his  part  may 
be  inferred.  Fleischman  v.  Southern  R.  Co. 
9:  519,  56  S.  E.  974,  76  S.  C.  237. 

'While  in  cold  storage. 

24.  One  contracting  to  keep  meat  in  cold 
storage  is  liable  for  loss  caused  by  its 
deterioration  in  value,  because  of  absorb- 
ing odors  from  other  substances  with  which 
it  is  permitted  to*  come  into  contact.  Smith 
V.  Diamond  Ice  &  Storage  Co.  38:  994,  118 
Pac.  646,  65  Wash.  676.  (Annotated) 

25.  Although  a  piece  of  meat  has  the 
odor  of  a  chemical  about  it  when  delivered 
to  a  cold  storage  company,  the  company 
may  be  found  negligent  in  permitting  if  to 
remain  with  the  rest  of  the  consignment 
which  it  has  undertaken  to  store,  so  as  to 
be  liable  in  case  the  whole  mass  is  impreg- 
nated and  deteriorated  in  value  by  contact 
with  such  piece,  where  the  owner  was  ab- 
sent when  the  meat  was  delivered  to  the 
storage  company  by  its  agent,  and  did  not 
know  its  condition.  Smith  v.  Diamond  Ice 
&  Storage  Co.  38:  994,  118  Pac.  646,  65 
Wash.  576. 


BAKER. 

Unfair  competition  by,  in  copying  size, 
shape,  and  condition  of  surface  of  loaf 
of  bread,  see  Unfair  Compexition,  7-9. 


228 


BAKERIES— BANKRUPTCY. 


BAKERIES. 

Police   power    as    to,     see     CoNSTlTXTTlONAL 
Law,  G91. 


BALL   GAME. 


Evidence  as  to  precautions  to  prevent  injury 

at,   see  Evidence,   1762. 
In  public  street,  see  Municipal  Corpoba- 

TioNS,  329. 
Proximate    cause   of   injury   to   patron   at, 

see  Proximate  Cause,  36. 
See  also  Baseball. 


BALLOT  BOXES. 


Failure  of  custodian  of,  to  obey  order  to 
deliver  boxes  to  clerk  of  court,  see  Con- 
tempt, 26. 

Order  to  place  at  disposal  of  officers  in  man- 
damus proceeding  to  compel  them  to 
declare  result  of  election,  see  Manda- 
mus, 81;  SuBPCENA  Duces  Tecum,  1. 


BALLOT  MACHINES. 

See  Elections,  41-47. 

♦-•-♦ 


BALLOTS. 

See  Elections,  III.  b. 


BALL   PLAYING. 


In  public  streets,  see  Municipal  Cobpoba- 

tions,  329. 
See  also  Baseball. 


BAND  STAND. 


Injury  by  article  dropping  from,  see  Amuse- 
ments, 5,  6. 


BANK  CHECH. 

Definition  of,  see  Checks,  2. 


BANKING,    ''ff^-"">    •'ir-'f.-r 

See  Banks.         ">  r.^     ,    ' 

Digest  1-52  L.R.A.(N.S.>  i. 


BANKRUPTCY. 

/.  In    general;    jurisdiction;    proced- 
ure, 1—25. 
II.  Assets;  their  collection  and  admin- 
istration,  26—96. 

a.  In    general ;    what    constitutes 

assets,   26—54:. 

b.  Avoiflance    of    prior    transfer, 

preference,   or   levy,   55— 
90. 

1.  General  effect  of  adjudica- 

tion   in    bankruptcy,    55, 
50. 

2.  Validity  of  prior  transfers 

or  liens;  preferences, 
57-90. 

a.  In  general,   57—S2. 

b.  Computation  of  period 

of   retroactive    avoid- 
ance,  83—90. 

c.  Mode  of  collecting  or  recover- 

ing  assets,    91—96. 

III.  Rights  in  assets;  title,  rights,  and 

liabilities  of  assignee  or  trustee, 
97-110. 

IV,  Claims    against    estate;     distribu- 

tion,  111-138. 

a.  What  claitns  provable;  set-offs, 
111-131. 

h.  Presentment   and   proof,    132, 
133. 

c.  Distributive  rights  and  distri- 
bution,   134—138. 
V.  Discharge ;   effect,    139—178. 
VI.  Foreign  bankruptcy  and  discharge, 

179,   180. 

Abatement  of  action  by  failure  of  trustee 
in  bankrup-tcy  to  intervene,  see  Abate- 
ment AND  Revival,  2. 

Right  of  town  to  enforce  lien  for  trust 
funds  on  property  of  bankrupt,  see 
Accession  and  Confusion,  2. 

Agreement  not  to  resort  to,  as  consideration 
for  release  of  claim  on  part  payment, 
see  Accord  and  Satisfaction,  21,  22. 

Who  may  be  heard  on  appeal  in  bankruptcy 
proceedings,  see  Appeal  and  Erkob, 
418. 

Review  of  findings  of  referee  in  bankruptcy, 
see  Appeal  and  Errob,  1012,  1013. 

Method  of  reviewing  action  of  bankruptcy 
court,  see  Appeal  and  Erbor,  51-55. 

Scope  of  review  on  appeal  in  bankruptcy 
proceedings,  see  Appeal  and  Error, 
496,  504. 

Effect  of,  on  right  to  arrest  for  debt,  see 
Arrest,  16. 

Attachment  of  funds  of  bankrupt's  estate 
in  possession  of  court,  see  Attach- 
ment, 2. 

Validity  as  against  trustee  of  agreement 
permitting  bankrupt  mortgagor  to  sell 
property,   see   Chattel   Mortgage,    18. 

Powers  of  state  court  during  bankruptcy 
proceeding,  see  Courts,   273. 

Attachment  from  state  court  during  bank- 
ruptcy proceedings,  see  Courts,  273. 

Federal  bankruptcy  court  following  state 
decisions,   see   Cottbts,   322. 

(.«.vi).A.H-i  se-i  »»»sia 


BANKRUPTCY,  I. 


^21 


Admission  of  schedules  filed  in  bankruptcy 
proceeding,  in  prosecution  against 
bankrupt  for  selling  property,  see 
Criminal  Law,  117. 

Production  of  bankrupt's  books  as  infring- 
ing privilege  against  self-crimination, 
see   CiUMiNAL   Law,   118. 

Election  of  remedy  by  trustee  in,  see  Elec- 
tion OF  Remedies,  23,  24. 

Estoppel  of  owner  to  assert  title  to  prop- 
erty as  against  purchaser  at  banlc- 
ruptcy   sale,  see  Estoppel,   117. 

Effect  of  failure  to  include  in  bankruptcy 
schedule  claim  for  damages  for  libel, 
to  bar  action  therefor,  see  Estoppel, 
121. 

Admissibility  of  records  in  bankruptcy 
proceedings,  see  Evidence,  766. 

Admissibility  of  admissions  against  inter- 
est of  owner  of  estate  against  trustee 
in  bankruptcy,  see  Evidence,   1245. 

Right  to  proceed  in  bankruptcy  against  in- 
solvent who  purchases  goods  on  credit 
without  disclosing  facts,  see  Fraud 
AND  Deceit,  22. 

Right  to  enjoin  sale  under  trust  deed  by 
bankrupt,  see  Injunction,  90. 

As  to  insolvency,  see  Insolvency. 

Change  of  title  of  insured  by  filing  petition 
in,  see  Insurance,  225,  226. 

Collateral  attack  on  judgment  in,  see  Judg- 
ment,  124. 

Conclusiveness  of  adjudication  in  bankrupt- 
cy, see  Judgment,  153. 

Effect  of  judgment  against  husband  in 
bankruptcy  proceeding  to  which  wife 
is  not  a  party  on  her  liability  as  his 
surety,  see  Judgment,  255. 

Binding  effect  on  bankrupt's  wife  of  orders 
by  referee  in  bankruptcy  disposing  of 
property  as  exempt,  see  Judgment, 
245. 

Lien  of  judgment  against  bankrupt,  see 
Judgment,  272,  319. 

Sale  of  leasehold  estate  by  trustee  in  bank- 
ruptcy as  assignment  of  lease,  see 
Landlord  and  Tenant,  37. 

Lien  of  township  on  property  of  bankrupt 
bought  with  township  funds,  see  Liens, 
3. 

Right  to  mechanics'  lien  for  services  ren- 
dered by  receiver  or  trustee  in  bank- 
ruptcy of  contractor,  see  Mechanics' 
Liens,  5. 

Effect  of  bankruptcy  of  original  contractor 
on  lien  of  materialman  or  subcontract- 
or, see  Mechanics'  Liens,  71. 

Trustee  in  bankruptcy  of  contractor  as  nec- 
essary party  in  action  to  enforce  me- 
chanics' lien,  see  Mechanics'  Liens, 
90. 

Ne  exeat  bond  to  secure  release  of  bankrupt, 
see  Ne  Exeat. 

Perjury  by  bankrupt,  see  Perjury,  8,  9. 

Right  of  conditional  vendor  as  affected  by 
bankruptcy  of  purchaser,  see  Sale, 
242. 

Instruction  as  to  consideration  of  state- 
ment by  bankrupt,  see  Trial,  964. 

Digest  1-52  L.R.A.(N.S.) 


ImpeacJiing  witness  by  showing  conviction 
for  fraudulently  concealing  property 
from  trustee  in  bankruptcy,  see  Wit- 
nesses, 162. 

I.  In  general;  jurisdiction;  procedure^ 

1.  The  release  of  the  honest,  unfortu- 
nate, and  insolvent  debtor  from  the  burden 
of  his  debts,  and  his  restoration  to  business- 
activity  in  the  interest  of  his  family  and 
the  general  public,  is  one  of  the  main  ob- 
jects of  the  bankruptcy  law  of  1898.  Har- 
die  V.  SwofVord  Bros.  Dry  Goods  Co.  20: 
785,  165  Fed.  588,  91  C.  C.  A.  426. 

2.  The  sale  of  a  bankrupt's  property 
free  from  his  wife's  inchoate  right  of 
dower  should  be  approved  if  it  can  be  made 
with  her  consent,  and  a  fair  allowance  made 
to  her  for  its  value  out  of  tlie  proceeds. 
Savage  v.  Savage,  3:  923,  72  C.  C.  A.  494, 
141  Fed.  346. 

Jurisdiction. 

Concurrent     jurisdiction     of     courts,     see 

Courts,  295. 
See  also  infra,  17,  91,  92. 

3.  That  property  of  a  bankrupt  is  lo- 
cated in  a  district  other  than  that  in  which 
bankruptcy  proceedings  against  him  are  in- 
stituted, does  not  prevent  the  court's  deter- 
mining all  liens  and  interests  adecting  it. 
Thomas  v.  Woods,  26:  1180,  173  Fed.  585, 
97  C.  C.  A.  535. 

4.  Where  bankruptcy  proceedings  are 
not  begun  within  four  months  of  the  filing 
of  a  preferential  mortgage,  so  that  the  Fed- 
eral court  has  no  jurisdiction  thereof,  the 
state  court  may,  if  the  proceedings  are  be- 
gun within  the  prescribed  time,  act  under 
a  state  statute  which  makes  such  mortgage,, 
when  properly  attacked,  operate  as  a  vol- 
untary assignment  for  the  benefit  of  all* 
creditors;  and  it  is  immaterial  that  the- 
bankrupt  has,  in  the  meantime,  secured  an. 
discharge  from  the  bankruptcy  court.  Lou- 
isville Dry  Goods  Co.  v.  Lanman,  28:  363^ 
121  S.  W.  1042,  135  Ky.  163.  (Annotated) 
AVhat  is  an  act   of  bankruptcy. 

5.  An  adjudication  of  bankruptcy 
against  a  partnership  is  not  warranted  by 
an  averment  that  the  firm,  within  four 
months,  paid  out  large  sums  of  money  in  the 
settlement  of  debts  of  the  firm,  thereby  mak- 
ing preferences  among  the  creditors.  Mills 
V.  Fisher,  16:  656,  159  Fed.  897,  87  C.  C.  A. 
77. 

"Who   may  be  adjudged  bankrupt. 

Liability  for  mistakenly  instituting  bank- 
ruptcy proceedings,  see  Malicious 
Prosecution,  14. 

6.  A  farmer  is  not  taken  out  of  the  class 
engaged  principally  in  farming,  which  can- 
not, under  the  provisions  of  the  bankrupt- 
cy act,  be  subjected  to  involuntary  bank- 
ruptcy proceedings,  by  the  fact  that  he 
maintains  cows  from  the  produce  of  his 
farm  and  that  bought  elsewhere,  and  sells 
the  milk  at  retail,  although  he  also  pur- 
chases and  distributes  milk  of  other  pro- 
ducers. Gregg  v.  Mitchell,  20:  148,  166  Fed. 
725,  92  C.  C.  A.  415.  (Annotated) 

7.  A  farmer  does  not, .by  executing  a 

•    «.. '1/    .'    ,/i  .1.4      i.t     -i       !  ■•    ;  •    ,'.i 


228 


BANKRUPTCY,  I. 


general  assignment  for  benefit  of  creditors, 
cease  to  be  a  person  engaged  chiefly  in  farm- 
ing, so  as  to  deprive  himself  of  the  excep- 
tion in  his  favor  in  tiie  bankrui)tcy  act 
which  prevents  the  institution  of  involun- 
tary proceedings  against  him.  Olive  v. 
Armour  &  Co.  21:  109,  167  Fed.  517,  93  C. 
C.  A.  153. 

8.  A  corporation  whose  principal  busi- 
ness is  making  and  constructing  arches,  walls, 
and  abutments,  bridges,  buildings,  etc.,  out  of 
concrete,  in  carrying  on  which  business  it 
buys  and  combines  together  raw  materials, 
and  supplies  the  necessary  labor,  machinery, 
and  appliances,  is  a  "corporation  engaged 
principally  in  manufacturing,"  within  the 
meaning  of  the  bankrupt  act  of  July  1, 
1898  (30  Stat,  at  L.  544,  chap.  541,  U.  S. 
Comp.  Stat.  1901,  p.  3418),  §  4,  as  amended 
by  the  act  of  February  5,  1903  (32  Stat,  at 
L.  797,  chap.  487,  U.  S.  Comp.  Stat.  Supp. 
1909,  p.  1309),  defining  the  persons  or  cor- 
porations which  may  be  adjudged  involun- 
tary bankrupts,  altliough  such  company 
makes  its  product,  and  gives  it  form  and 
shape,  at  the  place  where  it  is  to  remain. 
Friday  v.  Hall  &  Kaul  Co.  26:  475,  30  Sup. 
Ct.  ReJ).  261,  216  U.  S..  449,  54  L.  ed.  562. 

(Annotated) 

9.  Involuntary  bankruptcy  proceedings 
cannot  be  instituted  against  public-service 
corporations,  under  the  act  of  1898.  Re 
Hudson  River  Power  Transmission  Co.  33: 
454,  183  Fed.  701,  106  C.  C.  A.  139. 

( Annotated ) 
Procedure. 

10.  The  provision  of  §  7,  subdiv.  9,  of  the 
bankruptcy  act,  which  requires  a  bankrupt 
to  submit  to  examination,  contemplates  ex- 
amination under  oath.  Edelstein  v.  United 
States,  9:  236,  149  Fed.  636,  79  C.  C.  A.  328. 

11.  The  statute  permitting  the  bank- 
ruptcy court  to  require  persons  to  appear 
and  be  examined  concerning  the  acts,  con- 
duct, or  property  of  the  bankrupt  whose 
estate  is  in  process  of  administration  un- 
der this  act  does  not  authorize  an  order 
directing  one  against  whom  a  petition  in 
bankruptcy  has  been  filed,  to  appear  for  ex- 
amination, before  he  has  joined  issue  on  the 
petition,  or  the  time  has  been  fixed  for  him 
to  show  cause  why  he  should  not  be  ad- 
judged a  bankrupt,  since  prior  to  such  time 
the  estate  is  not  in  process  of  administra- 
tion; and  it  is  immaterial  that  a  receiver 
was  appointed  when  the  petition  was  filed. 
Skubinsky  v.  Bodek,  24:  985,  172  Fed.  332. 
97  C.  C.  A.  116.  (Annotated) 
Cnstody  aad  control  of  bankrupt  es- 
tate. 

12.  Property  in  the  course  of  administra- 
tion under  the  bankruptcy  act,  while  not 
exempted  from  taxation  or  freed  from  tax 
liens  or  claims  theretofore  fastened  upon 
it,  i«  nevertheless  in  custodia  legis;  and  a 
pre-existing  tax  lien  or  claim  cannot  be  con- 
verted into  a  full  title  by  the  procurement 
»f  a  tax  deed  without  the  court's  sanction. 
Eppstein  v.  Orahood,  17:  465,  156  P'ed.  42, 
84  C.  C.  A.  208.  (Annotated) 
Disest  1-52  I<.R.A.(N.S.) 


Bankruptcy   of  partnership   or   mem- 
ber thereof. 

See  also  supra,  5;   infra,   66,  70,   126,   154, 
155,  177,  17S. 

13.  A  partnership,  under  the  bankruptcy 
act  of  July  1,  1898,  chap.  541,  30  Stat,  at 
L.  544,  U.  S.  Comp.  Stat.  1901,  p.  3418,  is  a 
distinct  entity,  separate  from  the  partners 
who  compose  it,  which  owns  its  property 
and  owes  its  debts  apart  from  the  individ- 
ual property  of  its  members,  which  it  does 
not  own,  and  apart  from  the  individual 
debts  of  its  members,  which  it  does  not  owe; 
and  it  may  be  adjudged  bankrupt  although 
the  partners  who  compose  it  are  not  so  ad- 
judicated. Re  Bertenshaw,  17:  886,  157  Fed. 
363,  85  C.  C.  A.  61. 

14.  A  partnership  is  insolvent  under  the 
bankruptcy  act  of  July  1,  1898,  chap.  541, 
30  Stat,  at  L.  544,  U.  S.  Comp.  Stat.  1901, 
p.  3418,  if  the  partnership  property  is  in- 
sufficient to  pay  the  partnership  debts,  be- 
cause by  §  1  (19)  of  the  act  it  is  a  person, 
and  because  under  §  1(15)  any  person  is 
insolvent  whose  property  is  insufficient  to 
pay  its  debts,  and  since  the  only  property  a 
partnership  has  or  can  convey  or  apply  to 
the  payment  of  its  debts  is  partnership 
property,  and  the  onlj'  debts  it  owes  are  the 
partnership  debts.  Re  Bertenshaw,  17:  886, 
157  Fed.  303,  85  C.  C.  A.  61. 

15.  Partnership  creditors  may  pursue 
unadjudicated  partners  by  actions  at  law 
and  suits  in  equity  before,  during,  and  after 
the  proceedings  in  bankruptcy  against  the 
partnership.  Re  Bertenshaw,  17:  886,  157 
Fed.  363,  85  C.  C.  A.  61. 

16.  An  adjudication  of  bankruptcy 
against  a  partnership  is  not  warranted  by 
the  preference  of  a  firm  creditor  by  a  part- 
ner out  of  his  own  property,  although  his 
credit  is  the  sole  asset  of  the  partnership. 
Mills  V.  Fisher,  16:  656,  159  Fed.  897,  87 
C.  C.  A.  77.  (Annotated) 

17.  A  bankruptcy  court  is  without  ju- 
risdiction, after  determining  that  a  part- 
nership is  bankrupt,  but  that  none  of  the 
partners  is  a  bankrupt,  summarily  to  take 
arid  administer  in  the  proceedings  against 
the  partnership  the  individual  estate  of  a 
solvent  partner  without  his  consent.  Re 
Bertenshaw,  17:  886,  157  Fed.  363,  85  C.  C. 
A.  61. 

18.  The  provision  of  the  bankruptcy  act 
of  July  1,  1898,  chap.  541,  §  5f,  30  Stat,  at 
L.  548,  U.  S.  Comp.  Stat.  1901,  p.  3424,  that 
the  net  proceeds  of  partnership  property 
shall  be  appropriated  to  the  payment  of 
partnership  debts,  and  the  net  proceeds  of 
the  individual  estate  of  each  partner  to 
the  payment  of  his  individual  debts,  enun- 
ciates a  rule  of  administration  of  partner- 
ship and  individual  property;  and  it  gov- 
erns only  such  partnership  and  such  indi- 
vidual property  as  the  alleged  bankrupts 
own  at  the  time  the  petition  is  filed,  and 
that  which  has  been  previously  transferred 
fraudulently  or  to  make  a  voidable  prefer- 
ence. Sargent  v.  Blake,  17:  1040,  160  Fed. 
57,  87  C.  C.  A.  213. 

19.  The  trustee  of  the  estate  of  a  bank- 
rupt partnersbi  p  is  not  the  trustee  of  the 


BANKRUPTCY,  II.  a^ 


individual  property  of  the  unadjudicated 
partners,  and  has  no  right  to  administer 
it;  nor  is  he  the  trustee  or  the  assignee  of 
the  claims  of  the  partnership  creditors,  nor 
their  agent  or  attorney  to  collect  those 
claims  out  of  other  than  the  partnershij) 
property;  and  where  no  partner  is  adjudged 
bankrupt,  the  trustee  has  no  power  to  en- 
force such  claims  against  any  property  ex- 
cept that  of  the  partnership,  or  against  any 
unadjudicated  partner  or  other  person  who 
has  none  of  the  partnership  property.  Re 
Bertenshaw,  17:  886,  157  Fed.  3G3,  85  C.  C. 
A.   61. 

20.  Members  of  a  partnership  which  has 
committed  an  act  of  bankruptcy  may  be  re- 
quired by  the  court  to  bring  their  property 
into  the  bankruptcy  proceedings  for  admin- 
istration, although  proceedings  ""vo.'.ld  ;iot, 
under  the  statute,  lie  against  them  individ- 
ually because  they  belong  to  an  exempt 
class,  or  have  committed  no  act  of  bank- 
ruptcv.  Dickas  v.  Barnes,  5:  654,  110  Fed. 
849,  72  C.  C.  A,  261.  (Annotated) 

21.  A  creditor  of  a  partnership  which  is 
insolvent  and  without  assets  may  secure  a 
bankruptcy  adjudication  against  one  of  its 
members  who  applies  his  whole  separate 
estate  in  satisfaction  of  a  liability  of  the 
partnership.  Mills  v.  Fisher,  16:  656,  159 
Fed.  897,  87  C.  C.  A.  77. 

22.  The  discharge  of  the  partnership 
where  the  partners  are  not  adjudicated  bank- 
rupt does  not  discharge  the  partners  from 
their  liability  for  the  partnership  debts. 
Re  Bertenshaw,  17:  886,  157  Fed.  363,  85  C. 
C.  A.  61. 

23.  One  whose  bonds  have  been  converted 
and  consumed  by  a  brokerage  firm  cannot, 
upon  the  theory  that  the  tort  is  both  joint 
and  several,  so  as  to  permit  him  to  proceed 
in  contract,  prove  his  claim  in  bankruptcy 
proceedings  both  against  the  estate  of  the 
firm  and  that  of  an  individual  partner  who 
is  not  shown  to  have  participated  in  the 
conversion  pr  benefited  thereby.  Reynolds 
V.  New  York  Trust  Co.  39:  391,  188  Fed. 
611,   110   C.   C.  A.  409.  (Annotated) 

24.  The  trustee  in  bankruptcy  of  the 
surviving  member  of  a  partnership  takes 
title  to  the  firm  property  as  well  as  that 
belonging  to  him  individually.  Hewitt  v. 
Hayes,  27:  154,  90  N.  E.  985,  204  Mass.  586. 

25.  The  property  of  a  partnership  which 
has  not  been  adjudicated  a  bankrupt  does 
not  pass  to  the  trustee  of  the  estate  of  an 
individual  member  who  has  been  adjudged 
a  bankrupt,  so  as  to  defeat  an  attachment 
lien  of  a  firm  creditor,  levied  on  firm  assets 
within  four  months  prior  to  the  adjudica- 
tion of  the  individual  as  a  bankrupt,  under 
§  67  of  the  Federal  bankruptcy  act  of  1898, 
which  provides  that  all  attachments  ob- 
tained against  a  person  who  is  insolvent, 
at  any  time  within  four  months  prior  to 
the  filing  of  a  petition  in  bankruptcy 
against  him,  shall  be  deemed  void  in  case 
he  is  adjudged  a  bankrupt,  and  the  property 
afi'eoted  shall  pass  to  the  trustee  unaffected 
by  the  attachment.  American  Steel  &  W.  I 
Co.  V.  Coover,  30:  787,  111  Pac.  217,  27  j 
Okla.  131.  (Annotated) 
Digest   1-52   L.R.A.(N.S.) 


II.  Assets;  their  collection  and  adminis- 
tration. 

a.  In  general;  what  constitutes  assets. 

Impounding  assets  of  nonresident  alien  in 
bankruptcy  proceeding,  see  Conflict 
OF  Laws,  135. 

Contempt  in  refusing  to  obey  order  to  turn 
over   funds,   see   Coxtempt,   39,    78. 

Concealment  of  assets  as  continuing  of- 
fense, SCO  Criminal  Law,  20. 

Sufficiency  of  evidence  to  show  that  money 
on  deposit  was  property  of  bankrupt 
corporation,  see  Evidence,  2092. 

Evidence  as  to  property  belonging  to  bank- 
rupt not  reduced  to  possession,  see  Evi- 
dence, 1760. 

When  title  passes  so  as  to  give  trustee  in 
bankruptcy  right  to  property,  see  Sale, 
24. 

See  also  supra,  19,  24,  25;  infra,  136. 

26.  The  grantor  in  a  deed  of  trust  to  se- 
cure unmatured  debts  less  in  amount  than 
the  value  of  the  property  retains  an  inter- 
est 'n  the  property  which  will  pass  to  tlie 
trustee  upon  the  institution  of  bankruptcy 
proceedings  against  him.  Re  Jersey  Island 
Packing  Co.  2:  560,  138  Fed.  625,  71  C.  C.  A. 
75. 

27.  A  sura  of  money  paid  by  the  lessee 
of  a  hotel  upon  the  acceptance  of  hit?  pro- 
posal to  lease  the  hotel  for  a  term  of  fifteen 
years,  and  pay  the  sum  so  paid  as  an  ad- 
vance payment  on  rent,  and  keep  such  ad- 
vance good  during  the  first  five  years  of 
the  term,  with  the  privilege  of  reducing  it 
at  the  rate  of  one  third  thereof  per  year 
for  the  third,  fourth,  and  fifth  years  of  the 
term,  is  not  a  security,  nor  is  it  a  bonus  or 
independent  consideration  for  the  lease,  but 
is  an  advance  payment  of  rent  to  become 
due  for  the  third,  fourth,  and  fifth  years 
of  the  term,  and  under  th-e  lease,  which  pro- 
vides that  a  re-entry  by  the  lessor  for  con- 
ditions broken  shall  not  work  a  forfeiture 
of  the  rent  due  or  to  become  due,  where  the 
lessor  has  terminated  the  lease  within  the 
first  year,  as  was  his  right  thereunder,  on 
account  of  the  bankruptcy  of  the  lessee,  the 
trustee  in  bankruptcy  cannot  recover  the 
sum  so  paid.  Galbraith  v.  Wood.  50:  1034, 
144  N.  W.  945,  124  Minn.  210.      (Annotated) 

28.  The  trustee  in  bankruptcy  of  one  who 
purchased  property  while  insolvent,  and 
with  knowledge  that  he  could  not  pay  for  it, 
cannot  claim  the  percentages  allowed  by  the 
bankruptcy  law  out  of  the  proceeds  of  a  sale 
of  such  property  by  the  receiver,  since,  as 
the  property  was  obtained  by  fraud,  the  pro- 
ceeds thereof  form  no  part  of  the  estate  of 
the  bankrupt,  where  such  sale  has  been  re- 
scinded by  the  original  vendors  and  demand 
made  for  the  proceeds.  Gillespie  v.  J.  C. 
Piles  &  Co.  44:  I,  178  Fed.  886,  102  C.  C. 
A.  120. 

29.  A  lien  acquired  under  the  state  law 
by  an  assignee  for  creditors,  upon  property 
which  had  been  conditionally  sold  to  the 
assignor  by  an  instrument  not  filed  with  the 
register   of   deeds    as    required   by    statute, 


230 


BANKRUPTCY,  II.  a. 


may,  upon  order  of  the  court  of  bank- 
ruptcy, be  retained  by  the  trustee  for  tlie 
benefit  of  the  creditors,  upon  his  succeeding 
the  assignee  by  the  institution  of  bank- 
ruptcy proceedings  against  the  assignor,  in 
view  of  that  provision  of  the  bankruptcy 
law  which  provides  that  claims  which,  for 
want  of  record,  are  not  valid  liens  as 
against  the  claims  of  creditors  of  the  bank- 
rupt, shall  not  be  liens  against  his  estate. 
Re  Fish  Bros.  Wagop  Co.  26:  433,  164  Fed. 
553,  90  C.  C.  A.  427.  (Annotated) 

30.  A  bankruptcy  court  which  attoiTijtts 
to  sell  encumbered  property  of  the  bank- 
rupt free  from  liens  may  charge  the  ex- 
pense of  the  sale  against  the  general  es- 
tate of  the  bankrupt  if  one  exi.sts,  and  per- 
mit the  lien  holder  to  take  the  entire  pro- 
ceeds of  the  sale  if  they  do  not  exceed  the 
amount  of  his  claim.  Re  Harralson  29: 
737,  179  Fed.  490,  103  C.  C.  A.  70. 

(Annotated) 

31.  A  bankrupt  and  the  receiver  of  his 
property  may  enter  into  a  nonwaiver  agree- 
ment with  an  insurer  of  tlie  property  for 
the  purpose  of  securing  an  adjustment  of 
■a  claim  under  an  insurance  policy  which 
is  claimed  to  have  been  forfeited  because 
-of  failure  to  comply  with  the  iron-safe 
■clause.  Day  v.  Home  Ins.  Co.  40:  652,  58 
-•So.  549,  177  Ala.  600. 

Insurance;  surrender  value. 

"Statute  permitting  bankrupt  to  assign  in- 
surance to  his  wife  free  from  claims  of 
creditors,  see  Insurance,  449,  450. 

32.  Policies  of  life  insurance  on  the  life 
•of  the  bankrupt  wliich  do  not  have  a  cash 
surrender  value  available  to  the  bankrupt 
at  tlie  time  ot  bankruptcy  as  a  cash  asset 
'do  not  pass  to  the  trustee  in  bankruptcy, 
■under  the  bankrupt  act  of  Julv  1,  1898  (30 
Stat,  at  L.  565,  chap.  541),  §"70a,  subd.  5, 
which,  though  investing  the  trustee  with 
the  title  to  property  which,  prior  to  the 
filing  of  the  petition,  he  could  by  any  means 
have  transferred,  or  which  might  have  been 
levied  upon  and  sold  under  judicial  proc- 
ess against  him,  provides  that  a  bankrupt, 
when  the  cash  surrender  value  of  insurance 
policies  having  such  value  has  been  ascer- 
tained, may  pa;,  or  secure  such  sum  to  the 
trustee,  and  continue  to  hold  and  own  them 
free  from  claims  of  creditors,  and  that  oth- 
erwise the  policies  shall  pass  to  the  trus- 
tee as  assets.  Burlingham  v.  Crouse,  46: 
148,  33  Sup.  Ct.  Rep.  564,  228  U.  S.  459,  57 
L.  ed.  920.  (Annotated) 

33.  The  time  when  the  petition  in  bank- 
ruptcy is  filed  fixes  the  cash  surrender 
value  of  the  insurance  policies  mentioned 
in  the  proviso  in  the  bankrupt  act  of  July 
1,  1898  (30  Stat,  at  L.  565,  chap.  541),  § 
70a,  subd.  5,  that  a  bankrupt,  when  the  cash 
surrender  value  of  insurance  policies  hav- 
ing such  value  has  been  ascertained,  may 
pay  or  secure  such  sum  to  the  tnvstee  and 
continue  to  hold  and  own  them  free  from 
the  claims  of  creditors,  otherwise  the  pol- 
icies shall  pass  to  the  trustee  as  assets,  and 
hence  the  death  of  the  bankrupt  between 
the  time  of  the  filing  of  the  petition  and 
the  date  of  the  adjudication  does  not  make 
Digest  1-52  I..R.A.(N.S.) 


the  proceeds  of  the  policies,  over  and  above 
the  cash  surrender  value,  assets  in  the 
hands  of  the  trustee,  although  that  section 
also  provides  that  the  trustee,  upon  liis 
appointment  and  qualification,  becomes 
vested  by  operation  of  law  with  the  title 
of  the  bankrupt  as  of  the  date  of  adjudi- 
cation. Everett  v.  Judson,  46:  154,  33  Sup. 
Ct.  Rep.  568,  228  U.  S.  474,  57   L.  ed.  927. 

34.  The  absolute  assignment  by  a  bank- 
rupt of  policies  of  life  insurance  on  his 
life  does  not  exclude  them  from  the  oper- 
ation of  the  proviso  in  the  bankrupt  act  of 
July  1,  1898,  §  70a,  subd.  5,  that  a  bank- 
rupt, when  the  cash  surrender  value  of  pol- 
icies having  such  a  value  has  been  ascer- 
tained, may  pay  or  secure  such  sum  to  the 
trustee,  and  continue  to  hold  and  own  them 
free  from  the  claims  of  creditors,  otherwise 
thoy  shall  pass  to  the  trustee  as  assets; 
and  such  policies,  therefore,  if  they  have 
no  cash  surrender  value,  do  not  pass  to  the 
trustee  in  bankruptcy.  Burlingham  v. 
Crouse,  46:  148,  33  Sup.  Ct.  Rep.  564,  228 
U.  S.  459,  57  L.  ed.  920. 

35.  The  death  of  one  holding  a  policy  of 
insurance  upon  his  life,  payable  to  his  per- 
sonal representatives  or  estate,  after  the 
filing  of  a  petition  in  bankruptcy  against 
him,  and  before  adjudication,  destroys  the 
surrender  value  of  the  policy,  and,  it  hav- 
ing been  capable  of  assignment  by  him,  and 
passing  to  the  bankruptcy  trustee  under 
§  70a-5  of  the  bankruptcy  act,  there  is  noth- 
ing upon  which  the  proviso  to  tliat  section 
allowing  redemption  by  payment  to  the 
trustee  of  the  surrender  value  of  the  policy 
can  act,  and  therefore  the  whole  proceeds  of 
the  policy  become  assets  in  the  hands  of  the 
trustee.  Re  Andrews,  41:  123,  191  Fed.  325, 
112  C,  C.  A.  69.  (Annotated) 

36.  The  proviso  in  §  70  of  the  bankrupt- 
cy act,  that  when  a  bankrupt  shall  have  an 
insurance  policy  with  a  cash  surrender 
value  payable  to  himself  or  his  estate,  he 
may,  under  certain  circurastanc|s,  pay  such 
value  to  the  trustee  and  retain  the  policy, 
does  not  interfere  with  the  operation  of  the 
provision  in  the  section  that  the  trustee 
shall  be  vested  by  operation  of  law  with 
any  property  which  the  bankrupt  could  by 
any  means  have  transferred,  and  therefore 
a  policy  the  beneficiary  in  which  may  be 
changed  by  the  bankrupt  at  pleasure  will 
pass  to  the  trustee.  Re  Orear,  30:  990,  178 
Fed.  632,  102  C.  C.  A.  78.  (Annotated) 

37.  A  statute  permitting  a  married 
woman  to  take  out  insurance  on  her  hus- 
band's life  does  not  render  exempt,  under 
the  bankruptcy  act,  the  policy  taken  out 
by  him  and  payable  to  her  if  she  survives 
him,  otherwise  to  his  estate  or  beneficiary 
designated  by  him,  and  which  may  be  sur- 
rendered by  him  for  cash  or  value.  Re  White, 
26:  451,  174  Fed.  333,  98  C.  C.  A.  205. 

38.  The  trustee  has  a  right  to  surrender 
insurance  on  the  life  of  the  bankrupt,  ami 
receive  the  proceeds,  where  the  policy  pro- 
vides that  it  shall  be  payable  to  his  wife  if 
she  survive  him,  otherwise  to  his  estate,  or 
to  any  beneficiary  to  be  named  by  him,  and 
which  permitB  the  insured  himself  at  any 


BANKRUPTCY,  II.  a. 


231 


time  to  surrender  the  policy  for  paid-up  in- 
surance or  other  value.  Re  White,  26:  451, 
174  Fed.  333,  98  C.  C.  A.  205.  (Annotated) 
Insurance  agent's  commissions  on  re- 
neivals. 
3fl.  A  trustee  in  bankruptcy  of  an  insur- 
ance agent  has,  under  the  provisions  of  the 
bankruptcy  act,  a  right  to  his  commissions 
on  renewals  as  property  which  may  be  trans- 
ferred, where  his  contract  gives  him  such 
commissions  for  a  term  of  years,  ami,  in 
case  of  his  death,  gives  them  to  his  estate, 
although  the  contract  is  terminable  by  the 
company  vipon  his  failure  to  comply  with 
its  conditions.  Re  Wright,  18:  193,  157  Fed. 
544,  85  C.  C.  A.  206.  (Annotated) 

Estate  held  by  entireties. 

40.  The  trustee  in  bankruptcy  of  a  man 
cannot  reach  any  portion  of  an  estate  held 
by  him  and  his  wife  by  entireties  during 
the  life  of  the  wife.  Re  Meyer,  36:  205,  81 
Atl.  145,  232  Pa.  89.  (Annotated) 
Contingent  interest  under  -nrill. 

41.  The  assignee  in  bankruptcy  is  enti- 
tled to  the  interest  of  one  who,  living  at 
the  death  of  testator,  is  a  beneficiary  in  the 
will  giving  the  income  of  property  to  his 
father  for  life,  and,  upon  the  father's  death, 
giving  the  property  to  him  if  living.  Clarke 
V.  Fay,  27:  454,  91  N.  E.  328,  205  Mass.  228. 

42.  A  trustee  in  bankruptcy  will  not 
take  the  interest  of  a  beneficiary  under  a 
will,  if  it  depends  upon  the  death  of  an 
aunt  dying  without  issue  after  the  death  of 
the  father  of  the  beneficiary,  and  while  the 
beneficiary  is  yet  alive.  Clarke  v.  Fay, 
27:  454,  91  N.  E.  328,  205  Mass.  228. 

43.  The  estate  of  a  grandchild  under  the 
will  of  its  grandfather,  which  is  dependent 
upon  its  surviving  its  father,  although  con- 
tingent, passes  to  his  trustee  in  bank- 
ruptcy, under  a  statute  providing  that  ex- 
pectant estates,  which  include  contingent 
future  estates,  in  which  the  person  to  whom 
tliey  are  limited  to  take  effect  remains  un- 
certain, are  descendible,  devisable,  and 
alienable.  Clowe  v.  Seavey,  47:  284,  102  N. 
E,  521,  208  N.  Y.  496.  (Annotated) 
Cause    of   action   generally. 

44.  A  cause  of  action  which  would  sur- 
vive and  pass  to  the  personal  representative 
of  the  plaintiff,  so  that  the  avails  thereof 
would  be  distributed  in  administration  of 
his  estate,  will  pass  to  his  trustee  in  bank- 
ruptcy,  under  the  provisions  of  §  70  of  the 
bankruptcy  act  of  1898  (30  Stat,  at  L.  566, 
chap.  541,  U.  S.  Comp.  Stat.  1901,  p.  3451). 
Cleland  v.  Anderson,  5:  136,  92  N.  W.  306, 
96  X.  W.  212,  98  N.  W.  1075,  66  Neb.  252, 
105  N.  W.  1092,  75  Neb.  273. 

45.  A  right  of  action  for  tort  is  not  prop- 
erty, within  the  meaning  of  the  national 
bankruptcy  act;  and,  even  though  an  action 
is  pending  thereon,  such  right  does  not  pass 
to  the  trustee  in  bankruptcy.  Cleland  v. 
Anderson,  5:  136,  92  N.  W.  306,  96  N.  W. 
212,  98  N.  W.  1075,  66  Neb.  252,  105  N.  W. 
1092,  75  Neb.   273. 

46.  The  right  of  action  given  by  Neb. 
Comp.  Stat.  1901,  chap.  91a,  §  11,  to  recover 
damages  caused  by  a  wrongful  conspiracy 
to  prevent  competition,  is  for  injury  to 
Digest   1-52  L.R.A.(N.S.) 


"business,  employment,  or  property"  and, 
under  the  national  bankruptcy  act,  §  6, 
passes  to  an  assignee  in  bankruptcy.  Cle- 
land V.  Anderson,  5:  136,  92  N.  W.  306, 
96  N.  W.  212,  98  N.  W.  1075,  66  Neb.  252, 
105  N.  W.  1092,  75  Neb.  273. 

47.  Malicious  attachment  of  corporate 
property  is  not  a  personal  tort,  but  gives 
rise  to  a  cause  of  action  for  injury  to  prop- 
erty, which  passes  to  the  trustee  in  bank- 
ruptcy of  the  corporation,  upon  its  adjudi- 
cation as  a  bankrupt,  and  upon  his  qualify- 
ing as  such  trustee.  Hansen  Alercantile 
Co.  V.  Wvman,  P.  &  Co.  21:  727,  117  N.  W. 
926,  105  "Minn.  491.  (Annotated) 
Bankrupt's  interest  in  pending  ac- 
tion. 

48.  The  interest  of  a  bankrupt  in  a 
pending  action,  which  he  might  sell  and  as- 
sign and  of  which  his  creditors  might  obtain 
the  benefit  on  administration  of  his  estate, 
is  "property"  within  the  provision  of  the 
national  bankruptcy  act  July  1,  1898  (30 
Stat,  at  L.  566,  chap.  541,  U.  S.  Comp.  Stat. 
1901,  p.  3451),  §  70,  subd.  5,  rather  than  a 
"right  of  action"  under  subd.  6,  where  the 
state  statutes  make  a  distinction  between  a 
plaintiff's  interest  in  a  pending  action,  and 
his  cause  of  action  before  suit  brought, 
making  one  assignable  in  cases  where  the 
other  is  not.  Cleland  v.  Anderson,  5:  136, 
92  N.  W.  306,  90  N.  W.  212,  98  N.  W.  1075, 
66  Neb.  252,  105  N.  W.  1092,  75  Neb.  273. 

49.  The  interest  of  a  bankrupt  in  a 
pending  action  to  recover  damages  sus- 
tained by  reason  of  an  unlawful  conspiracy 
to  prevent  competition  passes  to  the  trus- 
tee; and  a  purchaser,  and  an  assignee  there- 
of, claiming  under  a  trustee's  sale,  may 
satisfy  the  claim.  Cleland  v.  Anderson, 
5:  136,  92  N.  W.  306,  96  N.  W.  212,  98  N.  W. 
1075,  66  Neb.  252,  105  N.  W.  1092,  75  Neb. 
273. 

Action  for  personal  injuries. 

50.  A  right  of  action  for  a  negligent  in- 
jury to  the  person  does  not  vest  in  the  bank- 
ruptcy trustee  under  statutory  provisions 
that  he  shall  be  vested  with  title  to  all 
property  which  the  bankrupt  could  have 
transferred,  or  which  could  be  levied  upon 
and  sold  under  judicial  proceedings  against 
him,  and  rights  of  actions  arising  upon  con- 
tracts, or  from  injury  to  property.  Sibley 
v.  Nason,  12:  1173,  81  N.  E.  887,  'l96  Mass. 
125.  (Annotated) 

51.  The  claim  for  loss  of  time  which  one 
negligently  injured  by  another  is  entitled 
to  include  in  his  recovery  of  damages  can- 
not be  separated  from  the  claim  for  the  in- 
jury, so  as  to  pass  to  a  bankruptcy  trustee 
appointed  after  injury,  but  before  entry  of 
judgment.  Sibley  v.  Nason,  12:  1173,  81  N, 
E.  887,  196  Mass.   125. 

Action  for  slander  or  libel. 

52.  A  claim  for  damages,  based  on 
slander  or  libel,  being  a  peculiarly  person- 
al action,  and  nonassignable,  and  therefore 
nonenforceablc  by  a  trustee  in  bankruptcj% 
need  not  be  placed  on  the  schedule  of  a  pe- 
titioner in  bankruptcy.  Irion  v.  Knapp,  43: 
940,  60  So.  719,  132  La.  60.        (Annotated) 


232 


BANKRUPTCY,  II.  b,  1,  2. 


Corporate   assets. 

See  also  siipra,  47. 

53.  Unpaid  subscriptions  to  the  stock  of 
a  corporation  constitute  assets  in  the  hands 
of  its  trustee  in  bankruptcy,  even  though 
the  stock  has  been  transferred  from  the 
possession  of  the  original  subscribers.  Per- 
kins V.  Cowles,  30:  283,  108  Pac.  711,  157 
Cal.  625. 

54.  The  bankruptcy  trustee  of  a  cor- 
poration cannot  enforce  the  statutory 
double  liability  of  stockholders,  since  it  is 
not  a  corporate  asset  and  does  not  pass  to 
the  trustee,  but  remains  subject  to  the  de- 
mands of  creditors,  if  the  corporate  assets 
are  insuflBcient  to  discharge  their  claims. 
Walsh  V.  Shanklm,  31:  365,  102  S.  W.  295, 
125  Ky.  715.  (Annotated) 

b.  Avoidance  of  prior  transfer,  prefer- 
ence, or  levy. 

1.   General  effect  of  adjudication  in 
bankruptcy. 

Surrender  of  void  preference  to  permit  proof 
of  claim,  see  infra,  129-131. 

Om  prior  attacliiuent  or  conveyance 
for   creditors. 

55.  Service  of  process  under  a  petition  in 
bankruptcy  does  not  give  the  bankruptcy 
court  constructive  possession  of  property 
formerly  belonging  to  the  bankrupt,  but 
which,  at  the  time  of  such  service,  is  in  pos- 
session either  of  a  sheriff  under  attachment 
from  a  state  court,  or  of  a  trustee  to  whom 
the  bankrupt  has  conveyed  the  property  for 
the  benefit  of  creditors,  so  as  to  prevent  the 
levying  upon  it  of  a  writ  of  replevin  sued 
out  of  the  state  court.  Morning  Teleg.  Pub. 
Co.  V.  S.  B.  Hutchinson  Co.  8:  1232,  109  N. 
W.'42,  146  Mich.  38.  (Annotated) 
Prior  action  to  rescind  sale  for  fraud. 

56.  The  institution  of  a  bankruptcy  pro- 
ceeding does  not  draw  to  the  jurisdiction 
of  the  bankruptcy  court  property  which 
has  previously  been  seized  under  process 
from  a  state  court  in  a  suit  to  rescind 
for  fraud  its  sale  to  the  bankrupt,  if  the 
title  is  adjudged  by  the  state  court  to  be 
in  the  vendor;  and  the  bankruptcy  court 
cannot  therefore  properly  dispose  of  the 
property.  Linstroth  Wagon  Co.  v.  Ballew, 
8:  1204,  149  Fed.  960,  79  C.  C.  A.  470. 

(Annotated) 

2.  Validity  of  prior  transfers  or  liens; 
preferences. 

a.  In  general. 

Time  for  appeal  from  decree  on  bill  in 
equity  by  trustee  to  set  aside  transfer, 
see  Appeai,  and  Error,  135. 

Review  on  appeal  of  findings  as  to,  see 
Appeal  and  Error,  979. 

Satisfaction  of  note  by  acceptance  of 
amount  due  which  payee  is  obliged  to 
refund  under  bankruptcy  proceedings, 
see  Bills  and  Notes,  81. 

Disest  1-52  I<.B.A.(N.S.) 


Right  of  trustee  to  impeach  unfiled  chattel 
mortgage  given  by  bankrupt,  see  Chat- 
tel Mortgage,  39. 

Validity  of  mortgage  of  after-acquired 
property  as  against  trrustee  in  bank- 
ruptcy, see  Chattel  Mortgage,  12,  15. 

Jurisdiction  of  action  to  avoid  2>reference8, 
see  Courts,  295. 

Right  to  dower  after  avoidance  of  convey- 
ance in  bankruptcy  proceedings  against 
husband,   see   Dower,   13. 

Equitable  jurisdiction  of  suit  by  bankrupt 
to  recover  preferences,  see  Equity,  23. 

Enforcement  against  trustee,  of  mortgage 
of  bankrupt's  exemptions,  see  Exemp- 
tions, 6,  21. 

Pleading  in  action  to  recover  property,  see 
Pleading,  417-420. 

See  also  supra,  5;  infra,  102,  121. 

57.  In  order  to  constitute  a  person  a 
purchaser  for  valuable  consideration  with- 
in the  exception  of  the  English  bankruptcy 
statute  declaring  transfers  void  as  against 
a  trustee  in  bankruptcy  except  where  "in 
favor  of  a  purchaser  or  encumbrancer  in 
good  faith  or  for  valuable  consideration," 
it  is  not  necessary  that  either  money  or 
physical  property  should  be  given;  the  re- 
lease of  a  right  or  the  compromise  of  a 
claim  may  be  sufficient.  Re  Pope,  4  B.  R. 
C.  775,  [1908]  2  K.  B.  109.  Also  Reported 
in  77  L.  J.  K.  B.  N.  S.  767,  98  L.  T.  N.  S. 
775,  24  Times  L.  R.  556,  52  Sol.  Jo.  458, 
15  Manson,  201.  (Annotated) 

58.  A  postnuptial  settlement  of  his 
own  property,  executed  by  a  bankrupt  with- 
in two  years  of  his  bankruptcy,  in  favor  of 
his  wife  and  children,  in  consideration  of 
the  wife's  refraining  from  taking  divorce 
proceedings  against  him,  is  within  the  ex- 
ception of  that  section  of  the  English  bank- 
ruptcy act  which  avoids,  as  against  the 
trustee  in  bankruptcy,  transfers  made  by 
the  bankrupt  except  where  made  "in  favor 
of  a  purchaser  or  encumbrancer  in  good 
faith  or  for  valuable  consideration."  Re 
Pope,  4  B.  R.  C.  775,  [1908]  2  K.  B.  169. 
Also  Reported  in  77  L.  J.  K.  B.  N.  S.  767, 
98  L.  T.  N.  S.  775,  24  Times  L.  R.  556,  52 
Sol.   Jo.   458,   15  Manson,   201. 

59.  The  provision  of  the  bankruptcy  act 
that  the  trustee  shall  be  vested  with  all  the 
rights  of  a  lien  creditor  speaks  as  of  the 
time  of  the  bankruptcy,  and  he  cannot 
therefore  assert  his  lien  to  defeat  rights 
secured  before  such  time.  Big  Four  Imple- 
ment Co.  V.  Wright,  47:  1223,  207  Fed.  535, 
125  C.  C.  A.  577. 

60.  For  the  purpose  of  determining 
whether  or  not  a  transfer  of  the  proceeds  of 
a  fire-insurance  policy  is  voidable  under  the 
provisions  of  the  bankruptcy  act,  the  time 
when  the  collection  and  payment  are  made, 
and  not  that  when  the  contract  therefor  was 
made,  is  to  be  considered,  ^n  the  absence 
of  actual  notice  to  creditors  of  the  agree- 
ment, under  a  contract  by  a  debtor  to  carry 
a  certain  amount  of  insurance  on  his  stock 
for  the  protection  of  his  creditor,  and  which 
"assigns  by  these  presents"  the  said  amount 
of  insurance  as  collateral  security  for  the 


BANKRUPTCY,  II.  b,  2. 


233 


debt,  where  the  policies  themselves  are  not 
transferred,  but  are  to  be  held  by  the  debtor, 
who,  in  case  of  loss,  agrees  to  enforce  the 
policies  and  pay  over  to  the  creditor  suffi- 
cient to  liquidate  his  indebtedness.  Long 
V.  Farmers'  State  Bank,  g:  585,  147  Fed.  360, 
77  C.  C.  A.  538.  (Annotated) 

61.  Acceptance  by  one  who  has  transmit- 
ted a  mortgage  to  an  insolvent  banker  for 
collection,  of  a  deed  to  real  estate  and  notes 
of  strangers  in  satisfaction  of  the  proceeds 
of  the  mortgage,  which  the  banker  trans- 
mitted with  instructions  to  accept  the  same 
upon  hearing  that  the  bank  had  closed  its 
doors,  amounts  to  treating  the  transaction 
as  an  indebtedness,  and  terminates  the  trust 
relation,  where  the  banker  dissipates  the 
proceeds  of  the  collection  and  closes  the 
bank  without  funds  into  which  the  proceeds 
can  be  traced;  and  the  owner  of  the  mort- 
gage is  therefore  not  entitled  to  a  prefer- 
ence over  other  creditors,  biit  may  be  re- 
quired to  surrender  his  security  to  the  bank- 
er's trustee  in  bankruptcy,  who  is  appointed 
within  four  months  thereafter.  Atherton 
V.  Green,  30:  1053,  179  Fed.  806.  103  C.  C. 
A.  298.  (Annotated) 

G2.  A  mortgage  which,  by  state  law,  is 
required  to  be  recorded  to  be  valid  against 
certain  classes  of  persons,  is  within  the  pro- 
vision of  the  bankruptcy  law  making  invalid 
against  the  trustee  unrecorded  conveyances 
which  are  required  to  be  recorded  by  the 
state  law,  although  it  might  be  valid  for 
some  purposes  witliout  being  recorded.  Loe- 
scr  V.  Savings  Deposit  Bank  &  T.  Co.  18: 
1233,  148  Fed.  975,  78  C.  C,  A.  597. 

()3.  A  ])olicy  on  property  mortgaged  to 
secure  past  indebtedness  within  four  months 
of  bankruptcy,  so  as  to  constitute  a  void- 
able preference,  secured  at  the  instance  of 
the  mortgagee,  running  to  the  mortgagor, 
with  standard  mortgage  clause  attached, 
bears  prior  to  default  by  the  mortgagor 
the  infirmity  of  the  mortgage,  so  that,  in 
case  of  loss,  the  proceeds  go  to  the  bank- 
ruptcy trustee  ratlier  than  to  the  mort- 
gagee, although  the  premium  was  advanced 
bj'  the  mortgagee,  and  the  proceeds  of  the 
policy  were  less  than  the  mortgage  debt. 
Brown  City  Sav.  Bank  v.  Windsor,  41:  ioia, 
198    Fed.   *28,    117    C.   C.   A.    136. 

( Annotated ) 

04.  The  conveyance  by  a  bankrupt  to  his 
wife  of  real  estate  which  he  had  purchased 
with  her  funds,  but  held  in  his  own  name, 
cannot  be  interfered  with  by  the  bankruptcy 
trustee,  in  the  absence  of  anything  to  estop 
her  from  claiming  the  benefit  of  the  trust. 
Blake  v.  Meadows,  30:  i,  123  S.  W.  868,  225 
Mo.  1. 

65.  llie  payment  by  the  maker  of  a 
note  to  the  holder  in  exoneration  of  an 
accommodation  indorser,  within  four 
months  of  bankruptcy,  is  a  preference  to 
the  indorser  which  may  be  recovered  by  the 
trustee  under  §  60,  subdivision  a  and  b.  of 
the  bankruptcy  act.  Piatt  v.  Ives,  45: 
io58,    86    Atl.    579,    86    Conn.    690. 

(Annotated) 

66.  In  a,  suit  by  the  trustee  in  bank- 
ruptcy of  a  partnership  to  recover  a  void- 
Digest   1-52  Ii.R.A.(N.S.) 


able  preference  knowingly  obtained  by  a 
creditor,  to  authorize  a  recovery,  it  must 
be  shown  that  the  firm  and  the  partners 
individually  were  also  insolvent  at  the  time 
the  judgment  was  suffered  to  be  entered 
against  it.  Rodolf  v.  First  Nat.  Ban-k,  41 : 
204,  121  Pac.  629,  30  Okla.  631. 

67.  A  trustee  in  bankruptcy  has  no 
right  to  set  aside  contracts  made  by  the 
bankrupt  with  money  fraudulently  obtained, 
by  which  an  insurance  company,  in  consid- 
eration of  a  present  cash  premium,  under- 
took to  pay  him  annuities  beginning  at  a 
designated  future  time,  where  the  company 
acted  in  good  faith  without  notice  of  tlie 
source  of  the  funds,  since  it  acquired  rights 
and  advantages  under  the  transaction  of 
which  it  could  not  be  deprived.  Mutual  L. 
Ins.  Co.  v.  Smith,  33:  439,  184  Fed.  1,  106 
C.  C.  A.  593. 

Intent  to  prefer   er   defraud. 

68.  The  intent  of  an  insolvent  in  paying 
a  debt  is  immaterial  under  §  60b  of  the 
bankruptcy  act  making  voidable  preferences 
given  within  four  months  of  banki'uptcy 
proceedings,  if  the  person  benefited  had 
reasonable  cause  to  believe  that  he  intended 
thereby  to  give  a  preference.  Schmidt  v. 
Bank  of  Commerce,  33:  558,  110  Pac.  613, 
15  N.  M.  470.  (Annotated) 

69.  Intentional  transfers  by  insolvents 
to  secure  or  pay  pre-existing  debts,  within 
four  months  prior  to  the  filing  of  a  petition 
in  bankruptcy,  which  are  not  voidable  as 
preferences  under  the  bankruptcy  act  of 
July  1,  1898,  chap.  541,  §  67e,  30  Stat,  at  L. 
564,  U.  S.  Comp.  Stat.  1901,  p.  3449,  or  vio- 
lative of  other  provisions  of  law,  and  which 
are  made  without  intent  to  hinder,  delay,  or 
defraud  creditors  more  than  such  securities 
or  payments  necessarily  have  that  effect,  do 
not  evidence  an  intent  to  hinder,  delay,  or 
defraud  creditors,  within  the  meaning  of 
that  section.  Sargent  v.  Blake,  17:  1040,  160 
Fed.  57/»87  C.  C.  A.  213. 

70.  The  application,  with  the  consent  of 
all  the  partners,  of  the  partnership  prop- 
erty to  the  payment  of  an  individual  debt 
of  a  partner,  within  four  months  of  the  fil- 
ing of  a  petition  in  bankruptcy,  and  while 
the  partners^  and  the  partnership  are  insol- 
vent, does  not  evidence  any  intent  to  hin- 
der, delay,  or  defraud  the  creditors  of  the 
partnership,  within  the  meaning  of  §  67e  of 
the  bankruptcy  law  (act  Julv  1,  1898,  chap. 
541,  30  Stat,  at  L.  564,  U.  S.  Comp.  Stat. 
1901,  p.  3449)  ;  and  it  is  not  void  or  void- 
able, where  the  creditor  paid  has  no  rea- 
sonable cause  to  believe  that  a  preference  is 
intended  therebv.  Sargent  v.  Blake,  17: 
1040,  160  Fed.  57,  87  C.  C.  A.  213. 

(Annotated) 
Creditor's   knowledge    or   belief. 
Review  on  appeal  of  findings  as  to,  see  Ap- 
peal AND  Error,   979. 

71.  Under  §  60,  subds.  "a"  and  "b"  of 
the  bankruptcy  act  as  amended,  where  an 
insolvent  debtor  procures  or  suffers  a  jiulg- 
ment  to  be  entered  against  himself  witliin 
four  months  before  the  filing  of  the  pctitioij 
in  bankruptcy,  and  the  judgment  then  op- 
erates as  a  preference,  the  preference  is  not 


234 


BANKRUPTCY,  II.  b,  2. 


voidable  by  the  trustee,  unless  it  appears  1 
that  the  creditor,  at  the  time  the  judgment 
was  entered,  had  reasonable  cause  to  be- 
lieve that  the  enforcement  of  the  judgment 
would  affect  a  preference.  Galbraith  v. 
Whitaker,  43:  427,  138  N.  W.  772,  119  Minn. 
447. 

72.  Where,  under  §  60,  subds.  "a"  and 
"b"  of  the  bankruptcy  act  as  amended,  an 
insolvent  debtor  makes  a  transfer  of  any  of 
his  property,  and  the  effect  is  a  prefer- 
ence of  any  creditor,  such  preference  is 
voidable  by  the  trustee,  and  the  amount 
thereof  may  be  recovered,  if  it  appears  that 
the  creditor  receiving  the  preference  had,  at 
the  time  of  the  transfer,  reasonable  cause 
to  believe  that  such  transfer  would  effect  a 
preference.  Galbraith  v.  Whitaker,  43:  427, 
138  N.  W.  772,  119  Minn.  447. 

73.  In  determining  whether  a  creditor 
had  reasonable  cause  to  believe  a  transfer 
by  the  debtor  would  effect  a  preference 
within  the  meaning  of  the  bankruptcy  act, 
facts  which  are  sufficient  to  put  an  ordi- 
narily prudent  man  upon  inquiry  as  to  his 
debtor's  solvency  charge  such  person  with 
all  the  knowledge  he  could  have  acquired  by 
the  exercise  of  reasonable  diligence.  Gal- 
braith v.  Whitaker,  43:  427,  138  N.  W.  772, 
119   Minn.   447. 

74.  Where  creditors  -who  were  compelled 
to  bring  suit  against  the  debtor  were 
requested  not  to  levy  execution  on  the 
judgment  obtained,  and  told  that  in  case 
they  did  so  bankruptcy  proceedings  would, 
be  begun,  took  no  steps  to  ascertain  if  the 
insolvency  necessary  to  justify  bankruptcy 
proceedings  in  fact  existed,  but  levied  exe- 
cution on  personal  property  of  the  debtor 
and  sold  the  same  thereunder,  although  on 
the  day  following  the  execution  bankruptcy 
proceedings  were  begun,  it  is  not  so  conclu- 
sively shown  that  the  creditors  at  the  time 
of  the  execution  sale  had  reasonable  cause 
to  believe  it  would  effect  a  prefei'ence  as 
to  require  the  supreme  court  to  render  judg- 
ment in  favor  of  the  trustee  in  bankruptcy 
and  against  such  creditors.  Galbraith  v. 
Whitaker,  43:  427,  138  N.  W.  772,  119  Minn. 
447. 

75.  While  a  mortgage,  or  a  lien  volun- 
tarily created  by  an  insolvent,  is  a  prefer- 
ential transfer  within  the  meaning  of  the 
bankruptcy  act  of  July  1,  1898,  chap.  541, 
§  60a,  30  Stat,  at  L.  562.  U.  S.  Comp.  Stat. 
1901,  p.  3445,  it  is  nevertheless  not  voidable 
under  §  60b,  unless  the  creditor  who  receives 
it  or  is  benefited  thereby  had  reasonable 
cause  to  believe  that  it  was  intended  to  give 
a  preference.  Coder  v.  Arts,  15:  372,  152 
Fed.  943,  82  C.  C.  A.  91. 

76.  Knowledge,  by  the  creditor  at  the 
time  he  files  a  chattel  mortgage  for  record, 
that  the  debtor  is  insolvent  and  contem- 
plates a  disposition  of  his  property  for  the 
benefit  of  creditors,  will,  under  the  amend- 
ment of  1903  to  §  60  of  the  bankruptcy  act, 
avoid  the  transfer  if  bankruptcy  proceed- 
ings are  instituted  within  four  months 
thereafter,  although  he  did  not  have  reason- 
able cause  to  believe  that  a  preference  was 
intended  at  the  time  of  the  record,  because 
Digest  1-52  i:^B.A.(N.S.) 


the  instrument  had  been  executed  long  prior 
thereto.  First  Nat.  Banlc  v.  Connett,  5: 
148,  142  Fed.  33,  73  C.  C.  A.  219. 

77.  One  who  has  executed  his  accommo- 
dation notes  to  secure  money  for  a  corpora- 
tion upon  its  executing  a  mortgage  upon  its 
property  as  security  to  him,  under  tlie 
agreement  that  the  notes  shall  be  paid  out 
of  the  deposit  account  of  the  corporation, 
cannot  hold,  as  against  the  trustee  in  bank- 
ruptcy of  the  corporation,  payments  upon 
such  notes,  made  witliin  four  months  of  the 
institution  of  the  bankruptcy  proceedings, 
out  of  such  accoimt,  witli  knowledge  on  his 
part  of  the  company's  insolvency  in  excess 
of  his  security.  Claridge  v.  Evans,  25:  144, 
118  N.  W.  198,  803,  137  Wis.  218. 

78.  The  president  of  a  corporation,  who, 
to  relieve  himself  from  liability  as  indorser 
on  its  notes,  causes  it  to  pay  them  within 
four  months  of  tlie  institution  of  bankruptcy 
proceedings  against  it,  knowing  it  to  be  in- 
solvent, may  be  required  to  make  good  the 
amount  to  the  trustee.  Kobusch  v.  Hand, 
18:  660,  156  Fed.  G60,  84  C.  C.  A.  372. 

79.  An  officer  of  an  insolvent  corpora- 
tion, having  full  knowledge  of  its  affairs, 
who  pays  a  debt  to  himself  within  four 
months  of  the  institution  of  bankruptcy 
proceedings  against  it,  will  be  held  to  have 
had  reasonable  cause  to  believe  that  a 
preference'  was  intended,  so  as  to  render  the 
payment  voidable  under  §  60a  of  the  bank- 
ruptcy act.  Claridge  v.  Evans,  25:  144,  118 
N.  W'.  198,  803,  137  Wis.  218. 

Set-off  by  bank  against  deposit. 

80.  The  set-off  by  a  bank  against  a  de- 
positor's account  of  a  note  which  it  bona  fide 
holds  against  him  is  not  a  transfer  or  pref- 
erence within  the  provisions  of  the  bank- 
ruptcy act;  and  it  will  therefore  be  upheld 
in  favor  of  both  the  bank  and  the  indorsei 
from  whom  the  note  was  received,  although 
made  within  four  months  of  the  time  the 
depositor  becomes  bankrupt.  Booth  v. 
Prete,  20:  863,  71  Atl.  938,  81  Conn.  636. 

(Annotated) 
Transfer   or   mortgage   to   secure   pre- 
existing debt. 

81.  A  transfer  by  an  insolvent,  within 
four'months  prior  to  the  filing  of  a  petition, 
for  the  purpose  of  securing  or  paying  a 
pre-existing  debt,  without  any  intent  or 
purpose  to  affect  other  creditors  injuriously 
beyond  the  necessary  effect  of  the  security, 
is  lawful,  if  not  violative  of  other  provi- 
sions of  law,  and  it  does  not  evidence  any 
intent  to  hinder,  delay,  or  defraud  creditors, 
within  the  meaning  of  bankruptcy  act  July 
1,  1898,  chap.  541,  §  67e,  30  Stat,  at  L.  564, 
U.  S.  Comp.  Stat.  1901,  p.  3449.  Coder  v. 
Arts,  15:  372,  152  Fed.  943,  82  C.  C.  A.  91. 

(Annotated) 

82.  A  transfer  or  mortgage  made  by  a 
person  adjudged  a  bankrupt,  to  secure  a 
pre-existing  debt,  within  four  months  of  the 
filing  of  the  petition,  is  not  void,  under 
bankruptcy  act  July  1,  1898,  chap.  541,  § 
67e,  30  Stat,  at  L.  564,  U.  S.  Comp.  Stat. 
1901,  p.  3449,  unless  it  was  either  made  with 
the  intent  on  his  part  to  hinder,  delay,  or 
defraud  his  creditors,  or  some  of  them,  or 


BANKRUFICY,  II.  c. 


235 


is  held  void  as  against  his  creditors  by  the 
laws  of  the  state,  territory,  or  district  in 
wliich  the  property  is  situated.  Coder  v. 
Arts,  15:  372,  152  Fed.  943,  82  C.  C.  A.  91. 

b.  Computation  of  period  of  retroactive 
avoidance. 

Conflicting  findings  as  to  time  of  payment 
by  bankrupt,  see  Trial,  1138. 

83.  The  transfer  of  the  proceeds  of  a 
sale  of  property,  to  be  applied  on  a  loan, 
although  within  four  months  of  the  insti- 
tution of  bankruptcy  proceedings  against 
the  assignor,  is  not  a  voidable  transfer  if 
made  in  accordance  with  an  agreement  at 
the  time  of  the  loan,  entered  into  more  than 
four  months  before  such  proceedings,  to 
transfer  the  proceeds  wlien  received,  where 
a  present  equitable  assignment  was  created 
by  the  agreement,  with  nothing  but  the 
transfer  remaining  to  be  done.  Godwin  v. 
Murchison  Nat.  Bank,  17:  935,  59  S.  E.  154, 
145  N.  C.  320.  (Annotated) 

84.  The  taking  possession  by  the  cred- 
itor, within  four  months  of  the  bankruptcy 
of  the  debtor,  of  securities,  either  negotiable 
by  delivery  or  indorsed  in  blank,  which  the 
debtor  had,  prior  to  the  four  months'  period, 
set  apart  at  the  creditor's  request  in  a 
package  marked  "escrow"  for  the  creditor's 
account,  and  deposited  in  his  safe-deposit 
vaults  to  secure  his  drafts  upon  the  credit- 
or, notifying  the  creditor  of  the  transaction 
and  sending  him  a  list  of  the  securities, 
which  were  approved  by  the  creditor,  is 
not  a  voidable  preference  under  the  bank- 
ruptcy law;  since,  after  taking  possession, 
the  creditor  may  be  regarded  as  holding 
both  by  way  of  mortgage  and  by  way  of 
pledge,  and  his  possession  may  be  regarded 
as  relating  back  to  the  time  when  his 
right  to  take  it  was  created.  Sexton  v. 
Kessler  &  Co.  40:  639,  172  Fed.  535,  97  C. 
C,  A.  161.  (Annotated) 

85.  Where,  under  the  state  law,  a  chattel 
mortgage  must  be  recorded  to  be  valid 
against  creditors  it  is  required  to  be  record- 
ed, within  tlie  meaning  of  the  amendment  of 
1903  to  §  60a  of  the  bankruptcy  act,  de- 
fining an  illegal  preference,  where  the  other 
conditions  concur,  as  a  transfer  by  an  in- 
solvent within  four  months  of  the  filing  of 
a  petition  in  bankruptcy  against  him,  and 
providing  that,  where  the  preference  is  in  a 
transfer,  the  period  of  four  months  shall  not 
expire  until  four  months  after  the  recording 
or  registering  of  the  transfer,  "if  by  law 
such  recording  or  registering  is  required." 
First  Nat.  Bank  v.  Connett,  5:  148,  142  Fed. 
33,  73  C.  C.   A.  219.  (Annotated) 

86.  The  validity  of  an  unrecorded  chat- 
tel mortgage  as  against  a  trustee  in  bank- 
ruptcy is  not  determinable  by  the  state  law 
since  the  amendment  of  1903  to  §  60  of  the 
bankruptcy  law,  which  provides  that,  in 
case  of  preference  in  a  transfer,  the  period 
of  four  months  shall  commence  to  run  at 
the  time  of  recording;  but,  if  the  transfer 
is  required  by  the  state  law  to  be  record- 
ed, it  is  not  to  be  regarded  as  made  until 
Digest  1-52  I<.R.A.(N.S.) 


placed  on  record.     First  Nat.  Bank  v.  Con- 
nett, 5:  148,  142  Fed.  33,  73  C.  C.  A.  219. 

87.  Where,  under  the  state  law,  the 
rights  under  an  unrecorded  chattel  mort- 
gage are,  where  possession  is  not  taken  un- 
der it,  merely  inchoate,  the  time  of  record- 
ing or  taking  possession  is  the  date  from 
which  to  reckon  the  four  months  in  deter- 
mining whether  or  not  there  has  been  a 
voidable  preference  under  the  bankruptcy 
law.  First  Nat.  Bank  v.  Connett,  5:  148, 
142  Fed.  33,  73  C.  C.  A.  219. 

88.  The  recording  within  a  few  days  of 
the  institution  of  bankruptcy  proceedings 
against  the  mortgagor  of  a  mortgage  which 
had  been  given  long  before  that  time,  to 
secure  future  advances,  and  the  recording 
of  which  had,  by  oversight,  been  neglected, 
does  not  bring  the  transaction  within  the 
operation  of  §  60a  of  the  bankruptcy  act, 
defining  a  preference,  and  providing  that 
wliere  a  preference  consists  of  a  transfer, 
the  required  period  of  four  months,  neces- 
sar.y  to  validate  the  transaction  against 
creditors,  shall  not  expire  until  four  months 
after  its  registry.  Claridge  v.  Evans,  25: 
144,  118  N.  W.  198,  803,  137  Wis.  218. 

(Annotated) 

89.  The  filing  within  four  months  of 
bankruptcy  of  a  conditional  sale  contract 
executed  some  time  previously  is  not  a 
preference  which  is  avoided  by  the  bank- 
ruptcy act.  Big  Four  Implement  Co.  v. 
Wright,  47:  1223,  207  Fed.  535,  125  C.  C.  A. 
577.  (Annotated) 

90.  Where  a  creditor  procures  a  judg- 
ment against  an  insolvent  debtor,  and  there- 
after procures  execution  thereon  to  be  is- 
sued and  levied  on  personal  property  of  the 
debtor,  and  at  the  execution  sale  such  prop- 
erty is  sold  and  the  proceeds  of  the  sale 
paid  to  the  creditor  in  satisfaction  of  the 
debt,  such  execution  sale  and  payment  of 
the  proceeds  thereof  constitute  a  transfer  of 
his  property  by  the  debtor,  within  the 
meaning  of  those  words  as  used  in  the  bank- 
ruptcy act.  Galbraith  v.  Whitaker,  43:  427, 
138  N.  W.  772,  119  Minn.  447.     (Annotated) 

c.  Mode  of  collecting  or  recovering 
assets. 

91.  The  United  States  district  court  has 
jurisdiction,  in  a  summary  proceeding,  to 
order  one  who,  by  direction  of  a  receiver  of 
property  of  a  bankrupt  appointed  by  such 
court,  sold  the  bankrupt's  property,  to  turn 
over  the  proceeds  of  the  sale  to  a  trustee  in 
bankruptcy.  Mason  v.  Wolkowich,  10:  765, 
150  Fed.  699,  80  C.  C.  A.  435. 

92.  A  court  of  bankruptcy  may,  by  sum- 
mary process,  require  those  who  assert  ti- 
tle to,  or  an  interest  in,  property  which 
has  rightfully  come  into  its  possession  and 
control  as  part  of  the  bankrupt's  estate,  to 
present  their  claims  to  that  court,  and,  the 
notice  being  reasonable,  may  proceed  to  ad- 
judicate the  merits  of  such  claims.  Epp- 
stein  V.  Orahood,  17:  465,  156  Fed.  •12,  84  C. 
C.  A.  208. 


236 


BANKRUPTCY,  III. 


Right  of  creditor  or  trustee  to  sue. 

Conditions  precedent  to  trustee's  right  to 
enforce  stockholder's  liability,  see  Cor- 
porations, 366,  367. 

Right  of  trustee  in,  to  sue  for  partition, 
see  Partition,  4-7. 

93.  A  creditor  of  one  discharged  in  bank- 
ruptcy cannot  maintain  a  suit  to  set  aside 
an  alleged  fraudulent  transfer  of  the  prop- 
erty of  the  bankrupt,  although  made  more 
than  four  months  prior  to  the  filing  of  the 
petition  in  bankruptcy;  but  the  right  to  sue 
for  and  subject  such  property  to  the  pay- 
ment of  the  bankrupt's  debts  is  vested  alone 
in  the  trustee,  and  his  failure  to  bring  such 
a  suit  within  the  time  prescribed  by  law 
does  not  transfer  the  right  to  do  so  to  the 
creditor.  Ruhl-Koblegard  Co.  v.  Gillespie, 
10 :  305,  56  S.  E.  898,  61  W.  Va.  584. 

(Annotated) 

94.  Special  authority  from  the  bank- 
ruptcy court  is  not  necessary  to  authorize 
a  trustee  to  bring  actions  to  collect  assets, 
notwithstanding  the  bankruptcy  act  pro- 
vides that  trustees  shall  collect  the  prop- 
erty of  the  estate  under  direction  of  the 
court.  Walsh  v.  Shanklin,  31:  365,  102  S. 
W.  295,  125  Ky.  715. 

95.  A  trustee  in  bankruptcy  has  a  right 
to  recover  money  which  has  been  deposited 
in  bank  by  the  bankrupt,  for  the  benefit  of 
all  his  creditors.  Wagner  v.  Citizens'  Bank 
&  T.  Co.  28:  484,  122  S.  W.  245,  122  Tenn. 
164. 

Right   of   bankrupt   to    sue. 

96.  A  corporation  cannot  maintain  an 
action  for  malicious  attachment  of  its  cor- 
porate property  after  it  has  been  adjudged 
a  bankrupt,  and  while  a  trustee,  who  has 
been  duly  appointed,  is  in  possession  of  its 
property,  and  is  engaged  in  the  adminis- 
tration of  its  estate.  Hansen  Mercantile 
Co.  V.  Wyman,  P.  &  Co.  21:727,  117  N. 
W.  926,  105  Minn.  491. 

III.  Rights  in  assets  ^  title,  rights,  and 
liabilities  of  assignee  or  trustee. 

Right  of  trustee  in  bankruptcy  to  intervene 
on  appeal  in  action  by  bankrupt,  see 
Appeal  and  Error,  113. 

Right  of  bank  which  has  undertaken  to 
hold  bankrupt's  deposit  as  a  fund  for 
creditors  to  set-oif  deposit  against  its 
own  claim,  see  Banks,  79. 

Jurisdiction  of  suit  by  trustee  against 
stockholders  of  corporation,  see  Coubts, 
23. 

Estoppel  to  claim  property  as  against  trus- 
tee in  bankruptcy,  see  Estoppel,   147. 

Garnishment  of  funds  in  hands  of  trustee, 
see  Garnishment,  28. 

Liability  for  interest  of  one  aiding  receiv- 
er in  selling  property  of  bankrupt  in 
suit  by  bankrupts'  trustee  to  recover 
proceeds,  see  Interest,  3. 

Effect  of  failure  to  record  conditional  sale 
to  make  it  ineffectual  against  trustees 
in  bankruptcy  of  vendee,  see  Sale,  49. 

97.  A  trustee  in  bankruptcy  may  be 
charged  with  the  value  of  assets  which  never 
Digest  1-52  I..R.A.(N.S.) 


came  into  his  possession,  if  he  failed  in  his 
duty  to  got  them  into  possession.  Re  Re- 
inboth,  16:  341,  157  Fed.  672,  85  C.  C.  A. 
340.  (Annotated) 

98.  The  petition  of  a  trustee  in  bank- 
ruptcy that  the  proceeds  of  an  unauthorized 
sale,  by  a  receiver,  of  the  bankrupt  s  proper- 
ty be  turned  over  to  him,  is  a  ratification 
of  the  sale.  Mason  v.  Wolkowich,  10:  765, 
150  Fed.  699,  80  C.  C.  A.  435. 

99.  One  who  aids  a  receiver  of  a  bank- 
rupt's property  in  disposing  of  it,  and  who 
receives  the  proceeds,  indorsing  checks,  and 
giving  receipts  in  his  own  name,  cannot  ab- 
solve himself  from  complying  with  the 
court's  order  to  turn  them  over  to  a  trustee 
in  bankruptcy,  on  the  ground  that  he  paid 
them  to  the  receiver's  attorney,  without 
showing  that  he  was  not  a  principal  actor  in 
the  transaction,  and  had  authority  to  pay 
them  to  the  attorney.  Mason  v.  Wolkowich, 
10:  765,   150  Fed.  699,  80  C.  C.  A.  435. 

100.  A  trustee  in  bankruptcy  cannot  de- 
feat the  enforcement  of  a  lien  on  the  prop- 
erty which  came  to  his  hands  because  it  will  . 
deprive  him  of  compensation  for  his  services. 
Smith  V.  Au  Gres  Twp.  9:  876,  150  Fed.  257, 
80  C.  C.  A.  145. 

101.  A  bankrupt  mortgagor  has  such  an 
interest  in  the  equity  of  redemption  that  a 
parol  agreement  for  its  extension  between 
him  and  the  mortgagee  is  valid  if  the  trus- 
tee has  not  appropriated  it  as  an  asset  of 
the  estate.  Dow  v.  Bradbury,  44:1041,  85 
Atl.  896,  110  Me.  249. 

Title  acquired  by  trustee. 

As  to  what  passes  to  assignee  for  benefit  of 
creditors,  see  Assignment  for  Cred- 
itors, 12. 

See  also  infra,   136. 

102.  A  trustee  in  bankruptcy  takes  title 
to  the  bankrupt's  property  which  has  been 
conveyed  in  fraud  of  creditors,  and  contrary 
to  the  terms  of  the  bankruptcy  act,  sub- 
ject to  outstanding  equities  not  lost  by 
estoppel  or  fraud,  to  which  the  title  was 
subject  in  the  hands  of  the  bankrupt.  Blake 
v.  Meadows,  30:  i,  123  S.  W.  868,  225  Mo.  1. 

lOo.  The  proceeds  of  goods  bought  with- 
out intent  to  pay  for  them  may  be  recovered 
by  the  vendor  from  the  purchaser's  trustee 
in  bankruptcy,  who  sold  them  under  direc- 
tion of  the  court  as  perishable  property  of 
the  bankrupt  purchaser.  Gillespie  v.  J.  C. 
Piles  &  Co.  44:1,  178  Fed.  886,  102  C.  C.  A. 
120. 

104.  The  deed  of  a  trustee  in  bankruptcy 
of  property  which  had  been  conveyed  to  the 
bankrupt  by  warranty  deed  to  secure  a 
debt  which  was  afterwards  paid  conveyed 
no  title,  although  no  defeasance  was  record- 
ed, where  the  purchaser  from  the  trustee 
had  actual  notice  tnat  the  convej'ance  to 
the  bankrupt  was  for  security.  VaJlely  v. 
First  Nat.  Bank,  5:  387,  106  N.  W.  127,  14 
N.  D.  580.  (Annotated) 

105.  A  mortgage  executed  by  the  true 
owner  of  property  should  be  sustained 
against  one  who  had  theretofore  purchased 
the  proi^erty  from  a  trustee  in  bankruptcy, 
where  such  owner  had  conveyed  the  prop- 
erty by  warranty  deed  to  the  bankrupt  to 


BANKRUPTCY,  TV.  a. 


23r 


secure  a  debt  which  was  paid  before  the 
latter's  failure,-  and  the  purchaser  from 
the  triistee  had  actual  notice  that  the  con- 
veyance to  the  bankrupt  was  for  security. 
Vallely  v.  First  Nat.  Bank,  5:  387,  106  N. 
W.  127,  14  N.  D.  580. 

106.  Where,  under  the  local  law,  it  is  not 
against  public  policy  to  permit  the  trans- 
fer of  exemptions  from  execution,  and  mort- 
gages may  cover  after-acquired  property, 
a  mortgage  by  one  of  his  exemptions,  to 
apply  when  it  is  sought  to  be  enforced,  will 
be  enforced  against  the  claim  of  his  trus- 
tee in  bankruptcy.  Re  National  Grocery 
Co.  30:  982,  181  Fed.  33,  104  C.  C.  A.  47. 
Time  of  vesting  of  title. 

107.  Corporate  stock  of  a  bankrupt  vests 
in  the  trustee  by  relation  on  the  date  of 
the  commencement  of  the  proceedings, 
where  it  is  in  the  hands  of  a  creditor  under 
a  parol  pledge.  French  v.  White,  2:  804, 
62  Atl.  35,  78  Vt.  89. 

108.  The  title  to  the  property  involved  in 
bankruptcy  proceedings  remains  in  the 
bankrupt  until  the  appointment  and  quali- 
fication of  the  trustee;  the  title  of  the  trus- 
tee, when  appointed,  relating  back  as  of 
the  date  of  the  adjudication  in  bankruptcy. 
Christopherson  v.  Harrington,  41:276,  136 
N.  W.  289,  118  Minn.  42. 

109.  During  the  interval  between  the  ad- 
judication in  bankruptcy  and  the  appoint- 
ment of  the  trustee,  the  vendor  in  an  exec- 
utory contract  for  the  sale  of  land  to  the 
bankrupt  may  serve  notice  upon  the  bank- 
rupt for  the  termination  and  cancelation  of 
tlie  contract  for  default  in  payment  of  the 
purchase  price,  as  provided  by  statute,  and 
the  notice  so  served  and  given  is  valid  and 
eliectual,  unless  the  result  of  fraud  or  col- 
lusion with  the  bankrupt  and  for  the  pur- 
pos  of  defeating  the  rights  of  creditors. 
Christopherson  v.  Harrington,  41:  276,  136 
N.  W.  289,  118  Minn.  42.  (Annotated) 

110.  The  title  to  a  leasehold  held  by  a 
bankrupt  vests  in  the  trustee  only  upon 
some  act  of  acceptance  on  his  part,  notwith- 
standing the  provision  of  the  bankruptcy 
act  that  the  trustee  shall  upon  his  appoint- 
ment be  vested  with  the  title  of  the  bank- 
rupt as  of  the  date  he  was  adjudged  a  bank- 
rupt, and  therefore  acceptance  of  rent  from 
him  prior  to  that  time  will  not  waive  a 
right  to  re  enter  under  the  terms  of  the 
lease,  for  devolution  of  the  term  by  opera- 
tion of  law.  Re  Frazin,  33:  745,  183  Fed. 
28,  105  C.  C.  A.  320.  (Annotated) 

IV.  Claims  against  estate;  distribution, 

(See  alfto  same  heading  in  Digest  L.R.A . 
1-70.J 

Right  of  creditor  to  appeal  from  order  al- 
lowing claims  against  estate,  see  Ap- 
peal AND  Error,  86. 

Claims  against  assignee  for  creditors,  see 
Assignment  for  Creditors,  14. 

^Allowance  of  claim  against  estate,   as  evi- 

r        dence  in  action  to  hold  stranger  liable 

thereon,  see  Evidence,  2035. 
Digest  1-52  I..R.A.(N.S.) 


Interest  on   claims  allowed  in  bankruptcy, 

see  Interest,   26. 
Conclusiveness    of    allowance    of    claim    by 

bankruptcy  court,  see  Judgment,  76. 
See  also  supra,  23. 

a.  What  claims  provable;  set-offs. 

Claims  discharged,  see  infra,  160-178. 
Power     of    Congress     to    terminate    dower 

rights   on   bankruptcy   of   husband,   see 

Dower,  14. 
Conflict   of   laws   as   to   right   of   dower   in 

land    of    bankrupt,    see    Conflict    of 

Laws,  106,  107. 

111.  That  one  lending  money  to  a  bank- 
rupt on  mortgage  security  acts  as  trustee 
for  a  bank  does  not  prevent  the  allowance 
of  a  claim  against  the  bankrupt's  estate. 
Ohio  Valley  Bank  v.  Mack,  24:  184,  i63 
Fed.  155,  89  C.  C.  A.  605. 

112.  One  who  in  good  faith  advances  mon- 
ey to  a  bankrupt,  and  takes  a  mortgage 
as  security  therefor,  is  entitled  to  enforce 
the  mortgage,  although  the  money  is  used 
by  the  bankrupt  to  give  a  preference  to  one 
of  his  creditors.  Ohio  Valley  Bank  v.  Mack, 
24:  184,  163  Fed.  155,  89  C.  C.  A.  606. 

(Annotated) 

113.  A  claim  for  loss  on  a  contract  by 
which  one  party  was  to  buy  produce  with 
money  furnished  by  the  other,  and  to  ship 
it  to  the.  latter  for  sale,  after  which  the 
net  profits  were  to  be  divided,  is  provable  ia 
bankruptcy  proceedings  against  the  former,, 
so  as  to  be  barred  by  the  discharge  if  the- 
creditor  had  notice  of  the  proceedings  and 
that  a  loss  was  likely  to  result  from  the 
undertaking,  although,  at  the  time  of  the 
proceedings,  the  produce  had  not  all  been 
disposed  of,  so  that  the  amount  of  the 
claim  was  not  then  ascertained.  Dycus  v. 
Brown,  28:  190,  121  S.  W.  1010,  135  Ky.  140. 

114.  A  contract,  express  or  implied,  for 
which  claims  may  be  filed  under  the  bank- 
ruptcy act,  includes  quasi  contracts  to  pay 
for  property  converted  and  consumed  by 
the  debtor.  Reynolds  v.  New  York  Trust 
Co.  39:  391,  188  Fed.  611,  110  C.  C.  A.  409. 

115.  A  warranty  by  a  copurchaser  of  tim- 
ber land,  to  induce  his  associates  to  join 
in  its  purchase,  that  it  will  cut  a  certain 
quantity  of  lumber,  does  not  raise  an  im- 
plied contract  to  reimburse  them  in  case 
of  loss  through  its  failure  to  do  so,  the 
claim  upon  which  can  be  proved  against  his 
estate  as  founded  upon  contract,  express  or 
implied,  under  the  bankruptcy  act.  Swit- 
zer  V.  Henking,  15:  1151,  158  Fed.  784,  86 
C.  C.  A.  140.  (Annotated) 

116.  If  a  trustee  in  bankruptcy  sella 
mortgaged  property  free  of  the  mortgage, 
the  mortgagee  is  entitled,  if  the  proceeds 
are  sufficient  for  that  purpose,  to  the  pay- 
ment of  the  interest  upon  his  mortgage 
debt,  as  well  as  the  principal,  in  accordance 
with  the  terms  of  the  note  and  mortgage. 
Coder  v.  Arts,  15:  372,  152  Fed.  943,  82  C. 
C.  A.  91. 

117.  A  bank  cannot  assent  to  the  ratifica- 
tion by  a  partnership  of  the  individual  debt 


238 


BANKRUPTCY,  IV.  a. 


of  a  partner  to  it  after  the  partnership  has 
become  insolvent,  so  as  to  be  entitled  to 
apply  collateral  held  to  secure  firm  obliga- 
tions in  satisfaction  of  such  indebtedness. 
Blake  v.  Atlantic  Nat.  Bank,  39:  874,  82  Atl. 
225,  33  R.  I.  464.  (Annotated) 

118.  An  author  who  haa  sold  the  copy- 
right of  his  book  to  a  publisher  upon  the 
terms  that  the  publisher  should  print  and 
publish  it,  and  should  pay  him  certain  roy- 
alties upon  the  sales  of  the  book,  is  not  en- 
titled to  royalties  upon  sales  made  by  the 
publisher's  trustee  in  bankruptcy;  the 
transaction  between  the  author  and  pub- 
lisher being  analogous  to  that  of  a  sale  of 
goods  at  a  price  varying  in  amount  and 
depending  upon  certain  events;  but  the  au- 
thor is  only  entitled  to  prove  in  the  bank- 
ruptcy for  the  damages  sustained  by  breach 
of  the  contract.  Re  Grant  Richards,  4  B. 
R.  C.  597,  [1907]  2  K.  B.  33.  Also  Re- 
ported in  76  L.  J.  K.  B.  N.  S.  643,  96  L. 
T.  N.  S.  712,  23  Times  L.  R.  388,  14  Man- 
son,  88  (Annotated) 
Fixed    liability,    absolutely    OTiriiig. 

119.  The  bankruptcy,  before  the  time  ar- 
rives, of  one  who  has  promised  to  return  the 
amount  paid  for  stock  of  a  corporation  if  it 
is  surrendered  within  a  certain  time,  does 
jiot  prevent  the  claim  upon  the  contract 
from  being  a  fixed  liability,  absolutely  ow- 
ing, at  the  time  of  the  bankruptcy,  so  as  to 
be  provable  under  the  bankruptcy  act,  since 
the  promisee  may  treat  the  bankruptcy  as  a 
repudiation  of  liability  and  immediately 
bring  an  action  for  damages.  Re  Neff,  28: 
349,  157  Fed.  57,  84  C.  C.  A.  561. 

(Annotated) 

120.  The  liability  of  a  lessee  under  a 
lease  giving  the  lessor  the  right  to  re-enter 
upon  the  bankruptcy  of  the  lessee,  and 
obligating  the  lessee  to  pay  the  difference 
between  the  amount  reserved  in  the  lease 
and  what  the  lessor  is  able  to  secure  by  a 
reletting  of  the  property,  is  not  a  fixed 
liability,  absolutely  owing  upon  the  con- 
tract at  the  filing  of  the  petition,  so  as  to 
be  provable  in  the  bankruptcy  proceedings; 
and  the  provision  of  the  bankruptcy  act 
permitting  the  liquidation  of  unliquidated 
demands  has  no  application  to  such  a  case. 
Re  Roth,  31:  270,  181  Fed.  667,  104  C.  C. 
A.  649.  (Annotated) 

121.  Rent  accruing  after  the  filing  of  a 
petition  in  bankruptcy  against  a  lessee  is 
not  provable  against  his  bankrupt  estate 
as  a  "fixed  liability,  absolutely  owing  at 
the  time  of  the  filing  of  the  petition," 
since  a  covenant  to  pay  rent  creates  no 
debt  until  the  time  stipulated  for  the 
payment  arrives.  Re  Roth,  31:  270,  181 
Fed.  667,  104  C.  C.  A.  649. 

122.  That  one  lending  money  to  a  bank- 
rupt obtained  it  from  a  bank  on  his  own 
note,  secured  by  pledge  of  the  bankrupt's 
note  and  a  mortgage,  does  not  make  the 
claim  against  the  bankrupt  that  of  the 
bank.  Ohio  Valley  Bank  v.  Mack,  24:  184, 
163  Fed.  155,  89  C.  C.  A.  605. 
Unliquidated  claims. 

123.  The  provision  of  §  17  of  the  bankrupt- 
cy act  that  a  discharge  shall  release  the 
Sieest  1-52  KR.A.(N.S.) 


bankrupt  from  all  his  "provable  debts"  ex- 
cept certain  ones  specified,  among  which 
are  certain  torts,  does  not  require  a  con- 
struction of  S  631)  in  such  a  man  nor  as  to 
render  provable  all  unliquidated  claims  for 
torts  not  specified  in  the  exception.  Brown 
V.  United  Button  Co.  8:  961,  149  Fed.  48, 
79  C.  C.  A.  70.  (Annotated) 

124.  Unliquidated  claims  for  tort  are  not 
provable  in  bankruptcy  proceedings  under 
§  63b  of  the  bankruptcy  act,  which  pro- 
vides that  unliquidated  claims  may  be  liqui- 
dated and  thereafter  proved,  since  the 
claims  referred  to  are  those  specified  in 
subdivision  o  of  the  section,  which  does 
not  include  those  for  tort.  Brown  v.  Unit- 
ed Button  Co.  8:  g6i,  149  Fed.  48,  70  C.  C. 
A.   70.  (Annotated) 

125.  A  discharge  in  bankruptcy  does  not 
affect  a  claim  for  deceit  which  has  not  been 
reduced  to  judgment,  since  such  claim  is 
not  a  provable  debt  within  the  meaning  of 
the  bankruptcy  act.  Talcott  v.  Friend,  43: 
649,  179  Fed.  676,  103  C.  C.  A.  80. 
Equitable    claims. 

126.  Under  a  bankruptcy  act  allowing  the 
pressntation  of  equitable  claims  against 
bankrupt  estates,  the  Federal  courts  will  al- 
low the  presentation  of  a  claim  by  a  mar- 
ried woman  for  money  loaned  out  of  her 
statutory  separr.te  estate  to  a  firm  of  which 
her  husband  was  a  partner,  in  bankruptcy 
proceedings  against  it,  although  the  deci- 
sions of  the  state  in  which  the  bankruptcy 
was  declared  have  denied  the  validity  of 
such  claims.  James  v.  Gray,  i:  321,  65  C. 
C.  A.  385,  131  Fed.  401. 

Set-offs. 

127.  Freight  charges  on  property  the  sale 
of  which  was  fraudulent  because  of  a  lack 
of  intention  and  ability  to  pay  for  the  prop- 
erty cannot  be  deducted  from  the  proceeds 
of  the  sale  of  such  property  by  the  receiver 
in  bankruptcy  of  the  original  purchaser, 
where  no  claim  or  proof  of  any  lien  thereon 
for  such  charges  was  presented  to  the  bank- 
ruptcy court,  and  no  railroad  company  was 
a  party  to  the  proceeding.  Gillespie  v.  J. 
C.  Piles  &  Co.  44:  I,  178  Fed.  886,  102  C.  C. 
A.  120. 

128.  The  attorney  of  the  trustee  in  bank- 
ruptcy of  one  who  purchased  property  while 
insolvent,  knowing  that  he  could  not  pay 
for  it,  cannot  be  allowed  compensation  by 
the  bankruptcy  court  out  of  the  proct^eds  of 
a  sale  of  such  property  by  the  receiver,  for 
services  rendered  after  the  original  vendors 
had  notified  the  trustee  of  their  election  to 
rescind  the  fraudulent  sale,  and  had  de- 
manded a  return  of  the  proceeds  of  the 
property,  in  trying  to  retain  such  proceeds 
in  the  estate  of  the  bankrupt,  as  against 
such  original  vendors.  Gillespie  v.  J.  C. 
Piles  <i£  Co.  44:  I,  178  Fed.  886,  102  C.  C.  A. 
120. 

Surrender  of  preferences  or  property 
Tirrongfully   obtained. 

129.  A  creditor  of  a  bankrupt  should  be 
allowed  to  prove  his  debt  on  surrender  of 
a  mere  voidable  preference  which  had  been 
received    by    him.      Ohio    Valley    Bank    v. 


i  .:.y. 


I     i^ri2,,ili. 


BANKRUPTCY,  IV.  b— V. 


239 


Mack,   24:  184,    163   Fed.    155,   89   C.   C.   A. 

605. 

130.  One  who  has  contracted  for  the  out- 
put of  a  mill  and  advanced  money  on  the 
contract  does  not  secure  an  unlawful  ad- 
vantage in  the  distribution  of  the  estate  of 
tlie  manufacturer  who  becomes  bankrupt, 
by  taking  over  all  the  finished  product  of 
the  mill,  under  the  contract,  immediately 
before  the  institution  of  bankruptcy  pro- 
ceedings, although  as  to  the  amount  of  his 
advances  he  nierely  credits  the  manufac- 
turer for  the  property  taken,  so  as  to  pre- 
vent his  proving  other  claims  against  the 
estate.  Mills  v.  Virginia-Carolina  Lumber 
Co.  21:  901,  164  Fed.   168,  90  C.  C.  A.   154. 

'  (Annotated) 

131.  A  court  of  bankruptcy  has  juris- 
diction by  a  summary  proceeding  to  di- 
minish or  expunge  an  allowed  claim,  un- 
less the  claimant  pays  to  the  trustee  the 
value  of  the  property  of  the  bankrupt  which 
he  has  taken  and  converted  to  his  own  use, 
without  any  prior  claim  to  it,  after  the 
petition  in  bankruptcy  was  filed.  Re  W. 
A.  Patterson,  34:  31,  186  Fed.  629,  108  C. 
C.  A.  493. 

ft.   'Presentyn.&nt  and  proof. 

Duty  of  collecting-  bank  to  present  claim 
in  bankruptcy  against  estate  of  bank 
on  which  dishonored  check  was  drawn, 
see  Banks,  156. 

Release  of  indorser  of  note  by  failure  to 
present  claim  against  bankrupt  es- 
tate of  maker,  see  Bills  and  Notes, 
95. 

Effect  of  proving  claim  against  bankrupt's 
estate  to  bar  action  for  deceit,  see 
Election  of  Remedies,  44. 

Effect  of  filing  claim  against  bankrupt  es- 
tate of  principal  to  estop  surety  from 
setting  up  his  release  from  liability, 
see  Estoppel,  93. 

132.  A  creditor  of  a  bankrupt  who  has 
received  a  voidable  preference  is  not  limit- 
ed to  one  ye '/  after  the  adjudication  of 
bankruptcy  for  the  presentation  of  his 
claim,  if  litigation  is  necessary  for  its 
liquidation,  which  is  not  terminated  until 
after  tlie  expiration  of  that  period.  Piatt 
v.  Ives,  45:  1068,  86  Atl.  579,  86  Conn. 
690. 

133.  That  a  claim  against  a  bankrupt 
grows  out  of  a  partnership  venture  does  not 
relieve  the  partner  holding  it  from  the  ne- 
cessity of  presenting  it  to,  and  having  it 
audited  by,  the  bankruptcy  court.  Dycus  v. 
Brown,  28:  190,  121  S.  W.  1010,  135  Ky. 
140. 

c.  Distributive  rights  and  distribution. 

Proper  remedy  to  review  decree  of  bank- 
ruptcy court,  see  Appeal  and  Ebbob, 
55. 

Claims  «f  lien  creditor. 

134.  A  lien  creditor  of  a  bankrupt  who 
enters  the  bankruptcy  court  merely  to  es- 
Dieest  1-52  I..R.A.(N.S.) 


tablish  his  claim  as  a  lien  on  the  specific 
property  to  which  it  attaches  cannot  be  re- 
quired to  permit  the  proceeds  of  such  prop- 
erty to  share  the  costs  of  the  general  ad- 
ministration of  the  bankrupt's  estate.  Mills 
V.  Virginia-Carolina  Lumber  Co.  21:901, 
164  Fed.  168,  90  C.  C.  A.  154. 

LS5.  In  determining  the  validity  of  liens 
on  the  property  of  a  bankrupt  as  against 
the  claims  of  the  trustee,  the  latter  has, 
under  the  bankruptcy  act,  the  rights  of 
creditors  of  the  bankrupt,  and  is  not  lim- 
ited to  those  of  the  bankrupt  himself. 
Fourth  Street  Nat.  Bank  v.  Taylor,  30:  552, 
172  Fed.  177,  96  C.  C.  A.  629. 
Priorities. 

Postponement  of  wife  to  other  creditors  of 
bankrupt,  see  Husband  and  Wife,  145. 

136.  Funds  arising  from  the  closing  out 
of  the  transactions  upon  its  floor  of  a  bank- 
rupt member  of  a  stock  exchange  pass  into 
the  hands  of  the  bankruptcy  trustee,  sub- 
ject to  the  rules  of  the  exchange,  which  give 
it  and  its  members  priority  over  other  cred- 
itors. Re  Gregory,  27:  613,  174  Fed.  629,  98 
C.  C.  A.  383.  (Annotated) 

137.  The  actual  and  necessary  cost  of 
preserving  a  bankrupt's  estate  subsequent 
to  the  filing  of  the  petition  has  priority 
over  the  state's  claim  for  taxes.  State  v. 
Lovell,  31:  988,  179  Fed.  321,  102  C.  C.  A. 
505.  ( Annotated ) 

138.  A  claim  against  the  assets  of  an  in- 
solvent corporation,  based  upon  a  fraudu- 
lent sale  by  it  of  its  stock,  cannot,  in  the 
bankruptcy  proceedings  against  it," be  given 
preference  to  claims  of  other  creditors,  al- 
though they  are  officers  of  the  corporation 
and  parties  to  the  fraud,  and  become  par- 
ties to  the  proceeding,  where  no  issues  are 
made  presenting  the  question  of  priority  to 
the  court.  Davis  v.  Louisville  Trust  Co. 
30:  loii,  181  Fed.  10,  104  C.  C.  A.  24. 

F.  Discharge;  effect. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Lack  of  consideration  for  note  given  by 
wife  of  bankrupt  after  discharge,  see 
Bills  and  Notes,  22. 

Effect  of  discharge  of  corporation  in,  on 
proceeding  to  enforce  stockholder's 
liability,  see  Corporations,  369. 

Fraud  in  attempting  to  secure  set-off 
against  purchase  price  of  property  of 
notes  barred  from  collection  by  bank- 
ruptcy,  see   Fraud  and  Deceit,   66. 

Determining  question  of  right  to  homestead 
in  land  sought  to  be  subjected  to  judg- 
ment lien,  on  aflSdavits  filed  in  appli- 
cation for  release  of  judgment  because 
of  discharge  in  bankruptcy  of  judgment 
debtor,  see  Homestead,  17. 

Discharge  in  insolvency,  see  Insolvency, 
VI. 

Conclusiveness  of  judgment  as  to,  see  Judg- 
ment,  154,   155. 

See  also  supra,  22,   113. 

139.  A   discharge   in   bankruptcy   of   one 


240 


BANKRUmCY,   V. 


who  has  assigned  his  expectancy  in  an  es- 
tate to  secure  a  loan  does  not  destroy  the 
lien  which  equity  imposes  upon  the  prop- 
erty, although  the  legal  obligation  to  paj 
the  debt  is  terminated.  Bridge  v.  Kedon. 
43:  404,   12G   Pac,    14i>,   163   Cal.  493. 

(Annotated) 

140.  A  discharge  in  bankruptcy  releases 
liability  on  a  bond  executed  to  release  prop- 
erty of  the  bankrupt  attached  less  than 
four  months  before  the  commencement  of 
bankruptcy  proceedings,  where  the  bank- 
ruptcy statute  makes  attachments  levied 
against  the  bankrupt  within  that  time  void, 
although  the  giving  of  the  bond  had  re- 
leased the  attachment  before  the  commence- 
ment of  the  bankruptcy  proceedings. 
Crook-Horner  Co.  v.  Gilpin,  2«:  233,  75  Atl. 
1049,    112    Md.    1.  (Annotated) 

141.  Immunity  of  a  contractor  from  lia- 
bility to  a  personal  judgment  because  of 
being  adjudged  a  bankrupt  will  not  give  a 
materialman  who  has  furnished  materials 
to  be  used  in  improving  the  property  of 
another,  a  right  to  foreclose  his  lien  in 
equity  against  the  property  of  such  third 
person.  Pike  Bros.  Lumber  Co.  v.  Mitchell, 
26:  409,  64  S.  E,  998,  132  Ga.  675. 

(Annotated) 

142.  Creditors  having  notice  of  all  steps 
taken  in  bankruptcy  proceedings  against 
their  debtor  occupy  the  same  attitude,  so 
far  as  the  barring  of  claims  is  concerned,  as 
though  they  had  been  mentioned  in  the 
petition.  Dycus  v.  Brown,  28:  190,  121  S. 
W.  1010;  135  Ky.  140. 

143.  The  discharge  in  bankruptcy  of  a 
debt  sued  upon  constitutes  a  meritorious  de- 
fense thereto.  Citizens'  Nat.  Bank  v.  Bran- 
den,  27:  858,  126  N.  W.  102,  19  N.  D.  489. 

144.  A  state  court  will  give  full  eflFect  to 
a  discharge  in  bankruptcy  pleaded  by  a 
judgment  debtor  in  an  action  brought  against 
him  by  judgment  creditors  to  enforce  their 
claim,  although  a  prior  application  of  the 
bankrupt  for  a  discharge  had  been  refused 
by  reason  of  objections  made  thereto  by  the 
judgment  creditors,  where  they  were  notified 
of  the  subsequent  proceeding  in  which  the 
discharge  was  granted,  but  did  not  appear 
therein  or  raise  the  question  of  res  judicata 
as  to  their  claim,  and  it  does  not  appear 
that  their  debt  is  one  not  released  by  the 
discharge  in  bankruptcy,  within  the  excep- 
tions of  §  17  of  the  bankruptcy  act  ap- 
proved July  1,  1898,  chap.  541  (30  Stat,  at 
L.  550,  U.  S.  Comp.  Stat.  1901,  p.  3428). 
Bluthenthal  V.  Jones,  13:  629,  41  So.  533,  51 
Fla.  396,  (Annotated) 

145.  A  creditor's  suit  is  an  action  in 
rem,  and  not  against  the  debtor  personally, 
and  a  discharge  by  a  court  of  bankruptcy  is 
no  bar  thereto.  Flint  v.  Chaloupka,  13: 
309,  111  N.  W.  465,  78  Neb.  594. 

146.  A  fraudulent  grantee  cannot  plead 
the  subsequent  discharge  in  bankruptcy  of 
his  grantor  as  a  defense  in  a  creditor's  suit 
brought  more  than  four  months  prior  to  the 
institution  of  the  bankruptcy  proceeding, 
where  the  land  involved  was  never  brought 
within  the  jurisdiction  of  the  bankruptcy 
Digest  1-52  KR.A.(N.S.) 


court.     Flint  v.  Chaloupka,  13:  309,  111  N. 
VV.  465,  78  Neb.  594. 

147.  That  a  bill  for  physician's  services  to 
one  injured  by  anotlier's  negligence  is 
proved  against  his  estate  in  bankruptcy 
does  not  preclude  his  recovery  of  the  amount 
from  the  one  responsible  for  the  injury. 
Sibley  v.  Nason,  12:  1173,  81  N.  E.  887,  196 
Mass.  125. 

148.  An  assignor's  discharge  in  bankrupt- 
cy will  not  att'ect  the  right  of  a  creditor 
who  has  not  proved  his  claim  to  enforce  a 
valid  assignment  of  future  wages  under  an 
existing  employment,  given  without  fraud, 
to  secure  a  valid  subsisting  debt.  Citizens' 
Loan  Asso.  v.  Boston  &  M.  R.  Co.  14:  1025, 
82  N.  E.  696,  196  NMass.  528.       (Annotated) 

149.  An  assignment  of  future  wages  under 
an  existing  employment  is  a  lien,  within 
the  meaning  of  a  bankruptcy  statute  pre- 
serving liens  given  in  good  faith  and  for  a 
present  consideration  from  the  operation  of 
the  act.  Citizens'  Loan  Asso.  v.  Boston  & 
M.  R.  Co.  14:  1025,  82  N.  E.  696,  196  Mass. 
528. 

Failure  t*  disclose  assets  or  list  prop- 
erty. 

Costs  of  appeal  from  denial  of  discharge 
because  of,  see  Appeal  and  Ereob, 
1636. 

Concealment  of  assets  as  continuing  of- 
fense, see  Criminal  Law,  20. 

150.  A  bankrupt  cannot  be  deprived  of 
his  discharge  for  failure  to  include  in  his 
schedule  stock  in  a  corporation  which  he 
had  pledged  as  collateral  for  a  debt,  the 
property  of  the  corporation  itself  having 
been  disposed  of  by  foreclosure  of  a  mort- 
gage. Re  McCrea,  20:  246,  161  Fed.  246, 
88  C.  C.  A.  282. 

151.  A  bankrupt  cannot  be  said  to  have 
fraudulently  or  knowingly  made  a  false 
oath,  which  will  deprive  him  of  the  right 
to  discharge,  in  not  including  in  his  sched- 
ule an  interest  in  his  deceased  father's  es- 
tate, where  it  is  not  obvious  what  interest 
belonged  to  him,  or  that  it  was  transfer- 
able, while  he  claims  to  have  transferred  it, 
even  though  the  transfer  was  so  informal 
as  not  to  have  been  effective.  Re  McCrea, 
20:  246,  161  Fed.  246,  88  C.  C.  A.  282. 
Failure  to   keep  or  produce   books. 

152.  Failure  of  one  employed  as  a  mine 
superintendent  to  keep  books  of  his  per- 
sonal financial  aflfairs  shows  no  fraudulent 
intent  which  will  deprive  him  of  the  privi- 
lege of  discharge  in  bankruptcy.  Re  Mc- 
Crea, 20:  246,  161  Fed.  246,  88  C.  C.  A.  282. 

V  Annotated ) 

153.  A  bankrupt  cannot  be  denied  his 
discharge  for  wilfully  refusing  to  obey  an 
order  to  produce  his  books,  if  they  were 
lost  or  destroyed  bv  fire.  Re  McCrea, 
20:  246,  161  Fed.  246,  88  C.  C.  A.  282. 
Fraud  of  partner.. 

154.  That  goods  were  procured  by  a 
prrtnership  on  credit  through  false  repre- 
sentations in  writing  of  one  partner  as  to 
the  condition  of  the  concern  will  not  pre- 
vent the  discharge  in  bankruptcy  of  his 
copartner,  who  had  no  knowledge  of  the 
wrongdoing.     Hardie     T.     Swolford     Bros. 


BANKRUPTCY,  V. 


241 


Dry  Goods  Co.  20:  785,  165  Fed.  588,  91   C. 
C.  A.  426.  (Annotated) 

155.  A  false  representation  by  one  mem- 
ber of-  a  partnership  for  the  purpose  of 
securing  credit,  of  which  the  copartner  is 
ignorant,  will  not  prevent  the  latter  from 
securing  a  discharge  upon  his  individual 
petition  therefor,  under  the  statute  requir- 
ing the  granting  of  the  discharge  unless 
applicant  obtained  property  on  credit  from 
any  person  upon  a  materially  false  state- 
ment made  for  that  purpose,  although  it 
may  prev-ent  the  discharge  from  operating 
as  a  release  from  liability  for  the  credit  so 
falsely  obtained,  under  the  section  of  the 
statute  providing  that  the  discharge  shall 
release  the  bankrupt  from  all  debts  except 
such  as  are  liabilities  for  obtaining  prop- 
erty by  false  representations.  Frank  v. 
Michigan  Paper  Co.  30:  623,  179  Fed.  770, 
103  C.  C.  A.  268.  (Annotated) 
Effect  on  surety's  liability  of  dis- 
charge of  principal. 

156.  A  surety  on  an  injunction  bond  given 
in  a  suit  brought  to  restrain  the  enforce- 
ment of  a  judgment  is  not  released  from 
liability  thereon  by  the  discharge  of  his 
principal  in  bankruptcy.  StuU  v.  Beddeo, 
14:  507,  112  N.  W.  315,  78  Neb.  114. 

(Annotated) 

157.  A  surety  on  a  bond  conditioned  to 
pay  the  damages  sustained  by  the  adverse 
party  when  ascertained  against  the  princi- 
pal, and  given  in  a  suit  brought  to  restrain 
the  enforcement  of  a  judgment,  cannot  evade 
liability  on  the  ground  that,  inasmuch  as 
the  damages  sustained  cannot  be  ascertained 
against  the  principal  by  reason  of  his  dis- 
charge in  bankruptcy,  the  contingency  upon 
which  his  liability  as  surety  depends  can 
never  happen,  in  view  of  §  16  of  the  bank- 
ruptcy act  ;act  July  1,  1898,  chap.  541,  30 
Stat,  at  L.  550,  U.  S.  Comp.  Stat.  1901,  p. 
3428),  which  provides  that  the  liability  of 
a  person  in  any  manner  a  surety  for  a  bank- 
rupt shall  not  be  altered  by  the  discharge  of 
such  bankru))t.  Stull  v.  Beddeo,  14:  507,  112 
N.  W.  315,  78  Neb.  114. 

Revival  of  debt. 

158.  A  debt  discharged  in  bankruptcy  is 
not  revived  by  a  written  statement  "expeci 
to  pay"  more  of  the  old  losses,  "and  the 
next  shall  be"  the  one  in  controversy;  "1 
advised"  a  representative  of  the  creditor 
"that  I  held  my  promise  .  .  .  good," 
followed  by  a  statement  that  the  writer  does 
not  know  when  he  can  do  what  he  wants  to. 
Coe  V.  Rosene,  38:  577,  118  Pac.  881,  66 
Wash.  73.  (Annotated) 

159.  A  promise  to  pay  the  balance  of  an 
indebtedness  discharged  in  bankruptcy  can- 
not be  implied  from  a  subsequent  part  pay- 
ment, since,  as   a   discharge  absolutely   ex- 

i.tinguishes  the  pre-existing  debts,  an  express 
promise  to  pay  is  necessary  in  order  to 
J, revive  a  liability  upon  a  claim  so  discharged. 
_,jMatthewson  v.  Needham,  26:  274,  105  Pac. 
jj  436,  81   Kan.  340.  (Annotated) 

^  Wbat  debts  released  by  discbarge. 
",  See  also  supra,    125. 

160.  A  discharge  in   bankruptcy  releases 
*  the   bankrupt    from   all   debts    and    claims 

Digest  1-52  I^R.A.(N.S.) 


which  are  made  provable  against  his  estate 
and  which  existed  on  the  day  the  petition 
was  filed,  except  such  debts  as  are,  by  the 
bankruptcy  act  of  1898  (act  July  1,  1898, 
chap.  541,  30  Stat,  at  L.  551,  U.  S.  Comp. 
Stat.  1901,  p.  3428),  excepted  from  a  dis- 
charge in  bankruptcy.  Ruhl-Koblegard  Co. 
V.  GHlespie,  lo:  305,  56  S.  E.  898,  61  W.  Va. 
584. 

161.  A  discharge  in  bankruptcy  will  re- 
lease the  bankrupt  from  a  liability  growing 
out  of  a  subsequent  recognition  of  his  lia- 
bility to  plaintiff  on  account  of  fraudulent 
declarations  and  concealments  by  which  he 
obtained  property  from  the  latter — the  lia- 
bility growing  out  of  the  original  tort  being 
barred  by  the  statute  of  limitations — imder 
the  provision  of  the  bankruptcy  act  declar- 
ing, in  effect,  that  the  discharge  releases  the 
bankrupt  from  all  provable  debts  except 
such  as  are  "liabilities  for  obtaining  prop- 
erty by  false  pretenses  or  false  representa- 
tions." Nelson  v.  Petterson,  13:  912,  82  N. 
E.  229,  229  111.  240. 

162.  The  obligation  to  pay  rent  is  not 
discharged  as  to  the  future  by  the  bank- 
ruptcy of  the  lessee,  unless  the  trustee 
elects  to  retain  the  lease  as  an  asset.  Re 
Roth,  31 :  270,  181  Fed.  667,  104  C.  C.  A. 
649. 

163.  A  discharge  in  bankruptcy  does  not 
release  an  unliquidated  liability  for  dam- 
ages for  abandoning  a  leased  house  without 
locking  the  doors,  so  that  it  was  entered 
and  injured  by  a  stranger.  Winfree  v. 
Jones,   1:201,  51  S.  E.  153,  104  Va.  39. 

(Annotated) 

164.  A  judgment  for  assault  and  battery, 
false  imprisonment,  and  malicious  prose- 
cution is  not  affected  by  a  discharge  in 
bankruptcy,  although  the  defendant  was  not 
actuated  by  a  wicked. or  malevolent  desire 
to  injure  the  plaintiff.  McChristal  v.  Clis- 
bee,  3:  702,  76  N.  E.  511,  190  Mass.  120. 

(Annotated) 

165.  The  materially  false  statement  the 
use  of  which  in  obtaining  credit  will  pre- 
vent one's  receiving  his  discharge  in  bank- 
ruptcy must  be  intentionally  or  knowing- 
ly untrue;  and  therefore  a  statement  by 
the  bookkeeper  of  the  applicant  for  dis- 
charge, prepared  from  books  not  fully 
posted,  which  is  believed  to  be  approxi- 
mately true,  but  which  the  actual  state  of 
the  business  proved  to  be  untrue,  will  not 
prevent  a  discharge.  Gilpin  v.  iMerchants' 
Nat.  Bank,  20:  1023,  165  Fed.  607,  91  C.  C. 
A.  445.  (Annotated) 

166.  The  liability  of  an  employer  upon  an 
accepted  order  of  his  employee,  to  pay 
a  certain  sum  per  week  out  of  the  latter's 
wages  until  a  certain  debt  is  satisfied,  is 
extinguished  by  the  discharge  of  the  em- 
ployee in  bankruptcy.  Levi  v.  Loevenhart 
&  Co.  30:  375,  127  S.  W.  748,  138  Ky.  133. 

(Annotated) 

167.  A  debtor  who  has  secured  goods  with 
the  fraudulent  intention  not  to  pay  for 
them  cannot  avoid  an  action  in  the  state 
court  for  fraud  by  securing  a  discharge  in 
bankruptcy  upon  a  voluntary  petition  pre- 
sented  by   him.     Louisville   Dry   Goods   Co. 


242 


BANKRUPTCY,  VI. 


V.  r.anman,  28:  363,  121  S.  W.  1042,  135 
Ky.  163. 

108.  Inducing  the  abandonment  of  a  suit 
on  a  note  and  surrender  of  the  instrument 
by  a  promise  to  pay  the  same,  when  falsely 
made  to  secure  time  to  conceal  assets  and 
take  advantage  of  bankruptcy  proceedings, 
is  not  such  fraud  as  will  prevent  the  dis- 
charge of  the  debt  in  such  proceedings. 
Jenkins  v.  Pilcher,  28:  423,  125  N.  W.  355, 
100    Mich.    349.  (Annotated) 

16!>.  Securing  the  performance  of  person- 
al services  by  false  and  fraudulent  repre- 
sentations is  not  an  obtaining  of  property 
by  such  means,  within  the  meaning  of  the 
provision  of  the  bankruptcy  act  which  ex- 
cepts liabilities  for  so  obtaining  property 
from  the  debts  which  may  be  proved  and 
disciiarged  in  the  bankruptcy  proceedings, 
and  therefore  tlie  bankruptcy  court  may 
stay  an  independent  action  to  recover  such 
claim.  Gleason  v.  Thaw,  34:  894,  185  Fed. 
345,    107    C.    C.   A.   463.  (Annotated) 

170.  A  discharge  of  a  bankrupt  after  the 
entry  and  docketing  of  a  judgment  which 
is  valid,  against  exempt  property,  does  not 
annul  or  extinguish  it,  except  so  far  as  it 
imposes  a  personal  liability  on  the  bank- 
rupt. Gregory  Co.  v.  Cale,  37:  156,  133  N. 
W.  75,  115  Minn.  508. 

171.  The  recovery  of  a  judgment  on  a  for- 
eign judgment  for  alimony  does  not  merge 
the  latter  so  as  to  take  the  debt  for  the 
second  judgment  out  of  the  operation  of  the 
bankruptcy  act,  which  exempts  debts  due 
for  support  of  wife  from  discharge.  Re 
Williams,  46:  719,  101  N.  E,  853,  208  N.  Y. 
32. 

172.  The  discharge  of  a  corporation  un- 
der the  Federal  bankruptcy  act  does  not 
discharge  or  extinguish  the  constitutional 
liability  of  its  stockholders  for  the  payment 
of  its  debts.  Way  v.  Barney,  38:  648,  133 
N.  W.  801,  116  Minn.  285.  (Annotated) 

173.  The  provision  in  the  bankruptcy  act 
excepting  from  discharge  debts  created  by 
default  in  any  fiduciary  capacity  does  not 
include  money  due  from  an  agent  to  his 
rrincipal  arising  from  sale  of  goods  placed 
in  his  hands  for  sale,  although  the  pro- 
ceeds were  under  the  contract  to  belong 
to  the  principal,  to  be  held  by  the  agent 
in  trust  for  the  settlement  of  th«  prin- 
cipal's account.  American  Agricultural 
Chemical  Co.  v.  Berry,  45:  1106,  87  Atl. 
218,  110  Me.  528. 

174.  The  provision  of  §  17  of  the  bank- 
ruptcy act,  to  the  efTect  that  a  discharge 
shall  release  from  all  provable  debts  except 
such  as  are  "liabilities  for  obtaining  money 
by  false  pretenses,"  is  not  affected  by  the 
provision  of  §  14b,  that  the  courts  shall 
discharge  the  applicant  unless  he  has  ob- 
tained property  on  credit  from  any  person 
upon  a  materially  false  statement  in  writ- 
ing, made  to  such  person  for  the  ptirpose 
of  obtaining  such  property  on  credit.  Tal- 
cott  v.  Friend,  43:  649,  179  Fed.  676,  103  C. 
C   A   80 

bieeat  1-52  KR.A.(N.S.) 


175.  A  discharge  in  bankruptcy  affects 
the  personal  liability  of  bankrupt  only, 
and  does  not  release  a  valid  judgment  lien 
upon  the  bankrupt's  real  estate  acquired 
more  than  four  months  prior  to  the  pro- 
ceedings in  bankruptcy.  John  Leslie  Pa- 
per Co.  V.  Wheeler,  42:  292,  137  N.  W.  412, 
23  N.  D.  477.  (Annotated) 

176.  A  state  statute  providing  tliat  a  dis- 
charged bankrupt  may  file  a  certified  copy 
of  his  discharge  in  a  court  in  which  a  judg- 
ment  has   been   rendered   against   him,   and 

>on  proper  proceeding,  that  sucli  judgment 
sliall  be  discharged  and  satisfied  of  record, 
will  be  construed  to  apply  only  to  judg- 
ments extinguished  by  the  bankruptcy  pro- 
ceeding so  that  they  shall  no  longer  have 
the  vitality  to  attach  as  liens  to  real  es- 
tate subsequently  acquired,  and  not  as  au- 
thorizing the  discharge  of  a  judgment  that 
has  become  a  valid  lien  upon  real  pro])orty 
more  than  four  months  prior  to  tiie  adjudi- 
cation in  bankruptcy.  John  Leslie  Paper 
Co.  V.  Wheeler,  42:  292,  137  N.  W.  412,  23 
N.  D.  477. 

177.  Where  a  partnership  is  formed  for 
owning  and  managing  a  bank,  one  of  the 
partners  being  president  and  the  other 
cashier  and  having  the  full  management, 
and  a  loss  results  from  such  management, 
in  the  absence  of  fraud  on  the  part  of  the 
cashier,  his  discharge  in  bankruptcy  of 
which  his  partner  had  actual  notice  and 
knowledge  but  failed  to  file  a  claim,  is  a 
good  defense  to  any  claim  such  partner  may 
have  against  him  for  the  management  of  the 
bank.  Inge  v.  Stillwell,  42:1093,  127  Pac. 
527,  88  Kan.  33. 

178.  In  a  partnership  owning  a  private 
bank,  one  of  the  partners  being  president 
and  the  other  cashier  and  having  the  full 
management  thereof,  the  relationship  be- 
tween the  partners  is  not  such  a  fiduciary 
relationship  as  will  bring  a  claim  which  the 
president  may  have  against  the  cashier  for 
mismanagement  of  the  bank  within  the  ex- 
ception of  §  17  of  the  bankruptcy  act  (act 
July  1,  1898,  chap.  541 ) ,  providing  that  a  dis- 
charge in  bankruptcy  shall  not  relieve  a 
bankrupt  from  provable  debts  created  by 
fraud,  embezzlement,  misappropriation,  or 
defalcation  while  acting  as  an  officer  or  in 
any  fiduciary  capacity.  Inge  v.  Stillwell, 
42:  1093,   127    Pac.   527,   88   Kan.   33. 

(Annotated) 

VI.  Foreign  tarikruptcy  and  discharge. 

179.  Real  estate  cannot  be  transferred  by 
a  foreign  involuntary  assignment  in  bank- 
ruptcy which  does  not  comply  with  the  pro- 
visions of  the  statute  as  to  the  conveyance 
of  real  estate.  Re  Delehanty,  17:  173,  95 
Pac.  109,  11  Ariz.  366. 

180.  A  foreign  involuntary  assignment  in 
bankruptcy  will  be  given  precedence  over 
the  claim  of  the  assignor  to  share  as  next 
of  kin  in  the  personal  estate  of  a  decedent. 
Re  Delehanty,  17:  173,  95  Pac.  109,  11  Ariz. 
366.  (Annotated) 

{.ii.rl}.r>.H.A    &cJ— 1    ^itsatQ 


BANKRUPT  STOCK;   BANKS. 


243 


BANKRUPT  STOCK. 

Imposing  license  fee  upon  one  selling,  see 
Constitutional  Law,  704;  License, 
125. 


BANKS. 

J.  Right  to  do  husiness;  powers,   1— 
lO. 
II.  Stockholders,    11-17. 
III.  Officers  and  agents,    18—55. 

a.  In  general;  qualification;  elec- 
tion. 
ft.  Authority ;  ratification,  18—4:4. 
c.  Liability,  45—55. 
IT.  Banking,   56—198. 

a.  De-posits,    56—150. 

1.  In     general;     nature     of; 

Hens  on,    56—68. 

2.  Bank's    control    over;    ap- 

plication of,   69—79. 

3.  Payment    of    checks;    for- 

geries,  80—146. 

a.  In    general,    80—106. 

b.  Forgeries,   107—146. 

(1)  In  general,  107— 

122. 

(2)  Altered     checks, 

123-128. 

(3)  Forged    indorse- 

ments,        129— 
146. 

4.  Certificate  of  deposit,  147— 

150. 
t.  Collections,    151—188. 

1.  In   general,    151—186. 

2.  Insolvency,    187,    188. 

c.  Other   transactions;   discounts, 

etc.,    189—198. 

d.  Clearing  house  htisiness. 
V.  Insolvency,   199—231. 

VI.  Savings  banks,  232—242. 
Til.  Crimes,   243—254. 

Acceptance  by  bank  as  agent  for  contractor 
for  public  work  of  warrant  in  full  pay- 
ment, see  Accord  and  Satisfaction, 
19,  20. 

Assignment  by  customer  to  bank  of  book 
accounts,  see  Assignment,  28. 

Hecovery  back  of  amount  paid  on  draft 
with  bill  of  lading  attached,  see  As- 
sumpsit, 36. 

Application  of  collateral  held  to  secure  firm 
obligations  in  satisfaction  of  indi- 
vidual debt  of  partner,  see  Bank- 
ruptcy,  117. 

Effect  of  renewing  note  to,  without  requir- 
ing surrender  of  old  one,  which  has 
been  pledged  by  bank  as  collateral,  see 
Bills  and  Notes,  192. 

As  bona  fide  purchaser  of  bills  and  notes, 
see  Bills  and  Notes,  165,  166,  174, 
175,  186,  187,  195;  Evidence,  2324, 
f        2325. 

teffect  of  certification  of  checks  by,  see 
Checks,   III. 

Digest  1-52  L.R.A.(N.S.) 


Exempting  loans  made  by  national  banks 
from  statute  requiring  assignment  of 
future  wages  to  be  accepted  in  writing, 
see  Constitutional  Law,  181. 

Equal  protection  of  laws  as  to,  see  Con- 
stitutional Law,  280-283. 

Due  process  of  law  as  to,  see  Constitu- 
tional Law,  435,  436. 

Police  power  as  to,  see  Constitutional 
I>AW,   700-702. 

Impairing  contract  obligations,  see  Consti- 
tutional Law,  776. 

Necessity  of  written  authority  to  fill  blank 
in  deed,  see  Contracts,  256. 

Obligation  of  one  assuming  debts  of  bank 
in  consideration  of  transfer  of  assets, 
see  Contracts,  371,  372. 

Liability  of  corporation  absorbing  bank  for 
debts  of,  see  Corporations,  22. 

Right  of  one  loaning  money  to  bank  which 
has  borrowed  beyond  the  limit  fixed  by 
charter,  see  Corporations,  88. 

Estoppel  to  set  up  ultra  vires,  see  Cor- 
porations,. 91-95. 

Liability  of  incorporators  of  trust  company, 
see  Corporations,  183-187. 

Theft  of  stock  certificate  pledged  with,  see 
Corporations,  244. 

flight  to  allowance  of  counsel  fees  upon 
successfully  defending  claim  to  interest 
on  fund,  see  Costs  and  Fees,  24. 

Agreement  not  to  deliver  up  documents 
without  depositor's  consent  as  answer 
to  subpoena  duces  tecum,  see  Discov- 
ery and  Inspection,  10. 

Pledge  to  bank  of  town  orders  as  collat- 
eral security  for  loan  to  town  treas- 
urer, see  Estoppel,  22;  Pledge  and 
Collateral  Security,  18,   19. 

Estoppel  to  deny  liability  as  indorser  of 
note,   see  Estoppel,   184. 

Estoppel  to  set  up  defense  to  note  taken  by 
bank  as  collateral  for  loan,  see  Estop- 
pel, 188. 

Judicial  notice  as  to  banking  business,  see 
Evidence,  40,  41. 

Evidence  to  show  breach  of  trust  by  or- 
ganizers of  trust  company,  see  Evi- 
dence,  1675. 

Garnishment  of  contents  of  safety  deposit 
box,  see  Garnishment,  17,  18. 

Right  of  debtor  to  place  money  in  bank  in 
order  to  confer  jurisdiction  in  gar- 
nishment proceedings,  see  Garnish- 
ment, 30. 

Guaranty  by  requesting  bank  to  permit 
overdrafts  by  third  person,  see  Guar- 
anty, 10,  11. 

Injunction  to  restrain  payment  by  solvent 
bank,  of  margins,  upon  breach  of  con- 
tract for  sale  of  wheat,  see  Injunc- 
tion, 55. 

Right  of  bank  undertaking  to  deliver  money 
to  carrier  to  benefit  of  judgment  in 
favor  of  principal  against  carrier,  see 
Judgment,   83. 

Libel  in  giving  information  as  to  credit 
and  standing  of  business  corporation, 
Bee  LiBEi.  and  Slander,  105. 


244 


BANKS,  I. 


When     limitation     period     begins     to     run 

ai,'ain8t    right    to    recover    penalty    for 

taking  of  usury  by  national  bank,  see 

Limitation  of  Actions,  119. 
Loan   by,   to  municipality,   see  Municipal 

CoRPOKATlONS,   228,   251,  252. 
Notice  to  generally,  see  Notice,  17,  18,  37, 

40-43,   56-59. 
Action   in    its   own    name   to    recover   back 

money    paid    for    taxes    on    stock,    see 

Pabties,  138. 
EflFect   of   payment  by    worthless    cashier's 

check,  see  Payment,  11-13. 
Negligence    in    acceptance    of     pledge,    see 

Pledge  and  Collateral  Security,  20. 
Proximate  cause  of  loss  to  bank  accepting 

stolen     paving     tax     certificates,     see 

Pboximate  Cause,  156. 
Taxation  of  generally,  see  Taxes,  37-42. 
Taxation   of   United   States  bonds  held  by 

national  bank,  see  Taxes,  2. 
Taxation  of  national  bank  stock,  see  Taxes, 

3,  15. 
Taxation  of  capital   stock,   see  Taxes,   30, 

75-77,  187,  188. 
Liability  of  telegraph  company  sending  to 

bank    forged     telegram     promising    to 

honor  bank  draft,  see  Telegraphs,  25, 

49. 
SuflBciency  of  tender  deposited  in  bank,  s^e 

Tender,  11. 
Investment  in  capital  stock  of,  by  trustee, 

see  Trusts,  113. 

I.  Right  to  do  business;  powers. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.  J 

Police  power  to  regulate  business  of,  see 
Constitutional  Law,  700-702. 

Constitutionality  of  provisions  as  to  cap- 
ital, see  Constitutional  Law,  280, 
281. 

Right  to  do  business. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  280-283. 

1.  The  state  may  refuse  a  bank  charter 
if,  upon  examination,  no  public  necessity 
is  found  for  its  existence  in  the  community 
in  which  it  is  sought  to  be  established. 
Schaake  v.  Dolley,  37:  877,  118  Pac.  80,  85 
Kan.   598. 

2.  In  a  state  where  bank  charters  are 
to  be  granted  only  when  necessary,  if 
equally  meritorious  applications  for  char- 
ters for  several  banks  in  the  same  com- 
munity are  pending  before  the  charter 
board  at  the  same  time,  and  th«  charter 
board  determines  against  the  necessity  for 
more  than  one  bank,  the  application  first 
presented  should  be  granted.  Schaake  v. 
Dolley,  37:  877,  118  Pac.  80,  85  Kan.  598. 

3.  The  legislature  may  lawfully  require 
at  least  one  member  of  a  private  banking 

'firm  to  be  a  resident  of  the  state.    State  v. 
..Richcreek,  5:874,  77  N.  E.   1085,  167  Ind. 

217.  (Annotated) 

Digest  1-52  L.R.A.(N.S.) 


I  4.  Requiring  incorporation  as  a  condi- 

j  tion  to  doing  a  banking  business  is  regu- 
lation, and  not  proliibition,  and  therefore 
does  not  unconstitutionally  interfere  with 
the  right  to  transact  such  business.  Weed 
v.  Bergh,  25:  1217,  124  N.  W.  664,  141  Wis. 
569. 

5.  A  requirement  that  all  banks  must 
be  converted  into  corporations  within  three 
months  after  the  passage  of  a  statute  does 
not  render  the  statute  invalid  on  the  theory 
that  it  cannot  be  obeyed  without  a  ruinous 
sacrifice  of  property  amounting  to  practical 
confiscation,  if  the  incorporation  can  be  ef- 
fected within  that  time,  by  the  application 
of  ordinary  business  methods,  without  loss. 
Weed  V.  Bergh,  25:  1217,  124  N.  W.  664,  141 
Wis.  569. 

6.  Where  the  statutes  for  the  regula- 
tion of  the  banking  business  provide  for 
issuance  of  licenses  only  to  corporations, 
individuals  may  conduct  the  business  with- 
out a  license.  Marymont  v.  Nevada  State 
Bkg.  Board,  32:  477,  111  Pac.  295,  33  Nev. 
333. 

Guaranty  deposit  law. 

Denial  of  equal  protection  of  laws  by,  see 
Constitutional  Law,  282. 

As  exercise  of  police  power,  see  Constitu- 
tional Law,  702. 

As  impairment  of  contract  obligations,  see 
Constitutional  Law,  776. 

As  a  taking  of  property  for  private  use,  see 
Eminent  Domain,  56. 

7.  A  state  law  permitting  state  banks 
to  contribute  to  a  fund  to  guarantee  their 
deposits  is  not  invalid  because  the  plan 
will  tend  to  attract  depositors  from  nation- 
al banks,  and  therefore  impair  their  effi- 
ciency as  instrumentalities  of  the  national 
government.  Abilene  Nat.  Bank  v.  Dolley, 
32:  1065,   179   Fed.   461,    102   C.   C.   A.   607. 

(Annotated) 
Dealing  in  merchandise. 

8.  A  national  bank  has  no  authority  to 
deal  in  merchandise,  so  as  to  ;  nder  itself 
liable  for  the  full  delivery  of  a  consignment 
of  merchandise  which  it  purchases  in  trans- 
it and  undertakes  to  deliver  to  the  con- 
signee. Lewis  V.  W.  H.  Small  &  Co.  6:  887, 
96  S.  W.  1051,  117  Tenn.  153. 

Ourning  real  estate. 

Escheat  of  land  held  by  national  bank,  see 
Escheat,  2. 

9.  A  banking  company  may,  as  an  in- 
cident to  its  business,  or  to  secure  itself 
from  loss  in  the  transaction  of  its  author- 
ized business,  become  the  lawful  owner  of 
real  estate.  State  Security  Bank  v.  Hos- 
kins.  8:  376,  106  N.  W.  764,  130  Iowa,  339. 
Promoting  schemes. 

10.  The  authority  of  a  trust  company 
to  buy  and  sell  stocks  and  bonds  does  not 
authorize  it  to  indulge  in  hazardous  pro- 
moting schemes,  although  it  may  hope  from 
the  successful  launching  of  such  schemes  to 
make  large  commissions  and  receive  large 
bonuses.  Gause  v.  Commonwealth  Trust 
Co.  24:  967,  89  N.  E.  476,  196  N.  Y.  134. 


BANKS,  II.,  III.  a. 


245 


II.  StocTcholders. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Right  of  notary  who  is  stockliolder  of  hank 
discounting  note  to  protest  it  for  non- 
payment, see  Bir.xs  and  Notes,  100. 

Repurchase  of   its   own  stock  by  bank,  see 

CORPOEATIOXS,    84. 

Trust  for  voting  stock  of,  see  Corporations, 
381. 

Stockliolders  in  corporations  generally,  see 
Corporations,  V. 

Liability  of  corporate  stockholders,  gener- 
ally, see  Corporations,  V.  f. 

Removal  of  suit  to  enforce  stockholders' 
liability,  see  Removal  of  Causes,  16. 

Transfer    of   stock. 

Transfer  of  corporate  stock  generally,  see 
Corporations,  V.  c. 

11.  To  effect  an  assignment  and  dispo- 
sition of  shares  of  capital  stock  in  a  bank, 
80  as  to  release  the  assignor  from  the  super- 
added liability  of  shareholders  fixed  by  law, 
he  must  procure  a  transfer  of  the  stock  on 
the  books  of  the  bank  in  accordance  with 
the  provisions  of  the  banking  act.  Abilene 
State  Bank  v.  Strachan,  46:  668,  132  Pac. 
200,  89  Kan.  577. 

12.  A  transfer  of  stock  on  the  books  of 
a  bank  is  essential  to  a  release  from  lia- 
bility of  a  sliareliolder  who  sells  and  assigns 
his  stock  to  the  bank  itself  in  payment  of  a 
previously  contracted  debt  owing  by  him 
to  tiie  bank.  Abilene  State  Bank  v. 
Strachan,  46:  668,  132  Pac.  200,  89  Kan. 
577.  (Annotated) 

1?>.  A  purchaser  of  bank  stock  may  com- 
pel, by  bill  in  equity,  the  transfer  of  the 
same  on  the  books  of  the  corporation,  or 
he  may  sue  in  conversion  and  damages  for 
the  failure  to  so  transfer.  Ardmore  State 
Bank  v  Wason,  39:  292,  120  Pac.  1080,  30 
Okla.  5(58. 
Pledge  of  stock. 
See  also  infra,  15. 

14.  By-laws  of  a  hank  prohibiting  the 
sale  of  stock  while  the  holder  is  indebted 
to  the  bank  do  not  apply  to  a  sale  by  a 
pledgee  who  took  tlie  pledge  to  secure  a 
debt  at  a  time  when  no  indebtedness  to  the 
bank  existed,  although,  with  knowledge  of 
the  pledge,  the  bank  subsequently  made  a 
loan  to  the  stockholder.  Ardmore  State 
Bank  v.  Mason,  39:  292,  120  Pac.  1080,  30 
Okla.  5G8. 

Lien  on  stock. 

Lien  on  corporate  stock,  generally,  see  Cor- 
porations, V.  c,  3. 

15.  The  statutory  lien  of  a  bank  on  its 
stock  for  indebtedness  of  its  holder  is  sub- 
ordinate to  that  of  the  pledgee  of  the  stock, 
who  takes  it  to  secure  a  loan  at  a  time 
when  the  liolder  is  not  indebted  to  the  bank, 
where,  to  the  knowledge  of  the  bank,  the 
pledge  was  in  existence  when  it  made  the 
loan  for  which  the  lien  is  claimed.  Ard- 
more State  Bank  v.  Mason,  39:  292,  120 
Pac.  inso,  30  Okla.  568.  (Annotated) 
Digest   1-52  I..R.A.(N.S.) 


Actions  by. 

By  corporate  stockholders  generally,  see 
Corporations,   V.  e,  2. 

16.  Stockholders  and  depositors  of  a 
bank  in  possession  of  a  receiver  may  main- 
tain an  action  to  hold  the  directors  liable 
for  loss  of  funds  through  breach  of  duty, 
making  the  receiver  a  party  defendant  upon 
his  refusal  to  institute  the  proceedings. 
Ellis  V.  K.  P.  Gates  Mercantile  Co.  43:  982, 
60  So.  649,  103  Miss.  560. 
Enforcement  of  stockholders'  liabil- 
ity. 

Of  corporate  stockholders,  generally,  see 
Corporations,  V.  f,  4. 

17.  A  complaint  in  a  suit  in  equity 
wherein  a  receiver  of  an  insolvent  bank 
joins  certain  subscribers  to  the  capital  stock 
of  the  bank  as  defendants,  for  the  purpose 
of  recovering  unpaid  subscriptions,  that 
further  alleges,  in  substance,  that  the  judge 
of  the  court  wherein  said  receiver  was  ap- 
pointed, upon  application  of  creditors,  sup- 
ported by  a  showing  that  the  bank  was 
entirely  insolvent,  and  without  assets  suffi- 
cient to  distribute  any  part  thereof  to  the 
bank  or  its  shareholders,  entered  an  order 
directing  said  receiver  to  retain  counsel  and 
institute  proper  proceedings  against  the 
defendants  as  subscribers  for  the  capital 
stock  of  said  insolvent  bank,  to  recover  the 
respective  amounts  remaining  unpaid  on 
said  subscription,  or  for  the  stock  issued 
to  them,  for  the  benefit  of  all  the  creditors 
of  said  bank,  and  that  this  suit  is  filed  in 
compliance  with  said  order, — states  facts 
sufficient  to  warrant  the  trial  court  in 
treating  such  suit  as  one  brought  by  the 
creditors  of  said  insolvent  bank,  over  which 
a  court  of  equity  has  jurisdiction,  and  in 
which  all  the  subscribers  to  the  capital 
stock  may  be  joined  as  defendants.  Dill  v. 
Ebey,  46:  440,  112  Pac.  973,  27  Okla.  584. 

///.  Officers  and  agents. 

a.  In    general;    qualification;    election. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Recovery  from  broker  of  money  received  by 
him  in  good  faith  from  bank  teller  for 
purpose  of  speculation,  see  Assumpsit, 
19. 

Validity  of  consideration  for  note  given  to 
cover  shortage  of  employee,  see  Bills 
•and  Notes,   27,  28. 

Rights  of  bank  taking  from  its  cashier, 
without  indorsement,  negotiable  paper 
indorsed  to  him  personally,  see  Bills 
and  Notes,  96. 

Availability  against  president  of  bank  pur- 
chasing note  from  it  of  defenses  tliere- 
to,  see  Bills  and  Notes,  133,  134. 

Imputing  to  president  knowledge  of  infirm- 
ity in  note  purchased  from  bank,  see 
Bills  and  Notes,  178. 

Bonds  of,  see  Bonds,  41-44. 

Embezzlement  from  bank  and  from  corpo- 
rate depositor  by  officer  common  to 
both,  see  Corporations,  158. 


246 


BANKS,  III.  b. 


Theft  by  officer  of  bank  of  stock  certificate 
pledged   with,    see   Cobi'dkations,   244. 

Evidence  in  prosecution  of  officers  for  con- 
version of  state  moneys,  see  Evidence, 
19C9. 

Parol  evidence  as  to  indorsement  of  notes 
to  cashier  of  bank  as  individual,  see 
Evidence,    997. 

Parol  evidence  that  indorser  acted  as  agent 
of  bank,  see  Evidence,  998. 

Right  of  bank  agent  to  testify  to  trans- 
actions from  knowledge  of  course  of 
business,  see  Evidence,  1180. 

Imputing  to  bank  knowledge  of  officials,  see 
Notice,   17,   18,   33,   37,   40-43,   56-59. 

EflFect  of  act  of  cashier  in  taking  purchase- 
money  mortgage  in  the  name  of  the 
bank  upon  sale  of  his  property,  see 
Mortgage,  3,  4. 

Action  by,  on  note  taken  by  president  for 
bank's  benefit,  see  Parties,  54. 

Suit  by,  for  recovery  of  promissory  notes 
pledged  by  cashier,  see  Parties,  65. 

Conversion  by  bank  officers,  see  Trover,  37, 
49. 

Indictment  of  officer  for  converting  public 
funds,  see  Indictment,  etc.,  96,  130. 

b.  Authority;  ratification. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Rights  of  one  taking  pledge  of  negotiable 
paper  of  bank  official  as  collateral  for 
his  own  debt,  see  Bills  and  Notes, 
194. 

Burden  of  proving  officers'  authority,  see 
Evidence,  182. 

Notice  to  bank  of  misappropriation  of 
funds  of  other  corporation  by  cashier, 
see  Notice,  18. 

Imputing  officer's  knowledge  to  bank,  see 
Notice,  18,  33,  37,  40-43,  56-59. 

Director  aa  agent  of  bank  or  of  one  giving 
chattel  mortgage  to  bank,  see  Princi- 
pal and  Agent,  5. 

18.  When  the  general  manager  of  a 
bank  accepts  for  the  bank  a  promissory 
note,  payable  to  its  order,  with  surety,  in 
the  place  of  another  note,  without  surety, 
and  as  a  part  of  the  transaction  of  ac- 
ceptance alters  tlie  date  of  tlie  new  note 
to  correspond  witli  tliat  of  the  note  sur- 
rendered, the  bank  is  chargeable  with  the 
act  of  its  officer  as  one  done  in  the  course 
of  the  business  of  the  bank  by  a  general 
agent;  and  it  cannot,  as  to  nonconsenting 
obligors,  rely  upon  the  altered  note  as  evi- 
dence of  the  indebtedness,  and  at  the  same 
time  disavow  the  act  of  its  officer  and  agent, 
and  claim  his  action  to  be  that  of  a 
stranger,  or  beyond  his  authority.  Bodine 
v.  Berg  (N.  J.  Err.  &  App.)  40:  65,  82  Atl. 
901,  82  N.  J.  L.  662. 

19.  A  creditor  of  a  bank  official  is  bound 
to  return  to  the  bank  funds  belonging  to  it 
which  had  been  placed  to  his  credit  by  the 
official  on  fictitious  notes,  and  checked  out 
by  him  in  payment  of  the  official's  debt  to 
himself,  altiiough  he  had  no  knowledge  of 
Digest   1-52  I,.R.A.(N.S.) 


the  wrongful  use  of  the  bank's  funds.  Cobe 
V.  Coughlin  Hardware  Co.  31:  1126,  112  Pac. 
115,  83  Kan,  522.  (Annotated) 

Authority   of   president. 
Imputing  knowledge  of   president  to  bank, 
see  Notice,  43,  56,  57. 

20.  A  bank  cannot  dispute  the  authority 
of  its  president  to  make  payments  on  a 
buikling  contract  other  than  according  to 
its  terms,  where  the  matter  was  placed  in 
his  hands,  and  payments  made  were  en- 
tered on  the  bank's  books,  while  it  claims 
credit  for  them.  First  Nat.  Bank  v.  Fi- 
delity &  D.  Co.  5:  418,  40  So.  415,  145  Ala. 
335. 

21.  Authority  conferred  upon  the  presi- 
dent of  a  bank  to  sign  nofes  and  checks, 
of  the  corporation  and  to  disburse  moneys 
on  behalf  of  the  corporation  includes  au- 
thority to  indorse  the  company's  notes. 
Page  V.  Ford,  45:  247,  131  Pac.  1013,  65  Or. 
450. 

Authority  of  cashier. 

Ratification  of  act  of,  see  infra,  40-43. 

Binding  effect  on,  of  statements  by  cashier 
to  bonding  company,  see  Bonds,  44. 

Rights  of  creditor  of  cashier,  untruthfully 
notified  by  latter  that  amount  of  debt 
has  been  placed  to  creditor's  credit  on 
books  of   bank,   see   Evidence,   649. 

Liability  for  interest,  of  bank  whose  cash- 
ier through  its  machinery  misappro- 
priates estate  of  which  he  is  executor, 
see  Interest,  7. 

Imputing  notice  of  cashier  to  bank,  see 
Notice,  18,  37,  41,  42,  59. 

22.  Neither  tlie  cashier  of  a  national 
bank  nor  a  member  of  the  discount  board 
who  owns  a  majority  of  the  stock,  nor  the 
two  conspiring  together,  can,  by  any  device 
or  fraud,  give  away  the  funds  of  the  bank, 
nor  use  them  to  pay  the  individual  debts 
of  either.  Cobe  v.  Coughlin  Hardware  Co. 
31:  1126,  112  Pac.  115,  83  Kan.  522. 

23.  A  bank  cashier  has  no  authority, 
simply  by  virtue  of  his  office,  to  accept  for 
the  bank,  unknown  to  the  directors  thereof, 
a  qualified  indorsement  on  a  promissory 
note,  irrespective  of  whether  the  note  is 
an  original  one  presented  for  discount,  or 
one  taken  in  judgment  or  in  renewal  of  a 
pre-existing  note.  First  Nat.  Bank  v,  Low- 
ther-Kaufman  Oil  &  C.  Co.  28:  511,  66  S.  E. 
713,   66  W.   Va,  505.  (Annotated) 

24.  The  cashier  of  a  bank  has  no  author- 
ity to  bind  the  bank  by  his  promise  that 
one  signing  paper  without  consideration,  to 
replace  that  of  the  cashier,  to  enable  the 
bank  to  pass  inspection,  shall  not  be  held 
liable  thereon,  and  one  signing  such  paper 
is  chargeable  with  notice  of  such  want  of 
authority,  and  acts  at  his  peril  in  relying 
on  the  promise.  State  Bank  v.  Forsyth, 
28:  501,   108  Pac.  »14,  41   Mont.  249. 

(Annotated) 

25.  The  act  of  the  cashier  of  a  bank  in 
rendering  assistance  to  a  gang  of  men  who 
are  engaged  in  fleecing  the  public  by  means 
of  fictitious  races,  by  opening  accounts  with 
intended  victims,  cashing  and  forwarding 
checks  for  collection,  and  giving  the  scheme 
the   appearance   of  respectability,  w'U  bind 


BANKS,  III.  b. 


247 


the  bank,  since  it  is  banking  business, — at 
least  where  all  stockholders  in  the  bank 
are  cognizant  of  the  facts.  Hobbs  v.  Boat- 
right,   5:906,    93   S.   W.   934,    195   Mo.    693. 

26.  Depositors  who  intrust  their  money 
to  the  keeping  of  a  bank  cashier,  and  stock- 
holders who  treat  him  as  cashier,  must  lose, 
rather  than  one  who  furnishes  money  to 
him  as  such,  and  requires  a  pledge  of  the 
assets  of  the  bank  as  collateral  security. 
Citizens'  Bank  v.  Weakley,  11:  598,  103  S. 
W.  249,  126  Ky.  169. 

27.  It  is  within  the  apparent  authority 
of  a  bank  cashier  to  borrow  money  for  use 
of  the  bank,  and  pledge  notes  owned  by  it 
as  security  for  the  loan.  Citizens'  Bank  v. 
Weakley,  11:598,  103  S.  W.  249,  126  Ivv. 
169. 

28.  A  bank  holding  a  majority  of  the 
stock  of  another  bank  as  security  for  a 
loan  to  its  cashier  is  not  charged  with  no- 
tice that  the  latter  bank  has  no  directors, 
or  that  its  stockholders  are  taking  no  in- 
terest in  its  affairs.  Citizens'  Bank  v. 
Weakley,  11:598,  103  S.  W.  249,  12G  Ky. 
169. 

29.  That  a  cashier  borrowing  money  on 
behalf  of  the  bank,  which  has  no  president 
or  directors,  furnished  the  lender  a  forged 
director's  resolution  authorizing  the  loan 
does  not  put  the  lender  in  a  woise  position 
than  though  the  resolution  had  not  been 
required.  Citizens'  Bank  v.  Weakley,  11: 
598,  103  S.  W.  249,  126  Ky.  169. 

oO.  The  cashier  of  a  bank  has  no  implied 
authority  to  extend  the  time  of  payment 
of  a  note  due  the  bank,  without  its  knowl- 
edge or  consent.  N'anderford  v.  Farmers' 
&  M.  Nat.  Bank,  10:  129,  66  Atl.  47,  105  Md. 
164. 

31.  Intention  to  effect  that  result  is  nec- 
essary to  vest  title  in  a  bank  to  the  obliga- 
tion of  a  stranger  which  its  cashier  sub- 
stituted for  his  own.  First  Nat.  Bank  v.  Gun- 
hus,  9:  471,    110  N.  W.  611,   133  Iowa,  409. 

32.  An  assistant  cashier  acting  under  the 
direction  of  the  cashier  in  substituting  in 
the  bank's  assets  the  obligation  of  a  stranger 
for  that  of  the  cashier  cannot  be  said  to 
be  acting  for  the  bank,  so  as  to  bind  it  by 
the  transaction.  First  Nat.  Bank  v.  Gun- 
hus,  9:  471,   110  N.   W.  611,   133  Iowa,  409. 

(Annotated) 

33.  The  mere  notification,  by  the  cashier 
of  a  bank  to  his  individual  creditor,  that  he 
has  placed  the  amount  of  the  debt  to  the 
latter's  credit  on  the  books  of  the  bank, 
followed  by  the  honoring  of  his  check  for  a 
portion  of  the  amount,  does  not  charge  tiie 
bank  with  responsibility  for  the  credit. 
Langlois  v.  Gragnon,  22:  414,  49  So.  18,  123 
La.  453. 

34.  A  bank  the  directors  of  which  per- 
mitted the  cashier  to  conduct  its  affairs  al- 
most without  supervision  will  not  be  per- 
mitted to  charge  against  the  account  of  an 
estate  of  which  he  was  executor  checks 
drawn  by  him  as  executor  against  tlie  ac- 
count of  the  estate  to  his  own  order,  and 
delivered  to  the  teller,  to  provide  funds  to 
meet  checks  which  he  had  drawn  on  his 
private  account  and  certified.  Lowndes  v. 
Digrest  1-52  I,.R.A.(N.S.) 


City  Nat.  Bank,  22:  408,  72  Atl.  150,  82 
Conn.  8. 

35,  A  bank  is  liable  to  make  good  to  the 
account  of  an  estate  of  which  its  cashier 
was  executor  the  amount  of  checks  drawn 
by  him  upon  the  estate's  account,  and  used 
by  the  bank's  clerks  -to  make  good  over- 
drafts which  the  cashier  had  drawn  upon 
the  account  of  a  corporation  of  which  he  was 
manager,  and  which  had  not  been  charged 
against  such  account  of  the  corporation  so 
as  to  show  the  overdraft,  but  had  been  car- 
ried by  the  teller  as  cash  items.  Lowndes 
V.  City  Nat.  Bank,  22:  408,  72  Atl.  150,  §2 
Conn.  8. 

^6.  A  bank  the  directors  of  which  permit 
the  cashier  to  conduct  its  affairs  almost 
without  supervision  will  be  liable  to  make- 
good  to  the  account  of  an  estate  of  which 
he  is  executor  the  amount  of  checks  drawn 
by  him  against  the  estate's  account,  to  pay 
notes  of  a  corporation  of  which  he  is  mana- 
ger, where,  for  a  long  period  of  time,  the 
agents  of  the  bank  have  permitted  him  to 
make  good  overdrafts  on  the  corporation's 
account  by  checks  against  that  of  the  estate. 
Lowndes  v.  City  Nat.  Bank,  22:  408,  72 
Atl.  150,  82  Conn.  8. 

37.  A  bank  which  pays  its  cashier  a 
check  drawn  by  him  in  nis  own  favor,  upon 
the  account  of  an  estate  of  which  he  is 
executor,  is  not,  in  the  absence  of  anything 
to  indicate  that  he  has  misappropriated  the 
funds  of  the  estate,  bound  to  make  good 
to  the  estate  the  amount  of  the  clieck. 
Lowndes  v.  City  Nat.  Bank,  22:  408,  72  AtL 
150,  82  Conn.  8. 

38.  In  contemplation  of  law,  the  leasing 
of  property  belonging  to  a  national  bank- 
ing association  is  not  within  the  ordinary 
powers  and  duties  of  the  cashier  of  the 
bank.  Spongberg  v.  First  Nat.  Bank, 
31:736,   110  Pac.  716,   18  Idaho,  524. 

(Annotated) 

39.  The  cashier  of  a  bank,  having  im- 
plied authority,  as  its  executive  officer,  to 
contract  for  the  disppsal  of  lands  acquired 
by  the  bank  in  the  collection  of  its  credits, 
will  bind  the  bank  by  his  contract  to  pay 
commissions  for  the  disposal  of  land  placed 
in  the  hands  of  a  broker,  but  which, 
through  a  mistake  in  identity,  the  bank 
does  not  own.  Arnold  v.  National  Bank. 
3:  580,  105  N.  W.  828,  126  Wis.  362. 
Ratification  of  acts  of. 

40.  A  bank  cannot  ratify  the  act  of  its 
cashier  in  substituting  the  obligation  of  a 
stranger  for  his  own  to  the  bank,  retroact- 
ively, so  as  to  cut  out  the  rights  of  another 
bank  to  which  the  cashier  subsequently  de- 
livered such  obligation  as  security  for  his 
own  debt.  First  Nat.  Bank  v.  Gunhus,  9: 
471,  110  N.  W.  611,  133  Iowa,  409. 

41.  Ratification  of  the  act  of  a  bank 
cashier  in  leasing  rooms  in  the  bank  build- 
ing is  effected  where  he  had  assumed  to 
exercise  the  power  of  leasing  them,  and  at 
least  a  majority  of  the  directors  had  knowl- 
edge of  a  particular  lease,  while  the  lessee 
had  been  in  possession  for  eighteen  months, 
and  the  building  committee  had  made  alter- 
ations at  the  request  of  the  lessee.     Spong- 


248 


BANKS,  III.  c. 


berg  V.   First  Nat.   Bank,  31:  736,   110  Pac. 
716,   18   Idaho,   524. 

42.  A  national  bank  cannot  ratify  the 
act  of  its  cashier  in  guarantying  payment 
of  a  loan  made  by  a  third  person  to  its 
customer  to  whom  it  has  made  a  loan  ex- 
ceeding the  statutory  limit,  although  the 
money  was  needed  to  pay  the  person's  debts 
and  keep  the  customer  solvent.  First  Nat. 
Bank  v.  Monroe,  32:  550,  69  S.  E.  1123, 
135  Ga.  614. 

43.  Where  the  cashier  of  a  bank,  who 
has  misappropriated  its  funds  in  order  to 
cancel  his  defalcation,  transfers  thereto 
funds  of  an  elevator  company  of  which  he 
is  treasurer,  and,  in  order  to  account  jfor 
the  transfer,  draws  checks  upon  the  ele- 
vator company  payable  to  the  bank,  and 
eharges  the  amount  thereof  against  the  ele- 
vator company  upon  the  books  of  the  bank, 
the  bank,  having  accepted  such  payment 
through  its  cashier,  cannot  retain  the  bene- 
fits of  his  act  without  accepting  the  conse- 
quences of  his  knowledge,  and  where  it 
does  so  retain  such  funds,  it  ratifies  the 
fraudulent  act  of  its  agent,  the  cashier, 
and  becomes  particeps  criminis  with  him, 
and  liable  to  the  elevator  company  for  the 
amount  so  fraudulently  transferred.  Eme- 
rado  Farmers'  Elevator  Co.  v.  Farmers' 
Bank,  29:  567,  127  N.  VV.  522,  20  N.  D.  270. 

44.  A  bank  is  chargeable  with  tlie  gen- 
eral manager's  knowledge  of  the  fact  that 
it  holds  a  note  which  has  been  altered  by 
its  general  manager;  and  if,  with  this 
knowledge,  it  accepts  payments  on  account 
of  the  note,  and  subsequently  assigns  the 
note  as  altered,  such  acts  amount  to  a 
ratification  of  the  act  of  the  manager  in 
altering  the  note.  Bodine  v.  Berg  (N.  J. 
Err.  &  App.)  40:  65,  82  Atl.  901,  82  N.  J.  L. 
662. 

c.  Liahility. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Officers  of  savings  bank,  see  infra,  240-242. 

Criminal  liability  of  officer,  see  infra,  VII. 

Effect  of  discharge  in  bankruptcy  of  part- 
ner acting  as  cashier  on  liability  for 
loss  resulting  from  mismanagement, 
see  Bankkuptcy,  177,  178, 

Liability  on  bonds  of,  see  Bonds,  41-44. 

See  also  infra,   189. 

Of  directors. 

Action    by    stockholders    and    depositors   to 

hold  directors  liable  for  loss,  see  supra, 

16. 
Multifariousness  of  bill  in  action  against, 

see  Action  on  Suit,  126. 
Liability  of  directors  of  insolvent  bank  to 

stockholders   for   illegal   dividends,   see 

Corporations,   165. 
Liability  of   distributees   of   deceased   bank 

director  for  losses  through  misfeasance, 

see  Descent  and  Distribution,  33. 
Jurisdiction  of  equity  of  bill  by  receiver  to 

hold     directors     liable     for     loss,     see 

Equity,   8. 
Digest  1-52  L.R.A.(N.S.) 


Right  of  delinquent  director  to  invoke 
statute  of  limitations,  see  Limitation 
of  Actions,  92. 

When  limitations  begin  to  run  against  lia- 
bility of,  see  Limitation  of  Actions, 
154. 

45.  The  directors  of  a  bank  are  not  held, 
as  a  matter  of  law,  to  know  all  its  aflairs, 
or  what  its  books  and  papers  would  show; 
and  such  knowledge  cannot  be  imputed  to 
them  for  the  purpose  of  charging  them  with 
liabilitv.  Mason  v.  Moore,  4:  597,  76  N.  E. 
932,  73"  Ohio  St.  275. 

46.  In  an  action  against  the  directors  of 
a  national  bank  by  one  who  purchases  some 
of  its  stock,  relying  on  the  statements  con- 
tained in  its  report  to  the  Comptroller  of 
the  Currency  as  to  its  resources  and  liabili- 
ties, Avhicli  report  was  attested  by  the  di- 
rectors and  published  as  the  statute  directs, 
some  of  which  statements  are  false,  whereby 
the  purchaser  is  damaged,  it  is  not  error 
for  the  court  to  charge  the  jury  that  "it 
must  appear  by  a  preponderance  of  the  evi- 
dence that,  at  the  time  of  the  attesting  and 
publication  of  said  report,  the  directors  so 
attesting  this  report,  or  who  assented  to 
and  directed  the  publication  of  the  same,  did 
so  knowing  said  report  to  be  false,  or  under 
such  circumstances  as  will  warrant  the  jury 
in  finding,  by  a  preponderance  of  the  evi- 
dence, that  such  director,  or  directors,  by 
the  exercise  of  ordinary  care  and  prudence, 
would  have  known  that  the  said  report  was 
false  in  some  one  or  more  of  the  particulars 
set  forth  in  the  petition."  Mason  v.  Moore, 
4:  597,  76  N.  E.  9.32,  73  Ohio  St.  275. 

47.  The  directors  of  a  bank  are  author- 
ized to  appoint  a  cashier  and  confer  upon 
him  the  usual  powers  pertaining  to  such  an 
office,  and  to  him  may  be  properly  confided 
the  custody  of  the  money,  securities,  and 
valuable  papers  of  the  bank,  and  the  super- 
vision of  its  books  and  accounts;  and  while 
this  does  not  absolve  the  directors  from  the 
duty  of  reasonable  supervision  and  the  ex- 
ercise of  that  degree  of  care  which  is  ex- 
ercised by  ordinarily  careful  and  prudent 
men  acting  under  similar  circumstances,  yet 
they  are  not  insurers  of  the  fidelitj'  of  the 
cashier  or  other  agents  whom  they  have  ap- 
pointed, and  where  the  dii-ectors  act  in 
good  faith  and  wiia  ordinary  care  thej'  are 
not  responsible  for  losses  resulting  from 
the  wrongful  acts  or  omissions  of  the 
cashier  or  other  agents  unless  the  loss  is 
a  consequence  of  their  own  neglect  of  duty. 
Mason  v.  Moore,  4:  597,  76  N.  E.  932,  73 
Ohio  St.  275.  (Annotated) 

48.  A  bank  director  cannot  be  held  liable 
for  breach  of  his  duty  as  such  in  inducing 
the  bank  to  extend  credit  to  an  individual 
beyond  the  statutory  limit,  and  in  making 
false  representations  as  to  paper  presented 
for  discount,  where  he  was  not  at  the  time 
acting  as  director,  but  as  agent  for  the  bor- 
rower. Hicks  V.  Steel,  4:  279,  105  N.  W. 
767,  142  Mich.  292.  (Annotated) 

49.  A  director  of  a  banking  corporation 
owes  no  duty  in  a  legal  sense,  by  reason  of 
his  office,  to  the  creditors  of  the  bank  or  to 


BANKS,  IV.  a,  1. 


249 


the   ptiblic.     Hart   v.   Evanson,   3:  438,    105 
N.  W.  942,  14  N.  D.  570. 

50.  The  directors  of  a  bank  are  liable 
only  to  the  corporation  whose  agents  or 
trustees  they  are,  for  violation  or  neglect 
of  their  official  duty.     Hart  v.  Evanson,  3: 

,   438,  105  N.  W.  942,  14  N.  D.  570. 

51.  In  the  absence  of  actionable  deceit, 
directors  are  not  directly  liable  in  dam- 
ages to  a  creditor  of  a  bank  for  loss  suf- 
fered by  the  creditor  through  the  insolvency 
of  the  bank  caused  by  the  directors'  neglect 
of  their  official  duties.  Hart  v.  Evanson, 
3:  438,  105  N.  W.  942,  14  N.  D.  570. 

52.  the  mere  fact  that  a  director,  who 
knows  that  the  bank  is  insolvent,  takes  no 
action  to  close  tlie  bank,  or  announce  its 
insolvency,  does  not  make  him  liable  for 
deceit  to  persons  who  extended  credit  after 
the  bank  became  insolvent  on  the  assump- 
tion that  it  was  solvent.  Hart  v.  Evan- 
son, 3:  438,  105  N.  W.  942,  14  N.  D.  570. 

(Annotated) 

53.  Directors  of  a  bank  are  not  person- 
ally liable  directly  to  depositors  for  the 
loss  of  deposit  accounts  through  the  in- 
solvency of  the  bank  due  to  their  negli- 
gence. United  States  Fidelity  &  G.  Co. 
V.  Corning  State  Sav.  Bank,  45:  421,  134 
N.  VV.  857,  154  Iowa,  588.  (Annotated) 

54.  The  directors  of  a  bank  are  liable  to 
depositors  and  stockholders  for  loss  sus- 
tained through  their  neglect  to  supervise 
the  acts  of  its  officers  as  required  by  its 
by-laws,  which  enables  the  officers  to  mis- 
appropriate funds  and  make  improvident 
and  unlawful  loans.  Ellis  v.  H.  P.  Gates 
Mercantile  Co.  43:982,  60  So.  649,  103  Miss. 
560. 

55.  The  directors  of  a  bank  are  not  per- 
sonally liable  to  stockholders  for  loss  due 
to  their  refusal  to  sell  stock  of  a  private  cor- 
poration which  they  had  taken  as  collateral 
and  had  been  compelled  to  take  over,  except 
on  condition  that  stock  held  by  them  indi- 
vidually should  be  purchased  also,  where 
the  corporation  owed  the  bank  a  large  sum 
of  money  so  as  to  make  it  advisable  to  main- 
tain some  control  over  its  affairs.  Bras- 
well  v.  Pamlico  Ins.  &  Bkg.  Co.  42:101,  75 
S.  E.  813,  159  N.  C.  628. 

IV.  Banking. 

a.  Deposits. 

1.  In  general;  nature  of;  liens  on. 

(See  also  same  heading  in  Digest  L.B.A. 
1-70.  J 

Eights  in  deposit  in  insolvent  bank,  see 
infra,  200-204. 

Deposits  in  savings  banks,  see  infra,  235, 
236. 

Eight  of  trustee  in  bankruptcy  to  bank  de- 
posit, see  Bankruptcy,  95. 

Officer's    liability  for  loss    of    public    funds 

;         deposited  in  bank,  see  Constitutional 

'         Law,  770;  Officers,  111-114. 

Digest   1-52  L.R.A.(N.S.^ 


Validity  of  statute  passed  after  depositor's 
disappearance  permitting  deposit  to  be 
administered,  see  Constitutional 
Law,  778. 

Contract  between  guardian  and  his  surety 
as  to  withdrawal  of  deposit  of  ward, 
see  Contracts,  450;  Guardian  and 
Ward,  20,  22, 

Presumption  as  to  ownership  of  deposit  in 
name  of  certain  person  as  "agent,"  see 
Evidence,  614. 

Sufficiency  of  evidence  to  show  that  money 
on  deposit  was  property  of  bankrupt 
corporation,  see  Evidence,  2092. 

Liability  of  executors  for  loss  of  deposit,  see 
Executors  and  Administrators,  69- 
71. 

Garnishment  of  bank  deposit,  see  Gar- 
nishment, 14,  16,  46,  51. 

Gift  of  bank  deposit,  see  Gifts,  9,  11-18, 
23,  26. 

Liability  of  guardian  for  loss  of,  by  bank's 
failure,  see  Guardian  and  Ward,  18- 
20. 

Liability  of  surviving  partner  for  interest 
on  money  deposited,  see  Interest,  16. 

Interest  on  deposit  in  bank  which  stops 
payment,  see  Interest,  44. 

Limitation  of  action  to  recover  deposit,  see 
Limitation  of  Actions,  146-148. 

Clients  as  necessary  parties  in  action  by  at- 
torney to  recover  money  of  clients  de- 
posited by  him,  see  Parties,  150. 

Deposits  of  public  money,  see  Public 
Moneys,  2-7. 

Subrogation  to  bank's  lien,  see  Subroga- 
tion, 6. 

Taxation  of  bank  deposits  to  credit  of  for- 
eign corporation,  see  Taxes,  78. 

Determining  value  of  bank  balance  for  pur- 
pose of  taxation,  see  Taxes,  184. 

Trover  for,  see  Trover,  7. 

Ademption  of  bequest  of  money  in  bank, 
see  Wills,  402. 

56.  The  effect  of  placing  money  in  a 
bank  on  general  deposit  is  to  i)ass  the  title 
immediately  to  the  bank,  and  to  create  the 
relation  of  debtor  and  creditor  between  the 
bank  and  the  depositor.  McGregor  v.  Bat- 
tle, 13:  185,  58  S.  E.  28,  128  Ga.  577. 

57.  A  general  deposit  of  money  in  a 
bank  is  not  a  loan.  Elliott  v.  Capital  City 
State  Bank,  1:1130,  103  N.  W.  777,  128 
Iowa,  275. 

58.  The  relation  of  bank  and  depositor 
exists  between  a  bank  and  a  railroad  com- 
pany where  the  former  purchases  county 
aid  bonds  and  places  the  amount  of  the  bid 
to  the  credit  of  the  railroad  company  paya- 
ble on  its  order.  Missouri  P.  R.  Co.  v.  Con- 
tinental Nat.  Bank,  17:  994,  111  S.  W.  574, 
212  Mo.  505. 

59.  The  creation  of  a  bank  account  sub- 
ject to  another's  check  is  not  prevented  from 
constituting  the  relation  of  bank  and  de- 
positor between  the  bank  and  such  person 
by  the  fact  that  his  right  to  the  fund  is 
subject  to  a  condition,  if  it  is  duly  per- 
formed. Missouri  P.  R.  Co.  v.  Continental 
Nat.  Bank,  17:  994,  111  S.  W.  574,  212  Mo. 
505. 


250 


BANKS,  IV.  a,  2. 


60.  Whether  or  not  a  bank  receiving  and 
crediting  to  a  depositor  a  cheek  on  another 
bank  is  entitled  to  enforce  it  as  owner  de- 
pendis  ui)on  its  having  been  the  intention  of 
tlie  parties  that  the  deposit  shall  be  treated 
as  cash,  wliich  fact  is  to  be  determined  by 
the  jury.  Fayette  Nat.  Bank  v.  Summers, 
7:  694,  64  S.  E.  862,  105  Va.  689. 

( Annotated ) 

61.  A  bank  gains  no  title  to  money  of  a 
man,  deposited  in  it  by  his  wife,  without 
authority,  where  neither  he  nor  his  wife 
had  any  account  there,  even  though  the 
bank  had  no  notice  that  the  wife  had  no 
title  to  the  money,  or  authority  to  deposit 
it.  Patek  v.  Patek,  35:  461,  131  N.  W.  1101, 
166  Mich.  446.  {'Annotated) 

62.  A  bank  which  pays  out  a  deposit  un- 
der garnishment  upon  a  judgment  against 
another  person  of  the  same  name  as  the 
depositor  is  liable  to  the  depositor  for  the 
amount.  O'Neil  v.  New  England  Trust  Co. 
11:  248,  67  Atl.  63,  28  R.  I.  311. 

( Annotated ) 

Special. 

Right  to  interest  on,  see  Costs  and  Fees, 
24. 

Damages  for  refusal  to  return,  see  Dam- 
ages, 624, 

What  is  special  deposit  not  subject  to  gar- 
nishment, see  Garnishment,  16. 

Conversion  of  special  deposit,  see  Troveb, 
16,  37. 

See  also  infra,  71,  204,  218,  244,  246. 

63.  Money  turned  over  to  the  officers  of 
a  bank  without  any  request  that  it  be  kept 
separate  from  the  other  funds  of  the  bank, 
and  which  was  entered  upon  the  books  as  a 
general  deposit,  and  a  certificate  of  dejwsit 
issued  for  the  amount,  which  is  later  with- 
drawn by  check,  has  all  the  cliaracteristics 
of  a  general  deposit,  and  is  entirely  lacking 
in  any  of  the  essential  elements  of  a  special 
deposit.  McGregor  v.  Battle,  13:  185,  58  S. 
E.  28,  128  Ga.  577. 

64.  A  special  deposit  is  affected  by  the 
delivery  to  the  depositary  of  checks,  under 
provisions  of  a  statute  by  which  the  leg- 
islature, which,  under  the  Constitution,  has 
no  authority  over  the  investment  of  tlie 
educational  funds  of  the  state,  permits  the 
state  treasurer  to  designate  a  depositary 
for  the  collection  of  commercial  paper  re- 
ceived by  him  on  account  of  such  funds. 
State  v.  Ross,  42:601,  104  Pac.  596,  55  Or. 
460. 

Trusts. 

Termination  of  trust  as  against  trustee  in 

bankruptcy,  see  Bankruptcy,  61. 
Executed  trust  in  deposit,  see  Trusts,  30. 
Establishing  trust  in  deposit  by  parol,  see 

Trusts,  32. 
See  also  infra,  70,  77-79,  209,  227. 

65.  The  same  relation  exists  between  a 
bank  and  one  who  deposits  money  therein 
in  his  own  name  as  "Atty.,"  as  would  exist 
between  the  bank  and  any  general  deposi- 
tor, Cunningham  v.  Bank  of  Nampa,  10: 
706,  88  Pac.  975,  13  Idaho,  167. 

66.  Money  collected  by  an  attorney  for 
clients,  and  deposited  in  a  bank  in  his  own 
name  as  "Atty.,"  may  be  recovered  for  the 
Digest  1-52  I<.R.A.(N.S.) 


use  and  benefit  of  the  parties  beneficially 
interested,  in  an  action  brought  against  tiie 
bank  and  an  ofiicer  who  attached  the  fund 
to  secure  an  individual  debt  of  the  attorney. 
Ciinningliam  v.  Bank  of  Nampa,  10:  706, 
88  Pac."  975,  13  Idaho,  167. 

67.  A  bank  is  justified  in  paying  over  a 
fund  deposited  with  it  by  an  attorney  in 
his  own  name  as  "Atty.,"  and  as  to  the 
ownership  of  which  it  has  no  other  informa- 
tion, to  an  ofhcer  levying  a  writ  of  attach- 
ment thereon  to  secure  an  individual  debt 
of  the  attorney.  Cunningham  v.  J5ank  of 
Nampa,  10:  706,  88  Pac.  975,  13  Idaho,  167. 

(Annotated) 

68.  A  bank  which  issues  to  its  customer 
a  certificate  of  deposit  in  liis  favor  as  guard- 
ian, the  funds  for  which  he  secures  from 
individual  sources  and  from  a  loan  by  it  on 
collateral  furnished  by  him  individually, 
which  certificate  he  needs  to  make  good  a 
defalcation  in  his  guardian's  account,  in 
order  to  secure  a  surety  on  his  guardian's 
bond,  is  charged  with  notice  that  he  there- 
by devotes  the  funds  to  the  use  of  his  ward, 
and  will  be  liable  to  the  estate  in  case  it 
accepts  a  surrender  of  the  certificate,  re- 
turns the  funds  represented  by  it  to  their 
original  sources,  and  surrenders  the  collat- 
eral, although  it  had  no  notice  of  the  de- 
falcation and  acted  in  good  faith  in  the 
transaction.  United  States  Fidelity  &  G. 
Co,  v.  Adoue,  37:  409,  137  S,  W,  648*,  138  S. 
W,  383,  104  Tex,  379, 

2.  Bank's  control  over;  application  of. 

Set-off  by,  against  depositor's  account,  ot 
note  against  him  as  preference,  see 
Bankruptcy,  80, 

Bank's  title  to  check  indorsed  to  it,  see 
Checks,  4-6, 

Set-off  by  bank  of  deposit  against  unma- 
tured note,  see  Corporations,  404; 
Set-Off  and  Counterclaim,  51, 

Damages  for  refusal  to  return,  see  Dam- 
ages, 624. 

Set-off  by  bank  summoned  as  garnishee,  see 
Garnishment,  46, 

Set-off  or  against  bank  generally,  see 
Set-Off  and  Counterclaim,  36,  37,  39, 
51, 

See  also  infra,  87,  204. 

69.  A  bank  must,  upon  receiving  notice 
of  an  adverse  claim  to  a  fund  in  its  de- 
positor's account,  exercise  diligence  in  noti- 
fying its  customer  of  the  claim  and  of  its 
intention  to  protect  itself  by  retaining  out 
of  his  account  a  sum  sufficient  to  meet  the 
claim.  Jaselli  v.  Riggs  Nat.  Bank,  31:  763, 
36  App.  D.  C.  159.  (Annotated) 

70.  Funds  in  a  bank  account  belonging 
to  several  beneficiaries,  which  were  deposit- 
ed by  a  trustee  who  reduced  the  account 
below  the  aggregate  of  the  claims,  will,  ex- 
cept as  to  such  deposits  as  remain  intact,  be 
distributed  ratably.  Boyle  v.  Northwestern 
Nat.  Bank,  i:  mo,  103  N.  W.  1123,  104  N. 
W.  917,  125  Wis.  498. 

71.  A  bank  which  accepts  a  deposit  of 
money  needed  by  the  depositor  for  a  special 


BANKS,  IV.  a,  3. 


251 


purpose,  under  the  agreement  that  it  will 
pay  the  amount  when  needed  for  that  pur- 
pose, cannot  apply  it  upon  tlie  depositor's 
general  indebtedness  to  it.  Smitli  v.  San- 
born State  Bank,  30:  517,  126  N.  W.  779, 
147    Iowa,  (540.  (Annotated) 

Applying;  on  note  (Cue  third  person. 

72.  Neither  a  cashier  nor  the  bank 
which  he  represents  cart  be  lield  liable  for 
his  disobedience  of  instructions  to  lend  a 
customer's  money  on  a  certain  note,  when  a 
certain  indorser  had  been  secured,  if  his 
promise  in  writing  had  been  obtained  to 
sign  the  note  before  the  transaction  was 
closed.  Petty  v.  Gacking,  33:  175,  133  S.  VV. 
832,    97    Ark.   217. 

Deposit  by  agent  or  factor. 
See  also  supra,  70. 

73.  Money  received  by  a  commission  mer- 
chant for  produce  sent  him  for  sale,  and 
deposited  by  him  in  his  general  account  in 
bank,  belongs  to  the  owners  of  the  produce, 
and  cannot  be  applied  by  the  bank  to  the 
obligations  of  the  merchant.  Boyle  v. 
Northwestern  Nat.  Bank,  1:1110,  103  N.  W. 
1123,  104  N.  W.  917,  125  Wis.  498. 

(Annotated) 

74.  A  consignor,  the  proceeds  of  whose 
property  have  been  deposited  by  a  broker  in 
his  general  bank  account  and  checked 
against,  can  hold  the  bank  liable  only  for 
the  lowest  amount  remaining  in  the  ac- 
count at  any  time  when  he  was  the  sole 
equitable  owner  of  the  account,  as  against 
the  rights  of  other  consignors,  the  proceeds 
of  whose  property  subsequently  swelled  the 
accoiuit.  Boyle  v.  Northwestern  Nat.  Bank, 
1:  1110,  103  N.  W.  1123,  104  N.  W.  917,  125 
Wis.  498. 

75.  Where  funds  belonging  to  several 
consignors  are  deposited  by  the  broker  in 
his  general  bank  account,  which  is  checked 
against,  and  thereby  reduced  below  the  ag- 
gregate amount  of  the  claims,  the  claim  rep- 
resented by  the  last  deposit  which  remains 
intact,  except  as  to  charges  properly  made 
against  it  at  the  time  the  fund  is  brought 
into  court  for  distribution,  is  entitled  to 
payment  of  its  net  balance  in  full.  Boyle 
V.  Northwestern  Nat.  Bank,  1:  iiio,  103  N. 
W.  1123,  104  N.  W.  917,  125  Wis.  498. 

76.  Persons  who  have  shipped  grain  to 
a  commission  merchant  for  sale,  the  pro- 
ceeds of  which  he  has  deposited  in  his  bank 
account,  cannot,  as  equitable  owners,  reach 
the  proceeds  of  property  belonging  to  other 
consignors,  which  the  merchant  had  trans- 
ferred to  the  bank  in  payment  of  his  own 
obligation  prior  to  the  receipt  of  the  prop- 
erty of  the  complaining  consignors.  Boyle  v. 
Northwestern  Nat.  Bank,  i:  1110,  103  N.  W. 
1123,  104  N.  W.  917,  125  Wis.  498. 

Duty  as  to  trust  funds. 
See  also  supra,  65-68. 

77.  A  bank  in  which  a  guardian  has  de- 
posited his  ward's  money  is  not  bound  to 
see  that  he  makes  a  proper  application  of 
the  funds.  Brookhouse  v.  Union  Pub.  Co, 
2:  993,  62  Atl.  219,  73  N.  H.  368. 

78.  A  bank,  upon  paying  trust  funds  to 
a  person  known  by  it  to  stand  in  a  trust 
relation  to  the  depositor,  with  notice  that 
Digest   1-52  KR.A.CN.S.) 


such  person  intends  to  misappropriate 
tliem,  renders  itself  liable  to  the  depositor 
to  tlie  amount  of  the  funds  so  paid. 
Emerado  Farmers'  Elevator  Co.  v.  Farmers' 
Bank,  29:  567,  127  N.  W.  522,  20  N.  D.  270. 

79.  A  bank  which,  through  its  president, 
as  one  of  the  creditors  of  a  manufacturing 
company,  has  agreed  with  it  and  the  other 
creditors  tliat  tlie  assets  of  the  company 
shall  be  collected  and  deposited  in  the  bank, 
to  be  divided  among  all  creditors  pro  rata, 
cannot,  upon  the  institution  of  bankruptcy 
proceedings  against  the  corporation,  set  ott' 
the  fund  so  accumulated  against  its  own 
claim,  since  the  fund  is  a  trust  deposit  for 
specitic  purposes,  created  with  the  knowl- 
edge and  consent  of  tlie  bank,  and  it  can- 
not, for  purposes  of  set-off,  treat  it  as  the 
individual  property  of  the  corporation.  Wag- 
ner V.  Citizens'  Bank  &  T.  Co.  28:  484,  122 
S.  W.  245,  122  Tenn.  164.  (Annotated) 

3.  Payment  of  checks;  forgeries. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Presumption  of  acceptance  of  check  from 
delay  in  returning,  see  Bills  and 
Notes,  65,  66. 

Presentation  of  negotiable  paper,  see  Bills 
AND  Notes,  IV.;   Checks,  II. 

As  to  rights  and  liabilities  on  checks  of 
persons  other  than  banks,  see  Checks. 

Estoppel  of  principal  by  failure  to  examine 
pass  book  to  deny  liability  for  agent's 
overdraft,  see  Estoppel,  187. 

See  also  infra,  149,  150,  237-239. 

80.  Ordinarily  the  issuance  of  a  b£i,nk 
draft  does  not,  prior  to  its  acceptance,  op- 
erate as  an  assignment  of  a  part  of  the 
fund  against  which  it  is  drawn.  Clark  v. 
Toronto  Bank,  2:  83,  82  Pac.  582,  72  Kan.  1. 

(Annotated) 

81.  The  bank  cashing  a  cheek  must  take 
proper  means  to  assure  itself  that  it  is'  paid 
to  the  proper  person, — especially  where  it 
is  presented  far  distant  from  the  residence 
of  drawee  or  payee.  Harmon  v.  Old  Detroit 
Nat.  Bank,  17:  514,  116  N.  W.  617,  153 
Mich.  73. 

82.  It  is  not  negligence  for  a  bank  to  pay 
a  check  in  excess  of  a  letter  of  credit  issued 
to  a  depositor  for  the  purpose  of  making  his 
checks  good  anywhere,  the  amount  of  the 
check  being  less  than  the  acti'al  deposit. 
Vogeli  v.  First  State  Bank,  19:  402,  96  Pac. 
490,  78  Kan.  264. 

83.  It  is  not  negligence  for  a  bank  to  pay 
a  check  written  on  the  blank  of  another 
bank  without  making  inquiry.  Vogeli  v. 
First  State  Bank,  19:  402,  96  Pac.  490,  78 
Kan.  264.  (Annotated) 

84.  Payment  of  a  check  wholly  written 
by  hand,  and  signed  "V.  P.  by  S.  P.,"  the 
"V.  P.  by"  having  been  written  by  a  hand 
other  than  the  "S.  P.,"  will  not  authorize 
charging  t!)e  amount  thereof  against  a  de- 
posit account  as  to  which  it  had  been  agreed 


,252 


BANKS,  IV.   a,   3. 


that  checks  drawn  thereon  should  be  hon- 
ored only  when  signed  either  "V.  P.  per 
S.  P.,"  written  wholly  by  S.  P.,  or  wlien 
drawn  npon  a  certain  printed  form  and 
signed  by  S.  P.,  although  the  signature  upon 
the  check  paid  was  liiat  of  fcj.  P.,  where 
checks  similar  in  form  to  that  paid  had 
never  been  issued  by  S.  P.,  and  in  fact  he 
liad  written  his  signature  upon  a  blank 
piece  of  paper  for  another  purpose,  and 
the  balance  of  the  check  had  afterward  been 
written  in  by  another,  without  authority, 
and  with  intent  to  defraud,  and  the  bank 
had  ample  time  to  inquire  as  to  the  valid- 
ity of  tlie  check  before  honoring  it.  Poliz- 
zotto  V.  People's  J3ank,  30:  206,  51  So.  843, 
125  La.   770.  (Annotated) 

85.  That  the  proceeds  of  overdrafts 
drawn  by  an  agent  without  authority  upon 
his  principal's  bank  account  went  to  pay  ex- 
penses of  the  principal's  business  does  not 
entitle  the  bank  to  charge  them  against  the 
account,  if  the  proceeds  were  used  merely 
to  replace  money  which  had  been  misappro- 
priated by  the  agent.  Merchants'  Nat.  Bank 
V.  Nichols  &  S.  Co,  7:  752,  79  N.  E.  38,  223 
III  41. 

86.  That  payment  of  an  overdraft,  un- 
der the  mistaken  belief  that  the  drawer  had 
funds,  was  made  by  the  bank  after  office 
hours  for  the  accommodation  of  the  payee, 
does  not  change  tlie  rule  that  payment  of 
such  draft  under  such  mistake  in  the  ordi- 
nary course  of  business  is  not  such  a  pay- 
ment under  mistake  of  fact  as  will  entitle 
the  bank  to  recover  the  money  from  the 
payee.  Spokane  &  E.  Trust  Co.  v.  Huff, 
33:  1023,  115  Pac.  80,  63  Wash.  225. 

(Annotated) 

87.  A  bank  which  pays  its  customer's 
check  on  funds  in  its  possession,  in  igno- 
rance of  the  drawer's  insolvency,  will  not 
be  permitted  to  compel  a  return  of  the  funds 
by  the  payee  merely  to  enable  it  to  utilize 
the  funds  so  paid  as  a  set-off  upon  its 
claim  against  the  depositor,  on  the  theory 
that  the  payment  was  made  under  a  mis- 
take. National  Exch.  Bank  v.  Ginn,  33: 
963,  78  Atl.   1026,   114  Md.   181. 

(Annotated; 

88.  A  bank  which  pays  coupons  made 
payable  to  bearer,  on  bonds  of  one  of  its 
depositors,  under  the  mistaken  belief  tli*t 
there  were  funds  on  deposit  to  meet  them, 
cannot  compel  the  payee  to  return  the 
amount  so  paid.  Citizens'  Bank  v.  Schwarz- 
schild  &  Sulzberger  Co.  23:  1092,  64  S.  E. 
954,  109  Va.  539.  (Annotated) 

89.  Failure  of  a  bank  to  comply  with 
the  rules  of  a  clearing  house  association, 
necessary  to  enable  it  to  compel  a  return  by 
another  member  of  the  association  of  funds 
paid  upon  a  worthless  check,  does  not 
destroy  its  right  to  compel  a  return  by 
the  payee  of  the  check  after  they  reach  his 
hands,  since  his  rights  or  liabilities  are  not 
affected  by  such  rules.  National  Exch. 
Bank  v.  Ginn,  33:  963,  78  Atl.  1026,  114  Md. 
181. 

90.  A  bank  is  not  liable  for  paying  a 
check  to  one  who  obtains  it  by  falsely  rep- 
resenting that  he  was  the  one  who  owned  a 
Digest  1-52  L.R.A.(N.S.) 


parcel  of  land,  and  securing  from  the  maker 
a  loan  secured  by  mortgage  upon  it,  to  se- 
cure the  money  for  which  the  check  was 
given,  where  the  cheek  was  paid  to  the 
person  for  whom  it  was  intended.  Mc- 
Henry  v.  Old  Citizens'  Nat.  Bank,  38:  mi, 
97  N.  E.  395,  85  Ohio  St.  203.  (Annotated) 
CHeck  mritli  invalid  indorsement. 

91.  A  bank  paying  a  check  upon  the  un- 
authorized indorsement  by  an  agent  of  the 
payee,  and  charging  the  amount  thereof  to 
the  drawer's  account,  becomes  liable  to  the 
payee  for  the  amount  of  such  check,  unless 
the  conduct  of  the  payee  excuses  such  pay- 
ment, or  prevents  him  from  asserting  such 
liability.  McFadden  v.  Folhath,  37:  201,  130 
N.   W.   542,   114  Minn.   85. 

Effect  of  draiver's  death. 

92.  A  bank  which  in  due  course  of  busi- 
ness, and  without  notice,  pays  a  check  of  a 
depositor  after  his  death,  is  not  bound  to 
account  to  his  personal  representative  for 
the  amount  so  paid.  Glennan  v.  Rochester 
Trust"  &  Safe  Deposit  Co.  52:  302,  102  N.  E. 
537,   209   N.   Y.    12. 

liiability   for   dishonoring    check. 

Instruction  as  to  eirect  of  failure  of  bank 
to  honor  check,  see  Appeal  a>'d  Eeror, 
1360. 

Punitive  damages  for,  see  Damages,  5. 

Measure  of  damages  for,  see  Damages,  212. 

Estoppel  to  decline  to  honor  check,  see  Es- 
toppel, 89. 

Evidence  to  show  damages  resulting  from 
wrongful  dislionor  of  check,  see  Evi- 
dence, 1751. 

Limitation  of  action  for  damages  from  fail- 
ure to  pay  check,  see  Limitation  of 
Agtions,  245. 

Bank's  authority  to  refuse  to  cash  check 
where  bank  credit  was  obtained  by 
forged  indorsement  through  connivance 
of  agent,  see  Principal  and  Agent,  79. 

93.  A  telegram  stating  that  a  certain 
person's  check  is  good  for  a  sum  named, 
sent  by  a  bank  in  response  to  a  telegiaphic 
inquiry  as  to  whether  such  person's  check 
is  good  for  that  amount,  does  not  import 
an  absolute  promise  to  pay  the  amount  of 
the  check,  or  constitute  a  contract  of  ac- 
ceptance external  to  the  bill.  First  Nat. 
Bank  v.  Commerciaf  Sav.  Bank,  8:  1148,  87 
Pac.  746,  74  Kan.  606.  (Annotated) 

94.  In  the  absence  of  either  prior  or  sub- 
sequent negligence  or  misleading  conduct 
on  the  part  of  a  depositor,  a  bank  cannot 
charge  him  with  any  payments  except  such 
as  are  made  in  conformity  with  his  order, 
no  matter  what  care  is  exercised  or  what 
precautions  are  taken  by  the  bank.  Nation- 
al Dredging  Co.  v.  Farmers'  Bank  16:  593, 
69  Atl.  607,  6  Penn.    (Del.)    580. 

95.  A  check  on  a  bank  in  which  the 
drawer  has  funds  subject  to  check  is  an  as- 
signment of  such  funds  of  the  drawer  to  the 
amount  of  the  check,  which  assignment  is 
complete  as  between  the  drawer  and  payee 
when  the  check  is  given,  and  complete  as 
between  the  payee  or  holder  and  the  bank 
when  the  check  is  presented  for  payment, 
and  upon  such  presentation,  the  bank,  un- 
less its  right  to  pay  has  been  taken  awa,/ 


BANKS,  IV.  a,  3. 


233 


by  some  occurrence  before  presentation,  is 
legally  bound  to  pay  the  check.  Wasgatt  v. 
First  Nat.  Bank,  43:  109,  134  N.  W.  224, 
117  Minn.  9. 

96.  The  drawee  bank  of  a  check  upon 
whicli  at  the  time  a  was  drawn  was 
stamped  in  the  lower  left-hand  corner,  and 
immediately  following  the  direction  to  the 
drawee  bank,  the  words,  "Payable  through 
(a  named  bank  in  anotiier  city)  at  cur- 
rent rate,"  need  not  pay  the  ciieck  when 
not  presented  through  the  named  bank,  but 
directly  by  a  third  bank.  Farmers'  IJank 
V.  Johnson,  King,  &  Co.  30:  697,  68  S.  E. 
85,  134  Ga.  486.  (Annotated) 

97.  A  bank  cannot  refuse  to  pay  a  check 
upon  itself,  because  of  delay  in  presenting 
it,  if  no  prejudice  to  its  rigiits  has  resulted 
therefrom.  Eobinson  v.  Pikeville,  37:  1186, 
142  S.  \V.  1065,  146  Ky.  538. 

98.  A  depositor  is  not  entitled  to  dam- 
ages for  a  bank's  refusal  to  honor  his  check 
al.er  he  has  closed  the  account  by  drawing 
the  balance  as  stated  by  the  bank,  althougU 
he  claims  that  the  bank  owes  him  an  ad- 
ditional amount,  and  that  it  wrongfully 
charged  against  his  account  the  claim  of  a 
stranger.  Jaselli  v,  Riggs  Nat.  Bank, 
31:  753,  36  App.  D.  C.  159. 

99.  A  bank  cannot  take  advantage  of 
the  refusal  of  its  customer  to  answer  ques- 
tions when  seeking  an  explanation  as  to 
its  refusal  to  honor  his  check,  where  it 
had,  without  notifying  him,  honored  a 
rival  claim  to  the  fund  and  paid  the  money 
out  of  his  account.  Jaselli  v.  Riggs  Nat. 
Bank,  31 :  763,   36  App.  D.  C.   159. 

100.  Where  presentation  of  a  check  makes 
the  bank  liable  therefor  to  the  hold- 
er, one  who,  after  giving  a  check,  signs  an 
order  directing  the  bank  to  pay  to  the 
holder  the  amount  of  such  check  if  it  is 
still  unpaid,  takes  the  risk  of  the  subse- 
quent presentation  of  such  check,  and  the 
bank  may  be  required  to  pay  both  checks 
if  the  deposit  account  has  funds.  South- 
em  Seating  &  Cabinet  Co.  v.  First  Nat. 
Bank,  29:  623,  68   S.  E.   962,   87    S.   C.   79. 

( Annotated ) 

101.  A  bank  which  honors  the  check  of  a 
customer  upon  a  deposit  account  based  upon 
a  draft  upon  which  he  had  forged  an  in- 
dorsement, by  placing  the  check  to  tfie  cred- 
it of  an  innocent  stranger,  and  authorizing 
him  to  check  against  such  credit,  cannot  re- 
fuse, because  of  the  original  fraud,  to  hon- 
or his  check  to  the  injury  of  an  innocent 
payee.  Robinson  v.  Pikeville,  37:  11 86,  142 
S.  W.  1065,  146  Ky.  538. 

Stopping  payment. 

Stopping    payment    of    check    for    purchase 

money  as  rescission  of  sale,  see  Sale, 

189. 
102.  Though  a  telegram  countermanding 
9,  cheque  may  reasonably  be  acted  upon  by 
a  banker,  at  least  to  the  extent  of  postpon- 
ing the  honoring  of  the  cheque  until  further 
inquiry  can  be  made,  yet  a  banker  is  not 
bound  as  a  matter  of  law  to  accept  an  un- 
authenticated  telegram  as  sufficient  author- 
ity for  refusing  payment.  Curtice  v.  Lon- 
don City  &  Midland  Bank,  Ltd.,  1  B.  R.  C. 
Digest  1-52  Ii.R.A^N.S.) 


417,  [1908]  1  K.  B.  293.  Also  Reported  in 
77  L.  J.  K.  B.  N.  S.  341,  98  L.  T.  N.  S.  190, 
24  Times  L.  R.  176.  (Annotated) 

103.  It  seems,  that  a  banker  may  expose 
himself  to  an  action  for  negligence  on  ac- 
count of  his  neglect  to  take  from  his  letter- 
box a  telegram  countermanding  payment  of 
a  cheque,  where  in  consequence  thereof  the 
cheque  has  been  paid  before  such  counter- 
mand is  brought  to  his  attention.  Curtice 
v.  London  Citv  &  Midland  Bank  Ltd.,  1 
B.  R.  C.  417,  [1908]  1  K.  B.  293.  Also  Re- 
ported in  77  L.  J.  K.  B.  N.  S.  341,  98  L.  T. 
N.  S.  190,  24  Times  L.  R.  176. 

104.  The  mere  delivery  of  a  telegram  by 
the  postoffice  authorities  to  a  bank,  al- 
though that  telegram  has  by  an  oversight 
never  been  opened,  and  has,  therefore,  never 
come  to  the  attention  of  the  banker,  does 
not  operate  as  a  countermand  of  payment 
of  a  cheque  within  the  meaning  of  a  statute 
providing  that  the  duty  and  authority  of  a 
banker  to  pay  a  cheque  drawn  on  him  by 
his  customer  are  determined  by  (1)  coun- 
termand of  payment,  and  (2)  notice  of 
the  customer's  death.  Curtice  v.  London 
Citv  &  Midland  Bank,  Ltd.  1  B.  R.  C.  417, 
[1908]  1  K.  B,  293.  Also  Reported  in  77 
L.  J.  K.  B.  N.  S.  341,  98  L.  T.  N.  S.  190, 
24  Times  L.  R.  176. 

105.  A  bank  is  liable  for  paying  a  check 
which  is  countermanded  by  the  drawer  be- 
fore accepted  by  the  bank,  although  it  has 
been  presented  to  the  bank  prior  to  cotinter- 
mand,  in  the  absence  of  funds  and  a  prom- 
ise secured  that  it  would  be  credite "  t~  the 
account  of  the  payee.  First  Nat.  Bank  v. 
School  Dist.  No.  4,  39:  655,  120  Pac.  614,  31 
Okla.  139.  f  Annotated) 

106.  Checks  are  but  inland  bills  of  ex- 
change and  subject  to  all  the  rules  appli- 
cable to  instruments  of  that  character,  and 
impose  no  obligation  upon  the  drawees  un- 
til accepted;  and,  until  presented  and  paid, 
are  revocable  by  the  drawer,  who  has  the 
legal  control  of  the  money  to  his  credit 
until  actual  acceptance  or  payment  of  the 
checks.  First  Nat.  Bank  v.  School  Dist.  No. 
4,  39:  655,  120  Pac.  614,  31  Okla.  139. 

b.  Forgeries, 

(1)   Jn  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

By  savings  bank,  see  infra,  237-239. 

Rights  and  liabilities  as  to  parties  other 
than  bank,  see  Checks,  V. 

Right  of  bank  which  has  paid  forged  check 
to  a  subrogation,  see  Subrogation,  40, 
41. 

Question  for  jury  as  to  care  and  diligence 
of  depositor,  see  Trial,  219. 

Inconsistency  between  general  and  special 
findings  in  action  by  depositor  to  re- 
cover amount  of  check,  see  Trial,  1143. 

See  also  infra,  182-186. 

107.  Neither  any  rule  of  law  nor  the  or- 
dinary course  of  business  renders  it  a  mat- 


254 


BANKS,  IV.  a,  3. 


ter  of  suspicion  that  the  body  of  a  check 
is  not  written  in  ilie  handwriting  of  the 
maker.  Nogeli  v.  First  State  Bank,  19:402, 
96  Pac.  490,  78  Kan.  264. 

108.  A  bank  which,  without  considera- 
tion, receives  a  sum  of  money  from  a  money 
lender,  to  be  delivered  to  one  of  his  custo- 
mers on  a  check  to  be  drawn  by  such  custo- 
mer, which  money  is,  in  good  faith,  paid  on 
a  check  received  in  due  course  of  business  at 
the  time  and  under  the  circumstances 
agreed  upon,  is  not  rendered  liable  for  tlie 
amount  so  paid  by  the  fact  that  the  check 
is  a  forgery,  since,  in  such  case,  the  bank 
is  a  gratuitous  bailee  merely,  and,  as  such, 
liable  only  in  case  of  failure  to  exercise  or- 
dinary care  and  good  faitii.  Peoples'  Nat, 
Bank  v.  Wheeler,  21:  816,  96  Pac,  619,  21 
Okla,  387.  (Annotated) 

109.  A  bank  Which,  acting  upon  tele- 
graphic instructions  to  pay  money  for  war- 
ranty deed,  if  regular,  to  a  named  person, 
pays  the  money  to  an  impostor  for  a  forged 
deed,  is  not  bound  to  relieve  its  correspond- 
ent from  the  loss  if  the  latter,  in  answer 
to  a  communication  from  the  impostor  in 
the  name  of  the  property  owner,  makes  an 
offer  for  the  land  and  closes  the  deal  by 
forwarding  a  deed  for  execution,  which  is 
done  by  the  one  to  whom  the  money  is 
paid,  and  directing  the  bank  to  pay  over 
the  money  for  the  deed.  Boatsman  v.  Stock- 
men's Nat.  Bank,  50:  107,  138  Pac.  764,  56 
Colo,  495. 

Recovery  back  by  drawee  of  amount 

paid. 
See  also  infra,  183;  Assumpsit,  44,  45, 

110.  The  drawee  of  a  forged  draft  may 
recover  back  the  amount  paid  upon  it  to 
one  whose  conduct  has  been  such  as  to  mis- 
lead him,  or  induce  him  to  pay  the  draft 
without  the  usual  security  against  fraud. 
Ford  v.  People's  Bank,  10:  63,  54  S.  E.  204, 
74  S,  C.  180.  (Annotated) 

111.  An  unrestricted  .  indorsement  of  a 
draft  by  a  holder  other  than  the  original 
payee  is  a  representation  that  the  signature 
of  the  drawer  is  genuine,  upon  which  the 
drawee  may  rely,  so  that,  in  case  it  proves 
to  be  a  forgery,  he  may  recover  back  the 
money  paid  upon  the  draft  to  the  indoraer. 
Ford  v.  People's  Bank,  10:  63,  54  S.  E,  204, 
74  S.  C.  180.  (Annotated) 

112.  A  bank  which  pays  a  forged  check 
to  the  payee,  who  took  it  without  identifica- 
tion of  the  drawer,  may  require  the  return 
of  the  amount  paid.  Newberry  Sav.  Bank 
v.  Bank  of  Columbia,  38:  1200,  74  S.  E.  615, 
91   S.  C.  294. 

113.  If  the  drawee  of  a  forged  check  or 
bill  of  exchange  pay  it  to  a  bona  fide  hold- 
er who  is  without  fault,  he  cannot  recover 
the  money  from  the  person  to  whom  pay- 
ment was  made.  Bank  of  Williamson  v. 
McDowell  County  Bank,  36:  605,  66  S.  E. 
761,  66  W.  Va.  545. 

114.  A  bank  which  pays  to  a  bona  fide 
holder  a  forged  check  purjwrting  to  be 
drawn  upon  it  by  one  of  its  depositors  can- 
not recover  the  amount  paid  from  the  inno- 
cent holder.  Pennington  County  Bank  v. 
liigest   1-52  L.R.A.(N.S.) 


First   State  Bank,  26:  849,   125  N.  W.   119, 
110   Alinii.    2G3. 

115.  Tlie  immunity  accorded  the  holder 
of  a  forged  clieck  wliich  is  paid  without 
fault  on  his  part,  being  an  exception  from 
the  general  rule  of  law  allowing  recovery 
of  money  paid  under  a  mutual  mistake  of 
fact,  does  not  extend  to  one  who  has 
omitted  some  precautionary  act  or  duty, 
usual  and  customary  among  bankers.  Bank 
of  Williamson  v,  McDowell  County  Bank, 
36:  605,  60  y,  E.  761,  66  W.  Va.  545. 

116,  The  payee  cannot  retain  money  re- 
ceived from  the  drawee  on  a  forged  check 
unless  he  was  free  from  negligence  in  re- 
ceiving the  check  and  the  drawee  did  not 
use  due  care  in  paying  it  and  ne  lias  changed 
his  position  or  would  be  in  a  worse  condi- 
tion if  the  mistake  was  corrected  than  if 
the  drawee  had  refused  to  pay  the  check 
at  the  time  of  its  presentment.  American 
Express  Co.  v.  State  Nat,  Bank,  33:  188,  113 
Pac.  711,  27   Okla.  824. 

117.  If,  in  case  a  bank  forwards  for  col- 
lection a  forged  check  upon  which  it  haa 
advanced  the  money,  both  parties  have  been 
guilty  of  negligence,  the  drawee  in  failing 
to  have  in  its  possession  any  means  of  test- 
ing the  genuineness  of  the  signature  of  the 
drawer,  and  tlie  paying  baiiK  in  lailiiig  to 
have  the  payee  identified,  when  he  is  un- 
known, the  former  cannot  recover  of  the 
latter.  Bank  of  Williamson  v,  McDowell 
County  Bank,  36:  605,  66  S.  E.  761,  66  W. 
Va.  545. 

118.  In  taking  a  forged  check  from  an 
unknown  person  for  collection,  without  in- 
quiry as  to  his  identity,  and  forwarding  it 
for  collection,  after  having  taken  the  in- 
dorsement thereon  of  the  reputed  payee  and 
placed  its  own  unrestricted  indorsement  on 
the  same,  a  bank  omits  a  precautionary 
duty  which  the  law  merchant  Oevolves  upon 
it  for  the  protection  of  the  drawee,  and 
makes  a  warranty  of  the  genuineness  of  the 
signature  of  the  payee,  which  it  cannot 
afterwards  deny;  wherefore  it  is  liable  to 
the  drawee  for  the  money  paid  on  the  check 
by  the  latter  in  ignorance  of  the  forgery, 
unless  the  latter,  by  omitting  some  duty 
resting  upon  it,  is  likewise  in  fault.  Bank 
of  Williamson  v.  McDowell  County  Bank, 
36:  605,  66  S.  E,  761,  66  W,   Va.  545. 

119.  *A  bank  which  cashes  a  forged  check 
payable  to  itself,  without  attempting  to 
identify  the  drawer,  cannot  avoid  returning 
the  funds  to  the  drawee  from  whom  it  col- 
lected them,  on  the  theory  that  it  should 
have  ascertained  the  forgery  and  notified 
the  payee,  to  enable  it  to  protect  itself, 
sooner  than  it  did,  where  there  was  noth- 
ing to  arouse  its  suspicion  as  to  the  gen- 
nuineness  of  the  check.  Newberry  Sav. 
Bank  v.  Bank  of  Columbia,  38:  1200,  74  S. 
E.  615,  91  S.  C.  294. 

120.  The  drawee  of  a  draft  purporting 
to  have  been  drawn  by  a  South  Dakota 
bank  upon  an  Illinois  bank,  but  to  which 
the  drawer's  name  had  been  forged,  which 
pays  the  draft  to  a  Nebraska  banker  to 
wliom  the  payee,  a  personal  acquaintance 
of     the    Nebraska    banker,    had     indorsed 


BANKS,  IV.  a,  3. 


255 


generally  and  sold  the  instrument  for  its 
face  value,  cannot  recover  back  the  amount 
so  paid  unless  it  pleads  anu  proves  that 
the  latter  was  negligent  in  purchasing  the 
instrument  or  in  indorsing  it,  or  witliheld 
from  the  drawee  at  the  time  the  draft  was 
paid  some  information  or  ground  for  sus- 
picion within  his  knowledge  concerning  the 
genuineness  of  the  instrument;  and  if  the 
one  cashing  the  draft  acted  in  good  faith 
in  the  transaction,  he  is  not  required,  in 
order  to  acquit  himself  of  a  cliarge  of 
negligence  in  purchasing  the  bill,  to  prove 
that  before  such  purchase  he  inquired  of 
the  drawer  whether  the  instrument  was 
genuine,  or  communicated  with  the  drawee 
to  learn  whether  the  bill  would  be.  accepted. 
State  Bank  v.  First  Nat.  Bank,  29:  100, 
127  N.  W.  244,  87  Neb.  351.  (Annotated) 
Draivee's  presumed  knowledge  of 
draiver's   signature.  . 

121.  In  the  absence  of  negligence  or  mis- 
conduct on  the  part  of  tlie  holder  of  forged 
paper  contributing  to  the  fraud,  by  which 
tlie  person  on  whom  it  purports  to  be  a 
check  or  acceptance  is  induced  to  part  witn 
money  on  the  faith  of  it,  such  person  must 
determine  at  his  peril  whether  the  signa- 
ture is  genuine.  Bank  of  Williamson  v.  Mc- 
Dowell County  Bank,  36:  605,  66  S.  E. 
761,  66  W.  Va.  545. 

122.  A  statutory  provision  that  the  ac- 
ceptor of  a  negotiable  instrument  admits 
the  genuineness  of  the  drawer's  signature 
does  not  apply  in  favor  of  one  who  acquired 
the  paper  without  any  consideration  what- 
ever therefor  either  present  or  past.  Title 
Guarantee  &  T.  Co.  v.  Haven,  25:  1308,  89 
N.  E.  1082,  196  N.  Y.  487. 

(2)    Altered  checTca. 

(See  also  same  heoAiing  in  Digest  L.R.A. 
1-10.) 

Raising  for  first  time  on  appeal  failure  to 

plead    estoppel    to    take    advantage    of 

raising     of     check,     see     Appeal     and 

Error,  727. 
Imputing  to  depositor  knowledge  of  agent 

as  to  fraudulent  alteration  of  check,  see 

Notice,  35,  36. 
Question  for  jury  as  to  negligence  of  bank 

in    cashing   altered   checks,   see  Trial, 

592. 

123.  A  depositor  cannot  be  charged  with 
the  amount  of  checks  containing  an  unau- 
thorized erasure  of  the  words  "the  order  of," 
and  an  insertion  of  the  words  "or  bearer," 
whereby  payment  is  made  by  the  bank  to  a 
person  other  than  the  payee.  National 
Dredging  Co.  v.  Farmers'  Bank,  16:593, 
69  Atl.  607,  6  Penn.  (Del.)  580. 
Negligence    of    depositor. 

Damages  for  depositor's  neglect  to  examine 
bank  book  and  vouchers,  see  Damages, 
101. 

Estoppel  of  depositor  by  negligence,  see 
1         Estoppel,  185,  186,  189. 

Digest  1-52  I,.R.A.(N.S.) 


Notice  to  agent  intnisted  with  examination 

of  passbook  as  notice  to  depositor,  see 

Notice,  35. 
Conduct  of  depositor  as  proximate  cause  of 

loss,  see  Proximate  Cause,  157,  158. 
Question  for  jury  as  to  care  and  diligence 

of  depositor,  see  Trial,  219. 

124.  It  is  the  duty  of  a  depositor  who 
has  caused  his  bank  book  to  be  written  up 
and  the  vouchers  returned,  to  examine  the 
account  so  rendered,  within  a  reasonable 
time.  National  Dredging  Co.  v.  Farmers' 
Bank,  16:  593,  69  Atl.  607,  6  Penn.  (Del.) 
580. 

125.  A  depositor  is  under  no  duty  to  the 
bank  so  to  conduct  the  examination  of  his 
bank  book  and  vouchers  that  it  will  neces- 
sarily lead  to  the  discovery  of  fraudulently 
altered  checks,  but,  if  he  examines  the 
vouchers  personally  and  is  himself  deceived 
by  their  skilful  character,  his  failure  to  dis- 
cover the  forgery  will  not  shift  upon  him 
the  loss  which,  in  the  first  instance,  is  the 
loss  of  the  bank.  National  Dredging  Co. 
V.  Farmers'  Bank,  16:  593,  69  Atl.  607,  6 
Penn.   (Del.)   580. 

126.  The  failure  of  a  depositor  to  notify 
the  bank  within  a  reasonable  time  after  the 
return  to  him  of  his  bank  book  and  vouch- 
ers, of  the  fact  that  checks  paid  by  the  bank 
in  the  exercise  of  due  and  reasonable  care 
have  been  fraudulently  altered,  constitutes 
a  defense  for  the  bank  to  the  depositor's 
suit  for  money  subsequently  paid  out  by 
the  bank  on  similar  checks.  National 
Dredging  Co.  v.  Farmers'  Bank,  16:  593, 
69  Atl.  607,  6  Penn.   (Del.)   580. 

127.  The  negligent  payment  of  altered 
checks  by  a  bank  is  not  excused  by  the  de- 
positor's failure  to  examine  his  bank  book 
and  vouchers  with  reasonable  care,  and  to 
report  to  the  bank,  within  a  reasonable 
time,  any  errors  or  mistakes.  National 
Dredging  Cq.  v.  Farmers'  Bank,  16:  593, 
69  Atl.  607,  6  Penn.   (Del.)   580. 

128.  A  depositor  who  fails  to  examine 
his  bank  book  and  vouchers  with  reasona- 
ble care  and  diligence,  and  to  notify  the 
bank  that  checks  paid  by  it,  in  the  absence 
of  negligence,  have  been  fraudulently  al- 
tered, is  liable  to  the  bank  for  all  damages 
sustained  by  it  in  consequence  of  his  omis- 
sion of  duty.  National  Dredging  Co.  v. 
Farmers'  Bank,  16:593,  69  Atl.  607,  6  Penn. 
(Del.)   580. 

(3)    Forged  indorsements. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Payment  by  person  other  than  bank,  of 
check  issued  to  impostor,  see  Checks, 
54,  55. 

Estoppel  to  claim  reimbursement  from 
bank,  see  Estoppel,  132. 

Evidence  that  one  to  whom  forged  check 
was  paid  was  the  one  whom  maker  in- 
tended to  receive  the  money,  see  Evi- 
dence, 1621. 


256 


BANKS,  IV.  a,  3. 


Interpleader  in  suits  by  payee  of  checks 
paid  under  forged  indorsement,  see  In- 
terpleader, 9. 

Notice  to  agent  of  forgery  as  notice  to 
principal,  see  Notice,  28. 

Who  may  maintain  action  for  payment  of 
check  on  forged  indorsement,  see  Pas- 
ties, 61. 

Agent's  authority  to  connive  at  forging  of 
indorsement  on  draft  to  be  used  for 
satisfying  judgment,  see  Principal 
AND  Agent,  79. 

Proximate  cause  of  payment  by  bank  of 
forged  check,  see  Proximate  Cause, 
158. 

See  also  supra,  101;  infra,  184-186,  232, 
238,  239. 

129.  The  indorsement  of  a  draft  in  his 
own  name  by  one  into  whose  hands  it  falls 
by  mistake,  being  payable  to  another  per- 
son bearing  the  same  name,  is  a  forgery, 
and  will  not  protect  a  bank  which  innocent- 
ly cashes  it  upon  such  indorsement  against 
the  claim  of  the  true  owner.  Thomas  v. 
First  Nat.  Bank,  39:  355,  58  So.  478,  101 
Miss.  500. 

130.  A  statute  making  a  check  dr9,wn  in 
favor  of  a  fictitious  payee  payable  to  bearer 
does  not  apply  where  its  execution  in  that 
form  was  secured  by  fraud.  Harmon  v.  Old 
Detroit  Nat.  Bank,  17:  514,  116  N.  W.  617, 
153  Mich.  73. 

131.  A  check  is  not  prevented  from  being 
drawn  in  favor  of  a  fictitious  person  by  the 
fact  that  the  name  of  a  known  individual 
is  inserted  therein  as  payee,  if  the  check 
was  not  intended  to  be  paid  to  such  person, 
but  the  name  was  not  intended  to  represent 
anj'one.  Jordan-Marsh  Co.  v.  National 
Shawmut  Bank,  22:  250,  87  N.  E.  740,  201 
Mass.   397. 

132.  A  draft  secured  from  a  bank,  which, 
for  a  fraudulent  purpose,  without  its  knowl- 
edge, is  made  payable  to  one  having  no  in- 
terest in  the  transaction,  whose  indorse- 
ment is  subsequently  forged  thereon  by  the 
person  guilty  of  the  fraud,  is  not  payable 
to  the  order  of  a  fictitious  or  nonexistent 
person  if  the  bank  does  not  understand  such 
to  be  the  fact,  within  the  meaning  of  the 
negotiable  instruments  law,  making  drafts 
in  favor  of  such  persons  payable  to  bearer. 
Seaboard  Nat.  Bank  v.  Bank  of  America, 
B2:  499,  85  N.  E.  829,  193  N.  Y.  26. 

(Annotated) 

133.  A  bank  which  collects  checks  cashed 
by  it  on  forged  indorsements  is  not  liable 
for  money  had  and  received  to  the  use  of 
the  payee,  where  the  rule  is  that  no  con- 
tractual relation  exists  between  the  payee 
and  drawee  of  an  unaccepted  check,  and  the 
fact  that  the  payee  credits  the  drawers  with 
the  amount  of  the  checks  is  immaterial. 
Tibby  Bros.  Glass  Co.  v.  Farmers'  &  M. 
Bank,    15:  519,   69   Atl.   280,   220   Pa.    1. 

(Annotated) 

134.  One  who  delivers  a  check  payable  to 
a  borrower  to  the  latter's  agent,  to  be  trans- 
mitted to  the  borrower,  does  not  intend  that 
it  shall  be  indorsed  and  collected  by  him,  so 
as  to  relieve  the  bank  from  further  liability 
Digest  1-62  KR.A.(N.S.) 


in  case  it  pays  the  check  to  him  on  his  in- 
dorsement of  his  principal's  name  and  his 
own  upon  it.  Goodfellow  v.  First  Nat. 
Bank,   44:  580,    12iJ   I'ac.   90,   71    Wash.   554. 

135.  Drawers  of  a  clieck  made  payable  to 
a  customer  to  whom  they  are  indebted,  and 
forwarded  to  an  agent  for  delivery,  cannot 
recover  the  amount  of  the  check  from  a 
bank  in  which  the  agent  has  deposited  it 
to  his  own  credit,  having  forged  the  name 
of  the  payee,  the  drawee  bank  having  later 
paid  the  check  on  the  forged  indorsement 
in  the  ordinary  course  of  business,  where 
the  agent,  being  short  in  his  accounts  with 
his  principals,  transferred  to  tlieir  names  a 
part  of  his  account,  which  included  the  pro- 
ceeds of  the  forged  check,  since  such  pro- 
ceeds came  back  to  them,  and  the  shortage 
of  the  agent  remaining  unpaid,  they  suHered 
no  damage  by  reason  of  the  paymi-nt  of 
the  check  by  the  defendant  bank,  and  it  is 
immaterial  that  credit  instead  of  cash  was 
used  in  the  transaction.  Andrews  v.  North- 
western Nat.  Bank,  25:  996,  117  N.  W.  621, 
780,  122  N.  W.  499,  107  Minn.  196. 

(Annotated) 

136.  A  bank  which  pays  to  an  agent  a 
check  drawn  to  the  order  of  his  principal 
upon  his  placing  thereon,  without  authority, 
the  name  of  his  principal  and  his  own  must 
make  good  the  amount  to  the  drawer.  Good- 
fellow  v.  First  Nat.  Bank,  44:  580,  129  Pac. 
90,  71  Wash.  554. 

137.  A  bank  which  cashes  a  draft  upon 
indorsement  of  the  payee's  name  by  his 
attorney-at-law,  who  has  it  in  his  posses- 
sion, is  bound  to  make  good  the  loss  to  the 
pavee.  Brown  v.  People's  Nat.  Bank,  40: 
657,  136  N.  W.  506,  170  Mich.  416. 

138.  A  bank  which  has  collected  a  check 
deposited  by  one  who  has  forged  the  payee's 
indorsement  thereto  is  not  relieved  from  lia- 
bility to  the  drawer  for  the  full  amount  of 
the  check  by  the  fact  that  the  forger  ad- 
vanced to  the  drawer  a  sum  of  money  to 
aid  him  to  meet  the  check,  so  tliat  the 
drawer  has  in  fact  lost  only  the  difference; 
since  he  may  still  be  liable  to  account  for 
the  sum  borrowed.  North  and  South  Wales 
Bank  v.  Macbeth,  3  B.  R.  C.  748,  [1908] 
A.  C.  137.  Also  Reported  in  77  L.  J.  K.  B. 
N.  S.  464,  98  L.  T.  N.  S.  470,  24  Times  L.  R. 
397,  13  Com.  Cas.  219,  52  Sol.  Jo.  353,  354. 
Bank's  duty  to  discover  genuineness. 
Proximate    cause   of    payment    by    bank    of 

forged    check,    see    Proximate    Cause, 
158. 

139.  The  duty  of  the  bank  to  identify  the 
one  to  whom  a  check  is  paid  is  not  changed 
by  the  fact  that  the  name  of  a  fictitious 
payee  was  fraudulently  inserted  before  it 
was  signed  by  the  drawer.  Harmon  v.  Old 
Detroit  Nat.  Bank,  17:  514,  116  N.  W.  617, 
153  Mich.   73.  (Annotated) 

140.  A  bank  cannot  justify  payment  of  a 
check  fraudulently  drawn  in  favor  of  a  fic- 
titious payee  by  the  fact  that  the  check 
came  to  it  through  other  banks  which  had 
cashed  it,  since  their  negligence  is  imputed 
to  it.  Harmon  v.  Old  Detroit  Nat.  13ank, 
17:  514,  116  N.  W.  617,  153  Mich.  73. 

141.  The  duty  of  a  bank  to  its  depositor 


BAI^KS,  IV.  a,  4,  b,  1. 


257 


to  pay  checks  only  to  the  payee  or  upon  his 
order  is  not  affected  by  the  fact  that  the 
check  is  collected  througli  a  clearing  house, 
upon  a  guaranty  of  indorsements  by  a  rep- 
utable bank.  Jordan-Marsh  Co.  v.  National 
Shawmut  Bank,  22:  250,  87  N.  E.  740,  201 
Mass.  397. 

142.  Payment  by  a  bank  of  a  check  upon  a 
forged  indorsement  of  the  name  of  the  payee, 
witliout  inquiry  as  to  its  genuineness,  carf- 
not  be  called  constructive  negligence.  Jor- 
dan-Marsh Co.  V.  National  Shawmut  Bank, 
22;  250,  87  N.  E.  740,  201  Mass.  307. 

143.  A  bank  cannot  escape  liability  for 
payment  of  a  check  upon  a  forged  indorse- 
ment, by  the  fact  that  it  was  made  payable  to 
a  fictitious  or  nonexistent  person,  through 
negligent  failure  to  discover  the  fraud  by 
which  it  was  obtained.  -Tordan-Marsh  Co. 
V.  National  Shawmut  Bank,  22:  250,  87  N. 
E.   740,   201   Mass.   397. 

Duties  and  liabilities  of  depositor. 

Estoppel  to  claim  reimbursement  from  bank, 
see  Estoppel,  132. 

Notice  to  agent  of  forgery  as  notice  to  prin- 
cipal, see  Notice,  28. 

See  also  supra,  124-128. 

144.  The  drawer  of  a  check  who  mails  it 
to  the  wrong  address,  without  anything  on 
it  to   identify   the  drawee,   cannot,   because 


147.  Demand  must  be  made  for  payment 
of  a  certificate  of  deposit  payable  without 
interest  on  return  of  the  certificate  properly 
indorsed,  within  the  time  limited  for  bring- 
ing an  action  upon  such  certificate.  Pierce 
V.  State  Nat.  Bank,  46:  693,  101  N.  E.  1060, 
215  Mass.  18. 

148.  A  bank  is  not  bound  to  pay  over  to 
an  administrator  money  deposited  l3y  a  per- 
son since  deceased,  until  the  certificate  of 
deposit  executed  by  it  is  surrendered  or 
impossibility  of  surrender  is  shown.  Divine 
V.  Unaka  Nat.  Bank,  39:  586,  140  S.  W.  747, 
125  Tenn.  98. 

149.  The  cashing  by  a  bank  of  certifi- 
cates of  deposit  issued  to  the  order  of 
certain  minors  "or  guardian,"  on  tlie  order 
of  one  who  made  the  deposits  and  pur- 
ported to  act  as  guardian  in  the  trans- 
action, does  not  discharge  the  bank  from 
liability  to  such  minors,  where  the  one  to 
whom  the  payment  was  made  was  not  in 
fact  the  guardian,  since  the  bank,  by  pay- 
ment to  one  not  actually  named  in  the 
certificates,  acted  at  its  peril  that  such 
person  was  a  legally  appointed  guardian. 
McMahon  v.  German-American  Nat.  Bank, 
29:  67,  127  N.  W.  7,  111  Minn.  313. 

(Annotated) 

150.  A  bank  which  cashes  a  certificate  of 


of  his  own  negligence,  hold  the  bank  liable    deposit    made    payable    "to    the    order    of 


for  paying  tlie  check  on  the  indorsement  of 
one  bearing  the  same  name  as  the  drawee, 
to  whom  the  letter  was  delivered  by  the 
postoffice  department,  where  the  check 
came  through  the  regular  channels  of 
collecting  banks  with  indorsements  guaran- 
teed. S.  Weisberger  Co.  v.  Barberton  Sav- 
ings Bank  Co.  34:  iioo,  95  N.  E.  379,  84 
Ohio   St.  21.  (Annotated) 

145.  The  duty  of  the  depositor  to  examine 
his  return  vouchers  does  not  extend  to  an 
examination  of  the  signatures  of  the  indors- 
ers  to  determine  their  genuineness.  Jordan- 
Marsh  Co.  V.  National  Shawmut  Bank,  22: 
250,  87  N.  E.  740,  201  Mass.  397. 

14(5.  That  a  bank  which  has  paid  checks 
upon  forged  indorsements  cannot  show  that 
it  could  have  protected  itself  had  it  re- 
ceived prompt  notice  of  the  forgery  will 
not  prevent  the  failure  to  give  such  notice 
from  depriving  the  depositor  of  his  right 
to  require  the  bank  to  make  good  to  his  ac- 
count the  amount  of  payment  so  made. 
McNeelv  Co.  v.  Bank  of  North  America*, 
20:79/70    Atl.    891,    221    Pa.    588. 

(Annotated) 

4.  Certificate  of  deposit. 

(See   al/to   same   heading  in  Digest   L.R.A. 

1-70.) 

Indorsement  of,  by  trustee,  see  Bills  and 
Notes,  183. 

Transfer  of  certificate  of  deposit  to  secure 
money  for  gambling  purposes,  see  Con- 
tracts, 530. 

Running  of  limitations  against  action  on, 
see  Limitation  of  Actions,  129,  130, 
143-145,  218. 

Inheritance  tax  on,  see  Taxes,  340. 

Oisest  1-52  I..R.A.(N.S.)  17 


T.,  guardian,"  upon  the  order  of  T.,  wlio 
had  not  in  fact  been  appointed  guardian, 
is  not  thereby  discharged  from  liability  to 
the  minor  wards,  where  such  certificate 
was  issued  to  T.  upon  surrender  by  him 
of  the  original  certificate,  which  had  been 
made  payable  to  such  minors  "or  guard- 
ian," as  the  original  certificate  determined 
the  obligation  of  the  bank,  since  the  true 
owners,  being  minors,  could  not  be  estopped 
by  the  unauthorized  issuing  of  the  sec- 
ond certificate.  McMahon  v.  Ocrman-Amer- 
ican  Nat.  Bank,  29:  67,  127  N.  W.  7,  111 
Minn.  313. 

6.   Collections, 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Allegations  as  to  negligence,  see  Assump- 
sit, 7 ;   Pleading,  284. 

Rights  of  drawer  of  chock  not  collected 
through  bank's  negligence,  see  As- 
sumpsit,  46. 

Presentment  of  negotiable  paper  at  bank 
for  payment,  see  Bills  and  Notes,  IV. 

Liability  of  bank  collecting  draft  with  bill 
of  lading  attached,  see  Bills  of  Lad- 
ing. 

Criminal  liability  of  bank  collecting  draft 
attached  to  bill  of  lad'ng  for  liquor, 
see  Intoxicating  Liquors,  97. 

Time  for  presenting  check  for  payment  gen- 
erally, see  Checks,  9-15. 

Measure  of  damages  for  negligence,  see 
Damages,  213,  214. 

Evidence  of  custom  as  to,  see  Evidence, 
1525. 


t9» 


BANKS,  IV.  b,  1. 


Parol  evidence  to  explain  indorsement  by 
bank,  of  note,  see  Evidence,  996. 

Attaching  proceeds  of  draft  witli  bill  of 
lading  attached  in  hands  of  collecting 
bank,  see  Gab.nisjiment,  1. 

Retrospective  operation  of  statute  as  to  lia- 
bility of  collecting  bank,  see  Statutes, 
302. 

See  also  Checks,  5. 

151.  Where  a  vendor  in  a  sale  of  land 
that  had  been  effected  by  correspondence 
followed  the  suggestion  of  the  vendee's  agent 
that  he  send  the  deed  for  the  land  to  a 
local  bank  where  it  would  be  taken  up  by 
the  vendee,  and  so  sent  the  deed  with  a 
sight  draft  for  the  unpaid  portion  of  the 
purchase  price,  together  with  specific  in- 
structions to  deliver  the  deed  on  payment 
of  such  draft,  and  to  remit  the  proceeds 
by  New  York  or  Chicago  exchange,  the  bank 
was  the  vendor's  agent  for  the  collection  of 
such  draft  and  the  confirmation  of  the  deal 
by  the  delivery  of  the  deed.  Schafer  v.  Ol- 
son, 43:  762,  139  N.  W.  983,  24  N.  D.  542. 

152.  If  the  holder  of  a  check  indorses 
it,  and  deposits  it  for  credit  and  collection 
in  another  bank,  the  collecting  bank,  if  the 
check  is  not  paid  and  it  is  without  fault 
in  forwarding  it  for  payment,  has  the 
right,  on  its  return,  to  charge  it  back  to 
its  customer,  or  recover  the  amount  if  he 
has  in  the  meantime  withdrawn  the  money. 
Pinkney  v,  Kanawha  Valley  Bank,  32:  987, 
69  S.  £.  1012,  68  W.  Va.  254. 

153.  The  holder  of  a  note  payable  at  a 
particular  bank,  who,  at  the  request  of  the 
maker,  forwards  it  to  another  bank  at 
which  he  was  doing  business,  for  collection, 
does  not  make  the  latter  his  agent,  so  that 
the  loss  will  fall  on  him  in  case  it  fails 
after  collecting  and  surrendering  the  note, 
but  before  it  forwards  th«  proceeds.  Vir- 
ginia Carolina  Chemical  Co.  v.  Steen,  34: 
734,  55  So.  47,  99  Miss.  504.       (Annotated) 

154.  A  collecting  bank  which  returns  to 
the  drawee  money  paid  on  the  check  because 
it  receives  notice  that  the  check  is  fraudu- 
lent cannot,  in  an  action  by  its  principal  to 
hold  it  liable  for  the  fund  so  returned,  set 
up  the  fact  that  the  principal  had  notice  of 
the  fraud,  and  therefore  could  not  have  en- 
forced payment  of  the  check  against  tlie 
drawee.  Monongahela  Bank  v.  First  Nat. 
Bank,  26:  1098,  75  Atl.  359,  220  Pa.  270. 

(Annotated) 

155.  When  a  bank  holding  a  note  for  col- 
lection surrendered  it  to  the  maker  in  ex- 
change for  his  worthless  check  upon  another 
bank,  but,  upon  the  dishonor  of  the  check, 
regained  possession  of  the  note  as  a  subsist- 
ing obligation  against  all  makers  and  indors- 
ers,  and  no  actual  prejudice  resulted  to  the 
owner  from  the  transaction,  which  took  place 
after  the  close  of  banking  hours  upon  one  | 
day  and  before  their  opening  on  the  next, 
no  liability  was  thereby  created  against  the 
collecting  bank  in  favor  of  the  owner  of  the 
note.  Interstate  Nat.  Bank  v.  Ringo,  3:  1179, 
83   Pac.   119,   72  Kan.   116.  (Annotated) 

156.  After  a  collecting  bank  presents  a 
check  for  payment,  gives  notice  of  dishonor, 
Dieest  1-52  I..R.A.(N.S,) 


and  charges  it  back  to  the  payee,  it  is  not 
its  duty  to  present  a  claim  in  bankruptcy 
against  the  estate  of  the  bank  on  which  it 
was  drawn,  since  the  check  is  then  the 
property  of  tlie  payee,  who  alone  can  file 
<uch  a  claim.  ITciulrix  v.  JofFersnii  County 
Sav.  Bank,  14:  686,  45  So.  136,  153  Ala.  636. 
I'u.  A  hank  wliieh,  ui)on  receiving  a  note 
for  collection,  indorses  it,  "Previous  indorse- 
ments guaranteed.  Pay  to  the  order  of  any 
bank  or  banker;"  and  forwards  it  to  a.  cor- 
respondent for  collection, — does  not  render 
itself  liable  on  the  paper.  Johnston  v. 
Schnabaum,  17:838,  109  S.  W.  1163,  86 
Ark.  82, 

158.  A  collecting  bank  does  not  make  a 
check  received  for  collection  its  own  because 
after  dishonor  it  fails  to  return  it  to  its 
owner  when  the  check  is  in  the  hands  of 
the  receiver  in  bankruptcy  of  the  bank  on 
which  it  was  drawn.  Hendrix  v.  Jeilerson 
County  Sav.  Bank,  14:  686,  45  So.  138, 
153  Ala.   636. 

159.  The  mere  retention,  by  the  owner, 
of  a  check  returned  to  him  protested  by  a 
collecting  agent,  is  not  a  ratification  of  the 
latter's  act  in  refunding  money  paid  on  the 
check,  under  a  claim  that  it  was  fraudulent- 
ly issued,  where  he  has  no  notice  that  the 
check  had  been  paid  and  the  money  re- 
turned. Monongahela  Bank  v.  First  Nat. 
Bank,  26:  1098,  75  Atl.  359,  226  Pa.  270. 
Title   to   paper. 

Parol  evidence  as  to  indorsement  of  checks 
for  collection,  see  Evidence,  993. 

Variance  between  pleading  and  proof  as  to 
title,  see  Evidence,  2472. 

160.  That  a  bank  receiving  commercial 
paper  for  collection  permits  the  holder  to 
draw  the  amount  of  it  before  the  collection 
is  made,  does  not  change  the  relation  of  the 
parties  to  it.  Winchester  Milling  Co.  v. 
Bank  of  Winchester,  18:  441,  111  S.  W.  248, 
120  Tenn.  225. 

161.  An  unrestricted  indorsement  of  a 
check  confers  on  the  indorsee  the  legal 
title  and  the  right  to  sue  thereon,  although 
the  check  is  taken  for  collection.  Citizens' 
State  Bank  v.  E.  A.  Tessman  &  Co.  45: 
606,   140   N.   W.   178,   121   Minn.   34. 

162.  Where  certain  checks  are  deposited 
by  the  payee  to  his  account  in  a  bank,  and 
immediately  thereafter  he  draws  on  his 
account  in  favor  of  the  drawer  of  the 
checks,,  in  such  an  amount  as  to  leave  his 
account  with  the  bank  overdrawn  upon  a 
dishonor  of  the  checks  deposited,  and  there- 
after other  checks  are  substituted  by  the 
drawer  of  the  first  checks  for  the  dis- 
honored ones,  and  these  indorsed  unre- 
strictedly, and  deposited  for  collection  by 
the  payee  with  the  bank,  to  make  good  his 
overdraft,  and  thereupon  the  drawer,  wi!;h 
knowledge  of  the  possession  of  the  checks 
by  the  bank,  settles  with  the  depositor, 
and  stops  payment  on  the  substituted 
checks,  an  action  may  be  maintained  by 
the  bank  against  the  drawer  on  the  checks. 
Citizens'  State  Bank  v.  E.  A.  Tessman  4 
Co.  45:  606,  140  N.  W.   178,   121   Minn.  34. 

163.  An  agency  coupled  with  an  interest 
in  favor  of  the  bank  is  created  by  the  de- 


BANKS,  IV.  b,  1. 


259 


posit  in  a  bank  of  checks  unrestrictedly 
indorsed,  in  lieu  of  previously  dishonored 
checks,  and  to  cover  an  overdraft  created 
thereby;  and  the  depositor  has  no  power 
to  revoke  the  agency,  or  to  demand  a  re- 
turn of  the  checks  or  their  proceeds,  or  to 
prejudice  the  rights  of  the  bank  by  a 
settlement  with  the  drawer,  so  long  as  the 
overdraft  is  unpaid.  Citizens'  State  Bank 
V.  E.  A.  Tessman  &  Co.  45 :  606,  140  N.  W. 
178,   121    Minn.   24. 

164.  The  relation  of  debtor  and  creditor, 
and  not  that  of  principal  and  agent,  is  cre- 
ated between  a  trust  company  and  one  who 
sends  to  it  for  credit  to  his  account  a  check 
drawn  by  him  on  another  bank,  in  favor  of 
the  trust  company,  so  that,  as  between  him 
and  the  bank  on  which  tiie  check  is  drawn, 
he  must  bear  the  loss  caused  by  the  in- 
solvency of  the  trust  company,  where  it 
places  the  check  to  his  credit  and  sends  it 
for  collection  to  the  drawee  bank,  which 
pays  it  without  knowledge  of  the  trust 
company's  insolvency.  Plumas  County  Bank 
V.  Bank  of  Rideout,  Smith,  &  Co.  47:  552, 
131  Pac.  360,  165  Cal.  126.  (Annotated) 
Notice  as  to  title  from  indorsement. 

165.  An  indorsement,  by  a  bank,  of  a  note 
to  pay  to  the  order  of  any  bank  or  banker, 
shows  on  its  face  that  it  passes  title  for 
collection  only.  Johnston  v.  Schnabaum,  17: 
838,  109  S.  W.  1163,  86  Ark.  82. 

Care  in  selecting  correspondent. 

166.  In  the  absence  of  a  controlling  stat- 
ute or  agreement,  a  bank  selects  its  agent 
for  collection  at  its  own  rislc;  and  where  a 
check  payable  in  another  city  is  deposited, 
to  be  credited  to  the  depositor,  and  is  paid 
to  a  bank  to  which  the  bank  of  deposit  has 
forwarded  it  for  collection,  the  bank  of  de- 
posit is  liable  to  the  depositor,  although  the 
collecting  bank  does  not  remit  the  collec- 
tion. Brown  v.  People's  Bank,  52:  608,  52 
So.  719,  59  Fla.  163. 

Sending  directly  to  bank  required  to 

pay. 
Damages   for   negligence   in,   see   Damages, 

213,  214. 

167.  Sending  a  check  for  collection  to  the 
drawee  bank  is  prima  facie  negligence  on 
the  part  of  the  collecting  bank;  at  least, 
when  it  is  a  cashier's  check  on  his  own 
bank.  Jefferson  County  Sav.  Bank  v.  Hen- 
drix,  1 :  246,  39  So.  295,  147  Ala.  670. 

168.  Generally  it  is  negligence  for  a  col- 
lecting bank  to  send  checks  direct  to  the 
drawee  bank,  and  the  fact  that  the  drawee 
bank  is  the  only  one  in  the  place  where 
it  is  located  is  immaterial.  Pinkney  v. 
Kanawha  Valley  Bank,  32:  987,  09  S.  E. 
1012,  68  W.  Va.  254. 

169.  The  custom  of  the  banks  at  the 
place  where  the  collecting  bank  is  located, 
of  sending  checks  to  a  drawee  bank,  will 
not  justify  the  sending  of  a  check  directly 
to  a  drawee.  Pinkney  v.  Kanawha  Valley 
Bank,  32:  987,  69  S.  E.  1012,  68  W.  Va.  254. 

170.  A  custom  of  a  bank  to  send  paper  re- 
ceived for  collection  to  the  bank  on  which 
it  is  drawn  is  void  for  unrea  onableness. 
Farley  Nat.  Bank  v.  Pollak,  2:  194,  39  So. 
612,  145  Ala.  321.  (Annotated) 
Digest  1-52  I^R.A.(N.S.) 


171.  A  bank  receiving  a  check  for  collec- 
tion is  negligent  in  sending  it  to  the  drawee, 
althougli  it  is  the  only  bank  in  the  place 
where  it  is  located.  Winchester  Milling  Co. 
V.  Bank  of  Winchester,  18:  441,  111  S.  W. 
248,  120  Tenn.  22o.  (Annotated) 

172.  The  drawing  of  a  check  on  a  good  ac- 
count is  discharged  from  liability  where  the 
collecting  bank  sends  it  to  the  drawee,  which 
returns  its  draft  for  the  amount,  charges 
the  check  against  the  drawer's  account,  and 
cancels  and  surrenders  it,  by  reason  of 
which  the  drawer  is  prevented  from  drawing 
the  amount  of  such  check  when  drawing 
the  balance  of  his  account,  although  the 
draft  is  not  paid  for  lack  of  funds  and  fail- 
ure of  the  bank  drawing  it.  Winchester 
Milling  Co.  v.  Bank  of  Winchester,  18:  441, 
111  S.  W.  248,  120  Tenn.  225. 

173.  Ihe  owner  of  a  check  delivered  to  a 
bank  for  collection  ratifies  its  act  in  send- 
ing the  chetk  to  the  drawee  and  accepting 
its  draft  for  the  amount,  by  receiving  the 
draft  after  it  is  dishonored,  and  making  it 
the  basis  of  an  action  against  the  collecting 
bank  for  negligence  in  failing  to  collect  it. 
Winchester  Milling  Co.  v.  Bank  of  Winches- 
ter, 18:  441,  111  S.  W.  248,  120  Tenn.  225. 

174.  Where  a  collecting  bank  is  negligent 
in  transmitting  a  check  for  collection,  and 
in  torwarding  it  to  the  drawee  bank,  where- 
by such  drawee,  though  in  disregard  of  a 
special  agreement,  is  enabled  to  debit  the 
drawer  of  the  check  and  oredit  the  collect- 
ing bank,  and  control  of  the  check  is  lost 
by  the  collecting  bank  and  it  is  never  re- 
turned to  the  customer,  the  latter  may  in 
action  of  assumpsit,  upon  the  common 
counts  as  for  money  had  and  received,  re- 
cover the  full  amount  of  the  check.  Pink- 
ney v.  Kanawha  Valley  Bank,  32:  987,  69  S. 
E.  1012,  68  W.  Va.  254. 

Promptness  in  making  collection  or 
giving  notice   of   failure. 

Effect  of  delay  in  presentation  of  check  tak- 
en in  payment  of  other  check,  see 
Checks,  27,  28. 

See  also  Checks,  16. 

175.  A  collecting  bank,  knowing  of  the 
depressed  financial  condition  of  the  debtor, 
is  delinquent  in  its  duty  if  it  neglects 
to  inform  its  customer  of  such  vital  con- 
dition, and  fails  to  take  vigorous  measures 
under  the  circumstances  to  secure  payment, 
and  if  loss  occurs  by  its  negligence  to 
exercise  that  degree  of  skill,  care,  and 
diligence  which  the  nature  of  its  under- 
taking calls  for,  with  reference  to  the  time, 
place,  and  circumstances  surrounding  the 
undertaking,  it  will  incur  liability  to  its 
principal  for  the  loss  sustained.  Pinkney 
V.  Kanawha  Valley  Bank,  32:  987,  69  S. 
E.  1012,  68  W.  Va.  254. 

176.  Knowledge  by  one  who  deposits  a 
check  in  a  bank  for  collection,  of  a  custom 
of  the  bank  to  collect  through  a  clearing 
house,  does  not  make  a  rule  of  the  clearing 
house  as  to  the  time  settlements  are  made 
between  the  members  thereof,  binding  upon 
him  so  as  to  relieve  the  bank  from  liability 
for  the  loss  in  case  because  of  such  rule  the 
check  is  not  presented  to  the  drawee  until 


260 


BANKS,  IV.  b,  1. 


after  the  close  of  business  on  the  day  fol- 
lowing the  receipt  of  the  check  by  the  de- 
positor and  the  consequent  release  of  the 
surety's  liability,  and  prevent*  his  holdin<j 
the  collecting  bank  liable  for  loss  due  to 
the  failure  of  the  drawee  before  presenta- 
tion of  the  check,  which  would  have  been 
paid  if  presented  in  time.  Dorchester  v. 
Merchants'  Nat.  Bank,  50:  542,  163  S.  W. 
5,   —   Tex.   — .  (Annotated) 

177.  A  bank  to  which  a  check  indorsed 
to  its  order  is  forwarded  for  collection,  its 
amount  to  be  credited  to  the  account  of  the 
correspondent,  and  which  presents  it  for 
payment  on  the  day  of  its  receipt  to  the 
drawee,  who  then  has  funds  of  the  drawer 
on  deposit  to  meet  it  and  who  is  ready  to 
pay  it  in  money,  but  which,  instead  of  tak- 
ing cash,  surrenders  the  check  for  the 
drawee's  own  check  on  another  bank,  must 
use  the  utmost  diligence  to  collect  the  sec- 
ond check,  or  bear  any  loss  wWch  may  be 
occasioned  by  the  delay,  in  case  the  drawer 
should  become  insolvent.  Noble  v.  Dough- 
ten,  3:  1 167,  83  Pac.  1048,  72  Kan.  336. 

(Annotated) 

Payment;  accepting  check  in  pay- 
ment. 

Effect  of  delay  in  presentation  of  check  tak- 
en in  payment  of  other  check,  see 
Checks,  27,  28. 

Efifect  of  acceptance  by  collecting  bank  of 
check  in  payment  of  commercial  paper, 
as  between  the  owner  of  the  paper  and 
the  obligor  thereon,  see  Payment,  9, 
10. 

See  also  supra,  155,  177. 

178.  Where  the  vendor  in  a  land  contract 
sends  a  deed  for  the  land,  together  with  a 
sight  draft  for  the  balance  of  the  purchase 
price,  to  a  bank,  with  instructions  to  deliver 
the  deed  upon  the  payment  of  the  draft  and 
remit  the  proceeds,  and  a  person  who  has 
sufficient  funds  in  the  bank,  which  is  not 
shown  to  be  insolvent,  and  who  is  acting 
on  behalf  of  the  vendee,  gives  to  the  bank 
his  check  on  his  account  therein  in  payment 
of  the  draft,  and  the  same  is  accepted  by 
the  bank,  and  the  deed  delivered,  but  no 
remittance  made  of  the  proceeds  nor  charge 
made  to  the  depositor's  account,  at  the  time 
of  the  insolvency  of  the  bank,  eight  days 
thereafter,  the  giving  and  receiving  of  such 
check  constitutes  a  payment  of  the  draft. 
Schafer  v.  Olson,  43:  762,  139  N.  W.  983, 
24  N.  D.  542. 

179.  The  credit  by  the  drawee  of  a 
check,  to  which  it  is  forwarded  by  another 
bank  for  collection,  under  a  custom  au- 
thorizing it  to  credit  the  amount  and 
remit  or  settle  at  stated  periods,  amounts 
to  payment,  and  renders  the  forwarding 
bank  liable  to  its  psincipal,  although  the 
check  was  an  overdraft  and  the  drawee 
insolvent.  Pinkney  v.  Kanawha  Valley 
Bank,  32:  987,  69  S.  E.  1012,  68  W.  Va.  254. 

180.  A  bank  which  accepted  the  check  of 
an  indorser  in  paj'ment  of  a  note  sent  to  it 
for  collection,  relying  upon  a  telephone  mes- 
sage from  the  drawee  bank  that  the  check 
would  be  paid,  which  message  was  founded 
on  a  mistake  as  to  what  check  was  meant, 
Dieest  1-52  I..B.A.(N.S.) 


is  not  liable,  although  it  gave  the  owner 
of  the  note  credit  on  its  books  for  the 
amount  and  mailed  him  a  statement  to  that 
e/lect,  adding  that  the  credit  was  subject 
to  collection,  where  notice  of  the  nonpay- 
ment of  tlie  check  was  promptly  sent  the 
owner  by  telephone;  nor  is  the  bank  liable 
because,  having  on  deposit  tuiuls  of  the 
bank  on  which  the  check  was  drawn,  it 
charged  the  amount  of  the  ciieck  against 
such  deposit,  and  refused  to  pay  it  out  until 
indemnified  against  loss  in  so  doing.  Inter- 
state Nat.  Bank  v.  Ringo,  3:  1179,  83  Pac. 
119,  72  Kan.  116.  (Annotated)' 

181.  if  a  bank  to  which  a  check  indorsed 
to  its  order  has  been  forwarded  for  col- 
lection, its  amount  to  be  credited  to  the 
account  of  the  correspondent,  instead  of 
taking  cash  from  the  drawee  bank,  as  it 
might  have  done,  accepts  the  latter's  check 
on  another  bank,  such  transaction  fixes  the 
rights  of  the  parties;  and,  after  the  insolv- 
ency of  the  drawee  of  the  first  check  has  oc- 
curred, the  negligent  holder  cannot  charge 
the  drawer  and  indorsers  with  liability  by 
repossessing  itself  of  the  instrument,  pre- 
senting it  for  payment  a  second  time,  and 
protesting  it  for  nonpayment;  and  this  is 
true,  even  although  the  first  presentment 
might  have  been  rightfully  delayed  for  a 
longer  period  of  time  than  that  during 
which  the  drawee  remained  solvent.  Noble 
V.  Doughten,  3:  1167,  83  Pac.  1048,  72  Kan. 
336. 

Forgeries. 

Evidence  as  to  person  to  whom  maker  in- 
tended money  to  be  paid,  see  Evidence, 
1621. 

See   also   supra,   IV.   a,   3,   b. 

182.  A  fraudulent  county  warrant  re- 
ceived by  a  bank  for  collection  from  a  city 
treasurer,  and  credited  to  his  account,  and 
intended  by  him  to  cover  up  his  defalca- 
tions, is  not  a  liquidation  of  the  amount  of 
the  defalcation  so  as  to  prevent  the  bank, 
as  against  the  city  and  the  surety  on  the 
official  bond  of  the  treasurer,  from  charging 
off  the  credit  upon  discovery  of  the  fraudu- 
lent character  of  the  warrant.  Dickinson 
V.  White,  49:  362,  143  N.  W.  754,  25  N.  D. 
523. 

183.  A  bank  which  takes  a  forged  check 
from  a  stranger,  although  without  inquiry 
or  investigation,  and  indorses  thereon  "For 
collection,"  and,  "ogether  with  a  request  for 
telegraphic  advice  if  the  check  is  honored, 
forwards  it  to  the  drawee  bank,  is  a  bona 
fide  holder  so  as  to  prevent  recovery  there- 
from after  discovery  of  the  forgery  by  the 
drawee  bank,  which,  in  accordance  with  such 
request,  had  remitted  the  amount  to  the 
indorsee  bank,  which  had  in  turn  paid  it  to 
the  one  presenting  it  for  payment.  Pen- 
nington County  Bank  v.  First  State  Bank, 
26:  849,  125  N.  W.  119,  110  Minn.  263. 

184.  An  employee  who  forges  his  em- 
ployer's name  to  a  check  for  which  he  ob- 
tains from  a  bank  a  draft  in  favor  of  a 
stranger  acquires  no  rights  to  the  draft  as 
owner,  which  will  entitle  him  to  divert  it 
from  the  purposes  for  which  it  was  issued, 
so  as  to  justify  the  cashing  of  the  draft  up- 


BANKS,  IV.  b,  2,  c. 


261 


on  his  liiflorsement  of  the  pajee's  name 
thereon,  and  prevent  the  drawee  which  paj^s 
the  amount  to  the  cashing  bank  from  recov- 
ering the  fund  upon  discovering  the  facts. 
Seaboard  Xat.  Bank  v.  Bank  of  America, 
22:  499,  85  N.  E.  S29,  193  N.  Y.  26. 

185.  That  a  check  which  becomes  the  con- 
sideration for  a  bank  draft  was  forged,  and 
the  bank  was  negligent  in  honoring  it,  has 
no  bearing  in  determining  the  right  of  the 
drawee  of  the  draft,  after  cashing  it,  to 
recover  the  funds  from  the  collecting  bank, 
because  of  a  forged  or  fictitious  indorse- 
ment on  the  draft.  Seaboard  Nat.  Bank  v. 
Bank  of  America,  22:  499,  85  N.  E.  829, 
193  N.  Y.  20. 

186.  One  who  cashed  a  check  on  indorse- 
ment by  the  paj-ee  of  the  assumed  name  in 
which  he  had  fraudulently  obtained  it  from 
the  maker,  and  who  received  the  amount 
from  the  drawee,  cannot,  upon  discovery  of 
the  fraud  and  return  of  tlie  ainount  by  the 
drawee  to  the  drawer's  account,  be  com- 
pelled to  return  to  the  drawee  what  he  re- 
ceived from  it  on  the  ground  that  he  guar- 
anteed the  indorsement,  since  he  made  pay- 
ment as  intended  by  the  maker,  who  should 
bear  the  loss  caused  by  his  own  negligence. 
Central  Nat.  Bank  v.  National  Metropolitan 
Bank,  17:  520,  31  App.  D.  C.  391. 

2.   Insolvency. 

(See   also   same   heading   in  Digest   L.R.A. 
1-70.) 

Insolvency  generally,  see  infra,  V. 

Rights  as  against  trustee  in  bankruptcy,  see 

B.^NKEUFTCY,    61. 

See  also  supra,  163,  176,  178. 

187.  A  bank  which,  having  taken  collater- 
al for  a  note,  discounts  it  with  a  corre- 
spondent, does  not  hold  the  proceeds  of  the 
collateral  as  trustee  for  the  latter,  so  as  to 
enable  it  to  claim  a  preference  from  the 
general  funds  of  the  former  when  distrib- 
uted by  a  receiver;  at  least  where  it  does 
not  appear  that  cash  to  the  amount  collected 
on  the  collateral  passed  into  the  receiver's 
hands.  American  Nat.  Bank  v.  Pedley,  38: 
146,  142  S.  W.  239,  146  Ky.  194. 

(Annotated) 

188.  The  loss  caused  by  the  closing  of  the 
doors  of  an  insolvent  trust  company  after 
a  check  in  its  favor  to  transfer  to  it  a  de- 
posit in  another  bank  had  been  honored  by 
this  bank  by  a  draft  for  the  same  amount 
against  its  own  deposit  account,  somewhat 
smaller  in  amount,  with  the  trust  company, 
which  draft  was  received  but  not  carried 
through  its  books,  falls  upon  the  depositor, 
and  not  upon  the  bank,  where  the  trust 
company  placed  the  check  to  his  credit  and 
the  small  overdraft  on  the  account  of  the 
bank  was  subsequently  made  good  to  the 
receiver  of  the  trust  company,  although  a 
draft  on  a  third  bank,  to  make  good  such 
overdraft,  received  by  the  trust  company 
before  its  doors  were  closed,  was  returned 
by  one  of  its  agents  without  autliority. 
Plumas  County  Bank  v.  Bank  of  Rideout, 
Digest   1-52  I,.R.A.(N.S.) 


Smith  &  Co.  47:  552,  131  Pac.  360,  165  Cal. 
126. 

c.  Other  transactions;  discounts,  etc. 


(See   also   same 
1-70. J 


heading   in    Digest   L.R.A . 


Rights  and  liabilities  of  bank  paying  draft 
with  bill  of  lading  attached,  see  Bills 
OF  Lading. 

Notice  that  draft  discounted  for  acceptor 
was  drawn  for  accommodation,  see 
Bills  and  Notes,  186,  187. 

Indorsement  of  fictitious  payment  on  back 
of  note  discounted  by  bank,  see  Bills 
AND  Notes,  3,  179. 

Right  of  bank  purchasing  from  co'unty  offi- 
cer worthless  tax  refunding  warrants, 
see  Bonds,  47,  "48 ;  Subrogation,  33. 

Conducting  business  of  debtor  so  as  to  se- 
cure payment  of  debt,  see  Corpora- 
tions, 94;  Trusts,  40. 

Estoppel  to  set  up  ultra  vires,  see  Cobpoea- 
TioNS,  91-95. 

Evidence  to  show  that  note  discounted  was 
obligation  of  the  principal,  see  Evi- 
dence,   994. 

Imputing  to  bank  knowledge  of  member  of 
discount  committee,   see  Notice,   40. 

Accepting  stock  of  insane  person  as  col- 
lateral security  to  loan,  see  Pledge 
AND  Collateral  Security,  16. 

Release  of  collateral  security  by,  see  Pledge 
AND  Collateral  Security,  14, 

Rights  as  to  town  orders  pledged  by  town 
treasurer  as  security  for  money  ad- 
vanced ujjon  his  check,  see  Pledge  and 
Collateral  Security,  18,  19. 

Usury  in  transactions,  see  Usury,  I.  c. 

See  also  supra,  88.  '^ , 

189.  A  bank  and  its  officers  who,  knowing 
that  a  gang  of  men  are  engaged  in  fleecing 
persons  by  means  of  fictitious  races,  lend 
to  them  the  appearance  of  respectability  by 
the  backing  of  the  institution,  and  allow  the 
bank  to  be  used  to  eflfect  the  exchange  and 
transfer  of  money,  may  be  held  liable  for 
monev  lost  through  such  aid.  Hobbs  v. 
Boatright,  5:  906,  93  S.  W.  934,  195  Mo. 
693. 

190.  That  a  national  bank  has  no  author- 
ity to  deal  in  stocks  does  not  make  invalid 
a  transaction  by  which  it  secures  title  to 
stock  to  save  itself  from  loss  on  account  of  a 
loan.  Westminster  Nat.  Bank  v.  New  Eng- 
land Electrical  Works,  3:  551,  62  Atl.  971, 
73  N.  H.  465. 

Guaranty;  loan  of  credit. 

Right  to  set  up  ultra  vires  nature  of  guar- 
anty of  sale  of  securities,  see  Corpo- 
rations, 91,  92. 

Estoppel  to  set  up  invalidity  of  guaranty, 
see  Estoppel,   233. 

191.  A  national  bank  in  negotiating  its 
paper  can  bind  itself  for  the  payment  there- 
of by  its  indorsement  thereon;  but  it  can- 
not guarantee  the  payment  of  the  paper 
of  others,  or  become  surety  thereon,  solely 
for   the   benefit   of   the   latter.      First   Xat. 


262 


BANKS,    IV.   d,    V. 


Bank    v.    Monroe,    32:  550,    69    S.    E.    1123, 
135  Ga.  614. 

102.  An  attempt  by  a  trust  company 
organized  to  do  a  banking  business,  and  to 
perform  duties  which  are  largely  fiduciary 
in  their  nature,  to  guarantee  the  sale  of  se- 
curities of  a  stranger,  in  order  to  induce 
him  to  come  into  a  pooling  agreement  in 
which  the  company  is  not  interested,  is 
ultra  vires  and  void.  Gause  v.  Common- 
wealth Trust  Co.  24:  967,  89  N.  E.  476,  196 
N.  Y.  134. 

193.  A  bank  which  cashes  the  checks  of  a 
customer  of  a  national  bank  with  notice 
that  the  bank  has  loaned  its  credit  to  the 
customer  cannot  enforce  its  guaranty  to  pay 
the  checks.  Merchants*  Bank  v.  Baird,  17: 
526,  160  Fed.  642,  90  C.  C.  A.  338. 

194.  An  agreement  by  a  national  bank  to 
"protect"  the  checks  of  its  customer  and 
raise  the  limit  of  its  "guarantee"  so  that 
the  customer  may  draw  to  any  amount  is 
sufUcient  to  charge  the  other  party  with 
notice  that  the  bank  is  exceeding  its  powers. 
Merchants'  Bank  v.  Baird,  17:  526,  160  Fed. 
642,  90  C.  C.  A.  338.  (Annotated) 

195.  That  a  national  bank  which  guaran- 
teed payment  of  a  customer's  checks  prof- 
ited by  the  agreement  to  the  extent  of  ex- 
change in  the  payment  of  checks  and  kept 
the  profit  does  not  prevent  its  denying  lia- 
bility on  its  guaranty  where  the  profit  was 
all  swallowed  up  in  losses  growing  out  of 
the  transaction.  Merchants'  Bank  v.  Baird, 
17:  526,  160  Fed.  642,  90  C.  C.  A.  338. 
Pledge  of  assets. 

196.  A  bank  organized  under  a  statute 
permitting  it  to  do  business  upon  the 
terms  and  conditions  and  subject  to  the 
liabilities  prescribed  in  the  statute  has  no 
power  to  pledge  its  assets  to  secure  a  de- 
positor or  a  surety  for  a  depositor,  where 
such  power  is  not  expressly  mentioned  in 
the  statute.  Commercial  Bank  &  T.  Co. 
w.  Citizens'  Trust  &  Guaranty  Co.  45:  950, 
166  S.  W.  160,  153  Ky.  566. 

197.  Charter  authority  to  receive  de- 
posits and  pay  interest  thereon  does  not 
empower  a  bank  to  pledge  its  assets  to 
secure  a  depositor.  Commercial  Bank  & 
T.  Co.  V.  Citizens'  Trust  &  Guaranty  Co, 
45:  950,  156  S.  W.  160,  153  Ky.  566. 

198.  A  statute  requiring  banks  which  be- 
come state  depositories,  to  give  security  for 
the  public  fund,  does  not  authorize  them 
to  pledge  their  assets  as  security,  but  ap- 
plies to  personal  security  only.  Commer- 
cial Bank  &  T.  Co.  v.  Citizens'  Trust  & 
Guaranty  Co.  45:  950,  156  S.  W.  160,  153 
Ky.  566.*  (Annotated) 

d.  Clearing  house  Imsinesa. 

(See  also  same  heading  in  Digest  LJtJL. 
1-10.) 

See   supra,    89,    141,   176. 
Digest  1-52  i:..R.A.(ir.S.) 


F.  Insolvency. 

Action  by  stockholder  and  depositors  of 
bank  in  possession  of  receiver,  see 
supra,  16. 

In  case  of  collection,  see  supra,  187,  188. 

Action  by  receiver  of  bank  to  recover 
illegal  credit  allowed  by  bank,  see  Ac- 
tion* OR  Suit,  72;  Corporations,  84; 
Interest,  4. 

Appeal  by  state  superintendent  of  insolvent 
bank,   see  Appeal  and   Error,    81. 

Right  of  assignee  for  benefit  of  creditors 
to  avoid  invalid  pledge  of  securities  by 
bank,  see  Assignment  fob  Creditobs, 
5. 

As  to  bankruptcy  matters,  see  Bankruptcy. 

Action  by  receiver  on  note  executed  to  en- 
able bank  to  deceive  bank  examiner,  see 
Bills  and  Notes,  205. 

Liability  of  officer  for  loss  of  public  funds 
through  bank  failure,  see  Constitu- 
tional Law,  770;  Officers,  111-114; 
Taxes,   14. 

Liability  of  administrator  for  loss  of  funds 
through  bank  failure,  see  Executors 
AND  Administrators,  69-71. 

Liability  of  guardian  for  loss  of  funds  by 
bank  failure,  see  Guardian  and  Ward, 
18-20. 

Imputed  notice  of  insolvency,  see  Nones, 
42. 

Right  as  between  individual  and  firm  cred- 
itors of  insolvent  banking  partnership, 
see  Partnership,  42. 

Pleading  in  intervention  in  proceedings  for 
appointment  of  receivers  for  corpora- 
tions, see  Pleading,  409,  410. 

Validity  of  pledge  as  against  assignee  for 
creditors,  see  Pledge  and  Collateral 
Security,  9. 

Set-off  in  case  of,  see  Set-Off  and  Countem- 

CLAIM,    37. 

Effect  of  repeal  of  statute  authorizing 
liquidation  of  insolvent  bank,  see  Stat- 
utes, 360,  361. 

Right  of  depositor  to  subrogation,  see 
Subrogation,  4,  5. 

199.  A  bank  which,  after  receiving  money 
under  a  contract  to  receive  milk,  convert  it 
into  butter,  deduct  a  portion  of  the  proceeds 
for  services,  and  pay  the  remainder  to  pa- 
trons, and  issuing  checks  to  them  for  their 
shares,  diverts  the  money  to  other  uses,  and 
passes  into  the  hands  of  a  receiver,  leaving 
the  checks  unpaid,  is,  at  least,  a  general 
debtor  of  the  patrons,  and  they  have  a  right 
to  stand  as  general  creditors,  and  share  in 
the  dividends  declared  out  of  the  bank's 
assets.  Emigh  v.  Earling,  27:  243,  115  N. 
W.  128,  134  Wis.  565. 

Rights  in  deposit  after  insolvency 
generally. 

200.  Where  a  bank  fails  and  passes  into 
the  hands  of  a  receiver  after  it  has  issued 
a  draft  upon  a  correspondent  bank  in  which 
it  has  funds  on  deposit,  and  the  drawee 
has  notice  of  the  receivership  before  the 
draft  is  presented  for  payment,  the  title 
to  such  deposit  passes  to  the  receiver,  and 
the  holder  of  the  draft,  in  the  absence  of 


BANKS,  V. 


263 


any  special  circumstances,  is  entitled  to 
no  priority  over  other  creditors  of  the 
failed  bank.  Clark  v.  Toronto  Bank,  2: 
83,  82  Pac.  582,  72  Kan.  1. 
Taking  deposits  ixrhile  insolvent. 
Criminality  of  taking  deposit  while  insol- 
vent, see  infra,  247-254. 

201.  One  who  deposits  money  in  a  bank 
which  is  in  a  failing  condition  is  not  en- 
titled to  priority  of  payment  over  other 
creditors  out  of  cash  remaining  on  hand  at 
the  time  the  bank  closes  its  doors,  where 
Buch  sum  on  hand  is  less  than  the  amount 
of  the  deposits  subsequently  made  by  other 
creditors.  Cherry  v.  Territory,  8:  1254,  89 
Pac.  192,  17  Okla.  221. 

202.  The  mere  silence  of  the  officers  of  an 
insolvent  bank  as  to  its  condition  at  the 
time  a  general  deposit  is  made  therein  is 
not  sufficient  either  to  authorize  the  depos- 
itor to  reclaim  his  money  on  the  ground  of 
a  fraud,  or  to  give  him  any  superior  lien 
over  otlier  creditors  in  the  distribution  of 
the  assets  of  the  bank.  McGregor  v.  Bat- 
tle, 13:  185,  58  S.  E.  28,  128  Ga.  577. 

203.  One  who  deals  with  a  bank  upon 
the  assumption  that  it  is  solvent,  and  in- 
trusts his  money  to  it  as  a  general  depos- 
itor, has  no  superior  claim  over  other  cred- 
itors, growing  out  of  the  fact  that  he  is 
ignorant  of  the  insolvency  at  the  time  of 
the  deposit,  in  the  absence  of  any  induce- 
ment to  make  it,  other  than  the  bank  hold- 
ing itself  out  to  the  world  as  a  bank  of  de- 
posit. McGregor  v.  Battle,  13:  185,  58  S. 
E.  28,  128  Ga.  577. 

204.  Money  known  to  have  been  deposit- 
ed by  other  parties  on  the  day  of  the  fail  "re 
of  the  bank  cannot  be  appropriated  in  re- 
payment of  a  special  fund  which  had  been 
deposited  by  a  customer  to  indemnify  the 
bank  for  its  guaranty  of  the  performance 
of  a  contract  by  the  one  making  the  de- 
posit. Italian  Fruit  &  Importing  Co.  v. 
Penniman,  i:  252,  61  Atl.  694,  100  Md.  698. 

(Annotated) 
Taking  money  for  draft. 

205.  Money  received  by  an  insolvent 
banker  for  the  purchase  of  a  draft  which  he 
knows  to  be  worthless  will  be  held  by  liim 
in  trust  for  its  owner,  who  is  entitled  to 
priority  over  general  creditors.  Whitcomb 
V.  Carpenter,  lo:  928,  111  N,  W.  825,  134 
227. 

206.  A  bank  which,  while  hopelessly  in- 
solvent, sells  a  draft  when  the  statute  pro- 
hibits it  from  receiving  money,  takes  the 
money  so  paid  if  the  draft  is  dishonored  as 
a  trustee  ex  maleficio.  Widman  v.  Kellogo', 
39:  563,   133  N.   W.   1020,  22  N.   D.   396. 

(Annotated) 

207.  Where  an  agent  each  day  secures  a 
bank  draft  to  forward  the  receipts  of  the 
business,  a  finding  that  he  deposited  the  re- 
ceipts and  secured  drafts  therefor  means 
that  he  purchased  drafts  with  the  receipts. 
Widman  v.  Kellogg,  39:  563,  133  N,  W,  1020, 
22  N.  D.  396. 

208.  A  receiver  appointed  for  an  insol- 
vent bank  which  has  sold  a  worthless  draft 
takes  the  funds  paid  for  it  as  a  trustee. 
Oigest  1-52  Ii.R.A.(N.S.) 


Widman  v.  Kellogg,  39:  563,  133  N.  W.  1020, 

22  N.  D.  396. 

Trust  fund  generally. 

As  to  trust  in  public  funds,  see  infra,  222- 

227. 
Termination  of  trust  as  against  trustee  in 

bankruptcy,  see  Bankruptcy,  61. 
Following      trust      funds,      generally,      see 

Trusts,  V. 
See  also  supra,  65-68,  77-79,  201-208. 

209.  The  trust-fund  theory  does  not  re- 
quire a  return  of  money  paid  out  by  an 
insolvent  bank  in  due  course  of  business  on 
its  customer's  checks.  Wilson  v.  Baker 
Clothing  Co.  50:  239,  137  Pac.  896,  25  Idaho, 
378. 

210.  Money  received  by  an  insolvent 
banker  as  payment  upon  a  note  payable  to 
the  banker,  but  which  he  had  used  as  col- 
lateral security  for  his  own  debt,  is,  in  case 
the  application  is  not  made,  held  in  trust 
so  as  to  entitle  the  purchaser  to  priority 
over  general  creditors.  Whitcomb  v.  Car- 
penter, 10:  928,  111  N.  W.  825,  134  Iowa, 
Iowa,  227.  (Annotated) 

211.  A  bank  which  takes  over  the  assets 
of  a  liquidating  bank  upon  an  agreement 
that  it  will  pay  its  debts  and  a  certain 
sum  to  each  shareholder  assumes  towards 
creditors  the  trust  relation  held  by  the 
transferrer,  and  the  creditors  of  the  latter 
have  a  prior  lien  on  the  assets  so  trans- 
ferred in  case  the  transferee  becomes  in- 
solvent before  completing  its  undertaking. 
Ex  parte  Savings  Bank  of  Rock  Hill,  5:  520, 
53  S.  E.  614,  73  S.  C.  393.  (Annotated) 

212.  That  the  funds  of  an  insolvent  bank 
decrease  between  the  time  a  trust  fund  is 
received  and  the  making  of  an  assignment 
for  creditors  does  not  defeat  the  right  of 
preference  of  the  trust  fund  over  general 
creditors,  on  the  theory  that  the  assets  in 
the  receiver's  hands  were  not  increased  by 
the  receipt  of  such  fund,  so  long  as  the 
money  on  hand  equals  or  exceeds  such 
fund.  Whitcomb  v.  Carpenter,  10:  928,  111 
N.  W.  825,  134  Iowa,  227. 

213.  The  extent  to  which  trust  funds 
blended  with  general  moneys  of  a  bank  have 
been  dissipated,  or  can  be  identified,  when 
the  cash  in  the  bank  has  sunk  below  the 
amount  of  the  trust  fund,  is  to  be  deter- 
mined, not  by  the  cash  balance  when  the 
bank  closes  its  doors  in  insolvency,  but  by 
the  lowest  cash  balance  after  the  trust-fund 
deposits  are  made,  to  which  are  to  be  added 
the  subsequent  trust-fund  deposits.  Craw- 
ford County  V.  Strawn,  15:  iioo,  157  Fed. 
49,  84  C.  C.  A.  553. 

214.  Trust  funds  blended  with  general 
moneys  of  an  insolvent  bank  cannot  be 
identified  in  the  shifting  balances  carried  in 
reserve  or  in  correspondent  banks,  made  up 
of  collections  and  proceeds  of  rediscounts, 
and  sometimes  of  funds  remitted  by  the  in- 
solvent bank,  where  the  trust  fund  is  not 
traced  to  any  of  the  rediscounts  or  collec- 
tions; the  presumption  as  to  the  funds  re- 
mitted being  that  they  were  not  trust  mon- 
eys, Crawford  County  v.  Strawn,  15:  hoc, 
157   Fed.  49,  84   C.   C.   A.   553. 

215.  The  fact  that  some  of  an   insolvent 


2H 


BANKS,  V. 


bank's  commercial  paper,  consisting  of  many 
separate  instruments  acquired  at  difl'erent 
times,  may  liave  been  purchased  with  the 
general  funds  of  the  bank  with  which  trust 
moneys  have  been  mingled,  is  insufficient  to 
fasten  a  trust  upon  it,  or  upon  the  pro- 
ceeds of  a  part  of  it.  Crawford  Countv 
V.  Strawn,  15:  iioo,  157  Fed.  49,  84  C.  C.  A. 
553. 

216.  A  bank  which  passes  into  the  hands 
of  a  receiver  after  it  has  received  drafts 
for  property  belonging  to  patrons,  which  it 
has  mingled  with  its  own  funds,  without  at 
any  time  drawing  its  funds  below  the 
amount  so  received,  holds  the  fund  for  the 
benefit  of  the  patrons,  and  they  may  re- 
cover it  from  the  receiver.  Emigh  v.  Earl- 
ing,  27:  243,  115  K  W.  128,  134  Wis.  565. 

217.  When  funds  received  by  an  insolvent 
bank  which  goes  into  the  hand  of  a  re- 
ceiver as  a  trust  are  not  commingled  with 
any  of  the  assets  of  the  banl.  except  cash 
assets,  the  preference  of  the  beneficiary  is 
limited  to  the  cash  funds  of  which  the  re- 
ceiver took  possession,  when  distinguishable 
from  the  other  assets  of  the  estate  going 
into  his  hands.  Widman  v.  Kellogg,  39: 
563,   133  N.  W.   1020,  22   N.   D.  396. 

218.  Money  delivered  to  a  bank  by  an 
administrator  and  attorney  in  fact  for 
heirs,  to  be  held  until  receipts  can  be  se- 
cured from  them,  when  it  is  to  be  forward- 
ed to  them  by  bank  draft,  is  a  special  de- 
posit, entitled  to  preference  when  the  bank 
goes  into  the  hands  of  a  receiver,  although 
the  bank  commingles  the  money  with  its 
general  funds,  if  cash  in  excess  of  the  de- 
posit remains  in  the  possession  of  the  bank 
at  all  times  subsequent  to  the  deposit,  and 
passes  into  tiie  hands  of  the  receiver. 
Carlson  v.  Kies,  47:317,  134  Pac.  808,  75 
Wash.  171. 

219.  A  receiver  of  a  bank  in  which  funds 
of  one  person  have  been  deposited  by  an- 
other without  authority,  so  that  the  bank 
gained  no  title  to  them,  must,  in  case  the 
bank  had  on  hand  a  sum  in  excess  of  such 
deposit  at  all  times  after  it  was  made,  re- 
turn the  amount  to  the  true  owner  as  a 
trust  fund,  in  preference  to  claims  of  gen- 
eral creditors  of  the  bank.  Patek  v.  Patek, 
35:  461,  131  N.  W.  1101,  166  Mich.  446. 

220.  A  package  of  bills  marked  with  the 
owner's  initials,  and  delivered  to  a  bank 
for  safe-keeping,  and  for  whifch  a  receipt 
stating  that  fact  is  executed  by  the  cash- 
ier, is  a  special  deposit,  which  the  owner  is 
entitled  to  have  returned  to  him  in  case 
the  assets  of  the  bank  pass  mto  the  hands 
of  a  receiver.  Fogg  v.  Tyler,  39:  847,  82 
Atl.  1008,  109  Me.  109.  (Annotated) 

221.  That  a  package  of  bills  delivered  to  a 
bank  for  safe-keeping  as  a  special  deposit 
cannot  be  identified  when  th-;  assets  pass 
into  the  bands  of  a  receiver  does  not  de- 
stroy the  prior  right  of  the  owner  to  pay- 
ment out  of  such  assets,  if  the  cash  on  hand 
never  fell  below  the  amount  of  the  deposit 
after  it  was  made.  Fogg  v.  Tyler,  39  •847. 
82  Atl.  1008,  109  Me.  109. 

Digest   1-52  I^.R.A.CN.S.) 


Trust  in  public  funds. 

Who  may  appeal  from  order  giving  state 
priority  in  assets  of  insolvent  bank,  see 
Appeal   and    Ebror,    81. 

Estoppel  of  county  to  pursue  trust  funds, 
see  EsTOPPBX,  250. 

222.  Tlie  claims  of  a  state  for  money  de- 
posited in  banks  have,  under  a  ronstitu- 
tional  provision  abrogating  only  such  parts 
of  the  common  law  as  are  repugnant  to  the 
Constitution,  priority  in  case  of  the  bank's 
insolvency,  over  those  of  private  depositors 
having  no  specific  lien,  even  though  the 
money  belongs  to  special  funds,  if  it  is  the 
property  of  the  people.  Re  Carnegie  Trust 
Co.  46:  260,  99  N.  E.  1096,  206  N.  Y.  390. 

( Annotated ) 

223.  Upon  the  insolvency  of  a  bank  which 
has  been  receivinsj  taxes  and  delivering 
tieasury  receipts  therefor,  the  county  is  en- 
titled to  a  preference  out  of  its  assets  for 
the  amount  collected  and  not  turned  over, 
on  the  theory  that  the  bank  is  a  trustee, 
where  there  is  no  authority  of  law  to  deposit 
the  funds  with  the  bank,  and  the  taxpayers 
from  whom  the  funds  have  been  received 
cannot  be  ascertained.  Page  County  v.  Rose. 
5:  886,  106  N.  W.  744,  130  Iowa,  296. 

(Annotated) 

224.  No  title  is  acquired  by  a  bank  to 
county  tax  funds  illegally  deposited  by  its 
cashier,  who  was  a  deputy  tax  collector, 
which  it  mingles  with  its  other  moneys; 
and  the  county  may  recover  the  same  so 
far  as  they  can  be  traced  into  the  property 
which  comes  into  the  possession  of  a  receiv- 
er of  the  bank.  Crawford  County  v.  Strawn, 
15:  HOC,  157  Fed.  49,  84  ,C.  C.  A.  553. 

(Annotated) 

225.  A  territory  is  not  entitled  to  claim 
priority  of  payment  over  other  creditors 
of  an  insolvent  bank  in  which  a  public  of- 
ficer, without  any  authority,  had  deposited 
money,  checks,  and  drafts  derived  from  the 
leasing  of  the  school  lands  of  the  territory, 
where  it  does  not  affirmatively  appear  by 
a  preponderance  of  the  evidence  that  the 
particular  money,  checks,  and  drafts  so  de- 
posited, or  their  proceeds,  were  turned  over 
to  the  receiver  of  the  bank.  Cherry  v. 
Territory,  8:  1254,  89  Pac.  192,  17  Okla.  221. 

226.  The  identity  of  trust  funds  belong- 
ing to  a  county,  and  deposited  by  its  treas- 
urer in  a  bank  which  thereafter  became  in- 
solvent, is  sufficiently  shown  to  enable  the 
county  to  reclaim  the  amount  of  the  de- 
posit, where  the  money  can  be  traced  into 
the  general  mass  turned  over  to  the  re- 
ceiver. Watts  v.  Cleveland  County,  16: 
918,  95  Pac.  771,  21  Okla.  231. 

227.  The  title  to  county  funds  deposited 
by  the  county  treasurer  in  a  bank  in  his 
own  name  as  treasurer,  prior  to  the  passage 
of  the  Oklahoma  statute  providing  for  the 
designation  of  county  depositories,  did  not 
pass  to  the  bank,  although  there  was  no 
agreement  that  the  identical  money  should 
be  returned;  and,  upon  the  insolvency  of 
the  bank,  the  county  is  entitled  to  recover 
the  amount  of  the  deposit  from  the  receiver 
of  the  bank,  prior  to  the  payment  of  gen- 


BANKS,  VI. 


t66 


eral  depositors.    Watts  v.  Cleveland  County, 
i6:  918,  95  Pac.  771,  21  Okla.  231. 
Unlai)irful  preferences. 

Sufficiency  of  proof  of  collusion  in  pay- 
ment of  check  on  insolvent  bank,  see 
Evidence,  2091. 

Set-off  as  preference,  see  Set-Off  and 
Counterclaim,  37. 

See  also  supra,  209. 

228.  The  mere  fact  that  a  bank  depositor 
knows  that  the  bank  is  insolvent  at  the 
time  he  withdraws  his  deposit  does  not 
render  him  liable  to  return  the  amount  to 
the  bank's  receiver.  Wilson  v.  Baker  Cloth- 
ing Co.  50:  239,  137  Pac.  896,  25  Idaho,  378. 

(Annotated) 

229.  If  a  bank,  though  insolvent,  is  still 
conducting  its  business,  and  pays  a  check 
of  a  depositor  in  the  usual  course  of  busi- 
ness, and  the  depositor  has  no  notice  of  the 
insolvency  of  the  bank,  the  payment  is  good 
and  the  depositor  will  be  protected.  Me 
Gregor  v.  Battle,  13:  185,  58  S.  E.  28,  128 
Ga.  577.  (Annotated) 

230.  A  depositor  not  paid  in  the  usual 
course  of  business,  but  at  a  time  when  he 
has  notice  or  knowledge  that  the  bank  is 
insolvent,  and  that  the  intent  of  the  bank 
is  to  create  a  preference  in  his  favor  over 
other  creditors,  is  liable  to  repay  to  the 
bank  or  its  representative  the  difference  be- 
tween the  amount  received  by  him  and  his 
pro  rata  share  of  the  assets  of  the  bank 
upon  a  final  winding  up  of  its  affairs.  Mc- 
Gregor V.  Battle,  13:  185,  58  S.  E.  28,  128 
Ga.  577.  (Annotated) 

231.  Money  paid  to  a  depositor  by  a  bank 
which  is  actually  insolvent,  in  due  course  of 
business,  at  a  time  when  it  was  paying  all 
checks  in  order  and  when  it  claims  to  be  in- 
solvent, is  not  impressed  with  a  trust,  al- 
though the  deposit  is  withdrawn  because 
the  depositor  suspects  the  bank's  insolvency. 
Livingstain  v.  Columbian  Banking  &  Trust 
Co.  22:  445,  62  S.  E.  249,  81  S.  C.  244. 

VI.  Savings  batilcs. 

Constitutionality  of  statute  as  to  unclaimed 
deposits,  see  Action  ob  Suit,  61;  Con- 
stitutional Law,  283,  436,  777. 

Pleading  in  action  to  recover  savings  bank 
deposit,  see  Pleading,  416. 

Succession  tax  on  "deposits  in  foreign  sav- 
ings bank,  see  Taxes,  339. 

Trover  for  deposit  in,  see  TROVEn,  7. 

232.  A  savings  bank  which  has  issued 
a  check  in  payment  of  a  deposit  account  is 
under  no  obligation  to  defend  a  suit  by 
the  drawee  against  one  who  cashed  it  and 
collected  its  amount  from  the  drawee,  for 
a  return  of  the  money  on  the  theory  that 
the  indorsement  was  forged.  Gallo  v. 
Brooklyn  Sav.  Bank,  32:  66,  92  N.  E.  633, 
199  N.  Y.  222. 

By-laxrs. 

See  also  infra,  237. 

233.  By-laws  of  a  savings  bank  which  re- 
quire the  presentation  of  the  deposit  book, 
or  due  notice  to  the  bank  in  case  of  the  loss 
of  the  book,  as  conditions  precedent  to  pay- 
Digest  1-52  I..R.A,(N.S.) 


ment  to  the  depositor  or  upon  his  written 
order,  are  reasonable  conditions,  and  become 
a  part  of  the  contract  between  the  bank  and 
the  depositor,  when  brought  to  the  notice  of 
the  latter.  Hough  Avenue  Savings  &  Bkg. 
Co.  V.  Anderson,  18:  431,  85  N.  E.  498,  78 
Ohio  St.  341. 

234.  A  savings  bank  cannot  require  a 
bond  of  the  administrator  of  a  depositor  as 
a  condition  to  paying  the  deposit  to  him,  in 
the  absence  of  any  by-law  requiring  it,  al- 
though the  pass  book  is  lost,  and  both  the 
statute  and  by-laws  require  presentation  of 
such  book  as  a  condition  to  the  withdrawal 
of  deposit.  Mierke  v.  Jefferson  County  Sav. 
Bank,  46:  194,  101  N.  E.  889,  208  N.  Y.  347. 

( Annotated ) 
Assignment  of  deposit. 
Gift  of  deposit,  see  Gifts,  12-15,  26. 

235.  The  personal  representative  of  a  de- 
positor in  a  savings  bank  cannot  question 
the  validity  of  a  transfer  of  the  deposit 
which  the  bank  recognized  without  requir- 
ing compliance  with  its  by-law  as  to  pro- 
duction of  the  pass  book.  Candee  v.  Con- 
necticut Sav.  Bank,  22:  568,  71  Atl.  551, 
81  Conn.  372. 

236.  A  savings  bank  may  waive  a  require- 
ment of  its  rules  that  orders  for  the  trans- 
fer of  money  by  depositors  must  be  wit- 
nessed, and,  if  it  does  so,  the  absence  of  a 
witness  cannot  be  taken  advantage  of  by 
the  personal  representatives  of  the  trans- 
ferrer. Candee  v.  Connecticut  Sav.  Bank, 
22:  568,  71  Atl.  551,  81  Conn.  372. 
Payment  to  wrong  person. 

237.  By-laws  of  a  savings  bank  which  re- 
quire presentation  of  the  deposit  book,  or 
due  notice  to  the  bank  in  case  of  the  loss  of 
the  book,  as  conditions  precedent  to  pay- 
ment to  the  depositor  or  upon  his  written 
order,  do  not  relieve  the  bank  from  liability 
to  him  where  it  does  not  act  in  good  faith 
and  exercise  reasonable  care  in  making  pay- 
ment on  presentation  of  the  deposit  book  by 
a  third  person  iipon  what  purports  to  be  a 
written  order  of  the  depositor,  but  which  is 
in  fact  a  forgery.  Hough  Avenue  Savings 
&  Bkg.  Co.  V.  Anderson,  18:  431,  85  N.  E. 
498,  78  Ohio  St.  341,  (Annotated) 

238.  A  savings  bank  which,  upon  not 
being  satisfied  of  the  identity  of  one  pre- 
senting a  pass  book  and  demanding  money 
from  the  account,  gives  him  a  check  for 
the  amount,  payable  to  the  order  of  the 
depositor,  is  not  guilty  of  such  negligence 
or  fraud  as  to  be  liable  in  tort  to  one  who 
cashes  the  check  for  the  one  to  whom  it  was 
delivered.  Gallo  v.  Brooklyn  Sav.  Bank, 
32:  66,  92  N.  E.  633,  199  N'  Y.  222. 

239.  The  liability,  as  drawer  of  a  savings 
bank  which,  upon  not  being  satisfied  of  the 
identity  of  one  presenting  a  pass  book  and 
demanding  money  from  an  account,  gives 
liim  a  check  payable  to  the  order  of  the 
depositor,  is  terminated  by  the  payment  of 
the  check  by  the  drawee,  so  that  it  cannot 
be  held  liable  as  such  to  one  who  cashed 
the  check  and  is  compelled  to  return  the 
amount  which  he  collects  from  the  drawee, 
because  the  instrument  was  forged,  on  the 
theory  that  the  one  to  whom  the  check  was 


m 


BANKS,  VII. 


delivered    must    be    regarded    as    the    true 

payee.     Gallo  v.   Brooklyn   Sav.   Bank,  32: 

66,  92  N.  E.  633,  199  N.  Y.  222. 

Liability  of  officers. 

When  limitations  begin  to  run  against  lia- 
bility, see  Limitation  of  Actions, 
159. 

Pleading  in  action  to  hold  trustees  personal- 
ly liable,  see  Pleading,  184. 

240.  Trustees  of  a  savings  bank  are  per- 
sonally liable  for  money  lost  through  loans 
made  without  observing  the  limitations  im- 
posed by  the  rules  and  by-laws  of  the  in- 
stitution. Greenfield  Sav.  Banl:  v.  Aber- 
crorabie,  39:  173,  97  N.  E.  897,  211  Mass. 
252.  (Annotated) 

241.  Salaried  trustees  of  a  savings  bank 
are  personally  liable  for  loss  of  its  funds 
which  they  lend  in  excess  of  the  statutory 
limit  for  the  security  furnished  if,  by  the 
exercise  of  reasonable  care  and  prudence, 
they  ought  to  have  known  that  they  were 
exceeding  the  limit.  Greenfield  Sav.  Bank 
V.  Abercrombie,  39:  173,  97  N,  E.  897,  211* 
Mass.  252. 

242.  Statutory  requirements  that,  in 
lending  money  by  a  savings  bank,  only  first 
mortgages  shall  be  taken,  after  report  on 
the  value  of  the  property,  and  that  all  ap- 
plications for  loans  shaK  be  in  writing,  are 
mandatory,  and  trustees  will  be  personally 
responsible  for  money  lost  through  loans 
made  without  observing  these  requirements. 
Greenfield  Sav.  Bank  v.  Abercrombie,  39: 
173,  97  N.  E.  897,  211  Mass.  252. 

VII.  Crimes, 

Criminal  contempt  of  officers  in  refusing  to 
produce  books,  see  Appeal  and  Erkor, 
70;  Contempt,  14,  37. 

Production  of  books  as  infringing  privilege 
of  bank  officers  against  self-crimina- 
tion, see  Criminal  Law,  110. 

Liability  of  cashier  for  embezzlement,  see 
Embezzlement,   5. 

Evidence  in  prosecution  of  oflScers  for  con- 
version of  state  moneys,  see  Evidence, 
1969. 

Liability  of  cashier  for  false  pretenses,  see 
False  Pretenses,  20. 

Indictment  of  officer  for  converting  public 
funds,  see  Indictment,  etc.,  90,  130. 

Criminal  liability  of  bank  collecting  draft 
attached  to  bill  of  lading  for  liquor,  see 
Intoxicating  Liquors,  97. 

243.  The  officers  of  a  trust  company  whoso 
acts  result  in  the  conversion  of  state  funds 
on  deposit  with  it  are,  where  accessor- 
ies are  punishable  as  principals,  indictable 
therefor,  under  a  statute  declaring  one 
who,  having  state  funds  in  his  possession, 
shall  convert  them  to  his  own  use,  to  be 
guilty  of  larceny;  and  it  is  immaterial 
that  under  the  statute  the  money  could  not 
have  been  deposited  with  them  individually, 
since  the  funds  were  in  their  hands  as  of- 
ficers of  the  bank.  State  v.  Ross,  42:601,  104 
Pac.  696,  106  Pac.  1022,  55  Or.  450. 

(Annotated) 
Oieest  1-52  L.R.A.(N.S.) 


244.  Officers  and  director  of  a  trust  com- 
pany who  permit  a  special  deposit  of  state 
funds  to  become  part  of  its  general  deposit, 
and  to  be  paid  out  in  the  usual  course  of 
its  business,  are  personally  liable  under  a 
statute  providing  that  one  who,  liaving  pos- 
session of  state  funds,  converts  them  to  his 
own  use,  shall  be  guilty  of  larceny.  State  v. 
Ross,  42:  601,  104  Pac.  596,  106  Pac.  1022,  55 
Or.  450. 

245.  That  officers  of  a  trust  company 
wrongfully  lending  state  funds  to  strangers 
act  for  the  benefit  of  the  company,  and  not 
for  themselves,  does  not  prevent  their 
punishment,  under  a  statute  providing  that 
anyone  having  possession  of  state  funds  who 
shall  convert  them  to  his  own  use  sliall  be 
i  ilty  of  larceny.  State  v.  Ross,  42:601,  104 
Pac.  596,  106  Pac.  1022,  55  Or.  450. 

246.  That  state  funds  held  by  a  trust  com- 
pany as  a  special  deposit  were  lost  through 
the  failure  of  another  corporation  to  which 
they  were  lent  is  no  defense  to  a  prosecu- 
tion against  the  officers  of  the  trust  com- 
pany for  conversion  of  the  funds.  State  v. 
Ross,  42:  601,  104  Pac.  596,  106  Pac.  1022, 
55  Or.  450. 

Taking  deposit  trhen  insoWent. 
Sufficiency    of    indictment    for,    see   Inbict- 

ment,  etc.,  100. 
Class  legislation  as  to,  see  Statutes,  155. 

247.  A  bank  is  "unsafe  or  insolvent" 
within  the  meaning  of  a  statute  making  it 
an  offense  punishable  by  imprisonment  to 
receive  money  on  deposit  in  a  bank,  whero 
the  one  receiving  it  knows,  or  has  good 
cause  to  know,  tliat  the  bank  is  unsafe  or 
insolvent,  when  the  cash  value  of  its  as- 
sets, realizable  in  a  reasonable  time,  in 
case  of  liquidation  by  its  proprietors  as 
ordinarily  prudent  persons  would  ordi- 
narily close  up  their  business,  is  not  equal 
to  its  liabilities,  exclusive  of  stock  lia- 
bilities; and  such  term  does  not  mean  in- 
solvent in  the  limited  sense  of  inability  to 
pay  indebtedness  in  the  ordinary  course  of 
business.  Ellis  v.  State,  20:  444,  119  N. 
W.  1110,  138  Wis.  513.  (Annotated) 

248.  Where  bank  officers  are  largely  in- 
debted thereto  and  possess  property  to  a 
very  consderable  amount  as  compand  to 
such  indebtedness,  the  fact  that  some  of 
the  officers,  equally  interested  in  the  bank 
and  such  property,  are.  not  debtors  of  th« 
bank,  but,  nevertheless,  agreed  to  join  in 
conveying  the  property  to  strengthen  the 
bank  as  to  paper  on  which  they  were  not  lia- 
ble, thereby  creating  a  moral  obligation  only 
so  to  join,  which  obligation  the  other  of- 
ficers believed  would  be,  and  in  fact  was, 
redeemed,  does  not  militate  against  the 
outside  interests  of  such  nondebtor  officers 
being  considered  by  the  others  before  the 
transfer,  on  the  question  of  whether  the 
bank  is  insolvent  within  the  meaning  of  a 
statute  prohibiting  the  receipt  of  deposits 
after  the  one  receiving  them  knows,  or  has 
good  cause  to  know,  that  the  bank  is  unsafe 
or  insolvent.  Ellis  v.  State,  20:  444,  119 
N.  W.  1110,  138  Wis.  613. 

249.  In  case  officers  of  a  bank  are  largely 
indebted  thereto,  and  possess   property  in- 


BAR— BARBER   SHOP. 


287 


terests  in  a  corporation  to  a  very  signifi- 
cant amount,  as  compared  to  such  indebted- 
ness, and  they  convey  such  property  to  t!io 
bank  on  account  of  such  indebtedness, 
pursuant  to  an  understanding  of  long 
standing,  the  situation  before  the  convey- 
ance should  be  regarded  substantially  the 
same  as  that  thereafter,  as  regards  the 
mental  state  of  the  officers  respecting  the 
condition  of  the  bank  as  to  solvency,  in  a 
prosecution  against  them  for  accepting  de- 
posits while  insolvent.  Ellis  v.  State,  20: 
444,  119  N.  W.  1110,  138  Wis.  513. 

250.  Tlie  status  of  an  officer  of  a  bank 
who  receives  money  on  deposit  for  the  cred- 
it of  the  depositor,  and  which  is  subject  to 
withdrawal  by  him  at  his  pleasure,  as  re- 
gards a  statute  making  it  an  offense  pun- 
ishable by  imprisonment  to  receive  money 
on  deposit  in  a  bank,  where  the  one  re- 
ceiving it  knows,  or  has  good  cause  to 
know,  that  the  bank  is  unsafe  or  insolvent, 
is  lixed,  as  regards  guilt  under  such  stat- 
ute, as  of  the  time  of  the  deposit;  and 
is  n-t  affected  by  the  fact  that  the  de- 
positor is  indebted  to  the  bank  on  an  in- 
debtedness not  then  due,  but  which,  in 
fact,  does  mature  shortly,  so  as  to  absorb 
the  deposit,  in  part,  before  the  bank  is 
forced  to  suspend,  as  such  deposit,  being 
at  the  disposal  of  the  depositor,  cannot  be 
regarded  as  having  been  made  to  apply  up- 
on an  undue  indebtedness.  Ellis  v.  State, 
20:  444,  119  N.  W.  1110,  138  Wis.  513. 

251.  The  call  of  a  statute  making  it  an 
offense  punishable  by  imprisonment  to  re- 
ceive money  on  deposit  in  a  bank,  where 
the  one  receiving  it  knows,  or  has  good 
cause  to  know,  that  the  bank  is  unsafe  or 
insolvent,  as  regards  the  act  constituting 
a  criminal  fraud,  is  a  deposit  such  as  will 
create  the  relation  of  debtor  and  creditor, 
and  not  one  which,  in  practical  effect,  is 
only  payment  of  an  indebtedness  to  the 
bank.  Ellis  v.  State,  20:  444,  119  N.  W. 
1110,  138  Wis.  513. 

252.  'ihe  deposit  of  a  check  in  a  bank, 
where  it  is  treated  as  money  subject  to 
withdrawal  by  the  depositor  at  his  pleasure, 
constitutes  a  deposit  of  money  within  the 
meaning  of  a  statute  making  it  an  offense 
punishable  by  imprisonment  to  receive 
money  on  deposit  in  a'  bank,  where  the  one 
receiving  it  knows,  or  has  good  cause  to 
know,  that  the  bank  is  unsafe  or  insolvent. 
Ellis  v.  State,  20:  444,  119  N.  W.  1110,  138 
Wis.  513. 

253.  Ihe  failure  of  a  statute  making  it  a 
crime  to  receive  a  deposit  into  an  insolvent 
bank  to  declare  that  the  offer  to  do  a  bank- 
ing business  is  a  declaration  of  solvency, 
for  the  purpose  of  establishing  a  fraud  or 
false  pretense,  to  uphold  the  criminal  lia- 
bility, is  not  fatal  to  the  validity  of  the 
statute,  since  such  offer  to  do  business  is  in 
effect  a  public  declaration  of  solvency,  and 
there  is  therefore  no  necessity  for  the  legis- 
lature to  declare  it.  Re  Pittman,  22:  266, 
99  Pac.  700,  31  Nev.  43. 

254.  The  director  of  a  bank  who  keeps 
open  for  the  receipt  of  deposits  one  of  its 
branches,  knowing  that  the  bank  is  insol- 
Dieest  1-52  I<.R.A.(N.S.) 


vent,  may  be  convicted  under  a  statute  pro- 
viding for  the  punishment  of  an  agent  of  a 
bank  who  receives  deposits  knowing  the 
establishment  to  be  insolvent,  although  he 
is  not  present  in  the  town  where  the  branch 
is  located,  and  has  no  part  in  the  manual 
receipt  of  the  deposit.  State  v.  Mitchell, 
26:  1072,  51  So.  4,  96  Miss.  259. 

(Annotated) 


BAR. 

Power  of  state  to  license  on  ferry  boat,  see 

Intoxicating  Liquobs,  22. 
Of  dower,  see  Doweb,  I.  c. 
Of  judgment,  see  Judgment,  II. 
Of  limitation,  see  LiMn'ATioN  OF  Actions. 


BAR   ASSOCIATION. 

Disqualification  of  judge  who  is  member  of, 
to  sit  in  disbarment  proceedings,  see 
Judges,  19. 


BARBED    AVIRE. 


Injury  to  animals  by,  see  Nuisances,  120, 
127. 


ij  ebrruo 


BARBERS. 


•o   trij'fi.l 


Equal    protection    and    privileges    of,    see 

Constitutional  Law,  239,  296. 
Statute  regulating  as  denial  of  liberty  or 

property,    see    Constitutional    Law, 

431. 
Working  on   Sunday,   see  CoNSTrrtfrioNAL 

Law,  296;   Statutes,  159. 
License   for   barber   business,   see   License, 

41,   96-98. 
Title  of  statute  regulating  business  of,  see 

Statutes,  117. 
Special  legislation  as  to,  see  Statutes,  159, 

160. 

1.  Prohibiting  students  in  barber  col- 
leges from  charging  for  their  work  during 
the  two-year  period  which  the  instruction 
is  required  to  cover  violates  a  constitu- 
tional provision  that  all  persons  shall  have 
a  right  to  the  enjoyment  and  gains  of  their 
own  industry.  Moler  v.  Whisman,  40:' 629, 
147  S.  W.  985,  243  Mo.  571. 

( Annotated ) 


BARBER  SHOP. 


Discrimination     against     negroes     in,     see 
Civil  Rights,  7. 


268 


BARKING— BASTAilDY , 


BARKING. 


As  nuisance,  see  Nuisances,  27. 


BARRIERS. 


Lack  of,  on  bridge,  see  Bbidqes,  8-11. 

At  dangerous  place  in  highway,  see  Contri- 
bution AND  Indemnity,  12 ;  Highways, 
230-239;    Trial,   409. 

In  highway  to  protect  park  strips,  see 
Highways,  197,  198. 

For  highway  which  has  been  discontinued, 
see  Highways,  403. 

Lack  of  barriers  about  opening  into  mill 
race,  see  Negligence,  170. 


BARS. 

Effect  of  leaving  of,  for  convenience  of 
neighbor  when  fencing  land  on  acquisi- 
tion of  easement  by  prescription,  see 
Easements,  25. 


BARTER. 


Of    liquor    as    a    loan,    see    Intoxicating 
Liquors,  95. 


BASEBALL. 


Effect  of  authorizing  game  on  grounds  of 
,  agricultural  society  to  defeat  right  to 
aid  from  state  treasury,  see  Agri- 
cultural Societies,  1. 

Liability  for  negligence  in  playing,  see 
Agricultural  Societies,  2;  Amuse- 
ments, 7-9. 

Measure  of  damages  for  injury  to  spectator 
at  ball  game,  see  Damages,  363. 

Evidence  as  to  precautions  to  prevent  in- 
jury at  game  of,  see  Evidence,  1762. 

Pleading  in  action  for  injury  to  spectator, 
see  Pleading'^   280. 

Proximate  cause  of  injury  to  patron  at 
game  of,  see  Proximate  Cause,  36. 

Question  for  jury  as  to  negligence  towards 
patrons,  see  Trial,  560. 

Playing  of,  on  Sunday,  sec  Constitutional 

)         Law,  297;   Sunday,  5-10. 

Removal  of  city  officers  for  refusal  to  stop 
professional    ball    playing    on    Sunday, 

■         see  Officers,  65. 

False  imprisonment  by  restraint  upon  per- 
son refusing  to  pay  entrance  fee,  see 
False  Imprisonment,  13. 

Injunction  against  ordinance  forbidding 
operation  of  baseball  parks,  see  In- 
junction,  341. 

Voluntary  exposure  to  unnecessary  danger 
in  playing,  see  Insurance,  770. 

See  also  Amusements;  Ball  Games;  Ball 
Playing;  Baseball  Bat;  Basebau, 
Club. 

Dieest  1-52  L.R.A.(N.S.) 


BASEBALL  BAT. 

As  deadly  weapon,  see  Homicide,  30. 


BASEBALL   CLUB. 

Expulsion  of,  from  league,  see  Associa- 
tions, 9,  10. 

Mandamus  to  reinstate  in  league,  see 
Mandamus,  11. 


BASE  FEE. 


Creation    of,    by   lease,    see   Landlord   and 

Tenant,  108. 
Levy  on,  see  Levy  and  Seizure,  12. 


BASTARDY. 


Abatement  of  bastardy  proceeding,  see 
Abatement  and  Revival,  22. 

Limitation  of  time  for  action  to  compel 
support  of  bastard,  see  Action  or 
Suit,  65. 

Question  whether  action  is  civil  or  criminal, 
see  Action  or  Suit,  65. 

Exclusion  of  complainant's  denial  of  preg- 
nancy, see  Appeal  and  EiiiiOR,  1230. 

Prejudicial  error  in  instructions,  see  Ap- 
peal AND  Error,   1374. 

Error  in  bringing  child  into  court  room, 
see  Appeal  and  Error,  1483. 

Attorney's  lien  on  fund  in  bastardy  pro- 
ceedings, see  Attorneys,  68. 

Legitimation  of  bastard,  see  Conflict  of 
Laws,  83;  Parent  and  Child,  II. 

Mayor's  jurisdiction  of  proceedings  in,  see 
Courts,  201. 

Power  of  governor  to  pardon  prisoner  found 
guilty  of,  see  Criminal  Law,  294. 

Effect  of  illegitimacy  on  right  to  inherit, 
see  Descent  and  Distribution,  12-15. 

Evidence  to  show  paternitv,  see  Evidence, 
1510. 

Evidence  of  mother's  declarations  during 
travail,  see  Evidence,  1510. 

Necessity  of  corroborating  testimony  of 
relatrix,  see  Evidence,  2054. 

Sufficiency  of  evidence  as  to,  see  Evn>E»TCE, 
2210,    2211. 

Appointment  of  guardian  ad  litem  to  de- 
fend bastardy  proceedings  against 
minor,  see  Infants,  110. 

Conclusiveness  of  judgment  of  dismissal, 
see  Judgment,   106. 

Venue  of  proceedings  in,  see  Justice  or 
THE  Peace,  8. 

Competency  of  relatrix  as  witness,  see  Wrr- 

NESSE)S,    28. 

See  also  Illegitimates. 

1.  The  issue  in  a  bastardy  proceeding 
is  properly  made  up  when  the  affidavit  and 
declaration  charging  defendant  with  being 
the  father  of  the  child  are  traversed  by  an 


BATH   HOUSE— BENEFICIARY. 


269 


affidavit  filed  by  him.     Johnson  v.  Walker, 
1 :  470,  39  So.  49,  86  Miss.  757. 

2.  One  bound  over  to  the  circuit  court 
by  the  maj'or  of  a  city  in  a  bastardy  pro- 
ceeding waives  the  question  of  the  mayor's 
jurisdiction  over  his  person  by  pleading  to 
the  action  without  raising  such  question. 
Evans  v.  State  ex  rel.  Freeman,  2:  619,  74 
N.  E.  244,  75  N.  E.  651,  165  Ind.  369. 

3.  Prosecutrix  in  a  bastardy  proceed- 
ing is  not  precluded  from  retaining  private 
counsel,  by  a  statute  making  it  tlie  duty 
of  the  district  attorney  to  appear  and  prose- 
cute inl  such  actions,  since  the  proceeding 
is  not  primarily  to  punish  defendant,  but 
to  recover  compensation  for  the  person  in- 
jured. State  V.  Siuith,  33:  463,  130  N.  W. 
894,  146  Wis,  111.  (Annotated) 


BATH  HOUSE. 


Liability   of   proprietor   of,   see  Bailment, 

12;    iNNKEEl'EKS,  4. 

Forbidding  solicitation  of  business  by,  at 
railroad  stations,  see  Constitutional 
Law,    688. 

Damages  for  expulsion  from,  see  Dam- 
ages, 629. 


BATHING. 


Forbidding  bathing  in  pond  from  which 
public  water  supply  is  taken,  see  Con- 
stitutional Law,  516,  674;  Waters, 
126. 

Public  right  of  bathing  on  seashore,  see 
Watebs,  68. 


BATHIXG  RESORTS. 

Liability  of  married  woman  for  negligence 
in  conducting,  see  Husband  and  Wife, 
28. 

Pleading  in  action  for  injury  at,  see  Plead- 
ing, 278. 

1.  The  owner  of  a  public  bathing  resort 
may  be  found  to  be  negligent  where  he  places 
no  signs  as  to  depth  of  water,  or  marks  to 
indicate  danger,  and  keeps  no  one  at  hand 
to  aid  persons  in  danger,  and  takes  no  steps 
to  aid  a  person  actually  in  peril  until  too 
lute  to  be  of  any  avail.  Larkin  v.  Saltair 
Beach  Co.  3:  982,  83  Pac.  686,  30  Utah,  80. 

(Annotated) 

2.  A  patron  of  a  public  bathing  resort 
is  not  negligent  so  long  as  he  remains  in 
the  territory  in  which  the  public  generally 
are  invited  to  bathe,  unless,  with  knowl- 
edge or  notice  of  danger,  he  puts  himself  in 
a  position  of  peril.  Larkin  v.  Saltair  Beach 
Co.  3:  982,  83  Pac.  686,   3C  Utah,  86. 

3.  One  who  maintains  a  public  bathing 
resort  with  a  springboard  for  diving  pur- 
poses, over  water  too  shallow  to  permit  div- 
ing without  injury,  is  liable  for  injury  to  a 
Digest  1-52  L.R.A.(N.S.) 


patron  who  attempts  to  use  it  without  warn- 
ing of  the  danger.  Turlington  v.  Tampa 
Electric  Co.  38:  72,  56  So.  696,  62  Fla.  398. 

(Annotated) 


■♦♦»■ 


BATTERY. 

See  Assault  and  Battebt. 
♦-•-♦ 


BAWDY   HOUSE. 

See  DisoRDEBLY  Houses. 


BAY. 

Presumption  as  to  rights  in,  see  Evidence, 
620. 


BEER. 

Intoxicating  character  of,  see  Evidence, 
693-695;  Intoxicating  Liquors,  13. 
101,  106-113. 

Near  beer,  see  Neab  Beeb. 

In  general,  see  Intoxicating  Liquobs. 


♦  •♦ 

BEET    GROWER.  -Vq 

Contract  to  instruct  in  making  of  crop,  siee 
Contracts,  387,  687. 


BEHAVIOR. 


Evidence  of  good  behavior  of  prosecutrix 
on  prosecution  for  incest,  see  Evidence, 
1576. 


BELIEF. 

Effect  of,  on  criminal  liability,  see  Crim- 
inal Law,  1. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  II.  e,  5. 

Of  person  making  fraudulent  representa- 
tions, see  Fraud  and  Deceit,  IV. 

As  question  for  jury,  see  Trial,  294,  295. 


BENEFICIARY. 


In  insurance  policy,  see  Insubance. 

In  trust,  see  Trusts. 

In  will,  see  Wills,  III.  37-42. 


270 


BENEFIT  CERTIFICATES— BENEVOLENT  SOCIETIES,  II. 


BENEFIT    CERTIFICATES. 

See  Insubajs'CE. 


#  >  » 


BENEFITS. 

Restoration  of  benefits  received  as  condi- 
tion precedent  to  suit,  see  Action  or 
Suit,  I.  b,  2. 

Restoring,  on  rescission  of  contract,  see 
Contracts,  397-738. 

Deducting  benefits  resulting  from  nuisance 
from  damages  for,  see  Damagejs,  506. 

Deduction  for,  in  condemnation  proceedings, 
see  Damages,  III,  1,  6. 

Estopi>el    by   receiving,    see   Estoppesl,   III. 

As  basis  of  assessment  for  public  improve- 
ment, see  Public  Improvements,  42, 
60-53,  70,  71. 

Necessity  of,  to  sustain  special  taxes,  see 
Taxes,  43. 


♦-•-♦ 

BENEVOLENT  SOCIETIES. 

I.  In  general,  1—3. 
II.  Local   lodges,   4—8. 
III.  Constitution,    rules,    and    by-laws, 

9-12. 
IV.  Membership;    expulsion;    liability, 
13-15. 
V.  Irregularities ;  dissolution. 

For  associations,  generally,  see  Associa- 
tions. 

Gift  to  pay  death  benefits  and  assist  mem- 
bers of,  see  Charities,  5. 

Consideration  for  subscription  to,  see  Con- 
tracts, 100. 

Jurisdiction  over,  see  Courts,  I.  d. 

Garnishment  of,  see  Garnishment,  21,  47. 

Insurance  by,  see  Insurance. 

As  to  railroad  relief  associations,  see  Rail- 
road Relief  Associations. 

Taxation  of  property  of,  see  Taxes,  85,  91, 
185. 

Validity  of  bequest  to,  where  will  was  wit- 
nessed by  member  of,  see  Wills,  180. 

I.  In  general. 


(Bee  also   same  heading  in  Digest  L.R.A. 
1-10.) 

Povrer  to  take  nnder  xriW. 

1.  The  heirs  of  a  testate  may  call  in 
question  the  power  of  a  fraternal  beneficiary 
association  to  take  under  the  will.  Kennett 
v.  Kidd,  44:  544,  125  Pac.  36,  87  Kan.  652, 
130  Pac.  691,  89  Kan.  4.  (Annotated) 

2.  Under  a  statute  authorizing  a  camp 
of  Modern  Woodmen  to  take,  hold,  and  dis- 
pose of  personal  estate  for  the  purpose  of 
their  corporation,  and  providing  that  the 
fund  from  which  benefits  shall  be  paid,  and 
expenses,  shall  be  derived  from  assessments, 
premiums,  or  dues  collected  from  its  mem- 
bers, such  a  camp  cannot  take  a  bequest  of 
Dieest  1-52  Ii.R.A.(N.S.) 


personal  property.  Kennett  v.  Kidd,  44: 
544,  125  Pac.  36,  87  Kan.  652,  130  Pac.  691, 
89  Kan.  4. 

3.  Under  a  statute  authorizing  a  camp 
of  Modern  Woodmen  to  purchase,  hold,  and 
dispose  of  such  real  estate,  including  such 
suitable  building  or  buildings  as  may  be 
necessary  to  provide  suitable  accommoda- 
tions for  the  holding  of  its  meetings  and 
transaction  of  its  business,  and  providing 
further  that  the  fund  from  whicli  the  bene- 
fits of  said  order  shall  be  paid,  and  expenses, 
shall  be  derived  from  assessments,  premiums, 
or  dues  collected  from  its  members,  such  a 
camp  cannot  take  a  devise  of  farm  lands. 
Kennett  v.  Kidd,  44:  544,  125  Pac.  36,  87 
Kan.  652,  130  Pac.  691,  89  Kan.  4. 

//.  Local  lodges. 

(See   also   same   heading   in   Digest   L.R.A. 

1-10.) 

Power  of  officers  to  waive  provisions  in  bene- 
fit certificates,  see  Insurance,  537. 

4.  The  secretary  of  a  local  branch  of  a 
fraternal  society,  charged  with  the  duty  of 
collecting  the  assessments  on  benefit  cer- 
tificates issued  by  the  grand  lodge,  is  the 
agent  of  such  lodge  with  respect  to  the 
business  of  such  collections.  Trotter  v. 
Grand  Lodge,  1.  L.  of  H.  7:  569,  109  N.  W. 
1099,  132  Iowa,  513. 

Rights  and  powers  of  local  lodge. 
Authority  to  apply  amount  due  member  for 

benefits  in  payment  of  assessment,  see 

Insurance,  406. 
Waiver  by   local  lodge  of  right  of   society 

to  insist  on  forfeiture  of  certificate,  see 

Insurance,  594-596. 

5.  The  officers  of  the  subordinate  tent, 
an  unincorporated  association,  of  a  frater- 
nal beneficiary  order,  may  be  found  by  the 
jury  to  have  been  acting,  while  conducting 
initiation  ceremonies,  as  the  agents  of  the 
supreme  tent,  a  foreign  corporation,  and 
within  the  scope  of  tlieir  authority  to  such 
an  extent  as  to  render  the  supreme  tent 
liable  for  an  injury  to  the  person  being 
initiated,  where  the  injury  resulted  from  an 
act  specifically  prescribed  and  enjoined  by 
the  ritual  prepared  by  the  supreme  tent; 
and  the  latter  cannot  escape  liability  under 
a  provision  of  the  by-laws  which  makes  the 
subordinate  tent  the  agent  of  its  members 
in  making  applications  for  membership,  in 
the  admission  of  members,  and  the  collec- 
tion and  transmission  of  dues,  and  provides 
that  the  supreme  tent  shall  not  be  liable 
for  negligence  in  any  of  such  matters,  nor 
bound  by  any  "illegal  action"  on  the  part  of 
such  subordinate  tent.  Thompson  v.  Su- 
preme Tent  K.  O.  T.  M.  13:  314,  82  N.  E.  141, 
189  N.  Y.  294.  (Annotated) 

6.  A  benefit  fund  belonging  to  a  subor- 
dinate lodge,  and  distributed  in  good  faith 
to  those  entitled  to  receive  it  after  notice 
of  revocation  of  its  charter,  cannot  be  re- 
covered by  the  parent  body  under  a  statute 
requiring  moneys  to  be  turned  over  to  it 
in  such  an  event,  where  the  act  also  pro- 
vides that  the  funds  are  to  be  held  for  the 
same  purposes  and  intents  for  which  they 
were  received  by  the   subordinate  associa- 


BENEVOLENT  SOCIETIES,  III.— BERTH. 


271' 


tion.    State  Council  J.  O.  U.  A.  M.  v.  Emery, 
15:  336,  68  Atl.  1023,  219  Pa.  4G1. 

7.  A  benefit  fund  contributed  by  the 
membera  of  a  subordinate  lodge  for  their 
own  use  belongs  to  them,  and  cannot,  upon 
the  revocation  of  its  charter,  be  taken  by 
the  parent  body  under  charter  provisions 
which  require  the  property  of  the  former  to 
be  turned  over  to  the  latter,  but  in  which 
no  mention  is  made  of  money;  nor  under  a 
statute  requiring  "moneys"  to  be  turned 
over,  where  it  also  provides  that  such  funds 
shall  be  held  for  the  same  purposes  and  in- 
tents for  which  they  were  received  by  the 
subordinate  association, — especially  where 
no  provision  is  made  for  the  collection  and 
disbursement  of  such  fund  by  the  parent 
body.  State  Council  J.  0.  U.  A.  M.  v.  Em- 
ery, 15:  336,  68  Atl.  1023,  219  Pa.  461. 

(Annotated) 

8.  The  majority  of  a  subordinate  lodge 
of  a  benevolent  society  cannot  authorize  a 
secession  of  the  lodge  from  the  parent 
organization,  and  take  with  them  the  prop- 
erty of  the  order,  if  the  general  laws  cf  the 
order  provide  that  all  property  and  funds 
of  a  lodge  shall  be  held  exclusively  as  a 
trust  fund  for  carrying  on  the  fraternal 
and  benevolent  features  of  the  order,  and 
shall  not  be  expended  for  any  other  pur- 
pose, and  tliat  no  part  of  the  property 
shall  ever  be  divided  among  the  members, 
and  if  any  lodge,  for  any  reason,  shall  cease 
to  exist,  all  its  property  shall  immediately 
and  ipso  facto  revert  to  the  superior  lodge. 
Grand  Court  of  Washington  F.  of  A.  v. 
Hodel,  47:  927,  133  Pac.  438,  74  Wash.  314. 

( Annotated ) 

III.    Constitution,    rules,    and   by-laws. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Stipulation  as  to  conclusiveness  of  decisions 
of  tribunals  of  order,  see  Courts,  167, 
168. 

As  to  matters  relating  to  insurance,  see 
Insurance,  93-114,  430,  431. 

Changes  in. 

In  matters  relating  to  insurance,  see  In- 
surance,  95-98,   100-105,   108-113. 

9.  ^he  classification  of  members  of  a 
mutual-benefit  society  according  to  age,  in 
a  by-law  readjusting  methods  of  assessment, 
is  not  illegal.  Reynolds  v.  Supreme  Council, 
R.  A.  7:  1154,  78  N.  E.  129,  192  Mass.  150. 

10.  A  mutual-benefit  society  has  power 
to  amend  its  by-laws  so  as  to  increase  the 
assessments  on  its  members,  where  the  ex- 
isting rate  has  proved  inadequate,  under 
charter  authority  to  provide  for  the  pay- 
ment of  a  certain  death  benefit,  to  be  se- 
cured by  assessment,  and  to  provide  for  the 
amendment  of  its  by-laws.  Reynolds  v.  Su- 
preme Council,  R.  A.  7:  1154,  78  N.  E.  129, 
192  Mass.  160.  (Annotated) 

11.  Raising  the  rate  of  assessment  on  a 
member  of  a  mutual -benefit  society  by 
change  of  by-laws  does  not  impair  his  con- 
tract, where  the  by-laws  to  which  he  agreed 
Digest  1-52  I<.R.A.(/f.S.> 


required  him  to  conform  to  the  laws  then  in 
force,  or  which  might  thereafter  be  adopted. 
Reynolds  v.  Supreme  Council,  R.  A.  7:  1154, 
78  N.  E.  129,  192  Mass.  150. 

12.  An  agreement  by  a  member  of  a 
fraternal  benefit  association  to  be  bound  by 
subsequently  enacted  by-laws  will  be  up- 
held when  such  by-laws  are  reasonable  in 
their  nature  and  legally  enacted.  Lange  v. 
Royal  Highlanders,  10:  666,  106  N.  W.  224, 
110  N.  W.  1110,  75  Neb.  188. 

IV.    Membership;    expulsion;    liability. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Members  bound  by  by-laws,  etc.,  see  supra, 
HI. 

Expulsion. 

Error  in  failing  to  instruct  in  action  for 
expulsion  of  member,  see  Appeal,  and 
Error,  1427. 

Review  by  courts  of  expulsion,  see  Courts, 
177,  178. 

13.  Members  of  the  supreme  council  of  a 
benefit  society  are  disqualified  to  try  and 
expel  a  member  for  defaming  the  members 
of  such  council  by  charging  them  with  graft, 
fraud,  and  dishonesty,  and  an  attempted  ex- 
pulsion by  them  is  void,  where,  under  the 
rules  of  the  order,  other  persons  might  have 
been  chosen  as  triers,  at  least  where  the 
truth  of  the  charge  against  them  is  in 
issue.  Wilcox  v.  Supreme  Council,  R.  A. 
52:  806,  104  N.  E.  624,  210  N,  Y.  370. 

14.  The  validity  of  the  expulsion  of  a' 
member  of  a  benefit  society  by  a  prejudiced 
committee  may  be  collaterally  attacked  in 
an  action  on  his  certificate,  where  there  is 
no  method  of  directly  reviewing  such  ex- 
pulsion. Wilcox  V.  Supreme  Council, 
R.  A.  52:  806,  104  N.  E.  624,  210  N.  Y.  370. 
Liability  of  members. 

15.  Persons  who  did  not  receive  improp- 
erly disbursed  lodge  funds  are  not  account- 
able therefor,  under  a  statute  permitting  re- 
covery only  from  those  who  have  received 
the  money.  State  Council  J.  O.  U.  A.  M.  v. 
Emery,  15:  336,  68  Atl.  1023,  219  Pa.  461. 

F.  Irregularities;  dissolution. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 


BEQTJUST. 


See  Wills,  III. 


BERTH. 

Duty  to  supply,  to  passenger,  see  Carriers, 
22-24,  44;    Damages,  74. 

Statute  giving  occupant  of  lower  berth  con- 
trol of  unoccupied  upper  berth,  see 
CONSTITUTIONAI,  LAW,  448,  670,  684. 


272  BERTILLON  SYSTEM— BIGAMY. 

BERTILLON  SYSTEM.  ]  BICYCLES. 


For    identification   of   criminals,   see   Cbim- 
INAL  Law,  122,  123. 


^>» 


BEST  AND  SECONDARY  EVIDENCE. 

See  Evidence,  III. 

♦-•-♦ • 

BETTERMENTS. 
See  Impbovements. 

♦  •» 


BETTING. 

Validity  of  gambling  and  wager  contracts, 

see  CONTBACTS,  III.  d. 
On  horse  race,  see  Gaming,  22-26. 
Petition   in  action  to  recover  amount  lost, 

see  Pleading,  385. 
As  to  gaming  generally,  see  Gaming, 

1.  Betting  on  horse  racing  is  not  within 
a  statute  making  criminal  "betting  any 
money  on  any  game  of  hazard  or  skill." 
State  T.  Vaughan,  7:  899,  98  S.  W.  685,  81 
Ark.  117.  (Annotated) 

2.  Rooms  where  bets  are  made  on  horse 
racing  are  common  nuisances  at  common 
law,  although  betting  on  horse  races  is  not 
prohibited  by  statute.  State  v.  Vaughan, 
7:  899,  98  S.  W.  685,  81  Ark.  117. 


BEVERAGE. 


Manufacturer's  liability  for  injury  from 
swallowing  broken  glass  in  bottle,  see 
Negligence,  59. 


BIAS. 

As  ground  for  injunction  against  superin- 
tendent's revocation  of  teacher's  li- 
cense,  see   Injunction,   319. 

Disqualification  of  judge  by,  see  Judges, 
8,  9,   16-19. 

Effect  of,  on  competency  of  jurors,  see  Juby, 
64-71. 

Of  referee,  see  Refeeence,  2. 

Impeachment  of  witness  by  showing,  see 
Witnesses,  1,  140,  143. 


BIBLE. 

Admissibility  in  evidence  of  entries  in,  see 

Appeal  and  Ereor,   1166. 
Reading  of,  in  schools,  see  Constitittionai. 

IxAW,   760,   761;    Public   Moneys,   17; 

Schools,  64,  65. 
IHcest  1-52  I..R.A.(N.8.) 


Contributory  negligence  of  person  riding, 
see  Automobiles,  64. 

Riding  of,  on  sidewalk,  see  Highways,  206, 
207;   Negligence,   179. 

Duty  to  keep  street  safe  for  use  of,  see 
Highways,  182,  183. 

Proximate  cause  of  injury  to  rider  by  de- 
fect in  highway,  see  1'koximate  Cause, 
116. 

Negligence  of  bicycle  rider  at  railroad 
crossing,  see  Railroads,  220,  283. 

1.  Permission  of  a  municipal  ordinance 
is  not  justification  for  violating  a  statutory 
law  proliibiting  the  riding  of  bicycles  on  a 
sidewalk.  Millett  v.  Princeton,  10:  785,  7fr 
N.  E.  909,  167  Ind.  582. 


BID. 

Assumpsit  to   recover   amount  of,   see    As- 
sumpsit, 18,  21. 
At  auction,  see  Assumpsit,  18;  Auctions. 
Suppression  of  bidding  at  judicial  sale,  see 

Cancelation  of  Instruments,   17. 
Acceptance  of,  with  notice  of  mistake  as  to 

subject-matter,    see    Contracts,     185; 

Notice,  13. 
Validity    of    contract    to    affect,    see    Coiv- 

TRACTS,  482,  483,  615;   Judicial  Sale. 

7. 
For    public   contract,   see   Contbacts,    VII. 

b. 
At    judicial    sale,    necessity    of    compliance 

with,  see  Judicial  Sale,  12-14. 


BIGAMY. 

Intent  as  element  of  crime,  see  Cbtminal 
Law,  9. 

Presumptions  and  burden  of  proof,  see  Evi- 
dence,  140,   152. 

Sufficiency  of  proof  in  prosecution  for,  see 
Evidence,  2402. 

Indictment  for,  see  Indictment,  etc.,  68. 

1.  A  marriage  contract  at  a  time  when 
the  husband  is  married  to  another  person, 
followed  by  cohabitation  after  his  former 
wife  secures  a  divorce  from  him,  without 
further  contract,  and  without  knowledge  on 
the  woman's  part  of  the  former  marriage  or 
the  divorce,  is  void,  and  will  not  render  the 
husband  guilty  of  big.iiny  in  case  he  aban- 
dons the  woman  and  marries  another.  Mc- 
Combs  V.  State,  9:  1036,  »9  S.  W.  1017,  50 
Tex.  Crim.  Rep.  490. 

2.  That,  at  the  time  one  accused  of 
bigamy  contracted  his  alleged  bigamous 
marriage,  he  had  been  credibly  informed 
that  his  first  wife  had  obtained  a  divorce, 
and  that  he  had  reasonable  cause  to  and 
did  rely  thereon  in  good  faith,  constitutes 
a  good  defense  to  the  crime  charged.  Baker 
V.  State,  27:  1097,  126  N.  W.  300,  86  Neb. 
775.  (Annotated) 

f 


BILLBOAKDS— BILLS  AND  NOTES. 


273 


BIIiliBOARDS. 

Constitutionality  of  statute  as  to,  see  CoN- 
sxnuTioNAL  Law,  320. 

As  violation  of  restrictive  covenants,  see 
Covenants  and  Conditions,  83,  84. 

Forbidding  maintenance  of,  within  city 
limits,  see  Eminent  Domain,  220. 

Contributory  negligence  in  falling  over  bill- 
board in  highway,  see  Highways,  352. 

Municipal  regulation  of  generally,  see  Mu- 
nicipal COKIOKATIONS,   104,   105. 

Billboard  license,  see  Municipal  Corpora- 
tions,  44. 

Tx'aveling  salesman's  authority  to  contract 
for  placing  posters  on,  see  Principal 
AND  Agent,  41. 


BILLIARDS. 


Who  may  question  validity  of  ordinance 
forbidding  maintenance  of  billiard 
tables,  see  Action  ok  Suit,  52. 

Constitutionality  of  ordinance  regulating 
keeping  of  billiard  tables  for  hire,  see 
Constitutional  Law,  243,  424,  692. 

Declaring  billiard  rooms  a  nuisance,  see 
Courts,  161:  Municipal  Corpora- 
tions, 151. 


BILL  OF  EXCEPTIONS. 

On  appeal,  see  Appeal  and  Error,  IV.  o. 

•-•-♦ 

BILL    OF    PARTICULARS. 

See  Pleading,  I.  i. 


BILL  OF  SALE. 


Acknowledgment  of,  see  Acknowlb3)gment, 

2. 
Production   of,   by  one  accused   of   stealing 

property,  see  Appeal  and  Error,  927. 
Parol   evidence   as   to   intention   of   parties 

to,  see  Evidence,  966,  981,  982. 


BILL  POSTING. 


As  oflFensive  trade  within  meaning  of  re- 
strictive covenant,  see  Covenants  and 
Conditions,    84. 

As  to  billboards,  see  Billboards. 


BILLS. 

Sufficiency  of  proof   of  sending  of,  to  cus- 
tomers, see  Evidence,  2307. 
Digest  1-52  L.R.A.(N.S.) 


Presentation   of   telephone   bills,   see   Tele- 
phones, 6. 
See  also  Statutes. 


BILLS   AND    NOTES. 

J.  Nature;  requisites  and  validity,  1— 
64. 

a.  In  general,   1—11. 

b.  Validity     generally;     delivery, 

12-19. 

c.  Consideration,  20—37. 

d.  Negotiability,  38—64. 

1.  In  general,   38-49. 

2.  Certainty    as    to    maturity 

and  amount,  50—64. 
II.  Acceptance,   65—67. 

III.  Indorsement  and  transfer,  68—97. 

a.  In  general,  68—75. 

b.  Liability    of    indorser,    76—92. 

1.  In  general,    76—87. 

2.  Indorsement  at   or   before 

delivery,  88—91. 

3.  Restrictive     indorsements, 

92. 

c.  Discharge  of  indorser,  93—95. 

d.  Transfers       ivithout      indorse- 

ment,  96,   97. 

IV.  Presentment;       demand;       notice; 

protest,   98-112. 
a.  In  general;  necessity,  98—108. 
h.  Sufficiency,  109,  110. 

c.  Notice  of  protest;  certificate. 

d.  Damages    for    nonacceptance, 

nonpayment       and       protest, 
111,  112. 
V.  Rights  and  liabilities  of  transfer- 
ees,  113—195. 

a.  Extent    of   rights   and    protec- 

tion generally,  113—158. 

1.  In  general,  113—137. 

2.  Of  bona  fide  holders,  138— 

158. 

b.  Who  are  protected  a^  bona  fide 

purchasers,    158a— 195. 

1.  In  general,   158a— 166. 

2.  Knowledge;    notice;    facts 

putting  on  inquiry,  167— 
187. 

3.  Taken  as  collateral  securi- 

ty or  for  antecedent  debt, 
188-195. 
VI.  Actions    and    defenses;    maturity; 
extension  and  renewal,  196— 
222. 

a.  In   general;  right   of  indorser 

to  sue. 

b.  Maturity ;  extension;  renewal, 

196—202. 

c.  Defenses,  203—222. 

Statement  of  amount  of  principal  and  in 
terest  due  on  note  as  account  stated, 
see  Accounts,   5,   6. 

Alteration  of,  see  Alteration  of  Instru- 
ments, II. 

Guaranty  of,  see  Appeal  and  Error,  1317; 
Guaranty. 

18 


274 


BILLS  AND  NOTES. 


Right  of  maker  to  recover  from  payee 
amount  paid  bona  fide  purchaser,  see 
ASSUTilPSIT,    5. 

Draft  with  bill  of  lading  attached,  see 
Assumpsit,  36;  Bills  of  Lading; 
Conflict  of  Laws,  112,  113;  Courts, 
301;  Evidence,  1158;  Parties,  8; 
Sale,  22. 

Provi8ion  in,  for  attorney's  fees,  see  Attob- 
NEYs'  Fees. 

Authority  of  bank  officers  as  to  note  given 
by  bank,  see  Banks,  21. 

Promise  by  cashier  to  one  signing  note 
without  consideration,   see  Banks,   24. 

Authority  of  cashier  to  extend  time  of  pay- 
ment of  note  due  bank,  see  Banks, 
30. 

Payment  out  of  bank  deposits,  see  Banks, 
72. 

Loan  by  bank  of  customer's  money  on  a 
note,  see  Banks,  72. 

Taking  money  for  draft  by  bank  when  in- 
solvent, see  Banks,  205-208. 

Money  received  by  insolvent  banker  as  pay- 
ment on,  as  trust  fund,  see  Banks, 
210. 

As  to  checks,  see  Banks,  IV.  a,  3;  Checks. 

As  to  certificate  of  deposit,  see  Banks,  IV. 
a,  4. 

Collection  of,  see  Banks,  IV.  b. 

Preference  by  bankrupt  to  one  executing 
accommodation  paper,  see  Bank- 
ruptcy,  77. 

Bills  of  lading  as  commercial  paper,  see 
Bills  of  Lading,  1. 

Bond  to  protect  anotlier  against  loss  by 
reason  of  nonpayment  of  commercial 
paper,  see  Bonds,  1. 

Validity  of  chattel  mortgage  securing  un- 
signed note,  see  Chattel  Mortgage, 
1. 

Compromise  by  giving  of,  see  Compromise 
and  Settlement,  6. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  L  b,  2. 

Agreement  to  indemnify  surety  on  note, 
against  loss,  see  Contracts,  53. 

Sufficiency  of  consideration  for  promise  not 
to  sue  on,  see  Contracts,  59. 

Consideration  for  agreement  to  pay  past 
due  note  of  another,  see  Contracts, 
97. 

Indebtedness  arising  from  promissory  notes 
as  "outstanding,  and  open  account,"  see 
Contracts,  373. 

Construction  of  agreement  to  pay  draft,  see 
Contracts,  368. 

Contract  by  holder  of  note  to  sell  to  maker 
at  specified  time  before  maturity  at  a 
discount,  see  Contracts,  406. 

Recovery  from  payee  of  amount  paid  to 
bona  fide  holder  of  invalid  note,  see 
Contracts,  575. 

Recovery  from  payee  of  amount  paid  bona 
fide  holder  of  note  because  of  failure 
of  consideration,  see  Insurance,  434. 

Modification  of  contract  by  parties  to,  see 
Contracts,  705. 

Power  of  corporation  as  to,  see  Corpora- 
tions, 73-75, 

Liability  of  corporate  officers  on,  see  Corpo- 
rations, 166. 

Digest  1-52  L.R.A.(N.S.) 


Payment  by  note,  see  Corporations,  210, 
218;  Evidence,  535;  Judgment,  316; 
Payment,  3-6;    Subrogation,   10. 

Note  executed  by  president  of  corporation 
to  pay  his  own  debt,  see  Corporations, 
154,  155. 

Damages  for  refusal  of  purchaser  to  execute 
note  for  purchase  price,  see  Damages, 
175. 

Ratification  of  note  execution  of  which  is 
secured  by  duress,  see  Duress,  4. 

Elfect  of  treating  as  chattel  mortgage  in 
suit  for  payment  by  receiver,  see 
Election  of  Remedies,  25. 

Jurisdiction  of  equity  to  cancel,  see  IkjuiTT, 
84. 

Jurisdiction  of  equity  of  suit  by  payee 
against  parties  loaning  money  on  note 
contrary  to  instructions,  see  Equity, 
29. 

Retention  of  jurisdiction  in  suit  to  secure 
cancelation  of  notes,  see  Equity,  110. 

Estoppel  by  representations  as  to  validity, 
see  Estoppel,  61,  168,  109. 

Estoppel  as  to,  by  negligence,  see  Estoppel, 
184-191. 

Estoppel  to  deny  agent's  authority  as  to, 
see  Estoppel,  102. 

Estoppel  to  look  to  bank  for  reimbursement 
by  attempting  to  collect  from  forger 
of  indorsement,  see  Estoppel,   132. 

Estoppel  to  apply  payment  to  interest  in- 
stead of  to  principal,  see  Estoppel,  87. 

Estoppel  to  treat  note  as  existing  for  one 
purpose  and  repudiate  it  for  another, 
see  Estoppel,  217. 

Necessity  that  transferee  of  warehouse  re- 
ceipts should  prove  that  he  obtained 
them  bona  fide,  see  Evidence.  591. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  111,  136,  535,  580-591,  604, 
639,  670. 

Presumption  of  agency  to  receive  payment 
of,  see  Evidence,  131. 

Evidence  iU  action  by  receiver  to  enforce 
note  that  it  was  delivered  on  condi- 
tion, see  Evidence,  1026. 

Expert  evidence  as  to  meaning  of  terms  in, 
see  Evidence,  1136. 

Evidence  of  declarations  of  payee  to  im- 
peach validity  of  note,  see  Evidence, 
1456. 

Evidence  as  to  nonexecution,  see  Evidence, 
2452. 

As  evidence,  see  Evidence,  TV.  m. 

Parol  evidence  as  to,  see  Evidence,  VI.  f. 

Forgery  of,  see  Forgery. 

Fraud  as  to,  see  Fraud  and  Deceit,  VI. 

Right,  before  payment  of  note,  to  maintain 
action  for  fraud  in  securing  its  execu- 
tion, see  Fraud  and  Deceit,  75. 

Effect  of  statute  precluding  recovery  of 
money  loaned  for  purpose  of  gaming, 
see  Gaming,  14,  15. 

Gift  of,  -ee  Gift,  8-10. 

Guaranty  of,  see  Guaranty. 

When  guardian's  duty  as  to  draft  for  ward's 
share  commences,  see  Guardian  and 
Ward,  17. 

By  married  woman,  see  Husband  and 
Wife,  34-36,  40,  42. 


BILLS  AND  NOTES,  I.  a. 


275 


Joint  notes  of  husband  and  wife,  see  Hus- 
band AND  Wife,  91. 

Wife's  right  of  action  on  note  executed  by 
husband,  see  Husband  and  Wife,  197. 

Effect  of  marriage  on  notes  made  by  man 
to  his  intended  wife,  see  Husband  and 
Wife,  58. 

By  incompetent  person,  see  Incompetent 
Persons,  II. 

Indictment  for  securing  note  by  false  pre- 
t'nses,  see  Indictment,  etc.  86. 

Injunction  a;jainst  trover  to  recover  paid 
note,  see  iNJUNCiTON,  297. 

Premium  notes,  see  Insurance,  331-:^92, 
413,  424-426,  479,  480,  489,  567,  601; 
Taxes,  67. 

Giving  of  note  to  injured  employee  aa  pay- 
ment of  judgment  against  employer,  see 
Insurance,  928. 

Interest  on,  see  Inte21est,  13,  14,  56. 

Conclusiveness  in  other  state  of  judgment 
on,  see  Judgment,  285,  292. 

Relief  against  judgment  on,  see  Judgment, 
334,  335. 

Note  made  on  Sunday,  see  Judgment,  334. 

Attachment  of  note,  see  Levy  and  Seizure, 
17. 

Eights  under  mortgage  securing,  where  ac- 
tion on  note  is  barred,  see  Limitation 
OF  Actions,  86,  87,  135. 

Effect  of  payment  of  interest  on  barred  note 
to  revive  mortgage  securing  it,  see 
Limitation  of  Actions,  328. 

Lost  note,  see  Lost  Instruments. 

Efl'ect  of  taking  judgment  on  note  alone 
when  secured  by  mortgage,  see  Mort- 
gage, 76.' 

Merger  of  note  in  judgment  thereon,  see 
MomoAGE,  83. 

Construing  together  provisions  in  mort- 
gage and  in  note  secured  thereby,  see 
Mortgage,  93. 

Draft  drawn  in  fictitious  name,  see  Name, 
2. 

Notice  to  surety  of  broker  that  customer's 
notes  taken  as  collateral  security  were 
execiited  in  gaming  transactions,  see 
Notice,  6. 

Notice  of  forgery  of,  see  Notice,  28. 

Right  of  one  paying  draft  against  bill  of 
lading  for  goods  shipped  to  another  to 
maintain  action  against  carrier,  see 
Parties,  8. 

Right  of  bank  to  maintain  suit  to  recover 
notes  pledged  by  agent,  see  Parties, 
65. 

Cancelation  of,  in  partition  suit,  see  Par- 
tition, 19. 

Power  of  partners  as  to,  see  Partnekship, 
19-24;  Trial,  878,  1017. 

Effect  of  accepting  note  of  one  partner  for 
partnership  debt,  see  Partnership,  30. 

Liability  of  retiring  members  of  partner- 
ship on  firm  note,  see  Partnership,  81. 

Acceptance  of  check  in  payment,  see  Pay- 
ment, 9,  10. 

Pleading  as  to,  see  Pleading,  244-249. 

Collateral  security  for,  see  Pledge  and  Col- 
lateral Security,  14,  15. 

Pledge  of  notes,  see  Pledge  and  Collateb- 
AL  Security,  15,  17,  21,  27. 

Digest   1-52  L.R.A.(N.S.) 


Cancelation  for  fraud  of  notes  held  as  col- 
lateral, see  Pledge  and  Collateral  Se- 
curity, 17. 

Power  of  agent  as  to,  see  Principal  and 
Agent,  54-59,  86. 

Wrongful  transfer  of,  by  agent  to  bona  fide 
purchaser,  see  Principal  and  Agent, 
71. 

Surety  on,  see  Principal  and  Surety. 

Detinue  for  recovery  of,  see  Replevin,  13, 
14. 

Effect  of  taking  notes  on  conditional  sale, 
see  Sale,  43. 

Effect  of  indorsing  purchase  money  note  as 
collateral  to  third  person  on  condition- 
al sale  contract,  see  Sale,  44. 

Refusal  of  vendee  to  execute  notes  for  pur- 
chase price  of  property,  see  Sale,  124. 

For  purchase  price  of  chattel;  liability 
where  property  is  destroyed  while  in 
seller's  hands,  see  Sale,  147. 

Subrogation  of  one  paying,  see  Subroga- 
tion. 

Construction  of  negotiable  instruments  law,        f 
see  Statutes,  209. 

Conflict  between  negotiable  instruments 
law  and  statutes  defining  rights  and 
liabilities  of  sureties,  see  Statutes, 
335. 

Taxation  of  premium  notes,  see  Taxes,  67. 

Where  taxable,  see  Taxes,  138-141. 

Succession  tax  on  notes  held  by  nonresident, 
see  Taxes,  340-341a,  344. 

Sufficiency  of  draft  as  tender  for  rent,  see 
Tender,  13. 

Intent  of  payee  in  adding  clause  to  note  as 
question  for  jury,  see  Trial,  285. 

Question  for  jury  whether  mortgage  was 
intended  to  secure,  see  Trial,  288. 

Authority  of  agent  to  take  notes  in  pay- 
ment, see  Trial,  311. 

Trover  to  obtain  paid  note,  see  Trover,  11. 

Individual  liability  of  one  signing  note  as 
trustee,  see  Trusts,  120. 

Usury  in,  see  Usury. 

Secured  by  vendor's  lien,  see  Vendor  and 
Purchaser,  II. 

Probate  of  note  as  will,  see  Wills,  12. 

I.   Nature;  requisites  and  validity, 

a.   In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  Those  who  execute  negotiable  paper 
and  set  it  afloat  are  chargeable  witli  a  much 
higher  degree  of  diligence  and  caution  than 
is  chargeable  to  those  who  purchase  such 
paper  in  due  and  regular  course  of  business. 
Vaughn  v.  Johnson,  37:  816,  119  Pac.  879, 
20  Idaho,  669. 

2.  One  signing  a  promise  to  sign  a  speci- 
fied note  with  another  will  be  held  liable 
in  equity  as  though  he  had  in  fact  affixed 
his  signature  to  the  note.  Pettv  v.  Clacking. 
33:  175,   133  S.  W.  832,  97  Ark.  217. 

(Annotated) 

3.  An  indorsement  of  a  fictitious  pay- 
ment on  the  back  of  a  note  before  delivery 
to  reduce  it  to  the  amount  which  the  dis- 


27  (> 


BILLS  AND  ^OTES,  I.  b. 


counting  bank  is  willing  to  advance  upon 
it  occurs  before  execution  of  the  note,  for 
the  purpose  of  determinin<^  its  effects  upon 
the  instrument.  Washington  Finance  Corp. 
V.  Glass,  46:  1043,  134  Pac.  480,  74  Wash. 
663. 

4.  A  writing  in  the  form  of  a  promis- 
sory note,  in  which  tlie  blank  for  the 
amount  payable  is  not  filled,  is  incomplete, 
and  will  not  sustain  an  action  at  law,  al- 
though an  amount  is  written  in  words  and 
figures  in  the  margin.  Chestnut  v.  Chest- 
nut, 2:  879,  52  S.  E.  348,  104  Va.  639. 

(Annotated) 

6.  A  written  agreement  modifying  the 
terms  of  an  accepted  bill  of  exchange,  and 
securely  glued  thereto,  is  a  part  thereof, 
and  cannot  [>.■  lawfully  detached  therefrom 
without  the  maker's  consent.  Boll'  11  v. 
Schweitzer,  22:  263,  120  N.  W.  1129,  84 
Neb.  271. 

6.  A  draft  drawn  in  the  ordinary  form 
does    not    constitute    an    equitable    assign- 

I  ment  pro  tanto  of  funds  in  the  hands  of 
the  drawee  to  the  credit  of  the  drawer, 
before  such  draft  has  been  accepted  or  pre- 
sented for  payment.  First  Nat.  Ban!:  v. 
School  Dist.  No.  4,  39:  655,  120  Pac.  614, 
31  Okla.  139. 
What  are. 

Certificate  of  stock  as  a  negotiable  instru- 
ment, see  Corporations,  222. 

7.  PostofRce  money  orders  are  not  ne- 
gotiable instruments,  subject  to  the  privi- 
leges permitted  by  the  law  merchant  to 
bona  fide  holders  for  value.  Bolognesi  v. 
United  States,  36:143,  189  Fed.  335,  111  C. 
C.  A.  67.  (Annotated) 

8.  A  written  instrument  by  which  the 
maker  acknowledges  an  indebtedness,  and 
agi'ees  to  pay  it  "as  soon  as  he  can,"  con- 
stitutes a  promissory  note,  payable  within 
a  reasonable  time.  Benton  v.  Benton,  27: 
300,  97  Pac.  378,  78  Kan.  366.  (Annotated) 
Note  payable  to  fictitious  person. 
See  also  infra,  117. 

9.  Where  a  check  is  drawn  by  a  real 
drawer,  who  designates  an  existing  person 
as  the  payee  and  intends  him  to  receive  the 
proceeds,  the  payee  is  not  "a  fictitious  per- 
son" within  the  meaning  of  a  statute  (bills 
of  exchange  act  1882,  §  7,  subs.  3)  provid- 
ing that  where  the  payee  is  a  fictitious  or 
nonexisting  person,  a  bill  may  be  treated  as 
payable  to  bearer ;  and  therefore  one  who, 
induced  by  the  fraud  of  another,  has  drawn 
a  check  to  the  order  of  a  third  person,  actu- 
ally existing,  intending  him  to  be  the  payee, 
is  entitled  to  recover  the  amount  of  the 
check  from  a  bank  which,  receiving  the  check 
with  a  forged  indorsement  of  the  payee's 
name,  has  collected  it  from  the  drawer's 
bank.  North  and  South  Wales  Bank  v. 
Macbeth,  3  B.  R.  C.  748  [1908]  A.  C.  137. 
Also  Reported  in  77  L.  J.  K.  B.  N.  S.  464, 
98  L.  T.  N.  S.  470,  24  Times  L.  R.  397,  13 
Com.   Cas.   219,  52  Sol.  Jo.  353,  354. 

(Annotated) 
Memorandnm   on. 

10.  The  printing  on  a  blank  on  which  a 
draft  is  drawn,  of  the  word  "cotton,"  does 
not  make  such  reference  to  bills  of  lading 
Digest  1-52  L.R.A.(N.S.) 


attached  to  the  draft  as  to  make  the  draft 
conditional  on  the  genuineness  of  the  bills. 
Springs  v.  Hanover  Nat.  Bank,  52:  241,  103 
•  N.  E.  156,  209  N.  Y.  224. 
Note  payable  to  officers  of  corporation. 

11.  A  note  naming  the  payee  as  follows, 
"I  promise  to  pay  to  the  order  of  directors 
of  F.  U.  Gin  &  Mill  Co.  of  Stratford,  I.  T.," 
the  same  being  a  corporation,  is  in  law 
made  payable  to  the  corporation,  and  the 
title  to  same  may  be  passed  by  an  indorse- 
ment thereon  of  the  name  of  the  corpora- 
tion, by  the  secretary  and  treasurer  thereof, 
in  obedience  to  a  resolution  of  its  board 
of  directors.  First  Nat.  Bank  v.  Walker, 
50:  1115,   13G   Pac.  408,  39   Okla.  620. 

(Annotated) 

&.    Validity   generally;    delivery. 

(See  also  same  /uf  ..</  in  Digest  L.R.A. 
1-10.) 

Validity  as  to  transferee,  see  infra,  V. 

Validity  of  provision  for  attorneys'  fees, 
see  Attorneys'   Fees. 

Note  given  to  compound  felony,  see  Con- 
tracts, 618. 

Note  given  in  consideration  of  payee's 
promise  not  to  marry,  see  Coktbacts, 
473. 

Note  payable  to  corporate  oflBcer,  see  Con- 
tracts, 457. 

Note  procured  by  duress,  see  Duress,  4,  8, 
9. 

By  married  woman,  see  Hcsband  and  Wife, 
34-36,  40,  42. 

By  incompetent  person,  see  Incompetent 
Persons,  II. 

Partnership  note,  see  Partnership,  19-24. 

Made  on  Sunday,  see  Sunday,  22,  27. 

See  also  infra,  70. 

12.  An  instrument  promising  for  value 
received  to  pay  a  certain  amount  to  a  cer- 
tain person  if  collected  in  her  lifetime  is 
not  void  as  being  either  an  attempt  by  her 
to  dispose  of  property  at  death  withost  the 
required  formalities,  or  as  an  attempted 
gift  without  the  requisite  person  making 
a  complete  deliverv-  Perrin  v.  Chandler, 
17:  1239,  69  Atl.  874,  81  Vt.  270. 

( Annotated ) 
By  intoxicated  person. 
See  also  infra,  151. 

13.  To  avoid  liability  on  a  promissory 
note  on  the  ground  of  excessive  intoxication, 
the  maker  must  disclaim  liability  within  a 
reasonable  time  after  recovering  his  senses. 
J.  I.  Case  Threshing  Mach.  Co.  v.  Meyers, 
9:  970,  111  N.  W.  602,  78  Neb.  685. 

14.  It  is  not  sufficient  that  one  who  seeks 
to  avoid  liability  on  a  promissory  note  on 
the  ground  of  drunkenness  was  under  undue 
excitement  from  liquor  at  the  time  he  signed 
the  instrument,  but  his  incapacity  must  have 
been  such  as  to  deprive  him  of  his  reason 
and  understanding,  or  render  him  unable  to 
understand  the  character  and  consequences 
of  his  act.  J.  I.  Case  Threshing  Mach.  Co. 
v.  Meyers,  9:  970,  111  N.  W.  602,  78  Neb.  685. 

15.  A    promissory    note    signed    by    the 


BILLS  AND  NOTES,  I.  c. 


277 


maker  while  so  intoxicated  that  he  wag  in- 
capable of  knowing  or  understanding  the 
nature  or  quality  of  his  act,  which  is 
promptly  repudiated  by  him  after  he  re- 
covers his  senses  and  appreciates  what  has 
been  done,  is  Avoidable  in  the  hands  of  an 
indorsee  who  is  not  an  innocent  holder 
thereof.  Benton  v.  Sikyta,  24:  1057,  122  N. 
W.  61,  84  Neb.  808. 

36.  One  who  signs  a  note  when  so  intoxi- 
cated as  to  be  incapable  of  comprehending 
the  nature  of  his  act  is  not  prevented  from 
setting  up  his  intoxication  as  a  defense  to 
the  note,  on  the  ground  that  he  did  not  act 
with  ordinary  care.  Green  v.  Gunsten,  46: 
212,  142  N.  W.  261,  154  Wis.  69. 
Against  public  policy. 
Demurrer  to  evidence  in  action  on  illegal 
note,  see  Trial,  791. 

17.  A  note  payable  to  attorneys  of  the 
maker's  wife  in  consideration  of  her  pro- 
curing a  divorce  from  the  maker  within  a 
certain  time  is  void  as  against  public  policy. 
Pierce  v.  Cobb,  44:  379,  77  S.  E.  350,  161 
N.  C.  300.  (Annotated) 

18.  A  note  given  in  compromise  of  a  suit 
upon  a  non-negotiable  note  which  had  been 
executed  in  satisfaction  of  a  gambling  debt 
is  itself  unenforceable  in  court,  even  though 
the  original  suit  was  brought  by  an  assignee 
without  notice.  Union  Collection  Co.  v. 
Buekman,  9:  568,  88  Pac.  708,  150  Cal.  159. 

(Annotated) 

19.  A  promissory  note  given  in  con- 
sideration of  the  transfer  of  a  claim  against 
the  estate  of  an  insolvent  to  a  third  per- 
8011  in  furtherance  of  a  secret  arrangement 
by  which  the  creditor  was  to  obtain  a  pref- 
erence over  the  general  body  of  creditors  is 
void  as  having  been  given  in  furtherance 
of  a  fraudulent  and  corrupt  agreement. 
Brigham  v.  LaBanque  Jacques  Cartier,  2 
B.  k.  C.  449,  30  Can.  S.  C.  429. 

c.   Consideration. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of  recital  of  consideration  on  nego- 
tiability of  note,  see  infra,  47. 

Want  or  failure  of  consideration  as  de- 
fense, see  infra,  133-137,  146,  213-220. 

Illegal  consideration  as  defense,  see  infra, 
154-156,  221,  222. 

Consideration  of  contracts  generally,  see 
Contracts,  I.  c. 

Burden  of  proof  as  to,  see  Evidence,  588, 
589. 

Evidence  to  show,  see  Evidence,  990,  991, 
1248,  1935. 

Note  of  married  woman,  see  Husband  and 
Wife,  37,  42. 

Imputed  notice  of  lack  of  consideration, 
see  Notice,  49. 

Necessity  of  alleging  and  proving,  see 
Pleading,  244. 

See  also  infra,  122. 

20.  A  non-negotiable  instrument,  not 
under  seal,  and  containing  no  recital  of  a 
consideration,  does  not  import  a  considera* 
Digest  1-52  I..R.A.(N.S.) 


tion.    Joseph  v.  Catron,  i:  1120,  81  Pac.  439, 
13  N.  M.  202. 

21.  A  note  without  consideration,  paya- 
ble out  of  the  estate  of  the  maker  after  hia 
death,  is  void.  Sullivan  v.  Sullivan,  7:  156, 
92  S.  W.  966,  122  Ky.  707.  (Annotated) 

22.  A  note  given  by  a  woman  to  a  cred- 
itor of  her  husband,  whose  claim  lias  been 
discharged  in  banlcruptcy  proceedings,  not 
in  payment  of  the  debt,  but  rather  as  col- 
lateral security,  is  without  consideration 
and  unenforceable.  Widger  v.  Baxter, 
3:  436,  76  N.  E.  509,  190  Mass.  130. 

(Annotated) 

23.  The  securing  of  money  to  be  used  in 
the  promotion  of  one's  candidacy  for  public 
ofiice  is  a  sufficiently  valuable  consideration 
for  the  execution  of  a  promissory  note. 
Hale  v.  Harris,  5:  295,  91  S.  W.  660,  28  Ky. 
L.  Rep.  1172. 

24.  While  a  promissory  note  given  for 
the  purchase  price  of  property  does  not 
amount  to  a  payment  of  the  debt,  in  the 
absence  of  an  agreement  to  the  contrary, 
yet  the  contract  of  sale  constitutes  a  valua- 
ble consideration  for  the  note,  and  an  ac- 
tion may  be  maintained  thereon,  even  though 
the  property  has  never  been  delivered  and 
the  title  thereto  has  never  passed.  Acme 
Food  Co.  V.  Older,  17:  807,  61  S.  E.  235,  64 
W.  Va.  255.  (Annotated) 

25.  A  promise  to  make  the  estate  of  a 
deceased  person  no  trouble  in  the  matter  of 
attempting  to  enforce  claims  against  it, 
where  the  claims  are  barred  by  the  statute 
of  limitations  and  the  estate  of  the  de- 
ceased person  is  insolvent,  does  not  con- 
stitute a  sufficient  consideration  for  a  prom- 
issory note  given  by  the  heirs  of  the  de- 
ceased person.  Anderson  v.  Nystrom,  13: 
1 141,  114  N.  W.  742,  103  Minn.  168. 

26.  A  promise  to  lend  money  as  needed 
in  the  future  is  a  sufficient  consideration  for 
a  promissory  note  of  the  intending  bor- 
rower for  the  amount,  although  the  same 
is  never  in  fact  advanced.  Marling  v.  Fitz- 
gerald, 23:  177,  120  N.  W.  388,  138  Wis.  93. 

27.  Forbearance  by  a  bank  to  prosecute 
a  defaulting  officer,  or  prove  a  claim  against 
his  estate,  is  a  good  and  valid  consideration 
for  a  note  given  by  his  son  to  cover  tlie 
shortage.  Galena  Nat.  Bank  v.  Ripley,  265: 
993,  104  Pac.  807.  55  Wash.  615. 

28.  The  fact  that  bank  officers  desire  to 
adjust  a  defalcation  of  a  bank  employee 
before  the  arrival  of  the  bank  examiner 
does  not  of  itself  show  an  unlawful  and  in- 
valid consideration  for  a  note  given  to  cover 
the  shortage.  Galena  Nat.  Bank  v.  Ripley, 
26:  993,  104  Pac.  807,  55  Wash.  615. 

(Annotated) 

29.  An  oral  promise  to  pay  a  commis- 
sion to  a  broker  for  the  sale  of  real  estate 
constitutes  a  sufficient  consideration  to  sup- 
port a  promissory  note  given  in  payment  of 
such  commission,  although  such  promise,  so 
long  as  it  rests  in  parol,  is  unenforceable 
by  statute.  Mohr  v.  Rickgauer,  26:  533,  117 
N.  W.  950,  82  Neb.  398. 

30.  A  note  given  in  compromise  or  set- 
tlement of  disputed  claims  in  an  amount 
agreed  upon  between  the  maker  and  payee 


278 


BILLS  AND  NOTES,  I.  d,  1. 


as  owing  by  the  former  to  the  latter,  al- 
though including  therein  void  tax  certifi- 
cates held  by  the  payee  against  land  of  the 
maker,  is  not  void  for  failure  of  consider- 
ation in  whole  or  in  part  where  there  was 
no  fraud  or  mistake  in  computing  the 
amount  and  neither  party  at  the  time  of 
the  execution  of  the  note  was  aware  of  the 
invalidity  of  such  certificates  while  each 
had  the  same  means  of  ascertaining  the 
validity  thereof.  Armijo  v.  Henry,  25:  275, 
89  Pae.  305,  14  N.  M.  181,  (Annotated) 

31.  A  note  given  by  a  man  to  a  stran- 
ger in  blood,  who  entered  his  family  and 
lived  there  as  a  daughter,  having  all  the 
privileges  of  any  member  of  the  family, 
for  past  services,  which  were  rendered  with- 
out any  intention  on  her  part  of  charging 
for  them,  or  on  his  part  of  making  com- 
pensation for  them,  is  without  considera- 
tion, and  cannot  be  enforced  by  tlie  payee. 
Harper  v.  Davis,  35:  1026,  80  Atl.  1012,  115 
Md.  349. 

32.  A  promissory  note  given  by  a  son  to 
his  widowed  mother  for  money  paid  by  her 
for  his  board  while  at  college  and  his  college 
education,  after  such  expenditure,  witliout 
promise  or  expectation  of  repayment  on  the 
part  of  either  at  the  time  of  such  expendi- 
ture, wants  legal  consideration,  and  is  not 
enforceable.  Gooch  v.  Allen,  37:  930,  73 
S.  E.  56,  70  W.  Va.  38. 

Substituted   note;   extension. 
Sufficiency  of  consideration  for  renewal,  see 

Principal  and  Sueety,  48. 
See  also  supra,  18. 

33.  The  surrender  by  a  bank  of  paper 
which  it  holds  against  its  cashier,  in  ex- 
change for  that  of  a  stranger,  is  suflicient 
consideration  to  enabJe  it  to  enforce  the 
substituted  paper.  State  Bank  v.  Forsvth, 
28:  501,  108  Pac.  914,  41   Mont.  249. 

84.  Sufficient  consideration  for  a  promise 
to  pay  a  note  given  in  renewal  of  several, 
one  of  which  was  claimed  to  have  been 
forged,  exists  in  the  surrender  by  the  payee 
of  the  old  note  and  extension  of  the  tim-j 
for  payment.  First  State  Bank  v.  Williams, 
23:  1234,  121  N.  W.  702,  143  Iowa,  177. 

35.  An  oral  agreement  by  the  parties  to 
a  promissory  note,  the  one  to  keep  the 
amount  called  for  and  pay  interest  thereon 
for  a  specified  time  after  the  note  falls  due, 
and  the  other  to  permit  him  to  do  so,  con- 
stitutes a  valid  extension  for  the  time  speci- 
fied. Lahn  v.  Koep,  52:  327,  115  N.  W.  877, 
139  Iowa.  349.  (Annotated) 

36.  The  payment  after  the  maturity  of  a 
note,  of  a  part  of  the  interest  due  thereon, 
is  not  a  sufficient  consideration  for  a  con- 
tract extending  the  time  for  the  payment  of 
the  note,  so  as  to  justify  the  maker  thereof 
in  holding  personal  property  on  which  a 
chattel  mortgage  has  been  given  to  secure 
the  note.  Maker  v.  Taft,  52:  328,  139  Pac. 
970,  41  Okla.  663.  (Annotated) 
On  ratification  of  altered  note. 

37.  No  new  consideration  is  necessary  to 
validate  the  ratification  of  an  alteration  in 
a  promissory  note,  under  the  provisions  of 
the  negotiable  instruments  act  that,  where 
a  negotiable  instrument  is  materially 
Digest  1-52  Ii.B.A.(N.S.) 


altered  without  the  assent  of  all  parties 
liable  thereon,  it  is  avoided,  exce]>t  aa 
against  the  party  who  has  himself  made, 
authorized,  or  assented  to  the  alteration  and 
subsequent  indorsements.  Holyfield  v.  Har- 
rington, 39:  131,  115  Pac.  546,  84  Kan.  760. 

(Annotated) 

d.  Negotiability. 

1.  In  general. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Of  stock  certificate,  see  Corporations,  222. 
Of  receiver's  certificate,  see  Receivers,  37. 
Of  warehouse  receipt,  see  Waeehousemetn, 

11. 
Conflict    of    laws    as    to,    see    Conflict   of 

Laws,   19-21. 
Following  decisions  of  courts  of  other  state 

as  to,  see  Courts,  315. 
Parol  evidence  that  instrument  was  not  to 

be  negotiated,  see  Evidence,  985. 
Repeal  of  statute  as  to,  see  Statutes,  334. 

38.  As  defined  by  §§  4626  and  4627, 
Oklahoma  Comp.  Laws  1909,  a  "negotiable 
instrument"  is  a  written  promise  or  re- 
quest for  the  payment  of  a  certain  sum  of 
money  to  order  or  bearer,  and  must  be  made 
payable  in  money  only,  and  without  any 
condition  not  certain  of  fulfilment.  Far- 
mers' Loan  &  T.  Co.  v.  McCoy  &  Spivey 
Bros.  40:  177,  122  Pac.  125,  32  Okla.  277. 

39.  A  note  not  containing  the  words  "to 
order"  or  "bearer,"  or  their  equivalent,  is 
not  negotiable  under  the  provisions  of  the 
negotiable  instruments  law.  Wettlaufer  ▼. 
Baaxter.  26:  804,  125  S.  W.  74,  137  Ky.  362. 

40.  The  provision  of  the  negotiable  in- 
struments law  that  an  instrument  is  pay- 
able to  bearer  when  the  last  indorsement  is 
in  blank  does  not  convert  into  a  negotiable 
instrument  a  note  which  does  not  contain 
words  of  negotiability  on  its  face.  Wettlau- 
fer V.  Baxter,  26:804,  125  S.  W.  741,  137 
Ky.  362.  (Annotated) 

41.  A  note  which,  on  its  face,  is  sub- 
ject to  the  terms  of  a  contract  between 
maker  and  payee,  is  not  negotiable.  Klots 
Throwing  Co.  v.  Manufacturers'  Commercial 
Co.   30:  40,  179  Fed.  813,  103  C.  C.  A.  305. 

(Annotated) 

42.  The  negotiable  quality  of  a  promis- 
sory note  is  not  destroyed  by  a  provision 
therein  that  the  makers  and  indorsers  there- 
of severally  waive  presentment  of  payment 
and  notice  of  protest,  and  consent  that  the 
time  of  payment  may  be  extended  without 
notice,  when,  by  its  terms,  it  is  made  paya- 
ble on  or  before  a  day  named.  First  Nat. 
Bank  v.  Buttery,  16:878,  116  N.  W.  341, 
17  N.  D.  326.  (Annotated) 

43.  An  insertion  in  a  bill  of  exchange  of 
the  words  "on  account  of  contract"  between 
the  drawer  and  drawee,  does  not  amount  to 
a  direction  to  charge  a  particular  fund  so 
as  to  destroy  the  negotiability  of  the  in- 
strument, but  merely  indicates  the  fund  to 


BILLS  AND  NOTES,  I.  d,  2. 


279 


which  the  drawee  is  to  look  for  reimburse- 
ment. First  Nat.  Bank  v.  Liglitner,  8:  231, 
88  Pac.  59,  74  Kan.  736.  (Annotated) 

44.  Under  the  negotiable  instrument 
law,  a  note  containing  tlie  provision  that 
the  "payee's  ownership  of  the  goods  ac- 
count of  which  this  note  is  given,  the  ac- 
count thereof  and  the  contract  conditions 
of  original  sale  are  not  affected  by  accept- 
ing this  note  until  receipt  of  full  amount 
due  thereon,"  having  reserved  title  and 
right  to  possession  of  the  goods  in  ques- 
tion, is  non-negotiable.  Fleming  v.  Sher- 
wood, 43:  945,  139  N.  W.  101,  24  N.  D.  144. 

( Annotated) 

45.  The  provision  of  the  negotiable  in- 
struments law  that  a  qualilied  indorse- 
ment, which  is  defined  as  an  indorsement 
without  recourse,  or  words  of  similar  im- 
port, does  not  impair  the  negotiable  char- 
acter of  the  instrument,  does  not  apply  to 
an  indorsement  by  which  one  assigns  his 
interest  in  the  note.  Gale  v.  Mayhew, 
29:  648,  125  N.  W.  781,  161  Mich.  96. 

46.  A  recital  in  a  promissory  note  that 
it  is  secured  by  deed  of  trust  does  not 
destroy  its  negotiability,  so  as  to  charge 
a  purchaser  for  value,  before  maturity, 
with  notice  of  latent  defenses  which  the 
maker  may  have  against  the  payee.  ZoU- 
man  v.  Jackson  Trust  &  Sav.  Bank,  32: 
858,  87  N.  E.  297,  238  111.  290.  (Annotated) 
Recital  of  consideration. 

47.  A  recital  of  the  consideration  in  a 
note  otherwise  negotiable  in  form  does  not 
render  it  non-negotiable.  Dollar  Sav.  &  T. 
Co.  V,  Crawford,  33:  587,  70  S.  E.  1089,  69 
W.  Va.   109. 

Certainty  as   to  parties. 

48.  An  indorsement  making  a  note  pay- 
able in  the  alternative  to  one  or  the  other 
of  two  persons  named  does  not  destroy  its 
negotiability  under  the  negotiable  instru- 
ment act.  Page  v.  Ford,  45:  247,  131  Pac. 
1013,  65  Or.  450, 

Adding     Tvord     "trnstee"     to     payee's 
name. 

49.  The  use  of  the  word  "trustee"  fol- 
lowing the  name  of  the  payee  in  a  negotiable 
note  does  not  destroy  its  negotiability,  if 
the  trustee  has  the  right  to  sell  it  and  re- 
ceive the  proceeds;  its  only  effect  is  to  put 
the  purchaser  upon  notice  concerning  the 
trustee's  title  and  authority  in  respect  to 
the  note.  Dollar  Sav.  &  T.  Co.  v.  Crawford, 
33:  587,  70  S.  E.  1089,  69  W.  Va.  109. 

2.  Certainty  as  to  maturity  and  amount. 

(See   also   same   heading   in   Digest   L.B.A. 
1-70.) 

Certainty  as  to   maturity. 

50.  To  constitute  a  negotiable  instru- 
ment the  fact  of  the  maturity  of  the  in- 
strument at  some  time  must  be  morally 
certain.  Joseph  v.  Catron,  i:  1120,  81  Pac. 
439,  13  N.  M.  202.  (Annotated) 

51.  An  agreement  to  pay  a  specified 
amount  upon  the  confirmation  by  Congress 
of  a  specified  land  grant  is  not  negotiable, 
as  it  is  not  moral! v  certain  that  the  grant 
Digest   1-52  L.R.A.(N.S.) 


will  ever  be  confirmed.     Joseph  v.  Catron, 
i:  1120,  81  Pac.  439,  13  N.  M.  202. 

(Annotated) 

52.  That  a  land  grant  is,  as  a  matter  of 
fact,  confirmed  long  after  the  making  of  an 
instrument  agreeing  to  pay  a  specified 
amount  upon  the  confirmation  of  such  land 
grant,  does  not  make  the  instrument  nego- 
tiable, since  certainty  of  maturity  must  be 
of  the  date  of  the  instrument,  and  cannot 
derive  support  from  any  subsequent  event. 
Joseph  V.  Catron,  i:  1120,  81  Pac.  439,  13 
N.  M.  202. 

53.  A  provision  in  a  note  otherwise  nego- 
tiable by  which  the  maker  and  indorser 
each  make  the  other  an  agent  to  extend 
the  time  of  payment  of  the  note  renders 
the  instrument  non-negotiable.  Rossville 
State  Bank  v.  Heslet,  33:  738,  113  Pac. 
1052,  84  Kan.  315.  (Annotated) 

54.  The  negotiability  of  a  note  is  not 
destroyed  by  a  provision  that,  after  ma- 
turity, the  makers  or  either  of  them  may 
extend  the  note  from  time  to  time  without 
the  knowledge  or  consent  of  the  others,  and 
after  such  extension  the  liability  of  all  par- 
ties shall  remain  the  same  as  if  no  exten- 
sion had  been  made.  Navajo  County  Bank 
V.  Dolson,  41:  787,  126  Pac.  153,  163  Cal. 
485. 

55.  A  provision  in  a  note  payable  at  a 
time  certain,  giving  the  holder  the  option 
to  extend  the  payment  as  he  deems  proper 
in  case  the  note  is  not  paid  at  maturity, 
does  not  destroy  the  negotiability  of  the 
instrument.  Stitzel  v.  Miller,  34:  1004,  95 
N.  E.  53,  250  111.  72. 

56.  A  provision  in  a  note  payable  on  a 
specified  date  that  in  case  the  crop  on  cer- 
tain land  shall  be  under  a  specified  amount, 
the  note  shall  be  extended  one  year,  does  not 
render  it  non-negotiable  under  a  statute 
making  negotiable  instruments  payable  on 
or  before  a  fixed  or  determinable  future  time 
specified  therein.  State  Bank  v.  Bilstad, 
49:  132,  136  N.  W.  204,  62  Iowa,  433. 

(Annotated) 

57.  An  instrument  promising  to  pay  a 
certain  sum  a  certain  time  after  the  maker 
becomes  possessed  of  real  property,  which 
has  been  deeded  to  him  with  reservation  of 
a  life  estate  to  the  grantor,  is  negotiable. 
McClenathan  v.  Davis,  27:  1017,  90  N.  E. 
265,  243  111.  87.  (Annotated) 

58.  An  order  drawn  upon  a  person  fay 
whom  it  is  accepted,  directing  payment  of 
a  stated  sum  to  a  certain  bank,  without 
specifying  any  time  therefor,  "on  account 
of  contract"  between  the  drawer  and  the 
acceptor,  is  a  negotiable  bill  of  exchange 
payable  absolutely  on  demand.  First  Nat. 
Bank  v.  Lightner,"8:  231,  88  Pac.  59,  74  Kan. 
736. 

59.  A  note  requiring  the  maker  to  fur- 
nish additional  collateral  upon  demand  or 
the  note  will  mature  at  once  is  non-ne- 
gotiable because  the  due  date  is  uncertain, 
under  a  statute  making  non-negotiable  a 
note  containing  a  promise  to  do  any  act 
in  addition  to  payment  of  money.  Holla- 
dav  State  Bank  v.  Hoffman,  35:  390,  116 
Pac.  239,  85  Kan.  71.  (Annotated) 


230 


BILLS  AND  NOTES,  II.,  III.  a. 


60.  A  note  otherwise  negotiable  in  form, 
given  prior  to  the  enactment  of  the  nego- 
tiable instrument  law,  is  rendered  non- 
negotiable  by  a  provision  therein  that,  if 
any  instalment  of  interest  be  not  paid  at 
maturity,  the  principal  note  and  all  inter- 
est due  thereon  shall  become  due  and  pay- 
able at  once  without  notice,  at  the  option 
of  the  holder  of  the  note,  and  the  further 
provision  that  partial  payment  of  any 
amount  not  exceeding  one  fifth  of  the  prin- 
cipal in  any  one  year  will  be  received,  and 
the  interest  rebated  from  the  date  of  such 
payment.  Bell  v.  Riggs,  41:  iiii,  127  Pac. 
427,  34  Okla.  834. 

Certainty  as  to  amount  generally. 
See  also  supra,  60. 

61.  The  insertion  in  a  mortgage  given 
to  secure  a  note,  bpth  instruments  being 
executed  at  the  same  time  as  part  of  the 
same  transaction  of  a  provision  that  the 
mortgagor  shall  pay  all  taxes  assessed 
against  the  note  or  mortgage,  does  not, 
where  the  note  does  not  incorporate  the 
provisions  of  the  mortgage,  render  the  note 
non-negotiable  as  creating  an  uncertainty 
in  the  amount  due,  since  the  instruments 
are  not  to  be  construed  together  as  form- 
ing only  one  contract.  Page  v.  Ford,  45: 
247,  131  Pac.  1013,  65  Or.  450. 
Provision  for  attorney's  fees. 
Repeal  of  statute  as  to  effect  of  provision 

for  attorney's  fees  on  negotiability,  see 
Statutes,  334. 

62.  A  provision,  in  a  mortgage  securing 
a  contemporaneous  note,  for  attorneys'  fees 
in  the  event  of  foreclosure,  is  not  made  a 
part  of  the  note,  so  as  to  destroy  its  nego- 
tiability, by  a  statute  providing  that  when 
several  contracts  relate  to  the  same  matters 
between  the  parties,  and  are  made  as  parts 
of  substantially  one  transaction,  tjiey  are 
to  be  taken  together,  as  such  statute  con- 
stitutes a  rule  of  interpretation  merely; 
and  the  mortgage  and  note  therefore  remain 
separate  contracts  except  for  purposes  of 
interpretation.  Farmers'  Nat.  Bank  v.  Mc- 
Call,  26:  217,  106  Pac.  866,  25  Okla.  600. 

63.  A  provision,  in  a  mortgage  securing 
a  promissory  note,  for  attorneys'  fees  in  the 
event  of  foreclosure,  does  not  render  the 
note  non-negotiable, — at  least  where  the  pro- 
visions of  the  mortgage  are  not,  by  direct 
stipulation  in  the  note,  made  a  part  there- 
of. Farmers'  Nat.  Bank  v.  McCall,  26:217, 
106  Pac.  866,  25  Okla.  600. 

(Annotated) 
Provision  for  disconnt. 

64.  A  note  payable  in  instalments  three 
months  apart,  which  contains  a  stipulation 
that,  if  it  is  paid  within  fifteen  days  from 
date,  a  discount  of  5  per  cent  will  be  al- 
lowed, being  uncertain  as  to  the  amount 
necessary  to  satisfy  it  at  the  time  of  its 
execution,  is  non-negotiable.  Farmers'  Loan 
&,  T.  Co.  V.  McCoy  &  Spivey  Bros.  40:  177, 
122  Pac.  125.  32  Okla.  277.  (Annotated) 
Digest   1-52  I<.R.A.(N.S.) 


//.  Acceptance. 

(See  also  same  heading  in  Digest  L.RJL. 
1-10.) 

Acceptance  of   check,   see  Banks,    106. 
See  also  supra,  6. 

Implied  acceptance. 

65.  Delivering  a  check  to  a  notary  for 
protest  does  not,  where  by  statute  protest  is 
not  necessary,  fulfil  the  duty  of  the  drawee 
so  as  to  relieve  it  from  the  operation  of  the 
section  of  the  negotiable  instruments  law 
that,  where  the  drawee  refuses  to  return 
the  bill  within  twenty-four  hours,  he  will 
be  deemed  to  have  accepted  it.  Wisner  v. 
First  Nat.  Bank,  17:  1266,  68  At).  955, 
220  Pa.  21.  (Annotated) 

66.  A  tortious  refusal  to  return  a  check, 
on  the  part  of  the  drawee,  to  the  holder  or 
collecting  hank,  is  not  necessary  to  render 
the  drawee  liable  thereon  under  the  provi- 
sions of  the  negotiable  instruments  law  that, 
where  the  drawee  refuses  to  return  the  bill 
within  twenty-four  hours,  he  will  be  deemed 
to  have  accepted  it;  but  mere  passive  neg- 
lect to  return  is  sufficient.  Wisner  v.  First 
Nat.  Bank,  17:  1266,  68  Atl.  955,  220  Pa.  21. 
Conditional   acceptance. 

67.  A  telegram  in  response  to  a  request 
to  accept  an  unconditional  draft,  that  the 
drawee  will  pay  the  specified  draft  for  a 
specified  amount  "for  horses,"  is  an  uncon- 
ditional acceptance,  and  the  drawee  cannot 
avoid  liability  although  the  proceeds  are 
not  expended  for  horses.  State  Bank  v. 
Bradstreet,  38:  747,  130  N.  W.  1038,  89  Neb. 
186.  (Annotated) 

m.  Indorsement  and  transfers. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A . 
1-70.) 

Effect  of  blank  indorsement  to  make  non- 
negotiable  instrument  negotiable,  see 
supra,  40. 

For  rights  of  indorsees,  see  infra,  V. 

Preferences  to  indorser,  see  Bankbuptct, 
65. 

Authority  of  bank  president  to  indorse 
notes,  see  Banks,  21. 

Acceptance  by  bank  cashier  of  qualified  in- 
dorsement on  note,  see  Banks,  23. 

Implied  contract  by  maker  to  reimburse  ac- 
commodation indorser,  see  Contbacts, 
9. 

Transfer  of  note  given  to  compound  felony, 
see  CoNTEACTS,  618. 

Power  of  corporation  to  lend  its  credit  by 
accommodation    indorsement,    see   Cob- 

POKATIONS,   73. 

Power  of  corporate  officer  or  agent  as  to, 
see  CoBPORATiONS,  135-1S7,  142. 

Presumption  as  to  indorsement,  see  Evi- 
dence, 315. 

Parol  evidence  as  to,  see  Evtoence,  992- 
1000. 


BILLS  AND  NOTES,  III.  b,  1. 


SSI 


Effect  of  acknowledgment  to  payee  after  as- 
signment as  tollinfr  statute  of  limita- 
tions, see  Limitation  of  Actions,  351. 

Agent's  authority  as  to,  see  Principal  and 
Agent,  55,  58. 

What  constitutes  a  sale  of  note,  see  Sale, 
1. 

Subrogation  of  indorsers  of  note  given  to 
pay  judgment,  to  judgment,  see  Sub- 
rogation, 36. 

Creation  of  trust  by  indorsement,  see 
Trusts,  35. 

Indorsement  of  note  as  will,  see  Wiixs,  12. 

68.  Title  to  a  non-negotiable  note  may 
be  transferred  by  indorsement  and  delivery, 
but  the  assignee  acquires  the  instrument 
subject  to  the  law  applicable  to  non-nego- 
tiable paper.  Wettlaufer  v.  Baxter,  26: 
804,  125  S.  W.  741,  137  Ky.  362. 

60.  One  who  pays  the  note  of  another  by 
mistake,  taking  a  surrender  thereof  from 
one  having  possession  of  it  merely  for  col- 
lection, cannot,  upon  discovering  the  mis- 
take, obtain  title  to  it  by  procuring  it  to 
be  indorsed  by  the  collecting  agent.  Char- 
nock  V.  -Jones,  16:233,  115  N.  W.  1072,  22 
S.  D.  132. 

70.  Tlie  indorsement  and  transfer  of  a 
note  void  because  issued  by  a  municipal  cor- 
poration for  bo.  owed  money  is  not  suf- 
ficient to  give  :t  validity.  Luther  v. 
Wheeler,  4:  746,  52  S.  E.  874.  73  S.  C.  83. 

71.  An  indorsement  on  the  back  of  a 
non-negotiable'  promissory  note,  which  reads: 
"For  v"lue  received  I  hereby  guarantee  the 
payment  of  the  within  note  at  maturity, 
or  at  any  time  thereafter,  with  interest  at 

the  rate  of per  cent  per  annum  until 

paid.  Waiving  demand,  notice  of  non- 
payment, and  protest,  as  collateral," — 
signed  by  the  payee,  is  sufficient  to  pass  the 
title  to  the  paper.  McNary  v.  Farmers' 
Nat.  Bank,  41:  1009,  124  Pac.  286,  33  Okla. 
1.  (Annotated) 

RigHts     of    accommodation     indorser 

paying  note. 
Right  to  benefit  of  provision  for  attorneys' 
fees,  see  Attorneys'  Fees,  3. 

72.  One  who,  after  the  note  of  a  corpora- 
tion has  been  signed  by  stockholders  as 
accommodation  makers,  places  his  guaranty 
on  the  back,  may,  under  the  negotiable  in- 
strument act.  recover  from  such  accommo- 
dation makers  in  case  he  is  compelled  to 
pay  the  note.  Noble  v.  Beeman-Spaulding- 
Woodward  Co.  46:  162,  131  Pac.  1006,  65 
Or.  95. 

73.  A  guarantor  of  a  corporation  note 
cannot,  before  he  pays  anything  on  his  guar- 
anty, agree  to  an  assignment  by  the  cor- 
poration for  creditors  which  will  release  the 
obligation  to  him  of  an  accommodation 
maker.  Noble  v.  Beeman-Spaulding-Wood- 
ward  Co.  46:  162,  131  Pac  1006,  65  Or.  95. 
Warranty  of  genuineness  of  prior  sig- 
natures. 

Presumption  of  drawee's  knowledge  of 
drawer's  signature,  see  Banks,  121, 
122. 

By  bank  receiving  note  for  collection,  see 
Banks,   157. 

Digest  1-52  L.R.A.(N.S.) 


74.  One  who  in  good  faith  has  pur- 
chased from  the  payee,  who  indorsed 
generally,  a  draft  to  which  the  drawer's 
name  has  been  forged,  does  not,  by  indorse- 
ment to  the  drawee,  warrant  the  genuine- 
ness of  the  drawer's  signature.  State  Bank 
V.  First  Nat.  Bunk,  29:  100,  127  N.  W.  244, 
87  Neb.  351. 

Forged   indorsement. 
Forged   indorsement   of   check,   see   Banks, 
IV.  a,  3,  b,  3. 

75.  The  payment  by  the  drawee  of  a 
draft  with  bill  of  lading  attached,  drawn 
payable  to  the  order  of  a  bank,  upon  a 
forged  indorsement,  does  not  satisfy  the 
account.  O.  J.  Lewis  Mercantile  Co.  v. 
Harris,  37:  544,  140  S.  W.  981,  101  Ark.  4. 

6.  Liability  of  indorser. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of  indorsement  to  render  note  non- 
negotiable,  see  supra,  48. 

Rights  of  transferee  against  indorser,  see 
infra,  V. 

Raising  defense  to  for  first  time  on  appeal, 
see  Appeal  and  Error,  748. 

Coramon  counts  in  action  against  indorser, 
see  Assumpsit,  6. 

Effect  of  unrestricted  indorsement  by  bank, 
of  note  received  for  collection,  see 
Banks,   157. 

Liability  of  one  assuming  debts  of  bank  to 
meet  its  obligation  as  indorser  of  note, 
see  Contracts,  372. 

Estoppel  of  indorser  to  contend  that  pre- 
sentment to  maker  was  insufficient,  see 
Estoppel,   126. 

Estoppel  of  bank  to  deny  liability  as  in- 
dorser, see  Estoppel,  184. 

Parol  evidence  as  to,  see  Evidence,  993- 
1000. 

Evidence  on  question  of  fraud  in  recur ing 
indorsement,  see  Evidence,  1885. 

Liability  of  guarantor,  see  Guaranty. 

Indorsement  by  married  woman,  see  Hus- 
band AND  Wife,  36. 

76.  One  who  indorses  in  blank  a  check 
payable  in  another  city,  and  deposits  it  with 
a  bank,  to  be  credited  to  the'  d^  lositor,  in 
the  absence  of  a  controlling  statute  or 
agreement,  engages  only  that  if  the  check 
shall  not  be  paid  on  due  presentation,  he 
will  pay  the  amount  to  the  holder  thereof. 
Brown  v.  People's  Bank,  52:  608,  52  So. 
719,  59  Fla.  163. 

77.  An  indorser  without  qualification  ol 
a  note  engages  that  on  due  presentment  it 
shall  be  paid  according  to  its  tenor,  and 
that,  if  it  be  dishonored,  the  necessary  pro- 
ceedings on  dishonor  being  duly  taken,  he 
will  pay  the  amount  thereof  to  the  liolder. 
Worley  v.  Johnson,  33:  639,  53  So.  543,  G<t 
Fla.  294. 

78.  The  assignor  of  a  non-negotiable  note 
is  not  liable  thereon,  unless  the  makei 
has  been   prosecuted   with   due  diligence  to 


282 


BILLS  AND  NOTES,  IIL  b,  2,  3. 


insolvency.     Wettlaufer   v.   Baxter,  26:804, 
125  S.  W.  741,  137  Ky.  362. 

79.  The  signing  of  a  note  as  surety,  some 
days  after  the  principal  had  executed  the 
same,  and  after  the  delivery  and  acceptance 
thereof,  and  after  the  consideration  had 
passed,  without  any  agreement  that  the 
surety's  name  would  be  secured  to  the  note, 
is  without  consideration.  Bank  of  Carroll- 
ton  V.  Latting,  44:  481,  130  Pac.  144,  37 
Okla.  8. 

80.  No  liability  attaches  to  one  whose  in- 
dorsement is  secured  upon  a  note  by  the 
trick  of  inducing  him  to  sign  his  name  to 
a  paper  placed  upon  the  note  in  such  a 
way  that  the  ink  penetrates  through  to 
the  note  without  his  knowledge  and  in- 
tent. Yakima  Valley  Bank  v.  McAllister, 
i:  1075,  79  Pac.  1119,  37  Wash.  566. 

(Annotated) 

81.  Satisfaction  of  a  note  is  not  effected 
in  favor  of  the  indorsers  by  the  acceptance 
by  the  payee  from  the  insolvent  maker  of 
the  amount  due  at  a  time  when,  under  the 
contract,  the  maker  had  a  right  to  make  the 
payment,  if,  under  bankruptcy  proceedings 
subsequently  instituted,  the  payee  is  obliged 
to  refund  the  money.  Second  Nat.  Bank  v. 
Prevvett,  9:  581,  96  S.  VV.  334,  117  Tenn.  1. 

(Annotated) 

82.  The  indorsement  upon  a  note  by  the 
payee,  of  a  statement  that  he  acknowledges 
himself  a  part  maker  of  the  note  with  one 
of  the  parties  whose  names  are  signed  to 
the  note,  is  not  sufficient  to  render  him  a 
joint  maker.  Kistner  v.  Peters,  7:  400,  79 
N.  E.  311,  223  111.  607.  (Annotated) 

88.  The  acknowledgment  of  liability  as 
maker  over  the  indorsement  of  a  note  by  the 
payee  may  be  stricken  out  as  surplusage, 
and  the  indorsement  treated  by  a  trans- 
feree as  a  blank  assignment,  over  which 
may  be  written  any  words  consistent  with 
the  contract  of  indorsement.  Kistner  v. 
Peters,  7:  400,  79  N.  E.  311,  223  111.  607. 

84.  The  payee  in  a  negotiable  note  in- 
dorsed by  others,  but  who  has  not  himself 
indorsed  it,  may  treat  them  all  as  joint 
makers,  or  as  indorsers  or  guarantors,  at  his 
election,  unless  he  agrees,  before  or  on  the 
deliverv  of  the  paper,  to  treat  them  in  one 
of  those  characters.  Peters  v.  Nolan  Coal 
Co.  9:  989,  56  S.  E.  735,  61  W.  Va.  392. 

85.  The  right  of  a  payee  to  treat  irregu- 
lar indorsers  of  a  note  as  joint  makers,  or 
as  indorsers  or  guarantors,  is  determined  by 
the  contract  made  before  or  at  the  time  of 
the  making  and  delivery  of  the  note  to  the 
payee,  unaflFected  by  the  subsequent  dealings 
of  the  payee  with  the  instrument;  and  such 
right  extends  to  renewals  of  the  note  by  the 
same  parties,  unless  a  new  contract  is  shown. 
Peters  v.  Nolan  Coal  Co.  9:  989,  56  S.  E. 
735,  61  W.  Va.  392. 

Contribntion   betiireen   indorsers. 

86.  The  one  whose  name  stands  first 
among  those  of  several  persons  who  place 
their  names  on  the  back  of  a  note  before 
delivery  cannot,  upon  paying  the  note,  com- 
pel the  others  to  contribute  towards  the 
amount  paid,  in  the  absence  of  any  express 
agreement  that  they  shoiiKl  be  equally 
Digest  1-52  I..R.A.(N.S.) 


bound.     Porter  v.  Huie,  28:  1039,  126  8.  W. 
1069,  94  Ark.  333. 
Acconunodation    indorsers. 

Rights  of  transferee  of  accommodation  pa- 
per,  see   infra,   143,    144,    186,   187. 

Preference  by  bankrupt  to  accommodation 
indorser,  see  BANKBUPXcy,  65. 

See  also  infra,  107. 

87.  The  payee  of  a  note  cannot  enforce 
payment  of  it  against  one  who,  without  the 
knowledge  of  the  maker,  signs  it  to  assist 
him  in  discounting  it  at  the  bank,  if  it  is 
never  discounted,  but  the  payee  is  merely 
seeking  to  enforce  the  original  obliiration. 
Cowan  V.  Hudson,  45:  720,  62  Co.  275,  105 
Miss.  507. 

2.   Indorsement  at  or   before   delivery. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

See  also  supra,  86;  infra,  99,  106. 

88.  An  agreement  to  indorse  a  note  be- 
fore delivery,  to  induce  the  payee  to  lend 
money  on  it,  is  in  effect  an  agreement  to 
become  a  joint  maker.  Lake  v.  Little  Rock 
Trust  Co.  3:  1 199,  90  S.  W.  847,  77  Ark.  53. 

89.  That  the  payee  of  a  note  requires  the 
names  of  good  indorsers  on  it  before  he  will 
accept  it  does  not  make  them  liable  as 
makers.  Deahy  v.  Choquet,  14:  847,  67  Atl. 
421,  28  R.  I.  338. 

90.  Sureties  who  place  their  names  on 
the  face  of  a  note  as  makers  are  primarily 
liable  to  a  holder,  notwithstanding  any  ir- 
regularity in  the  indorsements.  Johnston  v. 
Schnabaum,  17:  838,  109  S.  W.  1163,  86  Ark. 
82. 

91.  A  member  of  a  partnership  placing 
his  name  on  the  back  of  firm  paper  before 
deliyery  is  "a  person  not  otherwise  x  party" 
to  the  instrument,  within  the  meaning  of 
the  provision  in  the  negotiable  instruments 
act  that  where  a  person  not  otherwise  a 
party  to  an  instrument  places  thereon  his 
signature  in  blank  before  delivery,  he  is 
liable  as  an  indorser,  and  the  claim  thereon 
may  be  proved  against  his  individual  estate. 
Fourth  Nat.  Bank  v.  Mead,  52:  225,  104  N.' 
E.  377,  216  Mass.  521.  (Annotated) 

5.   Restrictive   indorsements. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Effect  of,  on  negotiability,  see  supra,  45. 

Effect  of  restrictive  indorsement  as  against 
transferee,  see  infra,  180-182. 

Indorsement  for  collection,  see  Banks,  157, 
160-165. 

Parol  evidence  to  show  to  which  indorse- 
ment qualifying  words  belong,  see  Evi- 
dence, 999. 

92.  'the  words,  "without  recourse,"  are 
added  to  the  indorsement  of  a  note  to  trans- 
fer title  to  it  without  personal  liability^ on 
the  part  of  the  indorser.  Goolrick  v.  Wal- 
lace, 49:  789,  157  S.  W.  920,  164  Ky.  596.  ^ 


BILLS  AND  NOTES,  III.  c— IV.  a. 


283 


o.    Discharge   of  indorser. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Matters  as  to  presentment  and  .notice  of 
nonpayment  to  hold  indorser,  see  infra, 
IV. 

Rights  of  transferee  against,  see  infra,  V. 

Discharge  of  guarantor,  see  Guaranty,  II. 

Release  of  surety,  see  Principal  and  Sure- 
ty, I.  b. 

See  also  infra,  199. 

93.  An  agreement  not  to  press  a  suit 
against  the  maker  of  a  promissory  note  in 
consideration  of  an  unrlortaking  of  third 
persons  to  pay  monthly  upon  the  debt  a  cer- 
tain amount  which  would  become  due  from 
them  to  the  maker  is  a  postponement  of  the 
holder's  right  to  enforce  the  instrument, 
within  the  meaning  of  the  section  of  the 
negotiable  instrument-,  law  that  a  person 
secondarily  liable  upon  the  note  will  be 
discharged  by  an  agreement,  binding  upon 
the  holder,  to  postpone  his  right  to  enforce 
the  instrument.  Deahj'  v.  Choquet.  14:  847, 
67  Atl.  421,  28  R.  I.  338. 

94.  The  holder  does  not  release  the  in- 
dorser of  a  promissory  note  by  losing  the 
note  so  that  it  cannot  be  surrendered  to  the 
maker  at  maturity,  and  failing  to  give  a 
bond  of  indemnity,  until  collection,  which 
might  otherwise  have  been  effected,  is  pre- 
vented by  insolvency.  Rogers  v.  Detroit 
Sav.  Bank,  18:  530,  110  N.  W.  74,  146  Mich. 
639.  (Annotated) 

95.  The  payee  of  a  note,  who  fails  to  pre- 
sent the  claim  against  the  bankruptcy  estate 
of  the  maker,  releases  the  indorsers  to  the 
extent  of  the  recovery  which  might  have  been 
secured  from  the  estate.  Second  Nat.  Bank 
V.  Prewett,  9:  581,  96  S.  W.  334,  117  Tenn.  1. 

d.  Transfers  without  indorsement. 

96.  A  bank  which  takes  without  indorse- 
ment, from  its  cashier,  negotiable  paper 
indorsed  to  him  without  designation  of  his 
fiscal  position,  holds  it  subject  to  all  equi- 
ties existing  in  favor  of  the  maker.  First 
N-it.  Bank  v.  McCullough,  17:  1105,  93  Pac. 
366,  50  Or.  508.  (Annotated) 

97.  The  equitable  owner  of  a  note  with- 
out indorsement  may  recover  the  amount 
due  thereon,  subject  to  any  defense  which 
the  maker  had  against  the  original  payee. 
Johnson  County  Sav.  Bank  v.  Scoggin  Drug 
Co.  50:  581,  67  S.  E.  253,  152  N.  C.  142. 

IT.  Presentment;  dem,and;  notice; 
protest. 

a.  In  general;  necessity. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Complaining  for  first  time  on  appeal  of  fail- 
ure to  prove  presentment  and  notice, 
see  Appeal  and  Error,  772. 

Digest   1-52  r..R.A.(N.S.) 


Conflict   of   laws    as    to,    see    Conflict    of 

Laws,  22-26. 
Correctness  of  instruction  as  to,  see  Trial, 

1018. 
See  also  supra,  65. 

98.  Notice  of  dishonor,  unless  dispensed 
with  or  excused,  must  be  given  to  an  in- 
dorser, or  he  is  discharged,  unless  the  notice 
is  expressly  or  impliedly  waived.  Worley  v. 
Johnson,   33:  639,  53   So.   543,   60   Fla.  294. 

99.  Persons  who  place  tlieir  names  on  the 
back  of  a  note  before  its  delivery  are 
indorsers,  entitled  to  notice  of  dishonor,  un- 
der the  section  of  the  negotiable  instru- 
ments law  providing  that  the  person  pri- 
marily liable  on  a  note  is  one  who,  by  Its 
terms,  is  absolutely  required  to  pay  the 
same,  all  others  being  secondarily  liable; 
and  that  a  person  who  places  his  signature 
on  a  note  otherwise  than  as  maker  is  deemed 
an  indorser.  Deahy  v.  Choquet,  14:  847,  67 
Atl.    421,   28   R.   I.   338.  (Annotated) 

100.  The  indirect  pecuniary  interest  in  a 
note,  of  a  notary  public  who  is  a  stock- 
holder of  the  bank  discounting  it,  does  not 
render  him  incompetent  to  protest  it  for 
nonpayment.  Patton  v.  Bank  of  La  Fay- 
ette, 5:  592,  53  S.  E.  664,  124  Ga.  965. 

101.  A  third  person  who  places  his  name 
on  the  back  of  a  promissory  note  by  blank 
indorsement  is  an  indorser  of  the  paper  by 
force  of  Ohio  Rev.  Stat.  1906,  §§  3171, 
3i73h,  3173i,  3173k,  3173q,  3174g,  and 
3178a,  and  as  such  is  entitled,  in  order  to 
render  him  liable,  to  notice  of  demand  upon 
those  who  are  primarily  liable;  and,  failing 
such  demand  and  due  notice  to  hira,  he  is 
discharged.  Rockfield  v.  First  Nat.  Bank, 
14:  842,  83  N.  E.  392,  77  Ohio  St.  311. 
Effect  of  insolvency. 

102.  The  makers  and  indorsers  of  a  draft 
are  released  by  failure  to  give  them  notice 
of  its  dishonor,  although  before  its  maturity 
all  parties  to  the  paper  have  become  insol- 
vent. Cook  v.  American  Tubing  &  Webbing 
Co.  9:  193,  65  Atl.  641,  28  R.  I.  41. 
■Waiver. 

Presumption  of,  see  Evidence,  582. 
Sufficiency  of  allegations  as  to,  see  Plead- 
ing, 480. 

103.  Presentment  for  payment,  unless  dis- 
pensed with  or  excused,  is  necessary  in  or- 
der to  charge  an  indorser;  but  presentment 
may  be  expressly  or  impliedly  waived. 
Worley  v.  Johnson,  33:  639,  53  So.  543,  60 
Fla.   294. 

104.  Presentment  and  notice  is  not  waived 
by  the  indorser  by  stating,  upon  being  in- 
formed that  the  maker  would  not  pay  the 
note,  that  he  was  liable  thereon,  and,  if 
the  holder  would  sue  the  maker  and  should 
fail  to  recover  from  him,  he  would  pay  it. 
Worley  v.  Johnson,  33:  639,  53  So.  543,  60 
Fla.   294. 

105.  Where,  before  the  maturity  of  a 
negotiable  promissory  note,  an  indorser 
thereof  by  unequivocal  words  or  acts  shows 
that  he  regards  his  liability  as  indorser  to 
be  absolute,  and  not  to  be  dependent  upon 
proper  presentment  for  payment  and  notice 
to  him  of  the  dishonor  of  the  note,  or  where 


884 


BILLS  AND  NOTES,  IV.  b— V.  a,  1. 


the  indorser  by  unequivocal  words  or  acts 
fairly  warrants  the  liolder  of  the  note  to 
conclude  that  the  indorser  intended  to  as- 
sume an  absolute  liability,  or  misleads  the 
holder  and  induces  him  to  dispense  with  the 
presentment  for  payment  and  notice  of  dis- 
honor required  by  law  to  fix  the  liability 
of  an  indorser,  the  indorser  may  be  regarded 
as  having  waived  his  right  under  tlie  law 
to  have  due  presentment  made  and  notice 
of  dishonor  given  to  him.  Worley  v.  John- 
son,  33:  639,   53  So.   543,   60   Fla!!  294. 

(Annotated) 

106.  A  statement  by  the  indorsers  of  a 
promissory  note  to  the  holder  before  ma- 
turity, that  he  need  not  put  the  note  in  the 
bank;  that,  so  long  as  he  keeps  the  note,  it 
is  all  right, — is  a  waiver  of  presentment  and 
notice.  Deahy  v.  Choquet,  14:  847,  67  Ati. 
421,  28  R.  I.   338. 

107.  A  waiver  by  an  accommodation  in- 
dorser of  demand  and  notice  of  protest 
eighteen  months  after  maturity  of  the  note, 
with  full  knowledge  that  demand  had  not 
been  made  or  notice  of  protest  given,  is 
binding  on  him,  although  not  based  on  a 
new  consideration.  Burgettstown  Nat.  Bank 
V.  Nill,  3:  1079,  63  Atl.  186,  213  Pa.  450. 

(Annotated) 

108.  A  waiver  of  presentment  and  notice 
of  protest  of  a  promissory  note  is  effected 
under  the  negotiable  instruments  law,  which 

Erovides  that  presentment  for  payment  may 
e  dispensed  with  by  waiver,  express  or  im- 
plied, where  the  indorsers  of  a  corporation 
note  are  directors  of  the  corporation,  who 
had  knowledge  at  the  maturity  of  the  note 
that  there  were  no  funds  with  which  to  pay 
it,  and  informed  the  holder  of  that  fact. 
Bessenger  v.  Wenzel,  27:  516,  125  N.  W.  750, 
161  Mich.  61.  (Annotated) 

b.   Sufficiency. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Mode  of  presenting  check,  see  Checks,  20, 
21. 

Estoppel  to  set  up  InsuflBciency  of  present- 
ment, see  Estoppel,  126. 

Demand  by   telephone. 

109.  A  demand  by  telephone  of  the  maker 
for  payment  of  a  note  which  is  payable  at 
the  maker's  residence  is  not  a  sufficient 
presentment  to  charge  the  indorser  thereon, 
although  the  one  making  the  demand  has 
the  instrument  in  his  possession  at  the  time 
the  demand  is  made.  Gilpin  v.  Savage, 
34:  417,  94  N.  E.  656,  201  N.  Y.  167. 

(Annotated) 
Tinie  generally. 

Effect  of  delay  in  presenting  check,  see 
Checks,  21-26. 

110.  The  qualifi-cation  of  the  general  two- 
day  rule  allowed  for  forwarding  pajjer  for 
presentment  is  that,  if  tliere  would  be  more 
than  one  mail  on  the  second  day,  it  need 
not  go  by  the  first,  but.  if  there  be  but 
one,  it  must  go  by  it,  unless  it  leave  or 
close  at  an  unreasonably  early  hour.  The 
Digest  1-52  I..R.A.(N.S.) 


whole  of  the  second  day  is  not  allowed, 
unless  the  last  mail  of  that  day  goes  at 
the  close  of  the  business.  Pinkney  v. 
Kanawha  Valley  Bank,  32:  987,  69  S.  E. 
1012,  68  W.  Va.  254. 

c.  Notice  of  protest;  certificate. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Of  nonpayment  of  check,  see  Checks,  29. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  22-26. 

Certificate  of  protest  as  prima  facie  evi- 
dence of  facts  recited,  see  Evidence, 
2264. 

See  also  supra,  101. 

d.  Damages  for  nonacreptance,  non- 
payment, and  p.  otest. 

111.  Causing  a  check  to  be  protested  and 
notice  to  be  given  to  the  drawer  and  in- 
dorsers without  proper  presentation  for 
payment,  according  to  its  terms,  renders 
the  holder  liable  to  the  drawer  for  tlie  re- 
sulting damages.  Farmers'  Bank  v.  Jolm- 
son.  King,  &  Co.  30:  697,  68  S.  E.  85,  134 
Ga.  486. 

112.  The  indorsement  on  a  check  naade 
payable  through  a  named  bank,  when  pre- 
sented directly  by  a  third  bank,  and  not 
through  the  named  bank,  of  a  statement 
that  it  would  be  paid  when  presented 
through  the  bank  through  which  it  was 
made  payable,  does  not  authorize  the  pre- 
senting bank  to  have  the  check  protested. 
Farmers'  Bank  v.  Johnson,  King,  &  Co. 
30:  697,  68  S.  E.  85,  134  Ga.  486. 

V.  Rights  and  liahilities  of  transferees. 

a.  Extent  of  rights  and  protection 
generally. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Draft  with  bill  of  lading  attached,  see  Bills 

OF  Lading. 
Estoppel  to  set  up  defense  as  against,  see 

Estoppel,  168,  169,  184,  188,  191. 
Of    note   secured    by   mortgage,    see   Mobt- 

GAGE,   59,    60. 
Right  of  assignee  to  sue  on  note,  see  Pab- 

TIES,  99,    100. 
Set-off  as   against  transferee,   see   Set-Off 

AND   COUNTEBCLAIM,   28, 

113.  The  rights  of  a  bona  fide  assignee  of 
a  note  which  recites  the  consideration  there- 
for, in  due  course,  are  not  affected  by  the 
equities  of  the  n-.aker.  Dollar  Sav.  &  T. 
Co.  v.  Crawford,  33:  587,  70  S.  E.  1089,  69 
W.  Va.   109. 

114.  It  is  only  where  a  defense  arises 
before  indorsement  that  the  question  wheth- 
er the  indorsee  is  an  indorsee  for  value 
within  the  law  merchant  becomes  material. 


BILLS  AND  NOTES,  V.  a,  1. 


286 


Citi.-.ens'  State  Bank  v.  E.  A.  Tessman  & 
Co.  45:  606,  140  N.  \V.  178,  121  Minn.  34. 

115.  All  defenses  available  betvveen  the 
original  parties  to  a  non-negotiable  instru- 
ment are  available  against  an  assignee  of 
such  instrument.  Joseph  v.  Catron,  i:  1120, 
81  Pac.  439,  13  N.  M.  202. 

no.  The  v>arrantv  of  the  seller  under 
N.  D.  Eev.  Codes  1905,  §  5428,  which  pro- 
vides that  "one  who  sells  or  agrees  to  sell 
an  instrument  purporting  to  bind  anyone  to 
the  performance  of  an  act  thereby  warrants 
the  instrument  to  be  what  it  purports  to 
be,  and  to  be  binding  according  to  its  pur- 
port upon  all  parties  thereto,  and  also  war- 
rants tl)at  he  had  no  knowledge  of  any 
facts  which  tend  to  prove  it  worthless,  such 
as  the  insolvency  of  any  of  the  parties 
thereto,  when  that  is  material,  the  extinc- 
tion of  its  obligations,  or  its  invalidity  for 
any  cause,"  is  not  the  warranty  of  an  in- 
dorser,  but  the  warranty  of  a  vendor, 
which  is  personal  to  the  vendee.  McAdams 
v.  (irand  Forks  Mercantile  Co.  47:  246,  140 
N.  W.  725,  24  N.  D,  645. 

117.  The  negotiability  or  non-negotiability 
of  a  promissory  note  is  immaterial  in  an 
action  against  the  maker  by  an  indorsee 
after  maturity.  Southard  v.  Latham,  50: 
871,  138  Pac.  205,  18  N.  M.  503. 

118.  A  blank  left  for  the  amount  in  a 
promissory  note  may  be  filled  by  a  bona 
fide  holder  with  the  sum  stated  in  the  mar- 
gin, unless  it  was  left  by  mistake,  when  it 
may  be  corrected  by  a  court  of  equity. 
Chestnut  v.  Chestnut,  2:879,  52  S.  E.  348, 
104  Va.  539. 

119.  An  indorsement  of  the  name  of  the 
payee  on  the  back  of  a  promissory  note 
under  the  words  "assign  and  transfer"  vesta 
title  in  the  assignee  free  from  the  equities 
existing  between  the  parties  to  the  instru- 
ment. Leahy  v.  Ha  worth,  4:  657,  141  Fed. 
850,  73  C.  C.  A.  84. 

120.  The  rule  that  an  assignee  of  a  prom- 
issory note,  not  in  due  course,  takes  it  sub- 
ject to  equities  or  defenses  existing  between 
the  original  parties,  does  not  include  de- 
fenses arising  subsequently  to  the  transfer, 
such  as  the  failure  of  the  payee  to  comply 
with  a  promise  which  formed  the  considera- 
tion for  the  note.  Marling  v.  Fitzgerald, 
23:  177,  120  N.  W.  388,  138  Wis.  93. 

121.  No  right  of  an  assignee  of  non-nego- 
tiable notes  given  for  the  piirchase  price  of 
a  stallion,  and  not  maturing  until  sufficient 
time  to  test  him  has  elapsed,  is  prejudiced 
by  the  extension  of  the  stipulated  testing 
period,  where  it  expires  before  the  notes 
mature,  and  at  that  time  tlie  animal  is 
unsatisfactory,  so  that  he  may  be  then  re- 
turned and  the  notes  canceled.  Rosenthal  v. 
Rambo,  3:  678,  76  N.  E.  404,  165  Ind.  584. 

122.  One  who  executes  a  note  secured  by 
mortgage  which  is  placed  on  record,  to  an- 
other, who  does  not  comply  with  a  condition 
subsequent,  which  is  to  form  the  considera- 
tion for  it,  will  not  be  permitted  to  set  up 
that  fact  as  a  defense  to  a  suit  by  one  to 
whom  the  securities  were  assigned  for  value, 
without  notice,  although  he  did  not  take 
them  in  due  course,  so  as  to  be  within  the 
Digest  1-52  luTL.A.iN.S.) 


protection  of  the  law  merchant,  where  the 
maker  was  charged  with  notice  of  the  pos- 
sibility of  an  assignment  of  the  securities 
for  value.  ^Marling  v.  Fitzgerald,  23:  177, 
120  N.  W.  388,  138  Wis.  93.        (Annotated) 

123.  If  a  note  is  valid  as  between  the 
original  parties,  an  indorsee  who  holds  it 
as  collateral  may  recover  the  face  thereof, 
with  accrued  interest,  retaining  any  sur- 
plus as  trustee  for  the  party  beneficially 
entitled  thereto,  after  his  own  claim  is 
satisfied ;  but  if  the  note  is  invalid  as  be- 
tween the  immediate  parties,  he  may  re- 
cover only  the  amount  of  his  claim  to  which 
said  note  is  collateral.  Benton  v.  Sikyta, 
24:  1057,  122  N.  W.  61,  84  Neb.  808. 

124.  Where  the  payee  of  a  non-negotiable 
promissory  note  assigns  it  to  a  third  party 
as  security  for  a  loan,  and  pays  the  loan 
pending  suit  on  the  collateral,  the  holder 
may  nevertheless  recover  on  the  collateral 
note  from  the  maker,  unless  the  latter  is 
thereby  deprived  of  some  equity  which  he 
may  have  had  against  tlie  payee.  McNary 
V.  Farmers'  Nat.  Bank,  41:  1009,  124  Pac. 
286,  33  Okla.  1. 

125.  Tlie  maker  of  a  note  obtained  by 
fraud  and  transferred  to  a  bank  is  not 
relieved  from  his  liability  to  it  by  the  fact 
that  the  payee  had  made  an  assignment 
for  the  benefit  of  creditors,  including  sueh 
bank.  Lilly  v.  Hamilton  Bank,  29:  558, 
178  Fed.  53,  102  C.  C.  A.  1. 

Taking  after  maturity. 

Right  of  transferee  to  testify  that  he  bought 

note  before  it  was  due,  see  Evidence, 

1268. 

126.  A  note  which  is  payable  on  demand 
and  is  purchased  over  a  year  after  its  date, 
will  be  considered  to  have  been  overdue 
when  so  purchased.  McAdams  v.  Grand 
Forks  Mercantile  Co.  47:  246,  140  N.  W. 
725,  24  N.  D.  645. 

127.  The  holder  of  a  promissory  note 
who  has  purchased  it  after  its  dishonor  or 
maturity,  with  a  number  of  others,  and  has 
already  realized  from  other  notes  secured 
in  the  bulk  purchase  more  than  the  amount 
paid,  cannot  recover  on  the  note  against  an 
indorser.  McAdams  v.  Grand  Forks 
Mercantile  Co.  47:  246,  140  N.  W.  725,  24 
N.  D.  645.  (Annotated) 

128.  Where  a  note  indorsed  before  ma- 
turity is  by  the  indorser  after  maturity 
sold  as  a  chattel  with  a  number  of  other 
notes,  for  a  mere  nominal  consideration, 
and  under  an  agreement  that  the  seller 
does  not  guarantee  the  solvency  of  any  of 
the  notes,  and  is  not  to  be  held  as  an  in- 
dorser on  any,  the  presumption  of  a  reissue 
or  a  reindorsement  is  negatived,  and  a 
subsequent  purchaser  of  the  note  who  re- 
ceived title  by  delivery  only  does  not 
acquire  any  greater  right  against  the  in- 
dorser than  the  original  purchaser  pos- 
sessed. McAdams  v.  Grand  Forks  Mercan- 
tile Co.  47:  246,  140  N.  W.  725,  24  N.  D. 
645. 

129.  A  bona  fide  purchaser  without  notice, 
of  a  mortgage  note  after  maturity,  is  not 
affected  by  equities  existing  between  the 
maker  and  an  intermediate  indorsee,  where 


288 


BILLS  AND  NOTES,  V.  a,  2. 


there  could  have  been  no  defense  to  the  ac- 
tion as  against  the  original  payee.  Reardan 
V.  Cockrell,  50:  87,  103  Pac.  457,  54  Wash. 
400.  (Annotated) 

130.  A  restriction  that  a  note  and  trust 
deed  executed  for  another's  accommodation 
is  to  be  used  only  as  collateral  to  a  note 
held  by  a  particular  bank  is  not  binding  on 
one  who,  without  notice,  takes  the  instru- 
ments, even  after  maturity,  to  secure  mon- 
ey loaned  to  take  up  the  secured  note. 
Naef  V.  Potter,  11:  1034,  80  N.  E.  1084,  226 
111.  628.  (Annotated) 
Payment  to  other  person. 

131.  An  agreement  between  the  maker 
suid  payee  of  a  note  that  it  is  to  be  paid  in 
instalments  to  the  payee  is  binding  on  an 
assignee  with  notice,  so  that  he  cannot  en- 
force it  after  the  maker  has  complied  with 
his  agreement  and  paid  the  full  amount 
due  to  the  paj-ee,  although  at  the  time  of 
the  transfer  a  blank  is  lilled,  making  the 
note  payable  at  the  office  of  the  assignee, — 
at  least,  if  the  payee  is  made  the  agent  of 
the' assignee  to  collect  and  forward  the  pay- 
ments. Diamond  Distilleries  Co.  v.  Gott, 
31:  643,  126  S.  W.  131,  137  Ky.  585. 

132.  Payment  to  the  mortgagee  of  the 
amount  of  the  negotiable  rote  secured  by 
the  mortgage  is  at  the  risk  of  the  mortgagor, 
unless  he  requires  a  surrender  of  note  and 
mortgage;  bo  that  in  case  the  note  has  been 
negotiated,  and  the  money  does  not  reach 
tlie  true  owner,  the  mortgagor  will  be  re- 
quired to  make  a  second  payment.  Leahy 
V.  Haworth,  4:  657,  141  Fed.  850,  73  C.  C. 
A.  84. 

Failnre   of  consideration. 

Defense  of  want  or  failure  of  consideration, 

generally,  see  infra,  213-220. 
Estoppel    to    set    up    defense    of    failure  of 

consideration,  see  Estoppel,  188. 
See  also  infra,   178. 

133.  The  defense  of  a  lack  of  considera- 
tion which  might  be  pleaded  against  a  state 
bank  is  available  against  the  president  of 
such  bank  without  regard  to  his  good  faith 
in  the  purchase  of  the  negotiable  instru- 
ment sued  upon.  McCarty  v.  Kepreta, 
48:  65,  139  N.  W.  992,  24  N.  D.  395. 

134.  A  defense  of  want  of  consideration 
available  to  a  maker  as  against  a  state  bank 
as  payee  of  a  negotiable  instrument  may 
be  asserted  as  a  defense  in  an  action  brought 
against  the  maker  by  the  bank  president, 
who  claims  to  have  purchased  the  note  as 
his  individual  property,  without  proof  of 
actual  notice  had  by  such  president  of  in- 
firmities in  the  instrument.  McCarty  v. 
Kepreta,  48:  65,  139  N.  W.  922,  24  N.  D. 
395. 

135.  The  maker  from  whom  a  note  exe- 
cuted to  cover  the  purchase  price  of  a 
horse  is  fraudulently  obtained  is  not,  in 
order  to  defeat  a  recovery  thereon  by  an 
indorsee,  required  to  show  that  the  sale  was 
rescinded  or  the  animal  returned,  where  it 
does  not  appear  that  it  was  ever  delivered 
or  accepted,  or  that  he  had  received  any 
benefit  from  it.  Mee  v.  Carlson,  29:  351, 
117  N.  W.  1033,  22  S.  D.  365. 

130.  That  a  note  was  purchased  without 
Dieest  1-52  L.R.A.(N.S.) 


notice  of  a  defense  does  not,  of  itself,  as 
matter  of  law,  entitle  the  holder  to  en- 
force it,  where  it  was  transferred  in  viola- 
tion of  an  agreement  to  return  it  if  the 
property  for  which  it  was  given  did  not 
give  satisfaction.  Piersoii  v.  Huntington, 
29:  695,  74  Atl.  88,  82  Vt.  482. 

137.  Lack  of  consideration  is  no  defense 
to  a  note  in  the  hands  of  a  bona  fide  holder 
for  value.  Page  v.  Ford,  45:  247,  131  Pac. 
1013,  65  Or.  450. 

2.   Of  bona  fide  holders. 

(See   also   same   heading   in   Digest   L.R.A.. 
1-10.) 

Of  checks,  see  Checks,  IV. 

Estoppel  to  set  up  defense  as  against,  see 

Estoppel,  86,  184,  191. 
Evidence  as  to  consideration,  see  Eyibenob, 

U!)0,   991,    1248. 
As  against  married  woman,   see   Husband 

AND  Wife,  34-36,  42. 

138.  ITie  owner  of  a  negotiable  promis- 
sory note,  who  obtains  it  before  maturity 
for  a  valuable  consideration,  without  the 
knowledge  of  any  defect  of  title,  and  in  good 
faith,  holds  it  by  a  title  valid  againet  all 
the  world.  McPherrin  v.  Tittle,  44:  395,  129 
Pac.  721,  36  Okla.  510. 

139.  A  bona  lide  holder  in  due  course  of 
an  accepted  bill  of  exchange  from  which  a 
written  agreement  modifying  the  terms 
thereof,  which  had  been  securely  glued 
thereto,  has  been  unlawfullv  removed,  may, 
under  Cobbey's  Neb.  Ann.  Stat.  1907,  §  9322, 
recover  only  according  to  the  original  terms 
of  the  contract.  Bothell  v.  Schweitzer,  22: 
263,  120  N.  W.  1129,  84  Neb.  271. 

(Annotated) 

140.  The  indorsement  by  the  payee  of  a 
note,  of  his  name  under  a  guaranty  of  pay- 
ment combined  with  a  waiver  of  demand, 
notice,  and  protest,  constitutes  a  blank  in- 
dorsement, so  as  to  pass  title  to  one  who 
takes  the  paper  in  due  course  for  value, 
Voss  v.  C;  imberlain,  19:  106,  117  N.  W.  E69, 
139  Iowa,  569. 

141.  An  innocent  holder  for  value  may 
enforce  a  note  given  for  lightning  rods,  not- 
withstanding it  does  not  bear  upon  its  face 
a  declaration  of  that  fact,  as  required  by 
statute,  which  renders  it  invalid  as  between 
the  parties  to  it, — at  least  under  a  negotia- 
ble instruments  law  permitting  an  inno- 
cent holder,  with  certain  inapplicable  ex- 
ceptions, to  enforce  the  note  free  from  de- 
fenses available  between  the  original  par- 
ties. Arnd  v.  Sjoblom,  10:  842,  111  N.  W. 
666,    131    Wis.    (542.  (Annotated) 

142.  Where  the  payees  in  a  promissory 
note  payable  to  order  write  on  the  back 
of  it  the  words,  "For  value  received  we 
hereby  warrant  the  makers  of  this  note 
financially  good  on  execution,"  and  sign 
their  names  after  such  entry,  and  negotiate 
and  deliver  the  note  for  value,  such  indorse- 
ment is  sufficient  to  transfer  title  to  the 
note;  and  if  made  before  maturity  to  a 
bona  fide  purchaser  for  value  without  Be> 


BILLS  AND  NOTES,  V.  a,  2. 


267 


tice  of  any  defense,  such  purcliaser  is  pro- 
tected from  any  defenses  which  the  maker 
miglit  have  except  those  expressly  allowed 
by  statute.  Hendrix  v.  Bauliard  Bros,  43: 
1028,  75  S.  E.  588,  138  Ga.  473. 
Accouiuiodatiou  paper. 
Liability  of  accomnaodation  indorser,  see 
supra,  87. 

143.  One  who  takes,  in  payment  of  equip- 
ment furnished  to  a  contractor  for  the  con- 
str  +ion  of  a  street  railway,  notes  made  by 
and  payable  to  th^  contractor  itself,  con- 
taining the  indorsem.nt  of  the  company 
for  which  the  makev  is  performing  work,  is, 
in  the  absence  of  evidence  that  the  debt  is 
in  fact  that  of  the  indo.  ^er,  chargeable  with 
knowledge  that  the  indorsement  is  merely 
for  accommodation,  and  therefore  ultra 
vires.  J.  C.  Brill  Co.  v.  Norton  &  T. 
Street  R.  Co.  2:  525,  75  N.  E.  1090,  189  Mass. 
431.  (Annotated) 

H4.  An  accommodation  indorser  of  a 
promissory  note  complete  when  indorsed  is 
not  liable  to  a  bona  fide  holder  for  the 
amount  which  has  been  added  to  tlie  note  by 
the  fraudulent  act  of  the  maker  in  raising 
it  merely  because  he  did  not  see  that  all 
spaces  which  might  be  utilized  for  the  per- 
I>etration  of  such  fraud  were  filled.  Nation- 
al Exch.  Bank  v.  Lester,  «i:  402,  87  N,  E. 
779,   194  N.   Y.   461.  (Annotated) 

Rights    of    pui'cliaser    froiu    bona    fide 

holder. 
Purchaser  of  check,  see  Checks,  52. 

145.  A  transferee  after  maturity  from  a 
bona  fide  holder  for  value  who  received  the 
note  before  maturity  is  entitled  to  the  same 
protection  against  defenses  by  the  maker 
which  could  have  been  asserted  by  his  as- 
signor. Miles  V.  Dodson,  50:  83,  144  S.  W. 
908,  102  Ark. '422.  (Annotated) 
Note  procured  by  fraud  on  maker. 
Admissibility  of  evidence  to  show  fraud,  see 

Evidence,    16G3. 
See  also  supra,   135;    infra,   181,   182. 

146.  The  maker  of  a  note  which  has  been 
transferred  by  the  payee  as  security  for  a 
debt  cannot  show  fraud  and  failure  of  con- 
sideration in  an  action  thereon  by  the 
holder  until  he  has  shown  that  the  holder 
is  not  an  innocent  purchaser  for  value  be- 
fore maturitJ^  Eirat  Nat.  Bank  v.  Walker, 
50:  II 15,  136  Pac.  408,  39  04<la.  620. 

147.  A  bona  fide  liolder  of  a  note  and 
mortgage  cannot  enforce  the  note  where  the 
maker  is  an  illiterate  colored  woman  over 
seventy  years  of  ago,  and  was  induced  by 
false  and  fraudulent  representations  to 
sign  tl)eni  without  negligence  on  her  part, 
under  the  belief  that  she  was  signing  her 
last  will  and  testament  and  a  power  of 
attorncv.  First  Nat.  Bank  v.  Wade,  35: 
775,   111   Pac.  205,  27   Okla.   102. 

(Annotated) 

148.  Makers  who  actually  signed  a  joint 
and  several  note  purporting  at  the  time  of 
its  delivery  to  have  been  signed  by  twenty 
persons,  and  bearing  nothing  on  its  face  to 
cast  doubt  upon  any  of  the  signatures,  can- 
not escape  liability  to  a  bona  fide  holder 
upon  the  ground  that  the  names  of  some  of 
the  purported  makers  were  forged  before  the 
Dieest  1-52  ]1R.A.(N.S.) 


note  was  executed  and  delivered.  First  Nat. 
Bank  v.  Shaw,  13:  426,  112  N.  W.  904,  149 
Mich.  362.  (Annotated) 

Fraud      ia     securine      transfer     from 
payee. 

149.  A  transferee  of  negotiable  paper  need 
not  show  that  he  paid  for  it  in  order  to 
hold  it  against  the  payee,  from  whom  it  was 
obtained  by  fraud,  under  a  statute  pro- 
viding that  a  bona  fide  holder  for  value 
may  not  recover  against  the  maker  a  great- 
er sum  than  he  paid  for  the  paper  if  it 
was  procured  by  fraud  upon  the  maker. 
Voss  V.  Chamberlain,  19:  io5,  117  N.  W.  269, 
139  Iowa,  569. 

150.  That  a  note  secured  by  mortgage  is 
overdue  does  not  prevent  one  holding  it  un- 
der an  apparently  valid  transfer  from  the 
true  owner  from  conferring  a  good  title  up- 
on an  innocent  purchaser  for  value,  although 
he  secured  the  transfer  by  fraud.  Gardner 
V.  Beacon  Trust  Co.  2:  767,  7C  N.  E.  455,  190 
Mass.  27.  (Annotated) 
Note    by   incompetent   person. 

151.  A  note  signed  by  a  maker  when  so  in- 
toxicated as  to  destroy  the  faculties  of  his 
mind  cannot  be  enforced  by  a  bona  fide 
holder  in  due  course,  under  the  negotiable 
instruments  law  which  makes  void  the  title 
of  one  who  negotiates  a  note  the  signature 
to  which  was  procured  from  a  person  who 
did  not  know  the  nature  of  the  instrument 
which  he  was  signing,  and  could  not  have 
obtained  such  knowledge  by  the  use  of  ordi- 
nary care,  and  prevents  a  holder  in  due 
course  from  enforcing  an  instrument  which 
is  void  in  the  hands  of  the  payee.  Green  v. 
Gunsten,  46:  212,  142  N.  W.  261,  154  Wis. 
69.  (Annotated) 
Lost   or   stolen   note. 

152.  Tlie  rights  of  the  owner  of  negotiable 
paper  which  is  indorsed  in  blank  and  de- 
posited in  a  receptacle  in  a  bank  for  safe- 
keeping are  inferior  to  those  of  a  trans- 
feree for  value  without  notice  in  due  course 
of  business,  from  a  bank  official  who  wrong- 
fully misappropriates  the  paper  and  uses 
it  for  purposes  of  his  own.  Voss  v.  Cham- 
berlain, 19:  106,  117  N.  W.  269,  139  Iowa, 
569.  (Annotated) 

153.  The  return  by  a  bank  officer  to  the 
private  receptacle  of  a  customer,  of  nego- 
tiable paper  indorsed  in  blank  which  such 
official  had  wrongfully  taken  from  such  re- 
ceptacle and  pledged  for  his  own  indebted- 
ness, and  had  recovered  from  the  pledgee 
ostensibly  for  collection,  does  not  render 
the  owner  a  new  holder  for  value,  Avhich 
will  render  his  rights  superior  to  those  of 
the  pledgee.  Voss  v.  Chamberlain,  19:  io5. 
117  N.  W.  269,  139  Iowa,  569. 
Contracts  against  public  policy. 
Validity  of  note,  see  supra,   17-19. 

154.  A  promissory  note  given  for  an  il- 
legal and  immoral  consideration  is  void, 
and  cannot  be  enforced,  even  in  the  hands 
of  an  innocent  purchaser  for  value,  before 
due,  and  without  any  notice  of  defense; 
and  this  is  so  even  if  the  consideration  of 
the  note  is  in  part  legal.  Exchahge  Nat. 
Bank  v.  Henderson,  51:  549,  77  S.  E.  36,  139 
Ga.  260. 


BILLS  AND  NOTES,  \.  b,  1. 


155.  Buying  or  selling  votes  and  politi- 
eal  influence  ia  both  illegal  and  immoral; 
and  a  note  having  a3  a  basis  such  considera- 
tion, in  whole  or  in  part,  is  void,  and  can- 
not be  enforced  in  the  hands  of  an  inno- 
cent purchaser.  Exchange  Nat.  Bunk  v. 
Henderson,  51:  549,  77  S.  E.  36,  139  Ga.  260. 

(Annotated) 

156.  A  note  given  to  compound  a  felony 
may  be  enforced  by  a  bona  fide  purchaser 
without  notice  before  maturity.  American 
Nat.  Bank  v.  Madison,  38:  597,  137  S.  W. 
1076,  144  Ky.  152. 

Spnrions  note. 

157.  One  who  makes  a  note  purporting  to 
be  that  of  another  is  not  liable  to  a  third 
person  who  takes  it  for  value,  merely  be- 
cause lie  negligently  permits  it  to  pass  out 
of  his  custody  and  control.  Costello  v.  Bar- 
nard, 3:  212,  76  N.  E.  599,  190  Mass.  260. 

(Annotated) 
Payment  to  other  party. 

158.  The  maker  acts  at  his  own  risk  in 
paying  a  note  to  the  payee  which  has  been 
transferred  to  a  bona  fide  holder  for  value. 
Miles  V.  Dodson,  50:  83,  144  S.  W.  908,  102 
Ark.  422. 

b.  Who  are  protected  as  bona  fide 
purchasers. 

1.  In  general, 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Of  check,  see  Checks,  41-47. 

Presumption  and  burden  of  proof  as  to  bona 
fides,  see  Evidence,  197,  198,  274,  279- 
281,  590,  591. 

Evidence  on  question  of  bona  fides,  see  Evi- 
dence, 1204. 

Sufficiency  of  evidence  to  sustain  finding 
against  bona  fides,  see  Evidence,  2324, 
2325. 

Of  note  secured  by  mortgage,  see  Mobtgage, 
56,  57. 

Question  for  jury  as  to,  see  Trial,  97, 
306,  307. 

Instructing  jury  as  to  right  to  find  against 
bona  fides  of  purchaser  of  note,  see  Tri- 
al, 847. 

See  also  Banks,  183. 

158a.  A  bona  fide  holder  is  one  who  re- 
ceives the  instrument  in  the  ordinary  course 
of  business,  in  good  faith,  and  for  a  valua- 
ble consideration.  Pennington  County  Bank 
V.  First  State  Bank,  26:  849,  125  N.  W. 
119,  110  Minn.  263. 

159.  The  purchaser  of  negotiable  paper  in 
due  course,  and  before  maturity,  is  under 
no  duty  to  make  inquiry  as  to  the  title  to 
such  paper,  fair  and  regular  on  its  face, 
nor  is  he  under  any  duty  to  inquire  into 
the  consideration  given  for  the  note  or  of 
the  transaction  out  of  which  it  arose.  He 
is  only  chargeable  with  facts  which  act- 
ually come  to  his  knowledge;  that  is,  act- 
ual knowledge  of  a  defect  in  the  title, 
want  of  consideration,  or  such  facts  as 
would  constitute  a  defense  to  the  note  as 
Digest   1-52  L.R.A.(N.S.) 


between  the  maker  and  original  payee,  or 
actual  knowledge  of  such  facts  and  circum- 
stances as  would  lead  an  honest  and  fair 
business  man  to  make  further  inquiry,  and 
which  inquiry,  if  made,  would  lead  to  the 
discovery  of  the  fraud,  defect,  and  defenses. 
Vaughn  v.  .Tolinaon,  37:  816,  119  Pac.  879, 
20    Idaho,   669. 

160.  "In  due  course  of  business"  involves 
indorsement  of  a  promissory  note  to  the 
holder  before  maturity,  where  the  instru- 
ment is  payable  to  order.  Cochran  v.  Stein, 
41:391,  136  N.   W.   10.37,   118  Minn.   323. 

101.  Where  a  promissory  note'payablo  to 
the  order  of  A  or  B  is  indorsed  by  A  only, 
to  one  who  takes  it  in  good  f^ith,  for  value 
and  without  any  notice  of  infirmity  in  the 
instrument  or  defect  in  the  title,  the  in- 
dorsee is  a  holder  in  due  course,  under  the 
provisions  of  the  negotiable  instruments 
law.  Voris  v.  Schoonover,  50:  1097,  138 
Pac.  607,  91  Kan.  530.  (Annotated) 

162.  After  a  commission  company  has  as- 
signed and  guaranteed  the  payment,  at  ma- 
turity, of  accommodation  notes  to  a  bank, 
an  otticer  of  the  company  who  is  not  a 
guarantor  of  the  notes,  but  who  has  tiiere- 
tofore  given  a  written  undertaking  to  the 
bank,  indemnifying  it  for  any  debts  of  the 
company  thereafter  contracted,  to  an 
amount  much  larger  than  the  amount  of 
the  notes,  does  not  become  a  purchaser  of 
the  notes  for  value  in  the  usual  course  of 
business  by  payment,  after  maturity,  of  a 
balance  due  upon  the  notes,  which  are  de- 
livered to  him.  Rockefeller  v.  Ringle,  15: 
737,  04  Pac.  810,  77  Kan.  515. 

163.  The  mere  exhibition  by  an  agent  for 
the  investment  of  money,  to  his  principal, 
of  a  negotiable  note  indorse4  in  blank  as 
representing  his  money,  and  the  acquies- 
cence by  the  latter,  do  not  constitute  him  a 
bona  fide  purchaser  so  as  to  entitle  him  to 
hold  the  note  as  againrt  the  true  owner, 
who  had  placed  it  with  the  agent  for  safe- 
keepinsr.  Bettanier  v.  Smith,  5:  628,  K5  N. 
W.  999,  129  Iowa,  597.  (Annotated) 

164.  A  bona  fide  holder  of  negotiable 
paper  who,  after  pledging  it  as  collateral 
for  his  own  debt,  receives  it  back  upon  pay- 
ing his  debt,  or  purchases  it  from  the 
pledgee,  is  entitled  to  the  protection  as  in- 
nocent holder  which  he  originallv  possessed. 
Miles  V.  Dodson,  50:  83,  144  S.  W.  908,  102 
Ark.  422. 

Bank    creditine    note    on    depositor's 
account. 

165.  A  bank  does  not  become  a  purchaser 
in  due  course,  for  value,  by  crediting  a 
note  upon  the  payee's  account,  if  the  credit 
is  not  absorbed  by  antecedent  indebtedness 
or  exhausted  by  subsequent  withdrawals. 
McKnitrht  v.  Parsons,  22:  718,  113  N.  W. 
858,   136  Iowa,  390. 

166.  A  bank  which  discounts  a  note  and 
places  the  proceeds  to  the  credit  of  the 
payee's  account  is  not  deprived  of  the  rights 
of  a  bona  fide  holder  by  the  fact  that  the 
funds  in  the  account  at  the  time  of  the  dis- 
count of  the  note  and  at  the  time  of  its 
maturity  exceed  the  amount  of  the  note, 
if  in  the  interim,  and  before  the  bank  learns 


BILLS  AND  NOTES,  V.  b,  2. 


289 


of    any    defense    to    the    note,    the    entire    payee  to   be   patented,   takes  subject  to  all 

defenses  between  the  original  parties,  if  at 
the  time  of  his  purchase  he  lias  knowledge 
of  the  consideration,  and  none  of  tlie 
parties  tinough  whom  he  claims  were  in 
ignorance  of  that  fact,  even  though  the  note 
was  not  indorsed,  "Given  for  a  patent 
right,"  as  required  by  statute.  Benton  v. 
Sikyta,  24:  1057,  122  N.  W.  61,  84  Neb.  808. 

(Annotated) 

172.  A  negotiable  promissory  note  is  not 
dishonored  by  reason  of  a  failure  to  pay 
interest  prior  to  maturity  of  the  principal, 
in  the  absence  of  a  stipulation  in  the  note  to 
that  effect;  but  the  fact  that  interest  is  due 
and  unpaid  is  a  material  circumstance  bear- 
ing on  the  question  of  whether  the  pur- 
chaser acquired  the  note  in  good  faith  and 
without  notice  of  prior  equities  or  infirm- 
ities in  the  title.  McPherrin  v.  Tittle,  44: 
395,  129  Pac.  721,  36  Okla.  510. 

173.  Knowledge  by  an  assignee  in  due 
course  of  a  negotiable  note,  that  it  was 
given  for  the  purchase  price  of  a  s}3ecified 
quantity  of  land  at  a  specified  price  per 
acre,  is  not  a  notice  to  him  of  failure  of 
title  or  shortage  in  quantity.  Dollar  Sav. 
&  T.  Co.  V.  Crawford,  33:  587,  70  S.  E.  108'J, 
69  W.  Va.  109. 

]  74.  The  fact  that  a  bank  which  has  pur- 
chased notes  from  a  horse  dealer  has  had 
more  than  twenty  suits  to  collect  the  notes, 
the  defenses  usually  being  that  the  horses 
were  not  satisfactory,  is  not  sufficient  to 
defeat  the  bona  fides  of  its  purchase  of 
another  note,  so  as  to  let  in  the  defense 
of  fraud  in  favor  of  the  maker.  Citizens' 
Trust  &  Sav.  Bank  v.  Stackhouse,  40:  454, 
74  S.  E.  977,  91  S.  C.  455. 

175.  A  bank  to  which  is  ofTered  a  note 
payable  to  a  nonresident  whom  it  knows  to 
be  practising  medicine  in  the  state,  which 
he  is  not  permitted  to  do  without  a  license, 
and  who  has  offered  it  many  similar  notes, 
is  bound  to  inquire  into  the  consideration 
for  the  note,  and  in  case  it  fails  to  do  so, 
and  the  note  was  in  fact  given  for  pro- 
fessional services  and  the  payee  was  un- 
licensed, it  cannot  enforce  payment  of  the 
instrument.  State  Bank  v.  Lawrence,  42: 
326,  96  N.  E.  947,  177  Ind.  515. 

]  76.  A  joint  maker  of  a  note  is  not,  as 
against  the  holder,  a  surety  for  the  co- 
maker to  the  extent  of  the  hitter's  portion 
of  the  note,  so  that,  in  case  the  joint  maker 
is  a  partnership,  the  holder  Avill  be  charge- 
able with  notice  of  the  suretyship,  ami 
tlierefore  of  the  lack  of  authority  to  sign 
the  note.  Union  Nat.  Bank  v.  Neill,  10:  426, 
149  Fed.  711,  79  C.  C.  A.  417. 

177.  Mere  knowledge  that  a  note  is  given 
in  consideration  of  an  executory  agreement 
is  not  sufficient  to  deprive  tlie  indorsee  nf 
the  rights  of  a  bona  fide  holder.  ilcKnight 
v.  Parsons,  22:  718,  113  N.  VV.  858,  136 
Iowa,  390. 

178.  The  fact  that  the  president  of  a 
state  bank  docs  not  actively  participate  in 
tlie  management  of  the  bank  does  not  re- 
lieve him  from  notice  imputed  to  him  by 
virtue  of  his  position,  of  infirmities   in  an 


amount  of  the  deposit  is  drawn  out.  North- 
field  Nat.  Bank  v.  Arndt,  12:  82,  112  N.  W. 
451,   132   Wis.   383. 

2.  Knowledge ;  notice;  facts  putting  on 
inquiry. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Transferee  of  check,  see  Checks,  42,  43,  47. 

Burden  of  proving  lack  of  notice  of  defect, 
see  Evidence,   198. 

Evidence  of  declarations  of  payee  to  im- 
j)each  validity  of  note,  see  Evidence, 
1450. 

Imputing  knowledge  of  payee  of  infirmi- 
ties to  bank  of  which  he  is  president, 
see  Notice,  57. 

Sufficiency  of  evidence  to  take  question  of 
^bad  faith  to  jury,  see  Trial,   119. 

Correctness  of  instructions  as  to,  see  Trial, 
1019. 

See  also  supra,  46;  infra,  200,  201. 

167.  One  who  purchases  negotiable  paper 
without  inquiry,  when  the  circumstances 
are  such  as  would  excite  the  suspicion  of 
a  prudent  and  careful  man,  does  not  stand 
in  the  position  of  a  bona  fide  holder.  Pier- 
son  v.  Huntington,  29:  695,  74  Atl.  88,  82 
Vt.  482. 

168.  A  purchaser  of  a  note  with  actual 
notice  of  suspicious  circumstances  sufficient 
to  put  a  prudent  person  on  inquiry  as  to  its 
validity  is  charged  with  notice  of  all  facts 
which  such  inquiries  would  have  elicited. 
Mee  v.  Carlson,  29:  351,  117  N.  VV.  1033, 
22  S.  D.  365. 

169.  Suspicion  of  defect  of  title,  or  the 
knowledge  of  circumstances  which  would 
excite  such  suspicion  in  the  mind  of  a  pru- 
dent man,  or  of  circumstances  sufficient  to 
put  Jiim  upon  inquiry,  will  not  defeat  the 
title  of  an  indorsee  of  a  negotiable  promis- 
sory note;  that  result  can  be  produced  only 
by  had  faith  on  his  part.  McPherrin  v. 
Tittle,  44:  395,  129  Pac.  721,  36  Okla.  510. 

(Annotated) 

170.  A  statute  which  provides  that,  to 
constitute  notice  of  an  infirmity  in  a  ne- 
gotiable instrument,  the  person  to  whom 
it  is  negotiated  must  have  liad  actual  notice 
of  the  infirmity,  or  knowledge  of  such  facts 
that  his  action  in  taking  the  instrument 
amounted  to  bad  faith,  does  not  change 
the  rule-  that,  to  constitute  bad  faith  on 
the  part  of  the  purchaser  of  a  negotiable 
promissory  note  for  value  before  maturity, 
he  must  have  acquired  it  with  knowledge 
of  the  infirmities  occurring  in  the  original 
transaction,  or  with  a  belief,  based  on  tlie 
circumstances  known  to  him,  that  there 
was  a  defense  to  the  instrument,  or  the 
evidence  must  show  that  he  acted  in  bad 
faith  or  dishonestly.  Benton  v.  Sikyta, 
24:  1057,   122  N.  W.  61,  84  Neb.   808. 

171.  The  indorsee  for  value  before  ma- 
turity, of  a  promissory  note  given  in  con- 
sideration of  a  right  to  make,  use,  or  vend 


^ 


a   patented  article,  or   one   claimed  by   the    instrument   which   he   purchased   from    the 
Digest   1-52  I,.R.A.(N.S.)  19 


290 


BILLS  AND  NOTES,  V.  b,  3, 


bank,  so  that  the  defense  of  a  lack  of  con- 
sideration is  not  available  to  the  maker  of 
the  instrument.  McCartv  v.  Kepreta, 
48:  65,  139  N.  W.  992,  24  N.  D.  395. 

(Annotated) 

179.  A  bank  which  directs  the  indorse- 
ment of  a  fictitious  payment  upon  a  note  to 
reduce  it  to  the  amount  which  it  is  willing 
to  advance  upon  it  before  discounting  it 
is  not  a  holder  in  due  course,  so  as  not  to 
be  affected  by  the  alteration,  under  the  ne- 
gotiable instruments  act.  Washington  Fi- 
nance Corp.  V.  Glass,  46:  1043,  134  Pac. 
480,  74  Wash.  653. 

Indorsement  "\irithont  recourse/' 

180.  The  fact  that  a  note  is  assigned 
without  recourse  casts  no  suspicion  upon 
the  holder's  title.  Dollar  Sav.  &  T.  Co.  v. 
Crawford,  33:  587,  70  S.  E.  1089,  69  W.  Va. 
109. 

181.  The  offer  for  sale  by  a  comparative 
stranger  residing  out  of  the  state,  to  an  in- 
dividual, of  a  note  indorsed  by  him  "with- 
out recourse,"  which  had  been  procured 
from  the  maker  by  fraud,  at  a  place  other 
than  that  of  the  residence  of  the  maker,  in 
whose  vicinity  are  several  banks,  is  a  cir- 
cumstance calculated  to  arouse  suspicion 
in  the  mind  of  a  prudent  person,  so  that 
his  purchase  without  inquiry  may  destroy 
his  bona  fides,  and  prevent  his  enforcing 
the  note  against  the  maker.  Mee  v.  Carl- 
son, 29:  351,  117  N.  W.  1033,  22  S.  D.  365. 

( Annotated ) 

182.  The  purchaser  of  a  note  from  an 
indorser  who  indorses  "without  recourse" 
may  be  found  not  to  have  fulfilled  his  duty 
in  merely  inquiring  as  to  its  validity  from 
his  indorser,  so  as  to  entitle  him  to  hold 
the  maker  thereon,  where  the  instrument 
was  obtained  from  the  maker  by  fraud,  and 
he  obtained  it  at  a  tempting  discount.  Mee 
V.  Carlson,  29:  351,  117  N.  W.  1033,  22  S.  D. 
365. 

Taken  front  trustee. 

183.  The  indorsement  by  a  trustee,  de- 
scribing himself  as  such,  of  interest-ljear- 
ing  certificates  of  deposit  payable  to  him  as 
trustee,  prima  facie  and  presumptively 
fixes  a  purchaser  with  actual  knowledge  of 
the  trustee's  want  of  authority  to  dispose 
of  the  paper  for  his  own  benefit,  within 
the  meaning  of  the  section  of  the  negotiable 
instruments  law  which  provides  that,  to 
constitute  notice  of  infirmity  in  the  instru- 
ment or  defect  in  the  title,  there  must  be 
actual  knowledge  of  such  infirmity  or  de- 
fect,— at  least  where  the  certificates  are  not 
due,  and  the  interest  is  payable  only  at 
maturity.  Ford  v.  Brown,  i:  188,  88  S.  W. 
1036,  114   Tenn.  467.  (Annotated) 

184.  The  word  "trustee,"  added  to  the 
payee's  name  in  a  written  instrument,  is 
sufficient  to  put  a  purchaser  upon  inquiry 
as  to  all  the  terms  and  conditions  under 
which  it  may  have  been  executed,  and,  in 
the  absence  of  such  inquiry,  knowledge 
thereof  will  be  presumed.  McLeod  v.  De- 
spain,  19:  276,  90  Pac.  492,  49  Or.  536. 
Taken  from  ofBLcer  of  corporation. 

185.  One  taking  the  note  of  a  corpora- 
tion, executed  by  its  president  to  his  own 
Digest  1-52  I<.R.A.(N.S.) 


order,  and  used  in  payment  of  his  individual 
debt,  is  not  a  bona  fide  holder,  and  cannot 
enforce  it  against  the  corporation.  Kenyon 
Realty  Co.  v.  National  Deposit  Bank, 
31:  169,  130  S.   W.  965,   140  Ky.   133. 

(Annotated) 
For  maker's   accommodation. 

186.  One  discounting  a  draft  for  the  ac- 
ceptor is  charged  with  notice  that  it  was 
drawn  for  his  accommodation.  Cook  v. 
American  Tubing  &  Webbing  Co.  9:  193,  65 
Atl.    641,   28   R.   I.   41. 

187.  That  drafts  accepted  by  a  firm  were 
indorsed  and  deposited  by  one  of  the  part- 
ners does  not  relieve  the  bank  of  notice  that 
they  were  drawn  for  accommodation,  where 
it  had  notice  that  the  discount  was  for  the 
benefit  of  the  firm,  and  the  proceeds  were 
drawn  on  firm  account.  Cook  v.  American 
Tubing  &  Webbing  Co.  9:  193,  65  Atl.  641, 
28  R.  I.  41. 

3.   TaTcen  as  collateral  security  or  'for 
antecedent  debt. 

(See   also  same   heading  in  Digest  L.R.A. 
1-70.) 

See  also  supra,  123,  165. 

188.  A  payee  who  takes  a  note  for  past 
indebtedness,  in  which  a  blank  has  been 
wrongfully  filled  out,  is  not  a  holder  in  due 
course,  within  the  meaning  of  the  section 
in  the  negotiable  instruments  law  requiring 
blanks  to  be  filled  according  to  instructions, 
but  providing  that,  if  such  an  instrument, 
after  completion,  is  negotiated  to  a  holder 
in  due  course,  he  may  enforce  it  as  if  it 
had  been  filled  up  strictly  in  accordance 
with  the  authority  given.  Vander  Ploeg  v. 
Van  Zuuk,  13:  490,  112  N.  W.  807,  135  Iowa, 
350.  (Annotated) 
Taken  as  collateral  security. 

189.  One  taking  negotiable  paper  as  col- 
lateral for  a  newly  incurred  or  pre-existing 
indebtedness  is  entitled  to  protection  as  an 
innocent  holder.  Miles  v.  Dodson,  50:  83, 
144  S.  W.  908,  102  Ark.  422. 

190.  The  indorsee  before  maturity  of  a 
promissory  note  as  collateral  security  for 
an  existing  debt  is  entitled  to  the  rights 
of  a  holder  for  value.  Exchange  Nat.  Bank 
V.  Coe,  31 :  287,  127  S.  W.  453,  94  Ark. 
387.  (Annotated) 

191.  The  holder  of  a  negotiable  note  ex- 
ecuted as  collateral  security  for  an  ante- 
cedent debt,  which  has  been  extended  on 
account  of  the  giving  of  such  collateral,  re- 
tains the  same  unaffected  by  equities  be- 
tween the  original  parties  of  which  he  had 
no  notice.  Farmers'  Nat.  Bank  v.  ^IcCall, 
26:  217,    106   Pac.   866,   25   Okla.    600. 

192.  One  who  renews  his  note  to  a  bank 
without  requiring  a  surrender  of  the  old 
one,  which  has  been  pledged  by  the  bank 
as  collateral,  may  be  compelled  to  pay  both 
notes  if  the  new  one  is  pledged  to  another 
bank  which  takes  it  without  notice.  Citi- 
zens' Bank  v.  Weakley,  11:  598,  103  S.  W. 
249,  126  Ky.  169. 

193.  One    taking   negotiable    paper   as   a 


BILLS  AKD  NOTES,  VL  a,  b. 


291 


substitute   for  other  securities  held  as  col- 1 
lateral  for  a  debt  which  he  surrenders  at  the 
time  is  a  holder  for  value.     Voss  v.  Cham-  i 
berlain,   19:  106,  117   N.  W.  269,   139  Iowa, 
569. 

194.  One  taking  a  pledge  of  negotiable  pa- 
per from  a  bank  olRcial  as  collateral  for 
his  own  debt  is  not  bound  to  show  diligence 
in  ascertaining  the  official's  right  to  the 
paper  as  against  the  payee  who  has  in- 
dorsed it  in  blank  and  left  it  in  a  recep- 
tacle in  the  bank  for  safe-keeping,  under  a 
statute  providing  that  the  rule  that,  when 
it  is  shown  that  the  title  of  any  person 
who  has  negotiated  such  paper  was  defect- 
ive, the  burden  is  on  the  holder  to  prove 
title  acquired  in  due  course,  does  not  apply 
in  favor  of  a  person  who  became  bound  on 
the  instrument  prior  to  the  acquisition  oi 
defective  title.  Voss  v.  Chamberlain,  ig: 
106,  117  N.  W.  269,  139  Iowa,  569. 

195.  The  substitution  by  a  bank  of  prom- 
issory notes  of  a  third  person  as  security 
for  the  debt  of  its  customer,  in  lieu  of 
other  collateral,  which  it  releases  to  the 
customer,  renders  it  a  purchaser  for  value. 
ZoUman  v.  Jackson  Irust  &  Sav.  Bank, 
32:  858,  87  N.  E.  297,  238  111.  290. 

VI.    Actions    and    defenses;    tnaturity ; 
extension  and  renewal. 

a.  In  general;  right  of  indorser  to  sue. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

First  objecting  on  appeal  to  form  of  action, 
see  Appeal  and  Error,   756. 

Waiver  of  objection  to  pleading,  see  Appeal 
AND  Error,  821. 

Complaining  for  first  time  on  appeal  of  fail- 
ure to  prove  presentment  and  notice, 
see  Appeal  and  Error,  772. 

Common  counts  in  action  against  indorser, 
see  Assumpsit,  6. 

Authority  of  attorney  to  enter  retraxit  in 
suit  on,  see  Attorneys,  49. 

Limitation  of  time  for  suit  on,  see  Con- 
flict OF  Laws,  149,  151,  152;  Limi- 
tation OF  Actions. 

Foreign  corporation's  right  to  sue  on,  see 
Corporations,  443. 

Including  attorney's  fees  provided  for  in 
note  in  determining  amount  in  contro- 
versy, see  Courts,  236,  237. 

Injunction  to  restrain  action  on  note  in 
other  state,  see  Courts,  288. 

Presumption  and  burden  of  proof,  see  Evi- 
dence, 197,  274,  279-281,  315. 

Presumption  from  taking  new  note,  see  Evi- 
dence, 585, 

Presumption  of  ownership  from  production 
of  non-negotiable  note  at  trial,  see  Evi- 
dence, 631. 

Evidence  in  action  on  note,  see  Evidence, 
1204,  1248,  1257,  1268,  1663,  1816,  1934. 

Prejudicial  error  in  exclusion  of  evidence, 
see  Appeal  and  Error,  1225. 

Variance  between  pleading  and  proof  in  ac- 
tion on,  see  Evidence,  2468. 

Digest  1-52  I^B.A.(N.S.) 


Effect  of  decree  in  injunction  suit  to  pre- 
vent collection  of  notes  on  right  to 
bring  action  at  law,  see  Judgment,  87. 

Confession  of  judgment  on,  see  Judgment, 
7,  8. 

Conformity  of  judgment  to  proof  in  action 
on,  see  Judgment,  45. 

Who  is  real  party  in  interest  entitled  to  sue 
on   promissory   note,   see   Parties,   54. 

Action  by  agent  on  notes,  see  Parties,  63. 

Assignee's  right  to  sue  on"  note,  see  Parties, 
99,  100.  ! 

Effect  of  assignment  on  indorser's  right  to 
sue,  see  Parties,  101,  102. 

Necessary  parties  to  cross  petition  by  mak- 
er for  seller's  breach  of  warranty,  see 
Parties,  168. 

Joint  judgment  against  maker  and  indor- 
sers  of  paper,  see  Parties,  196. 

Pleading  in  action  on,  see  Pleading,  8,  13, 
61,  131,  163,  170,  223,  244-249. 

Defendant's  pleading,  see  Pleading,  479, 
480. 

Right  of  maker  to  maintaiii  cross  bill  in 
action  on,  see  Pleading,  541. 

Set-off  in  action  on,  see  Set-Off  and  Coun- 
terclaim, I.  a,  3,  25,  26,  34,  37. 

Estoppel  to  plead  set-off  in  suit  on  note, 
see  Estoppel,  108. 

Proving  genuineness  of,  in  rebuttal,  see 
Trial,  31. 

Sufficiency  of  evidence  to  go  to  jury,  see 
Trial,  114,  119. 

Questions  of  law  and  fact,  see  Trial,  30  ', 
307. 

Direction  of  verdict,  see  Trial,  737-740. 

Demurrer  to  evidence,  see  Trial,  791. 

Instructions  in  action  on,  see  Trial,  847, 
848,  942,  1017-1019. 

Prejudicial  error  in  refusal  of  instruction, 
see  Appeal  and  Error,  1417. 

Conflict  of  findings  as  to  time  of  payment 
of,  see  Trial,  1138. 

Competency  of  witnesses,  see  Witnesses, 
42,  62. 

b.  Maturity;  extension;  renewal. 

(See   also   same   heading   in   Digest  L.R.A. 

1-70.) 

Effect  of  uncertainty  as  to  maturity  on  ne- 
gotiability, see  supra,  I.  d,  2. 

Rights  of  one  taking  assignment  of  note 
after  maturity,  see  supra,  126-130. 

196.  A  note  payable  on  demand  is  due 
within  a  reasonable  time  after  its  date. 
McAdams  v.  Grand  Forks  Mercantile  Co. 
47:  246,  140  N.  W.  725,  24  N.  D.  645. 

197.  Sixty- four  days  is  not  an  unreason- 
able time  within  which  to  elect  to  declare 
the  maturity  of  notes  for  default  in  pay- 
ment of  interest  which  is  payable  semi- 
annually. Lovell  V.  Goss,  22:  mo,  101  Pac. 
72,  45  Colo.  304. 

Extension  and  renewal. 

Consideration   for,   see  supra,  34-36. 

Acceptance  by  bank  of  qualified  indorse- 
ment on  renewal  of  note,  see  Banks, 
23. 


292 


BILLS  AND  NOTES,  VI.  c. 


Estoppel  in  suit  on  renewal  note  to  set  up 
forgery  of  original,  see  Estoppel,  23G. 

Failu.'e  to  recover  on  renewal  note  set  out 
in  one  count  as  bar  to  recover  on  orig- 
inal set  out  in  another,  see  Pleiading, 
8. 

Plea  of  mutual  mistake  in  giving  renewal 
note,  see  Pleading,  635. 

Effect  of,  to  release  pledge,  see  Pledge  and 

COLLATEBAL   SecUKITY,   14. 

Loss  of  collateral  by  treating  note  secured 
as    itself    collateral    for    new    note    for 
same  debt,  see  Pledge  and  Collatebal 
Secukity,  14. 
Ratification  by  payee  of  act  of  agent  in  ob- 
taining   renewal    note,    see    Pbincipal 
and  Agent,  86. 
Extension  of  time  for  payment  of  note  as 
■  discharging  sureties,  see  Pbincipal  and 
SuBEi'Y,  43-56. 
Renewing  notes   as   affirmance   of   contract, 
which   will   preclude  defense   of   fraud, 
see  Sale,  217. 
Usury  in  renewal  note,  see  Usury,  26. 
See  also  infra,  210. 

1!)8.  The  character  of  a  debt  represented 
by  a  note  given  without  authority  is  not 
changed  by  renewals  of  the  note.  Luther  v. 
Wheeler,  4:  746,  52  S.  E.  874,  73  S.  C.  83. 

199,  The  giving  of  a  renewal  note  has  no 
effect,  in  the  absence  of  an  agreement  there- 
for, to  discharge  either  the  makers  or  in- 
dorsers  of  the  original  obligation,  if  for  any 
reason  not  chargeable  to  the  wrong  or  fraud 
of  the  holder,  the  renewal  proves  to  be  in- 
valid. Farmers'  Sav.  Bank  v.  Arispe  Mer- 
cantile Co.  23:  889,  117  N.  W.  672.  139  Iowa, 
246. 

'200.  An  agent  who  takes  up  a  past-due 
note  with  money  furnished  by  the  maker 
cannot  give  such  note  validity,  as  a  nego- 
tiable instrument,  by  indorsing  thereon  an 
extension  of  time,  so  as  to  render  one  to 
whom  it  has  been  fraudulently  reissued  by 
such  agent  a  bona  fide  holder.  Thiel  v, 
Butker,  28:  1065,  51  So.  500,  125  La.  473. 

201.  The  maker  of  a  promissory  note 
•which  has  been  fraudulently  reissued  after 
juaturity  by  an  agent,  after  payment  thereof 
with  funds  furnished  by  the  maker,  is  not 
liable  on  the  dishonored  paper,  provided  he 
has  acted  in  good  faith.  Thiel  v.  Butker, 
28:  1065,  51  So.  500,  125  La.  473. 

202.  A  conditional  vendor  of  chattels  who 
reserves  title  until  payment  of  the  purchase 
money  waives  it  in  favor  of  an  intervening 
mortgage  from  the  vendee,  who  had  paid 
enough  to  give  him  an  interest  to  mortgage, 
by  taking  a  renewal  note  for  the  unpaid 
purcliase  money  without  reserving  title  at 
the  time  he  does  so.  Thornton  v.  Findley, 
33:  491,  134  S.  W.  627,  97  Ark.  432. 

( Annotated ) 

c.  Defenses. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Into.xication  as  defense,  see  supra,  13-16. 
As  to  consideration,  see  supra,  I.  c. 
Digest  1-52  I<.R.A.(N.S.) 


I  As  to  discharge  of  indorser,  sec  supra,  III. 

:  '^• 

As  to  notes  transferred  or  assigned,  see 
supra,   V. 

Who  may  sot  up  defense  in  action  on,  see 
Action  ob  Suit,  45. 

Alteration  of,  see  Alteration  of  Instbu- 
ments,  II. 

Plea  of  no7i  est  factum,  see  Appeal  and  Eb- 
BOR,  1380. 

Power  to  assign  note  free  from  defense  in 
hands  of  original  holder,  see  Assign- 
ment, 33. 

Validity  of  note  given  for  services  of  un- 
licensed   person,    see    Contracts,    421. 

Defense  of  duress,  see  Dubess,  8. 

Effect  of  statute  forbidding  deficiency  judg- 
ment on  note  secured  by  mortgage,  see 
Election  of  Remedies,  2. 

Estopi>el  by  negligence,  see  Estoppel,  184- 
191. 

Estoppel  in  suit  on  renewal  note  to  set  up 
forgery  of  original  note,  see  Estoppel, 
236. 

Burden  of  proof  as  to  mortgage  securing 
several,  see  Evidence,  670. 

Breach  of  parol  warranty  as  defense  to  ac- 
tion on  note,  see  Evidence,  945. 

Evidence  of  contemporaneous  parol  agree- 
ment in  action  on,  see  Evidence,  949. 

Secret  advantage  to  one  of  several  joint 
purcliasers  as  defense  in  action  on  note, 
see  Fraud  and  Deceit,  28. 

Right  of  accommodation  maker  of  note  to 
defeat  action  against  himself  because 
judgment  has  been  taken  againr;t  co- 
maker, see  Judgment,  207. 

To  action  on  judgment  of  other  state,  see 
Judgment,  285,  292. 

Allowance  of  counterclaim  against  one  of 
several  notes  as  preventing  use  of  same 
counterclaim  in  defense  of  action  on 
another  note,  see  Judgment,  189. 

When  statute  of  limitations  begins  to  run, 
see  Limitation   of  Actions,  124,  131. 

When  action  is  barred  by  statute  of  limita- 
tions, see  Limitation  of  Actions,  310, 
315,  317-324,  329. 

Effect  of  payment  or  promise  on  running 
of  limitations,  see  Limitation  of  Ac- 
tions, 310,  315,  317-324,   350,  351. 

Supplemental  pleading  to  set  up  defense, 
see  Pleading,  131. 

Necessity  of  pleading,  see  Pleading,  479. 

Sufficiency  of  allegations  as  to,  see  Plead- 
ing, 525.  529,  530. 

Sufficiency  of  plea  as  against  uemurrer,  see 
Pleading,  635. 

Collateral  security  for,  see  Pledge  and  Col- 
lateral Secubity,  27. 

Defense  of  sureties,  see  Principal  and  Sure- 
ty. 

Making  of,  on  Sunday,  see  Sunday,  22,  27. 

Usury  as  defense,  see  UsuBY,  II. 

See  also  supra,  97,  201. 

203.  Delay  in  enforcing  a  note  against 
one  maker  has  no  effect  to  release  a  co- 
maker, although  he  signed  out  of  accommo- 
dation to  the  principal  debtor.  Petty  v. 
Gacking,  33:  175,  133  S.  W.  832,  97  Ark. 
217. 


BILLS  AND  NOTES,  VI.  c. 


293 


204.  The  maker  of  a  promissory  note  may 
defeat  an  action  thereon  by  tlie  original 
payee  by  showing  that  it  was  executed  as 
a  premium  for  a  life  insurance  policy,  and 
tiiat  neither  policy  nor  note  was  to  be 
valid  unless  the  payee  secured  for  the  mak- 
er a  loan  upon  the  policy,  which  was  not 
done.  Smith  v.  Dotterweich,  33:  892,  93 
N.   E.   985,  200  N.   Y.   299. 

205.  One  not  an  officer  or  director  of  a 
national  bank,  who  executes  to  it  a  note  in 
furtlierance  of  a  scheme  to  deceive  the  bank 
examiner,  will  not  be  permitted,  after  tlie 
bank  has  passed  into  the  hands  of  a  re- 
ceiver, to  set  up  in  defense  of  his  liability 
tliereon  an  agreement  that  he  should  not 
be  held  liable.  Lyons  v.  Bennev.  34:  105, 
79  Atl.  250,  230  Pa.  117.  (Annotated) 
Fraud. 

As  against  ■transferees,  see  supra,  135,  146- 

150,  181,  182. 
Fraud  in  inducing  signing  of  note  without 

reading,  see  Contracts,  775. 
Affirmance  of  contract  which  will  preclude 

defense  of  fraud,  see  Sale,  217. 
Sufficiency   of   evidence   to   take   defense   of 

fraud  to  jury,  see  Tkial,  114. 

206.  One  induced  by  fraud  to-  sign  a 
promissory  note  which  is  represented  to  be 
mereh'  a  part  of  a  contract  of  a  different 
nature,  which  he  intends  to  sign,  and  which 
is  so  concealed  that  its  true  character  is  not 
discovered,  is  not  liable  thereon, — at  least  to 
one  not  a  bona  fide  holder, — in  the  absence 
of  such  negligence  on  his  part  as  will  estop 
him  from  asserting  his  defense.  Hulett  v. 
Marine  Sav.  Bank,  4:  1042,  106  N.  W.  879, 
143  Mich.  219. 

207.  Breach  by  the  payee  9f  an  agreement 
not  to  negotiate  a  promissory  note  until  the 
happening  of  a  certain  event  is  a  fraud  up- 
on the  maker.  McKnight  v.  Parsons,  22: 
718,  113  N.   W.  858,  136  Iowa,  390. 

208.  In  the  absence  of  any  proof  that  the 
signer  of  a  subscription  note  sued  upon,  is 
unable  to  read,  an  answer  which  admits  the 
execution  thereof,  but  alleges  misrepresen- 
tations by  the  person  procuring  it  concern- 
ing the  conditions  and  the  extent  of  the  lia- 
bility to  be  incurred  by  the  maker,  does  not 
constitute  a  sufficient  defense,  where  the 
terms  of  the  note  are  plain  and  unambigu- 
ous. Guthrie  &  VV.  R.  Co.  v.  Rhodes,  21: 
490,  91  Pac.  1119,   19  Okla.  21. 

209.  An  agent  of  an  insurance  company 
who  procures  an  illiterate  person  to  take 
out  a  policy  of  insurance  on  his  life,  at  the 
time  representing  that  he  would  procure  a 
policy  of  a  particular  kind,  and  who  after- 
wards obtains  the  issuance  of  a  policy  vary- 
ing materially  from  the  one  promised  and 
agreed  upon,  which  •  substituted  policy  is 
received  and  retained  by  the  holder  for  a 
period  of  five  months  before  discovery  of 
the  fraud,  but  which  is  then  promptly  re- 
turned to  the  agent,  cannot  recover  on  the 
note  given  him  for  the  premium  on  the 
policy  contracted  for,  where  the  holder  of 
the  policy  relied  upon  the  representations 
and  promises  made  at  the  time  the  contract 
for  the  policy  was  made.  Summers  v.  Alex- 
ander, 38:  787,  120  Pac.  601,  30  Okla.  198. 
Digest  1-52  L.R.A.(N.S.) 


210.  The  execution  of  renewal  notes  be- 
fore discovery  that  the  execution  of  tlio 
original  notes  was  induced  by  the  fraud 
of  the  payee  does  not  coiistituto  a  waiver 
of  that  fraud.  Gilpin  v.  Nettograph  Ma- 
chine Co.  29:  477,  108  Pac.  382,  25  Okla. 
408. 

Payment   or   extinguisliinent. 
To  whom  payment  may  be  made,  see  Pay- 
ment,  10-18. 
Place  of  payment,  see  Payment,  24. 
See  also  supra,  81. 

210a.  A  stranger  who  pays  the  amount  of 
a  note  and  receives  a  delivery  of  it  to  him- 
self will  be  held  to  be  a  purchaser  until  an 
intention  to  the  contrary  appears.  John- 
ston V.  Schnabaum,  17:  838,  109  S.  W.  1163, 
86    Ark.    82. 

211.  Although  a  note  reduced  to  judg- 
ment is  merged  therein,  and  cannot  be 
made  the  basis  of  a  subsequent  action,  the 
merger  and  extinguishment  thereof  neither 
discharges  the  debt  nor  extinguishes  a  mort- 
gage securing  the  note.  Rossiter  v.  Merri- 
nuui,  24:  1095,  104  Pac.  858,  80  Kan.  739. 
Waiver   of  limitations. 

212.  No  waiver  of  the  right  to  reiy  on 
the  statute  of  limitations  to  bar  a  recov- 
ery on  a  note  is  sliown  by  a  written  state- 
ment of  nonintention  to  rely  upon  it,  accom- 
panied by  an  offer  of  a  new  note  to  renew 
the  obligation,  if  the  holder  refuses  to  ac- 
cept it.  Gray  v.  Day,  43:  535,  84  Atl.  1073, 
109  Me.  492. 

Want   or   failure   of   consideration. 

Effect  of,  on  rights  and  liabilities  of  trans- 
feree, see  supra,  133-137,  146. 

Burden  of  proving  consideration,  see  Evi- 
dence, 279. 

Burden  of  proving  absence  or  failure  of  con- 
sideration, see  Evidence,  588,  589. 

Admissibility  of  evidence  on  question  of, 
see  Evidence,  1663,  1934. 

Necessity  of  pleading  failure  of  considera- 
tion, see  Pleading,  479. 

Sufficiency  of  allegations  as  to,  see  Plead- 
ing, 529, 

213.  Want  of  consideration  is  a  defense 
to  the  enforcement  of  a  note  bj'  the  payee 
against  the  maker,  although  it  purports  on 
its  face  to  have  been  given  for  value  re- 
ceived. State  Bank  v.  Forsyth,  28:  501,  108 
Pac.  914,  41  Mont.  249. 

214.  Payment  of  a  promissory  note  can- 
not be  avoided  on  the  ground  of  failure  of 
consideration,  where  the  answer  and  proofs 
admit  that  there  was  not  a  total  failure  of 
consideration  and  that  the  maker  in  fact 
received  and  retains  a  part  of  the  agreed 
consideration.  Daniels  v.  Englehart,  39: 
938,  111  Pac.  3,  18  Idaho,  f4S. 

(Annotated) 

215.  The  maker  of  a  note  as  to  which 
there  has  been  a  partial  failure  of  consid- 
eration, in  order  to  obtain  relief,  must 
either  rescind  the  contract  and  return  the 
consideration  received,  or  claim  damages 
for  breach  of  the  contract,  or  pursue  some 
remedy  whereby  the  holder  of  the  note  may 
be  enabled  to  receive  just  compensation  for 
the   part   of  the  consideration   which   actu- 


294 


BILLS  OF  DISCOVERY— BILLS  OF  LADING. 


ally  passed.     Daniels  v.  Englehar*:,  39:  938, 
111   Pae.  3,   18  Idaho,  548. 

216.  The  maker  of  a  negotiable  note  exe- 
cuted in  consideration  of  an  executory 
contract  for  the  sale  of  goods  may  defeat 
or  limit,  on  the  theory  of  failure  of  con- 
sideration, in  whole  or  in  part,  the  amount 
of  the  recovery  thereon  in  an  action  brought 
against  him  by  the  payee  after  maturity, 
by  proving,  in  case  the  title  to  the  prop- 
erty purchased  passed,  a  total  unexcused 
nonperformance  on  the  part  of  the  vendor 
of  his  contract  to  deliver  the  property,  or 
loss  on  the  part  of  the  vendee  of  the  benefit 
of  the  contract,  occasioned  by  want  of  title 
in  the  vendor;  or,  where  the  title  did  not 
pass  at  the  time  of  making  the  contract,  by 
proving  a  refusal  of  the  vendee  to  accept 
the  property,  and  notice  of  his  intention 
not  to  do  so,  before  the  title  passed.  Acme 
Food  Co.  V.  Older,  17:  807,  61  S.  E.  235,  64 
W.  Va.  255. 

217.  One  who,  to  release  an  attachment 
of  his  automobile  for  a  repair  bill  gives 
his  promissory  note  for  the  amount  of  the 
bill,  cannot,  in  a  suit  on  the  note,  set  up 
a  failure  of  consideration  because  the  re- 
pairs were  not  properly  made.  Kendall 
V.  Rossi,  45:  985,  87  Atl.  186,  35  R.  I.  451. 

218.  In  case  a  note  is  given  for  the  good 
will  of  a  business  and  the  agreement  of  the 
sellers  not  to  compete  for  a  certain  time 
with  the  buyer,  the  consideration  is  severa- 
ble ;  and  a  breach  by  entering  into  a  compet- 
itive business  does  not  destroy  a  right  of 
action  on  the  note.  Bradford  v.  Montgom- 
ery Furniture  Co.  9:  979,  92  S.  VV.  1104,  115 
Tenn.  610. 

219.  Enforcement  cannot  be  had  of  a  note 
given  for  the  purchase  price  of  realty, 
"subject  to  the  clearing  of  the  title"  to  lots 
which  were  held  by  tax  deed,  although  the 
grantor  had  a  good  title,  if  an  action  to 
quiet  the  title  failed  as  to  one  of  the  lots. 
Pease  v.  Globe  Realty  Co.  42:6,  119  X,  W. 
975,  141  Iowa,  482. 

220.  No  recovery  can  be  had  by  the  payee 
upon  a  note  given  for  the  purchase  price 
of  a  patent  right,  if  the  patented  article 
is  not  reasonably  suited  to  the  uses  for 
which  it  was  made.  Nettograph  Machine 
Co.  V.  Brown,  34:  737,  114  Pac.  1102,  28 
Okla.   436. 

Illegal  consideration. 

As  against  transferees,  see  supra,  154-156. 

Estoppel  to  set  up  illegal  consideration,  see 
Estoppel,  168,  169. 

Parol  evidence  as  to,  see  Evidence,  990, 
991. 

Evidence  of  admission  as  to  nature  of  con- 
sideration, see  Evidence,  1248. 

Sufficiency  of  allegations  as  to,  see  Plead- 
ing, 525. 

221.  One  advancing  money  upon  a  note  is 
not  estopped  to  recover  upon  the  note  by  the 
fact  that  the  money  was  used  to  corrupt 
voters  at  an  election,  if  he  did  not  know  that 
the  monev  was  to  be  so  used.  Hale  v.  Har- 
ris, 5:  295,  91  S.  W.  660,  28  Ky.  L.  Rep.  1172. 

222.  A  note  given  for  the  purchase  price 
of  fertilizer  sold  without  inspection  and 
registration  cannot  be  enforced  by  the 
Digest  1-52  I<.R.A.(N.S.) 


payee  where  the  statute  makes  a  sale  of 
fertilizer,  under  such  circumstances,  a  mis- 
demeanor. Florence  Cotton  Oil  Co.  v.  An- 
glin,  43:1109,  152  S.  W.  295,  105  Ark.  672. 

( Annotated ) 


BILLS    OF   DISCOVERY. 

See  DiscovEBY  and  Inspection. 


#•» 


BILLS  OF  EXCEPTION. 

On  appeal,  see  Appeal  and  Error,  IV.  o. 


BILLS   OF   EXCHANGE. 

Payment  by  bank  of  forged  bill  of  exchange, 

see  Banks,  113. 
Parol  evidence  to  show  relation  of  parties 

to,   see   Evidence,   1000. 
In  general,  see  Bills  .\nd  Notes. 


BILLS    OF    LADING. 

Charging  more  than  amount  fixed  by,  see 
Carriers,  874-876. 

Penciled  memorandum  on,  that  horses  are 
to  be  unloaded  for  feeding  at  certain 
places,  see  Carriers,  888. 

Rights  of  holder  of,  against  carriers,  see 
Carriers,  III. 

Parol  evidence  to  vary  terms  of,  see  Evi- 
dence, 922. 

Effect  of  mailing  of  bill  of  lading  as  a  de- 
livery of  goods  sold,  see  Sale,  33. 

Instruction  in  action  for  losses  due  to  is- 
suance of  fictitious  bills  of  lading,  see 
Trial,  1009. 

Recovery  back  of  amount  paid  on  draft 
attached  to,  see  Assumpsit,  36. 

Effect  of  paying  draft  with  bill  of  lading 
attached  on  forged  indorsement,  see 
Bills  and  Notes,  75. 

With  draft  attached,  place  of  sale  of  prop- 
ertv  shipped  under,  see  Conflict  of 
Laws,   112,   113. 

With  draft  attached,  opinion  evidence  as 
to  seller's  intention,  see  Evidence, 
1158. 

Garnishment  of  proceeds  of  draft  attached 
to  bill  of  lading  for  goods  sold,  see 
Garnishment,  1,  56. 

Criminal  liabilitv  of  collector  of  draft  at- 
tached to  bill  of  lading  for  liquor,  see 
Intoxicating  Liquors,  97. 

With  draft  attached,  reservation  of  title  in 
consignor,  see  Sale,  22. 

Attached  to  draft,  see  also  Bills  and 
Notes,  10. 

1.  A  bill  of  lading  does  not  occupy  the 
position  of  a  bill  of  exchange  or  other  com- 
mercial paper.    Franklin  Trust  Co.  v.  Phila- 


BILLS  OF    LADING. 


295 


delphia,  B.  W.  &  R.  Co.  22:  828,  70  Atl.  949, 

222   Pa.   9G. 

Negotiability    and    transfer. 

2.  Under  an  agreement  by  which  a  bank 
is  to  discount  dralts  for  the  purciiasc  price 
of  commodities  sold,  to  whicli  are  attached 
the  bills  of  lading,  credit  the  seller  with  a 
certain  percentage  of  the  price,  and  retain 
tlie  balance  to  cover  interest  and  expenses, 
crediting  the  unused  balance  to  the  seller, 
tlie  title  to  the  property  covered  by  the 
bill  of  lading  passes  to  tlie  bank  when  the 
discount  occurs  and  the  bill  of  lading  is 
transferred,  so  that  it  is  no  longer  subject 
to  attachment  for  the  seller's  debts.  Ameri- 
can ihresherman  v.  De  'i amble  Motors  Co. 
49:  644,   141   N.  W.  210,  154  Wis.  36(5. 

(Annotated) 
3.  The  drawee  in  a  draft  against  a  bill 
of  lading  which  has  been  credited  by  a 
bank  to  the  drawer  upon  transfer  of  the 
bill  of  lading  to  the  bank,  and  checked 
against,  cannot,  upon  paying  it  and  receiv- 
ing the  bill  of  lading,  attach  the  proceeds 
for  the  recovery  of  a  claim  against  the 
drawer,  since  the  title  thereto  is  in  the 
bank.  Ladd  &  Tiltoji  Bank  v.  Commercial 
State  Bank,  49:  657,  130  Pac.  975,  04  Or. 
486.  (Annotated) 

4.  A  state  statute  providing  that  '"all 
.  .  .  bills  of  lading  .  .  .  issued  .  .  . 
by  any     .     .     .     railroad     .     .     .     company 

shall  be  negotiable  by  written  in- 
dorsement thereon  and  delivery  in  the  same 
manner  as  bills  of  exchange  and  'promis- 
sory notes,"  enacted  in  a  state  in  which 
such  bills  of  lading  are  already  negotiable 
in  the  sense  of  being  transferable  by  in- 
dorsement and  delivery  so  as  to  enable  an 
assignee  to  sue  in  his  own  name,  makes 
such  bills  of  lading  negotiable  in  the  stricter 
meaning  of  the  term,  so  that  a  railroad 
company  is  bound  by  such  a  bill  of  lading 
which  has  passed  into  the  hands  of  an 
innocent  purchaser,  although  no  goods  were 
in  fact  received  by  it.  Sealy  v.  Missouri, 
K.  &  T.  R.  Co.  41:  500,  114  Pac.  1077,  84 
Kan.  479. 

Rights  and   liabilities   of  transferee. 
Validity  of   statute  making  statements   in, 
conclusive  in  favor  of  bona  fide  holder, 
see    Commerce,     75;     Constitutional 
Lavp,  626. 
Change  of  rule  as  to   liability  of  assignee 
of  bill  of  lading  as  security  for  draft, 
see  Courts,  301. 
Burden    of    explaining    alterations    in,     see 

Evidence,  603. 
Garnishment  of  proceeds  of  draft  with  bill 
of  lading  attached,  see  Garnishment, 
1. 
Right  of  transferee  who  is  to  be  notified 
of  arrival  of  goods  consigned  to  anoth- 
er to  maintain  action  against  carrier, 
see  Parties,  8. 

5.  A  railroad  company  cannot  escape  the 
effect  of  a  statute  making  the  iicknowiedg- 
ment  of  the  receipt  of  property  for  trans- 
portation, contained  in  a  bill  of  lading, 
conclusive  evidence  of  the  fact  in  favor  of 
bona  fide  holders  thereof,  by  placing  upon 
such  bills  the  statement  that  the  weights 
Digest   1-52  L.R.A.(N.S.) 


are  subject  to  correction.  Yazoo  &  M.  V. 
R.  Co.  V.  Bent,  22:  821,  47  So.  805,  94  Miss. 
681. 

6.  The  rule  that  a  railroad  company  is 
bound  by  a  bill  of  lading  which  has  passed 
into  the  hands  of  an  innocent  purchaser, 
altliough  no  goods  were  in  fact  received 
by  it,  is  not  altered  by  the  fact  that  a 
statute  makes  it  a  criminal  offense  for  any 
agent  of  a  railroad  company  to  issue  a 
bill  of  lading  unless  the  goods  have  ac- 
tually been  received.  Sealy  v.  Missouri, 
K.  &  T.  R.  Co.  41:  500,  114  Pac.  1077,  84 
Kan.  479.  (Annotated) 

7.  A  bill  of  lading  issued  by  a  carrier 
whifch  actually  receives  goods  from  the 
shipper  is  conclusive  in  favor  of  the  con- 
signee to  whom  it  is  transferred  for  value, 
tluit  the  carrier  received  tlie  quantity  called 
for  therein.  Thomas  v.  Atlantic  C.  L.  R. 
Co.  34:  1177,  64  S.  E.  220,  67  S.  E.  908,  85 
S.    C.   537.  (Annotated) 

8.  An  assignee  of  a  bill  of  lading  as  col- 
lateral security  for  a  draft  upon  the  con- 
signee of  property  represented  by  it,  which 
he  discounts,  is  not  liable  for  breach  of  war- 
ranty by  the  consignor  in  the  sale  of  the 
property.  Mason  v.  Nelson,  18:  1221,  62  S. 
E.  625,  148  X.  C.  492.  (Annotated) 

9.  That  the  holder  of  a  bill  of  lading 
which  he  has  taken  as  collateral  security 
for  a  draft  on  the  consignee  of  the  property, 
which  he  has  discounted,  refus'es  to  permit 
the  consignee  to  examine  the  goods  without 
paying  the  draft,  does  not  bring  him  under 
the  obligations  of  the  contract,  so  as  to 
render  him  liable  for  breach  of  warranty  in 
the  sale.  Mason  v.  Nelson,  18:  1221,  62  S. 
E.  625,  148  N.  C.  492. 

10.  Where  the  seller  of  goods  ships  them 
and  makes  a  draft  upon  the  purchaser,  with 
the  bill  of  lading  attached,  one  who  buys  the 
draft  and  receives  payment  thereof  from 
the  drawee  is  not  liable  for  the  return  of 
any  portion  of  the  proceeds  on  account  of 
any  defect  in  the  quality  of  the  goods;  and 
it  is  immaterial  that  the  draft  was  bought 
in  reliance  upon  a  written  guaranty  of  its 
payment,  in  which  the  bill  of  lading  was 
described  as  covering  goods  of  a  designated 
quality.  Central  Mercantile  Co.  v.  Okla- 
homa State  Bank,  33:  954,  112  Pac.  114,  83 
Kan.  504. 

11.  The  purchase  of  a  draft  attached  to 
a  bill  of  lading  does  not  transfer  title  to 
the  goods,  so  as  to  render  the  purchaser  of 
the  draft  responsible  upon  the  contract  in 
accordance  with  which  the  property  was 
shipped.  Lewis  v.  W.  H.  Small  &  Co.  6:  887, 
96  S.  W.  1051,  117  Tenn.  153. 

12.  A  bank  which  purchases  a  draft  with 
bill  of  lading  attached  making  the  goods 
deliverable  to  the  order  of  the  consignor 
assumes  the  obligation  of  the  seller  to  de- 
liver, according  to  contract,  the  property 
represented  by  the  bill  of  lading,  to  the 
drawee  of  the  draft.  Haas  v.  Citizens' 
Bank,  i:  242,  39  So.  129,  144  Ala.  562. 

(Annotated) 

I        13.  PajTnont  of  a  draft  which  is  drawn 

I  for  the  price  of  goods,  and  attached  to  the 

bill  of  lading,  to  the  bank  which    has  .  pur- 


298 


BILLS  OF  PARTICULARS— BISHOP. 


chased  it,  does  not  absolve  the  bank  from 
its  duty  to  deliver  the  property  represented 
by  the  bill  of  lading.  Haas  v.  Citizens' 
Bank,  i:  242,  39  So.  129,  144  Ala.  562. 

14.  The  mere  fact  that  a  bank,  in  pur- 
chasing dratts  with  bills  of  lading  attaclied, 
stamped  upon  some  of  tlieni  a  clause  absolv- 
ing itself  from  liability  for  the  property 
covered  by  the  bills  of  lading,  does  not  indi- 
cate an  intention  to  assume  such  liability 
as  to  drafts  not  so  stamped.  Lewis  v.  W. 
H.  Small  &  Co.  6:  887,  96  S.  W,  1051,  117 
Tenn.   153. 

15.  One  who  pays  a  draft  drawn  upon 
him  with  his  authorization,  in  the  belief 
that  a  forged  bill  of  lading  attached  thereto 
is  genuine,  must  bear  the  loss,  and  is  not 
entitled  to  recover  the  amount  of  the  draft 
from  a  bank  which  discounted  it  and  then 
forwarded  it  for  collection.  Varney  v.  Mon- 
roe Nat.  Bank,  13:337,  44  So.  753,  119  La. 
943. 

16.  A  bank  that  receives,  without  notice 
or  suspicion  of  wrongdoing,  a  draft  from  the 
drawer  for  collection,  and,  after  obtaining 
payment  of  it  from  the  drawee,  pays  the 
proceeds  over  to  the  drawer  in  good  faith, 
is  not  liable  to  the  drawee  in  damages,  al- 
though the  latter  made  payment  without 
consideration  and  in  reliance  upon  a  forged 
bill  of  lading  which  the  drawer  had  attaclied 
to  and  caused  to  be  forwarded  with  the 
draft.  Nebraska  Hay  &  G.  Co.  v.  First  Nat. 
Bank,  9:  251,  110  N.  W.  1019,  78  Neb.  334. 

17.  A  bank  which  discounts  a  draft  with 
bill  of  lading  attached  is  not,  in  the  absence 
of  bad  faitn,  answerable  to  the  drawee  tor 
the  performance  of  the  consignor's  contract. 
HawKins  v.  Alfalfa  Products  Co.  44:  600, 
153  S.  W.  201,  152  Ky.  152. 

18.  A  bank  which,  as  indorsee  and  inno- 
cent holder  for  value  of  a  draft  with  bill  of 
lading  attached,  but  not  mentioned  in  the 
draft,  collects  the  same  from  the  drawee,  is 
not  bound  to  return  the  proceeds  if  the  bill 
of  lading  proves  to  be  forged,  although  the 
drawee  relies  more  or  less  upon  it  in  making 
the  payment.  Springs  v.  Hanover  Nat. 
Bank,  52:  241,  103  N.  £..  156,  209  N.  Y.  224. 

(Annotated) 

19.  A  bank  which  cashes  a  draft  in  its 
favor,  with  bill  of  lading  attached,  is  not 
liable  to  the  consignee  who  pays  the  drait 
upon  presentation,  for  shortage  or  inferior- 
ity of  quality  in  the  shipment.  Cosmos 
Cotton  Co.  V.  First  Nat.  Bank,  32:  1173, 
54  So.  621,  171  Ala.  392.  (Annotated) 


BILLS  OF  PARTICUIJ^RS. 

See  Pleading,  I.  L 


BILLS   OF   REVIETV. 


BILLS   OF  RIGHTS. 

See  Constitutional  Law. 

♦-•-♦ • 

BINDING. 

Statute  requiring  all  county  binding  to  be 
done  within  county,  see  Comme^jce,  7; 
Constitutional  Law,  454;  Con- 
TBAcrs,  802. 

Mandamus  to  compel  award  of  state  bind- 
ing to  bidder,  see  Mandamus,  28. 


BINDING  SLIP. 


Effect  of  false  representations  in  applica- 
tion for  insurance  on  binding  slip,  see 
Insurance,  314. 


BIPARTISAN   COMMISSION. 

Validit}'^  of  statute  providing  for,  see  Con- 
stitutional  Law,    173,    174. 


■♦•» 


BIRDS. 

See  Game  and  Game  Laws. 

♦-»♦ 


See  Review. 

Digest  1-52  L.R.A.(N.S.) 


BIRTH. 

Evidence  on  question  of,  see  Appeal  and 
Ebbob,  1166. 

Validity  of  statute  as  to  registration  of, 
see  Constitutional  Law,  638. 

Equitable  jurisdiction  to  cancel  certificate 
of,  see  Eqihty,  82,  83. 

Proof  of,  by  general  repute,  see  Evidence, 
2212. 

Injunction  against  use  of  fraudulent  cer- 
tificate of,  see  Injunction,  103,  174. 

Revocation  of  will  by  birth  of  child,  see 
Wills,  56,  67. 


BIRTH  CERTIFICATE. 

Injunction    agp,inst    wrongful    use    of,    see 
iNJxmcnoN,  103,  174. 


BISHOP. 

Liability  of  bishop  having  spiritual  au- 
thority over  school  from  which  child  ia 
kidnapped,  for  refusal  to  coerce  confes- 
sion from  school  authorities,  see  Ab- 
duction   AND    KinNAPPING,    4. 


BITCH— BLASTING. 


297 


BITCH. 

Actionability  of  charge  of  being,   see  Libel 
AND  Slander,  39. 


BLACKBOARDS. 


Blackboard  announcements  as  to  trains, 
see  Carriers,  II.  n. 

In  bucket  shop  as  gambling  device,  see  Con- 
tracts, 594. 


BLACKLISTING. 


Presumption  of  injury  from,  see  Evidence, 
32]. 

Evidence  in  action  for,  see  Evidence,  1367, 
2322. 

Charge  of,  as  libel,  see  Libel  and  Slander, 
20. 

Libel  by,  see  Libel  and  Slander,  121. 

Liability  for,  of  persons  subsequently  com- 
ing into  business,  see  Partnership,  32. 

As  to  extortion,  see  Extortion. 

See  also  Master  and  Servant,  899. 

1.  The  provision  of  Minn.  Rev.  Laws 
1905,  §  5097,  declaring  it  unlawful  for  two 
or  more  employers  of  labor  to  combine  or 
confer  together  for  the  purpose  of  prevent- 
ing any  person  from  procuring  employment, 
applies  to  employers  as  a  class,  operates 
equally  upon  all,  and  therefore  is  not  ob- 
noxious to  constitutional  principles.  Joyce 
V.  Great  Northern  R.  Co.  8:756,  110  N.  W. 
975,   100   Minn.   225. 

2.  If  one  employer  by  conference  with 
another  employer  prevents,  without  excuse 
or  justification  and  with  a  malicious  motive 
or  purpose,  a  third  person  from  procuring 
employment  with  such  other  employer,  he  is 
liable  for  damages  under  Minn.  Rev.  Laws 
1905,  §  5097,  providing  that  it  shall  be  un- 
lawful for  any  two  or  more  employers  to 
combine  or  confer  together  for  tlie  purpose 
of  preventing  any  person  from  obtaining  em- 
plovment.  Joyce  v.  Great  Northern  R.  Co. 
8:  756,  110  N.  W.  975,  100  Minn.  225. 

3.  The  acts  of  a  railroad  company 
whereby  another  company  is  induced  to  re- 
fuse employment  to  a  track  repairer,  except 
upon  the  condition  that  he  release  the  form- 
er company  from  all  claim  for  damages  on 
account  of  an  injury  sustained,  are  in  vio- 
lation of  Minn.  Rev.  Laws  1905,  §  5097, 
forbidding  employers  of  labor  from  combin- 
ing or  conferring  together  for  the  purpose 
of  preventing  any  person  from  procuring 
employment,  and,  if  unexplained  by  matters 
in  justification,  constitute  an  actionable  tort. 
Joyce  v.  Great  Northern  R.  Co.  8:  756,  110 
N.  W.  975,  100  Minn.  225. 

4.  The  blacklisting  of  discharged  em- 
ployees by  a  combination  of  employers  is 
not  actionable  without  proof  of  damage. 
Willner  v.  Silverman,  24:  895,  71  Atl.  962, 
109  Md.  341. 

5.  The  circulation  of  a  letter  by  an 
Digest  1-52  L.R.A.(N.S.) 


employer  who  has  discharged  an  employee, 
through  the  instrumentality  of  an  organiza- 
tion of  employers  of  which  the  employer 
is  a  member,  which  does  not  state  the 
cause  of  the  discharge  with  strict  accuracy, 
but  which  requests  the  association  to  refuse 
employment  to  the  discharged  employee, 
"as  we  would  like  to  make  an  example  of 
him,",  is  actionable  if  damage  results 
therefrom.  Willner  v.  Silverman,  24:  895, 
71  Atl.  962,  109  Md.  341. 


BLACKMAIL. 

As  to  extortion,  see  Extortion. 


BLANKET   BALLOT. 

Discrimination  in,  see  Elections,  37. 


*    BLANKS. 

Necessity  of  reacknowledgment  after  filling 
blank  in  deed,  see  Acknowlehkjment, 
9. 

Alteration  of  instrument  by  filling  blanks, 
see  Alteration  of  Insiruments.  7,  8, 
21,  22. 

In  notes,  see  Bills  and  Notes,  4,  118.  188; 
Evidence,  828. 

Filling  blanks  in  bond,  see  Bonds,  4. 

Presumption  of  authority  to  fill,  see  Evi- 
dence, 169. 

In  sealed  instrument,  presumption  as  to 
intent  to  fill,  see  Evidence,  229. 

In  mortgage,  see  Mortgages,  19. 

Right  of  innocent  purchaser  as  against  one 
executing  deed  in  blank,  see  Records 
AND  Recording  Laws,  45. 


BLASPHEMY. 

As  to  profanity,  see  Profanity. 


BLASTING. 


Action  on  the  case  for  injuries  to  buildings 
by,  see  Case,  22. 

Punitive  damages  for  injury  by,  see  Dam- 
ages, 67. 

Death  resulting  from  fright  caused  by,  see 
Death,  41. 

Injury  to  property  by,  as  a  taking  for  pub- 
lic use,  see  Eminent  Domain,  183,  187. 

Destruction  of  well  by,  see  Evidence,  1073; 
Proximate  Cause,  29;   Trial,  87. 

Relevancy  of  evidence  as  to  negligence  in, 
see  Evidence,  1808. 

Injuries  resulting  from  fright ,  caused  by, 
see  Fright,  4. 

Negligence  as  to,  causing  injury  on  high- 
way, see  Highways,  205. 


298 


BLINDNESS. 


Wife's  right  of  action  .for  injury  to  prop- 
erty and  health  bv,  see  IIusband  and 
Wife,  174. 

Injunction  against,  see  Injunction,  175. 

Injury  from  discharge  of  automatic  fire 
extinguisher  caused  by,  see  Insurance, 
685. 

Duty  of  master  to  inspect  after  blasting, 
see  Master  and  Servant,  441.  • 

Injury  to  servant  by,  see  Master  and 
Servant,  233,  234,  457,  511,  516,  563, 
564,  787,  792;  Trul,  498,  528. 

Liability  for  negligence  of  independent  con- 
tractor in,  see  Master  and  Servant, 
998,  1014-1016. 

Liability  of  municipality  for  damages 
caused  by,  see  Municipal  Corpora- 
tions, 345-348. 

As  nuisance,  see  Nuisances,  53. 

Question  for  jury  as  to  negligence  in,  see 
Trial,  127,  473. 

Injury  to  person  or  property  on  ad- 
Joining  land. 

1.  Negligence  need  not  be  shown  to  ren- 
der one  who  uses  upon  his^  own  premises 
such  heavy  charges  of  explosives  in  blast- 
ing that  he  destroys  his  neighbor's  well, 
liable  for  the  injury.  Patrick  v.  Smith, 
48:  740,  134  Pac.  1076,  75  Wash.  407. 

2.  That  persons  who  destroyed  a  neigh- 
bor's well  by  blasting  were  engaged  in  con- 
structing a  roadbed  for  a  railroad  does 
not  relieve  them  from  liability  for  the  in- 
jury, if  it  does  not  appear  that  the  grading 
operations  necessarily  interfered  with  the 
water  which  supplied  the  well.  Patrick  v. 
Smith,  48:  740,  134  Pac.  1076,  75  Wash.  407. 

3.  One  engaged  in  blasting  on  his  own 
property  is  not  liable  for  injury  to  a  black- 
smith employed  on  neighboring  property, 
by  the  plunging  of  a  horse  which  he  is  at- 
tempting to  shoe  when  frightened  by  a 
blast,  of  which  the  blacksmith  had  not  been 
notified,  although  upon  his  request  the  for- 
mer had  been  accustomed  to  notify  him 
when  a  blast  was  to  be  exploded,  so  that  he 
might  protect  himself.  Hieber  v.  Central 
Kentucky  Traction  Co.  36:  54,  140  S.  W. 
54,  145  Ky.  108.  (Annotated) 

4.  Negligence  need  not  be  shown  to  ren- 
der one  blasting  in  a  tunnel  liable  for  in- 
juries to  the  buildings  on  neighboring  prop- 
erty through  vibration  caused  by  the  blasts, 
although  no  material  is  thrown  upon  the 
property,  so  that  there  is  no  actual  break- 
ing of  the  close.  Hickey  v.  McCabe,  27:  425, 
75  Atl.  404,  30  R.  I.  346.  (Annotated) 

5.  The  casting  by  blasting  operations 
necessary  for  the  construction  of  a  rail- 
road, of  dihris  upon  the  remaining  land  of 
one  from  whom  the  corporation  lias  ac- 
quired a  right  of  way,  renders  it  liable  in 
damages  for  the  trespass,  regardless  of  the 
negligence  or  skill  with  which  it  did  the 
work.  Langhorne  v.  Turman,  34:  211,  133 
S.  W.  1008,  141  Ky.  809.  (Annotated) 

6.  That  one  attempting  to  use  dynamite 
in  blasting  without  smothering  the  blasts 
cannot  foresee  the  exact  consequences  of  hia 
act  does  not  absolve  him  from  liability  for 
an  injury  to  an  occupant  of  neighboring 
Digest  1-52  I..R.A.(N.S.) 


property,  where  the  neighborhood  is  popu- 
lous, and  he  ought,  in  the  exercise  of  ordi- 
nary care,  to  know  that  he  is  subjecting 
the  occupants  of  the  dwellings  in  the  vicin- 
ity to  danger.  Ivimberly  v.  Ilowland,  7:  545, 
55  S.  E.  778,  145  N.  C.  398. 

7.  One  engaged  in  blasting  on  his  own 
property  is  not  liable  for  injuries  to  a  neigh- 
bor from  mere  concussion  of  the  air,  sound, 
or  otherwise,  unless  the  work  was  done  neg- 
ligently, and  the  injury  was  the  result  of 
the  negligence.  Bessemer  Coal.  Iron.  &  Land 
Co.  V.  Doak,  12:  389,  44  So.  627,  152  Ala.  166. 

(Annotated) 

8.  A  railroad  company  is  not  relieved 
from  liability  for  injuries  to  adjoining 
property  and  the  health  of  its  occupants 
by  blasting  for  its  right  of  way,  by  the 
fact  that  it  is  a  quasi  public  corporation 
authorized  by  the  legislature  to  condemn, 
take,  and  use  land  for  railroad  purposes 
and  works  of  public  improvement,  even  if 
the  work  can  be  and  is  done  without  negli- 
gence. Gossett  V.  Southern  R.  Co.  i :  97, 
89  S.  W.  737,  115  Tenn.  376.       (Annotated) 

9.  Blasting  which  causes  loud  noises 
and  unusual  and  unpleasant  concussions  of 
air,  and  renders  adjoining  property  un- 
tenantable by  reason  of  the  fact  that  its 
occupants  are  inconvenienced,  frightened, 
and  made  restless  and  that  their  health  is 
affected,  is  a  nuisance.  Gossett  v.  South- 
ern R.  Co.  1:97,  89  S.  W.  737,  115  Tenn. 
376. 

Criminal  liability. 

10.  It  is  not  necessary  for  a  member  of 
a  partnership  which  is  conducting  a  quar- 
rying business,  to  assent  in  his  partnership 
capacity  to  the  firing  of  a  blast  in  viola- 
tion of  a  municipal  ordinance,  to  render 
himself  criminally  liable  for  such  violation. 
Spokane  v.  Patterson,  8:  1104,  89  Pac.  402, 
46  Wash.  93. 

11.  Liability  for  violating  a  municipal 
ordinance  against  firing  uncovered  blasts 
is  not  avoided  by  the  fact  that  the  blast 
was  intended  for  a  spring  shot  rather  than 
a  blast  proper,  if  the  shot  burst  from  the 
hole,  hurling  pieces  of  rock  to  a  great  dis- 
tance. Spokane  v.  Patterson,  8:  1104,  89 
Pac.  402,  46  Wash.  93. 

12.  A  person  engaged  in  the  general  su- 
pervision of  blasting  is  criminally  liable  for 
the  firing  of  blasts  contrary  to  the  pro- 
visions of  a  municipal  ordinance,  although 
they  are  fired  by  his  agent,  contrary  to 
his  orders,  at  a  time  when  he  is  not  ac- 
tually present.  Spokane  v.  Patterson,  8: 
1 104,  89  Pac.  402,  46  Wash.  93. 


BLINDNESS. 


Duty  of  carrier  to  blind  passenger,  see  Cab- 

RIERS,  459-460b,  475. 
Exemption  from  taxation  of  institution  for 

the  blind,  see  Taxes,  96. 
Validity  of  statute  providing  for  payment 

to  blind    persons   of   money   raised  by 

taxation,  see  Taxes,  36. 


BLINDS— BOARDS  OF  EDUCATION. 
BLINDS.  ^  I  BOARDS. 


299 


Injunction  against  erection  of,  for  shooting 
purposes,  see  Injunction,  49,  50; 
Nuisances,  75. 


BLOODHOUNDS. 


Evidence   of    trailing    with,    see    Evidence, 

1984-19S8. 
Sufficiency    of    evidence    that    bloodhounds 

trailed  from  scene  of  crime  to  accused, 

to  support  his  conviction,  see  Evidence, 

2356,    2357. 
Instructions    on     evidence    of    trailing     of 

criminal  by,  see  Trial,  941. 


BLOOD   POISONING. 

Death  of  insured  bj',  see  Insurance,  746- 
749.   75.5-763. 

Master's  liability  to  servant  for  blood  poi- 
soning resulting  from  injury,  see  Mas- 
ter and  Servant,  323. 


BOAR. 

Injury  by,  vphile  trespassing,  see  Animals, 

25. 
Opinion  evidence  as  to  propensity  to  become 

vicious  after  certain  age,  see  Evidence, 

1202. 


BOARD  BILL. 


Imprisonment    of    one    absconding    without 
paying,  see  Imprisonment  for  Debt,  6. 


BOARDING   HOT7SE. 

Police  power  as  to,  see  Constitutional 
Law,  676,  681. 

Forbidding  soliciting  of  business  by,  at  rail- 
road stations,  see  Constitutional  Law. 
688. 

Power  of  brewing  corporation  to  construct 
boarding  house,  see  Corporations,  54, 
90. 

Homestead  in  property  used  for,  see  Home- 
stead, 14. 

Liability  of  keeper  of,  for  guest's  property, 
see  Innkeepers,  16. 

Liability  of  owner  of  building  leased  for,  to 
occupants  of  rooms,  see  Landlord  and 
Tenant,  134. 

Rates  for  water  supply  to,  see  Waters, 
404,  405. 

Digest  1-52  L.R.A.(N.S.) 


Of  frcH-^holders,  see  Boards  of  Freehold- 

KKS. 

Of  pardons,  see  Boards  of  Pardons. 

Of  trade,  see  Boards  of  Trade. 

Of  underwriters,  see  Boards  of  Under- 
writers. 

Of  port  commissioners,  see  Bonds,  11. 

Of  countv  commissioners,  see  Counties,  II. 
d. 

Of  dental  examiners,  see  Courts,  51;  In- 
junction, 312. 

Of  medical  examination,  conclusiveness  of 
findings  of,  on  courts,  see  Courts,  52. 

Of  education,  see  Boards  of  Education. 

Of  health,  see  Health,  I. 

Of  review  of  taxes,  see  Taxes,  III.  c. 

Exempting  municipal  boards  from  necessity 
for  furnishing  appeal  bond,  see  Appeal 
AND  Error,  141. 

Statute  authorizing  action  without  notice 
by  administrative  board  acting  by  con- 
sent, see  Constitutional  Law,  583. 

Delegation  of  power  to,  see  Constitutional 
Law,  I.  d,  4. 

Validity  of  contract  to  pay  for  services  in 
selling  goods  to  public  board,  see  Con- 
tracts,  513. 

Discretion  of  board  of  excise,  see  Intoxi- 
cating Liquors,  II.  b. 

Exercise  of  city's  police  power  through, 
see  Municipal  Corporations,  43. 

Implied  repeal  of  statute  providing  for 
board  of  public  safety,  see  Statutes, 
338. 

Power  of  board  of  supervisors  to  fix  situs 
of  debt  for  purpose  of  taxation,  see 
Taxes,  145. 

1.  A  member  of  a  state  board  of  phar- 
macy is  not  liable  for  damages  resulting 
from  the  refusal  of  the  board  to  register 
and  grant  a  certificate  to  a  pharmacist, 
where  such  action  was  taken  under  legal 
advice  and  without  malice,  since  the  re- 
fusal is  that  of  the  board,  and  not  of  the 
individuals  composing  it.  Monnier  v.  God- 
bold,  5:  463,  40  So.  604,  116  La.  165. 

( Annotated ) 

2.  A  statute  permitting  a  board  of  ex- 
aminers to  fix  the  time  for  the  examination 
of  applicants  for  plumbing  licenses,  and  to 
provide  an  examination  that  shall  test  the 
practical  knowledge  of  plumbing,  house 
drainage,  and  plumbing  ventilation  of  the 
applicant,  and  requiring  it  to  issue  a  li- 
cense if  satisfied  of  the  competence  of  the 
applicant,  is  not  invalid  as  conferring  ar- 
bitrary powers  upon  the  board.  Douglas 
V.  People  ex  rel.  Ruddy,  8:  11 16,  80  N.  E. 
341,  225  111.  536. 


BOARDS    OF   EDUCATION. 

Bribery  of  member  of,  see  Bribery,  2. 
Injunction  against,  see  Injunction,  321. 
In  general,  see  Schools,  III. 


300 


BOARDS  OF  EQUALIZATION— BONA     FIDE  HOLDER. 


BOARDS    OF   EQUALIZATION. 

Interference  by  eourt  with,  see  Courts,  76. 
Mantlamus  to  members  of,  see  Mandamus, 

31,  32. 
In  general,  see  Taxes,  III.  c. 


BOARDS    OF    FREEHOLDERS. 

Validity  of  contract  to  pay  member  of, 
for  advice  furnished  to  it,  see  Con- 
tracts, 519. 


BOARDS  OF  PARDON. 

See  Cbiminal  Law,  247,  256,  292,  296,  303. 


BOARDS    OF    TRADE. 

President's  right  to  appeal,  see  Appeal  and 
Ebboe,  83. 

Validity  of  contract  not  to  supply  quota- 
tions to  bucket  shop,  see  Contbacts, 
454. 

As  illegal  combination,  see  Monopoly  and 
Combinations,  62,  63. 

Taxation  of  membership  in,  see  Taxes,  34, 
49,  50. 

Compelling  telegraph  company  to  furnish 
quotations  of,  see  Telegraphs,  2. 

See  also  Exchanges. 

1.  A  membership  in  a  board  of  trade, 
the  value  of  wiiich  is  considered  by  the 
board  of  trade  in  determining  the  assets 
of  its  members,  and  which  is  used  as  col- 
lateral at  the  bani<  and  passes  by  will  or 
descent  and  by  insolvency  or  bankruptcy,  is 
property  altliongh  the  right  to  alienate  or 
transfer  it  is  subject  to  the  right  of  the 
board  to  disapprove  the  sale.  Re  Personal 
Property  Taxes,  50:  255,  145  N.  W.  108,  124 
Minn.  398. 


BOARDS  OF  UNDER\«rRITEBS. 

Validity    of    rules    of,    see   Monopoly   and 
Combinations,  78. 


BOAT. 

Negligence  in  use  of,  see  Masteb  and  Seev- 
ANT,  274,  275. 


BODILY   VIOLENCE. 

As  ground    for   divorce,   see    Divorce   and 

Separation,  III.  a. 
Digest   1-52  L.R.A.(N.S.) 


BOGUS   CHECK. 

Obtaining  money  by  use  of,  see  False  Pbe- 
TENSES,   14. 

♦-•-♦ 


BOISTEROUS   CONDUCT. 

As  nuisance,  see  Nuisances,  48. 

♦-•-♦ 

BOMB. 

Negligence  as  to,  see  Evidence,  .  1527 ;   Ex- 
plosions and  Explosives,  2. 


BONA    FIDE    HOLDER. 

Of  check,  see  Banks,  101 ;  Checks,  IV. 
Of    note,    see    Assumpsit,    5;    Bills    and 

Notes,  V.;   Insurance,  434. 
Of   bill    of    lading,    see    Bills    of   Lading; 

Cabbiebs,  753. 
Of  railroad   aid   bonds,   see  JEvidence,   540, 

541;  Trial,  1109. 
Of  municipal   bonds,  see  Bonds,  III.  b,  5. 
Of  junior   chattel   mortgage,   see   Chattel 

Mobtgage,  50. 
Of  rented  property,   lease  of  which   is   not 

recorded,  see  Conflict  of  Laws,   118. 
Of  corporate  stock,  see  Cobpobations,  233, 

238,  241,  244,  247,  248,  293;  Estoppel, 

203. 
Of  land  pending  suit,  see  Lis  Pendens,  II. 
Of  mortgage,  see  Mobtgage,  57. 
Of  land,  see  Recobds  and  Recobding  Laws, 

III.;   Vendob  and  Pubchaseb,  III. 
Of  personalty,  see  Sale,  III.  d. 
Of  trust  property,  see  Tbusts,  145. 
Ri^fhts   of,   as   against   prior   chattel   mort- 
gage, see  Chattel  Mobtgage,  41. 
Right  to  have  title  quieted,  see  Cloud  on 

Title,  6. 
Right  to  enforce  negative  covenant  against, 

see   Covenants  and   Conditions,   115, 

121. 
Corporation  purchasing  assets  of  other  com- 
pany as,  see  Cobpobations,  31. 
Estoppel  to  assert  title  as  against,  see  Es- 
toppel, 85. 
Estoppel  of  bank  to  refuse  to  pay  check, 

see  Estoppel,  88. 
Presumption    and    burden    of    proof    as    to, 

bona  fides,  see  Evidence,  197,  198,  274- 

281. 
Sufficiency   of  evidence   to   show   notice   to 

purchaser,  see  Evidence,  2219. 
Estoppel  to  set  up  fraud,  see  Fraud  and 

Deceit,  69. 
Protection  of,  against  lien,  see  Liens,  9. 
Title  acquired  by,  under  exercise  of  power 

of  sale  in  mortgage  after  order  nisi  for 

foreclosure,  see  Mobtgage,  112. 
Who    is,   as   against   attempt   to   set   aside 

fraudulent  sale  under  deed  of  trust,  se» 

Mortgage,  140. 

r  >«i»st<i 


BONA  VACANTIA— BONDS. 


301 


Effect  of  agent's  fraud  or  wrong  on  rights 
of,  see  Principal  a.\d  Agkxt,  71,  77. 

L/ien  on  money  in  hands  of,  see  Specific 
Performance,  124. 

Question  for  jury  as  to,  see  Trial,  305-307. 

One  buying  land  from  devisee  as,  see  Wills, 
385. 

See  also  Fraudulent  Conveyances,  IV. 


BONA  VACANTIA. 

See  Corporations,  390;  Escheat. 


BOND  FOR  TITLE. 

Obligation  of  grantee  in  deed  by  holder  of, 

see  Contracts,  223. 
Effect  of  testator's  giving,  to  cause  proceeds 

of    land    to    pass    as    personalty,    see 

Wills,  405. 
Suit  by   personal  representative  to  recover 

land  from  one  claiming  imder  bond  for 

title  from  decedent,  see  \\itnesses,  41. 


BONDHOLDERS. 


Rights  of,  on  mortgage,  see  Mortgage,  I. 
Right  to  bid  at  foreclosure  sale,  see  Mort- 
gage, 122. 
In  general,  see  Bonds. 


BONDS. 

I.  In  general;  for  private  obligations, 
1,   2. 
II,  For  indemnity  and  seeiirity,  3—71. 
a.  In  general,   3—34. 
J}.  For    fidelity    of    employees    or 
eorporate   officers,   35—44. 

c.  By  jnihlic  officers,  45—68. 

J.   In   general,    45—68. 
2.  Linhility  for  money  lost  or 
stolen. 

d.  By   public   depository,    69—71. 
III.  Commercial    and    municipal,    72— 

106. 
a.  Coriiorate   bonds,   72. 
h.  Municipal    bonds,    73—106. 

1.  In  general:  power  to  issue 

generally.    73—77. 

2.  For  what  purpose,   78—84. 

3.  Authorizing ;  elections,  85— 

97. 

4.  Form;  conditions  and  reg- 

ulations of  issue,  98—101. 

6.  Who  are,  and  rights  of, 
bona  fide  holders,  102— 
104. 

6.  Estoppel    as     to;    ratifica- 
tion. 
Digest  1-52  L.R.A.(N.S.) 


///. — continued. 

7.  Payment ;   time  and  place 
of,    105. 
^       8.  Actions       and       defenses; 
remedies,    106. 
IV.  State  bonds,  107—111. 

Statutory,  effect  of  failure  to  file,  on  right 
of  action,  see  Action  or  Suit,  1. 

On  appeal,  see  Appeal  and  Error,  III.  g; 
X. 

Time  for  appeal  by  bonding  company  from 
judgment  against  it,  see  Appeal  and 
Error,  136. 

Instruction  as  to  interest  in  action  on,  see 
Appeal  and  Error,  1362. 

On  attachment,  see  Attachment,  III.  b. 

Bail  bonds,  see  Bail  and  Recognizance. 

Of  warehouseman,  see  Bailment,  1 ;  Trial, 
736. 

Conversion  of,  by  bankrupt  brokerage  firm, 
see  Bankruptcy,  23. 

To  release  property  of  bankrupt,  see  Bank- 
ruptcy, 140. 

In  injunction  suit,  see  Bankruptcy,  156, 
157,  591-593;  Injunction,  430-440. 

Requiring  bond  as  condition  of  payment  of 
savings  bank  deposit,  see  Banks,  234. 

Liability  on  peace  bond,  see  Breach  of 
Peace,  3. 

Failure  of  town  board  to  require  bond  upon 
making  contract,  see  Contracts,  40. 

Bond  to  indemnify  bail,  see  Contracts, 
448;   Fraudulent  Conveyances,  52. 

To  replace  bridge,  what  excuses  from  obli- 
gation of,  see  Contracts,  635. 

Contract  giving  right  to  return  bonds  taken 
in  payment  and  receive  cash  for  them, 
see  Contracts,  731;  Limitation  of 
Actions,  125. 

Coupons  on,  see  Coupons. 

Duty  to  give  bond  to  dissolve  attachment  in 
order  to  keep  down  damages,  see  Dam- 
ages, 26. 

Damages  on,  see  Damages,  III.  a,  2. 

Taking  possession  of  property  condemned 
without  payment  by  filing  of  bond,  see 
Eminent  Domain,  256. 

Estoppel  by,  see  Estoppel,  II.  b. 

Presumption  of  payment  of,  see  Evidence, 
637. 

Parol  evidence  as  to,  see  Evidence,  910,  979, 
980. 

Opinion  as  to  value  of  particular  bonds, 
see  Evidence,  1123. 

Of  personal  representative,  see  Executors 
and  Administrators,  48,  50,  76-79; 
Venue,   3. 

Of  guardian,  see  Guardian  and  Ward,  III. 

Of  guardian  of  incompetent,  see  Incompe- 
tent Pe^jsons,  37. 

Injunction  against  enforcement  of,  see  In- 
junction,  271,   272. 

Interest  on,  see  Interest,  11,  12,  39,  41, 
42,  45,  47,  55. 

Joint  liability  of  creditors  giving  indemni- 
fying bond  to  levying  officer,  see  Joint 
Creditors  and  Debtors.  4. 

Effect  of  judgment  against  principal,  see 
Judgment,  II.  e,  4. 

For  release  of  levy  or  seizure,  see  I^evy  and 
Seizure,  IV. 


302 


BONDS,  I.,  II.  a. 


Requiring  life  tenant  to  give  security  for 
protection  of  remainderman,  see  Life 
Tenants,  5. 

Relative  rjj^hta  of  life  tenant  and  remain- 
dermen in,  see  Life  Tenants,  25. 

Mortgage  to  secure  performance  of  bond  for 
support  and  burial,  see  Mortgage,  S6. 

Right  of  bondholder  to  bid  at  foreclosure 
sale,  see  Mortgage,  122. 

Detached  coupons  as  within  protection  of 
clause  in  mortgage  securing  bonds,  see 
Mortgage,  145. 

Ne  exeat  bonds,  see  Ne  Exeat. 

Trustee  in  mortgage  to  secure  bonds  as  rep- 
resentative of  bondholder,  see  Parties, 
181,    182. 

Pleading  in  action  on,  sec  Pleading,  24]. 

Replevin  bond,  see  Pleading,  555;  Re- 
PLETVIN,  24-31. 

Tiiability  and  release  of  surety  generally, 
see  Principal  and  Surety. 

Of  tenant,  see  Principal  and  Surety,  6, 
15-19,  38,  61. 

Performance  of  condition  precedent,  see 
Principal  and  Surety,  7-11. 

EflFect  of  failure  of  part  of  obligors  to  sign, 
see  Principal  and  Surety,  12,  13. 

EflFect  of  giving  bond  to  release  vessel  for 
which  receiver  has  been  appointed,  see 
Receivers,  2. 

Priority  of  receivers'  certificates  over,  see 
Receivers,  38. 

Subrogation  of  surety,  see  Subrogation,  VI. 

Taxation  of  United  States  bonds,  see  Tax- 
es, 2,  335. 

Usury  on  loan  or  sale  of,  see  Usury,  11-14. 

Title  bond,  see  Vendor  and  Purchaser,  89; 
Witnesses,  41. 

Provision  in  contract  requiring  purchaser  of 
property  to  redeem  bonds  given  in  part 
payment  therefor,  see  Witnesses,   26. 

/.  In  general;  for  private  obligations. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Oral  evidence  that  bond  was  not  to  be  de- 
livered without  principal's  signature,  see 
Evidence,  979. 

Defense,  by  obligor  on  bond,  against  execu- 
tion by  co-obligor  who  has  paid  judg- 
ment, see  Execution,  3. 

Effect  of  failure  of  part  of  obligors  to  sign, 
see  Principal  and  Surety,  12,  13. 

1.  One  obligating  himself  by  bond  to 
protect  another  against  loss  by  reason  of 
the  nonpayment  at  maturity  of  commercial 
paper  made  or  indorsed  by  another,  and  pur- 
chased by  the  obligee,  assumes  no  obliga- 
tion with  respect  to  notes  given  in  renewal 
of  papers  so  purchased,  and  not  paid  at  ma- 
turity. American  Trust  Co.  v.  Ijouderback, 
i6:  775,  69  Atl.  673,  220  Pa.  197. 

( Annotated ) 

2.  A  bond  purporting  to  be  the  obliga- 
tion of  one  as  principal  and  of  others  as 
sureties,  but  which  has  been  executed  only 
by  the  sureties,  does  not,  upon  its  face,  show 
any  obligation  on  the  part  of  the  sureties. 
Digest   1-52  I..R.A.(N.S.) 


School   Dist.   No.    80   v.    Lapping,    12:  1105, 
110  N.  W.  849,  100  Minn.  139.     (Annotated) 

//.   For  indemnity  and  necurity. 

a.  In  general. 

(See   also    same   heading    in   Digest    L.R.A. 
1-10. )• 

Prematurity   of   action   on,   see   Action   cm 

Suit,  21. 
Condition  precedent  to  suit  on,  see  Action 

OF  Suit,  28. 
Prejudicial  error  in   admission   of  evidence 

in   action  on,  see  Appeal  and  Error, 

1118. 
Prejudicial  error  in  exclusion  of  evidence  in 

action  on,  see  Appeal  and  Erbob,  1221. 
Increasing  penalty   of  bond   in   prosecution 

for  abandonment  by  husband,  see  Con- 
stitutional Law,  35. 
Securitv  for  costs,  see  Costs  and  Fees,  10- 

12." 
Forthcoming  bond,  see  Levy  and  Seizure, 

34. 
Interruption  of  limitation  of  action  on,  see 

Limitation  of  Actions,  330,  331. 
Giving  of  bond  to  secure  release  of  lien  as  a 

novation  of  the  original  obligation,  see 

Novation,  5. 

3.  Delivery  of  an  indemnity  bond  is 
shown  by  evidence  that  it  was  executed  by 
the  insurer  and  sent  by  him  to  the  agent 
of  the  assured,  and  that  shortly  afterwards 
the  premium  was  paid  to  and  accepted  by 
the  insurer.  Title  Guaraiitv  &  S.  Co.  v. 
Bank  of  Fulton,  33:  676,  llf  S.  W.  537,  89 
Ark.   471. 

4.  In  the  ease  of  a  statutory  bond  in  a 
judicial  proceeding,  where  places  for  dates 
are  left  blank  with  the  knowledge  of  the 
sureties  and  the  understanding  that  they 
are  to  be  filled  in  at  the  proper  time,  and 
that  the  bond  is  to  be  then  filed  and  used  as 
such  in  the  case,  in  the  absence  of  fraud  in 
filling  in  the  blanks,  such  bond  is  a  valid 
and  binding  obligation  after  its  filing  and 
approval  by  the  proper  officer.  Harper  v. 
Pierce,  44:"  1144,  132  Pac.  667,  37  Okla.  457. 

5.  Where  the  legislature  has  not  pre- 
scribed a  standard  policy,  a  guaranty  in- 
surance bond  which  is  fairly  open  to  two 
constructions,  or  as  to  the  terms  of  which 
afi  ambiguity  exists,  should  be  strictly  con- 
strued against  the  insurer;  but  if  the  terms 
of  the  contract  be  clear,  and  not  fairly  sus- 
ceptible of  two  constructions,  an  ambiguity 
cannot  be  assumed  and  the  plain  intention 
of  the  parties  nullified  by  constructions. 
George  A.  Hormel  &  Co.  v.  American  Bond- 
ing Co.  33:  513,  128  N.  W.  12,  112  Minn. 
288. 

6.  Mere  fear  or  suspicion  on  the  part  of 
the  lessor  that  a  lessee  intends  to  sell  in- 
toxicating Hquor  on  the  leased  premises 
without  authority  of  law  will  not  avoid  a 
bond  by  which  the  lessee  undertakes  to  hold 
the  lessor  harmless  from  any  expenditure  or 
costs  because  of  the  unlawful  sale  of  liquor 


BONDS,  II.  a. 


303 


upon  the  premises.    Harbison  v.  Shirley,  19: 
662,  117  N.  W.  963,  139  Iowa,  605. 

(Annotated) 
To  stop  prosecution  for  seduction. 

Petition  for  cancelation  of,  see  Equity,  117. 

7.  It  is  no  ground  to  cancel  a  bond  exe- 
cuted under  Penal  Code  1895,  §  388,  to  stop 
a  prosecution  for  seduction,  that  the  man 
had  subsequently  discovered  proof  exoner- 
ating him  of  the  crime.  Grifhn  v.  Griffin, 
16:  937,  61  S.  E.  16,  130  Ga.  527. 
Contractor's  bond. 

Prematurity  of  suit  on,  see  Action  or  Suit, 

9. 
Constitutionality  of  statute  as  to,  see  Con- 

•STiTUTioNAL  Law,  365,  456;  Statutes, 

22. 
Burden  of  proving  notice  of  claim  to  surety 

on    bond    of    building    contractor,    see 

Evidence,  543. 
Parol  evidence  to  show  intention  of  sureties 

on,  see  EviDEXCE,  9R0. 
Interest   on   bond   to   indemnify   surety   on, 

see  Interest,  47. 
Individual    liability    of    public    officers    for 

failure   to   take   bond   from   contractor, 

see   Officers,    109,    110. 
Who   may   maintain   action    on   contractor's 

bond,  see  Parties,  85-88. 
Liabilitv    and    release    of    surety    on,    see 

Principal  and   Surety,   9,    10,   20-23, 

39,  40. 
Contribution     between     sureties     on      con- 
tractor's    bond,     see     Principal     and 

Surety,  73,  74. 
Reasonableness    of    time    of    giving    notice 

stipulated  for  in  bond,  see  Trial,  200. 

8.  Express  statutory  authority  is  not 
necessary  to  enable  trustees  of  a  public 
building  to  take  a  contractor's  bond  for  the 
benefit  of  persons  furnishing  material  for 
its  construction.  Smith  v.  Bowman,  g:  889, 
88  Pac.  687,  32  Utah,  33. 

9.  The  trustees  charged  with  the  duty 
of  securing  the  construction  of  a  state  build- 
ing have  implied  power  to  take  a  bond  from 
the  contractor  to  secure  payment  of  sub- 
contractors, laborers,  and  materialmen. 
National  Surety  Co.  v.  Hall-Miller  Decorat- 
ing Co.  46:  325,  61  So.  700,  104  Miss.  626. 

( Annotated ) 

10.  Statutory  authority  to  contract  for 
the  construction  of  county  buildings  au- 
thorizes a  county  to  bind  the  contractor 
to  pay  the  claims  of  laborers  and  material- 
men, although  such  contract  is  for  their 
benefit.  United  States  Gypsum  Co.  v.  Glea- 
son,   17:  906,  116  N.  W.  238,  135  Wis.   539. 

11.  A  board  of  port  commissioners 
which  is  a  state  agency,  is  not  liable  as  a 
surety  for  failing  to  exact  from  contractors 
employed  to  construct  a  building,  a  bond 
for  the  payment  of  materialmen,  subcon- 
tractors, etc.,  under  a  statute  as  to  build- 
ing contracts,  which  provides  for  the  taking 
of  a  bond  from  the  contractors  for  the  pro- 
tection of  subcontractors,  workmen,  me- 
chanics, and  materialmen,  and  imposes  on 
an  owner  who  fails  to  take  and  record  such 
a  bond  a  personal  liability  as  surety,  but 
which  does  not  in  terms  apply  to  public 
corporations.  Barrett  Mfg.  Co.  v.  Board 
Digest   1-52  L.R.A.(N.S.) 


of   Commissioners,  50:  469,  63   So.  505,   133 
La.  1022.  (Annotated) 

12.  Recovery  on  a  bond  given  by  a  con- 
tractor for  a  public  improvement  to  pay 
subcontractors  and  materialmen  cannot  be 
defeated  on  the  theory  that  it  was  not  re- 
quired by  the  contract,  if  it  was  executed 
at  the  same  time  with  it  and  as  part  of 
the  entire  transaction.  National  Surety  Co. 
V.  Hall-Miller  Decorating  Co.  46:  325,  61 
So.  700,  104  Miss.  626. 

13.  A  bond  by  a  contractor  for  a  public 
improvement  to  pay  subcontractors  and 
materialmen  cannot  be  defeated  for  want 
of  consideration,  where  its  execution  was 
necessary  to  secure  an  award  of  the  con- 
tract. National  Surety  Co.  v.  Hall-Miller 
Decorating  Co.  46:  325,  61  So.  700.  104  Miss. 
626. 

14.  A  compensated  surety  upon  the  bond 
of  an  ash  collector,  who  undertakes  that 
bis  principal  shall  comply  with  the  require- 
ments of  his  contract,  which  binds  him  to 
collect  ashes  for  a  period  of  two  years,  is 
not,  without  his  consent,  liable  for  the 
principal's  refusal  to  perform  during  an 
extended  term  which  the  public  authorities 
have  attempted  to  impose  upon  him  under 
the  provision  of  his  contract  that  they  shall 
have  the  privilege  of  renewing  the  contract 
for  a  specified  additional  period  at  their 
option.  United  States  use  of  District  of 
Columbia  v.  Bayly,  41:  422,  39  App.  D.  C. 
100.  (Annotated) 

15.  Dealers  who  have  furnished  material 
for  the  construction  of  a  sewer  need  not 
show,  in  an  action  to  recover  upon  the  con- 
tractor's bond,  that  the  material  delivered 
by  them  actually  entered  into  the  construc- 
tion of  the  sewer.  Bell  v.  Kirkland,  13: 
793,   113  N.  W.   271,   102  Minn.  213. 

16.  Sureties  on  the  bond  of  one  who  con- 
tracted to  construct  a  sewer  for  a  mu- 
nicipality are  liable  to  dealers  who  fur- 
nished material  to  the  contractor  in  reliance 
on  the  bond,  although  the  contract  for  the 
construction  of  the  sewer  is  ultra  vires  as 
to  an  inconsiderable  part  of  the  work,  by 
reason  of  irregular  exercise  of  the  power  of 
tlie  municipality.  Bell  v.  Kirkland,  13: 
793,  113  N.  W.  271,  102  Minn.  213. 

(Annotated) 

17.  The  recital  of  a  valid  and  subsisting 
contract  for  the  construction  of  a  sewer,  in 
the  bond  of  the  contractor,  is  binding  upon 
the  sureties  thereto,  and  precludes  them 
from  thereafter  asserting  that  the  contract 
was  ultra  vires.  Bell  v.  Kirkland,  13:  793, 
113  N.  W.  271,  102  Minn.  213. 

18.  Where  the  condition  of  a  bond  is 
"to  pay  all  claims  for  labor  and  material 
contracted  in  the  erection  of  a  county  jail 
building  to  each  and  all  persons  entitled 
thereto,  and  which  claims  might  be  the 
basis  of  liens  on  said  lots  and  buildings," 
etc.,  the  obligation  of  the  bond  extends 
only  to  such  claims  as  may  "become  liens," 
and  the  sureties  are  not  liable  on  account 
of  claims  that  are  not  and  could  not  be- 
come liens,  because  the  building  involved 
is  a  county  jail.  Hutchinson  v.  Krueger, 
41 :  315,  124  Pac.  591,  34  Okla.  23. 


304 


BONDS,  II.  a. 


19.  Sureties  on  a  bond  of  a  contractor 
for  a  public  buildinp,  which  is  for  the  bene- 
fit, also,  of  all  ])(.'r.sons  who  may  become  en- 
titled to  liens,  are  not  liable  for  the  paymenl 
lor  materials  furnished  for  the  construction 
of  the  building,  where,  under  the  statute, 
such  buildings  are  not  subject  to  lien, 
ymith  V.  Bowman,  9:  889,  88  J'ac.  687,  32 
Utah,    33.  (Annotated J 

20.  The  insertion  in  a  contractor's  bond 
of  the  clause  that  the  contractor  shall  dis- 
charge all  indebtedness  incurred  in  carrying 
out  the  contract  does  not  render  the  sureties 
•iable  to  materialmen  for  supplies  furnished, 
where  the  bond  provides  that  the  liability 
of  the  sureties  shall  be  to  the  owner  of  the 
building  and  those  entitled  to  liens  tliereon. 
where,  under  the  statute,  no  lien  can  attach 
for  such  materials.  Smith  v.  Bowman,  9: 
889,   88   Pac.    687,   32   Utah,   33. 

21.  A  statutory  bond  of  a  contractor  for 
public  work,  conditioned  that  he  will  pay 
for  labor  and  materials  used  in  the  work, 
does  not  cover  materials  furnished  to  tlie 
contractor's  partner  and  charged  to  him 
individually,  although  tliey  were  used  in 
the  work.  School  Dist.  No.  6  use  of  Cen- 
tral Door  &  Lumber  Co.  v.  Smith,  43:  65, 
127  Pac.  797,  63  Or.  586.  (Annotated) 

22.  The  bond  of  a  contractor  fora  street 
improvement  conditioned  to  pay  the  con- 
tractor's obligations  for  labor  and  mate- 
rials used  in  the  improvement  does  not  cov- 
er a  claim  for  repairs  upon  a  machine 
leased  by  the  contractor  and  used  in  tlie 
work.  Standard  Boiler  Works  v.  National 
Surety  Co.  43:  163,  127  Pac.  573,  71  Wash. 
28.  (Annotated) 

23.  A  provision  in  a  paving  contract  ob- 
ligating the  contractor  to  maintain,  repair, 
and  replace  the  pavement  for  a  period  of 
years  upon  notice,  and  during  the  perform- 
ance of  the  work  to  indemnify  the  city  for 
any  injury  resulting  from  negligence  in  such 
performance,  does  not  render  the  contractor 
liable  to  indemnify  the  city  for  a  recovery 
by  a  traveler  against  the  city  because  of  its 
failure  promptly  to  make  repairs  when  no- 
tified to  do  so.  New  York  v.  Sicilian 
Asphalt  Paving  Co.  46:  893,  101  N.  E.  696, 
208  N.  Y.  45. 

24.  The  bond  of  a  road  contractor  con- 
ditioned "for  the  prompt,  projjor,  and  ef- 
ficient performance  of  the  contract,"  does 
not  impose  a  liability  for  injury  l!o  a  trav- 
eler on  the  highway  through  Jiegligence  of 
the  contractor  in  allowing  tlie  road  to  get 
in  bad  repair  and  in  an  tuisafe  condition, — 
at  least,  where  no  liability  is  imposed  upon 
the  county,  under  the  law  for  the  negligent 
acts  of  its  overseers  and  agents  in  failing 
to  construct,  or  keep  in  repair,  the  public 
highway.  Redditt  v.  Wall,  34:  152,  55  So. 
45,  —  Miss.  — .  (Annotated) 

25.  A  bond  given  by  a  building  contrac- 
tor to  the  owner,  by  which  he  undertakes  to 
protect  the  obligee  from  damages  arising 
from  accidents  to  persons  employed  in  the 
construction  of  the  work,  does  not  apply  to 
an  injury  to  the  contractor's  workman  by 
the  negligence  of  the  owner's  servant  after 
the  owner  has  taken  possession  of  the  build- 
Digest  1-52  L.R.A.(N.S.) 


ing  and  the  contractor  is  replacing  certain 
work  rejected  by  the  archilect.  IVrry  v. 
Payne,  11:  1173,  60  Atl.  55^,  217    Pa.  l-rl. 

(Annotated) 

26.  An  undertaking  by  the  .surety  of  a 
building  contractor  who  has  contracted  to 
furnish  all  labor  and  material  for  a  build- 
ing, that  the  principal  shall  save  harmless 
the  obligee  from  any  pecuniary  loss  result- 
ing from  breach  of  any  conditions  of  the 
contract,  renders  him  liable  to  make  good 
any  loss  arising  from  payment  by  the  own- 
er of  mechanics'  liens  on  the  building,  which 
result  from  the  contractor's  failure  to  pay 
lor  labor  or  materials  us»d  in  the  building. 
Stoddard  v.  llihbler,  24:  1075,  120  N.  W. 
787,  156  Mich.  335.  (Annotated) 

27.  J^umber  furnished  for  and  used  in  the 
making  of  forms  for  a  concrete  structure, 
as  provided  in  a  contract  and  speciiication 
for  its  erection,  and  which  is  largely  con- 
sumed and  rendered  valueless  by  such  use,  is 
material  witiiin  the  meaning  of  a  bond  given 
by  a  suret}'  company,  the  obligation  of 
which  is  that  the  contractor  will  "'pay  all 
indebtedness  incurred  for  labor  and  ma- 
terial furnished  and  used  in  and  about  that 
contract  work,  or  which  might  become  the 
basis  of  a  lien."  Chicago  Lumber  t  o.  v. 
Douglas,  44:  843,  131  Pac.  563,  89  Kan.  308. 

:id.  A  surety  company  cannot  escape  lia- 
bility upon  a  bond  for  material  furnished 
to  and  used  by  a  contractor  in  a  building, 
on  the  ground  tliat  money  received  from  the 
owner  and  paid  to  the  materialman  was  ap- 
plied by  the  latter  in  discharge  of  an 
earlier  indebtedness  of  the  contractor  for 
material  used  on  other  buildings;  no  direc- 
tion having  been  given  by  the  contractor  as 
to  the  application  of  the  payment  at  tiie 
time  it  was  made.  Chicago  Lumber  to.  v. 
Douglas  Co.  44:  843,  131  Pac.  563,  89  Kan. 
308. 

29.  A  guaranty  insurance  bond  securing 
the  performance  of  a  building  contract 
which  reserves  the  right  to  have  changes 
made  and  extra  work  done  without  limit, 
on  the  written  order  of  the  owner  or  archi- 
tect, is  not  released  by  the  giving  of  oral 
orders  for  changes  and  extras,  where  the 
architect  audits  and  allows  the  amount 
tiiereof  before  payment.  George  A.  Hor- 
mel  &  Co.  v.  American  Bonding  Co.  33:  513, 
128  N.  W.  12,  112  Minn.  288. 

30.  The  bond  of  a  corporation  organized 
for  the  purpose  of  engaging  for  profit  in 
the  business  of  guarantying  the  fidelity  or 
contracts  of  a  third  party,  given  to  in- 
demnify the  owner  of  property  against  loss 
from  the  failure  of  a  contractor  to  per- 
form the  conditions  of  a  building  contract, 
while  in  form  resembling  a  contract  of  sure- 
tyship, is  in  effect  a  contract  of  insurance, 
to  which  the  rules  governing  ordinary  con- 
tracts of  insurance  are  applicable.  George 
A.  Hormel  &  Co.  v.  American  Bonding  Co. 
33:  513,  128  N.  W.  12,  112  Minn.  288. 

(Annotated) 

31.  The  requirement  of  a  bond  insuring 
the  performance  of  a  contract  to  erect  a 
building,  that  the  owner  should  immediately 
after  knowledge  of  the  occurrence  of  any 
breach  by  the  contractor,  or  of  any  act  on 


BONDS,  II.  b. 


305 


his  part  which  might  involve  a  loss  tor 
which  the  surety  would  be  liable,  give  writ- 
ten notice  thereof  to  the  surety  company, 
does  not  require  that  notice  be  given  in- 
stantly upon  learning  of  a  default,  but  that 
it  sheuld  be  given  within  a  reasonable  time 
under  all  the  circumstances.  George  A. 
Hormel  &  Co.  v.  American  Bonding  Co. 
33:  513,  128  N.  W.  12,  112  Minn.  288. 
Liquor  bond. 

Abatement  of  cause  of  action  on,  see  Abate- 
ment AND  Revival,  5. 
New  trial  because  of  excessive  judgment,  see 

Appeal  and  Error,  162\ 
Contract  by  brewing  company  to  indemnify 
surety    on    bond    of    retailer,    see    Cox- 
tracts,    447;    Corporations,    60,    93. 
Damages  on,  see  Damages,  124. 
Estoppel    to    contest    validity    of,    see    Es- 
toppel,   170. 
Who  may  mainta!in  action  on,  see  Parties, 

91,  92. 
Release   of   surety   on,   see   Principal   and 

Surety,   35. 
Effect  on  liability  on,  of  partial  invalidity 
of  statute  under  which  given,  see  Stat- 
utes, 56. 
See  also  Intoxicating  Liquors,  187. 

32.  A  liquor  tax  certificate  issued  by  a 
state  t©  one  intending  to  conduct  a  liquor 
business  on  a  military  reservation  which  is 
the  property  of  the  Federal  government  is 
a  nullity,  and  furnishes  no  consideration 
for  a  bond  conditioned  for  the  proper  con- 
ducting of  the  business.  Farley  v.  Scherno, 
47:  1031,  101  N.  E.  891,  208  N.  Y.  269. 

(Annotated) 

33.  That  a  liquor  dealer,  before  selling 
to  an  intoxicated  person,  did  all  that  a 
reasonably  prudent  man  should  do  under 
the  circumstances  to  determine  whether  or 
not  the  customer  was  intoxicated,  will  not 
relieve  him  from  liability  under  a  provision 
in  his  bond  that  he  will  pay  to  the  state 
the  damages  occasioned  by  his  sale  of  liquor 
to  an  intoxicated  person.  State  v.  Du- 
bruiel,  25:  801,  74  Atl.   1048,  75  N.  H.  309. 

(Annotated) 

34.  The  surety  on  the  bond  of  a  saloon- 
keeper is  liable,  under  the  civil  damage  act, 
for  successive  recoveries  for  injuries  caused 
by  his  principal's  illegal  sale  of  liquor,  un- 
til he  has  paid  the  face  of  the  bond,  and  the 
amount  which  has  been  paid  by  the  princi- 
pal in  former  actions  against  them  jointly 
is  immaterial.  Squires  v.  Michigan  Bond- 
ing &  Surety  Co.  43:  76,  138  N.  W.  1062, 
173    Mich    304.  (Annotated) 

b.  For  fidelity  of  employees  or  corpo- 
rate officers. 

(See   also    same   heading   in  Digest   L.R.A. 
1-10.) 


Deposit  of  cash  bond  with  employer  by  em- 
ployee, see  Accord  and  Satisfaction, 
18. 

Demand  as  condition  precedent  to  suit  on, 
see  Action  or  Suit,  28. 

Digest  1-52  L.R.A.(N.S.)  20 


Liability  for  false  statement  resulting  in 
withdrawal  of  surety  from  bond,"  see 
Case,  6. 

Suppression  of  evidence  by  one  accused  of 
causing  surety  to  withdraw  from  bond, 
see   Evidence,  307. 

Admissibility  of  evidence  in  action  for  se- 
curing withdrawal  of  surety  from  bond, 
see  Evidence,   803. 

Evidence  as  to  rule  of  employer  in  action 
on  bond  indemnifying  against  negli- 
gence of  employer,  see  Evidence,  1758. 

Evidence  of  admissions  of  principal  in  ac- 
tion on,  see  Evidence,  1259. 

Pleading  and  proving  defense  in  action  on, 
see  Evidence,   542. 

Release  of  surety  on  bond  of  insurance 
agent,  see  Principal  and  Surety,  41. 

Question  for  jury  as  to  negligence  of  em- 
ployee in  suit  on  bond  indemnifying 
against  his  negligence,  see  Trial,  539. 

35.  An  employer  cannot  enlarge  the  lia- 
bility of  one  undertaking  to  insure  him 
against  loss  through  the  negligence  of  his 
employee  as  fixed  by  the  terms  of  the  bond, 
by  establishing  rules  for  the  conduct  of 
his  business.  Great  Northern  Express  Co. 
V.  National  Surety  Co.  31:  775,  129  N.  VV. 
127,  113  Minn.   162.  (Annotated) 

36.  A  fidelity  insurance  bond  issued  by  a 
corporation  in  consideration  of  a  premium 
paid  need  not  be  signed  by  the  principal  to 
render  it  valid,  in  the  absence  of  any  stip- 
ulation in  the  instrument  or  elsewhere  which 
requires  such  signature.  Title  Guaranty 
&  S.  Co.  V.  Bank  of  Fulton,  33:  676,  117  S. 
W.  537,  89  Ark.  471. 

37.  A  clause  in  a  fidelity  insurance  bond 
which  requires  a  statement  from  the  em- 
ployer as  to  habits  and  accounts  of  the 
employee  whose  fidelity  is  to  be  insured, 
and  provides  that  said  statement  shall  con- 
stitute part  of  the  basis  and  consideration 
of  the  contract,  does  not  make  the  state- 
ment a  warranty  so  as  to  avoid  the  policy 
in  case  it  is  incorrect  through  mere  mis- 
take. Title  Guaranty  &  S.  Co.  v.  Bank  of 
Fulton,  33:  676,  117  S.  W.  537,  89  Ark. 
471.  (Annotated) 

38.  A  provision  in  a  surety  bond  as  to 
the  frequency  with  which  the  principal's 
books  shall  be  inspected,  supersedes  a  state- 
ment in  the  application  as  to  the  frequency 
with  which  it  shall  be  done.  United  Amer- 
ican F.  Ins.  Co.  V.  American  Bonding  Co. 
40:  661,  131  N.  W.  994,  146  Wis.  573. 

39.  The  failure  of  the  obligee  in  ;.  fidelity 
bond  to  communicate  to  the  sureties,  at 
the  time  of  its  execution,  the  fact  that  the 
principal  was  indebted  to  the  obligee  for 
money  embezzled,  will  relieve  the  sureties 
from  liability  on  the  bond;  although  they 
made  no  inquiry  upon  that  subject,  and  no 
communication  took  place  between  obligee 
and  sureties  about  the  bond  the  execution 
of  which  was  secured  by  the  principal,  and 
the  bond  purported  to  cover  past,  as  well  as 
future,  obligations.  Hebcrt  v.  Lee,  12:  247, 
101  S.  W.  175,  118  Tenn.  133.  (Annotated) 
Officers  of  corporatioii  or  association. 

40.  The   verification    of    an    oliicer's    ac- 


306 


BONDS,  II.  c,  1. 


counts,  required  by  his  fidelity  bond,  is  not 
satisfied  by  accepting  as  true  the  amount 
which  lie  has  in  bank  as  shown  by  his  bank 
pass  book,  without  taking  any  steps  to  as- 
certain from  the  bank  whether  or  not  it  rep- 
resents the  true  state  of  the  account.  Uni- 
ted States  Fidelity  &  G.  Co.  v.  Downey, 
lo:  323,  88  Pac.  451,  38  Colo.  414. 

(Annotated) 
Cashier. 
Liability   for    false   statement    resulting    in 

withdrawal  of  surety  from  bond  of,  see 

Case,  0. 

41.  The  employment  of  a  bank  cashier 
for  a  period  of  one  year,  after  appointing 
him  to  the  office  for  a  period  to  continue 
at  the  pleasure  of  the  trustees,  is  a  new 
appointment,  and  will  terminate  the  lia- 
bility of  the  sureties  on  the  bond  given  after 
his  first  appointment.  Wapello  State  Sav. 
Bank  v.  Colton,  11:  493,  110  N,  W.  450,  133 
Iowa,    147.  (Annotated) 

42.  A  policy  of  insurance  undertaking  to 
indemnify  a  bank  for  loss  through  the  dis- 
honesty of  its  assistant  cashier  who  owns 
merely  a  few  shares  of  its  stock  ceases  to 
operate  when  he  acquires  a  majority  of  the 
stock,  becomes  a  director,  and  is  prO|moted 
to  the  cashiership,  although  the  policy  per- 
mits him  to  perform  duties  other  than 
those  mentioned  in  the  bond.  Farmers  & 
Merchants  State  Bank  v.  United  States  Fi- 
delity &  G.  Co.  36:  1152,  133  N.  W.  247,  28 
S.  D.  315. 

Other  bank  employees. 

43.  In  an  action  against  a  surety  com- 
pany to  recover  on  the  bond  of  a  defaulting 
bank  president,  statements  and  representa- 
tions in  writing,  made  by  the  assistant  cash- 
ier of  the  bank,  relative  to  the  conduct,  du- 
ties, employment,  and  accounts  of  the  pres- 
ident, which  by  the  terms  of  the  bond  are 
made  a  part  of  the  bond  itself,  form  part  of 
the  contract,  and  upon  the  construction  of 
the  statements  and  bond  as  a  whole  the 
rights  and  liabilities  of  the  parties  thereto 
must  depend.  Willoughbv  v.  Fidelity  &  D. 
Co.  7:  548,  85  Pac.  713,  16  Okla.  546. 

44.  A  receiver  of  a  bank  cannot  be  heard, 
in  an  action  against  a  surety  company  on 
the  bond  of  the  defaulting  president  of  the 
bank,  to  repudiate  or  question  the  authority 
of  the  assistant  cashier  to  bind  the  bank  by 
his  statements  and  representations  concern- 
ing the  conduct,  duties,  employment,  and 
accovmts  of  the  president,  where  the  bond 
was  issued  by  the  surety  company  and  ac- 
cepted by  the  bank  upon  the  faith  of  such 
statements  and  representations.  VVillough- 
by  v.  Fidelity  &  D.  Co.  7:  548,  85  Pac.  713, 
16  Okla.  546.  (Annotated) 

c.  By  public  officers. 

1.  In  general. 

(See   also    same    heading    in   Digest   L.R.A. 
1-70.) 

Right  of  bank  which  has  credited  a  fraud- 
ulent   countv    warrant    received    from 
Digest  1-52  L.'.R.A.(N.S.) 


city  treasurer  for  collection,  to  charge 
it  off  as  ii'^ainst  surety  on  bond,  see 
Banks,  182. 

Agreement  with  surety  on  bond  to  devote 
fees  of  olTice  to  payment  of  certain  ob- 
ligations, see  CoNTKACTS,  436. 

Measure  of  damages  for  breach  of,  see  Dam- 
ages,  31,    123. 

Jurisdiction  of  equity  of  suits  on,  see 
Equity,  10. 

Presumption  as  to  when  shortage  in  ac- 
counts of  officer  occurred,  see  Evidence, 
659. 

Parol  evidence  to  explain  ambiguity  in,  see 
Evidence,  953. 

Sufficiency  of  proof  of  shortage,  see  Evi- 
dence, 2287. 

Interest  on,  see  Interest,  12,  45,  55. 

Conclusiveness  of  judgment  in  action  on, 
see  Judgment,  II.  e,  4. 

Running  of  limitations  in  favor  of  surety 
on,  see  Limitation  of  Actions,  126, 
127,  278. 

Liability  of  municipality  for  tort  by  olficer 
from  whom  no  bond  was  taken,  see  Mu- 
nicipal  Corporations,   384. 

Who  mav  maintain  action  on,  see  Pabties, 
37,  89,  90. 

Pleading  in   action  on,  see  Pleading,  241. 

Raising  by  demurrer  question  of  considera- 
tion for,  see  Pleading,  586. 

Right  of  surety  on,  to  recover  from  other 
officer  for  loss  through  latter 'a  neglect, 
see  Principal  and  Subett,  68,  69. 

Subrogation  of  surety,  see  Subrogation,  32, 
33. 

Liability  of  officers  generally,  see  Officers, 
II.  c. 

45.  In  an  action  upon  the  official  bond 
of  a  county  auditor,  wherein  both  the 
auditor  and  his  sureties  are  made  defend- 
ants, the  terms  of  the  bond  define  and  de- 
termine the  extent  of  the  auditor's  liabil- 
ity, which  is  no  greater  and  no  less  than 
that  of  his  sureties;  the  liability  of  both 
being  measured  by  the  terms  of  the  bond, 
reasonably,  but  strictly,  construed.  Foster 
V.  Malberg,  41:967,  137  N.  W.  816,  119 
Minn,   168. 

46.  The  common-law  liability  of  a  coun- 
ty auditor  and  the  sureties  on  his  official 
bond  is  not  enlarged  by  a  statute  providing 
that  the  bond  shall  be  security  to  all  per- 
sons severally  for  the  official  delinquencies 
against  which  it  is  intended  to  provide, 
and  that  any  person  injured  by  such  delin- 
quencies may  sue  on  the  bond  in  his  own 
name,  so  as  to  make  them  liable  to  a 
purchaser  at  a  tax  sale  for  the  loss  caused 
by  the  officer's  failure  to  give  the  statu- 
tory notice  of  the  sale,  which  rendered  it 
void,  for  which  the  purchaser  has  no  remedy 
in  the  absence  of  statute.  Foster  v.  Mal- 
berg, 41:  967,  137  N.  W.  816,  119  Minn.  168. 

47.  The  acts  of  a  public  official  who  has 
certified  refunding  tax  warrants  in  favor 
of  fictitious  persons,  in  representing  that 
they  are  genuine  and  valid  for  the  amounts 
called  for,  while  negotiating  them  to  a  bank 
to  which  he  sells  them,  and  not  his  original 
act  in  certifying  them,  are  the  cause  of  the 


BONDS,  II.  c,  1. 


307 


bank's  loss  in  case  they  prove  worthless  in 
its  hands;  and  therefore  the  bank  cannot 
look  to  his  bond  for  reimbursement  under 
a  statute  providing  that  his  bond  is  to  be 
construed  as  security  to  all  persons  sever- 
ally for  official  delinquencies,  and  action 
may  be  brought  thereon  for  the  use  of  a 
person  injured  by  his  misconduct  in  office. 
National  Surety  Co.  v.  State  Sav.  Bank, 
14:  155,  1.56  Fed.  21,  84  C.  C.  A.  187. 

48.  A  bank  which  purchases  from  a  dep- 
uty county  auditor  non-negotiable  refunding 
tax  warrants  which  he  has  certified  in  favor 
of  fictitious  payees  cannot  hold  the  auditor 
or  his  surety  liable  for  a  loss  resulting  from 
their  proving  worthless  in  its  hands.  Na- 
tional Suretv  Co.  v.  State  Sav.  Bank,  14: 
155,  156  Fed."^  21,  84  C.  C.  A.  187. 

49.  Where  a  certified  check  is  given  by 
a  defendant  against  whom  a  criminal 
charge  is  pending,   in  lieu  of  a  deposit  of 

■  the  sum  of  money  mentioned  in  the  order 
admitting  to  bail,  as  authorized  by  §  6108, 
Okla.  Rev.  Laws  1910,  and  said  check  is 
cashed  by  the  officer  and  the  proceeds  em- 
bezzled, the  fact  that  the  statute  does  not 
authorize  the  acceptance  of  a  certified  check 
as  the  equivalent  to  bail  is  immaterial,  in 
an  action  brought  against  the  sureties  on 
the  officer's  bond  by  the  drawer  of  the 
check.  Ahsmuhs  v.  Bowyer,  50:  1060,  135 
Pac.  413,  39  Okla.  376. 

50.  An  undertaking  by  sureties  on  a 
bond  of  one  whose  anticipated  appointment 
is  not  received,  that  he  shall  render  due  ac- 
count of  his  office  "to  the  proper  authority" 
and  that  he  shall  pay  the  money  that  comes 
to  his  hands  by  virtue  of  his  office,  cannot 
be  enforced  by  the  county  treasurer,  who  is 
named  in  the  bond  as  obligee  and  to  whom 
the  bond  is  delivered,  merely  because  he 
deposits  funds  with  the  principal  which  he 
has  to  make  good  to  the  county  because  of 
the  principal's  insolvency.  Kuhl  v.  Cham- 
berlain, 21:766,  118  N.  W.  776,  140  Iowa, 
546. 

Validity;   bond   not   required   by   la\ir. 

51.  Failure  of  the  principal  to  sign  his 
official  bond  does  not  render  it  void  in  favor 
of  the  surety,  where  the  statute  provides 
that  no  irregularity  shall  render  sucli  bond 
void,  if  it  ia  delivered  as  the  official  bond 
of  the  officer  and  serves  as  such,  and  it  is 
joint  and  several  in  form.  Adams  v.  Wil- 
liams, 30:  855,  52  So.  865,  97  Miss.  113. 

52.  Tlie  official  bond  of  the  treasurer  of 
a  levee  board  which  has  the  conditions  pre- 
scribed by  law  is  not  rendered  void  by  the 
insertion  of  an  additional  condition  reliev- 
ing the  surety  from  liability  for  loss  of 
money  deposited  in  the  bank,  such  condi- 
tion being  merely  surplusage  and  void. 
Adams  v.  Williams,  30:  855,  52  So.  865, 
97  Miss.  113. 

53.  A  bond  voluntarily  issued  by  a  dis- 
trict clerk  naming  the  state  of  Oklahoma 
as  obligee,  conditioned  for  the  faithful  per- 
formance of  his  official  acta,  and  for  the  ac- 
counting and  paying  over  of  all  moneys  by 
him  received  as  such  officer,  is  a  valid  and 
binding  obligation,  though  not  required  to 
be  given  by  statute,  if  it  ia  supported  bv 
Digest  1-52  ]:..R.A.(N.S.) 


a  valid  consideration  and  is  not  repugnant 
to  the  letter  or  policy  of  the  law,  and  the 
sureties  on  the  bond  are  bound  thereby. 
Ahsmuhs  v.  Bowyer,  50:  1060,  135  Pac.  413, 
39  Okla.  376.  (Annotated) 

Defalcations  prior  to  date  of  bend. 

54.  Sureties  of  an  officer  who  has  suc- 
ceeded himself  cannot  maintain  a  bill  in 
equity,  after  his  death,  to  correct  his  official 
reports  so  as  to  show  that  he  did  not  in 
fac^  have  on  hand  funds  with  which  he 
charged  himself  at  the  time  they  became 
his  sureties,  and  thereby  relieve  themselves 
from  liability  for  a  shortage  in  his  accounts. 
Cowden  v.  Trustees  of  Schools,  23:  131,  85 
X.  E.  924,  235  111.  604.  (Annotated) 
Of  postmaster. 

55.  A  postmaster  who  innocently  obeys 
the  direction  of  the  Postoffice  Department 
to  appoint  a  clerk  in  his  office  who  is  to 
perform  duties  at  Washington,  and  who 
draws  checks  for  his  salary,  is  liable  to 
make  good  the  amount  thereof  on  his  bond, 
under  the  statute  providing  that  it  shall 
not  be  lawful  to  detail  clerks  from  any 
branch  of  the  postal  service  to  any  of  the 
offices  of  the  Department  at  Washington. 
United  States  v.  Moore,  24:  309,  168  Fed. 
36,  93   C.  C.  A.  458.  (Annotated) 

56.  That  a  clerk  paid  by  one  in  charge 
of  a  local  postoffice  was  actually  on  duty 
in  the  Department  at  Washington  does  not 
render  the  postmaster  liable  on  his  bond 
to  refund  the  amount  so  paid,  if  he  was 
ignorant  as  to  the  place  of  liis  service,  and 
the  clerk  was  appointed  and  his  payment 
directed  by  the  proper  authorities.  United 
States  V.  Warfield,  24:  312,  170  Fed.  43, 
95  C.  C.  A.  317. 

Marshal. 

57.  Failure  of  town  authorities  to  make 
a  record  of  the  execution  and  acceptance  of 
the  marshal's  bond  will  not  prevent  its  en- 
forcement if  it  was  in  fact  properly  exe- 
cuted, accepted,  and  placed  on  file.  Grow- 
barger  v.  United  States  Fidelity  &  G.  Co. 
11:  758,  102  S.  W.  873,  126  Ky.  118. 

58.  The  unjustifiable  killing,  by  an  of- 
ficer, of  a  person  whom  he  has  arrested,  is 
within  the  provision  of  his  bond  by  which 
the  surety  undertakes  that  he  shall  well 
and  truly  discharge  all  the  duties  of  his 
office,  tirowbarger  v.  United  States  Fidel- 
ity &  G.  Co.  11:  758,  102  S.  W.  873,  126  Ky. 
118.  (Annotated) 

59.  The  sureties  on  a  marshal's  bond  are 
liable  for  his  act  in  shooting  a  bystander 
whom  he  believes  intends  to  interfere  in  an 
arrest  which  he  is  attempting  to  make. 
Martin  v.  Smith,  29:  463,  125  S.  W.  249, 
136  Ky.  804.  (Annotated) 
Sheriff. 

Presumption   as   to   amount   of   damage   in 

suit  on,  see  Evidence,  656. 
Pleading   in  action   on,   see  Pleading,   241. 

60.  A  statute  providing,  that  an  official 
bond  shall  be  for  the  benefit  of  all  persons 
who  may  be  injured  or  aggrieved  by  the 
wrongful  act  or  default  of  the  officer  in  his 
official  capacity  must,  in  its  application  to 
the  bond  of  a  sheriff,  be  read  in  connection 
with  the  conditions  of  the  bond  obligating 


308 


BONDS,  II.  c,  2,  d. 


him  well  and  truly  to  perform  his  duties 
as  slier ifl",  and  refers,  therefore,  only  to  such 
liabilities  as  arise  within  the  fair  intend- 
ment and  meaning  of  the  obligation  itself. 
McPhee  v.  United  States  Fidelity  &  G.  Co. 
21 :  535,  100  Pac.  174,  52  Wash.  154. 

GL  The  bond 'of  a  sheriff  is  not  liable, 
because  of  his  negligently  permitting  the  es- 
cape of  a  prisoner  properly  in  his  custody, 
to  one  who,  having  been  instrumental  in  the 
capture  of  the  prisoner,  is  thereby  depriVed 
ot  a  reward  offered  by  a  third  person  for 
his  capture  and  conviction.  McPhee  v. 
United  States  Fidelity  &  G.  Co.  21:  535, 
100  Pac.  174,  52  Wash.  154.        (Annotated) 

62.  The  bond  of  a  sheriff  conditioned  that 
he  shall  faithfully  perform  and  execute  the 
duties  of  his  office  is  not  liable  for  an  in- 
jury inflicted  upon  a  bystander  by  the  dis- 
charge of  a  revolver  negligently  dropped  by 
his  deputy  after  it  had  been  taken  from  a 
prisoner,  if  the  prisoner  was  not  lawfully 
arrested,  or  it  was  not  necessary  to  relieve 
him  of  the  revolver,  so  as  to  make  it  part 
of  the  official  duty  of  the  deputy  to  have 
possession  of  the  weapon.  People  use  of 
Tamplin  v.  Beach,  37:  873,  113  Pac.  513, 
49  Colo.  516. 

63.  A  sheriff  is  liable  on  his  official  bond 
for  shooting  one  guilty  of  a  simple  misde- 
meanor to  prevent  his  escaping  arrest,  al- 
though he  merely  fires  his  pistol  in  his  di- 
rection to  cause  him  to  halt.  State  use  of 
Johnston  v.  Cunaingham,  51:1179,  65  So. 
115,  —  Miss.  — .  (Annotated) 

64.  No  action  will  lie  upon  the  official 
bond  of  a  sheriff  because  of  a  false  return 
of  service  in  a  divorce  proceeding  which 
results  in  a  decree  of  divorce,  if,  after  learn- 
ing of  the  decree,  defendant,  instead  of  pro- 
ceeding to  have  the  decree  set  aside,  ne- 
gotiates with  her  former  husband  for  a 
more  favorable  allowance  than  is  provided 
for  in  the  decree.  Morgan  v.  Williams, 
38:  292,  120  Pac.  106,  66  Wash.  649. 

(Annotated) 
Deputy   sheriff. 

65.  The  sureties  upon  the  official  bond 
of  a  deputy  sheriff,  who  undertake  that 
he  shall  faithfully  and  impartially  dis- 
charge the  duties  of  liis  office,  are  liable 
for  any  unlawful  or  oppressive  act  done  by 
such  officer  under  color  or  by  virtue  of  his 
office.  Lee  v.  Charmley,  33:  275,  129  N.  W. 
448,  20  N.  D.  570. 

66.  A  deputy  sheriff  who,  falsely  claim- 
ing to  have  a  warrant  for  the  arrest  of 
a  person  not  charged  with  crime  of  any 
kind,  goes  to  his  house  in  the  nighttime, 
and,  under  guise  of  the  authority  of  his  of- 
fice, arrests  and  takes  such  person  into 
custody,  has  committed  an  unauthorized 
and  unlawful  act  under  color  of  his  office, 
for  which  the  sureties  upon  his  official  bond 
are  liable  in  a  proper  action.  Lee  v.  Charm- 
ley,  33:  275,  129  N.  W.  448,  20  N.  D.  570. 

(Annotated) 
Constable. 

67.  The  sureties  on  a  constable's  bond 
are  liable  for  an  assault  by  him  upon  the 
wife  of  an  execution  debtor,  made  when 
she  attempts  to  view  property  which  he  has 
Digest   1-52  L.R.A.(N.S.)" 


seized  and  is  proceeding  to  remove  under 
the  execution,  to  aid  her  husband  in  mak- 
ing a  schedule  of  the  property  for  the  pur- 
pose of  claiming  an  exemption,  the  assault 
being  made  for  the  purpose  of  preventing 
the  making  of  the  schedule.  Greenberg  v. 
People  use  of  Balaban,  8:  1223,  80  N.  E. 
100,  225  111.  174.  (Annotated) 

68.  The  bond  of  a  constable  is  not  sub- 
ject to  forfeiture,  thereby  subjecting  the 
sureties  to  liability  thereon,  for  failure  to 
return  to  the  defendant,  upon  the  success- 
ful termination  of  an  attachment  suit,  the 
amount  of  the  plaintiff's  claim,  which  the 
defendant  paid  to  the  officer  at  the  time 
of  the  levy,  to  secure  the  release  of  the 
goods  attached,  and  whicli  the  officer  paid 
to  the  plaintiff's  attorney,  as  this  act  was 
not  performed  in  furtherance  of  the  duty 
of  such  officer.  Jersey  City  use  of  Elliott 
V.  Schoppe  (N.  J.  Err.  &  App.)  ",9:  577,  82 
Atl.  913,  82  N.  J.  L.  697.  (Annotated) 

2.  JLiahility  for  money  lost  or  stolen. 

(See  also  same  heading  in  Digest  L.Ii.A. 
1-10.) 

Statute  releasing  from  liability  for  loss  of 
public  funds  through  bank  failure,  see 
Constitutional  Law,  770;  Taxes,  14. 

Liability  of  officers  generally,  see  Officers, 
111-114. 

d.  By  public  depository. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Pledge  of   assets   by    bank    receiving   state 

moneys,  see  Banks,  198. 
Estoppel  of  surety  as  to  extent  of  liability 

under  bond,  see  Estoppel,  38. 
Admissibility  of  books  of  account  in  action 

on,  see  Evidence,  796. 

69.  A  surety  company  furnishing  a  bond 
to  the  state  for  a  state  depository  cannot 
resist  liability  thereon  on  the  ground  that 
the  state  treasurer  had  connived  with  the 
depository  to  deposit  funds  therein  contrary 
to  law.  United  States  Fidelity  &  G.  Co. 
V.  State,  26:  865,  106  Pac.  1040,  81  Kan.  660. 

(Annotated) 

70.  A  bond  executed  and  delivered  to  a 
county  treasurer  as  a  statutory  bond  of  a 
public  depository,  which  does  not  become 
effective  because  the  principal  does  not  re- 
ceive the  anticipated  appointment  and  the 
bond  is  not  presented  to  and  approved  by 
the  supervisors  as  required  by  statute,  can- 
not be  enforced  by  the  treasurer  as  a  com- 
mon-law bond  in  case  he  deposits  coimty 
funds  with  the  principal  which  he  is  com- 
pelled to  make  good  because  of  the  prin- 
cipal's insolvency.  Kuhl  v.  Chamberlain, 
21:  766,  118  N.  W.  776,  140  Iowa,  546. 

(Annotated) 

71.  The  bond  of  a  custodian  of  public 
money  is  liable  to  account  for  the  interest 


BONDS,  III.  a,  b,  1. 


30'J 


which  he  receives  upon  it,  where  the  stat- 
ute makes  him  liable  to  safe-keep,  account 
for,  and  pay  over  all  money  that  may  come 
into  his  custody  in  his  official  capacity,  and 
all  other  money  for  which  he  is  properly 
accountable  as  such  officer,  although  the 
statute  makes  it  unlawful  for  him  to  use 
such  money  for  his  own  benefit.  Adams  v. 
Williams,  30:  855,  52  So.  865,  97  Miss.  113. 

( Annotated ) 

///.   Commercial  and  m,unicipal. 

a.  Corporate  honds. 

(See  also  same  heading  m  Digest  L.R.A. 
1-10.) 

Control  by  public  service  commission  of 
issue  of,  see  Appeal  and  Error,  82; 
Commerce,  46;  Evidence,  518;  Public 
Service  Commission,   7-9. 

Attachment  of,  see  Attachment,  24,  31,  47. 

Market  value  of  bonds  of  railroad  company 
as  criterion  of  value  of  property  for 
purpose  of  fixing  rates,  see  Carriers, 
1039. 

Power  of  railroad  company  to  guaranty 
dividends  on  bonds  for  constructing 
summer  hotel,  see  Corporations,  61. 

Sufficiency  of  vote  creating  bonded  indebt- 
edness of  corporation,  see  Corpora- 
tions, 374. 

Fraud  in  sale  of,  by  promoters,  see  Corpo- 
rations, 182;   Evidence,  1672-1674. 

Investments  by  committee  of  lunatic  in,  see 
Incompetent  Persons,  33,  34. 

What  property  subject  to  levy  under  judg- 
ment in  action  on  past-due  coupons, 
see  Levy  and  Seizure,  4. 

Levy  on  registered  bonds  of  foreign  corpo- 
ration belonging  to  nonresident,  see 
Levy  and  Seizure,  9. 

Effect  of  acceleration  provision  in,  to  start 
running  of  limitations,  see  Limitation 
of  Actions,  138. 

Stockholder's  liability  on,  see  Limitation 
of  Actions,  151. 

Stipulation  in,  for  maturity  of  debt  on  de- 
fault in  payment  of  interest,  see  Mort- 
gage, 94. 

Who  may  maintain  action  on  past-due 
coupons,    see    Parties,    43. 

Set-off  of  judgment  against  stockholder  in 
action  by  him  on  corporate  bonds,  see 
Set-Off  and  Counterclaim,  33. 

Usury  in,  see  Usury,  12-14. 

Lapse  of  bequest  of  stock  by  exchange  there- 
of for  bonds,  see  Wills,  392. 

72.  A  stipulation  in  bonds  of  a  corpo- 
ration that  there  shall  be  no  recourse  to 
the  stockholders  for  payment  of  the  bonds, 
is  valid,  and  will  prevent  resort,  even  to 
unpaid  stock  subscriptions,  for  the  satis- 
faction of  the  bond.  Grady  v.  Graham,  36: 
177,  116  Pac.  1098,  64  Wash,  436. 
Digest  1-52  i:..R.A.(N.S.) 


b.  Municipal  honds. 

1.  In    general;    power    to    issxie    gen- 
erally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Impairing  contract  rights  by  declaring  in- 
validity of,  see  Constitutional  Law, 
804. 

Right  of  persons  to  whom  municipality  has 
agreed  to  deliver  bonds  under  unauthor- 
ized contract,  see  Contracts,  566. 

As  to  county  warrants,  see  Counties,  II.  b. 

Necessity  of  notice  of  intention  to  retire 
bonds  before  maturity  in  order  to  stop 
interest,    see  Interest,   39. 

Interest  after  maturity  on  public  improve- 
ment bonds  to  be  paid  by  special  assess- 
ment, see  Interest,  41,  42. 

Limitation  of  actions;  on,  see  Limitation  of 
Actions,    213. 

Contract  to  deliver  to  one  advancing  money 
with  which  to  purchase  water  system, 
see  Municipal  Corporations,  238. 

Municipal  warrants,  see  Municipal  Corpo- 
rations,   261.     * 

Including  bonds  of  school  district  in  de- 
termining amount  of  city  indebtedness, 
see  Municipal  Corporations,  269. 

As  debt  within  meaning  of  constitutional 
limitation  of  municipal  indebtedness, 
see  Municipal  Corporations,  271. 

Issue  of,  in  excess  of  authorized  indebt- 
edness, see  State,  8,  9. 

Plurality  of  subjects  in  statute  authorizing 
issuance  of,  see  Statutes,  147. 

Act  legalizing  school  bonds,  see  Statutes, 
178. 

Taxation  of,  see  Taxes,  70,  71,  84. 

Tax  on  money  and  interest  bearing  securi- 
ties in  sinking  fund  accumulated  by 
municipality  to  retire  bonds,  see 
Taxes,  119. 

Enforcement  by  bondholder  of  taxing  dis- 
trict of  tax  lien,  see  Taxes,  266. 

73.  The  mere  facts  that  a  city  might 
have  issued  warrants  for  a  certain  purpose, 
and  might  have  refunded  its  indebtedness, 
do  not  validate  negotiable  bonds  issued  by 
it  in  the  first  instance  without  authority, 
and  which  it  has  never  ratified.  Swanson 
V.  Ottumwa,  5:  860,  106  N.  W.  9,  131  Iowa, 
540. 

74.  A  municipality  has  power  to  provide 
for  the  payment  of  annual  interest  on  bo!ids 
to  be  issued  by  it,  although  the  law  author- 
izing the  issue  of  such  bonds  does  not  ex- 
pressly authorize  it  to  make  provision  for 
the  payment  of  such  bonds,  or  annual  inter- 
est thereon.  Vallelly  v.  Grand  Forks  Park 
Comrs.  15:  61,  111  N.  W.  615,  16  N.  D.  25. 

75.  A  state  does  not,  by  authorizing  the 
issuance  of  bonds  for  the  making  of  an  im- 
provement, and  providing  that  they  shall 
b«  paid  from  assessments  on  property  bene- 
fited, enter  into  a  contract  that  the  method 
provided  for  raising  the  funds  shall  be  fol- 
lowed, so  that  it  will  be  liable  thereon  if 
the  officers   charged  with  the   duty   of  col- 


310 


BONDS,  III.  b,  2,  3. 


lecting  the  funds  fail  to  do  so,  and  it  per- 
mits  itself   to   be    sued    on    its    contracts. 
Union  Trust  Co.  v.  State,  24:  mi,  99  Pac. 
183,   154  Cal.   716. 
Amount. 

Effect  of  laches  on  right  of  taxpayers  to 
protest  against  illegality  of  city  bonds, 
see  Limitation  of  Actions,  63. 
Necessary  parties  to  action  on  public  im- 
provement bonds  issued  in  excess  of 
authorized   amount,   see  Parties,   171. 

76.  When  the  power  of  a  municipal  cor- 
poration to  issue  water  bonds  is  derived 
from  a  statute  which  imposes  the  condition 
precedent  that  any  issuance  of  bonds  for 
such  purpose  must  first  be  submitted  to, 
and  authorized  by,  the  voters,  the  voters 
cannot  delegate  to  the  city  council  the  power 
to  fix  the  amount  of  the  bonds.  Stern  v. 
Fargo,  26:  665,  122  N.  W.  403,  18  N.  D.  289. 

77.  An  overissue  of  public-improvement 
bonds  will  not  invalidate  all  those  issued, 
if  the  statute  contemplated  that  bonds 
might  be  issued  at  different  times  until  the 
aggregate  issue  equaled  the  authorized 
amount,  but  only  those  issued  after  the 
limit  is  passed.  Meyer  v.  San  Francisco, 
10:  110,  88  Pac.  722,  150  Cal.  131. 

2.  For  what  purpose. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  366,  401. 

For  acquiring  ice  plant,  see  Constitu- 
tional Law,  366,  401;  Municipal  Cor- 
porations, 311. 

PurjKjses  for  which  public  money  may  be 
used  generally,  see  Public  Money,  II. 

78.  That  a  harbor  impr  /ement  for 
which  bonds  are  voted  by  a  county  is  to  be 
made  upon  plans  devised  by  improvement 
districts  does  not  make  them  aid  bonds 
for  the  benefit  of  such  districts  so  as  not 
to  be  within  the  authority  of  a  statute 
permitting  the  county  to  undertake  the 
harbor  improvement.  Blaine  v.  Hamilton. 
35:  577,  116  Pac.  1076,  64  Wash.  353. 

79.  Bonds  to  erect,  construct,  and 
"equip"  a  school  are  authorized  by  statu- 
tory power  to  issue  them  to  erect,  con- 
struct, and  "complete"  schools.  Maxcy  v. 
Oshkosh,  31:787,  128  N.  W.  899,  1136,  144 
Wis.  238. 

Railroad  aid  bonds. 

Effect  of  purchase  by  bank,  of  railroad-aid 

bonds,   and   placing   amount   of   bid   to 

credit  of  railroad  company,  see  Banks, 

58. 
Presumption  as  to  bona  fide  character  of 

holder  of,  see  Evidence,  540,  541. 
Who   may   enforce   tax   levied   to   pay,   see 

Taxes,  266. 

80.  Statutory  authority  to  purchase  land 
to  be  donated  to  a  railroad  company  for  de- 
pot purposes  does  i.ot  impliedly  authorize  a 
municipal  corporation  to  issue  its  negotiable 
bonds  for  the  purchase  price.  Swanson  v. 
Ottumwa,  5:  860,  106  N.  W.  9,  131  Iowa,  540. 
Digest  1-52  L.R.A.(N.S.) 


81.  The  construction  of  the  road  upon  a 
certain  route  through  the  county,  and  the 
expenditure  of  the  subscription  tlioroin,  is 
not  a  condition  precedent  to  the  issuance  of 
county  bonds  in  aid  of  a  railroad  under  a 
vote  upon  a  submission  of  the  question 
whether  or  not  bonds  in  aid  of  the  sub- 
scription should  be  issued  upon  condition 
that  the  company  so  locate  and  construct 
the  road  and  expend  the  money.  Quinlan 
V.  Green  County,  19:  849,  157  Fed.  33,  84 
C:  C.  A.  537. 

82.  The  exoneration  of  a  county  from  its 
former  subscription  to  the  stock  of  another 
cotporation  is  a  condition  precedent  to  the 
issuance  of  bonds  in  aid  of  a  subscription 
to  railroad  stock,  where  the  order  for  the 
election  contained  the  condition  that  bonds 
in  aid  of  the  subscription  should  not  be  is- 
sued until  the  county  was  fully  and  com- 
pletely exonerated  from  the  payment  of  the 
capital  stock  voted  and  authorized  to  be 
issued  to  the  former  company.  Quinlan  v. 
Green  County,  19:  849,  157  Fed.  33,  84  C.  C. 
A.  537. 

83.  A  statute  providing  for  the  forma- 
tion of  railroad  districts  and  the  voting  of 
bonds  for  the  purchase  or  construction  of 
railroads  by  such  districts,  and  for  the 
operating  or  leasing  thereof,  violates  a  con- 
stitutional provision  prohibiting  counties 
or  other  subdivisions  of  the  state  from  lend- 
ing their  credit,  either  directly  or  indirect- 
ly, to  any  business  enterprise  in  aid  of  any 
individual,  association,  or  corporation,  since 
the  building  of  a  railroad  is  not  within  it- 
self an  exercise  of  governmental  power,  but 
is  a  business  enterprise.  Atkinson  v.  Board 
of  County  Commissioners,  28:  412,  108  Pac. 
1046,  18  Idaho,  282.  (Annotated) 
For  teachers'  training  school. 

84.  The  maintenance  of  a  training  school 
for  teachers  is  within  the  scope  and  pur- 
pose of  a  county  government,  for  which  it 
may  authorize  the  issuance  of  bonds.  Cox 
V.  Pitt  County,  16:  253,  60  S.  E.  516,  146  N. 
C.  584. 

3.  Authorizing;  elections. 

(See   also    same   heading   in  Digest   L.R.A. 
1-10.) 

85.  An  appropriation  authorized  by  the 
voters  is  not  invalid  because  the  proposal 
on  which  it  was  submitted  mentioned  ob- 
jects in  the  disjunctive,  where  the  disjunc- 
tive propositions  are  but  details  which  may 
arise  in  carrying  out  the  enterprise,  as 
where  the  proposed  object  is  the  acquisi- 
tion of  sites  for  wharves  and  docks  and  of 
the  rights  and  interests  necessary  to  be  ac- 
quired in  aid  of  said  improvement,  "or  of 
securing  the  drainage  or  commercial  pub- 
lic facilities  and  benefits  to  be  derived 
therefrom."  Blaine  v.  Hamilton,  35:  577, 
116  Pac.  1076,  64  Wash.  353. 

86.  The  test  of  whether  a  proposition 
for  issuance  of  public  bonds  is  single,  so 
that  it  cannot  be  submitted  to  the  voters 
in  combination  with  others,  is  not  its 
ability  to  stand  alone,  but  whether  or  not 


BONDS,  III.  b,  3. 


311 


the  several  parts  of  a  project  are  so  re- 
lated that,  united,  they  form  in  fact  but 
one  rounded  whole.  Blaine  v.  Hamilton, 
35:  577,  116  Pac.   1076,  64  Wash.  353. 

87.  Bonds  for  the  improvement  of  the 
harbor  facilities  of  a  county  are  not  in- 
valid because  the  proposition  to  issue  them 
•was  submitted  to  vote  as  a  single  one,  while 
the  total  sum  is,  by  the  resolution  for  sub- 
mission, divided  into  separate  amounts  for 
excavation  of  a  canal  connecting  two  bodies 
of  water,  for  improving  the  channel  of  a 
river,  for  diverting  tlie  waters  of  another 
river,  and  for  the  acquisition  of  sites  for 
wharves  and  docks  and  other  necessary 
rights  and  interests  in  aid  of  the  improve- 
ment, if  the  separate  items  provided  for  are 
BO  naturally  and  necessarily  related  that 
they  are  in  fact  a  single  project  consisting 
of  interdependent  parts.  Blaine  v.  Hamil- 
ton, 35:  577,  116  Pac.  1076,  64  Wash.  353. 

88.  A  proposition  attempting  to  refer 
to  the  qualified  property  taxpaying  voters 
of  a  city  the  question  whether  the  city 
shall  be  allowed  to  become  indebted  for 
"fire  department  improvements,"  under  a 
constitutional  provision  conferring  power 
upon  municipal  corporations  to  become  in- 
debted in  an  amount  exceeding  5  per  cent 
of  the  valuation  of  the  taxable  property 
for  the  purpose  of  purchasing,  construct- 
ing, or  repairing  "public  utilities"  to  be 
owned  exclusively  by  the  city  when  au- 
thorized by  a  majority  of  the  qualified 
property  taxpaying  voters  thereof,  is  too 
general,  as  it  does  not  apprise  the  voters 
of  the  nature  of  the  specific  utility  the 
city  wishes  to  purchase,  construct,  or  re- 
pair, and  therefore  renders  void  an  elec- 
tion held  for  the  purpose  of  voting  on 
such  general  proposition.  Coleman  v. 
Frame,  31:  556,  109  Pac.  928,  26  Okla.  193. 
Notice   of  election. 

89.  The  issuing  and  sale  of  municipal 
bonds  which  have  previously  been  confirmed 
and  validated  in  a  proper  proceeding 
under  a  statute  conferring  power  upon 
the  courts  to  determine  whether  a  given 
municipality  seeking  to  issue  bonds  had 
complied  with  all  of  the  constitutional 
prerequisites  cannot  be  enjoined  by  tax- 
payers upon  the  ground  that  the  consti- 
tutional prerequisites  as  to  notice  of  elec- 
tion, and  as  to  submission  of  the  ques- 
tions of  issuing  bonds  for  diff'erent  pur- 
poses, so  that  the  bonds  for  each  specific 
purpose  could  be  voted  for  or  against  sepa- 
rately, were  not  complied  with.  Holton  v. 
Camilla,  31:  116,  68  S.  E.  472,  134  Ga. 
560. 

90.  As  the  duties  of  a  city  auditor  in 
issuing  notice  of  a  municipal  bond  issue 
election  are  purely  ministerial,  such  notice 
must  follow  the  terms  and  conditions  of  the 
resolution  authorizing  the  election.  Stern 
V.  Fargo,  26:  665,  122  N.  W.  403,  18  N.  D. 
289. 

91.  A  resolution  of  a  city  council  pro- 
viding for  the  issuance  of  $100,000  in  bonds, 
or  such  part  thereof  as  may  be  required  for 
the  construction  of  a  waterworks  pumping 
station  and  electric  light  plant,  and  a  notice 
Digest  1-52  Ii.R.A.(N.S.) 


of  an  election  to  vote  on  such  issuance,  in 
the  same  language  as  the  resolution,  do  not 
state  the  amount  of  the  bonds  to  be  voted 
upon,  within  the  meaning  of  a  statute  re- 
quiring such  notice  to  state  the  amount  of 
the  bonds  to  be  issued,  as  thereunder  voters 
are  entitled  to  know  definitely  what  is 
proposed  in  the  way  of  increasing  the  mu- 
nicipal indebtedness;  and  an  election  held 
pursuant  to  such  defective  notice  is  invalid. 
Stern  v.  Fargo,  26:  665,  122  N.  W.  403,  18 
N.  D.  289. 

92.  A  resolution  of  a  city  council  pro- 
viding for  a  bond  issue  election,  and  a  notice 
of  such  election,  under  a  statute  requiring 
that  the  question  of  issuing  bonds  for  the 
construction  of  waterworks  shall  be  submit- 
ted to  the  voters  of  the  city  after  notice 
stating  the  purpose  for  which  the  bonds  are 
to  be  issued,  must  both  state  the  specific 
purpose  for  which  the  bonds  are  to  be  is- 
sued. Stern  v.  Fargo,  26:  665,  122  N.  W. 
403,  18  N.  D.  289. 

93.  A  resolution  of  a  city  council  pro- 
viding for  an  election  to  vote  on  the  issu- 
ance of  bonds,  and  the  notice  by  the  city 
auditor  of  such  election,  which  state  the 
purposes  of  the  bond  issue  to  be  for  the 
construction  of  a  waterworks  pumping 
station  and  to  install  an  electric  light 
plant  in  connection  therewith,  state  two  in- 
dependent purposes  in  one  proposition,  by 
reason  of  which  the  voter  must  vote  either 
for  or  against  both,  whereas  he  is  entitled 
to  vote  for  or  against  eithes,  separately; 
and  an  election  made  pursuant  to  such 
resolution  and  notice  is  thereby  rendered 
invalid.  Stern  v.  Fargo,  26:  665,  122  N.  W. 
403,  18  N.  D.  289. 

94.  The  issuing  of  bonds  by  a  city  for 
the  construction  of  waterworks  and  for  an 
electric  light  plant  being  for  different  pur- 
poses, a  resolution  of  the  city  council  pro- 
viding for  an  election  to  vote  on  the  issu- 
ance of  bonds  for  the  construction  of  a 
waterworks  pumping  station,  and  an  elec- 
tric light  plant  in  connection  with  such 
station,  does  not  provide  for  the  submission 
of  the  question  of  the  issuance  of  bonds  for 
a  single  purpose  by  the  use  of  the  phrase 
"in  connection  with,"  so  as  not  to  fall  with- 
in the  rule  that  two  independent  proposi- 
tions cannot  be  so  submitted  as  to  require 
a  vote  for  or  against  both.  Stern  v.  Fargo, 
26 :  665,  122  N.  W.  403,  18  N.  D.  289. 

(Annotated) 
Who  entitled  to  note. 

95.  Women  entitled  to  vote  "at  any  dis- 
trict meeting  or  school  election"  may  law- 
fully vote  on  the  question  of  the  issuance 
of  school  bonds.  Olive  v.  School  Dist.  No.  1, 
27:  522,  125  N.  W.  141,  86  Neb.  135. 

(Annotated) 
Two-thirds   vote. 

96.  The  submission  to  the  voters  of  a 
mimicipal  corporation,  of  the  question  of 
issuing  bonds  for  a  public  improvement, 
is  not  invalid  because  the  statu':3  author- 
izing it  does  not  require  approval  by  a 
two-thirds  majority  of  the  voters  as  re- 
quired by  the  Constitution,  since  the  stat- 
ute  need    not   repeat    the    requirements   of 


312 


BONDS,  III.  b,  4— IV, 


thixt  instrument.     Render  v.  Louisville,  32: 
530,  134  S.  W.  458,  142  Ky.  409. 

!)7.  Ballots  rejected  ao  unintelligible  or 
illegal  should  not  be  counted  in  determin- 
ing the  total  vote  cast  upon  a  proposition 
to  issue  bonds,  under  a  statute  requiring 
its  adoption  by  three  fifths  of  the  qualified 
voters  of  the  town  or  city  voting  at  the 
election.  State  ex  rel.  Short  v.  Clausen, 
45:  714,   130   Pac.   479,   72    Wash.  409. 

(Annotated) 

4.  Fomi;  conditions  and  regulations  of 
issue. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Conditions  precedent  to  raising  fund  for 
erection  of  school  building,  see  Public 
Moneys,    1. 

98.  A  heading  "manual  training  school 
bond"  of  a  certain  city  is  sufficient  as  a 
name  for  a  bond  issued  by  the  city  to  erect 
a  certain  memorial  school  of  that  char- 
acter, to  comply  with  the  statute  requiring 
bonds  to  bear  "an  appropriate  name  indi- 
cating the  purpose  of  their  issue."  Maxcy 
v.  Oshkosh,  31:787,  128  N.  VV.  899,  144 
Wis.  238, 

Providing   means    for   paying. 

99.  A  provision  in  an  c -dinance  au- 
thorizing a  bond  issue  of  a  certain  amount, 
for  a  tax  lev^  to  pay  the  principal  and  in- 
terest on  the  bonds  is  a  sufficient  compli- 
ance with  a  statute  requiring  a  provision 
for  a  tax  to  pay  the  principal  and  interest 
within  twenty  years,  where  the  bonds  are 
to  bear  interest  at  a  specified  per  cent, 
since  the  amount  of  the  tax  levy  is  ca- 
pable of  easy  calculation,  and  it  is  not 
necessary  to  specify  tlie  amount  to  be 
raised  in  dollars  and  cents.  Maxcy  v.  Osh- 
kosh, 31:787,  128  N.  VV.  899,  144  Wis. 
238. 

100.  Under  a  statute  requiring  the 
system  or  plan  proposed  for  the  acquisition 
of  a  public  improvement  to  be  submitted 
to  the  vote  of  the  people,  the  manner  of 
payment  of  bonds  should  be  submitted,  as 
well  as  the  question  of  their  authorization. 
Hansard  v.  Harrington,  24:  1273,  103  Pac. 
40,  54  Wash.  161. 

Negotiable   bonds. 

101.  The  words  of  negotiability  cannot  be 
ignored  and  recovery  permitted  as  upon  war- 
rants, in  case  a  municipal  corporation  is- 
sues negotiable  bonds  without  authority,  so 
that  the  instruments  are  void.  Swanson  v. 
Ottumwa,  5:  860,  106  N.  W.  9,  131  Iowa,  540. 

6.  Who  are,   and  rights  of,   bona  fide 
holders. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Presumption  and  burden  of  proof,  see  Evi- 
dence,  540,  541. 

Findings  by  court  in  suit  on  county  aid 
bonds,  see  Trial,  1109. 

Digest  1-52  I^R.A.(N.S.) 


102.  Purchasers  of  municipal  bonds  are 
charged  with  notice  of  the  authority  and 
power  of  tiift  municipality  to  issue  them 
as  conferred  by  statute.  Swanson  v.  Ot- 
tumwa, 5:  860,  106  N.  W.  9,  131  Iowa,  540. 

103.  Iho  incidental  benefit  to  a  municipal 
corporation  through  the  loca,tion  within  its 
limits  of  a  railroad  depot  will  not  author- 
ize a  recovery  against  it  upon  a  quantum 
meruit  by  purchasers  of  bpnds  which  it  is- 
sued without  authority  and  donated  to  the 
railroad  com])any  to  pay  for  the  needed 
land,  where  the  company  paid  for  the  land 
out  of  its  own  funds,  and  sold  the  bonds  to 
reimburse  itself  for  the  outlay.  Swanson 
V.  Ottumwa,  5:  860,  106  N.  W.  9,  131  Iowa, 
540. 

104.  Bonds  issued  by  a  county  in  aid  of  a 
railroad  company  are  not  invalidated  in 
the  hands  of  a  bona  fide  holder  for  value  by 
the  failure  of  the  company  to  comply  with 
a  condition  on  which  they  were  issued,  that 
the  road  should  be  located  and  constructed 
upon  a  certain  route  through  the  county, 
and  that  the  money  received  from  the  bonds 
should  be  expended  therein.  Quinlan  v. 
Green  County,  19:  849,  157  Fed.  33,  84  C.  C. 
A.  537.  (Annotated) 

6.  Estoppel  as  to;  ratification. 

(See  same  heading  in  Digest  L.R.A.  1-70.) 

7.  Payment ;  time  and  place  of. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

105.  A  general  judgment  cannot  be  en- 
tered against  a  municipal  corporation  upon 
improvement  bonds  which  were  issued  un- 
der a  statute  which  became  a  part  of  the 
contract,  and  provided  that  they  should  be 
paid  only  out  of  funds  collected  from  special 
assessments  upon  the  benefited  property. 
Meyer  v.  San  Francisco,  10:  no,  88  Pac. 
722,  150  Cal.  131. 

8.  Actions  and  defenses;  remedies. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

106.  The  holder  of  municipal  bonds  may 
maintain  an  action  upon  them  against  the 
municipality  to  prevent  their  being  barred 
by  the  statute  of  limitations,  although  they 
are  payable  only  out  of  funds  to  be  raised 
by  special  assessment  against  property  bene- 
fited. Meyer  v.  San  Francisco,  10:  no,  88 
Pac.  722,  150  Cal.  131. 

IV.  State  bonds. 

Statute  limiting  time  for  presentation  of, 
see  Constitutional  Law,  817;  Limi- 
tation  OF   Actions,   5. 

Impairing  contract  right  to  use  state  bonds 
in  payment  for  state  lands,  see  CONSTl* 
TUTiONAL  Law,  817. 


BONUS— BOOKS. 


313 


Repeal  of  statute  authorizing  tender  in  , 
payment  for  state  lands,  see  Statutes,  : 
332. 

Taxation  of,  see  Taxes,  82,  83. 

107.  Under  a  statute  authorizing  the 
sale  of  state  bonds  for  not  less  than  par, 
the  sale  must  be  at  the  face  value  plus  the 
amount  of  accrued  interest,  or  the  interest 
must  run  from  date  of  sale.  Smith  v. 
State  ex  rel.  McNeil,  35:  789,  56  So.  179, 
99  Miss.  859.  (Annotated) 

lUiS.  'iliat  state  officials  sold  state  bonds 
for  the  amount  of  the  principal  under  the 
promise  that  they  would  carry  accrued  in- 
terest, in  good  faith,  acting  under  the  mis- 
taken belief  that  thej'  would  in  fact  do  so, 
does  not  entitle  the  purchaser  to  enforce 
payment  of  such  interest  contrary  to  the 
provisions  of  the  statute.  Smith  v.  State 
ex  rel.  McNeil,  35:789,  56  So.  179,  99 
Miss.  859. 

109.  State  officials  cannot  be  compelled 
to  issue  warrants  for  the  payment  of  that 
portion  of  interest  on  state  bonds  which 
had  accrued  when  the  bonds  were  issued, 
where  the  statute  prohibits  sale  of  the 
bonds  for  less  than  par,  and  the  sum  re- 
ceived by  the  state  for  the  bonds  equaled 
the  principal  only.  Smith  v.  State  ex  rel. 
McNeil,   35:  789,   56   So.   179,   99   Miss.   859. 

110.  The  burning  of  the  state  capitol 
building  creates  an  emergency  for  the  se- 
curing of  money  with  which  to  replace  it, 
within  the  provision  of  a  Constitution  au- 
thorizing the  submission  to  the  voters  of 
a  proposition  to  issue  bonds  in  case  of  un- 
foreseen emergencies.  Church  v.  Hadley, 
39:  248,    145   S.   W.   8,   240  Mo.   680. 

111.  The  fund  commissioners  may,  after 
they  have  failed  to  sell  the  bonds  by  their 
own  eft'orts,  pdy  a  commission  to  brokers 
to  dispose  of  them,  under  a  statute  provid- 
ing for  the  issuance  of  a  certain  amount  of 
bonds  to  build  a  state  capitol,  which  shall 
be  sold  for  not  less  than  par,  and  the  pro- 
ceeds, which  are  estimated  by  the  statute  to 
equal  the  aggregate  amount  of  bonds  au- 
thorized to  be  issued,  "more  or  less,"  ap- 
propriated to  the  con.-truction  of  the  build- 
ing. Church  V.  Hadley,  39:  248,  145  S.  W. 
8,  240  Mo.  680. 

(Annotated) 


BONUS. 

Illegal,  to  secure  discharge  of  mortgage,  see 
Assumpsit,  49. 

Contract  to  pay  bonus  to  electric  railway, 
see  Contracts,  151,  357,  360;  Evi- 
dence, 1003. 

Provision  for  bonus  to  corporate  official 
executing  contract  for  corporation,  see 
Contracts,  458. 

To  purchasing  agent  to  secure  his  business, 
see  Contracts,  598. 

Agreement  to  pay,  on  repurchase  by  corpo- 
ration of  stock  sold,  see  Cobpobations, 
80. 

Digest  1-52  L.R.A.(N.S.) 


Issue  of  stock  as  bonus  for  use  of  names  as 
directors,  see  Cobporations,  213. 

Election  to  treat  mortgage  as  due,  prevent- 
ing mortgagee's  recovery  of,  see  Elec- 
siON  OF  Remedies,  37. 

Evidence  as  to  usury  because  of  bonus  to 
lender's  agent,  see  Evidence,  1802. 

Recovery  of  secret  bonus  pail  to  insurance 
agent,    see    Insurance,    30a. 

Right  of  life  tenant  to  bonus  paid  for  ex- 
tension of  lease,  see  Life  Tenants,  6. 

To  servant,  see  Master  and  Servant,  80- 
82. 

Compelling  one  joint  owner  to  account  to 
co-owners  for  bonus  paid  him,  see 
Trusts,  119. 

Effect  of  agent's  bonus  to  render  loan 
usurious,   see  Uslby,   27-29. 


BOOK  ACCOUNTS. 

Manner  of  pledging,  see  Pledge  and  Col- 
lateral  Security,   1. 
In  general,  see  Accounts. 


BOOKKEEPING. 


Prest  ribing  uniform  system  of  accounting 
and  bookkeeping  for  carriers,  see  Con- 
stitutional Law,  114,  442;  Inter- 
state Commerce  Commission,  6-10. 


BOOK   MAKING. 


See  Contracts,  583;   Gaming,  22-26;   Li- 
cense, 30,  42. 


BOOKS. 

Of  account  generally,  see  Account  Books. 

Contempt  in  refusing  to  turn  over  corpo- 
rate books  to  receiver,  see  Appeal  and 
Error,   103. 

Effect  of  failure  to  keep  or  produce,  on  right 
to  discharge  in  bankruptcy,  see  Bank- 
ruptcy, 152,  153. 

Contempt  of  officers  for  refusing  to  produce 
books,  see  Contempt,  14,  36,  37. 

Right  to  inspect  books  of  corporation,  see 
Corporations,  V.  e,  3. 

Transfer  of  stock  on  books  of  corporation, 
see  Corporations,  223-238. 

Compulsory  production  of  books  or  docu- 
ments, see  Criminal  Law,  108-118; 
Discovery  and  Inspection,  I. 

Secondary  evidence  of  contents,  see  Evi- 
dence,  707. 

Provision  in  insurance  policy  as  to  keeping 
set  of  books,  see  Insurance,  III.  e,  1, 
d. 

Right  to  inspect  books  of  partnership,  see 
Partnership,  57,  58. 

Right  to  inspect  books  of  municipality,  see 
Municipal  Corporations,  II.  i. 


314 


BOOKSELLER— BOUNDARIES,  1. 


Inspection  of,  as  unlawful  search,  see 
Search  and   Seizurk,   3. 

As  baggage,  see  Carriers,  37-42,  702. 

Implied  contract  to  furnish  manuscript  for, 
see  Contracts,  12.  « 

Copyright  of,  see  Copyright. 

Damages  for  loss  or  destruction  of  manu- 
script, see  Damages,  450,  451. 

Books  purchased  by  wife  as  a  "necessary," 
see  Husband  and  Wife,  12. 

Injunction  against  publication  of,  see  In- 
junction, 99. 

Injunction  against  wrongful  use  of  name 
of,  see  Injunction,  395, 

Criticism  of,  as  libel,  see  Libel  and 
Slander,  21. 

Fraud  in  sale  of,  see  Principal  and  Agent, 
85. 

Sale  of,  on  instalment  plan,  see  Sale,  129. 

Rescission  of  contract  of  purchase,  see  Sale, 
197,  218. 

In  schools,  see  Schools,  V*rooflr 

Question  for  jury  whether  book  is  obscene, 
see  Trial,  263. 


BOOKSELLER. 


Liability  of,  on  representations,  see  Princi- 
pal and  Agent,  87. 


BOOMS. 

Injury  to  water  power  caused  by,  see  Ac- 
tion OR  Suit,  93;  Limitation  of 
Actions,  80,  203;  Nxhsances,  200. 

Right  of  riparian  owner  to  maintain,  see 
Waters,  110. 


♦  ♦» 

BOROUGH. 

See  Municipal  Corporations. 
^~»^ ' 


BORROWING   MONET. 

Authority  of  bank  cashier  as  to,  see  Banks, 

27,  29. 
Agent's  authority  as  to,  see  Principal  and 

Agent,  42,   73. 
Power    of    private    corporation    as    to,    see 

Corporations,  86. 
Power  of  corporate  officer  as  to,  see  Corpo- 
rations,   143. 
Authority  of  county  as  to,  see  Counties,  II. 

b. 
Power  of  municipality  as  to,  see  Munticipal 

Corporations,  II.  e. 
Authority  of  town  officers  as  to,  see  Towns, 

10-12. 
Digest  1-52  L.R.A.(N.S.) 


BOTTLE. 

Injury  to  patron  at  place  of  amusement 
by  bottle  dropped  from  grand  stand, 
see  Amusements,  6. 

Placing  labels  on,  as  dangerous  employ- 
ment, see  Master  and  Servant,  151. 


BOULDER. 


Injury  to  passenger  by  boulder  rolling  down 
mountain  side,  see  Carriers,  215,  216. 


BOULEVARD. 


Prohibiting  erection  of  advertising  struc- 
ture near  to,  see  CoNSTiTirriONAL  Law, 
320. 


BOUNDARIES. 


I.  Of  nation,  state  or  municipality,  1— 
5. 
II.  Of  private  property,   6—18. 

'  a.  In    general;    rules    for   fixing, 
6-9. 
h.  By    highway    or    passageway, 

10-14. 
c.  By  waters,  15—18. 

Changing  boundaries  of  school  districts,  see 
Schools,  42-45. 

J.  Of  nation,  state  or  municipality. 

(See   also   same   heading   in  Digest  L.R.A. 
1-70.) 

Effect  of  change  of  boundary  lines  on  domi- 
cil,  see  Domicil,  8. 

River  as  state  bonnndary. 

Jurisdiction    of    action    arising    over    river 
forming  boundary,  see  Courts,  19. 

1.  If  a  navigable  river  dividing  the  ter- 
ritory of  two  states  cuts  a  new  channel 
when  at  flood  stage,  and  by  a  sudden  and 
violent  eruption  of  the  water,  due  to  an  ice 
gorge,  visibly  tears  away  and  submerges 
lands  upon  one  side,  the  state  boundary  re- 
mains stationary  at  its  former  location,  and 
the  titles  and  boimdaries  of  private  owners 
remain  unchanged.  Fowler  v.  Wood,  6:  162, 
85  Pac.  763,  73  Kan.  511. 

2.  The  dredging  of  a  new  channel  by 
tne  government  in  a  river  which  forms 
the  boundary  between  two  states  does  not 
change  the  state  boundary  from  the  middle 
of  the  former  main  navigable  channel  to 
the  newly  formed  channel.  Whiteside  v. 
Norton,  45:  112,  205  Fed.  5,  123  C.  C.  A.  313. 

3.  Under  the  concurrent  jurisdiction 
over  boundary  rivers  conferred  upon  a  state 
by  Congress,  it  may  punish  one  for  fishing 
with  nets  without  its  license,  on  the  por- 
tion of  the  river  within  the  territorial  juris- 
diction of  the  neighboring  state,  although 


BOUNDARIES,  II.  a,  b. 


315 


he  has  a  license  from  the  latter  state.  State 
V.  Moyers,  41 :  366,  136  N.  W.  896,  155  Iowa, 
678.  (Annotated) 

4.  The  boundary  and  jurisdiction  of  a 
state  which  has  been  along  the  main  chan- 
nel of  a  stream  is  not  changed  by  the  con- 
struction by  a  railroad  company,  of  a  dam 
which  throws  the  main  channel  to  the  other 
side  of  an  island  for  the  purpose  of  conven- 
ieiuo  in  the  ci>nstruction  of  a  bridge.  State 
V.  owen,  39:  200,  135  N.  W.  494,  149  Wis. 
203.  (Annotated) 
Of  municipality  or  township. 
Domicil  of  one  through  whose  dwelling  runs 

the  boundary  line  between  two  munici- 
palities, see  Domicil,   1. 

5.  A  municipal  corporation  bounded  by 
a  navigable  river  has  no  jurisdiction  over 
the  sale  of  intoxicating  liquor  on  a  pa- 
vilion erected  on  spiles  driven  into  the  soil 
jf  the  river,  and  reached  from  the  shore 
only  by  boat  or  a  float  fastened  by  ropes 
one  of  which  is  attached  to  a  bulkhead  on 
the  shore.  Treuth  v.  State,  47:  1161,  87 
Atl.   663,   120  Md.  257.  (Annotated) 

//.  Of  private  property. 

a.    In   general;   rules  for  fixing. 

(See   also   same   heading   in  Digest   L.R.A. 

1-10.) 

Adverse  possession  beyond,  see  Adverse 
Possession,  I.  b. 

Loss  of  title  to  property  drifting  over  bound- 
ary line,   see  Adjoining  Landowners. 

Contract  as  to,  without  consideration,  see 
Contracts,  54. 

Easement  in  joint  stairway  on,  see  Ease-' 
MENTS,  11,  49. 

Encroachment  beyond,  see  Encroach- 
ments; Injunction,  22,  34;  Master 
AND  Servant,  1012;  Party  Wall,  8. 

Jurisdiction  of  equity  of  actions  affecting, 
see  Equity,  9. 

Estoppel  to  assert  true  boundary  lines,  see 
Estoppel,  58,  151,  172. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  505,  619. 

Admissibility  of  evidence  as  to,  see  Evi- 
dence, 1453. 

Fences   on   boundary  line,   see   Fences,   11. 

Rights  as  to  trees  on  boundary  line,  see 
Highways,   105;   Trees,   1. 

Easement  to  maintain  pipes  on,  see  In- 
junction, 178. 

Dismissal  of  suit  to  enjoin  interference 
with  construction  of  fence  as  bar  to 
action  to  establish  boundary,  see  Judg- 
ment, 115-117. 

Of  mining  location,  see  Mines,  8-12. 

Indication  of,  upon  plat,  see  Plat. 

Mistake  of  surveyor  employed  to  locate,  see 
Surveyors. 

Question  for  jury  as  to,  see  Trial,  619. 

6.  Where  a  well  has  been  put  down  by 
adjoining  owners  on  what  they  supposed  to 
be  the  division  line,  but  what  proved  to  be  a 
short  distance  therefrom,  under  an  agree- 
Digest   1-52  L.R.A.(N,S.) 


ment  between  them  and  the  well  digger  that 
the  three  were  to  own  the  well,  and  that  the 
ownership  "should  remain  as  it  was,  regard- 
less of  any  change  in  the  line,"  and  an 
agreement  in  writing,  drawn  up,  but  not 
signed,  and  subsequently  the  adjoining  own- 
ers purchase  the  interest  of  the  well  digger, 
and  expend  other  sums  in  improving  the 
well,  tlie  digging  and  location  of  the  well 
is  in  no  manner  a  settlement  of  the  bound- 
ary line  between  the  two  lots.  Johnson  v. 
Bartron,  44:  557,  137  N.  W.  1092,  23  N.  D. 
629. 

7.  A  property  owner  is  not  entitled  to 
rely  on  the  erection  of  a  fence  by  a  neighbor 
as  the  establishment  of  a  boundary  line, 
where  the  fence  existed  only  a  comparative- 
ly short  period  of  time,  and  the  neighbor 
was  honestly  mistaken  in  erecting  it,  while 
the  proj^erty  owner  had  the  means  of  know- 
ing that  it  was  not  on  the  true  Jine.  Cot- 
trell  V.  Pickering,  10:  404,  88  Pac.  696,  32 
Utah,  62. 

8.  A  railroad  company  is  presumed,  af- 
ter the  lapse  of  twenty  years,  to  have  ac- 
quiesced in  the  fact  that  a  fence  placed 
along  land  dedicated  for  depot  purposes,  but 
not  in  fact  needed  for  public  use,  represents 
the  true  boundary  line,  although  neither  it 
nor  the  adjoining  owner  is  required  by  law 
to  maintain  the  fence.  Chicago,  M.  &  St.  P. 
R.  Co.  V.  Hanken,  19:  216,  118  N.  W.  527, 
140  Iowa,  372. 

9.  The  mere  location  by  an  abutting 
property  owner  of  a  fence  for  his  own  con- 
venience, without  any  reference  to  the 
boundary  between  his  property  and  a  pub- 
lic alley,  will  give  the  public  no  right  to 
the  inclosed  space  between  the  true  bounda- 
ry and  the  fence.  Weber  v.  Detroit,  36: 
1056,  123  N.  W.  540,  159  Mich.  14. 

Z».  By  highway  or  passageway. 

(See   also    same   heading   in   Digest   L.R.A. 

1-10.) 

10.  The  mere  bounding  of  land  on  a 
private  pass  way  does  not  carry  title  to 
the  fee  of  the  way,  in  the  absence  of  any- 
thing to  show  an  intention  that  it  should 
do  so.  Seery  v.  Waterbury,  25:  681,  74  Atl. 
908,  82  Conn.  567. 

11.  A  deed  of  a  tract  of  land  giving  the 
grantee  the  right  to  open  and  use  a  road 
between  the  land  conveyed  and  that  of  a 
third  person,  and  to  extend  such  road  be- 
tween the  lot  conveyed  and  that  of  another 
person  specified,  conveys  all  the  land  up  to 
such  road,  although  a  slight  bend  occurs  at 
the  point  of  extension,  and  the  boundary,  as 
contained  in  the  deed,  is  a  specified  course 
"with  line  of  alle5^s."  Clayton  v.  Gilmer 
Countv  Court,  2:  598,  52  S.  E.  103,  58  W. 
Va.  253. 

12.  A  deed  which  calls  for  the  line  of  a 
private  road  as  a  boundary  of  the  tract  by 
it  conveyed,  and  gives  to  the  grantee  the 
right  to  open  and  use  such  road,  does  not 
pass  to  the  grantee  the  title  in  fee  to  any 
part  of  the  road.  Clayton  v.  Gilmer  Coun- 
ty Court,  2:  598,  52  S.  E.  103,  58  W.  Va.  253. 


316 


BOUNDARIES,  II.  c— BRAKEMEN. 


13.  The  bounding  of  a  grant  upon  a 
private  alley  which  tiie  grantor  has  cut  off 
from  one  end  of  the  property  granted,  and 
whicli  is  open  and  in  use  at  the  time  of 
the  grant,  will  carry  title  to  tin;  alley,  in 
the  absence  of  anything  to  indicate  a  con- 
trary intention.  Saccone  v.  West  End 
Trust  Co.  24:  539,  73  Atl.  971,  224  Pa.  554. 

(Annotated) 

14.  Title  to  a  private  alley  will  not  pass 
with  a  grant  of  land  bounding  thereon,  if 
the  lot  is  conveyed  by  metes  and  bounds, 
and  the  alley,  as  such,  is  not  made  a 
boundary.  Brown  v.  Oregon  Short  Line  K. 
Co.  24:  86,   102  Pac.  740,  36  Utah,  257. 

c.  By  waters. 

(See  also   same   heading  in   Digest   L.R.A. 
1-7  O.J 

Boundary  as  between   individual  and  pub- 
lic, see  Waters,  I.  c,  4. 
Boundary    under   grant    by    government   of 

land  under  water*,  see  Waters,  90-96, 
Change  of,  bv  accretions,  see  Waters,  112, 

113,  152-159. 
Title  to  island  as  between  individuals  and 

public,  see  Waters,  26,  91,  93,  95,  114- 

116. 
Title  to  island  as  between  individuals,  see 

Waters,  164. 
Effect    of    deposit    of    alluvion    upon,    see 

Waters,  160-163. 
See  also  supra,  1. 

15.  The  word  "seashore,'  in  a  convey- 
ance describing  land  granted  as  "situate  on 
the  seashore"  and  bounding  it  "on  the  west 
by  the  seashore,"  must  be  taken  to  mean  the 
"foreshore"  in  its  strict  legal  sense,  i.  e., 
the  land  situate  between  medium  high  and 
low  water  marks.  Mellor  v.  Walmesley,  4 
B.  R.  C.  728,  [1905]  2  Ch.  164.  Also"  Re- 
ported in  74  L.  J.  Ch.  N.  S.  475,  53  Week. 
Rep.  581,  93  L.  T.  N.  S.  574,  21  Times 
L.  R.  591.  (Annotated) 
River. 

Referring  to  river  as  boundary  in  deed,  see 

Deeds,  40. 
Presumption  as  to,  see  Evidence,  709. 

16.  A  boundary  in  a  state  patent  of  land 
said  to  lie  on  the  bank  of  a  river,  beginning 
at  a  tree  on  the  east  shore  of  the  river, 
thence  around  the  land  to  the  river,  and 
then  "up  and  along  the  same"  to  the  place 
of  beginning,  does  not  prevent  the  title 
from  extending  to  the  thread  of  the  stream. 
Fulton  Light,  Heat,  &  Power  Co.  v.  State, 
37:  307,  94  N.  E.  199,  200  N.  Y.  400. 
Pond. 

17.  A  call  in  a  deed  to  a  well-known  and 
long-used  pond  stops  at  the  edge  of  the 
pond,  and  does  not  carry  title  to  the  center. 
Patapsco  Guano  Co.  v.  Bowers- White  Lum- 
ber Co.  13:  318,  59  S.  E.  538,  146  N.  C.  187. 
Meandered  xiraters. 

18.  The  section  lines  of  the  government 
surveys  of  land  bordering  on  water  courses 
maintain  their  course  to  the  water's  edge, 
and  do  not  stop  at  the  meander  lines.  Pe- 
Digest  1-52  L.R.A.(N.S.) 


oria  V.  Central  Nat.  Bank,  12:  687,  79  N.  E. 
296,  224  111.  43. 


BOUNDARY  VrATX. 

Effect  of  extending  onto  adjoining  prop- 
erty beneath  surface,  upon  right  of  ad- 
joining owner  to  use  it,  see  Pabtt 
Wall,  8. 


BOWLING  ALLEY. 


As  nuisance,  see  Courts,  160;   Municipai. 
Corporations,  150;   Nuisances,  16. 


BOX  CARS. 


Grant  by  railroad  company  of  exclusive 
right  to  use  box  cars  for  advertising 
purposes,  see  Corporations,  53. 


BOYCOTT. 


As  conspiracy,  see  Conspiracy,  III.  b. 
Injunction     against,     see     Constitutional 

Law,  754;  Injunction,  134,  137,  153- 

162,  443. 
Power  of  minority  stockholder  to   prevent 

directors  of  company  from  abandoning 

injunction     suit    against    boycott,    see 

Corporations,  258. 
jCharge  of,  as  libel,  see  Libel  and  Slander, 

34. 
By  insurance  company,  see  Monopoly  and 

Combinations,  82. 


BOYS. 


See  Infants. 


BRAKE. 

Carrier's  liability  for  injury  due  to  fellow 
passenger  releasing  set  brake,  see  Car- 
riers, 232, 

Injury  to  passenger  as  result  of  defect  in, 
see  Carriers,  303,  304. 

Servant's  assumption  of  risk  from  defects 
in,  see  Master  and  Servant,  540. 


BRAKEMEN. 


Authority  of,  to  eject  trespassers,  see  Cab- 
riers,  397-400. 

As  fellow  servants,  see  Master  and  Serv- 
ant, II.  e,  5,  a   (2). 


BRANCH  RAILROAD— BREACH  OF  PROMISE,  II. 


Mastc 


taster's  liability  for  injury  to,  see  Master 
AND  Servant,  II.  a,  4,  d. 
Contributory  negligence  of,  see  Master  and 
Servant,  II.  c. 


317 


BRANCH  RAILROAD. 

Condemnation    of    land    for,    see    Eminent 
Domain,  37,  90-102. 


BRANDS. 

State  regulation  as  to  misbranding  food 
and  drugs  as  interference  with  com- 
merce, see  Commerce,  105-108. 

Admissibility  of  cattle  brands  in  evidence, 
see  Evidence,  716,  1992. 

Opinion  evidence  as  to  inferences  to  be 
drawn  from  appearance  of  cattle 
brands,  see  Evidence,  1181. 

Sale  of  articles  described  as  of  a  particular 
brand,  see  Sale,  96. 


BREACH. 


Of  contract,  sfee  Contracts,  IV.  e. 

Of  covenant,  see  Covenants  and  Con- 
ditions, III. 

Of  condition  in  pardon,  see  CaiMiNAi.  Law, 
306-314. 

Of  peace,  see  Breach  of  Peace. 

Of  promise,  see  Breach  of  Promise. 


BREACH   OF  PEACE. 

Ordinance  punishing  use  of  language  calcu- 
lated to  provoke,  see  Municipal  Cor- 
porations, 213;  Trial,  1080. 

Ambiguity  of  statute  for  punishment  ef, 
see  Statutes,  42,  43. 

i 

1.  Whooping,  yelling,  and  uttering  loud 
and  vociferous  language  to  the  gross  dis- 
turbance of  the  public  peace  is  prohibited 
by  a  statute  providing  that  "every  person 
who  wilfully  and  wrongfully  commits  any 
act  .  .  .  which  grossly  disturbs  the  pub- 
lic peace  or  health  ,  .  .  although  no 
punishment  is  expressly  prescribed  there- 
for by  this  Code,  is  guilty  of  a  misdemean- 
or." Stewart  v.  State,  32:  505,  109  Pac. 
243,  4  Okla.  Crim.  Rep.  564.      (Annotated) 

2.  There  is  no  right  to  display  a  red 
flag  in  a  procession  where  those  composing 
the  procession  know  that  the  natural  and 
inevitable  consequence  will  be  to  disturb 
the  public  peace  and  tranquillity,  in  viola- 
tion of  a  statute  or  ordinance.  People  v. 
Burman,  25:  251,  117  N.  W.  589,  154  Mich. 
150.  (Annotated) 

3.  A  conviction  and  fine  for  being  dis- 
orderly, shooting  a  dog  in  a  street,  and  in- 
sulting a  citizen,  does  not  forfeit  a  peace 
bond  under  statutory  provisions  that  such 
Digest  1-52  I..R.A.(N.S.) 


bond  shall  be  required  upon  apprehension 
that  the  obligor  will  commit  violence  en- 
dangering human  life,  or  a  felony,  or  an 
offense  against  the  person  or  property  of 
another,  and  will  be  forfeited  by  conviction 
of  a  felony  or  an  offense  constituting  a 
breach  of  the  peace.  Ball  v.  Com.  40:  186, 
147  S.  W.  953.  149  Ky.  260.  (Annotated) 
4.  The  habitual  sale  of  pools  on  horse 
races  at  a  track  where  many  persons  are 
assembled  to  witness  the  races  is  an  act 
which  grossly  disturbs  the  public  peace  and 
openly  outrages  public  decency,  within  the 
meaning  of  a  statute  providing  for  the 
punishment  of  such  acts.  State  v.  Ayers, 
10:  992,  88  Pac.  653,  49  Or.  61. 


BREACH  OF  PROMISE. 

/.  In  general,  1. 
II.  Defenses ;  what  will  excuse  hreacJi, 
2-5. 

Survival  of  right  of  action  for,  see  Abate- 
ment and  Revival,  13,  14. 
Effect    of   failure   of    court   to   define   term 

"seduction,"    see    Appeal    and    Error, 

1429. 
Exemplary  damages  for,  see  Damages,  44- 

46. 
Measure  of  damages  for,  see  Courts,  302; 

Damages,  29,  317-320. 
Mitigation   of   damages   for,   see   Damagbs, 

718,  719. 
Aggravation  of  damages  for,  see  Damages, 

729,  730. 
Evidence  in  action  for,  see  Evidence,  804, 

1319,  1813,  2015,  2431. 
Pleading  in  action  for,  see  Pleading,  207. 
Preventing  comments  of  counsel   in   action 

for,  see  Trial,  61. 

I.  In  general. 

(See    also    same   heading   in   Digest   L.R.A. 

1-70.  J 

1.  One  who,  having  engaged  to  marry 
a  woman,  postpones  the  ceremony  because 
of  her  ill  liealth,  undertakes  to  wait  a  rea- 
sonable time  for  her  recovery.  Travis  v. 
Schnebly,  40:  585,  122  Pac.  316,  68  Wash.  1. 

//.  Defenses;  what  will  excuse  breach. 

(See   also   same   heading   in  Digest   L.R.A. 

1-10.) 

2.  A  promise  of  marriage  made  by  a 
man  who,  to  the  knowledge  of  the  promisee, 
was  at  the  time  of  making  the  promise 
married,  is  void  as  being  against  public 
policy,  and  therefore  cannot  be  enforced  by 
action  after  the  death  of  the  promisor's 
wife.  Wilson  v.  Carnley,  1  B.  R.  C.  901, 
[1908]  1  K.  B.  729.  Also  Reported  in  77 
L.  J.  K.  B.  N.  S.  594,  98  L.  T.  N.  S.  265, 
24  Times  L.  R.  277,  52  Sol.  Jo.  239. 

(Annotated) 

3.  A  son  of  consumptive  parents  will 


318 


BREAD— BRICK  YARD. 


not  render  himself  liable  in  damages  for  re- 
fusal to  perform  his  promise  to  marry  a 
woman  afflicted  with  pulmonary  consump- 
tion, although  he  knew  at  the  time  of  mak- 
ing the  promise  that  she  was  so  afflicted, — 
at  least  where  such  marriage  would  violate 
the  spirit  of  the  statute  against  the  spread 
of  s\ich  disease.  Grover  v.  Zook,  7:  582,  87 
Pae.  638,  44  Wash.  489.  (Annotated) 

4.  A  man  is  released  from  his  promise 
of  marriage  if  the  other  party  to  the  con- 
tjact  becomes  ill  without  fault  of  eitlier 
party,  after  the  promise  is  made,  and  fails 
to  recover  her  health  within  a  reasonable 
time  thereafter.  Travis  v.  Schnebly,  40: 
585,  122  Pac.  316,  68  Wash.   1. 

( Annotated ) 

5.  Where  the  defendant's  breach  of  a 
contract  for  marriage  is  complete,  and  the 
plaintiff  has  thereafter  signified  intention 
to  treat  the  contract  as  terminated  ex- 
cept for  action  thereon,  an  offer  by  the  de- 
fendant to  renew  and  perform  constitutes 
no  defense  to  the  action.  Kendall  v.  Dunn, 
43:  556,  76  S.  E.  454,  71  W.  Va.  262. 


^•» 


BREAD. 

Regulating  size  and  weight  of  loaves,  see 
Constitutional  Law,  247,  500;  Mu- 
nicipal   Corporations,    190-192. 

Unfair  competition  by  copying  size,  shape, 
etc.,  of,  see  Unfair  Competition,  7-9. 


BREAKING. 


Sufficiency   of,   to   constitute   burglary,   see 
Burglary,  5-8. 


BREAVING  COMPANY. 

Implied  power  of,  to  construct  saloon  and 
boarding  house,  see  Corporations,  54, 

"'       ^^• 
Contract  by  brewing  company  to  indemnify 

surety  on  bond  of  retailer,  see  CoRPO- 

BATIONS,   60,  93. 


BRIBERY. 


Disbarment  of  attorney  receiving  bribe,  see 
Attorneys,  5. 

Attempt  to  bribe  juror  as  contempt,  see 
Contempt,  7. 

Right  of  citizen  who  has  undergone  punish- 
ment for,  to  vote,  see  Elections,  8. 

Estoppel  of  one  soliciting  bribe  as  officer  to 
deny  his  right  to  act  as  such  officer,  see 
Estoppel,  208. 

Admissibility  of  evidence  to  show,  see  Evi- 
dence, 834,  1640. 

Corroboration  of  testimony  of  accomplice, 
see  Evidence,  2367-2370. 

Charge  of,  as  libel,  see  Libel  and  Slander, 
33. 

1.  The  giving  or  taking  by  members 
of  a  labor  union,  of  strike  benefits,  s\ich  as 
Digest   1-52  L.R.A.(N.S.) 


traveling  expenses  and  allowance  for  main- 
tenance while  on  a  strike,  is  not  bribery. 
Everett  Waddey  Co.  v.  Richmond  Typo- 
graphical Union  No.  90,  5:  792,  53  S.  E.  273, 
105  Va.  188. 

2.  A  member  of  a  board  of  education  of 
a  city,  who  accepts  money  as  a  bribe  to  in- 
fluence his  opinion,  judgment,  and  action  in 
favor  of  letting  or  causing  to  be  let  a  con- 
tract for  cleaning  school  buildings,  has  suf- 
ficient legal  authority  in  that  regard  to  ren- 
der him  guilty  of  bribery  under  Kan.  Gen. 
Stat.  1901,  §  2212,  although  the  board  has  by 
resolution  referred  the  matter  of  cleaning 
the  buildings  to  the  superintendent  of  build- 
ings, who  is  an  employee,  but  not  a  member, 
of  the  board,  where  it  appears  that  the 
member  charged  with  the  offense  let  the 
contract  with  the  approval  of  the  superin- 
tendent of  buildings.  State  v.  Campbell,  9: 
533,  85  Pac.  784,  73  Kan.  688. 

3.  Acceptance  of  a  gift  for  prior  official 
action  without  corrupt  private  understand- 
ing is  not  bribery.  State  v.  Coffey,  39:  704, 
119  Pac.  901,  161  Cal.  433. 

4.  A  coroner  having  the  powers  of  a 
magistrate  in  a  certain  class  of  cases  to  is- 
sue warrants,  hold  examinations,  and  to 
commit  or  discharge  the  accused,  is  within 
the  provisions  of  a  statute  providing  for 
the  punishment  of  a  "judicial  officer"  who 
receives  a  bribe  upon  the  understanding 
that  his  decision  or  other  official  action 
shall  be  influenced  thereby.  People  v.  Jack- 
son, 15:  1 173,  84  N.  E.  65,  191  N.  Y.  293. 

5.  That  a  death  occurred  out  of  the 
county,  and  the  coroner  has  never  viewed 
the  body,  does  not  prevent  his  being  pun- 
ishable under  a  statute  providing  that  a 
judicial  officer  who  receives  a  bribe  upon  an 
agreement  that  his  action,  decision,  or  oth- 
er official  proceeding  shall  be  influenced 
thereby  shall  be  guilty  of  a  felony,  if  the 
act  which  caused  the  death  was  committed 
within  his  jurisdiction,  and,  having  assumed 
to  act  in  the  case,  he  issues  a  warrant  for 
the  apprehension  of  accused,  signed  by  him- 
self as  coroner,  and,  having  the  prisener 
in  his  custody,  he  accepts  a  bribe  to  release 
him.  People  v.  Jackson,  15:  1173,  84  N.  E. 
65,   191   N.  Y.  293.  (Annotated) 


BRICK  KILN. 


Mandamus  to  compel  permit  for,  see  Man- 
damus, 135. 

Prohibiting  erection  of,  within  city  limits, 
see  Municipal  Corporations,  148. 

As  nuisance,  see  Nuisances,  37. 


BRICK  YARD. 


Ordinance  making  yard  within  city  limits 
a  nuisance,  see  Constitutional  Law, 
425;  Courts,  159;  Municipal  Corpo- 
rations, 149. 


BRIDGE  COMPANY;   BRIDGES,  I. 


319 


BRIDGE    COMPANY. 

Diversion  of  funds  of,  by  majority  stock- 
holders, see  Corporations,  309,  310; 
Limitation  of  Actions,   150. 

Agreement  among  railroads  controlling 
bridge  company  to  maintain  excessive 
rates  for  use  of  bridge,  see  Judgment, 
196. 

1.  The  accumulation  and  division  of  a 
fund  by  a  bridge  company  among  a  portion 
oi  the  railroads  using  it,  by  means  of  the 
exaction  of  excessive  tolls,  cannot  be  justi- 
lied  as  a  valid  act  to  postpone  competition 
by  the  erection  of  rival  bridges,  where  tlie 
only  road  on  one  side  of  the  bridge  is  left 
out  of  the  division  which  is  secretly  made 
among  the  oaher  roads.  Dodd  v.  Pittsburg, 
C.  C.  &  St.  L.  11.  Co.  i6:  898,  106  S.  W.  78/, 
127  Ky.  762. 


BRIDGES. 


/.  In  general,   1—7, 
II.  Defects;  injuries  on,  8—23. 
III.  Toll  bridges. 

Acceptance  of  warrant  in  payment  for  con- 
struction of,  as  accord  and  satisfaction, 
see  Accord  and  Satisfaction,   19,  20. 

Admiralty  jurisdiction  as  to,  see  Admiral- 
ty, 2,  3, 

Injury  by  collision  of  vessel  with,  see  Ad- 
miralty, 2,  3;  Appeal  and  Error,  61; 
Collision,  6;  Receivers,  2. 

Change  of  channel  of  boundary  stream  by 
construction  of,  see  Boundaries,  4. 

What  excuses  from  bond  to  replace  bridge, 
see  Contracts,  635. 

Right  of  railroad  to  construct,  at  certain 
point,  see  Corporations,  33. 

Indictment  of  railway  company  for  allow- 
ing bridge  to  become  unsafe,  see  Cor- 
porations, 125. 

Time  when  county  becomes  indebted  for, 
see  Counties,  26. 

Negligence  of  county  as  to,  see  Counties, 
10,  11. 

As  nuisance,  see  Counties,  12;  Nuisances, 
101,  103-105,   111,  173. 

Damages  for  injury  to,  see  Damages,  459, 
672. 

Damages  caused  by  construction  of  ap- 
proach to,  see  Damages,  563. 

Abandonment  of  easement  in,  see  Ease- 
ments, 84,  85. 

Construction  of  approach  to,  in  street,  see 
Eminent  Domain,  200,  201;  High- 
ways, 126;  Joint  Creditors  and 
Debtors,  15,  16. 

Flooding  of  land  by,  see  Eminent  Domain, 
204;   Limitation  of  Actions,  201. 

Interference  with  wharves  by  construction 
of,  see  Eminent  Domain,  243. 

Building  interfering  with  operation  of 
drawbridge,  see  Estoppel,  12;  Par- 
ties, 103;  Waters,  106,  109. 

Estoppel  to  deny  liability  for  building  of, 
see  Estoppel,  14. 

Digest  1-52  i:i.R.A.(N.S.) 


Right  of  property  owner  to  erect  platform 
on  his  lot  to  enable  him  to  pass  there- 
from to  bridge,  see  Highways,  28. 

Right  to  construct  overhead  bridge  in 
street,  see  Highways,  38. 

Right  of  municipality  to  erect  bridge  so  as 
to  raise  surface  of  street  to  certain 
grade,  see  Highways,  134. 

To  carry  street  across  railroad  track,  see 
Highways,  407;    Railroads,  36,  42. 

Injunction  to  protect,  see  Injunction,  7, 
104,  372,  373. 

Injunction  against  location  of,  at  certain 
point,  see  Injunction,  236. 

Agreement  among  railroads  using,  to  main- 
tain excessive  rates  for  use  of,  see 
Judgment,  197. 

Running  of  limitations  against  right  to  re- 
cover for  injury  to,  see  Limitation 
OF  Actions,  98. 

Validity  of  adoption  of  charter  amendment 
authorizing  building  of,  see  Municipal 
Corporations,  17. 

Right  of  private  action  for  negligent  de- 
struction of,  see  Nuisances,  98. 

Special  injury  resulting  from  construction 
or  proposed  construction  of,  giving 
right  to  private  action,  see  Nuisances, 
lOl,   103-105,   111. 

Injunction  against  construction  of,  see 
Nuisances,  103-105;  Parties,  125. 

Contributory  negligence  of  one  approaching 
bridge  crossing  railroad  track,  see 
Railroads,  245. 

Diversion  or  obstruction  of  waters  by,  see 
Railroads,  303;  Trial,  1015;  Waters, 
204. 

Obstruction  of  navigation  by,  see  Counties, 
12;  Municipal  Corporations,  355; 
Waters,  105,  111. 

See  also  Bridge  Company. 

7.  In  general, 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  A  bridge  is  a  highway,  under  Idaho 
Rev.  Stat.  1887,  §  850,  and  it  is  subject  to 
the  laws  applicable  to  highways.  Sandpoint 
V.  Doyle,  17:  497,  95  Pac.  945,  14  Idaho,  749. 

2.  In  constructing  and  maintaining  a 
bridge  for  public  use,  a  county  is  not  lim- 
ited in  its  duty  by  the  ordinary  business 
use  of  the  structure,  but  is  required  to  pro- 
vide for  what  may  be  fairly  anticipated  for 
the  proper  accommodation  of  the  public  at 
large  in  the  various  occupations  which,  from 
time  to  time,  may  be  pursued  in  the  lo- 
cality where  it  is  situated.  Kovarik  v. 
Saline  County,  27:  832,  125  N.  W.  1082,  86 
Neb.  440. 

3.  A  county  which  refuses  to  pay  for 
material  used  by  a  citizen  in  repairing  a 
bridge  without  authority  from  the  proper 
officer  cannot  prevent  his  removing  it  and 
applying  it  to  other  uses,  if  it  can  be  re- 
moved without  leaving  the  bridge  in  worse 
condition  than  before  the  repairs  were  made. 
Floyd  County  v.  Allen,  27:  1125,  126  S.  W. 
124,   137  Ky.  575. 

4.  Authority    from   the   state   to   place 


320 


BRIDGES,  II. 


bridge  piers  upon  the  bed  of  a  river  which 
belongs  to  it  does  not  absolve  tlie  owner 
from  liability  for  injury  to  abutting  prop- 
erty by  a  current  deriected  by  the  piers. 
White  V.  Pennsylvania  li.  Co.  38:  1040,  78 
Atl.   1035,  229  Pa.  480. 

Cost  of  constructing  and  maintaining. 
As  a  local  improvement  for  which  abutting 
property   may    be   assessed,   see    Cases 
Cebtified,    1;    Public   Improvkmknts, 
32. 
Bridge  to  carry  railroad  tracks  over  water- 
way or  street,  see  Damages,  51(5;  Emi- 
nent Domain,  208;  Railroads,  30,  31, 
36,  42. 
Right  to  collect  tolls  on,  see  Estoppel,  13; 

Tolls  and  Toll  Roads,  1. 
Agreement  by  city  to  bear  part  of  expense 
of   strengthening   city   bridge   for   rail- 
road  purposes,  see  Municipal   Corpo- 
rations, 237,  245. 

5.  A  drainage  district  organized  under 
§  23,  art.  4,  chap.  89,  Neb.  Comp.  Stat.  1-911, 
with  the  power  to  construct  its  ditches 
across  highways,  but  charged  with  the  duty 
of  restoring  a  highway  so  crossed  or  inter- 
sected "to  its  former  state  as  near  as  may 
be,  or  in  a  sufficient  manner  not  to  have  im- 
paired unnecessarily  its  usefulness,"  is 
bound  to  maintain  and  keep  in  repair 
bridges  which  it  has  constructed  across 
such  a  ditch.  Richardson  County  ex  rel. 
Sheehan  v.  Drainage  Dist.  No.  1,  43:  695, 
139  N.  W.  648,  92  Neb.  776.        (Annotated) 

6.  Semble,  that  where  a  new  channel 
has  been  made  by  a  drainage  district  for  a 
stream  wliich  has  been  bridged  by  the  pub- 
lic authorities,  if  the  new  channel  and 
bridge  relieve  the  county  of  the  burden  of 
maintaining  the  old  bridge,  the  new  bridge 
should  be  maintained  by  the  public,  and  not 
by  the  drainage  district.  Richardson  Coun- 
ty ex  rel.  Sheehan  v.  Drainage  Dist.  No.  1, 
43:  695,  139  N.  W.  648,  92  Neb.  776. 

7.  The  owner  of  a  private  mill  and 
race  way  constructed  entirely  on  his  own 
land  cannot  be  compelled  to  maintain 
a  bridge  constructed  by  the  county  ovpr 
the  race  way  at  its  intersection  with  a 
highway  laid  out  subsequent  to  the  con- 
struction of  the  mill  race,  under  a  stat- 
ute subsequently  enacted  providing  that 
any  mill  owner  who  now  owns  or  may 
hereafter  own  o-r  operate  any  canal 
or  ditch  that  crosses  a  highway  shall 
maJce  and  keep  in  good  repair  sufficient 
crossings,  including  all  bridges,  that  may 
be  necessary  within  their  right  of  way. 
Franklin  County  v.  Wilt,  31 :  243,  126  N. 
W.    1007,    87    Neb.    132.  (Annotated) 

//.  Defects;  injuries  on. 

(See   also    same   heading   in   Digest   L.R.A. 

1-10.) 

Injury  to  passenger  through  fall  of,  see 
Carriers,  277;  Evidence,  349. 

Injury  by  electric  wire  on,  see  Electricity, 
22-25,  28,  52,  72;  Master  and  Sebv- 
•     ANT,   1004. 

Digest  1-52  L,R.A.(N.S.) 


Presumption  of  negligence  from  carrying 
away  of  railroad  bridge  by  high  water, 
see  Evidence,  437. 

Burden  of  proof  where  railroad  bridge  col- 
lapses, see  Evidence,  392. 

Opinion  evidence  as  to  safety  of,  see  Evi- 
dence, 1150-1152. 

Evidence  in  action  for  injuries  caused  by 
fall  of,  see  Evidence,  1873. 

Sufficiency  of  proof  that  injury  was  due  to 
defective  condition  of  bridge,  see  Evi- 
dence, 2073,  2074. 

Injury  on  trolley  bridge  within  limits  of 
highway,  see  Higuw.ws,  329. 

Liability  of  contractor  for  injuries  result- 
ing from  defects  in,  see  Master  and 
Servant,  1058,  1059. 

Proximate  cause  of  injury  on,  see  Proxi- 
mate Cause,  IV.  c. 

Injury  on  defective  railroad  bridge,  see 
Railroads,  11,  12. 

Injury  to  animal  by  falling  through  rail- 
road bridge,  see  Railroads,  184. 

Question  for  jury  as  to  negligence,  see 
Trial,  412,  413. 

8.  The  owner  of  a  bridge  is  not  liable 
for  the  death  of  one  carried  over  its  side 
by  the  horse  he  was  riding,  because  of  fail- 
ure to  maintain  a  proper  guard  rail,  if 
the  horse  was  so  frightened  by  thunder  and 
lightning  that  the  ordinary  rail  which  he 
was  bound  to  maintain  would  not  have 
prevented  the  accident.  Stout  v.  Valle 
Crucis,  S.  &  E.  P.  Turnpike  Co.  31:804, 
69   S.    E.   508,   153   N.    C.   513. 

9.  Failure  to  maintain  hand  rails 
along  the  sides  of  a  bridge  or  causeway  40 
feet  long  and  13i  feet  high  at  the  center 
is  negligence  as  matter  of  law,  although 
logs  are  maintained  along  the  sides  of 
the  roadway  to  prevent  vehicles  running 
over  the  sides.  Stout  v.  Valle  Crucis,  S. 
&  E.  P.  Turnpike  Co.  31:  804,  69  S.  E. 
508,  153  N.  C.  513. 

10.  A  railing  on  a  bridge,  made  of  light, 
unbraced  pine  posts,  bolted  at  the  bottom, 
may  be  found  to  be  insufficient  to  meet  tlie 
requirements  which  the  law  imposes  upon 
the  owner  to  render  the  bridge  safe  for 
teams  which  may  be  upon  it.  Dardanelle 
Pontoon  Bridge  &  Turnp.  Co.  v.  Croom, 
30:  360,   129  S.   W.  280,  95  Ark.   284. 

11.  The  proprietor  of  a  toll  bridge  is 
liable  for  the  loss  of  a  team  wliich  falls 
from  the  bridge  and  is  killed  because  of 
the  failure  of  such  proprietor  to  use  rea- 
sonable and  ordinary  care  to  see  tliat  tbe 
guard  rail  was  sufficient  to  withstand  such 
pressure  as  might  be  imposed  upon  it  by 
teams  likely  to  be  upon  the  bridge.  Dar- 
danelle Pontoon  Bridge  &  Turnp.  Co.  v. 
Croom,  30:  360,  129  S.  W.  280,  95  Ark.  284. 

(Annotated) 
Liability   of  city,   county,   or  toxrn. 
Prejudicial  error  in  instruction,  see  Appeal 

AND  Error,  1343. 
Constitutionality      of      statute      regulating 
driving  of  traction  engine  across  bridge, 
see  Constitutional  Law,  159. 


BRIDGES,    II. 


321 


Municipal  liability  for  injury  by  operation 
of  drawbridge,  see  Evidence,  2491; 
Municipal  Corporations,  435,  436. 

Lack  of  barriers,  see  Highways,  231,  235. 

Liability  for  death  of  traveler  at  ford  con- 
structed in  place  of  bridge,  see  High- 
ways, 240;   Proximate  Cause,  122. 

Liability  for  injury  to  municipal  employee 
on,  see  Master  and  Servant,  22;  Mu- 
nicipal Corporations,  376;  Trial, 
255. 

Duty  to  protect  travelers  from  dangers  not 
within  limits  of  bridge,  see  Municipal 
Corpokations,  320,  321. 

Imputing  negligence  of  driver  to  person  in- 
jured, see  Negligence,  263. 

Pleading  in  action  for  injury,  see  Plead- 
ing, 348. 

Negligence  as  question  for  jury,  see  Trial, 
412. 

Refusal  of  instruction  in  action  for  injury, 
see  Trial,  819. 

See  also  infra,  20,  21. 

12.  The  duty  of  a  county,  under  a  stat- 
ute making  it  liable  for  special  damages 
happening  to  any  person  or  property  by 
reason  of  insufficiency  or  want  of  repairs 
of  a  higliway  bridge  which  the  county  is 
liable  to  keep  in  repairs,  is  to  construct  and 
maintain  bridges  of  sufficient  capacity  to 
meet  the  present  ordinary  demands,  neces- 
sities, and  uses  of  the  public.  Kovarik  v. 
Saline  County,  27:  832,  125  N.  W.  1082,  86 

'  Neb.  440. 

13.  The  mere  fact  that  a  bridge  is  nar- 
rower than  the  highway,  and  that  the  bar- 
riers extend  from  the  side  of  the  bridge  at 
right  angles  instead  of  being  at  an  acute 
angle  with  the  stream,  does  not  constitute 
a  wrongful  construction,  within  the  mean- 
ing of  a  statute  rendering  the  county  board 
of  chosen  freeholders  liable  for  injury  result- 
ing from  the  wrongful  neglect  to  erect, 
rebuild,  or  repair  the  bridges  over  which  they 
have  control.  Halm  v.  Board  of  Chosen  Free- 
holders (N.  J.  Err.  &  App.)  28:  946,  76  Atl 
1014,  78  N.  J.  L.  712. 

14.  Lighting  a  bridge  by  artificial  light 
is  not  a  part  of  its  erection,  rebuilding,  or 
repairing,  within  the  meaning  of  a  statute 
rendering  the  county  board  of  chosen  free- 
holders liable  for  injury  resulting  from  the 
wrongful  neglect  to  erect,  rebuild,  or  repair 
the  bridges  over  whicli  they  have  control. 
Halm  V.  Board  of  Chosen  Freeholders  (N. 
J.  Err.  &  App.)  28:  946,  76  Atl.  1014,  78 
N.  J.  L.  712. 

15.  County  commissioners  are  bound, 
under  a  statutory  duty  to  repair  bridges, 
to  strengthen  them  to  meet  the  increased 
demands  upon  them  by  the  class  of  ve- 
hicles in  general  use  in  the  locality  where 
they  are  situated,  and  do  not  perform  their 
duty   by    merely   maintaining   them    in    the 


their  duty,  to  the  injury  of  a  traveler,  will 
render  the  county  liable  for  the  injury. 
Gehringer  v.  Lehigh  County,  35:  1127,  80 
Atl.   987,   231    Pa.   497. 

17.  When  the  timbers  of  a  bridge  have 
been  in  use  so  long  that  it  may  reason- 
ably be  expected  that  decay  has  set  in,  it 
is  negligence  on  the  part  of  the  authori- 
ties charged  with  the  duty  of  maintaining 
the  bridge  to  omit  proper  precautions  to 
ascertain  its  condition."  Gehringer  v.  Le- 
high County,  35:  1 127,  80  Atl.  987,  231  Pa. 
497. 

18.  One  attempting  to  drive  a  traction 
engine  across  a  bridge  without  using  planks 
under  the  wheels,  as  required  by  statute, 
cannot,  although  the  failure  to  use  them 
does  not  contribute  to  the  injury,  hold  the 
county  liable  for  injuries  caused  by  the  fall 
of  the  bridge,  under  a  statute  making  the 
county  liable  for  injuries  to  persons  law- 
fully using  a  bridge,  because  of  its  defective 
character,  since  he  is  not  using  the  bridge 
lawfully.  Jones  v.  Union  County,  42:  1035, 
127  Pac.  781,  63  Or.  566.  (Annotated) 
Notice  of  defects  or  injuries. 

19.  The  notice  to  a  county  of  an  injury 
because  of  a  defective  bridge  need  not  set 
out  the  fact  that  the  approach  was  less 
than  the  statutory  width,  in  order  to  en- 
title plaintiff  to  rely  on  such  cause  of  ac- 
tion, under  a  statute  requiring  written 
notice  specifying  the  time,  place,  and  cir- 
cumstances of  the  injury;  and  he  will  not 
be  precluded  from  relying  on  such  cause 
of  action  by  setting  out  other  grounds  of 
negligence.  Magee  v.  Jones  County,  48:  141, 
142  N.  W.  957,  161  Iowa,  296. 
Contributory  negligence. 
Allegation  of  freedom  from,  see  Pleading, 

348. 
See  also  supra,  18. 

20.  One  attempting  to  cross  a  public 
bridge  with  a  traction  engine  and  thresher 
such  as  is  in  comrhon  use  at  the  time,  and 
which  of  necessity  must  be  moved  from 
place  to  place,  has,  in  the  absence  of  notice 
to  the  contrary  or  facts  sufficient  to  put 
him  on  inquiry,  a  right  to  assume  that  the 
bridge  is  reasonably  safe  for  that  purpose, 
notwithstanding  the  threshing  outfits  in  use 
at  the  time  of  the  construction  of  the 
bridge  were  much  lighter,  since  it  is  the 
continuing  duty  of  the  county  to  construct 
and  maintain  bridges  suitable  and  sufficient 
for  the  present  ordinary  demands  and  ne- 
cessities of  the  public.  Kovarik  v.  Saline 
County,  27:  832,  125  N.  W.  1082,  86  Neb.  440. 

21.  One  is  not  negligent  per  se  in  driving 
a  gentle  horse  on  the  highway,  although 
it  is  blind,  so  as  to  preclude  his  holding 
the  county  liable  in  case  he  is  thrown  over 
the  edge  of  an  unguarded  bridge  when  he 
suddenly  loses  consciousness,  if  he  had  not 


condition   in   which   they   were   constructed,    lost  consciousness  before  for  a  long  series 


although  they  were  adequate  to  meet  the 
demands  of  traffic  existing  at  that  time. 
Gehringer  v.  Lehigh  County,  35:  1127,  80 
Atl.   987,  231   Pa.   497. 

16.  Where  the  duty  to  maintain  county 
bridges  is  placed  upon  the  county  commis- 
sioners by  statute,  their  neglect  to  perform 
Digest  1-52  I..R.A.(N.S.)  21 


of  years.  Magee  v.  Jones  County,  48:  141, 
142  N.  W.  957,  161  Iowa,  296.  (Annotated) 
22.  A  traveler  about  to  cross  a  draw- 
bridge must  stop,  look,  and  listen.  Anne 
Arundel  County  v.  State  use  of  Stansbury, 
14:  452,  68  Atl.  602,  107  Md.  210. 

(Annotated) 


322 


BRIDGES,   III.— BROKERS,  I. 


23.  The  negligence  of  one  familiar  with 
the  operation  and  signal  lights  of  a  draw- 
bridge, who  drove  off  it  while  the  draw  was 
open,  at  a  time  when,  by  attention,  he 
would  have  seen  from  the  light  signals 
that  the  draw  was  open,  and  heard  that  a 
boat  was  passing  through  ths  draw,  will, 
as  matter  of  law,  prevent  holding  the  one 
maintaining  the  bridge  liable  for  his  death. 
Anne  Arundel  County  v.  State  use  of 
Stansbury,  14:  452,  68  Atl.  602,  107  Md.  210. 

III.  Toll  bridges. 

(See   also   same  heading   in  Digest   L.R.A. 
1-10.) 

Right  to  collect  tolls  on,  see  Estoppel,  13; 

Tolls  and  Toll  Roads,  1. 
See  also  supra,  11. 


BRIDGE  TENDER. 

Municipal   liability,  for    negligence   of,    see 
Masteb  and  Sebvant,  22. 


BRIEFS. 

On  appeal,  see  Appeal  and  Ebbob,  IV.  r. 


BRINGING  STOLEN  PROPERTY 
INTO  STATE. 

Sufficiency  of  information  for,  see  Indict- 
ment, Infobmation  and  Complaint, 
63. 

1.  If  a  person  in  another  state  marks 
or  brands,  or  alters  the  mark  or  brand,  of 
any  animal,  the  subject  of  larceny  and  the 
property  of  another,  with  intent  to  steal 
it  or  convert  it  to  his  own  use,  so  that  if 
the  marking,  branding,  or  alteration  were 
done  in  the  state  of  Kansas  he  would  be 
guilty  of  the  larceny  defined  by  the  Kansas 
crimes  act,  §  83  (Gen.  Stat.  1901,  §  2076), 
and  then  brings  such  animal  into  the  state, 
he  may  be  convicted  of  the  offense  of  bring- 
ing stolen  property  into  the  state  in  viola- 
tion of  §  285  of  the  crimes  act.  State  v. 
White,  14:  556,  92  Pac.  829,  76  Kan.  654. 


BROKEN  GLASS. 


In  bottle  of  beverage;  liability  of  manufac- 
turer, see  Negligence,  59. 


BROKERS. 


I.  Stock  troTcers,   1—3. 
11.  Real-estate  hrolcers,   4—79. 

a.  In  general,-  authority  and  lia- 
hility  of,  4—19. 
Disect  1-52  I<.R.A.(N.S.) 


//. — continued. 

b.  Compensation,  20—70. 

1.  In   general,   20—61. 

2.  Failure  to  complete  trans- 

action, 62—79. 

Deposit  by  broker  to  his  own  account  of 
proceeds  of  sale  of  customer's  stock 
or  property,  see  Assignment  fob 
Creditobs,  15. 

Proving  claim  in  bankruptcy  both  against 
estate  of  brokerage  firm  and  that  of 
individual  partner,  see  Bankbuptcy, 
23. 

Bank  cashier's  authority  to  employ,  see 
Banks,  39. 

Trust  in  deposit  by,  see  Banks,  73-76. 

Right  to  pay  commission  to  brokers  for 
disposing  of  state  bonds,  see  Bonds, 
111. 

Constitutionality  of  restrictions  on  right 
to  engage  in  insurance  brokerage  busi- 
ness, see  Constitutional  Law,  256. 

As  to  insurance  brokers  generally,  see  In- 
SUBANCE,  I,  d. 

Regulation  of  loan  brokers,  see  Constitu- 
tional Law,  111,  257;  License,  51,  65, 
66,  118;  Municipal  Cobpobations, 
176;  Seabch  and  Seizure,  2. 

Validity  of  marriage  brokage  contract,  see 
CONTBACTS,  481,  604. 

Putting  into  broker's  possession  certificate 
of  corporate  indebtedness  indorsed  in 
blank,  see  Estoppel,  86. 

As  to  factors,  generally,  see  Factors. 

Distinction  between  factor  and  broker,  see 
Factors,  1. 

Forgery  by  loan  broker,  see  Fobgeby,  7. 

Liability  of  one  who,  with  knowledge  of 
fraud,  introduces  impostor  to  money 
broker,  see  Fbaud  and  Deceit,  68. 

Employment  of,  by  officer  of  joint  stock 
company,  see  Joint  Stock  Company, 
7. 

Organization  by  jobbers  of  corporation  to 
do  brokerage  business,  see  Monopoly 
AND  Combinations,  20. 

As  to  pawnbrokers,  see  Pawnbbokers. 

Authority  to  receive  payment  of  loan  ef- 
fected through  him,  see  Payment,  19. 

Agency  of,  in  making  loan,  see  Principal 
AND  Agent,  1. 

Pledge  by  broker  of  customer's  securities  to 
secure  loan  to  himself,  see  Subboga- 
tion,  6. 

Ticket  brokers,  see  Ticket  Bbokebs. 

Usury  in  loans  by,  see  Usuby,  I.  b. 

J.  StocTe  brokers, 

(See  also  same  heading  in  Digest  LM.A. 
1-70.) 

Liability  of  broker  receiving  in  good  faith 
money  of  bank  from  bank  teller  for 
purposes  of  speculation,  see  Assump- 
sit, 19. 

Brokerage  contracts  for  buying  and  selling 
futures,  as  interstate  commerce,  see 
Commerce,  100,  101. 


BROKERS,    II.    a. 


323 


Purchase  of  stock  on  margin,  see  Conflict 
OF  Laws,  132;  Contuacts,  531-534, 
590-594;   Evidence,  522. 

Demurrer  to  petition  in  action  by,  to  re- 
cover amount  of  margins  advanced,  see 
Pleading,  578. 

Negligence  in  recommending  broker,  see 
Contracts,  18,  19,  57;  Damages,  100; 
Pboximate  Cause,  154. 

Implied  agreement  of,  to  carry  stock  until 
certain  price  is  reached,  see  Con- 
tracts, 10. 

Requiring  stock  broker  to  permit  examina- 
tion of  private  books  and  papers,  by 
tax  officer,  see  Criminal  Law,  113; 
Search  and  Seizure,  3;  Statutes,  60. 

Conversion  by  stock  broker,  see  Damages, 
457;  Trover,  17,  40. 

Binding  effect  on  one  ordering  grain 
through,  of  rules  of  exchange  from 
which  orders  are  to  be  executed,  see 
Exchanges,  3. 

Notice  to  surety  of  broker  that  customer's 
notes  taken  as  collateral  security  were 
executed  in  gaming  transactions,  see 
Notice,  6. 

Right  to  maintain  action  against  bank  pay- 
ing check  to  borrower's  order  on  forged 
indorsement,  see  Parties,  61. 

Priorities  in  funds  in  hands  of  receiver  of, 
see  Receivers,  36. 

Constructive  trust  in  proceeds  of  stack  sold 
by  broker  for  customer  when  broker  is 
insolvent,  see  Trusts,  49. 

1.  That  one  who  orders  grain  for  future 
delivery  intends  the  transactions  to  be  mere 
wagers  will  not  deprive  the  broker  of  his 
commissions  where  the  latter  buys  in  good 
faith,  contemplating  actual  delivery.  Hal- 
let  v.  Aggergaard,  14:  1251,  114  N.  W.  696, 
21  S.  D.  554. 

2.  One  who  has  employed  a  broker  to 
sell  stock  for  him  does  not  waive  the  re- 
quirement of  an  actual  sale  to  entitle  the 
broker  to  a  commission,  by  accepting  an 
optional  contract  of  purchase  which  makes 
the  ultimate  sale  depend  on  the  election  of 
the  purchaser  to  meet  his  deferred  pay- 
ments. Warnekros  v.  Bowman,  43:  91,  128 
Pac.  49,  14  Ariz.  348. 

3.  A  broker  employed  to  sell  stock  for 
a  reasonable  commission  is  not  entitled  to 
a  commission  on  money  paid  by  an  option 
purchaser  whose  contract  requires  him  to 
pay  instalment^  at  specified  dates  at  his 
option,  and  who  defaults  after  making  cer- 
tain payments,  so  that  no  stock  is  in  fact 
transferred  to  him.  Warnekros  v.  Bowman, 
43:  91,  128  Pac.  49,  14  Ariz.  348. 

( Annotated ) 

II.  Real-estate  broleera. 

a.  In  general;   authority  and  liability 
of. 

(See   also   same   heading   in   Digest  L.R.A. 

1-10.) 

Requiring  contracts  for  procuring  purchas- 
er for  real  estate  to  be  in  writing,  see 
Digest  1-52  L.R.A.(N.S.) 


Constitutional  Law,  236,  237,  690; 
Contracts,  257-260 ;  Eminent  Domain, 
221. 

Entirety  of  contract  with  broker  for  sale 
of  land,  see  Contracts,  354. 

Liability  for  assisting  promoters  of  corpo- 
ration to  make  secret  profit,  see  Cor- 
porations, 192. 

Validity  of  custom  of,  see  Custom,  8. 

Parol  evidence  to  show  agency,  see  Evi- 
dence, 1049. 

Evidence  in  suit  against  broker  to  recover 
proceeds  of  land  sold,  see  Evidence, 
2036. 

Fraud  by  broker,  see  Fraud  and  Deceit, 
15,  29,  49. 

Disafiirmance  by  infant  of  brokerage  agency, 
see  Infants,  73,  74. 

License  of,  see  License,  65. 

Accounting  between  partners,  see  Part- 
nership, 61,  62. 

Notice  that  broker  acts  as  agent  in  making 
sale  of  property,  see  Principal  and 
Agent,  2. 

Right  of  broker  to  secure  loan  to  pay  mort- 
gage to  become  purchaser  at  foreclos- 
ure, see  Principal  and  Agent,  99,  100. 

Effect  of  exceeding  authority  in  contract- 
ing to  furnish  warranty  deed  and  ab- 
stract of  title,  see  Specific  Perform- 
ance, 106. 

Appointment  ©f  broker  on  Sunday,  see  Sun- 
day, 26. 

Compelling  one  joint  owner  to  account  to 
co-owners  for  bonus  paid  him  by  brok- 
ers effecting  sale,  see  Trust,  119. 

4.  The  legislature  cannot  lawfully  make 
it  a  misdemeanor  to  offer  for  sale  the  real 
estate  of  another  without  written  authority. 
Frank  L.  Fisher  Co.  v.  Woods,  12:  707,  79  N. 
E.  836,  187  N.  Y.  90.  (Annotated) 

5.  The  sale  of  land  by  a  real-estate 
agency  with  whom  it  has  been  listed,  on  any 
other  terms  and  conditions  than  those  au- 
thorized by  the  owner  thereof,  is  not  bind- 
ing on  the  latter.  Larson  v.  Newman,  23: 
849,  121  N.  W.  202,  19  N.  D.  153. 

6.  A  real-estate'  broker  is  without  au- 
thority to  execute  a  contract  of  sale  which 
shall  be  binding  upon  one  who  places  real 
estate  in  his  hands  for  sale,  unless  such  au- 
thority is  specially  conferred.  Weatherhead 
V.  Ettinger,  17:  210,  84  N.  E.  598,  78  Ohio 
St.  104.  (Annotated) 

7.  Authority  conferred  on  a  real  estate 
broker  to  make  a  binding  contract  for  the 
sale  of  land  includes  power  to  bind  the 
grantor  to  execute  covenants  of  general 
warranty  and  furnish  an  "abstract  of  title. 
Jasper  v.  Wilson,  23:  982,  94  Pac.  951,  14 
N.  M.  482. 

8.  Power  to  make  a  binding  contract  for 
sale  of  real  estate  is  conferred  on  a  broker 
by  an  owner  residing  in  a  foreign  country, 
who  intrusts  to  his  discretion  the  subject- 
matter  of  the  amount  to  be  paid  for  the 
property,  requesting  him  to  do  the  best  he 
can,  and  receive  the  purchase  money  and  ap- 
ply it  in  satisfaction  of  the  grantor's  debts. 
Jasper  v.  Wilson,  23:  982,  94  Pac.  951,  14 
N.  M.  482.  (Annotated) 


324 


BROKERS,    II.    b,    1. 


9.  That  an  agent  commissioned  to  pur- 
chase property  for  his  principal  at  the  best 
price  obtainable  had,  at  the  time,  an  option 
on  it,  does  not  prevent  the  principal  from 
retaining  the  property,  and  compelling  the 
agent  to  account  for  the  difference  between 
what  he  actually  paid  for  the  property 'and 
what  he  charged  the  principal  for  it. 
Watson  V.  Bayliss,  34:  1210,  113  Pac.  770, 
62  Wash.  329.  (Annotated) 

10.  A  real-estate  broker  cannot,  after 
accepting,  in  response  to  his  request  for 
price,  the  owner's  offer  to  sell  at  a  certain 
price  less  a  commission  to  himself,  enforce 
a  conveyance  to  himself,  if,  to  his  knowl- 
edge, the  property  was  worth  more  than  the 
price  named,  of  which  fact  he  failed  to  in- 
form the  owner.  Rodman  v.  Manning,  20: 
1158,  99  Pac.  657,  53  Or.  336.     (Annotated) 

11.  A  purchaser  of  real  estate  cannot  re- 
cover damages  from  the  broker  for  fraudu- 
lent representations  as  to  its  value,  if  he 
makes  a  personal  investigation  and  relies 
upon  his  own  judgment  with  respect  to  that 
matter.  Bradley  v.  Oviatt,  42:  828,  84  Atl. 
321,  86  Conn.  63. 

Anthority   to   employ   snbagent. 

Right  of  appellate  court  to  hold  that  con- 
tract by  broker  to  employ  subagent 
was  within  statute  of  frauds,  see  Ap- 
peal AND  Erkok,  349. 

Eatification  of  employment  of  subagent  by 
broker  where  contract  of  employment 
is  within  statute  of  frauds,  see  Con- 
tracts, 257. 

12.  A  real  estate  broker  employed  to  sell 
land  located  near  the  place  of  his  residence 
has  no  implied  authority  to  employ  a  sub- 
agent,  so  as  to  entitle  the  latter  to  a  com- 
mission from  the  owner  in  case  he  finds  a 
purchaser.  Sims  v.  St.  John,  43:  796,  152 
S.  W.  284,  105  Ark.  680.  (Annotated) 

13.  A  real  estate  agent  employed  by  a 
nonresident  to  sell  land  located  in  the  state 
of  the  agent's  residence,  who  assumes  au- 
thority to  grant  options  on  the  property, 
has  no  power  to  employ  an  assistant  at  the 
expense  of  his  principal.  Sorenson  v. 
Smith,  51:  612,  129  Pac' 757,  131  Pac.  1022, 
65  Or.  78. 

14.  A  real  estate  owner  does  not,  by 
making  a  sale  to  a  customer  introduced  by 
an  ag^nt  of  his  broker,  render  himself  liable 
to  such  agent  for  his  compensation,  if  the 
broker  had  no  authority  to  employ  an  agent, 
and  the  agent  reported  his  doings  to  the 
broker  and  never  dealt  with  the  owner  di- 
rectly, although  the  owner  knew  that  he  had 
been  employed,  gims  v.  St.  John,  43:796, 
152  S.  W.  284,  105  Ark.  680. 

15.  The  claim  of  a  real  estate  agent  to 
be  acting  under  his  general  authority  from 
his  principal  in  employing  an  assistant  does 
not  show  that  he  undertook  to  bind  the 
principal  to  compensate  the  assistant  for 
services.  Sorenson  v.  Smith,  51:  612,  129 
Pac.  757,  131  Pac.  1022,  65  Or.  78. 
Ratification. 

Necessity  of  new  consideration  to  support 
ratification  of  broker's  contract,  see 
Contracts,  87. 

Digest  1-52  I..R.A.(N.S.) 


Ratification  of  employment  of  subagent,  see 
Contracts,  257. 

Parol  evidence  to  show  ratification  of  con- 
tract by  principal,  see  Evidence,  961. 

16.  Ratification  of  a  contract  for  the  sale 
of  certain  lands,  which  had  been  entered 
into  by  a  real  estate  agent  in  excess  of  his 
authority,  who  in  answer  to  an  inquiry  of 
such  owner  as  to  the  prospects  of  a  sale 
and  as  to  how  the  crops  were  looking,  sent 
a  copy  of  the  contract  of  sale  and  also  a 
deed  for  signature,  is  not  shown  by  the 
answer  of  the  owner  to  the  agent,  which 
did  not  state  that  he  would  consummate  the 
sale,  or  that  the  deed  sent  had  been  ex- 
ecuted, or  that  he  was  satisfied  with  the 
contract,  or  that  the  agent  was  authorized 
to  make  it.  Larson  v.  Newman,  23:  849, 
121  N.  W.  202,  19  N.  D.  153. 

17.  A  written  statement  by  a  principal 
when  asked  for  a  deed  of  property  under 
an  unauthorized  contract  of  sale  made  by  a 
broker,  that  the  title  cannot  be  transferred 
until  he  gets  it,  but  that  he  would  secure 
it  as  quickly  as  possible,  ratifies  the  brok- 
er's contract.  McLeod  v.  Morrison  &  Eshel- 
man,  38:783,  120  Pac.  528,  66  Wash.  683. 
Termination    of    authority. 

18.  Mere  lapse  of  time  will  not,  as  matter 
of  law,  terminate  the  authority  of  a 
broker  who  has  been  commissioned  to  find 
a  purchaser  for  real  estate.  Hartford  v. 
McGillicuddy,  16:  431,  68  Atl.  860,  103  Me. 
224.  (Annotated) 

19.  The  authority  conferred  upon  a  real- 
estate  brokerage  copartnership,  in  listing 
property  with  it  for  sale,  is  terminated  upon 
the  dissolution  of  the  copartnership;  and  a 
contract  for  the  sale  of  such  property,  made 
after  such  dis.solution,  by  the  continuing 
partner,  is  not  binding  upon  the  owner 
thereof  unless  ratified  by  him.  Larson  v. 
Newman,  23:  849,  121  N.  W.  202,  19  N.  D. 
153.  (Annotated) 

h.    Compensation. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Review  on  appeal  of  findings  as  to  broker's 
right  to  commission,  see  Appeal  and 
Error,  969. 

Consideration  of  note  given'  in  payment  of 
commission,  see  Bills  and  Notes,  29. 

Consideration  for  promise  to  pay,  see  Con- 
tracts, 106,  116,  117. 

Construction  of  contract  for  commission, 
see  Contracts,  388,  389. 

Recovery  on  quantum  meruit,  see  Con- 
tracts, 25. 

Right  of  unlicensed  broker  to  recover  for 
services,  see  Contracts,  422,  42.1. 

Secret  commission  to,  added  to  price  of 
property  sold  to  corporation,  see  COB- 
PORATIONS,    194. 

Parol  evidence  in  action  to  recover  secret 
profits,  see  Evidence,  1049 


BROKERS,  II.  b,  1. 


325 


Liability  of  community  property  for  secret 
profits  made  by  husband  as  broker,  see 
Husband  and  Wife,  84. 

Injunction  by  Federal  court  against  suit  in 
state  court  to  recover  compensation, 
see  Courts,  279. 

Loss  of  profits  as  element  of  damages  for 
wrongful  revocation  of  autlioritv,  see 
Damages,  682,  683. 

Estoppel  to  sue  brokers  for  commission  re- 
tained, see  Election  of  Remedies,  30. 

Parol  evidence  as  to  commission,  see  Evi- 
dence, 964. 

Nature  of  contract  by  which  owner  agrees 
to  pay  agent  all  over  specified  sum  for 
procuring  sale,  see  Homestead,  49. 

Interpleader  to  determine  which  of  two 
brokers  is  entitled  to  commission  for 
sale  of  property,  see  Interpleader,  8. 

Bringing  brokers  into  suit  by  cross  bill  for 
purpose  of  settling  compensation,  see 
Pleading,  538. 

Right  to  compensation  from  agent  of  un- 
disclosed principal,!  see  Principal  and 
Agent,  109,  110. 

Liability  of  referee  to  sell  real  estate  for 
partition  for  broker's  commission,  see 
Reference,  5. 

See  also  supra,  14,  15. 

20.  A  property  owner  who,  with  knowl- 
edge of  the  facts,  deals  with  a  customer  of 
one  broker  through  the  agency  of  another, 
will  be  liable  to  the  first  for  his  commis- 
sion. Jennings  v.  Trumraer,  23:  164,  96  Pac. 
874,  52  Or.  149. 

21.  The  mere  filing  of  an  inventory  of 
property  to  be  sold,  with  a  real-estate 
broker,  is  not  a  listing  within  the  meaning 
of  a  clause  in  the  contract  that,  if  the 
property  is  withdrawn  without  sale,  a 
commission  will  be  paid  in  consideration 
of  his  having  listed  it,  if  he  is  accustomed 
to  get  out  advertising  matter  containing 
lists  of  the  property  he  had  for  sale.  E.  A. 
Strout  Co.  V.  Gay,  24:  562,  72  Atl.  881,  105 
Me.  108.  (Annotated) 

22.  A  broker  is  not  deprived  of  his  right 
to  commissions  for  selling  property  because 
he  is  authorized  by  his  principal  to  secure 
a  sum  for  himself  from  the  purchaser,  which 
he  does  not  do.  Siler  v.  Perkins,  47:  232, 
149   S.   W.   1060,  126  Tenn.  380. 

23.  A  real-estate  agent  employed  to  find 
a  purchaser  for  land  is  not  deprived  of  his 
right  to  compensation  by  the  fact  that  the 
contract  of  sale  entered  into  between  the 
purchaser  and  seller  could  not  be  specifically 
enforced  because  some  of  its  provisions  were 
contrary  to  law.  Manker  v.  Tough,  19:  675, 
98  Pac.  792,  79  Kan.  46. 

24.  Real  estate  brokers  who  have  a  con- 
tract for  the  sale  of  an  entire  tract  of 
land  are  not  entitled  to  recover  upon  a 
pro  rata  basis  upon  introducing  a  prospec- 
tive purchaser  to  the  owner  to  whom  a 
sale  is  made  of  a  part  of  the  tract,  where 
the  owners  do  not  prevent  full  perform- 
ance and  the  contract  is  not  modified.  Bent- 
ley  V.  Edwards,  51:  254,  146  N.  W.  347,  125 
Minn.   179.  (Annotated)  I 

25.  A  broker  employed  to  sell  land  who ' 
Digest  1-52  L.R.A.(N.S.) 


withholds  from  the  principal,  at  the  sug- 
gestion of  a  prospective  purchaser,  informa- 
tion that  such  customer  is  ready  and  will- 
ing to  pay  the  price  asked  and  permits  him 
in  silence  to  endeavor  to  purchase  the 
property  directly  from  the  principal  at  a 
lower  figure,  thereby  forfeits  any  claim  for 
commissions,  even  though  the  principal  ob- 
tain the  full  price  originally  asked.  Carter 
V.  Owens,  25:  736,  50  So.  641,  58  Fla.  204. 

(Annotated) 

26.  A  broker  to  sell  real  estate  who, 
after  securing  from  the  principal  a  blank 
executory  contract  upon  informing  him 
that  he  has  secured  a  purchaser,  inserts 
his  own  name  therein,  which  is  ratified  by 
the  principal,  forfeits  his  right  to  commis- 
sion or  compensation;  his  relation  to  the 
principal  having  been  changed  from  that 
of  broker  to  purchaser.  Christianson  v. 
Mille  Lacs  Land  &  Loan  Co.  31:  536,  129 
N.  W.  150,  113  Minn.  120.  (Annotated) 
Time  ivitliin   \irhich  broker  must  act. 

27.  It  cannot  be  said  that  real  estate 
brokers  who  have  an  agency  for  a  large 
tract  of  land,  specifying  no  time  for  its 
duration,  have  acted  within  a  reasonable 
time  so  as  to  entitle  them  to  commissions, 
in  securing  a  purchaser  in  about  eighteen 
months,  to  whom  the  owner  refused  to  con- 
vey, claiming  that  he  had  withdrawn  the 
lands  from  the  market,  but  to  whom  he  did 
convey  about  eighteen  months  thereafter. 
Alexander  v.  Sherwood  Co.  49:  985,  77  S.  E. 
1027,  72  W.  Va.  195. 

Secret  profits. 

28.  An  agent  who  undertakes  to  manage 
and  dispose  of  real  property  for  one  half 
the  net  profits  forfeits  his  right  to  compen- 
sation by  taking  a  secret  rebate  on  repairs 
and  charging  his  principal  more  than  he 
pays  for  legal  services.  Little  v.  Phipps, 
34:  1046,  94  N.  E.  260,  208  Mass.  331. 

29.  A  real-estate  broker  who,  to  secure 
the  terms  on  which  he  is  authorized  to  sell, 
effects  an  intermediate  sale  to  one  who  for 
a  bonus  is  willing  to  comply  with  the  own- 
er's terms  and  hold  the  property  subject 
to  such  terms  as  the  true  purchaser  can 
meet,  thereby  securing  a  commission  of 
which  his  principal  is  ignorant,  is  bound  to 
account  to  him  for  it.  Easterly  v.  Mills, 
28:  952,  103  Pac.  475,  54  Wash.  356. 

30.  When  a  real  estate  agent  has  prop- 
erty listed  with  him  for  sale,  and  finds  a 
purchaser  ready,  willing,  and  able  to  buy 
on  the  terms  on  which  the  property  is  listed, 
the  fact  that  he  has  an  t.^ /cement  with  the 
purchaser  that,  after  the  purchase  is  com- 
pleted, he  may  subdivide  the  property,  and 
sell  it  as  town  lots  for  a  contingent  commis- 
sion, will  not  defeat  his  right  to  recover  a 
commission  against  his  original  client, 
which  has  been  earned.  Gilliland  v.  Jaynes, 
46:  129,  129  Pac.  8,  36  Okla.  563. 
Acting    for    both    parties;    compensa* 

tion  from  both. 
Burden  of  proof  as  to,  see  Evidence,  175. 

31.  The  mere  listing  of  property  with  a 
broker  for  sale  does  not  necessarily  con- 
stitute him  the  owner's  agent,  so  as  to  ren- 
der it  improper  for  him  to  act  as  the  agent 


326 


BROKERS,  II.  b,  1. 


of   a   purchaser.     Johnson   v.   Hay  ward,   5: 
112,  103  N.  W.  1058,  74  Neb.  157. 

32.  That  a  real-estate  broker  was  em- 
ployed by  each  party  to  a  contract  for  the 
purchase  and  sale  of  real  estate,  without 
the  knowledge  of  the  other,  to  keep  liim  in- 
formed as  to  the  condition  of  the  property, 
does  not  render  his  employment  contrary 
to  public  policy  so  as  to  deprive  him  of  his 
right  to  the  compensation  which  each  had 
promised  him.  McLure  v.  Luke,  24:  659, 
154  Fed.  647,  84  C,  C.  A.  1.        (Annotated) 

33.  One  undertaking  to  procure  a  pur- 
chaser for  a  tract  of  land  at  a  certain 
price  per  acre  does  not  lose  his  right  to 
the  agreed  commission  by  taking  a  com- 
mission from  the  purchaser  also.  Tasse 
V.  Kindt,  31:  1222,  128  N.  W.  972,  145  Wis. 
115. 

Sufficiency  of  broker's  services. 

Estoppel  of  owner  to  set  up  defense  in  suit 
for  commission,  see  Estoppel,  98. 

SuflBciency  of  proof  as  to,  see  Evidence, 
2273. 

Judgment  on  pleadings  in  action  for  com- 
missions, see  Pleading,  66. 

Sufficiency  of  allegations  in  actions  for  com- 
missions, see  Pleading,  238. 

See  also  infra,  77. 

34.  A  broker  employed  to  sell  land  can- 
not recover  commissions  unless  he  has  pro- 
duced to  his  principal  a  purchaser  ready, 
able,  and  willing  to  buy  on  the  terms  speci- 
fied in  his  contract  of  employment.  Carter 
V.  Owens,  25:  736,  50  So.  641,  58  Fla.  204. 

>  35.  A  real  estate  agent,  in  order  to  re- 
cover commission  for  the  sale  of  real  es- 
tate, must  not  only  produce  a  purchaser 
who  is  ready,  willing,  and  able  to  buy  upon 
the  terms  and  conditions  agreed  upon,  but 
must  procure  from  such  purchaser  an  en- 
forceable contract  in  writing  binding  him  to 
take  the  land  according  to  the  terms  and 
conditions  agreed  upon.  Reynolds  v.  Ander- 
son, 46:  144,  132  Pac.  322,  37  Okla.  368. 

36.  In  order  for  a  real  estate  agent  to 
recover  his  commission  for  making  a  sale 
which  has  not  been  completed,  it  is  neces- 
sary for  him  to  have  a  purchaser  who  is 
ready,  willing,  and  able  to  buy;  and,  pro- 
vided the  s^ler  and  purchaser  have  not 
come  together,  to  have  procured  from  such 
purchaser  a  written  agreement  to  buy 
which  will  be  enforceable  against  him  if 
accepted  and  signed  by  the  seller.  Gilliland 
V.  Jaynes,  46:  129,  129  Pac.  8,  36  Okla.  563. 

( Annotated ) 

37.  A  broker  who  has  brought  to  his 
principal  one  ready,  able,  and  willing  to 
take  the  property  on  the  terms  offered  is 
not  deprived  of  his  right  to  commissions 
because,  after  being  informed  that  there 
was  nothing  more  he  could  do,  he  was  not 
present  when  the  deal  was  consummated, 
and  some  changes  were  made  in  the  details 
of  the  trade  during  the  final  negotiations. 
Siler  V.  Perkins,  47:  232,  149  S.  W.  1060, 
126  Tenn.   380. 

38.  As  a  general  rule,  the  entire  duty 
of  a  broker  employed  to  assist  in  the  sale 
of  property  is  to  find  and  introduce  or  re- 
port to  his  employer  a  person  who  is  willing 
Digest  1-52  Ii.R.A.(N.S.) 


and  able  to  purchase  at  the  price  and  upon 
the  terms  which  the  employer  has  desig- 
nated, although  this  rule  is  to  be  applied 
as  abridged  or  extended  in  any  specific  case 
by  the  terms  of  the  contract  of  employment. 
Yoder  v.  Randol,  3:  576,  83  Pac.  537,  16 
Okla.  308. 

39.  A  purchaser  of  land  was  not  procured 
by  real-estate  brokers  so  as  to  entitle  them 
to  a  commission,  when  his  attention  was 
first  called  to  the  property  by  one  of  the 
owners,  and  he  had  decided  to  inspect  it 
more  than  a  month  before  meeting  the 
brokers,  who  later  unnecessarily  gave  him 
a  letter  of  introduction  to  such  owner,  and 
lie  concluded  his  purchase  with  one  of  the 
owners  for  a  less  price  than  that  for  which 
the  brokers  were  authorized  to  offer  the 
land.  Spotswood  v.  Morris,  6:  665,  85  Pac. 
1094,  12  Idaho,  360. 

40.  An  agent  employed  to  sell  land  under 
a  contract  providing  for  a  schedule  of 
commissions  on  sales  made  by  him,  or  with 
his  assistance,  or  ilnder  his  advice,  is  enti- 
tled to  the  reasonable  value  of  services  ren- 
dered by  him  to  his  principal  in  bringing 
about  a  consolidation  of  the  interests  of  his 
employers  and  an  irrigation  company,  by 
which  the  employers  secured  irrigation  for 
the  land,  and  thus  promoted  its  sale,  al- 
though the  arrangement  between  his  em- 
ployers and  the  irrigation  company  did  not 
amount  to  a  sale  entitling  him  to  the  com- 
missions provided  for  by  his  contract.  Close 
v.  Browne,  13:  634,  82  N.  E.  629,  230  111.  228. 

41.  A  real-estate  agent  authorized  by 
express  contract  to  sell  property  at  a  cer- 
tain price  cannot  recover  on  a  quantum 
meruit  for  the  value  of  his  services  ip  find- 
ing a  purchaser  who  pays  less  than  that 
sum,  where  the  owner  receives  no  benefit 
from  the  agent's  services,  although  the 
agent  is  present  and  assists  in  the  sale, 
and  the  owner  changes  the  price.  Ball  v. 
Dolan,  15:  272,  114  N.  W.  998,  21  S.  D.  619. 

(Annotated) 

42.  One  does  not  waive  the  provision  in 
a  contract  requiring  his  broker  to  secure  a 
certain  price  for  his  property  to  be  entitled 
to  a  commission,  by  selling  it  for  less  than 
that  amount  to  one  introduced  by  the 
agent,  who  will  not  pay  more,  when  he 
sells  openly,  and  without  objection  by  the 
broker,  at  a  time  when  another  purchaser 
could  not  be  found  within  the  time  limit. 
Ball  v.  Dolan,  15:272,  114  N.  W.  998,  21 
S.  D.  619. 

43.  An  owner  of  real  estate  who  sells 
his  property  to  one  induced  to  purchase  it 
by  the  efforts  of  an  agent  with  whom  it 
had  been  listed  for  sale  for  a  definite  price, 
but  who  was  not  given  an  exclusive  agency, 
is  not  liable  for  the  commission  agreed  to 
be  paid  for  the  production  of  a  purchaser 
ready,  able,  and  willing  to  buy,  where  the 
owner  acted  in  good  faith  and  in  ignorance 
of  the  efforts  of  the  agent,  and  sold  the 
property  for  a  price  less  than  that  named 
to  the  agent.  Quist  v.  Goodfellow,  8:  153, 
110  N.  W.  65,  99  Minn.  509.         (Annotated) 

44.  A  real-estate  broker  who  has  pro- 
cured a  purchaser  ready  and  willing  to  pur- 


BROKERS,  II.  b,  1. 


327 


chase  on  the  terms  proposed,  or  who  has 
otherwise  done  all  required  of  him  by  his 
contract  of  employment,  is  entitled  to  re- 
cover the  stipulated  commission,  unless 
limited  by  express  provisions  in  his  con- 
tract. Hugill  V.  Weekley,  15:  1262,  61  S. 
E.  360,  64  W.  Va.  210, 

45.  A  real  estate  broker  does  not  earn 
his  commission  by  producing  a  customer 
■willing  and  able  t<J  pay  tke  required  price  in 
cash  for  the  property,  where  his  author"' y 
is  to  sell  for  a  certain  price,  payable  a  cer- 
tain amount  down,  and  the  remainder  in 
yearly  instalments,  with  interest.  Jepsen 
V.  Marohn,  21:  935,  119  N.  W.  988,  22  S.  D. 
593.  (Annotated) 

46.  A  broker  for  the  sale  of  property 
who  notifies  the  owner  of  the  fact  that  he 
has  a  customer,  and  gives  his  name,  is  en- 
titled to  the  credit  of  bringing  the  parties 
together,  although  he  does  not  actually  in- 
troduce them  to  each  other,  which  service 
is  performed  by  another  broker,  Jennings 
V.  Trummer,  23:  164,  96  Pac.  874,  52  Or. 
149.  (Annotated) 

47.  An  agent  employed  to  sell  land  for 
another,  upon  whom  no  authority  to  execute 
a  contract  of  sale  or  to  execute  an  instru- 
ment of  conveyance  is  conferred,  is  required 
merely,  in  order  to  entitle  him  to  compen- 
Bation,  to  find  a  purchaser  ready,  willing, 
and  able  to  make  the  purchase  at  the  price 
and  on  the  terms  prescribed  by  the  seller 
to  the  agent.  Manker  v.  Tough,  19:675, 
98  Pac.  792,  79  Kan.  46, 

48.  The  securing  by  a  customer  intro- 
duced by  a  real  estate  broker  of  an  option 
upon  the  property  for  a  specified  time 
makes  time  of  the  essence  of  the  contract, 
so  that  the  agent's  commission  is  not 
earned  if  the  sale  is  not  consummated  with- 
in the  time  specified.  Sorenson  v.  Smith, 
51:  612,  129  Pac,  757,  131  Pac,  1022,  65  Or. 
78. 

49.  A  real-estate  broker  need  not  neces- 
sarily close  a  contract  for  the  sale  of  land 
to  entitle  him  to  a  commission  therefor  un- 
der a  centract  whereby  the  owner  agreed  to 
pay  a  commission  on  sale  at  a  given  price, 
but  is  entitled  to  his  commission  when  he 
has  produced  a  purchaser  able  and  willing 
to  take  the  property  at  the  tei'ms  named. 
Beougjier  v.  Clark,  27:  198,  106  Pac.  39,  81 
Kan.  250. 

50.  A  broker  who  merely  asks  an  owner 
the  price  of  his  house,  and  introduces  to  him 
a  customer  who  subsequently  purchases  it, 
is  not  entitled  to  a  commission  on  the  sale, 
unless  he  was  employed  by  the  owner  to 
make  the  sale,  although  he  may  have  to 
some  extent  influenced  the  sale.  Geier  v. 
Howells,  27:  786,  107  Pac.  255,  47  Colo.  345. 

(Annotated) 

51.  That  a  customer  introduced  by  a 
broker  who  is  authorized  to  sell  property 
for  a  certain  net  price,  after  refusing  to 
pay  such  price,  purchases  from  the  owner 
for  a  less  sum,  does  not  entitle  the  broker 
to  a  commission.  Gilmore  v.  Bolio,  34: 
1050,  131  N.  W.  105,  165  Mich.  633. 

(Annotated) 
Digest  1-52  L.R.A.(N.S.) 


Transactions    effected    \iritliout    brok- 
er's aid. 

52,  One  who  has  given  a  broker  au- 
thority to  sell  his  property  during  a  speci- 
fied time  cannot  himself  make  a  sale  within 
that  time  without  being  liable  to  the  broker 
for  breach  of  contract.  S.  Bluthenthal  & 
Co.  V.  Bridges,  24:  279,  120  S.  W.  974,  91 
Ark,   212,  (Annotated) 

53,  Where  a  prospective  purchaser  has 
been  introduced  to  the  owner  of  land  by  a 
broker  with  whom  it  had  been  listed,  the 
owner  cannot,  while  the  negotiations  with 
the  first  broker  are,  to  his  knowledge,  still 
pending,  avoid  liability  to  him  for  commis- 
sion by  completing  the  purchase  at  the  price 
named  in  the  listing  agreement,  although 
upon  slightly  difl'erent  terms  of  payment, 
through  another  broker,  with  whom  the 
property  had  also  been  listed,  Beougher  v, 
Clark,  27:  198,  106  Pac,  39,  8l  Kan,  250, 

54,  An  offer  of  a  specified  commission 
for  the  sale  of  real  estate  at  a  certain 
price,  within  a  specified  time,  does  not  give 
the  broker  the  exclusive  agency  for  that 
period,  but  the  owner  may  effect  a  sale  him- 
self within  that  time  without  becoming 
liable  for  the  commission,  although  before 
its  expiration  the  broker  produces  a  cus- 
tomer able  and  willing  to  comply  with  the 
terms  of  the  sale,  Hammond  v.  Mau,  40: 
1142,  124  Pac,  377,  69  Wash.  204, 

( Annotated ) 

55,  A  broker  who  introduces  to  the  own- 
er's agent  a  prospective  purchaser  for  prop- 
erty, and  secures  from  the  agent  an  agree- 
ment for  division  of  the  commission  in  case 
of  sale,  has  no  right  of  action  against  him 
in  case  a  sale  is  effected  through  another 
broker  whose  offer  on  behalf  of  the  same 
customer  is  accepted  by  the  owner,  although 
the  offer  is  less  than  the  lowest  price  which 
the  unsuccessful  broker  was  led  to  believe 
would  be  accepted  for  the  property,  Dalke 
V,  Sivyer,  37:  195,  105  Pac,  1031,  56  Wash. 
462,  (Annotated) 

56,  A  broker  receiving  exclusive  author- 
ity to  sell  real  estate  by  a  writing  which 
he  does  not  sign  cannot  recover  commissions 
in  case  the  property  is  sold  by  the  owner 
without  aid  from  him,  if  he  fails  to  show 
that,  prior  to  the  sale,  he  had  used  ordi- 
nary diligence  in  endeavoring  to  make  a 
sale  of  the  property,  resulting  in  the  ex- 
penditure of  time,  money,  or  effort  under 
the  contract.  Schoenmann  v.  Whitt,  19: 
598,  117  N,  W.  851,  136  Wis,  332, 

( Annotated ) 

57,  A  broker  who  fails  to  produce  a  pur- 
chaser able  and  willing  to  take  the  prop- 
erty at  the  specified  price,  within  the  time 
limited  by  the  owner  in  a  written  contract 
between  them,  is  not  entitled  to  his  commis- 
sion in  case  the  owner  subsequently  makes  a 
sale  to  a  customer  introduced  by  the  bicker 
within  the  time  limited,  at  a  price  less  than 
that  at  which  the  broker  was  authorized  to 
sell.  Brown  v.  Mason,  21:  328,  99  Pac.  867, 
155   Cal.    155.  (Annotated) 

58,  The  mere  fact  that,  after  negotia- 
tions with  a  real-estate  broker  were  broken 
off,   the   partner  of  the   negotiating  person 


328 


BROKERS,  II.  b,  2. 


negotiated  unsuccessfully  with  the  owner 
for  the  property,  will  not  deprive  the  broker 
of  his  commissions  if  negotiations  subse- 
quently renewed  with  him  result  success- 
fully. Hartford  v.  McGillicuddy,  i6:  431, 
68  Atl.  860,  103  Me.  224. 
Effect   of   principars   fraud. 

59.  A  property  owner  will  be  liable  for 
the  commission  of  a  broker  to  whom  he 
has  given  the  right  to  sell  the  property, 
after  receiving  notice  that  he  has  a  cus- 
tomer, if  such  owner  afterwards  induces  an- 
other broker  to  effect  the  sale,  by  acquaint- 
ing him  with  the  facts.  Jennings  v.  Trum- 
mer,  23:  164,  96  Pac.  874,  52  Or.  149. 

60.  An  owner  of  property,  who,  after 
agreeing  to  pay  a  broker  a  certain  sum  to 
sell  it  at  a  certain  price  and  receiving 
through  him  an  offer  for  most  of  the  prop- 
erty at  a  slightly  less  price,  fraudulently 
informs  the  broker  that  he  will  keep  the 
property,  and  settles  for  his  services  for  a 
nominal  consideration,  after  which  he  nego- 
tiates a  sale  with  the  customer  for  a  sum 
which,  together  with  that  received  for  the 
balance  of  the  property,  brings  more  than 
the  stipulated  amount,  is  liable  for  the  sum 
promised  the  broker.  Bowe  v.  Gage,  12: 
265,  112  N.  W.  469,  132  Wis.  441. 
Amount  of  compensation. 

61.  A  real-estate  broker  who  procures 
a  purchaser  for  property  pursuant  to  a  con- 
tract which  fails  to  fix  his  rate  of  compen- 
sation is  entitled  to  a  fair  and  reasonable 
compensation  for  the  services  rendered. 
Scully  V.  Williamson,  27:  1089,  108  Pac.  395, 
26  Okla.  19. 

2.  Failure  to  complete  transaction. 

62.  A  contract  between  a  real-estate 
agent  and  a  landowner,  that,  if  the  agent 
should  find  a  purchaser  for  the  land,  he 
should  have,  as  compensation  for  his  serv- 
ices, the  amount  the  land  might  sell  for 
above  a  certain  price,  is  not  a  joint  venture, 
in  which  neither  may  profit  to  the  exclusion 
of  the  other,  but  is  a  contract  of  agency 
merely,  and  the  agent  is  entitled  to  his  com- 
pensation where  he  finds  a  satisfactory  pur- 
chaser for  the  land,  although  the  contract  is 
subsequently  canceled  by  the  mutual  agree- 
ment of  the  seller  and  purchaser,  without 
the  consent  of  the  agent.  Manker  v.  Tough, 
19:  675,  98  Pac.  792,  79  Kan.  46. 
Default    of    principal;    revocation    of 

authority. 

63.  Where  a  contract  of  agency  to  sell 
lands  at  a  price  net  to  the  owner  specifies 
no  time  for  performance,  and  a  reasonable 
time  elapses  without  a  sale,  the  owner  may 
in  good  faith,  without  design  to  avoid  pay- 
ment of  commissions,  revoke  the  agency  and 
afterwards  sell  and  convey  to  a  person  with 
whom  the  agent  had  negotiated,  without  in- 
curring any  liability  for  commissions. 
Alexaiuier  v.  Sherwood  Co.  49:  985,  77  S.  E. 
1027,  72  W.  Va.  195.  (Annotated) 

64.  That  a  vendor  is  mistaken  in  the 
identity  of  land  which  he  places  in  the 
hands  of  a  broker  for  sale,  so  that  he  can- 
not make  title  to  it,  does  not  deprive  the 
Digest  1-52  L.R.A.(N.S.) 


broker  of  his  right  to  comLassions  if  he  finds 
a  purchaser  ready  and  willing  to  take  the 
property  offered.  Arnold  v.  National  Bank, 
3:  580,  105  N.  W.  828,  126  Wis.  3G2. 

6.5.  Rual-estate  brokers  who  agree  "to 
make  all  the  effort  possible  to  make  sale  of 
the  property,  for  which  they  are  to  receive 
5  per  cent  commission  for  their  services  out 
of  the  first  payment,"  are  entitled  to  recov- 
er the  stipulated  commission,  although  the 
purchaser  refuses  to  complete  the  s:ile,  or 
to  pay  any  part  of  the  purchase  money,  be- 
cause of  alleged  misrepresentations  by  the 
vendor.  Hugill  v.  Weekley,  15:  1262,  61  S. 
E.  360,  64  W.  Va.  210.  (Annotated) 

66.  A  broker  who  has  performed  his  con- 
tract of  employment  for  the  sale  of  real 
estate  cannot  be  deprived  of  his  commis- 
sion, although  for  some  reason  not  involv- 
ing culpability  on  his  part,  but  due  to  the 
misrepresentations  of  the  seller,  the  con- 
tract of  sale  has  failed  of  execution.  Hugill 
V.  Weekley,  15:  1262,  61  S.  E.  360,  64  W. 
Va.  210. 

67.  A  real-estate  broker  is  entitled  to 
his  commission  when  he  produces  a  pur- 
chaser ready,  willing,  and  able  to  complete 
the  purchase  on  the  authorized  terms,  al- 
though the  owner  refuses  to  transfer  the 
property.  Hartford  v.  McGillicuddy,  16: 
431,  08  Atl.  860,  103  Me.  224. 

68.  A  real-estate  broker  is  not  deprived 
of  the  right  to  his  commissions  by  the 
fact  that  the  sale  fails  because  the  vendor 
cannot  give  a  marketable  title.  Little  v. 
Fleishman,  24:  1182,  101  Pac.  984,  35  Utah, 
566.  (Annotated) 

69.  Where  an  agent  employed  to  effect  a 
loan  has  diligently  performed  services  un- 
der the  employment,  but  is  prevented  from 
an  attempt  to  complete  the  transaction  by 
the  refusal  of  his  employer  to  accept  the 
loan,  he  is  entitled  to  recover  the  reason- 
able value  of  his  services,  even  if  he  has 
not  carried  the  matter  far  enough  to  have 
fully  earned  his  commissions.  Little  v. 
Liggett,  40:  39,  121  Pac.  1125,  86  Kan.  747. 
Default  of  other  party;  financial  in- 
ability. 

70.  The  right  of  a  real-estate  broker  to 
recover  his  stipulated  commission  is  not  af- 
fected by  the  fact  that  the  customer  pro- 
cured by  him  failed  to  carry  out  a  valid 
contract  of  sale  which  he  entered  into  with 
the  vendor.  Hugill  v.  Weekley,  15:  1262, 
61  S.  E.  360,  64  W.  Va.  210. 

71.  Failure  of  a  contract  for  the  sale 
of  real  estate  because  of  inability  of  the 
purchaser  to  perform  will  deprive  the  brok- 
er who  undertook  to  procure  a  purchaser  of 
his  right  to  a  commission,  although  the 
defaulting  party  had  bound  himself  by  con- 
tract to  complete  the  purchase,  and  had 
paid  a  portion  of  the  contract  price.  Riggs 
V.  Turnbull,  8:  824,  66  Atl.  13,  105  Md.  135. 

72.  A  broker  with  whom  land  is  listed 
for  sale,  who  is  to  be  paid  "when  the  prop- 
erty is  sold,"  is  not  entitled  to  commissions 
although  he  has  procured  one  who  said  he 
was  willing  to  purchase  at  the  price  asked, 
and  who  has  paid  to  the  broker  a  sum  to 
be  applied  on  the  purchase  price,  which  sum 


BROTHER— BUILDING  AND   CONSTRUCTION   CONTRACTS. 


329 


has  been  turned  over  to  the  owners,  where 
no  written  contract  of  purchase  was  made, 
and  possession  was  not  taken  by  the  pur- 
chaser, who  afterwards,  through  no  fault  of 
the  owners,  refused  to  complete  the  pur- 
chase by  making  an  enforceable  contract, 
since  the  condition  as  to  when  commissions 
were  payable  was  not  complied  with.  Pfanz 
V.  Huraburg,  29:  533,  91  N.  E.  803,  81  Ohio 
St.  1.  (Annotated) 

73.  A  broker  who  has  fully  performed 
his  undertaking  by  producing  a  person 
ready,  willing,  and  able  to  purchase  his  em- 
ployer's property  at  the  price  and  upon  the 
terms  stipulated,  which  purchaser  has  been 
accepted  by  the  landowner,  who  has  en- 
tered into  a  binding  and  enforceable  con- 
tract with  him,  is  entitled  to  his  commis- 
sion; and  his  right  thereto  is  not  defeated 
by  the  fact  that  the  purchaser  refuses  to 
consummate  the  transaction  because  of  a 
defect  in  the  title  to  the  landowner's  prop- 
erty, where  knowledge  of  such  defect  was 
not  communicated  by  the  employer  to  the 
broker  at  the  time  of  entering  into  the  con- 
tract of  employment  with  him.  Yoder  v. 
Randol,  3:  576,  83  Pac.  537,  16  Okla.  308. 

(Annotated) 

74.  A  broker  who,  pursuant  to  his  con- 
tract of  employment,  has  in  good  faith  pro- 
duced a  purchaser,  which  purchaser  has 
been  accepted  by  the  property  owner,  who 
has  entered  into  an  enforceable  contract 
with  him,  is  entitled  to  compensation  for 
his  services,  notwithstanding  it  subsequent- 
ly turns  out  that  the  purchaser  is  not  able 
to  comply  with  his  contract  and,  on  that 
account,  the  sale  is  not  consummated  by  a 
transfer  of  the  property.  Scully  v.  Wil- 
liamson, 27:  1089,  108  Pac.  395,  26  Okla.  19. 

75.  Lack  of  pecuniary  responsibility  on 
the  part  of  the  purchaser  procured  by  a 
real-estate  broker,  who  actually  entered  in- 
to a  contract  with  the  vendor,  will  not  de- 
prive the  broker  of  his  right  to  claim  a 
stipulated  commission.  Hugill  v.  Weekley, 
15:  1262,  61  S.  E.  360,  64  W.  Va.  210. 

76.  The  financial  inability  of  the  pur- 
chaser to  perform  his  contract  to  purchase 
real  estate  does  not  deprive  the  broker  of 
his  commission  where  a  binding  contract  for 
sale  is  eflFected  through  his  agency,  in  the 
absence  of  fraud  or  warranty,  on  his  part, 
of  the  customer's  financial  ability.  Moore 
V.  Irvin,  20:  1168,  ll6  S.  W.  662,  89  Ark. 
289.  (Annotated) 

77.  Announcing  the  terms  of  sale  to  a 
broker  who  has  inquired  for  them  does  not> 
require  him  to  consummate  the  sale  to  earn 
his  commission ;  but  it  is  sufficient  if  he 
furnishes  a  customer  ready,  willing,  and 
able  to  purchase  on  the  terms  announced, 
although  the  one  giving  the  terms  proves  to 
be  unable  to  meet  the  requirements  neces- 
sary to  close  the  deal.  Jones  v.  Ford,  38: 
777,  134  N.  W.  569,  154  Iowa,  549. 

78.  A  broker  is  entitled  to  commissions 
for  procuring  a  loan  to  be  secured  by  mort- 
gage of  real  estate,  although  it  is  not  com- 
pleted because  the  lender,  who  is  to  be  fur- 
nished with  marketable  title,  demands  an  in- 
demnity bond  against  mechanics'  liens,  the 
Disest  1-52  L.R,A.(N.S.) 


time  for  filing  which  has  not  elapsed,  and 
refuses  to  take  an  inadequate  cash  deposit 
and  written  evidence  that  no  liens  exist  in 
lieu  of  the  bond.  Silberberg  v.  Chipman, 
15:  187,  93  Pac.  1130,  42  Colo.  20. 

(Annotated) 
79.  An  agent  employed  "to  procure  a 
loan"  has  ordinarily  earned  his  commission 
when  he  has  produced  a  person  willing  and 
able  to  make  the  loan  upon  the  prescribed 
terms;  and  his  claim  to  compensation  will 
not  be  defeated  by  the  refusal  of  such 
person  to  complete  the  transaction,  because 
it  turns  out  that  a  material  representation 
made  by  the  employer  is  contrary  to  the 
fact.  Little  v.  Liggett,  40:  39,  121  Pac. 
1125,  86  Kan.  747. 


BROTHER. 


Implied  contract  to  pay  for  services  to,  see 

Contracts,  33,  34. 
Fiduciary   relation  between,  see  Evidence, 

115,  116. 
Right    to    letters    of    administration,     see 

Executors  and  Administrators,  13. 
Insurable  interest  in  life  of,  see  Insurance, 

77. 


BUCKET  SHOP. 


Validity  of  contract  not  to  supply  quota- 
tions to,  see  Contracts,  454. 

Right  to  recover  money  lost  in,  see  Con- 
tracts, 590-594. 

As  place  for  gaming,  see  Gaming,  17. 

Mandamus  to  compel  delivery  of  market 
quotations  to,  see'  Mandamus,  8. 


BUDGET    COMMISSIONERS. 

Power    to   change   sum   levied   as   tax,   see 
Taxes,  154. 


BUILDIXG    AND    CONSTRUCTION 
CONTRACTS. 

Bonds  of  contractors,  see  Action  ob  Suit, 
9;  Bonds,  8-13,  15,  31;  Constitution- 
al Law,  456;  Evidence,  980;  Parties, 
85-88;  Principal  and  Surety,  9,  10, 
20-23,  39,  40,  73,  74;  Trial,  200. 

When  action  for  instalments  on,  accrues, 
see  Action  or  Suit,  8. 

Conditions  precedent  to  action  on,  see  Ac- 
tion or  Suit,  7 ;  Constitutional  Law, 
455. 

Joinder  of  causes  of  action  on,  see  Action 
or  Suit,   113. 

Admissions  by  contractor,  see  Admissions. 

Provision  in,  for  arbitration,  see  Arbitra- 
tion, 3,  5,  14. 


330 


BUILDING  AND  LOAN  ASSOCIATIONS. 


Liability  of  architect  for  negligence  in  cer- 
tifj'ing    performance    of,    see    Archi- 
tects, 3. 
Assignability    of    balance    due    under    con- 
tract for  public  work,  see  Assignment, 
26. 
Acceptance    of    bid    by    contractors,    ■with 
notice  of  mistake  as  to  subject-matter, 
see  Contracts,  125;  Notice,  13. 
Definiteness  of,  see  C(?ntracts,  157. 
Construction   of   generally,   see   Contkaots, 

IL  d,  4. 
Recovery    on    quantum    meruit,    see    Con- 
tracts, 17. 
Absenae  of  provision  as  to  priced  for  work, 

see  Contracts,  30. 
Recovery  for   extra   work,   see   Conteacts, 

622-625. 
Consideration  for  agreement  to  pay   addi- 
tional   compensation,    see    Contracts, 
110-113. 
Oral  contract  to  become  surety  for  building 

contractor,  see  Contracts,  233. 
Payment    by    property    owner    of    claims 
against  Contractor,  see  Evidence,  644. 
Owner's     promise     to     pay     subcontractor 
where  contractor  fails  to  pay  bim,  see 
CONTBACTS,  225. 
Excuse  for  failure  of  performance,  see  Con- 
tracts, 626,  636,  637. 
Excuse  for  delay  in  performance,  see  Con- 
tracts, 638-641. 
Right  of  recovery  on  part  performance,  see 

Contracts,  646-65o. 
Sufficiency  of  performance,  see  Contracts, 

654-658,  660, 
Effect  of  destruction  of  building  before  com- 
pletion of  contract,  see  Contracts,  652, 
658. 
Certificate    of    performance    of,    see    Con- 
tracts, rv.  d. 
Arbitrary  withholding  of  architect's  certifi- 
cate, see  Trial,  597. 
Effect  of  absence  of  final  estimate  by  engi- 
neer on  completion  of  work,  see  Con- 
tracts, 670. 
Waiver  of  objections  to  perfonnance  of,  see 

Contracts,  665-668. 
Waiver  of  time  clause  in,  see  Contracts, 

704. 
Misrepresentations   as  to  ability  of  archi- 
tect and  probable  cost  of  structure,  see 
Contracts,  664;    Fraud  and  Deceit, 
8,  9. 
Effect  of  breach  of,  see  Contracts,  698-700. 
Trespass  on  the  case  to  recover  damages  for 

breach  of,  see  Case,  13. 
Parol  modification  of,  see  Contracts,  707, 

708. 
Authority  of  architect  to  change  plans,  see 

Contracts,  703. 
Materiality  of  architect's  good  or  bad  faith 
in  failing  to  pass  on  plans  and  draw- 
ings  for    changes    in   work,    see    Con- 
tracts, 638. 
Termination    or    repudiation    of,    see    Con- 
tracts, 711,  712,  716,  728a. 
Right    of    action    on,    generally,    see    Con- 
tracts, 771,  772. 
Defense  to  action  on,  see  Contracts,  781, 

782 
Digest  1-52  I..B.A.(N.S.) 


Materialman's  failure  to  deliver  materials 
causing  delay  in  execution  of  contract, 
see  Contracts,  639;  Damages,  23,  171, 
172. 

Reasonableness  of  custom  of  architect  *o 
retain  plans  and  specifications,  see 
Customs,   7. 

Measure  of  damages  on,  see  Damages,  116- 
199. 

Stipulation  in,  for  penalty  in  case  of  delay, 
see  Damages,  226-230. 

Damages  for  wrongful  termination  of,  see 
Damages,  688. 

Measure  of  damages  where  contractor  has 
been  delayed  in  collection  of  amount 
due  him,  see  Damages,  103. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  644. 

Evidence  in  action  on,  see  Evidence,  1634, 
1648. 

Sufficiency  of  proof  as  to  damages  resulting 
from  breach,  see  Evidence,  2272. 

Filing  claim  for  labor  on,  against  decedent's 
estate,  see  Executors  and  Adminis- 
trators, 106. 

As  to  mechanics'  liens  on  building,  see  Me- 
chanics' Liens. 

Liability  of  contractor  for  injury  to  em- 
ployee, see  Master  and  Servant, 
1057-1064. 

Liability  of  subcontractor  for  tort  of  serv- 
ant causing  injury  to  employee  of  gen- 
eral contractor,  see  ^Lister  and  Serv- 
ant, 473-475. 

Owner's  liability  for  negligence  of  contrac- 
tor generally,  see  Master  and  Servant, 
III.  b. 

Injury  to  contractor  by  defects  in  building 
existing  at  time  he  commenced  work, 
see  Negligence,  96. 

Liability  of  state  commissioners  discharg- 
ing contractor  employed  to  construct 
state  building,  see  Office:rs,  99. 

Personal  liability  to  contractors  of  officer 
making  contract,  see  Officers,  101. 

Notice  to  materialman  of  shortage  in  quan- 
tity and  defects  in  quality,  see  Sale, 
135,  136. 
Relation    created   by   written   contract   for 

construction  work,  see  Trial,  224. 
Contracts    for    public    work   generally,    see 

Contracts,  VII. 
Contracts  for  public  improvements,  see  "PXTB- 
uc  Improvements.  II. 


BUIIiDING     AND     I<OAN    ASSOCIA- 
TIONS. 

I.  In  general,  1—3. 
II.  Stock,;  advance  dttes,  4,  S. 
III.  Loans;  mortgages,  6—15. 
a.  In  general,   6—12. 
h.  Premiums,    13—15. 

c.  Usury. 

d.  Foreclosure. 
IV.  Dues  and  fines. 

V.  Potcers  generally,   16—21. 
VI.  Withdrawals,  22,  23. 


.•-BUILDING  AND  LOAN  ASSOCIATIONS,   I,— III.  a. 


331 


VII.   Termination;    insolvency;    wind- 
ing  up,   24—30. 
Till.  Foreign   associations,   31,   32. 

Gift  of  certificate  of  shares  in,  see  Gifts, 

25. 
Evidence  by  officers  of,  as  to  terms  of  loan 

to    married    woman    secured    through 

husband  since  deceased,  see  Witnesses, 

58. 

J.  In  general. 

(See  also   same  heading   in  Digest   L.R.A. 
1-10.) 

By-laTirs. 

Estoppel  of  member  voting  f->r  amendment 

of,  see  Estoppel,  110. 
See  also  infra,  23,  26. 

1.  A  second  auction  of  funds  on  the 
same  evening  is  not  prevented  by  a  pro- 
vision of  a  by-law  of  a  building  and  loan 
association  to  the  effect  that  no  loan  shall 
be  made  to  a  second  bidder  on  the  same 
evening  for  a  premium  lower  than  the  suc- 
cessful bid.  Spithover  v.  Jefferson  Bldg.  & 
Loan  Asso.  26:  1135,  125  S.  W.  766,  225  Mo. 
660. 

Ponder  of  officers. 

2.  The  board  of  managers  of  a  build- 
ing and  loan  association  '  has  no  power  to 
transfer  to  another  association  the  con- 
tract of  a  borrowing  stockholder.  Cobe  v, 
Lovan,  4:  439,  92  S.  W.  93,  193  Mo.  235. 

(Annotated) 

3.  That  the  foreclosure  of  a  building 
and  loan  association  mortgage  is  ordered 
by  its  former  president  will  not  validate  the 
proceeding  if  he  is  acting  as  agent  of  an- 
other association  to  which  the  former  asso- 
ciation has  attempted  to  transfer  its  assets. 
Cobe  v.  Lovan,  4:  439,  92  S.  W.  93,  193 
Mo.  235. 

//.  Stock,;  advance  dues. 

(See   also   same   heading   in  Digest  L.R.A. 
1-10.) 

Taxation  of  preferred  stock  in,  see  Taxes, 
65. 

4.  A  certificate  of  shares  in  a  building 
and  loan  association,  assigned  by  indorse- 
ment in  blank  upon  the  back  thereof  by  the 
person  to  whom  it  was  issued,  will  prima 
facie,  as  between  the  parties  themselves, 
constitute  the  vendee  and  holder  thereof 
the  owner  of  such  certificate.  Dewey  v. 
Barnhouse,  29:  166,  109  Pac.  1081,  83  Kan, 
12. 

Maturity  of  stock. 

5.  A  guaranty  by  a  building  and  loan 
association  that  only  a  certain  number  of 
payments  on  stock  shall  be  necessary  in  or- 
der to  mature  it,  even  though  ultra  vires,  is 
not  illegal,  and  the  association  will  not  be 
heard  to  say,  in  a  controversy  with  the 
borrowing  member,  that  the  guaranty  is  void 
because  beyond  its  power.  St.  John  v. 
Digest  1-52  L.R.A.(N.S.) 


Iowa  Business  Men's  Bldg.  &  L.  Asso.  15:  503, 
113  N.  W.  863,  136  Iowa,  448.     (Annotated) 

///.  Loans;  mortgages. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Estoppel  of  member  by  voting  for  amend- 
ment of  by-laws  as  to,  see  Estoppel, 
110. 

See  also  infra,  27. 

6.  Suspension  by  a  building  and  loan 
association  of  the  payment  of  dues  on  its 
stock  by  its  membei^  for  an  unreasonable 
time,  so  as  to  work  a  material  departure 
from  its  general  plan  and  scheme  of  satis- 
fying loans  made  to  its  members  of  the  ul- 
timate value  of  their  shares  of  stock  by 
maturing  the  stock,  affords  ground  for  dis- 
solution of  the  contractual  relations  exist- 
ing between  it  and  a  member  to  whom  such 
loan  has  been  made.  Burkheimer  v.  Na- 
tional Mut.  Bldg.  &  L.  Asso.  4:  1047,  53 
S.  E.  372,  59  W.  Va.  209.  (Annotated) 

7.  A  borrowing  member  of  a  building 
and  loan  association,  whose  loan  was  made 
prior  to  a  statute  providing  that  no  associa- 
tion shall  be  allowed  to  collect  from  a  bor- 
rower in  premium  and  interest  more  than  8 
per  cent,  that  payments  shall  be  credited  on 
anniversary  days,  and  payments  on  stock 
treated  as  payments  on  the  mortgage,  to  con- 
form to  which  the  association  has  amended 
its  articles  of  incorporation,  is  not  obliged 
to  wait  until  sued  in  order  to  have  an  ac- 
counting and  release  of  his  mortgage  upon 
the  basis  fixed  by  the  statute  and  the  amend- 
ed articles  of  incorporation.  St.  John  v. 
Iowa  Business  Men's  Bldg.  &  L.  Asso.  15: 
503,  113  N.  W.  863,  136  Iowa,  448. 

8.  Where  a  building  and  loan  associa- 
tion deposits  the  mortgage  of  a  borrower  with 
an  officer  of  another  state  as  part  of  a  trust 
fund  required  by  the  statutes  of  that  state, 
as  a  condition  of  doing  business  within  it, 
for  the  protection  of  its  citizens  who  should 
become  members  of  the  association,  it  ab- 
rogates, ab  initio,  the  contract  between  it 
and  the  borrowing  member;  and  his  debt 
will  be  liquidated  as  though  the  relation 
between  the  parties  was  merely  that  of 
debtor  and  creditor.  Clarke  v.  Darr,  9:  460, 
80  N.  E.  19,  168  Ind.  101.  (Annotated) 
Forfeiture;  credits  or  default. 

9.  The  character  of  a  payment  to  a 
building  and  loan  association  as  one  in  re- 
duction of  the  loan  is  not  changed  by  the 
fact  that,  as  a  matter  of  bookkeeping,  the 
credit  is  not  in  fact  applied  upon  the  loan, 
but  is  entered  upon  some  other  account. 
Butson  v.  Home  Sav.  &  T.  Co.  4:  98^  105 
N.  W.  645,  129  Iowa,  370. 

10.  In  case  of  an  advance  by  one  loan 
association  to  take  up  a  loan  in  another 
upon  stock  which  has  partly  matured,  the 
net  amount  of  the  loan  is  the  sum  still  due, 
and  not  the  face  value  of  the  loan,  although 
the  latter  amount  is  charged  on  the  books 


332 


BUILDING  AND  LOAN  ASSOCIATIONS,  III.  b— V. 


of  the  association,  and  a  credit  as  of  an  ad- 
vance payment  thereon  given  for  the  with- 
drawal value  of  the  stock  in  the  other  as- 
sociation. Butson  V.  Home  Sav.  &  T.  Co. 
4:  98,  105  N.  W.  645,  129  Iowa,  370. 

(Annotated) 
Computing  amount  due  on  default. 
See  also  infra,  28. 

11.  That  an  action  to  foreclose  a  mort- 
gage against  a  borrower  from  a  building 
and  loan  association  is  brought  by  a  re- 
ceiver does  not  deprive  the  borrower  of  the 
benefit  of  a  statute  providing  that,  when 
such  association  seeks  to  enforce  one  of  its 
contracts,  no  greater  recovery  can  be  had 
than  the  net  amount  of  principal  actually 
received,  with  interest  at  not  to  exceed  a 
certain  rate  on  the  n§t  amount  of  the  loan. 
Butson  V.  Home  Sav.  &  T.  Co.  4:  98,  105 
N.  W.  645,  129  Iowa,  370. 

12.  A  member  of  a  building  and  loan  as- 
sociation who  has  borrowed  from  it  the 
ultimate  value  of  the  stock  subscribed  by 
him,  and  who  has  the  right  to  sever  his  rela- 
tions with  the  association  by  reason  of  the 
gross  mismanagement  of  its  affairs,  and 
elects  to  do  so,  should  be  charged  with  the 
amount  of  the  loan  and  legal  interest  there- 
on from  the  date  on  which  he  received  the 
money,  and  be  credited  with  the  interest  and 
premium  paid  until  the  date  on  which  his 
right  to  withdraw  accrued,  and  the  value 
of  his  stock  as  of  such  date,  as  nearly  as 
the  same  can  be  ascertained,  making  due  de- 
ductions for  his  share  of  the  expenses  and 
losses  sustained  up  to  that  date,  and  on  the 
balance  thus  found  to  be  due  from  him  he 
should  be  charged  with  interest,  and  credit- 
ed with  all  payments  thereafter  made  by 
him,  whether  on  account  of  dues,  interest, 
or  premium;  and  in  applying  credits  be- 
fore, on,  and  after  said  date,  the  rule  gov- 
erning partial  payments  should  be  observed 
and  followed.  Burkheimer  v.  National  Mut. 
Bldg.  &  L.  Asso.  4:  1047,  53  S.  E.  372,  59  W. 
Va.  209. 

b.  Premiums. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Constitutionality  of  statute  limiting  inter- 
est or  premiums,  see  CoNSTrruxiONAii 
Law,  779. 

Special  legislation  as  to,  see  Statxjtes,  168. 

See  also  supra,  7. 

13.  A  building  and  loan  association  con- 
tract of  loan,  stipulating  for  the  payment 
of  a  monthly  premium,  limited  to  a  certain 
number  of  payments,  is  not  violative  of  the 
provision  of  W.  Va.  Code  1899,  chap.  54, 
§  26,  relating  to  the  premium  in  such  con- 
tracts. Burkheimer  v.  National  Mut.  Bldg. 
&  L.  Asso.  4:  1047,  53  S.  E.  372,  59  W. 
Va.  209. 

14.  Express  assent  by  an  existing  mem- 
ber to  the  amendment  cf  the  articles  of  in- 
corporation of  a  building  and  loan  associa- 
tion to  conform  to  an  act  limiting  the 
amount  of  premium  and  interest  to  be 
Digest  1-52  I..B.A.(N.S.) 


charged  borrowing  members  and  providing 
for  the  application  of  payments  is  not  nec- 
essar}'  to  entitle  him  to  the  benefit  of  such 
amendment,  where  he  has  not  expressly  dis- 
sented, but  has  allowed  the  association  to 
proceed  under  the  amended  articles ;  as  he 
will  be  deemed  either  to  have  impliedly  as- 
sented or  to  be  estopped  from  denying  hia 
assent;  and,  moreover,  the  amendment  being 
beneficial,  his  assent  will  be  presumed.  St. 
John  V.  Iowa  Business  Men's  Bldg.  &  L. 
Asso.  15:  503,  113  N.  W.  863,  136  Iowa,  448. 
15.  A  building  and  loan  asi^ociation 
which  amends  its  articles  of  incorporation 
so  as  to  conform  to  a  statute  which  limits 
the  interest  and  premiums  to  be  cliarged 
members,  provides  for  the  application  of 
payments,  and  declares,  in  effect,  that  any 
reduction  in  the  rate  of  interest  authorized 
by  the  amended  articles  of  the  association 
shall  apply  to  members  who  had  borrowed 
from  the  association  prior  to  the  passage  of 
the  act,  cannot  be  heard  to  say  that  existing 
members  may  not  take  advantage  of  the 
amended  articles,  for  the  reason  that  they 
do  not  refer  to  existing  contracts.  St.  John 
v.  Iowa  Business  Men's  Bldg.  &  L.  Asso. 
15:  503,  113  N.  W.  863,  136  Iowa,  448. 

c.  Usury. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Special  legislation  as  to,  see  Statutes,  108. 

d.  Foreclosure. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Estoppel  to  deny  validity  of  deed  given  on 
foreclosure  of  mortgage,  see  Estoppkl, 
55. 

See  also  supra,  3. 

IV.  Dues  and  fines. 

(See  also   same   heading   in  Digest   L.R.A. 

1-10.) 

See  supra,  6. 

V.  Powers  generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

See  also  supra,  5. 

To  borrow^  money;  rights  of  lender. 

16.  A  building  and  loan  association  has 
no  implied  power  to  borrow  money  to  pay  a 
withdrawing  stockholder.  Standard  Sav.  & 
L.  Asso.  V.  Aldrich,  20:  393,  163  Fed.  216, 
89  C.  C.  A.  646.  (Annotated) 

17.  One  loaning  money  to  a  building  as- 
sociation to  satisfy  the  claims  of  withdraw- 
ing members,  taking  an  assignment  of  mort- 
gages of  borrowing  members  as  security, 
cannot  hold  the  mortgages  against  the 
claims  of  a  receiver  of  the  association,  since 


.•-.,/ BUILDING  AND  LOAN  ASSOCIATIONS, VI.,  VII. 


333 


he  is  charged  with  knowledge  of  the  want 
of  power  of  the  association  to  make  the  as- 
signment. Standard  Sav.  &  L.  Asso.  v.  Aid- 
rich,  20:  393,  163  Fed.  216,  89  C.  C.  A.  646. 
IS.  One  loaning  money  for  an  illegal 
purpose,  to  an  insolvent  building  associa- 
tion, may  recover  what  remains  in  its  hands, 
and  what  it  has  expended  for  legitimate 
purposes,  on  the  theory  that  ex  cequo  et 
iono  it  ought  not  to  retain  it.  Standard 
Sav.  &  L.  Asso.  v.  Aldrich,  20:  393,  163  Fed. 
216,  89  C.  C.  A.  6-16. 

19.  One  lending  money  to  a  building  as- 
sociation with  knowledge  that  it  was  bor- 
rowed for  the  purpose  of  paying  withdraw- 
ing members  cannot  compel  a  repayment  on 
the  ground  of  estoppel  to  deny  the  power 
to  borrow.  Standard  Sav.  &  L.  Asso.  v. 
Aldrich,  20:  393,  163  Fed.  216,  89  C.  C.  A. 
646. 

20.  One  loaning  money  to  a  building  as- 
sociation with  knowledge  that  it  was  bor- 
rowing money  and  assigning  securities  for 
an  illegal  purpose  cannot  claim  the  stand- 
ing of  an  innocent  party.  Standard  Say.  & 
L.  Asso.  V.  Aldrich,  20:  393,  163  Fed.  216, 
89  C.  C.  A.  646. 

21.  One  lending  money  to  a  building  as- 
sociation with  knowledge  of  its  intention  to 
use  it  for  an  illegal  purpose  can  recover 
the  money  only  to  the  extent  that  he  shows 
that  the  association  has  been  benefited  by 
it.  Standard  Sav.  &  L.  Asso.  v.  Aldrich, 
20:  393,  163  Fed.  216,  89  C.  C.  A.  646. 

VI.  Withdrawals. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.J 

Presumption  on  appeal  as  to  giving  notice 
of  withdrawal,  see  Appeal  and  Error, 
435. 

Estoppel  to  withdraw,  see  Estoppel,  110. 

Burden  of  establishing  member's  right  to 
withdraw,  see  Evidence,  517. 

Burden  of  showing  that  rights  on  accept- 
ance of  withdrawal  become  fixed  be- 
fore insolvency,  see  Evidence,  595. 

See  also  supra,  12,  16,  17;  infra,  29. 

22.  A  delinquent  member  of  a  building 
and  loan  association  is  not  entil;led  to  with- 
draw from  the  association  if  the  by-laws 
provide  that  only  such  shares  can  be  with- 
drawn as  are  in  good  standing,  with  all 
dues,  claims,  and  fines  paid.  Hoyt  v. 
Harbor  &  Suburban  Bldg.  &  Sav.  Asso.  49: 
1129,  90  N.  E.  349,  197  N.  Y.  113. 

( Annotated ) 

23.  A  waiver  of  the  right  to  forfeit 
shares  in  a  building  and  loan  association  for 
delinquency  in  payment,  or  of  the  right  to 
assess  fines  for  such  delinquency,  does  not 
waive  a  provision  of  a  by-law  permitting 
withdrawals  only  by  members  in  good 
standing.  Hoyt  v.  Harbor  Cc  Suburban 
Bldg.  &  Sav.  Asso.  49:  1129,  90  N.  E.  349, 
197  N.  Y.  113. 

Digest  1-52  I<.R.A.(N.S.) 


VII.  Termination;  insolvency;  winding 
up. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Presumption  on  appeal  that  notice  to  with- 
draw was  not  given  until  after  insol- 
vency, see  Appeal  and  Error,  435. 

Presumption  and  burden  of  proof  as  to  pri- 
ority, see  Evidence,  595. 

Relief  against  decree  fixing  amount  of  in- 
debtedness of  insolvent  association,  see 
Judcment,  402. 

See  also  supra,  11,  17,  18. 

24.  The  insolvency  of  a  building  and 
loan  association  suspends  the  power  of  the 
directors  to  apply  funds  to  the  payment  of 
withdrawing  shareholders.  Standard  Sav. 
«fe  L.  Asso.  v.  Aldrich,  20:  393,  163  Fed.  216, 
89  C.  C.  A.  646. 

25.  Holders  of  stock  in  an  insolvent 
building  and  loan  association  who  do  not 
appear  in  an  action  to  obtain  a  declaration 
of  the  rights  of  the  various  classes  of  stock- 
holders cannot  be  denied  the  right  to  share 
in  the  assets,  if  the  books  had  been  de- 
stroyed so  that  it  was  not  possible  to  make 
all  stockholders  parties  to  the  proceedings. 
Pacific  Coast  Sav.  Soc.  v.  Sturdevant,  49: 
1 142,  133  Pac.  485,  165  Cal.  687. 

26.  A  provision  in  the  by-laws  of  a 
building  and  loan  association  that  matured 
shares  shall  be  paid  in  the  order  of  maturity 
does  not  give  the  holders  of  such  shares 
priority  over  the  holders  of  other  classes  in 
case  of  the  insolvency  of  the  association. 
Pacific  Coast  Sav.  Soc.  v.  Sturdevant,  49: 
1 142,  133  Pac.  485,  165  Cal.  687. 

27.  A  receiver  appointed  after  insolvency 
of  a  building  and  loan  association  proceeds 
in  like  manner  as  the  directors  thereof 
might  have  done  if  insolvepcy  had  not  su- 
pervened as  to  mortgage  debts  that  become 
due  and  payable,  not  by  the  insolvency  of 
the  association,  but  according  to  the  term* 
of  such  mortgages  and  under  the  by-laws  of 
the  association,  by  the  default  of  the  bor- 
rower himself,  prior  to  the  insolvency  of  the 
association.  Re  State  Mut.  Bldg.  &  Loan 
Asso.  (N.  J.  Err.  &  App.)  19:  588,  71  Atl. 
251,   74   N.  J.  Eq.    807. 

28.  The  rule  that  the  mortgagor,  in  the 
computation  of  the  amount  payable  upon  a 
mortgage  made  to  a  building  and  loan  asso- 
ciation by  one  of  its  members,  and  which 
has  become  due  by  reason  of  the  insolvency 
of  the  association,  is  entitled  to  have  cred- 
ited upon  the  principal  of  the  mortgage,  all 
sums  paid  by  him  as  premiums  for  the  loan, 
does  not  apply  to  mortgage  debts  that  be- 
come due,  not  by  the  insolvency  of  the  as- 
sociation, but  according  to  the  terms  of  such 
mortgages  and  under  the  by-laws  of  the 
association,  by  the  default  of  the  borrower 
himself  prior  to  the  insolvency  of  the  asso- 
ciation, since,  in  the  latter  case,  the  mere 
breach  of  the  legal  contract  gives  rise  to  no 
equitable  considerations.  Re  State  Mut. 
Bldg.  &  Loan  Asso.  (N.  J.  Err.  &  App.)  19: 
588,  71  AtL  251,  74  N.  J.  Eq.  807. 


334 


BUILDING  AND  LOAN  ASSOCIATIONS,  VIII.— BUILDINGS. 


29.  Notice  of  withdrawal  of  matured 
«tock  in  a  building  and  loan  association  at 
A  time  wlien  the  association  was  in  fact  in- 
solvent, but  prior  to  the  entry  of  the  judg- 
ment declaring  the  insolvency,  does  not,  in 
the  absence  of  a  by-law  requiring  it,  entitle 
the  owners  of  such  stock  to  preference  over 
the  holders  of  other  classes  of  stock  in  pay- 
ment out  of  the  assets  of  the  association. 
Pacific  Coast  Sav.  Soc.  v,  Sturdevant,  49: 
1 142,  133  Pac.  485,  165  Cal.  687. 

(Annotated) 
Accounting    Tirken    association    is    in- 
solvent. 

30.  One  who  purchases  stock  in  a  build- 
ing and  loan  association,  for  which  he  agrees 
to  pay  in  instalments,  and  then  borrows 
money  from  the  association  upon  his  note 

'and  mortgage,  pledging  the  stock  as  addi- 
tional security,  is  not,  where  there  is  no 
provision  for  canceling  the  indebtedness 
iwith  the  stock,  entitled,  in  case  the  corpo- 
ration becomes  insolvent,  to  have  the  pay- 
ments and  credits  on  his  stock  credited  on 
the  note  and  mortgage,  although  the  mort- 
gage gives  the  association  the  option  to 
claim  such  credits  in  case  default  in  his  con- 
tract requires  foreclosure  of  the  mortgage. 
Oroover  v.  Pacific  Coast  Sav.  Soc.  43:  874, 
127  Pac.  495,  164  Cal.  67.  (Annotated) 

VIII.  Foreign  associations. 

(See  also   same   heading   in  Digest  L.R.A. 
1-10.) 

31.  Failure  of  a  foreign  building  and 
loan  association  to  comply  with  the  provi- 
sions of  West  Virginia  Code  of  1899,  chap. 
54,  §  30,  requiring  its  articles  of  associa- 
tion and  by-laws  to  be  recorded  in  the  office 
of  the  secretary  of  state,  does  not  preclude 
it  from  transacting  business  in  the  state. 
:  Burkheimer  v.  JSfational  Mut.  Bldg.  &  L. 
'Asso.  4:  1047,  53  S.  E.  372,  59  W,  Va.  209. 
Securities  deposited  by. 
See  also  supra,   8. 

I  32.  A  statute  permitting,  subject  to  the 
provisions  of  the  act,  building  associations, 
in  order  to  secure  the  right  to  do  business 
in  another  state,  to  deposit  securities  with 
an  officer  of  such  state  for  the  benefit  of  its 
members  and  creditors,  does  not  contem- 
plate that  a  trust  fund  shall  be  created 
solely  to  indemnify  members  resident  in  that 
state,  where  the  statute  forbids  the  creation 
of  preferred  stock.  Clarke  v.  Darr,  9:  460, 
80  N.  E.  19,  168  Ind.   101.        (Annotated) 


BUILDING    CONTRACTORS. 

See  Building     and     Constbuction     Con- 
tracts. 


BUILDING    INSPECTOR. 

Mandamus  to,  see  Mandamus,  i35. 
Digest  1-52  L.R.A.(N.S.) 


BUILDING  LINE. 

Covenant  or  condition  in  deed  as  to,  see 
Covenants  and  Conditions,  50,  81, 
96;  Evidence,  1524. 

Constitutionality  of  regulations  as  to,  sec 
Constitutional  Law,  518,  663. 


BUILDING  MATERIALS. 

As  fixtures,  see  Fixtures,  1. 

In  street,  see  Highways,  77,  120,  237,  271, 
296. 

Lien  for,  see  Mechanics*  Liens. 

Failure  to  deliver,  causing  delay  in  execu- 
tion of  contract,  see  Contracts,  639; 
Damages,  23,  171,  172. 


BUILDING   PERMIT. 

See  Buildings,  10,  12,  13;  Constitution  At 
Law,  661;   Evidence,  662. 


BUILDINGS. 


/.  Statutory    and    municipal     regula- 
tions,  1—46. 

a.  In  general,   1—28. 

b.  Fire  escapes,  29—4:6. 
II.  Private  rights. 

Defense  to  suit  to  secure  removal  of,  from 
land,  see  Appeal  and  Error,  741. 

As  to  building  contracts,  see  Building  and 
Construction    Contracts. 

Right  of  architect  in  plans  for,  see  Abchi- 
tect,  2. 

What  necessary  to  constitute  binding  con- 
tract to  employ  superintendent  for  con- 
struction of,  see  Counties,  35. 

Measure  of  damages  for  injury  to,  or  de- 
struction  of,   see  Damages,   III.  k,  2. 

Injunction  against  erection  of,  see  Dam- 
ages, 591;  Injunction,  200,  439. 

Easement  for  support  of,  see  Easements, 
52. 

Duty  of  owner  of  lower  portion  to  keep 
walls    in    repair,    see    Easements,    69. 

Injury  by  electric  wires  in  moving  build- 
ing through  street,  see  Electricity, 
38,  39. 

Elevators  in,  see  Elevators. 

Regulating  piling  of  lumber  near,  see  Con- 
stitutional Law,  197 ;  Municipal 
Corporations,  208. 

Building  encroaching  on  adjoining  prop- 
erty, see  Ejectment,  2;  Encroach- 
ments; Injunction,  34;  M\steb  and 
Servant,  1012. 

Retaining  equitable  jurisdiction  to  prevent 
wrongful  removal  of.  see  Equity,  122. 

Estoppel  of  one  permitting  erection  of 
building  on  his  land  through  mistake, 
see  Estoppel,  113. 


BUILDINGS,  I.  a. 


335 


Removal  of  building  interfering  with  draw- 
bridge, see  Estoppel,  12;  Waters,  106, 
109. 

Presumption  that  building  was  located  on 
land  of  another  without  authority,  see 
Evidence,  629. 

Opinion  evidence  as  to  damage  to,  see  Evi- 
dence,  1131. 

Opinion  evidence  as  to  time  necessary  to 
restore  injured  building,  see  Evidence, 
1144. 

Evidence  aa  to  safety  of  chimneys  left 
standing  during  demolition  of,  see  Evi- 
dence,  1767. 

Right  of  tenant  to  remove,  see  Evidence, 
867,  939;  Landlord  and  Tenant,  123. 

Injury  to  person  by  fall  of  object  from,  see 
Evidence,  1872;  Highways,  269,  270, 
291-295,   310,   314-316,   382,   385. 

Injury  by  fall  of,  see  Evidence,  2443; 
Landlord  and  Tenant,  160;  Master 
AND  Servant,  294,  489,  490;  Negli- 
gence, 96;   Proximate  Cause,  149. 

Right  of  devisee  to  completion  of,  at  ex- 
pense of  estate,  see  Executors  and 
Administrators,  45. 

Fixtures  in,  see  Fixtures,  6-8,  18. 

In  street,  see  Highways,  78,  219,  220. 

Projection  of  steps  of,  into  highway,  see 
Highways,  81. 

Materials  for,  in  highway,  see  Highways, 
77,  120,  237,  271,  296. 

Interference  with  telephone  wires  in  mov- 
ing building  on  street,  see  Highways, 
62,  68-70;  Injunction,  112,  438. 

Compelling  removal  of  wall  by  injunction, 
see  Injunction,  22. 

Mandatory  injunction  to  compel  alteration 
of,  see  Injunction,  43. 

Injunction  against  removal  of,  from  prem- 
ises, see  Injunction,  207. 

Liability  of  landlord  for  injury  by  defects 
in,  see  Landlord  and  Tenant,  III.  c. 

Landlord's  liability  for  injury  to  tenant's 
property  by  fall  of,  see  Landlord  and 
Tenant,  160. 

Lateral  support  for,  see  Lateral  Support, 
II. 

License  to  build  on  land,  see  License,  1,  7. 

Lien  for  money  advanced  to  lessee  for  erec- 
tion of,  see  Liens,  4-7. 

Laches  in  demanding  that  use  of  wall  for 
support  of,  be  discontinued,  see  Limi- 
tation OF  Actions,  33. 

Negligence  in  tearing  down  and  removal  of, 
see  Master  and  Servant,  21,  990. 

Liability  for  injury  caused  by  excavating 
under,  see  Master  and  Servant,  1007. 

Liability  of  contractor  for  injuries  result- 
ing from  defects  in,  see  Master  and 
Servant,  1057-1064. 

Liability  of  municipality  which  raises 
building  to  conform  to  street  grade  for 
injury  to  stranger  by  its  collapse,  see 
Master   and   Servant,   1064. 

Lien  on,  see  Mechanics'  Liens. 

Power  of  municipality  to  provide  for  ap- 
pointment of  deputy  building  inspector, 
see  Municipal   Corporations,   32,   33. 

Contract  by  municipality  to  move,  see  Mu- 
nicipal Corporations,  230,  231. 

Digest  1-52  L.R.A.(N.S.) 


Liability  of  municipality  for  destruction  of, 
see  Municipal  Corporations,  437. 

Destruction  of  building  infected  with  small- 
pox, see  Municipal  Corporations, 
153,  154. 

Erection  on  property  of  pole  by  means  of 
which  access  is  obtained  by  burglar  to 
house  of  neighbor,  see  Negligence,  95. 

Negligence  aa  to  condition  of,  generally,  see 
Negligence,  I.  c;  Landlord  and  Ten- 
ant, III.  c. 

Injury  to,  by  explosions,  see  Negligence, 
273. 

Destruction  of  building  which  constitutes 
a   nuisance,   see  Nuisances,   168,   169. 

As  to  walls,  see  Party  Wall;   Walls. 

Demurrer  to  allegation  that  owner  of  build- 
ing had  failed  to  provide  means  for 
extinguishment  of  fire,  see  Pleading, 
584. 

As  to  public  buildings,  see  Public  Build- 
ings. 

Loss  of,  by  fire  after  contract  of  sale,  see 
Vendor  and   Purchaser,   21-25, 

On  railroad  right  of  way,  injury  to  occu- 
pants by  derailment  of,  see  Railroads, 
57. 

Requirement  of  covenant  against,  in  decree 
for  specific  performance,  see  Specific 
Performance,  126. 

To  whom  listed  for  taxation,  see  Taxes, 
168. 

Damage  to,  by  fall  of  adjoining  building; 
question  for  jury  as  to  proximate 
cause,  see  Trial,  177. 

Question  for  jury  as  to  negligence  as  to, 
see  Trial,  562. 

Conversion  of,  see  Trover,  26. 

/.  Statutory  and  municipal  regulations. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Denial  of  equal  protection  of  law  by  build- 
ing regulations,  see  Constitutional 
Law,  178,  179. 

Due  process  in  regulation  of,  see  Constitu- 
tional Law,  518. 

Police  power  as  to,  see  Constitutional 
Law,    660-663. 

Constitutionality  of  ordinance  establishing 
building  line,  see  Constitutional 
Law,   663. 

Constitutionality  of  restrictions  as  to  lo- 
cation of  retail  store,  see  Constitu- 
tional Law,  660. 

Forbidding  occupation  of,  for  purpose  of 
dealing  in  rags,  see  Municipal  Corpo- 
rations, 198. 

Injunction  against  erection  of,  for  viola- 
tion of  ordinance,  see  Nuisances,  133, 
141. 

Property  owner's  right  to  compel  strict 
conformity  with  building  regulations, 
see  Parties,  110. 

1.  A  provision,  in  a  municipal  ordi- 
nance regulating  the  construction  of  build- 
ings within  the  city,  declaring  that  it  shall 


336 


BUILDINGS,   I.   a. 


be  unlawful  to  erect  a  gas  tank  or  holder 
therein  without  the  written  consent  of  the 
owners  of  all  the  property  witliin  a  radius 
of  1,000  feet  from  the  site  of  such  build- 
ing, is  void.  State  ex  rel.  Omaha  Gas  Co. 
V.  VVithnell,  8:  978,  110  N.  W.  680,  78  Neb. 
978.  (Annotated) 

2.  A  vote  of  a  special  town  meeting  au- 
thorizing a  property  owner  to  repair  and 
put  in  habitable  condition  his  house  does 
not  authorize  a  violation  of  an  ordinance 
forbidding  the  raising,  roofing,  or  enlarging 
of  buildings  with  wood.  Houlton  v.  Tit- 
comb,  10:  580,  60  Atl.  733,  102  Me.  272. 

2a.  A  municipal  corporation  cannot 
make  the  erection  of  frame  buildings  within 
its  limits  dependent  upon  obtaining  the  con- 
sent of  owners  of  brick  or  stone  buildings 
within  a  certain  distance  of  the  proposed 
structure.  Tilford  v.  Belknap,  11:  708, 
103  S.  W.  289,  126  Ky.  244. 

3.  A  municipal  corporation  has  no  au- 
thority inherently,  or  under  the  general 
welfare  clause  of  fts  charter,  to  require 
owners  of  property  on  residence  streets  to 
secure  the  consent  of  a  majority  of  the 
neighboring  property  owners  before  erect- 
ing a  business  block  thereon,  nor  to  require 
buildings  to  be  erected  with  respect  to  lines 
established  some  distance  from  the  street. 
Willison  v.  Cooke,  44:  1030,  130  Pac.  828, 
54  Colo.  320.  C Annotated) 

4.  A  municipal  corporation  may,  under 
constitutional  authority  to  make  and  en- 
force within  its  limits  such  police,  sani- 
tary, and  other  regulations  as  are  not  in 
conflict  with  general  laws,  compel  a  school 
district  organized  by  the  legislature  within 
its  territory  to  comply  with  its  Building 
Code,  notwithstanding  the  school  district 
is  organized  by  a  general  law,  and  its  trus- 
tees are  invested  with  power  to  control  and 
manage  all  school  property  within  the  dis- 
trict. Pasadena  City  School  Dist.  v.  Pasa- 
dena, 47:  892,  134  Pac.  985,  166  Cal.  7. 

(Annotated) 

Regulating  height. 

Delegating  to  commission  power  to  deter- 
mine height  of,  see  Constitutional 
Law,  91,  92. 

Discrimination  in  statute  as  to,  see  Con- 
stitutional Law,  178,  179. 

Police  power  as  to,  see  Constitutional 
Law,  662. 

Questioning  validity  of  statute  limiting 
height,  on  mandamus  to  compel  issu- 
ance of  building  permit,  see  Manda- 
mus, 129. 

5.  The  legislature,  in  regulating  the 
height  of  buildings  in  a  city,  may  permit 
them  to  be  higher  in  the  sections  where 
there  is  a  call  for  office  space  than  in  the 
residential  portions,  although  the  streets  in 
the  former  may  be  narrower  than  in  the 
latter.  Welch  v.  Swasey,  23:  1160,  79  N. 
E.  745,  193  Mass.  364. 

6.  The  prohibition  of  the  erection  of  a 
building  of  greater  height  than  80  feet  in 
the  residential  portion  of  a  city  unless  the 
width  on  the  street  shall  be  at  least  one 
half  its  height  is  not  so  unreasonable  as  to 
make  the  regulation  invalid.  Welch  v. 
Digest  1-52  L.B.A.(N.S.) 


Swasey,  23:  1160,  79  N.  E.  745,  193  Mass. 
364. 

7.  The  legislature  may  limit  the  height 
of  buildings  in  a  section  of  a  city  which  is 
devoted  to  fine  residences,  public  buildings, 
and  works  of  art,  for  the  purpose  of  pro- 
tecting such  buildings  and  works  from  the 
ravages  of  fire.  Cochran  v.  Preston,  23: 
1163,  70  Atl.  113,  108  Md.  220. 

8.  A  building  erected  in  steps  or  ter- 
races with  a  series  of  front  walls  running 
up  one  behind  the  other  to  a  height  exceed- 
ing that  permissable  for  the  front  wall  of 
that  portion  of  the  building  which  abuts 
upon  the  street  violates  a  statutory  pro- 
vision against  the  erection  of  any  building 
the  height  of  which  shall  exceed  the  dis- 
tance of  the  front  or  nearest  external  wall 
of  such  building  from  the  opposite  side  of 
the  street.  Attorney  General  v.  Metcalf, 
1  B.  R.  C.  135,  [1908]  1  Ch.  327.  Also 
Reported  in  77  L.  J.  Ch.  N.  S.  261,  97  L.  T. 
N.  S.  737,  72  J.  P.  97,  24  Times  L.  R.  53. 

9.  Where  a  portion  of  a  building  is 
set  back  from  the  general  line  of  the  front- 
age it  does  not  necessarily  follow  that  that 
portion  may  be  treated  as  a  separate  build- 
ing entitled  to  have  its  height  measured 
according  to  a  different  standard  from  that 
applied  to  the  building  regarded  as  a  whole. 
Attorney  General  v.  Metcalf,  1  B,  R.  C. 
135,  [1908]  1  Ch.  327.  Also  Reported  in  77 
L.  J.  Ch.  N.  S.  261,  97  L.  T.  N.  S.  737,  72 
J,  P.  97,  24  Times  L.  R.  53. 

10.  The  question,  what  constitutes  a 
"front  or  nearest  external  wall"  of  a  build- 
ing within  the  meaning  of  a  statutory  pro- 
vision that  no  building  shall  be  erected 
without  the  consent  of  the  proper  authority 
"so  that  the  height  of  such  building  shall 
exceed  the  distance  of  the  front  or  nearest 
external  wall  from  the  opposite  side  of  the 
street,"  is  a  question  of  fact  to  be  dealt 
with  in  each  individual  case.  Attorney 
General  v.  Metcalf,  1  B.  R.  C.  135,  [1908] 
1  Ch.  327.  Also  Reported  in  77  L.  J.  Ch. 
N.  S.  261,  97  L.  T.  N.  S.  737,  72  J.  P.  97, 
24  Times  L.  R.  53. 

11.  In  determining  whether  a  building 
which  is  not  of  uniform  height  contra- 
venes a  statutory  provision  regulating  the 
height  of  buildings,  it  is  a  question  of  fact 
in  each  case  whether  the  building  under 
consideration  shall  be  treated  as  a  whole 
or  whether  it  may  be  regarded  as  several 
distinct  buildings,  the  height  of  which  may 
be  measured  according  to  different  stand- 
ards. Attorney  General  v.  Metcalf,  1  B.  R. 
C.  135,  [1908]  1  Ch.  327.  Also  Reported 
in  77  L.  J.  Ch.  N.  S.  261,  97  L.  T.  N.  S. 
737,  72  J.  P.  97,  24  Times  L.  R.  53. 
Bnilding  permits. 

Due  process  of  law  as  to,  see  Constitution- 
al Law,  379. 

Police  power  as  to,  see  Constitutional 
Law,  661. 

Presumption,  from  lapse  of  time,  of  appli- 
cation for  permit  for  erection  of  build- 
ing, see  Evidence,  662. 

12.  A  permit  for  a  building,  issued  under 
a  misconception  of  the  facts  in  contra- 
vention  of  the  building   regulations  of   the 


BUILDINGS,  I.  a. 


337 


city,  may  be  revoked,  even  after  building 
operations  have  begun,- — especially  by 
a  board  having  supervision  of  the  action  of 
the  official  who  granted  it.  O'Bryan  v. 
Highland  Apartment  Co.  15:  419,  108  S.  W. 
257,  128  Ky.  282. 

13.  A  section  of  a  municipal  ordinance 
forbidding  the  erection  of  a  building  within 
the  city  limits  without  a  permit  must  be 
read  in  connection  with  another  section  au- 
thorizing the  erection  of  wooden  buildings 
of  certain  dimensions,  for  certain  purposes, 
without  the  fire  limits,  so  that  a  permit  is 
required  even  for  the  latter  class  of  build- 
ings. O'Bryan  v.  Highland  Apartment  Co. 
15:  419,  108  S.  W.  257,  128  Ky.  282. 
Fire   limits. 

Taking  of  property  by  statute  as  to,  see 
Constitutional  Law,  380,  381. 

Review  by  courts  of  ordinance  as  to,  see 
Courts,  166. 

Grant  of  permission  to  erect  building  with- 
in fire  limits  on  certain  conditions,  see 
Estoppel,  241. 

Restraining  municipality  from  removing 
wooden  building  erected  within  fire 
limits,  see  Injunction,  313. 

Injunction  against  preventing  erection  of 
wooden  building,  see  InjunctioxV,  346. 

Acquittal  in  criminal  prosecution  as  res 
judicata  in.  civil  suit,  see  Judgment, 
194. 

Violation  of  ordinance  as  to  fire  limits,  see 
Municipal  Corporations,  220. 

Injunction  against  erection  of  wooden 
building  within  fire  limits,  see  Nui- 
sances, 141;  Parties,  35. 

Abatement  of  building  erected  within  fire 
limits,  see  Nuisances,  168. 

Who  may  maintain  action  to  compel  con- 
formity with  building  regulations,  see 
Parties,  110. 

See  also  supra,  13. 

14.  One  constructing  within  specified 
limits  a  building  entirely  of  wood  except 
that  it  is  covered  on  the  outside  with  sheets 
of  corrugated  iron  is  not  subject  to  fine  and 
imprisonment  under  an  ordinance  providing 
that  all  buildings  within  such  limits  shall 
be  constructed  of  brick,  stone,  or  other  in- 
combustible material  and  covered  with  tin 
or  metallic  or  other  fireproof  roofing,  and 
providing  for  the  punishment  of  any  person 
who  shall  erect  or  attempt  to  erect  "any 
wooden  building"  in  violation  of  such  ordi- 
nance. Sylvania  v.  Hilton,  2:  483,  51  S.  E. 
744,  123  Ga.  754. 

15.  A  building  constructed  by  erecting 
a  wooden  frame,  and  covering  it  on  the  out- 
side with  sheets  of  corrugated  iron,  the  in- 
terior, including  the  flooring,  ceiling,  etc., 
being  entirely  of  wood,  does  not  meet  the 
requirements  of  a  municipal  ordinance  which 
declares  that  within  certain  fire  limits  all 
buildings  shall  be  constructed  of  brick,  stone, 
or  other  incombustible  material,  and  covered 
with  tin,  or  metallic,  or  fireproof  roofing. 
Sylvania  v.  Hilton,  2:483,  51  S.  E.  744,  123 
Ga.  754.  (Annotated) 

16.  A  municipal  ordinance  is  a  reason- 
able and  constitutional  exercise  of  the  police 
power,  which  absolutely  forbids  the  erection 
Digest  1-52  L.R.A.(N.S.) 


of  any  frame  structure  within  the  "fire  lim- 
its," and  permits  the  construction  of  wooden 
structures  for  certain  specified  uses,  and  of 
certain  dimensions,  without  the  "fire  lim- 
its," only  when  they  are  to  be  erected  on  the 
rear  of  a  lot  abutting  on  a  public  alley,  and 
not  within  60  feet  of  any  permanent  build- 
ing, and  a  permit  therefor  has  been  secured 
from  the  city  building  inspector.  O'Bryan 
V.  Highland  Apartment  Co.  15:  419,  108  S. 
W,  257,  128  Ky.  282. 

17.  One  who  has  stipulated,  in  considera- 
tion of  being  permitted  to  place  a  wooden 
building  within  the  fire  limits  of  a  city, 
that  it  may  be  torn  down  at  his  expense 
in  case  he  fails  to  remove  it  at  the  ex- 
piration of  the  stipulated  period,  cannot 
object  to  the  city  acting  under  the  stipu- 
lation after  he  has  failed  to  obey  a  notice 
to  remove  the  building,  if  he  cannot  show 
any  extension  of  the  time  for  its  removal. 
Clark  V.  Deadwood,  18:  402,  117  N.  W.  131, 
22  S.  D.  233. 

18.  The  imposition  of  a  license  fee  upon 
a  business  carried  on  in  a  wooden  building 
within  the  fire  limits  of  the  city  for  sev- 
eral months  after  expiration  of  the  time 
fixed  for  removal  of  the  building  under  the 
contract  permitting  its  erection  is  not  suffi- 
cient to  show  an  extension  of  time  for  such 
removal.  Clark  v.  Deadwood,  18:  402,  117 
N.  W.  131,  22  S.  D.  233. 

19.  In  determining  whether  or  hot  a 
wooden  building  injured  by  fire  has  suffered 
such  injury  in  proportion  to  its  value  as  to 
be  subject  to  removal  from  the  fire  limits  of 
the  city,  the  value  of  the  concrete  fire-proof 
base  on  which  it  stands  should  not  be  taken 
into  consideration.  Davison  v.  Walla  Walla, 
21:454,   100   Pac.   981,   52   Wash.   453. 

20.  The  removal  of  a  building  erected 
within  the  fire  limits  of  a  city  contrary  to 
its  ordinance  is  merely  an  exercise  of  the 
police  power,  which  does  not  require  a  ju- 
dicial proceeding  to  determine  whether  or 
not  the  building  was  subject  to  removal. 
Davison  v.  Walla  Walla,  21:454,  100  Pac. 
981,  52  Wash.  453. 

21.  A  municipal  corporation  has  power 
to  require  the  removal  of  a  wooden  building 
located  within  its  fire  limits,  when  it  is 
damaged  by  fire  to  the  extent  of  30  per 
cent  of  its  value,  under  charter  authority 
to  make  regulations  for  the  prevention  of 
accidents  by  fire,  and  to  prohibit  the  erec- 
tion, within  certain  designated  limits,  of 
buildings  whose  outer  walls  are  not  con- 
structed of  brick,  stone,  or  iron.  Davison 
v.  Walla  Walla,  21:454,  100  Pac.  981,  52 
Wash.  453.  (Annotated) 

22.  A  city  ordinance  establishing  fire 
limits,  and  prohibiting  the  erection  of  any 
wooden  building  within  such  limits,  does 
not  conflict  with  a  statute  requiring  rail- 
roads to  permit  the  construction  of  ele- 
vators upon  the  right  of  way,  where  the 
statute  makes  no  provision  as  to  the  ma- 
terials of  which  the  elevators  are  to  be  con- 
structed. Red  Lake  Falls  Milling  Co.  v. 
Thief  River  Falls,  24:  456,  122  N.  W.  872, 
109  Minn.  52. 


22 


338 


BUILDINGS,  I.  b. 


23.  A  city  ordinance  establishing  fire 
limits,  and  declaring  it  unlawful  to  erect  or 
attempt  to  erect  any  wooden  building  with- 
in euch  limits,  prohibits  the  moving  of  an 
already  constructed  wooden  building  from  a 
point  outside  to  a  location  within  such 
limits.  Red  Lake  Falls  Milling  Co.  v.  Thief 
River  Falls,  24:  456,  122  N.  W.  872,  109 
Minn.   52.  (Annotated) 

24.  A  municipal  ordinance  declaring  it 
unlawful  to  construct  any  wooden  building 
within  the  fire  limits  of  the  city  is  not 
violated  by  a  repairing  or  jemodeling  of  a 
wooden  building,  unless  it  is  done  to  the 
extent  of  substantially  erecting  a  "new 
building"  as  that  word  is  commonly  under- 
stood. Mayville  v.  Rosing,  26:  120,  123  N. 
W.  393,  19  N.  D.  98.  (Annotated) 

25.  To  violate  a  municipal  ordinance  de- 
claring it  unlawful  to  construct  any  wooden 
building  within  the  established  fire  limits 
of  a  city,  the  acts  must  be  brought  within 
the  terms  of  the  ordinance,  or  synonymous 
terms,  or  terms  included  within  the  terms  of 
the  ordinance;  and  the  words  "repairing" 
and  "remodeling"  are  not  synonymous,  or 
included  within  the  meaning  of  the  word 
"building."  Mayville  v.  Rosing,  26:  120,  123 
N.  W.  393,  19  N.  D.  98. 

26.  No  conviction  can  be  had  under  a 
municipal  ordinance  declaring  it  unlawful  to 
construct  any  wooden  building  within  the 
established  fire  limits  of  the  city,  solely  on 
the  fact  that  the  acts  complained  of  are 
within  the  spirit  or  purpose  of  the  ordi- 
nance. Mayville  v.  Rosing,  26:  120,  123  N. 
W.  393,  19  N.  D.  98. 

27.  The  changing  of  a  wooden  building 
42  feet  long,  24  feet  wide,  and  10  feet  high 
at  the  highest  point  outside  of  a  skylight 
about  17  feet  high  at  its  highest  point,  the 
sides  of  which  building  were  of  unequal 
height,  by  the  removal  of  the  roof  and 
skylight,  and  the  raising  of  the  building, 
except  at  the  front,  3}  feet  on  one  side  and 
7i  feet  on  the  other,  thereby  making  the 
sides  of  equal  height;  and  the  building  of 
an  addition  on  the  rear  16  feet  of  the  upper 
part,  which  addition  contains  four  rooms 
and  has  a  peaked  roof,  the  peak  of  which'  is 
17  feet  and  the  base  12  feet  from  the 
ground;  the  front  of  the  building  not  being 
changed  as  to  height  or  appearance,  and  the 
only  change  in  the  appearance  of  the  sides 
being  that  made  by  the  increased  height, — 
does  not  constitute  a  violation  of  a  mu- 
nicipal ordinance  declaring  it  unlawful  to 
construct  a  wooden  building  within  the  fire 
limits  of  the  city.  Mayville  v.  Rosing,  26: 
120,  123  N.  W.  393,  19  N.  D.  98. 

28.  A  municipal  ordinance  requiring  all 
repairs  to  roofs  within  the  fire  limits  to  be 
of  noninflammable  material  does  not  pro- 
hibit the  replacing  of  a  few  wooden  shingles 
with  new  ones  of  the  same  material,  since 
the  fire  risk  is  not  thereby  materially  in-  i 
creased.     Seneca  v.  Cochran,  26:  124,  66  S.  I 


E.  288,  84  S.  C.  279. 
Digest  1-52  L.R.A.(N.S.) 


( Annotated ) 


b.  Fire  escapes. 

(See  also  same  heading  in  Digest  L.R.A.. 
1-10.) 

Submission  of  question  as  to,  see  Agbeed 
Case,  2, 

Liability  of  charitable  institution  for  in- 
jury by  fall  of,  see  Charities,  69. 

Liability  of  charitable  corporation  for  fail- 
ure to  maintain,  see  Charities,  73. 

Right  of  owner  of  easement  to  construct,  as 
against  fee  owner,  see  Easements,  75. 

Negligence  of  independent  contractor  plac- 
ing fire  escapes  on,  see  Master  and 
Servant,  1024,  1025;  Trial,  602. 

Assumption  of  risk  of  lack  of  iire  escapes, 
by  minor  employee,  see  Master  and 
Servant,  610. 

29.  The  general  police  power  conferred 
upon  a  municipality  does  not  include  power 
to  compel  the  placing  of  fire  escapes  on  an 
eleemosynary  institution  for  the  blind  which 
belongs  to,  and  is  entirely  under  the  control 
and  management  of,  the  state.  Kentucky 
Institution  for  Education  of  Blind  v.  Louis- 
ville, 8:  553,  97  S.  W.  402,  123  Ky.  767. 

30.  A  certificate  of  approval  of  a  fire 
escape  granted  to  the  owner  of  a  building 
operates  in  favor  of  his  successor  in  title. 
Bombright  v.  Schoettler,  i:  1091,  127  Fed. 
320,  64  C.  C.  A.  212. 

31.  A  provision  in  an  action  amending  a 
statute  requiring  the  placing  of  fire  escapes 
on  buildings,  that  nothing  in  the  act  shall 
interfere  with  fire  escapes  now  in  use,  ap- 
proved by  the  proper  authorities,  save»  from 
the  operation  of  the  statute  fire  escapes 
which  had  been  officially  approved  under 
the  former  statute.  Bonbright  v.  Schoettler, 
i:  1091,  127  Fed.  320,  64  C.  C.  A.  212. 

32.  Under  a  provision  in  a  statute  requir- 
ing the  placing  of  fire  escapes  on  buildings, 
that  it  shall  be  the  duty  of  certain  officers 
to  test  escapes,  and,  if  they  prove  satis- 
factory, to  give  a  certificate  of  approval, 
such  certificate,  when  properly  issued,  must 
be  taken  as  conclusive  evidence  of  com- 
pliance with  the  law.  Bonbright  v.  Schoet- 
tler, i:  1091,  127  Fed.  320,  64  C.  C.  A.  212. 

(Annotated) 

33.  Compliance  with  an  ordinance  requir- 
ing construction  of  fire  escapes  gives  no 
vested  right  to  the  continuance  of  such  es- 
capes, and  does  not  prevent  the  municipal- 
ity from  requiring  them  to  be  replaced  by 
others  of  a  different  pattern.  Seattle  v. 
Hinckley,  2:  398,  82  Pac.  747,  40  Wash.  468. 

(Annotated) 

34.  Existing  buildings  are  included  in  an 
ordinance  providing  that  all  buildings  of 
certain  kinds  above  a  certain  height  shall 
be  provided  with  a  certain  kind  of,  fire  es- 
cape. Seattle  v.  Hinckley,  2:  398,  82  Pac. 
747,  40  Wash.  468. 

Liability   of   OTvner   generally. 

35.  The  provision  of  a  statute  requiring 
fire  escapes  on  buildings,  that  a  certificate 
by  the  proper  official  approving  a  particular 
fire  escape  shall  relieve   the  owner  of  the 


BUILDINGS,  II. 


339 


building  from  liability  for  the  penalty  pro- 
vided for  noncompliance  with  the  statute, 
without  any  mention  of  civil  liability,  does 
not  prevent  its  also  relieving  him  from  the 
latter.  Bonbright  v.  Schoettler,  i:  1091,  64 
C.  C.  A.  212,  127  Fed.  320. 

36.  An  order  of  a  factory  inspector  to 
place  fire  escapes  on  a  factory  is  not  neces- 
sary to  make  it  the  duty  of  the  owner  to  do 
so,  under  a  statute  providing  that  such  fire 
escapes  as  may  be  deemed  necessary  by  the 
factory  inspector  shall  be  provided  on  the 
outside  of  every  factory,  and  describing 
their  form,  location,  and  method  of  con- 
struction. Arnold  v.  National  Starch  Co. 
ai:  178,  86  N.  E.  815,  194  N.  Y.  42. 

37.  The  owner  of  a  building  who  fails  to 
place  the  fire  escapes  thereon  which  aie  re- 
quired by  statute,  cannot  escape  liability 
for  injury  by  fire  to  an  occupant  of  the 
building,  on  the  theory  that  other  sufficient 
means  of  escape  were  provided,  if  one  con- 
sisted of  a  stairway  which  was  blocked  and 
useless  by  panic  stricken  persons  seeking 
to  escape  from  the  building,  and  the  other 
was  a  mere  ladder  to  the  roof,  which  can- 
not be  regarded  as  an  efficient  means  of  es- 
cape from  a  fire  burning  below.  Arnold  v. 
National  Starch  Co.  21:  178,  86  N.  E.  815, 
194  N.  Y.  42.  (Annotated) 

38.  The  owner  of  a  building  who  has 
failed  to  place  thereon  the  fire  escapes  re- 
quired by  statute  cannot  escape  liability 
for  injury  to  an  occupant  burned  by  a  fire 
started  in  the  building,  if  the  detention  of 
the  injured  person  for  an  unnecessary  time 
by  reason  of  the  absence  of  the  fire  escape 
caused  or  contributed  to  the  injury.  Ar- 
nold v.  National  Starch  Co.  21:  178,  86  N. 
E.  815,  194  N.  Y.  42. 

Itiability  of  landlord. 

Presumption  of  tenant's  knowledge  of  ab- 
sence of  fire  escape,  see  EviDE.'sfCE,  190. 

Effect  of  landlord's  failure  to  equip  build- 
ings with  fire  escapes  on  right  to  re- 
cover rent,  see  Landlokd  and  Tenant, 
180,  181. 

Absence  of  fire  escape  as  proximate  cause 
of  injury,   see   Pboximate   Cause,   28. 

Question  for  jury  as  to  knowledge  of  ab- 
sence of  fire  escapes,  see  Trial,  297. 

39.  The  owner  of  a  building,  and  not  of 
the  business,  is  referred  to  in  a  statute  re- 
quiring the  owner,  proprietor,  lessee,  or 
keeper  of  certain  kinds  of  buildings  to  place 
fire  escapes  thereon.  Yall  v.  Snow,  10:  177, 
100  S.  W.  1,  201  Mo.  511.  (Annotated) 

40.  That  a  building  was  not  constructed 
to  be  used  for  a  hotel  does  not  relieve  the 
owner  from  the  statutory  duty  of  placing 
fire  escapes  on  it  if  he  leases  it  for  that  pur- 
pose, and  knows  that  it  is  so  used.  Yall  v. 
Snow,   10:  177,   100  S.  W.   1,  201   Mo.   511. 

(Annotated) 

41.  That  a  building  is  under  lease  at  the 
time  of  the  passage  of  a  statute  requiring 
the  owner,  lessee,  or  keeper  of  certain  kinds 
of  buildings  to  provide  them  with  fire  es- 
capes does  not  relieve  the  owner  of  the  duty 
thereby  imposed.  Yall  v.  Snow,  10:  177, 
100  S.  W.  1,  201  Mo.  511.  (Annotated) 

42.  Mere  length  of  time  of  occupancy,  un- 
Dieest  1-52  Ii.R.A.(N.S.) 


accompanied  by  some  affirmative  act  or  cir- 
cumstance on  the  tenant's  part,  showing 
an  intent  to  relieve  the  landlord  from  the 
consequences  that  might  result  to  the  ten- 
ant from  the  landlord's  failure  to  perform 
the  statutory  duty  imposed  upon  him  of  pro- 
viding fire  escapes,  cannot  relieve  the  land- 
lord from  responding  in  damages,  in  case  a 
fire  breaks  out  and  the  tenant  suffers  injury 
by  reason  of  the  absence  of  such  fire  escapes. 
Cittadino  v.  Shackter  (N.  J.  Err.  &  App.) 
43:  80,  85  Atl.  174,  83  N.  J.  L.  593. 

43.  A  tenant  in  an  apartment  house  owes 
no  duty  to  the  landlord  to  examine  and  as- 
certain whether  any  fire  escapes  have  been 
provided,  but  may  reasonably  assume  that 
the  landlord  has  performed  the  duty  im- 
posed upon  him  by  statute  in  this  regard. 
Cittadino  v.  Shackter  (N.  J.  Err.  &  App.) 
43:  80,  85  Atl.  174,  83  N.  J.  L.  593. 

44.  Even  though  a  tenant  has  discovered 
that  the  landlord  has  failed  to  perform  his 
statutory  duty  of  providing  fire  escapes, 
she  may  reasonably  assume  that  he  will  per- 
form that  duty  at  any  time  and  not  con- 
tinue to  disregard  the  law.  Cittadino  v. 
Shackter  (N.  J.  Err.  &  App.)  43:  80,  85 
Atl.  174,  83  N.  J.  L.  593. 

45.  A  property  owner  who  has  provided 
statutory  fire  escapes  and  rented  certain 
stores  above  the  second  story  in  the  build- 
ing to  firms  engaged  in  a  legitimate  manu- 
facturing business  is  not  bound  to  exercise 
supervision  over  the  portions  of  the  build- 
ing rented,  so  as  to  insure  that  the  passages 
or  entrances  to  the  fire  escapes  arc  at  all 
times  kept  open.  West  v.  Inm-in,  39:  744, 
74  S.  E.  527,  137  Ga.  822.  (Annotated) 

46.  A  property  owner  who  has  provided 
statutory  fire  escapes  and  rented  stores 
above  the  second  story  in  the  building  to 
firms  engaged  in  legitimate  manufacturing 
business  is  not  liable  in  damages  to  an  em- 
ployee in  the  building  working  on  a  floor 
above  the  second,  who  suffers  injuries  from 
fire  in  consequence  of  obstructions  placed 
in  the  passageway  to  the  fire  escape  by  a 
tenant  who  had  rented  that  portion  of  the 
building  around  and  about  the  escape.  West 
V.  Inman,  39:  744,  74  S.  E.  527,  137  Ga.  822. 

II.  Private  rights. 

''See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Notice  of  restrictions  to  purchaser  at  auc- 
tion sale,  see  Auctions,  6-8. 

Oral  statements  by  grantor  as  to  building 
restrictions  on  other  lots  in  tract,  see 
Contracts,  267,  322. 

Restrictions  in  covenant  generally,  see 
Covenants  and  Conditions,  28,  45- 
51,   53,   72-84,   91-98,   109,   110. 

Who  may  enforce,  see  Covenants  and  Con- 
ditions, 92,  93,  96-98. 

Equitable  relief  for  violation  of  oral  assur- 
ance by  grantor  as  to  building  restric- 
tions, see  Equity,  63. 

Power  of  executor  to  insert  restrictive  cov- 
enants in  deeds,  see  Executors  and 
Administrators,    57. 


840 


BULK    SALES— BURIAL. 


Injunction  against  breach  of  restrictive 
covenants,  see  Injunction,  80,  81. 

Injunction  to  conii>el  modification  of  build- 
ing so  as  to  comply  with  building  re- 
strictions, see  Injunction,  44. 


BULK  SALES. 


Bee  Assignment  fob  Cbeditobs,  1;  At- 
tachment, 43;  Chattel  Mortgage,  4; 
Constitutional  Law,  249,  250,  530, 
531,  747,  748;  Contracts,  412;  Fraud- 
ulent Conveyances,  13-22,  30,  38,  39; 
Husband  and  Wife,  150. 

♦-•-♦ 


BULL  FIGHTING. 

As  nuisance,  see  Nuisances,  12,  148. 

♦  »♦ 

BURDEN  OF  PROOF. 

Instruction  as  to,  see  Appeal  and  Erbor, 
858;  Trial,  942,  943. 

On  application  for  bail,  see  Bail  and  Re- 
cognizance, 15. 

In  general,  see  Evidence,  II. 


BURGLARY. 


Instructions  in  prosecution  for,  see  Ap- 
peal and  Errob,  333,  1420;  Trial, 
1095. 

Failure  to  instruct  on  circumstantial  evi- 
dence of  intent,  as  reversible  error,  see 
Appeal  and  Error,  1437. 

Kleptomania  as  defense,  see  Criminal  Law, 
36. 

Sentence  for,  see  Criminal  Law,  228. 

Liability  for  killing  another  under  mistak- 
en belief  that  he  was  a  burglar,  see 
Death,  39. 

Presiimption  of,  from  possession  of  recently 
stolen  property,  see  Evidence,  697,  698. 

Evidence  in  prosecution  for,  see  Evidence, 
651,  1896. 

Sufficiency  of  evidence  to  sustain  conviction, 
see  Evidence,  2385,  2386. 

Variance  in  prosecution  for,  see  Evidence, 
2511. 

Civil  liability  for  killing  in  making  ar- 
rest for  burglary,  see  Evidence,  2003. 

Habeas  corpus  to  secure  release  of  one  con- 
victed of,  see  Habeas  Corpus,  44. 

Homicide  in  perpetration  of,  see  Homicide, 
39. 

Indictment  for,  see  Indictment,  etc.,  19, 
93,  94. 

Insurance  against,  see  Insurance,  944, 
945. 

Erection  on  property  of  pole  by  means  of 
which  access  is  obtained  by  burglar  to 
house  of  neighbor,  see  Negligence,  95. 

Injury  to  would-be  burglar  by  spring  gun, 
see  Negligenc"    112. 

Dieest  1-52  L.R.A.(N.S.) 


Question  for  jury  as  to  reasonableness  of 
belief  that  person  killed  was  attempt- 
ing burglary,  see  Trial,  197. 

Liability  of  warehouseman  for  loss  by  theft, 
see  Warehousemen,  5. 

1.  Nitroglycerin  fuse  and  a  detonating 
cap  are  witliin  a  statute  making  unlawful 
the  possession  of  a  machine,  tool,  or  imple- 
ment designed  and  adapted  for  cutting 
through,  forcing,  or  breaking  open  any 
building,  room,  or  vault,  safe,  or  other  de- 
pository with  intent  to  use  or  employ  the 
same  therefor,  in  order  to  steal  therefrom. 
State  V.  Boliski,  50:  825,  145  N.  W.  368, 
78   Wis.    156.  (Annotated) 

2.  Tliat  a  store  is  open  for  business  at 
the  time  a  person  forcibly  opens  its  back 
door  with  intent  to  steal  does  not  consti- 
tute such  an  invitation  to  him  to  enter  as 
to  prevent  his  prosecution  for  burglary. 
Collins  V.  Com.  38:  769,  143  S.  W.  35,  146 
Ky.  698. 

3.  Entering  in  the  nighttime  with  in- 
tent to  commit  a  felony,  a  piazza  which  is 
attached  to  a  dwelling  house,  and  is  in- 
closed with  a  low  railing  not  for  the  pro- 
tection of  the  dwelling,  but  to  keep  dogs 
and  chickens  off  the  piazza,  is  not  bur- 
glary. State  V.  Puckett,  46:  999,  78  S.  E. 
737,  95  S.  C.  114.  (Annotated) 

4.  One  who  unlawfully,  wilfully,  ma- 
liciously, and  forcibly  breaks  and  enters  a 
mill  building,  with  the  intent  to  steal  prop- 
erty of  any  value,  is  guilty  of  burglary, 
although  there  is  no  personal  property  in 
the  building.  Schultz  v.  State,  34:  243,  130 
N.  W.  105,  88  Neb.  613.  (Annotated) 
What  constitutes  a  breaking. 

5.  Opening  a  screen  door  held  shut  by 
springs,  with  the  intent  to  commit  larceny, 
is  a  breaking  within  tlie  meaning  of  the  law 
of  burglary.  State  v.  Henderson,  17:  iioo, 
110  S.  W.  1078,  212  Mo.  208.        (Annotated) 

6.  There  is  a  sufficient  breaking  to  con- 
stitute burglary  if  one  open  an  unlocked 
screen  door  fitted  so  closely  into  the  frame 
as  to  require  strength  to  open  it,  with 
felonious  intent.  Collins  v.  Com.  38:  769, 
143  S.  W.  35,  146  Ky.  698.         (Annotated) 

7.  Pushing  up  a  window  which  is  held 
down  by  its  own  weight  only,  and  has  been 
left  open  enough  to  admit  the  insertion  of  a 
hand  under  it,  so  as  to  form  an  aperture 
large  enough  to  admit  one's  body,  and  en- 
tering the  building  through  the  aperture  so 
made,  is  a  sufficient  breaking  to  constitute 
burglary.  People  v.  White,  17:  1:02,  117 
N.  W.  161,  153  Mich.  617.  (Annotated) 

8.  Pushing  open  a  car  door  found  ajar 
sufficiently  to  effect  an  entrance,  and  the 
entering  into  the  car  to  commit  larceny, 
is  a  sufficient  breaking  to  constitute  bur- 
glary. State  V.  Lapoint,  47:  717,  88  Atl. 
523,  87  Vt.  115.  (Annotated) 


BURIAL. 

Regulation  of  burial  of  corpse,  see  Consti- 
tutional Law,  352. 

V..'.      -•..'-./...J      V<.«— i     ,rt«t3;)|4Cl 


BURIAL  GROUND— BUSINESS   DIRECTORY. 


341 


Contract  to  furnish  burial  at  death,  see 
Contracts,  408;  Insurance,  5,  64, 
303,    825. 

Expense  of,  see  Funeral  Expenses. 

Of  ani.nal  in  cemetery,  see  Injunction,  41. 

Mortgage  to  secure  bond  for,  se^  Mortgage, 
86. 

See  also  Cemeteries;  Corpse. 


BURIAL  GROUND. 

See  Cemeteries.  •:•   ^-jjiM^uy^.^   .wJo 

♦-•-♦ 

BURIAL  LOT. 

Rights  in,  see  Cemeteries,  4,  5. 

Effect  of  including  cost  of  maintaining  in 
gift  for  establishing  liospital,  see  Char- 
ities, 10. 

Interference  with  bodies  in,  see  Corpse,  10 — 
17. 

Ejectment  for,  see  Ejectment,  14. 

♦-•-♦ 


BURIAL  PERMIT. 

See  Corpse,  1. 


t4    v.-i,. 
BURIAL  VAULTi^**^'" 

Right  of  administrator  to  credit  for  ex- 
pense of,  see  Execurors  and  Adminis- 
tbatobs,  115. 


BUSINESS. 


Business  block,  see  Business  Block. 

Business  colleges,  see  Business  Colleges. 

Business  directory,  see  Business  Direc- 
tory. 

Right  of  action  for  wrongful  interference 
with,  see  Case,  18-21. 

Loan  of  credit  by  state  to,  see  Bonds,  83. 

Competition  by  municipality  with,  see  Con- 
stitutional Law,  384,  385. 

Requiring  payment  in  cash  of  value  of 
trade  inducements  offered  to  purchas- 
ers, see  Constitutional  Law,  420. 

Equal  protection  and  privileges  in  regula- 
tion of,  see  Constitutional  Law,  II. 
a,  5. 

Due  process  of  law  as  to,  see  Constitution- 
al Law,  II.  b,  4. 

Police  power  over,  see  Constitutional 
Law,  II.  c,  4. 

Construction  of  contract  to  refrain  from, 
see  Contracts,  366,  367. 

Validity  of  agreement  to  refrain  from,  see 
Contracts,  III.  e,  2. 

What  constitutes  breach  of  contract  to  re- 
frain from,  see  Contracts,  691,  692. 

Termination  of  contract  not  to  compete  in 
business,  see  Contracts,  721,  722. 

Digest  1-52  L.R.A.(N.S.) 


Measure  of  damages  for  breach  of  covenant 
not  to  engage  in,  see  Damages,  120, 
231. 

Injunction  against  breach  of  contract  not 
to  engage  in  competing  business,  see 
Injunction,  70-78. 

What  constitutes  carrying  on,  see  Corpo- 
rations, 415-423. 

Right  of  foreign  corporation  to  engage  in, 
see   Corporations,   423-429. 

Charitable  home  as  business  within  mean- 
ing of  restrictive  covenant,  see  Cov- 
enants AND  Conditions,  73;  Damaged, 

111.  kk. 

Measure  of  damages  for  breach  of  contract 
to    establish    business,    see    Damages, 

112,  686. 

Continuance  of,  by  personal  representative, 
see  Executors  and  Administrators, 
47-50,  67,  68. 

Evidence  of  custom  or  habit  in,  see  Evi- 
dence, 1522-1526. 

Injunction  against  interference  with,  see 
Injunction,  105. 

Effect  of  suspension  of,  on  insurance  policy, 
see  Insurance,  264. 

Charges  injurious  to,  see  Libel  and  Slan- 
der, II.  c. 

Privileged  character  of  communications  in 
course  of,  see  Libel  and  Slander,  II. 
e,  3. 

License  of  right  to  do,  see  License,  II. 

Municipal  regulation  of,  see  Municipal 
Corporations,  II.  c.  4,  d. 

Sufficiency  of  complaint  in  action  for  in- 
terference with,  see  Pleading,  189, 
4J37. 

On  Sunday,  see  Sunday,  III. 

Mistake  in  business  telegram,  see  Tele- 
graphs, II.  a,  3. 

Unfair  competition,  see  Unfair  Compe- 
tition. 


BUSINESS  BLOCK. 

Requiring  consent  of  property  owners  on 
residence  street  for  construction  of 
business  block,  see  Buildings,  3. 

♦-•-♦ ^ — 


BUSINESS  COLLEGES. 

Persons  attending,  as  "school  children"  en- 
titled to  reduced  fare  on  street  rail- 
ways, see  Carriers,  3030. 

Exemption  of,  from  taxation,  see  Taxes, 
100. 


BUSINESS  DIRECTORY. 

Injunction  against  omission  of  name  from, 
see  Action  ob  Suit,  127;  Injunction, 
8,  126. 


342 


BUSINESS  ENTERPRISE— CANALS. 


BUSINESS  ENTERPRISE. 

Loan  of  credit  by  state  to,  see  Bonds,  83. 
Competition  by  municipality  with,  see  Con- 
stitutional Law,  384,  385. 


BUSINESS  TELEGRAM. 

Mistake  in,  see  Telegraphs,  II.  a,  3. 


BUTTER. 

Requiring  marking  of  weight  on  packages 
of,  see  Constitutional  Law,   501. 


BY-LAWS. 

Of  associations  generally,  see  Associations. 


Of  bank,  see  Banks,  233-237. 

Of  board  of  trade,  see  Exchanges,  5. 

Of  beneftt  society,  see  Benevolent  Socie- 
ties, III. 

Of  building  and  loan  association,  see  Build- 
ing AND  Loan  Associations,  1,  23,  26. 

Of  corporation,  see  Corpokations,  141,  291. 

Of  insurance  companies,  see  Appeal  and 
Ebkob,  1089. 

Of  insurance  company,  see  Insueance,  93- 
114,  430,  431;  Pabties,  45. 

Of  loan  association,  see  Estoppel,  110. 

Of  social  clubs,  see  Clubs,  4. 

Of  stock   exchange,   see   Bankbuptcy,   136. 


BYSTANDER. 


Injury  to  bystander  in  making  arrest,  see 
Bonds,  59,  62. 

Homicide  in  killing,  while  shooting  at  an- 
other, see  Homicide,  40,  59. 


C 


CABOOSE. 

Duty  to  passenger  riding  in  or  on,  see  Cab- 

EIERS,   295,   296. 
Negligence   of  passenger   in  riding  on   top 

of,  see  Cabbiebs,  337,  338. 
Injury  to  insured  person  while  riding  in, 

see  Insubance,  722. 


CABS. 


CAMEI.. 

Injury    to    servant   by    vicious    camel,    see 
Masteb  and  Sebvant,  142,  862. 


CAMPAIGN  FUND. 

Contribution  of  corporate  funds  to,  as  lar- 
ceny, see  Labcent,  10. 


See  Hacks. 


See  CoBPSE. 


CADAVER. 


CAFE. 

Liability  for  serving  unfit  food,  see  Food, 

20. 
Liability  of  waiter  in,  obtaining  liquor  for 

guest,  see  Intoxicating  Liqxtobs,  145. 


CALLS. 

For  boundaries,  see  Boundaeies,  II. 

On  paid-up  stock,  see  Cobpobations,  311- 
316. 

On  unpaid  subscriptions  to  stock,  see  Cob- 
pobations, 347,  366. 

As  condition  to  enforcement  of  stockhold- 
er's liability,  see  Cobpobations,  366. 

Of  pastor,  see  Religious  Societies^  IV. 

Digest  1-52  L.R.A.(N.S.) 


CANADIAN  CRIMINAL  CODE. 

Effect  of  adoption  of,  on  common  law,  see 

Common  Law,  1. 
Section  213,  see  Cobpobations,  125. 


CANALS. 

Contract  to  make  basin  connected  with 
canal  as  consideration  for  transfer  of 
property,  see  Cobpobations,  65;  Cove- 
nants AND  Conditions,  105. 

Covenant  of  grantee  of  water  rights  to 
build,  see  Covenants  and  Conditions, 
134. 

Exercise  of  eminent  domain  in  aid  of  con- 
struction of,  for  purpose  of  creating 
electric  power,  see  Eminent  Domain, 
80,  103,   104. 

Requiring  railroad  company  to  construct 
bridge  over  canal  laid  across  its  right 
of  way,  see  Eminent  Domain,  208; 
Railboads,  31. 


CANCELATION— CANDY. 


34a 


Injunction  against  obstruction  of,  see  In- 
junction,  237,   238;    Nuisances,    164. 

Injunction  against  irrigation  canal  com- 
pany, see  Injunction,  215. 

Easement   for   maintenance  of,   see  Vendor 

AND    PUKCIIASER,    106. 

Canal  as  navigable  stream,  see  Waters, 
3-5. 

Right  to  have  water  flow  from,  for  irrigat- 
ing purposes,  see  Waters,  298. 

Prescriptive  right  to  maintain,  see  Waters, 
323. 

1.  There  is  no  right,  without  statutory 
authority,  to  obstruct  a  navigable  canal 
constructed  by  the  state,  although  it  has 
not  been  maintained  in  a  state  of  efliciency 
and  no  commerce  is  actually  carried  on  up- 
on it,  especially  where  the  Constitution  de- 
clares that  all  navigable  waters  shall  for- 
ever remain  public  highways.  State  ex  r61. 
Lyon  v.  Columbia  Water  Power  Co.  22:  435, 
63  S.  E.  884,  82  S.  C.  181. 

2.  A  municipality  acting  under  a  con- 
tract with  a  corporation  to  which  a  navi- 
gable canal  has  been  conveyed  by  the  state 
with  the  obligation  of  keeping  it  open  for 
navigation  can  acquire  no  rights  with  re- 
spect to  the  obstruction  of  the  canal  not  pos- 
sessed by  the  corporation.  State  ex  rel. 
Lyon  V.  Columbia  Water  Power  Co.  22:  435, 
63  S.  E.  884,  82  S.  C.  181. 


CANCELATION.  • 

Of  instruments  generally,  see  Cancelation 

OF  Instruments. 
Of   order    for   goods,   see   Contracts,   190- 

192. 
Of  license  to  use  patent,  see  Patents,  9. 
Of  tax  assessment,  see  Taxes,  196. 


CANCELATION    OF    INSTRUMENTS. 

Of  bond,  see  Bonds,  7. 

Of  contracts,  generally,  see  Contracts,  V. 
c. 

Of  contract  by  corporation,  see  Corpora- 
tions, 100. 

Of  deed,  see  Accounting,  4;  Action  or 
Suit,  128;  Appeal  and  Error,  1519, 
1570;  Contracts,  V.  c;  Courts,  36; 
Evidence,  1361;   Infants,  92,  93. 

Of  fraudulent  conveyance,  see  Fraudulent 
Conveyances,  11,  12. 

Of  instrument  as  cloud  on  title,  see  Cloud 
on  Title,  4,  5,  25-28. 

Of  insurance  policy,  see  Insurance,  III.  c. 

Of  liquor  license,  see  Intoxicating  Li- 
quors, II.  d. 

Of  minor's  deed,  see  Infants,  92,  93. 

Of  mortgage,  see  Cloltd  on  Title,  4;  Du- 
ress, 11 ;  Injunction,  275. 

Of  notes  held  as  collateral,  see  Pledge  and 
Collateral  Security,  17. 

Of  oil  and  gas  lease,  see  Mines,  II.  b,  4,  b. 

Of  patent  for  public  land,  see  Public 
Lands.    15. 

Digest   1-52  E.R.A.(N.S.) 


Of  slierifl"'s  deed,  see  Judicial  Sale,  17. 

Of  stock  subscription,  see  Corporations, 
206-209. 

Of  will,  see  Wills,  I.  c. 

In  partition  suit,  see  PARTiTior    19. 

For   fraud,  see   Fraud  and  Deceit,   32. 

Compelling  accounting  upon  trial  of  suit 
for,  see  Accounting,  4. 

Multifariousness  of  bill  to  cancel  instru- 
ment and  obtain  accounting,  see  Action 
OR  Suit,  128. 

Review  of  judicial  discretion,  see  Appeal 
AND  Error,  567. 

Prejudicial  error  in  action  for,  see  Appeal 
AND  Error,  1519. 

Cancelation  on  appeal,  see  Appeal  and 
Error,   1570. 

Jurisdiction  to  cancel  deed  of  land  located 
in  foreign  country,  see  Courts,  36. 

Jurisdiction  of  suit  for,  see  Equity,  I.  f. 

Parol  evidence  of  mistake  justifying,  see 
Evidence,  1021. 

Evidence  in  action  for,  see  Evidence,  1361. 

Sufficiency  of  evidence  to  justify,  see  Evi- 
dence, 2276. 

Right  to  jury  trial  in  action  for,  s6e  Jury, 
21,  22. 

Surplusage  in  allegation,  see  Pleading,  141. 

Duplicity  of  petition  in  action  for,  see 
Pleading,   164. 

Necessity  of  obtaining  decree  canceling  re- 
lease before  repudiating  it,  see  Re- 
lease, 3. 

Verdict  of  jury  as  advisory  to  court  in  suit 
to  cancel  trust  deed,  see  Trial,  118. 

As  to  reformation  of  instruments,  see  Ref- 
ormation OF  Instruments. 


CANCER. 

Cancer  hospital  as  nuisance,  see  Nuisances, 

41. 
Proximate  cause  of,  see  Proximate  Cause, 

109. 


CANDIDATES. 


In  general,  see  Elections,  IV. 

Libel  of  candidate  for  public  office,  see  Li- 
bel AND  Slander,  II.  d;  II.  e,  5. 

Libel  of  candidate  for  office  in  voluntary 
association,  see  Libel  and  Slander, 
59. 


CANDY. 

Adulteration  of,  see  Conflict  of  Laws, 
101. 

Requiring  candies  exposed  for  sale  to  be 
protected  from  flies  and  dust,  see  Mu- 
nicipal Corporations,  193. 


344 


CANNERIES— CARCASS. 


CANNEBrES. 

Exempting  from  statute  limiting  hours  of 
women's  labor,  see  Constitutional 
Law,  309. 


CANOEING. 


In   high   water    as   voluntary    exposure    to 
danger,  see  Insubance,  771. 


CANVASS. 
Of  vote,  see  EiiEoriONS,  III.  c. 


CAPACITY. 

Judicial    notice    as    to    capacity    of   young 

child,  see  Evidence,  57. 
Presumption  and  burden  of  proof  as  to,  see 

Evidence,  II.  e,  5. 
Opinion  evidence  as  tQ»  see  Evidence,  VII. 


CAPIAS. 

Effect   of   delay   in    issuing,    see   Cbiminai, 

Law,  229. 
Issue  of,  to  take  accused  into  custody  after 

expiration  of  term,  see  Criminal  Law, 

284. 


CAPITA. 

Distribution    by,    under    will,    see    Wills, 
306-308. 


CAPITAL. 


Of  corporation,  see  Corpobations,  V. 
As  to  county  seat,  see  Counties,  1. 
As    distinguished    from    income,    see    Life 
Tenants,  II.  b. 


CAPITAL    OFFENSE. 

SuflSciency  of  briefs  on  appeal  in  prosecu- 
tion for,  see  Appeal  and  Error,  289. 

Right  to  bail  of  person  charged  with,  see 
Bail  and  Recognizance,  14-16. 

Waiver  of  rights  by  one  accused  of,  see 
Criminal  Law,  127,  128. 

Necessity  of  indictment  for,  see  Criminal 
Law,  137. 

Plea  of  guilty  on  prosecution  for,  see 
Criminal  Law,  149-152. 

In  general,  see  Homicide. 

Digest  1-52  L.R.A.(N.S.) 


CAPITAL  PUNISHMENT. 

Right  of  governor  to  set  aside  law  impos- 
ing, see  Criminal  Law,  248. 

Stay  of  execution  of  death  sentence,  see 
Criminal  Law,  288. 

Execution  for  crime  as  risk  insured  against, 
see   Insurance,   702-704. 

Scruples  against,  as  disqualifying  juror,  see 
Jury,  (52,  63. 

SuflSciency  of  title  of  statute  as  to,  see 
Statutes,  149. 


CAPITOL. 


Issue  of  bonds  to  build  state  capitol,   see 
Bonds,  110,  111. 


CAPTAIN. 


Of  revenue  cutter,  judicial  powers  of,  see 
Salvage,  6. 


»•» 


CAPTION. 

Of  indictment,  see  Indictment,  etc.,  27. 
»  •  » 

CARBIDE. 

Injury  to  child  by  explosion  of,  see  Negli- 
gence, 151. 

♦-•-• 


CARBOLIC  ACID. 

As  an  "instrument"  used  to  disfigure  an- 
other within  meaning  of  statute,  see 
Mayhem. 


CARBONATED    BEVERAGE. 

Placing  labels  on  bottles  of,  as  dangerous 
employment,  see  Master  and  Servant, 
151. 

Negligence  in  bottling  of,  see  Trial,  125, 
126. 


CARBON  COPIES. 


Admissibility    in    evidence,    see    Evidence, 
720. 


CARCASS. 


Of  animal,  ordinance  as  to  disposal  of,  sea 
Constitutional  Law,  195,  525. 

Damages  for  failure  to  remove  from  rail- 
road track  carcasses  of  animals  killed 
by  train,  see  Damagbis,  40. 

Pollution  of  water  by  burying  near  spring, 
see  Trial,   642; 'Waters,  209. 


CAR  DESPATCHER— CARRIERS. 
CAR  DESPATCHER.  CARRIERS. 


34$ 


As   fellow   servant,   see  Master   and   Sebv- 

ANT,   852. 


CARD    PLAYING. 


Larceny  by  obtaining  money  by  fraud  in 
card  game,  see  Labceny,  26,  27. 

Forbidding  playing  in  place  of  business,  see 
Municipal  Corporations,  204. 

As  to  gambling,  sec  Gaming. 


CARD   TABLES. 


Prohibiting  keeping  for  sale  in  place  of 
business,  see  Municipal  Corporations, 
204. 


CARE. 

Presumption  of,  see  Evidence,  II.  li. 
Evidence  of  character  or  reputation  as  to, 

see  Evidence,  1577-1580. 
Sufficiency  of  proof  of,  see  Evidence,  XII. 

d. 


CAR  INSPECTORS. 

Admissibility,  in  evidence,  of  reports  of  car 
inspectors  as  to  defective  condition  of 
coupler,  see  Evidence,  826. 

^  «  » 


CARMACK   AMENDMENT. 

See  Carbiers,  718,  932,  936,  937,  979,  980; 
Commerce,  85-87;  Constitutional 
Law,  447,  460;  Statutes,  238. 


CARNAL    INTERCOURSE. 

See  Adultery;    Pbostitution ;   Rape;    Se- 
duction. 


CAR   REPAIRER. 


Contributory  negligence  of,  see  Master  and 
Servant,  710,  711. 


CARRIAGES. 


Discrimination  of  carrier  between,  see  Cab- 

RIERS,   1007-1013. 
Digest   1-52  L.R.A.(N.S.) 


I.  Who    are    common    carriers;    rela- 
tion to  public,   1—12. 
II.  Carriers   of  passengers   and   other 
persons,   13—740. 

a.  In  general,   13—44:, 

b.  Rules  and  regulations,  45—52, 

c.  Who  are  passengers,   53—121, 

1,  Employee  of  carrier,    53— 

59. 

2,  Other  persons,    60—87, 

3,  When  relation  commences, 

88-101. 
.  1  -  4.  Term,ination    of    relation, 

102-121, 

d.  Abuse     of    passenger;    insult, 

122-126, 

e.  Assault    on    passenger,     127— 

149. 

f.  Arrest;      false     imprisonment, 

150-162, 

g.  Measure     of     care     required; 

negligence  generally, 

163-381, 

1.  Of  carrier,   163—304. 

a.  In   general,    163—270. 

b.  As  to  trachs,  roadbed, 

etc.,   271-277. 

c.  As      to      vehicle,       or 

place  of  riding  gen- 
erally,  278-304. 

2.  Contributory  negligence  of 

passenger ;  assutnp- 
tion  of  risTc,  305— 
381. 

a.  In   general,    305—353. 

b.  Riding     on     platform, 

steps,  or  footboard, 
354-379. 

c.  Riding   in   wrong   car, 

380,   381. 
h.  Ejection  of  passenger  or  tres- 
passer, 382—447. 

1.  In  general,   382—402. 

2.  Grounds   for,    403—445, 

a.  In        general;         mis- 

behavior; disease, 
403-406, 

b.  Nonpay^nent    of    fare, 

or  defective  ticket, 
407-445, 

3.  At  what  place,    446,    447. 
i.  Leaving    at    destination,    stop- 
over,   448— 458a, 

j.  Disabled    or   incompetent   pas- 
sengers,  459—475, 

1,  Duty  or  negligence  of  car- 

rier,   459—474, 

a.  In   general,    459—469, 

b.  Duty  to  receive,   470— 

474, 

2,  Contributory      negligence, 

475, 
Te.  Getting  on  or  off,  476—575.   ■- 

1.  Duty  or  negligence  of  car- 

rier,  476—543, 

2,  Contributory      negligence, 

544-575. 
a.  In    getting    on,     544— 
551. 


346 


CARRIERS. 


//.  k,  2 — continued. 

b.  Jn    getting    off,     552— 
575. 
I.  Stations,  approaches,  and  plat- 
forms,   576-622. 

1.  In   general,    576-612. 

a.  Carrier's  duty  or  neg- 

ligence,  576—606. 

b.  Contributory         negli- 

gence,   607—612. 

2.  Platforms  generally,  613— 

617. 
8.  Duty    to    keep    open    and 
light,    61S-622. 
I  TO.  TicJcets;       conditions;       fare, 

623-670. 

1.  In  general,    623—631. 

2.  Excursion    or    round    trip 
,  .      .  .  tickets,  632—636. 

8.  Passes,    637—643. 
,Vr^i«t\«>Hl  tf.  Extra  fare,   644. 

6.  On  street  cars,    645—660. 
\hft^»t^'%t  6.  Limitation      of      liahility, 
661-670. 
n.  Blackboard  announcements  as 

to  trains. 
o.  Baggage    or   property    of   pas- 
,i.-,..,  senger,    671—732. 

'  1.  In  general,  671—698. 

iM  2.  What     is     baggage,     699— 

709. 
8.  Taking    parcels    on    train 
\  or  street  car,   710. 

4:.  Liability    of    sleeping    car 

company,    711— 7 IS. 
S.  Limitation       of      liability, 
719-732. 
p.  Corpse,    732a. 
q.  Connecting  carriers,  733—740. 
III.  Can'iers  of  freight,  741—982. 

a.  In  general;  powers  of  agents, 
741-767. 
-><«»•<>    6.  Duty  to  receive  and  transport, 
768-787. 

c.  Loss    of,    or    injury    to,    prop- 

erty,   788-820. 

d.  Delivery     by     carrier;     delay, 
,v.       821-873. 

,  1.  In  general;  refusal  to  de- 

,^-\\.\\     •  >  liver,   821—835. 

,•  2.  Notice    of    arrival;    term- 

ination of  liability,  836— 
859. 

3.  Misdelivery;  xorongful  de- 

livery,  860. 
-anft  4.  Time;  delay,  86 1— 873. 

e.  Liability   and   lien   for   freight 
-ti>«)  charges;   rates,   874—885. 

f.  Carrying  live  stock  and   other 

animals,  886—914. 

g.  Stipulations     as     to     liability, 

915-955. 

1.  In  general,   915—924. 

2.  As     to     negligence,     925— 

931. 

3.  As  to  amount,  932—946. 

4.  As  to  time  of  giving  notice 

or       commencing       suit, 
947-955. 

5.  Excepted  perils. 

h.  Contract    or    duty    to    furnish 
cars,  956—964. 
Digest  1-52  i:..R.A.(N.S.) 


III. — continued. 

i.  Demurrage  on  cars,  965,  966. 
j.  Connecting  carriers,  967—982. 

1.  In  general,    967—981. 

2.  Selection  of  route,   982. 
k.  Criminal  transportation. 

IV.  Govetmmental  control;  rates;  dis- 
crimination ;  duty  as  to  stop- 
jiing  places;  siding  facilities, 
983-1089. 

a.  In  general,   983—1001. 

b.  Compulsory     connection     and 

interchange  of  business;  dis- 
crimination between  carriers, 
hackmen,  etc. ;  through  rates, 
1002-1015. 

c.  Rates;  discrimination  between 

passengers  or  shippers ; 
rebates;  passes,  1016— 
1076. 

1.  In  general,   1016—1027. 

2.  Poxver   to   fix  rates;   mile- 

age  tickets,    1028-1032. 
8.  Reasonableness    of    rates, 

1033-1046. 
4.  Discrimination;      rebates; 

passes,    1047—1076. 

d.  Duty     as     to     depots,     agents, 

and  facilities;  stopping 
trains;  duty  to  run  trains, 
1077-1089. 

Variance  in  action  against,  see  Appeal  and 
Ekrob,  788. 

Injury  by  automobile  to  passenger  alight- 
ing from  street  car,  see  Automobile, 
32-37,  65,  66. 

As  to  bills  of  lading,  see  Bills  of  Lading. 

Accumulation  and  division  by  bridge  com- 
pany, among  portion  of  railroads  using 
it,  of  fund  resulting  from  excessive 
tolls,  see  Bridge  Company. 

Attaching  cars  of  foreign  railroad  company, 
see  Commerce,  21-24;  Levt  and  Seiz- 
ure, ]5,  16,  29. 

Ordinance  limiting  speed  of  trains  on  in- 
terstate railway  within  corporate 
limits,  see  Commerce,  63. 

Transporting  liquor  from  depot  to  buyer's 
residence  as  interstate  commerce,  see 
Commerce,   121. 

Interstate  business  of,  see  Commerce,  II. 

Contract  giving  exclusive  right  to  use  cars 
for  advertising,  see  Conflict  of  Laws, 
11. 

Conflict  of  laws  as  to  contracts  of,  see  Con- 
flict OF  Laws,  I.  b,  4. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  II.  a,  3. 

Police  power  as  to,  see  Constitutional 
Law,  683-686. 

Forbidding  drumming  or  soliciting  business 
at  railroad  stations,  see  Constitution- 
al Law,  688,  785;  Municipal  Corpo- 
rations, 181,  185. 

Regulating  time  of  payment  of  employees, 
see  Constitutional  Law,  314,  487, 
490. 

Regulating  hours  of  labor  of  railroad  em- 
ployees, see  Constitutional  Law, 
720;  Evidence,  37. 


CARRIERS,  I. 


347 


JMatters  as  to  servants  of  carrier  generally, 
see  Mas'ikr  and  Servant. 

Contract  to  establish  station  and  stop 
trains,  see  Coxtkacts,  368,  507-509, 
628;   Parties,  42;   rLEAiJiNc,  195,  654. 

Agreement  to  maintain  spur  track  and 
depot  at  certain  place,  see  Contracts, 
369;  Injunction,  59;  Specific  Pkr- 
formance,   65,   06,   68. 

Agreement  to  maintain  siding  for  private 
use,  see  Contracts,  369,  510;  Cove- 
nants and  Conditions,  131. 

Right  to  maintain  advertisements  on  ex- 
terior of  stages  or  carriages,  see  Corpo- 
rations, 34. 

Contract  by  superintendent  of  dining  car 
department,  see  Corporations,  149. 

Power  of  railroad  company  to  own  and 
operate  public  warehouse,  see  Corpo- 
rations, 52. 

Agreement  to  furnish  medical  attention  to 
injured  person  or  to  perform  medical 
or  surgical  services,  see  Corporations, 
66,  67. 

Statute  forbidding  drinking  intoxicating 
liquors  on  trains,  see  Courts,  215;  In- 
junction, 171. 

Conveyance  to  railroad  in  consideration  of 
agreement  to  erect  and  maintain  depot 
on  land  conveyed,  see  Covenants  and 
Conditions,  8. 

Covenant  by  railroad  to  leave  cars  at  spur 
track,  see  Covenants  and  Conditions, 
129. 

Damages  in  action  against,  see  Damages, 
II.  b;    III.  c,  d. 

Elevators  as  carriers,  see  Elevators. 

Exercise  of  eminent  domain  to  secure  rail- 
road siding  to  private  plant,  see  Emi- 
nent Domain,  101,  102. 

Escheat  of  property  of,  see  Escheiat,   8. 

Judicial  notice  as  to,  see  Evidence,  32-38, 
52,  53. 

Liability  as  warehouseman,  see  Evidence, 
452. 

Presumption  and  burden  of  proof  as  to  con- 
tracts of,  see  Evidence,  525-529. 

Admissibility  of  declarations  by  carrier's 
agent,  see  Evidence,   1428-1432. 

Sufficiency  of  proof  of  negligence  of,  see 
Evidence,  2145-2154. 

Proof  that  agent  in  charge  of  railroad  sta- 
tion was  also  agent  of  telegraph  com- 
pany, see  Evidence,  2249, 

Admissibility  of  records  and  papers  of,  see 
Evidence,  IV.  1. 

Liability  for  false  imprisonment  of  one 
other  than  passenger,  see  False  Im- 
prisonment, 11,  21,  24,  25. 

Presentation  to,  of  forged  order  for  intoxi- 
cating liquors,  see  Forgery,  16. 

Garnishment  of  nonresident  general  agents 
of  nonresident  steamship  line  for  debt 
of  carrier,  see  Garnishment,  15. 

Covenant  to  run  trains  to  and  from  track 
of  covenantee,  see  Injunction,  24. 

Platform  at  depot  as  public  highway  within 
meaning  of  accident  insurance  policy, 
see  Insurance,  719. 

Injury  to  insured  person  while  riding  in 
caboose  attached  to  freight  train,  see 
Insurance,  722. 

Digest  1-52  L.R.A.(N.S.) 


Conclusiveness  of  decree  in  chancery  against 
lessor  and  lessee  railroad,  as  to  lia- 
bility of  lessor  in  subsequent  action  at 
law,  see  Judgment,  86. 

License  of,  see  LiCENSi:,  57-60. 

Mandamus  to,  see  Mandamus,  74-77,  124, 
125. 

Injury  to  employee,  see  Master  and  Serv- 
ant. 

Injury  to  express  messenger  by  defective 
car,  see  Master  and  Servant,  310. 

Injury  to  employee  on  circus  train  through 
negligence  of  train  operatives,  see 
Master  and  Servant,  479. 

Liability  for  act  of  station  agent  in  in- 
stituting wrongful  search,  see  Master 
AND  Servant,   949. 

Illegal  combination  of,  see  Monopoly  and 
Combinations,  II.  d. 

Destruction  by  mob  of  railroad  car,  see 
Municipal  Corporations,  352,  471; 
Trial,  635. 

Injury  to  children  near  railroad  track  by 
fall  of  material  from  car,  see  Negli- 
gence, 137. 

Imputing  negligence  of  carrier  to  passenger, 
see  Negligence,  259. 

Right  of  steamboat  line  to  maintain  action 
for  damages  resulting  from  construc- 
tion of  bridge,  see  Nuisances,  111. 

Pleading  as  to  contracts  of,  see  Pleading, 
263-268. 

Proximate  cause  of  loss  or  injury  by,  see 
Proximate  Cause,  III. 

Railroad  and  other  piiblic  service  commis- 
sions, see  Public  Service  Commis- 
sions. 

Governmental  control  of  issue  of  securities, 
see  Public  Service  Commissions,  7-9. 

Requiring  railroad  to  operate  warehouse, 
see  Railroads,  26,  27. 

Matters  peculiar  to  ships,  see  Shipping. 

Repeal  of  statute  as  to  liability  of  carrier 
for  death  of  Pullman  car  conductor,  see 
Statutes,  368. 

Duty  of  motorman  in  approaching  car  dis- 
charging passengers  at  street  crossing, 
see  Street  Railways,  26,  27,  72,  93. 

As  to  telegraph  companies,  see  Telegraphs, 
2, 

I.  Who  are  common  carriers;  relation 
to  public. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Owner  of  elevator  as,  see  Elevators,  3,  5, 

11,  17. 
Question  for  jurv  as  to,  see  Trial,  233. 
See  also  infra,  783,  973. 

1.  Acceptance  or  exercise  by  a  railroad 
corporation  of  the  rights  of  a  common  car- 
rier, granted  to  it  by  the  state,  imposes 
upon  it  the  duty  of  providing  and  operat- 
ing all  facilities  necessary  to  meet  ade- 
quately all  reasonable  requirements,  wheth- 
er the  grants  be  mandatory  or  merely  per- 
missive. State  ex  rel.  Ellis  v.  Atlantic 
Coast  Line  R.  Co.  13:  320,  44  So.  213,  53 
Fla.  650. 


348 


CARRIERS,  II.  a. 


2.  While  a  discretion  is  allowed  a  com- 
mon-carrier corporation  in  the  means  and 
manner  of  the  discharge  of  the  duties  it 
owes  to  the  public,  such  discretion  must  be 
exercised  in  good  faith  and  with  reasonable 
regard  for  the  requirements  of  the  public 
service.  State  ex  rel.  Ellis  v.  Atlantic  Coast 
Line  R.  Co.  13:  320,  44  So.  213,  53  Fla.  650. 

3.  A  failure  to  exercise  the  care  and 
diligence  due  from  railroad  companies  as 
common  carriers  is  negligence,  without  any 
legal  distinction  as  being  gross  or  ordinary. 
Summerlin  v.  Seaboard  Air  Line  R.  Co.  19: 
191,  47   So.  557,  56  Fla.  687. 

4.  The  ownership  of  the  means  of  trans- 
portation is  not  necessary  to  constitute  one 
a  common  carrier.  J.  H.  Cownie  Glove  Co. 
V.  Merchants'  Despatch  Transp.  Co.  4:  1060, 
106  N.  W.  749,  130  Iowa,  327. 

5.  The  mere  fact  that  one  holding  him- 
self out  as  a  common  carrier  discriminates 
between  patrons,  accepting  some  and  reject- 
ing others,  does  not  absolve  him  from  lia- 
bility as  a  common  carrier  for  the  loss  of 
goods  which  he  undertakes  to  transport. 
Lloyd  V.  Haugh  &  K.  Storage  &  T.  Co.  21: 
188,  72  Atl.  516,  223  Pa.  148.       (Annotated) 

6.  A  common  carrier  of  goods  which 
transports  live  stock  is,  as  to  the  latter 
property,  also  a  common  carrier.  Central 
R.  Co.  V.  Hall,  4:  898,  52  S.  E.  679,  124  Ga. 
322. 

7.  A  railroad  company,  by  receiving  live 
stock  and  undertaking  to  transport  the 
same  for  hire,  assumes  the  relation  of  a 
common  carrier,  and  becomes  chargeable 
with  the  duties  and  obligations  incident  to 
that  relation,  except  so  far  as  such  duties 
and  responsibilities  may  legally  be  modified 
by  special  contract.  Summerlin  v.  Sea- 
board Air  Line  R.  Co.  19:  191,  47  So.  557, 
56  Fla.  687. 

8.  A  railroad  company  does  not  lose  its 
character  of  common  carrier  by  a  special 
contract  to  transport  over  its  road  the  mes- 
sengers and  packages  of  a  particular  express 
company,  although  it  could  not  have  been 
compelled  to  undertake  such  transportation, 
since  a  special  arrangement  with  respect  to 
a  particular  class  of  business  does  not  de- 
stroy the  general  character  of  the  company. 
Davis  V.  Chesapeake  &  O.  R.  Co.  5:  458,  92 
S.  W.  339,  122  Ky.  528.  (Annotated) 

9.  One  who  undertakes  to  transport 
property  from  its  location  in  one  city  to 
another  city,  for  a  through  rate  less  than 
the  published  rates  of  the  railroad  com- 
pany for  broken  lots,  which  it  is  enabled 
to  do  by  accumulating  property  for  the 
given  destination  until  a  car  can  be  filled, 
which  is  billed  to  its  own  agent  there,  as- 
sumes, while  holding  the  property  for  ac- 
cumulation, the  liability  of  a  common  car- 
rier. Kettenhofen  v.  Globe  Transfer  & 
Storage  Co.  42:  902,  127  Pac.  295,  70  Wash. 
645.  (Annotated) 
Draymen  or  truckmen. 

10.  Those  engaged  in  the  business  -of 
draymen  or  truckmen,  for  transportation  of 
goods  and  merchandise  within  a  city,  are 
Digest  1-52  L.R.A.(N.S.) 


common  carriers.     Lawson  v.  Connolly,  45: 
1 152,  141  N.  W.  023,  175  Mich.  375. 
Owner  of  excursion  boat. 

11.  The  owner  of  an  excursion  boat  who 
contracts  to  carry  a  society  on  an  excursion 
for  a  lump  sum,  taking  only  those  who  had 
tickets  purchased  from  the  society,  owes  a 
ticket  holder  the  duty  of  a  common  carrier, 
and  his  liability  is  not  limited  to  that  of 
a  mere  bailee.  McBride  v.  McNally,  5a: 
259,    89    Atl.    1131,    243    Pa.    206. 

( Annotated ) 
Ferry  company. 

12.  A  ferry  company  which  maintains  a 
pleasure  resort  on  its  own  property  for  a 
particular  class  of  persons  whose  patronage 
it  invites  and  for  whose  accommodation  it 
runs  a  boat  devoted  exclusively  to  their 
transportation  is  not,  so  far  as  that  enter- 
prise is  concerned,  a  common  carrier;  and 
it  may  exclude  from  the  boat  persons  who 
will  be  undesirable  to  its  patrons,  or  de- 
stroy the  success  of  its  undertaking.  Meis- 
ner  v.  Detroit,  B.  I.  &  W.  Ferry  Co.  19:  872, 
118  N.  W.  14,  154  Mich.  545. 

II.  Carriers    of   passengers    and    other 
persons. 

a.  In  general. 


(See  also  Carriers,  II.  a,  1,  in  Digest  L.R.A. 

1-10.) 

Who  are  common  carriers,  see  supra,  I. 

Nature  of  action  for  damages  for  breach  of 
carrier's  duty,  see  Action  ob  Suit,  74- 
78. 

Right  of  carrier  sued  jointly  with  con- 
ductor who  injured  passenger  to  com- 
plain of  exoneration  of  conductor,  see 
Appeal  and  Errob,  525. 

Duty  to  restore  passage  money  on  rescind- 
ing contract,  see  Conteacts,  735. 

Damages  for  failure  to  furnish  drawing 
room  to  passenger,  see  Damages,  725. 

Punitive  damages  for  failure  in  duty  to  pas- 
senger, see  Damages,  II.  b. 

Measure  of  damages  generally  for  breach 
of  duty  to  passenger,  see  Damages, 
III.  c,  1. 

Recovery  for  mental  anguish,  see  Damages, 
III.  o,  2,  c. 

Measure  of  damages  for  delay  in  transpor- 
tation, see  Damages,  257,  662. 

Effect  of  dismissal  as  to  chair  car  com- 
pany sued  jointly  with  carrier,  see  Dis- 
missal AND  Discontinuance,  16. 

Admissibility  of  evidence  on  question  of 
liability  for  breach  of  transportation 
contract,  see  Evidence,  855. 

Proving  contract  between  carrier  and  pas- 
senger by  parol  evidence,  see  Evidence, 
923,  924. 

Requiring  Indians  going  to  meet  relatives 
to  keep  away  from  entrance  to  cars,  see 
Indians,  2,  3. 

Judgment  in  favor  of  sleeping  car  company 
as  bar  to  action  against  railroad  com- 
pany, see  Judgment,  211. 


CARRIERS,  II.  a. 


349 


Offense  committed  by  passenger  who  re- 
mains on  train  after  station  to  which 
fare  paid  has  been  passed,  see  Ma- 
licious Mischief,  5. 

Liability  of  carrier  for  malpractice  of  phy- 
sician furnished  to  injured  passenger, 
see  Physicians  and  Surgeons,  51. 

Running  of  trains  on  Sunday,  see  Sunday, 
17. 

Refusal  of  telegraph  company  to  transmit 
message  informing  superintendent  of 
railroad  that  there  is  no  fire  in  sta- 
tion, see  Telegrai'hs,  10. 

Necessity  and  propriety  of  instructions  in 
action  on  special  contracts,  see  Trial, 
854,  870. 

Venue  of  action,  see  Venxxe,  12,  13. 

13.  The  officers  of  a  vessel,  who  have 
permitted  a  person  who  is  unprepared  for  a 
long  voyage,  and  will  be  subjected  to  con- 
siderable injury  if  compelled  to  take  one,  to 
come  on  board  to  visit  passengers,  while  the 
vessel  is  at  a  stopping  place,  are  bound,  if 
practicable,  to  return  to  the  wharf  and  per- 
mit him  to  land,  notwithstanding  he  is 
negligent  in  failing  to  respond  to  signals 
to  leave,  and  does  not  present  himself  for 
that  purpose  until  the  vessel  has  swung 
away  from  the  wharf.  Pacific  Coast  Co. 
V.  Jenkins,  lo:  969,  150  Fed.  537,  80  C.  C.  A. 
279.  (Annotated) 

14.  To  bind  a  railroad  company  by  a 
custom  of  conductors  to  carry  persons  on 
their  trains  in  consideration  of  the  rendition 
of  services,  it  must  be  shown  to  have  been 
known  by  the  officers  who  conduct  the  af- 
fairs of  the  company,  or  to  have  been  so 
general  and  long  continued  that  they  must 
be  presumed  to  have  had  notice  of  it.  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  Jones,  37:  418, 
132  S.  W.  636,  96  Ark.  558. 

15.  The  conductor  of  a  railroad  com- 
pany has  no  such  control  of  the  passengers 
in  a  sleeping  car  of  another  corporation, 
which  becomes  a  part  of  his  train  without 
any  compensation  to  the  railroad  company 
except  the  ordinary  fares  collected  from 
its  occupants  and  the  advantage  to  the 
company  of  its  being  part  of  its  train,  that 
he  can  require  a  colored  passenger  therein 
who  holds  a  sleeping  car  ticket  when  he 
enters  the  state,  to  leave  the  car  and  enter 
a  compartment  set  apart  for  colored  pas- 
sengers, and  render  the  railroad  company 
liable  to  punishment  for  his  failure  to  do 
so.  Com.  V.  Illinois.  C.  R.  Co.  32:  801,  133 
S.  W.   1158,   141   Ky.   502. 

16.  A  railroad  company  is  not  punish- 
able for  hauling  the  sleeping  car  of  another 
corporation,  which  is  not  provided  with 
compartments  for  colored  persons  and  does 
not  bear  any  indication  of  the  race  for 
which  it  is  set  apart,  or  having  no  addi- 
tional separate  sleeping  car  for  colored  pas- 
sengers, under  a  statute  providing  for  the 
punishment  of  any  railroad  company  run- 
ning or  operating  railroad  cars  or  coaches, 
which  does  not  furnish  separate  coaches 
or  cars  for  the  transportation  of  white  and 
colored  passengers,  and  have  each  respective 
coach  or  compartment  marked  with  appro- 
Dlg.sst  1-52  I..R.A.(N.S.) 


priate  words  in  plain  letters  indicating  the 
race  for  which  it  is  set  apart,  where  it 
receives  no  compensation  for  hauling  the 
car  except  the  regular  fare  for  transporta- 
tion of  persons  occupying  it  and  the  ad- 
vantage of  its  being  a  part  of  its  train. 
Com.  V.  Illinois  C.  R.  Co.  32:  801,  133  S. 
W.    1158,    141    Ky.    502.  (Annotated) 

Fatting    w^Iiite    person    in    coacli    for 

negroes. 
Punitive  damages  for,  see  Damages,  76,  77. 

17.  A  railroad  company  is  not  liable  in 
damages  for  compelling  a  white  person  to 
enter  a  coach  for  colored  people  merely  be- 
cause, in  the  exercise  of  ordinary  care,  it 
mistook  the  race  to  which  he  belonged. 
Southern  R.  Co.  v.  Thurman,  2:  1108,  90  S. 
W.  240,  121  Ky.  716.  (Annotated) 

18.  If  a  brakeman,  in  requiring  a  pas- 
senger to  leave  a  car  for  white  passengers, 
and  enter  the  car  for  colored  passengers, 
does  not  in  good  faith  believe,  or,  in  the  ex- 
ercise of  reasonable  care,  does  not  have  a 
right  to  believe,  that  he  is  a  person  of  color; 
or  if  he  is  insulting, — the  passenger  has  a 
right  to  recover  damages  from  the  railroad 
company,  otherwise  not.  Southern  R.  Co. 
V.  Thurman,  2:  1108,  90  S.  W.  240,  121  Ky. 
716. 

19.  A  railroad  company  is  liable  for  the 
mistake  of  its  conductor  in  assigning  pas- 
sengers to  the  coaches  provided  for  wliite 
and  colored  passengers  respectively.  Louis- 
ville &  N.  R.  Co.  V.  Ritchel,  41:958,  147 
S.  W.  411,  148  Ky.  701.  (Annotated) 

20.  No  recovery  can  be  had  for  requiring 
a  white  woman  to  ride  in  a  coach  set  apart 
for  colored  passengers,  if  the  conductor 
acted  in  good  faith  believing,  and  in  the 
exercise  of  reasonable  care  having  the  right 
to  believe,  that  she  was  colored,  and  was 
not  insulting  to  her.  Louisville  &  N.  R.  Co. 
v.  Ritchel,  41:  958,  147  S.  W.  411,  148  Ky. 
701. 

21.  A  street  car  company  is  liable  in 
damages  for  a  mistake  of,  or  abuse  of  dis- 
cretion by,  its  servants  in  complying  with 
the  provisions  of  a  statute  requiring  the  as- 
signment of  white  and  colored  passengers  to- 
different  compartments.  May  v.  Shreveport 
Traction  Co.  32:206,  53  So.  671,  127  La. 
420. 

Duty  as  to  sleeping  accommodations. 

Constitutionality  of  statute  as  to,  see 
Constitutional  Law,  448. 

Damages  for  breach  of  contract  by  sleeping 
car  company,  see  Damages,  253,  264, 
277.    . 

Sufficiency  of  pleading  in  action  for  cut- 
ting out  sleeping  car,  see  Pleading, 
267. 

See  also  infra,  44. 

22.  It  is  the  duty  of  a  steamship  com- 
pany running  a  night  boat  to  supply  berths 
to  unobjectionable  passengers  in  the  order 
of  application.  Patterson  v.  Old  Dominion 
S.  S.  Co.  5:  1012,  53  S.  E.  224,  140  N.  C.  412. 

(Annotated) 

23.  One  purchasing  a  ticket  for  passage 
on  a  night  steamboat  should,  if  he  asks  for 
information,  be  so  informed  if  no  berths  are 


S50 


CARRIERS,  II.  a. 


available.     Pattenson  v.  Old  Dominion  S.  S. 
Co.  5:  1012,  53  S.  E.  224,  140  N.  C.  412. 

24.  A  sleeping  car  company  is  not  liable 
in  damages  for  breach  of  its  contract  to 
furnish  a  passenger  with  sleeping-car  accom- 
modations to  destination  by  reason  of  the 
act  of  the  railroad  company  in  detouring 
the  car  at  an  intermediate  station  so  that 
the  passenger  had  to  continue  her  journey 
in  an  ordinary  coach, — at  least  not  for  more 
than  the  difference  in  price  of  a  ticket  to 
the  respective  points.  Louisville  &  N.  R. 
Co.  V.  Fisher,  11:  926,  155  Fed.  68,  83  C.  C. 
A.  584. 

Po\v^ers  of  agents. 
As  to  freight,  see  infra,  752-755. 
Error  in   reception  of  evidence  as  to  cus- 
tom of  agents,  see  Appeal  and  Ebbob, 

1113. 
Power  of  agent  to  contract  for  advertising, 

see  CoBPOBATiONS,  134. 
Contract   by   superintendent  of   dining  car 

department,  see  Cobpoeations,  149. 
Proof  of  agency  of  railroad  selling  through 

tickets  over  other  road,  see  Evidence, 

2247. 
Authority  of  claim   agents,   see  Evidence, 

183;  Masteb  and  Sebvant,  6. 
Conductor's  authority  to  employ  physician, 

see  Masteb  and  Sebvant,  9. 
See  also  infra,  425,  447,  458a,  633,  735,  736. 

25.  Those  in  charge  of  the  train  of  a  log- 
ging company  have  no  authority,  by  virtue 
of  their  employment  alone^  to  carry  passen- 
gers on  the  train.  Harvey  v.  Deep  River 
Logging  Co.  12:  131,  90  Pac.  501,  49  Or.  583. 

26.  The  agent  who  sells  a  ticket  which, 
by  its  terms,  must  be  used  on  the  day  of 
sale  or  be  void,  has  no  implied  authority  to 
bind  the  carrier  by  agreeing,  after  it  has 
expired,  that  it  may  be  used  on  a  subse- 
quent day.  Pennington  v.  Illinois  C.  R.  Co. 
37:  983,  97  N.  E.  289,  252  111.  584. 

27.  That  the  ticket  agent  of  a  railroad 
company  who  sold  a  ticket  for  through 
transportation  over  several  lines  was  also 
agent  for  an  immigrant  association  of  which 
one  of  the  roads  is  not  a  member  is  imma- 
terial upon  the  question  of  its  liability  upon 
the  ticket,  if  the  railroad  company  whose 
agent  sold  the  ticket  was  to  any  extent  its 
agent  in  so  doing.  Brian  v.  Oregon  Short 
Line  R.  Co.  25:  459,  105  Pac.  489,  40  Mont. 
109. 

28.  A  city  passenger  and  ticket  agent 
of  a  railroad  company  has  implied  author- 
ity to  guarantee  connections  by  one  of  its 
regular  trains,  which  is  necessary  to  permit 
an  intending  passenger  to  reach  its  desti- 
nation at  a  specified  time.  Hayes  v.  Wa- 
bash R.  Co.  31:229,  128  N.  W.  217,  163 
Mich.    174.  (Annotated) 

29.  A  railroad  company  is  liable  for  the 
proximate  injuries  resulting  from  misdi- 
rections given  by  its  ticket  agent  when  ap- 
plied to  by  an  intending  passenger  for  in- 
formation as  to  the  best  route  by  which  to 
reach  his  destination,  and  furnishing  a  ticket 
in  aecordanc3  with  such  directions.  St. 
Louis  Southwestern  R.  Co.  v.  White,  2:  no,  j 
89  S.  W.  746,  99  Tex.  359.  (Annotated) 
Digest  1-52  Ii.R.A.(N.S.) 


30.  An  excursion  party  wishing  to  visit 
a  neighboring  town  and  return  home  on 
the  same  day  may  rely  on  the  agreement 
of  the  agent  of  the  railroad  company  in- 
trusted with  the  sale  of  tickets  at  its  sta- 
tion, that  a  returning  train  not  scheduled 
to  stop  at  their  station  will  do  so  on  the 
day  in  question,  and  in  case  they  purchase 
their  tickets  and  make  the  outward  jour- 
ney in  reliance  thereon,  they  may  hold  the 
carrier  liable  for  breach  of  the  agreement, 
if  they  had  no  knowledge  that  the  agent 
had  no  authority  to  make  the  agreement, 
and  their  tickets  do  not  contain  conditions 
in  conflict  therewith.  Louisville  &  N.  R. 
Co.  v.  Scott,  34:  206,  133  S.  W.  800,  141 
Ky.    538. 

31.  The  holder  of  a  nontransferable 
mileage  ticket  which  is  exchangeable  for 
transportation  tickets,  who  has  signed  an 
agreement  that  no  agent  has  power  to  al- 
ter, modify,  or  waive  any  conditions  or 
stipulations,  may  rely  on  the  statement  of 
a  ticket  agent  that  mileage  coupons  may 
be  exchanged  for  a  ticket  for  his  wife, 
where,  on  the  mileage  book,  is  a  statement 
that  coupons  will  be  honored  in  excliange 
for  tickets  in  accordance  with  special  tar- 
iffs and  circulars  of  instruction;  and  there- 
fore damages  may  be  recovered  for  the  re- 
fusal of  a  conductor  to  honor  a  ticket 
so  issued.  Smith  v.  Southern  R.  Co. 
34:  708,  70  S.  E.  1057,  88  S.  C.  421. 

32.  A  station  agent  of  a  carrier,  who  cus- 
tomarily receives  and  checks  baggage,  has 
no  implied  right  to  receive  and  check  the 
baggage  of  the  purchaser  of  a  mileage  ticket, 
in  opposition  to  the  written  contract  en- 
tered into  by  the  purchaser  and  the  carrier 
in  the  purchase  and  sale  of  the  ticket. 
Southern  R.  Co.  v.  Dinkins  &  D.  Hardware 
Co.  43:  806,  77  S.  E.  147,  139  Ga.  332. 

33.  The  custom  of  various  agents  of  a 
carrier  in  receiving  and  checking  baggage 
contrary  to  the  provisions  of  a  contract  be- 
tween the  carrier  and  the  purchaser  of  a 
ticket  is  insufficient  to  waive  the  contract, 
where  it  is  not  shown  that  the  custom  of 
such  sCgents  was  expressly  or  impliedly 
known  to,  and  acquiesced  in  by,  the  govern- 
ing officials  of  the  carrier.  Southern  R.  Co. 
V.  Dinkins  &  D.  Hardware  Co.  43:  806,  77  S. 
E.   147,   139  Ga.   332. 

34.  The  authority  of  a  ferry  ticket  col- 
lector to  represent  his  company  in  the  col- 
lection of  ferriage  at  its  entrance  gates  is 
limited  to  the  collection  from  each  pass- 
enger of  either  cash,  or  its  equivalent, — i.  «., 
a  ticket  valid  upon  its  face  for  ferry  pass- 
age; and  where  the  statements  of  the  pass- 
enger as  to  the  use  of  his  ticket  conflict 
with  its  face  marks,  the  collector  is  not  au- 
thorized to  either  inquire  into  or  decide  up- 
on the  truth  of  such  statements,  but  must 
be  governed  solely  by  the  intrinsic  effect  of 
the  ticket  as  expressed  on  its  face  at  the 
time  of  its  tender  for  passage.  Wilson  v. 
West  Jersey  &  S.  S.  R.  Co.  (N.  J.  Err.  k 
App.)  43:  1148,  85  Atl.  347,  83  N.  J.  L.  755. 
Route. 

Of  freight,  see  infra,  III.  j,  2. 

1  ;.."..><. a  Sic— 1  titfi^tCL 


CARRIERS,  II.  a. 


351 


Damages   for   misdirection   by   agent   as   to 

route,  see  Damages,  255. 
See  also  supra,  15,  29;  infra,  736. 

35.  A  carrier's  agent  selling  a  passage 
ticket  is  not  bound  to  volunteer  informa- 
tion unsought  with  respect  to  the  route  over 
which  it  must  be  used.  JNIcKinley  v.  Louis- 
ville &  N.  R.  Co.  28:  6ii,  127  S.  W.  483,  137 
Ky.  845. 

36.  A  ticket  agent  at  a  union  junction 
point  at  which  a  passenger  changes  cars  is 
not,  when  asked  by  him  when  a  train  leaves 
for  his  destination,  bound  to  ascertain 
which  route  his  ticket  requires  him  to  take, 
and  see  that  he  takes  the  right  train;  but 
performs  his  duty,  in  the  absence  of  any 
special  request,  by  stating  the  times  at 
which  trains  leave  over  the  several  routes 
which  reach  the  passenger's  destination. 
McKinley  v.  Louisville  &  N.  R.  Co.  28: 
611,  127  S.  W.  483,  137  Ky.  845. 

37.  A  street  railway  company  cannot  be 
held  liable  for  damages  on  account  of  its 
failure  to  operate  along  the  usual  route,  as 
indicated  by  a  sign  thereon,  a  car  which 
was  one  of  a  number  waiting  to  accommo- 
date an  unusual  concourse  of  people  and 
which  was  announced  by  the  conductor  to 
be  going  to  the  city,  the  trailer  attached  to 
which  was  boarded  by  a  passenger  who,  not 
hearing  the  announcement,  supposed  that 
he  would  be  carried  without  change  of  cars 
to  his  destination.  O'Connor  v.  Halifax 
Tramway  Co.  1  B.  R.  C.  427,  37  Can.  S. 
C.  523.  (Annotated) 
Duty    to    transport;    failure    to    stop 

train. 
Duty  to  receive  sick  or  intoxicated  person, 

see  infra,  470-474. 
Form   of   action   for   breach   of  contract  to 
transport,  see  Action  ob  Sxnx,  78;  Ap- 
peal AND  Ebbor,  1039. 
Separate   appeals    where    two    actions   are 
tried  together,  see  Appeal  and  Ebbor, 
123. 
Damages  for  failure  to  transport,  see  Dam- 
ages, 259-261,  664. 
Evidence  in  justification  of  carrier's  refusal 

of  passenger,  see  Evidence,  1647. 
Evidence  as  to  breech  of  contract  to  trans- 
port, see  Evidence,  1951. 
Demurrer  to  complaint  for  failure  to  stop 
train   at  flag    station,    see    Pleading, 
601,  611,  631. 
Failure  to  stop  as  proximate  cause  of  in- 
jury, see  Pboximate  Cause,  80. 
Directing  verdict  for  carrier  in  action  for 

refusal  to  transport,  see  Trial,  742. 
See  also  infra,  183,  405. 

37a.  A  railroad  company  is  bound  to 
stop  its  passenger  trains  in  response  to 
proper  signals  at  a  flag  station  at  which  it 
is  in  the  habit  of  stopping  trains  of  that 
character.  Southern  R.  Co.  v.  Wallis. 
30:  401,  66  S.  E.  370,  133  Ga.  553. 

37b.  In  the  absence  of  a  statute  prohib- 
iting a  carrier  from  running  a  passenger 
train  on  Sunday,  or  proiiibiting  it  from 
entering  into  contracts  of  carriage  on  that 
day,  a  railroad  company  cannot  excuse  its 
failure  to  stop  its  passenger  trains  in  re- 
sponse to  proper  signals  at  a  flag  station 
Digest  1-52  L.R.A.(N.S.) 


at  which  it  is  in  the  habit  of  stopping 
trains  of  the  kind  signaled,  on  the  ground 
that  it  is  under  no  duty  to  stop  its  pas- 
senger trains  on  Sunday  at  any  particular 
station  to  receive  passengers,  nor  to  enter 
into  a  contract  of  carriage  on  Sunday. 
Southern  R.  Co.  v.  Wallis,  30:  401,  66  S.  E. 
370,   133  Ga.   553.  (Annotated) 

37c.  One  for  whom  a  train  fails  to  stop 
on  signal,  according  to  schedule,  may  re- 
cover the  actual  damages  thereby  caused  by 
the  railroad  company,  although  he  sues  in 
tort,  and  those  in  charge  of  the  train  failed 
to  see  his  signals  through  mere  neglect  in 
not  keeping  a  proper  lookout.  Williams  v. 
Carolina  &  N.  W.  R.  Co.  12:  191,  57  S.  E. 
216,  144  N.  C.  498. 

38.  That  a  steamboat  company  which 
holds  itself  out  as  a  carrier  of  passengers 
and  freight  is  running  a  special  excursion 
doefi  not  entitle  it  to  refuse  to  carry  anyone 
who  presents  himself  for  passage.  Reasor  v. 
Paducah  &  I.  Ferry  Co.  43:  820,  153  S.  W. 
222,  152  Ky.  220. 

39.  Failure  of  an  intending  passenger 
to  comply  with  the  directions  of  a  noti- 
fication blank,  to  give  the  company  notice 
of  the  date  of  his  intended  sailing  a  cer- 
tain number  of  days  beforehand,  does  not 
absolve  the  company  from  liability  for  re- 
fusing to  accept  him  as  a  passenger  when 
he  attempts  to  embark,  where  the  purpose 
of  the  notice  as  stated  in  the  blank  is  to 
secure  reservation  of  bertli.  Zabron  v. 
Cunard  S.  S.  Co.  34:  751,  131  N.  W.  18,  151 
Iowa,  345. 

40.  That  one  presenting  himself  for  pas- 
sage on  the  boat  of  a  common  carrier  had, 
on  a  previous  occasion,  been  guilty  of  mis- 
conduct on  the  boat,  in  being  drunk  and 
disorderly,  does  not  justify  his  exclusion 
from  the  boat  if  at  the  time  he  presents  him- 
self he  is  sober,  and  is  conducting  him- 
self in  a  decent  and  orderly  manner.  Reasor 
V.  Paducah  &  I.  Ferry  Co.  43:  820,  153  S. 
W.  222,  152  Ky.  220.  (Annotated) 

41.  Neither  the  owner  of  an  amusement 
park,  nor  special  groups  of  persons  desir- 
ing to  patronize  it,  can  compel  a  railroad 
company  to  furnish  special  trains  for  the 
use  of  such  persons,  although  special  trains 
are  furnished  for  persons  desiring  to  pat- 
ronize another  amusement  park  in  the  same 
vicinity.  Atchison,  T.  &  S.  F.  R  Co.  v. 
Tiedt,  40:  848,  196  Fed.  348,  116  C.  C.  A. 
168. 

42.  The  mere  fact  that,  at  the  instance  of 
a  railroad  company,  a  person  fitted  up  an 
amusement  park,  will  not  require  the 
court  to  compel  the  railroad  company  to 
furnish  special  trains  to  convey  patrons  to 
the  park.  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Tiedt,  40:  848,  196  Fed.  348,  116  C.  C.  A.  168. 

43.  A  custom  to  furnish  special  trains  to 
transport  patrons  to  an  amusement  park 
under  contract  will  not  impose  the  duty 
upon  the  railroad  company  to  furnish  simi- 
lar servic^  without  contract.  Atchison,  T. 
&  S.  F.  R.  Co.  V.  Tiedt,  40:  848,  196  Fed. 
348,  116  C.  C.  A.  168. 


352 


CARRIERS,  II.  b,  c,  1. 


Contract  to  transport  in  first  class 
car. 

44.  A  railroad  company  does  not  break 
its  contract  to  carry  a  passenger  to  a  cer- 
tain point  in  a  first-class  car  by  requiring 
her,  about  two  hours  before  her  destination 
is  reached,  because  of  a  wreck  on  the  road, 
to  change  from  the  sleeper  in  which  she 
started  to  a  day  coach  which  is  going  to 
her  destination,  while,  for  the  accommoda- 
tion of  through  passengers,  it  detours  the 
sleeper  to  avoid  the  blockade,  where  the 
railroad  company  did  not  contract  to  carry 
her  in  a  sleeper.  Louisville  &  N.  R.  Co. 
V.  Fisher,  ii:  926,  155  Fed,  68,  83  C.  C.  A. 
584. 

b.  Rules   and   regulations. 

(See  also  Carriers,  II.  a,  2,  o,  in  Digest 
L.R.A.  1-70.) 

Ejection  for  refusal  to  obey  rules,  see  infra, 
403. 

Rule  of  freight  carriers,  see  infra,  777, 
781,  824,  825. 

Right  to  separate  passengers  on  account  of 
race,  see  Civil  Rights,  3. 

Admissibility  of  rules  in  evidence,  see  Evi- 
dence, 1786,  1788. 

Necessity  of  specially  pleading  violation  of 
rule  as  defense  to  action  for  ejection,  see 
Pleading,  502. 

See  also  infra,  356,  488. 

45.  A  rule  of  a  railroad  company  forbid- 
ding passengers  to  turn  seats  so  as  to  ride 
backwards  is  reasonable.  Chesapeake  & 
O.  R.  Co.  V.  Spiller,  50:  394,  162  S.  W  815, 
157   Ky.   222.  (Annotated) 

46.  A  rule  of  a  sleeping  car  company  not 
to  admit  to  its  cars  persons  afflicted  with 
contagious  disease  is  reasonable.  Pullman 
Co.  V,  Krauss,  4:  103,  40  So.  398,  145  Ala. 
395.  (Annotated) 

47.  A  regulation  of  a  street  car  com- 
pany requiring  passengers  transferring  to  a 
particular  line  to  make  the  transfer  at  a 
point  where  it  may  be  made  more  conven- 
iently and  safely  than  at  another,  which  is 
usually  overcrowded,  is  not  unreasonable. 
Shortsleeves  v.  Capital  Traction  Co.  8:  287, 
28  App.  D.  C.  365.  (Annotated) 
As  to  tickets  or  fare. 

As  to  making  change    on    street    car,    see 

infra,  648,  649. 
As  to  extra  fare,  see  infra,  II.  m,  4. 
Making  violation  of  rules  as  to  street  car 

transfers  a  crime,  see  Constitutional 

Law,  76. 
See  also  infra,  414,  427. 

47a.  A  rule  of  a  sleeping  car  company  not 
to  sell  single  seats  in  sleeping  cars  between 
10:30  P.  M.  and  7  A.  M.,  although  two  per- 
sons by  taking  a  berth  together  might  se- 
cure the  seat  rates,  is  not  unreasonable. 
Doherty  v.  Northern  P.  R.  Co.  36:  1139,  115 
Pac.  401,  43  Mont.  294. 

48.  A  provision  in  a  railroad  ticket  that, 
in  case  of  dispute  between  passenger  and 
conductor  as  to  the  right  to  transportation 
under  it,  the  passenger  must  pay  his  fare 
Digest  1-52  L.R.A.(N.S.) 


and  apply  to  the  company  for  redress,  is  un- 
reasonable, and  not  binding  on  a  passenger 
having  a  valid  contract  for  transportation. 
Cherry  v.  Chicago  &  A.  R.  Co.  2:  695,  90  8. 
VV.  381,  191  Mo.  489.  (Annotated) 

48a.  A  provision  in  a  railway  ticket  that, 
in  cases  of  dispute  between  passenger  and 
conductor,  the  passenger  should  pay  the  rate 
which  the  conductor  demands,  get  a  receipt 
from  him,  and  report  to  the  general  office, 
where  the  same  will  receipt  prompt  atten- 
tion, is  void  for  unreasonableness.  Illinois 
C.  R.  Co.  V.  Gortikov,  14:  464,  45  So.  363, 
90  Miss.  787.  (Annotated) 

48b.  A  condition  upon  a  railroad  ticket 
that,  in  case  of  controversy  with  a  con- 
ductor and  his  refusal  to  accept  it,  the  pas- 
senger agrees  to  pay  the  regular  fare  and 
apply  for  reimbursement  at  the  office  of  the 
company,  is  unreasonable  and  void.  For- 
rester V.  Southern  P.  Co.  48:  i,  134  Pac. 
753,  136  Pac.  705,  36  Nev.  247. 

49.  A  rule  of  a  street  car  company  re- 
quiring conductors  to  collect  fare  from  ev- 
ery passenger  on  their  cars  is  reasonable 
when  applied  to  a  passenger  who,  having 
paid  his  fare  on  the  motor  car,  passes  from 
it  onto  the  trailer  1  y  alighting  from  one 
to  the  ground  and  boarding  the  other,  the 
cars  being  in  charge  of  separate  conductors. 
Birmingham  R.  L.  &  P.  Co.  v.  McDonough, 
13:  445,  44  So.  960,  153  Ala.  122. 

(Annotated) 

50.  A  railroad  company  is  not  forbidden 
to  make  possession  of  a  ticket  a  condition 
precedent  to  entering  its  train,  by  a  statute 
requiring  nonticket  holders  to  be  transport- 
ed at  the  regular  fare  charged  for  tickets. 
St.  Louis  &  S.  F.  R.  Co.  v.  Blythe,  29:  299, 
126  S.  W.  386,  94  Ark.  153.  (Annotated) 
As  to  place  to  ride. 

Admissibility  of  rule  in  evidence,  see  Evi- 
dence, 1728. 
See  also  infra,  226. 

51.  A  passenger  on  a  street  car  who  re- 
fuses to  obey  a  rule  forbidding  riding  on 
the  platform  loses  his  rights  as  a  passen- 
ger, including  that  to  a  transfer  to  another 
car.  Kirk  v.  Seattle  Electric  Co.  31:  991, 
108  Pac.  604,  58  Wash.  283. 

52.  The  carrier  waives  its  notice  and 
rule  that  "passengers  are  not  allowed  to 
stand  on  the  platform"  when  its  conductor 
receives  and  carries  passengers  thereon 
after  the  train  is  so  crowded  that  the  cars 
cannot  reasonably  be  entered.  Norvell  v. 
Kanawha  &  M.  R  Co.  29:  325,  68  S.  E.  288, 
67  W.  Va.  467. 

c.  Who  are  passengers. 

1.  Employee  of  carrier. 

(See  also  Carriers,  II.  a,  2,  b  (1)  (h)  in 
Digest  L.R.A.  1-70.) 

Relation  of  carrier  and  passenger  between 
employer  and  servant  riding  on  ele- 
vator, see  Master  and  Servant,  288. 

Duty  towards  employee  of  mine  riding  on 
train  to  and  from  work,  see  Masteb 
and  Servant,  866. 


CARRIERS,  II.  c,  2. 


353 


Ratification    of   superintendent's   agreement  i  mine,  his  manufacturing  establishment,  and 
to  give   free   transportation,    see   Pkin-    shipping  terminals,  are,  while  so  in  process 


ciPAL  AND  Agent,  90. 
See  also  infra,  69,  76. 

53.  A  servant,  employed  to  labor  by  the 
day  in  the  power  house  of  a  railway  com- 
pany, and  who  is  furnished  with  a  free 
pass,  under  a  rule  of  the  company,  which 
entitles  him  to  ride  on  any  of  the  com- 
pany's cars  at  any  time,  and  about  his  own 
business,  during  the  continuance  of  his  em- 
ployment, is  a  "passenger"  when  riding 
either  to  or  from  his  place  of  labor,  and 
not  a  fellow  servant  of  the  motorman  in 
charge  of  the  car,  and  is  entitled  to  the 
same  rights  as  a  passenger  for  hire.  Har- 
ris v.  City  &  E.  G.  R.  Co.  50:  706,  70  S.  E. 
859,   69   W.   Va.   65. 

54.  A  railroad  flagman  who  receives  as 
compensation  for  his  services  a  certain  sum 
and  fourteen  transportation  tickets  to  car- 
ry him  to  and  from  his  home  per  week  is, 
after  his  day's  work  is  done,  and  he  has 
boarded  a  car  for  home,  being  required  to 
pay  a  ticket  for  his  transportation,  a  pas- 
senger, and  not  a  fellow  servant  with  those 
engaged  in  operating  the  car.  Enos  v. 
Rhode  Island  Suburban  R.  Co.  12:  244,  67 
Atl.  5,  28  R.  I.  291. 

55.  An  employee  of  a  railroad  company 
engaged  in  track  construction  sustains  to  it 
the  relation  of  servant,  and  not  that  of  pas- 
senger, when,  after  the  defendant's  work  is 
finished,  he  is  being  transported  without 
payment  of  fare  on  a  special  car  from  the 
place  of  his  work  to  his  home.  Kilduff  v. 
Boston  Elev  R.  Co.  9:  873,  81  N.  E.  191,  195 
Mass.   307. 

56.  The  rights  of  a  section  man  on  a 
street  railway,  who  is  injured  while  riding 
to  his  work  from  his  home,  on  the  company's 
car,  without  paying  fare,  in  accordance  with 
a  custom  of  the  company  to  carry  such  em- 
ployees free  upon  their  displaying  badges 
furnislied  to  them,  are  not  those  of  a  pas- 
senger, but  merely  of  an  employee.  Bir- 
mingham R.  L.  &  F.  Co.  v.  Sawyer,  19:  717, 
47   So.   67,   156   Ala.    199.  (Annotated) 

57.  A  street  railway  company  is  liable 
for  injury  to  an  employee  of  its  power 
house  while  riding  to  or  from  his  work  on 
a  pass,  by  the  negligence  of  the  motorman 
in  charge  of  the  car.  Harris  v.  City  &  E. 
G.  R,  Co.  50:  706,  70  S.  E.  859,  69  W.  Va. 
65.  (Annotated) 

58.  An  employee  of  a  street  car  com- 
pany Avhen  riding  on  a  regularly  scheduled 
car  of  his  employer,  in  accordance  with  the 
terms  of  his  contract  entitling  him  to  free 
transportation  to  and  from  work,  is  a 
passenger,  and  a  provision  on  the  ticket 
furnished  him  as  evidence  of  his  right,  at- 
tempting to  relieve  the  carrier  from  lia- 
bility for  injuring  him,  is  void.  Klinck  v. 
Chicago  Citv  R.  Co.  52:  70,  104  N.  E.  669, 
262  111.  280." 

59.  Employees  in  a  mine  who  are  gratui- 
tously carried  by  the  mine  owner  between 
their  homes  and  place  of  work  on  a  rail- 
road which   he  operates   as   a  private  road 


of  transportation,  employees,  and  not  pas- 
sengers; and  the  employer  is  therefore  not 
liable  for  their  injury  through  the  negli- 
gence of  other  employees  in  failing  to  set 
derailing  devices,  and  in  putting  standing 
cars  in  motion  so  that  they  run  down  an 
incline  and'collide  with  the  miners'  train. 
Dayton  Coal  &  Iron  Co.  v.  Dodd,  37:  456, 
188  Fed.  597,  110  C.  C.  A.  395. 

2.  Other    persons.  " 

(See  also  Carriers,  II.  a,  2,  b  (1),  fa)  and 
(c)  in  Digest  L.R.A.  1-10.) 

On  elevator,  see  Elevators,  8. 

Sufficiency  of  evidence  to  show  acceptance 
of  person  as  passenger,  see  Evidence, 
2253. 

Sufficiency  of  allegations  as  to,  see  Plead- 
ing, 33,  264. 

See  also  supra,  51. 

60.  One  upon  the  premises  of  a  railroad 
company  to  purchase  the  return  coupon  of 
an  excursion  ticket  from  some  incoming  ex- 
cursionist, for  passage  over  its  lines  on  a 
train  scheduled  to  depart  eight  hours  later, 
intending  in  the  meantime  to  remain  in  the 
city  of  purchase,  and  not  upon  the  premises 
of  the  company,  and  therefore  not  under  its 
care  or  control,  is  not  a  "passenger,"  within 
the  proper  meaning  of  the  term.  Kidwell  v. 
Chesdpeake  &  0.  R.  Co.  43:  999,  77  S.  E.  285, 
71   W.  Va.   664,  (Annotated) 

61.  A  person  is  not  a  passenger,  and 
entitled  to  consideration  and  protection  as 
such,  who,  after  waiting  all  day  in  a  sta- 
tion for  a  train,  and  discovering  tlat  he 
will  be  unable  to  reach  his  destination  in 
time  for  the  accomplishment  of  the  pur- 
pose of  his  journey,  leaves  the  station  and 
goes  to  a  hotel  for  supper,  and  then  returns 
to  such  station  for  the  purpose  of  sending 
a  telegram,  announcing  the  fact  that  he 
will  be  unable  to  make  the  journey,  and 
that  it  is  his  intention  not  to  attempt  to 
do  so.  Galehouse  v.  Minneapolis,  St.  P.  & 
St.  Ste.  M.  R.  Co.  47:  965,  135  N.  W.  189,  22 
N.  D.  615. 

62.  One  who  goes  to  a  railroad  station 
to  inquire  as  to  the  possibility  of  securing 
passage  on  a  freight  train,  which  he  knows, 
by  the  rules  of  the  company,  is  not  allowed 
to  carry  passengers,  and  to  secure  passage 
thereon  if  possible,  is  not  entitled  to  the 
rights  of  a  passenger,  but  is  a  mere  tres- 
passer. Neice  v.  Chicago  &  A.  R.  Co.  41: 
162,    98    N.    E.    989,   254    111.    595. 

(Annotated) 

63.  A  person  on  a  railroad  train  holding 
a  first-class  ticket  is  entitled  to  the  rights 
of  a  passenger,  although  the  ticket  was  in 
fact  issued  to  another  and  delivered  by  the 
latter  to  him.  Denver  &  R.  G.  R.  Co.  v. 
Berry,  27:  761,  108  Pac.  172,  47  Colo.  584. 

64.  A  person  desiring  to  travel  between 
two  stations  on  the  line  of  road  of  a  car- 
rier,  who,   at  the   suggestion   of  the  ticket 


to  transport  coal  and  supplies  between  the    agent,  purchases  a  ticket  to  a  station  mid- 
Digest  1-52  Ii.R.A.(N.S.)  23 


354 


CARRIERS,  II.  c,  2. 


way  between  the  two  points,  intending  there 
to  purchase  a  ticket  for  the  balance  of  the 
journey,  and  catch  a  through  train  which 
doea  not  stop  at  the  first  station,  is  not  a 
passenger  at  the  midway  station  until  he 
has  purchased  his  ticket,  although  he  re- 
mained for  several  hours  at  the  station, 
awaiting  his  train,  before  thus  purcliasing 
the  ticket.  Barnett  v.  Minneajrolis  &  St.  L. 
R.  Co.  48:  262,  143  N.  W.  263,  123  Minn. 
153. 

65.  A  passenger  who  boards  a  train  after 
telegraphing  for  a  reservation  on  a  certain 
Pullman  car  which  is  not  attached  to  that 
train,  but  will  be  picked  up  a  few  miles 
down  the  road,  and  is  allowed  to  remain  in 
a  Pullman  car  pending  the  arrival  of  the 
one  on  which  his  reservation  is,  is  not  a 
passenger  of  the  Pullman  company,  and  it  is 
not  liable  for  negligence  of  its  conductor 
which  results  in  his  missing  his  car.  Cin- 
cinnati, N.  O.  &  T.  P.  R.  Co.  V.  Raine, 
19:  753,  113  S.  W.  495,  130  Ky.  454. 

66.  A  person  stepping  upon  the  running 
board  of  a  moving  street  car  does  not  be- 
come a  passenger  unless  he  is  recognized  by 
the  servants  of  the  company  as  such.  Lock- 
wood  V.  Boston  Elevated  R.  Co.  22:  488,  86 
N.  E.  934,  200  Mass.  537. 

67.  One  who  is  attempting  to  board  a 
train  of  one  of  several  railroad  companies 
using  common  tracks  through  a  station,  for 
the  purpose  of  taking  passage  thereon,  is  a 
passenger  as  to  all  roads  using  those  tracks, 
in  determining  the  measure  of  care  which 
they  owe  him.  Chicago,  R.  I.  &  P.  R.  Co. 
V.  Stepp,  22:  350,  164  Fed.  785,  90  C.  C.  A. 
431. 

68.  A  person  may  be  found  not  to  have 
become  a  passenger  on  a  street  car  where, 
haviijg  swung  himself  onto  the  step  while 
the  car  was  in  motion,  the  conductor  re- 
fused to  accept  him  as  a  passenger  unless 
he  got  inside  the  car.  Hogner  v.  Boston 
Elev.  R.  Co.  15:  960,  84  N.  E.  464,  198  Mass. 
260.  (Annotated ) 

69.  A  railroad  tie  inspector  in  the  em- 
ploy of  one  railroad  company,  who  is  trans- 
ported from  place  to  place  without  charge 
by  another  company  which  is  engaged  in 
transporting  ties  for  the  former,  to  enable 
him  in  the  performance  of  his  duties  to 
inspect  the  ties  to  be  transported,  has  the 
rights  of  a  passenger  while  on  its  trains 
in  the  performance  of  his  duties.  St.  Louis 
&  S.  F.  R.  Co.  v.  Kitchen,  50:  828,  136  S.  W. 
970,  98  Ark.  507. 

70.  A  carrier  cannot  escape  liability  for 
negligently  injuring  one  whom  it  has  ac- 
cepted as  a  passenger,  although  he  claimed 
transportation  under  a  contract  which  vio- 
lated the  provisions  of  the  Constitution 
against  free  passes.  Bradburn  v.  Whatcom 
County  R.  &  Light  Co.  14:  526,  88  Pac. 
1020,  45  Wash.   582.  (Annotated) 

71.  A  police  officer  is  not  deprived  of  his 
right  to  the  high  degree  of  care  due  from  a 
carrier  to  a  passenger  because  no  valid  con- 
tract exists  for  the  reason  that  he  is  riding 
free  under  an  invalid  ordinance,  when  he 
takes  passage  in  good  faith  as  a  passenger 
with  the  consent  of  the  company,  not  re- 
Digest  1-52  KB.A.(N.S.) 


fusing  to  pay  fare;  and  the  fact  that  its 
agents  believe  he  has  the  right  to  ride  free 
is  immaterial.  Gabbert  v.  Hackett,  14: 
1070,  115  N.  W.  345,  135  Wis.  80. 

72.  A  city  fireman  carried  free  on  a 
street  car  by  way  of  courtesy  may  hold  the 
company  liable  for  injury  infiicted  upon 
him  by  the  negligent  operation  of  the  car. 
Memphis  Street  R.  Co.  v.  Caviness,  46: 
142,  157  S.  W.  63,  127  Tenn.  571. 

(Annotated) 

73.  One  who  boards  a  train  to  ride  a 
short  distance,  with  intention  to  pay  his 
fare  if  he  is  asked  for  it,  may  be  found  to 
be  a  passenger,  although  he  remains  on 
the  platform  and  has  not  been  approached 
by  the  conductor  for  fare.  St.  Louis  &  S. 
F.  R.  Co.  V.  Sanderson,  46:  352,  54  So.  885, 
99  Miss.   148. 

Person  riding  ivith  knoixriedge  or  con- 
sent  of   carrier's   employees. 

74.  The  statutory  prohibition  against 
riding  on  any  railroad  engine  or  freight  or 
wood  car  withcrut  authority  or  permission  of 
the  proper  officers  of  the  company  does  not 
extend  to  one  to  whom  permission  has  been 
given  by  the  person  in  charge  of  the  engine 
or  car.  Grimshaw  v.  Lake  Shore  &  M.  S.  R. 
Co.  40:  563,  98  N.  E.  762,  205  N.  Y.  371. 

75.  Neither  the  conductor  nor  the  en- 
gineer of  a  train,  nor  the  master  mechanic 
of  a  railroad,  has  the  implied  authority  to 
invite  a  person  to  ride  in  the  cab  of  a  loco- 
motive without  paying  fare.  Clark  v.  Colo- 
rado &  N.  W.  R.  Co.  19:  988,  165  Fed.  408, 
91  C.  C.  A.  358. 

76.  A  railroad  employee  permitted  by  the 
engineer  to  ride  on  an  engine,  contrary  to 
the  rules  of  the  company,  of  which  he  is 
ignorant,  is  a  licensee  toward  whom  the 
company  must  exercise  ordinary  care. 
Grimshaw  v.  Lake  Shore  &  M.  S.  R.  Co. 
40:  563,  98  N.  E.  762,  205  N.  Y.  371. 

77.  A  corporation  operating  a  train  for 
the  purpose  of  carrying  logs  cannot  be  held 
liable  for  the  death  of  one  who  accepts  an 
invitation  of  the  crew  to  ride  on  the  train, 
especially  when  it  was  apparent  to  him  tliat 
there  was  danger  in  so  doing.  Johnson  v. 
Louisiana  R.  &  Nav.  Co.  36:  887,  56  So.  301, 
129  La.  332. 

78.  The  custom  of  a  section  foreman  of 
a  railroad  company  for  several  years  to 
permit  persons  to  ride  on  hand  cars  after 
working  hours,  contrary  to  the  rules  of  the 
company,  and  without  the  knowledge  of  its 
officers,  does  not  give  a  person  so  carried 
the  rights  of  a  passenger,  so  as  to  permit 
him  to  recover  as  such  in  case  of  injury 
through  collision  between  the  car  on  which 
he  is  riding  and  another  car.  Cleveland  v. 
Pine  Bluff  A.  River  R.  Co.  44:  687,  154  S. 
W.  191,  107  Ark.  93. 

79.  One  taking  passage  upon  a  freight 
train  under  an  agreement  with  the  conduct- 
or to  render  services  for  his  tifansporta- 
tion  is  a  mere  volunteer,  and  assumes  the 
risk  of  injury  incident  to  the  undertaking. 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Jones,  37:  418, 
132  S.  W.  636,  96  Ark.  558. 

80.  One  obtaining  permission  from  the 
conductor  to  ride  upon  a   freight  train  for 


CARRIERS,  II.  c,  3. 


355 


less  than  the  regular  fare,  who  is  shut  into 
a  freight  car  for  the  trip,  has  not  the  rights 
of  a  passenger,  since  tlip  whole  transaction 
shows  that  he  is  aot  contracting  for,  or 
expecting,  the  treatment  due  to  a  passenger. 
Grahn  v.  International  &  G.  N.  R.  Co. 
5:  1025,   93   S.  W.   104,   100  Tex.   27. 

(Annotated) 
Frand  or  stealth  of  passenger. 

81.  One  who,  by  fraudiUent  representa- 
tions as  to  her  age  and  occupation,  procures 
a  student's  reduced-fare  railroad  tici^et,  does 
not,  \vhile  traveling  upon  it,  occupy  the  re- 
lation of  passenger  towards  the  carrier,  but 
is  a  trespasser,  and  cannot  therefore  recover 
for  injuries  received  while  upon  the  train, 
unless  they  were  received  under  circum- 
stances which  would  entitle  a  trespasser  to 
recover.  Fitzmaurice  v.  New  York,  N.  H.  & 
H.  R.  Co.  6:  1 146,  78  N.  E.  418,  192  Mass. 
159.  (Annotated) 
Person  vritli  ticket  on  xirrong  train. 

82.  One  who  attempts  to  leave  a  car 
upon  learning  that  it  is  the  wrong  one 
does  not  possess  the  rights  of  a  passenger, 
and  the  carrier  is  bound  to  exercise  toward 
him  ordinary  care  only,  Robertson  v. 
Boston  &  N.  Street  R.  Co.  3:588,  76  N.  E. 
513,  190  Mass.  108.  (Annotated) 
Shippers  w^ith  stock  or  goods. 

83.  A  drover  traveling  on  a  stock  pass  is 
a  passenger  fbr  hire,  within  the  rule  forbid- 
ding the  carrier  to  contract  for  an  exemp- 
tion from  liability  for  its  negligence.  Lake 
Shore  &  M.  S.  R.  Co.  v.  Teeters,  5:  425,  77 
N.   E.    599,    166   Ind.   335. 

84.  An  immigrant  required  to  accom- 
pany his  stock  and  household  goods  for  the 
purpose  of  caring  for  them  is  not  entitled 
to  the  rights  of  a  passenger,  where,  after 
his  car  reaches  destination,  and  his  stock 
has  been  unloaded,  he  attempts  to  use  the 
car  for  sleeping  purposes,  until  his  goods 
can  be  removed  from  it,  where  the  goods 
can  be  fully  protected  in  the  car,  and  there 
are  hotel  accommodations  near  by.  Chi- 
cago, R.  I.  &  P.  R.  Co.  V.  Thurlow,  30:  571, 
178  Fed.  894,  102  C.  C.  A.  128.  (Annotated) 
Infant  accompanied  by  adult. 

85.  A  child  who  is  permitted  by  the  con- 
ductor to  travel  with  an  adult  without  pay- 
ing fare  is  entitled  to  the  rights  of  a  pas- 
senger. Southern  R.  Co.  v.  Lee,  10:  837, 
101  S.  W.  307,  30  Ky.  L.  Rep.  1360. 
Express  messengers. 

86.  An  express  messenger,  though  on  a 
special  car  under  a  contract  with  the  ex- 
press company  for  transportation  of  express 
matter,  is  a  passenger  for  hire  of  the  rail- 
road company.  Davis  v.  Chesapeake  &  0.  R. 
Co.  5:  458,  92  S.  W.  339,  122  Ky.  528. 

87.  The  relation  of  an  express  messenger 
to  the  railroad  company  is  not  that  of  pas- 
senger for  hire,  but  is  governed  by  the  con- 
tract between  the  railroad  and  express  com- 
pany. Robinson  v.  St.  Johnsbury  &  L.  C.  R. 
Co.  9:  1249,  66  Atl.  814,  80  Vt.  129. 
Digest  1-52  L.R.A.(N.S.) 


3.  When  relation  commences. 

(See  also  Carriers,  II.  a,  2,  b  (2)  m  Digest 
L.R.A.  1-10.) 

See  also  infra,  102. 

88.  The  relation  of  carrier  and  passenger 
is  established  when,  in  obedience  to  a  sig- 
nal, the  motorman  stops  a  street  car,  and, 
with  the  knowledge  of  the  conductor,  the 
intending  passenger  steps  and  stands  upon 
the  running  board,  on  his  way  to  a  seat. 
Lockwood  V.  Boston  Elevated  R.  Co.  22:  488, 
86   N.   E.   934,  200  Mass.   537. 

Before    entering   train. 

89.  No  formal  act  of  deliVery  of  one's 
person  into  the  care  of  a  railroad  company, 
or  of  acceptance  by  the  latter  of  one  who 
presents  himself  for  transportation,  is  es- 
sential to  constitute  the .  relation  of  pas- 
senger and  carrier.  Kidwell  v.  Chesapeake 
&  O.  R.  Co.  43:  999,  77  S.  E.  285,  71  W.  Va. 
664. 

90.  The  purchase  of  a  ticket  does  not 
alone  operate  to  constitute  the  relation  of 
passenger  and  carrier;  nor  is  such  purchase 
essential  to  its  existence,  though  it  may  be 
considered  as  one  among  other  elements  en- 
tering into  the  inception  of  such  relation. 
Kidwell  V.  Chesapeake  &  0.  R.  Co.  43:  999, 
77  S.  E.  285,  71  W.  Va.  664. 

91.  The  relation  of  passenger  and  carrier 
begins  when  one  presents  himself  at  a  pas- 
senger station  of  the  carrier,  in  readiness  to 
be  transported  to  his  destination,  under  such 
circumstances  of  time,  place,  manner,  and 
condition  that  the  carrier  must  be  deemed 
to  have  accepted  him  as  a  "passenger."  Kid- 
well V.  Chesapeake  &  0.  R.  Co.  43:  999,  77 
S.  E.  285,  71  W.  Va.  664. 

92.  The  relation  of  one  purchasing  a 
ticket  at  the  station  of  a  terminal  corpora- 
tion, and  the  carrier  whose  train  he  is  to 
take  and  which  is  by  law  compelled  to  use 
such  terminal,  does  not  become  that  of  pas- 
senger and  carrier  until  he  is  about  to  en- 
ter the  carrier's  car.  Hunt  v.  New  York, 
N.  H.  &  H.  R.  Co.  40:  778,  98  N.  E.  787,  212 
Mass.  102.  (Annotated) 

93.  One  who  goes  to  a  railway  station 
and  purchases  a  ticket  for  a  train  due 
shortly  afterwards  is  entitled  to  the  rights 
of  a  passenger  in  crossing  the  tracks  to 
board  the  train,  after  it  has  been  an- 
nounced. Dieckmann  v.  Chicago  &  N.  W. 
R.  Co.  31:338,  121  N.  W.  676,  145  Iowa, 
250. 

94.  One  who  is  upon  the  prfemises  of  a 
railroad  company  for  the  purpose  of  board- 
ing a  train  in  due  course,  and  has  purchased 
a  ticket  entitling  him  to  transportation,  is, 
while  approaching  the  train  upon  which  he 
is  to  be  carried,  a  passenger.  Pere  Mar- 
quette R.  Co.  v.  Strange,  20:  1041,  84  N.  E. 
819,    171    Ind.    160. 

95.  One  who,  although  intending  to 
board  a  car,  is  125  yards  from  the  station 
when  the  car  arrives,  cannot  complain  that 
it  does  not  wait  a  sufficient  time  to  enable 
passengers  to  embark  before  it  proceeds  on 
its   journey,   since,    not   being   at   the    sta- 


356 


CARRIERS,  11.  c,  4. 


tion,  the  carrier  owes  him  no  duty.  Mitch- 
ell V.  Augusta  &  A.  R.  "Co.  31:  442,  69 
S.  E.  664,  87  S.  C.  375.  (Annotated) 

96.  One  who  goes  to  a  railroad  station  a 
few  minutes  before  the  arrival  of  his  train 
is  entitled  to  the  rights  of  a  passenger,  al- 
though his  intention  is  merely  to  leave  his 
hand  baggage  and  depart  again  to  trans- 
act some  personal  business  before  train 
time,  where  by  statute  the  railroad  com- 
pany is  required  to  keep  its  station  open 
at  least  an  hour  before  the  arrival  of 
trains;  and  he  may  therefore  hold  the  rail- 
road company  liable  for  an  injury  due  to 
the  unsafe  condition  of  the  premises.  Met- 
calf  V.  Yazoo.  &  M.  V.  R.  Co.  28:  3",  52  So. 
355,  97  Miss.  455.  (Annotated) 
After  entering  train. 

97.  Where  one  intending  to  become  a 
passenger,  and  while  the  work  of  preparing 
the  train  on  which  he  intends  to  take  pas- 
sage is  going  on,  necessitating  dangerous 
switchings  and  coupling  of  the  cars,  of 
which  he  has  notice,  and  at  a  point  where 
the  carrier  is  not  accustomed  to  receive 
passengers,  and  without  notice  to,  or  in- 
vitation by,  any  officer  or  agent  of  the  car- 
rier with  authority,  enters  one  of  t:ie  coach- 
es, and,  in  attempting  to  go  from  one  coach 
to  another,  is  injured  by  a  jolt  or  impact 
given  to  the  coaches  in  making  such  switoh- 
es  or  couplings,  the  carrier  is  not  liable  to 
him  in  damages  for  his  injuries  thus  sus- 
tained. Raines  v.  Chesapeake  &  0.  R.  Co. 
33:  583,  70  S.  E.  711,  68  W.  Va.  694. 

(Annotated) 
Before    entering   street   car. 

98.  One  attempting  to  board  a  street 
car  which  has  slowed  up  to  receive  him  at 
a  regular  stopping  place  is  entitled  to  the 
rights  of  a  oassenger.  Klinck  v.  Chicago 
City  R.  Co.  52:  70,  104  N.  E.  669,  262  III. 
280. 

99.  One  attempting  to  pass  in  front  of  a 
standing  street  car  to  take  passage  thereon 
is  not  a  passenger  within  the  rule  that  car- 
riers must  furnish  reasonably  safe  appli- 
ances for  the  accommodation  of  passengers 
in  getting  on  and  off  trains;  and  a  presump- 
tion of  negligence  on  the  part  of  the  com- 
pany does  not  therefore  arise  in  case  he 
falls  over  a  proper  fender  properly  adjusted 
on  the  front  of  the  car,  to  his  injury,  at  a 
time  when  the  fender  is  plainly  visible. 
Jaquette  v.  Capital  Traction  Co.  25:  407, 
34   App.   D.   C.   41.  (Annotated) 

100.  One  who  attempts  to  use  a  plank 
placed  to  facilitate  access  to  a  standing 
street  car  for  the  purpose  of  entering  the 
same  as  a  passenger  is  entitled  to  the  rights 
of  a  passenger,  although  he  has  not  been 
expressly  accepted  as  such  by  an  employee 
of  the  car  or  paid  fare  or  purchased  a 
ticket.  Messenger  v.  Valley  City  Street  &  I. 
R.  Co.  32:  881,  128  N.  W.  1023,  21  N.  D. 
82. 

101.  One  who  in  good  faith,  and  for  the 
purpose  of  taking  passage,  signals  an  ap- 
proaching electric  car  in  the  manner  pre- 
scribed by  the  carrier,  the  motorman  re- 
sponding to  that  signal  by  sounding  the 
whistle  or  setting  the  brakes,  thereby  be- 
Bigest  1-52  L.R.A.(N.S.) 


comes  a  passenger;  and  the  question  wheth- 
er or  not  he  is  guilty  of  contributory  negli- 
gence in  crossing  the  track  for  the  purpose 
of  boarding  the  car  must  be  considered  with 
reference  to  his  character  as  a  passenger. 
Karr  v.  Milwaukee  .Heat,  Light,  &  Trac- 
tion Co.  13:  283,  113  N.  W.  62,  132  Wis.  662. 

(Annotated; 

4.  Termination  of  relation, 

(See  also  Carriers,  II.  a,  2,  b  (S)  in  Digest 
L.R.A.  1-10.) 

Question  for  jury  as  to,  see  Trial,  235. 
See  also  infra,  134,  737. 

102.  From  the  time  a  passenger  places 
himself  under  the  charge  of  the  carrier,  as 
he  begins  his  journey,  until  he  is  afforded 
the  opportunity  to  leave  the  premises  of  the 
carrier,  at  its  termination,  he  is  "a  pas- 
senger being  transported"  within  Cob. 
(Neb.)  Anno.  Stat.  1903,  chap.  47,  p.  2876, 
§  1039,  unless,  by  some  act  not  attributable 
to  the  carrier,  the  relation  ceases.  Fremont, 
E.  &  M.  Valley  R.  Co.  v.  Hagblad,  4:  254, 
101  N.  W.  1033,  72  Neb.  773.       (Annotated) 

103.  Failure  of  a  passenger,  who  is  asleep 
when  the  train  reaches  his  destination,  to 
waken  and  leave  the  train  immediately 
upon  its  coming  to  a  stop,  does  not  termi- 
nate his  relation  as  passenger  and  the  car- 
rier's duty  of  protection,  if  those  in  charge 
of  the  train,  knowing  the  facts,  fail  to 
waken  him  and  acquaint  him  with  the  fact 
that  he  should  alight.  Bass  v.  Cleveland, 
C.  C.  &  St.  L.  R.  Co.  2:  875,  105  N.  W.  151, 
142  Mich.   177.  (Annotated) 

104.  A  passenger  does  not  lose  his  char- 
acter as  such  by  going  upon  the  platform 
of  a  moving  train,  contrary  to  a  conspicu- 
ously posted  notice  forbidding  him  to  do 
so,  as  the  train  approaches  his  station,  in 
the  absence  of  express  notice  that  such  con- 
duct will  have  that  effect  or  other  special 
circumstances,  so  as  to  destroy  a  statu- 
tory right  of  action  for  his  death  on  be- 
half of  his  next  of  kin,  which  is  intended  as 
a  penalty  to  punish  the  carrier  for  negli- 
gence in  causing  the  passenger's  death. 
Renaud  v.  New  York,  N.  H.  &  H.  R.  Co. 
38:  689,  97  N.  E.  98,  210  Mass.  553. 

105.  The  duty  which  a  railway  company 
owes  to  a  passenger,  to  exercise  the  highest 
degree  of  care  for  his  safety  which  is  rea- 
sonably practicable,  does  not  cease  until  the 
passenger  has  reached  his  destination,  and 
left  the  train.  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Wimmer,  4:  140,  84  Pac.  378,  72  Kan.  566. 

106.  The  relation  of  a  passenger  to  a 
railroad  company  ceases  when  he  has 
alighted  from  the  train  upon  the  platform 
at  his  destination,  and  proceeded  far 
enough  towards  the  exit  from  the  company's 
property  to  be  out  of  danger  from  the  move- 
ment of  the  train,  and  necessity  for  further 
relation  with  the  servants  of  the  company 
ha^  ceased.  Berryman  v.  Pennsylvania  R. 
Co.  30:  1040,  77  Atl.   1011,  228  Pa.  621. 

107.  A  passenger  alighting  from  a  railroad 
train  has  a  right  to  remain  in  the  railroad 


CARRIERS,  II.  c,  4. 


357 


waiting  room  a  reasonable  time,  awaiting 
the  arrival  of  friends  who  are  to  meet  him, 
witliout  losing  his  rights  as  a  passenger. 
Powell  V.  Philadelphia  &  R.  R.  Co.  20:  1019, 
70  Atl.  268,  220  Pa.  638.  (Annotated) 

108.  A  passenger  who,  upon  alighting  from 
a  train,  goes  to  the  station,  which  is  some 
distance  from  the  place  where  he  left  the 
train,  simply  to  await  the  arrival  of  a 
street  car  upon  which  he  intends  to  become 
a  passenger,  and  which  could  have  been 
boarded  from  points  less  distant,  cannot 
claim  the  rights  of  a  passenger  if  injured 
by  the  negligence  of  the  railroad  company. 
Powell  v.  Philadelphia  &  R.  R.  Co.  20:  1019, 
70  Atl.  268,  220  Pa.  638. 

109.  The  mere  use,  by  a  passenger  who  has 
alighted  from  a  train,  of  a  public  crossing, 
in  getting  to  a  station  on  the  opposite  side 
of  tlie  track,  which  is  nearest  his  destina- 
tion, does  not  per  se  terminate  his  relation 
to  the  carrier.  Powell  v.  Philadelphia  & 
R.  R.  Co.  20:  1019,  70  Atl.  268,  220  Pa. 
638. 

110.  A  passenger  does  not  lose  his  rela- 
tion as  such,  when,  after  leaving  the  train 
and  while  proceeding  towards  the  exit  from 
the  carrier's  premises,  he  learns  of  the 
shooting  of  his  brother,  a  fellow  passenger, 
by  a  servant  of  the  carrier,  and  in  good 
faith  and  without  intention  of  engaging  in 
any  difficulty,  returns  to  the  relief  of  his 
brother,  and  he  is  entitled  to  protection 
by  the  carrier  from  assault  by  its  agents. 
Layne  v.  Chesapeake  &  0.  R.  Co.  31:  414, 
69  S.  E.  700,  68  W.  Va.  213. 

111.  One  who,  in  going  from  a  railroad 
car  to  a  street,  after  passing  a  certain  dis- 
tance along  the  walk  provided  by  the  rail- 
road company,  turns  aside  and  attempts  to 
walk  across  the  tracks  of  the  company,  can- 
not claim  the  protection  from  the  company 
which  is  due  to  a  passenger.  Legge  v.  New 
York,  N.  H.  &  H.  R.  Co.  23:  633,  83  N.  E. 
367,  197  Mass.  88.  (Annotated) 

112.  One  who  failed  to  secure  entrance  to 
a  train  which  he  intended  to  board,  to  take 
passage  thereon,  because  the  vestibule  doors 
were  closed  at  all  entrances  which  he 
reached,  does  not  lose  his  rights  as  a  pas- 
senger while  returning  to  the  station  to 
wait  for  the  next  train.  Chicago,  R,  I.  &  P. 
R.  Co.  V.  Stepp,  22:  350,  164  Fed.  785,  90  C. 
C.  A.  431. 

113.  A  passenger  terminates  hia  relation 
as  such  to  the  carrier,  as  matter  of  law, 
where,  upon  reaching  his  destination,  he  vol- 
untarily loiters  in  the  station  house  in  quest 
of  pleasure  and  to  enjoy  the  society  of 
friends  for  ten  or  fifteen  minutes;  and 
therefore,  in  subsequently  attempting  to 
leave  the  station  grounds,  he  cannot  rely 
on  the  duty  of  the  carrier  to  keep  its 
grounds  safe  for  passengers.  Glenn  v.  Lake 
Erie  &  W.  R.  Co.  2:  872,  75  N.  E.  282,  165 
Ind.  659.  (Annotated) 

114.  A  passenger  does  not  retain  hia 
rights  as  such  where,  for  a  period  of  two 
hours  after  reaching  his  destination,  he  re- 
mains at  the  station  to  secure  shelter 
Digest  1-52  L.B.A.(N.S.) 


from  a  storm.     Bays  v.  Louisville  &  N.  R. 
Co.  34:  678,   134  S.  W.  450,  142  Ky.  400. 

115.  One  in  transit  from  one  car  to 
anotlier,  substituted  therefor  because  of  an 
obstruction,  remains  a  passenger,  and  en- 
titled to  the  protection  that  the  highest 
degree  of  care  on  the  part  of  the  carrier  can 
afford  under  the  circumstances.  Killmeyer 
V.  Wheeling  Traction  Co.  48:  683,  77  S.  E. 
908,  72  W.  Va.  148. 

116.  Where  an  obstruction  prevents  fur- 
ther passage  of  a  car,  and  another  is,  by  the 
carrier,  substituted  therefor  beyond  the  ob- 
struction, the  duty  imposed  by  law  upon  a 
carrier  for  the  safety  of  passengers  is  not 
thereby  suspended,  but  continues  unaffected 
while,  without  negligence  on  his  part,  and  in 
exercise  of  ordinary  care  for  his  safety,  a 
passenger  is  engaged  in  an  immediate  effort 
to  reach  the  substituted  car.  Killmeyer  v. 
Wheeling  Traction  Co.  48:  683,  77  S.  E.  908, 
72  W.  Va.  148.  (Annotated) 

117.  A  passenger  holding  a  through  ticket 
does  not  lose  his  relation  to  the  carrier  by 
the  fact  that,  upon  arriving  at  a  junction 
point  where  he  is  to  change  cars,  he  is  ush- 
ered by  the  carrier's  employees  to  a  sleeping 
car  which  is  standing  in  the  yard  waiting  to 
be  attaclied  to  a  train  on  which  he  is  to  con- 
tinue his  journey,  rather  than  into  the  sta- 
tion building.  Denver  &  R.  G.  R.  Co.  v. 
Berry,  27:  761,  108  Pac.  172,  47  Colo.  584. 

118.  The  relation  of  a  passenger  on  a 
street  car  to  the  carrier  continues  until  he 
has  had  a  reasonable  opportunity  to  leave 
the  roadway  of  the  carrier  after  the  car 
has  reached  the  station  or  stopping  place  to 
which  lie  is  entitled  to  be  carried.  Melton 
V.  Birmingham  R.  L.  &  P.  Co.  16:  467,  45 
So.  151,  153  Ala.  95. 

119.  A  passenger  on  a  street  car,  who,  be- 
ing entitled  to  a  transfer  to  another  line, 
which  is  not  given  him  before  the  transfer 
point  is  reached,  continues  to  demand  it  aft- 
er he  has  reached  the  ground  at  the  transfer 
point  in  obedience  to  the  conductor's  com- 
mand to  get  off  the  car  and  out  of  the  way, 
has  not  lost  his  rights  as  a  passenger,  so  as 
to  absolve  the  company  from  liability  for  an 
assault  upon  him  by  the  conductor,  grow- 
ing out  of  the  altercation.  Blomsness  v. 
Puget  Sound  Electric  R.  Co.  17:  763,  92  Pac. 
414,  47  Wash.  620.  (Annotated) 

120.  A  passenger  on  a  crowded  street  car 
does  not  cease  to  be  such  by  momentarily 
stepping  to  the  ground  to  enable  other 
passengers  to  leave  the  car.  Tompkins  v. 
Boston  Elevated  R.  Co.  20:  1063,  87  N.  E. 
488,  201  Mass.  114. 

121.  The  relation  between  a  street  car 
company  and  its  passenger  has  not  ceased 
so  as  to  make  inapplicable  the  doctrine  of 
res  ipsa  loquitur  in  case  of  injury  to  him, 
although  he  has  reached  the  surface  of 
the  street,  if,  in  alighting  without  negli- 
gence on  hia  part,  his  feet  have  become 
entangled  in  a  rope  attached  to  the  car, 
so  that  he  is  injured  by  the  starting  of  the 
car.  Denver  City  Tramway  Co.  v.  Hills, 
36:  213,  116  Pac.  125,  50  Colo.  328. 


358 


CARRIERS,  II.  d,  e. 


d.  Abuse  of  passenger;  insult. 

(See  also  Carriers,  II.  a,  S,  b,  in  Digest 
L.R.A.  1-10.) 

Punitive  damages  for,  see  Damages,  91. 

Instructions  as  to  duty  to  protect  pas- 
senger from  insult,  see  Trial,  871. 

Uncertainty  of  instruction  that  passenger 
is  entitled  to  courteous  treatment,  see 
Trial,  1019. 

122.  A  carrier  of  passengers  is  as  much 
bound  to  protect  them  from  humiliation  and 
insult  as  from  physical  injury.  May  v. 
Shreveport  Traction  Co.  32:  206,  53  So. 
671,  127  La.  420. 

By  employee. 

Evidence  of  insulting  remark  by  brake- 
man,  see  Evidence,  1428. 

Damages  for,  see  Damages,  262-265,  665, 
666. 

See  also  infra,  134. 

123.  A  carrier  canq.ot  escape  liability  for 
insults  addressed  by  its  conductor  to  a  pas- 
senger, on  the  ground  tliat  it  did  not  au- 
thorize or  ratify  them.  Bleecker  v.  Colorado 
&  S.  R.  Co.  33:  386,  114  Pac.  481,  50  Colo. 
140. 

124.  Objectionable  remarks  addressed  by 
a  street  car  conductor  to  a  patron  of  the 
road  while  on  the  car,  referring  to  her  per- 
sonal appearance,  which  mortify  and  hu- 
miliate her,  are  actionable,  and  the  car 
company  will  be  held  in  damages  therefor. 
Haile  v.  New  Orleans  R.  &  L.  Co.  51:  1171, 
65  So.  225,  135  La.  229. 

125.  A  railroad  company  is  liable  for  any 
indignities  olTered  by  its  conductors  to  a 
passenger  who,  because  of  its  faj.lt  in  not 
having  an  agent  at  a  terminal  point  where 
the  passenger  is  to  exhibit  an  order  for  a 
ticket,  attempts  to  pursue  his  journey  upon 
the  order  without  1-..e  ticket,  and  is  in- 
sulted and  threatened  with  ejection  by  the 
conductor.  Cincinnati,  N.  0.  &  T.  P.  R.  Co. 
V.  Harris,  5:  779,  91  S.  W.  211,  115  Tenn. 
501.  (Annotated) 

126.  Applying  the  term  "negro"  to  a 
white  person,  or  suggesting  that  he  belongs 
in  the  negro  compartment  of  a  street  car, 
when  done  by  the  conductor  of  the  car, 
will  render  the  company  liable  in  damages 
to  such  person.  May  v.  Shreveport  Trac- 
tion Co.   32:  206,   53   So.   671,   127   La.   420. 

(Annotated) 

e.  Assault  on  passenger. 

(See  also  Carriers,  II.  a,  3,  c,  in  Digest 
L.R.A.  1-10.) 

Evidence  in  action  for,  see  Evidence,  1866. 

By  fellonr  passenger  or  stranger. 

Damages  for,  see  Damages,  409,  614. 
Proximate  cause  of,  see  Proximate  Cause, 

85. 
See  also  infra,  227,  228. 

127.  A  common  carrier  is  bound  to  exer- 
cise the  utmost  diligence  in  maintaining 
order  and  in  guarding  its  passengers  against 
Digest  1-52  L.R.A.(N.S.) 


assaults  by  other  passengers,  which  might 
reasoimbly  be  anticipated  or  naturally  ex- 
pected to  occur.  Jansen  v.  Minneapolis  & 
St.  L.  R.  Co.  32:  1206,  128  N.  W.  826,  112 
Minn.  496.  (Annotated) 

128.  Although  the  duty  of  enforcing  a 
statute  requiring  the  separation  of  white 
and  colored  passengers  is  imposed  upon  con- 
ductors of  trains,  a  railroad  company  may 
be  held  liable  for  injury  inflicted  upon  a 
passenger  of  one  race  by  a  member  of  the 
other  who  is  allowed  to  be  in  the  wrong 
compartment  without  the  knowkxlge  of  the 
conductor,  if  a  subordinate  employee,  ujwn 
discovering  his  presence  there,  fails,  as  soon 
as  practicable  and  within  a  reasonable  time, 
to  notify  the  conductor  of  that  fact.  Louis- 
ville &  N.  R.  Co.  V.  Renfro,  33:  133,  135  S. 
W.  266,  142  Ky.  590. 

129.  A  railroad  company  cannot  be  held 
liable  for  the  killing  of  a  negro  passenger 
by  a  white  person  permitted  to  be  in  the 
negro  compartment  of  a  train,  contrary  to 
the  provisions  of  the  statute,  if  the  shooting 
was  done  in  necessary  self-defense.  Louis- 
ville &  N,  R.  Co.  V.  Renfro,  33:  133,  135  S. 
W.  266,   142  Ky.  590. 

330.  A  railroad  whose  conductor  fails  as 
soon  as  practicable,  and  Avithin  a  reasonable 
time  after  discovering  a  white  passenger 
in  a  negro  compartment,  to  require  him  to 
leave  it,  is,  where  the  statute  provides  a 
penalty  for  permitting  passengers  to  occu- 
py compartments  set  apart  for  the  other 
race  and  charges  the  conductor  with  the 
enforcement  of  the  law,  liable  in  damages 
for  the  unprovoked  shooting  by  him  of  a 
negro.  Louisville  &  N.  R.  Co.  v.  Renfro, 
33:  133,  135  S.  W.  266,  142  Ky.  590. 

(Annotated) 
131.  The  liability  or  nonliability  of  the 
carrier  of  passengers  for  hire  for  an  injury 
inflicted  upon  a  passenger  carried,  by  rea- 
son of  a  third  person  making  an  unpro- 
voked assault  upon  him,  depends  upon  the 
presence  or  absence  of  evidence  chowing  the 
employees  of  the  carrier  either  knew,  or  by 
the  exercise  of  due  care  should  have  known, 
from  all  the  attendant  facts  and  circum- 
stances of  the  particular  case,  that  injury 
to  the  passenger  carried  was  threatened  or 
impending,  and  which  injury,  by  the  exer- 
cise of  that  high  degree  of  care  which  the 
law  requires  of  a  carrier  of  passengers  for 
their  safety  and  protection,  thus  being  fore- 
seen, might  have  been  guarded  against. 
Brown  v.  Chicago,  R.  I.  &  P.  R.  Co.  2:  105, 
139  Fed.  972,  72  C.  C.  A.  20.  (Annotated) 
By  employees. 
Punitive  damages  for,  see  Damages,  78-81, 

90. 
Recovery  for  mental  suffering,  see  Damages, 

613.  • 

Abusive  language  as  justification  for  kill- 
ing passenger,  see  Death,  43. 
Presumption  of  ratification:    of    employee's 

act,  see  Evidence,  188. 
Evidence  in  action  for  generally,  see  Evi- 
dence, 1966. 
Evidence  in  mitigation  of  damages  for,  see 
Evidence,  2012. 


CARRIERS,  II.  e. 


359 


Assault  on  consignee  of  freight  by  delivery 
clerk,  see  Master  and  Servant,  959. 

As  to  killing  of  bystander  by  drunken  con- 
ductor shooting  at  passenger,  see  Mas- 
ter and  Servant,  975. 

Liability  of  manager  of  company  for  kill- 
ing of  intending  passenger  by  servant, 
see  Master  and  Servant,  1043. 

Sufficiency  of  defendant's  pleading  in  action 
for,  see  Pleading,  466. 

Question  for  jury  in  action  for,  see  Trial, 
289. 

Question  for  jury  as  to  carrier's  liability 
for  killing  passenger,  see  Trial,  247. 

Cross-examination  of  witnesses  in  action 
for,  see  Witnesses,  86. 

See  also  supra,  110,  119 ;  infra,  218,  219. 

132.  A  railroad  company  is  liable  for  an 
assault  by  its  station  agent  upon  a  passen- 
ger waiting  in  the  station  to  take  a  train, 
although  it  grew  out  of  a  discussion  con- 
cerning business  in  which  the  railroad  com- 
pany was  rn  no  way  interested.  Neville  v. 
Southern  R.  Co.  40:  995,  146  S.  W.  846,  126 
Tenn.  96.  (Annotated) 

133.  A  railroad  company  is  liable  to  the 
extent  of  compensatory  damages  for  in- 
juries inflicted  upon  a  passenger  by  an  in- 
sane conductor  in  charge  of  the  train  on 
which  the  passenger  is  riding.  Chesapeake 
&  O.  R.  Co.  V.  Francisco,  42:  83,  148  S.  W. 
46,  149  Ky.  307. 

134.  A  carrier  is  not  liable  for  an  assault 
on  a  former  passenger  after  he  has  left  the 
car,  by  its  conductor,  for  what  had  tran- 
spired on  the  car,  or  for  insults  offered  after 
the  passenger  had  left  it.  Jackson  v.  Old 
Colony  Street  R.  Co.  30:  1046,  92  N.  E.  Ko, 
206  Mass.  477. 

135.  A  carrier  is  liable  in  damages  for  as- 
sault and  battery  where  its  brakeman  and 
station  agent  assist  in  making  an  unjusti- 
fied arrest  of  a  passenger,  and  removing 
him  from  the  train.  Hull  v.  Boston  &  M.  R. 
Co.  36:  406,  96  N.  E.  58,  210  Mass.  159. 

136.  An  assault  by  the  conductor  upon  a 
passenger  who  is  leaving  the  car  at  his 
command  without  resistance  is  unjustifi- 
able, and  will  render  the  carrier  liable  for 
the  consequences  of  it.  Jackson  v.  Old 
Colony  Street  R.  Co.  30:  1046,  92  N.  E.  725, 
206  Mass.  477. 

137.  A  railroad  company  is  not  liable  for 
the  unprovoked  shooting,  without  justifica- 
tion, of  a  passenger  while  in  the  act  of 
leaving  the  train  and  station,  by  a  police- 
man in  its  employ  and  on  duty  at  the  sta- 
tion. Berryman  v.  Pennsvlvania  R.  Co. 
30:  1049,  77  Atl.  1011,  228  Pa.  621. 

138.  A  railroad  company  is  not  liable  for 
the  act  of  its  police  officer  in  wilfully  and 
maliciously  inflicting  injury  upon  one  whom 
he  is  attempting  to  arrest  for  a  justifiable 
cause,  while  he  is  in  the  act  of  leaving  the 
company's  train.  Berryman  v.  Pennsvl- 
vania R.  Co.  30:  1049,  77  Atl.  1011,  228  Pa. 
621. 

139.  Offensive  language  addressed  by  a 
passenger,  whom  the  carrier  is  bound  to 
protect,  to  its  conductor,  is  no  justifica- 
tion for  an  assault  on  him  by  the  conduc- 
tor which  will  absolve  the  carrier  from  lia- 
Bigest   1-52  I..R.A.(N.S.) 


bility  for  the  consequences  of  the  assault. 
Jackson  v.  Old  Colony  Street  R.  Co. 
30:  1046,  92  N.  E.  725,  206  Mass.  477. 

140.  The  mere  fact  that  a  conductor  is 
angered  by  words  or  conduct  of  a  passen- 
ger does  not  absolve  the  carrier  from  lia- 
bility for  his  assault  upon  hrm,  if  the  words 
were  not  sufficient  to  justify  the  act,  but, 
if  the  passenger's  conduct  is  such  as  to 
justify  the  assault,  the  carrier  is  not  liable; 
and,  if  jt  was  sufficient  to  mitigate  the  con- 
ductor's act,  the  mitigation  inures  to  the 
benefit  of  the  carrier.  Mason  v.  Nashville, 
C.  &  St.  L.  R,  Co.  33:  280,  70  S.  E.  225,  135 
Ga.  741.  (Annotated) 

141.  A  carrier  is  not  liable  for  an  assault 
upon  one  passenger  by  pushing  another 
against  him  if,  without  provocation,  the 
one  pushed  assaulted  the  conductor,  who, 
using  no  more  force  than  was  or  reason- 
ably appeared  to  be  necessary,  repelled  the 
attack,  and  in  so  doing  pushed  him  against 
the  complaining  passenger.  Chesapeake  & 
O.  R.  Co.  V.  Robinett,  45:  433,  152  S.  W. 
976,  151  Ky.  778. 

142.  A  railroad  company  is  not  liable 
for  the  act  of  a  station  porter  who  boards 
a  train  and  makes  an  assault  on  a  through 
passenger  traveling  thereon,  for  the  pur- 
pose of  satisfying  a  personal  grudge,  where 
its  other  servants  are  not  negligent  in 
failing  to  anticipate  and  prevent  the  as- 
sault. Houston  &  T.  C.  R.  Co.  v.  Bush, 
32:  1201,  133  S.  W.  245,  104  Tex.  26. 

(Annotated) 

143.  A  railroad  company  is  not  liable 
for  an  assault  by  the  crew  of  a  freight 
train  upon  one  who  had  been  a  trespasser 
upon  it  but  had  left  it,  and  who  was  not 
attempting  to  return  to  it,  incited  by  the 
fact  that  they  thought  he  had  undone  a 
coupling,  so  as  to  break  the  train  in  two, 
requiring  it  to  stop.  Cincinnati,  N.  O.  & 
T.  P.  R.  Co.  V.  Rue,  34:  200,  134  S.  W.  1144, 
142  Ky.  694.  (Annotated) 

144.  The  conductor  of  a  street  car  may 
lay  hands  on  the  person  of  one  attempting 
to  board  the  car,  to  become  a  passenger, 
after  it  is  in  motion,  and  use  sufficient 
force  to  prevent  his  doing  so.  Sullivan  v. 
Boston  Elev.  R.  Co.  21 :  36,  84  N.  E.  844, 
199  Mass.  73. 

145.  The  conductor  of  a  street  car  may 
use  such  force  as  is  reasonably  necessary  to 
prevent  persons  boarding,  to  become  passen- 
gers thereon,  a  car  which  is  not  running  for 
the  accommodation  of  passengers,  but  is 
merely  going  to  the  barn.  Sullivan  v.  Bos- 
ton Elev.  R.  Co.  21:  36,  84  N.  E.  844.  199 
Mass.  73.  (Annotated) 

146.  A  street  car  company  is  not  liable 
for  an  assault  by  its  motorman  upon  a  pas- 
senger who  has  left  the  car  to  stop  a  fight 
between  the  conductor  and  a  person  who 
has  been  ejected  from  the  car.  Zeccardi  v. 
Yonkers  R.  Co.  17:  770,  83  N.  E.  31,  190  N. 
Y.  389. 

147.  A  street  car  company  is  liable  for 
the  act  of  one  employed  to  care  for  its  cars, 
who  unlawfully  assaults  a  passenger  while 
attempting  to  eject  him  from  the  car  at  the 
express  or  implied  request  of  the  conductor. 


360 


CARRIERS,  II.  f. 


but  not  if  his  act  is  of  his  own  volition,  and 
beyond  the  scope  of  his  employment.  Mills 
V.  Seattle,  K.  &  S.  R.  Co.  19:  704,  96  Pac. 
520,  50  Wash.  20. 

148.  A  street  railway  company  is  liable 
for  the  death  of  a  boy  whom  the  motorman 
in  charge  of  the  car  has  received  for  trans- 
portation to  the  police  station,  where  he 
refuses  to  permit  him  to  leave  the  car,  and 
in  attempting  to  restrain  him  from  doing 
so  the  boy  falls  under  the  wheels  and  is 
killed,  since  the  boy,  being  a  passenger,  is 
entitled  to  treatment  as  such,  and  to  have 
the  car  stopped  at  his  request  to  give  him 
an  opportunity  safely  to  alight.  Lewis  v. 
Bowling  Green  R.  Co.  39:  929,  144  S.  W.  377, 
147  Ky.  460. 

149.  One  who  fails  to  secure  a  transfer 
on  a  street  car,  to  which  he  considers  him- 
self entitled,  cannot  recover  damages  from 
the  company  for  assault,  for  injuries  in- 
flicted upon  him  by  the  company's  em- 
ployees in  ejecting  him  from  the  connect- 
ing car  by  the  use  of  no  more  than  neces- 
sary force,  for  refusal  to  pay  fare  or  leave 
the  car  upon  request.  Kirk  v.  Seattle  Elec- 
tric Co.  31:  991,  108  Pac.  604,  58  Wash.  283. 

/.  Arrest;  false  imprisonment. 

(See  also   Carrier,   II.   a,   S,   d,   in   Digest 
L.R.A.  1-70.) 

Duty  of  passenger  to  submit  to  arrest,  see 
Obsteucting  Justice,  8. 

By  employees. 

Exemplary  damages  for,  see  Damages,  82. 
Evidence   on   question   of   damages  for,   see 

Evidence,  1744. 
Evidence  as  to   authority  of   conductor  to 

cause  arrest,  see  Evidence,  2018. 
Arrest    of    one    other    than  passenger,  see 

False  Imprisonment,  11,  21. 
General  denial  in  action  for,  see  Plbiading, 

486. 
Instructions  in  action  for,  see  Trial,  871, 

1027. 
See  also  supra,  135,  138. 

150.  A  carrier  is  liable  for  false  im- 
prisonment, which  detains  an  injured  pas- 
senger against  his  will  and  prevents  his 
being  taken  immediately  where  he  can  se- 
cure relief,  in  order  to  secure  from  him 
a  statement,  although  the  result  is  pro- 
duced merely  by  wrongfuly  telling  him 
that  the  law  requires  the  statement  to  be 
made.  Whitman  v.  Atchison,  T.  &  S.  F.  R. 
Co.  34:  1029,  116  Pac.  234,  85  Kan.  150. 

151.  A  railroad  company  is  liable  for 
false  imprisonment,  if  its  conductor,  when 
directing  officers  to  arrest  a  disorderly  pas- 
senger, causes  him  to  lock  up  another  pas- 
senger who  merely  witnossed  the  disorder, 
as  a  witness  against  the  guilty  party.  New 
York,  P.  &  N.  R.  Oo.  v.  Waldron,  39:  502, 
82  Atl.  709,  116  Md.  441.  (Annotated) 

152.  Express  authority  to  a  conductor  to 
cause  the  arrest  and  detention  of  a  witness 
to  disorderly  conduct  on  the  train  is  not 
necessary  to  render  a  railroad  company  lia- 
ble for  such  arrest  and  detention  of  a  pas- 
senger, as  a  witness  against  a  passenger 
Digest  1-52  L.B.A.(N.S.) 


whom  the  conductor,  while  acting  wiLhin 
the  line  of  his  duty,  caused  to  be  arrested. 
New  York,  P.  &  ij.  R.  Co.  v.  Waldron,  39: 
502,  82  Atl.  709,  116  Md.  441. 

153.  A  railroad  company  is  not  liable  for 
the  wrongful  arrest  by  its  conductor,  with 
authority  to  arrest  persons  intoxicated  or 
raising  a  disturbance  on  trains,  and  its 
special  agent,  with  authority  to  arrest  per- 
sons committing  wrongs  against  its  prop- 
erty, of  a  person  stealing  a  ride  on  a  train 
whom  they  suspect  of  having  murdered  a 
person  whose  body  was  found  on  the  track 
after  the  train  had  passed.  St.  Louis,  I.  M. 
&  S.  R.  Co.  V.  Sims,  44:  1156,  152  S.  W.  985, 
106  Ark.  109. 

154.  A  railroad  company  is  liable  for  the 
arrest  of  a  passenger  on  a  false  charge  of 
larceny  of  a  watch  fob,  by  the  auditor  in 
charge  of  its  train,  whether  he  was  acting 
in  the  scope  of  his  authority  in  securing 
the  arrest  or  not,  since  its  obligation  to- 
wards the  passenger  includes  protection 
from  intentional  ill  treatment  from  the 
agents  in  charge  of  its  train.  Moore  v. 
Louisiana  A.  R.  Co.  34:  299,  137  S.  W. 
826,  99  Ark.  233.  (Annotated) 

155.  A  passenger  who,  upon  notification 
by  the  conductor  of  a  rule  requiring  him  to 
place  a  dog  in  his  possession  in  the  baggage 
car  and  pay  fare  for  it,  refuses  to  do  so, 
does  not  subject  himself  to  arrest  without 
warrant,  under  a  statute  permitting  such 
arrest  of  passengers  who  refuse  to  pay  fare. 
Hull  V.  Boston  &  M.  R.  Co,  36:  406,  96  N.  E. 
58,  210  Mass.  159. 

156.  A  carrier  is  answerable  for  the  ar- 
rest without  justification  of  a  passenger  by 
its  conductor,  whether  he  acted  as  its  serv- 
ant or  as  a  special  police  officer.  Hull  v. 
Boston  &  M.  R.  Co.  36:406,  96  N.  E.  58, 
210  Mass.  159. 

157.  A  passenger  conductor  who  caused 
the  arrest  of  a  person  a  few  moments  after 
lie  alighted  from  a  train  and  while  still  at 
the  railroad  station,  by  virtue  of  a  statute 
making  it  a  crime  publicly  to  drink  or 
oflFer  to  another  any  intoxicating  beverage 
upon  a  passenger  train,  and  conferring  po- 
lice powers  upon  every  passenger  conductor, 
and  making  it  his  duty  while  thus  engaged 
to  arrest  any  person  violating  the  provisions 
of  the  statute,  is  in  so  doing  acting  for 
the  state  and  not  for  the  railroad  com- 
pany, and  therefore  the  company  is  not 
liable  for  his  act;  and  it  is  immaterial 
whether  or  not  at  the  time  of  the  arrest 
the  status  of  the  person  as  a  passenger  had 
ceased.  Houston  v.  Minneapolis  St.  P.  &  S. 
Ste.  M.  R.  Co.  46:  589,  141  N.  W.  994,  29 
N.  D.  469. 

158.  A  railroad  company  is  not  liable  for 
the  acts  of  a  special  police  officer  appointed 
as  provided  by  the  Nebraska  statute,  and 
in  its  pay,  in  wrongfully  arresting  and 
prosecuting  a  person  for  the  alleged  shoving 
of  such  officer's  wife  while  she  was  engaged 
in  conversation  at  the  company's  station, 
where  the  arrest  was  not  directed  or  in- 
stigated by  it,  and  in  no  way  affected  its 
rights  or  property,  although  the  plaintiff 
was  rightfully  in  the  station,  having  a  ticket 
and  awaiting  the  arrival  of  a  train.    McKain 


CARRIERS,  II.  g.  1. 


3G1 


V.  Baltimore  &  O.  R.  Co.  23:  289,  64  S.  E. 
18,  65  VV.  Va.  233. 
By  police   officer. 

Liability  of  officer  arresting  passenger,  see 

Arrest,  2,  12. 
Special  police  officer  as  servant  of  railroad, 

see  Master  and  Servant,  37-41. 
Arrest  of  passenger  without  warrant  as  an 

unlawful     seizure,     see     Search     and 

Seizure,  13. 
See  also  supra,  156,  157,  158. 

159.  A  railroad  company  is  not  liable  in 
damages  to  one  arrested  by  a  police  officer 
while  a  passenger  on  its  train,  because  the 
oonductor  pointed  him  out  to  the  officer 
and  did  not  attempt  to  interfere  with  the 
arrest,  where  the  officer  had  apparent  au- 
thority to  make  the  arrest.  Mayfield  v. 
St.  Louis,  I.  M  &  S.  R.  Co.  32:  525,  133  S. 
W.    168,    97    Ark.   24.  (Annotated) 

160.  A  street  railway  company  is  liable 
in  damages  for  a  wrongful  arrest  due  to  the 
act  of  its  conductor,  who  mistakenly  point- 
ed out  a  respectable  passenger  as  a  pick- 
pocket to  a  police  officer,  under  La.  Civ. 
Code,  art.  2324,  declaring  that  one  who 
causes  another  person  to  do  an  unlawful  act, 
or  assists  or  encourages  the  commission  of 
it,  is  responsible  in  solido  with  that  person 
for  the  damages  occasioned  by  the  act. 
Schmidt  v.  New  Orleans  R.  Co.  7:  162,  40 
So.  714,  116  La.  311.  (Annotated) 

161.  Neither  the  failure  of  a  street  rail- 
way company  to  give  its  conductors  full  and 
specific  instructions,  nor  the  placing  of  re- 
strictions upon  the  extent  of  their  authority, 
nor  enjoining  them  to  perform  their  duties 
cautiously,  prudently,  and  well,  will  relieve 
it  from  liability  for  the  wrongful  arrest  of 
a  passenger,  made  at  the  instance  of  a  con- 
ductor who  mistakenly  pointed  out  a  re- 
spectable person  as  a  pickpocket.  Schmidt 
V.  New  Orleans  R.  Co.  7:  162,  40  So.  714, 
116  La.  311.  (Annotated) 

162.  The  Pullman  sleeping  car  company 
is  not  guilty  of  actionable  negligence  in  fail- 
ing to  make  any  objection  to,  or  take  any 
action  to  prevent,  the  arrest  of  a  negro  in- 
terstate passenger  and  his  removal  from  one 
of  its  coaches  upon  the  entry  of  the  train 
containing  the  coach  into  a  state  having  a 
separate  coach  law, — which,  however,  can 
have  no  application,  because  the  negro  was 
an  interstate  passenger, — by  officers  of  that 
state  who  had  been  notified  by  the  con- 
ductor of  the  train,  to  the  knowledge  of 
the  Pullman  conductor,  that  the  negro  was 
riding  in  the  car  set  apart  for  whites. 
Thompkins  v.  Missouri,  K,  &  T.  R.  Co.  52: 
791,  211  Fed.  391,  128  C.  C.  A.  1. 

(Annotated) 

g.  Measure    of    care    required;    negli- 
gence generally. 

1.  Of  carrier, 

a.  In  general. 

(See  also  Carriers,  II.  a,  Jf,  a  (1)  in  Digest 
L.R.A.  1-10.) 

Fault  of  passenger  as  defense  in  action  for 

injury,  see  Action  or  Suit,  40. 
Digest  1-52  I^R.A.(N.S.) 


Joint  action  against  owner  of  track  and 
other  company  using  track  under 
license,  see  Action  or  Sixit,  118. 

Appeal  in  action  for  injury  to  passenger, 
see  Appeal  and  Error,  525. 

Right  of  carrier  to  contribution  from  ex- 
press company  primarily  responsible 
for  accident,  see  Contribution  and  In- 
demnity,  17. 

Report  to  carrier  by  agent  as  to  accident  as 
confidential  communication,  see  Dis- 
covery and  Inspection,  14. 

Passenger's  right  to  sue  in  tort  for  in- 
juries, see  Election  of  Remedies,  14. 

Meaeure  of  care  required  in  operating  ele- 
vator, see  Elevators. 

Skidding  of  vehicle  as  evidence  of  carrier's 
negligence,  see  Evidence,  343. 

Judicial  notice  of  failure  to  provide  ade- 
quate accommodations  for  passengers, 
see  Evidence,  39. 

Presumption  and  burden  of  proof  as  to 
negligence,  see  Evidence,  II.  h,  1,  b  (1) 

Admissibility  of  evidence  in  action  for  in- 
juries, see  Evidence,  823,  1086,  1521, 
1875. 

Error  in  admission  of  evidence,  see  Appeal 
AND  Error,  1105. 

Sufficiency  of  proof  of  negligence,  see  Evi- 
dence, 2145-2149, 

Sufficiency  of  evidence  to  justify  inference 
as  to  cause  of  accident,  see  Evidence, 
2059. 

Variance  between  pleading  and  proof  in 
action  for  injury  to  passenger,  see  Evi- 
dence, 2479,  2498-2501. 

Release  by  passenger  from  liability  for 
injury,  see  Evidence,  2088. 

Injury  to  patron  in  dining  car,  by  unfit 
food,  see  Food,  21. 

Husband's  right  of  action  for  injury  to 
wife,  see  Husband  and  Wife,  152,  153. 

Injury  to  person  being  conveyed  to  pest 
house  under  contract  between  carrier 
and  county  court,  see  Parties,  57. 

Pleading  in  action  for  injury,  see  Plead- 
ing, 33,'  34. 

Relief  under  pleadings,  see  Pleading,  82, 
83. 

Allegations  as  to  negligence,  see  Pleading, 
290-295. 

Proximate  cause  of  injury,  see  Proximate 
Cause,  III. 

Liability  to  passenger  for  negligence  of 
lessor  of  railroad,  see  Railroads,  13, 

Excluding  from  evidence  lease  of  road  in 
action  against  carrier  for  injury,  see 
Evidence,  791. 

Question  for  jury  as  to  cause  of  injury  to 
passenger,  see  Trial,  174,  175. 

Sufficiency  of  evidence  to  take  case  to  jury, 
see  Trial,  139,  140. 

Question  for  jury  as  to  negligence,  see 
Trial,  II.  c,  8,  b  ( 1 ) , 

Direction  of  verdict  in  action  for  injury,  see 
Trial,  786,  769. 

Necessity  or  propriety  of  instructions  gen- 
■     erally,  see  Trial,  902-905. 

Error  in  refusal  of  instruction,  see  Appeal 
and  Error,  1413,  1414. 

Correctness  of  instructions  as  to,  generally, 
see  Trial,  1050-1054. 


362 


CARRIERS,  11.  g.  1. 


Prejudicial  error  in  instructions,  see  Ap- 
peal AND  Error,  1321,  1346,  1347. 

Correctness  of  verdict  in  action  for  injury 
to  passenger,  see  Trial,  1125. 

See  also  infra,  305. 

163.  A  carrier  of  passengers  is  not  an 
insurer  of  their  safety,  but  is  bound  only 
to  exercise  reasonable  care  and  diligence. 
East  Indian  R.  Co.  v.  Mukerjee,  3  B.  R.  C. 
420,  [1901]  A,  C.  396.  Also  Reported  in 
70  L.  J.  P.  C.  N.  S.  63,  84  L.  T.  N.  S.  210, 
17  Times  L.  R.  284. 

164.  If  a  duty  of  protecting  a  passenger 
on  board  of  a  railway  train  arises,  either 
in  the  ordinary  couree  of  business  or  under 
special  circumstances,  the  measure  of  dili- 
gence required  to  be  exercised  by  the  car- 
rier is  extraordinary  care.  Central  of 
Georgia  R.  Co.  v.  Madden,  31:  813,  69  S.  E. 
165,   135  Ga.  205. 

165.  A  passenger  on  a  railroad  train  may 
recover  damages  for  inconvenience  and  in- 
jury suffered  by  failure  of  the  carrier  to  ex- 
ercise toward  her  that  degree  of  care  which 
is  due  to  a  passenger.  Gulf,  C.  &  S.  F.  R. 
Co.  V.  Overton,  19:  500,  110  S.  W.  736,  101 
Tex.  583. 

166.  A  railroad  company  owes  to  a  pas- 
senger, approaching  a  train  which  he  in- 
tends to  board,  the  duty  of  exercising  only 
reasonable  care  for  his  protection.  Pere 
Marquette  R.  Co.  v.  Strange,  20:  1041,  84 
N.  E.  819,  171  Ind.  160. 

167.  A  street  railway  company  is  not  an 
insurer  of  its  passengers,  nor  bound  to  do 
everything  that  can  be  done  to  insure  their 
safety,  but  it  fulfils  its  obligations  in  that 
regard  when  it  exercises  the  utmost  skill, 
diligence,  and  foresight  consistent  with  the 
practical  conduct  of  the  business  in  which 
it  is  engaged.  Omaha  Street  R.  Co.  v. 
Boesen,  4:  122,  105  N.  W.  303,  74  Neb.  764. 

( Annotated ) 

168.  A  street  car  company  is  not  bound 
to  exercise  towards  passengers  the  utmost 
care  and  diligence  in  guarding  against  those 
injuries  which  can  be  avoided  by  human 
foresight,  but  only  the  highest  degree  of  care 
which  is  consistent  with  the  practical  carry- 
ing on  of  its  business.  Pitcher  v.  Old  Colony 
Street  R,  Co.  13:  481,  81  N.  E.  876,  196 
Mass.  69. 

169.  In  order  to  render  a  street  railway 
company  liable  for  injuries  received  by  a 
person  traveling  upon  one  of  its  cars,  the 
negligence  of  its  servants,  either  alone  or 
in  concurrence  with  the  negligence  or  wrong- 
ful act  of  other  persons,  must  be  the  prox- 
imate cause  of  the  injuries.  Bevard  v. 
Lincoln  Traction  Co.  3:  318,  105  N,  W.  635, 
74  Neb.  802. 

170.  A  street  car  con^pany  which  under- 
takes to  give  a  convention  of  women  dele- 
gates visiting  the  city  a  free  ride  over  its 
lines  by  the  use  of  its  cars  under  the  con- 
trol of  its  servants  is  bound  to  use  at  least 
ordinary  care,  and  is  liable  for  injuries  re- 
sulting to  them  from  its  failure  to  do  so. 
Indianapolis  Traction  &  T.  Co.  v.  Lawson, 
5:  721,  143  Fed.  834,  74  C.  C.  A.  630. 

(Annotated) 
Digest  1-52  I<.R.A.(N.S.) 


171.  An  electric  railway  company  is  not 
answerable  for  injury  to  a  passenger  of  un- 
usual size,  due  merely  to  the  coiiductor's 
assent  to  the  proposition  and  failure  to 
warn  him  when  he  announces  his  intention 
to  change  his  seat  by  means  of  the  running 
board  of  a  moving  car,  of  the  danger  from 
trolley  poles  located  so  near  the  track  that 
the  passenger's  body  cannot  pass  between 
them  and  the  car,  although  the  passenger  is 
not  familiar  with  the  road,  if  tliat  fact  is 
not  known  to  the  conductor.  Tietz  v.  In- 
ternational R.  Co.  10:  357,  78  N.  E.  1083,  186 
N.   Y.  347. 

172.  A  street  car  company  may  be  liable 
for  injury  to  a  passenger  encumbered  with 
a  small  child,  who  is  prevented  from  leav- 
ing the  car  at  the  terminal  by  a  boisterous 
crowd  surging  into  the  car,  and  injured  by 
the  turning  of  a  seat  against  her,  where  the 
employees,  although  having  notice  of  the 
probability  of  a  rush  to  board  the  car,  make 
no  attempt  to  protect  her;  and  it  is  imma- 
terial that  the  terminal  is  in  a  public 
street  rather  than  in  its  own  station.  Glen- 
nen  v.  Boston  Elevated  R.  Co.  32:  470,  93 
N.  E.  700,  207  Mass.  497.         (Annotated) 

173.  A  railroad  company  which,  for  pur- 
poses of  its  own,  runs  a  passenger  train 
beyond  a  station  where  passengers  are  to 
alight,  into  its  yards,  is  bound  to  inform 
them  of  its  intention  to  return  and  give 
them  an  opportunity  to  alight  at  the  sta- 
tion, and  is  liable  for  all  damages  proxi- 
mately caused  to  them  by  its  failure  so  to 
do.  Natchez,  C.  &  M.  R.  Co.  v.  Lambert, 
37:  264,   54  So.  836,  99  Miss.  310. 

174.  The  rule  requiring  a  carrier  to  ex- 
ercise the  utmost  care  and  diligence  to  pro- 
tect passengers  from  injury  applies  to 
render  him  liable  for  injury  to  a  passenger 
by  the  breaking  of  a  window  pane  by  a  mis- 
sile thrown  in  sport  by  the  conductor  of 
another  car  at  the  motorman  in  charge  of 
the  one  upon  which  the  passenger  is  riding. 
Hayne  v.  Union  Street  R.  Co.  3:  605,  76  N. 
E.  219,  189  Mass.  551.  (Annotated) 

175.  The  conductor  is  not  bound  to  stop 
a  car  between  stations  in  a  subway  to  per- 
mit a  passenger  to  alight  to  recover  prop- 
erty accidentally  dropped  from  the  car, 
where ,  to  do  so  would  involve  risk  of  col- 
lision and  place  the  passengers  in  peril. 
Bursteen  v.  Boston  Elevated  R.  Co.  39:  313, 
98  N.  E.  27,  211  Mass.  459.  (Annotated) 

176.  A  conductor  who  has  been  instructed 
by  the  carrier  to  obtain  statements  from 
injured  passengers  acts  within  the  scope 
of  his  authority  in  wrongfully  detaining  a 
passenger,  to  get  a  statement,  so  as  to 
render  the  carrier  liable  for  the  injury  re- 
sulting therefrom.  Whitman  v.  Atchison, 
T.  &  S.  F.  R.  Co.  34:  1029,  116  Pac.  234, 
85  Kan.   150. 

177.  A  carrier  whose  conductor  induces 
an  injured  person  to  remain  fifteen  or 
twenty  minutes  to  make  a  statement  which 
he  wrongfully  informs  him  the  law  requires 
him  to  get,  before  being  taken  to  a  place 
where  he  can  receive  attention,  is  liable 
for  the  damages  necessarily  and  proximate- 
ly resulting  therefrom.    Whitman  v.  Atchi- 


CARRIERS,  II.  g,  1. 


363 


son,   T.  &   S.   F.   R.   Co.   34:  1029,   116   Pac. 
234,  85  Kan.  150. 

178.  The  operator  of  a  scenic  railway  is 
bound  to  use  the  liighest  degree  of  care  and 
caution  for  the  safety  of  its  patrons,  and 
do  all  that  human  care  and  foresight  can 
reasonably  do,  consistent  witli  the  mode  of 
conveyance  and  the  practical  operation  of 
the  railway,  to  prevent  accidents  to  patrons 
while  riding  in  its  cars.  O'Callaglian  v.  Dell- 
wood  Park  Co.  26:  1054,  89  N.  E.  1005,  242 
III.    336.  (Annotated) 

179.  One  who  goes  upon  a  railroad  car 
merely  for  tlie  purpose  of  meeting  and 
erecting  friends  or  relatives,  or  seeing 
strangers  who  are  passengers  on  the  train, 
with  no  idea  or  purpose  of  rendering  assist- 
ance to  them,  is,  if  he  acts  under  permis- 
sion from  the  carrier,  a  more  licensee,  to 
wiiom  the  carrier  owes  no  alBrmative  duty 
of  care.  Arkansas  &  L.  R.  Co.  v.  Sain, 
22:  910,    119   S.   W.   659,   90  Ark.   278. 

(Annotated) 

180.  A  boy  about  eleven  years  of  age  who 
is  sent  by  his  father  to  deliver  a  package 
to  a  passenger  on  a  train  which  is  expected 
to  stop  at  the  station  is  rightfully  on  the 
premises  of  the  railroad  company,  and  en- 
titled to  be  protected  at  least  by  the  exer- 
cise of  ordinary  care  while  engaged  in  de- 
livering the  package  and  returning  to  the 
station  platform.  Atchison,  T.  &  S.  F.  R. 
Co.  V.  McElroy,  13:  620,  91  Pac.  785,  76  Kan. 
271. 

181.  A  boy  who  goes  upon  the  platform  of 
a  car  as  a  trespasser  cannot  hold  the  com- 
pany liable  for  injuries  due  to  a  sudden 
movement  of  the  train,  merely  because  his 
presence  was  known  to  the  railroad  employ- 
ees, if,  at  the  time  they  knew  of  his  pres- 
ence, he  was  not  in  peril,  and  they  did  not 
discover  his  peril,  which  arose  from  the 
movement  of  the  cars,  in  time  to  avoid  in- 
jury to  him.  Arkansas  &  L.  R.  Co.  v. 
Sain,  22:  910,  119  S.  W.  659,  90  Ark.  278. 

182.  One  who  goes  upon  a  railroad  car 
to  transact  business  of  his  own  with  a 
passenger  is  a  mere  trespasser,  to  whom 
the  railroad  company  owes  merely  the  duty 
not  wilfully  or  wantonly  to  injure  him,  or 
negligently  to  do  so  after  discovering  that 
lie  is  in  peril,  McElvane  v.  Central  of 
Georgia  R.  Co.  34:  715,  54  So.  489,  170  Ala. 
525.  (Annotated) 

184.  A  railroad  company  is  under  no 
duty  to  stop  a  train  which  is  leaving  a 
station,  to  enable  a  person  who  has  tres- 
passed upon  it  to  get  oIF,  McElvane  v. 
Central  of  Georgia  R.  Co.  34:  715,  54  So. 
489,  170  Ala.  525. 

Person  riding  in  locomotive  cab. 

185.  One  riding  on  the  engine  of  a  train 
under  circumstances  such  that  his  presence 
there  could  not  reasonably  be  anticipated 
by  the  employees  or  officers  of  the  road 
other  than  those  in  charge  of  the  engine 
cannot  hold  the  railroad  company  liable 
for  injuries  received  through  a  head-on 
collision  due  to  unintentional  acts  of  those 
in  charge  of  another  train,  although  per- 
mitting the  collision  may  have  been  neg- 
ligent towards  passengers  on  the  train  on 
Digest  1-52  I..R.A.(N.S.) 


which  he  was  riding,  since  they  owed  him 
no  duty,  and  therefore  were  not  negligent 
toward  him.  Garland  v.  Boston  &  M.  R. 
Co.  46:  338,  86  Atl.   141,  76  N.  H.  556. 

(Annotated) 

186.  A  switching  crew  is  not  guilty  of 
wantonness  or  recklessness  towards  a  pas- 
senger riding  in  an  engine  cab  because  it 
leaves  a  car  on  a  switch,  which  does  not 
clear  the  main  track,  where  it  does  not  know 
of  his  presence  in  the  cab;  nor  are  those  in 
charge  of  the  engine  guilty  of  such  negli- 
gence toward  him  when  they  do  not  know 
that  the  car  does  not  clear  the  track, — so  as 
to  render  the  railroad  company  liable  in 
case  he  is  injured  by  the  engine  coming  in 
contact  with  the  car.  Clark  v.  Colorado 
&  N.  W.  R.  Co.  19:  988,  165  Fed.  408,  91  C. 
C.  A.  358. 

Guidance  to  train. 

187.  A  railroad  company  is  not  bound  to 
guide  a  passenger  from  the  waiting  room  to 
his  train,  even  at  night,  where  he  is  a 
mature,  normal  man  of  experience,  and  the 
platform  is  in  good  condition,  lying  between 
the  waiting  room  and  the  train,  and  he 
discloses  no  circumstances  requiring  guid- 
ance. Pere  Marquette  R.  Co.  v.  Strange, 
20:  1041,  84  N.  E.  819,  171  Ind.  160. 

(Annotated) 

188.  An  attempted  guidance  of  passengers 
to  a  train  by  a  station  master,  who,  with  a 
light  in  his  hand,  takes  a  proper  place  on 
the  platform  and  calls  to  the  passengers  to 
come  to  him,  is  not  rendered  negligent  by 
the  fact  that  one  of  the  passengers  thinks 
that  the  call  comes  from  the  other  side  of 
the  track,  and  is  injured  in  attempting  to 
cross  it.  Pere  Marquette  R.  Co.  v.  Strange, 
20:  1041,  84  N.  E.  819,  171  Ind.  160. 

189.  Directions  by  an  employee  of  a  car- 
rier in  charge  of  a  car,  to  the  passengers,  as 
to  the  route  to  be  taken  in  passing  an  ob- 
struction to  reach  another  car,  which  is  to 
take  them  to  their  destination,  are  within 
the  apparent  scope  of  the  authority  of  such 
employee.  Killmeyer  v.  Wheeling  Traction 
Co.  48:  683,  77  S.  E.  908,  72  W.  Va.  148. 

190.  Where  a  passenger  acted  upon  the 
direction  of  the  employees  in  charge  of  a  car 
as  to  the  route  to  be  taken  in  passing  an 
obstruction  to  reach  another  car  which  was 
to  take  him  to  his  destination,  and  in  so 
doing,  was  injured  without  fault  on  his 
part,  the  railroad  company  is  liable  in  dam- 
ages for  such  injury.  Killmeyer  v.  Wheel- 
ing Traction  Co.  48:  683,  77  S.  E.  908,  72 
W.  Va.  148. 

191.  A  carrier  which,  in  transferring  its 
passengers  from  car  to  car  around  an  ob- 
struction, on  a  dark  night,  provides  neither 
light  nor  guide,  but  directs  the  passengers 
into  a  dark  path,  where  they  grope  their 
way  over  railroad  tracks,  piles  of  ore,  and 
other  obstructions,  is  guilty  of  negligence. 
Killmeyer  v.  Wheeling  Traction  Co.  48:  683, 
77  S.  E.  908,  72  W.  Va.  148. 

Failure    to    give    passenger    necessary 
information. 

192.  A  carrier  is  liable  to  a  passenger 
who  holds  a  through  ticket  over  its  road 
but  who  must  make  a  change  of  trains  to 


364 


CARRIERS,  II.  g,  1. 


reach  her  destination,  for  the  failure  and 
refusal  of  its  employees  to  inform  such  pas- 
senger, upon  her  repeated  requests  for  in- 
formation, of  the  place  where  such  change 
is  to  be  made,  by  reason  of  which  failure 
the  passenger  is  carried  past  her  destina- 
tion, and  is  required  to  take  passage  upon 
another  railroad  and  to  expend  an  addition- 
al sum  for  fare,  and  is  caused  to  suffer  a 
loss  of  time  and  certain  inconveuiences. 
Lilly  V.  St.  Louis  &  S.  F.  R.  Co.  39:  663,  122 
Pac.  502,  31  Okla.  521.  (Annotated) 

Abandoning  trip;  delay. 

193.  In  the  absence  of  a  special  contract, 
all  that  a  passenger  can  require  of  a  carrier 
is  that  due  diligence  be  used  so  that  he  shall 
not  be  delayed  for  an  unreasonable  time, 
and  that,  when  the  journey  hat,  been  once 
commenced,  the  carrier  shall  exercise  the 
same  diligence  in  prosecuting  the  journey 
with  reasonable  despatch  according  to  the 
mode  of  conveyance  and  the  particular 
circumstances  of  each  case.  Central  of 
Georgia  R.  Co.  v.  Wallace,  49:  429,  80  S.  E. 
282,  141  Ga.  51.  (Annotated) 

194.  A  carrier  is  not  liable  in  damages 
for  so  negligently  operating  its  train  that 
a  passenger  does  not  reach  his  destination 
in  time  to  be  able  to  vote  at  a  general  elec- 
tion. Morris  v.  Colorado  Midland  Jl.  Co. 
31:  1 106,  109  Pac.  430,  48  Colo.  147. 

(Annotated) 

195.  A  carrier  cannot  escape  liability  to 
a  passenger  for  laying  off  the  train,  by  rea- 
son of  which  he  is  delayed  on  the  road,  on 
the  theory  that  it  is  necessary  to  prevent 
working  the  hands  more  than  sixteen  con- 
secutive hours,  in  violation  of  the  act  of 
Congress,  if  the  delay  which  prevented  its 
reaching  its  destination  within  the  sched- 
uled time  and  exhausted  the  allowable 
hours  of  labor  en  route  was  due  to  its  own 
negligence.  Black  v.  Charleston  &  W.  C. 
R.  Co.  31:  1 184,  69  S.  E.  230,  87  S.  C.  241. 

(Annotated) 
Person  boarding  train  at  closed  ves- 
tibule door. 

200.  A  railroad  company  owes  no  duty  to 
one  who,  in  violation  of  law,  attempts  to 
board  a  moving  train  at  a  closed  vestibule 
door,  until  his  position  of  danger  is  made 
known  to  employees  in  charge  of  the  train. 
Graham  v.  Chicago  &  N.  W.  R.  Co.  7:  603, 
107  N.  W.  595,  131  Iowa,  741.       (Annotated) 

201.  No  actionable  negligence  on  the  part 
of  a  railroad  company  is  shown  by  the  fact 
that  those  in  charge  of  a  vestibule  train, 
upon  receiving  notice  that  an  intending  pas- 
senger was  outside  of  a  closed  door  of  the 
moving  train,  attempted  to  rescue  him  by 
going  the  length  of  the  car  and  opening  the 
door,  rather  than  by  operating  the  emer- 
gency brakes.  Graham  v.  Chicago  &  N.  W. 
R.  Co.  7:  603,  107  N.  W.  595,  131  Iowa,  741. 
Injury  by  dog. 

202.  A  street  car  company  is  liable  for  in- 
juries inflicted  upon  a  passenger  by  a  dog 
permitted  to  be  in  a  coach  set  apart  for  pas- 
sengers. Westcott  V.  Seattle,  R.  &  S.  R. 
Co.  4:  947,  84  Pac.  588,  41   Wash.   618. 

(Annotated) 
Digest  1-52  I,.R.A.(N.S.) 


Fall  of  car  vvindoiv. 

Presumption  of  negligence  from  fall  of  win- 
dow, see  Evidence,  357,  358. 

203.  The  mere  fall,  shortly  after  the  car 
has  begun  to  move,  of  a  car  window,  not 
shown  to  have  been  opened  by  railroad 
employees,  to  tlie  injury  of  a  passenger,  is 
not,  in  the  absence  of  any  evidence  of  de- 
fect in  tlie  window  sash  or  fastening  de- 
vice, evidence  of  negligence  on  the  part  of 
tlie  carrier,  sufficient  to  charge  it  with  lia- 
bility for  tlie  injury.  Boucher  v.  Boston 
&  M.  R.  Co.  34:  728,  79  Atl.  993,  76  N.  H. 
91. 

Fall  of  baggage  from  rack. 
See  also  infra,  252. 

204.  That  hand  baggage  placed  by  its 
passengers  in  overhead  racks  provided  for 
it  by  the  railroad  company  is  not  under 
the  immediate  control  of  the  carrier  does 
not  relieve  it  from  liability  for  injury 
caused  by  the  fall  of  the  baggage  by  operat- 
ing the  train  in  such  a  way  as  to  render 
the  use  of  the  racks  in  the  manner  in  which 
they  were  intended  to  be  used  unsfife.  Ros- 
enthal v.  New  York,  N.  H.  &  H.  R.  Ca 
51 :  775,  89  Atl.  888,  88  Conn.  65. 

205.  If  the  overhead  racks  provided  by  a 
railroad  company  for  baggage  are  so  con- 
structed that  it  is  not  safe  to  place  one 
suit  case  on  top  of  another  in  them,  which 
fact  is  not  apparent  to  the  ordinary  pas- 
senger, the  carrier,  to  avoid  liability  for 
injury  to  a  passenger  by  the  fall  of  a  case 
so  placed,  must  give  warning  as  to  tlie 
danger  in  such  use  of  the  rack.  Rosenthal 
V.  New  York,  N.  H.  &  H.  R.  Co.  51:  775, 
89  Atl.  888,  88  Conn.  65. 

Baggage  in  aisle. 

Evidence  of  custom  «f  passengers  to  place 
baggage  upon  floor,  see  Evidence,  3535. 

206.  A  railroad  company  may  be  liable  for 
injury  to  a  passenger  who,  in  attempting 
to  reach  a  seat  after  entering  the  car  at 
a  station,  falls  over  a  valise  projecting  into 
the  aisle,  if  the  light  in  the  car  is  so  dim 
that  the  obstruction  could  not  be  seen.  Bei- 
ser  V.  Cincinnati,  N.  O.  &  T,  P.  R.  Co,  43: 
1050,  153  S.  W.  742,  152  Ky.  522. 
Exposure  to  cold  or  inclement  ureath- 

er. 

207.  An  electric  railway  company  is  not 
liable  in  damages  for  failure  to  place  pas- 
sengers in  a  place  where  they  will  be  pro- 
tected from  the  cold  when  its  car  becomes 
stalled  by  a  snowstorm.  Prospert  v.  Rhode 
Island  Suburban  R.  Co.  11:  1142,  67  Atl, 
522,  28  R.  I.  367.  (Annotated) 

208.  A  railroad  company  is  liable  for  in- 
juries caused  by  exposure  to  inclement 
weather  to  one  whose  passage  to  a  station 
to  take  a  train  is  obstructed  for  an  unrea- 
sonable time  bv  standing  cars.  Ivouisville 
&  N.  R.  Co.  v.  Daugherty,  15:  740,  108  S.  W, 
336,  32  Ky.  L.  Rep.  1392.  (Annotated) 

209.  A  snowstorm  and  wind  wliich  so 
drifts  the  snow  over  the  switches  in  a  rail- 
road yard  that  they  cannot  be  operated 
from  the  tower,  and  cannot  be  dug  out  by 
the  available  men,  so  that  the  use  of  the 
yard  has  to  be  abandoned  to  such  an  ex- 
tent   that    an    incoming    train    cannot    ap- 


CARRIERS,  II.  g,  1. 


365 


proach  nearer  to  the  station  than  600  feet 
therefrom,  is  an  act  of  God  which  will 
relieve  the  carrier  from  liability  for  detain- 
ing passengers  at  tliat  point,  although  they 
are  thereby  compelled  to  remain  in  the  cold 
over  night.  Cormack  v.  New  York,  N.  H. 
&  H.  R.  Co.  24:  1209,  90  N.  E.  56,  196  N. 
Y.  442.  (Annotated) 

Collision. 
Question  for  jury  as  to    whether    collision 

caused  injury,  see  Trial,  174. 
Direction  of   verdict  in   action  for  injuries 

caused  by  collision,  see  Trial,  768. 

210.  A  common  carrier,  being  the  owner 
of  its  track,  is  liable  to  its  passenger  for 
an  injury  received  in  a  collision  between 
its  car  and  the  car  of  another  carrying  com- 
pany which  it  admits  to  the  joint  use  of  its 
track,  though  the  collision  may  result  whol- 
ly from  the  negligence  of  the  latter  com- 
pany. Maumee  Valley  R.  &  L.  Co.  v.  Mont- 
gomery, 26:  987,  91  N.  E.  181,  81  Ohio  St. 
426.  (Annotated) 

211.  With  respect  to  a  passenger  on  the 
car,  a  motorman  cannot  assume,  as  matter 
of  law,  that  one  driving  near  the  track 
ahead  of  the  car  will,  without  warning, 
maintain  his  course,  and  not  attempt  to 
drive  across  the  track.  Strong  v.  Burling- 
ton Traction  Co.  12:  197,  66  Atl.  786,  80  Vt. 
34. 

212.  A  motorman  in  charge  of  a  street 
car  is  not  negligent  to  a  passenger,  as 
matter  of  law,  merely  because  he  fq^ls  to 
sound  his  gong  to  warn  of  the  approach  of 
the  car,  one  driving  on  the  highway,  who 
turns  his  horse  across  the  path  of  the  car 
causing  a  collision  and  the  injury  of  the 
passenger.  Strong  v.  Burlington  Traction 
Co.   12:  197,  66  Atl.  786,  80  Vt.  34. 

( Annotated ) 

213.  An  electric  railway  company  cannot 
relieve  itself  from  liability  for  injury  to  a 
passenger  through  collision  between  its  cars, 
merely  by  showing  that  the  collision  was 
caused  by  an  obstruction  of  the  track 
caused  by  an  agency  over  which  it  had  no 
control,  without  showing  further  that  it 
could  not,  by  the  exercise  of  the  highest 
degree  of  care  and  diligence  consistent  with 
the  practical  operation  of  the  road,  have 
discovered  and  removed  -the  obstruction  in 
time  to  avoid  the  accident.  Walters  v. 
Seattle,  R.  &  S.  R.  Co.  24:  788,  93  Pac.  419, 
48  Wash.   233. 

Boulder  rolling  donen  monntain. 

215.  A  railroad  company  is  not  liable 
for  injury  to  a  passenger  by  a  boulder 
rolling  down  a  mountain  side,  if  ft  is  not 
shown  to  have  come  from  the  company's 
right  of  way,  and  no  negligence  is  shown 
on  the  part  of  the  company.  Northern 
P.  R.  Co.  V.  Le  Deau,  34:  725,  115  Pac.  502, 
19  Idaho,  711. 

216.  A  railroad  company  will  not  be  held 
liable  for  an  injury  inflicted  on  a  passen- 
ger by  reason  of  a  stone  rolling  down  the 
mountain  side  and  striking  the  passenger, 
unless  it  is  shown  that  the  company  had 
either  actual  notice  of  the  danger,  or  that 
the  place  or  immediate  locality  from  which 
Digest  1-52  I..B.A.(N.S.) 


the  rock  fell  was  so  obviously  dangerous 
as  to  impute  notice  of  the  danger  to  the 
railroad  company,  and  charge, it  with  neg- 
ligence in  failing  to  take  reasonable  pre- 
cautions to  prevent  an  injury  from  such 
cause.  Northern  P.  R,  Co.  v,  Le  Deau, 
34:  725,  115  Pac.  502,  19  Idaho,  711. 
Fright   of  passenger. 

217.  A  railroad  company  is  not  liable  for 
injury  to  a  pregnant  woman  from  sight  of 
a  lunatic  in  the  car  who  was  acting  strange- 
ly, where  its  employees  had  no  knowledge 
of  her  condition,  and  there  was  nothing  in 
the  conduct  of  the  lunatic  to  apprise  a 
person  of  ordinary  prudence  that  danger  to 
other  passengers  was  to  be  anticipated. 
Louisville  &  N.  R.  Co.  v.  Brewer,  39:  647, 
143  S.  W.  1014,  147  Ky.  166.      (Annotated) 

218.  A  carrier  which,  in  wrongfully  eject- 
ing a  passenger  from  the  train,  knocks  or 
throws  him  against  his  daughter  to  her  in- 
jury, is  liable  for  the  injury  and  fright 
which  may  result  to  her  therefrom.  Chesa- 
peake &  0.  R.  Co.  v.  Robinett,  45:  433,  152 
S.  W.  976,  151  Ky.  778. 

219.  A  carrier  is  not  liable  for  fright  of 
a  passenger  by  wrongfully  assaulting  her 
father,  and  ejecting  him.  from  the  train, 
in  her  presence,  and  leaving  her  to  pursue 
her  journey  alone,  Chesapeake  &  0.  R.  Co. 
v.  Robinett,  45:  433,  152  S.  W.  976,  151  Ky. 
778.  (Annotated) 
I<eaving    car   irindow^s    open. 

220.  A  railroad  company  does  not  break 
its  contract  to  carry  a  passenger  in  a  first- 
class  car  by  permitting  windows  to  be  open 
in  the  car  in  which  she  is  carried.  Louis- 
ville &  N.  R.  Co.  v.  Fisher,  11:  926,  155  Fed. 
68,  83  C.  C.  A.  584.  (Annotated) 
Quarantine. 

221.  When  a  railroad  company  is  fully  ad- 
vised of  a  quarantine  which  will  make  the 
uninterrupted  journey  of  a  passenger  im- 
possible, and  undertakes  through  its  con- 
ductor to  inform  him  on  the  subject  of  quar- 
antine, it  will  be  liable  for  the  consequences 
of  failing  to  inform  him  of  the  one  which 
will  interfere  with  his  journey.  Hasseltine 
V.  Southern  R.  Co.  6:  1009,  55  S.  E.  142,  75 
S.  C.  141.  (Annotated) 
Derailment. 

Presumption  of  negligence  from  fact  of  de- 
railment, see  Evidence,  344-348. 
See  also  infra,  248,  275, 

222.  That  a  passenger  goes  upon  the  car 
platform  preparatory  to  alighting,  as  the 
car  slackens  speed  when  approaching  his 
station,  does  not  prevent  holding  the  car- 
rier liable  for  his  death  by  the  derailment 
of  the  train,  if  he  is  found  not  to  have 
been  negligent  in  so  doing,  notwithstanding 
notices  forbidding  passengers  to  ride  on 
car  platforms  or  to  leave  their  seats  while 
the  train  is  in  motion  were  posted  in  the 
cars,  and  a  statute  provides  that  in  case 
any  passenger  is  injured  on  a  platform  in 
violation  of  the  printed  regulations,  the 
carrier  is  not  liable  for  the  injuries.  Pruitt 
v.  San  Pedro,  L.  A.  &  S.  L.  R.  Co,  36:331, 
118  Pac.  223,  161  Cal.  29, 


366 


CARRIERS,  II.  g,  1. 


Injury  to  one  passenger  in  ejecting 
another. 

See  also  supra,  218,  219. 

223.  A  passenger  cannot  recover  damages 
for  injury  inflicted  upon  her  by  the  push- 
ing against  her  by  the  train  hands  of  her 
father,  in  an  attempt  to  eject  him  from 
the  train,  using  no  more  force  than  was 
necessary,  if,  because  of  his  intoxication, 
refusal  to  surrender  his  ticket,  and  abuse, 
he  rendered  himself  subject  to  ejection,  and 
his  resistance  thereto  caused  the  impact 
with  the  person  injured.  Chesapeake  &  0. 
R.  Co.  V.  Robinett,  45:  433,  152  S.  W.  976, 
151   Ky.  778. 

224.  A  street  car  company  is  liable  for 
injury  to  a  passenger  who  is  dragged  from 
his  seat  and  thrown  from  the  car  in  an 
attempt  to  eject  an  intoxicated  passenger 
from  the  car,  if  its  employees  engaged  in 
ejecting  the  passenger  do  not  exercise  rea- 
sonable care  to  avoid  injury  to  other  passen- 
gers by  their  undertaking.  Thayer  v.  Old 
Colony  Street  R.  Co.  44:  1125,  101  N.  E. 
368,  214  Mass.  234.  (Annotated) 
Communication  of  disease. 

225.  A  carrier  cannot  be  held  liable  for  in- 
jury to  a  passenger  from  a  contagious  dis- 
ease contracted  on  the  train  from  another 
passenger,  unless  the  conductor  knew  that 
the  latter  was  afflicted  with  a  contagious 
disease,  and  failed  promptly  to  exercise 
ordinary  care  to  prevent  contagion  to  oth- 
er passengers,  such  as  the  circumstances 
would  admit  of  in  view  of  its  duty  to  the 
afflicted  passenger  and  otliers  on  the  train. 
Bogard  v.  Illinois  C.  R.  Co.  36:  337,  139  S. 
W.  855,  144  Ky.  649.  (Annotated) 
Injury  by  stranger. 

Assault  by  stranger  on  passenger,  see  su- 
pra, 131, 

Question  for  jury  as  to  whether  act  of 
stranger  was  proximate  cause  of  in- 
jury, see  Trial,  188, 

226.  The  wrongful  act  of  a  stranger  is  not 
sufficient  to  make  a  carrier  liable,  unless  it 
might  reasonably  have  been  foreseen  and 
guarded  against  by  it.  Bevard  v.  Lincoln 
Traction  Co.  3:  318,  105  N.  W.  635,  74  Neb. 
802.  (Annotated) 

227.  That  the  motorman  of  a  street  car 
sees  a  person  with  something  in  his  hand 
near  the  track  at  a  place  where  the  car  is 
not  required  to  stop  for  passengers,  making 
violent  motions  toward  the  car,  does  not 
charge  him  with  notice  that  his  failure  to 
«top  the  car  will  result  in  the  throwing  of 
a  missile  at  himself  which  may  strike  and 
injure  a  passenger,  and  charge  him  with  the 
duty  of  protecting  the  passenger,  so  as  to 
render  the  company  liable  for  injury  to  the 
passenger  by  his  neglect  so  to  do.  Woas  v. 
St.  Louis  Transit  Co.  7:  231,  96  S.  W.  1017, 
198  Mo.  664.  (Annotated) 
Injury  by  other  passenger. 

Assault  by  other  passenger,  see  supra,  127- 
131. 

Proximate  cause  of  injury,  see  Proximate 
Cause,  87. 

Correctness  of  instruction  in  action  for  in- 
jury, see  Trial,  1053. 

See  also  supra,  217;   infra,  311. 

Digest  1-52  I<.R.A.<N.S.) 


228.  A  carrier  is  not  liable  for  injury  to 
a  passenger  through  the  failure  of  its  "con- 
ductor to  anticipate  that  a  passenger  on 
the  train  who  has  had  an  altercation  with 
another  would  borrow  a  pistol,  and  attempt 
to  assault  the  latter  after  lie  had  left  the 
train,  or  that  the  person  assaulted  would 
use  a  pistol  so  as  to  cause  the  injury,  wliere 
the  conductor  had  searched  him  for  a  pistol 
and  found  none.  Penny  v.  Atlantic  C.  L. 
R.  Co.  32:  1209,  69  S.  E.  238,  153  N.  C. 
296. 

229.  A  carrier  is  not  answerable  for  the 
act  of  one  of  its  employees  who  is  riding 
on  its  train  as  a  passenger,  when  not  on 
duty,  in  engaging  in  an  altercation  with  a 
passenger  to  the  injury  of  a  third  person. 
Penny  v.  Atlantic  C.  L.  R.  Co.  32:  1209,  69 
S.  E.  238,  153  N.  C.  296. 

230.  A  railroad  company  is  not  liable  for 
injury  to  a  passenger  seated  at  an  open 
window,  by  splinters  of  glass  from  a  bottle 
thrown  by  a  fellow  passenger  from  another 
window  while  the  train  is  passing  through 
a  rock  cut  so  that  the  bottle  struck  the  side 
of  the  cut  and  rebounded  into  the  car. 
Pruett  v.  Southern  R.  Co.  49:  810,  80  S.  E. 
65,    164    N.    C.    3.  (Annotated) 

231.  A  railroad  company  cannot  be  held 
liable  on  the  ground  of  negligence,  for  in- 
jury to  a  passenger  entering  a  car  at  a 
station  by  falling  over  a  valise  which  an- 
other passenger  who  entered  at  the  same 
statii^n  left  projecting  into  the  aisle,  where 
the  train  hands  were,  during  all  the  time 
which  elapsed  from  its  deposit  to  the  acci- 
dent, outside  the  train,  assisting  passengers 
to  enter  the  car.  Beiser  v.  Cincinnati,  N.  O. 
&  T,  P.  R.  Co.  43:  1050,  153  S.  W,  742,  152 
Ky.  522.  (Annotated) 

232.  A  street  car  company  is  not  liable 
for  injury  to  a  passenger  Standing  in  the 
vestibule,  by  the  act  of  a  fellow  passenger 
in  releasing,  without  request  from  or  notice 
to  the  company,  a  set  brake,  and  letting  the 
handle  whirl  around,  where  there  is  noth- 
ing to  show  that  it  ought  to  have  antici- 
pated that  passengers  would  meddle  with 
its  machinery.  Sure  v.  Milwaukee  Electric 
R.  &  Light  Co.  37:  724,  133  N.  W,  1098, 
148   Wis.   1. 

233.  Those  in  charge  of  a  street  car  are 
not  required  to  anticipate  the  giving  of 
starting  signals  by  passengers,  and  take  pre- 
cautions to  prevent  accidents  therefrom. 
Gary  v.  Los  Angeles  R.  Co.  27:  764,  108  Pac. 
682,   167   Cal.  599. 

234.  A  street  car  company  is  not  liable 
for  inj\xry  to  a  passenger  in  the  act  of 
alighting  from  a  car,  by  the  sudden  start- 
ing of  the  car  in  response  to  a  signal  given 
by  a  fellow  passenger,  where  neither  con- 
ductor nor  motorman  had  any  reason  to  be- 
lieve that  he  would  give  the  signal.  Cary 
V.  Los  Angeles  R.  Co.  27:  764,  108  Pac.  682, 
157   Cal.  599.  (Annotated) 

235.  A  carrier  cannot  be  held  liable  for 
the  killing  of  a  passenger  by  the  explosion 
of  a  parcel  of  fireworks  illegally  introduced 
into  a  railway  carriage  by  another  passen- 
ger, in  the  absence  of  evidence  that  the  par- 
cel exhibited  such  signs  of  dangerous  con- 


CARRIERS,  II.  g,  1. 


367 


tents  as  ought  to  have  called  the  attention 
of  the  railway  servants  to  it.  East  Indian 
R.  Co.  V.  Mukerjee,  3  B.  R.  C.  420,  [1901] 
A.  C.  396.  Also  Reported  in  70  L.  J.  P.  C. 
N.  S.  63,  84  L.  T.  N.  S.  210,  17  Times  L. 
R.  284.  (Annotated) 

236.  The  admission  by  a  carrier  to  its 
premises  of  an  intending  passenger  obvious- 
ly under  the  influence  of  liquor  is  not 
negligence  per  se,  so  as  to  render  the  car- 
rier absolutely  liable  for  the  act  of  the 
drunken  person  in  suddenly  swinging  his 
arm,  while  being  led  along  the  platform  by 
a  porter,  in  such  a  way  as  to  break  the 
window  of  a  railway  carriage,  the  glass  of 
which  injured  a  passenger  therein;  but  it 
is  for  the  jury  to  say  whether  reasonable 
precautions  were  taken  by  the  carrier's  serv- 
ants to  prevent  the  drunken  passenger  from 
injuring  otliers,  and,  if  not,  whether  the 
breaking  of  the  window  was  the  reasonable 
consequence  of  the  want  of  such  precau- 
tions. Adderlev  v.  Great  Northern  R.  Co. 
4  B.  R.  C.  293,  [1905]  2  I.  R.  378. 

(Annotated) 
Injury  to  mail  agent. 

237.  A  railroad  company  in  carrying  the 
mail  is  not  a  public  oflicer  or  agent,  so  as  to 
be  exempt  from  liability  for  injuries  caused 
by  the  negligence  of  its  servants  which  re- 
sults in  injury  to  a  mail  clerk.  Barker  v. 
Chicago,  P.  &  St.  L.  R.  Co.  26:  1058,  90  N. 
E.  1057,  243  111.  482. 

238.  A  railroad  company  is  liable  for  an 
injury  inflicted  upon  a  postal  clerk  in  its 
mail  car  by  the  negligence  of  its  employees, 
to  the  same  extent  as  to  a  passenger  for  hire. 
Barker  v.  Chicago,  P.  &  St.  L.  R.  Co.  26: 
1058,  90  N.  E.  1057,  243  111.  482. 

(Annotated) 
Homicide  of  passenger. 
See  also  supra,  235. 

239.  A  railroad  company  is  liable  for  the 
killing  of  a  passenger  by  a  bullet  fired  by 
the  conductor  from  a  pistol  borrowed  from 
another  passenger  while  they  were  stand- 
ing beside  the  train,  without  intention  of 
doing  injury,  upon  the  theory  that  it  is 
the  carrier's  duty  to  protect  passengers, 
although  the  conductor  was  acting  entirely 
outside  the  line  of  his  duty.  St.  Louis  & 
S.  F.  R.  Co.  V.  Sanderson,  46:  352,  54  So. 
885,  99   Miss.   148. 

Negligence  of  sleeping  car  employee. 
See  also  supra,  65;  infra,  739. 

240.  A  railroad  company  is  liable  for  the 
negligent  act  of  a  sleeping  car  porter  in  ush- 
ering a  passenger  into  the  car,  resulting  in 
injury  to  the  passenger,  although  the  act  is 
committed  while  the  sleeping  car  is  stand- 
ing in  the  yard  awaiting  the  arrival  of  the 
train  to  which  it  is  to  be  attached.  Den- 
ver &  R.  G.  R.  Co.  V.  Berry,  27:  761,  108 
Pac.  172,  47  Colo.  584. 

241.  Where  a  sleeping  car  conductor  un- 
dertakes, in  the  presence  of  the  train  con- 
ductor, to  put  a  lady  holding  a  railroad 
ticket  on  the  right  Pullman  car,  and  tells 
her  to  remain  in  his  car  until  the  desired 
car  arrives,  the  railroad  company  is  liable 
for  his  neglect  to  do  so.  Cincinnati,  N.  O. 
Digest   1-52  L.R.A.CN.S.) 


&  T.  P.  R.  Co.  V.  Raine,  19:  753,  113  S.  W. 

495,  130  Ky.  454. 

Speed;  sudden  jolt  or  stop. 

Presumption  and  burden  of  proof  as  to  neg- 
ligence, see  Evidence,  342,  362-364. 

Opinion  evidence  that  injury  was  caused  by 
impact  of  cars,  see  Evidence,  1086. 

Pleading  as  to,  see  Pleading,  34,  291. 

Question  for  jury  as  to,  see  Tri.^l,  371, 
374-376,  381. 

See  also  supra,  97;  infra,  317,  480,  481, 
498,  526,  531,  534. 

242.  To  run  a  freight  train  30  miles  an 
hour  is  not  reckless  or  wanton  conduct  to- 
ward a  passenger  thereon.  McLean  v.  At- 
lantic C.  L.  R.  Co.  18:  763,  61  S.  E.  900, 
1071,  81  S.  C.  100. 

243.  The  sudden  increasing  of  the  speed 
of  a  railroad  train  in  a  railroad  yard  to  an 
unlawful  rate,  to  the  injury  of  a  trespasser 
in  the  act  of  leaving  the  train,  is  not  such 
negligence  with  respect  to  him  as  to  ren- 
der the  railroad  company  liable  for  the 
injury,  in  the  absence  of  knowledge  of  his 
peril  on  the  part  of  those  in  charge  of  the 
train.  SIcElvane  v.  Central  of  Georgia  R. 
Co.  34:  715,  54  So.  489,  170  Ala.  525. 

244.  A  street  car  company  which  has  so 
overcrowded  a  car  that  passengers  are  com- 
pelled to  stand  upon  the  steps  and  platform 
is  bound  to  regulate  the  speed  of  the  car 
so  as  not  to  endanger  persons  so  situated. 
Alton  Light  &  Traction  Co.  v.  Oiler,  4:  399, 
75  N.  E.  419,  217  111.  15.  (Annotated) 

245.  The  motorman  in  charge  of  an  elec- 
tric street  car  does  not  owe  passengers  the 
duty  of  maintaining  a  uniform  rate  of  speed 
after  the  car  is  within  a  few  hundred  feet 
of  a  place  where  he  has  been  signaled  to 
stop.  McGann  v.  Boston  Elev.  R,  Co.  18: 
506,  85  N.  E.  570,  199  Mass.  446. 

246.  The  employees  of  a  railroad  com- 
pany must  use  every  care  commensurate 
with  the  danger  to  a  passenger,  and  where 
a  motorman  of  a  street  car  fails  to  suffi- 
ciently slow  down  his  car  in  rounding  a 
curve,  and  a  passenger,  who  has  been  stand- 
ing on  the  platf<?rm  with  the  motorman, 
is  thrown  out  by  the  consequent  jolting, 
and  is  injured,  the  railroad  company  is 
liable.  McMahon  v.  New  Orleans  R.  & 
L.  Co.  32:  346,  53  So.  857,  127  La.  544. 

247.-  A  street  railway  company  which 
runs  a  car  at  high  and  dangerous  speed 
without  warning,  past  another  wliich  is  so 
overcrowded  that  the  passengers  in  moving 
about  crowd  one  of  their  number,  who  is 
standing  on  the  platform,  over  tlie  line  of 
safety  between  the  two  tracks,  may  be  lia- 
ble for  injury  to  him  through  collision  with 
the  car  so  operated.  Elliott  v.  Seattle,  R. 
&  S.  R.  Co.  39:  608,  122  Pac.  614,  68  Wash. 
129. 

248.  Upon  the  question  of  the  negligence 
of  a  railroad  conipany  in  operating  a  train 
which  was  derailed  while  backing,  to  the 
injury  of  a  passenger,  the  jury  may  con- 
sider the  question  of  the  speed  of  the  train, 
together  with  the  position  of  the  engine  in 
it.  St.  Louis  &  S.  F.  R.  Co.  v.  Kitchen, 
50:  828,  136  S.  W.  970,  98  Ark.  507. 

249.  A  street  car  company  which  so  neg- 


368 


CARRIERS,  II.  g,  1. 


ligently  operates  a  ear  at  excessive  speed 
as  to  cause  a  lurch  or  jerk  and  throw 
standing  passengers  against  another  and 
force  him  off  the  car  is  liable  for  tlie  injury 
thereby  caused.  South  Covington  &  C. 
Street' R.  Co.  v.  Hardy,  44:32,  153  S.  VV. 
474,  152  Ky.  374. 

250.  A  street  car  company  cannot  escape 
liability  for  injury  to  a  passenger  by  the 
unusual  and  unnecessary  jerk  or  jolting  of 
the  car,  merely  because  its  speed  was  not 
at  the  time  excessive.  South  Covington  & 
C.  Street  R.  Co.  v.  Hardy,  44:  32,  153  S. 
VV.  474,  152  Ky.  374. 

251.  A  carrier  is  not  liable  for  injury  to 
a  passenger  who  has  not  yet  reached  a  seat, 
by  the  sudden  application  of  the  brake  just 
after  the  train  has  started,  to  save  another 
passenger  who,  in  attempting  to  board  the 
train,  fell  and  was  in  danger  of  going  un- 
der the  wheels,  in  the  absence  of  any  knowl- 
edge on  the  part  of  the  one  who  stopped  the 
train  of  the  position  of  the  persoa  in  the 
car  who  was  injured  by  the  stop.  Stewart 
V.  Central  VermoHt  R.  Co.  44:  433,  85  Atl. 
745,  86  Vt.  398. 

252.  Stopping  a  railroad  train  so  sudden- 
ly and  violently  as  to  throw  passengers 
forward  in  their  seats  and  cause  baggage  to 
fall  from  the  racks  is  evidence  of  negligence 
which  the  carrier  must  negative  to  avoid 
liability  for  injury  caused  by  the  falling 
baggage.  Rosenthal  v.  New  York,  N.  H. 
&  H.  R.  Co.  51:  775,  89  Atl.  888,  88  Conn. 
65. 

253.  To  hold  a  carrier  liable  for  injury  to 
a  passenger  by  reason  of  a  jalt  of  the  ve- 
hicle, plaintiff  must  show  that  it  was  caused 
by  the  carrier's  negligence.  Foley  v.  Bos- 
ton &,  M.  R.  Co.  7:  1076,  79  N.  E.  765,  193 
Mass.  332.  (Annotated) 

254.  It  is  not  negligence  for  an  engineer 
of  a  logging  train,  not  intended  to  carry 
passengers,  suddenly  to  stop  his  train  on 
getting  an  emergency  signal.  Johnson  v. 
Louisiana  R.  &  Nav.  Co.  36:887,  56  So.  301, 
129  La.  332. 

255.  A  railroad  company  is  liable  for  in- 
jury to  a  passenger  on  a  freight  train,  who, 
to  the  knowledge  of  the  conductor,  has,  in 
the  absence  of  a  closet,  gone  to  the  plat- 
form to  answer  a  call  of  nature  during  the 
stopping  of  the  train  upon  a  trestle,  where 
the  conductor  neither  warns  him  of  the 
danger,  nor  takes  any  measures  to  prevent 
the  starting  of  the  train  with  a  jerk  while 
he  is  in  a  dangerous  position,  in  consequence 
of  which  he  is  thrown  to  the  ground  and  in- 
jured. Rodgers  v.  Choctaw,  O.  &  G.  R.  Co. 
1:  1 145,  89  S.  W.  468,  76  Ark.  520. 

( Annotated ) 

256.  A  passenger  on  a  street  car  who  went 
upon  the  platform  as  the  car  ap- 
proached his  stopping  place  does  not  make 
out  a  case  of  negligence  against  the  com- 
pany by  showing  that  the  car  started  for- 
ward with  a  jerk,  and  he  was  thrown  to 
the  ground  and  injured.  McGann  v.  Boston 
Elev.  R.  Co.  18:  506,  85  N.  E.  570,  199  Mass. 
446. 

Digest  1-52  Ii.R.A.(M.S.) 


Failure  to  heat  car. 

Evidence  upon  question  of  temperature  and 
condition  of  car,  see  Evidence,  1364. 

Pleading  as  to,  see  Pleading,  294. 

Demurrer  to  petition  in  action  for  injuries 
resulting  from,  see  Pleading,  602.  • 

Failure  to  heat  car  as  proximate  cause  of 
cold  contracted  by  passenger,  see  Proxi- 
mate Cause,  81. 

Venue  of  action  for  injury  resulting  from, 
see  Venue,  13, 

257.  Under  the  provisions  of  a  statute  re- 
quiring railroads  having  contracts  to  carry 
mails  to  provide  cars  properly  warmed,  a 
route  agent  may  recover  from  the  railroad 
company  the  damages  caused  to  him  by  fail- 
ure to  heat  the  car  carrying  mail  which  he 
is  required  to  accompany.  Lindsey  v. 
Pennsylvania  R.  Co.  3:  218,  26  App.  D.  C. 
503.  (Annotated) 

258.  A  railroad  company  which  negligent- 
ly fails  to  heat  its  cars  in  extremely  cold 
weather  is  liable  to  a  passenger  for  physical 
injurj^  due  to  exposure,  although  she  volun- 
tarily remains  in  the  car  while  it  transports 
her  to  her  destination.  Atlantic  Coast  Line 
R.  Co.  v.  Powell,  9:  769,  56  S.  E.  1006,  127 
Ga.  805. 

259.  One  who  is  not  a  member  of  a  mili- 
tary company,  but  who  volunteers  to  ac- 
company it  on  an  expedition,  to  supply  the 
place  of  a  member,  cannot  hold  the  railroad 
company  liable  for  injury  due  to  the  dis- 
comfort of  a  car  in  which  the  company  is 
carried,  where  he  is  not  subject  to  discipline 
under  the  statute,  since  he  may  avoid  in- 
jury by  going  into  another  car.  Louisville 
&  N.  R.  Co.  V.  Scalf,  26:  263,  110  S.  W.  862, 
33  Ky.  L.  Rep.  721.  (Annotated) 
Passengers  on  logging  railroad. 
Contributory  negligence,  see  infra,  329,  330. 
See  also  supra,  254. 

260.  A  logging  railroad  which  expressly 
or  impliedly  empowers  employees  in  charge 
of  its  trains  to  carry  passengers  thereon  is 
liable  for  their  negligent  injury,  although 
they  are  not  required  to  pay  fare.  Harvey 
V.  Deep  River  Logging  Co.  12:  131,  90  Pac. 
501,  49  Or.  583.  (Annotated) 

261.  Where,  for  a  period  of  years,  the 
manager  of  a  logging  company  permits  the 
carriage  of  passengers  on  its  train,  the  cor- 
poration owes  persons  so  carried  the  duty 
of  not  injuring  them  by  its  negligence. 
Harvey  v.  Deep  River  Logging  Co.  12:  131, 
90  Pac.  501,  49  Or.  583. 

262.  A  carrier  having  limited  fitness  and 
capacity  to  transport  passengers,  and  whose 
primary  business  is  to  transport  its  logs, 
is  not  held  to  the  standard  of  perfection  of 
an  ideal  road,  but  must  exercise  the  high- 
est degree  of  care  practicable  under  the  cir- 
cumstances. Campbell  v.  Duluth  &  N.  E. 
R.  Co.  22:  190,  120  N.  W.  375,  107  Minn.  358. 

( Annotated ) 
Duty    to    stop    for    passenger    thrown 
from   train. 

263.  Failure  to  take  some  measure  likely 
to  afford  prompt  relief  to  a  passenger  known 
by  a  train  officer  to  have  fallen  from  a  train 
running  at  the  speed  of  45  or  50  miles  an 
hour  is   strong  evidence  of   reckless   disre- 


CARRIERS,  II.  g,  1. 


369 


gard  of  duty.     Brice  v.  Southern  R.  Co.  27: 
768,  67  S.  E.  243,  85  S.  C.  216.     (Annotated) 

264.  An  auditor  or  ticket  taker  on  a  train 
is  bound  to  take  measures  to  stop  the  train 
when  he  knows  that  a  passenger  fell  from  it 
whDe  it  was  running  45  or  50  miles  an  hour, 
althougii  the  conductor  was  in  control  of  its 
movements.  Brice  v.  Southern  R.  Co.  27: 
768,  67  S.  E.  243,  85  S.  C.  216. 
After  passenger  leaves  car. 
Injury  in  getting  on  or  off,  see  infra,  II.  k. 
Injury  to  passenger  at  station  after  leaving 

car,  see   infra,  II.  L. 
Contributory  negligence,  see  infra,  340,  342- 

344. 
See  also  infra,  581, 

265.  Knowledge  on  the  part  of  a  railroad 
company  of  the  use  by  passengers  of  a  par- 
ticular route  in  leaving  its  cars  does  not 
amount  to  an  invitation  to  use  it,  where 
other  proper  arrangements  have  been  pro- 
vided. Legge  V.  New  York,  N.  H.  &  H.  R. 
Co.  23:  633,  83  N.  E.  367,  197  Mass.  88. 
Requiring  passenger  to  ride  on  plat- 
form. 

Sufficiency  of  evidence  as  to,  see  Evidence, 

2312. 
See  also  supra,  244;   infra,  357,  358. 

266.  A  street-car  conductor  has  authority 
to  direct  a  workman  encumbered  by  tools 
and  materials  which  may  be  objectionable 
to  other  passengers  to  occupy  the  front 
platform  of  the  car  if  he  desires  to  become 
a  passenger  thereon.  Mittleman  v.  Phila- 
delphia R.  T.  Co.  18:503,  70  Atl.  828,  221 
Pa.  485. 

267.  A  passenger  injured  while  in  the  ex- 
ercise of  ordinary  care  for  his  own  safety, 
by  being  thrown  by  the  motion  of  the  car 
from  a  platform  to  which  he  had  been  re- 
moved by  the  conductor  because,  rn  conse- 
quence of  sickness,  he  was  offensive  to  other 
passengers,  may  hold  the  carrier  liable  for 
the  injury.  Chesapeake  &  0.  R.  Co.  v. 
Crank,  16:  197,  108  S.  W.  276,  128  Ky.  329. 

( Annotated ) 
Injury    at    union    depot    or    station    of 

terminal  company. 
See  also  infra,  585. 

268.  A  union  depot  company  which  relied 
upon  train  employees  to  direct  passengers 
to  their  trains  is  liable  for  injury  caused 
to  a  passenger's  attendant  by  following  the 
direction  of  such  employee,  which  takes  him 
into  an  unsafe  place,  where  the  danger  is 
not  obvious,  although  the  one  giving  it 
was  not  in  its  immediate  employ.  Union 
Depot  &  R.  Co.  V.  Londoner,  33:  433,  114 
Pac.   316,   50   Colo.   22.  (Annotated) 

269.  A  terminal  company  whose  tracks  a 
railroad  company  entering  a  city  must  use, 
which  negligently  gives  an  order  as  to  the 
handling  of  a  train,  and  the  railroad  com- 
pany which  negligently  obeys  the  order,  may 
both  l>e  held  liable  for  a  resulting  injury  to 
a  waiting  passenger.  Hunt  v.  New  York, 
N.  H.  &  H.  R.  Co.  40:  778,  98  N.  E.  787,  212 
Mass.   102. 

270.  A  carrier  using  the  tracks  of  a  ter- 
minal company  which  has  statutory  authori- 
ty to  make  rules  for  the  use  of  its  station 
and  approaches  is  liable  for  injuries  to  per- 
Digest  1-52  L.R.A.(N.S.)  24 


sons  awaiting  at  the  station,  by  its  failure 
to  obey  the  rules,  which  results  in  backing 
a  train  through  a  fence  among  waiting 
passengers,  so  as  to  cause  a  panic  among 
and  injury  to  them.  Hunt  v.  New  York,  N. 
H.  &  H.  R.  Co.  40:  778,  98  N.  E.  787,  212 
Mass.  102. 

b.  As  to  trades,  roadbed,  etc. 

(See  also  Carriers,  II.  a,  4>  C^^)  in  Digest 
L.R.A.  1-10.) 

Negligence  as  to,  as  question  for  jury,  see 

Trial,  385. 
See  also  supra,  171,  222. 

271.  A  street  railway  company  does  not 
perform  its  duty  to  its  passengers  with  re- 
spect to  the  safety  of  a  culvert  crossed  by 
its  tracks  in  a  village  street,  by  relying 
upon  the  town  and  its  officers  to  perform 
their  duty  with  respect  to  the  safety  of 
culverts,  and  \\,  may  therefore  be  liable  for 
injury  to  a  passenger  through  the  washing 
out  of  the  culvert,  if  it  failed  to  take  pre- 
cautions to  keep  it  clear  of  obstructions. 
Sawin  v.  Connecticut  Valley  Street  R.  Co. 
43:  72,  99  N.  E.  952,  213  Mass.  103. 

( Annotated ) 

272.  A  street  railway  company  is  negli- 
gent in  maintaining  the  tracks  used  by  cars 
running  in  opposite  directions  so  close  to- 
gether that  the  natural  sway  of  the  cars  in 
motion,  emphasized  by  an  uneven  condition 
of  the  track  which  it  permits  to  exist,  brings 
passing  cars  within  3  to  6  inches  of  each 
other,  without  taking  any  precautions  to 
prevent  injury  to  passengers  who,  because 
of  the  crowded  condition  of  the  cars,  may 
project  some  portion  of  the  body  beyond  the 
sides  of  the  cars.  La  Barge  v.  Union  Elec- 
tric Co.  19:  213,  116  N.  W.  816,  138  Iowa, 
691. 

273.  It  is  gross  negligence  for  a  street 
car  company  to  run  open  cars  past  each 
other  on  tracks  which  leave  only  3  inches 
between  the  cars,  with  a  running  rail  placed 
where  passengers  would  naturally  rest  their 
arms  on  the  side  next  the  passing  car. 
Georgetown  A;  T.  R.  Co.  v.  Smith,  5:  274,  25 
App.  D.  C.  259. 

274.  An  ordinance  requiring  motorman  in 
charge  of  street  cars  to  keep  a  vigilant 
watch  for  persons  on  or  near  the  tracks 
does  not  absolve  them  from  the  duty  to  see 
that  there  is  no  obstacle  on  the  track 
which  may  cause  an  injury  to  passengers. 
O'Gara  v.  St.  Louis  Transit  Co.  12:  840,  103 
S.   W.   54,   204   Mo.   724. 

275.  A  street  car  company  cannot  es- 
cape liability  for  the  injury  of  a  passenger 
through  derailment  of  a  car  because  the 
car  was  derailed  by  a  brick  placed  on  tlie 
track  by  a  stranger,  if,  by  the  exercise  of 
the  high  degree  of  care  and  diligence  which 
such  corporations  must  exercise  towards 
their  passengers,  the  motorman  coi'.ld  have 
seen  the  brick  in  time  to  avoid  running  up- 
on it.  O'Gara  v.  St.  Louis  Transit  Co. 
12:  840,  103  S.  W.  54,  204  Mo.  724. 

(Annotated) 


370 


CARRIERS,  II.  g,  1. 


276.  A  street  car  company  is  negligent  in 
maintaining  a  trolley  pole  so  close  to  the 
track  that  a  passenger  who  happens  to  be 
on  the  running  board  when  the  car  passes 
the  pole  may  be  injured  by  it.  Cameron  v. 
Lewiston,  B.  &  B.  Street  R.  Co.  i8:  497, 
70  Atl.  534,  103  Me.  482. 

Open  switeli. 

276a.  The  leaving  open  of  a  switch  leading 
to  a  side  track  at  a  time  when  a  passenger 
train  may  be  expected  momentarily,  with- 
out ascertaining  the  location  of  the  train, 
is  gross  negligence,  where  the  statute  de- 
fines such  negligence  to  be  the  want  of 
slight  care  and  diligence.  Walther  v. 
Southern  Pacific  Co.  37:  235»  HO  Pac.  51, 
159  Cal.  769. 
Bridges. 

Burden  of  proof  in  case  of  injury  to  pas- 
senger, see  Evidence,  349. 
Setting  aside  verdict  for  passenger  injured 
by    fall   of    carrier's    bridge,    see    l^EW 
Tbial,  29. 

277.  A  carrier  is  not  liable  for  injury  to  a 
passenger  through  the  fall  of  a  bridge  caused 
by  the  breaking  of  an  imperfect  weld  in  a 
cord,  which  could  not  have  been  detected  by 
the  utmost  scrutiny,  where  the  bridge  was 
constructed  by  a  thoroughly  reputable,  com- 
petent, and  reliable  builder.  Roanoke  R.  & 
El.  Co.  V.  Sterrett,  19:  316,  62  S.  E.  385,  108 
Va.  533. 

c.  As  to  vehicle,  or  place  of  riding  gen- 
erally. 

(See  also  Carriers,  II.  a,  4,  a  (S)  in  Digest 
L.R.A.  1-10.) 

Fall  of  car  window,  see  supra,  203. 

As  to  overcrowding  cars,  see  supra,  244. 

Failure  to  heat  car,  see  supra,  257-259. 

Contributory  negligence,  see  infra,  328,  330, 
332,  336-339,  364-381. 

Aggravation  of  damages,  see  infra,  725. 

Measure  of  damages  for  injury,  see  Dam- 
ages, 424. 

SuflSciency  of  proof  of  negligence,  see  Evi- 
dence, 2145. 

Instruction  as  to  burden  of  proof  in  case  of 
injury  to  passenger,  see  Trial,  1051. 

See  also  supra,  185,  186,  203;  infra,  499. 

278.  Carriers  operating  mixed  trains  for 
carrying  passengers  are  under  practically 
the  same  duty  in  regard  to  the  safety  of 
their  cars  as  'where  they  carry  the  passen- 
gers upon  passenger  trains.  Morgan  v.  Ches- 
apeake &  O.  R.  Co.  15:  790,  105  S.  W.  961, 
127  Ky.  433. 

279.  A  railroad  company  is  answerable  to 
its  passengers  in  the  same  degree  for  the 
safe  condition  of  ti>e  cars  of  other  compa- 
nies used  in  its  trains,  as  for  its  own,  not- 
withstanding it  is  required  by  law  to  take 
cars  of  connecting  carriers  and  haul  them 
on  equal  terms  with  its  own.  Morgan  v. 
Chesapeake  &  0.  R.  Co.  15:  790,  105  S.  W. 
961,  127  Ky.  433. 

280.  A  railroad  company  is  liable  for  in- 
jury to  a  passenger  caused  by  the  breaking 
of  an  axle  by  reason  of  a  sand  hole  if  the 
Digest  1-52  I<.R.A.(N.S.) 


defect  could  have  been  discovered  by  the 
builder  of  the  car  by  the  exercise  of  the 
utmost  human  skill  and  foresight.  Morgan 
V.  Chesapeake  &  O.  R.  Co.  15:  790,  105  S. 
S.  W.  961,  127  Ky.  433.  (Annotated) 

281.  The  exercise  of  reasonable  care  with 
respect  to  the  condition  of  its  decks  as  to 
their  slipperiness  is  the  measure  of  duty 
which  a  steamsiiip  company  owes  a  pas- 
senger, and  the  court  cannot  be  required  to 
instruct  the  jury  that  it  must  exercise  the 
greatest  care.  Pratt  v.  North  German  Lloyd 
S.  S.  Co.  33:  532,  184  Fed.  303,  106  C.  C.  A. 
445.  (Annotated) 

282.  A  street  railway  company  is  not  re- 
lieved from  the  responsibility  of  using  due 
care  for  the  safety  of  passengers  invited 
upon  a  crowded  car  by  the  fact  tiiat  such 
passengers  assume  the  inconveniences  re- 
sulting from  the  crowded  condition.  Lob- 
ner  v.  Metropolitan  Street  R.  Co.  21:  972, 
101   Pac.  463,  79  Kan.  811. 

283.  A  street  car  company  is  not  negligent 
in  using  open  cars  with  wheel  guards  pro- 
jecting into  the  running  boards  along  the' 
sides  so  as  to  be  liable  for  injuries  to  a 
passenger  whose  foot  strikes  and  slips  from 
the  guarding  when  he  is  attempting  to 
alight  from  the  car,  thereby  throwing  him 
from  the  car  and  injuring  him,  if  cars  of 
this  type  are  in  common  use,  and  it  is  not 
shown  to  be  feasible  to  dispense  with  guards 
or  use  safer  ones.  Adduci  v.  Boston  Ele- 
vated R.  Co.  45:  969,  102  N.  E.  315,  215 
Mass.  336. 

Passenger   rightfully   riding    on  plat- 
form. 
See  also  supra,  244,  246,  247,  276. 

284.  A  carrier  which  negligently  and  un- 
reasonably fails  to  provide  sufficient  cars, 
so  that  passengers  are  compelled  to  ride  on 
the  platform,  and  then  accepts  passengers 
for  carriage  in  such  hazardous  place,  is,  in 
the  absence  of  contributory  negligence, 
liable  in  damages  for  injuries  to  one  who, 
while  so  riding,  fell  therefrom.  Norvell  v. 
Kanawha  &  M.  R.  Co.  29:  325,  68  S.  E.  288, 
67  W.  Va.  467. 

285.  The  carrier  owes  to  a  passenger  in- 
voluntarily, necessarily,  and  rightfully 
riding  on  the  platform  the  high  degree  of 
care  commensurate  with  the  circumstances 
and  its  act  in  undertaking  to  carry  him 
there.  Norvell  v.  Kanawha  &  M.  R.  Co. 
29:  325,  68  S.  E.  288,  67  W.  Va.  467. 

286.  A  carrier  is  not  liable  to  one  injured 
by  falling  from  the  platform  of  its  car  upon 
which  he  was  excusably  riding,  where  it 
used  reasonable  diligence  to  provide  cars 
for  his  safe  carriage,  and  with  fair  excuse 
for  failing  to  provide  them,  exercised  the 
increased  care  demanded  by  the  passenger's 
enforced  position  on  the  platform.  Norvell 
V.  Kanawha  &  M.  R.  Co.  29:^325,  68  S.  E. 
288,  67  W.  Va.  467. 

287.  A  street  car  company  which  by  ordi- 
nance is  bound  to  maintain  gates  upon  the 
sides  of  car  platforms  next  to  parallel 
tracks  is  liable  for  injury  to  a  passenger 
crowded  off  the  platform  and  injured  by 
a  passing  car,  although  the  gate  was  opened 
by  a  fellow  passenger.     Elliott  v.  Seattle, 


CARRIBRS,  II.  g,  1. 


371 


R.   &   S.   R.   Co.   39:  608,   122   Pac.   614,   68 
Wash.   129. 

288.  Where  a  passenger  is  permitted  to 
stand  on  the  front  platform  of  a  motor 
car,  he  has  the  right  to  assume  that  if  there 
IS  any  danger  to  him,  requiring  the  closing 
of  the  gates  of  the  platform,  that  they  will 
be  closed,  and  the  same  duty  of  closing 
these  gates,  when  it  is  necessary  for  the 
protection  of  a  passenger,  rests  upon  an 
interurban  railroad  as  upon  a  strictly  city 
railroad.  McMahon  v.  New  Orleans  R. 
&  L.  (Jo.   32:  346,  53  So.   857,   127  La.  544. 

( Annotated ) 
Platforsns  of  vestibuled  cars. 
Negligence  as  question  for  jury,  see  Trial, 
379. 

289.  Although  a  sleeping-car  company  is 
not  required  to  have  its  cars  vestibuled,  yet, 
where  it  has  done  so,  and  has  led  passengers 
to  believe  that  the  doors  of  the  vestibule 
will  be  kept  closed  between  stations,  it  is 
liable  for  an  injury  due  to  negligently  leav- 
ing the  doors  open.  Crandall  v.  Minneap- 
olis, St.  P.  &  S.  Ste.  M.  R.  Co.  2:  645,  105  N. 
W.  185,  96  Minn.  434.  (Annotated) 

290.  A  railroad  company  is  not  negligent 
in  leaving  the  platform  of  the  rear  vestibule 
of  a  train  standing  at  a  station  open,  with- 
out light  in  the  vestibule,  so  as  to  be  liable 
for  injury  to  a  passenger  who  goes  there 
merely  because  the  car  is  hot  and  uncom- 
fortable, and  falls  down  the  uncovered  steps. 
Clanton  v.  Southern  R.  Co.  27:  253,  51  S<f 
616,  165  Ala.  485.  (Annotated) 

291.  Notice  to  a  railroad  company  of  a 
custom  of  passengers  to  use  the  rear  plat- 
form of  a  vestibuled  train  as  an  observation 
platform  is  not  of  itself  sufficient  to  impose 
the  duty  of  keeping  the  platform  down  over 
the  steps  while  the  train  is  standing  at  a 
station.  Clanton  v.  Southern  R.  Co.  27: 
253,  51  So.  616,  165  Ala.  485. 

Freiglit  trains. 

Contributory  negligence,  see  infra,  337,  338, 

548. 
Presumption   of  negligence  from   injury   to 

passenger,  see  Evidence,  361. 
Evidence  to  show  diligence  by  carrier,  see 

Evidence,  1787. 
Theory  on  which  case  may  be  given  to  jury, 

see  Teial,  140. 
See  also  supra,  242;  infra,  911-914,  981. 

292.  A  passenger  upon  a  freight  train  as- 
sumes the  extra  inconvenience  and  danger 
necessarily  attending  that  mode  of  convey- 
ance. St.  Louis  &  S.  F.  R.  Co.  v.  Gosnell, 
22:  892,   101   Pac.  1126,  23  Okla.  588. 

293.  A  railroad  company  which  carries 
passengers  for  hire  on  its  freight  trains 
must  exercise  the  same  degree  of  care  in  the 
operation  thereof  as  is  required  in  the  op- 
eration of  its  regular  passenger  trains.  St. 
Louis  &  S.  F.  R.  Co.  v.  Gosnell,  22:  892,  101 
Pac.  1126,  23  Okla.  588. 

294.  A  common  carrier  of  passengers  on 
a  freight  or  mixed  train  is  required  to  ex- 
ercise the  highest  degree  of  care  consist- 
ent with  the  practical  operation  of  such  a 
train.  Campbell  v.  Duluth  &  N.  E.  R.  Co. 
22:  190,  120  N.  W.  375,  107  Minn.  358. 

295.  The  mere  fact  that  a  conductor  saw  a 
Digest   1-52  Ii.R.A.(N.S.) 


passenger  on  top  of  the  caboose  while  the 
train  was  standing  at  a  station  does  not 
tend  to  show  that  he  consented  to  his  riding 
there  after  the  train  started, — especially 
where  he  had  informed  passengers  that  they 
were  not  allowed  to  ride  in  the  caboose. 
McLean  v.  Atlantic  C.  L.  R.  Co  18:  763,  61 
S.  E.  900,  1071,  81  S.  C.  100. 

296.  The  use  of  a  four-wheeled  caboose  in 
a  freight  train  is  not  such  wilful  miscon- 
duct towards  a  passenger  for  whose  use  a 
regular  passenger  car  is  provided  as  to  ren- 
der the  railroad  company  liable  for  his 
death  by  the  derailment  of  the  caboose,  up- 
on which  he  has  taken  his  place,  notwith- 
standing the  conductor  has  instructed  pas- 
sengers not  to  ride  in  the  caboose.  McLean 
V.  Atlantic  C.  L.  R.  Co.  18:  763,  61  S.  E. 
900,  1071,  81  S.  C.  100. 
Ice,  snejur,  or  filth  on  floors,   steps,   or 

car  platforms. 
Negligence  as  question  for  jury,  see  Trial, 

384. 
See  also  infra,  375. 

299.  The  mere  fact  that  the  steps  and 
platform  of  a  car  are  slippery  with  ice  will 
not  render  a  railroad  company  liable  for 
the  death  of  a  passenger  who  went  upon 
the  platform  when  the  train  approached, 
but  before  it  reached,  his  station,  and  fell 
from  the  car,  where  there  is  nothing  to 
show  what  was  the  cause  of  the  fall.  Louis- 
ville, H.  &  St.  L.  R.  Co.  V.  Gregory,  35: 
317,  133  S.  W.  805,  141  Ky.  747,  136  S.  W. 
154,  143  Ky.  300. 

300.  A  carrier  of  passengers  for  hire  is 
legally  responsible  for  injuries  happening 
to  a  passenger  for  such  an  accumulation 
of  ice  upon  its  car  steps  as  to  cause  a  pas- 
senger, using  ordinary  care,  to  slip  and 
fall,  if  sufficient  previous  opportunity  has 
been  had  to  remove  the  source  of  danger, 
although  it  may  have  charged  servants 
with  the  duty  of  keeping  the  steps  in  a 
safe  condition,  and  the  accident  is  due 
to  the  neglect  of  duty  of  the  servants. 
Murphy  v.  North  Jersey  Street  R.  Co.  (N. 
J.  Err.  &  Ap^).)  35:  592,  80  Atl.  331,  80  N. 
J.  L.  706.  (Annotated) 

301.  A  street  car  company  is  not  liable  for 
injuries  to  a  passenger  who  slips  upon  snow 
and  ice  accumulated  during  a  storm  upon  a 
step  after  the  car  has  started  upon  a  trip. 
Riley  v.  Rhode  Island  Co.  15:  523,  69  Atl. 
338,  29  E.  I.  143.  (Annotated) 
Defective  brake. 

302.  A  street  car  company  is  not  liable 
for  injury  to  a  passenger  who  falls  from 
the  step  of  a  car  which  is  slippery  because 
of  tobacco  juice  which  has  been  expecto- 
rated there,  if  there  is  nothing  to  show  that 
it  had  been  there  any  length  of  time,  and 
the  conductor  is  not  shown  to  have  been 
negligent  in  failing  to  discover  it  before 
the  accident  happened.  Hotenbrink  v.  Bos- 
ton Elevated  R.  Co.  39:  419,  97  N.  E.  624, 
211  Mass.  77.  (Annotated) 
Defective    brake. 

303.  The  mere  accidental  breaking  of  the 
air  hose  on  a  railroad  train,  which  brings 
the  train  to  a  stop  on  a  trestle  between 
stations,  will  not  render  the  company  liable 


372 


CARRIERS,'  II.  g,     2. 


character.  Loaisville  &  N.  R.  Co.  v.  Daiigh- 
erty,  15:  740,  108  S.  W.  336,  32  Ky.  L.  Rep. 
1392. 

309.  A  passenger  is  noi  negligent  in  at-\ 
tempting  to  board  a  train  on  tiie  side  next 
to  the  station,  altliougli  the  carrier  has 
made  provisions  to  receive  its  passengers  on 
the  platform  on  the  other  side,  wiiere  he 
follows  the  regular  practice  of  the  travel- 
ing public,  and  no  notice  has  been  given 
him  of  the  exception  which  the  carrier  has 
attempted  to  make  in  the  particular  case. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Stepp,  22:  350, 
164  Fed.  785,  90  C.  C.  A.  431. 

310.  One  attempting  to  signal  a  train  ap- 
proaching a  flag  station  is  negligent  in  re- 
maining on  the  track  in  front  of  an  ap- 
proaching engine  until  it  is  too  late  to 
avoid  being  hit  by  it.  Wright  v.  Atlantic 
Coast  Line  R.  Co.  25:  972,  66  S.  E.  848,  110 
Va.  670. 

311.  A  passenger  is  guilty  of  contribu- 
tory negligence  which  will  prevent  his 
holding  the  carrier  liable  for  injury  from  a 
stray  bullet  fired  by  another  passenger, 
if  the  danger  of  such  injury  could  have 
been  apprehended  by  him,  and  he  did  not 
turn  out  of  his  way  or  make  any  effort 
to  avoid  it,  although  the  conductor  who 
knew  of  the  danger  failed  to  give  him  warn- 
ing. Penny  v.  Atlantic  C.  L.  R.  Co.-  32: 
1209,  69  S.  E.  238,  153  N.  C.  296. 

( Annotated ) 
►  312.  A  street  car  tjompany  is  not  liable 
for  injury  to  a  passenger  standing  in  the 
door  of  a  crowded  car,  because  the  tone 
in  which  the  conductor  tells  her  to  make 
way  for  passengers  seeking  to  leave  the 
car,  is  such  that  she  becomes  frightened  and 
falls  from  the  car.  McCumber  v.  Boston 
Elevated  R.  Co.  32:  475,  93  N.  E.  698,  207 
Mass.  559. 

313.  The  act  of  crossing  from  one  car 
platform  to  another  on  a  moving  train  is 
not  per  se  negligence,  in  the  absence  of  a 
rule  or  notice  warning  the  passengers  from 
such  act.  Auld  v.  Southern  R.  Co.  37:  518, 
71  S.  E.  426,  136  Ga.  266. 

314.  It  is  not  necessarily  negligence  per 
se  for  a  passenger  to  rest  his  hand  on  the 
door  jamb  while  attempting  to  leave  a  car, 
so  as  to  prevent  his  holding  the  carrier  lia- 
ble in  case  the  door  slams  shut,  catching 
and  crushing  bis  fingers.  Christensen  v.  Ore- 
gon S.  L.  R.  Co.  20:  255,  99  Pac.  676,  35 
Utah,  137. 

315.  A  passenger  is  not  exercising  due 
care  in  standing  near  an  open  door  without 
supporting  himself  by  his  hands  while  the 
car  is  passing  over  a  cross-over  switch  of 
which  he  knows,  and  which  is  necessary  be- 
cause of  repairs  in  progress  on  the  track. 
Foley  v.  Boston  &  M.  R.  Co.  7:  1076,  79  N. 
E.   765,    193   Mass.    332. 

316.  It  is  not  negligence  per  se  for  a 
street  car  passenger  to  leave  his  seat  as 
the  car  approached  his  stop  and  stands  at  the 
door  with  a  firm  hold  thereon  awaiting 
the  stop,  although  he  knows  that  the  car 
is  moving  at  high  speed  with  unusual  sway- 
obtain  shelter  from  the  weather, " does  not  j  ing  and  must  pass  over  a  switch  before 
reqiiire  her  to  seek  refuge  in  a  place  of  bad  reaching  the  stopping  place.  Young  T. 
Digest  1-52  L.RJ^.(N.S.) 


for  the  death  of  a  passenger  who  went  on- 
to the  platform  and  fell  from  the  car,  al- 
though the  statute  requires  the  train  to 
be  equipped  with  air  brakes,  which  shall 
at  all  times  be  kept  in  good  condition. 
Louisville,  H.  &  St.  L.  R.  Co.  v.  Gregory, 
35:  317,  133  S.  W.  805,  141  Ky.  747,  136  S. 
W.    154,   143    Ky.   300. 

304.  That  the  motorman  made  no  efforts 
to  have  a  defective  brake  remedied  after 
discovering  its  condition,  although  he 
passed  the  car  barn  several  times  thereaft- 
er, is  negligence  upon  which  a  passenger 
injured  by  the  failure  of  the  brake  to  work 
may  rely,  in  an  action  against  the  company 
for  his  injury.  Enos  v.  Rhode  Island  Sub- 
urban R.  Co.  12:  244,  67  Atl.  5,  28  R.  I.  291. 

2.  Contributory   negligence  of  passen- 
ger; assumption  of  risk. 

a.  In  general. 

(See  alsd^  Carriers,  II.  a,  4)  b  (1)  in  Digest 
LJt.A.  1-70.  J 

Negligence  in  failing  to  discover  mistake  in 
ticket,   see  infra,  437,  439,  440. 

Contributory  negligence  of  disabled  or  in- 
competent passenger,  see  infra,  II.  j,  2. 

In  getting  on  or  off  train,  see  infra,  II.  k,  2. 

On  approaches  and  platforms,  see  infra,  II. 
1,  1,  b. 

As  to  baggage,  see  infra,  680,  681. 

Of  passenger  injured  by  automobile  when 
alighting  from  car,  see  Automobiles, 
65,  66. 

Presumption  and  burden  of  proof,  see  Evi- 
dence, 475-477. 

Admissibility  of  evidence  as  to  custom  of 
passengers  to  change  cars  while  train 
is  moving,  see  Evideiwe,  1538. 

Relevancy  of  evidence  as  to,  see  Evidence, 
1795. 

Question  for  jury  as  to,  see  Tbial,  II.  c,  8, 
b   (2). 

See  also  supra,  292. 

305.  A  carrier  of  passengers  is  bound  to 
exercise  the  utmost  practicable  care  and  dili- 
gence to  secure  the  safety  of  the  passenger, 
but  a  duty  of  reasonable  care  for  his  own 
safety  as  well  rests  upon  the  passenger  him- 
self. Interurban  R.  &  Terminal  Co.  v.  Han- 
cock, 6:  997,  78  N.  E.  964,  75  Ohio  St.  88. 

306.  One  bearing  the  relation  of  passen- 
ger to  a  railroad  company  is  not  relieved  of 
the  duty  of  exercising  ordinary  care  for  his 
own  safety.  Wright  v.  Atlantic  Coast  Line 
R.  Co.  25:  972,  66  S.   E.   848,  110  Va.   670. 

307.  The  care  which  a  passenger  on  a  rail- 
road train  must  exercise  for  his  own 
safety  is  not  the  same  as  the  carrier  must 
exercise  in  providing  safe  appliances,  but 
ordinary  care  is  sufficient.  Cleveland,  C.  C. 
&  St.  L.  R.  Co.  V.  Hadley,  16:  527,  82  N.  E. 
1025,    170   Ind.   204. 

308.  The  duty  of  a  woman  whose  way  to  a 
carrier's  depot  is  obstructed  by  trains  for  an 
unreasonable  time,  to  use  ordinary  care  to 


CARRIERS,  II.  g.  2. 


373 


Eoston  &   X.  Street  R.  Co.  50:  450,  100  N. 
E.  541,  213  Mass.  267.  (Annotated) 

317.  A  passenger  is  not,  in  the  absence 
of  a  warning  not  to  do  so,  negligent  per  se 
in  standing  in  a  car  as  it  moves  out  of  the 
station,  altlioiigh  there  may  be  an  unoc- 
cupied seat  in  the  car,  so  as  to  prevent  his 
holding  the  carrier  liable  in  case  he  is  in- 
jured by  a  violent  impact  of  the  two  sec- 
tions of  the  train  after  it  has  broken  in 
two.  Louisiana  &  N.  W.  R.  Co.  v.  Willis, 
50:  441,  158  S.  W.  114,  108  Ark.  477. 

(Annotated) 

338.  A  passenger  on  an  open  street  car 
cannot  be  said,  as  matter  of  law,  to  be  neg- 
ligent if,  when  compelled  to  stand  because 
of  the  crowded  condition  of  the  car,  he  leans 
against  a  side  post,  and  in  the  act  of  laugh- 
ing throws  his  head  back  a  few  inches  be- 
jond  the  post,  so  that  it  comes  in  contact 
with  a  car  passing  in  the  opposite  direc- 
tion. La  Barge  v.  Union  Electric  Co.  ig: 
213,  116  N.  W.  816,  138  Iowa,  691. 

319.  Danger  of  being  hit  by  a  passing  car 
is  not  such  a  peril  as  a  passenger  on  a  street 
car  is  bound  to  anticipate.  Georgetown  & 
T.  R.  Co.  v.  Smith,  5:  274,  25  App.  D.  C.  259. 

320.  That  one  injured  on  a  street  car  had 
been  in  the  habit  of  passing  over  the  road 
does  not  charge  him  with  knowledge  that  at 
the  point  of  the  accident  particular  cars 
come  within  3  inches  of  each  other  in  pass- 
ing. Georgetown  &  T.  R.  Co.  v.  Smith, 
5:  274,  25  App.  D.  C.  259. 

321.  One  who  takes  passage  on  a  street 
•car  so  crowded  that  he  is  compelled  to  stand 
in  the  door  assumes  the  risk  of  being 
pushed  off  the  car,  to  his  injury,  by  pas- 
sengers attempting  to  force  a  passage  out 
■of  it.  McCumber  v.  Boston  Elevated  R. 
Co.   32:  475,   93   N.   E,   698,   207   Mass.   569. 

(Annotated) 
JEteliance  on  employees  for  guidance. 

322.  A  passenger  may,  without  being 
chargeable  with  negligence,  act  upon  the 
direction  of  the  employees  in  charge  of  a 
car  as  to  the  route  to  be  taken  in  passing 
An  obstruction  to  reach  another  car,  which 
is  to  take  him  to  his  destination,  unless  it 
is  apparent  that  to  do  so  will  imperil  his 
safety.  Killmeyer  v.  Wheeling  Traction  Co. 
48:  683,  77  S.  E.  908,  72  W.  Va.  148. 

323.  A  passenger  in  a  Pullman  car  may 
rely  on  the  porter  for  assistance  and  guid- 
ance as  to  his  conduct,  as  the  representative 
of  the  railroad  company.  Gannon  v.  Chi- 
cago, R.  L  &  P.  R.  Co.  23:  1061,  11?  N.  W. 
«66,  141  Iowa,  37. 

Caretaker  of  stock. 

See  also  infra,  341,  380,  381. 

324.  A  traveler  on  a  stock  pass  does  not 
assume  the  risk  of  the  wrecking  of  the  train 
through  the  negligent  operation  of  the  air 
brakes.  Lake  Shore  &  M.  S.  R.  Co.  v. 
Teeters,  5:  425,  77  N.  E.  599,  166  Ind.  335. 

325.  One  who  is  accompanying  live  stock 
in  shipment,  and  has  occasion  to  walk  at 
night  between  his  train  a.nd  a  depot,  cannot 
be  said,  as  a  matter  of  law,  to  be  guilty 
of  negligence  if,  in  attempting  to  walk  in 
the  safe  space  between  two  tracks,  he  in- 
advertently gets  close  to  one  of  them,  so 
Digest   1-52  L.R.A.(N.S.) 


that  he  is  struck  by  an  approaching  train. 
Losey  v.  Atchison,  T.  &  S.  F.  R.  Co.  33:  414, 
114    Pac.    198,    84   Kan.   224. 

326.  Failure  of  a  shipper  of  stock,  walk- 
ing between  the  train  and  station  in  a  rail- 
road yard,  to  carry  a  lantern,  as  required 
by  his  contract,  will  not  prevent  holding 
the  carrier  liable  for  killing  him  by  a 
train  running  backward,  without  sufficient 
watch  or  signal.  Losey  v.  Atchison,  T.  & 
S.  F.  R.  Co.  33:  414,  114  Pac.  198,  84  Kan. 
224. 

327.  A  cattle  shipper  using  free  transpor- 
tation to  accompany  his  stock,  who  agrees 
to  remain  in  a  safe  place  in  the  caboose 
attached  to  the  train  while  it  is  in  motion, 
to  get  on  and  off  the  caboose  only  while  the 
train  is  stationary,  and  not  to  get  on  or  be 
on  any  freight  car  at  any  time,  must  regu- 
late his  conduct  at  stopping  places  by  his 
contraict,  and  at  such  places  is  obliged  to 
ascertain  and  know  whether  he  has  time  to 
examine  his  stock  and  return  to  his  place 
in  the  caboose  before  the  train  proceeds  on 
its  journey  before  attempting  to  do  so.  Les- 
lie V.  Atchison,  T.  &  S.  F.  R.  Co.  27:  646, 
107  Pac.  765,  82  Kan.  152. 

328.  The  jury  may  find  that  one  trans- 
ported by  a  railroad  company  to  attend 
stock  en  route  was  justified  in  using  the 
hasp  designed  to  fasten  the  door  to  assist 
himself  in  entering  the  car,  where  his  du- 
ties required  him  to  leave  the  car  when  it 
was  not  at  a  platform,  and  the  distance 
from  the  ground  was  such  that  some  means 
of  assistance  was  necessary,  while  none  oth- 
er was  provided,  it  appearing  that  similar 
hasps  had  been  used  by  him  and  railroad 
employees  on  other  occasions  for  a  similar 
purpose.  Blatcher  v.  Philadelphia,  B.  &  \Y. 
R.  Co.  16:  991,  31  App.  D.  C.  385. 
Passenger  on  logging  train. 

329.  One  permitted  to  ride  on  a  logging 
train  is  not  negligent  per  se  in  riding  on  a 
logging  truck;  nor  does  he  assume  the  risk 
of  injury  by  collision  with  another  train. 
Harvey  v.  Deep  River  Logging  Co.  12:  131, 
90  Pac.  501,  49  Or.  583. 

330.  Where  one  is  warned  that  the  po- 
sition which  he  has  taken  upon  a  logging 
train  is  a  very  dangerous  and  insecure  one, 
and  he  is  thrown  off  by  the  sudden  jolting 
of  the  train  in  coming  to  an  emergency  stop, 
and  killed,  the  owner  of  the  train  will  not 
be  held  responsible.  Johnson  v.  Louisiana 
R.  &  Nav.  Co.  36:  887,  56  So.  301,  129  La. 
332. 

Projection   from   window. 
Question  for  jury  as  to,  see  Trial,  386. 

331.  A  passenger  traveling  on  a  rapidly 
moving  car,  who  intentionally  and  needless- 
ly projects  his  arm,  or  a  part  of  it,  between 
horizontal  bars  guarding  the  lower  part  of 
the  car  window,  so  that  his  arm  is  struck 
and  fractured  by  a  car  passing  upon  an 
adjoining  track,  is  guilty  of  contributory 
negligence,  and  cannot  recover  for  the  in- 
jury sustained.  Interurban  R.  &  Terminal 
Co.  V.  Hancock,  6:  997,  78  N.  E.  964,  75  Ohio 
St.  88. 

382.  The  mere  fact  that  an  open  window 
in  a  railroad  car  falls  soon  after  the  car 


374 


CARRIERS,  II.  g,  2. 


starts  is  not  sufficient  to  charge  a  passenger 
with  knowledge  that  the  catch  is  defective 
so  as  to  charge  him  with  negligence  in  pro- 
truding his  arm  through  the  window  after 
raising  it  until  the  catch  is  latched.  Cleve- 
land, C.  C.  &  St.  L.  R.  Co.  V.  Hadley,  i6; 
527,  82  N.  E.   1025,  170  Ind.  204. 

333.  A  passenger  is  not  guilty  of  contribu- 
tory negligence,  as  matter  of  law,  in  raising 
a  window  in  a  rapidly  moving  car,  and  pro- 
truding his  arm  through  it  so  that  it  is 
injured  by  the  fall  of  the  window.  Cleve- 
land, C.  C.  &  St.  L.  R.  Co.  v.  Hadley,  16: 
527,  82  N.  E.  1025,  170  Ind.  204. 

334.  To  extend  the  hand  beyond  the 
guard  rail  of  an  open  car  to  flick  the  ashes 
from  a  cigar,  with  knowledge  that  there 
are  trees  near  the  track,  without  looking  to 
see  if  the  car  is  in  proximity  to  one,  is 
negligence  as  matter  of  law  which  will  pre- 
clude holding  the  carrier  liable  for  injury 
resulting  therefrom.  Malakia  v.  Rhode  Is- 
land Co.  50:  42,  89  Atl.   337,  36  R.  I.   149. 

(Annotated) 
Falling  over  fender. 

335.  A  street  car  company  is  not  liable 
for  injury  to  a  former  passenger  who,  after 
alighting  from  the  car,  is  injured  by  falling 
over  the  rear  fender,  which  has  become  loose 
from  the  fastenings  intended  to  keep  it  up 
while  the  car  is  running  in  the  opposite  di- 
rection, and  has  fallen  into  the  position 
which  it  should  occupy  if  it  were  in  front 
of  the  car,  where  the  company  does  not 
know  that  it  is  down,  and  the  passenger 
might  discover  that  fact  by  proper  atten- 
tion, although  the  accident  occurs  after  dark. 
Powers  V.  Connecticut  Co.  26:  405,  74  Atl. 
931,  82  Conn.  665.  (Annotated) 
Riding  on  top  of  car. 

Proximate  cause  of  injury,  see  Pboximate 

Cause,  91. 
Question  for  jury  as  to,  see  Trial,  398. 

336.  No  recovery  can  be  had  for  the 
death  of  one  thrown  by  a  jerk  from  the  top 
of  a  car,  on  which  he  was  riding  in  pref- 
erence to  riding  with  the  crowd  within, 
in  the  absence  of  anything  to  show  that  the 
jerk  was  so  violent  as  to  show  want  of 
proper  care  in  the  operation  of  the  train. 
Patterson  v.  Louisville  &  N.  R.  Co.  30:  425, 
128  S.  W.  1068,  138  Ky.  648. 

( Annotated ) 

337.  The  mere  suggestion  of  a  brakeman 
that  a  passenger  on  a  freight  train  ride  on 
top  of  the  caboose  does  not  relieve  him  from 
the  charge  of  gross  negligence  in  attempt- 
ing to  do  so.  McLean  v.  Atlantic  C.  L.  R. 
Co.  18:  763,  61  S.  E.  900,  1071,  81  S.  C.  100. 

338.  It  is  negligence  for  a  passenger  to 
ride  on  top  of  a  caboose  on  a  freight  train 
in  the  absence  of  any  emergency  rendering 
it  necessary.  McLean  v.  Atlantic  C.  L.  R. 
Co.  18:  763,  61  S.  E.  900,  1071,  81  S.  C.  100. 
Riding  in  cab  of  locomotive. 

339.  One  who,  without  paying  fare,  volun- 
tarily attempts  to  ride  in  the  cab  of  a  loco- 
motive at  the  invitation  of  those  in  charge 
of  the  train,  assumes  the  known  hazards  in- 
cident to  such  exposed  position,  and  cannot 
hold  the  railroad  company  liable  for  inju- 
ries caused  by  the  collision  of  the  cab  with 
Digest   1-52  L.R.A.(N.S.) 


a  car  negligently  left  on  a  side  track  so  as 
not  to  clear  the  main  track,  where  the  neg- 
ligence was  not  wanton,  and  no  injury  oc- 
curred to  anyone  else  on  the  train.  Clark 
V.  Colorado  &  N.  W.  R.  Co.  19:  988,  165  Fed. 
408,  91  C.  C.  A.  358. 
Crossing  track. 
Proximate  cause  of  injury,  see  Pboximats 

Cause,  74. 
After  alighting  from  street  car,  see  Street 

Railways,  72,  94. 
Negligence  as  question  for  jury,  see  Trial, 

394-396. 

340.  One  who,  after  leaving  a  railroad  car, 
for  his  own  convenience  voluntarily  leaves 
the  walk  provided  by  the  company  for  access 
to  the  street,  and  steps  upon  the  railroad 
track,  in  full  view  of  an  approaching  train, 
without  taking  the  slightest  precaution  for 
his  own  safety,  cannot  hold  the  company 
liable  for  injuries  caused  by  a  collision  with 
the  train.  Legge  v.  New  York,  N.  H.  &  H. 
R.  Co.  23:  633,  83  N.  E.  367,  197   Mass.  88. 

341.  One  accompanying  stock  as  a  pas- 
senger on  a  freight  train,  in  passing  between 
the  train  and  a  depot,  must  look  and  listen 
when  about  to  cross  an  intervening  track, 
his  obligation  in  that  respect  being  greater 
than  that  of  persons  passing  between  a  de- 
p'ot  and  a  passenger  train  that  has  stopped 
to  receive  and  discharge  passengers.  Atchi- 
son, T.  &  S.  F.  R.  Co.  V,  Coon,  27:  1013,  108 
Pac.  85,  82  Kan.  311. 

342.  If  a  street  railway  company  owes  an 
especial  duty  to  a  passenger  who  has  just 
alighted  from  its  car,  that  duty  does  not 
diminish  the  obligation  of  the  passenger  to 
take  reasonable  care  to  prevent  injury  by  a 
car  approaching  from  the  other  direction, 
on  an  adjoining  track.  Eagen  v.  Jersey 
City,  H.  &  P.  Street  R.  Co.  (N.  J.  Err.  & 
App.)  I?::  ^058,  67  Atl.  24,  74  N,  J.  L.  699. 

343.  One  who  alights  from  a  trolley  car 
in  which  he  has  been  a  passenger,  and,  pass- 
ing behind  it,  proceeds  to  cross  the  adjoin- 
ing track  without  looking  for  ears  approach- 
ing thereon,  except  from  a  point  where  his 
view  is  obstructed  by  the  car  from  which 
he  has  alighted,  is  chargeable  with  negli- 
gence contributing  to  the  injury  received, 
when  struck  by  a  car  which  is  not  running 
at  excessive  speed.  Eagen  v.  Jersey  City, 
H.  &  P.  Street  R.  Co.  (N.  J.  Err.  &  App.) 
n:  1058,  67  Atl.  24,  74  N.  J.  L.  699. 

344.  A  passenger  who,  after  alighting 
from  an  electric  car  onto  a  platform  pro- 
vided by  the  carrier,  attempts  to  pass  be- 
hind the  car  along  a  path,  also  provided  by 
the  carrier,  which  leads  through  a  fence  be- 
tween the  tracks  and  connects  with  the 
street,  and  steps  upon  the  other  track  in 
front  of,  and  is  injured  by,  a  car  coming 
from  the  opposite  direction,  which  can  be 
plainly  seen  for  250  feet,  will  be  held  eitjier 
not  to  have  looked  for  the  car,  or  to  have 
taken  the  risk  of  passing  in  front  of  it; 
and  therefore  he  cannot  hold  the  carrier 
liable  for  the  injury.  Yevsack  v.  Lacka- 
wanna &  W.  V.  R.  Co.  18:  519,  70  Atl.  837, 
221  Pa.  493. 

345.  One  who  has  assumed  the  relation  of 
a  passenger  to  the  carrier,  and  crosses  the 


CARRIERS,  II.  g.  2. 


375 


track  upon  the  implied  invitation  of  the 
carrier  for  the  purpose  of  boaj-ding  a  car,  is 
not  necessarily  guilty  of  contributory  neg- 
ligence in  failing  to  look  and  listen  for  an 
approaching  car.  Karr  v.  Milwaukee  Heat, 
Light,  &  Traction  Co,  13:  283,  113  N.  W. 
62,  132  Wis.  662. 

346.  A  passenger  who  is  required  to  cross 
the  track  on  which  his  train  is  approaching, 
in  order  to  board  it,  may  ordinarily  rely 
on  the  invitation  of  the  station  agent  to 
cross  at  a  particular  time,  as  an  assurance 
that  it  may  be  done  in  safety.  Dieckmann 
V.  Chicago  &  N.  W.  R  Co.  31:  338,  121  N. 
W.  676,   145  Iowa,  250. 

347.  The  fact  that  a  passenger  who  is  re- 
quired to  cross  in  the  niglit  to  board  a 
train,  the  track  by  which  it  is  approach- 
ing, undertakes  '^o  do  so  after  the  train  is 
announced  and  in  sight,  is  not  negligence 
per  se,  at  least  where  he  follows  or  accom- 
panies across  the  track  the  agent  wl^  made 
the  announcement.  Dieckmann  v.  Chicago 
&  N.  VV.  R.  Co.  31 :  338,  121  N.  W.  676,  145 
Iowa,  250. 

348.  It  ia  not  negligence  per  se  for  a  pas- 
senger who  IS  required  to  cross  a  track  of  a 
railroad  company  to  reach  his  train  on  an- 
other track,  to  fail  to  stop,  look,  and  listen 
for  trains  on  that  track,  when  his  attempt 
to  cross  is  made  at  the  very  time  that  the 
train  he  is  to  take  is  scheduled  to  stop  at 
the  station.  Illinois  C.  R  Co.  v.  Daniels, 
27:  128,   50   So.   721,   96   Miss.   314. 

(Annotated) 

349.  A  passenger  at  a  railroad  station  for 
the  purpose  of  boarding  a  train  is  not 
bound,  as  matter  of  law,  to  look  and  listen 
for  approaching  trains  before  crossing  in- 
tervening tracks.  Chicago,  R.  I.  &  P.  R. 
Co.  V.  Stepp,  22:  350,  164  Fed.  785,  90  C. 
C.  A.  431. 

350.  The  ordinary  rule  of  "look  and 
listen"  is  not  applicable  to  passengers  and 
other  persons  rightfully  about  a  train  which 
has  stopped  at  a  station,  on  a  side  track 
so  situated  that  other  tracks  are  between 
it  and  the  depot  platform;  but  they  have  a 
right  to  assume  that  they  will  be  protected 
from  danger  by  the  company.  Atchison,  T. 
&  S.  F.  R.  Co.  V.  McElroy,  13:  620,  91  Pac. 
785,  76  Kan.  271. 

351.  A  passenger  cannot  hold  the  railroad 
company  liable  for  his  injury,  because  of  its 
failure  properly  to  light  its  platform,  if,  be- 
ing a  stranger  and  going  from  the  waiting 
room  onto  a  safe  platform,  he  approaches- 
the  track,  half  facing  the  approaching  train, 
and,  with  the  headlight  in  full  view,  need- 
lessly attempts  to  cross  the  track  directly 
in  front  of  the  engine  under  the  erroneous 
impression  that  it  had  stopped.  Pere  Mar- 
quette R.  Co.  V.  Strange,  20:  1041,  84  N.  E. 
819,  171  Ind.  160. 

After  ejection. 

352.  A  passenger  negligently  expelled,  be- 
cause of  failure  to  produce  his  ticket,  from 
a  train  at  a  flag  station  where  there  is  no 
shelter  and  with  the  surroundings  of  which 
he  is  not  familiar,  after  dark  on  a  cold  and 
stormy  night,  is  not  per  se  negligent  in  at-  | 
tempting  to  reach  shelter  at  a  station  re 
Digest  1-52  I..B.A.(N.S.) 


eently  passed,  by  walking  along  the  rail- 
road track,  rather  than  by  seeking  a  high- 
way. Tilburg  V.  Northern  C.  R.  Co. 
12:  359,  66  Atl.  846,  217  Pa.  618. 

(Annotated) 
AVhen  put  off  at  throng  place. 

353.  A  passenger  induced  by  the  negligent 
act  of  the  conductor  to  leave  a  street  car  at 
a  point  remote  from  her  destination  is  under 
no  legal  duty  to  apply  for  shelter  at  houses 
in  the  vicinity  of  the  place  where  she  alights, 
rather  than  to  attempt  to  reach  her  desti- 
nation on  foot,  over  a  highway  which  is  in 
a  reasonably  safe  condition  for  travel  by 
pedestrians.  Georgia  R.  &  E.  Co.  v.  Mc- 
Allister, 7:  1 177,  54  S.  E.  957,  126  Ga.  447. 

b.  Riding  on  platform,  steps,   or  foot- 
board, 

(See  also  Carriers,  II.  a,  Jf,  b  (Z)  in  Digest 
L.R.A.  1-10.) 

Rule  as  to  standing- on  platform,  see  supra, 
51,  52. 

Duty  to  person  rightfully  on  platform,  see 
supra,  244-246,  247,  256,  276,  284-288. 

Compelling  passenger  to  ride  on  platform, 
see  supra,  266,  267. 

Sufficiency  of  evidence  to  show  that  con- 
ductor of  street  car  directed  passenger 
to  front  platform,  see  Evidence,  2312. 

As  proximate  cause  of  injury,  see  Proxi- 
mate Cause,  92. 

As  question  for  jury,  see  Trial,  390,  397, 
400-402. 

354.  One  voluntarily  and  unnecessarily 
riding  on  the  platform  of  a  rapidly  moving 
railroad  car  is  guilty  of  contributory  negli- 
gence barring  recovery  for  injury  caused  by 
falling  therefrom  while  so  riding.  Norvell 
V.  Kanawha  &  M.  R.  Co.  29:  325,  68  S.  E. 
288,  67  W.  Va.  467. 

355.  A  passenger  on  a  mixed  train  ia 
negligent,  as  matter  of  law,  in  riding  upon 
the  platfoon  when  there  is  plenty  of  room  in 
the  car,  merely  because  the  weather  is  warm 
and  he  prefers  to  ride  there.  Wagner  v. 
Atlantic  Coast  Line  R.  Co.  19:  1028,  61  S.  E. 
171,  147  N.  C.  315. 

356.  The  fact  that  the  rules  of  a  railroad 
company  provide  that  passengers  may  stand 
on  the  platform  only  when  there  are  no 
seats  in  the  car  will  not  preclude  a  pas- 
senger from  obtaining  damages  for  the 
negligence  of  the  car  crew,  because  there 
were  seats  in  the  car,  where  the  passenger 
was  riding  on  the  platform  with  the  sanc- 
tion of  the  employees  of  the  railroad  com- 
pany. McMahon  v.  New  Orleans  R.  &  L. 
Co.   32:  346,  53   So.   857,   127  La.   544. 

357.  The  front  platform  of  a  street  car  is 
not  so  imminently  dangerous  as  to  render 
the  act  of  a  passenger  in  occupying  it  at 
the  direction  of  the  conductor  negligence 
per  se.  Mittleman  v.  Philadelphia  R.  T.  Co. 
18:  503,  70  Atl.  828,  221  Pa.  485. 

358.  A  workman  who,  In  attempting  to 
board  a  street  car  when  encumbered  with 
tools  and  materials  to  be  used  in  his  work 
which  may  be  objectionable  to   other  pas- 


376 


CARRIERS,  II.  g,  2. 


sengers  and  obstruct  the  ingress  and  egress 
to  and  from  the  car,  is  told  by  the  con- 
ductor to  occupy  the  front  platform,  is  not 
negligent  per  se  in  obeying  the  order.  Mit- 
tleman  v.  Philadelphia  R,  T.  Co.  i8:  503,  70 
Atl.  828,  221  Pa.  485. 

359.  One  who  undertakes  to  ride  on  the 
running  board  of  a  street  car,  outside  of  the 
lower  bar,  is  negligent  per  se,  and  cannot 
recover  for  injuries  incident  to  his  position, 
whether  he  could  have  gotten  a  safer  posi- 
tion or  not.  Harding  v.  Philadelphia  Rapid 
Transit  Co.  10:  352,  66  Atl.  151,  217  Pa.  69. 

( Annotated ) 

360.  A  passenger  injured  by  collision  with 
a  trolley  pole  while  riding  on  the  running 
board  of  a  street  car  cannot  hold  the  car- 
rier liable  for  the  injury  if  he  knew  of  the 
danger  and  could  have  avoided  it  by  the  ex- 
ercise of  reasonable  care.  Burns  v.  Johns- 
town Pass.  R.  Co.  2:  1 191,  62  Atl.  564,  213 
Pa.  143.  (Annotated) 

361.  Freedom  from  contributory  negli- 
gence cannot  be  declared  as  matter  of  law 
where  a  passenger  injured  by  a  train  going 
into  a  washout  voluntarily  rode  on  the  plat- 
form of  the  fast-moving  train  when  there 
was  room  inside  the  car,  in  the  nighttime, 
in  the  midst  of  or  soon  after  a  severe  rain 
storm,  and  no  one  inside  the  car  was  in- 
jured. Miller  v.  Chicago,  St.  P.  M.  &  0. 
R.  Co.  17:  rsS,  115  N.  W.  794,  135  Wis.  247. 

(Annotated) 

362.  A  fireman  riding  free  on  a  street 
car,  who,  contrary  to  known  rules  of  the 
company  requiring  him  to  ride  on  the  rear 
platform,  and  forbidding  persons  to  ride 
on  the  running  boards  of  cars  which  are 
next  to  the  parallel  track,  takes  his  position 
on  such  running  board,  is  a  mere  licensee, 
and  cannot  hold  the  company  liable  for  in- 
juries negligently  inflicted  upon  him  while 
there;  and  it  is  immaterial  that  the  con- 
ductor assented  to  his  remaining  there, 
since  he  had  no  authority  to  waive  the 
rules  of  the  company.  Twiss  v.  Boston 
Elevated  R.  Co.  32:  728,  94  N.  E.  253,  208 
Mass.  108. 

363.  A  custom  on  the  part  of  a  street  rail- 
way company  to  permit  passengers  to  ride 
in  the  vestibules  of  cars  is  immaterial  on 
the  question  of  due  care  of  a  passenger  in 
refusing  to  obey  a  direction  of  the  con- 
ductor to  go  inside  thie  car,  in  accordance 
with  a  rule  of  the  company,  since,  upon  no- 
tice of  intention  to  enforce  the  ,rule,  the 
custom  ceases  to  operate.  Liversidge  v. 
Berkshire  Street  R.  Co.  36:  993,  96  N.  E. 
665,  210  Mass.  234. 

Of  CTOw^ded  car. 

Presumption  and  burden  of  proof  as  to,  see 

Evidence,  476. 
As  question  for  jury,  see  Tbial,  400,  401. 

364.  It  is  not  negligence  to  ride  on  a 
railroad  car  platform  when  the  train  is  so 
crowded  that  one  cannot  reasonably  enter 
the  car,  and  the  carrier  acquiesces  in  the 
use  of  such  accommodation  by  collecting 
fare  or  some  other  indicative  act.  Norvell 
V.  Kanawha  &  M.  R.  Co.  29:  325,  68  S.  E. 
288,   67   W,    Va.   467.  (Annotated) 

365.  The  mere  riding  on  the  platform  of  a 
Digest  1-52  L.R.A.(N.S.) 


crowded  street  car,  on  the  invitation  of  the 
railway  company,  does  not  constitute  con- 
tributory negligence  per  sc.  Lobner  v.  jVlet- 
ropolitan  Street  R.  Co.  21:972,  101  Pac. 
463,  79  Kan.  811.  (Annotated) 

366.  A  passenger  does  not,  by  boarding  a 
car  so  crowded  that  the  only  available 
space  is  on  the  steps,  assume  the  risk  of 
injury  from  riding  in  that  position  by  a 
negligent  operation  of  the  car.  South  Cov- 
ington &  C.  Street  R.  Co.  v.  Hardy,  44:  32, 
153  S.  W.  474,  152  Ky.  374. 

367.  It  is  not  negligence  as  matter  of  law 
to  ride  upon  the  platform  of  a  street  car, 
notwithstanding  a  notice  that  it  is  danger- 
ous to  do  so,  and  the  fact  that  at  the  time 
there  is  room  within  the  car,  wliere  the 
company  customarily  so  overloads  its  cars 
that  passengers  must  of  necessity  ride  up- 
on the  platforms.  Capital  Traction  Co.  v. 
Brown,  12:  831,  29  App.  D.  C.  473. 

(Annotated) 

368.  One  voluntarily  becoming  a  passenger 
on  a  street  car  so  crowded  that  he  is  com- 
pelled to  ride  in  the  vestibule,  with  knowl- 
edge of  a  rule  that  persons  riding  on  plat- 
forms do  so  at  their  own  risk,  assumes  the 
risk  of  injury  from  being  compelled  tem- 
porarily to  alight  to  enable  other  passen- 
gers to  leave  the  car,  including  that  of  hav- 
ing the  car  negligently  started  before  he 
resumes  a  safe  position.  Tompkins  v.  Bos- 
ton Elevated  R.  Co.  20:  1063,  87  N.  E.  488, 
201  Mass.  114. 

369.  One  who  has  paid  his  fare  and  been 
received  as  a  passenger  on  a  crowded  street 
car  has  not,  as  matter  of  law,  a  right  to 
ride  in  the  vestibule  against  the  order  of 
the  conductor,  until  he  can,  with  reason- 
able diligence,  gain  admission  inside  the 
car,,  but  he  must  comply  with  the  request 
either  to  go  inside  or  to  get  off  the  car. 
Liversidge  v.  Berkshire  Street  R.  Co.  36: 
993,  96  N.  E.  665,  210  Mass.  234. 

( Annotated ) 

370.  One  who,  after  giving  up  his  place 
in  a  street  car  to  a  woman,  is  forced  to 
ride  upon  the  platform,  where  he  is  injured 
by  contact  with  a  passing  wagon,  in  order 
to  hold  the  street  car  company  liable  for 
the  injury,  has  the  burden  of  showing  that 
it  was  negligent  in  exposing  him  to  known 
and  avoidable  danger,  since  he  has  forfeit- 
ed the  advantage  of  the  presumption  that 
the  accident  happened  through  its  negli- 
gence. Paterson  v.  Philadelphia  Rapid 
Transit  Co.  12:  839,  67  Atl.  616,  218  Pa.  359. 

371.  A  passenger  on  a  street  car  cannot 
be  said  to  have  voluntarily  remained  on  the 
steps  so  as  to  assume  the  risk  of  injury 
from  maintaining  that  position,  if  he  could 
not  have  reached  a  position  on  the  platform 
or  in  the  car  without  pushing  or  shoving 
through  passengers  who  have  already 
crowded  the  only  other  available  standing 
places.  South  Covington  &  C.  Street  R.  Co. 
v.  Hardy,  44:  32,  153  S.  W.  474,  152  Ky. 
374. 

372.  A  recovery  against  a  street  railway 
company  for  the  death  of  a  man  who  was 
struck  by  the  beam  of  a  bridge  while  riding 
outside  of  a  car  having  a  closed  vestibule. 


CARRIERS,  II.  h,  1. 


377 


which  was  not  opened  to  allow  his  entrance 
because  of  its  crowded  condition,  is  not  pre- 
cluded by  the  fact  that  before  the  car  left 
the  station  at  which  the  person  got  upon 
it,  an  employee  of  the  company  warned  him 
of  the  danger  of  his  position  and  tried  to 
persuade  him  to  get  off  the  car,  and  even 
used  physical  force,  without  avail,  where 
the  conductor  of  the  car  was  guilty  of  wan- 
'ton  negligence  in  running  the  car  without 
stopping,  or  even  slackening  speed,  past  a 
station  and  onto  the  bridge,  with  knowl- 
edge that  the  man  was  on  the  steps  and 
that  he  must  necessarily  be  struck  by  the 
pillars  of  the  bridge.  Harbert  v.  Kansas 
City  Elevated  R.  Co.  50:  850,  138  Pac.  641, 
91  Kan.  605. 

373.  A  street  car  company  which  has  pro- 
vided 22  inches  in  the  clear  between  cars 
running  in  opposite  directions  on  its  tracks 
holds  to  a  passenger  who  voluntarily  as- 
sumes a  position  upon  the  inside  running 
board  of  a  car  the  duty  of  exercising  only 
ordinary  care  to  prevent  his  injury  by  a 
passing  car,  although  that  is  the  only  posi- 
tion available  to  him  because  of  the  crowd- 
ed condition  of  the  car.  Gregory  v.  Elmira 
Water,  L.  &  R.  Co.  18:  160,  83  N.  E.  32, 
190  N.  Y.  363.  (Annotated) 
Preparatory  to   aligbting. 

Question  for  jury  as  to,  see  Trial,  402. 
See  also  supra,  104,  222. 

374.  A  passenger  who,  without  necessity, 
leaves  a  car  having  ample  accommodation, 
as  the  train  approaches  his  destination,  but 
before  it  begins  to  slacken  speed,  and  takes 
his  position  on  the  platform,  cannot  hold 
the  carrier  liable  in  case  he  is  injured  by 
the  train  coming  into  collision  with  another 
standing  at  the  station,  where  no  injury 
results  to  passengers  who  retain  their  seats 
inside  the  car.  Chicago  G.  W.  R.  Co.  v. 
V.  Mohaupt,  18:  760,  162  Fed.  665,  89  C.  C. 
A.  457. 

375.  A  railroad  company  cannot  be  held 
liable  for  injuries  to  a  passenger  who  falls 
from  a  train  before  it  has  reached  his  sta- 
tion, because  it  left  the  vestibule  doors 
open  80  that  sleet  froze  on  the  platform 
and  rendered  it  slippery,  where  he  left 
the  car  and  stood  on  the  platform  con- 
trary to  the  directions  of  the  conductor. 
Louisville,  H.  &  St.  L.  R.  Co.  v.  Gregory, 
35:  317,  133  S.  W.  805,  141  Ky.  747,  136  S. 
W.  154,  143  Ky.  300. 

While  changing  cars  or  seat. 
As  question  for  jury,  see  Trial,  397. 

376.  A  street  car  company  is  not  liable  for 
injury  to  a  boy  who,  upon  being  harshly  told 
by  the  conductor  to  show  him  his  father, 
who  the  boy  asserts  has  paid  his  fare,  at- 
tempts to  go  to  the  other  end  of  the  car, 
along  the  running  board,  and  falls  off  to 
his  injury,  where  there  is  nothing  to  lead 
the  conductor  to  anticipate  such  action  by 
the  boy,  who  might  have  pointed  out  his 
father  without  changing  his  position.  Good- 
fellow  V.  Detroit  United  R.  Co.  20:  1123, 
119  N.  W.  900,  155  Mich.  578.     (Annotated) 

377.  A  notice  in  a  street  car,  "Avoid  acci- 
dents; wait  until  the  car  stops,"  does  not 
impose  upon  passengers  the  risk  of  attempt- 
Digest  1-52  Ii.B.A.(X.S.) 


ing  to  change  seats  by  the  use  of  the  run- 
ning board  while  the  car  is  in  motion.  Cam- 
eron V.  Lewiston,  B.  &  B.  Street  R.  Co.  18: 
497,  70  Atl.  534,  103  Me.  482. 

378.  A  street-car  passenger  is  not  negli- 
gent per  se  in  failing  to  anticipate  that  the 
carrier  may  maintain  a  trolley  pole  so  close 
to  the  running  board  of  the  car  that  he 
cannot  step  upon  the  board  to  change  seats 
while  the  car  is  in  motion  without  danger 
of  collision  with  the  pole,  or  in  making  the 
attempt  to  do  so,  which  results  in  a  collision 
with  the  pole.  Cameron  v.  Lewiston,  B.  & 
B.  Street  R.  Co.  18:  497,  70  Atl.  534,  103 
Me.  482. 

379.  A  passenger  on  an  uncrowded  street 
car  assumes  the  risk  of  injury  from  col- 
lision with  objects  near  the  track  for  which 
the  carrier  is  not  responsible,  by  stepping 
onto  the  running  board  alongside  of  the 
car,  for  the  purpose  of  changing  his  seat, 
while  the  car  is  in  motion.  Capital  Trust 
Co.  V.  Central  Kentucky  Traction  Co.  49: 
135,  160  S.  W.  767,  156  Ky.  30.    (Annotated) 

c.  Riding  in  wrong  car. 

(See  also  Carriers,  II.  a,  4)  b  (3)  in  Digest 
L.R.A.  1-10.) 

Question  for  jury  as  to,  see  Trial,  399. 

380.  Acquiescence  on  the  part  of  a  rail- 
road company  for  several  day-  in  the  occu- 
pation by  a  stock  owner  of  the  car  with  the 
stock  is  equivalent  to  his  assignment  to  tliat 
place,  in  determining  the  question  of  his 
negligence  in  being  there.  Lake  Shore  &  M. 
S.  R.  Co.  V.  Teeters,  5:  425,  77  N.  E,  599, 
166  Ind.  33.5. 

381.  An  owner  of  stock,  who  has  contract- 
ed to  protect  the  property  from  the  dangers 
of  travel,  is  not  to  be  accounted  a  wrongdoer 
because  he  elects,  without  objection  from 
the  carrier,  to  remain  in  ths  car  with  the 
stock.  Lake  Shore  &  M.  S.  R.  Co.  v.  Teeters, 
5:  425,  77  N.  E.  599,  166  Ind.  335. 

h.  Ejection  of  passenger  or  trespasser. 

"    ""'    ''    ' '  1.  In  general. 

(See  also  Carriers,  II.  a,  5,  a,  in  Digest 
L.R.A.  1-10.) 

Assault  in  ejecting,  see  supra,  147,  149. 

Contributory  negligence  of  passenger  after 
ejectioA,  see  supra,  352. 

Ejection  of  passenger  from  station,  see 
infra,  618,  619. 

Survival  of  cause  of  action  for,  see  Abate- 
ment AND  Revival,  16. 

Reversible  error  in  instructions  in  action 
for,  see  Appeal  and  Error,  1311,  1345, 
1371. 

Damages  for  threat  to  expel  passenger,  see 
Appeal  and  Error,  1361;  Damages, 
264,  265. 

Punitive  damages  for  ejection,  see  Appeal 
and  Error,  1371;  Damages,  83-91. 

Measure  of  damages  for,  generally,  see  Dam- 
ages, III.  c,  2. 


378 


CARRIERS,  11.  h,  1. 


New  trial  for  excesssive  damages  in  action 
for,  see  Appeal  and  Error,  1622. 

Mitigation  of  damages  for  ejection,  see 
Evidence,  2009. 

Recovery  for  mental  anguish  Because  of, 
see  Damages,  667-670. 

Evidence  in  action  for,  see  Evidence,  1363, 
1429-1431,  1645,  1805,  1867,  1878, 
2009. 

Reversible  error  as  to  evidence  in  action  for, 
see  Appbxal  and  Error,  1145. 

Right  of  action  for  ejection  as  asset  which 
will  support  appointment  of  adminis- 
trator, see  Executors  and  Adminis- 
trators, 5. 

Conclusiveness  of  judgment  in  action  for, 
see  Judgment,  258. 

Pleading  in  action  for,  see  Pleading,  107, 
176,  265,  266. 

Necessity  of  specially  pleading  defense  in 
action  for,  see  Pleading,  502. 

Ratification  of  ejection  by  agent,  see 
Principal  and  Agetjt,  93. 

Proximate  cause  of  sufferings  of  ejected 
passenger,  see  Proximate  Cause,  95. 

SuflBciency  of  evidence  to  go  to  jury,  see 
Trial,  138. 

Question  for  jury  in  action  for,  see  Trial, 
175,  301,  380. 

Impeachment  of  motorman  in  action  for, 
see  Witnesses,  183. 

See  also  supra,  218,  219,  223,  224;  infra, 
476. 

382.  A  passenger  expelled  from  a  train 
in  violation  of  the  terms  of  his  contract 
may  hold  the  carrier  liable  for  full  damages, 
notwithstanding  a  clause  in  his  ticket  re- 
quiring him,  in  case  of  dispute,  to  pay  his 
fare  and  present  his  claim  to  the  company. 
Cherry  v.  Chicago  &  A.  R.  Co.  a:  695,  90  S. 
W.  381,  191  Mo.  489. 

383.  That  a  carrier  has  chartered  a  train 
and  given  the  charterers  the  sole  privilege 
of  collecting  fares  and  fixing  their  amount 
does  not  exempt  it  from  liability  for  the 
ejection  of  a  passenger  therefrom,  since  the 
charterers  in  so  doing  are  the  agents  of  the 
carrier,  which  cannot  by  contract  relieve  it- 
self from  liability  for  their  wrongful  a'cts. 
Kirkland  v.  Charleston  &  W.  C.  R.  Co.  15: 
425,  60  S.  E.  668,  79  S.  C.  273. 

(Annotated) 

384.  A  common  carrier  which,  by  mis- 
take, ejects  a  passenger  who  has  in  no  way 
forfeited  his  rights  as  such,  is  liable  there- 
for, although  its  servants  acted  in  good 
faith  in  ejecting  him,  such  good  faith  be- 
ing available  only  to  defeat  a  recovery  of 
punitive  damages.  Seaboard  Air  Line  R. 
Co.  V.  O'Quin,  2:  472,  52  S.  E.  427,  124  Ga. 
357.  (Annotated) 

385.  A  carrier  which  undertakes,  through 
its  servants,  to  exercise  its  right  to  eject 
from  its  cars  passengers  who  have  been 
gtiilty  of  disorderly  conduct,  acts  at  its  peril 
in  determining  their  identity.  Seaboard 
Air  Line  R.  Co.  v.  O'Quin,  2:  472,  52  S.  E. 
427,    124   Ga.   357. 

386.  A  railroad  company  is  liable  for  the 
act  of  a  brakeman  in  its  employ  who  ejects 
from  a  train  a  passenger  who  is  entitled  to 
Digest  1-52  I..R.A.(N.S.> 


ride.     Lindsay  v.  Oregon  Short  Line  R.  Co. 
12:  184,  90  Pac.  984,  13  Idaho,  477. 

3&7.  A  passenger  wrongfully  expelled 
from  a  train  may  recovor  diimagos  al- 
though the  employee  expelling  him  was 
guilty  of  only  ordinary  negligence,  and  not 
of  a  wilful  wrong.  Lindsay  v.  Oregon 
Short  Line  R.  Co.  12:  184,  90  Pac.  934,  13 
Idalio,  477. 

388.  One  who,  in  obedience  to  the  com- 
mand of  the  captain  and  a  police  officer 
under  his  direction,  leaves  a  boat  on  which 
he  has  taken  passage,  is  ejected  therefrom 
within  the  rule  rendering  a  carrier  liable 
for  wrongful  ejection  of  passengers.  Rea- 
sor  V.  Paducah  &  I.  Ferry  Co.  43:  820,  153 
S.  W.  222,  152  Ky.  220. 

389.  One  holding  a  street  car  ticket  en- 
titling him  to  transportation  to  any  one  of 
several  points  at  different  distances  along 
the  line  from  the  starting  point,  who  boards 
a  car  plainly  marked  as  going  only  as  far 
as  the  nearest  stop  to  which  the  ticket  enti- 
tles him  to  ride,  is  not  entitled  to  damages 
in  case  the  car  stops  at  that  point  and  goes 
back,  and  he  is  ejected  therefrom  without 
undue  force  after  being  refused  a  transfer 
to  another  car.  Mills  v.  Seattle,  R.  &  S.  R. 
Co.  19:  704,  96  Pac.  520,  50  Wash.  20. 

(Annotated) 

390.  A  railroad  company  is  liable  in  tort 
for  using  more  force  than  necessary  in  eject- 
ing from  its  traip  a  person  whom  it  has  a 
right  to  eject.  Virginia  &  S.  W.  R.  Co.  v. 
Hill,  6:  899,  54  S.  E.  872,  105  Va.  729. 

391.  A  passenger  whose  right  upon  a 
train  has  terminated  cannot  hold  the  car- 
rier liable  for  iujury  and  insult  due  to  his 
wrongful  refusal  to  leave  the  car  at  the 
command  of  the  conductor,  which  renders 
forcible  ejection  necessary.  Virginia  &  S. 
W.  R.  Co.  V.  Hill,  6:  899,  54  S.  E.  872,  105 
Va.  729. 

392.  A  high  degree  of  care  should  be  exer- 
cised before  a  passenger  ill  and  without 
money  is  expelled  from  a  train  at  a  way 
station,  hundreds  of  miles  from  his  destina- 
tion. Forrester  v.  Southern  P.  Co.  48:  i, 
134  Pac.  753,  136  Pac.  705,  36  Nev.  247. 
Of  trespasser. 

Contributory  negligence  of  ejected  tres- 
passer, see  infra,  575. 

Damages  for  use  of  excessive  force,  see 
Damages,  272. 

Question  for  jury  as  to  liability  for,  see 
Trial,  769. 

See  also  infra,  419,  420,  444. 

393.  If,  in  ejecting  a  trespasser  or  li- 
censee from  one  of  its  passenger  trains,  the 
servants  and  employees  of  the  company 
use  more  force  than  is  reasonably  necessary, 
or  if,  after  he  is  ejected,  they  wantonly 
and  wilfully  injure  him,  the  company  is 
liable  for  such  injury.  Chicago,  R.  I.  & 
P.  R.  Co.  v.  Evans,  51:608,  138  Pac.  804, 
41  Okla.  411. 

394.  A  street  car  company  cannot  eject  a 
trespasser  from  its  car  while  the  car  is  in 
motion,  so  as  to  endanger  life  or  limb,  or 
wilfully  or  unnecessarily  assault  him.  Mills 
v.  Seattle,  R.  &  S.  R.  Co.  19:  704,  96  Pac. 

'  520,  50  Wash.  20. 


CARRIERS,  II.  h.  2. 


379 


395.  A  conductor  is  bound  to  exercise  or- 
dinary care  in  putting  a  trespasser  otl  a 
moving  train,  and  is  charged  witii  wliat  he 
knows,  and  what,  in  tlie  exercise  of  ordinary 
care,  he  should  Icnow,  of  the  danger  of  such 
proceeding.  Doggett  v.  Chicago,  B.  &  Q. 
R.  Co.  13:  364,  112  N.  W.  171,  134  Iowa, 
€90.  (Annotated) 

396.  A  railroad  Company  is  not  liable  for 
the  act  of  its  conductor  in  compelling  a 
■crippled  trespasser  to  leave  a  moving  train 
from  which  a  person  of  ordinary  capacity 
might  have  alighted  in  safety,  unless  he 
knew  of  the  crippled  condition;  and  the  fact 
that,  in  the  exercise  of  ordinary  care,  he 
might  have  known  of  it,  is  immaterial. 
Doggett  V.  Chicago,  B.  &  Q.  R.  Co.  13:  364, 
112  N.  W.  171,  134  Iowa,  690.  (Annotated) 

397.  A  rule  of  a  railroad  company  that 
^'brakemen  will  not  eject  any  person  from 
a  train  except  by  special  direction  of  the 
conductor  and  in  his  presence"  does  not,  as 
matter  of  law,  absolve  it  from  liability  for 
injury  to  a  trespasser  through  his  wanton 
ejection  by  a  brakeman  from  a  freight  train, 
where  there  is  evidence  tending  to  show  that 
the  brakeman's  act  was  done  in  the  course 
of  his  employment,  with  a  view  to  the 
furtherance  of  the  company's  business,  and 
within  the  scope  of  his  agency.  Barrett  v. 
Minneapolis,  St.  P.  &  S.  Ste.  M.  R.  Co.  18: 
416,  117  N.  W.  1047,  106  Minn.  51. 

398.  A  brakeman  on  a  freight  train  has 
no  implied  authority  to  remove  trespassers 
therefrom,  so  as  to  charge  the  railroad  com- 
pany with  liability  for  injuries  infiicted  in 
the  performance  of  the  act.  Harrington  v. 
Boston  &  M.  R.  Co.  45:  813,  100  N.  E.  606, 
213  Mass.  338.  (Annotated) 

399.  A  railroad  company  is  responsible 
for  the  tort  of  its  brakeman  in  throwing 
from  a  moving  passenger  train,  to  his  in- 
jury, a  minor  who  was  really,  although 
not  apparently,  a  trespasser  thereon,  ir- 
respective of  any  authority  to  the  servant, 
either  express  or  implied,  to  determine  the 
question  whether  or  not  the  injured  person 
was  a  trespasser,  or  to  expel  or  not  to 
expel  him.  Penas  v.  Chicago,  M.  &  St.  P. 
R.  Co.  30:  627,  127  N.  W.  926,  112  Minn. 
203. 

400.  A  brakeman  on  a  freight  train  is 
prima  facie  presumed  to  have  authority  to 
eject  trespassers  therefrom,  so  as  to  obviate 
the  necessity  of  proving  such  authority  in 
the  first  instance,  in  an  action  to  hold 
the  railroad  company  liable  for  an  injury 
caused  by  a  wrongful  ejection  by  him. 
Golden  v.  Northern  P.  R.  Co.  34:  11 54,  104 
Pac.   549,  39  Mont.  435. 

401.  A  baggageman  with  express  author- 
ity to  notify  the  conductor  of  trespassers 
upon  the  train,  and,  upon  request,  to  aid 
him  in  expelling  them,  may  be  found  to 
be  acting  within  the  scope  of  his  authority 
in  expelling  one  without  reporting  him  to 
the  conductor,  so  as  to  render  the  railroad 
company  liable  in  case  he  causes  injury 
by  the  use  of  excessive  and  unusual  violence 
in  so  doing.  Daley  v.  Chicago  &  N.  W. 
R.  Co.  32:  1 164,  129  N.  W.  1(562,  145  Wis. 
249.  (Annotated) 
Digest  1-52  I..R.A.(N.S.) 


From    sleeping    car   berth. 

402.  A  representation  by  an  agent  of  a 
sleeping  car  company  when  selling  accom- 
modation in  its  car,  that  the  purchaser  may 
have  his  transportation  authenticated  at  a 
more  remote  point  than  that  called  for  by 
it,  does  not  constitute  a  guaranty  that  he 
will  be  carried  to  the  remote  point  in  case 
the  ticket  is  not  authenticated,  so  as  to 
charge  it  with  liability  in  damages  in  case 
he  is  ejected  from  the  train.  Calhoun  v. 
Pullman  Co.  16:  575,  159  Fed.  387,  86  C.  0. 
A.  387. 

2.  Grounds  for. 

a.  In  general;  misbehavoir ;  disease. 

(See  also  Carriers,  II.  a,  5,  b  (1)  in  Digest 
L.R.A.  1-10.) 

See  also  infra,  644. 

Refusal    to    obey    rule. 

Necessity  of  specially  pleading  violation  of 
rule,  see  Pleading,  502. 

403.  A  passenger  may  be  ejected  for  re- 
fusing to  obey  a  rule  forbidding  the  turning 
of  seats  so  as  to  face  the  rear  of  the  car. 
Chesapeake  &  0.  R.  Co.  v.  Spiller,  50:  394, 
162  S.  W.  815,  157  Ky.  222. 
Drunkenness. 

See  also  supra,  40,  385;  infra,  469. 

404.  Train  men  have  the  right  to  remove 
from  the  train  a  person  who  has  boarded  it 
after  the  conductor  has  refused,  because 
of  his  intoxicated  condition,  to  receive  him 
as  a  passenger,  although  he  has  a  ticket 
entitling  him  to  transportation.  Chesapeake 
&  0.  R.  Co.  V.  Selsor,  33^165,  134  S.  W. 
143,  142  Ky.  163. 

Disease. 

405.  One  who,  suffer ing  from  cancer  and 
the  effects  of  a  recent  surgical  operation, 
so  that  he  will  need  medical  attention  dur- 
ing the  voyage,  purchases  a  steamship  tick- 
et, and  enters  the  vessel  without  notifying 
the  carrier  of  that  fact  and  arranging  for 
the  necessary  care,  cannot  complain  if  the 
carrier  refuses  to  accept  him,  and  puts  him 
ashore  before  the  vessel  begins  its  voyage. 
Connors  v.  Cunard  Steamship  Co.  26:  171, 
90  N.  E.  601,  204  Mass.  310. 

Order  of  board  of  health. 

406.  A  passenger  cannot  maintain  an  ac- 
tion against  a  railroad  company  on  the 
ground  that  he  was  wrongfully  expelled 
from  its  train,  which  he  left,  in  obedience 
to  the  order  of  a  quarantine  or  health  of- 
ficer, before  reaching  his  destination,  al- 
though the  conductor  pointed  him  out  to 
the  health  officer,  and  after  knowledge  of 
such  officer's  order  did  not  interfere  to  pre- 
vent its  execution.  Baldwin  v.  Seaboard 
Air  Line  R.  Co.  13:  360,  58  S.  E.  35,  128  Ga. 
567.  (Annotated) 


380 


CARRIERS,  II.  h,  2. 


b.  Nonpayment    of    fare,    or    defective 
ticket. 

(See  also  Carriers,  II.  a,  5,  b  (2)  in  Digest 
L.R.A.  1-lO.j 

Parol  evidence  to  show  passenger's  interpre- 
tation of  contract,  see  Evidence,  924. 

Right  of  ejected  passenger  to  testify  that 
he  was  joking  when  he  refused  to  pay 
fare,  see  Evidence,  1613. 

Pleading  in  action  for,  see  Pleading,  266. 

Necessity  of  pleading  refusal  to  pay  fare  as 
justification  for  arrest,  see  Pleading, 
486. 

Sufficiency  of  tender  by  passenger  of  fare, 
see  Tender,  9. 

Instructions  in  case  of,  see  Trial,  869. 

See  also  infra,  469. 

407.  A  purchaser  of  a  railroad  ticket 
which  on  its  face  is  good  over  one  of  two 
roads  may  hold  the  railroad  company  liable 
in  damages  in  ease  he  is  ejected  from  the 
train  to  which  he  is  directed  by  the  ticket 
agent,  if  he  himself  was  ignorant  as  to 
which  train  followed  the  route  called  for 
by  the  ticket,  although  the  conductor  did 
nothing  wrongful  in  ejecting  him  because 
his  ticket  was  not  good  on  the  train  taken. 
Mace  V.  Southern  R.  Co.  24:  1178,  66  S.  E. 
342,  151  N.  C.  404.  (Annotated) 

408.  The  conductor  of  a  train  must,  be- 
fore expelling  a  passenger  holding  a  ticket 
which  he  thinks  was  issued  in  violation 
of  the  rules  of  the  road,  heed  the  reason- 
able explanation  of  the  passenger  as  to 
how  he  obtained  possession  of  the  ticket. 
Smith  V.  Southern  R.  Co.  34:  708,  70  S.  E. 
1057,  88  S.  C.  421. 

409.  Where  a  passenger  presents  to  the 
conductor  a  ticket  issued  by  authority  of 
the  railroad  company,  claiming  a  right  to 
ride  thereon,  the  language  of  which  ticket 
is  ambiguous  and  of  doubtful  import,  it 
should  be  construed  most  strongly  against 
the  carrier  and  in  favor  of  the  purchaser. 
Ann  Arbor  R.  Co.  v.  Amos,  43:  587,  97  N. 
E.  978,  85  Ohio  St.  300. 

410.  Although  a  railroad  conductor  has 
power  to  expel  from  the  cars  persons  who 
refuse  to  jyay  fare,  if  he  expels  one  who  is 
entitled  to  the  rights  of  a  passenger  the 
company  is  liable  to  such  person  in  dam- 
ages, even  though  such  expulsion  is  done 
tlirough  an  error  of  judgment  on  the  part 
of  the  conductor  in  charge.  Cincinnati 
Northern  Traction  Co.  v.  Rosnagle,  35: 
1030,  95  N.  E.  884,  84  Ohio  St.  310. 

411.  A  passenger  who  is  expelled  from 
the  car  upon  his  tender  of  a  good  but  bat- 
tered coin  in  payment  of  fare  may  recover 
damages  from  the  company,  although  the 
conductor  acted  in  good  faith  in  the  be- 
lief that  the  coin  was  not  good.  Cincin- 
nati Northern  Traction  Co.  v.  Rosnagle, 
35:  1030,  95  N.  E.  884,  84  Ohio  St.  310. 

(Annotated) 

412.  A  street-car  passenger  who  attempts 
to  make  a  transfer  to  another  car  at  a  point 
other  than  that  stated  in  the  transfer  check, 
and  who,  upon  refusal  of  the  conductor  to 
Digest  1-52  L.R.A.(N.S.) 


accept  the  check  because  of  that  fact,  refuses 
to  pay  his  fare,  forfeits  his  right  to  remain 
upon  the  car,  even  tliough  he  is  then  past 
the  transfer  point  upon  the  route  covered 
by  the  transfer,  and  may  lawfully  be  eject- 
ed therefrom.  Shortsleeves  v.  Capital  Trac- 
tion Co.  8:  287,  28  App.  D.  C.  365. 

413.  A  street  car  company  may  refuse 
to  honor  a  transfer  tendered  by  a  passenger 
who  boarded  the  car  200  yards  from  the 
point  fixed  by  its  rules  for  transfer,  and 
eject  the  holder  upon  liis  refusal  to  pay 
a  cash  fare  upon  demand.  Taylor  v.  Spar- 
tanburg Railway,  C  &  E.  Co.  52:  908,  82 
S.  E.  404,  98  S.  C.  206.  (Annotated) 

414.  An  electric  railway  company  is  not 
guilty  of  wilful  disregard  of  duty  to  a  pas- 
senger, which  will  render  it  liable  to  him 
in  damages,  in  enforcing  a  rule  of  which 
he  had  no  notice,  that  it  would  not  change 
$5  bills  tendered  in  payment  of  5-cent  fares, 
and  compelling  him  to  leave  the  car  because 
of  nonpayment  of  fare.  Funderburg  v.  Au- 
gusta &  A.  R.  Co.  21:  868,  61  S.  E.  1075,  81 
S.   C.   141. 

415.  A  conductor  has  the  riglit  to  eject  a 
passenger  from  a  car  when  the  station  to 
which  his  ticket  reads  is  passed,  and  he  re- 
fuses to  pay  additional  fare,  notwithstand- 
ing his  contract  called  for  a  ticket  to  a 
more  distant  point,  and  the  ticket  held  by 
him  was  issued  by  mistake.  Virginia  &  S. 
W.  R.  Co.  v.  Hill,  6:  899,  54  S.  E.  872,  105 
Va.  729. 

416.  A  street  car  passenger  who  insists 
upon  remaining  on  a  car  which  turns  back 
before  his  destination  is  reached,  without 
paying  the  return  fare,  may  be  ejected  as 
a  trespasser,  although  he  was  not  warned, 
when  boarding  the  car,  that  it  would  not 
go  to  the  point  to  which  his  contract  en- 
titled him  to  be  carried.  Wright  v.  Orange 
&  P.  V.  R.  Co.  (N.  J.  Err.  &  App.)  23:  571, 
73  Atl.  517,  77  N.  J.  L.  774.       (Annotated) 

417.  A  passenger  on  a  street  car  who  is 
entitled  to  transfer  on  payment  of  fare 
cannot  make  the  simultaneous  issuance  of 
the  transfer  a  condition  of  paying  the  fare, 
and  in  case  he  attempts  to  do  so,  and  re- 
fuses to  pay  his  fare  without  receiving  his 
transfer,  he  may  be  ejected  from  the  car, 
although  experience  has  shown  that,  if  the 
transfer  is  not  issued  when  the  fare  is  paid, 
but  after  the  conductor  has  finished  collect- 
ing all  fares  in  the  car,  he  will  reach  his 
transfer  point  before  receiving  the  transfer. 
Louisville  R.  Co.  v.  Hutti,  33:  867,  133  S. 
W.  200,  141  Ky.  Sll. 

418.  A  passenger  who  accepts  from  a  car- 
rier's agent  a  ticket  for  interstate  pas- 
sage at  a  through  rate  which,  under  the 
rules  of  the  Commission,  does  not  allow 
stop-over  privileges,  cannot  hold  the  carrier 
liable  in  damages  for  his  expulsion  from 
the  train  in  case  he  attempts  to  exercise 
such  privileges,  although  the  marks  neces- 
sary to  show  the  limited  character  of  the 
ticket  are  not  placed  upon  it.  Melody  v. 
Great  Northern  R.  Co.  30:  568,  127  N.  W. 
543,  25   S.   D.  606. 

419.  A  carrier  is  liable  in  damages  for  the 
use  of  excessive  force  by  trainmen  in  eject- 


CARRIERS,  II.  h,  2. 


381 


ing  from  the  car  one  who  has  become  a 
trespasser  by  the  refusal  to  pay,  or  make  a 
proper  tender  of,  his  fare.  Louisville  &  N. 
R.  Co.  V.  Cottengim,  13:  624,  104  S.  W.  280, 
31  Ky.  L.  Rep.  871. 

420.  A  person  who  enters  a  passenger 
train  at  a  station,  without  ticket  or  money 
to  pay  fare,  for  the  jjurpose  of  collecting 
an  account  from  a  passenger  on  such  train, 
and  remains  on  the  train  after  it  leaves 
such  station,  is  not  a  passenger,  and  the 
company,  through  its  servants  and  em- 
ployees, may  eject  him  from  the  train  at 
a  proper  place  for  failure  to  produce  a 
ticket  or  to  pay  fare,  or  on  account  of 
boisterous  conduct,  and  the  company  is  not 
liable  for  injury  resulting  to  such  passen- 
ger when  only  such  force  is  used  as  is  rea- 
sonably necessary  to  eject  him  under  the 
circumstances.  Chicago,  R.  I.  &  P.  R.  Co. 
V.  Evans,  51:  608,  138  Pac.  804,  41  Okla.  411. 
Refusal  to  pay   fare   of   child. 

420a.  Where  a  person  purchases  a  ticket 
over  three  connecting  lines  of  railroad,  and 
an  agent  of  the  intermediate  line,  in  ex- 
changing the  ticket,  carelessly  and  negli- 
gently makes  an  error,  and,  without  the 
knowledge  of  the  passenger,  marks  the  des- 
tination of  such  passenger  on  the  ticket, 
given  in  exchange,  at  a  station  on  tRe  last 
of  the  connecting  roads  some  miles  short 
of  the  true  destination,  such  last  connecting 
carrier,  whose  conductor,  when  the  passen- 
ger insists  on  riding  to  her  destination, 
wires  the  general  passenger  agent  for  in- 
structions and  is  instructed  to  collect  the 
fare,  is  liable  for  ejecting  such  passenger, 
who  then  offers  to  pay  her  fare,  which  is 
refused  because  of  her  refusal  to  pay  full 
fare  for  a  child  with  her  for  whom  she 
holds  a  ticket  similar  to  her  own  except 
that  the  true  destination  is  marked  in  the 
contract  part  thereof.  Ann  Arbor  R.  Co. 
V.  Amos,  43:  587,  97  N.  E.  978,  85  Ohio  St. 
300. 

Mistake    in   transfer    slip. 
Sufficiency    of    pleading    in   action    for,    see 
Pleading,  176. 

421.  Tort  may  be  maintained  against  a 
street  car  company  for  the  negligence  of 
Its  conductor  in  preparing  a  transfer  so 
that  it  could  not  be  used  on  the  connecting 
car,  which  resulted  in  the  ejection  there- 
from of  the  holder.  Montgomery  Traction 
Co.  V.  Fitzpatrick,  9:  851,  43  So.  136,  149 
Ala.  511.  (Annotated) 

422.  A  street-car  passenger  who  is  given 
an  invalid  transfer  check  upon  paying  his 
fare  and  asking  for  a  transfer,  to  which  he 
is  entitled,  cannot,  upon  refusal  by  the  con- 
ductor of  the  connecting  car  to  honor  it,  re- 
fuse to  pay  his  fare,  thereby  rendering  nec- 
essary forcible  ejection,  and  hold  the  carrier 
liable  for  the  assault;  but  his  remedy  is 
confined  to  damages  for  the  breach  of  con- 
tract, including  reasonable  compensation  for 
the  indignity  put  vipon  him  through  the 
fault  of  the  company.  Little  Rock  R.  &  E. 
Co.  V.  Goerner,  7:  97,  95  S,  W.  1007,  80  Ark. 
158.  (Annotated) 
Expired   ticket. 

See  also  infra,  636. 

Digest   1-52  L.R.A.(N.S.) 


423.  The  owner  of  a  twenty-trip  railroad 
ticket,  who  without  the  knowledge  of  the 
company,  has  broken  the  agreement  under 
which  it  was  issued  by  letting  others  ride 
on  it,  cannot  recover  damages  for  being  put 
off  a  train  on  the  wrongful  ground  that  the 
ticket  has  expired.  Baltimore  &  O.  S.  W. 
R.  Co.  V.  Evans,  14:  368,  82  N.  E.  773,  169 
Ind.  410.  (Annotated) 

424.  The  expulsion  from  a  railway  train 
of  a  passenger  who  refuses  to  pay  to  the  con- 
ductor any  fare  other  than  the  tender  of  a 
limited  ticket  that  on  its  face  has  expired  is 
not  actionable,  although  the  passenger,  who 
has  paid  for  such  ticket  the  full  rate  for 
which  the  railway  company  should  have  giv- 
en him  an  unlimited  ticket,  communi- 
cates this  fact  to  the  conductor.  Shelton 
v.  Erie  R.  Co.  (N.  J.  Err.  &  App.)  9:  727, 
66  Atl.  403,  73  N.  J.  L.  558. 

425.  A  carrier  is  not  liable  in  tort  for  ex- 
pelling from  its  train  a  passenger  who  pre- 
sents for  passage,  after  the  day  of  its  issu- 
ance, a  ticket  limited  because  of  reduced 
fare,  to  such  date,  although  the  agent  who 
sells  it  assures  him  that  it  is  good,  when 
he  is  about  to  board  the  train.  Pennington 
V.  Illinois  C.  R.  Co.  37:  983,  97  N.  E.  289, 
252  111.  584. 

Refusal    to    pay    second    fare;    ticket 

Dvrongfully    taken    up. 
See  also  infra,  438. 

426.  A  passenger  whose  ticket  has  been 
taken  up  by  the  conductor  is  not  bound 
to  borrow  money  to  avoid  ejection  from  the 
train  when  fare  is  demanded  from  him  a 
second  time.  Light  v.  Detroit  &  M.  R.  Co. 
34:  282,    130    N.    W.    1124,    165   Mich.    433. 

(Annotated) 

427.  A  passenger  need  not  have  known  ot 
a  rule  of  a  street  car  company  requiring 
conductors  to  collect  fare  from  every  pas- 
senger before  boarding  the  car,  to  warrant 
its  enforcement  against  him,  in  case,  after 
paying  fare  on  the  motor  car,  he  passes  into 
the  trailer,  where,  before  his  ejection  from 
the  latter,  he  is  given  the  option  to  return 
to  the  former.  Birmingham,  R.  L.  &  P.  Co. 
V.  McDonough,  13:  445,  44  So.  960,  153  Ala. 
122. 

Defective    ticket. 

See  also  supra,  418,  420a;  infra,  446,  636. 

428.  Where  a  mistake  is  made  by  an  in- 
termediate carrier  in  exchanging  tickets 
good  over  connecting  lines,  for*  a  woman 
passenger  and  her  son,  and  an  erroneous 
destination  marked  in  the  coupons  and  con- 
tract part  of  one  ticket  and  the  correct 
destination  marked  in  the  contract  part  of 
the  other,  and  such  passenger  exhibits  both 
tickets  to  the  conductor,  who  wires  to  the 
general  passenger  agent  for  instructions, 
the  question  becomes  one  between  the  car- 
rier itself  and  the  passenger,  and  it  is  liable 
for  ejecting  such  passenger.  Ann  Arbor  R. 
Co.  V.  Amos,  43:  587,  97  N.  E.  978,  85  Ohio 
St.  300. 

429.  A  passenger  who  applies  for  trans- 
portation on  a  freight  train  has  a  right  to 
rely  on  the  evidence  furnished  him  as  his 
right  thereto,  and  may  recover  damages 
from  the  carrier  if  he  is  ejected  from  the 


,382 


CARRIERS,  II.  h,  2. 


train  because  of  a  mistake  in  such  evidence, 
without  fault  or  negligence  on  his  part. 
Olson  V.  Northern  P.*R.  Co.  i8:  209,  96  Pac. 
150,  49  Wash.  626. 

430.  One  holding  a  return  trip  railroad 
ticket  which  must  be  validated  at  the  in- 
termediate terminal  to  be  good  for  return, 
who  applies  to  the  proper  officer  for  valida- 
tion, and  is  referred  to  another  official  in 
another  city,  who  refuses  to  vali-date  the 
ticket  because  of  alleged  want  of  authority, 
informing  the  ticket  holder  that  the  ticket 
will  not  be  honored,  is  not  deprived  of  the 
right  to  hold  the  railroad  company  liable 
for  his  ejection  from  the  train  by  present- 
ing a  local  ticket  to  pass  the  gate  keeper, 
who  refuses  to  pass  him  on  his  invalidated 
ticket;  and  it  is  immaterial  that  the  gate- 
keeper's refusal  to  honor  the  ticket  was  a 
breach  of  the  carriage  contract  giving  a 
right  of  action.  Atehison,  T.  &  S.  F.  R. 
Co.  v.  Lucas,  39:  512,  144  S.  W.  1126,  105 
Tex.  82. 

431.  A  carrier,  by  issuing  and  honoring 
for  the  going  passenger  a  round-trip  ticket 
without  requiring  the  purchaser  to  sign  it, 
as  required  by  a  provision  printed  on  the 
face  thereof,  waives  such  requirement  so 
as  to  render  wrongful  the  ejection  of  the 
passenger  from  the  company's  train  for 
refusal  to  pay  his  return  fare,  after  refusal 
of  the  company's  servant  to  accept  the  un- 
used portion  of  the  tendered  unsigned 
ticket.  Chicago,  R.  I.  &  P.  R.  Co.  v.  New- 
burn,   30:  432,    110   Pac.    1065,   27    Okla.   9. 

( Annotated ) 

432.  Improper  mutilations  put  upon  a 
railroad  ticket  by  an  agent  of  the  carrier 
without  the  consent  of  the  rightful  owner 
constitutes  no  defense  to  the  carrier  for 
refusing  to  honor  it.  Forrester  v.  Southern 
P.  Co.  48:  I,  134  Pac.  753,  136  Pac.  705, 
36  Nev.  247. 

433.  Superfluous  limitation  marks  upon  a 
railroad  ticket  do  not  justify  its  confisca- 
tion by  the  train  agent  if  they  indicate  no 
limitation  time  which  had  expired  between 
the  date  of  its  issuance  and  the  time  of  its 
confiscation.  Forrester  v.  Southern  P.  Co. 
48:  I,  134  Pac.  753,  136  Pac.  705,  36  Nev. 
247. 

434.  The  holder  of  a  ferry  ticket  which 
bears  upon  its  face  the  marks  of  having 
been  canceled,  but  which  the  holder  claims 
was  not  used,  cannot  maintain  an  action  in 
damages  against  the  proprietor  of  the  ferry 
for  wrongful  ejection,  where  the  ticket  col- 
lector, acting  according  to  his  orders,  re- 
fuses to  accept  the  ticket  and  ejects  the 
holder  from  the  ferry.  Wilson  v.  West 
Jersey  &  S.  S.  R.  Co.  (N.  J.  Err.  &  App.) 
43:  1 148,  85  Atl.  347,  83  N.  J.  L.  755. 

435.  When  doubt  arises  as  to  a  special 
touring  railroad  ticket,  the  conductor  must 
listen  to  and  accept  any  reasonable  explana- 
tion ofi"ered  by  the  holder,  or  take  the 
chances  of  rendering  the  company  liable  for 
his  illegal  expulsion  from  the  train.  Illinois 
C.  R.  Co.  V.  Gortikov,  14:  464,  45  So.  363, 
90  Miss.  787. 

436.  A  carrier  is  not  justified  in  ejecting 
from  its  train  a  passenger  traveling  on  a 
Digest  1-52  I..R.A.(N.S.) 


I  limited  return  ticket,  who  was  properly  de- 
I  scribed  by  the  agent  who  issued  it,  and  who 
I  satisfactorily  identified  himself  to  tlie  agent 
at  the  intermediate  terminal,  because  the 
ticket  is  inadvertently  punched  as  having 
been  issued  to  a  female.  Illiiiois  C.  R.  Co. 
V.  Gortikov,  14:  464,  45  So.  363.  90  Miss. 
787. 

437.  Mere  failure  of  an  intending  passen- 
ger to  read  his  contract  before  entering  the 
train  is  not  conclusive  evidence  of  negli- 
gence on  his  part  in  failing  to  discover  a 
mistake  of  the  carrier's  agent  in  issuing  it. 
Olson  v.  Northern  P.  R.  Co.  18:  209,  96  Pac. 
150,  49  Wash.  626. 

438.  A  railroad  company  is  liable  for  put- 
ting a  passenger  off  the  train  because  he 
tenders  for  a  return  trip  the  wrong  part  of 
the  round-trip  ticket,  where  on  the  out- 
going trip  he  gave  the  whole  ticket  to  the 
conductor,  who  negligently  kept  the  wrong 
part.  Louisville  &  N.  R.  Co.  v.  Fish,  43: 
584,   127  S.  W.  519,  —  Ky.  — . 

439.  A  passenger  is  not  negligent  in  fail- 
ing to  observe  that  the  conductor  to  whom 
he  delivers  a  round-trip  ticket  retains  the 
wrong  coupon,  so  that  the  part  returned  to 
him  does  not  entitle  him  to  make  the  re- 
turn trip.  Louisville  &  N.  R.  Co.  v.  Fish, 
43:  584,  127  S.  W.  519,  —  Ky.  — . 

(Annotated) 

440.  A  passenger  who  has  purchased  a 
summer  tourist  ticket  which  calls  for  an 
exchange  by  an  intermediate  carrier  is  not 
guilty  of  negligence  in  failing  to  examine 
the  ticket,  after  the  exchange,  to  determine 
whether  or  not  it  is  correct.  Ann  Arbor 
R.  Co.  v.  Amos,  43:  587,  97  N.  E.  978,  85 
Ohio  St.  300. 

Effect   of   subsequent   offer   to   pay. 

441.  Tender  of  fare  on  behalf  of  a  pas- 
senger on  a  street  car  is  not  good  after  an 
attempt  has  been  begun  to  eject  him  from 
the  car.  Kirk  v.  Seattle  Electric  Co.  31: 
991,  108  Pac.  604,  58  Wash.  283. 

(Annotated) 

442.  That  the  ejection  of  a  passenger 
from  a  train  for  refusal  to  pay  fare  is  at  a 
regular  station  does  not  entitle  him  to  re- 
enter the  train  and  become  a  passenger 
upon  tender  of  the  full  fare  from  the  point 
where  he  first  entered  the  train  to  destina- 
tion. Phillips  v.  Atlantic  C.  L.  R.  Co.  38: 
1 151,  73  S.  E.  75,  9t)  S.  C.  187. 

443.  A  statute  requiring  railroad  ccftn- 
panies  to  stop  trains  at  regular  stations 
long  enough  to  receive  and  let  off  passen- 
gers does  not  entitle  a  passenger  ejected  at 
a  station  for  nonpayment  of  fare  to  re- 
enter the  car  upon  making  a  tender  of  the 
fare  due.  Phillips  v.  Atlantic  C.  L.  R.  Co. 
38:  1151,  73  S.  E.  75,  90  S.  C.  187. 

444.  One  who  has  become  a  trespasser 
upon  a  train  by  his  persistent  refusal  to  pay 
his  fare  unless  the  conductor  would  first 
give  him  the  change  representing  the  differ- 
ence between  an  amount  tendered  and  the 
correct  fare  cannot,  in  the  absence  of  an  ac- 
tual new  tender,  restore  his  rights  as  a  pas- 
senger by  a  mere  spoken  offer  to  pay  fare 
while  the  trainmen  are  ejecting  him.    Louis- 


CARRIERS,  II.  h,  3,  i. 


383 


villa  &  N.  R.  Co.  v.  Cottengim,  13:  624,  104 
S.  W.  280,  31  Ky.  L.  Rep.  871. 
Tender   of   fare   by   stranger. 

445.  One  who  repudiates  a  stranger's 
offer  to  pay  his  fare  to  avoid  his  ejection 
from  a  street  car  cannot  take  advantage 
of  the  tender  to  put  the  company  in  the 
wrong,  in  action  to  hold  it  liable  in  dam- 
ages for  ejecting  him.  Kirk  v.  Seattle 
Electric  Co.  31:  991,  108  Pac.  604,  58  Wash. 
283 

3.  At  what  place. 

(See  also  Carriers,  II.  a,  5,  c,  in  Digest 
L.R.A.  1-10.) 

See  also  supra,  392. 

446.  A  railroad  company  is  not  liable  for 
ejecting  from  its  train  a  woman  whose 
ticket  was  not  good  on  its  road,  and  who 
refused  to  pay  fare,  about  a  mile  from  the 
station  at  which  she  embarkei  in  a  city  in 
the  night,  where  she  made  no  request  to 
be  put  off  at  any  other  place,  except  to  be 
returned  to  the  embarking  point,  if  the 
place  of  ejection  is  as  convenient  to  her  as 
any  place  along  the  line,  unless  she  should 
be  returned  to  the  embarking  point  or  car- 
ried to  destination.  McKinley  v.  Louisville 
&  N.  R.  Co.  28:  611,  127  S.  W.  483,  137  Ky. 
845.  (Annotated) 

447.  One  who,  before  purchasing  a  tick- 
et, is  told  by  the  agent  that  a  specified 
train  stops  at  a  given  place  and  is  given  a 
time-table  showing  that  such  train  Is  sched- 
uled to  stop,  has,  by  the  contract,  a  right 
to  have  the  train  stop  f.t  such  place,  and  his 
ejection  at  tlie  last  preceding  station  is 
wrongful.  McDonald  v.  Central  R.  Co. 
(N.  J.  E-rr.  &  App.)  2:  505,  62  Atl.  405,  72 
N.  J.  L.  280.  (Annotated) 

i.  Leaving  at  destination;  stop-over. 

(See  also  Carriers,  II.  a,  6,  in  Digest  L.R.A. 

1-10.) 

Nature  of  action  for  failure  to  put  passen- 
ger off  at  proper  station,  see  Action  ob 
Suit,  73. 

Nominal  damages  for  carrying  passenger 
beyond  station,  see  Damages,  7. 

Punitive  damages  for  failure  to  stop  at  sta- 
tion, see  Damages,  92-97;  Trial,  108. 

Measure  of  damages  for  discharge  at  wrong 
stopping  place,  see  Damages,  254,  266. 

Measure  of  damages  for  carrying  passenger 
beyond  destination,  see  Damages,  266; 
Trial,  600. 

Carrying  passenger  beyond  station  as  proxi- 
mate cause  of  illness,  see  Proximate 
Cause,  83. 

Power  of  court  to  reduce  amount  of  general 
verdict,  see  Trial,  1165. 

See  also  supra,  447;  infra,  570,  571. 

448.  In  the  running  of  trains,  it  is  the 
duty  of  a  carrier  of  passengers  to  discharge 
passengers  aboard  the  train  at  the  regular- 
ly appointed  place  or  station,  and  for  a 
Digest   1-52   L.R.A.(N.S.) 


failure  or  neglect  to  do  so,  it  is  liable  to 
the    party    aggrieved   for    all    damages    sus- 
tained.    Ft.   Smith   &   VV.   R.   Co.   v.   Ford, 
41:  745,  126  Pac.  745,  34  Okla.  575. 
Flag    station. 
Punitive  damages  for  refusal  to  stop  train 

at  flag  station,  see  Damages,  96. 
See  also  supra,   30. 

449.  Where  the  point  of  destination  of  a 
passenger  on  a  railroad  train  is  a  flag 
station,  to  which  the  carrier  sold  him  a 
ticket,  and  his  presence  on  the  train  is 
known  to  the  conductor,  the  carrier  is 
charged  by  law  with  the  duty  of  stopping 
the  train  at  such  station  and  affording  a 
reasonable  opportunity  to  the  passenger  to 
get  off;  and  a  failure  to  perform  such  duty 
is  not  only  a  breach  of  contract,  but  a 
tort,  for  which  an  action  is  maintainable. 
Ft.  Smith  &  W.  R.  Co.  v.  Ford,  41 :  745,  126 
Pac.  745,  34  Okla.  575. 

450.  The  mere  purchase  of  a  ticket  for  a 
flag  station  is  not  notice  to  the  railroad 
company  that  a  particular  train  must  be 
stopped  there.  Rock  Island,  A.  &  *L.  R.  Co. 
V.  Stevens,  16:  1132,  105  S.  W.  1032,  94 
Ark.  436. 

451.  A  passenger  desiring  to  leave  the 
train  at  a  flag  station,  where  the  train 
stops  only  on  notice,  must  notify  some  em- 
ployee of  the  train  of  such  desire,  and,  in 
case  the  train  is  crowded,  so  that  it  becomes 
evident  that  the  employee  will  not  reach 
him  in  the  regular  discharge  of  his  duties 
before  the  station  is  reached,  he  must  seek 
him.  Rock  Island,  A.  &  L.  R.  Co.  v.  Stevens, 
16:  1132,  105  S.  W.  1032,  84  Ark.  436. 

(Annotated) 

452.  A  railroad  eompany  selling  a  ticket 
for  a  particular  train  to  a  flag  station  is 
bound  to  take  notice  of  the  passenger's  de- 
sire to  stop  there,  and  is  liable  for  carrying 
him  past,  although  the  conductor  has  not 
time  to  reach  him  before  the  train  reaches 
the  station,  in  the  absence  of  a  rule  known 
to  the  passenger  requiring  him  to  notify 
the  conductor  of  his  intended  destination. 
Louisville  &  N.  R.  Co.  v.  Fuqua,  52:  668, 
65  So.  396,  —  Ala.  — .  (Annotated) 
Duty  to  notify  sleeping  passengers  of 

arrival  at  destination. 
Punitive  damages  for  failure  to  notify  pas- 
senger   of    arrival    at    destination,    see 
Damages^  73. 

453.  It  is  the  duty  of  a  sleeping  car  com- 
pany, although  it  is  not  a  common  carrier, 
to  notify  a  passenger  of  her  arrival  at  her 
destination.  Pullman  Co.  v.  Lutz,  14:  907, 
45  So.  675,  154  Ala.  517.  (Annotated) 

454.  A  railroad  company  is  liable  for  the 
act  of  a  porter  of  a  Pullman  car  in  putting 
off  a  passenger  at  the  wrong  station,  where 
it  relies  upon  him  to  notify  sleeping  pas- 
sengers of  the  approach  of  the  train  to  their 
stations.  Campbell  v.  Seaboard  A.  L.  R.  Co. 
23:  1056,  65  S.  E.  628,  83  S.  C.  448. 

(Annotated) 

Passenger  on  street  car. 

Presumption  and  burden  of  proof,  see  Evi- 
dence, 368,  369. 

Proximate  cause  of  injury,  see  Proximate 
Cause,  93. 


384 


CARRIERS,  II.  j.  1. 


455.  The  alighting,  by  a  passenger,  from  a 
street  car  which  has  run  past  the  original 
stopping  place,  cannot  be  said  to  be  volun- 
tary, where  he  did  not  know  that  fact  when 
he  alighted,  although,  after  he  was  on  the 
ground,  the  conductor  offered  to  carry  him 
on  to  the  next  stop,  which  would  have  been 
as  convenient  for  his  purpose  as  was  the 
stopping  place  passed.  Melton  v.  Birming- 
ham R.  L.  &  P.  Co.  i6:  467,  45  So.  151,  153 
Ala.  95. 

456.  It  is  negligence  for  a  street  car  com- 
pany, after  a  passenger  has  signaled  to  be 
put  off  at  a  certain  crossing  on  a  dark 
night,  to  run  past  the  stopping  place  and 
put  the  passenger  off  at  a  place  where  the 
roadbed  is  ballasted  with  slag,  and  is  very 
rough.  Melton  v.  Birmingham  R.  L.  &  P. 
Co.  16:  467,  45  So.  151,  153  Ala.  95. 

(Annotated; 

457.  A  street-car  <3ompany  wliich  carries 
a  passenger  beyond  his  announced  destina- 
tion, in  a  strange  place,  on  a  dark  night, 
and  refuses  to  carry  him  back,  but  compels 
him  to  leave  the  car,  takes  the  risk  of  his 
injury  in  attempting  to  follow  the  direc- 
tions of  the  conductor  to  walk  back  along 
the  track,  which  course  will  take  him  past 
obstructions  from  which  injury  may  result 
to  him.  Kentucky  &  I.  Bridge  &  R.  Co. 
V.  Buckler,  8:  555,  100  S.  W.  328,  125  Ky. 
24. 

Stop  over. 

Injunction  against  actions  under  statute  as 
to,  see  Injunction,  251. 

458.  The  penalty  provided  by  a  statute 
for  refusal  by  a  railroad  company  to  fur- 
nish persons  desiring  passage  on  its  cars 
tickets  with  stop-over  privilege  cannot  be 
enforced  by  persons  who  do  not  desire  to 
become  passengers  with  such  privilege,  but 
who  wish  to  receive  a  refusal  of  the  privi- 
lege for  the  purpose  of  enforcing  the  pen- 
alty. Southern  P.  Co.  v.  Robinson,  12:  497, 
64  Pac.  572,  132  Cal.  408.  (Annotated) 

458a.  One  who  purchases  a  continuous 
trip  ticket  is  not  entitled  to  stop  over,  and 
is  subject  to  forfeiture  of  his  ticket  in 
case  he  attempts  it,  although  it  is  ex- 
changed for  a  conductor's  check  which 
states  that  it  must  be  used  to  destination 
before  midnight  on  the  date  punched,  which 
is  interpreted  by  conductors  and  station 
agent  to  mean  that  he  may  stop  over  if  he 
uses  the  ticket  within  the  time  limited, 
and  he  acts  upon  their  advice.  Sanden 
v.  Northern  P.  R.  Co.  34:  711,  115  Pac.  408, 
43  Mont.  209.  (Annotated) 

j.  Disabled  or  incompetent  passengers. 

1.  Duty  or  negligence  of  carrier. 

a.  In  general. 

(See  also  Carriers,  II.  a,  7,  a  (1)  in  Digest 
L.R.A.  1-70.J 

Proximate  cause  of  injury  to,   see  Proxi- 
mate Cause,  94. 
See  also  supra,  392,  396. 
Digest  1-52  Ii.R.A.(N.S.) 


Blind   passenger. 

459.  A  railroad  company  which  accepts  a 
blind  person  without  an  attendant  as  a  pas- 
senger must  use,  at  least,  reasonable  care 
and  diligence  for  his  safety.  Denver  &  R. 
G.  R.  Co.  v.  Berry,  27:  761,  108  Pac.  172, 
47  Colo.  584. 

460.  The  porter  of  a  railroad  company 
who,  upon  being  asked  by  a  blind  passenger 
for  assistance  into  the  car,  places  him  upon 
the  step,  is  negligent  in  permitting  him  to 
advance  without  further  attention  on  his 
part,  and  turn  in  the  wrong  direction  at 
the  top  of  the  steps,  so  that  he  walks  off  of 
the  car  instead  of  into  it.  Denver  &  R.  G. 
R.  Co.  V.  Berry,  27:  761,  108  Pac.  172,  47 
Colo.  584. 

460a.  While  generally  it  is  no  part  of  the 
duty  of  the  employees  of  a  railway  com- 
pany in  charge  of  a  passenger  train  physic- 
ally to  assist  passengers  to  alight  there- 
from, the  duty  of  rendering  assistance  may 
arise  from  special  circumstances,  such  as 
blindness  of  an  unattended  passenger,  which 
is  known  to  the  conductor.  Georgia  R.  & 
Bkg.  Co.  V.  Rives,  38:  564,  73  S.  E.  645,  137 
Ga.  376.  (Annotated) 

460b.  A  railroad  company  is  liable  for  in- 
jury to  a  blind  passenger  whom  the  con- 
ductor refuses  to  assist  from  the  train, 
where,  under  the  conductor's  directions  and 
the  guidance  of  a  stranger,  he  attempts  to 
pass  through  the  side  door  of  the  baggage 
car  to  an  adjoining  platform,  and  because 
of  the  slippery  condition  of  the  platform 
and  the  open  space  between  it  and  the  car 
door,  he  falls  into  the  space  to  his  injury. 
Georgia  R.  &  Bkg.  Co.  v.  Rives,  38:  564,  73 
S.  E.  645,  137  Ga.  376. 
Sick  passenger. 
Ejection  of  sick  passenger,  see  supra,  392, 

405. 
Recovery  for  mental  anguish  of  passenger 

caused   by   carrier's   negligence   toward 

other  person,  see  Damages,  663. 
Evidence    to    show    knowledge    of    physical 

condition   of   passenger,   see   Evidence, 

1583. 
Negligence  of  carrier  as  question  for  jury, 

see  Trial,  378. 
Instructions  in  action  for  failure  in  duty 

to,  see  Trial,  905,  1052. 
See  also  infra,  517. 

461.  If  a  passenger  on  a  railway  train 
becomes  ill  in  transit,  and  this  is  known 
to  the  servants  of  the  carrier  in  charge  of 
such  train,  or  is  so  apparent  that  they  are 
charged  with  knowledge  of  it,  it  is  their 
duty  to  give  him  such  care  and  protection 
beyond  that  demanded  under  ordinary  cir- 
cumstances as  is  reasonably  practicable 
with  the  facilities  at  hand,  and  consistent 
with  the  safe  and  proper  conduct  of  the 
business  and  the  safety  and  comfort  of  the 
other  passengers.  Central  of  Georgia  R. 
Co.  V.  Madden,  31:  813,  69  S.  E.  165,  135 
Ga.    205.  (Annotated) 

462.  A  carrier  which  accepts  an  unat- 
tended invalid  as  a  passenger,  and  attempts 
to  render  her  assistance  in  boarding  the 
train,  is  liable  for  injuries  inflicted  on  her 
by  its  negligence  in  so  doing.     Williams  v. 


CARRIERS,  II.  J,  1— k,  1. 


386 


Louisville  &  N.  R.  Co.   lo:  413,  43  So.  576, 
150  Ala.  324. 
Intoxicated    passenger. 

Proximate  cause  of  injury,  see  Peoximate 

Cause,  89. 
See  also  supra,  236. 

463.  Mere  knowledge  on  the  part  of  those 
in  charge  of  a  passenger  train  tliat  a  pas- 
senger has  been  drinking,  and  is  to  some 
extent  intoxicated,  does  not  require  them 
to  use  greater  care  for  his  safety  than 
they  owe  to  other  passengers,  where  he  is 
apparently  able  to  care  for  himself;  and 
therefore  the  railroad  company  cannot  be 
held  liable  for  his  death  because,  when  the 
train  unexpectedly  stopped  on  a  trestle, 
and  passengers  coming  to  the  exit  under 
the  belief  that  the  train  had  readied  the 
station  were  warned  that  it  had  not  done 
so,  they  left  him  standing  on  the  plat- 
form, from  which  he  fell  to  his  death. 
Louisville,  H.  &  St.  L.  R.  Co.  v.  Gregory, 
35:  317,  133  S.  W.  805,  141  Ky.  747,  136  S. 
W.  154,  143  Ky.  300. 

464.  Trainmen  who  attempt  to  assist  an 
intoxicated  passenger  from  the  train  are 
bound  to  use  ordinary  care  to  leave  him 
where  he  will  be  reasonably  safe  in  view  of 
his  condition.  Black  v.  New  York,  N.  H. 
&  H.  R.  Co.  7:  148,  79  N.  E.  797,  193  Mass. 
448. 

465.  A  railroad  company  is  not  liable  for 
the  death  of  a  passenger  who,  although 
under  the  influence  of  liquor,  was  not  so 
intoxicated  that  it  would  have  been  justi- 
fied in  refusing  to  accept  him  as  a  passen- 
ger, merely  because,  after  placing  him  in  a 
place  of  safety  at  a  junction  where  a  change 
of  cars  was  necessary,  it  failed  to  main- 
tain a  guard  over  him,  so  that  he  wandered 
onto  the  track  and  was  killed  by  the  in- 
coming train.  Thixton  v.  Illinois  C.  R. 
Co.  8:  298,  96  S.  W.  548,  29  Ky.  L.  Rep.  910. 

(Annotated) 

466.  A  railroad  company  is  not  negligent 
in  failing  to  back  an  excursion  train  from 
which  an  intoxicated  passenger  has  fallen, 
to  pick  him  up,  where  his  absence  is  not  dis- 
covered until  the  train  has  proceeded 
several  miles  and  the  attempt  to  go  back 
would  be  dangerous  to  the  passengers  on 
board.  Yazoo  &  M.  V.  R.  Co.  v.  Smith,  49: 
917,  64  So.  158,  —  Miss.  — . 

467.  No  liability  attaches  to  a  railroad 
company  for  turning  an  intoxicated  tres- 
passer out  of  its  station  on  an  extremely 
cold  night,  if  its  agent  offered  him  shelter 
which,  with  an  understanding  of  the  offer, 
he  declined.  Adams  v.  Chicago  G.  W.  R. 
Co.  42:  373,  135  N.  W.  21,  156  Iowa,  31. 

(Annotated) 

468.  A  railroad  company  which  compels 
a  trespasser  whom  it  knows  to  be  intox- 
icated to  such  an  extent  that  he  cannot 
care  for  himself,  to  leave  its  depot  building 
on  an  extremely  cold  night,  without 
thought  as  to  where  he  will  find  shelter, 
fails  to  exercise  ordinary  prudence,  and 
will  be  liable  for  injury  inflicted  upon 
him  by  the  cold.  Adams  v.  Chicago  G.  W. 
R.  Co.  42:  373,  135  N.  W.  21,  156  Iowa,  31. 

469.  A  railroad  company  cannot,  in  the 
absence  of  wilfulness  or  wantonness,  be 
Digest  1-52  L.R.A.(N.S.)  25 


heid  liable  for  ejecting  from  its  train  at  a 
station  a  passenger  intoxicated,  but  not 
helpless,  who  refuses  to  pay  fare,  where 
the  statute  expressly  authorizes  it  to  do 
so.  'Adams  v.  Chicago  G.  W.  R.  Co.  42: 
373,  135  N.  W.  21,  156  Iowa,  31. 

b.  Duty  to  receive. 

(See  also  Carriers,  II.  a,  1,  a  (2)  in  Digest 
L.  R.  A.  1-10.) 

See  also  supra,  46. 

470.  A  common  carrier  is  bound  to  accept 
as  a  passenger  one  who  is  ill,  provided 
it  can  furnish  the  necessary  accommoda- 
tions, and  the  passenger  is  willing  to  pay 
for  what  he  demands.  Connors  v.  Cunard 
Steamship  Co.  26:  171,  90  N.  E.  601,  204 
Mass.    310.  (Annotated) 

471.  An  ocean  passenger  carrier  has  a 
right  to  refuse  to  receive  as  an  ordinary  pas- 
senger a  person  in  need  of  medical  attention 
during  the  voyage.  Connors  v.  Cunard 
Steamship  Co.  26:  171,  90  N.  E.  601,  204 
Mass.  310. 

472.  Neither  a  statute  requiring  passen- 
ger vessels  to  carry  a  duly  qualified  medical 
practitioner,  nor  the  presence  of  such  per- 
son on  the  vessel,  changes  the  carrier's  right 
to  refuse  to  receive  as  an  ordinary  passenger 
a  person  in  need  of  medical  attention  during 
the  voyage.  Connors  v.  Cunard  Steamship 
Co.  26:  171,  90  N.  E.  601,  204  Mass.  310. 

473.  The  conductor  of  a  passenger  train 
may  refuse  to  receive  as  a  passenger  a  per- 
son so  far  intoxicated  as  to  affect  his  con- 
duct. Chesapeake  &  O.  R.  Co.  v.  Selsor, 
33:  165,  134  S.  W.  143,  142  Ky.  163. 
Person   having   contagions   disease. 

474.  A  sleeping  car  company  may  refuse 
to  admit  to  its  car  a  person  having  a  con- 
tagious disease,  although  he  has  purchased 
a  ticket  for  passage  thereon.  Pullman  Co. 
V.  Krauss,  4:  103,  4"0  So.  398,  145  Ala.  395. 

(Annotated) 

2.  Contributory  negligence. 

(See   also    Carriers,   II.   a,   7,   b,   in   Digest 
L.  R.  A.  1-10.) 

As  question  for  jury,  see  Trial,  392,  393. 
See  also  infra,  550,  575. 

475.  A  blind  person  who  has  a.sked  the 
porter  of  a  car  to  assist  him  to  enter  it  is 
not  negligent,  after  the  porter  has  put  him 
upon  the  first  step,  in  advancing,  under  the 
belief  that  the  porter  would  watch  him  to 
see  if  he  made  the  right  turn  to  enter  the 
car.  Denver  &  R.  G.  R.  Co.  v.  Berry,  27: 
761,  108  Pac.  172,  47  Colo.  584. 

fc.  Getting  on  or  off. 

1.  Duty  or  negligence  of  carrier. 

(See  also   Carriers,  II.   o,   8,   a,   in  Diges 
L.  R.  A.  1-70.) 

Defense  in  action  for  injury  while  alight- 
ing from  car,  see  Ac5TI0N  ob  Suit,  40. 


386 


CARRIERS,  II.  k,  1. 


Reversible  error  as  to  instruction  in  action 
for  injury,  see  Appeal  and  Error, 
1413. 

Eight  of  carrier  held  liable  for  death  of 
passenger  boarding  train  to  recover 
from  third  party  primarily  responsible 
therefor,  see  Contribution  and  Indem- 
nity, 17. 

Measure  of  damages  for  injury,  see  Dam- 
ages, 256. 

Presumption  of  negligence  of  carrier,  see 
Evidence,  365-369. 

Amendment  of  declaration  as  affecting  limi- 
tation of  action,  see  Limitation  of 
Actions,  300. 

Pleading  as  to,  see  Pleading,  292. 

Proximate  cause  of  injury,  see  Proximate 
Cause,  87,  88,  90. 

Question  for  jurv  as  to,  see  Trial,  367. 

See  also  supra,  121,  233,  234,  243,  256,  283, 
299-302. 

476.  One  who  induces  a  conductor  to  per- 
mit him  to  ride  for  less  than  the  regular 
fare  cannot  hold  '  he  railroad  company  lia- 
able  for  the  act  of  the  conductor  on  compel- 
ling him  to  leave  the  train  in  a  reckless  and 
negligent  manner.  Grahn  v.  International 
&  G.  N.  R.  Co.  5:  1025,  93  S.  W.  104,  100 
Tex.  27.  (Annotated) 

477.  A  street  car  company  may  be  held 
responsible  for  negligence  in  stopping  its 
car  and  inviting  passengers  to  enter  it  at  a 
place  made  dangerous  by  temporary  repairs 
upon  the  street,  although  the  work  is  being 
done  by  the  city,  and  the  company  has  no 
control  over  it.  Haas  v.  Wichita  R.  & 
Light  Co.  48:  974,  132  Pac.  195,  89  Kan. 
613.  (Annotated) 

478.  A  street  car  company  may  be  held 
liable  for  injuries  to  a  passenger  resulting 
while  attempting  to  enter  the  car  at  a  place 
made  dangerous  by  temporary  repairs  upon 
the  street,  over  which  the  street  car  com- 
pany had  no  control,  if  proper  care  re- 
quired the  company  to  stop  its  car  to 
receive  and  discharge  passengers  at  a  con- 
venient point  outside  the  limits  of  danger, 
or  to  provide  a  step  to  furnish  assistance, 
or  otherwise  provide  for  the  safety  of  pas- 
sengers. Haas  V.  Wichita  R.  &  Light  Co. 
48:  974,  132  Pac.   195,  89  Kan.  613. 

479.  A  street  car  company  does  not  free 
itself  from  liability  for  injury  to  a  pas- 
senger who  becomes  entangled,  to  his  in- 
jury, in  the  trolley  rope,  one  end  of  which 
was  lying  on  the  floor  when  he  attempted 
to  alight  from  th^  car,  by  showing  that  the 
rope  was  fastened  in  the  proper  place  when 
the  conductor  last  changed  the  trolley  at 
the  end  of  the  route.  Denver  City  Tram- 
wav  Co.  V.  Hills,  36:  213,  116  Pac.  125,  50 
Colo.  328. 

480.  The  fact  that  an  electric  street  car 
will  start  with  more  or  less  of  a  jerk  is 
one  of  the  risks  assumed  by  passengers,  so 
that  the  mere  fact  that  a  car  starts  with 
a  sudden  movement  or  jerk,  and  that  a  pas- 
senger is  thrown  to  the  floor  and  hurt,  do 
not  make  out  a  case  of  negligence  which 
will  render  the  company  liable  for  the  in- 
jury; but  to  render  it  liable  the  stait  must 
Digest   1--52  I<.R.A.(N.S.)       .     ... 


be  shown  to  have  been  unusually  sudden 
and  violent.  Boston  Elev.  R.  Co.  v.  Smith, 
23:  890,  168  Fed.  628,  94  C.  C.  A.  84. 

(Annotated) 

481.  A  street  car  company  is  not  bound 
to  anticijjate  that  passengers  will  leave  their 
seats  and  approach  the  exit  when  the  car 
slackens  speed  upon  approaching  their  stat- 
ed destination,  and  operate  the  car  with  a 
view  to  their  safety,  so  as  to  render  it  neg- 
ligent, in  the  absence  of  actual  notice  of 
peril,  in  making  sudden  changes  in  the  speed 
of  the  car,  which  would  have  been  proper 
had  the  passengers  remained  in  their  seats. 
Scliultz  v.  Michigan  United  R.  Co.  27:  503, 
123  N.  W.  594,  158  Mich.  665. 

482.  A  carrier  is  not  negligent  in  failing 
to  warn  a  passenger  who  has  gone  upon 
tiie  platform  that  the  train  is  still  in  mo- 
tion, and  that  it  is  dangerous  to  attempt 
to  alight  therefrom.  Morris  v.  Illinois  C. 
R.  Co.  31:  629,  53  So.  698,  127  La.  445. 

483.  A  carrier  is  not  bound  to  prevent 
a  normal  passenger  from  attempting  to 
jump  from  a  moving  train  as  it  approaches 
his  station.  Morris  v.  Illinois  C.  R.  Co. 
31:629,  53   So.   698,  127  La.  445. 

484.  A  railroad  company  may  be  held 
liable  for  the  death  of  a  passenger  where, 
being  on  a  night  train  in  which,  according 
to  custom,  the  lights  are  turned  down  and 
pillows  furnished  for  passengers  desiring  to 
sleep,  he  was  not  awakened  until  the  train 
was  leaving  his  station,  and  then  in  a  dazed 
condition  was  assisted  by  the  porter  to  the 
platform,  with  the  knowledge  of  the  con- 
ductor, and  permitted  to  attempt  to  step 
off  the  moving  train  in  the  dark,  which 
resulted  in  his  death.  Hanson  v.  Chicago, 
R.  I.  &  P.  R.  Co.  31:  624,  112  Pac.  152,  83 
Kan.  553.  (Annotated) 

485.  A  railroad  company  which,  with 
knowledge  that  a  passenger  has  alighted 
from  the  train  for  exercise  at  the  station, 
starts  the  train  without  reasonable  warning 
and  opportunity  for  him  safely  to  re-enter 
the  train,  is  liable  for  injuries  inflicted  upon 
him  in  consequence  of  such  act.  Gannon  v. 
Chicaso,  R.  I.  &  P.  R.  Co.  23:  1061,  117  N. 
W.  966,  141  Iowa,  37. 

486.  Where  a  train  is  stopped  at  a  sta- 
tion a  reasonable  time  to  permit  passengers 
to  alight,  those  in  charge  of  it  may  assume 
that  they  have  done  so,  and  are  not  guilty 
of  negligence  in  starting  the  train  without 
ascertaining  whether  or  not  they  have  in 
fact  alighted,  unless  the  circumstances  in- 
dicate, or  cause  them  to  suspect,  in  the  exer- 
cise of  reasonable  diligence,  that  someone 
had  not  reached  a  place  of  safety;  so  as  to 
be  in  danger  if  the  train  is  started.  Chi- 
cago, B.  &  Q.  R.  Co.  V.  Lampman,  25:  217, 
104  Pac.  533,  18  Wyo.  106.  (Annotated) 

487.  A  street  car  company  which  has  re- 
duced the  speed  of  fe  car  at  a  regular  stop- 
ping place,  with  the  apparent  intent  to 
receive  passengers,  cannot  avoid  liability 
for  injury  to  one  who  attempts  to  board 
the  car,  because  it  did  not  know  that  he 
intended  to  do  so.  Klinck  v.  Chicago  City 
R.  Co.  52:  70,  104  N.  E.  669,  262  111.^280. 


CARRIERS,  II.  k,  1. 


387 


Disobedience   of  rule. 

488.  Failure  of  train  hands  to  obey  a 
rule  requiring  tliem  to  look  through  the  cars 
to  see  that  all  movement  of  passengers  has 
ceased  before  starting  the  train,  is  not  neg- 
ligence if  the  train  is  stopped  a  suflficient 
time  for  passengers,  in  the  exercise  of  rea- 
sonable care,  to  alight  in  safety,  unless 
there  is  something  in  the  circumstances 
known  to  those  in  charge  of  the  train  to 
indicate,  or  which  would  cause  them,  by  the 
exercise  of  reasonable  diligence,  to  surmise 
that  someone  would  be  injured  by  start- 
ing it.  Chicago,  B.  &  Q.  R.  Co.  v.  Lamp- 
man,  25:  217,  104  Pac.  533,  18  Wyo.  106. 
Duty  to   cliildren. 

See  also  Negligence,  135. 

489.  The  failure  of  a  street  car  conductor 
to  exercise  the  highest  degree  of  care  pos- 
sible to  prevent  a  girl  thirteen  years  of  age 
and  unaccustomed  to  riding  upon  the  cars, 
from  alighting  from  the  moving  car  while 
frightened  and  frenzied  by  reason  of  having 
been  carried  past  her  announced  destination, 
will  render  the  company  liable  in  damages 
for  the  injuries  sustained  by  her.  Kruger 
v.  Omaha  &  C.  B.  Street  R.  Co.  17:  loi,  114 
N.  W.  571,  80  Neb.  490.  (Annotated) 

490.  The  mere  fact  that  a  thirteen-year- 
old  boy  who  is  accustomed  to  riding  be- 
tween his  home  and  s,cliool  on  a  railroad 
train  knows  that  there  is  possibility  of  in- 
jury is  jumping  from  the  train  while  it  is 
moving  does  not  relieve  the  carrier  from  lia- 
bility for  his  injury  in  attempting  to  jump 
when  the  train  is  passing  the  school,  if, 
to  tlie  knowledge  of  the  carrier,  boys  had 
been  in  the  habit  of  doing  so  without  any 
attempt  on  its  part  to  prevent  it.  Kambour 
V.  Boston  &  M.  R.  Co.  45:  1188,  86  Atl.  624, 

—  N.  H.  —  . 

491.  A  railroad  company  having  knowl- 
edge that  boys  riding  to  school  on  its  trains 
are  in  the  habit  of  jumping  from  the  train 
while  it  is  passing  the  schoolhouse,  to  avoid 
walking  back  from  the  station,  is  bound  to 
take  active  measures  to  prevent  their  doing 
so.  Kambour  v.  Boston  &  M.  R.  Co.  45: 
1188,  86  Atl.  624,  —  N.  H.  — . 

492.  A  railroad  company,  whose  duty  is 
to  restrain  a  boy  from  leaving  a  moving 
train,  is  liable  for  injury  to  him  in  so  leav- 
ing, if,  because  of  his  youth  and  inexperience 
he  was  not  negligent  in  so  doing,  notwith- 
standing he  knew  that  there  was  a  possi- 
bility of  his  being  injured,  and  voluntarily 
assumed  the  risk  of  such  injury.  Kambour 
V.  Boston  &  M.  R.  Co.  45:  1188,  86  Atl.  624, 

—  N.  H.  — . 

493.  A  conductor  in  charge  of  an  open 
street  car  is  not  guilty  of  wilful  and  wanton 
conduct  which  will  render  the  company  lia- 
ble therefor,  who,  upon  seeing  a  newsboy  on 
the  running  board  of  the  car  next  the  par- 
allel track,  and  outside  the  protecting  bar, 
gets  opposite  him  on  the  other  side  of  the 
car  and  waves  his  hand  at  him,  commands 
him  to  get  off  the  cars,  and  steps  between 
the  seats  as  though  to  reach  him,  in  conse- 
quence of  which  the  boy  jumps  off  when  the 
car  is  going  7  or  8  miles  an  hour,  to  his  in- 
Digest  1-52  Ii.R.A.(N.S.) 


jury.     Lebov  v.  Consolidated  R.  Co.  26:  265, 
89  N.  E.  546,  203  i\Iass.  380.      (Annotated) 

494.  A  railroad  company  is  not  required 
to  maintain  in  populous  communities  a  look- 
out for  children  who  are  in  the  habit  of 
jflinping  on  and  off  its  cars  while  in  mo- 
tion, and  provide  against  injuries  to  them. 
Swartwood  v.  Louisville  &  N.  R.  Co.  19: 
1 1 12,  111  S.  W.  305,  129  Ky.  247. 
Trespasser   or   licensee. 

See  also  supra,  493. 

495.  The  conductor  is  not  negligent  in 
failing  to  prevent  a  trespasser  frOm  at- 
tempting to  alight  from  a  train  going  only 
2  miles  an  hour.  McElvane  v.  Central 
of  Georgia  R.  Co.  34:  715,  54  So.  489,  170 
Ala.   525. 

496.  A  carrier  owes  no  duty  to  one  who 
accompanies  a  passenger  onto  a  train  mere- 
ly to  visit,  except  to  refrain  from  wilfully 
or  wantonly  injuring  him.  Whaley  v.  Louis- 
ville &  N.  R.  Co.  52:  179,  65  So.  140,  18S 
Ala.  72,  (Annotated) 

497.  Wilful  or  wanton  injury  to  one  at- 
tempting to  leave  a  train  which  has  begun 
to  move  after  he  has  entered  it  to  visit 
with  a  passenger  is  not  shown  by  evidence 
that  a  trainman  saw  the  attempt,  if  there 
was  nothing  to  suggest  danger  of  injury,  or 
to  show  opportunity  to  stop  the  train  in 
order  to  avoid  it,  Whaley  v.  Louisville  & 
N.  R.  Co.  52:  179,  65  So.  140,  186  Ala.  72. 

498.  A  railroad  company  owes  no  duty  not 
to  start  its  cars  with  a  jerk,  to  one  who,  in 
accordance  with  a  practice  carried  on  with- 
out its  objection,  has  entered  a  car  to  pur- 
chase fruit  of  one  not  in  the  employ  of  the 
railroad  company;  nor  is  it  bound,  in  the 
absence  of  knowledge  of  his  presence,  to 
give  a  signal  that  the  train  is  about  to 
start.  Peterson  v.  South  &  W.  R,  Co.  8: 
1240,  55  S.  E.  618,  143  N.  C,  260. 

(Annotated) 
Hviglit   of   steps. 

499.  A  railroad  company  is  liable  for  in- 
jiuy  to  a  woman  in  attempting  to  board 
a  train,  because  the  steps  were  so  unrea- 
sonably high  from  the  ground  that  they 
were  not  reasonably  safe.  Louisville  &  N. 
R.  Co.  v.  Dyer,  48:  816,  153  S.  W.  194,  152 
Ky,   264, 

Crow^ding. 

500.  Where  it  appears  that  there  is  usual- 
ly a  large  crowd  at  a  particular  station  to 
take  a  particular  train,  and  that  there  has 
been  on  many  occasions  surging  and  strug- 
gling to  get  upon  the  cars,  the  jury  may 
find  the  carrier  negligent  in  failing  to  an- 
ticipate such  occurrences  and  take  precau- 
tions to  protect  intending  passengers  from 
injury  therefrom.  Kuhlen  v.  Boston  &  N. 
Street  R.  Co.  7:  729,  79  N.  E.  815,  193  Mass, 
341,     •  (Annotated) 

501.  A  railroad  company  which  makes  no 
effort  to  control  the  pushing  and  surging 
of  the  crowd  attempting  to  board  its  cars 
which  is  customary  at  a  particular  sta- 
tion is  liable  for  injury  to  an  intending 
passenger  by  being  crowded  between  a 
standing  car  and  the  station  platform, 
Collins  V.  Boston  Elevated  R,  Co.  51:  1154, 
105  N.  E.  353,  217  Mass.  420. 


.388 


CARRIERS,  II,  k,  1. 


502.  A  carrier  is  not  liable  for  injury 
to  a  passenger  who  is  crowded  onto  a  car 
and  over  a  suit  case  standing  in  tlie  door, 
by  a  boisterous  crowd  at  the  station,  eager 
to  board  the  train,  if  it  had  no  notice,  from 
previchis  experience  or  information  impart- 
ed to  it,  tliat  a  throng  of  impatient  passen- 
gers would  simultaneously  attempt  to  board 
the  car  at  that  station.  Jackson  v.  Boston 
Elevated  R.  Co.  51:  1152,  105  N.  E.  379,  217 
Mass.  515.  (Annotated) 

503.  To  entitle  a  passenger  injured  while 
attenrpting  to  alight  from  a  street  car  to 
hold  the  company  liable  for  the  injury  be- 
cause of  the  crowded  condition  of  the  car, 
such  condition  must  be  shown  to  have  had 
some  connection  with  the  injury.  Gary  v. 
Los  Angeles  R.  Co.  27:  764,  108  Pac.  682, 
157   Cal.  599. 

Waiting  for  passenger  to  reach  seat. 
Refusal     of     misleading     instruction,      see 

Trial,  904. 
See  also  supra,  251. 

504.  It  is  not  negligence  to  start  a  street 
car  before  an  incoining'  passer^ei  has  reached 
a  seat,  where  there  is  nothing  in  his  ap- 
pearance to  indicate  that  he  needs  unusual 
care  and  precaution  for  his  protection.  Ben- 
nett v.  Louisville  R.  Co.  4:  558,  90  S.  W. 
1052,  122  Ky.  59.  (Annotated) 

505.  In  the  absence  of  special  circum- 
stances, it  cannot  be  said  to  be  negligence  as 
matter  of  law  to  start  a  street  car  without 
any  unusual  jerk  after  a  passenger  has 
reached  the  platform  and  is  in  the  act  of 
stepping  through  the  door  into  the  car. 
Birmingham  R.  L.  &  P.  Co.  v.  Hawkins, 
16:  1077,  44  So.  983,  153  Ala.  86. 

506.  Negligence  on  the  part  of  a  street  car 
conductor  is  not  shown  by  his  giving  the 
signal  to  start  the  car  as  soon  as  a  heavy 
woman  passenger  is  safely  inside  the  vesti- 
bule, where  there  are  no  extraordinary  or 
exceptional  circumstances  making  it  his 
duty  to  exercise  special  care  to  wait  until 
she  is  seated  before  starting.  Boston  Elev. 
R.  Co.  V.  Smith,  23:890,  168  Fed.  628,*  94 
C.  C.  A.  84. 

507.  A  street  car  company  is  negligent  in 
starting  the  car  with  a  pas^nger  standing 
on  the  running  board,  and  with  no  reason- 
able opportunity  to  reach  a  place  of  safety, 
at  a  time  when  a  wagon  is  in  such  relation 
to  the  car  that  the  movement  of  the  car  is 
likely  to  bring  the  passenger  into  collision 
with  it,  or  if  the  motorman,  in  the  exercise 
of  due  diligence,  should  have  foreseen  that 
it  was  dangerous  to  go  ahead.  Lockwood 
V.  Boston  Elevated  R.  Co.  22:  488,  86  N.  E. 
934,  200  Mass.  537. 

Announcing  stations. 
Negligence  as  to,  as  proximate  cause  of  in- 
jury, see  Proximate  Cause,  92,-  93. 

508.  Announcement  of  the  name  of  the 
station  which  a  train  is  approaching  is  not 
an  invitation  to  passengers  to  alight  from 
the  train  before  it  is  safe  to  do  so.  Morris 
V.  Illinois  C.  R.  Co.  31 :  629,  53  So.  698, 
127  La.  445. 

509.  An  announcement  of  the  next  station, 
as  required  by  statute,  a  few  minutes  be- 
fore a  passenger  train  stops  on  a  trestle 
after  dark  before  reaching  the  station,  with- 
Sigest  1-52  Ii.B.A.(N.S.) 


out  warning  the  passengers  to  keep  their 
seats,  does  not  constitute  negligence,  so  as 
to  make  the  carrier  liable  for  the  death  of 
passengers  unaccustomed  to  railway  travel, 
who  leave  the  train  and  fall  from  the  tres- 
tle, since  such  an  announcement  is  not  a 
call  for  a  station  at  which  the  train  ia  in 
the  act  of  stopping,  and  neither  the  an- 
nouncement, nor  the  stopping  of  the  train 
following  it,  amounts  to  an  invitation  to 
alight.  Diggs  v.  Louisville  &  N.  R.  Co.  14: 
1029,  156  Fed.  564,  84  C.  C.  A.  330. 

510.  The  neglect  of  a  railroad  company  to 
announce  the  arrival  of  a  train  at  the  sta- 
tion where  a  passenger  wishes  to  alight  is 
immaterial  upon  the  question  of  liability 
for  injury  to  the  passenger,  where  he  testi- 
fies that  he  knew  that  the  train  had  reached 
his  destination,  and  attempted  to  alight,  so 
that  failure  to  announce  the  station  did  not 
contribute  to  the  injury.  Chicago,  B.  &  Q. 
R.  Co.  v.  Lampman,  25:  217,  104  Pac.  533, 
18  Wyo.  106. 

Assistance    to   passenger. 

Authority  of  Pullman  car  porters  to  assist 
passengers  in  entering  and'  leaving 
trains,  see  Evidence,  36. 

Refusal  to  assist  as  pro.ximate  cause  of  in- 
jury, see  Proximate  Cause,  94. 

Instruction  as  to  duty  to  assist  passenger, 
see  Trial,  905,  1052. 

See  also  supra,  460,  460b,  462,  464. 

511.  As  a  general  rule,  it  is  not  the  duty 
of  the  employees  of  a  railway  company  in 
charge  of  a  passenger  train  to  physically 
assist  passengers  in  alighting  therefrom, 
but  to  furnish  reasonable  opportunity  and 
facilities  for  leaving  the  train;  but  the 
duty  of  rendering  assistance  may  arise 
from  special  circumstances.  Central  of 
Georgia  R.  Co.  v.  Madden,  31:813,  69  S. 
E.  165,  135  Ga.  205. 

512.  Where  a  passenger  obtains  a  ticket 
entitling  him  to  transportation  over  a  rail- 
way between  two  designated  points,  no  duty 
exists  on  the  part  of  the  carrier  to  afford 
him  opportunities  to  leave  the  train  before 
reaching  his  destination,  or  to  assist  him^ 
in  so  doing.  Central  of  Georgia  R.  Co. 
V.  Madden,  31:813,  69  S.  E.  165,  135  Ga. 
205. 

513.  Where  a  railroad  car  is  stopped  at 
a  platform  prepared  and  used  by  the  com- 
pany for  the  purpose  of  passing  to  and 
from  the  train,  and  access  to  the  car  is  not 
difficult,  and  no  special  circumstance  ex- 
ists demanding  additional  care,  no  duty  de- 
volves upon  the  carrier  to  station  an  em- 
ployee at  the  entrance  of  the  car  or  train 
for  the  purpose  of  assisting  passengers  off 
and  on.  St.  Louis  &  S.  F.  R.  Co.  v.  Lee, 
46:  357,  132  Pac.  1072,  37  Okla.  545. 

514.  It  is  not  generally  the  duty  of  the 
employees  of  a  railroad  company  to  assist 
passengers  in  alighting;  but  such  duty  may 
arise  under  special  circumstances.  McGov- 
ern  v.  Interurban  R.  Co.  13:  476,  111  N.  W. 
412,  186  Iowa,  13. 

517.  Railroad  employees  in  charge  of  a 
passenger  train  are  not  bound  to  anticipate 
the  need  of  assistance  of  a  woman  in  feeble 
health,  encumbered  with  a  young  child  and 


CAREIERS,  II.  k,  1. 


389 


a  valise,  so  as  to  render  the  carrier  liable 
in  case  she  falls  while  attempting  to  carry 
her  burdens  off  the  train  without  assistance. 
Illinois  C.  R.  Co.  v.  Cruse,  8:  299,  96  S.  W. 
821,   123  Ky.  463.  (Annotated) 

518.  A  railroad  company  is  not  negligent 
in  failing  to  assist  a  woman  passenger  to 
flight  from  the  train,  in  the  absence  of  any- 
thing to  indicate  that  she  needed  assist- 
ance. Chicago,  B.  &  Q.  R.  Co.  v.  Lamp- 
man,  25:  217,  104  Pac.  533,  18  Wyo.  106. 

519.  A  carrier  is  not  negligent  in  failing 
voluntarily  to  assist  a  woman  with  a  baby 
in  her  arms  to  board  a  car  having  an  un- 
usually high  step,  if  she  is  accompanied 
by  adult  male  relatives.  Louisville  &  N. 
R.  Co.  V.  Dyer,  48:  816,  153  S.  W.  194,  152 
Ky.  264.  (Annotated) 

520.  No  duty  devolves  upon  a  railroad 
company  to  assist  a  woman  carrying  a  child 
to  board  a  train,  where  she  is  attended  by 
friends  and  there  is  a  smooth  cinder  plat- 
form on  a  level  with  the  tracks  where  the 
train  is  standing,  and  a  stool  upon  which  to 
mount  to  the  first  step  of  the  car.  St.  Louis, 
I.  M.  &  S.  R.  Co.  V.  Green,  14:  1148,  107 
S.  W.  168,  85  Ark.  117. 

521.  A  carrier  volunteering  to  assist  a 
woman  to  board  a  train  at  a  station  where 
no  unusual  difficulties  are  present  is  bound 
to  use  only  ordinary  care  in  the  discharge 
of  that  service.  St.  Louis,  I.  M.  &  S.  R. 
Co.  V.  Green,  14:  1148,  107  S.  W.  168,  85 
Ark.  117. 

522.  A  railroad  company  is  responsible 
for  the  injury  of  a .  passenger  due  to  the 
negligent  performance,  by  its  conductor,  of 
a  gratuitous  act  in  assisting  the  passenger 
from  the  car  to  the  station  platform.  Han- 
Ion  V.  Central  R.  Co.  of  N.  J.  10:  411,  79  N. 
E.  846,  187  N.  Y.  73.  '  (Annotated) 
Duty  to  person  assisting  passenger. 
Contributory    negligence    of    one    assisting 

passenger,  see  infra,  559. 
Variance    between    pleading  and  proof,  see 

Evidence,  2501. 
Proximate  cause  of  injury,  see  Proximate 

Cause,  88. 

523.  The  fact  that  there  was  no  agent  or 
employee  of  a  railroad  company  at  or  near 
a  car  at  the  time  one  entered  to  assist 
a  passenger  thereon,  after  which  he  intend- 
ed to  alight,  so  that  no  opportunity  was 
given  him  to  notify  the  company  of  his  in- 
tention so  to  alight,  does  not  impose  a 
duty  upon  the  railroad  company  to  hold 
the  train  until  he  has  had  an  opportunity 
to  alight.  St.  Louis  &  S.  F.  R.  Co.  v.  Lee, 
46:  357,  132  Pac.   1072,  37  Okla.  545. 

524.  A  railroad  company  does  not  owe 
to  one  who  enters  a  train  for  the  pur- 
pose of  assisting  a  passenger  on  the  train, 
the  duty  of  Jiolding  the  train  until  he  has 
had  an  opportunity  to  alight,  in  the  ab- 
Bc;.ce  of  knowledge  on  its  part  that  he  so 
intends  to  alight.  St.  Louis  &  S.  F.  R.  Co. 
V.  Lee,  46:  357,  132  Pac.  1072,  37  Okla.  545. 

525.  A  railroad  company  owing  no  duty 
beyond  ordinary  care,  which  was  given,  to 
a  person  assisting  a  passenger  on  one  of 
its  trains,  intending  thereafter  to  alight 
therefrom,  is  not  liable  to  such  person  who 
Digest  1-52  L.R.A.(N.S.) 


is  injured  while  alighting  from  the  train^ 
St.  Louis  &  S.  F.  11.  Co.  v.  Lee,  46:  357, 
132  Pac.  1072,  37  Okla.  545.        (Annotated) 

526.  A  railroad  company  is  not  liable  for 
the  death  of  one  who  entered  a  car  for  the 
purpose  of  assisting  passengers  to  get 
aboard,  and  who,  in  attempting  to  alight 
after  the  train  had  started  without  any 
warning  signal  having  been  previously 
given,  was,  by  a  sudden  jerk  of  the  train, 
thrown  under  it  and  killed,  although  it  is 
the  custom  of  the  railway  company  to  al- 
low persons  to  get  into  its  cars  for  the 
purpose  of  assisting  passengers,  and  to 
give  certain  signals  before  starting  the 
train,  where  neither  the  conductor  nor  any 
other  employee  of  the  company  had  notice 
of  the  purpose  of  t^e  deceased  in  boarding 
the  train,  or  of  his  intention  or  attempt  to 
alight  therefrom.  Hill  v.  Louisville  &  N. 
R.  Co.  3:  432,  52  S.  E.  651,  124  Ga.  243. 

( Annotated  ) 

527.  One  entering  a  train  to  assist  chil- 
dren who  are  to  become  passengers  is  bound 
to  time  his  acts  with  reference  to  his  knowl- 
edge of  the  customary  stop  of  the  train,  or 
notify  the  trainmen  of  his  intention  to  leave 
the  train  before  it  starts,  or  request  them  to 
render  the  necessary  assistance  to  the  chil- 
dren. Louisville  &  N.  R.  Co.  v.  Wilson, 
8:  1020,  100  S.  W.  290,  120  Ky.  846. 

528.  The  mere  fact  that  a  person  in 
charge  of  children  to  be  placed  on  a  train 
does  not  buy  a  ticket  for  herself  when  se- 
curing theirs,  and  that  she  states  that  she 
is  sending  them  to  their  mother,  is  not  no- 
tice that  she  intends  to  accompany  them 
into  the  train  and  return,  so  as  to  require 
the  railroad  company  to  give  her  notice 
before  starting  the  train  after  she  has  en- 
tered it.  Louisville  &  N.  R.  Co.  v.  Wilson, 
8:  1020,  100  S.  W.  290,  120  Ky.  846. 
Allonring  time  to  alight. 
Presumption    of    negligence,  see  Evidence, 

363. 

Judgment  non  obstante  veredicto,  see  Judg- 
ment, 56. 

Failure  to  allow  time  to  alight  as  proxi- 
mate cause  of  injury,  see  Proximate 
Cause,  88. 

Question  for  jury  as  to,  see  Trial,  203,  684. 

Correctness  of  instruction,  see  Tbial^ 
1053. 

See  also  supra,  234,  486,  488,  523,  524,  528; 
infra,  560,  569. 

529.  The  failure  of  a  carrier  fully  to  stop 
a  train  at  the  destination  of  a  passenger, 
and  afford  him  an  opportunity  to  alight 
with  safety,  is  culpable  negligence.  Wal- 
ters V.  Missouri  P.  R.  Co.  28:  1058,  109  Pac. 
173,  82  Kan.  739. 

530.  A  street  car  company  is  liable  to  a 
passenger  injured  while  attempting  to  alight 
from  a  car  by  the  sudden  and  negligent 
starting  of  the  car.  Donovan  v.  New  Or- 
leans R.  &  L.  Co.  48:  109,  61  So.  216,  132  La. 
239. 

531.  A  railroad  company  is  liable  for  in- 
jury to  a  passenger  by  the  jerking  of  the 
train  in  starting,  while  he  is  standing  on  the 
platform,  awaiting  an  opportunity  to  alight, 
after  the  train  has  stopped  at  his  station, 


390 


CARRIERS,  II,  k,  2. 


with  cars  standing  and  moving  on  parallel 
tracks  so  close  to  his  train  that  any  attempt 
to  use  the  passageway  between  them  is  not 
unlikely  to  result  in  injury.  Smith  v.  Noi;th 
Carolina  R.  Co.  17:  179,  61  S.  E.  2t5«,  147 
N.  C.  448.  (Annotated) 

532.  Street  car  conductors  are  not  bound, 
as  matter  of  law,  to  ascertain  that  a  pas- 
senger who  has  signaled  a  desire  to  leave 
the  car  is  safely  off  before  starting  the  car, 
if  they  use  the  highest  care  with  reference 
to  the  matter  consistent  with  the  transac- 
tion of  the  business.  Millniore  v.  Boston 
Elev.  R.  Co.  11:  140,  80  N.  E.  445,  194  Mass. 
323.  (Annotated) 

533.  A  passenger  injured  by  the  sudden 
starting  of  a  street  car  while  he  is  in  the 
act  of  alighting  therefrom  need  not  show  the 
particular  act  of  negligence  which  caused 
the  car  to  start,  in  order  to  hold  the  car- 
rier liable  for  the  injury.  Paducah  Trac- 
tion Co.  V.  Baker,  18:  1185,  113  S.  W.  449, 
130  Ky.  360. 

534.  A  street  car  company  may  be  found 
negligent  if,  after  a  signal  for  a  stop  has 
been  given  and  a  passenger  has  been  seen 
going  towards  the  exit  and  the  car  has 
slackened  speed,  the  speed  is  suddenly  ac- 
celerated with  unusual  force  and  violence, 
without  any  attempt  to  determine  whether 
or  not  the  passenger  is  in  a  place  of  danger. 
Heinze  v.  Interurban  R.  Co.  21:  715,  117  N. 
W.  385,  139  Iowa,  189. 

535.  Reasonable  care  under  the  circum- 
stances, and  not  great  care,  is  the  phrase  to 
be  used  to  measure  the  duty  of  a  street  car 
company  to  ascertain  a  passenger's  desire 
to  alight  from  a  car  where  it  stops  prepara- 
tory to  crossing  a  railroad  tracli.  Tay- 
mond  V."  Portland  R.  Co.  3:  94,  62  Atl.  602, 
100    Me.    529.  (Annotated) 

536.  The  conductor  of  a  street  car  may  be 
guilty  of  gross  negligence  in  starting  a  car 
with  notice  that  an  intending  passenger, 
who  is  crippled,  is  upon  the  step  at  the  door 
on  the  wrong  side  of  the  car,  seeking  ad- 
mission, before  giving  him  an  opportunity 
to  alight  after  admission  through  such  door 
has  been  refused,  where  the  starting  of  the 
car  will  cause  him  to  fall  from  the  car  into 
the  street.  Yancy  v.  Boston  Elevated  R. 
Co.  a6:  1217,  91  N.  E.  202,  205  Mass.  162. 

(Annotated) 

537.  The  conductor  of  a  street  car  may  be 
found  to  be  negligent  if  he  signals  the  car 
to  start  before  the  intending  passenger  has 
an  opportunity  to  alight  again  in  safety, 
when  he  refuses  to  admit  a  cripple  who,  at- 
tempting to  board  the  car  by  the  wrong 
door,  has  mounted  the  car  steps.  Yancy  v. 
Boston  Elevated  R.  Co.  26:  1217,  91  N.  E. 
202,  205  Mass.  162. 

Stopping     at    unusual    or     dangerous 

place. 
See  also  supra,  455-457. 

538.  A  railroad  company  is  responsible  for 
injury  to  a  passenger  whom  its  conductor 
and  brakeman  permit  to  leave  a  moving 
train  in  the  dark  under  the  erroneous  im- 
pression that  the  train  has  reached  his 
destination  and  stopped.  Baltimore  &  0. 
Digest  1-52  Ii.R.A.(N.S.) 


S.  W.  R.  Co.  V.  Mullen,  2:  115,  75  N.  E.  474, 
217  111.  203. 

539.  A  contract  by  an  interurban  railroad 
company  to  carry  a  passenger  to  a  desig- 
nated country  highway  crossing  implies  the 
duty  to  furnish  the  passenger  a  safe  place 
to  alight  at  such  crossing.  Mc(jovern  v. 
Interurban  R.  Co.  13:  476,  111  N.  W.  412. 
136  Iowa,  13.  (Annotated) 

540.  It  is  the  duty  of  an  interurban  rail- 
road company  stopping  a  car  for  the  accom- 
modation of  a  passenger  who  desires  to 
alight  at  a  highway  crossing  to  exercise  at 
least  reasonable  care  to  enable  her  to  alight 
with  as  little  danger  as  practicable;  and,  if 
the  car  is  stopped,  and  she  is  invited  to 
alight  at  a  place  more  hazardous  than  that 
at  which  the  car  might  have  been  conven- 
iently stopped,  the  carrier  is  negligent.  Mc- 
Govern  v.  Interurban  R.  Co.  13:  476,  111  N, 
W.  412,  136  Iowa,  13. 

541.  A  passenger  on  an  interurban  car 
does  not  assume  the  risk  involved  in  stop- 
ping the  car  for  her  to  alight  at  a  country 
crossing  at  a  more .  dangerous  place  than 
that  at  which  it  is  usually  stopped  for  such 
crossing.  McGfovern  v.  Interurban  R.  Co. 
13:  476,  111  N.  W.  412,  136  Iowa,  13. 

542.  A  passenger  does  not  assume  the 
risk  from  the  failure  of  an  interurban  rail- 
way company  to  provide  a  safe  place  for 
passengers  to  alight  at  a  country  crossing, 
because  she  knows  that  it  had  not  previous- 
ly been  discharging  its  duty  in  that  respect 
as  to  herself  or  other  passengers  stopping 
at  such  crossing.  McGovern  v.  Interurban 
R.  Co.  13:  476,  111  N.  W.  412,  136  Iowa,  13. 

543.  A  street  car  company  is  not  negli- 
gent in  stopping  its  cars  where  the  ground 
slopes  toward  a  sewer  pocket,  so  that  at  the 
point  where  passengers  must  alight  it  is  2 
or  3  inches  below  tlie  ordinary  level,  where 
the  street  is  in  good  repair,  and  it  has  per- 
mitted passengers  to  alight  at  such  point 
for  years  without  any  complaint  that  it 
is  unsafe  to  do  so.  Morrison  v.  Rhode  Is- 
land Co.  45:  988,  87  Atl.  199,  —  R.  I.  — . 

2.    Contributory    negligence. 

a.  In  getting  on. 

(See  also  Carriers,  II.  a,  8,  b  (1)  in  Digest 
L.R.A,  1-10.) 

Consideration  on  appeal  of  question  of 
contributory  negligence,  see  Appeal 
AND  Error,  917. 

Question  for  jury  as  to,  see  Trial,  403,  422. 

See  also  supra,  475. 

544.  A  woman  is  not  negligent  in  attempt- 
ing to  board  a  train  by  the  use  of  an 
unusually  high  step  at  a  way  station  where 
it  stops  only  momentarily  to  receive  and 
discharge  passengers.  Louisville  &  N.  R. 
Co.  v.  Dyer,  48:  816,  153  S.  W.  194,  152  Ky. 
264. 

545.  One  is  not  negligent  as  matter  of  law 
in  passing  behind  a  wagon  moving  in  the 
direction  the  car  is  going,  and  stepping  up- 
on the  running  board  of  a  street  car,  al- 


CARRIERS,  II.  k,  2. 


391 


though  the  starting  of  the  car  is  likely  to 
bring  him  into  collision  with  the  wagon. 
Lock  wood  V.  Boston  Elevated  R.  Co.  22:  488, 
86  N.  E.  934,  200  Mass.   537. 

546.  One  is  negligent  as  matter  of  law  in 
attempting  to  board  a  street  car  when  the 
vestibule  doors  are  closed  and  it  is  in  mo- 
tion, so  that  all  that  he  can  do  is  to  stand 
on  the  step  and  maintain  his  position  by 
clinging  to  the  hand-liolds.  Sigl  v.  Green 
Bay  Traction  Co.  39:  65,  135  N.  VV.  506, 
149  Wis.  112. 

547.  One  who  was  injured  in  attempting 
to  enter  a  street  car  at  a  place  unsafe  be- 
cause of  temporary  repairs  in  the  street  is 
not  necessarily  guilty  of  contributory  negli- 
gence, if  persons  of  ordinary  prudence  in 
the  same  or  similar  situation,  and  with  like 
means  of  knowledge,  would  have  boarded 
the  car  as  such  passenger  did.  Haas  v. 
Wichita  R.  &  Light  Co.  48:  974,  132  Pac. 
195,  89  Kan.  613. 

548.  A  passenger  on  a  freight  train  noti- 
fied that  he  would  have  time  at  the  next 
stopping  place  to  go  back  to  the  car  carry- 
ing his  live  stock  is  chargeable  with  contrib- 
utory negligence  as  matter  of  law,  where  he 
alighted  when  the  train  stopped  at  a  junc- 
tion outside  of  the  town  and  at  a  point  on  a 
high  fill  near  a  cut,  which  was  not  used  for 
the  discharge  of  passengers  or  freight,  and 
while  getting  into  his  own  car  was  thrown 
off  by  a  sudden  jerk  of  the  train  and  in- 
jured. Farrell  v.  Chicago  Great  Western  R. 
Co.  9:  1113,  111  N.  W.  388,  100  Minn.  361. 

549.  A  passenger  who,  having  alighted 
from  the  train  for  exercise,  attempts  to  re- 
enter it,  with  the  aid  of  the  Pullman  porter, 
after  it  has  started,  is  not  per  se  negligent, 
although  the  statute  makes  it  a  crime  for 
one  not  employed  on  the  train  to  get  upon 
a  car  while  it  is  in  motion,  without  the 
consent  of  the  one  having  the  same  in 
charge.  Gannon  v.  Chicago,  R.  I.  &  P.  R. 
Co.  23:  id6i,  117  N.  W.  966,  141  Iowa,  37. 
Attempt  to  enter  at  -wrong  entrance. 

550.  A  cripple  is  not  per  se  negligent  in 
mounting  the  steps  in  attempting,  contrary 
to  a  rule  of  the  company,  to  enter  a  street 
car  on  the  wrong  side,  where  the  door  is 
closed,  where  he  is  ignorant  that  he  will  not 
be  admitted  on  that  side,  and  he  is  seen  by 
the  conductor.  Yancy  v.  Boston  Elevated 
R.  Co.  26:  1217,  91  N.  E.  202,  205  Mass. 
162. 

Getting  into   ctowA. 

551.  An  intending  passenger  is  not  negli- 
gent as  matter  of  law,  in  entering  a  crowd 
attempting  to  board  a  train,  by  the  fact 
that  she  narrowly  escaped  injury  at  the 
same  place  by  doing  so  on  former  occasions. 
Kuhlen  v.  Boston  &  N.  Street  R.  Co.  7:  729, 
79  N.  E.  815,  193  Mass.  341. 

b.  In  getting  off. 

(See  also  Carriers,  II.  a,  S,  b  (2)  in  Digest 
L.R.A.  1-10.) 

Of  passenger  injured  by  automobile  when 
alighting  from  street  car,  see  Auto- 
mobiles, 65,  66. 

Digest  1-52  L.R.A.(N.S.) 


Doctrine  of  last  clear  chance,  see  Negli- 
gence, 284. 

Question  for  jury  as  to,  see  Trial,  387,  389, 
402-406. 

See  also  supra,  374,  375,  542. 

552.  A  passenger  on  an  interurban  car 
which  has  stopped  for  her  to  alight  at  a 
highway  crossing  may  reasonably  assume 
that  she  is  invited  to  alight  at  the  point 
where  the  car  stopped,  unless  warned  of 
danger;  and  is  not  conclusively  negligent 
in  accepting  the  invitation  to  alight  at  that 
place,  although  it  is  in  fact  unsafe.  Mc- 
Govern  v.  Interurban  R.  Co.  13:  476,  111  N. 
W.  412,  136  Iowa,  13. 

553.  A  woman  passenger  on  a  street  car 
is  not  negligent  per  se  in  leaving  her  seat 
and  approaching  the  door  as  the  car  slack- 
ened its  speed  when  approaching  the  point 
where  she  had  signified  her  intention  to 
stop.  Schultz  V.  Michigan  United  R.  Co. 
27:  503,  123  N.  W.  594,  158  Mich.  665. 

At  place   other  than  station. 

554.  A  passenger  on  a  railroad  train,  who 
is  notified  that  the  next  station  at  which 
the  train  will  stop  is  his  destination,  hag 
a  right,  unless  notified  to  the  contrary,  to 
assume  that  the  car  will  stop  at  the  proper 
place  for  him  to  get  off.  Baltimore  &  O. 
S.  W.  R.  Co.  V.  Mullen,  2:  115,  75  N.  E.  474, 
217  111.  203.  (Annotated) 

555.  A  passenger  intending  to  alight  from 
the  train  at  the  next  station  is  not  justified 
in  leaving  it  when  it  first  stops,  if  the  sur- 
roundings are  such  as  to  preclude  a  reason- 
able belief  on  his  part  that  he  is  getting  off 
where  the  company  expected  him  to  alight. 
Farrell  v.  Chicago  Great  Western  R.  Co.  9: 
1113,  111  N.  W.  388,  100  Minn.  361. 

(Annotated) 
From    moving    street    car. 

556.  A  street  car  passenger  is  not  negli- 
gent per  se  because,  after  signaling  for  a 
stop  and  the  car  has  begun  to  slacken  speed 
as  his  destination  is  approached,  he  takes  a 
position  on  the  step  preparatory  to  alight- 
ing when  the  car  stops.  Heinze  v.  Interur- 
ban R.  Co.  21:  715,  117  N.  W.  385,  139  Iowa, 
189.  .  (Annotated) 

557.  That  one  injured  by  attempting  to 
alight  from  a  street  car  moving  at  the  rate 
of  6  miles  an  hour  was  a  foreigner,  re- 
cently arrived  in  this  country,  and  that  he 
did  not  understand  English,  and  was  in- 
experienced in  street  car  travel,  but  had 
seen  other  passengers  leave  moving  cars, 
does  not  relieve  him  from  the  charge  of 
contributory  negligence  in  making  the  at- 
tempt. Fosnes  v.  Duluth  Street  R.  Co. 
30:  270,  122  N.  W.  1054,  140  Wis.  455. 

(Annotated) 
From    moving    train    generally. 
Burden  of   disproving  negligence,   see  Evi- 
dence, 475. 
As    proximate    cause  of  injury,  see  Pboxi- 

mate  Cause,  88. 
As  question  for  jury,  see  Trial,  404,  405.     ' 
Verdict  for  plaintiff  as  violation  of  instruc- 
tions as  to  contributory  negligence,  see 
Trial,  1125. 
See  also  supra,  495. 


392 


CARRIERS,  II.  k,  2. 


558.  In  the  absence  of  negligence  on  the 
part  of  railroad  employees,  one  who,  having 
entered  a  train  to  assist  a  passenger,  is  in- 
jured by  attempting  to  jump  from  it  after 
it  has  started,  cannot  hold  the  railroad 
company  liable  for  the  injury.  Louisville 
&  N.  R.  Co.  V.  Wilson,  8:  1020,  100  S.  W. 
290,  120  Ky.  846. 

559.  A  passenger  cannot  hold  the  carrier 
liable  for  injuries  caused  by  his  alighting 
from  a  moving  train  if,  with  every  reason- 
able opportunity  to  ascertain  whether  or 
not  the  speed  is  slackened  sufficiently  to 
permit  him  to  alight  in  safety,  he  fails  to 
do  so.  Morris  v,  Illfnois  C.  R.  Co.  31 :  629, 
63  So.  698,  127  La.  445. 

660.  Negligence  of  a  railroad  company  in 
failing  to  stop  its  train  long  enough  at  a 
station  to  permit  passengers  to  alight  will 
not  absolve  a  passenger  from  negligence  in 
attempting  to  alight  from  the  train  after 
it  has  again  been  put  in  motion.  Farlev  v. 
Norfolk  &  W.  R.  Co.  27:  mi,  67  S.  E.  1116, 
67  W.  Va.   350. 

561.  A  passenger  who,  in  the  dark  and 
when  encumbered  by  baggage,  after  standing 
on  the  steps  of  a  railroad  train  long  enough 
to  ascertain  the  speed  at  which  it  is  moving, 
attempts,  in  the  exercise  of  his  own  judg- 
ment, to  alight  from  the  train  when  it  is 
moving  from  6  to  10  miles  an  hour,  is  neg- 
ligent as  matter  of  law.  Hunter  v.  Louis- 
ville &  N.  R.  Co.  9:  848,  43  So.  802,  150  Ala. 
694. 

562.  That  the  train  is  moving  slowly 
when  a  passenger  reaches  the  platform  for 
the  purpose  of  alighting  -does  not  render 
negligent  per  se  his  act  in  going  down  upon 
the  car  steps.  Chicago,  B.  &  Q.  R.  Co. '  v. 
Lampman,  25:  217,  104  Pac.  533,  18  Wyo. 
106. 

563.  A  woman  passenger  on  a  railroad 
train  who,  upon  reaching  the  platform  for 
the  purpose  of  alighting,  finds  the  train 
moving  very  slowly,  is  guilty  of  negligence 
in  going  down  the  car  steps  and  attempting 
to  alight,  if  the  act  was  such  that  under 
the  circumstances  an  ordinarily  careful, 
cautious,  and  prudent  person  would  have 
apprehended  danger  therefrom.  Chicago,  B. 
&  Q.  R.  Co.  v.  Lampman,  25:  217,  104  Pac. 
533,  18  Wyo.   106. 

564.  A  railroad  company  is  not  liable  for 
injury  to  a  passenger  who  falls  from  a  train 
in  consequence  of  the  attempt  of  Its  brake- 
man  to  prevent  his  alighting  from  it  after 
it  is  in  motion.  Chesapeake  &  0.  R.  Co.  v. 
Bell,  28:  773,  68  S.  E.  398,  111  Va.  41. 

565.  A  passenger  seventy-three  years  of  age 
who,  after  a  railroad  train  has  made  a  usual 
stop  at  a  station,  gets  off  after  the  train 
has  started  and  is  moving  at  such  a  rate 
of  speed  that  he  holds  to  the  railing  for 
several  steps,  and  is  thrown  under  the  train, 
is  guilty  of  contributory  negligence  barring 
recovery.  Hoylman  v.  Kanawha  &  M.  R. 
Co.  22:  741,  64  S.  E.  536,  65  W.  Va.  264. 

(Annotated) 

566.  Whether  or  not  a  thirteen-year-old 
boy  was  negligent  in  attempting  to  leave 
a  train  while  it  was  in  motion  must  be  de- 
termined by  ascertaining  whether  or  not 
Digest  1-52  I<.B.A.(N.S.) 


the  ordinary  boy  of  his  age  and  experience, 
and  with  his  knowledge  of  the  situation  and 
its  dangers  would  have  done  what  he  did. 
Kambour  v.  Boston  &  M.  R.  Co.  45:  1188, 
86   Atl.    624,   —   N.   H.   — . 

567.  A  boy  who  does  not  know  that  it  is 
the  duty  of  a  railroad  company  to  prevent 
him  from  jumping  from  its  train  does  not 
consent  to  its  failure  to  do  so,  so  as  to 
make  applicable  the  maxim  Volenti  non  fit 
injuria  to  an  injury  received  by  him  in  so 
doing.  Kambour  v.  Boston  &  M.  R.  Co.  45: 
1 188,  86  Atl.   624,  —  N.  H.  — . 

568.  An  intelligent,  smart  boy,  nearly  fif- 
teen years  old,  is  negligent  in  jumping  from 
a  train  moving  at  the  rate  of  30  miles  an 
hour,  which  will  prevent  holding  the  rail- 
road company  liable  for  the  resulting  in- 
jury. Baker  v.  Seaboard  A.  L.  R.  Co.  29: 
846,  64  S.  E.  606,  150  N.  C.  562. 

(Annotated) 
509.  A  person  who  is  not  given  a  reason- 
able time  to  alight  from  a  train  before  it 
continues  on  its  journey  is  bound  to  mini- 
mize the  possible  loss  to  the  company  be- 
cause of  its  wrongdoing  by  staying  on  the 
train,  and  not  attempting  to  leave  it  after 
it  is  in  motion,  to  the  peril  of  his  life  and 
limb,  with  the  view  of  holding  the  company 
liable  in  case  of  injury.  Chesapeake  &  ').  R. 
Co.  V.  Bell,  28:  773,  68  S.  E.  398,  111  Va. 
41. 
Failnre  to  stop  at  station. 

570.  One  thrown  by  a  sudden  jerk  of  the 
train  from  the  steps  of  a  moving  car  from 
which  he  was  attempting  to  alight  to  avoid 
being  carried  beyond  his  destination  is  not 
precluded  from  recovering  damages,  unless 
guilty  of  negligence  proximately  causing  the 
injury  sustained  by  him.  Turley  v.  Atlanta, 
K.  &  N.  R.  Co.  8:  695,  56  S.  E.  748,  127  Ga. 
594. 

571.  A  passenger  who  went  upon  the  plat- 
form of  the  car  when  his  station  was  called, 
so  as  to  be  ready  to  alight,  is  not  charge- 
able with  negligence,  as  matter  of  law, 
where,  when  the  train  slowed  down,  but 
failed  to  stop,  he  attempted  to  alight  to 
avoid  being  carried  beyond  his  destination, 
and  was  thrown  to  the  ground  by  a  sudden 
jerk  of  the  train,  and  injured.  Turley  v. 
Atlanta,  K.  &  N.  R.  Co.  8:  695,  56  S.  E.  748, 
127  Ga.   594. 

Order    or    advice    of    employees. 
Question  for  jury  as  to,  see  Trial,  405. 

572.  A  passenger  who,  at  the  imperative 
direction  of  the  conductor,  alights  in  the 
nighttime  from  a  passenger  train  as  it  is 
passing  his  destination  at  a  speed  of  3  or 
4  miles  an  hour,  is  not  negligent  as  matter 
of  law,  where  the  conductor  directed  him 
as  to  the  manner  of  alighting,  and  it  was  not 
so  dark  as  to  prevent  the  passenger  from 
seeing  where  he  was  stepping.  Walters  v. 
Missouri  P.  R.  Co.  28:  1058,  109  Pac.  173, 
82  Kan.  739. 

673.  A  passenger  who  attempts  to  alight 
from  a  moving  railroad  train,  when  he 
knows  it  is  dangerous  to  do  so,  and  is  in- 
jured thereby,  is  guilty  of  such  negligence 
as  will  preclude  recovery,  notwithstanding 
he  may  have  been  directed  or  told  by  the 


CARRIERS,  II.  1,  1. 


393 


conductor  to  get  off.  Farley  v.  Norfolk  & 
W.  R.  Co.  27:  nil,  67  S.  E.  1116,  67  W.  Va. 
350. 

574.  A  railroad  company  is  not  liable  for 
the  act  of  its  agent  or  conductor  in  negli- 
gently directing  a  passenger  to  jump  from 
a  moving  train,  when  the  circumstances 
show  tliat  the  danger  was  obvious  to  the 
passenger  himself,  and  when  no  force  or 
threats  were  used  to  eject  him.  Farley  v. 
Norfolk  &  W.  R.  Co.  27:  iiii,  67  S.  E.  1116, 
67  W.  Va.  350. 

675.  Upon  the  question  whether  or  not  a 
crippled  trespasser  was  guilty  of  contribu- 
tory negligence  in  obeying  the  instructions 
of  the  conductor  to  get  oli"  a  moving  train, 
the  jury  may  take  into  account  his  crippled 
condition.  Doggett  v.  Chicago,  B.  &  Q.  R. 
'Co.  13:  364,  112  N.  W.  171,  134  Iowa,  690. 

1.  Stations,  apjjroaches,  and  platforms. 

1.  In  general. 

a.  Carrier's  duty  or  negligence. 

(Bee  also  Carriers,  II.  a,  9,  a  (1)  in  Digest 
LJt.A.  1-10.) 

Ejection  of  drunken    person    from    station, 

see  supra,  467,  468. 
Duty    to    maintain   depots,  etc.,   see   infra, 

1077-1084. 
Governmental  regulations  as  to  depot,   see 

infra,  IV.  d. 
Evidence  on  question  of  negligence,  see  Evi- 
dence, 1521. 
Sufficiency    of    allegations,    see    Pleading, 

293. 
Proximate  cause  of  injury  to   one   crossing 

track,  see  Proximate  Cause,  74. 
Negligence  as  question  for  jury,  see  Trial, 

372-377. 
Correctness  of  instructions    as    to    carrier's 

duty,  see  Trial,  1054. 
See  also  supra,  501,  502. 

576.  It  is  the  duty  of  a  common  carrier 
to  provide  reasonably  safe  approaches  to 
its  cars,  and  to  provide  such  approaches 
with  lights  at  night.  Messenger  v.  Vally 
Citv  Street  &  I.  R.  Co.  32:  881,  128  N.  W. 
1023,  21  N.  D.  82.  (Annotated) 

577.  A  carrier  is  not  bound  to  improve 
and  maintain  in  a  safe  condition  every  cross 
or  short  cut  over  neighboring  property  which 
individuals  may  adopt  in  reaching  its  sta- 
tion or  landing  place,  although  the  use  is 
sufficient  to  create  a  visible  path,  if  it  does 
nothing  to  induce  the  public  to  believe  that 
it  has  provided  the  path,  or  holds  it  out  as 
safe.  Woods  v.  White  Star  Line,  27:  992, 
125  N.  W.  396,  160  Mich.  540. 

578.  Where  a  railroad  company  prepares 
a  strip  of  land  upon  which  it  discharges 
passengers,  in  front  of  its  depot,  which 
strip  of  land  has  been  used  by  the  public 
for  years  as  the  proper  approach  to  and  the 
recognized  way  of  departure  from  its  cars, 
it  is  under  obligation  to  one  who  has  busi- 
ness to  transact  with  or  on  the  train  of 
the  company  to  use  a  reasonable  degree  of 
care  to  keep  said  strip  of  land  in  a  safe 
Digest  1-52  L.R.A.(N.S.) 


condition.     Bell  v.  Houston  &  S.  R.  Co.  43: 
740,  60  So.  1029,  132  La.  88. 

579.  The  rights  of  persons  having  business 
with  a  train  which  has  stopped  at  a  station, 
on  a  side  track  so  situated  that  other  tracks 
are  between  it  and  the  depot  platform,  are 
the  same  as  if  all  the  intervening  space 
between  the  depot  and  the  train  constitu- 
ted the  platform.  Atchison,  T.  &  S.  F.  R. 
Co.  V.  McElroy,  13:  620,  91  Pac.  785,  76  Kan. 
271. 

580.  A  railroad  company  which  requires 
passengers  to  cross  tracks  in  the  night  to 
board  a  train  must  provide  a  reasonably 
safe  way  for  the  crossing  to  be  made,  and 
exercise  the  highest  degree  of  care  to  pro- 
tect them  from  injury  in  making  the  pas- 
sage. Dieckmann  v.  Chicago  &  N.  W.  R. 
Co.  31 :  338,  121  N.  W.  676,  145  Iowa,  250. 

( Annotated ) 

581.  A  railroad  company  is  liable  to  a  pas- 
senger who,  because  of  obstructions  on  the 
path  providing  egress  from  its  station,  is 
compelled  to  walk  so  close  to  tracks  used 
by  trains  that,  without  negligence  on  h  s 
part,  he  is  struck  by  a  train  passing  along 
the  track.  Powell  v.  Philadelphia  &  R.  R. 
Co.  20:  1019,  70  Atl.  268,  220  Pa.  638. 

582.  A  railroad  company  which  custom- 
arily permits  an  employee  of  a  newspaper 
publisher  to  take  the  papers  from  the  station 
gate  to  the  mail  car  at  a  time  when  passen- 
gers are  hurrying  to  and  fro  on  the  plat- 
form is  liable  for  his  negligent  use  of  the 
truck  on  which  they  are  carried,  which  re- 
sults in  injury  to  a  passenger.  Mangum  v. 
North  Carolina  R.  Co.  13:  589,  58  S.  E.  913, 
145  N.  C.  152.  (Annotated) 

583.  The  duty  of  a  railway  company  to 
maintain  a  suitable  and  safe  place  for  the 
delivery  of  baggage  to  passengers  at  their 
destination  on  the  carrier's  line,  in  so  far 
as  it  affects  the  safety  of  passengers  in  the 
delivery  of  their  baggage,  cannot  be  dele- 
gated to  another,  whether  it  be  a  separate 
and  independent  corporation  or  a  mere  em- 
ployee, so  as  to  relieve  the  carrier  of  its 
legal  liability  for  injury  to  a  passenger 
caused  by  the  negligence  of  those  engaged 
in  delivering  baggage  on  the  premises  used 
by  the  carrier  for  that  purpose.  Johnson 
V.  Florida  East  Coast  R.  Co.  50:561,  63  So. 
713,  66  Fla.  415.  (Annotated) 

584.  The  mere  fact  that  a  railroad  com- 
pany which  provides  a  subway  for  passen- 
gers to  pass  from  one  side  of  its  tracks  to 
the  other,  with  signs  directing  them  to  it, 
does  not  enforce  its  order  not  to  let  them 
cross  over  standing  trains,  because  it  is 
impossible  to  distinguish  between  those 
wishing  to  embark  on  such  trains  and  those 
wishing  to  cross  the  tracks,  does  not  amount 
to  an  invitation  to  them  to  cross  the  train, 
within  the  rule  governing  the  care  which 
is  due  to  invitees.  Hillman  v.  Boston  Ele- 
vated R.  Co.  32:  198,  93  N.  E.  653,  207  Mass. 
478.  (Annotated) 

585.  A  union  depot  company  which  under- 
takes to  provide  common  terminal  facili- 
ties for  the  passenger-carrying  railroads  en- 
tering a  city  owes  to  passengers  and  their 
attendants  the  duty  of  keeping  the  station 


394 


CARRIERS,  II.  1,  1. 


and  its  facilities  in  a  proper  condition  for 
their  safety.     Union  Depot  &  R.  Co.  v.  Lon- 
doner,  331*433,   114   Pac.   316,   50   Colo.   22. 
Tox^ard  VT^hom  duty  o^ired. 
Negligence     in     turning     intoxicated     tres- 
passer   out    of    station,  see  supra,  467, 
468. 
Duty  toward  person  assisting  passenger  on 
or  off  train,  see  supra,  523-528. 
586.  Accommodations  of  a  carrier  of  pas- 
sengers   should    be    ample    and    suitable   to 
meet  the  reasonable  requirements  of  passen- 
gers  and   those  who   rightfully   accompany 
them,  as  well  as  others  who  have  a  right 
to  go  into  the  depots,  on  business  or  other- 
wise, and  to  use  the  facilities.     Louisville 
&  N.  R.  Co.  V.  Burr,  44:  189,  68  So.  643,  63 
Fla.  491. 

687.  A  railroad  company  owes  only  ordi- 
nary care  to  persons  impliedly  invited  upon 
its  platform  who  are  not  passengers.  Fre- 
mont, E.  &  M.  Valley  R.  Co.  v.  Hagblad, 
4:  254,  101  N.  W.  1033,  72  Neb.  773. 

588.  In  order  to  bring  a  person  within  the 
station  house  or  upon  the  platform  of  a 
railroad  station  within  the  protection  of  the 
legal  duties  owing  by  a  common  carrier  to 
its  passengers,  a  person  intending  to  become 
a  passenger  must  go  to  the  station  at  a 
reasonable  time  before  the  time  fixed  for  the 
departure  ot  the  train  upon  which  he  in- 
tends to»  take  passage,  in  a  proper  manner, 
and  there,  either  by  the  purchase  of  a  tick- 
et or  in  some  other  manner,  indicate  to  the 
carrier  his  intention  to  take  passage,  and 
thus  place  himself  in  the  carrier's  charge. 
Fremont,  E.  &  M.  Valley  R.  Co.  v.  Hagblad, 
4:  254,  101  N.  W.  1033,  72  Neb.  773. 

589.  A  railroad  company  is  not  bound  to 
keep  its  station  safe  as  for  invited  guests,  for 
a  mere  friend  or  acquaintance  of  an  intend- 
ing passenger  who  resorts  to  it  to  see  him 
begin  his  journey.  Galveston,  H.  &  S.  A. 
R.  Co.  V.  MatzdorfT,  20:  833,  112  S.  V^^.  1036, 
102  Tex.  42.  (Annotated) 

590.  A  railway  company  is  bound  to  exer- 
cise ordinary  care  for  the  safety  of  a  per- 
son who  is  upon  its  premises  for  the  pur- 
pose of  meeting  an  incoming  passenger,  and 
is  liable  to  such  person  for  injuries  sus- 
tained on  account  of  the  railway  company's 
failure  to  exercise  such  care.  Cogswell  v. 
Atchison,  T.  &  S.  F.  R.  Co.  20:  837,  99  Pac. 
923,  23  Okla.  181. 

591.  A  railway  company  is  liable  to  a 
person  who  goes  to  its  depot  to  meet  an 
incoming  passenger  for  the  purpose  <t)f  con- 
tinuing, after  meeting  him,  a  business  nego- 
tiation between  them,  for  injuries  received 
by  him  because  of  the  negligence  of  the  com- 
pany in  permitting  its  station  platform  to 
remain  in  a  dangerous  condition,  on  account 
of  which  such  person  falls  and  is  injured. 
Cogswell  V.  Atchison,  T.  &  S.  F.  R.  Co. 
20:  837,  99  Pac.  923,  23  Okla.  181. 

(Annotated) 

592.  A  person  who  is  at  a  railroad  depot 
for  the  purpose  of  mailing  a  letter  on  the 
mail  car  is  neither  a  trespasser  nor  a  li- 
censee; and  the  railroad  owes  to  him  the 
same  obligation  of  safe  passage  to  and  from 
the  train  as  it  owes  to  a  passenger.  Bell 
Digest  1-52  I<.R.A.(N.S.) 


V.  Houston  &  S.  R.  Co.  43:  740,  60  So.  1029, 
132  La.  88. 

593.  It  is  the  duty  of  a  railroad  com- 
pany which  carries  mail  under  contract 
with  the  United  States,  by  whose  regula- 
tion postal  clerks  on  mail  trains  are  re- 
quired to  receive  mail  matter  on  the  mail 
car  while  stopping  at  its  regular  stations,  to 
use  reasonable  care  to  keep  in  a  reasonably 
safe  condition  a  recognized  way  over  its 
ground  to  its  station  platform;  and  a  fail- 
ure so  to  keep  it,  resulting  in  personal  in- 
jury to  one  passing  along  such  way  for  the 
purpose  of  mailing  a  letter  on  a  mail  train 
upon  its  arrival,  is  actionable  negligence. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Jandera,  24: 
535,  104  Pac.  339,  24  Okla.  106. 

(Annotated) . 

594.  A  newsboy  whose  custom  it  was,  to 
the  knowledge  of  the  employees  of  a  rail- 
road company  and  without  objection  from 
them,  to  frequent  a  depot  of  said  company 
for  the  purpose  of  getting  his  papers  from 
passing  trains  and  selling  them  to  patrons 
of  the  railroad  and  others  assembled  there, 
is  not  a  mere  trespasser,  and  the  railroad 
company  owes  him  a  higher  duty  than  not 
to  wilfully  or  wantonly  injure  him.  Ingram 
v,  Kansas  Citv,  S.  &  G.  R.  Co.  50:  688,  64 
So.  146,  134  La.  377.  (Annotated) 

595.  A  railroad  company  through  whose 
negligence  a  baggage  truck  was  placed  too 
close  to  an  incoming  train,  by  which  it  was 
struck  and  thrown,  striking  a  newsboy  and 
injuring  him  so  that  he  died,  is  liable  for 
damages  to  his  parents  for  such  injury. 
Ingram  v.  Kansas  City,  S.  &  G.  R.  Co.  50: 
688,  64  So.  146,  134  La.  377. 

Failure    to    heat   station. 
Damages  for  injury  resulting  from  failure 
to  heat  station,  see  Damages,  612. 

596.  A  railroad  company  carrying  pas- 
sengers is  obliged  reasonably  to  heat  its 
stations  in  winter  for  the  accommodation  of 
passengers,  but  it  owes  such  duty  only  to 
passengers.  Barnett  v.  Minneapolis  &  St.  L. 
R.  Co.  48:  262,  143  N.  W.  263,  123  Minn. 
153. 

597.  A  railroad  company  is  liable  to  one 
who  has  purchased  a  ticket  for  passage 
over  its  road  for  damages  arising  from  a 
cold  station,  where  common  prudence  does 
not  require  the  passenger  to  depart  from  the 
station.  Barnett  v.  Minneapolis  &  St.  L. 
R.  Co.  48:  262,  143  N.  W.  263,  123  Minn. 
153. 

Injury  by  object  tbroiv^n  from  train. 

598.  A  railroad  company  is  not  liable  for 
injury  to  a  passenger  waiting  on  a  station 
platform  for  a  train,  by  a  brake  bar  which 
becomes  detached  from  a  passing  freight 
train  and  is  hurled  against  him,  if  the  car 
was  inspected  a  few  hours  before  the  acci- 
dent and  found  to  be  in  good  order,  so  that 
the  loosening  of  the  bar  must  be  regarded 
as  a  mere  accident,  without  negligence  on 
the  part  of  the  carrier.  Bradley  v.  Lake 
Shore  &  M.  S.  R.  Co.  44:  1148,  86  Atl.  200, 
238  Pa.  315.  (Annotated) 
Xlzca^ation. 

599.  A  railroad  company  owes  no  duty 
to  light  or  guard  an  excavation  on  its  prop- 


CAHRIERS,  II.  1,  1. 


395 


erty  near  a  pathway  on  its  right  of  way 
which  has  to  its  linowledge  been  used  by 
the  public  generally  for  many  years,  so  as 
to  render  it  liable  to  one  who,  after  alight- 
ing from  its  train  on  a  dark  night,  at- 
tempts to  follow  such  pathway,  and  falls 
into  the  excavation,  to  his  injury,  if  the 
excavation  is  some  distance  from  the  depot 
grounds.  Louisville  &  N.  R.  Co.  v.  Plobbs, 
47:  1149,  159  S.  VV.  682,  155  Ky.  130. 

(Annotated) 
Running  train  tlirougli  station  vrith- 

out   -wrarning. 
Sufficiency  of  evidence  to  show  duty  to  give 
warning  of  approach  of  train,  see  Evi- 
dence, 2149. 

600.  To  run  a  train  through  ■  unlighted 
station  grounds  after  dark,  without  warn- 
ing or  headlight,  past  a  platform  where 
persons  may  reasonably  be  expected  to  be, 
is  evidence  of  such  wantonness  as  to  vender 
the  railroad  company  liable  for  injuries  to 
a  trespasser  on  the  platform  who  is  struck 
by  the  train.  Neice  v.  Chicago  &  A.  R. 
Co.  41:  162,  98  N,  E.  989,  254  111.  595. 

601.  A  railroad  company  cannot  be  re- 
lieved from  liability  for  injury  to  a  pas- 
senger at  a  station,  due  to  its  running  a 
train  past  it  at  excessive  speed,  without 
warning,  on  the  theory  that  the  engineer 
could  not  anticipate  that,  with  a  clear  view 
of  the  track,  the  injured  person  would  step 
in  front  of  the  train.  Chicago,  R.  I.  &  P. 
R.  Co.  V.  Stepp,  22:  350,  164  Fed.  785,  90 
C.  C.  A.  431. 

602.  Sufficient  warning  of  the  rapid  ap- 
proach of  a  train  which  is  to  pass  through 
a  station  without  stopping  is  not  given  by 
the  mere  sounding  of  the  whistle,  where 
another  train  is  standing  at  the  station,  re- 
ceiving and  discharging  passengers.  Chica- 
go, R.  I.  &  P.  R.  Co.  V.  Stepp,  22:  350,  164 
Fed.  785,  90  C.  C.  A.  431. 

603.  A  railroad  company  is  not  relieved 
from  liability  for  injury  to  a  passenger  at 
a  station,  due  to  its  running  its  train  at 
excessive  speed  without  signals,  by  the  fact 
that  it  was  operating  under  the  direction 
of  a  train  despatcher  of  another  company, 
whose  track  it  was  using.  Chicago,  R.  I. 
&  P.  R.  Co.  v.  Stepp,  22:  350,  164  Fed.  785, 
90  C.  C.  A.  431. 

604.  A  railroad  company  which  causes  a 
passenger  train  to  stop  on  a  side  track, 
leaving  other  tracks  between  it  and  the 
depot  platform,  is  negligent  if  it  permits 
another  train  to  pass  between  the  passenger 
train  and  the  depot  at  a  high  rate  of  speed, 
without  sounding  bell  or  whistle  or  giving 
other  warning,  while  business  is  being  trans- 
acted with  the  standing  train;  and  the  com- 
pany is  liable  to  any  person  rightfully  on 
the  premises,  who  is  injured  by  the  passing 
train.  Atchison,  T.  &  S.  F.  R.  Co.  v.  Mc- 
Elroy,  13:  620,  91  Pac.  785,  76  Kan.  271. 

(Annotated) 
Passageway. 

605.  A  carrier  is  not  liable  for  injury  to 
a  passenger  walking  in  daylight,  with  ample 
opportunity  to  observe  his  surroundings,  by 
tripping  over  a  board  laid  over  fresh  con- 
crete in  a  passageway  where  repairs  were 
Digest  1-52  Ii.R.A.(N.S.) 


in    progress,    barriers    being    placed    in    the 
immediate  vicinity  around  uncompleted  por- 
tions of  the   work.     Woodbury  v.  Maine  C. 
R.  Co.  43:  682,  85  Atl.  753,  110  Me.  224. 
Flag  station. 

606.  A  railroad  company  is  not  negligent 
in  -placing,  in  the  daytime,  a  few  ties  neces- 
sary for  repairing  its  tracks  along  the  path 
between  the  car  exit  and  the  highway  at 
a  flag  station.  Fulghum  v.  Atlantic  C.  L. 
R.  Co.  39:  558,  74  S.  E.  584,  158  N.  C.  555. 

(Annotated) 

b.  Contributory  negligence. 

(See  also  Carriers,  II.  a,  9,  a  (2)  in  Digest 
L.II.A.  1-10.) 

Doctrine   of   last   clear   chance,    see   Nego- 

GENCE,  286. 
As    proximate    cause    of    injury,  see  Pkoxi- 

MATE  Cause,  74. 
As  question  for  jury,  see  Trial,  304,  395. 
See  also  supra,  340;   infra,  610,  617. 

607.  One  who  sat  on  the  rail  against  the 
wheel  of  one  of  a  string  of  freight  cars  on 
a  switch,  while  waiting  for  a  passenger 
train  to  arrive,  to  meet  a  passenger,  was 
negligent,  so  as  to  bar  recovery  for  in- 
juries by  an  engine  backing  the  car  against 
him.  Hammers  v.  Colorado  Soutliern,  N. 
0.  &  P.  R.  Co.  34:  685,  55  So.  4,  128  La. 
648. 

608.  A  passenger,  in  attempting  to  reach 
the  highway  from  a  car  exit  along  a  path 
upon  which  tics  have  been  placed  for  re- 
pair purpose,  is  negligent  in  stepping  upon 
one  which  is  wet  and  slippery,  and  is  lying 
in  an  inclined  position,  when  he  might  have 
stepped  over  it,  or  gone  around  it  in  safety, 
and  cannot  therefore  hold  the  railroaJ  com- 
pany liable  for  a  resulting  injury.  Fulghum 
v.  Atlantic  C.  L.  R.  Co.  39:  558,  74  S.  E. 
584,    158   N.   C.   555. 

609.  One  who  is  at  a  railroad  station  for 
the  purpose  of  mailing  a  letter  on  a  mail 
train  is  not  guilty  of  contributory  negli- 
gence in  leaving  the  station  by  a  dark  path 
between  the  house  and  main  tracks,  the  usu- 
al path  and  the  only  one  from  the  station 
except  through  a  colored  waiting  room 
which  the  person  has  no  invitation  to  use. 
Bell  v.  Houston  &  S.  R.  Co.  43  =  740,  60  So. 
1029,  132  La.  88. 

610.  A  carrier  is  not  liable  for  injuries 
received  by  a  passenger  who,  in  passing 
through  its  station  in  the  daytime,  opened 
an  unlocked  door  leading  to  the  basement, 
and,  without  looking,  entered  and  fell,  where 
he  had  been  through  the  station  before, 
and  the  door  was  not  marked  for  the  use 
of  passengers,  j^nd  was  unlike  externally,  as 
to  size,  shape,  and  appearance,  the  doors  for 
the  use  of  passengers,  all  of  which  were 
labeled.  Speck  v.  Northern  P.  R.  Co.  24: 
249,  122  N.  W.  497,  108  Minn.  435. 

(Annotated) 
At  flag  station. 

611.  One  desiring  to  take  a  train  at  a 
flag  station  at  night  is  negligent  in  attempt- 
ing  to   walk   down   the   track   to   board   it 


39G 


CARRIERS,  II.  1,  2,  3. 


when  it  passes  the  station  before  stopping, 
and  is  slowly  backing  to  the  regular  stop- 
ping place,  which  will  preclude  his  holding 
the  carrier  liable  for  injury  due  to  collision 
with  the  train  in  the  dark.  King  v.  Tennes- 
see Central  R.  Co.  51:  618,  164  S.  W.  1181, 
129  Tenn.  44. 

612.  One  who  after  dark  goes  to  a  flag 
station  intending  to  Hag  an  approaching 
train  with  burning  paper  to  become  a  pas- 
senger on  it  cannot  hold  the  carrier  liable 
for  his  injury  in  case  he  fails  to  light  the 
paper  soon  enough  to  permit  the  train  to 
stop  at  the  station  and  it  strikes  him  in 
passing.  Bruff  v.  Illinois  C.  R.  Co.  24:  740, 
121  S.  W.  475,  —  Ky.  — .  (Annotated) 

2.  Platforms  generally. 

(See  also   Carriers,  II.   a,  9,  b,   in  Digest 
L.R.A.  1-10.) 

Negligence  in  permitting  crowd  on  platform 

as  question  for  jury,  see  Trial,  382. 
See  also  supra,  598. 

613.  A  carrier  is  liable  to  a  passenger  who 
is  himself  free  from  contributory  negligence, 
for  injuries  caused  by  his  being  struck, 
while  standing  on  the  step  of  a  moving  pas- 
senger car,  by  an  express  truck  which  was 
left  at  night  upon  an  unlighted  depot  plat- 
form, within  5  inches  of  such  passing  train, 
notwithstanding  the  truck  was  placed  in 
such  position  by  an  express  company  which 
was  permitted  to  use  the  platform  for  its 
own  purposes.  Irvin  v.  Missouri  P.  R.  Co. 
26:  739,  106  Pac.  1063,  81  Kan.  649. 

614.  A  railroad  company  is  not  bound  to 
use  the  utmost  care  and  foresight  to  pre- 
vent injuring  a  person  standing  on  its  plat- 
form waiting  to  take  a  train,  by  striking  an 
animal  on  the  track  with  an  engine  and 
throwing  it  against  him.  St.  Louis,  I.  M. 
&  S.  R.  Co.  V.  Woods,  33:  855,  131  S.  W. 
869,  96  Ark.  311.  (Annotated) 

615.  A  railroad  company  is  liable  for  in- 
juries to  a  passenger  who,  upon  his  arrival 
at  his  destination  in  the  depot  of  an  in- 
dependent terminal  company  used  by  the 
railroad  company,  went  to  the  baggage  plat- 
form and  there  sustained  injuries  through 
the  falling  of  a  trunk  from  a  pile  of  trunks 
negligently  left  piled  upon  the  platform  by 
the  employees  of  the  terminal  company, 
although  the  terminal  company  is  a  sepa- 
rate and  independent  corporation  engaged 
in  receiving  and  delivering  baggage,  and 
the  railroad  company  has  no  control  over 
the  employees  of  such  terminal  company, 
and  is  not  engaged  in  any  way  in  its  man- 
agement, and  the  terminal  company  is  not 
the  agent  or  servant  of  the  railroad  com- 
pany except  for  the  purpose  of  storing  and 
delivering  baggage  discharged  from  its 
train.  Johnson  v.  Florida  East  Coast  R. 
Co.  50:  561,  63  So.  713,  66  Fla.  415. 
Contributory   negligence. 

616.  A  passenger  on  a  railroad  train 
who  leaves  the  train  at  an  intermediate 
station  for  a  temporary  purpose  must  ex- 
ercise ordinary  care  in  crossing  the  sta- 
Digest  1-52  I..R.A.(N.S.) 


tion  platform  in  looking  upon  the  platform 
to  avoid  collision  with  any  object  usually 
or  necessarily  thereoa  which  may  impede 
his  progress  and  do  him  injury,  and  if 
without  any  suftieient  reason  he  neglects 
to  do  so  and  receives  injury  by  coming  in 
contact  with  such  an  obstruction  he  is 
guilty  of  contributory  negligence  and  can- 
not recover  damages  from  tiie  railroad 
company  for  the  injury.  VVetherla  v.  Mis- 
souri P.  R.  Co.  51:899,  136  Pac.  221,  90 
Kan.  702.  (Annotated) 

617.  A  passenger  is  guilty  of  contributory 
negligence  which  viU  bar  his  recovery  for 
injuries  received  by  a  fall  from  a  station 
platform,  where,  having  been  provided  by 
the  carrier  with  a  well-lighted  car  in  which 
to  await  the  arrival  of  his  train,  he  leaves 
it  on  a  very  dark  night  to  walk,  merely  for 
exercise,  on  an  unlighted  platform,  know- 
ing that  the  slope  of  the  land  is  such  that 
some  portions  of  the  platform  must  be  some 
distance  above  the  ground.  Abbot  v.  Ore- 
gon R.  &  Nav.  Co.  1:851,  80  Pac.  1012,  46 
Or.  549. 

3.  Duty  to  Tceep  open  and  light. 

(See  also  Carriers,  II.  a,  9,  0,  in  Digest 
L.R.A.  1-10.) 

Keeping  open. 

618.  Notice  to  a  railroad  station  agent 
that  a  woman  is  in  no  condition  to  face  a 
storm  is  sufficient  to  place  on  the  company 
the  risk  of  injury  in  forcing  her  to  do  so, 
although  the  nature  of  her  indisposition  is 
not  stated.  Texas  M.  R.  Co.  v.  Geraldon, 
29:  799,  128  S.  W.  611,  103  Tex.  402. 

619.  A  railroad  company  is  liable  for  in- 
jury to  a  woman  who  has  gone  to  its  depot 
to  take  passage  on  a  train,  by  the  act  of 
its  agent  in  turning  her  out  into  a  storm, 
with  notice  that  she  is  in  no  condition  to 
encounter  it,  although  the  reasonable  time 
fixed  by  the  company  for  closing  the  build- 
ing has  arrived.  Texas  M.  R.  Co.  v.  Geral- 
don, 29:  799,  128  S.  W,   611,  103  Tex.  402. 

( Annotated ) 

Lights. 

Effect  of  passenger's  contributory  negli- 
gence, see  supra,  351. 

Question  for  jury  as  to  time  to  keep  plat- 
form lighted'  see  Trial,  204. 

See  also  supra,  576,  600;   infra,  1082. 

620.  A  carrier  is  not  liable  for  injury  to 
one  who  goes  to  its  station  after  the  last 
train  has  passed  and  the  lights  are  out  for 
the  night,  to  inquire  for  freight,  and  falls 
from  an  unlighted  and  unguarded  platform. 
Sherman  v.  Maine  C.  R.  Co.  43:  1134,  85 
Atl.  755,  110  Me.  228.  (Annotated) 

621.  A  railroad  company  is  not  bound  to 
have  its  platforms  or  station  so  lighted  that 
all  passengers  attempting  to  leave  its  cars 
may  clearly  see  its  steps  and  platform ;  it 
being  sufficient  to  have  them  so  lighted  that 
the  ordinary  traveler  can  see  sufficiently  to 
alight  in  safety.  Illinois  C.  R.  Co.  v.  Cruse, 
8:  299,  96  S.  W.  821,  123  Ky.  46.3. 

622.  A  railroad  company  is  liable  fox  in- 


CARRIERS,  II.  m,  1. 


397 


jury  to  a  passenger  through  failure  to  light 
the  path  providing  egress  from  its  station 
sufficiently  to  enable  the  passenger  to  avoiil 
collision  with  a  train  on  an  adjoining  track. 
Powell  V.  Philadelphia  &  R.  R.  Co.  20:  1019, 
70  Atl.  268,  220  Pa.  638, 

m.  Tickets;  conditions;  fare. 

1.  In  general. 

(See  also  Carriers,  II.  a,  10,  a,  in  Digest 
L.R.A.  1-70.) 

Authority  of  ticket  agent  as  to,  see  supra, 
26-31,  34. 

Rules  and  regulations  as  to,  generally,  see 
supra,  47a-50. 

Provision  for  stopover,  see  supra,  458,  458a. 

Ejection  of  passenger  for  nonpayment  of 
fare  or  defective  ticket,  see  supra,  II. 
h,  2,  b. 

As  to  limitation  of  liabilitj',  see  infra,  II. 
m,  6,  o,  5. 

Tickets  over  connecting  lines,  see  infra, 
II.  q. 

Confining  sale  of  tickets  to  agents,  see  in- 
fra, 1000. 

Penalty  for  exacting  excessive  fare,  see 
infra,  1025-1027. 

Discrimination  between  passengers,  see  in- 
fra, 1059-1068. 

As  to  regulation  of  rates,  see  infra,  IV.  c. 

Due  process  in  prohibiting  transfer  of,  see 
Constitutional  Law,  504. 

Injunction  against  traffic  in  nontransferable 
railroad  tickets,  see  Contempt,  43-;  In- 
junction, 46. 

Burden  of  proving  amount  received  for 
transportation,  see  Evidence,  667. 

Proving  contract  by  parol  evidence,  see  Evi- 
dence, 923,  924. 

623.  The  inability  of  an  intending  pas- 
senger to  obtain  a  ticket  at  a  station  be- 
cause he  does  not  arrive  there  until  his 
train  is  in,  and  after  that  time  until  its 
departure,  the  agent  was  otherwise  en- 
gaged, does  not  entitle  him  to  use  upon  the 
train  scrip  which  he  has  purchased  from 
the  company  under  the  agreement  that  it 
shall  not  be  used  except  from  stations  where 
tickets  are  not  obtainable.  Kosminsky  v. 
Oregon  S.  L.  R.  Co.  24:  758,  104  Pac.  570,  36 
Utah,  454,  (Annotated) 

624.  A  mistake  of  a  sleeping  car  porter  in 
admitting  only  an  odd  number  of  persons 
to  the  car  at  a  station,  where  there  were 
seats  for  an  even  number,  does  not  entitle 
the  one  who  is  not  paired  to  secure  a  seat 
at  the  seat  rate,  rather  than  the  berth  rate, 
during  the  hours  when  seat  rates  are  not 
in  force,  although  the  party  desires  seats  on- 
ly, and  each  two  persons  occupying  a  single 
seat  are  charged  only  for  one  berth,  which 
gives  them  individually  the  seat  rate. 
Doherty  v.  Northern  P.  R.  Co.  36:  1139,  115 
Pac.  401,  43  Mont.  294. 

Digest  1-52  L.R.A.(N.S.) 


liimitations   in   tickets    generally. 

Reasonableness   of   provision   in   ticket,   see 

supra,  48-4Sb, 
Evidence  in   action   for   breach   of  contract 

for  transportation  contained  in  limited 

ticket,  see  Evu'Ence,  1951. 

625.  One  who  accepts  and  uses  a  railroad 
ticket  assents  to  its  terras  and  conditions 
as  fully  as  if  he  had  signed  it.  Brian  v, 
Oregon  Short  Line  R.  Co.  25:  459,  105  Pac. 
489,  40  Mont.  109. 

626.  In  determining  the  right  of  a  passen-' 
ger  to  travel  upon  a  railroad  ticket  ten- 
dered by  him  to  the  conductor  in  payment 
of  his  fare,  conclusive  force  is  to  be  given  to 
limitations  printed  upon  the  face  of  the 
ticket.  Shelton  v.  Erie  R.  Co.  (N.  J.  Err. 
&  App.)  9:727,  66  Atl.  403,  73  N.  J.  L. 
558. 

627,  One  accepting  a  coupon  ticket  to 
carry  him  over  several  railroads,  each  cou- 
pon of  which  provides  that  it  is  good  for 
one  continuous  passage,  merely  binds  him- 
self that,  when  he  once  begins  his  journey 
on  any  of  the  lines,  he  will  pursue  it  over 
that  road  continuously,  without  interrup- 
tion. Brian  v.  Oregon  Short  Line  R.  Co. 
25:  459,  105  Pac.  489,  40  Mont.  109. 
Limitations  as  to  time  of  nsing. 
Agreement  of  ticket  agent  as  to,  see  supra, 

26. 

Burden  of  showing  that  time  limitation  was 
so  phort  as  to  be  unreasonable,  see  Evi- 
dence, 529, 

See  also  supra,  424,  425;  infra,  734. 

628,  That  the  date  of  purchase  of  a  ticket 
is  not  plainly  stamped  upon  it  does  not 
afl"ect  a  provision  that  it  is  good  only  on 
date  of  sale,  and  the  conductor  may  refuse 
to  honor  it  on  a  future  day  if  it  carries 
intelligence  to  him  that  it  has  expired, 
Pennington  v.  Illinois  C.  R,  Co.  37:  983,  97 
N.  E.  289,  252  111.  584. 

629;  A  provision  in  a  limited  railroad 
ticket  that  it  is  good  for  ninety  days  from 
its  date,  not  to  be  later  than  a  date  speci- 
fied, prevails  over  the  time  limit  punched 
by  the  agent  upon  the  ticket.  Illinois  C.  R. 
Co.  V.  Gortikov,  14:  464,  45  So.  363,  90  Misa. 
787. 

630.  Merely  beginning  the  journey  before 
the  time  specified  on  the  ticket  is  not  suffi- 
cient where  a  railroad  ticket  provides  that 
it  will  not  be  accepted  unless  used  to  desti- 
nation before  midnight  of  a  specified  date. 
Brian  v.  Oregon  Short  Line  R.  Co.  25:  459, 
105  Pac.  489,  40  Mont.  109. 

Mileage    or   commutation   books. 
Ejection  of  passenger  off"ering  expired  com- 
mutation ticket,  see  supra,  423. 
See  also  supra,  31. 

631.  Forfeiture  of  a  twenty-trip  railroad 
ticket  by  permitting  its  use  by  others  con- 
trary to  the  contract  is  not  waived  by  the 
carrier's  subsequently  recognizing  the  right 
of  the  holder  to  ride  on  it  in  ignorance  of 
the  wrongful  use.  Baltimore  &  0.  S.  W. 
R.  Co.  V.  Evans,  14:  368,  82  N.  E.  773,  169 
Ind.  410. 


398 


CARRIERS,  II.  m,  2,  3. 


2.  Excursion  or  round  trip  tickets, 

(See  also  Carriers,  II.  a,  10,  b,  in  Digest 
L.R.A.  1-70.) 

See  also  supra,  431.^ 

632.  A  provision  of  a  railroad  ticket,  that 
it  shall  be  good  returning  until  the  date 
punched  on  the  margin,  is  not  affected  by  a 
provision  that  the  ticket  issued  on  an  ex- 
change order  from  an  intermediate  station 
to  destination  and  return  shall  be  good  for 
continuous  passages  only.  Cherry  v.  Chi- 
cago &  A.  R.  Co.  2:695,  90  S.  W.  381,  191 
Mo.  489. 

633.  Notice  to  railroads  represented  in  a 
passenger  association,  of  the  action  of  the 
roads  of  the  association  with  reference  to 
the  issuance  of  tickets  on  a  particular  oc- 
casion, will  justify  all  the  ticket  agents  of 
the  roads  to  act  under  it.  Cherry  v.  Chi- 
cago &  A.  R.  Co.  2:  695,  90  S.  W.  381,  191 
Mo.  489. 

634.  A  contract  with  a  passenger  as  to 
the  duration  of  his  ticket  cannot  be  affected 
by  the  failure  of  the  carrier  to  file  with  the 
Interstate  Commerce  Commission  its  accept- 
ance of  the  agreement  by  the  passenger  as- 
sociation to  establish  the  limit  named  there- 
in. Cherry  v.  Chicago  &  A.  R.  Co.  2:  695, 
90  S.  W.  381,  191  Mo.  489. 

635.  Authority  by  a  member  of  a  passen- 
ger association,  to  the  chairman,  to  Cast  its 
vote  with  the  majority,  upon  a  proposition 
as  to  duration  of  excursion  tickets  to  be 
issued  on  a  particular  occasion,  is  sufficient 
to  bind  it  by  the  action  taken,  without  the 
necessity  of  r.  subsequent  formal  accept- 
ance of  it.  Cherry  v.  Chicago  &  A.  R.  Co. 
2:  695,  90  S.  W.  381,  191  Mo.  489. 

636.  A  passenger  traveling  on  a  limited 
return-trip  ticket  is  not  bound  by  the  mis- 
takes of  the  agent  who  issued  the  ticket  in 
punching  the  description  of  the  buyer  and 
the  time  limit  upon  it.  Illinois  C.  R.  Co.  v. 
Gortikov,  14:  464,  45  So.  363,  90  Miss.  787. 

3.  Pas.se8. 

(See  also  Carriers,  II.  a,  10,  c,  in  Digest 
L.R.A.  1-70.) 

Persons  riding  free  as  passengers,  see  su- 
pra, 69-73. 

Injury  to  person  riding  on  stock  pass,  se'e 
supra,  324,   327.  '• 

Right  to  issue  pass,  see  infra,  1059,  1061- 
1065,  1067,  1068.. 

Appeal  in  action  for  injury  to  passenger 
carried  gratuitously,  see  Appeal  and 
Erbob,  515. 

Prejudicial  error  in  defining  gross  negli- 
gence, see  Appeal  and  Error,  1346. 

Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  367,  791. 

Effect  of  statute  invalidating  contract  to 
give  passes,  see  Contracts,  633,  634, 
766. 

Prohibiting  officer  from  riding  on  free  pass, 
see  Officers,  83. 
-Digest  1-52  I..R.A.(N.S.) 


Departure  from  pleading  in  case  of  injury 
to  gratuitous  passenger,  see  Pleading, 
83. 

637.  Where  by  statute  a  carrier  is  re- 
quired to  transport  a  gratuitous  passenger 
which  it  has  accepted,  one  is  not  prevented 
from  holding  the  carrier  liable  for  injury 
to  him  by  failure  to  use  the  care  which  the 
law  requires  in  case  of  gratuitous  passen- 
gers, by  the  fact  that  he  was  traveling  on 
a  pass  which  the  carrier  was  prohibited, 
under  penalty,  from  giving.  John  v.  North- 
ern P.  R.  Co.  32:85,  111  Pac.  632,  42  Mont. 
18. 

638.  An  employee  in  the  railway  mail 
service  who,  in  good  faith  and  with  the 
consent  of  the  carrier,  accepts  when  off 
duty  a  free  passage  in  interstate  trans- 
portation, does  not  forfeit  his  right  to  the 
benefit  of  a  rule  of  the  local  law  which 
charges  a  carrier  with  the  duty  to  exer- 
cise care  for  the  safety  of  gratuitous  pas- 
sengers because  his  gratuitous  carriage  may 
have  been  forbidden  by  the  Hepburn  act  of 
June  29,  1906,  since  tliat  statute  itself  fixed 
the  penalty  for  violations  of  its  prohibitions 
by  declaring  that  the  carrier  and  passenger 
shall,  in  such  cases,  be  deemed  guilty  of  a 
misdemeanor  punishable  by  fine.  Southern 
P.  Co.  V.  Schuyler,  43:  901,  33  Sup.  Ct.  Rep. 
277,  227  U.  S.  601,  57  L.  ed.  662. 

( Annotated ) 

639.  The  possibility  that  the  presence  of 
police  officers  on  street  cars  may  tend  to  pre- 
serve peace  and  good  order  is  not  sufficient 
to  constitute  a  valuable  consideration  for  a 
pass,  given  by  the  carrier  to  such  officer. 
Marshall  v.  Nashville  R.  &  Light  Co.  9: 
1246,  101  S.  W.  419,  118  Tenn.  254. 
Iiimitation  of  liability  in. 
Limitation  of  liability  generally,  see  infra, 

II.  m,  6. 

640.  Wilful,  reckless,  or  wanton  neglect  is 
necessary  to  render  a  carrier  liable  for  in- 
juries to  a  person  riding  upon  a  pass  in 
which  he  assumes  the  risk  of  injury.  Mar- 
shall v.  Nashville  R.  &  Light  Co.  9:  1246, 
101   S.  W.  419,  118  Tenn.  254. 

641.  That  a  carrier  reserves  the  right  to 
recall  at  any  time  the  ticket  furnished  an 
employee  as  evidence  of  his  right  to  free 
transportation  upon  the  carrier's  cars  in 
going  to  and  from  work  does  not  render 
the  right  a  mere  privilege  which  entitles 
the  carrier  to  limit  his  liability  for  in- 
juries if  the  ticket  does  not  constitute  the 
contract.  Klinck  v.  Chicago  City  R.  Co. 
52:  70,  104  N.  E.  669,  262  111.  280. 
Conditions  in  pass  held  liy  caretaker 

of  stock. 

642.  The  conditions  in  a  free  pass  grant' 
ed  by  a  carrier  to  one  to  permit  him  to  ac- 
company a  shipment  of  stock,  requiring  him 
to  remain  in  a  safe  place  in  the  caboose  at- 
tached to  the  train  while  it  is  in  motion,  to 
get  on  and  off  the  caboose  only  while  the 
train  is  stationary,  and  not  to  get  on  or  be 
on  any  freight  car  at  any  time,  are  reason- 
able, and  not  in  contravention  of  law  or  pub- 
lic policy.  Leslie  v.  Atchison,  T.  &  S.  F.  R. 
Co.  27:  646,  107  Pac.  765,  82  Kan.  152. 


CARRIERS,  II.  m,  4,  5. 


399 


643.  The  conductor  of  a  stock  train  waives 
the  provisions  of  the  contract  of  one  usiiig 
free  transportation  to  accompany  his  stocl^:, 
requiring  the  shipper  to  get  on  and  off  the 
caboose  only  while  the  train  is  stationary, 
and  not  to  get  on  or  be  on  any  freight  car 
at  any  time,  by  telling  the  shipper,  who  had 
completed  an  examination  of  the  stock  just 
as  the  train  started,  and  was  walking  to- 
ward the  caboose,  that  he  had  better  get  on, 
as  the  train  would  be  going  too  fast  by  the 
time  the  caboose,  which  was  some  twenty 
cars  to  the  rear,  reached  him,  so  as  to  give 
the  shipper  the  rights  of  a  passenger,  and 
render  the  carrier  liable  for  injuries  re- 
ceived by  the  shipper  by  being  raked  from 
the  side  of  a  freight  car  by  a  water  crane 
while  complying  with  the  conductor's  invi- 
tation. Leslie  v.  Atchison,  T.  &  S.  F.  R. 
Co.  27:  646,  107  Pac.  765,  82  Kan.  152. 

(Annotated) 

4.  Extra  fare. 

(See  also  Carriers,  II.  a,  10,  d,  in  Digest 
L.R.A.  1-70.) 

See  also  supra,  426,  427,  438, 

644.  A  railroad  company  may  run  trains 
composed  exclusively  of  Pullman  sleepers, 
for  accommodations,  upon  which  extra  com- 
pensation is  required,  and  expel  passengers 
who  refuse  to  pay  it,  if  the  demands  of 
business  require  it  and  it  has  made  pro- 
vision to  accommodate  the  public  by  other 
trains  running  at  reasonable  intervals. 
Doherty  v,  Northern  P.  R.  Co.  36:  11 39,  llo 
Pac.  401,  43  Mont.  294.  (Annotated) 

5.   On  street  cars. 

(See  also  Carriers,  II.  a,  10,  e,  in  Digest 
L.R.A.  1-70.) 

Governmental  regulation  of  rates,  see  infra, 

IV.  c,  2. 
Definiteness   of   promise   by   street   railway 

company  to  maintain  special  rate,  see 

Contracts,  156. 

Automatic   collector. 

645.  A  street  railway  company  may  re- 
quire persons  to  insert  the  coin  represent- 
ing their  fare  into  an  automatic  collector 
brought  to  them  by  the  conductor,  where 
it  offers  to  furnish  them  with  the  proper 
coin  in  exchange  for  the  money  with  which 
they  may  be  provided.  Martin  v.  Rhode  Is- 
land Co.  32:  695,  78  Atl.  548,  32  R.  I.  162. 

(Annotated) 

646.  Charter  limitation  of  a  street  car 
company  to  5  cents,  and  no  more,  for  a 
single  fare,  does  not  prevent  its  requiring 
a  passenger  to  place  the  fare  in  an  auto- 
matic collector  brought  to  him  by  the  con- 
ductor. Martin  v.  Rhode  Island  Co.  32: 
695,  78  Atl.  548,  32  R.  I.  162. 

647.  Refusal  to  accept  pennies  in  pay- 
ment of  street  car  fare,  except  on  condition 
of  taking  from  the  conductor  a  5-cent  piece 
and  depositing  it  in  an  automatic  coin 
Digest  1-52  Ii.R.A.(N.S.) 


1  collector,  is  not  a  violation  of  the  Federal 
I  legal    tender    law,   which   makes   pennies   a 

legal    tender    to    the    amount    of    25    cents. 

Martin  v.  Rhode  Island  Co.  32:  695,  78  Atl. 

548,  32  R.  I.  162. 

Change. 

See  also  supra,   414. 

648.  A  street  car  company  may  lawfully 
require  passengers  to  present  in  payment  of 
fare  a  bill  or  coin  not  exceeding  $5  in  value. 
Knoxville  Traction  Co.  v.  Wilkerson,  9:  579, 
99  S.  W.  992,  117  Tenn.  482. 

649.  The  publication  of  a  rule  requiring 
street-car  passengers  to  present  money  in 
payment  of  fare  in  bills  or  coins  of  less  than 
$5  in  value  is  not  necessary  in  order  to  be 
binding  on  passengers,  since  the  public  are 
charged  with  notice  of  its  necessity.  Knox- 
ville Traction  Co.  v.  Wilkerson,  9:  579,  99  S. 
W.  992,  117  Tenn.  482. 

650.  An  electric  railway  company  is  not 
bound  to  furnish  change  for  every  bill  ten- 
dered in  payment  of  fare.  Funderburg  v. 
Augusta  &  A.  R.  Co.  21:  868,  61  S.  E.  1075, 
81  S.  C.  141. 

651.  That  conductors  on  electric  cars 
have  customarily  changed  bills  of  large  de- 
nominations when  tendered  in  payment  of 
small  fares  whenever  they  had  plenty  of 
change  does  not  render  one  guilty  of  a 
breach  of  duty  to  a  particular  passenger  in 
refusing  to  change  such  bill  when  he  did  not 
have  change  enough  to  permit  him  to  do  so 
and  retain  enough  change  for  the  reasona- 
ble requirements  of  the  trip.  Funderburg 
V.  Augusta  &  A.  R.  Co.  21:  868,  61  S.  E. 
1075,  81  S.  C.  141. 

652.  That  a  conductor  on  an  electric  car 
has  more  than  $5  in  change  when  a  $5  bill 
is  tendered  him  in  payment  of  a  5-cent  fare 
does  not  render  his  refusal  to  change  the 
bill  unreasonable.  P'underburg  v.  Augusta 
&  A.  R.  Co.  21:  868,  61  S.  E.  1075,  81  S.  C, 
141.  M|fi.|  ■  (Annotated) 
Transfers.         '    "    ^ 

Making  violation  of  rules  as  to,  a  crime,  see 

Constitutional  Law,  76. 
Sufficiency  of  evidence  to  establish  custom 

of  street  railway  as  to,  see  Evidence, 

2326. 
See  also  supra,  47,  51,  149,  412,  413,  417, 

421,  422. 

653.  A  condition  on  a  transfer  issued  by 
a  street  railway  company  that  "the  holder, 
by  accepting,  agrees  that,  should  any  con- 
troversy arise  as  to  its  validity,  holder  will 
pay  fare  and  call  at  company's  office  for 
correction,"  is  unreasonable  and  void. 
Georgia  R.  &  E.  Co.  v.  Baker,  7:  103,  54  S. 
E.  639,  125  Ga.  562. 

654.  One  accepting  a  street-car  transfer 
check  which  states  on  its  face  that  the 
transfer  is  to  be  made  at  a  certain  point 
has  no  right  to  attempt  to  make  the  trans- 
fer before  such  point  is  reached,  although 
the  cars  from  and  to  which  the  transfer  is 
to  be  made  run  to  the  transfer  point  over 
the  same  track.  Shortsleeves  v.  Capital 
Traction  Co.  8:  287,  28  App.  D.  C.  365. 

655.  A  street-car  conductor  is  bound  at 
his  peril  to  determine  whether  a  passenger 
presenting  a  transfer  is  entitled  to  ride  upon 


400 


CARRIERS,  II.  m,  6. 


it,  notwithstanding  it  does  not,  upon  its  face, 
show  such  right,  where  tlie  passenger  gives 
a  reasonable  explanation  of  the  mistake 
made  by  the  conductor  who  issued  it.  Geor- 
gia R.  &  E.  Co.  V.  Baker,  7:  103,  54  S.  E. 
639,  125  Ga.  562. 

656.  The  voluntary  offer  of  a  street  rail- 
way company  to  issue  a  transfer  giving  the 
right  to  ride  on  other  cars  of  its  lines,  when 
accepted,  completes  a  contract  the  consider- 
ation for  which  is  the  amount  paid  to  the 
conductor  issuing  it  and  the  right  to  ride 
on  the  car  to  which  the  passenger  is  trans- 
ferred is  in  no  sense  a  gratuity.  Georgia  K. 
&  E.  Co.  V.  Baker,  7;  103,  54  S.  E.  639,  125 
Ga.  562. 

657.  A  threat  by  a  street  car  conductor  to 
expel  a  passenger  on  account  of  a  mistake 
in  the  transfer  slip  presented  by  him  is  a 
legal  wrong  giving  the  passenger  a  right  of 
action  against  the  company,  although  there  is 
nothing  insulting  in  the  words  or  manner  of 
the  conductor,  further  than  a  mere  threat 
to  expel  might  be  deemed  an  insult.  Georgia 
R.  &  E.  Co.  V.  Baker,  7:  103,  54  S.  E.  639, 
125  Ga.  562. 

658.  Entirely  distinct  lines  of  street  rail- 
way originally  constructed  and  operated  by 
difi'erent  companies  and  brought  into  phys- 
ical relation  to  each  other  by  a  third  line 
connecting  them  do  not,  although  the  three 
lines  have  by  leases  and  contracts  come  into 
possession  of  one  company,  which  is  operat- 
ing them  as  a  single  system,  constitute  a 
road  and  connecting  branches  thereof,  or  a 
main  line  of  road  and  any  branch  or  exten- 
sion thereof,  within  the  meaning  of  a  stat- 
ute requiring  a  street  railway  company  to 
charge  only  one  fare  for  transporting  a  pas- 
senger over  such  road  and  branch  within  a 
city.  Bull  V.  New  York  C.  R.  Co.  19:  778, 
85  N.  E.  385,  192  N.  Y.  361. 

659.  An  attorney  traveling  over  a  street 
railway  simply  for  the  purpose  of  ascertain- 
ing whether  or  not  a  transfer  will  be  given 
him  at  a  certain  point  as  required  by  stat- 
ute, which  information  he  desires  for  the 
benefit  of  suits  already  commenced  on  be- 
half of  clients  for  the  statutory  penalty  for 
refusal  to  give  them  transfers,  is  not  enti- 
tled to  bring  an  action  for  the  statutory 
penalty  because  of  the  refusal  to  give  him 
one,  where  the  statute  requires  the  carrying 
of  passengers  desiring  to  make  a  continuous 
trip  between  certain  points  for  one  fare,  and 
imposes  a  forfeiture  to  the  person  aggrieved 
by  refusal  to  issue  the  necessary  transfer. 
Bull  v.  New  York  C.  R.  Co.  19:  778,  85  N. 
E.  385,  192  N.  Y.  361. 

660.  That  an  independent  corporation 
has  acquired  control  of  two  competing  street 
railway  companies,  and  operates  both  by 
one  set  of  oflRcers,  having  formed  a  physical 
connection  between  the  two,  and  uses  the 
cars  of  each  upon  the  tracks  of  the  other, 
and  that  it  keeps  the  accounts  in  one  of- 
fice, and  does  all  repairing  at  one  shop, 
does  not,  while  the  accounts  are  kept  sep- 
arate, require  th*  owner  of  one  of  the 
roads  to  issue  transfers  over  the  other, 
under  its  contract  with  the  city  to  grant 
such  transfers  over  any  line  which  shall 
Digest  1-52  I..R.A.(»'.S.) 


be  operated  or  controlled  by  it.  State  ex 
rel.  Tacoma  v.  Tacoma  R.  &  Power  Co.  32: 
720,  112  Pac.  506,  61  Wash.  507. 

(Annotated) 

6.  Limitation  of  liability. 

(See  also  Carriers,  II.  a,  10,  f,  in  Digest 
L.R.A.  1-10.) 

Limitation  as  to  time  of  using  ticket,  see 
supra,  628-630. 

In  passes,  see  supra,  640-643. 

As  to  baggage,  see  infra,  II.  o,  5. 

As  to  freight,  see  infra.  III.  g. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  53,  54. 

Notice  to  express  messenger  that  contract 
under  which  he  is  carried  absolves  car- 
rier from  liability  for  injuring  him,  see 
Notice,  19. 

Effect  on  carrier's  liability  of  release  of  ex- 
press company  by  manager  from  lia- 
bility for  personal  injuries,  see  Re- 
lease, 9. 

Of  vessel  owner,  see  Shipping,  I. 

661.  A  statute  providing  that  a  common 
carrier  cannot  be  exonerated  by  an  agree- 
ment made  in  anticipation  thereof,  from 
liability  for  gross  negligence,  applies  in 
favor  of  passengers  who  are  carried  with- 
out consideration.  Walther  v.  Southern 
Pacific  Co.  37:  235,  116  Pac.  51,  159  Cal. 
769. 

662.  A  railroad  company,  in  contracting 
for  the  moving  ot  a  circus  train  over  its 
road,  may  contract  for  freedom  from  lia- 
bility for  injury  to  person  or  property  car- 
ried under  the  contract,  no  matter  how 
caused.  Clough  v.  Grand  Trunk  W.  R.  Co. 
11:  446,  155  Fed.  81,  85  C.  C.  A.  1. 
Reduced   fare. 

663.  Carrying  a  passenger  at  a  reduced 
fare  i_oes  not  entitle  a  railroad  company  to 
stipulate  for  an  exemption  from  liability 
for  negligently  injuring  him.  Pittsburgh, 
C.  C.  &  St.  L,  R.  Co.  v.  Higgs,  4:  1081,  76 
N.  E.  299,  165  Ind.  694.  (Annotated) 
Employee  of  sleeping  car. 
Consideration  of  contract,  see  Contracts, 

89. 
See   also   Master   and   Servant,    18;    Re- 
lease, 10. 

664.  A  contract  by  one  employed  as  por- 
ter on  a  sleeping  car  to  release  railroad 
companies,  which  may  haul  such  car,  from 
liability  for  injuries  which  may  result  to 
him  from  their  negligence,  is  valid.  Chicago, 
R.  I.  &  P.  R.  Co.  V.  Hamler,  i :  674,  74  N.  E. 
705,  215  111.  525. 

665.  That  no  express  contract  between  a 
railroad  and  sleeping  car  company  is  shown 
does  not  prevent  the  railroad  company  from 
taking  the  benefit  of  a  provision  in  a  con- 
tract between  the  sleeping  car  company 
and  its  employees  releasing  railroad  com- 
panies over  whose  tracks  the  cars  are  drawn 
from  liability  for  negligent  injuries  to  such 
employees.  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Hamler,  i :  674,  74  N.  E.  705,  215  111.  525. 


CARRIERS,  II.  n,  o,   1. 


401 


666.  A  constitutional  provision  making 
void  a  contract  by  an  employee  releasing  his 
employer  from  liability  for  a  negligent  in- 
jury does  not  apply  to  a  contract  between 
a  railroad  and  a  sleeping  car  company  ex- 
empting the  former  from  liability  to  em- 
ployees of  the  latter.  Denver  &  R.  G.  R. 
Co.  V.  Whan,  ii:  432,  89  Pac.  39,  39  Colo. 
230. 

667.  A  railroad  company  hauling  cars  of 
a  sleeping  car  company  may  take  advantage 
of  a  provision  in  a  contract  between  the 
sleeping  car  company  and  its  employees  by 
which  they  agree  to  release  railroad  com- 
panies hauling  the  cars  from  all  claims  for 
liability  of  any  nature  on  account  of  per- 
sonal injury  while  traveling  over  the  lines 
in  the  course  of  their  employment.  Denver 
&  R.  G.  R.  Co.  V.  Whan,  11:  432,  89  Pac.  39, 
39  Colo.  230. 

668.  A  railroad  company  may  contract 
for  exemption  from  liability  for  negligent 
injuries  to  conductors  in  charge  of  the 
sleeping  cars  of  other  corporations  attached 
to  its  trains.  Denver  &  R.  G.  R.  Co.  v. 
Whan,  II :  432,  89  Pac.  39,  39  Colo.  230. 

( Annotated ) 

669.  A  railroad  company,  though  not 
bound  to  attach  Pullman  cars  to  its  pas- 
senger trains,  except  as  it  may  contract  to 
do  so,  is,  nevertheless,  acting  in  its  capacity 
of  common  carrier  in  so  doing;  and  so  can- 
not by  contract  exempt  itself  from  liability 
to  persons  employed  on  such  cars  for  its 
negligence  or  that  of  its  servants.  Coleman 
V.  Pennsylvania  R.  Co.  50:  432,  89  Atl.  87, 
242  Pa.  304.  (Annotated) 
Shipper  of  stock. 

See  also  supra,  83. 

670.  A  carrier  cannot  exempt  itself  from 
liability  for  negligent  injuries  to  one  whom 
it  has  undertaken  to  transport  to  look  after 
stock  which  it  is  carrying  for  hire.  Blatch- 
er  v.  Philadelphia,  B.  &  W.  R.  Co.  16:  991, 
31  App.  D.  C.  385. 


n.    Blackboard 


announcetnenta 
trains. 


as    to 


(See  Carriers,  II. 
1-10.) 


a,  11,  in  Digest  L.R.A. 


o.   Baggage   or  property   of  passenger. 


1.  In  general. 


(See  also  Carriers,  II. 
L.R.A.  1-10.) 


a,  12,  a,  in  Digest 


Power  of  agent  as  to,  see  supra,  32,  33. 
Injury  to  passenger  by  fall  of  baggage  from 

rack,  see  supra,  204,  205,  252. 
Injury  to  passenger  by  falling  over  valise  in 

aisle,  see  supra,  206, 
Duty   to   maintain   safe   place   for   delivery 

of    baggage    to    passengers,    see   supra, 

583. 
Injury  to  passenger  on  baggage  platform  by 

fall  of  trunk,  see  supra,  615. 
Carriage   of  baggage   as   freight,   see   infra, 

842. 
Digest  1-52  I..R.A.(N.S.)  26 


Granting  of  exclusive  privilege  to  solicit, 
see  infra,   1007-1013. 

Requiring  carrier  to  provide  baggage  room, 
see  infra,  1082. 

As  to  corpse,  see  infra,  II.  p. 

EflFect  of  settling  action  for  loss  of,  see  Ac- 
tion OB  Suit,  105. 

Error  in  reception  of  evidence  as  to  custom 
in  regard  to  checking  baggage,  see  Ap- 
peal AND  Ereob,  1113. 

Punitive  damages  for  refusal  to  carry,  see 
Damages,  99. 

Measure  of  damages  for  loss  or  delay  of 
baggage,  see  Damages,  296-301. 

Damages  for  mental  anguish  because  of  loss 
of,  see  Damages,  621. 

Double  damages  in  case  of  loss  of,  see  Dam- 
ages, 732. 

Presumption  from  loss  of  passenger's  bag- 
gage, see  Evidence,  360,  374-378. 

Testimony  by  passenger  as  to  value  of  bag- 
gage lost,  see  Evidence,  1118. 

Sufficiency  of  evidence  to  show  negligence, 
see  Evidence,  2150,  2151. 

Right  of  action  for  loss  of  wife's  baggage, 
see  Husband  and  Wife,  157. 

Larceny  of   baggage,   see  Larceny,   29,   30. 

Father's  right  to  recover  for  loss  of,  see 
Parent  and  Child,  9. 

Joinder  of  causes  of  action  as  to,  see  Par- 
ties, 146. 

Pleading  in  action  for  loss  of  baggage,  see 
Pleading,  268. 

Proximate  cause  of  loss  of  baggage,  see 
Proximate  Cause,  78. 

Question  for  jury  whether  company  receives 
baggage  as  carrier  or  warehouseman, 
see  Trial,  234. 

Instruction  as  to  damages  in  action  by 
salesman  for  failure  to  transport  bag- 
gage, see  Trial,  1005. 

671.  The  contract  of  a  railroad  company 
to  transport  a  passenger  carries  with  it  the 
duty  of  transporting  a  reasonable  amount 
of  hand  baggage,  such  as  is  customarily 
taken  by  travelers  for  their  personal  use. 
Hasbrouck  v.  New  York  C.  &  H.  R.  R.  Co. 
35:  537,  95  N.  E.  808,  202  N.  Y.  363. 

672.  The  mere  fact  that  articles  tendered 
by  a  passenger  for  transportation  as  bag- 
gage are  packed  in  a  basket  does  not  charge 
the  carrier  with  notice  of  their  character, 
so  as  to  charge  it  with  liability  for  their 
loss  as  baggage  in  case  they  are  not  prop- 
erly checked.  St.  Louis,  I.  M.  &  S.  R.  Co. 
V.  Miller,  39:  634,  145  S.  W.  889,  103  Ark. 
37. 

673.  A  passenger  who  delivers  his  trunk 
to  the  baggageman  at  a  railway  station  in 
proper  season  has  the  right  to  require  that 
it  shall  be  carried  on  the  same  train  which 
he  takes.  Conheim  v.  Chicago  G.  W.  R.  Co. 
17:  1091,  116  N.  W.  581,  104  Minn.  312. 

( Annotated ) 

674.  A  carrier  to  whose  trainman  a  suit 
case  is  delivered  to  be  carried  from  the 
train  is  bound  to  explain  the  loss  of  arti- 
cles therefrorti  while  in  his  possession,  or 
answer  for  their  value,  and  it  cannot  es- 
cape liability  by  showing  that  they  were 
taken  by  the  trainman  himself.     Hasbrouck 


402 


CARRIERS,  II.  o,  1. 


V.  New  York  C.  &  H.  R.  R.  Co.  35:  537,  95 
N.  E.  808,  202  N.   Y.  363. 

675.  A  railroad  company  is  not  relieved 
from  liability  for  loss  of  the  baggage  of  a 
passenger  upon  its  train  by  the  fact  that, 
at  the  time  of  loss,  he  occupied  space  in  a 
sleeping  car  which  belonged  to  another  com- 
pany, if  the  car  was  in  fact  a  part  of  its 
train,  and  was  employed  by  it  in  perform- 
ing its  contract  of  transportation.  Nelson 
V.  Illinois  C.  R.  Co.  31 :  689,  53  So.  619,  98 
Miss.  295. 

Baggage    nnaccompaiiied    by    passen- 
ger. 

676.  Where  a  mileage  ticket  contains  a 
provision  that  baggage  will  Jje  transported 
"only  over  such  lines  and  between  such  sta- 
tions as  purchaser  of  this  ticket  will  travel 
on  date  baggage  is  presented  for  checking," 
and  the  purchaser  of  the  ticket  intentionally 
fails  to  travel  on  the  same  day  with  his  bag- 
gage, but  goes  to  his  destination  by  another 
route,  and  the  baggage  is  lost,  the  liability 
of  the  carrier  is  that  of  a  gratuitous  bailee. 
Southern  R.  Co.  v.  Dinkins  &  D.  Hardware 
Co.  43:  806,  77  S.  E.  147,  139  Ga.  332. 

(Annotated) 

677.  If  a  passenger,  on  finding  no  trains 
running  over  a  section  of  road  designated 
by  his  ticket,  takes  a  roundabout  way  to 
his  destination,  and  then  telegraphs  the  car- 
rier to  forward  his  baggage  with  storage  and 
transportation  charges,  the  carrier,  in  obey- 
ing the  order,  acts  as  a  carrier  of  goods  for 
hire,  and  not  as  a  carrier  of  passenger's 
baggage.  Hicks  v.  Wabash  R.  Co.  8:  235, 
108  N.  W.  534,  131  Iowa,  295. 

678.  The  fact  that  one  who  purchased  a 
ticket  and  checked  baggage  thereon  did  not 
use  the  ticket,  or  did  not  intend  to,  does  not 
render  the  carrier  a  gratuitous  bailee  of  the 
baggage,  liable  only  for  gross  negligence. 
Alabama  G.  S.  R.  Co.  v.  Knox,  49:  411,  63 
So.  538,  184  Ala.  485. 

679.  A  railroad  carrier  is  not,  as  a  mat- 
ter of  law,  liable  only  as  a  gratuitous 
bailee  of  baggage  regularly  checked  and  aft- 
erwards destroyed  by  fire  while  in  its  sta- 
tion house,  although  the  passenger  did  not 
go  on  the  same  train  with  the  baggage.  Mc- 
Kibbin  v.  Wisconsin  C.  R.  Co.  8:  489,  110 
N.  W.  964,  100  Minn.  270. 
Contributory   negligence. 

680.  The  owner  of  a  suit  case  which  she 
has  delivered  into  the  hands  of  a  train- 
man, to  be  carried  from  the  train,  upon 
his  announcement  that  the  train  is  ap- 
proaching her  station,  is  not  negligent  in 
failing  to  seek  him  out  and  take  it  from 
his  possession  when  ten  or  fifteen  minutes 
elapse  before  the  train  stops,  so  as  to  re- 
lieve the  railroad  company  from  liability 
for  loss  of  articles  therefrom.  Hasbrouck 
V.  New  York  C.  &  H.  R.  R.  Co.  35:  537, 
95  N.  E.  808,  202  N.  Y.  363. 

681.  That  a  passenger  was  negligent  in 
delivering  an  unlocked  suit  case  containing 
valuables  into  the  possession  of  a  train- 
man, to  be  carried  from  the.  train,  is  im- 
material to  the  question  of  the  carrier's 
liability  for  their  loss,  in  the  absence  of 
any  explanation  on  its  part  as  to  how  the 
Digest  1-52  I<.It.A.(N.S.) 


loss  occurred.     Hasbrouck  v.  New  York  C. 
&  H.  R.  R.   Co.  35:  537,  95  N.  E.  808,  202 
N.  Y.  363. 
Baggage    transfer    company. 

682.  One  engaged  in  transferring  baggage 
for  hire  is  not  within  the  protection  of  a 
public-service  law  making  every  common 
carrier  and  railroad  company  liable  for  loss, 
damage,  and  injury  to  property  carried  as 
baggage,  to  the  full  value  thereof,  but  re- 
quiring value  over  a  certain  amount  to 
be  stated  and  extra  compensation  paid  for 
the  extra  risk,  since  the  word  "baggage"  re- 
fers to  property  transported  as  an  incident 
to  the  transportation  of  the  owner  as  a 
passenger.  Morgan  v.  W^oolverton,  36:640, 
96  N.  E.  354,  203  N.  Y.  52. 

Street    railuray    company. 

What  constitutes  baggage,  see  infra,  710. 

683.  A  street  railway  company  does  not 
in  the  absence  of  a  general  undertaking  or 
liability  as  common  carrier  of  baggage,  or 
of  special  contract,  assume  such  liability  be- 
cause its  conductor  takes  the  suit  case  of 
a  passenger  who  enters  the  car,  and  carries 
and  deposits  it  near  the  seat  occupied  by 
the  passenger.  Sperrv  v.  Consolidated  R. 
Co.  10:  907,  65  Atl.  962,  79  Conn.  565. 

684.  Negligence  on  the  part  of  a  street 
car  conductor  who  carries  a  passenger's  bag- 
gage into  the  car  and  deposits  it  near  the 
passenger  is  not  shown  by  his  failure  to 
notify  the  conductor  relieving  him  that  the 
baggage  belongs  to  the  passenger;  nor  is 
there  negligence  on  the  part  of  the  latter 
in  permitting  the  baggage  to  be  taken  from 
the  car  by  a  man  of  ordinarily  respectable 
appearance,  who  is  seated  near  it.  Sperry 
V.  Consolidated  R.  Co.  10:  907,  65  Atl.  962, 
79   Conn.   565. 

Liability  of  connecting  line. 

Statute  as  to  liability  for  loss  of  baggage 

on  interstate  railroad,  see  Comsierce, 

80. 

685.  Delivery  of  a  carrier's  baggage  check 
for  a  trunk  which  is  at  a  union  station  to 
the  agent  of  another  company  at  a  way  sta- 
tion on  its  line,  who  agrees  to  procure  and 
forward  it,  is  not  a  constructive  delivery  of 
the  trunk  to  the  second  carrier,  so  as  to 
make  it  liable  for  the  subsequent  loss  of  the 
baggage  while  still  in  the  union  station, 
there  being  nothing  to  show  that  the  agent 
had  authority  to  make  the  agreement. 
Southern  R.  Co.  v.  Bickley,  McC.  &  Co.  14: 
859,  107  S.  W.  680,  119  Tenn.  528. 

(Annotated) 

686.  A  carrier  which  receives  at  a  junc- 
tion point  a  trunk  checked  on  a  through 
ticket  by  another  carrier  with  which  it  has 
no  partnership  relations,  and  carries  it 
to  destination  after  the  passenger,  because 
of  the  lateness  of  his  train,  has  turned  back 
to  his  starting  point,  is  not,  where  by  stat- 
ute the  unused  portion  of  his  ticket  must 
be  redeemed,  so  that  it  will  receive  no  com- 
pensation for  its  services,  liable  for  the 
theft  of  articles  from  the  trunk  while  in 
its  possession,  in  the  absence  of  proof  of 
gross  negligence  on  its  part,  although  it 
deposits  the  trunk  in  its  station  when  des- 


CARRIERS,  II.  o,  2. 


403 


tination  is  reached.  Kindley  v.  Seaboard 
Air  Line  R.  Co.  24:  634,  65  S.  E.  897,  151  N. 
C.   207. 

687.  A  railroad  company  which  sells  a  re- 
turn ticket  good  for  continuous  passage  ov- 
er its  own  and  connecting  lines  is  liable  for 
loss  of  baggage  on  the  return  trip,  due  to 
the  carrier  at  the  intermediate  terminal 
failing,  without  notifying  the  owner,  to 
check  beyond  its  own  line,  although  the  con- 
tract expressly  states  that  the  initial  carri- 
er assumes  no  responsibility  beyond  its  own 
line.  Gcmra  v.  Oregon  R.  &  Nav.  Co.  25: 
537,  101  Pac.  361,  52  Wash.  685. 

Xioss   of  property  in  check  room. 
Question    for    jury    as    to    negligence,    see 

Trial,  557. 
See  also  infra,  732. 

688.  The  owner  of  property  lost  while  in 
a  railroad  check  room  is  not  bound  to  show 
negligence  on  the  part  of  the  railroad  com- 
pany to  be  entitled  to  hold  it  liable  for  the 
loss.  Terry  v.  Southern  R.  Co.  18:  295,  62 
S.  E.  249,  81  S.  C.  279.  (Annotated) 

689.  That  a  railroad  company  charges 
only  a  nominal  fee  for  checking  parcels  of 
intending  passengers  for  safe-keeping  until 
called  for  does  not  render  it  a  mere  gratui- 
tous bailee,  but  it  is  bound  to  exercise  or- 
dinary care,  and  is  liable  for  ordinary  neg- 
ligence. Fraara  v.  Grand  Rapids  &  I.  R. 
Co.  29:  834,  126  N.  W.  851,  161  Mich.  556. 

(Annotated) 

690.  When  one,  in  accordance  with  a 
posted  notice  as  to  charges  on  baggage  re- 
maining at  the  station,  checks  his  hand 
baggage  to  be  cared  for,  the  carrier  be- 
comes a  bailee  for  hire,  and  its  liability  in 
case  of  loss  of  the  baggage  is  governed  by 
that  relationship.  Milwaukee  Mirror  & 
Art  Glass  Works  v.  Chicago,  M.  &  St.  P.  R. 
Co.  38:  383,  134  N.  W.  379,  148  Wis.  173. 

(Annotated) 

691.  A  carrier  which  accepts  a  hand  bag 
to  be  cared  for  in  its  baggage  department 
cannot,  after  loss  of  the  baggage,  claim  that 
it  should  have  been  left  at  the  parcel  stand, 
in  accordance  with  a  notice  stating  that 
such  baggage  should  be  checked  there. 
Milwaukee  Mirror  &  Art  Glass  Co.  v.  Chi- 
cago, M.  &  St.  P.  R.  Co.  38:  383,  134  N.  W. 
379,  148  Wis.  173. 

692.  Notice  to  a  carrier  when  a  parcel  is 
left  at  its  check  room,  to  be  very  careful 
of  it,  as  it  contains  lots  of  goods,  is  suffi- 
cient to  warn  the  bailee  that  the  articles 
are  of  considerable  value.  Fraam  v. 
Grand  Rapids  &  I.  R.  Co.  29:  834,  126  N.  W. 
851,   161   Mich.  556. 

693.  One  checking  a  parcel  at  a  carrier's 
check  room  is  not  negligent  in  failing  to 
make  inquiry  for  it  for  about  four  hours, 
and  then  making  the  inquiry  at  another 
station  and  asking  to  have  the  parcel  for- 
warded to  him.  Fraam  v.  Grand  Rapids  & 
I.  R.  Co.  29:  834,  126  N.  W.  851,  161  Mich. 
556. 

Delay  of  baggage. 

Punitive  damages  for  delay  in  transporting, 

see  Damages,  98. 
Measure  of  damages  for  delay,  see  Damages, 

299    300. 
Digest  1-52  Ii.R.A.(N.S.) 


Evidence  as  to  damages  from  failure  to 
transport  promptly,  see  Evidence, 
1705. 

694.  A  railroad  company  which  makes  out 
an  itinerary  for  an  orchestra  which  is  to 
give  concerts  on  the  road  is  liable  for  loss 
sustained  in  failing  to  forward  the  baggage 
car  in  time  for  a  matinee  performance  at  a 
certain  place,  although  it  did  not  know  that 
such  performance  was  scheduled,  if  the 
itinerary  provided  for  the  orchestra's  ar- 
riving there  in  time  for  such  performance. 
Altschuler  v.  Atchison,  T.  &  S.  F.  R.  Co. 
49:  491,  144  N.  W.  294,  155  Wis.  146. 

( Annotated ) 
Leaving    baggage    at    station    before 

time  for  train. 
Reasonableness  of  time  before  departure  of 

train  for  delivery  of  baggage  to  carrier, 

see  Teial,  202. 

695.  The  liability  of  a  carrier  which  re- 
ceives baggage  to  hold  until  the  arrival  of 
the  train  on  which  the  owner  is  to  take  it 
is  that  of  warehouseman,  even  though  the  in- 
terval between  such  receipt  and  the  de- 
parture of  the  train  is  unreasonable,  so  that 
the  liability  as  carrier  does  not  exist. 
Fleischman  v.  Southern  R.  Co.  9:  519,  56  S. 
E.  974,  76  S.  C.  237. 

Wben  liability  for,  ceases. 

696.  The  liability  of  a  railroad  company 
as  common  carrier,  for  baggage  coming  into 
its  station,  has  not  terminated  where  it 
retains  the  baggage  to  weigh  it,  and  within 
an  hour  thereafter  locks  it  in  the  station 
for  the  night,  the  passageway  in  the  mean- 
time being  so  blocked  by  freight  cars  that 
it  would  be  practically  impossible  to  re- 
move it,  and  it  is  destroyed  by  fire  during 
the  night.  Chesapeake  &  O.  R.  Co.  v. 
Beasley,  3:  183,  52  S.  E.  566,   104  Va.  788. 

(Annotated) 

697.  Failure  of  a  passenger  to  call  for  hig 
baggage  within  a  reasonable  time  after  its 
arrival  at  destination  does  not  absolve  the 
carrier  from  liability  for  its  loss  through 
its  negligence.  Central  of  Ga.  Ry.  Co.  v. 
Jones,  9:  1240,  43  So.  575,  150  Ala.  379. 

698.  A  railroad  company  is  not  liable,  as 
such,  for  the  loss  of  baggage  destroyed  in 
its  station  house,  where,  after  its  arrival, 
the  owner  had  contracted  for  its  storage  for 
hire.  Yazoo  &  M.  V.  R.  Co.  v.  Hughes, 
22:  975,  47  So.  662,  94  Miss.  242. 

2.  What  is  baggage. 

(See  also  Carriers,  II.  a,  12,  b,  in  Digest 
L.R.A.  1-70.) 

Raising  for  first  time  on  appeal  question 
whether  articles  were  baggage,  see  Ap- 
peal AND  Error,  694. 

Exemplary  damages  for  exclusion  of  per- 
sonal baggage,  see  Damages,  99. 

Evidence  to  show  notice  to  railway  com- 
pany that  trunks  contain  merchandise, 
see  Evidence,  2218. 

See  also  supra,  672;  infra,  879. 

699.  A  railroad  company  is  bound  by  the 
acts  of  its  baggageman  in  receiving  as  bag- 


404 


CARRIERS,  II.  o,  3,  4. 


gage  articles  not  -strictly  such,  where  the 
owner  has  no  notice  of  any  limitation  upon 
his  authority.  Bergstrom  v.  Chicago,  R.  I. 
&  P.  R.  Co.  lo:  III9,  HI  N.  \V.  818,  134 
Iowa,  223.  (Annotated) 

700.  A  suit  case  purchased  by  a  passenger 
for  his  own  use,  and  carried  to  his  home  in- 
side his  trunk,  is  baggage  for  the  safe  car- 
riage of  which  the  carrier  is  responsible. 
Kansas  City  S.  R.  Co.  v.  Skinner,  21:  850, 
113  S.  W.  1019,  88  Ark.  189. 
Household  goods. 

701.  Bed  linen  and  other  articles  designed 
for  use  in  his  business  by  one  moving  from 
one  locality  to  another  to  engage  in  the 
hotel  business  cannot  be  carried  by  him  as 
baggage  at  the  risk  of  the  carrier.  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  Miller,  39:  634, 
145  S.  W.  889,  103  Ark.  37.  (Annotated) 
Greek  mannscript. 

702.  A  manuscript  manual  on  Greek 
grammar  prepared  by  a  teacher  with  a  view 
to  ultimpte  publication,  but  carried  about 
by  him  to  aid  in  his  work  of  teaching,  may 
properly  be  regarded  as  baggage.  Wood  v. 
Cunard  S.  S.  Co.  41:  371,  192  Fed.  293,  112 
C.  C.  A.  651.  (Annotated) 
Tools. 

703.  A  carrier  which  accepts  as  baggage 
the  tools  of  a  watchmaker  is  liable  to  him 
for  their  value  in  case  they  are  destroyed 
by  its  negligence.  Wells  v.  Great  North- 
ern R.  Co.  34:  8i8,  114  Pac.  92,  116  Pac. 
1070,  59  Or.  165. 

Pattern  of  dress  •goods. 

704.  A  pattern  of  dress  goods  purchased 
by  a  traveler  on  his  homeward  journey  for 
use  of  a  member  of  his  family,  and  packed 
in  his  trunk  to  be  conveyed  to  her,  is  bag- 
gage for  the  safe  transportation  of  which  as 
such  the  .carrier  is  responsible.  Kansas 
City  S.  R.  Co.  v.  Skinner,  21:  850,  113  S.  W. 
1019,  88  Ark.  189.  (Annotated) 
Sample   trunks. 

Judicial  notice  of  custom  to  carry  sample 
cases  of  traveling  salesmen  as  baggage, 
see  Evidence,  52. 

705.  The  responsibility  of  a  railroad  com- 
pany for  the  sample  trunks  of  a  traveling 
salesman,  containing  merchandise,  is  the 
same  as  that  for  ordinary  baggage,  whether 
it  knows  of  the  contents  or  not.  Fleischman 
V.  Southern  R.  Co.  9:  519,  56  S.  E.  974,  76 
S.  C.  237. 

706.  A  railroad  company  which  checks 
sample  cases  as  baggage,  knowing  their  na- 
ture, assumes  liability  for  their  loss  aa 
though  they  were  baggage.  New  Orleans  & 
N.  E.  R.  Co.  V.  Shackleford,  4:  1035,  40  So. 
427,  87  Miss.  610.  (Annotated) 

707.  Goods  or  samples  carried  for  the  pur- 
pose of  use  in  making  sales  are  not  bag- 
gage in  the  ordinary  acceptation  of  that 
term;  but  if  the  carrier  accepts  such  things 
as  baggage,  with  knowledge,  express  or  im- 
plied, that  they  are  offered  for  transporta- 
tion as  baggage,  he  thereby  waives  any  ob- 
jection on  that  ground,  and  his  liability 
therefor  is  the  same  as  that  with  reference 
to  baggage  in  general.  Southern  R.  Co.  v. 
Dinkins  &  D.  Hardware  Co.  43:  806,  77  S. 
E.  147,  139  Ga.  332. 

Digest  1-52  L.R.A.(N.S.) 


708.  The  terms  of  a  contract  contained 
on  a  mileage  ticket,  that  "merchandise  of 
any  description  is  not  considered  as  bag- 
gage and  none  of  the  carriers  honoring  this 
ticket  are  liable  in  any  way  for  the  prompt- 
ness or  condition  of  any  samples  that  may 
be  carried  by  the  purchasers  thereof,"  do 
not  exclude  a  trunk  containing  samples  from 
being  considered  as  baggage.  Soiitliern  R. 
Co.  v.  Dinkins  &  D.  Hardware  Co.  43:  806, 
77  S.  E.  147,  139  Ga.  332. 

Jewelry. 

709.  A  railroad  company  is  liable  for  the 
reasonable  value  of  jewelry  lost  from  the 
suit  case  of  a  passenger  while  in  posses- 
sion of  its  trainman,  to  be  carried  from  the 
train,  if  it  was  intended  for  use  at  the 
end  of  the  journey,  and  was  adapted  to  the 
tastes,  habits,  and  standing  of  the  owner. 
Hasbrouck  v.  New  York  C.  &  H.  R.  R.  Co. 
35:  537,  95  N.  E.  808,  202  N,  Y.  363. 

3.  Talcing  parcels  on  train  or  street  car, 

(See  also  Carriers,  II.  o,  12,  c,  in  Digest 
L.R.A.  1-10.) 

Ice. 

710.  A  passenger  cannot  be  said  as 
matter  of  law  not  to  be  entitled  to  carry 
upon  a  street  car,  as  personal  baggage,  a 
small  piece  of  ice  wrapped  so  as  not  to 
drip.  Mcintosh  v.  Augusta  &  A.  R.  Co. 
30:  889,  69  S.  E.   159,  87  S.  C.  181. 

(Annotated) 

4.  liiahility   of  sleeping  car  company. 

(See  also  Carriers,  II.  a,  12,  d,  in  Digest 
L.R.A.  1-10.) 

Measure  of  damages  for  loss  of  baggage,  see 

Damages,  301. 
Presumption  and  burden  of  proof  in  case  of 

loss  of  personal  effects  of  passenger,  see 

Evidence,  360. 

I<oss  by  tkeft. 

Pleading  in  suit  for  theft  from  passenger 
by  sleeping  car  porter,  see  Pleading, 
367. 

711.  It  is  the  duty  of  a  sleeping  car  com- 
pany to  exercise  reasonable  care  to  guard 
the  personal  effects  of  the  passengers  from 
theft,  and  if,  through  want  of  that  care, 
such  articles  as  a  passenger  may  properly 
carry  with  him  on  the  journey  are  stolen, 
the  company  is  liable  for  their  value.  Pull- 
man Co.  v.  Schaffner,  9:  407,  55  S.  E.  933, 
126  Ga.  609.  (Annotated) 

712.  A  sleeping  car  company  is  not  re- 
sponsible for  jewelry  stolen  by  its  porter 
from  a  passenger  who  was  carrj'ing  it  mere- 
ly for  transportation,  and  not  for  use  dur- 
ing the  course  of  the  journey.  Bacon  v. 
Pulhnan  Co.  16:  578,  159  Fed.  1,  89  C.  C.  A. 
1. 

713.  A  sleeping  car  company  is  not  liable 
for  loss  of  property  by  a  passenger  seeking 
to  enter  the  car  on  an  intrastate  journey, 
taken  by  thieves  who  had  congregated  about 
the  entrance  to  the  car,  although  it  knew 


CARRIERS,  II.  0,  5. 


405 


that  thieves  had  been  operating  at  such 
station,  if  it  had  no  reason  to  anticipate 
that  they  would  be  present  at  the  time  and 
place  when  and  where  the  loss  occurred. 
Myers  v.  Pullman  Co.  41:  799,  149  S.  W. 
1002,    149    Ky.    776.  (Annotated) 

714.  A  sleeping  car  company  is  not 
chargeable  with  negligence  on  the  part  of 
the  agent  at  a  railroad  statian  who  is  au- 
thorized to  sell  its  tickets,  in  failing  to 
warn  an  intending  passenger  against  the 
possible  presence  of  thieves  or  pickpockets 
about  the  station  grounds  and  car  entrance. 
Mj'ers  V.  Pullman  Co.  41:  799,  149  S.  W. 
1002,  149  Ky.  776. 

715.  A  sleeping  car  company  is  not  guilty 
of  negligence  in  failing  to  warn  patrons  of 
the  possible  presence  at  a  watering  place 
of  thieves  and  pickpockets,  which  will  ren- 
der it  liable  for  loss  of  jewelry  taken  from 
one  attempting  to  enter  its  car  at  such 
place.  Myers  v.  Pullman  Co.  41:  799,  149 
S.  W.  1002,  149  Ky.  776. 

716.  One  who,  after  depositing  his  lug- 
gage in  a  sleeping  car,  returns  to  the  sta- 
tion platform  to  await  the  departure  of 
the  train,  cannot  hold  the  company  liable 
for  loss  of  jewelry  taken  from  him  by 
thieves  who  congregate  about  the  entrance 
of  the  car  after  the  train  has  begun  to 
move  and  the  car  officials  have  gone  inside. 
Myers  v.  Pullman  Co.  41:  799,  149  S.  W. 
1002,  149  Ky.  776. 

For  Tirliat  property  liable. 

717.  A  sleeping  car  company  owes  a  pas- 
senger no  duty  with  respect  to  articles  which 
he  is  carrying  solely  for  transportation. 
Bacon  v.  Pullman  Co.  16:  578,  159  Fed.  1, 
89  C.  C.  A.  1. 

718.  The  personal  effects  which  a  passen- 
ger may  carry  with  him  on  his  journey,  for 
the  loss  of  which  the  carrier  will  be  liable  if 
it  fails  to  exercise  reasonable  care  to  guard 
them,  may  include  articles  of  personal  adorn- 
ment, such  as  a  diamond  which  has  come  out 
of  its  setting  in  a  ring,  and  is  temporarily 
kept  by  a  passenger  in  his  pocket  book.  Pull- 
man Co.  V.  Schaffner,  9:  407,  55  S.  E.  933, 
126  Ga.  609. 

S.   Limitation  of  liability, 

(See  also  Carriers,  II.  a,  12,  e,  in  Digest 
L.R.A.  1-10.) 

As  to  passengers,  see  supra,  II.  m,  6. 

As  to  freight  generally,  see  infra.  III.  g. 

Extraterritorial    effect    of    rule    of    public 

service    commission,    see    Conflict    of 

Laws,  51. 
Sufficiency  of  plea  setting  up  limitation  of 

liability,  see  Pleading,  507. 
Necessity   of   special   finding   as   to  limited 

liability  contract,  see  Tbial,  1111. 

719.  The  provisions  of  the  Carmack 
Amendment  to  the  interstate  commerce  act, 
relative  to  the  power  of  interstate  carriers 
to  regulate  their  liabilities,  are  applicable 
to  the  transportation  of  the  baggage  of  an 
interstate  passenger.  Louisville  &  N.  R. 
Digest  1-52  I<.R.A.(N.S.) 


Co.  V.  Miller,  50:  819,  162  S.  W.  73,  156  Ky. 
677. 

720.  A  condition  in  a  railroad  ticket  sold 
at  a  price  below  the  usual  fare,  limiting  li- 
ability for  loss  of  baggage  to  a  specilied 
sum,  will  be  enforced.  Gomm  v.  Oregon  R. 
&  Nav.  Co.  25:  537,  101  Pac.  361,  52  Wash. 
685. 

721.  The  assent  by  a  passenger  purchas- 
ing a  reduced  fare  ticket  to  a  provision 
therein  limiting  the  liability  of  the  carrier 
for  loss  of  baggage  to  a  certain  sum  is 
ineffective  in  case  of  loss  caused  by  car- 
rier's negligence.  Wells  v.  Great  North- 
ern R.  Co.  34:  818,  114  Pac.  92,  116  Pac. 
1070,  59  Or.  165.  (Annotated) 

722.  A  stipulation  in  a  railway  ticket 
that  baggage  liability  is  limited  to  an 
amount  not,  exceeding  a  specified  sum  in 
value  is  not  a  stipulation  by  the  parties  as 
to  the  value  of  the  baggage  which  will 
bind  the  owner  in  case  it  is  lost  through 
the  carrier's  negligence.  Wells  v.  Great 
Northern  R.  Co.  34:  818,  114  Pac.  92,  116 
Pac.  1070,  59  Or.  165. 

723.  Failure  to  afford  the  passenger  an 
opportunity  to  name  a  different  amount 
will  not  render  a  provision  in  a  reduced 
rate  passenger  ticket  limiting  the  carrier's 
liability  for  baggage  to  a  specified  sum, 
invalid  where,  by  paying  the  full  regular 
fare,  he  might  have  imposed  upon  the  car- 
rier full  liability  for  the  baggage.  Gardi- 
ner V.  New  York  C.  k  H.  R.  R.  Co.  34:  826, 
94  N.  E.  876,  201  N.  Y.  387. 

724.  A  provision  in  a  reduced  rate  pas- 
senger ticket  that  the  carrier's  liability 
fw  baggage  shall  not  exceed  a  specified 
sum  fixes  the  valuation  of  the  baggage, 
and  limits  the  liability  of  the  carrier  to 
that  amount,  even  when  loss  is  occasioned 
by  its  negligence,  although  the  contract 
does  not  contain  an  express  exemption 
from  liability  for  loss  caused  by  such  neg- 
ligence. Gardiner  v.  New  York  C.  &  H.  R. 
R.  Co.  34:  826,  94  N.  E.  876,  201  N.  Y. 
387.  (Annotated) 

725.  A  notice  limiting  a  carrier's  liabil- 
ity for  loss  of  baggage,  indorsed  on  the 
back  of  a  passage  ticket,  is  not  binding  upon 
the  passenger  unless  he  consented  to  it,  so 
as  to  effect  a  contract  modifying  the  car- 
rier's common-law  liability.  Wood  v. 
Cunard  S.  S.  Co.  41:  371,  192  Fed.  293,  112 
C.  C.  A.  551. 

726.  A  statement  of  limitation  of  bag- 
gage liability  in  the  schedules  filed  by  a 
railroad  company  under  the  interstate  com- 
merce act  does  not,  although  it  appears 
in  connection  with  the  rates  to  be  charged 
for  transportation,  bind  the  shipper  so  as 
to  prevent  his  holding  the  carrier  for  the 
full  value  of  his  baggage  in  case  it  is  lost 
through  the  carrier's  negligence.  Wells 
V.  Great  Northern  R.  Co.  34:  818,  114  Pac. 
92,  116  Pac.  1070,  59  Ore.  165. 

727.  The  limitation  of  liability  for  value 
of  baggage  lost,  contained  on  a  railroad 
ticket,  does  not  apply  to  hand  baggage  re- 
tained in  possession  of  the  owner  except 
as  it  may  be  temporarily  delivered  to  rail- 
road employees,  to  be  carried  on  or  off  the 


406 


CARRIERS,  II.  p.  q. 


train.    Hasbrouck  v.  New  York  C.  &  H.  R. 
R-  ^o.  35:  537,  95  N.  E.  808,  202  N.  Y.  3G3. 

728.  A  carrier  of  passengors  may  bona 
fide  agree  with  the  purchaser  of  a  ticket  on 
the  value  of  baggage;  but  a  mere  general 
limitation  as  to  value,  expressed  in  a 
printed  form  of  a  contract,  intended  to  be 
applicable  to  the  baggage  of  all  passengers 
using  that  form  of  ticket  though  signed  by 
the  carrier  and  the  purchaser  of  the  ticket, 
is  not  a  bona  fide  agreement  as  to  the  value 
of  the  particular  baggage,  and  amounts  to 
no  more  than  an  arbitrary  preadjustment 
of  damages.  Southern  R.  Co.  v.  Dinkins 
&  D.  Hardware  Co.  43:  806,  77  S.  E.  147,  139 
Ga.  332. 

729.  A  stipulation  in  a  steamship  ticket 
limiting  liability  for  baggage  to  a  certain 
amount,  unless  the  excess  value  is  declared 
and  paid  for,  does  not  apply  to  baggage  in- 
tended to  be  taken  jy  a  passenger  to  the 
stateroom  for  use  during  the  voyage. 
Holmes  v.  North  German  Lloyd  S.  S.  Co. 
5:  650,  77  N.   E.   21,   184  N.  Y.   280. 

(Annotated) 

730.  The  insertion  in  a  steamship  ticket 
of  a  provision  limitingthe  liability  of  the  car- 
rier for  loss  of  baggage  to  a  certain  amount, 
unless  the  true  value  is  declared  and  excess 
paid  for  at  regular  freight  rates,  "will  op- 
erate to  relieve  the  carrier  from  liability  for 
such  loss,  even  when  due  to  its  own  negli- 
gence. Tewes  v.  North  German  Llovd 
S.  S.  Co.  8:  199,  78  N.  E.  864,  186  N.  Y. 
151.  (Annotated) 

731.  A  provision  on  a  transportation 
ticket  that  the  carrier  is  not  to  be  responsi- 
ble for  the  destruction  of  baggage  by  fire  is 
binding  on  the  passenger  in  its  application 
to  fires  not  caused  by  the  carrier's  negli- 
gence, although  it  is  in  print  so  fine  that 
the  passenger  cannot,  because  of  defective 
sight,  read  it,  if  the  printed  provisions  on 
the  ticket  are  sufficiently  conspicuous  to 
charge  him  with  notice  that  they  contain  a 
contract.  French  v.  Merchants  &  M.  Transp. 
Co.  19:  1006,  85  N.  E.  424,  199  Mass.  433. 

( Annotated ) 
"  732.  A  provision  on  a  check  issued  by  a 
railroad  company  maintaining  a  check  room 
in  its  station,  limiting  its  liability  for  each 
article  lost,  is  binding  on  the  patron.  Terry 
v.  Southern  R.  Co.  18:  295,  62  S.  E.  249,  81 
S.  C.  279.  (Annotated) 

p.  Corpse. 

Refusal  to  deliver,  see  infra,  823-825. 
Measure    of     damages     for     mutilation     of 

corpse,  see  Damages,  630,  631. 
Mental   anguish   for  breach   of   contract  to 

transport  corpse,  see  Damages,  632. 
Sufficiency  of  complaint  in  suit  for  carrying 

corpse  beyond  proper  point  of  delivery, 

see  Plkading,  632. 

732a.  A  husband  may  maintain  an  action 
ex  delicto  against  a  common  carrier  to  re- 
cover damages  resulting  from  the  act  of  the 
carrier  in  soiling  and  ruining  the  casket 
containing  the  body  of  his  dead  wife,  and 
mutilating  and  disfiguring  the  corpse  by 
Digest  1-52  I..R.A.(N.S.) 


negligently  and  wilfully  exposing  it  to  the 
rain.  Lindh  v.  Great  Northern  11.  Co.  7: 
1018,  109  N.  W.  823,  99  Minn.  408. 

q.  Connecting  carriers. 

(See  also  Carriers,  II.  c,  1,  in  Digest  L.R.A. 
1-10.) 

Liability  as  to  baggage,  see  supra,  685-687. 
Requiring  carriers  to  keep  on  sale  tickets  of 

connecting  carrier,  see  infra,  999,  1027. 
Refusal  to  sell  tickets  over  connecting  line 

at  prices  fixed  by  railroad  commission, 

see  infra,  1027. 
Of  freight,  see  infra,  III.  j. 
Damages  for  causing  passenger  to  miss  train 

on  connecting  road,  see  Damages,  268, 

269. 
Refusal  of  connecting  line  to  honor  ticket, 

see  Evidence,  529. 
Pleading  as  to,  see  Pleading,  295,  368. 
Demurrer   to   complaint   in   action   against, 

see  Pleading,  560,  579,  580. 

733.  The  mere  fact  that  no  trains  afi'ord- 
ing  passenger  accommodations  passed  a  junc- 
tion point  between  two  railroads  within 
one  hour  after  the  arrival  thereat  of  a 
through  passenger  having  a  ticket  from  a 
point  on  one  line  to  a  point  on  the  other 
is  not  of  itself  negligence  on  the  part  of 
either  company.  Riley  v.  Wrightsville  & 
T.  R.  Co.  24:  379,  65  S.  E.  890,  133  Ga.  413. 

734.  Where  a  coupon  ticket  entitling  a 
passenger  to  transportation  over  several 
roads  is  not  a  joint  contract,  but  is  sold  by 
one  company  merely  as  agent  for  the  others, 
the  terminal  road  is  not  responsible  for 
delays  caused  by  negligence  of  the  others, 
so  as  to  be  required  to  carry  the  passenger 
if  he  does  not  reach  it  before  the  ticket  has 
expired.  Brian  v.  Oregon  Short  Line  R.  Co. 
25:  459,  105  Pac.  489,  40  Mont.  109. 

( Annotated ) 

735.  The  existence  of  a  custom  of  con- 
necting railroads  to  recognize  the  contracts 
made  by  the  agents  of  either  in  selling  tick- 
ets over  the  connecting  line  is  suflieient  to 
establish,  in  favor  of  the  purchaser  of  a 
particular  ticket,  the  authority  of  the  agent 
to  make  the  contract  expressed  on  its  face. 
Cherry  v.  Chicago  &  A.  R.  Co.  2:  695,  90  S. 
W.  381,  191  Mo.  489. 

736.  Damages  for  injuries  caused  by  the 
negligence  of  the  other  carriers  over  whose 
roads  a  passenger  is  taken  cannot  be  re- 
covered from  the  initial  carrier  because  of 
the  misdirection  of  its  agent  as  to  the  best 
route  to  pursue.  St.  Louis  Southwestern 
R.  Co.  v.  White,  2:  110,  89  S.  W.  746,  99  Tex. 
359. 

737.  The  relation  of  carrier  and  passen- 
ger does  not  exist  between  the  purchaser  of 
a  coupon  ticket  and  the  initial  carrier  be- 
yond its  line,  where  the  coupons  for  the  trip 
beyond  its  line  purported  to  be  issued  by 
such  carrier  as  agent,  and  the  purchaser 
does  not  deny  that  it  acted  only  as  agent 
as  to  points  beyond  its  own  road.     McDon- 


CARRIERS,  III.  a. 


407 


aid  V.  Central  R.  Co.   (N.  J.  Err.  &  App.) 
2:505,  62  Atl.  405,   72   N.  J.   L.  280. 

738.  The  terminal  carrier  vinder  a  through 
contract  made  by  the  initial  carrier  on  its 
behalf  is  liable  for  cutting  out  a  through 
sleeping  car  aft.er  it  has  reached  its  line, 
and  compelling  a  passenger  entitled  to  ride 
in  it  to  destination,  to  complete  his  journey 
in  an  ordinary  coach.  Seibels  v.  Northern 
C.  R.  Co.  16:  1026,  61  S.  E.  435,  80  S.  C. 
133. 

739.  A  ■  railroad  company  receiving  a 
sleeping  car  from  another  company  upon 
which  is  a  passenger  for  a  car  on  its  train 
whom  the  conductor  of  the  former  car  has 
undertaken  to  put  on  the  right  car  is  not 
liable  for  sending  that  car  forward  in  the 
first  section  of  the  train,  so  that  the  passen- 
ger does  not  get  it,  where  it  had  no  notice 
of  her  desire  until  after  the  train  had  been 
separated,  and  its  conductor  did  all  he 
eould  to  rectify  the  mistake  after  learning 
of  it.  Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v. 
Kaine,  19:  753,  113  S.  W.  495,  130  Ky.  454. 

740.  A  street  car  company  which  issues 
tickets  good  over  a  connecting  road  which 
it  does  not  control  is  liablf  to  a  purchaser 
of  a  ticket  for  injury  to  him  while  a  pas- 
senger on  the  other  line,  through  the  negli- 
gence of  its  employees,  although  the  ticket 
was  actually  sold  by  a  conductor  of  the 
company  causing  the  injury  as  agent  for 
the  company  issuing  it,  and  the  latter  re- 
ceived no  benefit  from  the  sale.  Mullen  v. 
Chester  Traction  Co.  42:  76,  84  Atl.  429, 
235  Pa.   516.  (Annotated) 

///.    Carriers  of  freight. 

a.  In  general;  potvers  of  agents. 

(See  also  Carriers,  II.  6,  1,  in  Digest  L.R.A. 
1-70.) 

Who  are  common  carriers,  see  supra,  I. 

Duty  as  to  corpse,  see  supra,  II.  p. 

Termination  of  carrier's  liability,  see  infra, 
III.  d,  2. 

Matters  as  to  connecting  carriers,  see  infra, 
III.  j. 

Attachment  of  freight  cars,  see  Attach- 
ment, 23;  Levy  and  Seizube,  15,  16, 
29. 

As  to  bills  of  lading,  see  Bills  op  Lading. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  I.  b,  4. 

Sufficiency  of  delivery  to,  of  goods  sold,  to 
,  satisfy  statute  of  frauds,  see  Con- 
tracts, 314. 

Agreement  to  furnish  certain  per  cent  of 
freight  tonnage  to  railroad,  see  Con- 
tracts, 359;  Specific  Performance, 
69. 

Eight  of  railroad  to  terminate  agreement  to 
transport  cars  over  branch  road  free, 
see  Contracts,  718. 

Jurisdiction  of  action  for  breach  of  contract 
to  transport  property  from  state  into 
or  through  others,  see  Courts,  200.         I 

Measure  of  damages  for  breach  of  duty  as 
to,  see  Damages,  III.  d. 

Digest  1-52  Ii.R.A.(N.S.) 


Letter-press  copies  of  way  bills  as  evidence, 
see  Evidence,  719. 

Sufiiciency  of  evidence  to  sustain  finding 
that  car  was  being  moved  to  certain 
station,  see  Evidence,  2310. 

Presumption  and  burden  of  proof  as  to  neg- 
ligence, see  Evidence,  II.  h,  1,  b,  2. 

Liability  for  transporting  liquor  into  local- 
option  territory,  see  Evidence,  2410; 
Indictment,  etc.,  33;  Intoxicating 
Liquors,  115-119;  Trial,  303. 

Injunction  against  transportation  of  liquor 
into  prohibition  territory,  see  Injunc- 
tion, 170. 

Enjoining  carriers  from  complying  with 
statute  regulating  shipment  of  cream, 
see  Injunction,  354. 

When  sale  of  liquors  delivered  to,  for 
transportation,  is  completed,  see  In- 
toxicating Liquors,  42,  56,  119,  166- 
179. 

Liability  for  false  imprisonment,  see  False 
Imprisonment,  11. 

Garnishment  of  freight  due  nonresident  car- 
rier, see  Garnishment,  20. 

Right  of  consignee  to  garnish  freight  money 
in  hands  of  his  own  agent,  see  Garnish- 
ment, 4,  5. 

When  freight  money  may  be  considered 
within  power  of  carrier  so  as  to  be  sub- 
ject to  attachment  for  his  debt,  see 
Levy  and  Seizure,  18. 

Mandamus  to  compel  furnishing  of  sufficient 
motive  power  and  cars  to  transport 
freight,  see  Mandamus,  76. 

Conductor's  implied  authority  to  carry  per- 
son in  consideration  of  service  in  han- 
dling freight,  see  Master  and  Serv- 
ant, 4. 

Assault  on  consignee  of  freight  by  delivery 
clerk,  see  Master  and  Servant,  959. 

Mechanics'  lien  for  money  advanced  to  pay 
'freight  on  material,  see  Mexjhanics' 
Liens,  49. 

Conversion  by  carrier,  see  Parties,  31; 
Trover,  23-29,  30-35,  43. 

Sufficiency  of  reply  in  action  for  breach  of 
carriage  contract,  see  Pleading,  548. 

Passing  of  title  on  delivery  to  carrier,  see 
Sale,  28-30. 

Effect  of  delivery  to,  of  goods  sold,  as  ac- 
ceptance, see  Sale,  52. 

Stoppage  in  transitu,  see  Sale,  III.  b. 

741.  Dead  freight  includes  unliquidated 
damages  for  failure  to  load  a  full  cargo. 
Kish  v.  Taylor,  3  B.  R.  C.  266,  [1912]  A. 
C.  604.  Also  Reported  in  81  L.  J.  K.  B.  N. 
S.  1027,  17  Com.  Cas.  355,  106  L.  T.  N.  S. 
900,  [1912]  W.  N.  144,  28  Times  L.  R.  425, 
56  Sol.  Jo.  518. 

742.  A  contract  for  transportation,  made 
by  a  railroad  company,  is  subject  to  the 
provisions  of  the  Constitution  and  laws  ex- 
isting when  the  contract  is  made.  State 
ex  rel.  Ellis  v.  Atlantic  C.  L.  R.  Co.  12:  506, 
41  So.  705,  52  Fla.  646. 

743.  The  receipt  by  the  consignee,  after 
loss,  of  a  bill  of  lading  not  signed  or  au- 
thorized to  be  signed  by  him,  does  not  show 
acquiescence  in  its  terms,  where  there  was 
no  consent  to  receive  the  bill  at  some  future 


408 


CARRIERS,  III.  a. 


time  or  to  make  the  contract  included  there- 
in, as  nothing  short  of  an  express  stipula- 
tion will  constitute  such  an  agreement.  Mc- 
Gregor V.  Oregon  R.  &  Nav.  Co.  14:  668,  93 
Pac.  465,  50  Or.  527. 

744.  An  order  from  the  shipper  of  goods 
consigned  to  shipper's  order,  duly  accepted 
by  the  carrier  and  noted  on  the  origimil  bill 
of  lading  by  its  agent,  directing  a  diversion 
of  the  goods  from  one  destination  to  an- 
other, is  equivalent  to  a  demand  for  de- 
livery. Atchison,  T.  &  S.  F.  R.  Co.  v. 
Schriver,  4:  1056,  84  Pac.  119,  72  Kan.  550. 

745.  While  a  bill  of  lading  is  to  be  con- 
strued as  a  •whole,  invalid  conditions  will 
not  necessarily  render  the  contract  invalid, 
it  being  enforceable  as  far  as  valid.  Whit- 
nack  V.  Chicago,  B.  &  Q.  R.  Co.  19:  loii, 
118  N.  W.  67,  82  Neb.  464. 

746.  A  carrier  which  has  received  proper- 
ty for  shipment  is  not  bound  to  recognize 
the  demands  of  a  stranger  to  control  the 
property  on  the  ground  that  it  was  pro- 
cured from  him  by  fraud.  Switzler  v. 
Northern  P.  R.  Co.  12:  254,  88  Pac.  137,  45 
Wash.  221.  (Annotated) 

747.  A  local  express  company  to  which 
goods  are  given  for  delivery  to  a  carrier, 
to  be  by  it  transported  into  another  state 
and  there  delivered  to  a  named  consignee, 
is  the  sender's  agent  for  delivering  the  goods 
for  shipment,  and  for  whatever  usually  and 
naturally  belongs  to  the  doing  thereof,  in- 
cluding the  giving  of  information  necessary 
to  the  shipment.  Harrington  v.  Wabash  R. 
Co.  23:  745,  122  N.  W.  14,  108  Minn.  257. 
Deviation   from   route. 

See  also  infra,  875,  885,  916,  917. 

748.  A  contract  of  affreightment  is  not 
put  an  end  to  either  by  a  breach  of  the 
warranty  of  seaworthiness  or  by  a  devia- 
tion which  is  in  fact'  necessary  for  the  safe- 
ty of  the  ship  and  crew  but  the  necessity 
for  which  is  caused  by  unseaworthiness.  Kish 
V.  Taylor,  3  B.  R.  C.  266,  [1912]  A.  C. 
604.  Also  Reported  in  81  L.  J.  K.  B.  N.  S. 
1027,  17  Com.  Cas.  355,  106  L.  T.  N.  S. 
900,  [1912]  W.  N.  144,  28  Times  L.  R.  425, 
56  Sol.  Jo.  518.  (Annotated) 

749.  A  deviation  from  the  ordinary  course 
of  a  voyage,  if  reasonably  necessary  for  the 
safety  of  the  ship  or  cargo,  or  for  saving 
human  life,  is  not  a  breach  of  the  contract 
of  affreightment,  whether  that  contract  be 
a  special  contract,  such  as  is  evidenced  by 
bills  of  lading,  or  whether  it  is  that  which 
is  implied  from  bailment  for  the  purpose 
of  carriage.  Kish  v.  Taylor,  2  B.  R.  C. 
575,  [1911]  IK.  B.  625.  Also  Reported  in 
80  L.  J.  K.  B.  N.  S.  601,  103  L.  T.  N.  S. 
785,  27  Times  L.  R.  174,  16  Com.  Cas,  59, 
11  Asp.  Mar.  L.  Cas.  544.  (Annotated) 

750.  Deviation  of  a  vessel  from  her  voy- 
age by  putting  into  a  port  of  refuge,  al- 
though reasonably  necessary  for  the  safety 
of  the  ship  and  cargo,  is  not  justifiable 
where  the  necessity  for  the  deviation  is  due 
to  the  default  of  the  ship  owner  in  sending 
the  ship  to  sea  in  an  unseaworthy  condi- 
tion. Kish  v.  Taylor,  2  B.  R.  C.  575,  [1911] 
1  K.  B.  625.  Also  Reported  in  80  L.  J.  K. 
B.  N.  S.  601,  103  L.  T.  N.  S.  785,  27  Times 
Diseat  1-52  I..R.A.(N.S.) 


L.  R.  174,  16  Com.  Oas.  59,  11  Asp.  Mar.  L. 
Cas.  544. 

751.  The  implied  undertaking  of  a  carrier 
not  to  deviate  has  the  effect  of  a  condition 
which  goes  to  the  root  of  the  contract,  the 
failure  to  comply  with  which  displaces  the 
special  contract  expressed  in  the  bill  of 
lading,  leaving  only  such  terms  of  it  sur- 
viving as  may  be  implied  from  the  circum- 
stances and  conduct  of  the  parties  by  way 
of  new  contract  arising  out  of  the  old 
contract.  Joseph  Thorley  Ltd.  v.  Orchis 
S.  S.  Co.  Ltd.  2  B.  R.  C.  565,  [1907]  1  K. 
B.  660.  Also  Reported  in  76  L.  J.  K.  B.  N. 
S.  595,  96  L.  T.  N.  S.  488,  23  Times  L.  R. 
338,  12   Com.  Cas.  251;   Kish  v.   Taylor,   2 

B.  R.  C.  575,  [1911]  1  K.  B.  625.  Also  Re- 
ported in  80  L.  J.  K.  B.  N.  S.  601,  103  L. 
T.  N.  S.  785,  27  Times  L.  R.  174,  16  Com. 
Cas.  59,  11  Asp.  Mar.  L.  Cas.  544. 

(Annotated) 
Poxirers  of  agents. 
Power  of  agents  as  to  passenger,  see  supra, 

25-34. 
Estoppel  as  to,  see  Estoppel,  101. 

752.  The  authority  of  a  station  agent  of  a 
railroad  company  to  agree  to  furnish  cars 
for  shipment  of  "freight  will  be  deemed  to  be 
included  within  the  scope  of  his  employ- 
ment. Clark  V.  Ulster  &  D.  R.  Co.  13:  164, 
81  N.  E.  766,  189  N.  Y.  93. 

753.  A  carrier  is  not,  even  as  against  a 
bona  fide  holder  for  value,  estopped  to  deny 
the  validity  of  a  bill  of  lading  issued  by  its 
agent,  on  the  ground  that  the  goods  were 
never  delivered  to  it  for  shipment.  Roy  v. 
Northern  P.  R.  Co.  6:  302,  85  Pac.  53,  42 
Wash.  572.  (Annotated) 

754.  A  local  station  agent  has  no  author- 
ity to  make  a  contract  binding  a  carrier  to 
pay  for  damage  to  a  shipper's  property, 
caused  by  a  fire,  after  the  car  had  been 
turned  over  to  the  shipper  to  be  unloaded. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Kelm, 
44:  995,  141  N.  W.  295,  121  Minn.  343. 

755.  A  station  agent  at  the  destination 
of  a  shipment  of  stock,  who  is  not  shown 
to  have  any  authority  to  adjust  and  set- 
tle claims  for  damages,  and  who  does  not 
represent  that  he  has  such  authority,  has 
no  power  to  waive  a  provision  of  the  ship- 
ping contract  requiring  suit  to  be  brought 
within  ninety  days  after  the  happening  of 
the  injuries,  by  advising  the  shipper  not  to 
sue,  as  the  company  always  prefers  to  set- 
tle that  class  of  claims,  where  the  contract 
further  provides  that  no  agent  of  the  car- 
rier shall  have  any  authority  to  modify 
or  waive  any  provision  thereof.  Missouri, 
K.  &  T.  R.  Co.  V.  Davis,  24:  866,  104  Pac. 
34,  24  Okla.  677. 

C.  O.   D.   shipments. 

756.  A  carrier  may  relieve  itself  from 
liability  to  collect  C.  O.  D.  charges  in  case 
the  consignee  replevies  the  property  from 
it,  by  notifying  the  consignor  and  permit- 
ting the  proceedings  to  take  their  regular 
course  until  they  result  in  a  judgment  in 
favor  of  the  consignee.  Cleveland,  C.  C.  & 
St.  L.  R.  Co.  V.  Anderson  Tool  Co.  49:  749, 
103  N.  E.  102,  180  Ind.  453. 


CARRIERS,  III.  b. 


409 


Reshipping   on   original  tvaybill. 

757.  A  carrier  may  withdraw  from  a 
Bliipper  the  privilege  of  a  custom  which  he 
has  enjoyed  for  only  about  fifteen  months, 
of  having  his  goods  reshipped  on  the 
original  waybills,  all  charges  to  be  paid  at 
final  destination,  where  the  privilege  is 
only  extended  to  shippers  on  the  credit  list 
of  the  carrier,  from  which  the  shipper's 
name  has  been  stricken  because  of  disputes 
over  freight  charges.  Brown  &  Brown  Coal 
Co.-  V.  Grand  Trunk  R.  System,  29:  840, 
124  N.  W.  528,  159  Mich.  565. 

Injuries  to  person  loading  or  unload- 
ing. 

Proximate  cause  of  injury,  see  Proximate 
Cause,  19,  103;  Trial,  182. 

758.  The  duty  of  reasonable  inspection, 
imposed  upon  a  carrier  receiving  cars  from 
another  line,  does  not  require  it  to  unscrew 
the  cap  on  the  dome  of  an  oil  car  to  dis- 
cover whether  a  concealed  check  valve  was 
properly  set  in  loading  the  car  so  as  to  pro- 
tect from  injury  persons  in  the  employ  of 
the  consignee  who  might  unload  it.  Gulf, 
W.  T.  &  P.  R.  Co.  v.  Wittnebert,  14:  1227, 
108  S.  W.  150,  101  Tex.  368. 

759.  A  railroad  company  is  liable  for  in- 
jury, through  defect  in  a  car,  to  a  servant 
of  a  shipper  who  is  assisting  in  loading  it, 
where  the  defect  was  imminently  dangerous 
to  persons  using  the  car,  and  the  circum- 
stances were  such  as  to  require  an  ordinarily 
prudent  person  to  put  the  car  into  proper 
condition  before  parting  with  it.  Chicago, 
I.  &  L.  R.  Co.  v.  Pritchard,  9:  857,  79  N.  E. 
508,  168  Ind.  398.  (Annotated) 

760.  A  railway  company  which  furnishes 
a  defective  car  to  the  employer  of  another 
is  not  liable  in  damages  for  injuries  to  the 
servant  of  the  employer  caused  by  such  de- 
fect, when  the  employer  knew  of  the  defect 
in  time  to  have  repaired  the  same,  or  to 
have  warned  the  servant,  but  neglected  to 
do  either.  McCallion  v.  Missouri  P.  R.  Co. 
9:  866,  88  Pac.  50,  74  Kan.  785. 

(Annotated) 

761.  A  railroad  company  which  under- 
takes to  deliver  freight  to  the  consignee  from 
the  car  in  which  it  was  transported  is  bound 
to  exercise  ordinary  care  to  have  the  car 
safe  for  those  who  properly  resort  to  it  to 
receive  the  property;  and  it  is  immaterial 
that  the  car  is  in  fact  the  property  of  an- 
other corporation.  Ladd  v.  New  York,  N.  H. 
&  H.  R.  Co.  9:  874,  79  N.  E.  742,  193  Mass. 
359.  (Annotated) 

762.  If  a  carrier  invites  a  consignee  and 
h'is  employees  to  take  a  consignment  of 
freight  from  the  car  in  which  it  was  trans- 
ported, it  cannot  avoid  liability  for  injury 
to  one  of  the  men  through  a  defect  in  the 
car  door,  by  the  fact  that  the  defect  is 
known  to  the  consigliee  and  he  takes  no  steps 
to  warn  his  employees  or  guard  them  from 
injury, — especially  where,  after  being 
warned  of  the  defect  by  the  consignee,  the 
carrier  takes  no  steps  to  remedy  it.  Ladd  v. 
New  York,  N.  H.  &  H.  R.  Co.  9:  874,  79  N.  E. 
742,  193  Mass.  359.  (Annotated) 

763.  A  consignee  of  goods  by  a  trolley 
express  car  who,  in  response  to  an  invita- 
Digest  1-52  L.R.A.(N.S.) 


tion  of  the  conductor,  goes  to  the  side  door 
of  the  car  with  a  wheelbarrow  to  receive 
his  goods  while  it  is  standing  on  a  curve, 
is  entitled  to  an  opportunity  to  reach  a 
place  of  safety  before  the  car  starts,  and 
may  hold  the  carrier  liable  for  his  injury 
in  case  the  car  starts  and  injures  him  » 
before  he  has  had  sufficient  time  to  get 
clear  of  its  swing  after  he  has  received  hia 
property.  Hauenstein  v.  Conestoga  Trac- 
tion  Co.   31:960,   78  Atl.   31,  229   Pa.    128. 

( Annotated ) 
Injury    by    xirild    animals. 

764.  A  carrier  having  possession  ofj|a 
wild  animal  for  transportation  is  not  wi^- 
in  the  rule  that  the  keeper  of  such  animal 
is  liable  for  injuries  caused  by  it  irrespec- 
tive of  negligence  on  his  part.  Molloy  v. 
Starin,  16:  445,  83  N.  E.  588,  191  N.  Y.  21. 

765.  A  carrier  is  not  liable  for  injuries 
inflicted  by  wild  animals  in  its  possession 
for  transportation,  upon  one  visiting  its 
freight  house  with  no  business  to  transact, 
and  who,  impelled  by  curiosity,  goes  between 
the  cages,  where  it  had  arranged  them  fa- 
cing each  other  so  that  the  public  could 
make  reasonable  use  of  the  premises  with- 
out being  entrapped  to  their  injury.  Mol- 
loy v.  Starin,  16:  445,  83  N.  E.  588,  191  N. 
Y.  21. 

Express  limits;  free  delivery. 
Right  of  state  to  compel  free  delivery  by 
express  companies,  see  infra,  991. 

766.  The  common-law  duty  of  express 
companies  to  make  free  deliveries  of  parcels 
committed  to  their  care  is  not  such  as  to 
preclude  them  from  fixing  charges  for 
transportation  which  will  not  include  such 
deliveries,  and  requiring  consignees  to  pay 
for  making  a  personal  delivery  to  them. 
State  ex  rel.  Railroad  Commission  v.  Adams 
Exp.  Co.  19:  93,  85  N.  E.  337,  966,  171  Ind. 
138. 

Insurance. 

Sufficiency  of  complaint  in  action  by  cargo 
owner  to  recover  insurance  process 
from  carrier,  see  Pleading,  414. 

767.  The  owner  of  a  vessel  which  insures 
the  cargo  for  account  of  whom  it  may  con- 
cern, and  collects  the  insurance  on  it,  upon 
loss  of  the  cargo  by  fire,  for  which  he  is  n^  '■■ 
liable  to  the  shippers,  because  of  limita- 
tion of  liability  proceedings,  must  account 
to  them  for  the  money  collected,  and  can- 
not retain  the  same  for  his  own  use. 
Symmers  v.  Carroll,  47:  196,  101  N.  E.  698, 
207  N.  Y.  632.  (Annotated) 

b.  Duty  to  receive  and  transport. 

(See  also  Carriers,  II,  0,  2,  in  Digest  L.R.A. 
1-70.) 

Contract  or  duty  to  furnish  cars,  see  infra, 
III.   h. 

Jurisdiction  of  suit  to  compel  carrier  to 
receive  property  for  transportation,  see 
Courts,  12,  261 ;  Interstate  Commerce 
Commission,   2. 

Damages  for  refusal  to  transport,  see  Dam- 
ages, 285. 


410 


CARRIERS,  III.  b. 


Injunction  to  restrain  discrimination  against 
shipper,  see  Injunction,  409. 

Mandamus  to  compel  express  company  to 
accept  and  deliver  goods,  see  Manda- 
mus, 62. 

Mandamus  to  compel  carrier  to  make  pro- 
vision for  transportation  of  coal,  i^ee 
Mandamus,  124,  125. 

Duty  of  telegraph  company  to  receive  mes- 
sage, see  Telegraphs,  II,  a,  1. 

Compulsory  service  by  telephone  company, 
see  Telephones,  7. 

See  also  infra,  1003,  1079. 

%68.  A  railroad  company  does  not  per- 
form its  duty  to  the  public  in  providing 
equipment  which  is  adequate  only  for  the 
handling  of  the  business  tendered  to  it  dur- 
ing the  dullest  months  of  the  year.  Yazoo 
&  M.  Valley  R.  Co.  v.  Blum,  lo:  432,  40  So. 
748,  88  Miss.   180. 

769.  A  corporation  engaged  in  business  as 
a  common  cajrier  is  boi.nd  to  receive  all 
goods  offered  it  for  transportation,  which 
it  is  able  and  accustomed  to  carry,  upon 
compliance  with  such  reasonable  regulations 
as  it  may  adopt  for  its  own  safety  and  the 
benefit  of  the  public;  and  a  private  party 
may,  by  mandamus,  enforce  the  perform- 
ance of  this  public  duty  by  such  common 
carrier  as  to  n.atters  in  which  such  party 
has  a  special  interest.  Southern  Exp.  Co. 
V.  R.  M.  Rose  Co.  5:  619,  53  S.  E.  185,  124 
Ga.  581. 

770.  A  suflScient  tender  of  stock  to  a  car- 
rier for  shipment  is  made  by  notifying  the 
carrier  of  the  need  of  cars,  and  placing  and 
keeping  the  stock  within  a  short  distance 
of  the  station  in  obedience  to  instructions  of 
the  station  agent.  St.  Louis,  I.  M.  &  S.  R. 
Co.  V.  Ozier,  17:  327,  110  S.  W,  593,  86  Ark. 
179. 

771.  By  a  long  and  continuous  custom  of 
receiving  and  transporting  cord  wood  left 
at  a  point  along  the  main  line  of  its  track, 
not  at  a  regular  station  or  side  or  spur 
track,  a  common  carrier  may  obligate  it- 
self to  continue  the  custom  until  it  has 
given  reasonable  notice  that  it  will  be  dis- 
continued. Ethridge  v.  Central  of  Ga.  R. 
Co.  38:  932,  71  S.  E.  1063,  136  Ga.  677. 

(Annotated) 

772.  A  railroad  company  which  is  a  com- 
mon carrier  of  passengers  and  freight,  and 
maintains  within  a  city  a  freight  line  and 
spur  tracks  to  industrial  plants,  cannot  re- 
fuse to  transport  freight  from  one  part  of 
the  system  to  another,  on  the  theory  that 
they  are  within  its  switching  limits,  and 
that,  as  to  such  limits,  it  does  not  assume 
the  duty  of  a  common  carrier.  Higdon  v. 
Louisville  &  N.  R.  Co.  33:  442,  135  S.  W. 
768,  143  Ky.  73.  (Annotated) 

773.  A  railroad  company  cannot,  by  refus- 
ing to  haul  coal  from  a  mine  to  industrial 
plants  connected  by  belt  lines,  to  spur  tracks 
within  the  city,  when  it  hauls  other  com- 
modities to  such  points,  establish  the  right 
to  refuse  to  perform  its  duty  as  a  common 
carrier,  when  such  service  is  demanded. 
Higdon  V.  Louisville  &  N.  R.  Co.  33:  442, 
135  S.  W.  768,  143  Ky.  73. 

Digest  a-52  I^R.A.(N.S.) 


774.  The  fact  that  a  railroad  company 
will  receive  a  transportation  charge  on  a 
finished  product,  the  raw  material  for  which 
it  hauls  from  a  warehouse  to  a  mill  within 
the  limits  of  a  city,  while  it  will  not  secure 
such  charge  in  case  of  coal  hauled  from  a 
mine  witliin  the  city  to  the  mill,  does  not  ' 
justify  its  refusing  to  haul  the  coal,  and 
performing  the  service  with  respect  to  the 
raw   material.     Higdon   v.   Louisville   &  N, 

R.  Co.  33:  442,  135  S.  VV.  768,  143  Ky.  73. 

775.  One  who  has  secured  the  sole  right 
to  sell  the  product  of  a  mine  in  a  certain 
city  cannot  hold  a  railroad  company  liable 
in  damages  for  refusing  to  haul  coal  for 
him,  where  the  mine  was  required  to  fill 
his  orders  only  after  other  contracts  were 
cared  for,  and  it  does  not  appear  that  the 
railroad  company's  refusal  caused  him  any 
loss  because  of  inability  to  fill  orders  taken 
under  his  contract  with  the  mine,  which  it 
was  ready  to  fill.  Higdon  v.  Louisville  & 
N.  R.  Co.  33:  442,  135  S.  W.  768,  143  Ky.  73. 

776.  A  coal  operator  does  not  lose  his 
rights  under  W.  Va.  Code  1906,  §  2364,  which 
provides  that  railroad  corporations  shall 
without  discrimination  make  reasonable 
provision  for  the  transportation  of  coal 
mined  and  coke  manufactured  and  offered 
for  transportation  along  their  lines,  and  im- 
poses a  penalty  for  violation  of  the  act, 
merely  because  negotiations  for  a  contract 
for  the  transportation  of  his  coal  have 
failed,  as  the  act  is  mandatory.  State  ex 
rel.  Mt.  Hope  Coal  Co.  v.  White  Oak  R.  Co. 
28:  1013,  64  S.  E.  630,  65  W.  Va.  15. 
Rule  as  to  time  for  delivery  to  car- 
rier. 

777.  A  rule  of  an  express  company  re- 
quiring it  to  refuse  to  receive  packages  of 
specie  and  currency  for  transportation  from 
a  bank  on  the  day  preceding  the  departure 
of  the  only  trains  which  carry  express  mat" 
ter  to  the  destination  of  the  packages,  and 
which  leave  at  various  times  between  6:29 
and  8  o'clock  a.  m.,  is  not  unreasonable,  un- 
lawful, or  unjust,  where  the  bank  has  ade- 
quate facilities  for  safely  keeping  the  pack- 
ages over  night,  while  the  express  company 
has  not.  Piatt  v.  Lecocq,  15:  558,  158  Fed 
723,  85  C.  C.  A.  621.  (Annotated) 
Wliat  justifies   refusal. 

778.  A  transportation  of  intoxicating 
liquor  from  a  place  of  sale  in  one  state  to 
the  residence  of  a  purchaser  in  another, 
which  is  designed  to  be  a  continuous  pas- 
sage, is  interstate  commerce,  although  it  is 
to  go  over  the  lines  of  several  connecting 
carriers,  and  therefore,  an  express  company 
cannot  refuse  to  receive  from  a  boat  a  pack- 
age at  a  point  within  the  state  of  destina- 
tion to  complete  the  transportation,  al- 
though a  statute  forbids  any  person  to  as- 
sist either  seller  or  purchaser  in  effecting 
a  sale  of  liquor  within  the  state,  Ameri- 
can Exp,  Co.  V.  Beer,  45:  120,  61  So.  306, 
104  Miss.  247.  (Annotated) 

779.  A  common  carrier  able  and  accus- 
tomed to  transport  intoxicating  liquors 
from  one  city  to  another  and  to  deliver  them 
to  the  consignees  cannot  lawfully  refuse  to 
do  so  merely  because  of  the  passage  of  an 


CARRIERS,    III.  c. 


411 


invalid  municipal  ordinance  imposing  a 
license  tax  upon  such  deliveries.  Southern 
Exp.  Co.  V.  K.  M.  Rose  Co.  5:  619,  53  S.  E. 
185,  124  Ga.  581. 

780.  A  state  statute  forbidding  carriers  to 
bring  intoxicating  liquors  into  localities 
where  prohibition- laws  exist  is  no  defense 
to  a  proceeding  instituted  in  a  suit  against 
the  carrier  to  compel  it  to  accept  liquors  for 
transportation  to  such  localities,  and  it  is 
immaterial  that  the  carrier  was  chartered 
in  the  former  state  and  has  covenanted  to 
obey  its  laws.  Louisville  &  N,  R.  Co.  v,  F. 
W.  Cook  Brew.  Co.  40:  798,  172  Fed.  117,  96 
C.  C.  A.  322.  (Annotated) 

781.  A  rule  of  a  carrier  that  it  will  not 
carry  intoxicating  liquors  to  dry  counties  of 
a  state,  when  it  undertakes  to  carry  to  wet 
counties,  is  unreasonable  and  void.  Louis- 
ville &  N.  R.  Co.  V.  F.  W.  Cook  Brew.  Co. 
40:  798,  172  Fed.  117,  96  C.  C.  A.  322. 

782.  A  carrier  will  not  be  subject  to  the 
statutory  penalty  for  refusal  to  accept  prop- 
erty for  transportation  if  the  refusal  is  due 
to  a  strike  which  prevents  its  forwarding 
the  property  should  it  be  received.  Murphy 
Hardware  Co.  v.  Southern  R.  Co.  22:  1200, 
64  S.  E.  873,  150  N.  C.  703.         (Annotated) 

783.  A  navigation  company  whose  charter 
confers  no  power  of  eminent  domain,  nor 
imposes  any  public  duties,  may  decline  to 
receive  goods  in  excess  of  its  carriage  capac- 
ity, and  may  select  the  character  of  goods 
it  proposes  to  carry,  or  discontinue  to  carry 
any  particular  commodity,  since  it  is  a  pub- 
lic carrier  only  as  to  the  goods  it  proposes 
to  carry.  Ocean  Steamship  Co.  v.  Savan- 
nah Locomotive  Works  &  S.  Co.  20:  867,  63 
S.  E.  577,  131  Ga.  831. 

Liability  for  loss  resulting   from   re- 
fusal. 

784.  A  carrier  which  has  discontinued 
without  reasonable  notice,  a  custom  for  re- 
ceiving for  transportation  wood  corded 
along  its  track  at  places  not  regular  sta- 
tions, is  liable  for  special  damages  incurred 
by  a  shipper  in  cutting  and  cording  wood 
for  shipment  in  reliance  upon  such  custom, 
upon  a  refusal  by  the  carrier  to  transport 
such  wood.  Ethridge  v.  Central  of  Ga.  R. 
Co.  38:  932,  71  S.  E.  1063,  136  Ga.  677. 

785.  To  entitle  a  shipper  to  special  dam- 
ages because  of  the  discontinuance  without 
reasonable  notice  by  a  carrier,  of  its  cus- 
tom to  receive  for  transportation  wood, 
corded  along  its  track  at  points  where  it 
maintains  no  station,  it  is  not  obligatory 
on  the  shipper  actually  to  deliver  the  wood 
thus  prepared  for  transportation  at  the 
point  on  the  track  where  the  carrier  had 
been  accustomed  to  receive  it,  when  he  has 
offered  to  do  so,  and  been  notified  by  the 
carrier  that  it  will  not  receive  for  ship- 
ment the  wood  when  so  delivered.  Eth- 
ridge V.  Central  of  Ga.  R.  Co.  38:  932,  71 
S.  E.   1063,  136  Ga.  6"77. 

Ri^ht  to  demand  inspection. 

786.  If  a  carrier  believes,  upon  reason- 
able grounds,  that  an  article  tendered  to  it 
for  transportation  is  contraband,  it  may  re- 
quire reasonable  assurance  that  it  is  not; 
and,  if  an  inspection  is  reasonable  and  prac- 
Digest  1-52  Ii.R.A.(N.S.) 


ticable  under  the  circumstances,  it  may  de- 
mand an  inspection.  Adams  Exp.  Co.  v. 
Com.  18:  1 182,  112  S.  W.  577,  129  Ky.  420. 
787.  Where  a  carrier  is  forbidden  by  stat- 
ute to  transport  intoxicating  liquors  with- 
out a  permit,  he  may  use  reasonable  efforts 
by  the  establishment  and  publication  of 
general  rules,  by  sufficient  inquiry,  or,  in 
particular  cases,  by  inspection  of  packages 
or  otherwise,  to 'ascertain  whether  or  not 
intoxicating  liquors  constitute  any  part 
of  the  goods  offered  for  transportation,  and 
refuse  to  handle  any  as  to  which  this  right 
is  denied.  Com.  v.  Mixer,  31:  467,  93  N. 
E.  249,  207  Mass.  141. 

c.  Loss  of,  or  injury  to,  property. 

(See  also  Carriers,  II,  b,  3,  in  Digest  L.R.A. 
1-10.) 

Termination  of  liability  for,  see  infra,  III. 

d,  2. 
Loss  of  or  injury  to   live  'stock,  see  infra, 

IIL  f. 
Stipulations  to  limit  liability,  see  infra,  III. 

g- 

Perils  excepted  by  contract  of  carriage,  see 
infra,  II.  g,  5. 

Instruction  as  to,  see  Appeal  and  Erkor, 
1363. 

Measure  of  damages  for,  see  Damages,  278. 
279,  283,  289. 

Review  of  damages  on  appeal,  see  Appeal 
AND  Error,  949,  950. 

Burden  of  establishing  defense,  see  Evi- 
dence, 100,  101. 

Presumption  and  burden  of  proof  as  to 
negligence,  see  Evidence,  II.  h,  1,  b,  2. 

Admissibility  of  declarations  of  carrier's 
agent,  see  Evidence,  1432. 

Relevancy  of  evidence  as  to  negligence,  see 
Evidence,   1785. 

Evidence  of  contents  of  lost  package,  see 
E%'IDENCE,    2033. 

Sufficiency  of  evidence  to  show  negligence, 
see  Evidence,  2152-2154. 

Variance  between  pleading  and  proof,  see 
Evidence,  2480. 

Action  by  wife  against  carrier  for  loss  of 
goods,  see  Husband  and  Wife,  167. 

Subrogation  of  carriers,  see  Insurance, 
VI.  f. 

Right  of  consignee  to  maintain  action  for, 
see  Parties,  27-29,  32;   Pleading,  46. 

Right  of  one  who  is  to  be  notified  of  arriv- 
al of  goods  to  maintain  action,  see 
Parties,  8. 

Sufficiency  of  defendant's  pleading  in  suit 
for  property  destroyed,  see  Pleading, 
488. 

Who  is  agent  of  consignee  for  purpose  of 
receiving  notice  of  condition  of  con- 
signment, see  Principal  and  Agent,  4. 

Proximate  cause  of  loss  of  freight,  see 
Proximate  Cause,  76,  77. 

Direction  of  verdict,  see  Trial,   741. 

Demurrer   to   evidence,   see   Trial,   796. 

Conversion  by  carrier,  see  Parties,  31;  Tro- 
ver, 23-29,  30-35,  43. 

See  also  supra,  5. 


412 


CARRIERS,  III.  c. 


788.  A  common-law  exception  relieving  a  | 
carrier  from  loss  occasioned  by  an  act  of  i 
the  shipper  or  owner  of  goods  will  not  be 
read  into  a  statute  imposing  liability  of  an 
insurer  upon  an  inland  common  carrier  for 
loss  of  property  consigned  to  it  for  carriage 
when  unaccompanied  by  the  consignor,  ex- 
cept for  loss  resulting  from  certain  specified 
causes.  Duncan  v.  Great  Northern  R.  Co. 
19:  952,  118  N.  W.  826,  IT-.N.  D.  610. 

789.  The  strict  rules  making  the  carrier 
an  insurer  of  freight  have  no  application 
where  the  relation  of  the  parties  is  not 
that  of  carrier  and  consignee  or  owner, 
and  in  such  cases  the  carrier  is  liable  only 
for  losses  resulting  from  its  own  negligence. 
Kansas  City,  M.  &  O.  R.  Co.  v.  Cox,  32: 
313,  108  Pac.  380,  25  Okla.  774, 

790.  Leaving  an  express  package  in  the 
freight  room  of  a  railway  station  at  which 
an  express  office  is  maintained,  instead  of 
in  a  room  in  which  such  packages  are  usual- 
ly placed,  neither  continues  or  extends  the 
liability  of  the  express  company  as  a  car- 
rier, nor  charges  it  with  negligence  as  a 
warehouseman.  Hutchinson  v.  United  States 
Exp.  Co.  14:  393,  59  S.  E.  949,  63  W.  Va.  128. 

791.  A  carrier  who  fails  to  comply  with 
its  undertaking  to  transport  goods  from  a 
foreign  country  and  deliver  them  in  bond  at 
an  inland  port  of  entry,  clearing  them  at 
the  port  of  first  arrival,  by  failure  to  pro- 
cure such  clearance,  is  liable  for  injury  to 
the  goods  while  detained  at  such  port,  not 
arising  from  inherent  quality  of,  or  defect 
in,  the  goods,  the  act  of  God,  of  the  owner, 
or  of  the  public  enemy.  J.  H.  Cownie  Glove 
Co.  V.  Merchants'  Dispatch  Transp.  Co. 
4:  1060,  106  N.  W.  749,  130  Iowa,  327. 

(Annotated) 

792.  It  is  the  duty  of  a  carrier  with  re- 
spect to  goods  caught  in  a  flood,  but  not 
destroyed  thereby,  to  show  the  extent  of 
damage,  and  to  account  for  any  of  such 
goods  which  have  unaccountably  disap- 
peared, and  a  failure  so  to  do  renders  the 
carrier  liable  for  their  full  value.  Chicago, 
R.  I.  &  P.  R.  Co.  V.  Logan,  Snow,  &  Co. 
29:  663,  105  Pac.  343,  23  Okla.  707. 

793.  A  consignee  is  not  bound  to  receive 
steel  shafting  so  injured  in  transportation 
as  to  be  worthless  except  for  old  iron,  and 
allow  the  value  upon  his  claim  against 
the  carrier  for  the  injury,  if,  upon  deduct- 
ing the  cost  of  handling  from  its  value  as 
old  iron,  the  net  value  becomes  too  insig- 
nificant to  count  in  the  practical  adminis- 
tration of  justice.  McGrath  v.  Charleston 
&  W.  C.  R.  Co.  42:  782,  75  S.  E.  44.  91  S. 
C.  552.  (Annotated) 

794.  A  shipper  of  a  machine  which  is  in- 
jured en  route  by  the  carrier's  negligence 
cannot  refuse  to  accept  it  after  the  carrier 
has  undertaken  to  repair  it,  merely  because 
it  does  not  work  perfectly,  if  it  can  be  re- 
paired so  that  it  will  do  so;  but  he  must 
accept  it,  and  sue  for  the  damages  caused 
by  its  being  in  imperfect  condition.  Par- 
sons V.  United  States  Express  Co.  25:  842, 
123  N.   W.   776,   144   Iowa,   745. 

(Annotated) 

795.  A  carrier  is  liable  for  the  loss, 
Digest  1-52  Ii.R.A.(N.S.) 


through  leakage,  of  flax  carried  by  it,  even 
though  the  shipper  may  not  have  fastened 
properly  inside  doors  furnished  by  the  car- 
rier for  the  purpose  of  retaining  the  flax, 
where,  after  these  doors  were  inserted,  the 
car  was  receipted  for  and  the  outside  doors 
closed  and  sealed  by  the  carrier's  agent, 
who  had  full  opportunity  to  observe,  while 
closing  the  outside  doors,  whether  the  in- 
side doors  were  properly  fastened.  Dun- 
can v.  Great  Northern  R.  Co.  19:  952,  118 
N.  W.  826,  17  N.  D.  610.  (Annotated) 

796.  An  ocean  carrier  is  not  liable  for 
injury  to  freight  due  to  the  steamer  to 
which  the  property  is  delivered  for  trans- 
portation following  ita  usual  route  to  the 
port  of  destination,  although  there  is  a 
short  route,  by  following  which  the  injury 
might  have  been  prevented.  H.  S.  Emerson 
Co.  v.  Reunis,  37:  222,  118  Pac.  631,  65 
Wash.  513. 

797.  The  mere  receipt  by  the  consignee, 
after  loss,  of  a  bill  of  lading  limiting  lia- 
bility, not  issued  on  the  shipment  of  the 
goods,  which  he  forwards  at  the  request  of 
the  carrier  after  presenting  his  claim  for 
damages,  will  not  estop  him  from  asserting 
the  common-law  liability  of  the  company, 
which  he  has  alone  relied  on.  McGregor  v. 
Oregon  R.  &  Nav.  Co.  14:  668,  93  Pac.  465, 
50  Or.  527. 

AVhen  liability  attaclies. 

798.  To  render  a  transportation  company 
liable  as  a  common  carrier  for  the  loss  or 
destruction  of  goods,  they  must  have  been 
delivered  to  and  accepted  by  it  for  trans- 
portation. Burrowes  v.  Chicago,  B.  &  Q. 
R.  Co.  34:  220,  123  N.  W.  1028,  85  Neb. 
497,  126  N.  W.  1084,  87  Neb.  142. 

799.  When  a  shipper  surrenders  the  en- 
tire custody  of  his  goods  to  a  common  car- 
rier for  immediate  transportation,  and  the 
carrier  so  accepts  them,  ^e  liability  of  the 
carrier  as  a  practical  insurer  of  the  safe 
delivery  of  the  goods  at  once  attaches; 
but  such  liability  does  not  attach  until 
the  goods  are  unconditionally  surrendered 
by  the  shipper  and  accepted  by  the  car- 
rier. Burrowes  v.  Chicago,  B.  &  Q.  R.  Co. 
34:  220,  123  N.  W.  1028,  85  Neb.  497,  126 
N.  W.  1084,  87  Neb.  142. 

800.  That  portion  of  a  parcel  of  goods 
which  has  been  loaded  into  a  car  on  one 
day,  the  remainder  of  which  is  retained 
by  the  shipper  for  his  own  use  for  the 
night,  to  be  loaded  and  forwarded  the  fol- 
lowing day,  has  not  been  delivered  to  the 
carrier  so  as  to  render  it  liable  for  its 
destruction  without  negligence  on  its  part. 
Burrowes  v.  Chicago,  B.  &  Q.  R.  Co.  34: 
220,  123  N.  W.  1028,  85  Neb.  497,  126  N.  W. 
1084,  87  Neb.  142. 

801.  Before  the  liability  of  insurer  at- 
taches to  a  carrier  for  goods  loaded  on  a 
car  placed  at  the  shipper's  disposal,  it 
must  have  been  notified  that  the  goods 
were  ready  for  shipment,  and  the  owner 
must  have  relinquished  his  control  over 
the  car.  Kansas  City,  M.  &  O.  R.  Co.  ▼. 
Cox,   32:  313,    108   Pac.   380,   25   Okla.   774. 

(Annotated) 

802.  Notifying   a  carrier   that   a  car  on 


CARRIERS,  III.  c. 


413 


a  private  switch  is  loaded  and  ready  for 
transportation  is  not  a  delivery  of  the  goods 
to  it,  so  as  to  charge  it  with  liability  as 
carrier,  where  no  bill  of  lading  has  been 
presented  for  signature,  and  its  rule  is  not 
to  move  loaded  cars  from  the  station  until 
a  bill  of  lading  has  been  signed,  and  the  car 
had  not  been  taken  into  its  possession. 
American  Lead  Pencil  Co.  v.  Nashville,  C. 
&  St.  L.  R.  Co.  32:  323,  134  S.  W.  613,  124 
Tenn.  57. 
Ijoss   1>y   embezzlement. 

803.  A  carrier  may  be  held  liable  for  the 
full  value  of  an  article  lost  while  in  its 
possession  for  transportation,  on  the  theory 
of  embezzlement,  where  it  refuses  to  give 
any  information  as  to  cause  of  loss,  but 
testifies  that  the  article  could  not  be  traced 
beyond  the  possession  of  an  agent,  whose 
name  it  refuses  to  give, — especially  where 
one  of  its  agents  had  admitted  that  the 
article  was  traced  into  the  possession  of  an 
agent  who  disappeared  and  was  prosecuted 
for  embezzlement.  Adams  Express  Co.  v. 
Berry  &  Whitmore  Co.  31:  309,  35  App.  D. 
C.  208, 

.By  fire. 
See  also  infra,  850-852,  858,  859. 

804.  A  common  carrier  is  absolutely  lia- 
ble for  the  destruction  by  fire  of  animals 
while  in  its  possession  for  transportation, 
which  is  not  caused  by  the  act  of  God  or  the 
public  enemy.  Stiles  v.  Louisville  &  N.  R. 
C0.18:  86,  110  S.  W.  820,  129  Ky.  175. 

(Annotated) 

805.  A  common  carrier  does  not  absolve 
himself  from  liability  for  goods  destroyed 
by  fire  while  in  its  possession  for  transpor- 
tation, by  showing  that  the  fire  might  have 
been  caused  by  spontaneous  combustion. 
Lloyd  V.  Haugh  &  K.  Storage  &  T.  Co.  21: 
188,  72  Atl.  516,  223  Pa.  U8. 

By  freezing. 

See  also  infra,  977. 

806.  A  carrier  is  not  negligent  in  follow- 
ing a  well-known  custom  not  to  change  the 
ventilators  on  cars  in  which  fruit  is  shipped 
unless  instructed  to  do  so  by  the  shipper,  al- 
though it  results  in  the  destruction  of  the 
fruit  by  frost.  Schwartz  v.  Erie  R.  Co.  15: 
801,  106  S.  W.  1188,  128  Ky.  22. 

(Annotated) 
By  mob. 

807.  The  rule  relieving  common  carriers 
from  liability  for  loss  through  the  public 
enejny  does  not  extend  to  relieving  it  from 
liability  for  injury  to  property  in  its  pos- 
session as  such  by  mobs  and  riots.  Pitts- 
burg, C.  C.  &  St.  L.  R.  Co.  V.  Chicago, 
44:  358,  89  N.  E.  1022,  242  111.  178. 
Failure   to   furnish    proper   car. 

Cars    for    transportation    of    livestock,    see 

infra,  897-901. 
Damages  for,  see  Damages,  283. 

808.  A  railroad  company  cannot  escape 
liability  for  injury  through  rust  to  metal 
loaded  into  one  of  its  cars,  by  the  facts  that 
the  car  was  sent  to  the  shipper  loaded  with 
Boda  ash,  the  nature  of  which  is  to  cause  the 
boards  of  the  car  to  shrink  and  expose  its 
contents  to  the  weather  and  to  cause  metal 
to  rust,  and  that  he  reloaded  it  with  the 
Digest  1-52  L.R.A.(N.S.) 


metal  without  exercising  reasonable  care  to 
ascertain  whether  or  not  it  was  in  fit  condi- 
tion for  the  intended  use.  Cleveland,  C.  C. 
&  St.  L.  R.  Co.  V.  Louisville  Tin  &  S.  Co. 
17:  1034,  111  S.  W.  358,  33  Ky.  L.  Rep.  924. 

( Annotated ) 

809.  A  carrier  cannot  devolve  upon  the 
shipper  the  duty  of  inspecting  the  car  fur-' 
nished  for  the  transportation  of  his  prop- 
erty. Blatcher  v.  Philadelphia,  B.  &  W.  R. 
Co.  16:  991,  31  App.  D.  C.  385. 

809a.  A  carrier  cannot  relieve  itself  from 
liability  to  furnish  suitable  cars,  by  pro- 
viding in  a  carriage  contract  that  the  ship- 
per must  inspect  cars,  and  that  use  of  those 
tendered  will  be  an  acknowledgment  of 
their  suitability,  and  that  he  assumes  the 
risk  of  loss  from  defects  in  cars  accepted. 
Adams  v.  Colorado  &  S.  R.  Co.  36:  412,  113 
Pac.  1010,  49  Colo.  475.  (Annotated) 

810.  A  railroad  company  is  liable  to  a 
shipper  of  dried  fruit  for  whatever  injury 
thereto  is  caused  by  the  use  of  an  unsuit- 
able car  for  its  transportation;  and  the  fact 
that  the  shipper  knew  that  such  car  was  to 
be  used  is  immaterial.  Forester  v.  South- 
ern R.  Co.  18:  508,  61  S.  E.  524,  147  N.  C. 
553.  (Annotated) 
Lack  of  proper  refrigeration. 
Sufficiency  of  evidence  to  show  negligence, 

see   Evidence,   2152. 

811.  A  carrier  which  receives  for  through 
transportation  perishable  goods  is  bound 
to  furnish  cars  adapted  to  the  preservation 
of  the  goods  during  the  time  required  for 
their  transition  from  the  place  of  ship- 
ment to  the  place  of  destination.  St.  Louis, 
I.  M.  &  S.  R.  Co.  V.  Renfroe,  10:  317,  100 
S.  W.  889,  82  Ark.  143. 

812.  A  railway  company  cannot  escape 
its  duty  of  keeping  a  refrigerator  car  neces- 
sary for  the  transportation  of  fruit  properly 
iced  by  securing  the  car  from  an  independ- 
ent contractor  and  delegating  to  it  the  duty 
of  icing  the  car.  St.  Louis,  I.  M.  &  S  R. 
Co.  V.  Renfroe,  10:  317,  100  S.  W.  889,  82 
Ark.  143.  (Annotated) 

813.  A  carrier  which  undertakes  to  carry 
perishable  commodities  in  refrigerator  cars 
is  bound  to  provide  a  supply  of  ice  ample 
for  the  purpose,  not  merely  at  the  point  of 
shipment,  but  at  such  places  along  the 
route  as  will  reasonably  insure  a  safe  trans- 
it to  the  point  of  destination  notwithstand- 
ing damp  weather  and  the  delays  ordinarily 
incident  to  railway  traffic.  C.  C.  Taft  Co. 
v.  American  Exp.  Co.  10:  614,  110  N.  W. 
897,  133  Iowa,  522. 

Act  of  God. 

What  is   an  act  of  God  excusing  loss,   see 
Act  of  God,  1. 

814.  The  carrier  is  not  liable  for  damage 
to  a  shipment  of  goods  caused  by  a  flood 
amounting  to  an  act  of  God,  where  it  ap- 
pears that  the  carrier  tendered  the  car 
containing  the  shipment,  which  was  handled 
in  due  course  of  business,  to  the  connecting 
carrier  upon  the  day  following  its  receipt, 
that  it  was  not  acaepted  by  such  carrier  be- 
cause of  its  inability  to  handle  it,  and  that, 
after  learning  that  the  car  could  not  be 
moved  from  the  danger  zon(f,  took  it  to  the 


414 


CARRIERS,  III.  d,  1. 


Bafest  place  available  for  detention,  at 
wliich  place  the  damage  occurred.  Arm- 
strong V.  Illinois  C.  K.  Co.  29:  671,  109 
Pac.  216,  26  Okla.  352,  (Annotated) 

Seizure    of   goods   by   public    authori- 
ties. 

815.  A  carrier  is  not  liable*  to  the  con- 
signor for  failure  to  deliver  to  the  consignee 
an  interstate  shipment  of  intoxicating 
liquor  which,  after  arrival  at  destination 
and  storage  in  defendant's  warehouse,  has 
been  seized  over  the  carrier's  protest  by 
officers  acting  under  warrant  issued  in  con- 
formity to  a  statute  authorizing  seizure  of 
liquors  in  possession  of  any  person  for  un- 
lawful use,  where  the  consignor  has  actual 
notice  of  such  seizure  in  time  to  bring  an 
action  to  recover  the  goods,  under  a  pro- 
vision of  such  law  requiring  the  keeping  of 
such  liquors  for  thirty  days  before  being 
destroyed  or  forfeited  to  the  state,  and  pro- 
viding that  during  that  period  any  person 
may  bring  an  action  for  its  recovery,  al- 
though such  law  may  be  unconstitutional, 
if  it  has  never  been  declared  so,  since  the 
carrier  may  presume  that  the  consignor  had 
abandoned  the  liquor  as  subject  to  the 
process  which  seized  it.  Southern  Express 
Co.  V.  Sotille  Brothers,  28:139,  67  S.  K  414, 
134  Ga.  40.  (Annotated) 
False  classification;  shipper's  fraud. 
Measure  of  damages,  see  Damages,  289. 

816.  A  carrier  may  accept  the  shipper's 
marks  as  to  the  contents  of  a  package  of- 
fered for  transportation,  and  is  not  bound 
to  inquire  particularly  about  them  in  order 
to  take  advantage  of  a  false  classification. 
Bottura  V.  Charleston  &  W.  C.  R.  Co.  2:  773, 
51  S.  E.  98^,  72  S.  C.  375. 

817.  In  the  absence  of  more  definite  infor- 
mation, a  carrier  has  the  right  to  accept  the 
shipper's  marks  as  to  the  contents  of  a 
package  offered  for  transportation,  and  is 
not  bound  to  inquire  particularly  about  it, 
in  order  to  take  advantage  of  a  false  classi- 
fication of  the  contents  thereof.  Harrington 
V.  Wabash  R.  Co.  23:  745,  122  N.  W.  14,  108 
Minn.  257. 

818.  A  neglect  on  the  part  of  a  shipper 
to  disclose  the  true  nature  of  the  contents 
of  a  package  offered  for  transportation  con- 
stitutes a  fraud  on  the  carrier,  if  there  be 
anything  in  its  form,  dimensions,  or  out- 
ward appearance  which  is  likely  to  throw 
the  carrier  off  its  guard,  whether  so  designed 
or  not,  an  intent  to  impose  upon  the  car- 
rier not  being  essential.  Harrington  v. 
Wabash  R.  Co.  23:  745,  122  N.  W.  14,  108 
Minn.  257. 

819.  A  misdescription,  without  fraudulent 
intent,  of  a  package  of  pictures  as  contain- 
ing glass,  in  a  shipment  of  household  goods, 
will  relieve  the  carrier  from  liability  for 
their  loss  above  the  value  of  a  package  of 
glass,  where  the  freight  rate  is  much  high- 
er on  pictures  than  on  glass.  Bottum  v. 
Charleston  &  W.  C.  R.  Co.  2:  773,  51  S.  E. 
985,  72  S.  C.  375.  (Annotated) 
Digest  1-52  I<.R.A.(N.S.) 


Statute   as   to    adjustment   of  loss. 

Constitutionality  of  statute  imposing  pen- 
alty for  refusal  to  pay  claim  within 
certain  time,  see  Constitutional  Law, 
332,  567. 

820.  No  penalty  for  failure  to  adjust  a 
loss  for  property  not  delivered  by  a  com- 
mon carrier  which  never  came  into  its  pos- 
session can  be  imposed  under  a  statute  re- 
quiring the  carrier  to  adjust  every  claim 
for  loss  of  property  while  in  possession  of 
such  carrier;  and  it  is  immaterial  that  the 
statute  contains  a  proviso  that  the  carrier 
shall  not  be  liable  for  property  which  never 
came  into  its  possession  if  it  complies  with 
the  requirements  of  a  certain  other  stat- 
ute. Venning  v.  Atlantic  Coast  Line  R.  Co. 
12:  12 17,  58  S.  E.  983,  78  S.  C.  42. 

d.  Delivery  by  carrier;  delay. 

1.  In  general;  refusal  to  deliver. 

(See  also  Carriers,  II.  b,  4,  »>  i'"'  Digest 
L.R.A  1-70.) 

Enjoining  carriers  from  delivering  liquor 
brought  into  prohibition  territory,  see 
Injunction,  11. 

821,  The  fact  that  a  carrier  which  has  re- 
ceived goods  for  transportation  turns  them 
over  to  another  carrier,  either  through  mis- 
take or  otherwise,  will  not  relieve  it  from 
making  delivery  to  the  consignee  to  whom 
it  has  contracted  to  deliver.  Chicago,  R.  I. 
&  P.  R.  Co.  V.  Pfeifer,  22:  1107,  119  S.  W, 
642,  90  Ark.  524. 

822."  The  fact  that  a  person  to  be  notified 
of  the  arrival  of  goods  consigned  to  ship- 
per's order  takes  them  from  the  carrier's 
possession  without  its  knowledge  or  con- 
sent, and  detains  them  in  his  own  ware- 
house, will  afford  no  justification  for  the 
carrier's  failure  to  comply  with  an  order 
from  the  shipper  diverting  the  consignment. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Schriver, 
4:  1056,   84   Pac.   119,   72   Kan.   550. 

(Annotated) 
Refusal  to  deliver. 

Duty  to  redeliver  horse  to  consignor  decid- 
ing not  to  continue  shipment,  see  infra, 

974,  975. 
Accession  justifying  refusal  to  deliver,  see 

Accession  and  Confusion,  1. 
Damages  for,  see  Damages,  280,  281, 
Necessity  of  keeping  good  tender  of  freight 

charges  where  delivery  is  refused,  see 

Tenueb,  23. 
Question   for   jury   as  to,   see   Tbial,   205, 

613. 
Refusal  to  deliver,  as  conversion,  see  Tbo- 

VER,  30-35. 
823.  The  mere  fact  that  the  express  agent 
at  the  place  of  destination  had  notice  of 
the  anticipated  arrival  of  a  dead  body  on 
a  night  train  after  office  hours,  and  that 
the  consignee  was  ready  and  willing  to  pay 
the  transportation  charges,  does  not  render 
the  carrier  liable  for  failure  to  deliver  the 
body  from  the  train  contrary  to  its  rule,  if 
no  arrangement  for  such  delivery  was  made 


CARRIERS,  III.  d,  2. 


415 


with  the  agent.     Adams  Express  Co.  v.  Hib- 
bard,  38:  432,  141  S.  W.  397,  145  Ky.  818. 

824.  An  express  company's  rule  not  to 
deliver  freight,  including  dead  bodies,  to 
consignees  in  the  night  at  stations  where  no 
night  office  is  maintained,  is  reasonable, 
and  such  company  cannot  be  held  liable  in 
damages  for  decomposition  of  a  body  car- 
ried to  the  nearest  station  maintaining  a 
night  office,  and  forwarded  to  destination 
by  a  day  train,  where,  by  prepayment  of 
charges  and  express  arrangements,  night  de- 
livery at  destination  might  have  been  se- 
cured. Adams  Express  Co,  v.  Hibbard,  38: 
432,  141  S.  W.  397,  145  Ky.  818. 

825.  An  express  company  accepting  a 
dead  body  for  transportation  to  a  station 
where  it  maintains  no  night  office,  on  a 
train  which  will  arrive  in  the  night,  is  not 
bound  to  notify  the  consignee  of  a  rule  not 
to  deliver  freight  from  night  trains  at  such 
station  except  under  special  circumstances. 
Adams  Express  Co.  v.  Hibbard,  38:  432,  141 
S.  W.  397,  145  Ky.  818.  (Annotated) 

826.  That  a  claimant  of  sacks  in  which  a 
car  load  of  flour  has  been  shipped  represents 
to  the  carrier  that  he  expects  to  be  able  to 
arrive  at  an  understanding  with  the  shipper 
within  a  few  days  will  not  justify  the  car- 
rier in  withholding  delivery  according  to  the 
shipper's  order.  Atchison,  T.  &  S.  F.  R.  Co. 
v.  Schriver,  4:  1056,  84  Pac.  119,  72  Kan. 
550. 

827.  It  is  the  duty  of  a  railway  company 
which  has  received  from  the  owner  for  car- 
riage a  quantity  of  goods  consigned  to  ship- 
per's order  to  deliver  in  accordance  with 
Buch  order,  and  only  in  accordance  with 
such  order;  and  a  failure  or  refusal,  with- 
out lawful  excuse,  so  to  deliver,  will  render 
the  carrier  liable  in  conversion  for  the  value 
of  the  goods.  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Schriver,  4:  1056,  84  Pac.  119,  72  Kan. 
550. 

828.  A  carrier,  by  wrongfully  refusing  to 
deliver  goods  upon  demand  made  promptly 
after  notice  to  the  consignee  to  remove 
them,  renders  itself  liable  for  their  de- 
struction upon  the  following  day  by  an  un- 
precedented flood,  as  the  carrier,  because  of 
the  wrongful  detention,  held  the  goods  at  its 
own  risk.  Henry  v.  Atchison,  T.  &  S.  F.  R. 
Co.  28:  1088,  109  Pac.  1005,  83  Kan.  104. 

829.  A  carrier  which,  contrary  to  instruc- 
tions, advances  C.  O.  D.  charges  for  other 
than  carriage  expenses,  cannot  withhold  the 
property  from  the  consignee  to  compel. pay- 
ment of  such  advances.  Cleveland,  C.  C.  & 
St.  L.  R.  Co.  V.  Anderson  Tool  Co.  49:  749, 
103  N.  E.  102,  180  Ind.  453. 

830.  An  express  company  which  receives 
from  a  connecting  company  a  package  to 
be  forwarded  to  destination,  without  ascer- 
taining the  contract  under  which  it  is  be- 
ing carried,  is  liable  in  damages  in  case  it 
attempts  to  enforce  an  agreement  different 
from  that  actually  made,  and  may  be  hjeld 
in  damages  for  refusing  to  deliver  the  pack- 
age without  payment  of  the  charge  by  the 
consignee,  if  by  the  original  contract  the 
government  had  undertaken  to  pay  them. 
Digest  1-52  L.R.A.(N.S.) 


Alcorn  v.   Adams   Express   Co.   52:  858,   146 
S.  W.  747,  148  Ky.  352. 

Refusal  of  consignee  to  accept  de- 
livery. 

Burden  of  showing  inability  to  communi- 
cate with  shipper  where  carrier  sells 
goods  without  notice,  eee  Evidence, 
665. 

Sale  of  goods  by  carrier  as  conversion,  see 
Trover,  26,  27,  43. 

See  also  infra,  862,  865,  877,  882. 

831.  A  railroad  company  may  sell  perish- 
able property  on  account  of  the  owner,  and 
deduct  its  charges  from  the  proceeds  of 
sale,  and  will  be  liable  for  the  balance  only, 
where  the  owner,  upon  being  notified  of 
the  danger  of  loss,  gave  notice  of  his  aban- 
donment of  the  property  and  his  intention 
to  claim  its  value,  relying  upon  an  un- 
authorized inspection,  which  the  carrier  had 
permitted  a  prospective  purchaser  to  make, 
as  constituting  a  conversion.  Dudley  v. 
Chicago,  M.  &  St.  P.  R.  Co.  3:  1135,  52  S. 
E.  718,  58  W.  Va.  604. 

832.  Corn  is  perishable  property,  within 
the  meaning  of  a  statute  directing  the 
manner  in  which  a  carrier  shall  dispose  of 
such  property  upon  refusal  of  the  consignee 
to  receive  it.  Chesapeake  &  O.  R.  Co.  v. 
Saulsberry,  12:  431,  103  S.  W.  254,  126  Ky. 
179. 

833.  A  statute  providing  that  whenever 
the  property  transported  by  a  carrier  is 
fruit,-  and  it  is  not  delivered,  the  same 
may  be  sold  at  public  outcry  on  twenty- 
four  hours'  notice  of  sale,  does  not  protect 
a  carrier  who  has  given  no  notice  of  such 
sale.  Alabama  G.  S.  R.  Co.  v.  McKenzie, 
45:  18,  77  S.  E.  647,  139  Ga.  410. 

834.  Where  a  carrier  offers  delivery  of 
goods  to  a  consignee,  who  refuses  to  accept 
them,  the  carrier  is  chargeable  with  the 
duty  of  notifying  the  shipper  with  reason- 
able promptness  that  the  goods  are  held  sub- 
ject to  his  order,  and  the  perishable  nature 
of  the  goods  will  not  excuse  the  omission 
of  the  carrier  to  give  this  notice  where 
it  is  practicable  to  do  so,  nor  will  it  au- 
thorize the  carrier  to  sell  the  goods.  Ala- 
bama G.  S.  R.  Co.  V.  McKenzie,  45:  18,  77 
S.  E,  647,  139  Ga.  410.  (Annotated) 
Delivery  forbidden  by  healtb  officers. 

835.  A  carrier  is  not  liable  for  failure  to 
deliver  to  the  consignee  a  carload  of  fruit 
which  it  is  forbidden  by  the  municipal  au- 
thorities to  deliver,  where  the  police  depart- 
ment is  at  hand  to  enforce  the  order,  al- 
though the  fruit  was  not  within  the  opera- 
tion of  an  ordinance  quarantining  against 
shipments  from  certain  ports.  Alabama  & 
V.  R.  Co.  V.  Tirelli  Bros.  21:  731,  48  So. 
962,  93  Miss.  797.  (Annotated) 

2.  Notice  of  ai'rival;  termination  of 
liahility. 

(See   also   Carriers,  II.   h,   4,  b,   in   Digest 
L.R.A.   1-70.) 

When  liability  for  baggage  ceases,  see  supra, 
696-698. 


416 


CARRIERS,  III.  d,  2. 


Reasonableness    of   time   allowed    consignee 

for  removal  of  goods,  see  Trial,  2Ul. 
See  also  infra,  919. 

836.  A  provision  in  a  bill  of  lading,  that 
"in  all  cases  and  under  all  circumstances 
the  liability  of  the  company  shall  absolute- 
ly cease  when  the  goods  are  free  of  the 
ship's  tackle,  and  thereupon  the  goods  shall 
be  at  the  risk,  for  all  purposes  and  in  every 
respect,  of  the  shipper  or  consignee,"  is 
operative  to  protect  the  carrier  from  li- 
al)ility  for  the  nondelivery  of  goods  which 
were  discharged  from  the  ship's  tackle  in- 
to lighters  sent  by  landing  agents  appoint- 
ed by  the  carrier,  but  which  by  fraud  in 
which  the  landing  agents  participated,  nev- 
er reached  the  consignee.  Chartered  Bank 
of  India,  Australia  &  China  v.  British  In- 
dia Steam  Nav.  Co.  4  B.  R.  C.  222,  [1909] 
A.  C.  369.  Also  Reported  in  78  L.  J.  P.  C. 
N.  S.  Ill,  100  L.  T.  N.  S.  661,  25  Times  L. 
R.  480,  53  Sol.  Jo.  446,  14  Com.  Cas.  189. 

( Annotated ) 

837.  The  liability  of  an  express  company 
as  carrier  and  insui-er  of  a  package  carried 
to  a  point  at  which  the  established  practice 
is  to  make  deliveries  at  the  express  office 
or  wareroom,  on  application  for  the  goods 
pursuant  to  notice  of  their  arrival,  given  by 
mail,  does  not  terminate  until  a  reasonable 
time  for  the  removal  of  the  property  has 
elapsed,  after  notice  given.  Hutchinson  v. 
United  States  Exp.  Co.  14:393,  59. S.  E. 
949,  63  VV.  Va.  128.  (Annotated) 

838.  The  liability  of  an  express  company 
as  an  insurer  of  property  intrusted  to  it  as 
a  common  carrier  is  only  incidental  to  the 
contract  of  carriage,  and  neither  begins  ear- 
lier nor  continues  longer  than  is  necessary 
to  secure  faithful  and  efficient  execution  of 
the  contract  of  carriage.  Hutchinson  v. 
United  States  Express  Co.  14:  393,  59  S.  E. 
949,  63  W.  Va.  128. 

839.  The  general  rule  that  an  express  com- 
pany must  make  delivery  of  goods  or  pack- 
ages carried  by  it,  to  the  consignee  in  per- 
son, at  his  place  of  business  or  residence,  or 
to  some  person  authorized  to  receive  the 
property,  before  its  liability  as  a  common 
carrier  and  insurer  ceases,  may  be  modified 
or, set  aside  by  usage  or  special  agreement, 
under  which  delivery  may  be  made  at  the 
express  office  or  agency.  Hutchinson  v. 
United  States  Exp.  Co.  14:  393,  59  S.  E.  949, 
63  W.  Va.  128. 

840.  The  liability  of  a  common  carrier  as 
such  continues  after  the  arrival  of  the  goods 
at  destination  until  the  consignee  has  had  a 
reasonable  time  after  notice  of  their  arrival 
to  come  for  and  remove  them.  United  Fruit 
Co.  V.  New  York  &  B.  Transp.  Line,  8:  240, 
65  Atl.  415,   104   Md.   567. 

841.  A  carrier  whose  liability  for  property 
in  its  possession  has  become  that  of  ware- 
houseman is  liable  as  a  bailee  for  hire,  un- 
less it  notifies  the  owner  that  it  will  not 
insist  upon  its  right  to  compensation,  and 
will  not  longer  hold  the  property  as  ware- 
houseman. Brunson  v.  Atlantic  Coast  Line 
R,  Co.  9:  577,  66  S.  E.  538,  76  S.  C.  9. 

( Annotated ) 
Dicest  1-52  Ii.R.A.(N.S.) 


842.  That  a  railroad  company  has  no  bag- 
gage master  at  its  station  upon  arrival  of 
a  train  carrying  a  parcel  of  baggage  for  hire 
as  freight  will  not  change  the  rule  that  the 
liability  of  carrier  changes  to  that  of  ware- 
houseman when  the  goods  reach  their  des- 
tination,— at  least  in  the  absence  of  any- 
thing to  show  that  the  goods  might  not,  up- 
on application,  have  been  obtained  from 
other  employees.  Hicks  v.  Wabash  R.  Co. 
8:  235,   108  N.  W.  534,  131  Iowa,  295. 

(Annotated) 

843.  A  delivery  of  the  contents  of  a  car  by 
the  carrier  to  the  consignee  is  effected  by 
placing  the  car  on  the  delivery  track,  and 
its  entry  by  the  consignee  for  tlie  purpose 
of  removing  the  contents  after  the  surren- 
der of  the  bill  of  lading,  although  the  prop- 
erty has  not  in  fact  been  taken  from  the 
car.  Rothchild  Bros.  v.  Northern  P.  R.  Co. 
40:  773,   123  Pac.   1011,  68  Wash.  527. 

(Annotated) 

844.  Where  a  railroad  company  places 
bulky  freight  shipped  in  carload  lots,  and 
to  be  unloaded  by  the  consignee,  at  the 
point  designated  by  the  consignee  as  the 
place  where  he  desires  to  unload  it,  and 
possession  thereof  is  turned  over  to  and 
taken  by  consignee,  so  that  the  company 
has  no  further  duty  to  perform,  its  absolute 
liability  as  carrier  terminates,  and  it  is 
liable  for  subsequent  damage  to  the  proper- 
ty only  when. such  damage  results  from  its 
negligence.  Chicago,  M.  &  St.  P.  R.  Co.  v. 
Kelm,  44:  995,  141  N.  W.  295,  121  Minn. 
343. 

845.  A  consignee  of  a  machine  shipped  in 
parts  cannot  refuse  to  accept  a  tender  by 
the  carrier  of  a  portion  of  the  parts,  al- 
though the  others  are  missing,  so  as  to  pre- 
vent the  liability  of  the  carrier  from  chan- 
gi-ng  from  that  of  insurer  to  that  of  ware- 
houseman. Louisville  &  N.  R.  Co.  v.  Gay, 
33:  303,  135  S.  W.  400,  143  Ky.  56. 

846.  A  carrier  is  not  liable  for  injury  to 
cattle  by  contagious  disease  which  makes 
its  appearance  after  the  lapse  of  the  re- 
quired number  of  days  after  their  delivery 
at  destination,  in  the  absence  of  negligence 
on  its  part.  Baltimore  &  O.  R.  Co.  v.  Dever, 
26:  712,   76   AtL   352,    112  Md.    296. 

(Annotated) 
IjOss  by  fire. 
Proximate  cause  of  loss  by  fire,  see  Peoxi- 

MATE  Cause,  76. 
See  also  supra,  754,  828;  infra,  858. 

847.  A  consignee  of  proof  spirits  which 
accepts  a  delivery  with  a  container  leaking, 
and  in  removing  the  spirits  from  the  cai 
exposes  them  to  risk  of  fire,  cannot  hold  the 
carrier  liable  for  the  loss  due  to  a  conse* 
quent  conflagration.  Rothchild  Bros.  v. 
Northern  P.  R.  Co.  40:  773,  123  Pac.  1011, 
68  Wash.  527. 

848.  A  railroad  company  is  not  liable  as 
an  insurer  for  the  car  of  a  theatrical  troupe, 
which  it  hauled  from  place  to  place,  and 
which  it  had  set  out  upon  a  siding  for  the 
benefit  and  convenience  of  the  theatrical 
proprietor,  for  use  as  a  hotel  for  his  troupe, 
although,  for  the  convenience  of  the  railroad 
company,  the  car  was  moved  from  the  place 


CARRIERS,  III.  d,  3. 


417 


where  it  was  first  located  to  another  lo- 
cation, where  it  was  destroyed  by  fire. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Homewood, 
48:  990,  134  Pac.  856,  39  Okla.  179. 

(Annotated) 

849.  A  property  owner  who  shows  failure 
of  a  carrier  to  surrender  to  him,  after  it  ar- 
rived at  destination,  his  property  which  was 
delivered  to  it  for  transportation,  is  en- 
titled to  recover  its  value  from  the  carrier, 
notwithstanding  it  has  been  destroyed  by 
fire,  unless  the  carrier  shows  that  it  was 
not  liable  as  common  carrier  because  a  rea- 
sonable time  for  removal  of  the  property 
had  elapsed  before  its  destruction,  that  it 
was  not  liable  as  warehouseman  because  it 
had  exercised  ordinary  care,  or  that  it  was 
not  liable  as  a  gratuitous  bailee  because  it 
had  used  slight  care.  Brunson  v.  Atlantic 
Coast  Line  R.  Co.  9:  577,  56  S.  E.  538,  76 
S.  C.  9. 

Necessity   of   notice. 
See  also  supra,  837. 

850.  One  who  delivers  property  to  a  car- 
rier to  be  transported  to  his  own  order  at  a 
town  where  he  does  not  reside  and  has  no 
representative  or  place  of  business,  under 
a  bill  of  lading  requiring  notice  to  be  given 
him  of  its  arrival,  is  bound  to  put  himself 
in  a  position  to  receive  the  notice.  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  Townes,  26:  572, 
124  S.  W.  1036,  93  Ark.  430.       (Annotated) 

851.  A  consignee  who  did  not  call  for  his 
mail  and  would  not  have  received  notice  of 
the  arrival  of  a  package  for  him  at  an  ex- 
press oflice  at  which  deliveries  were  made 
only  at  the  office,  after  notice  by  mail,  can- 
not, because  of  failure  to  send  such  notice, 
hold  the  express  company  liable  as  carrier 
for  the  package,  which  arrived  at  4:30  P.  M. 
on  Saturday,  and  remained  in  the  office  until 
the  following  Monday  night,  when  it  was 
stolen  without  fault  or  negligence  on  the 
part  of  the  company.  Hutchinson  v.  United 
States  Express  Co.  14:  393,  59  S.  E.  949,  63 
W.  Va.  128. 

852.  An  express  company  is  liable  as  ware- 
houseman only,  for  the  loss  of  a  package 
concerning  the  arrival  of  which  it  had  failed 
to  mail  the  customary  notice,  where  such 
neglect  was  not  the  proximate  cause. of  the 
consignee's  delay  in  removing  the  package, 
and  the  loss  would  have  occurred  if  it  had 
been  mailed,  and  sufficient  time  had  elapsed, 
before  the  loss,  for  the  recei^pt  of  a  notice 
and  the  removal  of  the  goods  if  one  had 
been  made.  Hutchinson  v.  United  States 
Exp.  Co.  14:  393,  59  S.  E.  549,  63  W.  Va. 
128. 

853.  If  an  express  company  neglects  to 
give  the  customary  notice,  by  mail,  of  the 
arrival  of  goods,  and  they  are  lost  by  reason 
of  causes  other  than  one  of  those  for  which 
the  law  makes  an  exception  in  favor  of  the 
carrier,  the  company  is  generally  held  to 
accountability  as  an  insurer.  Hutchinson  v. 
United  States  Express  Co.  14:  393,  59  S.  E. 
949,  63  W.  Va.  128. 

854.  Notice  to  the  consignee  of  the  ar- 
rival of  the  goods,  and  a  reasonable  time  to 
remove  them,  are  necessary  to  reduce  the 
liability  of  the  carrier  to  that  of  warehouse 
Digest  1-52  L.R.A.(N.S.) 


27 


man.     Poythress  v.  Durham  &  S.  R.  Co.  18: 
427,  62  S.  E.  515,  148  N.  C.  391. 

(Annotated) 
Delay  by  consignee   in  removal. 

Question  for  jury  whether  consignee  exer- 
cised reasonable  diligence,  see  Tkial, 
220. 

See  also  supra,  849. 

855.  The  liability  of  a  carrier  who  retains 
goods  at  the  request  and  risk  of  the  con- 
signee after  the  lapse  of  a  reasonable  time 
for  their  removal  is  that  of  a  warehouseman 
only.  United  Fruit  Co.  v.  New  York  &  B. 
Transp.  Line,  8:  240,  65  Atl.  415,  104  Md. 
567. 

856.  The  test  of  the  reasonable  time  for 
removal  of  goods  which  have  reached  their 
destination,  which  changes  the  liability  of 
the  carrier  from  that  of  insurer  to  that  of 
warehouseman,  is  governed  by  whether  or  not 
the  consignee  exercised  reasonable  diligence 
to  ascertain  when  the  goods  would  arrive 
or  had  arrived,  and  reasonable  diligence  in 
their  removal  after  he  received,  or,  in  exer- 
cise of  reasonable  care,  should  have  received, 
notice  of  their  arrival.  Lewis  v.  Louisville 
&  N.  R.  Co.  25:  938,  122  S.  W.  184,  135  Ky. 
361.  (Annotated) 

857.  The  lapse  of  one  and  one-half  busi- 
ness days  after  notice  to  a  consignee  of  the 
arrival  of  his  goods  terminates  the  liability 
of  the  carrier  as  such.  United  Fruit  Co. 
V.  New  York  &  B.  Transp.  Line,  8:  240,  65 
Atl.  415,  104  Md.  567.        '  (Annotated) 

858.  A  consignee  who  receives  notice  from 
the  carrier  that  his  goods  will  be  ready  for 
delivery  at  noon  on  a  certain  day  and  who 
does  not  remove  them  during  the  afternoon 
because  it  does  not  suit  his  convenience  to 
do  so  cannot  charge  the  carrier  for  their 
loss  during  the  following  night  by  fire  not 
due  to  its  negligence.  North  Yakima  Brew- 
ing &  Malting  Co.  v.  Northern  P.  R.  Co.  16: 
935,  95  Pac.  486,  49  Wash.  375. 

859.  A  consignee  did  not,  as  matter  of  law, 
have  a  reasonable  time  in  which  to  take 
goods  shipped  to  him  when  he  had  received 
no  bill  of  lading,  and  was  notified  of  their 
arrival  at  4  or  5  o'clock  p.  ii.  of  the  day 
they  reached  their  destination,  and  it  was 
customary  for  the  carrier's  office  to  close  at 
6  o'clock  p.  M.,  and  the  goods  were  burned 
in  their  car  that  night.  McGregor  v.  Ore- 
gon R.  &  Nav.  Co.  14:  668,  93  Pac.  465,  50 
Or.  527. 

3.  Misdelivery;  wrongful  delivery. 

(See  also  Carriers,  II.  b,  -i,  c,  in  Digest  L.Ii.A. 
1-70.) 

Measure  of  damages  for,  see  Damages,  290. 
See  also  infra,  949. 

860.  A  shipper  which  for  more  than  a 
year  permits  deliveries  of  goods  to  the  con- 
signee without  production  of  the  bill  of 
lading,  without  protest  or  notice  to  the 
carrier,  cannot  hold  the  carrier  liable  for 
the  value  of  goods  so  delivered  and  not  paid 
for.  Salberg  v.  Pennsylvania  R.  Co.  31  j 
1 178,  77  Atl.  1007,  228  Pa.  641. 


418 


CARRIERS,  III.  d,  4. 


4.  Time;  delay. 

(See  also  Carriers,  II.  6,  4,  d,  m  Digesi  L.R.A. 
1-70.) 

As  to  delay  by  consignee  in  removal  of 
goods,  see  supaa,  855-859. 

Delay  of  connecting  carrier  in  delivery,  see 
infra,  976. 

Penalty  for  delay  io  tranportation  of  live 
stock,  see  infra,  893. 

Imposing  penalty  on  carrier  for  detaining 
loaded  cars,  see  infra,  996,  997. 

Presumption  of  negligence  from  dierailment 
and  wreck  of  freight  train  causing  de- 
lay, see  Evidence,  390. 

Amendment  of  complaint  in  action  for  dam- 
ages for,  see  Appeal  and  Ebjiob,  1078. 

Interest  on  amount  recovered  because  of  de- 
lay, see  Intehb^st,  24. 

Who  may  maintain  action  for,  see  Parties, 
30,  31. 

Pleading  in  action  for  failure  to  make 
prompt  delivery,  see  Pleading,  263. 

Negligent  delay  as  question  for  >ury,  see 
Trial,  552,  553. 

Refusal  of  instruction,  see  Tbial,  821. 

861.  A  common  carrier  receiving,  during 
the  month  of  June,  threshing  machines 
consigned  to  an  implement  dealer  in  an- 
other state,  is  chargeable  with  the  knovvl- 

%  edge  of  seed  time  and  harvest,  and  the 
general  customs  relating  thereto,  and  will 
be  deemed  to  have  notice  that  such  ma- 
chines are  for  immediate  sale,  if  not  al- 
ready sold,  and  that  a  delay  of  delivery 
until  the  entire  threshing  season  has  passed 
will  defeat  the  purpose  of  the  shipment. 
Missouri  P.  R.  Co.  v.  Peru-VanZandt  Im- 
plement Co.  6:  1058,  85  Pac.  408,  73  Kan. 
295. 

862.  The  owTier  of  goods  in  possession  of 
a  carrier  for  transportation  cannot  refuse  to 
accept  them  because  of  delay  in  performance 
of  the  contract.  Chicago,  R.  I.  &  P.  R.  Co. 
v.  Pfeifer,  22:  1107,  119  S.  W.  642,  90  Ark. 
524. 

863.  A  carrier  which  has  not  an  equip- 
ment adequate  to  handle  the  average  bus- 
iness tendered  it  cannot  avoid  liability  for 
failure  promptly  to  transport  freight  tend- 
ered, on  the  ground  that  the  demand  for 
transportation  was  at  the  time  so  great 
that  it  could  not  have  been  foreseen,  antici- 
pated, or  provided  for.  Yazoo  &  M.  Valley 
R.  Co.  V.  Blum,  10:  432,  40  So.  748,  88  Miss. 
180.  (Annotated) 

864.  A  carrier  which  accepted  property 
for  transportation  cannot  avoid  liability  for 
delay  in  delivery  on  the  ground  that  its  fa- 
cilities were  overtaxed  by  an  unusual  press 
of  business,  where  it  knew  of  such  condition 
when  it  accepted  the  shipment.  Yazoo  & 
M.  Valley  R.  Co.  v.  Blum,  10:  432,  40  So. 
748,  88  Miss.  180.  (Annotated) 

865.  A  consignee  cannot  refuse  to  receive 
a  shipment,  and  throw  it  upon  the  hands 
of  the  carrier,  merely  because  of  the  lat- 
ter's  unreasonable  delay  in  transportation. 
Chesapeake  &  O.  R.  Co.  v.  Saulsberry,  12: 
431,  103  S.  W.  254,  126  Ky.  179. 

(Annotated) 
Digest  1-52  I<.B.A.(N.S.) 


Injuries   due   to    delay.       ^'"'f    i- 

Limitation  of  liability  for,  see  infra,  928, 
929. 

Presumption  and  burden  of  proof  as  to  dam- 
ages, see  Evidence,  529. 

Evidence  as  to,  see  Eviden<:;e,  1783. 

Measure  of  damages  for,  see  Damages,  286- 
288,  290a,  692-694. 

Failure  promptly  to  deliver  as  proximate 
cause  of  loss  by  unprecedented  flood, 
see  Proximate  Cause,  70. 

866.  A  carrier  whose  negligent  delay  in 
transporting  goods  committed  to  him  for 
that  purpose  subjects  them  to  destruction 
by  act  of  God  cannot  escape  liability  on  the 
theory  that  such  result  could  not  have  been 
anticipated.  Green-Wheeler  Shoe  Go.  v. 
Chicago,  R.  I.  &  P.  R.  Co.  5:  882,  106  N.  W. 
498,  130  Iowa,  123. 

867.  Failure  of  a  railroad  company  for 
eleven  days  to  forward  property  delivered 
to  it  for  tianspoitation  prevents  its  escap- 
ing liability  in  case  the  property  is  de- 
stroyed by  act  of  God  which  would  not  have 
resulted  had  the  property  been  forwarded 
promptly.  Alabama  G.  S.  R.  Co.  v.  Quarles, 
5:  867,  40  So.  120,  145  Ala.  436. 

868.  The  negligent  delay  of  a  carrier  in 
moving  goods  intrusted  to  it  for  transpor- 
tation, not  so  unreasonable  as  to  amount  to 
a  conversion,  will  not  render  it  liable  for 
the  loss  of  such  goods  after  they  have  been 
carried  to  their  destination,  if  they  are 
there  destroyed  by  an  act  of  God  before  de- 
livery. Rodgers  v.  Missouri  P.  R.  Co. 
10:  658,  88  Pac.  885,  75  Kan.  22'?.' 

869.  That  the  act  of  God  which  destroys 
property  in  a  carrier's  possession  for  trans- 
portation occurs  after  its  delay  in  the  trans- 
portation has  ceased  does  not  relieve  the 
carrier  from  liability  for  the  loss  if  the 
consignee  has  not  had  a  reasonable  time 
after  arrival  of  the  goods  at  destination 
within  which  to  remove  them.  Alabama 
G.  S.  R.  Co.  V.  Elliott,  9:  1264,  43  So.  738, 
150  Ala.   381. 

870.  A  railroad  company  which  accepts 
freight  without  notifying  the  shipper  of 
an  anticipated  excess  in  passenger  traffic 
which  will  require  the  services  of  freight 
crews .  to  handle  it,  and  cause  delay  in 
transportation  of  the  freight,  cannot  avoid 
liability  for  loss  caused  by  such  delay,  be- 
cause of  the  extraordinary  demand  on  its 
service  in  transporting  passengers.  Da- 
oust  V.  Chicago,  R.  I.  &  P.  R.  Co.  34:  637, 
128   N.   W.   1106,   149   Iowa,   650. 

(Annotated) 

871.  The  carrier  has  notice  of  the  likeli- 
hood of  special  injury  in  case  it  fails  to 
perform  its  contract  upon  receiving  for 
transportation  by  express  an  engine  shaft 
to  be  delivered  to  a  furniture  manufactur- 
ing company.  Harper  Furniture  Co.  v. 
Southern  Express  Co.  30:  483,  62  S.  E. 
145,  148  N.  C.  87. 

872.  A  carrier  will  be  liable  for  compen- 
satory damages  in  case  it  stops  the  opera- 
tion of  a  factory  through  neglect  promptly 
to  transport  repairs  needed  by  it,  where  it 
has  notice  that  special  injury  will  result 
from  its  neglect.     Harper  Furniture  Co.  v. 


CARRIERS.  III.  e. 


419 


Southern  Express  Co.  30:  483,  62  S.  E.  145, 
148  N.  C.  87. 

873.  The  liability  of  a  carrier  for  suf- 
fering on  the  part  of  a  sick  person,  due  to 
its  neglect  promptly  to  transport  and  de- 
liver medicine  for  him,  is  not  att'ected  by 
the  fact  that  the  order  was  given  without 
his  knowledge  or  approval.  Hendricks  v. 
American  Express  Co.  32:  867,  128  S.  W. 
1089,  138  Ky.  704. 

e.  Liahility  and  lien  for  freight 
charges;  rates. 

(See  also  Carriers,  II,  6,  5,  in  Digest  L-.R.A. 

1-10.) 

Regulation  of  freight  rates,  see  infra,  IV.  c. 

Illegal  sale  by  carrier  to  enforce  lien  for 
freight  as  ground  for  reversal  of  judg- 
ment against  shipper  for  balance  of  car- 
rier's charges,  see  Appeal  and  Error, 
1577. 

Allowance  for  freight  charges  on  property, 
sale  of  which  was  rescinded  for  fraud, 
see  Bankruptcy,  127. 

Charges  on  interstate  business,  see  Com- 
merce, 82-84. 

Necessity  of  keeping  good  tender  of  freight 
charges  where  delivery  is  refused,  see 
Tender,  23. 

When  payment  of  freight  charges  is  not 
required,  see  Trover,  33-35. 

See  also  supra,  829,  830;  infra,  976. 

874.  Dead  freight  is  not  freight  at  all, 
properly  so  called,  but  is  in  reality  dam- 
ages for  breach  of  contract,  and  therefore 
is  not  within  the  rule  that  where  the  freight 
mentioned  in  the  charter  party  is  more  than 
that  mentioned  in  the  bill  of  lading,  the  in- 
dorsee of  the  latter,  claiming  as  such,  is, 
in  the  absence  of  special  agreement  to  the 
contrary,  only  bound  to  pay  the  lesser 
freight;  nor  within  the  provision  of  the 
charter  party  that  any  difference  between 
the  freight  mentioned  in  the  charter  party 
and  that  mentioned  in  the  bill  of  lading 
shall  be  settled  at  the  port  of  lading  before 
the  vessel  sails.  Kish  v.  Taylor,  3  B.  R.  C. 
266,  [1912]  A.  C.  604.  Also  reported  in  81 
L.  J.  K.  B.  N.  S.  1027,  17  Com.  Cas.  355, 
106  L.  T.  N.  S.  900,  [1912]  W.  N.  144,  28 
Times  L.  R.  425,  56  Sol.  Jo.  518. 

875.  Since  the  effect  of  deviation  is  to  dis- 
place the  special  contract  of  affreightment, 
a  ship  owner  is  debarred  thereby  from  as- 
serting against  the  cargo  owners  a  lien  upon 
the  cargo  for  dead  freight  conferred  upon 
him  by  bills  of  lading.  Kish  v.  Taylor,  2 
B.  R.  C.  575,  [1911]  1  K.  B.  625.  Also  re- 
ported in  80  L.  J.  K.  B.  N.  S.  601,  103  L. 
T.  N.  S.  785,  27  Times  L.  R.  174,  16  Com. 
Cas.  59,  11  Asp.  Mar.  L.  Cas.  544. 

876.  An  attempt  to  hold  freight  for 
charges  exceeding  those  stated  in  the  bill  of 
lading  is  at  the  peril  of  the  carrier.  Beas- 
ley  V.  Baltimore  &  P.  R.  Co.  6:  1048,  27  App. 
D.  C.  595. 

877.  In  the  absence  of  special  contract, 
a  shipper  of  coal  in  carload  lots  to  a  con- 
signee who  declines  to  receive  it  is  liable 
Digest   1-52  I..R.A.(N.S.) 


to  the  carrier  for  the  freight,  and  also  for 
demurrage  accruing  after  he  has  notice  of 
the  consignee's  refusal.  Baltimore  &  0.  R. 
Co.  V.  Luella  Coal  &  Coke  Co.  52:  398,  81  S. 

E.  1044,  —  W.  Va.  — . 
Right   to   full  rates. 

878.  That  a  shipper  has  for  two  years 
paid  the  freight  rate  for  goods  transported 
over  a  railroad,  named  to  him  by  a  high 
railroad  ©fficial,  in  the  absence  of  a  public 
schedule,  will  not  prevent  tlie  carrier  re- 
covering from  him  the  balance  of  the 
amount  which  should  have  been  paid  under 
the  rates  established  by  the  Interstate 
Commerce  Commission.  Central  R.  Co.  v. 
Mauser,  49:  92,  88  Atl.  791,  241  Pa.  603. 

(Annotated) 

879.  A  carrier  which  accepts  for  transpor- 
portation  as  baggage,  articles  known  by  it 
to  be  freight,  assumes  the  liability  of  a 
freight  carrier,  and  may  collect  the  regular 
transportation  charge  where  the  statute 
prohibits  all  discrimination  in  rates.  St, 
Louis,  I.  M.  &  S.  R.  Co.  v.  Miller,  39:  634, 
145  S.  W.  889,  103  Ark.  37. 
Reasonableness    of    rates. 

880.  A  contract  fixing  the  value  of  prop- 
erty as  a  basis  for  freight  rates  is  not  un- 
reasonable, which  establishes  a  certain  rate 
for  property  of  a  certain  value,  and  in- 
creases the  rate  10  per  cent  for  every  rise  of 
100  per  cent  in  value  of  the  property.  Don- 
Ion  V.  Southern  P.  Co.  11:  811,  91  Pac.  603, 
151   Cal.  763. 

881.  In  determining  whether  or  not  an 
agreement  fixing  the  valuation  of  property 
as  a  basis  for  freight  rates  is  reasonable, 
the  question  whether  or  not  it  reasonably 
approximates  the  real  value  of  the  property 
is  immaterial.  Donlon  v.  Southern  P.  Co. 
11:811,  91   Pac.  603,  151  Cal.  763. 

liien   generally. 

As  to  lien  for  demurrage,  see  infra.  III.  i. 

Arrest  of  owner  of  goods  taking  them  from 

carrier  when  subject  to  lien  for  freight, 

see  False  Imprisonment,  11. 
Fraudulent  taking  of  goods  by  owner  from 

carrier  to  defeat  carrier's  lien,  as  lar-. 

ceny,  see  Larceny,  32. 
See  also  supra,  875, 

882.  A  carrier  has  a  lien  upon  a  sihip- 
ment  of  coal  which  the  consignee  refuses 
to  accept,  for  both  freight  and  demurrage 
accruing  after  notice  to  the  consignor  of 
the  consignee's  refusal.  Baltimore  &  0.  R. 
Co.  V.  Luella  Coal  &  Coke  Co.  52:  398,  81 
S.  E.  1044,  —  W.  Va.  — . 

883.  Waiver  of  a  common  carrier's  lien 
for  freight  charges  is  not  shown  by  recitals 
in  a  written  contract  for  the  transportation 
of  the  goods,  that  all  prior  agreements  con- 
cerning facilities  for  shipment  or  the  trans- 
portation or  shipment  of  the  goods  are 
merged  in  the  written  contract,  and  that  it 
contains  all  the  terms,  agreements,  and  pro- 
visions relating  in  any  manner  to  the  trans- 
portation of  the  goods.     Atchison,  T.  &  S. 

F.  R.  Co.  V.  Hinsdell,  12:  94,  90  Pac.  800, 
76  Kan.  74. 

884.  A  written  contract  for  the  trans- 
portation of  goods  by  a  common  carrier 
will   not  be  deemed  to  waive   the   carrier's 


420 


CARRIERS,   III.    f. 


lien  for  the  freight  charges,  unless  it  con- 
tains provisions  inconsistent  with  the  as- 
sertion of  such  a  lien,  or  expressly  or  by 
clear  implication  indicates  an  intention  to 
make  such  a  waiver.  Atchison,  T.  &  S.  F. 
R.  Co.  V.  Hinsdell,  12:  94,  90  Pac.  800,  7€ 
Kan.  74. 

885.  A  shipowner  is  not  debarred  from 
asserting  against  the  cargo  owner  a  lien 
for  dead  freight,  to  which  he  is  entitled  by 
the  terras  of  the  charter  party  and  bill  of 
lading,  by  the  fact  that  upon  the  failure  of 
the  charterers  to  load  a  full  cargo,  the 
master,  to  minimize  the  loss,  procured  a 
cargo  from  other  sources  and  overloaded 
the  deck  to  such  an  extent  as  to  render  the 
ship  unseaworthy,  in  consequence  of  which 
the  ship  was  obliged  to  deviate  from  her 
course.  Kish  v.  Taylor,  3  B.  R.  C.  266, 
[1912]  A.  C.  604.  Also  reported  in  81  L. 
J.  K.  B.  N.  S.  1027,  17  Com.  Cas.  355,  106 
L.  T.  N.  S.  900,  [1912]  W.  N.  144,  28  Times 
L.  R.  425,  56  Sol.  Jo.  518, 

/.  Carrying      live      stock      and      other 
animals. 

(See  also  Carriers,  II.  b,  6,  in  Digest  L.R.A. 
1-10.) 

Limitation  of  liability  for  injury,  see  infra, 
920-922,  929,  930,  933,  939. 

Time  for  giving  notice  of  injury  to,  see 
infra,  260,  953,  954. 

As  to  duty  to  furnish  cars  for  shipment  of 
live  stock,  see  infra,  957,  958. 

Duty  to  redeliver  horse  to  consignor  decid- 
ing not  to  continue  shipment,  see  infra, 
974,  975. 

Amendment  of  complaint  in  action  for  dam- 
ages for  delay,  see  Appeal  and  Ebkob, 
1078. 

Conflict  of  laws  as  to  carrier's  liability,  see 
Conflict  of  Laws,  76. 

Due  process  of  law  in  regulations  as  to,  see 
Constitutional  Law,  445,  565. 

Construction  of  provisions  in  live-stock 
shipping  contract,  see  Contract,  370. 

Duty  of  shipper  to  minimize  amount  of 
damages,  see  Damages,  25. 

Damages  for  erroneously  indicating  that 
cattle  are  from  infected  district,  see 
Damages,  25. 

Damages  for  delay  in  furnishing  cars,  see 
Damages,  282. 

Measure  of  damages  generally,  see  Dam- 
ages, 292-295. 

Judicial  notice  as  to  cars  carrying  cattle 
from  quarantine  district,  see  Evidence, 
35. 

Presumption  of  negligence,  see  Evidence, 
387,  389. 

Opinion  as  to  probability  of  cattle  freez- 
ing, see  Evidence,  1133. 

Opinion  as  to  overloading  of  cars,  see  Evi- 
dence, 1147. 

Evidence  of  admissions  by  shipper  in  action 
for  injury  to  stock,  see  Evidence,  1234. 

Evidence  as  to  amount  of  damages  for  in- 
injury  to  cattle,  see  Evidence,  1734. 

Admissibility  of  waybill,  in  action  to  re- 
cover for  injury  to  horse,  see  Evidence, 
1937. 

Digest  1-52  I<.R.A.(N.S.) 


Sufficiency  of  evidence  to  allow  that  death 
of  horse  was  caused  by  delay,  see  Evi- 
dence, 2060. 

Sufficiency  of  evidence  to  show  carrier's  neg- 
ligence, see  Evidence,  2154. 

Conversion  of  stock  by  carrier,  see  Evi- 
dence, 2462;  Trover,  25. 

Permitting  cattle  to  become  infected  with 
disease,  see  Evidence,  1785 ;  Trial,  554. 

Interest  on  amount  recovered  for  injuries 
to  stock,  see  Interest,  24. 

Departure  in  reply  in  action  against  carrier, 
see  Pleading,  554. 

Sufficiency  of  evidence  to  go  to  jury  in  ac- 
tion for  negligence  of  carrier,  see 
Trial,  141. 

Question  for  jury  as  to  shipper's  fraud,  see 
Trial,  113. 

Negligence  of  carrier  as  question  for  jury, 
see  Trial,  552-556. 

Question  for  jury  as  to  contributory  negli- 
gence of  consignor,  see  Trial,  556. 

Refusal  of  instruction,  see  Trial,  821. 

See  also  supra,  6,  7,  755,  770. 

886.  A  carrier  which  accepts  stock  for 
transportation,  knowing  that  its  facilities 
are  so  overloaded  that  loss  will  result  to 
the  shipper,  is  liable  for  the  loss.  St.  Louis 
S.  W.  R.  Co.  v.  Mitchell,  37:  546,  142  S.  W. 
168,   101  Ark.  289. 

887.  A  provision  of  a  contract  for  the 
transportation  of  live  stock,  that  the  rules, 
regulations,  and  conditions  prescribed  by  the 
carrier  shall  be  binding  on  the  shipper,  and 
that  the  signing  of  the  contract  by  the  ship- 
per shall  be  conclusive  evidence  of  his  agree- 
ment to  them,  is  invalid.  Houtz  v.  Union 
P.  R.  Co.  17:  628,  93  Pac.  439,  33  Utah,  175. 

888.  A  pencil  memorandum  on  a  bill  of 
lading  of  horses,  that  they  are  to  be  un- 
loaded for  feeding  at  a  certain  place  short 
of  destination,  does  not  require  them  to  be 
routed  through  that  place  if  another  route 
is  as  safe  and  expeditious,  so  as  to  render 
the  carrier  liable  in  damages  because  the 
consignee  wished  to  accept  delivery  of  a 
part  of  the  consignment  at  the  place  men- 
tioned, and  is  put  to  expense  to  have  the 
animals  returned  there,  Edwards  v.  Amer- 
ican Exp.  Co.  42:  705,  84  Atl.  987,  109  Me. 
444. 

889.  A  carrier  which  accepts  for  trans- 
portation a  crated  animal  cannot  avoid  lia- 
bility for  the  escape  of  the  animal,  on  the 
theory  that  the  shipper  was  negligent  with 
respect  to  the  crating.  Atlantic  Coast  Line 
R.  Co.  V.  Rice,  29:  1214,  52  So.  918,  169 
Ala.  265, 

890.  A  railroad  company  which  has  taken 
an  animal  for  transportation  on  a  regular 
freight  schedule  is  not  liable  for  its  loss  be- 
cause it  refuses  to  attach  the  car  to  a 
passenger  train  or  otherwise  hasten  the 
shipment,  upon  receiving  notice  that  the 
animal  is  ill,  where  the  train  carrying  it  \i 
substantially  on  schedule  time,  and  there 
is  no  faster  freight  train  to  which  it  could 
be  attached.  Pine  Bros.  v.  Chicago,  B.  & 
Q.  R.  Co.  39:  639,  133  N.  W,  128,  153  Iowa, 

I  1,  (Annotated) 

891.  A  railroad  company  is  liable  for  in- 


CARRIERS,  III.  f. 


421 


jury  to  live  stock  in  its  possession  for 
transportation  through  the  derailment  of 
the  train  by  the  sudden  appearance  of  a 
cow  upon  the  track  in  front  of  the  locomo- 
tive under  circumstances  which  it  could  not 
reasonably  have  anticipated,  so  that  it  was 
guilty  of  no  negligence  in  the  matter.  Cin- 
cinnati, N.  0.  &  T.  P.  R.  Co.  V.  Rankin, 
45:  529,  156  S.  W.  400,  153  Ky.  730,  157  S. 
W.  920,  154  Ky.  549. 

892.  One  who  ships  a  fat  hog  by  express 
on  a  very  hot  and  humid  day  assumes  the 
risk  of  injury  to  the  animal  by  overheating, 
Winn  V.  American  Exp.  Co.  44:  662,  140 
N.  W.  427,  159  Iowa,  309. 

Minimuxa  speed;  penalty  for  delay. 

Unconstitutionality  of  statute  as  to  others 
as  defense  to  carrier  in  action  to  re- 
cover statutory  penalty,  see  Action  or 
Suit,  48,  49. 

Statute  prescribing  minimum  rate  of  speed 
as  interference  with  interstate  com- 
merce, see  Commerce,  77,  78. 

Class  legislation  as  to,  see  Co^"STITUTIOXAL 
Law,  211. 

Due  process  in  regulations  as  to,  see  Con- 
stitutional Law,  445. 

Police  power  as  to,  see  Constitutional 
Law,  686. 

Sufficiency  of  pleading  in  action  to  recover 
penalty  for  delay,  see  Pleading,  194. 

893.  In  an  action  to  recover  the  statutory 
penalty  for  delay  in  transporting  live  stock, 
provided  by  a  statute  binding  carriers  by 
railroad,  when  carrying  stock  between  in- 
trastate points,  to  maintain  a  minimum  rate 
of  speed  from  the  initial  point  to  the  point 
of  feeding  or  destination,  or,  if  over  a  branch 
road  of  less  than  125  miles  in  length,  to 
the  first  division  station,  the  carrier  should 
not  be  charged  with  time  consumed  by  un- 
loading the  stock  for  feed,  water,  and  rest 
at  such  a  division  point,  or  for  failure 
promptly  to  continue  the  shipment  from 
that  point,  where  to  do  so  would  have  com- 
pelled the  carrier  to  operate  its  trains  and 
deliver  the  stock  on  Sunday,  in  violation  of 
law,  although  the  statute  itself  provides  no 
exceptions,  and  does  not  state  what,  if  any, 
defenses  may  or  may  not  be  available  in  an 
action  brought  thereon,  except  that  the  time 
consumed  in  picking  up  and  setting  out,  and 
loading  or  unloading  stock  at  stations,  shall 
not  be  included.  Cram  v.  Chicago,  B.  &  Q. 
R.  Co.  26:  1022,  122  N.  W.  31,  84  Neb.  607, 
123  N.  W.  1045,  85  Neb.  586. 

Injury  resulting  from  disposition  or 
viciousness   of  stock. 

894.  The  liability  of  a  common  carrier  as 
an  insurer  does  not  extend  to  any  damage 
resulting  from  an  intrinsic  cause  against 
which  care  and  foresight  could  not  provide, 
such  as  damage  resulting  from  the  nature, 
disposition,  or  viciousness  of  live  stock,  un- 
dertaken to  be  transported,  as  such  cause 
is  within  the  principle  which  excuses  com- 
mon carriers  from  loss  or  damage  resulting 
from  the  act  of  God.  Summerlin  v.  Sea- 
board Air  Line  R.  Co.  19:  191,  47  So.  557, 
56  Fla.  687. 

Condition  of  stock  yards. 

895.  It  is  the  duty  of  a  common  carrier 
Digest   1-52  L.R.A.(N.S.) 


of  live  stock  providing  stock  yards  at  its 
stations  for  the  purpose  of  receiving  cattle 
for  sliipnient,  Lo  keep  its  yards  in  a  reason- 
ably safe  condition;  and  a  failure  to  do  so 
is  negligence.  St.  Louis  &  S.  F,  R.  Co.  v. 
Beets,  10:571,  89  Pac.  683,  75  Kan.  295. 

(Annotated) 

896.  A  shipper  of  cattle  who  arranges 
with  a  station  agent  for  their  transportation, 
and  in  pursuance  of  such  arrangement  places 
them  in  the  railway  company's  stock  pen, 
may  recover  for  injuries  sustained  by  the 
stock,  which  escaped  when  one  entire  side 
of  the  pen  fell  down  because  of  the  rotten 
condition  of  the  posts  supporting  it.  St. 
Louis  &  S.  F.  R.  Co.  v.  Beets,  10:  571,  89 
Pac.  683,  75  Kan.  295.  (Annotated) 
Safety   of   cars. 

Admission  of  irrelevant  evidence,  see  Appeal 
AND  Error,  1146. 

897.  A  carrier  cannot  escape  liability  for 
suffocation  of  stock  shipped  in  a  box  car, 
because  of  its  failure  to  remove  a  few  slats 
from  the  ventilation  windows,  which  might 
have  been  done  with  slight  effort,  by  pro- 
visions in  the  bill  of  lading  requiring  the 
shipper  to  pass  upon  the  suitableness  of  the 
cai-,  and  absolving  the  carrier  from  liability 
for  injury  due  to  insufficiency  or  defective 
condition  of  the  body  of  the  car  and  in- 
juries by  suffocation.  Kime  v.  Southern  R. 
Co.  43:  617,  76  S.  E.  509,  160  N.  C.  457. 

898.  A  carrier  cannot  escape  liability  for 
permitting  stock  to  suffocate  in  a  car  by 
failure  to  open  ventilators  which  have  been 
nailed  shut,  because  it  received  the  loaded 
car  in  that  condition  from  a  connecting  car- 
rier. Kime  v.  Southern  R.  Co.  43:  617,  76 
S.  E.  509,  160  N.  C.  457.  (Annotated) 

899.  A  common  carrier  is  obliged  to  fur- 
nish reasonably  safe  and  suitable  cars  for 
the  transportation  of  horses  tendered  to  it 
for  shipment;  and  if  a  car  offered  a  shipper 
can  be  made  thus  safe  and  suitable,  only 
by  the  use  of  bedding,  it  is  the  duty  of  the 
carrier  to  furnish  that  bedding.  Allen  v. 
Chicago,  B.  &  Q.  R.  Co.  23:  278,  118  N.  W. 
655,  82  Neb.  726.  (Annotated) 

900.  A  common  carrier  is  not  relieved  of 
its  duty  to  furnish  the  bedding  required  to 
make  a  car  reasonably  safe  and  suitable  for 
the  transportation  of  horses  tendered  for 
shipment,  by  the  agreement  of  the  shipper 
to  load  and  unload  the  horses,  and  to  feed, 
water,  and  care  for  them  in  transit.  Allen 
V.  Chicago,  B.  &  Q.  R.  Co.  23:  278,  118  N. 
W.  655,  82  Neb.  726. 

901.  A  common  carrier  is  not  relieved  of 
its  duty  to  furnish  the  bedding  required  to 
make  a  car  reasonably  safe  and  suitable  for 
the  transportation  of  horses  tendered  for 
shipment,  by  the  fact  that  the  shipper's 
agent  accepted  the  car  without  proper  bed- 
ding. Allen  v.  Chicago,  B.  &  Q.  R.  Co.  23: 
278,  118  N.  W.  655,  82  Neb.  726. 
Caring  for,  during  transit. 

See  also  infra,  930. 

902.  An  interstate  carrier  of  live  stock  is 
liable  under  the  Federal  statute  for  injuries 
to  stock  in  its  possession  for  transportation, 
which  result  from  its  failure  to  supply 
proper   shelter   and   protection   at   a   point 


422 


CARRIERS,  III.  g,  1. 


where  the  stock  is  unloaded  to  be  fed  and 
watered.  CJilliland  v.  Southern  R.  Co.  27: 
1 106,  67  S.  K.  20,  85  S.  C.  27. 

903.  A  shipper  of  hogs  is  not  bound  to 
notify  the  carrier  of  the  necessity  of  shower- 
ing them  in  hot  weather,  where  it  knew  their 
condition,  and  that  showering  was  necessary 
to  protect  them  against  excessive  heat.  Peck 
V.  Chicago  G.  W.  R.  Co.  16:  883,  116  N.  W. 
1113,  138  Iowa,  187. 

904.  A  shipper  of  hogs  is  not  negligent  as 
as  matter  of  law  in  failing  to  secure  water 
to  shower  them,  when  loading,  from  neigh- 
boring wells,  where  they  are  not  heated  in 
loading,  and  he  reasonably  expects  that  fa- 
cilities for  showering  them  will  be  availa- 
ble en  route.  Peck  v.  Chicago  G.  W.  R.  Co. 
16:  883,  115  N.  W.  1113,  138  Iowa,  187. 

905.  A  railroad  company  transporting 
hogs  in  hot  weather,  which,  upon  being  no- 
tified by  the  shipper  that  they  need  shower- 
ing to  keep  them  in  condition,  neglects  to  do 
so,  is  liable  for  loss  of  animals  caused  by 
overheating.  Peck  v.  Chicago  G.  W.  R.  Co. 
16:  883,    115    N.    W.    1113,    138    Iowa,    187. 

(Annotated) 

906.  A  clause  in  a  contract  for  the  car- 
riage of  hogs,  that  the  animals  are  to  be 
loaded,  watered,  fed,  and  cared  for  by  the 
shipper,  does  not  impose  upon  him  the  duty 
of  sprinkling  them  to  keep  down  their  tem- 
perature en  route.  Peck  v.  Chicago  G.  W. 
R.  Co.  16:  883,  115  N.  W.  1113,  138  Iowa, 
187. 

907.  A  shipper  of  hogs  is  not  negligent  as 
matter  of  law  in  permitting  the  carrier  to 
incorporate  them  into  a  train  on  a  connect- 
ing line  immediately  upon  reaching  the  junc- 
tion, although  they  are  thereby  deprived  of 
the  chance  of  being  showered,  which  could 
have  been  done  had  he  waited  for  the  next 
train,  where  he  did  not  know  when  it  would 
arrive,  and  those  in  charge  of  the  train  knew 
of  the  condition  of  the  hogs.  Peek  v.  Chi- 
cago G.  W.  R.  Co.  16:  883,  115  N.  W.  1113, 
138  Iowa,  187. 

Sidetracking  car  containing. 

908.  A  carrier  which  receives  for  trans- 
portation a  carload  of  live  stock,  and  places 
it  on  a  side  track  awaiting  the  arrival  of 
a  train  of  which  the  car  is  to  become  a 
part,  is  bound  to  use  only  ordinary  and 
reasonable  care  to  avoid  injury  to  the  stock 
by  cold,  and  is  liable  for  injury  to  the  stock 
through  freezing  only  where  common  pru- 
dence would  have  required  it  to  anticipate 
that  freezing  conditions  were  probable,  and 
to  provide  against  tliem  by  sheltering  the 
animals.  Colsch  v.  Chicago,  M.  &  St.  P.  R. 
Co.  34:  1013,  127  N.  W.  198,  149  Iowa,  176. 

(Annotated) 
Necessity  of  unloading  during  transit. 

909.  A  carrier  of  live  stock  is  not  ab- 
solved from  liability  for  loss  due  to  its  re- 
fusal to  unload  when  necessary,  by  the  fact 
that  the  owner,  when  informed  of  that  fact, 
consented  that  the  stock  might  be  immedi- 
ately forwarded  from  the  point  where  un- 
loading became  necessary.  St.  Louis  S.  W. 
R.  Co.  v.  Mitchell,  37:  546,  142  S.  W.  168, 
101  Ark.  289. 

910.  Where  a  carrier  has  established  the 
Digest  1-52  I,.R.A.(N.S.) 


custom  to  unload  stock  at  a  particular  place 
for  tlieir  proper  care  and  necessary  preser- 
vation, a  shipper,  in  delivering  stock  to  the 
carrier  without  notice  of  change  of  custom, 
may  rely  on  its  being  observed,  and  the 
carrier  will  be  liable  for  loss  resulting 
from  its  breach.  St.  Louis  S.  W.  R.  Co.  v. 
Mitchell,  37:  546,  142  S.  W.  108,  101  Ark. 
289. 

Injury  to   caretaker. 
Shipper  of  stock  as  passenger,  see  supra,  83, 

84. 
Conditions  in  pass  given  caretaker  of  stock, 

see  supra,  642,  643. 
Limiting  liability  for  injury  to  shipper,  see 

supra,  670. 
Contributory  negligence,  see  supra,  324-328, 

341,  380,  381;   Teial,  393,  395,  403. 
See  also  infra,  981. 

911.  Those  in  cliarge  of  a  freight  train 
are  negligent  in  permitting  a  caretaker  of 
stock  who  is  compelled  by  illness  to  leave 
the  train  to  do  so  in  the  dark,  while  the 
car  is  standing  on  an  open  trestle.  Otto 
V.  Chicago,  B.  &  Q.  R.  Co.  31:  632,  127  N. 
W.  857,  87  Neb.  503. 

912.  A  stock  shipper  riding  on  a  freight 
train  for  the  purpose  of  caring  for  his  ship- 
ment of  live  stock  is  entitled  to  the  highest 
degree  of  care  and  protection  consistent 
with  the  proper  and  careful  operation  of 
the  train,  and  with  that  means  of  trans- 
portation. Otto  V.  Chicago,  B.  &  Q.  R.  Co. 
31 :  632,  127  N.  W.  857,  87  Neb.  503. 

(Annotated) 

913.  That  the  crew  in  charge  of  a  freight 
train  at  the  time  it  was  wrecked  did  not 
know  of  the  presence  of  a  stock  owner  in 
a  stock  car  is  immaterial  on  the  question  of 
the  liability  of  the  company  for  injury  to 
him,  if  the  company  had  notice  of  his  pres- 
ence there.  Lake  Shore  &  M.  S.  R.  Co.  v. 
Teeters,  5:  425,  77  N.  E.  599,  166  Ind.  335. 

914.  A  railway  company  is  liable  to  a 
caretaker  of  stock  for  injuries  sustained 
by  falling  from  a  walk  constructed  around 
the  top  of  the  railroad  cattle  pens  and 
which  gave  way  because  of  a  decayed  and 
defective  support,  while  he  was  engaged  in 
inspecting  the  cattle  which  were  being  fed 
and  watered,  where  the  defect  was  known 
to  the  company  or  was  patent,  and  had  ex- 
isted so  long  that  notice  of  it  might  reason- 
ably be  inferred.  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Allen,  10:  576,  88  Pac.  966,  75  Kan. 
190.  (Annotated) 

g.  Stipulations  as  to  liability. 

1.  In  general. 

(See  also  Carriers,  II.  b,  7,  a,  in  Digest 
L.R.A.  1-10.) 

As  to  passengers,  see  supra,  II.  m,  6. 

As  to  baggage,  see  supra,  II.  o,  5. 

Prohibition  against,  as  interference  with  In- 
terstate commerce,  see  Commebce,  85- 
87. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  50,  52-55. 


CARRIERS,  III.  g,  2. 


423 


Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  447. 

Ratification  by  shipper  of  contract  limiting 
liability,  see  Contracts,  561,  562. 

Duress  in  obtaining  signature  to  contract 
limiting  liability,  see  Duress,  7. 

Estoppel  to  deny  validity  of,  see  Estoppel, 
232. 

Burden  of  proving  shipper's  assent  to,  see 
Evidence,  167. 

Burden  of  proving  validity  and  reasonable- 
ness of,  see  Evidence,  528. 

Necessity  of  pleading  noncompliance  by 
shipper  with  contract,  see  Pleading, 
465. 

Limitation  of  liability  of  vessel  owner,  see 
Shipping,  I. 

By  telegraph  company,  see  Telegraphs,  II. 

Question  for  jury  as  to,  see  Trial,  609,  610. 

Right  to  establish  defense  of,  on  cross- 
examination  of  plaintiff,  see  Wit- 
nesses, 90. 

See  also  supra,  797,  809a,  836. 

915.  A  common-law  doctrine  holding  a 
common  carrier  to  the  liability  of  an  in- 
surer does  not  preclude  the  parties  to  the 
shipment  from  entering  into  a  contract  re- 
ferring to  the  carrier's  liability.  Summer- 
lin  v.  Seaboard  Air  Line  R.  Co.  ig:  igi,  47 
So.  557,  56  Fla.  687. 

916.  Since  the  performance  by  a  carrier 
of  his  implied  undertaking  not  to  deviate 
is  a  condition  precedent  to  his  right  to  avail 
himself  of  contractual  limitations  of  his  lia- 
bility, it  is  not  necessary,  in  order  to  de- 
prive him  of  the  benefit  of  such  stipulations, 
to  trace  the  loss  which  has  occurred  to  the 
deviation.  Joseph  Thorley,  Ltd.  v.  Orchis 
S.  S.  Co.  Ltd.  2  B.  R.  C.  565,  [1907]  1  K.  B. 
660.  Also  reported  in  76  L.  J.  K.  B.  N.  S. 
595,  96  L.  T.  N.  S.  488,  23  Times  L.  R.  338, 
12  Com.  Cas.  251.  (Annotated) 

917.  The  owners  of  a  vessel  which  has  de- 
viated from  the  voyage  described  in  the  bill 
of  lading  are  not  entitled  to  the  benefit  of 
a  clause  therein  exempting  them  from  lia- 
bility for  loss  arising  from  negligence  of 
stevedores  employed  by  them  in  discharging 
the  ship.  Joseph  Thorley,  Ltd.  v.  Orchis  S. 
S.  Co.  Ltd.  2  B.  R.  C.  565,  [1907]  1  K.  B. 
660.  Also  reported  in  76  L.  J.  K.  B.  N.  S. 
595,  96  L.  T.  N.  S.  488,  23  Times  L.  R.  338, 
12  Com.  Cas.  251. 

918.  A  contract  limiting  the  liability  of  a 
carrier  for  property  lost  while  in  its  pos- 
session is  void,  where  the  statute  makes 
invalid  any  contract  by  the  carrier  for  ex- 
emption from  liability  for  such  loss. 
Chesapeake  &  0.  R.  Co.  v.  Beasley,  3:  183, 
52  S.  E.  566,  104  Va.  788. 

919.  A  provision  in  a  bill  of  lading  that 
the  property  shall  be  at  the  risk  of  the  own- 
er from  the  time  of  its  arrival  at  destina- 
tion is  inoperative  under  a  constitutional 
provision  that  no  common  carrier  sliall  be 
permitted  to  contract  for  relief  from  its 
common-law  liability.  Lewis  v.  Louisville 
&  N.  R.  Co.  25:  938,  122  S.  W.  184,  135  Ky. 
361. 

920.  A  carrier  of  live  stock  may,  by 
special  contract,  so  limit  its  liability  for 
Digest  1-52  Ii.R.A.(N.S.) 


loss  or  damages  that  it  will  be  liable  only 
in  the  event  tlat  it  is  guilty  of  gross  negli- 
gence. Central  R.  Co.  v.  Hall,  4:  898,  52 
S.   E.   679,   124  Ga.   322. 

921.  A  railroad  company  may,  by  special 
contract,  limit  its  liability  to  the  owner 
of  stock  intrusted  to  it  for  transportation, 
except  as  to  limitations  relating  to  its 
liability  for  negligence  or  misconduct.  Mis- 
souri, K.  &  T.  R.  Co.  V.  Davis,  24:  866,  104 
Pac.  34,  24  Okla.  677. 

922.  A  shipper  of  cattle  may  rightfully 
refuse  to  sign  a  special  contract  limiting 
the  carrier's  common-law  liability,  if  the 
preliminary  negotiations  relating  to  the 
shipment  did  not  result  in  a  valid  agree- 
ment that  it  shall  be  made  under  such  a 
contract,  although  he  knows  the  custom  of 
carriers  to  require  written  contracts  and, 
in  the  course  of  long  experience  as  a  ship- 
per, had  always  signed  written  contracts, 
and,  following  the  negotiations,  intended  to 
sign  a  contract  of  the  kind  he  had  been 
using  for  similar  shipments,  although  he 
was  not  familiar  with  the  terms  thereof. 
St.  Louis  &  S.  F.  R.  Co.  v,  Gornaan,  28:  637, 
100  Pac.  647,  79  Kan.  643. 

Authority    of    shipper's    agent    to    as- 
sent. 

924.  A  shipper  who  by  his  authorized 
agent  fills  out  a  printed  receipt  blank  which 
is  tendered  to,  and  the  terms  thereof  ac- 
cepted by,  the  carrier,  is  bound  by  a  clause 
therein  limiting  the  carrier's  liability, 
since,  by  himself  preparing  the  receipt,  the 
shipper  made  it  his  own  contract,  notwith- 
standing the  blank  form  when  furnished  by 
the  carrier  already  contained  the  liability 
clause.  Perrin  v.  United  States  Express 
Co.    (N.   J.   Err.   &   App.)    28:  645,   74   Atl. 

462,  78  N.  J.  L.  515.  (Annotated) 

« 

2.  A8  to  negligence. 

(See   also   Carriers,   II.   b,   7,    6,   in  Digest 
L.R.A.  1-10.) 

Stipulation  by  telegraph  company,  see  Tele- 
graphs, II.  d. 
Question  for  jury  as  to,  see  Trial,  555. 
See  also  infra,  942-946. 

925.  A  common  carrier  of  goods  cannot 
legally  stipulate  for  exemption  from  lia- 
bility for  losses  occasioned  by  its  own  negli- 
gence of  that  of  its  agents  or  servants,  and 
all  stipulations  for  exemption  from  negli- 
gence, whether  gross  or  ordinary,  are  in- 
effectual. Summerlin  v.  Seaboard  Air  Line 
R.  Co.  19:  191,  47  So.  557,  56  Fla.  687. 

926.  A  carriage  contract  which  exempts 
carrier  from  liability  for  loss  occasioned  by 
other  than  its  gross  negligence,  in  attempt- 
ing to  relieve  the  company  from  all  liability 
for  loss  from  ordinary  negligence,  is  against 
public  policy,  and  void.  Houtz  v.  Union  P. 
R.  Co.  17:  628,  93  Pac.  439,  33  Utah,  175. 

927.  Where  degrees  of  negligence  are  not 
recognized,  a  contract  by  which  a  earner 
undertakes  to  relieve  itself  from  liability 
for  injury,  unless  the  same  is  the  direct  re- 
sult of   wilful   misconduct  or  actual   negli- 


424 


CARRIERS,  III.  g,  3. 


gence  on  its  part,  is  invalid  as  an  attempt 
to  relieve  itself  from  liability  for  injury 
through  ordinary  negligence.  Adams  v. 
Colorado  &  S.  R.  Co.  36:  412,  113  Pac. 
1010,  49   Colo.  475. 

928.  A  provision  in  a  carriage  contract 
that  the  shipper  assumes  all  loss  and  dam- 
ages sustained  by  reason  of  delay  in  trans- 
portation that  does  not  result  from  wilful 
misconduct  or  actual  negligence  of  the  car- 
rier is  void  as  an  attempt  to  relieve  the 
carrier  of  liability  for  negligent  delay  in 
transportation.  Adams  v.  Colorado  &  S. 
R.  Co.  36:  412,  113  Pac.   1010,  49  Colo.  47.5. 

929.  The  pr6visions  of  a  contract  whereby 
a  shipper  of  sheep  assumes  all  the  risk  ol 
damage  which  may  be  sustained  by  reason 
of  delay  in  the  transportation,  or  loss  or 
damage  for  any  other  cause  or  thing  not  re- 
sulting from  wilful  or  gross  negligence  of 
the  carrier;  and  all  provisions  exempting  or 
limiting  the  liability  for  loss  or  damage  re- 
sulting from  the  failure  to  exercise  proper 
care, — contravene  public  policy,  and  are  void. 
Houtz  v.  Union  P.  R.  Co.  17:  628,  93  Pac. 
439,  33  Utah,  175. 

930.  Where,  under  a  contract  by  a  shipper 
of  live  stock  to  load,  unload,  feed,  and 
care  for  the  stock  in  transit,  the  carrier 
cannot  relieve  itself  from  liability  for  its 
own  negligence,  it  cannot  escape  liability 
for  injury  due  to  its  failure  to  provide  a 
suitable  place  in  which  to  unload  and  care 
for  the  stock.  Gilliland  v.  Southern  R.  Co. 
27:  1 106,  67  S.  E.  20,  85  S.  C.  27. 
Assent  by  shippers;   reduced  rates. 

931.  While  a  common  carrier  cannot  limit 
his  legal  liability  by  any  notice  given,  either 
by  publication,  or  by  entry  on  receipts 
given,  or  tickets  sold,  he  may,  by  special 
contract,  relieve  himself  of  his  common- 
law  liability  as  an  insurer,  and  may*  con- 
tract against  liability  arising  from  cer- 
tain losses  which  do  not  involve  negligence 
on  the  part  of  himself  or  his  servants;  but 
he  cannot,  even  by  special  contract,  exempt 
himself  from  liability  for  loss  of  goods  in- 
trusted to  him,  where  the  loss  arises  from 
such  negligence.  Central  of  Georgia  Ry.  Co. 
V.  Hall,  4:  898,  62  S.  E.  679,  124  Ga.  322. 

3.   As  to   amount. 

(See  also  Carriers,  II.  b,  7,  c,  in  Digest 
L.R.A.  1-10.) 

Prohibition  against,  as  interference  with 
interstate  commerce,  see  Commerce, 
85-87. 

Stipulation  by  telegraph  company,  see 
Telegraphs,  II.  d. 

Question  for  jury  as  to,  see  Trial,  611. 

932.  Inquiry  as  to  the  actual  value  of  an 
interstate  shipment  is  not  vital  to  the  fair- 
ness, under  the  Carmack  amendment  of 
June  29,  1906,  to  the  act  of  February  4, 
1887,  §  20,  of  a  stipulation  in  the  carrier's 
receipt,  limiting  its  liability  to  the  agreed 
or  declared  value,  where  such  receipt,  as 
well  as  the  published  rates  on  file  with  the 
Interstate  Commerce  Commission,  plainly 
Digest  1-52  I<.R.A.(N.S.) 


show  that  the  rate  charged  was  based  upon 

value.       Adams     Exp.     Co.     v.     Croninger, 

44:  257,   33    Sup.    Ct.    Rep.    148,   226   U.   S. 

491,  57  L.  ed.  314. 

Assent    of   shipper;    reduced    rates. 

In  case  of  negligence,  see  infra,  942,  943, 
945,  946. 

Incorporating  into  contract  of  carriage  ex- 
trinsic document  showing  valuation  of 
property,  see  Contracts,  336. 

Effect  of  contract  limiting  liability  on 
measure  of  damages  for  injury,  see 
Damages,  294. 

Presumption  of  shipper's  knowledge  that 
rate  was  based  upon  value  of  shipment, 
see  Evidence,  205,  206. 

933.  The  ordinary  rule  of  damages  will 
apply  in  case  of  injury  by  a  carrier  to  live 
stock  in  its  possession  for  transportation, 
if  it  secured  the  contract  fixing  its  value 
by  fraud  or  deceit.  Cincinnati,  N.  0.  &  T. 
P.  R.  Co.  V.  Rankin,  45:  529,  156  S.  W.  400, 
153  Ky.  730,  157  S.  W.  926,  154  Ky.  549. 

934.  A  railway  company,  in  its  capacity 
as  a  common  carrier,  may,  as  a  basis  for 
fixing  its  charges  and  limiting  the  amount 
of  its  corresponding  liability,  lawfully  make 
with  a  shipper  a  contract  of  affreightment, 
embracing  an  actual  and  bona  fide  agree- 
ment as  to  the  value  of  the  property  to  be 
transported,  and  in  case  of  its  loss,  damage, 
or  destruction  the  shipper  will  be  bound  by 
the  agreed  valuation;  but  a  mere  general 
limitation  as  to  the  value,  expressed  in  a 
bill  of  lading  and  amounting  to  no  more 
than  an  arbitrary  preadjustment  of  the 
measure  of  damages,  will  not,  though  the 
shipper  assent  in  writing  to  the  terms  of 
the  document,  serve  to  exempt  a  negligent 
carrier  from  liability  for  the  true  value. 
Central  of  Georgia  Ry.  Co.  v.  Hall,  4:  898, 
52   S.   E.  679,   124  Ga.  322. 

935.  A"carrier  could,  at  common  law,  by 
a  fair,  open,  just,  and  reasonable  agreement, 
limit  the  amount  recoverable  by  a  shipper 
in  case  of  loss  or  damage,  to  an  agreed 
value,  made  for  the  purpose  of  obtaining 
the  lower  of  two  or  more  rates,  propor- 
tioned to  the  amount  of  the  risk,  Adams 
Exp.  Co.  V.  Croninger,  44:  257,  33  Sup.  Ct. 
Rep.  148,  226  U.  S.  491,  57  L.  ed.  314. 

936.  A  stipulation  in  a  carrier's  receipt 
limiting  its  liability  to  an  agreed  or  de- 
clared value,  made  to  adjust  the  rate,  is 
not  forbidden  by  the  provision  of  the  Car- 
mack  amendment  of  June  29,  1906,  to  the 
act  of  February  4,  1887,  §  20,  that  "no  con- 
tract, receipt,  rule,  or  regulation  shall  ex- 
empt such  common  carrier,  railroad,  or 
transportation  company,  from  the  liability 
hereby  imposed."  Adams  Exp.  Co.  v. 
Croninger,  44:  257,  33  Sup.  Ct.  Rep.  148, 
226  U.   S.  491,  57  L.  ed.  314. 

937.  A  contract  between  shipper  and  car- 
rier fixing  the  value  of  property  to  be  trans- 
ported as  a  basis  for  carrier's  charges, 
which  shall  be  binding  on  the  shipper  in 
case  of  loss,  is  not  forbidden  by  the  provi- 
sion of  the  Carmack  amendment  of  the  Hep- 
burn act  of  Congress,  that  no  contract  shall 
exempt  the  carrier  from  liability  for  loss  of 
property   caused  by   itself  or  by  any  con- 


CARRIERS,  III.  g,     4. 


425 


neeting    carrier.      Bernard   v.    Adams    Exp. 
Co.  28:  293,  91  N.  E.  325,  205  Mass.  254, 

(Annotated) 

938.  The  Hepburn  act  of  Congress,  mak- 
ing a  common  carrier  liable  to  tlie  bolder  of 
its  bill  of  lading  for  any  loss  of  property 
delivered  to  it  for  transportation,  and  for- 
bidding it  to  contract  for  exemption  from 
liability,  does  not  prevent  the  agreement 
upon  a  valuation  of  the  property  for  the 
purpose  of  fixing  rates  of  transportation, 
which  shall  be  binding  upon  the  shipper  in 
case  of  loss  of  the  property.  Greenwald  v. 
Barrett,  35:971,  92  N.  E.  218,  199  N.  Y. 
170. 

939.  If  a  carrier  forwards  a  car  of  horses 
by  a  train  other  tlian  that  provided  for  by 
the  contract,  upon  which  a  caretaker  was 
to  accompany  them,  he  abrogates  the  car- 
riage contract,  at  the  election  of  tlie  ship- 
per, and  deprives  himself  of  the  benefit  of 
a  provision  therein  which  fixes  the  value  of 
the  horses  for  purposes  of  transportation. 
McKahan  v.  American  Express  Co.  35: 
1046,  95  N.  E.  785,  209  Mass.  270. 

(Annotated) 

940.  The  acceptance  by  a  shipper  from 
the  carrier  of  a  receipt  stating  that  the 
value  of  the  property  shall  be  considered 
for  purposes  of  transportation  as  a  sum 
specified,  if  no  other  has  been  given  by  the 
shipper,  renders  such  valuation  binding  up- 
on the  shipper,  if  he  had  knowledge  of  the 
provision.  Greenwald  v.  Barrett,  35:  971, 
92  N.  E.  218,  199  N.  Y,  170. 

941.  A  contract  fixing,  for  purposes  of 
transportation,  the  value  of  an  article  de- 
livered to  a  carrier  for  that  purpose,  will 
not  operate  to  relieve  the  carrier  from  lia- 
bility to  pay  the  full  value  of  the  article 
if  it  was  embezzled  by  its  agent.  Adams 
Express  Co.  v.  Berry  &  Whitmore  Co.  31: 
309,  35  App.  D.  C.  208.  (Annotated) 
In    case    of   negligence. 

See  also  supra,  934. 

942.  While  a  common  carrier  cannot  con- 
tract for  immunity  from  liability  for  the 
loss  or  injury  to  property  resulting  from 
negligence,  it  may,  by  a  special  contract,  in 
consideration  of  reduced  charges  or  special 
concessions,  agree  upon  the  value  of  the 
thing  shipped  as  the  measure  of  damages, 
whether  the  loss  results  from  negligence  or 
not,  provided  the  valuation  agreed  upon  is 
not  such  as  to  render  the  contract  unreason- 
able. Alabama  G.  S.  R.  Co.  v.  Knox,  49: 
411,  63  So.  538,  184  Ala.  485. 

943.  A  carrier  cannot,  by  a  contract  fixing 
the  value  of  the  property  carried  in  relation 
to  the  amount  of  freight  paid,  limit  its  lia- 
bility pro  tanto  for  losses  caused  by  its  own 
negligence.  Southern  Exp.  Co.  v.  Owens, 
8:  369,  41  So.  752,  146  Ala.  412. 

944.  An  agreement  fixing,  for  all  purposes 
of  a  carriage  contract,  the  value  of  prop- 
erty to  be  transported  by  the  carrier  at  tlie 
amount  stated  by  the  shipper,  is  not  ob- 
noxious to  a  statute  forbidding  the  carrier 
to  contract  to  exonerate  itself  from  liability 
for  gross  negligence,  although  the  value  so  I 
fixed  is  much  less  than  the  true  value  of 
the  property;  and  the  carrier  therefore  is 
Digest  1-52  Ii.R.A.(N.S.) 


not  liable  for  a  greater  amount,  even  though 
loss  occurs  througli  its  gross  negligence. 
Donlon  v.  Southern  P.  Co.  11:  811,  dl  Pac. 
603,  151  Cal.  763. 

945.  It  is  violative  of  public  policy  for  a 
carrier,  as  a  paid  bailee,  to  limit  the  extent 
of  its  liability  for  the  negligence  of  itself  or 
its  agents  or  servants  by  an  agreed  valua- 
tion upon  consideration  of  reduced  charges 
for  carriage  of  goods,  when  such  agreed  val- 
uation is  disproportionate  to  the  real  value 
of  the  goods,  although  the  contents  of  the 
package,  or  its  real  value,  were  not  disclosed 
to  the  carrier.  Southern  Exp.  Co.  v.  Gibbs, 
18:  874,  46  So.  46.5,  155  Ala.  303. 

946.  The  approval  by  the  state  commis- 
sion of  a  freight  rate  based  on  limited 
v^aluation  of  the  property  does  not,  al- 
though the  carrier  is  bound  to  transport  at 
that  rate,  absolve  it  from  liability  for  full 
value  of  the  property  if  it  is  lost  through 
its  negligence.  Everett  v.  Norfolk  &  S.  R. 
Co.  i:  985,  50  S.  E.  557,  138  N.  C.  68. 

(Annotated) 

4.  As  to  time  of  giving  notice  or  com- 
mencing suit, 

(See  also   Carriers,  II.   6,   7,   d,   in  Digest 
L.R.A.  1-10.) 

Question   for   jury  as  to   reasonableness   of 

time    for    presentation    of    claim,    see 

Jury,  206. 
Effect  of   failure    to    plead    noncompliance 

with  provision    as    to,    see    Pleading, 

465. 
Stipulation  by  telegraph  company,  see  Tele- 

QBAPHS,  76-81. 

947.  A  provision  in  a  bill  of  lading  as  to 
notifying  the  carrier  of  injury  to  freight 
within  a  specified  time  after  delivery  does 
not  apply  if  the  carrier's  agent  is  present 
when  it  is  unloaded  and  receives  full  notice 
of  the  injury.  Kime  v.  Southern  R.  Co. 
43.:  617,  76  S.  E.  509,  160  N.  C.  457. 

948.  A  stipulation  in  a  bill  of  lading  that 
claims  for  injury  to  the  property  carried 
must  be  made  within  thirty  days  after  its 
delivery  at  destination  is  valid  and  enforce- 
able notwithstanding  a  statute  which  pro- 
vides that  no  contract  shall  exempt  a  com- 
mon carrier  from  its  liability  as  such,  which 
would  exist  had  no  contract  been  made. 
Liquid  Carbonic  Co.  v.  Norfolk  &  W.  R.  Co. 
13:  753,  58  S.  E.  659,  107  Va.  323. 

( A/motated) 

949.  A  provision  in  a  bill  of  lading  that 
any  claim  for  damages  must  be  presented 
within  a  certain  time  is  not  available  to 
the  carrier  in  case  he  delivered  the  goods 
to  the  wrong  person.  Salberg  v.  Pennsyl- 
vania R.  Co.  31:  1178,  77  Atl.  1007,  228  Pa. 
641.  (Annotated) 

950.  Stipulations  in  contracts  between 
carrier  and  shipper,  when  fairly  entered  into 
and  found  to  be  reasonable  under  all  the  cir- 
cumstances, requiring  the  presentation  of  a 
claim  for  loss,  are  not  in  all  cases  against 
public  policy,  and,  for  that  reason,  ineffect- 
ual, merely  because  the  claim  pertains  to  a 


426 


CARRIERS,  III.  g,  5,  h. 


loss  occasioned  by  negligence.  Houtz  v. 
Union  P.  R.  Co.  17:  628,  93  Pac.  439,  33 
Utah,  175. 

951.  A  stipulation  in  a  carriage  contract 
that,  unless  claims  are  presented  within  ten 
days,  they  shall  be  deemed  to  be  waived,  fol- 
lowing stipulations  relieving  the  carrier 
from  liability  for  loss  not  resulting  from  its 
wilful  or  gross  negligence,  refers  to  claims 
resulting  from  such  negligence,  and  cannot 
be  treated  merely  as  dealing  with  the  ques- 
tion of  the  presentation  of  claims  arising 
from  loss  of  all  kinds,  including  those  aris- 
ing from  ordinary  negligence,  so  as  to  give 
the  contract  the  effect,  not  of  exempting  the 
carrier  from  liability  for  loss  through  its 
ordinary  negligence,  but  as  imposing  a  con- 
dition to  the  liability  which  the  shipper 
must  (Observe  before  he  can  enforce  it. 
Houtz  v.  Union  P.  R.  Co.  17:  628,  93  Pac. 
439,  33  Utah,   175.  (Annotated) 

952.  A  condition  in  a  carriage  contract  re- 
quiring notice  of  loss  within  a  specified  time 
as  a  condition  precedent  to  recovery  for  neg- 
ligence does  not  apply  to  damages  resulting 
from  loss  due  to  the  falling  of  the  market. 
Houtz  v.  Union  P,  R.  Co.  17:  628,  93  Pac. 
439,  33  Utah,  175. 

953.  A  carrier  may  be  found  to  have 
waived  a  provision  of  the  shipping  contract 
requiring  written  notice  of  injury  to  live 
stock  before  it  is  unloaded  and  mingled  with 
other  stock,  if,  after  it  is  so  mingled,  it 
directs  the  shipper  to  have  the  damages  ap- 
praised by  a  veterinary  surgeon  and  prom- 
ises to  pay  them,  with  which  direction  the 
shipper  complies.  Gilliland  v.  Southern  R. 
Co.  27:  1 106,  67-  S.  E.  20,  85  S.  C.  27. 

954.  A  railroad  company  is  not  absolved 
from  liability  for  injuries  to  mules  trans- 
ported by  it,  caused  by  the  negligence  of 
its  employees,  by  a  stipulation  in  the  ship- 
ping contract  that  it  shall  not  be  liable 
unless  written  notice  is  given  to  the  con- 
ductor of  the  train  or  to  the  nearest  sta- 
tion or  freight  agent  before  the  mules  are 
mingled  with  other  live  stock  or  are  1^- 
moved  from  the  pens  at  destination,  al- 
though written  notice  was  not  given  until 
the  day  following  the  arrival  of  the  stock, 
which  had,  upon  the  day  of  arrival,  been 
removed  from  the  carrier's  stockpens  to 
the  shipper's  barn,  which  adjoined  the  rail- 
road right  of  way,  and  was  nearer  the  depot 
than  the  stockpens,  where  the  agent,  after 
the  mules  had  been  placed  in  the  shipper's 
barn,  and  before  they  had  been  mingled 
with  other  stock,  inspected  them  and  made 
memoranda  of  the  injuries,  both  on  the  day 
of  arrival  and  on  the  following  day  after 
service  of  the  notice,  since,  as  such  notice 
constituted  a  substantial  compliance  with 
the  contract,  it  was  sufficient.  Missouri, 
K.  &  T.  R.  Co.  V.  Davis,  24:  866,  104  Pac. 
34,  24  Okla.  677.  (Annotated) 
Commencing   suit. 

Power  of  agent  to  waive  provisions  as  to,  see 
supra,  755. 

955.  A  carrier  waives  a  provision  in  a  car- 
riage contract  limiting  the  time  in  which 
suit  may  be  brought  for  its  breach,  by  con- 
suming more  than  the  specified  time  in  in- 
Digest  1-52  I..R.A.(ir.S.) 


vestigating  the  claim,  and  promising,  be- 
fore the  expiration  of  such  period,  that  it 
would  not  take  advantage  of  the  limitation 
if  the  claim  was  rejected.  Adams  v.  Colo- 
rado &  S.  R.  Co.  36:  412,  113  Pac.  1010,  49 
Colo.  475. 

5.  Excepted  perils. 

(See  Carriers,  II.  h,  7,  e,  in  Digest  L.R.A. 
1-70.) 

h.  Contract  or  duty  to  furnish  cars. 

(See  also  Carriers,  II.  6,  8,  in  Digest  L.R.A. 
1-10.) 

Duty  to  receive  and  transport  freight  of- 
fered, see  supra.  III.  b. 

Liability  for  loss  because  of  failure  to  fur- 
nish proper  cars,  see  supra,  808-810. 

Writ  of  error  from  United  States  Supreme 
Court  in  action  to  penalize  carrier  for 
failure  to  furnish  cars,  see  Appeal  and 
Error,  65. 

Penalty  for  failure  to  furnish  as  regulation 
of  commerce,   see   Commerce,   88-93. 

Measure  of  damages  for  breach  of  duty,  see 
Damages,  282-284. 

Loss  of  profits  as  element  of  damages,  see 
Damages,  695. 

Exclusiveness  of  statutory  remedy  for  fail- 
ure to  furnish  cars,  see  Election  of 
Remedies,  11. 

Acceptance  by  company  of  requisition  for 
cars  as  contract,  breach  of  which  gives 
a  cause  of  action  ex  contractu,  see 
Election  of  Remedies,  15. 

Evidence  to  show  negligence  in  failing  to 
furnish  cars  according  to  requisition, 
see  Evidence,  1784. 

Depriving  employees  of  work  by  failure  to 
deliver  cars,  see  Injunction,  250. 

Who  may  maintain  action  for  carrier's  fail- 
ure to  deliver  cars  as  promised,  see  Par- 
ties, 81. 

Allegations  as  to,  see  Pleading,  421,  422. 

Refusal  of  instruction  requested  by  carrier 
as  to  contract  to  furnish  cars,  see 
Trial,  850. 

See  also  supra,  752. 

956.  A  railroad  does  not  comply  with  its 
duty  to  provide  itself  with  cars  suflacient  to 
transport  the  coal  mined  along  its  lines,  by 
providing  sufficient  cars  to  transport  all 
the  coal  mined  should  the  transportation  be 
equally  distributed  throughout  the  year,  if 
they  are  totally  inadequate  to  transport 
the  coal  tendered  during  the  fall  and-  win- 
ter months,  when  the  bulk  of  the  traffic  in 
that  commodity  occurs.  Illinois  C.  R.  Co.  v. 
River  &  R.  Coal  &  C.  Co.  44:  643,  150  S.  W. 
641,  150  Ky.  489.  (Annotated) 

957.  An  oral  contract  whereby  a  railroad 
company  undertakes,  through  a  station 
agent,  to  furnish  cars  for  a  shipment  of  live 
stock  at  a  specified  station  and  at  a  specified 
time,  is  not  avoided  by  a  written  contract, 
signed  by  the  shipper,  for  the  transporta- 
tion of  the  live  stock,  subsequent  to  a  breach 
of  the  oral  contract,  unless  there  is  some 


CARRIERS,  III.  i,  j,  1. 


427 


consideration  moving  to  the  shipper  as  com- 
pensation for  damages  incurred  by  him  in_ 
consequence  of  the  breacli  of  the  oral  con- 
tract. Clark  V.  Ulster  &  D.  R.  Co.  13:  164, 
81  N.  E.  766,  189  N.  Y.  93. 

958.  An  oral  contract  to  furnish  cars  for 
a  shipment  of  stock,  resulting  from  the  ship- 
per's request  for  a  car  and  the  station 
agent's  assent  thereto  and  promise  to  fur- 
nish the  car,  is  not  void  for  want  of  mutual- 
ity, since  the  shipper's  request  for  the  car 
carries  with  it,  by  implication  of  law,  an 
agreement  to  make  use  of  the  car  if  his  re- 
quest is  complied  with,  and  a  correlative 
promise  to  pay  the  carrier,  in  the  event  of 
nonuser,  whatever  loss  it  may  thereby  in- 
cur. Clark  v.  Ulster  &  D.  R.  Co.  13:  164, 
81  N.  E.  766,  189  N.  Y.  93.  (Annotated) 

959.  A  written  request  to  an  agent  of  a 
railroad  company  to  furnish  freight  cars  "at 
once"  will  be  regarded  as  equivalent  to  "im- 
mediately" or  "to-day,"  in  an  action  to  re- 
cover the  statutory  penalty  imposed  upon  a 
railroad  company  failing  to  furnish  cars 
within  a  certain  time  after  they  are  applied 
for.  Patterson  v.  Missouri  Pacific  Coal  Co. 
15:  733,  i^-i  Pac.  138,  77  Kan.  236. 

960.  A  railroad  company  which  has  ac- 
cepted a  requisition  from  a  fruit  importer 
for  cars  to  receive  the  cargoes  of  vessels  to 
arrive  during  a  certain  week  is  not  bound 
to  keep  someone  on  watch  at  places  where 
notice  of  the  arrival  of  vessels  are  reported, 
so  as  to  know  when  cars  will  be  needed. 
Di  Giorgio  Importing  &  S.  S.  Co.  v.  Pennsyl- 
vania R.  Co.  8:  108,  65  Atl.  425,  104  Md.  693. 

961.  A  railroad  company  which  has  obli- 
gated itself  to  furnish  refrigerator  cars  t© 
transport  garden  truck  to  market  cannot 
escape  liability  for  breach  of  that  duty  upon 
the  ground  that  the  crop  was  unusually 
large,  if  it  was  no  larger  than  might  reason- 
ably have  been  expected  from  the  acreage 
planted,  knowledge  of  which  the  railroad 
company  either  had,  or  had  the  means  of 
obtaining.  Atlantic  C.  L.  R.  Co.  v.  Geraty, 
20:  310,  166  Fed.  10,  91   C.  C.  A.  602. 

962.  A  railroad  company  which  owns  no 
refrigerator  cars  may  be  held  liable  for 
not  furnishing  them  to  shippers  of  garden 
truck,  if  it  led  them  to  expect  that,  if  they 
raised  the  truck,  the  refrigerator  cars  nec- 
essary for  its  proper  transportation  would 
be  furnished.  Atlantic  C.  L.  R.  Co.  v. 
Geraty,  20:  310,  166  Fed.  10,  91  C.  C.  A. 
G02.  (Annotated) 

963.  A  railroad  company  cannot  be  held 
liable  for  the  loss  resulting  from  a  few 
hours'  delay  in  furnishing  cars  to  receive 
the  cargo  of  fruit  steamers  under  a  requisi- 
tion covering  the  entire  week,  where  it  was 
not  notified  that  cars  were  needed  until  sev- 
eral hours  after  the  arrival  of  one  steamer 
and  until  a  few  minutes  before  the  arrival 
of  another,  where  the  owner  of  the  fruit 
had  been  kept  posted  of  the  progress  of 
the  vessels  after  they  were  first  sighted,  and 
therefore  might  have  notified  the  railroad 
company  of  the  exact  time  when  the  cars 
would  be  needed.  Di  Giorgio  Importing  & 
S.  S.  Co.  V.  Pennsylvania  R.  Co.  8:  108,  65 
Atl.  425,  104  Md.  693.  (Annotated) 
Digest  1-52  I..R.A.(N.S.) 


964.  To  excuse  a  carrier  from  liability 
for  damages  because  of  its  failure  to  fur- 
nish cars  as  requested  by  a  shipper  it  must, 
if  it  has  reason  to  anticipate  its  inability 
to  do  so,  advise  the  shipper  of  that  fact. 
Di  Giorgio  Importing  &  S.  S.  Co.  v.  Penn- 
sylvania R.  Co.  8:  108,  60  Atl.  425,  104  Md. 
693. 

i.  Demurrage  on  cars. 

(See  also  Carriers,  II.  6,  9,  in  Digest  L.R.A 
1-10.) 

Regulation  by  corporation  commission  of 
demurrage  charges,  see  infra,  1018. 

Illegal  sale  of  shipment  to  pay  demurrage 
as  ground  for  reversal  of  judgment 
against  shipper  for  balance  of  carrier's 
charges,  see  Appeal  and  Error,  1577. 

Power  of  state  as  to  demurrage  charges  on 
interstate  shipments,  see  Commerce,  73, 
74. 

Demurrage  on  vessel,  see  Shipping,  8-11. 

See  also  supra,  877. 

965.  A  carrier  has  no  lien  on  the  cargo 
for  demurrage  for  delay  in  unloading  at 
destination.  Nicolette  Lumber  Co.  v. 
People's  Coal  Co.  3:  327,  62  Atl.  1060,  213 
Pa.  379.  (Annotated) 

966.  A  shipper  of  carload  lots  which  the 
carrier  is  not  under  duty  to  unload  is  not 
liable  for  demurrage  upon  the  consignee's 
refusal  to  accept  the  consignment,  until 
notice  is  given  the  shipper  of  such  refusal. 
Baltimore  &  0.  R.  Co.  v.  Luella  Coal  & 
Coke  Co.  52:  398,  81  S.  E.  1044,  —  W.  Va. 


J.  Connecting  carriers. 

1.  In  general. 

(See  also  Carriers,  II.  0,  2,  a,  in  Digest 
L.R.A.  1-10.) 

Compulsory  connection  and  interchange  of 
business,  see  infra,  IV.  b. 

Prejudicial  error  in  admission  of  evidence 
in  action  against,  see  Appeal  and 
Error,  1148. 

Reversible  error  in  instruction  as  to  which 
carrier's  negligence  was  proximate 
cause  of  injury,  see  Appeal  and  Error, 
1383. 

Interference  with  interstate  commerce  by 
statute  regulating  liability  of,  see  Com- 
merce, 79-81. 

Equal  protection  of  the  laws  as  to,  see  Con- 
stitutional Law,  220. 

Denial  of  due  process  by  statute  regulating 
liability  of,  see  Constitutional  Law, 
447. 

Infringement  of  freedom  to  contract  by 
regulation  of,  see  Constituiionai. 
Law,  460. 

Costs  in  action  against  initial  carrier  for 
loss  on  connecting  line,  see  Costs  and 
Fees,  31. 

Presumption  and  burden  of  proof  as  to  lia- 
bility, see  Evidence,  382,  526. 


428 


CARRIERS,  III,  j,  1. 


Sufficiency  of  evidence  to  show  receipt  of 
package  for  transportation  by  connect- 
ing carrier,  see  Evidence,  2311. 

Proviso  in  Carmack  amendment,  see  Stat- 
utes, 238. 

Conversion  by  connecting  carrier,  see 
Trover,  34. 

See  also  supra,  830,    898. 

967.  In  the  absence  of  a  special  contract 
a  railroad  company,  by  receiving  goods  for 
transportation  over  its  own  line  and  other 
lines  therewith  connected,  is  only  bound  to 
carry  the  goods  »  er  its  own  line,  and  de- 
liver them  safely  to  the  next  connecting 
carrier.  Roy  v.  Chesapeake  &  O.  R.  Co. 
31:  1,  57  S.  E.  39,  61  W.  Va.  616. 

( Annotated ) 

968.  By  accepting  freight  marked  for  a 
particular  place,  a  carrier  is  prima  facie 
bound  to  carry  it  to  and  deliver  it  at  that 
place,  although  beyond  the  terminus  of  its 
own  line.  Wabash  R.  Co.  v.  Thomas,  7:  1041, 
78  N.  E.  777,  222  111.  337. 

969.  A  common  carrier  who  accepts  goods 
for  shipment  to  be  delivered  to  a  connecting 
carrier  will  be  liable  for  any  damages  to 
the  goods  resulting  directly  from  its  negli- 
gence, although  the  loss  may  not  actually 
occur  until  after  the  goods  are  delivered  to 
the  second  carrier.  Whitnack  v.  Chicago, 
B.  &  Q.  R.  Co.  19:  loii,  118  N.  W.  67,  82 
Neb.  464.  (Annotated) 

970.  In  an  action  against  both  initial  and 
terminal  carrier  for  damages  caused  by  neg- 
ligent delay,  although  the  initial  carrier 
had  notice  that  prompt  delivery  was  im- 
portant, and  that  loss  of  profits  would  re- 
sult from  delay,  where  all  the  delay  is 
shown  to  have  been  on  the  terminal  line, 
then,  in  the  absence  of  statute  or  contract 
to  such  effect,  the  initial  carrier  will  not 
be  held  liable  for  any  of  the  damages  re- 
sulting, although  it  may  have  failed  to 
deliver  such  special  notice,  unless  it  appears 
that  such  delay  was  the  proximate  result  of 
the  failure  to  deliver  such  notice.  Atchison, 
T.  &  S.  F.  R.  Co.  V.  St.  Louis  &  S.  F.  R. 
Co.  48:  509,  135  Pac.  353,  41  Okla.  80. 

971.  To  hold  an  initial  carrier  liable  for 
Injury  to  goods  discovered  upon  their  reach- 
ing their  final  destination,  which  were 
billed  over  the  line  of  a  connecting  carrier 
to  a  specified  place  and  lost  en  route,  where 
an  unsuccessful  attempt  to  change  the  des- 
tination through  the  initial  carrier  was 
afterwards  made,  and  after  their  arrival 
at  the  original  destination  they  were  for- 
warded by  the  connecting  carrier,  the 
owner  must  show  that  the  injury  occurred 
before  the  first  destination  was  reached. 
Sheehy  v.  Wabash  R.  Co.  38:  1126,  135  N. 
W.  655,   169  Mich.  604. 

972.  A  railroad  company  which  undertakes 
to  carry  goods  to  destination  over  the  track 

*  of  another  company,  which  it  uses  under 
an  agreement  that  while  its  trains  are  on 
such  track  they  are  under  the  control  and 
direction  of  the  servants  of  the  owner  of 
such  track,  is  liable  for  injury  to  the  prop- 
erty caused  by  the  negligence  of  such  agents 
while  the  train  is  under  their  control.  St. 
Digest  1-52  Ii.R.A.(N.S.) 


Louis  S.  W.  R.  Co.  V.  Wallace,  22:  379,  118 
_S.  W.  412,  90  Ark.  138.  (Annotated) 

973.  A  connecting  carrier  which  agrees, 
upon  being  indemnified  by  a  shipper  against 
loss  or  damage  arising  from  or  caused  by 
its  attempt  to  comply  with  his  request,  to 
act  as  his  agent  to  stop  certain  goods  in 
transit  after  they  have  left  such  carrier's 
lines,  and  return  them  to  him,  is  not  liable 
for  loss  of  the  goods  or  damage  thereto, 
occurring  on  the  return  without  its  fault 
and  not  on  its  own  line,  on  the  ground  that 
an  implied  contract  safely  to  return  the 
goods  in  consideration  of  the  payment  of 
return  freight  charges  arose  from  the  writ- 
ten contract,  as,  in  such  case,  the  carrier 
is  not  acting  as  a  common  carrier  for  the 
shipment  back  to  the  original  point,  but 
only  as  the  agent  of  the  shipper.  Erie  R. 
Co.  V.  Cappel,  22:  945,  88  N.  E.  144,  80  Ohio 
St.  128.  (Annotated) 

974.  It  is  the  duty  of  a  carrier  which  has 
transported  a  horse  to  a  connecting  point 
with  another  railroad  over  which  the  animal 
is  consigned,  to  redeliver  the  horse  to  the 
consignor  without  unreasonable  delay,  on  the 
payment  of  its  charges,  if  the  consignor  de- 
cides not  to  ship  farther.  Wente  v.  Chicago, 
B.  &  Q.  R.  Co.  15:  756,  115  N.  W.  859,  79 
Neb.  179. 

975.  The  consignor  of  a  horse  shipped  by 
a  route  which  requires  the  transportation  of 
the  animal  over  two  connecting  lines  of  rail- 
road may  decline  to  ship  further,  if  he  so 
desires,  on  the  arrival  of  the  horse  at  the 
connecting  point  of  the  railroads,  and,  upon 
payment  of  the  charge  of  the  first  carrier, 
is  entitled  to  demand  a  redelivery  of  the 
horse.  Wente  v.  Chicago,  B.  &  Q.  R.  Co. 
15:  756,  115  N.  W.  859,  79  Neb.  179. 

(Annotated) 

976.  A  terminal  carrier  is  not  liable  to 
the  consignee  in  damages  for  delay  in  de- 
livering machinery,  when  the  failure  to  de- 
liver was  due  to  the  consignee's  refusal  to 
pay  freight  charges  in  a  sum  greater  than 
that  fixed  in  the  bill  of  lading  issued  by 
the  initial  carrier,  when  the  amount  de- 
manded was  not  in  excess  of  the  legal  and 
proper  charges  according  to  the  fixed  and 
usual  rates,  and  no  contractual  relations 
existed  between  the  terminal  and  initial 
carrier  with  reference  to  transportation 
charges,  even  though  the  goods  were  ulti- 
mately delivered  to  the  consignee  upon 
payment  of  the  amount  of  freight  set  out 
in  the  bill  of  lading.  Goodin  v.  Southern 
R.  Co.  6:  1054,  54  S.  E.  720,  125  Ga.  630. 

(Annotated) 

977.  A  common  carrier  who  undertakes 
during  extreme  cold  weather,  to  carry  two 
car  loads  of  potatoes  and  deliver  them  to  a 
connecting  carrier,  the  contract  providing 
that  the  shipper  should  furnish  a  caretaker 
to  accompany  the  shipment,  and  keep  fires 
in  the  cars,  to  prevent  freezing,  is  liable 
for  loss  of  potatoes  which  became  frozen 
by  reason  of  the  cars  becoming  separated  in 
transit  on  its  lines,  whereby  the  caretaker 
is  prevented  from  attending  to  one  car  of 
the  potatoes,  even  though  they  may  not 
have  become   frozen  until   after  they  were 


CARRIERS,  III.  j,  2— IV.  a. 


429 


delivered  to  the  second  carrier.  Whitnack  v. 
Chicago,  B.  &  Q.  R.  Co.  ig:  loii,  118  N.  W. 
67,  82  Neb.  464. 

978.  The  act  of  Congress  making  initial 
carriers  liable  for  injury  on  connecting 
lines  does  not  render  the  initial  carrier 
liable  for  injury  done  after,  without  its 
notice,  the  point  of  destination  has  been 
changed  and  the  property  rerouted  under  a 
new  bill  of  lading  over  the  lines  of  a  new 
combination  of  carriers.  Parker-Bell  Lum- 
ber Co.  V.  Great  Northern  R.  Co.  41:1064, 
124  Pac.  389,  69  Wash.  123. 

979.  A  liability  for  some  default  in  its 
common-law  duty  as  a  common  carrier,  and 
not  liability  as  an  insurer,  is  what  is  im- 
posed by  the  Carmack  amendment  of  June 
29,  1900,  to  the  act  of  February  4,  1887, 
§  20,  under  which  a  carrier  receiving  prop- 
erty for  interstate  transportation  is  re- 
quired to  issue  a  receipt  or  bill  of  lading 
therefor,  and  is  made  liable  to  the  holder 
for  "any  loss,  damage,  or  injury  to  such 
property  caused  by  it,"  or  by  any  connect- 
ing carrier  to  whom  the  property  may  be 
delivered.  Adams  Exp.  Co.  v.  Croninger, 
44:  257,  33  Sup.  Ct.  Rep.  148,  226  U.  S.  491, 
57  L.  ed.  314. 

980.  The  provision  of  the  Carmack  amend- 
ment of  the  interstate  commerce  act,  ren- 
dering a  carrier  liable  for  loss  or  injury 
to  property  in  its  possession  for  transpor- 
tation, caused  by  it  or  a  connecting  carrier, 
does  not  relieve  it  from  liability  for  loss 
caused  by  derailment  of  the  train  due  to  the 
sudden  springing  of  an  animal  onto  the 
track  in  front  of  the  locomotive,  the  pres- 
ence of  which  could  not  have  been  reason- 
ably anticipated,  so  that  no  amount  of  care 
on  the  part  of  the  carriers  could  have  pre- 
vented the  wreck.  Cincinnati,  N.  0.  &  T. 
P.  R.  Co.  V.  Rankin,  45:  529,  156  S.  W.  400, 
153  Ky.  730. 

Injury  to  caretaker  of  stock. 

981.  The  initial  carrier  is  liable  for  in- 
jury to  one  carried  to  look  after  stock  which 
it  has  undertaken  to  transport,  due  to  the 
defective  condition  of  the  car  furnished,  al- 
though the  injury  occurs  after  the  car  has 
left  its  line.  Blatcher  v.  Philadelphia,  B.  & 
W.  R.  Co.  16:  991,  31  App.  D.  C.  385. 

2.   Selection   of  route. 

(See  also    Carriers,   II.   c,   2,   b,   in   Digest 
L.R.A.  1-10.) 

982.  If  a  shipper  does  not  route  his  ship- 
ment, the  carrier  may  select  the  route,  if 
there  be  more  than  one,  but  he  must  exer- 
cise the  option  of  the  selection  reasonably 
under  the  circumstances,  to  the  best  inter- 
ests of  the  consignee  and  shipper,  and  not 
to  their  disadvantage,  unless  in  good  faith 
and  under  circumstances  which  seem  to  re- 
quire it.  Alabama  G.  S.  R.  Co.  v.  McKen- 
zie,  45:  18,  77  S.  E.  647,  139  Ga.  410. 
Digest  1-52  L.R.A.(N.S.) 


fc.    Criminal    transportation. 

(See  also  Carriers,  II.  d,  in  Digest  L.R.A. 
1-10.) 

Violating  liquor  laws,  see  Commerce,  42; 
Evidence,  2410;  Indictment,  etc.,  33; 
Intoxicating  Liquoks,  115-119;  Tbial, 
303. 

lY.  Governmental  control;  rates;  dis- 
crimination; duty  as  to  stopping 
places;  siding  facilities. 

a.  In  general. 

(See  also  Carriers,  III.  a,  in  Digest  L.R.A. 
1-10.) 

Requirement  of  blackboard  announcements 
as  to  trains,  see  supra,  II.  n. 

Appeal  from  order  of  corporation  commis- 
sion, see  Appeal  and  Error,  155,  702. 

Penalizing  carrier  for  failure  to  furnish 
cars,  see  Appeal  and  Error,  65 ;  Com- 
merce, 88-93. 

Failure  of  public  service  commission  to 
serve  copy  of  petition  or  complaint 
upon  railroad  company,  see  Appear- 
ance, 15. 

Regulation  of  interstate  business  of,  see 
Commerce,  II. 

Delegation  of  power  over,  to  Interstate 
Commerce  Commission,  see  Constitu- 
tional Law,  114. 

Delegation  of  power  to  railroad  commission, 
see  Constitutional  Law,  119-122. 

Equal  protection  and  privileges  in  regula- 
tion of,  see  Constitutional  Law,  IL 
a,  3,  b. 

Due  process  of  law  in  regulation  of,  see 
Constitutional  Law,  437,  440-448. 

Police  power  as  to,  see  Constitutional 
Law,   683-686,   688. 

Regulations  as  impairing  contract  obliga- 
tions, see  Constitutional  Law,  785. 

Constitutionality  of  statute  imposing  pen- 
alty for  refusal  to  pay  claim  within 
certain  time,  see  Constitutional  Law, 
332. 

Prescribing  uniform  system  of  accounting 
and  bookkeeping  for  carriers,  see  Con- 
stitutional Law,  114,  442. 

Arbitrarily  fixing  weight  of  standards  of 
lumber  cars,  see  Constitutional  Law, 
446. 

Statute  giving  occupant  of  lower  berth  in 
sleeping  car  control  of  unoccupied  up- 
per berth,  see  Constitutional  Law, 
448,  670,  684. 

Forbidding  drumming  or  soliciting  business 
at  railroad  stations,  see  Constitu- 
tional Law,  688,  785;  Municipal 
Corporations,   181,   185. 

Constitutionality  of  full  crew  law,  see  Con- 
stitutional  Law,   440. 

Review  by  courts  of  full  crew  bill,  see 
Courts,  102. 

Injunction  against  enforcement  of  full  crew 
act,  see  Injunction,  355. 


430 


CAERIERS,  IV.  a. 


Requiring  express  companies  to  receive  at 
specified  time  and  place  all  money  ten- 
dered for  transportation,  see  Coubts, 
261. 

Sufficiency  of  evidence  to  establish  un- 
reasonableness of  order  of  railroad 
commission,  see  Evidence,  2339,  2340. 

Enjoining  carrier  from  complying  with 
statute  regulating  shipment  of  cream, 
see  Injunction,  354. 

Control  of  Interstate  Commerce  Commission 

X  over,  see  Intebstate  Commekce  Com- 
mission. 

Right  to  jury  upon  review  of  order  of  corpo- 
ration commission,  see  Jury,  15. 

Regulations  of  railroad  commissioners  as 
denial  of  right  to  jury  trial,  see  Juby, 
54. 

Mandamus  to  compel  carrier  to  perform 
duty  as  to  equipment  and  operation  of 
road,  see  Mandamus,  75-77,  124,  125. 

For  regulations  affecting  carrier's  duty 
and  liability  toward  employees,  see 
Master  and  Servant. 

Requiring  operators  of  street  car  to  protect 
passengers  from  dust  raised  by  cars, 
see  Municipal  Corporations,  131. 

Party  plaintiff  in  action  for  fine  imposed 
by  railroad  commissioner,  see  Parties, 
6. 

Matters  as  to  railroad  and  other  public 
service  commissions,  see  Public  Serv- 
ice Commission. 

Governmental  control  of  issue  of  securities, 
see  Public  Service  Commission,  7-9. 

Requiring  railroad  company  to  operate 
warehouse,  see  Railroads,  26,  27. 

Partial  invalidity  of  statute  regulating,  see 
Statutes,  80. 

Construction  of  language  of  safety  ap- 
pliance acts,  see  Statutes,  419-424. 

983.  It  is  the  duty  of  the  carrier  to 
anticipate  the  needs  of  the  public,  and  to 
provide  appropriate  and  reasonably  ade- 
quate facilities  and  accommodations  to  meet 
the  present  and  prospective  demands  for 
the  safety,  comfort,  and  convenience  of  the 
public,  who  have  a  right  to  use  the  facili- 
ties and  accommodations.  The  reasonable 
requirements  of  a  growing  community  or 
of  an  increasing  business  should  be  antici- 
pated by  a  carrier  in  the  performance  of 
its  public  duty.  Louisville  &  N.  R.  Co.  v. 
Burr,  44:  189,  58  So.  543,  63  Fla.  491. 

984.  As  the  carrier  is  the  owner  of  its 
property  and  provides  its  facilities,  and  is 
liable  in  damages  for  injuries  caused  by  its 
negligence  in  furnishing  or  using  such  facil- 
ities, governmental  regulations  should  ac- 
cord to  the  carrier  a  primary  discretion 
as  to  the  character,  dimensions,  and  details 
of  the  facilities  required,  unless  the  car- 
rier fails  or  refuses  to  properly  exercise  its 
rights.  Louisville  &  N.  R.  Co.  v.  Burr, 
44:  189,  58  So.  543,  63  Fla.  49L 

985.  In  determining  whether  a  rule  or 
regulation  of  the  railroad  commissioners,  in 
its  terms  or  in  its  practical  operation  and 
effect,  is  unreasonable,  and  denies  to  the 
carrier  its  constitutional  property  rights, 
all  the  facts  and  circumstances  affecting 
the  rights  of  all  interested  parties  should 
Pigest  1-52  I<.R.A.(N.S.) 


be   considered.      Louisville   &   N.   R.   Co.   v. 
Burr,  44:  189,  58  So.  543,  63  Fla.  491. 

986.  The  power  and  duty  of  a  state  to  re- 
quire the  property  of  a  common-carrier  cor- 
poration devoted  to  the  public  service  with- 
in its  borders  to  be  maintained  in  a  reason- 
ably safe  and  adequate  condition,  and  to  be 
properly  operated  for  rendering  the  public 
service  to  which  the  property  is  devoted  by 
its  corporate  owner,  are  inherent,  and  re- 
served in  the  state  for  the  necessary  pro- 
tection and  benefit  of  the  lives  and  property 
within  its  territory.  State  ex  rel.  Ellis  v. 
Atlantic  Coast  Line  R.  Co.  13:  320,  44  So 
213,  63  Fla.  650. 

987.  The  courts  may,  by  any  legal  method 
best  suited  to  the  case,  determine  whether 
or  not  the  property  devoted  by  a  common- 
carrier  railroad  corporation  to  the  public 
service  which  it  is  authorized  to  perform  is 
adequate  and  is  being  operated  in  a  reason- 
ably safe  and  convenient  manner  for  the 
proper  rendering  of  such  public  service,  when 
the  question  is  duly  presented  by  the  state 
through  its  proper  official  representative. 
State  ex  rel.  Ellis  v.  Atlantic  Coast  Line  R. 
Co.  13:  320,  44  So.  213,  53  Fla.  650. 

988.  In  determining  whether  the  roadbed, 
track,  rolling  stock,  and  other  equipment  of 
a  common-carrier  railroad  corporation  is 
reasonably  sufficient,  and  is  being  main- 
tained and  operated  in  a  reasonably  safe 
and  adequate  condition,  and  is  being  man- 
aged for  the  proper  rendering  of  the  public 
service  that  the  corporation  has  undertaken 
to  perform,  the  conditions  under  which  the 
service  is  being  rendered,  the  character  and 
extent  of  the  service,  its  reasonable  require- 
ments, and  the  means,  facilities,  and  meth- 
ods best  suited  to  such  service  in  common 
use,  will  be  considered  by  the  court,  together 
with  any  other  material  and  pertinent  mat- 
ters available.  State  ex  rel.  Ellis  v.  Atlan- 
tic Coast  Line  R.  Co.  13:  320,  44  So.  213, 
53  Fla.  650. 

989.  Courts  and  commissions  should  not 
interfere  to  annul  or  modify  the  established 
rules  and  practice  of  transportation  compa- 
nies on  account  of  trivial  troubles  and  inci- 
dental inconveniences,  nor  unless  clear  in- 
justice or  substantial  injury  or  the  immi- 
nent threat  of  it  has  resulted  from  them. 
Piatt  v.  Lecocq,  15:  558,  158  Fed.  723,  85 
C.  C.  A.  621. 

990.  Express  companies  operating  over 
railroads  exercising  a  public  franchise  in  a 
state  are  equally  subject  to  state  control 
and  regulation  with  the  railroad  companies 
over  whose  lines  they  operate,  within  the 
limited  field  of  the  business  of  transporta- 
tion which  they  occupy.  State  v.  Pacific 
Exp.  Co.  18:  664,  115  N.  W.  619,  80  Neb.  823. 

Free  deliveries  by  express  companies. 

Statute  requiring  express  company  to  make 
free  deliveries  as  interference  with 
commerce,  see  Commerce,  32-34. 

991.  A  state  cannot  compel  an  express 
company  to  make  free  delivery  of  parcels 
committed  to  its  care,  in  violation  of  con- 
tracts made  at  the  place  where  the  parcels 
are  received  in  another  state,  that  delivery 
charges    shall    be    paid    by    the    consignee. 


CARRIERS,  IV.  a. 


431 


State  ex  rel.  Railroad  Commission  v.  Adama 
Exp.  Co.  19:  93,  85  N.  E.  337,  966,  171  lud. 
138. 

Forbidding  getting  on  or  off  engines 
or  trains  in  motion. 

992.  A  statute  making  it  criminal  for  per- 
sons, not  passengers  or  employees  of  rail- 
roads, to  jnmp  on  or  off  of  railway  engines, 
cars,  or  trains,  does  not  inhibit  such  conduct 
in  an  employee  of  a  railroad  company,  whose 
duties  are  confined  to  work  in  its  shops,  and 
do  not  require  him  to  go  upon  or  about  its 
engines,  cars,  or  trains  when  in  use  on  its 
tracks  or  yards.  Diddle  v.  Continental  Cas- 
ualty Co.  22:  779,  63  S.  E.  962,  66  W.  Va.  170. 

993.  Boarding  a  moving  car  in  good  faith 
to  become  a  passenger  thereon  is  not  within 
the  operation  of  a  provision  of  a  statute  un- 
der a  caption,  "Riding  on  Freight  Trains," 
which  makes  it  a  misdemeanor  to  get  on  any 
train  or  car  while  in  motion,  for  the  pur- 
pose of  obtaining  transportation  thereon  as 
a  passenger.  East  v.  Brooklyn  Heights  R. 
Co.  23:  513,  88  N.  E.  751,  195  N.  Y.  409. 

(Annotated) 
Penalty   for   delaying   loaded    cars. 
Discrimination  in  rule  of  railroad  coramis- 

sion  as  to,  see  Constitutioxal  Law, 

196. 

996.  Under  the  power  given  a  railroad 
commission  to  require  common  carriers  to 
furnish  all  necessary  facilities  for  the  con- 
venient and  prompt  handling,  transporta- 
tion, and  delivery  of  all  freight  offered  for 
transportation,  and  to  provide  and  prescribe 
the  rules  and  regulations  necessary  to  se- 
cure the  furnishing  of  such  facilities  and 
transportation  and  delivery  of  all  freight, 
to  direct  and  control  all  matters  pertaining 
to  railroads  that  shall  be  for  the  good  of 
the  public,  and  to  do  and  perform  any  act 
or  thing  necessary  to  be  done  effectually 
to  carry  out  and  enforce  the  provisions  of 
a  railroad  commission  law,  the  commission- 
ers are  authorized  to  adopt  a  rule  making 
all  railroads  liable  to  a  shipper  in  a  charge 
of  $1  per  day  per  car  for  detaining  cars 
properly  loaded,  with  shipping  instructions 
given,  in  violation  of  the  commission  rules, 
as  such  a  charge  is  not  a  penalty,  but  is 
a  monetary  obligation  incurred  for  breacli 
of  duty  that  may  be  enforced  by  the  ship- 
per to  which  it  is  due.  State  v.  Atlantic 
C.  L.  R.  Co.  32:  639,  47  So.  969,  56  Fla.  617. 

997.  The  liability  or  charge  prescribed  by 
the  rule  of  a  railroad  commission  making 
a  carrier  liable  to  a  shipper  in  the  sum  of 
$1  per  day  per  car  for  the  unlawful  deten- 
tion of  loaded  cars  is  a  cumulative  remedy 
in  the  nature  of  a  charge  or  recompense 
for  the  inconvenience  or  detention  resulting 
directly  to  the  shipper  from  the  act '  or 
omission  of  the  carrier,  in  the  payment  of 
which  the  public  is  not  interested,  and  is 
therefore  not  a  penal  liability  for  the  fail- 
ure of  payment  of  which  a  penal  punish- 
ment can  be  imposed.  State  v.  Atlantic  C. 
L.  R.  Co.  32:  639,  47  So.  969,  56  Fla.  617. 
Transportation  of  state  militia. 

998.  The  importance  of  maintaining,  in- 
structing, and  disciplining  a  state  militia, 
and  providing  adequate  and  efficient  means 
Digest   1-52  L.R.A.(N.S.) 


for  transporting  the  members  thereof  over 
the  railways  of  the  state,  is  such  that  the 
legislature  may  properly  place  them  in  a 
class  when  traveling  under  orders  in  dis- 
charge of  their  duties,  and  regulate  the 
railway  companies  as  to  the  mode  of  fur- 
nishing transportation  and  such  regulation 
is  not  an  unlawful  interference  with  de- 
fendant's management  of  its  own  business. 
State  ex  rel.  Simpson  v.  Chicago,  M.  &  St. 
P.  R.  Co.  41:  524,  137  N.  W.  2,  118  Minn. 
380. 

Sale    of   tickets   over   other  road. 
Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  563. 

999.  A  statute  which  prohibits  a  common 
carrier  from  refusing  to  put  on  sale  or  to 
sell  any  ticket  of  any -other  railroad  com-, 
pany  with  which  the  same  may  be  directly 
or  indirectly  connected,  at  the  price  or  rate 
fixed  by  the  railroad  commission  of  the 
state,  or  refusing  to  put  on  sale  with  the 
agent  of  any  other  such  railroad  company 
tickets  for  any  point  upon  its  line  of  foad, 
is  not  unconstitutional  in  that  it  inter- 
feres with  and  destroys  the  right  of  private 
contract,  or  compels  the  railroad  company 
to  become  the  debtor  or  agent  of  another 
railroad  company,  or  to  appoint  another 
railroad  company  its  agent  and  transact  its 
business  through  the  agents  of  such  other 
company,  against  its  consent.  Stephens  v. 
Central  of  Ga.  R.  Co.  42:  541,  75  S.  E.  1041, 
138  Ga.  625. 

Confining  sale  of  tickets  to  agents. 

Forbidding  sale  of  railroad  tickets  by  brok- 
er as  interference  with  commerce,  see 
Commerce,  72. 

Unlawful  delegation  of  power  by  statute  as 
to,  see  Constitutional  Law,  74. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,   218,   219. 

Due  process  of  law  as  to,  see  Constitution- 
al Law,  391,  504. 

Impairment  of  contract  obligations  by  stat- 
ute as  to,  see  Constitutional  Law, 
792. 

Sufficiency  of  title  of  statute  as  to,  see 
Statutes,  113. 

1000.  A  statute  prohibiting  the  sale  of  rail- 
road transportation  by  persons  having  no 
certificate  of  authority,  which  must  be  pro- 
vided by  the  railroads  to  their  duly  author- 
ized agents,  prohibits  the  transaction  of 
ticket  brokerage  business.  State  v.  Thomp- 
son, 4:  480,  84  Pac.  476,  47  Or.  492. 
Siding   facilities. 

Due  process  of  law  in  statute  as  to,  see 
Constitutional  Law,   443,   444. 

Agreement  to  maintain  spur  track  or  sid- 
ing, see  Contracts,  369,  510;  Cove- 
nants AND  Conditions,  131;  Injunc- 
tion, 59;  Specific  Performance,  65, 
66,  68. 

Damages  for  wrongful  refusal  to  furnish, 
see  Damages,  307. 

Exercise  of  eminent  domain  to  secure  sid- 
ing, see  Eminent  Domain,  101,  102. 

Sufficiency  of  evidence  to  show  demand  up- 
on carrier  for,  see  Evidence,  2309. 


432 


CARRIERS,  IV.  b. 


Bar  of  judgment  in  action  for  damages  for 
carrier's  refusal  to  furnish,  see  Judg- 
ment, 86. 

Mandamus  to  compel  construction  and 
operation  of  side  track  and  switch  to 
private  establishment,  see  Mandamus, 
74. 

1001.  A  railroad  company  is  under  no  ob- 
ligation to  furnish  siding  facilities  to  ad- 
joining landowners.  Moser  v.  Philadelphia, 
H.  &  P.  R.  Co.  40:  519,  82  Atl.  362,  233  Pa. 
259. 

b.  Compulsory  connection  and  inter- 
change of  business;  discrimina- 
tion between  carriers,  hacJcmen, 
etc. ;  through  rates. 

(Bee  also  Carriers,  III.  6,  in  Digest  L.R.A. 
1-70.) 

As  to  connecting  carriers  generally,  see 
supra.  III.  j. 

1002.  A  railway  company  has  the  right  to 
exclude  from  its  depots  and  warerooms 
persons  who  come  there  in  an  intoxicated 
condition,  and  who  are  turbulent  and 
troublesome  and  disturb  and  interfere  with 
the  agents  and  employees  of  the  company 
in  the  discharge  of  their  work,  and  may 
also  exclude  therefrom  those  who  are  re- 
ported to  be  dishonest,  and  on  account  of 
whose  past  presence  in  and  about  its  depots 
and  warerooms  freight  had  been  reasoved 
without  the  company's  consent,  and  for 
which  it  was  compelled  to  pay  the  con- 
signee the  value  thereof.  Chicago,  R.  I.  & 
P.  R.  Co.  V.  Armstrong,  39:  ia6,  120  Pac. 
952,  30  Okla.   134. 

1003.  The  refusal  of  a  railroad  company 
rendering  services  as  a  common  carrier  to 
a  corporation,  whereby  it  is  enabled  to 
serve  the  public,  to  render  similar  services 
to  another  corporation  lawfully  authorized 
likewise  to  serve  the  public,  constitutes,  in 
the  absence  of  a  sufficient  excuse,  unjust 
discrimination,  which  the  railroad  commis- 
sioners have  power,  under  the  Constitution 
and  laws  of  Florida,  to  make  just  and  rea- 
sonable regulations  to  prevent.  State  ex 
rel.  Ellis  v.  Atlantic  C.  L.  R.  Co.  12:  506,  41 
So.  70.5,  52  Fla.  646. 
Discrimination  betxp^een  boat  lines  in 

nse  of  v^barf. 

1004.  Where  a  railroad  company  acquired 
20  acres  of  station  grounds  under  the  pro- 
visions of  the  act  of  Congress  of  March  3, 
1875,  chap.  152,  18  Stat.  482  (U.  S.  Comp. 
Stat.  1901,  p.  1568),  for  occupation  and  use 
as  a  common  carrier,  and  such  grounds  are 
80  situated  as  to  abut  upon  a  navigable  lake 
or  body  of  water,  and  such  company  con- 
structs thereon  a  dock  or  wharf  for  use  in 
receiving  and  discharging  freight  and  pas- 
sengers from  boats  and  for  forwarding 
through  freight  and  passengers,  and  the 
same  is  in  fact  used  both  in  carrying  on 
through  business  and  local  business,  such 
dock  or  wharf  is  a  public  "facility"  for  the 
transportation  of  freight  and  passengers 
within  the  purview  and  meaning  of  §  6, 
Digest  1-52  I<.R.A.(N.S.) 


art.  II,  of  Idaho  Constitution,  and  such 
railroad  company  cannot  make  any  undue 
or  unreasonable  discrimination  between  com- 
peting boat  lines  engaged  in  the  same  kind 
or  class  of  business  with  such  railroad  com- 
pany. Coeur  d'Alene  &  St.  J.  Transp.  Co. 
V.  Ferrell,  43:965,  128  Pac.  565,  22  Idaho, 
752. 

1005.  A  contract  entered  into  by  a  railroad 
company,  granting  to  a  steamboat  company 
the  exclusive  right  to  receive  and  discharge 
freight  and  passengers  at  a  dock  or  wharf 
which  is  a  part  of  and  connected  with  its 
depot  and  station  grounds,  and  which  af- 
fords the  only  means  and  facility  for  ap- 
proaching the  station  grounds  by  means  of 
the  water  highway,  and  excluding  all  the 
competitors  of  such  steamboat  company 
from  like  or  similar  privileges  at  any  time 
or  at  all,  is  undue  and  unreasonable  dis- 
crimination in  favor  of  the  one  company  and 
against  its  competitors,  which  is  in  viola- 
tion of  the  provisions  of  the  Idaho  Consti- 
tution, art.  11,  §  6,  providing  that  "no  un- 
due or  unreasonable  discrimination  shall  be 
made  in  charges  or  facilities  for  transporta- 
tion of  freight  or  passengers  of  the  same 
class,  by  any  railroad,  or  transportation  or 
express  company,  between  persons  or  places 
within  the  state."  Coeur  d'Alene  &  St.  J. 
Transp.  Co.  v.  Ferrell,  43:  965,  128  Pac.  565, 
22  Idaho,  752.  (Annotated) 

1006.  A  railroad  company  owning  and 
maintaining  a  dock  or  wharf  on  its  station 
grounds  may  adopt  and  enforce  such  rea- 
sonable rules  and  regulations  as  will  pre- 
vent blocking  and  interfering  with  its  busi- 
ness or  with  the  public  traffic;  and  so  long 
as  such  rules  and  regulations  are  reason- 
able and  do  not  amount  to  an  undue  or  un- 
reasonable discrimination  between  compet- 
itors, the  same  may  be  enforced  and  observ- 
ance thereof  required.  Coeur  d'Alene  &  St. 
J.  Transp.  Co.  v.  Ferrell,  43:  965,  128  Pac. 
565,  22  Idaho,  752. 

Discrimination  betw^een  transfer  com- 
panies and  backmen. 

Injunction    to    prevent    preferential    privi- 
leges to  hackman,  see  Injunction,  111. 

1007.  A  railroad  company  is  not  prevented 
from  granting  to  a  particular  person  en- 
gaged in  transferring  passengers  and  bag- 
gage the  exclusive  right  to  a  representative 
on  its  trains  to  solicit  patronage,  by  a  stat- 
ute requiring  such  corporation  to  grant 
equal  facilities  for  transportation  of  freight 
and  passengers  without  discrimination. 
Dingman  v.  Duluth,  S.  S.  &  A.  R.  Co.  32: 
n8i,    130   N.   W.   24,    164   Mich.   328. 

(Annotated) 

1008.  The  rights  of  the  public  are  not  im- 
paired by  the  grant  by  a  railroad  company 
of  the  exclusive  privilege  to  solicit  patron- 
age for  hacks  and  baggage  transferring  with- 
in its  depot  grounds,  where  the  recipient  of 
the  privilege  and  the  facilities  furnished  are 
subject  to  legislative  regulation.  Oregon 
Short  Line  R.  Co.  v.  Davidson,  16:  777,  94 
Pac.  10,  33  Utah,  370. 

1009.  That  the  depot  grounds  of  a  railroad 
company  are  dedicated  to  public  use  does 
not  confer  the  right  upon  hack  and  express- 


CARRIERS,  IV.  c,  1. 


433 


men  to  use  them  for  the  purpose  of  solicit- 
ing business.  Oregon  Short  Line  R.  Co.  v. 
Davidson,  i6:  777,  94  Pac.  10,  33  Utah,  370. 

1010.  A  railroad  company  may  confer  upon 
selected  hackmen  or  expressmen  the  riglit  to 
policit  patronage  within  its  depot  grounds. 
Oregon  Short  Line  R.  Co.  v.  Davidson,  16: 
777,  94  Pac.  10,  33  Utah,  370.       (Annotated) 

1011.  A  railroad  company  is  not  prevented 
from  excluding  cab  drivers,  hackmen,  and 
expressmen  from  its  grounds  by  a  constitu- 
tional provision  that  all  railroad  companies 
shall  receive  and  transport  each  other's  pas- 
sengers and  freight  Vi^ithout  discrimination 
or  unnecessary  delay.  Oregon  Short  Line 
R.  Co.  v.  Davidson,  16:  777,  94  Pac.  10,  33 
Utah,  370. 

1012.  A  railroad  company  cannot  give  to 
one  hackman  the  right  to  occupy  such  a 
position  on  its  grounds  as  necessarily  to 
result  in  his  securing  by  far  the  larger 
share  of  the  business,  and  a  contract  by 
which  it  attempts  to  do  so  is  void.  Ander- 
son v.  Palmer  Transfer  Co.  19:  756,  115  S. 
W.  182,  131  Ky.  217. 

1013.  A  railroad  company  may  justify  the 
exclusion  of  a  particular  drayman  from  its 
premises,  to  the  injury  of  his  business,  by 
showing  that,  if  he  was  permitted  upon  the 
premises  he  would  go  about  unattended, 
and  that  merchandise  had  disappeared  for 
which  the  railroad  was  compelled  to  pay; 
while  he  was  about  the  premises  that  he 
was  frequently  intoxicated;  was  quarrel- 
some and  interfered  with  employees  in  the 
performance  of  their  duties,  and  had  been 
arrested  for  intoxication  and  theft.  Chi- 
cago, R.  I.  &  P.  R.  Co.  V.  Armstrong,  39: 
126,    120   Pac.   952,   30   Okla.   134. 

(Annotated) 
In    respect    to     specific    and    unusual 

service. 
Public  policy  as  to  grant  of  exclusive  privi- 
lege  to   use   box   cars   for    advertising, 
see  Contracts,  429. 

1014.  A  railroad  company  which  as  a  com- 
mon carrfer  voluntarily  transports  and  de- 
livers between  stations  on  its  line  employ- 
ees and  freight  for  one  incorporated  public 
telegraph  company,  and  refuses  similar 
services  to  another  telegraph  company,  is 
guilty  of  unjust  discrimination,  and  may  be 
compelled  to  perform  like  services  for  the 
latter  for  a  reasonable  compensation,  al- 
though the  service,  being  voluntarily  ren- 
dered, is  in  pursuance  of  a  contract.  State 
ex  rel.  Ellis  v.  Atlantic  C.  L.  R.  Co.  12:  506, 
41   So.  705,  52  Fla.  646.  (Annotated) 

1015.  The  provision  of  a  contract  giving 
exclusive  rights  of  advertising  on  the  box 
cars  of  a  railroad  company,  by  which  it 
undertakes  to  transport  without  charge  the 
material  and  employees  of  the  other  party 
to  and  from  the  points  designated  for  af- 
fixing and  removing  signs,  contravenes  a 
statutory  provision  making  it  unlawful  for 
any  transportation  company  to  give  any 
undue  preference  to  any  person  in  any  re- 
spect whatever.  National  Car  Advertising 
Co.  V.  Louisville  &  N.  R.  Co.  24:  loio,  66 
S.  E.  88,  110  Va.  413. 


Digest   1-52  Ii.R.A.(N.S.) 


28 


c.  Rates;  discrimination  hetiveen  pas- 
sengers or  shippers;  rebate;  pass- 
es. 

1.  In  general. 

(See  also  Carriers,  III.  0,  1,  in  Digest 
L.RA.  1-70.) 

Charging  extra  fare  in  certain  cases,  see 
supra,  II.  m,  4. 

Fixing  valuation  of  property  as  basis  for 
rate,  see  supra,  931-946. 

Prematurity  of  suit  to  enjoin  rates,  see  Ac- 
tion OR  Suit,  18. 

Action  by  attorney  general  to  enjoin  car- 
riers from  exacting  unlawful  rates,  see 
Attorney  General,  7. 

Regulation  of  rates  in  interstate  business, 
see  Commerce,  82-84. 

Definiteness  of  promise  by  carrier  to  main- 
tain special  rate,  see  Contracts,   156. 

Criminal  liability  of  carrier  compelling 
agent  to  violate  statute  as  to  rates,  see 
Criminal  Law,  56. 

Who  may  bring  action  to  recover  excessive 
freight  rates,  see  Parties,  33. 

Regulation  of  telephone  rates,  see  Tele- 
phones, 17-23. 

1016.  The  modern  common  law  imposes  up- 
on common  carriers  the  duty  of  equality  in 
freight  rates  to  all  shippers  similarly  cir- 
cumstanced, for  the  transportation  of  the 
same  class  of  goods  the  same  distance;  and 
our  statutes  prohibiting  such  discrimina- 
tion are  declaratory  of  the  common-law 
rule.  Sullivan  v.  Minneapolis  &  R.  R.  R. 
Co.  45:  612,  142  N.  W.  3,  121  Minn.  488. 

1017.  A  carrier  which,  through  innocent 
mistake,  quotes  a  rate  on  merchandise  which 
is  less  than  that  on  tile  with  the  Interstate 
Commerce  Commission,  in  response  to  a  re- 
quest for  a  rate  in  order  to  fix  a  selling 
price  at  destination,  is  not  liable  for  the 
loss  occasioned  by  the  shipper's  being  com- 
pelled to  pay  the  correct  rate  to  get  posses- 
sion of  his  goods.  Shenberger  v.  Union  P. 
R.   Co.   33:  391,   113   Pac.  433,   84  Kan.   79. 

( Annotat-id ) 

1018.  A  rule  of  a  statevcorporation  com- 
mission providing  that  tei^  days'  free  stor- 
age shall  be  allowed  by  railroad  companies 
on  less  than  car-load  shipments  when  des- 
tined to  consignees  living  at  interior  points 
5  miles  or  more  from  the  railroad  station 
is  within  the  meaning  of  a  constitutional 
provision  giving  the  commission  paramount 
authority  to  prescribe  the  rates,  charges, 
and  classifications  of  transportation  com- 
panies, and  therefore  renders  inoperative  a 
general  act  of  the  legislature,  attempting 
to  regulate  the  same  subject-matter.  St. 
Louis  &  S.  F.  R.  Co.  v.  State,  30:  137,  107 
Pac.  929,  26  Okla.  62. 

Posting  or  filing  rates. 

Injunction  against  filing  schedules  of  rates 
with  interstate  commerce  commission, 
see  Interstate  Commerce  Commis- 
sion, 3. 

1019.  The  amended  interstate  commerce 
act  of  1887  (act  February  4,  1887,  chap.  104, 


434 


CARRIERS,  IV.  c,  2. 


24  Stat,  at  L.  379;  U.  S.  Comp.  Stat.  1901. 
p.  3154)  neither  lays  a  tax  or  duty  on  ar- 
ticles exported  from  any  state  nor  gives  a 
preference  to  the  ports  of  one  state  over 
those  of  another,  within  the  meaning  of  U. 
S.  Const,  art.  1,  §  9,  H  5,  and  is  not  obnox- 
ious thereto.  Armour  Packing  Co.  v.  Unit- 
ed States,  14:  400,  153  Fed.  1,  82  C.  C.  A. 
135. 

1020.  The  rates  of  transportation  from 
places  in  the  United  States  to  ports  of 
transhipment,  and  from  ports  of  entry  to 
places  in  the  United  States,  of  property  in 
foreign  commerce  carried  under  through 
bills  of  lading,  are  required  to  be  filed  and 
published,  by  the  amended  interstate  com- 
merce act  of  1887  (act  February  4,  1887, 
chap.  104,  24  Stat,  at  L.  379,  U.  S.  Comp. 
Stat.  1901,  p.  3154).  Armour  Packing  Co. 
V.  United  States,  14:  400,  153  Fed,  1,  82  C. 
C.  A.  135. 

1021.  If  foreign  commerce  is  carried  under 
an  aggregate  through  rate  which  is  the  sum 
of  the  ocean  rate  and  the  rate  from  or  to  a 
place  in  the  United  States  to  or  from  the 
port  of  transhipment  or  of  entry,  the  latter 
rate  is  required  to  be  filed  and  published,  by 
the  amended  interstate  commerce  act  of  1887 
(act  February  4,  1887,  chap.  104,  24  Stat,  at 
L.  379;  U.  S.  Comp.  Stat.  1901,  p.  3154). 
Armour  Packing  Co.  v.  United  States,  14: 
400,  153  Fed.  1,  82  C.  C.  A.  135. 

1022.  The  joint  rate  is  required  to  be  filed 
and  published,  by  the  amended  interstate 
commerce  act  of  1887  (act  February  4,  1887, 
chap.  104,  24  Stat,  at  L.  379;  U.  S.  Comp. 
Stat.  1901,  p.  3154),  where  foreign  commerce 
is  carried  under  a  joint  through  rate  by 
virtue  of  a  common  control,  management,  or 
arrangement  of  the  inland  and  ocean  car- 
riers. Armour  Packing  Co.  v.  United  States, 
14:  400,  153  Fed.  1,  82  C.  C.  A.  135. 

1023.  That  a  railroad  company,  when  pub- 
lishing its  rates  for  hauling  cars  from  one 
point  to  another  within  the  limits  of  a 
city,  was  under  the  mistaken  impression 
that  it  was  not  bound  to  do  a  regular 
freight  business  between  such  points,  does 
not  entitle  it  to  charge  more  than  its  pub- 
lished rates  for  handling  such  freight,  and 
it  cannot  avoid  this  result  by  insisting  that 
the  rate  was  only  for  switching  service, 
where  it  had  done  both  switching  and  trans- 
portation service  at  such  rate.  Higdon  v. 
Lousiville  &  N.  R.  Co.  33:  442,  135  S.  W.  768, 
143  Ky.  73." 

1024.  A  carrier  engaged  in  interstate  com- 
merce cannot  lawfully  charge,  collect,  or 
receive  anything  but  money  for  transporta- 
tion on  its  road  since  the  enactment  of  the 
act  of  June  29,  1906  (34  Stat,  at  L.  584, 
chap.  3591,  U.  S.  Comp.  Stat.  Supp.  1909, 
p.  1149),  §  6,  prohibiting  any  carrier  from 
demanding,  collecting,  or  receiving  "a 
greater  or  less  or  different  compensation" 
for  the  transportation  of  persons  or  prop- 
erty, or  for  any  service  in  connection  there- 
with, than  that  specified  in  its  published 
schedule  of  rates.  Louisville  &  N.  R.  Co. 
V.  Mottley,  34:  671,  31  Sup.  Ct.  Rep.  265,  219 
U.  S.  467,  55  L.  ed.  297. 

Dieest  1-52  IkII.A.(N.S.) 


Penalty  for  overcharge. 

Constitutionality  of  statute  imposing  pen- 
alty for  refusal  to  sell  tickets  of  con- 
necting carrier  at  prescribed  rates,  see 
Constitutional  Law,  563. 

Pleading  in  action  to  recover  penalty,  see 
Pleading,  440. 

1025.  A  railroad  company  exacting  fares 
for  transportation  in  excess  of  those  allowed 
by  statute  does  not  become  subject  to  in- 
dictment where  the  statute  provides  a  pen- 
alty against  it,  for  so  doing,  recoverable  for 
the  benefit  of  the  person  injured,  by  the  fact 
that  such  conduct  is  forbidden  by  one  sec- 
tion of  the  statute,  while  the  penalty  is 
fixed  by  another  section, — especially  where 
the  agent  disobeying  the  .statute  is  made  lia- 
ble to  indictment  for  a  misdemeanor.  State 
v.  Southern  R.  Co.  13:  966,  59  S.  E.  570,  145 
N.  C.  495. 

1026.  A  carrier  is  not  liable  for  the  statu- 
tory penalty  provided  for  charging  exces- 
sive fare,  if  after,  through  honest  mistake, 
giving  the  passenger  a  ticket  for  a  station 
short  of  the  one  called  and  paid  for,  i;  re- 
fuses to  honor  the  ticket  past  the  point  to 
which  it  reads,  but  compels  payment  or  ad- 
ditional fare  from  that  point  to  destination. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  McDermott, 
44:  281,   152   S.  W.   983,   106  Ark.   170. 

( Annotated ) 

1027.  Where  a  railroad  company  having 
an  office  or  agency  within  the  state  has  on 
sale  tickets  furnished  by  a  connecting  rail- 
road for  the  transportation  of  passengers 
over  the  latter,  and  refuses  to  sell  such 
ticket  to  a  prospective  passenger  who  ap- 
plies to  the  agent  of  the  initial  carrier 
therefor,  at  the  price  fixed  by  the  railroad 
commission  of  the  state,  the  railroad  com- 
pany so  refusing  is  subject  to  the  penalty 
provided  by  Georgia  Code,  §  2755,  for  the 
refusal  of  a  railroad  company  to  put  on 
sale  or  refuse  to  sell  any  ticket  of  any 
other  railroad  company  with  which  the 
same  may  be  directly  or  indirectly  connect- 
ed, at  the  price  or  rate  fixed  by  the  railroad 
commission  of  the  state.  Stephens  v.  Cen- 
tral of  Ga.  R.  Co.  42:  541,  75  S.  E.  1041,  138 
Ga.  625. 

2.  Power  to  fix  rates;  mileage  tickets. 

(See  also  Carriers,  III.  c,  2,  in  Digest 
L.R.A.  1-70.) 

Interference  with  commerce  by  statute  pre- 
scribing maximum  rates,  see  Commerce, 
82-84. 

Delegation  of  power  as  to  fixing  of  rates, 
see  Constitutional  Law,  120. 

Equal  protection  and  privileges  as  to  rates, 
see  CoNSTiTtrrioNAL  Law,  212-217, 
493. 

Due  process  as  to,  see  Constitutioitai, 
Law,  493-498. 

Imposing  penalty  for  refusal  to  comply 
w^ith  regulations,  see  Constitutional 
Law,  563,  564. 

Constitutionality  of  statute  as  to  mileage 
tickets,  see  C!onstitutional  Law,  214. 


CAREIERS,  IV.  c,  3. 


435 


Judicial  power  to  review  rates  fixed,  see 
CkjXTBTS,   134. 

Jurisdiction  of  action  to  enforce  or  enjoin 
rates,  see  Couets,  249-25]. 

Injunction  by  Federal  court  against  en- 
forcement of  state  railroad  rate  law, 
see  CouBTS,  285. 

Injunction  against  enforcement  of  rates 
fixed  by  statute  generally,  see  Injunc- 
tion, 353. 

Attorney  general  as  proper  party  defend- 
ant to  suit  to  restrain  enforcement  of 
statute  as  to  rates,  see  Pauties,  167. 

Suit  by  stockholders  of  company  to  enjoin 
it  from  complying  with  statute  regu- 
lating rates,  see  Pleading,  173. 

Jurisdiction  of  equity  of  proceeding  to  test 
validity  of  statute  fixing  rates,  see 
Equity,  42. 

Presumption  of  validity  of  statute  fixing 
rates,  see  Evidence,  84,  85. 

Pleading  in  suit  to  enjoin  carrier  from  com- 
plying with  statute  regulating  rates, 
see  Pleading,  173. 

Reference  on  question  of  validity  of  rates, 
see  Reference,  17. 

When  rates  fixed  by  statute  become  effec- 
tive, see  Statutes,  14. 

See  also  supra,  999. 

1028.  The  legislative  assembly  can,  under 
North  Dakota  Constitution,  §  142,  prescribe 
maximum  rates  for  the  transportation  by 
common  carriers  of  commodities  between 
points  within  the  state,  provided  the  rates 
thus  prescribed  are  reasonable.  State  ex 
rel.  McCue  v.  Northern  P.  R.  Co.  25:  looi, 
120  N.  W.  869,  19  N.  D.  45. 

Special    rate    for    state    militia. 
Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  212,  493. 

1029.  An  act  establishing  a  lower  rate 
than  the  maximum  passenger  rate  for  the 
carriage  of  members  of  the  state's  military 
force  upon  railway  lines  within  the  state, 
when  such  members  are  required  to  so  travel 
under  orders  in  discharge  of  their  military 
duties,  is  not  an  unlawful  discrimination  of 
which  defendant  may  complain;  the  de- 
fense having  been  waived  that  such  rate  is 
not  compensatory.  State  ex  rel.  Simpson 
V.  Chicago,  M.  &  St.  P.  R.  Co.  41:  524,  137 
N.  VV.  2,  118  Minn.  380.  (Annotated) 
Rates   on  street  cars. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  216,  217. 

Due  process  of  law  as  to,  see  Constitu- 
tional Law,  496-498,  564. 

Public  policy  as  to  condition  in  franchise 
requiring  certain  persons  to  be  carried 
free,  see  Contracts,  511. 

Making  violation  of  rule  as  to  street  car 
transfers  a  crime,  see  Constitutional 
Law,.  76. 

1030.  Persons  attending  universities  and 
business  colleges  are  not  within  the  meaning 
of  a  street  railway  franchise  providing  that 
school  children  going  to  and  returning  from 
school  shall  ride  for  half  fare;  especially 
where  such  construction  has  been  acted  upon 
by  the  contracting  parties  without  question 
for  a  number  of  years.  State  ex  rel.  Seattle 
Digest  1-52  L.R.A.(N.S.) 


v.  Seattle  Electric  Co.  43:172,  128  Pac.  220, 
71  Wash.  213.  (Annotated) 

1031.  A  municipal  corporation  empowered 
by  Oklahoma  Const,  art.  18,  §  6,  to  operate 
a  street  railway  line,  may  require  a  street 
railway  company  to  which  it  grants  fran- 
chises, to  carry  policemen,  firemen,  United 
States  mail  carriers,  and  children  under  a 
certain  age  free,  and  to  furnish  transporta- 
tion to  school  children  at  a  reduced  fare, 
and  sucli  conditions  are  not  invalidated  by 
the  provisions  of  Okla.  Const,  art.  9,  §  13, 
forbidding  carriers  to  grant  free  transpor- 
tation. Oklahoma  City  v.  Oklahoma  R.  Co. 
16:  651,  93  Pac.  48,  20  Okla.  1     (Annotated) 

1032.  The  provisions  of  Oklahoma  Const., 
art.  9,  §  13,  forbidding  a  street  railway  to 
furnish  free  transportation  except  in  cer- 
tain specified  cases,  do  not  justify  the  rail- 
way company  in  refusing  free  transporta- 
tion to  United  States  mail  carriers,  police- 
men, and  firemen,  or  in  refusing  to  trans- 
port school  children  at  half  fare,  in  accord- 
ance with  provisions  contained  in  the  com- 
pany's franchise,  although  such  persons  are 
not  designated  in  the  constitutionally  ex- 
cepted classes,  since  such  transportation  is 
not  free,  inasmuch  as  it  formed  part  of  the 
consideration  for  the  granting  of  the  fran- 
chise. Oklahoma  City  v.  Oklahoma  R.  Co. 
16:  651,  93  Pac.  48,  20  Okla.  1. 

3.    Reasonableness   of  rates. 

(See  also  Carriers,  III.  c,  3,  in  Digest 
L.R.A.  1-10.) 

Requirements  as  to  extra  fare,  see  supra, 
II.  m,  4. 

Review  of  findings  as  to,  see  Appeal  and 
Error,  972. 

Judicial  power  to  review  rates,  see  Consti- 
tutional Law,  89;   Courts,  334. 

Confiscatory  rates,  see  Courts,  250. 

Presumption  of  validity  of  statute  prescrib- 
ing, see  Evidence,  665. 

Rebuttal  of  presumption  as  to  reasonable- 
ness, see  Evidence,  2049. 

Sufficiency  of  evidence  to  overcome  pre- 
sumption of  reasonableness,  see  Evi- 
dence, 2341-2343. 

Right  to  jury  in  determining  validity  of 
statute  establishing  rates,  see  Jury,  14. 

See  also  supra,  1028. 

1033.  Before  the  courts  are  called  upon 
to  adjudge  an  act  of  the  legislature  fixing 
maximum  rates  for  express  companies  un- 
constitutional on  the  ground  that  they  are 
unreasonable  and  confiscatory,  tliey  should 
be  fully  advised  as  to  what  is  done  with  the 
receipts  and  earnings  of  the  company;  for, 
if  so  advised,  it  might  clearly  appear  that 
a  prudent  and  honest  management  within 
the  rates  prescribed  would  secure  to  the 
company  a  reasonable  compensation  for 
the  use  of  its  property  and  for  conducting 
its  business.  State  v.  Adams  Express  Co. 
42:  396,  122  N.  W.  691,  85  Neb.  25. 

1034.  The  legislative  assembly  of  a  state 
can  reduce  the  intrastate  freight  rate  upon 
a   particular   commodity   below  the   cost  of 


138 


CARRIERS,  IV.  c,  3. 


transportation  thereof  provided  the  carrier 
is  still  able  to  earn  a  fair  profit  upon  their 
entire  intrastate  business.  State  ex  rel. 
McCue  V.  Northern  P.  R.  Co.  25:  looi,  120 
N.   VV.  869,  19  N.  D.  45. 

1036.  The  test  as  to  whether  the  rates  for 
the  intrastate  transportation  by  common 
carriers  of  coal  in  carload  lots  as  estab- 
lished by  a  state  statute  enacted  under  con- 
stitutional authority  is  reasonable  or  un- 
reasonable is  not  whether  the  rate  fixed  on 
a  particular  commodity  is  sufficiently  high 
to  enable  the  carrier  to  earn  a  fair  compen- 
sation after  allowing  for  the  legitimate  cost 
to  the  carrier  of  transporting  the  same,  but 
whether,  under  such  rates,  it  will  be  en- 
abled from  its  total  freight  receipts  on  all 
its  intrastate  traffic  to  earn  a  sum,  above 
operating  expenses  reasonably  necessary  for 
Buch  traffic,  sufficient  to  yield  a  fair  and 
reasonable  profit  upon  its  investment. 
State  ex  rel.  McCue  v.  Northern  P.  R.  Co. 
25:  looi,  120  N.  W.  869,  19  N.  D.  45. 

( Annotated ) 

1036.  Public-service  corporations  in  Penn- 
sylvania are  entitled  to  look  for  a  rate  of 
return,  if  their  property  will  earn  it,  not 
less  than  the  legal  rate  of  interest;  and  a 
system  of  charges  that  yields  no  more  in- 
come than  is  fairly  requisite  to  maintain 
the  plant,  pay  fixed  charges  and  operating 
expenses,  provide  a  suitable  sinking  fund 
for  the  payment  of  debts,  and  pay  a  fair 
profit  to  the  owners  of  the  property,  is  not 
unreasonable.  Pennsylvania  R.  Co.  v.  Phil- 
adelphia County,  15:  108,  68  Atl.  676,  220 
Pa.  100. 

1037.  A  2-cent  passenger-rate  act  violates 
a  constitutional  provision  forbidding  the  leg- 
islature to  do  injustice  to  the  corporators 
of  the  railroad  company  by  the  alteration 
of  rates,  when,  although  not  amounting  to 
actual  confiscation,  it  has  an  inevitable  ten- 
dency thereto.  Pennsylvania  R.  Co.  v.  Phil- 
adelphia County,  15:  108,  68  Atl.  676,  220 
Pa.  100. 

1038.  In  determining  whether  a  2-cent  pas- 
senger rate  is  reasonable,  the  receipts  from 
the  passenger  traffic  may  be  treated  as  a 
separate  subject  of  examination  and  regula- 
tion, and  the  other  sources  of  revenue  of  the 
company  excluded.  Pennsylvania  R.  Co.  v. 
Philadelphia  County,  15:  108,  68  Atl.  676, 
220  Pa.  100.  (Annotated) 

1039.  The  market  value  of  the  stocks  and 
bonds  representing  the  entire  property  of 
a  railway  company,  which  includes  assets 
of  considerable  value  which  do  not  form 
part  of  the  operating  property  of  the  car- 
rier, or  that  devoted  to  the  public  service, 
furnishes  no  criterion  when  testing  the  rea- 
sonableness of  state  regulation  of  rates  by 
which  to  determine  the  value  of  the  prop- 
erty on  which  the  fair  return  essential  to 
their  validity  is  to  be  computed.  Minnesota 
Rate  Cases,  48:  1151,  33  Sup.  Ct.  Rep.  729, 
230  U.  S.  352,  57  L.  ed.  1511. 

1040.  The  cost  to  a  railway  company  of  ac- 
quiring the  land  necessary  for  its  terminals, 
yards,  and  right  of  way  if  the  railway  were 
not  there,  and  the  company  should  be  called 
upon  to  reproduce  its  road,  including  the 
Digest  1-52  Ii.R.A.(N.S.) 


estimated  excess  over  the  market  value  of 
contiguous  or  similarly  situated  property 
which  it  is  conjectured  that  the  railway 
company  would  be  obliged  to  pay,  and  an 
allowance  for  consequential  and  severance 
damages,  and  for  possible  improvements 
that  might  be  found  on  the  property  taken, 
— is  not  the  proper  basis  for  valuing  such 
property  for  the  purpose  of  testing  tlie 
reasonableness  of  state  regulation  of  rates. 
Minnesota  Rate  Cases,  48:  1151,  33  Sup.  Ct. 
Rep.  729,  230  U.  S.  352,  57  L.  ed.  1511. 

(Annotated) 

1041.  Estimates  of  the  value  of  the  right 
of  way,  yards,  and  terminals  of  a  railway 
company  cannot  properly  be  based,  when 
testing  the  reasonableness  of  state  regula- 
tion of  its  rates,  upon  their  supposed  value 
for  railway  purposes  in  excess  of  the  fair 
market  value  of  contiguous  or  similarly 
situated  property.  Minnesota  Rate  Cases, 
48:  1 151,  33  Sup.  Ct.  Rep.  729,  230  U.  S.  352, 
57  L.  ed.  1511. 

1042.  The  fair  present  value  of  a  railway 
company's  right  of  way,  yards,  and  ter- 
minals cannot  be  increased  when  testing 
the  reasonableness  of  state  regulation  of 
its  rates,  by  adding  further  sums  calcu- 
lated on  that  value  for  engineering,  super- 
intendence, legal  expenses,  contingencies, 
and  interest  during  construction.  Minneso- 
ta Rate  Cases,  48:  1151,  33  Sup.  Ct.  Rep. 
729,  230  U.  S.  352,  57  L.  ed.  1511. 

1043.  The  physical  valuation  of  the  prop- 
erty of  a  railway  company  on  the  basis  of 
the  cost  of  reproduction  new  for  the  pur- 
pose of  testing  the  reasonableness  of  state 
regulation  of  its  rates  is  incomplete,  where 
depreciation  is  found  in  general  terms  to 
be  more  than  off-set  by  appreciation,  with- 
out showing  the  specific  items  of  such  ap- 
preciation and  depreciation.  Minnesota 
Rate  Cases,  48:  1151,  33  Sup.  Ct.  Rep.  729, 
230  U.  S.  352,  57  L.  ed.  1511. 

1044.  A  division  of  the  value  of  the  prop- 
erty of  an  interstate  carrier  within  a  state 
according  to  gross  earnings  derived  respec- 
tively from  its  interstate  and  intrastate 
business  in  such  state  does  net  give  a  suffi- 
ciently accurate  measure  of  the  value  of 
the  use  of  its  property  in  intrastate  busi- 
ness to  serve  as  the  basis  of  a  judicial  hold- 
ing in  a  close  case  that  the  intrastate  rates, 
as  fixed  by  the  state,  are  confiscatory.  Min- 
nesota Rate  Cases,  48:  1151,  -33  Sup.  Ct. 
Rep.  729,  230  U.  S.  352,  57  L.  ed.  1511. 

1045.  The  total  value  of  the  property  of  an 
interstate  carrier  within  a  state,  independ- 
ently of  revenue,  should  be  divided  as  be- 
tween its  interstate  and  intrastate  business 
in  such  state,  when  testing  the  reasonable- 
ness of  ,  state  regulation  of  its  intrastate 
rates,  according  to  the  use  that  is  made  of 
the  property,  assigning  to  each  business 
that  proportion  of  the  total  value  of  the 
property  which  will  correspond  to  the  ex- 
tent of  its  employment  in  that  business. 
Minnesota  Rate  Cases,  48:  1151,  33  Sup.  Ct. 
Rep.  729,  230  U.  S.  352,  57  L.  ed.  1511. 

1046.  A  state  may  not  fix  the  Intrastate 
rates  of  an  interstate  carrier  so  low  that 
the    carrier's    entire    revenue    from    all    its 


CARRIERS,  IV.  c,  4. 


437 


business  in  the  state,  both  interstate  and 
intrastate,  after  paying  only  operating  ex- 
penses and  taxes,  amounts  to  only  about  4 
per  cent  on  the  value  of  its  property  in  the 
state.  ^Minnesota  Rate  Cases,  48:  1151,  33 
Sup.  Ct.  Rep.  729,  230  U.  S.  352,  57  L.  ed. 
1511. 

4.  Discrimination;  rebates;  passes. 

(See  also  Carriers,  III.  0,  4>  in  Digest 
L.R.A.  1-70.) 

Duty  to  receive  and  transport  generally, 
see  supra,  III.  b. 

Recovery  back  of  discriminatory  freight 
rate,  see  Assumpsit,  31;  Pleading, 
157. 

Due  process  in  regulations,  as  to,  see  Con- 
stitutional Law,  441. 

Effect  on  jurisdiction  of  state  courts  of  ac- 
tion for  discrimination  of  Federal  In- 
terstate Commerce  Act,  see  Coukts, 
293, 

Measure  of  damages  for,  see  Damages,  291. 

Evidence  as  to,  see  Evidence,  1846,  2031, 
2032. 

Injunction  to  restrain  discrimination 
against  shipper,   see  Injunction,   409. 

Liability  for  interest  on  discriminatory 
rate  exacted,  see  Interest,  2. 

Question  for  Interstate  Commerce  Commis- 
sion as  to  whether  undue  preference  is 
given  any  locality  by  reason  of  opera- 
tion of  intrastate  rate,  see  Intebstate 
Commerce  Commission,  4. 

Construction  of  statutes  in  pari  materia 
forbidding  discrimination,  see  Stat- 
UTTES,   234. 

Discrimination  in  rates  by  telephone  com- 
pany, see  Telephones,  24-26. 

Question  for  jury  as  to,  see  Trial,  612. 

See  also  supra,  879. 

1047.  The  common-law  obligation  of  a  car- 
rier by  sea  is  to  receive  goods  which  it  is 
able  and  accustomed  to  carry  in  the  order  of 
their  tender,  without  discrimination  as  be- 
tween shippers  of  the  same  or  of  diflferent 
commodities.  Ocean  Steamship  Co.  v.  Savan- 
nah Locomotive  Works  &  S.  Co.  20:  867,  63 
S.   E.   577,    131    Ga.   831. 

1048.  Even  though  there  be  no  common- 
law  duty  on  the  part  of  common  carriers 
to  maintain  equality  in  rates,  under  a  stat- 
ute prescribing  the  same  and  thus  imposing 
a  new  obligation  upon  the  carrier  a  shipper 
who  has  been  discriminated  against  has  a 
right  of  action  in  damages  therefor,  there 
being  no  civil  remedy  provided  by  the  stat- 
ute. Sullivan  v.  Minneapolis  &  R.  R.  R. 
Co.  45:  612,  142  N.  W.  3,  121  Minn.  488. 

1049.  The  shipper's  common-law  right  of 
action  for  damages  for  discrimination  in 
rates  is  not  taken  away  by  rate-regulating 
statutes,  which  furnish  no  civil  remedy  to 
the  shipper  therefor.  Sullivan  v.  Minneapo- 
lis &  R.  R.  R.  Co.  45:  612,  142  N.  W.  3,  121 
Minn.  488.  (Annotated) 

1050.  The  interstate  commerce  act  does  not 
prohibit  the  giving  of  all  preferences  and 
advantages  or  the  production  of  all  preju- 
Digest  1-52  Ii.R.A.(N.S.) 


dices  and  disadvantages,  but  only  those  that 
are  undue  and  unreasonable.  Gamble-Rob- 
inson Com.  Co.  V.  Chicago  &  N.  W.  R.  Co. 
21:  982,  168  Fed.  161,  94  C.  C.  A.  217. 

1051.  An  interstate  carrier  does  not  sub- 
ject a  consignee  to  an  undue  or  unreason- 
able prejudice  or  disadvantage,  within  the 
meaning  of  the  interstate  commerce  act,  by 
exacting,  after  due  notice  to  it,  the  prepay- 
ment of  charges  for  transportation  of  all 
property  consigned  to  it,  while  it  does  not 
require  such  charges  to  be  paid  in  advance 
upon  freight  consigned  to  others  similarly 
situated,  even  though  such  discriminations 
were  made  for  the  express  purpose  of  injur- 
ing the  business  of  such  consignee,  and  it 
was  the  custom  and  usage  of  the  carrier  to 
transport  and  deliver  the  freight  in  such 
cases,  and  to  give  credit  until  any  questions 
regarding  the  correctness  of  the  charges  had 
been  adjusted,  and  then  to  collect  the  bills 
of  the  consignee.  Gamble-Robinson  Com. 
Co.  V.  Chicago  &  N.  W.  R.  Co.  21:  982,  168 
Fed.  161,  94  C.  C.  A.  217.  (Annotated) 

1052.  A  contract  for  carrying  an  inter- 
state shipment  over  connecting  lines  be- 
tween points  for  which  no  true  rate  is 
scheduled,  for  a  rate  which  is  less  than  the 
combined  scheduled  rates  between  the  in- 
itial and  terminal  points  and  the  junction, 
is  void.  Atchison,  T.  &  S.  F.  R.  Co.  v.  Bell, 
38:  351,  120  Pac.   987,  31   Okla.   238. 

(Annotated) 

1053.  A  contract  between  a  carrier  and  a 
shipper  to  transport  the  latter's  goods  in 
interstate  or  foreign  commerce  at  the  then 
established  rate,  for  a  definite  time,  is  in- 
valid. Armour  IPacking  Co.  v.  United  States, 
14:  400,  153  Fed.  1,  82  C.  C.  A.  135. 

1054.  The  shipping  over  a  railroad  of  the 
products  of  a  mill  does  not  justify  a  dis- 
criminatory rate  in  favor  of  the  logs  shipped 
to  the  mill  from  which  the  product  is  made. 
Hilton  Lumber  Co.  v.  Atlantic  Coast  Line 
R.  Co.  6:225,  53  S.  E.  823,  141  N.  C.  171. 

(Annotated) 

1055.  The  word  "contemporaneously,"  in  a 
statute  prohibiting  discrimination  in  freight 
rates,  does  not  mean  that  the  shipment 
must  have  been  made  the  exact  day  and 
hour,  or  necessarily  month;  but  it  means  a 
period  of  time  through  which  the  shipments 
of  goods  or  freight  are  made  by  the  com- 
plaining party  at  one  rate  and  by  other 
shippers  at  another  rate.  Hilton  Lumber 
Co.  V.  Atlantic  Coast  Line  R.  Co.  6:  225,  53 
S.  E.  823,  Ul  N.  C.  171. 

1050.  A  common  carrier  which  has  leased 
the  track  of  a  connecting  carrier,  and  which 
delivers  cars  free  of  charge  to  elevators 
located  on  such  leased  track,  is  not  guilty 
of  discrimination  in  collecting  a  switching 
charge  for  the  delivery  of  cars  to  another 
elevator  located  on  the  lines  of  the  con- 
necting carrier  beyond  the  leased  portion 
of  the  track  and  at  a  point  on  the  line  in 
which  the  first  carrier  had  no  riglit  what- 
ever except  the  right  to  deliver  cars  upon 
payment  of  the  switching  charges,  whicli 
are  thus  collected  of  the  elevator  owner, 
and    such    carrier    is    not    liable    to    return 


438 


CARRIERS,  IV.  c,  4. 


the  amount  so  collected.  Banner  Grain 
Co.  V.  Great  Nortliern  R.  Co.  41:678,  137 
N.  W.  161,  119  Minn.  68.  (Annotated) 

1057.  Refusal  by  a  carrier  to  permit  a 
merchant  to  reship  cars  of  freight  con- 
signed to  him  to  purchasers  on  the  original 
waybill,  all  charges  to  be  collected  at 
destination,  when  such  privilege  is  accord- 
ed to  other  shippers,  is  not  within  a  statute 
making  it  unlawful  for  any  carrier  to  make 
or  give  undue  preferences  or  advantages  to 
any  particular  shipper,  or  subject  him  to 
any  undue  or  Unreasonable  disadvantage  or 
prejudice.  Brown  &  Brown  Coal  Co.  v. 
Grand  Trunk  R.  System,  29:  840,  124  N. 
W.  528,  159  Mich.  565. 

1058.  The  practice  of  an  express  company, 
in  conformity  with  its  rules,  to  refuse  to  re- 
ceive packages  of  specie  and  currency  on 
the  day  preceding  that  upon  which  the  only 
trains  carrying  express  matter  start  from 
the  place  of  tender  for  the  destinations  of 
the  packages,  does  not  violate  S.  D.  Rev. 
Pol.  Code,  §  437,  forbidding  any  common 
carrier  to  give  any  preference  or  advantage 
to  any  particular  person,  locality,  or  de- 
scription of  traffic,  where  the  rules  and  prac- 
tice are  universal  and  apply  to  all  cities  and 
points  within  the  state.  Piatt  v.  Lecocq, 
15:  558,  158  Fed.  723,  85  C.  C.  A.  621. 
Between  passengers;  passes. 
Discrimination  against  colored  persons,  see 

Civil  Rights,  3. 

Invalidating  carrier's  contract  for  annual 
passes,  see  Commehce,  71. 

Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  367,  495,  791. 

Provision  in  franchise  as  to  carrying  cer- 
tain persons  free  or  at  reduced  rate, 
see  Contracts,  212. 

Enforcement  of  contract  to  give  passes  ren- 
dered illegal  by  subsequent  passage  of 
statute,  see  Contracts,  633,  634,  766. 

Validity  of  agreement  between  carrier  and 
citizens  of  municipality  for  issuance  of 
special  rate  tickets,  see.  Monopoly  and 
Combinations,  7. 

Prohibiting  officer  from  riding  on  free  pass, 
see  Officers,  83. 

Retrospective  effect  of  statute  prohibiting 
contracts  for  free  transportation,  see 
Statutes,  299. 

1059.  A  statute  prohibiting  the  issuance, 
acceptance,  and  use  of  free  transportation 
is  within  the  power  of  the  state  to  regulate 
the  business  of  common  carriers  by  pre- 
venting unjust  discriminations.  State  v. 
Martyn,  23:  217,  117  N.  W.  719,'82  Neb.  225. 

1060.  A  particular  minister  of  the  Gospel 
whom  a  carrier  refuses  to  carry  for  the 
customary  reduced  fare  charged  such  per- 
sons has  no  right  of  action  against  the 
carrier  because  of  the  discrimination.  Il- 
linois C.  R.  Co.  V.  Dunnigan,  24:  503,  50  So. 
443,  95  Miss.  749. 

1061.  An  interstate  carrier  cannot  make  a 
valid  contract  to  issue  annual  passes  for 
life  in  consideration  of  a  release  of  a  claim 
for  damages  since  the  enactment  of  the  act 
of  June  29,  1906,  §  6,  expressly  prohibit- 
ing any  carrier  from  demanding,  collect- 
ing, or  receiving  "a  greater  or  less  or  dif- 
Digest  1-52  t.R.A.(N.S.) 


forent  compensation"  for  the  transporta- 
tion of  i^ersons  or  property,  or  for  any 
service  in  connection  tiierewith,  than  that 
specified  in  its  publislicd  schedule  of  rates. 
Louisville  &  N.  R.  Co.  v.  Mottley,  34:  671, 
31  Sup.  Ct.  Rep.  265,  219  U.  S.  467,  55  L. 
ed.  297. 

1062.  Transportation  of  stockholders  of  a 
railroad  company  to  and  from  their  annual 
meetings,  without  charge,  in  accordance  with 
the  provisions  of  a  lease  of  the  road,  is  not 
free,  within  the  meaning  of  a  statute,  en- 
acted after  the  execution  of  the  lease,  for- 
bidding, under  penalty,  railroad  companies 
to  give  free  transportation.  Emerson  v. 
Boston  &  M.  R.  Co.  27:  331,  75  Atl.  529,  75 
N.  H.  427. 

1063.  A  statute  forbidding  railroad  compa- 
nies to  give  free  transportation  will  not 
be  construed  to  invalidate  the  provisions  of 
an  existing  lease,  requiring  the  lessee  to 
transport  stockholders  of  the  lessor  to  and 
from  their  annual  meetings,  free  of  charge. 
Emerson  v.  Boston  &  M.  R.  Co.  27:  331,  75 
Atl.  529,  75  N.  H.  427. 

1064.  Under  constitutional  and  statutory 
provisions  forbidding  discrimination  in 
rates  by  carriers  between  the  same  classes 
of  passengers,  free  transportation  or  special 
rates  may  be  given  to  employees  of  the  is- 
suing road  and  their  families;  doctors, 
nurses,  and  helpers  being  hurried  to  wrecks; 
soldiers  and  sailors  going  to  or  coming 
from  institutions  for  their  keeping;  minis- 
ters of  religion  and  persons  engaged  in 
charitable  and  religious  work;  and  children 
and  persons  who,  by  reason  of  physical  in- 
juries, defects,  or  deformities,  or  other  mis- 
fortune, are  unable  to  compete  with  man- 
kind in  general.  John  v.  Northern  P.  R. 
Co.  32:  85,  111  Pac.  632,  42  Mont.   18. 

1065.  The  giving  by  railroad  companies  of 
passes  even  to  employees  of  other  railroad 
companies  is  prohibited  by  constitutional 
and  statutory  provisions  that  all  individ- 
uals shall  have  equal  rights  to  have  persons 
transported  on  railroads,  and  no  discrimi- 
nation in  charges  shall  be  made,  and  that 
it  is  unlawful  for  any  carrier  to  charge  any 
person  any  greater  sum  for  a  ticket  than  is 
charged  another  for  a  similar  ticket  of  the 
same  class.  John  v.  Northern  P.  R.  Co. 
32:  85,  111  Pac.  632,  42  Mont.  18. 

1066.  A  contract  by  a  railroad  company  to 
furnish  the  proprietors  of  a  newspaper,  as 
requested,  transportation  at  the  statutory 
rate  under  certain  limitations  and  restric- 
tions not  required  in  ordinary  tickets,  in 
payment  for  advertising  to  be  furnished 
"at  agreed  rates,"  which  rates  are  not 
specified  in  the  contract,  but  are  to  be  set- 
tled by  the  parties  themselves  by  another 
agreement,  contravenes  the  statutes  prohib- 
iting unjust  discriminations,  which  seek  to 
preserve  to  every  individual  an  equal  right 
to  the  transportation  services  of  common 
carriers  upon  equal  terms  with  every  other 
individual.  State  v.  Union  Pacific  R.  Co. 
31:657,  126  N.  W.  859,  87  Neb.  29. 

(Annotated) 

1067.  A  pass  issued  to  a  physician  who  con- 
tracts to  perform  certain  services  for  a  rail- 


CARRIERS,  IV.  d. 


439 


road  company  in  consideration  of  a  certain 
sura  per  '  month  and  an  annual  pass  is,  in 
contemplation  of  law,  a  free  pass,  if  the 
services  do  not  require  a  major  portion  of 
the  physician's  time.  State  v.  Martyn,  23: 
217,  117  N.  W.  719,  82  Neb.  225. 

1068.  A  contract  between  a  railroad  com- 
pany and  a  physician,  by  the  terms  of  which 
he  is  to  receive  for  professional  services  to 
be  rendered  by  him  for  the  company,  at 
its  request,  $25  per  month  and  an  annual 
pass  over  its  lines,  where  the  physician  does 
not  spend  a  major  portion  of  his  time  in  the 
employment  of  the  company,  is  prohibited 
by  a  statute  making  it  a  penal  offense  for 
a  railroad  to  give,  or  any  person  not  ex- 
pressly excepted  thereby  to  receive  and  use, 
free  transportation,  when  the  physician  is 
not  within  the  excepted  class;  and  a  physi- 
cian who  accepts  and  uses  such  a  pass  vio- 
lates the  statute.  State  v.  Martvn,  23:  217, 
117  N.  W.  719,  82  Neb.  225.  (Annotated) 
Against    commodities. 

See  also  supra,  1047. 

1069.  The  carrier's  common-law  obligation 
indifferently  to  serve  the  public  in  the  re- 
ceipt and  transportation  of  goods  does  not 
inhibit  a  carrier  by  sea  from  making  spe- 
cific arrangements  in  advance  for  the  trans- 
portation of  certain  goods  by  a  particular 
vessel,  provided  that  privilege  is  indifferent- 
ly extended  to  all  patrons,  or  if  the  grant  of 
such  privilege  to  shippers  of  that  commodity 
does  not  interfere  with  the  carrier's  dis- 
charge of  duty  to  the  shippers  of  other  com- 
modities with  respect  to  the  receipt  and 
transportation  of  their  goods.  Ocean  Steam- 
ship Co.  v.  Savannah  Locomotive  Works  & 
S.  Co.  20:  867,  63  S.  E.  577,  131  Ga.  831. 

1070.  A  common  carrier  by  sea  cannot  law- 
fully reject  lumber,  a  commodity  which  it 
professes  to  carry,  and  afterwards  receive 
and  transport  cotton  and  other  goods,  where, 
at  the  time  of  the  tender,  there  was  room  in 
the  vessel  for  the  rejected  lumber,  and  the 
safety  of  the  vessel  would  in  no  wise  be  im- 
periled. Ocean  Steamship  Co.  v.  Savannah 
Locomotive  Works  &  S.  Co.  20:  867,  63  S.  E. 
577,  131  Ga.  831. 

Discrimination  by  lessee. 

1071.  A  railroad  company  is  not  liable  for 
discrimination  in  siding  facilities,  made 
contrary  to  the  provisions  of  a  statute,  by 
its  lessee,  against  an  adjoining  mill  owner, 
after  the  lease  was  executed,  and  the  lessee 
had  gone  into  possession  of  the  property. 
Moser  v.  Philadelphia.  H.  &  P.  R.  Co.  40: 
519,  82  Atl.  362,  233  Pa.  259. 

(Annotated) 

Rebates. 

Jurisdiction  of  crime  of  receiving  or  giving 
rebate,  see  Courts,  34. 

Criminal  intent  to  violate  interstate  com- 
merce act,  see  Criminal  Law,  11. 

Prosecution  for  inducing  shippers  to  re- 
ceive, see  Criminal  Law,  220;  Evi- 
dence, 843,  1890;  Indictment,  etc.,  44, 
67,  80,  81;  Monopoly  and  Combina- 
tions, 72,  73. 

By  telephone  company,  see  Telephones,  24. 

1072.  An  allowance  to  a  packer  of  a  certain 
Bum  per  car  for  the  use  of  his  private  track 
Digest  1—52  I..R.A.(N.S.) 


in  hauling  freight  from  his  plant  out  to 
his  property  line,  where  the  track  joins  that 
of  a  carrier  forming  part  of  an  interstate 
system,  which  is  in  the  form  of  a  refund 
of  terminal  charges,  is  an  illegal  rebate  un- 
der the  Elkins  act.  Chicago  &  A.  R.  Co.  v. 
United  States,  26:  551,  156  Fed.  558,  84  C. 
C.  A.  324.  (Annotated) 

1073.  The  giving  or  receiving  of  a  rebate 
or  concession,  whereby  property  in  inter- 
state or  foreign  commerce  is  transported  at 
less  than  the  established  rate,  is  the  essence 
of  the  offense  denounced  by  the  Elkins  act 
(act  February  19,  1903,  chap.  708,  32  Stat, 
at  L.  847;  U.  S.  Comp.  Stat.  Supp.  1905,  p. 
599).  Armour  Packing  Co.  v.  United  States, 
14:  400,  153  Fed.  1,  82  C.  C.  A.  135. 

1074.  An  unfounded  belief  on  the  part  of 
a  shipperj  that  by  means  of  a  contract  with 
a  carrier  it  can  annul  or  evade  the  plain 
declaration  of  the  Elkins  act  (act  February 
19,  1903,  chap.  708,  32  Stat,  at  L.  84-7;  U. 
S.  Comp.  Stat.  Supp.  1905,  p.  599),  forbid- 
ding the  giving  or  receiving  of  a  rebate  or 
concession  from  the  established  rate  for  the 
transportation  of  goods,  is  but  an  error  of 
law,  which  constitutes  no  defense  to  a  prose- 
cution for  violating  the  provisions  of  the 
statute.  Armour  Packing  Co.  v.  United 
States,  14:  400,  153  Fed.  1,  82  C.  C.  A.  135. 

1075.  The  meaning  of  the  clause  "by  any 
device  whatever,"  in  the  Elkins  act  (act 
February  19,  1903,  chap.  708,  32  Stat,  at  L. 
847;  U.  S.  Comp.  Stat.  Supp.  1905,  p.  599), 
forbidding  the  giving  or  receiving  of  a  re- 
bate or  concession  from  the  established  rate, 
for  the  transportation  of  goods,  is  "directly 
or  indirectly,"  or  "in  any  way  whatever." 
Armour  Packing  Co.  v.  United  States,  14: 
400,  153  Fed.  1,  82  C.  C.  A.  135. 

1076.  A  rebate,  or  a  concession,  from  a 
part  of  a  single  rate,  whereby  property  is 
transported  thereunder  at  a  less  rate  than 
the  established  rate,  is  a  concession  from  the 
entire  rate,  and  renders  all  transportation 
thereunder  illegal.  Armour  Packing  Co.  v. 
United  States,  14:  400,  153  Fed.  1,  82  C.  C. 
A.  135. 

d.  Duty  as  to  depots,  agents,  and  fa- 
cilities; stopping  trains;  duty  to 
run  trains. 

As  to  safety  of  approaches  and  platform,  see 
supra,  II.  1. 

Grant  of  exclusive  privilege  to  hacks,  car- 
riages, etc.,  see  supra,  1007-1013. 

Conveyance  to  railroad  in  consideration  of 
agreement  to  maintain  depot  on  land 
conveyed,  see  Covenants  and  Condi- 
tions, 8. 

Injunction  against  enforcement  of  order  of 
railroad  commission  as  to  maintenance 
of  depot,  see  Injunction,  325. 

Injunction  to  prevent  breach  of  covenant  to 
run  trains,  see  Injunction,  24. 

Right  to  jury  upon  review  of  order  of  cor- 
poration commission  as  to  depot  facili- 
ties, see  Jury,  15. 

Reasonableness  of  requiring  railroad  com- 
pany to  run  trains  over  abandoned 
route,  see  Pleading,  641. 


440 


CARRIERS,  IV.  d. 


Review  by  courts  of  order  of  public  service 
commission,  see  Public  Service  Com- 
mission-, 10-19. 

Reasonableness  of  order  of  public  service 
commission  as  to  maintenance  of  depot, 
see  Public  Service  Commission,  17, 
18. 

1077.  An  order  of  a  state  railroad  com- 
mbsion  directing  a  railroad  company  that 
already  has  a  station  at  a  certain  town  to 
"open  its  station  .  .  .  for  the  purpose 
of  affording  accommodations  to  the  trav- 
eling public,"  is  sufficiently  definite  to  in- 
form the  company  as  to  what  is  required. 
Scwtitd  V.  Denver  &  R.  G.  R.  Co.  46:  242, 
131  Pac.  980,  17  N.  M.  557. 

1078.  An  order  of  a  state  corporation  com- 
mission, directing  a  railroad  company  to 
open  its  station  and  "provide  suitable 
seats,  fuel,  and  water  for  the  comfort  of 
the  passengers,"  is  not  sufficiently  definite 
to  be  enforceable.  Seward  v.  Denver  &  R. 
G.  R.  Co.  46:  242,  131  Pac.  980,  17  N.  W.  557. 

1079.  While  it  is  the  absolute  duty  of  a 
railroad  company  to  transport  freight  and 
passengers,  it  is  only  an  incidental  duty 
to  provide  depots,  waiting  rooms,  station 
agents,  and  telephone  and  telegraph  facili- 
ties. Seward  v.  Denver  &  R.  G.  R.  Co.  46: 
242,  131  Pac.  980,  17  N.  M.  557. 

1080.  It  not  being  the  absolute  duty  of  a 
railroad  company  to  provide  depots,  wait- 
ing rooms,  station  agents,  and  telephone 
and  telegraph  facilities,  when  the  railroad 
company  is  called  upon  to  provide  such 
facilities  the  question  of  expense  becomes 
important  in  determining  the  reasonable- 
ness of  such  a  requirement  of  the  company. 
Seward  v.  Denver  &  R.  G.  R.  Co.  46:  242, 
131  Pac.  980,  17  N.  M.  557. 

1081.  Under  a  constitutional  provision  au- 
thorizing the  railroad  commission  to  re- 
quire railway  companies  to  maintain  ade- 
quate depots,  station  buildings,  agents,  and 
facilities  for  the  accommodation  of  pas- 
sengers and  for  receiving  and  delivering 
freight  and  express  as  may  be  reasonable 
and  just,  the  commission,  in  determining 
what  are  adequate  facilities,  must  take  into 
consideration  the  volume  of  business,  the 
revenue  derived  by  the  railroad  therefrom, 
the  number  of  people  to  be  accommodated, 
the  present  facilities,  and  all  the  facts  and 
circumstances,  considering,  on  the  one 
hand,  the  rights  of  the  stockholders  of  the 
railroad,  and,  on  the  other,  the  rights  of 
the  public.  Seward  v.  Denver  &  R.  G. 
R.  Co.  46:  242,  Vol  Pac.  980,  17  N.  M.  557. 

1082.  A  statute  authorizing  railroad  com- 
missioners to  make  and  enforce  lawful, 
just,  and  reasonable  rules  and  regulations 
requiring  railroad  companies  to  establish 
and  maintain  passenger  depots,  facilities, 
and  accommodations  that  are  reasonably 
adequate  and  suitable  for  the  safety,  com- 
fort, and  convenience  of  all  who  have  a 
right  to  use  such  facilities,  includes  the 
right  to  require  adequate  waiting  rooms, 
toilet  rooms,  baggage  room,  sheds,  and 
lights.  Louisville  &  N.  R.  Co.  v.  Burr, 
44:  189,  58  So.  543,  63  Fla.  491. 

Digest  1-52  Ii.R.A.(N.S.) 


1083.  That  a  station  ordered  by  a  railway 
commission  will  not  pay  expenses  does  not 
render  the  order  confiscatory  in  effect,  where 
the  revenue  from  the  entire  road  in  the  state 
at  least  will  not  be  relatively  diminished 
to  any  great  extent.  Chicago,  R.  I.  &  P.  R. 
Co.  v.  Nebraska  State  R.  Com.  26:  444,  124 
N.  W.  477,  85  Neb.  818.  (Annotated) 

1084.  The  moving  of  a  railroad  station 
less  than  400  feet  for  the  better  accommo- 
dation of  the  public  is  not  an  abandonment 
of  the  station,  within  the  meaning  of  a 
statute  requiring  consent  of  the  railroad 
commissioners  to  such  abandonment.  Louis- 
ville &  I.  R.  Co.  v.  Callahan,  34:  412,  136 
S.  W.  1018,  143  Ky.  517.  (Annotated) 
Stopping    trains. 

Review  of  order  requiring  stopping  of  in- 
terstate trains,  see  Appeal  and  Erbob, 
1018. 

Ordinance  as  to  stopping  of  interurban 
cars,  see  Constitutional  Law,  685. 

Contracts  or  covenant  to  establish  station 
and  stop  trains,  see  Contracts,  368, 
507-509;  628;  Covenants  and  Condi- 
tions, 130,  131;  Parties,  42;  Plead- 
ing, 195,  654;  Specific  Performance, 
25. 

1085.  An  order  of  a  state  railroad  com- 
mission requiring  a  railroad  company  to 
stop  another  interstate  train  at  a  specified 
local  town  on  its  line  whei  i  proper  and 
adequate  passenger  facilities  r.re  otherwise 
afl'orded  is  unreasonable.  Missouri,  K.  &  T. 
R.  Co.  V.  State,  29:  159,  107  Fkc.  172,  25 
Okla.  325.  (Annotated) 

1086.  It  is  within  the  power  of  a  railroad 
commission  to  require  a  railroad  company 
to  stop  one  local  train  each  way  a  day  at  a 
platform  half  way  between  two  stations  be- 
tween 7  and  8  miles  apart  for  the  accommo- 
dation of  sixty-four  families;  and  such  an 
order  is  not  so  clearly  unreasonable  that 
courts  will  interfere  with  it  when  having 
power  to  vacate  orders  of  the  commission 
which  are  shown  by  clear  and  satisfactory 
evidence  to  be  unreasonable.  Minneapolis, 
St.  P.  &  S.  Ste,  M.  R.  Co.  v.  Railroad  Com. 
17:  821,  116  N.  W,  905,  136  Wis.  146. 

(Annotated) 

Telegraph  and  telephone  facilities. 

Review  on  appeal  of  findings  as  to  neces- 
sity of  telephone  at  station,  see  Appeal 
and  Error,  465,  1016. 

Review  on  appeal  of  findings  as  to  necessity 
of  keeping  telegraph  operator  at  sta- 
tion, see  Appeal  and  Error,  1017. 

See  also  supra,  1079,  1080;  Public  Service 
Commission,  5. 

1087.  While  a  railway  company,  under  the 
New  Mexico  Constitution,  may  be  required 
to  provide  and  maintain  adequate  facilities 
and  may,  upon  a  proper  showing,  be  re- 
quired to  maintain  a  telegraph  station  and 
agent  for  the  accommodation  of  passengers 
and  for  receiving  and  delivering  freight 
and  express,  it  cannot,  independent  of  its 
duties  as  a  common  carrier,  be  required  to 
furnish  telegraph  facilities  so  that  the  pub- 
lic  may   commercially   derive   conveniences 


CARRYING  ON  BUSINESS:    CARRYING  WEAPONS. 


441 


therefrom.     Woody  v.   Denver  &  R.  G.  R. 
Co.  47:  974,  132  Pac.  250,  17  N.  M.  686. 

(Annotated) 

1088.  It  is  not  reasonable  to  require  the 
installation  of  telegrapli  service  for  the 
purpose  of  bulletining  trains,  where  the 
cost  of  such  service  is  out  of  proportion 
to  the  revenue  derived  from  that  portion 
of  the  traveling  public  benefited  thereby. 
Seward  v.  Denver  &  R.  G.  R.  Co.  46:  242, 
131  Pac.  980,  17  N.  M.  557. 

1088a.  A  railway  company  cannot  be  rea- 
sonably and  justly  required  by  the  state 
corporation  commission  to  install  and  main- 
tain a  telegraph  operator  at  a  station,  un- 
less it  is  reasonably  necessary  for  the  safe- 
ty and  expedition  of  the  tr.;in  service,  both 
freight  and  passenger,  or  either,  and  the 
convenience  of  the  public  in  the  conduct  of 
the  freight  and  passenger  service,  or  eitlier. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  State,  24:  393, 
103  Pac.  617,  24  Okla.  317. 

1088b.  A  telephone  is  a  facility  and  con- 
venience which  a  railroad  company  may  be 
required  to  install,  under  Okla.  Const,  art. 
9,  §  18,  providing  that  the  corporation  com- 
mission shall  require  a  public-service  cor- 
poration to  establish  and  maintain  all  such 
public  service  facilities  and  conveniences  as 
may  be  reasonable  and  just,  as  it  is  an  in- 
dispensable aid  in  the  conduct  of  the  busi- 
ness of  a  common  carrier  at  any  center  of 
population.  Atchison,  T.  &  S.  F.  R.  Co.  v. 
State,  21:  908,  100  Pac.  11,  23  Okla.  210. 
Station  agent. 
See  also  supra,  1079-1081. 

1089.  It  is  unreasonable  to  require  the 
maintenance  of  an  agent  at  a  railroad  sta- 
tion where  the  yearly  receipts  are  about 
$2,000,  at  a  cost  of  about  one  half  such 
receipts,  and  where  there  is  no  claim  that 
an  agent  is  necessary  for  the  proper  oper- 
ation of  the  trains  run  by  the  company 
for  the  safety  of  the  traveling  public,  and 
the  incoming  freight  is  unloaded  by  the 
railroad  employees  and  stored  in  a  freight 
room  where  it  is  protected  from  pillage  and 
the  elements,  and  where  only  one  person 
is  complaining  of  the  facilities.  Seward  v. 
Denver  &  R.  G.  R.  Co.  46:  242,  131  Pac.  980, 
17  N.  M.  557.  (Annotated) 


CARRYING  ON  BUSINESS. 

What  constitutes,   see   Cobpoeations,   415- 

423. 
By  personal  representative,  see  Executors 

AND  Administrators,  47-50,  67,  68. 


CARRYING    WEAPONS. 

Evidence  as  to  reason  for,  in  prosecution 
for   homicide,   see   Evidence,    1636. 

Forfeiture  of  weapons  unlawfully  carried, 
see  Forfeiture,  4. 

Digest  1-52  Ii.R.A.(N.S.) 


Effect  of  carrying  weapon  contrary  to  law 
on  right  to  use  it  in  self-defense,  see 
Homicide,  91. 

1.  The  provision  of  §  4  of  the  Kansas 
Bill  of  Rights,  which  declares  that  "the 
people  have  the  right  to  bear  arms  for  their 
defense  and  security,"  is  a  limitation  on 
legislative  power  to  enact  laws  prohibiting 
the  bearing  of  arms  in  the  militia,  or  any 
other  military  organization  provided  for 
by  law,  but  is  not  a  limitation  on  legis- 
lative power  to  enact  laws  prohibiting  and 
punishing  the  promiscuous  carrj'ing  of 
arms  or  other  deadly  weapons.  Salina  v. 
Blaksley,  3:  168,  83  Pac.  619,  72  Kan.  230, 

(Annotated) 

2.  The  provisions  of  .Wilson's  Okla.  Rev. 
&  Ann.  Stat,  of  1903,  §§  2502,  2503,  prohibit- 
ing the  carrying  of  certain  weapons  not  rec- 
ognized in  civil  warfare,  are  not  repugnant 
to  each  other  or  violative  of  article  2,  §  26 
of  the  Bill  of  Rights  of  the  Oklahoma  Con- 
stitution, granting  citizens  the  right  to  keep 
and  carry  arms,  subject  to  legislative  control 
of  the  carrying  of  weapons,  but  are  valid 
provisions  under  the  enabling  act  and  §  2  of 
the  schedule  of  the  Constitution,  extending 
territorial  laws  to  the  state  of  Oklahoma. 
Ex  parte  Thomas,  20:  1007,  97  Pac.  260,  21 
Okla.  770,. 21  Okla.  Crim.  Rep.  210. 

( Annotated ) 

3.  A  constitutional  right  to  bear  arms 
is  not  infringed  by  forbidding  the  carrying 
of  revolvers  without  a  license.  Strickland 
V.  State,  36:  115,  72  S.  E.  260,  137  Ga.  1. 

(Annotated) 

4.  Carrying  in  the  hand  a  pair  of  sad- 
dlebags with  the  lids  down,  which  contain 
a  pistol,  which  is  hidden  from  common  ob- 
servation, is  not  a  violation  of  a  statute 
making  it  an  offense  to  carry  a  pistol  about 
the  person,  hidden  from  common  observa- 
tion. Sutherland  v.  Com.  23:  172,  65  S.  E. 
15,  109  Va.  834.  (Annotated) 
"What   xreapons   may  be   carried. 

5.  That  a  pistol  has  become  defective, 
in  that  it  has  losfe  its  hammer  and  main- 
spring, does  not  destroy  its  character  as  a 
pistol  within  the  meaning  of  a  statute  im- 
posing a  penalty  for  carrying  such  a  weap- 
on concealed.  Mitchell  v.  State,  34:1174, 
55  So.  354,  99  Miss.  579.  (Annotated) 

6.  A  pistol  filled  vnth  dirt  and  so  rusty 
that  it  cannot  be  loaded  or  unloaded, 
opened  or  fired,  is  not  within  the  law  against 
carrying  concealed  weapons.  Burnside  v. 
State,  45:  780,  62  So.  420,  105  Miss.  408. 

7.  A  razor  is  not  within  a  statute  mak- 
ing it  an  offense  to  carry  concealed  any  toy 
pistol,  glass,  or  metallic  knuckles,  slung 
shot,  or  other  deadly  weapon  of  like  kind 
or  description.  Brown  v.  State,  46:  700,  62 
So.  353,  105  Miss,  367, 

"What   will  justify   carrying. 

8.  A  deputy  sheriff  who,  having  a  war- 
rant for  the  arrest  of  persons  in  his  county, 
upon  hearing  they  are  in  an  adjoining 
county,  goes  there  in  search  of  them,  has 
no  authority  to  carry  a  weapon  concealed 
about  his  person.  Shirley  v.  State,  38:998, 
67   So.  221,  100  Miss.  799.  (Annotated) 


442 


CARS— CASE,  I. 


CARS. 

Attachment    of    foreign    railroad    cars,    see 

Action  or  Suit,  42;  Attachment,  23; 

CoMMKRCE,  21-24;  Levy  and  Seizure, 

15,  16,  29. 

Carrier's  duty  to  passenger  as  to,  generally, 

see  Carriers,  II.  g,  c. 
Injury  to  passenger  by  fall  of  car  window, 

see  Carriers,  203. 
Carrier's   liability   for   leaving  windows  of, 

open,  see  Carriers,   220. 
Carrier's  duty  to  heat,  see  Carriers,  257- 

259.  * 

Injury  to  caretaker  of  stock   by   defective 

car,  see  Carriers,  136,  328. 
Injury  caused  by  defect  in,  to  employee  of 
consignee    or    shipper,    see    Carriers, 
758-762. 
Loss  of,  or  injury  to,  property  by  failure  to 
furnish  proper  cars,  see  Cabriers,  808- 
810. 
Duty  to  furnish  refrigerator  cars,  see  Car- 
riers, 811-813. 
For  shipment  of  live  stock,  safety  of,  see 

Carriers,  897-901. 
Sufficiency   of   evidence   to   show   negligence 
of  carrier  in  furnishing  defective  car, 
see  Evidence,  ^148. 
Carrier's   contract  or   duty  to   furnish,   see 

Carriers,  III.  h. 
Penalty  for  failure  to  furnish,  as  regulation 

of  commerce,  see  Commerce,  88-93. 
Damages  for  failure  to  furnish,  or  delay  in 
furnishing,  see  Damages,  282-284,  695. 
Election    of    remedy    in    case    of    carrier's 
failure    to    furnish,    see    Election    of 
Remedies,  11. 
Allegation  as  to  failure  or  refusal  to  fur- 
nish, see  Pleading,  421,  422. 
Demurrage  on,  see  Carriers,  III.  i. 
Grant  of  exclusive  privilege  to  use  for  ad- 
vertising, see  Contracts,  429. 
Duty  of  seller  to  furnish  cars  for  shipment, 
see   Contracts,   381,   382;    Sale,    139, 
140. 
Effect  of  diflSculty  in  obtaining,  on  seller's 

liability  for  delay,  see  Sale,  102. 
Injunction  against  storage  of,  in  street,  see 

Injunction,  384. 
Insurance  of  private  railroad  cars,  see  In- 
surance, 658,  790. 
Failure  to  warn  inspector  of  dangerous  con- 
dition of  car,  see  Master  and   Serv- 
ant, 238. 
Duty  of  master  to  inspect  foreign  cars,  see 

Master  and  Servant,  449. 
Injury  to  employee  by,  generally,  see  Mas- 
ter AND  Servant,  II.  a,  4,  d,  3. 
Assumption  of  risk  as  to,  see  Master  and 

Servant,  539,  540,  560,  569,  570. 

Contributory  negligence  of  employee  as  to, 

see  Master  and  Servant,  693-702. 


CARTMEN. 


Liability  of  baggage  transfer  company,  see 

Carriers,  682. 
Digest  1-52  Ii.R.A.(N.S.) 


Discrimination  between,  bv  carrier,  see  Car- 
riers, 1007-1013. 

License  tax  on  wagons  used  by,  see  License, 
116. 


CASE. 

/.  In  general,  1—23. 
II.  Inducing   breach   of   contract,    24^— 
43. 

Right  of  action  for  unlawful  combination, 
see  Conspiracy. 

Damages  for  preventing  person  from  se- 
curing contract,  see  Damages,  3. 

Right  of  action  for  causing  death,  see 
Death. 

Presumption  from  suppression  of  evidence, 
see  Evidence,  307. 

Injuries  by  fright,  see  Fright. 

Power  of  municipality  as  to  wrongful  dis- 
position of  debtor's  property,  see  Mu- 
nicipal Corporations,  178. 

Liability  of  seller  or  manufacturer  for  in- 
jury due  to  defects,  see  Negligence,  I. 
b,  2. 

Trespass  on  the  case  against  agent  sign- 
ing principal's  name  to  contract,  see 
Principal  and  Agent,   119. 

Liability  for  seduction,  see  Seduction. 

I.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  The  rightful  use  of  one's  own  land 
may  in  some  instances  cause  damage  to 
another,  and  yet  constitute  no  legal  wrong 
nor  entitle  the  person  damaged  to  any  reme- 
dy. Bellevue  v.  Daly,  15:  992,  94  Pac.  1036, 
14  Idaho,  545. 

2.  No  action  lies  for  causing  the  re- 
lapse of  a  convalescent  woman  by  calling 
her  over  the  telephone  during  her  husband's 
known  absence  and  with  threatening  and 
abusive  language  ordering  her  to  take 
charge  of  her  husband's  cattle,  which  had 
escaped  from  their  inclosure,  under  penalty 
of  a  threatened  visit  to  her  home  to  avenge 
the  speaker  of  the  assumed  wrong  inflicted 
by  failure  to  keep  the  cattle  inclosed. 
Kramer  v.  Ricksmeier,  45  c  928,  139  N.  W. 
1091,  159  Iowa,  48. 

3.  A  petition  in  an  action  by  a  widow 
against  the  stockholders  of  a  corporation 
to  recover  damages  for  the  tortious  homi- 
cide of  her  husband,  it  being  alleged  that 
the  defendants,  in  pursuance  of  a  conspiracy 
to  bring  about  the  death  of  her  husband, 
had  written  a  letter  calling  upon  him  ta 
resign  his  official  position  in  the  corpora- 
tion, of  which  the  defendants  were  stock- 
holders and  he  was  vice-president,  and  ad- 
vising him  not  to  inquire  into  the  reasons 
for  the  demand;  that,  owing  to  the  nervous 
condition  of  the  decedent  and  impaired 
mental  and  physical  condition,  this  letter, 
which  was  delivered  to  and  read  by  him, 
had   the   effect   of   causing   him   to   take   a 


CASE,  I. 


443 


portion  of  some  narcotic  or  drug,  which 
caused  his  death;  and  that  the  defendants 
knew  that  tlie  letter  would  produce  this 
effect  and  hring  about  the  death,  and  in- 
tended that  it  should,  does  not  state  a  cause 
of  action.  Stevens  v.  Steadman,  47:  1009, 
79  S.  E.  5G4,  140  Ga.   680.        (Annotated) 

4.  A  wife  has  an  interest  in  and  a  right 
to  the  possession  and  quiet  enjoyment  of  the 
homestead  of  herself  and  husband,  although 
the  legal  title  thereto  is  in  hira;  and  an 
unlawful  invasion  of  the  premises  by  tres- 
passers who,  in  her  presence,  ransack  the 
house  and  interfere  Avith  her  personal  effects, 
is  a  legal  wrong  against  her.  Lesch  v. 
Great  Northern  R.  Co.  7:  93,  106  N.  W.  955, 
97  Minn.  503. 

5.  One  who  violates  a  penal  statute  for- 
bidding the  assigning  of  a  claim  against 
a  wage  earner  out  of  the  state  for  collec- 
tion where  employer  and  employee  are  both 
found  in  the  state,  and  the  wages  are  ex- 
empt from  execution,  is  liable  in  a  civil 
action  for  the  damages  thereby  inflicted 
upon  the  wage  earner.  Markley  v.  Murphy, 
47:  689,  102  N.  E.  376,  180  Ind.  4. 

(Annotated) 

6.  One  who  makes  false  statements  to 
a  bonding  company  which  result  in  its  with- 
drawing from  tlie  bond  of  a  bank  cashier 
is  liable  for  the  damages  caused  thereby, 
which  may  be  increased  if  he  acted  ma- 
liciously. McClure  v.  McClintock,  42:  388, 
150  S.  W.  332,  849,  150  Ky.  265,  773. 

(Annotated) 

7.  A  person  who  has  been  convicted  of 
a  crime,  and  against  whom  the  conviction 
stands  unreversed,  cannot  maintain  an  ac- 
tion against  a  witness  for  negligently  giv- 
ing false  evidence  which  caused  him  to  be 
wrongfully  so  convicted,  even  though  the 
conviction  is  one  from  which  there  can  be 
no  appeal.  Bynoe  v.  Bank  of  England,  3 
B.  R.  C.  247,  [1902]  1  K.  B.  467.  Also  Re- 
ported in  71  L.  J.  K.  B.  N.  S.  208,  50  Week. 
Rep.  359,  86  L.  T.  N.  S.  140,  18  Times  L. 
R.  276.  (Annotated) 

8.  That  an  agreement  may  create  a  mo- 
nopoly, be  in  restraint  of  trade,  or  opposed 
to  public  policy,  gives  third  persons  no 
right  of  action  for  damages  for  injury 
caused  them  by  its  enforcement,  or  to  en- 
join threatened  injury.  National  Fireproof- 
ing  Co.  V.  Mason  Builders'  Asso.  26:  148, 
94  C.  C.  A.  535,  169  Fed.  259.      (Annotated) 

9.  In  a  civil  action  in  which  the  de- 
fendant answers  by  a  general  denial,  and 
verifies  his  answer,  but  asks  no  affirmative 
relief,  and  judgment  is  finally  rendered 
against  him  in  the  action,  he  is  not  responsi- 
ble in  another  action  for  damages  for  ex- 
penses incurred  in  obtaining  proof  to  sus- 
tain the  allegations  of  the  petition,  al- 
though the  defendant  knew  at  the  time  he 
answered  that  the  allegations  were  true, 
and  that  his  verified  denial  would  involve 
the  plaintiff  in  considerable  expense  to  es- 
tablish the  truth  thereof.  Baxter  v.  Brown, 
34:  1026,   111  Pac.  430,  83  Kan.   302. 

(Annotated) 
10.  As  against  a  trespasser  a  malicious 
or   intentional    injury    is   actionable,    while 
Digest  1-52  Ii.R.A.(N.S.) 


a  merely  negligent  act  will  not  form  the 
basis  of  recovery,  because  the  duty  to  ob- 
serve reasonable  care  is  not  owing  to  the 
trespasser.  Hoberg  v.  Collins,  L.  &  Co. 
(N.  J.  Err.  &  App.)  31:  1064,  78  Atl.  167, 
80  N,  J.  L.  425. 

11.  MaliciouS  evasion  of  a  tender  of 
money  necessary  to  prevent  a  foreclosure  of 
a  land  contract,  by  reason  of  which  the  pur- 
chaser loses  the  profits  on  a  resale  which  he 
had  negotiated,  does  not  give  a  right  of  ac- 
tion for  tort.  Loehr  v.  Dickson,  30:  495, 
124  N.  W.  293,  141  Wis.  332. 

12.  A  son-in-law  has  no  right  of  action 
because  he  is  maliciously  excluded  by  his 
father-in-law  from  the  latter's  premises  dur- 
ing the  burial  service  of  his  child,  the  cus- 
tody of  which  was  awarded  to  the  mother  in 
divorce  proceedings,  and  which  was  taken 
by  her  to  reside  at  her  father's  house. 
Rader  v.  Davis,  38:  131,  134  N.  W.  849,  154 
Iowa,  306. 

For  bi'eacli   of   contract. 

13.  Trespass  on  the  case  lies  in  favor  of 
a  property  owner  to  recover  unliquidated 
damages  for  the  breach  of  a  building  con- 
tract. Bagaglio  v.  Paolino,  44:  80,  85  Atl. 
1048,  1136,  35  R.  I.  171. 

Sliadow^ing    person. 

Mitigation  of  damages  for  illegal  shadow- 
ing, see  Damages,  714. 

Parties  defendant  in  action  for  illegal 
shadowing,   see  Paeties,   155. 

14.  Publicly  and  openly  to  follow  and 
watch  or  shadow  one  for  a  period  of  time 
is  an  actionable  wrong.  Schultz  v.  Frank- 
fort Marine  Acci.  &  Plate  Glass  Ins.  Co. 
43:  520,  139  N.  W.  386,  151  Wis.  537. 

(Annotated) 
Preventing  employment  of  person. 
Pleading  in  action  for  preventing  plaintiff 
from  obtaining  employment,  see  Plead- 
ing, 404-406. 

15.  One  protesting  against  the  employ- 
ment of  another,  for  the  sole  purpose  of  in- 
juring him,  may  be  held  liable  for  the  dam- 
ages due  to  the  consequent  loss  of  employ- 
ment. Huskie  v.  Griffin,  27:  966,  74  Atl. 
595,  75  N.  H.  345. 

16.  A  desire  to  promote  his  own  welfare 
will  not  justify  an  employer's  interfering 
with  his  employee's  obtaining  employment 
elsewhere,  if  his  act  constitutes  an  unrea- 
sonable interference  with  the  employee's 
right  to  an  open  market.  Huskie  v.  Grif- 
fin, 27:  966,  74  Atl.  595,  75  N.  H.  345. 

17.  An  employer  who  fraudulently  repre- 
sents that  an  employee  dishonorably  left 
his  employment,  for  the  purpose  of  prevent- 
ing his  securing  work  with  a  new  employer, 
may  be  held  liable  for  the  damages  caused 
by  his  failure  to  obtain  the  new  situation 
because  of  such  representation.  Huskie  v. 
Griffin,  27:  966,  74  Atl.  595,  75  N.  H.  345. 

(Annotated) 

Injnry  to  business. 

Right  of  third  person  to  complain  of  rule 
of  college  which  injures  his  business, 
see  Colleges,  2, 

Conspiracy  to  injure  business,  see  Con- 
spiracy, III. 


444 


CASE,  II. 


Punitive  damages  for  interference  with 
business,  see  Damages,  35. 

Measure  of  damages,  see  Damages,  508. 

Evidence  as  to  damages,  see  Evidence,  1729. 

Sufficiency  of  complaint  in  action  for  in- 
terference with  business,  see  Pleading, 
189,  408. 

See  also  infra,  28-30;  Monopoly  and  Com- 
binations,  15. 

18.  Malicious  injury  to  the  busines  of 
another  will  give  a  right  of  action  to  the 
injured  party.  Southern  R.  Co.  v.  Cham- 
bers, 7:  926,  55  S.  E.  37,  126  Ga.  404. 

19.  An  action  lies  against  one  who  wrong- 
fully enters  another's  place  of  business,  and 
forbids  the  sale  of  the  goods  there  exposed, 
threatening  purchasers  with  prosecution, 
the  result  of  which  is  to  drive  away  the 
customers  and  stop  the  business.  Sparks  v. 
McCrary,  22:  1224,  47  So.  332,  156  Ala.  382. 

(Annotated) 

20.  One  merchant  cannot  legally  remove 
or  interfere  with  cards  furnished  by  his 
rival  to  consumers,  and  displayed  by  them 
on  their  premises  as  invitations  or  notices 
to  their  owner  to  call  to  furnish  needed  sup- 
plies. Dunshee  v.  Standard  Oil  Co.  36:  263, 
132  N.  W.  371,  152  Iowa,  618. 

.21.  A  wholesaler  of  oil  who,  when  a  cus- 
tomer in  a  particular  city  begins  to  pur- 
chase a  portion  of  his  stock  from  a  rival, 
enters  the  retail  business  solely  for  the  busi- 
ness of  driving  him  out  of  trade,  is  liable 
in  damages  for  the  loss  thereby  inflicted 
upon  him.  Dunshee  v.  Standard  Oil  Co. 
36:  263,  132  N.  W.  371,  152  Iowa,  618. 
Injury  to  property. 
Right  of  action  by  person  in  possession  for 

injury  to  property,  see  Parties,  18,  21, 

22. 
See  also  supra,  4. 

22.  Case  will  lie  to  recover  damages  for 
injuries  to  buildings  by  blasting  in  a  neigh- 
boring tunnel,  although  no  negligence  is 
proved.  Hickey  v.  McCabe,  27:  425,  75  Atl. 
404,  30  R.  I.  346. 

23.  Case,  and  not  trespass,  is  the  proper 
form  of  action  to  recover  for  injuries  to 
land  from  seepage  from  an  irrigation  ditch, 
in  the  absence  of  anything  to  show  inten- 
tion in  causing  the  injury.  Fleming  v. 
Lockwood,  14:  628,  92  Pac.  962,  36  Mont.  384. 

II.  Inducing  'breach  of  contract, 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Conspiracy   to   induce   breach    of   contract, 

::ee  Conspiracy,  13,  14. 
Damages  for   inducing  breach  of  contract, 

see  Damages,  68. 
Injunction     against     attempt     to     induce 

breach    of    contract,    see    Injunction, 

122,   137-140,   144-146. 
Pleading  as  to,  see  Pleading,  402,  403. 

24.  Procuring  a  breach  of  contract  is  an 
actionable  wrong  unless  there  be  justifica- 
tion for  interfering  with  the  legal  right. 
South  Wales  Miners'  Federation  v.  Glamor- 
gan Coal  Co.  1  B.  R.  C.  1,  [1905]  A.  C.  239. 
Digest  1-52  L.R.A.(N.S.) 


Also  Reported  in  74  L.  J.  K.  B.  N.  S.  525, 
53  Week.  Rep.  593,  92  L.  T.  N.  S.  710,  21 
Times  L.  R.  441. 

25.  The  act  of  one  who  wantonly  and 
maliciously,  whether  for  his  own  benefit  or 
not,  induces  a  person  to  violate  his  contract 
with  a  third  person  to  the  injury  of  the 
latter,  is  actionable.  Thacker  Coal  &  Coke 
Co.  v.  Burke,  5:  1091,  53  S.  E.  161,  59  W. 
Va.  253. 

25a.  To  render  one  liable  for  preventing 
the  performance  of  a  contract  he  must  have 
had  knowledge  of  it.  McGurk  v.  Cronen- 
wett,  19:  561,  85  N.  E.  576,  199  Mass.  457. 

25b.  A  manufacture  is  liable  to  a  con- 
sumer for  injuries  caused  by  compelling  a 
jobber  to  break  his  contract  to  furnish  sup- 
plies to  the  consumer  by  threatening  to 
withdraw  from  the  jobber  the  right  to  han- 
dle his  product,  on  the  right  to  do  which 
his  business  success  depends,  for  the  pur- 
pose of  securing  to  the  manufacturer  the 
direct  trade  of  the  consumer.  Knicker- 
bocker Ice  Co.  V.  Gardiner  Dairy  Co.  16: 
746,  69  Atl.  405,  107  Md.  556.      (Annotated) 

26.  One  sued  for  inducing  the  breach  of 
an  agency  contract  cannot  rely  on  the  de- 
fense that  plaintiff  does  not  come  into 
court  with  clean  hands  because  he  secured 
his  contract  by  false  representations,  if  no 
fraud  is  found  in  the  case,  the  other  con- 
tracting party  did  not  attempt  to  rescind 
because  of  the  fraud,  and  defendant  did 
not  confine  himself  to  telling  the  other  con- 
tracting party  the  truth  regarding  plain- 
tiff's statements,  but  entered  into  argument 
to  induce  the  breach  of  contract.  Beekman 
V.  Marsters,  11:  201,  80  N.  E.  817,  195  Mass. 
205. 

27.  The  right  of  competition  does  not 
justify  one  in  inducing  a  hotel  company 
to  break  its  contract  to  make  another  its 
exclusive  agent,  and  divide  the  agency  with 
the  one  offering  the  inducement.  Beekman 
V.  Marsters,  11:  201,  80  N.  E.  817,  195  Mass. 
205. 

28.  One  may  be  liable  for  wrongful  inter- 
ference with  contracts  between  a  merchant 
and  his  customers,  in  the  absence  of  a  con- 
spiracy to  effect  that  result.  Dunshee  v. 
Standard  Oil  Co.  36:  263,  132  N.  W.  371,  162 
Iowa,  618, 

29.  The  display  of  a  card  furnished  to 
consumers  by  a  merchant,  to  be  displayed 
when  supplies  are  needed,  is  not  an  order, 
in  the  absence  of  any  arrangement  or  agree- 
ment that  it  shall  be  such,  so  as  to  render 
another  who,  upon  seeing  the  card,  solicits 
the  trade,  liable  for  interfering  with  his 
rival's  contracts.  Dunshee  v.  Standard  Oil 
Co.  36:  263,  132  N.  W.  371,  152  Iowa,  618. 

30.  The  sending,  by  a  labor  union,  of  no- 
tices to  patrons  of  a  concern  against  which 
a  strike  has  been  declared,  notifying  them 
that  the  concern  is  unfair,  and  that  union 
men  will  not  handle  material  furnished  by 
it,  which  causes  the  patrons  to  cancel  or- 
ders for  materials  to  be  furnished  by  the 
concern,  is  not  without  justification,  so  aa 
to  bring  the  union  within  the  rule  that  one 
who,  without  justification,  induces  another 
to  break  his  contract  with  a  third  person, 


CASE  MADE. 


445 


is  responsible  in  damages  to  the  latter.  J. 
F.  Parkinson  Co.  v.  Building  Trades  Coun- 
cil, 21:550,  98  Pac.   1027,  154  Cal.  581. 

31.  A  physician  cliosen  by  employees  from 
whose  wages  sums  are  deducted  to  estab- 
lish a  hospital  service  to  furnish  the  profes- 
sional services  to  them  cannot  maintain  an 
action  against  the  employer  for  damages  for 
his  refusal  to  pay  the  dues  to  him  on  the 
theory  that  the  employer  maliciously  causes 
the  employees  to  violate  their  contract  with 
the  physician.  Banks  v.  Eastern  R.  &  Lum- 
ber Co.  11:  485,  90  Pac.  1048,  46  Wash.  610. 

32.  No  action  lies  to  recover  for  the  loss 
of  his  bargain  by  one  who  had  contracted  to 
purchase  property,  against  another  who  in- 
duced the  vendor  to  break  his  contract  and 
transfer  title  to  him,  unless  the  vendor 
acted  against  his  will  or  contrary  to  his 
purpose  by  coercion  or  deception.  Swain  v. 
Johnson,  28:  615,  65  S.  E.  619,  151  N.  C.  93. 

(Annotated) 

Inducing  servant  to  leave  employ- 
ment. 

Injunction  against  inducing  breach  of  con- 
tract, see  Injunction,  138-140,  142, 
144-147. 

Enticing  servant,  see  Masteb  and  Servant, 
124,    125;    Parties,    192. 

Pleading  as  to,  see  Pleading,  403. 

See  also  Labor  Organizations,  10. 

33.  An  action  may  be  maintained  against 
one  who  maliciously  entices  a  servant 
in  actual  service  of  a  master,  to  desert 
and  quit  his  service.  Thacker  Coal  &  Coke 
Co.  V.  Burke,  5:  1091,  53  S.  E.  161,  59  W.  Va. 
253.  (Annotated) 
Inducing  discharge  of  servant. 
Conspiracy  to  induce  discharge  of  em- 
ployees, see  Conspiracy,  39,  42-46. 

Measure    of    damages,    see    Damages,    309, 

310. 
Evidence  in  action  on  case,  see  Evidence, 

1366,   1703. 
Master's    liability   for   wrongful    discharge, 

see  Master  and  Servant,  123. 
Pleading    in    action    for    interference    with 

employment,  see  Pleading,  404-407. 
Question   for   jury   as   to   liability   for,    see 

Trial,    633. 

34.  A  contract  between  an  employer  and 
a  labor  union  obligating  the  employer  to  re- 
tain in  his  employ  no  one  objectionable  to 
the  union  for  any  cause  does  not  of  itself 
justify  interference  with  a  workman's  em- 
ployment by  the  one  who  secured  the  con- 
tract on  behalf  of  the  union.  Berry  v.  Dono- 
van, 5:  899,  74  N.  E.  603,  188  Mass.  353. 

35.  One  who  causes  another  to  be  dis- 
charged from  his  employment  by  false  and 
malicious  statements  as  to  the  manner  in 
which  he  performs  his  duties  is  liable  to 
him  in  damages,  although  the  employment 
was  for  an  indeterminate  period.  Cham- 
bers V.  Probst,  36:  1207,  140  S.  W.  572,  145 
Ky.  381. 

36.  A  wrongful  act  affecting,  and  intend- 
ed to  affect,  a  man's  rights  to  secure  and 
retain  emplojonent,  embodies  the  ingredient 
of  malice  in  law,  and  is  actionable.  Brennan 
v.  United  Hatters  of  N.  A.  (N.  J.  Err.  & 
App.)  9:  254,  65  Atl.  165,  73  N.  J.  L.  729. 
Digest  1-52  L.R.A.(N.S.) 


37.  The  right  of  a  member  of  a  trade 
union  to  recover  damages  from  the  union  for 
pfeventing  him  from  retaining  employment 
or  securing  new  employment  is  not  defeated 
by  the  fact  that  his  purpose  in  joining  the 
union  was  to  participate  in  the  monopoly  of 
the  labor  market  which  it  created.  Brennan 
V.  United  Hatters  of  N.  A.  (N.  J.  Err.  & 
App.)   9:  254,  65  Atl.  165,  73  N.  J.  L.  729. 

38.  The  trial  of  a  member  of  a  trade 
union  by  a  tribunal  established  within  the 
association,  and  his  conviction  of  the  charge 
of  violating  its  rules,  do  not  justify  the  as- 
sociation or  its  officers  in  procuring  his  dis- 
charge from  employment,  where  he  was  put 
on  trial  without  the  submission  of  written 
charges  and  without  due  notice,  as  required 
by  the  rules  of  the  union.  Brennan  v.  Unit- 
ed Hatters  of  N.  A.  (N.  J.  Err.  &  App.)  9: 
254,  65  Atl.  165,  73  N.  J.  L.  729. 

39.  The  act  of  a  trade  union  which,  in 
consequence  of  an  unwarranted  conviction  of 
one  of  its  members  before  a  tribunal  estab- 
lished within  the  association,  withdraws  his 
membership  card,  the  natural,  proximate 
and  intended  result  of  which  is  to  procure 
his  discharge  from  employment  and  prevent 
him  from  gaining  a  livelihood  for  himself 
and  family,  constitutes  an  actionable  injury 
where  actual  damage  has  accrued  therefrom, 
although  such  member  had  no  binding  con- 
tract of  employment.  Brennan  v.  United 
Hatters  of  N.  A.  (N.  J.  Err.  &  App.)  9:254, 
65  Atl.   165,  73  N.  J.  L.  729. 

40.  The  right  of  a  laborer  to  recover 
damages  for  wrongful  interference  with  his 
contract  of  employment  is  not  affected  by 
the  fact  that  it  was  terminable  at  will,  in- 
stead of  ending  at  a  stated  time.  Berry  v. 
Donovan,  5:  899,  74  N.  E.  603,  188  Mass.  353. 

41.  An  ofHcer  of  a  corporation  may  be 
liable  for  maliciously  inducing  it  to  break 
its  contract  with  its  employee  and  discharge 
him  from  his  employment.  McGurk  v. 
Cronenwett,  19:  561,  85  N.  E.  576,  199  Mass. 
457.  •  ( Annotated ) 

42.  One  who,  having  notified  an  em- 
ployer of  an  assignment  of  an  employee's 
wages  under  a  mistake  in  identity,  persists 
in  claiming  the  assignment  after  being 
notified  of  the  mistake,  which  results  in  the 
discharge  of  the  employee,  is  liable  for  the 
wages  lost  by  him  because  of  such  discharge. 
Lopes  v.  Connolly,  38:  986,  97  N.  E.  80,  210 
Mass.  487.  (Annotated) 

43.  One  who  for  revenge  secures  the  dis- 
charge of  a  person  leaving  his  employment 
by  another  person  he  had  contracted  to 
serve,  by  threatening  to  withdraw  patron- 
age from  the  latter  unless  he  discharged 
the  employee,  is  liable  in  damages  to  the 
employee  for  the  loss  suffered  by  him.  Jones 
V.  Leslie,  48:  893,  112  Pac.  81,  61  Wash.  107. 

( Annotated ) 


CASE   MADE. 

On  appeal,  see  Appeal  and  Error,  IV.  n. 


446 


CASES  CERTIFIED— CATTLE. 


CASES  CERTIFIED. 

1.  An  agreed  statement  of  facts  may*be 
certified  to  the  supreme  court  for  its  opin- 
ion as  to  whether  or  not  a  viaduct  in  a 
street  is  a  local  improvement  for  which 
abutting  property  may  be  assessed,  under 
a  statute  permitting  parties  to  any  pro- 
ceeding to  make  an  agreed  case  containing 
the  points  of  law  at  issue  between  them  to 
be  certified  to  the  appellate  court,  and  pro- 
viding that  the  cause  shall  proceed  in  the 
eame  manner  as  if  a  fu41  record  had  been 
certified.  Waukegan  v.  De  Wolf,  45:  9:8, 
101  N.  E.  532,  258  111.  374, 

2.  The  supreme  court  must  hear  and  de- 
termine a  cause  certified  to  it  because  a 
judge  of  the  intermediate  appellate  court, 
which  decides  it,  deems  the  decisien  to  be 
in  conflict  with  those  of  another  court  of 
similar  jurisdiction,  under  a  constitutional 
provision  authorizing  such  certification  if 
any  one  of  the  judges  sitting  shall  deem 
the  decision  contrary  to  a  previous  decision 
of  one  of  the  other  appellate  courts,  al- 
though it  is  not  in  fact  so.  Epstein  v. 
Pennsylvania  R.  Co.  48:  394,  156  S.  W.  699, 
250  Mo.  1. 

3.  A  question  is  of  such  doubt  that  it 
ought  to  be  certified  to  the  appellate  court 
within  the  meaning  of  a  statute  permitting 
such  certification  only  when,  after  care- 
ful consideration  of  a  question  necessarily 
to  be  decided,  aided  by  arguments  and  re- 
searches of  council,  the  judge  is  unable 
to  reach  a  satisfactory  conclusion.  Tilling- 
hast  V.  Johnson,  41:  764,  82  Atl.  788,  34  R. 
I.   136. 

4.  The  supreme  court  may,  under  a 
statute  authorizing  a  trial  judge  to  certify 
important  or  doubtful  questions  of  law  to 
it,  upon  proper  certification,  pass  upon  the 
question  as  to  whether  or  not  the  evidence 
in  a  certain  case  tends  to  show  or  prove 
facts  constituting  an  offense  charged  in 
the  indictment.  State  v.  Dumas,  41:  439, 
136  N.  W.  311,  118  Minn.  77. 

5.  That  questions  reserved  for  the  opin- 
ion of  the  supreme  court  involve  incident- 
ally the  construction  of  statutes  passed  to 
enforce  the  constitutional  right  of  persons 
accused  of  crime  to  a  speedy  trial  does  not 
prevent  their  being  within  the  statutory 
rule  permitting  only  constitutional  ques- 
tions to  be  reserved,  where  they  involve  pri- 
marily the  alleged  violation  of  the  constitu- 
tional right  of  accused  to  a  speedy  trial. 
State  v.  Keefe,  22:  896,  98  Pac.  122,  17  Wyo. 
227. 

6.  A  question  arising  upon  a  plea  of 
guilty  is  a  question  arising  "on  the  trial," 
within  a  statute  (11  &  12  Vict.  chap.  78) 
which  provides  that  when  any  person  shall 
have  been  convicted  the  trial  Judge  may, 
in  his  discretion,  "reserve  any  question  of 
law  which  shall  have  arisen  on  the  trial;" 
and  the  Court  for  the  Consideration  of 
Crown  Cases  Reserved  has  power  to  enter- 
tain a  case  reserving  that  question,  and  to 
make  such  order  as  justice  may  require. 
King  V.  Plummer,  4  B.  R.  C.  917,  [1902]  K. 
B.  339.  Also  Reported  in  71  L.  J.  K.  B. 
Digest  1-52  I..R.A.(N.S.> 


N.  S.  805,  66  J.  P.  647,  86  L.  T.  N.  S.  836, 
18  Times  L.  R.  659,  51  Week.  Rep.  137,  20 
Cox  C.  C.  243. 


CASH  BAIL. 

Recovery  of,  see  Assumpsit,  24,  25. 


CASH   DIVIDENDS. 

Relative  rights  of  life  tenant  and  remain- 
dermen as  to,  see  Lu'e  Tenants,  10- 
15. 


CASHIER. 


Authority  of,  see  Banks,  22-39. 

Bond  for  fidelity  of,  see  Bo^'DS,  41,  42. 

Prosecution  for  embezzlement,  see  Em- 
bezzlement, 5. 

Imputing  knowledge  of,  to  bank,  see  No- 
tice,  17,   18,   37,   41,  42,   59. 


♦  >» 

CASHIER'S  CHECK. 

See  Checks,  1;  Payment,  11-13. 

■ ♦  •» 

CASH  SURRENDER  VALUE. 

Of  insurance  policy,  see  Bankruptcy,   32- 
38;   Insurance,   174,  451. 


^  •  » 

CASUALTY  INSURANCE. 

See  Insurance. 

4  * » 


CATHOLIC   CHURCH. 

Review  by  courts  of  decisions  of  tribunal 
of,  see  Courts,  193. 


CATHOLICS. 


Excluding    from    jury,     see    Appeal    and 
Error,  1495;  New  Trial,  37. 


CATTLE. 

Transportation  of,  see  Cabriess,  III.  f. 
In  general,  see  Aitimals. 


CATTLE  GUARDS— CEMETERIES. 


447 


CATIXE   GUARDS. 

Absence  of,  at  crossing  as  proximate  cause 
of  injury  to  person  who  goes  on  track 
to  drive  back  cattle,  see  Proximate 
Cause,    97. 

Railroad's  duty  as  to,  see  Railroads,  187, 
188. 


CATTLE  PASS. 


Right    to    maintain    under     highway,     see 
Highways,  21-23. 


CATTUE  PENS. 


Injury  to  employee  because  of  obstruction 
of  railroad  track  by,  see  Master  and 
Servant,    395,    396,    702. 


CATTLE  YARDS. 


Forbidding  maintenance  of,  in  residence 
district,  see  Municipal  Corporations, 
165. 


CAUCUS. 

See  Elections,  IV. 


CAUSA   MORTIS. 

Gift,  see  Gift,  II, 

♦-•-♦ 

CAUSE. 

Hypothetical  questions  as  to  cause  of  ex- 
plosion, see  Evidence,  1064. 

Circumstantial  evidence  as  to  cause  of  fire, 
see  Evidence,  1841, 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  II.  g. 

Opinion  evidence  as  to,  see  Evidence,  VII. 
c. 

Of  loss,  death  or  injury,  see  Insurance, 
VI.  b. 

Proximate  cause,  see  Proximate  Cause. 

Question  for  jury  as  to,  see  Trial,  II.  c, 
2. 


CAVEAT. 

To  probate  of  will,  see  Wills,  87,  105. 

Effect  of  purchaser's  inspection  of  property 
on  right  to  recover  damages  for 
broker's  fraudulent  reprcsentationa  as 
to  value,   see  Brokers,   11, 

Digest  1-52  L.R.A.(N.S.) 


Custom  of  relieving  customer  from  burden 
of  doctrine  of,  see  Custom,  3. 

Application  of  rule  to  purchase  at  judicial 
sale,  see  Judicial  Sale,  10. 

Application  of  rule  to  tax  sale,  see  Proxi- 
mate   Cause,    23;    Taxes,    238. 

In  general,  see  Sale. 


CELLARW^AY. 

Maintenance  of,  in  alley,  see  Alleys,  3. 


CELLUXOID. 


Duty  to  warn  servant  of  danger  of  ex- 
plosion of,  see  Master  and  Servant, 
230. 


CEMENT  FACTORY. 

Injunction    to    restrain    operation    of,    see 
Appeal  and  Error,  110. 


CEMETERIES. 


Bequest  for  purpose  of  keeping  burial 
grounds  in  order,  see  Charities,  26, 
27. 

Due  process  in  regulations  as  to,  see  Con- 
stitutional Law,  517. 

Forbidding  further  interments  in,  see  Con- 
stitutional Law,  517,  668,  772; 
Estoppel,   16. 

Consideration  for  contract  requiring  protec- 
tion of  lateral  support  of  cemetery  in 
which  kindred  are  buried,  see  Con- 
tracts, 64. 

Provision  in  deed  that  property  shall  not 
be  used  for,  see  Covenants  and  Con- 
ditions, 6. 

Dedication  of  land  for  purpose  of,  see  Dedi- 
cation,  10,   42. 

Purchase  of  land  with  notice  of  public 
right  of  burial  thereon,  see  Deeds,  55. 

Right  to  compensation  for  location  of,  near 
property,  see  Eminent  Domain,  258. 

Injunction  against  burial  of  animal  in,  see 
Injunction,  41. 

Injunction  against  removal  of  corpse,  see 
Injunction,  114. 

Enjoining  heir  from  interfering  with,  see 
Injunction,   177. 

As  nuisance,  see  Nuisance,  39,  138;  Plead- 
ing, 172;  Trial,  643. 

Effect  of  reservation  for  burial  ground  on 
right  to  specific  performance  of  con- 
tract to  purchase  property,  see  Spe- 
cific Performance,  94. 

Indefiniteness  of  trust  by  conveyance  of 
land  for  burial  place,  see  Trusts,  52. 

1.  Ground  conveyed  to  an  incorporated 
town,  for  the  use  of  the  town  as  a  grave- 


448 


CENSUS— CERTIFICATES. 


yard,  and  dedicated  by  the  town  to  the 
public  use  as  such,  and  so  used  by  the  pub- 
lic, ia  held  in  trust  by  the  town  for  the 
public  for  burial  of  the  dead.  Ritter  v. 
Couch,  42:  1216,  76  S.  E.  428,  71  W.  Va.  221. 

2.  Where  ground  conveyed  to  an  in- 
corporated town,  to  be  held  by  it  for  a 
burial  place  for  the  public,  is  accepted  by 
the  town,  and  devoted  to  public  use  for 
burial,  and  so  used  by  the  public,  and  many 
dead  bodies  interred  therein,  the  town  can- 
not, without  express  legislative  authority, 
sell  and  convey  the  land  and  thus  disable 
itself  from  executing  the  trust  of  maintain- 
ing such  burial  place.  Ritter  v.  Couch,  42: 
1216,  76  S.  E.  428,  71  W.  Va.  221. 

(Annotated) 

3.  The  property  rights  of  a  lot  owner  in 
<t  cemetery  set  apart  for  the  burial  of  the 
white  race,  and  for  burial  purposes  only,  are 
violated  by  the  burial  of  a  dog  in  an  adjoin- 
ing lot,  and  the  fact  that  a  physical  nuisance 
is  not  thereby  created  is  immaterial.  Hertle 
V.  Riddell,  15:  796,  106  S.  W.  282,  127  Ky. 
623. 

Bights  as  to  burial  lots. 

Loss  of  right  to  use  property  for  burial 
purposes  by  adverse  possession,  see 
Adverse  Possession,  74. 

Prescriptive  right  to  maintain  burial  lot 
in  private  grounds,  see  Easements,  32. 

Interference  with  bodies  buried  in,  see 
Corpse,  10-17. 

Ejectment  for  burial  lot,  see  Corpse,  11,  14. 

Nature  of  interest  created  by  grant  to  fa- 
ther and  son  of  burial  lot,  see  Coten- 
ancy, 3. 

4.  Land  devoted  to  burial  purposes 
passes  into  the  hands  of  assignees  charged 
with  a  trust  for  that  purpose,  although 
no  express  reservation  is  made,  and  de- 
scendants of  the  one  who  established  the 
trust  may  exercise  the  right  of  burial  there 
when  necessity  arises,  and  of  protecting  the 
graves  and  beautifying  the  grounds.  Hines 
V.  State,  42:  1138,  149  S.  W.  1058,  126  Tenn. 
1. 

5.  A  cemetery  company  controlled  by 
white  persons  cannot,  by  purchasing  land 
surrounding  a  lot  owned  by  a  colored  per- 
son, prevent  his  using  his  property  for  bur- 
ial purposes,  or  compel  him  to  sell  it. 
Richmond  Cemetery  Co.  v.  Walker,  7:  155, 
97  S.  W.  34,  29  Ky.  L.  Rep.  1252. 

( Annotated ) 
Desecration  of  graves  or  burial  lot. 
Injunction    to    prevent    desecration    of,   see 
Injunction,  113,  114. 

6.  The  statutes  providing  for  punish- 
ment of  those  desecrating  burial  grounds 
apply  to  ground  set  apart  for  private  bur- 
ial and  maintained  as  such.  Hines  v. 
State,  42:  1138,  149  S.  W.  1058,  126  Tenn.  1. 

7.  The  conveyance  without  restriction 
or  establishment  as  a  private  burying 
ground,  as  provided  by  statute,  of  a  parcel 
of  land  on  which  burials  have  taken  place, 
destroys  the  right  of  the  relatives  of  the 
deceased  to  protect  the  graves  from  dese- 
cration. Wooldridge  v.  Smith,  40:  752,  147 
S.  W.  1019,  243  Mo.  190. 

Digest  1-52  L.R.A.(N.S.) 


CENSUS. 

Census  taker  as  necessary  party  to  suit 
to  set  aside  or  correct  alleged  fraud- 
ulent enumeration  made  by  him,  see 
Costs   and  Fees,  3. 

Census  returns  as  evidence,  see  Evidence, 
701. 

Right  of  private  citizen  to  maintain  action 
for  redress  of  public  wrong  in  padding 
census  enumeration,  see  Parties,  107. 


CERTAINTY. 


Of  charitable  bequest,  see  Charities,  I.  d. 
Of      judgment      suspending     sentence,     see 

Criminal  Law,  270. 
See  also  Definiteness. 


CERTIFICATE  OF  DEPOSIT. 

See  Banks,  IV.  a. 


CERTIFICATES. 


Of  acknowledgment,  see  Acknowledgment. 

Of  judge  to  record  on  appeal,  see  Appeal 
AND  Error,  189. 

Of  deposit,  see  Banks,  IV.  a,  4. 

Of  approval  of  fire  escape,  see  Buildings, 
30-32,  35. 

Of  freedom  from  venereal  disease,  as  con- 
dition of  right  to  marry,  see  Constitu- 
tional Law,  190;  Marriage,  8. 

Of  performance  of  contract,  see  Contracts, 
IV.  d. 

Of  stock,  see  Corporations,  V. 

Of  nomination,  see  Elections,  35. 

Of  election,  see  Elections,  57;  Mandamus, 
33,  82. 

Of  birth,  see  Equity,  82,  83;  Injunction, 
103. 

Of  cause  of  death,  see  Evidence,  702. 

Of  insurance,  see  Insurance. 

Of  receivers,  see  Receivers,  III, 

Of  trust,  see  Trusts,  VI. 

On  appeal,  see  Appeal  and  Error,  IV.  1. 

For  sale  of  liquOr,  see  Intoxicating  Li- 
quors, II. 

To  establish  right  to  registration  as  voter, 
see  Elections,  16. 

Teachers'   certificates,    see   Schools,   28-30. 

Tax  certificate,  see  Evidence,  578,  579; 
Taxes,  217,  222. 

Effect  of  absence  of  certificate  that  printed 
case  contains  all  the  evidence,  see  Ap- 
peal and  Error,  450. 

Liability  of  architect  for  negligence  in  cer- 
tifying completion  of  work,  see  Archi- 
tects, 3. 

Assignment  of  nontransferable  time  certifi- 
cate, see  Assignment,  11. 

Admissibility  of  physician's  certificate  of 
cause  of  death,  see  Evidence,  702. 

Admissibility  of  mutual  benefit  certificate 
in  evidence,  see  Evidence,  868. 


CERTIFICATION— CERTIORARI,  I.  a. 


449 


Negligence  of  city  officers  in  issuing  dupli- 
cate paving  tax  certificates,  see  Evi- 
dence, 2481. 

Injunction  against  use  in  evidence  of  fraud- 
ulent certificate  of  birth,  see  Injunc- 
tion, 174. 

Sufficiency  of  certificate  as  to  record  of 
mortgage  server'  with  notice  of  intent 
to  redeem,  see  Mortgage,  168. 

Proximate  cause  of  loss  to  bank  accepting 
stolen  paving  tax  certificates,  see 
Pboximate  Cause,  156. 


I.  JuHsdiction;  iise  of  torit  generally, 
a.  In  general. 


CERTIFICATION. 


Of  questions  to  appellate  court,  see  Cases 

Certified. 
Of  checks,  see  Checks,  III. 


CERTIFIED   CHECK. 

See  Checks,  III. 

#*  » 


CERTIFIED  COPY. 

As    evidence,    see   Evidence,    721-723,    729, 

761,  768,  2266,  2267. 
Mandamus  to  compel  delivery  of,  by  public 

officer,  see  Mandamus,  7. 


CERTIFIED  QUESTIONS. 

See  Cases  Certified. 

♦ « » 


CERTIORARI. 

7.  Jurisdiction;  use  of  writ  generally, 
1-12. 
a.  In   general,    1—9. 
h.  Existence     of     other     remedy, 
10-12. 
II.  Procedure;  hearing;  determination, 
13-19. 

Appeal  in  habeas  corpus  proceeding  as  in 
effect  a  certiorari,  see  Appeal  and 
Error,  494. 

Effect  of  act  authorizing  review  of  facts 
on  certiorari  to  permit  review^  of  find- 
ings on  appeal,  see  Appeal  and  Error, 
965. 

Power  to  have  judgment  reviewed  on  cer- 
tiorari as  affecting  right  to  relief  in 
equity,   see   Equity,   56;    Injunction, 

289.  "  ; 

See  also  Appeal  and  Ebbob,  179.     '-" 
Digest  1-52  I..R.A.(N.S.) 


(See   also    same   heading 
1-10.) 


in   Digest   L.R.A. 


Original  jurisdiction  of  appellate  court,  see 
Courts,  II.  a,  2. 

1.  An  indictment  may  be  found  against 
one  accused  of  murder,  notwithstanding  the 
pendency  of  certiorari  proceedings  to  re- 
view the  action  of  the  committing  magis- 
trate. People  V.  Friedman,  45:  55,  98  N.  E. 
471,  205  N.  Y.  161. 

2.  Facts  not  appearing  in  the  return  to 
a  writ  of  certiorari,  nor  in  any  other  man- 
ner which  would  enable  the  court  to  take 
notice  of  them,  are  not  to  be  considered  in 
determining  the  propriety  of  the  writ. 
United  States  Standard  Voting  Mach.  Co. 
v.  Hobson,  7:  512,  109  N.  W.  458,  132  Iowa, 
38. 

3.  The  filing  of  answers  in  an  injunc- 
tion suit  in  which  a  restraining  order  has 
been  issued  to  prevent  the  carrying  out  of 
a  contract  does  not  defeat  the  right  of  de- 
fendants to  apply  for  a  writ  of  certiorari 
to  annul  the  injunction.  United  States 
Standard  Voting  Mach.  Co.  v.  Hobson,  7;  512, 
109  N.  W.  458,  132  Iowa,  38. 

4.  Only  judicial  action  is  reviewable  by 
the  writ  of  certiorari,  under  W.  Va.  Code 
1899,  chap.  110,  §§  2,  3,  which  does  not  alter 
the  scope  of  the  writ  as  it  was  by  the  com- 
mon law,  in  respect  to  the  nature  of  the 
proceedings  reviewable  by  it.  Wheeling  & 
E.  G.  R.  Co.  v.  Triadelpiiia,  4:  321,  52  S.  E. 
499,  58  W.  Va.  487. 

5.  Certiorari  is  the  proper  remedy  to 
review  the  decision  of  the  governor  in  re- 
moving a  county  official  from  office.  State 
ex  rel.  Kinsella  v.  Eberhart,  39:  788,  133  N. 
W.  857,  116  Minn.  313. 

6.  Certiorari  is  a  proper  remedy  to  re- 
view the  proceedings  of  a  court-martial, 
for  the  purpose  of  determining  whether 
it  exceeded  its  jurisdiction.  State  ex  rel. 
Poole  v.  Peake,  40:  354,  135  N.  W.  197,  22 
N.  D.  457. 

7.  A  judgment  entered  by  a  justice  of 
the  peace  in  excess  of  his  jurisdiction  may 
be  quashed  on  certiorari.    Gregg  v.  Hatcher, 
27:  138,  125  S.  W.  1007,  97  Ark.  54. 
Questions  of  fact. 

8.  The  determination  of  trustees  of  a 
police  pension  fund  that  an  injury  was  con- 
tracted by  a  policeman  in  the  line  of  his 
duty  is  one  of  fact,  which  cannot  be  re- 
viewed by  the  courts  on  certiorari.  State 
ex  rel.  McManus  v.  Board  of  Trustees,  20: 
1175,  119  N.  W.  806,  138  Wis.  133. 

9.  Certiorari  will  not  lie  to  review  ques- 
tions of  fact  to  be  determined  by  evidence 
outside  the  record,  in  a  proceeding  by  mu- 
nicipal officers  to  acquire  property  by  right 
of  eminent  domain.  Hayford  v.  Bangor, 
11:  940,  66  Atl.  731,  102  Me.  340. 

29 


450 


CERTIORARI,  I.  b— CHAIRMAN. 


b.  Existence  of  other  remedy. 

(See   also   same   heading    in   Digest   L.R.A. 
1-10.) 

Appeal   or   error. 

10.  The  right  to  appeal  from  an  order 
restraining  performance  of  a  contract  for 
voting  machines  does  not  defeat  the  right 
to  apply  for  a  writ  of  certiorari  to  annul  it 
on  the  ground  that  it  was  in  excess  of  juris- 
diction and  therefore  void,  where  the  elec- 
tion at  which  the  machines  were  to  be  used 
would  pass  before  the  appeal  could  be  heard. 
United  States  Standard  Voting  Mach.  Co. 
V.  Hobson,  7:  512,  109  N.  W.  458,  132  Iowa, 
38. 

11.  If  the  court  attempts  to  enforce  an 
order  to  allow  an  inspection  of  papers,  the 
one  against  whom  it  is  entered  may  appeal 
from  the  order  imposing  the  punishment; 
and  therefore  a  writ  of  certiorari  will  not 
lie  to  review  an  order  of  inspection,  where 
the  statute  authorizes  such  writ  only  where 
no  appeal  is  allowed.  State  ex  rel.  Seattle 
General  Contract  Co.  v.  Superior  Court, 
28:  516,  106  Pac.  150,  56  Wash.  649. 

12.  An  order  for  inspection  of  books  and 
papers  in  possession  of  defendant  may  be 
reviewed  on  appeal  from  the  final  judgment 
which  may  be  entered  in  the  case,  and  there- 
fore cannot  be  taken  up  under  a  writ  of  re- 
view, where  the  statute  authorizes  such  writ 
only  where  no  appeal  is  provided.  State  ex 
rel.  Seattle  General  Contract  Co.  v.  Su- 
perior Court,  28:  516,  106  Pac.  150,  56  Wash. 
649.  (A«notated) 

//.  Procedure;  hearing;  determination. 

(See   also   same   heading  ,m  Digest  L.R.A. 

Parties. 

13.  A  consent  decree  in  an  action  under 
the  statute  by  a  citizen  to  enjoin  the  main- 
tenance of  a  liquor  nuisance,  which  permits 
acts  contrary  to  the  statute  and  prejudicial 
to  the  community,  of  which  he  fails  or  re- 
fuses to  seek  correction  by  appeal,  may  be 
reviewed  under  a  writ  of  certiorari  at  the 
suit  of  any  citizen,  upon  a  proper  showing 
of  his  qualifications.  Hemmer  v.  Bonson, 
19:  610,  117  N.  W.  257,  139  Iowa,  210. 

( Annotated ) 

14.  That  the  real  motive  of  an  interested 
person  in  applying  for  a  writ  of  certiorari 
to  review  a  decree  in  a  suit  to  enjoin  the 
maintenance  of  a  liquor  nuisance,  which 
permits  acts  contrary  to  the  statute  and 
prejudicial  to  the  community,  is  to  compel 
the  purchase  of  his  property  at  an  exorbi- 
tant price,  cannot  be  considered  by  the  court 
as  a  reason  for  denying  the  relief.  Hemmer 
V.  Bonson,  ig:  610,  117  N.  W.  257,  139  Iowa, 
210. 

15.  The  owner  of  property  adjoining 
that  on  which  is  maintained  a  liquor  nui- 
sance has  sufficient  interest  to  be  entitled  to 
seek  a  writ  of  certiorari  to  review  a  con- 
sent decree  in  a  suit  by  a  citizen  to  enjoin 
the  maintenance  of  the  nuisance,  which  per- 
Digest  1-52  L.R.A.(N.S.)  ^ 


mits  acts  contrary  to  the  statute  and  prej- 
udicial    to     the     community.      Hemmer     v. 
Bonson,  19:  610,   117   N.   W.  257,   139   Iowa, 
210. 
Nature  and  extent  of  review^. 

16.  The  supreme  court  in  certiorari  pro- 
ceedings can  consider  only  questions  of 
law;  and  those  must  be  raised  in  the  affi- 
davit for  the  writ.  Booker  v.  Grand  lipids 
Medical  College,  24:  447,  120  N.  W.  589,  15ft 
Mich.  95. 

17.  Neither  the  oral  statements  of  a 
judge  in  entering  a  decree  enjoining  the 
maintenance  of  a  liquor  nuisance,  which,  by 
its  terms,  permits  acts  contrary  to  the 
statute  and  prejudicial  to  the  community, 
nor  the  interpretation  which  the  parties 
have  put  upon  the  decree,  can  be  considered 
upon  a  petition  for  a  writ  of  certiorari  to- 
correct  the  decree.  Hemmer  v.  Bonson,  19: 
610,  117  N.  W.  257,  139  Iowa,  210. 

18.  The  questions  open  upon  certiorari 
to  review  the  action  of  the  board  of  medical 
examiners  in  revoking  a  physician's  license 
are  whether  the  board  had  jurisdiction, 
exceeded  its  jurisdiction,  or  greatly  abused 
its  discretion,  or  whether  the  statute  under 
which  it  acted  is  constitutional.  Chenoweth 
V.  State  Bd.  of  Medical  Examiners,  51:  958, 
141  Pac.  132,  —  Colo.  — . 

19.  The  question  of  the  existence  of  the 
corporation  seeking  to  exercise  the  right 
of  eminent  domain  cannot  be  inquired  into 
upon  certiorari  to  review  the  condemnation 
proceedings  if  either  the  facts  or  the  in- 
ferences to  be  drawn  from  them  are  in  dis- 
pute. Sisters  of  Charity  v.  Morris  R.  Go. 
50:  236,  86  Atl.  954,  84  N.  J.  L.  310. 


CESS  FOOL. 


Fraud  in  knowingly  selling  house  located 
over,  see  Fbaud  and  Deceit,  21. 

Liability  of  landlord  for  injury  resulting 
from,  see  Landlord  and  Tenant,  133. 


•*.^^'^'»^^CESTUI  QUE  TRUST. 
See  Trusts. 


CHAIR   CAR   COMPANIES. 

Presumption  as  to  discrimination  in  taxa- 
tion of,   see  Evidence,   66. 


CHAIRMAN. 


Election  of  chairman  of  stockholders'  meet- 
ing,  see  Corporations,  371.  .  > 

(,ii,.r'i.}.i\.ii..^i.    i-O— 


CHALLENGE— CHAMPERTY  AND  MAINTENANCE,  II. 


451' 


CHAluLENGE. 

Of  voters,  see  Elections,  20,  21. 
To  panel  of  jurors,  see  Jury,  58,  59. 


CHAMBER   OF   COMMERCE. 

1.  A  corporation  which  has  not  com- 
plied with  the  rules  of  a  chamber  of  com- 
merce which  prescribe  the  manner  in  whicli 
a  corporation  may  acquire  membership 
therein,  and  has  not  signed  and  filed  an 
agreement  to  observe  and  be  obligated  by  the 
regulations  governing  the  members  of  the 
chamber,  as  required  by  such  rules,  cannot 
acquire  a  lien  upon  the  membership  of  a 
member  under  the  rules  of  the  chamber. 
McCarthy  Bros.  Co.  v.  Chamber  of  Com- 
merce, 21 :  589,  117  N.  W.  923,  105  Minn.  497. 

2.  The  lien  which  is  provided  for  imder 
the  rules  of  the  Minneapolis  chamber  of 
commerce  exists  only  for  the  benefit  of  the 
members  of  the  chamber,  and  is  security  for 
the  payment  of  claims  of  a  certain  nature 
and  character  arising  out  of  transactions 
between  members.  McCarthy  Bros.  Co.  v. 
Chamber  of  Commerce,  21:  589,  117  N.  W. 
923,  105  Minn.  497. 

3.  A  corporation  can  acquire  member- 
ship in  the  Minneapolis  chamber  of  com- 
merce only  by  complying  with  the  rules 
thereof;  and  the  fact  that  a  corporation 
which  succeeded  to  the  business  of  a  firm 
which  had  complied  with  such  rules  con- 
tinued to  transact  business  with  the  officers 
of  the  chamber  without  itself  complying 
with  the  rules,  and  obligating  itself  to  ob- 
serve the  rules,  usages,  and  customs  of  the 
chamber,  does  not  estop  the  chamber  from 
asserting  that  the  corporation  is  not  a  mem- 
ber, and,  as  such,  entitled  to  a  lien  upon 
the  membership  of  a  member  with  whom  it 
has  had  business  transactions.  McCarthy 
Bros.  Co.  V.  Chamber  of  Commerce,  21:  589, 
117  N.  W.  923,  105  Minn.  497. 

4.  The  board  of  directors  of  a  chamber 
of  commerce  has  no  power  to  determine  the 
validity  of  a  claim  to  lien  upon  a  member- 
ship therein  without  proper  notice  of  hear- 
ing to  the  proposed  transferee,  and  ac- 
tion taken  without  notice  is  of  no  effect. 
McCarthy  Bros.  Co.  v.  Chamber  of  Com- 
merce, 21:589,  117  N.  W.  923,  105  Minn. 
497. 


CHAMPERTY  AND  MAINTENANCE. 

I.  In  general,  1—5. 
II.  Agreements  between  attorney  and 
client,   6—8. 
III.  Purchase    of   realty   in    third   per- 
son's possession,  9. 

Public   policy    as   to,    see    Contkacts,    466. 
Digest  1-52  I..R.A.(N.S.) 


J.  In  general. 

(See   also    same   heading   in  Digest   L.R.A. 
1-70.) 

1.  It  is  not  maintenance  to  agree  to 
indemnify  a  customer  against  any  claim  for 
breach  of  contract  with  a  trade  rival,  in 
the  defense  of  the  indemnitor's  own  com- 
mercial interest.  British  Cash  &  Parcel 
Conveyors,  Ltd.  v.  Lamson  Store  Service  Co. 
Ltd.  i  B.  R.  C.  159,  [1908]  1  K.  B.  1006. 
Also  Reported  in  77  L.  J.  K.  B.  N.  S.  649, 
98  L.  T.  N.  S.  875.  (Annotated) 

2.  An  agreement  by  one  having  a  claim 
against  a  decedent's  estate,  to  do  every- 
thing proper  and  legitimate  to  aid  the 
heirs  in  recovering  the  estate,  in  consid- 
eration that  they  pay  his  claim,  is  not  void 
as  champerty  or  maintenance.  Smith  v. 
Hartsell,  22:  203,  63  S.  E.  172,  150  N.  C.  71. 

3.  A  contract  by  one  not  acting  as  at- 
torney, for  a  specific  consideration,  to  de- 
feat the  probate  of  a  will,  is  void  as  a  spe- 
cies of  champerty  or  maintenance.  Cochrao 
V.  Zachery,  16:  235,  115  N.  W.  486,  137  Iowa. 
585.  .  (Annotated) 

4.  A  corporation  which  has  undertaken 
to  furnish  steam  to  the  public  for  heating 
purposes  cannot  defeat  an  action  to  enjoin 
it  from  discontinuing  service  to  a  consumer, 
on  the  ground  that  the  expenses  of  the  suit 
would  be  paid  by  a  rival  corporation  for 
the  purpose  of  inducing  the  consumer  to 
start  litigation  in  order  to  harass  and  an- 
noy the  defendant.  Seaton  Mountain  E.  L. 
H.  &  P.  Co.  V.  Idaho  Springs  Invest.  Co.  33: 
1078,  111  Pac.  834,  49  Colo.  122. 

5.  A  nonsuit  cannot  be  granted  in  an 
action  brought  to  recover  possession  of  a 
contract  interest  in  mining  claims,  because 
the  owner  of  the  interest  had  made  a  cham- 
pertous  assignment  of  a  portion  of  such  in- 
terest to  one  who  joined  in  the  action,  since 
defendants  cannot  take  advantage  of  the 
champerty,  and  even  though  the  partial  as- 
signment might  be  void,  it  will  not  defeat 
all  right  of  recovery  against  defendants. 
Prosky  v.  Clark,  35:  512,  109  Pac.  793,  32 
Nev.  441.  (Annotated) 

II.    Agreements    between   attorney   atid 
client. 

(See   also   same   heading   in  Digest  L.R.A. 
1-70.) 

Remedy  on   champertous  contract  with   at- 
torney,  see  Contracts,  611. 

6.  An  agreement  of  a  client  to  transfer 
certain  property  and  pay  his  attorneys  a 
lump  sum  to  get  him  a  divorce  and  settle 
his  wife's  claim  for  alimony  in  an  action 
against  him  for  the  annulment  of  the  mar- 
riage is  champertous  as  speculating  on  the 
terms  of  settlement,  and  is  against  public 
policy  as  facilitating  divorce.  Donaldson  v. 
Eaton,  14:  1168,  114  N.  W.  19,  136  Iowa,  650. 
For  contingent  fee. 

Effect  of  partial  invalidity  of  contract,  see 

Contracts,  407. 
See  also  Attorneys,  60;   Contbacts,  611.. 


452 


CHAMPERTY  AND  MAINTENANCE;    III.— CHARITIES.  ^ 


7.  A  contract  for  an  attorney's  fee  con- 
tingent upon  the  amount  to  be  recovered  by 
judgment  or  settlement  is  ordinarily  valid; 
but  when  such  contract  contains  a  stipula- 
tion that  the  client  shall  not  compromise 
or  settle  his  claim  without  the  consent  of  the 
attorney,  it  is  champertous  and  voidable  at 
the  option  of  the  client.  Davy  v.  Fidelity 
&  C.  Ins.  Co.  17:  443,  85  N.  E.  504,  78  Ohio 
St.  256. 

For  payment  of  costs  and  expenses  by 
attorney. 

8.  A  contract  by  an  attorney  to  pay 
witness  fees  out  of  a  contingent  fee  to  be 
allowed  him  for  successful  services  in  a  suit 
is  champertous.  ijarngrover  v.  Pettigrew, 
2:  260,  104  N.  W.  904,  128  Iowa,  533. 

///.   Purchase   of  realty   in    third   per- 
son's possession. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

9.  A  conveyance  of  land  by  the  right- 
ful owner,  who  has  not  been  in  possession 
of  it,  or  in  receipt  of  the  rents  and  profits 
by  himself  or  his  grantors,  for  the  space 
of  a  year  prior  thereto,  is  void  as  against 
one  holding  adversely,  where  the  statute 
makes  such  conveyance  a  misdemeanor. 
Powers  V.  Van  Dyke,  36:  96,  111  Pac.  939, 
27  Okla.  27. 


♦  »  » 


CHANCERY. 


See  Eqihtt. 


■♦♦»■ 


CHANGE. 

Of  destination,  eflfect  on  liability  of  carrier, 
see   Carriers,   971. 

Of  domicil,  see  Domicil,  4-9. 

Of  grade  of  railroad,  condemnation  of  prop- 
erty from  which  to  take  materials  for, 
see  Eminent  Domain,  86. 

Of  position,  estoppel  by,  see  Estoppel,  59- 
61. 

Of  testimony,  on  second  trial,  see  Evidence, 
2052;  New  Trial,  63. 

Of  possession,  see  Fraudulent  Convey- 
ances, 41-46;  Pledge  and  Collateral 
Security,  2-10;  Sale,  I.  b. 

Of  grade,  see  Highways,  III. 

Of  beneficiary,  see  Insurance,  IV.  b. 

Of  use  of  insured  premises,  see  Insurance, 
246-253. 

Of   judges,   see   Judges,   IV. 

Of  theory  in  libel  case,  see  Libel  and  Slan- 
der,  157. 

Of  venue,  see  Venue,  II. 

Making  change  on  street  car,  see  Carriers, 
414,  648-652. 


CHANGE  OF  POSSESSION. 

As  essential  to  validity  of  conveyance  as 
against  creditors,  see  Fraudulent 
Conveyances,  41-46. 

Digest  1-52  L.R.A.(N.S.) 


Of  pledged  property,  see  Pledge  and  Col- 
lateral Security,  2-10. 
Of  personalty  sold,  see  Sale,  I.  b. 


CHARACTER. 


Presumption    as    to    character    of    accused, 

see  Evidence,  121,  122. 
Opinion  evidence  as  to,  see  Evidence,  VII. 

e. 
Relevancy  of  evidence  as  to,  generally,  poe 

Evidence,  XI.  c. 
Libelous   charges   affecting,  see   Libex   and 

Slander,  II.  b. 
Instructions    as    to    presumption    of    good 

character,  see  Trial,  007. 
Instructions  as  to  cflFcct  of  evidence  of  good 

character,  see  Trial,  1079. 
Competency  of  witness  to  testify  to  general 

reputation   of   person,    see   Witnesses, 

7,  8. 
Admissibility  of  evidence  as  to,  to  impeach 

witness,  see  Witnesses,  151- J  64. 


CHARGES. 


For  freight,  see  Carriers,  III.  e. 

Upon  donee  or  land  devised,  see  Wills,  III. 

k. 
As  to  rates,  see  Rates. 


CHARITABLE  INSTITUTIONS. 


See  Charities. 


■♦*» 


CHARITIES. 

/.  Nature  and  validity,   1—57. 

a.  In  general,  1—4. 

b.  What  are  charities,   5—27. 

c.  Conditions;   existence  and   ca- 

pacity of  trustees  or  bene- 
ficiaries; acceptance  by  trus- 
tee,    2S-4:1. 

d.  Definiteness ;       discretion       of 

trustee,    42—57. 
II.  Enforcement;    control;    forfeiture; 
liability,    57a— 93. 

a.  In  general,  57a— 60. 

b.  Cy  pr^s  doctrine,   61—64, 

e.  Liability  for  damages,   65—93, 

Compelling  placing  of  fire  escapes  on  elee- 
mosynary institutions,  see  Buildings, 
29. 

Free  transportation  to  persons  engaged  in 
charitable  work,  see  Carriers,  1064. 

Consideration  for  subscription  to,  see  Con- 
tracts,  100-102. 

Oral  promise  of  gift  to,  as  within  statute 
of  frauds,  see  Contracts,  208,  237. 

Duty  of  persons  dealing  with  trustees  of 
charitable  corporation  to  take  notice  of 
their  powers,  see  Corporations,  69. 


CHARITIES,  I.  a,  b. 


453 


Charitable  home  as  a  business  within  mean-  f 
ing  of  restrictive  covenant,   see  Cove- 
nants AND  Conditions,  73. 

Beversion  to  grantor  of  property  upon  dis- 
solution of  charitable  corporation,  see 
Deeds,  92. 

Kight  of  grantor  of  property  to,  upon  con- 
dition, to  damages  for  property  taken 
for  public  use,  see  Eminent  Domain, 
251. 

Estoppel  to  maintain  action  to  recover  pos- 
session of  property  sold  under  execu- 
tion, see  Estoppex,  125. 

Parol  evidence  to  show  that  hospital  is  a 
charitable  organization,  see  Evidence, 
1042. 

Evidence  of  admission  of  promise  to  donate 
money  to,  see  Evidence,  1231. 

Evidence  as  to  subscription  for,  see  Evi- 
dence,  1932,    1933. 

Appointment  of  amicus  curia;  to  except  to 
executor's  account  where  residuary 
legatee  is  trustee  of  charitable  trust, 
see  Executors  and  Administrators, 
129. 

Obtaining  money  as  a  charity  by  false 
representation,  see  False  Pretenses, 
7. 

Laches  to  bar  proceeding  to  contest  validity 
of  charitable  trust,  see  Limitation  of 
Actions,    39. 

Running  of  limitations  against  trustee  of 
charitable  trust,  see  Limitation  of 
AcrrioNs,  97,  101. 

Mechanics'  lien  on  property  of,  see  Me- 
chanics' Liens,  58,  59. 

Sale  of  property  of,  under  execution,  see 
Mechanics'  Liens,  58. 

Rule  of  perpetuity  as  to,  see  Perpetuities, 
IV. 

Use  of  public  money  for  purpose  of,  see 
Public  Moneys,   13. 

Right  of  children  of  nonresident  patents 
in  charitable  institution  to  school 
privileges,  see  Schools,  7. 

As  to  state  university,  see  State  Univer- 
sities. 

Works  of,  on  Sunday,  see  Sunday,  III.  b. 

Exemption  of,  from  taxation,  see  Taxes,  I. 
f.  3. 

Special  telephone  rates  to,  see  Telephones, 
25. 

Title  of  trustee  of  charitable  trust,  see 
Trusts,  82. 

Furnishing  water  to,  free  of  charge,  see 
Waters,  424. 

Disqualification  of  member  of  committee 
for  charity  appointed  by  Avill  as  attest- 
ing witness,  see  Wills,   36. 

EflFect  of  specifying  use  of  real  estate  in 
devise  to  religious  societies,  see  Wills, 
270. 

Gift  over  to  in  case  of  violation  of  condition 
by  first  taker  under  will,  see  Wills, 
297. 

Equitable  conversion  in  case  of  gift  to  char- 
ity, see  Wills,  374. 

Limitation  on  amount  of  charitable  bequest, 
see  Wills,  III.  d. 

Digest  1-52  I<.R.A.(N.S.) 


I.  Nature  and  validity. 

a.  In  general. 

(See   also    same   heading   in   Digest   LJt.A. 
1-10.) 

Effect   of    provision    in    will    that    trustees 
need  not  report  to   court,   see  Wills, 


1.  In  the  absence  of  statutory  restric- 
tions, a  person  has  an  absolute  right,  as 
against  his  heirs,  to  will  his  property  to 
charity.  Hubbard  v.  Worcester  Art  Mu- 
seum, g:  689,  80  N.  E.  490,   194  Mass.  280. 

2.  A  court  will  not  refuse  to  sustain  a 
charitable  trust  because  the  beneficiaries  are 
not  confined  to  residents  of  the  state.  Re 
Robinson,  37:  1023,  96  N.  E.  925,  203  N.  Y. 
380. 

3.  A  charitable  trust  will  be  liberally 
construed,  that  it  may  be  rendered  eff'ectual. 
Re  Sacrison,  26:  724,  123  N.  W.  518,  19  N. 
D.  160. 

4.  Every  reasonable  intendment  should 
be  indulged  in  favor  of  a  will  creating  a 
trust  for  charity,  where  the  rights  of  the 
heirs  having  lawful  claims  upon  the  bounty 
of  the  testatrix  are  not  involved,  and  where 
the  surviving  husband  has  been  liberally 
provided  for  in  accordance  with  the  terms 
of  an  antenuptial  contract.  Re  Appleby's 
Estate,  10:  590,  111  N.  W.  305,  100  Minn. 
408.  .J  I   -•. 

h.  What  are  charities. 

(See  also   same   heading   vn   Digest   L.R.A, 
1-10.) 

5.  Money  is  devoted  to  purposes  of  pub- 
lic charity  which  is  transferred  to  trustees 
of  a  permanent  fund  derived  from  gifts  and 
b«quests,  and  is  under  the  exclusive  con- 
trol of  such  trustees,  to  be  used  for  paying 
death  benefits  and  giving  charitable  assist- 
ance to  members  of  a  mutual  benefit  society, 
membership  in  which  all  connected  with  a 
certain  business  are  entitled  to  obtain,  al- 
though the  benefit  is  limited  to  such  mem- 
bers. Minns  v.  Billings,  5:  686,  66  N.  E. 
593,  183  Mass.  126.  (Annotated) 

6.  A  "reserve  fund"  directed  to  be  ac- 
cumulated out  of  the  income  of  property  be- 
queathed to  a  trustee  for  a  charitable  pur- 
pose until  it  should  reach  a  certain  amount, 
any  surplus  in  excess  of  which  is  to  be  used 
only  "in  case  of  dire  need,  such  as  loss  of 
rent,  depravation  of  property,  payment  of 
duties,  or  any  other  special  circumstances," 
is  devoted  to  a  charitable  purpose  equally 
with  the  corpus  of  the  bequest.  Re  Swaiji, 
2  B.  R.  C.  872,  [1905]  1  Ch.  669.  Also  re- 
ported in  74  L.  J.  Ch.  N.  S.  354,  92  L.  T. 
N.  S.  715. 

Bequest    for    masses. 

7.  A  bequest  for  masses  for  testatcnr 
and  certain  specified  relatives  being,  under 
the  doctrine  of  the  Catholic  Church,  for  the 
benefit  of  all  mankind,  is  a  valid  public 
charity,  and   not  subject  to  statutory   pro- 


454 


CHARITIES,  I.  b. 


visions  governing  the  creation  of  private 
charities.  Re  Kavanaugh,  28:  470,  126  N. 
W.  672,  143  Wis.  90. 

8.  A  bequest  of  a  fund  to  be  used  for 
masses  for  the  repose  of  all  poor  souls  is 
a  valid  charitable  trust  under  a  Constitu- 
tion forbidding  interference  with  the  rights 
of  conscience.  Ackerman  v.  Fichter,  46: 
221,  101  N.  E.  493,  179  Ind.  392. 

For  hospital. 

9.  A  hospital  supported  naainly  by  char- 
ity does  not  lose  its  cliaracter  as  a  chari- 
table institution  by  the  fact  that  it  makes 
a  charge  for  the  use  of  rooms  to  those  who 
are  able  to  pay  for  them.  Jensen  v.  Maine 
Eye  &  Ear  Infirmary,  33:  141,  78  Atl.  898, 
107  Me.  408. 

10.  The  validity  of  a  bequest  for  the  es- 
tablishment and  maintenance  of  a  hospital 
is  not  affected  by  the  fact  that  the  fund  is 
charged  with  the  cost  of  maintaining  the 
burial  lot  of  the  donor,  and  with  a  small 
monthly  payment  to  his  relatives  for  life. 
Buchanan  v.  Kennard,  37:  993,  136  S.  W. 
415,  234  Mo.  117. 

11.  A  devise  to  trustees  and  their  succes- 
sors forever  of  property  to  establish  and 
maintain  a  hospital  for  sick  and  injured 
persons  without  distinction  of  creed,  under 
the  auspices  of  a  particular  religious  de- 
nomination or  its  successors,  creates  a  valid 
public  charity  under  the  statute  of  Eliza- 
beth, although  the  benefit  is  not  limited  to 
poor  persons.  Buchanan  v.  Kennard,  37: 
993,  136  S.  W.  415,  234  Mo.  117. 

Home  for  "c^orking  girls. 

12.  A  corporation  organized  without  cap- 
ital or  stockholders,  to  provide,  from  con- 
tributed funds,  a  home  for  working  girls, 
where  they  can  obtain,  for  bare  cost,  shelter 
and  maintenance,  and  also,  free  of  expense, 
be  provided  with  large  opportunities  for 
mental  and  moral  improvement,  and,  if  sick, 
with  proper  medical  attendance,  is  a  pub- 
lic charity,  Thornton  v.  Franklin  Square 
House,  22:  486,  86  N.  E.  909,  200  Alass.  465. 
Parks. 

13.  A  devise  of  property  to  a  municipal 
corporation  in  trust  to  devote  the  income  to 
the  maintenance  and  improvement  of  its 
parks  is  a  valid  public  charitable  trust. 
Burr  v.  Boston,  34:  143,  95  N.  E.  208,  208 
Mass.  537. 

Prevention   of   cruelty   to   animals. 

14.  Gifts  to  aid  the  work  of  prevention 
of  cruelty  to  animals  are  for  a  public  char- 
ity. Minns  v.  Billings,  5:  686,  66  N.  E. 
593,  183  Mass.  126. 

Fire    insurance    patrol. 

15.  An  association  composed  of  insurance 
companies  doing  business  in  a  certain  city, 
having  power  to  provide  for  and  assist  in 
the  saving  of  life  and  property  at  fires, 
and  which  is  supported  by  assessments  lev- 
ied on  all  persons  or  companies  engaged  in 
the  insurance  business  in  such  city,  its  pur- 
pose being  to  minimize  the  losses  and  pro- 
mote the  pecuniary  interests  of  its  members, 
is  a  private,  and  not  a  public,  corporation, 
nor  is  it  a  public  charity,  notwithstanding 
the  statute  under  which  it  was  organized 
prohibits  it  from  charging  for  its  services, 
Digest  1-52  Ii.R.A.(N.S.) 


or  from  distinguishing  between  insured  and 
uninsured   property.      Coleman   v.   Fire   Ins. 
Patrol,  21:  810,  48  So.  130,  122  La.  626. 
Art    museum. 

16.  A  devise  to  an  art  museum  the  prop- 
erty of  which  is  held  in  trust  for  the  benefit 
of  all  the  people  of  a  city  is  for  a  general 
charitable  purpose,  which  may  be  carried 
out  cy  prcs  in  case  the  charter  of  the  dev- 
isee makes  it  incapable  of  taking  and  hold- 
ing the  property.  Hubbard  v.  Worcester 
Art  Museum,  9:  689,  80  N.  E.  490,  194  Mass. 
280. 

Library. 

17.  An  association  incorporated  by  gen- 
eral law  and  treated  by  the  legislature  as  a 
public  charity  for  tlie  maintenance  of  a  li- 
brary and  museum  is  a  public  charity,  al- 
though it  has  a  limited  membership,  where 
the  membership  is  represented  by  the 
shares  of  stock,  which  are  freely  transfer- 
able, and  the  state  officers  are  given  free 
access  to  its  privileges,  which  are  also  lib- 
erally extended  to  strangers.  Minns  v.  Bil- 
lings, 5:  686,  66  N.  E.  593,  183  Mass.  126. 

18.  A  charitable  triist  attaches  to  prop- 
erty secured  for  its  purposes  by  a  corpora- 
tion organized  to  maintain  a  library  for  the 
benefit  of  the  members  and  of  the  multitude 
of  people  who  visit  the  city,  where  anyone 
contributing  a  certain  amount  towards  the 
purposes  of  the  enterprise  may  become  a 
member,  and  the  funds  are  secured  by  mem- 
bership fees  and  charitable  contributions. 
Fordyce  v.  Woman's  Christian  Nat.  Library 
Asso.  7:  485,  96  S.  W.  155,  79  Ark.  550. 
Education. 

Medical    college    as    charitable    institution, 
see   Mandamus,   94. 

19.  A  corporation  organized  under  a  pri- 
.vate  charter  solely  for  educational  purposes, 
to  which  all  its  funds  must  be  applied,  is  a 
charitable  institution,  within  the  rule  ex- 
empting such  institutions  from  liability  for 

he  negligent  acts  of  their  servants ;  and  the 
fact  that  tuition  fees  are  charged  is  imma- 
terial. Parks  V.  Northwestern  University, 
2:  556,  75  N.  E.  991,  218  111.  381. 

(Annotated) 
20.  A  public  charitable  trust  is  created 
by  a  will  devising  property  to  trustees  with 
directions  to  erect  a  memorial  manual 
training  school  to  be  perpetually  main- 
tained, and  after  the  building  is  erected, 
to  turn  the  property  over  to  a  municipal 
corporation,  the  unexpended  balance  of  the 
fund  to  be  used  for  the  maintenance  of  the 
school,  in  connection  with  tuition  fees,  with 
no  provision  for  reverter  in  case  of  diver- 
sion of  the  property.  Maxcv  v.  Oshkosh, 
31:  787,  128  N.  W.  899,  1136,  "144  Wis.  238. 
21.  An  instrument  of  writing  purporting 
to  convey  lands  to  trustees  and  their  suc- 
cessors in  perpetual  trust  to  provide  a  home 
and  school  for  the  maintenance  and  educa- 
tion of  the  children  of  the  deceased  mem- 
bers of  a  secret  society  is  not  a  gift  for  pur- 
poses of  a  public  charity,  and  is  void  as 
against  the  rule  prohibiting  perpetuities  of 
title  in  estates.  Troutman  v.  De  Boissiere 
Odd  Fellows  Orplians'  Home  &  I.  S.  Asso. 
5:  692,  64  Pac.  33,  66  Kan.  1.       (Annotated) 


.a.>:>...... 


-.i — I   j*it»jiiCl 


CHARITIES,  I.  c. 


455 


22.  Providing    a    fund    for    the    specific 
education  of  the  poor  does  not  destroy  the 
charitable    nature    of    the    gift.     Re    Robin- 
son, 37:  1023,  9G  N.  E.  925,  203  N.  Y.  380. 
Care  of  vv^idoMirs  and   orphans. 

23.  That  the  benefits  of  a  home  for  the 
support  of  widows  and  orphans  are  con- 
fined to  those  of  members  of  a  particular 
secret  society  does  not  deprive  it  of  the 
character  of  a  purely  public  charity  within 
the  meaning  of  a  constitutional  tax  exemp- 
tion. Widows'  &  Orphans'  Home  v.  Com. 
16:  829,  103  S.  W.  354,  126  Ky.  386. 

(Annotated) 
Churcli. 

24.  The  maintenance  of  a  church  for  the 
teaching  and  preaching  of  religious  doc- 
trines is  a  public  charity.  People  ex  rel. 
Smith  V.  Braucher,  47:  1015,  101  N.  E.  944, 
258  111.  604. 

25.  A  trust  declared  in  a  conveyance  of 
property  for  public  worship  and  instruction 
for  the  benefit  of  an  indefinite  number  of 
persons  according  to  Presbyterian  faith  and 
polity,  with  a  further  provision  that,  if 
certain  conditions  are  not  complied  with, 
the  property  is  to  vest  in  a  specified 
presbytery,  for  Presbyterian  purposes,  upon 
the  same  conditions, — is  good  as  a  charity, 
in  both  its  primary  and  secondary  limi- 
tations. MacKenzie  v.  Trustees  of  Presby- 
tery of  Jersey  City  (N.  J.  Err.  &  App.)  3: 
227,  61  Atl.  1027,  67  N.  J.  Eq.  652. 

For  graves. 

26.  A  bequest  for  the  purpose  of  keeping 
burial  grounds  in  good  order  is  a  good  chari- 
table gift,  although  the  burial  ground  may 
be  connected  with  the  meeting  house  of,  or 
for  the  benefit  of  members  of,  a  particular 
religious  community.  Re  Manser,  1  B.  R.  C. 
923,  [1905]  1  Ch.  68.  Also  reported  in  74 
L.  J.  Ch.  N.  S.  95,  53  Week.  Rep.  261,  92 
L.  T.  N.  S.  79.  (Annotated) 

27.  The  validity  of  a  bequest  for  the  pur- 
pose of  keeping  burial  grounds  in  good  order 
as  a  charitable  gift  is  not  affected  by  the 
addition  of  the  words,  "in  particular  the 
grave  of  my  late  wife,"  as  such  words  do  not 
create  a  separate  trust,  but  only  an  ancil- 
larv  obligation.  Re  Manser,  1  B.  R.  C.  923, 
[1905]  1  Ch.  68.  Also  reported  in  74  L.  J. 
Ch,  N.  S.  95,  53  Week.  Rep.  261,  92  L.  T. 
N,  S.  79. 

c.  Conditions;  existence  and  capacity  of 
trustees  or  heneftciaries;  accept- 
ance by  trustee. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Agreement  of  trustees  of  charitable  corpo- 
ration that  property  may  be  subjected 
to  mechanics'  lien,  see  Corporations, 
70. 

28.  A  devise  of  real  estate  for  the  cele- 
bration of  masses,  being  for  a  public 
charity,  is  not  invalid,  although  title  is  not 
vested  in  anyone.  Re  Kavanaugh,  28:  470, 
126  N.  W.  672,  143  Wis.  90. 

Digest  1-52  Ii.R.A.(N.S.) 


29.  A  statute  requiring  a  devise  of  land 
to  be  made  directly  to  the  beneficiary,  and 
not  to  a  trustee,  is  not  applicable  to  public 
charities  or  in  cases  where  the  will  works 
conversion  of  the  property  into  personalty. 
Re  Kavanaugh,  28:  470,  126  N.  W.  672,  143 
Wis.  90. 

Conditions. 

Construction  of  provision  in  will  as  to  con- 
dition of  charitable  bequest,  see  Wills, 
145,  146. 

30.  The  expression  by  a  testator  in  a 
will  directing  that  his  residuary  estate  be 
devoted  to  the  establishment  of  a  children's 
home  in  a  foreign  country,  to  be  under  the 
charge  of  the  poor  oflficers  of  a  certain  ter- 
ritorial municipality  thereof,  of  a  desire 
that  his  executor  arrange  with  such  officers 
that  such  municipality  provide  half  the  cost 
of  the  establishment  and  maintenance  of 
such  home,  if  possible,  and  also  that  the 
services  of  such  authorities  in  the  manage- 
ment of  the  home  be  without  charge,  does 
not  make  compliance  with  such  desire  a  con- 
dition precedent  to  the  carrying  out  of  the 
trust,  but  is  a  mere  recommendation  of  the 
testator.  Re  Sacrison,  2Q:  724,  123  N.  W. 
^18,  19  N.  D.  160. 

31.  A  municipal  corporation  does  not 
forfeit  its  rights  under  a  will  bequeathing 
property  to  trustees  to  construct  a  memo- 
rial school  building,  and  directing  that 
when  a  certain  amount  has  been  raised  by 
the  city,  the  property  shall  be  turned  over 
to  the  city,  the  balance  of  the  funds  to  be 
mingled  with  the  funds  so  raised  perpetu- 
ally to  maintain  the  school,  by  the  fact 
that  it  devotes  the  fund  raised  by  it  to  the 
construction  of  the  building,  which  is  the 
only  lawful  use  it  can  make  thereof,  leav- 
ing the  fund  of  testator  to  be  appropriated 
to  its  maintenance.  Maxcy  v.  Oshkosh, 
31:  787,  128  N.  W.  899,  1136,  144  Wis.  238. 

32.  The  rule  that  official  action  influ- 
enced by  a  money  inducement  is  void  does 
not  apply  to  avoid  a  gift  to  a  municipal 
corporation  of  a  fund  to  establisli  and 
maintain  a  public  manual  training  school, 
on  condition  that  the  municipality  contrib- 
utes a  certain  amount  towards  the  enter- 
prise, and  undertakes  perpetually  to  main- 
tain the  school,  where  the  donor  could  reap 
no  material  benefit  from  its  establishment. 
Maxcy  v.  Oshkosh,  31 :  787,  128  N.  W.  899, 
1136,   144  Wis.  238. 

33.  Absence  of  positive  statutory  au- 
thority does  not  deprive  a  municipal  cor- 
poration having  power  to  maintain  a  sys- 
tem of  public  schools,  of  the  power  to 
construct  a  building  with  public  funds  and 
bind  itself  forever  to  maintain  it,  to  secure 
the  benefit  of  a  fund  devised  to  aid  in  the 
establishment  and  maintenance  of  such  a 
school.  Maxcv  v.  Oshkosh,  31:787,  128  N. 
W.  899,  1136,  I44  Wis.  238. 

City  or  town  as  trustee. 

34.  A  municipal  corporation  may  accept 
and  perpetually  administer  a  trust,  where 
the  donation  is  made  to  aid  some  public 
purpose,  charitable  in  its  nature,  which  it 
is  the  legal  duty  of  the  municipality  to 
support   and   provide   for.      Maxcy   v.    Osh- 


456 


CHARITIES,  I.  d. 


kosh,  31:  787,  128  N.  W.  899,  1136,  144  Wis. 

238. 

Unincorporated    association. 

35.  Trustees  of  a  charitable  trust  are 
not  rendered  incapable  of  taking  because 
they  do  not  represent  an  incorporated  body. 
Ackerman  v,  Fichter,  46:  221,  101  N.  E. 
493,  179  Ind.  392. 

30.  A  devise  to  trustees  of  a  fund  the 
income  of  which  shall  be  applied  to  pay- 
ment of  tuition  in  a  parisli  school  of  an 
unincorporated  religious  denomination  is 
valid.  Ackerman  v.  Fichter,  46:  221,  101 
N.  E.  493,  179  Ind.  392. 

36a.  A  bequest  to  a  church  will  not  fail 
because  the  church  is  not  incorporated,  if 
it  is  part  of  an  incorporated  college  which 
is,  by  law,  authorized  to  take  and  hold  prop- 
erty on  behalf  of  the  church.  Gardner  v. 
McNeal,  40:  553,  82  Atl.  988,  117  Md.  27. 

37.  A  bequest  in  trust  to  purchase  real 
estate  and  convey  it  to  a  voluntary  unin- 
corporated association  is  invalid,  as  such 
association  is  incompetent  to  take  or  hold 
property.  Mount  v.  Tuttle,  2:  428,  76  N.  E. 
873,  183  N.  Y.  358. 

Effect  of  subsegnent  incorporation. 

38.  The  courts  cannot  obviate  a  defect 
in  a  bequest  for  a  charitable  use,  consist- 
ing of  the  incapacity  of  the  beneficiary  be- 
cause an  unincorporated  association,  by  di- 
recting the  organization  of  a  corporation  to 
take  arnl  hold  the  gift.  Mount  v.  Tuttle, 
2:  428,  76  N.  E.  873,  183  N.  Y.  358. 

Who  may  question  capacity. 

39.  A  devise  to  a  corporation  of  property 
in  excess  of  its  charter  authority  to  take 
and  hold  is  not  so  far  void  that  its  validity 
can  be  questioned  by  testator's  heirs.  Hub- 
bard V.  Worcester  Art  Museum,  9:  689,  80 
N.  E.  490,  194  Mass.  280.  (Annotated) 
Acceptance   by   trustee. 

Lapsing  of   bequest  to   charity   rejected  by 

legatee,  see  Wills,  393. 
i-  40.  A  fund  bequeathed  to  a  private  in- 
stitution for  charitable  work  does  not  vest 
if  it  is  declined  by  the  trustee,  and  title  to 
it  will  not  be  affected  by  a  decree  adjudicat- 
ing the  right  to  its  assets.  Read  v.  Wil- 
lard  Hospital,  45:  574,  102  N.  E.  95,  215 
Mass.  132. 

41.  Where  a  charitable  bequest  is  made 
to  trustees  in  a  foreign  country,  it  will  not 
be  assumed  that,  should  such  trustees  refuse 
to  act,  a  foreign  court  will  permit  the  trust 
to  fail,  but  it  will  be  assumed  that  it  will 
appoint  a  trustee.  Re  Sacrison,  26:  724, 
123  N.  W.  518,  19  N.  D.  160. 

d.  Deflniteneas;    discretion    of    trustee. 

(See  also   same   heading   in   Digest   L.R.A. 
1-70.) 

42.  A  testator  may  vest  in  his  executor 
the  widest  possible  latitude  for  the  ex-ercise 
of  his  own  best  judgment  in  carrying  out  a 
charitable  bequest,  and  it  will  not  be  held, 
on  that  ground,  too  vague,  indefinite,  and 
uncertain  to  be  legally  enforceable.  Re  Sac- 
rison, 26:  724,  123  N.  W.  518,  19  N.  D.  160. 

43.  That  a  will  creating  a  charitable 
Digest  1-52  Ii.R.A.(N.S.) 


trust  fails  expressly  to  designate  a  trustee 
l)y  name  does  not  operate  to  defeat  the 
trust,  when  by  the  language  of  the  will, 
aided  by  extrinsic  evidence,  it  can  be  deter- 
mined whom  the  testator  intended.  Re  Sac- 
rison, 26:  724,  123  N.  W.  518,  19  N.  D.  160. 

44.  A  testator  who,  in  providing  that 
his  residuary  estate  be  devoted  to  the  estab- 
lishment of  a  children's  home  in  Sweden, 
directs  that  such  home,  when  established, 
shall  be  under  the  charge  of  the  officers  of 
a  certain  territorial  municipality  having  su- 
pervision of  the  poor  thereof,  "but  whose 
official  designation  is  not  known  to  me  at 
this  tijne,  the  selection  of  such  officers  being 
left  to  my  executor,  to  be  selected  and  des- 
ignated in  accordance  with  tlie  laws"  of 
Sweden, — thereby  designates  trustees  with 
sufficient  certainty  to  prevent  defeat  of  the 
trust  for  want  thereof,  as  such  provision 
sufficiently  expresses  the  intention  on  the 
part  of  the  testator  to  designate  as  trustees 
of  the  fund  such  officers  and  their  successors 
as  have,  under  the  laws  of  Sweden,  super- 
vision of  the  poor  in  such  territorial  mu- 
nicipality, which  designation  is  made  with 
sufficient  particularity  to  enable  the  exec- 
utor by  the  aid  of  extrinsic  facts  to  deter- 
mine with  absolute  certainty  the  trustees 
intended.  Re  Sacrison,  26:  724,  123  N.  W. 
518,  19  N.  D.  160. 

45.  A  bequest  for  masses  for  certain 
specified  purposes,  to  be  used  under  direc- 
tion of  specified  persons,  is  not  void  for  un- 
certainty. Re  Kavanaugh,  28:  470,  126  N. 
W.  672,  143  Wis.  90. 

Certainty  as  to  beneficiaries. 
Discretion  as  to  beneficiaries,  see  infra,  57. 

46.  A  charitable  trust  for  the  education 
of  poor  boys  is  not  rendered  invalid  by  the 
fact  that  the  class  is  not  restricted  in  any 
way  by  the  capacity,  color,  or  condition  of 
the  beneficiaries.  Tincher  v.  Arnold,  7:  471, 
147  Fed.  665,  77  C.  C.  A.  649. 

47.  That  no  provision  is  made  by  the 
donor  for  the  selection  of  the  beneficiaries 
of  a  trust  for  the  education  of  boys  not 
able  to  educate  themselves  does  not  invali- 
date the  trust,  since  equity  will  appoint  a 
trustee  for  that  purpose.  Tincher  v.  Arnold, 
7:  471,  147  Fed.  665,  77  C.  C.  A.  649. 

48.  The  existence  of  a  public  free-school 
system  does  not  necessarily  render  invalid  a 
trust  for  the  benefit  of  boys  unable  to  edu- 
cate themselves,  on  the  theory  that  the 
trust  has  no  field  for  operation,  since,  not- 
withstanding such  system,  there  may  be 
boys  who,  by  reason  of  poverty  or  other 
circumstances,  cannot  avail  themselves  of  it. 
Tincher  v.  Arnold,  7:  471,  147  Fed.  665,  77 
C.  C.  A.  649.  (Annotated) 

49.  A  will  whereby  a  testator  provides 
that  his  residuary  estate  be  devoted  to  the 
establishment  of  a  children's  home  in  his 
native  country  or  district,  known  as  Torrs- 
kog  socken,  Sweden,  for  the  care  of  desti- 
tute children  of  that  vicinity,  directs  that 
such  home  be  under  the  charge  of  the  poor 
officers  of  that  district,  and  declares  the  ob- 
ject of  the  trust  to  be  the  amelioration  of 
the  condition  of  the  poor  children  in  Torrs- 
kog  socken, — is  not  void  for  uncertainty  as 

(..B.V'O.A.HaI  S.C — £   TasjiiiE 


CHARITIES,  II.  a. 


457 


to  the  beneficiaries,  on  tfee  ground  that  it 
was  not  confined  to  the  destitute  children  in 
Torrskog  socken,  but  included  those  resid- 
ing therein  and  in  the  vicinity  thereof,  as 
the  term  "of  that  vicinity"  must  be  deemed 
to  relate  exclusively  to  the  territory  includ- 
ed within  such  socken.  Re  Sacrison,  26: 
724,  123  N.  W.  518,  19  N.  D.  160. 

50.  The  words,  "and  such  other  financial 
aid"  to  persons  in  need  as  may  seem  litting 
and  proper,  in  a  will  establishing  a  trust 
to  provide  shelter,  necessaries  of  life,  educa- 
tion, and  such  other  financial  aid,  etc.,  with 
preference  for  elderly  and  disabled  Christian 
persons  of  good  moral  character,  members  of 
Evangelical  churches,  will  be  construed  as 
requiring  aid  of  the  same  general  character 
as  the  purposes  specified,  so  as  to  come 
within  the  statute  providing  that  no  gift 
for  religious,  educational,  charitable,  or 
beneficent  purposes  shall  be  invalid  by  rea- 
son of  the  indefiniteness  and  uncertainty  of 
the  beneficiaries.  Re,  Robinson,  37:  1023, 
96  N.  E.  925,  203  N.  Y.  380. 

51.  Provision  for  the  selection  of  the  ob- 
jects of  a  public  charity  is  sufficiently  defi- 
nite where  the  charity  is  the  construction 
and  rhaintenance  of  a  hospital  for  sick  and 
injured  persons,  without  distinction  of  creed, 
under  the  auspices  of  a  particular  religious 
denomination,  and  "under  such  rules  and 
regulations  as  the  trustees  and  their  suc- 
cessors" shall,  from  time  to  time,  establish 
and  maintain.  Buchanan  v.  Kennard,  37: 
993,  136  S.  W.  415,  234  Mo.  117. 

52.  A  trust  by  conveyance  of  land  to  an 
incorporated  town  for  public  use  as  buri- 
al place  for  the  dead  is  not  void  because  of 
indefiniteness  as  to  the  beneficiary.  Ritter 
V.  Couch,  42:  1216,  76  S.  E.  428,  71  W.  Va. 
221. 

53.  A  conveyance  of  land  to  trustees  for 
the  use  and  benefit  of  a  religious  sect  or 
denomination,  as  a  place  of  worship,  is  not 
void  for  uncertainty  where  there  is  but  one 
local  congregation  of  that  sect,  altliough 
the  body  as  a  whole  has  many  scattered 
congregations,  where  a  statute  specifically 
authorizes  and  validates  a  conveyance  to 
religious  bodies  for  use  as  a  place  of  wor- 
ship, and  provides  that  such  conveyance 
shall  be  construed  to  give  the  local  con- 
gregation of  such  religious  sect  control 
thereof.  Deepwater  R.  Co.  v.  Honaker, 
27:  388,  66  S.  E.  104,  66  W.  Va.  136. 
Discretion  as  to  purposes  of  gift. 
See  also   supra,   42. 

54.  A  testator  may  empower  his  execu- 
tor to  distribute  the  residue  of  his  estate 
among  such  religious,  charitable,  and  benev- 
olent objects  as  the  executor  may  select.  Re 
Dulles,  12:  1 177,  67  Atl.  49,  218  Pa.   162. 

(Annotated) 

55.  A  bequest  to  executors  to  distribute 
the  property  among  benevolent  objects  is 
not  too  indefinite  to  be  permitted  to  stand. 
Re  Dulles,  12:  1177,  67  Atl.  49,  218  Pa.  162. 

56.  No  trust  for  a  charitable  use  which 
equity  can  enforce  is  created  by  a  will 
which  gives  property  to  testator's  wife  on 
condition  that  the  balance  after  certain 
dispositions  "will  be  given  to  advance  the 
Digest  1-52  L.R.A.(N.S.) 


I  cause  of  religiOii  and  promote  the  cause  of 
'  charity  in  such  manner  as  my     .     .     .     wife 


i 
ty  in  such  manner  as  my  .  .  .  wife 
may  think  will  be  most  conducive  to  the 
carrying  out  of  my  wishes."  Hadley  v. 
Forsee,   14:  49,   101   S.   W.   59,  203   Mo.  418. 

( Ansotated) 
Discretion  as  to  beneficiaries. 

57.  A  testator  who,  in  bequeathing  his 
residuary  estate  to  establish  a  children's 
home,  designates  the  beneficiaries  as  the 
■'destitute  children,"  and  in  another  place 
the  "poor  children"  of  Torrskog  socken, 
Sweden,  which  home  is  to  be  in  charge  of 
the  poor  officers  of  that  socken,  impliedly 
vests  in  such  officers  the  incidental  power 
to  select  the  individuals  within  the  general 
class  designated,  who  are  to  partake  of  his 
bounty.  Re  Sacrison,  26:  724,  123  N.  W. 
518,  19  N.  D.  160. 

II.    Enforcement;    control;    forfeiture; 
Uahility. 


a.  In  general. 


'fit  j'f 


(See   also   same   heading   in  Digest   L.R.A, 
1-70.) 

Parties  in  suit  to    prevent    dissipation    of 
funds  of  public  charity,  see  State,  16. 
Power  of  trustee  to  sell,  see  Trusts,  96. 

57a.  Courts  may  enforce  a  trust  devoting 
a  definite  sum  to  be  expended  annually  for 
masses  for  the  repose  of  all  poor  souls. 
Ackerman  v.  Fichter,  46:  221,  101  N.  E.  493, 
179  Ind.  392. 

58.  Since  a  trust  for  masses  for  the  re- 
pose of  all  poor  souls  is  for  the  benefit  of 
both  living  and  dead,  living  persons  have 
an  interest  in  its  enforcement  both  for 
themselves  and  as  kindred  of  the  dead,  so 
that  the  trust  will  not  fail  for  lack  of  ben- 
eficiaries competent  to  enforce  or  invoke  its 
enforcement.  Ackerman  v.  Fichter,  46:  221, 
101  N.  E.  493,  179  Ind.  392.         (Annotated) 

59.  The  courts  will  not,  in  the  absence 
of  legal  abuse,  interfere  with  the  exercise, 
by  an  executor,  of  discretion  conferred  upon 
him  by  the  will  to  distribute  the  residue 
of  the  estate  among  religious,  charitable, 
and  benevolent  purposes.  De  Dulles,  12: 
1 177,  67  Atl.  49,  218  Pa.  162. 

60.  The  children  and  heirs  at  law  of 
one  who  has  conveyed  property  in  trust  for 
charitable  uses  are  not  entitled  to  main- 
tain a  suit  against  a  presbytery  charged 
with  the  duties  of  trusteeship,  to  restrain 
it  from  making  use  of  the  property  in  al- 
leged violation  of  the  terms  of  tlie  trust, 
where  the  complainants  have  no  stixnding 
in  court  by  right  of  a  reverter,  or  as  being 
in  themselves  possible  beneficiaries,  or 
under  the  doctrine  of  visitation.  Only  the 
attorney  general,  by  way  of  information, 
or  the  presbytery,  can  properly  invoke  the 
superintending  power  of  the  courts  over  the 
administration  of  the  trust.  MacKcnzie  v. 
Trustees  of  Presbytery  of  Jersey  City  (N. 
J.  Err.  &  App.)  3:  227,  61  Atl.  1027, '67  N. 
J.   Eq.   652.  (Annotated) 


458 


CHARITIES,  II.  b,  c. 


b.  Cy  jirda   doctrine. 

(See   also   aatne  heading   in  Digest  L.R.A. 
■     1-70.) 

Delivering  fund  to  other  similar  institu- 
tion where  legatee  refuses  bequest,  see 
Wills,  393. 

See  also  supra,  16. 

61.  A  trust  declared  in  a  conveyance  of 
property  for  public  worship  and  instruction 
for  the  benefit  of  an  indeiinite  number  of 
persons  according  to  Presbyterian  faith 
and  polity,  to  be  administered  either  by  a 
specified  church  society,  or,  upon  its 
failure  to  comply  with  certain  conditions, 
by  a  specified  presbytery,  is  enforceable  in 
New  Jersey,  either  exactly,  or,  under  the 
doctrine  of  cy  pres,  approximately.  Mac- 
Kenzie  v.  Trustees  of  Presbytery  of  Jersey 
City  (N.  J.  Err.  &  App.)  3:  227,  61  Atl. 
1027,  67  N.  J.  Eq.  652. 

62.  That  the  donor  of  a  fund  to  be  held 
in  trust  for  the  education  of  boys  unable  to 
educate  themselves  provides  that,  after  the 
building  is  secured,  the  income  of  the  fund 
shall  be  used  to  pay  teachers,  does  not  pre- 
vent the  use  of  a  part  of  it  for  the  heating, 
lighting,  and  care  of  the  building.  Tincher 
v.  Arnold,  7:  471,  147  Fed.  665,  77  C.  C.  A. 
649. 

63.  The  court  cannot,  upon  the  abandon- 
ment of  the  use  of  church  property  pur- 
chased by  funds  donated  by  members  of  the 
society,  and  its  attempted  sale  by  the  sur- 
viving members  of  the  congregation,  re- 
quire the  application  of  the  proceeds  cy 
pres,  if  no  other  organization  or  society 
exists  which  has  the  same  purpose  and  re- 
ligious belief  as  the  society  to  which  the 
property  belonged.  People  ex  rel.  Smith 
V.  Braucher,  47:  1015,  101  N.  E.  944,  258 
111.  604.  (Annotated) 

64.  In  case,  after  a  devise  of  a  fund  to 
an  academy  in  trust  to  pay  the  tuition  of 
worthy  poor  boys  of  a  certain  town,  the 
academy  is  by  law  made  a  free  high  school 
for  such  town,  the  fund  may  be  applied  in 
establishing  scholarships  for  such  boys, 
rather  than  in  relieving  the  taxpayers  of 
the  town  of  the  burden  of  maintaining  such 
school,  or  in  aiding  the  academy  in  paying 
its  general  expenses.  Pembroke  Academy 
v.  Epsom  School  Bist.  37:  646,  75  Atl.  100, 
75  N.  H.  408. 

c.  ILidbility  for  damages. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Sufficiency  of  evidence  to  show  negligence, 

see  Evidence,  2115. 
Liability  of  railroad  relief  association  for 

negligence  of  surgeons  and  nurses,  see 

Master  and  Servant,  179. 
See  also  supra,  19. 

:,  65.  A  failure  to  comply  with  a  duty  im- 
posed upon  a  master  by  statute  to  cover 
or  guard  dangerous  parts  of  machinery, 
Digest  1-52  I<.R.A.(N.S.) 


which  is  absolute  and  nondelegable,  ren- 
ders a  charitable  association  liable  to  its 
servants  and  employees  who  are  injured  in 
consequence  of  neglect  to  comply  with  the 
provisions  of  the  statute.  Mclnerny  v.  St. 
fluke's  Hospital  Asso.  46:  548,  141  N.  W. 
837,   122  Minn.   10. 

66.  The  property  of  a  charity  cannot  be 
sold  under  execution  issued  on  a  judgment 
rendered  for  the  nonfeasance,  misfeasance, 
or  malfeasance  of  its  agents  or  trustees. 
Fordyce  v.  Woman's  Christian  Nat.  Library 
Asso.  7:  485,  96  S.  W.  155,  79  Ark.  550. 

67.  A  religious  or  charitable  corporation 
is  not  immune  from  liability  for  injuries  to 
persons  coming  upon  its  property  to  per- 
form services  for  it,  because  of  the  unsafe 
condition  of  the  premises  due  to  the  negli- 
gence of  its  servants.  Hordern  v.  Salvation 
Array,  32:  62,  92  N.  E.  626,  199  N.   Y.  233. 

(Annotated) 

68.  A  charitable  corporation  like  the 
Salvation  Array  is  liable  for  injury  to  a 
pedestrian  through  the  negligence  of  its 
servant  in  handling  a  team  engaged  in  its 
charitable  work,  even  though  it  is  not  lack- 
ing in  care  in  the  selection  or  retention  of 
the  servant.  Basabo  v.  Salvation  Army, 
42:  1 144,  85  Atl.  120,  35  R.  I.  22. 

( Annotated ) 

69.  A  corporation  conducting  a  working 
girls'  home  as  a  public  charity  is  not  liable 
for  injury  to  an  inmate  by  the  fall  of  a 
fire  escape  on  the  premises,  due  to  the  neg- 
ligence of  servants  or  agents  properly  se- 
lected. Thornton  v.  Franklin  Square  House, 
22:  486,  86  N.  E.  909,  200  Mass.  465. 

(Annotated) 

70.  A  religious  corporation  is  liable  for 
injuries  to  one  engaging  in  repairing  its 
property  through  the  negligence  of  its  serv- 
ant in  furnishing  an  unsafe  scaffolding. 
Bruce  v.  Central  M.  E.  Church,  10:  74,  110 
N.  W.  951,  147  Mich.  230. 

71.  The  rule  of  respondeat  superior  does 
not  apply  in  case  of  trustees  who  are  ad- 
ministering a  fund  created  for  the  sole  pur- 
pose of  educating  and  maintaining  indigent 
boys  without  recompense,  who  have  exer- 
cised reasonable  care  to  select  competent 
servants;  and  therefore  they  are  not  liable 
for  injury  to  one  servant  through  negligent 
orders  given  him  by  another.  Farrigan  v. 
Pevear,  7:  481,  78  N.  E.  855,  193  Mass.  147. 

(Annotated) 

72.  The  fact  that  the  charter  of  a  char- 
itable corporation  maintained  for  education- 
al purposes  provides  that  it  may  sue  and  be 
sued  does  not  render  it  liable  for  the  torts 
of  its  officers  and  agents.  Alston  v.  Walden 
Academy,  ii:  1179,  102  S.  W.  351,  118  Tenn. 
24. 

73.  A  corporation  founded  and  main- 
tained by  charitable  bequests,  for  educational 
purposes,  is  not  liable  for  injury  to  a  pupil 
because  of  failure  to  maintain  fire  escapes 
on  the  building,  as  required  by  statute  and 
municipal  ordinance,  although  pupils  are 
required  to  pay  tuition  and  board,  where 
the  damages  would  have  to  be  paid  out  of 
the  trust  funds.     Alston  v.  Walden  Acad- 

.1     i^o — J.     iriiijiiv* 


CHARITIES,  II.  c. 


459 


emy,    ii:  1179,    102    S.    W.    351,    118   Tenn. 

24. 

Reform   school. 

Evidence  in  action  for  wrongful  detention 
in  reformatory,  see  Evidence,  1644, 
2025. 

74.  A  charitable  institution  organized 
for  reformatory  purposes,  which  detains  a 
girl  within  its  precincts  without  lawful  au- 
thority and  against  her  will,  cannot  escape 
liability  to  her  for  the  wrongful  imprison- 
ment because  it  believed  that  it  was  for 
her  best  interests,  and  that  she  would  be 
morally  and  financially  benefited  thereby. 
Gallon  V.  House  of  Good  Shepherd,  24:  286, 
122  N.  W.  631,  158  Mich.  361. 

75.  A  public  charitable  institution  or- 
ganized for  reformatory  purposes  is  liable 
in  damages  to  one  whom  it  imprisons  in  its 
institution  without  lawful  authority;  and 
it  cannot  escape  liability  on  the  theory  that 
it  is  not  liable  for  the  acts  of  its  servants, 
since  its  duty  with  respect  to  such  impris- 
onment is  one  which  it  cannot  delegate. 
Gallon  V.  House  of  Good  Shepherd,  24:  286, 

122  N.  W.  631,  158  Mich.  361.  • -■ 

Hospitals.  '"  "" 

Measure  of  damages  for  injury,  see  Dam- 
ages, 14,  423. 

Negligence  as  to  elevator  entrances,  see 
Elevators,  23. 

Evidence  in  action  for  negligence  of  phy- 
sician in  charity  hospital,  see  Evi- 
dence, 1817. 

Statement  to  nurse  that  operation  is  not  to 
be  made  as  notice  to  physician,  see 
Notice,  15. 

See  also  Hospitals,  2-S. 

76.  That  a  hospital  is  founded  by  prop- 
erty given  in  trust  for  that  purpose  does 
not  exempt  it  from  liability  for  negligent 
injury  to  its  employees.  Hewett  v.  Wo- 
man's Hospital  Aid  Asso.  7:  496,  64  Atl.  190, 
73  N.  H.  556. 

77.  That  a  hospital  is  conducted  as  a 
public  charity  without  expectation  of  profit 
does  not  render  it  immune  from  liability  for 
negligent  injuries  to  its  servants.  Hewett 
V.  Woman's  Hospital  Aid  Asso.  7:  496,  64 
Atl.  190,  73  N.  H.  556. 

78.  A  charitable  institution  conducting 
a  hospital  solely  for  philanthropic  and 
benevolent  purposes  is  not  liable  to  inmates 
for  ■  the  negligence  of  nurses.  Duncan  v. 
Nebraska  Sanitarium  &  Benev.  Asso.  41 : 
973,  137  N.  W.  1120,  92  Neb.  162. 

79.  A  charitable  institution  conducting 
a  hospital  does  not,  by  accepting  compen- 
sation from  a  patient  who  is  able  to  pay 
for  room,  board,  and  care,  incur  liability 
to  such  patient  for  the  negligence  of  nurses. 
Duncan  v.  Nebraska  Sanitarium  &  Benev. 
Asso.  41:  973,  137  N.  W.  1120,  92  Neb.  162. 

80.  A  charitable  institution  conducting 
a  hospital  for  benevolent  purposes  alone 
does  not  necessarily  incur  liability  in  dam- 
ages for  the  death  of  an  insane  patient  who 
coramitted  suicide  when  alone  in  a  room, 
though  pay  for  the  patient's  room  and  care 
was  accepted  under  an  oral  agreement  to 
keep  a  nurse  in  constant  attention.  Duncan 
Digest  1-52  Ii.R.A.(N.S.) 


V.  Nebraska  Sanitarium  &  Benev.  Asso.  41: 
973,  137  N.  W.  1120,  92  Neb.  162. 

81.  A  public  charitable  hospital,  organ- 
ized as  such  and  open  to  all  persons,  al- 
though conducted  under  private  manage- 
ment, is  not  liable  for  injuries  to  a  patient 
of  the  hospital,  resulting  from  the  negli- 
gence of  a  nurse  employed  by  it.  Taylor  v. 
Protestant  Hospital  Asso.  39:  427,  96  N.  E. 
1089,  85  Ohio  St.  90. 

82.  The  fact  that  a  public  charitable 
hospital  receives  pay  from  a  patient  for 
lodging  and  care  does  not  affect  i  ;  char- 
acter as  a  'cliaritable  institution,"  nor  its 
rights  or  liabilities  as  such  in  relation  to 
such  a  patient.  Taylor  v.  Protestant  Hos- 
pital Asso.  39:  427,  96  N.  E.  1089,  85  Ohio 
St.  90. 

83.  A  hospital  conducted  as  a  charity  is 
not  liable  to  a  patient  paying  for  board  a 
sum  less  than  the  per  capita  cost  of  main- 
tenance, for  an  unauthorized  operation  upon 
him  by  physicians  of  its  staff  serving  with- 
out pay  from  it,  although  the  operation 
constitutes  an  assault  for  which  the  physi- 
cian may  be  personally  liable,  since  the  re- 
lation between  it  and  the  physician  is  not 
that  of  master  and  servant.  Schloendorff 
V.  Society  of  New  York  Hospital,  52:  505, 
105  N.  E.  92,  211  N.  Y.  125.       (Annotated) 

84.  A  hospital  which  is  an  adjunct  of  a 
medical  school,  and  is  conducted  for  profit, 
is  not  a  purely  public  charity,  so  as  to  be 
exempt  from  liability  for  the  negligence  of 
its  servants,  although  it  takes  some  free 
patients.  University  of  Louisville  v.  Ham- 
mock, 14:  784,  106  S.  W.  219,  127  Ky.  564. 

85.  A  corporation  organized  to  conduct  a 
hospital  as  a  public  charity  is  not  liable 
for  the  negligence  of  its  servant  in  failing 
to  prevent  a  patient,  in  a  private  room  en- 
gaged for  his  use,  under  the  direction  of  his 
private  physician,  from  falling  from  the 
window,  although  the  use  of  the  room  in- 
cludes necessary  care  and  attention  by  em- 
ployees of  the  hospital.  Jensen  v.  Maine 
Eye  &  Ear  Infirmary,  33:  141,  78  Atl.  898, 
107  Me.  408. 

86.  One  who  at  the  request  of  a  patient 
about  to  enter  a  hospital  accompanies  him 
to  render  reasonably  necessary  assistance 
is  an  invitee  of  the  hospital,  to  whom  it 
owes  the  duty  of  exercising  ordinary  care 
to  have  the  premises  reasonably  safe.  Hos- 
pital of  St.  Vincent  of  Paul  v.  Thompson, 
51:  1025,  81  S.  E.  13,  116  Va.  101. 

87.  A  hospital  conducted  as  a  public 
charity  is  liable  for  negligent  injuries  to 
one  who  accompanied  to  its  building  an 
intending  patient  for  the  purpose  of  ren- 
dering necessary  assistance  to  him,  as  such 
person  is  not  a  beneficiary  of  the  charity. 
Hospital  of  St.  Vincent  of  Paul  v.  Thomp- 
son. 51:  1025,  81  S.  E.  13,  116  Va.  101. 

88.  A  hospital  maintained  by  a  railroad 
for  the  benefit  of  its  employees,  to  which 
they  are  required  to  contribute,  is  not  a 
charitable  institution  within  the  rule  which 
exempts  such  institutions  from  liability  for 
negligence.  Phillips  v.  St.  Louis  &  S.  F.  R. 
Co.  17:  1167,  111   S.  W.  109,  211  Mo.  419. 

89.  A  railroad  company  which  maintains 


460 


CHARIVARI— CHATTEL  MORTGAGE. 


for  the  benefit  of  its  injured  employees  a 
hospital  in  which  they  are  entitled  to  treat- 
ment, requiring  them  to  contribute  towards 
its  expense  and  appointing  the  assistants,  is 
liable  for  injury  to  an  employee  through  its 
failure  to  exercise  reasonable  care  in  select- 
ing competent  and  skilful  assistants,  al- 
though the  hospital  is  operated  under  an  in- 
dependent charter.  Illinois  C.  R.  Co.  v. 
Buchanan,  ii:  711,  103  S.  W.  272,  126  Ky. 
288. 

90.  A  railroad  company  which  attempts 
to  maintain  a  hospital  service  for  injured 
employees  with  a  fund  secured  by  deducting 
a  small  amount  monthly  from  the  wages  of 
each  employee  is  not  liable  for  the  malprac- 
tice of  physicians  employed,  if  it  uses  ordi- 
nary care  to  select  competent  and  skilful 
ones.  Arkansas  M.  R.  Co.  v.  Pearson,  34: 
317,  135  S.  W.  917,  98  Ark.  399. 

State  hospital  or  asylum  for  insane. 

91.  A  state  hospital  established  to  care 
for  insane  persons  is  not  liable  for  torts 
committed  by  a  person  under  its  care  who 
is  permitted  to  assist  in  the  work  of  the  in- 
stitution, notwithstanding  the  statute  pro- 
vides that  it  may  sue  and  be  sued.  Leavell 
V.  Western  Kentucky  Asylum  for  Insane, 
4:  269,  91  S.  W.  671,  "122  Ky.  213. 

92.  The  superintendent  of  a  state  lunatic 
asylum  is  not,  under  the  doctrine  of  re- 
spondeat superior,  responsible  for  injuries 
inflicted  upon  inmates  of  the  asylum  by 
employees  whom  he  appointed.  Ketterer  v. 
Kentucky  State  Bd.  of  Control,  20:  274,  115 
S.  W.  200,  131  Ky.  287. 

93.  A  state  board  having  control  of  a 
lunatic  asylum  which  is  supported  by  state 
funds  is  not  liable  for  injuries  inflicted  by 
its  employee  on  an  inmate  of  the  asylum, 
although  it  knew,  or  might  have  known, 
that  he  was  in  the  nabit  of  mistreating 
such  inmates.  Ketterer  v.  Kentucky  State 
Bd.  of  Control,  20:  274,  115  S.  W.  200,  131 
Ky.  287. 


CHARIVARI. 


Members  of,  as  mob  for  whose  acts  city  is 
liable,    see   Municipal    Corpobations, 
-,    ,353. 


CHARTER. 


Of  banks,  see  Banks,  I. 

Of  benefit  society,  revocation  of,  see 
Benevolent  Societies,  6,  7. 

Of  social  club,  see  Clubs,  5. 

Of  corporations  generally,  see  Corpo- 
rations, III. 

Of  municipality,  see  Municipal  Corpo- 
rations, I.  d. 

Of  railroad  company,  see  Railroads,  43,  44. 

Admissibility  in  evidence,  see  Evidence, 
2043,  2432. 

Effect  of,  to  repeal  prior  statute,  see  Stat- 
utes, 343,  350,  371. 

Digest   1-52  L.R,A.(N.S.) 


CHARTERERS. 

Carrier's  liability  for  ejection  of  passenger 
by  charterers  of  train,  see  Cabriebs, 
383. 


CHARTER  PARTY. 

Construction  of,  see  Carriers,  874. 


CHASTITY. 


Instruction  as  to  presumption  of,  see  Ap- 
peal AND  Error,  848. 

Presumption  and  burden  of  proof  as  to 
chastity  in  prosecution  for  rape,  see 
Evidence,  119,  120. 

Opinion  evidence  as  to,  see  Evidence,  1115, 
1116. 

Want  of,  as  defense  to  prosecution  for  kill- 
ing wife,  see  HoMicinE,  62,  69,  72. 

Remarks  or  publications  affecting,  see  Libel 
AND  Slander,  II.  b. 

Fraudulent  representations  as  to,  see  M.\r- 
RIAGE,   34. 

Impeaching  witness  by  showing  that  repu- 
tation for,  is  bad,  see  Witnesses,  153. 


CHATTEL  MORTGAGE. 

/.  In  general. 
II.  Validity;    consideration,    1—38. 
a.  Generally,    1—6. 
6.  Description  of  property,    7,   8. 

c.  Property  subject  to  mortgage; 

after-acquired    property,    9— 
21. 

d.  Possession;  poicer  to  sell,  22— 

38. 

III.  Filing;   recording;   renewing,   39— 

42. 

IV.  Effect;    rights    of    parties;    priori' 

ties,  4:3—4:9. 
a.  In  general,  43—45. 
6.  Priorities,  46—49. 
V.  Assigntnent;     satisfaction;     ahan- 
donment;  waiver,  50—57. 
VI.  Enforcement,  58—66. 

Defense  to  action  by  mortgagee  for  causing 
loss  of  lien,  see  Action  or  Suit,  34. 

Right  of  one  who  wrongfully  took  property 
subject  to,  and  against  whom  judgment 
was  recovered  by  real  owner,  to  re- 
cover from  third  person  whom  he  per- 
mitted to  take  proceeds  of  sale  of  prop- 
erty, see  Assumpsit,  16. 

Rights  of  attaching  creditors  to  mortgaged 
personal  property,  see  Attachment,  18. 

Of  exemptions,  see  Bankruptcy,  106;  Con- 
tracts, 430;  Exemptions,  6,  21. 

Conflict  of  laws    as    to,    see    Conflict    of 

Laws,  Li. 

'.  -     •.  Ill  lejini  r,  qo^:: 

K A.H.J  S<l-I  iasata 


CHATTEL  MORTGAGE,  I.— II.  b. 


461 


Regulation  and  licensing  of  chattel  mort- 
gage loan  brokers,  see  Constitutional 
Law,  111,  689;  License,  51;  Munici- 
pal Corporations,  176;  Search  and 
Seizure,  2. 

Oral  agreement  by  mortgagee  to  pay  debt 
of  mortgagor  to  avoid  attachment  of 
property,  see  Contracts,  226. 

By  cropper,  see  Croppers,  2,  3. 

Estoppel  of  one  leaving  chattels  in  another's 
possession  to  claim  title  as  against 
mortgagee  in  good  faith,  see  Estoppel, 
61. 

Controversy  as  to  rights  of  mortgagee  and 
vendee  of  chattels,  see  Evidence,  568. 

Evidence  in  replevin  suit  to  gain  possession 
of  mortgaged  chattels,  see  Evidence, 
770. 

By  husband  or  wife  to  third  person,  see 
Husband  and  Wife,  108. 

Injunction  against  seizure  of  property  un- 
der, see  Injunction,  275. 

Effect  of,  on  insurance,  see  Insurance,  200, 
234-23G. 

Conclusiveness  of  judgment  as  to,  see  Judg- 
ment, 262. 

Right  to  jury  trial  in  trover  to  recover 
possession  of  mortgaged  chattel,  see 
Jury,  44. 

Bipfht  of  constable  of  justice's  court  to  levy 
fi.  fa.  issued  upon  foreclosure  of  chat- 
tel mortgage  in  superior  court,  see 
Levy  and  Seizure,  19. 

As  equitable  mortgage  on  land,  see  Most- 
gage,  8,  9. 

Director  of  bank  as  agent  of  bank  or  of  one 
giving  chattel  mortgage  to  bank,  see 
Principal  and  Agent,  5. 

Chattel  mortgagee  as  party  to  replevin  suit, 
see  Replevin,  32. 

Mortgaging  chattel  as  waiver  of  purchaser's 
right  to  return,  see  Sale,  66. 

Prerequisite  to  action  to  recover  property 
sold  under,  see  Tender,  20. 

Question  for  jury  as  to  whether  chattel 
mortgage  is  intended  to  secure  note, 
see  Trial,  288. 

Conversion  by  factor  selling  property  sub- 
ject to  chattel  mortgage,  see  Trover, 
20. 

Unexercised  power  of  sale  under,  as  de- 
fense to  action  for  conversion,  see  Trov- 
er and  Conversion,  45. 

I.  In  general. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 

II.  Validity;  consideration. 

a.  Generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Necessity  of  recording,  see  infra,  III. 

Validity  of  mortgage  of  exemptions  as 
against  trustee  in  bankruptcy,  see 
Bankruptcy,  106. 

Preference  to  creditors  by,  see  Bankruptcy, 
62,  76,  85-87. 

Right  of  corporation  to  execute,  see  Corpo- 
rations, 86,  87,  97. 

Digest   1-52   L.R.A.(N.S.) 


1.  A  chattel  mortgage  purporting  to 
secure  payment  of  a  promissory  note  is  not 
invalid  because  the  note  was  not  signed, 
if  the  mortgage  correctly  describes  the  note 
except  as  to  the  signature,  and  states  the 
amount  of  debt,  and  terms  and  conditions 
of  payments.  Lierman  v.  O'Hara,  44:  1153, 
140  N.  W.  1057,  153  Wis.  140.     (Annotated) 

2.  An  honest  debt  may  be  so  used  as 
to  hinder,  delay,  and  defraud  creditors,  and 
that  it  is  a  bona  fide  debt  is  a  mere  cir- 
cumstance bearing  on  the  question  of  good 
faith,  when  the  inquiry  is  whether  there 
was  fraud  in  the  giving  of  a  trust  deed  to 
secure  such  debt.  Gilbert  v.  Peppers,  36: 
1 181,    64    S.    E.    361,    65    W.    Va.    355. 

3.  A  chattel  mortgage  of  stock  in  trade 
and  other  property  not  characterized  by 
actual  fraud  as  to  creditors  of  the  mort- 
gagor, may  be  constructively  fraudulent  as 
to  them  respecting  the  stock,  and  valid  as  to 
the  other  property.  Eastman  v.  Parkinson, 
13:  921,  113  N.  W.  649,  133  Wis.  375. 

(Annotated) 
Mortgage  on  stock  of  goods  in  bulk. 
See  also   Fraudulent  Conveyances,  22. 

4.  A  chattel  mortgage  is  not  within 
the  meaning  of  a  statute  forbidding  the 
sale,  transfer,  or  assignment  of  a  stock  of 
goods  in  bulk  without  certain  preliminary 
proceedings.  Hannah-  v.  Richter  Brewing 
Co.  12:  178,  112  N.  W.  713,   149  Mich.  220. 

(Annotated) 
Consideration;  affidavits  of. 

5.  An  affidavit  of  consideration  an- 
nexed, in  compliance  with  N.  J.  P.  L.  1902, 
p.  487,  §  4,  to  a  chattel  mortgage  owned  by 
a  corporation,  may  be  made  by  an  officer 
of  the  corporation,  and  is  valid  without  a 
recital  that  he  is  the  agent  or  attorney  of 
the  company,  or  that  he  is  specifically  au- 
thorized to  make  the  affidavit.  American 
Soda  Fountain  Co.  v.  Stolzenbach,  16:  703, 
68  Atl.  1078,  75  N.  J.  L.  721.      (Annotated) 

6.  An  affidavit  annexed  to  a  chattel 
mortgage,  securing  the  payment  of  notes 
given  as  the  purchase  price  of  a  soda  foun- 
tain apparatus,  which  states  that  the  con- 
sideration is  the  apparatus,  and  describes 
it,  is  a  substantial  compliance  with  N.  J. 
P.  L.  1902,  p.  487,  §  4,  requiring  the  annex- 
ation to  a  chattel  mortgage  of  an  affidavit 
stating  its  consideration.  American  Soda 
Fountain  Co.  v.  Stolzenbach,  16:  703,  64 
Atl.  1078,  75  N.  J.  L.  721. 

6.  Description  of  property. 

(See   also    same   heading   in  Digest   L.R.A. 
1-10.) 

7.  The  mortgage  of  the  statutory  ex- 
emptions from  execution  to  which  a  mer- 
chant is  entitled  out  of  his  stock  in  trade 
is  sufficiently  specific  to  be  upheld  where 
by  statute  he  is  entitled  to  claim  as 
exempt  merchandise  to  a  specified  value 
out  of  the  stock.  Re  National  Grocery 
Co.  30:  982,  181   Fed.  33,  104  C.  C.  A.  47. 

8.  A  description  of  horses  in  a  chattel 
mortgage  thereof  as  "one  span  of  bay  geld- 
ings seven  and  eight  years   of  age,  weight 


4(52 


CHATTEL  MORIXJAGE,  II.  c. 


about  2,500  lbs.,  named  'Charlie  and  John' 
.  .  .  tliis  day  bouglit  of  Guy  Scott,"  is 
a  sufficient  description  of  the  property 
niortyaged,  within  the  rule  that  a  descrip- 
tion which  will  enable  a  third  person  aided 
by  inquiry  which  the  instrument  itself  sug- 
gests to  identify  the  property  is  sufficient. 
Farmers'  &  M.  State  Bank  v.  Sutherlin,  46: 
95,  141  N.  W.  827,  93  Neb.  707. 

o.  Property  subject  to  mortgage;  after- 
j  acquired  property, 

(See   also   same   heading   in  Digest   L'.R.A. 
1-10.) 

9.  A  roller-top  desk  in  the  office  of  an 
elevator  is  not  covered  by  chattel  mortgage 
on  the  elevator,  chutes,  bins,  machinery,  and 
other  appurtenances  thereto  belonging. 
Dixson  V.  Ladd,  46:  206,  142  N.  W.  259,  32 
S.  D.  163.  (Annotated) 

10.  A  mortgage  by  a  renter  of  crops  to 
be  grown  during  the  year,  and  also  of  crops 
to  be  raised  "each  successive  year,"  until 
the  debt  is  paid,  will  not  attach  to  crops 
grown  in  a  subsequent  year  on  land  rented 
by  him  from  a  difi'erent  landlord,  in  which 
he  had  no  interest  when  the  mortgage  was 
executed.  Windham  v.  Stephenson,  19: 
910,  47  So.  280,  156  Ala.  341.  (Annotated) 
After-acquired  property. 

11.  The  intent  of  the  parties  to  a  chat- 
tel mortgage  of  merchandise,  as  disclosed 
by  the  instrument,  that  additions  made  from 
time  to  time  for  the  purpose  of  replenishing 

«  the  stock,  which  was  being  disposed  of  in 
the  ordinary  course  of  business  at  retail, 
should  be  included  in  and  covered  by  the 
lien  of  the  mortgage,  will  be  given  effect. 
Madson  v.  Rutten,  13:  554,  113  N.  W.  872, 
16  N.  D.  281. 

12.  A  clause  in  a  mortgage  given  by  a 
manufacturing  corporation  upon  all  its 
property,  real  and  personal,  to  secure  its 
negotiable  bonds,  with  the  right  of  posses- 
sion and  enjoyment  in  the  mortgagor  for  its 
own  use  and  benefit  until  default,  which 
purports  in  terms  to  cover  after-acquired 
personal  property,  is  not  good,  as  against  a 
trustee  in  bankruptcy  appointed  in  pro- 
ceedings commenced  three  days  after  the 
mortgagee,  in  consequence  of  a  default  in 
interest,  had  taken  possession,  as  to  shift- 
ing stock  and  material  acquired  after  the 
execution  of  the  mortgage,  but  on  hand 
when  possession  was  taken  by  the  mortga- 
gee. Zartman  v.  First  Nat.  Bank,  12:  1083, 
82  N.  E.  127,  189  N.  Y.  267. 

13.  A  clause  in  a  chattel  mortgage  pur- 
porting in  terms  to  cover  after-acquired 
personal  property  not  yet  in  existence  will 
be  given  effect  by  a  court  of  equity  so  far 
as  practicable,  provided  no  interest  is  af- 
fected except  that  of  the  mortgagor  or 
mortgagee;  but  equity  will  not  grant  re- 
lief if  the  interests  of  creditors  are  in- 
volved. Zartman  v.  First  Nat.  Bank,  12: 
1083,  82  N.  E.  127,  189  N.  Y.  267. 

14.  A  chattel  mortgage  is  not  good  at 
law,  as  against  subsequent  creditors  of  the 
mortgagor,  so  far  as  it  purports  to  cover 
Dieest  1-52  I..R.A.(N.S.) 


after-acquired  property  not  in  existence 
actually  or  potentially  at  the  time  of  the 
execution  of  the  mortgage,  but  which  came 
into  existence  before  the  mortgagee  had 
taken  possession  under  the  mortgage. 
Zartman  v.  First  Nat.  Bank,  12:  1083,  82 
N.  E.  127,  189  N.  Y.  267. 

15.  A  trustee  in  bankruptcy  of  a  chattel 
mortgagor,  appointed  in  proceedings  com- 
menced after  the  mortgagee  had  taken  pos- 
session upon  default  in  the  payment  of  in- 
terest, has  the  same  right  as  a  creditor 
armed  with  an  attachment  or  execution, 
as  to  property  acquired  by  the  mortgagor 
after  the  execution  of  the  mortgage,  whicli 
purported  to  cover  after-acquired  property. 
Zartman  v.  First  Nat.  Bank,  12:  1083,  82 
N.  E.  127,  189  N.  Y.  267. 

16.  A  parol  mortgage  to  secure  a  loan 
for  the  purchase  of  a  stock  of  goods,  which 
is  to  attach  not  only  to  the  goods  already  in 
stock,  but  to  such  as  might  be  added  there- 
after, is  valid  as  between  the  parties.  Mower 
V.  McCarthy,  7:  418,  64  Atl.  578,  79  Vt.  142. 

17.  A  parol  mortgage  to  one  loaning 
money  to  purchase  a  stock  of  goods  upon 
the  stock,  and  additions  to  it,  is  valid;  and 
possession  taken  under  it  by  the  mortgagee 
will  relate  to  the  date  of  the  agreement,  so 
as  to  preclude  creditors  of  the  purchaser 
from  sharing  in  the  proceeds  of  their  sale. 
Mower  v.  McCarthy,  7:  418,  64  Atl.  578,  79 
Vt.  142.  (Annotated) 
Future  earnings. 

18.  A  chattel  mortgage  which  purports 
to  assign,  to  secure  a  specified  debt,  all  the 
future  earnings  of  a  specified  threshing  ma- 
chine, also  of  any  other  threshing  machines 
operated  by  the  mortgagor  and  of  the  men 
and  teams  operating  them,  which  may  accrue 
for  threshing  during  the  then-ensuing  two 
years  within  three  designated  townships,  is 
void  against  creditors  who  had  no  actual 
notice  thereof.  Dyer  v.  Schneider,  20:  505, 
118  N.  W.  1011,  106  Minn.  271.  (Annotated) 
Increase  of  animals. 

Burden  of  proving  right  to  increase  of  ani- 
mals, see  EviDEKCE,  569. 
See  also  infra,  43. 

19.  Where  a  chattel  mortgage  does  not 
transfer  title,  such  mortgage  on  cows  does 
not  cover  their  calves  in  gestation  when  the 
mortgage  is  executed,  and  born  prior  to  its 
foreclosure,  where  they  are  not  mentioned 
in  the  instrument.  Demers  v.  Graham, 
14:  431,  93  Pac.  268,  36  Mont.  402. 

( Annotated ) 

20.  A  legislative  declaration  that  the  in- 
crease of  property  pledged  is  pledged  with 
the  property  indicates  an  intention  that 
the  rule  is  different  in  case  of  chattel  mort- 
gages. Demers  v.  Graham,  14:  431,  93  Pac. 
268,  36  Mont.  402. 

21.  A  legislative  declaration  that  a 
mortgage  is  a  lien  upon  everything  that 
would  pass  by  a  grant  of  the  property  will 
not  be  construed  to  apply  to  the  natural  in- 
crease by  procreation  of  domestic  animals 
subject  to  chattel  mortgages.  Demers  v. 
Graham,  14:  431,  93  Pao.  268,  36  Mont.  402. 


CHATTEL  MORTGAGE,  II.  d. 


463 


d.  Possessison;  potver  to  sell. 

{See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Mortgagee's  right  to  take  possession. 

22.  A  stipulation  in  a  chattel  mortgage 
whic  authorizes  the  mortgagee  upon  named 
contingencies  to  take  possession  of  the  mort- 
gaged property  is  valid,  Martin  v.  Hol- 
loway,   25:  no,   102   Pac.   3,   16  Idaho,   513. 

23.  It  is  immaterial  whether  the  mort- 
gagee has  good  cause  to  believe  that  he  is 
insecure  if  he  in  fact  deemed  himself  to  be 
«o,  under  a  clause  in  a  chattel  mortgage  pro- 
viding that  he  may  take  possession  of  the 
property  if  he  deem  himself  insecure.  Flem- 
ing V.  Thorp,  19:  915,  96  Pac.  470,  78  Kan. 
237.  (Annotated) 
Permitting  mortgagor  to  retain  pos- 
session or  to  sell. 

Change  of  possession  of  pledge,  see  Pledge 
AND  Collateral  Security,  2-10. 

Change  of  possession  of  personalty  sold,  see 
Sale,  I.  b. 

See  also  infra,  31,  34,  35,  62. 

24.  A  sale  by  a  mortgagor  of  chattels, 
in  whom  is  the  legal  title,  with  the  con- 
sent of  the  first  mortgagee,  without  notice 
to  intermediate  lien  holders,  does  not  fore- 
close their  liens,  although  the  sale  is  made 
for  the  full  value  of  the  property,  and  the 
proceeds  are  applied  to  the  payment  of  the 
debt  secured  by  the  first  mortgage.  Platte 
Valley  Cattle  Co.  v.  Bosserraan-Gates  Live 
Stock  &  L.  Co.  45:  1137,  202  Fed.  692,  121  C. 
C.  A.  102.  (Annotated) 

25.  A  provision  in  a  chattel  mortgage 
that  the  possession  of  the  mortgaged  prop- 
erty shall  remain  in  the  mortgagor,  with 
power  to  dispose  thereof  and  apply  all  or  a 
part  of  the  proceeds  in  payment  of  the  mort- 
gage indebtedness,  is  valid  as  between  the 
parties.  Martin  v.  HoUoway,  25:  no,  102 
Pac.  3,  16  Idaho,  513. 

26.  A  deed  of  trust  on  a  stock  of  mer- 
chandise, disclosing  on  its  face  intention 
to  permit  the  debtor  to  remain  in  pos- 
session and  sell  and  dispose  of  the  prop- 
erty, replenishing  the  sold  goods  by  new 
purchases,  is  fraudulent  per  se,  and  void 
as  to  both  existing  and  subsequent  credit- 
ors. Gilbert  v.  Peppers,  36:  1181,  64  S. 
E.   361,  65  W.  Va.  355.  (Annotated) 

27.  An  agreement  in  a  chattel  mortgage 
permitting  the  mortgagor  to  sell  for  his 
own  benefit  renders  the  mortgage  fraudu- 
lent, as  matter  of  law,  as  to  creditors  rep- 
resented by  a  trustee  in  bankruptcy  ap- 
pointed in  proceedings  commenced  after  the 
mortgagee  had  taken  possession.  Zartman 
V.  First  Nat.  Bank,  12:  1083,  82  N.  E.  127, 
189  N.  Y.  267. 

28.  A  chattel  mortgage  upon  a  stock  of 
merchandise,  which  contains  a  stipulation 
authorizing  the  mortgagor  to  sell  the  prop- 
erty in  the  ordinary  course  of  business  at 
retail,  without  requiring  the  net  proceeds 
of  the  sales  to  be  applied  upon  the  mortgage 
indebtedness,  is  conclusively  deemed  to  be 
fraudulent  and  void  as  to  the  creditors  of 
Digest  1-52  L.R.A.(N.S.) 


the  mortgagor.     Madson  v.  Rutten,  13:  554, 
113  N.  W.  872,  16  N.  D.  281. 

29.  A  chattel  mortgage  given  to  a  cred- 
itor who  has  collateral  security  with  which 
he  is  satisfied,  for  the  purpose  of  enabling 
the  mortgagor  to  force  a  settlement  with 
another  creditor,  is  void  where  the  mort- 
gagor is  permitted  to  continue  his  business 
without  accounting  to  the  mortgagee  for 
sales  which  he  makes  of  the  mortgaged 
propertv.  Greig  v.  Mueller,  46:  722,  133 
Pac.  94'  66  Or.  27. 

30.  Where  the  mortgagee  of  certain  cot- 
ton gave  the  mortgagor  authority  to  sell  the 
cotton  and  deposit  the  proceeds  in  a  bank 
in  the  name  of  the  mortgagor's  bondsmen 
in  a  suit,  and  the  same  was  done,  the  lien 
of  the  mortgage  was  discharged,  and  the 
funds,  prior  to  reaching  the  mortgagee,  were 
subject  to  garnishment  at  the  instance  of  a 
creditor  of  the  mortgagor.  Carr  v.  Braw- 
ley,  43:  302,  125  Pac.  1131,  34  Okla.  500. 

(Annotated) 
Effect    of   mortgagee's    taking   posses- 
sion. 
Delivery    of    possession    to    mortgagee    by 
corporate  officers,  see  Corporations,  57. 
Effect  of  taking  possession  by  pledgee,  see 
Pledge  and  Collateral  Security,  22. 

31.  A  mortgagee  of  a  stock  of  merchan- 
dise who  takes  possession  thereof,  with  the 
consent  of  the  mortgagor,  before  any  other 
right  or  lien  attaches,  acquires  a  right  of 
possession  under  the  mortgage,  provided  it 
is  valid  between  the  parties  thereto,  good 
as  against  everybody,  notwithstanding  a 
provision  of  the  mortgage  that  the  mort- 
gagor shall  retain  possession  of  the  mort- 
gaged property,  with  power  to  dispose  there- 
of in  the  ordinary  course  of  business,  ap- 
plying only  a  part  of  the  proceeds  in  dis- 
charge of  the  mortgaged  debt.  Martin  v. 
Holloway,  25:  no,  102  Pac.  3,  16  Idaho, 
513.  .      (Annotated) 

32.  Under  a  statute  providing  that  if  a 
chattel  mortgagee  receive  and  retain  actual 
possession  of  the  property  mortgaged,  he 
may  omit  the  filing  of  his  mortgage  during 
the  continuance  of  such  actual  possession, 
such  possession  is  equivalent  to  the  record- 
ing of  the  mortgage,  and  gives  to  the  world 
the  same  notice  that  would  be  given  by  the 
recording  thereof.  Martin  v.  Holloway, 
25:  no,  102  Pac.  3,  16  Idaho,  513. 

33.  An  attaching  creditor  of  a  mortgagor 
cannot  challenge  the  mortgagee's  right  to 
possession  of  the  mortgaged  chattels,  which 
has  been  taken  with  the  consent  of  the  mort- 
gagor, on  the  ground  that  there  has  been  no 
default  by  the  mortgagor  which  would  en- 
title the  mortgagee  to  take  possession. 
Martin  v.  Holloway,  25:  no,  102  Pac.  3,  16 
Idaho,   513. 

34.  Where  a  chattel  mortgage  upon  a 
stock  of  merchandise  which  is  valid  between 
the  parties,  contains  a  provision  that  the 
mortgagor  shall  retain  possession  and  have 
power  to  dispose  of  the  mortgaged  property 
in  the  ordinary  course  of  trade  and  apply 
one  half  the  proceeds  upon  the  mortgage 
debt,  which  provision  is  void  as  against 
attaching  creditors,  the  taking  of  possession 


464 


CHATTEL  MORTGAGE,  III.,  IV.  a. 


of  the  mortgaged  property  by  the  mortgagee, 
with  the  consent  of  the  mortgagor,  before 
any  specific  riglit  or  lien  upon  the  pi'operty 
is  acquired  by  a  creditor,  cures  the  mortgage 
of  such  void  provision  and  gives  such  mort- 
gagee valid  possession,  which  he  may  main- 
tain as  against  a  subsequent  attaching  cred- 
itor. Martin  v.  Holloway,  25:  no,  K)2  Pac. 
3,  16  Idaho,  513. 

35.  That  a  chattel  mortgagee  takes  pos- 
session of  the  mortgaged  merchandise  for 
the  purpose  of  foreclosure  before  any  at- 
tempt to  assert  their  rights  is  made  by 
creditors  of  the  mortgagor,  as  to  whom  the 
mortgage  was  void  because  it  permitted  the 
mortgagor  to  sell  the  mortgaged  merchan- 
dise at  retail  without  requiring  the  net  pro- 
ceeds of  sales  to  be  applied  upon  the  mort- 
gage indebtedness,  does  not  operate  to  val- 
idate the  instrument,  or  in  any  manner  af- 
fect the  rights  of  the  creditors.  Madson 
V.  Rutten,  13:  554,  113  N.  W.  872,  18  N.  D, 
281. 

36.  A  chattel  mortgagee  who  fails  to 
renew  his  lien  as  provided  by  statute  may 
preserve  it  as  against  subsequently  acquired 
interests,  by  taking  possession  of  the  prop- 
erty as  provided  in  the  instrument.  Boyer 
V.  M.  D.  Knowlton  Co.  38:  224,  97  N.  E. 
137,  85  Ohio  St.  104. 

37.  The  doctrine  that  taking  possession 
of  after-acquired  chattels  according  to  the 
provisions  of  a  mortgage  covering  them 
gives  precedence  of  liens  over  a  subsequent 
attachment  is  .not  affected  by  a  statute 
providing  that  no  mortgage  of  chattels  is 
valid  against  strangers,  unless  possession  of 
such  property  is  delivered  to  and  retained 
by  the.  mortgagee,  or  the  mortgage  is  re- 
corded. Burrill  v.  Whitcomb,  i:  451,  61 
Atl.  678,  100  Me.  286. 

38.  Taking  possession  of  after-acquired 
stock  in  trade  covered  by  a  chattel  mort- 
gage, according^  to  its  provisions,  will  give 
the  mortgagee  precedence  on  a  subsequent 
attachment,  although  the  property  was  not 
purchased  with  the  proceeds  of  stock  sold, 
and  the  mortgagor  did  not  expressly  assent 
to  such  possession  after  acquiring  the  prop- 
erty. Burrill  v.  Whitcomb,  i:  451,  61  Atl. 
678,  100  Me.  286.  (Annotated) 

///.  Filing;  recording;  renewing. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Necessity  of  filing. 

Invalidity  of  unrecorded  chattel  mortgage 
as  against  trustee  in  bankruptcy,  see 
Bankruptcy,  85-87. 

Record  of  pledge,  see  Pledge  and  Col- 
lateral Security,  2,  9. 

Necessity  of  recording  assignment  of  liquor 
license,  see  Pledge  and  Collateral 
Security,  2-10. 

Effect  of  failure  to  comply  with  law  as  to 
recording  of,  in  case  of  notes  treated 
as  mortgages,  see  Receivers,  34. 

Filing  contract  of  conditional  sale,  see 
Sale,  47-50. 

See  also  infra,  60.  ... 

Digest  1-52  L.R.A.(N.S.) 


39.  An  unfiled  chattel  mortgage  is  good 
between  the  parties  thereto,  in  the  absence 
of  actual  fraud  as  to  creditors  of  the  mort- 
gagor; and  if  the  mortgagee  neglects  to  file 
tlie  instrument  until  the  mortgagor  incurs 
indebtedness  to  third  parties,  and  he  is  ad- 
judged a  bankrupt  before  any  of  thorn  ob- 
tain a  lien  on  the  property,  the  trustee  ac- 
quires no  better  claim  thereto  than  the 
mortgagor  had,  and  cannot  successfully  im- 
peach the  mortgage  in  the  interest  of  cred- 
itors. Eastman  v.  Parkinson,  13:  921,  113 
N.  W.  649,  133  Wis.  375. 

Sufficiency. 

40.  The  filing  of  a  chattel  mortgage  ia 
accomplished  in  legal  eflect  by  delivering  it 
to  and  leaving  it  with  the  proper  public 
oiTicor  for  tliat  purpose,  regardless  of  any 
failure  of  duty  upon  the  part  of  such  officer. 
Eastman  v.  Parkinson,  13:  921,  113  N.  W. 
649,  133  Wis.  375. 

41.  A  mistake  in  the  middle  initial  of  a 
name  signed  to  a  chattel  mortgage  by  one 
whose  business  signature  consists  of  his 
surname  and  initials  destroys  the  efficacy 
of  its  record  as  against  subsequent  bona 
fide  purchasers.  First  Nat.  Bank  v.  Hacoda 
Mercantile  Co.  32:  243,  53  So.  802,  169  Ala. 
476. 

Place. 

Necessity  of  recording  in  another  state  to 
which  property  is  removed,  see  Con- 
flict OF  Laws,  116. 

42.  It  ia  not  necessary  for  a  chattel 
mortgagee,  in  order  to  preserve  the  lien  of 
his  valid  recorded  mortgage,  to  file  it,  or 
a  copy  thereof,  for  registry  in  the  county  to 
which  the  mortgagor  has  removed  the  chat- 
tels without  the  knowledge  or  consent  of 
the  mortgagee.  National  Bank  of  Com- 
merce V.  Jones,  12:  310,  91  Pac.  191,  18 
Okla.  555. 

IV.  Effect;  rights  of  parties;  priorities. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Evidence  to  show  intent  in  giving  mortga^, 
see  Evidence,  1618. 

What  constitutes  fixtures  as  between  mort- 
gagor and  mortgagee,  see  Fixtures. 

Replevin  by  mortgagee  against  administra- 
tor of  mortgagor  for  goods  of  which 
the  latter  died  possessed,  see  Replevin, 
6. 

43.  A  chattel  mortgage  on  domestic  ani- 
mals and  their  increase,  which  is  executed 
during  the  period  of  gestation  and  is  duly 
filed  for  record,  creates  a  lien  upon  the  in- 
crease when  the  same  are  born,  which  will 
continue  so  long  as  the  mortgage  lasts,  not 
only  as  between  the  mortgagor  and  mort- 
gagee, but  as  against  creditors  and  bona 
fide  purchasers  of  the  mortgagor.  Holt  ^Xi 
Lucas,  17:  203,  96  Pac.  30,  77  Kan.  710.       I'n- 

44.  If  the  dealings  with  a  ship  by  the 
mortgagor  are  of  such  a  character  as  to  be 
inconsistent  with  the  sufficiency  of  the  secu- 


CHATTEL  MORTGAGE,  IV.  b;  V.      ! 


465 


rity,  the  mortgagee  may  take  possession,  al-  i  affidavit  being  filed.     First  State  Bank  v. 
though  there  has  not  been  any  actual  default    King   «fc   McCants,   47:  668,   133   Pac.   30,   37 


on  the  part  of  the  mortgagor  under  the 
mortgage,  and  although  the  mortgagee  has 
rot  commenced  any  formal  proceedings. 
The  Manor,  4  B.  E.  C.  500,  [1907]  P.  339. 
Also  Reported  in  9G  L.  T.  N.  8.  871. 

(Annotated) 

45.  A  mortgagee  of  a  ship  is  not  en- 
titled to  unpaid  freight  which  became  due 
previously  to  the  date  of  his  taking  posses- 
sion of  the  ship.  Shillito  v.  Biggart,  4 
B.  R.  C.  532,  [1903]  1  K.  B.  683.  Also  Re- 
ported in  72  L.  J.  K.  B.  N.  S.  294,  51  Week. 
Rep.  479,  88  L.  T.  N  S.  426,  19  Times  L.  R. 
313,  8  Com.  Cas.  137,  9  Asp.  Mar.  L.  Cas. 
396.  (Annotated) 

6.  Priorities. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Statute  postponing  existing  valid  mortgage 
lien  to  subsequently  created  lien,  see 
Constitutional  Law,  55. 

Priority  in  assets  of  partnership  as  be- 
tween chattel  mortgage  to  secure  indi- 
vidual debt  and  other  creditors,  see 
Partnership,    41. 

Of  funds  in  hands  of  receiver,  see  Re- 
ceivers,   34. 

See  also  supra,  36-38;   infra,  50,  63. 

46.  The  lien  of  a  prior  valid  recorded 
chattel  mortgage  will  take  precedence  over 
the  subsequently  acquired  lien  of  a  livery- 
stable  keeper  or  agister  upon  animals 
placed  in  his  charge,  unless  such  animals 
were  delivered  to  such  lien  holder  to  be 
kept  and  cared  for  by  him  with  the  con- 
sent of  the  mortgagee.  National  Bank  of 
Commerce  v.  Jones,  12:  310,  91  Pac.  191, 
18  Okla.  555.  (Annotated) 

47.  The  attachment  of  a  mortgaged 
chattel  as  the  property  of  the  mortgagor 
pending  a  suit  for  strict  foreclosure  of  the 
mortgage  is  subject  to  the  determination 
of  the  foreclosure  ;  It,  even  though  the 
attachment  was  levied  and  the  foreclosure 
suit  begun  when  the  property  was  tem- 
porarily in  another  state.  North  Carolina 
Land  &  Lumber  Co.  v.  Boyer,  39:  627,  191 
Fed.  552,  112  C.  C..A.  162. 

48.  The  declaration  of  a  forfeiture  and 
institution  of  a  proceeding  strictly  to  fore- 
close a  mortgage  on  chattels  vest  title  in 
the  mortgagee  which,  when  judicially  estab- 
lished by  judgment,  takes  precedence  of  an 
attachment  levied  against  the  property  as 
that  of  the  mortgagor  after  the  foreclosure 
suit  was  begun.  North  Carolina  Land  & 
Lumber  Co.  v.  Boyer,  39:627,  191  Fed.  552, 
112  C.  C.  A.  162. 

49.  One  who  has  taken  a  chattel  mort- 
gage with  knowledge  of  a  valid  subsisting 
lien  on  the  property  covered  thereby  does 
not  become  a  subsequent  encumbrancer  in 
good  faith  for  value,  so  as  to  give  his  lien 
priority  over  the  first  after  the  statutory 
period  for  the  filing  of  a  renewal  affidavit 


Okla.  744, 


(Annotated) 


V.  Assignment;  satisfaction;  ahandon- 
ment;  waiver, 

(See   also   same   heading   in   Digest  L.R.A, 
1-10.) 

Assignment. 

50.  Even  though  the  statute  does  not  ex- 
pressly require  the  recording  of  an  assign- 
ment of  a  chattel  mortgage,  failure  to  make 
the  record  will  suboi-dinate  the  assignees  to 
the  rights  of  a  bona  fide  purchaser  of  a  sec- 
ond mortgage  upon  the  same  property  from 
the  original  mortgagee,  who,  after  assigning 
the  first  mortgage,  fraudulently  cancels  it 
of  record  and  secures  another  in  substitu- 
tion for  it;  and  it  is  immaterial  that  the 
note  secured  by  the  second  mortgage  is  not 
negotiable  in  form.  Central  Trust  Co.  v. 
Stepanek,  15:  1025,  115  N.  W.  891,  138  Iowa, 
131.  (Annotated) 
Satisfaction;  discharge. 
Review  of  verdict  as  to  sufficiency  of  tender 

of    amount    due    on,    see    Appeal    and 
Error,  904. 

51.  Where  a  ch&,ttel  mortgage  is  a  mere 
lien,  tender  of  the  amount  due  at  any  time 
before  sale  under  foreclosure  discharges  the 
lien.  Thomas  v.  Seattle  Brewing  &  Malting 
Co.  15:  1164,  94  Pac.  116,  48  Wash.  560. 

(Annotated) 
Abandonment;   w^aiver. 
See  also  supra,  30. 

52.  Consent  by  a  chattel  mortgagee  that 
the  property  shall  be  taken  out  of  the 
state  in  which  the  mortgage  was  given  is  a 
waiver  of  the  mortgage  as  against  every 
person  except  the  mortgagor.  Jones  v. 
North  Pacific  Fish  &  Oil  Co.  6:  940,  84  Pac. 
1122,  42  Wash.  332.  (Annotated) 

53.  A  chattel  mortgagee  does  not  waive 
the  lien  of  his  mortgage  by  causing  a  writ 
of  attachment  to  be  levied  upon  the  mort- 
gaged property.  Madson  v.  Rutten,  13:  554, 
113  N.  W.  872,  16  N.  D.  281. 

54.  The  holder  of  a  promissory  note 
which  is  secured  by  a  chattel  mortgage  does 
not  waive  or  lose  his  mortgage  security  by 
attempting  to  collect  the  note  by  proceed- 
ings in  attachment,  or  other  recognized  proc- 
ess provided  by  law  for  the  collection  of 
debts,  since,  as  such  remedies  are  all  for  the 
purpose  of  enforcing  the  same  right,  and  all 
aid  in  the  enforcement  thereof,  without  con- 
flicting with  each  other,  the  remedies  are 
not  inconsistent.  Kansas  City  Live  Stock 
Com.  Co.  V.  Bank  of  Hamlin,  24:  490,  101 
Pac.  617,  79  Kan.  761.  (Annotated) 

55.  A  mortgagee  of  chattels  does  not 
lose  his  lien  thereon  by  levying  an  attach- 
ment upon  the  property  as  that  of  the  mort- 
gagor, either  by  estoppel  or  waiver,  where 
by  statute  the  equity  of  redemption  is  sub- 
ject to  levy  and  sale  under  execution.  Ex 
parte  Logan,  51:  1068,  64  So.  570,  185  Ala. 
525.  ( Annotated ) 

56.  The  lien  of  a  chattel  mortgage  is  not 
has  expired  as  to  th^  first  lien  without  such  "  waived  by  levying  an  attachment  against 
Digest  1-52  I<.R.A.(N.S.)                             30 


466 


CHATl'EL  MORTGAGE,  VI.— CHAUFFEUR. 


the  mortgaged  property  where  the  mortgage 
does  not  convey  the  legal  title,  and  the 
attachment  suit  is  dismissed  without  trial. 
Stein  V.  McAuley,  27:  692,  125  N.  W.  336, 
147  Iowa,  630. 

57.  The  lien  of  a  chattel  mortgage  is  de- 
stroyed by  the  attaching  of  the  property 
by  the  mortgagee.  Johnson  v.  Jones,  48: 
547,  135  Pac.  12,  39  Okla.  323. 

VI.  Enforcement. 

(See  also   same  heading  in  Digest   L.R.A. 
1-10.) 

Defense   to   enforcement   of,   who   may    set 

up,  see  Action  or  Suit,  44. 
Estoppel  to  foreclose,  see  Estoppel,  201. 

58.  A  statute  requiring  the  filing  of  an 
aflBdavit  of  the  proceedings  when  property  is 
taken  and  sold  under  a  chattel  mortgage 
does  not  apply  where  the  sale  is  with  the 
consent  of  the  mortgagor.  Lierman  v. 
O'Hara,  44:  1153,  140  N.  W.  1057,  153  Wis. 
140. 

59.  Allowing  a  desk  to  remain  in  an  ele- 
vator at  the  time  a  chattel  mortgage  there- 
on is  foreclosed  and  the  property  sold  un- 
der the  mortgage  does  not  pass  the  title  to 
the  purchaser  at  the  sale.  Dixson  v.  Ladd, 
46:  206,  142  N.  W.  259,  32  S.  D.  163. 

60.  A  sale  of  mortgaged  chattels  by  the 
mortgagee  under  a  power  of  sale  contained 
in  the  mortgage,  in  pursuance  of  an  adver- 
tisement for  sale  duly  made,  is  void  and 
ineffectual  to  pass  title  to  the  purchaser, 
where  it  is  at  the  time  held  by  virtue  of  a 
seizure  under  an  execution  levied  thereon 
by  a  third  person.  Fulghum  v.  J.  P.  Wil- 
liams Co.  i:  1055,  40  S.  E.  695,  114  Ga.  643. 

(Annotated) 

61.  A  purchaser  at  foreclosure  sale,  for 
full  value,  of  chattel -mortgaged  property  of 
which  the  mortgagee  took  possession  in 
good  faith,  acquires  a  good  title;  and  the 
creditors  of  the  mortgagor  cannot  pursue 
the  property  in  his  hands,  although  as  to 
them  the  mortgage  was  fraudulent  and  void. 
Madson  v.  Rutten,  13:  554,  113  N.  W.  872, 
16  N.  D.  281. 

62.  That  a  purchaser  at  a  mortgagee's 
sale  leaves  the  property  in  possession  of 
the  mortgagor  does  not  render  the  sale 
void  as  matter  of  law  under  a  statute  pro- 
viding that,  if,  in  transfer  of  personal  prop- 
erty, no  delivery  is  made,  followed  by  pos- 
session by  the  purchaser,  the  transfer  shall 
be  presumed  to  be  fraudulent  and  there- 
fore void.  Taylor  v.  Wooden,  36:  ioi8,  118 
Pac.  372,  30  Okla.  6.  (Annotated) 

63.  The  fact  that  a  mortgaged  chattel 
is  temporarily  out  of  the  state  when  a  for- 
feiture is  declared  and  proceedings  for 
strict  foreclosure  instituted  does  not  pre- 
vent the  title  from  passing  to  the  mort- 
gagee,  which  he  can  assert  against  subse- 
quent attachments  of  the  property  in  the 
state  where  the  property  is  found  as  that 
of  the  mortgagor.  North  Carolina  Land  & 
Lumber  Co.  v.  Boyer,  39:  627,  191  Fed.  552, 
112  C.  C.  A.  162.  (Annotated) 
Digest  1-52  ]1R.A.(N.S.) 


Power  of  sale. 

04.  The  mortgagee  of  shares  has,  in  the 
absence  of  an  express  power  of  sale,  an  im- 
plied power  to  sell  the  shares  on  default  by 
the  mortgagor  in  payment  of  the  amount 
due  at  the  time  appointed  for  payment,  or, 
if  no  time  be  fixed,  then  on  the  expiration 
of  a  reasonable  notice  requiring  payment  on 
a  day  certain.  Deverges  v.  Sandeman,  3 
B.  R.  C.  902,  [1902]  1  Ch.  579.  Also  Re- 
ported in  71  L.  J.  Ch.  N.  S.  328,  50  Week. 
Rep.  404,  80  L.  T.  N.  S.  269,  18  Times  L. 
R.  375.  (Annotated) 

65.  A  month's  notice  requiring  payment 
on  a  day  certain  of  an  indebtedness  for 
which  no  time  of  payment  has  been  agreed 
upon,  or  even  less  time,  may  be  a  reasonable 
notice  which  will  entitle  a  mortgagee  of  per- 
sonalty to  exercise  a  power  of  sale.  De- 
verges  V.  Sandeman,  3  B.  R.  C.  902,  [1902] 
1  Ch.  579.  Also  Reported  in  71  L.  J.  Ch. 
X.  S.  328,  50  Week.  Rep.  404,  86  L.  T.  N. 
S.  269,  18  Times  L.  R.  375. 

66.  Sections  19  and  20  of  the  conveyanc- 
ing act  1881,  which  define  the  powers  of  a 
mortgagee,  whether  of  realty  or  personalty, 
and  provide  that  a  power  of  sale  is  not  to 
be  exercised  until  notice  requiring  payment 
has  been  served  upon  the  mortgagor,  and 
default  is  made  for  three  months  after  serv- 
ice, do  not  affect  the  power  of  sale  which  is 
implied  in  the  case  of  a  mortgage  of  shares 
not  made  by  deed.  Deverges  v.  Sandeman, 
3  B.  R.  C.  902,  [1902]  1  Ch.  579.  Also  Re- 
ported in  71  L.  J.  Ch.  N.  S.  328,  50  Week. 
Rep.  404,  80  L.  T.  N.  S.  269,  18  Times  L. 
R.  375. 


CHATTELS. 


Mortgage  on,  see  Chattel  Mobtgage, 
Lien  on,  see  Liens. 
Sale  of,  see  Sale. 

Creation  by  will  of  executory  interest  in, 
see  Wills,  305. 


CHATTELS   REAL. 

Taxation  of,  see  Constitutional  Law,  223 ; 

Statutes,  221;  Taxes,  26,  61,  62. 
Oil  and  gas  lease  as,  see  Mines,  51,. 


CHAUFFEUR. 


Negligence  of  generally,   see  Automobiles, 

II. 
Admissibility  of  statements  and  conduct  of, 

at  time  of  accident,  see  Evidence,  1412, 

1413. 
Evidence   in   prosecution   of,   for   homicide, 

see  Evidence,  1665. 
Libel  in  report  of  killing  by,  see  Libel  and 

Slandee,  35 j  96. 
Who  is  master  of  negligent  chauffeur,  see 

Master  and  Servant,  36,  45-58. 


CHEATING— CHECKS. 


467 


As    fellow    servant    of    person    injured,    see 
Master  and  Servant,  788. 
i         As  independent  contractor,  see  Master  and 
f  "  Servant,  1031. 


CHEATING. 


By    means    of    false    pretenses,    see    False 
Pretenses, 


CHECK    ROOM. 


Loss  sf  passenger's  property  while  in  rail- 
road check  room,  see  Carriers,  688- 
«93,  732. 


CHECKS. 

7.  In  general;  nature  of,    1—S. 
II.  Presentation,   9—29. 
III.  Certification,    30-40. 
IV.  Bona  fide  holders,   41—52. 
V.  Forged    paper,    53— oo. 

Accord  and  satisfaction  by,  see  Accord  and 

Satistaction,  10-20. 
Recovery    from    payee    where    by    mistake 

check   is   paid  for  larger   amount  than 

that  called  for,  see  Assumpsit,  12. 
Assumpsit   for   amount  of   clieck   issued  by 

mistake,  see  Assumpsit,  46. 
Guaranty  of,  by  bank,  see  Banks,  193-195. 
As   to   duties   and  liabilities   of   bank   with 

respect  to  payment  of,  see  Banks,  IV. 

a,  3. 
Collection  of,  see  Banks,  IV.  b. 
Collecting    bank    accepting    check    in    pay- 
ment, see  Banks,  155,  177,  181. 
Protest  of,   see  Bills  and  Notes,  65,   66, 

111,  112. 
Presumption    of    acceptance    of,    see    Bills 

and  Notes,  65,  66. 
Liability    of    indorser    of,    see    Bills    and 

Notes,  76. 
Law  governing  validity  of,  see  Conflict  of 

Laws,  I.  b,  2. 
Consideration  for,  see  Contracts,  66. 
Rights  of  "one  who  indorses  check  of  owner 

»f  stolen  property  to  secure  its  return, 

see  Contracts,  432. 
Given   for   purpose   of   obtaining   money  to 

gamble,    see    Contracts,    589;    Trial, 

304. 
Embezzlement  of,  see  Embezzlement,  1,  9; 

Indictment,    etc.,    98. 
Estoppel  of  bank  to  deny  right  to  pay  check 

to  bona  fide  purchaser,   see  Estoppel, 

89. 
Estoppel  of  payee  who  has  commenced  ac- 
tion   against    drawer,    to    intervene    in, 

action  by  other  creditor  of  drawer,  see  | 
Estoppel,   218. 
Digest  1-52  Ii.R.A.(N.S.) 


Authority  of  agent  to  indorse,  see  Evidence, 
173;    Principal  and  Agent,  55. 

Payment  by,  see  Evidence,  636,  637,  1922; 
Mortgages,  148,  170;   Payment,  7-15. 

Evidence  on  question  whether  check  was 
tendered  in  settlement  of  disputed 
claim,  see  Evidence,  807. 

Admissibility  in  evidence  of  memoranda 
on  stub  of,  see  Evidence,  842. 

Parol  evidence  of  consideration  for,  see 
Evidence,   1005. 

Evidence  to  establish  husband's  authority 
to  sign  checks  for  wife,  see  Evidence, 
1520. 

Evidence  as  to  person  to  whom  maker  of 
forged  check  intended  that  money 
should  be  paid,  see  Evidence,  1621. 

Laches  by  owner  of  check  in  making  de- 
mand for  proceeds  on  one  who  cashed  it 
wrongfully,  see  Evidence,  1757;  Limi- 
tation of  Actions,  53. 

Evidence  in  prosecution  for  giving  check 
with  intent  to  defraud,  see  Evidence, 
1884. 

Admissibility  under  pleadings  of  evidence 
in   action  on,   see  Evidence,  2453. 

Admissibility  in  evidence,  see  Evidence, 
IV.  m. 

Obtaining  money  or  property  by  means  of, 
as  false  pretense,  see  Evidence,  2415; 
False  Pretenses,  10-14,  20. 

As  false  token,  see  False  Pretenses,  20. 

Drawing  postdated  check  with  knowledge 
that  there  are  no  funds  to  meet  it,  see 
Fraud   and   Deceit,   64. 

Giving  false  check  in  payment  of  purchase 
price  of  property,  see  Fraud  and  De- 
ceit, 66. 

Priority  as  between  garnishing  creditor 
and  holder  of  check,  see  Gabnishment, 
51. 

Gift  of,  see  Gift,  9,  17,  18,  23. 

Larceny  of,  see  Larceny,  7,  20,  40. 

Giving  of,  as  acknowledgnient  of  debt  to 
toll  statute  of  limitations,  see  Limi- 
tation OF   Actions,  343. 

Tender  of  check  as  redemption  from  mort- 
gage, see  Mortgage,  148,  170. 

Effect  of  assignment  on  right  of  action  on, 
see  Parties,   101,    102. 

Powers  of  agent  as  to,  see  Principal  and 
Agent,   55-59. 

Stopping  payment  of,  as  rescission  of  sale, 
see   Sale,   189. 

Effect  of  taking  worthless  check  in  payment 
of  goods  sold,  see  Sale,  228,  231,  234. 

Right  of  depositor  receiving  draft  in  pay- 
ment of  his  check  on  insolvent  bank, 
see    Subrogation,    4. 

Validity  of  check  given  on  Sunday,  see 
Sunday,  21. 

Delivery  of,  on  Sunday,  see  Sunday,  29; 
Trial,   846. 

Taxation  of  checks  drawn  by  United  States 
Treasurer,   see   Taxes,   1. 

Tender  by,  see  Tender,  14. 

SuflSciency  of  finding  as  to  ownership  of,  see 
Trial,  1127. 

Trover   for,  see  Trover,   10,   18. 

Coversion  by  inducing  incompetent  person 
to  draw  check,  see  Trover,  19. 


468 


CHECKS,  I.,  II. 


7.  In  general;  nature  of. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

1.  The  provisions  of  the  negotiable-in- 
struments act  prescribing  the  nature  of  the 
implied  liability  in  negotiating  an  instru- 
ment by  delivery  has  no  application  to  the 
delivery  by  a  lender  of  a  cashier's  clieck  to 
transfer  the  money  loaned  to  the  borrower. 
Dille  V.  White,  lo:  510,  109  N.  W.  909,  132 
Iowa,  327. 

2.  A  bank  check  is  an  instrument  by 
which  a  depositor  seeks  to  withdraw  funds 
from  a  bank,  and,  as  between  the  drawer 
and  the  payee,  it  is  an  evidence  of  indebted- 
ness, and,  in  commercial  transactions,  as 
w«»ll  as  in  law,  it  is  equivalent  to  the  draw- 
er's promise  to  pay;  and  an  action  may  be 
brought  thereon,  as  upon  a  promissory  note. 
Camas  Prairie  State  Bank  v.  Newman,  21: 
703,  99  Pac.  833,  15  Idaho,  719.  (Annotated) 

3.  The  payee  of  a  bank  check  may 
maintain  an  action  against  the  drawer  to 
recover  the  debt  evidenced  by  such  check, 
upon  the  drawee  refusing  to  pay  the  same. 
Camas  Prairie  State  Bank  v.  Newman,  21: 
703,  99  Pac.  S33,  15  Idaho,  719. 

4.  That  a  bank  to  which  a  check  has 
been  indorsed  by  one  who  deposited  it  may 
have  the  right  to  charge  the  check  to  the 
depositor's  account,  if  it  should  be  dis- 
honored after  due  diligence  has  been  exer- 
cised to  collect  it,  does  not  affect  the  char- 
acter of  the  transfer,  or  render  the  bank  any 
the  less  the  owner  of  the  check.  Noble  v. 
Doughten,  3:  1167,  83  Pac.  1048,  72  Kan. 
336. 

5.  If  a  bank,  holding  title  to  a  check 
which  has  been  indorsed  to  and  deposited 
with  it,  indorse  it  to  the  order  of  its  cor- 
respo.dent  in  the  city  where  the  drawee 
bank  is  located,  \vith  a  guaranty  of  the  pre- 
vious indorsement,  and  forward  it  with  a  de- 
posit slip  attached  for  credit  as  a  deposit  to 
such  correspondent,  v.  ho  accepts  it  on  the 
terms  proposed  by  the  indorsement  and  the 
deposit  slip,  and  undertakes  to  collect  it,  the 
title  to  the  check,  no  further  facts  appear- 
ing, vests  in  the  second  indorsee.  Noble  v. 
Doughten,  3:  1167,  83  Pac.  1048,  72  Kan. 
336. 

6.  If  the  payee  of  a  check  drawn  on  a 
bank  in  a  city  other  than  that  of  his  resi- 
dence indorse  it  and  deposit  it  in  his  home 
bank  in  the  usual  and  ordinary  manner,  and 
without  any  agreement  or  understanding  in 
reference  to  the  transaction  other  than  such 
as  the  law  implies,  the  check  becomes  the 
property  of  the  indorsee.  Noble  v.  Dough- 
ten, 3:  1 167,  83  Pac.  1048,  72  Kan.  336. 

7.  Where  a  depositor  issues  a  check 
against  his  general  account  on  deposit  at  a 
bank,  such  check  is  not  an  equitable  assign- 
ment of  the  fund  standing  to  his  credit  in 
the  bank,  notwithstanding  the  fact  that  he 
made  the  deposit  for  the  purpose  of  pay- 
ing such  check,  and  a  garnishment  of  the 
bank  in  a  suit  against  him  before  such  check 
is  presented  creates  a  lien  on  the  deposit 
superior  to  the  right  of  the  payee  of  the 
Digest  1-52  I1R.A.(NJ3.> 


check.       Kaesemeyer  v.  Smith,  43:100,  123 
Pac.  943,  22  Idaho,  1.  (Annotated) 

Action,    on    lost    check. 

Who  may   sue  on   lost  check,  see  Pabties, 
101,  102. 

8.  A  suit  in  equity  will  lie  to  recover 
upon  a  lost  check;  and  the  court,  in  de- 
creeing a  recovery,  may  protect  defendant 
by  a  suitable  provision  for  indemnity.  Smith 
v.  Nelson,  24:  644,  65  S.  E.  201,  83  S.  E.  294. 

//.  Presentation. 

(See   also    same   heading    in   Digest   L.R.A. 
1-10.) 

9.  The  drawer  of  a  check  sent  to  a  dis- 
tant place  to  be  forwarded  for  presentation, 
by  allowing  his  funds  to  remain  in  the 
drawee  bank,  and  the  payee,  by  accepting 
the  check,  evince  belief  in  the  solvency  of 
the  bank,  and  the  former  voluntarily  takes 
the  risk  of  its  solvency  during  the  reasona- 
ble period  necessary  for  presentment  of  the 
check  in  the  usual  manner.  Lewis,  H.  &  Co. 
V.  Montgomery  Supply  Co.  4:  132,  52  S.  K 
1017,  59  W.  Va.  75. 

10.  The  parties  to  a  check  drawn  on  a 
bank  and  sent  to  a  distant  place  to  be  for- 
warded for  presentation  are  deemed  in  law 
to  have  acted  with  ...nowledge  ot  the  usual 
diligent  method  of  making  such  presentment 
through  a  bank  at  the  place  to  which  it  is 
sent,  and  to  have  agreed  to  sutfer  any  rea- 
sonable delay  incident  to  such  mode  of  pre- 
sentment. Lewis,  H.  &  Co.  v.  Montgomery 
Supply  Co.  4:  132,  52  S.  E.  1017,  59  W.  Va. 
75. 

11.  The  drawer,  in  delivering  a  check  to 
an  agent  of  the  payee,  having  no  authority 
to  indorse  it,  at  the  place  of  business  of  the 
drawer,  impliedly  agrees  to  allow  such  addi- 
tional time  for  presentment  as  may  be 
necessary  for  the  transmission  of  the  check 
to  the  principal  of  the  agent.  Lewis,  H.  & 
Co.  v.  Montgomery  Supply  Co.  4:  132,  52 
S.  E.  1017,  59  W.  Va.  75. 

12.  The  transfer  of  a  check  to  successive 
holders  will  not  extend  the  time  for  pre- 
sentment, where  it  is  drawn  and  delivered 
in  the  place  where  the  drawee  is  located. 
Gordon  v.  Levine,  10:  1153,  80  N.  E.  505,  194 
Mass.  418.  (Annotated) 
What  is  a  reasonable  time  for. 
Question  for  jury  as  to,  see  Trial,  208,  209. 

13.  If  the  payee  of  the  check  and  the 
drawee  reside,  or  have  their  places  of  busi- 
ness, in  the  same  city  or  town,  presentment 
must  be  made  before  the  expiration  of  busi- 
ness hours  of  the  day  next  after  the  day  of 
the  receipt  thereof.  Lewis,  H.  &  Co.  v. 
Montgomery  Supply  Co.  4:  132,  52  S.  E. 
1017,  59  W.  Va.  75. 

14.  Neither  the  payee  nor  his  agent  re- 
ceiving a  check  drawn  on  a  bank  in  another 
place  is  required  to  transmit  it  by  the  only, 
or  last,  mail  of  the  day  next  after  its  re- 
ceipt, if  such  mail  closes  or  departs  at  an 
hour  so  early  as  to  render  it  inconvenient 
for  the  holder  to  avail  himself  of  it.  I>'wis, 
H.  &  Co.  V.  Montgomery  Supply  Co.  4:  132, 
52  S.  E.  1017,  59  W.  Va.  76.        (Annotated) 

r-:  A.  AH.J    Sr-  I    i^o-yiO. 


CHECKS,  II. 


469 


15.  If  the  person  receiving  a  check  and 
the  bank  on  which  it  is  drawn  are  in  differ- 
ent places,  it  must  be  forwarded,  for  pre- 
sentment, by  mail  or  other  usual  mode  of 
transmission,  on  the  next  day  after  the  re- 
ceipt thereof  at  the  place  in  which  the  payee 
resides  or  does  business,  if  reasonably  and 
conveniently  practicable;  and,  if  it  is  not 
so  practicable,  then  by  the  next  mail,  or 
other  similar  means  of  conveyance,  leaving 
after  said  date.  Lewis,  H.  &  Co.  v.  Mont- 
gomery Supply  Co.  4:  132,  52  S.  E.  1017, 
59  W.  Va.  75. 

Necessity  of. 

16.  The  payee  of  a  check,  in  the  absence 
of  any  agreement  to  the  contrary,  and  of 
any  circumstances  known  to  him,  making  it 
imprudent  to  do  so,  may  indorse  and  deliver 
the  check  to  a  bank  for  collection,  and 
while  this  does  not  extend  the  time  within 
which  it  must  be  forwarded  for  present- 
ment, yet  the  bank  is  not  required  to  for- 
ward it  on  the  next  day  after  its  receipt 
by  the  payee,  if  there  be  no  reasonably 
convenient  means  of  doing  so,  within  the 
banking  hours  of  that  day.  Lewis,  H. 
&  Co.  V.  Montgomery  Supply  Co.  4:  132, 
62  S.  E.  1017,  59  W.  Va.  75. 

17.  Failure  to  a  present  a  check  in  due 
course  for  payment  will  discharge  the  in- 
dorser  even  though  such  presentment  would 
have  been  unavailing,  in  the  absence  of  af- 
firmative proof  that  he  knew  when  he  passed 
the  check  that  there  would  be  no  funds  in 
the  bank  to  meet  it.  Start  v.  Tupper,  15: 
213,  69  Atl.  151,  81  Vt.  19.  (Annotated) 

18.  The  holder  of  a  bank  check  is  re- 
lieved from  the  duty  imposed  upon  him  by 
law,  of  presenting  the  check  for  payment  as 
an  essential  preliminary  to  a  right  of  ac- 
tion against  the  maker,  where  the  perform- 
ance of  the  duty  has  been  rendered  impos- 
sible by  the  loss  of  the  instrument  in  transit 
after  it  has  been  mailed  to  the  drawee  bank 
for  payment.  First  Nat.  Bank  v.  i\IcCon- 
nell,  14:  616,  114  N.  W.  1129,  103  Minn.  340. 

(Annotated) 

19.  The  owner  of  a  bank  cheek  which 
was  lost  without  his  fault,  before  present- 
ment to  the  bank  upon  which  it  was  drawn, 
may  recover  thereon  against  the  drawer, 
upon  filing  a  proper  indemnity  bond  as  pro- 
vided by  Minn.  Rev.  Laws  1905,  §  4718. 
First  Nat.  Bank  v.  McConnell,  14:  616,  114 
N.  W.  1129,  103  Minn.  340. 

Mode  of. 

20.  An  indorser  of  a  check  drawn  upon  a 
bank  in  another  town  is  not  released  by  the 
fact  that  the  check  was  sent  directly  to  the 
drawee  bank,  instead  of  to  an  agent  of  the 
indorsee,  for  presentation  and  demand  of 
payment,  in  the  absence  of  any  prejudice  to 
the  indorser  by  the  adoption  of  the  former 
course.  Citizens'  Bank  v.  First  Nat.  Bank, 
13:  303,  113  N.  W.  481,  135  Iowa,  605. 

21.  Negligence  in  the  presentation  of  a 
check  drawn  upon  a  bank  in  another  town, 
which  will  release  an  indorser,  cannot  be 
predicated  upon  the  mere  circumstance  that 
the  check  was  forwarded  by  mail  instead  of 
by  messenger,  even  though  the  latter  may 
have  been  the  more  expeditious  course. 
Bieest  1-52  KR.A.(N.S.)  -i  -   i 


Citizens'  Bank  v.  First  Nat.  Bank,  13:  303, 

113  N.  W.  481,  135  Iowa,  605. 

Effect  of  delay. 

Eflfect  of  delay  in  collecting  on  right  to 
charge  maker's  bank  account  in  hands 
of  assignees  for  creditors,  see  Assign- 
ment FOR   Creditoks,   16. 

Effect  of  delay  in  presenting  check  for  pur- 
chase price  to  pass  title,  see  Saijc,  186. 

Question  for  jury  as  to  effect  of  delay  in 
presenting,  see  Trial,  281. 

See  also  supra,  21. 

22.  A  person  receiving  a  check  on  a  fimd 
in  the  hands  of  a  bank,  for  tbe  amount  of  a 
demand  against  the  drawer  thereof,  is  bound 
to  exercise  reasonable  diligence  in  making 
presentment  thereof  for  payment,  if  he 
wishes  to  avoid  risk  of  loss  by  insolvency 
of  the  drawee.  Lewis,  H.  &  Co.  v.  Mont- 
gomery Supply  Co.  4:  132,  52  S.  E.  1017, 
59  W.  Va.  75. 

23.  Failure  to  present  a  check  does  not 
Isar  recovery  from  the  drawer,  if  the  time 
intervening  between  delivery  thereof  and 
the  failure  of  the  bank  is  not  sufficient  for 
presentment  by  the  exercise  of  such  dili- 
gence as  the  law  requires.  Lewis,  H.  &  Co 
V.  Montgomery  Supply  Co.  4:  132,  52  S.  E. 
1017,  59  W.  Va.  75. 

24.  The  indorsee  of  a  check,  who  mailed 
it  to  the  drawee  on  Saturday,  is  not  bound 
to  give  the  indorser  notice  of  the  fact  that 
it  was  delayed  over  Sunday  in  transmission 
at  the  railroad  station  nearest  to  the  town 
in  which  the  drawee  did  business.  Citizens' 
Bank  v.  First  Nat.  Bank,  13:  303,  113  N.  W. 
481,  135  Iowa,  605. 

25.  The  indorser  of  a  check  mailed  in  due 
course  to  the  drawee  is  not  released  because 
it  remained  in  the  postoffice  of  the  town  in 
which  the  drawee  did  business  from  Mon- 
day afternoon  until  the  following  Tues- 
day morning,  at  which  time  it  was  deliv- 
ered and  promptly  presented  for  payment 
and  protested  for  nonpayment,  since  pro- 
test on  Tuesday  would  have  been  suffi- 
cient, even  if  the  check  had  been  delivered  on 
Monday.  Citizens'  Bank  v.  First  Nat.  Bank, 
13:  303,  113  N.  W.  481,  135  Iowa,  605. 

26.  Failure  to  present  a  check  for  pay- 
ment will  not,  until  the  xpiration  of  the 
limitation  period,  relieve  the  drawer  from 
liability  thereon,  unless  he  shows  that  he 
has  suffered  loss  through  the  failure. 
Eosenbaum  v.  Hazard,  38:  255,  82  Atl.  62, 
233  Pa.  206.  (Annotated) 
Delay    in   presenting    check    taken    in 

payment   of   other   check. 
By    collecting   bank    taking    check    in    pay- 
ment, see  Banks,   177. 

27.  A  local  custom  of  banks  to  take  up 
checks  drawn  upon  them  by  their  depositors 
with  their  own  checks  on  other  banks  will 

,  not  excuse  holders  from  exercising  tlie  ut- 
most diligence  in  collecting  the  substituted 
checks.  Noble  v.  Doughten,  3:  1167,  83 
Pac.  1048,  72  Kan.  336.  (Annotated) 

28.  No  diligence  in  collecting  a  clicck  is 
shown,  where  a  bank  to  which  it  had  been 
indorsed  presented  it  and  accepted  from  the 
drawee  bank,  before  noon  of  a  business  day 
closing  at  3  p.  M.,  a  substituted  check,  which. 


470 


CHECKS,  III.,  IV. 


could  have  been  collected  within  twenty  min- 
utes, but  which  was  held  until  the  following 
day,  when  an  attempt  was  made  to  collect 
it  through  the  clearing  house,  where  it  was 
thrown  out  because  of  tlie  failure  of  the 
drawer  at  2:45  P.  M.  of  that  day.  Noble 
V.  Doughten,  3:  1167,  83  Pac.  1048,  72  Kan. 
336. 
Necessity  of  notice  of  nonpayment. 

29.  The  statement  of  the  cashier  of  a 
bank  on  which  a  check  was  drawn  that  it 
would  be  paid  if  the  drawer  had  sufficient 
balance  to  his  credit  at  the  time  of  its  pres- 
entation, otherwise  it  would  be  refused, 
made  in  response  to  the  statement  of  the 
cashier  of  an  indorsee  bank  that  the  check 
had  been  mailed  and  his  question  whether  it 
would  be  honored  on  its  arrival,  does  not 
amount  to  a  dishonor  of  the  check,  which 
will  make  it  incumbent  upon  the  indorsee 
to  give  the  indorser  immediate  notice  there- 
of in  order  to  hold  the  latter.  Citizens' 
Bank  v.  First  Nat.  Bank,  13:  303,  113  N.  W. 
481,  135  Iowa,  605.       ^  (Annotated) 

///.  Certification. 

(See  also  same  heading  in  Digest  L.R.A. 
1-tO.) 

Procuring  certification  of  check  as  accept- 
ance, see  Accord  and  Satisfaction, 
13. 

Effect  of  depositing  certified  check  as  a 
payment,  see  Mines,   81. 

30.  The  certificate  by  a  bank  that  a  check 
is  good  is  equivalent  to  acceptance,  and 
raises  an  implication  that  it  is  drawn  upon 
sufficient  funds  in  the  hands  of  the  drawee, 
that  they  have  been  set  apart  for  its  sat- 
isfaction, and  that  they  shall  be  so  appliad 
whenever  the  check  is  presented  for  pay- 
ment. Blake  v.  Hamilton  Dime  Sav.  Bank, 
20:  290,  87  N.  E.  73,  79  Ohio  St.  189. 

31.  Under  the  negotiable  instrument  law, 
the  oral  assurance  by  a  bank  to  one  who  is 
about  to  purchase  a  check  drawn  upon  it, 
that  the  check  is  good,  does  not  render  the 
bank  liable  to  such  person  upon  its  subse- 
quent refusal  to  pay  the  check  when  pre- 
sented. Ballen  v.  Kremlin  Bank,  44:  621, 
130  Pac.  539,  37  Okla.  112. 

Rights  and  liabilities  of  drawee. 

32.  The  transfer  of  a  certified  check  is  an 
assignment  of  money  to  meet  it;  and  the 
bank  making  the  certification  is  liable  there- 
for to  the  holder.  Blake  v.  Hamilton  Dime 
Sav.  Bank,  20:  290,  87  N.  E.  73,  79  Ohio  St. 
189. 

33.  A  bank  which  has  certified  a  check 
upon  it  cannot,  in  the  absence  of  mistake, 
repudiate  the  certification  after  the  payee 
has  parted  with  value  upon  the  faith  of  it. 
First  Nat.  Bank  v.  Currie,  9:  698,  110  N.  W. 
499,  147  Mich.  72. 

34.  A  bank  is  not  estopped  by  its  cer- 
tification of  a  check  so  drawn  as  readily  to 
permit  of  alteration,  from  asserting,  as 
against  an  innocent  holder  for  value,  that 
the  check  has  been  fraudulently  altered  after 
certification.  Imperial  Bank  v.  Bank  of 
Hamilton,  4  B.  R.  C.  578,  [1903]  A.  C.  49. 
Digest  1-52  L.R.A.(N.S.) 


Also  Reported  in  72  L.  J.  P.  C.  N.  S.  1,. 
51  Week.  Rep.  289,  87  L.  T.  N.  S.  457,  1» 
Times  L.   R.   56.  (Annotated)    . 

35.  No  negligence  is  imputable  to  a  bank 
in  cashing  a  ceitified  check  without  examin- 
ing the  drawer's  account,  so  as  to  impose 
upon  it  the  loss  arising  from  the  fraudulent 
alteration  of  the  check  after  certification. 
Imperial  Bank  v.  Bank  of  Hamilton,  4  B.  R.^ 
C.  578,  [1903]  A.  C.  49.  Also  Reported  in 
72  L.  J.  P.  C.  N.  S.  1,  51  Week.  Rep.  289, 
87  L.  T.  N.  S.  457,  19  Times  L.  R.  56. 

36.  The  rule  that  notice  of  dishonor  of 
a  bill  of  exchange  must  be  given  on  the  due 
date  does  not  preclude  a  bank  which  haa 
cashed  a  check  certified  by  it,  and  subse- 
quently raised,  from  suing  to  recover  the  dif- 
ference between  the  two  amounts,  where  no- 
tice of  the  mistake  has  been  given  in  reason- 
able time,  and  no  loss  has  been  occasioned 
by  the  delay.  Imperial  Bank  v.  Bank  of 
Hamilton,  4  B.  R.  C.  578,  [1903]  A.  C.  49. 
Also  Reported  in  72  L.  J.  P.  C.  N.  S.  1, 
51  Week.  Rep.  289,  87  L.  T.  N.  S.  457,  1» 
Times  L.  R.  56. 

Effect    of,    on    liability    of    draxirer    or 
indorser. 

37.  Procuring  the  certification  of  a  check 
releases  the  liability  of  drawer  and  indorser 
thereon,  even  though  the  drawer  has  no  f  und» 
on  deposit  and  the  drawee  is  insolvent,  if 
the  latter  fact  was  not  known  or  suspected 
at  the  time.  First  Nat.  Bank  v.  Currie, 
9:  698,  110  N.  W.  499,  147  Mich.  72. 

38.  The  drawer  or  indorser  of  a  certified 
check  cannot,  after  its  delivery,  revoke  it  or 
stop  payment  upon  it  by  notice  to  the  drawee 
not  to  pay;  and  a  bank  that  has  received 
a  certified  check  for  deposit,  and  has  credit- 
ed the  depositor  with  the  amount  of  it,  is 
a  bona  fide  holder,  and  may  enforce  pay- 
ment of  it,  notwithstanding  it  may,  before 
payment  to  the  depositor,  have  received  no- 
tice that  the  check  was  fraudulently  ob- 
tained by  the  depositor.  Blake  v.  Hamilton 
Dime  Sav.  Bank,  20:  290,  87  N.  E.  73,  79 
Ohio  St.  189.  (Annotated) 

39.  Consent  by  the  indorser  of  a  clieck, 
after  his  liability  has  been  discharged  by 
the  payee's  procuring  its  certification,  that 
the  time  for  its  payment  may  be  extended, 
does  not  create  a  liability  by  him  in  case 
the  drawee  subsequently  refuses  payment. 
First  Nat.  Bank  y.  Currie,  9:  698,  110  N.  W. 
499,  147  Mich.  72. 

40.  That  a  check  is  presented  for  pay- 
ment and  notice  of  protest  given  the  in- 
dorser in  due  time  do  not  prevent  the  prior 
act  of  the  payee  in  securing  its  certification 
from  releasing  the  liability  of  the  indorser, 
where  the  holder  parted  with  value  on  the 
strength  of  the  certification,  and  not  in  re- 
liance on  the  indorsement.  First  Nat.  Bank 
V.  Currie,  9:  698,  110  N.  W.  499,  147  Mich. 
72.  (Annotated) 

IV.  Bona  fide  holders. 

(See   also   same   heading   in  Digest  L.R.A. 

1-10.) 

Rights  of  bona  fide  holder  of  forged  checks, 
see  Banks,  114,  183..,   i.c-i.  Je^^ivl 


CHECKS.  V. 


471 


Of  bills  or  notes,  see  Bills  and  Notes,  V. 
a,  2,  V.  b. 


'Who  are. 

Of  bills  and  notes,   see  Bills  and  Notes, 

V.  b. 
Sufficiency  of  pleading  to  show  bona  fides  of 

purchase,  see  Pleading,  249. 
Question  for  jury  as  to,  see  Trial,  305. 

41.  Giving  his  own  check  in  exchange  for 
that  of  a  third  person  constitutes  one  a 
holder  of  it  for  value;  and  such  position  is 
not  lost  by  the  fact  that  payment  of  the 
stranger's  check  is  refused  before  his  own 
has  been  negotiated  or  presented  for  pay- 
ment. Matlock  V.  Scheuerman,  17:  747,  \)3 
Pac.  823,  51  Or.  49.  (Annotated) 

42.  Notice  of  infirmity  in  the  contract  is 
not  given  to  the  purchaser  of  a  clieck  by  a 
statement  of  the  indorser  that  the  maker 
had  requested  him  to  wait  two  or  three 
days  beiore  presenting  it  for  payment.  Mat- 
lock V.  Scheuerman,  17:  747,  1)3  Pac.  823,  51 
Or.  49. 

43.  A  check  negotiated  at  noon  on  the 
day  following  its  date  is  not  overdue  so  as 
to  carry  notice  of  its  illegality  or  previous 
dishonor,  althougli  made  and  negotiated  in 
the  town  in  which  the  drawee  is  located. 
Matlock  V.  Scheuerman,  17:  747,  93  Pac.  823, 
61  Or.  49. 

44.  The  bona  fides  of  one  purchasing  a 
cheek  is  not  destroyed  by  the  fact  that  he 
knows  there  are  no  funds  on  deposit  to 
meet  it.  Johnson  v.  Harrison,  39:  1207,  97 
N.  E.  930,  177  Ind.  240.  (Annotated) 

45.  That  one  takes  an  overdue  check 
from  the  payee  does  not,  in  the  absence  of 
other  suspicious  circumstances,  subject  him 
to  equitable  defense  in  an  action  against 
the  drawer.  Johnsun  v.  Harrison,  39:  1207, 
97  N.  E.  930,  177  Ind.  240. 

46.  One  who  takes  from  a  payee,  who 
indorses  the  instrument,  a  check  with  the 
understanding  that  he  is  to  lend  money  to 
the  drawer,  with  the  check  as  security,  is  a 
first  holder,  and  not  entitled  to  the  rights 
of  a  bona  fide  indorsee,  and  cannot  use  any 
part  of  the  proceeds  in  satisfaction  of  hia 
claim  against  the  indorser.  Johnson  v. 
Harrison,  39:  1207,  97  N.  E.  930,  177  Ind. 
240. 

47.  That  the  one  attempting  to  raise  a 
loan  on  a  check  for  tlie  benefit  of  its  mak- 
er is  willing  to  have  a  material  portion  of 
the  proceeds  applied  on  his  own  debt  to  the 
one  to  whom  the  paper  is  offered  charges 
the  latter  with  the  duty  of  inquiring  from 
the  maker  as  to  the  facts  of  the  transac- 
tion, and  he  can  gain  no  rights  in  excess  of 
the  authority  actually  conferred  on  the 
agent.  Johnson  v.  Harrison,  39:  1207,  97 
N.  E.  930,  177  Ind.  240. 

Rights    of. 

Bona  fide  holder  of  certified  checfc,  see 
supra,  34. 

Of  purchaser  of  bill  or  note,  see  Bills  and 
Notes,  V.  a,  2. 

Liability  of  partnership  on  check  drawn  by 
member  without  authority,  see  Part- 
nership, 21. 

See  also  infra,  53;  Banks,  183. 

Digest  1-52  KB.A.(N.S.) 


48.  One  who,  without  notice  of  the  in- 
validity of  the  check  of  a  third  person,  has 
given  his  own  check  to  the  payee  in  ex- 
change for  it,  is  not  bound  to  stop  payment 
of  his  own  check  in  case  payment  of  the 
stranger's  check  is  refused  because  of  such 
invalidity.  Matlock  v.  Scheuerman,  17:  747, 
93  Pac.  823,  51  Or.  49. 

49.  A  bona  fide  holder  for  value  of  a 
check  given  for  a  gambling  debt,  which  is 
dishonored  upon  presentation  for  payment, 
is  not  bound  to  pursue  the  indorser  for  the 
protection  of  the  maker,  because  of  the  orig- 
inal invalidity  of  the  check.  Matlock  v. 
Scheuerman,  17:  747,  93  Pac.  823,  51  Or.  49. 

50.  The  payee  in  good  faith  of  a  bank 
check  payment  of  which  is  refused  by  the 
drawee  may  look  to  the  drawer  thereof  for 
its  collection,  and  is  not  required  to  apply 
money  in  its  hands  on  deposit  in  the  name 
of  an  indorser  in  payment  of  such  check, 
although  payee  learns,  after  payment,  that 
the  money  was  to  be  used  for  an  unlawful 
purpose,  since  the  liability  of  the  drawer 
to  the  payee  must  be  determined  from  the 
conditions  as  they  existed  at  the  time  of 
such  payment.  Camas  Prairie  State  Bank 
v.  Newman,  21 :  703,  99  Pac.  833,  15  Idaho, 
719. 

51.  One  who  draws  a  check  and  places  it 
in  possession  of  another  assumes,  as  against 
a  bona  fide  purchaser,  the  risk  of  its  being 
diverted  from  the  purpose  for  which  it  was 
executed.  Johnson  v.  Harrison,  39:  1207,  97 
N.  E.  930,  177  Ind.  240. 

Transferee   of  bona  fide  holder. 

52.  Where  a  bank  pays  a  cheek  drawn 
upon  another  bank  to  an  agent  of  the  payee 
therein  named,  who  is  not  authorized  to  re- 
ceive the  money,  but,  as  to  the  paying  bank, 
the  agent's  principal  is  estopped  from  deny- 
ing the  authority  of  the  agent,  by  reason  of 
which  the  paying  bank  acquires  a  valid 
bona  fide  title  to  the  check,  its  title  passes 
to  the  drawee  bank  upon  its  payment  of  the 
check  through  the  clearing  house,  though 
the  facts  justifying  the  paying  bank  were 
not  known  to  the  officers  of  the  drawee  bank. 
Dispatch  Printing  Co.  v.  National  Bank  of 
Commerce,  50:  74,  124  N.  W.  236,  109  Minn. 
440.  (Annotated) 

V.  Forged  paper. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Payment  by  bank  of  forged  check,  see 
Banks,  IV.  a,  3,  b. 

Mistake  in  paying;  burden  of  proving  that 
one  who  received  amount  has  been  prej- 
udiced by  drawee's  mistake,  see  Evi- 
dence, 583. 

Forgery  by  indorsement  upon  check  of  name 
of  fictitious  person  to  whom  it  was 
made  payable,  see  Forgery,  13. 

Imputing  to  principal  knowledge  of  agent 
as  to  forgery  of,  see  Notice,  35,  36. 

Pleading  in  action  to  recover  against  drawer 
of  check  issued  to  impostor,  see  Plead- 
ing, 283. 

Proximate  caiise  of  loss  on  forged  checks^ 
see  Proximate  Cause,  157,  158. 


472 


CHEMICAL  ANALYSIS— CHOSE  IN  ACTION. 


Question  for  jury  as  to  negligence  in  cash- 
ing forged  checks,  see  Trial,  5!)2. 

53.  The  drawee  of  a  forged  check  who 
has  paid  tlie  same  may,  upon  sul)acquent 
discovery  of  the  forgery,  recover  the  money 
paid  from  the  party  who  received  it,  al- 
though tlie  latter  was  a  good-faith  holder, 
if  he  has  not  been  misled  or  prejudiced  by 
the  drawee's  failure  to  detect  tlie  forgery. 
First  Nat.  Bank  v.  Bank  of  VVyndmere, 
lo:  49,  108  N.  W.  546,  15  N.  D.  299. 

(Annotated) 

54.  A  railroad  company  which  by  mis- 
take issues  to  impostors  pay  cliecks  belong- 
ing to  employees  is  not  liable  to  pay  them 
to  one  who  casiies  them  upon  the  forged 
indorsement  of  the  impostors,  without  neg- 
ligence or  conduct  amounting  to  an  estop- 
pel on  its  part.  Simpson  v.  Denver  &  R. 
G.  R.  Co.  46:  1 164,  134  Pac.  883,  43  Utah, 
105. 

55.  The  payee  of  a  check  which  is  col- 
lected by  another  under  a  forged  indorse- 
ment cannot  be  compelled  by  a  court  of 
equity  to  relinquish  his  right  to  proceed  up- 
on his  contract  rights  against  the  drawee, 
and  pursue  his  action  of  tort  against  those 
who  are  alleged  to  have  wrongfully  received 
the  proceeds.  Ranch  v.  Fort  Dearborn  Nat. 
Bank,  11:  545,  79  N.  E.  273,  223  111.  507. 


CHEMICAL  ANALYSIS. 

Judicial  notice  as  to,  see  Evidence,  25, 

♦-•-♦ 

CHEMICALS. 

Pollution    of    waters    of    spring    by,    see 
Waters,  213. 


87- 


See  Checks. 


CHEQUE. 


CHICKEN  HOUSE. 

Indictment  for  burglary  of,  see  Indictment, 

ETC.,   94. 


CHICKENS. 


Injunction  against  trespass  by,  see  Injunc- 
tion, 196,  197, 
Breaking  of  window  by,  see  Negligence,  28. 


CHILD  LABOR. 


'i  ^fff!-.  v; 


Statute   forbidding,   or   regulating,   see  In- 
j        FANTS,  5-8;  Master  and  Sbsvant,  94- 

96,   157-177. 
Digest   1-52  L.R.A.(N,S.) 


CHILDREN. 

Evidence  of  testator's  declarations  to  show 
intent  to  disinherit,  see  Evidence,  1441. 

Employment  of,  see  Infants,  5-9;  Master 
and  Servant,  94-9(5,  147-177,  045-650, 
058,  604-069,  881,  907-910,  939,  940, 
982,  987. 

Rights  of,  in  life  insurance,  see  Insukance, 
VI.  d,  2,  b. 

Relation  between  parent  and  children  gen- 
erally, see  Pakent  and  Child. 

Revocation  of  will  by  birth  of,  see  Wills, 
50,  57. 

Legacy  to,  see  Wills,  169,  170. 

Effect  of  unexplained  omission  of,  from  will, 
see  Wills,  III.  c. 

Estate  passing  by  devise  to  one  and  his 
"heirs,"  see  Wills,  III.  g,  2,  3. 

In  general,  see  Infams. 


CHIMNEYS. 


Evidence  as  to  safety  of  chimneys  left  stand- 
ing during  demolition  of  building,  see 
Evidence,  1767. 

Injury  by  fall  of,  see  Nbxsligence,  133. 


CHINESE. 


Reference  of  case  under  Chinese  Exclusion 
Act,  see  Reference,  11. 

Right  to  bail  pending  execution  of  order  of 
deportation,  see  Bail  and  Recogni- 
zance, 11,  12, 


CHINESE  RESTAURANT. 

Statute  forbidding  presence   of   women   in, 
see  Constitutional  Law,  627a,  641. 


CHIROPRACTORS. 

Necessity  of  securing  a  license,  see  Physi- 
cians and  Surgeons,  25-27. 


CHLORINATED  LIME. 

Negligence  in  sale  of,  see  Negligence,  60. 


CHOICE. 

Of  remedy,  see  Election  of  Remedies. 


CHOSE    IN   ACTION. 

Creditors'  bill  to  reach,  see  Cbeditobs'  Bill, 
3-5,  13. 

•■• '         ••  •itn  o»'.ie  9">i 

■3  'i^  -i— £    t«»;gi<I 


CHRISTIAN  SCIENCE— CIRCUS. 


473 


Assignment  of,  by  adminisirator,  see  Execu- 
tors  AND  AdMIXISTRATORS,   51. 

Conveyance  of,  in  fraud  of  creditors,  see 
Fraudulent  Conveyances,  2-4. 

Levy  on,  see  Legislature,  7 ;  Levst  and 
Seizure,  5. 


CHRISTIAN    SCIENCE. 

Evidence  of  cures  effected  by,  see  Evidence, 
1967. 

Belief  in,  as  effecting  criminal  responsibil- 
ity for  failure  to  provide  medical  at- 
tendance for  child,  see  Infants,  12. 

Right  to  practice,  see  Physicians  and  Sur- 
geons, I.  b,  4. 


CHRISTMAS. 


Christmas  festival  as  religious  meeting,  see 
Disturbing  VVorsiiip,  3;  Ikial,  227. 


CHURCH. 


Exception  of,  in  statute  limiting  height  of 
building,  see  Constitutional  Law, 
178. 

Operation  of  railroad  trains  so  as  to  dis- 
turb religious  service  in,  as  a  taking 
of  the  church  property,  see  Eminent 
Domain,  184. 

Sale  of  intoxicating  liquors  near,  see  In- 
toxicating Liquors,  137,  182. 

Requirement  that  water  be  furnished  to, 
free  of  charge,  see  Waters,  364, 

Condition  in  will  as  to  attendance  at,  see 
Wills,  294-297. 

In  general,  see  Religious  Societies. 


CIDER. 

Forbidding  keeping  of,  for  sale,  see  Consti- 
tutional Law,  511. 

Unlawful  sale  of,  see  Intoxicating  Li- 
quors, 81,  102. 

Requiring  license  for  sale  of,  see  License, 
44,  120. 

CIGARETTES. 

Sale  of  tobacco  containing  coupon  for  ciga- 
rette paper  as  interstate  commerce,  see 
Commerce,  111. 

Right  to  hold  in  original  package,  see  Com- 
merce, 130. 
,  Ordinance  prohibiting  smoking  of,  see  Mu- 
nicipal Corporations,  212. 

1.  A  statute  making  it  unlawful  to 
keep  or  own  cigarettes  does  not  apply  to  the 
act  of  smoking  cigarettes,  or  «f  having  them 
in  possession  for  the  sole  purpose  of  smoking 
Digest   1-52  L.R.A.(N.S.) 


them, — at  least  where  the  title  states  tliat 
the  act  is  to  regulate,  and,  in  certain  cases, 
prohibit,  the  use  of  cigarettes;  and  the 
words  "keep"  and  "own"  are  preceded  by 
those  governing  the  manufacture,  sale,  and 
giving  away  of  such  articles.  State  v. 
Lowry,  4:  528,  77  N.  E.  728,  166  Ind.  372. 

2.  The  sale  by  a  retailer  of  a  sealed 
package  of  tobacco  put  up  by  the  manufac- 
turer, which  contains  a  coupon  entitling  the 
purchaser  to  cigarette  papers  when  pre- 
sented by  him  to  the  manufacturer,  will 
support  a  conviction  of  the  former  under  a 
statute  forbidding  the  sale  or  giving  way, 
directly  or  indirectly,  of  such  paper.  State 
V.  Sbragia,  23:  697,  119  N.  W.  290,  138  Wis. 
579.-    ^iv..  .M     .,.  . 


CIGARS. 

Placing  inferior  cigars  in  trade  mark  boxes 
as  legal  malice,  see  Damages,  37. 


CIGAR  STAND. 


Enjoining    police    from    stationing    officers 
near,  see  Injunction,  327. 


CINDERS. 


As  nuisance,  see  Nuisances,  31,  32,  37,  98, 
153,  195. 


hnc-A-iBl,   .V   -~ 


^  *» 


CINEMATOGRAPH. 

See  Moving  Pictures. 


«-•-♦ 

CIRCUIT    COURT   OF   APPEALS. 

Appellate  jurisdiction  of,  see  Appeal,  II.  b. 
^-t^ 

CIRCUMSTANCES. 

Evidence  of,  see  Evidence,  VI.  k,  XI.  j. 


CIRCUMSTANTIAL    EVIDENCE. 

Admissibility  of,  see  Evidence,  VI.  k,  XI.  j. 
Sufficiency  of,  to  sustain  judgment,  see  Evi- 
dence, 2206. 


CIRCUS. 

Liability  of  railroad  company  moving  cir- 
cus train,  see  Carrieks,  662;  Masthi 
and  Servant,  479. 

License  tax  on,  see  License,  23,  24. 


474 


CITATION— CIVIL  LIBERTY. 


CITATION. 

On  appeal,  see  Appeai.  and  Erbob,  III.  e. 

•-»-» 

CITIES. 
See  Municipal  Cobpobations. 


CITIZENS. 


Abridging  privileges  and  immunities  of,  see 
Constitutional  Law,  II.  a. 

Right  to  inspect  books  and  records  of  mu- 
nicipality, see  Municipal  Corpora- 
tions, II.  i. 

Natural  rights  of,  see  Natural  Rights. 

See  also  Aliens;  Citizenship. 


CITIZENSHIP. 


As  affecting  jurisdiction,  see  Courts,  III.  d. 
As  affecting  right  to  removal  of  cause,  see 

Removal  of  Causes,  I.  b. 
Presumption  of,  see  Evidence,  124-126. 
Admissibility    of    statements    of    deceased 

person  to  show,  see  Evidence,  1376. 

1.  A  child  born  a  citizen  of  the  United 
States,  and  removed  by  its  parents  to  a 
foreign  country  during  its  early  life,  re- 
sides in  the  United  States,  within  the  mean- 
ing of  a  statute  providing  that  children  of 
citizens  of  the  United  States  are  themselves 
citizens.  State  ex  rel.  Phelps  v.  Jackson, 
8:  1245,  65  Atl.  657,  79  Vt.  504. 

2.  A  child  bom  in  Canada  of  parents 
who  are  citizens  of  the  United  States  is, 
under  the  act  of  Congress  of  February  10, 
1855,  chap.  71,  himself  a  United  States  citi- 
zen, if  his  father  had  ever  resided  in  the 
United  States  and  he  elects  to  claim  his  citi- 
zenship here.  State  ex  rel.  Phelps  v.  Jack- 
son, 8:  1245,  65  Atl.  657,  79  Vt.  504. 

3.  The  father  of  a  child  bom  in  the 
United  States,  of  American  parentage,  can 
do  nothing  to  deprive  him  of  his  citizen- 
ship. State  ex  rel.  Phelps  v.  Jackson,  8: 
1245,  65  Atl.  657,  79  Vt.  504. 


CITY  AUDITOR. 


(Capacity  in  which  proposal  for  charter 
amendment  is  filed  with,  see  Municipal 
Corporations,  18. 


CITY  TREASURER. 

■th   f^  ■    ■ 
Rights  of,  as  to  public  money,  see  Public 

Moneys. 
Dieest  1-52  L.R.A.(N.S.) 


CIVIC  LEAGUE. 

Statute  as  to  report  of,  upon  candidate  for 
public  office,  see  Constitutional  Law, 
756. 


CIVIL  AUTHORITY. 

Insurance  against  loss  caused  by  order  of, 
see  Insurance,  679,  680. 


CIVIL  DAMAGES. 

See  Intoxicating  Liquobs,  IV.  b. 


CIVIL  DEATH. 


1.  A  person  convicted  of  a  felony  is 
not  devested  of  all  rights  whatever  and 
rendered  absolutely  ciiAliter  mortuus,  but 
may  contract  with  an  attorney  to  obtain 
a  parole,  and  this,  in  the  absence  of  an 
express  statute  to  the  contrary  or  some 
express  provision  for  the  management  of 
his  estate,  carries  with  it  the  right  to  dis- 
pose of  his  property  in  order  to  employ 
counsel,  notwithstanding  a  statute  making 
all  persons  capable  of  contracting  except 
persons  "deprived  of  civil  rights"  and  an- 
other statute  providing  that  a  sentence  of 
imprisonment  in  the  penitentiary  for  any 
term  less  than  life  "suspends  all  the  civil 
rights  of  the  person  so  sentenced"  during 
the  term  of  such  imprisonment.  Byers  v. 
Sun  Savings  Bank,  52:  320,  139  Pa'c.  948, 
41  Okla.  728,  (Annotated) 

2.  The  suspension  of  the  civil  rights  of 
a  person  sentenced  to  the  penitentiary  for  a 
term  less  than  life  begins  at  the  date  of  his 
imprisonment  under  the  sentence.  Harmon 
v.  Bower,  17:  502,  96  Pac.  51,  78  Kan.   135. 

(Annotated) 


CIVIL  ENGINEERS. 

Damages  for  negligent  injury  to  engineer's 
transit,  see  Damages,  449. 


CIVILITER  MORTUUS. 

See  Civil  Death. 

CIVIL  LIBERTY. 

See  CowsTiTUTioNAL  Law. 


CIVIL  RIGHTS;  CIVIL  SERVICE. 


475 


CIVIL  RIGHTS. 

Effect  of  deprivation  of,  on  validity  of  deed 
executed  by  convict  while  execution  of 
judgment  of  conviction  is  stayed,  see 
i)E£US,   21. 

1.  A  merchant  who  leases  space  in  a 
pure  food  siiow  for  demonstration  or  adver- 
tising purposes,  at  which  to  permit  patrons 
of  tlie  sliovv  to  sample  his  wares,  and  wlio 
is  in  no  way  interested  in  the  management 
of  the  show  or  the  profits  therefrom,  does 
not,  in  refusing  to  serve  negroes  at  the 
booth,  violate  the  statute  entitling  all  per- 
sons to  full  and  equal  enjoyment  of  tlie 
privileges  of  inns,  restaurants,  eating 
liouses,  lunch  counters,  and  other  places 
where  refreshments  are  served,  theaters  and 
all  other  places  of  amusement.  Brown  v. 
J.  H.  Bell  Co.  27:  407,  123  N.  W.  231,  124 
N.  W.  901,  146  Iowa,  89. 

In  places  of  amusement. 

Statute  as  to  penalty  and  costs  for  exclud- 
ing negro  from  place  of  amusement,  see 
Costs,  20. 

2.  A  roller  skating  rink  which  the  pub- 
lic is  invited  to  patronize  for  an  admission 
fee  is  within  the  terms  of  a  statute  impos- 
ing a  penalty  for  exclusion  on  account  of 
color  of  any  person  from  the  privilege  of 
inns,  restaurants,  saloons,  barber  shops, 
eatijig  houses,  public  conveyances  on  land 
or  water,  or  any  other  place  of  public  accom- 
modation or  amusement.  Jones  v.  Broadway 
Holler  Rink  Co,  19:  907,  118  N.  W.  170,  13(i 
Wis.  595.  (Annotated) 
In   cars. 

Wrongful  arrest  of  negro  interstate  pas- 
senger under  the  provisions  of  state 
separate  coach  law,  see  Cakriees,  1(32. 

3.  A  railroad  company  may  adopt  rules 
requiring  interstate  colcJred  passengers  to 
occupy  coaches  set  apart  exclusively  for  the 
use  of  colored  persons  while  within  the  lim- 
its of  a  particular  state.  Chiles  v.  Chesa- 
peake &  O.  R.  Co.  11:  268,  101  S.  W.  380, 
125  Ky.  299.  (Annotated) 
In   schools. 

Dismissal  of  negro  from  college,  see  Col- 
leges, 3. 

Who  may  attack  validity  of  statute  pro- 
viding for  separation  of  races  in 
schools,  see  Statutes,  30. 

See  also  Schools,  11. 

4.  Congress   may   constitutionally   pro- 
vide for  the  separation  of  white  and  colored 
children   in  the   public  schools  of  the   Dis- 
trict   of    Columbia.      Wall   v.    Oyster,    31: 
180,  36  App.  D.  C.  50. 

5.  A  negro  is  denied  no  constitutional 
right  by  being  excluded  from  a  private  in- 
corporated institution  of  learning.  Booker 
V.  Grand  Rapids  Medical  College,  24:  447, 
120  N.  W.  589,  156  Mich.  95.        (Annotated) 

6.  Although  a  board  of  education  of  a 
■city  of  the  first  class  may,  under  Kan.  Gen. 
Stat.  1901,  §  6290,  provide  separate  schools 
for  white  and  colored  children  in  certain  j 
grades,  provided  equal  educational  facilities 
are  furnished,  the  location  of  a  school  for  1 
colored  children  where  access  to  it  is  beset 
Digest  1-52  L.R.A.(N.S.) 


with  such  dangers  to  life  and  limb  that 
children  ought  not  to  be  required  to  attend 
it  denies  to  such  children  equal  educational 
facilities,  and  the  action  of  the  board  in 
requiring  them  to  attend  such  school,  and 
denying  them  admission  to  any  other,  is  an 
abuse  of  discretion.  Williams  v.  Board  of 
Education,  22:  584,  99  Pac.  216,  79  Kan. 
202.  (Annotated) 

In    barber    sbep. 

7.  A  barber  shop  is  not  a  place  of  public 
accommodation  within  the  meaning  of  a 
civil  rights  act,  notwithstanding  barbers 
must  secure  licenses  and  their  shops  are  sub- 
ject to  sanitary  inspection  and  regulation. 
Faulkner  v.  Solazzi,  9:  601,  65  Atl.  947,  79 
Conn.  541.  (Annotated) 
Segregation  of  races  as  to  residence. 
See  also  Municipal  Corpobations,  62,  86, 

210. 

8.  No  unconstitutional  discrimination 
between  races  occurred  in  prohibiting  white 
and  colored  persona  from  moving  into  blocks 
occupied  exclusively  by  members  of  the 
other  race.  State  v.  Gurry,  47:  1087,  88 
Atl.  546,  121  Md.  534.  (Annotated) 

9.  An  ordinance  which  prohibits  a 
white  or  colored  owner  of  property  in  a 
block  wholly  occupied  by  members  of  the 
other  race,  and  every  other  member  of  his 
race,  from  moving  into  it,  is  such  an  un- 
reasonable interference  with  vested  prop- 
erty rights  that  it  cannot  be  presumed  that 
power  to  pass  it  was  conferred  upon  the 
municipality  by  the  general  welfare  clause 
of  its  charter.  State  v.  Gurry,  47:  1087, 
88  Atl.  546,  121  Md.  534. 


CIVIL  SERVICE. 


Delegation  of  power  to  civil  service  commis- 
sion, see  Constitutional  Law,  116. 

Constitutionality  of  civil  service  act,  see 
Constitutional  Law,  172. 

Mandamus  to  compel  appointment  of  veter- 
an to  office,  see  Mandamus,  84. 

Certification  of  person  by  civil  service  com- 
mission as  an  appointment,  see  Offi- 
cers, 58. 

Partial  invalidity  of  civil  service  law,  see 
Statutes,  64. 

1.  Arbitrary  power  sufficient  to  invali- 
date the  statute  is  not  conferred  upon  a 
civil  service  commission  to  extend  the  ex- 
empt class,  where  they  are  directed  to  in- 
clude only  offices  as  to  which  they  in  fact 
find  that  examinations  are  impracticable 
on  account  of  the  temporary  duties  of  the 
employment,  or  for  special  reasons  satis- 
factory to  the  commission.  State  ex  rel. 
Buell  V.  Frear,  34:  480,  131  N.  W.  832,  146 
Wis.    291.  (Annotated) 

2.  The  discretion  of  the  appointing  of- 
ficer in  making  appointment  to  oftice  is  not 
unduly  restricted  by  a  statute  which  limits 
him  to  a  choice  among  three  names  from 
an  eligible  list,  except  in  case  of  confiden- 
tial assistants  or  laborers,  as  to  whom 
competitive    examinations    shall    be    found 


476 


impracticable.     State  ex  rel.  Buell  v.  Frear, 
34:  480,  131  N.  W.  832,  146  Wis.  291. 


CLAIM  AGENTS— CLERKS,  I. 

CLASS    LEGISLATION. 


CLAIM  AGENTS. 


Authority  of,  see  Masteb  and  Sebvant,  6. 

♦-•-♦ 

CLAIM  AND   DELIVERY. 

See  Replevin. 


♦  •» 


CLAIMS. 

Against  county,  see  Accord  and  Satis- 
faction, 6,  7;  CotTNTIES,  19-21;  MAN- 
DAMUS, 43. 

Against  bankrupt  estate,  see  Bankbuptcy, 
IV. 

Against  carrier,  time  of  giving  notice  of, 
see  Cabriebs,  III.  g.  4. 

Against  decedent's  estate,  see  Executors 
and  Administbators,  IV. 

Against  insolvent  estate  generally,  see  In- 
solvency, V. 

Against  city,  presentation  of,  see  Munici- 
pal Corporations,  II.  g,  6. 

Against  city  collection  of,  see  Municipal 
Corporations,  II.  gg. 

For  injury  by  defective  highway,  see  High- 
ways, IV.  d,  2. 

For  mechanics'  lien,  see  Mechanics'  Liens, 
93-99. 

Adverse  claim  to  deposit,  see  Banks,  69. 

Validity  of  statute  imposing  penalty  for 
refusal  to  pay  within  certain  time,  see 
Constitutional  Law,  332,  666,  567, 
800. 

Construction  of  contract  for  collection  of, 
see  Contracts,  358. 

Effect  of  allowing  claim  for  services  of  de- 
tective, see  Counties,  34. 


CLASS. 

Appointment  by  court  of  person  to  repre- 
sent, see  Judgment,  219. 


CLASSIFICATION*^  ,:[n  i, 

Of  members  of  benefit  society,  see  Benevo- 
lent Society,  9. 

Of  freight,  see  Carriers,  816-819. 

Of  counties  for  purpose  of  elections  upon 
local  matters,  see  Elections,  18. 

Of  business  for  purpose  of  occupation  tax, 
see  License,  II.  d. 

Of  mail,  see  Postoffice,  2. 

Of  property  for  taxation,  see  Taxes,  I.  c. 

For  purpose  of  water  rates,  see  Waters, 
402. 

By  statute,  see  Constitutional  Law,  II.  a; 
Statutes,  I.  g. 

Digest  1-52  L.R.A.(N.S.) 


See    CoNSTiTxmoNAL    Law,    II.   a;    Game. 
Laws,  6. 


Ui   »jii. CLEARANCE   CARD. 

Duty  of  master  to  give,  see  CoNSTiTurioNAii. 
Law,  724,  758. 


CLEARING  HOUSE. 

Business  of,  see  Banks,  IV.  d. 
Effect  on  payee  of  bank's  failure    to    com- 
ply with  rules  of,  see  Banks,  89. 


CLEARING  LAND. 


By  life  tenant  as  waste,  see  Life  Tenants^ 
8. 


CLERGYMAN. 


Libel  of,  see  Libel  and  Slandeb,  54. 
Necessity  of,  to  solemnization  of  marriage^ 

see  Marriage,  3. 
Special  telephone  rates  to,  see  Telephones, 

25. 
In  general,  see  Religious  Societies,  IV. 


CLERKS. 

I.  Of  United  States  court. 
II.  Of  state  court,  1,  2. 

Recovery  from  clerk  of  auction  money 
paid  on  bid  because  of  breach  of  war- 
ranty, see  Assumpsit,  18. 

Recovery  back  of  fees  wrongfully  exacted 
by  county  clerk,  see  Assumpsit,  30. 

Power  to  take  bail  bond,  see  Bail  ani> 
Recognizance,  17. 

Bonds  of,  see  Bonds,  49,  53;  Pabties,  90; 
Subrogation,  32. 

Delegating  to,  power  to  issue  warrants  of 
arrest,  see  Constitutional  Law,  137. 

Druggist's  liability  for  negligence  of  clerk, 
see  Drugs  and  Druggists,  5. 

Sale  of  liquor  by,  see  Intoxicating  Li- 
quors, III.  c. 

Duty  of  clerk  or  judge  to  issue  execution, 
see  Judges,  2. 

Mandamus  to  compel  one  usurping  oflBce  of 
clerk  to  tuin  over  papers,  see  Man- 
damus, 13. 

Of  school  district,  see  Officers,  24. 

Z.  Of  United  States  court. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 
C.8.VI),A.,a.J  S6-I  t8»9HI 


CLERKS,  II.— CLOUD  ON  TITLE. 


477 


77.   Of  state  ccnirt. 

(See   also    same   heading   in   Digest   L.R.A. 

1-70.) 

Limitation  of  time  for  action  against  clerli 
for  making  erroneous  record,  see  Limi- 
tation OF  Actions,  185. 

1.  An  arbitrary  standard  for  tlie  meas- 
urement ot  tlie  value  of  services  of  tlie 
clerk  of  the  probate  court  according  to  the 
value  of  the  estate  to  be  administered  can- 
not be  adopted  by  the  legislature.  State  ex 
rel.  Nettleton  v.  Case,  i:  152,  81  Pac.  554, 
39   Wash.   177. 

2.  A  state  statute  placing  clerks,  of 
state  courts  upon  a  salary  and  requiring 
them  to  turn  over  to  the  county  all  fees 
received  by  them  does  not  apply  to  fees 
allowed  them  by  the  Federal  statute  for 
services  in  the  naturalization  of  aliens. 
Fields  V.  Multnomah  County,  44;  322,  128 
Pac.  1045,  64  Or.  117. 


CLOSED   SEASON. 

See  Game  and  Game  Laws;  Jury,  36. 


CLOSED   SHOP. 


Conspiracy  to  maintain,  see  Conspiract,  43, 
47. 


CLOTHING. 


Admission  of,  in  evidence,  see  Appeal  and 
Error,  1127,  1128. 

Admissibility  of  photograph  of,  see  Evi- 
dence, 891. 

Evidence  admissible  under  pleading  in 
action  for  injury  to,  see  Evidence, 
2440. 

Liability  for  injury  to,  see  Negligence,  77. 


CLOUDBURST. 

As  act  of  God,  see  Act  of  God,  3,  4. 


CLOUD    ON   TITLE. 

I,  When  action  lies,    1—25. 
a.  In  general,   1—11. 
ft.  What  are  clouds,   12—14. 
c.  Who  may  sue;  title  or  posses- 
sion of  complainant,    15—25. 
II.  Defenses;    counterclaims,    26—28. 

III.  Conditions,  29. 

IV.  Cross  hill,  30. 
Dlsest  1-52  L.R.A.(N.S.) 


Suit  to  determine  rights  of  appropriators 
of  water  as  one  to  quiet  title,  see 
Action  or   Suit,  57. 

Joining  statutory  action  to  quiet  title  with 
common-law  action  to  recover  damages 
for  trespass,  see  Action  or  Suit,  122. 

Multifariousness  of  bill  to  clear  title,  see 
Action  or  Suit,  128. 

Questions  reviewable  on  appeal,  see  Appeal 
AND  Error,  403. 

Ruling  upon  complaint  in  action  for  specific 
performance  of  contract  to  devise  prop- 
erty as  law  of  case  on  cross  complaint 
to  quiet  title  to  property,  see  Appeal 
AND  Error,  1662. 

Contract  to  clear  title,  see  Contracts,  386. 

Condition  precedent  to  suit  against  county, 
see  Counties,  19. 

Equitable  jurisdiction  to  remove,  see 
Equity,  48,  49,  93,  111. 

Estoppel  to  contest  purchaser's  suit  to 
quiet  title,  see  Estoppel,  172. 

Burden  of  proof,  see  Evidence,  560. 

Evidence  in  action  to  quiet  husband's  title 
to  property  of  deceased  wife,  see  Evi- 
dence, 976,  1309.  ; 

Injunction  against  redemption,  under  void 
order,  of  lands  forfeited  for  taxes,  see 
Injunction,  5. 

Injunction  against  cutting  of  timber  in 
exercise  of  jurisdiction  to  remove  cloud, 
see  Injunction,  211. 

Quieting  title  to  easement,  see  Judgment^, 
29. 

Validity  of  default  decree  quieting  title  as 
against  partnership  described  by  fima. 
name  only,  see  Judgment,  128. 

Conclusiveness  of  dismissal  of  bill  to  set 
aside  tax  deed  as,  see  Judgment,  111. 

What  matters  concluded  by  judgment,  see 
Judgment,  165. 

Who  concluded  by  decree,  see  Judgment, 
217,  256. 

Conclusiveness,  in  action  to  remove,  of 
judgment  rendered  in  ejectment,  see 
Judgment,  171. 

Vacation  of  judgment  in  suit  to  quiet  title, 
see  Judgment,  325,  330. 

Laches  as  bar  to  suit  to  quiet  title,  see 
Limitation   of  Actions,   24. 

Application  of  statute  of  limitations  to 
action  to  remove,  see  Limitation  op 
Actions,  103. 

Effect  of  action  to  remove  cloud  to  suspend 
running  of  limitations  against  mort- 
gage, see  Limitation  of  Actions,  282. 

Mandamus  to  secure  removal  of,  see  Man- 
damus, 41. 

Action  to  quiet  title  against  mortgagee  in 
possession,  see  Mortgage,  31. 

Effect  of  tender  on  right  to  removal  of 
mortgage  from  record  as  cloud  on  title, 
see  Mortgage,  67. 

Purchaser's  right  to  maintain  bill  for  re- 
moval of,  see  Parties,  23,  24. 

Pleading  in  action  to  quiet  title,  see  Plead- 
ing, 110,  544. 

Set-oflf  in  action  to  quiet  title,  see  Set-Off 
AND   Counterclaim,  4. 

Suit  to  set  aside  tax  deed  as,  see  Taxes, 
212. 


476 


CLAIM  AGENTS— CLERKS,  I. 


impracticable.     State  ex  rel.  Buell  v.  Frear, 
34:  480,   131  N.   W.  832,   146  Wis.  291. 


CLAIM  AGENTS. 


Authority  of,  see  Master  and  Sebvant, 

^  •  » 

CLAIM  AND  DELIVERY. 

See  Replevin. 

■'  i  ♦-•-♦ 


CLAIMS. 

Against  county,  see  Accord  and  Satis- 
faction, 6,  7;  Counties,  19-21;  Man- 
damus, 43. 

Against  bankrupt  estate,  see  Bankbuptcy, 
IV. 

Against  carrier,  time  of  giving  notice  of, 
see  Carriers,  III.  g.  4. 

Against  decedent's  estate,  see  Executors 
AND  Administrators,  IV. 

Against  insolvent  estate  generally,  see  In- 
solvency, V. 

Against  city,  presentation  of,  see  Munici- 
pal Corporations,  II.  g,  5. 

Against  city  collection  of,  see  Municipal 
Corporations,  II.  gg. 

For  injury  by  defective  highway,  see  High- 
ways, IV.  d,  2. 

For  mechanics'  lien,  see  Mechanics'  Liens, 
93-99. 

Adverse  claim  to  deposit,  see  Banks,  69. 

Validity  of  statute  imposing  penalty  for 
refusal  to  pay  within  certain  time,  see 
Constitutional  Law,  332,  666,  567, 
800. 

Construction  of  contract  for  collection  of, 
see  Contracts,  358. 

Effect  of  allowing  claim  for  services  of  de- 
tective, see  Counties,  34. 


CLASS. 

Appointment  by  court  of  person  to  repre- 
sent, see  Judgment,  219. 

,     iicqu    ti'i'    ♦-•"• 

•/.'.)  'jdi   bu  .ivi-jo   ii 

-.11  ,yi  Ik. !•- CLASSIFICATION"*-,. to   j,. 

Of  members  of  benefit  society,  see  Benevo- 
lent Society,  9. 

Of  freight,  see  Carriers,  816-819. 

Of  counties  for  purpose  of  elections  upon 
local  matters,  see  Elections,  18. 

Of  business  for  purpose  of  occupation  tax, 
see  License,  II.  d.         ,-,,.    ;,, ,     ._ 

Of  mail,  see  Postoffice,  2.x..,;,,.,,  ,,""., 

Of  property  for  taxation,  see  Taxes,  I.  c. 

For  purpose  of  water  rates,  see  Waters, 
402. 

By  statute,  see  Constitutional  Law,  II.  a; 
Statutes,  I.  g. 

Digest  1-52  L.R.A.(N.S.) 


CLASS    LEGISLATION. 

See    Constitutional    Law,    II.   a;    Game. 
Laws,  6. 


CLEARANCE   CARD. 

Duty  of  master  to  give,  see  Constitutional. 
Law,  724,  758. 


CLEARING  HOUSE. 

Business  of,  see  Banks,  IV.  d. 
Effect  on  payee  of  bank's  failure    to    com- 
ply with  rules  of,  see  Banks,  89. 

.tit'f/^ 

CLEARING  LAND. 

By  life  tenant  as  waste,  see  Life  TfiafANTS^ 
8. 


CLERGYMAN. 


Libel  of,  see  Libel  and  Slander,  54. 
Necessity  of,  to  solemnization  of  marriage,, 

see  Marriage,  3. 
Special  telephone  rates  to,  see  Telephones,. 

25. 
In  generaJ,  see  Religious  Societies,  IV. 


CLERKS. 

I.  Of  United  States  court. 
II.  Of  state  court,  1,  2. 

Recovery  from  clerk  of  auction  money 
paid  on  bid  because  of  breach  of  war- 
ranty, see  Assumpsit,  18. 

Recovery  back  of  fees  wrongfully  exacted 
by  county  clerk,  see  Assumpsit,  30. 

Power  to  take  bail  bond,  see  Bail  an& 
Recognizance,  17. 

Bonds  of,  see  Bonds,  49,  63;  Pabties,  90; 
Subrogation,  32. 

Delegating  to,  power  to  issue  warrants  of 
arrest,  see  Constitutional  Law,   137. 

Druggist's  liability  for  negligence  of  clerk^ 
see  Drugs  and  Druggists,  6. 

Sale  of  liquor  by,  see  Intoxicating  Li- 
quors, III.  c. 

Duty  of  clerk  or  judge  to  issue  execution^ 
see  Judges,  2. 

Mandamus  to  compel  one  usurping  ofl5ce  of 
clerk  to  turn  over  papers,  see  Man- 
damus, 13. 

Of  school  district,  see  Officers,  24. 

/.  Of  United  States  court. 

(See  same  heading  in  Digest  L1R.A.  1-10.) 
(.8,i«).A.Ji.J[  Sd~I  i%9^k€L 


CLERKS,  II.— CLOUD  ON  TITLE. 


477 


//.   Of  state  court. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Limitation  of  time  for  action  against  cleric 
for  making  erroneous  record,  see  Limi- 
tation OF  Actions,  185. 

1.  An  arbitrary  standard  for  the  meas- 
urement o&  tlie  value  of  services  of  the 
clerk  of  the  probate  court  according  to  the 
value  of  the  estate  to  be  administered  can- 
not be  adopted  by  the  legislature.  State  ex 
rel.  Nettleton  v.  Case,  i:  152,  81  Pac.  554, 
39   Wash.   177. 

2.  A  state  statute  placing  clerks,  of 
state  courts  upon  a  salary  and  requiring 
them  to  turn  over  to  the  county  all  fees 
received  by  them  does  not  apply  to  fees 
allowed  them  by  the  Federal  statute  for 
services  in  the  naturalization  of  aliens. 
Fields  V.  Multnomah  County,  44:  322,  128 
Pac.  1045,  64  Or.  117. 


CLOSED   SEASOX. 

See  Game  and  Game  Laws;  Jury,  36. 


CLOSED   SHOP. 


Conspiracy  to  maintain,  see  Conspiract,  43, 
47. 


CLOTHING. 


Admission  of,  in  evidence,  see  Appeal  and 
Error,  1127,  1128. 

Admissibility  of  photograph  of,  see  Evi- 
dence, 891. 

Evidence  admissible  under  pleading  in 
action  for  injury  to,  see  Evidence, 
2440. 

Liability  for  injury  to,  see  Negligence,  77. 


CLOUDBURST. 


As  act  of  God,  see  Act  of  (tOd,  3,  4.,  r    r- 


CLOUD    ON    TITLE.      '    ''  *;  ' 

.ir.y.'.y.i-: 

I.  When  action  lies,   1—25. 
a.  In  general,   1—11. 
h.  What  are  clouds,   12—14. 
e.  Who  may  sue;  title  or  posses- 
sion of  complainant,    15—25. 
II,  Defenses ;    counterclaims,    26—28. 

III.  Conditions,  29. 

IV.  Cross  hill,  30. 
Dieest  1-52  L.R.A.(N.S.) 


Suit  to  determine  rights  of  appropriators 
of  water  as  one  to  quiet  title,  see 
Action  or  Suit,  57. 

Joining  statutory  action  to  quiet  title  with 
common-law  action  to  recover  damages 
for  trespass,  see  Action  or  Suit,  122. 

Multifariousness  of  bill  to  clear  title,  see 
Action  or  Suit,  128. 

Questions  reviewable  on  appeal,  see  Appeal 
and  Error,  403. 

Ruling  upon  complaint  in  action  for  specific 
performance  of  contract  to  devise  prop- 
erty as  law  of  case  on  cross  complaint 
to  quiet  title  to  property,  see  Appeal 
AND  Error,  1662. 

Contract  to  clear  title,  see  Contracts,  386. 

Condition  precedent  to  suit  against  county, 
see  Counties,  19. 

Equitable  jurisdiction  to  remove,  see 
Equity,  48,  49,  93,  111. 

Estoppel  to  contest  purchaser's  suit  to 
quiet  title,  see  Estoppel,  172. 

Burden  of  proof,  see  Evidence,  560. 

Evidence  in  action  to  quiet  husband's  title 
to  property  of  deceased  wife,  see  Evi- 
dence, 976,  1309. 

Injunction  against  redemption,  under  void 
order,  of  lands  forfeited  for  taxes,  see 
Injunction,  5. 

Injunction  against  cutting  of  timber  in 
exercise  of  jurisdiction  to  remove  cloud, 
see  Injunction,  211. 

Quieting  title  to  easement,  see  Judgment^/ 
29. 

Validity  of  default  decree  quieting  title  as 
against  partnership  described  by  firm 
name  only,  see  Judgment,  128. 

Conclusiveness  of  dismissal  of  bill  to  set 
aside  tax  deed  as,  see  Judgment,  111. 

What  matters  concluded  by  judgment,  see 
Judgment,  165. 

Who  concluded  by  decree,  see  Judgment, 
217,  256. 

Conclusiveness,  in  action  to  remove,  of 
judgment  rendered  in  ejectment,  see 
Judgment,  171. 

Vacation  of  judgment  in  suit  to  quiet  title, 
see  JuEKiMENT,  325,  330. 

Laches  as  bar  to  suit  to  quiet  title,  see 
Limitation  of  Actions,  24. 

Application  of  statute  of  limitations  to 
action  to  remove,  see  Limitation  of 
Actions,  103. 

EflFect  of  action  to  remove  cloud  to  suspend 
running  of  limitations  against  mort- 
gage, see  Limitation  of  Actions,  282. 

Mandamus  to  secure  removal  of,  see  Man- 
damus, 41. 

Action  to  quiet  title  against  mortgagee  in 
possession,  see  Mortgage,  31. 

EflFect  of  tender  on  right  to  removal  of 
mortgage  from  record  as  cloud  on  title, 
see  Mortgage,  67. 

Purchaser's  right  to  maintain  bill  for  re- 
moval of,  see  Parties,  23,  24. 

Pleading  in  action  to  quiet  title,  see  Plead- 
ing, 110,  544. 

Set-oflf  in  action  to  quiet  title,  see  Set-Off 
AND  Counterclaim,  4. 

Suit  to  set  aside  tax  deed  as,  see  Taxes, 
212. 


478 


CLOUD  ON  TITLE,  I.  a,  b. 


Ground  for  nonsuit  in  action  to  remove,  see 

Tbial,  693. 
Suit    for    injunction    against    diversion    of 

water  from  river  as  one  to  quiet  title  to 

real  estate,  see  Venue,  9. 
Service    of    process    in  suit  to  remove,  sec 

Wbit  and  Pbocess,  12,  13,  64. 

/.  When  action  lies. 

a.  In  general, 

(See   also   same  heading   in  Digest   L.R.A. 
1-10.) 

1.  An  action  to  quiet  title  to  real  estate 
must  be  prosecuted  and  maintained  in  the 
jurisdiction  in  which  the  res  or  subject-mat- 
ter is  situated.  Taylor  v.  Hulett,  ig:  535, 
97  Pac.  37,  15  Idaho,  265. 

2.  Although  equity  will  not  enforce  a 
forfeiture,  it  may  remove  a  lease  as  a 
cloud  on  title  after  it  has  been  declared  for- 
feited, and  the  aid  of  the  court  is  sought  to 
prevent  a  threatened  continuous  trespass 
upon  the  property,  whicli  will  tend  to  its 
destruction.  Big  Six  Development  Co.  v. 
Mitchell,  i:  332,  70  C.  C.  A.  569,  138  Fed. 
279. 

3.  Independently  of  any  statute  con- 
ferring jurisdiction,  equity  may  remove 
cloud  from  title  to  land  within  its  juris- 
diction at  the  suit  of  the  owner  thereof  in 
possession  under  good  legal  title,  by  a 
decree  binding  only  in  rem.  Tennant  v. 
Fretts,  29:  625,  68  S.  E.  387,  67  W.  Va. 
569. 

4.  A  court  of  equity  will  not  cancel  a 
real-estate  mortgage  securing  a  just  debt, 
which  concededly  has  not  been  paid,  at  the 
suit  of  the  mortgagor,  or  one  standing  in 
his  shoes,  when  the  only  ground  urged  for 
such  relief  is  that  the  statute  of  limitations 
is  available  as  a  defense  against  its  fore- 
closure, Tracy  v.  Wheeler,  6:  516,  107  N. 
W.  68,  15  N.  D.  248.  (Annotated) 

5.  Equity  has  no  jurisdiction  of  a  suit 
by  one  out  of,  against  one  in,  possession  of 
real  estate,  to  cancel  a  void  instrument  and 
remove  a  cloud  from  the  title,  where  he  also 
seeks  to  recover  possession  and  mesne  profits 
and  damages,  although  he  prays  for  addi- 
tional relief  within  the  jurisdiction  of  that 
court.  Johnston  v.  Corson  Gold  Min.  Co. 
15:  1078,  157  Fed.  145,  84  C.  C.  A.  593. 

6.  A  bona  fide  purchaser  for  value  with- 
out notice  may  have  her  title  quieted  against 
one  who  has  a  prior  contract  of  purchase 
executed  by  one  assuming  without  authority 
to  act  for  the  vendor.  McCuUough  v.  Con- 
nelly, 15:  823,  114  N.  W.  301,  137  Iowa,  682. 

7.  Equity  will  entertain  a  bill  to  quiet 
title  where  one  having  title  to  premises 
sells  them  to  another,  who  takes  posses- 
sion, but  refuses  to  pay  the  purchase  mon- 
ey because  of  the  outstanding  adverse  title 
which  plaintiff  seeks  to  remove.  Heppen- 
stall  V.  Leng,  12:  652,  66  Atl.  991,  217  Pa. 
491. 

Digest  1-52  I..B.A.(N.S.) 


8.  Although  one  in  actual  possession 
of  land  under  a  superior  title  may  maintain 
ejectment,  that  fact  will  not  deprive  a 
court  of  equity  of  jurisdiction  to  remove 
a  cloud  on  his  title,  arising  from  a  claim  in- 
terposed by  one  holding  under  an  inferior 
and  adverse  title.  Whitehouse  v.  Jones, 
12:  49,  55  S.  E.  730,  60  W.  Va.  680. 

(Annotated) 

9.  If  the  claimant  of  an  adversary  ti- 
tle, notwithstanding  judgment,  has  been 
rendered  against  him  in  an  action  of  eject- 
ment, still  interposes  a  claim  to  the  prem- 
ises, and  disquiets  the  actual  possession  of 
the  successful  owner,  the  latter  may  go  in- 
to a  court  of  equity  for  injunctive  and  oth- 
er relief  to  quiet  and  give  peace  to  his  ti- 
tle and  possession.  Whitehouse  v.  Jones, 
12:49,   55  S.   E.   730,   GO   W.   Va.   C80. 

10.  A  court  of  equity  is  not  deprived  of 
jurisdiction  to  remove  a  cloud  on  title  by 
failure  of  those  in  possession  under  a  su- 
perior title  to  appear  in  a  proceeding 
brought  by  the  state  for  the  sale  of  a  por- 
tion of  the  tract  forfeited  for  taxes,  and 
in  which  a  decree  allowing  redemption  was 
sought,  where  they  had  no  notice  of  the 
proceeding,  which  was  instituted  and  com- 
pleted in  a  single  day.  Whitehouse  v. 
Jones,  12:  49,  55  S.  E.  730,  60  W.  Va.  680. 

11.  Equity  has  no  jurisdiction  of  a  suit 
to  quiet  title  to  an  island  in  a  navigable 
river  the  naked  title  to  the  bed  of  which 
is  in  the  state,  since  the  riparian  owner 
may,  where  the  state  law  gives  him  title  to 
such  islands,  recover  possession  by  an  ac- 
tion of  ejectment.  Whiteside  v.  Norton, 
45:  112,  205  Fed.  5,  123  C.  C.  A.  313. 

J).  What  are  clouds. 

(See   also   same   heading   in  Digest  L.R.A. 
1-70.) 

Cancelation    of    tax    sale    to    state    as,    see 
State,  19. 

12.  A  mortgage  which  includes  a  strip  of 
land  the  title  to  which  is  in  a  third  person 
for  right  of  way,  but  which  the  mortgagor 
has  the  right  to  fence  in,  is  a  cloud  on  the 
title  of  the  true  owner,  which  entitles  him 
to  equitable  relief.  Pritchard  v.  Lewis, 
1 :  565,  104  N.  W.  989,  125  Wis.  604. 

13.  The  ineffective  levy  of  an  attachment 
upon  real  estate  will  not  sustain  a  suit  to 
remove  a  cloud  on  title,  since  the  invalid- 
ity would  appear  upon  any  attempt  to  en- 
force a  right  under  it.  Beardslee  v.  In- 
graham,  3:  1073,  76  N.  E.  476,  183  N.  Y. 
411. 

14.  A  taxpayer  is  not  entitled  to  a  de- 
cree that  the  estate  is  free  from  any  claim 
for  a  tax  merely  because  there  is  no  legal 
method  of  collecting  it,  where  the  right  tO' 
the  tax  is  vested  under  the  statute.  Trip- 
pet  V.  State,  8:  12 10,  85  Pac.  1084,  149  CaL 
521.  .,  ,       ,,„   ^..,,.,  .,, 


CLOUD  ON  TITLE,  I.  c— HI. 


479 


c^  Who  may  sue;  title  or  possession  of 
complainant. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  of  guardian  of  insane  person  to  main- 
tain suit  to  quiet  title,  see  Incompe- 
tent Pebsons,  29. 

15.  An  action  to  quiet  title  may  be 
brought  by  a  lessee  against  a  lessor  who 
is  claiming  to  be  the  owner  of  the  property 
free  from  any  estate  for  years  in  the  ten- 
ant, under  a  statute  permitting  such  action 
to  be  brought  by  any  person  against  an- 
other who  claims  any  estate  or  interest 
in  real  property  adverse  to  him,  for  the 
purpose  of  determining  such  adverse  claim. 
German-American  Sav.  Bank  v.  Gollmer,  24: 
1066,  102  Pac.  932,  155  Cal.  683. 

16.  An  owner  of  land  in  actual  posses- 
sion may,  both  by  common  law  and  under 
W.  Va.  Code  1899,  chap.  90,  maintain  eject- 
ment against  an  intruding  adverse  claim- 
ant, but  cannot  sustain  a  bill  in  equity  to 
remove  a  cloud  from  his  title.  Logan  v. 
Ward,  5:  156,  52  S.  E.  398,  58  W.  Va.  3()6. 

17.  Equity  will  entertain  a  suit  to  re- 
move cloud  over  the  title  to  land  by  one  in 
actual  possession  against  an  adverse  claim- 
ant not  in  actual  possession,  who  sets  up  an 
adverse  title.  Logan  v.  Ward,  5:  156,  52  S. 
E.  398,  58  W.  Va.  366. 

18.  An  action  under  the  statute  to  deter- 
mine title  to  real  estate  cannot  be  defeated 
by  showing  that  the  title  under  which  both 
parties  claim  was  defective.  Charles  v. 
White,  21:  481,  112  S.  W.  545,  214  Mo.  187. 

19.  One  seeking  to  quiet  title  to  real  es- 
tate of  which  another  is  in  possession  is 
not  bound  to  show  his  right  to  possession 
independent  of  the  right  thereto  which  the 
law  presumes  from  showing  legal  title  to 
the  property.  Flood  v.  Templeton,  13:  579, 
92  Pac.  78,  152  Cal.  148. 

20.  The  owner  of  the  minerals  underly- 
ing land  is  within  the  protection  of  a  stat- 
ute permitting  one  in  peaceable  possession 
of  "lands"  to  maintain  a  bill  to  quiet  title 
to  them  against  one  denying  or  disputing 
his  title.  Alabama  Coal  &  C.  Co.  v.  Gulf 
Coal  &  C.  Co.  7:  712,  40  So.  397,  145  Ala. 
228. 

21.  An  alleged  owner  of  a  ditch  across 
another's  land  cannot  have  the  title  to  it 
quieted  against  a  purchaser  of  the  land 
without  notice,  where,  at  the  time  of  the 
purchase,  all  traces  of  the  ditch  have  been 
obliterated,  since  the  purchaser  will  take 
his  title  free  from  the  easement.  Blake  v. 
Boye,  8:  418,  88  Pac.  470,  38  Colo.  55. 

(Annotated) 

22.  One  whose  only  title  to  land  is  under 
a  tax  deed  made  to  a  grantee,  who  was  dead 
when  it  was  executed,  which  was  delivered 
to  the  former  as  the  heir  of  the  grantee, 
who  caused  the  deed  to  be  recorded  and 
paid  the  taxes  on  the  land,  but  who  never 
took  actual  possession,  cannot  maintain  an 
action  to  quiet  title,  or  for  an  injunction 
against  one  who  holds  under  the  government 
title  and  who  is  in  actual  possession  of  the 
Digest  1-52  i:^R.A.(N.S.) 


land.     Baker  v.  Lane,  28:  405,  109  Pac.  182, 

82  Kan.  715. 

Necessity  of  possession. 

See  also  supra,  19,  22. 

23.  The  plaintiff  in  a  bill  to  remove  a 
cloud  from  the  title  to  land  must  have  both 
title  and  actual  possession,  and  cannot  rely 
on  the  weakness  of  the  title  of  his  adver- 
sarv.  Logan  v.  Ward,  5:  156,  52  S.  E.  398, 
58  W.  Va.  366. 

24.  One  who  has  contracted  to  sell  real 
estate  of  which  he  has  placed  the  vendee  in 
possession  cannot,  upon  the  vendee's  refus- 
ing to  pay  the  purchase  money  because  of 
an  outstanding  adverse  title,  proceed  under 
a  statute  permitting  one  in  possession  of 
real  estate  to  obtain  a  rule  on  one  claiming 
an  adverse  title,  to  bring  ejectment  to  try 
the  title.  Heppenstall  v.  Leng,  12:  652,  66 
Atl.  991,  217  Pa.  491.  (Annotated) 

25.  The  primary  object  of  a  bill  to  com- 
pel the  conveyance  of  the  legal  title  to  real 
estate,  and  to  cancel  invalid  instruments 
alleged  to  constitute  clouds  thereon,  is  the 
vindication  of  the  equitable  title,  not  the 
removal  of  a  cloud  from  the  legal  title,  and 
the  rule  requiring  possession  on  the  part 
of  a  plaintiff  in  a  bill  to  remove  cloud  from 
title  has  no  application.  Blake  v.  O'Neal, 
16:  1147,  61  S.  E.  410,  63  W.  Va.  483. 

//.  Defenses ;   counterclaim,8. 

(See   also   same   heading   in  Digest   L.R.A. 
1-tO.) 

As  to  counterclaim,  see  infra,  30. 
Right  to  set  up  defense  of  equitable  estop- 
pel, see  Estoppel,  48.  i  r. 

26.  That  a  power  of  attorney  includes 
other  lands  besides  those  involved  in  a  suit 
does  not  preclude  the  court  from  removing 
its  cloud  from  those  in  suit.  Priddy  v. 
Boice,  9:  718,  99  S.  W.  1055,  201  Mo.  309. 

27.  Failure  to  tender  a  deed  will  not  pre- 
vent cancelation  of  a  contract  for  sale  of 
real  estate,  which  the  vendee  refused  to 
perform,  as  a  cloud  on  the  vendor's  title, 
where  the  vendee  refused  to  perform  be- 
cause of  the  vendors  refusal  to  correct  al- 
leged defects  in  the  title  which  he  was  not 
bound  to  do.  Kane  v.  Borthwick.  18:  486, 
96  Pac.  516,  50  Wash.  8. 

28.  One  holding  a  tax  title  to  mort- 
gaged property  who  is  made  a  party  to  the 
foreclosure  proceedings  in  which  the  mort- 
gagee finally  sets  up  a  tax  title  to  support 
his  claim  to  the  property  is  not  bound  to 
show  the  validity  of  his  own  title,  but 
may  defeat  a  recovery  by  showing  the  in- 
validity of  that  of  plaintiff.  National 
Surety  Co.  v.  Walker,  38:  333,  125  N.  W. 
338,  148  Iowa,  157. 

III.  Conditions. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

29.  A  quitclaim  deed  by  a  woman  of  land 
held  by  herself  and  her  husband  by  entire- 


480 


CLOUD  ON  TITLE,  IV.— COADMINISTRATORS. 


ties  will  not  be  canceled  as  a  cloud  on  title 
after  the  title  vests  in  her  by  her  husband's 
death  until  she  returns  the  consideration 
which  she  received  for  the  conveyance. 
Ernst  V.  Ernst,  51:317,  144  N.  W'  613, 
178  Mich.  100. 

IV.  Cross  bill. 

(See   also    same   heading   in   Digest   L.R.A. 
1-70.) 

30.  A  mere  counterclaim  for  return  of 
the  advance  payment  on  the  contract  can- 
not be  set  up  by  cross  complaint  in  an  ac- 
tion to  cancel  a  contract  to  convey  real 
property  as  a  cloud  on  the  owner's  title. 
Kane  v.  Borthwick,  18:  486,  96  Pac.  516. 
50  Wash.  8. 


CLUBS. 

Appeal  from  decrees  directing  members  to 
pay  assessments,  see  Appeal  and  Er- 
ROB,  43. 

Assignment  of  dues  owing  by  member,  see 
Assignment,  5. 

Private  club  as  disorderly  house,  see  Dis- 
orderly Houses,  6. 

Bill  in  equity  by  receiver  to  recover  dues 
from  members,  see  Equity,  103,  104. 

Liability  of  commercial  club  conducting 
race  in  highway  for  resulting  injury, 
see  Highways,  286. 

Sale  of  liquor  by,  see  Intoxicating  Li- 
quors, III.  b;  Statutes,  126. 

Privileged  character  of  statement  by  presi- 
dent of,  see  Libel  and  Slander,  114. 

Mandamus  to  compel  reinstatement  of  base 
ball  club  in  league,  see  Mandamus,  11. 

1.  The  relation  of  members  to  unincor- 
porated social  clubs  and  societies  is  con- 
tractual, and  tlie  articles  of  association  or 
by-laws  constitute  the  terms  of  their  agree- 
ment. Anderson  v.  Amidon,  34:  647,  130 
N.  W.  1002,  114  Minn.  202. 

2.  Provisions  of  the  articles  of  as- 
sociation of  a  social  club  imposing  upon 
members  the  payment  of  dues  and  assess- 
ments at  stated  times,  and  subscribed  to  by 
them,  create  a  legal  obligation  upon  the 
part  of  each  member  to  pay  the  same,  so 
long  as  the  society  remains  a  going  concern 
and  his  membership  therein  continues.  An- 
derson V.  Amidon,  34:  647,  130  N.  W.  1002, 

114  Minn.  202.  (Annotated) 

3.  Members  of  a  social  club  cannot 
avoid  paying  their  dues  to  its  receiver  on 
the  theory  that  they  have  not,  because  of 
the  receivership,  enjoyed  the  expected  bene- 
fits of  membership,  where  they  accrued  be- 
fore the  receiver  was  appointed.  Rogers  v. 
Boston  Club,  28:  743,  91  N.  E.  321,  205 
Mass.  261. 

4.  Under  by-laws  of  a  social  club  per- 
ditting  assessments  to  be  made  by  a  ma- 
jority of  an  executive  committee  and  consti- 
tuting one  fourth  of  the  committee  a 
•quorum,  the  assessments  must  be  made  by 
JDigest   1-52  L.R.A.(N.S.) 


a  majority  of  the  committee,  and  not  of  the 
quorum.  Rogers  v.  Boston  Club,  28:  743, 
91  N.  E.  3-24,  205  Mass.  261. 

5.  A  charter  of  a  social  club  permitting 
it  to  sell  tobacco,  soft  drinks,  and  other  ar- 
ticles at  all  times  to  i.s  members  will  be' 
revoked  as  fraudulently  obtained  to  avoid 
the  Sunday  law,  when  secured  by  those  in 
control  of  a  drug  company  wliich  has  been 
forced  to  observe  tlie  law  against  the  sale 
of  such  articles  on  Sunday,  the  club  adver- 
tising for  members  who  become  such  by 
merely  signing  an  application  and  receiving 
a  membership  certilicate,  the  organization 
occupying  a  room  in  tlie  building  of  the 
drug  company,  which  furnishes  tiie  supplies 
and  receives  90  per  cent  of  tlie  gross  re- 
ceipts of  sales  to  members,  no  meetings  ever 
being  held  by  the  general  .  members,  and 
only  occasional  meetings  by  the  directors. 
Hanger  v.  Com.  14:683,  60  S.  E.  67,  107  Va. 
872.  (Annotated) 

6.  A  social-club  incorporation  law  which 
does  not  define  the  functions  that  may  be 
exercised  by  such  corporations  is  not  in- 
tended to  confer  upon  them  the  authority 
to  conduct  a  business  which,  if  done  by  an 
individual,  would  be  illegal,  their  functions 
under  such  a  statute  being  purely  social. 
Hanger  v.  Com.  14:  683,  60  S.  E.  67,  107 
Va.  872. 

7.  A  member  of  a  social  club  must 
make  a  satisfactory  showing  of  misman- 
agement of  its  afi'airs  by  the  board  of  di- 
rectors, of  whose  acts  he  had  knowledge  and 
made  no  complaint,  before  he  can  maintain 
an  action  against  the  club  on  the  theory 
that  such  mismciagement  resulted  to  his 
injury.  Rollins  v.  Denver  Club,  i8:  733,  98 
Pac.  188,  43  Colo.  345. 

8.  A  member  of  a  social  club  who  has 
contributed  funds  for  the  erection  of  a 
clubhouse,  which  is  to  be  returned  out  of 
surplus  revenues,  cannot,  in  case  no  such 
revenues  are  available,  maintain  an  action 
against  the  club  on  the  theory  that  the  di- 
rectors were  guilty  of  mismanagement  in 
diverting  revenues  to  nonessentials,  where 
he  has  never  objected  or  protested  in  any 
way  against  such  mismanagement.  Rollins 
V.  Denver  Club,  18:  733,  96  Pac.  188,  43  Colo. 
345. 

9.  Before  a  member  of  a  social  club  who 
has  advanced  money  for  the  construc- 
tion of  a  clubhouse  can  enforce  a  certificate 
by  which  the  club  undertakes  to  pay  the 
money  out  of  surplus  revenues  which  can  be 
prudently  applied  to  that  purpose  at  the 
discretion  of  the  dii'cctors,  he  must  show 
that  the  contingency  upon  which  payment 
was  to  be  made  has  happened,  or  been  pre- 
vented by  fraud  or  bad  faith  of  the  direct- 
ors. Rollins  v.  Denver  Club,  18:  733,  96 
Pac.  188,  43  Colo.  345. 


COAIXMINISTRATORS. 

See  CoEXECxrroRS  and  Administbatobs. 


aid 


:rr 


COAL— CODICIL. 


481 


,aTv 


COAL. 


Duty  of  carrier  as  to  transportation  of,  see 
Caruiers,  773-776,  956;  Constitu- 
tional Law,  443;  Damages,  284,  285, 
695:  Mandamus,  74,  124,  125. 

Statute  prescribing  maximum  coal  rates,  see 
Carriers,  1035;  Constitutional  Law, 
494;  Evidence,  666,  2341. 

Option  to  purchase,  see  Contbacts,  164, 
168. 

Damages  for  unlawful  mining  of,  see  Dam- 
ages, 466,  «467. 

Rights  under  deed  of,  with  right  of  removal, 
see  Deeds,  29,  58. 

Lien  of  judgment  on  interest  in,  see  Judg- 
ment, 269. 

Sale  of  coal  underlying  infant's  land,  see 
Judgment,  395. 

Libel  of  dealer  in,  see  LiIBEl  and  Slandb^i, 
47. 

As  to  mines  generally,  see  Mines,  II.  a. 

Taxation  of  leasehold  estates  in  coal  lands, 
see  Taxes,  26,  62. 

Taxation  of,  during  transportation,  see 
Taxes,  151. 


COAI.   ELEVATOR. 

Who    are    fellow    servants    in,    see   Masteb 
AND  Servant,  835. 


COAL   HOLE. 


In  sidewalk,  see  Contribution  and  Indem- 
nity, 14,  15;  Evidence,  1869,  1870, 
2019;  Highways,  307-309,  317-320, 
388a,  389;  Teial,  1057,  1058. 


COAL  LANDS. 


As    separate    or    community    property,    see 
Husband  and  Wife,  72. 


COAL  MIXES. 


See  Mines,  II.  a. 


COAL  "WASHING  PLANT. 

Injunction  against  permitting  water  from, 
to  escape  into  open  trench  in  city 
street,  see  Nuisances,  143. 


COAL  YARDS. 


COASTING. 

In  public  street,  see  Action  or  Suit,  37 : 
Highways,  37;  Steeet  Railways,  21 ! 
Trial,  442,  461. 


COCAINE. 


Illegal  sale  of,  see  Drugs  and  Druggists, 
1;  Evidence,  1225;  Indictment,  In- 
formation AND  Complaint,  35. 


CO-CONSPIRATOR. 

Proof  of  acts  or  declarations  of,  see  Evi- 
dence, X.  g. 

Sufficiency  of  evidence  by,  to  sustain  con- 
viction, see  Evidence,  2364-2:372, 


C.   O.   D. 

Carrier's  failure  to  collect  C.  0.  D.  charges, 

see  Carriers,  756. 
Right  of  carrier  advancing  C.  0.  D.  charges 

to  lien  for,  see  Carriers,  829. 
C.  0.   D.   sales   of  intoxicating  liquors,   see 

Intoxicating   Liquors,   42,   119,   166- 

171,  176. 
When  title  passes  on  C.  O.  D.  sale  generally, 

see  Sale,  36-38. 


CODE. 

Canadian     criminal     code,     see     Canadian 

Criminal  Code. 
Pleading  under  code,  see  Pleading,  230,  583. 
Codification  of  statutes,  see  Stati;tes,  130, 

354.  ,^^ 


CODEFENDANTS. 


Conviction  of  one  of  several  codefendants, 
see  Criminal  Law,  317. 

Dismissal  as  to  one;  right  of  other  to  com- 
plain, see  Dismissal  and  Discontinu- 
ance, 14. 

Admissibility  of  declarations  of,  see  Evi- 
dence, 1457. 

Conclusiveness  of  judgment  as  between  co- 
defendants,  see  Judgment,  224,  225. 


CODICIL. 


Breach  of  contract  to  make,  see  Contracts, 
Unlawful  employment  of  infant  in,  see  Mas-  688.  , 

ter  and  Servant,  171.  I  Revocation  of,  see  Wills,  53. 

Liability  of  owner  for  dangerous  condition  I  Reduction  of  gift  by,  see  Wills,  115,  116. 

of,  see  Negligence,  75,  76.  In  general,  see  Wills,  I.  f. 

Digest  1-52  L.R.A.(N.S.)  31 


482 


CODIFICATION— COLLATERAL     SECURITY. 


CODIFICATION. 

Of  statutes,  see  Statutes,  130,  354. 


COERCION. 


Coercireness  of  workmen's  compensation  act, 

see  Constitutional  Law,  469. 
Resignation  procured  by,  see  Officers,  50. 


COEXECUTORS  AND  ADMINIS- 
TRATORS. 

Powers  of,  see  ExpcuroBs  and  Adminis- 
trators, 43,  44. 

Liability  for  acts  of,  see  ExECtrroRS  and 
Administrators,  72-75. 

Commissions  of,  see  Executors  and  Ad- 
ministrators, 132. 


COHABITATION. 


Condonation  of  marital  fault  by,  see  Di- 
vorce and  Separation,  74,  75. 

Presumption  of  marriage  from,  see  Evi- 
dence, 83-85. 

Presumption  as  to  subsequent  character  of 
cohabitation  originally  illicit,  see  Evi- 
dence, 147,  148. 

Validation  of  void  marriage  by,  see  Mar- 
riage, III.  b,  2. 


COIN. 

Prohibiting  exportation  of  Philippine  coin, 
,       see  Constitutional  Law,  521. 


COKE. 

Duty  of  carrier  as  to  transportation  of,  see 
Carriers,  776;  Mandamus,  74,  124, 
125. 

Combination  by  manufacturers  of,  see  Mo- 

KOPOLT  AND   COMBINATIONS,   45.' 


COU). 

Exposure    of    passenger    to,    see    Carriers, 
207-209. 


COLD   STORAGE. 


COLLATERAL   AGREEMENTS. 

Parol  evidence  as  to,  see  Evidence,  VI.  c 


Liability  for  injury  to  goods  in,  see  Bail- 
ment, 24,  25. 

Expert  opinion  as  to  whether  product  which 
has  been  frozen  will  thaw  in  tempera- 
ture lower  than  freezing  point,  see  Evi- 
dence, 1197. 

Digest  1-52  L.R.A.(N.S.) 


COLLATERAL    ATTACK. 

On  compromise  of  action  by  attorney,  see 
Compromise  and  Seti'l'ement,  10. 

On  receivership  proceedings  against  corpo- 
ration, see  Corporations,  364. 

On  appointment  of  administrator,  see 
Executors  and  Administrators,  26- 
32. 

On  lease  of  ward's  property,  see  Guardiak 
AND  Ward,  13. 

On  indictment,  see  Indictment,  etc.,  59. 

On  judgment,  see  Jxhjgment,  II.  c. 

On  foreclosure  sale,  see  Mortgage,  118. 

On  order  authorizing  supplemental  bill,  see 
Pleading,  128. 

On  appointment  of  receiver,  see  Receivers,. 
7. 

On  order  changing  boundaries  of  school  dis- 
trict, see  Schools,  42. 

On  assessment  of  board  of  equalization,  see 
Taxes,  197. 

On  validity  of  tax  sale,  see  Taxes,  210. 

On  appointment  of  trustee,  see  Trusts,  67. 


COLLATERAL  CONTRACTS. 

Statute  of  frauds  as  to,  see  Contracts,  I.  e,. 
2. 


COLLATERAL  INHERITANCE   TAX. 

See  Taxes,  V. 


COLLATERAL  ISSUE. 

Trial  of,  upon  affidavits,  see  Trial,  2. 


COLLATERAL    MEMORANDUM. 

Reading  into  contract  of  sale,  see  Sale,  2^ 


COLLATERAL    RELATIVES. 

Damages  recoverable  by,  for  negligent  killc 

ing  of  relative,  see  Damages,  390. 
Tax  on  inheritance  by,  see  Taxes,  V. 


COLLATERAL   SECURITY. 

See  Pledge  and  Collatebal  SECimiTr.. 

i. -'..-,.. -i^.;...!  :^:..-k  i^^sia 


COLLECTION  AGENCY— COLLISION. 


4S3 


COLLECTION  AGENCY. 

Validity  of  state  license  of,  see  Commebce, 
97. 


COLLECTION  EXPENSES. 

Making  allowance  for,  in  fixing  value  of 
gas  plant  for  rate  purposes,  see  Gas, 
32. 


COLLECTIONS. 


By  attorneys,  see  Attorneys,  36,  40,  41. 
By  bank,  see  Banks,  IV.  b. 
By  agent,  see  Principal  and  Agent,  38. 
Of   claims,   construction   of  contract  as  to, 

see  Contracts,  358. 
Of  taxes,  see  Taxes,  III.  e,  V.  4. 


COLLEGES. 


Mandamus  to  compel  issuance  of  diploma, 
see  Appeal  and  Ebbob,  429;  Manda- 
mus, 92-94. 

Persons  attending,  as  "school  children"  en- 
titled to  reduced  fare  on  street  railways, 
see  Carriers,  1030. 

Damages  for  taking  property  of,  for  rail- 
road purposes,  see  Damages,  533. 

Exercise  of  power  of  eminent  domain  by,  see 
Eminent  Domain,  10. 

Belonging  to  state,  see  State  Institu- 
tions; State  Universities. 

Barber  colleges,  see  Statutes,  117,  160. 

See  also  Medical  Colleges. 

1.  A  rule  by  a  college  which  provides 
board  and  lodging  for  its  pupils,  forbidding 
them  to  patronize  restaurants  not  controlled 
by  it,  is  not  unreasonable.  Gott  v.  Berea 
College,  51:  17,  161  S.  W.  204,  156  Ky.  376. 

2.  The  proprietor  of  a  restaurant  who 
is  not  a  student  in  a  college,  and  has  no 
children  as  such  students,  has  no  right  of 
action  against  the  college,  for  forbidding 
pupils  to  patronize  his  restaurant.  Gott  v. 
Berea  College,  51:  17,  161  S.  W.  204,  156 
Ky.  376.  (Annotated) 
Dismissal  of  student. 

3.  One  who  is  admitted  to  a  college, 
and  pays  the  fees  for  the  first  year's  in- 
struction, has  a  contract  right  to  be  per- 
mitted to  continue  as  a  student  until  he, 
in  regular  course,  attains  the  diploma  and 
degree  which  he  seeks,  and  which  the  in- 
stitution is  authorized  to  confer;  and  he 
cannot  be  arbitrarily  dismissed  at  the  close 
of  a  year,  merely  because  he  is  obnoxious 
to  other  students  on  account  of  his  race. 
Booker  v.  Grand  Rapids  Medical  College, 
24:  447,  120  N.  W.  589,  156  Mich.  95. 
Digest  1-52  L.R.A.(N.S.) 


COLLISION. 

Admiralty  jurisdiction  of  suit  arising  from, 
see  Admiralty,  1,  2,  5. 

Between  bridge  and  vessel,  see  Admiralty, 
1,  2;  Appeal  and  Error,  61. 

Injury  to  passenger  by,  see  Carrieirs,  210- 
213. 

Presumption  of  negligence  from,  see  Evi- 
dence, 348,  350-356. 

With  automobile,  insurance  against  loss  by, 
see  Insurance,  677,  678. 

Imputing  rower's  negligence  to  passenger, 
see  Negligence,  259. 

Liability  of  pilot  for,  see  Pilots. 

Right  of  vessel  in  fault  to  salvage,  see  Sal- 
vage, 2,  5. 

1.  Dwellers  on  the  thickly  settled  banks 
of  a  navigable  river  have  as  much  right  to 
cross  from  one  bank  to  the  other  in  a  fog 
as  steam  vessels  have  to  traverse  the  river 
at  such  place  during  a  fog.  Quinette  v. 
Bisso,  5:  303,  136  Fed.  825,  69  C.  C-  A.  503. 

(Annotated) 

2.  The  noise  made  by  patent  rowlocks 
cannot  be  accepted  as  the  equivalent  of  the 
fog  signal  required  by  the  pilot  rules  to  be 
given  by  a  fog  horn;  and  the  local  custom 
upon  the  subject  is  immaterial.  Quinette  v. 
Bisso,  5:  303,  136  Fed.  825,  69  C.  C.  A.  503. 

3.  A  tug  does  not  discharge  its  full  duty 
to  small  craft  which  may  be  in  its  way  on  a 
river  by  giving  fog  signals  when  proceeding 
in  a  fog  so  dense  that  they  can  be  seen  only 
a  few  feet  away;  but  there  must  also  be 
slow  speed  and  the  utmost  caution.  Quin- 
ette V,  Bisso,  5:  303,  136  Fed.  825,  69  C.  C. 
A.  503.  (Annotated) 

4.  Steerageway  is  all  that  a  tug  is  en- 
titled to  maintain  in  a  fog  so  thick  that 
small  craft  can  be  seen  only  a  few  feet 
away,  at  a  point  where  such  craft  are  likely 
to  be  found,  and  at  a  time  when  the  master 
is  unable  to  tell  how  far  he  is  from  the 
bank,  or  accurately  to  ascertain  his  course. 
Quinette  v.  Bisso,  5:  303,  136  Fed.  825,  69 
C.  C.  A.  503. 

5.  The  act  of  a  passenger  in  consenting 
to  be  rowed  across  a  river  in  a  fog  without 
the  presence  on  board  of  a  fog  signal  will 
not  prevent  recovery  for  his  death  in  case 
the  boat  is  run  down  by  the  negligence  of  a 
tug,  where  his  negligent  act  cannot  be  con- 
sidered the  proximate  cause  of  the  accident. 
Quinette  v.  Bisso,  5:  303,  136  Fed.  825,  69  C. 
C. A.  503. 

6.  Property  injured  by  a  vessel  need 
not  be  transportable  to  come  within  a  stat- 
ute making  all  vessels  liable  for  injuries 
committed  by  them  to  persons  or  property 
within  the  state,  but  the  statute  extends  to 
such  property  as  a  bridge.  West  v.  Martin, 
21:  324,  97  Pac.  1102,  51  Wash.  85. 

7.  The  owners  of  a  tug  cannot  recover 
damages  for  loss  of  towage  remuneration 
from  the  owners  of  a  vessel  which  has  negli- 
gently collided  with  and  sunk  the  tow,  the 
loss  of  such  remuneration  not  being  damage 
to  the  plaintiffs  which  was  the  direct  conse- 
quence of  the  negligence,  so  as  to  be  recover- 
able in   law.     La  Soci6t6  Anonyme  de  Re- 


484 


COLLUSION— COMMERCE. 


morqua<^e  a  Hfilice  v.  Bennetts,  3  B.  R.  C. 
138,  [1911]  1  K.  B.  243.  Also  Reported 
in  80  L.  J.  K.  B.  N.  8.  228,  27  Times  L.  R. 
77,  16  Com.  Gas.  24. 


COLLUSION. 


In  divorce  suit,  see  Divorce  and  Separa- 
tion, IV. 

Sufficiency  of  evidence  of,  see  Evidence, 
2091. 

Vacation  of  judgment  secured  by,  see  Judg- 
ment, 341,  342. 

Necessity  of  stating  facts  to  show,  see 
Pleading,  528. 

In  institution  of  garnishment  proceeding, 
see  Prohibition,  13,  14. 


-         COI^OR  BLINDNESS. 

^Evidence  on  question  of  color  blindness  of 

employee,  see  Evidence,  2027. 
As   sickness   within   meaning  of   employer's 
''        contract  to  pay  employees  sick  benefits, 
see  Master  and  Servant,  85. 

♦-•-♦ 


COLORED  PERSONS. 

See  Negroes. 

♦-•-♦ 


COLOR   OF   TITLE. 

Right  to  claim  compensation  for  improve- 
ments on  land  held  under,  see  Improve- 
ments. 

In  general,  see  Adverse  Possession,  I.  i. 


COMBINATIONS. 


Illegal  combination  of  employers,  see  Black- 
listing. 

Of  workmen,  see  Labor  Organizations. 

Illegal  combinations  generally,  see  Monopo- 
ly AND  Combinations. 

Patent  on,  see  Patents,  II.  b. 


<♦♦» 


COMBUSTIBLE  MATERIAL. 

'Damages  for  breach  of  warranty  as  to,  see 
Damages,  185,  186. 


COMITY. 

Right    of    court    to    take    jurisdiction    on 
ground  of,  see  Courts,  212.  •   -  '  ^ 

Digest  1-52  L.R.A.(N.S.) 


Entertaining  on  ground  of,  claim  against 
decedent's  estate  in  favor  of  citizen  of 
other  state,  see  Executors  and  Ad- 
ministrators, 140, 

Recognition  of  decree  of  other  state,  see 
Judgment,  IV.  b. 

Laches  in  invoking  principles  of  comity  to 
establish  rights  of  adopted  child,  see 
Limitation  of  Actions,  54. 

Effect  on  use  and  control  of  waters,  see 
Waters,  1. 

See  also  Conflict  of  Laws;  Courts. 


COMMAND. 


Contributory  negligence  in  obeying,  see 
Master  and  Servant,  651-058,  693, 

Assumption  of  risk  bj'  compliance  with,  see 
Master  and  Servant,  II.  b,  6. 


COMMERCE. 


/.  State  and  Federal  power  general- 
ly,   1-28. 
II.  Regulating  carriers  and  transpor- 
tation, 29—93. 

a.  In  general,  29—42. 

b.  Vessels,   4=3.  '°^^ 

c.  Railroad  companies,  44—93. 

d.  Licenses  and  taxes. 
III.  Limiting  exports  from  state. 

IV.  Regulating,  taxing,  and  licensing 
sales,  manufacturing,  and 
other  business,  94—143. 

a.  In  general,   94—128. 

b.  In     original     pacleages,     129— 

137. 

c.  Sales  by  peddlers  and  agents; 

by  sample,  138—143. 
V.  Taxation  of  subjects  of  commerce; 
import   and  export   duties,    144 — 
152. 

Exclusiveness    of    jurisdiction    as    to,    see 

Courts,  293. 
Sufficiency   of   proof   of   criminal   intent   to 

violate    interstate    commerce    act,    see 

Criminal  Law,  11. 
Telegraph  line  along  railroad  right  of  way 

as  burden  on  interstate  commerce,  see 

Eminent  Domain,  41. 
Judicial  notice   that  carrier   is  engaged   in 

interstate  commerce,  see  Evidence,  34. 
Burden    of   proving   that   carriage   contract 

violates    interstate    commerce    law,    see 

Evidence,  527. 
Presumption  and  burden  of  proof  as  to  what 

is  subject  to  commerce,  see  Evidence, 

652. 
As  to  powers  of  Interstate  Commerce  Com- 
mission,    see     Interstate     Commerce 

Commission. 
Attachment  of  foreign  railroad  cars  as  in- 
terference   with    commerce,     see    Levy 

AND  Seizure,  15,  16. 
Conspiracy  in   restraint   of,  see  Monopoly 

AND    Comrixations,   II.. /,  i  I :   ,v-i.::; 


COMMERCE,  I. 


485 


Resort  to  debates  in  Congress  in  determin- 
ing meaning  of  interstate  commerce  act, 
see  Statutes,  85. 

7.   State  and  Federal  power  generally. 

(See  also  same  heading  in  Digest  L.R.A, 
1-10.) 

1.  The  plenary  power  to  regulate  inter- 
state and  foreign  commerce,  conferred  upon 
Congress  by  the  Constitution,  authorizes  it 
to  enact  legislation  affecting  intrastate  com- 
merce so  far  as  necessary  to  regulate  inter- 
state commerce  effectually  and  completely. 
United  States  v.  Colorado  &  N.  W.  R.  Co. 
15:  167,   157  Fed.  321,  85  C.  C.  A.  27. 

2.  The  power  of  Congress  over  inter- 
state transportation  is  complete  in  itself; 
and  Congress,  as  an  incident  to  it,  may 
adopt  not  only  the  means  necessary  but  con- 
venient to  its  exercise,  and  such  means  may 
have  the  quality  of  police  regulations.  Hoke 
V.  United  States,  43:  906,  33  Sup.  Ct.  Rep. 
281,  227  U.  S.  308,  57  L.  ed.  523. 

3.  If  a  congressional  enactment  is  a 
valid  exercise  of  the  power  of  Congress  un- 
der the  commerce  clause  of  the  Federal  Con- 
stitution, how  it  may  affect  persons  or  states 
is  not  material.  Hoke  v.  United  States, 
43:  906,  33  Sup.  Ct.  Rep.  281,  227  U.  S.  308, 
67  L.  ed.  523. 

4.  No  question  with  reference  to  the 
power  of  Congress  to  enact  a  regulation  of 
interstate  commerce  can  arise  if  the  regu- 
lating act  be  one  directly  applicable  to 
such  commerce,  not  obnoxious  to  any  other 
provision  of  the  Federal  Constitution,  and 
reasonably  adapted  to  the  purpose  by  rea- 
son of  legitimate  relation  between  such  com- 
merce and  the  rule  provided.  Atlantic  C. 
L.  R.  Co.  V.  Riverside  Mills,  31:  7,  31  Sup. 
Ct.  Rep.  164,  219  U.  fi.  186,  55  L.  ed.  167. 

5.  A  regulation  of  interstate  commerce 
which  would  be  valid  if  rested  upon  the 
common  law  of  the  state  is  not  less  valid 
because  made  by  a  state  statute.  Western 
U.  Teleg.  Co.  v.  Commercial  Milling  Co. 
36:  220,  31  Sup.  Ct.  Rep.  59,  218  U.  S.  406, 
54  L.  ed.  1088. 

6.  The  state  may  punish  a  conspiracy 
to  interfere  with  competition  in  the  sale  of 
property  already  stored  within  the  state,  al- 
though the  competition  is  anticipated  from 
articles  to  be  imported  for  that  purpose. 
Standard  Oil  Co.  v.  State,  10:  1015,  100  S. 
W.   705,   117   Tenn.   618. 

7.  A  statute  requiring  all  county  print- 
ing, binding,  and  stationery  work  to  be 
done  in  the  county  for  which  the  work  is 
intended,  where  there  are  practical  facilities 
there  for  doing  the  same,  unless  the  charge 
made  be  greater  than  that  made  to  private 
individuals,  applies  merely  to  the  doing 
of  the  work,  and  does  not  prevent  the  let- 
ting of  a  contract  to  a  nonresident,  and 
is  therefore  not  an  interference  with  or 
regulation  of  commerce,  and  not  repugnant 
to  th3  commerce  clause  of  §  8,  art.  1,  of  the 
Federal  Constitution.  Re  Gemmill,  41: 
711,  119  Pac.  298,  20  Idaho,  732. 

Digest  1-52  L.R.A.(N.S.) 


AVhat  constitutes  interstate  com- 
merce. 

Transportation  of  intoxicating  liquor  as, 
see  Carriers,  778;  Criminal  Law,  1; 
Intoxicating  Liquors,  87. 

See  also  infra,  66-70,  78,  120,  121, 

8.  The  sale  by  a  foreign  corporation, 
within  a  state,  of  unissued  shares  of  its 
capital  stock,  is  not  a  transaction  of  in- 
terstate commerce.  Southwestern  Slate  Co. 
V.  Stephens,  29:  92,  120  N.  W.  408,  139 
Wis.  616. 

9.  The  transfer  of  stock  certificates  at  a 
point  within  the  state  does  not  involve  in- 
terstate commerce,  although  they  represent 
shares  in  a  foreign  corporation  and  are 
owned  by  nonresidents,  where  it  does  not  ap- 
pear that  either  the  certificate,  or  the  mon- 
ey, is  brought  from  or  taken  to  a  foreign 
state  because  of  the  transaction.  People 
ex  rel.  Hatch  v.  Reardon,  8:  314,  77  N.  E. 
970,   184  N.   Y.   431. 

10.  Commerce  is  conducted  among  the 
states,  within  the  meaning  of  the  Federal 
Constitution,  by  a  corporation  engaged  in 
imparting  instruction  by  correspondence, 
whose  business  involves  the  solicitation  of 
students  in  other  states  by  local  agents, 
who  are  also  to  collect  and  forward  to  the 
home  office  the  tuition  fees,  and  the  sys- 
tematic intercourse  between  the  corpora-' 
tion  and  its  scholars  and  agents,  wherever 
situated,  and  the  transportation  of  the  need- 
ful books,  apparatus,  and  papers.  Interna- 
tional Text-Book  Co.  v.  Pigg,  27:  493,  30 
Sup.  Ct.  Rep.  481,  217  U.  S.  91,  54  L.  ed.  678. 

(Annotated) 
/-dvertisements    of    intoxicating    liq- 
uors for  sale  in  other  state. 

11.  Since  the  passage  by  Congress  of  the 
Wilson  act,  a  state  may  forbid  the  publica- 
tion, within  its  limits,  of  advertisements  of 
the  keeping  for  sale  of  intoxicating  liquors 
at  places  in  other  states.  State  v.  J.  P. 
Bass  Publishing  Co.  20:  495,  71  Atl.  894,  104 
Me.  288.  - 

Grazing   fee   on   sheep    entering   state. 

12.  A  statute  which  imposes  a  grazing 
fee  on  all  sheep  entering  the  state,  while  no 
like  fee  is  imposed  on  sheep  produced  with- 
in the  state,  unduly  interferes  with  inter- 
state commerce  by  levying  a  tax  wliich  dis- 
criminates against  sheep  imported  from  an- 
other state.  State  v.  Butterfield  Live  Stock 
Co.  26:  1224,  106  Pac.  455,  17  Idaho,  441. 
State  lien  on  vessel  engaged  in  inter- 
state   commerce. 

13.  The  creation  and  enforcement  of  a 
lien  for  a  nonmaritime  tort  against  a  for- 
eign vessel  engaged  in  interstate  commerce, 
under  a  state  statute,  which  embraces  all 
vessels,  whether  domestic  or  foreign,  and 
whether  engaged  in  intrastate  or  inter- 
state commerce,  does  not  offend  against  the 
'commerce  clause  of  the  Federal  Constitu- 
tion. Martin  v.  West,  36:  592,  32  Sup.  Ct. 
Rep.  42,  222  U.  S.  191,  56  L.  ed.  159. 
Navigable   waters. 

Relative "  right  of  state  and  United  States 
in  navigable  waters,  see  Waters,  I.  b. 

Rights  of  navigation  as  between  public  and 
individual,  see  Waters,  I.  c,  5 


486 


COMMERCE,  I. 


State   rejsriilation   or   control   generally,   see 
Waters,  38-46. 

14.  A  state,  or  a  municipality  acting 
under  its  authority,  may  not,  consistently 
with  the  commerce  clause  of  the  Federal 
Constitution,  require  a  Canadian  corpora- 
tion operating  a  ferry  over  a  boundary 
stream  lying  between  such  state  and  Can- 
ada, to  take  out  a  license  and  pay  a  license 
fee  as  a  condition  precedent  to  receiving 
and  landing  persons  and  property  at  its 
wharf  in  such  municipality.  Sault  Ste. 
Marie  v.  International  Transit  Co.  52:  574, 
34  Sup.  Ct.  Rep.  826,  234  U.  S.  333,  58 
L.  ed.  1337.  (Annotated) 

15.  The  provision  of  N.  J.  act  May  11, 
1905  (P.  L.  1905,  p.  461),  which  forbids 
the  abstraction  of  water  from  natural 
streams,  lakes,  and  ponds  for  transporta- 
tion beyond  the  bounds  of  the  state,  is  not 
in  violation  of  the  interstate  commerce 
clause  of  the  Federal  Constitution,  since 
water  abstracted  contrary  to  the  statu- 
tory prohibition  cannot  legitimately  enter 
into  interstate  commerce.  McCarter  ex  rel. 
Kummel  v.  Hudson  County  Water  Co. 
14:197,  65  Atl.  489,  70  N.  J.  Eq.  695. 
Quarantine   or  inspection  lantrs. 

16.  A  statute  which  imposes  a  grazing 
fee  on  all  sheep  entering  the  state  cannot  be 
upheld  as  an  inspection  law,  merely  because 
it  provides  that  such  fees  shall  be  paid  into 
the  live  stock  sanitary  fund,  where  no  like 
fee  is  imposed  upon  sheep  produced  within 
the  state,  and  no  duty  is  thereby  imposed 
on  the  state  live  stock  sanitary  board  in  re- 
turn for  the  levy  of  such  assessment, — es- 
pecially where  full  provision  is  otherwise 
made  for  inspection  of  all  sheep  either 
brought  or  produced  within  the  state,  and' 
a  special  levy  made  on  all  alike  for  the  pur- 
pose of  paying  therefor.  State  v.  Butter- 
field  Live  Stock  Co.  26:  1224,  106  Pac.  455, 
17  Idaho,  441. 

17.  No  unconstitutional  interference  with 
interstate  commerce  is  effected  by  a  state 
penal  statute  providing  that  domestic  ani- 
mals imported  into  the  state  must  be  exam- 
ined for  certain  contagious  and  infectious 
diseases,  when  the  sole  purpose  of  the  act 
is  to  protect  the  public  health  and  the  health 
of  domestic  animals.  Evans  v.  Chicago  & 
N.  W.  R.  Co.  26:  278,  122  N.  W,  876,  109 
Minn.  64.  (Annotated) 

18.  A  municipal  corporation  cannot,  in 
view  of  the  commerce  clause  of  the  Federal 
Constitution,  require  all  meat  intended  for 
its  markets  to  be  inspected  on  the  hoof  by 
its  own  officers.  Carter  v.  Green,  31:1055, 
53  So.  729,  127  La.  490. 

19.  A  municipal  ordinance  which  imposes 
upon  packing  houses  and  importers  a  fee 
for  inspection  of  meats  imported  from  an- 
other state  unlawfully  interferes  with  in- , 
terstate  commerce.  Armour  &  Co.  v.  Au- 
gusta, 27:  676,  67  S.  E.  417,  134  Ga.   178. 

(Annotated) 

20.  A  municipal  ordinance  creating  a 
packing  house  inspector  and  providing  that 
he  should  visit  all  packing  houses  daily  and 
all  other  places  of  importers  of  meat  stuff 
not  otherwise  provided  for,  and  secure  from 
Digest  1-52  L.R,A,(N.S.) 


them  their  bills  of  lading,  "for  the  purpose 
of  determining  whether  or  not  the  ship- 
ments have  made  proper  time,  and  whether 
cars  containing  such  meat  stuff  have  been 
properly  iced  during  transit,"  unlawfully  in- 
terferes with  interstate  commerce.  Armour 
&  Co.  V.  Augusta,  27:  676,  67  S.  E.  417,  134 
Ga.    178. 

State  attachment  or  garnishment. 
See  also  Levy  and  Seizure,  15,  16. 

21.  Attaching  a  car  of  a  foreign  rail- 
road company  when  found  idle  within  the 
state,  under  a  state  statute  permitting  it 
to  enable  local  creditors  to  collect  their 
debts,  is  not  an  unlawful  interference  with 
interstate  commerce.  De  Rochemont  v. 
New  York  C.  &  H.  R.  R.  Co.  29:  529,  71 
Atl.  868,  75  N.  H.  158. 

22.  Cars  owned  by  a  foreign  railway 
company,  which  have  temporarily  come  into 
the  state  in  the  course  of  interstate  trans- 
portation, through  the  agency  of  other  car- 
riers, are  subject  to  attachment  under  the 
state  laws,  despite  the  provisions  of  the  in- 
terstate commerce  act  and  of  U.  S.  Rev. 
Stat.  §  5258,  U.  S.  Comp.  Stat.  1901,  p. 
3564,  securing  continuity  of  transportation. 
Davis  v.  Cleveland,  C.  C.  &  St.  L.  R.  Co. 
27:  823,  30  Sup.  Ct.  Rep.  463,  217  U.  S.  157, 
54  L.  ed.  708. 

23.  A  freight  car  received  by  a  domestic 
railroad  company  from  a  connecting  com- 
pany of  another  state  while  loaded  with 
freight,  under  a  contract  that,  instead  of 
being  unloaded  and  reloaded  at  the  point 
of  intersection  without  the  state,  it  may  be 
taken  to  its  destination  within  the  state, 
there  to  be  unloaded  and  afterwards  reload- 
ed and  returned,  is  not  exempt  from  attach- 
ment sought  to  be  executed  by  service  of 
summons  of  garnishment  for  the  collection 
of  a  debt  alleged  to  be  due  by  the  connect- 
ing carrier,  upon  the  ground  that  the  im- 
pounding of  the  car  is  such  an  interference 
with  interstate  commerce  as  to  violate  the 
commerce  clause  of  the  Constitution  of  the 
United  States  (art.  1,  §  8,  If  3),  or  U.  S. 
Rev.  Stat.  §  5258,  authorizing  railroad  com- 
panies to  transport  passengers  and  freight 
on  their  way  from  any  state  to  another 
state,  and  to  connect  with  the  roads  of  such 
other  state  so  as  to  form  continuous  lines 
of  transportation.  Southern  Flour  &  Grain 
Co.  V.  Northern  P.  R.  Co.  9:  853,  56  S.  E. 
742,  127  Ga.  626. 

24.  That  a  car  of  a  foreign  corporation 
which  has  come  into  the  state  loaded  with 
freight  on  an  interstate  shipment,  to  be  re- 
turned promptly  subject  to  a  per  diem  de- 
murrage for  delay,  and  to  take  back  another 
load  of  freight  if  ready  for  shipment  with- 
in a  reasonable  time,  is  permitted  to  stand 
in  the  yard  for  a  few  days  after  being  un- 
loaded, does  not  render  it  subject  to  attach- 
ment. Seibels  v.  Northern  C.  R.  Co.  16: 
1026,  61  S.  E.  435,  80  S.  C.  133. 

(Annotated) 
"ELovr  far   Federal   potver   is   exclnsive 

generally. 
See  also  infra,  60,  74,  76. 

25.  Any  power  which  a  state  has  over  in- 
terstate commerce  becs^use  of  congressional 


COMMERCE,  II.  a. 


487 


inaction  ceases  to  exist  from  the  moment 
that  Congress  exerts  its  paramount  author- 
ity over  the  subject.  Chicago,  R.  I.  &  P. 
R.  Co.  V.  Hardwick  Farmers'  Elevator  Co. 
46:  203,  33  Sup.  Ct.  Rep.  174,  226  U.  S.  426, 
57  L.  ed.  284. 
Congressional  inaction. 

20.  A  state  has  the  right  to  adopt  regu- 
lations to  prevent  the  spread  of  diseases 
among  plants,  Ctjngress  not  having  as.sumed 
charge  of  the  matter  as  involved  in  inter- 
state commerce.  State  ex  rel.  Hawley  v. 
Nelson,  15:  138,  115  N.  W.  93,  22  S.  D.  23. 

(Annotated) 

27.  A  state  statute  limiting  the  hours 
which  railroad  employees  may  labor  during 
a,  day  was  not  affected  by  the  act  of  Con- 
gress regulating  the  same  matter  prior  to 
the  time  the  latter  act  took  effect.  Lloyd 
V.  North  Carolina  R.  Co.  45:  378,  66  S.  E. 
604,   151   N.  C.  536. 

Police  power  of  state. 
See  also  infra,  44,  48. 

28.  An  act  of  Congress  originating  in 
its  power  to  regulate  interstate  commerce 
does  not  annul  an  act  of  the  state  originat- 
ing in  its  police  power,  unless  there  is  such 
a  conflict  between  the  two  as  that  the  en- 
forcement of  the  act  of  the  state  would  be 
to  frustrate  the  operation  of  the  act  of  Con- 
gress, and  to  refuse  to  its  provisions  their 
natural  effect.  Chicago,  R.  I.  &  P.  R.  Co. 
V.  Beattv,  42:  984,  118  Pac.  367,  126  Pac. 
736,  34  bkla.  321. 

II.   Regulating  carriers  and   transpor- 
tation. 

a.  In  general. 

{See  also   same  heading   in  Digest  L.R.A. 
1-10.) 

Combination  interfering  with,  see  Monopo- 
ly AND  Combinations,  II.  d. 

Telegrapli  business. 

29.  There  is  no  unconstitutional  inter- 
ference with  interstate  commerce  by  requir- 
ing an  interstate  telegraph  company,  as  a 
condition  to  receiving  a  license  to  place 
polea  to  carry  its  wires  in  the  city  streets, 
to  permit  the  city  to  place  on  the  poles, 
without  compensation,  wires  necessary  for 
its  fire  alarm  and  electric  lighting  systems, 
where  the  detriment  to  the  telegraph  com- 
pany is  no  greater  than  the  reasonable  cost 
of  inspecting  the  poles  necessary  to  keep 
the  streets  safe  for  travelers.  Postal 
Teleg.-Cable  Co.  v.  Chicopee,  32:  997,  93  N. 
E.  927,  207  Mass.  341. 

30.  Interstate  commerce  is  not  uncon- 
stitutionally regulated  by  a  state  statute 
under  which,  as  construed  by  the  state 
courts,  a  telegraph  company  cannot  limit 
its  liability  for  its  negligent  failure  to  de- 
liver a  telegram  addressed  to  a  person  in 
another  state.  Western  U.  Teleg.  Co.  v. 
Commercial  Milling  Co.  36:  220,  31  Sup.  Ct. 
Rep,  59,  218  U.  S.  406,  54  L.  ed.  1088. 

(Annotated) 
Digest  1-52  L.R.A.(N.S.) 


Street  railway  companies. 

31.  Street  railroads  carrying  passengers 
across  a  state  line  are  not  gov(*rned  by  the 
provisions  of  the  interstate  commerce  act 
of  February  4,  1887,  which  in  terms  applies 
to  carriers  engaged  in  the  transportation 
of  passengers  or  property  by  "railroad." 
Omaha  &  C.  B.  Street  R.  Co.  v.  Interstate 
Commerce  Commission,  46:  385,  33  Sup.  Ct. 
Rep.  890,  230  U.  S.  324,  57  L.  ed.  1501. 

(Annotated) 

Express  companies. 

Power  of  state  to  compel  express  company 
to  make  free  deliveries,  see  also  Car- 
riers, 991. 

32.  A  state  statute  requiring  express 
companies  to  make  free  deliveries  of  parcels 
committed  to  them  for  transportation  is,  as 
applied  to  interstate  shipments,  invalid  as 
an  attempted  regulation  of  interstate  com- 
merce. State  ex  rel.  Railroad  Commission 
V.  Adams  Exp.  Co.  19:  93,  85  N.  E.  337,  966, 
171  Ind.  138.  (Annotated) 

33.  A  state  statute  requiring  express 
companies  to  make  free  delivery  of  parcels 
committed  to  their  custody  for  transporta- 
tion is  not  in  aid  of  the  common  law  to  such 
an  extent  that  it  cannot  be  said  to  be  in  con- 
flict with  the  Federal  statutes  governing 
the  regulation  of  rates  of  interstate  ship- 
ments. State  ex  rel.  Railroad  Commission  v. 
Adams  Exp.  Co.  19:  93,  85  N.  E.  337,  966, 
171  Ind.  138. 

34.  A  state  cannot  compel  express  com- 
panies to  make  free  deliveries,  within  cities 
of  a  certain  class,  of  interstate  shipments 
committed  to  their  care,  in  view  of  the  rail- 
road rate  law  of  Congress  requiring  the  fil- 
ing by  transportation  companies  with  the 
Interstate  Commerce  Commission  of  sched- 
ules of  rates  for  transportation  or  any  serv- 
ice connected  therewith,  and  empowering  the 
commission  to  determine  what  regulations  in 
respect  to  transportation  are  reasonable,  and 
to  require  the  carrier  to  conform  to  such 
regulations.  State  ex  rel.  Railroad  Com- 
mission V.  Adams  Exp.  Co.  19:  93,  85  N.  E. 
337,  966,  171  Ind.  138. 

Penalty  for  failure  to  settle  claim. 

35.  Imposing  a  reasonable  penalty  upon  a 
carrier  for  failure  to  settle  a  claim  for 
goods  lost  while  in  its  possession  for  inter- 
state transportation  does  not  unlawfully  in- 
terfere with  interstate  commerce  in  the  ab- 
sence of  any  congressional  legislation  to  the 
contrary.  Morris  v.  Southern  Exp.  Co.  15: 
983,  59  S.  E.  667,  146  N.  C.  167. 

(Annotated) 
Transportation  of  oil  or  gas. 

36.  Natural  gas,  when  reduced  to  pos- 
session, ia  a  commodity  which  belongs  to 
the  owner  of  the  land,  and  may  be  the  sub- 
ject of  both  intrastate  and  interstate  com- 
merce. West  V.  Kansas  Natural  Gas  Co. 
35:  1 193,  31  Sup.  Ct.  Rep.  564,  221  U.  S.  229, 
55  L.  ed.  716. 

37.  Prohibiting  the  construction  of  pipe 
lines  for  natural  gas,  or  the  transportation 
of  the  gas  by  such  lines  except  by  domestic 
corporations,  whose  charters  shall  provide 
that  the  gas  shall  only  ha  transported  be- 
tween points  in  the  state,  and  shall  not  be 


490 


COMMERCE,  II.  c. 


way  carriers  and  their  employees  engaged 
in  interstate  coinraeree,  by  enacting  the  em- 
ployers' liability  act  of  April  22,  1908, 
which  abrogates  the  fellow-servant  rule,  ex- 
tends the  carrier's  liability  to  cases  ot 
death,  and  restricts  the  defenses  of  contrib- 
utory negligence  and  assumption  of  risk, 
since  no  one  has  any  vested  right  in  any 
rule  of  the  common  law,  and  the  natural 
tendency  of  such  changes  is  to  promote  the 
safety  of  the  employees  and  to  advance  the 
commerce  in  which  they  are  engaged.  Mon- 
dou  V.  New  York,  N.  H.  &  H.  R.  Co.  38: 
44,  32  Sup.  Ct.  Rep.  169,  223  U.  S.  1,  56  L. 
ed.  327. 

59.  Congress,  in  the  exercise  of  its  pow- 
er over  interstate  commerce,  may  regulate 
the  relations  of  railway  carriers  and  their 
employees  while  both  are  engaged  in  such 
commerce,  subject  always  to  the  limita- 
tions prescribed  in  the  Federal  Constitu- 
tion, and  to  the  qualification  that  the  par- 
ticulars in  which  those  relations  are  regu- 
lated must  have  a  real  or  substantial  con- 
nection with  the  interstate  commerce  in 
which  the  carriers  and  employees  are  en- 
gaged. Mondou  V.  New  York,  N.  H.  &  H. 
R.  Co.  38:  44,  32  Sup.  Ct.  Rep.  169,  223  U. 
S.  1.  56  L.  od.  327. 

60.  The  laws  of  the  several  states,  in  so 
far  as  tliey  cover  the  same  field,  were 
superseded  by  the  enactment  by  Congress 
of  the  employers'  liability  act  of  April  22, 
1908,  regulating  the  liability  of  interstate 
railway  carriers  for  the  death  or  injury  of 
their  employees  while  engaged  in  interstate 
commerce.  Mondou  v.  New  York,  N.  H. 
&  H.  R.  Co.  I38:  44,  32  Sup.  Ct.  Rep.  169,  223 
U.  S.  1,  56  L.  ed.  327. 

61.  The  distribution  of  the  damages  re- 
coverable, under  the  act  of  April  22,  1908, 
from  an  interstate  railway  carrier,  for  the 
death  of  an  employee  while  engaged  in  in- 
terstate commerce,  is  governed  by  the  pro- 
visions of  that  statute,  which  necessarily 
supersede  &.ny  applicable  state  legislation. 
Mondou  V.  New  York,  N.  H.  &  H.  R.  Co. 
38:  44,  32  Sup.  Ct.  Rep.  169,  223  U  S.  1, 
.56  L.  ed.  327. 

62.  No  recovery  can  be  had  under  state 
statutes,  for  the  death  of  a  railroad  em- 
ployee  under    circumstances    rendering   ap- 

flicable  the  Federal  employers'  liability  act. 
llinois  C.  R.  Co.  v.  Dohertv,  47:  31,  155  S. 
W.  1119,  153  Ky.  363.  '       (Annotated) 

Limiting      speed      w^ithin      corporate 
limits. 

63.  An  ordinance  limiting  the  speed  of 
trains  on  an  interstate  railway  which  car- 
ries United  States  mail  to  10  miles  an  hour 
within  the  corporate  limits  of  the  mu- 
nicipality, Avhich  is  passed  for  the  safety  of 
the  public  and  the  protection  of  life  and 
property,  is  not  void  as  imposing  an  unrea- 
sonable restriction  upon  interstate  com- 
merce and  the  speedy  transportation  of  the 
mail.  Peterson  v.  State,  14:292,  112  N.  W. 
306,  79  Neb.  132.  (Annotated) 
Requiring  lights  at  street  crossings. 

64.  Requiring  an  interstate  railroad  com- 
pany to  light  its  crossings  in  a  city  does 
not  interfere  with  its  rights  as  an  inter- 
Digest  1-52  L.R.A.(N.S.) 


state  road,  although  the  eflFect  will  be  to 
compel  those  in  charge  of  the  engine  to 
run  slowly  and  cautiously  in  approaching 
the  light  to  prevent  its  interfering  with  their 
duty  to  keep  a  lookout  along  the  track  by 
obscuring  vision  past  it.  Pittsburg,  C.  C. 
&  St.  L.  R.  Co.  V.  Hartford  City,  20:  461,  82 
N.  E.  787,  170  Ind.  674. 
Headlights  on  locomotives. 

65.  Requiring  railroad  companies  to 
maintain  electric  headlights  of  a  specific 
character  on  their  locomotives  does  not  in- 
terfere with  interstate  commerce,  although 
in  case  other  states  required  a  different 
kind  of  lights  there  might  be  delay  and 
expense  at  the  boundary  line  in  making  the 
change  from  one  to  the  other  on  interstate 
trains.  Atlantic  Coast  Line  R.  Co.  v.  State, 
32:  20,  69  S.  E.  725,  135  Ga.  545. 

(Annotated) 
When  transportation  is  interstate. 
Transportation  of  liquor  as  interstate  com- 
merce, see  Criminal  Law,  1;   Intoxi- 
cating Liquors,  87. 

66.  An  interstate  railroad,  when  engaged 
in  moving  cars  of  water  or  coal  over  its  line 
from  one  state  into  another  for  use  in  its 
own  engines,  is  engaged  in  "interstate  com- 
merce." Barker  v.  Kansas  City,  M.  &  0. 
R.  Co.  43:  1121,  129  Pac.  1151,  88  Kan.  767. 

67.  Every  carrier  who  transports  goods 
en  route  from  a  commencement  in  one  state 
to  a  prescribed  destination  in  another, 
through  any  part  of  such  continuous  pas- 
sage, is  engaged  in  interstate  commerce, 
whether  the  goods  are  carried  upon  through 
bills  of  lading,  or  are  rebilled  by  the  several 
railroads.  United  States  v.  Colorado  &  N. 
W.  R.  Co.  15:  167,  157  Fed.  321,  85  C.  C.  A. 
27. 

68.  The  provisions  of  the  safety  appliance 
acts  (act  March  2,  1893,  chap.  196,  27  Stat. 
at  L.  531,  U.  S.  Comp.  Stat.  1901,  p.  3174, 
amended  by  act  April  1,  1896,  chap.  87,  29 
Stat,  at  L.  85,  and  act  March  2,  1903,  chap. 
976,  32  Stat,  at  L.  943,  U.  S.  Comp.  Stat. 
Supp.  1907,  p.  885)  apply  to  and  govern  a 
railroad  company  engaged  in  interstate  com- 
merce which  operates  entirely  within  a  sin- 
gle state,  independently  of  all  other  car- 
riers. United  States  v.  Colorado  &  N.  W. 
R.  Co.  15:  167,  157  Fed.  321,  85  C.  C.  A.  27. 

(Annotated) 

69.  Storage  of  an  interstate  shipment 
of  freight  after  its  arrival  at  the  point  of 
destination,  while  awaiting  payment  of 
charges  and  delivery  to  the  consignee,  is 
a  part  of  the  interstate  transaction,  and 
freight,  while  so  stored,  is  not  subject  to 
the  rules  of  the  state  corporation  commis- 
sion. St.  Louis  &  S.  F.  R.  Co.  v.  State,  30: 
137,  107  Pac.  929,  26  Okla.  62. 

70.  A  railroad  company  in  conveying 
freight  over  a  route  which  for  a  time  extends 
beyond  the  boundaries  of  the  state,  and  again 
returns  into  it,  is  engaged  in  interstate  com- 
merce. Patterson  v.  Missouri  P.  Coal  Co. 
15:  733,  94  Pac.  138,  77  Kan.  230. 

Free    transportation    of    passenger. 

71.  Congress,  in  the  exercise  of  its  power 
over  commerce,  could  enact  the   provisions 

*of  the  act  of  June  26,  1906,  §  6,  which  ren- 


COMMERCE,  II.  c. 


491 


dered  unenforceable  a  prior  contract,  valid 
when  made,  by  which  an  interstate  carrier 
agreed  to  issue  annual  passes  for  Kfe  in 
consideration  of  a  release  of  a  claim  for 
damages.  Louisville  &,  N.  R.  Co.  v.  Mot- 
tley,  34:  671,  31  Sup.  Ct.  Rep.  265,  219  U. 
S.  467,  55  L.  ed.  297. 
As  to  tickets. 

72.  Limiting  the  sale  of  railroad  tickets 
to  railroad  companies  and  their  duly  author- 
ized agents  is  not,  although  applicable  to 
tickets  of  roads  out  of,  as  well  as  within, 
the  state,  an  interference  with  interstate 
commerce.  State  v.  Thompson,  4:  480,  84 
Pac.  476,  47  Or.  492. 

Free  storage  of  freight. 

73.  A  rule  of  a  state  corporation  com- 
mission requiring  railroad  companies  to 
store  less  than  car-load  shipments  of  freight 
which  are  destined  to  consignees  living 
at  interior  points  5  miles  or  more  from  the 
railroad  station,  free  of  charge,  for  ten 
days,  is,  as  applied  to  interstate  shipments, 
invalid  in  that  it  interferes  with  and  im- 
poses upon  interstate  commerce  an  un- 
reasonable burden.  St.  Louis  &  S.  F.  R. 
Co.  v.  State,  30:  137,  107  Pac.  929,  26  Okla. 
62.  (Annotated) 

74.  A  rule  of  a  state  corporation  com- 
mission requiring  railroad  companies  to 
store  less  than  car-load  shipments  of  freight 
which  are  destined  to  consignees  living 
at  interior  points  5  miles  or  more  from  the 
railroad  station,  free  of  charge,  for  ten 
days,  is,  as  applied  to  interstate  shipments, 
in  conflict  with  and  superseded  by  the 
Hepburn  act,  requiring  the  filing  by  trans- 
portation companies  with  the  Interstate 
Commerce  Commission  of  schedules  of  rates 
for  transportation  or  any  services  conne«ted 
therewith,  and  empowering  the  Interstate 
Commission  to  decide  what  regulations  in 
respect  to  transportation  are  reasonable, 
and  to  require  conformance  therewith.  St. 
Louis  &  S.  F.  R.  Co.  v.  State,  30:  137, 
107  Pac.  929,  26  Okla.  62. 

Rights  of  transferees  of  bills  of  lad- 
ing. 

75.  A  state  statute  making  the  state- 
ments contained  in  a  bill  of  lading  con- 
clusive evidence  in  favor  of  bona  fide  holders 
for  value  is  not  an  unlawful  regulation 
of  interstate  commerce.  Yazoo  &  M.  V. 
R.  Co.  V.  Bent,  22:  821,  47  So.  805,  94  Miss. 
681. 

Transportation   of  live   stock. 

76.  The  Federal  statute  fixing  the  duties 
and  liabilities  of  shippers  and  carriers  of 
live  stock  in  interstate  transportation  con- 
trols such  shipments,  and  displaces  any 
state  laws  upon  the  same  subject.  Gilliland 
T.  Southern  R.  Co.  27:  1106,  67  S.  E.  20, 
85  S.  C.  27. 

77.  A  statute  prescribing  a  minimum 
rate  of  speed  at  which  live  stock  may  be 
transported  between  intrastate  points  only 
does  not  thereby  interfere  with  or  regulate 
interstate  commerce.  Cram  v.  Chicago,  B. 
&  Q.  R.  Co.  26:  1022,  122  N.  W.  31,  84  Neb. 
607,  123  N.   W.   1045,  85  Neb.   586. 

78.  The  passage  of  a  shii)ment  of  live 
stock  between  points  within  a  state,  for  a 
short  distance  over  the  territory  of  another 
Digest  1-52  i:i.R.A.(N.S.) 


state,  renders  the  shipment  one  of  inter- 
state commerce,  so  as  to  render  inapplicable 
thereto  a  state  statute  reciuiring  common 
carriers  of  live  stock  within  the  state  to 
maintain  a  minimum  rate  of  speed  unless 
prevented  by  unavoidable  cause,  as  such 
statute  does  not  apply  to  interstate  com- 
merce. Missouri,  K.  &  T.  R.  Co.  v.  Leiben- 
good,  28:  985,  109  Pac.  988,  83  Kan.  25. 
Connecting  carriers. 
Denial  of  due  process  in  regulation  of,  see 

Constitutional  Law,  447. 
Infringement  of  freedom  to  contract  by  reg- 
ulation of,   see   Constitutional  Law, 
460. 

79.  A  state  statute  making  a  carrier 
recognizing  a  through  contract  the  agent  of 
all  connecting  carriers,  and  liable  to  the 
consignee  for  loss  of,  or  injury  to,  the 
property,  whether  it  occurred  on  its  line  or 
not,  with  right  to  recover  over  against  the 
carrier  in  fault,  is  invalid  as  applied  to  in- 
terstate shipments.  Venning  v.  Atlantic 
Coast  Line  R.  Co.  12:  1217,  58  S.  E.  983, 
78  S.  C.  42. 

80.  No  unconstitutional  interference  with 
interstate  commerce  is  effected  by  statutes 
requiring  a  carrier  receiving  baggage  for 
transportation  into  another  state  over  con- 
necting lines,  in  case  of  loss,  to  adjust  the 
loss  with  the  shipper,  or  inform  hira  of  the 
point  where  loss  occurred,  or  produce  a  re- 
ceipt from  the  carrier  to  whom  it  delivered 
the  property,  unless  it  proves  that,  by  the 
exercise  of  due  diligence,  it  has  been  unable 
to  trace  the  loss,  and  holding  the  initial  car- 
rier liable  to  the  shipper,  permitting  it  to 
recover  over  against  the  carrier  liable  for 
the  loss.  Skipper  v.  Seaboard  Air  Line  R. 
Co.  7:  388,  65  S.  E.  454,  75  S.  C.  276. 

(Annotated) 

81.  The  imposition  upon  an  interstate 
carrier  voluntarily  receiving  property  for 
transportation  from  a  point  in  one  state 
to  a  point  in  another  state,  of  liability  to 
the  holder  of  the  bill  of  lading  for  a  loss 
anywhere  en  route,  with  a  right  of  recovery 
over  against  the  carrier  actually  causing 
the  loss,  which  is  made  by  the  act  of  Feb- 
ruary 4,  1887  (24  Stat,  at  L.  379,  chap. 
104,  U.  S.  Comp.  Stat.  1901,  p.  3154),  § 
20,  as  amended  by  the  act  of  June  29,  1906 
(34  Stat,  at  L.  584,  595,  chap.  3591,  U.  S. 
Comp.  Stat.  Supp.  1909,  pp.  1149,  1166), 
in  spite  of  any  agreement  or  stipulation 
limiting  liability  to  its  own  line,  is  a 
valid  regulation  of  interstate  commerce. 
Atlantic  C.  L.  R.  Co.  v.  Riverside  Mills, 
31:  7,  31  Sup.  Ct.  Rep.  164,  219  U.  S.  186, 
55  L.  ed.  167. 

Charges  of  carrier. 

General  power  to  regulate  rates  of  carrier, 
see  Caebiebs,  IV.  c. 

Requiring  the  filing  and  publishing  of 
rates  where  foreign  commerce  is  car- 
ried under  joint  through  rate,  see  Cab- 
biers,    1019-1022. 

Effect  of  Interstate  commerce  act  on  car- 
rier's right  to  give  preferences  and  ad- 
vantages,  see  Cabriebs,   1050,   1051. 

Evidence  of  discrimination  in  interstate 
shipment,  see  Evidence,  2031,  2032. 


492 


COMMERCE,  II.  c. 


82.  A  state  statute  prescribinp  maxi- 
mum coal  rates  for  the  transportation  by 
common  carriers  of  coal  in  carload  lots 
within  the  state  is  not  violative  of  art.  1, 
§  8,  of  the  United  States  Constitution 
which  confers  upon  Congress  the  power  to 
regulate  interstate  commerce.  State  ex 
rel.  McCue  v.  Northern  P.  R.  Co.  25:  looi, 
120  N.  W.  869,  19  N.  D.  45. 

83.  The  states  continued  to  possess  the 
right  to  prescribe  reasonable  rates  for  the 
exclusivelv  internal  traffic  on  interstate  car- 
riers after  the  passage  of  the  interstate 
commerce  act  of  1887,  and  the  amendment 
of  June  29,  1909  (34  Stat,  at  L.  584,  chap. 
3591,  U.  S.  Comp.  Stat.  Supp.  1911,  p.  1288), 
although  it  may  be  that  by  reason  of  the 
interblending  of  the  interstate  and  intra- 
state operations  of  such  carriers  adequate 
regulation  of  interstate  rates  cannot  be 
maintained  without  imposing  requirements 
with  respect  to  their  intrastate  rates  which 
substantially  affect  the  former.  Minnesota 
Rate  Cases,  48:  1151,  33  Sup.  Ct.  Rep.  729, 
230  U.  S.  352,  57  L.  ed.  1511. 

84.  Congressional  inaction  on  the  sub- 
ject leaved  each  state  free  to  establish  maxi- 
mum intrastate  rates  for  interstate  carriers 
which  are  reasonable  in  themselves,  although 
the  state's  requirements  may  necessarily 
disturb  the  existing  relation  between  intra- 
state and  interstate  rates  as  to  places  with- 
in zones  of  competition  crossed  by  the  state 
boundary  line.  Minnesota  Rate  Cases,  48: 
1 151,  33"Sup.  Ct.  Rep.  729,  230  U.  S.  35e,  57 
L.  ed.  1511. 

Contracts   limiting  liability. 

Applicability  of  Carmack  amendment  to 
transportation  of  baggage,  see  Car- 
riers, 719. 

85.  The  provision  of  a  state  Constitution 
forbidding  carriers  to  contract  for  limita- 
tion or  liability  is  superseded  by  the  pro- 
vision of  the  Carmack  amendment  of  the 
interstate  commerce  act,  which  permits 
a  contract  fixing  the  value  of  property  to 
be  transported  in  consideration  of  special 
freight  rates.  Cincinnati,  N.  0.  ic  T.  P. 
R.  Co.  V.  Rankin,  45:  529,  156  S.  W.  400,  153 
Ky.  730,  157  S.  W.  926,  154  Ky.  549. 

86.  The  intent  of  Congress  to  take  pos- 
session of  the  subject  of  the  liability  of  a 
carrier  under  contracts  for  interstate  ship- 
ment, and  to  supersede  all  state  regulations 
^ith  reference  to  that  subject,  so  clearly 
appears  from  the  Carmack  amendment  of 
June  29,  1906  (34  Stat,  at  L.  584,  chap. 
3591),  to  the  act  of  February  4,  1887  (24 
Stat,  at  L.  379,  chap.  104),  §  20,  as  to  in- 
validate, as  applied  to  interstate  shipments, 
the  provisions  of  any  state  law  nullifying 
contracts  limiting  the  liability  of  a  carrier 
for  loss  or  damage  to  the  agreed  or  de- 
clared value.  Adams  Exp.  Co.  v.  Croninger, 
44:  257,  33  Sup.  Ct.  Rep.  148,  226  U.  S. 
491,  57  L.  ed.   314.  (Annotated) 

87.  As  to  interstate  shipments,  the  Car- 
mack Amendment  to  the  interstate  com- 
merce act  supersedes  a  state  constitutional 
provision  that  the  shipper  is  not  bound  by 
a  recital  of  value  in  his  contract  of  ship- 
Digest  1-52  KR.A.(N.S.) 


ment,  but  may  show  and  recover  his  full 
loss.  Louisville  &  N.  R.  Co.  v.  Miller,  50: 
819,   162   S.  W.   73,   156   Ky.  677. 

(Annotated) 
Cars. 

88.  Congress  has  so  taken  possession  of 
the  subject  of  the  delivery,  when  called  for, 
of  railroad  cars  to  ho  used  in  interstate 
traffic,  bv  the  provisions  of  the  act  of  June 
29,  1906'  (34  Stat,  at  L.  584,  chap.  3591), 
imposing  a  specific  duty  upon  railway  car- 
riers to  furnish  cars  for  such  traffic  upon 
reasonable  request,  and  giving  remedies  for 
violations  of  that  duty,  as  to  invalidate, 
when  applied  to  cars  demanded  for  inter- 
state transportation,  the  provisions  of  Minn. 
Laws  1907,  chap.  23,  requiring  railway  com- 
panies to  furnish  freight  cars  on  demand, 
under  penalty  for  each  day's  delay  not  due 
to  certain  excepted  causes.  Chicago,  R.  I. 
&  P.  R.  Co.  V.  Hardwick  Farmers  Elevator 
Co.  46:  203,  33  Sup.  Ct.  Rep.  174,  226  U.  S. 
426,  57  L.  ed.  284. 

89.  The  provision  of  Kan.  Laws  1905, 
chap.  345,  p.  570,  which  imposes  a  penalty 
of  $1  per  day  upon  each  car  for  delay  in 
furnishing  freight  cars  ordered,  and  permits 
no  excuse  therefor  except  "strikes,  unavoid- 
able accidents,  and  other  public  calamities," 
is  not  invalid,  but  is  a  reasonable  police  reg- 
ulation, and  imposes  no  considerable  burden 
upon  interstate  commerce.  Patterson  v.  Mis- 
souri P.  Coal  Co.  15:  733,  94  Pac.  138.  77 
Kan.  236.  (Annotated) 

90.  The  act  of  the  legislature  of  Okla- 
homa territory  of  1905  ( §  2,  art.  2,  chap. 
10,  p.  144,  Session  Laws  1905),  imposing  up- 
on railroad  companies  a  penalty  of  $1  per 
day  for  failure  to  furnish  cars  within  four 
days  after  they  are  requested,  but  excusing 
a  company  "in  case  of  fire,  washouts, 
strikes,  lockouts,  or  other  unavoidable  casu- 
alties," is  not  an  infringement  of  the  com- 
merce clause  of  the  Constitution  of  the  Unit- 
ed States  (article  1,  §  8).  Chicago,  R.  I.  & 
P.  R.  Co.  V.  Beattv,  42:  984,  118  Pac.  367, 
126  Pac.  736,  34  Okla.  321.        (Annotated) 

91.  The  act  of  the  legislature  of  Okla- 
homa territory  of  1905  (§  2,  art.  2,  chap.  10, 
p.  144),  imposing  upon  railroad  companies 
the  penalty  of  $1  per  day  for  failure  to 
furnish  cars  within  four  days  after  they 
are  requested,  but  excusing  a  company  in 
case  of  fire,  washouts,  strikes,  lockouts,  or 
other  unavoidable  casualties,  is  not  in  con- 
flict with  act  of  Congress,  June  29,  1906, 
chap.  3591,  §  1,  34  Stat,  at  L.  584,  U.  S. 
Comp.  Stat.  Supp.  1911,  p.  1285,  which  re- 
quires cars  to  be  furnished  upon  reasonable 
request.  Chicago,  R.  I.  &  P.  R.  Co.  v.  Beat- 
ty,  42:984,  118  Pac.  367,  126  Pac.  736,  34 
dkla.  321. 

92.  A  rule  of  a  state-railroad  commission 
imposing  a  penalty  upon  railroad  compa- 
nies for  failure  to  furnish,  within  four  days 
from  demand,  cars  which  are  needed  for  in- 
terstate shipments,  is  an  invalid  interfer- 
ence with  interstate  commerce,  although  it 
reserves  power  to  suspend  the  operation  of 
tlie  rule  if  justice  demands, — at  least  when 
applied  to  a  state  of  facts  which,  because 
of  shortage  of  cars,  due  to  unprecedented 
demand,    renders    it    impossible    to    cor  .ply 


COMMERCE,  II.  d— IV.  a. 


493 


with  the  rule  without  disobeying  it  in  other 
parts  of  the  state,  or  disobeying  the  rules 
of  other  states.  Southern  R.  Co.  v.  Com. 
17:  364,  60  S.  E.  70,  107  Va.  771. 

(Annotated) 

93.  Interstate  commerce  is  unconstitu- 
tionally regulated  by  Kirby's  Ark.  Dig. 
§§  6803,  6804,  making  it  the  carrier's  duty 
to  supply  cars  to  shippers  on  demand,  under 
which  a  carrier  will  either  be  compelled  to 
desist  from  the  interchange  of  cars  with 
connecting  lines  for  the  purpose  of  moving 
interstate  commerce,  because  of  a  refusal 
of  the  state  courts  to  permit  it  to  avail  it- 
self, as  causing  and  excusing  its  default, 
of  the  rules  and  regulations  adopted  for 
the  interchange  of  cars  by  the  American 
Railway  Association,  which  govern  90  per 
cent  of  the  railways  in  the  United  States, 
or  will  be  obliged  to  conduct  such  business 
with  the  certainty  of  being  subjected  to 
the  heavy  penalties  provided  by  the  stat- 
ute. St.  Louis  S.  W.  R.  Co.  v.  State, 
29:  802,  30  Sup.  Ct.  Rep.  476,  217  U.  S.  136, 
54  L.  ed.  698. 

d.  Licenses  and  taxes. 

Requiring  license  for  ferry,   see  supra,   14. 
III.  Limiting  exports  from  state. 

(See  same  heading  m  Digest  L.R.A.  1-7 O.J 

IV.  Regulating,  taxing,  and  licensing 
sales,  manufacturing,  and  other 
htisiness. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Taxation  of  subjects  of  commerce,  see  infra, 
V. 

94.  The  laws  of  Congress  governing  and 
controlling  interstate  commerce  can  have 
effect  upon  property  only  during  the  time 
it  retains  its  distinctive  interstate  quality, 
or  character,  of  commerce.  When  such 
property  is  shipped  to,  and  enters  the  body 
of  the  property  of,  the  state,  the  original 
packages  being  broken,  and  the  contents  of- 
fered and  sold  to  retailers  or  consumers,  its 
interstate  quality  is  lost,  and  it  ceases  to 
be  subject  to  congressional  control.  Re 
Agnew,  35:  836,  131  N.  W.  817,  89  Neb.  306. 

95.  The  right  of  a  merchant  of  one  state 
to  sell  his  goods  In  another  state  carries  with 
it  the  right  to  deliver  them,  and  to  employ  for 
that  purpose  any  agency  he  may  deem  prop- 
er, providing  that  at  no  time  before  the  de- 
livery the  goods  become  so  mingled  with  the 
common  mass  of  property  in  such  other  state 
as  to  deprive  the  transaction  of  its  inter- 
state features.  Kinsley  v.  ^Dyerly,  19:  405, 
98  Pac.  228,  79  Kan.  1. 

96.  The  mere  delay  in  delivering  a  pack- 
age of  interstate  commerce  to  the  consignee 
will  not  make  it  subject  to  the  state  laws. 
Adams  Exp.  Co.  v.  Com.  5:  630,  92  S.  W. 
932,  124  Ky.  160. 

Digest   1-52  L.R.A.(N.S.) 


97.  The  business  of  maintaining  attor- 
neys in  various  sections  of  a  state,  to  make 
collections  for  and  furnish  information  to 
merchant  customers  as  to  the  financial 
standing  of  persons  in  the  vicinity  of  such 
attorneys,  is  not,  although  it  may  require 
the  sending  of  letters  from  state  to  state, 
interstate  commerce  so  as  to  exempt  the 
proprietor  from  paying  a  license  tax  im- 
posed by  the  state.  United  States  Fidelity 
&  G.  Co.  v.  Com.  47:  648,  129  S.  W.  314,  139 
Ky.   27.  (Annotated) 

98.  The  fact  that  a  water  tank  and 
tower  manufactured  by  a  corporation  in  one 
state  for  use  in  another  is  to  be  set  up  by 
it  in  the  latter  does  not  take  the  contract 
therefor  out  of  the  protection  of  the  com- 
merce clause  of  the  Federal  Constitution, 
so  as  to  deprive  the  corporation  of  the 
right  to  a  lien  for  the  work,  because  it  has 
not  complied  with  the  local  statutes  so  as 
to  be  entitled  to  do  business  in  the  state. 
Flint  &  W.  Mfg.  Co.  v.  McDonald,  14:673, 
ni4  N.  W.  684,  21  S.  D.  526.  (Annotated) 
Correspondence  schools. 

See  also   supra,  10. 

99.  Interstate  commerce  is  unconstitu- 
tionally regulated  by  the  provisions  of  Kan. 
Gen.  Stat.  1901,  §  1283,  under  which  the  fil- 
ing of  a  statement  of  financial  condition  is 
made  a  prerequisite  to  the  right  of  a  for- 
eign corporation  engaged  in  imparting  in- 
struction by  correspondence  to  do  business 
in  the  state,  where  such  business  involves 
the  solicitation  of  students  in  Kansas  by 
local  agents,  who  are  also  to  collect  and 
forward  to  the  home  office  the  tuition  fees, 
and  the  systematic  intercourse  by  corre- 
spondence between  the  company  and  its  stu- 
dents and  agents,  wherever  situated,  and 
the  transportation  of  the  needful  books, 
apparatus,  and  papers.  International  Text- 
Book  Co.  V.  PTgg,  27:  493,  30  Sup.  Ct.  Rep. 
481,  217  U.  S.  91,  54  L.  ed.  678. 
Buying    and    selling    futures. 

100.  Brokerage  contracts  for  the  buying 
and  selling  of  futures  in  cotton,  made  in 
one  state  to  be  executed  in  another,  do  not 
constitute  interstate  commerce  because 
sometimes  discharged  by  the  delivery  of  the 
cotton,  where  the  contracts  do  not  require 
the  seller  to  ship  the  cotton  from  any  point, 
since  the  shipment  does  not  become  inter- 
state commerce  by  virtue  of  the  contract, 
but  by  the  subsequent  and  independent  act 
of  the  seller,  and  then  only  when  the  cotton 
begins  to  move.  Ware  v.  Mobile  County, 
14:  1081,  41  So.  153,  146  Ala.  163. 

(Annotated) 

101.  The  business  of  buying  and  selling 
futures  in  cotton  and  grain  on  margins  for 
commission  does  not,  although  the  contracts 
are  to  be  executed  in  another  state,  consti- 
tute interstate  commerce,  so  as  not  to  be 
subject  to  a  state  brokerage  license  or  oc- 
cupation tax,  where  the  contracts  are  dis- 
charged by  payment  of  differences  in  the 
market  values.  Ware  v.  Mobile  County, 
14:  1081,  41  So.  153,  146  A'a.  163. 

Sale    of   nursery   stock. 
Regulations  by  state  to   prevent  spread  of 
disease,  see  supra,  26. 


494 


COAtMERCE,  IV.  a. 


102.  Tlie  commerce  clause  of  the  Federal 
Constitution  is  violated  by  a  statute  giving 
a  board  of  agriculture  unlimited  discretion 
to  exclude  nonresident  nursery  dealers  from 
selling  stock  within  the  state  on  the  ground 
of  want  of  integrity  or  financial  responsi- 
bility. State  ex  rel.  Hawley  v.  Nelson,  15: 
138,  115  N.  W.  93,  22  S.  D.  23. 
Monopolies. 

103.  The  prohibitions  of  the  anti-trust  act 
of  July  2,  1890,  §§  1,  2,  against  restraints 
or  monopolization  of  trade  or  commerce,  do 
not  exceed  the  authority  of  Congress  to 
regulate  commerce,  as  applied  to  undue  re- 
straints of  interstate  or  foreign  commerce 
in  petroleum  and  its  products,  by  contract, 
combination,  or  conspiracy,  or  monopoliza- 
tion, or  attempts  to  monopolize  any  part  of 
Buch  commerce.  Standard  Oil  Co.  v.  Unit- 
ed States,  34:  834,  31  Sup.  Gt.  Rep.  602, 
221  U.  S.  1,  55  L.  ed.  619. 

104.  Interstate  commerce  is  not  unlawful- 
ly interfered  with  by  a  statute  forbidding 
the  making  of  a  condition  of  the  sale  of 
goods  to  be  resold,  that  the  purchaser  shall 
not  sell  goods  of  other  dealers,  although 
the  seller  is  located  in  another  state.  Com. 
V.  Strauss,  11:  968,  78  N.  E.  136,  191  Mass. 
545. 

Food  and  drngs. 

105.  Congress  having,  by  the  food  and 
drugs  act  of  June  30,  1906,  made  adulterat- 
ed and  misbranded  articles  contraband  of 
interstate  commerce,  could,  in  order  to 
make  the  legislation  effective,  authorize,  as 
it  did  in  §  10  of  that  act,  seizures  for  con- 
fiscation and  condemnation  so  long  as  the 
articles  remained  unsold,  whether  in  the 
original  packages  or  not;  and  such  means 
of  enforcement  may  not  be  thwarted  by 
state  legislation,  like  Wis.  Laws  1907,  chap. 
557,  under  which  cans  of_a  mixture  of 
glucose  and  refiner's  syrup  which  have  been 
removed  from  the  boxes  in  which  they  were 
shipped  in  interstate  commerce,  and  are 
held  upon  the  shelves  of  the  importers  for 
sale,  must  bear  only  the  labels  required  by 
the  state  law,  to  the  exclusion  of  those  af- 
fixed conformably  to  the  Federal  law.  Mc- 
Dermott  v.  State,  47:  984,  33  Sup.  Ct.  Rep. 
431,  228  U.  S.  115,  57  L.  ed.  754. 

( Annotated ) 

106.  Construing  the  word  "package"  or 
its  equivalent  expression  as  used  by  Con- 
gress in  the  food  and  drugs  act  of  June 
30,  1906,  §§  7,  8,  in  defining  what  shall 
constitute  adulteration  and  what  misbrand- 
ing within  the  meaning  of  the  act,  as  re- 
ferring to  the  immediate  container  of  the 
article  which  is  intended  for  consumption 
by  the  public,  and  not  simply  to  the  out- 
side wrapping  or  box  containing  the  pack- 
ages intended  to  be  purchased  by  the  con- 
sumer, does  not  render  the  statute  invalid 
as  in  excess  of  the  power  of  Congress  over 
interstate  commerce.  McDermott  v.  State, 
47:  984,  33  Sup.  Ct.  Rep.  431,  228  U.  S.  115, 
57  L.  ed.  754. 

107.  Permitting  a  sale  of  cans  of  a  mix- 
ture of  glucose  and  refiner's  syrup  shipped 
into  the  state  only  when  the  labels  pre- 
scribed by  Wis.  Laws  1907,  chap.  557,  gov- 
Digest  1-52  I<.R.A.(N.S.) 


eming  the  sales  of  food  products,  are  sub- 
stituted for  those  affixed  in  an  honest 
attempt  to  comply  with  the  food  and  drugs 
act  of  June  30,  1906,  is  an  unlawful  attempt 
by  the  state  to  discredit  and  burden  legiti- 
mate Federal  regulations  of  interstate  com- 
merce, to  destroy  riglits  aribing  out  of  the 
Federal  statute  which  have  accrued  both 
to  the  government  and  the  shipper,  and  to 
impair  the  eflect  of  a  Federal  law  wliich 
has  been  enacted  under  the  constitutional 
power  of  Congress  over  the  subject.  Mc- 
Dermott V.  State,  47:  984,  33  Sup.  Ct.  Rep. 
431,  228  U.  S.  115,  57  L.  ed.  754. 

108.  A  state  law  requiring  package?  ctm- 
taining  articles  of  food  to  be  branded  with 
a  statement  of  the  net  contents  by  weight, 
when  offered  for  sale  in  the  retail  trade, 
imposes  no  obligation  upon  the  manufac- 
turer in  a  foreign  state,  but  operates  alone 
upon  the  dealer  selling  the  property  at  re- 
tail, and  does  not  violate  the  power  of  Con- 
gress to  regulate  interstate  commerce.  Re 
Agnew,  35:  836,  131  N.  W.  817,  89  Neb.  306. 

109.  A  state's  police  power  does  not  ex- 
tend to  prohibiting  the  keeping  for  ship- 
ment out  of  the  state  of  unwholesome 
meats,  this  being  a  subject  confided  exclu- 
sively to  the  commercial  powers  of  Con- 
gress. State  V.  Peet,  14:677,  68  Atl.  661, 
80  Vt.  449. 

110.  A  state  statute  prohibiting  keeping 
the  flesh  of  calves  less  than  four  weeks  old 
and  less  than  50  pounds,  dressed  weight,  for 
shipment  out  of  the  state,  is  in  conflict  with 
the  commerce  clause  of  the  Federal  Consti- 
tution, this  being  an  article  of  commerce 
under  Federal  laws  which  prohibit  the  sale 
of  the  flesh  of  such  animals  only  when  un- 
der three  weeks  of  age.  State  v.  Peet. 
14:677,  68  Atl.  661,  80  Vt.  449. 
Cigarettes. 

In  original  packages,  see  infra,  130. 

111.  The  sale  of  a  package  of  tobacco 
which  contains  a  coupon  entitling  the  pur- 
chaser to  cigarette  papers  if  sent  to  the 
manufacturer  in  another  state  does  not,  by 
reason  of  the  fact  that  it  must  be  so  sent, 
become  interstate  commerce,  so  as  not  to  be 
subject  to  the  operation  of  a  state  statute 
forbidding  the  sale  of  such  paper,  directly  or 
indirectly,  or  upon  any  pretense,  or  by  any 
device.  State  v.  Sbragia,  23:  697,  119  N.  W. 
290,  138  Wis.  579. 

Intoxicating  liqnors. 

Power  of  Congress  to  forbid  publication  of 

advertisements  as  to  liquors,  see  supra, 

11. 
Prohibiting     interstate    transportation     of 

liquors,  see  supra,  42. 
Sales  in  original  packages,  see  infra,  131- 

137. 
Burden  of  proving  that  sale  was  transaction 

of  interstate  commerce,  see  Evidence, 

102. 
Criminal  liability  of  bank  collecting  draft 

attached  to  bill  of  lading  for  liquor,  see 

Intoxicating  Liquors,  97. 
See  also  Intoxicating  Liquoes,  88. 

112.  One  arrested  for  illegally  conveying 
intoxicating  liquor  which  was  unlawfully  in 
his  possession  through  prohibited  territory 


COMMERCE,  IV.  a. 


495 


cannot  invoke  the  protection  afforded  to 
interstate  shipments  of  liquor  by  the  Con- 
stitution and  laws  of  the  United  States, 
since  such  protection  extends  only  to  per- 
sons who  are  lawfully  in  possession  of 
liquors  so  shipped.  Gilmore  v.  State,  27: 
151,  106  Pac.  801,  3  Okla.  Crim.  Rep.  434. 

113.  The  state  may  lawfully  require  the 
procurement  of  a  license  by  a  traveling  sales- 
man who  solicits  orders  for  small  quantities 
of  intoxicating  liquor,  to  be  forwarded  for 
acceptance  to  another  state,  where  delivery 
is  to  be  made.  State  v.  Delamater,  8:  774, 
104  N.   W.  537,  20  S.   D.  23. 

114.  An  ordinance  imposing  an  annual  fee 
of  $1,000  for  the  privilege  of  conducting  a 
brewery  business  within  the  municipality, 
and  requiring  compliance  with  prescribed 
conditions  in  addition  to  the  payment  of 
the  fee,  will  be  regarded  as  a  police  measure, 
and  therefore  not  an  unlawful  interference 
with  interstate  commerce  as  applied  to 
products  imported  from  another  state. 
Schmidt  v.  Indianapolis,  14:787,  80  N.  E. 
632,  168  Ind.  631.  (Annotated) 

115.  The  owner  of  intoxicating  liquors  in 
one  state  cannot,  by  virtue  of  the  Federal 
interstate  commerce  clause,  go  into  another 
state  or  send  his  agent  there,  and,  in  defi- 
ance of  the  laws  thereof,  carry  on  the  busi- 
ness of  soliciting  orders  or  proposals  for 
the  purchase  of  such  liquors,  to  be  shipped 
from  such  other  state,  without  incurring  the 
penalties  of  such  laws.  Crigler  v.  Shepler, 
23:  500,  101  Pac.  619,  79  Kan.  834. 

116.  A  state  statute  regulating  the  tak- 
ing of  orders  in  one  state  for  intoxicating 
liquors  which  are  in  another  state  is  not 
repugnant  to  the  interstate  commerce 
clause.  State  ex  rel.  Jackson  v.  William  J. 
Lemp  Brew.  Co.  29:  44,  102  Pac.  504,  79 
Kan.  705. 

117.  A  state  statute  prohibiting  the  tak- 
ing of  orders  for  intoxicating  liquors  or  the 
contracting  for  the  sale  thereof  within  such 
state,  except  with  persons  authorized  to 
sell  the  same  as  therein  provided,  is  not 
repugnant  to  the  interstate  commerce  clause 
of  the  Federal  Constitution.  Crigler  v. 
Shepler,  23;  500,  101  Pac.  619,  79  Kan.  834. 

118.  A  state  constitutional  clause  pro- 
hibiting the  conveying  of  intoxicating  li- 
quors from  one  place  within  the  state  to 
another  place  therein,  in  the  absence  of 
prohibitory  legislation  by  the  state,  is  not 
within  the  scope  and  operation  of  a  Federal 
statute  subjecting  interstate  shipments  of 
intoxicating  liquors  to  state  laws  passed 
in  the  exercise  of  their  police  power.  High 
V.  State,  28:  162,  101  Pac.  115,  2  Okla.  Crim. 
Rep.   161. 

119.  A  shipment  of  liquor  by  express, 
without  order,  by  a  dealer  in  one  state  to 
one  whose  name  he  has  learned  in  another, 
with  directions  to  the  express  company  to 
collect  the  price  before  delivery,  does  not 
constitute  interstate  commerce;  but  the  de- 
livery of  the  package  and  collection  of  the 
price  will  constitute  a  sale  where  the 
transaction  occurs.  Adams  Exp.  Co.  v.  Com. 
5:  630,  92  S.  W.  932,  124  Ky.  160. 

(Annotated) 
Digest  1-52  L.R.A.(N.S.) 


120.  Conveying  intoxicating  liquors  which 
have  been  shipped  from  another  state,  from 
a  railway  station  to  the  home  of  the  con- 
signee, is  a  part  of  the  interstate  commerce 
transportation,  and  is  not  violative  of  a 
state  constitutional  clause  prohibiting  the 
conveying  of  intoxicating  liquors  from  one 
place  within  the  state  to  another  place 
therein,  as  such  provision  has  no  application 
to  interstate  shipments,  until  there  has 
been  a  delivery  thereof.  High  v.  State,  28; 
162,  101  Pac.  115,  2  Okla.  Crim.  Rep.   161. 

121.  One  is  not  engaged  in  interstate 
commerce  in  transporting  from  the  depot 
of  the  carrier  to  the  residence  of  the  buyer 
intoxicating  liquor  which  had  been  ordered 
from  another  state,  and  shipped  to  and 
left  at  such  depot.  State  v.  Wignall,  34: 
507,  128  N.  W.  935,  150  Iowa,  650. 

122.  Intoxicating  liquor  consigned  to  pro- 
hibition territory  from  another  state  is 
subject  to  seizure  in  the  hands  of  the  car- 
rier where  one  holding  the  bill  of  lading 
has  receipted  for  the  entire  consignment 
and  taken  away  a  portion,  leaving  that 
seized  in  the  carrier's  freight  house  for  six 
days  thereafter.  State  v.  Intoxicating  Li- 
quors, 29:  745,  76  Atl.  265,  106  Me.  138. 

(Annotated) 

123.  Carriage  of  intoxicating  liquors  con- 
signed by  a  shipper  in  one  state  to  a  ficti- 
tious consignee  in  another  is  not  ended,  so 
as  to  subject  them  to  seizure  under  the 
state  laws,  merely  because  the  car  in  which 
they  were  carried  has  been  placed  on  the 
team  track  at  their  destination  ready  for 
delivery,  since,  in  the  absence  of  any  agree- 
ment by  the  consignee  to  receive  them  else- 
where, the  carrier's  undertaking  is  not  com- 
pleted until  removal  of  the  goods  from  the 
car  to  the  freight  house.  State  v.  Intoxi- 
cating Liquors,  11:  550,  66  AtL  393,  102  Me. 
206.  (Annotated) 

124.  Intoxicating  liquors  shipped  from 
another  state  to  fictitious  consignees,  or  to 
local  merchants  who  did  not  order  and  do 
not  claim  them,  cannot,  although  they  liad 
been  placed  by  the  carrier  in  its  warehouse 
and  remained  there  twenty-four  days,  be 
regarded  as  constructively  delivered,  so  as 
to  lose  their  character  as  articles  of  inter- 
state commerce,  and  become  subject  to  local 
seizure.  State  v.  Intoxicating  Liquors,  23: 
1020,  72  Atl.  331,  104  Me.  463.     (Annotated) 

125.  Delivery  of  intoxicating  liquor  to  a 
common  carrier  for  transportation  to  an- 
other state  in  response  to  a  mail  order  is 
not,  although  it  takes  place  within  the  pro- 
hibited distance  of  a  schoolhouse,  punish- 
able under  the  state  laws,  although  the 
sale  is  completed  when  the  delivery  is 
made  to  the  carrier,  since  it  is  immediately 
protected  by  the  commerce  clause  of  the 
Federal  Constitution.  State  v.  J.  W.  Kel- 
ly &  Co.  36:  171,  133  S.  W.  1011,  123  Tenn. 
556. 

126.  An  interstate  shipment  of  intoxicat- 
ing liquor  may  be  seized  and  confiscated  un- 
der a  statute  providing  for  seizure  and  con- 
fiscation of  intoxicating  liquors  when  kept 
for  the  purpose  of  sale  or  barter  contrary  to 
law,  before  removal  from  the  depot  where 


496 


COMMERCE,  IV.  b. 


tlie  consignee  has  received  and  retained 
actual  and  exclusive  possession  of  such 
liquors  from  the  carrier  with  the  admitted 
intention  of  selling  them  contrary  to  law, 
since  the  permissive  police  powers  of  the 
state  conferred  by  the  Wilson  Act  attach 
immediately  after  the  consummation  of  the 
delivery  by  the  carrier  to  the  consigtvee. 
State  V.  Eighteen  Casks  of  Beer,  25:  492,  104 
Pac.   1093,  24  Okla.  786. 

127.  Paying  the  express  charges  and  sign- 
ing the  receipt  book  for  intoxicating  liquors 
imported  from  another  state  do  not  con- 
stitute a  constructive  delivery,  so  as  to 
subject  them  to  seizure  under  the  state 
law,  in  view  of  the  Wilson  act,  where  the 
consignee  stated  that  he  was  uncertain 
whether  or  not  the  liquors  were  his,  and 
requested  the  carrier,  which  had  not  ten- 
dered them  to  him,  to  hold  them  until  he 
assertained  if  they  were,  and  only  seven 
hours  elapsed  between  that  time  and  the 
attempted  seizure.  State  v.  Parshley,  37: 
444,   81   Atl.  484,   108  Me.   410. 

128.  The  act  of  Congress  known  as  the 
Wilson  law,  which  permits  states  to  regu- 
late intoxicating  liquors  brought  into  their 
borders,  is  not  applicable  in  case  of  a  sale 
for  export,  so  that  the  state  cannot  pro- 
hibit the  making  of  such  sale  within  the 
prohibited  distance  of  a  schoolhouse. 
State  v.  J.  W.  Kelly  &  Co.  36:  171,  133  S. 
W,  1011,  123  Tenn.   556. 

b.  In  original  packages. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

State  taxation  of  proceeds  of  sales  in  origi- 
nal packages,  see  Taxes,  131,  139. 
See  also  supra,  94. 

129.  An  original  package  as  governed  by 
interstate  commerce  law  is  that  which  is 
delivered  by  the  importer  to  the  carrier  at 
the  initial  point  of  shipment,  and  retains 
its  form  and  contents  until  received  by  the 
consignee  in  the  same  condition  as  when 
shipped.  If,  upon  arriving  at  its  destina- 
tion in  a  foreign  state,  the  package  is 
broken,  and  its  contents,  in  smaller  units, 
is  offered  for  sale,  and  enters  into  the  re- 
tail commerce  of  the  state,  the  distinctive 
quality  of  interstate  commerce  is  lost,  and 
the  goods  become  at  once  subject  to  state 
laws.  Re  Agnew,  35:  836,  131  N.  W.  817. 
89  Neb.  306. 

Cigarettes. 

130.  A  state  cannot  deny  to  a  proper  per- 
son the  right  to  hold  i«  the  original  pack- 
ages cigarettes  which  he  has  imported  from 
another  state.  State  v.  Lowry,  4:  528,  77 
N.  E.  728,  166  Ind.  372.  (Annotated) 
Intoxicating  liqnors. 

EflFect  of  Webb-Kenyon  act  on  right  of  car- 
rier to  take  liquor  into  state,  see  In- 
toxicating Liquors,  118. 

See  also  Intoxicating  Liquors,  88. 

131.  Under  the  interstate  commerce 
clause  of  the  Federal  Constitution,  a  resi- 
dent of  one  state  may  order  and  receive 
Digest   1-52  L.R.A.(N.S.) 


a  shipment  of  whisky  from  another  state, 
and  convey  it  in  the  original  package  from 
the  depot  at  which  the  shipment  arrives  to 
his  home.  High  v.  State,  28:  162,  101  Pac. 
115,  2  Okla.  Crim.  Rep.  IGl. 

132.  A  package,  to  be  unbroken  within 
the  meaning  of  a  law  permitting  liquor  to 
be  delivered  in  unbroken  packages  in  dry 
territory,  need  not  necessarily  be  the  one 
received  by  the  wholesaler,  but  he  may  fill 
a  smaller  receptacle,  as  a  demijoiin,  from  a 
larger  one,  and  deliver  it  in  the  unbroken 
form  in  which  he  prepares  it.  State  v. 
Maire,  39:  1051,  120  Pac.  87,  66  Wash.  591. 

(Annotated) 

133.  A  state  statute  enacted  before  the 
passage  of  the  Webb-Kenyon  act  of  Con- 
gress, which  attempted  to  forbid  the  im- 
portation into  the  state  from  another  state 
or  country  of  intoxicating  liquor  for  per- 
sonal use,  was  unconstitutional  as  a  viola- 
tion of  the  power  of  Congress  over  inter- 
state commerce.  Atkinson  v.  Southern  Exp. 
Co.  48:  349,  78  S.  E.  516,  94  S.  C.  444. 

134.  The  passage  by  Congress  of  the 
Webb-Kenyon  act,  which  prohibited  the 
transportation  into  a  state  of  any  intoxi- 
cating liquoi-  intended  to  be  received,  pos- 
sessed, sold,  or  in  any  manner  used  in  viola- 
tion of  any  law  of  such  state,  does  not 
validate  a  statute  of  the  state  which,  by 
attempting  to  forbid  the  importation  of 
such  liquor  for  personal  use,  was  unconsti- 
tutional as  an  interference  with  interstate 
commerce.  Atkinson  v.  Southern  Exp.  Co. 
48:  349,  78  S.  E.  516,  94  S.  C.  444. 

(Annotated) 

135.  The  state  may  pass  a  statute  for- 
bidding the  importation  of  intoxicating  li- 
quor into  its  territory  for  personal  use, 
since  the  passage  by  Congress  of  the  Webb- 
Kenyon  act,  which  prohibits  the  transporta- 
tion into  any  state  of  any  intoxicating  li- 
quors intended  to  be  received,  possessed, 
sold,  or  in  any  manner  used  in  violation  of 
any  law  of  such  state.  Atkinson  v.  South- 
ern Exp.  Co.  48:  349,  78  S.  E.  516,  94  S.  C. 
444. 

136.  A  state  local  option  law  which  was 
enacted  before  the  act  of  Congress  known 
as  the  Webb-Kenyon  law,  which  withdrew 
shipments  of  intoxicating  liquor  from  the 
protection  accorded  interstate  commerce, 
but  which  had  not,  before  the  enactment  of 
the  latter  statute,  been  declared  unconsti- 
tutional, became,  upon  the  enactment  of 
that  statute,  applicable  to  interstate  ship- 
ments of  liquor.  Adams  Exp.  Co.  v.  Com. 
48:  342,  157  S.  W.  908,  154  Ky.  462. 

137.  The  act  of  Congress  known  as  the 
Webb-Kenyon  law,  which  withdrew  from 
the  protection  accorded  interstate  commerce, 
shipments  of  liquor  intended  to  be  received, 
possessed,  sold,  or  in  any  manner  used  in 
violation  of  law,  does  not  prevent  shipment 
to  private  individuals  for  their  own  use,  if 
such  use  is  not  contrary  to  the  local  law. 
Adams  Exp.  Co.  v.  Com.  48:  342,  157  S.  W. 
908,  154  Ky.  462. 


COMMERCE,  IV.  c;  v. 


497 


c.    Sales    hy    peddlers    and    agcmts;    hy 
sample. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Determination  on  habeas  corpus  whether 
license  tax  on  peddlers  is  interference 
with  interstate  commerce,  see  Habeas 
Corpus,  29. 

Solicitors  or  drummers;  by  sample. 

138.  A  statute  forbidding,  without  license, 
the  canvassing  for  or  selling  by  sample  of 
goods  made  in  another  state,  after  they 
have  been  shipped  into  the  state  passing  the 
statute,  while  permitting  such  canvassing 
for  domestic  goods,  violates  the  commerce 
clause  of  the  Federal  Constitution.  State 
V.  Bayer,  19:  297,  97  Pac.  129,  34  Utah,  257. 

(Annotated) 

139.  The  state  may  make  the  license  tax 
on  the  right  to  sell  certain  classes  of  goods 
by  sample  to  consumers  by  canvassing  from 
house  to  house  apply  to  goods  shipped  from 
foreign  states,  when  it  applies  equally  to 
those  of  domestic  origin.  State  v.  Bayer, 
19:  297,  97  Pac.  129,  34  Utah,  257. 

140.  An  ordinance  imposing  a  license  tax 
upon  every  person  canvassing  for  n)erchan- 
di&e  within  the  city  is  void  as  interfering 
with  interstate  commerce,  so  far  as  it  ap- 
plies to  persons  merely  taking  orders  to  be 
tilled  by  their  principals  in  another  state. 
State  ex  rel.  South  Bend  t.  Glasby,  21:  797, 
97  Pac.  734,  50  Wash.  598. 

141.  An  agent  who  solicits  orders  for  a 
merchant  of  another  state  may  be  made 
agent  to  deliver  and  collect  without  de- 
stroying the  interstate  character  of  the 
transaction.  Kinsley  t.  Dyerly,  19:  405,  98 
Pac.  228,  79  Kan.  1. 

142.  The  sale  within  the  state  of  a  frame 
for  a  portrait,  made  in  another  state,  to  fill 
an  order  taken  by  a  solicitor  in  the  former 
state,  cannot  be  so  separated  from  the  rest 
of  the  dealings  between  the  nonresident 
makel-  and  the  purchaser  as  to  sustain  the 
imposition  of  a  license  tax  under  Ala.  act 
of  March  7,  1907,  §  17,  where  the  order  for 
the  portrait  contemplated  its  delivery  in 
an  appropriate  frame,  which  the  purchaser 
of  the  portrait  should  have  the  option  of 
buying  at  the  factory  price.  Dozier  v. 
State,  28:  264,  30  Sup.  Ct.  Rep.  649,  218  U. 
S.   124,   54   L.   ed.   965.  (Annotated) 

143.  The  sale  of  the  frames  does  not 
constitute  interstate  commerce  where,  aft- 
er the  taking  of  orders  upon  a  foreign 
concern  for  pictures  which  the  contract 
stipulates  may  be  delivered  in  frames  which 
the  one  giving  the  order  may  purchase  or 
not  at  his  pleasure,  the  pictures  in  the 
frames  are  shipped  to  the  vendor's  agent, 
who  delivers  the  pictures,  collects  the  price, 
and  sells  the  frames  whenever  he  can. 
State  V.  Looney,  29:  412,  97  S.  W.  934,  214 
Mo.  216. 

Digest  1-52  I^.R.A.W.S.) 


V.   Taxation  of  suhjects   of  commerce; 
import  and  export  duties. 

Inspection  laws,  see  supra,  16-20. 

Taxing  and  licensing  sales  in  original  pack- 
ages, see  supra,  IV.  b. 

Laying  duty  on  articles  exported  from  state 
or  giving  preference  to  ports  of  one 
state  over  another,  see  Cakriebs,  1019. 

Customs  duties,  see  Duties. 

144.  The  state  has  a  right  to  impose  a  tax 
upon  property  within  its  borders,  regardless 
of  the  fact  that  such  property  may  be  em- 
ployed by  its  owners  in  interstate  commerce. 
State  V.  United  States  Exp.  Co.  37:  1127, 
131  N.  W.  489,  114  Minn.  346. 

145.  The  proportion  of  gross  earnings  of 
an  express  company  for  shipments  from  one 
point  to  another  within  the  state,  which 
represents  the  mileage  in  the  state,  is 
subject  to  state  taxation,  although  for  a 
portion  of  the  route  the  carrying  road 
runs  through  another  state.  State  v. 
United  States  Exp.  Co.  37:  1127,  131  N.  W. 
489,  114  Minn,  346. 

Property  in  transit. 

146.  The  work  undertaken  for  the  owner 
by  a  lumber  company,  of  towing  logs  in 
navigable  lakes  to  booms,  from  which  they 
are  hoisted  upon  cars  for  shipment,  consti- 
tutes part  of  the  process  of  delivery  to  the 
carrier,  and,  until  completed,  the  logs  are 
subject  to  state  taxation.  State  v.  Taber 
Lumber  Co.  13:  800,  112  N.  W.  214,  101 
Minn.  186.. 

147.  Logs  which  are  cut,  banked,  and 
boomed  upon  the  ice  of  a  navigable  lake, 
with  the  intention  of  exporting  them  from 
the  state,  do  not  become  articles  of  inter- 
state commerce  in  transit,  so  as  to  exempt 
them  from  state  taxation,  until  delivered  to 
a  common  carrier  for  exportation.  State  v. 
Taber  Lumber  Co.  13:  800,  112  N.  W.  214, 
101  Minn.  186. 

148.  Logs  which  are  cut,  banked,  and 
boomed  upon  the  ice  of  a  navigable  lake, 
although  destined  for  exportation,  do  not 
cease  to  be  part  of  the  general  mass  of  prop- 
erty in  the  state,  and  are  not  exempt  from 
state  taxation,  while  any  substantial  part  of 
the  work  of  delivery  to  the  common  carrier 
remains  to  be  done.  State  v.  Taber  Lumber 
Co.  13:  800,  112  N.  W.  214,  101  Minn.   186. 

( Annotated ) 

149.  Logs  destined  for  exportation,  but 
not  delivered  to  the  initial  carrier  for  that 
purpose  until  after  May  1st  in  any  year, 
are  subject  to  taxation  for  that  year  by  the 
express  terms  of  Minn.  Rev.  Laws  1905,  § 
822.  State  v.  Taber  Lumber  Co.  13:  800, 
112  !vr.  W.  214,  101  Minn.  186. 

150.  The  transportation  of  coal  from  one 
state  to  another  by  the  owner  for  his  own 
convenience,  and  consigned  to  his  own  or- 
der, with  the  intent  that  it  shall  be  stored 
en  masse,  and  subsequently  sold  in  specific 
quantities,  does  not  constitute  interstate 
commerce  so  as  to  exempt  it  from  local 
taxation.  Lehigh  &  W.  B.  Coal  Co.  v.  Junc- 
tion (N.  J.  Err.  &  App.)  15:  514,  68  Atl. 
806,  75  N.  J.  L.  922. 

32 


498 


COMMERCIAL  AGENCIES— COMMISSIONERS. 


151.  Merchandise  is  not  within  the  pro- 
tection of  the  commerce  clause  of  the  Fed- 
eral Constitution,  so  as  to  be  exempt  from 
local  taxation,  unless  in  course  of  transpor- 
tation from  one  state  to  another,  pursuant 
to  some  existing  contract  of  sale  or  consign- 
ment. Lehigh  &  VV.  13.  Coal  Co.  v.  Junction 
(N.  J.  Err.  &  App.)  15:  514,  68  Atl.  806,  75 
N.  J.  L.  922. 

152.  Grain  owned  by  a  citizen  of  a  state 
which  he  has  shipped  from  one  sister  state 
to  another  upon  a  bill  of  lading  giving  him 
the  privilege  of  unloading  at  the  place  of 
his  residence  for  inspection,  weighing,  clean- 
ing, drying,  sacking,  grading,  and  mixing, 
is  not,  while  in  his  private  elevator  for 
such  purpose,  in  transit,  so  as  to  be  ex- 
empt from  state  taxation  as  interstate  com- 
merce, if  the  period  of  its  detention  is  in- 
definite, and  he  is  under  no  obligation  to 
forward  it  at  any  particular  time,  al- 
though he  intends  ultimately  to  send  it 
forward  under  the  bill  of  lading  to  its  desti- 
nation for  sale.  People  v.  Bacon,  44:  586, 
90  N.  E.  686,  243  IlL  313.         (Annotated) 


COMMERCIAL  AGENCIES. 

Validity  of  state  license  of,  see  Commeece, 
97. 

Admissibility  in  evidence  of  report  by  agent 
of,  see  Evidence,  819. 

Evidence  as  to  methods  of  business  of,  see 
Evidence,  1189. 

False  representations  to,  see  Fbaud  and  De- 
ceit, 50,  62,  63. 

Libel  by,  see  Libel  and  Slandeb,  56-58, 
122,  123;  Pleading,  220. 

Borrowing   money   on   rating   by,   based   on 

0        false  report,  see  Tbusts,  57. 


COMMERCIAL  LA\(r. 

Following  state  decisions  as  to,  see  CoufiTS, 
326. 


COMMERCIAL  PAPER. 

See  Bills  and  Notes;  Checks. 


COMMERCIAL  TRAVELERS. 

Baggage  carried  by,  see  Caebubs,  705-708. 
Acceptance  by  principal  of  order  given  to 

traveling  salesman,  see  Contbacts,  177- 

179,  190,  191. 
Right  of  buyer  to  countermand  order  given 

to,  see  Contbacts,  190,  191. 
Damages  for  loss  or  delay  of  sample  trunks 

during    transportation,    see    Damages, 

299,  300. 
Damages  for  personal  injury  to,  see  Dam- 
ages, 353. 
Burden  of  proving  period  of  employment  of, 

see  Evidence,  530,  531. 
Digest  1-52  L.R.A.(N.S.) 


Burden  of  proving  authority  of,  see  Evi- 
dence, 174. 

Injunction  against  violation  of  contract  by, 
see  Injunction,  68. 

Liability  of  innkeeper  for  loss  of  goods  of, 
see  Innkeepers,  19. 

Discrimination  in  license  tax  on,  see  Li- 
cense, 90. 

Duty  of  employer  of,  to  provide  work,  see 
Master  and  Servant,  2. 

Place  of  sale  of  adulterated  confectionery 
by,  see  Sale,  25,  26. 

In  general,  see  Principal  and  Agent. 


COMMISSARY. 


Contract  as  to,   in   restraint  of  trade,   see 
Contbacts,  541. 


COMMISSIONER  OF  DEEDS. 

Evidence  on  prosecution  of,  for  false  certifi- 
cation to  acknowledgment,  see  Evi- 
dence, 1905. 

In  general,  see  Notaby. 


COMMISSIONERS. 

Exempting  public  commissioners  from  neces- 
sity of  furnishing  appeal  bond,  see  Ap- 
peal AND  Errob,  141. 

Appropriations  for  salary  and  expenses  of 
tax  commissioner,  see  Appbopriations, 
9-13. 

Government  of  cities  by,  see  Commission 
Government. 

Delegation  of  power  to,  see  Constitutional 
Law,  I.  d,  4. 

Requiring  appointment  of,  from  dominant 
political  parties,  see  Courts,  92,  137 ; 
Officers,  10. 

Order  to  produce  books  and  records  of  in- 
solvent bank  before  bank  commissioner, 
see  Criminal  Law,  110. 

Competency  of  commissioners  in  eminent 
domain  proceedings,  see  Eminent  Do- 
main, 160,  161. 

Award  by  commissioners  in  condemnation 
proceeding,  see  Eminent  Domain,  11. 
c,  2. 

Commissioner  of  deeds,  see  CommissiojTF^ 
OF  Deeds. 

Validity  of  regulations  by  food  commis- 
sioner, see  Food,  7. 

Injunction  against  pure  food  commissioner, 
see  Injunction,  322-324. 

Necessity  of  permit  from  highway  commis- 
sioners to  make  use  of  boulevard,  see 
Highways,  27. 

Jury  commissioners,  see  Juet  Commission- 
ers. 

Appointment  of  tax  commissioners,  see 
Officers,  21,  38. 

Liability  of  state  building  commissioners  for 
discharge  of  contractor,  see  Officers, 
99. 

De  facto  commissioner  of  insurance,  se« 
Officebs,  116. 


COMMISSION  GOVERNMENT— COMMIITEE. 


499 


Park  commissioners,  see  Park  Commission- 
ers. 

Discretion  of  trial  judge  as  to  appointment 
of  commissioners  to  determine  value  of 
land  in  partition  proceedings,  see  Par- 
tition, 17. 

Power  of  budget  commissioners  to  change 
sum  levied  as  tax,  see  Taxes,  154. 

See  also  CoMMissioiss. 

1.  A  board  of  commissioners  having 
authority  to  determine  what  streams  contain 
fish  of  sufficient  value  to  warrant  the  pro- 
hibition of  casting  sawdust  into  tlie  stream 
for  their  preservation  is  not  bound  to  act 
on  sworn  evidence.  Cora.  v.  Sisson,  i:  752, 
75  N.  E.  619,  189  Mass.  247. 

2.  The  insertion,  in  a  statute  conferring 
upon  park  commissioners  jurisdiction  of  a 
section  of  a  public  river,  of  a  clause  giving 
the  right  to  forbid  the  taking  of  ice  from 
a  specified  portion  of  it,  does  not  exclude 
their  power  to  forbid  taking  ice  from  other 
portions,  wnere  it  is  necessary  to  carry  out 
the  purposes  for  which  jurisdiction  was  con- 
ferred upon  them.  Park  Comrs.  of  Des 
Moines  v.  Diamond  Ice  Co.  3:  1103,  105  N. 
W.  203,  130  Iowa,  603. 


COMMISSION   GOVERNMENT. 

Act  validating  adoption  of  commission  form 

of    government,     see    Constitutional 

Law,  44. 
Delegation   of   power   by   statute   providing 

for,  see  Constitutional  Law,  79,  107. 
Uncertainty    of    statute   providing    for,    see 

Statutes,  41. 
Special  legislation  as  to,  see  Statutes,  171, 

172,  174,  175. 
Construction   of   statute   providing  for,   see 

Statutes,  226. 
Statute  providing  for,  as  amending  prior  act 

by  mere  reference  to  title,  see  Statutes, 

357. 
In   general,   see  Municipal  Cobpobations, 

9-12. 


♦  «  » 

COMMISSION  MERCHANTS. 

See  Factobs. 

•-•-♦ 

COMMISSIONS. 

Of  stock  brokers,  see  Brokers,  1-3. 

Of  real  estate  brokers,  see  BBOKBass,  II.  b. 

Of  administrator,  see  Executobs  and  Ad- 
ministrators, IV.  c,  2. 

Of  insurance  agent,  see  Insubance,  31-33; 
Pbincipal  and  Agent,  17,  18. 

Of  agent,  generally,  see  Principal  and 
Agent,  106,  109,  110,  115-117. 

Of  trustee,  see  Trusts,  125. 

Right  to  recover  commissions  for  illegal  sale 
of  intoxicating  liquors,  see  Contracts, 
576. 

Digest  1-52  L.R.A.(N.S.) 


As  element  of  damages  for  unlawful  termi- 
nation of  contract  of  employment,  see 
Damages,  20V. 

Loss  of,  as  element  of  damages  for  personal 
injury,  see  Damages,  354. 

Combination  to  fix  rates,  see  Monopoly 
AND  Combinations,  62,  63. 

Liability  of  subagent  to  account  for  secret 
commission,  see  Pbincipal  and  Agent, 
106. 

Finality  of  order  of  court  affirming  order 
of  commission  for  purpose  of  appeal, 
see  Appeal  and  Error,  44. 

Government  of  cities  by,  see  Commission 
Government. 

Review  by  court  of  award  by  commission 
under  workmen's  compensation  act,  see 
Constitutional  Law,  135. 

Delegation  of  power  to,  see  Constitutional 
Law,  I.  d,  4. 

Court's  power  to  test  jurisdiction  of,'  see 
Courts,  3. 

Requiring  members  of,  to  be  appointed  from 
dominant  political  parties,  see  Courts, 
92,  137;  Officers,  10. 

To  take  testimony,  see  Depositions,  4,  5. 

Entomological  commission,  see  Entomologi- 
cal Commission. 

To  fix  gas  rates,  see  Gas,  24-26. 

Interstate  Commerce  Commission,  see  Inter- 
state Commerce  Commission. 

Revocation  of  license  by,  see  License,  30. 

Power  to  forbid  book  making  at  race  tracks 
where  power  to  regulate  races  has  been 
committed  to  it,  see  License,  42. 

To  issue  permits  for  hydraulic  mining,  see 
Mines,  28. 

Appointment  of  members  of  tax  commission, 
see  Officers,  21,  38. 

Tax  commission  in  general,  see  Taxes,  III. 
c. 

Public  service  commissions,  see  Public 
Service  Commissions. 

Right  to  examine  records  of,  see  Records 
and  Reoobding  Laws,  8,  9. 

See  also  Commissionebs. 


COMMITMENT. 


For  contempt,  see  Contempt,  67,  110,  111. 

Necessity  of  formal  commitment  of  one  sen- 
tenced for  crime,  see  Criminal  Law, 
237. 

Review  of,  on  habeas  corpus,  see  Habeas 
COBPUS,  35,  36. 

As  to  imprisonment,  generally,  see  Cbimi- 
NAL  Law,  IV. 


COMMITTEE. 


Delegation  of  power  to,  see  Constitutional 

Law,  I.  d,  4. 
Of  political  party,  see  Elections,  81. 
Of    incompetent    person,    see    Incompetent 

Persons,  VI. 
Of  legislature,  see  Legislatxjee,  1. 


500 


COMMODITIES— CX)MMON  LAW. 


Liability  of  executive  committee  appointed 
at  public  meeting  for-  supplies  ordered 
by  it,  see  Peincipal  and  Agent,  112. 


♦  »» 


COMMODITIES. 


Discrimination  against,  by  carrier,  see  Car 
BIEBS,  1067,  1070. 


♦  >» 


COMMON. 


Diversion  of  land  dedicated  for,  see  Dedica- 
tion, 17. 

Necessity  of  consent  of  municipality  to  con- 
struction of  subway  under,  see  MuNici- 
.  PAL  COBPOBATIONS,  302,  303. 

Lease  of,  see  Municipal  Cobpobations,  306, 
337. 

^ « » 


COMMON   CARBIERS. 

See  Cabbiebs. 

♦-•-♦ 


COMMON   COUNTS. 

Recovery  under,  see  Assumpsit,  6-8. 

♦-•-♦ 

COMMON  KNOWLEDGE. 

See  Evidence,  2057. 


wau.y.i'ti  'jt 


COMMON  liAW. 


Common-law  exception  as  to  carrier's  liabil- 
ity, see  Cabriers,  788. 

Vested  right  in  rule  of,  see  Commebce,  58. 

Presumption  as  to,  see  Conflict  of  Lavs^s, 
36;  Evidence,  72-79. 

Modification  of,  as  judicial  question,  see 
Courts,  81. 

Determining  common  law  of  other  state, 
see  Courts,  313-315;  Evidence,  72-79. 

Determining  rule  of,  prior  to  3775,  see 
Courts,    314. 

Adoption  of  common-law  rule  as  to  suffi- 
ciency of  indictment,  see  Criminal 
Law,  115. 

Imposition  of  common-law  penalty  for  stat- 
utory offense,  see  Criminal  Law,  226. 

Adoption  of  common-law  maxim  that  no  one 
shall  profit  by  his  oWn  wrong,  see  De- 
scent AND  Distribution,  9c. 

Statute  against  fraudulent  conveyances  as 
part  of,  see  Fraudulent  Conveyances, 
1. 

Sufficiency  of  common-law  indictment  to 
support  conviction  for  statutory  crime, 
see  Indictmeni,  etc.,  124. 

Digest   1-52  I..R.A.(N.S.) 


Legality,  at  common  law,  of  sale  of  intoxi- 
cating liquors,  see  Intoxicating  Li- 
quors, 78. 

As  to  joint  stock  companies,  see  Joint 
Stock  Company,  2. 

Common-law  marriage,  see  Marriage,  II.  b. 

Effect  of  statute  providing  for  change  of 
name  on  right  to  eti'ect  change  by  com- 
mon-law method,  see  Name,  G. 

Resorting  to,  in  construction  of  statute,  see 
Nuisances,  4;   Statutes,  191,  245. 

Strict  construction  of  statutes  in  deroga- 
tion   of,    see    Statutes,    270-272. 

Common-law  action  for  collection  of  tax, 
see  Taxes,  202. 

1.  The  Criminal  Code  of  Canada  does 
not  contain  the  whole  of  the  criminal  com- 
mon law  of  England  in  force  in  Canada; 
but  such  law  is  in  force  except  in  so  far  as 
the  Code  either  expressly  or  by  implication 
repeals  it.  Union  Colliery  Co.  v.  Reg.  2 
B.  R.  C.  222,  31  Can.  S.  C.  81. 

2.  An  unreserved  statement  by  a  court 
as  to  tlie  common-law  rule  will,  in  the 
absence  of  other  authority,  be  assumed  to 
be  based  upon  custom  and  the  unwritten 
law  long  antedating  such  time.  Horace 
Waters  &  Co.  v.  Gerard,  24:  958,  82  N.  E. 
143,  189  N.  Y.  302. 

3.  The  California  court  will  refuse  to 
follow,  upon  the  question  of  water  rights, 
a  rule  of  decision  at  common  law,  if  it  is 
found  unfitted  to  the  radically  changed  con- 
ditions existing  in  that  state,  so  that  its 
application  will  work  a  wrong  and  hard- 
ship rather  than  betterment  and  good.  San 
Joaquin  &  Kings  River  Canal  &  Irrig.  Co. 
V.  Fresno  Flume  &  Irrig.  Co.  35:  832,  112 
Pac.   182,  158  Cal.  626. 

Adoption  of,  from  England. 

4.  By  statute  so  much  of  the  common 
law  of  England  as  is  applicable  and  not  in- 
consistent with  the  Constitution  of  the 
United  States  or  the  Constitution  and  stat- 
utes of  this  state  is  in  force  in  the  state  of 
Nebraska.  Kinkead  v.  Turgeon,  7:  316,  109 
N.  W.   744,  74  Neb.   580. 

5.  The  common  law,  together  with  acts 
passed  by  the  British  Parliament  in  aid 
thereof,  prior  to  the  fourth  year  of  the 
reign  of  James  I.,  is,  by  adoption,  in  force, 
and  prevails,  in  Indiana,  so  far  as  applica- 
ble, and  when  not  inconsistent  with  funda- 
mental laws,  state  or  Federal,  or  with  the 
acts  of  the  state  legislature  or  statutes  en- 
acted by  Congress.  Sopher  v.  State,  14:1/2, 
81  N.  E.  913,  169  Ind.  177. 
Abrogation  of. 

Repeal  of  rule  holding  husband  liable  for 
wife's  torts,  see  Husband  and  Wife, 
16-18. 

6.  An  express  statutory  declaration 
that  all  public  offenses,  both  felonies  and 
misdemeanors,  must  be  defined  or  declared, 
and  the  punishment  thereof  fixed,  by  stat- 
ute, and  not  otherwise,  operates  as  an  ex- 
ception to  the  act  adopting  the  common 
law,  and  prevents  the  punishment  of  com- 
mon-law crimes  as  such.  Sopher  v.  State, 
14:  172,  81  N.  E.  913,  169  Ind.  177. 

7.  An  express  prohibition  by  statute  of 

■:i.'r:  ).f  .ii.J.    VC-r    .l>r>-:- 


COMMON-LAW   MARRIAGE— COMPENSATION. 


501 


contracts  for  municipal  work  with  coun- 
ciluien  does  not,  by  implication,  repeal  the 
common-law  rule  making  contracts  by  mu- 
nicipal corporations  with  councilmen  for 
mercbandise  void.  Bay  v.  Davidson,  9:  1014, 
111  N.  VV.  25,  133  Iowa,  688. 


COMMON-LA^V  MARRIAGE. 

See  Marriage,  II.  b. 


COMMON  RIGHTS. 

Liberal  construction  of  statutes  in  deroga- 
tion of,  see  Statutes,  258, 


COMMON   SCHOOLS. 

See  Schools. 

4  *  »  -^'i  'J 


COMMUNISM. 

Assumpsit  to  recover  property  contributed 
to  communistic  society  upon  withdraw- 
al therefrom,  see  Assumpsit,  4. 

Public  policy  as  to  communistic  tenure  of 
property,  see  Contracts,  455. 

Provision  of  constitution  of  monastic  broth- 
erhood that  gains  and  acquisitions  of 
members  shall  belong  to  the  order,  see 
Religious  Societies,  15. 

1.  Communistic  life  by  the  members  of 
a  religious  corporation  is  not  contrary  to 
public  policy.  State  v.  Amana  Society,  8: 
909,  109  N.  W.  894,  132  Iowa,  304. 

(Annotated) 


COMMUNITIES. 

As  to  communistic  life,  see  Communism. 

♦-•-♦ r- 

COMMUNITY    PROPERTY. 

See  Husband  and  Wife,  II.  c. 


COMMUTATION. 


Of  sentence  as  affecting  credibility  of  con- 
vict, see  Witnesses,  164. 


COMMUTATION   TICKETS. 

See  Carriers,  423,  631. 
Digest   1-52  L.R.A.(N.S.) 


COMPANY   LAW. 

See  Corporations. 

♦-•-• 

COMPARATIVE    INJURIES. 

Effect  of  doctrine  of,  to  defeat  right  to  in- 
junction, see  Injunction,  19-24. 


COMPARATIVE  NEGLIGENCE. 

See  Release,  1. 

♦-*-♦ 


COMPARISON. 

Evidence  of  comparison  of  footprints  with 
shoes  of  one  accused  of  crime,  see  Evi- 
dence, 885,  1989. 

Of  handwriting  generally,  see  Evidence,  IV. 

P- 
By  experts,  see  Evidence,  VII.  m. 
Admissibility    of    writings   for    purpose   of, 

see  Evidence,   IV.   p. 


COMPENSATION. 


Of  attorney,  see  Attorneys,  II.  c;  Cham- 
perty AND  Maintenance,  II. 

Of  trustee  in  bankruptcy,  see  Bankruptcy, 
28. 

Of  stock  brokers,  see  Brokers,  1-3. 

Of  real  estate  brokers,  see  Brokers,  II.  b. 

Of  insurance  agents,  see  Constitutional 
Law,  697,  783;  Corporations,  17;  In- 
surance, 31-33. 

Of  corporate  officer,  see  Corporations,  IV. 
g,  3. 

Of  prosecuting  attorney,  see  District  and 
Prosecuting  Attorneys,  4,  5. 

Of  administrator,  see  Executors  and  Ad- 
ministrators, IV,  c,  2, 

Of  judges,  see  Judces,  V. 

Of    legislative    body,    see    Legislature,    2. 

Of  employees,  see  Master  and  Servant,  I. 
c. 

Of   officers   generally,   see   Officers,   II,   b. 

Of  surviving  partner,  see  Partnership,  75- 
78. 

Of  physician  and  surgeon,  see  Physicians 
AND  Surgeons,  31-35. 

Of  agent,  see  Principal  and  Agent,  106, 
109,   110,   115-117, 

Of  receiver,  see  Receivers,  V, 

Of  minister,  see  Religious  Socibtiies,  X. 

Of  teacher,  see  Schools,  II.  b. 

Of  tax  collector,  see  Taxes,   192. 

Of  trustee,  see  Trusts,  125, 

Of  persons  disappointed  by  election  against 
will,  see  Wills,  412, 

To  municipality  for  construction  of  piAlic 
school  in  park  fee  of  which  city  holds, 
see   Municipal    Corporations,    39. 


502 


COMPETENCY— COMPROMISE     AND  SETTLEMENT. 


To  member  of  dissolved  partnership  for 
managing  and  selling  real  property, 
see  Partnership,  68,  69. 

To  riparian  owner  whose  access  to  water  is 
cut  off  by  improving  navigation,  see 
Waters,    101-104. 

For  taking  of  property,  see  Eminent  Do- 
main, III.  c. 

On  abatement  of  nuisance,  see  Nuisances, 
125. 

Requiring  physician  or  midwife  to  supply 
information  without  compensation,  see 
Constitutional  Law,  638. 


COMPETISirCT. 


Of  commissioners  in  eminent  domain  pro- 
ceedings, see  Eminent  Domain,  160, 
161. 

Of  jurors,  see  Jury,  II.  b. 

Of  witness,  see  Witnesses,  I. 


COMPETITION. 


Right  of,  not  justification  for  inducing 
breach  of  contract,  see  Case,  27. 

Contracts  to  restrain  generally,  see  Con- 
spiracy, III.;  Contracts,  III.  e. 

Implied  agreement  by  one  selling  business 
not  to  compete  with  buyer,  see  Con- 
tracts, 11. 

Withdrawal  of,  as  consideration  for  agree- 
ment to  pay  money,  see  Contracts,  88. 

Sufficiency  of  consideration  for  promise  not 
to  engage  in  competing  business,  see 
Contracts,    79-82. 

Termination  of  contract  not  to  compete  in 
business,  see  Contracts,  721,  722. 

Damages  for  breach  of  contract  not  to  en- 
gage in  competing  business,  see  Dam- 
ages, 120,  231. 

Injunction  against  breach  of  contract  not 
to  engage  in  competing  business,  see 
Injunction,  70-78. 

By  municipality  with  private  business  en- 
terprise, see  Constitutional  Law,  384, 
385. 

Prohibiting  use  and  sale  of  one's  property 
for  purpose  of  destroying  business  of 
competitor,  see  Constititiional  Law, 
462,  725. 

Injunction  against  business  competition  by 
wife,  see  Injunction,  10. 

Injunction  against  combination  to  prevent, 
see  Injunction,  124-128.  a 

Combinations  in  restraint  of,  see  MoiNOPOLY 
AND  Combinations,   II. 

For  public  contract,  see  Public  Improve- 
ments, 15,  16. 

Unfair  competition,  see  Unfair  Competi- 
tion. 


COMPLAINT. 


In   criminal   prosecution,   see   Indictment, 

ETC. 
Digest  1-52  L.R.A.(N.S.) 


Of  plaintiff,  see  Pleading,  II. 
Against  arcliitect  as  basis  for  revocation  of 
license,   see  License,   36. 


COMPOUNDING    CRIME. 

Enforcement  of  note  given  to  compound 
felony,  see  Bills  and  Notes,  156. 

Illegality  of  contract  for,  see  CONTRAcrs, 
493-495,   618,   619. 

Estoppel  to  maintain  action  to  set  aside 
contract  for,   see   Estoppel,   122. 

Sufficiency  of  indictment  for,  see  Indict- 
ment, ETC.,  16. 


COMPOUND    INTEREST. 

See  Interest,  III. 


COMPRESS  COMPANT. 

Provision  in  restraint  of  trade  in  lease  by, 

see  Contracts,  554. 
Injunction    against    monopolistic   least    by, 

see  Injunction,   128. 
Attempt  to  control  compress  business,  see 

Monopoly  and  Combinations,  21. 
Imputing  negligence  of,  to  owner  of  cotton 

left  with  company  to  be  baled,  see  Neg- 

ilQENCE.   255. 


COMPRESSED    AIR. 

Failure  to  warn  employees  of  danger  from, 
see  Master  and  Servant,  748. 

As  dangerous  agency  in  hands  of  employee, 
see  Master  and  Servant,  892,  930, 
931,  988;  Trial,  232. 


COMPROMISE    AND    SETTLEMENT. 

Of  suit,  by  attorney,  see  Attorneys,  44-48, 
52;  Judgment,  337. 

Of  suit  without  consent  of  attorney,  see 
Attorneys,  76-86;  Contracts,  409, 
467-470. 

Of  claim  for  death,  see  Death,  V. 

Of  claim  without  consent  of  guaranty  in- 
surer, see  Insurance,  907-911,  916, 
933. 

Of  infant's  cause  of  action,  see  Infants, 
111,  112;  Judgment,  343. 

Of  will  contest,  see  Wills,  107. 

By  assignor  of  cause  of  action,  see  Assign- 
ment,  20. 

By  surviving  partner,  see  Pabtnebship,  77, 
78. 

By  trustee,  of  suits,  without  knowledge  or 
consent    of    beneficiaries,    see    Tbusts, 
78.  .;...   ...,,   ..„.,...,.    ,,;-: 

C.8  VI)  A.H.vI  S?.-t    U9-^:(I 


eOMPKOMISE  AND  SETTLEMENT. 


603 


Attorney's  power  to  hold  stock  to  compel 
settlement  of  claim  against  client,   see 

AlTORNEYS,   72. 

Basis  for  computing  share  of  attorney  en- 
titled to  certain  proportion  of  recovery 
on  compromise  of  suit,  see  Attorneys, 
84. 

As  consideration  for  note,  see  Biixs  and 
Notes,  30. 

Consideration  for  compromise  agreement 
with  injured  employee,  see  Contracts, 
92. 

Validity  of  compromise  of  cause  of  action 
for  criminal  conversation,  see  Con- 
tracts,  494. 

Authority  of  assistant  manager  to  compro- 
mise claim  of  injured  employee,  see 
Corporations,   145. 

Effect  of  settlement  of  main  cause  of  dis- 
missal of  proceeding  for  contempt,  see 
Dismissal   and    Discontinuance,    12. 

Evidence  of  attempt  at,  see  Evidence,  1319, 
1320. 

Evidence  of  settlement  with  third  person  in 
action  for  personal  injury,  see  Evi- 
dence, 1252. 

Settlement  of  action  against  one  joint  tort 
feasor  as  bar  to  action  against  otlier, 
see  Joint  Creditors  and  Debtors,  II. 

Dismissal  of  suit  based  upon  compromise, 
see  Judgment,  104. 

Settlement  between  partners,  see  Partner- 
ship, 59-64,  85,  86. 

With  principal  debtor  after  appointment  of 
receiver,  see  Receivers,  23. 

Question  for  jury  as  to  voluntary  compro- 
mise of  claim,  see  Trial,  603. 

See  «<lso  Accord  and  Satisfaction. 

1.  Failure  to  comply  with  the  terms  of 
a  compromise  by  which  an  unliquidated 
claim  for  services  is  settled  by  a  present 
payment  of  a  sum  less  than  demanded  en- 
titles the  creditor  to  retain  what  he  has 
received  and  sue  on  his  original  demand. 
Shubert  v.  Rosenberger,  45:  1062,  204  Fed. 
934,  123  C.  C.  A.  934.  (Annotated) 

2.  The  intention  to  compromise  a  doubt- 
ful right  is  not  shown  by  a  deed  in  which  the 
grantor  concedes  that  the  grantee  is  entitled 
to  a  two-thirds  interest  in  the  property,  the 
grantor  claiming  title  only  to  the  remaining 
third,  although  the  deed  recites  that  the 
grantor  intends  to  convey  the  whole  of  her 
interest  whatever  it  may  be.  Burton  v. 
Haden,  15:  1038,  60  S.  E.  736,  108  Va.  51. 

3.  Words  of  general  release  in  an  in- 
strument reciting  that  it  was  executed  to 
carry  into  effect  an  agreement  to  com- 
promise and  terminate  litigation  will  be 
limited  in  their  scope  to  the  objects  pro- 
vided for  in  the  compromise  agreement. 
Van  Slyke  v.  Van  Slvke  (N.  J.  Err.  & 
App.)  31:  778,  78  Atl.  179,  80  N.  J.  L.  382. 
Validity;  -tvhen  binding. 

Power  of  agent  of  public  contractor  to  com- 
promise dispute  with  city  as  to  amount 
due  him,  see  Accord  and  Satisfactio??, 
19. 

Digest  1-52  L.R.A.(N.S.) 


Of   suit   by   attorney,    see   Attorneys,   44- 

48,  52;   Judgment,  337. 
Of  claim  for  death,  see  Death,  V, 
Collateral  attack  on,   sec  Judgment,   143. 

4.  A  compromise  agreement  in  an  ac- 
tion by  one  who  has  fraudulently  secured 
letters  of  administration  upon  the  estate  of 
a  person  killed  by  another's  negligence  is 
not,  if  judgment  is  not  entered  before  de- 
fendant receives  notice  of  the  fraud,  binding 
upon  the  estate,  so  as  to  bind  the  true  ad- 
ministrator appointed  after  the  fraudulent 
administration  has  been  set  aside.  Carr 
V.  Illinois  C.  R.  Co.  43:  634,  60  So.  277,  180 
Ala.  159.  (Annotated) 

5.  The  giving  of  a  promissory  note  for 
the  amount  of  a  bill  for  repairing  an  auto- 
mobile, to  secure  the  release  of  an  attach- 
ment thereon,  constitutes  a  compromise 
and  settlement  of  a  dispute  as  to  the 
amount  of  the  bill,  and  precludes  subse- 
quent denial  of  the  claim  upon  the  ground 
that  the  repairs  were  not  properly  made. 
Kendall  v.  Rossi,  45:  985,  87  Atl.  186,  35 
R.  I.  451. 

6.  An  acknowledgment  in  writing  that 
an  amount  received  is  all  that  is  due,  after  a 
dispute  as  to  what  is  due,  is  binding  as  a 
compromise.  Earle  v.  Berry,  i:  867,  61  Atl. 
671,  27  R.  I.  221. 

Relief  from. 

Evidence  in  action  to  set  aside  compromise 
for  fraud,  see  Evidence,  1550. 

7.  The  settlement  of  an  account  for  a 
less  amount  than  was  due,  because  of  a  mu- 
tual mistake  as  to  the  state  of  the  account, 
may  be  set  aside  and  the  true  balance  re- 
covered. Beck  V.  School  Dist.  No.  2,  46: 
279,  131  Pac.  398,  54  Colo.  546.   (Annotated) 

8.  An  insurance  company  which,  in  or- 
der to  avoid  suit,  pays  the  amount  of  a  pol- 
icy on  the  life  of  one  who  has  disappeared, 
upon  demand  of  those  entitled  to  recover 
in  case  of  his  death,  is  bound  by  its  elec- 
tion, and  cannot  demand  a  return  of  the 
amount  upon  the  reappearance  of  the  in- 
sured. New  York  L.  Ins.  Co.  v.  Chitten- 
den, 11:  233,  112  N.  W.  96,  134  Iowa,  613. 

(Annotated) 
'Witlidraxcral   of  offer. 

9.  In  a- suit  to  enjoin  the  sale  of  prop- 
erty under  a  deed  of  trust,  and  to  compel 
a  release  of  the  lien,  the  mortgagor  cannot 
avail  himself  of  an  offer,  made  by  the  mort- 
gagee by  way  of  compromise,  to  accept  a 
specified  sum  in  full  of  the  claim,  which 
was  withdrawn  a  month  later  and  before 
its  acceptance  by  the  mortgagor.  Gillaspie 
V.  Scottish  Union  &  Nat.  Ins.  Co.  11:  143,- 
56  S.  E.  213,  61  W.  Va.  169. 
Collateral  attack  on. 

10.  The  validity  of  a  compromise  of, 
and  stipulation  to  dismiss  upon  the  merits, 
his  client's  cause  of  action,  unauthorizedly 
made  by  an  attorney  after  action  had  been 
brought,  may  be  tested  in  a  subsequent  ac- 
tion upon  the  same  cause  brought  through 
another  attorney,  wherein  the  defendant 
pleaded  in  bar  the  compromise  and  settle- 
ment, and  the  plaintiff  replied  that  the 
settlement  was  unauthorized  and  fraudu- 
lently entered  into  by  the  attorney, — where 


504 


COMPROMISE    VERDICT— CONCLUSIVENESS. 


the  compromise  and  stipulation  have  not 
been  followed  by  judgment.  Gibson  v.  Nel- 
son, 31:  523,  12t)  N.  W.  731,  111  Minn.  183. 


COMPROMISE  VERDICT. 

As  ground  for  new  trial,  see  New  Trial, 
48-50. 


COMPULSORY  EDUCATION. 

See  Indictment,  etc.,  53;  Schools,  13,  14. 


COMPULSORY  REFERENCE. 

See   Reference,   13-15, 


COMPULSORY    SERVICE. 

By  carrier,  see  Cabbiebs,  IV.  b. 

By  electric  light  company,  see  Electric 
Lights. 

By  gas  company,  see  Gas,  II. 

By  street  car  company,  see  Stbeet  Rail- 
ways,  12,  13. 

By  telegraph  company,  see  Telegraphs,  II. 
a,  1. 

By  telephone  company,  see  Telephon&s,  7. 

By    warehouseman,    see    Warehousemen. 

Of  water  company,  see  Waters,  III.  b,  2. 

Compelling  corporation  constructing  sewer 
to  permit  connection  therewith,  see 
Drains  and  Sewers,  1. 


COMPULSORY  VACCINATION. 

See  Health,  III.  b;   Schools,  14,  16-18 


COMPUTATION. 

Of  time,  see  Time,  5-9. 


CONCEALED   AVEAPONS. 

Forfeiture  of,  see  Forfeiture,  4. 

Homicide  by  one  carrying,  see  Homicide. 
40. 

Death  of  insured  while  violating  law  pro- 
hibiting carrying  of,  see  Insurance. 
777. 

In  general,  see  Carrying  Weapons,  4-8. 

Digest   1-52  L.RJ^.(N.S.) 


CONCEALING   ASSETS. 

Production  of  bankrupt's  books  as  infring- 
ing privilege  against  self-crimination, 
see  Criminal  Law,  117,  118. 

Impeaching  witness  by  showing  conviction 
for  fraudulently  concealing  property 
from  trustee  in  bankruptcy,  see  Wit- 
nesses, 162. 


CONCEALMENT. 


Of  assets,  see  Concealing  Assets. 

As  a  fraud,  see  Fraud  and  Deceit,  II. 

Effect  of,   on   validity   of   insurance   policy, 

see   Insurance,   200. 
Effect    of,    on    running    of    limitations,    see 

Limitation   of   Actions,   11.  e. 
By  manufacturer  of  defects  in  articles  sold, 

see  Negligence,  49,  50,  52,  53. 


CONCERT  HALLS. 


Prohibiting  employment  of  children  in,  see 
Infants,  6-8. 


CONCESSIONARIES. 

At  places  of  amusement,  liability  for  negli- 
gence of,  see  Amusements,  11,  12; 
Master  and  Servant,  994. 


CONCILIATION   BOARD. 

Delegation  of  power  to,  see  Constitution- 
al Law,  124. 
In  general,  see  Arbitration. 


CONCLUSIONS. 


Admissibility    in    evidence,    see    Evidence, 

VII. 
In  indictment,  see  Indictment,  etc.,  55. 
Averment  of,  see  Pleading,  I.  f. 


CONCLUSIVENESS. 


Of   judgment   on   appeal,    see    Appeal   and 

Error.  VIII.  e. 
Of  bill  of  lading  in  hands  of  transferee,  see 

Bills  of  Lading,  7. 
Of    architect's    certificate,    see    Contracts, 

677-680. 
Of    decision    of   trustees   of    police    pension 

fund,  see  Courts,   194. 
Of    certificate   of   nomination,   see   Courts, 

224. 
Of    decisions    of    associations,    ecclesiastical 

tribunals,  etc.,  see  Courts,  I.  d. 
Of  judgment  generally,  see  Judgment,  II. 


CONCRETE— CONDITION. 


505 


Of  decision  of  one  offering  reward  in  prize 

contest,  see  Prize  Contest,  4. 
Of  findings  of  referee,  see  Reference,  19. 


CONCRETE. 


Lien  for  material  used  for  molds  for  con- 
crete work,  see  Mechanics'  Liens,  25- 
27. 

•-•-♦ 


CONCURRENT    JURISDICTION. 

Over  waters  of  boundary  river,  see  Courts, 

19. 
Over  criminal  offenses,  see  Criminal  Law, 

III. 


CONCURRENT    NEGLIGENCE. 

Of  master  and  fellow  servant,  see  Master 

AND  Servant,  II.  e,  3. 
In  general,  see  Negligence,  26,  27. 


■♦♦» 


CONCURRENT  PROCEEDINGS. 

Against  accused,  see  Criminal  Law,  II.  e. 

♦  »  » 

CONCURRENT  REIMEDIES. 

See  Election  of  Remedies. 


# » » 


CONCURRING   CAUSES. 

Of  ini'urv  on  liighwav,  see  Highways,  164, 

199-201. 
Of  death,  see  Homicide,  52-56. 


CONCUSSION. 


Injury  by  concussion  of  air  caused  by  blast- 
ing, see  Blasting,  7. 


CONDEMNATION. 

Of  property,  see  Eminent  Domain. 


CONDITION. 


Precedent  to  suit  generally,*  see  Action  or 

Suit,  I.  b. 
To  taking  of  appeal,  see  Appeal  and  Error, 

III.  d. 
Digest  1-52  L.R.A.(N.S.) 


To  payment  of  deposit  in  savings  bank,  see 
Banks,  23.3,  234,  237. 

To  issuance  of  railroad  aid  bonds,  see 
Bonds,  81,  82. 

To  issuance  of  municipal  bonds,  see  Bonds, 
III.  b,  4. 

To  right  to  paid-up  insurance  policy  after 
forfeiture,   see   Contracts,    443. 

To  subscription  to  corporate  stock,  see 
Corporations,   204,   205. 

To  enforcement  of  stockholder's  liability, 
see  Corporations,  365-369. 

To  right  of  foreign  corporation  to  do  busi- 
ness in  state,  see  Corporations,  423- 
429. 

To  right  of  married  woman  to  rescind  con- 
veyance, see  Ejectment,  24,  25. 

To  maintenance  of  action  against  munici- 
pality for  injury  on  highway,  see 
Highways,   155. 

To  right  to  cancel  insurance  contract,  see 
Insurance,  434-444. 

To  bringing  of  action  on  insurance  policy, 
see  Insurance,  VI.  a. 

To   revocation   of   license,   see   License,   12. 

To  mandamus  suit,  see  Mandamus,   100. 

To  master's  liability,  see  Master  and  Serv- 
ant, 186-191. 

To  right  to  attack  title  of  purchaser  at  fore- 
closure sale,  see  Mortgages,  131. 

To  liability  of  municipality  on  claims,  see 
Municipal  Corporations,  II.  g,  5. 

To  surety's  liability,  see  Principal  and 
Surety,  7-11. 

To  raising  fund  for  erection  of  sch'ool  build- 
ing, see  Public  Moneys,  1. 

To  entrance  into  state  college,  see  State 
Institutions,  1,  2,  4. 

To  supplying  water  to  tenant,  see  Waters, 
425,  426. 

Of  attorney's  right  to  rescind  contract  with 
client,  see  Attorneys,  35. 

Of  stockholder's  right  to  maintain  action, 
see  Corporations,  279-284. 

Of  right  to  carry  on  liquor  business,  see  In- 
toxicating Liquors,  I.  b. 

Of  continuance  in  employment,  see  Master 
AND  Servant,  112. 

Of  sale,  see  Sale,  I.  c. 

Of  revocation  of  grant  of  land  by  state,  see 
State,  2. 

Of  right  to  appeal  to  courts  for  reduction 
of  tax,  see  Taxes,   200. 

Of  right  to  extension  of  time  for  removal 
of  timber,  see  Timber,  7. 

Of  right  to  rescind  land  contract,  see  Vend- 
or AND  Purchaser,  76. 

Of  guardian's  right  to  elect  for  insane 
widow  between  will  and  dower,  see 
Wills,  362. 

In    railroad    tickets,    see    Carriers,    II.    m. 

In  pass,  see  Carriers,  II.  m,  3. 

In  street  car  transfer,  see  Carriers,  653, 
654. 

In  option  to  purchase  underlying  coal,  see 
Contracts,  168. 

In  pardon,  see  Criminal  Law,  IV.  h,  2. 

In  restraint  of  marriage,  see  Contracts, 
472-476. 

In  contract,  see  Contracts,  IV.  d. 

For  rescission  of  contract,  see  Contracts, 
V.  c,  2. 


506 


CONDITIONAL  FEE— CONDUITS. 


In  lease  of  railroad,  not  to  raise  freight 
rates,  see  Coiipokations,  275. 

In  pardon,  see  Criminax  Law,  IV.  h,  2. 

In  insurance  contract,  see  Insubance,  III. 
e,  VI.  a. 

In  oil  and  gas  lease,  see  Mines,  60, 

In  telegram,  see  Telegraphs,  II.  d. 

In  will,  see  Wills,  III.  g,  4. 

In  terrorem,  see  Wills,  281. 

Attached  to  charitable  gift,  see  Chamties, 
I.  c. 

On  sale  of  goods  for  resale,  that  purchaser 
shall  not  handle  goods  of  other  deal- 
ers, see  Constitutional  Law,  499. 

As  to  dower  in  conditional  estate,  see  Dow- 
er, 18. 

Attached  to  gift  to  city,  see  Municipal 
Corporations,  305. 

Relating  to  real  property,  see  Covenants 
AND  Conditions. 

Distinction  between  covenant  and  condition, 
see  Covenants  and  Conditions,  4-10. 

Binding  eflfect  of  conditions  of  sale  an- 
nounced by  auctioneer,  see  Auction,  5. 

Making  deposit  for  benefit  of  another  sub- 
jest  to  condition,  see  Banks,  59. 

Defeating  action  on  note  by  showing  fail- 
ure to  comply  with,  see  Bills  and 
Notes,  122,  204. 

Ejectment  on  breach  of  condition  subsequent 
where  plaintiff  is  out  of  possession,  see 
Ejectment,  11. 

Right  to  compensation  of  grantor  of  estate 
upon  condition  where  property  is  tak- 
en for  public  use,  see  Eminent  Do- 
main, 251. 

Burden  of  proof  as  to  performance  of,  see 
Evidence,  543,  549. 

Parol  evidence  of,  see  Evidence,  VI.  i." 

Sufficiency  of  evidence  to  admit  proof  of, 
see  Evidence,  2430. 

Imposing  conditions  on  resale  of  patented 
article,  see  Patents,  IV. 

Limiting  costs  as  condition  to  permitting 
amendment  of  pleading,  see  Pleading, 
91. 

Necessity  of  pleading  specially  condition 
subsequent,  see  Pleading,  470. 

Ab  to  terms  of  resale  of  article  sold,  see 
Sale,  181,  182. 


CONDITIONAL   FEE. 

In  general,  see  Deeds,  77,  78. 

Levy  on,  see  Levy  and  Seizure,  12. 

Devise  of,  see  Wills,  242-:247. 


CONDITIONAL  LIMITATIONS. 

See  Wiixs,  III.  g,  6. 


CONDITIONAL    PARDON. 

See  Criminal  Law,  IV.  h,  2. 
Digest  1-52  L.R.A.(N.S.) 


CONDITIONAL  PAYMENT. 

By  giving  check,  see  Payment,  7. 

^—^ 

CONDITIONAL   SALES. 

Of  real  estate,  see  Insurance,  824;  Vendob 

and  Purchaser,  74,  86. 
Of  personalty,  see  Sale,  I.  c 


CONDITION  PRECEDENT. 

In    general,    see    Covenants    and    Condi- 
tions, 11-13. 


CONDITION  SUBSEQUENT. 

In  general,  see  Covenants  and  Conditions, 

11-13,  40,  41,   43. 
In  will,  see  Wills,  III.  g,  4. 


CONDONATION. 


VLOO 


Of  assault  and  trespass,  see  Assault  and 
Battery,  29. 

Of  cause  for  divorce,  see  Contracts,  121; 
Divorce  and  Separation,  72-78. 

Of  cruelty  as  ratification  of  conveyance  ob- 
tained by,  see  Husband  and  Wife,  103. 


CONDUCT. 

Estoppel  by,  see  Estoppel,  III.  e. 


CONDUCTOR. 


Custom  of,  see  Carriers,  14. 

Authority  to  employ   servant,  see  Masteb 

AND  Servant,  4,  5. 
Authority  to  employ  physician,  see  Masteb 

AND  Servant,  9. 
Contributory    negligence    of,    see  •  Masteb 

and  Servant,  II.  c. 


CONDUITS. 


In  highways,  see  Highways,  51-57;   Limi- 
tation OF  Actions,  70. 

Injunction    to  'prevent    interference    with, 
see  Injunction,  369. 

Injury  to  child  because  of  unguarded  con- 
duit, see  Negligence,  171.     

'L.J.  aC—l   titeaKi 


CONFECTIONERY-— CONFLICT  OF  LAWS. 


507 


CONFECTIONERY. 

Adulteration    of,    see    Conblict    of    Laws, 
101. 


CONFEDERATE    SOIJ>IERS. 

Pensions  to,  see  Public  Moneys,  12. 

♦  *» 

CONFESSION. 

Evidence  of  generally,  see  Evidence,  VIII. 

SuflBciency  of  corroboration  of,  see  Evi- 
dence, 2352,  2353. 

Admissibility  of  extra  judicial  confession 
by  stranger,  see  Evidence,  1404. 

Instructions  as  to  weight  and  value  of,  see 
Tbial,   911. 

Judgment  by,  see  Judgment,  I.  b. 


CONFIDENCE  GAME. 

See  False  Pretenses,  17. 


CONFIDENTIAL  ADVISER. 

Presumption    of   fraud   in   case   of   convey- 
ance to,  see  Evidence,  269. 


CONFIDENTIAL  COMMUNICA- 
TIONS. 

See  Peivileged  Communications. 


CONFIDENTIAL    RELATIONS. 

Between    corporation    and    its    officers,    see 

Corporations,  IV.  g,  4. 
Burden  of  establishing,  see  Evidence,  115, 

116,  268. 
Presumptions  from,  see  Evidence,  115,  116, 

268,  269. 
Fraud  in  abuse  of,  see  Fraud  and  Deceit, 

3. 
What  constitutes  confidential  relation  which 

will    sustain    parol    promise    to    hold 

property      conveyed      in      trust,      see 

Trusts,  52. 


CONFINEMENT. 


Manslaughter  in  failing  to  furnish  medical 
assistance  during,  see  Homicide,  14. 

As  personal   ailment,  see  Insurance,   344. 

As  to  miscarriage,  see  Miscarriage. 

Of  convicted  criminal,  see  Criminal  Law, 
IV. 

Of  lunatic,  see  Incompetent  Persons,  IV. 

Digest  1-52  L.R.A.(N.S.) 


CONFIRMATION. 

Of  land  grant,  what  constitutes,  see  Con- 
tracts, 374,  375. 

Of  judicial  sale,  see  Judicial  Sale,  IV. 

Of  foreclosure  sale,  see  Mortgages,  VI.  g,  5. 

Of  appointment  to  office,  see  Officers,  21, 
38. 


CONFISCATION. 


By  regulation  of  carrier's  rates,  see  Car- 
riers, 1037,  1044;  Courts,  250;  Jury, 
14. 

By  requiring  carrier  to  maintain  station  at 
certain  place,  see  Carriers,  1083. 

In  exercise  of  power  to  repeal  corporate 
charter,  see  Constitutional  Law,  361. 

Of  gambling  devices,  see  Constitutional 
Law,  370,  609,  652. 

Of  property  of  water  company,  see  Consti- 
tutional Law,  421. 

Of  fishing  net,  see  Constitutional  Law, 
610. 

Of  milk,  see  Constitutional  Law,  612,  613. 

Of  private  property,  jurisdiction  of  suit  to 
prevent,  see  Courts,  231. 

By  regulation  of  gas  rates,  see  Eminent  Do- 
main, 222;  Gas,  10,  27. 

Of  estate  of  one  dying  intestate  without 
heirs,  see  Escheat. 


CONFLICT  OF  LAWS. 

J.  As  to  rights,  1—131. 

a.  In  general,  1,  S. 

b.  As  to  contracts;  insurance,  8— 

63. 
■m  7t*L      1.  In  general,  3—17. 

2.  Negotiable       instruments; 

bonds;  mortgages;  loans; 

interest,   18—39. 
8.  Insurance     matters,     40— 

47. 
4.  Carriers'     contracts,     4S— 

55. 
6.  As  to  telegrams,  56—58. 

6.  Of  married  man  or  wom- 

an,  59,    60. 

a.  Of  married  man. 

b.  Of     married     tvoman, 

59,   60. 

7.  Of  infants,  61-63. 

c.  Status;  marriage ;  domestic  re- 

lations;  legitimation,   64—83. 

d.  Corporate  matters,  84—89. 

1.  In  general,   84,  85. 

2.  Liability    of    officers    and 

stockholders,    86—89. 

a.  Officers,  86,  87. 

b.  Stockholders,    88,    89. 

e.  Torts    and    ciHmes    generally, 

90-102. 

1.  Torts   generally;   personal 

injuries,    90—03. 

2.  Death,    94-100. 

3.  Crimes,  101,   102. 


608 


.^.V    CONFLICT  OF  LAWS,  I.  a,  b,  L 


/. — continued. 

f.  Insolvency ;     assignments     Jar 
.  creditors,  103. 

g.  Rights   in   property   generally, 

104—110. 

h.  Transfers  of  property  gener- 
ally,  111-115. 

i.  Chattel  mortgages;  condition- 
al sales;  leases  of  personalty, 
116— lis. 

j.  Descent        and        distribution; 
uills,    119-131. 
JI.  Remedies,    132—165. 

As  to  validity  of  claims  against  bankrupt's 
estate,  see  Bankruptcy,  126. 

As  to  jurisdiction  over  nonresidents,  general- 
ly, see  Courts,  I.  b. 

As  to  conflict  of  authority  between  courts, 
see  Courts,  IV. 

How  common  law  of  other  state  determined, 
see  Courts,  313-315. 

Right  of  country  of  dbmicil  to  personalty 
left  in  another  jurisdiction  by  person 
dying  intestate  and  without  heirs,  see 
Escheat,  1. 

Judicial  notice  of  foreign  laws,  see  Evi- 
dence, 3,  4. 

Admissibility  of  judgment  of  other  state, 
see  Evidence,  770. 

Federal  decision  as  evidence  of  law  of  state 
in  which  court  is  sitting,  see  Evidence, 
771. 

Presumption  as  to  law  of  other  state  or 
country,  see  Evidence,  II.  a. 

Action  by  foreign  administrator,  see  Execu- 
tors AND  Administrators,  91,  92. 

Situs  of  debt  for  purpose  of  garnishment,  see 
Garnishment,  1.  d. 

As  to  validity  and  effect  of  foreign  judg- 
ment, see  Judgment,  IV. 

Necessitv  of  pleading  law  of  other  state,  see 
Pleading,  59-63. 

Powers  and  rights  of  foreign  or  ancillary  re- 
ceivers, see  Receivers,  VI. 

Question  for  court  as  to  what  law  of  other 
state  is,  see  Trial,  158. 

As  to  venue  of  action,  see  Venue. 

—c^    -«*ii.).     J.  As  to  rights,  .v 

.?<■>— ?>r.        o.  In  general. 

--•tt '.>•»(   -to 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

1.  A  statute  authorizing  a  recovery 
back  of  money  paid  for  intoxicating  liquors 
can  have  no  application  to  sales  made  out  of 
the  state.  Hamilton  v.  Joseph  Schlitz 
Brewing  Co.  2:  1078,  105  N.  W.  438,  129 
Iowa,   172. 

2.  A  state  statute  providing  that  a 
cause  of  action  which  has  accrued  under  or 
by  virtue  of  the  laws  of  any  other  state  or 
territory  may  be  sued  upon  in  any  of  the 
courts  of  the  state,  by  the  person  or  persons 
who  are  authorized  to  bring  and  maintain 
the  action  thereon  in  the  state  or  territory 
where  the  same  arises,  merely  prescribes  the 
persons  who  may  sue,  and  does  not  enlarge 
the  cause  of  action.  Rochester  v.  Wells, 
Digest  1-52  I..R.A.(N.S.) 


Fargo,   &    Co.    Express,   40:  1095,    123    Pac. 
729,  187  Kan.  164. 

6.  As  to  contracts;  insurance. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  statute  of  frauds,  see  infra,  136,  137. 

As  to  transfers  of  property  generally,  see 
infra,  I.  h. 

Enforcement  of  contract  of  corporation  in- 
corporated in  several  states,  see  Corpo- 
rations, 9,  10. 

As  to  validity  of  Sunday  contracts,  see  Sun- 
day, 23."^ 

3.  The  law  of  the  place  where  a  contract 
of  sale  is  to  be  performed  will  be  applied  to 
the  interpretation  of  a  provision  that  per- 
formance shall  be  satisfactory  to  the  buyer, 
and  rot  that  of  the  residence  of  the  seller, 
or  ot  the  place  where  the  contract  was  ne- 
gotiated. Inman  Mfg.  Co.  v.  American  Ce- 
real Co.  8:  1140,  110  N.  W.  287,  133  Iowa,  71. 

4.  An  agreement  in  a  deed  whereby  the 
grantee  assumes  and  agrees  to  pay  an  ex-; 
isting  mortgage  on  the  land  conveyed  is  a 
personal  contract,  and  is  governed  by  the 
laws  of  the  state  in  which  the  deed  is  exe- 
cuted and  delivered  and  in  which  the  parties 
reside,  rather  than  by  the  laws  of  another 
state  in  v/hich  the  land  conveyed  is  situated. 
Clement  v.  Willett,  17:  1094,  117  N.  W.  491, 
105  Minn.  267.  (Annotated) 

5.  The  acceptance,  by  subscribers,  of 
an  offer  by  a  foreign  corporation  to  sell  its 
stock  in  the  state  of  their  residence,  com- 
pletes the  contract  there.  Southwestern 
Slate  Co.  V.  Stephens,  29:  92,  120  N.  W.  408, 
139  Wis.  616. 

6.  The  statute  of  a  state  where  the  ac- 
tion is  brought  to  recover  damages  for  in- 
juries to  an  employee,  making  void  unrea- 
sonable contracts  for  notice  of  the  injury  to 
the  employer  as  a  condition  to  maintaining 
an  action  in  such  cases,  is  not  applicable  to 
affect  a  contract  valid  in  the  sister  state 
where  made,  and  in  that  where  the  injury 
occurred,  in  the  absence  of  anything  to  dis- 
close a  legislative  intent  to  make  it  appli- 
cable to  such  contracts.  Chicago,  R.  I.  & 
P.  R.  Co.  V.  Thompson,  7:  191,  97  S.  W. 
459,    100    Tex.    185.  (Annotated) 

7.  A  statute  forbidding  the  employment 
of  children  applies  to  work  done  within  the 
state  under  a  contract  executed  in  another 
state  by  persons  residing  there.  Common- 
wealth V.  Griffith,  25:  957,  90  N.  E.  394,  204 
Mass.   18. 

Public  policy. 

See  also  infra,  62,  63. 

8.  A  plea  of  acceptance  of  benefits  from 
the  relief  department,  which  under  the  con- 
tract of  employment  operates  as  a  release, 
as  a  defense  to  an  action  by  an  employee 
against  a  railroad  company  for  negligent 
injuries,  which  contract  is  valid  in  the  state 
where  made,  does  not  constitute  a  use  of  the 
contract    as    a    weapon    rather    than    as    a 


CONFLICT  OF  LAWS,  I.  b,  2. 


509 


'shield,  so  as  to  be  inadmissible  in  a  suit 
in  another  state,  on  the  theory  that  the  con- 
tract is  against  its  public  policy.  Canna- 
day  V.  Atlantic  Coast  Line  R.  Co.  8:  939,  55 
S.  E.  830,  143  N.  C.  439. 

9.  A  decision  of  the  courts  of  another 
state  in  which  a  contract  by  an  employee 
that  the  acceptance  of  a  benefit  from  the  re- 
lief department  will  preclude  a  suit  against 
the  employer  for  negligent  injury  is  made, 
construing  it  as  requiring  of  the  employee 
an  election,  so  that  ih  case  he  accepts  bene- 
fits he  cannot  bring  sviit,  is  binding  in  an- 
otlier  state,  and  therefore  the  contract  can- 
not be  ignored  in  a  suit  brought  there,  as 
exempting  the  employer  from  liability  for 
negligence,  contrary  to  public  policy.  Can- 
naday  v.  Atlantic  Coast  Line  R.  Co.  8:  939, 
65  S.  E.  836,  143  N.  C.  439. 

10.  The  courts  of  one  state  are  not,  on 
the  ground  of  comity,  required  to  refuse  to 
enforce  payment  of  a  life-insurance  ix)licy 
because  insured  was  executed  for  felony, 
merely  because  it  would  be  against  the  pub- 
lic policy  of  the  state  where  the  conviction 
was  had,  to  permit  a  recovery.  Collins  v. 
Metropolitan  L.  Ins.  Co.  14:356,  83  N.  E. 
542,  232  111.  37. 

11.  The  courts  of  a  state  in  which  a  con- 
tract by  a  railroad  company  to  give  the 
exclusive  right  to  use  its  cars  for  advertis- 
ing purposes  is  against  public  policy  will 
not  enforce  it,  although  it  is  valid  by  the 
laws  of  the  state  where  the  company  was 
organized.  National  Car  Advertising  Co.  v. 
Louisville  &  N.  R.  Co.  24:  loio,  66  S.  E.  88, 
110  Va.  413. 

12.  A  provision  in  an  insurance  policy 
requiring  suit  to  be  brought  within  a  year 
after  death  of  insured,  which  is  valid  in 
both  the  state  where  the  insurer  resides 
and  that  where  the  insured  resides,  will  be 
enforced  by  the  courts  of  a  third  state  in 
which  the  insured  dies  and  where  suit  is 
brought,  although  it  is  contrary  to  the  pub- 
lic policy  of  that  state  and  void  there. 
Clarey  v.  Union  Central  L.  Ins.  Co.  33:  881, 
136  S.   VV.   1014,  143  Ky.   540. 

13.  The  courts  of  a  state  where  gam- 
bling transactions  are  illegal  will  not  en- 
force a  contract  growing  out  of  such  trans- 
action made  in  another  state,  even  though 
the  transaction  is  valid  there.  Burrus  v. 
Witcover,  39:  1005,  74  S.  E.  11,  158  N.  C. 
384. 

14.  Under  the  English  statutes  which  de- 
clare that  all  notes,  bills,  bonds,  judgments, 
mortgages,  or  other  securities  or  convey- 
ances whatsoever,  the  consideration  for 
which  shall  be  any  money  or  other  valuable 
thing  won  by  gaming  or  betting,  or  for  the 
reimbursing  or  repaying  any  money  know- 
ingly lent  or  advanced  for  such  gaming  or 
betting,  shall  be  deemed  to  have  been  given 
for  an  illegal  consideration,  an  action  can- 
not be  maintained  on  a  check  given  partly 
in  return  for  money  advanced  for  the  pur- 
pose of  playing  at  a  gambling  game,  and 
partly  in  discharge  of  gambling  debts, 
though  by  the  law  of  the  place  where  the 
check  was  given  and  where  the  indebtedness 
was  incurred  its  consideration  was  a  lawful 
Digest   1-52  L.R.A.(N.S.) 


one.  Moulis  v.  Owen,  4  B.  R.  C.  352,  [1907] 
1  K.  B.  746.  Also  Reported  in  76  L.  J.  K. 
B.  N.  S.  396,  96  L.  T.  N.  S.  590,  23  Times 
L.  R.  348. 

15.  The  English  statutes  which  declare 
that  all  notes,  bills,  bonds,  judgments,  mort- 
gages, or  other  securities  or  conveyances 
whatsoever,  any  part  of  the  consideration  of 
which  shall  be  for  any  money  or  other  valu- 
able thing  won  by  gaming  or  betting,  or 
for  the  reimbursing  or  repaying  any  money 
knowingly  lent  or  advances  for  such  gaming 
or  betting,  shall  be  deemed  to  have  been 
given  for  an  illegal  consideration,  render 
void  only  the  security,  and  not  the  con- 
sideration, and  so  do  not  preclude  the  recov- 
ery of  money  lent  in  a  foreign  country  for 
the  purpose  of  being  used  by  the  borrower 
for  gaming,  the  gaming  not  being  illegal 
bv  the  law  of  that  country.  Saxby  v.  Ful- 
ton, 4  B.  R.  C.  381,  [1909]  2  K.  B.  208. 
Also  Reported  in  78  L.  J.  K.  B.  N.  S. 
781,  101  L.  T.  N.  S.  179,  25  Times  L.  R. 
446,  53  SoL  Jo.  397. 

16.  It  is  not  contrary  to  public  policy 
for  the  English  courts  to  recognize  a  debt 
contracted  for  the  purpose  of  gaming  abroad 
in  a  place  where  such  gaming  is  legal.  Sax- 
by V.  Fulton,  4  B.  R.  C.  381,  [1909]  2  K.  B. 
208.  Also  Reported  in  78  L.  J.  K.  B.  N.  S. 
781,  101  L.  T.  N.  S.  179,  25  Times  L.  R. 
446,  53  Sol.  Jo.  397.  (Annotated) 

17.  The  English  courts  will  not  enforce 
a  foreign  contract,  though  valid  by  the  law 
of  the  country  in  which  it  was  made,  in 
cases  where  the  court  deems  the  contract  to 
be  in  contravention  of  some  essential  prin- 
ciple of  justice  or  morality.  Kaufman  v. 
Gerson,  4  B.  R.  C.  414,  [1904]  1  K.  B.  591. 
Also  Reported  in  73  L.  J.  K.  B.  N.  S.  320, 
52  Week.  Rep.  420,  90  L.  T.  N.  S.  608,  20 
Times  L,  R.  277. 

2,      Negotiable      instruments;      bonds; 
mortgages;  loans;  interest. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Bills  and  notes   generally. 

Notes  given  for  gambling  debt,   see  supra, 

14,  15. 
Notes  by  married  women,  see  infra,  59,  60. 
Draft  with  bill  of  lading  attached,  see  infra, 

112,  113. 
Running  of   limitations  on,   see  infra,   149, 

151,  152. 
Following  decisions  of  courts  of  other  states, 

see  Courts,  315. 

18.  The  mailing  in  one  state  of  a  note 
to  a  bank  in  another  state,  for  negotiation 
and  acceptance,  renders  the  bank's  place  of 
business  the  place  of  contract,  when  it  ac- 
cepts the  note  and  advances  tlie  money  upon 
it;  especially  if  it  is  dated  there.  Navajo 
County  Bank  v.  Dolson,  41:  787,  126  Pac. 
153,  163  Cal.  485. 

19.  Whether  or  not  a  note  is  negotiable 
is  determined  by  the  law  of  the  place 
where  it  is  made,  and  not  by  that  of  the 
forum.  Navajo  County  Bank  v.  Doison, 
41:  787,  126  Pac.  153,  163  Cal.  485. 


510 


CONFLICT    OF    LAWS,    I.    b,    2. 


20.  In  the  absence  of  stipulations  evin- 
cing a  different  intention,  the  negotiable 
quality  of  a  promissory  note  made  in  one 
state  and  payable  in  another  will  be  de- 
termined by  the  laws  of  the  latter.  Sykes  v. 
Citizens'  Nat.  Bank,  19:  665,  98  Pac.  206, 
78  Kan.  688.  (Annotated) 

21.  Where  a  mortgage  on  land  in  Okla- 
homa, given  to  secure  a  note  payable  in 
Kansas,  provided  that  both  note  and  mort- 
gage should  be  governed  and  construed  ac- 
cording to  the  laws  of  Oklahoma  territory, 
the  question  of  the  negotiability  of  the  note 
will  be  determined  by  the  same  rule  as  if 
it  had  been  both  executed  and  payable  in 
Oklahoma  territory.  Bell  v.  Riggs,  41:  iiii, 
127  Pac.  427,  34  Okla.  834. 

22.  The  law  of  the  place  where  com- 
mercial paper  is  payable  governs  the  days  of 
grace,  the  time  and  the  manner  of  making 
the  presentment,  the  demand,  and  the  pro- 
test and  of  giving  the  notice  of  dishonor. 
Guernsey  v.  Imperial  Bank,  40:  377,  188 
Fed.  300,  110  C.  C.  A.  278. 

23.  The  manner  of  giving  and  the  suffi- 
ciency of  a  notice  of  dishonor,  in  a  case 
where  commercial  paper  is  indorsed  in  one 
jurisdiction  and  is  payable  in  another,  is 
governed  by  the  law  of  the  place  where  it 
IS  payable.  Guernsey  v.  Imperial  Bank, 
40:  377,  188  Fed.  300,  110  C.  C.  A.  278. 

24.  An  instrument  in  the  form  of  an 
order  upon  parties  in  Austria  for  the  pay- 
ment of  money  to  the  order  of  designated 
persons,  drawn,  indorsed,  and  transferred 
in  New  York,  and  which  is  within  the  defi- 
nition of  a  foreign  bill  of  exchange  in  the 
New  York  negotiable  instrument  law,  is  to 
be  treated  as  such  so  far  as  concerns  the 
obligation  to  cause  protest  and  notice  of 
presentment  and  nonpayment  as  a  condition 
of  holding  the  drawer  and  indorser,  al- 
though, according  to  the  law  of  Austria, 
it  may  have  the  character  of  a  "commer- 
cial order,"  for  the  payment  of  money  of 
which  no  protest  need  be  made.  Amsinck 
V.  Rogers,  12:  875,  82  N.  E.  134,  189  N.  Y. 
252. 

25.  The  obligation  to  cause  protest  and 
notice  of  presentment  and  nonpayment  in 
order  to  fix  the  liability  of  the  drawers  of 
a  bill  of  exchange  upon  parties  in  Austria, 
drawn,  indorsed,  and  transferred  in  New 
York,  is  governed  by  the  law  of  New  York, 
rather  than  by  the  law  of  Austria.  Am- 
sinck V.  Rogers,  12:  875,  82  N.  E.  134,  189 
N.  Y.  252. 

26.  The  drawer  of  a  foreign  bill  of  ex- 
change does  not  contract  to  pay  the  money 
in  the  foreign  place  on  which  it  is  drawn, 
but  only  guarantees  its  acceptance  and  pay- 
ment in  that  place  by  the  drawee,  and 
agrees,  in  default  of  such  payment,  upon 
due  notice,  to  reimburse  the  holder  in  prin- 
cipal and  damages  at  the  place  where  he 
entered  into  the  contract.  His  contract 
is  regarded  as  made  at  the  place  where  the 
bill  is  drawn,  and,  as  to  its  form,  and  na- 
ture, and  obligation,  and  effect,  is  gov- 
erned by  the  law  of  that  place  in  regard  to 
the  pajiee  and  any  subsequent  holder.  Am- 
Digest  1-52  I..'r.A.(N.S.) 


sinck  V.  Rogers,  12:  875,  82  N.  E.  134,  18? 
N.  Y.  252. 
Validity. 
i  27.  The  validity  of  a  power  of  attorney 
to  confess  judgment  inserted  in  a  note  exe- 
cuted in  one  state  by  its  citizen,  but  pay- 
able in  another  state,  is  to  be  determined 
by  the  law  of  the  former,  and  if  by  its 
law  such  power  is  invalid  when  combined 
with  a  note,  a  judgment  entered  upon  it 
in  the  state  where  the  note  is  payable  is 
void,  and  will  not  be  enforced  by  the  courts 
of  the  state  where  the  note  was  made. 
Acme  Food  Co.  v,  Kirsch,  38:  814,  131  N. 
W.    1123,    166    Mich.    433.  (Annotated) 

28.  An  agreement  by  a  woman  that  in 
consideration  of  the  plaintiff's  forbearance 
to  prosecute  her  husband  for  a  misappropri- 
ation of  money  intrusted  to  him,  she  will 
within  a  certain  period  repay  the  amount 
misappropriated,  which  agreement  she  was 
induced  to  sign  by  threats  to  prosecute  her 
husband,  so  contravenes  the  essential  prin- 
ciples of  justice  and  morality  that  English 
courts  will  not  lend  their  aid  to  enforce  it, 
although  by  the  law  of  the  country  where 
the  parties  were  domiciled  and  where  the 
agreement  was  made  it  is  not  invalid  as  hav- 
ing been  obtained  by  duress  or  undue  influ- 
ence. Kaufman  v.  Gerson,  4  B.  R.  C.  414, 
[1904]  1  K.  B.  591.  Also  Reported  in  73  L. 
J.  K.  B.  N.  S.  320,  52  Week.  Rep.  420,  90  L. 
T.  N.  S.  608,  20  Times  L.  R.  277. 

(Annotated) 

29.  A  check  is  governed,  in  respect  to 
the  validity  of  its  consideration,  by  the  law 
of  the  place  where  it  is  payable,  rather  than 
by  the  law  of  the  place  where  it  was  given 
and  where  the  obligation  it  is  intended  to 
discharge  was  incurred.  Moulis  v.  Owen,  4 
B.  R.  C.  352,  [1907]  1  K.  B.  746.  Also  Re- 
ported in  76  L.  J.  K.  B.  N.  S.  396,  96  L.  T. 
N.  S.  596,  23  Times  L.  R.  348. 

(Annotated) 
Snretyship   on   note. 
Presumption    as    to   common    law   of   other 

state,  see  E\aDENCE,  78. 
See  also  infra,  60. 

30.  The  merits  of  a  defense  interposed  by 
a  surety  in  a  suit  against  him  in  one 
state  on  a  promissory  note  made  in  an- 
other, setting  up  a  discharge  because  of  the 
failure  of  the  payee  of  the  note  to  sue  the 
principal  debtor  after  verbal  notice  to  sue, 
.will  be  determined  by  the  laws  of  the  state 
where  the  contract  was  made.  Thomas  v. 
Clarkson,  6:  658,  54  S.  E.  77,  125  Ga.  72. 
Indorsement. 

31.  The  rule  of  international  law,  that 
the  validity  of  a  transfer  of  movable  chat- 
tels must  be  governed  by  the  law  of  the 
country  in  which  the  transfer  takes  place, 
applies  to  the  transfer  of  bills  of  exchange 
or  cheques  by  indorsement.  Embiricos  v 
Anglo-Austrian  Bank,  2  B.  R.  C.  294,  [1905] 
1  K.  B.  677.  Also  Reported  in  74  L.  J.  K.  B. 
N.  S.  326,  53  Week.  Rep.  300,  92  L.  T.  N.  S. 
305,  21  Times  L.  R.  268,  10  Com.  Cas.  99, 

(Annotated) 

32.  One  who  claims  title  to  the  proceeds 
of  a  cheque  through  an  indorsee  who  has 
taken  it  in  good  faith  upon  an  indorsement 


CONFLICT  OF  LAWS,  I.  b,  3. 


511 


which,  being  forged,  is  under  the  law  of  the 
forum  wholly  inoperative,  but  which,  under 
the  law  of  the  place  where  the  transfer  was 
made,  is  elTectual  to  pass  title  to  one  pur- 
chasing for  value  in  good  faith  and  without 
gross  negligence,  cannot  be  lield  liable  for 
conversion.  Embiricos  v.  Anglo-Austrian 
Bank,  2  B.  R.  C.  294,  [1905]  1  K.  B.  677. 
Also  Reported  in  74  L.  J.  K.  B.  N.  S.  326,  53 
Week.  Rep.  306,  92  L.  T.  N.  S.  305,  21  Times 
L.  R.  268,  10  Com.  Cas.  99. " 

33.  The  provisions  of  an  English  statute 
making  a  forged  indorsement  ineffectual  to 
pass  title  to  a  negotiable  instrument  is 
declaratory  of  English  law  only,  and  does 
not  control  the  general  rule  of  international 
law  that  the  validity  of  a  transfer  of  mov- 
able chattels  must  be  governed  by  the  law 
of  the  country  in  which  the  transfer  takes 
place.  Embiricos  v.  Anglo-Austrian  Bank*, 
2  B.  R.  C.  294,  [1905]  1  K.  B.  677.  Also 
Reported  in  74'  L.  J.  K.  B.  N.  S.  326,  53 
Week.  Rep.  306,  92  L.  T.  N.  S.  305,  21  Times 
L.  R.  268,  10  Com.  Cas.  99. 

34.  Semble  that  the  indorsement  of  a 
bill  of  exchange  in  a  foreign  country,  valid 
under  the  foreign  law  but  invalid  under  Eng- 
lish law,  would  be  effectual  to  give  the  in- 
dorsee a  good  title  to  the  bill  as  against  the 
drawer  or  acceptor.  Per  Vaughan  Williams, 
L.  J.,  in  Embiricos  v.  Anglo-Austrian  Bank, 
2  B.  R.  C.  294,  [1905]  1  K.  B.  677.  Also  Re- 
ported in  74  L.  J.  K.  B.  N.  S.  326,  53  Week. 
Rep.  306,  92  L.  T.  K  S.  305,  21  Times  L.  R. 
268,  10  Com.  Cas.  99. 

35.  Tlie  laws  of  the  place  where  the  in- 
dorsement of  a  promissory  note  is  signed 
or  is  delivered  so  that  it  becomes  a  contract 
govern  the  validity  and  extent  of  the  con- 
tract, and  therefore  the  necessity  of  some 
presentment,  demand,  protest,  and  notice  of 
dishonor.  Guernsey  v.  Imperial  Bank,  40: 
377,  188  Fed.  300,  110  C.  C.  A.  278. 
Kates  of  interest;  usury. 
Presumption  as  to  law  of  other  state,  see 

Evidence,  82. 
See  also  infra,  134. 

36.  In  an  action  upon  a  promissory  note 
made  in  another  state,  it  will  be  presumed, 
in  the  absence  of  evidence  to  the  contrary, 
that  the  right  to  interest  in  the  state  in 
which  the  contract  was  made  is  governed 
by  the  common  law,  under  which  the  tak- 
ing of  interest  was  lawful ;  and,  where  the 
parties  contracted  for  the  payment  of  inter- 
est, it  will  be  upheld  if  reasonable  in 
amount  and  not  violative  of  the  policy  of 
the  state  of  the  forum.  Thomas  v.  Clark- 
son,  6:  658,  54  S.  E.  77,  125  Ga.  72. 

37.  A  mortgage  of  land  to  secure  a  note 
executed  in  another  state  is  not  invalid  un- 
der a  statute  avoiding  all  conveyances 
whereby  shall  be  secured  illegal  interest, 
where  the  interest  reserved  is  legal  in  the 
state  where  the  note  is  executed  and  the 
parties  reside,  although  usurious  by  the  law 
of  the  state  where  the  land  is  located.  Man- 
hattan L.  Ins.  Co.  v.  Johnson,  9:  1142,  80  N. 
E.  658,  188  N.  Y.  108. 

38.  A  contract  valid  by  the  laws  of  the 
state  where  it  is  made  and  to  be  performed 
is  not  rendered  subject  to  the  usury  laws  of 
Digest  1-52  L,R.A.(N.S,) 


another  state  by  the  fact  that  it  is  secured 
by  mortgage  on  land  there  situated,  and  to 
whose  courts  it  is  necessary  to  resort  to 
enforce  the  mortgage.  Bank  v.  Doherty, 
4:  1 191,  84  Pac.  872,  42  Wash.  317. 

( Annotated ) 

39.  A  general  law  of  the  state  where  a 
corporation  is  organized,  depriving  it  of  the 
benefit  of  the  usury  lavs,  dees  not  follow 
it  into  another  state  where  it  is  authorized 
to  do  business,  so  as  to  prevent  it  from  tak- 
ing advantage  of  the  local  statute  against 
usury  in  an  action  to  foreclose  a  mortgage 
executed  and  to  be  performed  in  that  state 
and  secured  upon  lands  there  situated. 
Stack  V.  Detour  Lumber  &  C.  Co.  16:  616, 
114  N.  W.  876,  151  Mich.  21.        (Annotated) 

3.  Insurance  matters. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

Public  policy  against  enforcing  payment  of 
insurance,  see  supra,  10. 

40.  The  place  where  a  contract  of  in- 
surance between  parties  in  different  juris- 
dictions is  entered  into  is  the  place  where 
the  last  act  is  done  that  is  necessary  to 
the  validity  of  the  contract.  McElroy  v. 
Metropolitan  L.  Ins.  Co.  23:  968,  122  N.  W. 
27,  84  Neb.  866. 

41.  An  insurance  policy  issued  to  a  resi- 
dent of  one  state,  upon  an  application  there 
made,  by  a  company  located  in  another 
state,  is  a  contract  of  the  former,  where  the 
application  provides  that  the  contract  shall 
not  be  in  force  until  the  actual  payment  to 
and  acceptance  of  the  premium  by  an  au- 
thorized agent  of  the  insurer,  which  condi- 
tion is  met  by  payment  to  an  agent  located 
where  the  applicant  resides.  Davis  v.  New 
York  L.  Ins.  Co.  41:  250,  98  N.  E.  1043,  212 
Mass.  310. 

42.  A  policy  of  life  insurance,  though 
executed  at  the  company's  office  in  Wiscon- 
sin, is  a  Virginia  contract,  where  the  ap- 
plication was  made  by  a  resident  of  the 
latter  state  at  a  place  in  that  state,  and 
the  policy  was  delivered  to  him  there,  when 
he  gave  his  note  for  the  premium,  which 
was  payable  at  that  place,  and  subsequent- 
ly paid  there,  the  policy  providing  that  it 
should  not  take  effect  until  the  first  prem- 
ium should  be  actually  paid.  Northwestern 
Mut.  L.  Ins.  Co.  v.  McCue,  38:  57,  32  Sup. 
Ct.  Rep.  220,  223  U.  S.  234,  56  L.  ed.  419. 

43.  Handing  an  application  and  fee  to 
the  agent  of  an  insurance  company  in  one 
state,  to  be  forwarded  to  the  insurer  in  an- 
other state,  does  not  render  the  former  state 
the  place  of  contract,  although  the  policy  is 
returned  to  the  applicant  in  that  state  by 
mail,  where  the  by-laws  of  the  insurer  pro- 
vide that  the  association  shall  not  be  liable 
in  any  manner  until  the  directors  have  ac- 
cepted the  application  and  a  certificate  has 
been  issued,  since  the  contract  is  complete 
when  the  policy  is  placed  in  the  mail,  in  the 
absence  of  anything  requiring  personal  de- 
livery.     Tuttle    V.    Iowa    State    Traveling 


&J& 


CX)NFLICT  OF  LAWS,  I.  b,  4,  5. 


Men's  Asso.  7:  223,  104  N.  W.  1131,  132  Iowa, 
652. 

44.  The  contract  evidenced  by  a  mutual- 
benefit  certificate  issued  by  a  branch  of  the 
order  located  in  the  state  where  the  member 
resides,  countersigned  by  the  olHcers  of  such 
branch  and  delivered  at  the  place  of  his 
Tfsidenct?,  is  governed  by  the  law  of  that 
state,  although  the  association  is  organized 
under  the  laws  of  another  state.  Uolan  v. 
Supreme  Council  C.  M.  B.  A.  13:  424,  113 
N.  VV.  10,  —  Mich.  — . 

Assignment. 

45.  The  right  of  an  insured  to  assign  a 
policy  of  life  insurance  of  which  his  wife 
is  the  beneficiary  is  to  be  determined  by  the 
law  of  the  state  by  which  the  contract  of 
insurance  is  governed,  rather  than  by  that 
of  the  state  in  which  the  assignment  is 
.executed,  where  the  right  to  assign  such  a 
policy  is  in  the  latter  state  denied,  not  on 
grounds  of  public  policy,  but  on  the  ground 
that  the  husband  has  no  property  in  the 
policy, — at  least  where  the  insured  is  not 
domiciled  in  that  state.  Northwestern 
21ut.  L.  Ins.  Co.  v.  Adams,  52:  275,  144  N. 
W.  1108,  155  Wis.  335.  (Annotated) 
Notice  before  forfeiture. 

46.  An  insurance  contract  entered  into 
in  the  state  by  a  foreign  insurance  company, 
which  does  not  contain  a  provision  that  the 
laws  of  the  foreign  state  shall  govern,  is 
not  subject  to  a  provision  of  a  statute  of 
such  foreign  state  requiring  a  notice  to  be 
mailed  to  the  policy  holders  in  that  state 
as  a  condition  of  forfeiture  for  nonpay- 
ment of  premiums.  McElroy  v.  Metropoli- 
tan L.  Ins.  Co.  23:  968,  122  N.  W.  27,  84 
Neb.  866.  (Annotated) 
Rights   of  claimants  nnder  policy. 

47.  The  law  of  the  place  where  the  con- 
tract is  made  will  govern  tlie  question 
whether  or  not  breach  of  the  iron-safe  clause 
invalidates  an  insurance  policy  as  to  fix- 
tures as  well  as  goods  covered  by  it.  ^tna 
Ins.  Co.  V.  Mount,  15:  471,  44  So.  162,  45 
So.  835,  90  Miss.  642. 

4.  Carriers'   contracts. 

(See   also   same   heading   in  Digest  L.R.A. 
1-10.) 

See  also  supra,  11. 

48.  The  na,ture,  validity,  and  interpreta- 
tion of  that  portion  of  a  contract  for  trans- 
portation of  property  from  one  state  to 
another,  which  relates  to  the  safe  transpor- 
tation from  the  point  of  receipt  to  the  point 
of  destination,  are  to  be  determined  by  the 
law  of  the  former  state,  if  the  contract  was 
made  there,  unless  there  is  evidence  that  the 
parties  intended  that  a  different  rule  should 
applv.  Gilliland  v.  Southern  R.  Co.  27: 
1 106,  67  S.  E.  20,  85  S.  C.  27. 
Contract  made  on  Snnday. 

49.  That  the  carrying  of  an  animal  on 
Sunday  is  legal  in  the  state  where  the 
service  is  to  be  performed  does  not  validate 
a  contract  therefor  made  on  that  day  in 
another  state  whose  laws  forbid  the  making 
Digest   1-52  L.R.A.(N.S.) 


of  such  contracts  on  that  day.  Lovell  v. 
]{oston  &  M.  R.  Co.  34:  67,  78'  Atl.  621,  75 
N.  W.  508.  (Annotated) 

50.  A  carriage  contract  containing  a 
limitation  of  liability  clause,  which  is  void 
at  the  place  where  it  is  made  because  exe- 
cuted on  Sunday,  cannot  be  declared  valid 
and  enforced  because  a  portion  «f  tlie  serv- 
ice was  to  be  performed  in  another  state 
where  it  would  have  been  valid,  and  where 
the  injury  for  "which  the  carrier  is  sought 
to  be  held  liable  occurred.  Lovell  v.  Boston 
&  M.  R.  Co.  34:  67,  78  Atl.  621,  75  N.  H. 
568. 

Extraterritorial    effect    of    regulation 
of    public-service    commission. 

51.  A  rule  of  a  public-service  commis- 
sion, fixing  the  maximum  sum  for  which  a 
railroad  company  shall  be  liable  in  case  of 
loss  of  baggage,  does  not  apply  to  losses 
occurring  in  other  states.  Hasbrouck  v. 
New  York  C.  &  H.  R.  R.  Co.  35:  537,  95 
N.  E.   808,  202  N.  Y.  363. 

liimiting   liability. 
See  also  supra,  50. 

52.  The  courts  of  one  state  will  not  give 
effect  to  provisions  of  a  contract  for  car- 
riage terminating  within  its  jimits,  which 
limit  the  carrier's  liability  for  negligent  in- 
jury to  the  property,  contrary  to  the  pub- 
lic policy  of  the  state,  although  the  con- 
tract is  valid  according  to  the  laws  of  the 
state  where  it  was  made,  and  the  carriage 
begun  in  another  state.  Carstens  Packing 
Co.  V.  Southern  P.  Co.  27:  975,  108  Pac.  613, 
58  Wash.  239. 

53.  The  state  in  which  the  accident  oc- 
curs will  not  enforce  the  provision  of  a  car- 
rier's contract,  valid  -here  made,  exempting 
it  from  liability  therefor,  where  such  con- 
tract is  contrary  to  its  public  policy.  Lake 
Shore  &  M.  S.  R.  Co.  v.  Teeters,  5':  425,  77 
N.  E.  599,  166  Ind.  335.  (Annotated) 

54.  A  contract  by  which  a  railroad  com- 
pany attempts  to  relieve  itself  from  its 
common-law  liability  for  negligent  injuries 
to  express  messengers  will  not  be  enforced 
in  a  stata  where  the  accident  occurs,  where 
it  is  forbidden  by  its  Constitution,  although 
it  was  made  in  another  state, — especially  if 
it  was  also  forbidden  by  the  s'  .tute3  of  the 
latter.  Davis  v.  Chesapeake  &  0.  R.  Co. 
5:  458,  92  S.  W.  389,  122  Ky.  528. 

55.  A  contract  to  transport  goods  from 
one  state  and  deliver  them  in  another  is 
to  be  performed  in  the  latter,  so  as  to  be 
subject  to  its  laws  as  to  the  validity  of  a 
provision  limiting  the  carrier's  liability  for 
breach.  Southern  Exp.  Co.  v.  Gibbs,  18:  874, 
46  So.  465,  155  Ala.  303.  (Annotated) 

5.  As  to  telegrams. 

(See   also   same   heading   in  Digest  L.R.A. 
1-10.) 

56.  The  liability  of  a  telegraph  company 
in  tort  for  error  in  the  transmission  of  a 
message  is  governed  by  the  law  of  the  state 
where  the  message  originated.  M.  M.  Stone 
&  Co.  V.  Postal-Teleg.  Co.  29:  795,  76  Atl. 
762,  31  R.  I.  174.  (Annotated) 


CONFLICT  OF  LAWS,  I.  b,  6,  c. 


513 


57.  The  sending  of  a  telegram  from  a 
station  in  Montana  by  one  en  route  from 
Minnesota  to  Washington,  in  response  to 
a  telegram  from  a  business  associate  in 
Washington,  creates  a  Montana  contract, 
and  in  the  absence  of  proof  of  the  statutes 
of  that  state,  in  an  action  in  Minnesota 
against  tlie  telegraph  company  for  failure 
to  deliver  the  message,  the  question  must 
be  determined  under  the  common-law  rule. 
Kolliner  v.  Western  U.  Teleg.  Co.  52:  11 80, 
147  N.  W.  961,  126  Minn.  122. 
Limitation    of    liability. 

58.  The  courts  of  the  forum  will  not,  in 
an  action  to  recover  damages  for  nondeliv- 
ery of  a  telegram,  enforce  a  provision  of  a 
contract  for  transmission  of  the  message 
limiting  the  liability  of  the  company,  which 
is  void  under  the  public  policy  of  the  forum, 
although  it  is  valid  in  the  state  where  the 
contract  was  made  and  in  that  where  the 
breach  occurred,  so  that  no  action  could 
have  been  brought  for  the  breach  in  either 
state.  Fox  v.  Postal  Teleg.  Cable  Co.  28: 
490,  120  N.  W.  399,  138  Wis.  648. 

(Annotated) 

6.   Of  married  man  or  wom,an. 

•  a.  Of  married  man. 

(See  same  heading  in  Digest  L.R.A.  1-70.) 

b.  Of  married  tvom,an. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Liability  of  married  woman  on  indorse- 
ment of  note,  see  Husband  and  Wife, 
36. 

59.  A  note  signed  by  a  marled  woman 
as  accommodation  maker  for  her  husband, 
which  is  valid  in  the  place  where  made,  is 
enforceable  against  her  in  the  courts  of  an- 
other state,  although  if  made  in  the  latter 
state  it  would  have  been  void, — especially 
where  the  legislative  policy  of  the  forum 
negatives  the  idea  that  the  granting  to  a 
married  woman  of  full  rights  to  contract 
involves  anything  inherently  bad,  since  for- 
eign contracts,  to  be  unenforceable  in  the 
country  of  the  forum,  must  be  injurious  to 
the  public  welfare  in  the  judgment  of  the 
courts  thereof,  or  must  have  been  prohibited 
by  its  legislature  as  pernicious.  Interna- 
tional Harvester  Co.  v.  McAdam,  26:  774, 
124  N.  W.  1042,  142  Wis.  114.    (Annotated) 

60.  A  note  signed  by  a  married  woman 
as  accommodation  guarantor  or  surety  at 
her  domicil  in  New  Jersey,  but  dated  and 
payable  in  New  York,  where  the  place  of 
delivery  does  not  appear,  is,  in  the  absence 
of  facts  evincing  another  intention,  or  an 
intent  to  avoid  the  laws  of  New  Jersey,  a 
New  York  contract ;  and,  as  such  a  contract 
is  valid  under  the  laws  of  New  York,  it  is 
enforceable  in  New  Jersev.     Maver  v.  Roche 

(N.  J.  Err.  &  App.)  26:  763,  75'Atl.  235,  77 
N.  J.  L.  681.  (Annotated) 


7.    Of  infanta. 
See  also  supra,  7. 

61.  Courts  will  not  enforce  a  contract 
against  an  infant  residing  in  the  state,  con- 
trary to  its  laws,  where  the  promise  was 
made  and  the  contract  was  to  be  performed 
substantially  within  the  state,  although  it 
was  completed  by  acceptance  in  another 
state  where  infancy  might  not  be  a  defense. 
International  Text-Book  Co.  v.  Connelly,  42: 
1115,  99  N.  E.  722,  206  N.  Y.  188. 

62.  The  execution  by  infants  in  a  state 
which  has  removed  their  disability,  of  a 
deed  conveying  title  to  land  in  another 
state,  will  not,  under  the  rule  of  comity, 
render  the  deed  an  irrevocable  conveyance 
in  the  latter  state,  where  its  policy  is  to 
regard  such  deeds  as  revocable  upon  the  in- 
fant's attaining  full  age.  Beauchamp  v. 
Bertig,  23:  659,  119  S.  W.  75,  90  Ark.  351. 

63.  The  binding  effect  under  the  lex  loci 
contractus  of  covenants  for  title  in  an  in- 
fant's deed  to  land  situated  in  another  state 
will  not  be  given  effect  by  the  courts  of  the 
latter  state  in  contravention  to  the  public 
policy  of  that  state,  which  permits  infants 
to  disaffirm  such  covenants  upon  attaining 
majority.  Beauchamp  v.  Bertig,  23:  659, 
119  S.  W.  75,  90  Ark.  351. 

c.  Status;     marriage;     domestic     rela- 
tions; legitimation. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

As    to    contracts    of    married    woman,    see 

supra,  I.  b,  6,  b. 
Descent   of   property   of   married   man,   see 

infra,  120,  121. 
Inheritance  by  adopted  child,  see  infra,  122- 

125. 
Laches  in   invoking  principle  of  comity  to 

establish  rights    of    adopted    child,  see 

Limitation  of  Actions,  54. 
See  also  infra,  126. 

Felloiv    servants. 

64.  The  courts  of  a  state  in  which  a  sec- 
tion foreman  on  a  railroad  is  held  not  to  be 
a  fellow  servant  of  a  brakeman  will  not,  in 
determining  the  liability  of  a  railroad  com- 
pany for  injury  to  a  brakeman  through  the 
negligence  of  the  foreman  in  another  state, 
assume  that  the  courts  of  the  latter  would 
hold  that  they  were  fellow  servants,  merely 
because  its  decisions  had  tended  in  that  di- 
rection, but,  in  the  absence  of  direct  de- 
cision, will  apply  their  own  rule.  Root  v. 
Kansas  City  S.  R.  Co.  6:  212,  92  S.  W.  621, 
195  Mo.  348.  (Annotated) 
Marriage. 

Extraterritorial  effect  of  prohibition  in  de- 
cree of  divorce  against  remarriage  of 
guilty  party,  see  Judgment,  295. 

See  also  Marriage,  4. 

65.  The  validity  of  an  attempted  mar- 
riage between  citizens  of  one  of  the  United 
States  must  be  determined  by  its  laws, 
where    it   takes    place    in    Germany,   whose 


Digest  1-52  ]1R.A.(N.S.) 


33 


514 


CONFLICT  OF  LAWS  I.  c 


law  provides  that  the  contraction  of  a 
marriage,  even  if  only  one  of  the  parties 
is  a  German,'  is  determined,  in  respect  of 
each  of  the  parties,  by  the  laws  of  the 
country  of  which  he  or  she  is  subject; 
and  that  the  same  role  applies  to  an  alien 
who  contracts  a  marriage  within  the  Em- 
pire, although  the  statute  also  provides 
that  the  form  of  a  marriage  concluded 
within  the  Empire  is  determined  exclu- 
sively by  the  German  law,  since  the  latter 
provision  must  be  held  to  apply  to  the 
celebration  of  the  marriage  in  Germany  be- 
tween German  subjects.  Re  Lando,  30: 
940,  127  N.  W.  1125,  112  Minn.  257. 

66.  The  laws  of  Germany  in  force  at 
the  time  of  the  solemnization  in  that 
country  of  a  marriage  between  American 
citizens  sojourning  therein  will  govern  the 
courts  of  Minnesota  in  determining  the 
validity  of  the  marriage,  since  the  validity 
of  a  marriage  must  be  determined  by  the 
law  of  the  place  where  the  ceremony  is 
performed.  Re  Lando,  30:  940,  127  N.  W. 
1125,  112  Minn.  257. 

67.  The  courts  of  one  state  cannot,  at 
the  suit  of  one  of  the  parties,  annul  a  mar- 
riage which  was  valid  by  the  law  of  the 
state  where  it  was  contracted,  on  the 
groimd  that  it  is  void  under  the  laws  of 
their  state,  and  cohabitation  between  the 
parties  made  a  penal  offense,  where,  at  the 
time  the  marriage  was  contracted,  they 
were  not  citizens  of  the  state  where  the 
suit  is  brought,  so  that  the  marriage  was 
not  a  mere  evasion  of  its  laws.  Garcia 
V.  Garcia,  32:  424,  127  N.  W.  586,  25  S.  D. 
645. 

68.  The  statutes  of  Nebraska  which  were 
in  force  in  Oklahoma  on  Jun  25,  1890, 
will  govern  in  determining  whether  or  not  a 
common-law  marriage  existed  by  reason  of 
an  agreement  entered  into  on  that  day  be- 
tween parties  competent  to  contract,  that 
they  would  be  husband  and  wife  to  each 
other,  and  who  immediately  btgan  living 
together  and  cohabiting  with  each  other  as 
husband  and  wife,  and  holding  out  to 
the  world  that  that  relation  existed  be- 
tween them.  Reaves  v.  Reaves,  2:  353,  82 
Pac.  490,  15  Okla.  240. 

69.  The  rule  that  marriages  valid  where 
made  are  valid  everywhere  cannot  be  suc- 
cessfully invoked  in  support  of  a  marriage 
contracted  in  one  state  by  a  resident  and 
citizen  of  another,  but  prohibited  from  con- 
siderations of  public  policy  and  good  morals 
by  the  law  of  his  domicil;  nor  is  it  avail- 
able in  support  of  claims  predicated  upon 
the  validity  of  such  marriage.  Succession 
of  Gabisso,  11:  1082,  44  So.  438,  119  La.  704. 

(Annotated) 

70.  A  marriage  contract  between  parties 
who  resort  to  another  state,  where  it  is  val- 
id, to  evade  requirements  of  the  law  of  their 
domicil,  to  wliich  they  immediately  return, 
as  to  consent  of  the  guardian  who  has  been 
appointed  over  one  of  them,  is  valid  at  the 
domicil,  where  its  laws  make  a  marriage  con- 
tracted within  its  borders  without  such  con- 
sent merely  voidable.  Sturgis  v.  Sturgis, 
15:  1034,  93  Pac.  696,  51  Or.  10. 
Digest  1-^2  IJEt.A.(N.S.) 


71.  A  marriage  between  persons  who,  to 
avoid  the  law  of  their  domicil  prohibiting 
marriage  between  persons  of  certain  degrees 
of  consanguinity,  go  into  another  country 
where  the  marriage  is  valid,  have  the  cere- 
mony performed,  and  immediately  return  to 
their  former  domicil  to  reside,  will  not  be 
recognized  there.  Johnson  v.  Johnson,  26: 
179,  106  Pac.  500,  57  Wash.  89.   (Annotated) 

72.  A  marriage  between  parties  within 
a  class  prohibited  by  the  law  of  their  dom- 
icil, enacted  in  another  state  where  it  is 
valid,  is  valid  at  the  domicil,  although  re- 
sort was  made  to  the  foreign  state  for  the 
purpose  of  avoiding  the  domiciliary  law, 
where  there  is  no  legislative  enactment  that 
such  marriages  outside  of  the  domicil  shall 
be  invalid  therein,  and  there  is  a  statute 
providing  that  all  marriages  contracted 
without  the  state,  which  would  be  valid  by 
the  laws  of  the  country  in  which  they  were 
contracted,  shall  be  valid  in  all  courts  and 
places  in  the  state.  State  v.  Hand,  28: 
753,  126  N.  W.  1002,  87  Neb.  189. 

(Annotated) 

73.  A  marriage  by  one  of  the  parties  to 
a  divorce  proceeding  within  the  time  pro- 
hibited by  statute,  which  the  statute  ex- 
pressly declares  shall  be  void  whether  con- 
tracted within  or  without  the  state,  is  not 
void  if  contracted  in  a  foreign  country,  by 
whose  laws  it  is  valid,  after  the  party  has 
acquired  a  domicil  there;  but  it  is  invalid  if 
the  parties  went  to  the  foreign  country 
for  the  purpose  of  evading  the  local  law 
and  with  the  expectation  of  returning  to 
their  former  home.  State  t.  Fenn,  17:  800, 
92  Pac.  417,  47  Wash.  561.  (Annotated) 

74.  A  legislative  declaration  that  it  shall 
not  be  lawful  for  a  divorced  person  to  mar- 
ry again  within  a  year  from  the  date  of  the 
divorce  declares  a  public  policy  which  will 
prevent  the  recognition  by  the  courts  of  the 
state  of  a  marriage  between  its  citizens  who 
go  to  another  state  to  avoid  the  provisions 
of  the  statute,  and,  after  the  ceremony, 
return  to  their  former  domicil.  Lanham  v. 
Lanham,  17:  804,  117  N.  W.  787,  136  Wis. 
360. 

75.  A  statute  forbidding  remarriages 
within  a  year  of  either  party  to  a  divorce, 
and  making  an  attempted  marriage  void, 
applies  to  a  marriage  wherever  contracted. 
Wilson  v.  Cook,  43:  365,  100  N.  E.  222,  256 
111.  460.  (Annotated) 

76.  A  state  may  make  invalid  the  re- 
marriage of  one  of  its  citizens  within  a  spec- 
ified time  after  divorce,  even  in  another 
state  or  country,  and  refuse  to  recognize 
such  an  attempted  marriage  as  the  founda- 
tion of  any  rights  within  its  borders.  Wil- 
son V.  Cook,  43:  365,  100  N.  E.  222,  256  111. 
460. 

77.  If  a  divorce  rendered  falls  because  of 
lack  of  jurisdiction  over  the  plaintiff,  his 
subsequent  marriage  in  the  state  where  the 
decree  is  rendered  will  not  be  recognized  as 
valid  in  other  states.  State  v.  Westmore- 
land, 8:  842,  56  S.  E.  673,  76  S.  C.  145. 

78.  Although  marriages  between  whites 
and  negroes  are  prohibited  in  one  state, 
where  such  a  marriage  takes  place   in  an- 


CONFLICT  OF  LAWS,  I.  d,  1,  2. 


515 


other  state  where  the  same  is  valid,  between 
such  persons,  who  are  bona  fide  residents  of 
the  latter  state,  and  who  continue  to  re- 
side there  until  the  death  of  the  wife,  the 
husband  is  entitled  to  inherit,  under  the 
laws  of  descent  of  the  former  state,  real 
estate  there  situated.  Whittington  v.  Mc- 
Caskill,  44:  630,  61  So.  236,  65  Fla.  162. 
Separation   or   divorce;   annulment   of 

marriage. 
Presumption  as  to  divorce  law  of  other  state, 

see  Evidence,  80. 
Conclusiveness  and  effect  of  divorce  decree 

rendered  in  other  states,  see  Judgment, 

IV.  b,  2. 
See  also  sapra,  67. 

79.  The  divorce,  according  to  Indian  cus- 
tom, of  a  white  man  who  had  been  adopted 
by  an  Indian  tribe  and  married  an  Indian 
woman,  from  a  white  woman,  whom  he  mar- 
ried after  his  first  wife's  death,  will  be 
recognized  by  the  state  courts.  Cyr  v. 
Walker,  35:  795,  116  Pac.  931,  29  Okla.  281. 

( Annotated ) 

80.  A  statute  providing  that  a  wife's  in- 
choate right  of  dower  is  not  aflTected  by  a 
judgment  dissolving  a  marriage  applies  to 
a  dissolution  in  another  state  for  a  cause 
not  recognized  by  the  local  statutes.  Van 
Blaricum  v.  Larson,  41:  219,  98  N.  E.  488, 
205  N.  Y.  355.  (Annotated) 

81.  The  kind  and  degree  of  fraud  which 
will  permit  the  annulment  of  a  marriage 
will  be  determined  by  the  law  of  the  forum, 
although  the  proceeding  is  instituted  in  ac- 
cordance with  the  provisions  of  a  statute 
of  the  state  where  the  marriage  was  con- 
summated. Lyon  v.  Lyon,  13:  996,  82  N.  E. 
850,  230  111.   366. 

82.  A  statute  authorizing  an  action  to 
annul  a  marriage  where  one  of  the  parties 
had  not  attained  the  age  of  legal  consent 
applies  in  case  residents  ol  the  state  go  into 
a  sister  state,  and  have  the  ceremony  per- 
formed, and  immediately  return  to  their 
former  residence,  although  the  marriage 
may  have  been  valid  where  performed.  Cun- 
ningham V,  Cunningham,  43:  355,  99  N.  E. 
845,  206  N.  Y.  341.  (Annotated) 
liegitimation. 

83.  The  courts  of  New  York  are  not  re- 
quired, by  the  full  faith  and  credit  clause 
of  the  Federal  Constitution,  to  give  effect  to 
a  Michigan  statute  legitimatizing  children 
born  prior  to  the  marriage  of  their  parents, 
so  as  to  control  the  devolution  of  title  to 
lands  in  New  York  under  a  will, — espe- 
cially where  to  give  effect  to  such  statute 
would  disturb  interests  already  vested  when 
the  statute  was  enacted.  Olmsted  v.  Olm- 
sted, 25:  1292,  30  Sup.  Ct.  Hep.  292,  216  U. 
S.  386,  54  L.  ed.  530. 

d.   Corporate  matters. 

1.  In  general. 

(See   also   same   heading   in   Digest    L.R.A. 
1-70.) 

Property   rights   of   corporation,    see   infra, 

104. 
Digest  1-52  L.R.A.(N.S.) 


Matters  as  to  foreign  corporations  general- 
ly, see  CoRPOKATiONS,  VII. 

Jurisdiction  of  action  by  or  against  foreign 
corporation,  see  Courts,  I.  b,  3. 

Right  of  foreign  corporation  to  exercise 
power  of  eminent  domain,  see  Eminent 
Domain,  11-15. 

As  to  insurance  by  foreign  corporation,  see 
Insubance,  I.  b. 

84.  A  statute  of  one  state  denying  to  a 
corporation  the  right  to  commence  an  action 
in  case  it  has  failed  to  pay  a  certain  li- 
cense fee,  and  making  it  the  duty  of  the 
secretary  of  state  to  strike  from  the  records 
of  his  office  the  names  of  all  corporations 
which  have  neglected  for  a  certain  period  to 
pay  the  fee,  but  not  thereby  dissolving  the 
corporation,  is  such  a  penal  statute  as  will 
not  be  enforced  in  the  courts  of  another 
state,  so  as  to  prevent  a  corporation  which 
has  defaulted  in  the  payment  of  the  license 
fee  from  maintaining  a  suit  in  the  courts 
of  the  latter  state.  Gulledge  Brothers 
Lumber  Co.  v.  Wenatchee  Land  Co.  46:  697, 
142  N.  W.  305,  122  Minn.  266. 
Liability  of  promoters. 

85.  The  liability  of  promoters  to  the  cor- 
poration, for  transferring  property  at  a 
fictitious  value  to  it  in  exchange  for  stock, 
is  to  be  determined  by  the  law  of  the  place 
where  the  agreements  were  to  be  carried 
out,  the  deeds  delivered,  the  stock  issued, 
and  the  corporation  to  have  its  principal 
place  of  business,  although  the  vote  au- 
thorizing the  purchase  of  the  property  from 
the  promoters  in  exchange  for  stock  was 
passed  in  another  state.  Old  Dominion  Cop- 
per Min.  &  Smelting  Co.  v.  Bigelow,  40:314, 
89  N.  E.  193,  203  Mass.  159. 

2.  Liability  of  officers  and  stockholders. 

a.  Officers. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

86.  The  fact  that  a  statute  requiring  a 
corporation  to  file  an  annual  statement  of 
its  financial  condition,  and  making  its  of- 
ficers and  directors  individually  liable  for 
its  debts  in  case  of  default,  has  been,  by 
the  courts  of  the  state  enacting  it,  charac- 
terized as  penal  in  the  sense  that  a  right 
of  recovery  accrued  under  it  could  be  taken 
away  by  the  legislature  without  impairing 
the  obligation  of  contract,  that  actions  un- 
der it  are  governed  by  the  statute  of  limi- 
tations applicable  to  actions  for  a  penalty 
or  forfeiture  of  any  penal  statute,  and  that 
it  requires  a  strict  construction, — does  not 
prevent  its  enforcement  by  tiie  courts  of 
another  state.  Great  Western  Macliincry 
Co.  V.  Smith,  41:  379,  124  Pac.  414,  87  Kan. 
331. 

87.  A  statute  requiring  a  corporation  to 
file  an  annual  statement  showing  its  finan- 
cial condition,  and  making  its  officers  and 
directors  individually  liable  for  its  debts 
in  case  of  default,  not  being  entirely  penal 

but  in  part  compensatory,  may  be  enforced 


616 


CONFLICT  OF  LAWS,  I.  e.  1,  2. 


in  the  courts  of  another  state.  Great  West- 
ern Machinery  Co.  v.  Smith,  41:  379,  124 
Pac.  414,  87  Kan.  331.  (Annotated) 

b.  Stockholders. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

88.  The  liability  of  a  subscriber  to  stock 
of  a  corporation  located  in  another  state 
is  to  be  determined  by  its  laws  in  a  suit 
to  enforce  the  liability  in  the  courts  of  the 
state  of  the  subscriber's  doraicil,  in  so  far 
as  they  do  not  violate  the  law  or  settled 
policy  of  sucli  domicil.  Southworth  v.  Mor- 
gan, 51:  56,  98  N.  E.  490,  205  N.  Y.  293. 

89.  In  an  action  by  creditoj"^  to  recover 
of  stockholders  in  a  corporation  unpaid 
stock  subscriptions,  the  remedy  is  governed 
by  the  law  of  the  forum;  and  there  is  no 
distinction  between  domestic  and  foreign 
^corporations  in  respect  to  such  right  of  cred- 
itors to  recover.  Randall  Printing  Co.  v. 
Sanitas  Mineral  Water  Co.  43:  706,  139  N. 
W.  606,  120  Minn.  268. 

^      e.  Torts  and  crimes  generally. 

1.  Torts  generally ;  personal  injuries. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

See  also  supra,  32. 

90.  The  rule  that  the  courts  of  one  coun- 
try will  not  execute  the  penal  laws  of  an- 
other has  no  application  where  a  statute, 
though  imposing  a  penalty  for  failure  to 
comply  with  its  provisions,  has  also  the 
effect  to  give  the  individual  injured  by  its 
violation  a  right  of  action.  Strait  v.  Yazoo 
&  M.  V.  R.  Co.  49:  1068,  209  Fed.  157,  126 
C.  C.  A.  105. 

91.  If  one  injured  by  negligence  has  no 
cause  of  action  in  the  state  where  the  in- 
jury occurred,  he  has  none  elsewhere.  Root 
V.  Kansas  City  S.  R.  Co.  ^  212,  92  S.  W. 
621,  195  Mo.  348. 

92.  An  action  for  personal  injuries  to  a 
nonresident  in  the  state  of  his  residence 
may,  upon  his  death,  be  revived  in  favor  of 
an  administrator  appointed  for  that  pur- 
pose, where  the  local  statute  provides  that 
such  actions  shall  not  die  with  the  person, 
although  by  the  law  of  his  residence  it 
would  have  done  so.  Pyne  v.  Pittsburg,  C. 
C.  &  St.  L.  R.  Co.  5:  756,  91  S.  W.  742, 
122  Ky.  756.  (Annotated) 

93.  A  police  regulation  of  the  forum  re- 
quiring street  cars  to  carry  rear  lights 
after  dark  may  be  considered  by  the  court 
as  argumentative  of  the  carrier's  duty,  in 
an  action  for  injuries  caused  by  absence  of 
such  lights,  which  arose  in  another  juris- 
diction where  the  ordinance  was  not  in 
force.  Carter  v.  McDerrott,  10:  1103,  29 
App.  D.  C.   145. 

Digest  1-52  L.R.A.(N.S.) 


2.  Death. 

(See   also    same   heading    in   Digest   L.R.A. 

1-10.) 

94.  No  action  can  be  maintained  in  the 
courts  of  the  state  of  Ohio  upon  a  cause 
of  action  for  wrongful  death  occurring  in 
another  state,  except  where  the  person 
wrongfully  killed  was  a  citizen  of  the  state 
of  Ohio.  Baltimore  &  0.  R.  Co.  v.  Chambers, 
11:  I0I2,  76  N.  E.  91,  73  Ohio  St.  16. 

95.  An  action  lies  against  a  druggist 
who,  by  negligently  compounding  a  prescrip- 
tion, causes  the  death  of  a  patient  in  an- 
other state,  in  the  jurisdiction  where  his 
negligent  act  occurs,  where  the  statutes  in 
both  jurisdictions  allow  an  action  for  the 
benefit  of  next  of  kin  in  case  of  wrongful 
death.  Moore  v.  Pywell,  9:  1078,  29  App.  D. 
C.  312.  (Annotated) 

96.  The  courts  of  one  state  in  which  the 
penalization  of  negligence  resulting  in  death 
is  against  public  policy  will  not  enforce  a 
statute  of  another  state  giving  a  cause  of 
action  in  tort  for  negligently  killing  a  per- 
son the  damages  in  which  are  to  be  assessed 
according  to  the  degree  of  culpability,  which 
statute  IS  construed  in  the  state  of  its 
oiigin  as  penal  in  its  nature.  Cristilly  v. 
Warner,  51:  415,  88  Atl.  711,  87  Conn.  461. 

97.  An  action  for  death  by  wrongful  act 
brought  under  the  statutes  of  a  state  which 
provide  for  compensatory  and  also  puni- 
tive damages  may  be  maintained  in  the 
courts  of  another  state  the  statutes  of  which 
provide  for  compensatory  damages  merely, 
where  it  is  sought  to  recover  compensatory 
damages  only.  Rochester  v.  Wells,  Fargo, 
&  Co.  Express,  40:  1095,  123  Pac.  729,  87 
Kan.  164.  (Annotated) 

98.  The  statute  of  the  state  where  the 
accident  occurs,  and  not  of  that  ot  dece- 
dent's domicil,  governs  the  distribution  of  a 
fund  collected  witho  it  suit,  for  tfie  wrongful 
killing  of  a  person.  Re  Coe,  4:  814,  106 
N.  W.  743,  130  Iowa,  307. 

Action   by   personal   representative. 

99.  An  administratrix  appointed  by  the 
courts  of  one  state,  who  is  by  its  laws  given 
a  right  of  action  for  the  negligent  killing 
of  her  intestate  for  the  benefit  of  the  next 
of  kin,  may  maintain  an  action  in  the  courts 
of  another  state,  where  the  defendant  is 
found  and  where  a  similar  right  of  action 
is  recognized  which  may  be  brought  by  a 
foreign  executor  or  administrator,  although 
the  cause  of  action  arose  in  the  former  state, 
and  ancillary  ndministration  will  not  be 
allowed  by  the  latter.  Connor  v.  New  York, 
N.  H.  &  H.  R.  Co.  18:  1252,  68  Atl.  481, 
28  R.  I.  560.  (Annotated) 
What  law  governs. 

100.  In  an  action  for  negligently  causing 
death  in  another  state,  the  standard  of 
duty  resting  upon  defendant  in  that  state 
must  be  taken  into  consideration.  Strait 
V.  Yazoo  &  M.  V.  R.  Co.  49:  1068,  209  Fed, 
157,  126  C.  C.  A.  105. 

•..-a 


CONFLICT  OF  LAWS,  I.  e,  3— h. 


517 


3.  Crimes. 

(See   also   same   heading   in   Digest   L.R.A. 
1-70.) 

Territorial     limits     of     jurisdiction     over 

crimes,  see  Courts,  I.  b,  2. 
What    law    in    point   of    time   governs,    see 

Criminal  Law,  7,  254. 

101.  It  is  not  criminal  under  the  laws 
of  a  state  to  aid  or  abet  the  sale  of  con- 
fectionery colored  as  prohibited  by  the 
laws  of  such  state,  in  another  state,  though 

'^'sucli  act  would  violate  the  laws  of  the  first 
state    if    done    within    its    borders.      State 
V.  Gruber,  45:  591,  133  N.  W.  571,  116  Minn. 
221. 
Iiarceny. 

102.  In  a  prosecution  under  the  Kansas 
crimes  act,  §  285  (Gen.  Stat.  1901,  §  2286), 
providing  that  every  person  who  shall  steal 
or  obtain  by  robbery  the  property  of  an- 
other in  any  otlier  state,  and  shall  bring 
the  same  within  the  state,  may  be  convicted 
and  punishetl  for  larceny  in  the  same  man- 
ner as  if  the  property  had  been  feloniously 
stolen  or  taken  within  the  state,  the  ques- 
tion whethef  the  property  brought  into  the 
state  was  stolen  is  to  be  determined  by  the 
law  of  Kansas.  State  v.  White,  14:  556,  92 
Pac.  829,  76  Kan.  654.  (Annotated) 

/.  Insolvency,'  assignments  for 
creditors. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  validity  of  claims  against  bankrupt's 
estate,  see  Bankruptcy,  126. 

Validity  of  assignment. 

103.  Voluntary  assignment  for  the  bene- 
fit of  creditors,  executed  in  one  state,  accord- 
ing to  its  laws,  is  ineffectual  to  convey  real 
property  situated  in  another  state,  unless  the 
assignment  is  executed  and  recorded  in  the 
manner  required  by  the  laws  of  the  latter. 
Kirkendall  v.  Weatherley,  9:  515,  109  N.  W. 
757,  77   Neb.  421. 

g.   Rights  in  property  generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  transfers  of  property,  see  infra,  I. 
h. 

As  to  jurisdiction  over  land  in  other  state, 
see  Courts,  I.  b,  3,  b. 

Law  governing  passing  under  will  of  prop- 
erty in  another  state,  see  Taxes,  337. 

104.  The  title  to  tangible  personal  prop- 
erty belonging  to  a  corporation  domiciled  in 
a  state  other  than  that  in  which  the  prop- 
erty is  actually  stored,  and  not  merely  in 
transitu,  is  to  be  determined  by  the  lex  loci 
rei  sitcc,  as  between  residents  of  the  state 
in  which  the  corporation  is  domiciled,  and 
residents  of  other  states.  Schmidt  v.  Per- 
Digest  1-52  I..R.A.(N.S.) 


kins    (N.  J.  Err.  &  App.)    ii:  1007,  67  Atl. 
77,  74  N.  J.  L.  785. 

105.  The  question.  What  title  passes  by  a 
patent  to  a  homestead  settler  on  public 
land?  must  be  solved  by  the  law  of  the 
United  States.  Cunningham  v.  Krutz,  7: 
967,  83  Pac.  109,  41  Wash.  190. 

Doveer. 

Effect  of  divorce,  see  supra,  80. 

106.  The  laws  of  the  state  where  the  land 
of  a  bankrupt  is  situated  will  govern  the 
right  of  his  wife  to  dower,  notwithstanding 
the  proviso  in  §  8  of  the  bankruptcy  act 
that,  in  case  of  the  death  of  the  bankrupt, 
the  widow  shall  be  entitled  to  all  rights  of 
dower  fixed  by  the  law  of  the  state  of  the 
bankrupt's  residence.  Thomas  v.  Woods, 
26:  1180,  173  Fed.  585,  97  C.  C.  A.  535. 

107.  The  constitutional  requirement  that 
bankruptcy  statutes  shall  have  a  uniform 
operation  throughout  the  United  States  does 
not  prevent  the  question  of  the  right  to 
dower  in  the  property  of  the  bankrupt  be- 
ing settled  by  the  statutes  of  the  states 
where  the  property  is  situated.  Thomas  v. 
Woods,  26:  1 180,  173  Fed.  585,  97  C.  C.  A. 
535. 

Rights   in  literary   property. 

108.  The  common-law  rights  in  this 
country  of  an  English  author  of  an  un- 
published dramatic  piece  are  not  affected 
by  the  fact  that  there  has  been  a  perform- 
ance of  the  piece  in  England,  which  the 
English  statute  declares  to  be  a  publica- 
tion sufficient  to  destroy  the  common-law 
rights  of  the  author  there.  Frohman  v.  . 
Ferris,  43:  639,  87  N.  E.  327,  238  111.  430. 
Community  property. 

See  also  infra,  137. 

109.  A  statute  making  property  acquired 
after  marriage  community  property  does  • 
not  apply  to  property  so  acquired  by  a 
nonresident  at  his  domicil  in  another  state, 
and  invested  by  him  in  real  estate  within 
the  state  where  the  statute  exists.  Brook- 
man  V.  Durkee,  12:  921,  90  Pac.  914,  46 
Wash.    578, 

110.  The  inheritance  tax  law  of  a  state 
applies  to  property  acquired  there  by  one 
who  died  there,  although  he  was  married  in 
a  foreign  country  by  whose  law  his  wife 
was  entitled  to  a  community  interest  in  it. 
Re  Maj.ot,  29:  780,  92  N.  E.  402,  199  N.  Y. 
29.  (Annotated) 

h.  Transfers  of  property  generally. 

(See   also    same   heading   in   Digest   L.R.A. 
1-10.) 

Transfer  of  notes  bv  indorsement,  see  supra, 

31-35. 
Right  to  tax  transfers  of  property  outside 

of  state,  see  Taxes,  V. 
See  also  supra,  3,  5. 

111.  The  obligation  of  covenants  for  title 
in  a  deed  is  governed  by  the  law  of  the 
place  where  the  land  is  situated,  and  not  by 
the  ihx  loci  contractus.  Beauchamp  v.  Ber- 
tig,  23:  659,  119  S.  W.  75,  90  Ark.  351. 


518 


C50NFLIOT  OF  LAWS,  I.  i,  j. 


Sale   of  personal  property. 

Conditional  sales,  see  infra,  117. 

Regulating  sale  of  liquor  for  resale  in  other 
state  as  interference  with  commerce, 
see  Commerce,  112-128,  131-137. 

Where  sale  of  liquor  deemed  to  be  made, 
sec  Intoxicating  Liquors,  III.  g. 

112.  Taking  a  bill  of  lading  in  the  name 
of  the  seller,  and  attaching  thereto  a  draft 
for  the  purchase  price,  to  be  forwarded  for 
collection  before  surrender  of  the  bill  of 
lading,  do  not  make  the  destination  the 
place  of  sale  if  the  intention  of  the  parties 
is  otherwi.'se.  Hamilton  v.  Joseph  Schlitz 
Brewing  Co.  a:  1078,  105  N.  W.  438,  129 
Iowa,  172. 

113.  Upon  the  question  where  a  sale  of 
property  shipped  from  one  state  to  anotlier 
under  a  bill  of  lading  to  the  seller's  order 
attached  to  a  draft  for  the  price  was  to 
take  place,  the  facts  may  be  considered, 
that  the  sale  would  be  illegal  if  made  in 
the  state  of  destination,  and  that  the  re- 
lation between  the  parties  originated  in  an 
agreement  by  which  the  purchaser  was 
placed  in  possession  of  the  seller's  real  es- 
tate upon  his  undertaking  to  purchase  his 
supplies  from  the  seller,  all  sales  to  take 
place  at  the  seller's  domicil.  Hamilton  v. 
Joseph  Schlitz  Brewing  Co.  2:  1078,  105  N. 
W.  438,   129  Iowa,   172. 

114.  A  sale  of  tangible  personal  property 
actually  stored  in  New  Jersey  by  an  insol- 
vent foreign  corporation,  to  four  creditors, 
one  of  whom  is  a  director,  in  satisfaction 
of  an  antecedent  debt,  is  invalid  as  against 
attaching  creditors,  resident  in  states  other 
than  that  in  which  the  corporation  is  dom- 
iciled, where  all  the  vendees  have  knowledge 
of  the  facts.  Schmidt  v.  Perkins  (N.J.  Err. 
&  App.)  11:  1007,  67  Atl.  77,  74  N.  J.  L. 
785.  (Annotated) 

115.  A  sale  of  goods  to  be  delivered  to 
transportation  companies  at  the  place  of 
manufacture  in  another  state  id  effected 
there  and  is  not  affected  by  a  statute  of 
the  state  where  the  order  was  signed,  re- 
lating" to  the  sale  of  goods  bearing  a  fraud- 
ulent mark  of  quality.  Loveland  v.  Din- 
nan,  17:  1119,  70  Atl.  634,  81  Conn.  111. 

i.  Chattel  mortgages;  conditional  sales; 
leases  of  personalty.    , 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Chattel   mortgages. 

116.  Where  a  mortgagor  removed  personal 
property  which  had  been  encumbered  by  a 
mortgage  duly  recorded  and  valid  under  the 
laws  of  one  state,  into  another  state,  with- 
out the  consent  of  the  mortgagee,  and  there 
sold  the  same  to  a  bona  fide  purchaser,  such 
purchaser  takes  subject  to  the  mortgage. 
Farmers'  &  M.  State  Bank  v.  Sutherlin,  46: 
95,  141  N.  W.  827,  93  Neb,  707. 
Conditional    sales. 

117.  To  protect  the  rights  of  a  condi- 
tional vendor  of  personal  property  as 
against  purchasers,  mortgagees,  and  credi- 
tors, the  provisions  of  the  statute  of  the 
Digest   1-52  LuR.A.(N.S.) 


state  where  the  property  is  located  must 
be  complied  with,  although  the  contract  is 
made  in  another  state.  Boyer  v.  M.  D. 
Knowlton  Co.  38:  224,  97  N.  E.  137,  85  Ohio 
St.  104. 
Lease  of  personalty. 

118.  One  renting  a  machine  to  another 
for  use  in  the  state,  whose  laws  did  not  re- 
quire the  contract  to  be  recorded,  does  not, 
where  he  reclaims  the  property  as  soon  as 
he  learns  the  facts,  lose  his  title  in  favor 
of  a  bona  fide  purchaser  in  another  state, 
to  which  tlie  le.ssee  removes  the  property 
without  authority,  although  the  laws  of 
such  state  require  the  recording  of  such 
contracts  to  give  them  validity  against 
bona  fide  purchasers.  Adams  v.  Fellers, 
35:  385,  70  S.  E.  722,  88  S.  C.  212. 

(Annotated) 

].  Descent  and  distribution;  wills. 

(See   also   same   heading   in   Digest   L.R.A. 
1-70.) 


Descent  and  distribntion. 

Decision  that  foreign  adoption  gives  child 
no  rights  of  inheritance  "within  state 
as  rule  of  property,   see  Courts,   309. 

Burden  of  proving  that  domicil  has  been 
acquired  in  foreign  country,  see  Evi- 
dence, 128. 

Laches  in  proceeding  to  establish  rights  of 
adopted  child,  see  Limitation  of  Ac- 
tions, 54. 

See  also  supra,  83. 

119.  A  domicil  of  testacy  or  intestacy 
may  be  established  by  a  citizen  of  one  of 
the  United  States  in  that  portion  of  China 
in  which,  by  treaty,  he  is  permitted  to  en- 
joy the  laws  of  the  United  States,  so  that 
in  case  of  his  death  his  estate  is  subject 
to  the  jurisdiction  of  the  consular  court 
tliere  located,  and  not  to  the  courts  of  the 
state  of  his  former  domicil.  Mather  v. 
Cunningham,  29:  761,  74  Atl.  809,  105  Me. 
326. 

120.  Land  acquired  by  a  married  man  un- 
der the  homestead  laws  of  the  United  States 
becomes  subject  to  the  community  laws  of 
the  state  where  it  is  located,  and,  upon  the 
death  of  the  wife,  the  descent  of  her  inter- 
est will  be  governed  by  its  laws.  Krieg  v. 
Lewis,  26:  1117,  105  Pac.  483,  56  Wash.  196. 

(Annotated) 

121.  Where  a  man,  after  abandoning  his 
wife,  dies  domiciled  in  another  state  leaving 
credits  in  the  state  of  her  domicil,  they  may 
be  applied  by  its  courts  to  her  statutory 
year's  support  according  to  its  laws,  and  the 
fictions  that  her  domicil  and  the  situs  of  his 
assets  are  in  the  state  of  his  domicil  will 
not  apply.  Jones  v.  Layne,  11:  361,  57  S.  E. 
372,  144  N.  C.  600.  (Annotated) 

122.  The  adoption  of  a  child  under  the 
statutes  of  one  state  confers  upon  him  no 
rights  of  inheritance  in  lands  in  another 
state.  Brown  v.  Finley,  21:  679,  47  So.  577, 
157  Ala.  424.  (Annotated) 

123.  The  laws  of  the  domicil  of  an  adop- 
tive parent  and  child  fix  their  relation  and 


CONFLICT  OF  LAWS,  II. 


519 


status  one  to  the  other,  which  will  be  recog- 
nized in  other  jurisdictions;  so  that,  in 
case,  by  the  law  of  the  domicil,  the  adopted 
child  will  inherit  through  the  adoptive  par- 
ent from  the  latter's  ancestors,  that  rule 
will  be  recognized  in  the  jurisdiction  where 
the  estate  is  to  be  distributed,  unless  it  is 
inconsistent  with  its  own  laws  and  policy. 
Shick  V.  Howe,  14:  980,  114  N.  W.  916,  137 
Iowa,  249. 

124.  A  child  adopted  in  one  state,  where 
both  it  and  its  adoptive  parent  are  domi- 
ciled, has,  under  the  law  of  comity,  the 
right  to  inherit  real  estate  in  another  state 
having  substantially  similar  adoption  laws, 
where  its  laws  permit  adopted  children  to 
inherit.  Finley  v.  Brown,  25:  1285,  123  S. 
W.   359,    122   Tenn.   316. 

125.  That  a  child  adopted  under  the  law 
of  one  state,  at  the  time  he  laid  claim  to 
inherit  property  in  another  from  his  adop- 
tive father,  was  domiciled  in  a  third,  will 
not  prevent  his  receiving  the  benefit  of  the 
comity  between  the  state  of  the  adoption 
and  that  where  the  property  is  situated. 
Finley  v.  Brown,  25:  1285,  123  S.  W.  359, 
122   Tenn.   316. 

Wills. 

See  also  supra,  83. 

126.  A  testamentary  gift  to  the  "next  of 
kin"  of  a  person  domiciled  in  another  juris- 
diction must  be  construed  according  to  the 
law  of  testator's  domicil  and  not  that  of 
the  domicil  of  the  person  named;  although 
the  status  of  any  person  by  which  his 
membership  in  the  class  is  determined  will 
be  governed  bv  the  law  of  his  domicil.  Re 
Fergusson,  2  B.  R.  C.  552,  [1902]  1  Ch.  483. 
Also  Reported  in  71  L.  J.  Ch.  N.  S.  360, 
50  Week.  Rep.  312.  (Annotated) 

127.  An  unattested  holographic  will,  exe- 
cuted in  a  foreign  country  according  to  its 
laws,  by  a  citizen  of  one  of  the  United 
States  domiciled  there,  will  pass  real  proper- 
ty subsequently  acquired  in  that  state, 
■where  the  statute  provides  that  every  will 
made  out  of  the  state  shall  be  held  valid  if 
made  according  to  the  forms  required  by  the 
laws  of  the  place  where  the  same  is  made, 
or  where  such  person  is  residing  at  the  time 
that  it  is  made.  Lindsay  v.  Wilson,  2:  408, 
63  Atl.  566,   103  Md.,252.  (Annotated) 

128.  The  validity  of  a  bequest  to  a  trus- 
tee resident  in  another  state,  to  be  there 
expended  in  the  purchase  of  land  for  char- 
itable purposes,  will  be  determined  by  the 
laws  of  the  latter  state.  Mount  v.  Tuttle, 
a:  428,  76  N.  E.  873,   183  N.  Y.  358. 

(Annotated) 

129.  Tlie  courts  of  the  state  where  the 
property  is  situated,  in  construing  a  will 
made  at  testator's  domicil,  in  another  state, 
will  adopt  a  settled  judicial  meaning  which 
the  courts  of  the  state  of  domicil  have  given 
to  technical  words  therein  so  that  such 
meaning  has  become  a  rule  of  property  in 
that  state,  but  otherwise  the  testator's  in- 
tention as  ascertained  by  the  court  giving 
construction  to  the  will,  will  govern.  Ball 
T.  Phelan,  23:  895,  49  So.  956,  94  Miss.  293. 

130.  A  devise  of  real  property  in  Illinois 
imder   the   will   of  a  testator  domiciled   in 

Digest  1-52  KR.A.CN.S.) 


New  York  is  governed,  with  respect  to  the 
rights  of  a  child  born  after  the  execution  of 
the  will,  for  whom  no  provision  is  made,  by 
the  Illinois  statute,  which  provides  for  the 
abatement  of  devises  and  legacies  to  raise 
a  portion  for  such  child  equal  to  that  which 
he  would  have  been  entitled  to  receive  out 
of  the  testator's  estate  if  the  latter  had  died 
intestate,  unless  it  shall  appear  by  the  will 
that  it  was  the  intention  of  the  testator 
to  disinherit  such  child,  rather  than  by  the 
New  York  statute,  which  makes  a  similar 
provision  with  respect  to  such  a  child,  but 
contains  no  qualification  with  reference  to 
the  intention  manifested  by  the  will.  Peet 
V.  Peet,  13:  780,  82  N.  E.  376,  229  111.  341. 

131.  The  meaning  of  the  term  "heirs  at 
law"  in  an  agreement  compromising  a  will 
contest,  which  is  approved  by  court,  is  to  be 
determined  by  the  laws  of  the  state  where 
the  compromise  was  made,  although  the  per- 
son whose  heirs  are  referred  to  dies  a  resi- 
dent of  another  state,  where  the  will  was 
that  of  a  testator  domiciled  in  the  former 
state,  and,  at  the  time  of  the  compromise, 
all  parties  in  interest  were  also  domiciled 
there.  Brandeis  v.  Atkins,  26:  230,  90  N. 
E.  861,  204  Mass.  471. 

II.  Remedies. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

132.  The  remedies  of  the  purchaser  are 
governed  by  the  law  of  his  residence,  and 
not  by  that  of  the  broker,  where,  wishing  to 
purchase  stock  on  margin,  he  approaches 
the  resident  manager  of  a  foreign  broker 
and  authorizes  the  purchase  of  the  stock, 
upon  which  the  manager  wires  the  broker  to 
make  the  purchase,  and  is  notified  by  him 
that  the  purchase  has  been  made,  where- 
upon he  notifies  the  customer  of  that  fact 
and  receives  payment  of  the  margin.  Lam- 
son  Bros.  &  Co.  v.  Bane,  46:  650,  206  Fed. 
253,  124  C.  C.  A.  253.  (Annotated) 
Joint  liability  for  family  expenses. 

133.  A  court  of  one  state  will  not  enforce 
a  statute  of  another  state  making  a  wife 
liable  jointly  with  her  husband  for  family 
expenses,  in  case  of  purchases  made  by  a 
citizen  of  the  former  state  while  he  and  his 
wife  were  temporarily  in  the  latter.  Man- 
dell  Brothers  v.  Fogg,  17:  426,  66  N.  E.  198, 
182  Mass.  582.  (Annotated) 
Interest  on  judgment. 

134.  The  interest  to  be  allowed  by  the 
admiralty  court  for  a  tort  arising  within 
the  borders  of  a  state  is  to  be  computed 
for  the  entire  time  allowed,  whether  before 
or  after  the  final  decision,  at  the  rate  fixed 
by  the  state  statute  for  allowance  on  judg- 
ments. Cambria  Steamship  Co.  v.  Pitts- 
burg Steamship  Co.  51:  966,  212  Fed.  074, 
129  C.  C.  A.  210.  (Annotated) 
Attachment    and    garnishment. 

Situs  of  debt  for  purpose  of  garnishment, 
see  Garnishment,  I.  d. 

Injunction  to  restrain  garnishment  of 
money  due  nonresident,  see  Injunc- 
tion, 290,   291. 


520 


CONFLICT  OF  LAWS,  II. 


135.  A  court  will  not  assist  a  nonresident 
alien  suing  a  nonresident  alien  to  redress  a 
wrong  committed  without  the  state,  to  im- 
pound defendant's  assets  within  the  state 
by  garnishment  to  the  prejudice  of  his  resi- 
dent creditor,  who  has  obtained  a  judgment 
and  a  provisional  lien  against  the  assets,  al- 
though the  claim  of  tlie  alien  first  accrued 
and  his  action  was  first  brought, — especially 
where  the  foreign  creditor  is  acting  merely 
as  agent  for  a  foreign  trustee  in  bankruptcy 
who  would  have  no  standing  in  court.  Dis- 
conto  Gesellschaft  v.  Terlinden,  15:  1045,  106 
N.  W.  821,  127  Wis.  651. 

Statute  of  frauds.         ,     ^ 

136.  An  action  brought  on  a  local  parol 
contract  to  let  land  lying  in  another  state 
is  governed  by  the  local  statute  of  frauds. 
Boone  v.  Coe,  51:907,  154  S.  W.  900,  153 
Ky.  233.  (Annotated) 

137.  An  antenuptial  agreement  to  hold 
acquired  property  in  common  will  not  be 
presumed  from  the  fact  that  a  marriage 
toolc  place  in  a  country  where  the  com- 
munity law  prevails,  so  as  to  be  enforced 
in  a  state  where  no  such  agreement  is 
valid  unles  in  writing.  Re  Majot,  29:  780, 
02  N.  E.  402,  199  N.  Y.  29. 

Statute  of  limitations. 

See  also  supra,  12;  Judgment,  285. 

138.  The  statute  of  limitations  of  the 
state  of  the  forum  will  be  applied  where  it 
is  attempted  to  enforce  by  statute  a  con- 
tract made  and  intended  to  be  performed 
in  another  state.  Thomas  v.  Clarkson, 
6:  65S,  54  S.  E.  77,  125  Ga.  72.      (Annotated) 

139.  The  statutes  of  limitation  of  the 
state  in  which  a  contract  was  made  and  in- 
tended to  be  performed  are  irrelevant  and 
inadmissible  in  evidence  in  a  suit  brought 
on  the  contract  in  another  state,  since  the 
law  of  the  forum  governs  in  that  regard. 
Thomas  v.  Clarkson,  6:  658,  54  S.  E.  77,  125 
Ga.  72. 

140.  An  action  to  recover  upon  a  policy 
of  fire  insurance,  brought  in  Ohio  upon  a 
cause  arising  in  another  state,  although 
transitory,  is,  by  virtue  of  Ohio  Rev.  Stat. 
1905,  §  4990,  limited  to  the  time  fixed  by 
the  statute  of  the  foreign  state.  Hunter  v. 
Niagara  F.  Ins.  Co.  3:  1187,  76  N.  E.  563, 
73  Oliio  St.  110. 

141.  A  cause  of  action  upon  a  contract 
made  in  one  state  which  has  been  barred  by 
the  statutes  of  another  state  while  the  de- 
fendant resided  there,  but  is  not  barred  by 
the  laws  of  the  state  in  which  the  contract 
was  made,  may  be  enforced  in  a  territory 
tinder  a  statute  providing  that  where  the 
cause  of  action  has  arisen  in  another  state 
between  nonresidents  of  the  territory,  and, 
by  the  laws  of  the  state  where  the  cause  of 
action  arose,  an  action  cannot  be  main- 
tained, by  reason  of  lapse  of  time,  no  action 
can  he  maintained  thereon  in  the  territory. 
Doughtv  V.  Funk,  4:  1029,  84  Pac.  484,  15 
Okla.  643.  (Annotated) 

142.  A  Code  provision  that  no  action  shall  ' 
be  maintained  upon  a  contract  made  and 
to  be  performed  in  another  state  or  coun- 
try by  a  person  who  then  resided  therein, 
after  the  right  of  action  thereon  is  barred 
Digest  1-52  Ii.R.A.(N.S.) 


by  the  laws  of  such  state  or  country,  does 
not  authorize  an  action  upon  a  contract 
made  and  to  be  performed  in  another  state 
by  a  person  who  then  resided  therein,  after 
the  action  is  barred  by  the  statute  of  the 
state  of  the  forum,  although  rt  is  not  sa 
barred  by  the  statute  of  the  state  in  which 
the  contract  was  made  and  to  be  performed. 
Brown  v.  Hathaway,  51:  95,  80  S.  E.  959,. 
73  W.  Va.  605.  (Annotated) 

143.  The  phrase,  "has  arisen  in  another 
state,"  used  in  Idaho  Rev.  Stat.  1887,  §  4079,. 
providing  that  "when  a  cause  of  action  has 
arisen  in  another  state,  .  .  .  and,  by 
the  laws  thereof,  an  action  cannot  there 
be  maintained  against  a  person  by  reason  of 
the  lapse  of  time,  an  action  thereon  shall 
not  be  maintained  against  him"  in  the  state 
of  Idaho,  refers  to  and  means  the  state  in 
which  the  foreign  contract  is  to  be  paid  or 
discharged,  and  has  no  application  to  an 
intermediate  state  through  which  the  debtor 
may  subsequently  travel,  or  in  which  he 
may  reside  for  a  sufficient  length  of  time  to 
bar  the  action  under  the  statute  of  limita- 
tions of  such  state.  West  v.  Theis,  17:472, 
96  Pac.  932,  15  Idaho,  167. 

144.  "A  cause  of  action  arises"  in  an- 
other state,  within  the  meaning  of  Idaho 
Rev.  Stat.  1887,  §  4079,  forbidding  the  main- 
tenance of  suits  on  causes  of  action  barred 
by  the  statutes  of  limitations  of  the  state 
in  which  they  arise,  at  t.ij  time  and  place 
in  the  state  when  and  where  the  debt  is  to 
be  paid  or  the  contract  performed;  and  the 
cause  of  action  thus  arising  continues  and 
follows  the  debtor  until  such  time  as  it  is 
barred  by  the  statute  of  limitations  of  the 
state  in  which  it  arose,  or  until  the  debtor 
has  lived  in  the  state  of  Idaho  a  sufficient 
length  of  time  to  bar  it  by  the  statute  of 
limitations  of  that  state.  West  v.  Theis, 
17:  472,  96  Pac.  932,  15  Idaho,  167. 

145.  One  who  contracts  a  debt  and  agrees 
to  pay  it,  in  a  state  from  which  he  subse- 
quently goes  to  another,  where  he  resides  a 
sufficient  length  of  time  to  bar  a  right  of 
action  thereon  under  the  statutes  of  the  lat- 
ter state,  will  not  be  permitted  to  plead  the 
bar  of  the  statute  in  a  third  state  to  which 
he  removes,  where  the  statute  of  the  state 
in  which  the  contract  was  made  has  not  yet 
run  against  the  obligation.  West  v.  Theis, 
17:  472,  96  Pac.  932,  15  Idaho,  167. 

146.  In  order  to  determine  the  application 
of  the  statute  of  limitations  of  one  state  to 
a  contract  entered  into  in  another  state,  it 
is  necessary  to  examine  the  contract  and 
the  laws  of  such  other  state  for  the  purpose 
of  determining  the  date  from  which  the 
statute  runs.  Sterrett  v.  Sweeney,  20:  963, 
98  Pac.  418,  15  Idaho,  416. 

147.  Where  a  resident  of  Idaho  goes  into 
the  state  of  Washington,  and  makes  a  par- 
tial payment  upon  a  Washington  contract, 
after  its  maturity,  and  before  such  contract 
is  barred  by  the  statute  of  limitations  of 
that  state,  upon  his  return  to  Idaho,  the 
contract  follows  him  as  made,  and  is  en- 
forceable under  the  laws  of  that  state,  and 
the  statute  of  limitations  of  Idaho  con- 
tinues to  run   upon  his  re-entry  into  that 


CONFLICT  OF  LAWS,  II. 


521 


state  after  such  payment.    Sterrett  v.  Swee- 
ney, 20:  963,  98  Pac.  418,  15  Idaho,  416. 

148.  Whether  residence  within  a  state  for 
the  statutory  period  of  limitation  will  pre- 
vail as  a  plea  in  bar  upon  a  written  contract, 
made  in  another  state,  depends  upon  the  na- 
ture of  the  contract,  its  maturity,  and  the 
date  from  wliich  the  statute  begins  to  run. 
Sterrett  v.  Sweeney,  ao:  963,  98  Pac.  418, 
15  Idaho,  416. 

149.  An  action  on  a  promissory  note  can- 
not be  maintained  in  Kansas  under  §  22 
of  the  limitation  act  (Gen.  Stat.  1901,  § 
4450),  where  both  plaintiff  and  defendant 
were  nonresidents  of  the  state  when  the 
cause  of  action  accrued,  and  the  defendant 
resided  in  a  foreign  state  until  the  cause  of 
action  was  barred  by  the  laws  of  that 
state.  Bruner  v.  Martin,  14:  775,  93  Pac. 
165,  76  Kan.  862. 

150.  A  debtor  who,  after  contracting  in 
the  state  of  his  residence,  where  his  cred- 
itor continues  to  reside,  takes  up  his 
residence  in  another  state,  may,  when  suit 
is  brought  there  on  the  contract,  set  up 
its  statute  of  limitations,  although  the 
action  is  not  barred  by  the  statute  of  the 
state  where  the  contract  was  made.  Sta- 
ples V.  Waite,  30:  895,  76  Atl.  353,  30  R. 
L  516. 

151.  The  statute  of  limitations  of  the 
state  where  the  maker  of  a  note  resides 
when  it  falls  due  does  not  govern  an  action 
brought  upon  it  in  tlie  state  where  it  is 
in  fact  payable,  where  the  statute  of  tbat 
state,  although  prohibiting  actions  in  its 
courts  upon  causes  of  action  which  are 
fully  barred  by  the  laws  of  the  country 
where  defendant  had  previously  resided, 
states  that  the  provisions  shall  not  apply 
to  causes  of  action  arising  within  the 
state.  Moran  v.  Moran,  30:  898,  123  N.  W. 
202,  144  Iowa,  451. 

152.  Where,  in  response  to  notification 
by  a  person  resident  in  one  state,  that  he 
will  lend  money  to  one  residing  in  another 
state,  upon  receipt  of  a  note  for  the 
amount,  the  latter  forwards  the  note,  and 
the  former  upon  receiving  it  sends  the 
money,  the  contract  is  made  in  the  state 
where  the  lender  resides,  and  a  suit  upon 
it  is  governed  by  its  statute  of  limitations, 
and  not  by  that  of  the  state  where  the 
maker  resides.  Moran  v.  Moran,  30:  898, 
123   N.   W.   202,   144   Iowa,  451. 

153.  The  statute  of  limitations  of  the  fo- 
rum will  govern  in  an  action  to  enforce  the 
liability  of  a  stockholder  under  a  foreign 
statute,  unless  a  limitation  period  is,  by  the 
statute,  made  so  far  a  part  of  the  right  con- 
ferred as  to  follow  it  extraterritorially. 
Ramsden  v.  Knowles,  10:  897,  151  Fed.  721, 
81  C.  C.  A.  105. 

154.  A  statute  requiring  notice  of  a  claim 
for  personal  injuries  to  be  given  to  the  one 
responsible  therefor,  within  a  year  from 
their  occurrence,  is  applicable  in  an  action 
in  the  state  of  its  enactment  uj/on  a  claim 
arising  in  another  state  by  a  nonresident 
against  a  resident  of  the  state  where  tlier 
Digest   1-52  I..R.A.(N.S.) 


action   is    brought.     Arp   v.   Allis-Chalmers 
Co.  8:  997,  110  N.  W.  386,  130  Wis.  454. 

(Annotated  t 

155.  The  statute  of  limitations  of  the 
forum  governs  in  an  action  in  one  state  for 
a  personal  injury  based  on  a  statute  of  an- 
other state,  which  does  not  prescribe  tlie 
limitation  period.  Louisville  &  N.  R.  Co. 
v.  Bukhart,  46:  687,  157  S.  W.  18,  154  Ky. 
92.  ( Annotated ) 

156.  The  limitation  period  provided  by  a 
statute  giving  a  right  of  action  for  negli- 
gent death  governs  actions  brought  in  otlier 
states.  Cristilly  v.  Warner,  51:  415,  88 
Atl.  711,  87  Conn.  461. 

157.  If,  at  the  time  a  cause  of  action 
accrues  against  a  railroad  company  for 
death,  which  must  be  brought  within  two 
years,  it  is  absent  from  the  state,  because 
of  which  the  statute  does  not  begin  to  run 
until  it  comes  into  the  state,  the  action 
may  be  brought  in  another  state  where  it 
is  found,  after  the  expiration  of  the  two- 
vear  period.  Casey  v.  American  Bridge 
Co.  38:521,  134  N.  W.  Ill,  116  Minn.  461. 
Exemptions. 

158.  The  exemption  law  of  another  state 
pertains  to  remedy,  and  will  not  be  en- 
forced in  this  state.  National  Tube  Co.  v. 
Smith,  i:  195,  50  S.  E.  717,  57  W.  Va.  210. 

(Annotated) 
Rules  of  evidence. 

159.  A  Federal  court  is  governed,  in  ac- 
tions tried  by  it,  by  the  Federal  statute  gov- 
erning the  admissibility  of  evidence  of  trans- 
actions with  persons  since  deceased,  ratlier 
than  by  the  statute  of  the  state  in  which  it 
is  sitting.  Smith  v.  Au  Ores  Twp.  9:  876, 
150  Fed.  257,  80  C.  C.  A.  145. 
Damages. 

IGO.  A  person  who  is  injured  in  one  state 
as  the  result  of  the  negligent  act  of  a  per- 
son in  another  state  is  not  bound,  in  the 
courts  of  the  latter  state,  by  a  statute  of 
the  former  state  limiting  the  amount  of 
recovery  in  such  case.  Winona  v.  Botzet, 
83:  204,  169  Fed.  321,  94  C.  C.  A.  563. 

161.  An  action  in  tort  may  be  maintained 
by  the  addressee  of  a  telegram  of  whose 
interest  the  company  has  notice,  to  recover 
damages  for  mental  anguish  for  its  negli- 
gent failure  to  deliver  a  death  message  with- 
in the  state,  although  the  contract  for  trans- 
mission was  made  in  another  state  the  lawj 
of  which  do  not  recognize  the  right  to  re 
cover  damages  for  mental  suffering  in  sucl 
cases.  Penn  v.  Western  U.  Teleg.  Co.  41; 
223,  75  S.  E.  16,  159  N.  C.  306. 

(Annotatrd) 

162.  Breach  of  a  contract  promptly  to  do- 
liver  a  telegram  to  a  person  in  anotlicr 
state  takes  place  at  the  place  where  tlie 
sendee  was,  and  not  at  the  place  where  the 
mistake  in  changing  the  address  occurred, 
in  the  state  where  the  contract  was  en- 
tered into,  so  that  the  courts  of  the  former 
state,  in  which  the  action  is  brought,  will 
apply  its  own  rule  as  to  daniages  for  men- 
tal anguish,  and  not  that  of  the  state  wheie 
the  contract  was  made.  Western  U.  Teleg. 
Co.  V.  Lacer,  5:  751,  93  S.  W.  34,  122  Ky. 
839.  (Annotated) 


522 


CONFUSION— CONSENT. 


163.  The  rule,  as  to  recovery  of  damages 
for  mental  suffering,  of  the  state  where  a 
telegram  is  presented  for  transmission,  and 
not  that  of  the  state  where  it  is  to  be  de- 
livered, governs  in  an  action  for  damages 
for  failure  to  deliver  a  telegram,  although 
the  suit  is  brought  in  the  latter  state. 
Johnson  v.  Western  U.  Teleg.  Co.  lo:  256, 
57  S.  E.  122,  144  N.  C.  410. 

164.  In  case  of  breach  of  an  undertaking 
to  transmit  a  telegram  from  one  state  to 
another,  where  it  is  to  be  promptly  delivered 
to  one  of  its  citizens,  by  failure  promptly 
to  deliver  it  after  it  has  reached  the  latter 
state,  its  laws  will  govern  in  an  action  for 
the  breach,  brought  either  in  contract  or 
tort,  in  its  courts,  in  determining  whether 
or  not  damages  can  be  allowed  for  mental 
suffering  caused  by  the  delay,  where  no  neg- 
ligence is  alleged  or  shown  to  have  occurred 
in  the  former  state.  Western  U.  Teleg.  Co. 
V.  Hill,  23:  648,  60  So.  248,  163  Ala.  18. 

(Annotated) 

165.  In  determining  whether  or  not  dam- 
ages can  be  allowed  for  mental  anguish 
caused  by  failure  promptly  to  deliver  a 
telegram,  the  courts  of  the  forum  are  not 
bound  by  the  decisions  of  the  courts  where 
the  contract  was  made,  where  the  laws  of 
that  state  do  not  contain  any  express 
declaration  upon  the  subject.  Western  U. 
Teleg.  Co.  v.  Hill,  23:  648,  50  So.  248,  163 
Ala.  18. 

♦  »  » 


CONFUSION. 

See  Accession  and  Confusion. 


♦ «  » 

CONGRESS. 

Power  of,  over  interstate  commerce,  see 
Commerce. 

Validity  of  l^islation  by,  generally,  see 
Constitutional  Law. 

Permitting  electors  of  political  parties  to 
express  choice  of  candidate  for  United 
States  Senate,  see  Constitutional 
Law,  81;  Courts,  127;  Elections,  20, 
76,  77;  Statutes,  72,  101. 

Suit  to  enjoin  certification  of  names  of  can- 
didates for  office  of  United  States  sen- 
ator,  see  Courts,  225;   Parties,   117. 

Power  of,  to  terminate  dower  rights  on 
bankruptcy  of  husband,  see  Dower,  14. 

Libpl  of  member  of,  see  Libel  and  Slander, 
66,  67;  Pleading,  68,  69. 

Authority  from,  to  maintain  nuisance,  see 
Nuisances,  196. 

Exclusiveness  of  power  to  prohibit  use  of 
flag,  see  State,  1. 

Referring  to  congressional  debates  in  con- 
struing statute,  see  Statutes,  206. 

Contemporaneous  construction  of  act  of 
Congress  by  executive  officers,  see 
Statutes,  240. 

Effect  of  act  of  Congress  inconsistent  with 
terms  of  treaty,  see   Treaties,  2. 

Power  of,  as  to  tide  lands,  see  Waters,  75. 
Digest   1-52  L,.R.A.(N.S.) 


1.  A  statute  providing  that  each  politi- 
cal party  may  designate  its  choice  of  a  party 
candidate  for  the  United  States  Senate,  and 
that  the  persons  so  chosen  shall  be  the  nomi- 
nees of  the  respective  parties  for  such  ofiice, 
is  not  void  on  the  ground  that  it  is  an  at- 
tempt to  bind  successive  legislatures,  as 
such  law  is  subject  to  repeal  at  any  time. 
State  ex  rel.  McCue  v.  Blaisdell,  24:  465^ 
118  N.  W.  141,  18  N.  D.  .5.5. 

2.  A  statute  permitting  the  electors  of 
a  political  party  to  express  their  choice  of 
a  candidate  for  the  United  States  Senate 
recognizes  merely  the  right  of  petition,  and 
does  not  operate  as  an  electilsn  of  United 
States  Senators  by  popular  vote,  in  contra- 
vention of  the  constitutional  provision  re- 
quiring their  election  by  the  legislature,  al- 
though the  members  of  suoh  legislatures 
may  be  under  a  moral  obligation  to  support 
the  respective  candidates  of  their  party's 
choice.  State  ex  rel.  McCue  v.  Blaisdell, 
24:  465,  118  N.  W.  141,  18  N.  D.  55. 


CONNECTING  CARRIERS. 

See  Cabbiebs,  II.  q.  III.  j. 


CONNIVANCE. 


In  divorce  suit,  see  Divorce  and  Separa- 
tion, IV. 


CONSCIENCE. 

Liberty  of,  see  Constitutional  Law,  n,  d. 


CONSENT. 


Estoppel  by,  see  Appeal  and  Error,  532- 
534;  Estoppel,  III.  f. 

Of  property  owners  to  erection  of  business 
block  or  store  on  street,  see  Buildings, 
3;   Constitutional  Law,  518,  660. 

Of  shipper  to  forwarding  of  live  stock  with- 
out unloading,  see  Carriers,  909. 

Of  abutting  owner  to  standing  of  hacks  in 
street,  see  Constitutional  Law,  254. 

Of  landlord  to  assignment  of  lease,  see  Con- 
tracts, 137. 

Of  property  owners  to  local  improvements, 
see  Contracts,  453;  Public  Improve- 
ments, 9-12. 

Of  husband  to  wife's  execution  of  will,  see 
Contracts,  52,  405. 

Of  accused  to  use  of  shoes  for  comparison 
of  footprints,  see  Criminal  Law,  131. 

Of  member  of  mutual  benefit  society  ta 
future  changes  in  rules,  see  Insurance, 
433. 

Of  landlord  to  construction  of  building  or 
improvements,  see  Mechanics'  Liens, 
12,  13. 


CONSEQUENTIAL  INJURIES— CONSORTIUM. 


523 


Of  vendor  to  making  of  improvements  by 
vendee,  see  Mechanics'  Liens,  14. 

Of  parent  to  enlistment  of  son  in  militia, 
see  Militia. 

Of  public  service  commission  to  construc- 
tion of  plant  by  corporation  organized 
to  supply  and  distribute  electricity,  see 
Public  Sebvice  Commission,  6. 

To  taking  of  mortgaged  property  out  of 
state,   see   Chattel  Mortgage,   52. 

To  establishment  of  barroom,  see  Consti- 
tutional Law,  275. 

To  jurisdiction  of  courts,  see  Coubts,  11. 

To  adoption  of  child,  see  Parent  and 
Child,  33-40. 

To  divorce,  effect  on  alimony,  see  DrvoBCE 
'     AND  Separation,  107. 

To  operation,  see  Estoppel,  221;  Phy- 
sicians AND  Surgeons,  36-41;  Trial, 
309,  310,  313. 

To  discharge  of  water  on  one's  property, 
evidence  as  to,  see   Evidence,   1803. 

To  granting  of  license,  see  Intoxicating 
Liquors,  64. 

To  larceny,  see  Larceny,  1. 

To  operation  of  street  railway,  see  Street 
Railways,  3-5. 

To  marriage,  see  Trusts,  5;  Wills,  284, 
285. 

As  defense  to  crime,  see  Criminal  Law, 
I.  f. 

Judgment  by,  see  Judgment,  218,  343-345. 

Marriage  of  person  under  age  of,  see  Mar- 
riage,   14-16,  29,   43-45. 

Rape  of  female  under  age  of,  see  Rape, 
5-7. 

Effect  of  statute  fixing  age  of,  to  render 
girl  under  that  age  incapable  of  com- 
mitting sexual  crime,  see  Witnesses, 
129. 

Appointment  of  receiver  by  consent  decree, 
see  Receivers,  7. 

Statute  autliorizing  action  without  notice 
by  administrative  board  acting  by  con- 
sent, see  Constitutional  Law,  583. 

Validity  and  construction  of  conditions  re- 
quiring consent  to  marriage,  see  Con- 
tracts, 474. 

Presumption  and  burden  of  proof  as  to, 
see  Evidence,  II.  e,  4. 

Sufficiency  of  proof  of,  see  Evidence,  2345- 
2347. 

Question  for  jury  as  to,  see  Trial,  309,  310, 
313-317. 


CONSEQUENTIAL    INJURIES. 

From  condemnation  of  property,  see  Dam- 
ages, III.  1,  3;  Eminent  Domain,  III. 
e. 

From  construction  of  street  grade,  see  High- 
ways, III. 


CONSIDERATION. 

SuflSciency  of,  to  support  conveyance  as 
against  trustee  in  bankruptcy,  see 
Bankruptcy,  118. 

Digest   1-52  L.R.A.(N.S.) 


Of  bill  or  note,  see  Bills  and  Notes,  I.  c. 

For   contractor's   bond,   see   Bonds,   13. 

For  liquor  bonds,  see  Bonds,  32. 

Of  contract,  see  Contracts,  I.  c. 

For  deeds,  see  Deeds. 

Of     conveyance     attacked     for     fraud,     see 

Fraudulent  Conveyances,  II. 
Of  gift,  see  Gift,  2. 
Of  contract  conferring  option   to  work  oil 

and  gas  mines,  see  Mines,  58. 
For  mortgage,  see  Mortgage,  ]8. 
For  tax  deed,  see  Taxes,  223,  224. 
For  bona  fide  purchase  of  land,  see  Vendor 

AND  Purchaser,  94,  103. 
Presumption   of,   from  sale,   see  Evidence, 

538,  539. 
Parol  evidence  as  to,  see  Evidence,  VI.  g. 
Evidence  of  generally,  see  Evidence,  XI.  m. 
Affidavit  of  consideration  attached  to  chat- 
tel mortgage,  see  Chattel  Mortgage, 

5,  6. 
Admission   of,  by  pleading,   see   Pleading, 

87. 
Necessity   of   return   of,    on   revocation    or 

grant  of  lands  by  state,  see  State,  2. 
Sufficiency    of,    as    question    for    jury,    see 

Trial,  621. 


CONSIGNEE. 


Right  to  garnish  freight  money,  see  Gar- 
nishment, 4,  6. 

Right  to  maintain  action  against  carrier, 
see  Parties,  27-32. 


CONSIGNMENT. 


Bank's  liability  for  delivery  of,  see  Banks, 
8. 


CONSOLIDATION. 

Of  actions,  see  Action  or  Suit,  II.  b. 

Of    indictments,    see    Appeal    and    Error, 

1538;    Criminal   Law,   69,   70;    Jury, 

80. 
Of  corporations,  see  Corporations,   II. 
Of  religious  societies,  see  Courts,  185-190; 

Religious   Societies,   1,   6,    39,   21-26. 
Of  railroads,  see  Estoppel,  150 ;  Railroads, 

4,  14-16. 
Of  insurance  companies,  see  Insurance,  12. 


CONSORTIUM. 


Husband's  right  to  recover  for  loss  of,  see 
Husband  and  Wife,  154. 

Wife's  right  of  action  for  loss  of,  see  Hus- 
band AND  Wife,  179-184.  ' 


524 


CONSPIRACY,  I. 


CONSPIRACY. 

7.  In   general,    1—14:. 
II.  To  cheat,  roh,  or  steal. 

III.  To  injure  the  business  of  another, 

15-31. 

a.  In  general,    15— IS. 

b.  Boycott,    19—31. 

IV.  Of  laborers;  strikes,  32—65. 

Action  for  inducing  breach  of  contract,  see 
Case,  II. 

Liability  of  corporation  for  act  of  agent 
in  "joining   in,   see   Cokpobations,    128. 

Seeking  transfer  of  stock  on  books  of  cor- 
poration in  interest  of,  see  Coepoba- 
TiONS,  223. 

Original  jurisdiction  of  Supreme  Court  to 
enjoin,  see  COLBTS,  222. 

Criminal  liability  of  co-conspirators,  see 
Criminal  Law,  50-52. 

Jurisdiction  of  equity  in  case  of,  see 
Equity,  69,  70. 

Proof  of  formation  of,  and  of  overt  act 
prosecution  for  which  is  barred  by  limi- 
tation, see  Evidence,  1971. 

Proof  of  acts  or  declarations  of  co-conspira- 
tors, see  Evidence,  X.  g. 

Sufficiency  of  proof  of,  see  Evidence,  2364. 

Indictment  for,  see  Indictment,  etc.,  44, 
79-81. 

Injunction  against,  see  Injunction,  123- 
128. 

When  action  for  is  barred,  see  Limitation 
OF  Actions,  270,  271. 

Combinations  in  restraint  of  trade,  com- 
merce, or  competition,  see  Monopoly 
AND  Combinations,  II. 

Liability  for  negligently  assisting  in,  gee 
Negligence,  25. 

Who  may  maintain  action  for,  see  Pasties, 
1. 

Necessary  parties  defendant  in  action  to  re- 
cover for,  see  Pabties,  155. 

Parties  to  action  for  conspiring  to  entice 
servant,  see  Pabties,   192. 

Giving  perjured  testimony  in  pursuance  of, 
see  Pebjuby,  15. 

Publication  in  newspaper  of  matters  detri- 
mental to  persons  on  trial  as  conspir- 
acy to  pervert  justice,  see  Pebvebsion 
OF  Justice. 

Sufficiencv  of  allegation  as  to,  see  Plead- 
ing, 372,  441. 

Prima  facie  proof  of  conspiracy  before  ad- 
mitting declarations  of  one  conspirator, 
see  Tbial,  38. 

I.  In  general. 

(See  also  Conspiracy,  I.  a,  in  Digest  L.R.A. 
1-70.) 

As  to  blacklisting  by  employer,  see  Black- 
listing. 

By  incorporators  of  trust  company  to  divert 
subscribed  funds,  see  Cokpobations, 
184. 

To  carry  election  by  fraud,  see  Coubts,  80, 
222;  Injunction,  123. 

To  induce  shippers  to  receive  rebate,  see 
Cbiminal  Law,  220. 

Digest  1-52  I..R.A.(N.S.) 


To  get  man  into  indecent  and  embarrassing 
situation,  see  Indecency. 

To  burn  insured  property  as  defense  to  re- 
covery where  property  is  otherwise  de- 
stroyed, see  Insurance,  855. 

To  entice  miners  to  desert  service,  see  Mas- 
ter AND  Sebvant,  125. 

1.  Combination  of  several  persons  to 
commit  it  cannot  make  illegal  an  act  which 
would  be  valid  if  done  by  an  individual. 
Lindsay  v.  Montana  Federation  of  Labor, 
i8:  707,  96  Pac.  127,  37  Mont.  264. 

2.  A  civil  conspiracy  is  a  combination 
of  two  or  more  persons  to  accoii)|jlisti,  by 
concerted  action,  an  unlawful  or  oppressive 
object,  or  lawful  object  by  unlawful  or  op- 
pressive means.  National  Fireprooting  Co. 
V.  Mason  Builders'  Asso.  26:  148,  169  Fed. 
259,  94  C.  C.  A.  535. 

3.  In  order  to  sustain  a  civil  action 
for  conspiracy  it  is  generally  necessary 
that  there  shall  be  an  averment  and  proof 
of  the  commission  of  an  act  which,  if  done 
by  one  alone,  would  at  the  common  law  con- 
stitute a  ground  for  action  on  the  case. 
Sleeper  v.  Balver,  39:  864,  134  N.  W.  716, 
22  N.  D.  386. 

4.  The  question  of  the  existence  of  a 
conspiracy  in  violation  of  New  York  Penal 
Code,  §  168,  subdivs.  5  and  6,  is  to  be  de- 
termined by  common-law  principles.  Na- 
tional Fireprooting  Co.  v.  Mason  Builders* 
Asso.  26:  148,  169  Fed.  259,  94  C.  C.  A.  535. 

5.  One  who  comes  into  a  conspiracy 
after  it  is  concocted,  with  full  knowledge 
of  its  existence  and  character,  and  with  the 
purpose  of  furthering  its  design,  is  punish- 
able as  a  conspirator.  Thomas  v.  United 
States,  17:  720,  156  Fed.  897,  84  C.  C.  A. 
477. 

6.  The  change,  by  the  statutory  revi- 
sion commission  having  no  authority  to  al- 
ter the  meaning  of  a  statute,  of  the  words 
"conspire  to  commit  an  offense  against  the 
laws  of  the  United  States,"  to  "conspire  to 
commit  an  offense  against  the  United 
States,"  in  a  statute  providing  for  the  pun- 
ishment thereof,  does  not  limit  the  pun- 
ishment to  cases  of  conspiracy  against  the 
United  States  as  such,  but  it  extends  to  con- 
spiracy to  violate  the  simple  penal  provi- 
sions of  its  statutes.  Thomas  v.  United 
States,  17:  720,  156  Fed.  897,  84  C.  C.  A. 
477. 

7.  A  general  statute  punishing  by  im- 
prisonment any  conspiracy  to  violate  a  stat- 
ute of  the  United  States  is  not  inapplicable 
to  a  conspiracy  to  commit  an  offense  under 
a  subsequent  statute  providing  for  the  pun- 
ishment of  that  offense  by  fine  only,  on  the 
theory  that  its  application  would  indirectly 
operate  to  subject  the  offender  to  punish- 
ment not  warranted  by  law,  or  that  the 
former  statute  was  superseded  by  the  latter. 
Thomas  v.  United  States,  17:  720,  156  Fed. 
897,  84  C.  C.  A.  477. 

8.  Although  no  action  will  lie  against 
an  individual  for  alienating  from  a  woman 
the  affections  of  her  husband,  she  may 
maintain  an  action  .-^gainst  several  for  con- 
spiracy to  do  80,  and  to  prevent  her  from 


CONSPIRACY,  II .-III.  b. 


525 


Becurinj^  a  divorce  for  his  desertion,  where 
the  object  is  breach  of  his  marriage  con- 
tract, which,  under  the  statutes,  is  crim- 
inal, and  the  statute  makes  combination 
to  prevent  anotlier  from  doing  any  lawful 
act  a  criminal  ofVense.  Randall  v.  Lon- 
storf,  3:  470,  105  N.  W.  6G3,  126  Wis.   147. 

(Annotated) 
9.  The  agreement  of  two  or  more  per- 
sons to  take  and  use  another's  automobile 
without  authority  may  be  punished  as  a 
criminal  conspiracy.  State  v.  Davis,  34: 
295,  70  S.  E.  811,  88  S.  C.  229. 

10.  On  the  trial  of  an  indictment  charg- 
ing three  persons  jointly  with  conspiring 
together,  if  one  pleads  guilty  and  has  judg- 
ment passed  against  him,  and  the  other  two 
are  acquitted,  the  judgment  passed  against 
the  one  who  pleaded  guilty  is  bad  and  can- 
not stand.  King  v.  Plummer,  4  B.  R.  C. 
917,  [1902]  2  K.  B.  339.  Also  Reported  in 
71  L.  J.  K.  B.  N.  S.  805,  66  J.  P.  647,  86 
L.  T.  N.  S.  836,  18  Times  L.  R.  659,  51 
Week.  Rep.  137,  20  Cox,  C.  C.  243. 

(Annotated) 
Conspiracy  to   sliadow  person. 

11.  Employers  of  a  detective  agency  and 
its  manager  cannot  escape  liability  for  con- 
spiracy wrongfully  to  shadow  a  person,  on 
the  theory  that  they  are  not  responsible  for 
the  acts  of  the  detectives  who  actually  did 
the  work  in  excess  of  their  authority. 
Schultz  V.  Frankfort  Marine  Acci.  &  Plate 
Glass  Ins.  Co.  43:  520,  139  N.  W.  386,  151 
Wis.  537. 

12.  A  private  citizen  cannot  openly 
shadow  another  for  the  purpose  of  prevent- 
ing his  leaving  town  until  a  determination 
can  be  reached  as  to  whether  or  not  to  have 
him  arrested,  where  a  statute  forbids'  a  com- 
bination to  prevent  a  person  from  doing 
any  lawful  act.  Schultz  v.  Frankfort  Ma- 
rine Acci.  &  Plate  Glass  Ins.  Co.  43:  520, 
139  N.  W.  386,  151  Wis.  537. 

Inducing  breach  of  contract. 
Right  of  action  for  inducing  breach  of  con- 
tract generally,  see  Case,  II. 

13.  Persons  who  conspire  to  induce  oth- 
ers to  break  a  valid  contract  between  other 
persons  are  liable  to  action  therefor. 
Thacker  Coal  &  Coke  Co.  v.  Burke,  5:  logr, 
63  S.  E.  161,  59  W.  Va.  253. 

14.  The  civil  action  of  conspiracy  is  a 
tort  action,  and  cannot  in  general  be  main- 
tained for  inducing  a  tliird  person  to  break 
his  contract  with  the  plaintiff,  except  where 
direct  fraud  or  force  or  coercion  has  been 
used;  the  consequence  at  law  being  only  a 
broken  contract,  for  which  the  party  to  the 
contract  may  have  his  remedy  by  suing 
upon  it.  Sleeper  v.  Baker,  39:  864,  134  N. 
W.  716,  22  N.  D.  386. 

II.  To  cheat,  rob,   or  steal. 

(See  also  Conspiracy,  I.  b,  in  Digest  L.R.A. 
1-70.J 

To  commit  larceny,  see  Larceny,  24. 
Digest   1-52  L.R.A.(N.S.) 


///.  To  injure  the  business  of  another. 

a.   In  general. 

(See  also  Conspiracy,  I.  e,  I,  in  Digest 
L.R.A.  1-10.) 

To  secure  omission  from  business  directory 
of  name  of  business  rival,  see  Injunc- 
tion, 126. 

Injurv  to  business  in  absence  of  conspiracy, 
see  Case,  18-21. 

Combinations  in  restraint  of  trade,  com- 
merce, or  competition,  see  Monopoly 
AND  Combinations,  II. 

15.  A  combination  of  two  or  more,  with- 
out justification  or  excuse,  to  injure  a  man 
in  his  trade  by  inducing  his  customers  or 
servants  to  break  their  contracts  with  him, 
or  not  to  deal  with  him  or  continue  in  his 
employment,  is,  if  it  results  in  damage  to 
him,  actionable.  Quinn  v.  Leathern,  1  B. 
R.  C.  197,  [1901]  A.  C.  495.  Also  Reported 
in  70  L,  J.  P.  C.  N.  S.  76,  65  J  P.  708, 
50  Week.  Rep.  139,  85  L.  T.  N.  S.  289,  17 
Times  L.  R.   749.  (Annotated) 

16.  To  prevent  persons  from  engaging  in 
a  lawful  business  is  unlawful  at  common 
law,  and  conspiracy  to  accomplish  it  may 
be  rendered  unlawful  by  statute.  State  v. 
Duncan,  4:  1144,  63  Atl.  225,  78  Vt.  364. 

17.  A  manufacturer,  the  market  for 
whose  product  in  a  certain  city  restricted 
or  destroyed  because  of  a  combination  be- 
tween other  manufacturers  and  builders  to 
prevent  the  sale  of  such  product  except  up- 
on conditions  with  which  he  does  not  wish 
to  comply,  may  recover  the  damages  there- 
by inflicted  upon  him,  from  any  o;-  all  of  the 
members  of  the  combination.  Purington  v. 
Hinchliff,  2:  824,  76  N.  E.  47,  219  111.   159. 

(Annotated) 
Of  physicians. 

18.  An  association  of  physicians  to  aid 
in  the  enforcement  of  a  statute  prohibit- 
ing the  solicitation  of  patients  by  paid 
agents  is  legal.  Thompson  v.  Van  Lear, 
5:  588,  92  S."W.  773,  77  Ark.  506. 

b.    Boycott. 

(See  also  Conspiracy,  I.  c,  2,  in  Digest 
L.R.A.  1-10.) 

Injunction  against,  see  Injunction,  134, 
147,   153-162,  443. 

Boycott  by  insurance  company,  see  Monopo- 
ly AND  Combinations,  82. 

19.  A  boycott  is  a  combination  to  harm 
one  person  by  coercing  others  to  harm  him. 
American  Federation  of  Labor  v.  Buck's 
Stove  &  Range  Co.  32:  748,  33  App.  D.  C.  83. 

20.  A  hospital  excluded  from  the  list  has 
no  cause  of  action  on  the  ground  of  illegal 
boycott,  against  several  employers  who,  to 
serve  their  own  interests,  deduct  from  the 
wages  of  their  employees  a  small  amount 
for  a  hospital  fund,  in  consideration  of 
which  the  employees  are  entitled  to  tickets 
entitling  them  to  care  in  case  of  injury,  in 


526 


CONSPIRACY,  IV. 


any  hospital  on  a  list  furnished  by  the  em- 
ployers; and  it  will  bo  immaterial  that  the 
lists  were  selected  with  a  view  to  injure  the 
business  of  the  excluded  hospitals.  Union 
Labor  Hospital  Asso.  v.  Vance  Redwood 
Lumber  \Jo.  33:1034,  112  Pac.  886,  158  Cal. 
551.  (Annotated) 

Against  merchant. 
See  also  infra,  23. 

21.  Injury  caused  to  a  retail  merchant 
because  of  inability  to  purchase  goods  on 
account  of  a  combination  among  other  re- 
tail and  wholesale  merchants  for  the  pur- 
pose of  maintaining  maximum  prices  for 
the  goods  dealt  in  by  them,  to  be  made 
effectual  by  refusal  to  deal  with  persons  who 
will  not  agree  to  maintain  prices,  and  by 
threats  to  boycott  wholesalers  who  deal  with 
them,  give  a  right  of  action.  Klingel's 
Pharmacy  v.  Sharpe  &■  Dohme,  7:  976,  64 
Atl.  1029,  104  Md.  218.  (Annotated) 
By  associations  generally. 

22.  An  undertaking  among  themselves 
by  the  members  of  an  organization  of  retail 
dealers  that  they  will  purchase  only  from 
wholesalers  who  do  not  sell  direct  to  con- 
sumers is  a  violation  of  a  statute  making 
a  combination  intended  to  hinder  competi- 
tion in  the  sale  of  a  commodity  a  criminal 
conspiracy.  Retail  Lumber  Dealers'  Asso. 
V.  State  ex  rel.  Stirling,  35:  1054,  48  So. 
1021,  95  Miss.  337.  (Annotated) 
Dy  labor  union. 

Conspiracy  by  labor  unions,  generally,  see 

infra,  IV. 
Injunction    against,     see     Constitutional 

Law,    754;     Corpokations,    258;     In- 
'         junction,  134,  137,  155-162. 
See  also  Case,  30;  Labor  Organizations, 

11. 

23.  A  combination  of  workmen  to  with- 
draw their  patronage  from  a  merchant  and 
from  those  who  deal  with  him  is  not  an  un- 
lawful act  which  equity  may  enjoin.  Lind- 
say V.  Montana  Federation  of  Labor,  18:  707, 
96  Pac.  127,  37  Mont.  264. 

24.  Tlie  fact  that  an  individual  might  re- 
fuse to  labor  for  one  who  handled  the  ma- 
terial of  a  concern  against  which  a  strike 
has  been  declared  does  not  render  legal  a 
combination  or  conspiracy  among  all  the 
members  of  a  labor  organization  to  do  so 
for  the  purpose  of  injuring  such  concern. 
Lohse  Patent  Door  Co.  v.  Fuelle,  22:  607, 
114  S.  W.  997,  215  Mo.  421. 

25.  A  labor  union  is  guilty  of  an  illegal 
boycott  by  notifying,  in  pur,suance  of  a  con- 
spiracy to  injure  the  business  of  one  against 
whom  a  strike  has  been  declared,  custom- 
ers of  such  person  that  its  members  will  not 
handle  material  furnished  by  him,  and  that 
any  attempt  on  their  part  to  force  them  to 
do  so  will  cause  a  strike  to  be  called  against 
them.  Lohse  Patent  Door  Co.  v.  Fuelle, 
22:  607,  114  S.  W.  997,  215  Mo.  421. 

26.  That  each  member  of  a  labor  union 
has  a  right  to  withdraw  his  patronage  from 
a  given  concern  and  those  who  deal  with  it 
does  not  make  valid  a  combination  of  all 
the  members  to  do  the  same  thing  by  con- 
cert of  action.  American  Federation  of 
Digest  1-52  ]1R.A.(N.S.) 


Labor  v.  Buck's  Stove  &  Range  Co.  32:  748, 
33  App.  D.  C.  83. 

27.  The  mere  refusal  by  members  of  a 
labor  union  to  lay  stone  for  the  foundation 
of  a  building  in  case  an  employer  of  non- 
union labor  secures  the  contract  for  the 
superstructure,  which  causes  their  employer 
to  refuse  to  lay  the  foundation  in  that 
event,  so  that  the  nonunion  contractor  is 
deprived  of  the  opportunity  to  do  the  work, 
gives  him  no  right  of  action  for  the  result- 
ing damages.  Meier  v.  Speer,  32:  792,  132 
S.  W.  988,  96  Ark.  618. 

28.  The  failure  of  members  of  a  labor 
union,  acting  in  a  public  and  official  capaci- 
ty as  nieml)era  of  a  board  of  examiners  of 
plumbers,  to  appoint  as  plumbing  inspector 
a  candidate  who  had,  prior  to  their  acces- 
sion to  office,  been  indorsed  by  the  union, 
does  not  justify  the  union  in  fining,  sus- 
pending, or  boycotting  them;  and  they  are 
entitled  to  relief  by  injunction  and  by  judg- 
ment remitting  the  fine  imposed,  remstating 
them  in  the  union,  and  condemning  the 
union  and  its  officers  and  members  who  par- 
ticipated in  its  actions,  in  damages,  actual 
and  exemplary.  Schneider  v.  Local  Union 
No.  60,  5:  891,  40  So.  700,  116  La.  270. 

(Annotated) 

29.  The  attempt  by  a  labor  union  to  co- 
erce a  mill  owner  to  unionize  his  mill  by 
refusing  to  handle  his  product  unless  he 
does  so,  and  notifying  prospective  custom- 
ers of  that  fact,  may  be  enjoined  as  an 
unlawful  conspiracy.  Purvis  v.  Local  No. 
500,  United  Brotherhood  of  C.  &  J.  of  A. 
12:  642,  63  Atl.  585,  214  Pa.  348. 

(Annotated) 

30.  A  labor  union  cannot  lawfully  notify 
customers  not  to  deal  with  a  person  whom 
it  has  put  on  the  unfair  list,  although  no 
threat  accompanies  the  notice,  if  the  per- 
sons receiving  it  understand  that  injury  will 
result  to  those  failing  to  comply  with  it. 
Hey  v.  Wilson,  16:  85,  83  N,  E.  928,  232  111. 
389.  (Annotated) 

31.  Members  of  a  labor  union  who  have 
caused  a  loss  of  business  to  a  merchant  be- 
cause of  an  unlawful  boycott  of  his  ma- 
terials cannot  avoid  liability  to  him  for 
such  damages  as  are  capable  of  svibstantial 
proof,  by  the  fact  that  it  is  impossible  to 
determine  the  total  amount  of  loss,  and 
may  be  difficult  to  ascertain  with  absolute 
certainty  the  money  value  of  even  the  dam- 
ages that  can  be  proved.  Burnham  v.  Dowd, 
51:  778,  104  N.  E.  841,  217  Mass.  351. 

IV.  Of  laborers;  strikes. 

(See  also  Conspiracy,  I,  d,  in  Digest  L.R.A. 
1-70.) 

Boycotting  by  labor  union,  see  supra,  23-31. 

Recovery  back  of  money  paid  at  demand  of 
labor  organization,  see  Assumpsit,  48. 

Jurisdiction  of  equity  in  case  of,  see 
Equity,  69. 

Injunction  against,  see  Injunction,  129- 
162. 

Contempt  in  disobeying  injunction,  see  Con- 
tempt, 46-51. 


CONSPIRACY,  IV. 


527 


Action  for  inducing  breach  of  contract,  see 

Labor   Organizations,   10. 
As   to  combinations   in   restraint   of   trade, 

see  Monopoly  and  Combinations,  65- 

68. 

32.  The  enforcing  payment  of  arrears  of 
defalcations  by  a  former  officer  of  the  union 
is  not  such  an  object  as  will  justify  its 
officers  in  combining  to  prevent  him  from 
obtaining  any  employment  in  his  trade  or 
calling,  to  his  injury.  Giblan  v.  National 
Amalgamated  Laborers'  Union  of  Great 
Britain  and  Ireland,  1  B.  R.  C.  528,  [1903] 
2  K.  B.  600.  Also  Reported  in  72  L.  J,  K. 
N.  B.  S.  907,  89  L.  T.  N.  S.  386,  19  Times 
L.  R.  708.  (Annotated.) 

33.  The  provision  in  the  Conspiracy  and 
Protection  of  Property  Act,  1875,  C.  86, 
§  3,  that  an  agreement  or  combination  by 
two  or  more  persons  to  do  or  procure  to  be 
done  any  act  in  contemplation  or  further- 
ance of  a  trade  dispute  between  employers 
and  workmen  shall  not  be  indictable  as  a 
conspiracy  if  such  act  committed  by  one 
person  would  not  be  punishable  as  a  crime, 
has  nothing  to  do  with  civil  remedies;  and 
therefore  does  not  preclude  the  maintenance 
of  an  action  for  damages  arising  from  acts 
done  in  pursuance  of  such  a  combination. 
Quinn  v.  Leathern,  1  B.  R.  C.  197,  [1901] 
A.  C.  495.  Also  Reported  in  70  L.  J.  P. 
C.  N.  S.  76,  65  J.  P.  708,  50  Week.  Rep. 
139,  85  L.  T.  N.  S.  289,  17  Times  L.  R. 
749. 

34.  The  words  "trade  dispute  between 
employers  and  workmen,"  in  a  statute  pro- 
viding that  any  agreement  or  combination 
by  two  or  more  persons  to  do  or  procure 
to  be  done  any  act  in  contemplation  or 
furtherance  of  a  trade  dispute  between  em- 
ployers and  workmen  shall  not  be  indictable 
as  a  conspiracy  if  such  act  committed  by 
one  person  would  not  be  punishable  as  a 
crime,  do  not  include  a  dispute  on  trade 
union  matters  between  workmen  who  are 
members  of  a  trade  union  and  an  employer 
of  nonunion  workmen  who  refuses  to  em- 
ploy members  of  the  union.  Quinn  v. 
Leathem,  1  B.  R.  C.  197,  [1901]  A.  C.  495. 
Also  Reported  in  70  L.  J.  P.  C.  N.  S. 
76,  65  J.  P.  708,  50  Week.  Rep.  139,  85 
L.  T.  N.  S.  289,  17  Times  L.  R.  749. 

35.  A  statute  permitting  a  labor  union 
to  devise  and  adopt  ways  and  means  to  make 
its  rules  effective  does  not  authorize  an  in- 
terference with  the  absolute  rights  of  oth- 
ers. Purvis  v.  Local  No.  500,  United  Broth- 
erhood of  C.  &  J.  of  A.  12:  642,  63  Atl.  585, 
214  Pa.  348. 

36.  An  act  providing  that  it  shall  not 
be  unlawful  for  any  two  or  more  persons 
to  unite  to  persuade,  advise,  or  encourage 
by  peaceable  means  any  person  or  persons 
to  enter  into  any  combination  for  or  against 
leaving  or  entering  into  the  employment 
of  any  person,  persons,  or  corporation,  does 
not  legitimatize  an  invasion  of  private 
rights,  nor  prevent  the  party  injured  from 
having  full  redress.  George  Jonas  Glass  Co. 
Digest  1-52  Ii.R.A.(N.S.) 


v.  Glass  Bottle  Blowers  Asso.   (N.  J.  Err.  & 
App.)   41:  445,  79  Atl.  262,  77  N.  J.  Eq.  219. 

(Annotated) 

37.  The  attempt  to  force  all  laborers  to 
combine  in  anions  is  against  the  policy  of 
the  law  because  aiming  at  monopoly.  Ber- 
rf  V.  Donovan,  5:  899,  74  N.  E.  603,  188 
Mass.  353. 

38.  To  follow  one  because  he  has  taken 
employment  at  a  particular  place,  to  spy 
after  him,  to  stop  him  and  warn  him,  to  put 
him  in  fear,  to  intimidate  him  or  coerce 
him,  are  alike  unlawful.  Franklin  Union 
No.  4  V.  People,  4:  looi,  77  N.  E,  176,  220 
111.  355. 

39.  The  purpose  of  strengthening  itself 
in  future  contests  with  the  employer  will 
not  justify  a  labor  union  in  interfering  with 
the  contracts  of  nonunion  workmen  for  the 
purpose  of  compelling  them  to  join  the 
union.  Berry  v.  Donovan,  5:  899,  74  N.  E. 
603,  188  Mass.  353. 

40.  An  agreement  between  a  master  ma- 
sons' association  and  a  bricklayers'  union 
that  provisions  in  a  building  contract  for 
the  fireproofing  of  the  building  shall  not  be 
sublet,  which  is  made  for  the  benefit  of  the 
bricklayers,  is  not  a  conspiracy,  although  it 
incidentally  works  injury  to  manufactvirers 
of  fireproofing  material.  National  Fire- 
proofing  Co.  v.  Mason  Builders'  Asso.  26: 
148,  169  Fed.  259,  94  C.  C.  A.  535. 

41.  Tlie  enforcement  of  a  provision  in  a 
contract  between  mason  contractors  and 
bricklayers  that  items  in  building  contracts 
for  fireproofing  shall  not  be  sublet,  by  a 
clause  forbidding  bricklayers  to  work  for 
those  who  do  not  comply  with  it,  and  by 
strikes,  and  notification  to  contractors  that 
they  cannot  take  contracts  contrary  to  the 
terms  of  the  agreement,  without  incurring 
the  penalty,  is  not  unlawful  or  oppressive 
so  as  to  effect  a  conspiracy.  National  Fire- 
proofing Co.  V.  Mason  Builders'  Asso.  26: 
148,  169  Fed.  259,  94  C.  C.  A.  535. 

To    compel   discharge    of   employee. 

Damages  for,  see  Damages,  309. 

Question   for  jury   as  to  justifiableness   of, 

see  Trial,  633. 
See  also  supra,  39;  infra,  60;  Case,  37-30. 

42.  Interference  by  a  combination  of  per- 
sons to  obtain  the  discharge  of  a  workman 
because  he  refuses  to  comply  with  their 
wishes  and  join  a  union  for  their  advantage 
cannot  be  justified  as  a  part  of  the  compe- 
tition of  workmen  with  one  another.  Ber- 
ry V.  Donovan,  5:  899,  74  N.  E.  603,  188 
Mass.  353.  (Annotated) 

43.  A  combination  of  two  or  more  per- 
sons, without  justification,  to  injure  any 
workman  by  inducing  employers  not  to  em- 
ploy him  or  continue  to  employ  him,  is, 
if  it  results  in  damage  to  him,  actionable. 
Giblan  v.  National  Amalgamated  Laborers' 
Union  of  Great  Britain  and  Ireland,  1  B. 
R.  C.  528,  [1903]  2  K.  B.  600.  Also  Re- 
ported in  72  L.  J.  K.  B.  N.  S.  907,  89 
L,  T.  N.  S.  386,  19  Times  L.  R.  708. 

(Annotated) 

44.  An  action  will  lie  against  a  trade 
union  for  procuring  the  employer  to  break 
a  contract  of  apprenticeship  by  giving  no- 


528 


CONSPIRACY,  IV. 


tice  that  if  the  engagement  of  plaintiff  as 
an  apprentice  should  be  continued  other 
employees  who  were  members  of  the  union 
would  be  called  out,  even  though  plaintiff's 
employment  may  have  been  in  violation  of 
a  previous  agreement  between  the  union 
and  the  employer.  Read  v.  Friendly  Soc. 
of  Operative  Stonemasons  of  England,  Ire- 
land &  Wales,  1  B.  R.  C.  503,  [1902]  2 
K.  B.  732.  Also  Reported  in  71  L.  J.  K.  B. 
N.  S.  994,  51  Week.  Rep.  115,  87  L.  T. 
N.  S.  493,  19  Times  L.  R.  20,  66  J.  P.  822. 

( Annotated ) 

45.  A  belief  that  such  action  was  for 
the  best  interests  of  the  union  is  no  justi- 
fication for  procuring  plaintiff's  discharge 
by  a  threat  to  call  a  strike  against  his  em- 
ployer. Read  v.  Friendly  Soc.  of  Oper- 
ative Stonemasons  of  England,  Ireland  & 
Wales,  1  B.  R.  C.  503,  [1902]  2  K.  B.  732. 
Also  Reported  in  71  L.  J.  K.  B.  N.  S.  994, 
61  Week  Rep.  115,  87  L.  T.  N.  S.  493,  19 
Times  L.  R.  20,  66  J.  P.  822. 

46.  As  to  whether  it  would  be  a  good 
defense  to  an  action  for  unlawful  interfer- 
ence with  one's  employment  by  notifying 
his  employer  to  that  effect,  that  his  fellow- 
workmen  were  unwilling  to  work  with  him, 
quorre.  Giblan  v.  National  Amalgamated 
Laborers'  Union  of  Great  Britain  and  Ire- 
land, 1  B.  R.  C.  528,  [1903]  2  K.  B.  600. 
Also  Reported  in  72  L.  J.  K.  B.  N.  S.  907, 
89  L.  T.  N.  S.  386,  19  Times  L.  R.  708. 

To  establisli  or  maintain  closed  shop. 
See  also  supra,   43. 

47.  The  mere  enforcement,  by  a  building 
trades  council  and  labor  unions  which  it 
represents  and  their  members,  of  a  rule  of 
the  union  that  members  will  not  work  with 
nonunion  men  or  handle  the  product  of 
their  labor,  by  calling  out  its  members  from 
a  plant  which  employs  nonunion  men,  and 
notifying  consumers  that  the  plant  is  un- 
fair, does  not  constitute  conspiracy  to  sub- 
ject the  business  of  such  plant  to  their  con- 
trol against  which  an  injunction  will  lie, 
and  the  motives  by  which  they  were  actuat- 
ed are  immaterial.  J.  F.  Parkinson  Co.  v. 
Building  Trades  Council,  21:  550,  98  Pac. 
1027,  154  Cal.  581. 

Strikes. 

Boycott  in  aid  of  strike,  see  supra,  25. 

Picketing  by  striking  employees,  see  infra, 

62-65. 
Punishment  for  violation   of   injunction   as 

to,  see  Contempt,  109. 
Damages  for,  see  Damages,  309. 
•     Injunction   against   strikes   or   strikers,   see 
Injunction,   131-137,  141-152,  157. 
See  also  supra,  41. 

48.  Employees  who  combine  to  quit  their 
employment   for     he   advancement   of   their 

^  interests    by    peaceable    and   lawful    means 

are  not  guilty  of  conspiracy,  although  the 
effect  may  be  to  injure  the  employer's  busi- 
ness. Karges  Furniture  Co.  v.  Amalgamated 
Woodworkers'  Local  Union  No.  131,  2:  788, 
75  N.  E.  877,  165  Ind.  421. 

49.  Employees  under  no  contractual  re- 
straint may  lawfully  combine  by  prear- 
rangement,  and  quit  their  employment  in  a 
body,  for  the  purpose  of  securing  some  le- 
Digest  1-52  Ii.R.A.(N.S.) 


gitimate  b:-nefit,  even  though  they  know- 
that  the  notion  will  be  attended  with  in- 
jury to  the  employer's  business,  provided 
the  strike  is  carried  on  in  a  lawful  niaiiiipr. 
Karges  Furniture  Co.  v.  Analganiated 
Uoodworkers'  Local  Union  No.  131,  2:  788. 
75  N.  E.  877,  165  Ind.  421. 

50.  That  a  few  nu-mbers  of  a  union  on  a 
strike  disregard  its  instructions,  and  in- 
timidate the  employees  of  their  former  em- 
ployer, does  not  cliarge  the  union  with  re- 
sponsibility for  their  acts.  Karges  Furni- 
ture Co.  V.  Amalgamated  Woodworkers' 
Local  Union  No.  131,  2:  788,  75  N.  E.  877, 
165   Ind.   421. 

51.  A  labor  union  has  a  right  to  strike 
against  the  recognition  in  a  shop  of  a  sys- 
tem of  piecework  which  allows  workers  to 
employ  helpers,  the  effect  of  which  is,  in 
times  of  slack  work,  to  deprive  those  not 
employing  helpers  of  continuous  work,  al- 
though success  may  result  in  throwing  out 
of  employment  those  who  have  been  em- 
ployed merely  at  will  as  helpers,  and  injure 
the  employer.  Minasian  v.  Osborne,  37: 
170,  96  N.  E.  1036,  210  Mass.  250. 

52.  The  presentation,  by  representatives 
of  a  labor  union,  to  a  concern  against  which 
a  strike  has  been  declared,  of  an  agreement 
for  signature  embodying  the  conditions  up- 
on which  union  men  will  re-enter  its  service, 
is  not  unlawful.  J.  F.  Parkinson  Co.  v. 
Building  Trades  Council,  21:  550,  98  Pac. 
1027,  154  Cal.  581. 

53.  The  members  of  a  labor  union  may, 
in  order  to  secure  for  themselves  the  work 
of  pointing  the  buildings  in  which  they  lay 
the  brick  and  stone,  strike  in  case  the  work 
is  given  to  others,  although  the  general  con- 
tractor can  employ  professional  pointers  to 
greater  advantage  to  do  the  work,  and  the 
success  of  the  strike  will  deprive  the  point- 
ers of  employment  at  their  trade.  Pickett 
v.  Walsh,  6:  1067,  78  N.  E.  753,  192  Mass. 
572.  (Annotated) 

54.  Members  of  a  labor  union  cannot  re- 
fuse to  work  on  other  jobs  of  a  contractor 
merely  because  he  is  employed  on  a  building 
the  owner  of  which  employs,  to  do  part  of 
his  work,  followers  of  a  trade  the  work  done 
by  which  the  union  is  trying  to  absorb  by 
refusing  to  do  any  work  on  buildings  where 
the  work  represented  by  such  trade  is  re- 
quired unless  such  work  is  given  to  them. 
Pickett  V.  Walsh,  6:  1067,  78  N.  E.  763,  192 
Mass.  572. 

55.  The  mere  fact  that  a  particular  la- 
bor union  has  adopted  rules  refusing  to 
work  on  buildings  where  a  certain  class  of 
work  is  given  to  others  than  members  of 
the  union  does  not  justify  a  decree  against 
its  members  in  a  suit  to  enjoin  a  strike, 
where  it  is  not  shown  to  have  taken  any 
part  in  the  strike.  Pickett  v.  Walsh,  6:  1067, 
78   N.  E.   753,   192   Mass.  572. 

56.  A  labor  union  cannot  escape  liability 
for  the  acts  of  its  members  which  are  the 
direct  result  of  a  strike  which  it  has  inau- 
gui-ated,  on  the  ground  that  its  ofTicers  ad- 
vised the  members  to  be  orderly  and  obey 


CONSTABLE— CX)NSTITUnONAL  LAW. 


529 


the  law.     Franklin   Union  No.  4  v.  People, 
4:  1.001,  77  N.  E.  176,  220  111.  355. 

57.  Demands  of  laborers  for  increased 
wages  and  that  wages  shall  be  paid  during 
working  hours  are  properly  enforced  by  a 
strike.  L.  D.  Willcutt  &  Sons  Co.  v.  Dris- 
coU,  23:  1236,  85  X.  E.  897.  200  Mass.  110. 

58.  A  combination  of  employees  to  com- 
pel the  employer  to  permit  representatives 
of  a  union  to  adjust  all  differences  between 
employer  and  employees,  and  to  enforce 
compliance  with  the  decision  by  a  strike  on 
the  part  of  all,  is  illegal.  Reynolds  v. 
Davis,  17:  162,  84  N.  E.  457,  198  Mass.  294. 

59.  Striking  members  of  a  labor  union 
have  no  right  to  use  argument  and  per- 
suasion to  prevent  other  laborers  from  tak- 
ing their  places,  for  the  purpose  of  injur- 
ing the  business  of  their  former  employers 
in  order  to  coerce  them  into  granting  the 
demands  of  the  union,  since  such  acts  are 
directed  to  an  unlawful  purpose.  Chicago 
Typographical  Union  No.  16  v.  Barnes, 
14:1018,  83  N.  E.  940,  232  111.  424. 

60.  The  deposition  of  a  foreman  who  is 
distasteful  to  some  of  the  employees  of  a 
shop,  merely  because  his  enforcement  of 
rules  is  too  rigid  to  please  them,  is  not  a 
legal  purpose  for  a  strike.  DeMinico  v. 
Craig,  42:  1048,  94  N.  E.  317,  207  Mass.  593. 

(Annotated) 

61.  The  employment  of  assault  and  du- 
ress by  members  of  labor  unions  in  further- 
ing a  strike  undertaken  against  the  repre- 
sentatives of  a  certain  line  of  business  in 
a  certain  city  to  enforce  demands  with  re- 
sp(  ct  to  wages,  time,  work,  apprentices,  etc., 
wi'I  not  be  regarded  as  within  the  terms  of 
a  statuts  making  it  illegal  to  combine  for 
the  purpose  of  "doing  harm  maliciously  for 
the  sake  of  the  harm  as  an  end  in  itself," 
so  as  to  make  illegal  the  whole  strike.  Iron 
Holders'  Union  No.  125  v.  Allis-Chalmers 
Co.  20:  315,  160  Fed.  45,  91  C.  C.  A.  631. 
Picketing  premises. 

Contempt  by  picketing,  see  Contempt,  46- 
49. 

Injunction  against,  see  Contempt,  108;  In- 
junction. 135,  148-152. 

Municipal  authority  to  prevent  picketing 
on  city  streets,  see  Municipal  Corpo- 
rations, 99. 

62.  Striking  employees  may  picket  their 
former  places  of  employment  to  prevent 
strike  breakers  from  taking  their  places  so 
long  as  they  do  not  resort  to  intimidation 
or  obstruct  public  thoroughfares.  Everett 
Waddev  Co.  v.  Richmond  Typograjiliical 
Union  No.  90,  5:  792,  53  S.  E.  273,  105  Va. 
188. 

63.  The  maintenance,  by  striking  em- 
ployees, of  pickets  to  take  the  names  of  per- 
sons remaining  at  work  for  their  former 
employer,  and  of  those  seeking  to  enter  his 
employment,  and  to  seek  by  peaceable 
means,  withov.t  intimidation,  to  persiinde 
them  to  join  the  strikers,  is  not  unlawful; 
nor  does  it  render  the  participating  persons 
guilty  of  a  conspiracy.  Karges  Furniture 
Co.  V.  Amalgamated  Woodworkers'  Local 
Union  No.  131,  2:  788,  75  N.  E.  877,  165  Ind. 
421. 

Digest   1-52  I..It.A.(N.S.) 


64.  The  acts  of  striking  members  of  a 
labor  union  in  picketing  the  premises  of 
their  former  employers,  and  in  the  use  of 
threats,  assaults,  and  otiier  acts  of  intimi- 
dation, for  the  purpose  of  preventing  others 
from  working  for  them,  cannot  be  justiiied 
on  the  ground  that  they  are  done,  in  the 
course  of  labor  competition  for  the  pro- 
motion of  the  welfare  of  union  laborers. 
Chicago  Typographical  Union  No.  16  v. 
Barnes,  14:  1018,  83  N.  E.  940,  232  111.  424. 

65.  Members  of  a  labor  union  have  no 
right  to  establish  a  peaceful  picket  line 
around  shops  of  their  former  employers  for 
the  purpose  of  inducing  or  soliciting  em- 
ployees to  leave  their  work,  since  this  is 
itself  an  act  of  intimidation  and  an  unwar- 
ranted interference  with  the  rights  of  the 
employer.  Chicago  Typographical  Union 
No.  16  V.  Barnes,  14:  1018,  83  N.  E.  940,232 
111.  424. 


CONSTABLE. 


Acceptance  of  part  of  claim  for  fees  as  an 

accord  and  satisfaction,  see  Accord  and 

Satisfaction,  7. 
Liability  for  killing  dog,  see  Animals,  41. 
Bond  of,  see  Bonds,  67,  68. 
Larceny  by,  see  Larceny,  24. 
Authority  of  constable  in  justice's  court  to 

levy  fi.  fa.  issued  by  superior  court,  see 

Levy  and  Seizure,  19. 
Right  to  reward,  see  Officers,  90;  Reward, 

1,2. 
Nature  of  office,  see  Officers,  90. 

1.  That  a  constable  has  not  given  the 
bond  required  by  statute  to  qualify  him  for 
serving  civil  process  does  not  disqualify  him 
for  serving  a  venire  for  the  summoning  of 
a  jury  in  a  criminal  case.  Com.  v.  Tucker, 
7:  1056,  76  N.  E.  127,  189  Mass.  457. 


CONSTITUTION. 


Of  baseball  league,  see  Association,  10. 

Of  benefit  society,  see  Benevolent  So- 
cieties,  III.;    Insurance,   93-114. 

Of  religious  society,  see  Religious  So- 
CIETIE.S,  II.  a. 

In  general,  see  Constitutional  Law. 


34 


CONSTITUTIONAL   LAV7. 

I.  In  general;   governmental   matters, 
1-149. 
a.  Adoption;     amendment;     con- 
stmction,   1—31. 

1.  In  general;  adoption,  1. 

2.  Amendments,  2—18. 

3.  Construction,   19-31. 

a.  In  general,    19—25. 

b.  Application    of   Feder- 

al      Constitution       to 
states,  26. 


ISO 


CONSTITUTIONAL  LAW. 


I.  a,  S — continued. 

c.  Self-executing      provi- 
sions, 27—31. 
"b.  Ex   post    facto   and   retrospec- 
tive laws,  32 — 4:8h. 

1.  Ex  post  facto  laws,  32—40. 

2,  Retrospective     laws,      4:1— 

48h. 

a.  In  general,  41—43. 

b.  Curative  acts,  44— 48b. 
e.  Vested  rights,    49— 70. 

d.  Delegation  of  powers,  71—124. 

1.  In  general,   71—70. 

2.  To  people,   77—86. 

a.  To  judiciary,   86—89. 

4.  To        local        authorities, 

boards,  and  commission- 
ers,  90-123. 

5.  Of  judicial  power,   124. 

e.  Separation    of    powers,     125— 

142. 

1.  In  general,  125—127. 

2.  Encroachment  on  judicial 

power,  128—142. 

3.  As  to   appointment   of  of- 

ficers. 

f.  Local    self-government,     143— 

149. 

g.  Functions  and  powers  of  state. 
h.  Abandonment  of  power. 

U.  Rights    of    persons    and    property, 
150-828. 
a.  Equal  protection  and  privileg- 
es;    abridging     immuni- 
ties and  privileges,  150— 
347. 

1.  In  general,    150—197. 

2.  As      to      nonresidents      or 

aliens ;     foreign    cor- 
porations ,    198—204. 

a.  Nonresidents,         198— 

202. 

b.  Aliens,  202a. 

c.  Foreign     corporations, 

203,  204. 

3.  As  to  corporations,  associ- 

ations, ,  and   carriers, 
205-220. 

a.  In   general,   205—207. 

b.  Railroad      companies; 

carriers,  208— 220. 

4.  As    to    taxes    and    assess- 

ments, 221—233. 

6.  As   to   regulation   of   busi- 

_ness;     license,     231— 
329a. 

a.  In  general,  234—291. 

b.  Sunday      laws,      292— 

297. 

c.  As  to  em,ployees,  298— 

329. 

d.  Regulating        rates , 

329a. 

6.  Attorney's       fees;       costs; 

penalties;  damages,  330— 
333. 

7.  Matters  of  practice. 

5.  Criminal     matters,     334— 

347. 
Digest  1-52  L.R.A.(N.S.) 


I  //. — continued. 

b.  Due  process  of  law  or  law  of 
the  land;  guaranty  of 
right  to  life,  liberty,  and 
property,    348—630. 

1.  In  general,  348—358. 

2.  As  to  property  rights  gen- 
erally, 359—400. 

a.  In   general,    359—399. 

b.  Eminent  domain,  400. 
8.  Taxation    and    public    im- 
provements, 401—415. 

4.  As  to  regulation  of  busi- 
ness; inspection;  li- 
cense; restrictions  on 
right  of  contract, 
416-514. 

a.  In   general,    416—452. 

b.  Restricting  right  of 
contract,  453— 
491. 

(1)  In  general,  453— 
466. 

(2)  With    employees, 
467-491. 

c.  Regulation     of     rates, 
492-498. 

d.  Regulation     of     sales, 
499-514. 

O.  As  to  use  or  enjoyment  of 
property,    515—531. 

0.  As     to     rights     in     office, 
531a— 533. 

7.  Remedies  and  procedure, 
534—626. 

a.  In  general,    534—573. 

b.  As  to  right  of  action  or 
defense,  574— 
581. 

(1)  Of  action,    574- 
577. 

(a)  In  general, 
574. 

(b)  A  g  ainst 
railroad 
e o  in  pa- 
nics or 
car  r  iers, 
5  7  5- 
577. 

(2)  Of  defense,  578- 
581. 

c.  Notice     and     hearing, 
582-614. 

d.  As    to    evidence;    wit- 
nesses,  615—626. 

8.  Criminal     matters,      627— 
630. 

C.  Police  power,   631— 750. 

1.  In  general,    631— 642a. 

2.  State    engaging    in    busi- 
ness. 

8.  As  to  use,  enjoyment,  and 
destruction    of    property, 
643-663. 
4i.  Restrictions  on   contracts, 
business,     and    occu- 
pations; health,  664— 
748. 
a.  In   general,    664—687. 


CONSTITUTIONAL  LAW. 


531 


11.  0,  4 — continued. 

b.  Particular  occupations 

and    business,     638— 
716. 

c.  Matters   hetiveen   mas- 

ter and  servant,  717— 

724:. 

d.  Regulation    of    manu- 

facture     and      sales, 
725-74:8. 
5.  As   to   vices;   crimes,    74:9, 
750.     . 

d.  Freedom  of  speech,  press,  and 

worship,    751—765. 

e.  Natural  rights;   implied  guar- 

anties. 

f.  Guaranties  of  justice. 

g.  Impairing    obligation    of    con- 

tracts,  766—818. 

1.  As  to  Hubject-matter,  766— 

804:. 

a.  In    general;    by    stat- 

utes or  ordi- 
nances, 766— 
800. 

(1)  Generally,  766- 

785. 

(2)  As    to    corporate 

rights,  prop- 
erty, and  '  lia- 
bilities, 786— 
80O. 

b.  By     change     of     deci- 

sions, 801—804. 

2.  As  to  remedies,  805—818. 
h.  Guaranty    of  republican   form 

of  government,  819—825. 
i.  Rights   of   assembly    and   peti- 
tion, 826-828. 

Who  may  question  constitutionality  of  stat- 
ute or  ordinance,  see  Action  ob  Suit, 
46-54 ;  Statutes,  28-34. 

Waiver  of  constitutional  question  by  appeal- 
ing to  intermediate  court,  see  Appeax 
AND  Error,  483. 

Review  of  determination  of  lower  court  that 
decision  of  constitutional  question  is 
necessary,  see  Appeal  and  Error,  484. 

Limiting  review  on  appeal  to  decision  of 
constitutional  question,  see  Appeal  and 
Error,  499. 

Raising  question  of  constitutionality  of  law 
for  first  time  on  appeal,  see  Appeal 
AND  Error,  739. 

Jurisdiction  of  United  States  Supreme  Court 
over  constitutional  questions,  see  Ap- 
peal AND  Error,  II.  a. 

Jurisdiction  of  state  courts  over  constitu- 
tional questions,  see  Appeal  and  Eb- 
BOB,  II.   c,   2. 

Statute  requiring  attorney  to  prosecute  dis- 
barment proceedings  without  fees,  see 
Attorneys,  51. 

As  to  regulation  of  carriers,  see  Cabbiebs, 
IV. 

Right  to  bear  arms,  see  Carrying  Welapons. 

As  to  civil  rights,  see  Civil  Rights. 

As  to  civil  service  laws,  see  Civil  Service. 

As  to  regulation  of  interstate  commerce,  see 
Commerce.  | 

As  to  confiscation,  see  Confiscation. 

Digest  1-52  ]1R.A.(N.S.) 


As  to  imprisonment  for  debt,  see  Contempt, 
110,  111;  Imprisonment  for  Debt. 

Constitutional  provision  as  to  issue  of  stock 
by  corporation,  see  Corporations,  212. 

Injunction  against  enforcement  of  state 
statute  alleged  to  violate  Federal  Con- 
stitution, see  Courts,  272,  284-286. 

Excessive  fines,  see  Ceiminal  Law,  249; 
Penalties,  2. 

Power  of  legislature  under  Constitution  to 
confer  upon  courts  power  to  suspend 
sentence  of  criminal,  see  Criminal 
Law,  280,  281. 

Cruel  and  unusual  punishment,  see  Crimi- 
nal Law,  IV.  b. 

As  to  voters  and  elections  generally,  see 
Elections. 

As  to  taking  property  for  public  use,  see 
Eminent  Domain. 

Presumption  as  to  constitutionality  of  stat- 
ute, see  Evidence,  84,  85. 

Rebuttal  of  presumption  of  constitutional- 
ity of  statute,  see  Evidence,  2049. 

Regulation  of  fishing,  see  Fisheries. 

Provision  requiring  sale  of  public  franchises 
to  highest  bidder,  see  Franchises,  1. 

Review  of,  on  habeas  corpus  proceedings,  see 
Habeas  Corpus,  26-29. 

Seizure  of  insurrectionists  by  militia,  see  In- 
surrection, 2. 

Power  of  legislature  to  provide  constructive 
service  of  notice  to  revive  lien  of  judg- 
ment, see  Judgment,  322. 

Requirement  of  full  faith  and  credit  to  judg- 
ment of  other  state,  see  Judgment,  IV. 
b. 

Right  to  trial  by  jury,  see  Jury,  I. 

Right  to  attack  constitutionality  of  statute 
in  mandamus  proceeding,  see  Man- 
damus, 128-134. 

Constitutionality  of  commission  form  of 
government,  see  Municipal  Corpora- 
tions, 11. 

As  to  appointment  and  election  of  officers, 
see  Officers,  I.  b. 

Increasing  or  reducing  officer's  com])en8a- 
tion  during  term,  see  Officers,  92-94. 

Determining  constitutionality  of  statute  on 
demurrer,  see  Pleading,  653. 

As  to  use  of  public  funds,  see  Public 
Moneys. 

Constitution  of  church,  see  Religious  So- 
cieties, 11.  a. 

Constitutionality  of  statutes  regulating 
schools,  generally,  see  Schools,  I.  a. 

As  to  search  and  seizure,  see  Search  and 
Seizure. 

As  to  enactment  of  statute,  see  Statxttes, 

I.  a. 

As  to  time  of  passage  and  taking  effect  of 
statute,  see  Statutes,  I.  b. 

Validity  of  statutes  generally,  see  Stat- 
utes, I.  c. 

Effect  of  partial  invalidity  of  statute,  see 
Statutes,  I.  c,  2. 

As  to  title  of  statutes,  see  Statutes,  I.  e. 

Matters  as  to  amendment,  repeal,  or  re- 
enactment  of  statute,  see  Statutes,  III. 

As  to  privilege  of  witness,  see  Witnesses, 

II.  c. 


532 


CONSTITUTIONAL  LAW,  I,  a,  1,  2. 


I.    In   general;   governmental   matters. 

a.  Adoption;  amendment;  construction. 

1.  In  general;  adoption. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  The  ordinance  of  1787  is  entirely 
superseded  by  the  Constitution  of  a  state 
created  out  of  the  territory  covered  by  the 
ordinance,  since  the  state,  upon  its  admis- 
sion into  the  Union,  becomes  a  sovereign 
state  with  full  and  complete  rights  of  sov- 
ereignty, and  as  free  from  the  operation  of 
the  articles  of  the  ordinance  of  1787  as  any 
of  the  original  states  parties  to  the  Fed- 
eral compact.  State  ex  rel.  Donahey  v.  Ed- 
mondson,  52:  305,  105  N,  E.  269,  89  Ohio 
St.  103.  (Annotated) 

2.  Amendments. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Review    of    legislative    action    as    to,    see 
Courts,  108,  109. 
*     Conclusiveness     on     courts     of     governor's 
proclamation       declaring       amendment 
adopted,  see  Courts,  109. 

Filling  office  created  by  amendment  at  elec- 
tion at  which  amendment  is  adopted,  see 
Officers,  23. 

See  also  infra,  130,  349,  821. 

2.  An  amendment  to  the  Constitution 
cannot  be  invalidated  because  it  does  not  ac- 
cord with  other  provisions  in  the  Constitu- 
tion. Hammond  v.  Clark,  38:  77,  71  S.  E. 
479,  136  Ga.  313: 

3.  A  constitutional  amendment  to 
validate  certain  unconstitutional  legislation 
is  not  insufficient  because  it  does  not  set 
out  in  full  the  statutes  to  be  validated,  and 
they  do  not  appear  in  full  in  the  statute 
providing  for  submission  of  the  amendment 
to  the  voters.  Hammond  v.  Clark,  38:  77, 
71  S.  E.  479,  136  Ga.  313. 

4.  The  guaranty  in  the  6th  Amend- 
ment of  the  Federal  Constitution  of  an  im- 
partial jury  has  no  application  to  trials  in 
a  state  court  for  violation  of  state  la\^a. 
State  V.  McDowell,  32:  414,  112  Pac.  521, 
61  Wash.  398. 

6.  A  requirement  that  a  published 
amendment  to  the  Constitution  shall  be  en- 
tered in  the  journals  of  the  legislature  does 
not  require  publication  of  the  journals  be- 
fore the  amendment  can  be  submitted  to  the 
people.  HamTnond  v.  Clark,  38:  77,  71  S.  E. 
479,  136  Ga.  313. 
Publication   of  proposed   amendment. 

6.  A  proclamation  by  the  governor  of 
a  proposed  submission  of  an  amendment  to 
the  Constitution  to  the  electors  is  suffi- 
cient, which  sets  out  the  statute  proposing 
the  amendment  and  declaring  when  the  sub- 
mission will  be  made.  Hammond  v.  Clark, 
38:  77,  71  S.  E.  479,  136  Ga.  313. 

7.  Where  an  amendment  to  the  Con- 
Digest  1-52  Ii.R.A.(N.S.) 


stitution  lias  been  proposed  by  the  legisla- 
ture in  tlie  manner  provided  by  that  in- 
strument, and  it  has  been  submitted  to  the 
voters  for  ratification  at  the  prescribed 
time  and  in  substantially  the  prescribed 
manner,  and  has  been  ratified  by  them, 
such  amendment  will  not  be  declared  void, 
even  if  it  should  appear  that  an  executive 
or  ministerial  officer  did  not  comply  strict- 
ly with  tlie  law  as  to  tlie  extent  of  publica- 
tion in  a  particular  newspaper.  Hammond 
V.  Clark,  38:  77,  71- S.  E.  479,  136  Ga.  313. 

8.  A  publication  once  each  week  dur- 
ing the  two  calendar  months  preceding  an 
election,  resulting  in  nine  insertions  in  all, 
complies  with  a  constitutional  requirement 
that  a  proposed  amendment  shall  be  pub- 
lished in  a  newspaper  in  each  district 
two  months  previous  to  holding  the  elec- 
tion. Hammond  v.  Clark,  38:  77,  71  S.  E. 
479,   136   Ga.  313. 

9.  That  a  proposed  constitutional 
amendment,  instead  of  being  published  in  a 
certain  county  for  three  months  immediate- 
ly preceding  the  election,  as  provided  by 
the  Constitution,  was  published  for  one  week 
less,  will  not  invalidate  the  amendment, 
since  a  substantial  compliance  with  the  con- 
stitutional requirement  is  sufficient.  State 
ex  rel.  Thom])son  v.  VVinnett,  10:  149,  110 
N.  W.  1113,  78  Neb.  379.  (Annotated) 
Form  of  submitting  amendments. 

10.  It  is  not  necessary  that  a  proposed 
constitutional  amendment  should  be  printed 
in  full  upon  the  official  ballot,  hut  it  is 
sufficient  if  enough  is  printed  upon  the  bal- 
lot to  identify  the  amendment  and  show  its 
character  and  purpose.  State  ex  rel. 
Thompson  v.  Winnett,  10:  149,  110  N.  W. 
1113,  78  Neb.  379. 

11.  Where  a  constitutional  amendment 
was  submitted  to  the  qualified  voters  of  the 
state  for  ratification  or  rejection,  the  fact 
that  in  one  county  the  printed  ballots  con- 
tained only  a  form  of  vote  for  ratification, 
and  no  form  for  voting  against  it,  will  not 
alone  cause  the  amendment,  after  ratifica- 
tion, to  be  declared  void.  Hammond  v. 
Clark,  38:  77,  71  S.  E.  479,  136  Ga.  313. 

12.  A  proposed  amendment  to  the  Con- 
stitution increasing  certain  salaries  as  to 
the  future,  and  ratifying  a  prior  increase 
by  the  legislature,  is  not  void  because  sub- 
mitted on  one  ballot,  under  a  Constitution 
providing  that,  when  more  than  one  amend- 
ment is  submitted  at  the  same  time,  they 
shall  be  so  submitted  as  to  enable  the 
voters  to  vote  on  each  amendment  sepa- 
rately. Hammond  v.  Clark,  38:  77,  71  S. 
E.  479,   136  Ga.  313. 

Vote    on   question   of  adopting. 

13.  It  is  within  the  power  of  the  legis- 
lature of  Nebraska  to  provide  for  the  count- 
ing of  straight  party  votes  in  favor  of  a 
proposed  constitutional  amendment  in- 
dorsed by  the  political  parties  of  the  state, 
and  made  a  part  of  their  ticket.  State  ex 
rel.  Thompson  v.  Winnett,  10:  149,  110  N. 
W.  1113,  78  Neb.  379. 

Majority  required  for  adoption  of. 

14.  A  majority  of  the  electors  voting 
upon    the   question    of   the   adoption    of   an 


CONSTITUTIONAL  LAW,  I.  a,  3. 


533 


aTnendment  to  the  Constitution  is  not  alone 
sufficient  to  ratify  it  where  the  Constitution 
provides  that  the  amendment  shall  become 
a  part  of  tiie  Constitution  if  a  majority  of 
the  electors  shall  ratify  it.  State  ex  rel. 
Blair  v.  Brooks,  22:  478,  99  Pac.  874,  17 
Wyo.  344.  (Annotated) 

Eifect  of;  repeal  of  existing  law^. 
As  to  self-exacting  provisions  generally,  see 
infra,  I,  a,  3,  c. 

15.  Pending  informations  are  not  affect- 
ed by  the  adoption  of  a  constitutional 
amendment  providing  that  no  person  shall 
be  charged  with  the  commission  of  any 
crime  except  upon  indictment  found  by  the 
grand  jury.  State  v.  Ross,  42:  601,  104  Pac. 
596,   106  Pac.   1022,  55  Or.  450,  474. 

10.  Where  the  legislature  has  exercised 
control  over  the  police  of  a  municipal  cor- 
poiation,  the  further  right  to  do  so  is  v. A 
denied  by  the  adoption  of  a  constitutional 
provision  that  it  sliall  continue  to  exercise 
the  powers  it  has  hitherto  exercised.  Hor- 
ton  v.  Newport,  i:  512,  61  Atl.  759,  27  R.  I. 
283. 

17.  The  amendment  of  the  Constitution 
of  the  state  of  Kansas,  prohibiting  the  man- 
ufacture and  sale  of  intoxicating  liquors  ex- 
cept for  medical,  scientific,  and  mechanical 
purposes,  affected  only  the  power  of  the  legis- 
lature to  tolerate  and  did  not  abridge  its 
power  further  to  restrain  or  prohibit  the 
liquor  traffic.  State  v,  Durein,  15:  908,  78 
Pac.  152,  70  Kan.  1. 

18.  A  constitutional  amendment  author- 
izing the  legislature  to  fix  the  hours  of  la- 
bor upon  public  work  controls  former  pro- 
visions of  the  instrument,  which  had  been 
held  by  the  courts  to  preclude  such  legisla- 
tion. People  ex  rel.  Williams  Engineering 
&  C.  Co.  V.  Metz,  24:  201,  85  N.  E.  1070,  193 
N.  Y.  148. 

3.   Construction. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Federal  courts  following  state  decisions  as 
to  construction  of  Constitution,  see 
Courts,  325. 

Presumption  as  to  construction  of  constitu- 
tional provision  adopted  from  other 
state,  see  Evidence,  83. 

Of  provision  abrogating  fellow-servant  rule, 
see  Master  and  Sebvant,  752,  780. 

Of  terms  of  Constitution  providing  for  col- 
lection of  taxes,  see  Statutes,  210. 

Of  constitutional  provision  against  private 
ownership  of  tide  lands,  see  Watebs, 
77,  78. 

See  also  infra,  348. 

19.  The  readoption  of  a  constitutional 
provision  carries  with  it  the  construction 
which  has  been  placed  upon  it  by  the  legis- 
lature. Bullitt  v.  Sturgeon,  14:268,  105  S. 
W.  468,  127  Ky.  332. 

20.  The  readoption  of  a  constitutional 
provision  includes  a  judicial  construction 
Digest   1-52  I..R.A.(N.S.) 


which  has  been  given  to  it.  Sexauer  v.  Star 
Milling  Co.  26:  609,  90  N.  E.  474,  173  Ind. 
342. 

21.  Article  3  of  Minnesota  Constitution, 
providing  that  the  powers  of  government 
shall  be  divided  into  executive,  legislative, 
and  judicial,  etc.,  does  not  apply  to  munici- 
pal governments;  and  neither  its  expressed 
intent  nor  its  spirit  can  be  read  into  Const. 
art.  4,  §  36,  so  as  to  extend  the  limitation 
imposed  by  the  latter  on  the  form  of  munic- 
ipal government,  and  thereby  make  it  co- 
extensive with  the  limitation  imposed  by 
the  former  upon  the  form  of  state  govern- 
ment. State  ex  rel.  Simpson  v.  Mankato, 
41:  III,  136  N.  W.  264,  117  Minn.  458. 

22.  "May"  is  not  to  be  construed  as 
"shall"  in  a  constitutional  provision,  unless 
from  the  whole  context  the  purpose  plainly 
appears  that  it  shall  be  mandatory.  State 
ex  rel.  Greaves  v.  Henry,  5:  340,  40  So.  1.52, 
87  Miss.  125.  (Annotated) 

23.  The  legislature  may  lease  farms  on 
which  to  work  convicts,  under  a  constitu- 
tional provision  that  it  may  place  convicts 
on  state  farms,  and  "may  buy  farms  for 
that  purpose."  State  ex  rel.  Greaves  v. 
Henry,  5:  340,  40  So.  152,  87  Miss.  125. 

24.  The  purchase  of  farms  for  the  work- 
ing of  state  convicts  is  not  required  by  a 
constitutional  provision  that  the  legislature 
may  place  the  convicts  on  a  state  farm,  and 
"may  buy  farms  for  that  purpose."  State 
ex  rel.  Greaves  v.  Henry,  5:  340,  40  So.  152, 
87   Miss.    125. 

25.  A  constitutional  prohibition  of  dam- 
aging private  property  for  public  use  with- 
out compensation  applies  to  work  done  after 
the  provision  takes  effect,  under  ordinances 
passed  before  that  time.  Swift  &  Co.  v. 
Newport  News,  3:404,  52  S.  J-.  821,  105  Va. 
108.  (Annotated) 

b.  Application  of  Federal  Constitution 
to  states. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

26.  The  Federal  constitutional  provision 
that  no  person  shall  be  twice  put  in 
jeopardy  for  the  same  offense,  nor  be  de- 
prived of  life,  liberty,  or  property  without 
due  process  of  law,  constitutes  a  limitation 
upon  the  power  of  the  Federal  government, 
and  not  upon  the  individual  states.  Brant- 
ley V.  State,  22:  959,  64  S.  E.  676,  132  Ga. 
573. 

c.  Self -executing  provisions. 

(See   also    same   heading   in   Digest   L.R.A. 
1-70.) 

See  also  supra,  15-18. 

27.  The  provisions  of  the  18th  article 
of  the  Ohio  Constitution,  as  amended  in  Sep- 
tember, 1912,  providing  for  home  rule  for 
cities,  are  not  self-executing,  but  continued 
in  force  the  general  laws  for  the  govern- j 
ment  of  cities  and  villages  until  the   15thi 


534 


CONSTITUTIONAL  LAW,  I.  b,  1. 


of  November  following,  and  theseafter  until 
changed  by  the  enactment  of  general  laws 
for  their  amendment,  or  by  additional  laws 
to  be  ratified  by  the  electors  of  the  munici- 
pality to  be  affected  thereby,  or  by  the 
adoption  of  a  charter  by  the  electors  of  a 
municipality  in  the  mode  pointed  otot  in  the 
article.  State  ex  rel.  Toledo  v.  Lynch,  48: 
720,  102  N.  E.  670,  88  Ohio  St.  71. 

28.  The  constitutional  provision  enti- 
tling every  man  to  a  certain  remedy  for  all 
injuries  or  wrongs  received  in  his  person, 
property,  or  character  is  not  self-executing. 
Henry  v.  Cherry,  24:  991,  73  Atl.  97,  30  R. 
I.  13. 

29.  A  constitutional  provision  prohib- 
iting marriages  between  white  persons  and 
persons  having  one  eighth,  or  more,  negro 
blood,  is  self-acting,  in  the  absence  of  any 
other  provision  in  the  same  instrument,  lim- 
iting its  operation.  Succession  of  Gabisso, 
11:  1082,    44    So.   438,    119   La.   704. 

As  to  matters  of  eminent  domain. 

30.  A  constitutional  provision  that  pri- 
vate property  shall  not  be  damaged  for  pub- 
lic use  without  compensation  is  self-ex- 
ecuting, and  the  common  law  will  furnish 
an  appropriate  remedy  in  the  absence  of 
one  expressly  given  by  Constitution  or 
statute.  Swift  &  Co.  v.  Newport  News, 
3:  404,  52  S.  E.  821,  105  Va.  108. 

As   to   corporations. 

31.  A  constitutional  provision  imposing 
a  liability  on  stockholders  of  a  corpora- 
tion for  its  debts  is  self -executing,  and  ex- 
ists independent  of  the  legislature,  which 
may  regulate  the  procedure  for  its  enforce- 
ment; but  it  cannot  destroy  the  right  to 
have  the  liability  enforced.  Way  v.  Bar- 
ney, 38:  648,  133  N.  W.  801,  116  Minn.  285. 

6.  Ex  post  facto  and  retrospective  laves. 

1.  Ex  post  facto  laws. 

(See  also   same   heading   in  Digest  L.R.A. 
1-70.) 

32.  A  statute  passed  after  the  commis- 
sion of  a  crime,  reducing  the  number  of 
judges  who  shall  preside  at  the  trial,  is  not 
invalid  as  an  ex  post  facto  law.  Com.  v. 
Phelps,  37:  567,  96  N.  E.  349,  210  Mass.  78. 

33.  The  repeal,  after  the  commission  of 
an  alleged  forgery,  of  a  statute  which  pre- 
vents the  use  against  accused  of  any  dis- 
covery or  evidence  obtained  from  him  by 
means  of  any  judicial  proceeding,  so  as  to 
permit  the  use  against  him  of  the  paper 
alleged  to  have  been  forged,  which  was 
originally  exhibited  by  him  in  an  equity 
suit,  and  of  his  testimony  in  that  suit,  is 
ex  post  fiwto  and  invalid,  where  the  crime 
could  not  have  been  established  without  the 
aid  of  the  record  in  the  other  suit.  Frisby 
v.  United  States,  37:  96,  38  App.  D.  C.  22. 

34.  A  law  curtailing  the  number  of  per- 
emptory challenges  which  a  defendant  may 
have  in  the  impaneling  of  a  trial  jury, 
enacted  after  the  commission  of  the  offense 
charged,  is  not  ex  post  facto  as  to  such 
Digest  1-52  KR.A.(N.S.) 


offense.     Harris   v.   United   States,   31:820, 
111   Pac.  982,  4  Okla.   Grim.  Rep.  317. 

(Annotated) 

35.  An  amendatory  act  increasing,'  the 
penalty  of  a  bond  essential  to  the  suspen- 
sion of  sentence  in  a  prosecution  a<,'alnst 
a  husband  for  abandonment  is  ex  post  facto 
as  to  prior  offenses.  State  v.  McCoy,  28: 
583,  127  N.  W.  137,  87  Neb.  385. 

36.  A  state  statute  which  attempts  to 
deprive  one  who  has  committed  an  offense 
under  the  territorial  government,  of  his- 
right  to  be  accused  by  indictment  of  a 
grand  jury,  is  ex  posf  facto  and  invalid. 
Garnsey  v.  State,  38:  600,  112  Pac.  24,  4 
Okla.   Crim.   Rep.   547.  (Annotated) 

37.  A  statute  providing  that  a  person 
acquitted  of  a  criminal  charge  on  the 
ground  that  he  was  insane  when  the  of- 
fense was  committed,  shall  be  committed  to 
the  asylum  for  the  dangerous  insane,  and 
shall  not  be  liberated  therefrom  except  as 
prescribed  in  the  act,  is  not  ex  post  facto 
as  to  a  person  tried  and  acquitted  on  that 
ground  after  the  statute  was  enacted  for 
an  offense  committed  before  its  passage. 
Re  Clark,  39:  680,  121  Pac.  492,  86  Kan. 
539. 

Extent  or  severity  of  pnnishment. 

38.  The  act  of  the  legislature,  providing 
that,  upon  a  second  conviction  for  a  viola- 
tion of  the  prohibitory  liquor  law,  a  higher 
punishment  shall  be  inflicted,  is  a  reason- 
able classification,  which  the  legislature  ha» 
the  power  to  make,  and  is  not  an  ear  post 
facto  law,  although  by  its  terms  it  may  be 
enforced  against  one  whose  former  convic- 
tion occurred  before  its  passage.  Jones  v. 
State,  48:  204,  133  Pac.  249,  9  Okla.  Crim. 
Rep.  646.  (Annotated) 

39.  A  statute  prescribing  that  the  pun- 
ishment of  death  must  be  inflicted  by  elec- 
trocution, instead  of  giving  the  court  a  dis- 
cretion as  to  whether  the  punishment  should 
be  inflicted  by  hanging  or  by  electrocution, 
and  substituting  the  penitentiary  for  the 
county  jail  as  a  place  where  a  judgment 
of  death  must  be  executed,  and  requiring  the 
court  to  appoint  a  day  for  the  execution  not 
less  than  sixty,  and  not  more  than  ninety 
days  from  the  time  of  the  judgment,  instead 
of  thirty  and  sixty  days  as  fixed  by  the 
former  statute,  is  not  an  increase  of  pun- 
ishment nor  an  ex  post  facto  law  as  applied 
to  a  person  convicted  of  murder  committed 
before  its  enactment,  especially  where  an 
appeal  is  pending  from  the  judgment  at  the 
time  act  takes  effect.  Alberty  v.  State,  52: 
248,  140  Pac.  1025,  10  Okla.  Crim.  Rep.  616. 

40.  Where  a  statute  prescribes  the 
qualifications  of  a  physician,  and  proscribes 
the  grossly  immoral,  and  authorizes 
the  cancelation  of  any  certificate  issued  to 
such  persons,  the  application  of  this  law  to 
one  whose  habits  were  grossly  immoral  be- 
fore the  passage  of  the  law  is  not  in  the 
nature  of  a  punishment,  and  therefore  the 
statute  is  not  ex  post  facto,  but  has  in  view 
only  the  qualifications  of  the  pliysician  and 
the  protection  of  public  morals.  MefTert  v. 
Packer,    1:811,   72   Pac.   247,   66   Kan.   710, 


CONSTITUTIONAL  LAW,  I.  b,  2. 


535 


affirmed  in  25  Sup.  Ct.  Rep.  790,  195  U.  S. 
625,  49  L.  ed.  350. 

2.  Retrospective  laws, 

a.  In  general. 

(See   also   same   heading   in   Digest  L.R.A. 

1-10.) 

Change  in  statute  of  limitations,  see  Limi- 
tation OF  Actions,  I.  a. 

As  to  when  statutes  are  retrospective,  see 
Statutes,  II.  d. 

41.  Constitutional  provisions  prescribing 
the  manner  in  which  a  municipal  corpora- 
tion may  enter  into  a  contract,  and  its 
duration,  and  prohibiting  it  from  incurring 
indebtedness,  do  not,  under  the  provisions 
of  the  Federal  Constitution,  forbidding 
states  to  impair  the  obligation  of  con- 
tracts, control  a  renewal  in  accordance  with 
its  own  provisions  of  a  contract  existing  at 
the  time  they  were  adopted.  Slade  v.  Lex- 
ington, 32:  201,  132  S.  W.  404,  141  Ky.  214. 

42.  A  provision  in  a  statute  of  limita- 
tions that  it  shall  not  affect  pending  actions 
is  nugatory,  since  the  legislature  has  no 
right  to  interfere  with  rights  of  action  after 
suit  has  been  brought  on  them.  Slover  v. 
Union  Bank,  i:  528,  89  S.  W.  399,  115  Tenn. 
347.  (Annotated) 

43.  A  statute  denying  the  right  to  re- 
move causes  from  state  to  Federal  courts 
may  be  made  to  apply  to  rights  of  action 
which  have  already  arisen.  Teel  v.  Chesa- 
peake &  0.  R.  Co.  47:  21,  204  Fed.  918,  123 
C.  C.  A.  240. 

b.  Curative  acts. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Imparing  contract  obligations  generally,  see 

infra,  11.  g. 
Legalizing  drainage  proceedings,  see  Drains 

AND  Sewebs,  4,  5. 
Special    act   validating    city    election,    see 

Statutes,  176. 
Special    act    legalizing    school    bonds,    see 

Statutes,  178. 
See  also  supra,  3,  12;  infra,  130,  821. 

44.  A  curative  act  providing  that  the 
action  of  all  cities  that  have  adopted  the 
commission  form  of  government  at  an  elec- 
tion by  popular  vote  in  pursuance  of  a 
statute  providing  a  scheme  therefor  shall 
be,  after  the  passage  of  such  curative  act, 
ratified  and  legalized  regardless  of  any  ir- 
regularities that  may  have  occurred  in  such 
election,  legalizes  all  city  elections  previous- 
ly held  for  such  purpose  at  which  a  ma- 
jority of  the  votes  cast  were  in  favor  of  such 
proposition.  Cole  v.  Dorr,  22:  534,  101  Pac. 
1016,  80  Kan.  251. 

45.  A  state  legislature  has  power  to  pass 
a  curative  act  validating  a  petition  for 
street  paving  already  on  file,  but  void  be- 
cause of  specifying  the  brand  of  material 
Digest  1-52  I..R.A.(N.S.) 


to  be  used,  notwithstanding  it  affects  only 
a  single  city,  as  being  within  a  certain  class 
of  cities  as  existing  at  time  of  statute;  and 
chapter  91,  Kan.  Law  1911,  prescribing  what 
such  petitions  shall  and  shall  not  set  forth, 
and  providing  that  nothing  therein  con- 
tained shall  be  held  to  invalidate  any  peti- 
tion theretofore  ordered  spread  upon  the 
journal  in  the  manner  provided  by  law,  and 
expressly  providing  that  "all  such  petitions 
shall  be  held  valid,"  validates  such  a  peti- 
tion. Pollock  V.  Kansas  City,  42:  465,  123 
Pac.  985,  87  Kan.  205.  (Annotated) 

45a.  A  constitutional  amendment  ratify- 
ing an  unconstitutional  act  increasing 
judges'  salaries,  which  were  paid  by  war- 
rants indorsed  by  them,  does  not  violate 
the  provision  of  the  Federal  Constitution 
against  impairing  the  obligation  of  con- 
tracts, on  the  theory  that  the  indorsement 
was  a  contract  to  return  the  salary  in  case 
the  statute  authorizing  it  shall  be  held  to 
be  invalid.  Hammond  v.  Clark,  38:  77, 
71  S.  E.  479,  136  Ga.  313. 

46.  A  foreclosure  of  a  mortgage  invalid 
because  of  defect  in  the  acknowledgment  of 
an  assignment  of  the  mortgage  cannot  be 
cured  by  a  subsequent  statute.  Kenny  v. 
McKenzie,  49:  775,  120  N.  W.  781,  23  S. 
D.  111. 

47.  A  curative  act  purporting  to  vali- 
date all  proceedings  prosecuted  to  judg- 
ment under  a  statute  permitting  a  county 
court  to  vest  the  fee  to  a  homestead  in  the 
surviving  spouse  upon  payment  by  her  to 
the  heirs  of  the  proportionate  share  de- 
scending to  them,  before  such  statute  wa» 
held  unconstitutional  and  void,  contravenes 
the  constitutional  provision  that  no  person 
shall  be  deprived  of  his  property  without 
due  process  of  law,  where  a  statute  enacted 
prior  to  the  act  attempting  to  confer  pow- 
er upon  the  county  court,  and  which  was 
not  repealed  or  amended  thereby,  provided' 
that  the  surviving  spouse  should  have  but 
a  life  estate  in  the  homestead,  with  re- 
mainder to  the  heirs.  Draper  v.  Clayton, 
29:  153,  127  N.  W>  369,  87  Neb.  443. 
AcknoTrledgments. 

Due  process  as  to,  see  infra,  388,  389. 

See  also  infra,  54;   Acknowledgment,  IV. 

48.  The  legislature  may  validate  the  ac- 
knowledgment of  an  existing  deed  which 
was  taken  by  a  proper  officer,  but  was  lack- 
ing in  certain  formal  matters  required  by 
statute,  so  as  to  render  the  deed  effectual 
against  the  grantor,  without  unconstitu- 
tionally impairing  the  obligation  of  a  con- 
tract. Eckles  V.  Wood,  34:  832,  136  S.  W. 
907,  143  Ky.  451. 

48a.  A  statute  validating  an  informal  ac- 
knowledgment to  a  deed,  so  as  to  render  the 
instrument  binding  on  the  grantor,  is  not 
an  ex  post  facto  law.  Eckles  v.  Wood,  34: 
832,  136  S.  W.  907,  143  Ky.  451. 

48b.  No  obligation  of  contract  is  im- 
paired by  a  statute  giving  effect  to  a  de- 
fectively acknowledged  deed  which  has  been 
on  record  ten  years,  so  far  as  it  applies 
to  one  who  purchased  the  property  from 
the  grantor's  heirs  fifty  years  after  the 
execution  of  the  deed,  with  full  knowledge 


636 


CONSTITUTIONAL  LAW,  I.  c. 


of   the   facts.     Downs  v.   Blount,   31:  1076, 
170  Fed,  15,  95  C.  C.  A.  289.       (Annotated) 

c.  Vested  rights. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  impairing  obligation  of  contracts,  see 
infra,  II.  g. 

Change  of  by-law  impairing  vested  right  of 
member  of  benevolent  society,  see  Be- 
nevolent Societies,  11. 

Interference  with  vested  right  by  ordinance 
segregating  races,  see  Civil  Rights,  9. 

Repeal  of  statute  making  rents,  profits,  and 
proceeds  of  separate  property  during 
marriage  common  property,  see  Hus- 
band AND  Wife,  71. 

In  rule  of  common  law,  see  Commebce,  58. 

In  rule  of  practice  as  to  new  trial,  see  New 
Trial,  14. 

In  practice  of  medicine,  see  Physicians 
AND  Surgeons,  2. 

To  use  of  water,  see  Waters,  184. 

Retrospective  effect  of  statute  extending 
right  of  appeal,  see  Statutes,  295. 

See  also  infra,  382. 

49.  A  person  who  is  not  a  party  or  privy 
to  an  action  cannot  have  a  vested  right  in 
an  erroneous  decision  made  therein.  Crig- 
ler  V.  Sliepler,  23:  500,  101  Pac.  619,  79  Kan. 
834. 

50.  An  owner  of  property  has  no  vested 
or  constitutional  right  to  use  it,  or  allow 
the  use  of  it,  for  purposes  injurious  to  the 
public  health  or  morals,  and  if  he  has 
Knowledge  or  notice  in  the  premises,  he 
cannot  complain  if  loss  ensues,  when  the 
law  deals  therewith  in  any  way  reasonably 
necessary  for  the  suppression  of  the  evil  in 
connection  with  which  it  was  used.  State 
ex  rel.  Robertson  v.  Lane,  52:  932,  147  N. 
W.  951,  126  Minn.  78. 

51.  An  owner  of  personal  property  cov- 
ered by  a  contract  of  conditional  sale  execu- 
ted prior  to  the  enactment  of  Laws  1913, 
chap.  562  (Gen.  Stat.  1913,  §§  8717-8726), 
forfeiting  property  used  in  connection  with 
a  bawdyhouse,  has  no  vested  right,  con- 
tractual or  otherwise,  to  allow  it  to  be 
used  in  connection  with  the  maintenance  of 
a  bawdyhouse  after  the  passage  of  the  act, 
€ven  if  prior  thereto  such  sale  and  use  were 
not  unlawful.  State  ex  rel.  Robertson  v. 
Lane,  52:  932,  147  N.  W.  951,  126  Minn.  78. 

52.  The  water  of  a  navigable  lake  can- 
not be  withdrawn  below  the  original  low- 
water  mark  for  irrigation  purposes,  to  the 
injury  of  a  riparian  owner  who  acquired  his 
rights  prior  to  the  adoption  of  the  consti- 
tutional provision  vesting  title  to  the  nav- 
igable waters  in  the  state.  Madson  v. 
Spokane  Valley  Land  &  Water  Co.  6:  257, 
82  Pac.  718,  40  Wash.  414.  (Annotated) 

53.  A  legislative  attempt,  in  authorizing 
the  appropriation  of  water  for  municipal 
uses,  to  limit  the  right  to  compensation  to 
those  only  whose  rights  in  the  water  vested 
prior  to  the  passage  of  the  statute,  impairs 
the  constitutional  propertv  rights  which  vest 
Digest   1-52  L.R.A.(N.S.) 


after  such  passage,  but  prior  to  the  institu- 
tion of  the  appropriation  proceedings. 
Sterling  v.  Pawnee  Ditch  Extension  Co.  15: 
238,  !)4   Pac.  339.  42  Colo.  421. 

54.  One  who  purcliases  real  estate  from 
the  lieirs  of  :\  grantor  vvliose  deed  was  de- 
fectively acknowledged,  at  a  time  when  liti- 
gation concerning  tlie  title  is  pending,  ac- 
quires no  vested  right  to  the  property 
which  cannot  be  affected  by  legislation  cur- 
ing the  defective  acknowledgment.  Downs 
V.  Blount,  31:  1076,  170  Fed.  15,  95  C.  C. 
A.  289. 

55.  An  act  of  the  legislature,  which  post- 
pones an  existing  valid  mortgage  lien,  and 
makes  a  subsequently  created  lien  superior 
to  the  mortgage  lien,  is  a  law  impairing 
vested  property  rights  and  impairing  the 
obligations  of  a  contract,  and  is  void  for 
conflict  with  the  Constitution  of  the  United 
States.  National  Bank  of  Commerce  v. 
Jones,  12:  310,  91  Pac.  191.  18  Okla.  555. 

56.  A  husband  had  no  vested  right  in 
the  community  property  acquired  prior  to 
the  passage  of  N.  M.  Laws  1901,  cliap.  62.  § 
6  (a),  of  which  he  would  be  deprived  by 
applying  to  such  property  the  provision 
of  that  section  that  neither  husband  nor 
wife  shall  dispose  of  real  estate  acquired 
during  coverture  by  onerous  title  unless 
both  join  in  the  execution  of  the  deed. 
Arnett  v.  Reade,  36:  1040,  31  Sup.  Ct.  Rep. 
425,  220  U.  S.  311,  55  L.  ed.  477. 

(Annotated) 

57.  A  statute  abolishing  the  distinction 
between  actions  at  law  and  in  equity,  and 
establishing  a  single  form  of  action,  violates 
no  constitutional  or  vested  right  of  suitors. 
Kenny  v.  McKenzie,  49:  775,  127  N.  W.  597, 
25  S.  D.  485. 

In  fireman's  pension. 

58.  A  member  of  a  fire  department  relief 
association,  an  organization  formed  under 
the  general  laws  of  the  state  for  the  relief 
of  disabled  members  of  a  city  fire  depart- 
ment, who  contributes  annual  dues  to  the 
relief  fund,  and  who  is  determined  by  the 
association  to  be  disabled  within  the  mean- 
ing of  its  constitution  and  by-laws,  and  is 
granted  a  pension  as  therein  provided,  has 
a  vested  legal  right  in  such  pension  of 
which  he  cannot  be  deprived  except  by  due 
process  of  law;  namely,  by  notice  and  op- 
portunity to  be  heard  in  any  proceedings 
had  by  the  association  for  the  purpose  of 
terminating  the  payment  of  such  pension. 
Stevens  v.  Minneapolis  Fire  Depart.  Relief 
Asso.  50:  1018,  145  N.  W.  35,  124  Minn.  381. 

(Annotated) 
To  cnvey  homestead. 

59.  The  legislature  may  take  away  the 
right  of  a  man  to  convey  an  existing  home- 
stead without  the  assent  of  his  wife,  with- 
out impairing  any  of  his  constitutional 
property  rights,  since  the  homestead  is  a 
mere  exemption  privilege  which  the  legis- 
lature may  take  away  or  alter  at  pleasure; 
and  it  is  immaterial  that  the  land  to  which 
the  homestead  is  attached  was  owned  by 
the  man  in  absolute  right  before  his  mar- 
riage and  the  passage  of  the  homestead 
law,   if  he   dedicated  it   to   homestead   pur- 


CONSTITUTIONAL  LAW,  I.  d,  1. 


537 


poses  in  accordance  with  the  provisions  of 
the  statute,  by  occupying  it  as  such.  Bush- 
nell  V.  Loomis,  36: "1029,  137  S.  W.  257, 
234  Mo.  37 L  (Annotated) 

Rights  in  reversion  or  remainder. 

60.  The  rights  of  a  reversioner  who  has 
cut  out  an  intermediate  contingent  remain- 
der by  tlie  purchase  of  the  life  estate  can- 
not be  affected  by  a  subsequent  statute  en- 
acted to  preserve  the  rights  of  remainder- 
men. McCreary  v.  Coggeshall,  7:  433,  53  S. 
E.   978,   74   S.    C.   42. 

61.  The  legislature  may  validate  the  cut- 
ting off  of  contingent  remainders  created  by 
will  in  favor  of  persons  yet  unborn  by  pro- 
ceedings in  which  all  living  persons  inter- 
ested had  been  made  parties.  Anderson  v. 
Wilkins,  9:  1145,  55  S.  E.  272,  142  N.  C.  154. 
In  insurance  policy. 

See  also  infra,  799. 

62.  A  statute  which  operates  to  deprive 
the  insured  of  his  absolute  power  of  dis- 
position and  control  of  an  insurance  policy 
on  his  life  is,  so  far  as  it  applies  to  insur- 
ance existing  at  the  time  of  its  passage,  un- 
constitutional as  depriving  the  insured  of 
a  vested  property  right.  Boehmer  v.  Kalk, 
49:  487,  144  N.  W.  182,  155  Wis.  156. 

( Annotated ) 

63.  The  rights  of  a  married  woman  in  a 
paid-up  insurance  policy  in  her  favor  on 
her  husband's  life  cannot  be  impaired  by  a 
subsequent  statute  authorizing  the  designa- 
tion of  a  new  beneficiary  by  the  husband  in 
case  of  the  divorcement  of  the  wife.  Blum 
v.  New  York  L.  Ins.  Co.  8:  923,  95  S.  W. 
317,  197  Mo.  513.  (Annotated) 
In  license. 

64.  One  whose  license  as  a  pharmacist 
has  been  renewed  from  year  to  year  by  the 
state  board  of  pharmacy  does  not  acquire  a 
vested  right  to  continue  in  that  occupation, 
and  to  have  his  license  renewed  upon  pay- 
ment of  the  fee,  without  further  examination 
by  the  board.  State  v.  Hovorka,  8:  1272, 
110  N.  W.  870,  100  Minn.  249.  (Annotated) 
Statute  of  limitations. 

Impairing  obligation  of  contracts  as  to,  see 
infra,  816. 

65.  The  legislature  may  take  away  from 
a  municipality  the  rigRt  to  plead  the  stat- 
ute of  limitations  as  a  basis  for  title  to  a 
public  street,  even  after  the  limitation 
period  has  run.  State  v.  Seattle,  27:  1188, 
107  Pac.  827,  57  Wash.  602..  (Annotated.) 
Exemption  from  jury  duty. 

■  66.  The  statutory  exemption  from  jury 
duty  for  services  rendered  as  a  fireman  is 
not  a  vested  right,  but  is  subject  to  repeal 
at  the  pleasure  of  the  legislature.  State  v. 
Cantwell,  8:  498,  55  S.  £."^820,  142  N.  C.  604. 

(Annotated) 

67.  Although  a  statutory  exemption  from 
jury  duty  in  a  statute  incorporating  a  fire 
company  be  regarded  as  a  contract,  it  is  not 
irrevocable^  where  the  Constitution  provides 
that  all  general  or  special  laws  passed  for 
the  formation  of  corporations  may  be  altered 
from  time  to  time  or  repealed.  State  v. 
Cantwell,  8:  498,  55  S.  E.  820,  142  N.  C.  604. 
As  to  matters  of  taxation. 

68.  A  taxpayer  has  no  vested  right  of  im- 
Digest  1-52  Ii.R.A.(N.S.) 


munity  from  additional  taxation,  by  the  fact 
that  in  providing  for  a  public  improvement 
the  legislature  placed  one  half  the  burden  on 
the  property  immediately  benelited  and  the 
other  on  the  entire  county,  so  as  to  jjrevent 
subsequent  legislation  placing  the  entire  bur- 
den on  the  county.  Durrett  v.  Davison,  8: 
546,  93  S.  W.  25,  122  Ky.  851.     (Annotated) 

69.  The  legislature  cannot  constitution- 
ally apply  to  tax  sales  already  made  a  law 
changing  the  time  for  redemption  from  a 
certain  number  of  days  after  notice  by  the 
purchaser  of  intention  to  apply  for  a  deed, 
to  a  fixed  period.  Johnson  v.  Tavlor,  10: 
8i8,  88  Pac.  903,  150  Cal.  201.     (Annotated) 

70.  A  statute  imposing  an  inheritance 
tax  on  successions  for  the  support  of  public 
schools,  in  compliance  with  the  constitution- 
al direction,  is  not  objectionable  as  retroac- 
tive legislation  devesting  vested  rights,  as 
to  successions  opened  but  not  settled  at  the 
time  the  law  took  effect.  Succession  of  Levy, 
8:  1180,  39  So.  37,  115  La.  377.  (Annotated) 

d.  Delegation  of  powers. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Relation  of  courts  to  other  departments  of 
government,  see  Courts,  I.  c. 

As  to  powers  of  legislature  generally,  see 
Legislature,  II. 

•Delegation  to  private  association,  see  Li- 
cense, 66. 

Invalidating  of  entire  statute  because  of, 
see  Statutes,  56,  74. 

Delegation  of  authority  by  board  of  health, 
see  Waters,  129.        ' 

71.  An  employees'  compensation  act  is 
not  invalid  because  it  gives  the  employers 
the  right  to  determine  whether  or  not 
minors  rightfully  employed  by  them  shall 
have  the  benefit  of  the  act,  in  the  same  way 
that  they  determine  the  matter  for  adult 
employees.  Borgnis  v.  Falk  Co.  37:  489, 
133  N.  W.  209,  147  Wis.  327. 

To  governor. 

72.  The  legislature  has  no  power  to  dele- 
gate to  the  governor  authority  to  create  the 
office  of  special  attorney  for  the  state  to 
prosecute  infringements  of  the  liquor  laws. 
State  ex  rel.  Young  v.  Butler,  24:  744,  73 
Atl.  560,  105  Me.  91. 

73.  Fixing  the  compensation,  within  max- 
imum and  minimum  limits,  of  a  police  offi- 
cer, is  not  so  inherently  of  a  legislative  char- 
acter that  the  authority  to  do  so  cannot  be 
delegated  to  the  governor.  Arnett  v.  State 
ex  rel.  Donohue,  8:  1192,  80  N.  E.  153,  168 
Ind.  180. 

To  railroad  or  street  railviray  com- 
pany. 

74.  Empowering  railroad  companies  to 
appoint  their  ticket  agents,  and  forbidding 
all  other  persons  to  sell  their  tickets  under 
penalty,  do  not  give  them  power  to  create 
crimes  and  say  who  are  criminals,  so  as  to 
constitute   an  unlawful   delegation  of  legis- 


538 


CONSTITUTIONAL  LAW,  I.  d,  2,  3. 


lative  authority.     Ex  i)arte  O'Neill,  3:  558, 
83  Pac.   104,  41   Wash.   174. 

75.  Provisions  in  an  occupation  tax  law, 
and  in  one  of  the  taxatiou  of  intanj^ible 
assets  of  railroad  corporations,  that,  when 
a  tax  is  paid  under  th«  latter,  the  provi- 
sions of  the  former  shall  not  apply,  do  not 
violate  a  constitutional  provision  that  no 
power  of  suspending  laws  shall  be  exercised 
except  by  the  legislature.  Missouri,  K.  & 
T.  R.  Co.  V.  Shannon,  10:  681,  100  S.  W. 
138,  100  Tex.  379. 

76.  A  statute  making  it  a  crime  fraudu- 
lently or  wilfully  to  violate  the  rules  made 
by  street  car  companies  with  respect  to  the 
issuance  and  use  of  their  transfers  is  not 
unconstitutional  as  a  delegation  to  such 
companies  of  the  right  to  create  or  suspend 
the  law.  Whaley  v.  State,  30:  499,  52  So. 
941,  168  Ala.  152.  (Annotated) 

2.  To  people. 

/See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

As  to  local  option,   see  Intoxicating  Li- 
quors, I.  c. 
See  also  infra,  145. 

77.  The  taking  effect  of  a  law  cannot  be 
made  to  depend  upon  the  vote  of  the  people 
under  a  constitutional  provision  that  the 
taking  effect  of  no  law  shall  be  made  to  de- 
pend upon  any  authority,  except  as  provid- 
ed by  the  Constitution,  which  merely  au« 
thorizes  the  ratification  by  the  people  of  the 
bill  adopted  by  the  legislature.  Fouts  v. 
Hood  River,  i :  483,  81  Pac.  370,  46  Or. 
492. 

78.  A  conatifbtional  provision  command- 
ing legislative  provision  for  the  transaction 
of  any  business,  the  doing  of  which  by  spe- 
cial legislation  is  prohibited  by  another  sec- 
tion of  the  article  in  question,  contemplates 
a  legislative  effort  in  general,  such  as  by 
the  enactment  of  a  law,  to  be  passive  un- 
til made  active  by  a  vote  of  the  people  of 
any  district  authorized  to  act  on  the  ques- 
tion,— not  delegation  of  power  to  the  peo- 
ple at  large  or  of  districts,  or  a  district,  ac- 
cording to  circumstances,  to  do  the  busi- 
ness. State  ex  rel.  Mueller  v.  Thompson, 
43:  339,  137  N.  W.  20,  149  Wis.  488. 

79.  A  statute  providing  for  a  commis- 
sion form  of  government  for  cities  does  not 
unconstitutionally  delegate  legislative  pow- 
er, by  providing  that  it  shall  become  ef- 
fective in  any  municipality  only  when 
adopted  by  vote  of  its  citizens.  State  ex 
rel.  Hunt  v.  Tausick,  35:  802,  116  Pac.  651, 
64  Wash.  69. 

80.  Provision  for  initiative  in  a  munici- 
pal charter,  which  shall  be  set  in  operation 
by  petition  of  a  certain  percentage  of  the 
voters,  does  not  violate  a  constitutional  pro- 
vision forbidding  the  delegation  to  any  spe- 
cial commission,  association,  or  individual, 
of  power  to  control  any  municipal  improve- 
ment or  property,  or  to  perform  any  munici- 
pal function.  Ex  parte  Pfahler,  11:  1092,  88 
Pac.  270,  150  Cal.  71. 

Digest  1-52  I1R.A.(N.S.) 


81.  A  statute  providing  that  the  electors 
of  each  political  party  may  desij^nate  their 
choice  of  a  party  candidate  for  the  United 
States  Senate,  and  that  the  persons  so 
chosen  shall  be  the  nominees  of  their  re- 
spective parties  for  such  ollice,  is  not  void 
on  the  ground  that  it  delegates  power  ex- 
pressly granted  to  the  legislature  by  U.  S. 
Const,  art.  1,  §  3,  providing  for  the  election 
of  United  States  Senators  by  the  state 
legislatures.  State  ex  rel.  McCue  v.  Blais- 
dcll,  24:  465,  118  N.  W.  141,  18  N.  D.  5.5. 

82.  A  statute  making  the  right  to  es- 
tablish a  private  industrial  school  in  a 
county  depend  upon  a  vote  of  the  electors 
of  the  county  violates  a  constitutional  pro- 
vision that  no  law,  except  such  as  relate 
to  intoxicating  liquors,  bridges,  public  roads 
and  buildings,  fences,  stock,  common 
schools,  paupers,  and  the  regulation  of 
local  affairs  of  municipalities,  shall  be 
enacted  to  take  effect  upon  the  approval 
of  any  other  authority  than  the  general 
assembly.  Columbia  Trust  Co.  v.  j^incoln 
Institute,  29:  53,  129  S.  W.  113,  138  Ky. 
804. 

83.  A  statute  is  not  invalid  as  a  delega- 
tion of  legislative  power  which  provides 
that  the  right  to  sell  intoxicating  liquors 
as  a  beverage  shall  not  be  denied  in  coun- 
ties where  a  majority  of  the  voters  express 
themselves  as  favorable  to  such  sales,  but 
shall  be  denied  in  counties  where  a  ma- 
jority express  themselves  as  favorable  to 
such  prohibition.  McPherson  v.  State,  31: 
188,  90  N.  E.  610,  174  Ind.  60. 

84.  The  intentional  omission  of  prohibi- 
tory liquor  laws  from  the  list  of  laws  the 
taking  effect  of  which  the  Constitution  per- 
mits to  depend  upon  the  vote  of  the  people 
does  not  prevent  the  legislature  from  pass- 
ing a  statute  providing  the  machinery  by 
which  license  laws  may  be  suspended  by 
vote  of  the  people.  Fouts  v.  Hood  River, 
1 :  483,  81  Pac.  370,  46  Or.  492. 

85.  A  statute  providing  the  machinery 
by  which  the  suspension  of  the  law  pro- 
viding for  the  issuing  of  licenses  for  the 
sale  of  intoxicating  liquor  in  cities  and  in 
incorporated  towns  may  be  secured,  so  that 
a  majority  of  the  -voters  of  the  precinct, 
ward,  or  district  involved  may  determine 
that  such  sale  shall  be  absolutely  prohibited 
in  the  district,  becomes  effective  by  the  act 
of  the  legislature,  and  not  by  the  vote  of 
the  people,  and  is  not,  therefore,  prohibited 
by  a  constitutional  provision  that  no  la-w 
shall  be  passed  the  taking  eliect  of  •vvhich 
shall  be  made  to  depend  upon  any  author- 
ity except  as  provided  by  the  Constitution. 
Fouts  V.  Hood  River,  1 :  483,  8i  Pac.  370,  46 
Or.  492.  (Annotated) 

3.  To  judiciary. 

(See   also   same   heading   in  Digest  L.R.A. 

1-10.) 

Relation  of  court  to  other  departments  of 
government,  see  Courts,  I.  c. 

Power  of  legislature  as  to  courts,  see 
Courts,  I.  e. 


CONSTITUTIONAL  LAW,   I.  d,   4. 


539 


86.  L^islative  power  is  not  unconstitu- 
tionally delegated  to  the  courts  by  the  pro- 
visions of  the  act  of  July  2,  1890,  §§  1,  2, 
prohibiting  combinations  in  restraint  of 
interstate  or  foreign  trade  or  commerce,  or 
the  monopolization  or  attempt  to  monopo- 
lize any  part  of  such  commerce,  because  the 
general  language  of  these  provisions  leaves 
it  to  the  judiciary  to  decide  whether,  in  a 
given  case,  the  particular  acts  come  within 
the  condemnation  of  the  statute.  Standard 
Oil  Co.  V.  United  States,  34:  834,  31  Sup. 
Ct.  Rep.  502,  221  U.  S.  1,  55  L.  ed.  619. 

87.  A  law  providing  for  an  inheritance 
tax  is  not  rendered  unconstitutional  by  com- 
mitting to  the  court  such  matters  as  tiie 
fixing  of  the  value  of  the  property  and  the 
amount  of  the  tax.  Nunnemacher  v.  State, 
9:  121,  108  N.  VV.  627,  129  Wis.  190. 

88.  In  the  absence  of  a  constitutional 
provision  regulating  or  prohibiting  the  traf- 
fic in  intoxicating  liquors,  the  power  to  so 
regulate  or  prohibit  is  vested  exclusively  in 
the  legislature,  and  that  function  cannot  be 
delegated  by  it  to  the  courts,  nor  lawfully 
usurped  by  the  judicial  branch  of  the  gov- 
ernment. Re  Phillips,  17:  looi,  116  N.  W. 
950,  82  Neb.  45. 

89.  The  legislature,  in  delegating  to  a 
commission  the  power  to  ascertain  and  fix 
reasonable  rates  and  r  :^rvice  for  railroad 
transportation,  which  rates  and  service,  thus 
ascertained,  shall  thenceforth  be  enforced, 
may  make  the  investigation  of  the  com- 
mission subject  to  review,  as  to  its  reason- 
ableness, by  the  courts.  Minneapolis,  St.  P. 
&  S.  Ste.  M.  R.  Co.  V.  Railroad  Com.  17:  821, 
116  N.  W.  905,  136  Wis.  146. 

4.  To  local  authorities,  boards,  and 
comtnissioners. 

(See   also   same   heading  in  Digest  L.R.A 

1-10.) 

Delegation  to  county  commissioners,  of  pow- 
er to  order  new  registration  of  voters, 
see  Elections,  15. 

Invalidating  of  entire  statute  because  of,  see 
Statutes,  56. 

See  also  supra,  80,  89;  infra,  124. 

90.  An  attempt  by  the  legislature  to 
confer  upon  the  courts  the  power  to  revie^ 
the  action  of  a  commission  does  not  enlarge 
the  power  of  the  court,  or  relieve  the  act 
of  any  vice  of  conferring  arbitrary  power 
upon  such  commission  which  may  otherwise 
have  existed.  State  Racing  Commission  v. 
Latonia  Agricultural  Asso.  25:  905,  123  S. 
W.  681,  136  Ky.  173. 

91.  The  legislature  may  delegate  to  a 
commission  the  power  to  determine  the 
boundaries  of  the  sections  of  a  city  in  which 
the  buildings  of  different  heights  as  deter- 
mined by  the  legislature  shall  be  erected. 
Welch  V.  Swasey,  23:  1160,  79  N.  E.  745, 
193  Mass.  C64. 

92.  Where  matters  of  local  self-govern- 
ment may  be  intrusted  to  the  inhabitants  of 
towns,  the  legislature  may  delegate  to  a 
commission  to  be  appointed  by  it  the  deter- 
Digest  1-52  L.R.A.(N.S.> 


mination  of  the  heights  of  buildings  to  be 
erected  in  different  places  within  the  city, 
where  the  statute  provides  for  a  general 
limitation  upon  the  height  to  which  build- 
ings can  be  erected.  Welch  v.  Swasey,  23: 
1 160,  79  N.  E.  745,  193  Mass.  364. 

93.  An  act  of  the  legislative  assembly 
authorizing  a  board  appointed  by  the  city 
council  without  the  consent  of  the  people  to 
levy  general  taxes  is  unconstitutional  as  a 
delegation  of  legislative  power.  Vallelly  v. 
Grand  Forks  Park  Comrs.  15:  61,  111  N.  W. 
615,    16    N.    D.    L5.  (Annotated) 

94.  A  statute  directing  the  county  su- 
perintendent of  public  instruction  to  furnish 
the  county  clerk  with  the  necessary  data 
for  a  levy,  in  case  a  school  district  refuses 
to  vote  taxes  for  free  high-school  purposes, 
does  not  thereby  delegate  to  such  superin- 
tendent a  taxing  power  committed  exclu- 
sively to  school  districts  under  the  consti- 
tutional provision  that  "all  municipal 
corporations  may  be  vested  with  authority 
to  assess  and  collect  taxes,"  as  such  pro- 
vision is  not  a  limitation  on  the  power  of 
the  legislature.  Wilkinson  v.  Lord,  24:  1104, 
122  N.  W.  699,  85  Neb.  136. 

95.  The  legislature  may  delegate  to  a 
commission  the  determination  of  the  ques- 
tion which  of  two  modes  of  construction 
and  which  of  two  termini  shall  be  adopted 
for  a  subway  which  the  legislature  itself 
has  authorized.  Codman  v.  Crocker,  25:  980, 
89   N.   E.    177,   203   Mass.    146. 

96.  The  legislature  may  delegate  to  a 
board  having  peculiar  knowledge  upon  the 
subject  the  selection  of  the  streams  in 
which  fish  are  of  sufficient  value  to  warrant 
the  prohibition  of  the  casting  of  sawdust  in- 
to the  stream.  Com.  v.  Sisson,  i:  752,  75  N. 
E.  619,  189  Mass.  247. 

97.  Conferring  on  a  board  of  commis- 
sioners the  power  to  fix  the  credits  which 
shall  be  allowed  convicts  for  good  behavior 
is  an  unconstitutional  delegation  of  legis- 
lative power.  Fite  v.  State  ex  rel.  Snider, 
1:  520,  88  S.  W.  941,  114  Tenn.  646. 

98.  A  statute  creating  an  entomological 
commission,  and  giving  it  authority  to  en- 
ter upon  premises  and  inspect  for  insect 
and  plant  diseases,  and,  in  case  of  the  dis- 
covery of  any,  to  notify  the  owner,  who 
thereupon  is  required  to  destroy  or  treat 
his  plants  and  trees  in  accordance  with  the 
rules  and  regulations  of  the  commission,  is 
not  invalid  because  of  the  fact  that  it  dele- 
gates to  the  commission  the  power  to  de- 
clare the  existence  of  conditions  which  call 
into  operation  the  provisions  of  the  statute. 
Balch  v.  Glenn,  43:  1080,  119  Pa;c.  67,  85 
Kan.  735. 

99.  The  power  delegated  to  the  voting 
machine  commission  created  by  chapter  267, 
p.  400,  Minn.  Laws  1905,  to  determine  the  ef- 
ficiency of  the  voting  machine  thereby  au- 
thorized to  be  used  at  elections  in  this  state 
is  neither  legislative  nor  judicial,  but  ad- 
ministrative, in  character.  Elwell  v.  Com- 
stock,  7:  621,  109  N.  W.  698,  99  Minn.  261. 

100.  The  legislature  may  delegate  to  a 
board  power  to  license  moving  picture  ma- 
chine operators,  and  provide  for  the  revo- 


540 


CONSTITUTIONAL  LAW,  I.  d,  4. 


cation  of  iheir  licenses.    State  ex  rel.  Ebert 
V.  Loden,  40:  193,  83  Atl.  564,  117  Md.  373. 

101.  The  legislature  may  delegate  to  a 
commission  the  power  to  license  horse  ra- 
cing under  rules  and  regulations  which  such 
commission  shall  prescribe.  State  Racing 
Commission  v.  Latonia  Agricultural  Asso. 
25:  905,  123  S.  W.  681,   136  Ky.  173. 

102.  The  legislature  cannot  delegate  to  a 
state  board  the  power  to  revoke  the  license 
of  a  physician  for  making  "grossly  improb- 
able statements"  in  an  advertisement,  with- 
out any  definition  of  such  terms.  Hewitt 
V.  Board  of  Medical  Examiners,  3:  896,  84 
Pac.  39,   148  Cal.  590. 

103.  There  is  no  delegation  of  power  in 
conferring  upon  a  state  board  authority  to 
revoke  the  license  of  an  architect  for  gross 
incompetency  or  recklessness  in  the  con- 
struction of  a  building.  Klafter  v.  State 
Bd.  of  Examiners,  46:  532,  102  N.  E.  193, 
259  111.  15. 

104.  No  unconstitutional  delegation  of 
legislative  power  is  effected  by  conferring 
on  an  administrative  commission  the  power 
to  fix  the  maximum  rates  which  the  legisla- 
ture declares  shall  be  charged  by  gas  com- 
panies. Saratoga  Springs  v.  Saratoga  Gas, 
E.  L.  &  P.  Co.  18:  713,  83  N.  E.  693,  191 
N.  Y.  123.  (Annotated) 

105.  The  legislature  cannot  confer  upon 
court  commissioners,  whose  constitutional 
jurisdiction  is  that  of  a  circuit  judge  at 
chambers,  powers  with  reference  to  juvenile 
offenders  which  require  proceedings  within 
the  power  of  courts  of  record  only.  Hunt 
V.  Wavne  Circuit  Judges,  3:  564,  105  N.  W. 
531,  142  Mich.  93.  (Annotated) 
To  municipality. 

Delegation  by  voters  to  city  council  of 
power  to  fix  amount  of  bonds,  see 
Bonds,  76. 

What  is  a  delegation  of  power  to  or  by  mu- 
nicipality, see  Municipal  Corpora- 
tions, II.  b,  1. 

Authority  of  municipality  to  delegate  its 
power,  see  Municipal  Corporations, 
II.  b,  2. 

See  also  infra,  275. 

106.  A  law  conferring  upon  cities  au- 
thority to  alter  or  amend  their  charters  or 
adopt  new  ones  by  convention  is  a  delega- 
tion to  the  municipality  of  power  reserved 
to  the  legislature  by  the  Constitution,  and 
therefore  void.  State  ex  rel.  Mueller  v. 
Thompson,  43:  339,  137  N.  W.  20,  149  Wis. 
488.  (Annotated) 

107.  A  statute  providing  a  scheme  for 
municipal  government  by  the  "commission 
plan,"  in  those  cities  that  adopt  its  pro- 
visions by  popular  vote,  is  not  void  as  an 
attempt  to  delegate  legislative  power  to 
the  people  of  such  municipalities.  Cole  v. 
Dorr,  22:  534,  101  Pac.  1016,  80  Kan.  251. 

108.  The  legislative  power  to  fix  the 
boundaries  of  taxing  districts  for  the  con- 
struction of  local  improvements  may  be 
delegated  to  minor  municipalities.  Ross  v. 
Wright  County,  i:  431,  104  N.  W.  506,  128 
Iowa,  427. 

109.  Power  may  be  delegated  to  a  mu- 
nicipal corporation  to  exercise  the  right  of 
Digest   1-52  L.R.A.(N.S.) 


eminent  domain  to  enable  it  to  supply  its 
inhabitants  with  water  and  electric  liglits. 
Miller  v.  Pulaski,  22:  552,  63  S.  E.  880,  109 
Va.  1.37. 

110.  The  legislature  may  delegate  to  a 
municipality  the  selection  of  the  character 
of  light  which  it  will  require  a  railroad 
company  to  maintain  at  its  street  crossings. 
Pittsburg,  C.  C.  &  St.  L.  R.  Co.  v.  Hartford 
City   20:.  461,  82  N.  E.  787,  170  Ind.  674. 

in.  The  power  resting  in  the  state  to 
license  and  reguhite,  in  the  exercise  of  the 
police  power,  chattel  mortgage  and  salary 
loan  brokers,  may  be  delegated  to  municijial 
corporations.  Sanning  v.  Cincinnati,  25: 
686,  90  N.  E.  125,  81  Ohio  St.  142. 

112.  Charter  authority  empowering  the 
city  council  by  ordinance  to  regulate,  pro- 
vide for,  and  compel  the  construction  and 
repair  of  sidewalks  and  pavements,  and  in 
case  the  owner  of  an  abutting  lot  fails  to 
comply  with  the  provisions  of  the  ordinance, 
empowering  the  council  to  construct  the 
sidewalk  or  pavement  and  make  the  cost 
thereof  a  lien  upon  the  lot,  is  a  valid  dele- 
gation of  authority  to  the  municipality. 
Anderson  v.  Ocala,  52:  287,  64  So.  775,  — 
Fla.  — . 

To  park  commissioners. 

113.  A  board  of  park  commissioners  to  be 
appointed  by  the  governor  is  not  a  corpo- 
rate authority  of  a  municipal  corporation, 
within  the  meaning  of  a  constitutional  pro- 
vision that  the  legislature  shall  not  levy 
taxes  upon  the  inhabitants  or  property  in 
the  city  or  town  for  municipal  purposes, 
but  may  vest  in  the  corporate  authorities 
thereof  the  power  to  assess  and  collect  such 
taxes.  State  ex  rel.  Gerry  v.  Edwards,  32: 
1078,  111  Pac.  734,  42  Mont.  135. 

(Annotated) 
To  Interstate  Commerce  Commissian. 

114.  Legislative  power  is  not  unconstitu- 
tionally delegated  to  the  Interstate  Com- 
merce Commission  by  the  act  of  Februarv 
4,  1887,  §  20,  as  amended  by  the  act  o'f 
June  29,  1906,  authorizing  the  Commission 
to  prescribe  a  uniform  system  of  account- 
ing and  bookkeeping  for  the  carriers  sub- 
ject to  that  act,  even  though  such  uniform- 
ity requirements  may  control  or  tend  to 
control  the  conduct  of  the  carrier  in  its 
capacity  as  a  public  servant  engaged  in  in- 
terstate commerce.  Kansas  City  S.  R.  Co. 
V.  United  States,  52:  i,  34  Sup.  Ct.  Rep. 
125,  231  U.  S.  423,  58  L.  ed.  296. 

To   civil    service    commissioners. 

115.  A  statute  permitting  a  commission 
to  carry  into  effect  the  civil  service  law  to 
make  rules  to  regulate  the  exercise  of  the 
powers  conferred  upon  them,  and  to  classify 
the  oflices  and  provide  for  exemptions  and 
suspend  them  in  certain  cases,  does  not  con- 
stitute an  unlawful  delegation  of  legisla- 
tive power,  where  the  legislature  itself  has 
provided  a  complete  classification  of  offices, 
and  imposed  the  duty  on  the  commission 
of  arranging  the  oflices  pursuant  to  the 
classification.  State  ex  rel.  Buell  v.  Frear, 
34:  480,  131  N.  W.  832,  146  Wis.  291. 

I  To  board   of  health. 

116.  A  statute  prescribing  punishment  for 


CONSTITUTIONAL  LAW,  I.  d.  5,  e,  1. 


541 


violation  of  a  regulation  of  the  state  board 
of  health  is  not  unconstitutional  on  the  the- 
ory that  legislative  power  to  create  crimes 
is  thereby  delegated  to  such  board.  Pierce 
V.  Doolittle,  6:  143,  106  N.  W.  751,  130 
Iowa,  333.  (Annotated) 

117.  The  legislature  cannot  delegate  to  a 
board  authority  to  require  a  knowledge  of 
embalming  as  a  condition  to  receiving  an 
undertaker's  license.  Wyeth  v.  Thomas,  23: 
147,  86  N.  E.  925,  200  Mass.  474. 

118.  The  legislature  may,  in  forbidding 
the  employment  of  minors  in  dangerous  oc- 
cupations, delegate  to  health  officers  the 
power  of  determining  what  occupations  are 
dangerous.  Louisville,  H.  &  St.  L.  R.  Co.  v. 
Lyons,  48:  667,  159  S.  W.  971,  155  Ky.  396. 
To    railroad    commissioners. 

119.  A  legislature  cannot  delegate  the 
power  to  make  a  law  prescribing  a  penalty, 
but  it  is  competent  for  the  legislature  to 
authorize  a  railroad  commission  to  prescribe 
duties  upon  which  the  law  may  operate  in 
imposing  a  penalty  and  in  effectuating  the 
purpose  designed  in  enacting  the  law,  and 
where  the  penalty  is  imposed  by  law  it  may 
be  incurred  for  the  penal  violation  of  a  rule 
prescribed  by  a  railroad  commission  within 
their  express  authority.  State  v.  Atlantic 
C.  L.  R.  Co.  32:  639,  47  So.  !)69,  56  Fla.  617. 

120.  No  unconstitutional  delegation  of 
legislative  power  is  effected  by  conferring 
on  an  administrative  commission  power  to 
carry  into  effect  the  legislative  purpose  to 
regulate  intrastate  transportation  by  com- 
mon carriers  by  fixing  reasonable  freight 
and  passenger  rates,  and  by  providing  rules 
to  effectuate  their  enforcement  by  the  im- 
position of  penalties  for  violation  thereof. 
State  V.  Atlantic  C.  L.  R.  Co.  32:639,  47  So. 
969,  56  Fla.  617.  (Annotated) 

121.  A  legislature  may  enact  a  law  com- 
plete in  itself,  "designed  to  accomplish  the 
regulation  of  common  carriers,  and  may  ex- 
pressly authorize  an  administrative  com- 
mission within  definite  valid  limits  to  pro- 
vide rules  and  regulations  for  the  complete 
operation  and  enforcement  of  the  law  with- 
in its  expressed  general  purpose,  since  the 
complex  and  changing  conditions  that  at- 
tend and  affect  such  a  service  make  it  im- 
practicable for  the  legislature  to  prescribe 
the  necessary  rules  and  regulations.  State 
v.  Atlantic  C.  L.  R.  Co.  32':  639,  47  So.  969, 
56  Fla.   617. 

122.  The  provision  of  Minn.  Rev.  Laws 
1905,  §  2872,  which  attempts  to  authorize 
the  state  railroad  commission  in  its  judg- 
ment to  allow  an  increase  in  the  capital 
stock  of  railroad  corporations  for  such  pur- 
poses and  on  such  terms  as  it  may  deem 
advisable,  or,  in  its  discretion,  to  refuse  it, 
violates  Minn.  Const,  art.  3,  §  1,  in  that  it 
delegates  to  the  commission  legislative  pow- 
er. State  V.  Great  Northern  R.  Co.  10:  250, 
111  N.  W.  289.  100  Minn.  445.  (Annotated) 
To    dr^ina^e    commissioners. 

123.  The  legislature  is  not  prevented  from 
delegating  to  county  drainage  commission- 
ers the  power  to  levy  a  tax  for  a  drainage 
improvement,  by  constitutional  provisions 
that  it  shall  not  delegate  to  any  special  com- 
mission, private  corporation,  or  association 
Digest   1-52  Ii.R.A.(N.S.) 


any  power  to  make,  supervise,  or  interfere 
with  any  improvement,  or  to  levy  taxes,  and 
that  the  legislature  shall  not  levy  taxes  upon 
the  inhabitants  or  property  of  any  county 
for  county  purposes,  but  may  vest  in  the 
corporate  autliorities  tliereof  powe-  to  assess 
and  collect  taxes  for  such  purposes, — espec- 
ially where  the  Constitution  also  provides 
that  the  legislature  shall  provide  for  such 
other  county  officers  as  public  convenience 
may  require.  Billings  Sugar  Co.  v.  Fish, 
26:  97^,  100  Pac.  565,  40  Mont.  256. 

5.    Of  judicial  power, 

(See   also   same  heading  in  Digest  L.R.A. 
1-10.) 

For  encroachment  on  judicial  power,  see  in- 
fra, I.  e,  2. 
See  also  infra,  375. 

124.  Judicial  power  is  not  vested  in  a 
commission  by  a  statute  providing  that  a 
provision  requiring  employers  advertising 
for  help  during  a  strike  to  mention  its  ex- 
istence shall  cease  to  be  operative  when  the 
state  board  of  conciliation  shall  determine 
that  the  business  of  the  employer  is  being 
carried  on  in  the  usual  extent,  since  that 
fact  may,  in  case  of  a  judicial  proceeding, 
be  determined  from  any  competent  evidence. 
Com.  V.  Libbey,  49:  879,  103  N.  E,  923,  216 
Mass.  350. 

e.  Separation  of  powers, 

1.  In  general. 

(See   also    same   heading   in  Digest    L.R.A. 
1-10.) 

Judicial  power  to  decide   as  to  legislative 

acts,  see  Courts,  I.  c,  2. 
As  to  pardoning  power,  see  Criminal  Law, 

IV.  h. 
As  to   powers   of  legislature  generally,   see 

Legislature,  II. 

125.  Whether  a  drainage  ditch,  proposed 
to  be  constructed  pursuant  to  article  1  of 
chapter  80  of  the  Nebraska  Compiled  Stat- 
utes of  1903,  will  be  conducive  to  the  pub- 
lic health,  convenience,  or  welfare,  or  wheth- 
er the  route  thereof  is  practicable,  are  ques- 
tions of  governmental  or  administrative  pol- 
icy, and  are  not  of  judicial  cognizance;  and 
jurisdiction  over  them,  by  appeal  or  oth- 
erwise, cannot  be  conferred  upon  the  courts 
by  statute.  Tyson  v.  Wasliinston  Countv, 
12:  350,  110  N.'  W.  6.34,  78  Neb.  211. 

126.  The  duty  jto  declare  the  result  of  a 
local-option  election  may  be  imposed  by  stat- 
ute upon  a  county  court  under  a  constitu- 
tional provision  which  vests  it  with  "such 
other  powers  and  duties  as  may  be  prescribed 
by  law,"  the  performance  of  which  may  be 
enforced  by  mandamus.  State  ex  rel.  Gib- 
son v.  Richardson,  8:  362,  85  Pac.  225,  48  Or. 
309. 

127.  The  provision  of  Kan.  Gen.  Stat.  1905, 
§  8343,  that  a  taxpayer  deeming  himself  ag- 


542 


CONSTITUTIONAL  LAW,  I.  e,  2. 


grieved  by  any  decision  of  the  county  board 
of  equalization  relative  to  the  taxable  valu- 
ation of  his  real  estate  may  appeal  to  the 
district  court,  is  unconstitutional  and  void, 
since  the  assessment  of  property  for  pur- 
poses of  taxation  is  not  a  judicial  function. 
Silven  v.  Osage  County,  13:  716,  92  Pac.  604, 
76   Kan.   687.  (Annotated) 

2.  Encroachment  on  judicial  power. 

(See   also   same   heading   in  Digest  LJR.A. 
1-70.) 

Delegation  of  judicial  power,  see  supra,  I. 

d,  6. 
Infringement    of    prerogative    of    court    by 

statute  as  to  admission  of  attorneys,  see 

Attorneys,  2. 
Abridging  power  of  court  as  to  contempt, 

see  Contempt,  98. 
Relation  of  court  to  other  departments  of 

government,  see  Courts,  I,  c. 
Power    of    legislature    as    to    courts,    see 

Courts,  I.  e. 
Relation  of  court  to  public  service  commis- 
sion, see  PuBi-io  Service  Cjmmission, 

10-19. 

128.  Conferring  power  upon  the  public 
service  commission  to  render  judgment  as 
to  the  necessity  of  the  taking  and  the 
amount  of  compensation  in  an  eminent  do- 
main proceeding  is  not  unconstitutional  as 
interfering  with  the  power  of  the  courts. 
George  v.  Consolidated  Lighting  Co.  52: 
850,  89  Atl.  635,  87  Vt.  411. 

129.  The  mere  fact  that  a  duty  imposed 
upon  an  executive  officer  requires  him  to  as- 
certain facts  and  determine  his  action  upon 
the  facts  found  does  not  make  it  judicial 
within  the  meaning  of  the  constitutional 
provision  separating  the  departments  of 
government.  Missouri,  K.  &  T.  R.  Co.  v. 
Shannon,  10:  681,  100  S.  W.  138,  100  Tex. 
379. 

130.  A  constitutional  amendment  vali- 
dating an  attempted  increase  of  judges' 
salaries  in  certain  counties,  which  had  been 
declared  unconstitutional  by  the  courts, 
cannot  be  held  to  be  invalid  at  the  instance 
of  the  counties  concerned,  as  interfering 
with  the  province  of  the  judiciary  and  at- 
tempting to  overturn  its  decisions.  Ham- 
mond V.  Clark,  38:  77,  71  S.  JE.  479,  136  Ga. 
313. 

131.  Section  266,  Okla.  Comp.  Laws  1909, 
in  so  far  as  it  prohibits  the  disbarment  of 
an  attorney  for  acts  involving  moral  turpi- 
tude, not  connected  with  his  professional 
or  official  duty  as  an  attorney,  until  after 
conviction  therefor,  is  not  violative  of  the 
provisions  of  the  Constitution  vesting  in 
the  various  courts  of  the  state  the  judicial 
power  of  the  state,  and  prohibiting  the 
exercise  Jjy  one  of  the  three  great  depart- 
ments of  the  government  of  the  power  prop- 
erly belonging  to  the  other  departments. 
Re  Saddler,  44:  11 95,  130  Pac.  906.  35  Okla. 
510.  (Annotated) 

132.  The  enactment  of  a  law  permitting 
an  appellate  court  to  direct  judgment  for  de- 
Digeit  1-52  I..It.A.(N.S.) 


fendant  without  further  trial,  upon  setting 
aside  a  verdict  in  plaintiff's  favor,  is  not 
prevented  by  a  constitutional  provision  that 
the  legislature  which  previously  exercised 
such  power  shall  continue  to  exercise  the 
powers  it  has  heretofore  exercised,  unless 
prohibited  by  the  Constitution, — especially 
where,  before  the  adoption  of  the  Constitu- 
tion, a  court  exercising  such  power  had  been 
created,  and  the  Constitution  expressly  pro- 
vides that  the  court  established  by  it  shall 
have  the  same  jurisdiction  as  the  one  pre- 
viously existing.  Gunn  v.  Union  R.  Co. 
2:  883,  63  Atl.  239,  27  R.  I.  432. 

133.  The  revocation  of  the  license  of  an 
architect  for  cause  by  a  state  board  is  not 
an  exercise  of  judicial  power.  Klafter  v. 
State  Bd.  of  Examiners,  46:  532,  102  N.  E. 
193,  259  111.  15. 

134.  The  legislative  attempt  to  confer 
upon  a  father  the  right  to  grant  the  custody 
of  his  children  to  the  exclusion  of  their 
mother  is  an  unconstitutional  exercise  of 
judicial  power.  Tillman  v.  Tillman,  26: 
781,  66  S.  E.  1049,  84  S.  C.  552. 

135.  Providing  for  the  submission  to  an 
administrative  board  of  the  questions  of 
fact  in  case  of  a  dispute  as  to  the  amount 
to  be  awarded  an  injured  employee  under 
a  workmen's  compensation  act,  which  has 
power  to  award  the  amount  due  as  provid- 
ed by  the  statute,  which  award,  under  cer- 
tain circumstances,  may  be  reviewed  by  the 
courts,  does  not,  where  the  jurisdiction  of 
the  commission  depends  on  the  consent  of 
parties,  and  the  question  of  consent  is  sub- 
ject to  review  by  the  courts,  render  the 
commission  a  court,  and  the  statute  void  on 
the  theory  that  the  legislature  has  no 
constitutional  power  to  create  courts. 
Borgnis  v.  Falk  Co.  37:  489,  133  N.  W.  209, 
147  Wis.  327. 

136.  Limitation  by  the  legislature  of  the 
term  for  which  imprisonment  may  be  im- 
posed for  contempt  of  court  is  not  uncon- 
stitutional. Creasy  v.  Hall,  41 :  478,  148  S. 
W.  914,  243  Mo.  679. 

137.  Power  to  issue  warrants  of  arrest 
is  not  so  exclusively  a  judicial  one  that  it 
cannot  be  conferred  upon  the  clerks  of  the 
court.  Kreulhaus  v.  Birmingham,  26:  492, 
51   So.   297,   164  Ala.  623. 

138.  A  statute  providing  that  if,  for  any 
reason,  the  execution  of  a  criminal  is  de- 
layed beyond  the  time  fixed  in  the  judgment, 
the  governor  shall  designate  another  day, 
does  not  violate  a  constitutional  provision 
forbidding  a  person  in  one  department  of 
government  to  exercise  powers  belonging  to 
another  department,  since  the  fixing  of  the 
day  under  such  circumstances  is  a  minis- 
terial, and  not  a  judicial,  act.  Bullitt  v. 
Sturgeon,  14:  268,  105  S.  W.  468,  127  Ky. 
332.  (Annotated) 

139.  A  statute  authorizing  a  prison  board 
of  control  to  transfer  prisoners  from  the 
reformatory  to  the  state  prison,  and  vice 
versa,  is  not  unconstitutional,  as  consti- 
tuting a  legislative  attempt  to  vest  admin- 
istrative officers  with  judicial  functions. 
State  ex  rel.  Kelly  v.  Wolfer,  42:  978,  138 
N.  W.  315,  119  Minn.  368.  (Annotated) 


CONSTITUTIONAL  LAW,  I.  e,  3— II.  a,  1. 


543 


Prima  facie  evidence;  presumptions. 

140.  A  statute  providing  that  certain  acta 
shall  be  prima  facie  evidence  of  fraudulent 
intent  does  not  interfere  with  the  consti- 
tutional powers  of  the  judiciary.  8tate  v. 
Thomas,  z    loii,  40  So.  271.  144  Ala.  77. 

141.  A  statutory  provision  that  proof  of  a 
contract  of  hiring,  i  .e  procuring  tiiereon  of 
money  or  other  thing  of  value,  the  failure 
to  perform  the  services  contracted  for  or  to 
return  the  money  so  advanced  with  inter- 
est thereon  to  the  time  the  labor  was  to 
be  performed,  witliout  good  and  sufficient 
cause  and  without  loss  or  damage  to  the 
hirer,  shall  be  presumptive  evidence  of  a 
fraudulent  intent  in  the  procurement  of  the 
adviinces, — is  not  an  assumption  of  judi- 
cial functions  by  the  legislature.  Banks  v. 
State,  2:  1007,  52  S.  E.  74,  124  Ga.  15. 

( Annotated ) 

142.  A  statute  making  possession  of  more 
than  one  quart  of  liquor  pr'  na  facie  evi- 
dence of  intent  to  violate  the  statute 
against  illegal  sales  is  not  unconstitutional 
as  invading  the  province  of  the  judiciary 
and  depriving  accused  of  the  presumption 
of  innocence,  or  as  making  prima  facie  evi- 
dence of  guilt  a  fact  which  has  no  relation 
to,  or  does  not  tend  to  prove,  the  criminal 
act.  State  v.  Barrett,  i:  626,  50  S.  E.  506, 
138  N.  C.  630.  (Annotated) 

3.  As  to  appointment  of  officers. 

(See  also  same  heading  in  Digest  LJt.A. 
1-70.J 

Appointment  of  oflScers  generally,  see  Offi- 
cers, I.  b. 

Effect  of  failure  to  prove  lex  loci,  see  Pt.f.ap- 
ING,  63. 

/.  Local  self-government. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Self-exacting  provisions  of  Constitution  as 

to  home  rule,  see  supra,  27. 
See  also  supra,  16. 

143.  The  legislature  may  enact  general 
laws  governing  municipal  corporations  un- 
der constitutional  provisions  that  corpora- 
tions may  be  formed  under  general  laws, 
and  that  the  legislative  assembly  shall  not 
enact,  amend,  or  repeal  any  charter  or  act 
of  incorporation  for  any  municipality,  city, 
or  town.  Kiernan  v.  Portland,  37:  332,  111 
Pac.  379,   112  Pac.  402,  57  Or.  454,  466. 

144.  It  is  not  an  interference  with  the 
principles  of  local  self-government  vested 
in  counties  and  townships,  for  the  state  to 
provide  for  the  construction  of  highways, 
and  the  legislatvire  may  therefore  enact  a 
law  levying  a  tax  for  such  purpose.  State 
ex  rel.  Donahey  v.  Edmondson,  52:  305,  105 
N.  E.  269,  89  Ohio  St.  93. 

145.  The  people  may  confer  upon  the 
voters  of  a  municipal  corporation  the  right 
to  enact  local  laws  which  cannot  be  affect- 
ed by  special  acts  of  the  legislature,  so  long 
Digest  1-52  11R.A.(N.S.) 


as  the  legislature  is  not  prevented  from 
controlling  them  by  general  enactments. 
Kiernan  v.  Portland,  37:  332,  111  Pac.  379, 
112  Pac.  402,  i57  Or.  454,  46C. 

146.  The  right  of  local  self-government  is 
not  infringed  by  a  statute  regulating  the 
police  force  of  a  city.  Horton  v.  Newport, 
1:512,  61  Atl.  7u9,  27  R.  L  283. 

(Annotated) 

147.  Legislative  control  of  the  local  police 
and  requiring  the  payment  of  their  salaries 
out  of  local  funds,  are  not  forbidden  by 
the  provisions  of  the  14th  Amendment  of 
the  United  States  Constitution.  Horton  v. 
Newport,  i:  512,  61  Atl.  759,  27  R.  I.  283. 
Appointment    of    officers. 

As  to  appointment  of  officers  generally,  see 
supra,  I.  e,  3;  Officers,  I.  b. 

148.  The  legislature  cannot,  in  view  of  the 
right  of  local  self-government,  confer  upon 
the  governor  power  to  appoint  a  board  to 
control  a  city's  fire  department.  Davidson  v. 
Hine,  15:  575,  115  N.  W.  246,  151  Mich.  294. 

(Annotated) 

149.  The  legislature  may  control  the  ap- 
pointment of  the  police  commissioners  of  a 
city,  and  impose  the  burden  of  maintain- 
ing the  police  department  upon  the  munici- 
pality. Arnett  v.  State  ex  rel.  Donohue, 
8:  1 192,  80  N.  E.  153,  168  Ind.  180. 

g.  Functions  and  powers  of  state. 
(See  same  heading  in  Digest  L.R.A.  1-10.) 

h.  Abandonment  of  power. 
(See  same  heading  in  Digest  LJi.A.  1-10.) 

II.  Rights  of  persons  and  property. 

a.  Equal  protection  and  privileges; 
abridging  immunities  and  privileg- 
es. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Discrimination  in  ballot,  see  Elections,  37. 
Class  legislation  by  statute  forbidding  sale 

of    game    lawfully    taken,    see    Game 

Laws,  6. 
Special  and  local  legislation,  see  Statutes, 

I-  g. 
Discrimination  in  water  rates,  see  Watebs, 

422-424. 
See   also   infra,   365,   454,   456,    535;    Civil 

Rights. 

150.  Equal  protection  of  the  law  means 
that  equal  protection  and  security  shall  be 
given  to  all  under  like  circumstances  in 
their  lives,  their  liberty,  and  their  property, 
and  in  pursuit  of  happiness,  and  in  the 
exemption  from  any  greater  burdens  and 
charges  than  are  equally  imposed  upon  all 
others  under  like  circumstances.  Re  Mallon, 
22:  1 1 23,  102  Pac.  374,  16  Idaho,  737. 

151.  Where  there  is  a  substantial  differ- 
ence  in   the    condition   or   situation    of   in- 


544 


CONSTITUTIONAL  LAW,  II.  a,  1. 


dividuals  or  objects  with  reference  to  the 
subject  embraced  in  a  law,  an  appropriate 
limitation  based  on  such  difTerence,  in  the 
application  of  the  law,  does  not  make  such 
legislation  partial.  State  v.  Chicago,  M. 
&  St.  P.  R.  Co.  33:  494,  130  N.  W.  545,  114 
Minn.   122. 

152.  The  constitutional  guaranty  of  equal 
rights  is  not  infringed  by  making  a  police 
regulation  applicable  only  in  certain  cities 
of  a  state.  People  ex  rel.  Armstrong  v. 
Warden  of  New  York  City  Prison,  2:  859, 
76  N.  E.  11,  183  N.  Y.  "223. 

As   to  neomen. 

Regulation  of  hours  of  labor,  see  infra,  308- 
311. 

Restricting  right  to  contract,  see  infra, 
481-483. 

Special  or  local  legislation  as  to,  see  Stat- 
utes, 162,  163. 

See  also  infra,  245,  276. 

153.  A  statute  permitting  the  annexation 
of  property  belonging  to  women,  to  munici- 
palities, without  giving  them  an  opportunity 
to  make  defense  to  the  proceedings,  does  not 
deprive  them  of  the  equal  protection  of  the 
laws.  Carrithers  v.  Shelbyville,  17:  421,  104 
S.  W.  744,  126  Ky.  769. 

154.  Women  of  full  age  are  not  denied 
constitutional  privileges  and  immunities  by 
forbidding  their  being  permitted  to  remain 
in  or  about  saloons.  State  v.  Baker,  13: 
1040,  92  Pac.  1076,  50  Or.  381, 

155.  A  municipal  ordinance  prohibiting 
keepers  of  saloons  where  intoxicating  liquors 
are  sold  from  permitting  women  to  be  in  or 
about  their  places  of  business  and  from  sell- 
ing intoxicants  to  them  is  not  an  uncon- 
stitutional discrimination  against  women ; 
nor  does  it  deprive  them  of  their  equal 
rights,  privileges,  and  immunities  under  the 
Constitution.  People  v.  Case,  18:  657,  116 
N.  W.  558,  153  Mich.  98.  (Annotated) 

156.  Withholding  from  women  permits  to 
sell  intoxicating  liquors,  while  granting 
them  to  others,  does  not  deprive  them  of 
any  constitutional  right  of  equal  protec- 
tion or  uniform  operation  of  laws,  or  vio- 
late the  provision  against  the  granting  of 
special  privileges  or  immunities.  Re  Car- 
ragher,  31:  321,  128  N.  W.  352,  149  Iowa, 
225. 

Tlighw^ays;  vehicles  on. 

Interference  with  personal  liberty,  see  infra, 

351. 
Due  process  as  to,  see  infra,  363,  376,  377, 

378,    522. 
Police  power  as  to,  see  infra,  647-649. 
See  also  infra,  168,  25.3-255. 

157.  Making  an  ordinance  prohibiting  the 
maintenance  of  leaky  water  pipes  in  a  street 
apply  only  to  water  companies  and  their 
managers,  to  the  exclusion  of  consumers 
maintaining  pipes  in  the  streets,  is  not  un- 
lawful discrimination.  Crumpler  v.  Vicks- 
burg,  II :  476,  42  So.  673,  89  Miss.  214. 

158.  The  legislature  may,  without  impair- 
ing the  constitutional  right  to  equal  pro- 
tection of  the  laws,  or  the  riglit  of  pursuing 
happiness,  authorize  a  municipal  corpora- 
tion to  close  to  automobiles  dangerous 
streets  the  use  of  wliich  bv  such  machines 
Digest  1-52  I..R.A.(Iir.S'.) 


may  endanger  the  lives  of  their  occupants 
or  of  tliose  driving  liorses  upon  the  streets. 
State  v.  Mayo,  26:  502,  75  Atl.  295,  106  Me. 
32, 

159.  Requiring  one  wishing  to  drive  a 
traction  engine  across  a  bridge  to  lay  planks 
under  its  wheels,  to  be  entitled  to  the  law- 
ful use  of  the  bridge  for  that  purpose,  does 
not  render  a  statute  making  tlie  county 
liable  for  injuries  through  defects  in  the 
bridge  only  to  those  lawfully  using  it  in- 
valid, so  far  as  it  excludes  from  its  benefit 
one  failing  to  use  the  planks,  as  class  legis- 
lation. Jones  V.  Union  County,  42:  1035, 
127  Pac.  781,  63  Or.  566. 

160.  The  legislature  cannot  grant  to  a 
protective  association  organized  by  insur- 
ance companies  to  attend  fires  and  protect 
persons  and  property,  a  right  of  way  in 
the  public  streets  superior  to  tliat  of  the 
citizens  generally,  under  a  Constitution  pro- 
viding that  no  exclusive  privileges  shall  be 
granted  except  in  consideration  of  public 
service.  Louisville  R.  Co.  v,  Louisville  Fire 
&  Life  Protective  Asso.  43:600,  152  S.  W, 
799,    151   Ky,   644,  (Annotated) 

161.  That  a  statute  limiting  speed  on  the 
highways  applies  only  to  horseless  vehicles 
does  not  render  it  void  under  a  constitution- 
al provision  that  no  one  shall  be  deprived 
of  liberty  or  property  without  due  process 
of  law,  as  making  an  unjust  discrimination 
against  the  manufacturers  and  owners  of 
such  vehicles.  Christy  v.  Elliott,  i:  215,  74 
N.  E.    1035,  216   111.   31.  (Annotated) 

162.  A  provision  in  a  general  city  ordi- 
nance regulating  the  use  of  motor  vehicles, 
that  "it  shall  be  unlawful  for  any  person 
operating  a  motor  cj'cle  to  carry  another 
person  on  said  machine  in  front  of  the  op- 
erator," is  general  with  respect  to  all  mem 
bers  of  the  class  affected,  and  based  upon  a 
reasonable  classification.  Re  Wickstrum, 
42:  1068,  138  N.  W.  733,  92  Neb.  523. 

( Annotated ) 
Municipalities. 
See  also  supra,  153. 

163.  The  legislature  may  discriminate  as 
it  sees  fit,  in  legislating  for  the  municipal 
corporations  which  it  has  created.  People 
ex  rel.  Williams  Engineering  &  C.  Co.  v. 
Metz,  24:  201,  85  N.  E.  1070,  193  N.  Y.  148. 

164.  A  classification  applicable  only  to 
municipalities  of  the  state  having  less  than 
a  specified  number  of  inhabitants  according 
to  a  particular  Federal  census  is  not  suf- 
ficient to  save  a  statute  from  condemnation 
as  conferring  special  privileges  and  im- 
munities. Fleming  v.  Memphis,  42:  493,  148 
S.  W.  1057,  126  Tenn.  331. 

165.  Neither  the  power  of  a  municipality 
to  contract  with  a  private  person  for  the 
construction  and  operation  of  waterworks 
or  public  utilities,  nor  the  right  of  such  per- 
son under  the  contract,  constitutes  a  special 
privilege  or  immunity  Avithin  the  meaning 
of  those  terms  in  Neb.  Const,  art.  1,  §  16, 
which  pix)liibits  the  legislature  from  "mak- 
ing any  irrevocable  grant  of  special  privi- 
leges or  immunities."  Omaha  Water  Co.  v. 
Omaha,  12:  736,  147  Fed.  1,  77  C.  C.  A.  267. 

166.  An    unconstitutional    discrimination 


CONSTITUTIONAL  LAW,  II.  a,  1. 


545 


in  favor  of  municipal  corporations  is  not 
effected  by  a  statute  requiring  notice  to 
be  given  to  them  in  case  of  injury  through 
defective  ways  within  their  limits,  before 
an  action  can  be  maintained  therefor,  al- 
though such  notice  is  not  required  in  cases 
of  action  for  injury  against  individuals. 
Tonn  V.  Helena,  36:  1136,  111  Pac.  715,  42 
Mont.    127.  (Annotated) 

167.  No  constitutional  right  of  a  holder 
of  property  within  a  particular  territory  is 
infringed  by  its  annexation  to  a  municipali- 
ty without  first  consulting  him,  even  though 
the  annexation  is  made  to  depend  upon  the 
consent  of  a  selected  class  to  which  he  does 
not  belong.  Carrithers  v.  Shelbvville,  17: 
421,  104  S.  W.  744,  126  Ky.  769.  " 

(Annotated) 

168.  Exempting  a  particular  mimicipality 
from  liability  for  injuries  caused  by  defects 
in  highways  violates  a  constitutional  pro- 
vision prohibiting  the  granting  of  special 
privileges  and  immunities.  Fleming  v. 
Memphis,  42:  493,  148  S.  W.  1057,  126  Tenn. 
331.  (Annotated) 
Officers  and  elections. 

Due  process  of  law  as  to,   see  infra,  II.  b, 

6. 
Constitutional  requirement  of  uniformity  of 

election  laws,  see  Ei.ECTioxs,   18. 
Special  legislation  as  to,  see  Statutes,  181, 

184,   185. 
See  also  Elections,  2-4. 

169.  The  privileges  and  immunities  of  cit- 
izens of  the  United  States  protected  by  the 
Federal  Constitution  do  not  include  the 
rights  of  citizens  of  a  state  to  hold  office. 
Shaw  V.  Marshalltown,  10:  825,  104  N.  W. 
1121,    131   Iowa,   128. 

170.  The  privileges  and  immunities  of  citi- 
zens which  a  state  Constitution  protects 
against  discrimination  do  not  include  the 
right  to  hold  a  minor  municipal  office.  Shaw 
v.  Marshalltown,  10:825,  104  N.  W.  1121, 
131  Iowa,  128. 

171.  A  statute  giving  preference  to  vet- 
eran soldiers  in  making  appointments  to 
minor  offices  is  not  invalid  as  depriving  oth- 
er citizens  of  equal  privileges  and  immu- 
nities. Shaw  V.  Marshalltown,  10:  825,  104 
N.   W.    1121,   131   Iowa,   128.      (Annotated) 

1 72.  Making  appointment  to  public  office 
depend  upon  fitness,  to  be  ascertained  by 
competitive  examination  as  far  as  possible, 
does  not  create  an  unconstitutional  dis- 
crimination between  different  classes  of 
citizens  in  regard  to  the  right  to  enter 
upon  and  continue  in  the  public  service, 
since  the  right  to  hold  public  office  is  not 
a  natural  right  of  the  citizens  or  one  guar- 
anteed to  him  by  the  Constitution.  State 
ex  rel.  Buell  v.  Frear,  34:  480,  131  N.  W. 
832,  146  Wis.  291. 

17'3.  A  statute  requiring  the  members  of 
a  commission  to  be  appointed  from  the  two 
dominant  politica'  parties  is  not  void  as 
granting  special  privileges  or  immunities. 
State  ex  rel.  Jones  v.  Sargent,  27:  719,  124 
N.  W.  339,  145  Iowa,  298.  (Annotated) 

174.  A  provision  that  a  commission  to 
have  charge  of  a  municipal  hospital  shall 
be  bi-partisan,  and  that  its  members  shall 
Digest  1-52  L.RJk.(N.S.) 


be  chosen  from  the  two  dominant  parties  iu 
the  municipality  by  name,  does  not  violate 
a  constitutional  provision  that  all  men  are 
equal  and  that  no  grant  of  exclusive  privi- 
lege sliall  be  made  to  any  man,  on  the 
ground  that  it  requires  a  political  test  for 
office  and  creates  special  privileges  in  those 
made  eligible  to  appointment.  Render  v. 
Louisville,  32:  530,  134  S,  W.  45S,  142  Ky. 
409. 

3  75.  The  14th  and  loth  Amendments  to 
the  United  States  Constitution  do  not  limit 
the  power  of  a  state  legislature  to  prescribe 
the  qualification  of  voters  at  a  local-option 
election.  Willis  v.  Kalmbach,  21:  1009,  64 
S.  E.  342,  109  Va.  475. 
Smoke. 

176.  The  fact  that  a  prohibition  of  the 
use  of  soft  coal  in  locomotives  does  not  ap- 
ply to  stationary  engines  does  not  make 
such  prohibition  partial  legislation;  there 
being  obvious  differences  betweeH  the  two 
classes  of  engines  in  respect  to  the  ten- 
dency that  burning  soft  coal  has  to  cause 
a  smoke  nuisance,  and  other  appropriate 
legislation  having  been  enacted  by  the  city 
to  prevent  the  emission  of  dense  smoke  by 
stationary  plants.  State  v.  Chicago,  M.  & 
St.  P.  R.  Co.  33:  494,  130  N.  W.  545,  114 
Minn.    122. 

Eminent  domain. 

Due  process  of  law  as  to,  see  infra,  II.  b, 
2,  b. 

177.  Statutory  authority  to  take  under 
the  power  of  eminent  domain  a  specified 
parcel  of  property  is  not  unconstitutional 
class  legislation.  Southern  R.  Co.  v.  Mem- 
phis 41:  828,  148  S.  W.  662,  126  Tenn.  267. 
Building  regulations. 

Due  process   of   law   as  to,   see   infra,   379- 

381,   518. 
Police  power  as  to,  see  infra,  660-663. 
Regulations    as    to    piling    of    lumber    near 

buildings,  see  infra,  197. 

178.  The  exception  of  churches  in  a  stat- 
ute limiting  the  height  of  buildings  in  a 
city  does  not  deprive  the  owners  of  private 
property  of  the  equal  protection  of  the 
laws.  Cochran  v.  Preston,  23:  1163,  70  Atl. 
113,  108  Md.  220. 

179.  The  owners  of  buildings  on  the  high- 
er ground  are  not  deprived  of  the  equal  pro- 
tection of  the  laws  by  a  statute  limiting 
the  height  of  buildings  to  a  certain  distance 
above  a  point  located  on  the  high  ground 
of  a  city,  although  the  buildings  on  lower 
ground  might  exceed  theirs  in  the  actual 
height  from  the  ground.  Cochran  v.  Pres- 
ton, 23:  1163,  70  Atl.  113,  108  Md.  220. 
Assignment  of  xirages  or  salary. 

Due  process  of  law  as  to,  see  infra,  519. 

180.  A  statute  making  void  assignments 
of  wages  or  salaries  when  given  as  security 
for  loans  tainted  with  usury  is  invalid 
where  no  such  provision  is  made  with  re- 
spect to  other  instruments  or  conveyances 
given  to  secure  such  debts.  Massie  v.  Cess- 
na, 28:  1108,  88  N.  E.  152,  239  111.  352. 

181.  Exempting  loans  made  by  national 
banks  and  certain  institvKtions  under  the 
supervision  of  the  bank  commissioner,  from 
the  operation  of  a  statute  requiring  assign- 
35 


546 


CONSTITUTIONAL  LAW,  II.  a,  1. 


ments  of  future  wages  to  secure  small  loans 
to  be  accepted  in  writing  and  recorded  to 
be  valid,  does  not  deprive  other  lenders  of 
the  equal  protection  of  the  laws.  Mutual 
Loan  Co.  v.  Martell,  43=  746,  86  N.  E.  916, 
200  Mass.  482. 
Garnishment  of  vrages. 

182.  Restraining  a  resident  creditor  from 
proceeding  in  another  state  to  reach  wages 
of  his  debtor,  who  resides  in  the  same  state 
with  himself,  in  violation  of  its  exemption 
laws,  does  not  violate  constitutional  pro- 
visions requiring  each  state  to  give  full 
faith  and  credit  to  the  judicial  proceedings 
of  other  states,  or  entitling  citizens  of  each 
state  to  the  privileges  and  immunities  of 
the  several  states.  Wierse  v.  Thomas,  15: 
1008,  59  S.  E.  58;  145  N.  C.  261. 

( Annotated ) 

183.  A  statute  exempting  the  wages  of 
railroad  employees  from  garnishment  is 
not  one  for  the  benefit  of  the  railroad 
companies,  so  as  to  render  it  unconstitu- 
tional in  granting  them  special  favors. 
White  V.  Missouri,  K.  &  T.  R.  Co.  29:  874, 
130  S.  W.  325,  230  Mo.  287. 

184.  A  statute  forbidding  garnishment  of 
the  wages  of  railroad  employees  under  $200 
in  value,  until  a  judgment  has  been  recov- 
ered against  the  debtor,  is  not  unconstitu 
tional  class  legislation,  although  the  same 
prohibition  does  not  apply  to  other  classes 
of  employees,  nor  when  the  wages  due  are 
over  the  prescribed  amount.  White  v.  Mis- 
souri, K.  &  T.  R;  Co.  29:  874,  130  S.  W.  325, 
230  Mo.  287. 

Fishing. 

See  also  supra,  175. 

185.  An  exclusive  right  of  fishery  cannot 
be  granted  by  the  legislature  to  a  shore 
owner  in  the  tide  land  in  front  of  his  prop- 

■  erty,  where  the  Constitution  provides  that 
no  law  shall  be  passed  granting  to  any 
citizen  any  privilege  which  upon  the  same 
terms  shall  not  equally  belong  to  all  citi- 
zens. Hume  V.  Rogue  River  Packing  Co. 
31:  396,  92  Pac.  1065,  96  Pac.  865,  51  Or. 
237. 

186.  A  state  does  not  unconstitutionally 
impair  the  privileges  or  immunities  of  any 
of  its  citizens  by  prohibiting  the  taking  of 
fish  in  the  waters  of  a  certain  harbor,  while 
permitting  them  to  be  taken  in  other  waters 
of  the  state.  State  v.  Tice,  41 :  469,  125  Pac. 
168,  69  Wash.  403.  (Annotated) 
Follntion  of  xrater. 

187.  A  statute  confining  liability  for  de- 
positing sawdust,  shavings,  and  mill  refuse 
in  the  streams  to  operators  of  mill  does 
not  discriminate  against  them  so  as  to  ren- 
der it  unconstitutional  as  depriving  them 
of  the  equal  protection  of  the  laws.  State 
V.  Haskell,  34:  286,  79  Atl.  852,  84  Vt.  429. 
Pumping  mineral  traters  and  gas. 

188.  A  statute  forbidding  the  pumping  of 
min«ral  water  and  gas  arising  therefrom 
from  a  common  reservoir  is  not  invalid  as 
contravening  the  constitutional  provision 
guaranteeing  equal  protection  of  laws,  be- 
cause it  is  applied  only  to  wells  bored  into 
rock,  where  the  conditions  are  such  that 
pumping  in  the  rock  wells  is  less  needful 
Dieest  1-52  L.R.A.(N.S.) 


than  in  those  sunken  in  dirt,  while  it  is 
much  more  exhaustive  and  destructive  of 
common  rights.  Hathom  v.  Natural  Car- 
bonic Gas  Co.  23:  436,  87  N.  E.  504,  194 
N.  Y.  326.  (Annotated) 

Cutting    trees    on    wild    lands. 

189.  Regulating  or  prohibiting  the  cutting 
of  trees  on  wild  or  uncultivated  lands  for 
the  purpose  of  protecting  the  water  sup- 
ply of  the  state  is  not  a  denial  of  the  equal 
protection  of  the  laws,  since  the  classifi- 
cation is  based  on  real  difi'erences  in  the  na- 
ture, situation,  and  condition  of  things. 
Opinion  of  Justices,  19:  422,  69  Atl.  627, 
103  Me.  506.  (Annotated) 
Marriage. 

190.  A  statute  requiring  from  men  only 
a  certificate  of  freedom  from  venereal  dis- 
ease as  a  condition  to  marriage  is  not  void 
as  granting  special  privileges  or  immuni- 
ties. Petersen  v.  Widule,  52:  778,  147  N. 
W.  966,  157  Wis.  641. 
Miscellaneous. 

See  also  infra,  537. 

191.  Requiring  persons  keeping  more  than 
one  animal  in  a  stable  to  connect  the 
stable  with  the  city's  water  and  sewer 
system  and  take  certain  precautions  as  to 
cleansing  the  premises  which  are  not  re- 
quired of  persons  keeping  only  one  animal 
is  an  unreasonable  classification.  Mobile 
V.  Orr,  45:  575,  61  So.  920,  181  Ala.  308. 

192.  Although  the  sale  of  alcohol  for 
certain  specified  purposes,  under  certain 
restrictions,  is  not  unlawful,  the  Georgia 
prohibition  law,  act  1907,  p.  81,  which  pro- 
hibits entirely  the  manufacture  of  alcohol, 
is  not  violative  of  the  Federal  constitu- 
tional provision  that  no  state  shall  make 
or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of 
tht  United  States,  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection 
of  the  law.  Cureton  v.  State,  49:  182,  70 
S.  E.  332,  135  Ga.  660. 

193.  A  statutory  prohibition  against  the 
transportation  without  the  state,  of  the 
waters  of  lakes,  pends,  rivers,  and  streams, 
does  not  infringe  U.  S.  Const,  art.  4,  §  2,  pro- 
viding that  "the  citizens  of  each  state  sliall 
be  entitled  to  all  privileges  and  immunities 
of  citizens  in  the  several  states."  McCarter 
ex  rel.  Kummel  v.  Hudson  Countv  Water 
Co.  14:  197,  65  Atl.  489,  70  N.  J.  Eq.  695. 

194.  Requiring  compensation  from  the  es- 
tates of  persons  confined  in  a  state  hospital 
for  insane  only,  and  not  of  those  confined 
elsewhere,  is  not  unconstitutional  class  leg- 
islation. Napa  State  Hospital  v.  Dasso, 
18:  643,  96  Pac.  355,  153  Cal.  698. 

195.  A  municipal  ordinance  declaring  it 
unlawful  for  any  person  to  bring  into 
the  town  the  carcass  or  dead  body  of  any 
animal  intended  for  burial,  cremation,  or 
manufacture  into  fertilizer,  but  not  prohibit- 
ing the  bringing  in  of  such  dead  bodies  for 
other  purposes,  nor  making  it  unlawful  to 
manufacture  fertilizer  in  the  town  from 
such  materials,  discriminates  against  valu- 
able articles  used  in  lawful  trade  and  busi- 
ness, on  the  groimd  of  location  with  reference 
to  municipal   lines,   and  ia  void,  although 


CONSTITUTIONAL  LAW,  II.  a,  2,  3. 


547 


but  for  such  discrimination  it  might  be  val- 
id as  an  ordinance  protective  of  health  and 
restrictive  of  an  injurious  and  offensive  busi- 
ness. Fulton  V.  Norteman,  g:  1196,  55  S.  E. 
658,  60  W.  Va.  562.  (Annotated) 

196.  The  rule  of  a  railroad  commission 
making  a  common  carrier  liable  for  unrea- 
sonably detaining  loaded  freight  cars  is  not 
an  arbitrary  or  unjust  discrimination 
against  freight  not  so  loaded.  State  v.  At- 
lantic C.  L.  R.  Co.  32:  639,  47  So.  969,  50 
Fla.  617. 

197.  Making  an  ordinance  forbidding  the 
piling  of  lumber  for  storage  within  a  cer- 
tain distance  of  buildings  on  neighboring 
property  applicable  only  to  buildings  erect- 
ed before  the  establishment  of  the  lumber 
yard  does  not  constitute  an  unconstitution- 
al discrimination  against  the  owners  of 
vacant  property.  Chicago  v.  Ripley,  34: 
1186,  94  N.  E.   931,  249  111.  466. 

2.  As  to  nonresidents  or  aliens;  foreign 
corporations. 

a.  Nonresidents. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Who  may  raise  question  of  unconstitution- 
al discrimination,  see  Action  or  Suit, 
46,  47. 

Right  to  act  as  executor  as  privilege  or 
immunity,  see  Executors  and  Admin- 
istrators, 7. 

198.  A  statute  which  forbids  all  citizens 
of  the  state  not  residents  of  a  specified  coun- 
ty from  hunting  in  such  county  without  a 
license,  while  no  license  is  required  of  the 
residents  thereof,  and  which  does  not  for- 
bid such  residents  from  hunting  in  any 
other  county  without  a  license,  violates  the 
constitutional  guaranty  of  the  equal  pro- 
tection of  the  laws,  since,  as  the  qualified 
property  existing  in  the  wild  game  in  a 
state  belongs  to  all  the  people  thereof  in 
their  collective  sovereign  capacity,  it  places 
a  burden  upon  a  part  only  of  the  people 
who  are  entitled  to  the  same  rights  and 
privileges.  Harper  v.  Galloway,  26:  794,  51 
So.  226,  58  Fla.  255.  (Annotated) 

199.  The  legislature  cannot,  where  the 
Constitution  prohibits  it  from  denying  to 
any  person  withi'  the  jurisdiction  of  the 
state  the  equal  protection  of  the  laws,  con- 
fer power  upon  the  authorities  of  the  coun- 
ty to  protect  the  hsh  within  the  county  for 
the  benefit  of  the  inhabitants  of  such  coun- 
ty, and  exclude  residents  of  other  counties 
from  taking  them.  State  v.  Hill,  31:  490, 
53  So.  411,  98  Miss.  142. 
Regulation      of      business      generally; 

licenses. 
Foreign  corporations,  see  infra,  II.  a,  2,  c. 

200.  Requiring  only  agents  who  sell  trees 
grown  in  other  states  to  carry  duplicates  of 
the  principal's  permit  illegally  discrimi- 
nates between  resident  and  nonresident 
dealers.  State  ex  rel.  Hawley  v.  Nelson, 
15:  138,  115  N.  W.  93,  22  S.  D.  23. 
Digest   1-52  I^R.A.(N.S.) 


201.  A  state  statute  imposing  a  heavy  li- 
cense tax  upon  the  right  to  canvass  from 
house  to  house  for  a  certain  limited  num- 
ber of  articles  not  produced  or  manufac- 
tured within  the  state,  and  not  injurious  to 
health  or  morals,  for  the  apparent  purpose 
of  favoring  resident  mercliants  with  estab- 
lished places  of  business,  violates  the  pro- 
visions of  the  Federal  Constitution  against 
abridging  the  privileges  or  immunities  of 
citizens  of  the  United  States,  and  denying 
equal  protection  of  the  laws.  State  v.  Bay- 
er, 19:  297,  97  Pac.  129,  34  Utah,  257. 

202.  Requiring  a  residence  within  the 
state  for  two  years  as  a  condition  for  the 
granting  of  a  license  to  sell  intoxicating 
liquor  does  not  deprive  the  citizens  of  an- 
other state  of  the  privileges  and  imnuuiities 
and  equal  protection  of  the  laws  guaranteed 
them  by  the  Federal  Constitution.  De 
Grazier  v.  Stephens,  16:  1033,  105  S.  W.  992, 
101  Tex.  194.  (Annotated) 

b.  Aliens. 

(See   also    same   heading    in   Digest   L.R.A. 

1-70.) 

202a.  A  statute  which,  in  effect,  prohibits 
an  alien  from  engaging  in  the  business  of 
trafficking  in  intoxicating  liquors,  enacted 
in  the  exercise  of  the  police  power  of  the 
state,  is  not  in  contravention  of  the  14tii 
Amendment  to  the  Federal  Constitution. 
Bloomfield  v.  State,  41 :  726,  99  N.  E.  309, 
86  Ohio  St.  253. 

c.  Foreign  corporations. 

See  also  infra,  207. 

203.  Corporations  are  not  within  the  pro- 
tection of  the  clause  of  the  Federal  Consti- 
tution forbidding  the  denial  to  citizens  of 
other  states  of  privileges  and  immunities 
granted  to  citizens  of  the  state.  Schmidt 
V.  Indianapolis,  14:  787,  80  N.  E.  632,  168 
Ind.  631. 

204.  The  provision  of  W.  Va.  Acts  1905, 
chap.  39,  p.  401,  requiring  every  foreign  cor- 
poration doing  business  in  the  state,  and 
every  nonresident  domestic  corporation  do- 
ing business  in  ti.e  state,  to  appoint  the 
state  auditor  its  attorney  in  ^  ct  to  ac- 
cept service  of  process  and  notice  in  the 
state  for  it,  is  not  invalid  as  taking  prop- 
erty without  due  process  of  law,  or  as  deny- 
ing such  corporations  the  equal  protection 
of  the  law.  State  v.  St.  Mary's  Franco- 
American  Petroleum  Co.  i:  558,  51  S.  E.  865, 
58  W.  Va.    108.  (Annotated) 

3.     As     to     corporations,     associations, 
and  carriers. 

a.  In  general. 

(See   also   same   heading   in  Digest   L.R.A. 
1-70.) 

Foreign  corporations,   see   supra,   II.   a,  2, 
c. 


548 


CONSTITUTIONAL  LAW,  II.  a,  3. 


Class  legislation  as  to  employees  of,  see  in- 
fra,  II.   a,   5,   c. 

Due  process  of  law  as  to,  see  infra,  464, 
465. 

Police  power  as  to,  see  infra,  697-699. 

Impairment  of  contract  obligations,  see 
infra,  797-800. 

Special  legislation  as  to,  see  Statutes,  168. 

205.  Providing  for  the  enforcement  of  me- 
chanics' liens  against  the  property  of  pub- 
lic service  corporations,  not  by  writ  of 
levari  facias,  as  in  case  of  liens  against 
other  property,  but  by  special  fieri  facias, 
which  seizes  tlie  property  as  a  whole  so  as 
not  to  stop  the  operations  of  the  corpora- 
tion and  defeat  its  object,  is  special  legisla- 
tion and  invalid.  Vulcanite  Paving  Co.  v. 
Philadelphia  Rapid  Transit  Co.  17:  884,  69 
Atl.  1117,  220  Pa.  603. 

206.  Excepting  from  a  constitutional  pro- 
vision imposing  stockholders'  liabilities  for 
debts  of  the  corporation,  corporations  en- 
gaged in  manufacturing  and  mechanical 
business,  does  not  violate  the  equality  clause 
of  the  Federal  Constitution.  Way  v.  Bar- 
ney, 38:  648,  133  N.  W.  801,  116  Minn.  285. 

207.  The  constitutional  privileges  and  im- 
munities of  corporations  are  not  infringed 
by  a  statute  providing  for  the  dissolution 
of  domestic  corporations  and  the  banish- 
ment of  foreign  ones,  in  addition  to  the 
imposing  of  a  fine,  for  the  commission  of 
certain  acts  Vending  to  establish  a  monop- 
oly, while  individuals  committing  the  same 
acts  are  merely  fined, — at  least  where  the 
Constitution  authorizes  forfeiture  of  fran- 
chises of  corporations  guilty  of  monopoly. 
State  V.  Central  Lumber  Co.  42:  804,  123 
N.  W.  504,  24  S.  D.  136. 

b.  Railroad  companies;  carriers. 

•yflfec  also   same   heading   in   Digest   L.R.A. 
1-10.) 

Garnishment  of  wages  of  railroad  employee, 
see  supra,  183,  184. 

Foreign  corporations,  see  supra,  II.  a,  2,  c. 

Class  legislation  as  to  employees  of,  see 
infra,  II.  a,  5,  c. 

Due  process  of  law  in  regulation  of  busi- 
ness of,  see  infra,  437-448,  460. 

Due  process  of  law  as  to  right  of  action  or 
defense  against,  see  infra,  II.  b,  7,  b 
(1)    (b). 

Police  power  as  to,  see  infra,  683-686. 

Fences. 

208.  Compelling  a  particular  railroad  to 
fence  its  tracks  when  other  railroads  in 
the  state  and  count}  are  not  required  to 
do  so  does  not  deny  it  the  equal  protection 
of  the  laws,  since  the  legislature  will  be 
presumed  to  have  determined  that  the  con- 
ditions affecting  it  are  such  as  to  call  for 
regulations  different  from  those  applying 
to  other  roads,  and  the  classification  cannot 
therefore  be  said  to  be  arbitrary.  Missouri 
&  N.  A.  R.  Co.  V.  State,  31:  861,  121  S.  W. 
930,  92  Ark.  1.  (Annotated) 
Digest  1-52  IfcR.A.(N.S.) 


Headlights  on  locomotives. 

Due  process  as  to,  see  infra,  438,  439. 

209.  A  statute  requiring  railroads  to 
maintain  electric  headlights  on  their  loco- 
motives is  not  unconstitutional  as  depriv- 
ing them  of  the  equal  protection  of  the 
laws,  because  it  does  not  apply  to  receiver-j 
of  railroads.  Atlantic  Coast  Line  R.  Co. 
V.  State,  32:  20,  69  S.  E.  725,  135  Ga.  545. 

210.  Exempting  tramroads,  mill  roads, 
and  roads  engaged  principally  in  lumber 
and  logging  transportation  in  connection 
with  mills,  from  the  operation  of  a  statute 
requiring  the  maintenance  of  electric  head- 
lights on  locomotives,  does  not  render  it 
unconstitutional  as  depriving  railroads  of 
the  equal  protection  of  the  laws.  Atlantic 
Coast  Line  R.  Co.  v.  State,  32:  20,  69  S.  E. 
725,  135  Ga.  545. 

Speed. 

211.  A  statute  prescribing  a  minimum 
rate  of  speed  at  which  ail  live  stock  in  carload 
lots  may  be  transported  between  intrastate 
points  does  not  constitute  unlawful  class 
legislation.  Cram  v.  Chicago,  B.  &  Q.  R. 
Co.  26:  1022,  122  N.  W.  31,  84  Neb.  607, 
123  N.  W.  1045,  85  Neb.  586. 

Rates. 

Due  process  of  law  as  to,  see  infra,  493-498. 
Jurisdiction  of  Federal  court  of  question  as 
to,  see  Courts,  251. 

212.  A  railroad  company  is  denied  the 
equal  protection  of  the  laws  by  a  state  stat- 
ute requiring  it  to  transport  militiamen 
when  in  the  performance  of  military  duty, 
at  less  than  the  reasonable  rate  of  trans- 
portation which  has  been  fixed  by  the  state 
officials.  Re  Gardner,  33:  956,  113  Pac. 
1054,  84  Kan.  264.  ( Annotated ) 

213.  A  statute  providing  for  the  estab- 
lishment of  rates  for  railroad  transportation 
without  giving  the  corporation  an  opportu- 
nity to  be  heard,  which  fixes  penalties  for 
disobedience  of  its  provisions  by  fines  so 
enormous  and  imprisonment  so  severe  as  to 
intimidate  the  corporations  and  their  nfli- 
cers  from  resorting  to  the  courts  to  test  the 
validity  of  the  rates,  is  unconstitutional,  as 
depriving  the  corporations  of  the  equal  pro- 
tection of  the  laws.  Ex  parte  Young,  13: 
932,  28  Sup.  Ct.  Rep.  441,  209  U.  S.  123, 
52  L.  ed.  714. 

214.  A  statutory  provision  requiring  rail- 
road companies  to  sell  mileage  books  at  less 
than  the  rates  regularly  charged  for  trans- 
portation is  class  legislation,  and  not  for 
the  benefit  of  the  whole  people,  and  is  there- 
fore void  as  depriving  the  corporation  of 
its  property  without  due  process  of  law, 
and  of  the  equal  protection  of  the  laws. 
Com.  ex  rel.  Anderson  v.  Atlantic  Coast  Line 
R.   Co.   7:  1086,  55   S.   E.   572,   105  Va.   61. 

{ Annotated ) 

215.  The  provision  of  the  New  Jersey  gen- 
eral railway  law  (P.  L.  1903,  p.  665,  §  38) 
authorizing  railroads  constructed  and  oper- 
ated under  a  special  charter  to  charge  Vs 
cent  more  per  mile  than  railroads  organized 
under  the  general  act  are  permitted  to 
charge,  is  unconstitutional  as  a  discrimi- 
nation based  upon  an  illusory  qmalification. 


CONSTIITJTIONAL  LAW,  II.  a,  4. 


549 


Shelton  v.  Erie  R.  Co.   (N.  J.  Err.  &  App.) 
9;  727,  66  Atl.  403,  73  N.  J.  L.  558. 

216.  Public-school  children  form  a  class 
for  which  the  legislature  may  properly  pro- 
vide a  special  rate  of  street  car  fare.  Com. 
V.  Interstate  Consol.  Street  R.  Co.  11:  973, 
73  N.  E.  530,  187  Mass.  436.      (Annotated) 

217.  Sufficient  diiTerence  in  conditions 
may  exist  to  warrant  the  legislature  in  ex- 
empting a  particular  street  car  company 
from  a  statutory  provision  requiring  the 
carriage  of  school  children  at  half  the  reg- 
ular rates,  without  depriving  the  other 
lines  of  the  equal  protection  of  the  laws. 
Com.  V.  Interstate  Consol.  Street  R.  Co. 
11:  973,  73  N.  E.  530,  187  Mass.  436. 

Sale  of  tickets. 

Due  process  of  law  as  to,  see  infra,  391, 
504-507,   563. 

Police  power  as  to,  see  infra,  739-744. 

Impairment  of  contract  obligations  by  stat- 
ute as  to,  see  infra,  792. 

218.  An  unconstitutional  special  privi- 
lege is  not  granted  to  railroad  companies  by  a 
statute  forbidding  brokers  to  traffic  in  their 
tickets,  which  requires  them  to  commission 
all  persons  who  shall  sell  their  tickets,  and 
coiiipeis  tU'iin  to  redeem  unused  tickets. 
Ex  parte  O'Neill,  3:  558,  83  Pac.  104,  41 
Wash.  174.  (Annotated) 

219.  An  unlawful  grant  of  special  privi- 
leges is  not  effected  by  a  statute  limiting 
the  sale  of  railroad  tickets  to  railroads  and 
their  duly  authorized  agents.  State  v. 
Tliompson,  4:  480,  84  Pac.  476,  47  Or.  492. 
Defaults  of  connecting  carriers. 

220.  Requiring  a  carrier  which  recognizes 
a  through  shipping  contract  to  become  lia- 
ble for  defaults  of  connecting  lines  does  not 
deny  ife  the  equal  protection  of  the  laws. 
Venning  v.  Atlantic  Coast  Line  R.  Co.  12: 
1217,  58  S.  E.  983,  78  S.  C.  42. 

4.  As  to  taxes  and  assesstnents. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

As  to  license  taxes,  see  infra,  II.  a,  5. 
Due  process  of  law  as  to,  see  infra,  II.  b,  3. 
Police   power   as   to   local   assessments,   see 

infra,  642,  642a. 
Afl  to  uniformity  of  poll  tax,  see  Poll  Tax, 

2. 
As  to  uniformity  of  assessments  generally, 

see   Public   Improvements,   29-31. 
Special  legislation  as  to,  see  Statutes,  179. 
As  to  equality  and  uniformity  of  taxation, 

see  Taxes,  I,  c,  V.  b,  VI.  b. 
Aa  to  taxes,  generally,  see  Taxes. 

221.  A  citizen  of  a  state  cannot  rely  on  the 
Federal  Constitution  as  a  basis  for  question- 
ing a  tax  law  on  the  ground  of  inequality 
in  the  burden  resulting  from  its  operation. 
State,  Egan  v.  McCrillis,  9:  635,  66  Atl.  301, 
2i8  R.  I.  165. 

222.  The  requirement  by  the  Federal  Con- 
stitution   of   equal    protection    of    the    laws 
has   no  application   to   the   method   of   dis-  ' 
tribution  of  road  taxes.     State  v.  Wheeler,  I 
5:  1139,  53  S.  E.  358,  141  N.  C.  773. 

Digest  1-52  I<.R.A.(N.S.) 


223.  A  state  statute  authorizing  the  tax- 
ation of  chattels  real  is  not  in  violation  of 
the  14th  Amendment  to  the  United  States 
Constitution  as  wanting  due  process  of  law, 
or  denying  equal  protection  of  the  law. 
Harvev  Coal  &  C.  Co.  v.  Dillon,  6:  628,  53 
S.  E.  928,  59  W.  Va.  605. 

224.  Limiting  a  poll  tax  to  male  citizens 
between  the  ages  of  twenty-one  and  fifty 
years  does  not  render  it  obnoxious  to  con- 
stitutional provisions  forbidding  the  grant- 
ing of  special  privileges  and  immunities,  or 
the  taking  of  property  without  due  process 
of  law.  Thurston  County  v.  Tenino  Stone 
Quarries,  9:  306,  87  Pac.  634,  44  Wash.  351. 

225.  Equal  protection  of  the  laws  is  de- 
nied by  a  statute  requiring  as  a  matter  of 
taxation  a  set-ofJ'  against  the  value  of  the 
property  taken  for  a  public  improvement  of 
the  benefit  to  the  remaining  land  of  the 
property  owner,  where  no  assessment  is  Maid 
upon  property  owners  in  the  neighborhood, 
none  of  whose  property  is  taken  by  the  im- 
provement. New  York  v.  Consolidated  Gas 
Co.  16:  335,  83  N.  E.  299.  190  N.  Y.  350. 

226.  A  statute  imposing,  for  the  benefit 
of  the  public,  a  tax  of  a  certain  per  cent 
upon  every  judgment  entered  in  a  court  of 
record,  is  not  valid,  treated  either  as  part 
of  the  costs  to  be  paid  by  defendant  or  as 
a  penalty,  since  it  would  deprive  defendant 
of  the  equal  protection  of  the  laws.  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  Pritchard,  32: 
179,  133   S.   W.  176,  97  Ark.   100. 

(Annotated) 

Succession  tax. 

Due  process  of  law  as  to,  see  infra,  405- 
410. 

As  impairment  of  obligation  of  contract,  see 
infra,  774. 

Who  may  question  validity  of  statute  im- 
posing tax,  see  Action  or  Suit,  50. 

Uniformity  of  succession  tax  generally,  see 
Taxes,  V.  b. 

227.  That  a  statute  imposing  a  succession 
tax  will  operate  upon  all  successions  not 
closed  at  the  time  the  act  took  effect,  or 
thereafter  opened,  but  not  upon  those  which 
were  opened  and  closed  before  that  date, 
does  not  render  it  invalid  for  want  of  uni- 
formity and  equality.  Succession  of  Levy, 
8:  1 1 80,  39  So.  37,  115  La.  377. 

228.  Subjecting  to  the  tax  authorized  by 
N.  Y.  Laws  1896,  chap.  908,  a  transfer  of 
property  by  deed  intended  to  take  effect  at 
the  death  of  the  grantor,  without  taxing 
transfers  intended  to  take  effect  upon  the 
death  of  some  person  other  than  the  grant- 
or, or  upon  the  happening  of  a  certain  or 
contingent  event,  does  not  involve  such  a 
discrimination  as  to  deny  the  equal  protec- 
tion of  the  laws  guaranteed  by  the  14th 
Amendment  to  the  Federal  Constitution. 
Keeney  v.  Comptroller,  38:  1139,  32  Sup.  Ct. 
Rep.  105,  222  U.  S.  525,  56  L.  ed.  299. 

229.  An  exemption  from  a  collateral  in- 
heritance tax  when  the  estate  is  less  than 
a  certain  value  is  not  an  unconstitutional 
discrimination,  which  will  invalidate  tlie 
tax.  Rodman  v.  Com.  ex  rel.  Selligniaii, 
33:  592,  113  S.  W.  61,  130  Ky.  88. 

230.  The  general  constitutional  guaranty 


550 


CONSTITUTIONAL  LAW,  II.  a,  5. 


of  equality  and  equal  protection  of  the  laws 
is  not  infringed  by  an  increased  rate  of 
taxation  upon  inheritances  as  the  amount  of 
the  inheritance  increases.  Nunnemacher  v. 
State,  9:  121,  108  N.  W.  627,  129  Wis.  190. 
231.  An  inheritance  tax  law  which  grad- 
uates the  rates  according  to  a  classification 
of  the  persons  who  receive  the  property, 
and  makes  the  rates  progressive  according 
to  the  amount  received,  and  which  exempts 
estates  below  a  certain  amount  when  the 
beneficiaries  are  related  to  the  deceased 
within  certain  degrees,  does  not  violate  the 
Bill  of  Rights,  declaring  that  free  govern- 
ments are  instituted  for  the  equal  protec- 
tion and  benefit  of  the  people.  State  ex 
rel.  Ise  v.  Cline,  50:  991,  137  Pac.  932.  91 
Kan.  416.  (Annotated) 

Tax  on  dogs. 

Due  process  as  to,  see  infra,  536. 
Polite  power  as  to,  see  infra,  655. 
As  tax  for  public  purpose,  see  Taxes,  42. 

232.  A  statute  imposing  a  tax  on  dogs  to 
indemnify  the  owners  of  sheep  killed  by 
them  does  not  violate  a  constitutional  pro- 
hibition of  the  granting  of  exclusive  sepa- 
rate public  emoluments  or  privileges.  Mc- 
Glone  v.  Womack,  17:  855,  III  S.  W.  688, 
129  Ky.  274. 
Income  tax. 
Uniformity    of    income    tax,  generally,   see 

Taxes,  VI.  b. 
•  233.  A  graduated  income  tax  which  ex- 
empts incomes  under  a  specified  amount, 
and  increases  the  tax  as  the  income  reaches 
stated  amounts  above  that  sum,  does  not 
deny  taxpayers  the  equal  protection  of  the 
laws,  or  deprive  them  of  their  property 
without  due  process  of  law.  Alderman  v. 
Wells,  27:  864,  67  S.  E.  781,  85  S.  C.  507. 
'        '  ( Annotated ) 

3.  As  to  regulation  of  husiness;  license. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

As  to  nonresidents  or  aliens,  see  supra, 
200-202. 

Foreign  corporations,  see  supra,  II.  a,  2,  c. 

As  to  corporations,  associations  and  car- 
riers, see  supra,  II.  a,  3. 

Due  process  of  law  as  to,  see  infra,  II.  b,  4. 

Uniformity  and  equality  as  to  license,  see 
License,  II.  d. 

Special  legislation  as  to  license,  see  Stat- 
utes, 161, 

See  also  infra,  688. 

234.  A  statute  prohibiting  unfair  com- 
mercial discriminations  between  different 
sections,  communities,  or  localities  is  not 
unconstitutional  as  class  legislation.  State 
V.  Drayton,  23:  1287,  117  N.  W.  768,  82 
Neb.  254. 

235.  The  application  of  a  police  measu.o 
to  the  work  of  erection  or  demolition  of 
structures  having  iron  or  steel  framework, 
operation  of  elevators  in  constructing  or 
demolishing  buildings,  to  work  on  scaffolds 
Digest  1-52  L.R.A.(N.S.) 


or  about  electrical  currents  or  explosives, 
the  operation  of  railroads,  the  construc- 
tion of  tunnels,  and  work  carried  on  under 
conipres.sed  air,  is  not  a  denial  of  the  equal 
protection  of  tlie  laws,  as  being  an  arbitrary 
clas.sification.  Ives  v.  South  Buffalo  R.  Co, 
34:  162,  94   X.   E.   431,  201    N.   Y.   271. 

236.  No  unequal  grant  of  privileLfes  or 
immunities,  contrary  to  the  Constitution,  is 
effected  by  a  statute  requiring  contracts  to 
make  compensation  for  procuring  a  pur- 
chaser for  real  estate  to  be  in  writing. 
Selvage  v.  Talbott,  33:  973,  95  N.  E.  114,  175 
Ind.  648. 

237.  A  state  statute  requiring  contracts 
to  make  compensation  for  procuring  pur- 
chasers for  real  estate  to  be  in  Avriting  is 
not  forbidden  by  the  14th  Amendment  to 
the  Federal  Constitution,  since  that  Amend- 
ment was  not  intended  to  interfere  with 
the  police  power  of  the  states.  Selvage  v, 
Talbott.  33:  973,  95  N.  E.  114,  175  Ind.  648. 
Rate  of  interest. 

238.  A  statute  making  it  illegal  to  take 
more  than  a  specified  rate  of  interest  on 
loans  of  less  than  a  certain  amount  on 
household  goods,  and  the  tools  of  certain 
trades,  while  permitting  any  rate  which 
can  be  agreed  upon  to  be  taken  in  other 
cases,  is  unconstitutional  as  not  uniform  in 
operation.  Re  Sohncke,  2:  813,  82  Pac.  956, 
148  Cal.  262.  (Annotated) 
Barbers. 

Due  process  of  law  as  to,  see  infra,  431. 

239.  So  far  as  a  statute  regulating  barber 
colleges  forbids  them  to  charge  for  the  work 
of  students  and  to  display  any  sign  except 
the  mere  announcement  of  the  fact  that  it 
is  a  barber  college  tends  to  discourage  per- 
sons from  learning  the  trade  and  'creates 
a  monopoly,  it  violates  the  constitutional 
proiiibition  of  the  granting  of  special  rights, 
privileges,  and  immunities.  Moler  v.  Whis- 
man,  40:  629,  147  S.  W.  985,  243  Mo.  571. 
Moving  picture  machine  operators. 
Forbidding    operation    of,    on    Sunday,    see 

infra,  295. 
Due  process  of  law  as  to,  see  infra,  429. 

240.  A  statute  requiring  any  person  desir- 
ing to  engage  in  the  business  of  moving  pic- 
ture machine  operator  to  secure  a  license  is 
not  rendered  discriminatory  and  invalid  be- 
cause it  gives  those  engaged  in  the  business 
at  the  passage  of  the  statute  sixty  days  in 
which  to  secure  their  licenses.  State  ex  rel. 
Ebert  v.  Loden,  40:  193,  83  Atl.  564,  117  Md. 
373. 

241.  That  a  section  of  a  statute  requir- 
ing any  "such  person"  desiring  to  engage  in 
the  business  of  moving  picture  machine 
operator  to  obtain  a  license  follows  a  sec- 
tion dealing  with  persons  engaged  in  the 
business  at  the  passage  of  the  act  does  not 
confine  the  operation  of  the  statute  to  such 
persons  and  thereby  make  it  discriminatory, 
where  the  introductory  language  of  the 
statute  shows  that  it  is  to  apply  to  all  who 
wish  to  engage  in  such  business.  State  ex 
rel.  Ebert  v,  Loden,  40:  193,  83  Atl.  564,  IIT 
Md.  373, 

Electricians. 

Due  process  as  to,  see  infra,  43Q.        «.-r.  •  'r. 


CONSTITUTIONAL  LAW,  II.  a,  5. 


551 


242.  A  statute  permitting  the  lighting 
and  electric  railway  companies  and  the  de- 
partment of  police  and  public  buildings  of 
New  Orleans  to  employ  unlicensed  elec- 
tricians for  the  installation  and  mainte- 
nance of  their  "equipment  pole  line  services" 
and  "meters,"  which  work  is  important, 
while  others  can  employ  only  licensed  elec- 
tricians except  for  work  of  minor  impor- 
tance, denies  the  constitutional  right  to 
equal  protection  of  the  law.  State  v.  Gantz, 
24:  1072,  50  So.  524,  124  La.  535. 
Billiard  and  pool  tables. 

Due  process  of  law  as  to,  see  infra,  424. 
Police  power  as  to,  see  infra,  692. 

243.  A  municipal  ordinance  prohibiting 
the  keeping  of  billiard  or  pool  tables  for 
hire  or  public  use  does  not  deny  the  equal 
protection  of  the  laws  because  hotel  keepers 
are  permitted  to  maintain  a  billiard  or  pool 
room  in  which  their  regular  and  registered 
guests  may  play.  Murphy  v.  People,  41: 
153,  32  Sup.  Ct.  Rep.  697,  225  U.  S.  623,  56 
L.   ed.   1229. 

Dance  halls. 

Due  process  as  to,  see  infra,  422. 

Police  power  as  to,  see  infra,  695,  696. 

244.  An  ordinance  requiring  a  license  to 
conduct  a  public  dance  hall  while  permit- 
ting other  dances  to  be  conducted  without 
license  does  not  deprive  its  owner  of  the 
equal  protection  of  the  law.  Mehlos  v.  Mil- 
waukee, 51:  1009,  146  N.  W.  882,  156  Wis. 
591. 

245.  The  constitutional  guaranty  of 
equal  rights  is  not  infringed  by  a  police 
regulation  forbidding  the  permitting  of  any 
person  under  twenty-one  years  of  age  to 
be  or  remain  in  a  dance  hall,  on  the  ground 
that  it  discriminates  between  women  who 
have  arrived  at  the  age  of  majority  under 
the  age  of  twenty-one,  and  those  over  the 
age  of  twenty-one.  State  v.  Rosenfield, 
29:  331,  126  N.  W.  1068,  111  Minn.  301. 
Running  races. 

246.  A  statute  is  not  invalid  as  class  leg- 
islation because  it  prohibits  the  operation 
of  tracks  for  running  races  without  a  li- 
cense from  a  commission,  while  permitting 
trotting  races  and  fairs  at  which  races  are 
held  without  such  licenses.  State  Racing 
Commission  v.  Latonia  Agricultural  Asso. 
25:  905,  123  S.  W.  681,  136  Ky.  173. 
AVeight   of   bread. 

247.  Specifying  the  weight  of  loaves  of 
bread  to  be  sold  within  a  city  is  not  in- 
valid special  legislation,  if  it  applies  to 
all  dealers  in  that  product  alike.  Chicago 
V.  Schmidinger,  44:  632,  90  N.  E.  369,  243 
111.   167. 

Isabels    on   food   products    in   package 
form. 

248.  An  act  of  the  legislature  which  in 
eflfect  places  persons  who  manufacture  and 
sell,  or  who  sell  either  at  wholesale  or  re- 
tail, certain  specified  food  products  in  pack- 
age form,  not  put  up  by  retailers,  in  one 
class,  and  retailers  who  put  up  and  sell 
the  same  products  in  package  form  them- 
selves, in  another  class,  and  provides  that 
such  food  sold  in  package  form,  not  put  up 
Digest   1-52  I^R.A.CN.S.) 


by  the  retailer,  shall  bear  a  printed  label 
showing  net  weight  or  measure  of  the  con- 
tents, does  not  deprive  one  who  sells  a 
"misbranded"  package,  of  the  equal  pro- 
tection of  the  laws,  and  is  not  violative  of 
the  14th  Amendment  to  the  Constitution  of 
the  United  States.  Freadrich  v.  State,  34: 
650,   131   N.  W.   618,   89   Neb.  343. 

(Annotated) 
Sales  in  bulk. 

249.  The  prohibition  of  Okla.  Sess.  Laws, 
1903,  p.  249,  chap.  30,  §  1,  against  selling 
stocks  of  merchandise  in 'bulk  without  giv- 
ing notice  to  the  seller's  creditors  so  far  as 
the  purchaser  can,  with  reasonable  dili- 
gence, obtain  knowledge  of  them,  is  not  un- 
constitutional as  class  legislation,  nor  in- 
consistent with  the  organic  act,  §  6,  pro- 
hibiting the  passage  of  any  law  impairing 
the  right  to  private  property.  Williams  v. 
Fourth  Nat.  Bank,  2:334,  82  Pac.  496,  15 
Okla.  477.  (Annotated) 

250.  A  statute  declaring  to  be  fraudulent 
and  void  against  creditors  of  the  seller,  a 
sale  in  bulk  of  a  stock  of  merchandise,  or 
of  a  portion  of  it,  other  than  in  the  ordi- 
nary course  of  trade,  unless,  five  days  before 
its  consummation,  the  parties  shall  make 
an  inventory  of  the  quantity  and  cost  price 
to  the  seller  of  each  article,  and  the  pur- 
chaser shall  inquire  of  the  seller  the  name 
and  residence  of  each  of  his  creditors,  and 
notify  them  of  the  sale  and  cost  price  of 
the  stock  and  price  to  be  paid  therefor,  is 
unconstitutional  as  depriving  the  seller  of 
the  equal  protection  of  the  laws  and  of  lib- 
erty and  property  rights.  Wright  v.  Hart, 
2:  338,  75  N.  E.  404,  182  N.  Y.  330. 

( Annotated ) 
Use   of  flag. 
Due   process   of   law   as   to,   see  infra,   623, 

524. 
Police  power  as  to,  see  infra,  675. 
See  also  Flag. 

251.  That  a  state  statute  forbidding  the 
use  of  the  United  States  flag  for  advertising 
purposes  excepts  from  its  operation  any  act 
permitted  by  the  statutes  of  the  United 
States  or  by  the  Army  and  Navy  regula- 
tions, or  any  use  of  the  flag  for  purposes  of 
display  or  ornament,  disconnected  from  any 
advertisement,  does  not  render  the  act  ob- 
jectionable as  special  or  class  legislation. 
Halter  v.  State,  7:  1079,  105  N.  W.  298,  74 
Neb.  757.  (Annotated) 

252.  A  statute  forbidding  the  use  of  the 
flag  for  advertising  purposes  does  not 
abridge  the  privileges  or  immunities  of  citi- 
zens of  the  United  States,  in  contravention 
of  §  1  of  the  14th  Amendment  to  the  Fed- 
eral Constitution.  Halter  v.  State,  7:  1079, 
105  N.  W.  298,  74  Neb.  757.  (Annotated) 
Use  of  streets. 

Uniformity  and  equality  as  to  license,  see 
License,  107-110. 

253.  A  municipal  corporation  has,  in  view 
of  the  constitutional  prohibition  of  the 
granting  of  special  privileges,  no  power,  un- 
der its  statutory  authority  over  its  streets, 
to  grant  to  an  individual,  who  has  agreed 
to  place  receptacles  for  refuse  in  the  streets, 
the  exclusive  privilege,  as  his  compensation 


552 


CONSTITUTIONAL  LAW,  II.  a,  5. 


therefor,  of  using  them  for  advertising  pur- 
poses. People  ex  rel.  Healy  v.  Clean  Street 
Co.  9:  455,  80  N.  E.  298,  225  III.  470. 

( Annotated ) 

254.  A  municipal  ordinance  is  not  invalid 
as  unconstitutionally  granting  special  piivi- 
leges,  which  allows  the  municipality  to 
grant  special  permission  to  licensed  hack 
drivers  who  can  procure  the  consent  of  the 
abutting  property  owners,  to  stand  their 
vehicles  in  the  street  in  front  of  such 
property,  when  the  same  privilege  is  not 
granted  to  tliose  who  do  not  obtain  such 
consent.  McFall  v.  St.  Louis,  33:  471,  135 
S.   W.   51,  232  Mo.   716.  (Annotated) 

255.  A  tax  of  $50  per  year  for  the  privi- 
lege of  using  wagons  on  a  city's  streets  for 
delivering  coal  oil,  or  $25  for  using  ice 
wagons,  and  $10  or  less  for  using  all  other 
kinds  of  vehicles,  is  void  for  unreasonable 
discrimination,  under  a  constitutional  pro- 
vision that  no  privileges  or  immunities 
shall  be  granted  to  any  citizen  or  class  of 
citizens  which,  upon  the  same  terms,  shall 
not  equally  belong  to  all  citizens.  Waters- 
Pierce  Oil  Co.  V.  Hot  Springs,  16:  1035,  109 
S.  W.  293,  85  Ark.  509.  (Annotated) 
Insurance  agents. 

256.  Restricting  the  right  to  engage  in  an 
insurance  brokerage  business  to  those  who 
make  that  their  principal  business,  or  those 
engaged  in  the  real  estate  business,  deprives 
other  citizens  wishing  to  engage  in  that 
business  of  the  constitutional  liberty  and 
the  equal  protection  of  the  laws.  Hauser 
V.  North  British  &  Mercantile  Ins.  Co.  42: 
1 1 39,  100  N.  E.  52,  206  N.  Y.  455. 
Money  lenders. 

As  to  usury,  see  infra,  341-343. 
Due  process  as  to,  see  infra,  466. 
Special  legislation  as  to  rates    of    interest, 
see  Statutes,  167,  168. 

257.  A  statute  imposing  a  high  privilege 
tax  on  money  lenders  only  when  they  lend 
on  furniture,  wearing  apparel,  pianos,  sew- 
ing machines,  jewelry,  plat«,  and  glassware 
is  void  as  class  legislation.  Rodge  v.  Kelly, 
11:  635,  40  So.  552,  88  Miss.  209. 

( Annotated ) 
Milk  dealers. 

Due  process  as  to,  see  infra,  449. 
Police  power  as  to,  see  infra,  731-738. 

258.  An  ordinance  is  not  unconstitution- 
al for  partial  and  unequal  operation,  which 
requires  cows  from  which  milk  is  to  be  sold 
in  the  city  to  be  tested  with  tuberculin,  if 
they  are  kept  outside  the  city,  while  not 
requiring  such  test  of  cows  kept  within  it. 
Adams  v.  Milwaukee,  43:  1066,  129  N.  W. 
518,  144  Wis.  371. 

259.  An  ordinance  imposing  a  penalty  on 
all  who  sell  milk  or  cream  in  glass  jars,  for 
having  in  possession,  with  intent  to  use 
them,  jars  of  less  capacity  than  they  pur- 
port to  contain,  is  not  special  legislation, 
although  it  does  not  apply  to  all  milk  deal- 
ers, or  to  all  persons  who  vend  substances  in 
liquid  form.  Chicago  v.  Bowman  Dairy  Co. 
17:  684,  84  N.  E.  913,  234  111.  294. 
Ireddiers,  commission  merchants,  etc. 
Due  process  of  law  as  to,  see  infra,  513. 
See  also  supra,  201. 

Digest   1-52  L.R.A.(N.S.) 


260.  No  unconstitutional  impairment  of 
the  privileges  and  immunities  of  peddlers  in 
general  occurs  by  compelling  them  to  pay 
a  license  fee  from  which  peddlers  of  farm 
products,  books,  periodicals,  and  newspa- 
pers are  exempted,  since  the  classification 
upon  which  the  difference  depends  is  not 
wholly  without  reason.  McKnight  v.  Hodge, 
40:  1207,   104  Pac.   504,  55  Wash.   289. 

(Annotated) 

261.  An  exemption  from  the  general  law 
requiring  peddleis  to  pay  a  license  fee,  of 
those  operating  in  towns  whose  ordinances 
regulate  such  licenses,  does  not  effect  an 
unconstitutional  impairment  of  the  privi- 
leges and  immunities  of  those  operating 
elsewhere.  McKnight  v.  Hodge,  40:  1207, 
104  Pac.  504,  55  Wash.  289. 
Pawnbrokers,      second-hand      dealers, 

jnnk  dealers. 

262.  Forbidding  pawnbrokers,  secondhand 
dealers,  and  junk  dealers  to  keep  their 
places  of  business  open  or  transact  busi- 
ness between  7  o'clock  p.  m.  and  7  o'clock 
A.  M.  is  not  unconstitutional  class  legisla- 
tion, nor  is  it  unconstitutional  as  in  re- 
straint of  trade  or  personal  liberty.  Hy- 
man  v.  Boldrick,  44:  1039,  154  S.  W\  369, 
153  Ky.  77.  (Annotated) 

263.  The  legislature  may,  without  being 
guilty  of  unconstitutional  class  legislation, 
require  junk  dealers  to  make  inquiry  as  to 
the  ownership  of  certain  classes  of  prop- 
erty offered  for  sale  which,  because  of  its 
peculiar  nature  and  situation,  is  peculiar- 
ly subject  to  larceny  without  possibility  of 
its  being  adequately  watched  and  guarded. 
People  V.  Rosenthal,  46:  31,  90  N.  E.  991, 
197  N.  Y.  394. 

264.  Confining  to  junk  dealers  the  duty  of 
making  inquiry  as  to  ownership  before  pur- 
chasing certain  kinds  of  property,  under 
penalty  of  punishment  for  receiving  stolen 
property  in  case  it  proves  to  have  been 
stolen,  does  not  deprive  them  of  the  equal 
protection  of  tlic  laws.  People  v.  Rosen- 
thal, 46:  31,  90  N.  E.  991,  197  N.  Y.  394. 
Intoxicating  liqnors. 
Discrimination  against  women  in  regula- 
tions as  to,  see  supra,  154-156. 

Prohibiting     manufacture     of    alcohol,    see 

supra,  192. 
Discrimination    against    nonresidents    and 

aliens,  see  supra,  202,  202a. 
Treating  in  saloons,  see  infra,  423. 
Due  process  of  law  as  to,  see  infra,  508-512, 

529. 
Special    legislation    as    to,    see    Statutes, 

180-182. 

265.  The  right  to  sell  intoxicating  liquors 
is  not  one  of  the  privileges  or  immanities 
attaching  to  citizenship  in  the  United 
States.  State  v.  Durein,  15:  908,  78  Pac. 
152,  70  Kan.   1. 

266.  Classification  of  the  counties  of  a 
state  so  as  to  permit  the  sale  of  intoxicat- 
ing liquors  in  some,  while  it  is  prohibited  in 
others,  does  not  violate  the  provision  of 
the  Federal  Constitution  that  no  state  shall 
deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws.     AtkinsoB 


CONSTITUTIONAL  LAW,  II.  a.  5. 


553 


V.  Southern  Exp.  Co.  48:  349,  78  S.  E.  516, 
94  S.  C.  444. 

267.  Denying  persons  in  a  particular  lo- 
cality tlie  right  of  selling  intoxicating  li- 
quor, which  is  enjoyed  by  persons  in  other 
localities,  does  not  unconstitutionally  grant 
to  the  latter  privileges  and  immunities  not 
enjoyed  by  the  former.  State  ex  rel.  Gibson 
V.  Richardson,  8:  362,  85  Pac.  225,  48  Or. 
309.  (Annotated) 

268.  That  the  sale  of  intoxicating  malt 
beverages  is  restricted  to  manufacturers 
does  not  show  an  intention  to  discriminate 
in  their  favor,  so  as  to  render  void  a  statute 
regulating  the  sale  of  intoxicating  liquors. 
Com.  V.  Henry,  26:  883,  65  S.  E.  570,  110 
Va.  879. 

269.  Special  restrictions  against  the  sale 
of  intoxicating  liquors  are  not  necessarily 
void  as  class  legislation,  because  hotels 
having  100  rooms  or  more  are  exempted 
therefrom,  if  the  restrictions  be  confined  to 
the  classes  of  persons  to  whom  the  sale  is 
forbidden,  and  to  the  furnishing  of,  and 
approaches  to,  the  room  in  which  the  sale 
takes  place.  Ex  parte  Lewinsky,  50:  1156, 
63  So.  577,  66  Fla.  324, 

270.  A  statute  that  requires  a  certificate 
and  the  answering  of  certain  questions  by 
persons  engaged  in  the  traffic  in  intoxicat- 
ing liquors,  upon  which  the  right  to  con- 
tinue in  such  business  depends,  is  not 
discriminatory  so  as  to  deny  the  equal  pro- 
tection of  the  laws,  because  only  persons  who 
are  engaged  in  the  business  wlien  the  as- 
sessor makes  his  rounds,  are  required  to 
make  the  certificate  and  answer  the  ques- 
tions. Bloomfield  v.  State,  41 :  726,  99  N.  E. 
309,  86  Ohio  St.  253. 

271.  A  municipal  ordinance  granting  to 
an  individual  a  license  to  conduct  a  res- 
taurant in  which  intoxicants  may  be  sold 
is  invalid  as  conferring  a  special  privilege 
to  conduct  a  private  business  of  a  char- 
acter subject  to  general  police  regulations, 
and  which  is  of  no  public  interest.  State 
ex  rel.  Davies  v.  White,  50:  195,  136  Pac. 
110,  36  Nev.  354. 

272.  An  ordinance  regulating  the  hours  in 
which  intoxicating  liquors  shall  be  sold  is 
not  objectionable  as  class  legislation  where 
it  is  equally  applicable  to  all  dealers  in  in- 
toxicating liquors,  whether  at  wholesale  or 
retail,  nor  does  it  infringe  any  right  privi- 
lege, or  immunity  secured  to  the  citizen  by 
tlie  Federal  Constitution  or  that  of  the 
state  of  Idaho.  State  v.  Calloway,  4:  109, 
84  Pac.  27,  11  Idaho,  719. 

273.  The  discretion  vested  by  statute  in 
probate  judges  of  the  respective  counties  of 
Kansas  to  grant  or  refuse  permits  to  sell 
intoxicating  liquors  for  medical,  mechan- 
ical, or  scientific  purposes,  does  not  violate 
the  14th  Amendment  of  the^Constitution  of 
the  United  States,  which  provides  that  no 
state  shall  make  or  enforce  any  law  which 
will  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States,  nor  shall 
any  state  deprive  any  person  of  life,  liber- 
ty, or  property  without  due  process  of  law. 
State  V.  Durein,  15:  908,  78  Pac.  152,  70 
Kan.  1. 

Digest  1-52  I<.R.A.(N.S.) 


275.  A  municipal  ordinance  forbidding 
the  establishment  of  any  barroom  without 
permission  of  the  city  council  previously  ap- 
plied for  in  writing,  to  be  accompanied  by 
the  written  consent  of  a  majority  of  the 
bona  fide  propertj'  holders  within  300  feet 
of  the  proposed  location  of  the  barroom, 
measured  along  the  street  fronts,  is  not 
unconstitutional  as  conferring  arbitrary 
powers  on  the  property  holders  and  council, 
or  as  dis«riniinatiiig  in  favor  of  saloons  and 
barrooms  already'  opened  and  established  at 
the  date  of  tlie  ordinance.  Now  Orleans  v. 
Smythe,  6:  722,  41  So.  33,  116  La.  685. 

(Annotated) 

276.  A  law  forbidding  the  permitting  of 
females  under  age  to  remain  in  or  about 
saloons  is  not  invalid  class  legislation  be- 
cause it  does  not  apply  to  public  restaurants 
and  dining  rooms.  State  v.  Baker,  13:  1040, 
92  Pac.  1076,  50  Or.  381. 

277.  The  equal  protection  of  the  laws  is 
not  denied  to  citizens  of  a  certain  county  by 
a  statute  providing  that  having  in  posses- 
sion in  that  county  naore  than  a  quart  of 
liquor  without  license  to  sell  the  same  shall 
be  deemed  prima  facie  evidence  of  intent 
to  make  an  illegal  sale  thereof.  State  v. 
Barrett,  i :  626,  50  S.  E.  506,  138  N.  C.  630. 

(Annotated) 
Nonintoxicating  beverages. 
Police  power  as  to,  see  infra,  741-743. 
In  license  tax,  see  LiCEa^SE,  103-106. 
See  also  infra,  512. 

278.  A  tax  upon  all  engaged  in  the  busi- 
ness of  selling  nonintoxicating  malt  bever- 
ages containing  as  much  as  i  of  1  per  cent 
of  alcohol  is  not  invalid  as  forming  an  ar- 
bitrary classification.  State  v.  Dannenburg, 
26:  890,  66  S.  E.  301,  151  N.  C.  718. 
Medicine,  dentistry,  etc.  -  !  ' 
Due  process  of  law  as  to,  see  infra,  432. 
Police  power  as  to,  see  infra,  707-711. 

279.  A  statute  providing  for  the  revoca- 
tion of  the  license  of  a  physician  who  pub- 
lishes an  advertisement  relating  to  dis- 
ease of  the  sexual  organs,  while  permitting 
such  advertisement  by  other  persons,  is  in- 
valid as  class  legislation.  Chenoweth  v. 
State  Bd.  of  Medical  Examiners,  51:958, 
141    Pac.    132,  —   Colo.   — . 

Banking. 

Due  process  of  law  as  to,  see  infra,  435,  436. 

Police  power  as  to,  see  infra,  700-702. 

280.  Requiring  the  real  estate,  furniture, 
and  fixtures  of  a  private  banker  to  consti- 
tute no  more  than  one  third  of  the  entire 
capital  of  the  bank  does  not,  even  as  ap- 
plied to  established  institutions,  violate  the 
constitutional  provisions  against  taking 
property  without  compensation  or  due 
process  of  law,  granting  special  privileges 
or  immunities,  or  abridging  the  privileges 
and  immunities  of  citizens.  State  v.  Rich- 
creek,  5:  874,  77  N.  E.  1085,  167  Ind.  217. 

(Annotated) 

281.  Requiring  the  responsibility  and  net 
worth  of  the  individual  members  of  a  pri- 
vate banking  concern  to  be  equal  to  an 
amount  at  least  double  the  amount  of  cap- 
ital paid  into  the  bank  does  not  violate  the 
cojistitutional     provisions     against     taking 


554 


CONSTITUTIONAL  LAW,  II.  a,  5. 


property  without  compensation  or  due  proc- 
ess of  law,  conferring  special  privileges  or 
immunities,  or  abridging  the  privileges  and 
immunities  of  citizens.  State  v.  Richcreek, 
5:  874,  77  N.  E.  insS,  167  Ind.  217. 

(Annotated) 

282.  National  banks  in  a  state  are  not 
unconstitutionally  denied  the  equal  protec- 
tion of  the  laws  by  a  state  statute  permit- 
ting state  banks  to  contribute  to  a  guar- 
anty fund  for  the  security  of  depositors. 
Abilene  Nat.  Bank  v.  Dolley,  32:  1065,  179 
Fed.  461,  102  C.  C.  A.  607. 

283.  Savings  banks  are  not  unconstitu- 
tionally discriminated  against  by  making 
applicable  to  them  alone  the  provisions  of 
Mass.  Laws  1907,  chap.  340,  that  deposits 
which  have  remained  inactive  and  unclaimed 
for  thirty  years,  where  the  claimant  is  un- 
known or  the  depositor  cannot  be  found, 
shall  be  paid  to  the  treasurer  and  receiver 
general,  to  be  held  by  him  as  trustee  for 
the  true  owner  or  his  legal  representatives. 
Provident  Inst,  for  Sav.  v.  Malone,  34:  11 29, 
31  Sup.  Ct.  Rep.  661,  221  U.  S.  660,  55  L. 
ed.   899. 

Plumbers. 

Due  process  of  law  as  to,  see  infra,  434. 

Special  legislation  as  to,  see  Statutes,  161. 

284.  Requiring  all  who  engage  in  the 
plumbing  business  in  municipalities  contain- 
ing more  than  5,000  inhabitants  to  procure 
a  license,  and  requiring  the  appointment  of 
a  board  of  examiners  in  those  of  more  than 
10,000  inhabitants,  is  not  an  arbitrary  class- 
ification, so  as  to  render  the  statute  invalid. 
Douglas  V.  People  ex  rel.  Ruddy,  8:  11 16, 
80  N.  E.  341,  225  111.  536. 
Pharmacists. 

Due  process  of  law  as  to,  see  infra,  503. 
Police  power  as  to,  see  infra,  712,  713. 

285.  No  unconstitutional  discrimination 
against  retail  druggists  is  made  by  a  stat- 
ute requiring  them,  when  selling  poisons 
without  a  physician's  prescription,  to  sat- 
isfy themselves  that  they  are  to  be  used 
for  a  legitimate  purpose,  although  the  same 
requirement  is  not  imposed  upon  whole- 
salers. Katzman  v.  Com.  30:  519,  130  S. 
W.  990,  140  Ky.  124. 

286.  A  statute  limiting  the  sale  of  medi- 
cines to  licensed  pharmacists  is  not  void  for 
unconstitutional  discrimination  because  it 
permits  the  sale  of  certain  remedies  by  mer- 
chants in  villages  if  their  places  of  business 
are  more  than  3  miles  distant  from  a  drug 
store.  State  Bd.  of  Pharmacy  v.  Matthews, 
26:  I0I3,  90  N.  E.  966,  197  N.  Y.  353. 
Fishing. 

Due  process  of  law  as  to,  see  infra,  527. 
See  also  supra,  185,  186. 

287.  The  limitation  by  the  state  during 
certain  months  of  the  year,  of  the  right  to 
take  shellfish  from  tide  water  within  the 
limits  of  a  town,  to  its  residents  and  hotel 
proprietors,  who  are  permitted  to  take  them 
lor  use  on  their  tables,  is  not  void  as  deny- 
ing other  citizens  of  the  state  the  equal  pro- 
tection of  the  laws.  State  v.  Leavitt,  26: 
799,  72  Atl.  875,  105  Me.  76. 

288.  The  provisions  of  Ohio  Rev.  Stat. 
i§§  6968-2,  as  amended  April  26,  1898   ;(93 

Digest  1-52  L.R.A.(N.S.) 


Ohio  Laws,  p.  304),  requiring  every  person, 
firm,  or  corporation  desiring  to  engage  in 
fishing  for  profit  in  the  waters  of  Lake  Erie 
or  its  estuaries  or  bays  within  the  state 
I  to  obtain  a  license  or  authority  so  to  do 
from  the  commissioners  of  fish  and  game, 
and  to  pay  a  specified  fee  therefor, — is  not 
invalid  as  a  denial  of  the  equal  protection 
of  the  laws  in  violation  of  the  14th  Amend- 
ment to  the  Constitution  of  the  United 
States,  nor  is  it  repugnant  to  the  uniformity 
claus^  in  Ohio  Const,  art.  2,  §  26.  State 
V.  Hanlon,  13:  539,  82  N.  E.  662,  77  Ohio 
St.   19. 

Telegraph  business. 
Due  process  of  law  as  to,  see  infra,  452. 

290.  The  equal  protection  of  the  laws  is 
not  denied  telegraph  companies  and  the  per- 
sons with  whom  it  does  business  by  a  state 
statute  under  which,  as  construed  by  the 
state  courts  a  telegraph  company  cannot 
limit  its  liability  for  its  negligent  failure 
to  deliver  a  telegram  addressed  to  a  person 
in  another  state,  although  express  com- 
panies and  other  common  carriers  may,  by 
contract,  limit  their  liability  in  this  re- 
spect. Western  U.  Teleg.  Co.  v.  Commer- 
cial Milling  Co.  36:  220,  31  Sup.  Ct.  Rep.  59, 
218  U.  S.  406,  54  L.  ed.  1088. 
Architects. 

291.  An  exception  in  favor  of  persons 
planning  buildings  to  be  erected  or  altered 
by  themselves  or  their  employees,  in  a 
statute  requiring  architects  to  be  licensed, 
does  not  render  the  statute  unconstitution- 
al as  class  legislation.  People  ex  rel.  Laist 
V.  Lower,  36:  1203,  96  N.  E.  346,  251  111. 
527.  (Annotated) 

b.  Sunday  laws. 

(See  also   same   heading   in  Digest   L.R.A. 
1-70.) 

Due  process  of  law  as  to,  see  infra,  450,  451. 
Police  power  as  to,  see  infra,  687. 
Conflict  of  laws    as    to,    see    Conflict    of 

Laws,  49,  50. 
Special  legislation  as  to,  see  Statutes,  158, 

159. 
As  to  Sunday  laws  generally,  see  Sunday. 

292.  A  law  declaring  Sunday  a  day  of  rest 
is  not  unconstitutional  because  it  does  not 
prohibit  all  kinds  of  labor  on  Sunday.  State 
V.  Dolan,  14:  1259,  92  Pac.  995,  13  Idaho, 
693.  (Annotated) 

293.  The  prohibition  of  certain  trades  and 
business  upon  Sunday,  by  Idaho  Act  March 
12,  1907,  does  not  infringe  the  14th  Amend- 
ment to  the  Constitution  of  the  United 
States,  forbidding  the  making  or  enforce- 
ment of  any  laws  which  abridge  the  privi- 
leges or  immunities  of  citizens  of  the 
United  States.  State  v.  Dolan,  14:  1259,  92 
Pa.  995,  13  Idaho,  693. 

294.  The  prohibition  of  certain  trades  and 
business  on  Sunday,  contained  in  Idaho 
act  March  12,  1907,  does  not  discriminate 
between  certain  persons  and  against  cer- 
tain busines's,  and  is  not  unfair  or  unrea- 
sonable in  contravention  of  the;  Idaho  Con- 


CONSTITUTIONAL  LAW,  II.  a,  5. 


5J5 


stitution.     State  v.  Dolan,  14:  1259,  92  Pac. 

995,  13  Idaho,  693. 

Theaters,  pictures,  show^s,  etc. 

Right   to   keep   open   on   Sunday,   generally. 
see  Sunday,  4,   13-15. 

295.  A  statute  making  it  unlawful  to 
keep  open,  or  run,  or  permit  to  be  run,  any 
tJieaters,  show,  moving  picture  show,  or 
theatrical  performance  upon  Sunday,  is  not 
invalid  as  special  legislation.  State  ex  rel. 
Temple  v.  Barnes,  37:  114,  132  N.  W.  215, 
22  N.  D.  18. 

Barbers. 

Special  legislation  as  to,  see  Statutes,  150. 

296.  A  statute  requiring  the  closing  of 
barber  shops  on  Sunday,  fixing  a  different 
penalty  for  its  violation  from  that  imposed 
for  violations  of  the  general  Sunday  law, 
violates  a  constitutional  piovision  forbid- 
ding special  laws  for  the  punishment  of 
misdemeanors.  Armstrong  v.  State,  15: 
646,  84  N.  E.  3,  170  Ind.  188.  (Annotated). 
Playing  ball. 

Playing  ball  as  sporting,  see  Sunday,  5-10. 

297.  Exempting  professional  baseball  play- 
ers from  the  operation  of  the  Sunday 
laws,  while  leaving  them  applicable  to  per- 
sons engaged  in  other  occupations,  does  not 
grant  them  an  unconstitutional  privilege  or 
immunity,  since  the  possibility  of  benefit 
to  the  populace  which  may  witness  the 
games  is  sufficient  to  indicate  an  absence  of 
purely  arbitrary  action  in  the  classification. 
Carr  v.  State,  32:  1190,  93  N.  E.  1071,  175 
Ind.  241.  (Annotated) 

c.  As  to  employees. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Due  process  of  law  as  to,  see  infra,  II.  b,  4, 

b  (2). 
Police  power  as  to,  see  infra,  II.  c,  4,  c. 

298.  Requiring  employers  advertising  for 
help  during  the  existence  of  a  strike  to 
mention  its  existence  does  not  create  spe- 
cial privilege,  nor  is  it  class  legislation. 
Com.  V.  Libbey,  49:  879,  103  N.  E.  923,  216 
Mass.  356. 

299.  A  statute  forbidding  the  employment 
of  persons  to  operate  emery  or  buffing 
wheels  or  belts  in  basements  wholly  or  part- 
ly beneath  the  surface  of  the  ground  is  un- 
constitutional class  legislation,  since  such 
rooms  may  be  as  healthfully  lighted  and 
ventilated  as  those  above  the  surface,  and 
can  be  used  for  the  prohibitive  purpo.se  as 
healthfuUv  as  can  be  the  latter.  People 
V.  Schenck,  44:  46,  100  N.  E.  994,  257  111. 
384.  (Annotated) 
Favoring   nnion   ^vorkmen. 

Due  process  of  law  as  to,  see  infra,  474. 

300.  That  organizations  of  laboring  men 
for  the  purpose  of  raising  wages  are  except- 
ed from  the  operation  of  Neb.  Comp.  Stat. 
1901,  chap.  Ola,  §  9,  prohibiting  combina- 
tions and  conspiracies  to  prevent  competi- 
tion and  regulate  prices,  does  not  confer 
upon  them  special  or  exclusive  privileges  or 
immunities  in  contravention  of  Neb.  Const. 
Digest  1-52  L.R.A.(N.S.) 


art.   3,   §    15;   nor  is  it    special    legislation 

within  the  meaning  of    that    section.     Cle- 

land  V.  Anderson.  5:  136,  92  N.  W.  306,  96 

N.  W.  212,  98  N.  W.  1075,  66  Neb.  252,  105 

N.  W.  1092,  75  Neb.  273. 

Hours  of  labor. 

Due    process    of  law  as  to,  see  infra,  477- 

485. 
Police  power  as  to,  see  infra,  720. 
Impairment     of    contract    obligations,     see 

infra,  781. 
Special  or  local  legislation  as  to,  see  Stat- 
utes, 162,  163. 
301.  Unconstitutional  discrimination  is 
not  effected  by  forbidding  persons  employed 
on  public  work  to  labor  more  than  eight 
hours  a  day,  while  those  employed  by  pri- 
vate citizens  are  not  restricted  in  the  dura- 
tion of  the  hours  of  labor.  People  ex  rel. 
Williams  Engineering  &  C.  Co.  v.  Metz, 
24:  201,  85  N.  E.  1070,  193  N.  Y.  148. 

(Annotated) 

302.  Exempting  from  a  statute  limiting 
the  hours  of  labor  on  public  work  persons 
regularly  employed  in  state  institutions, 
engineers,  electricians,  and  elevator  men  in 
the  department  of  public  buildings  during 
the  annual  session  of  the  legislature,  and 
persons  employed  in  the  construction,  main- 
tenance, and  repair  of  highways  outside  the 
limits  of  cities  and  villages,  is  not  such  an 
arbitrary  classification  as  to  render  the 
statute  void  as  denying  the  equal  protection 
of  the  laws.  People  ex  rel.  Williams  En- 
gineering &  C.  Co.  V.  Metz,  24:  201,  85  N. 
E.   1070,   193  N.  Y.  148. 

303.  The  legislature  can  pass  no  law  limit- 
ing the  hours  of  labor  on  contracts  for  im- 
provements which  a  municipal  corporation 
undertakes  in  its  private  or  proprietary 
capacity,  where  the  Constitution  prohibits 
special  laws  regulating  labor,  since  there 
is  no  distinction  between  the  labor  on  such 
contracts  and  those  of  private  individuals, 
which  can  form  a  proper  basis  for  classifi- 
cation. Com.  v.  Casey,  34:  767,  80  Atl.  78, 
231    Pa.    170.  (Annotated) 

304.  A  statute  limiting  the  hours  of  labor 
in  mines  and  smelting  and  reduction  works 
is  not  special  legislation,  nor  does  it  grant 
special  privileges  and  immunities,  nor  lack 
uniformity  of  operation,  because  it  does  not 
apply  alike  to  all  classes  or  laborers  en- 
gaged in  occupations  dangerous  to  health. 
Ex  parte  Martin,  26:  242,  106  Pac.  235,  157 
Cal.   51.  (Annotated) 

305.  That  a  statute  limiting  the  hours  of 
labor  in  mines  does  not  apply  to  persons 
employed  in  other  underground  occupations 
does  not  render  it  invalid  for  lack  of  uni- 
formitv  of  operation.  Ex  parte  Martin,  26: 
242,  106  Pac.  235,  157  Cal.  51. 

306.  A  statute  limiting  the  hours  of  labor 
labor  of  stationary  firemen  in  certain 
plants  operated  by  steam,  and  running  day 
anJi  night,  but  which  does  not  apply  to 
plants  running  either  day  or  night,  rests 
on  an  arbitrary  distinction,  and  is  there- 
fore void.  State  v.  Barba,  45:  546,  61  So. 
784,  132  La.  768. 

307.  A  statute  providing  that  stationary 
firemen  in  certain  plants  operated  by  steam 


556 


CONSTITUTIONAL  LAW,  II.  a,  5. 


shall  not  be  employed  to  work  consecutive- 
ly more  than  eight  hours  in  one  day,  and 
which  exempts  stationary  firemen  employed 
in  the  petroleum  industry,  cotton  gins, 
sugar  plantations,  or  in  the  sawmill  in- 
dustry, works  an  unconstitutional  discrim- 
ination and  is  therefore  void.  State  v. 
Barba,  45:  546,  61   So.  784,   132   La.  768. 

308.  Limiting  hours  of  labor  of  women  in 
hotels  to  ten,  while  placing  no  limitation 
upon  them  in  boarding  houses  and  otlier 
like  places,  is  not  an  unconstitutional  dis- 
crimination, since  the  public  nature  of  the 
hotel  business  furnishes  a  proper  ground 
for  classification.  People  v.  Elerding,  40: 
893,  98  N.  E.  982,  254  111.  579. 

(Annotated) 

309.  Unconstitutional  class  legislation 
does  not  result  from  excepting,  from  the 
operation  of  a  law  limiting  the  hours  of 
woman's  labor,  persons 'engaged  in  preserv- 
ing perishable  goods  in  fruit  and  vegetable 
canning  establishments.  Withey  v.  Bloem, 
35:  628,  128  N.  W.  913,  163  Mich.  419. 

310.  An  unconstitutional  distinction  be- 
tween different  classes  of  women  is  not  ef- 
fected by  forbidding  those  employed  in  me- 
chanical establishments,  factories  and  laun- 
dries to  work  more  than  ten  hours  per  day, 
while  permitting  all  others  to  do  so.  W.  C. 
Ritchie  &  Co.  v.  Wayman,  27:  994,  91  N.  E. 
695,  244  111.  509. 

311.  The  limitation  of  the  working  hours 
of  women  in  manufacturing  and  mercantile 
establishments,  to  nine  in  every  twenty- 
four,  does  not  deprive  them  of  any  right 
guaranteed  to  them  by  the  14th  Amend- 
ment of  the  Federal  Constitution.  Withey 
V.  Bloem,  35:  628,  128  N.  W.  913,  163  Mich. 
419.  (Annotated) 
Payment  of  urages. 

Statute  as  to  assignment  of  wages,  see 
supra,  180,  181. 

Statute  as  to  garnishment  of  wages,  see 
supra,  183,  184. 

Due  process  of  law  as  to,  see  infra,  486-491. 

Who  may  question  constitutionality  of  stat- 
ute as  to  time  of  payment  of  wages,  see 
Statutes,  31. 

312.  Corporations  are  not  deprived  of  the 
equal  protection  of  the  laws  by  requiring 
them  to  pay  their  employees  semimonthly, 
when  the  requirement  is  not  made  to  ap- 
ply to  natural  persons.  Arkansas  Stave 
Co.  V.  State,  27:  255,  125  S.  W.  1001,  94 
Ark.  27. 

313.  A  domestic  corporation  cannot  avoid 
the  effect  of  a  statute  requiring  corpora- 
tions of  the  class  to  which  it  belongs  to  pay 
their  employees  weekly,  on  the  ground  that 
it  is  unequal  because  inapplicable  to  for- 
eign corporations,  since  such  corporations 
are  amenable  to  the  statute  so  far  as  they 
attempt  to  do  business  within  the  state. 
Lawrence  v.  Rutland  R.  Co.  15:  350,  67  Atl. 
1091,  80  Vt.  370. 

314.  Requiring  steam  surface  railways  to 
pay  their  employees  semimonthly,  in  cash, 
does  not  deprive  them  of  the  equal  protec- 
tion of  the  laws,  although  the  requirement 
does  not  apply  to  other  corporations,  since 
the  classification  is  a  proper  one  for  such 
Digest  1-52  L.R.A.(N.S.) 


purpose.  New  York  C.  &  H.  R.  R.  Co.  v. 
Williams,  35:  549,  92  N.  E.  404,  199  N.  Y. 
108. 

315.  A  railway  company  is  not  deprived 
of  the  equal  protection  of  the  laws  by  a 
statute  requiring  such  companies  and  other 
transportation  and  telephone  and  telegraph 
companies  to  pay  their  employees  weekly. 
Lawrence  v.  Rutland  R.  Co.  15:  350,  (>?  Atl. 
1091,  80  Vt.  370.  (Annotated) 
Liability  for  negligent  injury. 
Denial  of  due  process  or  interference  with 

freedom  of  contract  as  to,  see  infra, 
467-473. 

Police  power  as  to,  see  infra,  721-723. 

Impairment  of  contract  obligations  by  stat- 
ute as  to,  see  infra,  780. 

316.  An  employees'  insurance  act  which 
applies  to  employers  employing  i\ve  or 
more  workmen  or  operatives  does  not  make 
an  unjust  or  arbitrary  classification.  State 
ex  rel.  Yaple  v.  Creamer,  39:  694,  97  N.  E. 
602,  85  Ohio  St.  349. 

317.  An  employees'  indemnity  act  is  not 
invalid  as  class  legislation  because  the  fund 
collected  by  assessments  upon  certain  haz- 
ardous business  is  to  be  expended  in  the 
relief  of  employees  of  such  business,  in- 
stead of  being  applied  to  the  relief  of 
workmen  generally,  or  to  the  use  of  the 
state  at  large.  State  ex  rel.  Davis-Smith 
Co.  V.  Clausen,  37:  466,  117  Pac.  1101,  65 
Wash.  156. 

318.  That  an  employees'  indemnity  act 
made  applicable  only  to  hazardous  occu- 
pations entitled  to  its  benefit  workmen  in- 
jured when  outside  the  line  of  their  duties, 
or  in  a  branch  of  the  business  not  peculiar- 
ly hazardous,  does  not  rescler  the  entire  act 
invalid  as  class  legislation,  if  provision  is 
made  for  an  elimination  from  the  act 
of  parts  which  may  be  found  to  be  invalid, 
without  affecting  the  remainder.  State  ex 
rel.  Davis-Smith  Co.  v.  Clausen,  37:  466, 
117  Pac.   1101,  65  Wash.  156. 

319.  A  statute  is  not  invalid  for  uncon- 
stitutional discrimination,  which  abolishes 
the  doctrines  of  fellow  service  and  assump- 
tion of  risk  in  actions  to  hold  employers 
liable  for  negligent  injuries  to  their  em- 
ployees, except  in  cases  of  persons  employ- 
ing less  than  four  servants.  Borgnis  v. 
Falk  Co.  37:  489,  133  N.  W.  209,  147  Wis. 
327. 

320.  A  statute  is  not  invalid  as  confer- 
ring unequal  privileges  and  immunities, 
which  abolishes  the  doctrines  of  assumption 
of  risk  and  fellow  service  in  actions  to  hold 
employers  liable  for  personal  injuries  to 
their  servants,  in  cases  where  employers 
refuse  to  take  advantage  of  the  act,  but 
preserves  them  intact  to  those  who  come 
under  the  law.  Borgnis  v.  Falk  Co.  37: 
489,  133  N.  W.  209,  147  Wis.  827. 

321.  Imposing  upon  private  corporations 
a  liability  for  injuries  to  employees,  which 
will  not  exist  in  case  of  individuals  or  part- 
nerships for  injuries  arising  from  the  same 
cause  under  the  same  conditions,  violate* 
the  constitutional  provision  guaranteeing 
equal  protection  of  the  laws.  Bedford  Quar- 
ries Co.  V.  Bough,  14:  418,  80  N.  E.  529,  168 
Ind.  671. 


CONSTITUTIONAL  LAW,  11.  a,  G. 


557 


322.  The  modification  of  the  fellow-serv- 
ant rule  as  to  railway  employees,  made  by 
Ind.  act  of  March  4,  1893,  §  1,  does  not 
offend  against  the  equal  prot(!ction  of  the 
laws  clause  of  the  Federal  Constitution  be- 
cause construed  as  applying  to  all  employees 
doing  work  essential  to  enable  the  carrying 
on  of  railway  operations,  and  not  as  limit- 
ed to  those  engaged  in  or  about  the  move- 
ment of  trains,  but  such  general  classifi- 
cation of  railway  employees  is  a  proper 
exercise  of  the  police  power.  Louisville  & 
N.  R.  Co.  V.  Melton,  47:  84,  30  Sup.  Ct. 
Rep.  676,  218  U.  S.  36,  54  L.  ed.  921. 

(Annotated) 

323.  Making  railroad  companies  liable 
for  injury  to  employees  through  the  negli- 
gence of  fellow  servants,  and  forbidding  the 
avoidance  of  such  liability  by  a  relief  or 
indemnity  contract  with  the  employee,  does 
not  deprive  such  companies  of  the  equal 
protection  of  the  laws.  McGuire  v.  Chicago, 
B.  &  Q.  R.  Co.  33:  706,  108  N.  W.  902,  131 
Iowa,   340. 

324.  A  state  employers'  liability  act  ex- 
cepting from  the  general  law  of  the  state 
as  to  fellow  servants  all  common  carriers 
and  all  their  employees,  and  subjecting  the 
former  to  and  granting  to  the  laitter  causes 
of  action  for  injuries  caused  by  the  negli- 
gence of  their  fellow  servants,  and  for  those 
to  which  their  own  negligence  contributes 
in  less  degree  than  the  negligence  of  the 
employer,  while  no  such  rights  are  grant- 
ed to  other  employees,  denies  to  persons 
similarly  situated  the  equal  protection  of 
the  laws  guaranteed  by  the  14th  Amend- 
ment to  the  Federal  Constitution.  Chicago, 
M.  &  St.  P.  R.  V.  Westby,  47:  97,  178  Fed. 
619,  102  C.  C.  A,  65. 

325.  A  state  employers'  liability  act  which 
by  its  terms  subjects  "every  common  car- 
rier" engaged  in  commerce  in  the  state  to 
liability  for,  and  grants  to  "any"  employee 
of  every  such  carrier  a  cause  of  action  for, 
injuries  to  the  employee  caused  by  tlie  negli- 
gence of  a  fellow  servant,  and  for  those  con- 
tributed to  by  his  own  negligence  in  less  de- 
gree than  the  negligence  of  the  employer, 
cannot  be  saved  from  unconstitutionality  as 
denying  equal  protection  of  the  laws  by 
limiting  it  by  judicial  construction  to  com- 
mon carriers  using  powerful  and  dangerous 
agencies,  and  their  servants  engaged  in 
hazardous  and  dangerous  occupations,  so  as 
to  apply  only  to  a  constitutional  class, 
since  to  do  so  would  constitute  judicial 
legislation.  Chicago,  M.  &  St.  P.  R.  Co.  v. 
Westby,  47:  97,  178  Fed.  619,  102  C.  C.  A. 
65. 

326.  A  state  constitutional  provision  may 
abrogate  the  common-law  fellow-servant  doc- 
trine as  to  all  employees  of  railroad,  street 
railway,  interurban  railway,  and  mining 
companies,  because  of  the  hazards  attached 
to  these  employments,  without  offending 
against  the  equal  protection  clause  of  the 
14th  Amendment  of  the  Fdderal  Constitu- 
tion, and  is  not  limited  merely  to  those  em- 
ployees who  are  engaged  in  the  specially 
hazardous  work  of  such  vocations.  Kreps 
V.  Brady,  47:  106,  133  Pac.  216,  37  Okla.  754. 
Digest  1-52  Ii.R.A.(N.S.) 


327.  Applying  to  proprietors  of  railroads 
a  rule  of  liability  with  respect  to  injuries 
of  employees  different  from  that  applied  to 
other  classes  of  employers  does  not  deprive 
them  of  the  equal  protection  of  the  laws. 
Indianapolis  Traction  &  T.  Co.  v.  Kinney, 
23:  711,  85  N.  E.  954,  171  Ind.  612. 

328.  The  equal  protection  of  the  laws  is 
not  denied  to  railroad  companies  by  a  con- 
stitutional provision  repealing  the  fellow- 
servant  doctrine  in  favor  of  employees  of 
commercial  railroads,  but  not  as  to  logging, 
lumber,  and  other  like  roads.  Bradford 
Constr.  Co.  v.  Heflin,  12:  1040,  42  So.  174, 
88  Miss.  314.  (Annotated) 

329.  The  abrogation  of  the  fellow-serv- 
ant rule  as  to  railway  employees,  made  by 
Miss.  Code  1892,  §  3559,  does  not  offend 
against  the  equal  protection  of  the  laws 
clause  of  the  Federal  Constitution,  be- 
cause construed  as  applying  to  the  fore- 
man of  a  section  crew  charged  with  keep- 
ing the  track  in  repair.  Mobile,  J.  &  K. 
C.  R.  Co.  v.  Turnipseed,  32:  226,  31  Sup.  Ct. 
Rep.  136,  219  U.  S.  35,  55  L.  ed.  78. 

d.  Regulating  rates. 

Railroad  rates,  see  supra,  212-217. 

Due  process  of  law  in,  see  infra,  II.  b,  4,  c. 

Impairment  of  contract  obligations  by,  see 

infra,  790,  791. 
Special   legislation   as   to  rates  of  interest, 

see  Statutes,  167,  168. 

329a.  A  provision  in  a  statute  empowering 
a  commission  to  fix  rates  to  be  charged  by 
gas  companies,  that  a  rate  when  established 
shall  continue  until  changed  at  the  petition 
of  the  consumer,  giving  the  corporation  no 
power  to  petition  for  a  change,  deprives  the 
corporation  of  its  constitutional  right  to 
equal  protection  of  the  laws.  Saratoga 
Springs  v.  Saratoga  Gas,  E.  L.  &  P.  Co. 
18:  713,  83  N.  E.  693,  191  N.  Y.  123. 

6.    Attortteys'     fees;    costs;    penalties; 
damages. 

330.  The  legislature  may  allow  an  at- 
torney's fee  against  one  whose  delinquency 
makes  necessary  a  proceeding  to  enforce 
a  special  assessment  for  public  improve- 
ments against  his  property,  although  no 
such  fee  is  allowed  in  his  favor.  Engebret- 
sen  V.  Gay,  28:  1062,  109  Pac.  880,  158  Cal. 
30, 

In  mechanics'  lien  case. 

331.  A  statute  allowing  an  attorney's  fee 
to  one  who  eatablishes  a  mechanics'  lien 
which  is  not  allowed  to  other  classes  of  liti- 
gants, violates  the  constitutional  guaranty 
of  equal  protection  of  the  laws,  uniformity 
of  laws,  and  equal  rights  in  the  acquisition 
and  protection  of  property.  Builders'  Sup- 
ply Depot  V.  O'Connor,  17:  909,  88  Pac.  982, 
150  Cal.  265.  (Annotated) 
Penalties;  damages. 

332.  A  carrier  is  not  denied  the  equal 
protection  of  the  laws  by  permitting  the  re- 
covery against  it  of  a  penalty  for  refusal 
to  pay  a  claim   for   loss  of  freight  within 


558 


CONSllTUTIONAL  LAW,  II.  a,  7,  8. 


a  specified  time,  although  the  amount  final- 
ly recovered  is  less  than  the  claim  pre- 
sented. Mobile  &  O.  R.  Co.  v.  Brandon,  42: 
106,  53  80.  957,  98  Miss.  461.       (Annotated) 

333.  A  statute  imposing  upon  any  person, 
association,  or  corporation  operating  any 
telegraph  line  doing  business  in  tiie  state, 
a  liability  for  damages  for  mental  anguish 
resulting  directly  from  tlie  failure  or  negli- 
gence of  their  servants  in  handling  mes- 
sages, is  not  objectionable  as  being  class 
legislation.  Nitka  v.  Western  U.  Teleg. 
Co.  49:  337,   135  N.  W.  492,   149  Wis.   106. 

( Annotated ) 

7.  Matters  of  practice. 

(See   also   same   heading   in  Digest   L.R.A. 
1-70.) 

Due  process  of  law  as  to,  see  infra,  II.  b,  7. 
See  also  infra,  548. 

S.  Criminal  matters. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

As  to  Sunday  law,  see  supra,  II.  a,  5,  b. 
Due  process  as  to,  see  infra,  II.  b,  8. 
Police  power  as  to,  see  infra,  II.  c,  5. 

334.  The  provisions  of  Ohio  Rev.  Stat.  §§ 
4364-42,  4364-43,  4364-44,  4364-45,  making 
it  a  crime  to  have  in  possession,  for  use  or 
sale,  certain  bottles  or  other  vessels  without 
the  written  consent  of  the  owner,  and  pro- 
viding for  search  warrant  to  seize  and  re- 
store such  property  to  the  owner,  are  in 
conflict  M'ith  Ohio  Const,  art.  1,  §§  1  and 
14,  and  are  invalid.  State  v.  Schmuck, 
14:  1128,  83  N.  E.  797,  77  Ohio  St.  438. 

(Annotated) 

335.  A  statute  providing  for  the  imprison- 
ment of  the  laborer  alone  for  wilful  and 
unjust  violation  of  a  farm-labor  contract, 
and  then  only  when  he  has  received  ad- 
vances under  it,  denies  him  the  equal  pro- 
tection of  the  laws.  Ex  parte  HoUman, 
21:  242,  60  S.  E.  19,  79  S.  C.  9.   (Annotated) 

336.  The  Federal  constitutional  guaranty 
of  equal  protection  of  the  law  does  not  pre- 
vent the  placing  of  an  accused  who  has  been 
indicted  for  murder,  and  convicted  of  volun- 
tary manslaughter,  again  on  trial  for 
murder  on  a  new  trial  obtained  by  him  on 
his  own  motion,  under  a  state  constitutional 
provision  that  no  person  shall  be  put  in 
jeopardy  of  life  or  liberty  more  than  once 
for  the  same  offense,  save  oH  his  own  motion 
for  a  new  trial  after  conviction,  or  in  case 
of  mistrial.  Brantley  v.  State,  22:  959,  64 
S.  E.  676,  132  Ga.  573. 

Extent   of  pxinigliineiit. 

337.  While  the  legislature,  in  prescrib- 
ing and  fixing  punishment  for  cnme,  has 
very  great  latitude  in  classifying  the  same, 
still,  such  classification  should  be  natural, 
and  not  arbitrary,  and  should  be  made  witli 
reference  to  the  heinousness  or  gravity  of 
the  act  or  acts  made  a  crime,  and  not 
with  reference  to  matters  disconnected  with 
Digest   1-52  I<.R.A.(N.S.) 


the   crime.      Re   Mallon,   22:  1123,   102   Pac. 

374,  16  Idaho,  737. 

338.  A  statute  making  it  a  crime  for  a 
state  prisoner  to  escape  from  a  state  pris- 
on, and  fixing  the  punishment  at  a  terra 
equal  in  length  to  that  which  he  is  serv- 
ing at  the  time  of  his  escape,  by  exempt- 
ing from  its  operation  Federal  prisoners 
confined  in  such  prison,  who  are,  by  Federal 
statute,  rendered  subject  to  the  same  disci- 
pline as  state  prisoners,  is  rendered  special 
and  discriminatory  legislation.  Re  Mallon, 
22:  1123,  102  Pac.  374,  16  Idaho,  737. 

339.  A  statute  fixing  the  punishment  of 
a  person  who  escapes  from  state  prison  at 
a  term  equal  in  length  to  that  which  he  is 
serving  at  the  time  of  the  escape  denies 
equal  protection  of  the  law  to  persons  under 
like  circumstances,  since  convicts  equally 
culpable  in  eflfecting  escape  may  receive  dif- 
ferent punishment,  depending  not  on  the 
gravity  of  the  offense,  but  arbitrarily,  on 
the  time  they  have  been  originally  sentenced 
to  prison.  Re  Mallon,  22:  1123,  102  Pac. 
374,  16  Idaho,  737. 

340.  A  statute  providing  different  degrees 
of  punishment  for  the  same  act  when  per- 
formed by  officers  of  a  particular  class  of 
corporations  and  by  other  persons  violates 
a  constitutional  requirement  of  uniformity 
of  oper.ation.  Re  Sohncke,  2:  813,  82  Pac. 
956,  148  Cal.  262. 

Usury. 

341.  Making  it  a  crime  to  take  usurious 
interest  only  when  it  is  above  a  certain 
amount  is  not  unconstitutional  class  legisla- 
tion. Re  Berger,  3:  530,  90  S.  W.  759.  193 
Mo.  16.  (Annotated) 

342.  A  statute  making  it  a  misdemeanor 
to  take  usury  on  loans  secured  by  house- 
hold or  kitchen  furniture  is  not  invalid  as 
tending  to  deprive  persons  lending  on  such 
security  of  the  equal  protection  of  the  laws, 
since  sucii  articles  furnish  a  proper  basis 
for  classification  in  dealing  with  usurious 
loans.  State  v.  Davis,  39:  136,  73  S.  E. 
130,  157  N.  C.  648. 

343.  WTiere  a  custom  of  taking  extor- 
tionate interest  on  loans  of  less  than  $200 
is  general,  while  on  loans  over  that  sum  it 
is  rarely  taken,  the  legislature  may  make 
sums  below  that  amount  a  proper  basis  for 
classification,  and  declare  the  taking  of  such 
interest  on  such  sums  to  be  a  misdemeanor, 
while  not  affixing  that  penalty  in  case  of 
loans  over  that  sura,  without  depriving 
those  making  the  smaller  loans  of  the  equal 
protection  or  uniform  operation  of  the 
laws,  or  of  their  constitutional  right  to  liber- 
ty. State  V.  Sherman,  27:  898,  105  Pac.  299, 
18  W^yo.  169.  (Annotated) 
Monopoly. 

344.  A  statute  providing  for  the  punish- 
ment only  of  persons  who,  in  buying  milk, 
cream,  or  butter  fat  for  manufacture,  or 
butter,  eggs,  or  grain  for  sale  or  storage, 
discriminate  between  localities  by  paying  a 
liigher  price  in  one  than  in  another  for  the 
purpose  of  creating  a  monopoly  or  destroy- 
ing the  business  of  a  competitor,  does  not 
unconstitutionally  grant  privileges  and  im- 
munities to  some  classes  of  citize^8  which 


.CONSTITUTIONAL  LA\V,  II.  b,  1. 


559 


are  withheld  from  others.  State  v.  Fair- 
mont Creamery  Co.  42:  821,  133  N.  W.  895, 
153  Iowa,  702.  (Annotated) 

345.  A  statute  forbidding  discrimination 
in  prices  in  different  sections  of  the  state, 
for  the  purpose  of  driving  out  of  business  a 
competitor  at  one  point,  is  not  invalid  for 
making  an  unreasonable  classification,  be- 
cause it  permits  persons  to  sell  at  unrea- 
sonably low  prices,  where  they  make  no 
attempt  at  discrimination,  since  there  can 
be  no  unconstitutional  classification  as  to 
acts  which  will  constitute  a  crimp.  State  v. 
Central  Lumber  Co.  42:  804,  123  N.  W.  504. 
24  S.  D.  136. 

346.  Excluding  combinations  of  wage 
earners  from  statutory  prohibitions  against 
combinations  to  lessen  competition  and 
regulate  prices,  does  not  render  such  legis- 
lation repugnant  to  the  Federal  Constitu- 
tion as  denying  the  equal  protection  of  the 
laws.  International  Harvester  Co.  v.  Mis- 
souri ex  rel.  Attorney  General,  52:  525,  34 
Sup.  Ct.  Rep.  859,  234  U.  S.  199,  58  L.  ed. 
1276.  (Annotated) 

347.  Confining  to  manufacturers  and  ven- 
dors of  articles  the  prohibitions  of  a  statute 
against  combinations  to  lessen  competition 
and  regulate  prices,  while  permitting  such 
combinations  among  purchasers,  does  not 
render  the  legislation  repugnant  to  the 
Federal  Constitution  as  denying  the  equal 
protection  of  the  laws.  International 
Harvester  Co.  v.  Missouri  ex  rel.  Attorney 
General.  52:  525,  34  Sup.  Ct.  Rep.  859,  234 
U.  S.  199,  58  L.  ed.  1276. 

b.  Due  process  of  law  or  law  of  the 
land;  guaranty  of  right  to  life,  lib- 
erty, and  property. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Requiring  attorney  to  defend  indigent  per- 
son without  compensation,  see  At- 
torneys, 59. 

See  also  supra,  161;  infra,  631. 

348.  The  general  declaration  in  Wis. 
Const,  art.  I,  §  1,  that  governments  are  in- 
stituted to  secure  the  inherent  rights  of 
life,  liberty,  and  the  pursuit  of  happiness, 
is  a  limitation  upon  legislative  power,  de- 
signed in  part  at  least  to  prevent  clearly 
unreasonable  enactments  restricting  natural 
private  rights.  State  v.  Redmon,  14:  229, 
114  N.  W.  137,  134  Wis.  89. 

349.  A  constitutional  amendment  increas- 
ing the  salary  of  certain  judges,  and  char- 
ging the  increase  against  the  county  treas- 
uries where  they  are  located,  will  not  be 
declared  invalid,  at  the  instance  of  a  coun- 
ty affected  by  it,  as  conflicting  with  the 
due  process  and  equal  protection  provisions 
of  the  Federal  Constitution.  Hammond  v. 
Clark,  38:  77,  71  S.  E.  479,  136  Ga.  313. 
Health. 

See  also  infra,  372;  Health,  20. 

350.  The  constitutional  right  of  a  citizen 
Dlseat  1-52  L.R.A.(N.S.) 


to  personal  liberty  is  not  infringed  by  an 
order  of  the  state  board  of  health  forbidding 
him  to  make  use,  for  drinking  purposes,  of 
a  polluted  water  supply.  State  Bd.  of 
Health  v.  St.  Johnsbury,  23:  766,  73  Atl.  581, 
82  Vt.  276.  (Annotated) 

Loitering  on  street. 

351.  An  attempt  by  a  municipal  corpora- 
tion to  prohibit  loitering  on  the  streets  so 
far  as  applied  to  persons  conducting  them- 
selves in  a  peaceable,  orderly  manner,  dis- 
turbing no  one.  and  committing  no  overt 
act.  is  an  interference  with  the  constitu- 
tional rights  of  personal  liberty.  St.  Louis 
v.  Gloner,  15:973,  109  S.  W.'30,  210  Mo. 
502.  (Annotated) 
Burial    regulations. 

352.  Refusal  to  permit  one  to  bury  the 
dead  body  of  his  relative  or  friend,  except 
under  an  unreasonable  limitation,  unconsti- 
tutionally interferes  with  his  private  rights. 
Wyeth  V.  Thomas,  23:  147,  86  N.  E.  925, 
200  Mass.  474. 

Unauthorized  publication  of  portrait. 
Impairment  of  contract  obligation  by  stat- 
ute as  to,  see  infra,  784. 

353.  The  publication  of  one's  photograph 
without  his  consent  does  not  interfere  with 
his  constitutional  right  to  liberty.  Henry 
V.  Cherry,  24:  991,  73  Atl.  97,  30  R.  L  13. 

354.  A  statute  forbidding  the  use,  with- 
out his  consent,  of  the  portrait  of  another 
person  for  purposes  of  advertising  or  trade, 
does  not  unconstitutionally  restrict  one's 
liberty.  Rhodes  v.  Sperry  &  Hutchinson 
Co.  34:  1 143,  85  N.  E.  1097,  193  N.  Y.  223. 
Custody  of  child. 

As    to    delinquent    children,  see  infra,  357, 
358. 

355.  The  statutory  attempt  to  confer 
upon  a  father  the  right  to  grant  the  cus- 
tody of  his  minor  children,  to  the  exclusion 
of  the  supervision  of  the  mother  over  them, 
violates  the  constitutional  right  of  mother 
and  child  to  liberty.  Tillman  v.  Tillman^ 
26:  781,  66  S.  E.  1049,  84  S.  C.  552. 
Compulsory    treatment    of   inebriates. 

356.  A  statute  providing  for  the  commit- 
ment of  inebriates,  without  their  consent,  to 
a  public  hospital  conducted  by  the  state 
for  the  treatment  of  inebriates,  does  not 
deprive  inem  of  their,  liberty  without  due 
process  of  law.  Leavitt  v.  Morris,  17:  984, 
117  N.  W.  393,  105  Minn.  170.  (Annotated) 
Delinquent  children. 

See  also  Infants,  3,  25. 

357.  For  the  state  to  take  charge,  care, 
and  custody  of  a  minor,  under  the  provisions 
of  Idaho  Sess.  Laws  1905,  p.  106,  entitled 
"An  Act  To  Provide  for  the  Care  of  Delin- 
quent Children,"  for  the  purpose  of  protect- 
ing, educating,  and  training  him,  does  not 
deprive  him  of  his  liberty  without  due  proc- 
ess of  law,  within  the  meaning  of  Idaho 
Const,  art.  1,  §  13.  Re  Sharp,  18:  886,  96 
Pac.  563,  15  Idaho,  120.  (Annotated) 

358.  Subjecting  a  delinquent  child  to 
proper  restraint  and  guardianship  does  not 
unconstitutionally  deprive  him  of  his  lib- 
erty.    Lindsay  v.  Lindsay,  45:  908,   100  X. 

E,  892,  257  111.  328.  (Annotated) 


560 


CONSTITUTIONAL  LAW,  II.  b,  2. 


2.  A8  to  property  rights  generally. 
a.  In  general. 

As  to  confiscation  of  property,  see  Con- 
fiscation. 

Original  jurisdiction  of  appellate  court 
in  suit  to  prevent  confiscation  of  private 
property,  see  Courts,  231. 

Effect  of  provision  against  forfeiture  on 
statute  denying  husband  who  murders 
wife  right  to  inherit  her  estate,  see 
Descent  and  Distribution,  9b. 

Necessity  of  compensation  on  taking  of 
property,  see  Eminent  Domain,  III.  c. 

Prohibiting  sale  of  game  lawfully  killed, 
see  Game  Laws,  5. 

Taking  of  property  without  due  process  by 
state  institution,  see  Pleading,  154; 
State  Institutions,  7,  8. 

See  also  supra,  47,  204. 

359.  No  public  policy  of  the  state  can  be 
allowed  to  override  the  positive  guaranties 
of  the  Constitution,  or  devest  persons  of 
their  title  and  property  except  in  the  way 
the  law  provides.  Hill  v.  Woodward,  39; 
538,  57  So.  294,  100  Miss.  879. 

360.  The  provisions  of  the  Ohio  Consti- 
tution forbid  the  laying  of  an  imposition 
upon  the  private  property  of  one  for  the 
sole  benefit  of  another.  Alma  Coal  Co.  v. 
Cozad,  20:  1092,  87  N.  E.  172,  79  Ohio  St. 
348. 

361.  The  reserved  right  to  repeal  corpo- 
rate charters  does  not  authorize  the  con- 
fiscation or  destruction  of  property,  or  its 
taking  without  just  compensation.  State 
ex  rel.  Wausau  Street  R.  Co.  v.  Bancroft, 
38:  526,  134  N.  W.  330,  148  Wis.  124. 

362.  A  state  constitutional  provision  that 
no  person  shall  be  deprived  of  property  with- 
out due  process  of  law,  and  the  provisions  of 
the  14th  Amendment  of  the  United  States 
Constitution  as  to  property  rights,  extend  to 
the  property  held  and  used  by  a  railroad 
corporation,  since  the  beneficial  use  of  such 
property  is  in  natural  persons,  and  the  law 
forbids  the  doing  by  indirection  that  which 
is  forbidden  to  be  done  directly.  Seaboard 
A.  L.  R.  Co.  v.  Simon,  20:  126,  47  So.  1001, 
56  Fla.  545. 

363.  A  municipality  which  prohibits  a  lot 
owner  from  exercising  his  right  to  go  to  and 
from  his  property  over  and  by  way  of  the 
street  on  which  it  abuts,  or  to  employ  the 
means  necessary  to  reach  the  street,  de- 
prives him  of  his  property  without  due 
process  of  law.  Sandpoint  v.  Doyle,  17: 
497,  95  Pac.  945,  14  Idaho,  749. 

364.  Securing,  by  writ  of  sequestration 
the  books  and  property  of  a  corporation 
pending  an  appeal  by  its  officers  from  an 
order  adjudging  them  in  contempt  for  re- 
fusing to  turn  them  over  to  a  receiver,  does 
not  deprive  the  oflBcers  of  any  of  their  con- 
stitutional property  rights.  Manning  v. 
Mercantile  Securities  Co.  30:  725,  90  N.  E. 
238,  242  111.  584. 

365.  The  attempt  to  make  an  owner  who 
fails  to  take  from  one  contracting  to  con- 
Digest  1-52  I<.R.A.(Iir.S.) 


struct  for  him  a  ditch  or  reservoir  a  bond 
conditioned  to  pay  all  claims  for  materials, 
farm  produce,  provisions,  or  goods  of  any 
kind  furnished  the  contractor  or  subcon- 
tractor, personally  liable  for  such  claims, 
is  invalid,  as  taking  property  without  due 
process  of  law,  and  denying  him  the  equal 
protection  of  the  laws,  so  far  as  it  attempts 
to  include  claims  for  materials  which  do 
not  go  to  enhance  the  value  of  his  prop- 
erty. George  Bolln  Co.  v.  North  Platte 
Valley  Irrig.  Co.  39:  868,  121  Pac.  22,  19 
Wyo.  542.  (Annotated) 

366.  Charter  authority  to  a  municipal 
corporation  to  acquire  and  operate  ice 
plants  in  connection  with  its  waterworks, 
and  to  issue  bonds  for  that  purpose,  is 
not  violative  of  the  constitutional  provision 
declaring  that  all  citizens  of  the  United 
States  resident  in  the  state  shall  be  citi- 
zens thereof,  and  shall  be  protected  in 
the  full  enjoyment  of  the  rights,  privileges, 
and  immunities  due  to  such  citizenship,  in 
that  it  deprived  citizens  of  the  right  of 
private  property  existing  under  the  repub- 
lican form  of  government  as  established  by 
the  United  States  Constitution.  Holton  v. 
Camilla,  31:  116,  68  S.  E.  472,  134  Ga. 
560. 

367.  By  making  acceptance  of  free  trans- 
portation unlawful,  an  anti-pass  law  is  not 
rendered  unconstitutional  as  depriving  of 
his  property  without  due  process  of  law,  a 
physician  who  has  contracted  with  a  rail- 
road company  to  render  services  to  it,  at 
its  request,  in  consideration  of  $25  per 
month  and  an  annual  pass  over  its  lines, 
which  services  do  not  require  a  major  por- 
tion of  his  time.  State  v.  Martyn,  23:  217, 
117  N.  W.  719,  82  Neb.  225. 

AVhat  is  property. 

Right  to  oflSce  as  property,  see  infra,  531a, 
589. 

Right  to  take  water  for  irrigation  as  prop- 
erty protected  against  injury  by  pol- 
lution, see  Waters,  222,  223. 

368.  The  constitutional  right  of  every  man 
lawfully  to  acquire  property  includes  the 
right  of  making  contracts  for  personal  serv- 
ices as  a  means  of  acquiring  property;  and 
each  person  is  entitled  to  make  such  con- 
tracts in  reference  to  such  lawful  business 
or  occupation  as  he  may  choose,  free  from 
hindrance  or  obstruction  by  his  fellow  men, 
whether  acting  individually  or  as  an  asso- 
ciation, except  when  exercised  for  the  pro- 
tection of  equal  or  superior  rights  on  their 
part.  Brennan  v.  United  Hatters  of  N.  A. 
(N.  J.  Err.  &  App.)  9:  254,  65  Atl.  165,  73 
N.  J.   L.  729. 

370.  A  "slot  machine,"  incapable  of  use 
for  any  purpose  except  in  violation  of  the 
penal  provisions  of  the  anti-gambling  law, 
is  not  property  within  the  meaning  and  pro- 
tection of  §  13,  art.  1,  of  the  state  Consti- 
tution, which  provides  that  "no  person  shall 
.  .  .  be  deprived  of  life,  liberty,  or  prop- 
erty without  due  process  of  law."  Mullen 
V.  Mosely,  12:  394,  90  Pac.  986,  13  Idaho, 
457. 


CONSTITUTIONAL  LAffi,  I.  b,  2. 


561 


Corporation  as  person. 

371.  A  constitutional  provision  forbid- 
ding the  deprivation  or  tal-cing  of  propertj' 
without  due  process  of  law  and  witliout 
just  compensation  extends  to  property  held 
by  corporations,  as  natural  persons  are  the 
beneficial  owners  of  the  property  though  it 
be  held  and  used  by  a  corporate  entity 
State  V.  Atlantic  C.  L.  E.  Co.  32:  639,  47 
So.  969,  56  Fla.  617. 

Health    regnlations. 

372.  Property  rights  are  unconstitutional- 
ly interfered  with  by  a  statute  which 
authorizes  a  board  of  health  when,  in  Rs 
judgment,  the  public  health  requires  it.  to 
require  the  surface  of  any  private  passage- 
way to  be  paved  or  otherwise  provided  \\  itli 
a  roadbed  at  the  expense  of  its  owners,  in 
a  manner  and  witli  materials  satisfactory 
to  tlie  board.  Durgin  v.  Minot.  24:  241,  8!) 
N.  E.  144,  203  Mass.  26.  (Annotated) 
Crematories. 

373.  An  attempt  by  a  county  to  forbid  the 
maintenance  of  more  than  one  crematory 
in  any  township  is  invalid  as  an  unconsti- 
tutional interference  with  property  rights, 
so  far  as  it  applies  to  the  location  of  one 
in  a  cemetery  which  has  been  established  in 
a  locality  devoted  to  cemeteries,  with  few 
dwellings  in  the  immediate  vicinity,  and 
no  buildings  devoted  to  business  except  to 
that  of  burying  the  dead.  Abbey  Land  & 
Improv.  Co.  v.  San  Mateo,  52:  408,  139  Pae. 
139  Pac.  10G8,  167  Cal.  434.  (Annotated) 
School  districts. 

374.  A  school  district  is  not  deprived  of 
its  property  without  due  process  of  law  by 
a  statute  transferring  its  schoolhouse  and 
lot  to  another  district,  together  Avith  the 
territory  in  which  they  are  located,  since  it 
holds  such  property  merely  as  trustee  for 
the  state.  Pass  School  Dist.  v.  Hollvwood 
City  School  Dist.  26:  485,  105  Pac.  122,  156 
Cal.  416. 

Revocation   of  teacher's  license. 

375.  Authorizing  the  county  superintend- 
ent to  revoke  a  school  teacher's  license  does 
not  deprive  the  latter  of  hia  constitutional 
right  of  access  to  the  courts,  or  to  just 
compensation  for  the  taking  of  property; 
nor  does  it  unconstitutionally  confer  judi- 
cial power  upon  a  ministerial  officer.  Stone 
v.  Fritts,  15:  1147,  82  N.  E.  792.  169  Ind. 
361. 

AVeeds  in  hig^hxray. 

376.  Requiring  a  landowner  to  cut,  or 
pay  for  cutting,  the  noxious  weeds  in  the 
abutting  highway  to  the  center  thereof,  does 
not  deprive  him  of  his  property  without  due 
process  of  law.  Northern  P.  R.  Co.  v. 
Adams  County,  51 :  274,  138  Pac.  307,  78 
Wash.  53.  (Annotated) 
Building   re^nlations. 

Equal  protection  and  privileges,  see  supra, 

178,  179. 
Police  power  as  to,  see  infra,  660-663. 
See  also  infra,  518. 

379.  A  municipal  ordinance  requiring  a 
permit  from  the  city  as  a  prerequisite  to  the 
right  to  build  a  house  does  not  deprive  a 
landowner  of  his  property  without  due  proc- 
ess of  law,  in  violation  of  the  14th  amend- 
Digest  1-52  L.R.A.(N.S.) 


ment.     Fellows  v.  Charleston,  13:  737,  59  S. 
E.  623,  62  W.  Va.  665.  (Annotated) 

380.  There  is  no  unconstitutional  taking 
of  property  by  forbidding  the  repair  of 
frame  buildings  within  the  fire  limits  of  a 
municipal  corporation,  so  as  to  make  and 
keep  them  habitable.  State  v.  Lawing,  51 : 
62,  80   S.   E.  69,   164  N.   C.  492. 

(Annotated) 

S81.  An  attempt  by  a  municipal  corpora- 
tion to  forbid  the  replacing  of  a  few  wooden 
shingles  on  a  roof  within  the  fire  limits  with 
others  of  the  same  material,  which  cannot 
materially  affect  the  fire  risk,  is  an  uncon- 
stitutional interference  with  property  rights. 
Seneca  v.  Cochran,  26:  124,  66  S.  E.  288, 
84  S.  C.  279. 
Spendthrift   trusts. 

Impairment    of    obligation    of    contract    by 
statute  as  to,  see  infra,  782. 

382.  A  statute  subjecting  a  percentage 
of  the  income  from  an  existing  spendthrift 
trust  to  execution  does  not  unconstitution- 
ally deprive  the  beneficiary  of  his  property 
without  due  process  of  law,  as  destroying 
a  vested  right.  Brearley  School  v.  Ward, 
40:  1215,  94  N.  E.  1001,  201  N.  Y.  358. 
Destruction     of     diseased     plants     or 

trees. 

383.  A  statute  providing  for  the  destruc- 
tion or  treatment  of  trees  and  plants  infect- 
ed with  insect  or  plant  diseases,  in  accord- 
ance with  the  rules  and  regulations  of  an 
entomological  conunission,  the  expense  there- 
of to  be  borne  by  the  owner,  and  no  com- 
pensation to  be  paid  him  for  the  trees  or 
plants  destroyed,  is  not  unconstitutional  on 
the  ground  that  it  provides  for  taking  pri- 
vate property  without  due  process  of  law, 
as  it  rests  wholly  with  the  legislature  to 
determine  whether,  in  the  exercise  of  its 
power  of  police  regulation,  the  individual 
whose  property  is  destroyed  shall  receive 
compensation  therefor.  Balch  v.  Glenn, 
43:  1080,  119  Pac.  67,  85  Kan.  735. 

( Annotated ) 
Competition     by     municipality     xeith 
private  business  enterprises. 

384.  The  letting  by  a  municipal  corpora- 
tion of  an  unused  building  belonging  to  it 
for  public  entertainments,  to  avoid  loss  ot 
revenue  therefrom,  and  lighten  the  burden 
of  the  taxpayers,  is  not  an  unconstitutional 
interference  with  the  liberty  and  property 
of  owners  of  property  devoted  to  that  use, 
with  whom  the  municipality  comes  into 
competition.  Gottlieb-Knabe  &  Co.  v.  Mack- 
lin,v  31 :  580,    71  Atl.  949,  109  Md.  429. 

(Annotated) 

385.  No  unconstitutional  interference  with 
rights  of  liberty  or  property  of  a  fuel  mer- 
chant is  caused  by  the  establishment  by  a 
municipality  of  public  yards  at  which  fuel 
is  sold  to  its  inhabitants  for  cost.  Laughlin 
V.  Portland,  51:  1143,  90  Atl.  318,  111  Me. 
486.  (Annotated) 
Right  to  take  property  by  \pill  or  in- 
heritance. 

386.  The  right  to  take  property  by  will  or 
by  inheritance  is  a  natural  right,  which  can- 
not wholly  be  taken  awav,  or  substantially 

36 


562 


CONSTITUTIONAL  LAW,  xl.  b,  2. 


impaired,  by  the  legislature.     Nunneniaclier 
V.  State,  9:  121,  108  N.  W.  627,  129  Wis.  190. 

(Annotated) 
Unanthorized  publication  of  portrait. 
Impairment  of  contract  obligation  by  stat- 
ute as  to,  see  infra,  784. 
See  also  supra,  353,  354. 

387.  A  statute  which  in  general  terms  for- 
bids the  use  of  the  portrait  of  another 
person  for  advertising  or  trade  purposes 
without  his  written  consent  will  be  given 
a  prospective  operation,  and  therefore  does 
not  deprive  the  owner  of  such  portrait  of 
his  property  without  due  process  of  law. 
Rhodes  V.  Sperry  &  Hutchinson  Co.  34:  ii43> 
85  N.   E.   1097,   193  N.  Y.  223. 

Cnring   defective   acknowledsments. 

388.  A  statute  curing  defectively  ac- 
knowledged deeds  which  ha4  been  on  record 
for  ten  years  does  not  deprive  of  due  pro- 
cess of  law  one  claiming  under  a  deed 
from  the  grantor's  heirs  taken  fifty  years 
after  the  execution  of  the  original  deed, 
with  full  knowledge  of  the  facts.  Downs 
V,  Blount,  31:  1076,  170  Fed.  15,  95  C.  C. 
A.  289. 

389.  No  unconstitutional  transfer  of  prop- 
erty from  one  person  to  another  is  effected 
by  a  statute  validating  an  informal  ac- 
knowledgment of  a  deed  which  is  supported 
by  a  sufficient  consideration,  so  as  to  make 
it  binding  on  the  grantor.  Eckles  v.  Wood, 
34:  832,  136  S.  W.  907,  143  Ky.  451. 
Liability  for  water  and  light  fur- 
nished  tenant. 

390.  Provisions  in  a  city  charter  making 
an  owner  of  premises  liable  for  water  and 
light  furnished  by  the  municipality  to  his 
tenant  are  not  unconstitutional  upon  the 
ground  that  they  provide  for  the  taking  of 
property  without  due  process  of  law  in 
that  they-  require  one  person  to  pay  the 
debts  of  another.  East  Grand  Forks  v. 
Luck,  6:  198,  107  N.  W.  393,  97  Minn.  373. 

(Annotated) 
Sale  of  railroad  ticket. 
Equal   protection   and  privileges  as   to,   see 
Constitutional  Law,  218,  219. 

391.  The  purchaser  of  a  railroad  ticket  is 
not  deprived  of  his  property  by  forbidding 
him  to  sell  it  through  ticket  brokers.  State 
V.  Thompson,  4:  480,  84  Pac.  476,  47  Or.  492. 

(Annotated) 
Automobiles. 

392.  The  owner  of  an  automobile  cannot, 
under  the  due  process  and  equal  protection 
clauses  of  the  Constitutions,  be  made  liable 
for  injury  to  strangers,  through  its  use  by 
persons  who  have  taken  it  without  his 
knowledge  or  permission,  although  their 
acts  do  not  constitute  larceny.  Daugherty 
v.  Thomas,  45:  699,  140  N.  W.  615,  174  Mich. 
371.  (Annotated) 
Transportation    of    tirater    outside    of 

state. 
Equal   protection   and   privileges  as  to,   see 
supra,  193. 

393.  The  provisions  of  N.  J.  act  May  11, 
1905  (P.  L.  1905,  p.  461),  which  prohibit  the 
acquisition  of  ownership  in  flowing  waters 
for  the  purpose  of  transporting  them  out  of 
the  state,  do  not  contravene  that  portion  of 
Digest  1-52  L.R.A.(N.S.) 


the  Bill  of  Rights  contained  in  the  state 
Constitution,  which  declares  that  all  men 
have  certain  natural  and  inalienable  rights, 
among  which  are  those  of  acquiring,  pos- 
sessing, and  protecting  property.  McCarter 
ex  rel.  Kummel  v.  Hudson  County  Water 
Co.  14:  197,  65  Atl.  489.  70  N.  J.  Eq.  695. 

394.  A  state  statute  prohibiting  the  trans- 
portation without  the  state,  through  pipes 
or  conduits,  of  the  waters  of  lakes,  ponds, 
or  streams,  does  not  contravene  the  14th 
Amendment  of  the  Constitution  of  the 
United  States,  which  declares  that  no  state 
shall  deprive  any  person  of  property  with- 
out due  process  of  law.  McCarter  ex  rel. 
Kummel  v.  Hudson  County  Water  Co, 
14:  197,  05  Atl.  489,  70  N.  J.  Eq.  695. 
Riparian  rights. 

See  also  Statutes,  62. 

395.  A  state  which  has  for  a  long  period 
of  time  encouraged  the  improvement  of  its 
water  power  by  granting  riparian  owners 
authority  to  build  dams  in  aid  of  naviga- 
tion, and  to  enjoy  the  benefit  of  the  power 
thereby  developed,  until  large  industries 
have  grown  up  about  the  dams  and  large 
investments  been  made  in  them,  cannot,  in 
view  of  the  due  process  and  compensation 
clauses  of  the  Constitution,  attempt  to  as- 
sume ownership  of  the  dams  by  declaring 
them  to  be  nuisances,  unless  compensation 
is  made  to  the  state  for  the  right  to  con- 
tinue their  use  and  consent  given  to  their 
transfer  to  the  state  or  to  strangers  for  » 
compensation  less  than  their  value.  State 
ex  rel.  Wausau  Street  R.  Co.  v.  Bancroft, 
38 :  526,  134  N.  W.  330,  148  Wis.  124. 
Administration      of     livine      person's 

estate. 
See  also  infra,  593. 

396.  The  legislature  cannot  confer  upon 
the  court  jurisdiction  to  make  a  conclusive 
determination  without  inquiry  as  to  the 
fact  that  a  person  who  has  been  absent  for 
more  than  seven  years  is  dead,  and  proceed 
to  distribute  his  propoty.  Savings  Bank 
of  Baltimore  v.  Weeks,  6:  690,  64  Atl.  295, 
103  Md.  601. 

396a.  The  legislature  may  provide  for  the 
administration  of  the  estates  of  persons  who 
absent  themselves  from  the  state  and  con- 
ceal their  whereabouts  for  a  certain  specified 
period  of  years.  New  York  L.  Ins.  Co.  v. 
Chittenden,  11:  233,  112  N.  W.  96,  134  Iowa, 
613. 

397.  A  statute  for  the  distribution,  after 
reasonable  notice,  of  the  property  of  one 
who  has  absented  himself  for  fourteen 
years,  does  not  violate  his  constitutional 
property  rights.  Nelson  v.  Blinn,  15:  651, 
83  N.  E.  889,  197  Mass.  279. 
Manufacture  of  alcohol. 

Equal   protection   and   privileges  as   to,  see 
Constitutional  I.iAw,  192. 

398.  Although  the  sale  of  alcohol  for  cer- 
tain specified  purposes  and  under  certain 
restrictions  is  not  unlawful,  the  Georgia 
prohibition  law,  act  1907,  p.  81,  prohibiting 
entirely  the  manufacture  of  alcohol  within 
the  state,  is  not  a  violation  of  a  constitu- 
tional provision  that  no  person  shall  be 
deprived  of  life,  libeity,  or  property  except 


CONSTITUTIONAL  LAVk',  II.  b,  3. 


5G3 


bj  due  process   of  law.     Cureton  v.   State, 
49:  182,  70  S.  E.  332,   135  Ga.  660. 

(Annotated) 
Stone  ([narries. 

399.  An  ordinance  which  absolutely  pro- 
hibits the  opening  or  working  of  stone  quar- 
ries within  certain  prescribed  limits,  wheth- 
er it  can  be  done  without  injury  to  other 
property  or  the  public  or  not,  is  void  as  de- 
priving the  owner  of  his  property  without 
due  process  of  law.  Re  Kelso,  2:  796,  82 
Pac.  241,  147  Cal.  609.  (Annotated) 

b.  Eminent  domain. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Equal  protection  and  privileges  as  to,  see 
supra,  177. 

As  to  notice  and  hearing  in,  see  infra,  594- 
596. 

As  to  measure  of  damages  in  eminent  do- 
main, see  Damages,  III.  1. 

400.  The  mere  fact  that  a  railroad  was 
constructed  under  legislative  authority  at 
a  time  wlien  the  Constitution  made  it  lia- 
ble to  pay  only  for  property  taken  in  its 
exercise  of  the  right  of  eminent  domain  does 
not  render  a  requirement  that  its  owner  pay 
for  injuries  to  property  through  the  opera- 
tion of  the  road  in  such  manner  as  to  consti- 
tute a  private  nuisance  a  taking  of  its 
property  without  due  process  of  law.  Ala- 
"bama  &  V.  R.  Co.  v.  King,  22:  603,  47  So. 
«57,  93  Miss.  379. 

3.   Taxation  and  public  itnprovements. 

/See  also  sa^ne  heading  in  Digest  L.R.A. 
1-10.) 

Equal  protection  and  privileges  as  to,  see 
supra,  II.  a,  4. 

Municipal  taxation  of  farm  lands,  see  Mu- 
nicipal COKPOKATIOXS,  97. 

As  to  taxes,  generally,  see  Taxes. 

401.  Charter  authority  to  a  municipal 
■corporation  to  acquire  and  operate  ice 
plants  in  connection  with  its  waterworks, 
and  to  issue  bonds  for  that  purpose,  is  not 
•violative  of  the  constitutional  provision 
■that  no  person  shall  be  deprived  of  his 
property  except  by  due  process  of  law.  m 
that  his  property  is  taken  under  the  guise 
•01  taxation,  and  applied  to  the  carrying  on 
■of  a  common  private  manufacturing  and 
commercial  enterprise.  Holton  v.  Camilla, 
31:  116,  68   S.  E.  472,  134  Ga.  560. 

402.  No  deprivation  of  property  without 
due  process  of  law  is  effected  by  a  statute 
requiring  an  employer  to  list  employees 
liable  to  poll  tax,  and  to  pay  tiie  tax  and 
deduct  it  from  wages,  where  the  statute 
provides  for  collection  of  the  tax  by  suit 
in  which  the  employee  is  entitled  to  a  hear- 
ing, and  in  which  the  employer  can,  by  dis- 
claiming and  paying  the  amount  in  dispute 
into  court,  avoid  liability  for  costs.  Thurs- 
ton County  V.  Tenino  Stone  Quarries.  9:  306, 
•87  Pac.  634,  44  Wash.  351.  (Annotated) 
Digest  1-52  Ii.R.A.(N.S.) 


Assessment    of    railroad    property. 

403.  A  statute  authorizing  the  ascertain- 
ment of  the  value  of  the  intangible  assets 
of  a  railroad  by  deducting  the  assessed  val- 
uation of  its  tangible  property  from  the  ag- 
gregate market  value  of  its  stock  and  bonds, 
unless  the  taxing  board  concludes  that  in 
the  particular  case  this  will  not  result  in 
giving  the  true  value,  is  not  arbitrai-y,  so  as 
to  deprive  the  corporation  of  its  property 
without  due  process  of  law,  or  violate  the 
requirements  of  uniformity  of  taxation. 
Missouri,  K.  &  T.  R.  Co.  v.  Shannon,  10: 
681,  100  S.  VV.  138,  100  Tex.  379. 

Tax  on  transfer  of  corporate  stock. 

404.  Placing  a  tax  on  the  transfer  of  cor- 
porate stock  only  is  not  such  an  arbitrary 
classification  as  to  deprive  the  owner  of  his 
property  without  due  process  of  law.  Peo- 
ple ex  rel.  Hatch  v.  Reardon,  8:  314,  77  N. 
E.  970,  184  N.  Y.  431.  (Annotated) 
Succession   tax. 

Equal   protection   and  privileges   as   to,   see 

supra,  227-231. 
As  impairment  of  obligation  of  contract,  see 

infra,  774. 

405.  The  constitutional  right  of  acquiring 
and  protecting  property  does  not  include 
the  mere  privilege,  right,  or  expectancy  of 
inheritance,  so  as  to  prevent  the  legislature 
from  placing  a  tax  upon  such  privilege. 
Rodman  v.  Com.  ex  rel.  Selligman,  33:  502, 
113  S.  W.  61,  130  Ky.  88.  (Annotated) 

406.  Vesting  the  interest  of  the  state  in  a 
succession  tax  at  the  time  of  the  decedent's 
death  does  not  constitute  a  deprivation  of 
property  without  due  process  of  law,  where 
the  statute  contains  piovisions  for  the  ap- 
praisement of  the  tax,  which  must  be  ful- 
filled before  the  tax  is  collected.  Trippet  v. 
State,  8:  1210,  86  Pac.  1084,  149  Cal.  521. 

407.  A  statute  relating  to  estates  ad- 
ministered upon  in  county  courts,  providing 
for  an  initial  fee  of  $5,  and  a  further  fee, 
upon  the  determination  of  the  value  of  the 
estate,  of  $5  for  every  $1,000  or  fraction 
thereof  in  excess  of  the  first  thousand,  is, 
in  so  far  as  the  additional  charge  or  fee 
above  the  initial  fee  is  concerned,  a  viola- 
tion of  a  constitutional  provision  that  all 
courts  sliall  be  open,  and  every  man,  for  an 
injury  done  to  him  in  his  land,  goods,  per- 
son, or  reputation,  shall  have  remedy  by 
due  process  of  law,  and  right  and  justice 
administered  without  sale,  denial,  or  delay. 
Malin  v.  La  Moure  County,  50:  997,  145  N. 
W.   582,  27   N.   D.   140.  (Annotated) 

408.  Property  is  not  taken  without  due 
process  of  law,  contrary  to  U.  S.  Const., 
14th  Amend.,  by  the  imposition  of  the  tax 
authorized  by  N.  Y.  Laws  1896,  chap.  008, 
when  property  is  transferred  by  deed  in- 
tended to  take  effect  upon  the  death  of  the 
grantor.  Keenev  v.  Comptroller,  38:  1139, 
32  Sup.  Ct.  Rejp.  105,  222  U.  S.  525,  56 
L.  ed.  299.  (Annotated) 

409.  The  interest  of  those  who  will  take 
under  a  will  or  deed  upon  failure  of  a  donee 
of  a  power  of  appointment  therein  to  exer- 
cise it  is  not  so  far  vested  that  the  im- 
position of  a  succession  tax  upon  the  pass- 
ing to  them  of  the  estate,  in  case  of  such 


564 


CONSTITUTIONAL  LAW,  II.  b,  4. 


failure,  can  be  considered  as  a  taking  of 
property  without  due  process  of  law.  Minot 
V.  .Stevens,  33:  236,  93  N.  E.  973,  207  Mass. 
588.  (Annotated) 

410.  A  limitation  upon  the  constitutional 
power  of  contract,  by  imposing  a  tax  upon 
property  passing  after  tlie  death  of  the 
grantor,  in  accordance  witli  a  contract  made 
prior  thereto,  is  not  prevented  by  a  clause 
in  tlie  provision  of  the  Constitution  con- 
ferring power  upon  the  legislature  to  enact 
laws,  declaring  that  they  must  not  be  re- 
pugnant or  contrary  to  the  Constitution. 
Carter  v.  Craig,  52:  211,  90  Atl.  598,  77  N. 
H.  200. 

Public   impTovements. 
Police  power  as  to,  see  infra,  642,  642a. 
Notice  and  hearing  as  to,   see   infra,   606, 
606. 

411.  The  assessment  of  an  area  tax  upon 
property  does  not  deprive  the  owner  of  his 
property  without  due  process  of  law,  if  he 
lias  a  right  to  be  heard,  either  before  the 
assessing  body  or  in  tlie  courts.  Bowes  v. 
Aberdeen,  30:  709,  109  Pac.  309,  58  Wash. 
535. 

412.  A  municipal  corporation  cannot  be 
authorized  by  the  legislature  to  subdivide 
a  tract  of  private  property  within  its  limits 
for  the  purpose  of  levying  a  tax  for  water 
mains  with  house  connections,  under  a  con- 
stitutional provision  that  no  person  shall 
be  deprived  of  his  property  without  due 
process  of  law.  Chicago  v.  W^ells,  23:  405, 
86  N.  E.  197,  236  111.  129.  (Annotated) 

413.  The  selection  of  a  person  owning 
land  within  the  district  to  assess  the  bene- 
fits accruing  from  the  improvement  of  a 
drainage  ditch  deprives  other  property  own- 
ers of  due  process  of  law.  Comrs.  of  Union 
Drainage  Dist.  No.  1  v.  Smith,  16:  292,  84 
N.  E.  370,  233  111.  417.  (Annotated) 

414.  An  assessment  by  a  city  upon  lot 
owners  for  cost  of  paving  a  street  does  not 
deprive  them  of  their  property  without  due 
process  of  law,  although  it  is  by  the  num- 
ber of  front  feet  of  lots  abutting  on  the 
street,  and  not  according  to  benefits,  and 
no  notice  of  the  assessment  is  given  to  the 
lot  owners,  llciwner  v.  Elkins,  52:  1035, 
71  S.  E.  184,  69  W.  Va.  255. 

415.  Charter  power  conveyed  to  a  niimicl- 
pality  by  the  legislatiire  to  regulate,  pro- 
vide for,  and  compel  by  ordinance  the  con- 
struction and  repair  of  sidewalks  and  pave- 
ments, and,  in  case  the  owner  of  an  abutting 
lot  fails  to  comply  with  the  provisions  of 
such  ordinance,  to  construct  the  improve- 
ment and  make  the  cost  thereof  a  lien  upon 
the  lot,  is  not  violative  of  the  constitutional 
provision  that  no  person  shall  be  deprived 
of  life,  liberty,  or  property  witliout  due 
process  of  law,  nor  shall  private  property 
be  taken  without  just  compensation,  on  the 
theory  that  it  provides  for  fixed  cliarges 
or  taxes  against  property  without  any  ref- 
erence to  benefits,  and  that  no  provision  is 
made  for  giving  notice  to  the  property  own- 
er to  enable  him  to  have  a  hearing  as  to 
the  assessment  or  benefit  thereof  prior  to 
the  lien  being  placed  upon  his  property, 
where  the  charter  provision  provides  for  the 
Digest   1-52  I<.R.A.(N.S.) 


enforcement  of  the  lien  by  an  action  at  law 
or  suit  in  equity,  in  which  tlie  owner  neces- 
sarily has  an  opportunity  of  being  heard 
and  of  making  any  defense  which  he  may 
have.  Anderson  v.  Oca  la,  52:  287,  64  So. 
775,  —  Fla.  — . 

4:.  As  to  regulation  of  husiness ;  insjiec- 
tion;  license;  n^strictions  on  right 
of  contract. 

a..  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Equal  protection  and   privileges   as  to,   see 

supra,  II.  a,  5. 
Regulation  of  fishing,  see  Fisheries. 
Requiring   fruits    and    candies    exposed    for 

sale  to  be  protected  from  flies  and  dust, 

see  Municipal  Cobpobations,  193. 
See  also  supra,  262;  infra,  688,  706;  Taxes, 

41. 

416.  No  constitutional  right  of  liberty  or 
property  is  interfered  with  by  requiring  an 
employer  advertising  for  help  during  the 
existence  of  a  strike  to  mention  its  exist- 
ence. Com.  V.  Libbey,  49:  879,  103  N.  E. 
923,  216  Mass.  356.  (Annotated) 

417.  No  constitutional  rights  of  liberty  or 
property  are  interfered  with  by  an  ordi- 
nance prohibiting  any  exliibition  of  anat- 
omy in  connection  with  a  place  Avhore  medi- 
cal treatment  is  given  or  nieui.inc  sold. 
Chicago  V.  Shaynin,  45:  23,  101  N.  E.  224, 
258   111.   69. 

Proliibitiug;  mannfactuTing  establish- 
ment near  park. 

419.  Forbidding  the  operation  near  a  pub- 
lic park  of  a  manufacturing  establishment 
using  planes  and  saws  operated  by  power 
deprives  the  owner  of  his  property  without 
compensation  and  without  due  process  of 
law.  St.  Louis  v,  Dreisoerner,  41 :  177,  147 
S.  W.  998,  243  Mo.  217. 

Trade  inducements. 

As  to  trading  stamps,  see  infra.  459. 

Police  power  as  to,  see  infra,  693,  694. 

420.  An  act  providing  that  those  offering 
special  inducements  to  the  public,  or  to  pro- 
spective purchasers  or  customers  in  trade, 
shall  pay  a  certain  amount  of  such  induce- 
ment or  offer  in  cash  if  such  prospective 
purchaser  or  customer  so  elect  in  lieu  of 
the  sum  promised  in  trade,  and  providing 
a  penalty  for  failure  to  do  so,  is  invalid  as 
an  unconstitutional  deprivation  of  liberty 
and  property.  Kanne  v.  Segerstrom  Piano 
Mfg.  Co.  41:  1041,  137  N.  W.  170,  \Y%  Minn. 
483.  (Annotated) 
Water   companies. 

421.  It  is  not  confiscation  of  the  prop- 
erty of  a  water  company  without  due  proc- 
ess of  law  to  require  it  to  furnish  con- 
nections and  supply  with  water  a  resident 
of  the  city  who  tenders  a  month's  rent  in 
advance,  where  it  is  shown  that  the  rents 
for  a  year  are  over  twice  the  admitted  cost 
for  making  the  connection,  and  tliere  is  no 
claim  that  they  are  too  low,  notwithstand- 


CONSTITLTIONAL  LAW,  II.  b,  4. 


505 


ing   there   is  no   assurance   that   such   resi- 
dent will  continue  the  use  of  the  water  for 
any  stated  time.     Hatch  v.  Consumers'  Co. 
40:  263,  104  Pac.  670,  17  Idaho,  204. 
Dance   halls. 
Equal  protection   and   privileges  as   to,   see 

supra,  244,  245. 
Police  power  as  to,  see  infra,  695,  696. 

422.  Requiring  a  license  to  conduct  a 
public  dance  hall  does  not  interfere  with 
any  constitutional  riglit  of  liberty  or  prop- 
erty. Mehlos  V.  Milwaukee,  51:  1009,  140 
N.  W.  882,  156  Wis.  591.  (Annotated) 
Treating   in   saloons. 

Police  power  as  to,  sec  infra,  646. 

423.  The  keeper  of  a  saloon  is  not  de- 
prived of  his  propertj'  without  due  process 
of  law  or  of  the  equal  protection  of  tlie 
laws,  because  he  is  made  punisliable  for 
permitting  treating  in  his  place  of  busi- 
ness, while  the  persons  purcliasing  the  li- 
quor are  not  punished  for  doing  the  treat- 
ing. Taeoma  v.  Keisel,  40:  757,  124  Pac. 
137,  G8  Wash.  685. 

IRilliard    and   pool   rooms. 

Equal   protection   and  privileges   as  to,   see 

supra,  243. 
Police  power  as  to.  see  infra,  092. 

424.  The  proprietor  of  an  existing  billiard 
and  pool  room  is  not  deprived  of  his  prop- 
erty without  due  process  of  law,  contrary 
to  U.  S.  Const.  14th  Amend.,  by  the  passage 
of  a  municipal  ordinance  prohibiting  the 
keeping  of  billiard  or  pool  tables  for  hire 
or  public  use.  Murpliv  v.  People,  41:  153, 
32  Sup.  Ct.  Rep.  697,"^  225  U.  S.  623,  56 
L.  ed.  1229. 

BrJclsyard. 

425.  An  unconstitutional  taking  or  de- 
stroying of  private  property  without  due 
process  of  law  is  effected  by  a  municipal  or- 
dinance making  a  yard  within  the  city 
limits  where  bricks  are  burned,  within  1,200 
feet  of  a  private  residence  or  public  school- 
house  or  park  without  permission,  a  nui- 
sance. Denver  v.  Rogers,  25:  247,  104  Pac. 
1042,  46  Colo.  479. 

Undertakers. 

Police  power  as  to,  see  infra.  714-716. 

426.  Refusal  to  permit  one  to  engage  in 
the  business  of  an  undertaker,  without  good 
reason,  violates  his  constitutional  rights  to 
life,  libertv,  and  the  pursuit  of  happiness. 
Wyeth  V. 'Thomas,  23:  147,  86  N.  E.  925, 
200  Mass.  474. 

427.  The  attempt  to  compel  an  under- 
taker to  secure  a  license  as  an  embalmer 
before  engaging  in  the  practice  of  his  pro- 
fession unconstitutionally  interferes  with 
his  libertv.  People  v.  Ringe,  27:  528,  90  N. 
E.  451,  197  N.  Y.  143. 

428.  Requiring  three  years  of  continuous 
service  as  assistant  to  an  undertaker  be- 
fore a  license  can  be  secured  to  engage  in 
the  undertaking  business  interferes  with 
the  con.stitutional  liberty  of  one  wishing  to 
engage  in  such  business.  People  v.  Ringe, 
27:  528,  90  N.  E.  451,  197  N.  Y.  143. 
Moving  picture  machine  operators. 
Equal  protection   and   privileges   as   to,   see 

supra,  240,  241,  295. 

429.  Requiring  one  to  secure  a  license 
Digest  1-52  KR.A.(N.S.) 


after  examination  before  operating  -a  mov- 
ing picture  machine  in  a  large  city  docs  not 
deprive  him  of  his  liberty  or  property  with- 
out due  process  of  law.  State  ex  rel.  Ebert 
V.  Loden,  40:  193,  83  Atl.  564,  117  Md.  373. 

(Annotated) 
Electricians. 

Equal  protection   and  privileges  as  to,   see 
supra,  242. 

430.  A  statute  permitting  unlicensed  elec- 
tricians to  be  employed  by  the  lighting  and 
electric  i-ailway  companies  and  the  depart- 
ment of  police  and  public  buildings  of  New 
Orleans,  for  the  installation  and  mainte- 
nance of  their  "equipment  pole  line  serv- 
ices" and  '"nieters,"  which  work  is  important, 
and  requiring  electricians  employed  by 
others  for  other  than  work  of  minor  im- 
portance to  be  licensed,  contravenes  the 
constitutional  requirement  that  all  persons 
be  protected  in  their  right  of  property, 
including  the  right  to  earn  a  livelihood. 
State  V.  Gantz,  24:  1072,  50  So.  524,  124  La. 
535. 

Bai'bers. 

Equal   protection   and  privileges  as  to,   see 
supra,  239. 

431.  Requiring  a  two-year  period  of  in- 
struction before  practising  the  barber's 
trade  does  not  unconstitutionally  deprive 
one  of  his  liberty  or  property,  or  the  gains 
of  his  own  industry,  without  due  process 
of  law,  confer  special  privileges  or  immuni- 
ties, abridge  the  privileges  of  citizenship. 
or  deny  him  the  equal  protection  of  the 
laws.  Moler  v.  Whisman,  40:  629,  147  S.  W. 
985,  243  Mo.  571.  (Annotated) 
Practice   of  medicine. 

Equal  protection   and   privileges   as   to,   see 

supra,  279. 
Police  power  as  to,  see  infra,  707-711. 
Revocation  of  physician's  license,  see  infra, 

555. 

432.  The  legislature  cannot,  under  a  Con- 
stitution protecting  the  rights  of  liberty 
and  property,  provide  for  the  revocation 
of  the  license  of  a  physician  for  advertis- 
ing to  treat  diseases  of  the  sexual  organs 
if  the  advertisements  are  not  couched  in 
terms  which  injuriously  affect  the  public 
morals.  Chenoweth  v.  State  Bd.  of  Medical 
Examiners,  51:958,  141  Pac.  132,  —  Colo. 
— ,  (Annotated) 
Attorneys. 

As  to  lien  of,  see  infra,  457. 

433.  The  constitutional  rights  of  an  at- 
torney at  law  to  liberty  and  the  pursuit  of 
happiness  are  not  interfered  with  by  a  stat- 
ute forbidding  him  to  solicit  business  either 
personally  or  through  a  solicitor.  State  ex 
rel.  Mackintosh  v.  Rossman,  21:  821,  101 
Pac.  357,  53  Wash.  1. 

Plumbers. 

Equal   protection   and   privileges   as  to,   see 
supra,  284. 

434.  Making  the  procurement  of  a  license 
prerequisite  to  engaging  in  the  plumbing 
business  is  within  the  police  power,  and  does 
not  violate  the  constitutional  provisions 
against  the  deprivation  of  liberty  or  proper- 
ty without  due  process  of  law.     Douglas  v. 


.")C6 


CONSTITUTIONAL  LAW,  II.  b,  4. 


People -ex  rel.  Ruddv,  8:  1116,  80  N.  E.  341, 

225  111.   536.  ■  (Annotated) 

Banking. 

Equal  protection  and  privileges  as  to,  see 
supra,  280-283. 

Police  power  as  to,  see  infra,  700-702. 

Who  may  question  constitutionality  of  stat- 
ute, see  Action  or  Suit,  51. 

435.  The  state  cannot  limit  the  transac- 
tion  of   ordinary   banking   business   to   cor- 

fiorations,  where  the  Constitution  protects 
iberty  and  the  acquisition  and  protection 
of  property,  and  provides  that  no  person 
shall  be  deprived  of  them  without  due  proc- 
ess of  law.  Marymont  v.  Nevada  State  Bkg. 
Board,  32:  477,  111  Pac.  295,  33  Nev.  333. 

436.  The  property  of  a  savings  bank  is 
not  taken  without  due  process  of  law  by 
Mass.  Laws  1907,  chap.  340,  providing  that 
deposits  which  have  remained  inactive  and 
unclaimed  for  thirty  years,  where  the  claim- 
ant is  unknown  or  the  depositor  cannot  be 
found,  shall  be  paid  to  the  treasurer  and 
receiver  general,  to  be  held  by  him  as  trus- 
tee for  the  true  owner  or  his  legal  repre- 
sentatives. •  Provident  Inst,  for  Sav.  v.  Ma- 
lone,  34:  1 129,  31  Sup.  Ct.  Rep.  661,  221  U. 
S.  660,  55  L.  ed.  899. 

Railroads;   carriers. 

Equal  protection  and  privileges  as  to,  see 

supra,  II.  a,  3,  b. 
Due   process   of   law   as  to   right   of   action 

or  defense  against,  see  infra,  II.  b,  7, 

b,    (1)    (b). 
Police  regulation,  see  infra,  683-686. 
Regulation  of  rates,  see  infra,  493-498. 
As  to  penalty,  see  infra,  563-567. 
See  also  infra,  460. 

437.  An  arbitrary  and  unreasonable  regu- 
lation is  not  within  the  authority  of  a  rail- 
road commission,  and  if  the  action  of  a 
state  through  its  railroad  commission  is 
not  a  legally  authorized  regulation  of  a 
public  service,  or  if  the  authorized  regula- 
tion is  arbitrary  and  unreasonable,  and  in 
effect  deprives  the  beneficial  owner  of  prop- 
erty used  in  rendering  the  public  service, 
of  the  property  rights,  in  a  manner  or  to 
an  extent  contemplated  by  law  as  a  limita- 
tion upon  the  rights  of  those  devoting  their 
property  to  a  public  use,  such  action,  though 
under  the  form  of  regulation,  is  in  law  a 
deprivation  of  property  without  due  process 
of  law.  State  v.  Atlantic  C.  L.  R,  Co.  32: 
639,  47  So.  969,  56  Fla.  617. 

438.  A  statute  subjecting  to  a  penalty  a 
railroad  company  which  operates  any  loco- 
motive on  a  main  line  after  dark  without  an 
electric  headlight  of  a  specified  character 
is  not  unconstitutional  as  depriving  it  of 
its  property  without  due  process  of  law 
because  it  makes  no  exception  in  case  of 
emergencies  such  as  are  likely  to  occur. 
Atlantic  Coast  Line  R.  Co.  v.  State,  32:  20, 
69  S.  E.  725,  135  Ga.  545. 

439.  A  statute  requiring  railroad  com- 
panies to  place  electric  headlights  of  a  cer-  1 
tain  size  and  power  on  their  locomotives 
does  not  deprive  thom  of  their  property 
without  due  process  of  law  because  it  will 
require  a  destruction  of  all  in  present  use 
not  of  that  character,  and  deprives  the  com- 
Digest   1-52  L.R.A.(N.S.) 


panics  of  the  right  to  make  contracts  and 
manage  their  own  business.  Atlantic  Coast 
Line  R.  Co.  v.  State,  32 :  20,  69  S.  E.  725, 
135   Ga.   545. 

440.  That  a  full  crew  law,  being  within 
the  police  power  of  the  state,  requires  ad- 
ditional expenditures  on  the  part  of  the 
railroad  company,  does  not  render  it  in- 
valid as  taking  property  without  due  proc- 
ess of  law.  Pennsvlvania  R.  Co.  v.  Ewing, 
49:  977,  88  Atl.  775,  241  Pa.  581. 

(Annotated) 

441.  The  enforcement  against  a  railroad 
company  of  rules  and  regulations  made  by 
the  railroad  commissioners  to  prevent  unjust 
discriminations  or  other  abuses,  in  the  ab- 
sence of  a  showing  of  unreasonableness,  will 
not  constitute  a  taking  of  property  with- 
out due  process  of  law,  or  deprive  the  rail- 
road company  of  the  equal  protection  of  the 
laws.  State  ex  rel.  Ellis  v.  Atlantic  C.  L. 
R.  Co.  12:  506,  41  So.  705,  52  Fla.  646. 

442.  The  fact  that  preferred  stockholders 
may  be  deprived  of  a  considerable  part  of 
the  noncumulative  dividends  from  net  earn- 
ings, to  which  they  would  otherwise  be 
entitled,  by  the  enforcement  of  the  regula- 
tion adopted  by  the  Interstate  Commerce 
Commission  in  the  exercise  of  its  author- 
ity under  the  act  of  February  4,  1887.  §  20, 
as  amended  by  the  act  of  June  29,  1906,  to 
prescribe  a  uniform  system  of  accounting 
and  bookkeeping  for  the  carriers  subjoct  to 
that  act,  which  regulations  reject  the  theory 
that  the  cost  of  property  abandoned  as  an 
incident  to  permanent  improvement  should 
remain  in  the  property  account  rather  than 
be  charged  to  operating  expenses,  does  not 
justify  the  conclusion  that  such  stockholders 
are  thereby  deprived  of  their  property 
without  due  process  of  law.  Kansas  City 
S.  R.  Co.  V.  United  States,  52:  i,  34  Sup.  Ct. 
Rep.  125,  231  U.  S.  423,  58  L.  ed.  296. 

443.  Requiring  a  railroad  company,  un- 
der a  statute  providing  that  railroad  corpo- 
rations shall  make  "reasonable  provision" 
for  the  transportation  of  coal  mined  along 
their  lines,  to  construct  a  switch  and  side 
track  on  its  right  of  way,  as  a  reasonable 
provision  for  the  transportation  of  coal  of- 
fered for  shipment  by  the  coal  operator, 
does  not  amount  to  a  command  that  the 
carrier  enter  into  a  contract  for  reasonable 
provisions  for  the  transportation  of  such 
coal,  or  that  it  build  and  maintain  a  per- 
manent structure  on  its  right  of  way,  nor 
to  the  taking  of  the  private  property  of 
the  carrier  for  private  use  without  due 
process  of  law,  but  is  a  mere  command  for 
the  temporary  use  by  such  carrier  of  a 
part  of  its  right  of  way  for  the  purpose  of 
performing  a  duty  imposed  upon  it  by  law. 
State  ex  rel.  Mt.  Hope  Coal  Co.  v.  White 
Oak  R.  Co.  28:  1013,  64  S.  E.  630,  65  W.  Va. 
15. 

444.  The  attempt  by  the  state  to  compel 
a  railroad  company  to  construct  and  oper- 
ate a  spur  track  to  a  private  mill  is  void, 
as  a  taking  of  property  for  private  use 
without  due  process  of  law.  Northern  P. 
R.  Co.  V.  Railroad  Commission,  28:  1021, 
108  Pac.  938,  68  Wash.  360. 


CONSTITUTIONAL  LAW,  II.  b,  4. 


667 


445.  A  statute  prescribing  a  prima  facie 
reasonable  minimum  rate  of  speed  at  which 
live  stock  may  be  transported  between  intra- 
state points,  and  providing  a  penalty  for 
violation  thereof,  does  not  deprive  the  car- 
rier of  property  without  due  process  of  law, 
although  the  expense  of  transporting  live 
stock  may  be  materially  increased  thereby, 
as  the  carrier  has  ample  recourse  in  an  in- 
crease of  rates.  Cram  v.  Chicago,  B.  &  Q. 
R.  Co.  26:  I022,  122  N.  W.  31,  84  Neb.  607, 
123  N.  W.  1045,  85  Neb.  586. 

446.  An  attempt  by  the  legislature  arbi- 
trarily to  fix  the  weight  of  the  standards  of 
lumber  cars,  and  to  compel  the  carrier  to 
deduct  the  Aveight  so  fixed  from  the  net 
weight  of  the  lumber  placed  on  the  car  and 
charge  freight  on  the  balance  only,  is  void 
as  an  unconstitutional  interference  with  the 
carrier's  property  rights.  State  ex  rel. 
Washington  ]\fill  Co.  v.  Great  Northern  R. 
Co.  6:  908,  86  Pac.  1056.  43  Wash.  658. 

447.  The  property  of  the  initial  carrier 
is  not  taken  in  violation  of  U.  S.  Const., 
5th  Amend.,  to  pay  the  debt  of  an  inde- 
pendent connecting  carrier  whose  negli- 
gence may  have  been  the  sole  cause  of  a 
loss,  bv  the  Carmack  amendment  of  June 
29,  1906,  to  the  act  of  February  4,  1887,  § 
20,  under  which  an  interstate  carrier  vol- 
untarily receiving  property  for  transporta- 
tion from  a  point  in  one  state  to  a  point 
in  another  state  is  made  liable  to  the  holder 
of  the  bill  of  lading  for  a  loss  anywhere 
en  route,  in  spite  of  any  agreement  or 
stipulation  to  the  contrary  with  a  right  of 
recovery  over  against  the  carrier  actually 
causing  the  loss,  since  the  liability  of  the 
receiving  carrier  which  results  in  such  a 
case  is  that  of  a  principal,  f^r  the  negli- 
gence of  his  own  agents.  Atlantic  C.  L.  R. 
Co.  V.  Riverside  Mills.  31:  7,  31  Sup.  Ct. 
Rep.  164,  219  U.  S.  186,  55  L.  ed.  167. 

448.  A  law  absolutely  giving  to  the  oc- 
cupant of  a  lower  berth  in  a  sleeping  car 
control,  at  his  option,  of  the  upper  berth  in 
case  of  its  not  being  occupied,  is  an  un- 
constitutional appropriation  of  the  prop- 
erty of  one  for  the  benefit  of  another.  State 
V.  Redmon,  14:  229,  114  N.  W.  137,  134  Wis. 
89. 

Milk   dealers. 

Equal  protection  and  privileges  of,  see  su- 
pra, 258,  259. 

Seizure  and  destruction  of  milk,  see  infra, 
612,  613. 

Police  power  as  to,  see  infra,  731-738. 

Revocation  without  notice,  of  permit  to  sell 
milk,  see  License,  34. 

449.  Requiring  milk  dealers  to  indicate 
indelibly  their  capacity  upon  glass  jars 
which  contain  the  milk  sold  does  not  un- 
constitutionally deprive  them  of  their  prop- 
erty in  the  old  jars.  Chicago  v.  Bowman 
Dairy  Co,  17:  684,  84  N.  E.  913,  234  111.  294. 
Sunday  latrs. 

Equal  protection   and   privileges  as  to,  see 

supra,  II.  a,  5,  b. 
Police  power  as  to,  see  infra,  687. 
As  to  Sunday  laws  generally,  see  Sunday. 
See  also  infra,  628. 

450.  The  provision  of  Idaho  act  March 
Digest  1-52  L.R.A.(N.S.) 


12,  1907,  setting  apart  Sunday  as  a  day  of 
public  rest,  and  forbidding  the  opening  of 
certain  places  of  business  and  amusement 
on  that  day,  does  not  take  property  without 
due  process  of  law  in  violation  of  the  14th 
Amendment  to  the  Constitution  of  the  Unit- 
ed States,  or  in  contravention  of  Idaho 
Const,  art.  1,  §  1.  State  v.  Dolan,  14:  1259, 
92  Pac.  995,  13  Idaho,  693. 

451.  A  statute  providing  for  the  punish- 
ment of  any  person  who  shall  keep  open  any 
playhouse  or  theater  on  Sunday  does  not 
apply  to  the  opening  of  such  place  for  reli- 
gious and  other  quiet,  legitimate,  and  or- 
derly exercise,  and,  therefore,  unconstitu- 
tionally interfere  with  property  rights  of 
the  owner  as  forbidding  legitimate  use  of  his 
property  on  that  dav.  State  v.  Herald,  20: 
433,  92  Pac.  376,  47  Wash.  538. 
Telegrapli  business. 

Equal  protection  and  privileges  as  to,  see 
supra,  290. 

452.  Privileges  and  immunities  of  citi- 
zens of  the  United  States  are  not  abridged, 
nor  is  due  process  of  law  denied,  contrary 
to  U.  S.  Const.,  14th  Amend.,  by  a  state 
statute  under  which,  as  construed  by  the 
state  courts,  a  telegraph  company  cannot 
limit  its  liability  for  its  negligent  failure 
to  deliver  a  telegram  addressed  to  a  per- 
son in  another  state.  Western  U.  Teleg. 
Co.  V.  Commercial  Milling  Co.  36:  220,  31 
Sup.  Ct.  Rep.  59,  218  U.  S.  406,  54  L.  ed. 
1088. 

b.   Restricting  right  of  contract. 

(1)   In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Prohibiting  carrier  from  refusing  to  put  on 
sale  ticket  of  connecting  road  at  price 
fixed  by  railroad  commission,  see  Car- 
riers, 999. 

As   to   Sunday   contracts,   see   Sunday,   IV. 

See  also  supra,  368,  410,  439;  infra,  504, 

453.  The    liberty    to    contract    is    not    a 
fundamental  constitutional  right.     State  v. 
J.  J.  Newman  Lumber   Co.  45:851,  59  So,^ 
923,  102  Miss.  802.  % 

454.  A  statute  requiring  all  county  print-* 
ing,  binding,  and  stationery  work  to  be  done 
in  the  county  for  which  the  work  is  in- 
tended, where  there  are  practical  facilities 
there  for  doing  the  same,  unless  the  charge 
made  be  greater  than  that  made  to  private 
individuals,  does  not  interfere  with  or  re- 
strict the  right  of  any  person  to  freely  con- 
tract, nor  does  it  deny  to  any  person  the 
equal  protection  of  the  law,  and  is  not 
therefore  repugnant  to  the  provisions  of  § 

1  of  the  14th  Amendment  to  the  Federal 
Constitution.  Re  Gemmill,  41:  711,  119  Pac. 
298,  20  Idaho,  732.  (Annotated) 

455.  A  statute  providing  that  no  agree- 
ment that  an  award  shall  be  final,  or  that 
a  certificate  of  an  architect  or  other  person 
is  required  as  a  condition  precedent  to  the 


568 


CONSTITUTIONAL  LAW,  II.  b,  4. 


maintenance  of  an  action  on  a  contract, 
shall  oust  the  jurisdiction  of  the  courts, 
violates  the  constitutional  ri^ht  to  acquire, 
possess,  and  protect  property,  which  includes 
the  right  to  contract.  Adinolfi  v.  Hazlett. 
48:  855,  88  Atl.  869,  242  Pa.  25. 

(Annotated) 

456.  Limiting  the  surety  which  a  proper- 
ty owner  may  take  from  one  contractitig  to 
do  work  for  him  to  secure  payment  of  la- 
borers and  materialmen  to  incorporated 
companies  deprives  him  of  his  liberty  to 
contract,  and  denies  him  the  equal  protec- 
tion of  the  laws.  George  Bolln  Co.  v.  North 
Platte  Valley  Irrig.  Co.  39:  868,  121  Pac. 
22,   19   Wyo.   542. 

Attorneys'   liens. 

457.  A  statute  giving  attorneys'  liens  on 
money  recovered  by  their  clients  is  not  un- 
constitutional as  depriving  their  adversa- 
ries of  a  property  right  to  buy  their  peace 
by  making  contracts  of  settlement.  Stand- 
idge  V.  Chicago  R.  Co.  40:  529,  98  N.  E.  96.3, 
254  111.  524.  (Annotated) 
Assignments  of  future  xtragea. 

458.  No  constitutional  right  to  contract  is 
infringed  by  requiring  assignments  of  future 
wages  to  secure  small  loans  to  be  accepted 
by  employers  in  writing,  consented  to  by 
the  wives  of  the  employees,  and  recorded,  to 
be  enforceable.  Mutual  Loan  Co.  v.  Mar- 
tell,  43:  746,  86  N.  E.  916,  200  Mass.  482. 

( Annotated ) 
Trading;  stamps. 

459.  Freedom  of  contract  is  not  uncon- 
stitutionally interfered  with  by  the  prohi- 
bition of  the  use  of  trading  stamps.  Dis- 
trict of  Columbia  v.  Kraft,  30:  957,  35  App. 
D.  C.  253.  (Annotated) 
Liability  of  connecting  carriers. 

460.  The  liberty  of  contract  secured  by 
U.  S.  Const.,  5th  Amend.,  was  not  uncon- 
stitutionally denied  by  the  enactment  by 
Congress,  in  the  exercise  of  its  power  under 
the  commerce  clause,  of  the  Carmack 
amendment  of  June  29,  1906,  to  the  act  of 
February  4,  1887,  §  20,  by  which  an  inter- 
state carrier  voluntarily  receiving  property 
for  transportation  from  a  point  in  one 
state  to  a  point  in  another  state  is  made 
liable  to  the  holder  of  the  bill  of  lading  for 
a  loss  anywhere  en  route  in  spite  of  any 
agreement  or  stipulation  to  the  contrary, 
with  a  right  of  recovery  over  against  the 
carrier  actually  causing  the  loss.  Atlantic 
R.  L.  R.  Co.  V.  Riverside  Mills,  31:  7,  31 
Sup.  Ct.  Rep.  164,  219  U.  S.  186,  55  L. 
ed.  167.  (Annotated) 
Combinations    or    discriminations    to 

destroy  competition. 

461.  The  application  to  a  combination 
which  has  benefited  instead  of  injured  the 
public,  of  a  statute  against  combinations 
which  tend  to  lesson  competition  in  the  im- 
portation, transportation,  manufacture,  or 
sale  of  commodities,  does  not  render  such 
legislation  repugnant  to  U.  S.  Const.,  14th 
Amend.,  as  unreasonably  and  arbitrarily 
limiting  the  right  of  contract.  Internation- 
al Harvester  Co.  v.  Missouri  ex  rel.  Attor- 
ney General,  52:  525,  34  Sup.  Ct.  Rep.  859, 
234  U.  S.  199,  58  L.  ed.  1276. 

Digest  1-52  Ii.R.A.(N.S.) 


462.  A  statute  enacted  to  prevent  unfair 
coniniercia!  discriminations  between  differ- 
ent sections,  conununities,  or  localities, 
wiiich  prohibits  the  use  and  sale  of  one's 
property  tor  the  purpose  of  destroying  the 
business  of  a  competitor,  and  provides  pen- 
alties for  violation  thereof,  is  not  uncon- 
stitutional on  the  ground  that  it  takes 
from  the  citizen  the  right  to  contract  and 
to  control  liis  property,  and  destroys  free- 
dom in  trade,  as,  under  the  act,  the  owner 
or  dealer  may  sell  for  any  price  he  chooses, 
or  on  any  terms  he  may  adopt,  without 
reference  to  the  effect  his  action  may  have 
upon  the  trade  or  business  of  otiiers,  so 
long  as  he  does  not  do  so  for  the  purpose  » 
of  destroying  competing  businesses.  State 
V.  Drayton,  23:  1287,  117  N.  W.  768,  82 
Neb.  254. 

403.  The  constitutional  right  to  freedom 
of   contract   is    not   infringed   by   a   statute 
forbidding  discrimination  in  prices  in  differ- 
ent sections  of  the  state,  for  the  purpose  of 
driving  competitors  out  of  business.     State 
V.   Central   Lumber   Co.  42:  804,   123  N.  W. 
504,  24  S.  D.  136. 
Insurance    contracts. 
Police  power  as  to,  see  infra,  697-699. 
See  also  lNStTR.\NCE,  625. 

464.  An  insurance  company  has  no  con- 
stitutional right  to  contract  which  will 
prevent  the  legislature  from  forbidding  it 
to  contract  for  exemption  from  liability  in 
ca.se  of  suicide  of  the  assured.  Head  Camp 
Pacific  Jurisdiction  v.  Sloss,  31:831,  112 
Pac.   49,  49   Colo.    177.  (Annotated) 

465.  No  constitutional  right  of  an  insur- 
ance company  to  contract  is  infringed  by  a 
statute  giving  railroad  companies  whose  ' 
operations  destroy  neighboring  property  by 
fire,  the  right  of  subrogation  to  any  insur- 
ance upon  the  property,  upon  their  pay- 
ment of  the  loss  inflicted.     Boston  Ice  Co. 

V.  Boston  &  M.  R.  Co.  45:  835,  86  Atl.  356, 
77  N.  H.  6. 
Money  lenders. 

466.  The  legislature  may  restrict  the  ex- 
action of  sums  in  connection  with  a  loan 
of  money  for  commissions,  examinations, 
and  renewals,  without  unconstitutionally 
impairing  personal  liberty  or  freedom  of 
contract.  State  ex  rel.  Ornstein  v.  Cary, 
11:  174,  105  N.  W.  792,  126  Wis.  135. 

(Annotated) 

(2)    With   employees. 

(See   also    same   heading   in   Digest   L.R.A. 

1-10.) 

See  also  supra,  368,  458 ;  infra,  519. 

Liability  for  injury   to   employees. 

Equal   protection   and   privileges  as  to,   see 
supra,  316-329. 

467.  An  attempt  to  make  an  employer  lia- 
ble for  injury  to  an  employee,  arising  out 
of  a  necessary  risk  or  danger  of  the  em- 
ployment, ©r  one  inherent  in  the  nature 
thereof,  without  fault  on  the  part  of  the 
employer,  unless  it  was  caused  by  the  seri- 
ous and  wilful  misconduct  of  the  employee. 


CONSTITUTIONAL  LA^Y,  II.  b,  4. 


569 


is  an  unconstitutional  taking  of  liberty  and 
property  without  due  process  of  law.  Ives 
V.  Soutk  Buffalo  R.  Co.  34:  162,  94  X.  E. 
431,  201  N.  Y.  271.  (Annotated) 

468.  A  statute  creating  an  employees'  in- 
demnity fund  by  assessments  upon  employ- 
ers in  hazardous  callings,  being  within  the 
police  power,  is  not  invalid  under  the  due 
process  of  law  clauses  of  the  Constitutions, 
as  interfering  with  freedom  of  contract, 
creating  liability  without  fault,  or  taking 
the  property  pf  one  employer  to  pay  tlie 
obligations  of  anotlier.  State  ex  rel.  Davis- 
Smith  Co.  V.  Clausen,  37:  466,  117  Pac. 
1101,  65  Wash.   156. 

469.  A  section  of  the  workmen's  com- 
pensation act,  abolishing  the  defenses  of  as- 
sumption of  risk  and  fellow  service  in 
actions  to  hold  employers  liable  for  personal 
injuries  to  servants,  in  cases  where  the  pro- 
visions of  the  act  are  not  accepted,  cannot 
be  said  to  make  the  act  coercive  upon  every 
employer  or  employee,  so  as  to  raise  the 
question  of  the  constitutionality  of  such 
abolition,  on  the  theory  that  the  employer 
will  be  compelled  to  accept  the  statute  to 
escape  such  defenses,  and  the  employee  will 
be  compelled  to  do  so  to  avoid  dismissal 
from  service.  Borgnis  v.  Talk  Co.  37:  489, 
133  X.  W.  209,  147  Wis.  327. 

470.  The  imposition  of  the  liability  creat- 
ed by  the  emploj'ers'  liability  act  of  April 
22,  1908,  upon  interstate  carriers  by  rail- 
road only,  and  for  the  benefit  of  all  their 
employees  engaged  in  interstate  commerce 
although  some  are  not  subjected  to  the  pe- 
culiar hazards  incident  to  the  operation 
of  trains,  or  to  hazards  that  differ  from 
those  to  which  other  employees  in  such 
commerce  not  within  the  act  are  exposed, 
does  not  invalidate  the  statute  under  the 
due-process-of-law  clause  of  the  5th  Amend- 
ment to  the  Federal  Constitution,  on  the 
ground  that  it  makes  an  arbitrary  and  un- 
reasonable classification, — even  assuming 
that  that  clause  is  equivalent  to  the  pro- 
vision of  the  14th  Amendment,  securing  the 
equal  protection  of  the  laws.  Mondou  v. 
New  York,  N.  H.  &  H.  R.  Co.  38:  44,  32 
Sup.  Ct.  Rep.  169,  223  U.  S.  1.  56  L.  ed.  327. 

471.  Congress,  possessing  the  power  exer- 
cised in  the  employers'  liability  act  of 
April  22,  1908,  to  regulate  the  relations,  of 
interstate  railway  carriers  and  their  em- 
ployees engaged  in  interstate  commerce, 
made  no  unwarranted  interference  with  the 
liberty  of  contract,  contrary  to  U.  S.  Const. 
5th  Amend.,  by  declaring  in  the  5th  sec- 
tion of  that  act  that  any  contract,  rule, 
regulation,  or  device  the  purpose  or  intent 
of  which  is  to  enable  the  carrier  to  exempt 
itself  from  the  liability  therein  created 
shall  be  void.  Mondou  v.  New  Y^ork,  N.  H. 
&  H.  R.  Co.  38:  44,  32  Sup.  Ct.  Rep.  169,  223 
U.  S.  1,  56  L.  ed.  327. 

472.  No  unconstitutional  abridgement  of 
the  right  of  a  railroad  company  to  con- 
tract, or  deprivation  of  its  constitutional 
liberty  of  contract  without  due  process  of 
law,  is  effected  by  a  statute  rendering  rail- 
road companies  liable  for  injiiri'?s  to  em- 
ployees through  the  negligence  of  fellow 
Digest   1-52  L.R.A.(N.S.) 


servants,  which  provides  that  any  contract 
or  device  whatsoever,  the  purpose  or  intent 
of  which  shall  be  to  enable  any  common 
carrier  to  exempt  itself  from  any  liability 
created  by  the  statute,  shall  be  void.  Wash- 
ington v.  Atlantic  C.  L.  R.  Co.  38:  867,  71 
S.   E.    1066,    136   Ga.    638.  (Annotated) 

473.  Forbidding  railroad  companies  which 
have  been  rendered  liable  for  injuries  to 
employees  by  the  negligence  of  fellow 
servants,  to  avoid  such  liability  by  relief 
or  indemnity  contracts  with  their  em- 
ployees, is  not  an  unconstitutional  inter- 
ference with  their  liberty  of  contract.  Mc- 
Guire  v.  Chicago,  B.  &  Q.  R.  Co.  33:  706, 
108  N.  W.  902,  131  Iowa,  340. 
Discrimination     in     favor     of     union 

labor. 
Equal   protection   and   privileges   as   to,   see 
supra,  300. 

474.  A  statute  providing  that  labor  em- 
ployed by  a  municipality  in  certain  named 
capacities,  or  by  private  employers  upon 
public  work,  shall  be  union  labor,  is  uncon- 
stitutional, especially  where  there  is  another 
statutory  provision  that  a  contract  of  this 
character  shall  be  awarded  to  the  lowest 
responsible  bidder  of  the  class  so  designated. 
Wright  V.  Hoctor,  52:  728,  145  N.  W.  704, 
95  Neb.  342.  (Annotated) 

475.  A  contract  let  in  accordance  with 
the  provisions  of  a  statute  providing  that 
labor  employed  by  a  municipalitj^  in  cer- 
tain named  capacities,  or  by  private  em- 
ployers upon  public  work,  shall  be  union 
labor,  is  a  taking  of  the  private  property 
of  taxpayers  of  the  municipality  without 
due  process  of  law,  and  is  in  violation  of 
§  3,  art.  1,  of  the  Nebraska  Bill  of  Rights. 
Wright  v.  Hoctor,  52:  728,  145  N.  W.  704, 
95  Neb.  342. 

As  to  membership  in  labor  organiza- 
tion. 

476.  A  statute  forbidding  an  employer  to 
exact  an  agreement  from  an  employee  not 
to  join  a  labor  union  infringes  his  constitu- 
tional rights  of  liberty.  People  v.  Marcus, 
7:  282,  77  N.  E.  1073,  185  N.  Y.  257. 

(Annotated) 

As  to  Hours  of  labor. 

Equal  protection  and  privileges  as  to,  see 
supra,   301-311. 

Police  power  as  to,  see  infra,  720. 

Impairment  of  contract  obligations,  see  in- 
fra, 781. 

477.  The  legislature  may  prohibit  con- 
tractors for  the  public  work  of  a  municipal 
corporation  to  exact  from  their  employees 
more  than  eight  hours  of  labor  daily.  Keefe 
V.  People,  8:  131,  87  Pac.  791,  37  Colo.  317. 

( Annotated ) 

478.  That  a  municipal  corporation  is  cre- 
ated by  the  Constitution  by  direct  vote  of 
the  people,  with  power  to  form  its  own  char- 
ter, does  not  deprive  the  legislature  of  power 
to  make  applicable  to  it  a  legal  Jimitation 
of  hours  of  labor  which  shall  be  required  in 
the  construction  of  public  improvements. 
Keefev.  People,  8:  131,87  Pac.  791,  37  Colo. 
317. 

479.  A  statute  providing  that  stationary 
firemen  in  certain  plants  operated  by  steam 


570 


CONSTITUTIONAL  LAW,  II.  b,  4. 


shall  not  be  employed  to  work  consecutively 
more  than  eight  hours  in  one  day  is  a  vio- 
lation of  the  14th  Amendment  of  the  Con- 
stitution of  the  United  States,  in  that  said 
act  denies  the  liberty  of  contract  in  relation 
to  labor,  where  tiierc  is  no  suggestion  that 
the  occupation  of  a  stationary  fireman  is 
dangerous  or  unhealthy  to  such  a  degree  as 
to  warrant  the  interference  of  the  state. 
State  V.  Barba,  45:  546,  61  So.  784,  132  La. 
768. 

480.  Restricting  the  right  to  employ 
laborers  in  manufacturing  and  repairing  es- 
tablishments to  ..  hours  per  day  except 
in  cases  of  emergency  or  where  public  ne 
cessity  requires  doe  not  deprive  the  pro- 
prietors of  their  liberty  or  property  with- 
out due  process  of  law,  deny  them  a  remedy 
by  due  course  of  law  or  the  equal  projection 
of  the  laws,  nor  abridge  their  privileges  or 
immiuiities.  State  v.  J.  J.  Newman  Lumber 
Co.  45:  851,  59  So.  923,  102  Miss.  802. 

481.  A  statute  providing  that  adult  fe- 
males shall  not  be  employed,  or  permitted,  or 
suffered,  to  work  in  a  factory  before  6 
o'clock  in  the  morning  or  after  9  o'clock  in 
the  evening,  is  an  undue  restriction  upon  the 
freedom  of  contracting,  and  cannot  be  up- 
held as  an  exercise  of  the  police  power.  Peo- 
ple v.  Williams,  12:  1130,  81  N.  E.  778,  18!) 
N.  Y.  131.  (Annotated) 

482.  Limiting  the  right  of  women  to  labor 
in  any  mechanical  establishment,  factory, 
or  laundry  more  than  ten  hours  in  every 
twenty-four,  does  not  unconstitutionally  in- 
terfere with  the  freedom  of  contract,  since 
the  public  interest  requires  such  limitation, 
and  it  is  therefore  within  the  police  power. 
W.  C.  Ritchie  &  Co.  v.  Wayman,  27:  994, 
91  N.  E.  695,  244  111.  509. 

483.  Forbidding  labor  in  a  public  laundry 
from  6  P.  M.  to  7  P.  m.  is  not  an  uncon- 
stitutional interference  with  liberty  or  prop- 
erty rights.  Ex  parte  Wong  Wing,  51:361, 
158  Pae.  695,  167  Cal.  109.         (Annotated) 

484.  The  constitutional  rights  of  employ- 
ers to  contract  are  not  impaired  by  a  stat- 
ute limiting  the  hours  during  which  minora 
may  be  employed.  State  v.  Shorey,  24:  1121, 
86  Pac.  881,  48  Or.  396. 

485.  The  constitutional  liberty  of  a  child 
is  not  impaired  by  a  statute  limiting  the 
hours  during  which  it  shall  be  permitted 
to  labor.  State  v.  Shorey,  24:  1121,  86  Pac. 
881.  48  Or.  396. 

As  to  xrtLgea. 

Equal  protection  and  privileges  as  to,  see 
supra,  312-315. 

Assignment  of  wages,  see  infra,  519. 

Who  may  question  constitutionality  of  stat- 
ute as  to  time  of  payment  of  wages,  see 
Statutes,  31. 

486.  The  constitutional  rights  of  a  corpo- 
ration to  contract  are  not  impaired  by  re- 
quiring it  to  pay  its  employees  weekly. 
Lawrence  v.  Rutland  R.  Co.  15:  350,  67  Atl. 
1091,  80  Vt.  370.  (Annotated) 

487.  The  legislature  may,  under  its  re- 
served power  to  amend  corporate  charters, 
require  railroad  companies  to  pay  their  em- 
ployees semimonthly,  in  cash,  without  de- 
priving them  of  liberty  or  property  without 
Digest  1-52  I,.R.A.(N.S.) 


due  process  of  law.  New  York  0,  &  H.  R. 
R.  Co.  v.  Williams,  35:  549,  92  N.  E.  404, 
199  N.  Y.  108.  (Annotated) 

488.  The  legislature,  having  reserved 
power  to  amend  the  charters  of  corpora- 
tions, may,  without  depriving  them  of  lib- 
erty or  property,  require  them  to  pay  their 
employees  semimonthly  instead  of  monthly, 
as  has  been  their  habit.  Arkansas  Stave 
Co.  V.  State,  27:  255,  125  S.  W.  1001,  94 
Ark.  27.  (Annotated) 

489.  Tlie  liberty  of  contract  on  the  part 
of  employees  is  not  unconstitutionally  in- 
terfered with  by  a  statute  requiring  their 
corporate  employers  to  pay  them  at  least 
twice  a  month.  Arkansas  Stave  Co.  v. 
State,  27:  255,  125  S.   W.  1001,  94  Ark.  27. 

490.  The  liberty  and  property  of  an  in- 
terstate railway  company  are  not  taken 
without  due  process  of  law  by  the  re- 
quirement of  X.  Y.  Laws  1897,  chap.  415, 
§  10,  as  amended  by  Laws  1908,  chap.  442, 
passed  in  the  exercise  of  the  reserved  power 
of  the  state  over  the  charters  of  its  corpora- 
tions, that  railway  employees  shall  be  paid 
their  wages  semimonthly,  the  effect  of 
which  is  to  prohibit  both  carrier  and  em- 
ployees from  contracting  otherwit^e.  Erie 
R.  Co.  v.  Williams,  51:  1097,  .34  Sup.  Ct. 
Rep.  761,  233  U.  S.  685.  .58  L.  ed.  1155. 

491.  A  statute  prohibiting  the  issuance  by 
an  employer  to  his  employee  of  checks  for 
labor  performed,  redeemable  in  goods  and 
merchandise,  interferes  with  the  right  of 
freedom  of  contract,  and  is  not  within  the 
police  power  of  the  state.  State  v.  Jordan, 
11:  603,  103  S.  W.  633,  51  Tex.  Crim.  Rep. 
531. 

c.  Regulation  of  rates. 

(See    also    same   heading   in  Digest   L.R.A. 
1-10.) 

Equal  protection  and  privileges  as  to,  see 

supra,  II.  a,  5,  d. 
Impairment  of  contract  obligations  by,  see 

infra,  790,  791. 
Sufficiency   of   allegations   as   to    rates,    see 

Pleading,  532. 

492.  A  statute  permitting  a  municipal 
corporation  to  fix  reasonable  rates  for  pub- 
lic service  corporations  is  not  unconstitu- 
tional, as  depriving  them  of  their  property 
without  due  process  of  law.  Home  Teleph. 
Co.  V.  Carthage,  48:  1055,  139  S.  W.  547, 
235  Mo.  644. 

Of  carrier. 

Equal  protection  and  privileges  as  to,   see 

supra,  212-217. 
Impairment  of  contract  obligations  by,  see 

infra,  791. 
Jurisdiction    of   Federal    Court   of   question 

as  to,  see  Courts,  249. 
Right  to  jury  in    determining    validity    of 

state     statute     establishing    rates    for 

railroad  transportation,   see  Jury,   14. 

493.  A  state  statute  enacted  in  a  state 
which  has  a  2-cent  passenger  fare  law,  re- 
quiring the  railroads  of  the  state  to  carry 


CONSTITUTIONAL  LAW,  IL  b.  4. 


671 


a  member  or  members  of  the  state  Nation- 
al Guard  traveling  in  the  discharge  of  mili- 
tary duties  under  orders,  at  the  rate  'of  1 
cent  per  mile,  the  railroad  company  having 
waived  the  defense  that  the  rate  therein 
provided  is  inadequate  compensation  for  the 
transportation  required,  does  not  contra- 
vene either  the  Federal  or  the  state  Consti- 
tution in  that  it  takes  defendant's  proper- 
ty without  compensation  or  without  due 
process  of  law.  or  deprive  it  of  the  equal 
protection  of  the  law.  State  ex  rel.  Simp- 
son V.  Chicago,  M.  &  St.  P.  R.  Co.  41 :  524, 
137  N.  W.  2,  118  Minn.  380.        (Annotated) 

494.  A  state  statute  prescribing  maxi- 
imum  coal  rates  for  the  transportation  by 
common  carriers  of  coal  in  car  load  lots 
within  the  state  does  not  violate  Constitu- 
tional provisions  that  no  person  shall  be 
deprived  of  life,  liberty,  or  property  without 
due  process  of  law.  State  ex  rel.  McCue  v. 
Northern  P.  R.  Co.  25:  looi,  120  N.  W.  869, 
19  N.  D.   45. 

495.  The  constitutional  libertj'  of  the  citi- 
zen to  make  contracts  was  not  infringed  by 
the  enactment  by  Congress,  in  the  exercise 
of  its  power  over  commerce,  of  the*  provi- 
sions of  the  act  of  June  29,  1906,  §  6,  which 
rendered  unenforceable  a  prior  contract, 
valid  when  made,  by  which  an  interstate 
carrier  agreed  to  issue  annual  passes  for 
life  in  consideration  of  a  release  of  a  claim 
for  damages.  Louisville  &  N.  R.  Co.  v. 
Mottley,  34:  671,  31  Sup.  Ct.  Rep.  265,  219 
U.  S.  407,  55  L.  ed.  297. 

496.  The  legislature  cannot  require  a 
street  car  company  to  carry  school  children 
for  half  fare  if  it  will  entail  a  loss  upon 
the  company,  or  require  it  to  shift  the  loss 
to  other  passengers  by  increasing  their 
fares.  Com.  v.  Interstate  Consol.  Street  R. 
Co.  11:  973,  73  N.  E.  530,  187  Mass.  436. 

497.  A  statute  requiring  a  street  car  com- 
pany to  carry  school  children  at  half  the 
regular  passenger  fare  is  not  invalid  as  de- 
priving it  of  its  property  without  due  proc- 
ess of  law,  where  there  is  nothing  to  pre- 
vent its  establishing  a  rate  of  regular  fare 
which  will  permit  the  service  to  yield  a 
profit.  Com.  v.  Interstate  Consol.  Street  R. 
Co.  11:  973,  73  N.  E.  530,  187  Mass.  436. 

498.  The  court  cannot  declare  unconstitu- 
tional a  statute  requiring  street  car  com- 
panies to  carry  school  children  at  half  fare, 
on  the  theory  that  it  deprives  the  company 
of  its  property  without  due  process  of  law, 
unless  it  is  clear  that  the  legislature  could 
not  have  concluded  that,  because  of  the  time 
at  which  th€  service  was  required,  and  the 
small  size  of  the  children,  and  the  probabili- 
ty that  more  would  be  carried  at  half  than 
at  full  fare,  the  company  would  suffer  no 
loss  from  carrying  children  at  that  rate. 
Com.  V.  Interstate  Consol.  Street  R.  Co. 
11:  973,  73  N.  E.  530,  187  Mass.  436. 

d.  Regulation  of  sales. 

(See   also   same   heading   in  Digest  L.R.A. 
1-70.) 

Equal   protection   and  privileges   as  to,   see 

supra,  II.  a,  5. 
Digest  1-52  I..R.A.(X.S.) 


Police  power  as  to,  see  infra,  11.  c,  4,  d. 
As  to  sales  in  bulk,  see  infra,  530,  531. 
See  also  supra,  449,  463. 

499.  A  statute  forbidding  the  making  of  a 
condition  to  the  sale  of  goods  to  be  resold, 
that  the  purchaser  shall  not  handle  the 
goods  of  other  dealers,  does  not  violate  the 
constitutional  rights  of  life,  liberty,  or 
property,  since  it  is  within  the  police  power 
of  the  state.  Com.  v.  Strauss,  11:  968,  78 
N.  E.  136,  191  Mass.  545.  (Annotated) 

500.  Prescribing  the  weight  of  the  loaves 
of  bread  to  be  sold  within  a  city  does  not 
deprive  the  baker  of  his  property  without 
due  process  of  law,  in  that  it  interferes 
with  his  freedom  of  contract  for  the  dis- 
position and  sale  of  it.  Chicago  v.  Schmid- 
inger,   44:  632,  90  N,   E.   369,   243   111.   107. 

(Annotated) 

501.  A  statute  requiring  the  marking  of 
small  packages  of  butter  intended  for  sale 
with  their  weight  in  figures  not  less  than 
a  quarter  of  an  inch  high  is  an  unconstitu- 
tional interference  with  liberty  and  prop- 
erty rights,  and  not  a  legitimate  exercise  of 
the  police  power.  Ex  parte  Dietrich,  5:873, 
84  Pac.  770,  149  Cal.  104. 

502.  A  statute  forbidding  one  to  sell  a 
product  from  the  original  package  labeled 
with  a  trademark,  upon  the  false  repre- 
sentation that  it  was  placed  in  the  package 
by  the  owner  of  the  label,  does  not  deprive 
the  seller  of  his  property  without  due 
process  of  law,  although  the  product  was 
in  fact  that  of  the  owner  of  the  label  and 
was  purchased  by  the  seller  for  the  purpose 
of  resale.  People  v.  Luhrs,  25:  473,  89  N.  E. 
171,  195  N.  Y.  377.  (Annotated) 
Sale  of  poisons. 

503.  A  druggist  is  not  deprived  of  his 
liberty  or  property  without  due  process  of 
law  by  a  statute  requiring  him,  when  sell- 
ing poisons  at  retail,  without  a  physician's 
prescription,  to  satisfy  himself  that  they 
are  to  be  used  for  a  legitimate  purpose, 
Katzman  v.  Com.  30:  519,  130  S.  W.  990, 
140  Ky.  124.  (Annotated) 
Tickets. 

Equal  protection  and  privileges  as  to,  see 
supra,  218,  219. 

Police  power  as  to,  see  infra,  744-746. 

Impairment  of  contract  obligations  by  stat- 
ute as  to,  see  infra,  792. 

504.  There  is  no  individual  property 
right  in  the  occupation  of  broker  in  rail- 
road transportation  which  cannot  be  taken 
away  by  legislative  regulation  in  the  in- 
terest of  the  traveling  public.  Ex  parte 
O'Neill,  3:  558,  83  Pac.   104,  41  Wash.   174. 

(Annotated) 

505.  Prohibiting  a  broker  in  theater 
tickets  from  selling  them  at  an  advance  over 
the  price  charged  at  the  box  office  unconsti- 
tionally  deprives  him  of  liberty  and  pro- 
perty. People  V.  Steele,  14:  361,  83  N.  E. 
236.*231  111.  340. 

506.  Depriving  a  theater  manager  of  the 
right  to  make  any  contract  he  chooses  as 
to  the  price  at  which  tickets  shall  be  sold 
is  an  unconstitutional  interference  with  his 
liberty.  People  v.  Steele,  14:  361,  83  N.  E. 
236,  231  111.  340. 


672 


CONSTITUTIONAL  I^W,  II.  b,  5. 


507.  A  statute  forbidding  the  resale  of 
tickets  to  places  of  amusement  at  a  price 
higher  than  that  originally  placed  upon 
them  violates  the  constitutional  right  of 
property,  where,  by  statute,  the  ticket  is  at 
least  an  irrevocable  license  to  its  purchases 
to  be  in  the  place  of  amusement  during  the 
performance.  Ex  parte  Quarg,  5:  183,  84 
Pac.  706,  149  Cal.  79.  (Annotated) 
Intoxicating   liqnors. 

Forbidding  manufacture  of  alcohol,  see 
supra,  398. 

Forbidding  treating  in  saloons,  see  supra, 
423. 

Equal  protection  and  privileges  as  to,  see 
supra,  265-277. 

Police  power  as  to,  see  infra,  739-743. 

Regulation  of  liquors  generally,  see  In- 
toxicating Liquors,  I. 

See  also  infra,  529,  628. 

508.  The  right  to  sell  liquor  is  not  an  in- 
herent right  of  the  citizen,  and  to  prohibit 
him  from  keeping  open  his  place  of  business 
from  12  o'clock  midnight  to  6  o'clock  in  the 
morning,  and  from  12  o'clock  Saturday 
night  until  6  o'clock  the  following  Monday 
morning,  does  not  deprive  him  of  property 
without  due  process  of  law,  but  is  a  re- 
straint which  in  no  wise  contemplates  a  de- 
struction of  his  business,  but  places  it  with- 
in the  bounds  therein  named,  and  is  simply 
a  regulation  and  restraint.  State  v.  Callo- 
way, 4:  109,  84  Pac.  27,  11  Idaho,  719. 

509.  The  provision  of  the  Constitution 
protecting  property  rights  is  not  violated  by 
a  municipal  ordinance  imposing  a  license 
tax  of  $1,000  per  year  upon  the  business  of 
selling  near  beer.  State  v.  Dannenburg,  26: 
850,  06  S.  E.  301,  151  N.  C.  718. 

510.  Forbidding  one  who  has  grown  grapes 
and  manufactured  them  into  wine,  large 
quantities  of  which  he  has  on  hand,  to  main- 
tain any  tippling  house,  dramshop,  cellar, 
saloon,  bar,  barroom,  sample  room,  or  any 
other  place  where  wine  is  sold  or  given 
away,  does  not,  unconstitutionally,  deprive 
him  of  his  property  without  just  compen- 
sation or  due  process  of  law.  Re  Young, 
22:  330,  97  Pac.  822,  154  Cal.  317. 

511.  Forbidding  the  keeping  for  stile,  for 
tippling  purposes  or  for  a  beverage,  of  cider 
which  is  in  fact  unfermented  and  nonintox- 
icating,  does  not  violate  the  constitutional 
rights  of  the  owner.  State  v.  Frederick - 
son,  6:  186,  63  Atl.  535,  101  Me.  37. 

( Annotated ) 
'  512.  The  provision  of  the  Georgia  Civil 
Code  1910,  §  1769,  in  regard  to  disc|ualifying 
one  who  has  violated  the  prohibition  law 
under  color  of  his  license  to  sell  what  is 
commonly  called  "near  beer,"  from  holding 
another  license  to  conduct  that  business,  as 
applied  to  one  who  has  been  convicted  of 
keeping  spirituous,  malt,  and  intoxicating 
liquors  at  his  place  of  business,  is  not  in 
conflict  with  the  14th  Amendment  of  the 
Constitution  of  the  United  States,  as  de- 
priving the  applicant  for  the  license  of  lib- 
erty or  property  without  due  process  of 
law;  nor  is  it  violative  of  the  clause  of  the 
state  Constitution  containing  a  similar  pro- 
Digest   1-52  I..R.A.(N.S.) 


vision.     Cassidv  v.  Wiley,  51:  128,  80  S.  E. 
1046,  141  Ga.  331. 
Itinerant  venders. 

Equal   protection   and   privileges  as  to,   see 

supra,  260,  261. 
Police  power  as  to,  see  infra,  703,  704. 

513.  Exacting  from  itinerent  venders  of 
patent  or  proprietary  medicines  a  license 
fee  of  $100  per  month  is  prohibitive,  and 
the  attempt  to  do  so  is  unconstitutional  as 
tending  to  deprive  sucli  venders  of  their 
liberty  and  property  without  due  process 
of  law,  and  as  tending  to  create  a  monopoly 
in  those  engaged  in  tfie  drug  business  with 
a  permanent  location.  People  Use  of  State 
Bd.  of  Health  v.  Wilson,  35:  1074,  94  N. 
E.  141,  249  111.  195.  (Annotated) 
Nursery   stock. 

Equal   protection   and  privileges  as  to,  see 

supra,  200. 
Police  power  as  to,  see  infra,  727. 

514.  Unconstitutional  burdens  and  restric- 
tions are  not  imposed  on  persons  en- 
gaged in  the  nursery  business  by  a  statute 
requiring  as  a  condition  precedent  to  the 
sale  of  nursery  stock  a  certificate  of  inspec- 
tion from  a  competent  entomologist,  or  an 
annual  license  fee  of  $10,  or  a  continuing 
bond  of  $5,000  without  sureties.  State  ex 
rel.  Hawley  v.  Nelson,  15:  138,  115  N.  W. 
93,  22  S.  D.  23. 

5.  As  to  use  or  enjoyment  of  property. 

(See   also    same   heading   in   Digest    L.R.A. 
1-10.) 

515.  A  statute  forbidding  the  construc- 
tion or  remodeling  of  a  schoolhouse  within 
a  certain  distance  of  a  railroad  track  will 
not  be  construed  as  applying  to  an  existing 
site  which  had  been  deeded  upon  condition 
that  it  should  revert  when  abandoned  for 
school  uses,  since  giving  it  an  application 
to  such  site  would  render  it  unconstitution- 
al as  taking  property  without  due  process 
of  law.  School  Corp.  v.  Heiney,  43:  1023, 
98  N.  E.  628,  178  Ind.  1.  (Annotated) 

516.  Forbidding  a  riparian  owner  on  a 
pond  from  wliich  a  municipal  water  supply 
is  taken,  to  bathe  in  the  pond,  does  not 
unconstitutionally  deprive  him  of  his  prop- 
erty rights,,  since  such  use  of  the  property 
is  not  reasonable.  State  v.  Morse.  34:  190, 
80  Atl.  189,  84  Vt.  387. 
Cemeteries. 

517.  A  cemetery  company  is  not  uncon- 
stitutionally deprived  of  its  property  with- 
out due  process  of  law  by  the  passage  of  a 
municipal  ordinance  forbidding  further  in- 
terments in  the  cemetery.  Laurel  Hill 
Cemetery  v.  San  Francisco,  27:  260,  93  Pac. 
70,  152  Cal.  464. 

Bnilding  restrictions. 

Equal   protection   and   privileges  as  to,   see 

supra,  178,  179. 
Police  power  as  to,  see  infra,  660-663. 
See  also  supra,  379-381. 

518.  Prohibiting  the  owner  of  a  lot  on  a 
residence  street  of  a  city  from  erecting 
thereon  a  business  block,  without  the  con- 
sent of  a  majority  of  the  neighboring  prop- 


CONSXIITJTIONAL  LAW,  II.  b,  5. 


573 


erty  owners,  and  requiring  the  building  to 
be  placed  on  a  building  line,  a  certain  dis- 
tance from  the  street,  deprives  him  of  his 
constitutional  property  riglits.  Willison  v. 
Cooke,  44:  1030,  130  Pac.  828,  54  Colo.  320. 
Assignment  of  salary. 
Equal  protection  and  privileges  as  to,  see 
supra,  ] 80-184. 

519.  A  statute  making  invalid  the  assign- 
ment of  any  salary  unless  it  is  in  writing, 
signed  and  acknowledged  by  the  assignor 
and  his  or  her  husband  or  wife,  and  the 
a.ssignment  entered  on  the  justice's  docket 
and  a  copy  served  upon  the  employer,  is  in- 
valid as  interfering  with  the  constitutional 
rights  of  liberty  and  property  of  the  one 
earning  it.  Massie  v.  Cessna,  28:  1108,  88 
N.  E.   152,  239  III.  352. 

Advertising  bills  or  signs. 

520.  The  right  to  the  use  of  property  is 
unconstitutionally  interfered  with  by  a  stat- 
ute forbidding,  under  penalty,  the  erection 
and  maintenance  of  any  structure  for  ad- 
vertising purposes  within  500  feet  of  a 
public  park  or  boulevard.  Haller  Sign 
Works  V.  Physical  Culture  Training  School, 
34:  998,  94  N.  E.  920,  249  111.  436. 

( Annotated ) 
Exportation,  of  Philippine   coin. 

521.  The  owner  of  Philippine  silver  coin 
is  not  deprived  of  his  property  therein  with- 
out due  process  of  law,  contrary  to  the  act 
of  July  1,  1902,  by  the  prohibition  against 
the  exportation  of  such  coin  from  the  Phil- 
ippine Islands,  under  penalty  of  forfeiture 
and  fine  or  imprisonment,  which  is  made  by 
Philippine  law  No.  1411,  enacted  by  the 
Philippine  Commission  in  the  exercise  of 
the  power  under  the  act  of  Congress  of 
March  2,  1903  (32  Stat,  at  L.  952,  chap.  980. 
U.  S.  Comp.  Stat.  Supp.  1909,  p.  893),  §  6, 
to  adopt  such  measures  as  are  deemed  prop- 
er, not  inconsistent  with  the  organic  act, 
to  maintain  the  parity  between  gold  and 
silver  pesos,  but  such  statute  is  witliin  the 
limits  of  the  police  power.  Ling  Su  Fan  v. 
United  States,  30:  1176,  31  Sup.  Ct.  Rep.  21, 
218  U.  S.  302,  54  L.  ed.   1049. 

As  to  highivays. 

Equal   protection   and   privileges   as  to,   sec 

supra,   157-162,  253-255. 
Police  power  as  to,  see  infra,  647-049. 
Uniformity   and  equality  as  to   license,  see 

License,  107-110. 
See  also  supra,  161. 

522.  No  property  right  of  an  abutting 
owner  doing  business  on  a  park  way  is 
unconstitutionally  interfered  with  by  for- 
bidding him  to  use  such  park  way  with 
loaded  wagons  further  than  the  nearest  in- 
tersecting cross  street,  although  he  is  there- 
by compelled  to  take  a  circuitous  route  to 
transact  his  business,  and  the  bad  condition 
of  the  cross  street  prevents  the  hauling  of 
full  loads  upon  it.  Illinois  Malleable  Iron 
Co.  V.  Commissioners  of  Lincoln  Park,  51: 
1203,  105  N.  E.  336,  263  111.  446. 

(Annotated) 
Use  of  flag. 
Equal   protection   and  privileges  as  to,   see 

supra,  251,  252. 
Police  power  as  to,  see  infra,   675. 
See  also  Flag. 
Diceat  1-52  L.IUA.(ir.S.) 


523.  The  personal  liberty  of  the  citizen, 
guaranteed  by  the  Federal  and  state  Con- 
stitutions, is  not  infringed  by  the  enact- 
ment of  a  statute  by  the  state,  in  the  exercise 
of  its  police  power,  forbidding  the  use  of  the 
flag  of  the  United  States  for  advertising 
purposes.  Halter  v.  State,  7:  1079,  105  N. 
W.  298,  74  Neb.  757. 

524.  The  prohibition  of  a  state  statute 
against  the  use  of  the  United  States  flag  for 
advertising  purposes  does  not  deprive  any 
person  of  his  property  without  due  process 
of  law,  in  violation  of  the  14th  Amendment 
to  the  Federal  Constitution.  Halter  v. 
State,  7:  1079,  105  N.  W.  298,  74  Neb.  757. 

( Annotated ) 
Animals;  fish;  game. 
Equal   protection   and   privileges  as  to,  see 

supra,  287,  288. 
Police  power  as  to,  see  infra,  653-658. 

525.  A  municipal  ordinance  which  in  ef- 
fect declares  that  carcasses  of  all  dead  ani- 
mals found  within  the  city,  which  were  not 
slain  for  food,  shall  at  once  become  the 
property  of  a  public  contractor  whose  name 
is  contained  in  the  ordinance,  with  the  right 
in  him  to  remove  the  same,  without  giving 
the  owner  a  reasonable  time  within  whicli 
to  dispose  of  the  dead  animal,  is  a  taking 
of  private  property  without  due  process  of 
law  and  therefore  void.  Whelan  v.  Daniels, 
48:"  979,  143  N.  W.  929,  94  Neb.  642. 

(Annotated) 

526.  Permitting  the  summary  killing  of 
hogs  found  running  at  large  on  or  near  pub- 
lic levees  does  not  unconstitutionally  de- 
prive the  owner  of  his  property  where  pre- 
vention of  the  weakening  of  the  levees  by  the 
rooting  of  hogs  is  necessary  to  the  public 
safetv.  Ross  v.  Desha  Levee  Board,  21 :  699, 
103  S.  W.  380,  83  Ark.  176.         (Annotated) 

527.  The  constitutional  property  rights  of 
the  owner  of  a  private  oyster  bed  are  not  in- 
fringed by  a  statute  forbidding  the  taking 
therefrom  of  oysters  under  a  certain  size. 
Windsor  v.  State,  12:  869,  64  Atl.  288,  103 
Md.  611.  (Annotated) 

528.  Forbidding  possession  within  the 
state,  during  a  close  season,  of  game  birds 
taken  in  foreign  countries,  does  not  deprive 
one  of  his  property  without  due  process  of 
law.  People  ex  rel.  Hill  v.  Hesterberg, 
3:  163,  76  N.  E.  1032,  184  N.  Y.  126. 

(Annotated) 
intoxicating  liqnors. 
Police  power  as  to,  see  infra,  645,  646. 
As  to  sales  of  liquor,  see  supra,  508-512. 

529.  Forbidding  one,  under  penalty,  to 
carry  into  a  county  where  the  sale  of  in- 
toxicating liquor  is  prohibited,  more  than 
a  half  gallon  of  such  liquor  on  any  one  day, 
deprives  him  of  his  constitutional  property 
rights  in  case  he  has  no  intent  to  sell  it. 
State  v.  Williams,  17:  299,  61  S.  E.  61,  146 
N.  C.  618.  (Annotated) 
Transfer  of  property;  sale  in  bulk. 
As    to    regulation    of    sales    generally,    see 

supra,  II.  b,  4,  d. 
Equal   protection   and   privileges  as  to,   see 

supra,  249,  250. 
Police  power  as  to,  see  infra,  747,  748. 

530.  No  unconstitutional  interference  with 
property  rights  is  affected  by  requiring  re- 


574 


CONSTITUTIONAL  LAW,  II.  b,  6, 


tail  merchants  to  file  notice  of  intention  to 
sell  the  whole  or  a  large  part  of  their  stocks, 
seven  days  before  the  sale,  under  penalty  of 
the  sale  being  voidable  at  the  instance  ot 
creditors.  Young  v.  Lemieux,  20:  160,  65 
Atl.  436,  79  Conn.  434.  (Annotated) 

531.  A  statute  requiring,  under  penalty  of 
having  the  sale  presumed  fraudulent  as  to 
the  creditors,  one  about  to  sell  a  stock  of 
merchandise  in  gross  or  in  a  manner  out  of 
the  due  course  of  business  to  make  an  in- 
ventory and  list  of  his  creditors  and  notify 
them  of  the  proposed  sale,  which  is  not  re- 
quired of  persons  selling  otlier  kinds  of  prop- 
erty under  similar  circumstances,  unconsti- 
tutionally deprives  him  of  liberty  and  prop- 
erty. Ofl"  V.  Morehead,  20:  167,  85  N,  E.  264, 
235  111.  40. 

6.  As  to  rights  in  office. 

(See   also   same   heading    in   Digest    L.R.A. 
1-10.) 

Equal  protection  as  to,  see  supra,  169-175. 

531a.  The  right  to  an  office,  though  not  a 
vested  property  right,  is  a  property  right 
in  a  certain  sense,  so  that  an  officer  entitled 
to  hold  an  office  for  a  3xed  terra  subject 
to  removal  only  for  cause,  is,  by  common- 
law  rules  unless  the  same  shall  have  'been 
abrogated  by  statute,  entitled  to  protection 
against  danger  of  unjust  removal,  being  so 
entitled  by  due  process  of  law  which  ex- 
cludes interference  with  personal  or  prop- 
erty rights  except  according  to  established 
principles  of  justice.  Ekern  v.  McGovern, 
46:  796,  142  N.  W.  595,  154  Wis.  157. 
Removal  from  office. 
See  also  infra,  589,  590. 

532.  A  judgment  of  ouster  in  a  quo  war- 
ranto proceeding,  whereby  the  right  to  hold 
an  office  for  the  remainder  of  the  term  is 
taken  away  from  the  ousted  official,  does 
not  deprive  him,  without  due  process  of 
law,  of  any  right  to  which  he  is  lawfully 
entitled.  State  v.  Rose,  6:  843,  86  Pac.  296, 
74  Kan.  262. 

533.  There  is  no  abrogation  of  the  com- 
mon-law rule  requiring  the  governor  to  pro- 
ceed by  due  process  to  remove  an  officer  ap- 
pointed by  him,  in  section  970  of  the  1911 
Wisconsin  statutes,  providing  that  such  of- 
ficers may  "for  official  misconduct,  habitual 
or  wilful  neglect  of  duty  be  removed  by  the 
governor  upon  satisfactory  proof  at  any 
time  during  the  recess  of  the  legislature." 
Ekern  v.  McGovern,  46:  796,  142  N.  W.  595, 
154  Wis.  157. 

7.  Remedies  and  procedure. 

a.  In  general. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

Equal   protection  and  privileges  as  to,  see 

supra,  II.  a,  7. 
Guaranty   that   right   and   justice   shall   be 

administered     without     prejudice,     see 

Judges,  8,  9,  24. 
Digest  1-52  I<.B.A.(N.S.) 


Infringement    of    right    to    jury    trial,    se« 

JUKY,  I.  d. 
See  also  supra,  382. 

534.  An  erroneous  decision  of  a  court 
which  has  jurisdiction  of  the  parties  and 
the  subject-matter  is  not  a  denial  of  due 
process  of  law.  Griggs  v.  Hanson,  52:  1161, 
121  Pac.  1094,  86  Kan.  632. 

535.  To  penalize  resistance  by  judicial  in- 
terference made  in  good  faith  to  prevent 
the  enforcement  of  a  law  is  unreasonable 
and  indefensible  from  any  point  of  view, 
since  it  denies  the  equal  protection  of  the 
laws,  violates  the  constitutional  guaranty 
to  every  person  of  a  certain  remedy  in  the 
law  for  all  injuries  to  person  and  property, 
and  violates  every  principle  of  civil  liberty. 
Bonnett  v.  Vallier,  17:  486,  116  N.  W.  885, 
136  Wis.  193. 

536.  A  statute  permitting  the  owner  of 
sheep  killed  by  dogs  to  recover  their  value 
from  the  owner  of  the  dogs,  and  requiring 
the  dogs  to  be  killed,  does  not  deprive  the 
owner  of  the  dogs  of  his  property  without 
due  process  of  law.  Holmes  v.  Murray,  17: 
431,  105  S.  W.  1085,  207  Mo.  413. 

537.  No  unconstitutional  interference  with 
liberty,  grant  .  of  special  privileges,  or 
immunities,  or  deprivation  of  property 
without  due  process  of  law,  is  effected  by 
prohibiting  the  assignment  of  a  claim 
against  a  wage  earner  out  of  the  state,  to 
evade  his  constitutional  exemptions  from 
execution.  Markley  v.  Murphy,  47:  689,  102 
N.  E.  376,  180  Ind.  4. 

Service  of  process. 
See  also  supra,  204. 

538.  Under  the  due  process  of  law  clause 
of  the  Federal  Constitution,  a  personal 
judgment  cannot  be  rendered  against  a  non- 
resident joint  debtor  who  was  not  served 
with  process.  Blessing  v.  McLinden  (N. 
J.  Err.  &  App.)  35:  312,  79  Atl.  347,  81  N. 
J.  L.   379.  (Annotated) 

539.  A  state  cannot  authorize  a  personal 
judgment  against  one  of  its  citizens  upon 
a  personal  service  of  process,  made  with- 
out the  state,  under  Constitutions  guar- 
antving  due  process  of  law.  Raher  v.  Raher, 
35: '292,  129  N.  W.  494,   150  Iowa,  511. 

(Annotated) 

540.  A  provision  for  service  of  process  on 
a  domestic  corporation  by  delivering  it  to  an 
officer  of  the  corporation  while  he  is  in  an- 
other state  where  he  resides  does  not  de- 
prive the  corporation  of  due  process  of  law. 
Straub  v.  Lvman  Land  h  Invest.  Co.  46:941, 
138  N.  W.  957,  141  N.  W.  979,  30  S.  D.  310. 

541.  Service  by  publication  upon  a  do- 
mestic corporation  which  has  failed  to  pro- 
vide officers  or  agents  upon  whom  other 
service  may  be  had  constitutes  "due  process 
of  law."  Clearwater  Mercantile  Co.  v. 
Roberts,  J.  &  R.  Shoe  Co.  4:  117,  40  So.  436, 
51  Fla.  176.  •  (Annotated) 

542.  A  statute  permitting  service  of  proc- 
ess by  publication  on  domestic  corporations 
in  counties  where  the  cause  of  action  arises, 
but  in  which  the  corporation  has  no  repre- 
sentative, does  not  deprive  it  of  due  process 
of   law.     Ward   Lumber   Co.   v.   Henderson- 


CONSTITUTIONAL  LAW,  II.  b,  7. 


675 


White  Mfg.   Co.   17:  324,  59  S.   E.  476,   107 
Va.  626. 

543.  The  provision  of  Ark.  act  February 
26,  1901  (Kirbv's  Dig.  §  835),  which  author- 
izes a  personal  judgment  against  any  foreign 
corporation,  on  any  cause  of  action,  in  favor 
of  a  resident  or  citizen  of  that  state,  upon 
service  of  a  summons  upon  the  auditor  of 
state,  is  violative  of  the  14th  Amend- 
ment to  the  Federal  Constitution,  because  it 
authorizes  judgment  without  notice  to  the 
defendant  of  the  hearing  and  proposed  ad- 
judication in  his  case,  which  is  indispensable 
to  constitute  due  process  of  law.  Cella  Com- 
mission Co.  v.  Bohlinger,  8:  537,  147  Fed 
419,  78  C.  C.  A.  467.  (Annotated) 
As  to  appeaf. 

544.  Refusing  a  judicial  review  of  the  ac- 
tion of  the  board  of  supervisors  of  a  coun- 
ty in  including  land  in  a  drainage  district 
does  not  offend  the  constitutional  provision 
forbidding  deprivation  of  property  without 
due  process  of  law.  Ross  v.  Wright  County, 
i:  431,  104  N.  W.  506,  128  Iowa,  427. 

545.  A  statute  denying  an  appeal  in  pro- 
ceedings to  contest  a  local-option  election 
docs  not  unconstitutionally  deprive  contest- 
ants of  the  privileges  and  immunities  of 
citizens,  nor  of  property  without  due  proc- 
ess of  law,  nor  of  the  equal  protection  of 
the  laws.  Saylor  v.  Duel,  19:  377,  86  N.  E. 
119,  236  III.  429. 

546.  The  setting  aside  by  an  appellate 
court,  of  a  verdict  for  plaintiff,  and  di- 
recting judgment  for  defendant  for  failure 
of  evidence,  do  not  infringe  plaintiff's  consti- 
tutional rights  to  due  process  of  law  and 
trial  by  jury, — at  least  in  states  where, 
at  the  adoption  of  the  Constitution,  the 
practice  had  been  to  allow  successive  trials 
of  the  same  case  before  different  juries,  and 
the  interference  with  verdicts  by  the  court 
under  certain  circumstances,  so  that  the 
verdict  of  a  jury  possessed  no  element  of 
finality  if  appealed  from  or  reviewed.  Gunn 
v.  Union  R.  Co.  2:  362,  62  Atl.  118,  27  R.  1. 
320.  (Annotated) 

547.  One  is  not  deprived  of  due  process  of 
law  by  the  fact  that  no  appeal  is  provided 
from  an  order  committing  him  to  a  state 
hospital  in  case  he  is  acquitted  of  the 
charge  of  murder  on  the  ground  of  insanity. 
(Per  Rich,  J.)  People  ex  rel.  Peabody  v. 
Chanler,  25:  946,  89  N.  E.  1109,  196  N.  Y.  525. 
Removal  of  causes. 

548.  A  defendant  in  a  suit  under  the 
Federal  employers'  liability  act  is  not  de- 
nied due  process  of  law  or  the  equal  pro- 
tection of  the  laws  by  being  forbidden  to 
remove  the  cause  from  a  state  to  a  Federal 
court,  although  there  is  diversity  of  citizen- 
ship, which  is  a  cause  for  removal  in  other 
classes  of  cases.  Teel  v.  Chesapeake  &  0. 
R.  Co.  47:  21,  204  Fed.  918,  123  C.  C.  A.  240. 

(Annotated) 
Forbidding:   injunction. 

549.  The  legislature  cannot  prevent  the 
granting  of  an  injunction  against  the  in- 
timidation of  a  merchant's  emjiloyees  and 
customers  by  a  labor  union  for  the  purpose 
of  compelling  him  to  pay  the  imion's  scale 
of  prices  to  his  employees,  since  it  inter- 
Digest  1-52  Ii.R.A.(N.S.) 


feres  with  his  constitutional  right  to  ac- 
quire, possess,  enjoy,  and  protect  property. 
Goldberg,  B.  &  Co.  v.  Stablemen's  Union, 
Local  No.  8,760,  8:  460,  86  Pac.  806,  149  Cal 
429. 

Contempt   proceedings.. 
Striking    out    depositions    in    divorce    suit, 

see  Contempt,  107. 
Presumption  as  to  notice  and  hearing,  see 

EviDE>fCE,   508. 

550.  One  imprisoned  by  a  state  court  for 
contempt  in  disobeying  an  injunction  in  a 
civil  suit  is  not  denied  due  process  of  law 
because,  under  the  decisions  of  the  Supreme 
Court  of  the  United  States,  such  punish- 
ment is  not  proper  in  that  class  of  cases. 
Rothschild  &  Co.  v.  Steger  &  Sons  Piano 
Alfg.  Co.  42:  793,  99  N.  E.  920,  256  111.  196. 

551.  Wilful  failure  of  an  attorney  to  be 
present  in  court  on  the  calling  of  his  case 
which  he  has  had  adjourned,  and  wilful 
failure  to  return  promptly  when  thereafter 
excused  for  a  few  minutes  to  attend  to  a 
case  in  another  court,  is  a  criminal  con- 
tempt for  which  he  cannot  be  punished 
without  notice  and  reasonable  time  in  which 
to  make  his  defense,  under  a  statute  re- 
quiring such  notification  where  contempts 
are  not  committed  in  the  immediate  view 
and  presence  of  the  court;  and  the  fact  that 
the  attorney  is  present  when  he  is  adjudged 
guilty,  and  then  has  notice  of  what  is  going 
on,  does  not  satisfy  the  requirement  of  the 
statute.  Ex  parte  Clark,  15:  389,  106  S. 
W.  990,  208  Mo.  121.  (Annotated) 
Condemnation  proceedings. 

552.  Conferring  authority  upon  the  public 
service  commission  to  hear,  upon  notice,  an 
application  for  trie  exercise  of  the  right  of 
eminent  domain,  determine  the  facts  of 
necessity  and  due  compensation,  and  render 
judgment,  which,  subject  to  appeal,  shall  be 
final,  does  not  deprive  the  owner  of  his  prop- 
erty without  due  process  of  law.  George  v. 
Consolidated  Lighting  Co.  52:  850,  89  Atl. 
635,  87  Vt.  41 L  (Annotated) 

553.  A  statute  authorizing  a  corporation 
seeking  to  take  land  under  eminent  domain 
proceedings  to  enter  upon  the  land  in  case 
it  and  the  owner  cannot  agree,  upon  filing 
a  bond  with  the  court  and  the  court's  ap- 
proval thereof,  does  not  violate  due  process 
of  law  where  notice  of  the  filing  of  the 
bond  is  required  and  the  owner  given  an 
opportunity  to  file  exceptions  thereto  before 
approval,  and  provision  is  made  for  de- 
termining the  compensation  of  such  owner. 
Carnegie  Natural  Gas  Co.  v.  Swiger,  46: 
1073,  79  S.  E.  3,  72  W.  Va.  557. 
Revocation  of  license. 

554.  The  action  of  a  judicial  tribunal  ia 
not  necessary  to  the  revocation  of  the  li- 
cense of  an  architect.  Klafter  v.  State  Bd. 
of  Examiners,  46:  532,  102  N.  E.  193,  259 
111.  15. 

555.  Judicial  proceedings  are  not  neces- 
sary to  the  revocation  of  a  license  to  prac- 
tise medicine,  in  order  to  avoid  conflict  with 
the  constitutional  provision  against  depriv- 
ing one  of  property  without  due  process  of 
law.  State  Medical  Board  v.  McCrary,  30: 
783,  130  S.  W.  544,  95  Ark.  511. 


576 


CONSTITUTIONAL  LAW,  II.  b,  7. 


As  to  lien. 

As  to  lien  of  attorney,  see  supra,  457. 
Notice  and  hearing  as  to,    see    infra,    588, 

604. 
Impairing  obligation  of  contract  as  to,  see 

infra,  818. 
See  also  infra,  688. 

556.  A  statute  giving  the  keeper  of  a 
hotel  or  inn  a  lien  upon  baggage  and  other 
personal  property  brought  on  the  premises 
by  a  guest,  although  owned  by  a  third  per- 
son, unless  the  proprietor  of  the  hotel  or 
inn  is  aware  of  that  fact,  is  not  in  violation 
of  due  process  of  law,  since  the  statute  does 
not  extend  the  rule  beyond  the  rule  of  the 
common  law  prior  to  1775,  or  beyond  tiie 
requirements  of  public  policy.  Horace 
Waters  &  Co.  v.  Gerard,  24:  958,  82  N.  E. 
143,  189  N.  Y.  302.  (Annotated) 

557.  A  statute  giving  subcontractors  a 
lien  on  a  building,  notwithstanding  tlie 
right  to  a  lien  lias  been  waived  by  the 
principal  contractor,  is  unconstitutional, 
as  depriving  tlie  owner  of  liis  proi)erty 
without  due  process  of  law.  Kellv  v. 
Johnson,  36:  573,  95  N.  E.  1068,  251  111. 
135.  (Annotated) 
As  to  damages;  penalties. 

See  also  supra,  652,  553. 

558.  Denying  damages  to  a  property  own- 
er for  loss  of  tlie  use  of  fixtures  installed  to 
utilize  a  municipal  water  supply  which 
proves  to  be  inadequate  does  not  deprive 
him  of  his  property  without  due  process 
of  law  or  deny  him  the  equal  protection  of 
the  laws.  Stansbury  v.  Richmond,  51:984, 
81   S.  E.  26,  116  Va.  205. 

559.  An  award  to  the  owner  of  one  of 
many  parcels  of  land  taken  by  eminent  do- 
main for  a  site  for  a  reservoir  for  a  mu- 
nicipal water  supply  cannot  be  said  to  deny 
due  process  of  law,  where  made  without 
prejudice,  in  due  form,  and  after  full  hear- 
ing, because  the  commissioners  and  courts 
refuse  to  take  into  consideration  the  value 
of  the  land  as  part  of  a  natural  reservoir 
site.  McGovern  v.  New  York,  46:  391,  33 
Sup.  Ct.  Rep.  876,  229  U.  S.  363,  67  L.  ed. 
1228.  (Annotated) 

560.  A  ruling  that  the  measure  of  dam- 
ages, where  the  right  of  way  of  a  railroad 
company  is  taken  by  a  telegraph  company, 
is  the  value  of  the  land  actually  taken,  and 
the  extent  to  which  the  use  of  the  right  of 
way  by  the  railroad  company  is  diminished 
by  its  use  by  the  telegraph  company;  that 
the  right  of  way  of  a  railroad  company  has 
no  general  market  value  for  other  uses  than 
that  to  which  it  is  applied;  and  that  pe- 
culiar advantages  and  benefits  accruing  to 
a  telegraph  company  from  its  use  of  the 
railroad's  right  of  way  cannot  be  considered 
in  the  assessment  of  damages, — has  not  the 
effect  of  putting  the  eminent  domain  laws 
of  the  state  in  opposition  to  the  due-process 
clause  of  the  14th  Amendniient  of  tlie  Con- 
stitution of  the  United  States.  Western  & 
A.  R.  Co.  v.  Western  U.  Teleg.  Co.  43:  225, 
75  S.  E.  471,  138  Ga.  420. 

561.  A  statutory  allowance  for  the  wil- 
ful and  reckless  killing  of  a  person,  of  puni- 
tive damages  proportioned 'to  the  injury  re- 
Disest  1-52  I<.R.A.(N.S.) 


suiting  from  tlie  death  to  the  parties  re- 
spectively for  whom  and  for  whose  benefit 
the  action  is  brougiit,  is  not  an  unconstitu- 
tional interference  with  defendant's  proper- 
ty rights.  Hull  V.  Seaboard  Air  Line  R.  Co. 
10:  1213,  57  S.  E.  28,  76  S.  C.  278. 

562.  A  statute  authorizing  recovery 
against  telegraph  companies  tor  mental 
anguish  resulting  directly  or  proximately 
from  or  occasioned  by  the  failure  or  negli- 
gence of  their  operators,  servants,  or  em- 
ployees in  receiving,  copying,  transmitting, 
or  delivering  messages,  is  not  invalid  as 
depriving  them  of  property  without  due 
process  of  law.  Nitka  v.  Western  U.  Teleg. 
Co.  49:  337,  135  N.  W.  492,  149  Wis.  100. 

563.  A  statute  which  proWdes  a  penalty 
against  a  common  carrier  for  refusing  to 
put  on  sale  or  to  sell  tickets  of  a  connect- 
ing carrier  for  the  transportation  of  passen- 
gers over  the  connecting  line,  or  any  portion 
thereof,  at  the  rate  prescribed  by  the  rail- 
road commission  of  tlie  state,  does  not  vio- 
late the  provisions  of  a  state  Constitution 
that  no  person  shall  be  deprived  of  property 
except  by  due  process  of  law,  nor  the  provi- 
sions of  the  14th  Amendment  of  the  Federal 
Constitution  that  no  state  shall  deprive  any 
person  of  property  without  due  process  of 
law,  or  deny  to  any  person  the  equal  protec- 
tion of  the  laws.  Stephens  v.  Central  of  Ga. 
R.  Co.  42:  54I1  75  S.  E.  1041,  138  Ga.  625. 

( Annotated ) 

564.  Imposing  a  penalty  of  a  fine  of  not 
exceeding  $1,000,  or  iniprisonment  of  not  ex- 
ceeding one  year,  or  both,  for  violation  of 
a  statute  forbidding  the  exaction  of  more 
than  5  cent^  for  one  continuous  ride  on  a 
t-'reet  car  within  any  city  or  town,  is,  al- 
though no  minimum  is  prescribed,  so  exces- 
sive as  to  deny  railway  companies  due 
process  of  law.  State  v.  Crawford,  46: 
1039,  133  Pac.  590,  74  Wash.  248. 

565.  A  statute  prescribing  a  minimum 
rate  of  speed  at  which  live  stock  may  be 
transported  between  intrastate  points  is  not 
rendered  unconstitutional  as  depriving  the 
carrier  of  its  property  without  due  process 
of  law,  by  a  clause  thereof  providing  that 
the  shipper  may  recover  damages  in  a  fixed 
sum  for  violations  thereof,  although  such 
damages  may  amount  to  more  than  com- 
pensatory damages,  since  the  legislature 
has  power  to  liquidate  the  damages  in  such 
case.  Cram  v.  Chicago,  B.  &  Q.  R.  Co.  26: 
1022,  122  N.  W.  31,  84  Neb.  607,  123  N.  W. 
1045,  85  Neb.  586. 

566.  Exacting  double  liability  and  an  at- 
torneys' fee  under  the  authority  of  a  state 
statute,  from  a  railway  company  refusing 
to  pay  within  thirty  days  an  excessive  de- 
mand for  the  killing  of  live  stock  by  one 
of  its  trains,  takes  the  company's  property 
without  due  process  of  law.  St.  Louis,  I. 
M.  &  S.  R.  Co.  v.  Wynne,  42:  102,  32  Sup. 
Ct.  Rep.  493,  224  U.  S.  354,  56  L.  ed.  799. 

(Annotated) 

567.  A  statute  imposing  on  railroads 
alone  an  additional  charge  for  goods  lost 
in  transit  in  case  of  failure  to  pay  any 
claim  within  a  certarin  time  is  inoperative, 
as  it  provides  for  an  unreasonable  class^fl- 


CONSTITUTIONAL  LAW,  II.  b,.  7. 


577 


cation  that  in  effect  denies  to  those  operat- 
ing railroads  the  constitutional  guaranty  of 
due  process  of  law  and  the  equal  protection 
of  tiie  law;  since,  as  the  duty  of  a  common 
carrier  to  pay  for  goods  lost  in  transit  is 
one  that  applies  to  all  common  carriers 
alike,  there  is  no  just  basis  for  the  classifica- 
tion. Seaboard  A.  L.  R.  Co.  v.  Simon,  20: 
126,  47  So.  3  001,  56  Fla.  545.  (Annotated) 
As  to  insane  person. 
Validity  of  rules  of  evidence,  see  infra,  624. 
Notice  and   hearing   as  to,   see   infra,   597- 

603. 
Police  power  as  to,  see  infra,  750. 
See  also  supra,  547. 

568.  Sentence  to  imprisonment  according 
to  the  provisions  of  a  statute  that,  when 
oie  is  acquitted  of  the  charge  of  murder 
on  the  ground  of  insanity,  anu  that  fact  is 
stated  by  the  jurj',  he  may  be  sentenced 
to  imprisonment,  does  not  deprive  him  of 
his  liberty  without  due  process  of  law,  nor 
of  the  benefit  of  the  constitutional  rights, 
to  appear  and  defend  in  person  or  by  coun- 
sel, and  to  trial  by  jury,  where  he  has  had 
a  fair  trial  upon  the  issue  of  insanity,  ten- 
dered by  him  in  support  of  his  plea  of  not 
guilty,  and  he  has  produced  no  evidence  of 
a  return  of  a  lucid  interval.  Ex  parte 
Brown,  i :  540,  81  Pac.  552,  39  Wash.  160. 

(Annotated) 

569.  A  statute'  providing  that  when  a 
person  is  acquitted  of  a  criminal  charge  on 
the  ground  of  insanity  when  the  offense  was 
committed,  the  jury  shall  so  state  in  their 
verdict  and  shall  pass  specifically  on  the 
question  of  sanity,  and  thereupon  such 
person  shall  be  committed  to  asylum  for  the 
dangerous  insane,  and  shall  not  be  liberated 
except  upon  an  order  of  the  court  commit- 
ting him  thereto,  and  until  the  superintend- 
ent of  such  asylum  shall  certify  in  writing 
to  such  committing  court  that  in  his  opin- 
ion such  person  is  wholly  recovered,  and 
that  no  person  will  be  in  danger  by  his  dis- 
charge, is  not  unconstitutional  as  being  a 
denial  of  due  process  of  law  within  the  pro- 
visions of  the  Federal  or  state  Constitution 
relating  thereto.  Re  Clark,  39:  680,  121 
Pac.  492,  86  Kan.  539. 

Escheat. 

570.  The  legislature  cannot  declare  the 
land  of  a  corporation  forfeited,  because  held 
too  long,  and  vest  the  title  ipso  facto  in  the 
state,  without  giving  the  corporation  a 
chance  to  resist  the  escheat.  Louisville 
School  Board  v.  King,  15:  379,  107  S.  W. 
247,  127  Ky.  824. 

Criminal  matters. 

As  to  appeal,  see  supra,  547. 

Confinement  of  insane  person   on  acquittal 

of  crime,  see  supra,  568,  569. 
Police  power  as  to,  see  infra,  750. 
As  to  arrest  without  warrant,  see  Aeeest, 

I.  d. 
Matters  as  to  procedure  on  criminal  trial 

generally,  see  Criminal  Law,  II. 
Right    to    public  trial,  see  Cbiminal  Law, 

83-86. 
Right  to  speedy  trial,  see    Criminal    Law, 

87-94. 


Digest  1-52  KR.A.(N.S.) 


37 


Right  to  meet  witnesses,  see  Criminal 
Laav,  95-103. 

As  to  self-crimjnation,  see  Criminal  Law, 
107-121,  131;  Witnesses,  II.  c. 

Right  of  accused  to  be  present,  see  Crimi- 
nal Law,  125-130. 

Necessity  of  indictment  or  information,  see 
Criminal  Law,  II,  d. 

Former  jeopardy,  see  Criminal  Law,  II.  g. 

Guaranty  of  trial  without  prejudice,  see 
Judges,  8,  9. 

See  also  supra,  36,  568. 

571.  A  proceeding  before  the  district  court 
or  a  judge  thereof,  upon  the  written  appli- 
cation of  the  county  attorney,  or  attorney 
general,  under  Kan.  Laws  1897,  chap.  265, 
§  10b,  Kan.  Gen.  Stat.  1901,  §  7873,  to 
subpcena  witnesses  to  testify  of  their 
knowledge  of  violations  of  provisions  of  the 
anti-trust  law,  is  of  the  nature  of  an  in- 
vestigation or  preliminary  proceeding,  and 
is  a  valid  exercise  of  judicial  power;  the 
procedure  being  due  process  of  law  within 
the  meaning  of  the  14th  Amendment  to  the 
United  States  Constitution.  State  v.  Jack, 
1:167,  76  Pac.  911,  69  Kan.  387. 

572.  The  arrest,  detention,  and  imprison- 
ment of  persons  by  the  governor  of  the 
state  during  a  time  of  insurrection,  under 
a  statute  conferring  such  power  upon  him, 
do  not  violate  the  due  process  of  law  clauses 
of  §  10,  article  3,  of  the  West  Virginia 
Constitution,  nor  the  14th  Amendment  of 
the  Federal  Constitution.  Ex  parte  Jones, 
45:  1030,  77  S.  E.  1029,  71  W.  Va.  567. 

573.  An  executive  order'  revoking  a  con- 
ditional parole  for  violation  thereof,  and 
directing  the  rearrest  and  return  to  custody 
of  the  convict,  is  not  violative  of  the  con- 
stitutional guaranty  "that  no  person  shall 
be  deprived  of  his  liberty  without  due  proc- 
ess of  law,"  and  "that  no  warrant  sliall 
issue  but  upon  probable  cause,  supported  by 
oath  or  affirmation,"  since,  being  a  convict 
at  large  by  executive  clemency,  which  he 
has  accepted  on  conditions  included  there- 
in, the  convict,  upon  violation  of  such  condi- 
tions, is  merely  an  escaped  convict,  and  not 
entitled  to  invoke  such  constitutional  guar- 
anty. Re  Ridley,  26:  no,  106  Pac.  549,  3 
Okla.   Crim.  Rep.  350. 

b.  As  to  rigJit  of  action  or  defense. 

(1)    Of  action. 

(a)   In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Against  employer. 

574.  An  employee  is  not  deprived  of  his 
recourse  to  the  courts  by  an  employees'  in- 
surance act  which  provides  that  an  em- 
ployer of  five  or  more  workmen  who  pays  a 
certain  premium  into  the  state  insurance 
fund,  and  posts  certain  notices  to  this  efl'ect 
in  his  place  of  business,  shall  be  relieved  of 
liability  to  respond  in  damages  to  an  em- 
ployee for  injury,  except  in  case  of  wilful 
or  statutory  negligence,  and  which  provides 
further  for  a  board  of  awards  to  hear  and 
determine  questions  concerning  the  payment 


578 


CONSTIITTIONAL  LAW,  II.  b,  7. 


of  claims,  and  for  an  appeal  from  their  de- 
termination in  cases  wliere  the  right  of  the 
claimant  is  denied  upon  any  ground  affect- 
ing the  basis  of  the  claim.  State  ex  rel. 
Yaple  V.  Creamer,  39:  694,  97  N.  E.  602,  85 
Ohio  St.  349. 

(h)     Against    railroad    companies     or 
carriers. 

(See   also   same  heading   in  Digest  L.R.A. 
1-70.) 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  II.  a,  3,  b. 

For  fires. 

575.  A  statute  imposing  an  absolute 
double  liability  upon  a  railroad  company 
which  sets  out  fire  along  its  right  of  way 
by  the  operation  of  its  trains  does  not  de- 
prive it  of  its  property  without  due  process 
of  law,  or  deprive  it  of  the  equal  protection 
of  the  laws.  Jensen  v.  South  Dakota  C 
R.  Co.  35:  1015,  127  N.  W.  650,  25  S.  D.  506. 

(Annotated) 

576.  A  statute  allowing  a  railroad  com- 
pany which  is  subject  to  double  damages 
for  setting  out  fire  or  killing  stock,  to  ten- 
der a  fixed  sum  as  compensation,  and  pro- 
viding that,  in  case  the  property  owner  re- 
fuses to  accept  the  tender  and  recovers  a 
less  sum  by  suit  than  that  tendered,  the 
company  shall  be  liable  only  for  actual 
damages,  and  shall  recover  its  costs,  does 
not  unconstitutionally  deprive  the  company 
of  its  property  or  the  equal  protection  of 
the  laws,  because  it  allows  double  damages 
in  case  the  recovery  equals  the  amount  ten- 
dered. Jensen  v.  South  Dakota  C.  R.  Co. 
35:  1015,  127  N.  W.  650,  25  S.  D.  506. 
For  injury  to  stock. 

See  also  supra,  576. 

577.  A  statute  imposing  an  absolute 
double  liability  upon  a  railroad  company 
for  killing  stock  on  its  right  of  way,  where 
it  fails  to  fence  its  track,  does  not  deprive 
it  of  its  property  without  due  process  of 
law,  or  deprive  it  of  the  equal  protection 
of  the  laws.  Jensen  v.  South  Dakota  C. 
R.  Co.  35:  1015,  127  N.  W.  650,  25  S.  D.  506. 

(Annotated) 

(2)    Of  defense. 

(See   also   same   heading   in  Digest  L.R.A. 
1-tO.) 

Vested  right  in  defense  of  limitation,   see 

supra,  65. 
As  to  right  to  notice  and  hearing,  see  infra, 

II.  b,  7,  c. 

578.  The  striking  of  so  much  of  the  de- 
fense in  an  action  for  divorce  and  alimony 
as  states  a  defense  to  the  application  for 
divorce,  for  failure  to  obey  an  order  for  the 
payment  of  temporary  alimony,  and  the 
refusal  to  permit  defendant  to  defend  ex- 
cept as  to  the  amount  of  alimony,  violates 
his  constitutional  right  to  due  process  of 
law,  especially  where  he  shows  by  affidavit 
Digest  1-52  I..R.A.(N.S.) 


that  he  was  unable  to  comply  with  the 
order  for  temporary  alimony.  McNamara 
V.  McNamara,  27:  1062,  126  N.  W.  94,  86 
Neb.   631.  (Annotated) 

579.  An  attorney  cannot  constitutionally 
be  compelled  to  pay  into  court  money  al- 
leged to  have  been  collected  for  l<is  client, 
and  not  paid  over,  as  a  condition  to  the 
right  to  defend  on  the  merits  a  summary 
proceeding  to  compel  its  payment,  since  he 
would  thereby  be  deprived  of  due  process  of 
law.  White  v.  Ward,  18:  568,  47  So.  166, 
157  Ala.  345. 

580.  A  statute  which  permits  one  apply- 
ing for  the  registration  of  a  land  title  to 
dismiss  the  application  at  any  time  before 
final  decree  is  entered,  upon  such  terms  as 
may  be  fixed  by  the  court,  cannot  be  held 
to  violate  Minn.  Const,  art.  1,  §  8,  declar- 
ing that  there  shall  be  a  remedy  for  every 
wrong,  on  the  ground  that  it  precludes  a 
final  adjudication  of  the  defendant's  claim 
of  title  by  adverse  possession.  Peters  v. 
Duluth,  41:  1044,  137  N.  W.  390,  119  Minn. 
96. 

581.  An  attempt  to  deprive  one  accused  of 
crime  of  the  defense  of  insanity  is  inef- 
fectual under  constitutional  provisions 
guarantying  due  process  of  law  and  trial 
by  jury.  State  v.  Strasburg,  32:  1216,  110 
Pac,  1020,  60  Wash.  106.. 

c.  Notice  and  hearing. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Ag  to  mode  of  serving  process,  see  supra, 
538-543. 

Right  of  applicant  for  liquor  license  to  hear- 
ing on  question  of  fitness,  see  Intoxi- 
cating Liquors,  72. 

Right  to  notice  and  hearing  before  being 
assigned  to  colored  school,  see  Stat- 
utes, 30.  « 

Construction  of  statute  so  as  to  give  op- 
portunity for  hearing,  see  Statutes, 
227. 

See  also  supra,  551. 

582.  A  defendant  who  has  taken  an  ap- 
peal from  a  judgment  against  him,  to  an 
appellate  court,  having  jurisdiction  of  the 
parties  and  the  subject-matter,  and  against 
whom  a  default  judgment  is  rendered  by 
such  appellate  court,  is  not  denied  due  pro- 
cess of  law,  although  at  the  time  of  the 
rendering  of  such  judgment  he  was  detainc^d 
in  custody,  and  no  special  notice  was  given 
him  that  the  matter  would  be  taken  up  on 
that  day,  and  a  motion  to  strike  out  the 
verification  of  the  account  sued  upon  was 
pending.  Griggs  v.  Hanson,  52:  1161,  121 
Pac.  1094,  86  Kan.  632.  (Annotated) 

583.  Permitting  an  administrative  board 
which  acts  only  by  consent  of  the  parties 
interested,  to  take  testimony  without  notice 
to  either  party,  and  to  give  notices  by  mail, 
does  not  deprive  the  parties  of  due  process 
of  law.  Borgnis  v.  Falk  Co.  37:  489,  133 
N.  W.  209,  147  Wis.  327. 

584.  That  the   act   of   public   authorities 


CONSTITUTIONAL  LAW,  11.  b,  7. 


570 


in  forbidding  the  casting  of  sawdust  from 
a  particular  mill  into  a  particular  stream 
is  not  a  general  regulation  does  not  make  it 
a  judicial  act,  wliicli  will  entitle  the  mill 
owner  to  a  hearing.  Com.  v.  Sisson,  i:  752, 
75  N.  E.  619,  189  Mass.  247. 

585.  That  a  proceeding  for  the  re-estab- 
lishment of  lost  record  titles  to  real  estate 
may  be  invoked  where  there  is  no  known 
adverse  claim,  so  that  it  is  substantially  an 
ex  parte  application,  does  not  destroy  its 
judicial  nature  so  that  jurisdiction  cannot 
be  conferred  upon  the  courts,  or  so  as  to  de- 
prive it  of  the  character  of  due  process  of 
law.  Title  &  Document  Restoration  Co.  v. 
Kerrigan,  8:  682,  88  Pac.  356,  150  Cal.  289. 

586.  A  railroad  company  is  not  entitled  to 
a  hearing  upon  the  question  of  the  passage 
of  an  ordinance  requiring  it  to  light  its 
street  crossings.  Pittsburg,  C.  C.  &  St.  L. 
l\.  Co.  V.  Hartford  City,  20:  461,  82  N.  E. 
787,  170  Ind.  674. 

587.  A  statute  providing  for  the  destruc- 
tion of  noxious  weeds  upon  land  of  a  non- 
resident at  his  expense,  after  merely  posting 
notice  requiring  their  destruction  on  the 
property,  does  not  deprive  him  of  his  prop- 
erty without  due  process  of  law,  if  notice  of 
the  expense  must  be  mailed  to  him,  and 
\vhere,  if  the  claim  is  not  paid  within  thirty 
days,  it  will  be  presented  to  the  county  com- 
missioners, before  whom  he  can  contest  its 
validity  before  the  cost  is  assessed  against 
him.  Wedemeyer  v.  Crouch,  43:  1090,  122 
Pac.  366,  68  Wash.  14.  (Annotated) 

588.  A  statute  which  imposes  the  cost  in- 
curred by  an  entomological  commission  in 
inspecting  and  treating  trees,  shrubs,  and 
plants  for  insects  and  plant  diseases  upon 
the  owner  of  the  property  whose  premises 
are  inspected,  and  gives  him  twenty  days 
within  which  to  pay  such  cost,  and,  in  the 
event  of  his  failure,  making  it  a  lien  upon 
the  property,  is  not  invalid  on  the  ground 
that  it  authorizes  the  cost  of  the  proceed- 
ing to  be  taxed  against  his  property  with- 
out notice  to  him  or  opportunity  to  ques- 
tion the  amount  thereof.  Balcli  v.  Glenn, 
43:  1080,  119  Pac.  67,  85  Kan.  735. 
Hemoval  from  office. 

See  also  Officers,  69,  70. 

589.  There  is  no  property  right  in  a 
public  office,  so  as  to  require  notice  and  a 
hearing  before  a  removal  therefrom,  under 
a  constitutional  provision  that  no  one  shall 
be  deprived  of  property  without  due  process 
of  law.  State  ex  rel.  Hamilton  v.  Grant, 
1:  588,  81  Pac.  795,  14  Wyo.  41. 

590.  An  order  of  the  governor  removing 
from  office  an  important  officer,  under  a 
statute  giving  the  governor  power  to  remove 
only  "upon  satisfactory  proof,"  does  not  .af- 
ford due  process  where  there  was  less  than 
an  hour's  notice  of  the  hearing  and  the  gov- 
ernor acted  in  part  upon  personal  informa- 
tion which  the  officer  had  no  opportunity  to 
meet,  and  where  the  officer  was  given  no  op- 
portunity to  present  the  evidence  of  his 
witnesses  or  testify  fully  himself,  or  be 
heard  by  counsel.  Ekern  v.  McGovern,  46: 
796,  142  N.  W.  595,  154  Wis.  167. 
Digest  1-52  I..B.A.(N.S.) 


Administration  of  estates. 

591.  The  legislature  may  within  reason- 
able bounds,  where  probate  proceedings  are 
in  rem  determine  what  shall  constitute 
sufficient  notice  of  the  commencement  of 
proceedings  for  the  settlement  of  an  estate, 
to  give  the  court  jurisdiction  and  to  ap- 
prise those  interested  in  the  estate  that  the 
court  will  administer  and  ultimately  dis- 
tribute the  property  among  the  persons 
interested,  without  infringing  the  constitu- 
tional requirements  of  due  process  of  law. 
Barrette  v.  Whitney,  37:  368,  106  Pac.  522, 
36  Utah,  574. 

592.  A  statute  pertaining  to  the  grant  of 
administration  upon  the  estates  of  deceased 
persons,  which  provides  for  no  notice  or  ci- 
tation to  heirs  and  creditors,  but  which 
contains  reasonable  provisions  for  the  pro- 
tection and  distribution  of  such  estates,  is 
not  void  as  failing  to  provide  for  due  proc- 
ess of  law.  Alabama,  G.  S.  R.  Co.  v.  Hill, 
43:  236,  76  S.  E.  1001,  139  Ga.  224. 

593.  A  statute  providing  for  the  taking  of 
an  absentee's  property  and  administering 
it  when  he  is  alive,  without  his  knowledge 
or  consent,  and  in  a  proceeding  to  which  he 
is  not  a  party,  and  of  which  he  has  no 
notice,  is  void  as  depriving  him  of  his  prop- 
erty without  due  process,  of  law.  Grandy 
v.  Kennedy,  4:944,  52  S.  E.  635,  104  Va. 
826.  (Annotated) 
In   eminent  domain. 

594.  Failure  of  public  authorities  to  es- 
tablish, in  a  proceeding  to  condemn  proper- 
ty for  public  use,  the  necessity  of  the  taking 
as  a  basis  for  assessment  of  damages,  or  to 
accord  the  owner  a  hearing  on  that  ques- 
tion unless  he  raises  it  on  his  own  initia- 
tive, does  not  deprive  him  of  his  property 
without  due  process  of  law.  Board  of 
Water  Comrs.  v.  Johnson,  41:  1024,  84  Atl. 
727,  86  Conn.   151. 

595.  A  statute  providing  for  condemna- 
tion of  a  right  of  way  for  an  irrigation  ditch 
must  provide  for  notice  to  the  person  whose 
land  is  to  be  taken  of  the  hearing  for  fixing 
the  damages,  and  it  is  not  sufficient  that 
notice  is  provided  of  the  time  for  appoint- 
ment of  the  appraisers.  Sterritt  v.  Young, 
4:  169,   82   Pac.   946,    14  Wyo.    146. 

(Annotated) 

596.  Failure  of  a  statute  authorizing  a 
municipal  corporation  to  close  streets  and 
alleys,  to  provide  for  the  submission  to  the 
court  of  the  question  whether  or  not  such 
closing  is  for  a  public  purpose,  will  not  ren- 
der the  statute  unconstitutional  as  a  taking 
of  private  property  without  due  process  of 
law,  since  the  court  will  assume  that  there 
was  no  intention  to  deprive  it  of  control  of 
the  matter.  Henderson  v.  Lexington,  22: 
20,  111  S.  W.  318,  132  Ky.  390. 

(Annotated) 
As  to  insane  persons. 
See  also  supra,  568,  569. 

597.  One  cannot  be  permanently  confined 
in  a  hospital  for  the  insane  without  suf- 
ficient notice  of  the  proceedings,  and  an  op- 
portunity to  defend.  Ee  Allen,  26:  232,  73 
Atl.  1078,  82  Vt.  365.  (Annotated). 


S80 


CONSTITUTIONAL  LAW,  II.   b,  7. 


598.  An  order  of  a  court  of  probate  for 
tlie  removal  of  an  alleged  insane  person  to 
a  hospital  for  the  insane  is  void  where  no 
notice  is  given  to  him  of  the  hearing,  and 
no  finding  is  made  as  to  certain  facts  on 
the  existence  of  which  the  statute  makes 
the  removal  depend.  Ke  Allen,  26:  232,  73 
Atl,  1078,  82  Vt.  365. 

599.  Commitment  of  one  to  an  insane  hos- 
pital on  the  certificates  of  physicians  not 
Appointed  by  the  court,  without  any  inde- 
pendent investigation  by  the  court,  or  giv- 
ing the  alleged  insane  person  an  opportunity 
to  defend,  is  invalid.  Re  Allen,  26:  232,  73 
Atl.    1078,   82   Vt.   365. 

600.  A  statutory  provision  for  a  court  of 
inquiry  to  determine  whether  or  not  one 
committed  to  a  hospital  for  the  insane  on 
the  certificate  of  physicians  is  a  public 
charge  will  be  construed  as  requiring  notice 
to  him,  although  it  does  not  expressly  so 
provide,  and  therefore  the  statute  cannot  be 
held  invalid  as  authorizing  a  commitment 
on  the  certificate  of  physicians  without  a 
hearing.  Re  Allen,  26:  232,  73  Atl.  1078, 
82  Vt.  365. 

601.  A  statute  providing  that  all  per- 
sons confined  as  insane  shall  be  entitled  to 
the  benefit  of  the  writ  of  habeas  corpus, 
upon  the  hearing  of  which  the  question  of 
insanity  shall  be  decided,  and  if  the  judge 
or  court  shall  decide  that  the  person  is  in- 
sane, such  decision  shall  be  no  bar  to  the 
issuing  of  the  writ  the  second  time  when- 
ever it  shall  be  alleged  that  such  person 
has  been  restored  to  reason,  is  not  violative 
*f  the  due  process  clause  of  the  state  or 
Federal  Constitutions,  although  the  statute 
idoes  not  require  notice  preliminary  to  a 
■commitment  to  the  asylum.    Ex  parte  Dang- 

iley,  44:  389,  128  Pac.  699,  35  Okla.  180. 

'  602.  The  right  of  one  committed  to  a  hos- 
pital for  the  insane,  upon  being  acquitted 
of  the  charge  of  murder  on  the  ground  of 
insanity,  to  apply  for  a  writ  of  habeas 
corpus  to  establish  his  sanity,  and  conse- 
quent right  to  instant  discharge,  satisfies 
his  constitutional  right  to  a  hearing,  so  as 
to  preserve  the  constitutionality  of  the 
statute  authorizing  his  commitment.  People 
ex  rel.  Peabody  v.  Chanler,  25:  946,  89  N.  E. 
1109.  196  N.  Y.  525. 

603.  A  statute  providing  that  one  acquit- 
ted of  murder  on  the  ground  of  insanity 
may  be  committed  to  the  state  lunatic  asy- 
lum until  he  becomes  sane,  if  the  court 
deems  his  discharge  dangerous  to  the  public 
peace  and  safety,  is  not  unconstitutional  on 
the  theory  that  it  does  not  provide  for 
notice  and  a  hearing,  since  a  defendant  who 
pleads  insanity  and  seeks  to  establish  it  at 
the  trial  has  notice,  in  view  of  the  statute 
authorizing  such  commitment,  that  the  evi- 
dence may  reveal  a  condition  of  insanity 
which  will  require  it  in  his  case.  People 
«x  rel.  Peabody  v.  Chanler,  25:  946,  89  N.  E. 
1109,  196  N.  Y.  525.  (Annotated) 
As   to   liens. 

See  also  supra,  556,  557.  588;  infra,  611. 

604.  A  statute  making  a  drainage  assess- 
ment take  priority  over  existing  mortgages, 
without  notice  vo  the  mortgagees  out  of  pos- 
Sigest  1-52  KR.A.(N.S.) 


session,  does  not  deprive  them  of  their  prop- 
erty without  due  process  of  law.  Baldwin 
v.  Moroney,  30:  761,  91  N.  E.  3,  173  Ind. 
574.  (Annotated) 

Assessments  for  public  improvements. 
See  also  supra,  411-415,  604. 

605.  The  hearing  required  by  the  con- 
stitutional provision  for  due  process  of 
law  is  not  afforded  by  a  municipality  to 
which  is  delegated  power  to  assess  the  cost 
of  public  improvements  on  property  benefit- 
ed thereby,  where  the  body  charged  with 
the  duty  of  conducting  the  hearing  receives 
written  protests  and  hears  oral  arguments, 
but  refuses  to  take  testimony,  on  the  theory 
that  it  has  no  power  to  afford  relief.  Den- 
ver V.  State  Invest,  Co.  33:  395,  112  Pac. 
789,  49  Colo.  244. 

606.  Failure  to  provide  for  notice  to  the 
mortgagee  of  the  amount  of  a  special  as- 
sessment on  the  mortgaged  property,  and 
the  time  for  hearing  objections  thereto,  does 
not  render  the  statute  invalid  as  to  him, 
as  depriving  him  of  property  without  due 
process  of  law,  although  enforcement  of  the 
assessment  may  impair  his  lien.  Fitch- 
patrick  v.  Botheras,  37:  558,  130  N.  W. 
163,  1.50  Iowa,  376.  ^ 
Garnishment. 

607.  The  provision  of  Ga.  act  August  I3, 
1904,  that  the  situs  of  a  debt  due  to  a  non- 
resident shall  be,  for  the  purpose  of  attach- 
ment, at  the  residence  of  the  garnishee  with- 
in the  state,  does  not  deprive  the  debtor  of 
his  property  without  due  process  of  law, 
where  the  debt  sought  to  be  reached  consists 
of  wages  earned  by  a  nonresident  locomotive 
engineer  without  the  state  and  in  the  state 
of .  his  residence  while  in  the  employ  of  a 
railway  company  having  a  line  of  railway  in 
both  states.  Harvey  v.  Thompson,  g:  765, 
57  S.   E.   104,  128  Ga.  147. 

Seizure,   sale,   or  destruction  of  prop- 
erty. 
Police  power  as  to,  see  infra,  650-653. 

608.  A  statute  permitting  the  appoint- 
ment of  an  agent  for  an  absent  heir,  who 
shall  have  power  to  sell  the  estate  without 
notice  to  the  heir  if  it  remains  in  his  hands 
a  certain  time  unclaimed,  and  pay  the  pro- 
ceeds into  the  county  treasury,  subject  to 
the  claim  of  such  heir,  does  not  deprive 
the  heir  of  his  property  without  due  pro- 
cess of  law,  since  the  sale  is  merely  part  of 
the  proceeding  by  which  the  heir  acquires 
his  property  under  the  inheritance  laws. 
Bickford  v.  Stewart,  34:623,  104  Pac.  263, 
106  Pac.  1115,  55  Wash.  278. 

609.  The  provisions  of  the  Idaho  act  of 
February  6,  1899  (Laws  1899,  p.  389),  au- 
thorizing the  summary  seizure  and  destruc- 
tion of  gambling  devices,  do  not  deprive  a 
ci4;izen  of  his  property  without  due  process 
of  law,  in  violation  of  Idaho  Const,  art.  1, 
§  13.  Mullen  v.  Mosely,  12:  394,  90  Pac.  986, 
13   Idaho,   457.  (Annotated) 

610.  The  confiscation  and  sale  at  auction 
of  nets  used  in  fishery  contrary  to  the  pro- 
vision of  a  statute  may  be  authorized  by 
the  legislature  without  according  the  owner 
notice  or  a  hearing;  he  has  a  sufficient 
remedy  in  an  action  to  recover  the  prop- 


CONSTITUTIONAL  LAW,  II.  b,  7. 


581 


erty,  or  damages  for  its  wrongful  destruc- 
tion, or  by  way  of  injunction  to  restrain 
its  sale.  Daniels  v.  Homer,  3:  997,  51  S.  E. 
992,  139  N.  C.  219.  (Annotated) 

611.  Permitting  a  humane  society  officer, 
in  his  discretion,  ix)  take  possession  of  neg- 
lected and  abandoned  animals,  and  create, 
without  notice,  a  lien  upon  them  for  their 
care,  violates  the  constitutional  guaranty 
of  due  process  of  law,  the  statute  not  pro- 
viding for  the  payment  of  any  surplus  to 
the  owner  upon  the  sale  of  the  property  in 
satisfaction  of  the  lien,  and  no  .public  ne- 
cessity existing  for  the  seizure.  Jenks  v. 
Stump,  15:  554,  93  Pac.  17,  41  Colo    281. 

(Annotated) 

612.  The  confiscation  and  destruction  of 
milk  intended  to  be  sold  within  a  city, 
which  has  been  drawn  from  cows  which  have 
nat  been  subjected  to  the  tuberculin  test, 
as  required  by  a  municipal  ordinance,  does 
not  unconstitutionally  deprive  the  owner  of 
his  property  without  due  process  of  law. 
Adams  v.  Milwaukee,  43:  1066,  129  N.  W. 
518,   144  Wis.   371.  (Annotated) 

613.  A  municipal  ordinance  authorizing 
the  summary  destruction  of  milk  brought 
into  the  city  for  sale,  which  has  been 
drawn  from  cows  which  have  not  been  sub- 
jected to  the  tuberculin  test,  as  required 
by  law,  neither  violates  the  constitutional 
rights  of  the  citizens,  nor  amounts  to  a 
taking  of  property  without  due  process  of 
law,  although  milk  which  may  be  subject 
to  destruction  thereunder  may  in  fact  be 
fit  for  food  purposes.  Nelson  v.  Minne- 
apolis, 29:  260,  127  N.  W.  445,  112  Minn.  16. 

(Annotated) 

614.  A  statute  wliich  creates  a  commis- 
sion with  power  to  inspect  premises,  and, 
in  case  of  the  discovery  of  certain  insect  or 
plant  diseases  which  render  the  destruction 
of  the  trees,  shrubs,  or  plants  advisable,  to 
mark  those  so  infested,  and  notify  the  own- 
er, who  shall  within  a  stated  time  destroy 
the  same,  is  not  invalid  because  no  proce- 
dure or  method  is  provided  by  which  the 
owner  may  contest  the  necessity  for  the  de- 
struction of  the  property.  Balch  v.  Glenn, 
43:  1080,  119  Pac.  67,  85  Kan.  735. 

d.  As  to  evidence;  witnesses. 

(See   also    same   heading   in   Digest   L.R.A. 
1-10.) 

615.  The  legislature  has  power  to  estab- 
lish rules  of  evidence,  where  not  in  conflict 
with  the  Constitution  or  rights  guaranteed 
by  it.  Banks  v.  State,  2:  1007,  52  S.  E.  74, 
124  Ga.  15. 

616.  A  constitutional  provision  for  a  re- 
view by  the  supreme  court  of  the  reasonable- 
ness and  lawfulness  of  an  order  made  by 
the  state  corporation  commission,  upon  the 
evidence  adduced  before  the  commission, 
does  not  deny  due  process  of  law  because, 
on  a  review  upon  removal  by  the  commis- 
sion, additional  evidence  is  not  allowed,  but 
the  court  is  required  to  act  on  the  evidence 
already  taken,  where  the  court  is  not  bound 
by  the  findings  of  the  commission,  and  the 
Digest   1-52  L.R.A.(N.S.) 


party  affected  had  the  right  on  the  original 
hearing  to  introduce  evidence  as  to  all  ma- 
terial points.  Seward  v.  Denver  &  R.  G. 
R.  Co.  46:  242,  131  Pac.  980,  17  N.  M.  557. 

617.  The  provision  of  Ohio  Rev,  Stat.  § 
4427-6,  that  the  character  of  an  alleged 
trust  or  combination  may  be  established  by 
proof  of  its  general  reputation  as  such,  is 
unconstitutional  and  void  in  that  it  pre- 
scribes a  rule  of  evidence  which  is  violative 
of  the  guaranty  contained  in  U.  S.  Const, 
art.  15,  §  1,  that  no  person  shall  be  deprived 
of  "life,  lil3erty,  or  property"  without  due 
process  of  law.    Hammond  v.  State,  15:  906, 

84  N.  E.  416,  78  Ohio  St.  15. 

618.  A  legislative  attempt  to  confer  mpon 
the  court  the  power  in  a  criminal  case  to 
appoint  experts  in  case  they  are  needed, 
and  acquaint  tlie  jury  with  the  fact,  who 
shall  prepare  themselves  and  give  testimony 
in  the  case,  is  invalid,  as  tending  to  de- 
prive the  accused  of  du©  process  of  law. 
People  V.  Diekerson,  33:  917,  129  N.  W.  199, 
164  Mich.  148.  (Annotated) 

Burden  of  proof. 

619.  The  legislature  has  authority  to  pro- 
vide, in  appeals  from  orders  of  the  state 
railway  commission,  that  the  burden  of 
proof  shall  rest  upon  the  party  seeking  to 
set  aside  the  decision  of  the  commissioners, 
to  show  by  clear  and  satisfactory  evidence 
that  the  order  is  unreasonable  and  unjust, 
and  that  the  record  shall  be  prima  facie 
evidence  that  the  order  is  just  and  reason- 
able. Chicago,  R.  I.  &  P.  R.  Co.  v.  Nebras- 
ka State   R.   Com.  26:  444,   124  N.   W.  477, 

85  Neb.  818. 

620.  The  attempt  by  the  legislature  to  re- 
quire a  person  libeled  to  prove  malice 
in  order  to  secure  substantial  damages,  if 
he  demands  and  secures  a  retraction,  un- 
constitutionally abridges  his  privileges  and 
immunities,  and  takes  away  his  constitu- 
tional remedy  for  injury  to  reputation. 
Byers  v.  Meridian  Printing  Co.  38:  913,  95 
N.   E.   917,   84   Ohio   St.   408. 

Prima  facie  evidence;  presumptions. 
See  also  supra,  140-142,  277, 

621.  Neither  §  3  of  Minnesota  Gen.  Stat. 
1913,  §  8719,  making  the  general  reputation 
of  a  place  as  being  a  bawdyhoiise  prima 
facie  evidence  of  the  existence  of  the  nui- 
sance, nor  §  5  of  such  statute,  creating  a 
presumption  of  knowledge  on  the  part  of 
all  persons  having  property  interest  in  the 
property  in  or  about  such  house,  constitutes 
interference  with  property  rights  without 
due  process  of  law,  since  they  effect  merely 
a  change  in  a  matter  of  procedure.  State  ex 
rel.  Robertson  v.  Lane,  52:  932,  147  N.  W 
951,  126  Minn.  78. 

622.  A  statute  providing  that  departing 
from  a  hotel  or  boarding  house,  or  removing, 
or  surreptitiously  attempting  to  remove, 
baggage  therefrom,  without  paying  for  ac- 
commodations, is  prima  facie  evidence  of  in- 
tent to  defraud,  does  not  deprive  accused  of 
any  constitutional  right.  Re  Milecke,  21: 
259,   100  Pac.  743,  52  Wash.  312. 

(Annotated) 

623.  Neither  the  equal  protection  of  the 


582 


CONSTITUTIONAL  LAW,  II.  b,  8. 


laws  nor  due  process  of  law  is  denied  by 
Miss.  Code  1906,  §  1985,  under  which,  in 
actions  against  railway  companies  for  dam- 
age done  to  persons  or  property,  proof  of  in- 
jury inflicted  by  the  running  of  the  locomo- 
tives or  cars  is  made  prima  facie  evidence 
of  negligence.  Mobile,  J.  &  K.  C.  R.  Co. 
V.  Tumipseed,  32:  226,  31  Sup.  Ct.  Rep.  136, 
219  U.  S.  35,  55  L.  ed.  78.  (Annotated) 

624.  Statutory  provisions  for  a  commit- 
ment of  an  alleged  insane  person  on  the  cer- 
tificate of  physicians,  and  an  inquisition  as 
to  whether  o'r  not  he  is  a  public  charge, 
make  the  certificate  merely  prima  facie  evi- 
dence of  insanity,  subject  to  be  overthrown 
by  countervailing  evidence,  and  the  statute 
does  not  therefore  deprive  the  alleged  in- 
sane person  of  his  liberty  without  due  pro- 
cess of  law.  Re  Allen,  26:  232,  73  Atl.  1078, 
82  Vt.  365, 

Conclusiveness. 

Statute  fixing  evidence  required  from  per- 
sons claiming  personalty  used  in  main- 
taining bawdyhouse,  see  Evidence, 
2198. 

625.  A  statute  requiring  cotton  sold  in  a 
cotton  yard  or  warehouse  to  be  reweighed 
upon  its  removal  from  the  same,  in  the 
presence  of  the  owner  or  purchaser  from 
such  owner,  and  making  the  weight  as  thus 
determined  conclusive  between  the  owner 
and  the  purchaser,  is  unconstitutional  as 
denying  the  owner  or  purchaser,  when  sued 
by  the  other,  due  process  of  law.  Taylor  v. 
Anderson,  51:  731,  137  Pac.  1183,  40  Okla. 
316,  (Annotated) 

626.  A  statute  making  the  acknowledg- 
ment of  receipt  of  property  for  transporta- 
tion, contained  in  a  bill  of  lading,  conclusive 
evidence  of  the  fact  so  stated,  in  favor  of 
bona  fide  holders  for  value,  does  not  pre- 
scribe a  rule  of  evidence,  so  as  to  interfere 
with  the  constitutional  power  of  the  courts 
to  investigate  facts,  and  deprive  the  carrier 
of  its  property  without  due  process  of  law. 
Yazoo  &  M.  V.  R.  Co.  v.  Bent  22:  821,  47 
So,    805,   94  Miss,   681.  (Annotated) 

8.  Criminal  matters. 

As  to  illegal  competition  and  combination, 

see  supra,  461-463. 
As  to  delinquent  children,  see  supra,  357, 

358. 
Denial  of  appeal,  see  supra,  547. 
Confinement  of  insane  person  acquitted  of 

crime,  see  supra,  568,  569. 
Equal  protection  and  privileges  as  to,  see 

supra,  II.  a,  8. 
Due  process  as  to  remedies  and  procedure, 

see  supra,  570-573. 
Police  power  as  to,  see  infra,  II.  c,  5. 
As  to  arrest  without  warrant,  see  Abbest, 

I.  d. 
Infringement    of    ccwistitutional    rights    by 

change  of  rule  as  to  what  constitutes 

larceny,  see  Coubts,  304. 
Right  to  public  trial,  see  Criminal  Law, 

83-86. 
Digest   1-52  I^R.A.(N.S.) 


Right  to  speedy  trial,  see  Cbiminal  Law, 

87-94. 
Right  to  meet  witnesses,  see  Cbiminal  Law, 

95-103. 
As  to  self-crimination,  see  Cbiminal  Law, 

107-121,  131;  Witnesses,  II.  c. 
Right  of  accused  to  be  present,  see  Criminal 

Law,  125-130. 
Necessity  of  indictment  or  information,  see 

Criminal  Law,  II.  d. 
Former  jeopardy,  see  Criminal  Law,  II.  g. 
Guaranty    of   trial   without   prejudice,    see 

Judges,  8,  9. 
See  also  supra,  499,  502,  581. 

627.  No  constitutional  right  to  liberty  or 
property  is  interfered  with,  or  unconstitu- 
tional privilege  or  immunity  granted,  by  a 
statute  making  it  a  penal  offense  to  pay  less 
than  a  prescribed  minimum  wage  to  school 
teachers.  Bopp  v.  Clark,  52:  493,  147  N. 
W.  172,  —  Iowa,  — . 

627a.  Rendering  the  proprietor  of  a  Chi- 
nese restaurant  criminally  liable  for  per- 
mitting woman  under  the  age  of  twenty-one 
years  to  enter  it  or  be  served  with  food  or 
drink  there  deprives  him  of  his  liberty  and 
property  without  due  process  of  law,  and 
denies  him  the  equal  protectioji  of  the  laws. 
Re  Opinion  of  the  Justices,  34:  604,  94  N, 
E,  558,  207  Mass.  601,  (Annotated) 

628.  A  provision  that  upon  conviction 
for  violation  of  a  statute  providing  that  all 
rooms  except  drug  stores  where  intoxicat- 
ing liquors  are  sold  shall  be  kept  closed 
on  Sunday,  the  license  shall  be  revoked  and 
the  rooms  and  premises  not  used  for  the 
saL,  storage,  or  manufacture  of  intoxicat- 
ing liquors  for  one  year  from  the  date  of 
conviction,  does  not  deprive  a  licensed 
liquor  dealer  so  convicted  of  his  property 
without  due  process  of  law.  State  v. 
Woodward,  30:  1004,  69  S.  E.  385,  68  W. 
Va.  66.  (Annotated) 

629.  The  Federal  constitutional  guaranty 
of  due  process  of  law  does  not  prevent  the 
placing  of  an  accused  who  has  been  indicted 
for  murder  and  convicted  of  voluntary  man- 
slaughter, again  on  trial  for  murder  on  a 
new  trial  obtained  by  him  on  his  own 
motion,  under  a  state  constitutional  pro- 
vision that  no  person  shall  be  put  in 
jeopardy  of  life  or  liberty  more  than  once 
for  the  same  offense,  save  on  his  own  motion 
for  a  new  trial  after  conviction,  or  in  case 
of  mistrial.  Brantley  v.  State,  22:  959,  64 
S,  E.  676,  132  Ga.  573. 

630.  A  statute  providing  that  a  prisoner 
in  a  state  prison  for  a  term  less  than  life, 
who  shall  escape,  shall  be  punishable  by 
imprisonment  for  a  term  equal  to  the  term 
he  is  serving,  the  second  term  of  imprison- 
ment to  commence  from  the  time  he  would 
otherwise  have  been  discharged,  does  not 
deny  due  process  of  law  to  persons  charged 
with  a  violation  thereof.  Re  Mallon,  22: 
1 123,  102  Pac.  374,  16  fdaho,  737. 

(Annotated) 


CONSTITUTIONAL  LAW,  II.  c,  1. 


583 


c.  Police  power. 
1.  In  general. 

(See  also   same  heading  in  Digest  L.R.A. 

1-10.) 

As  affecting  commerce,  see  Commeece,  28, 
44,  48. 

Judicial  review  of,  see  Coubts,  I.  c,  2,  b. 

Drainage  of  lands  as  exercise  of  police  pow- 
er, see  Drainage  Districts,  2. 

Taking  of  property  witliout  compensation 
in  exercise  of  police  power,  see  Eminent 
Domain,  213. 

Riglit  under,  to  extend  limits  of  municipal- 
ity along  toll  road,  see  Eminent  Do- 
main, 215. 

Police  power  of  municipality,  see  Municipal 
Corporations,  II.  c. 

Legislature  as  judge  of  when  and  how  police 
power  shall  be  exercised,  see  Statutes, 
16. 

Tax  on  dogs  as  police  measure,  see  Taxes, 
42. 

See  also  supra,  152,  575,  576. 

631.  The  provision  of  U.  S.  Const,  art. 
14,  §  1,  against  any  state  depriving  any 
person  of  life,  liberty,  or  property  without 
due  process  of  law,  is  not  a  limitation  upon 
the  police  power  of  the  state  to  pass  and 
enforce  such  laws  as,  in  its  judgment,  will 
inure  to  the  health,  morals,  and  genera'  wel- 
fare of  the  people.  Meffert  v.  Packer, 
i:8ii,  72  Pac.  247,  66  Kan.  710,  affirmed 
in  25  Sup.  Ct.  Rep.  790,  195  U.  S.  625,  49 
L.  ed.  350. 

632.  Legislation  under  the  police  power  is 
subject  to  constitutional  limitations,  some 
of  which  are-  express,  and  others  are  im- 
plied. '  State  V.  Redmon,  14:  229,  114  N.  W. 
137,  134  Wis.  89. 

633.  The  police  power  extends  to  the  en- 
actment of  all  laws  which,  in  contemplation 
of  the  Constitution,  are  reasonably  neces- 
sary to  promote  the  welfare  of  the  public 
as  distinguished  from  the  interests  of  a 
particular  class.  State  v.  Redmon,  14:  229, 
114  N.  W.  137,  134  Wis.  89. 

634.  The  legislature  cannot,  properly,  by 
police  regulations,  deal  with  a  matter  not 
in  reason  forming  a  proper  subject  therefor, 
nor  deal  with  a  proper  subject  by  means 
which  are  clearly  unreasonable.  State  v. 
Redmon,  14:  229,  114  N.  W.  137,  134  Wis. 
89. 

635.  Police  regulations  which  are  reason- 
able are  not  inhibited  by  the  Constitution, 
though  invading  its  letter,  since  the  exer- 
cise of  police  power  is  so  essential  to  the 
public  welfare  that  it  is  presumed  that  such 
exercise  within'  reasonable  limitations  was 
not  intended  to  be  prohibited,  but,  on  the 
contrary,  to  be  guaranteed,  by  the  general 
declared  purpose  of  civil  government  and 
the  manifest  purpose  of  the  Constitution. 
State  V.  Redmon,  14:  229,  114  N.  W.  137, 
134  Wis.  89. 

636.  Legislative  authority  under  the  po- 
lice power  cannot  properly  extend  beyond 
such  reasonable  interferences  as  tend  to 
Digest  1-52  Ii.R.A.(N.S.) 


preserve  and  promote  the  enjoyment  gen- 
erally of  those  "unalienable  rights"  with 
which  all  men  are  endowed,  and  to  secure 
which  "governments  are  instituted  among 
men."  Bonnett  v.  Vallier,  17:  486,  116  N. 
W.  885,   136  Wis.   193. 

637.  The  measure  of  the  reasonableness 
of  a  police  regulation  is  not  necessarily 
what  is  best,  but  what  is  fairly  appropriate 
to  the  purpose  under  all  the  circumstances. 
Bonnett  v.  Vallier,  17:  486,  116  N.  W.  885, 
136    Wis.    193. 

638.  The  provisions  of  an  act  to  establish 
a  bureau  of  vital  statistics,  and  to  provide 
for  a  prompt  and  permanent  registration  of 
all  births  and  deaths  occurring  within  the 
state,  which  require  a  physician  or  midwife 
in  attendance  upon  the  birth  of  a  child  to 
certify,  without  compensation,  as  to  legiti- 
macy or  illegitimacy,  and,  if  legitimate,  to 
supply  information  in  regard  to  the  parents 
of  the  child,  are  an  unreasonable  and  arbi- 
trary exercise  of  the  police  power,  and 
therefore  unconstitutional  and  void.  State 
V.  Boone,  39:  1015,  95  N.  E.  924,  84  Ohio  St. 
346,  97  N.  E.  975,  85  Ohio  St.  313. 

(Annotated) 

639.  The  legislature  may  under  its  police 
power  forbid  parties  who  are  not  members 
of  secret  societies,  to  wear  the  badges 
belonging  to  such  societies.  Hammer  v. 
State,  24:  795,  89  N.  E.  850,  173  Ind.  199. 

640.  The  legislature  cannot,  under  its  po- 
lice power,  prohibit,  or  authorize  the  voters 
of  the  county  to  prohibit,  the  establish- 
ment within  the  county  limits,  by  a  pri- 
vate charitable  corporation,  of  an  indus- 
trial school  for  colored  children.  Columbia 
Trust  Co.  v.  Lincoln  Institute,  29:  53,  129 
S.   W.   113,   138  Ky.   804.  (Annotated) 

641.  The  police  power  does  not  extend  to 
the  exclusion  of  young  women  from  restau- 
rants kept  by  Chinese  persons,  since  such 
a  regulation  has  no  direct  relation  to  the 
evil  to  be  remedied.  Re  Opinion  of  the 
Justices,  34:  604,  94  N.  E.  558,  207  Mass. 
601. 

Assessments. 

Due  process  of  law  as  to,  see  supra,  411- 

415,  605,  606. 
For  laying  water  pipes  in  city,  see  Public 

Improvements,  68. 

642.  If  a  state  contains  marshy  lands  of 
such  considerable  area  that  their  reclama- 
tion for  agricultural  purposes  will  redound 
to  the  public  welfare,  the  legislature  may 
provide  for  their  reclamation,  under  the  po- 
lice power,  and  secure  the  necessary  funds 
by  taxation  of  the  lands  benefited  by  the 
drainage.  Billings  Sugar  Co.  v.  Fish,  26: 
973,  106  Pac.  565,  40  Mont.  256. 

( Annotated ) 
642a.  The  legislature  may,  under  the  po- 
lice power,  provide  for  the  assessment  of  a 
fixed  proportion  of  the  cost  of  a  public 
sanitary  sewer  upon  abutting  property  by 
the  front-foot  rule,  so  that  each  parcel  pays 
for  the  cost  of  its  local  service  sewer  with- 
out regard  to  the  benefits  actually  accru- 
ing to  the  property.  Chicago,  M.  &  St.  P. 
R.  Co.  V.  Janesville,  28:  1124,  118  N.  W.  182, 
137  Wis.  7. 


584 


CONSTITUTIONAL  LAVS',  II.  c,  2,  3. 


2.  State  engaging  in  business. 

{Bee  also  same  heading  in  Digest  L.R.A. 
1-70.) 

As  to  functions  and  powers  of  state,  see 
supra,  I.  g. 

3.  As  to  use,  enjoyment,  and  destruc- 
tion of  property. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Regulation  of  cutting  of  trees  on  wild  land 
as  exercise  of  police  power,  see  Emi- 
nent Domain,  182. 

See  also  supra,  521. 

643.  The  police  power  does  not  extend 
to  placing  a  fire  house  upon  a  city  lot,  in 
violation  of  a  restrictive  building  covenant 
to  which  the  property  is  subject,  without 
terminating  the  covenants  by  purchase  or 
condemnation.  Allen  v.  Detroit,  36:  890, 
133  N.   \V.  317,  167  Mich.  4^4. 

644.  The  state  may,  under  its  police 
power,  take  away  the  absolute  right  of  a 
man  to  alienate  land  which  has,  under  the 
statute,  been  dedicated  to  the  purpose  of  a 
homestead.  Bushnell  v.  Loom  is,  36:  1029, 
137    S.   W.   257,   234   Mo.   371. 

(Annotated) 
Intoxicating   liquors. 
Due  process  of  law  as  to,  see  supra.   423, 

529. 
Police  power  to  regulate  sale  of  liquor,  see 

infra,  739-743. 

645.  The  police  power  does  not  extend  to 
depriving  a  citizen  of  the  right  to 
have  intoxicating  liquor  in  his  possession 
for  his  own  use.  Com.  v.  Campbell,  24:  172, 
117  S.  W.  383,  133  Ky.  50.         (Annotated) 

646.  There  is  no  inherent  right  in  a  pur- 
chaser of  intoxicating  liquor  to  offer  it  to 
another  in  a  saloon  as  an  act  of  hospitality, 
which  cannot  be  taken  away  under  the  po- 
lice power  of  the  state.  Tacoma  v.  Keisel, 
40:  757,  124  Pac.  137,  68  Wash.  685. 
Highw^ays. 

Equal  protection   and   privileges  as  to,  see 

supra,  157-162,  253-255. 
Due  process  of  law  as  to,  see  supra,  522. 
See  also  infra,  685. 

647.  The  police  power  of  a  municipal  cor- 
poration does  not  extend  to  requiring  a 
railroad  company  which  has  elevated  its 
tracJ<8  over  a  street  crossing,  to  light  the 
subway,  although  it  is  darkened  by  the 
tracks,  since  persons  passing  through  the 
subway  encounter  no  danger  from  the  oper- 
ation of  the  railroad.  Chicago  v.  Pennsyl- 
vania Co.  36:  1081,  96  N.  E.  833,  252  ill. 
185.  (Annotated) 

648.  The  state  may,  in  the  exercise  of  its 
police  power,  impose  upon  railroad  compa- 
nies whose  lines  intersect  public  highways 
laid  out  after  the  construction  of  the  rail- 
road, the  uncompensated  duty  of  construct- 
ing and  maintaining  at  such  crossing  all 
•ueh  safety  devices  as  are  reasonably  neces- 
Bary  for  the  protection  of  t'le  traveling  pub- 
lic. State  ex  rel.  Minneapolis  v.  St.  Paul, 
Digest  1-52  L.R.A.(N.S.) 


I  M.  &  M.  R.  Co.  28:  298,  108  N.  W.  261,  98 
Minn.  380. 

649.  A  provision  in  a  general  city  ordi- 
nance regulating  tiie  use  of  motor  vehicles, 
that  "it  shall  be  unlawful  for  any  person 
operating  a  motor  cycle  to  carry  another 
person  on  said  machine  in  front  of  the  op- 
erator," is  a  valid  exercise  of  the  police 
power  of  the  city  in  respect  to  the  safety 
of  travelers  on  the  city  streets  and  persons 
carried  on  motor  cycles.  Re  Wickstrum, 
42:  1068,  138  N.  W.  733,  92  Xeb.  523. 
Nuisances;  seizure  and  destruction  of 

property. 
Due  process   of  law   as  to,   see  supra,   383, 
608-614. 

650.  The  emission  of  dense  smoke  by  yard 
and  switch  engines,  being  caused  by  the  use 
of  soft  coal  therein,  a  prohibition  of  such 
use  within  a  populous  city  is  substantially 
related  to,  and  directly  tends  to,  the  pre- 
vention of  a  nuisance, — the  emission  of 
dense  smoke, — and  is  an  exercise  of  the 
police  power  of  tha  state,  within  constitu- 
tional limits.  State  v.  Chicago,  M.  &  St. 
P.  R.  Co.  33:  494,  130  N.  W.  545,  114  Minn. 
122. 

651.  A  statute  creating  an  entomological 
commission,  and  providing  for  the  extermi- 
nation of  San  Jose  scale  and  other  orchard 
pests,  and  authorizing  such  commission  to 
enter  upon  premises  and  inspect  them  for 
insect  or  plant  diseases,  and,  in  case  of  dis- 
covery of  any  to  mark  same  and  notify  the 
owner,  and  requiring  him  within  a  certain 
time  to  destroy  or  treat  the  same  in  accord- 
ance with  the  rules  and  regulations  of  the 
commission  and  in  the  event  of  his  failure 
so  to  do  authorizing  the  commission  to  do 
this,  the  expense  thereof  to  be  taxed  against 
the  owner,  is  a  valid  exercise  of  the  police 
power  of  the  state.  Balch  v.  Glenh,  43: 
1080.  119  Pac.  67,  85  Kan.  735. 

652.  The  anti-gambling  act  (Idaho  Laws 
1899,  p.  390,  §  4),  which  authorizes  the  sum- 
mary seizure  and  destruction  of  gambling 
devices,  is  a  constitutional  and  legitimate 
exercise  of  the  police  power  of  the  state  for 
the  suppression  and  prevention  of  crime,  and 
for  the  protection  of  the  public  morals  and 
the  welfare  of  the  state.  Mullen  v.  Mosely, 
12:  394,  90  Pac.  986,  13  Idaho,  457. 

653.  Public  authorities  have  the  right  to 
require  the  destruction  of  a  cow  shown  by 
a  practically  infallible  test  to  have  tuber- 
culosis and  to  be  'a  serious  menace  to  the 
public  health,  without  compensation  to  the 
owner  and  without  judicial  inquiry.  New 
Orleans  v.  Charouleau,  18:  368,  46  So.  911, 
121  La.  890.  (Annotated) 
Animals. 

Due  process   of  law  as  to,   see  supra,   525, 

526. 
See  also  supra,  653. 

654.  The  legislature,  in  declaring  the 
failure  of  a  sheep  owner  to  report  within 
fifteen  days  to  the  sheep  inspector  the  out» 
break  of  any  contagious  disease  in  his 
flocks  to  be  a  misdemeanor,  is  exercising 
the  police  powers  of  the  state;  and,  in  an 
action  against  the  owner  of  the  infected 
herd  to  recover  damages  for  the  communi- 


CONSTITUTIONAL  LAW,  II.  c,  4. 


585 


cation  of  the  disease  to  plaintiff's  sheep,  it 
need  not  be  alleged  that  defendant  knew 
that  the  act  complained  of  was  unlawful. 
North  V.  Woodland,  6:  921,  85  Pac.  215,  12 
Idaho,  50. 

655.  A  statute  requiring  the  levy  and  col- 
lection, as  of  other  taxes,  of  a  per  capita 
tax  on  dogs  upon  the  real  estate  upon  which 
the  dogs  may  have  been  kept  and  harbored, 
notwithstanding  the  owner  of  such  real  es- 
tate had  no  knowledge  that  the  dogs  had 
been  harbored  thereon,  and  was  not  consent- 
ing thereto,  is  unconstitutional  and  void,  it 
being  an  arbitrary  and  unreasonable  exer- 
cise of  police  power,  not  required  by  the 
general  welfare.  Mirick  v.  Gims,  20:  42,  86 
N.  E.  880,  79  Ohio  St.  174.  (Annotated) 
Protection  of  fish. 

Equal  protection   and   privileges  as  to,   see 

supra,  287,  288. 
Due  process  of  law  as  to,*  see  supra,  527, 

528. 

656.  The  state  may,  under  its  police  pow- 
er, for  the  protection  of  food  Ash  in  the 
streams  of  the  state,  prohibit  the  deposit 
of  mill  refuse  therein.  State  v.  Haskell, 
34:  286,  79  Atl.  852,  84  Vt.  429. 

657.  The  state  is  owner  of  the  fish  in  its 
streams,  and  as  such,  under  its  police  pow- 
er, may  enact  legislation  to  protect  the 
propagation  of  fish  from  injury  from  plac- 
ing in,  or  allowing  the  entrance  into, 
streams  of  any  matter  of  any  kind  dele- 
terious to  the  propagation  of  fish.  State 
V.  Southern  Coal  &  Transp.  Co.  43:401,  76 
S.  E.  970,  71  \\.  Va.  470. 

658.  Section  6a,  chap.  62,  serial  §  2768, 
W.  Va.  Code  of  1906,  making  it  an  offense  to 
put  into  a  stream  sawdust  or  any  matter 
deleterious  to  the  propagation  of  fish,  is  a 
valid  exercise  by  the  state  of  its  police  pow- 
er, and  an  operator  of  a  coal  miro  can  as- 
sert no  right  contrary  to  its  enactment,  to 
drain  sulphur  or  mine  water  from  his  mine 
into  a  stream,  deleterious  to  the  propaga- 
tion of  fish,  though  such  stream  be  the  nat- 
ural receptacle  of  such  drainage,  or  it  be 
impracticable  to  drain  the  mine  otherwise. 
State  V.  Southern  Coal  &  Transp.  Co. 
43:  401,  76  S.  E.  970,  71  W.  Va.  470. 
Signs. 

659.  The  police  power  of  a  municipal  cor- 
poration does  not  authorize  it  to  limit  the 
height  of  advertising  signs  erected  over 
structures  on  private  property,  where  such 
limitation  is  not  necessary  to  the  safety  of 
the  public,  and  is  not  applicable  to  struc- 
tures of  other  kinds.  People  ex  rel.  M. 
Wineburgh  Advertising  Co.  v.  Murphy,  21: 
735,  88  N.  E.  17,  195  N.  Y.  126. 

( Annotated ) 
Building    regulations. 
Equal  protection   and  privileges  as  to,   see 

supra,  178,  179. 
Due  process  of  law  as  to,  see  supra,  379- 

381,  518. 

660.  An  ordinance  making  it  unlawful  to 
locate,  build,  or  construct  any  retail  store 
in  any  block  used  exclusively  for  residence 
purposes  without  the  written  consent  of  a 
majority  of  the  property  owners,  according 
to  frontage,  on  both  sides  of  the  street  in 
Digest  1-52  L.R.A.(N.S.) 


the  block  in  which  the  building  is  to  be 
located,  cannot  be  sustained  as  an  exercise 
of  the  police  pov.er,  there  being  nothing  in- 
herently dang(>rous  to  the  health  or  safety 
of  the  public  in  conducting  a  retail  store. 
People  ex  rel.  Friend  v.  Chicago,  49:  438, 
103  N.  E.  609,  261  111.  16.  (Annotated) 

661.  A  municipal  corporation  authorized 
by  its  charter  to  control  the  construction 
and  repair  of  all  houses  may,  in  the  exercise 
of  police  power,  require  the  procurement  of 
a  permit  from  it  as  a  prerequisite  to  the 
erection  of  a  building  within  the  city  limits. 
Fellows  V.  Charleston,  13:  737,  59  S.  E.  623, 
52  W.  Va.  605.  (Annotated) 

662.  The  state  may,  in  the  exercise  of  the 
police  power,  limit  the  height  of  buildings 
to  be  erected  in  cities  when,  in  its  judgment, 
the  public  health  or  public  safety  so  require. 
Welch  V.  Swasey,  23:  1160,  79  N.  E.  745, 
193  Mass.  364.  (Annotated) 

663.  An  unconstitutional  infringement  of 
the  guaranties  of  U.  S.  Const.  14th  Amend., 
which  cannot  be  upheld  as  an  exercise  of 
the  police  power,  results  from  a  municipal 
ordinance  passed  under  the  authority  of  Va. 
Laws  1908,  p.  623,  which  requires  the  com- 
mittee on  streets,  upon  request  of  the  own- 
ers of  two  thirds  of  the  abutting  property, 
to  establish  a  building  line  on  the  side  of 
the  square  on  which  such  property  abuts, 
not  less  than  5  nor  more  than  30  feet  from 
the  street  line.  Eubank  v.  Richmond,  42: 
1 123,  33  Sup.  Ct.  Rep.  76,  226  U.  S.  137,  57 
L.  ed.  156.  (Annotated) 

4.   Restrictions  on  contracts,   husiness, 
and  occupations;  health. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Equal  protection  and  privileges  as  to,  see 
supra,  II.  a,  5. 

Due  process  of  law  as  to,  see  supra,  II. 
b,  4. 

Forbidding  transportation  of  natural  re- 
sources beyond  state,  see  Commebce, 
37. 

Imposition  of  fee  for  privilege  of  conduct- 
ing brewery  business  where  products 
are  imported  from  other  state,  see 
Commerce,  114. 

See  also  supra,  237;  infra,  768. 

664.  The  contract  rights  conferred  upon 
a  corporation  by  the  grant  of  its  franchise 
do  not  interfere  with  exercise  by  the  state 
of  its  police  power.  Pennsylvania  R.  Co. 
v.  Ewing,  49:  977,  88  Atl.  775,  241  Pa.  581. 

665.  The  marking  of  fruit  packed  for 
shipment,  with  the  locality  in  which  it  is 
grown,  cannot  be  required  under  the  police 
power  of  the  state.  Ex  parte  Hayden, 
i:  184,   82  Pac.   315,   147   Cal.  649. 

(Annotated) 
Health   generally. 
Due  process  as  to,  see  supra,  350,  352,  372. 


586 


CONSTITUTIONAL  LAW,  II.  c,  4. 


Quarantine  and  inspection  laws  as  regula- 
tion of  commerce,  see  Commerce,  16- 
20. 

Prohibiting  keeping,  for  shipment  out  of 
state,  of  unwholesome  meats,  see  Com- 
merce, 109,  110. 

Sufficiency  of  title  of  statute  conferring 
right  to  exercise  police  power,  see 
Statxjtes,  92. 

See  also  supra,  642a,  653,  662.  ^ 

667.  The  police  power  extends  to  filling, 
against  the  protest  of  their  owners,  and 
assessing  the  enpense  upon  the  property 
benefited,  lots  located  in  or  near  the  busi- 
ness portion  of  a  city,  which  are  covered  by 
flood  tide,  and  because  of  inability  to  drain 
them  are  a  menace  to  the  public  health  and 
a  hindrance  to  the  growth  of  the  city,  where 
the  tract  is  of  considerable  extent,  and  the 
proposed  improvement  will  allow  proper 
drainage  and  the  construction  of  needed 
streets.  Bowes  v.  Aberdeen,  30:  709,  109 
Pac.  369,  58  Wash.  535.  (Annotated) 

668.  A  municipal  corporation  may,  under 
its  police  power,  forbid  further  interments 
in  a  cemetery  located  in  thiclcly  settled 
communities  within  its  limits,  although 
such  cemeteries  are  not  shown  to  be  in  fact 
nuisances.  Laurel  Hill  Cemetery  v.  San 
Francisco,  27:  260,  93  Pac.  70,  152  Cal.  464. 

(Annotated) 

669.  Requiring  a  certificate  of  freedom 
from  venereal  disease  as  a  condition  to  mar- 
riage is  within  the  police  power  of  the 
state.  Petersen  v.  Widule,  52:  778,  147  N. 
W.  966,  l.')7  Wis.  641.  (Annotated) 

670.  A  law  providing  that  the  upper  berth 
in  a  sleeping  car  shall  be  open  or  closed,  at 
the  option  of  the  occupant  of  the  lower 
berth,  when  not  occupied,  cannot  be  justi- 
fied as  essential  to  the  promotion  of  the 
public  health  and  comfort,  or  as  necessary 
thereto  in  the  judgment  of  the  legislature, 
else  its  operation  would  not  have  been  made 
optional.  State  v.  Redmon,  14:  229,  114  N. 
W.  137,  134  Wis.  89. 

Pollution  of  waters;  xrater  snpply. 

671.  No  constitutional  property  right  is 
invaded  by  absolutely  prohibiting  the  cast- 
ing of  any  obnoxious  matter  into  any  run- 
ning stream  of  the  state.  People  v.  Hupp, 
41:  792,  123  Pac.  651,  53  Colo.  80. 

672.  The  legislature  may,  under  its  police 
power,  forbid  the  discharge  of  unpurified 
sewage  into  a  river  frOm  which  a  public 
drinking-water  supply  is  taken,  without  in- 
fringing the  constitutional  rights  of  the  ri- 
parian owner,  although  no  injury  to  the 
public  health  or  comfort  is  actually  shown. 
Durham  v.  Eno  Cotton  Mills,  7:  321,  54  S.  E. 
453,  141  N.  C.  615.  (Annotated) 

673.  A  long-continued  use  of  a  river  as 
an  outlet  for  raw  sewage  will  not  prevent 
the  legislature  from  forbidding  further  use 
of  it  for  such  purpose,  under  its  police 
power.  Shelby  v.  Cleveland  Mill  &  Power 
Co.  35:  488,  71  S.  E.  218,  155  N.  C.  196. 

674.  A  prohibition  of  bathing  in  ponds 
from  which  municipal  water  supplies  are 
taken  is  not  so  unnecessary  or  unreason- 
able a  matter  of  law  that  the  court  will 
declare  that  it  does  not  come  within  the 
Digest   1-52  KR.A.(N.S.) 


police  power  of  the  state.     State  v.  Morse, 

34:  190,  80  Atl.   189,  84  Vt.  387. 

Use  of  flag. 

Equal  privileges  as  to,  see  supra,  124,  125, 

251,  252. 
Due  process  of  law  as  to,  see  supra,  523, 

524. 
See  also  Flag. 

675.  A  state  statute  forbidding  the  des- 
ecration of  the  flag  of  the  United  States 
by  using  it  for  advertising  purposes  tends  to 
foster  sentiments  of  patriotism,  and  is  not 
vulnerable  to  the  objection  that  it  is  not 
calculated  to  promote  the  welfare  of  society. 
Halter  v.  State,  7:  1079,  105  N.  W.  298,  74 
Neb.  757.  (Annotated) 
Lodging  houses  and  tenements. 

Due  process  of  law  as  to,  see  supra,  464, 
465. 

676.  The  regulation  and  maintenance  of 
tenements,  lodging  houses,  and  boarding 
houses  is  a  proper  subject  for  legislative  in- 
terference; but  the  degree  ot  regulation 
permissible  varies  greatly  according  to  cir- 
cumstances; and  a  police  regulation  in  re- 
gard thereto  which  would  not  be  excessive 
as  to  a  large  city  might  be  unreasonable  if 
applied  to  the  state  at  large.  Bonnett  v. 
Vallier,  17:  486,  116  N.  W.  885,  136  Wis.  193. 

677.  There  must  be  reasonable  ground, 
having  regard  for  the  public  welfare,  for 
legislative  interference,  under  the  police 
power,  with  the  mode  of  constructing, 
equipping,  and  maintaining  tenement  houses, 
and  the  means  adopted  to  accomplish  the 
purpose  in  view  must  be  reasonably  neces- 
sary; and  as  to  what  is  reasonable,  the  ju- 
dicial authority  will  defer  to  legislative  wis- 
dom in  doubtful  cases;  but  where  the  in- 
terference is  plainly  excessive,  it  is  the  duty 
of  the  court  to  repel  the  encroachment. 
Bonnett  v.  Vallier,  17:  486,  116  N.  W.  885, 
136   Wis.    193. 

•  678.  A  general  police  regulation  down  to 
minute  particulars,  of  the  construction  and 
maintenance  of  tenement  houses,  rendering 
it  impracticable  to  safely  comply  therewith 
in  the  absence  of  any  official  approval  of 
plans  and  specifications  in  advance  and  con- 
taining no  provision  for  such  approval,  is 
unreasonable.  Bonnett  v.  Vallier,  17:  486, 
116  N.  W.  885,  136  Wis.  193.       (Annotated) 

679.  If  the  penal  feature  of  a  police  r^u- 
lation  is  so  severe,  having  regard  to  the 
nature  of  the  regulation,  as  efficiently  to  in- 
timidate property  owners  from  using  their 
property  at  all  for  tenements  or  lodging- 
house  purposes,  and  from  resorting  to  the 
courts  for  redress  or  defense  as  to  their  hon- 
estly supposed  rights,  it  is  highly  unreason- 
able, Bonnett  v.  Vallier,  17:  486,  116  N.  W. 
885,  136  Wis.  193. 

680.  A  law  regarding  the  construction  of 
tenement  houses,  requiring  street  courts  to 
be  6  feet  in  width  between  the  lot  line  and 
the  opposite  wall  of  the  building  under  all 
conditions,  and  in  all  localities  to  be  at 
least  6  feet  wide,  is  an  unreasonable  in- 
terference. Bonnett  v.  Vallier,  17:  486,  116 
N.  W.  885,  136  Wis.  193. 

681.  A  i)olice  regiilation  making  every 
habitation,  regairdless  of  locality,  a  board- 


CONSTITUTIONAL  LAW,  II.  c,  4. 


687 


ing  or  lodging  house  in  case  the  proprietor  I 
allows  a  person  not  a  member  of  his  family 
to  have  a  sleeping  room  in  the  house,  and 
regulates  the  maintena«ee  of  the  house  as 
regards  light,  location  of  beds,  and  equip- 
ment with  water-closets,  is  an  unreasonable 
interference.  Bonnett  v.  Vallier,  17:  486, 
116  N.  W.  885,  136  Wis.  193. 
Horse  racing. 

Equal  protection   and   privileges  as  to,   see 
supra,   246. 

682.  The  police  power  extends  to  the 
regulation  of  horse  racing.  State  Racing 
Commission  v.  Latonia  Agricultural  Asso. 
25:  905,  123  S.   W.  681,  136  Ky.   173. 

( Annotated ) 
Carriers. 
Equal  protection  and  privileges  as  to,  see 

supra,  II.  a,   3,  b. 
Due    process    of   law    as   to    generally,    see 

supra,  437-448. 
Due  process  of  law  as  to  right  of  action  or 

defense,  see  supra,  II.  b,  7,  b,   (1)    (b). 
See  also  infra,   688. 

683.  A  statute  prohibiting  the  issuance, 
acceptance,  and  use  of  free  transportation 
is  a  proper  and  reasonable  exercise  of  the 
police  power  of  the  state.  State  v.  Martyn, 
23:  217,  117  N.  W.  719,  82  Neb.  225. 

684.  A  statute  giving  the  occupant  of  the 
lower  berth  in  a  sleeping  car  control  of  the 
upper  berth  in  case  of  its  not  being  oc- 
cupied, if  justifiable  as  an  exercise  of  the 
police  power,  is  unreasonable  where  such 
control  is  conferred  without  requiring  com- 
pensation to  be  made  therefor.  State  v. 
Redmon,  14:  229,  114  N.  W.  137,  134  Wis.  89. 

685.  An  ordinance  requiring  an  interurban 
railroad  company  to  stop  its  cars  at  any 
street  intersection  where  any  person  may 
desire  to  enter  or  alight  is  not  a  valid 
exercMse  of  the  police  power,  as  such  regu- 
lation is  solely  for  the  convenience  and 
comfort  of  the  public,  without  reference  to 
public  peace,  safety,  or  good  order.  Excel- 
sior v.  Minneapolis  &  St.  P.  S.  R.  Co.  24: 
1035,  122  N.  W.  486,  108  Minn.  409. 

686.  An  absolute  requirement  that  com- 
mon carriers  shall  maintain,  as  to, all  trains 
transporting  any  live  stock  by  railroad  with- 
in the  state,  an  average  minimum  rate  of 
speed  of  not  less  than  20  miles  per  hour 
from  time  of  loading  until  arrival  at  desti- 
nation, deducting  only  such  reasonable  time 
as  is  necessary  for  unloading  to  feed,  wa- 
ter, and  rest  and  reloading,  is  an  unrea- 
sonable exercise  of  the  police  power  of  the 
state.  Downey  v.  Northern  P.  R.  Co.  26: 
IOI7,   125  N.  W.  475,  19  N.  D.  621. 

(Annotated) 
Sunday  laxv. 
Equal  protection  and  privileges  as  to,  see 

supra,  II.  a,  5,  b. 
See   also   supra,   450,   541. 
Due  process  of  law  as  to,  see  supra,  450, 

451. 

687.  In  the  exercise  of  its  police  power,  a 
state  may  prohibit  the  conduct  of  business 
on  Sunday.  State  v.  Dolan,  14:  1259,  92 
Pac.  995,  13  Idaho,  693. 
Digest  1-52  Ii.R.A.(N.S.) 


b.  Particular  occupations  and  business. 

(See   also    same   heading   in  Digest   L.R.A. 
1-10,) 

As  to  regulation  of  manufacture  and  sale, 

see  infra,  II.  c,  4,  d. 
See  also  supra.  111. 

688.  The  state  may,  under  its  police  pow- 
er, forbid  drumming  or  soliciting  business 
or  patronage  for  any  hotel,  boarding  or  bath 
house,  or  medical  practitioner,  on  the  trains 
or  at  the  depots  of  any  common  carrier  in 
the  state,  without  unconstitutionally  re- 
stricting the  liberty  of  citizens,  or  depriv- 
ing owners  of  such  places  of  the  equal  pro- 
tection of  the  laws.  Williams  v.  State,  26: 
482,  108  S.  W.  838,  85  Ark.  464. 

(Annotated) 
Lioan  brokers. 

Equal  protection  and  privileges  as  to,  see 
supra,  257. 

689.  The  state  may,  in  the  exercise  of 
the  police  power,  license  and  regulate  chat- 
tel mortgage  and  salary  loan  brokers.  Ban- 
ning V.  Cincinnati,  25:  686,  90  N.  E,  125,  81 
Ohio  St.  142. 

Real   estate   agents. 

690.  The  police  power  extends  to  requir- 
ing contracts  to  compensate  one  for  procur- 
ing a  purchaser  for  real  estate  to  be  in 
writing.  Selvage  v.  Talbott,  33:  973,  95 
N.  E.  114,  175  Ind.  648.  (Annotated) 
Bakeries. 

691.  The  state  may,  under  its  police  pow- 
er, forbid  the  establishment  or  operation  of 
bakeries  in  a  room  the  floor  of  which  is 
more  than  5  feet  below  the  level  of  the 
surface  of  the  adjacent  ground.  Benz  v. 
Kremer,  26:  842,  125  N.  W.  99,  142  Wis. 
1.  (Annotated) 
Billiard  and  pool  rooms. 

Equal  protection  and  privileges   as  to,   see 

supra,  243. 
Due  process  of  law  as  to,  see  supra,  424. 

692.  The  police  power  of  a  state  justifies 
a  municipal  ordinance  prohibiting  the  keep- 
ing of  billiard  or  pool  tables  for  hire  or 
public  use,  but  permitting  hotel  keepers  to 
maintain  a  billiard  or  pool  room  in  which 
their  regular  and  registered  guests  may 
pay.  Murphy  v.  People,  41:  153,  32  Sup. 
Ct.  Rep.  697,  225  U.  S.  623,  56  L.  ed.  1229. 
Trading  stamp  business. 

693.  An  act  of  the  legislature  which  at- 
tempts to  prohibit  the  business  of  giving 
and  receiving  what  are  commonly  known 
as  trading  stamps  is  an  unreasonable  in- 
terference with  a  lawful  business  not  within 
the  police  power  of  the  legislature,  and  is 
in  conflict  with  §  1  of  the  Bill  of  Rights  and 
the  14th  Amendment  to  the  Federal  Con- 
stitution. State  ex  rel.  Hartigan  v.  Sperry 
&  Hutchinson  Co.  49:  1123,  144  N.  W.  795, 
94  Neb.   786.  (Annotated) 

694.  The  business  of  a  trading  stamp 
company  is  not  a  process  of  advertising  the 
merchants  with  whom  contracts  are  made 
which  will  take  it  out  of  the  operation  of 
the  police  power.  District  of  Columbia  v. 
Kraft,  30:  957,  35  App.  D.  C.  253. 


588 


CONSTITUIIONAL  LAW,  II.  c,  4. 


Dancing   schools;   dance   halls. 

Equal   protection   and   privileges   as   to,   see 

supra,  244,  245. 
Due  process  of  law  as  to,  see  supra,  422. 

695.  A  license  for  police  regulation  can- 
not be  required  for  a  place  where  dancing 
is  taught,  when  it  is  not  required  for  places 
where  dancing  is  indulged  in  where  com- 
pliance with  the  sanitary  Code  will 
render  it  safe  and  sanitary,  and  it  is  im- 
material that  children  are  taught  there  a 
portion  of  the  time.  People  ex  rel.  Duryea 
V.  Wilber,  27:357,  90  N.  E.  1140,  198  N. 
Y.  1.  (Annotated) 

696.  The  legislature  may,  under  its  po- 
lice power,  forbid  the  owner,  keeper,  or 
manager  of  a  "dance  house"  to  permit  per- 
sons under  twenty-one  years  of  age  to  be 
or  remain  therein.  State  v.  Rosenfield,  29: 
331,  126  N.  W.  1068,  111  Minn.  301. 
Insurance. 

Impairment    of     contract    obligations,     see 
infra,  797-800. 

697.  The  police  power  of  the  state  does 
mot  extend  to  reducing  the  compensation  of 
general  agents  of  insurance  companies  under 
existing  contracts.  Boswell  v.  Security  Mut. 
L.  Ins.  Co.  19:  946,  86  N.  E.  532,  193  N.  Y. 
465. 

698.  The  police  power  extends  to  compel- 
ling life  insurance  companies  to  maintain 
uniform  rates  among  the  same  classes  of 
applicants,  although  the  effect  is  to  stifle 
competition  between  different  companies  for 
business.  People  v.  Hartford  L.  Ins.  Co. 
37:  778,  96  N.  E.  1049,  252  111.  398. 

699.  The  police  power  does  not  extend  to 
requiring  insurance  companies  doing  busi- 
ness in  cities  to  pay  a  portion  of  their  earn- 
ings to  a  flremen's  relief  association  for  the 
benefit  of  disabled  firemen  and  their  fami- 
lies, ^tna  F.  Ins.  Co.  v.  Jones,  13:  1147,  59 
S.  E.  148,  78  S.  C.  445  lAnnotated) 
Banking. 

Equal  protection  and  privileges  as  to,  see 

supra,  280-283. 
Due  process  of  law  as  to,  see  supra,  435, 

436. 

700.  The  business  of  banking  is  so  inti- 
mately related  to  the  public  welfare  that 
it  properly  falls  within  the  scope  of  the 
police  power  of  the  state,  exercisable  by 
the  legislature.  Schaake  v.  Dolley,  37:  877, 
118  Pac.  80,  85  Kan.  598. 

701.  The  police  power  of  a  state  extends 
to  the  regulation  of  the  banking  business, 
and  even  to  its  prohibition,  except  on  such 
conditions  as  the  state  may  prescribe. 
Noble  State  Bank  v.  Haskell,  32:  1062,  31 
Sup.  Ct.  Rep.  186,  219  U.  S.  104,  55  L. 
ed.   112.    • 

702.  Tlie  levy  and  collection,  under  a  state 
statute,  from  every  bank  existing  under  the 
state  laws,  of  an  assessment  based  upon 
average  daily  deposits,  for  the  purpose  of 
creating  a  depositors'  guaranty  fund  to  se- 
cure the  full  repayment  of  deposits  in  case 
any  such  bank  becomes  insolvent,  is  a  valid 
exercise  of  the  police  power,  and  cannot 
be  regarded  as  depriving  a  solvent  bank 
of  its  liberty  or  property  without  due  pro- 
cess of  law.'  Noble  State  Bank  v.  Haskell, 
Digest   1-52   L.R,A.(N.S.) 


32:  1062,   31   Sup.   Ct.   Rep.   186,  219  U.  S.' 

104,   55  L.  ed.    112. 

Itinerant  or  transient  dealers. 

Equal   protection   and   privileges  aa  to,  see 

supra,  260,  261. 
Due  process  as  to,  see  supra,  513. 

703.  Merely  requiring  itinerant  venders 
of  patent  or  proprietary  medicines  to  se- 
cure a  license  before  engaging  in  business 
does  not  tend  to  promote  the  public  health, 
morals,  or  safety,  and  therefore  cannot  be 
upheld  as  a  police  measure.  People,  Use  of 
State  Bd.  of  Health  v.  Wilson,  35:  1074,  94 
N.  E.  141,  249  111.  195. 

704.  The  imposition  of  a  license  fee  of 
$100  per  month  upon  transient  merchants 
who  purport  to  sell  bankrupt  or  damaged 
stocks  cannot  be  upheld  as  an  exercise  of 
the  police  power  to  prevent  fraud,  in  limi- 
tation of  the  constitutional  property  rights 
of  the  merchants.  People  ex  rel.  Moskowitz 
v.  Jenkins,  35:  1079,  94  N.  E,  1065,  202  N. 
Y.  53.  (Annotated) 
Employment  agency. 

705.  A  municipal  corporation  cannot,  un- 
der its  police  power,  single  out  employment 
agencies,  and  make  them  liable  to  punish- 
ment for  wilfully  deceiving  or  making  wilful 
misrepresentations  to  persons  seeking  em- 
ployment through  them  from  whom  they 
take  a  fee.  Spokane  v.  Macho,  21:  263,  98 
Pac.  755,  51  Wash.  322.  (Annotated) 

706.  Requiring  the  procurement  of  a  li- 
cense to  conduct  an  employment  agency,  is 
within  the  police  power,  and  constitutes  no 
deprivation  of  a  constitutional  right  to  car- 
ry on  business.  People  ex  rel.  Armstrong 
V.  Warden  of  New  York  City  Prison,  2:  859, 
76  N.  E.  11,  183  N.  Y.  223.  (Annotated) 

I  Physicians. 
Equal  protection  and  privileges  as  to,  see 

supra,  279. 
Due  process  of   law  as  to,  see  supra,  432. 

707.  The  state,  in  the  exercise  of  its 
police  power,  in  the  interests  of  the  health, 
good  government,  general  welfare,  and 
morals  of  the  people,  may  prescribe  the 
qualifications  of  persons  desiring  to  prac- 
tise medicine,  and  may  create  a  board 
whose  duty  it  shall  be  to  hear  and  deter- 
mine any  complaint  made  against  any  per- 
son holding  a  physician's  license,  and  re- 
voke such  license  for  any  cause  provided  for 
in  the  statute.  Meffert  v.  Packer,  1:811, 
72  Pac.  247,  66  Kan.  710,  affirmed  in  25 
Sup.  Ct.  Rep.  790,  195  U.  S.  625,  49  L.  ed. 
350.  (Annotated) 

708.  A  statute  requiring  a  license  as  a 
condition  to  treating  the  sick  has  sufficient 
relation  to  the  protection  of  the  public 
health  to  be  within  the  police  power  of  the 
legislature,  which  cannot  be  controlled  by 
the  courts,  and  is  not  so  unreasonable  or 
capricious  that  it  can  be  declared  not  to 
be  an  honest  exercise  of  such  power,  al- 
though it  may  interfere  with  the  right  of 
the  patient  to  choose  his  own  method  of 
treatment,  and  of  the  practitioner  to  pursue 
a  callii>g  of  his  choice.  State  v.  Smith,  33: 
179,  135  S.  W.  465.  233  Mo.  242. 

709.  The  police  power  extends  to  the 
creation   of  a  board  of   medical  examiners 


CONSTITUTIONAL  LAW,  II.  c,  4. 


589 


whose  license  one  must  secure  before  prac- 
tising medicine,  and  to  the  definition  of 
the  practice  of  medicine.  Smith  v.  Peo- 
ple, 36:  158,  117  Pac.  612,  51  Colo.  270. 

710.  Forbidding  physicians  to  advertise 
special  ability  to  treat  or  cure  chronic  or 
incurable  diseases  is  within  the  police 
power.  State  Medical  Board  v.  McOrary, 
30:  783,   130   S.   W,   544,   95   Ark.    511. 

(Annotated) 

711.  The  state  may,  under  its  police  pow- 
er,  prohibit    physicians    from    soliciting   pa- 
tients by   paid   age-ts.     Thompson    v.   Van 
Lear,  5:  588,  92  S.  W.  773,  77  Ark.  506. 
Druggists. 

Due   process  of  law  as  to,   see  supra,   503. 

712.  The  legislature  may  properly,  in  the 
exercise  of  the  police  power  «iiact  a  stat- 
ute creating  a  state  board  of  pharmacy,  pro- 
scribing its  duties,  and  providing  for  the  li- 
censing of  pharmacists,  and  imposing  fees 
for  the  issuance  and  renewal  of  licenses. 
State  V.  Hovorka,  8:  1272,  110  N.  W.  870, 
iOO  Minn.  249. 

713.  Restricting  the  sale  of  domestic  rem- 
edies or  perfectly  harmless  medicinal  prep- 
arations to  licensed  pharmacists  is  with- 
in the  police  power  of  the  state,  and  does 
not  infringe  the  constitutional  rights  of  the 
citizens.  State  Bd.  of  Pharmacy  v.  Mat- 
thews, 26:  1013,  90  N.  E.  966,  197  N.  Y.  353. 
Undertakers. 

Due  process  as  to,  see  supra,  426-428. 

714.  The  state  may,  under  its  police  pow- 
er, require  undertakers  to  secure  licenses 
before  they  engage  in  the  practice  of  their 
profession.  People  v.  Ringe,  27:  528,  90  N, 
E.  451,  197  N.  Y.  143.' 

715.  The  police  power  does  not  justify 
the  adoption  of  a  rule  requiring  a  knowl- 
edge of  embalming  as  a  condition  to  receiv- 
ing a  license  as  imdertaker,  by  a  board  of 
registration  in  embalming  which  has  power 
to  adopt  rules  governing  the  care  and  dis- 
position of  human  dead  bodies  and  the  busi- 
ness of  embalming.  Wyeth  v.  Thomas, 
23:  147,    86   N.   E.    925,   200   Mass.   474. 

(Annotated) 

716.  Service  in  and  knowledge  of  the  busi- 
ness of  embalming  cannot  be  required  un- 
der the  police  power  as  a  qualification  for 
engaging  in  the  business  of  undertaking. 
State  V.  Rice,  36:  344,  80  Atl.  1026,  115  Md. 
317. 

c.  Matters  betiveen  master  and  servant, 

(See   also    same   heading   in  Digest   L.R.A. 
1-10.) 

Equal  protection   and   privileges  as  to,   see 

supra,  11.  a,  5,  c. 
Due  process  of  law  as  to,  see  supra,  II.  b, 

4,  b,  2. 
See  also  supra,  440. 

717.  An  ordinance  requiring  street  car 
companies  to  provide  stools  for  motormen  is 
within  the  police  power,  and  not  unreason- 
able. Silva  V.  Newport,  42:  1060,  150  S.  \Y. 
1024,  150  Ky.  781.  (Annotated^ 

718.  The  legislature  may,  under  its  police 
Digest  1-52  I<.R.A.(N.S.) 


power,  fix  an  age  limit  below  which  boys 
may  not  be  employed  to  labor.  Lenahan  v. 
Pittston  Coal  Min.  Co.  12:  461,  67  Atl.  642,. 
218  Pa.  311. 

719.  Requiring  mine  owners  to  keep  at 
the  mine  bandages,  oil,  stretchers,  and  blank- 
ets for  use  of  injured  employees  is  within, 
the  police  power,  and  does  not  infringe  the 
constitutional  rights  of  the  owner.  Wolf 
V.  Smith,  g:  338,  42  So.  824,  149  Ala.  457. 
Hours  of  labor. 

Equal  protection  and  privileges  as  to,  see 
supra,  301-311. 

Due  process  of  law  as  to,  see  supra,  477- 
485. 

Impairment  of  contract  obligations,  see  in- 
fra, 781. 

State  statute  regulating,  as  interference 
with  interstate  commerce,  see  Com- 
merce,  497.  : 

Judicial  notice  as  to  expediency  of,  see  Evi- 
dence,  30. 

720.  The  legislature  may,  under  its  po- 
lice power,  forbid  a  railroad  company  to 
keep  employees  who  despatch  or  space 
trains  by  telephone  or  telegraph,  on  duty 
more  than  eight  hours  in  each  twenty-four. 
People  V.  Erie  R.  Co.  29:  240,  91  N.  E.  849,. 
198  N.  Y.  369. 

Employer's    liability. 

Equal  protection  and  privileges  as  to,  see 
supra,  316-329.  \ 

Denial  of  due  process  or  interference  witb 
freedom  of  contract  as  to,  see  supra,. 
467-473.  ;. 

Impairment  of  contract  obligations  by  stat- 
ute as  to,  see  infra,  780. 

721.  A  factory  act  giving  a  right  of  ac- 
tion for  injuries  or  death  to  servants, 
when  the  absence  of  any  of  the  safe- 
guards provided  by  the  act  sliall  have  di- 
rectly contributed,  notwithstanding  contrib- 
utory negligence  on  the  part  of  the  serv- 
ants, is  within  the  police  power  of  the 
state,  and  constitutional.  Caspar  v.  Lewin,. 
49:  526,  109  Pac.  657,  82  Kan.  604.  ; 

722.  A  statute  which  provides  that  an  em- 
ployer of  five  or  more  workmen  may  pay  a 
certain  premium  into  a  state  insurance  fund 
and,  upon  posting  nptices  to  this  effect  in 
his  place  of  business,  thereby  be  relieved 
from  liability  for  injuries  to  his  employees 
except  in  cases  of  wilful  or  statutory  negli- 
gence, and  provides  further  that  in  case  of 
his  failure  to  accept  the  benefit  of  such  act 
he  shall  be  liable  to  his  employees  for  in- 
juries resulting  from  negligence,  and  in 
such  action  the  defenses  of  assumption  of 
risk,  contributory  negligence,  and  fellow- 
servant  rule  shall  not  be  available  to  him, 
is  a  valid  and  constitutional  enactment 
authorized  under  the  police  power  of  a 
state.  State  ex  rel.  Yaple  v.  Creamer, 
39:  694,  97  N.  E.  602,  85  Ohio  St.  349. 

723.  The  police  power  of  the  state  extends 
to  forbidding  railroad  companies  which  have 
been  made  liable  for  injury  to  employees 
through  the  negligence  of  fellow  servants, 
from  contracting  with  them  for  a  relief  or 
indemnity  plan  which  will  relieve  the  rail- 
road company  from  a  portion  of  the  burden.' 


690 


CONSTITUTIONAL  LAW,  II.  c,  4. 


cast  upon  it  by  the  statute.  McGuire  v. 
Chicago,  B.  &  Q.  R.  Co.  33:  706,  108  N.  W. 
902,  131  Iowa,  340.  (Annotated) 

Clearance   card. 

724.  The  duty  imposed  upon  an  employer 
by  a  statute  requiring  him,  upon  the  request 
of  a  discharged  employee,  to  furnish  a  writ- 
ten statement  as  to  the  true  cause  for  the 
discharge,  is  not  a  police  regulation,  and  is 
an  interference  with  the  personal  liberty 
guaranteed  to  every  citizen  by  the  state  and 
Federal  Constitutions.  Atchison,  T.  &  S. 
F.  R.  Co.  V,  Brown,  23:  247,  102  Pac.  459, 
80  Kan.  312. 

d.  Regulation  of  manufacture  and 
sales. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Due  process  as.  to,  see  supra,  II.  b,  4,  d. 

Discrimination  in  prices. 

725.  The  prevention  of  discrimination  in 
particular  localities,  in  the  price  of  com- 
modities in  general  use,  for  the  purpose  of 
destroying  the  business  of  a  competitor  by 
selling  such  commodities  at  a  lower  rate  in 
such  locality  than  is  charged  for  the  same 
elsewhere,  is  within  the  police  power  of  the 
state.  State  v.  Drayton,  23:  1287,  117  N. 
W.  768,  82  Neb.  254. 

726.  The  police  power  extends  to  forbid- 
ding discrimination  in  prices  in  different 
sections  of  the  state,  for  the  purpose  of 
driving  competitors  out  of  business.  State 
V.  Central  Lumber  Co.  42:  804,  123  N.  W. 
504,  24  S.  D.  136.  (Annotated) 
Sale  of  nursery  stock. 

As  to  equal  protection  and  privileges,  see 

supra,  200. 
Due  process  of  law,  as  to,  see  supra,  514. 

727.  A  statute  granting  a  board  of  agri- 
culture unlimited  discretion  to  refuse  per- 
mits for  the  sale  of  nursery  stock  within 
the  state,  on  the  ground  of  the  applicant's 
want  of  integrity  or  financial  responsibil- 
ity, is  not  a  valid  exercise  of  the  police 
power.  State  ex  rel.  Hawley  v.  Nelson, 
15:  138,  115  N.  W.  93,* 22  S.  D.  23. 
Linseed  oil. 

728.  The  state  may  under  its  police  power 
prohibit  the  sale  of  linseed  oil  which  does 
not  answer  the  test  for  purity  recognized 
by  the  United  States  Pharmacopoeia.  Amer- 
ican Linseed  Oil  Co.  v.  Wheaton,  41:  149, 
125  N.  W.  127,  25  S.  D.  60.  (Annotated) 
Food. 

Equal  protection  and  privileges  as  to,  see 
supra,  247,  248,  258.  259. 

Due  process  as  to,  see  supra,  500,  501. 

Prohibiting  keeping  for  shipment  out  of 
state  of  unwholesome  meat,  see  Com- 
merce, 109,  110. 

729.  A  statute  prohibiting  the  manufac- 
ture or  sale  of  oleomargarin  of  any  shade 
or  tint  of  yellow,  although  such  shade  is 
produced  by  natural  and  essential  ingred- 
ients which  are  not  deleterious  or  injurious 
to  health,  is  .  invalid  as  an  exercise  of  the 
police  power  and  therefore  unconstitution- 
Sigest  1-52  I..R.A.(N.S.) 


al.   State  v.  Hanson,  40:  865,  136  N.  W.  412, 
118  -Minn.  8-5. 

730.  A  pure  food  statute  which  has  the 
effect  to  prohibit  the  mixture  of  distilled 
vinegar  and  sugar  vinegar,  both  of  which 
are  wholesome  articles  of  food,  in  such  pro- 
portions as  to  obtain  a  color  similar  to  that 
of  cider  vinegar,  is  not  so  unreasonable  as 
to  constitute  an  improper  exercise  of  the 
police  power.  People  v.  William  Henning 
Co.  49:  1206,  103  N.  E.  530,  260  111.  5.54. 

(Annotated) 

731.  The  fact  that  selling  milk  is  a  law- 
ful trade  or  business  does  not  exempt  it 
from  reasonable  police  regulations.  St. 
Louis  V.  Grafeman  Dairy  Co.  i :  936,  89  S. 
W.  617,  190  Mo.  492. 

732.  Requiring  milk  dealers  to  register 
with  the  health  commissioner  and  pay  a 
registration  fee  is  a  valid  police  regulation. 
St.  Louis  V.  Grafeman  Dairy  Co.  i:  936,  89 
S.  W.  617,  190  Mo.  492.  (Annotated) 

733.  Seizure  of  necessary  milk  for  in- 
spection without  a  warrant  may  be  author- 
ized under  the  police  power.  St.  Louis  v. 
Liessing,  i:  918,  89  S.  W.  611,  190  Mo.  464. 

734.  The  police  power  of  the  state  ex- 
tends to  the  prohibition  of  the  sale  of  milk 
from  cows  fed  by  still  slop,  although  there 
is  nothing  to  show  that  such  milk  is  not  a 
pure  and  wholesome  article  of  food,  since 
the  court  may  assume  that  the  legislature 
had  sufficient  information  to  justify  the  be- 
lief that  milk  from  cows  fed  on  such  food 
had  ample  opportunity  to  become  impreg- 
nated with  elements  dangerous  to  public 
health.  Sanders  v.  Com.  i;  932,  77  S.  W. 
358,  117  Ky.  1.  '  (Annotated) 

735.  The  police  power  extends  to  the  pro- 
hibition of  the  sale  of  milk  containing  any 
preservative,  although  there  may  be  pre- 
servatives which  are  not  deleterious  to 
health.  St.  Louis  v.  Schuler,  i :  928,  89  S. 
W^  621,  190  Mo.  524.  (Annotated) 

736.  A  municipal  corporation  may,  in  the 
exercise  of  its  police  power,  prescribe  as 
a  test  of  the  purity  and  wholesomeness  of 
milk  brought  into  the  city  for  sale  that  it 
be  drawn  from  cows  previously  subjected 
to  the  tuberculin  test  and  found  free  from 
disease.  Nelson  v.  Minneapolis,  29:  260, 
127  N.  W.  445,  112  Minn.  16. 

737.  A  statute  providing  that  no  milk 
shall  be  received,  held,  kept,  offered  for  sale, 
or  delivered  in  a  certain  city  without  a  per- 
mit, in  writing,  from  the  board  of  health, 
and  subject  to  the  conditions  thereof,  is  a 
reasonable  and  a  valid  exercise  of  the  police 
power,  and  violative  of  no  provision  of  the 
Constitution,  either  state  or  Federal.  Peo- 
ple ex  rel.  Lodes  v.  Health  Department,  13: 
894,  82  N.  E.  187,  189  N.  Y.  187. 

738.  Imposing  a  penalty  on  a  milk  dealer 
for  having  in  possession,  with  intent  to 
use  them,  any  bottle  or  jar  of  less  capacity 
than  is  marked  on  it,  is  a  valid  exercise  of 
the  police  power,  and  does  not  unconstitu- 
tionally deprive  him  of  his  property  rights. 
Chicago  V.  Bowman  Dairy  Co.  17:  684,  84  N. 
E.  913.  234  111.  2»4. 


CONSTITUTIONAL  LAW,  II.  c,  5. 


691 


Intoxicating    liquors;    soft    drinks. 

Equal   protection   a,ii(l  privileges   aa  to,   see 

supra,  202a,  265-277. 
Due  process  of  law  as  to,  see  supra,  508- 

512. 
Regulations  as  to  liquors  not  affecting  sale 

thereof,  see  supra,  645,  646. 
Police    regulation    of    intoxicating    liqviors 

generally,    see   Intoxicating    Liquors, 

I. 

739.  The  power  to  prohibit  the  sale  of  in- 
toxicating liquors  in  the  interest  of  the  pub- 
lic safety,  welfare,  good  order,  and  happi- 
ness of  the  people  during  certain  prescribed 
periods  by  the  proper  legislative  body  is 
no  longer  an  open  question.  State  v.  Callo- 
way, 4:  109,  84  Pac.  27,  11  Idaho,  719. 

740.  The  control  of  the  liquor  business  is 
within  the  police  power  of  the  state,  and 
restrictions  which  might  lawfully  be  im- 
posed upon  it  might  be  obnoxious  as  an 
illegal  restraint  of  trade  when  applied  to 
other  pursuits  or  avocations.  State  v. 
Calloway,  4:  109,  84  Pac.  27,  11  Idaho,  719. 

741.  Tlie  police  power  does  not  extend  to 
the  prohibition  of  the  sale  of  harmless  soft 
drinks,  even  though,  under  the  guise  of  sell- 
ing such  drinks,  some  persons  may  attempt 
to  sell  those  which  are  intoxicating.  Tol- 
liver  V.  Blizzard,  34:  890,  137  S.  W.  509, 
143  Ky.  773.  (Annotated) 

742.  The  legislature,  when  making  a  gen- 
eral restraint  upon  the  traffic  in  intoxicat- 
ing liquors,  may,  under  its  constitutional 
power  to  regulate  the  manufacture  and  sale 
of  such  liquor,  and  its  police  power,  pro- 
vide for  the  manufacture  of  nonintoxicating 
malt  beverages  containing  alcohol,  and  re- 
quire them  to  be  sold  by  the  manufacturer 
in  specified  receptacles  and  quantities  di- 
rectly to  the  consumer,  who  shall  not  be  al- 
lowed to  drink  them  on  the  premises  where 
sold,  without  infringing  the  rights  of  liber- 
ty or  property  of  persons  desiring  to  deal 
in  such  beverages.  Com.  v.  Henry,  26:  883, 
65  S.  E.  570,  110  Va.  879. 

743.  Prohibiting  the  sale  of  a  nonintoxi- 
cating malt  liquor  which  retains  the  alco- 
holic principle  as  a  distinctive  force,  and 
which  is  sold  and  used  as  a  substitute  for 
beer,  is  a  legitimate  exercise  of  the  police 
power,  and  does  not  violate  the  constitution- 
al rights  of  the  owner.  State  v.  Fargo  Bot- 
tling Works  Co.  26:  872,  124  N.  W.  387, 
19  N.  D.  396.  (Annotated) 
Tickets. 

Equal  protection  and  privileges  as  to,  see 
supra,  218,  219. 

Due  process  as  to,  see  supra,  504-507. 

Impairment  of  contract  obligations  by  stat- 
ute as  to,  see  infra,  792. 

744.  The  legislature  may  lawfully  pro- 
hibit the  transaction  of  railroad-ticket  brok- 
erage business  for  the  protection  of  travel- 
ers from  fraud.  State  v.  Thompson,  4:  480, 
84  Pac.  476,  47  Or.  492.  (Annotated) 

745.  The  prohibition  of  a  resale  of  tickets 
to  places  of  public  amusement  at  an  ad- 
vance over  the  original  price  paid  for  them 
is  not  within  the  police  power  of  the  state, 
since  such  sale  is  not  immoral  or  injurious  to 
Digest  1-52  Ii.R.A.(N.S.) 


public  welfare.     Ex  parte  Quarg,  5:  183,  84 
Pac.    766,    149   Cal.   79.  (Annotated) 

746.  Forbidding  the  sale  of  theater  tickets 
at  an  advance  over  the  price  at  the  box 
office,  and  prohibiting  the  establishment  of 
agencies  for  such  sale,  are  not  within  the 
police  power  of  the  state.  People  v.  Steele, 
14:  361,  83  N.  E.  236,  231  111.  340. 

Sales   in  bulk. 

Equal  protection   and  privileges  as  to,   see 

supra,  249,  250. 
Due  process  of  law  in  regulating,  see  supra, 

530,  531. 

747.  A  "bulk  sales  law"  which  provides 
that  a  transfer  of  a  stock  of  goods,  or  a 
portion  thereof,  otherwise  than  in  the  ordi- 
nary course  of  trade,  shall  be  presumed 
fraudulent  and  void,  unless  the  transferee 
can  show  that  previous  thereto  he  obtained 
from  the  transferrer  a  sworn  statement  of 
his  creditors,  and  notified  each  of  such 
creditors  of  whom  he  had  knowledge  or 
could,  in  the  exercise  of  reasonable  dili- 
gence, have  obtained  knowledge,  of  the  in- 
tended transfer,  and  that  such  purchase  wag 
made  by  him  in  good  faith  and  for  a  fair 
consideration  actually  paid,  is  a  valid  exer- 
cise of  the  police  power,  and  is  not  violative 
of  the  due  process  clause  nor  the  equal  pro- 
tection clause  of  the  14th  Amendment  of 
the  Federal  Constitution,  nor  does  it  violate 
any  of  the  provisions  of  the  state  Consti- 
tution. Noble  V.  Ft.  Smith  Wholesale 
Grocery  Co.  46:  455,  127  Pac.  14,  34  Okla. 
662. 

748.  Requiring  a  retail  merchant  to  file 
notice  of  intention  to  sell  the  whole  or  a 
large  part  of  his  stock  seven  days  prior  to 
the  sale,  under  penalty  of  the  sale  being 
voidable  at  the  instance  of  creditors,  is 
within  the  police  power  of  the  state.  iToung 
V.  Lemieux,  20:  160,  65  Atl.  436,  79  Conn. 
434.  (Annotated) 

S.  As  to  vices;  crimes. 

(See   also   same   heading   in  Digest  L.R.A. 
1-10.) 

Equal  protection  and  privileges  aa  to,  see 

supra,  II.  a,  8. 
Due  process  of  law  as  to,  see  supra,  II.  b,  8. 
See  also  supra,  641,  696. 

749.  A  statute  authorizing  seizure  and 
forfeiture  of  personal  property  used,  with 
the  knowledge  of  the  owner,  in  connection 
with  the  maintenance  of  a  bawdyhouse,  is 
not  invalid  as  constituting  an  unreasonable 
exercise  of  the  police  power  with  respect  to 
personal  property  used  in  the  maintenance 
of  such  a  house.  State  ex  rel.  Robertson  v. 
Lane,  52:  932,  147  N.  W.  951,  126  Minn.  78. 

750.  The  state  may,  under  its  police  pow- 
er, upon  the  testimony  received  at  the  trial, 
summarily  deprive  one  acquitted  of  mur- 
der because  of  insanity,  of  his  liberty,  for 
the  protection  of  the  public,  while  his  insan- 
ity and  dangerous  proclivities  continue. 
(Per  Rich,  J.)  People  ex  reL  Peabody  v. 
Chanler,  25:  946,  89  N.  E.  1109,  196  N.  Y. 
525. 


592 


CONSTITUTIONAL  LAW,   II.   d. 


d.  Freedom  of  speech,  press,  and 
ICO  r  ship. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Refusal  of  injunction  to  restrain  publica- 
tion of  boycotting  circular  by  labor 
organization,  see  Ixjunction,  156. 

Partial  invalidity  of  statute  invading  right 
of  free  speech,  see  Statutes,  70,  71. 

751.  The  "freedom  of  the  press"  consists 
in  a  right,  in  the  conductor  of  a  newspaper, 
to  print  what  he  chooses,  without  previous 
license,  but  subject  to  be  held  responsible 
therefor  as  anyone  else  for  a  similar  publi- 
cation. Levert  v.  Daily  States  Pub.  Co. 
23:  726,  49  So.  206,  123  La.  594. 

752.  Freedom  of  speech  or  of  the  press 
does  not  include  the  right  to  publisl^  what 
purports  to  be  a  signed  petition,  as  express- 
ing the  sentiment,  not  of  the  publishers,  but 
of  the  signers,  after  the  signers  have  dis- 
owned and  repudiated  it,  as  having  been 
signed  under  a  misapprehension.  Schwartz 
v.  Edrington,  47:  921,  62  So.  660,  133  La. 
235. 

753.  The  provision  of  Minn.  Const,  art. 
1,  §  3,  that  the  liberty  of  the  press  shall 
forever  remain  inviolate,  is  not  infringed  by 
an  act  forbidding,  in  the  interest  of  pub- 
lic morals,  the  publication  of  the  details  of 
criminal  executions.  State  v.  Pioneer  Press 
Co.  9:  480,  110  N.  W.  867,  100  Minn.  173. 

754.  No  unconstitutional  interference  with 
freedom  of  speech  is  effected  by  enjoining 
the  placing  by  a  labor  union  of  the  name 
of  a  concern  on  its  "We  Don't  Patronize" 
list,  in  furtherance  of  a  boycott  against  it. 
American  Federation  of  Labor  v.  Buck's 
Stove  &  Range  Co.  32:  748,  33  App.  D.  C. 
83. 

755.  No  vmconstitutional  interference  with 
liberty  or  freedom  of  speech  is  effected  by 
forbidding  the  placing  of  scurrilous  matter 
on  packages  placed  in  the  mail.  Warren 
V.  United  States,  33:  800,  183  Fed.  718,  106 
C.  C.  A.  156. 

756.  A  statute  requiring  a  report  of  a 
civic  league  upon  a  candidate  for  public  of- 
fice to  state  in  full  all  the  facts  on  which  it 
is  founded,  together  with  the  names  and  ad- 
dresses of  the  persons  furnishing  it,  violates 
a  constitutional  guaranty  of  freedom  of 
speech.  Re  Harrison,  16:  950,  110  S.  W.  709, 
212  Mo.  88. 

757.  A  statute  declaring  that  candidates 
for  judicial  and  educational  offices  shall  not 
be  nominated,  indorsed,  recommended,  criti- 
cised, or  referred  to  in  any  manner  by  any 
political  party,  convention,  or  primary,  vio- 
lates a  constitutional  provision  declaring 
that  every  person  may  freely  speak,  write, 
and  publish  on  all  subjects,  being  responsi- 
ble for  the  abuse  of  that  liberty.  State  ex 
rel.  Rj;gan  v.  Junkin,  23:  839,  122  N.  W. 
473.  85  Neb.  1. 

758.  A  statute  which  requires  an  employ- 1 
er   of  labor,   upon   request   of  a   discharged 
Digest  1-52  Ii.R.A.(N.S.) 


employee,  to  furnish  in  writing  the  true 
cause  or  reason  for  such  discharge,  is  re- 
pugnant to  the  provision  as  to  free  speech 
in  the  Bill  of  Rights,  and  is  invalid.  At- 
chison, T.  &  S.  F.  R.  Co.  v.  Brown.  23:  247, 
102  Pac.  459,  80  Kan.  312. 
Religions  freedom. 

Reading  from  Bible  in  school,  generally,  see 
Schools,  64,  65. 

759.  Holding  Sunday  school  or  religious 
meetings  in  a  country  schoolhouse  not  to 
exceed  four  times  a  year,  in  such  a  manner 
as  not  to  interfere  with  the  school  work, 
does  not  constitute  the  schoolhouse  a  place 
of  worship,  within  the  meaning  of  §  4, 
art.  1,  of  the  Nebraska  Constitution,  pro- 
viding that  all  persons  have  a  natural  and 
indefeasible  right  to  worship  God  accord- 
ing to  the  dictates  of  their  own  conscience; 
and  that  no  person  shall  be  compelled  to 
attend,  erect,  or  support  any  place  of  wor- 
ship against  his  consent;  and  no  prefer- 
ence shall  be  given,  by  law,  to  any  religious 
society;  nor  shall  there  be  any  inter- 
ference with  the  rights  of  conscience.  State 
ex  rel.  Gilbert  v.  Dilley,  50:  1182,  145  N. 
W.  999,  95  Neb.  527. 

760.  A  public  school  is  not  converted  into 
a  place  of  worship,  which  the  Constitution 
protects  everyone  from  being  compelled  to 
attend  or  support,  by  opening  its  exercises 
by  reading  from  the  Bible,  singing  songs, 
and  repeating  the  Lord's  Prayer.  Church  v. 
Bullock,  16:  C60,  109  S.  W.  115,  104  Tex.  1. 

761.  Requiring  school  children  to  listen 
to  the  reading  of  passages  of  the  King 
James'  version  of  the  Bible,  and  join  in 
repeating  the  Lord's  Prayer,  and  in  singing 
hymns,  violates  their  constitutional  right 
to  the  free  exercise  and  enjoyment  of  re- 
ligious profession  and  worship.  People  ex 
rel.  Ring  v.  Board  of  Education,  29:  442, 
92  N.  E.  251,  245  111.  334.   ' 

762.  That  the  casting  and  reading  of  horo- 
scopes is  a  part  of  the  religious  belief  of 
members  of  the  astrological  society  does 
not  prevent  the  legislature  from  forbidding 
such  practice.  State  v.  Neitzel,  43:  203,  125 
Pac.  939,  69   Wash.  567. 

763.  Prohibiting  one  from  curing  the  sick 
for  hire  by  means  of  prayer  does  not  de- 
prive him  of  the  constitutional  right  of  the 
free  exercise  and  enjoyment  of  religious 
profession  and  worship,  Smith  v.  People, 
36:  158,  117   Pac.   612,   51   Colo.   270. 

764.  Prohibition  of  labor  on  Sunday  does 
not  violate  the  constitutional  right  to  re- 
ligious freedom,  where  the  Constitution  pro- 
vides that  liberty  of  conscience  shall  not  be 
construed  to  justify  practices  inconsistent 
with  the  peace  and  safety  of  the  state. 
State  ex  rel.  Temple  v.  Barnes,  37:  114,  132 
N.  W.  215,  22  N.  D.  18. 

765.  The  constitutional  right  to  religious 
liberty  is  not  infringed  by  requiring  a 
certificate  of  freedom  from  venereal  disease 
as  a  condition  of  marriage.  Petersen  v. 
Widule,  52:  778,  147  N.  W.  966,  157  Wis. 
641. 


CONSTITUTIONAL  LAW,  11.  e— g,  1. 


593 


e.   Natural  rights;   implied  guaranties. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 
f.  Guaranties  of  justice. 

(See   also    same   heading   in   Digest   L.R.A. 

1-70.) 

As  to  guaranty  of  right  to  life,  liberty,  and 
property  and  due  process  of  law,  see 
supra,  II.  b. 

g.  Impairing  ohlinrjtion  of  contracts. 

1.  As  to  suhject-matter. 

a.  Jn  general;  by  statutes  or  ordinances. 


(1)    Generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

As  to  retrospective  laws  and  curative  acts, 
see  supra,  I.  b,  2. 

As  to  vested  rights,  see  supra,  I.  c. 

By  change  of  by-laws  of  benevolent  societies, 
'  see  Benevolent  Societies,  11;  Insur- 
ance, 112. 

Federal  court  following  state  decision  as  to 
whether  repeal  of  ordinance  impairs 
contract  rights,  see  Coubts,  321. 

766.  The  constitutional  prohibition  of  the 
impairment  of  contracts  does  not  extend  to 
subjects  affecting  the  health,  safety,  and 
general  welfare  of  the  public.  Grand 
Trunk  W.  R.  Co.  v.  South  Bend,  36:  850, 
89  N.  E.  885,  91  N.  E.  809,  174  Ind.  203. 

767.  A  law  does  not  impair  the  obligation 
of  a  contract,  within  the  meaning  of  the 
Constitution,  if  neither  party  is  relieved 
thereby  from  performing  anything  of  that 
which  he  obligated  himself  to  do ;  but,  if 
either  party  is  absolved  from  performance, 
such  obligation  is  impaired,  whether  affect- 
ed directly  or  indirectly,  and  only  as  a  re- 
sult of  some  modification  of  the  legal  pro- 
ceedings for  enforcement.  State  ex  rel. 
National  Bond  &  S.  Co.  v.  Krahmer,  21:157, 
117  N.  W.  780,  105  Minn.  422. 

768.  An  unconstitutional  impairment  of 
a  contract  is  not  effected  by  the  statutory 
prohibition  of  the  further  performance  of 
a  contract  which  is  so  injurious  to  the 
rights  and  interests  of  the  citizens  gener- 
ally as  to  justify  an  exercise  of  the  police 
power.  State  v.  Missouri,  K.  &  T.  R.  Co. 
5:  783,  91  S.  W.  214,  99  Tex.  516. 

7<>9.  A  statute  nullifying  a  contract  for 
the  construction  of  a  building  for  the  stati 
does  not  unconstitutionally  impair  the  obli- 
gation of  a  contract.  Caldwell  v.  Donaghcy, 
45:  721,  156  S.  W.  839,  108  Ark.  60. 

(Annotated) 

770.  A  constitutional  provision  forbidding 
laws  impairing  the  obligations  of  contracts 
does  not  prevent  the  legislature  from  re- 
leasing the  liability  of  a  county  treasurer 
upon  his  bond  for  loss  of  public  funds 
Digest  1-52  Ii.R.A.(N.S.)  38 


through  the  failure  of  a  bank  in  which  they 
were  deposited,  at  least  wliere  the  bond  runs 
to  the  state,  and  not  to  the  countv.  Miller 
v.  Henry,  41 :  97,  124  Pac.  197,  62  Or.  4. 

( Annotated ) 

771.  One  who,  under  authority  of  the 
legislature,  which  reserves  no  power  of  re- 
peal, constructs  a  dam  for  the  improvement 
of  the  navigation  of  a  stream  in  order  to 
secure  the  power  to  be  developed  by  the 
dam,  has  a  contract  right  which  is  not  sub- 
ject to  repeal.  State  ex  rel.  Wausau  Street 
R.  Co  V.  Bancroft,  38:  526,  134  N.  W.  330, 
148  Wis.   124. 

772.  An  ordinance  forbidding  further  in- 
terments in  a  cenieterj'  cannot  be  declared 
void  on  the  theory  that  the  incorporation 
of  the  cemetery  company  for  the  purpose  of 
maintaining  a  cemetery,  and  its  purcliase 
of  land  for  that  purpose,  constitute  a  con- 
tract which  cannot  be  violated.  Laurel  Hill 
Cemeterv  v.  San  Francisco,  27:  260,  93  Pac. 
70,  152  Cal.  464. 

773.  The  legislature  cannot  enlarge  the 
dower  rights  of  a  widow  as  against  the 
rights  of  one  who  has  contracted  for  & 
judgment  lien  on  the  property  of  the  hus- 
band in  view  of  the  constitutional  provision 
against  impairing  the  obligation  of  con- 
tracts, althoigh  the  judgment  is  not  actu- 
ally entered  until  after  the  statute  i''  passed. 
Davidson  v.  Richardson,  17:  319,  91  Pac. 
1080,  50  Or.  323.  (Annotated) 
Succession  tax. 
Equal   protection   and  privileges   as  to,   see 

supra,  227-231. 
Due  process  of  law  as  to,  see  supra,  405- 
410. 

774.  The  enactment  of  a  state  statute 
subjecting  to  an  inheritance  tax  the  rights 
of  a  surviving  wife  in  the  community  prop- 
erty does  not  violate  the  contract  clause  of 
the  Federal  Constitution,  even  if  such 
rights,  as  they  existed  when  the  marriage 
was  celebrated,  are  contractual,  so  that  they 
may  not  be  essentially  changed  or  modified 
by  subsequent  legislation  without  impair- 
ing contract  obligations.  Moffitt  v.  Kelly,. 
30:  1179,  31  Sup.  Ct.  Rep.  79,  218  U.  S.  400, 
54  L.  ed.  1086. 
Tax  deeds   and   certificates. 

775.  Any  statute  which  impairs  any  of 
the  substantial  rights  secured  to  the  holder 
of  a  tax  certificate  by  the  existing  laws  is 
unconstitutional.  State  ex  rel.  National 
Bond  &  S.  Co.  V.  Krahmer,  21:  157,  117  N. 
W.  780,  105  Minn.  422. 
Banks;  deposits. 
Equal   protection   and   privileges  as  to,   see 

supra,  280-283. 
Due  process  as  to,  see  supra,  435,  436. 
Police  power  as  to,  see  supra,  700-702. 

776.  Contract  obligations  under  a  bank's 
charter  which  is  subject  to  alteration  or 
repeal  are  not  unconstitutionally  impaired 
by  the  levy  and  collection,  under  a  state 
statute,  of  an  assessment  based  upon  aver- 
age daily  deposits,  for  the  purpose  of  creat- 
ing a  depositors'  guaranty  fxmd  to  secure 
the  full  repayment  of  deposits  in  case  it  or 
any  other  bank  existing  under  the  state 
laws  becomes  insolvent,  unless  such  statute 


594 


CONSTITUTIONAL  LAW,  II.  g,  1. 


deprives  the  bank  of  liberty  or  property 
without  due  process  of  law.  Noble  State 
Bank  v.  Haskell,  32:  1062,  .31  Sup.  Ct.  Rep. 
186,  219  U.  S.  104,  55  L.  ed.  112. 

777.  The  obligation  of  the  contract  be- 
tween a  saving!?  bank  and  its  depositor  ia 
not  unconstitutionally  impaired  by  Mass. 
Laws  1907,  chap.  340,  providing  that  de- 
posits which  have  remained  inactive  and 
unclaimed  for  thirty  years,  where  the  claim- 
ant is  unknown  or  the  depositor  cannot  be 
found,  shall  be  paid  to  the  treasurer  and 
receiver  general,  to  be  held  by  him  as  trus- 
tee for  the  tr«e  owner  or  his  legal  repre- 
sentatives. Provident  Inst,  for  Sav.  v.  Ma- 
lone,  34:  1129,  31  Sup.  Ct.  Rep.  661,  221  U. 
S.  060,  55  L.  ed.  899. 

778.  The  contract  rights  between  a  bank 
and  its  depositor  are  not  unconstitutionally 
impaired  by  a  statute  passed  after  the  dis- 
appearance of  the  depositor,  permitting  the 
fund  to  be  taken  into  possession  of  an  ad- 
ministrator after  the  depositor  has  been 
absent  and  unheard  of  for  seven  years.  Sav- 
ings Bank  v.  Weeks,  22:  221,  72  Atl.  475, 
110  Md.  78. 

Limiting  interest  rates  of  loan  asso- 
ciation. 

779.  A  building  and  loan  association  can- 
not, upon  the  ground  that  it  impairs  the 
obligation  of  existing  contracts,  question 
the  constitutionality  of  a  statute  which 
limits  interest  and  premium  to  be  charged 
borrowers  to  8  per  cent  per  annum,  and 
provides  that  in  case  of  the  amendment  of 
the  articles  of  incorporation  all  reductions 
of  the  rate  of  interest  or  premium  shall  be 
made  to  apply  to  members  who  have  bor- 
rowed from  the  association  prior  to  the 
adoption  of  the  act,  where  the  association 
has  amended  its  articles  to  conform  to  the 
act;  there  being  ^n  express  provision  in  the 
act  that  in  case  any  association  shall  fail 
so  to  amend  its  articles,  its  authority  to  do 
business  shall  be  revoked  and  its  affairs 
wound  up.  St.  John  v.  Iowa  Business 
Men's  Bldg.  &  L.  Asso.  15:  503,  113  N.  W. 
863,  136  Iowa,  448. 

Employers'  liability. 

Equal  protection  and  privileges  as  to,  see 

supra,  316-329. 
Due  process  as  to,  see  supra,  467-473. 

780.  An  employers'  liability  act  which 
provides  that  any  contract  or  device  what- 
soever, the  purpose  of  which  shall  be  to 
enable  any  common  carrier  to  exempt  it- 
self from  any  liability  created  by  the 
statute,  shall  be  void,  does  not,  as  applied 
to  existing  relief  department  contract^ 
which  permit  the  carrier  to  set  off  against 
its  liability  under  the  statute,  any  sum 
which  it  has  paid  out  of  its  relief  fund, 
violate  the  provision  of  the  Constitution 
that  no  law  shall  be  passed  impairing  the 
obligation  of  contracts.  Washington  v.  At- 
lantic C.  L.  R.  Co.  38:  867,  71  S.  E.  1066, 
136  Ga.  638. 

Regnlating  hours  of  labor.  I 

Equal  protection  and  privileges  as  to,  see 

supra,  301-311.  ' 

Digest   1-52  I<.R.A.(N.S.) 


Due  process  of  law  as  to,  see  supra,  477- 

485. 
Police  power  as  to,  see  supra,  720. 

781.  The  obligation  of  contracts  is  not 
unconstitutionally  impaired  by  a  statute 
forbidding  the  employment  of  laborers  in 
manufacturing  or  repairing  establishments 
more  than  ten  hours  per  day  except  in  cases 
of  emergency  or  where  public  necessity  re- 
quires. State  V.  J.  J.  Newman  Lumber  Co. 
45:  851,  59  So.  923,  102  Miss.  802. 
Spendthrift  trusts. 

Due  process  of  law  as  to,  see  supra,  382. 

782.  No  contract  right  is  destroyed  by  a 
statute  subjecting  existing  spendthrift 
trusts  to  execution,  although  at  the  time  of 
their  creation  all  income  necessary  for  the 
maintenance  and  education  of  the  bene- 
ficiary was  exempt,  where  the  instrument 
creating  the  trust  does  not  expressly  de- 
clare that  the  income  shall  be  exempt  from 
the  claims  of  creditors.  Brearley  School 
V.  Ward,  40:  1215,  94  N.  E.  1001,  201  N.  Y. 
358. 

Compensation  of  insurance  agents. 

783.  The  legislature  cannot  require  the  re- 
duction of  the  compensation  of  general  in- 
surance agents  under  existing  contracts  in 
view  of  the  provision  of  the  Federal  Con- 
stitution forbidding  the  impairment  of  the 
obligation  of  contracts.  Boswell  v.  Securi- 
ty Mut.  L.  Ins.  Co.  19:  946,  86  N.  E.  532, 
193  N.  Y.  465. 

Use  of  another's  photograph. 

Due  process  of  law  as  to,  see  supra,  387. 

784.  The  obligation  of  no  contract  is  im- 
paired by  a  statute  forbidding  the  use  of  a 
photograph  of  another  person  for  adver- 
tising or  trade  purposes  without  his  written 
consent,  which  operates  prospectively  only. 
Rhodes  v.  Sperry  &  Hutchinson  Co.  34: 
1 143,  85  N.  E.  1097,  193  N.  Y.  223. 
Solicitation  of  businesis  from  pas- 
sengers. 

785.  A  municipal  ordinance  forbidding  the 
solicitation  of  business  from  passengers 
entering  or  leaving  a  railroad  station,  being 
a  valid  exercise  of  the  police  power,  does 
not  unconstitutionally  impair  an  existing 
contract  between  the  railroad  company  and 
a  transfer  company,  giving  it  the  right  to 
solicit  such  business  within  the  depot 
grounds.  Seattle  v.  Hurst,  18:  169,  97  Pac. 
454,  50  Wash.  424. 

(2)    A8  to  corporate  rights,   property, 
and  liabilities. 

(Bee  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Equal  protection  and  privil^es  as  to,  see 
supra,  II.  a,  3. 

Change  of  remedy  for  enforcement  of  stock- 
holder's liability,  see  infra,  807-810. 

Power  of  legislature  to  amend  charter,  see 
COEPORATIONS,  37-46. 

Granting  privilege  to  street  railway  as  con- 
tract conferring  vested  right,  see  Street 
Railways,  2. 

See  also  supra,  41. 


CONSTITUTIONAL  LAW,  II.  g,  1. 


595 


786.  The  power  to  alter  or  repeal  general 
laws  under  which  corporations  have  been  or- 
ganized, reseryed  by  Neb.  Const.  1875,  art. 
lib  [13],  §  1,  is  limited  by  art.  1,  §  16, 
which  forbids  tlie  passage  of  any  law  impair- 
ing the  obligation  of  cgntracts;  and  it  does 
not  reserve  to  the  legislature  the  power  to 
destroy  or  impair  the  contracts  of  third  par- 
ties with  such  corporations.  Omaha  Wa- 
ter Co.  V.  Omaha,  12:  736,  77  C.  C.  A.  267, 
147  Fed.  1. 

787.  The  imposition  of  additional  require- 
ments on  foreign  corporations  doing  business 
within  a  state  under  a  statute,  by  an  amend- 
ment thereto,  does  not  violate  any  contract 
right,  where  substantially  the  same  duties 
are  imposed  on  like  domestic  corporations, 
and  there  is,  therefore,  no  discrimination 
against  foreign  corporations  that  had  pre- 
viously complied  with  the  statute,  and 
placed  themselves  on  an  equal  footing  with 
like  domestic  corporations.  Tarr  v.  Western 
Loan  &  Sav.  Co.  21:707,  99  Pac.  1049,  15 
Idaho,  741. 

788.  An  alteration  of  the  charter  of  a 
corporation,  impairing  the  obligation  of  the 
contract,  is  not  effected  by  authorizing  a 
majority  of  the  stocknolders  to  consolidate 
with  another,  and  acquire  the  interests  of 
dissenting  stockholders  under  the  right  of 
eminent  domain.  Spencer  v.  Seaboard  Air 
Line  R.  Co.  i :  604,  49  S.  E.  96,  137  N.  C. 
107. 

Transfer  of   corporate   stock. 

789.  A  statute  requiring  that  a  statement 
of  transfers  of  stock,  as  soon  as  shown 
upon  the  books  of  a  corporation,  shall  be 
filed  in  the  office  of  the  secretary  of  state  by 
the  corporate  officers,  and  which  imposes 
upon  the  person  selling  the  stock  the  duty 
of  seeing  that  this  is  done  in  order  to  re- 
lieve himself  from  liability  for  the  corpo- 
rate debts,  does  not,  as  to  one  owning  cor- 
porate stock  at  the  time  of  its  enactment, 
impair  the  obligation  of  his  contract  re- 
sulting from  his  ownership  of  the  stock,  so 
as  to  render  its  provisions  obnoxious  to  the 
Federal  Constitution.  Henley  v.  Myers,  17: 
779,  93  Pac.  168,  76  Kan.  723. 
Regulating  rates. 

Equal  protection  and  privileges  as  to,  see 

supra,  II.  a,  5,  d. 
Due  process  as  to,  see  supra,  II.  b,  4,  d. 

790.  An  order  of  a  water  board  reducing 
rates  below  the  amount  specified  in  the  mu- 
nicipal ordinance  accepted  by  the  company 
constructing  the  waterworks,  and  which  pro- 
vided that  the  company  should  furnish  water 
to  private  consumers  at  such  prices  as  might 
be  agreed  upon,  not  exceeding  those  speci- 
fied, impairs  the  obligation  of  a  contract; 
and  its  execution  will  be  enjoined.  Omaha 
Water  Co.  v.  Omaha,  12:  736,  77  C.  C.  A. 
267,  147  Fed.  1. 

791.  A  constitutional  provision  requiring 
the  legislature  to  pass  laws  to  correct 
abuses  and  prevent  unjust  discrimination  in 
all  charges  of  railroad  companies  enters  into 
all  contracts  made  with  such  companies; 
and  therefore  a  statute  forbidding  the  issu- 
ance of  free  passes  does  not  impair  the  ob- 
ligation of  one  who  has  contracted  with  the 
Digest  1-52  Ii.RJ^.(N.S.) 


company  for  such  pass  before  the  passage 

of  the  statute,  but  after  the  adoption  of  the 

Constitution.     State  v.  Martyn,  23:  217,  117 

N.  W.  719,  82  Neb.  225. 

Restricting  sale  of  tickets. 

Equal   protection   and  privileges  as  to,  see 

supra,  218,  219. 
Due  process   of  law   as  to,   see  supra,  391, 

504-507,  563. 
Police  power  as  to,  see  supra,  739-744. 

792.  A  statute  prohibiting  the  sale  of 
railroad  tickets  through  brokers  does  not 
impair  the  contract  of  the  holder  of  a 
ticket  purchased  after  the  law  took  effect. 
State  V.  Thompson,  4:  480,  84  Pac.  476,  47 
Or.  492. 

Railroad  companies  generally. 
Equal  protection  and  privileges  as  to,  see 
supra,  II.  a,  3,  b. 

793.  A  railroad  corporation  which,  by 
amendment  to  its  charter,  has  been  empow- 
ered to  increase  its  capital  stock,  is  not  en- 
titled to  do  so  without  the  consent  of  the 
railroad  commission,  as  required  by  Minn. 
Rev.  Laws  1905,  §  2872;  and  such  require- 
ment does  not,  when  applied  to  such  a  cor- 
poration, infringe  either  Minn.  Const,  art. 
1,  §  11,  or  U.  S.  Const,  art.  1,  §  10,  forbid- 
ding the  enactment  of  any  law  impairing 
the  obligation  of  contracts.  State  v.  Great 
Northern  R.  Co.  10:  250,  111  N.  W.  289,  100 
Minn.  445.  * 

794.  Rights  acquired  by  a  railway  com- 
pany under  a  valid  municipal  ordinance 
conferring  trackage  rights  in  the  city 
streets,  though  subject  to  the  power  of  the 
municipality  to  pass  reasonable  police  regu- 
lations, are  protected  by  the  contract  clause 
of  the  Federal  Constitution  from  destruc- 
tion by  a  subsequent  repeal.  Grand  Trunk 
W.  R.  Co.  V.  South  Bend,  44:  405,  33  Sup. 
Ct.  Rep.  303,  227  U.  S.  544,  57  L.  ed.  633. 

795.  The  obligations  of  a  contract  created 
by  a  valid  municipal  ordinance  granting  to 
a  railway  company  the  right  to  lay  double 
tracks  in  one  of  the  city  streets  are  un- 
constitutionally impaired  by  the  subsequent 
repeal  of  so  much  of  the  ordinance  as  re- 
lates to  that  part  of  the  street  upon  which 
a  single  track  only  has  actually  been  built, 
where  the  franchise  granted  by  such  ordi- 
nance was  single  and  specific,  and  was  ac- 
cepted by  the  company  in  its  entirety,  and 
the  company,  in  reliance  thereon,  acquired 
land  from  the  abutting  owners  with  a  view 
to  laying  a  double  track  as  the  increase  in 
business  demanded,  and  has  actually  built 
the  double  track  for  a  part  of  the  distance. 
Grand  Trunk  W.  R.  Co.  v.  South  Bend,  44: 
405,  33  Sup.  Ct.  Rep.  303,  227  U.  S.  544, 
57  L.  ed.  633, 

Telepkone  companies. 

796.  A  contract  between  local  telephone 
companies  for  connection  of  their  lines  for 
through  business,  which  is  valid  when  made, 
cannot  be  invalidated  by  subsequent  legis- 
lation. Home  Teleph.  Co.  v.  Sarcoxie 
Light  &  Teleph.  Co.  36:  124,  139  S.  W.  108, 
236  Mo.   114. 

Insurance  companies. 

797.  The  property  of  a  mutual  insurance 
company,  and  the  equitable  property  rights 


598 


CONSTITUTIONAL  LAW,  II.  g,  2. 


of  its  members,  are  within  the  guaranties 
of  the  state  Constitution  as  regards  the  in- 
hibition against  laws  impairing  the  obli- 
gation of  contracts,  and  the  inhibition  of 
the  national  Constitution  as  regards  the 
equal  protection  of  the  laws  and  depriva- 
tion of  property  without  due  process  of 
lawi  Huber  v.  Martin,  3:  653,  105  N.  W. 
1031,  127  Wis.  412. 

798.  A  law  enacted  during  the  life  of  a 
mutual  insurance  company,  providing  for 
the  distribution  of  its  assets,  or  a  bestowal 
thereof  upoa  another,  without  consent  of  all 
of  it  members,  no  authority  in  that  regard 
being  contained  in  the  charter  of  such  com- 
pany, offends  against  the  provision  of  the 
state  Constitution  inhibiting  laws  impairing 
the  obligation  of  contracts,  and  the  inhibi- 
tion of  the  national  Constitution  as  regards 
the  equal  protection  of  the  laAvs  and  depriva- 
tion of  property  without  due  process  of  law. 
Huber  v.  Martin,  3:  653,  105  N.  W.  1031,  127 
Wis.  412. 

799.  There  being  no  vested  rights  in  a 
mutual  benefit  certificate  prior  to  the  death 
of  a  member,  the  contract  rights  of  one  who 
has  undertaken  to  be  bound  by  all  the  rules 
of  the  society  are  not  impaired  by  a  stat- 
ute permitting  the  society  to  distribute  its 
funds  according  to  its  rules  and  regulations, 
even  though  he  is  thereby  deprived  of  the 
benefit  of  a  statute  providing  for  extended 
insurance  in  case  o-  forfeiture  of  his  policy 
for  nonpayment  of  premiums, — especially 
where  he  continues  to  pa^'  his  dues  without 
protest  after  the  society  has  adopted  the 
provisions  of  the  act.  Westerraan  v.  Su- 
preme Lodge,  K.  of  P.  5:  1 1 14,  94  S.  W.  470, 
196  Mo.  670. 

800.  There  is  no  impairment  of  the  obliga- 
tion of  a  contract  by  imposing  a  penalty  on 
an  insurance  company  for  not  paying  a 
claim  within  a  certain  time  after  it  ac- 
crues. Snyder  v.  Supreme  Ruler,  F.  M.  C. 
45:  209,   122   S.  W.  981,   122   Tenn.  248. 

b.  By  change  of  decisions. 

(See   also   same   heading   in  Digest  L.R.A. 
1-70.J 

801.  The  provision  of  the  Federal  Consti- 
tution forbidding  the  enactment  of  laws  im- 
pairing the  obligation  of  contracts  does  not 
apply  to  a  judicial  decision  overruling  a 
former  adjudication,  so  as  to  permit  a  re- 
covery for  services  performed  subsequent  to 
the  former  decision,  by  a  person  not  a  party 
or  privy  thereto,  when  such  services  are 
rendered  illegal  by  the  subsequent  decision. 
Crigler  v.  Shepler,  23:  500,  101  Pac.  619, 
79  Kan.  834.  (Annotated) 

802.  One  who  has  rendered  services  to  the 
public  in  performance  of  a  contract  author- 
ized by  statute,  the  constitutional  validity 
of  which  has  been  affirmed  by  the  supreme 
court,  is  entitled,  notwithstanding  a  subse- 
quent decision  that  the  act  is  constitution- 
ally void,  to  receive  the  stipulated  compen- 
sation for  such  services  as  he  has  performed 
before  the  filing  of  the  petition  in  the  action 
which  challenges  the  validity  of  the  con- 
Digest  1-52  L.R.A.(N.S.) 


tract.     Thomas  v.  State  ex  rcl.  Gilbert,  10: 
1H2,  81  N.  E.  437,  76  Ohio  St.  341. 

803.  The  doctrine  that  if  a  contract  when 
made  was'  valid  by  the  laws  of  the  state, 
as  then  administered  in  its  courts  of  jus- 
tice, its  validity  and  obligation  cannot  be 
impaired  by  any  subsequent  decision  of  the 
courts  of  the  state,  altering  the  construc- 
tion of  the  law,  does  not  apply  where  the 
making  of  the  contract  is  in  itself  a  viola- 
tion of  the  law ;  and  therefore  has  no  appli- 
cation where  a  corporation  which  has  failed 
to  comply  with  a  statute  subjecting  to  a 
penalty  any  corporation  undertaking  to 
transact  any  business  in  the  state  without 
filing  a  statement  of  the  location  of  its 
place  of  business  within  the  state  and  tlie 
name  of  an  agent  thereat,  upon  whom  proc- 
ess may  be  served,  seeks  to  enforce  a  con- 
tract entered  into  subsequently  to  an  earli- 
er decision  of  the  court  to  the  effect  that 
failure  to  comply  with  such  statutory  re- 
quirements will  not  prevent  the  enforce- 
ment of  a  contract.  Oliver  Co.  v.  Louis- 
ville Realty  Asso.  51:  293,  161  S.  W.  570, 
156  Ky.   628. 

804.  The  constitutional  provision  against 
impairment  of  the  obligation  of  contracts, 
does  not  prevent  municipal  bonds  from  be- 
ing held  invalid  because  of  want  of  power 
to  issue  them,  although  at  the  time  they 
were  issued  the  supreme  court  of  the  state 
had  expressed  the  opinion  that  municipali- 
ties might  issue  such  bonds.  Swanson  v. 
Ottumwa,  5:  860,  106  N.  W,  9,  131  Iowa,  540. 

{ Annotated ) 

2.  As  to  remedies. 

(See   also   same   heading   in  Digest   L.R.A^ 
1-70.) 

Due  process  of  law  as  to,  see  supra,  II.  b,  7. 

805.  The  remedies  for  the  enforcement  of 
a  contract,  existing  in  a  state  when  the 
contract  is  made,  are  a  part  of  its  obli- 
gation, and  any  repeal  or  change  of  any  of 
these  remedies,  which  substantially  ob- 
structs or  retards  its  enforcement  or  lessens- 
the  value  of  the  agreement,  impairs  its  obli- 
gation, and  is  unconstitutional  and  void ; 
but  a  repeal  or  change  of  remedies,  which 
does  not  substantially  diminish  the  value- 
of  the  agreement  or  seriously  retard  or  ob- 
struct its  enforcement,  escapes  the  inhibi- 
tion of  the  Constitution,  and  is  valid. 
Harrison  v.  Remington  Paper  Co.  3:  954^ 
72  C.  C.  A.  405,  140  Fed.  385. 
Subrogation. 

806.  Making  applicable  to  existing  con- 
tracts of  insurance  which  provide  for  sub- 
rogating the  insurer  to  claims  of  the 
insured  against  those  who  destroy  any  prop- 
erty by  fire,  a  statute  providing  that  no 
subrogation  should  be  allowed  if  the  fire 
was  caused  by  a  railroad  company,  would 
unconstitutionally  impair  their  obligation. 
British  America  Assur.  Co.  v.  Colorado  & 
S.  R.  Co.  41:  1202,  125  Pac.  508,  1135,  52 
Colo.  589.  (Annotated) 


CONSTITUTIONAL  LAW,  II.  g,  2. 


597 


Stockholders'   liability. 

807.  An  unconstitutional  impairment  of 
contract  is  effected  by  the  change  of  a  law 
permitting  individual  creditors  of  a  corpora- 
tion to  enforce  their  claims  against  indi- 
vidual stockholders  to  double  the  par  value 
of  their  stock,  so  as  to  provide  one  suit  in 
equity  in  behalf  of  all  creditors,  to  which 
all  stockholders  may  become  parties,  and 
abate  suits  pending  under  the  former  law 
Myers  v.  Knickerbocker  Trust  Co.  i:  1171, 
l;59  Fed.  Ill,  71  C.  C.  A.  199. 

(Annotated) 

808.  A  statute  amending  a  law  for  the 
enforcement  of  the  constitutional  double 
liability  of  corporate  stocl-cholders  so  as  to 
substitute  an  action  by  a  receiver  for  the 
benefit  of  all  creditors  for  one  by  individual 
judgment  creditors  directly  against  stock- 
holders for  their  own  benefit  cannot,  under 
the  provisions  of  the  Federal  Constitution 
forbidding  the  impairment  of  the  obligation 
of  contracts,  be  made  applicable  to  claims 
which  matured  during  the  existence  of  the 
former  statute  prior  to  the  passage  of  the 
amendment.  Pusey  &  J.  Co.  v.  Love, 
11:  953,  66  Atl.  1013,  6  Penn.   (Del.)   80. 

809.  The  application  of  Kan.  Gen.  Stat. 
1901,  §  1302  (repealed  by  Laws  1903,  chap. 
152),  which  substituted  for  all  other  meth- 
ods of  enforcing  the  individual  liability  of 
stockholders  an  action  to  be  brought  by  a 
receiver,  as  against  stockholders  who  became 
such  prior  to  its  enactment,  did  not  con- 
stitute an  impairment  of  the  obligation  of 
tlie  contract  arising  out  of  their  membership 
in  the  corporation,  although  the  new  remedy 
might,  under  some  circumstances,  prove 
somewhat  more  burdensome  than  the  old,  so 
long  as  it  involved  no  actual  increase  in 
their  liability.  Henley  v.  Myers,  17:  779,  93 
Pac.  168,  76  Kan.  723. 

810.  The  provision  of  Kan.  Laws  1898, 
chap.  10,  p.  27,  which  repealed  the  statu- 
tory right  of  a  creditor  of  a  corporation  to 
an  individual  action  against  a  stockholder 
upon  the  suspension  of  the  business  of  the 
corporation  for  more  than  one  year,  and 
which  abrogated  the  right  of  such  a  creditor 
to  an  execution  against  a  stockholder  upon 
the  return  of  an  execution  unsatisfied  upon 
a  judgment  against  the  corporation,  and 
substituted  therefor  a  suit  in  equity  by  a 
receiver,  to  be  appointed  after  A  judgment 
against  the  corporation,  who  is  to  distribute 
pro  rata  among  the  creditors  the  sums 
which  he  may  collect  from  the  stockholders, 
— is  unconstitutional  and  void  against  con- 
tracts made  and  rights  which  accrued  be- 
fore its  passage,  since  it  lessens  the  value 
of  such  contracts,  and  tends  to  postpone 
their  enforcement,  and  thereby  to  impair 
their  obligation.  Harrison  v.  Remington 
Paper  Co.  3:  954,  140  Fed.  385,  72  C.  C.  A. 
405.  (Annotated) 
Zmployees'  indemnity  act. 

811.  No  contract  right  is  impaired  by 
making  applicable  to  existing  contracts 
which  are  to  terminate  in  the  future,  an 
employees'  indemnity  act  which  gives  the 
employees  an  option  to  take  advantage  of 
it,  or  to  stand  on  their  common-law  right, 
Digest  1-52  KR.A.(N.S.) 


under  the  contract,  to  maintain  an  action  to 
redress   an   injury   received   in  the  employ- 
ment.    Borgnis  v.  Falk  Co.  37:  489,  133  N. 
W.  209,  147  Wis.  327. 
Taxes  and  tax  deeds. 

812.  The  assurance  held  out  by  the  state 
to  purchasers  at  tax  sales  by  N.  D.  Rev. 
Laws  1890,  as  amended  in  1891,  that  the 
tax-sale  certificates  and  tax  deeds  issued  to 
them  would  be  prima  facie  evidence  of  the 
regularity  of  the  tax  proceedings,  although 
relating  to  the  remedy,  constituted  a  sub- 
stantial inducement  to  the  purchase,  enter- 
ing into  the  contract  with  the  state,  and  so 
materially  affecting  its  value  that  it  can- 
not be  taken  away  by  subsequent  legislation 
without  impairing  its  obligation.  Blake- 
more  V.  Cooper,  4:  1074,  106  N.  W.  566, 
15  N.  D.  5.  (Annotated) 

813.  A  statute  requiring  the  holder  of  a 
tax  certificate  to  give  notice  of  the  expira- 
tion of  the  redemption  period  within  six 
years  after  the  entry  of  the  tax  judgment, 
in  order  to  perfect  his  title,  does  not  im- 
pair any  of  the  obligations  of  his  contract 
riglits  under  a  former  law  which  provided 
that  such  notice  could  be  given  at  any  time 
after  the  redemption  period.  State  ex  rel. 
National  Bond  &  S.  Co.  v.  Krahmer,  21: 
157,  117  N.  W.  780,  105  Minn.  422. 

814.  A  statute  requiring  the  holder  of  a 
tax  certificate  to  give  notice  of  the  expira- 
tion of  the  redemption  period  within  six 
years  after  the  entry  of  the  tax  judgment, 
in  order  to  perfect  his  title,  and  invalidat- 
ing his  certificate  in  case  of  failure  to  do 
so,  does  not  impair  his  contract  rights  by 
depriving  him  of  the  right  to  refundment, 
secured  to  him  under  a  prior  law,  on  judi- 
cial determination  of  the  invalidity  of  the 
certificate,  under  which  notice  could  be  giv- 
en at  any  time  after  the  expiration  of  the 
redemption  period,  siiye  not  the  statute,  but 
his  failure  to  comply  with  it,  deprives  him 
of  the  right  to  refundment.  State  ex  rel. 
National  Bond  &  S.  Co.  v.  Krahmer,  21:  157, 
117  N.  W.  780,  105  Minn.  422. 

815.  Eight  months  and  thirteen  days  be- 
tween the  passage  and  taking  effect  of  a 
statute  limiting  the  time  within  which  the 
holder  of  existing  tax  certificates  must  give 
notice  of  the  expiration  of  the  redemption 
period  in  order  to  perfect  his  title,  where 
theretofore  the  notice  could  be  given  at  any 
time,  is  a  reasonable  time  as  to  such  exist- 
ing certificates  as  would  be  rendered  invalid 
by  failure  to  give  the  required  notice  Avithin 
such  period.  State  ex  rel.  National  Bond  & 
S.  Co.  V.  Krahmer,  21:  157,  117  N.  W.  780, 
105  Minn.  422.  (Annotated) 
Limitation     of     actions;     contractual 

limitation. 
Vested  right  in,  see  supra,  65. 
See  also  supra,  815. 

816.  No  unconstitutional  impairment  of 
an  insurance  contract  is  effected,  so  far  as 
losses  which  have  not  yet  occurred  are  con- 
cerned, by  a  statute  annulling  a  provision 
therein  limiting  the  time  within  which  an 
action  may  be  brought  to  recover  a  loss 
thereon.  Smith  v.  Northern  Neck  ]Mut.  F. 
Asso.   38:  1016,  70  S.  E.  482,  112  Va.   192. 


598 


CONSTITUTIONAL  LAW,  11.  h— CONSTRUCTION. 


817.  No  impairment  of  a  contract  ripht 
to  use  state  bonds  in  payment  for  state  lands 
is  ert'ected  by  a  statute  providing  for  the 
payment  of  the  bonds  in  cash,  and  limiting 
the  time  for  presentation  to  six  months 
after  publication  of  notice,  after  the  expira- 
tion of  which  the  bonds  are  not  to  b'^  recog- 
nized as  valid  for  any  purpose.  Tipton  v. 
Smythe,  7:  714,  94  S.  W.  678,  78  Ark.  392. 
Liens. 

818.  The  obligation  of  the  contract  of  a 
mortgagee  is  not  impaired  by  the  passage 
of  a  drainage  law  providing  that  the  assess- 
ment upon  the  property  shall  have  priority 
over  the  mortgage,  without  requiring  notice 
of  the  assessment  to  be  given  the  mort- 
gagee. Baldwin  v.  Moroney,  30:  761,  91  N. 
E.  3,  173  Ind.  574. 

h.  Guaranty  of  reptiblican  form  of 
government. 

See  also  Couets,  77. 

819.  A  blending  of  legislative  and  execu- 
tive or  administrative  powers  in  the  same 
official  does  not  violate  the  provision  of  the 
Federal  Constitution  guaranteeing  to  every 
state  a  republican  form  of  government. 
Saratoga  Springs  v.  Saratoga  Gas,  E.  L.  & 
P.  Co.  18:  713,  83  N.  E.  693,  191  N.  Y.  123. 

820.  The  licensing  by  the  legislature  of 
the  sale  of  intoxicating  liquors  is  not  in- 
valid under  the  clause  of  the  Federal  Consti- 
tution requiring  the  United  States  to  guar- 
antee to  every  state  a  republican  form  of 
government.  AUyn's  Appeal,  23:  630,  71 
Atl.  794,  81  Conn.  534. 

Curative  act. 

821.  A  constitutional  amendment  vali- 
dating a  statute  declared  unconstitutional 
by  the  courts  does  jiot  violate  the  provi- 
sions of  the  Federal  Constitution  guaranty- 
ing each  state  a  republican  form  of  govern- 
ment. Hammond  v.  Clark,  38:  77,  71  S.  E. 
479,  136  Ga.  313.  (Annotated) 
Initiative,  refereadnm,  and  recall. 

822.  A  republican  lorm  of  government  is 
not  destroyed  by  taking  from  the  legis- 
lature and  committing  directly  to  the 
people  the  power  over  the  enactment  of  cer- 
tain kinds  of  legislation.  Kiernan  v.  Port- 
land, 37:  332,  111  Pac.  379,  112  Pac.  402, 
57   Or.  454,  466. 

823.  The  republican  form  of  government 
guaranteed  by  the  Federal  Constitution  does 
not  prohibit  the  direct  exercise  of  legisla- 
tive power  by  the  people  of  a  subdivision 
of  a  state  in  strictly  local  aflfairs.  Ex  parte 
Pfahler,  ii:  1092,  88  Pac.  270,  150  Cal.  71. 

( Annotated ) 

824.  The  legislature  cannot  confer  upon 
the  residents  of  a  municipal  corporation 
the  power  to  enact  ordinances  by  initiative 
and  referendum,  where  the  Constitution 
delegates  to  it  the  legislative  power,  and 
merely  reserves  to  the  people  the  right  to 
assemble  and  apply  to  those  invested  with 
the  powers  of  government  for  redress  of 
grievances,  while  it  forbids  any  change  in 
the  form  of  government.  Ex  parte  Farns- 
Digest  1-52  ImR.A.(N.S.) 


worth,  33:  968,  135  S.  W.  5.35,  61  Tex.  Crim. 
Rep.  342,  (Annotated) 

825.  The  provisions  of  the  initiative  and 
referendum  as  applied  to  municipal  corpo- 
rations do  not  raise  the  question  whether 
or  not  a  state  has  a  republican  form  of  gov- 
ernment. State  ex  rel.  Wagner  v.  Sum- 
mers, 50:  206,  144  N.  W.  730,  —  S.  D.  — . 

{ Annotated ) 

i.  Rights  of  assembly  and  petition. 

Partial  invalidity  of  statute  invading  rights 
of  free  assembly,  see  Statutes,  70,  71. 

826.  A  political  convention  is  an  "as- 
semblage" within  the  meaning  of  the  con- 
stitutional provision  that  the  right  of  the 
people  to  assemble  to  consult  for  the  com- 
mon good  shall  never  be  abridged.  State 
ex  rel.  Ragan  v.  Junkin,  23:  839,  122  N.  W. 
473,  85  Neb.   1. 

827.  A  statute  declaring  that  candidates 
for  judicial  and  educational  offices  shall  not 
be  nominated,  indorsed,  recommended,  criti- 
cized, or  referred  to  in  any  manner  by  any 
political  party,  convention,  or  primary,  vio- 
lates a  constitutional  provision  declaring 
that  the  right  of  the  people  peaceably  to 
assemble  to  consult  for  the  common  good, 
and  to  petition  the  government,  or  any  de- 
partment thereof,  shall  never  be  abridged. 
State  ex  rel.  Ragan  v.  Jimkin,  23:  839,  122 
N.  W.  473,  85  Neb.  1. 

828.  The  right  to  sign  and  circulate  a  pe- 
tition for  the  impeachment  of  a  public  offi- 
cer is  conferred  by  a  constitutional  provi- 
sion that  the  people  shall  have  the  right 
of  appealing  to  those  invested  with  the 
power  of  government  for  the  redress  of 
grievances,  or  other  proper  purposes,  by 
petition,  address,  or  remonstrance.  Yancey 
V.  Com.  25:  455,  122  S.  W.  123,  135  Ky. 
207. 


CONSTRUCTION. 


Of  abstracts  of  title  in  evidence,  see  Ab- 
stracts, 9. 
Of    by-laws    of    building    associations,    see 

Building  and  Loan  Associations,  1. 
Of  Constitution,  see  Constitutionai.  Law, 

I.  a,  3. 
Of  contract,  see  Contbacts,  II. 
Of  corporate  charter,  see  Cobpoeations,  33, 

34. 
Of  covenants  and  conditions,  see  Covenants 

AND  Conditions,  II. 
Of  deeds,  see  Deeds,  II. 
Of  guaranty,  see  Guaranty,  I. 
Of  insurance  contract  generally,  see  lNStJ»- 

ANCE,    III.    d. 
Of  lease,  see  Landlord  and  Tenant,  II. 
Of  oil  and  gas  lease,  see  Mines,  II.  b,  4. 
Of  municipal  charter,  see  Municipal  C<»- 

porations,  I.  d. 
Of  pleading,  see  Pleading,  9-13,  606. 
Of  railroads,  sec  Railroads,  II. 
Of  statute,  see  Statutes,  II. 
Of  treaties,  see'  Treaties,  4. 
Of  verdict  in  criminal  case,  see  Teial,  1146. 
Of  wills,  see  Wills,  III. 


CONSTRUCTION  CONTRACTS—  CONTEMPT. 


599 


CONSTRUCTION  CONTRACTS. 

See    Building    and    Constbuction    Con- 
tracts. 


CONSTRUCTIVE    FRAUD. 

iWhat  constitutes,  see  Fbaxjd  and  Deceit, 
IV. 


♦  »» 


CONSTRUCTIVE  NOTICE. 

Bee  Notice. 

«-•-* 

CONSTRUCTIVE  POSSESSION. 

See  Advebse  Possession,  I.  k, 

♦  »  » • 

CONSTRUCTIVE  TRUSTS. 
See  Tbusts,  I.  d. 

^  >  » • 

CONSUI.S. 
See  Diplomatic  and  Consulae  Officees. 
♦« » 


CONTAGIOUS  AND  INFECTIOUS 
DISEASES. 


Of  animals,  see  Animals,  I.  e;  Commebce, 
16-20;  Constitutional  Law,  653,  654; 
Municipal  Corporations,  162;  New 
Trial,  64;  Pleading,  282. 

Refusal  to  accept  as  passenger  person  aflflict- 
ed  with,  see  Carriers,  46,  474. 

Communication  of,  to  passenger,  see  Cab- 
riees,  225. 

Liability  of  carrier  for  communication  of, 
to  live  stock,  see  Carriers,  846;  Evi- 
dence, 1785;  Trial,  554. 

Requiring  certificate  of  freedom  from  ve- 
nereal disease  as  condition  to  marry, 
see  Constitutional  Law,  190,  669, 
765. 

County's  liability  for  loss  from  quarantin- 
ing person  for,  see  Counties,  3,  7,  8. 

Destruction  of  building  infected  with,  see 
Courts,  157;  Municipal  Corpora- 
tions, 153,  154. 

Damages  for  erroneously  indicating  that 
cattle  are  from  infected  district,  see 
Damajjes,  25. 

Injury  to  reputation  of  property  by  use  as 
a  smallpox  hospital,  see  Damages,  464. 

Judicial  notice  as  to,  see  Evidence,  42. 

Judicial  notice  as  to  quarantine  district  of 
southern  cattle,  see  Evidence,  35. 

Digest  1-52  L.R.A.(N.S.) 


Presumption  as  to  mother's  knowledge  of 
children's  violation  of  quarantine,  see 
Evidence,  203. 

Communication  of,  to  wife  by  husband,  see 
Evidence,  503;  Husband  and  Wife, 
207. 

Action  by  injured  person  against  carrier  em- 
ployed by  county  to  carry  patients  to 
pesthouse,  for  injury  through  negli- 
gence, see  Evidence,  2479;  Parties,  57.. 

Quarantine  against,  see  Health,  9-11. 

Regulations  to  prevent  spread  of,  see 
Health,  III. 

Hospital  for,  see  Hospitals,  1;  Municipal 
Corporations,  309;  Nuisances,  71,  72. 

Injunction  against  establishment  of  pest- 
house,  see  Injunction,  106,  374. 

Injunction  against  sending  persoon  afflicted 
with,  to  pesthouse,  see  Injunction, 
107,  108. 

Landlord's  liability  for  injury  by,  see  Land- 
lord AND  Tenant,  144. 

Assumption  of  risk  of,  by  servant,  see  Mas- 
ter AND  Servant,  501. 

Forbidding  publication  of  advertisements  of 
relief  for  venereal  diseases,  see  Munic- 
ipal Corporations,  217. 

Liability  of  municipality  for  spreading  of, 
see  Municipal  Corporations,  354. 

Liability  of  city  for  exposing  employee  to 
contagion,  see  Municipal  Corpora- 
tions, 375. 

Obscenity  of  advertisement  offering  to  cure 
venereal  disease,   see   Obscenity. 

Compulsory  vaccination,  see  Schools,  14. 

Liability  of  health  officers  for  acts  in  abat- 
ing cause  of  disease,  see  Trial,  279. 

Infecting  building  with,  as  waste,  see 
Waste,  1. 


CONTEMPT. 


J.  What   constitutes,    1—59. 

a.  In  general,   1—14:. 

b.  Charge  against  judge;  publica- 

tion   as    to    pending   case    or 
judicial  decision,  15—22. 

c.  Disobedience,  23—59. 

II.  Purging  from  contempt,   60—62, 
III.  Procedure,    63—79. 
IV.  Power  as  to,  80-98. 

a.  Of     notary     public     or     other 

officer,  80,  81. 

b.  Of  court,  82—98. 

V.  Judgment;  punishment,  99—111. 

Mandatory  injunction  to  compel  restoration 
of  status  of  property  disturbed  in  vio- 
lation of  decree,  see  Appeal  and  Er- 
ror, 41. 

Effect  of  pendency  of  appeal  from  order 
committing  for,  see  Appeal  and  Error, 
103. 

Statute  permitting  enforcement  by  con- 
tempt proceedings  of  order  for  inspec- 
tion, see  Discovery  and  Inspection, 
21. 

Presumption  in  favor  of  order  of  commit- 
ment, see  Evidence,  506. 


coo 


CONTEMPT,  I.  a. 


Sufficiency  of  evidence  to  sustain  finding  of 

contempt,   see  Evidence,   2303. 
Abandonment    of    objection    to    jurisdiction 

to  punish  for,  see  Habeas  Corpus,  33. 
Habeas  corpus  to  secure  release  of  person 

committed  for,  see  Habeas  Corpus,  54- 

56,  68. 
Mandamus    to   compel   punishment   for,    of 

witness  failing  to  produce  papers,  see 

Mandamus,  24. 
Indictment  for  act  w-hich   also  constitutes 

contempt    of    court,    see    Obstructing 

Justice,   4. 
Prohibition   to   restrain   contempt   proceed- 
ings, see  Prohibition,  18,  19. 
Statement  by  court  as  to  jailing   accused 

for,  see  Trial,  89. 

I,  What  constitutes. 


a.  In  general. 

(See   also   same  heading   in  Digest  L.R.A. 
1-10.) 

1.  That  a  person  is  on  trial  for  crime 
and  already  in  actual  custody  does  not 
render  him  incapable  of  committing  con- 
tempt of  court  or  of  being  punished  there- 
for. State  V.  Hogg,  29:  830,  53  So.  225, 
126  La.  1053. 

2.  An  attempt  to  approach  or  converse 
with  a  judge  with  reference  to  any  case  or 
matter  pending  before  him  is  a  contempt  of 
court.  Ingles  v.  McMillan,  45:  511,  113 
Pac.  998,  5  Okla.  Crim.  Rep.  130. 
Drunkenness  in  court  room. 

3.  Being  in  a  court  room  in  an  intoxi- 
cated condition  does  not  constitute  contempt 
of  court  if  the  fact  is  not  brought  to  the 
attention  of  the  judge  and  the  business  of 
tlie  court  is  in  no  way  interfered  with. 
Neely  v.  State,  33:  138,  54  So.  315,  98  Miss. 
816.  (Annotated) 
Assault  on  judge. 

4.  Abusing  and  assaulting  a  judge 
after  he  has  retired  from  the  court  room 
to  his  boarding  hor-e,  upon  adjournment 
subject  to  notice  from  the  judge,  because  of 
his  disposition  of  a  case  immediately  p.ior 
thereto,  is  a  contempt  of  court  at  common 
law.  Ex  parte  McCown,  2:  603,  51  S.  E. 
957,  139  N.  C.  95.  (Annotated) 

5.  Abusing  and  assaulting  a  judge  after 
he  has  retired  from  the  court  room  during 
a  recess  of  the  court,  because  of  his  action 
in  a  case  pending  before  him,  is  a  direct  con- 
tempt, within  the  meaning  of  a  statute 
defining  such  contempts  as  disorderly,  con- 
temptuous, or  insolent  behavior  commit- 
ted during  the  sitting  of  any  court  of  jus- 
tice, in  immediate  view  and  presence  of  the 
court,  and  directly  tending  to  interrupt  its 
proceedings,  or  to  impair  the  respect  due  to 
its  authority.  Ex  parte  McCown,  2:  603,  51 
S.  E.  957,  139  N.  C.  95.  (Annotated) 
Improper  conduct  in  selecting  tales- 
man. 

6.  Unlawful,  partial,  or  improper 
conduct  on  the  part  of  any  officer  whose  duty 
it  is  to  summon  a  jury  or  to  select  and  sum- 
Digest   1-52  I..Il.A.(N.S.) 


mon  talesmen  when  the  regular  panel  haa 
been  exhausted,  in  selecting  or  summoning 
such  juries  or  talesmen,  constitutes  gross 
contempt  of  court,  meriting  severe  punish- 
ment. United  States  v.  Hargo,  20:  1013,  98 
Pac.  1021,  1  Okla.  Crim,  Rep.  590. 

(Annotated.) 
Attempt  to  influence  jurors;  treating 
jurors. 

7.  All  wilful  attempts,  of  whatever  na- 
ture, seeking  to  improperly  influence  jurors 
in  the  impartial  discharge  of  their  duties, 
whether  it  be  by  conversations  or  discus- 
sions, or  attempts  to  bribe,  constitute  con- 
tempts. Emery  v.  State,  9:  1124,  111  N.  W. 
374,  78  Neb.  547. 

8.  A  juror  in  a  murder  case,  and  the 
bailiflf  having  charge  of  him,  who,  upon 
the  invitation  of  counsel  for  defendant,  go 
to  his  room  to  drink  intoxicating  liquor,  are 
guilty  of  contempt  of  court.  Poindexter 
v.  State,  46:  517,  159  S.  W.  197,  109  Ark. 
179. 

9.  The  attorney  for  defendant  in  a  mur- 
der case  who,  without  knowing  to  whom 
he  is  speaking,  invites  the  bailiff  and  one 
of  the  jurors  in  his  case  to  his  room  to 
drink  liquor,  and  furnishes  it  to  them  upon 
their  calling  after  he  knows  who  they  are, 
is  guilty  of  contempt  of  court.  Poindexter 
V.  State,  46:  517,  159  S.  W.  197,  109  Ark. 
179.  (Annotated) 

10.  An  attorney  is  not  guilty  of  con- 
tempt of  court  by  merely  remaining  in  his 
room  at  the  hotel  when  a  juror  in  the  case 
in  which  he  is  engaged  comes  there  for  a 
drink  upon  invitation  of  his  associate  coun- 
sel, with  whom  he  shares  the  room,  with- 
out excluding  the  juror  from  the  room  or 
reporting  the  matter  to  the  court,  if  he  had 
no  knowledge  of  the  invitation  or  who  the 
person  was  who  sought  admission  to  the 
room.  Poindexter  v.  State,  46:  517,  159  S. 
W.  197,  109  Ark.  179. 

Disclosures  by  grand  jurors. 

11.  A  grand  juror  is  not  guilty  of  con- 
tempt for  violating  his  oath  to  keep  the 
counsel  of  the  United  States  by  disclosing 
the  evidence  on  which  an  indictment  was 
founded  after  publication  of  the  indictment 
has  been  made,  the  accused  is  in  custody, 
and  the  grand  jury  has  been  finally  dis- 
charged. Atwell  V.  United  States,  17:  1049, 
162  Fed.  97,  89  C,  C.  A.  97. 

Filing  repeated  motions. 

12.  The  mere  filing  and  presentation  of 
repeated  motions  which  are  thought  to  be 
for  the  purpose  of  vexation  or  delay  does 
not  constitute  contempt  of  court.  Johnson 
v.  State,  18:  619,  112  S.  W.  143,  87  Ark.  45. 
Criminal  contempt. 

Review   of   conviction   of,   see  Appeal  and 

Error,  204,  410, 
Sentence  on  defective  count  in  petition,  see 

Appeal  and  Error,  1058. 
Indictment  for,  see  Indictment,  etc.,  104, 
See  also  infra,  66,  95,  106. 

13.  A  contempt  proceeding  growing  out 
of  a  violation  of  a  preliminary  injunction 
issued  against  a  defendant  in  a  divorce 
proceeding  restraining  him  from  removing, 
encumbering,  or  disposing  of  his  property. 


CONTEMPT,  I.  b,  c. 


60] 


and  his  refusal  to  pay  a  judgment  entered 
against  him  in  the  proceeding,  is  a  civil, 
and  not  a  criminal,  proceeding.  Canavan 
V.  Canavan,  51:  972,  139  Pac.  154,  18  N.  M. 
640. 

13a.  Wilful  disobedience  of  an  injunction 
restraining  interference  with  another's  em- 
ployees is  within  the  provisions  oi  a  stat- 
ute empowering  courts  of  record  to  punish 
as  for  criminal  contempt,  persons  guilty 
of  wilful  disobedience  of  an  order  lawfully 
made  by  them.  Enterprise  Foundry  Co.  v. 
Iron  Moulders'  Union,  13:  598,  112  N.  W. 
685,  149  Mich.  31.  (Annotated) 

14.  The  officers  of  a  bank  may  be  con- 
victed of  criminal  contempt  for  failure  to 
obey  an  order  of  court  requiring  the  pro- 
duction of  books,  although  the  order  merely 
commands  the  officers  of  the  bank  to  pro- 
duce the  books,  without  naming  any  par- 
ticular person.  Burnett  v.  State  ex  rel. 
West,  47:  1 175,  129  Pac.  1110,  8  Okla.  Crim. 
Rep.  639. 

6.  Charge  against  judge;  puhlication  as 
to  pending  case  or  judicial  decision. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Disbarment  of  attorney  for  criticism  of,  or 
lack  of  respect  toward,  court,  see  At- 
torneys, 6,  8-11. 

15.  An  editorial  misstatement  of  the  law 
as  stated  in  a  court's  written  opinion  on  a 
matter  of  wide  application  and  importance 
is,  although  unintentional,  a  contempt  of 
the  court.  Re  Providence  Journal  Co.  17: 
582,  68  Atl.  428,  28  R.  I.  489.       (Annotated) 

16.  The  truth  of  articles  published  dur- 
ing a  trial,  tending  to  prejudice  the  public 
and  members  of  the  jury  an^.^  thereby  in- 
fluence the  result,  is  no  defense  to  a  pro- 
ceeding for  contempt.  Hughes  v.  Territory, 
6:  572,  85  Pac.   1058,   10  Ariz.   119. 

(Annotated) 

17.  The  publication  in  a  newspaper  of 
articles  containing  statements  highly  detri- 
mental to  persons  on  trial,  many  of  which 
related  to  matters  as  to  which  evidence 
would  not  have  been  admissible  against  them 
in  any  event,  constitutes  a  contempt  of  court 
and  may  be  punished  as  such.  Rex  v.  Tib- 
bits,  2  B.  R.  C.  469,  [1902]  1  K.  B.  77. 
Also  reported  in  50  Week.  Rep.  125,  85  L. 
T.  N.  S.  521,  18  Times  L.  R.  49,  71  L.  J. 
K.  B.  N.  S.  4,  66  J.  P.  4.  (Annotated) 
Attempt  te  disqualify  judge. 

18.  It  is  not  a  contempt  of  court  to  file 
a  motion  suggesting  disqualification  of  the 
judt^e  to  sit  in  the  trial  of  a  case  on  the 
ground  that  he  is  related  within  the  statu- 
tory degree  to  some  person  having  a  direct 
pecuniary  interest  in  the  result  of  the  suit, 
but  not  a  pai"tv  to  tlie  record.  Johnson  v. 
State,  18:619, '112  S.  W.  143,  87  Ark.  45. 
Charge    against   judge. 

See  also  infra,  84. 

19.  A  statement  in  a  petition  for  rehear- 
ing, that  a  certain  ruling  of  the  court  which 
has  been  concurred  in  by  several  courts  of 
Digest   1-52  I*,R.A.(N.S.) 


last  resort,  including  that  of  the  United 
States,  is  all  wrong,  and  written  "by  poli- 
ticians, and  for  politics.  They  do  :.ot 
know  what  they  wrote  about," — renders  the 
one  making  it  guilty  of  contempt  of  court. 
Re  Chartz,  5:  916,  85  Pac.  332,  29  Nev.  110. 

(Annotated) 

20.  It  ia  contempt  to  scandalize  a  court 
of  record  by  a  newspaper  publication  in 
respect  to  a  decision  in  a  case  no  longer 
pending, — such  as  impugning  the  motives  of 
the  court  and  charging  it  with  corruption. 
State,  Sargent,  Informant,  v.  Hildreth,  24: 
551,  74  Atl.  71,  82  Vt.  382. 

21.  A  statement  in  an  affidavit  for 
change  of  judges  that  affiant  believes  and 
alleges  that  the  judge  made  certain  er- 
roneous rulings  wilfully  and  corruptly  for 
the  purpose  of  preventing  a  fair  trial,  and 
that,  because  of  his  hatred  towards  affiant, 
the  judge  would  wilfully  make  unlawful  rul- 
ings and  find  all  matters  of  fact  against 
affiant  without  evidence,  and  give  affiant's 
evidence  no  weight,  which  is  made  without 
any  attempt  to  state  the  source  of  the  in- 
formation or  the  origin  of  the  belief,  is  a 
contempt  on  the  part  of  the  affiant's  attor- 
ney who  presents  the  affidavit  to  the  court. 
Lamberson  v.  Superior  Court,  11:  C19,  91 
Pac.   100,   151   Cal.   458. 

22.  Contempt  is  not  the  proper  remedy 
against  one  who  publishes  a  newspaper 
article  reflecting  on  the  conduct  of  a  judge 
in  the  performance  of  the  ministerial  duty 
of  keeping  account  of  the  fees,  emoluments, 
expenses,  etc.,  of  his  office,  although  the 
publication  may  interfere  with  and  embar- 
rass the  administration  of  justice,  and  tend 
to  bring  the  court  and  judge  into  disrepute, 
destroying  public  confidence  in  both,  and 
impairing  their  usefulness.  (Gabbert,  God- 
dard,  and  Bailey,  J  J.,  dissent.)  Hamma  v. 
People,  15:  621,  94  Pac.  326,  42  Colo.  401. 

(Annotated) 


c.  Disohedience. 


(See   also    same 
1-10.) 


heading   in   Digest   L.R.A. 


In  violating  provision  against  remarriage  in 

divorce  decree,  see  Injunction,  167. 
See  also  supra,  13,  14;  infra,  102. 

23.  It  is  the  duty  of  all  officers  of  the 
state  to  render  unquestioning  obedience  to 
the  judgments  of  the  courts.  If  the  courts 
are  in  error,  they  alone  have  the  power  to 
correct  such  errors.  State  ex  rel.  Tucker 
V.  Davis,  44:  1083,  130  Pac.  962,  9  Okla. 
Crim.  Rep.  94. 

24.  The  remedy  of  one  against  whom  an 
order  of  court  is  entered,  which  is  too  broad, 
is  by  motion  to  modify,  and  not  by  disre- 
garding it.  Vilter  Mfg.  Co.  v.  Humphrey, 
13:  591,  112  N.  W.  1095,  132  Wis.  587. 

25.  A  person  is  not  guilty  of  contempt  in 
refusing  to  obey, an  order  which  the  court 
has  no  power  to  make,  even  though  the 
court  has  general  jurisdiction  over  the  pro- 
ceeding in  which  the   order  is  made.     Mc- 


602 


CONTEMPT,  I.  c. 


Henry  v.  State,  i6:  1062,  44  So.  831,  91  Miss. 
562.  (Annotated) 

2G.  The  custodian  of  ballot  boxes  is  not 
guilty  of  contempt  for  disobedience  of  an 
order  directing  him  to  deliver  them  to  the 
clerk  of  the  court,  where  they  were  stolen, 
without  his  connivance,  from  the  receptacle 
in  which  he  had  securely  locked  them,  and 
he  did  not  know  their  whereabouts,  although 
such  receptacle  was  not  the  proper  place  for 
them  to  be  kept.  McHeory  v.  State,  16: 
1062,  44  So,  831,  91  Miss.  562. 

27.  The  father  of  an  illegitimate,  un- 
married minor  child  which  has  been  legiti- 
mated by  him,  who  neglects,  without  suf- 
ficient cause,  to  observe  a  valid  court  order 
directing  him  to  permit  its  natural  mother 
to  visit  it,  is  punishable  as  for  a  contempt, 
and  it  is  no  defense  that  his  wife  refused  to 
permit  him  to  obey  the  order,  where,  by  the 
act  of  legitimation,  the  child  was  not  made 
her  heir,  and  it  did  not  enter  her  house  as 
her  child,  since  in  such  case  she  had  no 
legal  right  to  the  custody  or  control  of  it. 
Allison  V.  Bryan,  30:  146,  109  Pac.  934,  26 
Okla.  520. 

28.  Going  into  another  state,  marrying, 
and  immediately  returning  to  one's  domi- 
cil,  is  not  punishable  as  a  contempt  of  the 
court  rendering  a  divorce  decree  and  for- 
bidding the  divorcee  to  remarry  within  a 
specified  time,  as  required  by  a  statute,  if 
the  penalty  provided  by  statute  for  such 
remarriage  is  punishment  for  bigamy.  Ex 
parte  Crane,  40:765,  136  N.  VV.  58^7,  170 
Mich.  651.  (Annotated) 
By  attorney. 

29.  An  attorney  who  has  been  suspended 
from  the  practice  of  his  profession  is  guilty 
of  contempt  of  court  if  he  retains  upon  his 
office  door  and  stationery  the  statement  that 
he  is  an  attorney,  and  consults  with  clients, 
makes  collections,  and  does  other  legal 
work  the  same  as  before  his  suspension,  ex- 
cept so  far  as  it  requires  his  appearance 
in  court  proceedings,  although,  in  so  doing 
he  acts  upon  advice  of  counsel.  Re  Lizotte, 
35:  794,  79  Atl.  960,  32  R.  I.  386. 

30.  A  disbarred  attorney  is  guilty  of 
contempt  in  accepting  a  fee  for  his  services 
in  attempting  to  induce  a  magistrate  to 
release  on  payment  of  the  fine  one  commit- 
ted for  failure  to  pay  the  fine  under  a  sen- 
tence imposing  a  fine  or  imprisonment,  al- 
though all  that  he  contracted  to  do  might 
have  been  done  by  one  not  admitted  to 
the  bar.  Re  Duncan,  24:  750,  65  S.  E.  210, 
83  S.  C.  186.  (Annotated) 
By  nritness. 

Effect  of  pendency  of  appeal  from  order  com- 
mitting for,  see  Appeal  and  Erbob, 
103. 

Prejudicial  error  in  fining  and  imprisoning 
witness  for  refusing  to  answer  ques- 
tions, see  Appeal  and  Ebbob,  1472. 

See  also  infra,  80,  97. 

31.  The  court,  after  having  given  the  of- 
fending party  an  opportunity  to  be  heard, 
has  an  inherent  right  to, punish  as  for  a 
contempt,  the  violation  of  a  lawful  order 
directing  a  witness  to  testify.  Ex  parte 
Beville,  27:  273,  50  So.  685,  58  Fla.  170. 
Digest  1-52  L.R.A.(N.S.) 


32.  A  witness  who  does  not  act  on  re- 
ligious or  other  convictions  may  be  com- 
mitted for  contempt  in  refusing  to  be  sworn 
or  to  affirm,  although  he  expects  the  ques- 
tions to  be  propounded  to  him  will  require 
self-incriminating  Answers.  Ex  parte 
Barnes,  51:  1155,  166  S.  W.  728,  —  Tex. 
Crim.  Rep,  — ,  (Annotated) 

33.  The  refusal  of  a  witness  to  answer 
such  improper  questions  as  would  constitute 
abuses  of  process  does  not  constitute  a  con- 
tempt of  court.  Ex  parte  Button,  23:  1173, 
120  N.  W.  203,  83  Neb.  636. 

34.  An  answer  by  a  witness  to  the  grand 
jury  in  response  to  a  question  whether 
or  not  he  had  bought  liquor  at  a  certain 
place  at  a  certain  time,  "I  could  not  say. 
Possibly  I  did,"  is  not  a  contempt  render- 
ing him  liable  to  summary  punishment. 
Creasy  v.  Hall,  41:  478,  148  S.  W.  914,  243 
Mo.  679,  (Annotated) 
By  juror. 

35.  Power  to  punish  for  contempt,  dis- 
obedience by  a  juror  to  a  command  of  the 
court,  does  not  extend  to  a  disclosure  of 
evidence  by  a  grand  juror  some  time  after 
his  final  discharge  from  service  as  such. 
Atwell  V.  United  States,  17:  1049,  162  Fed, 
97,  89  C.  C,  A,  97.  (Annotated) 
Of  order  to  produce  books. 
Sequestering  books  pending  appeal  from  con- 
tempt order  for  refusing  to  produce 
them,  see  Constitutional  Law,  364. 

See  also  supra,  14. 

36.  That  some  of  the  books  of  a  corpo- 
ration might  tend  to  incriminate  its  officers 
will  not  excuse  them  from  complying  with 
an  order  of  the  court  directing  them  to 
turn  over  to  a  receiver  all  books  and  papers 
belonging  to  the  corporation,  so  far  as  it 
can  be  obeyed  without  incriminating  them. 
Manning  v.  Mercantile  Securities  Co.  30: 
725,  90  N.  E.  238,  242  111.  584. 

37.  The  officers  of  a  bank  who  disobey 
an  order  for  the  production  of  the  books  of 
the  bank  may  be  punished  for  contempt 
thereof,  notwithstanding  the  order  was 
entered  upon  a  petition  the  main  purpose 
of  which  was  the  appointment  of  a  receiver 
for  the  bank,  and  such  appointment  was 
denied.  Burnett  v.  State  ex  rel.  West,  47: 
1175,  129  Pac.  1110,  8  Okla.  Crim.  Rep.  639. 
Of  order  to  pay  or  turn  over  money. 
See  also  infra,  68,  105,  110,  111. 

38.  Contempt  proceedings  will  not  lie  to 
enforce  an  order  of  restitution  of  money  se- 
cured in  satisfaction  of  a  judgment  which 
is  subsequently  reversed,  if,  when  the  order 
is  passed,  the  money  is  no  longer  in  pos- 
session of  the  judgment  creditor.  Dodson 
V.  Butler,  39:  iioo,  142  S.  W.  503,  101  Ark. 
416.  (Annotated) 

39.  To  sustain  a  decree  against  a  bank- 
rupt for  contempt  in  wilfully  refusing  to 
obey  an  order  directing  him  to  turn  over 
funds  to  the  trustee,  he  must  be  shown  to 
have  had,  at  some  specified  time  to  which 
the  proceedings  may  refer,  so  completely 
under  his  control  funds  vrhich  he  could  com- 
mand that  his  failure  to  command  them 
was   a   wilful   contempt   of   court.     Cole   v. 


CONTEMPT,  I.  c. 


eo3 


First  Nat.  Bank,  23:  255,  163  Fed.   180,  90 
C.  C.  A.  50.  (Annotated) 

40.  The  court  cannot  compel  a  husband 
who  has  no  trade  or  profession  or  employ- 
ment, to  learn  a  trade,  acquire  a  profes- 
sion, or  find  employment,  and,  by  exercise 
thereof,  derive  an  income,  to  comply  with 
the  court's  order  to  pay  alimony  to  his  wife, 
in  a  suit  for  her  separate  maintenance. 
Messervy  v.  Messervy,  30:  looi,  67  S.  E.  130, 
85  S.  C.  189.  (Annotated) 
Of  injunction. 

Contempt  proceedings  for  violation  of  in- 
junction as  criminal  proceeding,  see 
Action  ok  Suit,  67. 

Effect  of  appeal  from  injunction  order  on 
right  to  punish  for  contempt  in  dis- 
obeying it,  see  Appeal  and  Errob,  109. 

Right  of  parties  to  case  to  review  of  order 
punishing  stranger,  see  Appeal  and 
Error,  420. 

Scope  of  inquiry  on  appeal  from  conviction, 
see  Appeal  and  Error,  493. 

Judicial  notice  of  decree  granting  injunc- 
tion, see  Evidence,  9. 

Effect  of  defect  of  parties  in  injunction  suit, 
see  Injunction,  427. 

Effect  of  inability  of  court  to  punish  for 
contempt  in  disobeying  injunction  on 
validity  of  decree,  see  Judgments,  275. 

Violation  of  injunction  against  commission 
of  crime,  see  Jury,  50. 

See  also  supra,  13,  13a;  infra,  63,  65,  66, 
71,  72,  76,  88-91,  99,  104,  106-109. 

41.  A  contempt  proceeding  against  of- 
ficers and  citizens  of  a  city  for  having  at- 
tempted to  defeat  the  purpose  of  an  in- 
junction against  the  city  will  not  fail  for 
lack  of  official  notice  of  the  injunction,  since, 
if  actual  notice  was  not  inferable  from  the 
publicity  of  the  proceedings,  knowledge  of 
the  rendition  of  the  judgment  follows  from 
the  efforts  made  to  evade  it.  State  ex  rel. 
Jackson  v.  Pittsburg,  25:  226,  104  Pac.  847, 
80  Kan.   710. 

42.  Both  officers  and  citizens  of  a  mu- 
nicipal corporation  against  which  an  injunc- 
tion has  been  issued  ousting  it  from  the 
exercise  of  the  unwarranted  power  of  in 
effect  licensing  the  sale  of  intoxicating 
liquor  under  the  guise  of  collecting  fines  by 
simulated  prosecutions  for  violations  of  the 
prohibitory  law  who  were  concerned  in  the 
carrying  out  of  an  arrangement  whereby  a 
number  of  saloon  keepers  raised  a  fund 
from  which  they  paid  the  salaries  of  some 
of  the  city  officers  and  employees,  made 
to  evade  the  effect  of  the  judgment,  are 
guilty  of  contempt  of  court  in  virtue  of 
their  having  attempted  to  defeat  the  pur- 
pose of  the  judgment,  irrespective  of  wheth- 
er or  not  they  are  to  be  regarded  as  having 
violated  an  injunction  directed  against 
them.  State  ex  rel.  Jackson  v,  Pittsburg, 
25:  226,    104   Pac.   847,   80   Kan.   710. 

(Annotated) 

43.  The  court  may  enjoin  traffic  in  non- 
transferable railroad  tickets,  and  punish  for 
contempt  one  who  violates  the  injunction. 
Ex  parte  Cash,  9:  304,  99  S.  W.  1118,  50 
Tex.  Crim.  Rep.  623. 

44.  One  who  violated  an  injunction  for- 
Digest  1-52  Ii.B.A.(N.S.) 


bidding  the  publication  of  the  names  of  the 
signers  of  a  petition,  after  the  signers  have 
disowned  and  repudiated  it  as  having  been 
signed  under  a  misapprehension,  may  be 
punished  for  contempt.  Schwartz  v.  Edring- 
ton,  47:  921,  62  So.  660,  133  La.  235. 

46.  Picketing  to  accomplish  the  purpose 
of  a  strike  against  a  former  employer  while 
an  order  of  court  is  in  force  forbidding  it  is 
punishable  as  contempt.  Vilter  Mfg.  Co. 
v.  Humphrey,  13:  591,  112  N.  W.  1095,  132 
Wis.  587. 

47.  One  who  goes  to  the  premises  of  an 
employer  against  whom  a  strike  has  been 
declared,  and  in  whose  favor  an  injunction 
against  picketing  has  been  issued,  for  the 
purpose  of  doing  picket  duty  under  the  im- 
pression that  the  court  had  no  jurisdiction 
to  enjoin  such  act,  is  guilty  of  contempt. 
Re  Langell,  50:  412,  144  N.  W.  841,  178 
Mich.   305, 

48.  A  labor  union,  although  neither  a 
natural  nor  an  artificial  person,  is  amen- 
able to  the  court  and  to  the  law  for  a  viola- 
tion of  an  injunction,  where  no  objection 
was  made  in  the  original  suit  that  the  asso- 
ciation was  not  properly  before  the  court, 
and  where,  in  the  contempt  proceeding,  it 
answers  as  an  organization  having  a  legal 
existence;  and  it  is  wholly  immaterial  in 
the  contempt  proceeding  whether  the  in- 
junction decree  was  erroneous  or  not. 
Barnes  v.  Chicago  Typographical  Union  No. 
16,  14:  1 150,  83  N.  E.  932,  232  111.  402. 

49.  The  trial  court's  jurisdiction  to  pun- 
ish for  contempt  for  violation  of  an  injunc- 
tion forbidding  a  labor  union  to  picket  prem- 
ises of  complainants  and  to  interfere  with 
their  business  and  employees,  is  not  sus- 
pended by  an  appeal  from  the  decree,  since 
such  an  injunction  is  self -executing  as  .dis- 
tinguished from  one  that  requires  some- 
thing to  be  done  to  carry  out  the  command 
of  the  court.  Barnes  v.  Chicago  Typographi- 
cal Union  No.  16,  14:  1150,  232  111.  402,  83 
N.  E.  932.  (Annotated) 

50.  The  mere  fact  that  one  not  a  party 
to  an  injunction  against  interfering  with 
the  teams  of  a  teaming  association  assisted 
in  a  riot  in  which  such  teams  were  inter- 
fered with  and  those  in  charge  of  them 
assaulted,  is  not  sufficient  to  show  that  he 
aided  and  abetted  persons  named  in  the  bill 
in  violating  the  injimction,  so  as  to  render 
him  guilty  of  contempt  of  court.  Garrigan 
v.  United  States,  23:  1295,  163  Fed.  16,  89 
C.  C.  A.  494. 

51.  An  assault  upon  a  guard  of  a  team, 
interference  with  which  has  been  enjoined 
by  the  court,  after  he  has  been  arrested  and 
is  in  custody  of  the  police,  is  not  directed 
against  a  custodian  of  the  team  so  as  to 
render  the  act  a  contempt  of  the  injunction. 
Garrigan  v.  United  States,  23:  1295,  163 
Fed.   16,  89  C.  C.  A.  494. 

52.  The  mere  publication  in  newspapers 
and  posting  upon  wagons  of  an  injunc- 
tional  order  forbidding  interference  with 
teams  of  a  teaming  company  are  not  suffi- 
cient to  charge  with  knowledge  thereof, 
so  as  to  render  guilty  of  contempt,  one  not 
a  party  to  the  proceeding  who  assists  in  a 


604 


CONTEMPT,  II.,  III. 


riot  in  which  such  teams  are  interfered 
with  and  those  in  charge  of  them  as- 
saulted, in  opposition  to  his  denial  of 
knowledge  and  the  legal  presumption  of  his 
innocence.  Garrigan  v.  United  States,  23: 
1295,  163  Fed.  16,  89  C.  C.  A.  494. 

(Annotated) 

53.  The  mere  offer,  by  an  agent  of  the 
complainant  in  the  suit,  to  purchase  an 
article  which  defendant  is  enjoined  from 
selling,  for  the  purpose  of  determining 
whether  or  not  the  injunction  is  being  vio- 
lated, is  not  such  an  invitation  to  violate 
the  injunction  that  he  will  not  be  guilty 
of  contempt  in  case  he  makes  the  sale.  Ex 
parte  Cash,  9:  304,  99  S.  W.  1118,  50  Tex. 
Crim.  Rep.  623.  (Annotated) 

54.  A  proceeding  to  punish  for  the  vioJa- 
tion  of  an  injunction  restraining  the  main- 
tenance of  a  liquor  nuisance  is  a  part  of  the 
injunction  suit,  and  not  an  independent  ac- 
tion. State  V.  Porter,  13:  462,  91  Pac.  1073, 
76  Kan.  411. 

55.  Knowledge,  express  or  implied,  on 
the  part  of  a  property  owner,  of  unlawful 
sales  of  intoxicating  liquor  on  his  premises 
which  are  in  possession  of  tenants,  is  neces- 
sary to  render  him  guilty  of  violation  of  an 
injunction  against  allowing  or  permitting 
such  sales  to  be  made.  Sawyer  v.  Mould, 
25:  602,   122  N.   W.  813,  144  Iowa,   185. 

56.  A  tenant  or  occupant  of  a  building 
may  be  convicted  of  violating  a  recorded  de- 
cree of  the  district  court,  rendered  before  the 
commencement  of  his  tenancy  or  occupancy 
of  the  premises,  and  enjoining  all  persons 
from  maintaining  a  liquor  nuisance  thereon, 
although  he  had  no  actual  knowledge  or  no- 
tice of  the  decree.  State  v.  Porter,  13:  462, 
91  Pac.  1073,  76  Kan.  411. 

57.  The  clerk  of  a  saloon  keeper,  who  is 
not  a  party  to  a  suit  in  which  the  employer 
is  enjoined  from  maintaining  a  liquor  nui- 
sance, and  who  has  no  actual  knowledge  of 
the  decree,  is  not  guilty  of  contempt  in 
making  sales  of  liquor  in  violation  of  the 
injunction.  Harris  v.  Hutchinson,  44:  1035, 
140  N.  W.  830,  160  Iowa,  149. 

58.  One  against  whom  an  injunction  is 
issued  cannot  ignore  it  on  the  ground  that 
it  is  broader  in  its  terms  than  the  bill  jus- 
tifies. Franklin  Union  No.  4  v.  People,  4: 
looi,  77  N.  E.  176,  220  HI.  355. 

59.  Disobedience  of  an  injunction  void 
for  want  of  jurisdiction  in  the  court  or 
judge  awarding  it  is  not  a  contempt.  State 
ex  rel.  Powhatan  Coal  &  C.  Co.  v.  Ritz, 
9:  1225,  56  S.  E.  257,  60  W.  Va.  395. 

II.  Purging  from  contempt. 

60.  Mere  answer  under  oath  is  not  suffi- 
cient to  purge  one  charged  with  constructive 
contempt  of  court.  O'Flinn  v.  State,  9:  1119, 
43  So.  82,  89  Miss.  850.  (Annotated) 

61.  The  sworn  answer  of  a  party  charged 
with  contempt  is  evidence  to  purge  him 
thereof;  but  not  conclusive,  and  may  be 
contradicted  and  supported  by  other  evi- 
dence; and  v.here,  upon  a  consideration  of 
all  the  evidence,  the  court  is  satisfied  that 
it  is  within  the  power  of  the  party  charged 
Digest  1-52  I,.R.A.(N.S.) 


with  contempt  to  comply  with  the  order  of 
the  court,  the  order  may  be  enforced  by 
fine  or  imprisonment.  Burnett  v.  State  ex. 
rel.  West,  47:  1175,  129  Pac.  1110,  8  Okla. 
Crim.  Rep.  639. 

62.  In  a  prosecution  for  contempt  of 
court  by  attempting  to  influence  a  juror 
in  a  pending  civil  action,  a  denial  on  oath 
of  the  commission  of  the  offense  raises  an 
issue  of  fact  for  trial,  and  does  not  entitle 
the  accused  to  an  acquittance.  Emery  v. 
State,  9:  1124,  111  N.  W.  374,  78  Neb. '547. 

///.  Procedure. 

(See  also  Contempt,  II.  in  Digest  L.R.A. 
1-10.) 

Nature  of  action  or  suit  to  punish,  see  Ac- 
tion OB  Suit,  67,  69. 

Appearance  as  waiver  of  failure  to  serve 
citation  before  return  day,  see  Ap- 
PEABANCE,   10. 

Due  process  in,  see  Constitutional  Law, 
550,  551. 

Dismissal  of  contempt  proceeding,  see  Dis- 
missal AND  Discontinuance,  12. 

Presumption  that  person  was  found  guilty 
of,  without  hearing,  see  Evidence,  508. 

Qualification  of  judge  to  sit  on  trial  of  one 
for  contempt  consisting  of  reflections 
upon  himself,  see  Judges,  20. 

Right  to  jury  trial,  see  Jub\:,  17. 

Parties  defendant,  see  Pabties,  186. 

63.  A  witness  who  is  brought  before  a 
court  by  attachment  for  refusal  to  obey  a 
subpoena  need  riot  be  then  tried  and  pun- 
ished for  that  contempt,  but  can  be  pun- 
ished for  refusal  to  answer  proper  ques- 
tions then  propounded  by  the  court,  as  the 
order  of  procedure  is  within  the  court's 
discretion.  Ex  parte  Button,  23:  1173,  120 
N.  W.  203,  83  Neb.  636. 

64.  In  a  contenr  t  proceeding  originating 
in  a  civil  suit,  tht-  moving  papers  may  be 
looked  to  to  determine  the  particular  con- 
tempt when  it  does  not  appear  in  the  judg- 
ment. Ex  parte  Cash,  9:  304,  99  S.  W.  1118, 
50  Tex.  Crim.  Rep.  623. 

65.  The  truthfulness  of  the  averments  of 
injury  in  a  bill  for  injunction  cannot  be 
questioned  in  a  proceeding  for  contempt  for 
violation  of  the  injunction.  Franklin  Union 
No.  4  V.  People,  4:  looi,  77  N.  E.  176,  220 
111.  355. 

66.  A  court  of  record  has  jurisdiction  in 
a  proceeding  to  enjoin  interference  with 
one's  employees  upon  petitions  supported 
by  affidavits  praying  a  rule  to  show  cause 
why  defendant  should  not  be  punished  as 
for  criminal  contempt  for  wilful  violation 
of  the  injimction,  to  determine  whether  or 
not  he  was  guilty  of  wilful  disobedience, 
without  filing  interrogatories  for  his  benefit 
as  in  case  of  civil  contempt.  Enterprise 
Foundry  Co.  v.  Iron  Moulders'  Union,  13: 
598,  112  N.  ^^\  685,  149  Mich.  31. 

67.  A  warrant  of  commitment  for  con- 
tempt of  court  in  refusing  to  answer  ques- 
tions as  a  witness  is  not  sufficient  under 
a  statute  requiring  the   particular  circum- 


CONTEMPT,  IV.  a. 


605 


stances  of  tlie  offense  to  be  set  out,  where 
the  response  of  tlie  witness  to  the  question 
is  not  shown,  but  merely  the  conclusion  of 
the  court  that  he  refused  to  answer.  Creasy 
V.  Hall,  41:  478,  148  S.  W.  914,  243  Mo.  679. 

68.  A  finding  of  facts  showing  that  ac- 
cused was  guilty  of  contempt  as  matter  of 
law  is  necessary  to  support  a  judgment  ad- 
judging one  guilty  of  contempt  for  failure 
to  pay  alimony  and  attorneys'  fees  in  a 
divorce  proceeding.  Hofl'man  v.  Hoffman, 
30:  564,  127  X.  W.  478,  26  S.  D.  34. 

(Annotated) 
Issuance  of  process;   service. 

69.  A  rule  to  show  cause  why  a  person 
shall  not  be  adjudged  guilty  of  contempt 
must  be  served  in  person  on  the  party 
charged.  3Ivlius  v.  McDonald,  10:  1098,  66 
S.  E.  602,  61  W.  Va.  405. 
Complaint;  information. 

70.  The  jurisdiction  of  the  court  is  not 
affected  in  a  contempt  proceeding  by  the 
form  of  title  of  the  petition.  Hughes  v. 
Territory,  6:  572,  85  Pac.  1058.  10  Ariz.  119. 

71.  A  petition  is  not  necessary  for  the 
punishment  of  one  for  violation  of  an  in- 
junction, and  one  filed  cannot  be  objected 
to  if  it  fully  advised  defendant  of  the  charge 
against  him.  Franklin  Union  No.  4  v.  Peo- 
ple, 4:  looi,  77  N.  E.  176,  220  111.  355. 

72.  In  a  proceeding  to  punish  the  viola- 
tion of  an  injunction  against  the  mainte- 
nance of  a  liquor  nuisance,  the  accusation 
need  not  possess  the  formalities  of  an  in- 
dictment or  information;  nor  is  it  neces- 
sary formally  to  plead  or  prove  the  issuance 
of  the  order  of  injunction,  since  the  court 
will  take  judicial  notice  of  it.  State  v.  Por- 
ter, 13:  462,  91   Pac.  1073,  76  Kan.  411. 

73.  An  allegation  upon  information  and 
belief  in  a  contempt  proceeding  is  sufficient 
to  put  accused  to  his  denial.  Hughes  v. 
Territory,  6:  572,  85  Pac.  1058,  10  Ariz.  119. 

74.  Jurisdiction  of  a  contempt  proceed- 
ing is  conferred  by  an  information  under 
the  official  oath  of  the  prosecuting  attor- 
ney and  a  citation  directed  by  the  judge 
to  be  issued  by  the  clerk,  setting  forth  the 
information,  although  the  information  is 
not  specifically  verified  or  supported  by  af- 
fidavit. Poindexter  v.  State,  46:  517,  159 
S.   W.   197,   109   Ark.   179. 

75.  An  objection  to  the  verification  of  an 
information  for  contempt  is  waived  by  a 
plea  of  not  guilty  on  arraignment,  and  is 
not  available  unless  such  plea  is  withdrawn ; 
nor  can  it  be  urged  for  the  first  time  on  a 
motion  for  a  new  trial.  Emery  v.  State, 
9:  1124,  111  N.  W.  374,  78  Neb.  547. 

76.  Failure  to  attach  to  an  information 
charging  contempt  for  violating  an  injimc- 
tion  against  illegal  sale  of  intoxicating 
liquors  an  authenticated  copy  of  the  decree 
alleged  to  have  been  violated  does  not  de- 
stroy the  jurisdiction  of  the  court,  if  the 
statute  does  not  require  such  attachment. 
Haaren  v.  Mould,  24:  404,  122  N.  W,  921, 
144  Iowa,  296. 

Affidavit;   statement. 

77.  A  supporting  affidavit  is  not  neces- 
sary to  a  citation  which  is  timely  made,  to 
show  cause  why  one  shall  not  be  punished 
Digest  1-52  L.R.A.(N.S.) 


for   contempt   committed   in  the   immediate 
view  and  presence  of  the  court.     Lamberson 
V.  Superior  Court,  11:  619,  91  Pac.  100,  151 
Cal.  458. 
Right  to  meet  witnesses. 

78.  The  provision  of  the  Federal  Consti- 
tution entitling  an  accused  to  the  right  to 
be  confronted  by  the  witnesses  against  him 
does  not  apply  to  a  summary  proceeding  to 
punish  one  for  contempt  in  refusing  to  com- 
ply with  an  order  in  bankruptcy.  Cole  v. 
First  Nat.  Bank,  23:  255,  163  Fed.  180,  90 
C.  C.  A    50. 

Appeal. 

Appealability  of  judgment,  see  Appeal  and 

Error,  44. 
Jurisdiction    of    appeal,    see    Appeal    and 

Error,  70. 
Review  of  conviction,  see  Appeal  and  Er- 
ror, 204,  410. 
Scope  of  inquiry  on  appeal  from  conviction, 

see  Appeal  and  Error,  493. 
Review  of  discretion  as  to  judgment,  see  Ap- 
peal and  Error,  576. 
Reversible  error  in  decree,  see  Appeal  and 

Error,  1058. 
Modification  of  order  imposing  fine  for,  see 

Appeal  and  Error,  1585. 
Reducing  punishment  on  appeal,  see  Appeal 

AND  Error,  1603. 

79.  An  appeal  in  a  contempt  proceeding 
is  properly  entitled  the  same  as  in  the  prin- 
cipal proceeding,  where  the  contempt  pro- 
ceeding is  really  but  an  incident  of  the 
original  suit.  Manning  v.  Mercantile  Se- 
curities Co.  30:  725,  90  N.  E.  238,  242  111. 
584. 

IV.  Power  as  to. 

a.  Of  notary  public  or  other  officer. 

(See  also  Contempt,  III  a,  in  Digest  L.R.A. 
1-10.) 

See  also  supra,  70,  74. 

80.  The  right  of  an  officer  before  whom 
a  deposition  is  being  taken,  to  punish  as 
for  contempt  any  person  who  refuses  to 
obey  an  order  to  answer  a  question  or  to 
produce  a  document  is,  under  Ohio  Rev. 
Stat.  1906,  §  5252,  limited  to  cases  in 
which  the  person  may  be  "lawfully 
ordered"  to  obey,  and  does  not  extend  to 
cases  where  the  question  or  document  is  not 
pertinent  to  the  issues  tendered  or  made, 
or  is  not  material  or  necessary  to  make  out 
the  case  of  the  party  calling  for  it,  or  is 
incompetent  or  privileged.  Re  Schoepf, 
6:  325,  77  N.  E.  276,  74  Ohio  St.  1. 

Of  notary  public. 

81.  The  power  of  a  notary  public  before 
whom  depositions  are  being  taken  to 
punish  a  witness  for  contempt  by  imprison- 
ment, upon  the  latter's  refusal  to  obey  a 
subpoena  duces  tecum  to  bring  with  him 
certain  writings,  is  limited  by  Ohio  Rev. 
Stat,  1906,  §  5247,  to  writings  "which  he 
may  be  compelled  to  produce  as  evidence," 
and  by  §  5289  to  evidence  pertinent  to  the 
issue,   in    cases    and    under    circumstances 


606 


CONTEMPT,  IV.  b. 


where  a  party  might  heretofore  have  been 
compelled  to  produce  the  same  by  the  ordi- 
nary rules  of  proceedings  in  chancery.  Re 
Schoepf,  6:  325,  77  N.  £.  276,  74  Ohio  St.  1. 

b.  Of  court. 

(See  also  Contempt,  III.  b,  in  Digest  L.R.A. 
1-10.) 

Effect  of  appeal  from  injunction  order  on 
right  to  punish  for  contempt  in  dis- 
obeying it,  see  Appeal  and  Ebbor,  109. 

Disqualification  of  judge,  see  Judges,  20. 

82.  The  criminal  court  of  appeals,  in- 
dependent of  authority  granted  by  statute, 
has  the  inherent  power  to  enforce  obedience 
to  its  orders  by  contempt  proceedings,  as 
such  power  is  essential  to  the  due  adminis- 
tration of  justice.  State  ex  rel.  Tucker  v. 
Davis.  44:  1083,  130  Pac.  962,  9  Okla.  Grim. 
Rep.  94. 

83.  A  court  with  statutory  power  to 
preserve  and  enforce  order  and  compel 
obedience  to  its  orders,  judgments,  and  de- 
crees has  power  to  punish  for  contempt. 
Hamilton  v.  Plunkett,  35:  583,  70  S.  E.  781, 
136  Ga.  72. 

84.  The  common  law  of  contempt  is  not 
changed  by  a  statute  which  merely  provides 
that  a  person  who  defames  a  court  of  jus- 
tice, or  a  sentence  or  proceeding  thereof,  or 
defames  the  magistrate,  judge,  or  justice  of 
such  court  as  to  an  act  or  sentence  therein 
passed,  shall  be  fined  not  more  than  a  speci- 
fied amount.  State,  Sargent,  Informant,  v. 
Hildreth,  24:  551,  74  Atl.  71,  82  Vt.  382. 

85.  A  statutory  provision  that  certain 
contempts  are  misdemeanors  and  may  be 
punished  as  such  does  not  deprive  the  court 
of  its  common-law  power  to  punish  for  con- 
tempt. Hughes  v.  Territory,  6:  572,  85  Pac. 
1058,    10   Ariz.    119. 

86.  The  power  of  a  court  to  punish  con- 
tempts is  not  taken  r  way  by  a  Code  pro- 
vision that  after  its  adoption  no  act  is  pun- 
ishable except  as  authorized  by  statute  or 
ordinance,  where  another  section  provides 
that  the  Code  shall  not  affect  any  power 
conferred  by  law  \ipon  ^ny  tribunal  to  pun- 
ish for  contempt.  Hughes  v.  Territory, 
6:  572,  85  Pac.  1058,  10  Ariz.  119. 

87.  Jurisdiction  to  hear  a  contempt  pro- 
ceeding which  was  properly  begun  under  the 
statute  by  the  filing  of  the  information  is 
not  destroyed  by  the  fact  that  the  precept 
directs  the  production  of  accused  before  a 
judge,  instead  of  the  court,  for  hearing,  if 
the  hearing  actually  takes  place  before  the 
court.  Haaren  v.  Mould,  24:  404,  122  N.  W. 
921,  144  Iowa,  296. 

88.  In  a  proceeding  brought  to  punish 
a  defendant  for  the  violation  of  an  injunc- 
tion previously  granted  wherein  he  ap- 
peared in  court  and  defended  against  the 
accusation  filed  against  him,  the  power  of 
the  court  to  try  the  defendant  and  to  ad- 
judge punishment  for  a  contempt  is  not 
alTected  by  the  fact  that  he  was  arrested 
under  an  unwarranted  order  issued  by  an- 
other court,  nor  is  it  material  under  the 
Digest  1-52  L.R.A.(N.S.) 


circumstances  whether  or  not  a  preliminary 
order  of  arrest  is  issued  or  an  arrest  in 
fact  made.  State  v.  Meyer,  40:  90,  86  Kan. 
793,  122  Pac.  101. 

89.  Refusal  to  obey  an  injunction  award- 
ed in  vacation  may  be  punished  as  a  con- 
tempt, in  the  vacation  of  the  court,  by  the 
judge  in  whose  court  the  injunction  is  pend- 
ing. State  ex  rel.  Powhatan  Coal  &  C. 
Co.  V.  Ritz,  9:  1225,  56  S.  E.  257,  60  W.  Va. 
395. 

90.  The  dismissal  of  a  bill  for  injunction 
will  not  affect  contempt  proceedings  to  pun- 
ish defendant  for  violating  it.  Weidner  v. 
Friedman,  42:  1041,  151  S.  W.  56,  126  Tenn. 
677. 

91.  A  final  decree  dissolves  a  prelimi- 
nary injunction  which  is  ancillary  to  the 
main  case,  unless  the  same  is  specially  con- 
tinued by  the  decree,  and  thereafter  a  liti- 
gant cannot  be  punished  as  for  a  civil  con- 
tempt for  violation  of  the  preliminary  in- 
junction prior  to  its  dissolution.  Canavan 
V.  Canavan,  51:  972,  139  Pac.  154,  18  X.  M. 
640.  (Annotated) 
FoTO-er    of    magistrate     or    jnstice    of 

peace. 

92.  A  committing  magistrate  has  no 
jurisdiction  to  punish  for  contempt  a  wit- 
ness who  refused  to  obey  a  subpoena  duces 
tecum,.  Farnham  v.  Colman,  i:  1135,  103  N. 
W.   161,  19  S.  D.  342.  (Annotated) 

93.  A  statute  permitting  a  magistrate  to 
punish  a  witness  for  refusal  to  testify  does 
not  authorize  him  to  punish  for  failure  to 
obey  a  subpoena  duces  tecum.  Farnham  v. 
Colman,  i:  1135,  103  N.  W.  161,  19  S.  D.  342. 

( Annotated ) 

94.  Statutes  empowering  justices  of  the 
peace  to  take  depositions  and  to  punish  as 
for  contempt  persons  who  refuse  to  answer 
proper  questions  do  not  violate  a  constitu- 
tional provision  that  the  judicial  power  of 
the  state  shall  be  vested  in  a  supreme 
court,  district  court,  justice  of  the  peace, 
police  magistrate  and  such  other  courts  in- 
ferior to  the  district  court  as  may  be  cre- 
ated by  law  for  cities  and  incorporated 
towns,  and  are  authorized  by  a  constitu- 
tional provision  that  justices  of  the  peace 
shall  have  and  exercise  such  jurisdiction  as 
may  be  provided  by  law.  Ex  parte  Button, 
23:  1 173,  120  N.  W.  203,  83  Neb.  636. 

95.  A  justice  of  the  peace  may  punish 
for  criminal  contempt  under  statutes  pro- 
viding that  specified  persons  may  be  fined 
by  the  court  for  specified  acts,  "or  for  any 
other  contempt,"  and  designating  the  pun- 
ishment which  may  be  inflicted  by  justices 
of  the  peace  for  such  offenses.  McBurnie 
V.  Sullivan,  44:  186,  153  S.  W.  945,  152  Ky. 
686. 

Board  of  police  commissioners. 

96.  A  board  of  police  commissioners  with 
power  to  discharge,  suspend,  or  confine  of- 
ficers and  summon  witnesses  is  a  court 
within  the  meaning  of  a  statute  empower- 
ing every  court  to  preserve  order  in  its 
presence  and  compel  obedience  to  its  de- 
crees. Hamilton  v.  Plunkett,  35:  583,  70 
S.  E.  781,  136  Ga.  72. 

97.  Power    conferred    upon    a   board    of 


CONTEMPT,  V. 


607 


police  commissioners  for  the  punishment  of 
witnesses  who  may  fail  to  appear  in  obedi- 
ence to  summons  does  not  destroy  its  pow- 
er when  sitting  as  a  court,  to  punish  for 
contempt  committed  in  its  presence;  as, 
the  refusal  of  a  witness  to  answer  questions. 
Hamilton  v.  Plunkett,  35:  583,  70  S.  E.  781, 
136  Ga.  72. 

Legislative  poiver  to  interfere  with. 
98.  The  legislature  cannot  deprive  the 
courts  of  the  power,  inherent  in  them  and 
essential  to  their  existence,  of  attaching  for 
direct  contempts  of  their  authority,  or  un- 
due interference  therewith.  Ex  parte  Mc- 
Cown,  2:  603,  51  S.  E.  957,  139  N.  C.  95. 

V.  Judgment;  punishment. 

(See  also   Contempt,  IV.  in  Digest  L.R.A. 

1-10.) 

Appealability  of  judgment  for,  see  Appeal 
AND  Erkor,  44. 

Right  of  parties  to  case  to  review  of  order 
punishing  stranger,  see  Appeal  and 
Eekor,   420. 

Review  of  conviction,  see  Appeal  and  Eb- 
KOK,  204,  410,  493. 

Review  of  discretion  as  to  judgment,  see  Ap- 
peal AND  Ebkor,  576. 

Modification  on  appeal,  of  punishment,  see 
Appeal  and  Error,  1585,  1603. 

Legislative  limitation  of  term  of  imprison- 
ment for  contempt,  see  Constitutional 
Law,  136. 

Due  process  in,  see  Constitutional  Law, 
550,  578. 

Attorneys'  fees  as  element  of  costs  in  case 
of,  see  Costs  and  Fees,  29. 

State  court  following  decisions  of  Federal 
supreme  court  as  to,  see  Courts,  312. 

Review  of  commitment  and  release  from  im- 
prisonment, see  Habeas  Corpus,  54- 
56,  68. 

99.  An  order  adjudging  one  guilty  of  con- 
tempt for  violation  of  an  injunction  is  not 
insufficient  for  failure  to  set  out  the  partic- 
ulars of  the  violation,  if  it  refers  to  the  pe- 
tition and  affidavits  where  such  matters  ap- 
pear. Franklin  Union  No.  4  v.  People, 
4:  looi,  77  N.  E.  176,  220  III.  355. 

100.  Direct  contempts  of  court  may  be 
punished  summarily  by  attachment.  Ex 
parte  McCown.  2:  603,  51  S.  E.  957,  139  N. 
C.  95. 

101.  A  judgment  committing  one  for  con- 
tempt is  void  where  it  imposes  a  term  of 
punishment  in  excess  of  that  allowed  by 
statute.  Creasy  v.  Hall,  41:  478,  148  S.  W. 
914,  243  Mo.  679. 

102.  In  determining  the  punishment  to  be 
imposed  upon  a  disbarred  attorney  for  con- 
tempt in  practising  law,  consideration  will 
be  given  to  his  disclaimer  of  any  intended 
disobedience  of  the  court's  order.  Re  Dun- 
can, 24:  750,  65  S.  E.  210,  83  S.  C.  186. 

103.  A  commitment  of  a  witness  to  a  defi- 
nite term  of  imprisonment  for  contempt  in 
refusing  to  answer  questions  is  invalid 
where  the  statute  authorizes  imprisonment 
until  he  gives  the  required  evidence.  Creasy 
Digest  1-52  KR.A.(N.S.) 


V.  Hall,  41 :  478,  148  S.  W.  914,  243  Mo.  679. 

104.  Where  a  defendant  is  found  guilty 
of  contempt  of  court  in  violating  an  in- 
junction, and  sentenced  to  fine  and  im- 
prisonment, the  court  cannot,  after  the  de- 
fendant has  been  imprisoned  a  short  time 
under  this  sentence,  recall  him  and  resen- 
tence him  to  a  longer  term  notwithstand- 
ing the  attempt  is  made  at  the  term  in 
which  the  original  judgment  was  entered 
and  on  the  same  day;  but  the  first  judg- 
ment is  not  thereby  affected.  State  v. 
Meyer,  40:  90,   86   Kan.  793,   122   Pac.   101. 

( Annotated ) 

105.  The  remedy  for  failure  of  one  who, 
having  appealed  from  a  decree  of  divorce, 
fails  to  comply  with  an  order  requiring 
payment  of  his  wife's  attorneys'  fee,  is  not 
a  proceeding  to  punish  for  contempt,  but  a 
dismissal  of  the  appeal.  Brown  v.  Brown, 
51:  1 1 19,   140   Pac.   829,  —   Wyo.   — . 

(Annotated) 

106.  A  punitive  sentence  appropriate  only 
to  a  proceeding  at  law  for  criminal  con- 
tempt, where  the  contempt  consisted  in  do- 
ing that  which  had  been  prohibited  by  an 
injunction,  could  not  properly  be  imposed 
in  contempt  proceedings  which  were  in- 
stituted, entitled,  tried,  and,  up  to  the 
moment  of  sentence,  treated,  as  a  part  of 
the  original  cause  in  equity.  Gompers  v. 
Buck's  Stove  &  Range  Co.  34:  874,  31  Sup. 
Ct.  Rep.  492,  221  U.  S.  418,  55  L.  ed.  797. 

(Annotated) 

107.  A  court  has  no  power  to  strike  out 
and  disregard  depositions  filed  by  a  defend- 
ant in  defense  of  a  suit  for  divorce,  for 
failure  to  pay  money  required  of  him  to  en- 
able his  wife  to  prosecute  her  suit  and  for 
temporary  alimony,  and  pass  final  decree  of 
divorce  against  him  since  such  decree  is  not 
due  process  of  law.  Trough  v.  Trough, 
4:  1 185,  53  S.  E.  630,  59  W.  Va.  464. 

(Annotated) 
Fine. 
Modification   on   appeal,   of  order   imposing 

fine,  see  Appeal  and  Error,  1585. 
Against  corporation,  see  Corporations,  116. 

108.  A  fine  should  be  the  sole  punishment 
in  a  civil  proceeding  for  the  violation  of  an  ' 
injunctional  order  against  picketing,  where 
no  actual  money  loss  to  complainant,  be- 
cause of  the  acts  of  accused,  is  shown.  Vil- 
ter  Mfg.  Co.  v.  Humphrey,  13:  591,  112  N. 
W.  1095,  132  Wis.  587. 

109.  One  thousand  dollars  is  not  an  ex- 
cessive fine  to  impose  on  a  labor  union  for 
violation  of  an  injunction  restraining  inter- 
ference with  the  business  of  former  employ- 
ers of  members  on  a  strike,  where  the  viola- 
tion is  flagrant  and  often  repeated.  Frank- 
lin Union  No.  4  v.  People,  4:  1001,  77  N.  E. 
176,  220  111.  355. 

Imprisonment  for  debt. 

110.  A  commitment  for  contempt  for  wil- 
ful refusal  to  obey  an  order  to  pay  suit 
money  and  temporary  alimony  pending  a 
divorce  suit  is  not  an  unconstitutional  im- 
prisonment for  debt.  Ex  parte  Davis,  17: 
1 140,   111    S.   W.   394,   101   Tex.   607. 

(Annotated) 

111.  Statutory  authority  to  punish  by  im- 


608 


CONTESTS— CONTINUANCE  AND   ADJOURNMENT,  II. 


prisomnent  disobedience  of  and  order  for 
payment  of  alimony,  made  in  any  suit  for 
divorce,  does  not  extend  to  the  authoriza- 
tion of  such  punishment  for  noncompliance 
with  a  decree  directing  payment  of  money 
due  under  a  foreign  decree  for  alimony. 
Mayer  v.  Mayer,  19:  245,  117  N.  W.  890,  154 
Mich.  386. 


CONTESTS. 


Between  rival  nominating  conventions, '  see 

Elections,  162. 
Election  contests,  see  Elections,  V. 
Estoppel  to  contest  right  to  collect  tolls  on 

county  bridge,  see  Estoppel,  13. 
Of  mining  claim,  see  Mines,  I.  c. 
Of  title  to  office,  see  Ofeicebs,  I,  f. 
Of  will,  see  Wills,  I.  e. 


CONTINGENCY. 


Power   to  dispose  of,  by  will,   see  Wills, 
192. 


CONTINGENT  ESTATE. 

As  asset  in  bankruptcy,   see  Bankbuptcy, 

41-43. 
Creation  of,  by  will,  see  Wills,  III.  g,  9. 


CONTINGENT  FEE. 

Contract  of  attorney  for,  see  Attorneys,  60- 
62,  76,  78,  81,  83-86;  Champekty  and 
Maintenance,  7,  8;  Contracts,  254, 
328,  409. 


CONTINGENT  INTEBESTS. 

Right  of  trustee  in  bankruptcy  to  contingent 

interest  of  beneficiary  under  will,  see 

Bankruptcy,  41-43. 
Cutting  oflF,  see  Constitutional  Law,  60, 

61. 
Creditors'  bill  to  reach,  see  Cbeditobs'  Bill, 

16,  17. 
Under  will,  see  Wills,  III.  g,  9. 
See  also  Contingent  Remainders. 


CONTINGENT   UABILITY. 

Of  insurer  as  bar  to  action  by  insured  for 
premiums  paid,  see  Insurance,  443. 


CONTINGENT   LIMITATION, 

Validity  of,  see  Perpetuities. 
Digest   1-52  I<.R.A.(N.S.) 


CONTINGENT   REMAINDEB. 

Cutting  off,  by  merger  of  life  estate  in  fee, 

see  Life  Tenants,  1. 
See  also  DEBa)s,  II.  e,  4;  Wills,  III.  g,  9,  b. 


CONTINGENT  BESULTS. 

Opinion  evidence  as  to,  see  Evidence,  VII. 


CONTINUANCE  AND  ADJOUBN- 
MENT. 

1.  In  general. 
II.  Grounds  for,  1—13. 
III.  Affidavits   for. 
IV.  Effect  of  admission. 

Of  appeal,  see  Appeal  and  Error,  VI.  d. 

Review  of  discretion  as  to  granting  or  refus- 
ing motion  for,  see  Appeal  and  Error, 
VII.  i,  2. 

Prejudicial  error  as  to,  see  Appeal  and 
Error,    1052,   1053,    1179. 

In  criminal  case  to  permit  accused  to  apply 
for  pardon,  see  Criminal  Law,  152. 

Admissibility  in  evidence  at  trial  of  ad- 
mission by  attorney  for  accused  at  pre- 
liminary hearing  to  prevent  continu- 
ance, see  Evidence,  1254. 

Presumption  of  continuance  generally,  see 
Evidence,  II.  g. 

Presumption  of  continuance  of  agent's  au- 
thority, see  Mortgage,  61. 

Continuance  of  preliminary  and  inter- 
locutory injunction,  see  Injunction, 
418-422. 

Application  for  change  of  venue  for  purpose 
of  getting,  see  Venue,  26. 

I,  In  general. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 

II.  Grounds  for. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  Refusal  to  grant  a  continuance  upon 
allowing  an  amendment  to  the  declaration 
is  not  error  if  the  amendment  introduced 
no  new  issue,  but  merely  made  the  pleading 
conform  to  the  evidence.  Wabash  R.  Co.  v. 
Campbell,  3:  1092,  76  N.  E.  346,  219  111.  313. 

2.  Upon  amendment  of  a  declaration 
pending  trial  so  as  to  call  for  a  different 
line  of  defense,  supported  by  additional  tes- 
timony, to  the  surprise  of  defendant,  he 
should  be  allowed  a  continuance  sufficiently 
long  to  secure  the  testimony  needed.  Ger- 
kin  V.  Brown  &  Sehler  Co.  48:  224,  143  N. 
W.  48,  177  Mich.  45. 

3.  The  omission  of  the  name  of  a  use- 
plaintiff  to  whorn  a  judgment  for  the  kill- 
ing of  plaintiff's  cliild  had  been  assigned 
before  its  reversal,  when  amending  the  com- 


CONTINUANCE  AND  ADJOLKXMENT,  III.— CONTINUING;   TRESPASS.     609 


plaint  so  as  to  add  the  name  of  the  child's 
mother  as  a  coplaintiff,  is  not  ground  for 
continuance  in  defendant's  favor  on  the 
ground  of  surprise,  since  the  presence  or 
absence  of  tlie  use-plaintiil"  is  iuinuiterial  to 
defendant.  Bracken  v.  Pennsylvania  R. 
Co.  34:  790,  71  Atl.  926,  222  Pa.  410. 

4.  The  mere  dismissal  as  to  one  of  two 
joint  tort  feasors,  of  an  action  to  hold 
them  liable  for  a  death  due  to  their  wrong- 
ful acts,  does  not  entitle  t!u-  other  to  a 
continuance  as  matter  of  riglit.  Louisville 
V.  Schneider,  35:  207,  136  S.  \V.  212,  143  Kv. 
171. 

To  secure  evidence. 

5.  The  court  may  grant  a  continuance 
to  permit  the  securing  of  a  copy  of  a  con- 
tract, proof  of  which  is  necessary  to  tiie  de- 
cision of  the  case,  where  objection  is  made 
to  its  proof  by  parol  evidence.  Sholin  v. 
Skamania  Boom  Co.  2C:  1053,  105  Pac.  632, 
56  Wash.  303. 

6.  Refusal  to  adjourn  a  trial  to  permit 
an  examination  of  defendant's  wife  by  phy- 
sicians not  residing  at  the  county  seat  is 
not  error  in  a  prosecution  for  perjury  in 
testifying  as  to  her  malformation  as  a 
giound  for  divorce,  where,  with  knowledge 
of  the  evidence  against  him,  accused  had  six 
months  in  wliicli  to  secure  the  examination, 
and  announced  himself  ready  for  trial  and 
closed  his  case  M'ithout  requesting  the  ex- 
amination until  the  time  set  for  argument. 
Edwards  v.  State.  49:  563,  160  S.  W.  709, 
71  Tex.  Crim.  Rep.  417. 

7.  The  trial  court  may  properly  con- 
tinue a  personal  injury  case  because  of  the 
refusal  of  the  injured  party  to  submit  to 
an  X-ray  examination  by  a  physician  ap- 
pointed by  the  court  under  statutory  au- 
thority, when  such  an  examination  is  con- 
sidered necessary.  State  ex  rel.  Carter  v. 
Call,  41:  1071,  59  So.  789.  64  Fla.  144. 
Absence  of  Tritness. 

Prejudicial  error  as    to,    see    Appeai,    and 
Error,  1052,  179. 

8.  No  legal  ground  for  a  continuance 
is  shown  where  an  application  for  a  con- 
tinuance of  a  criminal  trial,  on  the  ground 
of  absence  and  unknown  witnes.ses,  and  the 
further  ground  that  counsel  for  the  defend- 
ant had  not  had  time  to  prepare  the  defense 
and  procure  the  evidence  in  question,  does 
not  state  the  name  of  any  absent  witness 
who  might  be  obtained,  nor  any  facts  which 
could  be  proved  by  any  unknown  witness 
in  the  event  the  case  should  be  continued, 
and  it  is  shown  that  a  previous  continuance 
of  thirty  days  had  been  granted,  and  the 
coimsel  had  failed  to  obtain  the  necessary 
evidence.  Edwards  v.  State,  44:  701,  131 
Pac.  956,  9  Okla.  Crim.  Rep.  306. 

9.  A  continuance  to  secure  the  presence 
of  witnesses  to  testify  to  their  nationality 
should  not  be  granted  because  their  child 
is  oft'ered  as  a  witness  to  prove  that  fact, 
where  there  is  nothing  to  show  that  their 
testimony  would  differ  from  that  of  the 
child,  or  that  diligence  has  been  used  in 
attempting  to  secure  their  testimony  sooner. 
State  v.  Rackich,  37:  760,  119  Pac.  843,  66 
Wash.  390. 
Digest  1-52  I..R.A.(N.S.) 


10.  A  further  continuance  should  not  be 
granted  because  of  the  illness  of  a  non- 
resident defendant  having  knowledge  of  the 
facts  necessary  to  the  defense,  so  that  he 
will  not  be  able  to  attend  the  trial  or  give 
his  deposition,  if  the  case  has  been  contin- 
ued for  a  year  on  that  ground  and  there 
is  nothing  to  show  that  he  will  ever  be  any 
better.  Rose  v.  Monarch,  42:  660,  150  S.  VV. 
56,  150  Ky.   129.  (Annotated) 

11.  One  accused  of  crime  cannot  be 
forced  into  trial  in  the  absence  of  his  wit- 
nesses, where  the  Constitution  guarantees 
him  the  right  to  call  for  evidence  in  his 
!'a\<>r,  upon  the  theory  that  they  will  be 
summoned  and  examined  if  they  shall  ar- 
rive before  verdict,  and,  if  not,  that  their 
testimony  may  be  made  the  basis  of  a  mo- 
tion for  new  trial.  Cremeans  v.  Com.  2: 
721,  52  S.  E.  362,  104  Va.  860. 

(Annotated) 

12.  Proof  of  reasonable  but  futile  dili- 
gence to  procure  the  attendance  or  testi- 
mony of  a  witness  about  a  year  before  the 
trial,  and  for  about  a  week  preceding  the 
trial,  without  evidence  of  diligence  between 
such  dates,  is  not  sufficient  ground  for  a 
continuance.  Armour  &  Co.  v.  Kollmeyer, 
16:  mo,  161  Fed.  78,  88  C.  C.  A.  242. 

13.  Proof  of  due  diligence  to  procure  the 
attendance  or  the  testimony  of  an  absent 
witness,  and  of  facts  which  present  reason- 
able grounds  to  believe  that  his  attendance 
or  evidence  will  be  secured  at  the  next  term, 
is  essential  to  the  right  of  the  moving  party 
to  a  continuance.  Armour  &  Co.  v.  Koll- 
meyer, 16:  mo,  161  Fed,  78,  88  C.  C.  A. 
242. 

///.  Affidavits  for. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 

IV.  Effect  of  admission. 
(See  same  heading  in  Digest  L.R.A.  1-10.) 


CONTINUING  CRIME. 


See  Criminal  Law,  19-23. 


CONTINUING  GUARANTY. 

See  GuAKANxy,  23,  37-42. 


See 


CONTINUING  NUISANCE. 

Joint  Creditors  and  Debtors,  18; 
NxnsANCE,  121,  134,  135;  Trespass, 
14. 


CONTINUING  TRESPASS. 


See  Trespass,  14. 
39 


610 


CONTINUING  TRufeT— CONTRACTS. 


CONTINUING  TRUST. 

See  Trusts,  12. 


CONTINUITY. 


Of  adverse  possession,  see  Advebse  Posses- 
sion, 87,  88. 


CONTRABAND. 


Right  of  carrier  to  demand  inspection  when 
article  suspected  to  be  contraband  is 
tendered,  see  Carriebs,  786. 


CONTRACT   LABOR  LAW. 

Action  to  recover  penalty  for  violation  of, 
see  Action  or  Suit,  63;  Evidence, 
1401,  2354;  Trial,  779. 


CONTRACTORS. 


Bonds  of  generally,  see  Bonds,  8-31. 

Prematurity  of  suit  on  bond  of,  see  Action 
or  Suit,  9. 

Validity  of  statute  as  to  nature  of  bonds  to 
be  taken  from,  see  Constitutional 
Law,  365,  456;  Statutes,  22. 

Oral  contract  to  become  surety  for  building 
contractor,  see  Contracts,  233. 

Parol  evidence  as  to  intention  of  sureties  on 
bond  of,  see  Evidence,  980. 

Who  may  maintain  action  on  bond  of,  see 
Parties,  85-88. 

Rights  and  liability  of  surety  on  bond  of, 
see  Principal  and  Surety,  9,  10,  20- 
23,  39,  40. 

Contribution  between  sureties  on  bond,  see 
Principal  and  Surety,  73,  74. 

Admissions  by  huilding  contractor,  see  Ad- 
missions. 

Effect  of  bankruptcy  on  right  of  material- 
man to  enforce  lien  against  property 
of  bankrupt,  see  Bankruptcy,  141. 

Acceptance  of  bid  by,  with  notice  of  mistake 
as  to  subject-matter,  see  Contracts, 
125;  Notice,  13. 

Promise  of  owner  to  pay  subcontractor  on 
failure  of  contractor  to  do  so,  see  Con- 
tracts, 225. 

Construction  generally  of  contract  with 
building  contractor,  see  Contracts,  II. 
d,  4. 

Measure  of  damages  where  contractor  has 
been  delayed  in  collection  of  amount 
due  him  on  contract,  see  Damages,  103. 

Burden  of  showing  that  claims  against  con- 
tractor paid  by  property  owner  were 
justly  due,  see  Evidence,  644. 

Liability  of,  for  injuries  on  highways,  see 
Highways,  IV.  b,  4.    , 

Effect  as  to  lumber  company  of  personal 
judgment  against  contractor  in  action 

Digest  1-52  L.R.A.(N.S.) 


against  both  to  recover  price  of  services 
in  getting  out  logs  and  to  enforce  lien, 
see  Judgment,  159. 

Liability  of  township  trustees  failing  to 
provide  for  collection  of  taxes  to  pay 
contractor,  see  Judgment,  232. 

Owner's  liability  for  injury  to  servant  of, 
see  Master  and  Servant,  478. 

Liability  for  negligence  of,  see  Master  and 
Servant,  III.  b. 

Liability  of,  for  negligence,  see  Master  and 
Servant,    1057-1064. 

Liability  of  subcontractor  for  tort  of  serv- 
ant causing  injury  to  employee  of  gen- 
eral contractor,  see  Master  and  Serv- 
ant, 473-475. 

Contractor  as  laborer  entitled  to  lien,  see 
Mechanics'  Liens,  23,  38. 

Lien  of  subcontractors,  see  Mechanics' 
Liens,  VI. 

Injury  to,  by  defects  in  building  existing  at 
time  he  commenced  work,  see  Negli- 
gence, 96. 

Liability  for  nuisance,  see  Nuisances,  123. 

Personal  liability  to,  of  public  officer  making 
contract,  see  Officers,  100,  101; 
Towns,  13-15. 

Individual  liability  of  officers  who  fail  to 
take  bond  from  contractor,  see  Offi- 
cers, 109,  110. 

As  necessary  parties  to  suit  to  set  aside 
assessment,  see  Parties,  157. 

For  public  improvement,  city's  liability  to, 
see  Public  Improvements,  17-19.' 

Provision  for  repairs  in  contract  for  public 
improvement,  see  Public  Improve- 
ments, 21-24. 

Right  of  subcontractor  assisting  in  con- 
struction of  bridge  embankment  to  re- 
cover for  injuries  therefrom,  see  Rail- 
roads, 303. 

Liabilit}'  of  contractor  not  entitled  to  use 
union  label  for  use  of  label  on  work,  see 
Trademarks,  24. 

Right  to  maintain  action  of  trespass,  see 
Trespass,  19. 

See  also  Building  and  Construction  Con- 
tracts. 


CONTRACTS. 


I.  Nature,    form,    and    requisitea,    1— 
338. 
a.  In  general,  1—3. 
T>.  Implied  agreements,  4—50. 

c.  Consideration,   51—123. 

1.  Necessity ;  lack  of,  51— SO. 

2.  Sufficiency,   51—123. 

d.  Meeting     of    minds;     deftnite" 

ness,  124—192. 

1.  In  general,  124—128. 

2.  Mutuality,   129— 150. 

3.  Definiteness,    151—159. 

,.,    ;  .       4.  Offers    and    their    acoept- 
■'.(J   U;  ance  or  withdrawal,  160— 

192. 

e.  Form,al    requisites;    statute    of 

frauds,  193—335. 
1.  In  general;  personal  prop^ 
erty,  193— 2  lO. 


CONTRACTS. 


611 


J.  e. — continued. 

2.  Collateral  contracts,  debts 
of  others,  211—233. 
'^'  3.  Not  to  he  performed  with- 

in year,  234—246. 

4.  Contracts     as     to     realty, 

247-277. 

5.  Sufficiency  of  writing,  27S— 

303. 

a.  In  general,  278—287. 

b.  Execution,    288—295. 

c.  Memorandum,        296— 

303. 

6.  Effect     of    fraud    of    part 

performance,       304— 
335. 

a.  In  general,  304—317. 

b.  Contracts    relating    to 

real    property,     318— 
335. 

f.  Incorporating    extrinsic    docu- 

ment,  336. 

g.  Merger,  337,  338. 
II.  Construction,    339—404. 

a.  In  general,  339—352. 
ft.  Entirety,  353—356. 

c.  Time,  357. 

d.  Particular  words,  phrases  and 

cases,  358—404. 

1.  Miscellaneous,   358—373. 

2.  As  to  transfer  of  property, 

374-382. 

a.  Real     property,     374— 

379. 

b.  Personal   property, 

380-382. 

3.  Other  agreements  relating 

to  land  or  tvater,  383, 
384. 

4.  For  services;  construction 

of     buildings     or    works, 
385-404. 
III.  Validity  and  effect,   405-619. 
a.  In  general,  405—411. 
ft.  Illegal    by    express    provision, 

412-424. 
C.  Public  policy,   425—529. 

1.  In   general,    425—497. 

2.  Contracts  against  liability, 

498-502. 

3.  As     to     corporations     and 

associations,    503—512. 

4.  Affecting      official     action, 

513-518. 

5.  Contracts  of  public  officers 

or  contracts  in  uihir;h 
they  are  interested,  519— 
529. 

d.  Gambling     and      wager     con- 

tracts,  530—534. 

e.  In    restraint    of    trade,     535— 

558. 

1.  In  general,    535—543. 

2.  To  refrain  from   business, 

544—558. 

f.  Ratification;   validating,    559— 

562. 

g.  Remedies;  proceeds  of  unlatv- 

ful  contract,   563—619. 

1.  In  general,    563—594. 

2.  Contracts     against     public 

policy,  595—619. 
Digest   1-52  L.R.A.(N.S.) 


IV.  Performance;  breach,  620—702. 
a.  In  general,  620—625. 
ft.  Excuse  for  failure  of  perform- 
ance,  626—641. 

1.  In  general,    626—630. 

2.  Impossibility    of    perform- 

ance; inevitable  accident, 
631—637. 

3.  Prevention    or    hindrance 

by  other  party,  638— 641 . 

c.  Incomplete  performance ;  suffi- 

ciency    of     performance, 
642-668. 

1.  Right  of  recovery  on  part 

performance,   642—653. 

2.  Sufficiency      of      perform- 

ance,   654—662. 
8.  Acceptance;  waiver  of  ob- 
jections,   663—668. 

d.  Condition;    estimates;    certifi- 

cate   of    performance,     669— 
685. 

e.  Breach    and    its    effect,     686— 

702. 

f.  Time. 

V.  Change   or   extinguishment,    703— 
770. 
a.  In  general,    703— 7 lO. 
ft.  Termination;  repudiation; 

abandonment,    711— 728a. 
C.  Rescission;   cancelation,    729— 
770. 

1.  In  general,    729—732. 

2.  Conditions;       promptness; 

restoring    benefits,    733— 
738. 

3.  Grounds  of,   739— 770. 
VI.  Actions;   liabilities,    771—782. 

a.  In  general,  771—773. 
ft.  Defenses,  774—782. 
VII.  Public  contracts,   783—807. 
a.  In  general,  783—790. 
ft.  Advertisements  and   bids;   let- 
ting,  791-807. 

Contract  of  accord  and  satisfaction,  see  Ac- 
cord AND  Satisfaction. 

Accounting  as  to,  see  Accounting. 

Whether  action  one  on  contract  or  in  tort, 
see  Action  or  Suit,  73-85. 

Liability  in  tort  of  one  negligently  perform- 
ing, see  Action  or  Suit,  81. 

Joinder  of  causes  of  action  on,  see  Action 
or  Suit,  107,  111,  113. 

Joining  cause  of  action  in  tort  with  cause  of 
action  on  contract,  see  Action  oe  Suit, 
111. 

Alteration  of  written  contract,  see  Alter- 
ation OF  Instruments,  1. 

Review  of  finding  as  to  existence  or  non- 
existence of,  see  Appeal  and  Error, 
977,  978. 

Provision  in,  for  arbitration,  see  Arbitra- 
tion, 1-3. 

Assignment  of,  see  Assignment,  12-18,  22- 
25,  27,  30. 

Assignability  of  right  to  balance  due  under 
contract  for  public  work,  see  Assign- 
ment, 26, 

Recovery  of  money  paid  by  mistake  to  ob- 
tain release  from,  see  Assumpsit,  41- 
43. 


612 


CONTRACTS., 


Contract  of  bailment,  see  Bailment.         , 

Kight  of  one  in  possession  of  anotlier'a  prop- 
erty to  appropriate  it  to  an  executory 
contract  with  the  latter,  see  Bailment, 
3. 

Right  of  trustee  in  bankruptcy  to  set  aside, 
see  Bankbuptcy,  67. 

Agreement  of  member  of  benefit  association 
to  be  bound  by  subsequently  enacted 
by-laws,  see  Benevolent  Societies,  12. 

With  passenger,  see  Cakriebs,  II.  m. 

To  furnish  cars,  see  Carkiers,  III.  li. 

As  to  chattel  mortgages,  see  Chattel  Mort- 
gages. 

As  to  compromise  and  settlement,  see  Coii- 

PBOMISE    AND    SETTLEMENT. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  I.  b. 

Interference  with,  by  labor  organization,  sec 
Conspiracy,  IV. 

Imprisonment  of  laborer  violating  farm 
labor  contract,  see  Constitutional 
Law,  335;  Imprisonment  fob  Debt,  7, 
8;   Peonage. 

Restrictions  on  right  of,  see  Constitution- 
al Law,  II.  b,  4,  b. 

Police  restrictions  on,  see  Constitutional 
Law,  II.  c,  4.  ,i.     ,, 

lmj)airing  obligations  of,  see  .Constitu- 
tional Law,  II.  g. 

Of  corporation  generally,  see  Corporations, 
IV.  d. 

Enforcement  of  contract  of  corporation  in- 
corporated in  several  states,  see  CoBPO- 
eations,  9,  10. 

Personal  liability  of  officer  on  contract  of 
corporation,  see  Corporations,  159,  160, 
166. 

By  corporation,  on  sale  of  business,  not  to 
re-engage  therein;  effect  on  officers  and 
stockholders,  see  Corporations,  253. 

l-^ffect  of  consolidation  of  corporation  on,  see 
Corporations,  II. 

For  purchase  of  corporate  stock,  see  Corpo- 
rations, V.  C. 

By  county,  see  Counties,  II.  d. 

As  to  covenants,  see  Covenants  and  Con- 
ditions. 

Right  of  creditors  to  reach  interest  of  man 
under  contract  for  his  support,  see 
Creditors'  Bill,  19.  20. 

Effect  of  custom  on,  see  Custom. 

Measure  of  damages  as  to,  see  D.\mages, 
III.  a. 

For  separate  support  and  maintenance,  see 
Divorce   and   Separation,   VIII. 

Effect  of  remarriage  on  contract  as  to  al- 
lowance to  wife,  after  divorce,  see  Di- 
vorce AND  Separation.  162. 

Power  of  equity  to  compel  renewal  of,  see 
Equity,  69. 

Fraud  in  misreading  contract  to  other  par- 
ty, see  Estoppel,  182. 

Estoppel  by,  see  Estoppel,  III.  d. 

SuflRciency  of  evidence  to  show  incapacity 
of  one  of  contracting  parties,  see  Evi- 
dence, 324,  2222. 

Parol   evidence   of    lost    contract,    see    Evi- 

,         dence,  706. 

Admissibility  of  receipted  bill  to  show  exist- 

'         ence  of  contract,  see  Evidence,  874. 

Digest  1-52  I..R.A.(N.S.') 


Agreement  that  rent  may  be  liquidated  by 
giving  note,  as  collateral  agreement,  see' 
Evidence,  94.S. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  II.  k. 

Evidence    as    to    generallv,    see    Evidence, 

XI.  o. 

Sufficiency  of  evidence  as  to,  see  Evidence, 

XII.  i. 

Power  of  municipality  to  regulate  gas  rates 
by,  see  Gas,  III.  b. 

Of  guaranty,  see  Guaranty. 

Of  Indians,  see  Indians. 

Injunction  to  protect  contract  rights,  see 
Injunction,  I.  b. 

As  to  insurance  contract,  see  Insurance, 
III. 

Limiting  time  to  sue  on  policy,  see  Insur- 
ance, VI.  h,  3. 

Judgment  in  action  on  contract  as  bar  to 
action  on  quantum  meruit,  see  Judg- 
ment, 190. 

Conclusiveness  of  judgment  in  action  pn,  see 
Judgment,  II.  d,  G. 

Of  judge  to  return  salary,  if  statute  under 
which  paid  is  declared  unconstitutional, 
see  Judges,  27. 

As  to  bidding  off  projierty  at  judicial  sale, 
see  Judicial  Sale,  7. 

What  changes  contract  from  an  executed  to 
an  executory  one,  see  Landlord  and 
Tenant,  12. 

As  to  when  statute  of  limitations  begins  to 
run,  see  Limitation  of  Actions,  II.  b. 

When  action  is  barred,  see  Limitation  of 
Actions,  III.  b. 

As  to  compensation  of  employee,  see  Mas- 
ter AND  Servant,  I.  c. 

As  to  mortgages,  see  Mortgage. 

Effect  of  foreclosure,  on  contract  with  water 
company,  see  Mortgage,  90. 

Liability  of  purchaser  of  railroad  at  fore- 
closure sale  on  contracts  of  company, 
see  Mortgage,  136. 

Liability  of  seller  or  mantifacturer  for  in- 
jury due  to  defects  in  things  Sold  or 
manufactured,  see  Negligence,  I.  b,  2. 

Ratification  by  principal  of  agent's  attempt 
to  modify  contract,  see  Notice,  44. 

.As  to  novation,  see  Novation. 

Waiver  by  father  of  his  rights  under  con- 
tract made  for  benefit  of  child,  see 
Parent  and  Child,  5. 

For  partnership,  see  Partnership. 

Power  of  partners  respecting,  see  Partner- 
ship, 25,  26. 

Assumption  of,  see  Pleading,  55. 

Pleading  as  to,  see  Pleading,  II.  h. 

Effect  of,  to  create  relation  of  principal  and 
agent,  see  Principal  and  Agent,  3. 

Agent's  authority  as  to,  see  Principal  and 
Agent,  II. 

Liabilitv  of  agent  on,  see  Principal  and 
Agent,  108-112. 

Action  against  sureties  upon  void  contract 
by  foreign  corporation,  see  Principal 
AND  Surety,  5. 

Release  of  surety  by  change  of,  see  Princi- 
pal AND  Surety,  36-42. 

Record  of.  see  Records  and  Recording 
Laws. 


CONTRACTS,  1.  a,  b. 


t)13 


Reformation  of,  see  Rki-xjrmation  of  In- 
struments. 

Of  sale,  see  Sai^e. 

Unlawful  interference  with,  by  rule  for- 
bidding teachers  to  wear  religious  garb, 
see  Schools,  25. 

Set-off  of  claim  in  contract  against  claim  in 
tort,  see  Set-Off  axd  Counterclaim, 
42. 

Specific  performance  of,  see  Specific  Per- 
formance. 

Of  state,  see  State. 

Treating  contract  for  sale  of  land  as  real 
estate  for  purpose  of  taxation,  see 
Taxes,  .33. 

As  to  delivery  of  telegram,  see  Telegraphs, 
'TI. 

Question  for  jury  as  to  existence  of  insur- 
ance contract,  see  Trial,  645. 

Between  state  and  publishing  company  for 
publication  of  state  reports  as  creat- 
ing fiduciary  relation,  see  Trusts,  55. 

Individual  liabilitj'  oi  trustee  on,  see 
Trusts,  120. 

Of  United  States,  see  United  States,  VI. 

For  purchase  of  land,  see  Vendor  and  Pur- 
chaser. 

As  to  water  rights,  see  Watf>rs,  II.  j. 

/.  Nature,  form  and  requisites, 
a.  In  general. 

(See    also    same   heading    in   Digest    L.R.A. 

1-10.) 

1.  An  agreement  to  make  a  contract 
in  the  future  is  not  binding  unless  all  the 
terms  and  conditions  are  agreed  upon,  and 
nothing  is  left  to  futin-e  negotiations.  St. 
Louis  &  S.  F.  R.  Co.  v.  Gorman,  28:  637,  100 
Pac.  647,  79  Kan.  643. 

Parties. 

By  corporation,  see  Corporations,  IV.  d. 

By  county,  see  Counties,  II.  d. 

Power  of  married  woman  to  contract,  see 
Husband  and  Wife,  I.  b,  2. 

Contracts  between  husband  and  wife,  see 
Husband  and  Wife,  II.  e. 

Antenuptial  contract,  see  Husband  and 
Wife,  II.  i. 

By  insane  persons,  see  Incompetent  Per- 
sons, II. 

By  infant,  see  Infants,  I.  d,  2. 

By  agent,  see  Principal  and  Aoent. 

By  receiver,  see  Receivers,  IT. 

By  religious  society,  see  Ret.igious  Socie- 
ties, VII. 

As  to  mental  capacity  to  make  wills,  see 
Wills,  I.  d. 

2.  The  mere  signing  of  one's  name  to 
a  contract  does  not  make  him  a  party  there- 

"to,  if  the  contract  states  that  it  is  between 
other  parties,  and  the  person  so  signing  is 

.not  mentioned  therein.  Shriner  v.  Craft, 
28:  450,  51    So.    884,    I6G  Ala.    14G. 

3.  Tlie  contract  for  the  sale  of  cattle 
is  between  the  principal  and  the  owner  of 
the  cattle,  where  the  owner,  after  negoti- 
ating for  the  sale  thereof  with  an  agent, 
telegraphed  the  agent's  principal,  asking 
if  the  agent's  draft  for  a  stated  amount  for 
Digest  1-52  L.R.A.(N.S.) 


the  cattle  would  be  honored,  and  the  princi- 
pal replied  that  the  draft  would  be  honored 
as  per  terms  stated  in  the  telegram  if  the 
cattle  were  billed  to  him,  so  as  to  prevent 
recovery  from  the  principal  of  a  different 
price  from  that  stated  in  the  telegram  de- 
livered to  him,  although  another  price  had 
been  agreed  upon  by  the  agent,  and  the 
price  quoted  to  the  principal  differed  there- 
from because  of  the  negligence  of  the  tele- 
grapli  company.  Strong  v.  Western  U. 
Teleg.  Co.  30:  409,  109  Pac.  910,  18  Idaho, 
389. 

h.  Implied  agreements, 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Of  warehousemen  to  exercise  reasonable 
care,  see  Action  or  Suit,  ]07. 

Suing  on  express  contract  under  one  count 
and  implied  contract  under  other  count, 
see  Action  or  Suit,  107. 

By  assignee  of  contract  to  indemnify  assign- 
or for  loss  caused  by  assignee's  default, 
see  Assignment,  25. 

To  pay  for  animals  negligently  driven  in 
front  of  railroad  train,  see  Attach- 
ment, 8. 

Implied  contract  raised  by  warranty,  see 
Bankruptcy,  115. 

To  jjay  indebtedness  discharged  in  bank- 
ruptcy, see  Bankruptcy,  159. 

That  carrier  agreeing  with  shipper  to  stop 
goods  in  transit  and  return  them  to 
shipper  will  return  them  safely,  see 
Carriers,  973. 

As  to  time  for  presenting  check,  see  Checks, 
11. 

Implied  covenant  or  condition,  see  Cove- 
nants and  Conditions,  14-19;  Land- 
lord AND  Tenant,  II.  b,  2. 

Measure  of  recovery  on,  see  Damages,  100, 
104,  119. 

Estoppel  to  recover  on,  see  Estoppel,   146. 

That  city  may  regulate  gas  rates,  see  Gas, 
23. 

Implied  exemption  from  municipal  taxation, 
see  Municipal  Corporations,  494. 

That  land  in  name  of  one  partner  shall  be 
partnership  property,  see  Partnership, 
43. 

To  pay  for  emergency  services  rendered  by 
surgeon,  see  Physicians  and  Surgeons, 
35. 

Pleading  in  action  on,  see  Pleading,  230, 
231. 

Extending  by  implication  to  purchaser  rem- 
edy other  than  that  specified  in  con- 
tract, see  Sale,  98. 

Implied  warranty,  see  Sale,  II. 

To  remove  standing  timber  within  certain 
time,  see  Timber,  6,  8-10. 

Implied  tsust,  see  Trusts,  I.  d. 

See  also  infra,  57,  705. 

4.  Custom  cannot  create  a  contract 
where  none  otiierwise  exists.  Thomas  v. 
Guarantee  Title  &  T.  Co.  26:  1210,  91  N.  E. 
183,  81  Oliio  St.  4.32. 

5.  No    implied    obligation    to    share    in 


«14 


CONTRACTS,  I.  b. 


the  cost  of  a  partj  wall  arises  upon  the 
use  of  it  by  the  owner  of  one  of  the  lots  on 
which  it  stands.  Hawkes  v.  HoflFman,  24: 
1038,  105  Pac.  156,  56  Wash.  120. 

6.  The  mere  use  of  a  patented  article, 
even  with  knowledge  of  the  patentee,  raises 
no  implied  promise  to  pay  royalties  there- 
on. May  V.  Western  Lime  Co.  44:  333,  118 
Pac.  895,  65  Wash.  696.  (Annotated) 

7.  Ordinarily,  there  is  an  implied  agree- 
ment on  the  part  of  the  vendor  in  every 
contract  for  the  sale  of  land  that  he  will 
transfer  a  good  title  to  the  vendee,  un- 
less the  contract  relieves  the  vendor  of  that 
obligation.  Justice  v.  Button,  38:  i,  131 
N.  W.  736,  89  Neb.  367. 

8.  The  obligation  of  one  who  accepts 
a  deed  which  requires  him  to  make  a  pay- 
ment to  a  stranger  is  that  only  of  a  sim- 
ple contract  debtor  on  an  implied  promise. 
Barnes  v.  Crockett,  36:  464,  68  S.  E.  983, 
111  Va.  240. 

9.  The  law  implies  a  contract  by  the 
maker  of  a  note  to  reimburse  the  accom- 
modation indorser  the  amount  which  he  is 
compelled  to  pay  thereon,  and  therefore,  if 
the  note  is  barred  in  favor  of  the  maker 
when  its  amount  is  collected  from  the  in- 
dorser's  estate,  the  time  having  been  ex- 
tended as  to  it  by  the  administration  pro- 
ceedings, the  estate  has  a  right  of  action 
against  the  maker  upon  the  implied  con- 
tract for  reimbursement."  Blanchard  v. 
Blanchard,  37:  783,  94  N.  E.  630,  201  N. 
Y.  134. 

10.  The  mere  fact  that  a  broker  carry- 
ing stocks  for  his  customer  on  margin  ac- 
cepts a  stop-loss  order,  in  which  a  certain 
price  is  named,  does  not  imply  that  he 
agrees  to  carry  the  stock  until  that  price 
is  reached.  Richter  v.  Poe,  22:  174,  71  Atl. 
420,  109  Md.  20.  (Annotated) 

11.  An  agreement  on  the  part  of  one  sell- 
ing a  business  not  to  compete  with  the 
buyer  is  not  implied  from  a  sale  of  the 
good  will.  Bradford  v.  Montgomery  Furni- 
ture Co.  9:  979,  92  S.  W.  1104,  115  Tenn. 
610. 

12.  Under  a  contract  by  one  person  to 
publish  a  book  for  another,  the  law  implies 
the  obligation  on  the  part  of  the  latter  to 
furnish  the  manuscript  for  it.  Jones  v. 
Gammel  Statesman  Pub.  Co.  8:  11 97,  99  S. 
W.  701,  100  Tex.  320. 

13.  The  use  by  a  publishing  company 
which  has  contracted  with  the  state  to  print 
copies  ot  the  reports  of  its  supreme  court 
for  a  certain  price,  of  the  uncopyrightod 
manuscripts  or  stereotyped  plates  belonging 
to  the  state  and  intrusted  to  the  company 
to  enable  it  to  carry  out  its  contract,  for 
the  purpose  of  printing  copies  of  the  re- 
ports, which  it  sells  for  its  own  benefit  with- 
out the  consent  of  the  state,  is  a  violation 
of  its  implied  agreement  not  to  use  the 
property  for  any  other  purpose  than  that 
contemplated  in  the  contract,  for  which  -a 
recovery  may  be  had  upon  suitable  allega- 
tions. State  V.  State  Journal  Co.  9:  174, 
106  N.  W.  434,  75  Neb.  275. 

14.  A  publisher  who  has  contracted  to 
print  for  the  state  a  certain  number  of 
Digest  1-52  I<.R.A.(N.S.) 


volumes  of  supreme  court  reports  for  an 
agreed  compensation  is  not  thereby  preclud- 
ed from  manufacturing  and  selling  volumes 
containing  tlie  same  literary  matter,  on  his 
own  account,  where  it  was  uncopyrighted 
and  had  already  been  given  to  the  public; 
nor  will  the  law  imply  an  agreement  on  his 
part  not  to  do  so.  State  v.  State  Journal 
Co.  9:  174,  106  N.  W.  434,  75  Neb.  275. 

(Annotated) 

15.  An  artist  who,  after  filling  an  order 
to  paint  a  portrait  from  photographs  of  the 
deceased  wife  of  his  customer,  proceeds  with- 
out orders  to  paint  another,  cannot  compel 
the  customer  to  pay  for  it  if  it  is  placed  in 
his  possession  for  inspection  and  retained  by 
him,  since  the  act  of  painting  it  constitutes 
a  violation  of  the  contract  and  breach  of 
trust.  Klug  V.  Sheriffs,  7:  362,  109  N.  W. 
656,  129  Wis.  468.  (Annotated) 

16.  Where  one's  land  has  been  appro- 
priated without  first  securing  the  right,  as  a 
railway  right  of  way,  and  a  road  construct- 
ed thereon,  he  may  waive  his  remedies  in 
ejectment,  injunction,  and  trespass,  and,  as- 
suming that  the  company  could  acquire  the 
land  in  condemnation  proceedings,  waive 
such  proceeding,  and  sue  as  upon  an  im- 
plied contract  to  pay  the  reasonable  value 
of  the  land  taken.  Boise  Valley  Coiistr. 
Co.  V.  Kroeger,  28:  968,  105  Pac.  1070,  17 
Idaho,   384. 

17.  The  law  implies  a  contract  to  pay 
the  fair  value  for  work  and  materials  used 
in  the  erection  of  a  building  on  one's  land, 
imder  a  contract  the  clause  in  reference  to 
the  price  in  which  fails  because  of  the  fraud 
of  the  architect  in  inserting  different 
amounts  in  the  copies  delivered  to  the  owner 
and  the  contractor,  so  that  the  minds  of  the 
parties  never  met  on  tlie  price.  Vickery  v 
llitchie,  26:  810,  88  N.  E.  835,  202  Mass.  247. 

(Annotated) 

18.  The  contract  arising  from  an  offer 
made  by  a  newspaper  to  answer  inquiries 
from  readers  desiring  financial  advice,  and 
a  letter  written  in  response  to  such  offer 
asking  for  the  name  of  a  good  stock  broker, 
while  not  amounting  to  a  warranty  of  the 
character  or  conduct  of  the  broker  named, 
amounts  to  a  contract  to  take  reasonable 
care  in  the  nomination  of  a  broker.  De  La 
Bere  v.  Pearson,  Ltd.,  1  B.  R.  C.  21  [1908] 
1  K.  B.  280.  Also  Reported  in  77  L.  J.  K. 
B.  N.  S.  380,  98  L.  T.  N.  S.  71,  24  Times  L. 
R.  120. 

19.  The  implied  contract  to  use  reason- 
able care  that  the  person  recommended  as  a 
broker  should  answer  the  description  of  a 
good  stock  broker,  which  arises  where  in  re- 
sponse to  a  newspaper  offer  to  give  advice 
witli  reference  to  investments  a  person 
writes  asking  for  a  safe  investment  for  a 
certain  sum  and  also  for  the  name  of  a 
"good  stockbroker,"  is  breached  by  the  rec- 
ommendation of  a  broker  not  a  member  of 
the  stock  exchange  without  making  reason- 
able inquiries  about  him.  De  La  Bere  v. 
Pearson,  Ltd.,  1  B.  R.  C.  21,  [1908]  1  K.  B. 
280.  Also  Reported  in  77  L.  J.  K.  B.  N.  S. 
380,  98  L.  T.  K  S.  71,  24  Times  L.  R.  120. 

20.  One  who  presents  to  a  corporation  a 


CONTRACTS,  I.  b. 


615 


transfer  of  stock  with  a  request  that  it  be 
registered  in  his  name,  impliedly  undertakes 
to  indemnify  the  corporation  against  any 
loss  resulting  from  the  transaction;  and 
therefore,  although  he  acted  in  good  faith, 
is  bound  to  indemnify  the  corporation 
against  its  liability  to  the  former  owner  of 
the  stocky  whose  signature  to  the  transfer 
proves  to  have  been  forged.  SheflSeld  v. 
Barclay,  2  B.  R.  C.  514,  [1905]  A.  C.  392. 
Also  Reported  in  74  L.  J.  K.  B.  N.  S.  747, 
69  J.  P.  385,  54  Week.  Rep.  49,  93  L.  T. 
N.  S.  83,  21  Times  L.  R.  642,  10  Com.  Cas. 
287,  12  Manson,  248,  3  L.  G.  R.  992. 

(Annotated) 

21.  Where  a  person  invested  with  a 
statutory  or  common-law  duty  of  a  minis- 
terial character  is  called  upon  to  exercise 
that  duty  on  the  request,  direction,  or  de- 
mand of  another,  and  without  any  default 
on  his  own  part  acts  in  a  manner  which  is 
apparently  legal  but  is  in  fact  a  breach  of 
duty,  and  thereby  incurs  liability  to  third 
parties,  there  is  implied  by  law  a  contract 
by  the  person  making  the  request  to  keep 
indemnified  the  person  having  the  duty 
against  any  liability  which  may  result 
from  the  exercise  of  the  supposed  duty; 
and  it  makes  no  difference  that  the  person 
making  the  request  is  not  aware  of  the  in- 
validity in  his  title  to  make  the  request,  or 
could  not  with  reasonable  diligence  have  dis- 
covered it.  Sheffield  Corporation  v.  Bar- 
clay, 2  B.  R,  C.  514,  [1905]  A.  C.  392. 
Also  reported  in  74  L.  J.  K.  B.  N.  S.  747, 
69  J.  P.  385,  54  Week.  Rep.  49,  93  L.  T. 
N.  S.  83,  21  Times  L.  R.  642,  10  Com.  Cas. 
287,  12  Manson,  248,  3  L.  G.  R.  992. 

22.  No  contract  between  the  manufactur- 
er of  goods  and  a  retailer  who  has  pur- 
chased them  from  a  wholesaler,  which  will 
bind  the  retailer  to  adhere  to  the  minimum 
selling  price  fixed  by  the  manufacturer,  is 
created  by  attaching  to  the  goods  a  label  or 
notice  stating  that  acceptance  of  the  goods 
will  be  deemed  a  contract  between  a  pur- 
chaser and  the  manufacturer  that  he  will 
observe  the  condition  fixing  the  retail  price, 
and  that  in  the  case  of  a  purchase  by  a  re- 
tail dealer  through  a  wholesale  dealer,  the 
latter  shall  be  deemed  to  be  the  agent  of  the 
manufacturer.  Taddy  &  Co.  v.  Sterious  &  Co. 
3  B.  R.  C.  286,  [1904]  1  Ch.  354.  Also  Re- 
ported in  73  L.  J.  Ch.  N.  S.  191,  52  Week.  Rep. 
152,  89  L.  T.  N.  S.  628,  20  Times  L.  R.  102. 
Te  pay  for  ser^ces. 

Right  to  recover  for  gratuitous  services,  see 
Assumpsit,  3. 

Measure  of  recovery  on,  see  Damages,  119. 

Effect  of  filing  claim  against  estate  as 
widow  to  prevent  recovery  for  services, 
see  Election  of  Remedies,  27. 

Presumption  that  services  of  foster  child 
were  gratuitous,  see  Evidence,  537. 

Sufficiency  of  evidence  to  show  implied  con- 
tract, see  Evidence,  2274. 

Right  of  wife  to  maintain  action  upon  im- 
plied contract,  see  Husband  and  Wife, 
166. 

Effect  of  judgment  to  bar  action  on  implied 
contract,  see  Judgment,  187. 

Ree  also  supra,  17:  infra,  33-38,  40,  41,  43. 

Digest   1-52  L.R.A.(N.S.) 


23.  There  is  no  general  equitable  princi- 
ple that  one  who  receives  the  benefit  of  an- 
other's work  is  liable  to  pay  for  it.  Re 
English  &  Colonial  Produce  Co.  4  B.  R.  C. 
748,  [1906]  2  Ch.  435.  Also  Reported  in 
75  L.  J.  Ch.  N.  S.  831,  95  L.  T.  N.  S.  85, 
22  Times  L.  R.  69,  13  Manson,  337. 

24.  No  contract  to  compensate  one  for 
services  can  be  implied  where  tlie  statute 
requires  an  express  contract  to  do  so  to  be 
in  writing.  Selvaee  v.  Talbott,  33:  973, 
95  N.  E.  114,  175  Ind.  648. 

25.  No  recovery  6an  be  had  on  quantum 
meruit  for  services  rendered  in  procuring 
a  purchaser  for  real  estate,  where  tliere  is 
no  written  contract  to  make  compensation, 
as  required  by  statute.  Selvage  v.  Talbott, 
33:  973,  95  N.  E.  114,  175  Ind.  648. 

26.  One  who  performs  services  for  an- 
other, based  upon  a  contract  void  under  the 
statute  of  frauds,  can  recover  from  him 
only  so  much  as  he  has  been  enriched  by 
the  transaction.  Henrikson  v.  Henrikson, 
33:  534,  127  N.  W.  962,  143  Wis.  314. 

27.  No  promise  is  implied  on  the  part 
of  a  woman  to  pay  a  physician  for  profes- 
sional services  rendered  to  her  daughter, 
who  was  living  with  her  husband,  and  not 
dependent  on  the  mother  for  support,  from 
the  fact  that  the  services  were  rendered 
upon  the  mother's  rftquest  or  importunity. 
McGuire  v.  Hughes,  46:  577,  101  S.  E.  460, 
207   N.   Y.   516.  (Annotated) 

28.  One  rendering  services  for  another 
under  the  assurance  that  no  charge  will  be 
made  for  them  cannot  recover  for  their 
value  on  the  theory  that  a  charge  would 
have  been  made  had  he  not  believed  that 
another  agreement  between  the  parties  would 
have  been  carried  out.  Cochran  v,  Zachery, 
16:  235,  115  N.  W.  486,  137  Iowa,  585. 

29.  A  corporation  does  not,  by  accepting 
the  benefit  of  services  rendered  by  a  pro- 
moter in  securing  stock  subscriptions,  ren- 
der itself  liable  on  an  agreement  by  an- 
other promoter  that  he  shall  be  paid  for 
such  services.  Cushion  Heel  Shoe  Co.  v. 
Hartt,  50:  979,  103  N.  E.  1063,  181  Ind.  167. 

( Annotated ) 

30.  In  the  absence  of  a  provision  in  an 
excavation  contract  for  the  price  at  which 
a  certain  class  of  materials  shall  be  moved, 
the  contractor  is  entitled  to  the  reasonable 
value  of  the  work.  Indianapolis  North- 
ern Traction  Co.  v.  Brennan,  30:  85,  87  N. 
E.  215,  90  N.  E.  65,  171  Ind.  1. 

31.  One  who  has  been  received  in  in- 
fancy into  a  family  not  of  kin  must  show, 
in  order  to  recover  for  services  rendered 
the  family  after  majority  while  still  re- 
maining in  tlie  household,  either  an  ex- 
press contract,  or  circumstances  from  which 
a  contract  to  compensate  her  for  sucli  serv- 
ices may  be  implied.  Howard  v.  Ran- 
dolph, 29:  294,  68  S.  E.   586,  134  Ga.  691. 

32.  The  estate  of  one  who  takes  an  or- 
phan not  of  kin,  when  but  three  years 
of  age,  into  his  family,  assuming  the  rela- 
tion of  a  parent,  and  educating  and  sup- 
porting the  child,  is  not  liable,  in  the  ab- 
sence  of  express   agreement,  to   pay   wages 


616 


CONTRACTS,  I.  b. 


to  tlie  child,  after  the  death  of  the  person 

in   loco   parentis,   for   services   rendered    by 

the   cliild    while    a   minor    to    snch    parent, 

altliough  tiie  value  thereof  may  exceed  the 

expenses  of  education  and  support.     Howard 

V.  Randolph,  29:  294,  (58  S.  E.  586,  134  Ga. 

691. 

Betiveen  relatives. 

Review  of  finding  by  jury  that  services  were 

not  gratuitous,  see  Appeal  and  I-^rkob, 

901. 
Guardian's  right  to  credit  for  lodging  and 

services,  see  Guabbian  and  Wabd,  7. 
Measure  of  recovery  on,  see  Damages,  104. 
3$.  A  woman  taking  her  brother  into 
her  home,  and,  witliout  benefit  to  herself, 
nursing  and  performing  other  menial  serv- 
ices for  hira  during  his  last  illness,  is  en- 
titled to  an  allowance  of  their  value  out 
of  his  estate,  although  there  was  no  exp  :;3 
contract  that  payment  should  be  made. 
Mark  v.  Boardman,  i:  819,  89  S.  W.  481,  28 
Ky.  L.  Rep.  455.  < Annotated) 

34.  No  contract  to  pay  for  services  ren- 
dered a  brother  will  be  presumed  where  the 
one  rendering  them  lives  in  his  brother's 
house  as  a  member  of  his  family,  assisting 
in  work  about  the  place,  from  which  both 
secure  their  livins:.    Hodge  v.  Hodge,  11:  873, 

.91  Pac.  764,  47  Wash.  196.  (Annotated) 

35.  The  reasonable  worth  of  the  services 
of  a  child  cannot  be  recovered  against  his 
father  in  case  he  performs  them  under*  a 
contract  by  the  father  to  give  him  a  farm 
in  case  he  should  work  iipon  it  until  the 
father's  death.  More  v.  Luther,  18:  149, 
116  N.  W.  986,  153  Mich.  206. 

36.  Children  at  whose  request  one  of 
their  number  supports  their  parent  must 
make  reasonable  compensation  for  the  serv- 
ices rendered.  Wvman  v.  Passmore,  27: 
683,   125  N.   W.  213,   146   Iowa,  486. 

i-i''  -i  (Annotated) 

•oiSTj.A  child  who  supports  his  parent  at 
the  request  of  his  brothers  and  sisters,  aft- 
er their  failure  to  agree  upon  the  compen- 
sation he  is  to  receive  therefor,  is  entitled 
to  receive  from  them  the  reasonable  value 
of  the  service.  Wyman  v.  Passmore,  27: 
683,   125   N.   W.   213,   146   Iowa,  486. 

38.  Recovery  •  of  compensation  may  be 
had  by  an  adult  child  against  its  parent's 
estate,  upon  an  implied  promise  of  com- 
pensation, if,  not  being  a  member  of  the 
parent's  family,  it  returns  to  his  home  and 
performs  services  which  the  jury  find  from 
all  the  circumstances  were  to  be  paid  for, 
Mathias  v.  Tiugey,  38:749,  118  Pac.  781, 
39  Utah,  561iH.i  u.'  1  "  v:-i',!  ,.  .ru.i  /•. 
PnbHci'  ■•"■'  ".  •  •  •'•- 
Recovery  on  quantum  valebant,  see  Munici- 
pal  CORPOBATIONS,    243. 

39.  A  bank  which  by  arrangement  with 
the  iown  treasurer  cashes  his  check  given 
in  payment  of  town  orders,  and  receives 
from  him  as  collateral  the  assigned  orders 
so  paid,  may  enforce  them  against  the  town, 
although  the  treasurer  had  no  authority  to 
make  the  agreement;  since,  having  received 
the  benefit  of  the  agreement,  the  town  will 
not  be  permitted  to  repudiate  it  so  far  as 
its  obligations  have  been  liquidated  by 
Digest   1-52  i:i.R.A.(N.S.) 


monev  furnished  by  the  bank.     New  Haven 
V.  Weston,  46:  921,  86  Atl.  996,  87  Vt.  7. 

( Annotated ) 

40.  A  town  board  may  audit  and  allow 
claims  for  services  rendered  under  a  con- 
tract for  work  and  labor,  which  has  been 
fully  performed  and  the  work  approved  and 
accepted,  altliough  the  contract  \vas  invalid 
l)ecause  no  bond  for  the  protection  of  tlie 
town  and  persons  furnishing  labor  and  ma- 
terial was  given,  as  required  by  statute. 
State  ex  rel.  Morris  v.  Clark,  39:  43,  134  N. 
W.  129,  116  Minn.  500.  (Annotated) 

41.  A  county  which  accepts  without 
protest  tlie  services  of  a  printer  unlawfully 
designated  to  publish  certain  notices  re- 
quired by  law  is  liable  for  the  reasonable 
value  of  such  services,  where  from  the  re- 
sult of  such  services  it  has  secured  financial 
gain  sufficient  to  pay  therefor.  Miles  v. 
Holt  County,  27:  1130,  125  N.  W.  527,  86 
Neb.  238.  (Annotated) 

42.  One  making  repairs  to  a  county  road 
without  the  existence  of  any  emergency, 
upoH  request  of  ofhcers  who  have  no -au- 
thority to  bind  the  county,  cannot  hold  the 
county  liable  for  the  value  thereof  merely 
because  it  reaps  the  benefit  of  his  work, 
riovd  County  v.  Allen,  27:  1125,  126  S.  W. 
124,'  137   Ky,   575.  (Annotated) 

43.  A  physician  who,  upon  the  request 
of  the  sheriff  of  a  county,  performs  a  sur- 
gical operation  upon  one  who  is  a  prisoner 
in  the  custody  of  such  sheriff,  cannot  main- 
tain an  action  against  the  county  to  re- 
cover the  value  of  such  services.  Nolan  v. 
Cobb  County,  50:  1223,  81  S.  E.  124,  141 
Ga.  385.  (Annotated) 

44.  A  teacher  who,  in  order  to  maintain 
a  school  which  he  is  employed  to  teach,  pays 
the  rent  of  the  school  building  and  furnish- 
es necessary  supplies  without  request  from 
the  school  board  or  promise  of  reimburse- 
ment, cannot  compel  the  board  to  repay  the 
advances.  Noble  v.  Williams,  42:  1177,  150 
S.  W.  507,  150  Ky.  439.  (Annotated) 
Contracts  of  municipality. 

45.  W'here  a  municipal  corporation  re- 
ceives money  or  property  of  another  under 
and  pursuant  to  a  contract  upon  a  subject 
within  its  corporate  powers,  which  contract 
was  entered  into  in  good  faith  and  without 
purpose  to  violate  or  evade  the  law,  but,  on 
account  of  the  failure  of  the  council  to  sub- 
mit the  question  of  the  loan  to  the  legal 
voters  for  their  approval,  was  illegal,  and 
void,  and  the  money  or  property  so  received 
is  retained  and  subsequently  devoted  to 
legitimate  municipal  purposes,  the  munici- 
pality is  liable  therefor,  and  recovery  may 
be  had  against  it  as  upon  an  implied  con- 
tract. First  Nat.  Bank  v,  Goodhue,  43:  84, 
139  N.  W.  599,  120  Minn.  362. 

46.  Use  by  a  municipality  of  supplies 
ordered  by  an  unauthorized  agent  imposes 
no  liability  upon  it  if  the  bill  is  promptly 
rejected  by  the  general  council,  which  alone 
has  power  to  bind  the  city.  Worell  Mfg. 
Co.  V.  Ashland,  52:  880,  167  S,  W.  922,  159 
Ky.  656. 

47.  The  liability  of  a  municipal  corpo- 
ration  to  pay   for  the  publication   of  ordi- 


CONTRACTS,  I.  c,  1,  2. 


617 


nances,  resolutions,  and  legal  notices  re- 
quired by  law  to  be  published  must  rest 
on  express  contract,  and  not  upon  a  mere 
account  for  the  rendition  of  such  services. 
McCorinick  v.  Niles,  27:  1117,  90  N.  E.  803, 
81    Ohio    St.    246.  (Annotated) 

48.  That  a  statute  requires  certain  mu- 
nicipal ordinances,  resolutions,  and  notices 
to  be  published  in  two  newspapers  of  op- 
posite politics,  and  provides  a  ma.ximum  rate 
which  can  be  paid  therefor,  does  not  re- 
lieve a  publisher  which  has  published  such 
ordinances,  etc.,  in  a  paper  which  is  al- 
leged to  be  the  only  one  of  its  politics  in 
the  city,  from  the  necessity  of  showing  an 
express  contract,  in  order  to  recover  there- 
for. McCormick  v.  Niles,  27:  11 17,  90  N. 
E.  803,  81  Ohio  St.  246. 

49.  A  contract  for  the  purchase  of  items 
of  personalty  by  a  city  in  excess  of  the 
charter  limitation  of  the  amount  to  be  in- 
cluded in  one  contract  is  void,  and  no  lia- 
l)ility  as  upon  an  implied  contract  is  cre- 
ated against  the  municipality.  Perry 
Water,  L.  &  I.  Co.  v.  Perry,  39:  72,  120  Pac. 
r)S2.  29  Okla.  593.  (Annotated) 

50.  A  municipal  corporation  cannot  be 
held  liable  upon  a  quantum  meruit  for  the 
value  of  labor  performed  by  a  contractor  in 
the  construction  of  a  public  sewer  upon  its 
breaking  its  contract,  where  the  charter 
provides  that  it  cannot  make  inprovements 
and  issue  bonds  to  pay  the  expense  thereof 
in  any  other  manner  than  that  provided  by 
law.  Denver  v.  Hindry,  11:  1028,  90  Pac. 
1028,  40  Colo.  42. 

c.  Consideration. 

1.  Necessity ;  lack  of. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of  failure  of  consideration,  see  infra, 
765-770. 

Of  note,  see  Bills  and  Notes,  I.  c.         " 

For  liquor  bonds,  see  Bonds,  32. 

For  carriers  contract  to  issue  annual  passes 
'     for  life,  see  Carriers,  106]. 

Effect  on  oral  contract  of  written  contract 
made  without  consideration  subsequent 
to  breach  of  oral  contract,  see  Carriers, 
957. 

For  chattel  mortgage,  see  Chattel  Mort- 
gage, 5,  6. 

Of  deed,  see  Deeds. 

Presumption  of,  from  seal,  see  Evidence, 
538,  539. 

Evidence  as  to  consideration  for,  see  Evi- 
dence, XT.  m. 

Weight  of  evidence  on  question  of,  see  Evi- 
dence, 2261. 

For  bid  of  purchaser  at  administrator's  sale, 
see  Judicial  Sale,  14. 

Landlord's  gratuitous  promise  to  repair,  see 
Landlord  and  Tenant,  110. 

For  mortgage,  see  Mortgage,  18. 

Admission  of  consideration  by  pleading,  see 
Pleading,  87. 

Sufficiency  of  answer  to  set  up  want  of,  see 
Pleading,  529. 

Digest   1-52  I..R.A.(N.S.) 


Raising  by  demurrer  defense  of  want  of,  see 

Pleading,  586. 
New   consideration   to   support   contract   of 

suretyship  entered   into  after  note  was 

delivered,   see  Principal  and  Surety, 

1. 
Failure  to  state  consideration  in  tax  deed, 

see  Taxes,  223,  224. 
See  also  infra,  704. 

51.  When  there  is  by  law  no  enforce- 
able obligation  to  pay,  a  promise  made 
afterwards  to  pay  wants  legal  considera- 
tion, and  is  not  enforceable.  Gooch  v. 
Allen,  37:  930,  73  S.  E.  56,  70  W.  Va.  38. 

52.  A  written  consent  by  the  hut^band 
to  the  devise  by  the  wife  of  lier  real  prop- 
erty, does  not  require  a  consideration  to 
su])port  it.  Erickson  v.  Robertson,  37:  1133, 
133  N.  W.  164,  116  Minn.  90. 

53.  A  consideration  is  necessary  to  sup- 
port an  agreement  to  indemnify  a  surety 
on  a  note  against  loss  which  may  be  in- 
curred on  account  of  the  suretyship.  Da- 
viess Countv  Bank  &  T.  Co.  v.  Wriirht,  17: 
1122,  no  S.'W.  361,  33  Ky.  L.  Rep.  4.57. 

54.  An  agreement  without  consideration 
to  fix  the  division  line  between  two  adjoin- 
ing property  owners  at  a  place  which  is 
known  by  both  parties  not  to  be  the  true 
line  is  without  effect.  Lewis  v.  Ogram,  10: 
610,  87  Pac.  60,  149  Cal.  505.       (Annotated) 

55.  A  promise  by  the  county  treasurer 
to  return  money  deposited  with  an  applica- 
tion for  a  iiquor  license,  to  one  advancing 
it  to  the  applicant,  in  case  the  license  is  re- 
fused, is  without  consideration,  and  not 
binding,  where  the  law  specifies  that  the 
deposit  shall  be  returned  to  the  applicant 
who  has  not  consented  to  the  new  contract. 
Hemrich  Bros.  Brewing  Co.  v.  Kitsap  Coun- 
ty, 9:  910,  88  Pac.  838,  45  Wash.  454. 

For  release. 

Sufficiency  of  consideration  for,  see  infra, 
89-92. 

56.  A  release  by  one  insured  against  loss 
of  time  through  sickness  by  a  policy  pro- 
viding that  if  a  disability  is  of  longer  dura- 
tion than  thirteen  weeks,  payment  shall  be 
made  at  the  end  of  that  time  from  the 
beginning  of  the  illness,  upon  receiving  a 
draft  for  fifteen  weeks'  disability,  "of  all 
claim  for  indemnity  on  account  of  illness" 
beginning  on  the  date  upon  which  that  upon 
which  the  claim  is  founded  originated,  is 
invalid,  if  attempted  to  be  applied  to  claims 
for  disability  after  the  time  of  settlement 
growing  out  of  the  same  illness,  as  not  sup- 
ported by  any  consideration.  Moore  v. 
Maryland  Casualty  Co.  24:  211,  63  S.  E.  675, 
150  N.  C.  153. 

2.  Sufjicienci/. 

(See   also    same   heading    in   Digest   L.R.A. 

1-10.) 

Inadequacy  of  consideration  as  ground  for 
rescinding  contract,  see  infra,  704. 

For  satisfaction  of  debt,  see  Accord  and 
Satisfaction,  21.  22. 


618 


CONTRACTS,  I.  c,  2. 


Sufficiency  of  moral  obligation,  see  Assump- 
sit, 42. 

For  bills  or  notes,  Bee  Bills  and  Notes,  I.  c. 

For  contractor's  bond,  see  Bonds,  13. 

For  separation  agreement,  see  Divorce  and 
Separation,  165. 

Setting  aside  for  inadequacy  of  considera- 
tion, see  Equity,  62. 

Estoppel  to  maintain  action  to  set  aside  con- 
tract for  illegality  of  consideration,  see 
Estoppel,  122. 

Parol  evidence  as  to,  see  Evidence,  VI,  g. 

Of  conveyance  attacked  for  fraud,  see 
Fraudulent  Conveyances,  II. 

For  gift,  see  Gifts,  2. 

Marriage  as  consideration,  see  Husband 
and  Wife,  57,  101,  131,  132. 

For  antenuptial  contract,  see  Husband  and 
Wipe,  131-133. 

Of  contract  conferring  option  to  work  oil 
and  gas  mine,  see  Mines,  58. 

Sufficiency  of  allegations  to  show  inadequacy 
of  consideration,  see  Pleading,  254. 

For  renewal  of  note,  see  Principal  and 
Surety,  48. 

To  sustain  right  to  specific  performance,  see 
Specific  Performance,  109. 

Effect  of  inadequacy  of  consideration  on 
right  to  specific  performance  of  con- 
tract, see  Specific  Performance,  115- 
118. 

As  question  for  jury,  see  Trial,  621. 

To  sliow  bona  fides  in  purchase  of  land,  see 
Vendor  and  Purchaser,  94,  103. 

See  also  infra,  441,  442. 

57.  There  is  a  sufficient  consideration 
for  the  implied  undertaking  to  use  reason- 
able care  that  the  person  recommended  as  a 
broker  should  answer  the  description  of  a 
good  stock  broker,  which  results  from  the 
acceptance  of  an  offer  made  by  a  newspaper 
that  its  city  editor  would  answer  inquiries 
from  readers  desiring  financial  advice,  by  a 
reader  who  wrote  asking  for  a  safe  invest- 
ment for  a  certain  sum,  and  also  for  the 
name  of  a  good  stock  broker.  De  La  Bere 
v.  Pearson,  Ltd.,  1  B.  R.  C.  21,  [1908]  1  K. 
B.  280.  Also  Reported  in  77  L.  J.  K.  B.  N. 
S.  380,  98  L.  T.  N.  S.  71,  24  Times  L.  R. 
120. 

58.  The  fact  that  a  debt  barred  by  the 
statute  of  limitations  still  e.xists  affords  a 
sufficient  consideration  to  uphold  a  new 
promise  to  pay  it.  Spilde  v.  Johnson,  8:  439, 
109  N.  W.  1023,  132  Iowa,  484. 

59.  A  promise  by  the  maker  of  a  note 
to  pay  soon  is  no  consideration  for  a  prom- 
ise to  refrain  from  suing  upon  it.  Perrin 
V.  Chandler,  17:  1239,  69  Atl.  874,  81  Vt. 
270. 

60.  That  one  holding  a  note  payable  to 
him,  but  not  to  his  estate,  postpones  suing 
upon  promise  by  the  debtor  to  pay  soon, 
does  not  raise  a  new  obligation  on  his  part 
for  the  benefit  of  the  estate;  and  therefore 
the  estate  cannot  enforce  the  note  upon 
death  of  the  holder  before  suit  is  brought. 
Perrin  v.  Chandler,  17:1239,  69  Atl.  874, 
81  Vt.  270. 

61.  The  payment  of  $1  is  not  a  proper 
or  fair  consideration  to  support  an  option 
Digest  1-52  I*R.A.(N.S.) 


to  purchase  real  estate  worth  nearly  a 
thousand  dollars.  Rude  v.  Levy,  24:  91,  9(1 
Pac.  560,  43  Colo.  482. 

62.  The  agreement  by  one  who,  having  a 
right  to  support  on  property  left  by  her 
father  for  the  use  of  her  .stepmother  during 
life,  after  deciding  to  leave  the  place,  to  re- 
main and  continue  to  render  services  there 
for  compensation  to  be  paid  by  the  step- 
mother, is  a  valid  consideration  to  support 
the  promise  of  compensation.  P»nd  v.  Pond, 
8:  212,  65  Atl.  97,  79  Vt.  352. 

63.  That  a  promise  to  pay  for  services  in 
furnishing  information  to  a  prospective  pur- 
chaser of  property  for  sale  is  not  made  until 
after  the  information  is  furnished  will  not 
defeat  a  recovery  on  the  promise  where  the 
information  was  furnished  in  accordance 
with  a  previous  request  therefor.  Friedman 
V.  Suttle,  9:  933,  85  Pac.  726,  10  Ariz.  57. 

64.  One  owning  land  adjoining  a  ceme- 
tery in  which  liis  kindred  are  buried  may, 
in  leasing  the  right  to  take  gravel  from  his 
property,  make  an  enforceable  contract 
against  the  removal  of  lateral  support  from 
the  cemetery,  both  because  of  his  interest 
in  protecting  the  remains  of  iiis  dead  and 
to  protect  himself  from  liability  as  an  ad- 
joining property  owner  for  authorizing  the 
possible  removal  of  lateral  support  from  the 
cemetery  property.  Orr  v.  Dayton  &  M. 
Traction  Co.  48:  474,  96  N.  E.  402.  178  Ind. 
40.  (Annotated) 

65.  A  transfer  by  a  city  of  a  sick  horse 
belonging  to  it,  in  consideration  that  the 
grantee  will  give  it  a  good  home  for  the 
rest  of  its  life,  not  overwork  it,  and  finally 
put  it  out  of  the  way  and  bury  it,  is  valid, 
although  a  small  cash  sum  might  have  been 
received  for  it,  and  the  city  cannot  recover 
possession  of  the  animal  when  it  improves 
in  health,  so  that  it  is  able  to  do  some 
work.  Rockland  v.  Anderson,  43:  1137,  85 
Atl.    1066,    110   Me.   272.  (Annotated) 

66.  A  check  delivered  by  a  man  to  his 
physician,  to  pay  for  past  and  future  serv- 
ices, and  a  further  sum  as  a  present  for 
faithful  attendance,  is  supported  by  suffi- 
cient consideration,  so  that  it  can  be  en- 
forced against  his  estate  as  a  contract,  al- 
though, by  reason  of  the  fact  that  it  is  not 
made  payable  until  after  testator's  death, 
it  is  not  enforceable  as  a  check.  Foxworthy 
V.  Adams,  27:308,  124  S.  W.  381,  136  Ky. 
403. 

67.  A  pledge  of  stock  as  security  for  an 
existing  overdue  note  is  supported  by  a 
sufficient  consideration.  State  Banking  & 
T,  Co.  V.  Taylor,  29:  523,  127  N.  W.  590, 
25  S.  D.  577. 

68.  An  agreement  by  a  trust  company  to 
loan  a  specified  sum  of  money  upon  the  com- 
pletion of  a  building  to  cost  a  certain  sum, 
and  when  security  (consisting  of  life  insur- 
ance policies  of  the  borrower  and  another) 
should  be  furnished,  the  payment  of  the 
premiums  upon  the  policies  to  be  secured  by 
bonds  and  real -estate  mortgages,  is  fotmded 
upon  a  good  consideration,  where  the  bor- 
rower incurred  indebtedness  in  perfecting 
his  application  for  insurance,  made  contracts 
with  materialmen  upon  the  faith  of  the  ad- 


CONTRACTS,  I.  c,  2. 


ei9 


vanoement  of  the  money,  and  executed  a 
mortgage  to  secure  payment  of  the  pre- 
miums, and  permitted  it  to  be  recorded. 
Holt  V.  United  Security  L.  Ins.  &.  T.  Co.  (N, 
J.  Err.  &  App.)  ii:  loo,  67  Atl.  118,  74  N. 
J.  L.  795. 

6^.  A  promise  by  a  telegraph  company  to 
notify  the  sender  if  a  message  is  not  de- 
livered is  supported  by  the  consideration 
made  for  transmission  of  the  message. 
Lvles  V.  Western  IT.  Teleg.  Co.  12:  534,  57  S. 
E".  725,  77  S.  C.  174. 

70.  The  personal  knowledge  of  a  sales 
agent  located  at  a  commercial  center,  ac- 
quired in  the  sale  of  his  line  there,  his  ex- 
perience in  the  business,  his  acquaintance 
with  available  salesmen  and  to  probable 
customers,  and  his  ability  to  secure  a  similar 
agency  in  a  rival  house,  may  be  found  to 
constitute  what  the  parties  refer  to  as  good 
iwill  which  his  principal  purchases  from  him 
when  placing  another  person  in  charge  of 
the  agency,  so  as  to  form  a  consideration 
for  the  amount  agreed  to  be  paid  therefor. 
Gordon  v.  Knott,  19:  762,  85  N-.  E.  184,  199 
Mass.  173. 

71.  A  contract  between  a  man  and  wife 
as  to  the  support  of  their  child  is  not  de- 
pri'-ed  of  consideration  to  support  it  by 
the  fact  that  at  the  time  it  is  made  a  di- 
vorce proceeding  is  pending  between  them, 
so  that  the  question  or  the  eustcly  of  the 
child  is  a  matter  for  the  determination  of 
the  court,  if  the  court  in  fact  neglects  to 
provide  for  it  further  than  merely  to  award 
it  to  one  of  the  parties.  Ward  v.  Good- 
rich, 2:  201,  82  Pac.  701,  34  Colo.  369. 

72.  A  senior  mortgagee  is  not  estopped 
to  claim  a  paramount  lien  as  against  a 
junior  mortgagee  by  reason  of  the  execu- 
tion by  him  of  a  written  agreement  that 
the  junior  mortgage  shall  constitute  a  prior 
lien,  where  such  agreement  states  no  con- 
sideration, and  it  appears  that  no  con- 
sideration passed  to  the  first  mortgagee,  and 
the  only  consideration  claimed  is  that  the 
second  mortgagee  made  advances  and  loans 
to  the  mortgagor  which  he  would  not  have 
otherwise  made,  it  further  appearing  tiiat 
advances  and  loans  had  been  made  by  him 
prior  to  the  making  of  the  agreement,  that 
there  was  no  change  in  the  method  of  mak- 
ing such  advances  or  loans,  and  that  the 
second  mortgagee  was  under  bond  to  see 
that  the  mortgagor  carried  out  and  fulfilled 
a  contract  for  which  such  advances  were 
made,  as  in  such  case  the  agreement  is  un- 
enforceable, because  without  consideration. 
Porter  v.  Monarch,  27:  iii,  106  Pac.  299, 
17  Idaho,  364. 

73.  The  covenant  of  an  insolvent  part- 
ner to  assume  and  pay  the  debts  of  an  in- 
solvent partnership  is  a  valuable  considera- 
tion, sufficient  to  support  a  conveyance  of 
an  interest  in  the  partnership  property. 
Sargent  v,  Blake,  17:1040,  160  Fed.  57, 
87  C.  C.  A.  213. 

74.  A  provision  in  a  contract  for  the 
sale  of  machinery,  that  acceptance  of  it 
shall  constitute  a  waiver  of  all  claim  for 
damages  for  delay  in  delivery,  is  not  in- 
valid for  want  of  mutualitv  and  considera- 
Digest  1^52  L.R.A.CN.S!) 


tion;  nor  is  it  opposed  to  public  policy. 
Victor  Chemical  Works  v.  Hill  Clutch  Co. 
10:  814,  152  Fed.  393,  81  C.  C.  A.  519. 

75.  Where  a  father  voluntarily  told  a 
great-grandfather  of  his  child,  three  days 
old,  that  he  might  take  and  keep  the  child 
as  long  as  he  and  his  wife  lived,  or  until 
the  child  was  twenty-one  years,  of  age,  and 
the  grandparent  did  take,  keep,  maintain, 
and  protect  it  for  about  three  years,  the 
contract  thus  entered  into  is  not  open  to  the 
objection  that  it  is  unilateral  and  without 
consideration.  W^ilkinson  v.  Lee,  42:  1013, 
75  S.  E.  477,  138  Ga.  360. 

76.  E.vpress  rescission  of  an  existing  con- 
tract is  not  necessary  to  uphold  a  w  one 
providing  for  additional  compensation  for 
the  performance  of  the  same  work,  where 
the  parties  treat  their  rights  under  the 
original  contract  as  waived,  although  at  the 
time  there  had  been  a  breach  by  one  of  the 
parties  to  it,  which  breach,  because  of  sub- 
stantial unforeseen  diflficulties  not  within 
the  contemplation  of  the  parties,  was  equi- 
table and  fair.  Linz  v.  Schuck,  11:  789,  67 
Atl.  286,  106  Md.  220. 

Agreement      to      repurchase      vendee's 
interest. 

77.  The  delivery  by  a  conditional  vendee 
in  possession,  who  is  in  default  in  his  pay- 
ments, of  possession  to  the  vendor,  and  his 
execution  and  placing  in  escrow  of  a  deed 
revesting  title  to  the  property  in  the  vendor, 
is  a  sufficient  consideration  for  an  agree- 
ment by  the  vendor  to  pay  for  his  interest 
in  the  property.  Rogers  Development  Co. 
V.  Southern  California  Real  Estate  Invest. 
Co.  35:  543,  515  Pac.  934,  159  Cal.  735. 

78.  A  contract  made  by  a  conditional 
vendor,  after  default  on  the  part  of  the 
vendee,  to  repurchase  the  vendee's  interest, 
is  capable  of  enforcement,  although  in  its 
absence  the  vendor  might  have  claimed  a 
forfeiture  under  the  terms  of  the  original 
agreement.  Rogers  Development  Co.  v. 
Southern  California  Real  Estate  Invest.  Co. 
35:  543,   115   Pac.   934,   159  Cal.   735. 

(Annotated) 
Agreement   to   refrain   from   bnsiness. 

79.  The  amount  paid  for  a  newspaper 
plant  furnishes  a  consideration  not  only 
for  the  transfer  of  the  physical  property, 
but  also  for  the  business  and  good  will, 
and  for  the  agreement  of  the  seller  not  to 
conduct  another  paper  in  the  same  county. 
McAuliflfe  V.  Vaughan,  33:  255,  70  S.  E. 
322.   135  Ga.   852. 

80.  The  purchase  of  a  business  is  suffi- 
cient consideration  for  a  covenant  by  the 
seller  not  to  engage  in  a  similar  business 
within  a  certain  distance  of  the  place  where 
the  business  sold  is  located.  Harris  v.  The- 
us,  10:  204,  43  So.  131,  149  Ala.  133. 

81.  An  agreement  by  an  inexperienced 
physician  not  to  practise  his  profession  in  a 
certain  county  for  a  period  of  five  years  is 
supported  by  a  sufficient  consideration 
where  it  is  based  on  the  agreement  of  an  ex- 
perienced practitioner  located  there,  to  em- 
ploy him  as  assistant  at  a  monthly  salary 
during  the  mutual  pleasure  of  the  parties, 
to  introduce  him  to  his  friends  and  patients, 


620 


CONTRACTS,  I.  c,  2. 


and  furnish. him  with  necessary  conveyanoes 
with  which  to  perform  his  professional  du- 
ties. Freudentlial  v.  Espey,  26:  961,  102 
Pac.  280,  45  Colo.  488. 

82.  A  contract  entered  into  between  co- 
partners upon  dissolution  of  the  copartner- 
ship, whereby  one  of  the  partners,  in  con- 
sideration of  being  paid  in  cash  the  full 
value  of  his  interest  therein,  agreed  with 
the  purchasing  partner  "not  to  engage  for 
the  next  two  years"  in  the  same  business 
theretofore  conducted  by  the  firm,  in  the 
same  citj',  "in  the  manner  aforesaid,  or  with 
any  partner,  partners,  firm,  company,  or 
corporation,"  for  such  period,  is  based  upon 
a:  sufficient  consideration,  as  there  was  no 
legal  duty  resting  upon  either  partner  to 
purchase  the  interest  of  the  other.  Siegel 
V.  :\larcus,  20:  769,  119  X.  W.  358,  18  N.  D. 
214. 

Agreement  for  support. 

83.  In  determining  the  adequacy  of  con- 
sideration for  a  conveyance  of  property  on 
an  agreement  to  support  tlie  grantor  for 
life,  conditions  as  they  existed  at  the  time 
of  the  conveyance  must  be  looked  to,  it  being 
presumed  that  the  parties  had  in  contem- 
plation everytliing  which  might  in  any 
reasonable  probability  occur;  and  the  con- 
sideration cannot  be  regarded  inadequate 
because  the  extreme  did  not  occur.  Board- 
man  V.  Lorentzen,  52:  476,  145  X.  W.  750, 
155  Wis.  566. 

84.  One  promising  his  stepmother  that, 
in  case  she  will  return  to  and  care  for  his 
fatlier,  from  whom  she  had  separated  for 
justifiable  cause,  he  will  support  her  for 
life,  cannot  avoid  his  contract  on  the 
ground  that  lie  received  no  consideration 
therefor,  the  disadvantage  to  the  promisee 
being  sufficient  to  support  it.  Mack  v. 
Mack,  31:  441,  128  N.  W.  527,  87  Neb.  819. 
Promise  to  pay  tenant  for  better- 
ments. 

85.  A  promise  by  a  landlord  to  pay  his 
tenant  for  a  betterment  placed  upon  the 
property  by  the  tenant,  and  which  he  had 
a  right  to  remove,  but  which  the  landlord 
accepted,  is  not  without  consideration,  and 
is  binding  upon  him.  Critcher  v.  Watson, 
18:  270,  59  S.  E.  544,  146  N.  C.  150. 

86.  The  promise  of  a  property  owner  to 
pay  the  cost  of  driving  and  casing  a  well 
which  his  tenant  has  constructed  on  the 
property  is  supported  by  a  sufficient  consid- 
eration if  the  services  were  beneficial  to 
him  and  were  not  intended  to  be  gratuitous. 
Edson  V.  Poppe,  26:  534,  124  N,  W.  441,  24 
S.  D.  466. 

Ratification  of  agent's   contract. 

87.  No  new  consideration  is  necessary 
to  support  a  ratification  by  a  principal  of 
an  unauthorized  contract  by  his  broker 
to  sell  real  estate.  McLeod  v.  Morrison  & 
Eshelman,  38:  783,  120  Pac.  528,  66  Wash. 
683. 

"WitlidraTral   of   competition. 

88.  Withdrawing  competition  for  a  par- 
cel of  real  estate  ts  a  sufficient  considera- 
tion for  an  undertaking  to  pay  a  sum  of 
money  to  secure  such  withdrawal.  Wliito 
Digest  1-52  I<.B.A.(N.S.) 


V.  McMath  A  Johnston,  44:  1115,  156  S.  W. 

470,   127   Tenn.  713. 

Release. 

See  also  supra,  56. 

89.  Continued  employment  as  a  porter 
on  a  sleeping  car  is  a  suflicient  considera- 
tion for  the  signing  of  a  release  of  Babil- 
ity  for  personal  injuries  caused  through  the 
negligence  of  the  railroad  company  hauling 
the  car.  Chicago,  R.  I.  &  P.  R.  Co.  v.  Ham- 
ler,  1:  674,  74  N.  E.  705,  215  111.  525. 

90.  Medical  attention  furnished  by  an 
employer  to  an  employee  injured  by  his' mg- 
ligenee  is  not  a  sutlicient  consideration  to 
support  a  release  of  liability  to  ma!  e  com- 
pensation for  the  injury.  Kennedy  v.  Spo- 
kane, P.  &  8.  K.  Co.'46:  419,  132  Pac.  50.  73 
Wash.   389.  (Annotated) 

91.  That  a  railroad  compariv  which  is 
not  shown  to  have  contributed  to  the  main- 
tenance of  a  department  for  tiie  relief  of  in-, 
jured  employees  has  undertaken  to  guaran- 
tee the  fulfilment  of  the  obligation,-)  of  the 
department  does  not  furnish  a  consideration 
for  an  agreement  by  an  employee  to  re- 
lease it  from  liability  for  injuries  negli- 
gently indicted  upon  him,  if  it  has  the 
power  to  place  the  entire  burden  of  the 
department  upon  employees.  King  v,  At- 
lantic C.  L.  R.  Co.  48:  450,  72  S.  E.  801, 
157   X.   C.  44.  (Annotated) 

92.  A  compromise  agreement  to  pay 
an  injured  employee  his  wages  while  in- 
capable of  work,  in  consideration  that  he 
forego  suit  on  a  claim  against  the  employer, 
made  in  good  faith,  and  on  which  liability 
was  denied,  for  alleged  mistreatment  accord- 
ed him  at  a  hospital  to  which  he  had  gone 
at  the  request  of  the  employer,  is  based 
upon  a  sufficient  consideration  and  is  valid, 
irrespective  of  whether  or  not  both  parties 
considered  the  question  a  doubtful  one. 
Heath  v.  Potlatch  Lumber  Co.  27:  707,  108 
Pac.  343,   18  Idaho,  42. 

For  release  of  mortgage. 

93.  Payment  of  part  of  a  matured  mort- 
gage debt  may  constitute  a  consideration 
for  release  of  the  whole  of  it.  Frye  v. 
Hubbell,  17:1197,  68  Atl.  325.  74  X.  H.  358. 

94.  Acquisition  of  the  right  to  collect 
the  rents  of  mortgaged  property  prior  to  the 
time  when  the  mortgagee  is  entitled  to 
them  under  the  mortgage  is  a  sufficient  con- 
sideration for  his  promise  to  accept  the 
amount  received  at  the  foreclosure  sale  in 
satisfaction  of  the  mortgage.  Gilson  v. 
Nesson,  17:1208,  84  X.  E.  854,  198  Mass.  598. 

95.  A  promise  by  a  mortgagee,  on  fail- 
ure of  the  net  proceeds  of  a  sale  of  the 
mortgaged  property  to  equal  the  debt,  to 
take  less  than  the  debt  in  full  discharge  of 
it,  is  without  consideration  and  void.  Gil- 
son  V.  Xesson.  17:  1208,  84  N.  E.  854,  198 
Mass.   598. 

For  promise  of  third  person. 

96.  Where  a  lease  and  a  surety's  obliga- 
tion guaranteeing  the  payment  of  rent  are 
delivered  at  the  same  time,  each  contract 
becomes  complete  at  such  time,  and  the 
consideration  which  supports  the  principal 
contract  supports  the  subsidiary  one,  not- 
withstanding   the    lease    was    executed   at 


CONTRACTS,  I.  c,  2. 


621 


an  earlier  date,  and  the  tenant  had  enterod 
'  into   occupancy    of   the    premises,   and    paid 

an  instalment  of  rent  previous  to  such  de- 
livery, the  landlord  having,  however,  re- 
fused to  accept  the  lease  without  the  sure- 
ty's obligation.  Faust  v.  Rodelheim  (N.  J. 
Err.  &  App.)  27:  189,  73  Atl.  491,  77  N.  J. 
L.  740.  (Annotated) 

97.  An  agreement  in  writing  by  one  to 
take  up  a  past-due  note  of  another  if  it 
remains  unpaid  at  a  certain  future  date, 
without  additional  consideration  to  support 
it,  is  without  consideration,  and  unenforce- 
able, where  the  promisor  makes  no  request 
for  forbearance  of  suit  against  the  maker 
of  the  note,  and  the  promisee  does  not  agree 
to  forbear  suit;  and  the  mere  fact  that  he 
does  so  forbear  is  not  sufti^jent  to  establish 
either  such  promise  or  request.  J.  H.  Queal 
&  Co.  V.  Peterson,  19:  842,  116  N.  W.  593, 
138  Iowa,  514.  (Annotated) 
Promise    to    will    property. 

98.  An  agreement  to  reward  one  who  has 
performed  labor  by  a  legacy,  in  considera- 
tion of  his  forbearing  to  enforce  the  claim 
in  tiie  lifetime  of  the  promisor,  is  supported 
bv  suflicient  consideration.  Murtha  v. 
Donohoo,  41:  246,  136  N.  W,  158,  149  Wis. 
483. 

■99.  A  more  agreement  by  a  child  which 
has  been  taken  from  an  orphan  asylum  and 
has  become  homesick  to  return  to  it,  to 
remain  with  the  person  who  took  it,  with- 
out any  undertaking  as  to  duration  of  the 
time  for  continuing  with  him  or  services 
to  be  rendered,  is  not  sufficient  considei-a- 
tion  for  an  agreement  to  leave  property  to 
the  child  to  induce  equity  specifically  to  en- 
force it,  although  the  child  continues  to 
conduct  itself  during  the  time  of  its  stay 
as  a  dutiful  child  and  renders  dutiful  serv- 
ice to  the  other  contracting  party.  Bau- 
mann  v.  Kusian,  44:  756,  129  Pac.  986,  164 
Cal.  582. 
Siil'scriptloTis. 

Evidence  on   question   of   consideration,   see 
Evidence,  19.S2,  1933. 

100.  Expense  incurred  in  securing  a  sub- 
Bcription  for  a  benevolent  institution  fur- 
nishes no  consideration  for  the  subscription. 
Brokaw  v.  McKlroy,  50:  8^5,  143  N.  VV. 
1087.  162  Towa,  288. 

101.  Consideration  for  a  subscription  to 
a  university  may  be  found  from  the  fkcts 
that  upon  the  faith  of  it  other  subscrip- 
tions were  made,  and  expenditures  and  ob- 
ligations incurred  by  the  trustees  of  the 
institution.  Brokaw  v.  McElroy,  50:  835, 
143  N.  W.  1087,  162  Iowa,  288. 

102.  An  oral  promise  to  donate  money  to 
a  Young  Men's  Christian  Association  is 
based  upon  a  sufficient  consideration  where, 
during  the  life  of  the  promisor,  and  before 
a  witlidrawal  of  tlie  promise,  and  in  re- 
liance on  the  promise,  as  well  as  that  of 
others,  the  association  expended  money  and 
incurred  enforceable  liabilities  in  further- 
ance of  the  enterprise  the  donors  intended 
to  promote.  Young  Men's  Christian  Asso. 
v.  Estill,  48:  783,  78  S.  E.  1075,  140  Ga.  291. 

(Annotated) 
Digest  1-52  L.R.A.(N.S.) 


IVIoral  obligation. 

103.  A  merely  moral  obligation,  tfiough 
not  illegal,  is  not  a  consideration  for  a 
promise  to  make  that  promise  enforceable. 
Gooch  V.  Allen,  37:  930,  73  S.  E.  56,  70  W. 
Va.  38. 

104.  A  mere  moral  obligation  is  not  a 
sudicient  consideration  for  a  contract.  Linz 
V.  Schuck,  11:  789,  67  Atl.  286,  106  Md.  220. 

105.  The  moral  obligatioH  of  a  married 
woman  to  pay  for  supplies  furnislied  for 
use  in  her  family  at  a  time  when  she  had 
no  legal  power  to  contract  for  them  is  not 
sufficient  to  support  her  promise  after  her 
disability  has  been  removed  to  make  such 
payments.  Lyell  v.  Walbach,  33:  741,  77 
Atl.    1111,    113    Md.    .574.  (Annotated) 

106.  The  moral  obligation  to  pay  for  serv- 
ices of  a  real  estate  broker  under  a  contract 
unenforceable,  because  not  in  writing,  is  suf- 
ficient to  support  a  subsequent  written 
agreement  to  make  such  payment.  Muir  v. 
Kane,  26:  519,  104  Pac.  153,  55  Wash.  131. 

(Annotated) 
Lejsral   obligation. 

107.  Sufficient  consideration  for  a  con- 
tract may  be  found  in  the  fact  that  it  puts 
into  form  the  legal  and  equitable  obliga- 
tions existing  between  the  parties.  Reece 
Folding  Mach.  Co.  v.  Fen  wick,  2:  1094,  140 
Fed.  287,  72  C.  C.  A.  39. 

108.  A  man  cannot  avoid  his  contract  to 
support  his  child,  which  is  based  solely  on 
his  legal  obligation  to  do  so,  on  the  theory 
that  the  legal  obligation  is  not  a  sufficient 
consideration  to  support  the  promise.  Ward 
v.  Goodrich,  2:  201,  82  Pac.  701,  34  Colo. 
369. 

Performance  of  existing  obligation. 

109.  A  husband  cannot  make  a  contract 
enforceable  against  his  estate,  to  pay  his 
wife  for  services  rendered  by  her  in  nursing 
him  during  his  last  illness.  Foxworthv  v. 
Adams,  27:  308,  124  S.  W.  381,  136  'Ky. 
403. 

110.  A  promise  of  additional  compensation 
to  induce  completion  of  his  contract  by  one 
who,  having  contracted  to  dig  a  cellar,  aban- 
dons his  contract  because  he  finds  an  unfore- 
seen and  unanticipated  condition  of  soft 
mud  in  which  a  cellar  cannot  be  constructed 
without  great  additional  expense,  may  bo 
enforced.  Linz  v.  Schuck,  11:  789,  67  Atl. 
286,   106  Md.  220,  (Annotated) 

I'll.  The  promise  by  one  party  to  a  build- 
ing contract  to  pay  more  for  the  work  than 
the  amount  called  for  in  the  contract,  up- 
on the  refusal  or  threatened  refusal  of  the 
contractor  to  go  on  with  the  work,  the 
original  contract  still  remaining  in  force, 
is  without  consideration  and  unenforceable. 
Shriner  v.  Craft,  28:  450,  51  So.  884,  166 
Ala.  146.  (Annotated) 

112.  A  promise  of  additional  compensa- 
tion, to  induce  a  contractor  who  has  aban- 
doned his  work  because  of  insufficiency  of 
the  compensation  to  proceed  with  his  con- 
tract, is  enforceable  after  the  contract  has 
been  performed  in  reliance  thereon.  I'^vanB 
V.  Oregon  &  W.  R.  Co.  28:  455,  108  Pac. 
1095,  58  Wash.  429. 


622 


CONTRACTS,  I.  d,  1. 


113.  One  who  contracts  to  construct  a 
lioiise  in  a  workmanlike  manner,  aceordini: 
to  specifications  which  call  for  a  cellar  wall 
properly  laid,  is  bound  to  provide  a  con- 
crete foundation,  if  the  excavation  showsi 
that  it  will  be  necessary  to  support  the 
building,  although  the  parties  did  not  con- 
template the  necessity  of  so  doing  when 
they  made  the  contract;  and  an  agreement 
by  the  owner  to  pay  him  extra  compensa- 
tion for  such  service  is  without  considera- 
tion, and  cannot  be  enforced.  Creamery 
Package  Mfg.  Co.  v.  Russell,  32:  135,  78  Atl. 
718.  84  Vt.  80. 

114.  There  is  no  consideration  for  a  prom- 
ise to  one  who  has  contracted  in  writing 
to  publish  a  guidebook,  to  pay  money  to 
him  towards  the  expenses  of  the  undertak- 
ing, where  the  writing  does  not  provide 
therefor,  merely  because  he  refuses  to  go 
on  with  the  work  without  it.  Parrot  v. 
Mexican  C.  R.  Co.  34:  261,  93  N.  E.  590, 
207  Mass.  184. 

Mutual   promise. 
See  also  supra,  89. 

115.  The  mutual  promise  of  subscribers 
to  a  voting  trust  agreement  with  respect 
to  the  stock  of  a  corporation,  to  be  bound 
by  the  terms  of  the  agreement,  forms  a 
sufficient  consideration  to  uphold  the  agree- 
ment. Carnegie  Trust  Co.  v.  Security  L. 
Ins.  Co.  31:  1186,  68  S.  E.  412,  111  Va.  1. 
Relinquishment    of   right. 

See  also  infra,  480. 

116.  The  release  of  one's  obligation  upon 
a  contract  to  purchase  real  estate,  which  he 
claims  to  be  void  because  made  on  Sun- 
day, is  a  sufficient  consideration  for  his 
promise  to  pay  the  broker's  commissions. 
Brown  v.  Jennett,  5:  725,  106  N.  W.  747.  130 
Iowa,  311.  (Annotated) 

117.  Th,e  release  by  a  broker  of  the  obli- 
gation of  the  vendor  for  commissions  for  se- 
curing a  purchaser  is  a  sufficient  considera- 
tion to  uphold  a  contract  by  the  purchaser 
to  pay  him  their  .".mount  upon  being  re- 
leased from  his  contract.  Brown  v.  Jennett, 
5:  725,  106  N.  W.  747,  130  Iowa,  311. 

118.  Surrendering  a  child  to  a  stranger  is 
a  sufficient  consideration  for  his  undertak- 
ing to  adopt  it  and  give  it  rights  of  inheri- 
tance. Chehak  v.  Battles,  8:1130,  110  N.  W. 
330,  133  Iowa,  107. 

Agreement   not   to   contest  \irill. 

119.  Withdrawal  of  opposition  made  in 
good  faith  to  the  probate  of  a  will  is  a  valid 
consideration  for  a  promise  on  the  part  of 
one  interested  in  sustaining  the  will.  Gro- 
chowski  v.  Grochowski,  13:  484,  109  N.  W. 
742,  77  Neb.  506. 

120.  The  promise  by  one  who  in  good 
faith  intends  to  contest  a  will  for  a  cause 
which  does  not  appear  to  him  to  be  vexa- 
tious or  frivolous,  not  to  do  so,  is  a  suffi- 
cient consideration  for  a  promise  to  let 
him  share  in  the  estate,  without  the  neces- 
sity of  showing  that  the  promisor  had  rea- 
sonable cause  to  believe  that  he  had  a  fair 
chance  of  succeeding  in  the  contest.  Blount 
V.  Dillaway,  17:  1036,  85  N.  E.  477,  199 
Mass.  330. 

Digest  1-52  I^R.A.CN.S.) 


Condonation  of  cause  for  divorce. 

121.  A  contract  by  which  a  man  nnder- 
takes  to  convey  real  estate  to  his  wife  upon 
resumption  of  illicit  relations  with  his 
paramour,  in  case  she  condones  his  past 
offense  and  discontinues  a  proceeding  for 
divorce  against  him,  is  supported  by  a  val- 
uable consideration.  Darcey  v.  Darcey,  23: 
886,  71  Atl.  595,  29  R.  I.  384. 
Extension  of  time. 

122.  An  oral  agreement  for  forbearance, 
and  giving  time  for  the  payment  of  money 
then  due,  constitute  a  sufficient  considera- 
tion to  support  an  agreement  on  the  part 
of  a  debtor  to  pay  interest  thereon.  San- 
ford  v.  Lundquiat,  18:  633,  118  N.  W.  129, 
80  Neb.  414. 

Naming   child. 

123.  The  privilege  of  naming  a  child  is  a 
valid  consideration  for  a  promise  to  pay 
money.  Gardner  v.  Denisony  51:  1108,  105 
N.  E.  359,  217  Mass.  492.  (Annotated) 

d.  Meeting  of  minds;  deflniteness. 

1.  In  general. 

(See   also   same   heading   in   Digest   L.R.A. 
J-70.J 

Plea  of  non  est  factum  in  action  on  note,  see 

Appeal  and  Error,  1380. 
See  also  supra,  17;   infra,  620. 

124.  The  law  will  not  imply  a  price  for 
an  article  sold  and  delivered  where  there 
has  been  a  misunderstanding  between  the 
parties  as  to  the  price,  one  party  under- 
standing one  sum,  and  the  other  another. 
Estev  Organ  Co.  v.  Lehman,  n:  254,  111  N. 
W.  1097,  132  Wis.  144. 

Mistake   or  fraud. 

Notice  to  person  accepting  bid  of  mistake 

of   bidder   as   to   quantity   of   material 

necessary,  see  Notice,  l.'J. 

125.  An  experienced  contractor  who  ac- 
cepts a  bid  for  material  for  two  roofs, 
with  sufficient  notice  to  put  him  on  inquiry 
as  to  whether  or  not  the  bidder  is  labor- 
ing under  the  mistaken  belief  that  material 
for  only  one  roof  is  required,  cannot  hold 
the  bidder  to  his  contract,  if  he  was  in  fact 
laboring  under  such  mistake,  but  the  lat- 
ter may  recover  on  a  quantum  meruit  for 
the  material  actually  furnished.  Hudson 
Structural  Steel  Co.  v.  Smith  &  Rumery 
Co.  43:  654,  86  Atl.  384,  110  Me.  123. 

(Annotated) 

126.  The  plea  of  non  est  factum  cannot 
be  supported  by  proof  of  misrepresentation 
as  to  the  contents  of  an  instrument  the  gen- 
eral character  of  which  is  known,  and  of 
which  it  is  within  the  power  of  the  signer 
to  inform  himself.  Howatson  v.  W'ebb,  4 
B.  R.  C.  642,  [1908]  1  Ch.  1.  Also  Report- 
ed in  77  L.  J.  Ch.  N.  S.  32,  97  L.  T.  N.  S. 
730.  (Annotated) 

127.  One  who  has  signed  a  guaranty  in 
the  belief,  induced  by  fraud,  that  it  is  a 
paper  relating  to  insurance,  may  set  up  the 
defense  of  non  est  factum  in  an  action  there- 
on.     Carlisle    &    Cumberland    Bkg.    Co.    v. 


CONTRACTS,  I.  d,  2. 


623 


Bragg,  4  B.  R.  C.  653,  [1911]  1  K.  B.  489. 
Also  Reported  in  80  L.  J.  K.  B.  N.  S.  472, 
104  L.  T.  N.  S.  121.  (Annotated) 

128.  One  who  has  signed  without  exami- 
nation an  instrument,  knowing  it  to  deal 
with  certain  property  the  title  to  which  he 
holds  for  another's  accommodation,  relying 
upon  such  other's  representations  that  it  is 
a  deed  transferring  the  property,  when  in 
fact  it  is  a  mortgage,  is  liable  on  a  covenant 
therein  for  payment  of  principal  and  in- 
terest. Howataon  v.  Webb,  4  B.  R.  C.  642, 
[1908]  1  Ch.  1.  Also  Reported  in  77  L.  J. 
Ch.  N.  S.  32,  97  L.  T.  N.  S.  730.  (Annotated) 

2.  Mutuality. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Of  oral  contract  to  furnish  cars  for  ship- 
ment of  stock,  see  Carriers,  958. 

Want  of  mutuality  as  bar  to  injunction, 
see  Injunction.  26. 

When  insurance  contract  completed,  see  In- 
surance, 83,  128-137. 

Contract  leasing  oil  and  gas  mines,  see 
Mines,  57,  62. 

Of  party  wall  agreement,  see  Party  Walls, 
2. 

As  affecting  specific  performance,  see  Spe- 
cific Performance,  9-18. 

See  also  supra,  74 ;  infra,  706. 

129.  An  agreement  entered  into  between 
competent  parties,  in  order  to  be  binding, 
must  be  mutual,  and  this  is  especially  true 
when  the  consideration  consists  of  mutual 
promises,  and,  if  it  appears  that  one  party 
never  was  bound  on  his  part  to  do  the 
acts  which  form  the  consideration  for  the 
promise  of  the  other,  the  agreement  is  void 
for  want  of  mutuality.  Houser  v.  Hobart, 
43:410,  127  Pac.  997,  22  Idaho,  735. 

130.  The  rule  of  law  that  a  promise  is  a 
good  consideration  for  a  promise  requires 
that  there  should  be  an  absolute,  mutuality 
of  engagements,  so  that  each  party  may 
have  an  action  upon  it,  or  neither  will  be 
bound.  Houser  v.  Hobart,  43:  410,  127  Pac. 
997.  22  Idaho,  735. 

131.  If  a  person,  for  a  consideration  mov- 
ing to  him  from  another,  agrees  co  pay  that 
or  any  other  person's  debt  to  a  third  party, 
the  law,  at  once,  operating  upon  the  acts  of 
the  immediate  parties  to  the  transaction, 
supplies  the  essentials  of  privity  between 
such  person  and  such  third  person,  and 
establishes  binding  contractual  relations  be- 
tween them,  even  though  such  third  party 
was  a  stranger  to  and  had  no  knowledge 
of  the  transaction.  Fanning  v.  Murphy, 
4:  666,  105  N.  W.  1056,  126  Wis.  538. 

132.  The  mere  physical  acceptance  and  at- 
tempted enforcement  by  one  party  of  a  con- 
tract unilateral  in  form,  executed  by  an- 
other, does  not  make  the  former  a  party  to 
the  contract  so  as  to  bind  him  to  its  per- 
formance. Levin  v.  Dietz,  20:  251,  87  N.  E. 
454,  194  N.  Y.  376. 

133.  A  contract  under  seal,  reciting  a  con- 
sideration and  certain  mutual  undertakings 
IViKest  1-52  L.R.A.(N.S.) 


on  the  part  of  the  contracting  parties,  is  not 
void  for  want  of  mutuality.  Mills  v. 
Smith,  6:  865,  78  N.  E.  765,  193  Mass.  11. 

134.  A  covenant  in  a  lease  of  saloon 
premises,  providing  that  the  lessee  shall  sell 
no  beer  thereon  save  that  manufactured  by 
the  lessor,  does  not  lack  mutuality  so  as 
to  be  unenforceable,  although  there  is  no 
express  agreement  on  the  part  of  the  lessor 
to  furnish  the  lessee  with  beer  of  its  manu- 
facture; but  the  covenant  is  enforceable  as 
a  restriction  on  the  use  of  the  premises  by 
the  lessee.  Joseph  Schlitz  Brew.  Co.  v. 
Nielsen,  8:  494,  110  N.  W.  746,  77  Neb.  868. 

135.  An  oil  and  gas  lease  for  the  term 
of  ten  years  and  as  much  longer  as  oil 
or  gas  shall  be  produced  from  the  demised 
premises,  reciting  a  consideration  of  $1,  and 
imposing  conditions  for  the  nonperformance 
of  which  forfeiture  is  imposed,  but  contain- 
ing no  covenant  to  drill  a  well  or  pay  any 
money  for  failure  to  do  so,  creates  a  con- 
ditional tenancy,  binding  upon  the  lessor 
until  expiration  in  accordance  with  the 
terms  of  the  lease,  provided  the  stipulated 
conditions  are  performed,  and  is  not  devoid 
of  mutuality  of  obligation.  South  Penn 
Oil  Co.  V.  Snodgrass,  43:  848,  76  S.  E.  961, 
71  W.  Va.  438. 

136.  A  covenant  in  a  mining  lease  that 
the  lessee  shall  work  and  mine  the  prop- 
erty continuously  means,  in  the  absence  of 
other  provisions,  continuously  to  the  end 
of  the  term;  so  that  the  contract  is  not 
terminable  at  the  pleasure  of  the  cove- 
nantee, and  therefore  is  not  invalid  for 
lack  of  mutuality  as  to  the  term  for  which 
it  is  enforceable.  Zelleken  v.  Lynch,  46: 
659,  104  Pac.  563,  80  Kan.  746. 

137.  A  written  consent  by  a  landlord  to 
an  assignment  of  the  lease,  which  by  its 
terms  cannot  be  made  without  the  landlord's 
written  consent,  if  the  tenant  secures  an  ac- 
ceptable tenant,  is  enforceable  after  the  ten- 
ant has  expended  time  and  labor  in  securing 
such  tenant,  although  by  the  terms  of  the 
contract  he  was  bound  to  do  nothing,  so 
that  the  contract  was  originally  unilateral. 
Underwood  Typewriter  Co.  v.  Century  Real- 
ty Co.  25:  1 173,  119  S.  W.  400,  220  Mo    522. 

(Annotated) 

Sale  of  personal  property. 

Privity  between  seller  or  manufacturer  of 
article  and  person  injured,  see  Negli- 
gence, I.  b,  2. 

See  also  infra,  239. 

138.  Want  of  mutuality  prevents  enforce- 
ment of  a  contract  to  sell  a  specified  quan- 
tity of  whisky  each  year  for  several  years 
under  a  private  brand  to  a  concern  which 
has  established  no  trade  in  such  brand 
which  would  fix,  with  any  degree  of  certain- 
ty, the  quantity  necessary  to  supply  the 
demand,  where  the  contract  provides  that 
if  for  any  unforeseen  reason  the  buyer  can- 
not use  the  whole  amount  named  he  shall 
be  released  from  the  contract  for  the 
amount  desired.  Rehm-Zeiher  Co.  v.  F.  G. 
Walker  Co.  49:  694,  160  S.  W.  777,  156  Ky. 
6. 

139.  The  fact  that  imder  one  of  two  writ- 
ten contracts  of  sale  which  were  unilateral 


624 


CONTRACTS,  I.  d.  3. 


in  character,  the  vendee  specified  certain 
articles  wliicli  lie  desired,  and  wlii'li  wore 
furnished,  renders  it  binding  on  the  parties 
to  the  extent  only  of  the  accepted  articles. 
Atlanta  Buggy  Co.  v.  Hess  Spring  &  Axle 
Co.  4:  431,  5-2  S.  E.  613,  124  (ia.  338. 

140.  A  written  contract  entered  into  be- 
tween a  ])urchiiser  of  certain  goods  and  a 
person  who  signed  for  the  seller,  which  con- 
tained a  provision  that  the  contract  "shall 
only  he  considered  binding  on  the  seller 
when  signed  by  one  or  more  of  its  oIliciTs 
is  uniluLerul  where  it  does  not  appear  tluit 
it  was  ever  so  signed,  or  that  there  was  any 
consideration  for  the  promise  of  the  pur- 
chaser except  the  contemplated  mutual  obli- 
gations to  be  assumed  by  the  seller,  and 
Bince  the  latter  was  not  bound,  neither  is 
the  purchaser,  who  may  withdraw  before 
the  contract  becomes  mutually  binding  by 
acceptance  in  the  manner  agreed  on.  At- 
lanta iJuggy  Co.  V.  Hess  Spring  &  A.\le  Co. 
4:  431,  52  "S.  E.  613,  124  v  a.  338. 

141.  An  accepted  proposal  by  a  manufac- 
turer to  lurnish  all  castings  for  a  certain 
time,  needed  by  an  established  business, 
buyer  to  furnisli  the  tonnage  needed  for  any 
month  by  the  15th  of  the  preceding  one,  anl 
seller  to  in.ike  such  deliveries  as  ti.'?  other 
may  require,  is  not  invalid  for  want  of 
mutuality.  Lima  Locomotive  &  Macli.  Co. 
v.  National  Steel  Castings  Co.  11:713,  155 
Fed.  77,  83  C.  C.  A.  593.  (Annotated) 

142.  A  contract  for  a  certain  number  ol 
wheels,  which  gives  the  purchaser  the  right 
to  taUe  what  its  business  demands  abo^•e 
that  amount  up  to  anotiier  amount  speci- 
fied, is  not  a  nudum  pactum,  as  to  the  op- 
tional portion.  Connersville  Wagon  Co.  v, 
McFarlan  Carriage  Co.  3:  709,  76  N.  E.  294, 
166  Ind.  123. 

Sale  of  real  property. 
As  affecting  specific  performance,  see  Spe- 
cific  Peui'-obmance,   12,   13,   15-18. 
See  also  infra,  162. 

143.  A  contract  for  sale  of  real  estate, 
embodied  in  a  receipt  reciting  payment  of  a 
portion  of  the  purchase  money,  and  the 
amount  and  time  of  payment  of  the  bal- 
ance, is  not  unenforceable  against  the  grant- 
or, as  lacking  in  mutuality.  Jasper  v. 
Wilson,  ^r.  982,  94  Pac.  951,  14  N.  M.  482. 

144.  One  who  has  signed  a  contract  to 
convey  standing  tiniber  cannot  defeat  per- 
formance at  the  suit  of  the  other  party  on 
the  ground  that  the  contract  is  unenforce- 
able because  not  binding  on  the  latter. 
Dennis  Simmons  Lumber  Co.  v.  Corey, 
6:  468,  53  S.  I'].  300,  140  N.  C,  462, 

145.  A  contract  for  the  sale  of  land  is 
not  void  for  lack  of  mutuality  from  the 
fact  that  it  is  not  enforceable  against  the 
vendee,  because  he  did  not  sign  the  memo- 
randum, as  required  by  the  statute  of 
frauds,  at  least,  where  the  statute  provides 
that  a  party  who  has  signed  a  written  con- 
tract may  be  compelled  specifically  to  per- 
form it,  though  the  other  party  has  not 
signed  it,  if  tlie  latter  has  performed  or 
offers  to  perform  it.  Harper  v.  Gold- 
schmidt,  28:  689,  104  Pac,  451,  156  Cal,  245, 

146.  Acceptance,  within  the  time  limited 
Digest   1-52  I..R.A.(N.S.) 


of  an  option  to  purchase  real  estate,  re- 
moves the  objection  to  the  enforcement  of 
the  contract  on  the  ground  of  want  of 
mutuality.  Smith  v.  Bangham,  28:  522, 
104  Pac.'oSO,  156  Cal.  350. 
Contract  of  employment. 

147.  A  contract  by  an  inexperienced  phy- 
sician entering  the  employment  of  an  exper- 
ienced one  nut  to  practise  his  profession 
within  the  city  where  the  latter's  practice 
is  located,  for  a  period  of  five  years,  is  not 
invalid  for  want  of  mutuality,  where  it  is 
ba.sf'd  on  an  agreement  by  the  latter  to  pay 
him  a  monthly  salary  during  his  term  oif 
service,  to  introduce  him  to  patients,  and 
furnish  him  conveyances  for  the  performance 
of  his  duties, — especially  where  the  agree- 
ment has  been  partially  executed.  Freuden- 
thal  v.  Espey,  26:  561,  102  Pac.  280,  45 
(  olo.   488. 

148.  A  written  contract,  signed  by  both 
parties,  whereby  a  corporation  appoints  cer- 
tain persons  its  exclusive  agents  for  a  defi- 
nite term  to  sell  85  per  cent  of  its  entire 
pack  of  fish  at  an  agreed  commission,  and 
such  persons  obligate  themselves  to  use 
their  best  efforts  to  sell  such  pack,  in  pur- 
suance of  which  they  in  fact  perform 
services  and  incur  expenses  in  introducing 
and  selling  it,  is  not  invalid  for  want  of 
mutuality  of  obligation;  and  an  action  for 
damages  will  lie  upon  an  unjustifiable 
breach  of  such  contract.  Emerson  v.  Pacif- 
ic Coast  &  N,  Packing  Co.  1:445,  104  N, 
W.   573,   96    Minn,    1.  (Annotated) 

149.  A  contract  of  employment  is  not  void 
for  want  of  mutuality  because  not  binding 
on  the  employee,  where  it  recites  that  he  is 
to  begin  service  at  a  specified  date,  that  it 
is  nuitually  understood  that  it  is  to  continue 
for  five  years,  and  that  his  willingness  to 
perform  his  duties  is  a  part  of  the  essen- 
tials of  the  agreement.  Butterick  Pub.  Co. 
V.  Whitcomb,  8:  1004,  80  N.  E.  247,  225  111. 
605. 

150.  A  contract  for  employment  is  not 
lacking  in  mutuality  because  the  party  em- 
ployed does  not  bind  himself  to  continue  in 
the  employment  for  a  definite  period.  New- 
hall  V.  Journal  Printing  Co.  20:  899,  117  N. 
W.  228,  105  Minn.  44.  (Annotated) 

3.  Definiteneas. 

(See  also  same  heading  in  Digest  L.R.A. 
1-90.) 

Indefiniteness  as  aflFecting  specific  perform- 
ance, see  Specific  Peefohmance,  19-' 
24. 

151.  An  electric  railway  bonus  contract 
by  the  terms  of  which  the  bonus  is  payabld 
as  soon  as  the  railway  company  or  its  as- 
signs have  constructed  and  put  in  operation 
its  road  from  B.  to  a  certain  described 
strip  of  land,  and  afforded  a  specified  serv- 
ice thereon,  is  certain  and  definite  as  to  the 
time  the  obligation  matures.  Boise  Valley 
Constr.  Co.  v.  Kroeger,  28:  968,  105  Pac. 
1070.  17  Idaho.  .384. 

152.  An  order  for  $300  worth  of  jewelry, 


CONTRACTS,  1.  d,  4. 


G25 


ry,  to  be  made  up  of  articles  named  in  a 
price  list  contained  in  the  order,  is  void, 
where  it  cannot  be  determined  from  the 
writing  itself  either  the  quantity,  quality, 
or  price  of  any  of  the  articles  specified, 
which  the  plaintifls  were  bound  to  ship 
and  which  the  defendant  agreed  to  pur- 
chase. Price  V.  Wiesner,  31:  927,  111  Pae. 
439,  83  Kan.  343.  (Annotated) 

153.  An  indefinite  offer  to  furnish  ties 
within  two  years,  the  total  amount  not  to 
exceed  a  certain  number,  followed  by  an 
acceptance  of  all  that  can  be  furnished  with- 
in a  year  which  come  up  to  regular  specifica- 
tions, becomes  binding  upon  the  delivery  and 
payment  for  ties  under  it,  so  that  neither 
party  can  withdraw  from  it  within  the  year. 
Louisville  &  N.  R.  Co.  v,  Covle,  8:  433,  <J7 
S.  W.  772,  123  Ky.  854.  "  (Annotated) 

154.  An  agreement  between  a  water  com- 
pany and  a  municipal  corporation  which  it 
undertakes  to  supply  with  water,  that  the 
contract  shall  be  renewed  at  the  expiration 
of  a  certain  time  upon  such  terms  as  are 
mutually  agreed  upon  at  that  time,  is  not 
so  indefinite  as  to  be  invalid,  since  it  will 
be  interpreted  as  providing  for  a  renewal  on 
reasonable  terms.  Slade  v.  Lexington,  32: 
201,    132    S.   W.   404,    141    Ky.   214. 

(Annotated) 

155.  An  agreement  of  a  water  company 
to  supply  water  to  certain  land  for  irriga- 
tion purposes  for  a  certain  sum  is  suffi- 
ciently certain  when  the  water  to  be  sold 
is  identified  by  describing  it  as  water  from 
a  certain  river,  to  be  carried  througli  the 
canal  of  the  company,  the  company  having 
but  one  canal  leading  from  that  river,  al- 
though the  lateral  by  which  it  is  to  be  con- 
ducted to  the  land  is  not  described,  except 
by  the  statement  that  the  company  is  to 
deliver  the  water  on  the  land  by  means  of 
such  head  gates,  weirs,  and  devices  as  it 
shall  construct  for  that  purpose,  the  uncer- 
tainty in  this  respect  being  removed  wlien 
the  lateral  ditch  is  constructed.  Stanislaus 
Water  Co.  v.  Bachman,  15:  359,  93  Pac.  858, 
152  Cal.  716. 

156.  A  promise  by  a  street  railway  com- 
pany to  maintain  a  special  rate,  the  amount 
and  duration  of  which  is  not  specified,  to 
suburban  property  which  it  sells  to  one 
proposing  to  develop  it  for  homes,  is  too 
indefinite  for  enforcement,  and  therefore 
the  purchaser  has  no  right  of  action  in  case, 
after  he  has  partially  disposed  of  the  prop- 
erty, the  rate  first  established  is  more  than 
doubled,  so  that  demand  for  the  property 
ceases  and  its  value  is  greatly  depreciated. 
Arundel  Realty  Co.  v.  Maryland  Electric 
Rys.  Co.  38:  157,  81  Atl.  787,  116  Md.  257. 

(Annotated) 

157.  A  contract  for  the  ornamental  work 
of  a  building,  in  which  the  scale  drawings 
are  so  indefinite  that  the  requirements  can- 
not be  ascertained,  is  invalid  for  want  of 
meeting  of  minds,  although  it  provides  that 
the  architect  shall  have  power  to  determine 
its  true  construction,  and  he  furnishes  detail 
drawings  in  accordance  with  his  determina- 
tion. Snead  &  Co.  Iron  Works  v.  Merchants' 
Digest  1-52  I<.R.A.(N.S.) 


Loan  &  T.   Co.   9:  1007,  80  N.   E.  237,  225 

111.  442. 

Contract  of  employment. 

158.  No  recovery  can  be  had  for  breach  of 
a  contract  to  give  an  injured  employee  a 
permanent  job  in  consideration  of  a  release 
of  all  claims  for  damages,  which  does  not 
specify  the  job  which  he  is  to  have,  or  the 
compensation  he  is  to  receive  for  his  work. 
Ingram-Day  Lumber  Co.  v.  Rodgers,  48:  435, 
62  So.  230,  105  Miss.  244.  (Annotated) 
For  support. 

159.  A  contract  to  support  a  woman  in 
consideration  of  a  release  from  a  promise 
to  marry  her  is  not  too  indefinite  and  un- 
certain to  be  enforceable.  Henderson  v. 
Spratlen,  19:  655,  98  Pac.  14,  44  Colo.  278. 

4.  Offers  and  their  acceptance  or  with- 
clraxcal. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Consideration  for  option,  see  supra,  61. 

Revocability  of  option  contract,  see  infra, 
729. 

Assignment  of  option  contract,  see  Assign- 
ment, 27.. 

Estoppel  of  one  having  option,  to  complain 
that  offer  for  property  was  not  bona 
fide,  see  Estoppel,  206. 

Parol  evidence  that  contract  was  intended 
to  be  an  option,  see  Evidence,  956. 

Parol  evidence  to  show  absence  of  considera- 
tion, see  Evidence,  1004. 

Option  by  executor,  see  Executors  and  Ad- 
ministrators, 43,  44,  54. 

Effect  as  to  strangers  of  decree  for  specific 
performance  of  option  contract,  see 
Judgment,  236. 

Landlord's  waiver  of  right  to  forfeit  option 
to  purchase  property,  see  Landlord 
AND  Tenant,  79. 

Sale  by  receiver  under  order  of  court  of 
option  to  purchase  in  lease  as  violation 
of  provision  against  assignment,  see 
Landlord  and  Tenant,  80. 

When  right  of  action  under  option  accrues, 
see  Limitation  of  Actions,  125. 

To  work  oil  and  gas  mines,  see  Mines,  50, 
52,  57,  58,  71,  72,  80. 

To  use  party  wall,  see  Party  Wall,  18. 

Option  of  purchase  in  lease  as  infringing 
rule  against  perpetuity,  see  Perpetui- 
ties, 4. 

For  purchase  of  land  as  within  rule  against 
perpetuities,  see  Perpetuities,  4,  8,  9, 
27,  34. 

Right  to  change  terms  of  accepted  offer  of 
specified  compensation  based  on  paid 
subscriptions  to  newspaper,  see  Prize 
Contest,  1. 

Acceptance  by  purchaser,  see  Sale,  I.  d. 

Specific  performance  of  option  contract,  see 
Specific  Performance,  14,  15,  35,  82- 
86,  117. 

Option  contract  as  taxable  credit,  see 
Taxes,  64. 

Tender  of  liquidated  damages  as  condition 
of  withdrawing  from  contract,  see 
Tender,  22. 


40 


626 


CONTRACTS,  I.  d,  4. 


Question  for  jury  as  to  diligence  in  accept- 
ing oflfer,  see  Trial,  218,  222. 

Surrender    of    option    to    purchase    mining 

claim,  see  Vendor  and  Purchaser,  7. 
^Rights  of  optionee  who  accepts  option  after 
sale  of  property  to  third  person  with 
notice  of  option,  see  Vendor  and  Pur- 
chaser, 104,  105. 

See  also  supra,  142,  146;    infra,  210,  500, 
60.3;  Sale,  107. 

160.  The  acceptance,  within  the  time 
specified,  of  an  option  which  had  been  given 
for  a  nominal  consideration  to  purchase  real 
estate  belonging  to  a  husband,  supersedes 
the  wife's  declaration  of  homestead  upon 
the  property  made  with  notice  of  the  op- 
tion, after  it  had  taken  effect.  Smith  v. 
Bangham,  28:  522,  104  Pac.  689,  156  Cal. 
359.  •    (Annotated) 

161.  An  offer  of  specified  compensation  to 
the  person  obtaining  the  highest  vote  based 
on  paid  subscriptions  to  a  newspaper,  after 
acceptance  and  part  performance  of  the 
terms  of  the  offer,  becomes  an  executory 
contract  between  the  person  making  and  the 
person  so  accepting  the  terms  of  the  offer. 
Mooney  v.  Daily  News  Co.  37:  183,  133  N. 
W.  573,  116  Minn.  212. 

162.  Acceptance  of  an  option  to  purchase 
real  estate  within  the  time  granted,  and 
before  its  withdrawal,  supplies  the  neces- 
sary lutuality  of  obligation,  and  renders 
the  contract  binding.  Murphy  v.  Reiil,  10: 
195,  101  S.  W.  964,  125  Ky.  585. 

1G3.  That  a  landowner  who  had  given  a 
prospective  purchaser  an  option  upon  the 
coal  underlying  his  land,  which  option  had 
expired  by  limitation  of  time,  thereafter 
stated  that  he  was  not  being  paid  enough 
for  the  property,  and  employed  a  person  to 
assist  in  curing  certain  defects  in  his  title 
and  co-operated  with  him  in  doing  the  work, 
does  not  have  the  effect  of  extending  the 
time  within  which  the  option  may  be  ac- 
cepted. Pollock  v.  Brookover,  6:  403,  53  S. 
E.  795,  60  W.  Va.  75. 

164.  The  requirement,  by  one  who  has 
contracted  to  purchase  real  esLate  from  a 
corporation,  of  further  resol.itions  on  its 
part  for  thj  completion  of  the  transfer,  does 
not  show  a  refusal  to  accept  the  offer  of 
sale.  Western  Timber  Co.  v.  Kalama  River 
Lumber  Co.  6:  397,  85  Pac.  338,  42  Wash. 
620. 

165.  Failure  of  one  who  has  made  a  void 
parol  offer  to  purchase  chattels  in  his  pos- 
session to  reply  to  a  letter  accepting  the  of- 
fer, does  not  affect  a  contract  binding  upon 
him.  Godkin  v.  Weber,  20:  498,  117  N.  W. 
628,  154  Mich.  207. 

166.  Where,  in  response  to  plaintiff's  re- 
quest for  a  quotation  on  3,000  yards  of 
canvas,  with  the  shortest  time  for  delivery, 
defendant  replied  quoting  a  price  and  stat- 
ing, "Delivery  of  3,000  yards  in  five-six 
weeks,"  to  which  plaintiff  responded, 
"Please  get  made  for  us  3,000  yards  canvas 
32i  inches  wide  as  per  your  quotation  at 
4|d.  per  yard;  deliver  same  as  quickly  as 
possible.  As  we  have  not  had  the  pleasure 
of  d«ing  business  with  you  before,  we  give 
Digest  1-52  L.R.A.(N.S.) 


you  as  references,"  etc., — there  was  no  offer 
and  acceptance  so  as  to  constitute  a  contract 
on  the  part  of  the  manufacturer  to  furnish 
3,000  yards  of  canvas  at  tlie  price  named. 
Boyers  &  Co.  v.  Duke,  3  B.  R.  C.  220,  [1905] 
2  1.  R.  617.  (Annotated) 

Necessity  of  acceptance. 
Necessity  of  acceptance  of  employment  un- 
der resolution  of  county  supervisors  to 
employ  superintendent  for  construction 
of  building,  see  Counties,  35. 
Necessity  of  acceptance  of  guaranty  to  com- 
plete contract,  see  Guaranty,  11-16. 
As  requisite  to  action  for  specific  perform- 
ance, see  Specific  Performance,  14. 
See  also  infra,  190. 

167.  Until  tiiere  has  been  an  acceptance 
of  a  written  order  for  machinery  to  be 
shipped  to  the  purchaser  at  a  future  date, 
the  latter  is  at  liberty  to  countermand 
such  order,  as  the  same,  until  acceptance, 
does  not  constitute  a  contract,  but  merely 
an  offer  or  proposal  to  purchase.  J.  L. 
Owens  Co.  v.  Bern  is,  37:  232,  133  N.  W.  59, 
22  N.  D.  159. 

168.  Under  an  option  to  purchase  the 
coal  underlying  certain  land,  in  which  it  is 
provided  that,  unless  the  optionee  accept 
the  same  and  pay  one  third  of  the  purchase 
money  uithin  a  stipulated  time,  the  option 
shall  be  null  and  void,  and  the  parties 
mutually  released  therefrom,  it  is  a  con- 
dition precedent  to  the  consummation  of  an 
executory  contract  of  sale  between  the 
parties  that  the  option  be  accepted  and  the 
money  paid  within  the  time  limited.  Pol- 
lock v.  Brookover,  6:  403,  53  S.  E.  795,  60 
W.  Va.  75. 

169.  The  mere  waiver  of  payment  of  the 
purchase  money  as  required  in  a  contract 
giving  an  option  to  purchase  real  estate 
does  not  close  the  bargain,  without  accept- 
ance of  the  proposal  as  made.  Trogdon  v. 
Williams,  10:  867,  56  S.  E.  865,  144  N.  C. 
192. 

170.  Notice  by  a  aejler  of  wheels,  after 
delivering  a  portion  of  the  number  called  for 
by  the  contract,  that  he  will  not  comply 
with  the  remainder  of  the  contract  which 
gives  the  purchaser  the  option  to  demand 
whatever  additional  number  he  may  need 
up  to  a  specified  limit,  relieves  the  pur- 
chaser of  the  duty  of  giving  further  notice 
of  acceptance.  Connersville  Wagon  Co.  v. 
McFarlan  Carriage  Co.  3:  709,  76  N.  E.  294, 
166  Ind.  123. 

171.  The  furnishing  for  a  couple  of  years 
of  a  portion  of  the  whisky  called  for  by 
an  unaccepted  offer  to  sell  a  specified  quan- 
tity each  year  for  a  series  of  years  does 
not  bind  the  seller  to  performance  of  the 
contract.  Rehm-Zeiher  Co.  v.  F.  G.  Walker 
Co.  49:  694,  160  S.  W.  777,  156  Ky.  6. 
Sufficiency  of  acceptance. 

172.  Acceptance  of  an  option,  and  subse- 
quent performance,  are  different  matters; 
and  where  the  acceptance  is  unconditional, 
suggestions  or  demands  as  to  performance, 
not  qualifying  or  rendering  the  acceptance 
conditional  upon  compliance  with  such  de- 
mands, will  not  invalidate  such  acceptance. 


CONTRACTS,  I.  d,  4. 


627 


Horgan  v.  Russell,  43:  1150,  140  N.  W.   99, 
24  N.  D.  490. 

173.  A  definite  and  unconditional  ac- 
ceptance in  accordance  with  the  manner 
and  terms  stipulated  in  an  option  contract 
is  not  avoided  or  rendered  uncertain  or 
conditional  by  matter  contained  in  the  ac- 
ceptance concerning  the  method  of  perform- 
ance, or  where  payment  should  be  made, 
or  by  a  demand  for  an  abstract,  which  the 
sellers  under  the  terms  of  the  option  were 
not  obligated  to  furnish,  where  the  uncon- 
ditional acceptance  is  not  qualified  or  made 
conditional  upon  compliance  with  such  re- 
quests or  demands  concerning  performance. 
Horgan  v.  Russell,  43:  1150,  140  N.  W.  99, 
24  N.  D.  490. 

174.  Acceptance  of  an  offer  to  sell  a  speci- 
fied quantity  of  whisky  each  year  for  a 
period  of  years  sufficient  to  bind  the  seller 
to  a  complete  delivery  is  not  eflected  by  re- 
ceiving and  paying  for  a  portion  of  the 
quantity  specified  for  a  couple  of  years. 
Rehm-Zeiher  Co.  v.  F.  G.  Walker  Co.  49: 
694,   160   S.   W.  777,   156  Ky.   6. 

175.  A  telegram  to  a  bidder  for  public 
work,  "You  are  low  bidder.  Come  on  morn- 
ing train,"  does  not  conclude  a  contract  with 
him.  Cedar  Rapids  Lumber  Co.  v.  Fisher, 
4:  177,   105  N.  W.  595,   129  Iowa,  332. 

(Annotated) 

176.  An  acceptance  by  telegram  of  an  of- 
fer by  mail,  which  does  not  specify  any 
mode  of  acceptance,  does  not  complete  the 
contract  until  thtf  telegram  is  delivered  to 
the  sendee.  Lucas  v.  Western  U.  Teleg.  Co. 
6:  1016,  109  N.  W.  191,  131  Iowa,  669. 

(Annotated) 

177.  The  signature  by  a  traveling  sales- 
man of  a  customer's  order  for  goods  does 
not  constitute  an  acceptance  on  the  part  of 
his  employer,  where  the  latter  reserved  the 
right  to  pass  on  the  orders  sent  in.  Baird 
V.  Pratt,  10:  1116,  148  Fed.  825,  78  C.  C.  A. 
615. 

178.  A  communication  from  a  seller  of 
goods  acknowledging  the  receipt  of  an  or- 
der placed  with  his  commercial  traveler, 
and  stating  that  the  order  will  receive 
prompt  and  careful  attention,  may  be  re- 
garded as  having  been  interpreted  as  an 
acceptance  by  both  parties,  where  it  is  fol- 
lowed by  a  correspondence  between  tliem  in 
which  the  buyer  claims  a  right  to  change  or 
cancel  the  order  at  any  time  in  virtue  of  an 
asserted  special  agreement  made  with  him 
by  the  agent  who  took  it,  and  the  seller  de- 
nies the  existence  of  such  a  right  and  the 
making  of  such  an  agreement.  Bauman  v. 
McManus,  10:  1138,  89  Pac.  15,  75  Kan.  106. 

179.  A  letter  written  by  the  seller  of 
goods  to  the  buyer,  acknowledging  the  re- 
ceipt of  the  latter's  order  placed  with  a 
commercial  traveler,  and  stating  that  it  will 
receive  prompt  and  careful  attention,  is  in 
itself  either  an  absolute  acceptance  of  the 
order,  or  such  an  expression  as  may,  in  con- 
nection with  an  otherwise  unexplained 
omission  for  a  long  time  to  make  any  fur- 
ther response,  give  rise  to  an  inference  of 
acceptance  or  be  treated  as  such,  if  the  sub- 
sequent conduct  of  the  parties  indicates  that 
Digest   1-52  L.R.A.(N.S.) 


they  have  each  so  treated  it.  Bauman  v. 
McManus,  10:  11.38,  89  Pac.  15,  75  Kan.  100. 
Tender   of   pnrcliase    price. 

As  condition  to  right  to  specific  perform- 
ance, see  Specific  Pebfokmaxce,   117. 

Sufficiency  of  tender  of  money  in  accept- 
ance of  option,  see  Tender,  10,  11. 

180.  Tender  of  the  purchase  price  is  neces- 
sary to  convert  into  a  binding  contract  an 
option  to  purcliase  real  estate  which  pro 
vides  that  if  within  the  time  specified  the 
optionee  elect  to  purchase,  then  he  shall 
pay  the  purchase  price.  Trogdon  v.  Wil- 
liams, 10:  867,  56  S.  E.  865,  144  N.  C.  192. 
Time   as   essence   of. 

Time  as  essence  of  contract  by  real  estate 
agent  to  secure  purchaser,  see  Brok- 
ers, 48. 

Question  for  jury  as  to  whether  offer  is  ac- 
cepted within  time,  see  Trial,  218,  222. 

181.  Time  is  of  the  essence  of  an  option 
to  purchase  real  estate.  Trogdon  v.  Wil- 
liams, 10:  867,  56  S.  E.  865,  144  N.  C.  192. 

182.  In  favor  of  bona  fide  purchasers  a 
recorded  option  to  purchase  real  estate  ter- 
minates with  the  expiration  of  the  time 
specified  therein,  if  no  record  of  an  exten- 
sion or  conveyance  is  made.  Trogdon  v. 
Williams,  10:  867,  56  S.  E.  865,  144  N,  C. 
192. 

183.  W^here  an  option  contract  for  the 
purchase  of  land  contains  a  stipulation  as 
to  the  manner  of  acceptance  and  the  period 
of  time  within  which  acceptance  might  be 
made,  and  provides  that  the  time  shall 
be  of  the  "essence  of  this  agreement,"  and 
a  subsequent  stipulation  as  to  performance 
and  time  of  performance  to  be  allowed  the 
parties  after  acceptance  of  the  option  of 
purchase,  the  time  within  which  the  ac- 
ceptance was  to  be  made  was  of  the  essence 
of  the  contract;  but  the  time  within  which 
the  contract  was  to  be  performed  after  ac- 
ceptance, not  being  clearly  and  beyond 
question  stipulated  to  be  of  the  essence 
of  the  contract,  a  performance  attempted 
by  a  tender  of  payment  by  the  purchaser 
three  days  after  the  expiration  of  said  time 
stipulated  is  within  time,  and  valid  in 
equity.  Horgan  v.  Russell,  43:  1150,  140 
K.  W.  99,  24  N.  D.  490. 

184.  One  contracting  for  the  conveyance 
of  land  upon  demand  must  make  the  de- 
mand within  a  reasonable  time,  and  is  not 
privileged  to  postpone  performance  on  his 
part  indefinitely.  Smith  v.  Bangham, 
28:  522,  104  Pac.  689,  156  Cal.  359. 

185.  The  option  reserved  to  the  purchaser 
of  bonds  by  a  stipulation  that  if,  after  con- 
sulting others,  she  should  desire  to  with- 
draw her  investment,  she  might  at  any 
time  return  the  bonds  and  withdraw  her  in- 
vestment with  a  6  per  cent  earning  per 
annum,  must  be  exercised  within  a  reason- 
able time.  Brooks  v.  Trustee  Co.  50:  594, 
136  Pac.  1152,  76  Wash.  589.     (Annotated) 

186.  The  exercise  of  an  option  to  rescind 
a  purchase  within  a  reasonable  time,  more 
than  six  years  after  the  transaction,  is  too 
late.  Brooks  v.  Trustee  Co.  50:  594,  136 
Pac.  1152,  76  Wash.  589. 


G28 


CONTRACTS,  I.  e,  1. 


Effect  of  death  after  acceptance. 

187.  The  death  of  insured  between  the 
mailing  of  liis  acceptance  of  an  option  to 
which  he  is  entitled  under  the  policy  and  its 
receipt  by  the  company  will  not  nullify  the 
acc»j)tance,  but  the  rights  under  the  policy 
will  be  adjusted  in  accordance  therewith. 
Northwestern  Mut.  L.  Jns.  Co.  v.  Joseph,  12: 
439,  103  S.  W.  317,  31  Ky.  L.  Rep.  714. 

(Annotated) 
Withdrawal  of  offer. 
See  also  Specific  Perform.4nce,  15. 

188.  The  giving  of  a  nominal  considera- 
lion  for  an  option  to  purchase  real  estate  is 
not  sullicient  to  prevent  its  withdrawal  be- 
fore acccptinnce.  Murphv  v.  Reid,  10:  195, 
101  S.  W.  964.  125  Ky.  585. 

189.  An  undelivered  written  acceptance 
of  an  offer  to  sell  land,,  upon  which  no  pay- 
ment? has  been  made,  does  not  bind  the  pur- 
chaser, and  therefore,  since  there  is  no 
mutuality  of  obligation,  the  offer  may  be 
withdrawn.  HoUingshead  v.  Morris,  41: 
310,  137  N.  W.  527,  172  Mich.  126. 

190.  Since,  in  the  absence  of  evidence  to 
the  contrary,  the  presumption  is  that  an 
order'  for  goods  taken  by  a  conunercial  trav- 
eler is  subject  to  approval  by  the  house 
which  he  represents,  and  no  contract  re- 
sults until  such  order  is  accepted,  the  pro- 
posed buyer  has  an  unqualified  right  to 
withdraw  such  an  order  at  any  time  before 
it  is  accepted.  Baunian  v.  McManus,  10: 
1 1 38,  89  Pac.  15,  75  Kan.  106.     (Annotated) 

191.  The  acceptance  of  an  order  taken  by 
a  traveling  salesman  is  not  ell'ected  by  ship- 
ping the  goods  and  sending  by  mail  an  in- 
voice a,iid  bill  for  them,  the  terms  of  the 
contract  in  which  are  different  from  those 
contained  in  the  order;  and  the  purchaser 
has  the  right,  upon  inspection  of  the  new 
proposition,  to  withdraw  his  order.  Baird 
v.  Pratt,  id:  ih6,  148  Fed.  825,  78  C,  C.  A. 
515. 

192.  A  letter  to  one  to  whom  an  order 
had  been  sent,  requesting  cancelation  of  the 
order,  giving  its  date,  which  is  received  be- 
fore the  order  is  accepted,  is  a  sufiicient 
cancelation.  J.  L.  Owens  Co.  v.  Bemis, 
37:  232,  133  N.  W.  59,  22  N.  D.  159. 

e.  F&i^tnal  requisites ;  statute  of  frauds. 

l.^In  general;  personal  property. 

(See  also  same  heading  in  Digest  L.R.A. 
i-10.) 

Parol  modification  of  written  contract,  see 
infra,  707-710. 

Right  of  auctioneer  to  sign  bidder's  name, 
see  Auctions,  10. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  130,  137. 

Constitutionality  of  statute  requiring  as- 
signment of  wages  to  be  accepted  in 
writing,  see  Constitutional  Law,  181, 
519. 

Equal  privileges  and  immunities,  see  CoNSTi- 
'      tutional  Law,  236,  237. 

Police  power  as  to,  see  Constitutional 
Law,  690. 

Digest   1-52  L.R.A.(N.S.) 


Formal  requisites  of  corporate  contract, 
generally,  see  Corporations,  IV.  d,  3. 

Form  and  requisites  of  deed,  see  DEaa)S, 
I.  a. 

Taking  of  property  without  compensation  by 
statute  as  to,  see  Emi.nem  Loaiain, 
221. 

Parol  evidence  to  vary  written  contract,  see 
Evidence,  VI. 

Requiring  transfer  of  chattels  between  hus- 
band and  wife  to  be  in  writing,  see 
Husband  and  Wife,  104. 

Oral  agreement  as  to  insurance  rates  or 
premiums,  see  Insurance,  415-417. 

Necessity  of  pleading  statute  of  frauds,  see 
Pleading,  493-495. 

Sufficiency  of  allegations  as  to,  see  Plead- 
ing, 531. 

Burden  of  proving  contract  valid  under  stat- 
ute of  frauds,  see  Pleading,  531. 

Raising  defense  of  statute  of  frauds  by  de- 
murrer, see  Pleading,  620,  621. 

Specific  performance  of  oral  contract,  see 
Specific  Performance,  I.  b. 

As  to  parol  trusts,  see  Trusts,  I.  c. 

See  also  supra,  26. 

193.  A  parol  contract  between  parties  con- 
templating marriage,  looking  to  the  control 
of  their  separate  estates,  is  invalid  under  a 
statute  providing  that  all  contracts  made  in 
contemplation  of  marriage  must  be  in  writ- 
ing, and  is  not  validated  by  the  consumma- 
tion of  the  marriage.  Frazer  v.  Andrews, 
11:  593,  112  N.  W.  92,  134  Iowa,  621. 

194.  The  placing  in  writing  after  marriage 
of  an  agreement  by  which  each  party  re- 
linquishes all  right  in  the  other's  property 
in  accordance  with  an  antenuptial  parol  con- 
tract which  is  invalid  under  the  statute  of 
frauds  does  not  validate  the  latter,  unless 
it  recites  that  it  is  executed  to  furnish  evi- 
dence of  the  previous  one,  and  is  ineffectual, 
where  the  statute  forbids  contracts  between 
husband  and  wife  relating  to  their  property 
rights  Frazer  v.  Andrews,  11:593,  ^^2  N. 
VV.  92,  134  Iowa,  621.  (Annotated) 

195.  An  oral  antenuptial  agreement  which 
is  made  void  by  statute  cannot  be  validated 
by  an  agreement  embodying  its  terms,  exe- 
cuted after  marriage.  Rowell  v.  Barber, 
27:  1 140,  125  N.   W.  937,  142  Wis.  304. 

196.  Words  written  on  the  back  of  a  con- 
tract blank  as  a  portion  of  the  instrument 
to  be  signed  by  the  parties  become  part  of 
the  obligation,  although  the  signatures  are 
not  below  them,  but  on  the  preceding  page. 
Bonewell  v.  Jacobson,  5:  436,  106  N.  W.  614, 
130  Iowa,   170.  (Annotated) 

197.  A  contract  to  compensate  one  who 
has  performed  services  by  legacy,  in  con- 
sideration of  his  waiving  present  enforce- 
ment of  t>he  claim,  is  independent,  and  not 
a  new  promise  to  pay  the  old  claim,  with- 
in the  provision  of  the  statute  that  no  such 
promise  shall  take  a  claim  out  of  the  opera- 
i  on  of  the  statute  of  limitations  unless  in 
writing.  Murtha  v.  Donohoo,  41:  246,  136 
N.  W.  158,  149  Wis.  483. 

198.  A  stated  account  on  a  promissory 
note,  which  rests  in  parol,  is  not  sullicient 
to  toll  the  statute  of  limitations,  under  A 

t  A).t...  ifi 


CONTRACTS,  I.  e,  2. 


629 


statute  providing  that  no  act,  promise,  or 
acknowledgment  is  sufficient  to  remove  the 
bar  to  a  suit  created  by  the  statute,  except 
a  partial  payment,  or  an  unconditional 
promise  in  writing  signed  by  the  person  to 
be  charged  thereon.  Jasper  Trust  Co.  v. 
Lamkin,  24:  1237,  50  So.  'VM.  162  Ala.  388. 
Representations  as  to  another's  credit. 

199.  Representations  as  to  another's  cred- 
it, although  made  fraudulently  or  in  pur- 
suance of  a  conspiracy  to  defraud,  are  with- 
in the  provisions  of  the  statute  of  frauds 
that  no  action  shall  be  brought  to  charge 
any  person  by  reason  of  any  representation 
concerning  another's  credit,  unless  it  is  in 
writing  duly  signed.  Knight  v.  Rawlings, 
13:  212,  104  S.  W.  38,  205  Mo.  412. 

(Annotated) 

Sale  of  personal  property. 

As  to  effect  of  part  perfonnance,  see  infra, 
309-316. 

Failure  of  declaration  to  show  whether  con- 
tract was  obnoxious  to  statute  of 
frauds,  see  Pleading,  259. 

See  also  Sale,  45. 

200.  A  promise  by  a  creditor,  made  to  in- 
duce his  debtor  to  secure  the  indebtedness 
by  a  mortgage  on  a  stock  of  goods,  that  he 
will  Hot  permit  the  property  to  be  sold  un- 
der foreclosure  for  less  than  a  specified  sum. 
is  not  an  agreement  for  the  purchase  of 
goods  in  the  future,  within  §  9  of  the  stat- 
ute of  frauds,  requiring  such  agreements 
to  be  in  writing.  Cerny  v.  Paxton  &  G.  Co. 
id:  640,  110  N.  W.  882,  78  Neb.  134. 

201.  An  authorization  by  one  to  another 
to  purchase  for  him  stock  from  a  third  per- 
son is  not  within  the  provision  of  the  stat- 
ute of  frauds  requiring  contracts  for  the 
sale  of  goods  to  be  in  writing.  Wiger  v. 
Carr,  11:  650,  111  N.  W.  657,  131  Wis.  584. 

(Annotated) 

202.  A  contract  by  a  manufacturer  of 
dishes  to  fill  an  order  for  a  certain  number, 
bearing  the  monogram  of  the  purchaser, 
constitutes  a  contract  for  work  and  labor, 
not  within  the  statute  of  frauds,  where  the 
value  of  the  undecorated  dish  is  a  small 
part  of  the  final  cost,  although  compliance 
with  the  contract  will  result  in  a  sale  of 
the  dishes.  Re  Gies,  30:  318,  125  N.  VV.  420, 
160  Mich.  502.  (Annotated) 

203.  A  contract  to  assemble  and  install 
a  soda-water  fountain,  with  counter,  base, 
and  superstructure,  of  particular  dimen- 
sions and  special  design,  prepared  by  an- 
other, is  one  for  work  and  labor,  and  not 
for  the  sale  of  goods  and  chattels,  which 
the  statute  of  frauds  requires  to  be  in 
writing.  Bond  v.  Bourk,  43:  97,  129  Pac. 
223,  54  Colo.   51.  (Annotated) 

204.  Issued  shares  in  a  corporation  are 
good  within  the  meaning  of  the  statute  of 
frauds,  and  oral  contracts  for  their  sale 
which  do  not  comply  with  the  terms  of  that 
statute  are  invalid.  Sprague  v.  Hosie,  19: 
874,  118  N.  W.  497,  155  Mich.  30. 

(Annotated) 

205.  A  contract  for  the  sale  of  corporate 
stock  is  within  the  provision  of  the  statute 
of  frauds  requiring  to  be  in  writing  con- 
tracts affecting  goods,  chattels,  or  things  in 
Digest   1-52  L.R.A.(N.S.) 


action.     Franklin   v.   Matoa   Gold   Min.   Co. 
16:  381,  158  Fed.  941,  86  C.  C.  A.  145. 

201).  A  contract  for  the  sale  of  corporate 
stock  thereafter  to  be  issued  is  one  for  the 
sale  of  goods,  wares,  and  merchandise,  with- 
in the  meaning  of  the  statute  of  frauds. 
Hewson  v.  Peterman  Mfg.  Co.  51:  398,  136 
Pac.   1158,   76   Wash.   600.  (Annotated) 

207.  A  parol  contract  to  transfer  to  an 
attorney  shares  of  corporate  stock  for  serv- 
ices thereafter  to  be  rendered  is  void  under 
a  statute  requiring  contracts  for  the  sale  of 
goods  and  chattels  to  be  in  writing  unless  the 
buyers  shall  at  the  time  pay  some  part  of 
the  purchase  money;  and  the  fact  that  serv- 
ices are  rendered  at  the  time  the  contract  is 
made  is  immaterial.  Franklin  v.  Matoa 
Gold  Min.  Co.  16:  381,  158  Fed.  941,  86  C.  C. 
A.   145.  (Annotated) 

208.  An  oral  promise  to  a  Young  Men's 
Christian  Association  to  give  a  specific  sum 
of  money  for  the  construction  of  a  building, 
to  be  devoted  to  carrying  out  the  design 
of  such  corporation,  as  soon  as  the  work 
begins,  is  not  a  subscription  to  shares  of 
a  commercial  corporation,  and  is  not  within 
the  clause  of  the  statute  of  frauds  whicli 
requires  contracts  for  the  sale  of  goods, 
wares,  and  merchandise  to  the  amount  of 
$50  or  more  to  be  in  writing.  Young 
Men's  Christian  Asso.  v.  Estill,  48:  783,  78 
S.  E.  1075,  140  Ga.  291. 

209.  A  contract  to  furnish,  within  a  year, 
all  the  ties  that  can  be  gotten  out  by  the 
contracting  party,  not  to  exceed  6,000,  is 
hot  required  by  the  statute  of  frauds  to  be 
in  writing.  Louisville  &  N.  R.  Co.  v.  Coyle, 
8:  433,  97  S.  W.  772,  123  Ky.  854. 

210.  A  contract  for  tlie  purchase  of 
wheels  to  be  delivered  within  a  year,  which 
gives  the  purchaser  the  option  to  take  an 
additional  number  up  to  a  specified  limit,  is 
not  within  the  statute  of  frauds  as  to  the 
optional  portion,  since  each  order  given  con- 
stitutes an  acceptance  pro  tanto.  Conners- 
ville  Wagon  Co.  v.  McFarlan  Carriage  Co. 
3:  709,  76  N.  E.  294,  166  Ind.   123. 

2.  Collateral  contracts^  debts  of  others. 

(Hee   also    same    heading    in   Digest    L.R.A. 
1-70.) 

See  also  infra,  308. 

211.  A  collateral  oral  promise  by  one  tp 
pay  another's  debt  is  not  binding  where  no 
benefit  accrues  to  the  person  making  such 
promise.  Mankin  v.  Jones,  15:214,  60  S.  E. 
248.    63    W'.    Va.    373.  (Annotated) 

212.  An  oral  promise  to  pay  the  debt  of 
another  is  not  binding  on  the  promisor, 
where  the  original  debtor  still  remains  lia- 
ble for  the  payment  of  the  indebtedness. 
Mankin  v.  Jones,  15:  214,  60  S.  E.  248,  63 
W.  Va.  373. 

213.  One  is  not  bound  by  a  mere  promise 
to  pay  the  debt  of  another  unless  the  prom- 
ise be  in  writing,  signed  by  the  promising 
party.  Mankin  v.  Jones,  15:  214,  60  S.  E. 
248, '63  W.  Va.  373. 

214.  An  oral  promise  to  pay  the  debt  of 


030 


COJ^TRACTS,  I.  e,  2, 


another,  in  order  to  derive  some  benefit  to 
the  promisor  thereby  which  he  would  not 
otherwise  have,  is  an  original  undertaking, 
and  not  within  the  statute  of  frauds,  even 
though  the  original  promisor  be  not  re- 
leased. Howell  V.  Harvev,  22:  1077,  64  S. 
E.  249,  65  W.  Va.  310.       "  (Annotated) 

215.  If  the  main  purpose  of  an  oral  prom- 
ise by  one  person  to  pay  a  sum  of  money  for 
which  another  is  liable  or  may  become  liable 
is  to  secure  a  direct,  personal,  and  pecu- 
niary benefit  to  the  promisor,  the  promise 
is  original,  and  not  within  the  statute  of 
frauds,  though  such  third  person  remain 
liable  for  the  debt.  Hurst  Hardware  Co.  v. 
Goodman,  32:  598,  69  S.  E.  898,  68  W.  Va. 
462. 

216.  If  property  be  delivered  or  services 
rendered  to  one  person  upon  an  oral  prom- 
ise of  payment  by  another,  and  charged 
only  to  the  person  to  whom  the  delivery  was 
so  made  or  for  whom  services  were  so  ren- 
dered, and  an  effort  made  to  collect  tho 
purchase  money  or  compensation  from  the 
person  against  whom  the  charge  was  made, 
such  promise  is  collateral,  and,  if  not  in 
writing,  void.  Hurst  Hardware  Co.  v.  Good- 
man, 32:  598,  69  S.  E.  898,  68  W.  Va.  462. 

(Annotated) 

217.  The  oral  promise  of  an  officer  and 
stockholder  of  a  corporation,  who  is  liable 
as  an  indorser  on  its  paper  and  for  debts 
or  obligations  assumed  by  the  corporation, 
to  pay  for  goods  sold  and  delivered  to  it, 
is  collateral  and  within  the  statute;  the 
benefit  accruing  to  him  from  such  sale  and 
delivery  being  remote  and  indirect.  Hurst 
Hardware  Co.  v.  Goodman,  32:  598,  69  S.  E. 
898,  68  W.  Va.  462. 

218.  A  promise  by  one  who  has  given 
the  obligation  of  a  corporation  of  which 
he  is  president,  for  his  own  debt,  to  pay  the 
same,  is  not  void  under  the  statute  of 
frauds,  as  a  promise  to  pay  the  debt  of 
another.  Donovan  v.  Purtell,  i:  176,  75  N. 
E.  334,  216  111.  629. 

21s.  An  agreement  made  by  a  creditor  to 
induce  his  debtor  to  secure  the  indebtedness 
by  mortgage  upon  a  stock  of  goods,  that  he 
will  not  permit  the  property  to  be  sold  un- 
der foreclosure  below  a  certain  price,  is  not 
a  collateral  undertaking,  but  a  part  of  the 
original  consideration  whereby  the  debtor 
is  induced  to  execute  the  mortgage.  Cerny 
v.  Paxton  &  G.  Co.  10:  640,  110  N.  W.  882, 
78  Neb.  l34. 

220.  A  parol  agreement  by  the  purchaser 
of  railroad  property  to  assume  performance 
of  a  contract  to  give  an  employee  perma- 
nent employment  is  within  the  statute  of 
frauds  and  invalid.  Cox  v.  Baltimore  & 
0.  S.  W.  R.  Co.  50:  453,  103  N.  E.  337,  180 
Ind.  495. 

221.  A  promise  by  an  owner  of  timber 
lands  who  has  contracted  to  have  the  timber 
removed  and  manufactured  into  lumber,  to 
hold  back  the  amount  which  the  contractor 
has  promised  to  pay  another  to  do  the  log- 
ging, and  pay  it  to  him,  is  not  a  promise  to 
pay  the  debt  of  another  within  the  statute 
of  frauds.  Dale  v.  Gaither  Lumber  Cc. 
28:  407,  68  S.  E.  134,  152  N.  C.  651. 
Digest  1-52  L.R.A.(N.S.) 


222.  The  duty  of  the  clerk  of  an  auction 
to  return  the  money  paid  on  a  bid  upon 
rescission  of  the  sale  for  breach  of  war- 
ranty does  not  rest  upon  an  obligation  to 
pay  the  debt  of  another,  which,  under  the 
statute  of  frauds,  must  be  evidenced  by 
writing.  McClean  v.  Stansberry,  35:  481, 
131   >i.    VV.    15,   151    Iowa,  312. 

223.  Where  the  obligee  in  a  bond  for  title 
made  a  warranty  deed  to  anotiier,  which 
provided  that  the  grantee  bound  himself  to 
see  that  the  obligations  of  his  grantor  under 
the  bond  should  be  complied  with,  and  the 
grantee  took  possession  and  rented  to  the 
grantor,  the  grantee  is  bound  by  this  pro- 
vision to  pay  tlie  purcliase  money,  and  the 
transaction  is  not  obnoxious  to  the  stat-ute 
of  frauds.  Cowart  v.  Singletary,  47:  621, 
79  S.  E.  196,  140  Ga.  435. 

224.  An  agreement  between  a  stockholder 
of  a  corporation  and  other  stockholders  and 
secured  creditors  that  the  former  will  pur- 
chase at  the  judicial  sale  the  property  by 
which  the  debts  are  secured,  and  pay  the 
debts  to  the  value  of  the  property,  is  not 
invalid  as  a  promise  to  an.swer  for  the 
debts  of  another.  Satterfield  v.  Kindley,  15: 
399,  57  S.  E.  145,  144  N.  C.  455. 

(Annotated)' 

225.  An  oral  promise  made  by  the  owner 
of  a  building  with  a  subcontractor  who  had 
abandoned  his  contract  after  partial  per- 
formance because  the  original  contractor 
failed  to  pay  him,  that,  if  he  would  finish 
the  building,  he  would  pay  him,  is  an 
original  undertaking,  and  not  within  the 
statute  of  frauds.  Howell  v.  Harvey,  22: 
1077,  64  S.  E.  249,  65  W.  Va.  310. 

226.  An  oral  agreement  by  a  mortgagee 
in  possession  of  mortgaged  property  to 
pay  a  debt  of  the  mortgagor  to  avoid  an 
attachment  of  the  property  of  which  he  is 
in  possession  may  be  found  to  be  an  origi- 
nal agreement  to  pay  the  debt,  and  there- 
fore not  to  be  within  the  statute  of  frauds, 
although  the  liability  of  the  original  debt- 
or was  not  terminated,  Frohardt  Bros.  v. 
Duflf,  40:  242,  135  N.  W.  609,  156  Iowa,  44. 

(Annotated) 

227.  A  parol  promise  of  an  assignee  of 
the  equity  of  redemption,  to  the  mortgagee, 
to  pay  the  mortgage  debt  in  consideration 
of  forbearance  of  foreclosure,  is  not  invalid 
under  the  statute  of  frauds,  as  one  to  pay 
the  debt  of  another,  since  it  is  sirpported 
by  a  sufficient  consideration  to  the  promisor. 
Manning  v.  Anthony,  32:  1179,  94  N.  Si, 
466,  208  Mass.  399. 

228.  A  promise  made  by  a  shareholder  in 
and  creditor  of  a  corporation,  to  a  judg- 
ment creditor  who  has  issued  an  execution,, 
to  indorse  bills  of  the  corporation  for  the 
amount  of  the  debt,  is  not  a  new  contract  in 
the  nature  of  an  original  obligation  to  in- 
demnify the  creditor,  but  a  promise  to  an- 
swer for  the  debt  oi  another,  which  must 
be  in  writing  in  order  to  support  an  action. 
Harburg  India  Rubber  Comb  Co.  v.  Martin, 
3  B.  R.  C.  596  [1902]  1  K.  B.  778.  Also 
Reported  in  71  L.  J.  K.  B.  N.  S.  529,  50 
Week.  Rep.  449,  86  L.  T.  N.  S.  505,  18  Timc» 
L.  R.  428. 


CONTRACTS,  I.  e,  3. 


631 


229.  The  interest  which  one  has  as  a  di- 
rector of  and  shareholder  in  a  corporation, 
which  he  has  also  largely  financed,  in  free- 
ing the  goods  of  the  corporation  from  an 
execution  which  has  been  issued,  will  not 
prevent  his  oral  promise  to  the  judgment 
creditor  to  indorse  bills  for  the  amount  of 
the  debt  from  being  ''a  promise  to  answer 
for  the  debt  of  another"  within  the  meaning 
of  the  statute  of  frauds.  Harburg  India 
Rubber  Comb  Co.  v.  Martin,  3  B.  R.  C.  596, 
[1902]  1  K.  B.  778.  Also  Reported  in  71 
L.  J.  K.  B.  N.  S.  529,  50  Week.  Rep.  449,  86 
L.  T.  N.  S.  505,  18  Times  L.  R.  428. 

(Annotated) 
Assumption   of   encumbrance  by  pur- 

cbaser. 
See  also  Mortgage,  48. 

230.  A  promise  by  the  purchaser  of  lands 
that  are  subject  to  mortgages,  to  assume 
and  pay  off  the  encumbrances  as  a  part  of 
the  consideration  or  purchase  price,  is  not 
required  to  be  in  writing,  as  it  is  not  a 
promise  to  pay  the  debt  of  another,  but  is 
a  promise  to  pay  to  a  third  party  the  debt 
that  the  grantee  owes  the  grantor;  and  the 
fact  that  in  thus  paying  his  own  debt  the 
grantee  incidentally  discharges  the  debt  of 
his  grantor  to  another  does  not  bring  the 
promise  within  the  statute  of  frauds.  Her- 
rin  V.  Abbe,  i8:  907,  46  So.  183,  55  Fla.  769. 

231.  An  agreement  by  a  purchaser  of  real 
estate  to  assume  and  pay  an  encumbrance 
thereon  as  part  of  the  consideration  is  not 
within  the  provision  of  the  statute  of 
frauds  requiring  a  promise  to  answer  for 
the  debt  of  another  to  be  in  writing.  Enos 
V.  Anderson,  15:  1087,  93  Pac.  475,  40  Colo. 
395.  (Annotated) 

232.  The  promise  to  pay  outstanding  lien 
notes  as  part  of  the  purchase  price  of  real 
estate  is  not  within  the  statute  of  frauds. 
Hill  V.  Hoeldtke  40:  672,  142  S.  W.  871, 
104  Tex.  504. 

Contracts  vritb,  or  bet^p^een,   sureties. 

Reformation  of  contract  invalid  under  stat- 
ute of  frauds,  see  Reformation  of  In- 
struments, 2. 

See  also  infra,  300. 

233.  An  undertaking  to  become  surety  for 
a  building  contractor  must  be  in  writing, 
under  the  statute  of  frauds.  Mead  v.  Wins- 
low,  23:  1 157,  102  Pac.  753,  53  Wash.  638. 

3.  Kot  to  he  performed  within  year. 

(See  also  tame  heading  in  Digest  L.R.A. 
1-70.) 

2."4.  A  verbal  contract  made  on  October 
29th  for  a  continuous  year's  service  com- 
mencing on  November  1st  following  is  void 
under  Wis.  Rev.  Stat.  1898,  §  2307,  subd. 
1,  providing  that  all  verbal  agreements  shall 
be  void  which,  by  their  terms,  are  not  to  be 
performed  within  one  year  from  the  making 
thereof.  Chase  v.  Hinkley,  2:  738,  105  N. 
W.  230,  126  Wis.  75.  (Annotated) 

235.  A  verbal  contract  made  early  in  De- 
cember in  one  year,  to  superintend  the  mak- 
ing and  gathering  of  the  next  year's  crop 
of  cotton,  is  not  within  the  statute  of  frauds. 
Digest  1-52  Ii.R.A.(N.S.) 


I  since   the   work   may  all   be   done   within  a 
'  year.     Valley  Planting  Co.  v.  Wise,  26:  403, 
123  S.   W.   768,  93   Ark.   1. 

236.  An  oral  agreement  to  cut  the  timber 
off  a  tract  of  land  as  fast  as  it  is  needed  by 
the  owner's  mill  is  void  under  the  statute 
of  frauds,  although  the  wood  might  be  all 
cut  off  within  a  year,  where  the  mill,  run- 
ning at  its  ordinary  capacity,  would  re- 
quire three  or  four  years  to  work  it  up. 
White  V.  Fitts,  15:  313,  66  Atl.  533,  102  Me. 
240.  (Annotated) 

237.  An  oral  promise  to  pay  a  certain 
amount  to  a  Young  Men's  Christian  Asso- 
ciation for  the  construction  of  a  building 
ad  soon  as  the  work  begins  is  not  void 
under  the  statute  of  frauds,  as  being  a  con- 
tract not  to  be  performed  within  a  year, 
although  the  work  does  not  actually  begin 
until  after  the  expiration  of  a  year,  since 
the  time  for  the  beginning  of  the  work  is 
contingent  and  may  liappen  within  the  year. 
Young  Men's  Christian  Asso.  v.  Estill,  48: 
783,  78  S.  E.   1075,   140  Ga.  291. 

238.  An  offer  of  extra  compensation  to 
an  employee  who  shall  render  continuous 
service  for  two  years  is  not  within  the 
statute  of  frauds.  Zwolanek  v.  Baker  Mfg. 
Co.  44:  1214,  137  N.  W,  769,  150  Wis.  517. 

239.  Shipping  a  display  cabinet  which  an 
hotel  proprietor  has  contracted  in  writing 
to  place  on  the  counter  does  not  make  the 
contract  mutual,  so  that  it  can  be  enforced 
against  him,  when  not  signed  by  the  other 
party,  where  it  was  to  run  for  six  years, 
with  a  change  of  cabinet  every  two  years, 
since  the  undertaking  of  the  shipper  is  void 
under  the  statute  of  frauds.  Adams  v.  Har- 
rington Hotel  Co.  19:  919,  117  N.  W.  551, 
154  Mich.  198. 

240.  That  a  contract  by  a  purchaser  of 
real  estate  to  assume  and  pay  an  encum- 
brance thereon  as  part  of  the  consideration 
is  not  to  be  performed  within  a  year  does  not 
render  it  void  under  the  statute  of  frauds. 
Enos  V.  Anderson,  15:  1087,  93  Pac.  475,  40 
Colo.  395. 

Contract     xv^bich     may     be     ended     by 
deatb  witbin  year. 

241.  A  verbal  contract  for  a  continuous 
year's  service  commencing  two  days  after 
the  contract  is  entered  into  is  not  taken  out 
of  the  statute  of  frauds  by  the  fact  that 
such  a  contract  would  be  terminated  by  the 
death  of  the  servant.  Chase  v.  Hinkley, 
2:  738,  105  N.  W.  230,  126  Wis.  75. 

(Annotated ) 

242.  The  death  within  a  year  of  a  per- 
son who  has  entered  into  a  parol  contract 
to  cut  the  timber  from  a  tract  of  land  need- 
ed by  the  owner's  mill,  which  will  not  use 
all  the  timber  in  less  than  three  or  four 
years,  will  not  take  the  contract  out  of  the 
statute  of  frauds.  White  v.  Fitts,  15:  313, 
66  Atl.  533,  102  Me.  240. 

243.  A  parol  contract  to  give  one  em- 
ployment as  long  as  he  lives  and  proves  a 
competent  and  worthy  man  is  not  within 
the  statute  of  frauds.  Cox  v.  Baltimore 
&  0.  S.  W.  R.  Co.  50:  453.  103  N.  E.  337, 
180   Ind.   495.  (Annotated) 


632 


CONTRACTS,  I.  e,  4. 


Lease. 

As  to  leases  generally,  see  infra,  2(58,  2G9. 
Nature  of  tenancy   created   by   parol   lease, 
see  Landlord  and  Tenant,  59. 

244.  That  the  consideration  for  a  five- 
year  lease  was  the  caring  for  u  flock  of 
goats  and  the  making  of  permanent  im- 
provements on  the  hind  to  a  certain  value 
each  year  does  not  take  it  out  of  the  rule 
that  an  oral  lease  for  more  than  one  year 
will  be  construed  as  a  tenancy  from  period 
to  period  of  the  rental  terms,  in  the  ab- 
sence of  anything  to  show  material  injury 
to  tlie  tenant  from  the  enforcement  of  such 
rule.  Watkins  v.  Balch,  3:  852,  83  I'ac.  321, 
41    Wash.  310.  (Annotated) 

245.  A  verbal  lease  of  real  estate  for  one 
year  to  commence  in  the  future  is  valid  im- 
der  a  statute  of  frauds  making  invalid: 
"First.  An  agreement  that,  by  its  terms, 
is  not  to  be  performed  within  a  year  from 
the  making  thereof.  .  .  .  Fifth.  An 
agreement  for  the  leasing  for  a  longer  period 
than  one  year  ...  of  real  property," — 
since  the  1st  subdivision  of  such  statute 
does  not  relate  to  agreements  concerning 
land.  Sullivan  v.  Bryant,  49:  819,  136  Pac. 
412,   40   Okla.   80.  (Annotated) 

24G.  A  parol  lease  for  a  year  made  in 
May,  to  begin  the  following  November,  is 
void  under  the  statute  of  frauds  as  not  to 
be  performed  within  one  vear.  Brodner  v. 
Swirsky,  42:  654,  S4  Atl.  'l04,  86  Conn.  32. 

,-  4.  Contracts  as   to   realty. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Sufficiency  of  writing  as  to,  see  infra,  I.  e,  5. 

Effect  of  fraud  or  part  performance,  see 
infra,  J.  e,  6,  b. 

Who  may  set  up  defense  of  statute  of  frauds, 
see  Action  or  Suit.  35. 

Effect  of  lack  of  objection  to  evidence  of 
contract  to  prevent  court  from  holding 
that  contract  was  within  statute  of 
frauds,  see  Appeal  and  Error,  349. 

Right  of  auctioneer  to  sign  bidder's  name, 
see  Auctions,  10. 

Parol  agreement  for  extension  of  time  for 
redemption  of  mortgage,  see  Bank- 
ruptcy,  101. 

Sufficiency  of  unenforceable  parol  promise 
as  consideration  for  note,  see  Bills 
AND  Notes,  29. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  13G. 

Equal  privileges  and  immunities,  see  Con- 
stitutional Law,  230,  237. 

Police  ])ower  as  to,  see  Constitutional 
Law,  690. 

Damages  for  breach  of,  see  Damages,  130. 

Form  and  requisites  of  deed,  see  Deeds,  I. 

Parol  contract  as  basis  of  prescriptive  right 
to  easement,  see  Easements,  15,  26. 

Right  to  recover  value  of  services  under  pa- 
rol agreement  to  convey  land  in  action  j 
for  damages  for  breach  of  contract,  sec 
Election  of  Remedies,  1.  ' 

Digest   1-52  I..R.A.(N.S.) 


Statute  as  to,  as  taking  of  property  with- 
out compensation,  see  Emi.-sknt  Do- 
main, 221. 

Necessity  of  pleading  statute  of  frauds,  see 
Pleading,  495. 

Taking  title  to  real  estate  under  verbal 
promise  to  sell  it  for  benefit  of  real 
owner,  see  Pleading,  621. 

Specific  performance  of,  see  Specific  Peb- 

KORMANCE,    I.    b. 

Parol  trusts  in,  see  Trusts,  I.  c. 

See  also  supra,  193,  194,  230,  231,  236,  240. 

247.  Permitting  the  doctrine  of  estoppel 
to  transfer  the  title  of  real  estate  from  one 
person  to  another  does  not  contravene  the 
statute  of  frauds.  Knauf  &  Tesch  Co.  v. 
Elkhart  Lake  Sand  &  Cravel  Co.  48:  744, 
141  N.  W.  701,  153  Wis.  306. 

248.  The  statute  of  frauds  does  not  apply 
to  an  oral  agreement  whereby  occupants  of 
adjoining  lands  agree  that,  until  changed  by 
mutual  consent  or  the  withdrawal  of  one  of 
the  parties,  each  shall  maintain  one  half 
of  a  division  fence.  Walker  v.  McAfee,  27: 
226,   107  Pac.  637,  82  Kan.   182. 

(Annotated) 

249.  A  contract  for  the  sale  of  an  equi- 
table estate  is  within  the  statute  of  frauds. 
Henderson  v.  Ilenrie,  34:  628,  71  S.  E.  172, 
68  W.  Va.  562. 

250.  A  verbal  agreement  between  two  bid- 
ders for  land  at  a  judicial  sale,  each  desir- 
ing a  portion  thereof,  to  tJie  effect  that  the 
successful  bidder  will  allow  the  other  to 
take  and  pay  for  the  portion  he  desires,  is, 
in  substance  and  en"ect,  a  contract  for  the 
sale  of  land,  and  unenforceable;  the  success- 
ful bidder  having  paid  for  all  of  the  land, 
and  the  unsuccessful  bidder  not  having  paid 
for  the  portion  it  was  agreed  he  should 
have,  though  prevented  from  doing  so  by 
breach  of  the  agreement  on  the  part  of  the 
other.  Henderson  v.  Henrie,  34:  628,  71  S. 
E.  172,  68  W.  Va.  562. 

251.  A  parol  promise  by  a  mortgagee  that 
if  the  mortgagor  will  not  hid  at  the  fore- 
closure, he  will  bid  in  the  property,  sell  it, 
and  account  for  the  surplus  over  and  above 
the  amount  due  and  e.xpenses,  is  separable, 
and  not  within  the  statute  of  frauds  as  to 
the  promise  to  pay  over  the  surplus,  so  that, 
in  case  a  sale  has  produced  a  surplus,  the 
mortgagor  may  recover  it.  Zwicker  v.  Gard- 
ner, 42:  1 160,  99   N.  E.   949,  213   Mass.   95. 

(Annotated) 

252.  A  promise  by  two  tenants  in  common 
upon  purchasing  their  cotenanfs  interest 
in  the  property,  to  offer  it  for  sale,  and 
either  accept  the  best  ofTer  and  pay  tlieir 
vendor  one  third  of  the  net  amount  received, 
in  consideration  of  his  transfer,  or  keep  the 
property  themselves,  accounting  to  him  on 
the  same  basis-prelates  to  consideration,  and 
does  not  establish  an  interest  or  trust  in  the 
property,  and  is  therefore  not  within  the 
statute  of  frauds,  Allen  v.  Rees,  8:  11 37, 
110  N.  W.  583,  136  Iowa,  423.     (Annotated) 

253.  An  agreement  between  mortgagor 
and  one  not  the  owner  of  the  equity  of  re- 
demption, to  extend  the  time  for  redemp- 
tion,  is  within  the   statute   of   frauds,   and 


CON'l'RACTS,  I.  e,  4. 


633 


not  enforceable  unless  in  writing  and  sup- 
ported by  sufficient  consideration.  Dow  v. 
Hiaxlbury,  44:  .1041,  85  Atl.  896.  110  Me.  249. 

254.  A  contract  by  an  attorney  for  a 
sliare  of  tlie  recovery  as  compensation  in  a 
suit  for  possession  of  real  estate  must  be 
in  writing,  uirdcr  tbe  statute  of  frauds. 
Farrin  v.^Mattliews,  41:  184,  124  Pac.  075, 
02  Or.  517.  (Annotated) 

255.  Written  authority  is  not  necessary 
to  enable  an  attorney  to  sign  a  demand  for 
dower.  McAllister  v.  Dexter  &  P.  R.  Co. 
29:  726,  76   Atl.  891,   106  Me.   371. 

256.  Authority  to  fill  in  the  name  of  a 
grantee  in  a  deed  in  a  blank  left  for  that 
purpose  need  not  be  in  writing.  Board  of 
Education  v.  Hughes,  41:  637,  136  N.  W. 
1095,  118  Minn.  404. 

Employment  of  agent  to  purchase   or 
sell   property. 

257.  The  acceptance  by  a  property  ownet 
of  the  benefit  of  services  rendered  by  one 
employed  by  a  broker  to  assist  in  disposing 
of  the  property  does  not  ratify  the  contract 
of  employment  so  as  to  render  him  liable 
to  make  compensation  for  the  services 
where  tlie  statute  provides  that  an  agree- 
ment employing  an  agent  to  sell  real  es- 
tate shall  be  void  unless  in  writing.  Soren- 
son  V.  Smith,  51:  612,  129  Pac.  757,  131  Pac. 
1022,  65  Or.  78. 

258.  A  contract  employing  one  to  pur- 
chase real  estate  is  not  required  by  the  stat- 
ute of  frauds  to  be  in  writing.  Friedman  v. 
Suttle,  9:  933,  85  Pac.  726,  10  Ariz.  57. 

(Annotated) 

259.  A  contract  whereby  one  person  em- 
ploys an  agent  to  negotiate  for  ,the  pur- 
chase of  real  estate  is  not  a  contract  for 
the  creation  of  an  estate  or  interest  in  land, 
or  trust  or  power  over  or  concerning  lands, 
within  the  meaning  of  the  statute  of 
frauds.  Johnson  v.  Hayward,  5:  112,  103  N. 
W.  1058,  74  Neb.  157. 

260.  An  agreement  by  which  one  agrees 
for  a  fixed  compensation  to  purchase  land 
for  another  at  public  sale,  and  to  advance 
the  purchase  money,  which  is  to  be  repaid 
him  immediately  upon  ascertaining  its 
amount,  is  a  contract  of  agency,  not  within 
tlie  statute  of  frauds;  and  an  action  at  law 
to  recover  damages  may  be  maintained  by 
the  principal  where  the  agent  bids  in  the 
land  in  his  own  name  and  refuses  to  convey 
it  to  the  principal.  Schmidt  v.  Beiseker, 
5:  123,  105  N.  W.  1102,  14  N.  D.  587. 

(Annotated) 
Parol   agreement   for   arbitration. 

261.  The  question  of  the  respective  rights 
of  the  parties  to  a  strip  of  land  which  one 
claims  as  a  right  of  way  over  another's 
property  involves  the  title  to  real  estate, 
so  that  it  cannot  be  submitted  to  arbitra- 
tion by  parol.  Walden  v.  McKinnon.  22: 
716,  47  So.  874,  157  Ala.  291.         (Annotated) 

262.  Testimony  by  arbitrators  tiiat  they 
did  not  consider  the  question  of  title  in 
awarding  a  right  of  way  over  real  estate 
cannot  overcome  the  actual  result  of  the 
award  as  involving  a  question  of  title  to 
real  estate.  Walden  v.  McKinnon.  22:  716, 
47  So.  874,  157  Ala.  291. 

Digest  1-52  L.R.A.(N.S.) 


Partnership. 

263.  An  oral  agreement  to  purcl-ase  and 
sell  real  estate  in  partnership,  and  divide 
the  profits,  with  the  understanding  that  each 
person  sliall  have  an  interest  in  the  prop- 
erty, is,  altliough  applying  to  a  series  of 
transactions,  invalid  under  the  statute  of 
frauds,  where  no  performance  takes  place 
except  the  payment  of  the  necessary  inci- 
dental expense,  the  one  advancing  money  for 
any  parcel  of  land  taking  the  title  thereto. 
Nester  v.  Sullivan,  9:  1106,  111  N.  W.  85, 
147  Mich.  493. 

264.  An  oral  contract  between  two  per- 
sons to  purcliase  a  single  tract  of  land  to- 
gether or  in  partnership,  which  purcha.se 
is  finally  made  by  one  of  them,  who  pays 
the  wliole  of  the  purchase  price  and  takes 
the  title  in  his  own  name,  the  other  simply 
agreeing  to  pay  him  half  thereof  on  demand, 
is  within  the  inhibition  of  the  statute  of 
frauds  (Neb.  Comp.  Stat.  1905,  ciiap.  32, 
§3),  and  is  void.  Norton  v.  Brink,  7:  945, 
110  N.  W.  669,  75  Neb.  566. 

265.  A  parol  contract  by  which  two  per- 
sons enter  into  a  partnership  to  purchase 
real  estate,  »ne  to  furnish  the  money  and 
take  the  title,  and  convey  a  half  interest  to 
the  other  upon  receiving  his  share  of  the 
purchase  price,  is  void  under  the  statute  of 
fraucis.  Scheuer  v.'Cochem,  4:  427,  105  N. 
W.  573,   126  Wis.  209.  (Annotated) 

266.  An  agreement  to  place  the  title  to 
property  owned  by  one  party,  in  a  part- 
nership to  be  formed  for  tlie  purpose  of 
developing  and  selling  it  at  a  profit,  is  one 
for  the  sale  of  lands,  and  nuist  be  in  writ- 
ing under  the  statute  of  frauds.  Burgwyn 
v.  Jones,  41:  120,  75  S.  E.  188,  113  Va.  511. 
Easements. 

267.  No  enforceable,  equitable  easement 
arises  in  favor  of  grantees  of  lots  in  a  tract, 
whose  deeds  establish  building  lines  and  re- 
strict the  use  of  tlie  property  to  residential 
purposes,  which  will  prevent  the  grantor 
from  permitting  later  purchasers  to  ignore 
the  restrictions,  although  they  purchase  on 
the  grantor's  statement  that  the  use  of  the 
other  lots  would  be  similarly  restricted,  if 
the  statute  requires  a  contract  for  the  sale 
of  any  interest  in  Ir.nds  to  be  in  writing 
signed  by  the  party  to  be  charged  there- 
with. Spraaue  v.  Kimball.  45:  962,  100  N. 
E.  622,  213' Mass.  380.  (Annotated) 
Liease. 

Effect  of  part   performance,   see   infra,   334, 

335. 
Parol  modification  of,  see  infra,  709. 
Insurability  of  interest  of  one  holding  parol 

lease  of  building  in  life  of  its  owner,  see 

Insurance,  54. 
Nature   of  tenancy   created  by   parol   lease, 

see  LAXoroRD  and  Tknant,  59. 
See  also  supra,  244-246. 

268.  No  recovery  can  be  had  for  time  lost 
and  expenses  incurred  in  an  attempt  to 
take  possession  of  a  leasehold  under  a  con- 
tract void  under  the  statute  of  frauds, 
which  the  property  owner  refused  to  carry 
out.  Boone  v.  Coe,  51:  907,  154  S.  W.  SOD, 
1.53   Kv.  233. 


634 


CONTRACTS,  I.  e,  5. 


269.  An  oral  agreement  of  a  lessor  to 
make  alterations  in  the  leased  building  to 
make  it  available  for  its  intended  use  in 
view  of  unexpected  requirements  of  public 
officials,  which  will  increase  the  value  of 
the  estate,  is  valid.  Taylor  v.  Finnigan, 
2:  973,  76  N.  E.  203,  189  Mass.  568. 

Sale  or  reserTation  of  grow^ing  crop. 

270.  Growing  crops  are  personal  prop- 
erty, which  pass  by  deed  as  appurtenant  to 
the  realty,  but  they  may  be  severed  there- 
from by  reservation  evidenced  by  parol. 
Cooper  V.  Kennedy,  31:  761,  124  N.  W.  1131, 
86  Neb.   119. 

271.  A  parol  reservation  of  a  growing  crop 
by  agreement  between  the  landlord  and  ten- 
ants at  sufferance  prior  to  dispossession  by 
the  landlord  is  valid  as  against  either  the 
landlord  or  a  subsequent  tenant.  Bristow 
v.  Carriger,  25:  451,  103  Pac.  596,  24  Okla. 
324. 

272.  A  parol  agreement  by  which  the 
grantors  of  land  reserve  a  matured,  un- 
severed  crop  of  corn  and  hay  standing 
thereon,  as  a  part  of  the  consideration  for 
the  conveyance,  is  valid.  Grabow  v.  Mc- 
Cracken,  23:  1218,  102  Pac.  84,  23  Okla. 
612.  (Annotated) 
To  convey  or  recon^ey. 

Right  to  specific  performance,  see  Specific 
Performance,  13. 

273.  An  oral  agreement  by  one  who 
negotiates  a  sale  of  real  estate,  to  p:  . 
back  at  the  purchaser's  option  the  money 
advanced  and  assume  the  coi- tract,  is  void 
under  the  statute  of  frauds.  Esslinger  v. 
Pascoe,  3:  147,  105  N.  W.  362,  129  Iowa,  86. 

( Annotated ) 

274.  A  written  contract  or  memorandum 
of  sale  is  necessary  to  enforce  against  one 
tenant  in  common  a  contract  for  sale  of 
real  estate  negotiated  by  his  cotenant,  al- 
though he  authorizes  the  latter  in  writing 
to  make  the  sale.  Hartenbower  v.  Uden, 
s8:  738,    90   N.   E.    298,    242    111.    434. 

( Annotated ) 
Escrow  agreement. 

275.  Delivery  of  a  deed  placed  in  escrow 
may  be  enforced,  although  the  escrow  agree- 
ment was  not  in  writing,  since  the  statute 
of  frauds  does  not  apply  to  such  agreement. 
Manning  v.  Foster,  18:  337,  96  Pac.  233,  49 
Wash.  541.  (Annotated) 
Assignment  of  land  contract. 

See  also   infra,  293. 

276.  An  assignment  of  a  land  contract 
must  be  evidenced  by  writing  where  a  writ- 
ing is  necessary  to  transfer  an  interest  in 
real  estate.  Flinner  v.  McVay,  19:  879,  96 
Pac.  340.  37  Mont.  306.  (Annotated) 

277.  Delivery  of  a  power  of  attorney  and 
the  land  contract  to  which  it  related,  by 
the  one  upon  whom  it  is  conferred,  to  the 
intended  assignee  of  the  contract  without 
executing  it,  is  not  sufficient  to  transfer  the 
contract.  Flinnor  v.  McVay,  19:  879,  96  Pac. 
840,  37  Mont.   306. 

Digest  1-52  L.R.A.(N.S.) 


S.  Sufficiency  of  writing. 

a.  In  general. 

(See   also    same   heading   in   Digest   L.R.A. 
1-10.) 

Contract  conferring  agency  for  sale  of  home- 
stead, see  Homestead,  9. 

278.  A  written  agreement  for  the  sale  of 
lands,  from  which  it  appears  that  one  of 
the  parties  incurs  no  individual  liability, 
but  acts  merely  as  the  agent  of  someone  else, 
cannot,  under  the  statute  of  frauds,  be  spe- 
cifically enforced  r.t  the  suit  of  the  princi- 
pal, if  his  relation  to  the  transaction  can 
only  be  proved  bv  parol  evidence.  Mertz  v. 
Hubbard,  8:  733, '88  Pac.  529,  75  Kan.  1. 

(Annotated) 

279.  Where,  subsequent  to  an  oral  con- 
tract for  the  sale  of  land,  the  vendor 
makes,  executes,  and  delivers  in  escrow 
a  deed  for  the  lands,  reciting  the  consider- 
ation and  containing  the  terms  and  con- 
ditions of  the  sale,  and  in  an  action  on 
such  contract  substantially  admits  the  con- 
tract as  alleged  but  relies  on  the  statute 
of  frauds  as  a  defense,  the  deed  in  escrow 
is  a  sufficient  compliance  with  the  statute 
of  frauds  notwithstanding  it  was  never  de- 
livered to  the  vendee  and  was  withdrawn 
from  the  custodian  before  suit  was  brought. 
Moore,  Keppel  &  Co.  v.  Ward,  43:  390, 
76  S.  E.  807,  71  W.  Va.  393.     (Annotated) 

280.  A  writing  sufficient  to  satisfy  the 
statute  of  frauds  as  a  contract  for  sale  of 
real  estate  is  contained  in  an  instrument, 
in  the  form  of  a  receipt,  acknowledging 
payment  from  the  purchaser  of  a  certain 
sum  as  part  of  a  stated  purchase  price  for 
the  designated  property,  and  signed  by  the 
vendor.  Ullsperger  v.  Meyer,  2:  221,  75  N. 
E.  482,  217  111.  262. 

281.  Failure  to  mention  the  time  for  pay- 
ing the  balance  of  the  purchase  money  in  a 
receipt  for  a  part  payment  towards  the  pur- 
chase price  of  real  estate  renders  the  re- 
ceipt insufficient  as  a  contract  under  the 
statute  of  frauds.  Ebert  v.  Cullen,  33:  84, 
130   N.    W.    185,    165   Mich.    75. 

( Annotated ) 

282.  A  written  notification  by  a  merchant 
that  he  has  received  a  "contract  order" 
of  a  customer,  but  cannot  fill  it,  is  not  such 
a  recognition  of  the  contract  as  to  take  it 
out  of  the  statute  of  frauds.  Lee  t. 
Vaughan  Seed  Store,  37:  352,  141  S.  W. 
496,   101   Ark.  68. 

283.  Where  an  appeal  bond  is  valid  as  a 
common-law  obligation  by  virtue  of  an 
agreement  between  the  parties  that  the 
entering  of  judgment  is  to  be  stayed  after 
the  right  to  have  the  same  entered  has  ac- 
crued, the  bond  is  not  void  under  the  stat- 
ute of  frauds  for  failure  to  state  the  con- 
sideration, namely  the  alleged  agreement, 
in  full.  First  Nat.  Bank  v.  C.  E.  Stevens 
I^nd  Co.  43:1040,  137  N.  W.  1101,  119  Minn. 
209. 


CONTRACTS,  I.  e,  5. 


635 


Several    papers. 

2S4.  Letters  passing  between  an  alleged 
vendor  and  vendee  cannot  be  read  together 
to  constitute  a  contract  for  the  sale  of  real 
estate,  if  they  do  not  identify  the  land 
which  is  intended  to  be  tlie  subject-matter 
of  the  contract,  as  to  which  there  is  a  dis- 
pute, so  that  parol  evidence  would  be  re- 
quired to  substantiate  the  truth  of  the  mat- 
ter. Jackson  v.  Stearns,  37:  639,  113  Pac. 
30,  58  Or.  57. 
Description,  of  land. 

Statute  of  frauds  as  defense  to  action  for 
specific  performance,  see  Specific  Peb- 

FOBMANCE,   87. 

285.  A  deed  of  real  estate,  delivered  at 
the  time  of  the  execution  of  the  contract  to 
convey  it,  which  does  not  refer  to  it,  can- 
not aid  a  defective  description  in  the  con- 
tract so  as  to  satisfy  the  statute  of  frauds. 
Cunha  v.  Gallery,  i8:  6i6,  69  Atl.  1001,  29 
R.   1.  230.  (Annotated) 

286.  A  description  of  a  farm  as  my 
"Muddy  Creek  farm,"  containing  a  certain 
number  of  acres,  is  suflicient  when  contained 
in  a  written  agreement  to  sell  the  same, 
to  satisfy  the  statute  of  frauds,  if  it  is 
shown  by  parol  that  the  vendor  owned  but 
one  farm  on  that  creek  containing  the  spe- 
cified number  of  acres.  Bates  v.  Harris, 
36:  154,  138  S.  W.  276,  144  Ivy.  399. 

( Annotated ) 

287.  An  agreement  to  convoy  in  considera- 
tion of  marriage,  a  tract  of  land  of  a 
certain  value,  is  void  under  the  statute  of 
frauds,  wliere  the  promisor  has  four  tracts 
of  that  value,  and  the  writing  contains 
nothing  to  identify  the  one  referred  to,  ex- 
cept that  it  was  to  be  chosen  by  the  prom- 
isee, although  the  marriage  is  consummated 
on  tlie  faith  of  tlie  promise.  Cole  v.  Cole, 
34:  147,  54  So.  953,  99  Miss.  335. 

(Annotated) 

b.  Execution. 

(See   also    same   heading   in  Digest   L.R.A. 

1-10.) 

Signature. 

See  also  infra,  302,  303 ;  Sale,  45. 

288.  An  order  for  goods  which  is  sought 
and  procured  by  the  seller,  if  signed  by  the 
buyer,  becomes  a  binding  contract  on  him, 
within  the  statute  of  frauds.  Cameron 
Coal  &  M.  Co.  v.  Block,  31:618,  110  Pac. 
720,   26   Okla.   615. 

289.  The  party  to  be  charged,  who  must 
sign  a  contract  to  make  it  binding  under 
the  statute  of  frauds,  is  the  one  against 
whom  it  is  sought  to  be  enforced.  Lee  v. 
Vaughan  Seed  Store,  37:  352,  141  S.  W. 
496,   101  Ark.  68. 

290.  The  printing  of  the  name  of  the 
vendor  at  the  beginning,  in  the  body,  and 
on  the  back  of  the  merchant's  order  blanks, 
to  be  filled  up  by  a  soliciting  agent,  is  not 
a  suflicient  signature  to  satisfy  the  statute 
of  frauds.  Lee  v.  Vaughan  Seed  Store,  37: 
352,   141  S.  W.  496,  101  Ark.  68. 

291.  Under  a  statute  providing  that  no 
action  shall  be  brought  to  charge  any  person 
Digest  1-52  L.IIJ\..(N.S.) 


upon  any  contract  for  the  sale  of  real  estate 
unless  the  promise  be  in  writing  and  signed 
by  the  person  to  be  charged,  a  vendor  who 
has  not  signed  a  contract  cannot  maintain 
an  action  to  charge  the  vendee  thereon,  al- 
though the  latter  haa  expressed  his  assent 
in  writing  sufficiently  to  satisfy  the  statute. 
Murray  v.  Crawford,  28:  680,  127  S.  W,  494, 
138  Ky.   25.  (Annotated) 

292.  Under  a  statute  providing  that  an 
agreement  for  the  sale  of  goods  or  chattels 
at  not  less  than  a  stated  price  is  invalid 
unless  some  note  or  memorandum  thereof 
be  in  writing  and  subscribed  by  the  party 
charged,  or  by  his  agent,  an  executory 
contract  of  sale  of  grain  within  the  pro- 
visions of  the  above  statute,  consisting  of 
mutual  agreements  on  the  part  of  both  par- 
ties and  signed  only  by  the  seller,  is  not 
sufficient  to  take  the  case  out  of  the  stat- 
ute of  frauds.  Houser  v.  Hobart,  43:  410, 
127  Pac.  997,  22  Idaho,  735.       (Annotated) 

293.  Mere  parol  acceptance  by  the  as- 
signee of  a  written  assignment  of  a  contract 
to  sell  real  estate  is  sufficient  to  warrant 
the  enforcement  of  the  contract  against 
him  in  favor  of  tlie  assignor,  since  it  is 
suflicient  to  satisfy  the  statute  of  frauds 
if  the  contract  to  sell  tlie  assignor's  interest 
in  the  property  is  signed  by  him.  Evans 
V.  Stratton,  34:  393,  134  S.  VV.  1154,  142 
Ky.  615. 

294.  A  trustee  maj»  execute  a  declaration 
of  trust  which  will  take  the  transaction  out 
of  the  statute  of  frauds.  Holmes  v.  Holmes, 
38:  645,  118  Pac.  733,  65  Wash.  572. 

(Annotated) 

295.  A  promise  signed  by  the  promoter 
of  a  corporation  to  pay  for  stock  taken  by  a 
subscriber  upon  its  surrender  within  a  cer- 
tain time  is  not  invalid  under  the  statute 
of  frauds  because  not  signed  by  the  sub- 
scriber. Re  NefT,  28:  349,  157  Fed,  57,  84  C. 
C.  A.  561, 

c.  Memorandum. 

(See   also    same   heading   in   Digest   L.R.A. 
1-70.) 

296.  A  resolution  of  the  board  of  direct- 
ors of  a  corporation,  signed  by  the  president 
and  secretary,  to  sell  real  estate,  which  is 
sufficiently  definite  in  the  description  of 
property  and  terms,  is  a  sufficient  memo- 
randum to  satisfy  the  statute  of  frauds. 
Western  Timber  Co.  v.  Kalama  River  Lum- 
ber Co.  6:  397,  85  Pac.  338,  42  Wash.  620. 

297.  Neither  a  draft  of  a  deed  nor  a  writ- 
ten notice  to  execute  the  same  is  sufficient 
to  satisfy  the  requirements  of  the  statute  of 
frauds  as  to  a  memorandum  of  the  sale  of 
real  estate,  where  they  do  not  contain  the 
terms  of  sale.  Hartenbower  v.  Uden,  28: 
738,  90  N.  E.  298,  242  111.  434. 

298.  A  written  memorandum,  "I  have 
sold  this  place"  to  another  for  a  certain 
amount,  is  not  sufficient  to  satisfy  the  stat- 
ute of  frauds.  Cunha  v.  Callerv,  18:  616, 
69  Atl.  1001,  29  R.  I.  230. 

299.  A  memorandum  made  by  the  auction- 
eer  on   the   back   of   tlie   notice   of   sale   of 


636 


CONTRACTS,  I.  e,  G. 


certain  described  real  estate,  that  it  was 
sold  to  a  certain  person  at  a  certain  price, 
is  sufficient  to  satisfy  the  statute  of  frauds. 
Love  V.  Harris,  36:  927,  72  S.  E.  150,  156 
N.  C.  88. 

300.  The  mere  indorsement  of  one's  name 
upon  a  building  contract,  under  the  word 
surety,  is  not  a  sufficient  noti'  or  memo- 
randum in  writing  of  the  obligation  of  the 
one  so  signing  to  satisfj'  the  statute  of 
frauds  and  charge  him  as  surety  on  the 
contract.  Mead  v.  Winslow,  23:  1197,  102 
Pac.  In.i,  53  Wash.  638.  (Annotated) 

301.  Letters  addressed  to  a  third  person 
stating  and  affirming  a  contract,  may  be  used 
against  tiie  writer  as  a  memorandum  to  sat- 
isfy the  statute  of  frauds.  Nicliolson  v. 
Dover,  13:  167,  58  S.  E.  444,  145  N.  C.  18. 
Signature. 

Specific  performance  of  contract  signed  by 
only  one  party,  see  Spkcific  Pkrfokm- 
A^-CE,  16-18. 

See  also  supra,  145,  288-295;  infra,  321. 

302.  The  entry  in  the  seller's  account 
book  is  not  a  memorandum  signed  by  the 
party  to  be  charged,  within  the  meaning  of 
a  statute  making  contracts  for  the  sale  of 
goods  void  in  the  absence  of  certain  cir- 
cumstances, including  a  memorandum  in 
writing  signed  by  the  party  to  be  charged. 
United  Hardware-Furniture  Co.  v.  Blue,  35: 
1038,  52  So.  364,  59  Fla.  419. 

'  303.  A  memorandum  of  sale  by  an  auc- 
tioneer binds  the  bidder,  although  his  name 
is  not  signed  to  it,  if  it  appears  in  the  Oody 
of  the  instrument.  Love  v.  Harris,  36:  927, 
72  S.  E.  150,  156  N.  C.  88. 

6.  Effect  of  fraud  or  part  performance. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  of  recovery  on  part  performance,  see 

infra,  IV.  c,  1. 
See  also  supra,  193,  207. 

304.  The  right  to  the  benefits  of  a  parol 
antenuptial  contract  which  has  been  fully 
executed  by  both  parties  caimot  be  defeat- 
ed because  of  the  statute  of  frauds.  Su- 
preme Lodge  K.  of  I',  v.  Ferrell,  33:  777, 
112  Pac.  155.  83  Kan.  491. 

305.  An  action  at  law  for  damages  for  a 
failure  to  deliver  corporate  stock  in  accord- 
ance with  a  parol  agreement  to  do  so  in 
consideration  of  services  to  be  rendered, 
which,  as  to  such  part,  is  void  under  the 
statute  of  frauds,  cannot  be  maintained  be- 
cause the  services  have  been  rendered  and 
a  money  compensation  paid  therefor  in  ac- 
cordance with  another  part  of  the  agree- 
ment whicli  is  not  necessarily  within  the 
statute,  since  mere  payment  of  the  con- 
sideration will  not  take  the  case  out  of  the 
statute,  and  full  performance  of  the  pro- 
vision of  the  contract  not  within  the  statute 
cannot  be  regarded  as  such  performance  as 
will  take  the  void  part  out  of  it.  Franklin 
Digest   1-52  L.R.A.(N.S.) 


V.    Matoa   Gold   .Alin.   Co.    16:  381,    158   Fed. 
941,  86  C.  C.  A.  145. 

300.  A  contract  binding  under  the  .stat- 
ute of  frauds  is  effected  by  the  receipt  by 
an  auctioneer  of  a  percentage  of  the  bid  for 
property  offered  by  him  for  sale,  and  the 
delivery  by  him  to  the  bidder  of  a  bill  of 
sale. of  the  property,  which  acknowledges 
receipt  of  the  money  paid.  Meyer  v.  Red- 
mond, 41:  675,  9.S  X.  E.  906,  205  N.  Y.  47S. 

307.  The  resii^iiation  of  his  former  posi- 
tion by  one  who  liad  entered  into  an  oral 
contract  with  a  (Corporation  whereby  it  was 
to  sell  him  some  of  its  stock,  and  to  employ 
him  as  its  bookkeeper,  does  not  constitute 
giving  "something  in  earnest  to  bind  the 
bargain,  or  in  part  payment,"  so  as  to  take 
the  contract  out  of  the  statute  of  frauds. 
ITewson  v.  Peterman  Mfg.  Co.  51:  398,  136 
Pac.  1158,  76  Wash.  600. 

308.  After  he  has  secured  the  property,  one 
who  has  promised  to  bid  in  the  property  of 
a  corporation  at  a  judicial  sale  and  pay  tlie 
debts  secured  by  it  cannot  rely  on  the  stat- 
ute of  frauds  to  avoid  compliance  there- 
with. Satteriield  v.  Kindlev,  15:  399,  57 
S.  E.  145,  144  N.  C.  455. 

Sales  of  chattels. 

309.  A  delivery  and  acceptance  of  any 
part  of  the  goods  or  chattels  wlijch  are  the 
subject  of  an  oral  agreement,  and  within 
the  statute  of  frauds,  at  any  subsequent 
time,  takes  the  contract  out  of  the  statute 
of  frauds,  and  makes  valid  the  entire  con- 
tract. Gabriel  v.  Kildare  Elevator  Co.  10: 
638,  90  Pac.  10,  18  Okla.  318.     (Annotated) 

310.  An  offer  by  a  purchaser  of  a  quan- 
tity of  hay  to  be  separated  from  a  larger 
mass  in  a  barn,  to  sell  to  another  a  quan- 
tity which  had  been  separated  from  the 
common  mass  by  the  seller,  and  placed  out- 
side the  barn,  althoiigh  it  is  rejected,  is  a 
sufficient  acceptance  of  that  particular  lot 
to  satisfy  the  statute  of  frauds.  Beedy  v, 
Bravman  Wooden  Ware  Co.  36:  76,  79  Atl. 
721,'  108  Me,  200.  (Annotated) 

311.  The  baling  of  the  hay  by  the  pur- 
chaser is  a  sufficient  part  payment  of  the 
price  to  take  a  contract  to  pay  a  certain 
price  per  ton  for  hay,  the  pinchaser  to  do 
the  baling,  out  of  the  statute  of  frauds. 
Driggs  v.  Bush,  15:  654,  115  N.  W.  985.  152 
Mich.  53.  (Annotated) 

312.  That  personal  property  is  in  posses- 
sion of  an  intending  purchaser  at  the  time 
he  makes  a  verbal  ofler  for  it  which  is  duly 
accepted  is  not  sufficient  to  comply  with  a 
statute  providing  that  no  contract  for  the 
sale  of  goods  of  the  value  of  $50  or  more 
shall  be  valid  imless  the  purchaser  shall 
accept  and  receive  part  of  the  goods  sold. 
Godkin  v.  Weber.  20:498,  117  N.  W.  628, 
154  Mich.  207. 

313.  A  binding  contract  to  purchase  mill 
culls  is  not  effected  by  the  fact  that  one 
making  a  verbal  offer  for  them  accepted  and 
paid  for  merchantable  lumber  which  wa* 
cut  from  them,  claiming  that  this  timber 
was  not  part  of  the  culls.  Godkin  v.  Web- 
er. 20:  498,  117  N.  W.  628,  154  Mich.  207. 

314.  Delivery  of  goods  to  a  common  car- 
rier pursuant  to  sn  oral  agreement  for  the 

.  a 


CONTRACTS,  I.  e,  6. 


637 


purchase  thereof,  without  instruction  to  do  | 
anything  but  carry  and  deliver  them  to  the 
buyer,  is  not  a  delivery  to  the  consignee  | 
within  the  meaning  of  a  statute  requiring 
the  buyer,  in  order  to  render  such  a  con- 
tract valid  where  there  is  no  pajment  or 
part  payment,  to  both  actually  receive  and 
accept  the  goods,  since  under  such  statute 
some  act  or  conduct  on  the  part  of  the  buyer 
or  his  authorized  agent  maintaining  an 
intention  to  accept  the  goods  as  a  per- 
formance of  the  contract,  and  to  appro- 
priate them,  is  required.  United  Hardware- 
Furniture  Co.  V.  Blue,  35:  1038,  52  So.  364, 
5!)  Fla.  419.  (Annotated) 

315.  A  verbal  agreement  consisting  of  an 
offer  to  sell  lumber  on  specified  tcrni^.  and 
its  acceptance,  does  not,  in  the  absence  of 
some  affirmative  act  on  the  part  of  the  pur- 
chaser manifesting  an  intention  to  accept 
the  property  under  the  sale  agreement,  work 
a  change  of  possession  so  as  to  satisfy  the 
statute  of  frauds,  although  the  lumber  is  in 
the  possession  of  the  purchaser  as  bailee,  or 
to  some  extent  by  reason  of  its  being  on 
his  premises  by  his  permission.  J.  H.  Silk- 
man  Lumber  Co.  v.  Hunholz,  11:  1186,  112 
N.  W.  1081,  132  Wis.  610.  (Annotated) 

316.  A  contract  for  sale  of  unissued 
stock  in  a  corporation  and  an  interest  in 
an  automobile  is  taken  out  of  the  statute 
of  frauds  l)y  entering  into  possession  of 
the  business  with  the  other  owners,  carry- 
ing it  on  as  contemplated  by  the  contract, 
and  taking  and  using  the  automobile  as 
one  of  the  owners.  Ford  v.  Howgate, 
29:  734,  76  Atl.  939,  106  Me.  517. 
Marriag;e. 

317.  Marriage,  followed  by  support  and 
maintenance  by  the  husband  of  the  wife,  is 
not  such  a  performance  of  an  oral  antenup- 
tial agreement  as  will  take  the  agreement 
out  of  the  statute  of  frauds.  Rowell  v. 
Barber,  27:  1140,  125  N.  W.  937,  142  Wis. 
304. 

b.  Contracts  relating  to  real  property. 

{See   also   same   heading   in   Digest   L.R.A. 

1-10.)  /i^..K     - 

Specific   performance   of   contract,   see   Spe^ 
ciFic  Performance,  I.  b. 

318.  A  "part  performance,"  to  take  an 
oral  agreement  to  convey  real  estate  out  of 
the  statute  of  frauds,  must  be  substantial, 
and  of  such  a  nature  that  the  refusal  to 
enforce  the  agreement  would  result  not 
merely  in  the  denial  of  the  right  which  the 
agreement  was  intended  to  confer,  but  in 
an  "unjust  and  unconscientious  injury." 
Re  Bennett.  37:  521,  132  N.  W.  309,  115 
Minn.  342. 

319.  That  one  to  whom  another  promises 
orally,  upon  receiving  title  to  real  estate, 
to  convey  it  upon  pa.yment  of  a  specified 
sum  of  money,  acted  for  the  promisor  in 
DCgotiating  the  purchase,  and  had  a  possi- 
ble broker's  opportunity  to  find  another 
pui-chaser  for  the  land,  does  not  show  such 
a  change  in  situation  as  to  constitute  part 
Digest   1-52  L.R.A.(N,S.) 


perfoimance  sufficient  to  take  the  promise 
out  of  the  statute  of  frauds.  Re  Bennett, 
37:  521,   132   N.    W.   309,   115   Minn.   342. 

320.  The  fact  that,  by  direction  of  the 
purchaser,  the  deed  was  made  to  a  stranger, 
does  not  change  the  rule  that  a  parol  con- 
tract to  purchase  real  estate  may  be  en- 
forced if  the  deed  has  been  executed  and 
delivered.  Maker  v.  Schisler,  51:77,  136 
Pac.  14,  67  Or.  356.  (Annotated) 

•321.  Under  a  statute  making  invalid  con- 
tracts within  the  statute  of  frauds  unless 
a  memorandum  thereof  be  in  writing,  and 
subscribed  by  the  party  to  be  charged,  an 
action  for  specific  performance  cannot  be 
maintained  against  a  vendee  who  did  not 
sign  the  agreement,  although  he  paid  a 
small  portion  of  the  purchase  money,  and 
accepted  a  receipt  therefor.  Harper  v. 
Goldschmidt,  28:  689,  104  Pac.  451,  156  Cal. 
245.  (Annotated) 

322.  The  erection  by  grantees  of  lots  in 
a  tract  of  land,  of  buildings  according  to 
restrictions  as  to  building  lines  and  resi- 
dences placed  in  their  deeds,  which  they 
were  assured  would  apply  to  the  whole 
tract,  is  not  such  part  performance  as  to 
take  the  promise  as  to  the  remaining  lots 
out  of  the  statute  of  frauds.  Sprague  v. 
Kimball,  45:  962,  100  N.  E.  622,  213  Mass. 
380. 

323.  The  provisions  of  the  statute  of 
frauds,  or  of  uses  and  trusts,  have  no  ap- 
plication where  an  agreement  to  take  title 
to  real  property  and  sell  it  as  an/ agent  of 
the  real  owner,  to  whom  the  proceeds  are  to 
be  turned  over,  has  been  completely  per- 
formed as  to  the  part  thereof  which  comes 
within  tlie  statute,  and  the  part  remaining 
to  be  performed  is  merely  a  payment  of  the 
money,  the  promise  to  do  which  is  not  re- 
quired to  be  in  writing.  ,  Logan  v.  Brown, 
20:  298,  95  Pac.  441,  20  Okla.  334. 

324.  Absence  of  writing  will  not  defeat, 
under  the  statute  of  frauds,  an  agreement 
between  mortgagor,  the  purchaser  of  the 
mortgage,  and  a  trustee,  to  hold  it  and  col- 
lect the  rents  and  payments  of  principal 
and  make  application  thereof,  after  the 
agreement  has  been  performed.  McLeod  v. 
Despain,    19:  276,   90   Pac.   492.   49   Or.    536. 

325.  A  contract  between  husband  and  wife 
that  the  survivor  shall  take  the  property 
of  the  other  is  taken  out  of  the  statute  of 
frauds  bj'  the  execution  of  reciprocal  wills. 
Brown  v.  Webster,  37:  1196,  134  N.  W.  185, 
90  Neb.  591. 

326.  A  parol  assignment  of  a  lease  for 
the  period  of  three  years  is  void  under  the 
statute  of  frauds ;  but  where  the  assignee 
has  taken  possession  of  the  demised  prem- 
ises, and  paid  the  purchase  price  for  the 
lease,  and  performed  the  covenants  thereof 
by  paying  for  a  time  the  monthly  rentals  to 
the  lessor  as  provided  in  the  lease  contract, 
the  transaction  is  relieved  from  the  opera- 
tion of  the  statute,  and  the  assignee  is  lia- 
ble to  the  lessor  for  the  full  term  of  the 
lease,  although  he  has  abandoned  the  prem- 
ises. Tyler  Commercial  College  v.  Staple- 
ton,  42:  162,  125  Pac.  443,  33  OTcla.  305. 

(Annotated ) 


03^ 


CONTRACTS,  I.  f— II.  a. 


Performing  services. 

327.  Performing  services  in  consequence 
of  an  oral  promise  to  devise  real  estate  will 
not  take  the  promise  out  of  the  statute  of 
frauds.  Goodloe  v.  Goodloe,  6:  703,  92  S. 
W.  767,  116  Tenn.  252. 

328.  The  performance  by  an  attorney  of 
the  services  which  result  in  a  recovery  of 
real  estate  is  not  such  performance  of  an 
^.greement  for  a  share  of  the  recovery  as 
compensation  as  to  take  the  case  out  of 
the  statute  of  frauds.  Farrin  v.  Mattliews, 
41:  184,  124  Pac.  675,  62  Or.  517. 
Possession  and  improvement. 

Effect  on  right  to  specific  performance,  see 
Specific  Performance,  48,  50-5:^ 
320.  Without  a  valuable  consideration  for 
the  conveyance,  taking  possession  of  real 
estate  alone  is  not  sufficient  to  take  a  parol 
gift  of  real  estate  out  of  the  statute  of 
frauds.  Price  v.  Lloyd,  8:  870,  86  Pac.  767, 
31   Utah,  86. 

330.  Parol  gifts  of  land  may  be  upheld  in 
equity,  if  not  at  law,  where  the  donee  goes 
into  possession  and  makes  permanent  im- 
provements. Bevington  v.  Bevington,  9:508, 
110  N.  W.  840.  133  Iowa,  351. 

331.  Possession  taken  by  a  vendee  imder 
a  parol  contract  for  the  conveyance  of  real 
estate,  not  taken  in  pursuance  of  the  con- 
tract, or  with  the  knowledge  and  consent 
of  the  vendor,  is  insufficient  to  relieve  the 
contract  of  the  operation  of  the  statute  of 
frauds,  and  to  entitle  the  vendee  to  specific 
performance.  Collins  v.  Lackev,  40:  883, 
123  Pac.  1118,  31  Okla.  776. 

332.  Possession  alone  of  land  under  a 
verbal  contract,  when  delivered  by  the  ven- 
dor to  the  vendee,  is  an  act  of  part  perform- 
ance which  will  take  the  case  out  of  the 
statute  of  frauds.  Spragu  v.  Jessup, 
4:  410,  83  Pac.  145,  48  Or.  211. 

333.  No  taking  of  possession  sufficient  to 
satisfy  the  statute  of  frauds  occurs  where 
one  in  possession  of  a  mining  claim  under  a 
prospecting  contract  with  one  part  owner 
purchases  the  share  of  the  other  owner, 
and  merely  continues  his  possession  and 
operations  without  anything  to  connect  him 
with  the  later  contract.  Roberts  v.  Temple- 
ton,  3:  790,  80  Pac.  481,  48  Or.  65. 

(Annotated) 

334.  Entry  under  a  parol  lease  void  under 
the  statute  of  frauds  confers  no  rights  un- 
der the  lease.  Brodner  v.  Swirsky,  42:  654, 
84  Atl.  104.  86  Conn.  32.  (Annotated) 

335.  In  the  absence  of  any  equitable  con- 
sideration, possession  by  a  tenant  for  the 
first  year  under  a  parol  lease  of  real  es- 
tate for  three  years,  is  not  such  a  part 
performance  as  will  avoid  the  provisions 
of  the  statute  of  frauds.  Osgood  v.  Shea, 
42:  648,  126  N.  W.   310,  86  Neb.  729. 

f.  Incorporating  extrinsic  document. 

Reading  statute  into  insurance  policy,  see 
Insurance,  167. 

Law  authorizing  regulation  of  public  serv- 
ice as  part  of  contracts  therefor,  see 
Public  Service  Cokporations,  7. 

See  also  Sale,  2, 

Digest   1-52  I..R.A.(N.S.) 


336.  A  request  by  a  shipper  to  a  carrier 
for  carriage  of  property,  which  contains  a 
statement  of  valuation  of  the  property,  and 
is  referred  to  by  the  shipping  contract, 
which  limits  the  liability  of  the  carrier  to 
the  values  stated  in  the  request,  becomes 
a  part  of  the  contract.  Donlon  v.  Southern 
P.  Co.  11:  811,  91  Pac.  603,  151  Cal.  763. 

g.  Merger. 

337.  All  prior  and  contemporaneous  oral 
negotiations  are  merged  into  a  written  con- 
tract finally  entered  into,  and  which  fully 
covers  the  subject-matter  of  such  negotia- 
tions. J.  W.  Ripy  &  Son  v.  Art  Wall  Paper 
Mills,  51:  33,  136  Pac.  1080,  41  Oka.  20. 

338.  As  a  general  rule  all  preceding 
negotiations  relating  to  a  lease  of  land  are 
merged  in  the  written  lease  and,  in  the  ab- 
sence of  fraud  or  mistake,  the  writing  is  the 
controlling  evidence  of  the  terms  and  con- 
ditions upon  which  the  property  was  de- 
mised. Salinger  v.  North  American  Woolen 
Mills,  39:  350,  73  S.  E.  312,  70  W.  Va.  151. 

II.  Construction. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Construction  of  public  contract,  see  infra,. 
VII. 

Of  title  guaranty  company,  see  Abstracts, 
6. 

Of  bonds,  see  Bonds. 

Carriers'  contracts  generally,  see  Carriers. 

Parol  evidence  as  to,  see  Evidence,  958. 

Evidence  as  to  condition  on  which  livery 
rig  was  engaged,  see  Evidence,  1941. 

Parol  evidence  as  to  meaning  of  parties  to 
contract,  see  Evidence,  VI.  e. 

Widow's  right  to  year's  support  under  ante^ 
nuptial  agreement,  see  Husband  and 
Wife,  134. 

Of  insurance  contract,  see  Insurance,  III. 
d. 

Of  lease,  see  Landlord  and  Tenant,  II. 

Of  oil  and  gas  lease,  see  Mines,  II.  b,  4. 

Meaning  of  words  in  regulations  of  rail- 
road relief  association,  see  Railroad- 
Relief  Associations,  1. 

As  question  for  jury,  see  Trial,  II.  e,  0. 

Of  wills,  see  Wills,  III. 

Of  release  as  a  whole,  see  Release,  5,  6. 

See  also  infra,  553. 

339.  It  is  only  where  the  language  of  a. 
contract  is  ambiguous  and  uncertain  and 
susceptible  of  more  than  one  construction 
that  a  court  may,  under  the  well-estab- 
lished rules  of  construction,  interfere  to- 
reach  a  proper  construction,  and  make  cer- 
tain that  which  in  itself  is  uncertain.  Grif- 
fin V.  Fairmont  Coal  Co.  2:  1115,  53  S.  E. 
24,  59  W.  Va.  480. 

340.  It  is  the  duty  of  the  court  to  con- 
strue contracts  us  they  are  made  by  the  par- 
ties thereto,  and  to  give  full  force  and  effect: 
to  the  language  used,  when  it  is  clear,  plain,. 


CONTRACTS,  II.  b. 


6S9 


siiiple,  and  unambiguous.  Griffin  v.  Fair- 
mont Coal  Co.  2:  1 1 15,  53  S.  E.  24,  59  W. 
Va.  480. 

341.  The  court,  in  construing  the  terms 
of  a  contract  and  the  law  applicable  there- 
to, will  take  into  consideration  the  condi- 
tions and  circumstances  under  which  the 
parties  were  corftracting,  and  construe  their 
contract  in  the  light  thereof.  Schurger  v. 
Moorman,  36:  313,  117  Pac.  122,  20  Idaho, 
97. 

342.  In  construing  a  contract  where  the 
language  thereof  is  contradictory,  obscure, 
or  ambiguous,  or  where  its  meaning  is 
doubtful,  so  that  it  is  susceptible  of  two 
constructions,  one  of  which  makes  it  fair, 
customary,  and  such  as  prudent  men  would 
naturally  execute,  while  the  other  makes  it 
inequitable,  unusual,  or  such  as  reasonable 
men  would  not  be  likely  to  enter  into,  the 
interpretation  which  makes  a  rational  and 
probable  agreement  must  be  preferred.  A. 
Leschen  &  Sons  Rope  Co.  v.  Mayflower  Gold 
Min.  &  R.  Co.  35:  I,  173  Fed.  855,  97  C.  C. 
A.  465. 

343.  The  laws  upon  the  subject  of  a  con- 
tract are  read  into  and  become  a  part  of  it, 
to  the  same  extent  as  though  they  were 
written  into  its  terms.  Armour  Packing  Co. 
V.  United  States,  14:  400,  153  Fed.  I,  82  C.  C. 
A.  135. 

344.  Printed  matter  in  the  heads  of  let- 
ters upon  which  a  contract  is  written,  which 
is  not  referred  to  in  the  writing,  is  not  a 
part  of  the  contract.  R.  J.  Menz  Lumber 
Co.  V.  E.  J.  McNeeley  &  Co.  28:  1007,  108 
Pac.  621,  58  Wash.  223. 

Eifect   of   custom. 

345.  A  custom  which  contravenes  a  posi- 
tive statute  is  invalid,  and  does  not  become 
a  part  of  a  contract.     Deadwyler  v.  Karow, 
19:  197,  62  S.  E.  172,  131  Ga.  227. 
Intention      of     parties;      constmction 

given  by  them. 

Public  contract,  see  infra,  785. 

Evidence  as  to  intent  of  party,  see  Evi- 
dence, 1615-1624. 

In  case  of  lease  of  municipal  property,  see 
Municipal  Corporations,  495. 

346.  The  court,  in  construing  a  contract, 
should  put  itselif  in  place  of  the  parties 
thereto  when  their  minds  met  upon  the 
terms  thereof,  and  then  from  a  considera- 
tion of  the  writing  itself,  of  its  purpose, 
and  of  the  circumstances,  ascertain  what 
they  intended  to  agree  to  do,  and  upon 
what  sense  and  meaning  of  tlie  terms  they 
used  their  minds  actually  met.  A.  Leschen 
&  Sons  Rope  Co.  v.  Mayflower  Gold  Min. 
&  K.  Co.  35:  I,  173  Fed.  855,  97  C.  C.  A. 
465. 

347.  In  construing  a  written  contract  the 
intent  of  the  parties,  when  manifest,  or 
when  agfcertained  therefrom,  must  control 
without  regard  to  inapt  expressions  or  the 
dry  words  of  the  contract,  unless  that  in- 
tent is  directly  contrary  to  the  plain  sense 
of  the  binding  words  of  the  agreement.  A. 
Leschen  &  Sons  Rope  Co.  v.  Mayflower  Gold 
Min.  &  R.  Co.  35:  I,  173  Fed.  855,  97  C.  C. 
A.  465. 

348.  The  practical  construction  of  am- 
Dicest   1-52  Ii.R.A.(N.S.) 


biguous  terms  of  a  contract,  arising  from 
the  acts  of  the  parties  interested,  will  be 
adopted,  although  the  language  used  may 
more  strongly  suggest  another  construction. 
Pittsburg  Vitrified  Pav.  &  Bldg.  B.  Co.  v. 
Bailey,  12:  745,  90  Pac.  803,  76  l-Can.  42. 

349.  The  practical  construction  placed  by 
the  parties  upon  a  contract  for  the  sale  of 
hops  as  to  right  of  inspection  will  be  fol- 
lowed by  the  courts.  Mitau  v.  Roddan, 
6:  275,  84  Pac.  145,  149  Cal.  1. 

350.  The  rule  that  contemporary  con- 
struction is  to  be  given  weight  in  the  inter- 
pretation of  contracts  applies  only  where 
the  contract  is  ambiguous  and  the  intention 
is  doubtful.  Sternbergh  v.  Brock,  24:  1078, 
74  Atl.  166,  225  Pa.  279. 

351.  A  licensee  of  a  right  to  use  a  device 
under  a  patent  may  be  required  to  pay 
royalties  on  a  device  which  is  not  in  fact 
within  the  protection  of  the  patent  so  long 
as  the  parties  treat  it  as  within  such  pro- 
tection. Strong  V.  Carver  Cotton  Gin  Co. 
14:  274,  83  N.  E.  328,  197  Mass.  53. 

( Annotated ) 
So   as   to  uphold   contract. 

352.  In  case  of  a  contract  which  is  so  ex- 
pressed as  to  be  susceptible  of  different  un- 
derstandings, which  are  asserted  by  the  par- 
ties thereto,  that  one  will  be  adopted  which, 
will  uphold,  rather  than  defeat,  the  validity 
of  the  instrument.  McEvoy  v.  Security  F. 
Ins.  Co.  22:  964,  73  Atl.  157,  110  Md.  275. 

ft.  Entirety. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

Of  insurance  contFact,  see  Insurance,  III. 

e,  1,  £. 
Sufficiency  of  plea  to  raise  issue  of  entirety, 

see  Pleading,  518. 
See  also  infra,  572,  642. 

353.  The  mere  affixing  of  a  price  to  each 
bushel  of  a  crop  contracted  to  be  threshed 
is  not  sufficient  to  make  the  contract  sever- 
able. Johnson  v.  Fehsefeldt,  20:  1069,  118 
N.  W.  797,  106  Minn.  202.  (Annotated) 

354.  A  proposition  to  real  estate  brokers 
for  the  sale  of  land,  contained  in  a  letter 
stating  that  the  writer  has  large  tracts  of 
land  for  sale,  and  that  if  they  have  any 
clients  looking  for  tracts  of  land  of  the  size 
of  these,  either  one  will  surely  suit  thom, 
and  fixing  the  prices  at  so  much  net  per  acre 
to  the  writer,  together  with  another  letter 
referring   to   "putting   the   6,000-acre   tract 

.  up"  for  sale,  which  has  been  ac- 
cepted by  the  real  estate  brokers,  consti- 
tutes an  entire  contract,  and  does  not  au- 
thorizse  the  brokers  to  sell  or  find  a  pur- 
chaser for  any  part  of  the  tract  less  than 
the  whole.  Bentley  v.  Edwards,  51 :  254,  146 
N.  W.  347,  125  Minn.  179. 

355.  The  purchaser  of  a  business  includ- 
ing secret  formulas  cannot  defeat  the  fore- 
closure of  a  mortgage  given  to  secure  pay- 
ment of  unpaid  purchase  money,  merely 
because  the  vendor  agreed  not  to  re-engage 
in   such   business   anywhere   in   the   United 


«40 


CONTRACTS,  U.  c,  d,  1. 


States,  since  such  agreement,  if  invalid,  is 
severable,  and,  containing  nothing  contrary 
to  good  morals,  payment  of  the  purchase 
money  may  be  enforced.  Nicholson  v.  Eilis, 
24:  942,  73  Atl.   17,   110  Md.   322. 

(Annotated) 
356.  A  contract  to  perform  personal  serv- 
ices in  a  law  ollice  for  a  specilied  time,  for 
a  share  of  the  fees,  is  indivisible,  and  no 
action  can  be  maintained  upon  it  if  the 
service  is  left  before  the  time  expires. 
Davidson  v.  Gaskill,  38:  692,  121  Pac.  649, 
32  Okla.  40. 

o.  Time. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Parol  evidence  to  vary  terms  as  to  time 
when  obligation  becomes  due,  see  Evi- 
dence, 931. 

For  delivery  of  goods  sold,  see  Sale,  35. 

Effect  of  failure  to  specify  time  on  specific 
performance  of  contract,  see  Specific 
Performance,  90. 

See  also  supra,  273;  infra,  IV.  f. 

•  357.  An  agreement  whereby  a  landowner, 
in  consideration  of  $1  and  other  considera- 
tion, agreed  to  convey  a  described  strip  of 
land  for  an  electric  railway  right  of  way 
as  soon  as  the  track  was  laid  thereon,  and, 
for  other  like  consideration,  further  agreed 
to  pay  a  stipulated  sum  as  soon  as  the  rail- 
way company  put  the  line  in  operation  from 
B.  to  such  described  strip  of  land,  with  a 
specified  service  thereon,  embodies  two  com- 
plete contracts;  one  for  a  conveyance  of  a 
right  of  way,  and  the  other  to  pay  a  bonus 
as  specified,  the  latter  of  which  may  be  en- 
forced by  the  railway  company  upon  com- 
pletion of  its  road  to  the  boundary  line  of 
the  described  premises  and  the  institution 
of  tiie  stipulated  services,  although  it  ma^ 
not  be  in  a  position  to  demand  the  right  of 
way,  because  it  has  not  complied  with  that 
part  of  tlie  agreement  providing  for  a  con- 
veyance thereof.  Bois6  Valley  Constr.  Co. 
V.  Krocger.  28:  968,  105  Pac.  1070,  17  Idaho, 
384. 

d.  Particular      ivords,      phrases,      and 
cases. 

1.  Miscellaneous. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Memorandum  on  back  of  note  as  part  of 
contract,    see    Alteration    of    Iwstku- 

MENT8,    14. 

Contract  by  bailee  to  return  animal  in  as 
good  condition  as  when  received,  see 
Bailment,  15-17. 

Compromise  agreement,  see  Compromise 
AND  Settlement,  3. 

As  to  condition  subsequent  relating  to  real- 
ty, see  Covenants  and  CoNDinoNS, 
11-13. 

Dieest  1-52  I^R.A.(N.S.) 


What  censtituters  "indebtedness"  assiinied  l»y 
transferee  of  corporate  franchise,  see 
Corporations,  2'J. 

To  convey  real  estate  by  good  and  sutticient 
deed,  see  Deeds,  2. 

Parol  evidence  as  to  meaning  of  particular 
words,  see  Evidence,  9(i2-968. 

Agreement  consigning  goo'tls  for  sale  by 
factors,  see  Factors,  2. 

Antenuptial  agreement,  see  Husband  and 
Wife,  II.  i. 

Contract  of  insurance  agent,  «ee  Insurance, 
32. 

Meaning  of  word  "may"  in  insurance  pol- 
icy, see  Insurance,  188. 

Meaning  of  term  "destitute  of  means  of 
support"  in  insurance  policy,  see  In- 
surance, 189. 

Construction  of  insurance  contract  general- 
ly, see  Insurance,  III.  d. 

Contract  to  support  person  in  part  pay- 
ment of  rent,  see  Landlord  and  Ten- 
ant, 185. 

Contract  of  employer  to  pay  employee  sick 
benefits,  see  Master  and  Servant,  85. 

Contract  of  partnersliip,  see  Partnp:rship, 
I. 

Contract  between  telephone  company  and 
municipality,  see  Tki.ephones,  14. 

Testamentary  character  of  instrument,  set 
Wills,  I.  a,  2. 

358.  Under  a  written  contract  for  the  col- 
lection of  claims  according  to  a  system  of 
one  of  the  parties,  the  sj'stem  as  explained 
by  the  agent  securing  the  contract,  although 
not  in  writing,  becomes  a  part  thereof. 
American  Mercantile  Exchange  v.  Blunt,  10: 
414,  66  Atl.  212,  102  Me.  128. 

359.  An  agreement  by  a  manufacturer  to 
furnish  two  thirds  of  its  freight  tonnage  to 
a  contemplated  railroad  to  secure  its  con- 
struction does  not  require  the  tonnage  to 
be  furnished  as  it  accrues.  Lone  Star  Salt 
Co.  V,  Texas  Short  Line  R.  Co.  3:  828,  90 
S.  W.  863,  99  Tex.  434. 

360.  A  contract  providing  for  the  pay- 
ment of  a  bonus  upon  the  putting  in  opera- 
tion of  a  certain  electric  railway  from  B. 
"to  the  strip  of  land  above  described"  does 
not  mean  "upon  or  over,"  but  merely  "to," 
the  boundary  of  such  strip  of  land.  Bois^ 
Valley  Constr.  Co.  v.  Kroeger,  28:  968,  105 
Pac.  1070,  17  Idaho,  384. 

361.  A  contract  between  the  next  of  kin 
of  a  decedent,  that  they  will  each  have  a 
certain  portion  of  the  estate,  does  not 
amount  to  an  agreement  to  divide  the  es- 
tate without  probating  the  will.  Blount  v. 
Dillaway,  17:  1036,  85  N.  E.  477,  199  Mass. 
330. 

362.  An  agreement  to  treat  a  child  in  all 
respects  as  one's  own,  made  to  secure  pos- 
session of  it  from  an  orphan  asylum,  im- 
poses no  obligation  to  will  property  to  it. 
Baumann  v.  Kusian,  44:  756,  129  Pac.  986, 
164  Cal.  582. 

363.  A  contract  between  an  employer  and 
employee  by  which  a  fund  shall  be  created 
by  joint  contributions  which,  in  case  of  the 
death  of  the  employee,  shall  be  paid  first  to 
his  widow,  and  in  which  the  employer  re- 


CONTRACTS,  II.  d,  2. 


641 


serves  the  right  to  retain  all  sums  due  for 
indemnities  under  the  contract  vmtil  a  re- 
lease is  properly  executed  by  all  persons 
interested  in,  or  injured  by,  the  death  of  the 
employee,  does  not  require  a  release  only 
from  those  interested  under  the  contract, 
but  the  employer  may  retain  the  fund  un- 
til the  widow  presents  a  release  from  all 
persons  interested  in,  or  injured  by,  the 
death  of  the  employee.  Frank  v.  Newport 
Min.  Co.  II :  182,  112  N.  W.  504,  148  Mich. 
637.  (Annotated) 

IJicensing   use   of  patented   article. 

364.  Under  a  contract  licensing  the  use 
of  an  automatic  attachment  covered  by  a 
particular  patent,  which  obligates  the  li- 
censee to  pay  a  royalty  for  each  automatic 
attachment  made  and  sold,  a  licensee  will 
be  required  to  pay  for  only  those  attach- 
ments which  are  in  fact  covered  by  the  pat- 
ent, although  it  makes  similar  ones  which 
are  not  so  covered,  and  upon  which  it  paid 
a  royalty  prior  to  the  execution  of  the  con- 
tract; since  the  contract  must  be  interpret- 
ed by  its  terms,  and  not  by  the  aid  of  parol 
evidence  of  prior  conduct.  Strong  v.  Car- 
ver Cotton  Gin  Co.  14:  274,  83  N.  E.  328, 
197  Mass.  53. 
Not  to  interfere  witli   "cnstomers"  of 

manufacturer. 

365.  One  who  has  refused  to  purchase  all 
his  supplies  from  a  manufacturer  unless 
forced  to  do  so  cannot  be  regarded  as  a 
customer,  within  the  meaning  of  a  contract 
between  the  manufacturer  and  a  jobber  that 
the  latter  shall  not  sell  to,  or  interfere  with, 
the  customers  or  trade  of  the  manufacturer. 
Knickerbocker  Ice  Co.  v.  Gardiner  Dairy 
Co.  16:  746,  69  Atl.  405,  107  Md.  556. 
Not    to    enter   competitive   business. 

366.  A  distillery  located  within  about  a 
mile  from  the  courthouse  at  a  certain  place, 
and  about  a  half  mile  from  the  town  limits, 
the  town  being  the  shipping  point  for  the 
products,  is  located  "at"  a  place,  within  the 
meaning  of  a  contract  prohibiting  another 
from  conducting  a  rival  business  while  it  is 
so  located.  Harris  v.  Theus,  10:  204,  43  So. 
131,  149  Ala.  133. 

367.  An  agreement  by  a  retiring  partner 
"not  to  engage  for  the  next  two  years"  in 
the  same  city  in  competition  with  a  busi- 
ness sold,  in  "the  manner  aforesaid,  or  with 
any  partner,  partners,  firm,  company,  or 
corporation  for  the  period  aforesaid,"  is  vio- 
lated by  the  entering  of  such  partner  into 
the  employ,  as  a  managing  clerk,  of  a  third 
person,  whom  such  retiring  partner  was  in- 
strumental in  procuring  to  open  a  rival 
business  adjacent  to  that  of  the  original 
firm,  and  such  violation  should  be  enjoined 
at  the  suit  of  the  purchasing  partner.  Sie- 
gel  V.  Marcus,  20:  769,  119  N.  W.  358,  18 
N.  D.  214.  (Annotated) 
To   pay   draft. 

368.  One  who  advises  another  in  writing 
that  he  will  honor  the  draft  of  a  third  per- 
son for  a  specified  amount  on  hogs  or  cat- 
tle does  not  undertake  to  honor  any  draft 
which  such  third  person  may  draw  upon 
him,  but  only  such  as  are  for  the  price  of 
Digest  1-52  L.R.A.(N.S.)  41 


stock  shipped  to  him.     Stough  v.  Healy,  10: 

918,  89  Pac.  898,  75  Kan.  526. 

To  maintain  depot  and  operate  trains. 

369.  An  agreement  contained  in  a  deed 
conveying  lands  to  a  railroad  company  for 
its  right  of  way,  by  the  owner  of  a  hotel 
situated  upon  the  line,  that  the  company 
shall  maintain  a  spur  track,  depot,  and 
platform,  and  operate  all  its  regular  pas- 
senger trains  thereon  during  the  winter 
tourist  season,  indicates  an  intention  that 
the  agreement  should  remain  in  force  at 
least  during  the  continuance  of  substantial- 
ly the  same  mutual  conditions  and  relations 
of  the  parties  and  their  privies.  Taylor  v. 
Florida  East  Coast  R.  Co.  16:  307,  45  So. 
574,  54  Fla.  635. 
"With  carrier. 
See  also  supra,  369. 

370.  Provisions  in  a  live-stock  shipping 
contract,  specifying  to  whom  and  when  no- 
tice in  writing  for  any  claim  for  loss  or  in- 
jury must  be  given  and  within  what  time 
an  action  must  be  commenced,  relate  to 
damages  received  during  transportation  only, 
and  are  inapplicable  where  the  damages 
claimed  were  sustained  while  the  cattle  were 
awaiting  shipment  in  the  cattle  yards  of 
the  railroad  company.  St.  Louis  &  S.  F., 
R.  Co.  V.  Beets,  10:  571,  89  Pac.  683,  75 
Kan.  295. 
Assumption  of  debts. 

371.  The  obligation  of  one  who  assumes 
the  debts  of  a  bank  in  consideration  of  a 
transfer  to  him  of  its  assets  is  not  limited 
to  the  amount  at  which  the  debts  are  esti- 
mated. Moore  v.  First  Nat.  Bank,  10:  260, 
88  Pac.  385,  38  Colo.  336. 

372.  The  undertaking  of  one  who  assumes 
the  debts  of  a  bank  in  consideration  of  a 
transfer  to  him  of  its  assets  includes  the 
duty  to  meet  the  obligation  of  the  bank  as 
indorser  upon  a  note  which  it  has  trans- 
ferred for  value  to  a  third  person;  and  the 
indorsee  may  therefore  enforce  the  obliga- 
tion against  him.  Moore  v.  First  Nat.  Bank, 
10:  260,  88  Pac.  385,  38  Colo.  336. 

373.  An  agreement  by  a  purchaser  of  a 
retail  stock  of  goods  to  assume  and  pay 
"the  outstanding  and  open  account"  held 
by  a  designated  creditor  does  not  include  an 
indebtedness  arising  from  promissory  notes 
held  by  such  creditor.  Kramer  v.  Gardner, 
22:  492,  116  N.  W.  925,  104  Minn.  370. 

2.  As  to   transfer  of  property. 

a.  Real  property. 

(See   also   same   heading   in  Digest  L.R.A. 
1-70.) 

Construction   of  deed   as  to  boundary,  see 

BOUNDAKIES,    II. 

Contracts    as    to    real    property,   generally, 

see  Vendor  and  Purchasee. 
Contract  for  good  or  marketable  title,  see 

Vendor  and  Purchaser,  I.  c. 
Contracts  as  to  quantity  of  land,  see  Vek- 

DOR  and  Purchaser,  I.  d. 
See  also  swpra,  369 ;  Specific  Performance, 

15. 


G42 


CONTRACTS,  II.  d,  3,  4. 


374.  A  confirmation  of  a  land  grant  for 
allotments  merely,  with  a  rejection  of 
claims  for  outlying  pasture  lands,  is  a 
"confirmation"  within  the  moaning  of  an 
agreement  to  pay  a  specified  amount  upon 
the  "confirmation"  of  such  land  grant. 
Joseph  V.  Catron,  i:  1120,  81  Pac.  439,  13  N. 
M.  202. 

375.  A  confirmation  of  a  land  grant  by 
the  court  of  private  land  claims  created  by 
an  act  of  Congress  is  a  confirmation  by 
Congress,  within  the  terms  of  an  agreemeut 
for  the  payment  of  a  specified  amount  up- 
on the  confirmation  of  such  land  grant  by 
Congress.  Joseph  v.  Catron,  i:  1120,  81 
Pac.  439,  13  N.  M.  202. 

376.  Timber  measuring  more  than,  as  well 
as  that  measuring  exactly,  12  inches,  passes 
by  a  conveyance  of  "all  pine  timber  that 
will  measure  12  inches  at  the  stump  18 
inches  above  the  ground  when  cut." 
Dennis  Simmons  Lumber  Co.  v.  Corey, 
6:  468,  53  S.  E.  300,  140  N.  C.  462. 

377.  Where  a  contract  has  been  made  for 
the  sale  of  real  property  and  its  convey- 
ance by  warranty  deed,  the  purchaser  ordi- 
narily has  a  right  to  insist  that  such  deed 
shall  be  executed  by  the  person  with  whom 
he  contracted.  George  H.  Paul  Co.  v.  Shaw, 
37:  1 123,  119  Pac.  546,  86  Kan.  136. 

378.  Under  a  contract  to  deliver  a  war- 
ranty deed  to  property  within  a  certain 
time  after  the  title  has  been  examined  and 
found  good,  the  vendor  is  under  no  obliga- 
tion to  furnish  an  abstract  of  title.  Turn 
Verein  Eiche  v.  Kionka,  43:  44,  99  N.  E. 
684,  255  111.  392.  (Annotated) 

379.  A  lessee  who  undertakes  to  pay  the 
cost  and  charge  of  a  conveyance  to  him  of 
the  fee,  which  is  provided^  for  by  the  terms 
of  the  lease,  is  not  bound  to  pay  a  counsel 
fee  for  the  investigation  of  his  right  to  a 
conveyance.  Hollander  v.  Central  Metal  & 
S.  Co.  23:  1 135,  71  Atl.  442,  109  Md.  131. 

b.  Personal  property. 

(See   also   same  heading   in  Digest   L.R.A. 
1-70.) 

380.  A  clause  in  a  contract  to  furnish  to 
a  manufacturer  who  has  been  in  the  habit 
of  running  his  plant,  not  to  its  full  capac- 
ity, but  merely  to  fill  orders  and  keep  a 
reasonable  stock  on  hand,  between  a  mini- 
mum and  maximum  amount  of  raw  ma- 
terial, stating  "We  take  care  of  buyer's 
needs  this  year,"  does  not  require  the  fur- 
nishing of  material  in  excess  of  the  maxi- 
mum quantity  named,  necessary  to  run  the 
plant  at  full  capacity,  if  that  is  in  excess 
of  orders  and  reasonable  surplus  for  stock. 
T.  B.  Walker  Mfg.  Co.  v.  Swift  &  Co. 
43:  730,  200  Fed.  529.  (Annotated) 

381.  Language  in  an  acceptance  of  an  or- 
der for  goods,  "We  accept  and  enter  same 
for  shipment.  .  .  .  We  anticipate  mak- 
ing shipment," — requires  the  seller  to  fur- 
nish cars.  R.  J.  Menz  Lumber  Co.  v.  E.  J. 
McNeeley  &  Co.  28:  1007,  108  Pac.  621,  57 
Wash.   223. 

Digest  1-52  L.R.A.(N.S.) 


382.  The  phrase  "f.  o.  b.  cars,"  when  used 
in  a  contract  between  a  buj'er  aud  seller  of 
commercial  commodities,  where  the  use  of  a 
common  carrier  is  necessary,  means  that  the 
seller  will  secure  the  cars,  load  them,  and 
do  whatever  may  be  required  to  accomplish 
the  shipment  and  consignment  of  the  goods 
to  the  buyer,  free  of  expense  to  him. 
Hurst  V.  Altamont  Mfg.  Co.  6:  928,  85  Pac. 
551,  73  Kan.  422. 

3.  Other   agreements   relating    to    land 

or   water. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

See  also  infra,  389. 

383.  A  lease  of  land,  and  not  a  hiring  of 
convicts,  is  efiected  by  a  contract  reciting 
that  the  board  of  control  has  agreed  to  work 
a  plantation,  and  is  to  pay  to  the  owner  all 
the  crops  after  deducting  a  certain  amount 
which  the  owner  guarantees  shall  be  raised. 
State  ex  rel.  Greaves  v.  Henry,  5:  340,  40  So. 
152,  87  Miss.  125. 

384.  A  contract  by  a  logging  company  to 
maintain  a  boom  along  the  bank  of  a  ri- 
parian owner  to  protect  the  land  does  not 
render  it  liable  for  injury  to  the  land 
through  the  destruction  of  the  boom  by  an 
unprecedented  flood.  Coleman  v.  Mississippi 
&  R.  R.  Boom  Co.  35:  1109,  131  N.  W.  641, 
114  Minn.  443.  (Annotated) 

4.  For  services;  constrtiction  of  build- 

ings or  worUs. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Termination  of,  see  infra,  723,  724. 

Cropper's  contract,' see  Choppers,  1,  2. 

Provisions  converting  contract  of  hiring  in- 
to one  of  bailment,  see  Master  and 
Servant,  880. 

Right  of  one  giving  notes  for  good  will  of 
business  and  owner's  services  to  coun- 
terclaim, in  action  on  note,  value  of 
services  not  rendered  because  of  death, 
see  Set-Oiit  and  Counterclaim,  3. 

See  also  supra,  30. 

385.  A  promoter  of  a  corporation  who 
undertakes,  as  part  of  the  inducement  to 
the  undertaking,  to  devote  his  whole  time 
and  attention  to  the  corporate  business, 
without  specifying  the  period  over  which 
the  services  are  to  extend,  is  not  bound  to 
continue  such  services  for  a  reasonable  time, 
but  may  cease  to  render  them  at  pleasure, 
without  liability  to  persons  who  invested 
their  money  on  the  faith  of  the  promise,  al- 
tl'ough  the  withdrawal  of  the  service  wrecks 
the  corporation.  Watson  v.  Gugino,  39: 
1090,  98  N.  E.  18,  204    N.  Y.  535. 

386.  Where  one,  having  undertaken  to 
clear  the  title  to  another's  property  and  dis- 
pose of  it  for  one  half  the  proceeds,  ex- 
changes a  certain  portion  of  it  for  a  judg- 
ment on  a  claim  against  one  in  whose  name 


CONTRACTS,  II.  d,  4. 


643 


the  property  formerly  stood,  by  reason  of 
which  fact  the  judgment  creates  a  cloud  on 
the  title  to  the  property;  and  the  transac- 
tion is  ratified  by  the  owner;  and  the  es- 
tate of  the  judgment  debtor  subsequently 
proves  to  be  good  for  part  of  the  amount  of 
the  judgment," — such  part  is  to  be  regarded 
as  proceeds  within  the  meaning  of  the  con- 
tract. Mills  V.  Smith,  6:  865,  78  N.  E.  7G5, 
193  Mass.  11. 

387.  A  contract  by  a  sugar  manufacturer 
to  instruct  and  supervise  a  beet  grower  in 
the  making  of  a  crop  does  not  require  him 
to  instruct  the  grower's  laborers.  Smith  v. 
Billings  Sugar  Co.  15:  837,  94  Pac.  839,  37 
Mont.  128. 

388.  A  sale,  within  the  meaning  of  a  con- 
tract between  a  firm  engaged  in  colonizing 
large  tracts  of  western  lands  aqd  having  in 
its  employment  a  large  number  of  traveling 
agents  and  field  agents,  and  an  agent  of  the 
latter  class,  providing  for  the  negotiation  of 
sales  by  the  latter,  and  agreeing  to  pay  him 
commissions  of  25  cents  per  acre  on  sales 
made  by  him  without  assistance  from  other 
parties,  to  purchasers  found  by  him,  10 
cents  per  acre  on  land  sold  by  the  other 
party  or  its  other  agents  with  his  assist- 
ance, and  5  cents  per  acre  on  land  sold  un- 
der his  advice,  but  without  his  assistance, — 
is  not  effected  by  a  contract  by  which  the 
owners  of  the  land,  being  desirous  of  secur- 
ing irrigation  in  order  to  promote  its  sale, 
convey  the  land  to  an  irrigation  company, 
the  value  of  whose  property  is  less  than  the 
value  of  the  lands,  receiving  therefor,  in  ad- 
dition to  49  per  cent  of  the  stock  of  the  lat- 
ter company,  an  amount  of  its  bonds  suffi- 
cient to  equalize  the  interests  of  the  re- 
spective parties  in  the  assets  of  the  corpo- 
ration. Close  V.  Browne,  13:  634,  82  N.  E. 
629,  230  111.  228. 

389.  The  words  "and  other  property,"  in 
a  contract  to  pay  a  commission  upon  the 
purchase  of  certain  lands  and  other  property 
for  a  certain  sum,  will  be  treated  as  sur- 
plusage, and  the  agreement  regarded  as 
applying  only  to  the  purchase  of  the  land, 
in  the  absence  of  anything  to  show  an  in- 
tention to  include  anj'  other  property  in  the 
agreement.  McLure  v.  Luke,  24:  659,  154 
Fed.  647,  84  C.  C.  A.  1. 

Building  or  construction  contracts. 

When  action  for  instalments  on,  accrues,  see 
Action  ok  Suit,  8. 

Admissions  by  building  contractor,  see  Ad- 
missions. 

Estoppel  to  question  validity  of  assignment 
of,  see  Estoppel,  115. 

Evidence  in  action  on,  see  Evidence,  1624, 
1648. 

Rights  and  liabilities  of  siM^ety  for  building 
contractor,  see  Principal  and  Surety, 
9,  10,  20-23,  39,  40. 

Contribution  between  sureties  on  contract- 
or's bond,  see  Principal  and  Surety, 
73,  74. 

390.  Under  a  contract  by  an  architect  to 
draw  plans  and  superintend  the  construc- 
tion of  a  building  to  the  "entire  satisfac- 
tion" of  the  owner  for  a  percentage  of  the 
cost  of  the  building,  which  describes  the 
Digest  1-52  L.R.A.(N.S.) 


character  of  the  work  and  materials  to  be 
employed,  the  owner  cannot  discharge  him 
without  reasonable  ground  for  dissatisfac- 
tion. Gould  V.  McCormick,  47:  765,  134 
Pac.  676,  75  Wash.  61. 

391.  A  property  owner  who  has  made  a 
contract  for  the  furnishing  of  materials  and 
the  erection  of  a  building  upon  his  property 
is  not  personally  liable  for  materials  sold 
and  delivered  to  the  contractor  for  use  in 
the  building.  Volker-Scowcroft  Lumber  Co. 
V.  Vance,  24:  321,  103  Pac.  970,  36  Utah,  348. 

392.  Under  a  building  contract  calling  for 
material  of  a  certain  make  "or  equal,"  the 
contractor  is  not  bound  to  furnish  the  ma- 
terial specified  if  procurable,  and  substitute 
other  material  only  when  that  specified  is 
not  obtainable,  but  may  use  material  equal 
to  that  specified  in  the  first  instance  if  it 
can  be  procured.  Camp  v.  Neufelder,  22: 
376,  95  Pac.  640,  49  Wash.  426. 

393.  A  property  owner  is  not  bound  as 
guarantor  for  the  sufficiency  of  plans  for 
the  construction  of  a  building  as  a  legal 
consequence  of  submitting  them  for  bids  on 
the  work,  and  entering  into  a  contract  there- 
for. Lonergan  v.  San  Antonio  Loan  &  T. 
Co.  22:  364,  104  S.  W.  1061,  101  Tex.  63. 

394.  A  guaranty  by  the  property  owner  of 
the  sufficiency  of  the  plans  on  which  he  con- 
tracts for  the  erection  of  a  building  cannot 
be  derived  from  provisions  in  the  contract 
giving  the  architect  supervision  and  con- 
trol of  the  work.  Lonergan  v.  San  Antonio 
Loan  &  T.  Co.  22:  364,  104  S.  W.  1061,  101 
Tex.  63. 

395.  A  property  owner  contracting  for 
the  construction  of  a  building  does  not 
guarantee  the  sufficiency  of  the  plans  by  a 
clause  in  the  contract  that  he  is  bound  by 
the  acts  of  the  architect  as  to  the  sufficiency 
of  the  design,  material,  and  workmanship,, 
where"  it  is  used  in  connection  with  pro- 
visions for  changes  in  design  and  materials 
from  the  original  plan.  Lonergan  v.  San 
Antonio  Loan  &  T.  Co.  22:  364,  104  S.  W. 
1061,  101  Tex.  63. 

396.  A  provision  in  a  contract  for  the 
construction  of  a  cellar  according  to  speci- 
fications, "the  whole  to  '  e'  perfectly  water- 
tight and  guaranteed,"  binds  the  contractor 
only  so  far  as-  his  own  work  is  concerned, 
and  does  not  guarantee  that  the  plans  will 
produce  a  water-tight  cellar.  Bush  v. 
Jones,  6:  774,  144  Fed.  942,  75  C.  C.  A.  582. 

397.  The  character  of  ornamental  work 
which  a  contractor  undertook  to  supply  for 
a  building  cannot  be  determined  from  the 
general  standing  of  thfe  architect,  or  the 
character  of  the  building,  where  it  was  pos- 
sible to  furnish  detail  drawings,  as  is  mani- 
fest by  the  fact  that  they  were  furnished  af- 
ter the  contract  was  signed.  Snead  &  Co.. 
Iron  Works  v.  Merchants'  Loan  &  T.  Co. 
9:  1007,  80  N.  E.  237,  225  111.  442. 

398.  Where,  after  signing  a  contract  for 
ornamental  work  in  a  building,  certain  pro- 
visions in  which  are  differently  interpreted 
by  the  parties,  the  contractor  sends  to  the 
owner's  representative  a  letter  setting  forth 
his  interpretation,  after  which  the  owner 
signs  and  returns-the  contract  without  notic- 


644 


CONTRACTS,  III.  a. 


ing  the  letter,  the  contractor  has  a  right 
to  assume  that  his  construction  of  the  con- 
tract has  been  assented  to.  Snead  &  Co. 
Iron  Works  v.  Merchants'  Loan  &  T.  Co. 
9:  1007,  80  N.  E.  237,  225  III.  442. 

399.  The  contractor  for  ornamental  work 
in  a  building  cannot  be  held  liable,  under  a 
provision  of  the  contract  fi.ving  a  penalty 
for  delay  in  finishing  the  work,  for  delay 
caused  by  the  fai-lure  of  the  architect,  who 
is  the  agent  of  the  owner,  in  furnishing  the 
detail  drawings.  Snead  &  Co.  Iron  Works 
V.  Merchants'  Loan  &  T.  Co.  9:  1007,  80  N. 
E.  237,  225  111.  442. 

400.  Power  given  the  owner  to  take 
charge  of  the  work  upon  failure  of  a  build- 
ing contractor  diligently  to  prosecute  the 
work,  or  to  employ  competent  help,  will  not 
entitle  him  to  do  so  upon  failure  to  comply 
with  the  contract  as  to  material  used  or 
work  done.  Brent  v.  Head,  W.  &  Co.  16: 
801,  115  N.  W.  1106,  138  Iowa,  146. 

401.  A  provision  in  a  building  contract 
authorizing  forfeiture  of  the  contract  with 
retention  of  moneys  already  earned,  leaving 
the  contractor  liable  for  the  expense  of  com- 
pleting the  work,  for  his  failure  "promptly 
and  properly  to  proceed  with  and  complete 
the  work,"  will  not  be  construed  as  apply- 
ing merely  to  failure  to  progress  the  work, 
where  another  clause  of  the  contract  pro- 
vides that  for  such  failure  the  owners  may 
increase  the  force  at  the  contractor's  ex- 
pense. Brady  v.  Oliver,  41:  60,  147  S.  W. 
1135,  125  Tenn.  595. 

402.  A  provision  in  an  excavation  con- 
tract taking  material  tliat  cannot  be  plowed 
out  of  the  class  of  ordinary  earth,  for  pur- 
poses of  compensation,  means  that  cannot 
be  plowed  with  reasonable  facilities,  and  in- 
cludes such  material  as  hardpan,  or  that 
containing  large  and  coarse  boulders  and 
cemented  gravel,  which  frequently  turns  the 
plow  out  of  its  shallow  f  irrow,  or  fastens 
it  so  firmly  that  unusual  means  are  r-e- 
quired  to  loosen  and  extract  it.  Indian- 
apolis Northern  Traction  Co.  v.  Brennan, 
30:  85,  87  N.  E.  215.  90  N.  E.  65,  174  Ind.  1 

403.  That  the  most  feasible  and  available 
method  of  loosening  material  to  be  exca- 
vated under  a  contract  which  takes  materi- 
al that  cannot  be  plowed  out  of  the  class 
of  ordinary  earth,  for  purposes  of  compen- 
sation, is  the  plow,  does  not  require  com- 
pensation at  the  rate  paid  for  ordinary 
earth,  if  it  cannot  be  plowed  in  the  ordi- 
nary manner.  Indianapolis  Northern  Trac- 
tion Co.  v.  Brennan,  30:  85,  87  N.  E.  215, 
90  N.  E.  65,  174  Ind.  1. 

404.  In  an  excavation  contract  providing 
that  loose  rock,  which  is  not  to  be  re- 
moved at  the  ordinary  price,  shall  comprise 
hard  shale,  coarse  boulders  in  gravel,  ce- 
mented gravel,  hardpan,  or  any  other  ma- 
terial which  cannot  be  plowed  in  a  speci- 
fied manner,  a  provision  that  it  is  to  be 
understood  that  the  plowing  test  shall  ap- 
ply to  all  materials  named  herein  does  not 
apply  to  the  substances  specified,  but  only 
to  "any  other  material"  which  cannot  be 
plowed.  Indianapolis  Northern  Traction 
Digest  1-52  L.R.A.(N.S.') 


Co.  y.  Brennan,  30:  85,  87  N.  E.  215,  90  N. 
E.  65,  68,  91  N.  E.  503,  174  Ind.  1. 

III.  Validity  and  effect, 

a.  In  general. 

(See   also   same   heading   in  Digest  L.R.A. 

1-10.) 

Implied  contract  to  pay  for  services  ren- 
dered or  goods  obtained  under  invalid 
contract,  see  supra,  40,  41,  45,  46. 

As  to  consideration,  see  supra,  I.  c. 

As  to  definiteness  and  meeting  of  minds, 
see  supra,  I.  d. 

Formal  requisites,  see  supra,  I.  e. 

Validity  of  contract  of  assignment,  see  As- 
signment, I. 

Contract  of  intoxicated  person,  see  Bills 
AND  Notes,  13-16 ;  Drunkenness  ;  Evi- 
dence, 2222. 

Contract  for  transportation  of  livestock,  see 
Carriers,  887. 

Validity  of  contract  between  carrier  and 
shipper  as  to  rates,  see  Carriers,  1052, 
1053. 

Contracts  limiting  liability  of  carrier,  see 
Carriers,  II.  m,  5;  II.  m,  6;  II.  o,  5; 
III.  g. 

Discriminatory  contracts  by  carrier,  see 
Carriers,  IV.  b,  IV.  c. 

Champertous  contract,  see  Champerty  and 
Maintenance. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  I.  b. 

Combination  to  injure  another's  business, 
see   Conspiracy,   III. 

Ultra  vires  contracts  of  corporations,  see 
Corporations,  IV.  d. 

Effect  of  duress,  see  Duress. 

Estoppel  to  deny  validity,  see  Estoppel, 
232. 

Presumptions  and  burden  of  proof  as  to, 
see  Evidence,  II.  k. 

Parol  evidence  that  written  contract  appar- 
ently good  was  mere  cover  for  illegal 
transaction,   see  Evidence,  900. 

Of  conveyance  of  expectancy,  see  Expectan- 
cies. 

Fraud  in  securing  contract,  see  Fraud  and 
Deceit. 

Of  married  woman's  contract,  see  Husband 
AND  Wife,  I.  b,  2. 

Of  contracts  between  husband  and  wife,  see 
Husband  and  Wife,  II.  e. 

Antenuptial  contract,  see  Husband  and 
Wife,  II.  i. 

Contracts  by  incompetent  person,  see  In- 
competent Persons,  IL 

Contracts  by  infants,  see  Infants,  I.  d,  2. 
Insurance  contracts,  see  Insurance,  III.  a. 

Assignment  of  insurance  policy,  see  Insur- 
ance, IV. 
Validity   of   marriage  contract,    see    Mar- 
riage, 2. 
Validity  of  mortgage,  see  Mortgages,  I.  d. 
By  officer  receiving  money  for  liquor  license 
to   return   it   if   license  is   refused,   see 
Officers,  79. 
Creating  perpetuities,  see  Perpetuities. 


CONTRACTS,  III.  b. 


645 


Necessity  of  pleading  invalidity,  see  Plead- 
ing, 483,  484. 

Contract  insuring  intoxicating  liquors,  see 
Pleading,  484. 

Of  receiver,  see  Receivebs,  24. 

Specific  performance  of  illegal  contract,  see 
Specific  Performance,  25-28. 

Validity  of  Sunday  contracts,  see  Sunday, 
IV. 

Usury  in  contract,  see  USUBY. 

See  also  infra,  681. 

405.  A  written  consent  by  a  man  to  the 
devise  by  his  wife  of  her  real  property  is 
valid  and  effectual,  though  given  in  furth- 
erance of  a  void  written  agreement  between 
husband  and  wife,  by  which  each,  in  tcFms, 
released  all  interest  in  the  other's  real 
property;  the  wife  having  performed  her 
part  of  the  agreement.  Erickson  v.  Robert- 
son, 37:  1 133,  133  N.  W.  164,  116  Minn.  90. 

406.  A  contract  by  the  holder  of  a  note 
to  sell  it  to  the  maker  at  a  specified  time 
before  maturity,  at  a  discount,  is  valid,  and 
upon  his  repudiation  of  the  agreement,  and 
attempt  to  enforce  payment  of  the  note  in 
full,  the  maker  may  set  off  his  damages 
represented  by  the  agreed  discount.  Bell  v. 
Pitman,  35:  820,  136  S.  W.  1026,  143  Ky. 
621.  (Annotated) 

407.  A  contract  with  a  private  water 
company  by  which  a  landowner  secures  a 
permanent  right  to  the  use  of  water  from 
the  company's  canal  for  irrigation  purposes 
is  valid  and  constitutes  the  measure  of 
rights  of  the  parties,  although  the  water 
right  has  become  a  public  use  within  the 
meaning  of  a  constitutional  provision  that 
the  use  of  water  appropriated  for  sale,  or 
rental,  or  distribution,  is  a  public  use,  the 
regulation  and  control  of  which,  including 
the  right  to  collect  compensation  therefor, 
is  in  the  state,  when  there  has  been  no  at- 
tempt to  regulate  or  control  the  use  of  such 
water.  Stanislaus  Water  Co.  v.  Bachman, 
15:  359,  93  Pac.  858,  152  Cal.  716. 

To   fnrnisli   burial   at   death. 

408.  A  contract  founded  upon  a  legal  con- 
sideration by  which  the  obligor  undertakes 
to  furnish  the  obligee,  or  one  of  the  lat- 
ter's  near  relatives,  a  burial  at  death,  rea- 
sonably worth  a  fixed  sum,  is  valid.  State 
V.  Willett,  23:  197,  86  N.  E.  68,  171  Ind. 
296.  (Annotated) 
EflPect  of  partial  invalidity. 

Effect  of  partial  invalidity  of  bill  of  lad- 
ing, see  Carriers,  745. 

Antenuptial  contract,  see  Husband  and 
Wife,  126. 

409.  An  illesral  stipulation  in  a  contract 
for  a  contingent  attorney's  fee,  to  the  effect 
that  the  client  shall  not  compromise  or  set- 
tle the  claim  without  the  consent  of  his 
attorney,  cannot  be  ignored,  and  the  other 
provisions  of  the  contract  enforced;  but 
the  contract  is  indivisible  and  wholly  il- 
legal. Davv  V.  Fidelity  &  C .  Ins.  Co. 
17:  443,  85  N.  E.  504,  78  Ohio  St.  256. 

410.  The  invalidity  in  a  contract  for  the 
transfer  and  pooling  of  corporate  stock  in 
consideration  of  a  loan  of  money  to  finance 
the  institution,  of  a  provision  which  re- 
Digest  1-52  I..R.A.(N.S.) 


tains  the  owner  in  the  board  of  directors 
and  gives  him  employment  as  the  sales 
agent  of  the  corporation,  does  not  neces- 
sarily invalidate  the  pooling  agreement. 
Winsor  v.  Commonwealth  Coal  Co.  33:63, 
114  Pac.  908,  63  Wash.  62. 

410a.  That  an  agreement  for  an  exclusive 
agency  for  a  certain  class  of  goods  is  illegal 
under  a  statute  prohibiting  contracts  in  re- 
straint of  trade  will  not  prevent  a  recover,' 
for  a  bill  of  goods  sold  under  it,  since  the 
agreement  to  pay  for  goods  purchased  and 
delivered  is  separable  from  that  governing 
the  exclusive  agency.  Packard  v.  Byrd, 
6:  547,  51  S.  E.  678,  73  S.  C.  1. 

(Annotated) 

411.  A  contract  to  install  a  telephone  ex- 
change in  a  hotel  and  furnish  connections 
with  the  system  of  the  contracting  party 
is  not  rendered  void  in  its  entirety  by  the 
invalidity  of  a  provision  that  the  right  to 
furnish  connections  with  the  hotel  shall  be 
exclusive.  Central  New  York  Teleph.  & 
Teleg.  Co.  v.  Averill,  3a:  494,  92  N.  E.  206, 
199  N.  Y.  128.  •      . 

6.  Illegal  by  express  provision. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Remedy  in  case  of,  see  infra,  570-583. 

Enforcement  of  note  given  in  payment  of 
property  sold  in  violation  of  statute,  see 
Bills  and  Notes,  222. 

By  railroad  to  issue  pass,  see  Carbiebs, 
1061,  1068. 

Forbidding  person  selling  goods  for  resale 
to  stipulate  that  purchaser  shall  not 
deal  in  goods  of  other  dealers,  see  Con- 
stitutional Law,  .499. 

Constitutionality  of  statute  restricting  right 
to  contract,  see  Constitutional  Law, 
II.  b,  4,  b,  2. 

Contracts  of  unauthorized  foreign  corpora- 
tion, see  Corporations,  430-442. 

Agreement  by  corporation  to  repurchase 
stock  sold,  with  interest  or  bonus,  see 
Cobporations,  80. 

Validity  of  Sunday  contracts,  see  Sunday, 
IV. 

Contract  to  resell  property  as  violation  of 
usury  law,  see  Usury,  15. 

See  also  supra,  410a. 

412.  The  sale  in  Jjulk  of  a  stock  of  drugs 
including  medicines  and  poisons,  is  not  ren- 
dered unlawful  by  a  statute  regulating  the 
sales  ol  medicines  and  poisons,  which  is 
expressly  limited  to  sales  at  retail.  Swisher 
V.  Dunn,  45:  810,  131  Pac.  571,  89  Kan. 
412. 

413.  A  contract  for  the  sale  of  a  drug 
store,  including  the  stock  and  business,  is 
not  rendered  unenforceable  by  the  fact  that 
the  business  had  at  all  times  been  con- 
ducted in  violation  of  the  law  requiring  the 
owner  or  some  employee  to  be  a  pharmacist 
or  assistant  pharmacist.  Swisher  v.  Dunn, 
45:  810,   131   Pac.   571,   89  Kan.   412. 

(Annotated) 

414.  A  contract  forbidden  by   a  revenue 


646 


CONTRACTS,  III.  c,  1. 


statute  or  ordinance  is  not  void  if  'it  is 
not  malum  in  se  nor  detrimental  to  good 
morals.  Ilughea  v.  Snell,  34:  1133,  115  Pac. 
1105,  28  Okla.  828. 

415.  A  contract  between  city  authorities 
and  the  owner  of  'property  not  exempted 
from  taxation  by  the  Constitution,  providing 
that  no  taxes  on  such  property  above  a  spe- 
cified amount,  which  is  less  than  the  amount 
of  taxes  due,  shall  be  collected  by  the  city, 
in  consideration  of  specified  benefits  and 
privileges  conferred  upon  the  city  by 
the  property  owner,  is  void  under  a  con- 
stitutional provision  that  all  laws  exempt- 
ing property  from  taxation  other  than 
property  exempted  in  the  Constitution  shall 
be  void,  although  the  city,  under  the  con- 
tract, may  receive  from  the  taxed  debtor 
benefits  which,  in  value,  exceed  the  amount 
of  the  taxes  due.  Tarver  v.  Dalton,  29:  183, 
67   S.   E.   929,   134  Ga.  462.        (Annotated) 

416.  A  contract  entered  into  between  co- 
partners upon  dissolution  of  the  copartner- 
ship, whereby  one  of  the  partners,  for  a 
valuable  consideration,  agrees  not  to  engage 
for  the  next  two  years  in  the  same  business 
theretofore  conducted  by  the  firm  in  the 
same  city,  is  not  violative  of  N.  D.  Const, 
art.  1,  p.  23,  which  provides  that  any  citizen 
of  the  state  shall  be  free  to  obtain  employ- 
ment wherever  possible,  and  that  any  per- 
son who  shall  maliciously  interfere  there- 
with or  hinder  any  citizen  from  obtaining 
employment  shall  be  deemed  guijty  of  a 
misdemeanor.  Siegel  v.  Marcus,  20:  769, 
119  X.  W.  358,  18  N.  D.  214. 

Time  of  payment  of  wages. 

417.  A  contract  between  employer  and 
emploj'ee  providing  for  payment  of  wages  at 
longer  intervals  than  semimonthly  is  void 
where  the  statute  requires  payment  at  such 
intervals.  Arkansas  Stave  Co.  v.  State, 
27:  255,  125  S.  W.  1001,  94  Ark.  27. 

418.  A  contract  for  payment  of  wages  of 
railroad  employees  otherwise  than  semi- 
monthly and  in  cash  is  Void  where  the  stat- 
ute makes  such  companies  liable  to  crimi- 
nal prosecution  for  failure  to  pay  at  such 
time  and  in  such  manner.  New  York,  C.  & 
H.  R,  R.  Co.  V.  Williams,  35:  549,  92  N.  E. 
404,  199  N.  Y.  108. 

Services   of   unlicensed   persons. 

EflFect  of  failure  to  obtain  license  for  auto- 
mobile on  liability  for  injuries,  see 
Automobiles,  28,  28a. 

Rights  of  transferee  of  note  given  in  pay- 
ment of  service  of*  nonlicensed  person, 
see  Bills  and  Notes,  375. 

419.  A  physician  duly  licensed  in  the 
state  where  the  contract  is  made  cannot  be 
deprived  of  the  benefit  of  the  contract  to 
furnish  medical  attendance  to  a  patient  by 
the  fact  that  he  temporarily  accompanies 
the  patient  into  a  state  where  he  has  no 
license  and  performs  some  services  for  the 
patient  there.  Re  McVicker,  28:  11 12,  91 
N.  E.  1041,  245  111.  180. 

420.  The  contract,  by  one  having  no 
license  to  practise  medicine,  who  is  conduct- 
ing a  medical  institute,  on  behalf  of  him- 
self and  the  institute,  which  is  owned,  op- 
erated, and  controlled  bv  him,  to  render 
Digest  1-52  L.R.A.(N.S.) 


medical  services  to  another,  is  absolutely 
void,  although  he  employs  regularly  li- 
censed physicians  for  the  perfoiinance  of 
his  engagements.  Deaton  v.  Lawson,  2: 
392,   82   Pac.   879,   40   Wasli.   486. 

(Annotated) 

421.  A  note  executed  in  payment  of  pro- 
fessional services  rendered  by  one  without 
a  license  to  practise  medicine  is,  where  prac- 
tice without  a  license  is  forbidden  by  stat- 
ute, unenforceable  in  the  hands  of  tlie  payee. 
State  Bank  v.  Lawrence,  42:  326,  96  N.  E. 
947,  177  Ind.  515. 

422.  A  real-estate  broker  is  not  deprived 
of  the  right  to  commissions  by  the  fact  that 
he  had  no  license,  although  the  ordinance 
made  payment  of  a  license  fee  for  revenue 
purposes  a  condition  to  conducting  such 
business,  and  made  violations  of  the  ordi- 
nance a  misdemeanor.  Hughes  v.  Snell,  34: 
1133,  115  Pac.  1105,  28  Okla.  828. 

423.  The  business  of  a  real-estate  agent 
is  not  within  the  letter  of  an  ordinance  im- 
posing a  license  tax  upon  the  business  of 
"real  estate,"  which  was  passed  under  statu- 
tory authority  to  impose  a  license  tax  upon 
real-estate  agents,  and  therefore  the  con- 
tract of  an  agent  to  find  a  purchaser  for 
real  estate  will  not  be  held  void  and  unen- 
forceable because  of  his  failure  to  obtain  a 
license.  Manker  v.  Tough,  19:  675,  98  Pac. 
792,  79  Kan.  46. 

424.  The  contracts  of  a  pawnbroker  who 
attempts  to  carry  on  his  business  without  a 
license  and  without  complying  with  the  re- 
quirements of  statutes  and  ordinances  as  to 
recording  the  contracts,  noncompliance  with 
which  is  made  a  misdemeanor,  are  void  and 
he  can  claim  no  lien  upon  the  pledges.  Levi- 
son  V.  Boas,  12:  575,  88  Pac.  825,  150  Cal. 
185.  (Annotated) 

C.  Public  policy. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Proceedings  and  remedy  in  case  of,  see  infra, 
HI.  g,  2. 

As  to  contracts  in  restraint  of  trade,  see 
infra,  III.  e. 

As  to  bills  and  notes,  see  Bills  and  Notes, 
17-19. 

As  to  bills  and  notes  in  hands  of  transferees, 
see  Bills  and  Notes,  154-156. 

Illegal  consideration  as  defense  in  action 
on  note,  see  Bills  and  Notes,  221, 
222. 

Validity  of  stipulation  in  corporate  bond  for 
exemption  of  stockholders  from  liabil- 
ity, see  Bonds,  72. 

Accumulation  and  division  by  bridge  com- 
pany, among  portion  of  railroads  using 
it,  of  fund  resulting  from  excessive 
tolls,  see  Bridge  Company. 

Contract  for  transportation  of  livestock,  see 
Carbiebs,  887. 

Discriminatory  contracts  by  carrier,  see 
Carriers,  IV.  b ;  IV.  c. 


CONTRACTS,  III.  c,  1. 


647 


Right  of  third  person  to  maintain  action  for 
injury  caused  by  agreement  opposed  to 
public  policy,  see  Case,  8. 

Champertous  contracts,  see  Champebty 
AND  Maintenance. 

By  municipality  with  councilmen  for  mer- 
chandise; common-law  rule  as  to  va- 
lidity of,  see  Common  Law,  7. 

EflFect  of  public  policy  on  enforcement  of 
contract  of  other  state,  see  Conflict 
OF  Laws,  8-17. 

Combination  to  injure  another's  business, 
see  Conspiracy,  III. 

Voting  trust  agreement,  see  Corporations, 
377,  378,  380-382. 

Contracts  of  corporate  officers  in  their  own 
interests,  see  Corporations,  IV.  g. 

Employment  by  county  of  private  person  to 
render  services  in  aid  of  collection  of 
taxes,  see  Counties,  33. 

Validity  of  attempt  by  heirs  to  convey  in- 
terest in  ancestor  s  estate  during  his 
lifetime,  see  Covenants  and  Condi- 
tions, 21. 

Validity  of  covenant,  see  Covenants  and 
Conditions,  28. 

Separation  agreement,  see  Divorce  and 
Separation,  VIII.  b. 

Antenuptial  contract,  see  Husband  and 
Wife,  II.  i. 

Agreement  between  banks  for  suppression  of 
bidding  for  public  money,  see  Public 
Money,  2-4. 

Contracts  made  on  Sunday,  see  Sunday, 
IV. 

Question  for  court  whether  means  employed 
by  labor  union  are  against  public  poli- 
cy, see  Trial,  601. 

Finding  that  contract  is  void  as  one  of  law, 
see  Trial,  1097. 

Contract  suspending  power  of  municipality 
to  regulate  water  rates,  see  Waters, 
410-413. 

See  also  supra,  74;  infra,  779. 

425.  The  question  whether  or  not  a  con- 
tract is  against  public  policy  must  be  de- 
termined by  its  purpose  and  tendency,  and 
not  by  the  fact  that  no  harm  in  fact  re- 
sults from  it.  White  v.  McMath  &  John- 
ston, 44:  II 15,  156  S.  W.  470,  127  Tenn.  713. 

426.  A  contract  should  not  be  declared  to 
be  in  contravention  of  public  policy  unless 
it  is  apparent  that  it  contravenes  some  pub- 
lic statute,  or  is  against  good  morals,  or 
that  its  tendency  is  to  interfere  with  the 
public  welfare  or  safety.  McCowen  v.  Pew, 
21:  800,  96  Pac.  893,  153  Cal.  735. 

427.  In  determining  the  public  policy  of 
a  state,  courts  are  limited  to  a  con- 
sideration of  the  statutes,  Constitution,  ju- 
dicial decisions,  and  practice  of  government 
officers.  Re  McVicker,  28:  1112,  91  N.  E. 
1041,  245  111.   180. 

428.  A  contract  cannot  be  declared  void 
because,  in  its  performance,  one  of  the  par- 
ties could  or  might  employ  improper  means 
or  agencies.  Cole  v.  Erown-Hurley  Hard- 
ware Co.  18:  1 161,  117  N.  W.  746,  139  Iowa, 
487. 

429.  A  contract  by  a  railroad  company 
attempting  to  give  an  exclusive  right  to  use 
Digest   1-52  I,.R.A.(N.S.) 


its  box  cars  for  advertising  purposes  is 
against  public  policy,  where  the  statute  pro- 
vides that  it  shall  be  unlawful  for  any 
transportation  company  to  give  any  undue 
advantage  to  any  particular  person  or  cor- 
poration in  any  respect  whatever.  National 
Car  Advertising  Co.  v.  Louisville  &  N.  R. 
Co.  24:  loio,  66  S.  E.  88,  110  Va.  413. 

(Annotated) 

430.  Under  a  statute  permitting  the 
selection  of  statutory  exemptions  to  be 
made  by  the  debtor  or  his  "authorized 
agent,"  a  mortgage  of  such  exemptions,  giv- 
ing the  mortgagee  the  right  to  make  the 
selection,  is  not  against  public  policy.  Re 
National  Grocery  Co.  30:  982,  181  Fed.  33, 
104   C.   C.   A.   47.  (Annotated) 

431.  A  contract  between  a  man  and  his 
stepmother,  who  is  living  apart  from  his 
father  for  cause  sufficient  to  entitle  her  to 
a  divorce,  that,  if  she  will  return  to  and 
care  for  her  husband  during  his  natural 
life,  the  stepson  will  support  her  so  long 
as  she  shall  live,  is  not  against  public 
policy.  Mack  v.  Mack,  31:  441,  128  N.  W. 
527,   87   Neb.    527.  (Annotated) 

432.  One  who,  to  secure  the  money  with 
which  to  procure  the  return  of  stolen  prop- 
erty, is  obliged  to  indorse  the  check  of  the 
owner,  may,  if  he  is  compelled  to  make 
good  the  amount  upon  the  owner's  stopping 
payment  of  the  check,  recover  the  sum  so 
paid  from  the  owner,  since  the  payment  of 
money  to  secure  the  return  of  stolen  prop- 
erty violates  no  rule  of  law  and  such  a 
transaction  is  therefore  legal  and  binding. 
Schirm  v.  Wieman,  7:  175,  63  Atl.  1056,  103 
Md.   541.  (Annotated) 

433.  A  contract  by  one  injured  by  an- 
other's negligence,  to  pay  his  physician  a 
percentage  of  the  amount  recovered  against 
the  one  responsible  for  the  injury,  for  his 
services  in  treating  the  injury,  is  against 
public  policy  and  void  where  the  parties 
contemplate  that  the  physician  shall  be  a 
witness  for  his  employer  in  case  suit  is 
necessarv.  Sherman  v.  Burton,  33:  87,  130 
N.  W.  667,   165  Mich.  293.  (Annotated) 

434.  A  contract  to  pay  one  who  has  made 
an  offer  for  real  estate  at  private  sale,  to 
stand  aside  and  permit  its  purchase  by 
the  other  contracting  party,  is  not  void 
as  against  public  policy.  White  v.  Mc- 
Math &  Johnston,  44:  11 15,  156  S.  W.  470, 
127  Tenn.  713.  (Annotated) 

435.  A  contract  between  an  adult  man 
and  woman,  not  related  to  each  other,  "that, 
if  the  latter  will  enter  the  home  of  the 
former  and  act  as  his  housekeeper,  he  will 
support  her,  and  at  his  death  leave  her  his 
estate,  is  not,  where  the  relations  between 
them  are  at  all  times  moral  and  proper, 
forbidden  by  law  or  obnoxious  to  public 
policv.  Goff  V.  Supreme  Lodge  Royal 
Achates,  37:  1191,  .134  N.  W.  239,  90  Neb. 
578. 

436.  An  agreement  made  by  a  person  in 
anticipation  of  his  appointment  to  the  of- 
fice of  county  treasurer,  that  he  will  devote 
and  apply  all  the  fees,  salary,  and  emolu- 
ments of  the  office,  in  excess  of  a  stipulat- 
ed amount,  to  the  payment  and  discharge  of 


G48 


CONTRACTS,  III.  c,  1. 


certain  obligations  on  which  he  bnd  others 
are  jointly  liable,  if  they  will  become  sure- 
ties on  his  oflicial  bond,  is  contrary  to  pub- 
lic policy.  Serrill  v.  Wilder,  14:  982,  83  N. 
E.  486,  77  Ohio  St.  343. 

437.  An  entire  partnership  contract  be- 
tween attorneys  at  law  is  vitiated  by  a 
provision  that  the  salary  of  one  of  them  as 
prosecuting  attorney  will  be  divided  be- 
tween the  partners.  Anderson  v.  Bran- 
strom,  43:  422,  139  N.  W.  40,  173  Mich.  157. 

438.  A  contract  between  the  parties  to  a 
proceeding  to  establish  the  validity  of  one 
or  the  other  of  two  wills,  that,  whichever  of 
the  wills  should  be  upheld  by  the  court, 
their  costs  should  be  paid  out  of  the  estate, 
whether  the  court  should  so  order  or  not,  is 
not  illegal  as  being  against  the  policy  of 
the  law  in  that  it  tends  to  affect  the  ad- 
ministration of  justice.  Prince  v.  Haworth, 
2  B.  R.  C.  629,  [1905]  2  K.  B.  768.  Also 
Reported  in  92  L.  T.  N.  S.  773,  21  Times  L. 
R.  402,  75  L.  J.  K.  B.  N.  S.  92,  54  Week. 
Rep.  249.  (Annotated) 

439.  The  court  rule  providing  that  the 
costs  occasioned  by  any  unsuccessful  claim 
or  unsuccessful  resistance  to  any  claim  to 
any  property  shall  not  be  paid  out  of  the 
estate  unless  the  judge  otherwise  orders, 
does  not  affect  the  validity  of  an  agreement 
by  parties  that  their  costs  shall  in  any 
event  be  paid  out  of  the  estate.  Prince  v. 
Haworth,  2  B.  R.  C.  629,  [1905]  2  K.  B. 
768.  Also  Reported  in  92  L.  T.  N.  S.  773, 
21  Times  L.  R.  402,  75  L.  J.  K.  B.  N.  S. 
92,  54  Week.  Rep.  249. 

Agent  acting  for  both  parties. 

440.  If  an  agent  acts  for  both  parties  in 
making  a  contract  requiring  the  exercise 
of  discretion,  the  contract  is  contrary  to 
public  policy,  and  voidable  in  equity  upon 
the  application  of  either  party.  Horner 
V.  Spencer,  17:  622,  95  Pac.  757,  21  Okla. 
155.  (Annotated) 
To  oust  conrts  of  jurisdiction. 

441.  An  unexecuted  agreement  to  arbi- 
trate all  disputes  which  shall  arise  in  the 
execution  of  a  contract  both,  as  to  liability 
and  loss,  is  no  bar  to  a  suit  upon  the  con- 
tract, since  it  is  void  as  an  attempt  to  oust 
the  courts  of  their  jurisdiction.  Williams 
V.  Branning  Mfg.  Co.  47 :  337,  70  S.  E.  290, 
154  N.  C.  205.  (Annotated) 
Insurance  contracts. 

Provision  for  arbitration  in  policy,  see  In- 
SUBANCE,   651. 

Unauthorized  contracts  by  foreign  insurance 
company,  see  Insurance,  20,  21. 

Insuring  life  in  favor  of  one  without  in- 
surable interest,  see  Insurance,  II.  b. 

Policy  in  adopted  name  of  applicant,  see 
Insurance,  85. 

Insurance  on  property  in  house  of  ill  fame, 
see  iNSxniANCE,  92. 

Provision  as  to  incontestability  of  insur- 
ance policy,  see  Insurance,  III.  e,  2,  f. 

Validity  of  contract  insuring  intoxicating 
liquors,  see  Pleading,  484. 

442.  Requiring  the  establishment  of  the 
accidental  nature  of  an  injury  by  a  gun- 
shot wound  before  liability  attaches  there- 
for under  an  accident  policy  is  not  against 
Digest  1-52  I<.R.A.(N.S.) 


public  policy  as  an  attempt  to  modify  or 
control  the  procedure  of  courts  of  justice. 
Koch  V.  Business  Men's  Protective  Asso. 
51:  221,  145  N.  W.  479,  164  Iowa,  199. 

( Annotated ) 

443.  A  contract  requiring  the  return  of  a 
life  insurance  policy,  duly  receipted,  within 
six  months  after  default  in  payment  of  ])re- 
miums,  to  entitle  the  holder  to  a  paid-up 
policy  for  a  proportionate  amount,  and  pro- 
viding that,  if  tliis  is  not  done,  the  policy 
shall  cease  and  all  premiums  paid  thereon 
be  forfeited,  is  not  forbidden  by  public  pol- 
icy. CoUman  v.  Equitable  L.  Assur.  Soc. 
8:  1019,  110  N.  W.  444,  133  Iowa,  177., 

444.  Public  policy  does  not  avoid  a  con- 
tract of  insurance  on  furniture  used  in  keep- 
ing a  house  of  prostitution-  Conithan  v. 
Royal  Ins.  Co.  18:  214,  45  So.  361.  91  Miss, 
386.  (Annotated) 
Condition  on   theater  ticket. 

445.  A  condition  upon  a  theater  ticket 
that  the  ticket  will  not  be  honored  if  sold 
on  the  sidewalk  is  not  against  public  policy. 
Collister  v.  Hayman,  i:  1188,  76  N.  E.  20, 
183  N.  Y.  250.  (Annotated) 
To  assign  future   inventions. 

446.  An  agreement  to  assign  to  the  p>ur- 
chaser  of  a  patent  future  inventions  re- 
lating thereto  is  not  against  public  policy. 
Reece  Folding  Mach.  Co.  v.  Fenwick,  2': 
1094,  140  Fed.  287,  72  C.  C.  A.  39. 

(Annotated) 
To  indemnify  surety. 

447.  An  undertaking  by  a  brewing  com- 
pany to  indemnify  a  surety  on  the  bond  of 
one  retailing  its  product  is  not  void  as 
against  public  policy.  Timm  v.  Grand  Rap- 
ids Brewing  Co.  27:  186,  125  N.  W.  357, 
160  Mich.  371. 

448.  A  bond  of  indemnity,  given  by  a  per- 
son under  charge  of  felony,  to  indemnify 
his  bail  in  a  recognizance  for  his  appear- 
ance to  answer  the  charge,  is  not  void  as 
against  public  policy.  Carr  v.  Davis,  20: 
58,  63  S.  E.  326,  64  W.  Va.  522.  (Annotated) 
Assignment   of   action   for   assault. 

449.  An  assignment  before  judgment  of 
an  action  for  assault  and  battery  and  false 
imprisonment  is  void,  as  against  public  pol- 
icy. Tyler  v.  Superior  Court,  23:  1045,  73 
Atl.  467,  30  R.  I.  107. 

To  furnish  medical  attendance  during 
life. 

450.  A  contract  to  furnish  one  medical 
attendance  during  life  for  a  lump  sum  pay- 
able at  his  death  is  not  void  as  against 
public  policy,  either  because  furnishing  an 
inducement  to  threaten  his  life  or  as  a 
wagering  contract.  Re  McVicker,  28:  11 12, 
91  N.  E.  1041,  245  111.  180. 

To     institute     moTcment     for     recall 

election. 
See  also  infra,  608.  •"^'     ''' 

451.  A  contract  employing  an  agent  to  in- 
stitute and  carry  out  a  movement  for  a 
recall  election  against  certain  officers,  with- 
out disclosing  the  true  motives  and  real 
parties  behind  the  movement,  and  undertak- 
ing to  pay  necessary  expenses  therefor,  is 
contrary  to  public  policy  and  void.    Stirtan 


CONTRACTS,  III.  c,  1. 


649 


V.  Bethen,  51:  623,  139  Pac.  618,  79  Wash. 

10. 

Te  exempt  property  from  assessment. 

452.  A  municipal  corporation  cannot  con- 
tract to  exempt  an  owner  of  property  abut- 
ting on  a  portion  of  a  proposed  street 
improvement,  from  assessment  for  the  im- 
provement, in  consideration  of  his  donating 
land  necessary  for  the  enterprise  and  bring- 
ing the  street  adjoining  his  property  to 
grade  at  his  own  expense.  H.  S.  Turner 
Invest.  Co.  V.  Seattle,  41:  781,  126  Pac.  426, 
70  Wash.  201.  (Annotated) 
To  secure  names  to  petition  for  pub- 
lic   improvements. 

453.  An  agreement  by  a  highway  con- 
tractor to  pay  those  who  petitioned  for  the 
improvement  and  undertook  to  pay  10  per 
cent  of  its  cost,  all  that  portion  of  said 
10  per  cent  which  exceeds  a  specified 
amount,  in  consideration  of  certain  privi- 
leges with  respect  to  the  use  of  their  land 
during  performance  of  the  work,  is  void 
as  against  public  policy,  where  such  agree- 
ment became  necessary  to  enable  the  pe- 
titioners to  secure  the  10  per  cent  to  make 
the  improvement  possible.  Walsh  v.  Hib- 
berd,  50:  396,  89  Atl.  396,  122  Md.  168. 

( Annotated ) 
Not    to    snpply    quotations    to    bucket 
sbop. 

454.  A  provision  in  a  contract  under 
which  continuous  quotations  are  sold  by  a 
board  of  trade  to  a  telegraph  company, 
that  they  shall  not  be  supplied  to  any- 
one running  a  bucket  shop,  is  valid.  West- 
ern U.  Teleg.  Co.  v.  State  ex  rel.  Ham- 
mond Elevator  Co.  3:  153,  76  N.  E.  100,  165 
Ind.  492. 

As    to    communistic    tenure    of    prop- 
erty. 

455.  The  agreement  expressed  in  the  con- 
stitution of  a  monastic  brotherhood  incor- 
porated by  special  act,  that  the  gains  and 
acquisitions  of  members  shall  belong  to  the 
Order,  is  not  opposed  to  public  policy,  where 
the  constitution  expressly  recognizes  the 
privilege  of  withdrawal;  and  the  Order  is 
therefore  entitled  to  all  the  personal  prop- 
erty left  by  a  deceased  member,  including 
that  derived  from  his  literary  labors.  Order 
of  St.  Benedict  v.  Steinhauser,  52:  459,  34 
Sup.  Ct.  Rep.  932,  234  U.  S.  640,  58  L.  ed. 
1512.  (Annotated) 
Contract   by   guardian. 

See  also  Evidence,  1526,  1622. 

456.  An  agreement  between  a  guardian 
and  his  surety,  under  which  the  funds  of 
the  ward  are  deposited  in  a  bank,  and  an 
interest-bearing  certificate  of  deposit  is  is- 
sued, payable  to  the  order  of  the  surety,  but 
is  retained  by  the  guardian  upon  an  under- 
standing between  him  and  the  surety  that 
no  part  of  the  fund  shall  be  withdrawn  from 
the  bank  except  upon  the  joint  check  or 
indorsement  of  both  the  guardian  and 
surety,  has  the  effect  to  surrender  in  part 
the  custody  and  control  of  the  ward's  fund 
to  another  than  the  guardian  appointed  by 
law,  and  to  put  it  beyond  the  power  of  the 
guardian  to  withdraw  the  fund  in  case  of 
an  emergency,  and  is  contrary  to  public 
Digest   1-52  L.R,A.(N.S.) 


policy.    Fidelity  &  D.  Co.  v.  Butler,  16:  994, 
60  S.  E.  851,  130  Ga.  225.  (Annotated) 

By    corporate    officer    generally. 

Demurrer  to  petition  in  action  to  enforce, 

see  Pleading,  654. 
See  also  infra,  507. 

457.  A  note  made  payable  to  a  director  or 
officer  of  a  railroad  company  in  his  personal 
capacity  and  for  his  pefSonal  benefit,  on 
condition  that  a  railroad  shall  be  built  to 
a  certain  point  by  a  certain  time,  is  void 
as  against  public  policy,  and  no  recovery 
can  be  had  thereon.  McGuffin  v.  Coyle, 
6:  524,  85  Pac.  954,  16  Okla.  648. 

(Annotated) 

458.  A  contract  to  pay  for  the  construc- 
tion of  a  building  does  not  become  enforce- 
able against  a  corporation  because  it  is  exe- 
cuted by  its  president  under  its  corporate 
seal,  if  a  large  bonus  in  addition  to  the 
amount  of  the  bid  is  included  in  the  con- 
tract price,  which  is  to  be  divided  between 
such  president  and  the  contractor  and  its 
representatives,  even  as  to  extra  work  after 
the  price  named  in  the  contract  has  been 
paid,  where,  under  the  statutes  of  the  state, 
such  conduct  on  the  part  of  the  president 
is  a  misdemeanor.  Standard  Lumber  Co. 
V.  Butler  Ice  Co.  7:  467,  146  Fed.  359,  76 
C.  C.  A.  39.  (Annotated) 
Contract     ^vith     employee      or     labor 

union. 

Obligating  employer  to  retain  in  his  em- 
ploy no  one  objectionable  to  labor 
union,  see  Case,  34. 

See  also  infra,  499-502,  617. 

459.  A  contract  by  which  one  undertakes 
for  a  contingent  fee  to  detect  larceny  or  em- 
bezzlement among  the  employees  of  his  em- 
ployer, and  apprehend  persons  accused  and 
bring  them  before  the  employer,  with  proof 
that  the  stolen  property  is  in  their  posses- 
sion, is  void  as  contrary  to  public  policy. 
Manufacturers'  &  M.  Inspection  Bureau  v. 
Everwear  Hosiery  Co.  42:  847,  138  N.  W. 
624,  152  Wis.  73.  (Annotated) 

460.  A  contract  made  by  a  railroad  com- 
pany to  give  an  injured  employee,  in  set- 
tlement of  his  claim,  employment  as  long 
as  he  lives  and  proves  a  competent  and 
worthy  man,  and  if  he  is  thrown  out  of 
employment  to  pay  him  his  salary  as  long 
as  he  lives,  unless  he  has  been  discharged 
for  neglect  of  duty  or  dissipation,  is  not 
against  public  policy  as  tending  to  impair 
the  efficiency  of  a  public  service  corpora- 
tion by  restricting  its  future  management. 
Cox  v.  Baltimore  &  0.  S.  W.  R.  Co.  50: 
453,  103  N.  E.  337,  180  Ind.  495. 

(Annotated) 

461.  An  employer  and  employee  may  stip- 
ulate to  arbitrate  the  extent  of  injury  or 
disability  caused  by  a  personal  injury  to 
the  employee  in  the  performance  of  his 
duties,  if  the  question  as  to  the  fundamental 
rights  of  the  parties  as  to  recovery  is  left 
open  to  the  courts.  Borgnis  v.  Falk  Co. 
37:  489,  133  N.  W.  209,  147  Wis.  327. 

462.  A  contract  by  a  manufacturer  to 
employ  as  laborers  none  but  members  of  a 
particular     labor     union     is     not    void    as 


650 


CONTRACTS,  III.  c,  1. 


against  public  policy.     Jacobs  v.  Cohen,  2: 
292,  76  N.  E.  5,  183  N.  Y.  207. 

(Annotated) 

463.  That  an  agreement  between  em- 
ployers and  a  labor  union,  that  noue  but 
union  labor  shall  be  employed,  has  on  the 
whole  been  beneficial  to  the  community, 
does  not  establish  its  conformance  with  pub- 
lic policy.  Coni*)r8  v.  Connolly,  45:  564,  86 
Atl.  600,  86  Conn.  641. 

464.  An  agreement  between  employers  and 
a  labor  union  that  none  but  members  of  the 
union  shall  be  employed  is  against  public 
policy  where  it  takes  in  an  entire  industry 
of  considerable  proportions  in  a  community, 
so  that  it  will  operate  generally  in  that 
community  to  prevent  or  seriously  deter 
craftsmen  from  working  at  their  craft,  or 
workingmen  entering  employment  under 
favorable  conditions,  without  joining  the 
union.  Connors  v.  Connolly,  45:  564,  86  Atl. 
600,  86  Conn.  641.  (Annotated) 
With  attorney. 

Presumption  that  woman  will  perform  in- 
valid contract  to  share  alimony  with  at- 
torney, see  Appeal  and  Error,  439. 

Contract  for  contingent  attorney's  fee,  see 
Attorneys,  60;  Champebty  and  Main- 
tenance, 7. 

As  to  champertous  contract,  see  Champerty 
AND  Maintenance,  II. 

See  also  supra,  409;  infra,  515,  616,  610- 
612. 

465.  A  contract  by  an  attorney  to  secure 
the  suspension  for  a  specified  time,  of  a 
statute  prohibiting  the  sale  of  intoxicating 
liquor,  is  void,  and  he  cannot  recover  the 
agreed  compensation  for  so  doing,  although 
the  only  acts  performed  by  him  were  the 
perfectly  legal  ones  of  agreeing  to  defend 
any  prosecution  brought  under  the  statute. 
Arlington  Hotel  Co.  v.  Ewing,  38:  842,  1.38 
S.  W.  954,  124  Tenn.  536.  (Annotated) 

466.  An  agreement  by  a  woman  to  pay 
her  attorney  a  percentage  of  the  alimony 
recovered  in  a  suit  for  divorce  against  her 
husband  is  void  as  against  public  policy. 
McConnell  v.  McConnell,  33:  1074,  136  S.  W. 
931,   98   Ark.    193.  (Annotated) 

467.  A  provision  in  a  contract  by  an  at- 
torney to  conduct  litigation  for  a  contin- 
gent compensation,  forbidding  the  client  to 
settle  the  claim  without  his  consent,  is  void 
as  against  public  policy.  Re  Snyder,  14: 
iioi,  82  N.  E.  742,  190  N.  Y.  66. 

( Annotated ) 

468.  A  provision  in  an  agreement  between 
a  client  and  his  attorneys  for  the  services 
of  the  latter  in  conducting  a  proposed  law- 
suit, that  the  client  shall  not  settle,  compro- 
mise, or  otherwise  dispose  of  the  cause  of 
action  without  the  written  consent  of  the 
attorneys,  is  contrary  to  public  policy  and 
void.  Kansas  Citv  Elev.  R.  Co.  v.  Service, 
14:  1 105,  94  Pac.  262,  77  Kan.  316. 

469.  A  contract  by  a  client  not  to  settle 
a  suit  without  the  consent  of  the  attorney 
being  against  public  policy,  a  complaint 
seeking  to  enjoin  a  breach  of  such  agree- 
ment does  not  state  a  cause  of  action. 
Jackson  v.  Stearns,  5:  390,  84  Pac.  798,  48 
Or.  25. 

Digest  1-52  L.R.A.(N.S.) 


470.  Courts  will  not  enforce  contracts  se- 
cured by  an  attorney  by  visiting  the  scene 
of  a  disaster  in  which  many  persons  were 
killed  and  wounded,  and  soliciting  employ- 
ment for  the  bringing  of  actions  against  the 
one  responsible  for  the  injury  from  stran- 
gers to  himself  for  a  percentage  of  the  re- 
covery, so  far  as  to  hold  defendant  liable 
for  the  fees  in  case  he  effects  a  settlement 
of  the  actions  without  the  consent  of  such 
attorney.  Ingersoll  v.  Coal  Creek  Coal  Co. 
9:  282,  98  S.  W.  178,  117  Tenn.' 263. 

(Annotated) 

471.  A  contract  between  a  layman  and  a 
lawyer,  by  which  the  former  undertakes 
and  agrees,  in  consideration  of  a  division  of 
the  fees  received  by  the  latter,  to  hunt  up 
and  bring  to  the  attorney  persons  having 
causes  of  action  against  railroad  companies 
for  personal  injuries,  is  contrary  to  public 
policy,  and  void.  Holland  v.  Sheehan,  23: 
510,  122  N.  W.  1,  108  Minn.  362. 
A£Fecting;  marriage  relation. 
Marriage  contract  at  time  when  husband  is 

married  to  another  person,  see  Bigamy, 

1. 
As  to  bills  and  notes,  see  Bills  and  Notes, 

17. 
Promise  of  marriage  by  married  man,   see 

Breach  of  Promise,  2. 
Separation    agreement,    see    Divorce    and 

Separation,  VIII.  b. 
Provisions  in  wills,  see  Wills,  273-285. 
See  also  infra,  613. 

472.  Restraints  upon  marriage  which  are 
not  general,  but  merely  temporary  or  other- 
wise limited  in  their  efiect,  are  not  illegal 
unless  unreasonable  in  extent.  Crowder- 
Jones  v.  Sullivan,  4  B.  R.  C.  56,  9  Ont.  L. 
Rep.  27.  (Annotated) 

473.  Where  a  widower,  a  farmer  sixty- 
seven  years  of  age,  with  a  young  daughter, 
promised  his  housekeeper,  a  woman  of  twen- 
ty-eight or  thirty,  who  had  been  some  time 
HI  his  service,  and  who  was  then  intending 
marriage,  that  if  she  did  not  get  married, 
but  would  stay  with  him  as  long  as  he 
needed  her,  he  would  either  give  her  $1,000 
in  cash,  his  promissory  note  for  $1,500,  or 
remember  her  in  his  will,  a  note  for  $1,500, 
given  three  years  later,  is  not  invalid  as 
based  upon  an  agreement  in  general  re- 
straint of  marriage,  the  restraint  being 
temporary,  and,  under  all  the  circumstances, 
reasonable.  Crowder-Jones  v.  Sullivan,  4 
B.  R.  C.  56,  9  Ont.  L.  Rep.  27. 

474.  It  is  not  essential  to  the  validity  of 
a  condition  requiring  the  consent  of  named 
persons  to  a  marriage,  that  its  operation 
be  confined  to  a  marriage  under  twenty-one. 
Re  Whiting's  Settlement,  4  B.  R.  C.  10, 
[1905]  1  Ch.  96.  Also  Reported  in  21 
Times  L.  R.  83.  (Annotated) 

475.  A  promise  by  a  man  to  an  unmar- 
ried woman,  that  if  she  continued  in  his 
employ  and  cared  for  his  wants  until  his 
death,  and  did  not  marry  until  after  his 
death,  his  executor  would  then  pay  her  a 
specified  sum,  is  void  as  an  agreement  in 
general  restraint  of  marriage.  Imwq  v. 
Doremus  (N.  J.  Err.  &  App.)  49:632,  87 
Atl.  459,  84  X.  J.  L.  658.  (Annotated) 


CONTRACTS,  III.  c,  1. 


651 


476.  A  provision  in  an  antenuptial  con- 
tract by  which,  in  consideration  of  the  con- 
templated marriage  and  the  release  by  the 
intended  husband  of  all  his  rights  and  in- 

1  terests  in  and  to  the  property  and  estate  of 
the  intended  wife,  she  agrees  to  bestow  upon 
him  from  her  estate,  after  her  death,  a  spec- 
ified annual  income  so  long  as  he  shall  re- 
main unmarried,  is  not  void  as  a  condition 
in  restraint  of  marriage,  but  merely  limits 
the  duration  of  the  income,  which  is  termi- 
nable at  the  voluntary  election  of  the  hus- 
band. Re  Appleby's  Estate,  lo:  590,  111  N. 
W.  .305,  100  Minn.  408. 

477.  An  antenuptial  contract  securing  the 
payment  of  a  specified  annual  income  to  the 
intended  husband  after  the  death  of  the  in- 
tended wife,  and  so  long  as  he  shall  remain 
unmarried,  provided  that  the  parties  are, 
at  the  time  of  the  death  of  the  wife,  living 
and  cohabiting  together  as  husband  and 
wife,  is  not  void  as  tending  to  induce  a  sep- 
aration between  husband  and  wife.  Re  Ap- 
pleby's Estate,  10:  590,  111  N.  W.  305,  100 
Minn.  408. 

478.  A  provision  in  a  contract  by  persons 
between  whom  divorce  proceedings  are  pend- 
ing because  of  the  husband's'  misconduct, 
which  is  intended  to  effect  a  reconciliation 
and  dismissal  of  the  proceedings,  to  the 
effect  that,  in  case  the  husband  should  so 
conduct  himself  as  to  give  the  wife  a  new 
cause  of  action  for  divorce,  he  would  pay 
her  a  sum  which  is  less  than  his  yearly 
net  income,  in  full  satisfaction  of  all  claims 
against  his  estate,  is  void  as  contrary  to 
public  policy.  Pereira  v.  Pereira,  23:  880, 
103  Pac.  488,  156  Cal.  1.  (Annotated) 

479.  A  contract  to  make  compensation  for 
services  to  be  rendered  in  obtaining  evi- 
dence and  securing  a  divorce  for  the 
promisor  is  void.  Barngrover  v.  Pettigrcw, 
2:  260,  104  N.  W.  904,   128  Iowa,  533. 

480.  A  contract  by  one,  who,  after  agree- 
ing to  marry  a  woman,  induces  her  to  sub- 
mit to  surgical  operations  which  render  her 
unable  to  support  herself,  to  support  her 
in  consideration  of  release  from  his  engage- 
ment is  valid  and  enforceable.  Henderson 
V.  Spratlen,  19:  655,  98  Pac.  14,  44  Colo.  278. 

481.  A  contract  for  reward  to  introduce 
another  to  persons  of  the  opposite  sex  with 
a  view  to  marriage  with  one  of  those  persons 
is  a  marriage  brokage  contract  and  illegal. 
Hermann  v.  Charlesworth,  3  B.  R.  C.  629, 
[1905]  2  K.  B.  123.  Also  Reported  in  74 
L.  J.  K.  B.  N.  S.  620,  54  Week.  Rep.  22,  93 
L.  T.  N.  S.  284,  21  Times  L.  R.  368. 

(Annotated) 
To  affect  bid. 
See  also  infra,  615 ;  Judicial  Sale,  17. 

482.  An  agreement  between  a  stockholder 
and  creditors  of  a  corporation  whose  claims 
are  secured  by  deed  of  trust  on  the  cor- 
porate property,  that  he  will  bid  in  the  prop- 
erty at  a  judicial  sale  and  pay  the  corpo- 
rate debts  to  the  amount  of  its  value,  is 
not  invalid  as  an  agreement  to  suppress 
bidding.  Sattcrfield  v.  Kindley,  15:  399,  57 
S.  E.  145,  144  N.  C.  455. 

483.  An  agreement  between  two  or  more 
persons  not  general  partners,  who  are  com- 
petitive bidders  at  delinquent  tax  sales. 
Digest  1-52  L.R.A.(N.SO 


that  they  will  become  partners  in  all  lands 
that  may  be  thereafter  purchased  by  either 
of  them,  contravenes  public  policy,  and  will 
render  void  a  tax  deed  acquired  pursuant 
to  such  agreement.  Coal  &  Coke  R.  Co.  v. 
Marple,  38:  719,  73  S.  E.  261,  70  W.  Va.  136. 
Against    xirill    contest. 

484.  A  contract  whereby  one  interested 
in  defeating  the  probate  of  a  will  agrees  to 
interpose  no  objection  thereto,  is  not  void 
as  against  public  policy,  unless  made  col- 
lusively  and  in  fraud  of  other  parties  in- 
terested in  the  estate.  Grochowski  v.  Gro- 
chowski,  13:  484,  109  N.  W.  742,  77  Neb. 
506.  (Annotated) 
To  defeat  probate  of  lirill. 

485.  An  agreement  to  compensate  the 
executor  and  trustee  under  a  will  for  what 
he  would  have  received  in  such  capacity,  in 
case  he  will  defeat  its  probate  so  as  to  cut 
off  the  interests  of  the  issue  of  testator's 
children,  who  are  given  remainders  after  the 
children's  life  estates,  and  who  are  not 
parties  to  the  agreement,  is  void  as  against 
public  policy,  as  tending  to  thwart  justice 
and  to  defeat  the  trust  reposed  in  the  execu- 
tor and  trustee,  without  regard  to  the  in- 
terests of  the  beneficiary.  Cochran  v.  Zach- 
ery,  16:  235,  115  N.  W.  486,  137  Iowa,  585. 

(Annotated) 
BetTreen   parents   as   to   children. 

486.  Agreements  by  parents  for  the 
transfer  to  others  of  the  custody  of  their 
children  are  against  public  policy,  and  are 
not  ordinarily  enforceable  or  binding  upon 
the  parties.  Hernandez  v.  Thomas,  2:  203, 
39  So.  641,  50  Fla.  522. 

487.  A  contract  between  a  man  and  wife 
as  t^  the  support  of  their  child  is  not  , 
void  as  against  public  policy  because  it  is 
entered  into  pending  divorce  proceedings 
between  them,  where  neither  its  purpose 
nor  effect  in  any  way  facilitates  the  grant- 
ing of  the  divorce.  Ward  v.  Goodrich, 
2:  201,  82  Pac.  701,  34  Colo.  369. 

(Annotated) 

488.  A  contract  between  a  man  and  the 
mother  of  his  illegitimate  child,  to  give 
property  to  the  child  in  case  she  permits  it 
to  remain  with  him,  is  not  illegal.  Doty 
V.  Doty,  2:  713,  80  S.  W.  803,  118  Ky.  204. 

489.  A  contract  by  a  mother  to  supender 
the  care  and  custody  of  her  child  to  her 
father-in-law,  a  man  of  wealth,  in  con- 
sideration of  his  agreement  to  support  the 
mother  for  life,  is  not  void  as  against 
public  policy,  where  it  is  for  the  best  in- 
terest of  the  child.  Clark  v.  Clark,  49: 
1163,  89  Atl.  405,  122  Md.  114. 

As  to  evidence. 
See  also  supra,  479. 

490.  A  contract  to  secure  evidence  of  a 
given  state  of  facts,  which  will  permit  the 
winning  of  a  lawsuit,  is  void  as  against 
public  policy.  Neece  v.  Joseph,  30:  278,  129 
S.  W.  797,  95  Ark.  552.  (Annotated) 

491.  An  agreement  by  one  having  a  claim 
against  a  decedent's  estate  to  give  such  true 
evidence  as  may  be  necessary  to  enable  the 
heirs  to  recover  the  estate,  in  consideration 
that    they    pay   his    claim,   is    not   void    as 


652 


CONTRACTS,  III.  c,  2,  3. 


against   public   policy.      Smith   v.   Hartsell, 
32:  203,  63  S.  E.  172,  150  N.  C.  71. 
I.ease   for  immoral  purposes. 

492.  A  lease  is  not  rendered  void  by  mere 
knowledge  on  the  part  of  the  lessor  of  in- 
tention to  subject  the  premises  for  the  pur- 
pose of  running  a  bawdyhouse.  Ashford  v. 
Mace,  39:  1 104,  148  S.  W.  474,  103  Ark.  114. 

(Annotated) 
To  compound  crime. 
Refusal  to  enforce  contract  of  other  state, 

see  Conflict  of  Laws,  28. 
See  also  infra,  618,  619. 

493.  A  deed  by  parents  to  avoid  prose- 
cution of  their  child  upon  a  charge  which 
is  in  fact  unfounded,  but  which  the  accuser 
honestly  believes  that  the  child  has  sub- 
jected itself  to,  will  be  set  aside.  Ball  v. 
Ball  (N.  J.  Err.  &  App.)  37:  539,  81  Atl. 
724,  79  N.  J.  Eq.  170. 

494.  An  agreement  by  a  man  in  settling 
an  action  against  another  for  criminal  con- 
versation with  his  wife,  that  he  would  do 
nothing  whereby  the  matter  would  acquire 
any  publicity  whatever,  is  against  public 
policy,  and  no  right  of  action  will  arise  out 
of  its  breach  by  introducing  the  agreement 
in  evidence  in  a  divorce  proceeding  against 
his  wife.  McKenzie  v.  Lynch,  36:  995,  135 
N.  W.  490,  167  Mich.  583.  (Annotated) 

495.  A  mortgage  by  one  subject  to  prose- 
cution for  violation  of  a  labor  contract,  to 
secure  a  valid  debt  for  advancements,  is  sup- 
ported by  a  valid  consideration,  although 
the  mortgagee,  in  consideration  of  it,  under- 
takes not  to  prosecute  if  the  debt  is  paid 
within  a  specified  time.  Bankhead  v.  Shed, 
16:  971,  61  S.  E.  425,  80  S.  C.  253. 

(Annotated) 
As  to  entries  on  public  lands. 
See  also  infra,  601. 

496.  An  agreement  not  to  file  a  protest 
against  an  application  for  a  patent  for  pub- 
lic land  is  void  as  against  public  policy, 
since  the  protest  is  merely  the  giving  of  in- 
formation showing  that  the  applicant  is  not 
entitled  to  a  patent.  Roy  v.  Harney  Peak 
Tin  Min.  Mill.  &  Mfg.  Co.  9:  529,  110  N.  W. 
106,  21  S.  D.  140.  (Annotated) 

497.  An  agreement  to  procure  qualified 
citizens  to  enter  lands  under  the  general 
homestead  law,  and  to  grant  their  use  to 
another  until  they  should  make  final  proof 
or  difpose  of  their  holdings,  without  the 
reservation  of  any  part  of  this  use  for  the 
residence  thereon  or  the  cultivation  thereof 
by  the  entry  men,  is  inconsistent  with  the 
purpose  and  spirit,  and  violative  of  tl.e 
terms,  of  the  law,  although  no  contract  is 
made  regarding  the  disposition  of  the  title 
which  may  be  obtained.  Ware  v.  United 
States,  12:  1053,  154  Fed.  577,  84  C.  C.  A. 

.  S.  Contracts  against  liability. 

(See   also   same   heading   in  Digest  L.R.A. 


V'\    Jl!"J(I' 


nr. 


By  carrier,  see  Carbiebs,  IT.  m,  6,  IT.  o,  5, 

III.  g;  Conflict  of  Laws,  50,  52-55. 
Digest  1-52  L.R.A.(N.S.) 


By  telegraph  company,  see  Texeqbaphs,  IT. 

d. 
See  also  infra,  561,  562. 

For  negligent  fires. 

498.  A  provision  in  a  lease  by  a  railroad 
company  of  a  parcel  of  land  for  warehouse 
purposes,  which  places  the  risk  of  fire  upon 
the  lessee,  who  assumes  all  risk  thereof 
whether  caused  by  the  negligence  of  the 
lessor  or  otherwise,  is  not  void  as  against 
public  policy.  Checkley  v.  Illinois  C.  R. 
Co.   44:  1127,   100   N.   E.   942,  257   111.   491. 

(Annotated) 

Release    of    claim    for    injuries. 

Release  from  liability  for  injury  to  em- 
ployee on  sleeping  car,  see  Carbiebs, 
664-669;  Master  and  Servant,  18. 

Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  323,  472,  473,  723. 

See  also  Release,  12-18. 

499.  A  provision  in  a  contract  of  mem- 
bership in  the  relief  deparLnent  of  a  rail- 
road company,  that,  if  any  suit  at  law  shall 
be  brought  against  the  company  for  damages 
arising  from  or  growing  out  of  the  death 
of  the  member,  the  benefit  otherwise  paya- 
ble shall  thereby  be  forfeited,  is  against 
public  policy,  and  will  not  be  enforced.  Chi- 
cago, B.  &  Q.  R.  Co.  V.  Healy,  10:  198,  107 
N.  W.  1005,  111  N.  W.  598,  76  Neb.  783. 

(Annotated) 

500.  A  provision  in  the  articles  of  a  rail- 
way relief  association  for  the  right  to  par- 
ticipate in  tlie  benefits  of  which  employees 
are  required  to  contribute  of  their  earnings, 
that  the  acceptance  of  benefits  by  one  in- 
jured by  the  railroad's  negligence  shall 
operate  as  a  release  of  all  claim  against  the 
company  for  damages  growing  oi:t  of  the 
injury,  is  void.  Barden  v.  Atlantic  C.  L. 
R.  Co.  49:  801,  67  S.  E.  971,  152  N.  C.  318. 

501.  A  contract  by  an  employee  relieving 
the  employer  from  liability  for  injuries  due 
to  the  latter's  negligence  is  against  public 
policy  and  void.  Johnston  v.  Fargo,  7:  537, 
77  N.  E.  388,  184  K  Y.  379.         (Annotated) 

502.  The  attempr  by  a  railroad  company 
to  relieve  itself  from  liability  for  negligent 
injuries  to  employees  on  its  outfit  cars  by 
securing  from  them  a  release  in  advance  is 
against  public  policy  and  without  avail. 
Pugmire  v.  Oregon  Short  Line  R.  Co.  13: 
565,  92  Pac.  762,  33  Utah,  27. 

3.  As  to  corporations  and  associations. 

(See   also   same   heading   in  Digest   L.R.A. 

1-70.) 

.-,T 
Contracts  of  corporation  generally,  see  Ooft- 

pobations,  IV.  d. 

503.  An  agreement  between  shareholders 
controlling  the  stock  of  the  corporation, 
that  certain  directors  shall  act  as  nominal 
or  dummy  directors,  subservient  to  the  will 
of  the  parties,  is  illegal,  and  cannot  be  en- 
forced in  a  court  of  equity.  Jackson  v. 
Hooper  (N.  J.  Err.  &  App.)  27:  658,  75 
Atl.  568,  76  N.  J.  Eq.  59^.  (Annotated) 

■'■■'"-••I 


CONTRACTS,  III.  c,  4. 


653 


Railroads.  "':  *^  ^  • 

As  to  railroad  relief  association,  see  supra, 

499,  500. 
Sufficiency  of  bill  for  specific  performance  of, 

see  Pleading,  195. 
Contract  as  to  location  of  station  by  carrier, 

see  Pleading,  654. 

504.  An  agreement  between  two  factions 
of  the  shareholders  of  a  railroad  company 
incorporated  by  the  secretary  of  state,  to  the 
efTect  that  one  of  such  factions,  owning  half 
of  the  corporate  stock,  shall  have  the  right 
indefinitely  to  name  a  majority  of  the 
directors  of  the  company,  and  thus  manage 
and  control  its  affairs,  is  against  public 
policy,  and  therefore  void.  Morel  v,  Hoge, 
i6:  1136,  61  S.  E.  487,  130  Ga.  625. 

( Annotated ) 

505.  A  partnership  agreement  to  organize 
a  railroad  corporation  and  secure  a  profit 
by  inducing  it  to  turn  over  to  a  construc- 
tion company  for  the  construction  of  the 
road  its  stock  and  bonds  of  a  par  value  in 
excess  of  the  actual  cost  of  construction  is 
not  void  as  against  public  policy.  Leeds  v. 
Townsend,  13:  191,  81  N.  E.  1069,  228  111. 
451.  (Annotated) 

506.  No  public  policy  is  violated  by  the 
granting  of  options  to  purchase  timber  land 
at  its  fair  value,  to  persons  contemplating 
the  construction  of  a  railroad,  so  as  to  in- 
duce the  selection  of  a  route  near  such  lands, 
rather  than  others  in  contemplation,  in  or- 
der to  secure  the  freight  from  transportation 
of  the  timber,  if  there  is  nothing  to  show 
that  the  interests  of  the  public  are  impaired 
by  the  selection  of  such  route  in  preference 
to  the  others.  McCowen  v.  Pew,  2 1 :  800, 
96  Pac.  893,  153  Gal.  735.  (Annotated) 

507.  A  contract  made  by  a  managing  of- 
ficer of  a  railroad  company,  by  which  he  is 
to  receive  a  personal  benefit  in  considera- 
tion of  the  location  of  a  station  at  a  par- 
ticular place,  is  void  as  against  public  poli- 
cv.  Peckham  v.  Lane,  25:  967,  106  Pac.  464. 
81  Kan.  489. 

508.  An  agreement  by  a  railroad  com- 
pany to  establish  a  station  at  which  two 
trains  from  each  direction  will  stop  daily, 
and  to  maintain  such  station  during  the  life 
of  its  charter,  provided  a  prospective  pur- 
chaser will  settle  at  that  point  and  buy  cer- 
tain land  and  improve  it,  is  enforceable 
against  the  company  so  long  as  the  duties 
incumbent  on  it  by  the  contract  do  not  con- 
flict with  the  duties  owed  by  it  to  the  pub- 
lic. Atlanta  &  W.  P.  R.  Co.  v.  Gamp,  15: 
594,  60  S.  E.  177,  130  Ga.  1.         (Annotated) 

509.  A  contract  by  a  railroad  company, 
in  consideration  of  a  grant  of  a  right  of 
way,  to  establish  a  station  and  stop  trains 
at  a  certain  place  without  depriving  it  of 
the  power  of  complying  with  its  duty  to  the 
public  in  that  respect,  is  not  unlawful,  and 
will  be  enforced  if  its  enforcement  will  not 
be  detrimental  to  the  interests  of  the  public, 
or  impose  a  great  burden  without  corre- 
sponding benefit.  Herzog  v.  Atchison,  T.  & 
S.  F.  R.  Go.  17:  428,  95  Pac.  898,  153  Gal. 
496. 

510.  A  contract  by  a  railroad  company 
to  maintain  a  siding  for  private  us 3,  arid 
Digest  1-52  L.R.A.(N.S.) 


I  to  run  trains  to  and  from  it,  is  not 
against  public  policy.  Whalen  v.  Baltimore 
&  0.  R.  Go.  17:  130,  69  Atl.  390,  108  Md.  11. 

(Annotated) 
Street  railw^ays. 

511.  A  provision  in  the  franchise  of  a 
street  railway  company,  granted  by  a 
municipality,  and  ^imposing  upon  the  com- 
pany the  duty  of  transporting  policemen, 
firemen,  United  States  mail  carriers,  and 
children,  under  a  certain  age,  free,  and  also 
of  carrying  school  children  at  half  the  regu- 
lar fare,  is  not  contrary  to  public  policy. 
Oklahoma  Citv  v.  Oklahoma  R.  Co.  16:  651, 
93  Pac.  48,  20"Okla.  1. 

'Water   companies. 

512.  A  contract  made  by  a  corporation 
formed  for  the  purpose  of  supplying  water 
or  water  power,  wherebj'  an  electric  heat 
and  power  company  is  given  the  right  to 
take  water  from  the  canal  of  the  water 
company  for  fifteen  years,  with  the  privi- 
lege of  a  renewal  of  the  contract  on  the 
same  terms  for  an  additional  fifteen  years, 
is  contrary  to  public  policy,  and  void,  where 
it  would  prevent  the  water  company  from 
serving  the  public  on  equal  terms,  or  from 
carrying  out  the  purpose  for  which  it  was 
incorporated.  Sammons  v.  Kearney  Power 
&  Irrig.  Co.  8:  404,  110  N.  W.  308,  77  Neb. 
580. 

4.  Affecting  official  action.      '■•'- 

(See  also   same  heading  in  Digest  L.R.A. 

1-10.) 

Criminal  liability  as  to,  see  Bribery. 

513.  An  agreement  to  pay  for  services  in 
selling  goods  to  a  public  board  which  does 
not  contemplate  the  exercise  of  personal  or 
political  influence,  and  in  the  carrying  out 
of  which  no  such  influence  is  in  fact  exerted, 
and  which  is  otherwise  unobjectionable,  is 
not  rendered  void  because  the  salesman's 
compensation  is  made  to  depend  upon  the 
success  of  his  efforts,  or  because  he  makes 
a  legitimate  argument  to  one  of  the  mem- 
bers of  the  board  while  the  others  are  not 
present.  Kansas  City  Paper  House  v.  Foley 
R.  Printing  Co.  39:  747,  118  Pac.  1056,  85 
Kan.  678.  ^ Annotated) 

514.  An  agreement  by  the  owner  of  a 
building  with  his  tenant,  to  secure  the  ex- 
tension of  a  railroad  track  along  an  alley, 
to  furnish  the  building  with  shipping  facili- 
ties, is  not  against  public  policy  as  an 
agreement  improperly  to  influence  munic- 
ipal action.  Cole  v.  Brown-Hurley  Hard- 
ware Go.  18:  1 161,  117  N.  W.  746,  139  Iowa, 
487. 

Passage  of  statute. 

515.  A  contract  by  an  attorney  to  procure 
legislative  action  on  behalf  of  a  client  will 
be  enforced,  unless  it  appears  that  it  con- 
templates the  use  of  unlawful  or  improper 
means,  or  that  such  means  were  employed 
in  pursuance  thereof  to  attain  the  object  for 
which  the  contract  was  made.  Stroemer  v. 
Van  Orsdel,  4:  212,  103  N.  W.  1053,  74  Neb. 
132.  (Annotated) 

516.  A  contract  between  an  attorney  and 
client  for  services  to  be  rendered  by  the  for- 


654 


CONTRACTS,  III.  c,  5. 


mer  is  not  necessarily  invalid  because  a 
part  of  the  services  to  be  rendered  is  the 
procurement  of  legislative  action,  nor  be- 
cause such  contract  provides  for  a  con- 
tingent fee.  Stroemer  v.  Van  Orsdel,  4:  212, 
103  N.  W.  1053,  74  Neb.  132.  (Annotated) 
Election    or    appointment,   to    office. 

517.  Agreements  to  use^  one's  influence  to 
Secure  the  election  or  appointment  of  a 
peroon  to  a  public  ofiice,  or  to  restrict  the 
free  exercise  of  the  discretion  vested  in  a 
public  officer  for  the  public  good,  are  op- 
posed to  the  policy  of  the  law,  and  will  not 
be  enforced  by  the  courts.  Schneider  v. 
Local  Union  No.  60,  5:  891,  40  So.  700,  116 
La.  270. 

As  to  location  of  public  buildings. 
See  also  infra,  529. 

518.  An  issue  as  to  the  effect  of  the  par- 
tial compliance  by  a  municipal  corporation 
with  its  contract  upon  the  value  of  the  land 
of  one  who  donated  money  toward  the  ex- 
pense of  certain  ,jublic  buildings  in  consider- 
ation of  an  agreement  by  the  municipality 
to  locate  them  at  a  certain  place  is  imma- 
terial in  an  action  to  recover  for  breach  of 
the  agreement,  since  the  contract  is  void  as 
against  public  policy.  Edwards  v.  Golds- 
boro,  4:  589,  53  S.  E.  652,  141  N.  C.  60. 

5.  Contracts  of  public  officers  or  con- 
tracts in  xohich  they  are  interested. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

For  contracts  affecting  official  actions,  see 
supra,  III.  c,  4. 

Libel  in  charging  officer  with  making,  see 
Libel  and  Slander,  72. 

Refusal  of  mandamus  to  compel  payment  of 
amount  in  excess  of  that  agreed  upon, 
see  Mandamus,  27. 

Power  of  officer  to  exact  contract,  see  Offi- 
cers, 80. 

See  also  supra,  436 ;  infra,  600,  616. 

519.  A  board  of  freeholders  appointed  to 
draft  a  charter  for  a  municipality,  cannot 
employ  and  agree  to  pay  one  or  more  of  its 
members  as  counsel  for  the  board,  to  fur- 
nish advice  to  it,  and  to  prepare  a  charter 
for  it.  Young  v.  Mankato,  3:  849,  105  N. 
W.  969,  97  Minn.  4.  (Annotated) 

520.  It  is  the  duty  of  an  officer  having  a 
power  of  appointment,  to  make  the  best  ap- 
pointment in  his  power  at  the  e  the  ap- 
pointment is  made,  and  it  is  against  public 
policy  that  he  should  be  deprived  of  the  ex- 
ercise of  his  best  judgment  by  a  contract 
previously  made  or  an  obligation  previously 
assumed.  Schneider  v.  Local  Union  No.  60, 
5:  891,  40  So.  700,  116  La.  270. 

621.  A  contract  for  the  services  of  a 
morgue  keeper,  executed  by  a  county  board 
just  before  the  expiration  of  the  term  of 
office  of  a  part  of  the  members  thereof, 
and  the  taking  of  office  by  their  successors, 
which  is  reasonable,  is  not  against  public 
policy,  and  cannot  legally  be  rescinded  with- 
out cause  after  sucli  new  members  have 
Digest  1-52  L.R.A.<N.S.) 


qualified  as  such.     Manley  v.  Scott,  29:  652, 
121  N,  VV.  628,  108  Minn.  142. 
As  to   compensation. 

522.  An  agreement  between  a  public  offi- 
cer and  a  board  of  county  commissioners  to 
accept  less  than  the  statutory  fees  for  the 
performance  of  services  is  void  as  against 
public  policy.  Wolfe  v.  Humboldt  County, 
45:  762,  131  Pac.  964,  36  Nev.  26. 

523.  Consenting  to  take  less  than  the 
amount  named  in  an  appropriation  bill,  if 
the  governor  will  approve  it,  does  not  es- 
top one  in  whose  favor  the  appropriation  is 
made  from  claiming  the  whole  of  it ;  since 
such  agreement  is  against  public  policy. 
Lukens  v.  Nye,  36:  244,  105  Pac.  593,  156 
Cal.  498.  (Annotated) 
Sale   of   office. 

524.  The  appointment  by  a  sheriff  as  his 
deputy  of  one  who  withdrew  from  candidacy 
for  the  nomination  in  consideration  of  the 
promise  of  a  deputyship  is  not  obnoxious  to 
a  statute  forbidding  the  sale  or  letting  to 
farm  or  deputation  of  any  office.  Com.  ex 
rel.  Lyman  v.  Sheeran,  37:  289,  140  S.  W. 
568,  145  Ky.  361. 

Private  interest  of  officer. 

Duty  of  officer  to  account  for  secret  profits 
made  in  purchasing  real  estate  for  city, 
see  Estoppel,  3;  Trusts,  53. 

See  also  Municipal  Corporations,  244. 

525.  The  attempt  by  a  sheriff  to  contract 
for  a  profit  to  himself  when  undertaking 
to  supply  deputies  to  guard  and  protect 
property  and  employees  of  the  other  con- 
tracting'party  during  a  strike,  at  a  certain 
sura  per  day  for  each  man  furnished,  ren- 
ders the  contract  void.  Shields  v.  Latrobe- 
Connellsville  Coal  &  C.  Co.  45:  38,  86  Atl. 
784,  239  Pa.  233.  (Annotated) 

526.  A  sale  of  merchandise  by  a  council- 
man to  the  municipality  is  void  as  contrary 
to  public  policy,  although  he  refrained  from 
voting  for  the  purchase.  Bay  v.  Davidson, 
9:  1014,  111  N.  W.  25,  133  Iowa,  688. 

527.  That  material  for  street  improve- 
ments, made  necessary  by  a  change  in  the 
specifications,  was  purchased  in  the  open 
market  by  the  contractor  from  a  corpora- 
tion in  which  municipal  officers  have  stock, 
does  not  nullify  the  improvement  contract 
under  a  statute  providing  that  no  officer 
shall  be  interested,  directly  or  indirectly, 
in  any  contract  with  the  town.  O'Neill 
V.  Auburn,  50:  1140,  135  Pac.  1000,  76  Wash. 
207.  (Annotated) 

528.  A  loan  of  money  is  not  within  the 
operation  of  a  statute  preventing  a  mem- 
ber of  a  municipal  council  from  profiting 
by  any  contract  for  the  sale  or  furnishing 
of  any  supplies  or  material  to  the  munici- 
pality. Long  v.  Lemoyne,  21:  474,  71  Atl. 
211,  *222  Pa.  311. 

As  to  location  of  postoffice. 
Admissibility  of  evidence  of  contract  void  as 

against    public    policy,    see    Evidence, 

1940. 
See  also  infra,  602. 

529.  A  contract  by  a  postmaster,  for  a 
consideration,  to  locate  the  postoffice  in  a 
certain  building,  is  void  as  contrary  to  pub- 


CONTRACTS,  III.  d,  e,  1. 


655 


lie  policy.     Benson  v.  Bawden,  13:  721,  113 
N.  W.  2Q,  149  Mich.  584. 

d.  Gamhling  and  wager  contracts. 

(See   also   same   heading    in   Digest   L.R.A. 

1-10.) 

Remedy  in  case  of,  see  infra,  584-594. 

Enforcement  of  gambling  contract  of  other 
state,  see  Conflict  of  Laws,  13-16. 

Estoppel  to  set  up  defense  that  note  was 
given  in  gambling  transaction,  see  Es- 
toppel, 108,  169;  Plil&ding,  525. 

As  to  gaming  generally,  see  Gaming. 

As  to  insurable  interest  in  property  or  life, 
see  Insurance,  II. 

As  to  lottery,  see  Lottert. 

Notice  to  surety  of  broker  that  customer's 
notes  taken  as  collateral  security  were 
executed  in  gaming  transactions,  see 
Notice,  6. 

Specific  performance  of  lottery  contract,  see 
Specific  Performance,  26,  27. 

See  also  supra,  450. 

Playing    at    cards,    etc. 

530.  The  indorsement  and  transfer  by  one 
playing  at  a  roulette  wheel  of  a  certificate 
of  deposit  upon  the  operator's  cashing  it  to 
put  him  in  funds  to  play  the  game  is  with- 
in the  statute  of  9  Anne,  cliap.  14,  adopted 
as  part  of  the  common  law  of  Nevada,  pro- 
viding that  all  securities  for  reimbursing 
any  money  knowingly  advanced  at  the  time 
and  place  of  the  play,  to  any  person  gaming 
or  betting,  shall  be  utterly  void,  and  there- 
fore no  title  to  the  certificate  passes.  Burke 
V.  Buck,  22:  627,  99  Pac.  1078,  31  Nev.  74. 

(Annotated) 
Purchase    of   grain,    stocks,    etc. 
See  also  infra,  590-594. 

531.  The  mere  fact  that  remittances  with 
orders  for  grain  for  future  delivery  were 
used  for  margins,  and  that  none  of  the 
grain  was  fully  paid  for  or  ever  delivered, 
does  not  show  that  a  wagering  contract  was 
contemplated  by  the  broker,  where  his  prin- 
cipal, who  was  able  to  conduct  large  finan- 
cial operations,  required  the  respective 
transactions  to  be  closed  long  before  the  spec- 
ified time  for  delivery  arrived  according 
to  the  legally  recognized  usages  of  the 
trade.  Hallet  v.  Aggergaard,  14:  1251,  114 
N.  W.  696,  21  S.  D.  554. 

532.  An  executory  agreement  for  the  sale 
of  goods  to  be  delivered  at  a  future  day  is 
valid  unless  neither  of  the  parties  contem- 
plated an  actual  delivery,  and  it  was  the 
intention  of  both  that  there  should  be  a 
settlement  of  differences  based  on  the  mar- 
ket value  of  the  goods  on  the  day  for  de- 
livery. Stewart  v.  Postal  Teleg.-Cable  Co. 
18:  692,  61  S.  E.  1045,  131  Ga.  31. 

533.  A  broker  who  was  privy  to  wagering 
contracts  for  fictitious  or  .option  futures, 
and  who  brought  the  parties  together  for 
the  very  purpose  of  entering  into  such 
illegal  agreements,  cannot  recover  money 
advanced  by  him  for  margins  on  account  of 
his  principal  in  furtherance  of  the  trans- 
Digest  1-52  L.R.A.(N.S.) 


action.     Anderson   v.   Holbrook,    11:  575,   57 
S.  E.  500,  128  Ga.  233.  (Annotated) 

534.  A  speculative  contract  for  the  pur- 
chase and  sale  of  stocks  on  margin  is  not 
invalid,  as  a  gambling  transaction.  Richter 
v.  Poe,  22:  174,  71  Atl.  420,  109  Md.  20. 

e.  In  restraint  of  trade. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.)  ^ 

Remedies  on,  see  infra,  567. 

Contract  giving  exclusive  privilege  to  hacks, 
carriages,  etc.,  see  Carriers,  1007-1013. 

Right  of  third  person  to  maintain  action 
for  injury  caused  by  enforcement  of 
agreement  in  restraint  of  trade,  see 
Case,  8. 

Combinations  between  several  persons  or 
corporations  in  restraint  of  trade  or 
commerce,  see  Monopoly  and  Combi- 
nations, II. 

See  also  supra,  410a. 

535.  A  contract  in  unreasonable  restraint 
of  trade  is  illegal,  although  the  restraint  is 
only  partial  and  does  not  constitute  a  com- 
plete monopoly.  Pocahontas  Coke  Co.  v. 
Powhatan  Coal  &  C.  Co.  10:  268,  56  S.  E. 
264,  60  W.  Va.  508. 

536.  A  contract  in  restraint  of  trade  will 
not  be  enforced  unless  the  restraint  is  no 
more  extensive  than  is  reasonably  required 
to  protect  the  interests  of  the  party  in  favor 
of  whom  it  is  given,  and  not  so  large  as 
to  interfere  with  the  interests  of  the  public. 
Taylor  Iron  &  Steel  Co.  v.  Nichols  (N.  J. 
Err.  &  App.)  24:  933,  69  Atl.  186,  73  N.  J. 
Eq.  684. 

537.  An  agreement  of  a  retailer  to  buy  a 
particular  line  of  goods  exclusively  from  a 
certain  manufacturer  thereof,  for  a  limited 
period  of  time,  and  confined  to  a  particular 
locality,  in  consideration  of  other  cove- 
nants therein  of  mutual  advantage  to  the 
parties,  when  otherwise  unobjectionable  un- 
der the  law,  is  not  invalid  as  a  restraint  of 
trade.  J.  W.  Ripy  &  Son  v.  Art  Wall 
Paper  Mills,  51:  33,  136  Pac.  1080,  41  Okla. 
20. 

538.  A  contract  by  a  merchant  to  handle 
the  product  of  a  certain  manufacturer  ex- 
clusively in  his  business  for  a  specified  term 
is  not  against  public  policy.  Peerless  Pat- 
tern Co.  V.  Gauntlett  Drv  Goods  Co.  42:  843, 
136  N.  W.  1113,  171  Mich.  158.  (Annotated) 

539.  A  contract  by  one  producing  olive 
oil  by  secret  process,  with  persons  selling  it 
at  retail,  that  they  will  maintain  the  price 
fixed  by  him,  is  not  void  as  in  restraint  of 
trade.  Grogan  v.  Chaffee,  27:  395,  105  Pac. 
74.5,   156  Cal.  611.  (Annotated) 

540.  A  contract  by  the  producer  of  oil 
and  gas  for  exclusive  right  of  way  across 
a  farm  lying  between  oil  land  and  the  mar- 
ket is  void  as  against  public  policy.  Calor 
Oil  &  Gas  Co.  V.  Franzell,  36:  456,  109  S.  W. 
328,   128  Ky.   715.  (Annotated)  i 

541.  A   contract   between    a    corporation- 


056 


CONTRACTS,  III.  e,  2. 


employing  a  large  number  of  persons  in 
a  small  village,  and  one  leasing  a  building 
formerly  used  by  the  corporation  as  a  com- 
missary for  its  employees,  by  which  it  is 
agreed  that  the  lessor  shall  relinquish  its 
right  to  maintain  a  commissary,  shall  use 
its  influence  to  induce  its  employees  and 
others  to  purchase  their  supplies  from  the 
lessee,  and  shall  issue  to  its  employees  mer- 
chandise checks  against  their  wages,  direct- 
ed exclusively  to  the  lessee,  which  are  to 
be  redeemed  by  the  lessor,  through  the  les- 
see, for  cash  at  par  every  thirty  days,  provid- 
ed such  issue  is  legal,  the  lessee  in  his  turn 
agreeing  to  establish  a  general  store,  and 
to  accept  as  cash  the  merchandise  coupons 
issued  by  the  lessor,  and  to  pay  the  lessor 
every  thirty  days  a  commission  of  5  per 
cent  on  gross  sales,  which  is  greatly  in  ex- 
cess of  the  rental  value  of  the  leased  build- 
ing,— is  invalid  as  tending  to  restrain  trade 
and  to  create  a  monopoly.  Stewart  v. 
Stearns  &  Culver  Lumber  Co.  24:  649,  48 
So.  19,  56  Fla.  570.  (Annotated) 

542.  A  contract  for  personal  services, 
which  forbids  the  employee  to  divulge  any 
information  known  to  him  or  acquired  by 
him  during  his  employment,  relating  to  the 
process  of  manufacture,  and  to  hold  invio- 
late the  treatment,  processes,  and  secrets 
known  to  or  used  by  him  in  the  works  of 
the  employer,  which  is  unlimited  as  to  time 
and  place,  will  not  be  enforced.  Taylor 
Iron  &  Steel  Co.  v.  Nichols  (N.  J.  Err.  & 
App.)  24:  933,  69  Atl.  186,  73  N.  J.  Eq.  684. 

(Annotated) 

543.  A  contract  giving  a  telephone  com- 
pany the  exclusive  right  to  furnish  connec- 
tions with  a  hotel  for  a  term  of  years,  al- 
though only  in  partial  restraint  of  trade, 
is  against  public  policy  and  void,  since  it 
injuriously  affects  the  public  interests.  Cen- 
tral New  York  Teleph.  &  Teleg.  Co.  v. 
Averill,  32:  494,  92  N.  E.  206,  199  N.  Y.  128. 

( Annotated ) 

2.  To  refrain  from  J}usiness. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

Consideration  for  agreement,  see  supra,  79- 

82. 
Mutuality  of  contract,  see  supra,  147. 
Jurisdiction  of  equity  to  restrain  breach,  see 

Equity,  37. 
Enjoining  breach  of  contract,  see  Injuno 

TiON,  70-78. 
See  also  supra,  355,  416. 

544.  A  contract  between  the  proprietors 
of  the  only  two  first-class  hotels  in  a  place, 
to  close  one  for  a  money  consideration  to 
be  paid  by  the  proprietor  of  the  other,  in 
order  to  give  the  latter  a  monopoly  of  the 
business,  is  contrary  to  public  policy  and 
void.  Clemmons  v.  Meadows,  6:  847,  94  S. 
W.  13,  123  Ky.  178.  (Annotated) 

545.  The  transferee  of  stock  in  a  manu- 
facturing company  is  within  the  operation 
of  an  exception  to  a  statute  making  illegal 

I  agreements   not   to   engage   in   business,   to 
Digest  1-52  X.RJV.(N.S.) 


the  effect  that  the  act  shall  not  apply  to 
any  contract  where  the  only  object  of  the 
restraint  is  to  protect  the  vendee  or  trans- 
feree of  a  trade  or  business  sold  and  trans- 
ferred for  a  valuable  consideration,  in  good 
faith,  without  intent  to  create  a  monopoly, 
and  he  can  enforce  such  contract  against 
his  transferer.  Buckhout  v.  Witwer,  23: 
506,  122  N.  W.  184,  157  Mich.  406. 

(Annotated) 

546.  A  sale  of  the  good  will  of  an  estab- 
lished business  in  connection  with  a  sale  of 
the  business  is  not,  if  reasonable  in  other 
respects,  void  because  unlimited  as  to  time. 
Southworth  v.  Davison,  19:  769,  118  N.  W. 
363,  106  Minn.  119. 

547.  An  agreement  not  to  compete  with  a 
dental  business  sold  is  not  invalid  because 
unlimited  in  time.     Foss  v.  Roby,  10:  1200, 
81  N.  E.  199,  195  Mass.  292. 
Limitations  as  to  time. 

548.  A  contract  by  one  selling  a  business 
not  to  compete  for  a  certain  time  with  the 
buyer,  when  it  is  reasonable  and  goes  no 
farther  than  aiTording  a  fair  protection  to 
the  good  will  purchased,  is  enforceable. 
Bradford  v.  Montgomery  Furniture  Co.  g: 
979,  92  S.  W.  1104,  115  Tenn.  610. 

549.  A  contract  of  a  selling  agent  of  a 
company  engaged  in  the  manufacture  and 
sale  of  maps,  who  had  as  his  territory  a 
certain  state,  except  a  few  counties  there- 
of, whereby  such  agent  agrees,  without  ter- 
ritorial limitation,  that  he  will  not,  with- 
out the  consent  of  the  company  in  writing, 
within  six  months  after  the  termination 
of  his  contract,  either  directly  or  indi- 
rectly or  in  any  capacity,  whether  for  him- 
self or  for  any  other  person,  company,  or 
corporation,  engage  in  any  business  simi- 
lar to  that  conducted  by  the  company  which 
might  in  any  manner  be  injurious  to  its 
interests,  is  in  general  restraint  of  trade 
and  unenforceable.  Kinney  v.  Scarbrough, 
Co.  40:  473,  74  S.  E.  772,  138  Ga.  77. 

( Annotated ) 
Limitations    as   to   space. 

550.  A  contract  by  one  selling  a  livery 
business,  not  to  engage  in  that  business  in 
opposition  to  the  vendee  in  the  city  where 
it  is  located,  is  not  void  as  in  restraint  of 
trade,  although  not  limited  in  time.  Smith 
V.  Webb,  40:  1 191,  58  So.  913,  176  Ala.  596. 

551.  Where  one  who  had  been  engaged  in 
publishing  a  newspaper  in  a  certain  coun- 
ty sold  the  property  connected  therewith 
and  the  business  and  good  will  to  another,, 
and  agreed  not  to  conduct,  either  directly 
or  indirectly,  any  other  newspaper  in  that 
county  without  the  consent  of  the  other 
party,  his  heirs  and  assigns,  such  a  con- 
tract was  not  void,  as  being  in  general  re- 
straint of  trade,  or  unreasonable  in  its 
terms.  McAuliffe  v.  Vaughan,  33:  255,  70 
S.  E.  322,  135  Ga.  852. 

552.  A  contract  by  one  employed  as  as- 
sistant in  a  dentist's  office,  not  to  engage  ia 
business  in  that  place  or  its  vicinity  in  com- 
petition with  him,  is  not  invalid  r.s  in  re- 
straint of  trade.  Turner  v.  Abbott,  6:  892^ 
94  S.  W.  64,  116  Tenn.  718.  (Annotated) 

553.  A  contract  by  one  selling  his  inter- 


CONTRACTS,  III.  f,  g,  1. 


657 


est  in  the  business  of  curing  and  selling 
meat,  not  to  engage  in  a  competing  business 
within  500  miles  of  the  city  where  the  busi- 
ness is  located,  may  be  construed  to  mean 
that  he  will  not  engage  in  such  business 
either  in  such  city  or  within  500  miles 
thereof,  and  may  be  held  reasonable  and 
enforced  so  far  as  the  city  is  concerned,  al- 
though it  may  be  found  to  be  unreasonable 
as  to  the  exterior  territory.  Fleckenstein 
Bros.  Co.  V.  Fleckenstein  (N.  J.  Err.  & 
App.)   24:  913,  71  Atl.  265,  76  N.  J.  L.  613. 

(Annotated) 

554.  A  lease  ^'hereby  a  corporation  formed 
for  the  local  compression  of  cotton  lets  its 
entire  property,  because  of  the  exigencies 
of  its  financial  situation,  to  another  com- 
press company,  and  agrees  not  to  engage  in 
the  business  of  compression  of  cotton  with- 
in 50  miles  of  any  plant  operated  by  the 
lessee  company,  and  to  aid  the  latter  in  dis- 
couraging unreasonable  and  unnecessary 
competition,  will  be  declared  an  unreason- 
able restraint  of  trade,  and  therefore  void 
on  the  ground  of  public  policy.  Anderson 
V.  Shawnee  Compress  Co.  15:  846,  87  Pac. 
315,  17  Okla.  231.  (Annotated) 
liimitations  as  to  both. 

See  also  Monopoly  and  Combinations,  21, 
24. 

555.  A  contract  by  one  selling  leases  of 
pine  lands  to  another,  who  erects  a  distil- 
lery for  the  manufacture  of  turpentine,  not 
to  engage  in  the  naval-stores  business  with- 
in 10  miles  of  the  place  where  the  distillery 
is  located,  so  long  as  the  purchaser  shall  be 
engaged  in  said  business  at  the  place  men- 
tioned, is  not  invalid  as  contrary  to  public 
policy,  it  appearing  that  those  engaged  in 
naval-stores  business  purchase  the  crude  ma- 
terial, which  is  worked  in  the  distillery. 
Harris  v.  Theus,  10:  204,  43  So.  131,  149 
Ala.  133. 

556.  A  restraint  upon  the  right  of  an 
inexperienced  physician  to  practise  his  pro- 
fession within  a  certain  city  for  a  period  of 
five  years  after  the  termination  of  the  re- 
lations of  the  contracting  parties  is  rea- 
sonable when  imposed  by  an  experienced 
practitioner  there  located,  who,  in  consider- 
ation of  his  agreement  and  his  services  as 
his  assistant,  agrees  to  pay  him  a  monthly 
salary,  introduce  him  to  his  patients,  and 
furnish  him  conveyances  for  the  perform- 
ance of  his  professional  duties.  Freudenthal 
V.  Espey,  26:  961,  102  Pac.  280,  45  Colo.  488. 

(Annotated) 

557.  That  an  agreement  by  a  physician  for 
the  employment  of  an  assistant  may  be  ter- 
minated immediately  after  it  goes  into  ef- 
fect does  not  render  unreasonable  an  agree- 
ment by  the  latter  not  to  practise  his  pro- 
fession in  the  city  for  five  years  after  the 
termination  of  the  relation,  since  the  con- 
tract will  not  be  held  to  apply  in  case  of 
such  termination.  Freudenthal  v.  Espey, 
26:  961,  102  Pac.  280,  45  Colo.  488. 

558.  An  agreement,  as  a  condition  to  ob- 
taining employment  on  a  laundry  route,  not 


ment  or  for  two  years  thereafter,  is  enforce- 
able. Eureka  Laundry  Co.  v.  Long,  35: 
119,  131  N.  W.  412,  146  Wis.  205. 

/.  Ratification;   validating. 

(See   also    same   heading   in  Digest   L.R.A. 

1-10.) 

Of  married  woman's  contract,  see  Husband 

and  Wife,  103. 
Of  infant's  contract,  see  Infants,  75-77. 
Of    agent's    contract,    see    Principal    and 

Agent,  II.  d. 
Of  Sunday  contract,  see  Sunday,  21,  30. 
Question  for  jury  as  to,  see  Trial,  312. 

559.  To  constitute  an  affirmance  of  a 
contract  which  a  party  has  been  wrongfully 
constrained  to  sign,  the  conduct  of  the  in- 
jured party  must  be  such  as  to  indicate  an 
intention  to  condone  the  wrong,  and  a  pur- 
pose to  abide  by  the  consequences.  St.  Louis 
&  S.  F.  R.  Co.  V.  Gorman,  28:  637,  100  Pac. 
647,  79  Kan.  643. 

560.  Conduct  exhibited  in  apparent  recog- 
nition of  a  contract  which  a  party  has  been 
wrongfully  constrained  to  sign,  while  the 
pressure  of  the  hardship  which  overcomes, 
the  mind  continues,  does  not  amount  to  an 
affirmance  thereof.  St.  Louis  &  S.  F.  R. 
Co.  V.  Gorman,  28:  637,  100  Pac.  647,  79 
Kan.  643. 

561.  The  acceptance  and  use  of  a  return 
pass  by  a  shipper  of  stock  who  has  been 
compelled  to  accompany  the  shipment,  after 
the  stock  had  been  transported  and  de- 
livered, cannot  be  held,  as  matter  of  law, 
to  confirm  a  special  written  contract  limit- 
ing the  carrier's  common-law  liability, 
which  had  been  extorted  from  the  shipper, 
who  rightfully  declined  to  sign  it,  by  means 
of  a  refusal  to  transport  the  cattle,  which 
were  already  in  the  carrier's  possession,  un- 
less such  a  contract  was  signed,  although 
the  pass  was  obtained  under  the  terms  of 
such  voidable  contract  upon  its  surrender. 
St.  Louis  &  S.  F.  R.  Co.  v.  Gorman,  28: 
637,  100  Pac.  647,  79  Kan.  643. 

562.  One  who  executes  on  Sunday  a  eon- 
tract  for  the  transportation  of  an  animal, 
which  contains  a  limitation  of  liability 
clause,  does  not  recognize  the  contract  at  a 
time  when  it  might  have  been  legally  made, 
so  as  to  ratify  it  and  prevent  his  relying 
on  its  invalidity,  by  accepting  the  animal 
after  completion  of  the  performance  of  the 
contract  upon  a  week  day.  Lovell  v.  Boston 
&  M.  R.  Co.  34:  67,  78  Atl.  621,  75  N.  H. 
568. 


g.  Remedies; 


proceeds 
contract. 


of     unlawful 


1.  In  general. 

(See  also   same  heading  in  Digest  L.R.A. 

1-10.) 


to   solicit   business  from   the   customers   on 

that  route  for  one's  self  or  a  rival  of  the  |  Effect^  of  partial  invalidity,  see  supra,  409- 
employer,  during  the  term  of  the  employ- 
Digest   1-52  L,.R.A.(N.S.) 


411. 


42 


658 


CONTRACTS,  III.  g,  1, 


Attorney's  duty  to  comply  with  contract  to 
reconvey  to  client  property  transferred 
in  fraud  of  creditors,  see  Attorneys, 
33. 

Remedy  under  ultra  vires  contract,  see  Cor- 
porations, 90. 

Cancelation  of  deed  given  to  defraud  credi- 
tors, see  Fraudulent  Conveyances,  11, 
12. 

Injunction  against  illegal  contract,  see  In- 
junction, 15,  16. 

Injunction  to  protect  rights  in  illegal  con- 
tract, see  Injunction,  02,  63. 

563.  A  plaintiff  who,  to  make  out  a  case, 
must  rely  on  an  illegal  contract,  cannot  re- 
cover, although  the  other  party  has  re- 
ceived a  benefit  from  his  act.  Stirtan  v. 
Blethen,  51:  623,  139  Pac.  618,  —  Wash.  — . 

564.  If  a  party  to  an  illegal  agreement, 
by  proof  of  part  of  the  facts  const'ituting 
the  transaction  out  of  which  it  grew, 
makes  a  prima  facie  case  for  recovery 
against  the  other  party,  without  disclosing 
the  illegality,  the  defendant's  guilty  partici- 
pation in  the  transaction  does  not  preclude 
him  from  proving,  as  matter  of  defense,  the 
illegal  part  of  the  contract.  Lanham  v. 
Meadows,  47:  592,  78  S.  E.  750,  72  W.  Va. 
610.  (Annotated) 

565.  One  who  having  received  an  assign- 
ment of  claims  by  an  employer  of  labor,  in 
consideration  of  his  furnishing  funds  with 
which  to  pay  the  laborers,  gives  a  duebill  in 
satisfaction  of  an  order  upon  himself  by 
the  employer  for  wages  due  for  cutting  tim- 
ber on  government  land,  in  consideration 
of  which  he  requires  an  assignment  by  the 
servant  of  his  claim  against  the  master  in 
order  to  defeat  a  right  to  assert  a  lien  on 
the  timber,  cannot  defeat  liability  thereon 
on  the  ground  that  the  original  contract  was 
void,  since  his  promise  is  a  new  and  inde- 
pendent transaction,  and  not  tainted  by  the 
illegality  of  the  original  agreement.  Owens 
V.  Davenport,  28:  996,  104  Pac.  682,  39  Mont. 
555. 

566.  Taxpayers  of  a  municipality,  who 
have  secured  from  the  municipal  authorities 
a  contract  for  the  issuance  to  them  of 
bonds  which  the  authorities  had  no  power 
to  make,  have  no  standing  in  court  to  con- 
test the  issuance  of  an  injunction  against 
the  municipality  to  prevent  the  issuance  of 
the  bonds.  Hansard  v.  Harrington,  24: 
1273,  103  Pac.  40,  54  Wash.  161. 

567.  The  rule  in  equity  that  contracts  in 
restraint  of  trade  are  merely  unenforceable 
does  not  require  that  the  parties  so  contract- 
ing be  deemed  to  be  immune  from  ordinary 
equitable  remedies,  when  their  violation  of 
public  policy  is  directed  at,  and  actually 
works,  a  public  injury.  State  ex  rel.  Mc- 
Carter  v.  Firemen's  Ins.  Co.  (N.  J.  Err.  & 
App.)  29:  1 194,  73  Atl.  80,  74  N.  J.  Eq.  372.  | 
Cheating;  fraud. 

668.  An  executory  contract  made  for  the 
purpose  of  defrauding  the  creditors  of  one 
of  the  parties  thereto  cannot  be  enforced  by 
either  against  the  other.  Sewell  v.  Norris, 
13:  1118,  58  S.  E.  637,  128  Ga.  824. 

569.  If  the  legal  title  of  the  owner  of 
Digest  1-52  I<.R.A.(N.S.) 


land  whose  deed  is  unrecorded  is  untainted 
by  a  fraudulent  sale  of  the  property  to  de- 
fraud his  creditors,  made  by  procuring  the 
giving  of  a  bond  for  title  by  the  person 
holding  the  record  title,  his  right  to  recover 
possession  of  the  property  will  not  be  de- 
feated if  liis  case  docs  not  involve  the  set- 
ting up  of  the  fraud,  but  the  defense*  is 
compelled  to  set  up  the  fraudulent  transac- 
tion for  the  purpose  of  establishing  an 
equitable  estoppel  or  affirmative  equitable 
rights.  Sewell  v.  Norris,  13:  11 18,  58  S.  E 
637,  128  Ga.  824. 

Contracts    in   ▼iolation    of   statute. 
Estoppel  to  deny  validity,  see  E.stopi'el,  5 

232. 
Validity,   as   between   parties,   of   land   con- 
tract in  violation  of  statute,  see  Vend- 
or AND  Purchaser,  88. 

570.  The  rule  prohibiting  the  mainte- 
nance of  actions  upon  contracts  wherein  the 
plaintiffs  were  guilty  of  moral  turpitude,  or 
which  were  violative  of  a  general  law  passed 
to  eflfectuate  a  public  policy  of  a  state,  ap- 
plies to  actions  to  recover  moneys  or  prop- 
erties lost,  or  damages  sustained,  through 
such  contracts.  Levy  v.  Kansas  City,  22: 
862,  168  Fed.  524,  93  C.  C.  A.  523. 

571.  One  who  loses  his  money  or  proper- 
ty by  knowingly  engaging  in  a  contract  for 
a  transaction  which  involves  his  violation  of 
a  general  law  enacted  to  carry  into  effect 
a  public  policy  of  a  state  cannot  maintain 
an  action  for  his  loss  or  damage  because  the 
acts  of  others  deluded  or  persuaded  him  to 
believe  that  they  would  continue  to  violate 
the  law  or  to  perform  the  illegal  contract. 
Levy  V.  Kansas  City,  22:  862,  168  Fed.  524, 
93  C.  C.  A.  523. 

573.  One  cannot  refuse  to  pay  for  goods 
purchased  for  resale  because  the  contract  un- 
der which  they  were  furnished  to  him  sought 
to  establish  a  monopoly  in  violation  of 
the  anti-trust  laws  by  forbidding  sale  of 
rival  goods  and  fixing  the  price  at  which 
they  should  be  sold.  McCall  Co.  v.  Hughes, 
42:  63,  59  So.  794.  102  Miss.  375. 

574.  The  courts  will  not  enforce  a  con- 
tract to  sell  seed  to  a  partnership  formed 
by  the  principal  buyers  oi  that  commodity 
to  control  the  market  and  suppress  com- 
petition by  fixing  the  price  to  be  paid  for 
the  uncleaned  seed,  the  distribution  among 
themselves  of  offerings,  and  the  price  at 
which  it  shall  be  sold.  Brent  v.  Gay,  41: 
1034,  149  S.  W.  915,  149  Ky.  615. 

(Annotated) 

575.  A  lessee  of  property  to  be  used  for 
the  illegal  sale  of  intoxicating  liquor  who 
is  compelled  to  pay  a  rent  note  because  of 
its  transfer  by  the  lessor  to  an  innocent 
holder  cannot  hold  the  lessor  liable  for  the 
amount  paid,  on  the  theory  that  the  nego- 
tiation of  the  invalid  note  was  wrongful. 
Kdepke  v.  Peper,  41:  773,  136  N.  W.  902, 
155  Iowa,  687. 

576.  Commissions  for  the  illegal  sale  of 
intoxicating  liquors  cannot  be  recovered,  as 
courts  will  not  enforce  payments  promised 
in  consideration  of  services  rendered  in 
criminal  transactions.  Crigler  v.  Shepler, 
23:  500,  101  Pac.  619,  79  Kan.  834. 


-      CONTRACTS,  III.  g,  1. 


659 


577.  A  contract  by  a  corporation  to  pay 
a  certain  amount  in  dividends  on  stock 
within  a  specilied  time  cannot  be  enforced 
if  the  dividends  have  not  been  earned;  at 
least,  where  the  statute  forbids  the  pay- 
ment of  capital  to  stockholders.  Jorguson 
V.  Apex  Gold  Mines,  46:  637,  133  Pac.  465, 
74  Wash.  243.  (Annotated) 

678.  A  contract  between  a  corporation 
and  its  promoter,  providing  for  the  is- 
suance to  him  of  capital  stock  of  the 
corporation,  the  use  of  his  name,  processes, 
and  knowledge  in  erecting  a  refinery  in 
violation  of  a  constitutional  provision,  will 
not  be  enforced  by  the  court,  nor  will  dam- 
ages be  awarded  for  the  breach  thereof. 
\\  ebster  v.  Webster  Refining  Co.  47:697, 
128  Pac.  261,  36  Okla.  168. 

579.  Agents  of  a  foreign  corporation 
which  was  organized  for  legitimate  business 
purposes,  and  has  fully  complied  with  the 
laws  entitling  it  to  do  business  in  the  state, 
cannot  defeat  an  action  by  it  to  compel 
them  to  pay  over  money  belonging  to  it, 
arising  from  goods  sold  and  collections 
made,  on  the  theory  that  it  is  a  trust  or 
monopoly,  either  at  common  law  or  under 
a  statute  making  illegal  contracts  in  re- 
straint of  trade  or  commerce,  although  the 
statute  denies  to  a  foreign  corporation  vio- 
lating its  provisions,  the  right  to  do  busi- 
ness in  the  state.  International  Harvester 
Co.  v.  Smith,  30:  580,  127  N.  W.  695,  163 
Mich.  55.  (Annotated) 

580.  The  administrator  of  an  insurance 
agent  who  granted  a  rebate  on  a  premium 
contrary  to  the  provisions  of  a  statute,  as 
an  inducement  to  take  out  insurance  with 
him,  may,  on  the  ground  of  public  inter- 
est, compel  payment  of  the  unpaid  portion 
of  the  premium,  although  the  parties  were 
in  pari  delicto.  Rideout  v.  Alars,  35:  485, 
54  So.  801,  99  Miss.  199.  (Annotated) 

581.  Money  paid  for  Indian  lands  may  be 
recovered  back  by  the  grantee,  under  a  con- 
tract executed  contemporaneously  with  the 
deed,  whereby  the  grantor  agreed  to  refund 
the  purchase  price  and  pay  for  improve- 
ments, less  a  reasonable  allowance  for  rents 
during  the  time  the  grantee  held  the  land, 
in  case  the  grantee  failed  to  carry  out  the 
terms  of  the  sale,  upon  rescission  of  the 
sale  by  the  grantor  without  compliance 
with  the  contract,  although  the  sale  of  such 
lands  was  forbidden  by  statute,  to  the 
knowledge  of  both  parties,  since,  as  the 
sale  is  only  void,  as  distinguished  from 
illegal,  the  collateral  agreement  to  refund 
is  not  invalidated  thereby.  Tate  v.  Gaines, 
26:  106,  105  Pac.   193,  25  Okla.  141. 

582.  One  who  purchases  timber  at  less 
than  its  value  upon  agreement  to  build  a 
railroad  to  the  property,  under  penalty  of 
additional  payment  upon  failure  to  build 
the  road,  cannot  escape  the  penalty  by  re- 
lying on  the  fact  that  his  undertaking  is 
prohibited  by  statute.  Herring  v.  Cumber- 
land Lumber  Co.  42:  64,  74  S.  E.  1011,  159 
N.  C.  382. 

583.  A  person  who  obtains  a  license  under  [ 
a  city  ordinance  to  conduct  tlie  business  of  j 
book  making  and  pool  selling,   there  being 
Digest   1-52  I..R.A.(N.S.) 


a  general  law  prohibiting  such  business, 
cannot  maintain  an  action  to  recover  back 
the  license  fee,  although,  the  second  day 
after  he  conunenced  his  business,  the  city 
stopped  him,  and  thereafter  continued  to 
prevent  him  from  carrying  it  on,  since,  in 
obtaining  the  license  and  commencing  busi- 
ness thereunder,  he  violated  a  general  law 
enacted  to  effectuate  the  public  policy  of  the 
state.  Levy  v.  Kansas  City,  22:  862,  168 
Fed.  524,  93  C.  C.  A.  523.  (Annotated) 

Gaming    and    ^nrager    contracts. 
Effect  on   broker's   right   to   commission   of 

fact  that  patron  intends  transaction  to 

be  a  mere  wager,  see  Broker,  1. 
Public    policy    against    enforcing   gambling 

contract  of   other   state,   see   Conflict 

OF  Lavfs,  3  3-16. 
See  also  supra,  583. 

584.  A  conditional  vender  is  not  prevent- 
ed from  reclaiming  the  property  under  the 
contract,  by  the  fact  that  the  purchaser  in- 
tends to  use  it  in  a  lottery,  if  such  use  was 
entirely  independent  of  the  contract.  Wat- 
kins  V.  Curry,  40:  967,  147  S.  W.  43.  103  Ark. 
414.  (Annotated) 

585.  A  purchaser  of  a  lottery  ticket  is 
not  precluded  from  recovering  the  purchase 
price,  by  the  rule  of  law  forbidding  a  re- 
covery of  the  consideration  paid  upon  an 
executed  contract  prohibited  by  statute, 
where  the  act  declaring  the  sale  of  lottery 
tickets  to  be  illegal  imposes  a  penalty  upon 
the  vendor  only,  and  .was  evidently  intended 
for  the  protection  of  the  purchasers  of  such 
tickets.  Becker  v.  Wilcox,  16:  571,  116  N. 
W.  160,  81  Neb.  476.  (Annotated) 

586.  A  contract  for  the  purchase  of  a 
store  and  business  where  a  part  of  the  goods 
and  fixtures  purcliased  consist  of  a  number 
of  slot  machines  kept  in  use  in  the  store 
for  the  purpose  of  gambling,  and  thereby 
stimulating  and  increasing  the  business,  is 
an  illegal  contract,  and  so  long  as  the  same 
remains  executory  may  be  repudiated  and 
rescinded,  and  money  paid  thereon  may  be 
recovered  back  by  the  person  paying  tlie 
same.  Mueller  v.  William  F.  Stoecker  Cigar 
Co.  34:  573,  131  N.  W.  923,  89  Neb.  436. 

587.  One  induced  to  bet  money  upon  a 
foot  race,  in  the  belief  that  it  was  agreed 
between  the  participants  that  the  one  upon 
which  he  bets  should  win,  and  upon  the 
understanding  that  the  stake  holder  would 
return  to  him  the  amount  of  his  wager  as 
soon  as  the  opposite  betters  put  up  their 
money,  although  in  pari  delicto  with  the 
other  conspirators,  may  recover  from  the 
stakeholder,  where  he  denounced  the  scheme 
and  demanded  his  money  of  the  stakeholder 
before  the  race  was  run.  Falkenberg  v. 
Allen,  10:  494,  90  Pac.  415,  18  Okla.  210. 

588.  Public  policy  requires  the  granting 
of  relief  to  one  defrauded  into  betting  on 
a  fictitious  race  by  a  gang  of  men  who  have 
made  a  practice  of  thus  defrauding  persons, 
although  plaintiff  has  been  led  into  the 
trap  by  promises  of  a  share  in  the  profits, 
and  has  intended,  in  the  particular  in- 
stance, to  assist  in  defrauding  some  other 
person.  Hobbs  v.  Boatright,  5:  906,  93  S. 
W.  934,  195  Mo.  693.  (Annotated) 


660 


CONTRACTS,  III.  g,  2. 


589.  The  drawer  of  a  bank  check  is  not 
released  from  liability  thereon  by  proof  that 
the  check  was  given  for  the  purpose  of  ob- 
taining money  with  which  to  gamble,  where 
the  finding  of  the  jury,  which  is  supported 
by  the  evidence,  is  that  the  person  to  whom 
the  check  was  given  had  no  knowledge  that 
the  money  was  to  be  used  for  such  unlawful 
purpose.  Camas  Prairie  State  Bank  v.  New- 
man, 21 :  703,  99  Pac.  833,  15  Idaho,  719. 

590.  That  the  acceptor  of  a  draft  the  pro- 
ceeds of  which  are  to  furnish  margins  in  an 
illegal  transaction  in  futures  was  not  a 
party  to  the  illegal  transaction  does  not 
prevent  his  setting  up  the  illegality  of  such 
transaction  out  of  which  the  consideration 
for  the  acceptance  grew,  to  defeat  liability 
thereon.  Burrus  v.  VVitcover,  39:  1005,  74 
S.  E.  11,  158  N.  C.  384.  (Annotated) 

591.  A  court  will  not  enforce  a  promise 
to  repay  money  advanced  for  use  in  buying 
stocks  on  margins  on  account  of  the  one 
making  the  advance.  Lancaster  v.  Ames, 
17:  229,  68  Atl.  533,  103  Me.  87. 

592.  Money  deposited  with  the  keeper  of 
a  bucket  shop  to  cover  fictitious  contracts 
of  sale  or  purchase  for  future  delivery  of 
stocks,  with  the  intention  that  there  should 
be  no  delivery  but  a  settlement  according  to 
the  difference  in  the  market  value  thereof, 
cannot  be  recovered  after  loss,  in  the  absence 
of  a  statute,  since  the  contract  is  a  gam- 
bling transaction  as  to  which  the  courts 
will  leave  the  parties  where  it  finds  them. 
Ives  V.  Boyce,  25:  157,  123  N,  W,  318,  85 
Neb,  324. 

593.  Transactions  in  a  bucket  shop,  con- 
sisting of  fictitious  contracts  of  sale  or  pur- 
chase of  stocks  for  future  delivery,  with 
the  intention  that  there  should  be  no  de- 
livery, but  a  settlement  by  paying  the  dif- 
ference of  prices,  do  not  constitute  the  play- 
ing of  a  "game  of  hazard"  within  the  pur- 
view of  a  statute  providing  that  money  lost 
by  means  of  a  "game  of  hazard  of  any  kind" 
may  be  recovered,  where  such  form  of  gam- 
bling is  not  included  among  those  enumerat- 
ed in  the  preceding  part  of  the  statute. 
Ives  V.  Boyce,  25:  157,  123  N,  W.  318,  85 
Neb.  324.  (Annotated) 

594.  A  telegraph  wire,  blackboard,  and 
ticker  used  in  a  bucket  shop  in  obtaining 
and  publishing  the  rise  and  fall  of  prices 
in  a  stock  market,  do  not  constitute  a 
"gambling  device"  within  the  meaning  of 
a  statute  providing  that  money  lost  by 
means  of  a  "gambling  device"  may  be  re- 
covered. Ives  v.  Boyce,  25:  157,  123  N.  W, 
318,  85  Neb,  324. 

2.  Contracts  against  public  policy. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Aid  of  court  in  determining  rights  of  par- 
ties to  partnership  maintaining  illicit 
sexual  relations,  see  Partnership,  63, 

Replevin  to  recover  property  intended  for 
illegal  use,  see  Replevin,  5. 

Demurrer  to  evidence  in  action  on  illegal 
note,  see  Trial,  791. 

Digest  1-52  I<.R.A.(N.S.) 


595.  While  public  policy  forbids  the  en- 
forcement of  an  illegal  or  immoral  contract, 
it  is  equally  insistent  on  the  enforcement  of 
contracts  which  are  lawful,  and  contravene 
none  of  its  rules.  Stroemer  v.  Van  Orsdel, 
4:  212,  103  N.  W.  1053,  74  Neb.  132. 

596.  Where  a  contract  on  which  an  action 
is  founded  is  contra  bonos  mores,  or  forbid- 
den by  express  law,  defendant  may  plead 
its  invalidity,  even  though  he  is  a  partici- 
pator in  the  wrong.  Standard  Lumber  Ca 
v.  Butler  Ice  Co.  7:  467,  146  Fed.  359,  76  G 
C,  A.  39. 

597.  There  can  be  no  recovery  on  quan- 
tum meruit  for  considerations  furnished 
under  a  contract  which  is  void  for  reasons 
of  public  policy.  Cole  v.  Brown-Hurley 
Hardware  Co.  18:  1161,  117  N.  W.  746,  139 
Iowa,  487. 

598.  No  compensation  can  be  recovered 
by  a  salesman  for  services  rendered  under 
a  contract  which  contained  a  provision  for 
reimbursing  him  a  certain  sum  to  be  al- 
lowed purchasing  agents  for  turning  busi- 
ness his  way.  Smith  v.  David  B.  Crockett 
Co.    39:  1148,    82    Atl.    569,   85    Conn.    282. 

( Annotated ) 

599.  One  who  enters  into  a  contract  with 
a  vote  buyer  to  prosecute  the  sellers  for 
the  statutory  rewards,  and  share  the 
amounts  recovered,  cannot,  after  securing 
convictions,  maintain  an  action  for  the  re- 
wards, although  he  has  settled  with  the 
buyer,  since,  the  buyer  not  being  entitled 
to  recover,  on  grounds  of  public  policy,  he 
cannot  recover  as  his  assignee,  and  he  can- 
not recover  his  own  share  by  calling  upon 
the  court  to  make  an  apportionment  under 
the  contract,  since  it  is  illegal.  Mount  v. 
Montgomery  County,  14:  483,  80  N,  E,  629, 
168  Ind.  661. 

600.  A  person  who  has  entered  into  a  con- 
tract with  a  board  of  county  commissioners 
to  discover  taxable  property  which  has 
escaped  the  notice  of  assessors,  and  has  in 
part  rendered  the  specified  services,  cannot 
recover  therefor  on  a  quantum  meruit,  since 
he  is  presumed  to  know  the  illegality  of  the 
contract,  and  that  his  performance  of  the 
services  is  against  public  policy.  State  ex 
rel.  Coleman  v.  Fry,  16:  476,  95  Pac,  392,  77 
Kan.  540, 

601.  One  who  has  deeded  land  in  consider- 
ation that  the  grantee  will  not  protest 
against  his  application  for  a  patent  for  gov- 
ernment land  cannot,  on  the  latter's  failure 
to  comply  with  his  contract,  maintain  an 
action  to  rescind  the  deed,  since  the  con- 
sideration being  against  public  policy  he  has 
no  right  to  go  into  court  for  relief.  Roy 
V.  Harney  Peak  Tin  Min.  Mill.  &  Mfg.  Co, 
9:  529,  110  N.  W.  106,  21  S.  D.  140. 

602.  The  assignee  of  the  equipment  of  a 
postotfice  which  the  owner  had  previously 
assigned  to  the  postmaster  in  consideration 
of  his  locating  the  office  in  a  certain  build- 
ing cannot  maintain  trover  for  its  value, 
against  postmaster,  since  the  prior  con- 
tract of  assignment  is  void,  and  the  parties- 
are  in  pari  delicto.  Benson  v.  Bawden, 
13:  721,  113  N.  W.  20,  149  Mich.  584. 

603.  An  action  for  dama»s  for  breach  of 


CONTRACTS,  III.  g,  2. 


661 


an  option  contract  will  lie,  though  the  con- 
tract is  not  specifically  enforceable  because 
the  equitable  interest  thereby  created  ia 
too  remote  under  the  rule  against  perpetui- 
ties. Worthing  Corp.  v.  Heather,  4  B. 
R.  C.  280,  [1909]  2  Ch.  532.  Also  Reported 
in  75  L.  J.  Ch.  N.  S.  761,  22  Times  L.  R. 
750,  4  L.  G.  R.  1179,  95L.  T.  N.  S.  718. 

( Annotated ) 

604.  Money  paid  under  a  marriage  brok- 
age  contract  can  be  recovered  back  by  the 
person  who  paid  it,  although  the  other  par- 
ty to  the  contract  has  brought  about  intro- 
ductions witli  other  persons  with  a  view 
to  bringing  about  a  marriage,  and  has  in- 
curred expense  in  so  doing.  Hermann  v. 
Charlesworth,  3  B.  R.  C.  C29  [1905]  2  K. 
B.  123.  Also  Reported  in  74  L.  J.  K.  B.  N. 
S.  620,  54  Week.  Rep.  22,  93  L.  T.  N.  S. 
284,  21  Times  L.  R.  368. 

Invalid  lease. 

605.  A  property  owner  cannot  recover 
rent  under  a  lease  when  one  of  liis  under- 
takings therein,  which  is  not  separable  from 
the  remainder  of  the  contract,  is  void  as 
against  public  policy.  Cole  v.  Brown-Hur- 
ley Hardware  Co.  i8:  ii6i,  117  N.  W.  746, 
139  Iowa,  487. 

To  aid  in   setting  aside  will. 

606.  A  contract  by  a  widow  who  has  been 
given  a  life  estate  in  her  husband's  prop- 
erty to  devise  to  certain  of  the  remainder- 
men who  were  named  as  executors  a  portion 
of  the  estate  if  they  would  assist  her  in  set- 
ting aside  the  will,  against  which  no  valid 
objection  exists,  is  invalid  as  against  pub- 
lic policy,  and  cannot  be  enforced  against 
her  executors,  heirs,  and  devisees,  notwith- 
standing the  fact  that  by  means  of  the 
promise  she  secures  tlie  whole  property. 
Gugolz  V.  Gehrkens,  43:  575,  130  Pac.  8,  164 
Cal.  596.  (Annotated) 

607.  The  mere  fact  that  a  remainderman 
under  his  uncle's  will  had  been  living  in 
his  uncle's  family,  and  was  barely  of  age 
when  he  agreed  to  aid  his  avmt  in  setting 
aside  the  will  in  consideration  that  she 
would  provide  for  him  in  her  will,  does  not 
show  that  he  was  so  subject  to  her  influence 
as  not  to  be  in  pari  delicto,  where  nothing 
in  the  nature  of  oppression,  duress,  undue 
influence,  or  the  taking  advantage  of  his 
necessities  or  weakness  on  her  part,  is 
shown.  Gugolz  v.  Gehrkens,  43:  575,  130 
Pac.  8,  164  Cal.  596. 

To  institute  recall  election. 

Employment  of  agent  to  institute  and  car- 
ry out  movement  for  recall  election, 
see  Contracts,  451,  608. 

608.  An  agent  Avho  expends  money  to  in- 
stitute and  carry  out  a  recall  election,  un- 
der promise  of  his  principal  to  defray  the 
expenses,  cannot,  upon  tne  contract  being 
declared  invalid,  hold  the  principal  liable  to 
reimburse  him  for  his  outlay  on  the  theory 
that  when  an  agreement  has  been  fully  exe- 
cuted, the  one  profiting  by  it  will  not  be 
permitted  to  defeat  an  action  by  the  other 
party  for  money  had  and  received  upon  the 
ground  of  illegality.  Stirtan  v.  Blethen, 
51:  623,  139  Pac.  618,  79  Wash.  10. 
Digest   1-52  L.R.A.(N.S.) 


Taking   excessive   interest. 

609.  An  assignment  of  an  expectancy  to 
secure  a  loan  with  exorbitant  interest  will 
be  enforced  in  equity  only  to  the  extent  of 
repayment  of  the  loan  with  reasonable  in- 
terest. Bridge  v.  Kedon,  43:  404,  126  Pac. 
149,  163  Cal.  493. 

>Vitli  attorney. 

610.  The  parties  to  a  contract  by  which 
a  layman  agrees  to  find  cases  and  a  lawyer 
to  conduct  them  through  the  courts,  in  con- 
sideration of  a  division  of  fees  received  by 
the  latter,  are  in  pari  delicto;  and  neither 
should  be  permitted  to  assert  alleged  rights 
accruing  thereunder.  Holland  v.  Sheehan, 
23:  510,  122  N.  W.  1,  108  Minn.  362. 

611.  No  recovery  on  quantum  meruit  can 
be  had  by  an  attorney  for  services  rendered 
under  a  contract  by  which  he  undertakes 
to  carry  on  litigation  without  cost  to  his 
client,  for  a  share  in  the  recovery,  which 
was  void  for  champerty.  Roller  v.  Murray, 
38:  1202,  72  S.  E.  665,  112  Va.  780. 

(Annotated) 

612.  A  provision  in  an  agreement  between 
attorney  and  client  entitling  him  to  a  per- 
centage of  the  recovery  falls  with  a  provi- 
sion forbidding  the  client  to  settle  the  case 
without  his  consent,  which  is  against  public 
policy;  and  the  attorney  may  recover  the 
real  value  of  the  services  actually  rendered. 
Re  Snyder,  14:  iioi,  82  N.  E.  742,  190  N.  Y. 
06. 

AfiPecting   marriage    relation. 

613.  No  recovery  can  be  had  on  quantum 
m,eruit  for  obtaining  evidence  and  securing 
a  divorce.  Barngrover  v.  Pettigrew,  2:  260, 
104  N.  W.  904,  128  Iowa,  533.  (Annotated) 
Public    contracts. 

614.  No  recovery  can  be  had  for  breach  of 
a  contract  by  a  municipal  corporation  to  lo- 
cate public  buildings  at  a  certain  place  in 
consideration  of  a  donation  toward  the  ex- 
pense, since  the  contract  is  void  as  against 
public  policy.  Edwards  v,  Goldsboro,  4:  589, 
53  S.  E.  652,  141  N.  C.  60.         (Annotated) 

615.  One  bidding  for  a  public  contract 
has  no  right  of  action  against  a  notary 
public  who,  in  violation  of  an  injunction 
to  secrecy,  underbids  him  by  the  use  of  in- 
formation gained  in  furnishing  assistance, 
for  a  fee,  in  the  preparation  and  verifica- 
tion of  the  necessary  bond,  and  thereby  se- 
cures the  contract  himself,  at  least,  where 
an  express  promise  to  refrain  from  bidding 
would  be  illegal,  as  a  conspiracy  to  sup- 
press competition  for  public  work.  Hardi- 
son  V.  Reel,  34:  1098,  70  S.  E.  463,  154  N. 
C.   273. 

616.  That  a  municipal  corporation  has  re- 
ceived and  made  use  of  merchanaise  under 
a  void  contract  with  a  councilman  does  not 
create  an  obligation  to  pay  for  it.  Bay 
V.  Davidson,  9:  1014,  111  N.  W.  25,  133  Iowa, 
688.  (Annotated) 

617.  One  who  has  performed  public  print- 
ing under  a  contract  void  because  the  mu- 
nicipality discriminated  in  favor  of  union 
labor  in  awarding  it  will  not  be  compelled 
to  return  money  already  received  therefor, 
where  the  price  was  not  unreasonable  and 
the  suit  is  in  equity,  not  begun  until  the 


662 


CONTRACTS,  IV.  a,  b,  1. 


time  arrived  for  performing  the  contract, 
and  no  preliminary  injunction  was  asked, 
while  the  nisi  prius  court  upheld  the  va- 
lidity of  the  contract,  so  that  the  perform- 
ance could  flot,  for  a  time,  have  been  avoid- 
ed. Jliller  V.  Des  Moines,  23:  815,  122  N.  W. 
226,  143  Iowa,  409. 
To  compound  crime. 

618.  The  payee  of  a  note  given  to  com- 
pound a  felony  cannot,  although  he  could 
not  have  enforced  it  himself,  be  compelled 
to  reimburse  the  maker  in  case  he  is  com- 
pelled to  pay  it  to  a  bona  fide  purchaser 
without  notice  before  maturity,  since  the 
parties  being  in  pari  delicto,  the  law  will 
aid  neither  party,  American  Nat.  Bank  v. 
Madison,  38:  597,  137  S.  W.  1076,  144  Ky. 
152. 

619.  That  an  instrument  was  given  to 
compound  a  felony  will  not  deprive  the  one 
executing  it  of  the  aid  of  the  court  to  have 
it  set  aside,  if  its  execution  was  procured 
by  duress,  menace,  or  undue  influence.  Col- 
by V.  Title  Ins.  &  T.  Co.  35:  813,  117  Pac. 
913,  160  Cal.  632. 

IV.  Performance;    breach. 

a.  In  general. 

(See   also   same   heading   in  Digest   L.R.A. 

1-10.) 

Presumption  that  contract  will  be  per- 
formed, see  Appeal  and  Error,  439. 

Recovery  back  of  money  paid  on  unper- 
formed  contract,   see   Assumpsit,   13. 

Liability  for  preventing  performance  of, 
see  Case,  II. 

Certiorari  to  annul  order  restraining  per- 
formance of  contract,  see  Cektiorabi, 
10. 

Right  to  recover  value  of  services  under 
parol  agreement  to  convey  land  in  ac- 
tion for  damages  for  breach  of  contract, 
see  Election  of  Remedies,  1. 

Retaining  jurisdiction  on  suit  for  specific 
performance  to  administer  complete 
justice,  see  Equity,  121. 

Bar  to  action  to  recover  on  quantum  m,eruit, 
see  Judgment,  199. 

Mandamus  to  enforce  performance,  see 
Mandamus,  15,  88,  92. 

See  also  supra,  405. 

620.  No  recovery  can  be  had  for  failure  to 
take  material  according  to  the  terms  of  a 
contract  if  it  never  became  binding  because 
of  failure  to  reduce  it  to  writing  and  fur- 
nish a  bond  for  performance,  as  required  by 
the  oral  agreement.  Lynch  v.  Snead  Archi- 
tectural Iron  Works,  21:852,  116  S.  W. 
693,  132  Ky.  241. 

621.  One  who  purchases  from  infants,  up- 
on their  reaching  their  majority,  land  which 
they  had  conveyed  to  another  during  minor- 
ity, under  a  contract  to  repay  the  latter 
what  he  had  paid  the  infants,  must  comply 
with  his  contract  before  he  can  secure  pos- 
session of  the  property.  Beauchamp  v.  Ber 
tig,  23:  659,  119  S.  W.  75,  00  Ark.  351. 
Digest   1-52  L.R.A.(N.S.) 


Recovery  for  extra   ivork. 

See  also  infra,  707,  708. 

622.  Wh(ye  a  building  contract  provides, 
in  substance,  that  no  additions  or  altera- 
tions made  during  the  progress  of  the  work 
shall  be  regarded  as  extra  work  unless 
agreed  to  in  writing,  signed  by  the  parties 
before  such  work  is  begun,  the  mere  per- 
formance of  extra  work  without  such  writ- 
ten agreement  will  not  give  rise  to  an  im- 
plied waiver  of  the  provisions  of  the  con- 
tract in  that  respect.  Headley  v.  Cavileer, 
(N.  J.  Err.  &  App.)  48:  564,  82  Atl.  908, 
82  N.  J.  L.  635.  (Annotated) 

623.  A  building  contractor  who,  with  the 
knowledge  and  consent  of  the  owner,  and 
under  direction  of  the  architect,  but  with- 
out a  written  order,  performs  extra  work, 
entailing  additional  expense,  is  not  pre- 
cluded from  recovering  reasonable  compen- 
sation therefor  by  a  clause  of  the  contract 
providing  that  no  alteration  shall  be  made 
in  the  work  done  or  described  by  the  draw- 
ings and  specifications,  except  upon  a  writ- 
ten order  from  the  architect.  Jobst  v.  Hay- 
den  Bros.  50:  501,  121  N.  W.  957,  84  Neb. 
735. 

624.  One  who  contracted  to  construct  a 
house  in  a  workmanlike  manner,  according 
to  specifications  showing  the  dimensionis 
and  manner  of  laying  the  cellar  wall,  may, 
in  case,  at  the  direction  of  the  owner,  he , 
enlarges  the  wall,  lays  it  in  cement,  and 
lines  the  underpinning  with  brick,  in  view  of 
conditions  of  soil  disclosed  by  the  excavation, 
hold  the  owner  liable  for  the  extra  work, 
and  may  therefore  recover  on  his  promise 
to  pay  extra  compensation,  although  a  wall 
laid  in  mortar,  as  called  for  by  the  specifi- 
cations, would  not  have  held  the  building. 
Creamery  Package  Mfg.  Co.  v.  Russell,  32: 
135,  78  Atl.  718,  84  Vt.  80. 

625.  The  completion  to  the  satisfaction  of 
the  owner's  engineers  of  a  portion  of  a  tun- 
nel timbered  in  a  manner  designated,  with 
the  material  furnished,  by  them,  relieves 
the  contractor  from  responsibility  for  the 
caving  in  of  the  work,  or  the  cost  of  repair- 
ing the  injury,  although  the  contract  is  entire 
for  the  construction  of  the  tunnel  for  an  en- 
tire sum.  McConnell  v.  Corona  City  Water 
Co.  8:  1 171,  85  Pac.  929,  149  Cal.  60. 

(Annotated) 

b.  Excuse  for  failure  of  performance. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

What  excuses  discharge  of  servant,  see 
Master  and  Servant,  113-122. 

Duty  of  seller  to  tender  consideration  to 
buyer  in  order  to  hold  him  liable  for 
breach,  see  Tender,  5. 

Right  to  compel  water  company  to  furnish 
general  supply  while  municipal  cor- 
poration is  in  default  in  paying  hy- 
drant rentals,  see  Waters,  354. 

626.  One  undertaking  to  erect  a  building 


CONTRACTS,  IV.  b,  2,  3. 


663 


in  freezing  weather,  and  to  do  a  first-class 
job,  cannot  be  relieved  from  his  obligation 
because  of  the  settling  of  foundations  due  to 
the  weather.  Brent  v.  Head,  W.  &  Co.  i6: 
8oi,  115  N.  W.  1106,  138  Iowa,  146. 

(Annotated) 

627.  One  who  has  contracted  to  take  care 
of  another  for  life  is  not  justified  in  send- 
ing him  to  the  poorhouse  when  his  physical 
condition  becomes  such  that  his  care  is  a 
great  hardship.  Ptacek  v.  Pisa,  14:537,  83 
N.  E.  221,  231  111.  522. 

628.  Whether  the  duty  which  a  railroad 
corporation  owes  to  the  public  as  a  common 
carrier  is  materially  and  injuriously  affect- 
ed by  its  contract  obligation  to  maintain  a 
spur  track,  depot,  and  platforms  at  a  cer- 
tain place,  so  as  to  excuse  it  from  perform- 
ing its  agreement,  cannot  be  arbitrarily  de- 
termined by  the  corporation  itself,  but  the 
private  rights  involved  should  be  adjusted 
by  agreement  or  by  resort  to  the  courts. 
Taylor  v.  Florida  East  Coast  R.  Co.  16:  307, 
45  So.  574,  54  Fla.  635. 

629.  The  mere  increased  cost  of  produc- 
tion of  coal  because  of  the  necessity  of 
suppressing  a  strike  at  a  mine  will  not  jus- 
tify breach  of  a  contract  to  deliver  a  cer- 
tain amount  of  coal  from  that  mine  at  a 
certain  price,  "subject  to  strikes  beyond  the 
control"  of  the  seller,  which  might  delay  or 
prevent  shipment.  Cottrell  v.  Smokeless 
Fuel  Co.  9:  1 187,  148  Fed.  594,  78  C.  C.  A. 
366.  (Annotated) 

630.  One  who  engages  accommodations  at 
a  hotel  for  a  party,  promising  that  they 
will  occupy  and  utilize  them,  is  personally 
liable  for  the  contract  price  in  case  the 
party  upon  arriving  refuses  to  accept  the 
accommodations  and  goes  elsewhere.  Dan- 
enhower  v.  Hayes,  33:  698,  35  App.  D.  C.  65. 

(Annotated) 

2.  Impossibility    of    performance ;    in- 
evitable accident. 

(See   also    same   heading   in   Digest   L.R.A. 
1-70.) 

As  affecting  right  to  recover  on  part  per- 
formance, see  infra,  652,  653. 

Illness.  '  -^ 

631.  In  the  absence  of  a  provision  in  the 
contract  to  the  contrary,  one  cannot  justi- 
fy a  failure  to  perform  personal  services 
on  account  of  sickness,  so  as  to  be  entitled 
to  recover  the  stipulated  compensation. 
Davidson  v.  Gaskill,  38:  692,  121  Pac.  649, 
32  Okla.  40. 

632.  The  fact  that  one  is  unable  to  per- 
form his  contract  specifically  because  of  the 
infancy  of  his  co-contractor  will  not,  Avhere 
his  promise  is  not  conditional  upon  li,is 
ability  to  perform,  exonerate  Iiim  from  li- 
ability for  nonperformance.  Prince  v.  Ha- 
worth,  2  B.  R.  C.  629,  [1905]  2  K.  B.  708. 
Also  Reported  in  92  L.  T.  N.  S.  773,  21 
Times  L.  R.  402,  75  L.  J.  K.  B.  N.  S.  92,  54 
Week.  Rep.  249. 

Statute    invalidating    contract. 

633.  A  railroad  company  whose  contract 
Digest   1-52  L.R.A.(N.S.) 


to  give  annual  passes  in  consideration  of  a 
right  of  way  is  invalidated  by  statute,  after 
it  has  taken  possession  of  the  right  of  way, 
is  bound  to  compensate  the  grantor  in  cash 
for  the  value  of  the  property  taken  less  the 
value  of  the  passes  already  received  by  him. 
Louisville  &  N.  R.  Co.  v.  Crowe,  49:  848, 
160  S.  W.  759,  156  Ky.  27.         (Annotated) 

634.  A  carrier  which  contracted  to  give 
annual  passes  in  consideration  of  a  grant 
of  land  is  not  liable  in  damages  for  refusal 
of  further  passes  before  the  expiration  of 
the  contract  period,  in  obedience  to  a  stat- 
ute making  the  giving  of  passes  illegal. 
Cowlev  V.  Northern  P.  R.  Co.  41:  559,  123 
Pac.  998,  68  Wash.  558.  (Annotated) 
Inevitable  accident;  act  of  God. 

See  also  infra,  653. 

635.  The  destruction  of  a  bridge  by  ex- 
traordinary flood  is  within  the  obligation 
of  a  bond  requiring  the  builder  to  replace 
it  if  removed  from  any  cause,  fire  excepted, 
within  a  certain  period.  Mitchell  v.  Wes- 
ton,  15:  833,  45   So.  571,  91   Miss.  414. 

(Annotated) 

636.  The  obligation  of  one  who  has  un- 
dertaken to  erect  a  building  for  another  is 
not  afl'ected  by  a  provision  in  a  bond  given 
in  accordance  with  a  requirement  of  the 
contract,  to  provide  for  its  faithful  perform- 
ance, to  the  eff'ect  that  neither  he  nor  his 
surety  shall  be  liable  for  any  damage  result- 
ing from  an  act  of  God.  Milske  v.  Steiner 
Mantel  Co.  5:  1105,  63  Atl.  471,  103  Md.  235. 

637.  That  the  plans  upon  which  a  con- 
tractor undertakes  to  construct  a  building 
are  so  defective  that  the  building  falls  in 
the  course  of  construction  does  not  relieve 
him  from  liability  for  the  loss,  or  entitle 
him  to  abandon  his  contract,  and  retain  the 
compensation  he  has  received  under  it. 
Lonergan  v.  San  Antonio  Loan  &  T.  Co.  22: 
364,  104  S.  W.  1061,  101  Tex.  63. 

3.  Prevention    or    hindrance    by    other 
party. 

(See   also    same   heading   in  Digest   L.R.A. 
1-10.) 

See  also  supra,  170;  infra,  649,  780;  Dam- 
ages, 226,  230. 

638.  The  question  of  the  good  or  bad 
faith  of  the  architect  to  whose  satisfaction 
and  under  whose  direction  work  upon  a 
building  is  to  be  done,  in  failing  to  pass 
upon  plans  and  drawing  for  changes  in  the 
work  so  that  its  completion  is  delayed,  is 
immaterial  in  determining  the  responsi- 
bility of  the  owner  for  such  delays,  so  as  to 
prevent  his  taking  advantage  of  provisions 
in  the  contract  for  stipulated  damages  for 
failure  to  complete  the  work  within  a  speci- 
fied time.  Mosler  Safe  Co.  v.  Maiden  Lane 
Safe  Deposit  Co.  37:  363,  93  N.  E.  81,  199 
N.  Y.  479. 

639.  A  building  contractor  cannot  hold  a 
materialman  liable  for  the  penalty  which 
he  is  compelled  to  pay  under  his  contract, 
for  failure  to  complete  the  building  within 
a   specified   time   because   the   materialman 


664 


CONTRACTS,  IV.  c,  1. 


fails  to  furnish  the  materials  promptly,  if 
he  is  prevented  from,  doing  so  by  the  fail- 
ure of  the  contractor  to  send  in  the  orders 
with  the  specifications  in  time.  Camp- 
field  V.  Sauer,  38:  837,  189  Fed.  576,  111 
C.  C.  A.  14. 

640.  Where  a  building  contract  in  which 
there  is  a  damage  clause  for  nonperform- 
ance by  a  certain  time  provides  for  pay- 
ment by  the  owner  of  monthly  estimates, 
any  delays  caused  by  the  wrongful  with- 
holding of  such  payments  are  excused,  but 
the  wrongful  withholding  of  the  payment 
of  monthly  estimates  does  not  excuse  per- 
formance within  the  stipulated  time  unless 
such  conduct  prevents  performance,  nor  re- 
lieve the  builder  from  damages  where  the 
delay  in  completion  of  the  house  is  due  to 
other  and  independent  causes.  Chamberlin 
V.  McLeroy,  35:  1223,  70  S.  E.  569,  135  Ga. 
719.  (Annotated) 

641.  One  who  contracts  for  the  perform- 
ance of  the  labor  upon  his  property,  to  be 
completed  by  a  certain  day,  and  obligates 
himself  to  furnish  the  necessary  material, 
and  prepare  the  property  for  the  perform- 
ance of  the  work,  is  liable  to  the  contractor 
for  the  reasonable  worth  and  value  of  the 
work  which  he  performs,  and  for  any  loss 
sustained  by  him  if  he  is  delayed  beyond 
the  time  specified  in  the  performance  of 
the  work  by  the  default  of  the  owner. 
Indianapolis  Northern  Traction  Co.  v.  Breu- 
nan,  30:  85,  87  N.  E.  215,  90  N.  E.  65,  174 
Ind.  1. 

c.  Incomplete  performance;  sufficiency 
of  performance. 

1.  Right  of  recovery  on  part  perform- 
ance. 

(Bee  also  same  heading  in  Digest  L.R.A. 
t-10.) 

Part  performance  to  satisfy  statute  of 
frauds,  see  supra,  I.  e,  6. 

Election  of  remedy  preventing  recovery  on 
quantum  meruit,  see  Election  of 
Remedies,  33. 

On  employer's  refusal  to  comply  with  con- 
tract, see  Masteb  and  Servant,  S3,  84. 

See  also  infra,  782. 

642.  Where  a  contract  is  entire,  and  one 
party,  not  in  default,  is  willing  to  complete 
its  performance,  the  other  party,  who  aban- 
dons the  contract  or  refuses  to  perform  it 
cannot  recover,  on  the  contract  or  on  a 
quantum  meruit,  the  value  of  the  labor  he 
has  expended  in  its  partial  performance. 
Johnson  v.  Fehsefeldt,  20:  1069,  118  N.  W. 
797,  106  Minn.  202. 

643..  Where  services  had  been  performed 
under  a  contract  requiring  the  rendition  of 
personal  services  for  a  specified  time,  and 
the  benefits  accepted  by  the  employer,  the 
employee,  in  case  he  leaves  the  service  be- 
fore the  time  expires,  may  sue  on  quantum 
m,eruit,  and  recover  the  reasonable  value 
of  the  services  rendered,  such  action  being 
subject  to  the  defendant's  rights  for  the 
Digest  1-52  L.R.A.(N.S.) 


breach   of   the  contract.     Davidson   v.  Gas- 
kill,  38:  692,  121  Pac.  649,  32  Okla.  40. 

644.  One  who  breaks  his  contract  to  sup- 
port another  for  life  cannot  recover  on  a 
quantum  meruit  for  board  furnished. 
Ptacek  V.  Pisa,  14:  537,  83  N.  E.  221,  231 
111.   522.  (Annotated) 

645.  One  failing  fully  to  perform  his  con- 
tract to  support  his  mother  in  considera- 
tion of  a  note  of  a  certain  amount,  given 
him  by  her,  is  entitled  to  recover  only  the 
proportional  value  of  the  services  actually 
performed.  Sullivan  v.  Sullivan,  7:  156,  92 
S.  W.  966,  122  Ky.  707. 

646.  The  rules  permitting  a  builder  to 
recover  upon  an  entire  building  contract 
only  substantially  performed,  less  damages 
for  incompleteness,  apply  to  an  entire  con- 
tract for  supervision  of  the  execution  by 
an  architect.  Foeller  v.  Heintz,  24:  327,  118 
N.  W.  543,  137  Wis.   169.  (Annotated) 

647.  In  permitting  recovery  upon  an  en- 
tire building  contract  but  substantially 
performed,  the  aim  should  be  to  give  the 
proprietor,  in  substance  and  as  near  as 
practicable,  the  thing  contracted  for,  not 
merely  in  value,  but  in  form  and  substance. 
Foeller  v.  Heintz,  24:  327,  118  N.  W.  543, 
137  Wis.  169. 

648.  In  case  of  good-faith  efforts  to  per- 
form a  building  contract,  resulting  in  a 
structure  satisfying  in  all  essentials  tlie 
purpose  of  the  owner,  and  incomplete  only 
in  a  particular  easily  remediable  by  tlie 
expenditure  of  an  amount  small  as  com- 
pared with  the  cost  of  the  structure,  and 
without  destruction  of  any  material  part 
of  the  building,  the  contractor  may  recover 
the  contract  price,  less  the  cost  of  making 
the  building  conform  to  the  contract;  but  lie 
cannot  recover  the  entire  contract  price, 
even  though  the  building  as  erected  is  of 
as  great  or  greater  market  value  than  the 
one  called  for  by  the  contract.  Foeller  v. 
Heintz,  24:  327,  118  N.  W.  543,  137  Wis. 
169. 

649.  A  building  contractor  who  is  wrong- 
fully ejected  from  the  property  and  forbid- 
den to  complete  his  work  may  treat  the  con- 
tract as  rescinded,  and  maintain  an  action 
of  quantum  meruit  for  the  services  and  ma- 
terial furnished  in  the  construction  of  the 
building.  Valente  v.  Weinberg,  13:  448,  67 
Atl.  369,  80  Conn.  134.  (Annotated) 

650.  Upon  cancelation  of  a  contract  for 
public  work  because  of  mutual  mistake  as 
to  the  amount  of  work  to  be  done,  the  con- 
tractor may  recover  upon  a  quantum  mer- 
uit for  all  that  he  has  done.  Long  v.  Athol, 
17:  96,  82  N.  E.  665,  196  Mass.  497. 

651.  Neither  the  cost  nor  the  value  of 
extra  work  is  material  in  fixing  the  amount 
to  be  awarded  for  work  done  under  a  con- 
tract for  public  work,  which  contract  is 
canceled  for  mutual  mistake  of  the  parties. 
Long  V.  Athol,  17:  96,  82  N.  E.  665,  198 
Mass.  497. 

Destruction   of  property   before   com- 
pletion. 
To  excuse  failure  to  perform,  see  supra,  638. 

652.  The  contractor  cannot  hold  the  own- 
er liable  on  quantum  m,eruit  for  work  done 


CONTEACTS,  IV.  c,  2,  3. 


665 


IT)  case  of  the  accidental  destruction  of  a 
building  pending  performance  of  a  contract 
to  raise  it  and  put  it  on  a  new  foundation 
for  a  lump  sum.  Taulbee  v.  McCarty,  36: 
43,  137  S.  W.   1045,  144  Ky.   199. 

653.  The  loss  caused  by  the  destruction 
by  storm  of  a  building  partly  finished  falls 
upon  the  one  who  has  undertaken  to  com- 
plete and  deliver  it  to  the  owner  for  a  stip- 
ulated price.  Milske  v.  Steiner  Mantel  Co. 
5:  1 105,   63  Atl.   471,   103   Md.   235. 

(Annotated) 

2.  Sufficiency  of  performance, 

(See   also   same   heading   in  Digest   L.R.A. 

1-10.) 

Damages  in  case  of  substantial  perform- 
ance of  building  contract,  see  Dam- 
ages, 116. 

What  constitutes  performance  by  landlord 
of  agreement  to  furnish  Avater  for  ir- 
rigation, see  Landlord  and  Tenant,  21. 

654.  The  rule  that  there  is  a  substantial 
compliance  with  a  building  contract  if  the 
work  is  completed  except  as  to  certain  un- 
important particulars,  which  a  reasomTble 
allowance  would  enable  the  owner  to  sup- 
ply and  remedy,  cannot  be  extentlcl  to 
failure  in  a  material  part  of  the  work,  such 
as  the  waterproofing  of  the  cellar,  which  is 
covered  by  a  guaranty.  Bush  v.  Jones, 
6:  774,  144  Fed.  942,  75'C.  C.  A.  582. 

655.  To  constitute  substantial  execution 
of  a  building  contract,  or  one  to  supervise 
and  direct  the  construction  of  a  building  ac- 
cording to  specific  plans  and  with  the  usual 
architect's  duty  in  such  cases,  the  structure 
as  completed  must  be  the  result  of  good- 
faith  efforts  to  perform  strictly,  and  must 
satisfy  with  exactness  all  essentials  to  the 
accomplishment  of  the  proprietor's  purpose. 
Foeller  v.  Heintz,  24:  327,  118  N.  W.  543, 
137  Wis.  169. 

656.  The  test  of  substantial  performance 
of  a  building  contract  is  not  inconsistent 
with  imperfections  in  matters  of  detail,  not 
defeating  the  object  of  the  proprietor  by 
going  to  the  root  of  the  matter,  yet  re- 
quiring a  considerable  outlay  to  afford  him, 
for  a  given  amount  of  money,  in  substance 
the  thing  agreed  upon.  Foeller  v.  Heintz, 
24:  327,   118  N.  W.  543,  137  Wis.   169. 

657.  A  building  contract  is  not  substan- 
tially performed  where  a  considerable  sum 
of  money  would  be  required  to  remedy  in- 
completeness in  matters  of  detail,  some  of 
which  are  practically  structurally  remedi- 
able, and  others  are  not.  Foeller  v.  Heintz, 
24:  327,  118  N.  W.  543,  137  Wis.  169. 

658.  When  the  elements  of  incomplete- 
ness consistent  with  substantial  perform- 
ance of  a  bui'lding  contract  can  be  obviated 
without  destruction  of  any  material  part  of 
the  building,  and  without  an  expenditure 
of  an  unreasonable  sum  of  money,  it  is 
remediable.  Foeller  v.  Heintz,  24:  327,  118 
N.  W.  543,  137  Wis.  169. 

659.  Structures  placed  on  land  by  one 
who,  in  consideration  of  land  deeded  to  him. 
Digest  1-52  L.R.A.(N.S.> 


has  agreed  to  convey  to  the  grantor  land 
owned  by  him,  and  place  certain  dwelling 
houses  thereon,  Avhieh  are  not  fit  for  dwell- 
ings, cannot  be  regarded  as  even  a  partial 
compliance  with  the  agreement.  Braddy  v. 
Elliott,  16:  1 121,  60  S.  E.  507,  146  N.  C.  578. 

660.  One  employed  to  build  a  street  to 
a  certain  level  is  entitled  to  his  pay  when 
he  has  constructed  the  street  to  that  level 
according  to  specifications,  although,  be- 
cause of  the  action  of  the  elements  or  the 
nature  of  the  soil,  it  subsequently  settles 
below  that  level.  Duncan  v.  Cordley, 
17:  697,  85  N.  E.  160,  199  Mass.  299. 

(Annotated) 

661.  A  contract  to  return  articles  pur- 
chased on  approval  if  they  do  not  please 
is  complied  with  upon  delivering  them  to 
a  responsible  carrier  properly  consigned  to 
the  seller.  Gottlieb  v.  Rinaldo,  6:  273,  93 
S.  W.  750,  78  Ark.  123. 

662.  A  sugar  manvifacturer  is  not  liable 
to  a  beet  grower  whom  he  has  contracted  to 
instruct  as  to  Uje  growing  of  beets,  for  dam- 
ages caused  by  advice  to  wait  for  experi- 
enced laborers  whom  he  would  furnish, 
where  there  were  no  other  laborers  to  be 
had.  Smith  v.  Billings  Sugar  Co.  15:  837, 
94  Pac.  839,  37  Mont.  128. 

3.  Acceptance;  waiver  of  ohjections. 

(See  also  same  heading  in  Digiist  L.R.A. 
1-10.) 

Conditions  precedent  to  action  on  contract 
after  acceptance  of  work  by  other  party, 
see  Action  or  Suit,  7. 

Liability  of  municipality  which  raises  build- 
ing to  conform  to  street  grade  for  in- 
jury to  stranger  by  its  collapse  after 
it  has  been  turned  over  to  the  owner, 
see  Master  and  Servant,  1064. 

Acceptance  by  purchaser,  see  Sale,  1.  d. 

See  also  infra,  733,  761. 

Waiver. 

By  purchaser,  see  Sale,  I.  d. 
See  also  infra,  672,  673,  704. 

663.  One  contracting  to  drive  entries  in  a 
mine  waives  his  contract  right  to  have  the 
other  contracting  party  furnish  pumps,  pip- 
ing, and  to,ols  to  keep  water  out  of  the  mine, 
which  Blight  be  secured  at  small  cost,  by 
working  for  several  months  without  pro- 
curing them  or  insisting  that  they  be  fur- 
nished, but  informing  the  other  party  that 
he  will  bail  the  water  out.  Stonega  Coke 
&  Coal  Co.  V.  Addington,  37:  969,  73  S.  E, 
257,  112  Va.  807. 

664.  Failure  of  architects  who  undertake 
to  prepare  plans  and  supervise  tlie  construc- 
tion of  a  building,  to  submit  the  plans  as 
required  by  contract,  does  not  put  the  prop- 
erty owner  on  notice  so  that  his  failure  to 
take  action  to  secure  fuller  information  will 
waive    misrepresentations   as   to   ability    of 

I  the  architect  and  the  probable  cost  of  the 

structure.      Edward    Barron    Estate    Co.   v. 

Woodruff  Co.  42:  125,  126  Pac.  351,  163  Cal. 

561. 

665.  Occupation  of  a  building  not  completed 


6G6 


CONTRACTS,  IV.  d. 


in  the  time  called  for  by  the  contract,  under 
an  agreement  that  damages  for  the  delay 
shall  be  waived,  does  not  tvaive  damages  for 
faulty  construction  not  then  known  to  exist, 
— especially  where  it  provides  for  adjust- 
ment of  damages  arising  froru  the  specified 
defect.  Brent  v.  Head,  W.  &  Co.  i6:  8oi, 
115  N.  W.  1106,  138  Iowa,  146. 

666.  An  agreement  by  which  owners  of  a 
building  receive  possessiim  of  it  and  waive 
damages  for  delay  in  its  construction  may 
be  shown  not  to  have  been  intended  as  a 
substitution  for,  or  vvaiv<»r  of,  any  claim 
under  the  original  building  contract.  Brent 
v.  Head,  W.  &  Co.  i6:  8oi,  115  N.  W.  1106, 
138  Iowa,  146. 

667.  A  waiver  of  damages  for  failure  to 
complete  a  building  on  time  'on  and  after" 
a  specified  date  will  not  waive  damages  ac- 
cruing before  that  time.  Brent  v.  Head,  W. 
&  Co.  16:  8oi,  115  N.  W.  1106,  138  Iowa,  146. 

668.  Damages  suffered  by  the  owners  be- 
cause of  faulty  construction  of  a  building, 
after  the  arbitration  of  a  claim  for  damages 
because  of  a  particular  t!efect,  are  not 
waived  by  an  agreement  providing  for  the 
adjustment  of  such  claim  and  the  arbitra- 
tion of  it.  Brent  v.  Head,  W.  &  Co.  i6:  Soi, 
115  N.  W.  1106,  138  Iowa,  146. 

d.  Condition;    estimates;    certificate    of 
performance. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Proceeding  to  set  aside  umpire's  decision 
as  condition  precedent  to  action,  see 
Action  or  Stjix,  7. 

Liability  of  architect  for  negligence  in  cer- 
tifying completion  of  work,  see  Aeciii- 
TECTS,    3. 

Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  455. 

Admissibpity  in  evidence  of  architect's  cer- 
tificate, see  Evidence,   750. 

Sufficiency  of  evidence  to  show  that  certifi- 
cate was  not  withheld  in  good  faith, 
see  Evidence,  2085. 

Question  for  jury  as  to  arbitrariness  in 
withholding,  see  Trial,  597. 

669.  There  can  be  no  recovery  of  the  pur- 
chase  price   of  trees   under   a   contract   re- 
quiring them  to  be  paid  for  upon  delivery 
at  a  certain  place  at  a  time  of  which  the 
vendee  is  to  have  notice,  in  the  absence  of 
anything  to  show  receipt  of  such  notice,  or 
that   the  trees   were   at  the   place   specified 
readv   for  delivery.      Bonewell  v.  Jacobson, 
5:  436,  106  N.  W.  614,  130  Iowa,  170. 
Necessity  of  certificate  or  estimate. 
Statute  providing  that  contract  making  cer- 
tificate of  architect  condition  precedent 
to  action  shall  not  oust  jurisdiction  of 
the  courts,   see   Constitutional  Law, 
455. 

670.  Absence  of  a  final  estimate  by  the  en- 
gineer upon  completion  of  the  work  will  pre- 
vent a  recovery  by  the  subcontractor  against 
the  contractor  for  the  performance  of  cer- 
tain work  of  the  amount  alleged  to  be  due, 
Digest   1-52  L.R.A.(N.S.) 


wliere,  by  the  terms  of  the  contract  by  which 
the  parties  are  bound,  the  procuring  of  such 
estimate  is  to  constitute  a  condition  prec- 
edent to  the  right  to  recover  for  the  work 
done.  Johnston  &  Grommett  Bros.  v.  Bunn, 
19:  1064,  62  S.  E.  341,  108  Va.  490. 

671.  No  recovery  can  be  had  on  a  sealed 
contract  to  repair  a  building,  which  pro- 
vides that  payments  are  to  be  made  on  a 
certificate  from  the  architect,  unless  such 
certificate  is  obtained,  in  the  absence  of 
fraud  or  bad  faith  on  his  part.  Pope  v. 
King,  16:  489,  69  Atl.  417,  108  Md.  37. 

672.  Use  by  the  owner  of  a  building  re- 
paired under  a  contract  providing  that  pay- 
ments shall  be  made  on  certificate  from  the 
architect  does  not  render  him  liable  for  the 
repairs  if  the  certificate  is  not  obtained. 
Pope  v.  King,  16:  489,  69  Atl.  417,  108  Md. 
37.  (Annotated) 

673.  The  owner  may  be  found  to  have 
waived  the  right  to  have  the  architect  pass 
upon  the  question  of  completion  of  the  build- 
ing before  paying  the  contract  price,  where 
he  takes  possession  of  the  unfinished  build- 
ing, completes,  and  occupies  it.  Hunn  v. 
Pennsylvania  Inst,  for  Blind,  18:  1248,  70 
Atl.  812,  221  Pa.  403. 

674.  Where  a  building  contractor,  acting 
as  owner,  sublets  a  portion  of  the  work, 
with  the  provision  that  the  work  is  to  be 
done  to  the  satisfaction  of  its  architects, 
upon  whose  certificate  payments  are  to  be 
made,  recovery  may  be  had  in  the  absence 
of  certificate  upon  proof  that  the  certificate 
was  not  withheld  in  good  faith.  Thaler  v. 
Wilhelm  Greiss^r  Constr.  Co.  33:  345,  79 
Atl.  147,  229  Pa.  512. 

675.  A  contractor  who  fails  to  secure  the 
architect's  certificate  of  completion  as  re- 
quired by  his  contract  must,  in  order  to 
recover  by  showing  a  rubstantial  comple- 
tion of  the  building,  satisfactorily  estab- 
lish that  the  certificate  was  unreasonably 
withheld.  Bush  v.  Jones,  6:  774,  144  Fed. 
942,  75  C.  C.  A.  582.  (Annotated) 

676.  A  contractor  for  work  on  a  building 
caii  recover  the  contract  price  without  pro- 
curing the  certificate  of  the  architect  as  his 
contract  requires  him  to  do,  where  the  work 
was  completed  to  the  satisfaction  of  the 
architect,  and  the  certificate  was  withheld 
to  compel  replacing  of  work  injured  with- 
out fault  of  the  contractor.  Coplew  v. 
Durand,  16:  791,  95  Pac.  38,  153  Cal.  278. 
Conclnsiveiiess      and      snfBLciency      of 

certificate   or  estimate. 
See  also  infra,  771. 

677.  An  architect's  certificate  which  a 
building  contract  provides  shall  be  final 
and  conclusive  is  so  in  legal  effect  unless 
impeached  for  fraud  or  such  gross  mistakes 
as  would  imply  bad  faith  or  a  failure  to 
exercise  an  honest  judgment.  Shririer  v. 
Craft,  28:  450,  51  So.  884,  166  Ala.  146. 

678.  The  owner  is,  in  the  absence  of  fraud 
or  collusion,  bound  by  the  certificate  of  the 
architect  as  to  the  completion  of  a  building 
contract  where  such  certificate  by  the  terms 
of  the  contract  was  to  be  binding  on  the 
contractor,  although  the  contract  was  signed 
by  the  architect  as  agent  of  the  owner,^ 


CONTRACTS,  IV.  e. 


667 


especially  if  the  owner  adopted  the  contract 
as  his.  Young-  v.  Stein,  17:  231,  116  N.  W. 
195,  152  Mich.  310. 

679.  The  architect's  certificate  of  com- 
pliance with  the  plans  and  specifications  of 
a  building  contract  estops  the  owner  from 
disputing  such  compliance  so  far  as  it  is 
not  within  the  exception  of  the  contract 
that  the  certificate  shall  not  release  the 
contractor  from  any  obligation  to  perform 
the  work  in  a  good  and  workmanlike  man- 
ner. Young  V.  Stein,  17:  231,  116  N.  W. 
195,  152  Mich.  310. 

680.  Sloping  floors  and  windows  out  of 
shape  are  evidence  of  bad  workmanship 
within  the  meaning  of  a  building  contract 
that  the  arcliitect's  certificate  shall  not  re- 
lease the  contractor  from  the  obligation  of 
performing  the  work  in  a  good  and  work- 
manlike manner.  Young  v.  Stein,  17:  231, 
116  N.  W.  195,  152  Mich.  310. 

681.  A  provision  in  a  contract  between  a 
principal  contractor  and  a  subcontractor 
for  the  grading  of  a  railroad  that  the  work 
should  be  done  under  the  supervision  of  the 
chief  engineer  of  the  former,  who  should 
make  estimates  as  a  basis  for  'the  payment 
of  the  work  done ;  and  that  his  decision  as  to 
all  matters  of  dispute  which  arise  between 
the  parties  should  be  final  and  conclusive, — 
is  valid;  and  the  decision  of  such  an  umpire 
is  prima  facie  conclusive  upon  all  matters 
submitted  to  and  fairly  and  honestly  de- 
cided by  him.  Edwards  v.  Hartshorn, 
i:  1050,  82  Pac.  520,  72  Kan.  19. 

682.  The  decision  of  a  chief  engineer 
whose  estimates  are  made  final  and  con- 
clusive by  the  contract  will  not  be  binding 
if,  by  subsequent  agreement  of  the  parties, 
such  decision  is  not  to  be  relied  on,  but 
other  full  and  correct  estimates  are  to  be 
made.  Edwards  v.  Hartshorn,  i:  1050,  82 
Pac.  520,  72  Kan.  19. 

683.  The  decision  of  a  chief  engineer 
whose  estimates  are  made  final  and  con- 
clusive by  the  contract  will  have  no  binding 
force  where  there  is  fraud  or  mistake  so 
great  and  palpable  as  to  imply  bad  faith,  or 
he  fails  fairly  and  honestly  to  perform  the 
functions  assigned  to  him.  Edwards  v. 
Hartshorn,  i:  1050,  82  Pac.  520,  72  Kan.  19. 

(Annotated) 

684.  The  fact  that  a  person  whose  decision 
is,  by  the  contract,  made  final  and  con- 
clusive in  case  of  dispute  between  the  par- 
ties, is  an  employee  of  one  of  them,  does  not, 
of  itself,  weaken  the  force  of  his  decision; 
but  the  law  requires  of  a  person  so  situated 
the  utmost  diligence  and  good  faith  in  the 
performance  of  his  duties.  Edwards  v. 
Hartshorn,  i:  1050,  82  Pac.  520,  72  Kan.  19. 

685.  The  engineer's  estimates,  which,  by 
the  terms  of  a  construction  contract,  are  to 
be  binding  in  case  of  dispute,  are  not  bind- 
ing if  he  misinterprets  or  misconstrues  the 
provisions  of  the  contract.  Indianapolis 
Northern  Traction  Co.  v.  Brennan,  30:  85, 
87  N.  E.  215.  90  N.  E.  65.  174  Ind.  1. 
Digest  1-52  L.R.A.(N.S.) 


c.  Breach  and  its  effect. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Excuse  for  breach  generally,  see  supra,  IV. 
b,  1. 

Inevitable  accident  or  impossibility  of  per- 
formance as  excuse  for  breach,  see 
supra,  IV.  b,  2. 

Prevention  or  hindrance  by  other  party  as 
excuse  for  nonperformance,  see  supra, 
IV.  b,  3. 

Provision  that  action  for.  breach  shall  not 
abate  upon  plaintiff's  death,  see  Abate- 
ment AND  Revival,  4. 

Attachment  in  case  of  breach  of,  see  At- 
tachment, 5,  16. 

Breach  of  marriage  contract,  see  Breach 
OF  Promise. 

Liability  for  inducing  breach  of,  see  Case, 
II.;  Labor  Organizations,  10. 

Trespass  on  the  case  to  recover  unliqui- 
dated damages  for  breach,  see  Case,  13. 

Agreement  to  indemnify  against  claim  for 
breach  of  contract,  see  Champerty  and 
Maintenance,  1. 

Imprisonment  of  laborer  violating  farm  la- 
bor contract,  see  Constitutional  Law, 
235 ;  Imprisonment  for  Debt,  7,  8 ; 
Peonage. 

Breach  of  covenant  or  condition  subsequent, 
see  Covenants  and  Conditions,  III. 

Conspiracy  to  induce  breach,  see  Con- 
spiracy, 13,  14. 

Exemplary  damages  for  inducing  breach  of, 
see  Damages,  68. 

Measure  of  compensation  for  breach,  see 
Damages,  III.  a;  III.  p.,  2;  Set-Off 
AND  Counterclaim,  6-11. 

Recovery  for  mental  anguish,  see  Damages, 
623-629. 

Election  of  remedies  in  case  of  breach,  see 
Elections  of  Remedies,  14-17. 

Equitable  relief  against  breach,  see  Equity, 
37,  39. 

Estoppel  to  complain  of  breach,  see  Estop- 
pel, 230. 

Evidence  generally  as  to  breach,  see  Evi- 
dence, 1948-1951. 

Sufficiency  of  proof  in  action  for  breach,  see 
Evidence,  2272, 

Injunction  against  attempt  to  induce  breach, 
see  Injunction,  122,  137-140,  144- 
146. 

Breach  of  contract  to  isssue  insurance  pol- 
icy, see  Insurance,  138. 

Interest  on  damages  for  breach  of,  see  In- 
terest, 20. 

Breach  of  contract  to  lease,  see  Landlord 
and  Tenant,  8. 

Who  may  maintain  action  for  breach  of,  see 
Parties,  I.  a,  2. 

Third  person's  right  to  sue  for  breach,  see 
Parties,  I.  a,  2,  b. 

Breach  of  physician's  contract,  see  Physi- 
cians AND  Surgeons,  52-54. 

Pleading  generally  in  action  for  breach,  see 
Pleading,  II.  h. 

Amendment  of  pleading  in  action  for  breach, 
see  Pleading,  117. 


668 


CONTRACTS,  IV.  e. 


Rights  and  remedies  of  parties  on  breach  of 

contract  of  sale,  see  Sale,  III. 
Set-ofT    in    action    for    breach,    see   Set-Off 

AND  COUNTKRCLAIM,  6-11. 

Successive  actions  for  separate  breaches,  see 

Action  ob  Suit,  91. 
See  also  supra,  15. 

686.  One  who  has  contracted  to  manufac- 
ture articles  upon  order  according  to  spec- 
ifications to  be  designated  is  not,  in  order 
to  recover  damages  for  breach  of  the  con- 
tract, bound  to  proceed  with  the  manufac- 
ture in  the  absence  of  order  or  specifica- 
tions. Gardner  v.  Deeds,  4:  740,  92  S.  W. 
518,  116  Tenn.  128.  - 

687.  A  sugar  manufacturer  is  not  liable 
for  breach  of  contract  to  instruct  a  grower 
as  to  the  cultivation  of  beets,  merely  be- 
cause the  instruction  was  improper,  if  it 
was  erroneous  merely  because  of  honest 
mistake  of  judgment,  in  the  absence  of 
such  gross  ignorance  as  would  amount  to 
fraud.  Smith  v.  Billings  Sugar  Co.  15:  837, 
94   Pac.   839,   37   Mont.    128. 

Wliat  constitutes  a  breach. 

688.  An  agreement  that  a  contract  pla- 
cing property  in  another's  hands  for  sale 
shall  contiui'.e  after  the  death  of  the  owner, 
and  that  he  will  make  a  codicil  to  his  will 
directing  his  executor  to  carry  out  its  pro- 
visions, is  broken,  so  as  to  subject  the  ex- 
ecutor to  damages,  by  a  neglect  to  make 
the  codicil,  and  assertion  by  the  executor 
and  beneficiaries  under  the  will  of  the  right 
to  have  the  property  administered  as  if  the 
contract  had  not  been  made.  Mills  v. 
Smith,  6:  865,  78  N.  E.  765,  193  Mass.  11. 

689.  One  in  whose  favor  foreclosure  of  a 
land  contract  is  decreed  unless  the  pur- 
chaser pay  him  a  specified  sum  of  money, 
is  guilty  of  breach  of  contract  which  will 
support  an  action  in  case  he  evades  a  tender 
of  the  money  for  the  purpose  of  preventing 
the  purchaser  from  acquiring  the  property, 
which  results  in  damages  to  him  which  the 
parties  might  reasonably  have  contemplated 
as  a  natural  consequence  of  the  breach. 
Loehr  v.  Dickson,  30:  495,  124  N.  W.  293, 
141  Wis.  332. 

690.  A  contract  employing  one  as  man- 
ager of  a  sales  department  is  violated  by 
the  master  by  •unjustifiably  reducing  the 
rank  of  such  servant  to  that  of  a  sales 
clerk,  although  the  same  salary  is  tendered 
in  the  latter  case  as  was  being  paid  under 
the  contract  to  act  as  manager.  Cooper 
V.  Stronge  &  Warner  Co.  27:  ion,  126  N. 
W.  541,  111  Minn.  177.  (Annotated) 

691.  A  contract  by  one  selling  a  livery 
business,  not  to  engage  in  that  business  in 
opposition  to  the  vendee  in  the  city  where 
the  business  is  located,  is  broken  by  his 
becoming  manager  of  a  branch  established 
there  by  one  owning  a  livery  business  a 
few  miles  distant  from  the  city.  Smith  v. 
Webb,  40:  1191,  58  So.  913,  176  Ala.  596. 

(Annotated) 

692.  A  contract  entered  into  by  one  who 
had  been  conducting  a  plumbing,  tinwork, 
and  heating  business,  with  his  vendee  upon 
the  sale  of  his  business,  not  to  go  into  or 
Digest  1-52  L.R.A.(N.S.) 


conduct,  directly  or  indirectly,  a  plumbing, 
tinwork,  or  heating  business  within  the 
county,  is  broken  by  his  taking  employment 
as  a  skilled  workman  with  tiie  vendee's 
competitors,  and  entering  into  contracts  to 
install  heating  apparatus,  and  doing  other 
work  to  be  paid  tor  by  the  hour,  day,  or 
piece,  in  the  same  manner  as  lie  did  before 
the  sale,  except  that  he  carried  no  goods  or 
material  in  stock  and  did  not  furnish  the 
same.  Ammon  v.  Keill,  52:  503,  146  N.  W. 
1009,  95  Neb.  695. 

693.  A  contract  to  furnish  medical  at- 
tendance to  a  person  is  not  broken  by  re- 
fusal to  accompany  him  to  another  state, 
wliere  the  contract  was  made  at  his  perma- 
nent place  of  residence  and  contains  nothing 
to  indicate  any  intention  of  a  change  of 
domicil.  Re  McVicker,  28:  11 12,  91  N.  E. 
1041,  245  111.  180. 

694.  A  demand  by  a  debtor  that  the  cred- 
itors collect  the  amount  due  from  a  litiga- 
tion in  which  he  is  employed  is  a  repudia- 
tion of  his  agreement  to  pay  "now"  or  "on 
demand."  Shubert  v.  Rosenberger,  4- :  1062, 
204  Fed.  934,  123  C.  C.  A.  934. 
Premature,  breach. 

695.  An  assignor  of  a  contract  for  malt  to 
be  delivered  during  a  certain  season,  who 
guarantees  delivery  to  the  assignee,  cannot 
breach  his  contract  so  as  to  fix  the  time  for 
computation  of  damages  by  notifying  the 
assignee  that  "he  declines  to  guarantee  de- 
livery" as  per  contract,  prior  to  the  time 
deliveries  are  ordered.  Mount  Vernon 
Brewing  Co.  v.  Teschner,  16:  758,  69  Atl. 
702,  108  Md.  158. 

E£Fect. 

Setting  up  breach  in  action  on  account  for 
money  earned  under  it,  see  Accounts, 
11. 

Cancelation  of  oil  or  gas  lease  for  breach  of 
conditions,  see  Mines,  77-83. 

Effect  on  duty  of  water  company  of  munici- 
pality's breach  of  agreement  to  pay 
hydrant  rentals,  see  Waters,  354. 

See  also  infra,  761-763. 

696.  One  cannot,  upon  breach  of  his  con- 
tract to  support  a  man  and  wife  for  life  for 
the  proceeds  of  their  benefit  certificates, 
have  assessments  paid  by  him  refunded- 
Ptacek  V.  Pisa,  14:  537,  83  N.  E.  221,  231 
111.  522. 

697.  No  recovery  can  be  had  for  breach 
of  contract  to  employ  one  as  secretary  and 
treasurer  of  a  corporation,  since,  being  a 
position  of  responsibility  and  trust,  the  in- 
cumbent was  removable  at  will.  Hewson  v, 
Peterman  Mfg.  Co.  51:398,  136  Pac.  1158, 
76  Wash.  600. 

698.  Noncompletion  of  a  building  within 
the  time  specified  by  the  contract  will  not 
forfeit  a  right  to  recover  the  contract  price 
where  the  contract  provides  liquidated  dam- 
ages to  be  deducted  from  the  price  in  case 
the  building  is  not  completed  within  the 
specified  time.  Hunn  v.  Pennsvlvania  Inst, 
for  Blind,  18:  1248,  70  Atl.  812.' 221  Pa.  403. 

699.  A  building  contractor  does  not  for- 
feit the  right  to  recover  the  contiact  price 
for  construction  of  the  building  by  the  fact 
that   the   owner   takes   possession   and   com- 


CONTRACTS,  IV.  f;  V.  a. 


669 


pletes  it  under  the  terms  of  the  contract 
because  of  his  delay,  where  the  contract  pro- 
vides that  in  such  case  the  cost  of  comple- 
tion shall  be  deducted  from  the  contract 
price.  Hunn  v.  Pennsylvania  Inst,  for 
Blind,  18:  1248,  70  Atl.  812,  221  Pa.  403. 

700.  A  supervising  and  directing  architect 
is  liable  for  damages  occasioned  by  his  in- 
excusable fault  in  directing  the  builder  t6 
depart  from  the  agreed  building  plans. 
Foeller  v.  Heintz,  24:  327,  118  N.  W.  643, 
137  Wis.  109.  ■-„'.',' 

■Waiver  of  breach.  ^      '    ' '" 
See  also  infra,  761. 

701.  Merely  paying  monthly  accounts  for 
laborers  furnished  under  a  contract  to  fur- 
nish a  certain  number  Of  hands  per  day 
does  not  waive  a  claim  for  damages  for  a 
shortage,  where  the  full  number  of  hands 
was  at  all  times  demanded.  State  v.  Ar- 
kansas Brick  &  Mfg.  Co.  33:  376,  135  S. 
W.  843,  98  Ark.   125. 

702.  Mere  failure  to  pay  the  instalments 
for  the  purchase  price  of  a  newspaper  plant 
on  the  exact  days  when  they  are  due  under 
the  contract  will  not,  in  case  the  seller 
rec«ives  them  afterwards,  permit  him  to 
claim  such  a  breach  on  the  part  of  the 
buyer  as  to  authorize  him  to  disregard  his 
agreement  in  the  contract  not  to  conduct 
another  paper  in  that  county.  McAuliflfe  v. 
Vaughan,  33:  255,  70  S.  E.  322,  135  Ga.  852. 

/.  Time. 

fSee  also  same  heading  in  Digest  L.R.A. 
1-10.) 

For  delivery  of  goods  sold,  see  Sale,  35. 
See  also  supra,  II.  c. 

F.  Change   or  extinguishment. 

a.  In  general. 

(See  also   same   heading   in  Digest  L.R.A. 

1-10.) 

Effect  on  oral  contract  to  furnish  cars  of 
written  contract  signed  by  shipper  sub- 
sequent to  breach  of  oral  contract,  see 
Carriers,  957. 

Setting  aside  deed  for  absence  or  inadequacy 
of  consideration,  see  Deeds,  II.  h. 

Reformation  of  insurance  policy,  see  Insur- 
ance, III.  b. 

Contract  with  city,  see  Mxjnicipal  Corpo- 
EATIONS,  246. 

Modification  generally. 

Consideration  for  agreement  to  pay  addi- 
tional compensation,  see  supra,  110-114. 

Effect  of  subsequent  ratification,  see  Prin- 
tional  compensation,  see  supra,  110-114. 

703.  An  architect,  as  the  mutual  agent  of 
builder  and  proprietor  to  construe  plans  for 
a  structure  and  settle  disputes  in  thj^t  re- 
gard, has  no  authority  to  change  the  plans. 
Foeller  v.  Heintz,  24:  327,  118  N.  W.  543, 
137  Wis.  169. 

704.  A  naked  promise  without  considera- 
tion, to  waive  the  time  clause  of  a  Ijuild- 
Digest  1-52  L.R.A.(N.S.) 


ing  contract,  does  not  estop  the  owner  to 
claim  damages  for  delay  beyond  the  stipu- 
■^•;ted  time,  where  it  does  not  appear  that 
the  contractor  acted  upon  the  promise,  but 
it  does  estop  him  from  insisting  upon  a 
stipulation  of  the  contract  providing  that 
no  allowance  shall  be  made  lor  delays  caused 
by  the  owner  unless  a  claim  tiierefor  is 
presented  in  writing  to  the  architect,  where 
the  contractor,  relying  upon  the  promise, 
neglected  to  make  a  claim  in  writing  for 
an  extension  as  to  a  period  of  delay  caused 
by  the  owner.  Jobst  v.  Hayden  Bros.  50: 
50I,   121   N.   W.   957,   84   Neb.   735. 

(Annotated) 

705.  Where  the  parties  to  an  overdue  note 
enter  into  a  written  agreement,  founded 
upon  a  sufficient  consideration,  by  the  terms 
of  which  a  part  of  the  debt  is  forgiven  and 
the  time  for  paying  the  reduced  amount  is 
extended,  a  provision  therein  tliat  a  default 
in  the  payment  of  interest  shall  mature  the 
new  principal  implies  that  the  debtor  is 
not  to  forfeit  the  benent  of  the  reduction 
by  a  failure  to  meet  promptly  the  terms  of 
the  readjustment.  Girard  Trust  Co.  v, 
Owen,  33:  262,  112  Pac.  619,  83  Kan.  692. 

706.  The  contractual  relations  entered  into 
between  one  wlio  takes  a  conveyance  of  real 
estate  agreeing,  as  part  consideration  there- 
for, to  pay  the  debt  of  his  graiitor  or  that 
of  some  other  person  to  a  third  party,  can- 
not be  subsequently  varied  by  any  agree- 
ment between  the  immediate  parties  to  the 
transaction,  not  consented  to  by  the  third 
party.  Fanning  v.  Murphy,  4:  666,  105 
N.  W.  1056,  126  Wis.  538. 
Modification    by    parol. 

707.  Though  a  written,  unsealed  building 
contract  provides  that  no  alterations  or 
additions  shall  be  allowed  or  paid  for  unless 
the  same  and  the  cost  thereof  be  agreed 
to  in  writing,  in  advance,  and  no  change 
or  modification  of  the  contract  shall  be 
recognized  unless  evidenced  by  agreement 
in  writing,  yet  a  modification  may  be  made 
by  oral  contract  between  its  parties.  Simp- 
son V.  Mann,  48:  579,  76  S.  E.  895,  71  W. 
Va.  516.  (Annotated) 

708.  A  provision  in  a  building  contract  to 
the  effect  that  no  additions  or  alterations 
made  during  the  progress  of  the  work  shall 
be  regarded  as  extra  work  unless  agreed 
to  in  writing,  signed  by  the  parties  before 
such  work  is  begun,  may  be  found  to  be 
waived  where,  subsequent  to  the  execution 
of  the  original  contract,  and  during  the 
progress  of  the  work,  the  owner  and  con- 
tractor make  further  oral  agreements  that 
certain  changes  or  alterations  shall  be  con- 
sidered as  extra  work,  and  specifically  agree 
upon  the  price  to  be  paid  for  the  same,  or 
that  a  reasonable  price  shall  be  charged 
therefor  in  addition  to  the*  contract  price. 
Headley  v.  Cavileer  (N.  J,  Err.  &  App.) 
48:  564,  82  Atl.  908,  82  N.  J.  L.  635. 

709.  The  parties  to  an  oil  lease  providing 
that,  in  consideration  of  the  grant  therein 
made  the  lessees  will  yield  and  pay  to  the 
lessor  as  royalty  a  certain  slaare  of  "the  oil 
produced  and  sav^d  from  the  premises," 
may   subsequently,  for  a   consideration,  in- 


670 


CONTRACTS,  V.   b. 


crease    or    decrease    the    royalty    by    parol  i 
agreement,     and     such     agreement     is     not  | 
within  the  statute  of  frauds.    Nonamaker  v. 
Amos,  4:  980,  76  N.  E.  949,  73  Ohio  St.  163. 

(Annotated) 
710.  The  terms  of  a  contract  of  sale  of 
sawmill  timber,  which  reserved  title  in  the 
vendor,  and  provided  that  the  vendee  might 
sell  the  timber,  but  that  the  checks  therefor 
should  be  made  payable  to  the  original  vend- 
or, who  agreed  to  apply  half  the  proceeds 
thereof  to  his  vendee  to  pay  for  preparing 
and  marketing  the  lumber,  the  balance  to  be 
applied  on  the  original  purchase  price, 
which  contract  was  recorded,  cannot  be 
varied,  as  against  a  purchaser  of  the  lumber 
with  notice  of  such  conditions,  by  a  subse- 
quent parol  agreement  between  the  original 
parties,  under  which  half  of  the  amounts 
received  from  the  sale,  of  the  lumber  was  not 
applied  to  the  purchase  price,  but  to  an- 
other indebtedness  of  the  vendee  to  a  firm 
of  which  4,he  vendor  was  a  member  for  sup- 
plies furnished  to  the  vendee,  so  as  to  affect 
title  to  lumber  conveyed  after  the  original 
vendor  had  received  sufficient  funds  under 
the  terms  of  the  original  contract  to  satisfy 
the  purchase  price.  Clarke  Bros.  v.  McNatt, 
26:  585,  64  S.  E.  795,  132  Ga.  610. 

6.  Termination;  repudiation;  abandon- 
ment. 

(Bee  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Raising,  for  first  time  on  appeal,  claim 
that  purchaser  renounced  contract  be- 
fore delivery,  see  Appeal  and  Erbob, 
724. 

Promise  of  additional  compensation  to  in- 
duce completion  of  abandoned  contract, 
see   CoNTBACTS,   110,   112. 

Right  of  landlord  to  terminate  contract  and 
recover  rent  upon  abandonment  of 
premises  by  tenant,  see  Landlord  and 
Tenant,  210. 

Of  contract  of  employment,  see  Masteb  and 
Sebvant,  I.  e. 

Contract  with  city,  see  Municipal  Corpo- 
rations, 248. 

As  to  termination  of  contract  of  agency,  see 
Principal  and  Agent,   11. 

See  also  infra,  732. 

711.  One  who  has  contracted  to  construct 
a  tunnel  may  treat  the  contract  as  termi- 
nated upon  the  refusal  of  the  owner  to  fur- 
nish the  necessary  timber  for  shoring  up  the 
work  as  the  contract  requires  him  to  do. 
McConnell  v.  Corona  City  Water  Co.  8:  1171, 
85  Pac.   929,   149   Cal.   60. 

712.  The  mer»fact  that  building  contract- 
ors, after  the  collapse  of  a  partly  completed 
structure,  state  that  they  are  witho\it  suf- 
ficient funds  to  purchase  material  and  guar- 
antee payment  of  the  laborers,  and  arrange 
with  the  owner  to  make  advance  payments, 
does  not  constitute  an  abandonment  of  the 
contract  if  they  continue  to  work  on  the 
building  under  the  contract.  Nancolas  v. 
Digest  1-52  I<.B.A.(N.S.) 


Hitaffer,  12:  864,  112  N.  W.  382,  136  Iowa, 
341. 

713.  Upon  refusal  of  one  who  has  em- 
ployed another  to  perform  services  for  him 
to  advance  money  for  his  expenses,  as  re- 
quired by  the  contract,  the  latter  may  sue 
for  breach  of  the  contract  without  com- 
pleting performance  on  his  part.  Parrot 
V.  Mexican  C.  R.  Co.  34:  261,  93  X.  E.  590, 
207  Mass.  184. 

714.  Repudiation  of  an  agreement  by  one 
party,  in  advance  of  the  time  for  perform- 
ance, dispenses  with  the  further  perform- 
ance of  conditions  precedent  by  the  other 
party.  Holt  v.  United  Security  L.  Ins.  & 
T.  Co,  21:  691,  72  Atl.  301,  76  X,  J.  L.  585. 

715.  A  party  to  an  agreement  whicli  has 
been  repudiated  by  the  other  party  in  toto 
in  advance  of  the  time  for  performance,  in- 
stead of  rescinding  the  contract,  so  as  to 
put  it  at  an  end  as  if  it  never  had  been  made, 
may  treat  it  as  if  ended  merely  for  purposes 
of  further  performance,  and  hold  the  wrong- 
doer liable  for  the  damages  sustained  by 
reason  of  the  repudiation.  Holt  v.  United 
Security  L.  Ins.  &  T.  Co.  21:691,  72  Atl. 
301,  76  N.  J.  L.  585. 

716.  A  demonstrated  inability  by  one  par- 
ty to  complete  a  building  on  or  before  a 
time  specified  will  not  justify  the  other 
party  in  repudiating,  in  advance,  an  agree- 
ment to  make  a  certain  loan  upon  comple- 
tion of  the  building  by  such  specified  time, 
where  that  time  is  not  of  the  essence  of  the 
agreement.  Holt  v.  United  Security  L.  ln». 
&  T.  Co.  21 :  691,  72  Atl.  301,  76  N.  J.  L. 
585.  (Annotated) 

717.  A  contract  for  personal  services  at  a 
•certain  sum  per  week,  with  no  mention  as 

to  its  duration,  may  be  terminated  by  eith- 
er party  at  any  time,  without  notice.  War- 
den v.  Hinds,  25:  529,  163  Fed.  201,  90  C.  C. 
A.  449. 

718.  An  agreement,  by  a  railroad  com- 
pany, to  transport  cars  over  a  branch  road 
to  and  from  a  mine  free  of  charge,  in  con- 
sideration of  the  mine  owner's  developing 
the  property  and  constructing  the  branch, 
without  any  stipulation  as  to  its  duration, 
may  be  terminated  by  the  railroad  company 
at  any  time  upon  reasonable  notice.  Stone- 
ga  Coke  &  Coal  Co.  v.  Louisville  &  N.  R. 
Co.  9:  1 184,  55  S.  E.  551,  106  Va.  223. 

719.  A  contract  for  space,  for  a  term  of 
years,  on  a  particular  floor  of  a  building 
occupied  by  a  department  store,  in  which  to 
conduct  a  particular  line  of  business  in  con- 
nection with  the  general  enterprise,  which 
is  to  be  paid  for  by  a  monthly  rental  and 
a  percentage  of  sales  in  excess  of  a  certain 
amount,  is  terminated  by  the  destruction  of 
the  building,  and  the  beneficiary  cannot  in- 
sist on  the  allotment  of  space  in  the  new 
building  to  which  the  department  store  busi- 
ness is  moved.  Martin  Emerich  Outfitting 
Co.  V.  Siegel,  Cooper,  &  Co.  20:  11 14,  86  N. 
E.  1104,  237  111.  610. 

720.  One  who  is  released  from  his  promise 
to  marry  a  woman,  whom  he  has  induced  to 
submit  to  surgical  operations  to  such  an  ex- 
tent that  she  is  unable  to  support  herself, 
upon  'consideration  that  he  will  support  her 


CONTRACTS,  V.  c,  1. 


671 


during  life,  is  not  absolved  from  his  promise 
by  her  marriage  to  another  person,  after  the 
latter's  obligation  to  support  her  is  ter- 
minated. Henderson  v.  Spratlen,  19:  655,  98 
Pac.  14,  44  Colo.  278.  (Annotated) 

721.  The  organization  of  a  corporation  to 
conduct  a  business  does  not  terminate  a 
contract  by  strangers  not  to  compete  in 
business  with  the  organizers, — at  least 
where  the  organizers  are  large  stockholders 
in,  and  officers  of,  the  corporation.  Brad- 
ford V.  Montgomery  Furniture  Co.  9:  979, 
92  S.  W.  1104,  115  Tenn.  610.      (Annotated) 

722.  An  employee  wrongfully  dismissed 
under  circumstances  which  warrant  the  in- 
ference that  the  employer  intends  to  be  no 
longer  bound  by  the  terms  of  the  contract 
may  consider  himself  as  absolved  from  a  re- 
striction on  his  right  to  re-engage  in  a  simi- 
lar business  after  the  termination  of  his 
engagement.  General  Bill  &  Posting  Co. 
Ltd.  V.  Atkinson,  1  B.  R.  C.  497,  [1909]  A, 
C.  118.  Also  Reported  in  78  L.  J.  Ch.  N.  S. 
77,N  99  L.  T.  N.  S.  943,  25  Times  L.  R.  178. 

( Annotated ) 
By  death. 
Contract   of  employment,   see  Masteb   and 

Servant,  98,  99. 
See  also  infra,  766. 

723.  A  contract  by  the  terms  of  which 
one  person  is  to  act  as  managing  agent  of  a 
drug  store  owned  by  another,  for  a  compen- 
sation dependent  upon  the  extent  and  suc- 
cess of  the  business,  which  arrangement  is 
terminable  at  any  time  by  either  party, 
creates  a  personal  relation  which  is  dis- 
solved by  the  death  of  one  of  the  parties, 
and  is  without  binding  effect  upon  the  ad- 
ministrator of  his  estate.  Campbell  v. 
Faxon,  5:  1002,  85  Pac.  760,  76  Kan.  675. 

( Annotated ) 

724.  A  contract  to  pay  for  preparing  a  de- 
fense and  furnishing  legal  services  to  secure 
the  acquittal  of  the  brother  of  the  prom- 
isor, who  is  accused  of  crime,  is  not  termi- 
nated by  the  death  of  the  promisor;  but  his 
estate  is  liable  for  services  rendered  under 
the  contract  after  his  death.  Barrett  v. 
Towne,  13:  643,  82  N.  E.  698,  196  Mass.  487. 

(Annotated) 

725.  A  provision  in  a  contract  for  the 
purchase  of  corporate  stock  with  personal 
notes  to  be  executed  by  the  buyer  and  de- 
posited in  escrow  within  a  certain  time,  that 
it  shall  be  binding  upon  the  heirs,  executors, 
and  administrators  of  the  parties,  does  not 
permit  its  enforcement  if  the  buyer  dies 
within  the  time  specified  for  depositing  the 
paper  without  having  executed  the  notes. 
Browne  v.  Fairhall,  45:  349,  100  N.  E.  556, 
213  Mass.  290. 

726.  An  agreement  to  purchase  corporate 
stock  for  cash,  real  estate,  and  personal 
notes  of  the  buyer  to  be  made  in  such 
amounts  and  payable  at  such  times  as  the 
buyer  shall  elect,  payable  to  his  own  order 
and  indorsed  in  blank,  lapses  upon  death 
of  the  buyer  before  the  time  for  delivery 
arises,  without  having  taken  any  steps  to 
comply  with  the  contract.  Browne  v.  Fair- 
hall,  45:  349,  100  N.  E.  556,  213  Mass.  290. 

(Annotated) 
Digest  1-52  L.R.A.(N.S.) 


By  statute. 

727.  A  eontract  for  an  annual  considera- 
tion, payable  at  the  expiration  of  tlie  year, 
to  collect  accounts  by  a  system  which  in- 
cludes posting  lists  of  debtors,  is  abrogated, 
so  as  to  prevent  a  recovery,  even  for  the 
portion  of  the  year  which  has  elapsed,  by 
the  passage  of  a  statute  pending  a  yearly 
period,  which  prohibits,  under  penalty,  the 
posting  of  such  lists.  American  Mercan- 
tile Exchange  v.  Blunt,  10:  414,  66  Atl.  212, 
102  Me.  128.  (Annotated) 
Riglit  to  terminate  building  contract. 
Damages  for  wrongful  termination,  see  Dam- 
ages, 117,  688. 

728.  Under  a  clause  of  a  building  con- 
tract that,  in  case  of  failure  to  prosecute 
work  with  diligence,  such  failure  being  cer- 
tified by  the  architect,  the  owner  may,  after 
notice,  supply  lumber  and  material  and  de- 
duct the  cost  from  money  due,  and,  if  the 
architect  shall  certify  that  such  failure  is 
sufficient  ground  for  such  action,  the  owner 
shall  be  at  liberty  to  terminate  the  con- 
tractor's employment  and  take  possession, 
for  the  purpose  of  completing  the  work,  of 
all  materials,  tools,  and  appliances  on  the 
property,  to  warrant  the  latter  proceeding, 
the  architect  must  expressly  certify  that  it 
is  justified  and  for  such  purpose;  certify- 
ing merely  that  the  owner  has  sufficient 
cause  to  proceed  as  provided  by  such  clause 
is  not  enough.  Valente  v.  Weinberg,  13: 
448,  67  Atl.  369,  80  Conn.  134. 

728a.  The  owner  cannot  annul  a  building 
contract  of  which  time  is  a  material  part, 
four  months  before  the  expiration  of  the 
time  limit,  because  of  anticipation  that  the 
contractor  will  not  be  able  to  complete  the 
work  in  time,  if  the  contractor  is  actively 
engaged  in  the  prosecution  of  the  work, 
with  a  large  equipment,  unless  it  clearly 
appears  that  the  contractor  cannot  perform 
the  work  within  the  time  limited,  and  that 
his  failure  will  be  so  material  as  to  make 
his  performance  essentially  different  from 
his  promise.  Bradv  v.  Oliver,  41:  60,  147 
S,  W.  1135,  125  Tenn.  595.  (Annotated) 

c.  Rescission;   cancelation. 
1.  In  general. 

(See   also   same   heading   in   Digest   L.R.A. 

1-70.) 

Cancelation  of  order  for  goods,  see  supra, 
190-192. 

Accounting  on  trial  of  suit  to  cancel  deed, 
see  Accounting,  4. 

When  right  of  action  for  repudiation  ac- 
crues, see  Action  or  Suit,  10,  11. 

Review  of  discretion  of  court  as  to,  see  Ap- 
peal AND  Error,  567. 

Prejudicial  error  in  action  to  cancel  deed, 
see  Appeal  and  Error,  1519. 

Cancelation  of  deed  on  appeal,  see  Appeal 
AND  Error,  1570. 

Giving  notice  of  intent  to  rescind  to  bank- 
rupt during  inters'al  between  adjudica- 
tion in  bankruptcy  and  appointment  of 
trustee,  see  Bankruptcy,  109. 


672 


CONTRACTS,  V.  c,  2. 


Rescission  of  sale  by  promoter  to  corpora- 
tion, see  CoRroKATioNS,  106. 

Rescission  of  stock  subscriptions,  see  CoB- 
POBATIONS,  206-209. 

Jurisdiction  to  cancel  deed  of  land  located 
in  foreign  country,  see  Courts,  46. 

Rescission  of  separation  agreement,  see  Di- 
vorce AND  Sepabation,  ]<38. 

Jurisdiction  of  equity  to  cancel  written  in- 
strument, see  Equity,  I.  f. 

Effect  of  fraud  to  prevent  cancelation,  see 
Equity,  141. 

As  against  bona  fide  assignee,  see  Estoppel, 
34. 

Estoppel  to  disaffirm,  see  Estoppel,  ITS- 
ITS. 

Sufiiciency  of  evidence  to  justify,  see  Evi- 
dence, 22T1. 

Suit   by   executor    to    set    aside   deed,  see 

EXECUTOBS  AND   AOMINISTRATOBS,   8T, 

Contract  of  married  woman,  see  Husband 

AND  Wife,  111,  112. 
Antenuptial    contract,    see    Husband    and 

Wife,  133,  135. 
By  infant,  see  Infants,  I.  d,  2,  b. 
Of  insurance  policy,  see  Insubance,  III.  b, 

c. 
Interest  on   amount  recovered  as  damages, 

see  Interest,  390. 
Right  to  jury  in  proceeding  to  cancel  deed, 

see  Jury,  21. 
Right  to  jury  in  suit  to  cancel  trust  deed, 

see  JUBY,  22. 
Of   contract  of   service,    see    Masteb    and 

Sebvant,  I.  e. 
Of  oil  or  gas  lease,  see  Mines,  II.  b,  4,  b. 
In  partition  suit)  see  Pabtition,  19. 
As  prerequisite    to    suit    by    copartner  for 

fraud,  see  Pabtnebship,  8T. 
Pleading  in  action  for,  see  Pleading,  446, 

44T. 
Of  sale,  see  Sale,  III.  c. 
Set-off   in   action   for   rescission  of  infant's 

contract     of     sale,     see    Set-Ofp    and 

Countebclaim,  2T. 
Question  for  jury  as  to  intent  to  rescind,  see 

Tbial,  282. 
Between  vendor  and  purchaser,  see  Vendob 

AND  PUBCHASEB,  I,  e. 

See  also  supra,  T6.       ~,  mna^i.y.-iW 

729.  A  contract  under  seal,  giving  an  op- 
tion to  purchase  shares  of  stock  within  a 
specified  time,  is,  prior  to  that  tinn\  irrev- 
ocable by  the  grantor.  Watkins  v.  Robert- 
son, 5:  1194,  54  S.  E.  33,  105  Va.  269. 

730.  An  old  man  who  voluntarily  deeds 
his  farm  to  his  minor  grandson,  and  enters 
into  written  articles  of  copartnership  with 
him  for  its  operation  during  the  lifetime  of 
the  grantor,  upon  the  understanding  that 
the  grantee  shall  care  for  the  grantor  dur- 
ing life,  and  pay  his  funeral  expenses,  will 
not  be  permitted  to  rescind  the  conveyance 
and  recover  the  title  when  he  makes  other 
arrangements,  for  conducting  the  farm,  and 
sends  the  grandson  home  to  his  parents. 
Williams  v.  Langwill,  25:  932,  89  N.  E.  642, 
241   111.  441.  (Annotated) 

731.  One  having  a  right  to  return  bonds 
given  for  property,  and  receive  cash  for 
them,  if  he  is  dissatisfied  with  Ihera,  suffi- 
Digest  1-52  I,.R.A.(N.S.) 


ciently  shows  his  dissatisfaction  by  tender- 
ing the  bonds  and  demanding  the  cash. 
Rose  V.  Monarch,  42:  660,  150  S.  W.  56,  150 
Ky.   129. 

T32.  If  one  agreed  to  teach  another  in 
certain  lines  of  instruction  until  the  pupil 
was  proficient  in  them,  and,  after  beginning 
the  course  and  receiving  payment  in  full, 
abandoned  the  contract  and  refused  to  teach 
the  student  longer,  the  latter  would  have  a 
right  to  treat  the  action  of  the  teacher  aa 
a  rescission,  and  bring  suit  for  the  amount 
which  had  been  paid  by  him.  Timmerman 
V.  Stanley,  i :  379,  51  S.  E.  T60,  123  Ga.  850. 

2.  Conditions;    promptness;    restoring 
benefits. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of  delay  in  rescinding  contract,  see 
Election  of  Remedies,  45. 

733.  One  who  has  contracted  for  ice,  to /be 
delivered  from  day  to  day  in  such  quanti- 
ties as  demanded,  must,  after  accepting  a 
portion  of  the  demand  for  a  certain  day, 
under  the  assumption  that  the  remainder 
will  be  delivered  later  in  the  day,  in  order 
to  be  entitled  to  rescind  the  contract  for 
failure  to  deliver  the  whole. of  the  instal- 
ment, make  further  demand  for  delivery  of 
the  balance.  Wolfert  v.  Caledonia  Springs 
Ice  Co.  21:864,  88  N.  E.  24,  195  N.  Y. 
118. 

Restoring  benefits. 

On  rescission  of  contract  by  attorney,  see 
Attorneys,  35. 

By  married  woman,  see  Ejex;tment,  24,  25; 
Husband  and  Wife,  112, 

Restitution  in  equity,  see  Equity,  131. 

On  rescinding  contract  for  fraud,  see  Fbaud 
and  Deceit,  TO. 

By  infant,  see  Infants,  85,  92-96. 

On  cancelation  of  insurance  policy,  see  In- 
surance, 434-444. 

Returning  money  to  purchaser  at  foreclosuie 
sale  as  condition  of  right  to  attack 
title,  see  Mortgage,  131. 

Necessity  of  returning  consideration  for  re- 
lease before  repudiating,  see  Release, 
2-4. 

Return  of  consideration  as  condition  of 
revocation  of  grant  by  state,  see  State, 
2. 

Necessity  of  returning  consideration  for 
note  made  on  Sunday,  see  Sunday,  23. 

Contract  for  purchase  of  real  estate,  see 
Vendob  and  Pubchaseb,  ~Q. 

See  also  Cobpobations,  136. 

734.  The  general  rule  that  where  one 
party  asserts  a  right  to  rescind  a  contract 
for  nonperformance  of  his  covenant  by  the 
other,  the  party  seeking  rescission  must  re- 
store or  tender  back  to  the  other  party 
what  has  been  received  from  him,  so  as  to 
restore  the  status  quo,  does  not  apply  to 
a  case  where  one  agrees  to  teach  another  a 
certain  thing,  and,  after  beginning  the 
course  of  instruction,  refuses  to  proceed 
further,  whereupon  the  other  party  treats 
the  contract  as  rescinded,  and  brings  suit 


CONTRACTS,  V.  c,  3. 


673 


to  recover  the  amount  which  he  has  paid 
under  the  agreement.  Timniernian  v.  Stan- 
ley, 1 :  379,  51  S.  E.  760,  123  Ga.  850. 

(Annotated) 

735.  To  rescind  a  contract  to  carry  a  pas- 
«enger  on  a  sleeping  car  the  company  must 
tender  bacic  the  money  paid  for  the  passage. 
Pullman  Co.  v.  Krauss,  4:  103,  40  So.  398, 
145   Ala.    395. 

736.  A  formal  tender  of  consideration  re- 
•ceived  for  an  assignment  of  a  judgment  is 
not  i>ecessary  before  instituting  an  action 
for  its  rescission,  where  defendant  expressly 
refuses  to  accept  a  tender.  Fournier  v. 
€lutton,  7:  179,  109  N.  W.  425,  146  Mich. 
298. 

737.  A  married  woman  who  has  received 
title  to  real  estate  by  conveyance  from  her 
husband  acting  as  trustee  for  another  may, 
upon  repudiating  her  liability  to  pay  the 
consideration,  be  compelled  to  reconvey  the 
title.  Atkins  v.  Atkins,  11:273,  80  N.  E. 
«06,  195  Mass.  124. 

738.  A  trustee  who  has  received  part  of 
the  consideration  upon  conveying  trust 
property  to  his  wife  is  bound  to  return  it, 
together  with  the  taxes  paid  by  her,  upon 
securing  a  decree  for  reconveyance  of  the 
property,  when  she  refuses  to  be  bound  by 
her  contract.  Atkins  v.  Atkins,  11:  273,  80 
N.  E.   806,   195  Mass.   124. 

3.  Grtninds  of. 

{See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Cancelation  of  instrument  as  cloud  on  title, 
see  Cloud  on  Title,  4,  5,  25-28. 

Eight  to  cancelation  of  ultra  vires  contract 
of  corporation,  see  Coporations,  100. 

Cancelation  of  stock  subscription,  see  Cor- 
porations, 206-209. 

Cancelation  of  stock  fraudulently  issued,  see 
Corporations,  246,  247. 

Duress,  see  Duress. 

Estoppel  to  avoid,  see  Estoppel,  122,  227. 

As  to  cancelation  of  insurance  contract,  see 
Insurance,  III.  c. 

Eor  discharge  of  servant,  see  Master  and 
Servant,  113-322. 

Eescission  of  contract  of  sale,  see  Sale:,  III. 
c. 

739.  A  deed  in  consideration  of  an  agree- 
ment not  to  contest,  or  protest  against,  the 
granting  of  a  patent  for  government  land, 
will  not  be  rescinded  for  failure  to  comply 
with  the  latter  part  of  the  agreement  after 
the  time  is  past  when  a  contest  could  be 
made,  so  that  the  grantee  could  not  be 
placed  in  statu  quo.  Roy  v.  Harney  Peak 
Tin  Min.  Mill.  &  Mfg.  Co.  9:  529,  110  N.  W. 
100,  21  S.  D.  140. 

740.  In  the  absence  of  fraud  in  procuring 
a  deed  to  real  estate  it  will  not  be  canceled 
for  failure  to  comply  with  a  condition  sub- 
sequent, such  as  an  agreement  not  to  pro- 
test against  the  granting  of  a  patent  to 
government  land,  unless  the  right  to  can- 
celation is  conferred  by  the  deed.  Roy  v, 
Digest  1-52  ]1R.A.(N.S.) 


Harney   Peak    Tin   Min.   Mill.   &   Mfg.    Co. 
9:  529,  110  N.  W.  106,  21  S.  D.  140. 

741.  Mere  failure  on  the  part  of  the 
grantor  to  read  a  deed  before  signing  it  is 
not  ground  for  setting  the  conveyance  aside. 
Hale  V.  Hale,  14:  221,  59  S.  E.  1056,  62  W. 
Va.    609. 

For  fraud. 

What  questions  may  be  raised  by  one  seek- 
ing to  set  aside  contract  for  fraud,  see 
AcTiow  OR  Suit,  35a. 

As  against  assignee  for  creditors,  see  As- 
signment FOR  Creihtobs,  3. 

Rescission  of  sale  by  promoters  to  corpora- 
tion, see  Corporations,  196. 

Of  subscription  to  capital  "stock,  see  Corpo- 
rations, 208,  209. 

Effect  of  delay  in  rescinding  contract  for 
fraud,  see  Election  of  Remedies,  45. 

Equitable  jurisdiction  to  rescind,  see  Equi- 
ty, 43,  57-64. 

Estoppel  to  set  up  fraud,  ^see  Estoppex,  182. 

Evidence  to  show  fraud,  see  Evidence,  1016, 
1408,  1626. 

As  to  what  constitutes  fraud,  see  Fraud 
AND  Deceit. 

Conveyance  in  fraud  of  marital  rights,  see 
Husband  and  Wife,  II.  j. 

Amount  of  judgment  in  case  of,  see  Judg- 
ment, 39. 

Cancelation  of  pledged  notes,  see  Pledge 
AND  Collateral  Security,  17. 

In  contract  of  sale,  see  Sale,  112,  121,  206- 
218,  229. 

Contracts  for  purchase  of  land,  see  Vendor 

AND   PURCHASEB,   18,   68-72. 

See  also  infra,  759. 

742.  A  false  statement  of  present  in- 
tention as  to  the  use  to  which  the  lot  should 
be  put,  made  for  the  purpose  of  inducing 
the  sale  of  a  city  lot,  when  the  use  to  which 
the  lot  is  actually  to  be  put  will  greatly 
depreciate  the  value  of  the  remaining  prop- 
erty of  the  granter,  is  such  fraud  as  will 
justify  cancelation  of  a  deed  made  in  re- 
liance thereon.  Adams  v.  Gillig,  32:  127, 
!)2  N.  E.  670,  199  N.  Y.  314.        (Annotated) 

743.  The  words,  "Read  this,"  and,  "I  have 
read  this  contract,  have  had  delivered  to  me 
by  your  salesman  a  copy  of  same,  and  this 
is  all  of  the  contract  between  us,"  conspicu- 
ously printed  upon  the  face  of  a  contract, 
do  not  prevent  setting  aside  the  contract 
for  fraud  in  securing  its  execution,  where 
the  party  sought  to  be  charged  did  not  read 
the  contract,  but  relied  on  a  false  reading  by 
the  agent,  who  did  not  call  attention  to  such 
words.  Western  Mfg.  Co.  v.  Cotton  «&  Long. 
12:  427,  104  S.  W.  758,  126  Ky.  749. 

744.  A  tenant  by  the  curtesy  who  for 
several  years  has  been  in  the  habit  of  join- 
ing in  deeds  prepared  by  his  son,  conveying 
small  town  lots  belonging  to  the  wife,  is 
entitled  to  have  a  deed  so  prepared  and  pre- 
sented to  him  set  aside  as  having  been 
fraudulently  procured,  where  it  conveyed  to 
the  son  all  his  interest  in  his  wife's  real  es- 
tate in  consideration  of  one  dollar  and  nat- 
ural love  and  affection,  and  was  executed 
by  him  without  reading  it,  on  the  son's  rep- 
resentation that  it  conveyed  only  a  town  lot. 

43 


674 


CONTRACTS,  V.  c,  3. 


Hale  V.  Hale,  14:  221,  59  S.  E.  1056,  62  W. 
Va.  609. 

745.  An  action  for  the  rescission  of  an 
"oil  lease  because  of  alleged  fraudulent  rep- 
resentations as  to  the  quantity  of  oil  pro- 
duced, is  not  defeated  by  the  fact  that  the 
plaintiff,  for  a  period  of  six  weeks  after  the 
discovery  of  the  true  capacity  of  the  proper- 
ty and  before  the  bringing  of  the  action  for 
rescission,  used  a  quantity  of  the  oil  taken 
from  the  property,  but  the  lessee  may  be 
granted  relief  upon  payment  of  the  value  of 
such  oil  when  substantial  justice  will  be 
thereby  promoted,  notwithstanding  that  by 
his  own  act  he  has  rendered  impossible  the 
restoration  of  a  portion  of  the  oil.  Basye 
V.  Paola  Refining  Co.  25:  1302,  101  Pac.  658, 
79  Kan.  755.  (Annotated) 

746.  One  who  has  been  induced  to  enter 
into  a  contract  to  perform  public  work  by 
fraudulently  underestimating  the  amount 
of  work  to  be  done  and  concealing  from  him 
the  plans  and  specifications  in  accordance 
with  M'hich  he  is  to  do  the  work,  or  by 
mutual  mistake  based  on  erroneous  esti- 
mates of  the  public's  engineer  of  the  amount 
of  work  to  be  done,  may,  in  absence  of 
laches  or  negligence  on  his  part,  maintain  a 
bill  for  cancelation  •>*  the  contract  ana  re- 
covery of  whatever  money  may  be  in- 
cidentally necessary  to  afford  full  relief, 
if  defendants  can  be  put  substantially  into 
their  original  posi'ion.  Long  v.  Athol, 
17:  96,  82  N.  E.  665,  196  Mass.  497. 
Mistake. 

Mistake  as  ground  for  relief  in  equity,  see 
Equity,  I.  d. 

Evidence  to  show  mistake  justifying  can- 
celation, see  Evidence,  1021. 

Allegations  as  to,  see  Pleading,  446. 

As  to  rescission  of  sale,  see  Sale,  204. 

See  also  supra,  650,  651,  746. 

747.  A  unilateral  mistake  in  the  making 
of  a  contract,  of  which  the  other  contracting 
party  is  entirely  ignorant,  and  to  wlach  he 
in  110  way  contributes,  will  not  affect  the 
contract,  or  afford  grounds  for  its  avoidance 
or  rescission,  unless  it  be  such  a  mistake 
as  goes  to  the  substance  of  the  contract 
itself.  Tatum  v.  Coast  Lumber  Co.  23:  1109, 
101    Pac.   957,    16   Idaho,   471. 

748.  The  mutual  mistake  of  the  parties  to 
a  deed  as  to  the  extent  of  the  grantor's  in- 
terest in  the  land  at  the  time  it  was  con- 
veyed is  one  against  which  equity  will  af- 
ford relief.  Burton  v.  Haden,  15:  1038,  60 
S.  E.  736,  108  Va.  51.  (Annotated) 

749.  A  mistake  in  adding  a  column  of 
figures  representing  the  extension  of  items 
for  the  furnishing  of  which  a  price  has  been 
asked,  the  result  of  which  is  adopted  as  the 
basis  of  a  bid  for  the  contract  of  furnishing 
the  material,  cannot,  after  acceptance  of  the 
bid,  be  made  the  basis  of  a  suit  in  equity  to 
cancel  the  contract.  Steinmever  v.  Schroep- 
pel,  10:  114,  80  N.  E.  564,  226  111.  9. 

(Annotated) 

750.  One  who,  acting  under  advice  of 
counsel  learned  in  the  law  as  to  the  extent 
of  his  rights  in  another's  estate,  grants  all 
his  property  to  another  for  a  certain  con- 
siUeration,  may  avoid  the  deed  upon  learn- 

Digest   1-52  L.R.A.(N.S.) 


ing  that  his  interest  was  in  fact  much  lar- 
ger than  he  was  advised  it  was.  Hoy  v. 
Hoy,  25:  182,  48  So.  903,  93  Miss.  732. 

761.  One  who  has  contracted  to  do  pub- 
lic work  according  to  the  plans  and  speci- 
fications, in  reliance  upon  the  estimate  of 
the  engineer  in  charge  of  the  work  on  be- 
half of  the  public,  which  believes  the  esti- 
mate to  be  correct,  is  not  precluded  from 
securing  a  cancelation  in  case  the  estimate 
is  not  even  approximately  correct,  by  the 
fact  that  the  contract  stipulates  that  the 
estimate  is  approximate  only,  and  that  he 
is  satisfied  therewith  and  has  judged  for 
himself  as  to  all  conditions  affecting  the 
cost  of  performance.  Long  v.  Athol,  17:  96, 
82  N.  E.  665,  196  Mass.  497. 

752.  That  work  already  done  on  a  public 
contract  shows  that  the  original  estimate 
is  not  correct,  so  that  a  new  contract  can- 
not be  secured  on  as  advantageous  terms, 
will  not  prevent  a  cancelation  of  the  con- 
tract for  mutual  mistake  as  to  the  amount 
of  work  required,  on  the  theory  that  the 
public  cannot  be  put  in  statu  quo.  Long 
V.  Athol,  17:  96,  82  N.  E.  665,  196  Mass.  497. 

753.  A  municipal  corporation  which  has 
induced  a  contractor  to  undertake  public 
work  by  mutual  mistake  as  to  the  amount 
to  be  done  is  placed  in  statu  quo,  so  as  to 
warrant  cancelation  of  the  contract,  by  be- 
ing required  to  pay  merely  the  full  value  of 
the  labor  and  materials  already  furnished. 
Long  V.  Athol,  17:  96,  82  N.  E.  665,  196 
Mass.  497. 

754.  A  municipal  corporation  cannot 
avoid  cancelation  of  a  contract  for  piiblie 
work  based  on  the  estimate  of  its  engineer, 
on  the  theory  that  it  did  not  represent  tlie 
estimate  to  be  true,  and  did  nothing  to 
prevent  full  investigation  by  the  contractors. 
Long  V.  Athol,  17:  96,  82  N.  E.  665,  196 
Mass.  497. 

Incompetency;  drunkenness. 
See  also  infra,  759;  Bills  and  Notes,  13- 
16;  Dbunkenness,  1. 

755.  Equity  will  cancel  a  deed  procured 
from  a  person  of  weak  understanding,  who 
is  unable  to  guard  himself  against  imposi- 
tion or  resist  importunity.  Sprinkle  v. 
Wellborn,  3:  174,  52  S.  E.  666,  140  N.  C.  163. 

756.  The  sale  of  a  remainder  worth  more 
than  three  times  the  consideration  offered,, 
which  is  to  be  paid  only  when  it  comes  in- 
to possession  of  the  grantee,  by  a  man  who- 
is  feeble-minded  and  has  never  done  busi- 
ness on  his  own  responsibility,  to  one  who. 
had  no  equitable  right  to  such  a  contract, 
may  be  set  aside.  Greene  v.  Maxwell,  36: 
418,  96  N.  E.  227,  251  111.  335. 

757.  To  relieve  one  from  a  contract  made 
while  intoxicated,  he  must  have  been  so 
completely  under  the  influence  of  intoxicants 
as  not  to  be  able  to  understand  the  effect 
and  consequences  of  the  business  transac- 
tion. Kuhlman  v.  Wieben,  2:  666,  105  N.  W. 
445,  129  Iowa,  188.  (Annotated) 

758.  Equity  will  cancel  a  deed  made  by 
one  in  drunkenness,  though  his  reason  may 
not  have  been  wholly  overthrown,  wliere 
fraudulent  advantage  has  been  taken,  or 
where    the    drunkenness    has    been    bio  ight 


CONTRACTS,  VI.  a. 


675 


about  by  the  other  party.     Miller  v.  Ster- 
ringer,  25:  596,  66  S.  E.  228,  66  W.  Va.  169. 
Undue  influence. 
Effect  of,  on  validity  of  wills,  see  Wills, 

I.  d. 
See  also  supra,  619. 

759.  In  order  to  justify  the  setting  aside 
of  a  conveyance  of  property  on  the  ground 
of  fraud,  there  must  be  shown  a  subject 
unquestionably  susceptible  to  undue  in- 
fluence either  as  the  result  of  old  age,  men- 
tal weakness  or  both,  and  also  some  clear 
evidence  of  opportunity  and  the  disposition 
on  the  part  of  the  beneficiary  to  exercise 
such  inlluence,  in  order  to  raise  the  pre- 
sumption of  such  exercise  and  call  upon 
the  defendant  to  so  far  weaken  it  at  least 
as  to  destroy  efficiency  to  establish  the 
ultimate  facts.  Boardman  v.  Lorentzen, 
52:  476,  145  N.  W.  750,  155  Wis.  566. 
Breach,  repudiation,  or  delay. 
Cancelation  of  oil  or  gas  lease,  see  Mines, 

77-83. 
See  also  supra,  702,  715,  716,  733. 

761.  The  acceptance  by  one  who  has  con- 
tracted for  ice  to  be  delivered  from  day  to 
day  in  such  quantities  as  he  may  designate, 
of  less  than  the  quantity  designated  on  a 
particular  day,  will  prevent  his  rescission 
of  the  contract  for  refusal  to  deliver  the  en- 
tire amount  of  the  instalment.  Wolfert  v. 
Caledonia  Springs  Ice  Co.  21:  864,  88  N.  E. 
24,   195  N.  Y.   118.  (Annotated) 

762.  Breach  of  an  agreement  to  care  for 
a  man  and  his  wife  in  consideration  of  be- 
ing made  his  insurance  beneficiary  will  jus- 
tify him  in  having  a  new  certificate  of  in- 
surance issued  naming  his  wife  as  bene- 
ficiarv.  Ptacek  v.  Pisa,  14:  537,  83  N.  E. 
221,  231  111.  522. 

763.  Failure  to  pay  for  instalments  as  de- 
livered, according  to  contract,  in  case  of  a 
purchase  of  a  quantity  of  material  to  be 
delivered  in  instalments,  justifies  the  seller 
in  refusing  to  make  further  deliveries.  Al- 
pha Portland  Cement  Co.  v.  Oliver,  38: 
416,  140  S.  W.  595,  125  Tenn.  135. 
Inadequacy  or  failure  of  considera- 
tion. 

Jurisdiction  of  equity  to  cancel,  see  Equity, 

91. 
Antenuptial    contract,    see    Husband    and 

Wife,  133. 
See  also  supra,  728,  728a. 

764.  Mere  inadequacy  of  consideration 
does  not  afford  a  sufficient  reason  for  setting 
aside  the  conveyance  of  a  contingent  inter- 
est in  real  property,  or  what  approximates 
thereto, — for  example,  the  interest  which  a 
son  acquired  in  consequence  of  the  remar- 
riage of  his  mother  under  a  statute  which 
prohibited  a  widow,  after  her  second  mar- 
riage, from  selling  or  conveying  her  inter- 
est in  her  prior  husband's  real  estate,  and 
provided  that,  at  her  death,  the  title  should 
vest  in  her  children  by  her  former  husband. 
The  rule,  however,  is  otherwise  with  respect 
to  sale  by  expectant  heirs  of  their  supposed 
interest  in  the  lands  of  living  ancestors. 
McAdams  v.  Bailey,  13:  1003,  82  N.  E.  1057, 
169  Ind.  518. 

Digest   1-52  I<.R.A.(N.S.) 


765.  The  discontinuance  of  the  publica- 
tion of  a  series  of  law  books  does  not  con- 
stitute a  failure  of  consideration  for  a  con- 
tract of  subscription  entered  into  in  reli- 
ance upon  a  representation  made  in  good 
faith  that  such  publication  would  continue. 
Bigelow  v.  Barnes,  45:  203,  140  N.  W.  1032, 
121  Minn.  148.  (Annotated) 

766.  Equity  will  not  rescind  a  convey- 
ance of  land  to  a  railroad  company  in  con- 
sideration of  passes  to  be  issued  to  the 
grantor  for  life,  upon  the  passage  of  a 
statute  forbidding  further  issuance  of  passes 
by  the  railroad  company,  if  it  has  sub- 
stantially complied  with  its  contract,  and 
the  land  has  materially  increased  in  value 
since  the  conveyance.  Cowley  v.  Northern 
P.  R.  Co.  41:  559,  123  Pac.  998,  68  Wash.  558. 

767.  A  deed  in  consideration  of  a  home 
with  grantees  in  the  house  conveyed,  care 
in  sickness,  and  burial  at  death,  will  be  set 
aside  if  the  grantees  immediately  upon  se- 
curing it  treat  the  grantor  with  such  harsh- 
ness as  to  terrorize  him,  and  move  from  the 
property,  leaving  the  grantor  alone  in  the 
house,  although  the  grantees  invite  him  to 
accompany  them  to  the  new  abode.  Tvsor 
V.  Adams,  51:  1197,  81  S.  E.  76.  116  Va.  239. 

768.  Failure  to  furnish  support  in  accord- 
ance with  a  promise  which  becomes  the  con- 
sideration for  a  deed  absolute  in  form  is 
not  sufficient  to  support  a  suit  for  its  can- 
celation. Dixon  V.  Milling,  43:  916,  59  So. 
804,  102  Miss.  449.  (Annotated) 

769.  A  parent  who  conveys  real  property 
to  his  son  in  consideration  of  the  son's  agree- 
ment, evidenced  by  a  separate  instrument 
in  the  form  of  a  bond  in  a  penal  sum  the 
payment  of  which  is  conditioned  on  failure 
to  perform,  to  support  and  maintain  the 
parent  during  the  remainder  of  his  life, 
may,  in  an  equitable  action  for  breach  of 
the  agreement,  have  the  deed  or  conveyance 
set  aside  or  the  amount  due  under  the  agree- 
ment made  a  charge  or  lien  against  the 
land,  or  such  other  relief  as  the  equities  be- 
tween the  parties  may  justify,  irrespective 
of  whether  or  not  the  agreement  of  support 
be  considered  a  condition  subsequent,  as 
the  form  thereof  is  immaterial.  Bruer  v^ 
Bruer,  28:  608,  123  N.  W.  813,  109  Minn.  260. 

(Annotated) 

770.  Equity  may  set  aside  a  deed  execut- 
ed by  an  employee  to  his  employer  to  avoid 
threatened  prosecution  for  embezzlement 
of  which  he  was  not  guilty,  although  the 
seal  would  prevent  showing  lack  of  con- 
sideration at  law.  Kronmever  v.  Buck,  45: 
1 182,  101  N.  E.  935,  258  Ilf.  580. 

VI.  Actions,'  liabilities, 

a.  In  general. 

(See   also   same   heading   in  Diqest   L.R  A 
1-10.) 

Remedies  on  illegal  contract,  see  supra,  III. 


676 


CONTRACTS,  VI.  b. 


Right  of  carrier  to  take  advantage  of  con- 
tract between  sleeping  car  company  and 
its  employees  as  to  release  from  liabil- 
ity for  injury,  see  Cajeiriees,  665,  667. 

Interference  with  contract  relations,  see 
Case,  II, 

Measure  of  compensation  for,  see  Damages, 
III.  a. 

Choice  of  remedy  for  breach,  see  Election 
OF  Remedies,  14-17. 

Eflfect  of  pursuing  one  remedy,  see  Elec- 
tion OF  Remedies,  II. 

When  statute  of  limitations  begins  to  run, 
see  Limitation  of  Actions,  II.  b. 

Right  of  action  on,  generally,  see  Parties, 

I.  a,  2. 

Parties  defendant  to   action,   see   Parties, 

II.  a,  3. 

771.  The  decision  of  the  architect,  re- 
quiring the  use  of  the  material  specified,  is 
ttot  finally  binding  on  the  contractor,  under 
a  building  contract  permitting  the  use  of 
such  material  or  equal,  but,  if  the  contractor 
produces  material  equal  to  that  specified, 
he  has  a  right  to  the  architect's  approval  of 
it,  and  to  resort  to  the  courts  in  case  of 
his  arbitrary  refusal  to  approve.  Camp  v. 
Xeuf elder,  22:  376,  95  Pac.  640,  49  Wash. 
426. 

772.  That  a  contractor,  at  the  instigation 
of  the  architect,  uses  material  in  the  build- 
ing of  a  class  expressly  allowed  by  the  con- 
tract, does  not  estop  him  from  holding  the 
owner  of  the  building  liable  for  the  loss 
thereby  sustained  if  the  contract  permitted 
him  to  use  other  material,  which  he  could 
have  procured  at  less  cost  than  that  fur- 
nished. Camp  V.  Neuf elder,  22:  376,  95  Pac. 
640,  49  Wash.  426. 

773.  A  contract  by  one  who  induces  an- 
other to  enter  his  employment,  to  will  him 
a  certain  sum  to  compensate  him  for  the 
business  which  he  gives  up  to  do  so,  will  not 
support  an  action  at  law  for  damages  dur- 
ing the  lifetime  of  the  promisor,  although 
he  dismisses  the  employee  from  his  service 
without  cause.  Warden  v.  Hinds,  25:  529, 
163  Fed.  201,  90  C.  C.  A.  449. 

ft.  Defenses. 

(See  also   same   heading   in  Digest   L.R.A. 

i-rt(y.) 

Remedies  on  illegal  contract,  see  supra.  III. 

g- 

As  to  defenses,  generally,  see  Action  ob 
Suit,  I.  c. 

Defenses  to  action  on  note,  see  Bills  and 
Notes,  VI.  c. 

Estoppel  to  set  up,  see  Estoppel,  III.  d. 

Failure  of  consideration  as  defense  to  ac- 
tion to  recover  gift,  see  Gift,  4. 

In  foreclosure  suit,  see  Mortgage,  VI.  d. 

Violation  of  Sunday  law  as,  see  Sunday, 
V. 

774.  Neglect  to  interpose  objections  to  the 
probate  of  a  will  will  not  prevent  the  en- 
forcement of  a  contract  made  in  anticipa- 
Digest  1-52  I..R.A.(N.S.) 


tion  of  marriage,  the  provisions  of  which 
are  antagonistic  to  the  will.  Phah-n  v. 
United  States  Trust  Co.  7:734,  78  N.  E. 
943,  186  N.  Y.  178. 

775.  A  party  cannot  defeat,  and  is  not 
entitled  to  be  relieved  from,  the  obligation 
of  a  written  contract,  merely  l)y  showing 
that  he  signed  it  without  having  read  it 
and  in  ignorance  of  its  contents;  but  he 
is  at  liberty  to  show  that,  by  the  artifice, 
deception,  and  fraud  of  the  other  party  or 
his  agent,  he  was  induced  to  sign  it  without 
having  read  it,  and  upon  the  assurance  and 
under  the  belief,  superinduced  by  the  other  4 
party,  that  it  was  a  paper  wholly  different 

in  character  from  the  one  signed.  Acme 
Food  Co.  V.  Older,  17:  807,  61  S.  E.  235,  64 
W.  Va.  255. 

776.  One  who,  by  falsely  representing  to 
another  that  a  written  contract  contains 
the  provisions  agreed  upon  between  them, 
induces  him  to  sign  it,  is  not  entitled  to  en- 
force the  contract,  although  the  one  who 
signed  it  did  so  without  reading  it  or  hav- 
ing it  read  to  him.  Shook  v.  Puritan  Mfg. 
Co.  8:  1043,  89  Pac.  653,  75  Kan.  301. 

777.  That  a  contract  between  physician 
and  patient  is  presumptively  fraudulent 
may  be  interposed  as  a  defense  in  an  action 
at  law  to  enforce  it.  Re  McVicker,  28:  nxa, 
91   N.  E.   1041,  245   111.   18U. 

778.  The  fact  that  the  parties  to  an  ex- 
press contract  for  services  to  be  rendered 
by  a  woman  for  a  man  as  housekeeper 
and  servant  maintained  illicit  relations 
with  each  other  during  the  time  the  serv- 
ices were  being  rendered  does  not  render 
the  contract  unenforceable,  where  it  was 
not  made  in  contemplation  of  such  illicit 
relationship,  and  the  claim  for  compensa- 
tion is  not  based  thereon,  Emmerson  v. 
Botkin,  29:  786,  109  Pac.  531,  26  Okla.  218. 

(Annotated) 

779.  It  is  no  defense  to  a  contract  that 
has  been  performed  by  the  promisee,  that 
the  promisor  knew  that  the  agreement  or 
its  performance  might  aid  the  promisee  to 
violate  a  law  or  public  policy,  when  the 
promisor  did  not  combine  or  conspire  with 
the  promisee  to  accomplish  that  result,  and 
did  not  share  in  the  benefit  of  such  a  vio- 
lation. Mechanics  Ins.  Co.  v.  C.  A.  Hoover  • 
Distilling  Co.  31:  873,  182  Fed.  590,  105  C. 

C.    A.    128. 

780.  One  who  is  required  by  judgment  to 
deed  property  upon  receiving  a  certain  sum 
in  payment  of  the  amount  due  cannot  es- 
cape liability  for  evading  tender,  to  the 
injury  of  the  other  party,  on  the  theory 
that  tender  might  have  been  made  to  the 
attorney  of  record,  or  the  mwiey  paid  into 
court,  if  the^e  is  nothing  to  show  that  such 
tender  or  payment  would  have  secured  a 
conveyance.  Loehr  v.  Dickson,  30:  495,  124 
N.  W.  293,  141  Wis.  332. 

781.  Failure  to  have  an  ordinance  passed 
authorizing  a  frame  building  within  the  fire 
limits,  so  as  to  allow  the  work  to  be  begun 
at  a  certain  time,  is  no  defense  to  an  action 
for  breach  of  a  building  contract,  if  the  ordi- 

[  nance  was  in  fact  passed,  and  there  is  noth- 
m"  to  show  that  the  building  contract  fixed 


CONTRACTS,  VII.  a. 


677 


any  time  when  work  should  be  commenced, 
or  that  thei'e  was  any  consideration  for  the 
agreement  as  to  the  ordinance.  Shriner  v. 
Craft,  28:  450,  51   So.  884,  166  Ala.  146. 

782.  The  owner  who  wrongfully  rescinds 
a  building  contract  before  the  time  pro- 
vided for  its  expiration  cannot  avoid  lia- 
bility for  damages,  on  the  theory  that  it 
would  have  cost  the  contractor  more  than 
the  contract  price  to  complete  it;  but  the 
contractor  is  entitled  to  recover  on  quantum 
meruit  for  the  service  performed  to  the 
time  of  rescission.  Brady  v.  Oliver,  41:  60, 
147  S.  VV.  1135,  125  Tenn.  595. 

VII.  Puhlic  contracts, 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  implied  contracts,  see  supra,  39-50. 

Definiteness  of,  see  supra,  154. 

Remedies  on  invalid  public  contract,  see 
supra,  614-617. 

Validity  of  contract  aflfecting  bid,  see  supra, 
615. 

Validity  of  contract  aifecting  official  action, 
see  supra.  III.  c,  4. 

Validity  of  contract  with  public  officer,  see 
supra.  III.  c,  5. 

Recovery  on  part  performance  of,  see  supra, 
650,  651. 

Cancelation  of,  see  supra,  746,  751-754; 
Evidence,  1021. 

Nature  of  suit  by  taxpayer  to  restrain  car- 
rying out  of  public  contract,  see  Action 
OR  Suit,  55. 

Assignment  of,  see  Assignment,  30. 

Bond  of  contractor  for  public  work,  see 
Bonds,  8-19,  21-23. 

Parol  evidence  to  show  intention  of  sureties 
on  contractor's  bond,  see  Evidence,  980. 

Who  may  maintain  suit  on  contractor's 
bond,  see  Parties,  85,  87. 

Statute  discriminating  in  favor  of  union 
labor,  see  Constitutional  Law,  474, 
475. 

Statute  nullifying  contract  for  construction 
of  state  building,  see  Constitutional 
Law,  769. 

Contracts  of  county,  see  Counties,  II.  d. 

Liability  for  damages  of  one  preventing  an- 
other from  securing,  see  Damages,  3. 

Damages  for  breach  of,  see  Damages,  104, 
105. 

Forfeiture  of  deposit,  see  Forfeiture,  3. 

Right  to  exclude  one  already  enjoying  simi- 
lar franchise  from  competing  for  public 
franchise,  see  Franchises,  1. 

Conclusiveness  of  judgment  against  tax 
payer  seeking  to  restrain  contract  as  to 
street  improvements,  see  JtnwMENT, 
158. 

Judgment  as  bar  against  carrying  out  of 
contract  with  school  district,  see  Judg- 
ment, 230,  231. 

Mandamus  to  compel  city  engineer  to  fur- 
nish monthly  estimates  of  completion 
of  work  under,  see  Mandamus,  44,  45. 

Digest  1-52  i:,.R.A.(N.S.) 


As  to  contracts  of  municipality  generally, 
see  Municipal  Corporations,  II.  d. 

Personal  liability  of  public  officer  on,  see 
Officers,   100,   101. 

Who  may  maintain  action  on,  see  Parties, 
94-97;  Towns,  13-15. 

Taxpayer's  action  to  test  validity  of  con- 
tract, see  Parties,  121. 

Injunction  against  letting  or  performance 
of  illegal  contrast,  see  Parties,  132- 
134. 

Injunction  against  payment  of  money  on, 
see  Parties,  130,  131. 

Sufficiency  of  pleading  in  action  on,  see 
Pleading,  239. 

For  public  improvements,  see  Public  Im- 
provements, II. 

Power  of  board  of  education  to  enter  into, 
see  Schools,  36,  37,  38. 

Of  school  district,  see  Schools,  55-58. 

With  water  company,  see  Waters,  354. 

783.  The  terms  of  a  contract  for  the 
rendering  of  a  service  of  a  public  nature  are 
subject  to  the  right  of  the  governmental 
authority,  imder  existing  laws,  to  regulate 
the  rendering  of  the  service  and  the  charges 
made  therefor.  State  ex  rel.  Ellis  v.  Tampa 
Waterworks  Co.  22:  680,  48  So.  639,  57 
Fla.  533. 

784.  An  ambiguous  or  doubtful  contract 
between  a  telephone  company  and  a  mu- 
nicipal corporation  in  which  it  is  to  trans- 
act business,  as  to  the  rights  of  the  public 
under  it,  will  be  construed  in  favor  of  the 
public  rights.  Colorado  Teleph.  Co.  v. 
Fields.  30:  1088,  110  Pac.  571,  15  N.  M.  431. 

785.  To  the  construction  of  a  contract  be- 
tween a  telephone  company  and  a  munic- 
ipality in  which  it  is  to  transact  business, 
the  rule  applies  that  where  a  contract  as 
a  whole  discloses  a  given  intention,  if  cer- 
tain words  or  clauses  taken  literally  would 
defeat  the  intention,  it  will  be  construed, 
if  possible,  so  as  to  be  consistent  with  the 
general  intent.  Colorado  Teleph.  Co.  v. 
Fields,  30:  1088,  110  Pac.  571,  15  N.  M.  431. 
lamitation  of  hours  of  labor. 
Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  301-303. 

Presumption  of  violation  of  statute  regulat- 
ing hours  of  labor,  see  Evidence,  691. 

Construction  of  statute  limiting  hours  of 
labor  on  public  work,  see  Statutes, 
235. 

786.  The  legislature  may  constitutionally 
limit  the  hours  of  labor  of  those  employed 
upon  public  contracts.  Opinion  of  the  Jus- 
tices, 34:  771,  94  N.  E.  1044,  208  Mass.  619. 

( Annotated ) 

787.  A  statute  regulating  the  hours  of 
labor  on  public  work  applies  to  a  contract 
entered  into  after  its  passage,  for  the  com- 
pletion of  work  which  had  begun  imder  an- 
other contract  originating  before  its  pas- 
sage, but  which  the  municipality  had  ter- 
minated. People  ex  rel.  Williams  Engineer- 
ing &  C.  Co.  V.  Metz,  24:  201,  85  N.  E.  1070, 
193  N.  Y.  148. 

788.  A  legislature  having  constitutional 
authority  to  limit  the  hours  of  labor  upon 
public    work   may   forbid   municipalities   to 


678 


CONTRACTS,  VII.  b. 


pay  for  work  in  the  performance  of  wliich 
its  requirements  as  to  hours  of  labor  are 
violated.  People  ex  rel.  Williams  Engineer- 
ing &  C.  Co.  V.  Metz,  24:  201,  85  N,  E.  1070, 
193  N.  Y.  148. 

789.  A  municipal  corporation  does  not 
waive  the  benefit  of  a  statute  forbidding  it 
to  pay  for  public  work  on  which  labor  is 
performed  for  more  than  a  specified  number 
of  hours  per  day,  when  it  refuses  payment 
of  the  first  amounts  becoming  due  under  the 
contract,  and  acts  as  soon  as  it  reasonably 
can  after  receiving  notice  of  the  facts,  al- 
though it  has  permitted  the  performance 
of  the  work,  of  which  it  will  receive  the 
benefit.  People  ex  rel.  Williams  Engineer- 
ing &  C.  Co.  V.  Metz,  24:  201,  85  N.  E.  1070, 
193  N.  Y.  148. 

Minimnm  -wage. 

Review  by  courts  of  ordinance  fixing  mini- 
mum wage  in  public  contracts,  see 
Courts,  162. 

790.  A  cily  is  not,  in  contracting  for  the 
construction  of  a  sewer  to  be  paid  for  by 
special  assessment  upon  property  benefited, 
the  agent  of  the  property  owner  and  re- 
quired to  do  the  work  for  the  lowest 
price  possible,  so  that  it  cannot  stipu- 
late for  a  minimum  wage  for  common 
labor  in  excess  of  the  prevailing  wage  for 
similar  labor  on  private  contracts,  at  least, 
where  it  is  not  required  to  let  the  contract 
to  the  lowest  bidder.  Malette  v.  Spokane, 
51:686,  137   Pac.  496,  77   Wash.  205. 

( Annotated ) 

h.  Advertisements  and  bids;  letting. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Statute  requiring  all  county  printing, 
binding,  etc.,  to  be  done  within  county, 
see  Commerce,  7;  Constitutional 
Law,  454. 

Taxpayer's  right  to  examine  papers  on 
which  commission  acted  in  awarding 
contract,  see  Records  and  Recording 
Laws,  9. 

Construction  of  statute  as  to,  see  Statutes, 
252. 

791.  A  contract  for  public  Improvement 
is  not  invalidated  by  the  fact  that  after 
the  award  was  made,  but  before  the  con- 
tract was  executed,  the  bid  was  reduced  by 
way  of  relinquishment  to  the  public  of  a 
part  of  the  price.  Kelling  v.  Edwards, 
38:  668,   134  N.  W.  221,  116  Minn.  484. 

792.  One  bidding  for  public  work  is  not 
bound  to  employ  a  skilled  engineer  to  test 
the  accuracy  of  the  estimates  of  the  pub- 
lic engineer  of  the  amount  of  work  to  be 
done,  which  is  given  out  as  the  basis  for  the 
bids.  Long  v.  Athol,  17:  96,  82  N.  E.  665. 
196   Mass.   497. 

Necessity  of  advertising;  plans  and 
specifications. 

793.  A  municipal  corporation  having 
charter  power  to  keep  its  streets  in  repair 
is  not  bound  to  advertise  for  competitive 
Digest  1-52  L.R.A.(N.S.) 


bidding  for  the  construction  of  a  pavement, 
unless  the  statute  so  provides.  Dillingham 
V.  Spartanburg,  8:  412,  56  S.  E.  381,  75  S.  C. 
549. 

794.  Failure  to  comply  with  a  statute  re- 
quiring public  officers  to  advertise  for  bids 
for  street  work  does  not  invalidate  a  con- 
tract made  without  such  advertising,  unless 
the  statute  makes  it  a  condition  of  the  exer- 
cise of  the  powei  to  contract.  Dillingham  v. 
Spartanburg,  8:  412,  56  S.  E.  381,  75  S.  C. 
549. 

795.  The  plans  and  specifications  for  a 
heating  and  ventilating  system  of  a  school 
building,  adopted  by  a  board  of  education 
previous  to  the  advertisement  for  bids  un- 
der a  statute  providing  that  such  board 
shall  make  no  contract  involving  an  ex- 
penditure of  more  than  $500  for  the  purpos'3 
of  erecting  any  public  building  or  making 
any  improvement,  except  by  sealed  pro- 
posals and  to  the  lowest  responsible  bidder, 
must  be  so  definite  and  detailed  as  to  dis- 
close the  specific  thing  to  be  undertaken, 
so  as  to  enaDle  all  bidders  to  make  a  defi- 
nite bid  on  a  common  standard,  previously 
ascertained,  for  definite  work  to  be  done. 
Hannan  v.  Board  of  Education,  30:  214, 
107    Pac.    646,    25    Okla.    372. 

(Annotated) 

796.  The  letting  of  a  contract  for  the  in- 
stallation of  a  heating  and  ventilating  sys- 
tem in  a  proposed  public  school  building, 
as  to  which  complete  plans  and  specifica- 
tions, but  not  including  heating  and  ven- 
tilating, were  on  file,  without  making  or  fil- 
ing any  plans  and  specifications  except  ad- 
vertisements for  bids,  which  stated  that  bids 
accompanied  by  plans  and  specifications  in 
the  form  of  a  proposal  for  a  steam  force 
blast  system  of  heating  and  ventilating,  con- 
trolled by  automatic  heat  regulation,  and 
specifying  the  amount  of  air  each  pupil 
was  to  receive,  and  the  degrees  to  which 
the  different  portions  of  the  building  were 
to  be  heated  in  the  coldest  weather,  would 
be  received,  thereby  leaving  the  bidders  to 
submit  plans  and  specifications  showing  the 
kind  of  power,  radiation  apparatus,  regis- 
ters, appliances,  and  appurtenances  of  all 
kinds,  violates  a  statute  requiring  the 
plans  and  specifications  submitted  to  the 
bidders  to  be  so  definite  and  detailed  as  to 
enable  the  bidders  to  make  a  definite  bid 
on  a  common  standard,  previously  ascer- 
tained, for  definite  work  to  be  done.  Han- 
nan V.  Board  of  Education,  30:  214,  107  Pac. 
646,  25  Okla.  372. 

Letting  tc   lo^irest  bidder. 

Constitutionality  of  statute  discriminating 
in  favor  of  union  labor,  see  Consti- 
tutional Law,  474. 

Review  by  courts  of  question  whether  bidder 
is  the  lowest  responsible  bidder,  see 
Courts,  136. 

Mandamus  to  compel  award  of  contract  to 
lowest  bidder,  see  Mandamus,  28. 

See  also  Public  Improvements,   15,   16. 

797.  A  statutory  requirement  that  con- 
tracts for  public  improvements  shall  be  let 
to  the  lowest  respaiisible  bidder  involves  a 
consideration    not    only    of   which    bid   waa 


CONTRADICTION;  CONTRIBUTION  AND  INDEMNITY. 


679 


the  lowest  in  price,  but  also  the  ascertain-  | 
ment  of  the  ability  of  bidders  to  discharge 
all  the  obligations  assumed  in  accordance 
with  what  is  expected  or  may  be  demanded 
under  ciie  terms  of  the  contract.  Hannan 
V.  Board  of  Education,  30:  214,  107  Pac. 
646,  25   Okla.   372. 

798.  The  word  "responsible"  in  the  phrase 
"lowest  responsible  bidder,"  in  a  statute 
providing  for  competitive  bids  before  award- 
ing contracts  for  public  improvements,  im- 
plies skill,  judgment,  and  integrity  neces- 
sary to  a  faithful  performance  of  the  con- 
tract, as  well  as  sufficient  financial  re- 
sources and  ability.  Williams  v.  Topeka, 
38:672,   118  Pac.  864,  85  Kan.   857. 

(Annotated) 

799.  In  awarding  a  contract  under  a 
statute  providing  for  the  construction  of  a 
drainage  ditch,  the  county  auditor,  in  de- 
termining who  is  the  "lowest  responsible 
bidder,"  is  not  limited  to  an  inquiry  as  to 
financial  responsibility,  but  may,  in  the  ex- 
ercise of  the  discretion  vested  in  him,  in- 
quire also  as  to  the  fitness  and  ability  of 
the  bidders  to  do  and  perform  the  partic- 
ular work.  Kelling  v.  Edwards,  38:  668, 
134  N.  W.  221,  116  Minn.  484. 

800.  That  a  bidder  for  public  work  is  in 
default  as  to  other  public  contracts  may  be 
sufficient  to  justify  the  rejectment  of  his 
bid,  under  a  statute  requiring  the  letting 
of  such  contracts  to  the  lowest  responsible 
bidder.  Kelling  v.  Edwards,  38:  668,  134 
N.  W.  221,  116  Minn.  484. 

801.  The  incorporation  into  an  advertise- 
ment for  bids  for  the  construction  of  public 
works,  or  into  the  specifications  of  the 
work  upon  which  the  bids  are  predicated,  of 
illegal  or  unauthorized  conditions  or  obli- 
gations upon  the  contractor,  compliance 
with  which  on  his  part  will  necessarily  and 
illegally  increase  the  cost  of  the  work,  is 
not  a  letting  of  the  contract  to  the  lowest 
bidder  within  the  meaning  of  such  a  re- 
quirement in  the  city  charter,  and  will  ren- 
der the  contract  illegal  and  void.  Ander- 
son V.  Fuller,  6:  1026,  41  So.  684,  51  Fla. 
380. 

802.  A  statute  requiring  all  county  print- 
ing, binding,  and  stationery  work  to  be 
done  in  the  county  for  which  the  work  is 
intended,  where  there  are  practical  facili- 
ties for  doing  the  same,  unless  the  charge 
made  be  greater  than  that  made  to  private 
individuals,  without  making  any  provision 
for  competitive  bidding,  is  not  in  violation 
of  any  public  policy.  Re  Gemmill,  41: 
711,  119  Pac,  298,  20  Idaho,  732. 

(Annotated) 

803.  A  statutory  requirement  that  con- 
tracts for  the  performance  of  municipal 
work  shall  be  let  to  the  lowest  bidder  does 
not  give  such  bidder  a  right  of  action 
against  a  municipality  for  his  lost  profits  in 
case  the  contract  is,  contrary  to  the  statute, 
awarded  to  a  higher  bidder.  Mollov  v.  New 
Rochelle,  30:  126,  92  N.  E.  94,  198  N.  Y. 
402.  (Annotated) 

804.  The  making  of  the  lowest  bid  for  the 
performance  of  municipal  work,  in  response 
to  an  advertisement,  does  not  effect  a  con- 
Digest   1-52  I..R.A.(N.S.) 


tract  with  the  municipality,  a  breach  of 
which  will  give  the  bidder  a  right  of  action, 
although  the  statute  requires  the  contract 
to  be  let  to  the  lowest  bidder,  where  the 
advertisement  reserves  the  right  to  reject 
any  or  all  bids.  Molloy  v.  New  Rochelle, 
30:  126,  92  N.  E.  94,  198  N.  Y.  402. 
Material  or  work  covered  by  patent. 

805.  In  the  absence  of  statute  requiring 
municipalities  to  submit  contracts  for  street 
improvements  to  competitive  bidding,  they 
are  not  precluded  from  contracting  for  pat- 
ented articles  for  such  improvements.  Dil- 
lingham V.  Spartanburg,  8:  412,  56  S.  E. 
381,  75  S.  C.  549. 

806.  The  selection  by  a  municipal  corpo- 
ration of  a  patented  article  for  a  street 
pavement  is  not  prevented  by  a  charter  pro- 
vision requiring  the  contract  to  be  let  to 
the  lowest  bidder,  if  the  owner  of  the  pat- 
ent does  not  himself  bid  for  the  contract, 
but  makes  an  offer  to  furnish  the  machin- 
ery for  mixing  the  paving  material,  or  the 
mixture  itself  for  a  stipulated  price,  on 
equal  terms  to  all  bidders.  Johns  v.  Pen- 
dleton, 46:  990,  133  Pac.  817,  134  Pac.  312, 
66  Or.  182.  (Annotated) 

807.  An  offer  by  the  owner  of  a  patented 
pavement  to  permit  anyone  to  lay  it  for  a 
certain  price  per  yard,  which  is  a  large  per- 
centage of  the  total  cost,  and  for  which  it 
agrees  to  supply  and  prepare  a  large  part  in 
value  of  the  material  to  be  used,  does  not 
comply  with  the  requirements  of  a  statute 
authorizing  a  municipal  corporation  to  use 
a  patented  article  in  street  paving  by  ac- 
quiring a  right  to  operate  under  the  patent 
for  a  royalty,  and  then  let  the  actual  work 
to  the  lowest  bidder.  Allen  v.  Milwaukee, 
5:  680,  106  N.   W.  1099,  128  Wis.   678. 

(Annotated) 


CONTRADICTION. 

In  record  on  appeal,  see  Appeal  aistd  Ebbob, 

III.  e. 
Of  witness,  see  Witnesses,  ill. 


CONTRIBUTION    AND    INDEMNITY. 

Nature  of  action  for,  see  Action  or  Suit,  71. 
Between  stockholders,  see  Action  or  Suit, 

71. 
Prejudicial  error  in  admission   of  evidence 

in  action  for,  see  Appeal  and  Error, 

1137. 
Between  indorsers,  see  Bills  and  Notks,  86. 
Construction  of  indemity  clause  in   paying 

contract,  see  Bonds,  23. 
Providing   for    indemnity    to   defendant    as 

condition   of   right   to   recover   on    lost 

check,  see  Checks,  8,  19. 
Agreement  to  indemnify  against  any  claim 

for  breach  of  contract  as  maintenance, 

see  Champerty  and  Maintenance. 


680 


CONTRIBUTION  AND  INDEMNITY. 


Constittitionality  of  statute  creating  era- 
plovee's  indemnity  fund,  see  Oonstitxj- 
TTONAL  Law,  71,  135,  316-320,  467-469, 
722. 

Duty  of  one  procuring  transfer  of  stock  on 
books  of  corporation  to  indemnify  cor- 
poration for  loss  resulting  f»om  transac- 
tion, see  Contracts,  20. 

Implied  contract  to  indemnify  person  per- 
forming ministft-ial  duty,  for  loss  re- 
sulting therefrom,  see  Contracts,   21. 

Consideration  for  indemnity  contract,  see 
CONTBACTS,  53,  69. 

Validity  of  contract  to  indemnify  surety,  see 
Contracts,  53,  447,  448. 

Validity  of  contract  of  indemnity  by  corpo- 
ration, see  Corporations,  60,  61. 

Liability  of  corporate  officers  circulating 
libel  for  which  corporation  is  held  li- 
able, to  reimburse  corporation,  see  CoB- 
pobations,  164. 

Between  cotenants,  see  Cotettawct,  8-10. 

Between  insurance  companies,  see  Insub- 
ANCE,  VI.  g. 

Between  parties  to  joint  adventure,  see 
Joint  Adventure,  2. 

Conclusivaiess  of  judgment  against  contrac- 
tor for  injury  in  suit  by  him  against 
subcontractor  for  reimbursement,  see 
Judgment,  192. 

Judgment  in  favor  of  directors  in  action  for 
libel  as  bar  to  action  against  them  for 
reimbursement  by  corporation  held 
liable  for  libel,  see  Judgment,  260. 

Between  life  tenant  and  remainderman,  see 
Life  Tenants,  29. 

Limitation  of  action  for,  see  Limitation 
of  Actions,  116,  248. 

Codebtor's  right  to  contribution  on  payment 
of  entire  debt,  see  Limitation  of  Ac- 
tions, 75;  Sltbbogation,  11. 

Surety's  right  to,  see  Limitation  of  Ac- 
tions, 116;  Pbincipai.  and  Subett,  71- 
74;  Subrogation,  29,  30. 

Strict  construction  of  statute  as  to  proceed- 
ing against  wrono-doer  before  suing  city, 
see  Statutes,  272. 

Subrogation  to  cotenant's  right  to  compel, 
see  Subrogation,  2. 

Right  of  one  protecting  agent  against  loss 
resulting  from  mistake  in  telegram  to 
reimbursement  from  telegraph  com- 
pany, see  Telegraphs,  20. 

Between  legatees,  see  Wiixs,  369,  406-414, 
418. 

1.  A  deed  of  trust  binding  land  of  sev- 
eral debtors  for  a  debt  paid  by  one  not 
principal  debtor,  and  released  by  the  credi- 
tor, is  kept  alive  in  equity  to  give  contri- 
bution to  the  debtor  paying  against  a  co- 
debtor,  notwithstanding  such  release,  and 
though  action  at  law  for  contribution  is 
barred  by  the  statute  of  limitations.  Gooch 
V.  Allen.  37:  030,  73  S,  E.  56,  70  W.  Va.  38. 

2.  One  who  succeeds  as  trustee  to  an 
imdivided  portion  of  real  estate  is  not  in- 
dividually liable  to  contribute  to  the  re- 
payment of  taxes  advanced  by  a  stranper 
during  the  incumbency  of  his  predecess^r, 
unless  he  has  ratified  the  contract.  Footc 
Digest  1-52  I<.R.A.(N.S.) 


v.  Getting,  15:  693,  80  N.  E.  600,  195  Mass. 
55. 

3.  Residuary  legatees  who,  after  the 
special  legacies  have  been  substantially  paid, 
submit  to  the  imposition  of  an  illegal  suc- 
cession tax  upon  the  property,  cannot  com- 
pel the  remaining  unpaid  legatees  to  share- 
the  burden  equally  with  them.  Re  Shoen- 
berger,  19:  290,  70  Atl.  579,  221  Pa.  112. 

4.  The  right  of  the  registered  holder 
of  shares  of  stock  in  a  corporation  to  indem- 
nity against  liabilities  incurred  by  him  by 
his  retention  of  the  trust  property  is,  where 
the  beneficial  owner  is  sui  juris,  not  limited 
to  the  property  itself,  but  extends  further 
and  imposes  upon  the  beneficial  owner  a 
personal  obligation  enforceable  in  equity; 
and  it  is  immaterial  whether  the  beneficial 
owner  originally  created  the  trust  by  whidi 
the  registered  holder  was  plainly  affected, 
or  accepted  a  transfer  of  the  beneficial  own- 
ership with  knowledge  of  the  trust.  Har- 
doon  V.  Belilios,  3  B.  R.  C.  355,  [1901]  A. 
C.  118.  Also  Reported  in  70  L.  J.  P.  C. 
N.  S.  9,  49  Week.  Rep.  209,  83  L.  T.  N.  S. 
573,  17  Times  L.  R.  126.  (Annotated) 
Between  tirroiigdoers. 

Effect  of  judgment  in  action  far  injuries  to 
estop  one  primarily  responsible  therefor 
in  subsequent  action  to  hold  him  liable 
as  indemnitor,  see  Estoppel,  43. 

Conclusiveness  of  judgment  against  con- 
structive tort  feasor  in  subsequent  ac- 
tion for  contribution  or  indemnity,  see 
Judgment,  200,  201,  233. 

See  also  Joint  Creditors  and  Debtors,  17 

5.  One  of  two  joint  tort  feasors  whose 
combined  negligence  causes  death,  for  which 
an  action  is  brought  against  both,  cannot 
complain  that  his  codefendant  is  dismissed 
from  the  action,  since  he  is  not  entitled  to 
contribution  from  him.  Doles  v.  Seaboard 
A.  L.  R.  Co.  42:  67,  75  S.  E.  722,  160  N.  C. 
318. 

6.  The  rule  that  the  right  of  contribu- 
tion does  not  exist  as  l)etween  joint  tort 
feasors  has  no  application  to  torts  which 
are  the  result  of  mere  negligence.  Ma3'ber- 
ry  V.  Northern  P.  R.  Co.  12:  675,  110  N.  W. 
356,  100  Minn.  79. 

7.  The  fact  that  joint  wrongdoers  stand 
in  delicto  each  to  the  other  will  not  fore- 
close contribution.  Astoria  v.  Astoria  & 
C.  R.  R.  Co.  49:  404,  136  Pac.  645,  67  Or.  538. 

8.  A  city  whose  negligence  consisted  of 
its  failure  to  provide  barriers  at  the  sides 
of  an  apron  leading  up  to  the  rails  of  a 
railroad  crossing  a  street,  and  in  not  re- 
quiring the  railway  company  to  construct 
and  maintain  aprons  sufficient  to  protect 
the  public  from  harm,  is  not  equally  delin- 
quent   with    the    railway    company,    whose- 

j  duty  it  was,  according  to  the  ordinance 
'  granting  to  it  the  use  of  the  street  in  ques- 
tion, to  lay  its  track  rails  even  with  the 
grade  of  the  street,  and  to  keep  the  street 
I  crossing  in  good  condition  and  repair;  and 
it  may  therefore  recover  from  the  railway 
company  the  amount  of  judgment  obtained 
by  one  who  was  injured  by  falling  from  the 
apron  at  a  point  where  it  covered  only  & 
portion  of  the  street,  leaving  a  perpendicu- 


CONTRIBUTORY  INFRIN<iEMENT— CONVERSION. 


681 


far  descent  of  about  18  inches.  Astoria  v. 
Astoria  &  C.  R.  R.  Co,  49:  404,  136  Pac. 
645,  67  Or.  538. 

9.  The  amount  recoverable  from  a  rail- 
way company  by  a  city  against  whom  a 
judgment  has  been  obtained  for  an  injury 
•caused  by  a  defect  in  a  street  at  a  railway 
crossing,  for  which  the  railway  company 
is  responsible,  includes  necessary  costs  and 
attorneys'  fees  expended  in  defending  the 
action.  Astoria  v.  Astoria  &  C.  R.  R.  Co. 
49:  ^04,  136  Pac.  645,  67  Or.  538. 

10.  A  municipal  corporation  which  fails 
to  require  trapdoors  leading  from  a  side- 
walk to  an  area  way  beneath  it  to  be  main- 
tained in  a  safe  condition  is  not  a  joint  tort 
feasor  with  the  abutting  owner  who  main- 
tains them  for  his  own  benefit  and  permits 
them  to  become  dangerous  to  pedestrians, 
80  as  to  prevent  the  municipality  from  re- 
covering over  against  the  abutting  owner  in 
case  it  is  held  liable  for  an  injury  to  a 
pedestrian.  Seattle  v.  Puget  Sound  Improv. 
Co.  12:  949,  91  Pac.  255,  47  Wash.  22. 

( Annotated ) 

11.  A  municipal  corporation  which  is 
compelled  to  pay  damages  for  the  death  of 
a  traveler  on  its  streets  who  is  thrown  from 
his  wagon  in  front  of  a  street  car  by  a  de- 
fective condition  of  the  street  cannot  compel 
contribution  from  the  street  car  company 
although  the  accident  would  not  have  oc- 
curred if  the  car  had  been  operated  with 
ordinary  care.  Louisville  v.  Louisville  R. 
Co.  49:  350,  160  S.  W.  771,  156  Ky.  141. 

12.  Mere  delay  by  public  authorities  for 
a  period  of  three  years,  to  place  a  barrier 
along  a  bridge  approach  rendered  unsafe 
by  a  change  in  the  grade  by  a  railroad  com- 
pany, is  not  such  delinquency  as  will  pre- 
vent them  from  recovering  over  against  the 
railroad  company  in  case  they  are  held  li- 
able for  injuries  due  to  the  absence  of  the 
railing.  Baltimore  &  0.  R.  Co.  v,  Howard 
County  Comrs.  40:  1172,  73  Atl.  656,  111 
Md.   176. 

13.  A  municipal  corporation  which  is 
compelled  to  pay  damages  for  injuries  to  a 
pedestrian  falling  into  a  ditch  across  the 
sidewalk,  dug  under  direction  of  its  engi- 
neer, by  an  independent  contractor,  in  con- 
nection with  a  street  improvement,  may  se- 
cure indemnity  from  the  contractor  if  the 
accident  was  caused  by  his  negligence  in 
failing  to  provide  a  sufficient  protection  for 
the  ditch  to  render  the  way  safe  for  pe- 
destrians; and  it  is  immaterial  that  the 
engineer  mistakenly  located  the  ditch  at  the 
wrong  place,  which  mistake  required  it  to 
remain  open  overnight.  Robertson  v.  Pa- 
ducah,  40:  1 153,  142  S.  W.  370,  146  Ky. 
188.  (Annotated) 

14.  A  property  owner  who  is  compelled 
to  pay  damages  for  injuries  to  a  pedestrian 
because  of  the  unsafe  manner  in  which  a 
cover  was  placed  upon  a  coal  hole  in  the 
sidewalk,  by  a  coal  dealer  delivering  coal 
through  it,  may,  in  ease  he  himself  was 
not  actively  negligent  in  the  matter,  re- 
cover indemnity  from  the  dealer  for  the  loss 
ao  caused.  Scott  v.  Curtis,  40:  1147,  88  N. 
E.  794,  195  N.  Y.  424.  (Annotated) 
JDigest  1-52  I,.R.A.(N.S.) 


15.  A  property  owner  who  has  confess(;d 
liability  in  an  action  to  hold  him  liable  for 
injury  to  a  pedestrian  falling  through  a 
coal  hole  in  the  sidewalk  cannot  recover 
over  against  the  coal  dealer  who  was  using 
the  hole  for  the  delivery  of  coal,  on  the 
judgment  roll,  without  showing  that  the 
accident  was  due  to  his  negligence.  Scott 
V.  Curtis,  40:  1 147,  88  N.  E.  794,  195  N.  Y. 
424. 

16.  A  plumber  who,  in  repairing  a  city 
water  main,  extended  a  small  pipe  across 
a  street  and  nailed  planks  on  either  side 
as  guards  and  exercised  reasonable  care  to 
keep  the  same  in  safe  condition,  is  not  lia- 
ble to  the  city  as  an  indemnitor, .  for  in- 
juries which  occurred  to  a  pedestrian  by 
reason  of  some  manure  and  loose  planks 
which  had  been  thrown  upon  the  obstruc- 
tion by  a  third  person.  Grand  Forks  v. 
Paulsness,  40:  1158,  123  N.  W.  878,  19  N.  D. 
293. 

17.  A  railroad  company  which  causes  the 
death  of  a  passenger  by  starting  the  train 
before  he  is  safely  on  board  cannot  have 
contribution  from  an  express  company,  al- 
though the  injury  would  not  have  occurred 
but  for  its  negligence  in  leaving  a  truck 
too  close  to  the  track.  Doles  v.  Seaboard 
A.  L.  R.  Co.  42:  67,  75  S.  E.  722,  160  N.  C. 
318. 

♦ «  » 

CONTRIBUTORY  INFRINGEMENT. 

Of  patents,  see  Patents,  3. 


CONTRIBUTORY  NEGLIGENCE. 

See  Negligence,  II. 


CONTROLLER. 


Explosion  of  controller  of  street  car  to  in- 
jury of  motorman,  see  Master  and 
Sebvant,  382,  450. 


♦  »» 


CONVENTIONS. 


Duty   of   carrier   toward   delegates   to   con- 
vention riding  free,  see  Carrieks,  170. 
Of  political  party,  see  Elections,  IV. 


♦  •  » 


CONVERSATION. 


Admission  of  whole  conversation  where  part 
has  been  admitted  in  evidence,  see  Evi- 
dence, 1266. 


•*•*■ 


CONVERSION. 

By  bailee,  see  Bailment,  13. 


682 


CONVEYANCES— COPIES. 


Of  bonds,  by  brokers,  see  Bankbuptct,  23. 

Proof  against  bankrupt  estate  of  olaira  for 
property  converted,  see  Bankruptcy, 
114. 

Criminal  liability  for,  see  Banks,  243-248. 

Prerequisite  to  creditor's  bill  in  case  of,  see 
CaEDiTOR's  Bill,  12. 

Damages  for,  see  Damages,  290,  290a,  303, 
452-458,  716,  717. 

Equitable  conversion,  see  Equitable  Con- 
version. 

Sufficiency  of  evidence  to  establish,  see  Evi- 
dence, 2300. 

By  executor,  see  Executors  and  Adminis- 
trators, 79. 

By  guardian,  see  Guardian  and  Ward,  III. 

Judgment  non  obstante  veredicto,  see  Judg- 
ment, 58. 

Ab  larceny,  see  Larceny. 

Of  lottery  ticket,  see  Lottery,  2. 

By  conditional  vendor,  see  Sale,  242. 

Waiver  of,  see  Trial,  736. 

Action   for,   see   Trover. 


CONVEYANCES. 


In  fraud  of  creditors,  see  Fbaxjdulent  Con- 
veyances. 
In  general,  see  Deeds. 


CONVICTION. 


What  destroys  presumption  of  probable 
cause  for  prosecution  arising  from,  see 
Malicious  Prosecution,  22. 


CONVICTS. 


Effect  of  escape  of,  on  right  to  appeal,  see 

Appeal  and  Error,  93,  402. 
Sufficiency  of  evidence  of  attempt  to  escape, 

see  Evidence,  2423. 
Reward  for  capture  of  escaped  convict;  who 

entitled  to,  see  Reward,  9. 
Assault  by  punishment  of,  see  Assault,  16. 
Right  to  bail,  see  Bail  and  Recognizance, 

9. 
Status  of,  see  Civil  Death. 
Working  of  state  farms  by,  see  Con.stttu- 

TiONAL  Law,  23,  24. 
Deduction  from  sentence  for  good  behavior, 

see  Constitutional  Law,  97;   Crimi- 
nal Law,  261-264. 
Ex  post  facto  laws  as  to,  see  Constitution- 

Ai,  Law,  I.  b,  1. 
Liability  of  county  for  services  of  physician 

to,  see  Contracts,  43. 
Contract  for  hiring  of,  see  Contracts,  383; 

Set-off  and  Counterclaim,  20-22. 
Control  by  courts,  of  state  board's  action  in 

leasing  land  on  which  to  work  convicts, 

see  Courts,  96. 
Trial  for  other  offense  for  one  serving  term 

of  imprisonment,  see  Criminal  Law,  63, 

64. 
Digest  1-52  L.R.A.(N.S.) 


Stay  of  execution  of  death  sentence,  see 
Criminal  Law,  288. 

Senteiico  and  imprisonment  of  generally,  see 
Criminal  Law,  IV. 

Parole  or  pardon  of,  see  Criminal  Law, 
IV.  h. 

Effect  of  deprivation  of  civil  rights  on  valid- 
ity of  deed  executed  by  convict  while 
execution  of  judgment  of  conviction  is 
stayed,  see  Deeds,  21. 

Criminal  liability  of  discharged  convict  for 
registering  as  voter,  see  Elections,  86. 

Evidence  of  declarations  made  by,  see  Evi- 
dence, 1353. 

Habeas  corpus  to  secure  release  of,  see 
Habeas  Corpus. 

Homicide  by  convict  in  resisting  illegal 
corporal  punishment,  see  Homicide,  67; 
Trial,  293. 

Turning  over  pay  of  convict  to  abandoned 
wife,  see  Husband  and  Wife,  213. 

Liability  of  municipality  employing,  for  in- 
jury to,  see  Municipal  Corporations, 
378. 

Right  to  release,  because  of  refusal  to  ac- 
cept tender  of  fine,  see  Tender,  7. 

Effect  of  pardon  of,  on  competency  as  wit- 
ness, see  Witnesses,  18. 

Credibility  of,  as  witnesses,  see  Witnesses, 
158-164. 

Liability   for  injuries   committed   by. 

See  also  Master  and  Servant,  960. 

1.  That  a  tortious  act  of  a  convict  hired 
to  a  private  citizen  is  committed  on  Sun- 
day, when  the  convict  is  allowed  pay  for 
his  labor,  will  not  render  the  employer  Ha- 
Die  therefor  if  the  state  retains  the  right  to 
control  the  acts  of  the  convict.  St.  Louis, 
L  M.  &  S.  R.  Co.  V.  Boyle,  12:  317,  103  S. 
W.  744,  83  Ark.  .302. 

2.  One  hiring  convict  labor  from  the 
state  is  not  liable  for  the  tortious  acts  of 
one  of  the  laborers  where  the  state  retains 
control  of  the  convicts,  the  performance  of 
labor  only  being  directed  by  the  one  doing 
the  hiring.  St.  Louis,  1.  M.  &  S.  R.  Co.  v. 
Boyle,  12:  317,  103  S.  W.  744,  83  Ark.  302. 

(Annotated) 


CO-OPERATIVE  SOCIETY. 

As    constituting    gift    enterprise,    see    LoT- 
TSSIY,  4. 

As  to  communism,  see  Communism. 


CO-OPERATIVE  STORE. 

Rule  of,  against  warranty  of  goods  as  ex- 
cluding implied  warranty,  see  Sales,  78. 


COPIES. 

Admissibility  of,  in  evidence,  see  Evidence, 
715-724",  890. 


COPPERAS:  COPYRIGHT. 


683 


Selling  stove  copied  from  desi^  of  another 
as  unfair  competition,  see  Unfair  Com- 
petition, 2,  3. 

Probate  of  copy  of  will,  see  Wills,  109,  574. 


COPPERAS. 


Emptying  of,  into  stream,  see  Fisheries,  7. 


COPYRIGHT. 


Right  of  author  to  royalties  on  sales  made 
by  publisher's  trustee  in  bankruptcy, 
see  Bankruptcy,  118. 

Unwarranted  use  of  uncopyrighted  manu- 
scripts, see  CoNTKACTS,  13,  14;  Dam- 
ages, 303. 

As  to  property  rights  in  uncopyrighted 
works,  see  Literary  and  Artistic  Prop- 
erty. 

Strict  construction  of  statute  conferring 
copyright,  see  Statutes,  271. 

1.  The  exclusive  right  of  multiplying 
copies  ot  a  work  already  published  can  be 
preserved  only  by  complying  with  the  act 
of  Congress  providing  for  that  purpose.  State 
V.  State  Journal  Co.  9:  174,  106  N.  W.  434, 
76  Neb.  275. 

2.  Under  the  statute  of  8  Anne,  chap. 
19,  there  was  no  subsisting  copyright  in  tlie 
author  of  unpublished  letters,  which  will 
vest  in  his  legal  representatives.  Macmil- 
lan  &  Co.  V.  Dent,  3  B.  R.  C.  647,  [1907  J  1 
Ch.  107.  Also  Reported  in  76  L.  J.  Ch.  N. 
S.  136,  95  L.  T.  N.  S.  730,  23  Times  L.  R. 
45. 

3.  Although  at  common  law  the  writer 
of  a  letter  and  his  legal  representatives  are 
entitled  to  prevent  its  publication,  and  this 
is  a  right  of  property,  the  copyright  in  a 
letter  published  after  the  death  of  the  writer 
is  vested  in  the  proprietor  of  the  letter  it- 
self,— i.  e.,  of  the  paper  and  the  writing 
upon  it.  Maomillan  &  Co.  v.  Dent.  3  B.  R. 
C.  647,  [1907]  1  Ch.  107.  Also  Reported 
in  76  L.  J.  Ch.  N.  S.  136,  95  L.  T.  N.  S. 
730,  23  Times  L.  R.  45. 

4.  Under  the  English  copyright  act  of 
1842,  which  provides  that  "copyright  in 
every  book  which  shall  be  published  after 
the  death  of  the  author  shall  be  the  prop- 
erty of  the  proprietor  of  the  author's  manu- 
script from  which  such  book  shall  first  be 
published,  and  his  assigns,"  the  right  to 
copyright,  where  the  author  is  dead,  is  to 
be  traced,  not  from  the  author,  but  from  the 
first  publisher  of  the  author's  manuscript; 
and  therefore  one  to  wliom  the  proprietor 
of  unpublished  letters  written  by  an  author 
then  deceased  assigned  "all  copyright  which 
we  possess  and  the  exclusive  right  of  pub- 
lishing the  entire  collection  of  letters,"  the 
assignee  undertaking  to  return  all  the  manu- 
scripts when  copied,  is  entitled  to  copyright 
therein  as  against  one  who  subsequently  pur- 
chased the  original  manuscripts  from  the 
assignors  with  any  rights  which  they  might 
Digest   1-52  I<.R.A.(N.S.) 


still  have  therein,  and  who  also  took  from 
the  legal  personal  rcpresentf^tive  of  the  de- 
ceased author  an  assignment  of  the  copy- 
right and  all  other  rights  of  the  author  in 
the  letters.  Macmillan  &  Co.  v.  Dent,  3 
B.  R.  C.  647,  [1907]  1  Ch.  107.  Also  Re- 
ported in  76  L.  J.  Ch.  N.  S.  136,  95  L.  T. 
N.  S.  730,  23  Times  L.  R.  45.     (Annotated) 

5.  A  person  who  makes  notes  of  a 
speech  delivered  in  public,  transcribes  them, 
and  publishes  a  verbatim  report  of  the 
speech,  is  the  "author"  of  the  report  with- 
in the  meaning  of  a  statute  conferring  prop- 
erty in  the  copyright  of  a  book  only  upon 
its  author  and  his  assigns.  Walter  v.  Lane, 
2  B.  R.  C.  312,  [1900]  A.  C.  539.  Also 
Reported  in  69  L.  J.  Ch.  N.  S.  699,  49  Week. 
Rep.  95,  83  L.  T.  N.  S.  289,  16  Times  L.  R. 
551.  (Annotated) 

6.  Semble,  that  one  who  suggested  the 
general  idea  and  dramatic  situations  of  a 
dramatic  sketch  to  one  who  composed  the 
dialogue  in  accordance  with  those  sugges- 
tions is  not,  either  alone  or  jointly  with  the 
composer  of  the  dialogue,  entitled  to  the 
protection  of  the  copyright  acts  as  the  au- 
thor of  the  sketch.  Tate  v.  Fullbrook,  2 
B.  R.  C.  93,  [1908]  1  K.  B.  821.  Also  Re- 
ported in  77  L.  J.  K.  B.  N.  S.  577,  98  L.  T. 
N.  S.  706,  24  Times  L.  R.  347,  52  Sol.  Jo. 
279. 

7.  An  express  agreement  to  that  effect 
is  not  necessary  to  constitute  the  proprietor 
of  an  encyclopedia  the  owner  of  the  copy- 
right in  articles  composed  by  others  for  pub- 
lication therein,  within  §  18  of  the  copy- 
right act,  1842,  which  provides  that  where 
the  proprietor  of  an  encyclopedia  employs 
and  pays  persons  to  compose  articles  for 
publication  therein  on  the  terms  that  the 
copyright  in  the  articles  shall  belong  to  the 
proprietor,  the  copyright  in  the  encyclo- 
pedia and  in  every  article  so  composed  and 
paid  for  shall  be  the  property  of  the  proprie- 
tor, who  shall  enjoy  the  same  rights  as  if 
he  were  the  actual  author  thereof;  but  it  is 
a  question  of  fact  to  be  deprived  from  all  the 
circumstances  of  the  case  what  is  the 
nature  of  the  contract  entered  into  between 
the  parties.  Lawrence  &  Bullen,  Ltd.  v. 
Aflalo,  1  B.  R.  C.  314,  [1904]  A.  C.  17. 
Also  Reported  in  73  L.  J.  Ch.  N.  S.  85,  52 
Week.  Rep.  309,  89  L.  T.  N.  S.  569,  20  Times 
L.  R.  42.  (Annotated) 

8.  The  inference  that  the  copyright  in 
an  article  composed  for  publication  in  an 
encyclopedia  was  intended  to  belong  to  the 
proprietor  may  be  fairly  drawn  where  there 
are  no  special  circumstances,  and  the  only 
material  facts  are  the  employment  to  write 
the  article  and  the  payment  therefor.  Law- 
rence &  Bullen,  Ltd.  v.  Aflalo,  1  B.  R.  C.  314, 
[1904]  A.  C.  17.  Also  Reported  in  73  L. 
J.  Ch.  N.  S.  85,  52  Week.  Rep.  369,  89  L. 
T.  N.  S.  568,  20  Times  L.  R.  42. 

9.  The  acceptance  by  a  publisher  of  a 
story  ottered  for  publication,  and  his  pay- 
ment therefor  in  full,  vests  in  him  the 
rights  of  dramatization,  as  against  the 
claims  of  the  author.  Dam  v.  Kirk  La 
Shelle  Co.  41:  1002,  175  Fed.  902,  99  C.  C. 
A.  392.  (Annotated) 


684 


COPYRIGHT. 


Notice. 

10.  The  provision  in  the  Berne  Conven- 
tion, 1887,  anS  the  orders  in  council  adopt- 
ing the  same,  that  the  enjoyment  of  the 
rights  thereby  given  to  foreign  authors  is  to 
be  subject  to  the  conditions  and  formalities 
prescribed  by  law  in  the  country  of  origin 
of  the  work,  means  that  it  is  to  be  subject 
only  to  those  conditions  and  formalities,  and 
not  to  those  required  by  the  law  of  the 
country  in  which  the  right  is  being  enforced; 
therefore  the  declaration  that  public  per- 
formance of  musical  works  is  forbidden,  re- 
quired by  such  Convention  to  be  made  on 
the  title  page  of  the  work,  is  sufficient  if 
made  in  the  language  of  the  country  of  ori- 
gin. Sarpv  V.  Holland,  1  B.  R.  C.  769, 
[1908]  2  Ch.  198.  Also  reported  in  77  L. 
J.  Ch.  N.  S.  637,  99  L.  T.  N.  S.  317,  24 
Times  L,  R.  600.  (Annotated) 
Publication;   how   right   to    copyright 

lost. 

11.  The  common-law  right  of  an  author 
to  control  his  intellectual  productions  is 
abandoned  where  he  publishes  them  without 
complying  with  the  provisions  of  the  copy- 
right act.  State  v.  State  Journal  Co.  9:174, 
106  N.  W.  434,  75  Neb.  275.  (Annotated) 
"What  covered  by. 

12.  The  copyright  of  a  number  of  a 
magazine  with  a  proper  notice  thereof  on 
the  front  page  will  cover  a  story  published 
therein  which  is  owned  by  the  publisher, 
and  entitle  him  to  the  exclusive  right  of 
translation  and  dramatization.  Dam  v. 
Kirk  La  Shelle  Co.  41:  1002,  175  Fed.  902, 
99  C.  C.  A.  392. 

13.  Direction  as  to  time  and  expression 
placed  upon  sheets  of  music  are  protected  by 
the  copyright  thereon  only  so  long  as  they 
are  used  in  connection  with  the  musical 
score,  and  not  being  in  themselves  a  "sheet 
of  music"  nor  a  "sheet  of  letter  press  sep- 
arately published"  may  be  copied  upon  the 
margin  of  a  perforated  roll  made  for  use 
in  a  mechanical  organ  which  contains  stops, 
swells,  and  pedals  whereby  variation  of  pace 
and  exjlression  may  be  effected  at  the  will  of 
the  performer.  Boosey  v.  Whight.  2  B.  R. 
C.  85,  [1900]  1  Ch.  122.  Also  Reported  in  69 
L.  J.  Ch.  N.  S.  66,  48  Week.  Rep.  228,  81 
L.  T.  N.  S.  571,  16  Times  L.  R.  82. 
EfPect   of. 

14.  Protection  against  multiplication  of 
copies  and  the  incidents  thereof  is  the  only 
protection  afforded  by  the  copyright  law. 
Bobbs-Merrill  Co.  v.  Straus,  15:  766,  147 
Fed.  15.  77  C.  C.  A.  607. 

15.  The  statutory  copyright  does  not 
confer  the  right  to  control  the  price  at 
which  copies  of  a  book  shall  be  sold. 
Bobbs-Merrill  Co.  v.  Straus,  15:  766,  147 
Fed.  15,  77  C.  C.  A.  607.  (Annotated) 

16.  The  owner  of  a  manuscript  surren- 
ders his  common-law  right  of  restricted  pub- 
lication upon  compliance  with  the  require- 
ments for  a  statutory  copyright.  Bobbs- 
Merrill  Co.  V.  Straus,  15:  766,  147  Fed.  15, 
77  C.  C.  A.  607. 

Infringement. 

Measure  of  damages  for,  see  Damages,  605. 
Remedy  for,  see  Electiox  of  Remedies,  8. 
Digest  1-52  I<.R.A.(N.S.) 


Injunction  against,  see  Injunction,  386, 
See  also  supra,  12,  13. 

17.  Tlie  making  or  circulating  of  every 
unauthorized  copy  of  a  picture  for  which 
copyright  has  been  acquired  under  the  Fine 
Arts  Copyright  Act,  1862,  is  a  separate 
offense  in  respect  of  which  a  penalty  is 
incurred  under  §  6  of  the  act.  Hildesheim- 
er  V.  W.  &  F.  Faulkner,  Ltd.  1  B.  R.  C. 
755.  [1901]  2  Ch.  552.  Also  Reported  in 
70  L.  J.  Ch.  N.  S.  300,  49  Week.  Rep.  708, 
85  L.  T.  N.  S.  322,  17  Times  L.  R.  737. 

18.  In  an  action  brought  to  recover  pen- 
alties in  respect  of  a  number  of  offenses 
under  a  statutory  provision  tliat  the  violat- 
or of  a  copyright  for  every  offense  shall 
forfeit  to  the  proprietor  of  the  copyright 
for  the  time  being  a  sum  not  exceeding  £10, 
the  court  is  not  bound  to  award  for  each 
offense  a  penalty  of  at  least  the  sum  repre- 
sented by  the  smallest  coin  in  the  realm, 
but  may  award  for  all  the  offenses  a  lump 
sum  which  if  divided  by  the  number  of  of- 
fenses would  give  for  each  a  very  small 
fraction  of  such  coin.  Hildesheimer  v.  W. 
&  F.  Faulkner,  Ltd.  1  B.  R.  C.  755,  [1901] 
2  Ch.  552.  Also  Reported  in  70  L.  J.  Ch. 
N.  S.  800,  49  Week.  Rep.  708,  85  L.  T.  N. 
S.  322,  17  Times  L.  R.  737.         (Annotated) 

19.  The  performance  of  a  piece  of  music 
by  a  band  of  hired  musicians  in  the  saloon 
lounge  of  a  hotel,  to  which  no  admission  is 
charged,  for  the  purpose  of  attracting  pat- 
ronage, is  not  a  performance  at  a  gratuitous 
public  entertainment  within  a  license  for 
the  performance  of  such  music  at  any  en- 
tertainments which  are  absolutely  free. 
Sarpy  v.  Holland,  1  B.  R.  C.  769,  [1908]  2 
Ch.  198.  Also  Reported  in  77  L.  J.  Ch.  N. 
S.  637,  99  L.  T.  N.  S.  317,  24  Times  L.  R. 
600. 

20.  A  court  of  equity  cannot  compel  the 
owner  of  an  infringed  copyright  to  take 
damages  instead  of  profits,  against  his  will. 
Dam  V.  Kirk  La  Shelle  Co.  41:  1002,  175 
Fed.  902,  99  C.  C.  A.  392. 

21.  The  copyright  of  a  story  is  infringed 
by  expanding  it  into  a  play,  the  theme  of 
each  being  the  same,  although  the  language 
and  names  of  characters  in  the  two  are  dif- 
ferent, and  incidents  are  found  in  the  play 
which  are  not  in  the  story.  Dam  v.  Kirk 
La  Shelle  Co.  41:  1002,  175  Fed.  902,  99  C. 
C.  A.  392. 

22.  A  sale  by  a  dealer  of  a  lawfully 
printed  copy  of  a  copyrighted  volume  at  a 
price  below  that  named  by  the  publisher  is 
not,  in  the  absence  of  any  contract,  condi- 
tion, or  provisions  for  forfeiture,  an  in- 
fringement of  the  copyright  law.  Bobbs- 
Merrill  Co.  V.  Straus,  15:  766,  147  Fed.  15. 
77  C.  C.  A.  607. 

23.  Where  a  dramatic  piece  in  which 
there  is  copyright  is,  as  regards  the  verbal 
composition,  in  substance  entirely  different 
from  another  dramatic  piece  alleged  to  con- 
stitute an  infringement  of  that  copyright, 
the  mere  fact  that  accessorial  matters,  such 
as  scenic  effects,  make-up  of  actors,  or  stage 
"business,"  in  the  latter  piece,  as  performed, 
are  similar  to  those  employed  in  the  per- 
formance of  the  former  will  not  constitute 


CORN— CORPORATIONS. 


685 


an  infringement  of  the  copyright  therein, 
such  matters,  taken  by  themselves,  not  be- 
ing the  subject  of  protection  under  the  acts 
relating  to  dramatic  copyright,  though  in 
cases  where  the  verbal  composition  of  the 
pieces  is  more  or  less  similar  such  matters 
may  be  regarded  as  throwing  light  on  the 
question  whether  there  has  been  an  infringe- 
ment. Tate  V.  Fullbrook,  2  B.  R.  C.  93, 
[1908]  1  K.  B.  821.  Also  Reported  in  77 
L.  J.  K.  B.  N.  S.  577,  98  L.  T.  N.  S.  706, 
24  Times  L.  R.  347,  52  Sol.  Jo.  279. 

(Annotated) 

24.  Sheets  of  perforated  paper  represent- 
ing the  musical  score  of  copyrighted  songs, 
sold  for  use  in  a  mechanical  organ,  are  part 
of  the  mechanism  which  produces  the  mu- 
sic and  not  "copies"  of  sheets  of  music,  with- 
in the  meaning  of  the  copyright  law.  Boo- 
sey  V.  Whight,  2  B.  R.  C.  85,  [1900]  1  Ch. 
122.  Also  Reported  in  69  L.  J.  Ch.  N.  S. 
66,  48  Week.  Rep.  228,  81  L.  T.  N.  S.  571, 
16  Times  L.  R.  82.  (Annotated) 
Expiration. 

Using  name  of  book  after  expiration  of  copy- 
right,  see   Tradename,    19 

25.  Upon  the  expiration  of  the  copyright 
upon  a  name  used  to  designate  a  book,  the 
right  to  the  use  of  the  name  in  connection 
with  such  book  becomes  public  property. 
G.  &  C.  Merriam  Co.  v.  Ogilvie,  i6:  549,  159 
Fed.  638,  88  C.  C.  A.  596.  (Annotated) 


CORN. 

As  perishable  property,  see  Carriers,  832. 
Defects  in  quality  of  corn  sold,  see  Sale, 
134. 


CORNER. 

Conspiracy  to  comer  market,  see  Monopoly 
AND  Combinations,  28,  43,  44,  56. 


CORNER  LOT. 


Mode  of  assessing  for  public  improvement, 
see  Public  Improvements,  69. 


CORONER. 


Bribery  of,  see  Bribery,  4,  5. 
Inquest  of,  as  evidence,  see  Evidence,  758, 
760,  1220,  1221. 


CORPORAL  PUNISHMENT. 

Right   of   teacher   to    inflict   on   pupil,   see 

Schools,  34. 
Digest   1-52  L.R.A.(N.S.) 


CORPORATE    LIMITS. 

Limiting  speed  of  mail  train  within,  as  in- 
terference with  commerce,  see  Com- 
merce, 63. 


CORPORATION  COMMISSION. 

See  Public  Service  Commission. 


CORPORATIONS. 


J.  Nature;      creation;      franchises; 
governmental      regulation, 
1-17. 
a.  In  general,  1—10. 
h.  Corporate  purposes,    11—13. 

c.  De  facto  corporation,  14:,  15. 

d.  Names. 

e.  Governmental        regulation, 

16,  17. 
II.  Consolidation;        reorganization; 
transfer    of    franchises    or    as- 
sets; control  of  other  corpora- 
tion, 18—32. 

III.  Charters;    articles    of   incorpora- 

tion,  33—47. 

IV.  Powers,    liahilities,    and   officers, 

48-200. 

a.  Rights  and  powers  general- 
ly, 48-54. 

ft.  Owning  stock  of  other  com- 
panies, 55. 

c.  Mode    of    corporate    action; 

acts  of  agents,  56—58. 

d.  Contracts ;   ultra  vires,    59— 

109. 
1.  Power  to  contract,   59— 
89. 

5.  Effect     of    ultra     vires; 

right  to  set  up  as  de- 
fense, 90—102. 

8.  Former  requisites. 

4.  Ratification,  103—109. 

e.  Property  rights,    110. 

f.  Liabilities,    111—130. 

g.  Officers;      meetings,       131— 

174. 

1.  In     general;      qualifica- 

tions,  131—133. 

2.  Powers,   134—149. 

3.  Compensation,  150—152. 

4.  Fiduciary  relation,  153— 

158. 

6.  Liabilities,   159—171. 

a.  To    stockholders    or 

creditors, 
159-167. 

(1)  In  general, 

159-166. 

(2)  For  failure  to 

report,    1 67. 

(3)  For    excess    of 

indebtedness. 

b.  For     torts     or     nui- 

sances,      1 68—1 7 1 . 
6.  Meetings,    172—174. 
K.  Promoters,    175—200. 


686 


CORPORATIONS. 


F. 


Capital;  stock  and  stockholders, 

201-384:. 
a.  In   general;   issue   of  stock, 

201,  202. 
h.  Subscriptions,    203—218. 

1.  In  general,  203—209. 

2.  Payment,  210—218. 

o.  Transfers;  lien,   219— 244a. 

1.  In  general,   219—244. 

2.  Prior  right  of  purchase, 

3.  Lien,   24:4a. 

d.  Forged  or  fraudulent  issue, 

245-248. 

e.  Rights       of       shareholders, 

249-299. 

1.  In  general,  249—268. 

2.  Actions  by,  269—284. 

3.  Right   to   inspect    books, 

285-291. 

4.  Dividends;         earnings, 

292-299. 

f.  liiability      of      shareholders, 

300-369. 

1.  In  general,   300—336. 

2.  Effect  of  transfer,  337— 

344. 

3.  For  unpaid  stock,  345— 

355. 
a.  In      general,      345— 

353. 
h.  Stock     paid    for    in 

property,     354, 

355. 

4.  Proceedings   to   enforce, 

356—369. 

g.  Stockholders'  meetings;  vot- 

ing, 370—384. 

1.  In  general,  370—376. 

2.  Voting,   377-384. 

a.  In     general,      377— 

382. 

b.  Who  entitled  to  vote, 

383,   384. 
Dissolution ;      forfeiture ;     insol- 
vency, 385—410. 
a.  In  general,  385,  386. 
t.  Grounds  of  forfeiture,   387, 

388. 
e.  Effect    on    property    rights, 
389,  390. 

d.  Effect   on   causes   of  action, 

391-393. 

e.  Procedure;  power  of  equity 

as  to,  394—398. 
/.  Insolvency ;  right  and  pref- 
erences    of     creditors, 
399-410. 

1.  In  general,  399—402. 

2.  Preferences,    403— 4 lO. 
Foreign  corporations,   411—452. 

a.  In  general,  411—413. 

It.  Doing  business  within  state, 

414-442. 
e.  Actions  by  or  against,  443— 

452. 
d.  Winding  up;  insolvency. 


Acknowledgment  of  bill  of  sale  by,  before 
stockholder,  see  Acknowledgment,  2; 
Attachment,  21,  22. 

Digest  1-52  i:<.R.A.(N.S.) 


VI. 


^Rfit 


Til. 


Acknowledgment  of  mortgage  executed  by, 
before  notary  interested  in  corporation, 
see  Acknowlk1)GMExt,  3. 

Compelling  production  of  books  and  papers, 
see  Appeal  and  Error,  23,  103;  Con- 
stitutional Law,  364;  Criminal  Law, 
110-112;  Discovery  and  Inspection, 
20,  22,  25-27. 

Objecting  for  first  time  on  appeal  that  cor- 
poration is  sued  by  a  wrong  name,  see 
Appeal  and  Error,  757. 

Right  of  assignor  for  creditors  to  complain 
of  sale  of  property  to  corporation  in  ex- 
change for  stock,  see  Assignment  fob 
Creditors,  7,  8. 

Who  is  agent  of,  entitled  to  execute  affida- 
vit for  attaclmient,  see  Attachment, 
26,  27. 

Limiting  to  corporations  transaction  of 
banking  business,  see  Banks,  4,  5 ;  Con- 
stitutional Law,  435. 

Transfer  of  funds  of,  by  officer  who  is  also 
cashier  of  bank,  to  conceal  misappropri- 
ations from  bank,  see  Banks,  43. 

What  is  a  "manufacturing  corporation,"  en- 
titled to  discharge  in  bankruptcy,  see 
Bankruptcy,  8. 

Malicious  attachment  of  corporate  property, 
see  Bankruptcy,  96. 

Accommodation  notes,  see  Bills  and  Notes, 
72,  73. 

Who  may  indorse  note  payable  to  the  order 
of  the  directors  of  a  corporation,  see 
Bills  and  Notes,  11. 

Bonds  of,  see  Bonds,  III.  a. 

Right  of  action  against  stockholders  for  in- 
ducing suicide  of  officer  of  corporation, 
see  Case,  3. 

Inquiring  into  existence  of,  on  certiorari  to 
review  condemnation  proceedings  by, 
see  Certiorari,  19. 

Membership  in  chamber  of  commerce,  see 
Chamber  of  Commerce,  1,  3. 

Devise  of  property  to,  in  excess  of  its  char- 
ter authority  to  take,  see  Charities,  39. 

Riglit  of  mortgagee  of  shares  in,  see  Chat- 
tel Mortgage,  64. 

Interstate  business  of,  see  Commerce. 

Conflict  of  laws  as  to  corporate  matters,  see 
Conflict  of  Laws,  I.  d. 

Self-executing  provision  as  to,  see  Consti- 
tutional Law,  31. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  II.  a,  3. 

Right  to  claim  protection  of  due  process  of 
law  clause,  see  Constitutional  Law, 
371. 

Due  process  in  service  of  process  on,  see  Con- 
stitutional Law,  540-543. 

Class  legislation  as  to  employ«es  of,  see 
Constitutional  Law,  II.  a,  5,  c. 

Regulating  time  of  payment  of  corporate  em- 
•  ployees,  see  Constitutional  Law,  486- 
490;   Master  and  Servant,  76. 

As  to  freedom  of  contract  with  employees, 
see  Constitittional  Law,  II.  b,  4,  b,  (2) . 

Police  regulation  of  matters  pertaining  to 
employees,  see  Constitutional  Law,  II. 
c,  4,  c. 

Impairment  of  obligation  as  to,  see  CoxsTl- 
TxrriONAL  Law,  II.  g,  1,  a,  2. 


CORPORATIONS. 


687 


Contract  by  brewing  company  to  indemni- 
fy surety  on  bond  of  one  retailing  its 
product,  see  Contracts,  447. 

Agreement  between  stockholder  and  credi- 
tors that  he  shall  bid  in  property  at 
judicial  sale  and  pay  corporate  debts, 
see  COxN  TRACTS,  482. 

Jurisdiction  of,  generally,  see  Courts,  I. 
b,  4;   I.  d;  III. 

Attacliment  or  judgment  lien  as  prerequisite 
to  creditor's  bill,  see  Creditor's  Bill,  7. 

Damages  for  injuries  from  blasting  by,  see 
Damages,  67. 

Damages  for  termination  of  agency  contract 
beyond  period  for  which  corporation 
was  organized,  see  Damages,  202. 

Dedication  of  property  to  public  use  by,  see 
Dedication,  2. 

Reports  to,  by  agent  as  confidential  commu- 
nication, see  Discovery  and  Inspec- 
tion, 14,  15. 

Equitable  jurisdiction  over  corporate  mat- 
ters, see  Equity,  8,  45,  46. 

Estoppel  of  generally,  see  Estoppel,  81, 
123,  203. 

Estoppel  as  to  corporate  existence,  see  Es- 
toppel, III.  c. 

Wrongful  use  by  broker  of  certificate  of  in- 
debtedness of  corporation  placed  in  his 
hands  by  principal,  see  Estoppel,  86. 

Presumption  from  presence  of  corporate  seal 
on  contract,  see  Evidence,  539. 

Libel  of,  see  Evidence,  254. 

Evidence  of  method  of-  transacting  business 
in  name  of,  see  Evidence,  166]. 

Evidence  as  to  discrimination  against  cor- 
poration on  taxation,  see  Evidence, 
1684. 

Evidence  to  show  that  deposit  was  property 
of  bankrupt  corporation,  see  Evidence, 
.2092. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  II.  f. 

Records  and  papers  of,  as  evidence,  see  Evi- 
dence, IV.  1. 

Fraudulent  scheme  of,  see  Fraud  and  De- 
ceit, 6. 

False  reports  by,  to  mercantile  agency,  see 
Fraud  and  Deceit,  62,  63. 

Conveyance  of  assets  of  insolvent  partner- 
ship to  corporation  organized  to  carry 
on  business,  see  Fraudulent  Convey- 
ances, 7,  25. 

Where  debt  due  from  one  to  another  may 
be  garnished,  see  Garnishment,  36. 

Injunction  as  to  corporate  matters,  see  In- 
junction, I.  g. 

Insurance  against  liability  for  injuries,  see 
Insurance,  638. 

Deed  to  corporation  before  receiving  char- 
ter as  defense  to  action  on  insurance 
policy,  see  Insurance,  857. 

Description  of  copartnership  as  corporation 
in  action,  see  Judgment,  22. 

SufTiciency  of  service  on,  to  sustain  decree 
pro  confesso  against,  see  Judgment,  12. 

Conclusiveness  of  judgment  as  to  corporate 
matters,  see  Judgment,  II.  d,  8. 

Competency  of  jurors  in  action  against,  see 
Jury,  "67-70. 

Digest  1-52  I<.R.A.(N.S.) 


Holder  of  stock  in  corporation  employing 
labor  as  an  employer,  see  Labor  Or- 
ganizations,  5. 

Contribution  of  corporate  funds  to  political 
campaign  fund  as  larceny,  see  Larceny, 
10. 

Levy  on  chose  in  action  of,  see  Legislature, 
7 ;  Levy  and  Seizure,  5. 

Including  railroad  property  in  levee  district 
as  violation  of  charter  rights,  see  Lev- 
ees. 

Seizing  property  of  individual  in  execution 
on  judgment  against  corporation,  see 
Levy  and  Seizure,  30,  33. 

Imposition  of  license  tax  on,  see  License, 
16-20,  45,'112,  113,  117,  132. 

Limitation  of  actions  against,  see  Limita- 
tion OF  Actions,  II.  c. 

Mandamus  to,  see  Mandamus,  I.  e. 

Statute  making  corporations  liable  for  in- 
juries to  employees,  see  Master  and 
Servant,  137. 

Rights  and  liabilities  as  to  employees  gen- 
erally, see  Master  and  Servant. 

Municipal  corporations,  see  Municipal  Cor- 
porations. 

Notice  to  bank  of  misappropriation  of  funds 
of  other  corporation  by  cashier,  see 
Notice,  18. 

Injunction  by  corporation  holding  franchise 
to  use  streets  against  rival  company, 
see  Nuisances,  100. 

As  parties  in  action,  see  Parties,  II.  a,  5. 

Formation  of  corporation  to  continue  busi- 
ness as  dissolution  of  partnership,  see 
Partnership,  71. 

Duty  of  corporation  succeeding  partnership 
and  securing  novation  as  to  order  for 
goods,  as  to  application  of  payments, 
see  Payment,  28. 

Allegations  as  to,  see  Pleading,  II.  a. 

Proof  that  broker  is  acting  as  owner's  agent 
in  sale  of  property  to,  see  Principal 
AND  Agent,  2. 

Power  of  agent  of,  to  receive  property  in 
satisfaction  of  notes,  see  Principal  and 
Agent,  54, 

Extension  of  time  for  payment  of  corporate 
note  as  discharging  sureties,  see  Prin- 
cipal and  Surety,  52. 

Corporation  as  "resident"  within  public  im- 
provements statutes,  see  Public  Im- 
provements, 9. 

Public  service  corporations,  see  Public  Serv- 
ice Corporations. 

As  to  Public  Service  Commission,  see  Pub- 
lic Service  Commission. 

Receivers  for,  see  Receivers. 

Removal  of  causes  by,  see  Removal  of  Caus- 
es, 15. 

Owned  by  state,  see  State  Institutions; 
State  Universities. 

Power  of  state  or  territory  to  tax  Federal 
corporation,  see  Taxes,  I.  b. 

Liability  to  taxation,  see  Taxes,  I.  e,  2. 

Exemption  of,  from  taxation,  see  Taxes,  I. 
f,  2;  L  f,  3. 

Place  where  taxable,  see  Taxe:s,  II. 

Assessment  and  enforcement  of  tax,  see 
Taxes,  III. 


688 


CORPORATIONS,  I.  a. 


Discrimination    against,    in    taxation,    see 

Taxes,  21,  22. 
As  trustee,  see  Trusts.. 
Deed    by    corporation    exercising    corporate 

powers  without  authority,  see  Vendor 

AND  PUHCHASER,   308. 

Venue  of  action  against,  see  Venue,  11-16. 

Right  to  transport  water  without  the  state 
for  sale,  see  Waters,  44. 

Describing  copartnership  in  summons  as  a 
corporation,  see  Writ  and  Process,  11. 

Service  on,  see  Writ  and  Process,  II.  b. 

Various  particular  associations  or  corpora- 
tions, see  Associations;  Banks;  Be- 
ne[volent  Societies;  Building  and 
Loan  Associations  ;  Charities  ;  Coun- 
ties; Gas;  Insurance;  Joint  Stock 
Company  ;  Municipal  Corporations  ; 
Railroads  ;  Religious  Societies  ; 
Street  Railways  ;  Telegraphs  ;  Tele- 
phones; Toixs  AND  Toll  Roads;  Wa- 
ters, III. 

T,  Nature;    creation;    franchises;    gov- 
ernmental regulation. 

a.  In  general. 

(See   also   same   heading   in  Digest  L.R.A. 

Effect  of  organization  of,  to  terminate  con- 
tract by  strangers  not  to  compete  in 
business  with  the  organizers,  see  Con- 
tracts, 721. 

Attacking  existence  of  corporation  seeking 
to  condemn  property,  see  Eminent  Do- 
main, 138-140. 

Presumption  from  withholding  evidence  as 
to  franchise,  see  EviDEa<rcE,  311,  312. 

Presumption  that  corporation  will  renew 
franchise,  see  Evidence,  313. 

Franchise  of  gas  company,  see  Gas,  3-9,  11. 

Franchise  of  railroad  company,  see  Rail- 
roads, I. 

Creation  of  state  hospitals  by  special  act, 
see  Statutes,  154. 

Taxation  of  franchise,  see  Taxi:s,  21,  74, 
78,  123,  186. 

Franchise  of  telegraph  company,  see  Tele- 
graphs, I. 

Franchise  of  telephone  company,  see  Tele- 
phones. 
■Franchise  of  water  company,  see  Waters, 
III. 

1.  A  quasi  public  corporation  is  one  af- 
fected with  a  public  interest.  State  ex 
rel.  McCarter  v.  Firemen's  Ins.  Co.  (N.  J. 
Err.  &  App.)  29:  1194,  73  Atl.  80,  414,  74 
N,  J.  Eq.  372. 

2.  While  the  name  of  a  corporation 
may  be  considered  as  throwing  light  on  its 
real  character,  yet  the  mere  fact  that  an 
incorporated  company  is  designated  as  a  ter- 
minal company  will  not  change  its  charac- 
ter, if  it  is  a  railroad  companv  within  the 
meaning  of  the  law.  Bridwell  v.  Gate  City 
Terminal  Co.  .10:  909,  56  S.  E.  624,  127  Ga. 
520. 

3.  To  legally  possess  or  exercise  powers 
or  privileges  of  cor^jorations  requires  a  sov- 
Digest  1-52  I<.R.A.(N.S.) 


ereign  grant.     Spotswood  v.  Morris,  6:  665, 
85  Pac.   1094,    12   Idaho,  360. 

4.  A  corporation  having  stockholders  ifr 
organized  when   the   first  meeting  has  been 

I  called,  the  act  of  incorporation  accepted,  of- 
ficers elected,  and  by-laws  providing  for  fu- 
ture meetings  adopted,  witliin  the  meaning 
of  a  statute  providing  tliat  incorporators 
and  subscribers  shall  hold  the  franchise  "un- 
til the  corporation  is  organized."  Roosevelt 
V.  Hamblin,  18:  748,  85  N.  E.  98,  199  Mass. 
127.  (Annotated) 

5.  An  action  in  which  a  usurpation  of 
corporate  franchises  by  persons  not  consti- 
tuted a  corporate  body  because  not  organ- 
ized in  accordance  with  the  statutes  of  the 
state  is  charged  should  be  brought  against 
the  individuals  alleged  to  be  usurping  cor- 
porate rights,  and  not  against  the  pretended 
corporation.  State  ex  rel.  Caldwell  v.  Lin- 
coln Street  Railway,  14:  336,  114  N.  W.  422, 
80  Neb.  333. 

6.  That  a  majority  of  the  stock  of  a 
natural  gas  company  is  owned  by  a  corpo- 
ration engaged  in  the  business  of  manu- 
facturing and  selling  gas  in  a  particular 
city,  to  which  the  natural  gas  is  to  be 
piped,  does  not  destroy  the  corporate  rights 
of  the  natural  gas  company.  Calor  Oil  & 
Gas  Co.  V.  Franzell,  36:  456,  108  S.  W. 
328,  128  Ky.  715. 

'Who  may  question  legality  of  organ-> 
ization. 

7.  A  creditor  of  a  corporation  which  has 
for  some  time  been  acting  in  pursuance  of 
articles  regularly  filed,  having  directors  and 
officers  and  exercising  the  functions  of  a 
corporation,  cannot  question  the  legality  of 
its  organization.  Marsters  v.  Umpqua  Val- 
ley Oil  Co.  12:  825,  90  Pac.  151,  49  Or.  374. 

8.  An  action  to  protect  corporate  prop- 
erty from  wrongful  acts  is  within  the  opera- 
tion of  a  statute  preventing  one  sued  for 
injury  to  the  property  of  a  corporation  from 
setting  up  want  of  legal  organization  as  a 
defense.  State  Security  Bank  v.  Hoskins, 
8:  376,  106  N.  W.  764,  130  Iowa,  339. 
Incorporation  in  more  than  one  state. 

9.  A  state  which  has  co-operated  in  the 
consolidation  into  one  corporation  of  sever- 
al railroads  incorporated  in  different  states 
may  enforce  its  agreement  to  guarantee  an 
undertaking  of  one  of  the  constituent  cor- 
porations, which  was  incurred  and  to  be 
performed  within  its  limits,  and  is  valid  by 
its  laws,  although  it  would  be  invalid  by 
the  laws  of  another  of  the  states  which 
joined  in  the  unification  of  the  corporation. 
Mackay  v.  New  York,  N.  H.  &  H.  R.  Co. 
24:  768,  72  Atl.  583,  82  Conn.  73. 

10.  A  corporation  formed  by  consolida- 
tion, under  the  statutes  of  several  states,^ 
of  several  corporations  which  had  secured 
charters  from  such  states,  cannot  avoid 
performance  in  one  state  of  an  obligation 
undertaken  there,  and  which  is  valid  by  its 
laws,  because  it  has  been  enjoined  from 
performing  it  by  the  courts  of  one  of  the 
other  states  which  joined  in  its  formation,, 
under  the  laws  of  which  it  would  be  invalid. 
Mackay  v.  Now  York,  N.  H.  &  H.  R.  Co. 
24:  768,  72  Atl.  583,  82  Conn.  73. 


CORPORATIONS,  I.  b— II. 


689 


b.  Corporate  purposes. 

(See   also   same   heading    in   Digest   L.R.A. 

1-70.) 

Eight  of  corporation  to  practise  law,  see 
ArroBNEY  General,  8. 

11.  The  language  of  Can.  Gen.  Stat.  1901, 
§  1249,  23d  clause,  authorizing  the  forma- 
tion of  corporations  for  "the  manufacture 
and  supply  of  gas,  or  the  supply  of  light  or 
heat  to  the  public  by  any  other  means," 
is  broad  enough  to  authorize  the  creation 
of  corporations  for  the  purpose  of  supply- 
ing natural  gas  to  the  public.  Compton  v. 
People's  Gas  Co.  lo:  787,  89  Pac.  1039,  75 
Kan.  572. 

12.  The  right  to  incorporate  companies 
for  the  purpose  of  diverting  water  from 
streams,  and  storing  and  selling  the  water 
thus  diverted,  contained  in  prior  statutes. 
was  omitted  from  the  N^w  Jersey  general 
corporation  act  of  1896  (P.  L.  1896,  p.  277, 
§  6;  P.  L.  1899,  p.  473),  which  does  not 
authorize  the  organization  of  companies  for 
that  purpose.  McCarter  ex  rel.  Kummel  v. 
Hudson  County  Water  Co.  14:  197,  65  Atl. 
489,  70  N.  .J.  Eq.  695. 

13.  A  corporation  for  the  practice  of  law 
is  not  authorized  by  a  statute  permitting 
the  organization  of  a  corporation  for  any 
lawful  business,  since  the  practice  of  the 
law  is  not  a  lawful  business  except  for 
members  of  the  bar,  who  have  complied  with 
all  the  conditions  required  by  statute  and 
the  rules  of  the  courts;  and  a  corporation 
cannot  perform  the  conditions.  Re  Co-opera- 
tive Law  Co.  32:  55,  92  N.  E.  15,  198  N.  Y. 
479.  (Annotated) 

c.  De   facto   corporation. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Liability  of  stockholders  in  de  facto  corpo- 
rations, see  infra,  317-323. 

Right  of  de  facto  corporation  to  exercise 
power  of  eminent  domain,  see  Eminent 
Domain,  6,  7,  140. 

14.  An  unconstitutional  act  of  the  legis- 
lature is  not  a  sufficient  basis  for  a  corpora- 
tion de  facto,  which  can  exist  only  in  case 
of  a  law  under  which  it  might  have  been 
created  de  jure.  Huber  v.  Martin,  3:  653, 
105  N.  W.  1031,  127  Wis.  412. 

15.  Parties  who  associate  themselves  to- 
gether for  the  purpose  of  forming  a  cor- 
poration do  not  become  a  corporation  de 
jure,  where  they  fail  to  file  their  articles 
of  incorporation  in  all  the  places  required 
by  the  enabling  statute.  Harrill  v.  Davis, 
22:  1153,   168  Fed.   187,   94  C.   C.  A.  47. 

d.  Names. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Right  to  exclusive  use  of  name,  see  Trade- 

MAKKS,  2;  Tradename,  15,  16. 
Digest  1-52  KR.A.(N.S.) 


Injunction  against  use  of  trade  name  by 
other  concern,  see  Injunction,  392,  393. 

e.  Governmental  regulation. 

Regulation  of  banking  business,  see  Banks, 
I. 

Governmental  control  of  carriers,  see  Cab- 
biers,  IV. 

Police  power  as  to,  see  Constitutional 
Law,  664. 

Power  of  municipality  over  natural  gas 
company,  see  Gas. 

Power  of  Public  Service  Commission  as  to, 
see  Public  Service  Commission. 

16.  Neither  a  corporation,  nor  its  stock- 
holders, which  is  formed  by  the  consolida- 
tion with  their  consent,  under  authority 
of  the  legislatures  of  several  states,  of  sev- 
eral corporations  which  had  been  chartered 
by  and  were  doing  business  in  them,  can 
complain  that  each  state  regulates  its  con- 
duct so  far  as  concerns  franchises  which  it 
has  granted.  Mackay  v.  New  York.  N.  H. 
&  H.  R.  Co.  24:  768,  72  Atl.  583,  82  Conn. 
73.  (Annotated) 

17.  A  general  agent  of  an  insurance  com- 
pany taking  charge  of  its  business  in  an- 
other state  does  not  become  such  a  factor  in 
its  domestic  affairs,  mechanism,  internal  or- 
ganization or  policy,  that  his  contract  for 
compensation  is  subject  to  reduction  by  the 
legislature  under  its  reserve  power  over  cor- 
porations. Boswell  v.  Security  Mut.  L.  Ins. 
Co.  19:  946,  86  N.  E.  532,  193  N.  Y.  465. 

II.  Consolidation  reorganization  ; 
transfer  of  franchises  or  assets;, 
control   of   other   corporation. 

(See  also  same  heading  in  Digest  L.R.A. 
1-79.) 

Statute  authorizing  majority  stockholders 
to  consolidate  with  other  corporation 
and  to  condemn  interest  of  nonconsent- 
ing  stockholders,  see  Constitutional 
Law,  788. 

Estoppel  to  attack  cc«solidation,  see  Es- 
toppel, 150. 

Action  for  deceit  in  inducing  consolidation, 
see  Fbaud  and  Deceit,  4. 

Consolidation  of  railroad  companies,  see 
Railroads,  4,  14-16. 

See  also  supra,  9,  10,  16;   infra,  85. 

18.  An  apparent  merger  of  two  corpo-  , 
rations  by  retention  of  the  name  of  one  and 
abandonment  of  that  of  the  other,  and  in- 
crease of  the  capital  stock  of  the  former  to 
take  up  the  stock  of  tlie  other,  under  a 
statute  providing  only  for  consolidation  of 
corporations,  does  not  prevent  the  opera- 
tion of  the  rule  that  consolidation  works  a 
termination  of  the  constituent  parts  and 
creates  a  new  corporation  in  place  of  them, 
and  therefore  the  new  concern  is  liable  for 
the  tax  imposed  for  the  organization  of 
corporations.  Cbicago  Title  &  T.  Co.  v. 
Doyle,  47:  1066,  102  N.  E.  790,  259  111.  489. 

(Annotated)  ■ 
44 


690 


CORPORATIONS,  II, 


19.  A  railroad  company  which  controls 
another  merely  by  owning  a  majority  of 
its  stock,  and  which  has  assembled  it  with 
others  into  a  system  known  by  its  name, 
does  not  become  liable  for  the  contracts 
of  the  controlled  road,  if  it  in  fact  main- 
tains a  legally  distinct  and  separate  organ- 
ization. Stone  V,  Cleveland,  C,  C.  &  St. 
L,  R,  Co.  35:  770,  95  N.  E.  816,  202  N.  Y. 
352.  (Annotated) 
Reorganization. 

See  also  infra,  252,  257. 

20.  In  case  of  success,  in  form,  of  an 
attempt  to  reorganize  a  mutual  insurance 
company  on  the  stock  plan,  under  a  law, 
in  terms,  authorizing  it,  and  the  insurance 
business  formerly  carried  on  by  the  old 
company  being  continued  ostensibly  by  the 
n£w  creation,  using  the  former's  assets  and 
good  will,  if  the  attempt  is  fruitless  be- 
cause of  the  enabling  act  being  void,  such 
continued  business  is  to  be  regarded  as 
really  that  of  the  old  corporation.  Huber  v. 
Martin,  3:  653,  105  N.  W.  1031,  127  Wis. 
412. 

Liability  after  consolidation  or  trans- 
fer  of  franchises   or   assets. 

Construction  of  agreement  by  transferee  to 
assume  debts,  see  Conteacts,  371,  372. 

Equitable  jurisdiction  of  suit  by  corporate 
creditor  to  reach  claim  assigned  to  an- 
other corporation,  see  Equity,  28, 

Liability  of  consolidated  insurance  com- 
panies, see  Insurance,  12. 

Amendment  of  pleading  in  action  against 
consolidated  company,  see  Pleading, 
101, 

21.  A  corporation  formed  by  consolida- 
tion of  others  may  assert  the  rights,  equities 
and  defenses  of  one  of  the  constituent  com- 
panies when  sued  on  a  liability  existing 
against  it  prior  to  the  consolidation.  South- 
ern Steel  Co.  V.  Hopkins,  20:  848,  47  So.  274, 
157  Ala,  175, 

22.  A  corporation  which  absorbs  a  bank 
for  the  purpose  of  continuing  the  business 
in  its  own  name  takes  the  assets  cum  onere 
with  notice  of  the  liability  of  the  assets  for 
the  debts  of  the  bank.  Williams  v.  Com- 
mercial Xat.  Bank,  11:857,  90  Pac,  1012, 
49  Or.  492, 

23.  A  corporation  resulting  from  the 
consolidation  of  two  corporations,  one  of 
which  went  entirely  out  of  existence  with- 
out making  any  arrangement  respecting  its 
liabilities,  will,  as  a  general  rule,  he  en- 
titled to  all  of  the  property  and  answerable 
for  all  of  the  liabilities  of  the  corporation 
thus  absorbed.  Atlantic  &  B.  R.  Co.  v. 
Johnson,  11:  1119,  56  S.  E,  482,  127  Ga.  392. 

(Annotated) 

24.  A  corporation  which  purchases  all 
the  assets  of  another  with  its  own  stock 
and  bonds,  which  it  permits  to  be  dis- 
tributed among  the  stockholders  without 
any  provision  for  payment  of  the  debts  of 
the  latter  company  of  which  it  has  knowl- 
edge, actual  or  constructive,  is  liable  for 
their  satisfaction  out  of  the  property  re- 
ceived by  it.  Jennings,  NefiF,  &  Co.  v. 
Crystal  Ice  Co.  47:  1058,  159  S.  W.  1088,  128 
Tenn.  231.  (Annotated) 

Digest  1-52  I,.R.A.(N.S.) 


25.  Ci-editors  of  an  insolvent  corporation 
which  has  transferred  its  assets  to  a  new 
corporation,  not  its  mere  successor,  without 
consideration  other  than  the  issuance  of 
stock,  cannot  maintain  an  action  at  law 
against  the  latter;  but  their  remedy  is  in 
equity,  where  an  accounting  should  be  had. 
Sharpies  Co.  v.  Harding  Creamery  Co. 
II :  863,  111  N.  W,  783,  78  Neb,  795. 

(Annotated) 

26.  A  new  corporation  to  which  the  as- 
sets of  an  insolvent  corporation  are  trans- 
ferred in  fraud  of  creditors,  without  con- 
sideration other  than  the  issuance  of  stock 
to  the  stockholders  of  the  insolvent  com- 
pany, is  liable  to  the  creditors  of  the  latter, 
only  to  the  extent  of  the  value  of  the  prop- 
erty received,  where  it  is  not  a  mere  con- 
tinuance of  the  insolvent  company.  Sharp- 
ies Co,  V.  Harding  Creamery  Co.  11:  863,  111 
X.  W.  783,  78  Neb.  795. 

27.  Where  one  corporation  becomes  prac- 
tically extinct,  transferring  all  its  assets 
to  another,  and  receiving  in  return  stock 
in  the  other  corporation,  which  succeeds 
to  its  business,  the  new  corporation  is  lia- 
ble, to  the  extent  of  the  value  of  the  prop- 
erty acquired,  for  the  debts  of  the  old  one 
which  accrued  both  before  and  after  the 
taking  of  such  assets.  Altoona  v.  Rich- 
ardson Gas  &  Oil  Co.  26:  651,  106  Pac.  1025, 
81  Kan.   717, 

28.  A  creditor  of  a  corporation  which 
has  conveyed  all  its  property  to  another 
corporation,  in  consideration  of  tlie  as- 
sumption by  the  latter  of  all  the  debts  of 
the  former  corporation,  may  charge  the 
property  in  the  hands  of  the  grantee  cor- 
poration with  his  debt,  and  subject  the  same 
to  payment  thereof.  Billmyer  Lumber  Co. 
V.  Merchants'  Coal  Co,  26:  iioi,  66  S.  E, 
1073,  66  W.  Va.  696, 

29.  The  assumption  by  one  corporation 
of  all  the  indebtedness  of  another  corj>ora- 
tion  of  whatsoever  kind,  as  the  considera- 
tion for  the  conveyance  of  all  the  property 
of  such  other,  includes  a  demand  against 
the  latter  for  unliquidated  damages  for  the 
breach  of  a  valid  contract.  Billmyer  Lum- 
ber Co.  v.  Merchants'  Coal  Co,  26:  iioi, 
66  S,  E,  1073,  66  W,  Va,  696.     (Annotated) 

30.  A  creditor  of  a  corporation  which 
transfers  all  of  its  assets  to  another  cor- 
poration, in  consideration  for  stock  issued 
to  its  president  individually,  is  not  bound 
to  pursue  the  stock  in  the  hands  of  the 
president,  rather  than  the  assets  in  the 
hands  of  the  purchaser.  Luedecke  v,  Des 
Moines  Cabinet  Co.  32:  616,  118  N,  W,  456, 
140  Iowa,  223, 

31.  A  corporation  which  purchases  the 
entire  assets  of  another  corporation,  and 
issues  therefor  its  own  stock  to  the  presi- 
dent of  the  latter  individually,  thereby  en- 
abling him  to  use  it  for  his  private  ends, 
is  not  a  bona  fide  purchaser  so  as  to  be 
able  to  protect  the  assets  from  the  claims 
of  creditors  of  the  selling  corporation,  which 
were  in  suit  when  the  transfer  was  made. 
Luedecke  v.  Des  Moines  Cabinet  Co.  32:  616, 
118  N.  W.  456,  140  Iowa,  223. 

32.  To  entitle  the  creditor  of  a  corpora- 


CORPORATIONS,  III. 


691 


tion  to  a  personal  judgment  against  an- 
other corporation  which  purcliases  all  the 
assets  of  the  former,  it  must  have  agreed  to 
assume  the  seller's  debts,  there  must  have 
been  a  consolidation  of  the  two  corpora- 
tions, the  purchasing  company  must  have 
been  a  mere  continuation  of  the  seller,  or 
the  transaction  must  have  been  fraudulent 
in  fact.  Luedecke  v.  Des  Moines  Cabinet 
Co.  32:  616,  118  N.  W.  456,  140  Iowa,  223. 

(Annotated) 

///.  Charters;  articles  of  incorporation. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Impairment  of  obligations  as  to,  see  Consti- 
tutional Law,  II.  g,  1,  a,  2. 

Admissibility  in  evidence,  see  Evidence,  705. 

Railroad  company's  liability  under  charter 
for  injury  by  defective  crossing,  see 
Highways,  326,  327. 

Municipal  charters,  see  Municipal  Cokpo- 
KATIONS,  I.  d. 

Conditions  on  which  railroad  company  re- 
ceives its  charter,  see  Railroads,  44. 

Sufficiency  of  charter  of  street  railway  com- 
pany, see  Street  Railways,  1. 

See  also  infra,  214,  424. 

Construction    of. 

Judicial  interpretation  of,  as  stare  decisis, 
see  CouR'ts,  300. 

Construction  of  railroad  charter  as  to  high- 
way crossing,  see  Railroads,  43. 

33.  Charter  authority  to  a  railroad  to 
construct  its  road  across  a  river  above  or 
near  a  certain  town  will  justify  the  loca- 
tion of  the  bridge  below  the  town.  Pedrick 
V.  Raleigh  &  P.  S.  R.  Co.  10:  554,  55  S.  E. 
877,  143  N.  C.  485. 

34.  Charter  authority  to  run  a  line  of 
stages  or  carriages  for  the  transportation 
of  persons  for  hire  does  not  include  author- 
ity to  carry  or  maintain  for  hire  exterior 
advertisements  on  the  vehicles.  Fifth  Ave. 
Coach  Co.  v.  New  York,  21:  744,  86  N.  E. 
824,  194  N.  Y.  19. 

Amendment  or  repeal. 

Right  of  attorney  general  to  institute  ac- 
tion to  annul  franchise,  see  Attorney 
General,  6. 

Amendment  of  articles  of  incorporation  of 
building  and  loan  association,  see 
Building  ^d  Loan  Associations,  7, 
14,  15. 

Forfeiture  of  charter  of  social  club,  see 
Clubs,  5. 

Confiscation  or  destruction  of  property  un- 
der reserved  right  to  repeal  charter,  see 
Constitutional  Law,  361. 

Infringement  of  right  to  liberty  or  property 
by  amendment,  see  Constitutional 
Law,  487,  488. 

As  impairing  contract  obligations,  see  Con- 
stitutional Law,  786,  788. 

Sufficiency  of  title  of  act  amending  charter, 
see  Statutes,  138. 

Effect  of  general  statute  to  repeal  corpo- 
rate charter,  see  Statutes,  352. 

Digest   1-52  L.R.A.(N.S.) 


Increase  of  rate  of  tax  on  legacy  to,  after 
receipt  of  charter,  under  power  to  re- 
peal or  amend,  see  Taxes,  353. 

See  also  infra,  306. 

35.  The  amendment  of  the  charter  of  a 
corporation  is  the  act  of  the  legislature,  al- 
thougli  it  is  effected  by  the  vote  of  the 
directors  acting  under  authority  of  the 
legislature.  Lord  v.  Equitable  Life  Assur. 
Soc.  22:  420,  87  N.  E.  443,  194  N.  Y.  212. 

36.  A  special  corporate  charter  may  be 
amended  by  a  general  act  which  does  not 
refer  specifically  to  such  charter.  New 
York,  C.  &  H.  R.  R.  Co.  v.  Williams,  35: 
549,  92  N.  E.  404,  199  N.  Y.  108. 

37.  The  power  reserved  to  the  legislature 
to  amend  corporate  charters  has  reference  to 
the  contract  between  the  state  and  the  cor- 
poration, and  not  to  that  which  alone  con- 
cerns the  corporation  and  its  members. 
Garey  v.  St.  Joe  Min.  Co.  12:  554,  91  Pac. 
369,  32   Utah,   497. 

38.  Constitutional  power  vested  in  the 
legislature  to  amend  a  general  law  of  in- 
corporation involves  power  to  amend  cliar- 
ters  taken  out  under  that  law.  Lord  v. 
Equitable  Life  Assur.  Soc.  22:  420,  87  N.  E. 
443,  194  N.  Y.  212. 

39.  The  application  to  the  charter  of  an 
insurance  company  of  a  statute  reserving 
in  the  legislature  the  power  to  alter  the 
charters  of  all  corporations  is  not  prevented 
by  provisions  in  the  statute  under  which  the 
company  is  organized,  that  corporations 
formed  under  it  shall  be  subject  to  the  pro- 
visions of  the  former  statute  so  far  as  prac- 
ticable, except  matters  herein  otherwise 
provided  for,  and  that  every  charter  under 
the  latter  act  shall  continue  until  repealed. 
Lord  V.  Equitable  Life  Assur.  Soc.  22:  420, 
87  N.  E.  443,  194  N.  Y.  212. 

40.  The  reserved  power  to  amend  a  char- 
ter of  an  insurance  company  will  include 
the  right  to  change  a  provision  requiring  the 
directors  to  be  stockholders,  so  as  to  permit 
them  to  be  mere  policy  holders.  Lord  v. 
Equitable  Life  Assur.  Soc.  22:  420,  87  N.  E. 
443,  194  N.  Y.  212. 

41.  The  rule  that  the  reserved  power  to 
amend  the  charter  of  an  insurance  company 
does  not  include  power,  either  directly  or 
indirectly  by  the  action  of  the  directors 
under  authority  of  a  majority  of  the  stock- 
holders, to  transfer  the  power  of  electing  all 
or  a  majority  of  the  directors  from  the 
stockholders  to  the  policy  holders,  since  that 
would  be  an  unconstitutional  interference 
with  property  rights,  does  not  apply  so  as 
to  prevent  the  amendment  of  a  charter 
which  provided  for  permitting  hoUlers  of 
policies  of  a  certain  face  value  to  vote  for 
directors,  so  as  to  change  the  manner  of  the 
exercise  of  the  right,  and  permit  the  policy 
holders,  or  those  carrying  a  proscribed 
amount  of  insurance,  to  vote  for  all  or  a 
less  number  of  directors.  Lord  v.  Equitable 
Life  Assur.  Soc.  22:  420,  87  N.  E.  443,  194 
N.  Y.  212.  (Annotated) 

42.  Where  the  state  permits  a  corpora- 
tion and  its  members  to  contract  as  to 
whether  or  not  stock  shall  be  assessable,  it 
cannot,  under  its  reserved  power  to  amend 


692 


CORPORATIONS,  IV.  a,  b. 


corporate  charters,  subsequentl_v  amend  the 
charter  so  as  to  authorize  the  majority 
stockholders  to  make  stock  assessable 
against  the  will  of  the  minority.  Garey  v. 
St.  Joe  Min.  Co.  12:  554,  91  Pac.  369,  32 
Utah,  497. 

43.  Under  its  reserved  power  to  alter, 
amend,  or  repeal  corporate  charters,  the  leg- 
islature cannot  amend  an  existing  charter 
so  as  to  authorize  a  majority  of  the  stock- 
holders to  provide,  against  the  will  of  the 
minority,  for  the  assessment  of  paid-up 
stock,  to  be  enforced  by  its  sale,  which,  un- 
der the  original  cliarter,  was  nonassessable. 
Garey  v.  St.  Joe  Min.  Co.  12:  554,  91  Pac. 
369,  32  Utah,  497. 

44.  Reserved  power  to  amend  the  char- 
ter of  a  railroad  company  includes  the  riglit 
to  require  it  to  pay  its  employees  weekly 
in  lawful  money.  Lawrence  v.  Rutland  R. 
Co.  15:  350,  67  Atl.  lOfll,  80  Vt.  370. 

45.  A  statute  invalidly  prohibiting  a 
corporation  from  establishing  11  school  for 
colored  children  within  a  certain  county 
cannot  be  upheld  as  an  amendment  of  the 
charter  of  the  corporation,  so  as  to  take 
away  its  power  to  locate  the  school  there. 
Columbia  Trust  Co.  v.  Lincoln  Institute, 
29:  53,  129  S.  W.  113,  138  Ky.  804. 

46.  The  legislature  may  alter  or  amend 
the  charter  of  a  corporation,  but  cannot 
legitimately  appropriate  its  property  with- 
out the  consent  of  all  of  its  members,  either 
to  its  own  use  or  that  of  a  private  party, 
though  such  party  be  a  successor  corpo- 
ration, in  the  absence  of  some  authorization 
to  the  contrary  in  the  charter  originally. 
Huber  v.  Martin,  3:  653,  105  N.  W.  1031, 
127  Wis.  412. 

47.  The  reservation  of  power  to  repeal 
a  charter  granting  authority  to  construct 
a  dam  to  improve  the  navigation  of  a 
stream  does  not  carry  power  to  make  the 
improvement  a  nuisance,  unless  a  stranger 
desires  to  purchase  and  take  over  the  prop- 
erty. State  ex  rel.  Wausau  Street  R.  Co. 
T.  Bancroft,  38:  526,  134  N.  W.  330,  148 
Wis.  124. 

IV.  Powers,  liahiUties,  and  ofJicer8i 

a.  Rights  and  powers  generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  of  corporation  to  practise  law,  see 
Attorney  General,  8. 

Power  of  loan  association,  see  Bttilding 
AND  Loan  Associations,  V. 

Right  to  exercise  power  of  eminent  domain, 
see  Eminent  Domain,  I.  b. 

Escheat  of  land  held  in  excess  of  authority, 
see  Escheat,  2,  4,  8-11. 

Estoppel  to  deny,  see  Estoppel,  III.  e. 

Use  of  street  by,  see  Highways,  33. 

Right  t»  sue  for  libel,  see  Libel  and  Slan- 
der, 163,  164. 

Digest  1-52  I^R.A.(N.S.) 


48.  An  attempted  act  of  a  corporation 
which  is  beyond  the  object  of  its  creation,  as 
defined  by  the  law  of  its  organization,  is 
wholly  void  and  without  legal  effect.  Stacy 
V.  Glen  Ellyn  Hotel  &  Springs  Co.  8:  966, 
79  N.  E.  133,  223  111.  546. 

49.  A  corporation  cannot  bring  an  action 
ex  delicto  for  a  purely  personal  tort,  nor 
can  it  be  awarded  purely  personal  damages. 
Hansen  Mercantile  Co.  v.  \Vyman,  P.  &  Co, 
21:  727,  117  N.  W.  9:1,  105  Minn.  491. 

50.  A  department  n.n'ntained  by  a  rail- 
road company  for  the  relief  of  injured  em- 
ployees is  not  an  insurance  business,  so  as 
to  be  outside  the  powers  of  the  corporation. 
King  v.  Atlantic  C.  L.  R.  Co.  48:  450,  72  S. 
E.  801,  157  N.  C.  44. 

51.  The  operation  of  a  spur  track  or 
lateral  railroad  by  a  corporation  chartered 
to  operate  a  quarry  is  not  ultra  vires  wliere 
the  statute  requires  such  companies  to 
operate  such  roads.  Westport  Stone  Co.  v. 
Thomas,  35:  646,  94  N.  E.  406,  175  Ind.  319. 
Implied  pourers. 

Of  water  company,  see  Waters,  434. 
See  also  infra,  89. 

52.  A  railroad  company  has  no  implied 
power  to  own  and  operate  a  public  ware- 
house or  grain  elevator,  and  issue  receipts 
to  meet  the  wants  or  convenience  of  a  trad- 
ing exchange.  People  ex  rel.  Healy  v.  Illi- 
nois C.  R.  Co.  16:  604,  84  N.  E,  368,  233 
111.  378. 

53.  A  railroad  company  has  no  implied 
power  to  grant  the  exclusive  right  to  use 
its  box  cars  for  advertising  purposes.  Na- 
tional Car  Advertising  Co.  v.  Louisville  & 
N.  R.  Co;  24:  loio,  66  S.  E.  88,  110  Va.  413. 

54.  A  corporation  organized  to  carry  on 
a  brewing  business  has  no  implied  au- 
thority to  rent  land  and  construct  a  saloon 
and  boarding  house  near  a  quarry,  although 
it  will  thereby  increase  the  market  for  its 
product.  United  States  Brewing  Co.  v. 
Dolese  &  Shepard  Co.  47:  898,  102  N.  E. 
753,  259  111.   274.  (Annotated) 

ft.  Owning  stock,  0/  other  companies. 

(See   also   same   heading  vn  Digest  L.R.A. 
1-70.) 

Setting  aside  transfer  of  bonds  in  equity, 

see  Creditors'  Bill,  A 
Collateral   inquiry   into  purpose   for   which 

stock  in  corporation  was  purchased,  see 

Eminent  Domain,  159. 
See  also  supra,  6;   infra,  205. 

55.  A  corporation  organized  for  the  pur- 
pose of  "buying,  selling,  leasing,  and  dealing 
in  lands,  securities,  bonds,  stock,  and  other 
negotiable  paper,  and  also  buying  and  sell- 
ing general  merchandise,"  has  no  corporate 
power  to  build  and  operate  cotton  gins,  or 
to  subscribe  for  stock  in  and  from  another 
corporation  for  that  purpose.  Harrill  v. 
Davis,  22:  1 153,  168  Fed.  187,  94  C.  C.  A. 
47. 


CORPORATIONS,  IV.  c,  d,  1. 


693 


c.  Mode    of    corporate    action;    acts    of 
agents. 

(See   also   same   heading   in  Digest   L.R.A. 

1-70.) 

As  to  power  of  officers,  generally,  see  infra, 

IV.  g,  2. 
Resolution    of    directors    as    memorandum 

within  statute  of  frauds,  see  Contracts, 

296. 
Binding   effect   of   president's   unauthorized 

act  in  borrowing  money,  see  Evidence, 

2297. 

56.  To  bind  a  corporation  by  the  acta  of 
one  as  its  agent,  either  upon  the  ground 
of  an  implied  authority  or  of  estoppel,  it 
must  appear  that  the  corporation  is  charge- 
able with  notice  of  the  acts  relied  upon  to 
establish  such  implied  authority  or  estoppel. 
Schlesinger  v.  Forest  Products  Co.  (N.  J. 
Err.  &  App.)  30:  347,  76  Atl.  1024,  78  N.  J. 
L.  637. 

57.  Delivery  to  the  mortgagee  of  posses- 
sion of  mortgaged  chattels  by  officers  of  the 
corporation  mortgagor,  acting  without  .au- 
thority from  the  corporation,  is  not  binding 
upon  it.  Jones  v.  North  Pacific  Fish  &  Oil 
Co.  6:  940,  84  Pac.  1122,  42  Wash.  332. 

58.  An  admission  or  representation  by 
the  president  of  a  corporation  as  to  the 
purpose  for  which  he  borrowed  money  on 
its  behalf  is  not  binding  upon  it,  where  his 
act  was  unauthorized.  Thompson  v. 
Laboringman's  Mercantile  &  Mfg.  Co. 
6:  311,  53  S,  E.  908,  60  W.  Va.  42. 

d.  Contracts;  ultra  vires. 

1.  Poxver  to  contract. 

(See   also   same  heading   in  Digest  L.R.A. 

1-70.) 

Implied  power  to  contract,  see  supra,  53,  54 ; 
Contracts,  29. 

As  to  owning  stock  of  other  company,  see 
supra,  IV.  b. 

Power  of  officers  and  agents  to  make,  see 
infra,  IV.  g,  2. 

Tax  on  transfer  of  stock,  see  infra,  VII. 

Review  of  discretion  as  to  injunction  to  re- 
strain corporation  from  proceeding  un- 
der contract,  see  Appeal  and  Erbob, 
634. 

Ultra  vires  guaranty  by  building  and  loan 
association,  see  Building  and  Loan 
Associations,  5. 

Injunction  against  ultra  vires  contract  of 
public  corporation,  see  Injunction,  15, 
16, 

Conclusiveness  of  allowance  of  claim  by 
bankruptcy  court  against  plea  of  ultra 
vires,  see  Judgment,  76. 

Contracts  by  municipal  corporations,  see 
Municipal  Corporations,  II.  d. 

Novation  of  contract,  see  Novation,  6. 

Specific  performance  of  ultra  vires  contract, 
see  Specific  Performance,  30. 

See  also  supra,  48,  51. 

Digest   1-52  L.R.A.(N.S.) 


59.  The  doctrine  of  ultra  vires  should  be 
so  administered  in  respect  to  contracts, 
whether  made  by  private  or  municipal  cor- 
porations, as  not  to  defeat  the  ends  of  jus- 
tice or  work  a  public  wrong.  Bell  v.  Kirk- 
land,  13:  793,  113  N.  W.  271,  102  Minn.  213. 

GO.  A  corporation  organized  to  manufac- 
ture and  sell  beer  may  contract  to  indem- 
nify sureties  on  the  bonds  of  persons  who 
retail  its  product.  Timm  v.  Grand  Rapids 
Brewing  Co.  27:  186,  125  N.  W.  357,  160 
Mich.   371.  (Annotated) 

61.  A  railroad  company  has,  in  the  ab- 
sence of  charter  authority,  no  power  to 
guarantee  the  interest  and  dividends  on 
stock  and  bonds  necessary  for  the  construc- 
tion of  a  summer  hotel,  although  the  opera- 
tion of  the  hotel  may  increase  its  business; 
and  the  fact  that  the  contract  is  in  the 
form  purporting  to  give  the  hotel  company 
a  commission  on  traffic  contributed  by  it  is 
immaterial.  Western  Maryland  R.  Co.  v. 
Blue  Ridge  Hotel  Co.  2:  887,  62  Atl.  351, 
102  Md.  307.  (Annotated) 

62.  A  railroad  company,  in  purchasing 
its  right  of  way,  may  bind  itself  by  a  condi- 
tion to  complete  the  road  within  a  specified 
time.  Oregon  R.  &  Nav.  Co.  v.  McJDonald, 
32:  117,  112  Pac.  413,  58  Or.  228. 

63.  A  conveyance  of  real  estate  by  war- 
ranty deed  by  a  corporation  exercising  cor- 
porate powers  without  authority  is  void. 
Lafferty  v.  Evans,  21:  363,  87  Pac.  304,  17 
Okla.  247. 

64.  A  corporation  may  bind  itself  by  a 
contract  from  the  time  of  filing  its  articles 
of  incorporation,  under  statutes  requiring 
them  to  be  filed,  and  providing  that  no  cor- 
poration shall,  until  such  articles  are  left 
for  record,  have  legal  existence,  and  that  no 
corporation  shall  transact  business  with  any 
other  than  its  members  until  a  certain  por- 
tion of  its  stock  is  subscribed  and  paid  in, 
and  depriving  it  of  any  right  of  action  upon 
any  obligation  contracted  in  violation  of 
the  statute,  but  rendering  its  existing  stock- 
holders personally  liable  thereon.  Sentinel 
Co.  v.  A.  D.  Meiselbach  Motor  Wagon  Co. 
32:  436,  128  N.  W.  861,  144  Wis.  224. 

65.  It  is  not  ultra  vires  for  a  canal  com- 
pany to  bind  itself  merely  to  make  a  basin 
connected  with  its  canal  within  land  con- 
veyed to  it,  as  part  consideration  for  the 
transfer  of  such  property.  Dawson  v.  West- 
ern Marvland  R.  Co.  14:  809,  68  Atl.  301, 
107  Md.'70. 

66.  A  corporation  organized  for  the  pur- 
pose of  constructing,  owning  and  oper- 
ating a  street  railway,  may  make  a  valid 
contract  to  furnish  or  pay  for  medical  aid 
and  attention  to  one  injured  upon  its  cars 
or  tracks;  and  an  action  against  it  for 
damages  for  a  breach  of  such  contract  may 
be  maintained.  Youngstown  Park  &  F.  S. 
R.  Co.  v.  Kessler,  36:  50,  95  N.  E.  509,  84 
Ohio  St.  74. 

67.  A  contract  to  perform  medical  or 
surgical  services  by  a  corporation  orga- 
nized for  the  purpose  of  constructing,  own- 
ing, and  operating  a  street  railway  is  ul- 
tra vires,  and  void,  especially  where  the 
statutes  regulating  the  practice  of  medicine  \ 


694 


CORPORATIONS,  IV.  d,  1. 


make  no  provision  for  practice  by  corpora- 
tions. Youngstown  Park  &  F.  S.  R.  Co. 
V.  Kessler,  36:  50,  95  N.  E.  509,  84  Ohio 
St.  74. 

68.  A  contract  by  a  railroad  company  in 
consideration  of  a  release  by  an  injured 
employee  of  hia  claim  for  injuries,  to  give 
him  employment  as  long  as  he  lives  and 
proves  a  competent  and  worthy  man,  is 
not  ultra  vires.  Cox  v.  Baltimore  &  0.  S. 
W.  R.  Co.  50:  453,  103  N.  E.  337,  180  Ind. 
495. 

69.  All  persona  dealing  with  the  trus- 
tees of  a  corporation  organized  for  charita- 
ble and  religious  purposes,  to  furnish  a  home 
for  the  aged  and  infirm,  aad  also  for  indi- 
gent orphans,  must  at  their  peril  take  notice 
of  the  powers  granted  by  its  articles  of  in- 
corporation. Horton  v.  Tabitha  Home, 
51:  161,  145  N.  W.  1023,  95  Neb.  491. 

70.  The  trustees  elected  to  manage  the 
affairs  of  a  corporation  organized  for  chari- 
table and  religious  purposes,  to  furnish  a 
home  for  the  aged  and  infirm,  and  also  for 
indigent  orphans,  cannot  enter  into  a  valid 
contract  by  which  its  property  may  become 
subject  to  mechanics'  liens,  without  first 
having  obtained  an  order  of  the  district 
court  for  that  purpose.  Horton  v.  Tabitha 
Home,  51:  161,  145  N.  W.  1023,  95  Neb.  491. 

71.  The  sending  out  of  circulars  setting 
out  the  facts  relative  to  a  controversy  be- 
tween certain  shareholders  of  a  corporation 
and  the  directors  as  to  matters  of  business 
policy,  and  the  views  of  the  directors  in  re- 
gard thereto,  and  asking  the  support  of  the 
shareholders  at  the  meeting;  the  affixing  of 
revenue  stamps  on  proxy  papers  sent  to  the 
shareholders;  the  insertion  of  names  of  pro- 
posed proxies  therein;  and  the  provision  of 
stamped  envelops  for  their  return, — are  not 
ultra  vires  of  the  corporation,  and  any  exr 
penses  so  incurred  by  the  directors  bona  fide 
acting  in  the  interests  of  the  corporation, 
and  not  to  serve  their  own  interests,  are 
properly  payable  out  of  the  funds  of  the 
company.  Peel  v.  London  &  N.  W.  R.  Co. 
3  B.  R.  C.  120,  [1907]  1  Ch.  5.  Also  Re- 
ported in  76  L.  J.  Ch.  N.  S.  152,  95  L.  T. 
N.  S.  897,  23  Times  L.  R.  85,  14  Manson, 
30.  (Annotated) 
Lease. 

See  also  supra,  54. 

72.  A  strictly  private  corporation  may 
lawfully  make  a  lease  of  its  entire  proper- 
ty for  a  term  of  years,  although  no  express 
authority  to  lease  is  contained  in  the  arti- 
cles of  incorporation,  where  it  cannot  profit- 
ably continue  operations,  and  such  financial 
exigencies  exist  as  render  such  action  neces- 
sary or  appropriate.  Anderson  v.  Shawnee 
Compress  Co.  15:  846,  87  Pac.  315,  17  Okla. 
231. 

As  to  negotiable  paper. 
Accommodation    indorsement    of    note,    see 

Bills  and  Notes,  143. 
Presumption  as  to  indorsement  of  note,  see 

Evidence,  315. 

73.  A  manufacturing  corporation  cannot 
lend  its  credit  by  an  accommodation  in- 
dorsement or  contract  of  suretyship  or 
Digest   1-52  I<.R.A.(N.S.) 


guaranty.     Haupt  v.  Vint,  34:  518,  70  S.  E. 
702,  68  W.  Va.  657. 

74.  The  issuance  of  accommodation  pa- 
per by  a  corporation  for  the  benefit  of  its- 
principal  stockholder  cannot  be  justified  on 
the  ground  that  it  seems  expedient  to  do 
so.  Cook  v.  American  Tubing  &  Webbing 
Co.  9:  193,  65  Atl.  641,  28  R.   I.  41. 

( Annotated ) 

75.  That  accommodation  paper  issued  by 
a  corporation  in  excess  of  its  charter  poweis 
is  authorized  by  a  majority  of  the  stock- 
holders does  not  validate  it  as  against  the 
rights  of  minority  stockholders  or  creditors. 
Cook  V.  American  Tubing  &  Webbing  Co. 
9:  193,  65  Atl.  641,  28  R.  I.  41.  (Annotated) 
Purckases  generally. 

76.  Communication  by  one  employed  as 
manager  of  a  corporation,  to  its  directors, 
of  acceptance  of  a  proposition  contained  in 
its  duly  adopted  resolution,  that,  in  case 
of  his  inability  to  dispose  of  his  private 
business,  the  corporation  purchase  it  for  a 
certain  sum  at  any  time  before  a  certain 
date,  is  sufficient  to  constitute  a  sale  with- 
out the  necessity  of  entering  the  fact  of 
the  acceptance  in  the  records  of  tne  corpo- 
ration. Iowa  Drug  Co.  v.  Souers,  19:  115, 
117  N.  W.  300,  139  Iowa,  72. 
Repurchase  of  its  ow^n  stock. 
Reaching  by  creditors'   bill  money  paid   by 

corporation  for  its  own  stock,  see  Cri;d- 
iTOKs'  Bill,  14. 

Presumption  as  to  stockholder's  intent  in 
reselling  stock  to  corporation,  see  Evi- 
dence, 231. 

See  also  infra,  140,  402. 

77.  A  corporation  cannot  be  the  pur- 
chaser of  its  own  shares.  Per  Bargrave 
Deane,  J.,  in  The  Manor,  4  B.  R.  C.  500, 
[1907]  P.  339.  Also  Reported  in  96  L.  T. 
N.  S.  871. 

78.  As  a  general  rule  unless  plainly  pro- 
hibited by  statute  or  its  organic  act,  a  cor- 
poration may  buy  its  own  stock,  using  its 
assets  therefor,  so  long  as  it  acts  in  good 
faith  pursuant  to  authorization  by  its  gov- 
erning body,  and  its  officers,  acting  in  like 
good  faith,  may  do  so  as  to  stockholders  ac- 
tually or  impliedly  consenting  and  as  to 
past  or  future  creditors.  Atlanta  &  W. 
I3utter  &  Cheese  Asso.  v.  Smith,  32:  137,  123 
N.  W.  106,  141  Wis.  377. 

79.  As  a  general  rule,  in  case  a  corpora- 
tion purchases  its  own  stock,  paying  there- 
for by  corporate  assets,  subsequent  creditors 
cannot  be  regarded,  judicially,  as  preju- 
dicially afTected.  Atlanta  &  W.  Butter  & 
Cheese  Asso.  v.  Smith,  32:  137,  123  N.  W. 
106,    141    Wis.    377. 

80.  An  agreement  by  a  corporation, 
as  part  of  a  contract  of  subscription  to  its 
stock,  to  repurchase  the  stock  with  interest 
or  a  bonus  within  a  certain  time  under 
specified  conditions,  is  not,  if  it  can  be  done 
without  injury  to  creditors,  precluded  by  a 
statute  prohibiting  directors  from  dividing, 
withdrawing,  or  paying  to  the  stockholders 
any  part  of  the  capital  stock,  or  from  re- 
ducing the  capital  stock.  Schulte  v.  Boule- 
vard Gardens  Land  Co.  44:  156,  129  Pac. 
582,   1G4   Cal.   464.  (Annotated) 


CORPORATIONS,  IV.  d,  2. 


695 


81.  The  purchase  by  a  corporation  of 
shares  of  its  own  capital  stock  is  a  fraud 
upon  its  creditors.  Hall  v.  Alabama  Ter- 
minal &  Improv.  Co.  2:  130,  39  So.  285,  143 
Ala.  464.  (Annotated) 

82.  A  transaction  by  which  a  corpora- 
tion, in  consideration  of  receiving  from  an- 
other company  certain  undescribed,  indefi- 
nite rights,  estimated  at  a  valuation  of  $500- 
000,  issued  to  it  shares  of  stock  for  that 
amount,  and  received  back  from  it  $371,800 
of  that  issue,  which  it  held  as  full-paid 
treasury  stock,  does  not  disclose  a  "legiti- 
mate corporate  purpose"  within  the  New 
Jersey  act  concerning  corporations  (Revi- 
sion of  1890),  impliedly  granting  power  to 
corporations  to  purchase  shares  of  their 
own  capital  stock  for  a  legitimate  corporate 
purpose,  but  not  otherwise.  Knickerbocker 
Importation  Co.  v.  State  Bd.  of  Assessors, 
9:  885,   65   Atl.   913,  74  N.   J.   L.   583. 

83.  Notwithstanding  a  corporation  is 
solvent  and  has  no  creditors,  an  agreement 
by  it  to  repurchase  its  own  stock  is  both 
contrary  to  public  policy  and  violative  of 
the  letter  and  spirit  of  a  statute  which 
provides  that  it  shall  not  be  lawful  to  make 
any  dividend  except  from  net  profits,  nor 
to  divide,  withdraw,  or  in  any  manner  pay 
to  any  stockholder  any  part  of  the  capital 
stock,  nor   to  reduce  the  capital  stock  ex- 

■  cept  in  the  prescribed  manner.  Kom  v. 
Codv  Detective  Agency,  50:  1073,  136  Pac. 
1155,  76  Wash.  540. 

84.  A  solvent  stockholder  who  delivers  to 
an  insolvent  bank  shares  of  its  own  stock 
in  consideration  of  a  credit  on  his  indebted- 
ness to  the  bank  of  an  amount  considered 
by  him  and  the  president  of  the  bank  as  the 
fair  valuation  thereof,  holds  the  credit  so 
received  subject  to  the  rights  of  the  creditors 
of  the  bank,  and  a  receiver  subsequently  ap- 
pointed may  recover  the  amount  thereof  for 
their  benefit,  although  both  the  stockholder 
arid  the  bank  president  acted  in  good  faith 
and  without  actual  knowledge  of  the  bank's 
insolvency.  McGregor  v.  Fitzpatriek,  25: 
50,  65  S.  E.  859,  133  Ga.  332.  (Annotated) 
Transfer   of  entire   property. 

Sale   of   assets   of   insurance   company,   see 

Insurance,  22. 
Laches  in  seeking  injunction  against  sale  of 

assets,  see  Limitation  of  Actions,  71. 
See  also  infra,  386. 

85.  The  mere  fact  that  one  person  owned 
the  majority  of  the  stock  of  two  corpora- 
tions does  not  per  se  make  the  sale  of  as- 
sets of  one  to  the  other  void.  Beidenkopf 
V.  Des  Moines  L.  Ins.  Co.  46:  290,  142  N. 
W.  434,  160  Iowa,  629. 

Chattel  mortgage. 
See  also  infra,  97. 

86.  A  private  business  corporation  has 
authority  to  borrow  money,  give  the  ordi- 
nary evidence  therefor,  and  secure  the  pay- 
ment thereof  by  a  chattel  mortgage,  subject 
to  such  regulations  as  may  be  prescribed 
in  the  written  law  or  the  by-laws  of  the 
corporation.      Eastman     v.     Parkinson,     13: 

,    921,  113  N.  W.  649,  133  Wis.  375. 

87.  A  statutory  regulation  of  the  exer- 
cise by  a  corporation  of  the  power  to  exe- 
Digest  1-52  L.R.A.(N.S.) 


cute  a  chattel  mortgage  upon  its  property, 
such  as  requiring  a  majority  of  the  stock- 
holders to  consent  thereto,  but  not  express- 
ly or  by  necessary  implication  declaring  a 
mortgage  made  in  violation  thereof  void,  is 
regarded  as  a  law  solely  for  the  protection 
of  stockholders.  Eastman  v.  Parkinson,  13: 
921,  113  N.  W.  649,  133  Wis.  375. 
Excessive  lean. 

88.  One  lending  money  to  a  bank  within 
the  limit  which  the  bank  has  charter  au- 
thority to  borrow,  witliout  knowledge  or 
reason  to  know  of  other  loans  the  aggre- 
gate of  which  exceeds  the  limit,  is  not  af- 
fected by  the  charter  limitation.  Citizens' 
Bank  v.  Weakley,  11:598,  103  S.  W.  249, 
126  Ky,  169.  (Annotated) 
Insuring  life  of  officer. 

89.  A  manufacturing  company  has  no 
implied  power  to  insure  the  life  of  its  pres- 
ident and  carry  the  policy  after  he  has  re- 
tired from  office.  Victor  v.  Louise  Cotton 
Mills,  16:  1020,  61  S.  E.  648,  148  N.  C.  107. 

(Annotated) 

2.  Effect  of  ultra  vires;  right  to  set  up 
as  defense. 

(See   also   same   heading   in  Digest  L.R.A. 

1-10.) 

Conclusiveness  of  allowance  of  claim  by 
bankruptcy  court  against  plea  of  ultra 
vires,  see  Judgment,  76. 

90.  Although  a  contract  by  a  corpo- 
ration organized  to  conduct  a  brewing  busi- 
ness, to  rent  land  and  erect  thereon  a 
saloon  and  boarding  house,  with  a  proviso 
that,  should  a  prohibitory  law  be  adopted, 
the  lessor  would  pay  it  the  value  of  the 
buildings,  is  ultra  vires,  the  corporation 
may,  under  the  common  counts,  recover  the 
reasonable  worth  of  the  building  when  it 
passes  into  possession  of  the  lessor,  upon 
surrender  of  the  lease.  United  States 
Brewing  Co.  v.  Dolese  &  Shepard  Co.  47: 
898,  102  N.  E.  753,  259  111.  274. 

Right  of  corporation,  stockholder,  or- 

creditor. 
Estoppel  to  set  up  ultra  vires,  see  Estoppei,,. 

233,  235. 

91.  The  rule  that  a  corporation  will  not 
be  permitted  to  set  up  the  ultra  vires  of  a 
contract  from  which  it  has  received  a  profit 
does  not  apply  where  an  officer  of  a  trust 
company  undertook  without  authority  to 
guarantee  the  sale  of  securities  of  a 
stranger,  in  case  he  would  come  into  a  pool- 
ing agreement  to  be  organized  to  maintain 
the  price  of  such  securities,  if  the  corpora- 
tion never  received  the  securities,  while  the 
pooling  agreement  was  never  consummated, 
so  that  the  purposes  of  the  guaranty  failed. 
Gause  v.  Commonwealth  Trust  Co.  24:  967^ 
89  N.  E.  476,  196  N.  Y.  134. 

92.  Although  a  guaranty  by  a  national 
bank  of  repayment  of  a  loan  made  by  a 
stranger  to  its  debtor,  which  is  larger  in 
amount  than  he  owes  it,  but  out  of  the  pro- 
ceeds of  which  it  is  to  receive  its  claim,  is 
ultra  vires,   it  is   liable   to   the   lender   for^ 


696 


CORPORATIONS,  IV.  d,  3,  4. 


the  sum  which  it  receives  by  reason  of  such 
guaranty.  Appleton  v.  Citizens'  Central 
Nat.  Bank,  32:  54^,  83  N.  E.  470,  190  N.  Y. 
417.  (Annotated) 

93.  A  brewing  company  which  induces 
one  to  become  surety  for  a  person  retailing 
its  product,  by  undertaking  to  indemnify 
him  from  liability  as  such,  is  estopped  to 
set  up  ultra  vires  in  a  suit  to  enforce  such 
indemnity.  Tiram  v.  Grand  Rapids  Brew- 
ing Co.  27:  186,  125  N.  W.  357,  160  Mich. 
371. 

94.  A  national  bank  cannot  refuse  to 
turn  over  money  belonging  to  others  which 
has  come  into  its  possession  through  an  at- 
tempt to  conduct  the  business  of  its  debtor 
so  as  to  secure  payment  of  its  debt;  al- 
though it  had  no  power  to  conduct  such 
business.  Emigh  v.  Earling,  27:  243,  115  N. 
W.  128,  134  W'is.  565.  (Annotated) 

95.  Where  a  national  bank,  through  its 
agent,  in  carrying  out  a  bridge  contract  of 
its  debtor,  the  proceeds  of  which  contract 
were  received  by  the  bank,  incurred  an  in- 
debtedness, the  bank  having  received  the 
benefit  of  the  property  for  which  the  in- 
debtedness was  incurred,  is  estopped  to  deny 
its  liability  therefor,  although  the  carry- 
ing out  of  the  contract  was  ultra  vires;  and 
it  is  immaterial  whether  the  bank  made  a 
profit  or  sustained  a  loss  in  the  transac- 
tion. Shawnee  Nat.  Bank  v.  Purcell  Whole- 
sale Grocery  Co.  41:494,  124  Pac.  603,  34 
Okla.  34. 

96.  A  corporation  organized  to  transact 
a  wholesale  drug  business,  with  power  to 
purchase  such  personal  property  as  may 
be  deemed  advisable  in  the  conduct  of  said 
business,  cannot  repudiate  a  consummated 
purchase  by  its  directors  of  the  retail  drug 
business  of  a  person  whose  services  they 
desired  to  secure  as  manager,  after  the  value 
of  such  business  has  been  destroyed.  Iowa 
Drug  Co.  v.  Souers,  19:  115,  117  N.  W.  300, 
139  Iowa,  72. 

97.  A  chattel  mortgage  made  in  good 
faith  by  a  corporation  upon  its  property  in 
violation  of  a  statutory  regulation  requiring 
a  majority  of  the  stockholders  to  consent 
thereto,  but  not  expressly  or  impliedly  de- 
claring a  mortgage  made  in  violation  of 
such  requirement  to  be  void,  cannot  be  im- 
peached by  the  corporation,  or  anyone  rep- 
resenting it,  or  its  creditors  or  stockholders, 
in  the  absence  of  some  written  law  to  the 
contrary,  where  the  corporation  has  received 
the  full  benffit  of  the  mortgage,  and  has 
appropriated  the  amount  to  its  legitimate 
use.  Eastman  v.  Parkinson,  13:  921,  113 
N.  W.  649,  133  Wis.  375. 

98.  A  subsequent  creditor  cannot  attack 
a  corporate  mortgage  on  the  ground  that  it 
was  for  the  benefit  of  a  director,  and  was 
authorized  at  an  illegal  meeting  with  no 
quorum  present.  Marsters  v.  Umpqua  Val- 
ley Oil  Co.  12:  825,  90  Pac.  151,  49  Or.  374. 

(Annotated) 

99.  A  stockholder  who  refrains  from 
seeking  preventive  relief  from  an  attempted 
lease  of  corporate  property  until  the  lease 
has  been  consummated,  and  the  lessee  has 
made  large  expenditures,  and  stock  has  been 
Digest   1-52  L..R.A.(N.S.) 


I  transferred  upon  the  faith  of  it,  will  be  held 
'  to  have  waived  his  right  to  object.     Hill  v. 
Atlantic  &  N.  C.  R.  Co.  9:  606,  55  S.  E.  854, 
143  N.  C.  539.  (Annotated) 

Right   of  other  party  to   contract. 
Estoppel  as  to,  see  Estoppel,  71. 

100.  One  who  has  entered  into  a  contract 
with  a  coriX)ration  cannot  maintain  an  ac- 
tion for  its  .cancelation,  merely  upon  the 
ground  that  it  relates  to  a  transaction  for- 
eign to  any  purpo.se  mentioned  i-\  the  com- 
pany's charter,  since  that  is  ordinarily  a 
matter  between  it  and  the  state,  not  open  to 
collateral  inquiry.  Harris  v.  Indt^pendence 
Gas.  Co.  13:  1171,  92  Pac.  1123,  76  Kan.  750. 

101.  Wliere  a  corporation  organized  un- 
der a  statute  providing  that  corporations 
"shall  make  no  contract,  or  purcha,se  or 
hold  any  property  of  any  kind,  except  such 
as  is  necessary  in  legitimately  carrying  into 
effect"  the  declared  purposes  of  tlie  corpo- 
ration, is  seeking  specific  performance  of 
an  executory  contract  for  the  sale  of  real 
estate  upon  cross  petition,  in  an  action  by 
the  owner  to  enjoin  it  from  asserting  any 
rights  under  the  contract,  the  owner  may 
raise  the  question  of  the  power  of  the  cor- 
poration to  hold  the  real  estate.  Koiilruss 
v.  Zachry,  46:  72,  77  S.  E.  812,  139  Ga. 
625.  (Annotated) 

102.  One  who  has  executed  to  a  corpora- 
tion an  oil  and  gas  lease  cannot  maintain  an 
action  to  cancel  that  portion  of  it  relating 
to  oil,  on  the  ground  that  the  only  purpose 
of  the  company's  existence,  mentioned  in  its 
charter,  is  "to  dig  or  mine  for  natural  gas 
and  sell  the  same  for  heat  and  lighting 
purposes."  Harris  v.  Independence  Gas  Co. 
13:  1 171,  92  Pac.  1123,  76  Kan.  750. 

3.  Formal  requisites. 

(See  aaane  heading  in  Digest  L.B.A.  1-70.) 

4.  Ratification. 
See  also  infra,  145,  154-156. 

103.  A  corporation  which  ratifies,  or 
knowingly  accepts,  the  benefits  of  a  contract 
made  by  one  of  its  agents,  cannot  repudiate 
the  contract  on  the  ground  that  the  agent 
had  no  actual  authority  to  execute  it. 
Stromberg-Carlson  Teleph.  Mfg.  Co.  v.  Bar- 
ber, 18:  680,  116  N.  W.  157,  81  Neb.  517. 

104.  Failure  on  the  part  of  a  corpora- 
tion to  dissent  from,  or  repudiate,  the  un- 
authorized act  of  its  president  in  borrowing 
money,  within  a  reasonable  time,  dependent 
upon  the  nature  of  the  transaction  and 
the  situation  and  surroundings  of  the 
parties  concerned,  is  evidence  of  ratification 
of  the  unauthorized  act.  Tho  ipson  v. 
Laboringman's  Mercantile  &  Mfg.  Co. 
6:  311,  53  S.  E.  908,  60  W.  Va.  42. 

(Annotated) 

105.  Lack  of  knowledge,  on  the  part  of  a 
corporation,  of  any  of  the  material  facts 
connected  with  an  unauthorized  act  of  its 
president  in  borrowing  money  in  its  behalf, 
will  prevent  its  silence  or  failure  to  re-  * 
pudiate  the  act  from  amounting  to  a  ratifi* 


CORPORATIONS,  IV.  e,  f. 


697 


cation  of  it.  Thompson  v.  Laboringman's 
Mercantile  &  Mfg.  Co.  6:  311,  53  S.  E.  908, 
60  W.  Va.  42.  (Annotated) 

106.  A  corporation  organized  for  the  sale 
of  drugs  is  liable  on  a  note  executed  by  its 

^  general  manager  for  the  purchase  price  of 
a  piano  and  jewelry,  if,  after  having  full 
knowledge  of  the  facts,  it  failed  to  repudiate 
the  act.  Johnson  County  Sav.  Bank  v. 
Scoargin  Drug  Co.  50:  581,  67  S.  E.  253,  152 
N.  C.  142. 

107.  A  contract  by  the  president  of  a  cor- 
poration in  settling  the  claim  of  an  in- 
jured employee,  to  pay  him  a  sum  of  money 
and  give  him  permanent  employment,  is 
ratified  by  the  directors  making  the  pay- 
ment therein  agreed  upon.  Cox  v.  Balti- 
more &  0.  S.  W.  R.  Co.  50:  453,  103  N.  E. 
337,  180  Ind.  495. 

108.  That  one  who  negotiated  the  pur- 
chase of  real  estate  on  behalf  of  a  corpora- 
tion was  neither  an  officer  nor  director  of  it 
cannot  be  taken  advantage  of  by  the  seller 
to  avoid  performance  if  the  contract  was 
ratified  by  the  corporation.  Western  Tim- 
ber Co.  V.  Kalama  River  Lumber  Co.  6:  397, 
85  Pac.  338,  42  Wash.  620. 

109.  A  change  in  the  lease  of  the  desig- 
nated depositary  of  the  securities,  to  guar- 
antee compliance  with  the  terms  of  a  lease 
of  corporate  property,  from  the  terms  of  the 
resolution  authorizing  it,  is  authorized  by 
an  approval  by  a  regular  meeting  of  the  re- 
port of  the  president  that  the  deposit  had 
been  made  wi^h  the  depositary  designated 
in  the  lease, — especially  where  an  investi- 
gation is  made  by  a  committee  appointed  by 
the  meeting  as  to  the  place  and  amount  of 
the  deposit.  Hill  v.  Atlantic  &  N.  C.  R.  Co. 
9:  606,  55  S.  E.  854,  143  N.  C.  539. 

e.  Property  rights. 

Power  to  purchase  or  transfer  property,  see 

supra,  IV.  d. 
Effect  of  dissolution  on,  see  infra,  VI.  c. 
Foreign  corporation,  see  infra,  413. 
Malicious  attachment  of  corporate  property, 

see  Bankbuptcy,  96. 
Capacity    to    take    devise    or    bequest,    see 

Charities,  38,  39. 
Conflict   of   laws   as   to,   see   Conflict   of 

Laws,  104. 
Due  process  in  forfeiting  land  of,  see  Con- 
stitutional Law,  570. 
Dedication    of   property   to   public   use   by, 

see  Dedication,  2. 
Escheat  of  property  of,  see  Escheat,  2,  4, 

8-11. 
Specific  performance  of  ultra  vires  contract 

as  to,  see  Specific  Performance,   30. 
See  also  supra,  101. 

110.  Charter  authority  in  the  corporation 
to  perform  the  act  is  necessary  to  render 
valid  an  attempted  dedication  by  the  direc- 
tors of  a  corporation  of  its  property  for 
public  use.  Stacy  v.  Glen  Ellyn  Hotel  & 
Springs  Co.  8:  966,  79  N.  E.  133,  223  111.  546. 

(Annotated) 
Digest  1-52  Ii.R.A.(N.S.) 


/.  Liahilities, 

(See  also   same   heading   in  Digest   L.R.A. 

1-70.) 

After  consolidation,  see  supra,  21-32. 

Power  of  officers  and  agents  to  bind,  see  in- 
fra, IV.  g,  2. 

Liability  of  corporation  organized  to  con- 
tinue business  of  insolvent  partnership, 
see  Fraudulent  Conveyances,  25; 
Pleading,  408. 

Imputing  officer's  or  agent's  knowledge  to 
corporation,  see  Injunction,  117. 

111.  A  corporation  which  lawfully  ac- 
quires all  the  property  of  a  partnership  does 
not  thereby  become  responsible  for  the  part- 
nership's debts.  Culberson  v.  Alabama  Con- 
struction Co.  9:  411,  50  S.  E.  765,  127  Ga. 
399. 

112.  A  corporation  which  continues  the 
business  of  an  insolvent  partnership  is  not, 
in  the  absence  of  fraud,  liable  for  its  debts, 
where  it  is  organized  by  the  former  part- 
ners, who  pay  for  their  stock  by  insurance 
money  collected  for  the  destruction  of  the 
partnership  assets  by  fire,  and  a  stranger 
who,  with  knowledge  of  the  facts,  con- 
tributed cash  equal  to  that  of  each  partner, 
each  contributor  taking  a  pro  rata  share 
of  stock  for  his  contribution.  Byrne  Ham- 
mer Dry  Goods  Co.  v.  Willis-Dunn  Co. 
29:  589,  121  N,  W.  620,  23  S.  D.  221. 

( Annotated ) 

113.  The  mere  fact  that  a  ward's  money 
went  into  the  bank  account  of  a  corporation 
through  the  fraudulent  conduct  of  its  treas- 
urer does  not  render  the  corporation  liable 
therefor  if  the  treasurer  is  shown  to  have 
removed  it  again  from  ruch  account  into 
the  possession  of  other  persons.  Brook- 
house  V.  Union  Pub.  Co.  2:  993,  62  Atl.  219, 
73  N.  H.  368. 

114.  The  mere  fact  that  a  corporation  has 
the  incidental  use  of  money  belonging  to  a 
ward  for  a  short  time  while  it  is  passing 
through  its  bank  account  in  consequence  of 
the  fraudulent  conduct  of  its  treasurer,  who 
makes  use  of  it  for  his  own  purposes,  does 
not  charge  the  company  as  trustee  for  the 
ward.  Brookhouse  v.  Union  Pub.  Co.  2:  993, 
62  Atl.  219,  73  N.  H.  368. 

115.  A  fund  loaned  to  a  corporation  on 
application  of  its  general  manager,  wlio  had 
authority  to  secure  it,  deposited  to  its  ac- 
count, and  checked  out  by  him  under  hi* 
authority  as  manager,  comes  into  its  pos- 
session so  as  to  create  an  obligation  to  repay 
it,  although  it  was  borrowed  by  the  manager 
for  the  use  of  a  stranger,  and  immediately 
turned  over  to  him.  Cook  v.  American 
Tubing  &  Webbing  Co.  9:  193,  65  Atl.  641, 
28  R.  I.  41. 

116.  A  corporation  may  be  fined  for  the 
wilful  violation  of  an  injunction.  Franklin 
Union  No.  4  v.  People,  4:  looi,  77  N.  E.  176, 
220  111.  355.  (Annotated) 

117.  A  corporation  is  not  liable  for  legal 
services  rendered  in  preparing  a  memoran- 
dum and  articles  of  incorporation  therefor. 


698 


CORPORATIONS,  IV.  g,  1. 


on  the  instructions  of  the  promoters.     Re 

English  &  Colonial  Produce  Co.  4  B.  R.  C. 

748,    [1906]    2   Ch.   435.     Also  Reported   in 

75  L.  J.  Ch.  N.  S.  831,  95  L.  T.  N.  S.  85, 

22  Times  L.  R.  669,  13  Manson,  337. 

( Annotated ) 

Tor  tort. 

Liability    for    conspiracy,    see    Conspiracy. 

Action  to  compel  directors  to  reimburse  cor- 
poration for  damages  paid  because  of 
their  torts,  see  Judgment,  260. 

Sufficiency  of  description  of  agent  in  tort 
action  against  corporation,  see  Plead- 
ing, 177. 

Venue  of  action  for  libel,  see  Venue,  15. 

Illegal  combinations  by,  in  restraint  of 
trade,  commerce,  and  competition,  see 
Monopoly  and  Combinations,  II. 

See  also  infra,  279. 

118.  A  private  corporation,  like  an  indi- 
vidual, is  liable  for  the  acts  of  its  agent,  in 
instituting  a  malicious  prosecution,  if  the 
same  were  done  while  acting  within  the 
scope  of  his  authority.  Chicago,  R.  I.  &  P. 
R.  Co.  V.  Holliday,  39:  205,  12C  Pac.  927, 
30   Okla.    680. 

119.  A  corporation  is  liable  for  malicious 
acts  of  its  president  and  general  mana- 
ger in  permitting  snow  to  slide  from  a  roof 
of  its  building  onto  neighboring  property 
to  its  injury.  Bishop  v.  Readsboro  Chair 
Mfg.  Co.  36:  1171,  81  Atl.  454,  85  Vt.  141. 

120.  A  corporation  is  liable  for  a  libel  in 
a  letter  written  by  a  manager  of  its  branch 
office  upon  paper  bearing  its  letter-head, 
for  the  purpose  of  obtaining  a  contract  for 
work  for  his  employer,  which  was  also 
sought  by  a  business  rival,  although  the 
libelous  statement  was  not  known  or  assent- 
ed to  by  it.  Pennsylvania  Iron  Works  Co. 
V.  Henry  Voght  Mach.  Co.  8:  1023,  96  S.  W. 
551,  29  Ky.  L.  Rep.  861. 

121.  A  corporation  is  liable  for  slander 
spoken  by  its  agent  while  acting  within  the 
scope  of  his  employment  and  in  the  actual 
performance  of  the  duties  of  the  corporation 
touching  the  matter  in  question.  Rivers  v. 
Yazoo  &  M.  Valley  R.  Co.  9:  931,  43  So. 
471,  90  Miss.  196.  (Annotated) 

122.  A  corporation  will  be  held  to  have 
ratified  the  act  of  its  agent  in  publi&liing  a 
libel  in  connection  with  its  business,  if, 
upon  gaining  knowledge  of  it,  it  fails  to 
repudiate  it.  Pennsylvania  Iron  Works  Co. 
V.  Henrv  Voght  Mach.  Co.  8:  1023,  96  S.  W. 
551,  139  Ky.  497. 

123.  A  corporation  organized  for  the  pur- 
pose of  constructing,  owning,  and  oper- 
ating a  street  railway  cannot  be  directly 
liable  for  damages  for  malpractice  of  medi- 
cine or  surgery,  although  it  attempts  to 
furnish  medical  services  to  persons  injured 
in  its  business.  Youngstown  Park  &  F.  S. 
R.  Co.  V.  Kessler,  36:  50,  95  N.  E.  509,  84 
Ohio  St.  74.  (Annotated) 
Criminal  lialbility. 

Sufficiency  of  indictment  to  sustain  convic- 
ti*n  of,  for  neglect  of  imposed  duty,  see 
Indictment,  etc.,  113. 

Liability  for  monopoly  or  illegal  combina- 
tions, see  Monopoly  and  Combina- 
tions, II. 

Digest  1-52  L.R.A.(N.S.) 


124.  A  corporation  may  be  criminally  re- 
sponsible for  misfeasance  as  well  as  for  non- 
feasance. Union  Colliery  Co.  v.  Reg.  2  B. 
R.  C.  222,  31  Can.  S.  C.  81.       (Annotated) 

125.  A  railway  company  may  be  indicted 
for  a  failure  to  perform  its  duty  to  tho  pub- 
lic, in  allowing  one  of  its  bridi;es  to  become 
unsafe,  so  that  it  gave  way  beneath  a  train, 
causing  the  death  of  persons  thereon,  under 
Canadian  Criminal  Code,  §  213,  which  pro- 
vides that  everyone  having  in  his  charge  or 
under  his  control,  or  who  erects,  makes  or 
maintains,  anything  whatever  which,  in  the 
absence  of  precaution  or  care,  may  endanger 
human  life,  is  under  a  legal  dutj'  to  avoid 
such  danger,  and  is  criminally  responsible 
for  tlie  consequences  of  oniittiiig  without 
lawful  excuse  to  perform  such  duty.  Union 
Colliery  Co.  v.  Reg.  2  B.  R.  C.  222,  31  Can. 
S.  C.  81. 

120.  A  railroad  company  for  which  a  re- 
ceiver has  been  appointed  is  not  liable  to 
indictment  for  obstructing  a  public  road 
crossing.  State  v.  Norfolk  &  S.  R.  Co. 
26:  710,  67  S.  E.  42,  152  N.  C.  785. 

( Annotated ) 

127.  A  corporation  may  be  convicted  of 
obtaining  property  by  false  pretenses,  al- 
though it  involves  intent  to  defraud,  where 
by  statute  the  word  "person"  includes 
bodies  corporate.  State  v.  Ice  &  Fuel  Co. 
52:  216,  81   S.  E.  737,  166  N.  C.  366. 

128.  A  corporation  is  responsible  for  the 
acts  of  a  local  agent  who  is  directed  by  its 
general  agent  to  proceed  to  a  certain  place 
and  hold  his  trade  and  secure  the  counter- 
mand of  orders  given  to  a  rival,  in  securing 
for  a  consideration  the  countermanding  of 
such  orders.  Standard  Oil  Co.  v.  State,  10: 
1015,  100  S.  W.  705,  117  Tenn.  618. 

129.  A  corporation  is  not  indictable  for 
involuntary  manslaughter.  Com.  v.  Illinois 
C.  R.  Co.  45:  344,  153  S.  W.  459,  152  Ky. 
320.  (Annotated) 

130.  A  corporation  cannot  be  convicted  of 
homicide  under  a  statute  defining  that  crime 
as  the  killing  of  one  human  being  by  the 
act,  procurement,  or  omission  of  another. 
People  V.  Rochester  R.  &  Light  Co.  21:  998, 
88  N.  E.  22,  195  N.  Y.  102.  (Annotated) 

g.  Officers;  meetings. 

1.  In  general;  qualifications, 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

Purchase  by  corporation  of  private  business 

of,  see  supra,  76. 
Power  of  corporation  to  insure  life  of,  see 

supra,  89. 
Liability   of   corporation   for   torts   of,    see 

supra,  118-123. 
Acceptance  of  stock  from  officer  in  payment 

of  his  individual   debt,  see  infra,   232, 

233,  248. 
Meeting  of  corporate  stockholders,  see  infra, 

V.  g. 


CORPORATIONS,  IV.  g,  2. 


699 


Placing  corporate  stock  in  the  name  of  an- 
other on  books  of  cori^oration  to  qualify 
him  as  a  director,  see  Attachment, 
19,  20. 

Preference  by  insolvent  corporation  to  offi- 
cer, see  Bankruptcy,  78,  79. 

As  to  officers  of  banks,  see  Banks,  III. 

Who  may  indorse  note  payable  to  the  order 
of  the  directors  of  a  corporation,  see 
Bills  and  Notes,  11. 

Bond  for  fidelity  of  officer,  see  Bonds,  40. 

Sufficiency  of  affidavit  of  consideration  at- 
tached to  chattel  mortgage  when  made 
by  officer,  see  Chattel  Mortgages,  5. 

Agreement  of  shareholders  that  certain  di- 
rectors shall  act  as  dummies  only,  see 
Contracts,  503. 

Breach  of  contract  to  employ  one  as  secre- 
tary and  treasurer  of  corporation,  see 
Contracts,  697. 

Compelling  production  of  corporate  books 
as  infringing  privilege  of  officers 
against  self-crimination,  see  Criminal 
Law,  110-112. 

Estoppel  of  officer  negotiating  sale  of  real 
estate  of  corporation  to  claim  title  to 
property,  see  Estoppel,  172. 

Oral  evidence  to  show  incumbency  of  office 
in  private  corporation  by  witness,  see 
Evidence,  701. 

Imputing  knowledge  of,  to  corporation,  see 
Injunction,  117;  Notice,  17,  18,  SI-' 
,33,  36-43,  48-63. 

Parol  evidence  to  show  formal  action  by  di- 
rectors upon  proposition,  see  Evidence, 
703. 

Of  insurance  company,  see  IxVSUeance,  I.  d. 

Libel  of  officer,  see  Libel  and  Slander,  105. 

Liability  of  corporation  for  acts  of  agents, 
see  Master  and  Servant,  953. 

Quo  warranto  to  test  claim  to  office  of 
officer  in  private  corporation,  see  Quo 
Warranto,  6,  7,  17. 

Appointment  of  receiver  because  of  mis- 
management of  property  by,  see  Receiv- 
ers, 14. 

Proceeding  by  state  to  relieve  corporation 
of  recreant  officers,  see  State,  12. 

Effect  of  death  on  competency  of,  as  wit- 
ness, see  Witnesses.  57,  58. 

Service  of  process  on  officer  or  agent,  see 
Writ  and  Process,  II.  b. 

Exemption  of  officer  from  service  of  process, 
see  Writ  and  Process,  77. 

See  also  supra,  76,  96;  infra,  253,  257,  258. 

131.  A  director  to  a  corporation  cannot  be 
refused  access  to  the  corporate  books  by 
other  directors  because  he  neglected  his  du- 
ties as  an  officer  of  the  company,  interfered 
with  its  management,  and  was  promoting  a 
competing  concern.  Machen  v.  Machen  & 
Mayer  Electrical  Mfg.  Co.  42:  1079,  85  Atl. 
lOO",  237  Pa.  212. 

Election  of  officers. 

See  also  supra,  41;  infra,  376. 

132.  Statutory  authority  to  the  directors 
of  an  insurance  company  to  confer  upon 
policy  holders  the  right  to  vote  for  directors 
does  not  include  power  to  give  them  tlie 
right  to  vote  for  a  certain  number  of  di- 
rectors to  the  exclusion  of  the  stockholders. 
Digest  1-52  I..R.A.(N.S.) 


Lord  V.  Equitable  Life  Assur.  Soc.  22:  420, 

87  N.  E.  443,  194  N.  Y.  212. 

Hemoval. 

133.  A  secretary  and  treasurer  of  a  cor- 
poration appointed  by  the  board  of  direct- 
ors may  be  removed  at  the  pleasure  of  the 
board,  although  the  statute  provides  that 
the  corporation  shall  be  managed  by  a 
president,  a  board  of  directors,  a  secretary, 
a  treasurer,  and  such  other  officers  as  the 
corporation  autliorizes.  Brindley  v.  W^alker, 
23:  1293,   70  Atl.   794,  221   Pa.   287. 

(Annotated) 

2.  Powers. 

(See   also   same   heading   in  Digest   L.R.A. 

1-10.) 

Power  to  deal  in  own  interests,  see  infra, 

IV.  g,  4. 

Of  bank  officers,  see  Banks,  III.  b. 

Bona  fide  purchasers  of  notes  from,  see 
Bills  and  Notes,  185. 

Of  loan  association,  see  Building  and  Loan 
Associations,  2,  3. 

Public  policy  as  affecting  contraxit  by  corpo- 
rate officer,  see  Contbacts,  457,  458, 
507. 

Agreement  of  shareholders  that  certain  di- 
rectors shall  act  as  dummies  only,  see 
Contracts,  503. 

Who  bound  by  act  of  stockholders  attempt- 
ing to  ratify  fraud  of  directors,  see 
Estoppel,  258. 

Estoppel  to  deny  that  persons  acting  for 
corporations  were  authorized  to  do  so, 
see  Estoppel,  234, 

Presumption  and  burden  of  proof  as  to  au- 
thority of  corporate  agents,  see  Evi- 
dence, 181-186,  315. 

Admissibility  of  declarations  by  agents  and 
officers,  see  Evidence,  1418-1432. 

Of  insurance  agent,  see  Insurance,  I.   d; 

V.  b,  3. 

Of  officers  of  joint  stock  company,  see  Joint 

Stock  Company,  7. 
Imputing  officer's   or  agent's   knowledge   to 

corporations,    see   Notice,    17,    18,   31- 

33,  36-43,  48-63. 
Right  of  officer  to  verify  pleading  by,   see 

Pleading,  18. 
Implied  power  of  agent  of,  to  borrow  money, 

see  Principal  and  Agent,  42. 
Power  of  agent  of,   to  receive  property  in 

satisfaction  of  note,  see  Principal  and 

Agent,  54. 
See  also  supra,  IV.  c;  110;  infra,  155,  156, 

262. 

134.  The  general  passenger  agent  and  gen- 
eral passenger  traffic  manager  of  a  railroad 
system,  who  contract  for  the  advertising, 
may  be  found  to  have  power  to  agree  to 
pay  money  for  the  publication  of  a  guide- 
book to  make  known  and  popularize  the 
fishing  and  hunting  grounds  along  the  line 
of  the  road,  so  as  to  bind  the  company,  al- 
tliough  they  had  in  fact  been  instructed  to 
make  no  contract  involving  such  expendi- 
tures without  authority  of  an  executive 
officer  of  the  company,  if  the  other  contract- 


700 


CORPORATIONS,  IV.  g,  2. 


ing  party  had  no  notice  of  such  instructioa 

rarrot  v.  Mexican  C.  R.  Co.  34:  261,  93  N. 

E.  590,  207  Mass.   184. 

Of  president. 

Ratification  by  corporation,  see  supra,  104, 

105,  107;  Eminent  Domain,  130. 
Of  bank  president,  see  Banks,  20,  21. 
To  execute  note  of  corporation  for  his  own 

debt,  see  Bills  and  Notes,  185. 
Evidence  on  question  of,  see  Evidence,  1193, 

2226. 
Binding  effect  of   president's  unauthorized 

act  in  borrowing  money,  see  Evidence, 

2297. 
Notice  to  president   as  notice  to   corpora- 
tion, see  Injunction,  117;  Notice,  17, 

43,  56,  57. 
To  employ  physician  for  injured  employee, 

see  Master  and  Servant,  10. 
See  also  supra,  58;  infra,  154,  155. 

135.  The  publication  in  a  newspaper  of  a 
notice  of  the  resignation  of  the  president 
of  a  corporation  is  not  a  sufficient  notice 
of  the  termination  of  the  agency  of  such 
president,  to  persons  who  had  previously 
dealt  with  the  corporation  through  the 
president  so  as  to  preclude  a  recovery  on  an 
indorsement  of  a  note  subsequently  made 
by  the  president  on  behalf  of  the  corpora- 
tion, in  the  absence  of  proof  that  such 
person  saw  the  advertisement  or  had  other- 
wise obtained  actual  notice  of  the  resigna- 
tion. Union  Bank  &  T.  Co.  v.  Long  Pole 
Lumber  Co.  41:  663,  74  S.  E.  674,  70  W.  Va. 
558.  ( Annotated ) 

136.  A  corporation  whose  president  has 
accepted  from  a  bank  a  note  indorsed  by 
such  corporation,  in  renewal  of  which  a 
new  note  is  made  and  indorsed  to  the  bank 
by  such  president,  which  act  is  claimed  to 
have  been  unauthorized,  having  obtained 
the  benefit  of  a  release  from  its  liability 
on  the  surrendered  note,  cannot  deny  the 
authority  of  its  president  to  indorse  the 
renewal  note,  without  first  having  restored 
to  the  bank  the  old  notes  or  paid  the  value 
thereof.  Union  Bank  &  T.  Co.  v.  Long  Pole 
Lumber  Co.  41:  663,  74  S.  E.  674,  70  W. 
Va.  558. 

137.  Where  the  president  of  a  trading 
corporation,  who  apparently  has  the  gen- 
eral management  and  control  of  its  busi- 
ness and  who  has  indorsed  notes  and  paid 
the  proceeds  thereof  to  the  corporation  by 
his  check  as  president,  and  has  effected 
other  transactions  such  as  ordinarily  fall 
within  the  province  of  the  president  of  such 
a  corporation,  with  the  approval  or  ac- 
quiescence of  the  directors,  indorsed  a  note 
to  a  bank  which  had  knowledge  of  his 
transactions  for  the  company,  such  indorse- 
ment is  within  his  apparent  authority,  and 
binds  the  corporation  in  favor  of  the  bank 
which  is  relying  in  good  faith  upon  such 
authority ;  and  the  fact  that  the  notes  and 
checks  oif  the  company  were  generally  signed 
by  the  treasurer  and  countersigned  by  the 
president  is  of  no  importance  when  it  is 
not  shown  that  indorsements  were  made 
otherwise  than  the  president  made  them  in 
this  instance.  Union  Bank  &  T.  Co.  v. 
Digest   1-52  L.R.A.(N.S.) 


Long  Pole  Lumber  Co.  41 :  663,  74  S.  E.  674, 
70  W.  Va.  558. 

138.  Execution  by  the  president  of  a  cor- 
poration, on  its  behalf  and  for  its  hciiofit.  of 
a  guaranty  which  the  corporation  has  power 
to  make,  is  sufficient  to  establish  the  liabil- 
ity of  the  corporation  in  the  absence  of  any- 
thing to  show  that  he  did  not  act  by  au- 
thority of  the  corporation,  notwithstanding 
the  corporation,  by  verified  plea,  puts  in 
issue  the  execution  of  the  instrument. 
George  E.  Lloyd  &  Co.  v.  Matthews,  7:  376,. 
79  N.   E.   172,  223  111.   477.        (Annotated) 

139.  If  the  power  to  exercise  the  right  of 
eminent  domain  and  to  locate  the  line  and 
terminus  of  a  railroad  company  incorpo- 
rated under  the  general  law  and  authorized 
to  construct  its  road  from  a  point  near  the 
center  of  a  city  to  a  point  without,  can  be 
conferred  by  the  board  of  directors  on  the 
president  of  the  company,  yet  he  cannot 
under  a  general  authority  to  manage  the 
business  of  the  company,  subject  to  the  ap- 
proval and  direction  of  the  board  or  its 
chairman  or  committee,  conferred  by  law  on 
the  president,  lawfully  fix  such  route  and 
terminus  and  proceed  with  the  condemna- 
tion proceedings  before  such  approval. 
Bridwell  v.  Gate  City  Terminal  Co.  10:  909, 
56  S    E.  624,  127  Ga.  520. 

140.  The  president  of  a  corporation  can- 
not, without  authority  of  tlie  directors, 
purchase  for  it  its  own  stock,  at  a  sale  con- 
ducted for  the  purpose  of  enforcing  pay- 
ment of  the  unpaid  balance  of  the  subscrip- 
tion. Tiger  v.  Rogers  Cotton  Cleaner  & 
Gin  Co.  30:  694,  130  S.  W.  585,  96  Ark.  1. 
Of  manager;  superintendent. 
Ratification,  see  supra,  106. 

See  also  supra,  134. 

141.  The  manager  of  sales  of  a  manufac- 
turing corporation  has  power  to  direct  and 
contract  in  regard  to  the  usual  running 
business  of  selling  its  wares;  and  persons 
contracting  with  such  corporation  are  not 
bound  to  know  of  a  by-law  thereof,  limiting 
the  power  of  such  manager  to  make  the 
customarv  contracts.  Stromberg-Carlson 
Teleph.  Mfg.  Co.  v.  Barber,  18:  680,  116  N. 
W.  157,  81  Neb.  517. 

142.  A  manager  of  a  corporation  has  no 
implied  autliority  to  sign  its  name  ns  an 
accommodation  indorser,  surety,  or  guaran- 
ty. Haupt  V.  Vint,  34:  518,  70  S.  E.  702,  68 
W.  Va.  657. 

143.  Authority  of  the  manager  of  a  cor- 
poration to  borrow  money  for  it  will  be  im- 
plied where  the  stockholders  and  directors 
have  acquiesced  in  such  acts  on  his  part  for 
a  long  series  of  years.  Cook  v.  American 
Tubing  &  Webbing  Co.  9:  193,  65  Atl.  641,  28 
R.  L  41. 

144.  The  secretary-treasurer  of  a  corpora- 
tion, who  is  also  its  manager,  has  no  im- 
plied authority  to  contract  for  the  services 
of  an  employee  for  a  term  extending  be- 
yond not  only  the  term  of  his  own  office, 
but  that  of  the  board  of  directors,  in  the 
absence  of  custom  or  his  being  held  out 
by  the  directors  as  having  such  authority. 
Laird  v.  Michigan  lyiibricator  Co.  17:  177, 
116  N.  W.  534,  153  Mich.  52.      (Annotated) 


CORPORATIONS,  IV.  g,  3,  4. 


701 


145.  Whether  or  not  an  assistant  general 
manager  of  a  manufacturing  corporation  in 
charge  of  its  pkint  has  authority  to  com- 
promise the  claim  of  an  injured  employee 
is  immateriaJ,  where  the  corporation  rati- 
fies the  act  and  makes  payments  in  accord- 
ance with  the  terms  thereof.  Heath  v.  Pot- 
latch  Lumber  Co.  27:  707,  108  Pac.  343,  18 
Idaho,  42. 

146.  Where,  in  an  action  against  a  water 
company  by  a  patron  for  breach  of  con- 
tract to  maintain  a  certain  water  pressure, 
by  reason  of  which  breach  his  building  was 
destroyed  by  fire,  it  appears  that  the  com- 
pany contracted  to  supply  water  for  fire 
purposes  only  at  special  rates,  and  that 
the  contract  sued  upon  was  made  at  the 
regular  rate,  and  with  a  superintendent  who 
made  arrangements  with  the  patrons  for 
water  supply  to  buildings  owned  by  them, 
for  ordinary  household  and  mill^  purposes, 
at  regular  scheduled  rates,  but  who  had 
no  express  authority  to  make  such  a  con- 
tract as  that  sued  upon,  that  the  other  ofl5- 
cers  and  directors  never  knew  of  it,  nor 
did  the  company's  books  contain  either 
that  or  any  other  contract  of  a  similar 
character,— such  company  is  not  liable  on 
the  contract,  since  so  to  contract  was  be- 
yond the  authority  of  the  superintendent. 
Hall  V.  Passaic  Water  Co.  (N.  J.  Err.  & 
App.)   43:  750,  85  Atl.  349,  83  N.  J.  L.  771. 

147.  The  superintendent  of  a  water  com- 
pany which  contracted  to  supply  water  for 
fire  purposes  only  at  special  rates,  who 
had  authority  to  make  arrangements  with 
the  patrons  for  the  supply  of  water  to  build- 
ings owned  by  them,  for  ordinary  house- 
hold and  mill  purposes  at  scheduled  rates, 
has  no  implied  authority  to  make  a  con- 
tract at  the  regular  rate  to  furnish  water 
at  a  certain  pressure  for  fire  purposes. 
Hall  V.  Passaic  Water  Co,  (N.  J.  Err.  & 
App.)   43:  750,  85  Atl.  349,  83  N.  J.  L.  771. 

148.  A  corporation  cannot  avoid  liability 
upon  a  contract  signed  by  its  superintend- 
ent, who  had  authority  to  employ  men,  en- 
gaging a  person  to  do  a  particular  part  of 
the  work  required  by  the  corporation  for  a 
term  of  one  year,  because  his  authority 
was  limited  to  employing  help  orally  from 
day  to  day,  since  the  other  contracting 
party  had  a  right  to  rely  upon  hi?  apparent 
possession  of  the  authority  which  he  as- 
sumed to  exercise.  Slocum  v.  Seattle  Taxi- 
cab  Co.  39:  435,  121  Pac.  67,  67  Wash.  220. 

149.  One  contracting  to  furnish  menu 
cards  for  use  in  the  dining  cars  of  a  rail- 
road company  may  rely  upon  the  assump- 
tion by  the  superintendent  of  the  dining 
car  department,  of  authority  to  enter  into 
the  contract,  and  the  corporation  will  be 
bound  by  a  contract  signed  by  such  superin- 
te.ndent,  although  he  is  not  shown  to  have 
had  authority  to  make  it  as  matter  of  fact. 
Brace  v.  Northern  P.  R.  Co.  38:  1135,  115 
Pac.  841,  63  Wash.  417.  (Annotated) 
Digest   1-52  I^R.A.(N.S.) 


3.  Compensation. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

See  also  infra,  262. 

150.  The  court  cannot  refuse  to  find  that 
salary  voted  direetors  of  a  corporation  was 
fair  and  reasonable  compensation  for  the 
services  rendered,  on  the  ground  that  if 
they  did  not  choose  to  perform  the  services 
they  might  hire  others  to  do  so.  Russell 
v.  Henry  C.  Patterson  Co.  36:  igg,  81  Atl. 
136,  232   Pa.    113. 

After   close   of   term    of   service. 

151.  The  secretary  of  a  corporation  can- 
not recover  from  its  compensation  for  the 
unexpired  time  of  his  employment,  which  he 
leaves  because  of  the  wrongful  act  of  its 
manager  in  fo^rcing  him  to  do  so,  which  the 
directors  did  not  authorize  or  ratify.  Rob- 
erts V.  E.  H.  Stanton  Co.  21:  303,  94  Pac. 
647,  49  Wash.  23. 

152.  An  executive  oflBcer  of  a  corporation 
is  not  entitled  to  an  allowance  from  its  as- 
sets for  salary  accruing  under  his  contract 
for  services,  after  the  appointment  of  a  re- 
ceiver, in  an  involuntary  proceeding  to  wind 
up  its  affairs  as  an  insolvent.  Williamson 
County  Bkg.  &  T.  Co.  v.  Roberts-Buford 
Dry  Goods  Co.  9:  644,  101  S.  W.  421,  118 
Tenn.  340. 

4.  Fiduciary  relation. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Multifariousness  of  bill  by  stockholder  to 
recover  against  directors  f«r  fraudulent 
management,  see  Action  or  Suit,  125. 

Public  policy  as  affecting  contract  by  corpo- 
rate officer,  see  Contracts,  457,  458, 
507. 

Contract  by  managing  officer  of  railroad  to 
locate  station  at  certain  place  in  con- 
sideration of  personal  benefit  to  him, 
see  Pleading,  654. 

WS.  A  director  and  manager  of  a  corpo- 
ration is  a  trustee  for  stockholders.  Black 
v.  Simpson,  46:  137,  77  S.  E.  1023,  94  S. 
C.  312. 

154.  The  mere  knowledge  on  the  part  of 
stockholders  of  a  corporation  that  a  bank 
holds  its  note  does  not  effect  a  ratification. 
where  the  note  was  executed  by  the  presi- 
dent without  authority,  in  satisfaction  of 
his  individual  debt.  Kenyon  Realty  Co.  v. 
National  Deposit  Bank,  31:  169,  130  S.  W. 
965,   140  Ky.    133. 

155.  The  consent  by  a  majority  of  the  di- 
rectors of  a  corporation  to  the  execution 
by  its  president  of  a  corporate  note  in 
satisfaction  of  his  individual  debt  will  not 
bind  the  corporation  if  they  were  equally 
bound  with  him  for  the  debt,  in  which  the 
company  was  not  interested.  Kenyon  Real- 
ty Co.  V.  National  Deposit  Bank,  31 :  ifig, 
130   S.  W.  9fi5,   140  Ky.   133. 

156.  Direetors  of  a  corporation  who  have 


1 02 


CORPORATIONS,  IV.  g,  5. 


no  power  to  consent  to  the  use  of  its  funds 
for  the  satisfaction  of  their  individual  debt 
have  no  power  to  ratify  such  use  after  it 
has  been  attempted  by  the  negotiation  of  a 
corporation  note  by  its  presicient.  Kenyon 
Realty  Co.  v.  National  Deposit  Bank, 
31:  169,  130  S.  W.  965,  140  Ky.  133. 
Officer  purchasing  stock  from  sHare- 

holder. 
Conditions  precedent  to  suit  to  recover  stock 
fraudulently  procured,  see  Action  or 
Suit,  25. 
Joinder  of  parties  plaintiflf  in  action  to  com- 
pel accounting  for  profits,  see  Parties, 
145. 

157.  The  directors  of  a  company  are  not 
trustees  for  individual  shareholders,  and 
may  purchase  their  shares  without  disclos- 
ing pending  negotiations  for  the  sale  of  the 
company's  undertaking.  Percival  v.  Wright, 
4  B.  R.  C.  786,  [1902]  2  Ch.  421.  Also  Re- 
ported in  71  L.  J.  Ch.  N.  S.  846,  51  Week. 
Rep.  31,  18  Times  L,  R.  687,  9  Manson,  443. 

(Annotated) 
Dealings    betntreen    corporations    tvith 
saite  officers. 

158.  Checks  drawn  by  the  treasurer  of  an 
elevator  company,  who,  as  such,  has 
power  to  draw  checks  in  its  name  to  pay 
its  obligations,  against  its  deposit  in  a  bank 
of  whicii  he  is  also  cashier,  in  the  bank's 
favor,  temporarily  to  cover  up  a  shortage 
in  its  funds  caused  by  a  misappropriation 
thereof  by  him,  which  checks  he  charges 
against  the  elevator  company  on  the  bank 
books  without  intention  to  transfer  funds 
from  one  corporation  to  the  other,  create 
no  liability  in  favor  of  the  bank  agaiaist 
the  elevator  company.  Emerado  Farmers' 
Elevator  Co.  v.  Farmers'  Bank,  29:  567, 
127  N.  W.  522,  20  N.  D.  270. 

S.  Liabilities. 

a.  To   stockholders  or  creditors. 

(1)   In  general. 

(See  also  same  heading  in  Digest  LJt.A. 
1-10.) 

Liability  of  promoters,  see  infra,  177-187. 

Action  by  corporate  stockholders  against, 
see  infra,  V.  e,  2. 

Officers  of  banks,  see  Banks,  III.  c;  240- 
242. 

As  directors  of  social  club,  see  Clubs,  7-9. 

Conflict  of  laws  as  to,  see  CoNFLicr  of 
Laws,  86,  87. 

Oral  promise  by  officer  to  pay  debt  of  corpo- 
ration, see  Contracts,  217,  228. 

Oral  contract  of  president  giving  the  obli- 
gations of  the  corporations  for  his  own 
debt,  to  pay  the  same,  see  Contracts, 
218. 

Of  insurance  company,  see  Insurance,  48- 
51. 

Action  to  compel  officers  to  reimburse  corpo- 
ration for  damages  paid  because  of 
their  torts,  see  Judgment,  260. 

Limitation  of  actions  in  suit  against,  see 
Limitation  of  Actions,  92,  154. 

Digest  1-52  llR.A.(r.S.) 


Officers  as  parties  defendant,  see  Parties, 
178. 

Liability  of  director  holding  qualificatioa 
shares  as  trustee,  to  account  for  re- 
muneration received  by  him,  see  Trusts, 
80. 

See  also  infra,  308. 

159.  One  is  personally  bound  by  a  con- 
tract reciting  that  I  (the  person),  treasurer 
of  a  certain  corporation,  do  hereby  agree, 
and  signed  with  his  name,  "Treas."  Gavaz- 
za  v.  Plummer,  42:  i,  101  Pac.  370,  53  Wash. 
14.  (Annotated) 

160.  The  president  of  a  corporation  is  not 
made  personally  liable  on  a  note  executed 
on  behalf  of  the  corporation,  by  signing  its 
name,  by  himself  president.  Pease  v.  Globe 
Realty  Co.  42:  6,  119  N.  W.  975,  141  Iowa, 
482.  (Annotated) 

161.  Directors  who,  without  notice  to  cred- 
itors, sell  the  entire  corporate  property, 
and  distrftute  the  purchase  money  among 
stockholders  without  making  any  provision 
for  the  payment  of  debts,  are  personally  lia- 
ble for  such  debts,  where  the  statute  gives 
a  right  of  action  against  them  for  viola- 
tion of  their  duty,  although  the  one  |)ur- 
chasing  the  property  agreed  to  assume  and 
pay  the  corporate  debts,  since  the  attempt 
to  transfer  the  assets  without  notice  to 
creditors,  affording  them  an  opportunity  to 
present  and  collect  their  claims,  is  a  vio- 
lation of  the  duties  of  the  directors,  with- 
in the  meaning  of  the  statute.  Darcy  v. 
Brooklyn  &  N.  Y.  Ferry  Co.  26:  267J  89 
N.  E.  461,  196  N.  Y.  99.  (Annotated) 

162.  The  officers  and  trustees  of  a  corpo- 
ration are  not  liable  to  its  creditors  for 
permitting  it  to  begin  business  before  all 
the  capital  stock  is  subscribed,  unless  made 
so  by  statute  or  a  corporate  existence  is 
not  effected,  although  a  statute  provides 
that  no  corporation  shall  commence  busi- 
ness until  the  whole  amount  of  its  capital 
stock  has  been  subscribed.  American  Radi- 
ator Co.  V.  Kinnear,  35:  453,  105  Pac.  630, 
56  Wash.  210.  '  (Annotated) 

163.  The  treasurer  of  a  corporation  can- 
not be  held  personally  liable  to  it  for  satis- 
fying an  execution  against  it  because  of  a 
libel  published  by  its  directors,  in  which  he 
had  no  part.  Hill  v.  Murphy,  40:  1102, 
98  N.  E.  781,  212  Mass.  1. 

164.  Directors  of  a  corporation  who  ma- 
liciously, and  to  gratify  their  own  personal 
ends,  circulate  a  libel  for  which,  although 
it  is  ultra  virves,  the  corporation  is  held  lia- 
ble, are  bound  to  reimburse  the  corporation 
for  the  loss  thereby  caused  to  it.  Hill  v. 
Murphy,  40:  1102,  98  N.  E.  781,  212  Mass. 
1.  (Annotated) 
For  dividends  paid. 

165.  Stockholders  of  an  insolvent  bank 
who  have  received  dividends  illegally  de- 
clared by  the  directors  cannot  hold  them 
personally  liable  for  the  amount,  on  the 
theory  of  a  misfeasance  in  offi'^e.  Emerson 
V.  Gaither,  8:  738,  64  Atl.  26,  103  Md.  564. 


CORPORATIONS,  IV.  g,  5—6. 


703 


On  jnegotiable  paper. 

Extension  of  time  for  payment  of  corporate 
note  as  discharging  sureties,  see  Pbinci- 
PAL  AND  Surety,  52. 

166.  The  president  of  a  corporation  who, 
with  knowledge  that  a  bank  will  not  renew 
a  note  of  the  corporation  withoMt  his  guar- 
anty, telegraphs  a  request  for  renewal  with 
the  assurance  that  he  will  arrange  things 
satisfactorily  upon  his  return,  assumes  the 
obligation  of  guarantor  on  the  note  accept- 
ed in  accordance  with  such  request.  Ex- 
change Nat.  Bank  v.  Pantagee,  46:  484,  133 
Pac.  1025,  74  Wash.  481.  (Annotated) 

(2)   For  failure  to  report. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Enforcement  by  courts  of  other  state  of 
statute  as  to  liability  for  failure  to 
file  report,  see  Conflict  of  Laws,  86, 
87. 

167.  The  question  of  the  liability  of  of- 
ficers who  fail  to  lile  reports  as  required 
by  statute,  to  a  surety  on  corporate  paper 
which  is  renewed  from  time  to  time,  is  to 
be  determined  by  the  condition  when  the 
paper  was  first  executed,  since  that  is  the 
time  the  obligation  to  him  accrued,  so 
that  if  they  were  not  in  default  at  that 
time,  they  are  not  liable  to  him,  although 
they  are  in  default  at  subsequent  periods 
when  the  paper  is  renewed  and  when  it  is 
paid.  Griffin  v.  Long,  35:  855,  131  S.  W. 
672,   96   Ark.   268.  (Annotated) 

(3)   For  excess  of  indebtedness. 

(See  same  heading  i/n  Digest  L.R.A.  1-70.) 

b.  For  torts  or  nuisances. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Contempt  in  refusing  to  turn  over  corporate 
books  to  receiver,  see  Appeal  and  Ek- 
BOB,  103;  Contempt,  14,  36,  37. 

Liability  of  bank  directors,  see  Banks,  46- 
48. 

Liability  of  officer  for  inducing  discharge 
of  employee  of  corporation,  see  Case, 
41. 

Action  to  compel  officers  to  reimburse  cor- 
poration for  damages  paid  because  of 
their  torts,  see  Judgment,  260. 

See  also  supra,  163,  164;  infra,  279,  331, 
332. 

168.  A  managing  officer  of  a  corporation 
which  is  engaged  in  tlie  manufacture  for 
general  consumption  of  an  article  dangerous 
to  use  is  personally  liable  for  injury  to  a 
consumer  by  its  use,  if  he  knows  of  its 
dangerous  character  and  actively  promotes 
its  manufacture  and  sale.  Wines  v.  Crosby 
&  Co.  39:  901,  135  N.  W.  96,  169  Mich.  210. 

( Annotated ) 
Digest  1-52  L.R.A.(N.S.) 


169.  A  person  who,  upon  receiving  a  se- 
curity for  collection  and  reinvestment,  uses 
the  money  for  bis  own  purposes,  and  de- 
livers to  his  customer  a  worthless  obliga- 
tion of  a  corporation  of  which  he  is 
president,  and  which  he  organized  for  the 
transaction  of  his  personal  business,  is  per- 
sonally liable  to  return  the  amount  so  re- 
ceived. Donovan  v.  Purtell,  i:  176,  75  N. 
E.  334,  216  111.  629.  (Annotated) 
Libel. 

Privileged  communications  by  officers,  see 
Libel  and  Slandeb,  118,  119. 

170.  The  president  of  a  corporation  which 
publishes  a  newspaper  is  not,  merely  be- 
cause of  his  official  position,  liable  for  a 
libel  published  in  the  paper  without  his 
knowledge  or  authority.  Folwell  v.  Miller, 
lo:  332,  145  Fed.  495,  75  C.  C.  A.  489. 

(Annotated) 

Frand. 

Conditions  precedent  to  suit  to  recover 
stock  fraudulently  procured,  see  Ac- 
tion OK  Suit,  25. 

For  fraud  in  inducing  purchase  of  stock, 
see  Fbaud  and  Deceit,  37. 

171.  Officers  of  a  corporation  who  issued  a 
fraudulent  prospectus  to  sell  treasury  stock 
are  not  liable  in  damages  for  the  fraud  to 
one  who,  in  reliance  upon  it,  purchases  from 
an  individual  stock  which  is  owned  by  him, 
and  in  which  the  corporation  has  no  inter- 
est. Cheney  v.  Dickinson,  28:  359,  172  Fed. 
109,  96  C.  C.  A.  314.  (Annotated) 

6.  Meetings. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

As  to  stockholders'  meeting,  see  infra,  V.  g. 
Libel  in  publication  of  report  of  meeting  of 

private    corporation,     see    Libel    and 

Slandeb,  100. 
See  also  infra,  316. 

172.  L6s8  than  a  quorum  of  a  corporation 
has  no  power  to  adjourn  a  regularly  called 
meeting  to  another  date,  so  as  to  make 
transactions  at  a  meeting  on  such  date 
valid.  Cheney  v.  Canfield,  32:  16,  111  Pac. 
92,  158  Cal.  342. 

173.  A  statute  providing  that  whenever 
any  act  of  a  secular  nature  is  appointed  by 
law  or  contract  to  be  performed  on  a  par- 
ticular day  which  falls  on  a  holiday,  it 
may  be  performed  on  the  next  business  day, 
does  not  justify  the  holding  of  a  corpora- 
tion meeting  on  such  succeeding  day  when 
the  day  appointed  by  the  by-laws  falls  on  a 
holiday,  and  no  provision  is  made  for  such 
contingencv  by  the  by-laws.  Cheney  v.  Can- 
field,  32:  16,  111  Pac.  92,  158  Cal.  342. 

174.  Under  a  statute  permitting  the  crea- 
tion of  bonded  indebtedness  of  a  corpora- 
tion upon  the  unanimous  vote  of  the  board 
of  directors,  the  unanimous  vote  of  a 
quorum  present  at  a  regular  meeting  of  the 
board  is  sufficient.  Tidewater  S.  R.  Co.  v. 
Jordan,  41:  130,  124  Pac.  716,  103  Cal.  105. 

(Annotated) 


(04 


CORPORATIONS,  IV.  h. 


h.  Promoters. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Review  on  appeal  of  findings  in  action 
against  promoters,  see  Appeal  and  Eb- 
BOB,  971. 

Implied  contract  to  pay  for  services  of  pro- 
moter, see  CoNTBACTS,  29. 

Necessity  that  subscriber  sign  written  prom- 
ise by  promoter  of  corporation  to  pay 
for  stock  taken  by  subscriber  upon  its 
surrender  within  certain  time,  see  CoN- 
TBACTS,   295. 

Interpretation  of  contract  by  promoter  to 
devote  his  whole  time  and  attention  to 
corporate  business,  see  Contbacts,  385. 

Validity  of  contract  between  corporation 
and  promoter,  see  Contbacts,  578. 

Knowledge  of  promoters  as  knowledge  of 
corporation,  see  Notice,  48. 

See  also  supra,  117. 

175.  Incorporators  who  refuse  to  subscribe 
to  stock  of  the  corporation  have  no  claim 
for  a  share  of  the  proceeds  against  coin- 
corporators  wIk)  have  so  subscribed  and,  aft 
er  the  organization  of  the  corporation,  sell 
their  stock  which  is  sufficient  to  give  con 
trol  of  the  enterprise,  so  that  the  effect  is 
to  transfer  the  franchise  to  the  purchasers 
by  a  part  only  of  the  incorporators.  Roose- 
velt V.  Hamblin,  i8:  748,  85  N.  E.  98.  199 
Mass.  127. 

176.  Knowledge  by  the  promoters  of  a 
corporation  of  a  contract  binding  the  corpo- 
ration to  pay  royalties  on  patents  does  not 
bind  subscribers  to  the  stock  having  no 
knowledge  of  it.  Fred  Macey  Co.  v.  Macey, 
5:  1036,  106  N.  W.  722,  143  Mich.  138. 
I^iability. 

As  stockholders,  see  infra,  317-323. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  85. 

Amount  recoverable  from  promoters  as  se- 
cret profits,  see  Damages,  328. 

Evidence  on  question  of  promoter's  fraud, 
see  Evidence,  1672-1675. 

Joint  liability  of  promoters,  see  Joint 
Creditors  and  Debtors,  8. 

Conclusiveness  against  one  of  two  promoters 
of  judgment  in  suit  against  executor 
of  other,  see  Judgment,  235. 

Laches  in  seeking  accounting  from  pro- 
moters for  illegal  profits,  see  Limita- 
tion OF  Actions,  77. 

Limitation  of  time  for  suit  against  pro- 
moters to  recover  illegal  profits,  see 
Limitation  of  Actions,  177. 

177.  Mere  failure  to  pay  in  the  full 
amount  of  the  capital  stock  subscribed  for 
the  formation  of  a  corporation  does  not  ren- 
der the  incorporators  liable  to  creditors  as 
partners.  Webb  v.  Rockefeller,  6:  872,  93  S. 
W.  778,  195  Mo.  57. 

178.  Incorporators  are  not  liable  to  cred- 
itors for  deeeit  in  falsely  making  the  state- 
ment required  by  statute,  that  their  articles 
of  association  shall  set  out  the  amount  of 
their  capital  stock,  and  that  it  is  actually 
paid  in,  since  such  r.t.itement  is  required  as 
Digest  1-52  I..R.A.(N.S.) 


a  condition  to  securing  the  right  to  do  J)usf- 
ness,  and  not  for  the  purpose  of  procuring 
credit.  Webb  v.  Rockefeller,  6:  872,  93  S. 
W.  778,  195  Mo.  57.  (Annotated) 

179.  That  the  procuring  of  a  corporate 
charter  without  full  payment  of  stock  sub- 
scriptions, as  required  by  statute,  is  a  fraud 
upon  the  state  does  not  render  it  a  fraud  of 
which  creditors  can  take  advantage,  so  as  to 
hold  the  incorporators  liable  as  partners. 
Webb  v.  Rockefeller,  6:  872,  93  S.  W.  778, 
195  Mo.  57. 

180.  Projectors  of  a  corporation  to  be 
organized,  who  inform  third  parties  that 
they  are  contracting  for  such  a  corporation, 
and  assure  them  that  the  obligations  in- 
curred will  become  the  obligations  of  the 
future  corporation,  may  escape  individual 
liability  to  such  third  parties  for  obli- 
gations thus  incurred  for  services  necessary 
to  effect  the  corporate  organization,  and  for 
machinery  and  other  property  necessary  to 
the  commencement  of  the  contemplated  busi- 
ness of  the  corporation,  where  the  corpora- 
tion is  subsequently  organized,  takes  the 
benefit  of  such  contracts,  and  assumes  the 
obligations.  Harrill  v.  Davis,  22:  1153,  168 
Fed.  187,  94  C.  C.  A.  47. 

181.  Promoters  of  a  scheme  to  consoli- 
date several  independent  corporations  into 
one  business  enterprise  cannot  escape  lia- 
bility for  fraudulent  representations  of  an 
agent  in  the  sale  of  the  stock  of  the  consol- 
idated corporation,  on  the  theory  that  they 
were  merely  directors  of  that  corporation, 
and  not  personally  liable  for  the  fraud  of 
an  agent  employed  to  market  its  stock,  if 
whatever  functions  they  assumed  were  in 
furtherance  of  a  common  enterprise  to  mar- 
ket the  securities  necessary  to  the  success 
of  the  enterprise.  Downey  v.  Finucane, 
40:  307,  98  N.   E.  391,  205  N.  Y.  251. 

182.  Promoters  of  a  corporation  cannot 
escape  liability  for  fraud  in  the  sale  of 
bonds  by  means  of  ambiguous  language  in 
the  prospectus,  on  the  ground  that  they  in- 
tended no  fraudulent  misstatement  of  facts, 
if  the  general  public  would  almost  inevita- 
bly infer  the  fraudulent  meaning  from  the 
language  used.  Downey  v.  Finucane,  40: 
307,  98  N.  E.  391,  205  N.  Y.  251. 

183.  Incorporators  of  a  trust  company, 
who  permit  a  portion  of  their  number  to 
divert  funds  subscribed  for  the  enterprise 
to  an  unauthorized  purpose,  are  guilty  of 
such  negligence  and  breach  of  trust  as  to 
compel  them  to  respond  to  subscribers  who 
thereby  suffer  loss.  Miller  v.  Denman,  16: 
348,  95  Pac.  67,  49  Wash.  217. 

184.  The  incorporators  of  a  trust  compa- 
ny, who,  after  the  enterprise  proves  unsuc- 
cessful for  want  of  sufficient  funds  to  meet 
the  statutory  requirements,  fail  to  return 
to  the  subscribers  funds  collected,  become 
personally  liable  therefor,  whether  the  fail- 
ure results  from  conspiracy,  fraud,  or  neg- 
ligence. Miller  v.  Denman,  16:  348,  95  Pac. 
67,  49  Wash    217.  (Annotated) 

185.  A  subscriber  to  the  ^tock  of  a  trust 
company  to  whom  is  delivered  stock  in  a 
bank  to  which  the  funds  subscribed  for  the 
trust  company  are  diverted  without  perfect- 


CORPORATIONS,  IV.  h; 


705 


ing  its  organization  may,  in  a  suit  to  en- 
force the  personal  liability  of  the  incorpo- 
rators to  return  his  money,  show  that  the 
bank  stock  delivered  to  him  was  an  over- 
issue, so  that  there  was  no  investment  which 
could  be  ratified.  Miller  v.  Denman,  i6: 
348,  95  Pac.  67,  49  Wash.  217. 

186.  The  election,  against  his  protest,  of 
a  subscriber  to  the  capital  stock  of  a  trust 
company  to  an  office  therein  for  which  he 
never  qualifies,  will  not  prevent  his  holding 
the  incorporators  personally  liable  for  a  re- 
turn of  his  money  in  case  they  divert  it  to 
an  unauthorized  object  without  perfecting 
the  organization  of  the  trust  company.  Mil- 
ler v.  Denman,  16:  ^48,  95  Pac.  67,  49  Wash. 
217. 

187.  Failure  of  a  farmer  who  has  sub- 
scribed to  the  stock  of  a  trust  company  to 
return  stock  of  a  bank  in  which  he  is  in- 
formed the  money  subscribed  has  been  tem- 
porarily invested  to  effect  the  earning  of  a 
dividend  pending  the  completion  of  the  or- 
ganization of  the  trust  company  is  not  a 
ratification  of  the  investment,  so  as  to  re- 
lieve the  incorporator?  from  liability  to  re- 
turn his  subscription,  where  he  is  not  in- 
formed that  the  trust  enterprise  is  aban- 
doned, or  as  to  all  the  facts  and  circum- 
stances pertaining  to  the  disposition  of  the 
money.  Miller  v.  Denman,  16:  348,  85  Pac. 
67,  49  Wash.  217. 

Sales    by,    to    corporation. 

188.  Persons  who  promote  a  corporation 
to  purchase  real  estate  are  liable  to  it  for 
the  secret  profits  which  they  make  in  pro- 
curing it  to  pay  more  than  the  price  charged 
by  the  owner  of  the  property.  Lomita  Land 
&  W.  Co.  V.  Robinson,  18:  1106,  97  Pac.  10, 
154  Cal.  36.  (Annotated) 

189.  One  who  assists  promoters  who  or- 
ganize a  corporation  to  purchase  his  prop- 
erty, to  secure  a  secret  profit  from  the 
transaction  so  that  he  becomes  liable  to  the 
corporation  therefor,  will  not  be  permitted 
to  enforce  payment  of  purchase  money  by 
the  corporation  beyond  the  amount  due  him 
less  the  promoters'  profit,  although  by  deny- 
ing such  recovery  he  may  be  compelled  to 
pay  more  than  his  proportion  of  the  amount 
which  the  corporation  is  entitled  to  recover 
from  the  promoters.  Lomita  Land  &  W. 
Co.  v.  Robinson,  18:  1106,  97  Pac.  10,  154 
Cal.  36. 

190.  That  a  promoter  of  a  corporation  to 
purchase  real  estate,  who  made  a  secret 
profit  by  turning  the  property  over  to  the 
corporation  for  a  price  in  excess  of  that 
paid  the  original  owner,  returned  the  profit 
to  a  copromoter  from  whom  he  received  it, 
upon  learning  of  the  dissatisfaction  of  the 
corporation,  does  not  absolve  him  from  lia- 
bility to  the  corporation  therefor.  Lomita 
Land  &  W.  Co.  v.  Robinson,  18;  1106,  97 
Pac.    10,    154    Cal.    36. 

191.  The  owner  of  property  for  the  pur- 
chase of  which  a  corporation  is  promoted, 
of  which  he  becomes  a  member,  who  assists 
the  promoters  to  secure  a  secret  profit  by 
making  it  appear  that  the  price  paid  is 
in  excess  of  the  actual  price,  giving  a  re- 
ceipt   for    an    amount    including    the    pro- 


Digest   1-52  I^R.A.(N.S.) 


45 


moters'  profit,  is  answerable  to  the  corpora- 
tion for  such  amount.  Lomita  Land  &  W. 
Co.  V.  Robinson,  i8:  1106,  97  Pac.  10,  154 
Cal.   36. 

192.  An  agent  for  the  sale  of  real  estate, 
who  assists  promoters  of  a  corporation  for 
its  purchase  to  make  a  secret  profit  out  of 
the  transaction  by  securing  subscribers  to 
the  agreement  within  the  time  necessary  to 
make  subscriptions  binding,  with  knowledge 
that  the  statement  of  the  purchase  price  is 
false,  is  liable  to  the  corporation  for  the 
profit  so  secured.  Lomita  Land  &  W.  Co. 
V.  Robinson,  18:  1106,  97  Pac.  10,  154  Cal. 
36. 

193.  One  having  an  option  on  real  estate, 
who  contracts  to  sell  it  to  another  at  a 
profit,  is  not,  because  the  latter  organizes  a 
corporation  to  take  over  the  propei  ty  to  the 
stock  of  which  he  subscribes,  liable  to  the 
corporation  for  the  profit  he  makes  by  the 
transaction  if  the  subscribers  have  full 
knowledge  that  he  is  making  a  profit,  al- 
though they  do  not  know  the  amount.  I>om- 
ita  Land  &  W.  Co.  v.  Robinson,  18:  1106, 
97  Pac.   10,   154  Cal.   36. 

194.  A  broker  for  the  sale  of  real  estate 
for  a  certain  commission  to  be  secretly 
added  to  the  purchase  price  and  paid  by  the 
purchaser,  who  negotiates  a  sale  to  a  per- 
son who  organizes  a  corporation  to  take 
over  the  property,  to  the  stock  of  which  the 
broker  subscribes  and  secures  other  subscrib- 
ers, is  liable  to  the  corporation  for  such 
commission  where  the  fact  that  he  is  to 
receive  it  is  not  disclosed  to  the  subscribers 
generally.  Lomita  Land  &  W.  Co.  v.  Robin- 
son,   18:  1 106,   97   Pac.    10,    154    Cal.   36. 

195.  A  promoter  of  a  corporation  who  has 
wrongfully  sold  property  to  it  at  an  un- 
due profit  cannot  avoid  repayment  to  the 
corporation  of  the  profit  so  secured,  on  the 
ground  that  it  will  result  in  a  benefit  to 
the  stock  taken  by  himself  and  his  copro- 
moters,  who  have  ratified  the  act,  and  whose 
stock  is  all  but  a  small  part  of  that  issued. 
Old  Dominion  Copper  Min.  &  Smelting  Co. 
V.  Bigelow,  40:  314,  89  N.  E.  193,  203  Mass. 
159. 

196.  The  remedy  of  a  corporation  whose 
promoter  has  taken  an  illegal  secret  profit 
in  a  sale  of  property  to  it  is  not  limited  to 
a  rescission  of  the  transaction,  but  it  may 
compel  a  return  of  it  to  the  corporation. 
Old  Dominion  Copper  Min.  &  Smelting  Co. 
V.  Bigelow,  40:  314,  89  N.  E.  193,  203  Mass. 
159. 

197.  The  right  of  a  corporation  to  com- 
pel a  repayment  of  illegal  promoters'  profits 
for  the  benefit  of  all  its  stockholders  is  not 
defeated  by  the  fact  that,  after  the  suit 
was  instituted,  certain  of  the  stockholders 
entered  into  an  illegal  agreement  as  to  the 
disposition  of  the  proceeds  of  the  suit.  Old 
Dominion  Copper  Min.  &  Smelting  Co.  v. 
Bigelow,  40:  314,  89  N.  E.  193,  203  Mass. 
159. 

198.  Persons  joining  a  syndicate  to  pur- 
chase property  for  sale  to  a  corporation 
whose  organization  for  its  purchase  is  un- 
der contemplation,  with  the  understanding 
that  the  property  is  to  be  sold  at  a  certain 


706 


CORPORATIONS,  T.  a. 


profit  in  stock  of  the  corporation,  are,  as 
stockholders  of  the  new  corporation,  en- 
titled to  a  disclosure,  if  the  promoter  ac- 
tually turns  the  property  over  at  greater 
profit,  for  an  increased  portion  of  the  cor- 
porate stock.  Old  Dominion  Copper  Min. 
&  Smelting  Co.  v.  Bigelow,  40:  314,  89  N. 
E.   193,  203  Mass.   159. 

199.  The  law  will  not  approve  a  transac- 
tion by  which  property  is  purchased  by  a 
promoter  of  a  corporation  with  money  so- 
licited in  substantial  part  from  associates 
by  representations  that  he  intends  to  form 
a  corporation  with  a  specified  capitaliza- 
tion, and  sell  the  property  to  it  for  a  cer- 
tain amount  of  stock,  followed  by  its  actual 
sale  to  the  corporation  for  a  much  larger 
amount,  the  settlement  with  the  associates 
at  the  price  agreed  upon,  and  the  retention 
by  the  promoter  of  the  difference  as  a  se- 
cret profit,  and  taking  cash  subscriptions 
from  the  general  public,  who  understand 
that  the  corporation  is  organized  under  a 
statute  which  requires  property  to  be  taken 
for  stock  only  at  its  true  value.  Old  Do- 
minion Copper  Min.  &  Smelting  Co.  v.  Bige- 
low, 40:  314,  89  N.  E.  193,  203  Mass.  159. 

200.  That,  at  the  time  of  the  sale  by  pro- 
moters of  property  to  a  corporation  organ- 
ized to  purcliase  it,  they  are  the  owners  of 
all  the  stock  which  has  been  issued,  no 
issue  having  been  made  of  that  intended  for 
the  public,  or  that  a  ratification  of  the 
purchase  is  secured,  does  not,  if  at  the  time 
of  the  ratification  a  substantial  portion  of 
the  stock  intended  for  the  public  remains 
unissued,  avoid  the  operation  of  the  rule 
that  promoters  who  organize  a  corporation 
to  purchase  property  from  them  for  stock 
the  par  value  of  which  is  largely  in  excess 
of  the  value  of  the  property,  and  as  part 
of  the  scheme  sell  to  the  general  public 
as  original  subscribers  a  portion  of  the 
stock  for  cash  at  par,  to  secure  a  working 
capital,  without  providing  an  independent 
board  of  officers  to  pass  upon  the  wisdom  of 
the  purchase,  having  the  purchase  ratified 
by  such  board,  or  disclosing  their  extraor- 
dinary profit  to  purchasers  of  stock,  are 
liable  to  account  to  the  corporation  for  the 
profit  of  the  proceeding.  Old  Dominion 
Copper  Min.  &  Smelting  Co.  v.  Bigelow, 
40:  314,  89  N.  E.   193,  203  Mass.   159. 

"F.  Capital;  stock  and  stockholders. 

a.  In  general;  issue  of  stock. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  of  corporation  to  purchase  its  own 
stock,  see  supra,  77-84. 

Eights  of  preferred  stockholders,  see  infra, 
255. 

Rights  of  shareholders  on  increase  of  stock, 
see  infra,   265-268. 

Making  preferred  stock  nonvoting,  see  infra, 
383,  384 

Acknowledgment  of  bill  of  sale  by  corpora- 
tion before  stockholder,  see  Acknowl- 
edgment, 2;   Attachment,  21,  22. 

Digest  1-52  I<.R.A.(N.S.) 


Assignability  of  contract  to  purchase  its 
own  stock,  see  Assignment,  16. 

Attorney's  power  to  hold  stock  to  compel 
settlement  of  claim  against  client,  see 
Attorneys,  72. 

Stockholders  in  bank,  see  Banks,  II. 

For  bonds  by  corporations,  see  Bonds, 
III.  a. 

Market  value  of  stocks  and  bonds  of  rail- 
way company  as  criterion  by  which  to 
determine  value  of  property  for  pur- 
pose of  fixing  rates,  see  Carriers,  1039. 

Stock  of  loan  association,  see  Building  and 
Loan  Association,  2. 

Constitutionality  of  statute  as  to  increase 
of  stock,  see  Constitutional  Law,  122, 
793. 

Contract  for  sale  of  unissued  stock  as  with- 
in statute  of  frauds,  see  Contbaci'S, 
316. 

Presumption  that  persons  are  stockholders, 
see  Evidence,  135. 

SuflSciency  of  proof  that  person  is  a  stock- 
holder, see  Evidence,  2240. 

Garnishment  of  shares  of  stock,  see  Gar- 
nishment, 24. 

Competency  as  jurors  in  actions  by  or 
against  corporation  of  relatives  of 
stockholders,  see  Jury,   69,  70. 

Respective  rights  of  life  tenant  and  re- 
mainderman to  amount  distributed  to 
stockholders  upon  dissolution  of  cor- 
poration, see  Life  Tenants,  24. 

Respective  rights  of  life  tenant  and  re- 
mainderman as  to  value  of  right  to  sub- 
scribe to  additional  stock,  see  Life 
Tenants,  21-24. 

Employment  of  agent  to  buy  or  sell  stock, 
see  Principal  and  Agent,  103-105, 
109. 

Right  of  broker  to  commissions  on  sale  of 
corporate  stock,  see  Principal  and 
Agent,  109,  110. 

Control  by  public  service  commission  of  is- 
sue of  corporate  securities,  see  Public 
Service  Commission,  7-9. 

Taxation  of  capital  stock,  see  Taxes,  22, 
27-30,  75-77,  187,  188. 

Succession  tax  on  stock  held  by  nonresident 
in  domestic  corporation  domiciled  with- 
in the  state,  see  Taxes,  341. 

Creation  of  trust  in  corporate  stock,  see 
Trusts,  19. 

Relation  of  trustee  and  cestui  que  trust  be- 
tween legal  and  beneficial  owner  of 
stock,  see  Trusts,  39. 

Investment  in  capital  stock  of,  by  trustee, 
see  Trusts,  110,  113. 

Right  of  trustee  to  acquire  pro  rata  share 
of  increase  of  stock  to  which  trust  es- 
tate is  entitled,  see  Trusts,  110. 

What  constitutes  testamentary  disposal  of 
stock,  see  Wills,  15. 

Lapse  of  bequest  of  stock  by  exchange  there- 
of for  bonds,  see  Wills,  392. 

Bequest  of  "my  railroad  stock"  as  specific, 
see  Wills,  415. 

Competency  of  stockholder  as  witness  in 
action  against  corporation,  see  Wit- 
nesses, 59. 

201.  Shares  of  the  capital  stock  of  a  cor- 


CORPORATIONS,  V.  b,  1. 


707 


f)oration,  and  their  ownership,  are  created 
)y  the  payment  or  agreement  to  pay  for 
stock  accepted  by  the  corporation.  United 
States  Radiator  Corp.  v.  State,  46:  585,  101 
N.  E.  783,  208  N.  Y.  144. 
Reduction   of   stock. 

202.  Equity  will  interfere  to  prevent  the 
majority  stockholders  of  a  corporation  from 
exercising  tlieir  statutory  power  to  reduce 
its  capital  stoclc,  where  the  purpose  is  to 
relieve  defrauding  stockholders  from  meet- 
ing their  obligations  on  the  theory  that 
they  have  been  overreached  in  a  contract  by 
which  full-paid  stock  was  issued  for  patent 
rights.  Theis  v.  Durr,  i:  571,  104  N.  W. 
985,   125  Wis.  651,  (Annotated) 

b.  Suhscriptions. 

1.  In  general. 

(See   also    same   heading   in  Digest   L.R.A. 


1-10.) 


m;'N27£  ;7S'.pni 


Agreement  by  corporation  to  repurchase 
stock  sold,  with  interest  or  bonus,  see 
supra,  80. 

Liability  of  promoters  for  fraud  in  sale  of 
stock,  see  supra,  IV.  h. 

Subscription  to  stock  of  foreign  corporation 
which  has  not  complied  with  local  laws, 
see  infra,  442. 

Unpaid  subscriptions  as  assets  in  bank- 
ruptcy, see  Bankruptcy,  53. 

Enforcement  against  bankrupt  of  promise 
to  return  amount  paid  for  stock  of  cor- 
poration if  surrendered  within  certain 
time,  see  Bankruptcy,  119. 

Place  of  contract  on  sale  of  corporate  stock, 
see  Conflict  of  Laws,  5. 

Subscription  to  Young  Men's  Christian  As- 
sociation as  subscription  to  shares  of 
commercial  corporation,  see  Contracts, 
208. 

Promise  by  promoter  of  corporation  to  pay 
for  stock  taken  by  subscriber  upon  its 
surrender  within  certain  time,  see  Con- 
tracts, 295. 

Contract  for  sale  of  unissued  stock  within 
statute  of  frauds,  see  Contracts,  316. 

Presumption  that  obligation  to  subscribe  to 
stock  was  terminated,  see  Evidence, 
596. 

Evidence  on  question  whether  subscriptions 
were  made  in  good  faith,  see  Evidence, 
1671, 

Liability  of  officers  for  fraud  in  inducing 
purchase  of,  see  Fraud  and  Deceit,  37. 

Surrender  of  notes  given  for  stock  subscrip- 
tion as  fraudulent  transfer,  see  Fraud- 
ulent Conveyances,  5, 

See  also  supra,  176. 

203.  That  one  who  assisted  in  securing  a 
note  for  stock  in  a  corporation  by  fraud  was 
not  an  officer  of  the  corporation  does  not 
relieve  him  from  liability  for  the  fraud,  if 
he  was  acting  as  its  agent  to,  and  conspired 
with  its  officers  to  defraud  the  maker.  HofT- 
man  v.  Toft,  52:  944,  142  Pac.  365,  70  Or. 
488. 
Digest  1-52  L.R.A.(X.S.) 


Conditions  to  subscription. 

Admissibility  of  evidence  that  note  for  stock 
was  given  on  certain  conditions,  see 
Evidence,  949. 

See  also  infra,  356. 

204.  Subscriptions  by  persons  who  are  not 
apparently  able  to  pay  them  when  called 
for  cannot  be  counted  in  determining  wheth- 
er or  not  the  condition  that  a  certain 
amount  shall  be  subscribed  in  good  faith 
to  the  capital  stock  of  a  proposed  corpora- 
tion before  the  subscription  shall  become 
binding  has  been  met.  Stone  v.  Monticello 
Constr.  Co.  40:  978,  117  S.  W.  369,  135  Ky. 
659. 

205.  That  corporations  which  have  paid 
their  subscriptions  to  the  stock  of  another 
corporation  had  no  authority  to  make  the 
subscriptions  will  not  require  such  subscrip- 
tions to  be  ignored  in  determining  whether 
or  not  the  requisite  amount  of  subscrip- 
tions made  in  good  faith  had  been  received 
to  make  other  subscriptions  binding  under 
the  conditions  of  the  contract.  Stone  v. 
Monticello  Constr.  Co.  40:  978,  117  S.  W. 
369,    135    Ky.    659. 

Cancelation  or  release. 

Claim  against  trustee  in  bankruptcy  be- 
cause of  fraudulent  sale  of  stock,  see 
Bankbutptcy,  138. 

Right  of  purchaser  of  stock  to  rely  on 
reports  to  commercial  agency,  see 
Fraud  and  Deceit,  63.  \ 

Rescission  by  infant  of  subscription  to 
stock,  see  Infants,  72,  91. 

Delay  in  rescinding  subscription,  see  Limi- 
tation OF  Actions,  78,  79;  Pleading, 
199,  409,  410. 

Sufficiency  of  evidence  to  take  to  jury 
question  of  fraud  in  securing  sub- 
scription, see  Trial,  115. 

206.  An  action  by  a  corporation  to  cancel 
stock  on  account  of  overvaluation  of  the 
property  for  which  it  was  issued  is  not  for 
the  benefit  of  other  stockholders,  so  as  to 
permit  an  adjustment  in  it  of  their  griev- 
ances for  being  induced  to  invest  money  in 
the  enterprise  through  fraud.  Iowa  Drug 
Co.  v,  Souers,  19:  115,  117  N.  W.  300,  139 
Iowa,  72. 

207.  One  cannot  avoid  his  contract  to 
purchase  stock  of  a  corporation  on  the 
ground  that  it  was  not  legally  organized, 
or  that  the  stock  was  not  legally  issued. 
Burwash  v.  Ballou,  15:409,  82  N.  E.  355, 
230  111.  34.  (Annotated) 

208.  A  subscription  to  the  capital  stock 
of  a  corporation  cannot  be  rescinded  for 
fraud  in  its  procurement,  after  insolvency 
of  the  corporation  and  the  appointment  of 
a  receiver,  where  the  corporation  has  pro- 
ceeded to  do  business  upon  the  basis  of 
the  stock  subscription,  and  has  incurred 
indebtedness  which  has  not  been  satisfied. 
Gress  v.  Knight,  31:  900,  68  S.  E.  834,  135 
Ga.  60. 

209.  Whether  or  not  a  subscription  for 
stock  in  a  corporation  may  be  set  aside  for 
fraud  in  its  procurement,  after  a  receiver 
has  been  appointed  for  the  corporation,  de- 
pends upon  the  length  of  time  that  has 
elapsed    since    the   subscription   was   made. 


ro8 


COKPORATIO^S,  V.  b,  2. 


whether  the  subscriber  has  actively  partic- 
ipated in  the  management  of  the  corporate 
affairs,  whether  there  has  been  a  lack  of 
diligence  on  his  part  in  discovering  the 
fraud  or  in  taking  steps  to  rescind  after 
its  discovery,  and  whether  any  consider- 
able amount  of  corporate  indebtedness  in- 
curred since  the  subscription  was  made  re- 
mains outstanding  and  unpaid.  Gress  v. 
Knight,  31:  900,  68  S.  E.  834,  135  Ga.  60. 

(Aiuiotated) 

2.  Payment. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Liability  of  stockholder  for  unpaid  stock, 
see  infra,  V.  f,  3. 

Presumption  that  creditor  relied  upon  re- 
presentations that  stock  was  fully  paid, 
see  Evidence,  267. 

See  also  infra,  274. 

210.  A  promissory  note  given  to  a  corpo- 
ration in  exchange  for  shares  of  its  capital 
stock  is,  like  a  subscription  or  check  given 
for  the  same  purpose,  a  promise  to  pay  for 
such  stock,  and  does  not  constitute  "pay- 
ment" therefor,  nor  relieve  the  stockholder 
or  the  party  entitled  to  stock  from  his  obli- 
gation to  make  actual  payment  under  § 
4196,  North  Dakota  Revised  Code  1905.  pro- 
viding that  no  note  or  obligation  given  by  a 
stockholder  shall  be  considered  as  payment 
of  any  part  of  the  capital  stock,  but  the 
capital  stock  shall  be  paid  in,  either  in  cash 
or  in  the  manner  provided  by  the  statute, 
German  Mercantile  Co.  v.  Wanner,  52:  453, 
]42  N.  W.  463,  25  N.  D.  479. 

211.  The  assets  of  a  corporation  in  excess 
of  the  amount  of  its  capital  stock  and  debts 
may  be  applied  by  its  stockholders  in  pay- 
ment of  the  subscriptions  of  themselves  and 
an  outsider  for  increased  capital  stock, 
such  a  transaction  being  equivalent  to  a 
stock  dividend.  Lantz  v.  Moeller,  50:  68, 
136  Pac.  687,  76  Wash.  429.       (Annotated) 

212.  A  contract  by  a  corporation  to  re- 
turn to  a  subscriber  within  a  certain  time 
the  amount  paid  for  his  stock,  which  he  is 
permitted  to  keep,  is,  in  the  absence  of  earn- 
ings sufficient  to  justify  dividends  of  that 
amount,  in  contravention  of  a  constitutional 
provision  that  corporations  shall  not  issue 
stock  except  to  bona  fide  subscribers  there- 
for, nor  issue  any  obligations  for  the  pay- 
ment of  money  except  for  money  or  prop- 
erty received  or  labor  done.  Jorguson  v. 
Apex  Gold  Mines,  46:  637,  133  Pac.  465,  74 
Wash.  243. 

213.  Although  a  corporation,  unless  pro- 
hibited by  some  constitutional  or  statutory 
provision,  may  in  good  faith  issue  paid-up 
shares  for  the  purchase  of  property  or  for 
services  actually  rendered,  when  it  ap- 
pears that  stock  is  issued  to  certain  per- 
sons as  a  bonus  in  return  for  the  use  of 
their  names  as  directors,  and  not  in  pay- 
Diceit  1-52  I<.R.A.(N.S.) 


ment   of   any   services   performed   or   to  be 

performed  by  them,  it  will  not  be  regarded 

as  paid-up  stock.     Randall   Printing  Co.  v. 

Sanitas  Mineral   Water  Co.  43:  706,   139  N. 

W.  606,   120  ^linn.  268. 

Stock  issued  in  exchange  for  property 
or  services. 

Liabilitv  of  stockiiolders,  see  infra,  V.  f, 
3,  b. 

Condition  precedent  to  suit  for  accounting 
in  case  of  fraudulent  issue  of  stock  in 
exchange  for  property,  see  Action  ob 
Suit,  26. 

Recovery  by  conditional  vendor  from  corpo- 
ration to  whom  property  has  been 
turned  over  in  payment  of  stock,  see 
Sale,  50. 

See  also  supra,  212,  213 ;    infra,  246. 

214.  A  corporate  charter  providing  that 
stock  shall  be  paid  for  in  cash,  or  in  month- 
ly instalments,  or  in  check,  does  not  prevent 
paj'ment  in  property  and  services.  Lea-  v. 
Cutrer,   27:  315,   51    So.   808,   96   Miss.   355. 

(Annotated) 

215.  The  trust-fund  doctrine,  requiring 
one  paying  for  corporate  stock  in  property 
to  show  that  the  property  wa.s  actually 
worth  the  value  of  the  stock,  has  no  appli- 
cation as  between  the  corporation  itself  and 
the  stockholder  who  has  received  his  stock 
in  exchange  for  propertj-  surrendered  at  an 
agreed  valuation.  Iowa  Drug  Co.  v.  Souers, 
19:  115,  117  N.  W.  300,  139  Iowa,  72. 

(Annotated) 

216.  An  unpatented  formula  is  not  prop- 
erty within  the  meaning  of  a  constitutional 
provision  that  no  corporation  shall  issue 
stock  except  for  property  actually  received. 
O'Bear-Nester  Glass  Co.  v.  Antiexplo  Co. 
16:  520,  108  S.  W.  967,  101  Tex.  431. 

(Annotated) 

217.  Under  the  provisions  of  §  39  of 
article  9  of  the  Constitution  of  Oklahoma 
that  "no  corporation  shall  issue  stock  ex- 
cept, for  money,  labor  done,  or  property 
actually  received  to  the  amount  of  the  par 
value  tiiereof,  .  .  ."  the  right  to  use  a 
party's  name  in  organizing  a  corporation, 
and  a  method  of  refining  gasolene,  which 
was  not  patented,  which  was  in  use  at  a 
number  of  other  places,  and  which  was  the 
result  of  a  method  of  construction  used  by 
the  plaintiff  wherever  he  built  refineries,  is 
not  property  actually  received  to  the 
amount  of  the  par  value  thereof,  for  which 
capital  stock  of  the  corporation  should  be 
issued.  Webster  v.  Webster  Refining  Co. 
47:  697,  128  Pac.  261,  36  Okla.   168. 

218.  A  promissory  note  given  to  a  corpo- 
ration by  the  purchaser  of  corporate  stock, 
being  property,  prevents  the  transaction 
from  coming  within  the  prohibition  of  a 
constitutional  provision  that  no  corporation 
shall  issue  stock  except  for  money,  labor 
done,  "or  property  actually  received,"  and 
is  a  valid  obligation.  German  Mercantile 
Co.  V.  Wanner,  52:  453,  142  X.  W.  463,  25  N. 
D,  479.  (Annotated) 


OORPORATIOKS,  V.  c,  1. 


709 


-''  c.  T-ransfers ;  lien. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Effect  on  stockliolder's  liability,  see  infra, 
V.  f,  2. 

Fraud  in  inducing  purcliase  or  sale  of  stock, 
see  Action  or  Suit,  25,  35a;  Evidence, 
1689;  Fraud  and  Deceit,  7,  34,  35,  37, 
57,  63,  71-73;  Limitation  of  Actions, 
178;   Sale,  214,  216,  217. 

Attachment  of  corporate  stock  pledged  to 
securities,  see  Attachment,   10. 

Priority  as  between  attaching  creditor  of 
one  in  whose  name  stock  appears  on 
books  and  real  owner  of  stock,  see  At- 
tachment, 19,  20. 

Title  of  trustee  in  bankruptcy  to  stock  held 
by  creditor  under  parol  pledge,  see 
Bankruptcy,  107. 

National  bank's  authority  to  take  title  to 
stock  pledged,  see  Banks,  190. 

Transfer  of  bank  stock,  see  Banks,  11-13. 

Transfer  of  certificate  of  shares  in  buildiTig 
and  loan  association,  see  Building  and 
Loan  Associations,  4. 

Transfer  of  stock  certificates  as  interstate 
commerce,   see  Commerce,   8,  9. 

Purchase  of  stock  on  margin,  see  Conflict 
OF  Laws,  132;   Contracts,  534. 

Effect  of  death  on  contract  for  purchase  of 
stock,  see  Contracts,  725,   726. 

Irr9Vocability  of  option  to  purcliase  stock, 
see  Contracts,  729. 

Impairment  of  contract  obligations  by  con- 
ditions as  to  transfer,  see  Constitu- 
tional Law,  789. 

Forgery  of  signature  to  transfer,  see  Con- 
tracts, 20. 

Consideration  for  pledge  of  stock,  see  Con- 
tracts, 67. 

Oral  contracts  for  sale  of  shares  of  stock, 
see  Contracts,  204-207,  305,  307. 

Agreement  by  transferee  of  stock  not  en- 
gaged in  competing  business,  see  CoN- 
tr/Vct,  545. 

Damages  for  breach  of  contract  to  deliver 
stock  to  purchaser,  see  Damages,   107. 

Measure  of  damages  for  misrepresenting 
value  of  stock  sold,  see  Damages,  331. 

Setting  aside  transfer  of  stock  because  of 
duress,  see  Duress,  10. 

Rights  of  bona  fide  assignee  of  contract 
for  purchase,   see  Estoppel,  34. 

Estoppel  of  corporation  by  statement  in 
certificate  of  stock  as  to  conditions  of 
transfer,    see   Estoppel,    54. 

Estoppel  as  against  innocent  purchaser  to 
deny  that  stock  is  fully  paid,  see  Es- 
toppel, 203. 

Presumptions  and  burden  of  proof  in  action 
on  note  given  for  stock,  see  Evidence, 
584. 

Validity  of  transfer  as  against  creditors  of 
transferrer,  see  Fraudulent  Convey- 
ances, 43. 

Gift  of  stock  ceitificate,  see  Gifts,  25. 

Digest  1-52  l4.R.A.(N.S.) 


Indictment  for  misrepresenting  facts  to  pur- 
cliaser  of  stock,  see  Indictment  etc., 
84. 

Injunction  by  purchaser  of  stock  to  restrain 
sherifl'  from  selling  on  execution  against 
vendor,  see  Injunction,  294. 

Conclusiveness  as  to  former  transferee  of 
order  to  place  stock  in  name  of  subse- 
quent transferee,  see  Judgment,  238. 

Conclusiveness  against  transferee  of  judg- 
ment against  record  owner,  see  Judg- 
ment, 261. 

Riglit  of  one  causing  delay  of  suit  for  dam- 
ages by  transferee  of  stock  to  set  up 
statute  of  limitations,  see  Limitation 
OF  Actions,  95. 

Mandamus  to  compel  transfer  of  stock,  see 
Mandamus,  64. 

Imputing  to  purchaser  of  stock  notice  of 
statutes  as  to  transfers,  see  Notice,  7. 

Right  of  corporation  to  enforce  promise  of 
assignee  of  stock  to  pay  unpaid  sub- 
scriptions, see  Parties,  56. 

Pleading  as  to,  see  Pleading,  259. 

Pledge  of  stock  generally,  see  Pledge  and 
Collateral  Security,  27. 

Fraud  as  defense  to  surety  on  contract  for 
purcliase  of  corporate  stock,  see  Princi- 
pal AND  Surety,  66. 

Rescission  of  purchase  of  stock,  see  Sale, 
214,  216,  217. 

Specific  performance  of  contract  for  sale  or 
exchange  of  stock,  see  Specific  Per- 
formance, 38,  81,  124. 

Tax  on  transfer  of  stock,  see  Taxes,  VII. 

Rescission  of  trade  of  farm  for  stock,  see 
Vendor  and  Purchaser,  34. 

Ademption  of  bequest  of  stock,  see  Wills, 
400-402. 

219.  A  warranty  that  a  railway  company, 
the  stock  of  which  is  being  sold,  owns  a 
power  house,  pump  house,  and  other  appur- 
tenances, all  of  which  are  mentioned  in  an 
inventory,  does  not  include  an  easement  for 
drawing  water  from  a  pond  which  does  not 
belong  to  the  company,  and  is  not  mentioned 
in  either  the  warranty  or  inventory.  Coal 
Belt  Electric  R.  Co.  v.  Peabodv  Coal  Co. 
13:  1 144,  82  N.  E.  627,  230  111.  164. 

220.  Since,  at  common  law,  a  written  as- 
signment with  power  of  transfer  on  the 
books  of  the  company  was  necessary  to  ef- 
fect an  assignment  of  corporate  stock,  such 
written  assignment  is  necessary  to  effect  a 
pledge,  under  a  statute  providing  that  for 
such  purpose  the  transfer  must  be  by  "as- 
signment and  delivery,"  accompanied  by 
memorandum  upon  the  stock  book.  French 
V.  ^Yhite,  2:  804,  62  Atl.  .35,  78  Vt.  89. 

(Annotated) 
Necessity  of  certificate. 
See  also  infra,  424. 

221.  One  who  sells  his  stock  in  a  corpora- 
tion the  certificate  of  which  has  never  been 
issued  is  under  no  duty  of  securing  a  cer- 
tificate of  issuance,  and  delivering  it  to  the 
purchaser.  Ford  v.  Howgate,  29:  734,  76 
Atl.  939,  106  Me.  517. 
Negotiability    of    certificate. 

222.  A  custom  prevailing  among  brok- 
ers  and   bankers   to   pass   stock   certificates 


710 


CORPORATIONS,  V.  c,  1. 


indorsed  in  blank  from  hand  to  hand  with- 
out inquiry  as  to  source  of  title,  the  same 
as  negotiable  paper,  does  not  override  the 
established  law  that  stock  certificates  have 
not  all  the  attributes  of  negotiable  in- 
struments; nor  does  such  custom  warrant 
the  court  in  changing  the  law  to  conform 
to  the  custom.  Schumacher  v.  Greene 
Cananea  Copper  Co.  38:  180,  134  N.  W. 
510,  117  Minn.  124. 
Transfer  on  liooks. 
Parties  to  proceeding  to  compel  transfer  of 

stock,  see  Appeial  and  Ebrou,  730. 
Transfer  of  bank  stock  on  books,  see  Banks, 

11-13. 
Implied  contract  of  one  requesting  transfer 

on     books     to     indemnify     corporation 

against    loss    resulting    therefrom,    see 

Contracts,  20. 
Jurisdiction  to  compel  transfer,  see  Courts, 

47. 
l']quitable    remedy    for    refusal    to    transfer 

stock  on  books,  see  Equity,  46. 
Necessity  of,  as  against  creditors  of  trans- 
ferrer, see  Fraudulent  Conveyances, 

43. 
Continuing  stock  in  name  of  one  person  on 

books  when  title  is  in  another  as  fraud, 

see  Fraud  and  Deceit,  6. 
Necessary    parties    defendant    in    action    to 

compel  transfer,  see  Parties,  158. 
See  also  supra,  220;    infra,   242,   243,   343, 

344. 

223.  A  corporation  will  not  be  compelled 
to  transfer  on  its  books  stock  to  the  name 
of  one  who,  in  the  interest  of  a  conspiracy 
against  the  business  of  the  corporation, 
seeks  information  regarding  its  business, 
which  his  position  as  stockholder  will  give 
him.  Funck  v.  farmers'  Elevator  Co.  24: 
108,  121  N.  W.  53,  142  Iowa,  621. 

(Annotated) 

224.  The  secretary  of  a  corporation  can- 
not be  compelled  to  transfer  stock  on  its 
books  while  the  corporation  disputes  the 
right  of  an  alleged  owner  to  the  standing 
of  a  stockholder,  where,  by  statute,  he  is 
required  to  make  the  transfer  only  when 
"it  is  his  duty"  to  do  so.  Re  Holyoke, 
43:  790,  139  N.  W.  392.  151   Wis.  551. 

225.  That  a  corporation  had  paid  the  divi- 
dends on  certain  of  its  capital  stock  to  the 
record  holder  thereof  prior  to  a  contract  of 
sale  nfade  by  an  assignee  of  the  certificate 
therefor  with  a  third  person  does  not  jus- 
tify a  refusal  of  the  corporation  to  transfer 
upon  its  books  the  stock  to  such  third  per- 
son, in  accordance  with  the  contract,  upon 
joint  demand  of  the  record  holder,  assignee, 
and  purchaser.  O'Neil  v.  Wolcott  Mining 
Co.  27:  200,  174  Fed.  527,  98  C.  C.  A.  309. 

226.  Neither  an  adverse  claim  nor  a  pro- 
test from  a  former  owner  is  suflfii'ient  to 
justify  a  corporation  in  refusing  to  transfer 
corporate  stock  upon  its  books  upon  demand 
of  a  prior  claimant,  wliere  the  adverse 
claimant  and  the  protesting  owner,  after 
notice  from  the  corporation,  and  opportuni- 
ty to  establish  a  claim,  neither  establish 
any  facts  which  show  a  reasonable  proba- 
bility that  their  claim  is  well  founded,  nor 
iommence  any  action  to  prevent  the  trans- 
Digest  1-52  Ii.R.A.(N.S.) 


fer  within  a  reasonable  time.  O'Neil  T. 
Wolcott  Mining  Co.  27:  200,  174  Fed.  527, 
98  C.  C.  A.  309.  (Annotated) 

227.  That  one  in  whose  name  stock  stood 
upon  the  corporate  books  notified  the  cor- 
poration that  he  had  lost  some  of  his  stock, 
and  instructed  it  not  to  transfer  any  stock 
standing  in  his  name  without  his  knowledge 
and  approval,  does  not  justify  the  corpora- 
tion in  refusing  to  transfer  the  stock  upon 
its  books  upon  demand,  made  thirteen  years 
after  such  notice  and  instruction,  of  a  pur- 
chaser and  an  intermediate  owner  tiiereof, 
when  such  demand  is  accompanied  by  a 
certificate  properly  assigned  by  the  record 
stockholder.  O'Xeil  v.  Wolcott  Mining  Co. 
27:  200,  174  Fed.  527,  98  C.  C.  A.  309. 

228.  The  request  of  a  purchaser  and  an 
intermediate  owner  of  corporate  stock,  par- 
ties to  a  contract  of  sale,  accompanied  with 
the  certificate,  properly  assigned  by  the 
stockholder  of  record,  imposes  the  same 
duty  upon  Ihe  corporation  to  transfer  the 
stock,  when  the  transfer  is  a  condition  of 
the  performance  of  the  contract  of  sale, 
that  a  request  by  the  transferee  after  the 
sale  is  completed  would  impose.  O'Neil  v. 
Wolcott  Mining  Co.  27:  200,  174  Fed.  527, 
98  C.  C.  A.  309. 

229.  Notwithstanding  a  statutory  provi- 
sion that  transfers  of  stock  shall  be  void 
unless  made  on  the  books  of  corporations, 
stockholders  are  estopped  by  their  delivery 
of  certificates  of  their  stock,  indorsed  with 
blank  assignments  and  pov.'ers  of  attorney, 
from  claiming  any  title  to  or  interest  in 
their  stock  as  against  bona  fide  purchasers 
thereof  from  those  to  whom  such  stockhold- 
ers have  delivered  such  certificates.  O'Neil 
v.  Wolcott  Mining  Co.  27:  200,  174  Fed.  527, 
98  C.  C.  A.  309. 

230.  A  bona  fide  purchaser  of  the  capital 
stock  of  a  corporation  may  sue  in  equity 
to  compel  the  corporation  to  enter  the  as- 
signment upon  its  books,  and  to  issue  a  new 
certificate  therefor.  Everitt  v.  Farmers  & 
M.  Bank,  20:  996,  117  N.  W.  401,  82  Neb.  191. 

231.  A  transfer  of  stock  on  the  books  of 
a  corporation  without  compliance  with  a 
provision  of  the  certificate  as  to  its  transfer 
will  not  protect  the  corporation  against 
the  claims  of  the  former  holder,  where  the 
evidence  shows  that  he  never  authorized 
the  transfer.  Citizens'  Nat.  Bank  v.  State 
ex  rel.  Kellogg,  45:  1075,  101  N.  E.  620,  179 
Ind.  621.  (Annotated) 

232.  One  who  takes  corporate  stock  from 
an  officer  in  payment  of  his  individual  debt, 
without  securing  a  record  of  the  transfer 
on  thj  books  of  the  corporation,  is  bound 
by  a  judgment  in  favor  of  the  corporation 
against  the  record  owner  canceling  the 
stock  for  wrongful  issuance,  where  the  stat- 
ute provides  that  no  transfer  of  such  stock 
shall  be  valid  except  between  the  parties, 
until  the  same  shall  have  been  entered  upon 
the  books  of  the  corporation.  Whitfield  v. 
Nonpariel  Consol.  Copper  Co.  41:  187,  123 
Pac.  1078,  67  Wash.  286. 

233.  One  taking  corporate  stock  as  col- 
lateral for  the  debt  of  an  officer  who,  al- 
though    having     authority    to     issue    such 


CORPORATIONS,  V.  c,  2,  3. 


711 


stock,  issued  the  particular  certificate 
fraudulently  and  without  authority,  with- 
out placing  a  record  of  the  transfer  upon 
the  books  of  the  corporation,  is  not  entitled 
to  protection  as  a  bona  fide  holder  for 
value,  if  tlie  statute  provides  that  no  trans- 
fer of  corporate  stock  shall  be  valid  except 
between  the  parties  thereto  until  it  is  en- 
tered on  the  books  of  tlie  corporation.  Whit- 
field V.  Nonpariel  Consol.  Copper  Co.  41: 
187,  123  Pac.  1078,  67  Wash.  286. 

(Annotated) 
234.  Statutes  requiring  corporations  to 
keep  stock  transfer  books  which  shall  be 
open  to  the  inspection  of  any  stockholder, 
member,  or  creditor,  and  providing  that 
transfers  siiall  not  be  valid,  except  between 
the  parties  thereto,  until  entered  on  the 
corporate  books,  are  not  intended  for  the 
protection  of  the  public,  and  therefore  an 
unregistered  pledge  of  stock  is  valid  against 
a  subsequent  attachment,  against  the  stock- 
holder, by  a  creditor  without  notice.  State 
Banking  &  T.  Co.  v.  Taylor,  29:  523,  127  N. 
W.   590.  25  S.   D.   577. 

•  235.  A  purchaser  of  the  capital  stock  of  a 
corporation  for  a  valuable  consideration,  in 
the  absence  of  fraud  or  a  controlling  stat- 
ute, is  protected  against  subsequent  attach- 
ment or  execution  issued  against  his  grant- 
or, although  he  failed  to  have  his  assignment 
recorded  upon  the  books  of  the  corporation. 
Everitt  v.  Farmers  &  M.  Bank,  20:  996,  117 
N.  W.  401,  82  Neb.  191.  (Annotated) 

236.  A  provision  in  a  stock  certificate  that 
it  is  transferable  only  on  the  books  of  tlie 
corporation  does  not  make  an  unregistered 
transfer  inett'ectual  as  against  a  subsequent 
attachment  of  the  stock  as  that  of  the 
vendor.  National  Bank  v.  Western  P.  R. 
Co.  27:  987,  108  Pac.  676,  157  Cal.  573. 

237.  Corporate  stock  a  transfer  of  which 
has  not  been  registered  on  the  books  of  the 
corporation  is  not  subject  to  attachment 
as  the  property  of  the  transferrer,  under 
a  statute  providing  that  an  unregistered 
transfer  is  not  valid  except  as  to  the  par- 
ties thereto,  where  the  right  to  inspect  the 
stock  book  belongs  only  to  stockholders  and 
creditors  of  the  corporation.  National  Bank 
V.  Western  P.  R.  Co.  27:  987,  108  Pac.  676, 
157  Cal.  573. 

238.  A  statutory  provision  that  no  trans- 
fers of  stock  shall  be  valid,  except  as  be- 
tween the  parties,  until  the  same  shall  have 
been  regularly  entered  upon  the  books  of  the 
corporation,  does  not  aff"ect  the  power  of 
the  corporation  to  agree  with  a  bona  fide 
purchaser  to  enter  a  transfer  upon  demand 
and  notice  when  no  legal  reason  exists  for  its 
refusal.  Westminster  Nat.  Bank  v.  New 
England  Electrical  Works,  3:  551,  62  Atl. 
971,  73  N.  H.  465. 

Pledgee's    rights. 

Pledge  of  bank  stock,  see  Banks,  14,  15. 
Consideration  for  pledge  of  stock,  see  Con- 
tracts, 67. 
See  also  supra,  233,  234. 

239.  A  pledgee  of  bank  stock  takes  sub- 
ject to  the  right  and  duty  of  the  bank, 
conferred  by  existing  statutes,  to  impose 
assessments  upon  the  stock  in  case  the 
Digest   1-52  L.R.A.(N.S.) 


capital  is  impaired,  and  enforce  it  by  a  for- 
feiture of  the  stock  or  its  sale  to  the  high- 
est   bidder.      Corbin    Bkg.    Co.    v.    Mitchell. 
31:  446,  132  S.  W.  426,  141  Ky.  172. 
Rights    of   transferees   generally. 
Necessity   of  transfer   on  books,   see  supra, 

224-238, 
In   case  of   forged  or   fraudulent   issue,  see 

infra,  V.  d. 
Laches  of  transferee  of  stock  in  asserting  his 
rights,  see  Limitation  of  Actions,  57. 
Mandamus  to  compel  corporation  to  recog- 
nize rights  of  holder  of  certificate  ot 
stock,  see  Mandamus,  63. 

240.  Purchasers  of  corporate  stock  who 
comply  with  a  demand  of  the  corporation 
to  pay  an  alleged  lien  against  the  stock, 
which  could  not  have  been  legally  enforced, 
cannot  reimburse  themselves  from  the  vend- 
ors of  the  stock  under  the  implied  war- 
ranty of  title.  Bankers'  Trust  Co.  v.  Mc- 
Cloy,  47:  333,   159  S.  W.  205,  109  Ark.  160. 

241.  A  corporation  cannot  refuse  to  recog- 
nize stock  in  the  hands  of  a  bona  fide  owner 
on  the  ground  that,  because  of  an  unauthor- 
ized transfer  of  the  stock  to  a  stranger, 
such  recognition  would  amount  to  an  un- 
authorized overissue  of  capital  stock.  Citi- 
zens' Nat.  Bank  v.  State  ex  rel.  Kellogg, 
45:  1075,  101  N.  E.  620,   179  Ind.  621. 

242.  The  title  of  a  purchaser  of  corporate 
stock  is  not  affected  by  the  fact  that  the 
seller's  agent  agrees  not  to  transmit  the 
price  to  his  principal  until  the  question  of 
the  purchaser's  right  to  transfer  on  the 
books  of  the  corporation  is  settled.  Pease 
v.  Chicago  Crayon  Co.  18:  1 158,  85  N.  E. 
619,  235  111.  391. 

243.  Upon  denial  of  a  prayer  for  the 
transfer  of  stock  on  the  books  of  a  corpora- 
tion, the  court  will  not  enter  a  judgment 
permitting  the  plaintiff  to  accept  the  tender, 
by  the  corporation,  of  the  value  of  tlie 
stock  upon  its  surrender,  since  he  does  not 
need  the  aid  of  the  court  to  secure  such  re- 
lief. Funck  V.  Farmers'  Elevator  Co.  24: 
108,  121  N.  W.  53,  142  Iowa,  621. 
Purchaser  of  stolen  certificates. 
Estoppel  of  owner  to  assert  title  to  stolen 

certificates,  see  Estoppel,  85. 
See  also  Larceny,  34. 

244.  When  a  stock  certificate  is  pledged 
with  a  bank,  the  act  of  an  officer  thereof 
in  wrongfully  appropriating  the  same  for 
his  own  purposes  is  not  the  misappropria- 
tion of  the  bank  to  whose  custody  it  was 
intrusted  so  as  to  throw  the  loss  on  the 
pledgeor  in  favor  of  a  bona  fide  purchaser 
to  whom  it  was  transferred.  Schumaclier 
v.  Greene  Cananea  Copper  Co.  38:  180,  134 
N.  W.  510,  117  Minn.   124. 

2.  Prior  right  of  purchase. 

(See  same  heading  in  Digest  LM.A.  1-10.) 

3.  Lien. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Lien  on  bank  stock,  see  Banks,  ]5. 


ri2 


CORPORATIONS,  V.  d,  e,  1. 


244a.  The  possibility  of  shrinkage  in  the 
assets  of  a  business  for  which  stock  is  is- 
sued by  a  corporation  organized  to  take 
over  the  business,  which,  by  resolution  of 
the  corporation,  is  to  be  made  up  out  of 
dividends  declared,  is  not  a  debt  due  with- 
in the  meaning  of  a  statute  giving  corpo- 
rations a  lien  on  stock  for  all  debts  due  it 
from  its  members.  Bankers'  Trust  Co.  v. 
McCloy,  47:  333,  159  S.  W.  205,  109  Ark.  160. 

d.  Forged  or  fraudulent  issue. 

(See  also   same   heading   in   Digest   L.R.A 
1-10.) 

See  also  supra,  232,  233 ;  infra,  274,  282,  283. 

245.  A  corporation  which  has  been  in- 
duced fraudulently  to  issue  corporate  stock 
cannot,  by  subsequent  ratification,  bind 
stockholders  who  had  no  notice  of  the  fraud. 
Shaw  V.  Staight,  ao:  1077,  119  N.  W.  951, 
107  Minn.  152. 

246.  An  issue  of  28,000  shares  of  stock  of 
a  packing  company,  selling  in  the  market 
at  $1  per  share,  in  consideration  of  certain 
fisliing  paraphernalia  and  locations  repre- 
sented as  worth  $21,800,  but  which  in  fact 
were  worthless,  to  a  director  who  acted  as 
secretary  of  the  corporation,  and  who  had 
full  knowledge  that  it  would  receive  no 
value  therefrom  for  the  stock,  is  fraudulent 
and  void,  and  will  be  set  aside  at  the  suit 
in  equity  of  a  stockholder,  notwithstand- 
ing, as  a  part  of  the  consideration,  such 
director  agreed  to  act  as  secretary  of  the 
corporation  for  two  years,  without  compen- 
sation, the  reasonable  value  of  which  serv- 
ices would  be  $600.  Shaw  v.  Staight,  20: 
1077,  118  N,  W.  951,  107  Minn.   152. 

247.  A  holder  of  corporate  stock  wlio  has 
full  knowledge  of  the  fraudulent  dealings 
by  which  his  transferrer  obtained  the  issue 
of  the  stock,  and  who  pays  no  consideration 
therefor,  is  not  such  a  good-faith  holder  as 
can  complain  of  the  cancelation  of  the  stock 
at  the  suit  of  a  bona  fide  shareholder.  Shaw 
V.  Staight,  20:  1077,  119  N.  W.  951,  107 
Minn.  152. 

248.  One  who  takes  corporate  stock  from 
an  ollicer  having  authority  to  issue  the 
same,  in  payment  of  his  individual  debt, 
cannot  hold  the  company  estopped  from 
questioning  the  rightfulness  of  the  issuance 
of  the  particulur  certificate  so  transferred. 
Whitfield  V.  Nonpariel  Consol.  Copper  Co. 
^:  187,  123  Pac.  1078,  67  Wash.  286. 

c.  Rights  of  shareholders, 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Directors  as  trustees  for  stockholders,  see 
supra,  157. 

Rights  of  transferees,  see  supra,  V.  c. 

Rights  of.  at  stockholders'  meeting,  see  in- 
fra, V.  g. 

Digest  1-52  I,.R.A.(N.S.) 


As  to  rights  of  members  of  incorporated 
club,  see  Clubs. 

Agrcomont  that  certain  shareholders  of  rail- 
road company  shall  have  right  to  name 
majority  of  directors,  see  Conteagts, 
504. 

Presumption  as  to  law  of  other  state  as  to 
right  of  stockholders  to  inspect  mine, 
see  Evidence,  81. 

As  to  rights  of  members  of  mutual  insur- 
ance  company,   see  Insurance,   24-30. 

Rights  of  members  of  joint  stock  company, 
see  Joint  Stock  Company,  6. 

Stockholders  in  irrigation  company,  see 
Mandamu.s,  70;  Waters,  301. 

See  also  supra,  206,  245. 

249.  That  one  owns  all  the  stock  of  a 
corporation  does  not  make  him  the  owner 
of  its  property.  Louisville  v.  McAteer, 
1:  766,  81  S.  W.  698,  26  Ky.  L.  Rep.  425. 

250.  By  becoming  a  stockholder  in  a  cor- 
poration, one  consents  to  become  bound  by 
a  subsequent  statute  valid  as  against  the 
corporation,  requiring  it  to  pay  its  em 
ployees'  wages  weeklj'.  Lawrence  v.  Rut- 
land R.  Co.  15:  350,  67  Atl.  1091.  80  Vt.  370. 

251.  The  stockholders  of  a  corporation 
cannot,  by  agreement  among  themselves, 
convert  the  corporation  into  a  partnership, 
so  as  to  permit  a  court  of  equity,  upon  dis- 
agreement between  the  parties,  to  take  the 
corporate  property  into  its  control,  as  upon 
the  dissolution  of  a  partnership.  Jackson 
v.  Hooper  (N.  J.  Err.  &  App.)  27:  658,  75 
Atl.  568,  76  N.  J.  Eq.  592. 

252.  The  decree  in  a  suit  to  compel  recog- 
nition of  one's  rights  as  a  stockholder  in  a 
new  corporation  organized  to  take  over  the 
property  of  an  old  one  of  which  he  was  a 
member  should  not  give  him  a  preference 
over  holders  of  other  stock  of  equal  grade, 
who  have  paid  cash  for  it  the  same  as  he 
did.  Sparrow  v.  E.  Bement  &  Sons,  10:  725, 
105  N.  W.  881,  142  Mich.  441. 

253.  OflScers  and  stockholders  of  a  cor- 
poration who,  as  its  agents,  sell  its  busineso 
and  good  will,  are  not,  merely  because  they 
participate  in  the  sale  and,  as  stockholders, 
receive  its  benefits,  bound  by  the  stipula- 
tions of  the  contract  against  re-engaging  in 
business.  Hall's  Safe  Co.  v.  Herring-Hall- 
Marvin  Safe  Co.  14:  1 182,  146  Fed.  37,  76 
C.  C.  A.  495. 

254.  A  stockholder  of  a  mining  corpo- 
ration has  a  right  to  inspect  its  mines 
for  a  legitimate  purpose  upon  good  cause 
shown.  Hobbs  v.  Tom  Reed  Gold  Mines 
Co.  43:  1 1 12,  129  Pac.  781,  164  Cal.  497. 

(Annotated) 

Preferred    stocklioldeTs. 

Rights  of  preferred  stockholders  in  divi- 
dends, see  infra,  296-299. 

Making  preferred  stock  nonvoting,  see  infra, 
383,  384. 

Preference  to,  in  case  of  insolvency,  see  in- 
fra, 407-410. 

Deprivation  of  property  of,  without  duo 
process  of  law,  see  Constitutional 
Law,  442. 


CORPORATIONS,  V.  e,  1. 


713 


Right  of  holder  of  preferred  stock  to  have 
concern  placed  in  hands  of  receiver,  see 
Receivers,  15. 
255.  Upon  dissolution  of  a  solvent  corpo- 
ration organized  under  an  act  authorizing 
the  creation  of  two  or  more  kinds  of  stock, 
with  such  preferences  as  may  be  stated  or 
expressed  in  the  certificate  of  incorporation, 
whose  certificate  of  incorporation  provided 
for  the  creation  of  preferred  stock,  and 
that  the  holders  thereof  were  to  receive 
a  fixed  yearly  dividend  before  any  dividend 
should  be  set  apart  or  paid  on  the  general 
stock,  the  preferred  stockholders  are  entitled 
only  to  the  preference  set  forth  in  the  cer- 
tificate of  incorporation,  and  cannot  claim 
from  the  surplus  the  par  value  of  their 
shares  in  preference  to  the  common  share- 
holders, since  they  are  bound  by  the  pref- 
erences made  in  such  certificate.  Lloyd  v. 
Pennsylvania  Electric  Vehicle  Co.  (N.  J. 
Krr.  &  App.)  21:  228,  72  Atl.  16,  75  N.  J. 
Eq.  263.  (Annotated) 

Minerity   stockholders. 
Secret  division  by  bridge  company,   among 
portion    of    railroads    using   bridge,    of 
funds    accumulated    by    excessive   tolls, 
see  Bridge  Company. 
Taking   minority   stock   under   eminent   do- 
main,  see   Constitutional  Law,   788; 
Eminent  Domain,  18. 
Injunction    against   dissolution   of   corpora- 
tion  at  suit   of   minority   stockholders, 
see  Injunction,   241. 
Effect  of  laches  on  rights  of,  see  Limitation 

of  Actions,  71. 
Appointment  of  receiver  at  suit  of  minority 

stockholders,  see  Receivers,  13,  14. 
See  also  supra,  42,  43,  75;   infra,  263,  265, 
385,  395;  V.  e,  2. 

256.  The  majority  stockholders  of  a  min- 
ing corporation  may,  against  the  consent  of 
the  minority,  sell  all  its  property  for  the 
purpose  of  terminating  the  existence  of 
the  corporation ;  at  least,  if  the  property 
is  not  necessary  to  the  continued  existence 
of  the  corporation,  so  that  its  sale  will  not 
necessarily  terminate  such  existence.  Ma- 
ben  V.  Gulf  Coke  &  Coal  Co.  35:  396,  55 
So.  607,  173  Ala.  259.  (Annotated) 

257.  The  officers  of  a  corporation  who 
after  executing  to  one  of  their  number  a 
mortgage  to  secure  its  creditors,  organize 
another  corporation  to  take  over  the  prop- 
erty under  a  mortgage  foreclosure,  cannot, 
after  giving  minority  stockholders  to  under- 
stand that  their  stock  will  be  protected,  and 
permitting  them  to  participate  in  meetings 
of  the  new  corporation,  refuse  to  recognize 
the  stock.  Sparrow  v.  E.  Bement  &  Sons, 
10:  725,  105  N.  VV.  881,  142  Mich.  441. 

( Annotated ) 

258.  A  minority  stockholder  of  a  corpora- 
tion which  has  secured  an  injunction 
against  organized  labor  to  prevent  unlaw- 
ful boycott  out  of  which  is  alleged  to  have 
arisen  a  claim  for  damages  under  the  Sher- 
man anti-trust  act  cannot  prevent  the  di- 
rectors from  abandoning  the  claim,  and 
agreeing  with  the  labor  organizations  to 
maintain  union  hours  and  wages  in  con- 
sideration of  the  withdrawal  of  their  hos- 
Digest  1-52  L.R.A.(N.S.) 


tility  to  it.  Post  v.  Buck's  Stove  &  Range 
Co.  43:  498,  200  Fed.  918,  214  C.  C.  A.  918. 

(Annotated) 

259.  The  holders  of  a  majority  if  the 
stock  of  a  corporation  cannot  compel  dis- 
senting minority  holders  of  full -paid  stock 
to  make  additional  contributions  to  the  cor- 
poration for  corporate  purposes,  when,  by 
the  terms  of  the  original  agreement,  such 
contributions  cannot  be  exacted.  Garey  v. 
St.  Joe  Min.  Co.  12:  554,  91  Pac.  369,  32 
Utah,   497. 

260.  A  sale  of  the  corporate  property  to 
a  single  holder  of  the  majority  of  the 
stock,  by  authorization  of  the  board  of  di- 
rectors at  the  annual  meeting  of  the  stock- 
holders, is  voidable  at  the  election  of  the 
minority  of  the  stockholders,  where  the  pur- 
chase price,  although  amounting  to  the  fair 
value  of  the  property,  was  less  than  could 
have  been  obtained  for  it  from  a  stock- 
holder. Wheeler  v.  Abilene  Nat.  Bank  BIdg. 
Co.  16:  892,  159  Fed.  391,  89  C.  C.  A.  477. 

(Annotated) 

261.  The  court,  on  setting  aside  a  void- 
able sale  of  the  property  of  a  corporation, 
made  in  pursuance  of  the  authority  of  the 
board  of  directors  to  the  holder  of  a  ma- 
jority of  the  stock,  for  a  smaller  amoimt 
than  could  have  been  obtained  from  the 
complainant  stockholder,  may  condition  its 
decree  of  avoidance  by  a  requirement  that 
the  complainant  shall  bid  and  deposit  an 
amount  equal  to  the  amount  paid  at  the 
sale  and  the  expenses  of  a  master's  sale,  to 
be  applied  in  payment  for  the  property  in 
case  no  one  bids  more,  or  in  case  the  de- 
positor is  the  highest  bidder.  Wheeler  v. 
Abilene  Nat.  Bank  Bldg.  Co.  16:  892,  159 
Fed.  391,  89  C.  C.  A.  477. 

262.  The  act  of  a  majority  of  the  direct- 
ors of  a  corporation  in  voting  reasonable 
salaries  to  certain  of  their  number  for 
services  performed  for  the  corporation, 
while  Toidable,  may  be  ratified  by  a  meet- 
ing of  the  stockholders,  against  the  pro- 
test of  minority  members,  although  the  di- 
rectors, including  those  whose  salary  is  in- 
volved, as  stockholders,  vote  for  the  ratifi- 
cation. Russell  V.  Henry  C.  Patterson  Co. 
36:  199,   81    Atl.   136,   232   Pa.   113. 

(Annotated) 
Fiduciary  relation. 

263.  The  holder  of  a  majority  of  the 
stock  of  a  corporation  stands  in  a  fiduciary 
relation  to  the  holders  of  the  minority  of 
the  stock,  because  he  has  a  community  of 
interest  with  them  in  the  same  property, 
and  because  they  can  act  and  contract  in 
relation  to  the  corporate  property  only 
through  him.  Wheeler  v.  Abilene  Nat.  Bank 
Bldg.  Co.  16:  892,  1.59  Fed.  391,  89  C.  C.  A. 
477. 

264.  The  power  of  a  single  holder  of  the 
majority  of  the  stock  of  a  corporation,  to 
control  and  direct  the  action  of  the  corpo- 
ration, devolves  upon  him  the  correlative 
duty  to  the  holders  of  the  minority  of  the 
stock  to  exercise  gootl  faith,  care,  and  dili- 
gence to  make  the  corporate  property  pro- 
duce the  largest  possible  amount,  to  pro- 
tect the  interest  of  the  minority  stockhold- 


714 


CORPORATIONS,  V.  e,  2. 


ers,  and  to  secure  and  deliver  to  them  their 
just   proportion   of   the   income  and   of   the 
proceeds  of  the  property.     Wheeler  v.  Abi- 
lene Nat.  Bank  Bldg,  Co.  i6:  892,  159  Fed. 
391,  89  C.   C.  A.  477. 
On  increase  of  stock. 
Damages   to   which   stockholder   whose   por- 
tion   of    increase    of    stock    is    sold    to 
stranger  is  entitled,  see  Damages,  108. 
Relative  rights  of  life  tenants  and  remain- 
dermen as  to  stock  right,  see  Life  Ten- 
ants, 21-24. 

265.  A  stockholder  in  a  corporation  has  a 
right,  upon  the  increase  of  stock  to  be  sold 
for  money,  to  subscribe  for  a  proportion  of 
the  new  stock  at  the  price  fixed  for  its  is- 
suance, equal  to  that  which  his  former  hold- 
ings bear  to  the  former  issues,  of  which  he 
cannot  be  deprived  by  the  officers  of  the 
corporation  and  the  majority  stockholders. 
Stokes  V.  Continental  Trust  Co.  12:  969,  78 
N.  E.  1090,  186  N.  Y.  285.  (Annotated) 

266.  A  stockholder  in  a  corporation  who  is 
entitled  to  a  share  of  an  increase  of  stock 
saves  his  rights  by  protesting  against  the 
sale  of  it  to  another,  without  making  a  de- 
mand for  his  stock  and  tender  of  the  price. 
Stokes  V.  Continental  Trust  Co.  12:  969,  78 
N.  E.  1090,  186  N.  Y.  285. 

267.  Before  the  portion  of  an  increase  of 
corporate  stock  to  which  an  existing  stock- 
holder is  entitled  can  be  sold  to  a  stranger 
against  the  stockholder's  protest,  even  when 
the  stranger  has  offered  to  pay  for  it  above 
par,  the  directors  must  offer  it  to  the  stock- 
holder at  the  price  bid.  Stokes  v.  Conti- 
nental Trust  Co.  12:  969,  78  N.  E.  1090,  186 
N.  Y.  285. 

268.  A  corporation  which,  against  the  pro- 
test of  a  stockholder,  sells  the  portion  of  an 
increase  of  stock  to  which  he  is  entitled  to  a 
stranger,  is  liable  to  him  for  the  damages 
which  he  actually  sustains.  Stokes  v.  Con- 
tinental Trust  Co.  12:  969,  78  N.  E.  1090, 
186  N.  Y.  285. 

2.  Actions   by. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Action  to  dissolve  corporation,  see  infra, 
395,  396,  398. 

Restoration  of  benefits  received  as  condi- 
tion precedent  to  action  by  stockholders, 
see  Action  or  Suit,  26. 

Nature  of  action  by  stockholder,  see  Action 
OB  Suit,  71. 

Multifariousness  of  bill  of  stockholder,  see 
Action  ob  Suit,  125. 

Action  by  stockholder  in  bank,  see  Banks, 
16. 

By  member  of  social  club,  see  Clubs,  7-9. 

Jurisdiction  of  action,  see  Courts,  46,  250. 

Estoppel  to  bring  action,  see  Estoppei.,  258. 

Running  of  limitations  aj?ainst  stockholder's 
right  of  action,  see  Limitation  of  Ac- 
tions, 150,  241. 

Necessary  parties  to  suit  by  stockholder, 
see  Parties,  177,  179. 

Pleading  in  action  by  stockholder,  see  Plead- 
ing, 173,  198,  411. 

Digest  1-52  L.R.A.(N.S.) 


Petition    for    appointment    of    receiver,    see 
Receivers,  13-15. 


riKCKlVEKH,     1,}- 

See  also  supra,  246. 


269.  A  stockholder  who  has  not  consented 
to.  or  acquiesced  in.  a  threatened  ultra  vire.i 
act  of  the  corporation,  may  enjoin  it.  Vic- 
tor V.  Louise  Cotton  Mills,  16:  1020,  61  S. 
E.  648,  148  N.  C.  107. 

270.  Equity  will  not  interfere  to  prevent 
the  confirmation  of  a  sale  by  the  majority 
stockholders  of  the  property  of  a  business 
corporation,  even  thougli  it  is  not  insolvent, 
if,  acting  without  fraud  and  upon  reason- 
able ground,  they  conclude  that  tlie  exigen- 
cies of  the  business  and  the  best  interests 
of  all  concerned  require  it,  at  least  if  the 
protesting  members  will  not  be  likely  to 
suffer  any  injury  for  which  there  is  no 
other  adequate  remedy.  Beidenkopf  v.  Des 
Moines  L.  Ins.  Co.  46:  290,  142  N.  W.  434, 
160  Iowa,  629. 

271.  A  dissenting  minority  stockholder  in 
a  corporation  cannot  take  advantage  of  the 
fact  that  the  majority  purchased  stock  of 
other  holders  for  less  than  its  value  before 
selling  all  the  assets  of  the  company,  un- 
less they  can  establish  a  general  scheme  to 
defraud  of  which  the  sale  attacked  is  mere- 
ly a  part.  Beidenkopf  v.  Des  Moines  L.  Ins. 
Co.  46:  290,  142  N.  W.  434,  160  Iowa,  629. 

272.  Any  member  of  a  mutual  insurance 
company,  suing  for  himself  and  otliers 
similarly  interested,  may  invoke  equity  ju- 
risdiction to  redress  or  prevent  any  wrong 
injuriously  affecting  the  property  rights  of 
the  corporation,  when  its  officers  will  not 
move  appropriately  to  that  end.  Huber  v. 
Martin,  3:  653,  105  N.  W.  1031,  127  Wis. 
412. 

273.  A  minority  stockholder  of  a  corpo- 
ration, at  whose  instance  tlie  directors  have 
instituted  an  action  in  the  name  of  the 
corporation  against  a  lessee  of  its  property 
for  an  accounting,  cannot  maintain  a  suit 
in  another  court  of  co-ordinate  jurisdiction 
to  secure  the  accounting  and  to  enjoin  the 
prosecution  of  the  former  suit,  although  the 
directors  are  unfit  to  manage  r  id  conduct 
the  suit.  Gray  v.  South  &  N.  A.  R.  Co. 
11:  581,  43   So.   859,   151   Ala.  215. 

( Annotated ) 

274.  The  holding  of  shares  of  stock  in  a 
corporation,  issued  and  sold  as  full-paid 
stock,  though  for  a  sum  less  than  its  par 
value,  may  maintain  an  action  to  protect 
such  rights  as  accrue  to  him  as  a  stockhold- 
er by  reason  of  the  fraudulent  issue  and 
transfer  of  corporate  stock,  since  the  agree- 
ment between  the  holder  and  the  corporation 
that  his  stock  shall  be  considered  and  treat- 
ed as  paid  in  full  is  not  void,  but  voidable 
only  as  to  creditors  of  the  corporation. 
Shaw  v.  Staight,  20:  1077,  119  N.  W.  951, 
107  Minn.  152.  (Annotated) 

275.  A  stockholder  of  a  railroad  company 
cannot  maintain  an  action  to  forfeit  a  lease 
of  its  property  because  of  a  breach  by  the 
lessee  of  a  covenant  not  to  raise  freight 
rates.  Hill  v.  Atlantic  &  N.  C.  R.  Co.  9: 
606,  55  S.  E.  854,  143  N.  C.  530. 

276.  It  is  fraudulent  for  the  management 


CORPORATIONS,  V.  e,  3. 


715 


of  a  corporation  to  permit  its  real  estate 
of  great  value  to  be  sold  under  execution 
for  a  nominal  sum,  when  there  are  funds 
in  their  possession  sufficient  to  pay  the 
judgment,  and  the  corporation  dissolved  for 
the  purpose  of  destroying  the  value  of  the 
stoci-c  of  a  minority  stockholder,  which  will 
give  him  a  right  of  action  therefor.  Flem- 
ing V.  Warrior  Copper  Co.  51 :  99,  136  Pac. 
273,  15  Ariz,  1. 

277.  A  statute  limiting  the  time  for 
bringing  actions  to  recover  corporate  stock 
sold  for  a  delinquent  assessment  upon  the 
ground  of  irregularity  of  the  assessment 
has  no  application  to  void  assessments. 
Chenev  v.  Canfield,  32:  16,  111  Pac.  92,  158 
Cal.  342. 

Persons    acquiring     stock     after    acts 
complained  of. 

278.  A  stockholder  may,  in  the  absence 
of  special  circumstances,  maintain  an  ac- 
tion on  behalf  of  the  corporation  for  the 
benefit  of  himself  and  all  other  stockhold- 
ers, to  set  aside  an  improper  transaction 
consummated  at  the  expense  of  the  corpora- 
tion, sucli  as  the  exchange  of  capital  stock 
for  that  of  another  corporation,  although 
it  was  completed  before  he  acquired  his 
stock.  Pollitz  V.  Gould,  38:  988,  94  N.  E. 
1088,  202  N.  Y.  11.  (Annotated) 
Effort  t«  procure  action  by  corpora- 
tion. 

279.  Minority  stockholders  may  maintain 
an  action  on  behalf  of  the  corporation  to 
compel  directors  to  reimburse  the  corpora- 
tion for  loss  occasioned  to  it  by  their  cir- 
culation of  a  libel,  where  those  in  control 
of  the  corporation's  affairs  refuse  to  act. 
Hill  v.  Murphy,  40:  1102,  98  N.  E.  781,  212 
Mass.   1. 

280.  A  stockholder  of  a  corporation  can- 
not, without  demand  on  the  corporation  and 
its  directors,  maintain  an  action  against 
directors  who  are  alleged  to  have  fraudu- 
lently failed  to  enforce  contracts  in  favor 
of  the  corporation  and  to  protect  its  prop- 
erty, if  defendants  are  minority  directors, 
and  no  collusion  with  the  majority  is 
shown.  Kelly  v.  Thomas,  51:  122,  83  Atl. 
307,  234  Pa.  419. 

281.  Demand  on  a  corporation  and  its 
management  to  bring  suit  to  recover  cor- 
poration property  which  had  been  trans- 
ferred to  another  corporation  is  not  neces- 
sary to  sustain  a  suit  by  minority 
stockholders,  where  the  managers,  Avho  had 
complete  control  of  the  affairs  of  the  corpo- 
ration, are  shown  to  have  been  hostile  to 
plaintiffs,  and  to  have  acted  upon  a  pre- 
concerted plan  to  accomplish  the  result 
complained  of.  Fleming  v.  Warrior  Copper 
Co.  51:99.  136  Pac.  273,   15  Ariz.   1. 

(Annotated) 

282.  Absence  of  response  within  the  time 
specified  by  the  directors  of  a  corporation 
to  a  notification  by  stockholders  that,  if 
they  do  not  institute  a  proceeding  to  recover 
stock  alleged  to  have  been  fraudulently  is- 
sued by  the  corporation,  the  stockholders 
will  do  so,  is  sufficient  to  justify  the  stock- 
holders' suit,  and  it  is  not  necessary  to 
show  notice  to  the  body  of  stDckholders 
Digest   1-52  L.R.A.(N.S.) 


collectively,  and  refusal  by  them  to  act. 
Continental  Securities  Co.  v.  Belmont,  51: 
112,  99  N.  E.  138,  206  N.  Y.  7.    (Annotated) 

283.  A  request  of  the  managing  ofliicers 
of  a  corporation  to  institute  an  action  to 
set  aside  and  cancel  a  fraudulent  issue  of 
corporate  stock,  and  their  refusal,  is  suffi- 
cient, without  a  request  to  other  stockhold- 
ers to  commence  such  a  suit,  to  enable  an 
individual  stockholder  to  maintain  a  suit 
therefor,  since  such  injury  and  the  conse- 
quent cause  of  action  is  one  that  accrues  to 
the  stockholders,  and  not  to  the  corporation 
as  such.  Shaw  v.  Staight,  20:  1077,  119  N. 
W.  951,  107  Minn.  152. 

284.  Where  Ihe  officers,  of  whose  mis- 
management and  misconduct  a  plaintiff 
stockholder  complains,  are  in  control  of  the 
corporation,  both  by  being  the  officers  there- 
of and  the  holders  of  a  majority  of  the 
stock,  it  is  not  necessary  for  a  complaining 
stockholder  to  show  as  a  condition  neces- 
sary to  maintain  his  suit  that  he  first  made 
demand  on  said  officers  to  proceed  on  behalf 
of  the  corporation  to  remedy  the  wrongs 
complained  of.  Exchange  Bank  v.  Bailey, 
39:  1032,  116  Pac.  812,  29  Okla.  246. 

3.  Right  to  inspect   hooks. 

(See   also   same   heading  in  Digest   L.R.A. 
1-10.) 

Right  of  director  to  inspect,  see  supra,  131. 
Mandamus  to  compel,  see  Mandamus,  65- 

69,  108. 
Of   municipal    corporation,    see   Municipal 

Corporations,  II.  i, 

285.  A  holder  of  corporate  stock  which 
has  no  market  value,  which  he  was  forced 
to  acquire  for  self-protection,  and  which  he 
desires  to  sell,  is  entitled  to  inspect  the 
books  of  the  corporation  for  the  purpose 
of  ascertaining  its  value.  State  ex  rel. 
Brumley  v.  Jessup  &  Moore  Paper  Co. 
30:  290,  77   Atl.   16,   1   Boyce    (Del.)    379. 

286.  A  proper  purpose  need  not  be  shown 
to  entitle  a  stockholder  to  inspect  the  books 
of  a  corporation,  under  a  statute  providing 
that  they  shall  be  open  at  all  reasonable 
times  to  the  inspection  of  persons  interested, 
who  may  take  copies  of  such  portions  as 
concern  their  interest.  White  v.  Manter, 
42:  332,  84  Atl.  890,  109  Me.  408. 

( Annotated ) 

287.  Under  a  statute  providing  that  all 
books  of  any  corporation  shall  at  all  rea- 
sonable hours  be  subject  to  the  inspection 
of  any  bona  fide  stockholder  of  record,  such 
stockholder  has  a  right  to  inspect  the  books, 
which  may  be  enforced  by  mandamus,  al- 
though it  is  for  the  purpose  of  instituting 
litigation  against  it  and  giving  it  adverse 
notoriety,  which  will  have  a  tendency  to  be 
detrimental  to  its  business,  although  the 
statute  provides  for  punishing  officers  who 
refuse  to  permit  an  inspection  by  a  stock- 
holder "lawfully  demanding"  it.  Kimball 
V.  Dern,  35:  134,  116  Pac.  28,  39  Utah,  181. 

288.  That  a  stockholder  seeking  to  com- 


716 


CORPORATIONS,  V.  e,  4. 


pel  the  corporation  to  permit  him  to  exam- 
ine its  books  to  protect  his  interests  is  also 
a  stockholder  in  a  rival  corporation  is  not 
sufficient  to  deprive  him  of  the  right  to  the 
relief  sought.  Kuhback  v.  Irving  Cut  Glass 
Co.  20:  185,  69  Atl.  981,  220  Pa.  427. 

(Annotated) 

289.  A  corporation  cannot  deprive  its 
stockholder  of  the  right  to  inspect  its  books 
by  offering  to  furnish  hira  abstracts  of  them 
or  to  permit  an  inspection  by  an  expert  to 
be  selected  by  it  and  him.  Kuhback  v.  Ir- 
ving Cut  Glass  Co.  20:  185,  69  Atl.  981,  220 
Pa.  427. 

290.  A  corporation  cannot  deprive  its 
stockholder  of  the  right  to  irtspect  its  books 
for  the  protection  of  his  interests  by  offer- 
ing to  purchase  his  stock  at  a  price  fixed  by 
it.  Kuhback  v.  Irving  Cut  Glass  Co.  20: 
185,  69  Atl.  981,  220  Pa.  427. 

291.  A  by-law  of  a  corporation  making 
the  right  of  a  stockholder  to  inspect  its 
books  absolutely  dependent  upon  the  discre- 
tion of  its  directors,  and  denying  all  right 
to  make  extracts  from  them,  is  unreason- 
able and  void.  State  ex  rel.  Brumley  v. 
Jessup  &  Moore  Paper  Co.  30:  290,  77  Atl. 
16,  1  Boyce  (Del.)  379.  (Annotated) 

4.  Dividends;  earnings. 

iSee  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Dividends  illegally  declared  by  directors, 
see  supra,  165.  ' 

Validity  of  guaranty  of  dividends  by  corpo- 
ration, see  Contracts,  577. 

Jurisdiction  of  suit  by  trustee  in  bank- 
ruptcy to  set  aside  dividends,  see 
Courts,  23. 

As  assets  of  decedent's  estate,  see  Exec- 
utors AND  Administrators,  83. 

Relative  rights  of  life  tenants  and  remain- 
dermen, see  Life  Tenants,  II.  b. 

See  also  supra,  211;  infra,  303,  304. 

292.  It  is  not  optional  with  the  directo- 
rate of  life  insurance  companies  not  purely 
stock  companies  whether  they  will  declare 
dividends  or  to  what  extent,  of  the  so- 
called  surplus.  United  States  L.  Ins.  Co. 
v.  Spinks,  13:  1053,  96  S.  W.  889,  126  Ky. 
405. 

203.  A  resolution  of  a  corporation  oi'gan- 
ized  to  take  over  a  business,  for  the  pur- 
chase price  of  which  stock  is  issued,  that 
any  shrinkage  in  the  ast^ets  shall  be  made 
good  out  ofdividends  declared,  is  not  bind- 
ing on  bona  fide  purchasers  of  the  stock 
without  notice,  although  the  stock  was  is- 
sued subsequently  to  and  pursuant  to  the 
resolution.  Bankers'  Trust  Co.  v.  McCloy, 
AT'  333.   159  S.  W.  205,  109  Ark.  160. 

294.  The  question  of  what  is  profit  avail- 
able for  dividends  depends  upon  the  result 
of  the  whole  accounts  fairly  taken  for  the 
year,  capital,  as  well  as  profit  and  loss; 
and  although  dividends  may  be  paid  out  of 
earned  profits  in  proper  cases,  notwithstand- 
ing a  depreciation  of  capital,  a  realized 
Digest  1-52  L.R.A.(N.S.) 


accretion  to  the  estimated  value  of  one  item 
of  capital  assets  cannot  be  deemed  to  b« 
profit  divisible  amongst  the  shareholders 
without  a  reference  to  the  result  of  the 
whole  accounts  fairlv  taken.  Foster  v.  New 
Trinidad  Lake  Asphalt  Co.  Ltd.  1.  B.  R.  C. 
959,  [1901]  1  Ch.  208.  Also  Reported  in  70 
L.  J.  Ch.  N.  S.  123,  49  Week.  Rep.  119,  17 
Times  L.  R.  89,  8  Manson,  47. 

(Annotated) 

295.  The  amount  realized  from  a  debt 
forming  part  of  the  original  capital  assets 
of  a  company,  but  which  has  not  been 
treated  on  the  balance  sheet  as  an  asset 
but  carried  to  the  profit  and  loss  account, 
cannot  be  regarded  in  the  nature  of  an  un- 
expected profit  and  divisible  accordingly 
amongst  the  share  holders.  Foster  v.  New 
Trinidad  Lake  Asphalt  Co.  Ltd.  1  B.  R.  C. 
959,  [1901]  1  Cli.  208.  Also  Reported  in 
70  L.  J.  Ch,  N.  S.  123,  49  Week.  Rep.  119, 
17  Times  L.  R.  89,  8  Manson,  47. 
On  preferred  stock. 
See  also  supra,  61. 

29().  A  surplus  of  capital  remaining  upon 
the  reduction  of  the  capital  stock  of  a  corpo- 
ration because  of  business  losses  cannot  be 
used  to  satisfy  the  claims  of  preferred  stock- 
holders to  arrears  of  dividends  which  have 
accrued,  under  an  agreement  to  pay  them  a 
certain  percentage  from  accumulated  prof- 
its, which  shall  be  cumulative,  arrears  to 
bear  interest  from  the  time  they  became  due. 
Roberts  v.  Roberts- Wicks  Co.  3:  1034,  77 
N.  E.  13,  184  N.  Y.  257.  (Annotated) 

297.  The  reduction,  because  of  business 
losses,  of  the  preferred  stock  of  a  corpora- 
tion, distributed  ratably  among  its  holders, 
does  not  affect  t.  3  right  of  a  holder,  when 
profits  are  subsequently  earned,  to  receive 
the  deferred  dividends  upon  the  amount  of 
his  original  holding  up  to  the  time  of  the  re- 
duction, where  his  contract  pi-ovided  that 
the  dividends  on  his  stock  should  be  cumu- 
lative, deferred  dividends  to  bear  interest 
from  the  time  that  they  became  due. 
Roberts  v.  Roberts- Wicks  Co.  3:  xo:-t4,  77 
N.  E.  13,  184  N.  Y.  257. 

298.  Holders  of  preferred  stock  in  a  cor- 
poration have,  in  the  absence  of  a  stipula- 
tion in  the  contract  to  the  contrary,  a  right 
to  share  in  all  profits  distributed,  after  the 
common  stock  has  received  an  amount  equal 
to  the  stipulated  dividend  on  the  preferred 
stock.  Sternbergh  v.  Brock,  24:  1078,  74 
Atl.  166,  225  Pa.  279.  (Annotated) 

299.  In  determining  the  question  whether 
or  not  custom  has  destroyed  the  right  of 
holders  of  preferred  stock  in  a  corporation 
to  share  equally  with  those  of  common  stock 
in  distribution  of  profits  after  the  dividends 
on  common  stock  equal  those  on  the  pre- 
ferred, the  par  value  of  the  common  stock, 
and  not  the  amount  paid  in  upon  it,  should 
be  considered,  so  that,  if  the  dividends  on 
the  par  value  have  not  exceeded  those  on 
the  preferred  stock,  it  is  immaterial  that, 
if  reckoned  on  the  amount  paid  in.  they  have 
greatly  exceeded  them.  Sternbergh  v.  Brock:, 
24:  1078,  74  Atl.  166,  225  Pa.  279. 


CORPORATIONS,  V.  f,  1. 


7i: 


/.  Liability  of  shareholders. 
1.  In  general. 

(See  also   same   heading   in  Digest   L,R.A. 

1-10.) 

Liability  of  promoters,  see  supra,  177-187. 

Nature  of  action  by  one  stockholder  to 
compel  others  to  compensate  him  for 
labor  performed,  see  Action  or  Suit, 
71. 

Right  of  action  against  stockholders  for 
inducing  suicide  of  officer  of  corpo- 
ration, see  Case,  3. 

Liability  of  stockholder  in  bank,  see  Banks, 
17. 

Right  of  trustee  in  bankruptcy  to  enforce, 
see  Bankruptcy,  54. 

Effect  of  discharge  of  corporation  in  bank- 
ruptcy on,  see  Bankruptcy,  172. 

Liability  for  payment  of  corporate  bonds, 
see  Bonds,  72. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  88,  89. 

Constitutionality  of  exemption  from  stock- 
holder's liability,  see  Constitutional 
Law,  206. 

Self-executing  provision  as  to,  see  Consti- 
tutional Law,  31. 

Impairment  of  obligation  as  to,  see  Consti- 
tutional Law,  807-810. 

Oral  promise  by  shareholder  to  pay  debt  of 
corporation,   see   Contracts,    228,   229. 

State  court  following  decision  of  Federal 
court  as  to,  see  Courts,  311. 

Estoppel  to  deny  liability  as,  see  Estop- 
pel, 196. 

Conclusiveness  of  judgment  discharging  sub- 
scriber to  stock  of  a  corporation  as 
garnishee  for  its  debt,  see  Judgment, 
160. 

Conclusiveness  of  judgment  of  dismissal,  see 
Judgment,  108. 

Stockholders  as  parties  defendant,  see  Par- 
ties, 179. 

Setting  off  judgment  against  stockholder,  in 
action  on  corporate  bonds,  see  Set-Off 
AND  Counterclaim,  33. 

300.  A  stockholder  of  a  corporation,  by 
his  subscription  for  stock,  or  by  his  ac- 
ceptance of  it,  agrees  with  the  corporation 
and  its  creditors  that  he  will  perform  the 
obligations  and  discharge  the  duties  im- 
posed upon  a  stockholder  by  the  Constitu- 
tion, the  statutes,  and  the  law  then  in  force; 
and  his  liability  to  creditors  springs  from 
that  contract.  Harrison  v.  Remington 
Paper  Co.  3:  954,  140  Fed.  385,  72  C.  C.  A. 
405. 

301.  The  shareholders  of  a  corporation 
and  not  its  creditors,  must  bear  the  loss  oc- 
casioned by  loss  of  assets  due  to  tlie  miscon- 
duct of  the  receiver.  Flynn  v.  American 
Banking  &  T.  Co.  ig:  428,'  69  Atl.  771,  104 
Me.  141. 

302.  The  statutory  liability  of  a  stock- 
holder for  the  debts  of  a  corporation  is  not 
affected  by,  whether  he  purchased  his  stock 
before  or  after  the  incurring  of  the  debt. 
Digest  1-52  L.R.A.(N.S.) 


Flynn  v.  American   Banking  &   T.   Co.   19: 
428,  69  Atl.  771,   104  Me.  141. 

303.  Stockholders  who  receive  dividends 
from  the  corporation  to  such  an  extent  as 
to  make  it  insolvent  may  be  compelled  to 
contribute  to  the  satisfaction  of  a  judgment 
in  a  garnishment  proceeding  against  the 
corporation  to  reach  a  debt  which  it  con- 
tracted before  the  dividends  were  paid. 
Montgomery  v.  Whitehead,  n:  230,  90  Pac. 
509,   40   Colo.   320. 

304.  The  payment  of  dividends  by  a  cor- 
poration to  its  stockholders  to  such  an  ex- 
tent as  to  render  it  insolvent  after  it  in- 
curs an  indebtedness,  althougli  in  accord- 
ance with  a  resolution  passed  prior  to  that 
time,  renders  the  stockholders  receiving 
them  liable  to  a  creditor  of  the  corpora- 
tion's creditor  who  recovers  a  judg- 
ment in  garnishment  proceedings  against 
the  corporation,  instituted  after  such  pay- 
ment, since  his  rights  relate  back  to  the 
inception  of  those  of  his  debtor.  ]\Iont- 
gomery  v.  Whitehead,  11:230,  90  Pac.  509, 
40   Coio.   320.  (Annotated) 

305.  Stockholders  of  a  corporation  which 
having  guaranteed  payment  of  principal  and 
interest  on  mortgages  sold  by  it,  became  in- 
solvent, after  which  defaulted  mortgages 
were  returned  to  and  collected  by  the  re- 
ceiver, cannot  object  to  his  placing  the  pro- 
ceeds in  the  general  funds  of  the  corpora- 
tion, rather  than  applying  them  to  the  in- 
dividual claims  of  the  purchasers  of  the 
mortgages,  for  the  first  time  after  the  money 
has  been  paid  out  and  the  proceeding  closed. 
Flynn  v.  American  Banking  &  T.  Co.  19: 
428,  69  Atl.  771,  104  Me.  141. 

306.  Permitting  a  corporation  to  continue 
in  business  and  exercise  powers  conferred 
by  an  amendment  to  its  charter  imposing  an 
additional  liability  on  stockholders  is  suffi- 
cient to  establish  their  acceptance  of  the 
amendment  after  contracts  have  been  made 
for  the  performance  of  which  their  liabili- 
ty is  sought  to  be  enforced.  Flynn  v.  Ameri- 
can Banking  &  T.  Co.  19:  428,  69  Atl.  771, 
104  Me.   141. 

307.  Persons  who  undertake  to  carry  on  a 
dentistry  business  in  violation  of  local  law, 
under  a  charter  obtained  in  another  state, 
are  personally  liable  for  injury  inflicted  by 
the  incompetence  of  their  employee  upon  a 
patron  who  submits  himself  to  treatment 
without  knowing  the  pretended  corporate 
character  under  which  such  persons  are  op- 
erating. Maridovnie  v.  Courtriglit,  6:  1003, 
142  Fed.  97,  73  C.  C.  A.  .321.      (Annotated) 

308.  Officers  and  stockholders  of  a  cor- 
poration who  are  not  engaging,  or  proposing 
to  engage,  in  business  on  their  own  account, 
are  not  subject  to  injunction  because  the 
corporation  has  made  unfair  use  of  its  cor- 
porate name  in  violation  of  the  rights  of 
another  corporation.  Hall's  Safe  Co.  v.  Her- 
ring-Hall-Marvin Safe  Co.  14:  1 182,  146  Fed. 
37,  76  C.  C.  A.  495. 

309.  The  mere  fact  that  a  railroad  com- 
pany owning  a  majority  of  the  stock  of  a 
bridge  company  and  also  of  another  railroad 
company  elects  officers  of  the  latter  to  the 


71& 


CORPORATIONS,  V.  f,  1. 


directorate  of  the  former  does  Hot  render 
it  liable  for  the  acts  of  such  officers  in 
wrongfully  misappropriating  the  earnings  of 
the  bridge  company  for  the  benefit  of  the 
railroad  of  which  thev  are  officers.  Dodd 
V.  Pittsburg,  C.  C.  &  St.  L.  R.  Co.  i6:  898, 
106  S.  W.  787,  127  Ky.  762. 

310.  One  of  several  railroad  companies 
which  entered  into  a  contract  for  the  joint 
use  of  a  bridge,  which,  through  its  officers, 
controls  the  bridge  company  and  agrees  to 
the  exaction  of  excessive  tolls  for  the  use 
of  the  bridge,  and  the  secret  division  among 
certain  of  the  contracting  parties  of  the  sur- 
plus thus  accumulated,  in  consequence  of 
which  a  judgment  is  recovered  against  the 
bridge  company  by  the  excluded  road  for  its 
share  of  such  surplus,  is  bound,  because  of 
its  wrongful  diversion  of  the  fund,  to  make 
good  to  the  bridge  company  the  whole 
amount  of  the  judgment,  where  the  other 
roads  which  shared  in  the  division  have  be- 
come insolvent.  Dodd  v.  Pittsburg,  C.  C.  & 
St.  L.  R.  Co.  16:  898,  106  S.  W.  787,  127  Ky. 
762.  (Annotated) 
On  paid-up  stock. 

Liability  of  pledgee,  see  supra,  239. 
Review  by   courts   of   question   of  necessity 

of,  see  Courts,  69. 
See  also  supra,  43,  213,  259;  infra,  351,  352. 

311.  The  legislature  may  provide  for  en- 
forcement of  an  assessment  against  the 
holder  of  bank  stock  to  make  good  im- 
paired capital  by  forfeiture  of  the  stock  or 
its  sale  to  the  highest  bidder.  Corbin  Bkg. 
Co.  v.  Mitchell,  31:  446,  132  S.  W.  426,  141 
Ky.   172.' 

312.  Where  a  corporation  which  is  not 
prohibited  by  a  statute  from  making  a  con- 
tiact  with  its  stockholders  that  paid-up 
stock  shall  be  nonassessable,  issues  a  certifi- 
cate of  stock  and  prints  thereon,  as  a  part 
thereof,  the  word  "nonassessable,"  such 
word  becomes  a  part  of  the  contract  between 
the  corporation  and  the  stockholders,  and, 
as  between  them,  may  be  relied  upon  and 
enforced  by  the  stockholder.  Wall  v.  Basin 
Min.  Co.  22:  1013,  101  Pac.  733,  16  Idaho, 
313. 

313.  A  constitutional  provision  that  dues 
from  private  corporations  shall  be  secured 
by  such  means  as  may  be  prescribed  by  law, 
but  that,  in  no  case,  shall  any  stockholder 
be  individually  liable  in  any  amount  over 
or  above  the  amount  of  stock  owned  by  him, 
relates  to  and  limits  the  personal  liability 
of  a  stockholder,  but  in  no  way  limits  the 
Dower  of  the  corporatiofi  to  make  assess- 
ments on  paid-up  stock,  and  to  subject  it 
to  sale  for  failure  to  pay  such  assessment. 
Wall  V.  Basin  Min.  Co.  22:  1013,  101  Pac. 
733,  16  Idaho,  313.  (Annotated) 

314.  The  levy  of  assessments  under  the 
statutes  ot  Idaho  against  paid-up  stock  is  a 
proceeding  in  rem,  by  which  the  stock  may 
be  sold,  but  no  personal  liability  attaches 
to  the  stockholder  for  any  deficiency  arising 
from  the  sale.  Wall  v.  Basin  Min.  Co.  22: 
1013,  101  Pac.  733,  16  Idaho,  313. 

315.  The  use  of  the  alternative  phrase, 
"assessments  or  instalments,"  in  Idaho  Rev. 
Codes,  §  2769,  subd.  7,  which  empowers 
Digest  1-52  Ii.R.A.(N.S.) 


a  corporation  to  admit  stockholders  or  mem- 
bers, and  to  sell  the  stock  or  shares  for  the 
payment  of  the  assessments  or  instalments, 
indicates  that  the  legislature  recognized  the 
distinction  between  instalments  and  assess- 
ments, and  intended  the  former  to  apply  to 
the  portion  of  unpaid  subscription,  and 
the  latter  to  demands  upon  fully  paid  stock, 
thereby  providing  for  assessments  upon 
paid-up  stock  as  well  as  assessments  for  un- 
paid portions  of  the  subscription.  Wall  v. 
Basin  Min.  Co.  22:  1013,  101  Pac.  733,  16 
Idaho,  313 

316.  An  assessment  can  be  legally  levied 
upon  the  capital  stock  of  a  corporation  by 
the  board  of  directors  only  at  a  regular 
meeting  of  the  board,  or  at  a  special  meet- 
ing thereof,  regularly  called.  Chenev  v. 
Canfield,  32:  16,  111  Pac.  92,  158  Cal.'342. 
In  de  facts  corporation. 

Estoppel  to  enforce  individual  liability  of 
stockholders,  see  Estoppex,  72. 

Burden  of  proving  that  parties  doing  busi- 
ness have  duly  incorporated,  see  Evi- 
dence, 314. 

317.  Corporators  failing  to  organize 
legally  are  not  individually  liable  as  part- 
ners, where  they  procure  a  charter  or  file 
articles  of  incorporation  under  an  enabling 
act,  securing  thereby  the  color  of  a  corpora- 
tion, believe  they  are  such,  and  use  the  sup- 
posed franchise  of  their  corporation,  to 
third  parties  who  deal  with  them  as  a 
corporation,  since  they  thereby  become  a 
de  facto  corporation  which  exempts  them 
from  individual  liability  to  parties  so  deal- 
ing with  them,  notwithstanding  defects  in 
their  incorporation.  Harrill  v.  Davis,  22: 
1 153,  168  Fed.  187,  94  C.  C.  A.  47. 

318.  Parties  who  associate  themselves  to- 
gether and  conduct  a  business  for  profit 
under  a  name  adopted  and  used  by  them  for 
that  purpose  are  liable  as  partners  for  the 
debts  thej'  incur  under  that  name,  even 
though  the  name  used  be  that  of  a  supposed 
corporation  which  they  have  attempted,  but 
failed,  to  organize  according  to  law.  Harrill 
v.  Davis,  22:  1153,  168  Fed.  187,  94  C.  C.  A. 
47. 

319.  Neither  the  execution  of  articles 
which  are  not  filed,  nor  statements,  nor  be- 
liefs of  the  promoters  that  thej'  are  a  corpo- 
ration, nor  the  treatment  of  themselves  by 
themselves  and  by  those  who  deal  with  them 
as  a  corporation,  nor  all  these  together,  will 
exempt  those  who  actively  conduct  a  busi- 
ness under  the  assumed  name  of  a  nonexist- 
ent corporation  from  individual  liability  for 
the  debts  they  incur.  Harrill  v.  Davis,  22: 
1 153,  168  Fed.  187,  94  C.  C.  A.  47. 

320.  A  charter  or  the  filing  of  articles  of 
incorporation  under  some  law.  and  user  of 
the  supposed  corporate  franchise  in  good 
faith,  are  indispensable  to  the  existence  of  a 
de  facto  corporation  which  will  exempt  from 
individual  liability  those  who  actively  con- 
duct it.  Harrill  v.  Davis,  22:  1153,  168  Fed. 
187,  94  C.  C.  A.  47. 

321.  Compliance  by  parties  who  associate 
themselves  together  and  conduct  a  business 
for  profit  under  a  supposed  corporate  name, 
with  the   statutes  authorizing   them   to  be- 


CORPORATIONS,  V.  f,  1. 


719 


come  a  corporation,  exempts  them  from 
other  individual  liability  than  that  pre- 
scribed by  such  laws,  for  debts  incurred 
after  such  compliance.  Harrill  v.  Davis, 
22:  1 153,  168  Fed.  187,  94  C.  C.  A.  47. 

322.  Under  an  enabling  statute  whicli  re- 
quires articles  of  incoiporation  to  be  filed 
in  two  places  as  a  condition  of  incorporation 
or  of  the  commencement  of  business,  in- 
corporators or  stockholders  remain  indi- 
vidually liable  unless  and  until  their 
articles  of  incorporation  are  filed  in  both 
places.  Harrill  v.  Davis,  22:  1153,  168  Fed. 
187,  94  C.  C.  A.  47. 

323.  Parties  who  associate  themselves 
together  and  conduct  a  business  for  profit 
do  not  become  a  corporation  de  facto  before 
they  file  their  articles  of  incorporation  in 
at  least  one  of  two  places  required  by  tlie 
enabling  statute,  to  such  an  extent  as  to 
exempt  themselves  from  individual  lia- 
bility, because  they  do  not,  before  that  time, 
secure  any  color  of  legal  organization  under 
any  charter  or  enabling  act.  Harrill  v. 
Davis.  22:  1 153,  168  Fed.  187,  94  C.  C.  A.  47. 
Iiiability    of   trustee. 

Right  of  trustee  to  be  indemnified  for  lia- 
bility, see  Contribution  and  Indemni- 
ty, 4. 

324.  A  trustee  who  permits  stock  to 
stand  on  the  register  of  the  corporation  in 
his  individual  name,  without  disclosing  the 
fact  of  the  trusteeship,  is  not  entitled  to  the 
benefit  of  a  provision  in  a  statute  creating 
a  stockholders'  liability,  that  no  person 
holding  stock  as  executor,  administrator, 
guardian,  or  trustee  shall  be  personally  sub- 
ject to  any  liability  as  a  stockholder.  Con- 
verse v.  Paret,  30:  1092,  77  Atl.  429,  228  Pa. 
156.  (Annotated) 

325.  One  cannot  avoid  his  statutory  lia- 
bility for  the  debts  of  the  corporation  by 
adding  the  word  "trustee"  to  his  name  as 
it  stands  upon  the  stock  books.  Flynn  v. 
American  Banking  &  T.  Co.  19:  428,  69  Atl. 
771,  104  Me.  141. 

For   Krhat    debts. 

Nature  of  action  by  stockholder  paying  debt 
to  compel  contribution  by  otlier  stock- 
holders, see  Action  or  Suit,  71. 

.327.  The  statutory  liability  of  stockhold- 
ers for  debts  of  the  corporation  extends  to 
interest  on  claims  beyond  the  time  the  af- 
fairs of  the  corporation  are  placed  in  the 
hands  of  a  receiver,  although  the  commis- 
sioner appointed  to  determine  the  claims  in 
the  receivership  proceedings  was  instructed 
to  allow  interest  to  the  date  of  the  receiver- 
ship. Flynn  v.  American  Banking  &  T.  Co. 
19:  428,  69  Atl.  771,  104  Me.  141. 

(Annotated) 

328.  The  fact  that  the  principal  of  the 
debt  of  a  corporation  has  been  paid  by  its 
receiver  out  of  its  assets  does  not  prevent 
the  maintenance  of  an  action  against  the 
stockholders  for  unpaid  interest,  under  a 
statute  making  them  individually  liable  for 
the  debts  of  the  corporation,  where  the  pay- 
ments by  the  receiver  were  not  accepted  in 
full  payment  of  the  corporate  debts,  but 
merely  as  dividends  thereon.  Flynn  v.  Ameri- 
Disest  1-52  Ii.R.A.(N.S.) 


can  Banking  &  T.  Co.   19:  428,  69  Atl.  771, 
104  Me.  141. 

329.  Voluntary  stopping  of  payment  by  a 
corporation  which  has  sold  mortgages  with 
a  guaranty  of  principal  and  interest  and  the 
sequestration  of  its  assets  deprives  it  of  the 
right  to  insist  on  a  demand  upon  it  for  pay- 
ment of  defaulted  mortgages  to  charge  it 
with  interest  on  the  demand;  and  there- 
fore stockholders  cannot  avoid  liability 
for  such  interest  in  actions  to  enforce  their 
statutory  liability  for  the  corporate  debts 
because  no  demand  was  made  upon  the  cor- 
poration for  payment.  Flynn  v.  American 
Banking  &  T.  Co.  19:  428,  69  Atl.  771, 
104  Me.   141. 

330.  A  creditor  of  a  corporation  cannot  be 
deprived  of  the  right  to  enforce  interest  on 
his  claim  against  stockholders  under  their 
statutory  liability  for  the  corporate  debts,  for 
the  period  covering  the  time  the  affairs  of 
the  corporation  are  being  wound  up  by  the 
receiver,  on  the  ground  that  it  would  be  a 
hardship  on  them  to  hold  them  liable  for  in- 
terest during  the  delays  of  administration  of 
the  estate.  Flynn  v.  American  Banking  & 
T.  Co.  19:  428,  69  Atl.  771,  104  Me.  141. 

331.  'ihe  liability  of  a  corporation  for  in- 
fringement of  a  patent  is  not  a  debt  con- 
tracted or  debt  existing,  within  the  mean 
ing  of  statutes  making  stockholders  and 
directors  of  the  corporation  liable  for  such 
debts  under  certain  conditions.  B.  F.  Avery 
&  Sons  V.  McClure,  22:  256,  47  So.  901,  94 
Miss.      172.  (Annotated) 

332.  The  reduction  to  judgment  of  a 
claim  against  a  corporation  for  infringement 
of  a  patent  does  not  make  it  a  debt  within 
the  meaning  of  a  statute  rendering  stock- 
holders and  directors  of  corporations  liable 
for  debts  contracted  by,  or  existing  on  the 
part  of,  the  corporation.  B.  F.  Avery  & 
Sons  V.  McClure,  22:  256,  47  So.  901,  94 
Miss.  172, 

333.  The  provision  of  Kan.  Gen.  Stat. 
1889,  §  1192  (repealed  in  1899),  authorizing 
the  owner  of  a  judgment  against  a  corpora- 
tion, upon  Avhich  an  execution  had  been  re- 
turned unsatisfied,  to  proceed  against  any 
of  the  stockholders,  and  hold  tliem.  liable 
thereon  to  the  extent  of  the  amount  of 
their  stock,  imposed  upon  stockholders  a 
liability  to  that  extent  for  the  payment  of 
corporate  obligations,  including  those 
founded  upon  tort.  Henley  v.  Myers, 
17:  779,  93  Pac.   168,  76  Kan.  723. 

334.  The  right  conferred  by  Kan.  Gen. 
Stat.  1889,  §  1192  (repealed  in  1899),  upon 
the  owner  of  a  judgment  against  a  corpora- 
tion upon  which  an  execution  had  been 
returned  unsatisfied,  to  proceed  against  any 
of  the  stockholders,  and  hold  them  liable 
to  the  extent  of  the  amount  of  their  stock, 
applied  to  judgments  founded  on  tort  as 
well  as  upon  contract,  although  elsewhere 
in  the  same  act  the  person  to  whom  the 
right  is  given  is  described  as  a  creditor  of 
the  corporation,  and  the  claim  against  it  as 
a  debt.  Henley  v.  Myers,  17:  779,  93  Pac. 
168,  76  Kan.  723. 

335.  The  word  "dues"  in  the  provision  of 
Kan.  Const,  art.  12,  §  2  (repealed  in  1906), 


720 


CORPORATIONS,  V.  f,  2,  3. 


declaring  that  "dues  from  corporations 
shall  be  secured  by  individual  liability  of 
the  stockholders  to  an  additional  amount 
equal  to  the  stock  owned  by  each  stock- 
holder," is  used  in  a  sense  broad  enough  to 
cover  a   judgment   rendered   against   a   cor- 

? oration    in   an    action    founded    upon    tort, 
lenley   v.   Myers,    17:  779,   93   Pac.    168,   76 
Kan.  723. 

330.  The  provisions  of  Kan.  Gen.  Stat. 
1901,  §§  1302,  1315,  now  repealed,  which  de- 
clared the  double  liability  of  stockholders  I 
to  be  an  asset  of  an  insolvent  corporation, 
and  authorized  the  appointment  of  a  re- 
ceiver to  enforce  it  for  the  benefit  of  cor- 
porate creditors,  protected  the  owner  of  a 
judgment  founded  on  tort,  as  well  as  claim- 
ants whose  demands  originated  in  contract. 
Henley  v.  Myers,  17:  779,  93  Pac.  168,  76 
Kan.  723. 

2.  Effect  of  transfer. 

(See  also   same   heading  in  Digest   L.R.A. 
1-10.) 

Liability  of  transferee. 

337.  One  who  purchases  stock  of  a  corpora- 
ration  which  is  not  fully  paid,  from  original 
subscribers,  including  the  president,  may 
be  held  liable  to  creditors  for  the  un- 
paid balance,  although  the  sellers  repre- 
sented that  the  stock  was  fully  paid,  and  he 
had  no  actual  knowledge  to  the  contrary, 
where  by  law  the  transfer  effects  a  sub- 
stitution of  the  transferee  for  the  original 
subscriber  upon  the  subscription  contract. 
Perkins  v.  Cowles,  30:  283,  108  Pac.  711, 
157  Cal.  625.  (Annotated) 

338.  The  statutory  liability  of  stockhold- 
ers of  a  corporation  rests  upon  persons 
holding  the  stock  as  collateral  security  for 
loans  to  the  real  owners,  where  they  ap- 
pear upon  the  stock  books  as  owners. 
Flynn  v.  American  Banking  &  T.  Co.  19: 
428,  69  Atl.  771,  104  Me.  141. 

339.  One  to  whom  corporate  stock  has 
been  transferred  as  collateral  security,  but 
who  appears  upon  the  books  of  the  corpora- 
tion as  the  general  owner  thereof,  is  liable  as 
a  stockholder  for  the  debts  of  the  corporation. 
Marshall  Field  &  Co.  v.  Evans,  Johnson, 
Sloan  Co.  19:  249,  118  N.  W.  55,  106  Minn. 
85. 

340.  One  to  whom  corporate  stock  has 
been  transferred  as  collateral  security,  the 
stock  being  so  registered  in  the  corporation 
record,  thereby  showing  his  true  relation 
thereto,  is  not  liable  as  a  stockholder  for 
the  debts  of  the  corporation.  Marshall  Field 
&  Co.  v.  Evans,  Johnson,  Sloan  Co.  19:  249, 
118  N.  W.  55,  106  Minn.  85.  (Annotated) 

341.  The  words,  "issued  for  collateral  se- 
curity for  note  of  even  date,"  writl!?h  upon 
the  printed  stub  of  a  certificate  of  stock  in 
the  stock  book  of  the  corporation,  sufficiently 
advise  creditors  of  the  conditions  and  terms 
upon  which  the  stock  is  held.  Marshall 
Field  &  Co.  v.  Evans,  Johnson,  Sloan  Co. 
19:  249,  118  N.  W.  55,  106  Minn.  85. 
Digest  1-52   I..R.A.(N.S.) 


Of  transferrer. 

Requiring  seller  of  stock  to  see  that  trans- 
fer is  filed  in  ofliee  of  Secretary  of  State, 
see  Constitutional  Law,  789. 

342.  A  creditor  of  a  corporation  may  pro- 
ceed in  equity  to  compel  paj'ment,  for  the 
satisfaction  of  his  claim,  of  stock  subscrip- 
tions which  have  been  canceled  upon  substi- 
tution therefor  of  the  obligation  of  a  known 
insolvent.  Hall  v.  Alabama  Terminal  &  Im- 
prov.  Co.  2:  130,  39  So.  285,  143  Ala.  464. 

343.  The  requirement  of  Kan.  Gen.  Stat. 
1901,  §  1283,  that  the  president  and  secre- 
tary of  a  corporation  shall  file  with  the  sec- 
retary of  state  a  statement  of  each  trans- 
fer of  stock  made  upon  the  books  of  the  cor- 
poration, and  that  no  transfer  of  stock 
shall  be  legal  or  binding  until  such  state- 
ment is  so  made,  imposes  upon  tliose  own- 
ing and  selling  corporate  stock  the  duty, 
in  order  to  relieve  themselves  of  liability 
for  the  debts  of  the  corporation,  of  taking 
some  further  step  if  necessary,  after  having 
caused  the  transfer  to  be  duly  entered  on 
the  books  of  the  company,  to  cause  the  pub- 
lic record  to  be  made.  Henlev  v.  Myers, 
17:  779,  93  Pac.   168,  76   Kan.  723. 

344.  Absence  of  the  stock  book  required 
by  statute  to  be  kept,  and  failure  to  record 
therein  a  stock  transfer,  will  not  continue 
the  double  statutory  liability  of  a  stock- 
holder who  in  good  faith  transfers  his  stock 
and  does  everything  believed  by  him  or  the 
officers  of  the  company  to  be  necessary  to 
perfect  the  transfer,  although  he  was  him- 
self a  director.  Bracken  v.  NicoU,  11:  818, 
99  S.  W.  920,  124  Ky.  628.  (Annotated) 

3.  For  unpaid  stock. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  payment  for  subscriptions,  generally, 

see  supra,  V.  b,  2. 
Liability   for   payment  of   corporate   bonds, 

see' Bonds,  72. 
Admissibility  of  evidence  that  note  given  for 

stock  was  given  on  certain  conditions, 

see  Evidence,  949,  1026. 
When  limitation  begins  to  run  on  unpaid 

subscription,    '^;'e    Limitation    of    Ac- 
tions, 141,  142. 
See   also   supra,    140,    326-336,    342;    infra, 

402. 

345.  The  purchaser  of  stock  in  a  corpora- 
tion, which  has  been  duly  organized  and  is 
a  going  concern  is  liable  to  the  corporation 
for  such  part  of  the  value  of  the  stock  so 
purchased  as  has  not  actually  been  paid  in 
cash  or  its  equivalent,  and  such  indebted- 
ness may  be  collected.  German  Mercantile 
Co.  V.  Wanner,  52:  453,  142  N.  W.  463,  25 
N.  D.  479. 

346.  One  receiving  stock  in  a  corpora- 
tion for  a  consideration  forbidden  by  the 
Constitution  is  liable  to  its  creditors  for 
the  face  value  of  his  shares.    O'Bear-Nester 


CORPORATIONS,  V.  f,  4. 


721 


Glass  Co.  V.  Antiexplo  Co.   i6:  520,   108   S.    of   1875    (Gen.   Stat.  p.  907)   and  its  stock- 
W.   967,   101   Tex.   431.  I  liolders,  to   the   effect  that   corporate   stock 

Calls.  I  shall  be  issued  to  them  without  receipt  by 

347.  The  term  "assessment,"  in  Idaho  j  the  company  of  money  or  property  equiva- 
Rev.  Code,  §  2750,  which  empowers  u  cor|/0-  j  lent  in  value  to  the  par  value  of  the  stock, 
ration  to  levy  and  collect  assessments  upon  I  is  void,  because  contrary  to  the  spirit  and 
the  subscribed  capital  stock  thereof  for  the  policy  of  the  act.  Easton  Nat.  Bank  v. 
purpose    of    paying    obligations,    conducting  ,  American    Brick    &    T.    Co.    (N.    J.    Err.    & 


business,  or  paying  debts,  after  one  fourth  of 
the  same  has  been  subscribed,  is  used  inter- 
changeably with  "call"  or  "instalment,"  and 
applies  to  portions  of  unpaid  subscription 
as  well  as  to  demands  upon  paid-up  stock. 
Wall  V.  Basin  Min.  Co.  22:  1013,  .JOl  Pac. 
733,  16  Idaho,  313. 
Fraud  as  defense. 

Reply  in  action  by  receiver  to  recover  sub- 
scription  to   stock,   see  Pleadino,   556. 

348.  One  who  extends  credit  to  a  corpora- 
tion with  knowledge  that  subscription  notes 
to  its  capital  stock  were  procured  by  fraud 
has  no  equity  superior  to  that  of  the  de- 
frauded subscriber;  and  therefore  the  sub- 
scription cannot  be  enforced  for  his  benefit. 
Marion  Trust  Co.  v.  Blish,  18:  347,  84  N.  E. 
814,    170   Ind.   686. 

349.  A  defense  of  fraud  in  procuring  a 
subscription  to  stock  of  a  corporation  can- 
not be  prevented  in  an  action  by  a  receiver 
on  the  subscription  note,  based  on  the  title 
of  the  corporation  thereto,  because  the  rights 
of  some  of  the  corporate  creditors  attached 
subsequently  to  the  making  of  the  note. 
Marion  Trust  Co.  v.  Blish,  18:  347,  84  N.  E. 
814,  170  Ind.  686.  (Annotated) 
Other  defenses. 

350.  Subscribers  to  the  stock  of  a  corpo- 
ration organized  under  the  Constitution  and 
laws  of  West  Virginia  cannot  avoid  liability 
to  pay  the  full  par  value  of  their  stock,  for 
the  purpose  of  paying  corporate  creditors, 
as  required  by  W.  Va.  Const,  art.  11,  §  2, 
by  inserting  in  the  articles  of  incorporation 
filed  in  the  office  of  the  secretary  of  state  a 
provision  that  the  stock  shall  be  sold  at  50 
cents  on  the  dollar,  and  when  that  is  paid 
the  stock  shall  be  issued  as  fully  paid  and 
nonassessable.  Security  Trust  Co.  v.  Ford, 
8:  263,  79  N.  E.  474,  75  Ohio  St.  322. 

(Annotated) 

351.  A  subscriber  to  stock  of  a  corpora- 
tio.i  whose  contract  provides  that,  upon  pay- 
ment of  a  portion  of  the  par  value  of  the 
stock,  it  sliall  be  issued  as  fully  paid  and 
nonassessable,  cannot,  under  the  trust  fund 
theory,  be  compelled  to  pay  in  for  the  bene- 
fit of  creditors  the  difl'erence  between  the 
contract  price  and  the  par  value.  South- 
worth  v.  Morgan,  51:  56,  98  N.  E.  490,  205 
N.  Y.  293.  (Annotated) 

352.  Under  the  general  corporation  act  of 
187.5  (Gen.  Stat.  p.  907,  §§  5,  54,  etc.)  a 
creditor's  knowledge  that  stock  was  improp- 
erly issued  as  "full  paid"  and  as  "issued  for 
property  purchased,"  when  the  fact  was 
otherwise,  is  not  sufficient  to  debar  him 
from  relief  against  the  recipients  of  the 
stock.  Easton  Nat.  Bank  v.  American  Brick 
&  T.  Co.  (N.  J.  Err.  &  App.)  8:  571,  64  Atl. 
917.   70   N.   J.   Eq.   732.  (Annotated) 

353.  An  agreement  between  a  corporation 
organized  under  the  general  corporation  act  '  Estoppel  to  enforce,  see  Estoppel,  83,  84. 
Dieest   1-52  L.R.A.(N.S.)  40 


App.)   8:  271,  64  Atl.  917,  70  N.  J.  Eq.  732. 
b.  StocTc  paid  for  in  property. 

(See   also   same   heading  in  Digest   L.R.A. 
1-70.) 

Issue  of  stock  in  payment  for  property  pur- 
chased, see  supra,   212-218. 

354.  A  corporation  whose  president,  who 
is  also  its  business  manager,  knows  at  the 
time  of  making  a  loan  on  behalf  of  the  cor- 
poration to  another  corporation  that  the 
stock  subscriptions  to  it  have  been  paid  '.n 
property  at  a  gross  overvaluation,  cannot 
hold  the  individual  subscribers  for  the  dif- 
ference between  the  subscription  and  the 
value  of  the  property  paid  in.  Lea  v.  Iron 
Belt  Mercantile  Co.  8:  279,  42  So.  415,  147 
Ala.  421. 
Good  faith  as  defense. 

355.  Stockholders  in  a  corporation  are 
accountable  to  its  creditors  to  the  extent  to 
which  the  value  of  the  property  transferred 
in  payment  for  stock  falls  short  of  its  par 
value,  irrespective  of  fraud,  either  actual 
or  constructive,  in  the  transaction.  Lantz 
v.  Moeller,  50:  68,  136  Pac.  687,  76  Wash. 
429. 


4.  Proceedings  to  enforce. 

(See   also   same   heading  in  Digest   L.R.A. 

1-10.) 

Divisibility  of  action  to  enforce,  see  Action 

OR  Suit,  102. 
Objection    that    defendant    stockholder    had 

no    right    to    appeal,    see    Appeal    and 

Error,  695. 
Sufficiency  of  record  on  appeal  in  action  to 

enforce  stockholder's   liability,   see  Ap- 
peal AND  Error,  263. 
Waiver  of  error  in  trial  court  in  action  to 

enforce  stockholder's  liability,   see   Ap- 
peal AND  Error,  820. 
Conflict  of  laws  as  to  statute  of  limitations 

governing     action,     see     Conflict     of 

Laws,  153. 
Impairment    of    obligation    of    contract    by 

statute  as  to,  see  Constitutionaj.  Law, 

807-810. 
Jurisdiction  to  enforce  liability  of  members 

of     mutual     assessment     company,     see 

Courts,  16;  Equity,  98,  99. 
Enforcement  in  Federal  court,  see  Coirts, 

276. 
Election    of    remedy    for    enforcement,    see 

Election  of  Remedies,  20. 
Jurisdiction  of  suit  on  stock   subscription, 

see  Equity,  45. 


722 


CORPORATIONS,  V.  f,  4. 


Relationship  to  corporation  which  will  dis- 
qualify juror  in  action  to  enforce,  see 
Jury,  70. 

When  limitations  begin  to  run,  see  Limita- 
tion OF  AcTio?JS,  151-153. 

When  action  is  barred,  see  Limitation  of 
Actions,  249. 

Removal  of  action  to  enforce  liability,  see 
Removal  of  Causes,  16. 

Effect  of  repeal  of  statute  prescribing  meth- 
od of  enforcing  stockholder's  liability, 
see  Statutes,  366,  367. 

356.  An  action  to  enforce  an  agreement 
to  take  stock  in  a  corporation,  which  shall 
not  be  binding  until  a  certain  amount  has 
been  subscribed,  may  be  maintained  in  the 
name  of  the  corporation,  although  the  de- 
fense is  that  the  conditions  had  not  been 
complied  with.  Stone  v.  Monticello  Constr. 
Co.  40:  978,  117  S.  W.  369,  135  Ky.  fi.59. 

357.  A  corporation  may  elect  to  waive  the 
sale  of  stock  for  an  unpaid  portion  of  a  sub- 
scription, and  proceed  by  action  to  recover 
the  amount  of  the  assessment  therefor, 
under  Idaho  Rev.  Codes,  §  2768.  Wall  v. 
Basin  Min.  Co.  22:  1013,  101  Pac.  733,  16 
Idaho,  313. 

358.  A  stockholder  of  an  insolvent  corpo- 
ration cannot  complain  that  suit  to  enforce 
his  unpaid  stock  subscriptions  was  not 
brought  in  a  court  where  he  could  bring  in 
other  stockholders  and  compel  contribution 
by  them  if  they  were  insolvent  so  that  they 
could  not  have  been  made  to  contribute  even 
if  they  were  brought  into  the  proceeding. 
Edwards  v.  Schillinger,  33:  895,  91  N.  E. 
1048.  245  111.  231. 

359.  A  cause  of  action  to  enforce  the 
double  liabilitj'  of  a  stockholder  by  motion 
in  the  event  of  an  unsatisfied  execution  upon 
a  judgment  against  the  corporation,  under 
§  1192,  Kan.  Gen.  Stat.  1889,  is  not  the 
same  as  one  between  the  same  parties  to 
enforce  such  a  liability  on  the  ground  that 
the  corporation  has  suspended  business  for 
a  year,  under  §§  1200  and  1204.  because  the 
facts  of  a  judgment  and  an  unsatisfied 
execution  are  essential  to  the  former  and 
immaterial  to  the  latter,  and  the  fact  of 
suspension  of  business  for  a  year  is  indis- 
pensable to  the  latter  and  irrelevant  to  the 
former.  Harrison  v.  Remington  Paper  Co. 
3:  054,  140  Fed.  385.  72  C.  C.  A.  405. 

360.  The  necessity  of  an  accounting  does 
not  determine  equitable  jurisdiction  of  a 
suit  against  the  stockholders  of  an  insolvent 
corporation  to  enforce  payment  of  unpaid 
stock  subscriptions  as  an  asset  for  the 
benefit  of  creditors.  Cook  v.  Carpenter, 
i:  900,  61   Atl.  799,  212  Pa.  165. 

By  receiver  or  assignee. 

Liability  of  stockholder  in  bank,  see  B-A.NK8, 
17. 

Impairment  of  contract  obligations  by  stat- 
ute as  to,  see  Constitutional  Law, 
809,  810. 

Jurisdiction  of  suit  by  receiver,  see  Cottbts, 
16;  Equity,  98. 

When  limitations  begin  to  run,  see  Limita- 
tion of  Actions,  1.52. 

Digest  1-52  I<.R.A.(N.S.) 


Effect  of  repeal  of  statute  as  to,  see  Stat- 
utes, 360,  367. 
See  also  supra,   336,   349;    infra,   365.   366. 

361.  Tlie  right  to  maintain  suit  against 
the  individual  stoekhoIdiTs  of  an  insolvent 
corporation  to  enforce  their  liability  on  un- 
paid stock  subscriptions  does  not  i-onstitute 
such  a  plain,  full,  adequate  remedy  at  law 
as  to  defeat  a  suit  in  equity  by  the  receiv- 
er against  all  stockholders,  for  the  collec- 
tion and  administration  of  the  corporate 
assets  as  a  trust  fund  for  the  benefit  of  the 
creditors.  Dill  v.  Ebev,  46:  440,  112  Pac. 
973,  27  Okla.  584.  '  (Annotated) 

362.  If,  for  any  reason,  it  is  impossible 
to  enforce  the  constitutional  liability  of 
the  stockholders  of  a  corporation  for  its 
debts  under  the  procedure  provided  by  stat- 
ute, the  court  may,  under  its  equitable  pow- 
ers, afford  a  remedy,  and  appoint  a  receiver, 
and  permit  him  to  proceed  under  general 
statutes  allowing  him  to  bring  suits  for 
such  purpose.  Way  v.  Barnev,  38:  648, 
116  Minn.  285,  133  N.  W.  801. 

363.  An  action  on  a  stock  subscription  by 
a  receiver  of  the  corporation  must  be  based 
on  the  title  of  the  corporation ;  and  the 
court  cannot  charge  the  receiver  with  the 
further  duty  of  representing  creditors  whose 
rights  are  personal  and  antagonistic  to  his. 
Marion  Trust  Co.  v.  Blish,  18:  347,  84  \.  E. 
814,   170  Ind.   686. 

364.  A  holder  of  unpaid  stock  in  an  in- 
solvent corporation  is  not  bound  to  make 
his  defense  to  liability  on  the  stock,  in  the 
receivership  proceeding  against  the  corpo- 
ration, of  which   he   was  not  given   notice, 

j  but  may  do  so  in  a  separate  action  brought 
to  enforce  payment  of  the  amount  for  which 
he  was  adjudged  to  be  liable  in  that  pro- 
ceeding. Grady  v.  Graham,  36:  177,  116 
Pac.  1098,  64  Wash.  436. 
By  creditor. 
Waiver  of  error  in  trial  court,  see  Appkal 

AND  Error,  820. 
What  law  governs,  see  Conflict  of  Laws, 

89. 
See  also  infra,  368.. 

364a.  The  right  of  creditors  to  recover  of 
stockholders  in  a  corporation  unpaid  stock 
subscriptions  does  not  depend  upon  consti- 
tutional or  statutory  provisions  imposing 
a  liability  of  stockholders  to  the  corpora- 
tion but  is  based  upon  fraud.  Randall 
Printing  Co.  v.  Sanitas  Mineral  Water  Co. 
43:  706,  139  N.  W.  606,  120  Minn.  268. 
Conditions  precedent. 

365.  Notice  to  stockholders  is  necessary 
to  bind  them  with  orders  fixing  their  lia- 
bility for  unpaid  stock  subscriptions,  in  a 
receivership  proceeding  against  the  corpo- 
ration. Grady  v.  Graham,  36:  177,  116 
Pac.   1098,  64  Wash.  436.  (Annotated) 

366.  No  call  for  unpaid  subscriptions  need 
be  made  by  the  corporation  or  the  bank- 
ruptcy court,  to  enable  a  trustee  in  bank- 
ruptcy to  maintain  a  suit  against  stock- 
holders for  unpaid  subscriptions  which  are 
necessary  to  satisfy  the  claims  of  creditors. 
Edwards  v.  Schillinger,  33:  895,  91  N.  E. 
1048,  245  111.  231. 

367.  An   assessment  by  the  court  or  the 


CORPORATIONS,  V.  g,  1,  2. 


723 


directors  of  the  corporation  is  not  neces- 
sary to  enable  a  trustee  in  bankruptcy  to 
maintain  an  action  against  stodvlioldcrs 
for  unpaid  subscriptions,  where  the  total 
amount  due  and  payable  from  all  stock- 
holders is  not  more  than  sufficient  to  pay 
the  debts  of  the  corporation.  Walsh  v. 
Shanklin,  31 :  365,  102  S.  W.  295,  125  Ky. 
715. 

368.  A  decree  declaring  the  assets  of  a  cor- 
poration to  be  exhausted  leaving  debts  un- 
paid is  not  necessary  to  justify  a  creditors' 
suit  to  enforce  the  statutory  liability  of 
stockholders,  if  the  report  of  the  commis- 
sioner on  claims  and  that  of  the  receiver 
have  been  allowed,  which  show  that  fact. 
Flynn  v.  American  Banking  &  T.  Co. 
19:  428,  69  Atl.  771,  104  Me.  141. 

369.  Compliance  by  a  creditor  of  a  cor- 
poration with  a  provision  of  a  statute  re- 
quiring judgment  and  return  of  execution 
against  the  corporation  before  attempting 
to  enforce  the  liability  of  stockholders  is 
excused,  where  the  corporation  has  been 
discharged  in  bankruptcy  proceedings  begun 
by  other  creditors  after  the  collection  and 
distribution  of  its  assets  among  its  credit- 
ors, and  the  creditor  prosecuting  the  stock- 
holders proved  his  claim  and  had  it  allowed 
by  the  bankruptcy  court.  Firestone  Tire 
&  Rubber  Co.  v.  Agnew,  24:  628,  80  N.  E. 
1116,  194  N.  Y.  165.  (Annotated) 

g.  Stockholders'    meetings;   voting 

1.  In  general. 

(See  also   same   heading  in  Digest   L.R.A. 
1-10.) 

Meetings    of    corporate    officers,    see    supra, 

IV.  g. 
Transportation   of  stockholders  of  railroad 

company  to  and  from  annual  meetings 

without    charge,    see    Carriers,    1062, 

1063. 
See  also  supra,  262. 

370.  The  approval  at  a  regular  annual 
meeting  of  a  corporation,  of  a  report  by  tlie 
president  of  a  lease  of  its  property  in  ac- 
cordance with  the  action  of  a  special  meet- 
ing called  to  consider  that  question,  is  an 
approval  of  the  lease,  and  Avaives  irreg- 
ularities in  the  calling  and  holding  of  the 
special  meeting.  Hill  v.  Atlantic  &  N.  C. 
R.  Co.  9:  606,  55  S.  E.  854,  143  N.  C.  539. 

371.  The  chairman  of  a  meeting  of  stock- 
holders of  a  corporation  may  be  selected  by 
viva  voce  vote  in  the  absence  of  a  provi- 
sion of  statute  or  by-law  to  the  contrary. 
Com.  ex  rel.  Sheip  v.  Vandegrift,  36:  45, 
81   Atl.   153,  232   Pa.  53. 

Notice. 

372.  A  stockholder  of  a  corporation  ac- 
tually present  and  participating  in  a  special 
meeting  called  to  take  action  on  corporate 
aflFairs  cannot  complain  of  insufficiency  of 
notice  of  the  meeting.  Hill  v.  Atlantic  & 
N.  C.  R.  Co.  9:  606,  55  S.  E.  854,  143  N.  C. 
639. 

373.  Refusal  of  stockholders  of  a  corpora- 
Digest  1-52  L.R.A.(N.S.) 


tion  at  a  regular  annual  meeting  to  enter- 
tain a  resolution  to  set  aside  an  attempted 
lease  of  the  corporate  property  is  a  waiver 
of  informality  of  notice  of  the  special  meet- 
ing at  which  the  lease  was  authorized,  and 
of  the  fact  that  the  meeting  adjourned  to 
and  completed  its  business  at  a  town  other 
than  that  specified  in  the  notice,  altliough  it 
does  not  affirmatively  appear  that  the  req- 
uisite majority  voted  against  the  propo- 
sition at  the  regular  meeting.  Hill  v.  At- 
lantic &  N.  C.  R.  Co.  9:  606,  55  S.  E.  854, 
143  N.  C.  539. 
Quorum. 

374.  A  majority  of  all  the  stock  of  the 
corporation  must  be  represented  to  enable 
a  stockholders'  meeting  to  transact  busi- 
ness, under  a  statute  providing  that  the 
"stockholders  holding  a  majority  of  the 
stock  at  any  meeting  of  the  stockholders 
shall  be  capable  of  transacting  the  busi- 
ness of  the  meeting."  Hill  v.  Town,  42: 
799,  138  N.  W.  334,  172  Mich.  508. 

(Annotated) 

375.  Holders  of  stock  in  a  corporation 
who  withdraw  from  a  stockholders'  meet- 
ing for  the  purpose  of  breaking  a  quorum 
cannot  obtain  relief  from  the  courts  against 
business  transacted  by  the  meeting  after 
their  departure.  Com.  ex  rel.  Sheip  v.  Van- 
degrift, 36:  45,  81  Atl.   153,  232  Pa.  53. 

(Annotated) 

376.  The  withdrawal  from  a  stockhold- 
ers' meeting,  which  was  organized  when  the 
necessary  quorum  of  stock  was  present,  of 
enough  stock  to  break  the  quorum,  does 
not  deprive  the  remaining  stockholders  of 
the  right  to  proceed  with  the  business,  nor 
defeat  an  election  of  officers  by  a  majority 
of  the  stock  present,  when  the  meeting  was 
organized  under  a  by-law  providing  that 
the  holders  of  a  majority  of  the  stock  is- 
sued shall  constitute  a  quorum,  and  that  if 
no  quorum  is  present  at  any  meeting,  a 
less  number  may  meet  and  adjourn  from 
time  to  time  until  a  quorum  is  present. 
Cora,  ex  rel.  Sheip  v.  Vandegrift,  36:  45, 
81  Atl.   153,  232  Pa.  53. 

2.  Voting. 

a.  In  general. 

(See   also    same   heading   in  Digest   L.R.A. 
1-10.) 

Trust   or  pooling  agreement. 

Consideration    for    voting   trust   agreement, 

see  Contracts,  115. 
Partial    invalidity    of    pooling    agreement, 

see  Contracts,  410. 
Specific  performance  of  pooling  agreement, 

see  Specific  Performance,  67. 

377.  A  voting  trust  of  the  stock  of  a 
corporation  cannot  be  said  to  be  condemned 
by  the  public  policy  of  a  state  as  repre- 
sented by  its  statutes,  where  they  provide 
for  the  voting  of  stock  held  in  a  represen- 
tative capacity.  Carnegie  Trust  Co.  v.  Se- 
curity L.  Ins,  Co.  31:  1 186,  68  S.  E,  412, 
111  Va.  1. 


724 


CORPORATIONS,  VI.  a,  b. 


378.  The  placing  of  stock  of  a  corpora- 
tion in  possession  of  a  trustee  to  be  voted 
does  not  separate  the  ownership  of  the 
stock  from  the  beneficial  interest,  in  such 
manner  as  to  render  the  transaction  void. 
Carnegie  Trust  Co.  v.  Security  L.  Ins.  Co. 
31:1186,  68  S.  E.  412,  111  Va.  1. 

379.  The  right  to  vote  stock  of  a  corpora- 
tion being  a  valuable  property  right  and 
trust  created  for  the  purpose  of  voting,  it 
is  an  active,  and  not  a  passive  or  dry, 
trust.  Carnegie  Trust  Co.  v.  Security  L. 
Ins.  Co.   31:  1 186,  68  S.  E.  412,  111   Va.   1. 

380.  An  agreement  between  holders  of 
shares  in  a  life  insurance  corupany,  to  place 
their  stock  in  the  hands  of  trustees  for  a 
period  of  twenty-five  years,  to  enable  the 
trustees  more  efficiently  to  manage  the  cor- 
poration, is  not  against  public  policy.  Car- 
negie Trust  Co.  v.  Security  L.  Ins.  Co. 
31:  1 186,   68   S.   E.   412,    111   Va.   1. 

(Annotated) 

381.  A  voting  trust  by  which  holders  of 
stock  in  a  national  bank  transfer  their 
holdings  to  trustees  empowered  to  vote  it 
at  corporate  meetings  for  a  series  of  years, 
and  to  purchase  the  holdings  of  any  party 
to  the  agreement  for  the  benefit  of  the 
others  upon  his  desiring  to  sell,  for  the 
purpose  of  continuing  the  present  success- 
ful anagement  and  keepii  g  control  of 
the  corporation  out  of  the  hands  of  an  in- 
dividual whose  influence  is  feared,  is  void 
as  against  public  policy  and  opposed  to 
the  Federal  banking  law,  , where  the  trus- 
tees of  the  bank  are  officers  which  that  law 
forbids  to  act  as  proxies,  and  the  law  re- 
q  ires  directors  to  be  holders  of  stock 
which  has  not  been  pledged.  Bridgers  v. 
First  Nat.  Bank,  31:  1199,  67  S.  E.  770. 
152  N.  C.  293. 

382.  A  contract  by  which  the  owner  of 
the  majority  of  the  stock  of  a  corporation 
agrees  with  one  to  whom  he  transfers  a 
portion  of  his  stock  in  consideration  of  a 
loan  of  money  to  finance  the  corporation, 
that  the  stock  might  be  pooled  for  a  term 
of  years  in  order  to  control  the  manage- 
ment, is  not  against  public  policy.  Winsor 
V.  Commonwealth  Coal  Co.  33:  63,  114  Pac. 
908,  63  Wash.  62. 

b.  Who  entitled  to  vote. 

(Flee  aluo   name   heading   in   Digest   L.R.A. 
1-10.) 

383.  Preferred  stock  of  a  corporation  may 
be  made  nonvoting  under  a  statute  giving 
the  incorporators  power  to  issue  such  stock 
and  fix  the  preferences,  priorities,  classi- 
fication, and  character  thereof,  although  the 
Constitution  and  statutes  provide  that 
in  all  corporate  elections  each  shareholder 
shall  have  a  right  to  cast  as  many  votes 
in  the  aggregate  as  shall  equal  the  number 
of  shares  held  by  him.  State  ex  rel.  Frank 
v.  Swanger,  2:  121,  89  S.  W.  872,  190  Mo. 
561.  (Annotated) 

384.  Statutory  and  charter  authority  to 
deprive  holders  of  preferred  stock  of  the 
right  to  vote  in  the  election  of  officers  and 
Digest  1-52  L.R.A.(N.S.) 


directors  of  a  corporation  is  invalid  where 
the  state  Constitution  provides  that  "each 
shareholder  siiall  be  entitled  to  one  vote  for 
each  share  of  stock  he  may  hold."     Brooks 

V.  State  ex  rel.  Richards,  51:  11 26,  79  Atl. 
790,  1  Boyce  (Del.)   1. 

VI.  Dissolution;  forfeiture ;  insolvency. 

a.  In  general. 

((•iee  also  same  heading  in  Digest  L.li.A. 
1-10.) 

Hights  of  preferred  stockholders  on  dissolu- 
tion of  solvent  corporation,  see  supra, 
255. 

Fraud  of  officers  in  permitting  dissolution 
of  corporation,  see  supra,  276. 

Dissolution  of  benevolent  society,  see  Bknev- 
OLENT  Societies,  V. 

Constitutionality  of  statute  providing  for, 
see  Constitutional  Law,  207. 

Reversion  to  grantor  on  dissolution  of 
charitable  corporation,  see  Deeds,  92. 

Estoppel  to  ask  for  dissolution,  see  Estop- 
pel, 150. 

Injunction  against  dissolution,  see  Inju.vc- 
TION,  241. 

Retaining  jurisdiction  on  refusal  of  injunc- 
tion against  dissolution,  see  Equity, 
119. 

Of  insurance  company,  see  Insurance,  I.  c. 

Laches  in  seeking  injunction  against  sale, 
see  Limitation  of  Actions,  71. 

Dissolution  to  avoid  competition  with  busi- 
ness rival,  see  Monopoly  and  Combina- 
tions, 18. 

Dissolution  of  lessee  corporation,  effect  on 
liability  of  surety  on  lease,  see  Prin- 
cipal AND  Surety,  19. 

Forfeiture  of  street  railway  franchise,  see 
Street  Railways,  7-10. 

Forfeiture  of  franchise  of  public  water  sup- 
ply company,  see  Waters,  376. 

385.  The  courts  will  not,  save  in  rare  and 
exceptional  instances,  interfere  at  the  suit 
of  minority  stockholders  of  a  corporation 
with  proceedings  of  a  majority  to  dissolve 
it  as  authorized  by  statute.  White  v.  Kin- 
caid,  23:  1177,  63  *S.  E.  109,  149  N.  C.  415. 

(Annotated) 

386.  The  sale  of  all  the  assets  of  the  cor- 
poration is  not  necessarily  a  dissolution 
within  the  meaning  of  a  statute  requiring 
unanimous  consent  of  all  the  stockholders 
to  a  dissolution.  Beidenkopf  v.  Des  Moines 
L.  Ins.  Co.  46:  290,  142  N.  W.  434,  160 
Iowa,  629. 

6.  Grounds  of  forfeiture. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Forfeiture  of  charter  of  social  club  where 
fraudulently  obtained  to  avoid  Sunday 
law,  see  Ci.rBS,  5. 

387.  A  corporation  cannot  question  the 
constitutionality    of    a    statute   merely    be- 


CORPORATIONS,  VI.  c— e. 


r-z-y 


<:ause  it  provides  a  forfeiture  of  its  fran- 
chises for  certain  acts  constituting  a  mis- 
use thereof,  while  not  providing  such  pen- 
alty for  other  acts  of  misuse.  State  v. 
Central  Lumber  Co.  42:  804,  123  N.  W.  504, 
24  S.  D.   136. 

388.  WTiere  a  corporation,  delinquent  in 
the  payment  of  an  occupation  fee,  as  pro- 
vided in  §  4260,  Cobbey's  Anno.  Stat.  (Neb.) 
1911,  applies  to  the  secretary  of  state  to 
be  reinstated,  as  provided  in  §  4261,  and 
in  good  faith  pays  to  such  secretary  the 
full  amount  of  fee  and  penalty  demanded 
by  him,  the  fact  that  the  secretary  may, 
through  oversight  or  under  a  misconstruc- 
tion of  the  law,  have  demanded  a  less  sum 
than  is  required,  will  not,  in  the  absence 
of  a  demand  upon  the  corporation  to  pay 
the  required  balance  and  a  refusal  or 
failure  on  its  part  to  make  the  payment, 
sustain  a  judgment  of  ouster  against  such 
corporation.  State  ex  rel.  Hartigan  v. 
Sperry  &  Hutchinson  Co.  49:  1123,  144  N.  W. 
795,  94  Neb.  785. 

c.  Effect  on  property  rightn. 

(See  also   same   heading   in  Digest   L.R.A. 
1-1/0.) 

389.  The  supposed  common-law  rule  that 
upon  the  termination  of  a  corporation,  its 
debts  become  extinguished,  its  realty  re- 
verts to  the  grantors,  and  its  personal  prop 
erty  goes  to  the  sovereign,  if  it  ever  existed 
in  fact,  is  wholly  obsolete,  except  as  to 
purely  public  corporations.  Huber  v.  Mar- 
tin, 3:  653,  105  N.  W.  1031,  127  Wis.  412. 

390.  A  lease  to  a  corporation  for  a  term 
of  years  determines  if  the  corporation  is 
dissolved  without  having  assigned  the  lease. 
On  dissolution  of  the  corporation  tiie  lease 
does  not  vest  in  the  Crown  as  bona  vacantia, 
but  the  reversion  is  accelerated  and  the  land 
reverts  to  the  lessor.  Hastings  Corp.  v. 
Letton,  3  B.  R.  C.  617  [1908]  1  K.  B.  378. 
Also  Reported  in  77  L.  J.  K.  B.  N.  S.  149, 
97  L.  T.  N.  S.  582,  20  Times  L.  R.  456,  lo 
Manson,   58.  (Annotated) 

d.  Effect  on  causeti  of  action. 

(See   also   same   headitiy   in   Digest   L.R.A. 
1-10.) 

By    corporation. 

391.  Insolvency  of  a  corporation  and  the 
appointment  of  a  receiver  to  manage  its 
business  and  wind  up  its  afiairs  do  not  of 
themselves  work  a  dissolution  of  the  cor- 
poration, so  as  to  prevent  the  corporation 
enforcing  a  judgment  of  foreclosure  which 
it  has  obtained  on  a  mortgage  held  by  it, 
and  legally  purchasing  the  property  at  tlie 
judicial  sale.  Leonard  v.  Hartzler,  50:  383, 
133  Pac.  570,  90  Kan.  386.  (Annotated) 
Against   corporation. 

392.  A  writ  of  error  sued  out  against  a 
corporation  which  was  dissolved  by  expira- 
tion of  its  charter  pending  the  trial  must 
be  dismissed,  as  there  is  no  party  to  be 
made  defendant  therein.  Venable  Bros.  r. 
Digest   1-52  Ii.R.A.(N.S.) 

\ 


I  Southern  Granite  Co.  3a:  446,  69  S.  E.  822, 
135    Ga.    508. 

393.  The  attempt  by  stockholders  to  de- 
I  fend  a  suit  against  a  corporation  after  its 
I  dissolution  by  expiration  of  the  charter  will 
I  not   authorize   a  judgment   against   it   as   a 

corporation  either  de  facto  or  by  estoppel. 
Venable  Bros.  v.  Southern  Granite  Co.  32: 
446,  69  S.  E.  822,  135  Ga.  508.      (Annotated) 

e.  Procedure ;  power  of  equity  as  to. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

394.  The  law  that  corporate  existence  can- 
not be  inquired  into,  except,  by  judicial 
proceedings  in  the  name  of  tlie  state,  does 
not  apply  to  a  pretended,  but  not  even  a 
de  facto,  corporation.  Huber  v.  Martin, 
3:  653,  105  N.  W.  1031,  127  Wis.  412. 
By  whom  petition  made  or  proceed- 
ing brought. 

395.  The  majority  stockholders  may,  act- 
ing in  good  faith,  dissolve  a  private  busi- 
ness corporation  against  the  protests  of  the 
minority,  where  no  business  has  been  done, 
or  obligations  incurred.  Chilhowee  W^oolen 
Mills  v.  State  ex  rel.  Majority  Stockhold- 
ers, 2:  493,  89  S.  W.  741,  115  Tenn.  266. 

(Annotated) 

396.  Majority  stockholders  of  a  corpo- 
ration may,  under  the  provisions  of  a  stat- 
ute that  an  action  lies  for  dissolution  of  a 
corporation  if  it  does  acts  which  amount  to 
a  forfeiture  of  its  rights,  proceed  for  a 
judicial  declaration  of  forfeiture  of  charter, 
where  they  have  voted  to  dissolve  the  corpo- 
ration. Chilhowee  Woolen  Mills  v.  State  ex 
rel.  Majority  Stockholders,  2:  493,  89  S.  W. 
741,  115  Tenn.  266. 

397.  The  bondholders  of  a  corporation  are 
the  beneficial  owners  of  a  decree  for  a  de- 
ficiency, obtained  against  the  corporation  by 
a  trustee  in  proceedings  to  foreclose  a  mort- 
gage given  by  the  corporation  to  secure  the 
payment  of  bonds  issued  by  it,  and,  as 
such,  are  creditors  of  the  corporation  within 
the  meaning  of  a  statute  providing  that 
proceedings  for  the  winding  up  of  an  insolv- 
ent corporation  can  be  instituted  only  by 
the  stockholders  or  the  creditors  thereof, 
any  of  whom  are  entitled  to  institute  sucli 
proceeding  for  the  purpose  of  having  the 
corporation  decreed  to  be  insolvent  and  ."or 
the  appointment  of  a  receiver.  O'Grady  v. 
United  States  Independent  Teleph.  Co.  (N. 
J.  Krr.  &  App.)  21:  732,  71  Atl.  1040,  75  N. 
J.   Eq.  301. 

398.  The  holder  of  a  "voting  trust"  cer- 
tificate, being  the  beneficial  owner  of  the 
stock  represented  by  it  in  the  hands  of  the 
"voting  trustees,"  is  a  stockholder  within 
the  meaning  of  a  statute  providing  that 
proceedings  for  the  winding  up  of  an  in- 
solvent corporation  can  be  instituted  only 
by  the  stockholders  or  the  creditors  of  the 
company,  and  he  is  entitled  to  institute  such 
proceeding.  O'Grady  v.  United  States  Inde- 
pendent Teleph.  Co.  (N.  J.  Err.  &  App.) 
21:  732,  71  Atl.   1040,  75  N.  J.  Eq.  ,301. 

(Annotated) 


726 


CORPORATIONS,  VI.  f,  1,  2. 


/.  Insolvency;  right  and  prefereneei*  of 
creditors. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of,  on  right  of  officer  to  salary,  see 
supra,  152. 

Rescission  of  subscription  to  stock  after  in- 
solvency of  corporation,  see  supra,  208, 
209. 

Liability  of  stockholders  for  misconduct  of 
receivers,  see  supra,  301. 

Liability  of  stockholders  receiving  dividends 
which  make  corporation  insolvent,  see 
supra,  303,  304. 

Laches  of  stockholders  in  complaining  of 
action  of  receiver  in  disposing  of  funds 
of  corporation,  see  supra,  305. 

Action  bv  receiver  to  enforce  stockholder's 
liability,  see  supra,  336,  349,  361-384. 

Insolvency  of  foreign  corporation,  see  infra, 
VII.  d. 

As  to  bankruptcy,  see  Bankruptcy. 

Insolvency  of  bank,  see  Banks,  IV.  b,  2; 
V. 

Actios  by  stockholder  of  bank  in  hands  of 
receiver,  see  Banks,  16. 

Insolvency  of  loan  associations,  see  Build- 
ing AND  Loan  Associations,  VII. 

Sale  of  personal  property  within  state  by 
insolvent  foreign  corporation,  see  Con- 
flict OF  Laws,  114. 

Exclusiveness  of  jurisdiction  first  acquired, 
see  Courts,  267. 

Of  insurance  company,  see  Insurance,  I.  c. 

Marshaling  assets  of  insolvent  corporation, 
see  Marshaling  Assets,  1. 

Payment  to  corporation  without  notice  of 
appointment  of  receiver,  see  Payment, 
21. 

Sufficiency  of  pleading  on  intervention  for 
appointment  of  receiver,  see  Pleading, 
199,  409,  410. 

Appointment  of  receiver  upon  petition  of 
minority  stockholder,  see  Receivers, 
13,  14. 

Receivers  for  generally,  see  Receivers. 

Subrogation  of  general  creditors  of,  to 
rights  of  corporation,  see  Subrogation, 
3. 

Conveyance  of  assets  and  good  will  of  in- 
solvent corporation  as  conferring  right 
to  use  tradename,   see  Tradename,   4. 

Venue  of  proceedings  in  insolvency,  see 
Venue,  11. 

Service  of  process  on  station  agent  of  rail- 
road in  hands  of  receiver,  see  Writ 
and  Process,  44. 

See  also  supra,  391,  397,  398. 

399.  The  title  of  an  insolvent  corporation 
to  its  property  continues  until  there  is 
either  an  adjudication  of  insolvency  or  the 
appointment  of  a  receiver  or  trustee,  in 
view  of  N.  J.  Pub.  Laws  1896,  pp.  298.  299, 
§§  65,  68,  providing  that  the  officers  of  an 
insolvent  corporation  may  be  restrained 
from  exercising  any  of  its  privileges  or 
franchises,  or  from  collecting  or  transfer- 
Digest  1-52  L.R.A.(N.S.) 


ring  its  assets  except  to  a  receiver  appoint- 
ed by  the  court,  in  whom,  upon  such  ap- 
pointment, all  its  rights  and  effects  shall' 
forthwith  vest.  Squire  v.  Princeton  Light- 
ing Co.  (X.  J.  Err.  &  App.)  15:  657,  68  Atl. 
176,  72  N.  J.  Eq.  8S3. 

400.  One  who  receives  assets  of  a  .vjrpora- 
tion  upon  its  liquidation  is  bound  to  re- 
spond to  its  creditors  to  the  extent  of  the 
assets  so  received,  in  a  suit  by  thcin  to- 
reaeii  the  assets  or  their  value.'  Williams- 
V.  Commercial  Nat.  Bank,  11:857,  ^0  Pac. 
1012,  49  Or   492. 

401.  The  assets  of  a  corporation  are  a 
trust  fund,  the  equitable  lien  of  the  credi- 
tor upon  which  cannot  be  destroyed  by  aa 
agreement  by  one  purchasing  them  from 
the  corporation  to  pay  its  debts.  Darcy 
V.  Brooklyn  &  N.  Y.  Ferry  Co.  26:  267,  89 
N.   E.    461,    196   N.    Y.    99. 

402.  An  insolvent  corporation  has  no- 
power  as  against  the  rights  of  its  creditors 
to  purchase  its  own  stock  at  a  sale  thereof 
for  nonpayment  of  a  balance  due  on  the 
subscriptfon,  and  thereby  relieve  the  sub- 
scriber from  further  liability,  since  un- 
paid subscriptions  are  a  trust  fund  for  the- 
benefit  of  creditors,  of  the  benefit  of  which 
it  cannot  deprive  them.  Tiger  v.  Rogers- 
Cotton  Cleaner  &  Gin  Co.  30:  694,  130  S.  W. 
685,  96  Ark.  1.  (Annotated): 

2.  Preferences. 

(See  also  same  heading  in  Digest  L.R.A 
1-10.) 

Illegal  preference  by  bankrupt  corporation, 
see  Bankruptcy,  78,  79, 

As  to  funds  in  insolvent  bank,  see  Banks^ 
V. 

Exclusiveness  of  remedy  provided  by  stat- 
ute making  assets  trust  fund  for  benefit 
of  creditors  and  stockholders,  see  Elec- 
tion of  Remedies,  12. 

Preference  of  state  in  proceeds  of  insurance 
company,  see  Insurance,  23. 

Of  claims  against  receivers,  see  Receiver.s, 
IIL 

Following  trust  property,  generally,  see 
Trusts,  V. 

403.  An  insolvent  corporation  cannot  pre- 
fer creditors;  and  therefore  a  mortgage  by 
one  to  whom  its  property  had  been  trans- 
ferred for  the  benefit  of  creditors,  with  the 
understanding  that  preference  should  be 
given  to  certain  ones,  to  secure  the  claim  of 
a  bank,  is  invalid  whether  the  bank  knew 
the  character  of  the  trar  ♦'er  to  the  trustee, 
or  the  exact  condition  of  the  corporation 
when  the  mortgage  was  given,  or  not, 
Furber  v.  Williams-Flower  Co.  8:  1259,  111 
N.  W.  548,  21  S.  D.  228. 

404.  The  receiver  of  an  insolvent  corpora- 
tion cannot,  without  a  decree  of  dissolu- 
tion, maintain  a  bill  to  set  aside  a  set-oflF 
by  a  bank  of  a  fund  deposited  by  the  cor- 
poration with  it,  upon  its  unmatured  note 
to  the  bank,  as  an  unlawful  preference  to 
an  indorser  of  ihe  note.  Hayden  v.  Citi- 
zens Nat.  Bank  46:  1059,  87  Atl.  672.  128- 
Md.  163. 


CORPORATIONS,  VII.  a. 


727 


405.  The  claims  of  creditors  of  a  corpo- 
ration who  undertake  to  conduct  its  busi- 
ness so  as  to  enable  it  to  pay  its  debts  will 
be  postponed  to  the  debts  incurred  under 
their  management,  if  tlie  corporation  sub- 
sequently passes  into  the  hands  of  a  re- 
ceiver and  the  assets  are  insufficient  to 
satisfy  all  creditors,  although  they  express- 
ly stipulated  against  personal  liability  for 
the  acts  of  tlieir  manager.  Davis  v.  Iowa 
Fuel  Co.  24:  1166,  122  N.  W.  815,  144  Iowa, 
138.  (Annotated) 

406.  One  of  several  creditors  of  a  cor- 
poration attempting  to  manage  it  to  enable 
it  to  pay  its  debts,  who  lends  money  to  it 
in  furtherance  of  the  enterprise  before  the 
e.xecution  of  the  agreement  for  such  opera- 
tion, in  which  he  subsequently  joins,  must 
be  treated  as  an  existing  creditor  with  re- 
spect to  such  loan,  so  that  it  will  be  post- 
poned to  debts  incurred  under  their  man- 
agement. Davis  V.  Iowa  Fuel  Co.  24:  1166, 
122  N.  W.  815,  144  Iowa,  138. 

Of  stockholders. 

407.  A  holder  of  preferred  stock  in  a 
corporation,  whose  certificate  provides  that 
no  lien  shall  be  placed  upon  the  corporate 
property  without  his  consent,  is  not  entitled 
to  priority  over  corporate  creditors  in  tlie 
distribution  of  its  assets.  Fryer  v.  Wiede- 
mann, 39:  loii,  146  S.  W.  752,  148  Ky.  379. 

408.  A  holder  of  preferred  stock  in  a 
corporation  cannot  enforce  its  redemption 
at  par,  as  provided  in  his  contract,  if  the 
assets  of  the  company  are  not  sufficient  to 
pay  its  debts.  Rider  v.  John  G.  Delker  & 
Sons  Co.  39:  1007,  140  S.  W.  1011,  145  Ky. 
634.  (Annotated) 

409.  The  claims  of  directors  and  holders 
of  common  stock  of  a  corporation  for  money 
advanced  to  keep  it  a  going  concern  will  not 
be  postponed  in  the  winding  up  of  the  corpo- 
ration to  the  retirement  of  preferred  stock, 
because  at  the  time  they  assumed  the 
management,  the  assets  were  sufficient  to 
pay  preferred  stockholders  in  full,  had  the 
concern  been  wound  up  at  that  time.  Fr^er 
v.  Wiedemann,  39:  loii,  146  S.  W.  752,  148 
Ky.  379. 

410.  Directors  and  holders  of  common 
stock  in  a  corporation,  although  occupying 
a  position  of  trust  towards  preferred  stock- 
holders, do  not,  by  lending  money  to  the 
corporation  to  enable  it  to  carry  on  its 
business,  even  as  to  such  an  amount  as  to 
render  the  preferred  stock  worthless,  post- 
pone their  claims  to  repayment  to  the  re- 
tirement of  the  preferred  stock,  which  was 
issued  under  an  agreement  that  no  lien 
should  be  placed  on  the  property  of  the 
corporation  without  consent  of  the  pre- 
ferred stockholders.  Fryer  v.  Wiedemann, 
39:  loii,  146  S.  W.  752,  148  Ky.  379. 

VII.  Foreign  corporations. 

a.  In  general. 

(See  also   same  heading   in  Digest   L.R.A. 
1-10.) 

Attachment  against,  see  ATTACHMENTS,  12, 

13,  40. 
Digest  1-52  KR.A.(N.S.) 


Attachment  of  bonds  of  nonresident  corpo- 
ration, see  Attachment,  24,  31. 

Foreign  loan  association,  see  Building  and 
Loan  Associations,  VIII. 

License  tax  on  sales  by  agents,  see  Com- 
merce, IV. 

Place  of  contract  on  sale  of  stock  by  foreign 
corporation,  see  Conflict  of  Laws,  5. 

Law  of  state  where  organized,  denying  cor- 
poration benefit  of  usury  laws;  effect 
in  other  state,  see  Conflict  of  Laws, 
39. 

What  law  governs  in  action  by  creditors  to 
recover  unpaid  stock  subscriptions,  see 
Conflict  of  Laws,  89. 

Applicability  to,  of  statute  for  weekly  pay- 
ment of  employees,  see  Constitutional 
Law,  313. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  II.  a,  2,  c. 

Original  jurisdiction  of  appellate  court  as 
to,  see  Courts,  232. 

Jurisdiction  to  enforce  liability  of  members, 
see  Courts,  23. 

Right  to  exercise  power  of  eminent  domain, 
see  Eminent  Domain,  11-15. 

Presumption  against,  from  silence,  see  Evi- 
dence, 310. 

Evidence  in  prosecution  for  violation  of 
state  statute  by,  see  Evidence,  1892. 

Sufficiency  of  evidence  to  show  that  one  acts 
as  agent  of  corporation,  see  Evidence, 
2250,  2251. 

Garnishment  of  foreign  corporation,  see 
Garnishment,  7,  8,  30,  41,  42. 

Garnishment  of  freight  due  nonresident  car- 
rier, see  Garnishment,  20. 

Situs  of  debt  due  foreign  corporation  for 
purpose  of  garnishment,  see  Garnish- 
ment, 41. 

Injunction  against,  see  Injunction,  240. 

Right  to  enjoin  domestic  company  from 
using  tradename,  see  Injunction,  390. 

As  to  foreign  insurance  companies,  see  In- 
surance, I.  b. 

Who  bound  by  judgment  against,  see  Jltxj- 
MENT,  210. 

Levy  on  registered  bonds  of,  belonging  to 
nonresident,  see  Levy  and  Seizure,  9. 

Mandamus  to,  see  Mandamus,  65,  69. 

Illegal  combinations  by,  see  Monopoly  and 
Combinations. 

Action  against  sureties  on  void  contract  by 
foreign  corporation,  see  Principal  and 
Surety,  5. 

Eflect  of  sale  by  domestic  railroad  company 
to  foreign  corporation,  see  Railroads,  7. 

Receiver  for  foreign  insurance  company,  see 
Receivers,  16. 

Sufficiency  of  title  of  statute  as  to  incorpo- 
ration within  state,  see  Statutes,  94, 

Construction  of  statute  as  to  business  of, 
see  Statutes,  225. 

Taxation  of  generally,  see  Taxes,  78-80, 
131,  132. 

Duty  to  list  property  for  taxation,  see 
Taxes,  166. 

Where  taxable,  see  Taxes,  II. 

Taxation  of  shares  of  stock  in,  see  Taxes, 
28,  29,  134. 

Sale  of  property  for  taxes,  see  Taxes,  207. 


728 


CORPORATIONS,  VII,  b. 


Duty  of  court  in  possession  of  fund  of  in- 
solvent foreign  corporation  to  pay 
taxes  due  by  corporation,  see  Taxes, 
258. 

Estoppel  to  require  second  payment  of  tax 
paid  to  wrong  officer,  see  Taxes,  260. 

Tax  on  transfer  of  stock  of  foreign  corpo- 
ration, see  Taxes,  368. 

411.  A  constitutional  provision  prohibit- 
ing foreign  corporations  from  exercising 
within  the  state  greater  privileges  than 
those  possessed  by  similar  domestic  ones 
does  not  affirmatively  confer  upon  them  the 
power  of  domestic  corporations.  Spratt  v. 
Helena  Power  Transmission  Co.  8:  567,  88 
Pac.  773,  35  Mont.  108. 

412.  That  a  railroad  company  is  tlie  crea- 
ture of  another  state,  and  is  engaged  in 
interstate  commerce,  does  not  make  inap- 
plicable to  it  a  statute  of  a  state  in  which 
it'  is  doing  business  forbidding  such  compa- 
nies to  make  contracts  with  their  employees 
for  the  establishment  of  a  relief  or  indem- 
nity plan  which  shall  relieve  them  from  a 
portion  of  the  liability  imposed  upon  them 
by  law  for  injuries  to  employees.  Mc- 
Guire  v.  Chicago.  B.  &  Q.  R.  Co.  33:  706, 
108  X.  W.  002,  131  Iowa,  340. 
Property   rights. 

413.  One  seeking  damages  for  personal  in- 
juries from  a  domestic  railroad  company, 
which  denies  liability  on  the  ground  that  it 
had  conveyed  its  property  to  a  foreign  cor- 
poration, may  question  the  right  of  the  lat- 
ter to  take  the  title,  for  the  purpose  of 
showing  that  defendant  had  not  relieved 
itself  from  responsibility  for  the  operation 
of  the  road.  Plummer  v.  Chesapeake  &  O. 
R.  Co.  33:  362,  136  S.  W.  162,  143  Ky.  102. 

T).  Doing  btisiness  within  state. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Regulation  of  foreign  insurance  company, 
see  Insurance,  I.  b. 

414.  The  regulation  of  foreign  corpora- 
tions under  Kan.  Laws  1898,  chap.  10,  and 
Kan.  Laws  1901,  chap.  125  (Kan.  Gen. 
Stat.  1901,  §§  1259  et  seq.),  devolves  upon 
the  state,  and  a  private  individual  cannot 
interfere,  except  in  the  single  instance  of 
the  failure  of  the  corporation  to  file  its  an- 
nual statement,  and  then  only  to  the  extent 
of  abating  a  suit  against  him  until  such 
statement  shall  have  been  filed.  State  v. 
American  Book  Co.  i:  1041,  76  Pac.  411,  69 
Kan.  1. 

What  coxistitntes  doing  husiness  in 
state. 

What  constitutes  doing  business  within 
state  for  jurisdictional  purposes,  see 
Courts,  44. 

By  foreign  insurance  company,  see  Insur- 
ance, 18,  19. 

What  is  carrying  on  business  within  state 
to  sustain  service  of  process,  see  Writ 
.\XD  Process,  II.  b. 

See  also  infra,  437. 

Digest   1-52  L.R.A, (N.S.) 


415.  The  negotiations  of  a  foreign  cor- 
poration with  the  state  school  text-book 
commission,  resulting  in  a  contract  and 
bond  to  supply  the  public  schools  with 
text-books,  does  not  constitute  the  doing 
of  business  within  the  state  by  such  cor- 
poration within  the  meaning  of  Kan.  Laws 
1898,  chap.  10,  and  Kan.  Laws  1901,  chap. 
125  (Kan.  Gen.  Stat.  1901,  §§  1259  et  seq.). 
State  v.  American  Book  Co.  i:  1041,  76 
Pac.  411,  69  Kan.   1. 

416.  A  foreign  rkilroad  company  having 
no  transportation  line  within  a  state  is  not 
doing  business  there,  within  the  meaning  of 
a  statute  providing  for  service  of  process  on 
foreign  corporations  doing  business  within 
the  state  by  serving  its  agent,  by  maintain- 
ing within  the  state  an  agency  to  solicit 
shippers  to  direct  the  local  carrier,  to  whom 
property  is  delivered  for  transportation,  to 
bill  it  over  the  line  of  such  foreign  corpora- 
tion. Berger  v.  Pennsylvania  R.  Co.  9: 
1214,   65   Atl.   261,   27   R.   I.    583. 

( Annotated ) 

417.  Taking  assignments  of  valid  claims 
against  residents  of  a  state,  and  bringing 
actions  thereon  is  not  doing  business  with 
in  the  state  by  a  corporation  not  engaged 
in  the  business  of  such  transactions,  or  in 
a  business  connected  with  the  claims,  with- 
in the  meaning  of  constitutional  and  stat- 
utory provisions  requiring  foreign  corpora- 
tions to  do  certain  things  before  doing  busi- 
ness within  the  state.  A.  Booth  &  Co.  v. 
Weigand,  10:  693,  83  Pac.  734,  30  Utah,  135. 

(Annotated) 

418.  A  sale  of  goods  in  store  within  a 
state  pursuant  to  a  commission  contract,  by 
a  foreign  corporation  to  parties  within  such 
state,  is  not  within  a  statute  requiring  for- 
eign corporations  doing  business  within  the 
state  to  comply  with  certain  conditions, 
since  such  sale  constitutes  interstate,  as 
contradistinguished  from  intrastate,  com- 
merce. Sucker  State  Drill  Co.  v.  Wirtz,  18: 
134,  115  N.  W.  844,  17  N,  D.  313. 

(Annotated) 

419.  A  corporation  carries  on  business  in 
a  state,  within  the  meaning  of  a  statute 
prescribing  the  conditions  upon  which  for- 
eign corporations  may  transact  business 
therein,  wiien,  for  a  valuable  consideration, 
it  makes  a  fifteen-year  contract  with  a  per- 
son to  act  as  its  agent  to  establish  a  "food" 
business  in  certain  counties  in  the  state,  to 
look  after  a  line  of  customers  already  estab- 
lished, to  sell  to  wholesale  dealers  and  sub- 
agents,  and  to  make  county  contracts.  Ney- 
ens  V.  Worthington,  18:  142,  114  N.  W.  404, 
150  Mich.  580.  (Annotated) 

.  420.  A  foreign  corporation  whose  travel- 
ing salesmen  solicit  and  receive  orders  in 
another  state  for  intoxicating  liquors 
wliicli  orders,  when  accepted  by  the  cor- 
poration, are  filled  by  sliipping  the  liquors 
f.  o.  b.  to  the  purchasers,  is  engaged  in 
business  in  such  other  state,  and  is  sub- 
ject to  the  statutory  provisions  thereof 
relating  to  foreign  corporations  doing  busi- 
ness within  the  state.  State  ex  rel.  Jack- 
son v.  Wm.  J.  Lemp  Breu.  Co.  29:  44,  102 
Pac.  504,  79  Kan.  705. 


CORPORATIONS,  VII.  b. 


729 


421.  A  foreign  corporation  conducting  a 
correspondence  scliool,  whose  business  in- 
volves the  solicitation  of  students  in  Kan- 
sas by  local  agents,  who  are  also  to  collect 
and  forward  to  the  home  office  the  tuition 
fees,  and  the  systematic  intercourse  by  cor- 
respondence between  the  company  and  its 
scholars  and  agents,  wherever  situated,  and 
the  transportation  of  the  needful  books,  ap- 
paratus, and  papers,  is  doing  business  with- 
in the  state,  within  the  meaning  of  Kan. 
Gen.  Stat.  1901,  §  1283,  which  prohibits 
the  maintaining  of  an  action  in  the  Kansas 
courts  by  any  corporation  doing  business 
in  the  state  which  has  not  filed  with  tlie 
secretary  of  state  the  statement  of  its  con- 
dition, provided  for  by  that  section.  Inter- 
national Text-Book  Co.  v.  Pigg,  27:  493,  30 
Sup.  Ct.  Rep.  481,  217  U.  S.  91,  54  L.  ed. 
678. 

422.  A  sale  within  a  state,  by  an  agent  of 
a  foreign  corporation  who  maintains  an 
office  there  for  securing  orders  to  be  sent  to 
the  domicil  of  the  corpoi-ation  to  be  filled, 
of  a  single  cargo  of  the  company's  prod 
uct,  which  has  been  rejected  by  the  orig- 
inal purchaser,  is  not  within  the  meaning 
of  a  statute  forbidding  an  action  on  its  con- 
tract by  a  foreign  corporation  doing  busi- 
ness within  the  state  without  procuring  the 
proper  certificate  therefor.  Penn  Collieries 
Co.  V.  McKeever,  2:  127,  75  N.  E.  935,  183 
N.   Y.   98.  (Annotated) 

423.  The  loss  by  a  foreign  corporation  of 
its  right  to  do  business  in  a  state  does 
not  deprive  it  of  the  right  to  defend  an 
action  arising  out  of  a  valid  contract,  com- 
menced while  it  was  rightfully  doing  busi- 
ness therein,  so  as  to  render  a  judgment 
taken  after  such  loss  of  right  to  do  busi- 
ness void,  as  the  prosecution  and  defense 
of  actions  respecting  valid  contracts  do  not 
constitute  doing  business  within  the  mean- 
ing of  statutes  restricting  the  rights  of 
foreign  corporations.  Billmyer  Lumber  Co. 
v.  Merchants'  Coal  Co.  26:  iioi,  66  S.  E. 
1073,  66  W.  Va.  696.  / 
Right  to  do  business;  conditions  as  to. 
Refusal  of  license  to  foreign  insurance  com- 
pany, see  Appeal  and  Error,  697. 

As  to  foreign  loan  associations,  see  Buiu)- 
iNO  AND  Loan  Associations,  31,  32. 

Regulations  as  to,  as  interference  with  com- 
merce, see  Commerce,  45. 

Right  of  foreign  corporation  to  lion  for 
work  where  it  has  not  complied  with 
local  statutes  as  to  doing  business,  see 
Commerce,  98. 

Provisions  as  to  doing  business  as  inter- 
ference with  interstate  commerce,  see 
Commerce,  99. 

Conditions  impairing  obligation  of  con- 
tract, see  Constitutional  Law,  787. 

Embezzling  money  from  corporation  not  au- 
thorized to  do  business  in  state,  see 
Embezzlement,  3. 

Sufficiency  of  evidence  to  support  finding 
that  corporation  was  unlawfully  en- 
gaged in  business  within  state,  see  Evi- 
dence, 2347. 

Foreign  insurance  company,  see  Insurance, 
14-17. 

Digest  1-52  L.R.A.(N.S.) 


Who  bound  by  judgment  against  corpora- 
tion after  it  has  been  deprived  of  its 
right  to  do  business,  see  Judgment, 
210. 

Partial  invalidity  of  statute  as  to  condi- 
tions of  doing  business,  see  Statutes, 
59. 

See  also  supra,  423;  infra,  445-451, 

424.  A  corporate  charter  obtained  in  one 
state  cannot  empower  the  corporation  to 
carry  on  business  in  another  state  in  viola- 
tion of  its  laws.  Mandeville  v.  Court- 
right,  6:  1003,  142  Fed.  97,  73  C.  C.  A.  321. 

425.  A  statute  prescribing  the  conditions 
upon  which  a  foreign  corporation  may  do 
business  within  a  state  does  not  apply  to 
foreign  corporations  engaged  solely  in  trans- 
acting an  interstate  business,  as  it  will  be 
presumed  that  in  the  enactment  of  such 
statute  the  legislature  did  not  intend  to  in- 
terfere in  any  manner  with  the  exclusive 
power  to  regulate  or  restrict  interstate  com- 
merce, vested  in  Congress.  Sucker  State 
Drill  Co.  V.  Wirtz,  18:  134,  115  N.  W.  844, 
17  N.  D,  313, 

426.  A  state  has  power  to  require  foreign 
railroad  companies  to  become  domesticated 
as  a  condition  to  acquiring  and  operating 
railroads  within  the  state.  Plummer  v. 
Chesapeake  &  O.  R.  Co.  33:  362,  136  S.  W. 
162,  143  Ky.  102. 

427.  A  foreign  railroad  company  wishing 
to  purchase  a  railroad  line  within  the  state 
must  comply  with  the  statute  applicable  to 
such  corporations  which  wish  to  purchase 
and  hold  lands  for  depot,  tracks,  and  other 
purposes,  and  compliance  with  the  statute 
applicable  to  those  wishing  tO  possess,  con- 
trol, maintain,  or  operate  a  railway  within 
the  state  is  not  sufficient.  Plummer  v. 
Chesapeake  &  O.  R.  Co.  33:  362,  136  S,  W. 
162,   143  Ky.    102. 

428.  A  constitutional  provision  that  no 
foreign  railroad  company  shall  have  power 
to  acquire  a  right  of  way  or  real  estate  for 
a  depot  or  other  uses,  until  it  shall  have 
become  a  domestic  corporation,  applies  to 
the  purchase  of  existing  lines  as  well  as  to 
the  construction  of  new  ones.  Plummer  v. 
Chesapeake  &  O.  R.  Co.  33:  362,  136  S.  W. 
162,  143  Ky.  102. 

429.  An  amendment  to  a  statute  pre- 
scribing certain  conditions  upon  which  for- 
eign corporations  may  do  business  in  the 
state,  and  declaring  that  upon  compliance 
with  such  conditions  the  corporation  shall 
be  to  all  intents  and  purposes  a  domestic 
corporation,  which  merely  changes  the 
conditions  for  doing  business,  and  subjects 
such  corporations  to  the  jurisdiction  of 
the  local  courts,  does  not  prevent  compli- 
ance with  the  statute  from  effecting  the 
domestication  of  the  corporation,  by  omit- 
ting the  provision  therefor.  Stonega  Coke 
&  Coal  Co.  V.  Southern  Steel  Co.  31:278, 
131  S.  W.  988.  123  Tenn.  428. 
Contracts  of  nnanthorized  company. 
Change  of  decision  as  to  validity  of  con- 
tracts of  unauthorized  company,  see 
Constitutionai.  Law,  803;  Courts, 
298,  299. 


730 


CORPORATIONS,  VII.  b. 


Cancelation  of  contract  with  foreign  corpo- 
ration not  complying  with  laws  as  to 
doing  business,  see  Equity,  135. 

Estoppel  of  one  contracting  with  corpora- 
tion to  plead  failure  to  comply  with 
laws  as  to  doing  business,  see  Estoppel, 

'       73. 

Estoppel  to  set  up  mortgage  as  against  cor- 
poration purchasing  without  authority, 
see  Estoppel,  180. 

By  foreign  insurance  company,  see  Insur- 
ance, 20,  21. 

See  also  supra,  422;  infra,  445,  451;  Con- 
tracts, 579. 

430.  Contracts  made  with  a  foreign  cor- 
poration before  it  has  obtained  permission, 
under  the  provisions  of  Kan.  Laws  1898, 
chap.  10,  and  Kan.  Laws  1901,  chap.  125 
(Kan.  Gen,  Stat.  1901,  §§  1259  et  seq.),  to 
do  business  in  the  state,  are  not,  for  that 
reason,  invalid,  or  subject  to  cancelation 
at  the  suit  of  one  of  the  contracting  par- 
ties. State  V.  American  Book  Co.  i:  1041, 
76  Pac.  411,  69  Kan.  1.  (Annotated) 

431.  A  contract  made  by  a  foreign  cor- 
poration which  has  not  complied  with  the 
local  law  so  as  to  be  entitled  to  do  busi- 
ness in  the  state,  upon  which  the  statute 
deprives  it  of  the  right  to  maintain  an  ac- 
tion, is  not  void  so  as  to  entitle  the  other 
contracting  party  to  recover  money  paid  up- 
on it  on  the  theory  that  there  was  a  fail- 
ure of  consideration.  Mahar  v.  Harring- 
ton Park  Villa  Sites,  38:  210,  97  N.  E. 
587,  204  N.  Y.  231.  (Annotated) 

432.  Express  statutory  language  is  neces- 
sary to  make  void  and  unenforceable  con- 
tracts concerning  a  subject-matter  itself 
harmless  and  lawful,  the  consideration  for 
which  has  been  fully  received  and  retained 
by  a  citizen  of  the  state,  by  a  foreign  cor- 
poration which  has  failed  to  meet  the  stat- 
utory conditions  upon  which  it  is  permitted 
to  do  business  within  the  state.  A.  Booth 
ft  Co.  v.  Weigand,  10:  693,  83  Pac.  734,  30 
Utah.  135. 

433.  The  right  to  make  a  contract  and  sue 
thereon  is  not  included  in  a  provision  of 
a  statute  that  a  foreign  corporation  failing 
to  comply  with  the  requirements  of  the  lo- 
cal law  before  attempting  to  do  business 
within  the  state  "shall  not  be  entitled  to 
the  benefits  ot  the  laws  of  this  state  relat- 
ing to  corporations."  A.  Booth  &  Co.  v. 
Weigand.  10:  693,  83  Pac.  734,  30  Utah,  135. 

434.  Title  to  real  estate  taken  by  a  for- 
eign corporation  without  complying  with  the 
provisions  of  the  local  statute  necessary  to 
entitle  it  to  do  business  in  the  state  is  sub- 
ject to  an  unrecorded  mortgage  lien  for  un- 
paid purchase  money  in  favor  of  a  prior 
vendor,  where  the  statute  provides  that 
every  contract  in  relation  to  real  estate 
made  by  a  corporation  under  such  circum- 
stances shall  be  wholly  void.  Hanna  v.  Kel- 
sey  Realty  Co.  33:  355,  129  X.  W.  1080.  145 
Wis.  276.  (Annotated) 

435.  A  foreign  corporation  which  con- 
tracted to  pave  a  street  without  complying 
with  the  statutory  requirements  necessary 
to  enable  it  to  do  business  in  the  state 
cannot  enforce  the  paving  assessment,  if 
Digest   1-52  L.R.A.(N.S.) 


the  statute  provides  that  it  shall  not  be 
lawful  for  it  to  do  business  in  the  state 
until  it  has  complied  with  the  statute, 
although  the  only  penalty  provided  by  the 
statute  is  a  fine.  Fruin-Colnon  Contract- 
ing Co.  V.  Chatterson,  40:  857,  143  S.  W.  6, 
146  Ky.  504.  (Annotated) 

436.  The  rule  preventing  one  who  con- 
tracts with  a  corporation  from  denying  its 
corporate  existence  does  not  prevent  a  tax- 
payer from  denying  the  right  of  a  corpora- 
tion with  which  a  municipality  contracted 
for  a  street  improvement,  to  enforce  the 
assessment  against  his  property,  because 
of  failure  to  comply  with  the  statutory  re- 
quirements necessary  to  permit  it  to  do 
business  in  the  state.  Fruin-Colnon  Con- 
tracting Co.  V.  Chatterson,  40:  857,  143  S. 
W.  6,  146  Ky.  504. 

437.  The  contract  of  a  foreign  construc- 
tion company  to  perform  work  within  the 
state,  before  it  complies  with  the  law  re- 
quiring the  registration  of  foreign  corpora- 
tions, is  made  void  by  provisions  of  the  act 
that  "no  corporation  •  shall  do  business" 
until  it  has  complied  with  the  provisions  of 
the  act,  that  "it  shall  not  be  lawful  for  any 
such  corporation  to  do  any  business"  until 
it  shall  have  complied  with  the  act,  and 
making  a  violation  of  such  provisions  a 
misdemeanor,  although  the  statute  is  com- 
plied with  before  any  material  portion  of 
the  work  is  done  under  the  contract.  Pitts- 
burgh Constr.  Co.  v.  West  Side  Belt  R.  Co. 
11:  1145,  154  Fed.  929,  83  C.  C.  A.  501. 

438.  A  contract  by  a  foreign  corporation 
appointing  an  agent  to  look  after  its  busi- 
ness within  the  state  is  not  an  agreement  re- 
lating to  interstate  commerce.  Neyens  v. 
Worthington,  18:  142,  114  N.  W.  404,  150 
Mich.   580. 

439.  Compliance  with  the  terms  of  the 
statute  governing  the  rights  of  foreign  cor- 
porations ■  Ithin  the  sti.te  after  entering 
into,  but  before  commencing,  the  perform- 
ance of  a  contract  does  not  entitle  the  cor- 
poration to  enforce  it,  where  the  statute 
provides  that  contracts  by  corporations 
which  have  not  complied  with  the  require- 
ments of  the  statute  "shall  be  wholly  void 
on  its  behalf."  Allen  v.  Milwaukee,  5:  680, 
106  X.  W.  1099,  128  Wis.  678. 

440.  A  contract  entered  into  by  a  foreign 
corporation  within  the  state  before  comply- 
ing with  the  statute  forbidding  it  to  trans- 
act business  in  the  state  without  establish- 
ing a  local  office,  an  agent  to  receive  ser\'- 
ice  of  process,  and  paying  taxes,  is  void; 
and  subsequent  compliance  with  the  terms 
of  the  statute  will  not  enable  the  corpora- 
tion to  maintain  an  action  on  the  contract, 
although  the  statute  provides  a  penalty  for 
failure  to  comply  with  it,  and  declares  that 
no  corporation  failing  to  do  so  "can  main- 
tain any  suit  or  action"  in  anj'  of  the  courts 
of  the  state.  Tri-State  Amusement  Co.  v. 
Forest  Park  Highlands  Amusement  Co. 
4:  688,  90  S.  W.  1020,  192  Mo.  404. 

( Annotated ) 

441.  It  is  a  good  defense  to  an  action 
brought   by   a   foreign    corporation    upon    a 


CORPORATIONS,  VII.  c. 


731 


contract  made  in  the  prosecution  of  its 
business  within  the  state,  that  it  has  not 
complied  with  a  statute  which  expressly 
provides  that  it  shall  not  be  lawful  for  any 
corporation  to  carry  on  any  business  in  the 
state  until  it  shall  have  filed  a  statement 
giving  the  location  of  its  place  of  business 
within  the  state,  and  the  name  of  an  agent 
thereat  upon  whom  process  may  be  served, 
and  which  further  subjects  to  a  penalty  any 
corporation  undertaking  to  transact  any 
business  in  the  state  without  complying 
with  such  requirements,  although  such  stat- 
ute does  not  in  terms  declare  that  any  con- 
tract made  by  a  corporation  before  com- 
plying with  the  statute  shall  be  void  or  not 
enforceable.  Oliver  Co.  v.  Louisville  Realty 
Asso.  51:293,   161   S.  W.  570,  ISfi  Ky.  628. 

442.  The  obligation  of  a  corporation  to 
persons  who  subscribe  to  its  stock  affects 
its  personal  liability,  within  the  meaning 
of  a  statute  invalidating  contracts  affecting 
such  liability  made  by  any  foreign  cor- 
porntion  which  has  not  complied  with  the 
local  laws  so  as  to  be  entitled  to  do  busi- 
ness within  the  state,  and  a  foreign  cor- 
];oration  which  has  not  complied  with  the 
laws  cannot  tlierefore  enforce,  in  the  courts 
of  the  state  where  the  statute  was  enacted, 
contracts  of  subscription  to  its  capital 
stock  made  within  svich  state.  Southwest- 
ern Slate  Co.  V.  Stephens,  29:  92,  120  N.  W. 
408,  139  Wis.  616.  (Annotated) 

c.  Actions  &!/  or  against. 

(See  also   same   heading   in   Digest   L.R.A. 

1-10.) 

Jurisdiction  of  action,  see  Courts,  I.  b,  3. 

Actions  by. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  84. 

Defense  to  action  by,  to  recover  collection 
made  by  agent,  see  Coxtracts,  579. 

Injunction  suit  by,  see  Injunction,  390. 

Effect  of  commencement  of  action  by  corpo- 
ration not  entitled  to  bring  action,  to 
interrupt  running  of  limitations,  see 
Limitation  of  Actions,  283,  284. 

Time  for  filing  plea  of  statute  of  limita- 
tions in  suit  by  foreign  corporation, 
see  Pleading,  133. 

Pleading  in  action  by,  see  Pleading,  412. 

Mode  of  raising  objection  to  complaint  by, 
see  Pleading,  461. 

See  also  supra,  421,  422,  440,  442. 

443.  A  foreign  corporation  which  at  one 
time  did  business  in  the  state  of  Kansas, 
but  never  complied  with  the  requirements 
of  Kan.  Gen.  Stat.  1901.  §  1283,  with  re- 
spect to  foreign  corporations,  after  it  has 
ceased  to  do  such  business  may  maintain 
an  action  upon  a  note  taken  by  it  while  it 
was  so  engaged.  Boggs  v.  0.  S.  Kelly  Mfg. 
Co.  15:  461,  90  Pac.  765,  76  Kan.  9. 

444.  A  foreign  corporation  which  has  en- 
gaged in  mining  within  the  state  without 
complying  with  its  laws,  which  compliance 
is  a  statutory  prerequisite  of  the  right  to 
maintain  an  action  in  the  state  courts,  can- 
not secure  the  right  to  maintain  a  suit  in- 
Digest   1-52  I,.R.A.(N.S.) 


stituted  to  restrain  interference  with  its 
mine  by  complying  with  the  local  law  after 
its  institution.  Amalgamated  Zinc  &  L. 
Co.  V.  Bay  State  Zinc  Min.  Co.  23:  492,  120 
S.   W.   31,   221    Mo.   7.  (Annotated) 

445.  A  foreign  corporation  which  at- 
tempts to  engage  in  mining  within  a  state 
under  an  assignment  of  a  lease  made  and 
to  be  executed  there,  without  complying 
with  the  requirements  of  the  statutes  neces- 
sary to  give  it  the  right  to  do  business 
there,  by  reason  of  which  its  contracts  are 
void  under  the  statute,  cannot  validate  the 
assignment  so  as  to  maintain  an  action 
upon  it  by  complying  with  the  statute  sev- 
eral years  after  it  began  to  do  business,  and 
after  it  had  brought  an  action  t  )  protect 
its  rights  under  the  lease.  Amalgamated 
Zinc  &  L.  Co.  V.  Bay  State  ^inc  Min.  Co. 
23:  492,  120  S.  W.  31.  221   Mo.  7. 

440.  Compliance  by  a  foreign  corporation 
with  the  laws  of  the  state  after  securing  a 
contract  and  commencing  an  action  to  en- 
force it  will  not  enable  it  to  maintain  the 
action,  where  the  statute  provides  that  no 
action  shall  be  commenced  or  maintained 
in  the  state  courts  by  such  corporation  on 
any  contract  made  by  it  in  the  state,  un- 
less it  shall  have  fully  complied  with  the 
provisions  of  the  statute.  American  Copy- 
ing Co.  V.  Eureka  Bazaar,  9:  1176,  108  N. 
W.  15,  20  S.  D.  526. 

447.  Compliance*  with  the  law,  by  a  for- 
eign corporation  after  instituting  an  action, 
will  remove  the  right  to  defend  on  the 
ground  of  noncompliance,  under  a  statute 
providing  that  no  action  shall  be  main- 
tained, or  recovery  had,  in  any  court  by  a 
foreign  corporation  so  long  as  it  fails  to 
comply  with  the  law.  National  Fertilizer 
Co.  V.  Fall  River  Five  Cents  Sav.  Bank, 
14:  561,  82  N.  E.  671,  196  Mass.  458. 

(Annotated) 

448.  That  a  foreign  corporation  which  has 
attempted  to  place  children  under  its  care 
in  homes  within  the  state  has  exceeded  its 
charter  authority,  and  that  it  has  not  com- 
plied with  the  piovisions  of  the  local  law 
so  as  to  be  entitled  to  do  business  within 
the  state,  will  not  prevent  its  applying  for 
a  writ  of  habeas  corpus  to  recover  the 
custody  of  the  children  in  case  they  are 
wrongfully  seized  by  strangers.  New  York 
Foundling  Hospital  v.  Gatti,  7:  306,  79  Pac. 
231,  9  Ariz.  105.  (Annotated) 

449.  A  foreign  corporation  which  accepts 
as  security  from  its  debtor,  who  is  a  ware- 
iiouseman,  a  warehouse  receipt  covering 
property  owned  by  the  latter,  actually  con- 
tained in  his  warehouse,  may  maintain  an 
action  for  the  conversion  of  the  property, 
although  it  has  never  complied  with  N.  I). 
Rev.  Code,  1905,  §§  4695,  4697,  prescrib- 
ing the  conditions  upon  which  foreign  cor- 
porations may  do  business  in  the  state. 
State  use  of  Hart-Parr  Co.  v.  Robb-Law- 
rence  Co.  16:  227,  115  N.  W.  846,  17  N.  D. 
257. 

450.  A  transaction  by  which  a  foreign 
corporation  agrees  to  furnish  its  product 
manufactured  at  its  place  of  business  in 
another  state  through  a  contract  approved 


1 32 


CORPORATIONS,  VII.  d— CORPSE,  11.  a. 


there,  free  on  board  cars  at  the  point  of 
consummation  within  the  state,  for  use  in 
a  public  building,  is  interstate  commerce, 
not  within  the  provisions  of  a  local  statute 
denying  foreign  corporations  the  right  to 
enforce  claims  in  the  local  courts  witliout 
complying  with  its  laws.  United  States 
Gypsum  Co.  v.  Gleason,  17:  906,  116  N.  W. 
238,  135  Wis.  539. 

451.  A  foreign  corporation  which,  at  the 
time  it  entered  into  a  contract,  had  filed 
its  designation  of  agent  and  principal  place 
of  business,  as  required  bj'  statute,  and  had 
filed  with  the  secretary  of  state  a  copy  of 
its  articles  of  incorporation,  duly  certified 
to  by  the  secretary  of  state  where  organized, 
such  copy  not  having  been  certified  to  by 
the  county  recorder  of  any  county,  and  -.lo 
certified  copy  of  its  articles  of  incorporation 
having  been  filed  with  any  state  recorder, 
as  required  by  the  statute,  fails  substantial- 
ly to  comply  with  the  statutory  require- 
ments, and,  as  such  requirements  are  manda- 
tory, requiring  substantial  compliance  as  a 
condition  precedent  to  the  doing  of  business 
within  the  state,  cannot  maintain  an  action 
to  enforce  the  contract  entered  into  while 
thus  in  default.  Tarr  v.  Western  Loan  & 
Sav.  Co.  21:707,  99  Pac.  1049,  15  Idaho, 
741. 

Actions  against. 

First  raising  on  appeal  failure  to  allege 
appointment  of  agenl  to  receive  service, 
see  Appeal  and  Error,  764. 

Attadiment  against,  see  Attachment,  12, 
13,  40. 

Due  process  in  service  on,  see  Constitu- 
tional Law,  543. 

Jurisdiction  of  action  against,  see  Courts, 
44,   46,  47. 

Garnishment  of  foreign  corporation,  see 
Garnishment,  7,  8,  30,  41,  42. 

Injunction  against,  see  Injunction,  240. 

Sufficiency  of  service  to  sustain  decree 
against,    see    JurxjMENT,    19. 

Who  bound  by  judgment,  see  .Tudoment, 
210. 

Opening  default  judgment  against  corpora- 
tion, see  Judgment,  346. 

Removal  of  cause  by  nonresident  corpora- 
tion, see  Removal  of  Causes,  15. 

Repeal  of  statute  exempting  actions  against, 
from  operation  of  limitations,  see  Stat- 
utes, 330. 

Venue  of  action  against,  see  Venue,  12. 

Service  of  process  on  corporation,  see  Writ 
AND  Process,  II.  b.       •   ■  ■■     •' 

See  also  supra,  423.  '       "*' 

452.  A  statute  denying  to  a  foreign  cor- 
poration which  has  not  complied  with  the 
local  laws  the  right  to  maintain  an  action 
in  the  state  courts  does  not  prevent  its  de- 
fending an  action  brought  against  it  there. 
American  Deforest  Wireless  Teleg.  Co.  v. 
Superior  Court,  17:  11 17,  96  Pac.  15,  1.53 
Cal.  533.  (Annotated/ 

d.  Winding  up;  insolvency. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Receiver  of,  see  Receiver.s,  YI. 
Digest   1-52  L.R.A.(N.S.) 


CORPSE. 

/.  Mtcnicijial  regulationn,  1, 
11.  Private  rights,  2—17. 

a.  In  general,  2—4. 

b.  Custody,        disposition,        and 

burial,   0—17. 

Carrier's  duty  toward,  see  Carriers,  II.  p. 

Failure  to  transmit  telegram  as  to  shipment 
of  corpse,  see  Damages,  237,  661; 
Telegraphs,  47,  48. 

Damages  in  respect  to,  see  Damages,  237, 
281,  630-632,  651,  661. 

Acquiring  prescriptive  rights  in  private 
grounds  by  burial  in,  see  Easements, 
32. 

Right  of  one  complying  with  request  of  tes- 
tator to  remove  remains  of  relative,  to 
recover  expense  thereof  from  estate,  see 
Executors  4nu  Administrators,  100. 

See  also  Cemeteries. 

/.  Municipal  regulations. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Constitutionality  of  regulations  as  to  bur- 
ial, see  Constitutional  Law,  352. 

Bnrial   permit. 

See  also  Health,  6. 

1.  The  board  of  health  may  require  a 
certificate  from  the  attending  physician  as 
to  the  cause  of  death  as  a  condition  to  the 
issuance  of  a  burial  permit.  Meyers  v. 
Duddenhauser,  5:  727,  90  S.  W.  1049.  122 
Ky.  866.  (Annotated) 

//.  Private   rights. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Carrier's  duty  toward,  see  Carriers,  II.  p. 
Proof  of  wanton  mutilation  of  dead  body, 
see  Evidence,  2316. 

2.  A  railroad  company  owes  to  the 
widow  of  one  killed  upon  its  tracks  the  duty 
of  gathering  up  the  body  and  its  fragments 
found  on  its  track  and  decently  protecting 
them  and  preparing  them  for  burial,  negli- 
gent failure  to  perform  which  will  give  her 
a  right  of  action.  Kyles  v.  Southern  R. 
Co.  16:  405,  61  S.  E.  278,  147  N.  C.  394. 
Autopsy. 

3.  An  undertaker  who  has  taken  charge 
of  a  dead  body  may  be  held  liable  in  dam- 
ages to  the  next  of  kin  in  case  he,  without 
authority,  voluntarily  assents  to  the  mak- 
ing of  an  autopsy  upon  it.  Meyers  v. 
Duddenhauser,  5:  727,  90  S.  W.  1()49,  122 
Ky.  866. 

4.  Doctors  are  not  liable  for  perform- 
ing an  unauthorized  autopsy  on  a  dead  body 
for  the  purpose  of  complying  with  a  rule 
of  the  l)oar(l  of  health  and  securing  a  bur- 
ial permit.  Meyers  v.  Duddenhauser,  5:  727, 
no  S.  W.  1049. '122  Ky.  866.        (Annotated) 


CORPSE,  II.  b— CORRUPT  PRACTICES  ACT. 


733 


6.  Custody,   disposition,   and   burial. 

Excluding  father  from  burial  service  of 
child  whose  custody  was  awarded  to 
mother,  see  Case,  12. 

6.  One  is  not  punishable  for  burying 
his  child  in  a  wood  lot  rather  than  in  a 
burving  ground.  Seaton  v.  Com.  42:  211, 
149' S.  W.  871,  149  Ky.  498. 

7.  A  father  cannot  be  punished  for  us- 
ing a  pasteboard  box  with  a  rough  board 
covering  for  the  burial  of  his  child  rather 
tlian  a  regularly  made  coffin.  Seaton  v. 
Com.  42:  211,  149  S.  W.  871,  149  Ky.  498. 

(Annotated) 

8.  A  man  is  under  no  legal  liability  for 
refusing  to  permit  his  relatives  or  those 
of  his  wife  or  other  persons  to  be  present 
at  the  burial  of  his  child.  Seaton  v.  Com. 
42:  211,   149  S.  W.  871,   149  Ky.  498. 

9.  There  is  no  legal  duty  to  have  a  re- 
ligious ceremony  in  connection  with  the 
burial  of  the  dead.  Seaton  v.  Com.  42:  211, 
149  S.  W.  871,  149  Ky.  498. 
Interference  ^ivitli,  after  burial. 
Desecration  of  burial  ground,  see  Cemeter- 
ies, 6,  7. 

Injunction  against  removal  of,  from  grave, 
see  Injunction,  114. 

Amendment  of  pleading  in  action  for  inter- 
ference with  bodies  in  burial  lot,  see 
Pleading,  104. 

10.  The  death  of  the  grantee  of  a  lot  in 
a  public  cemetery  does  not  revoke  the  li- 
cense to  bury  therein,  so  as  to  destroy  a 
right  to  damages  for  interference  witli  the 
bodies  on  the  lot.  Anderson  v.  Acheson, 
9:  217,  110  N.  W.  335,  132  Iowa,  744. 

11.  That  one  brings  ejectment  for  a  bur- 
ial lot  will  not,  although  that  form  of  ac- 
tion will  not  lie,  prevent  his  recovering 
damages  for  wrongful  interference  with  bod- 
ies interred  therein,  under  a  statute  provid- 
ing that  a  person  shall  not  be  compelled  to 
prove  more  than  is  necessary  to  entitle  him 
to  the  relief  asked  for,  or  any  lower  degree 
included  therein.  Anderson  v.  Acheson,  9: 
217,  110  N.  W.  335,  132  Iowa,  744. 

12.  One  who  has  removed  the  remains  of 
a  decedent  to  a  new  resting  place  cannot 
plead  the  fact  that  the  remains  ©ught  nol 
to  be  disturbed,  as  a  defense  to  an  action 
for  the  removal.  Anderson  v.  Acheson,  9: 
ai7,  110  N.  W.  335,  132  Iowa,  744. 

13.  The  consent,  by  one  child,  to  the  re- 
moval of  his  parent's  remains  from  a  burial 
lot,  is  no  defense  to  an  action  by  other  chil- 
dren for  damages  therefor.  Anderson  v. 
Acheson,  9:  217,  110  N.  W.  335,  132  Iowa, 
744. 

14.  Children  who  own  a  burial  lot  upon 
which  the  remains  of  their  mother  were  in- 
terred beside  her  husband  according  to  her 
expressed  wish  will  not  be  required  to  ex- 
hume the  remains,  at  the  instance  of  rela- 
tives, of  a  child  of  the  husband  because  its 
grave  was  used  for  the  wife's  body,  where 
at  the  time  of  her  burial  the  child's  re- 
mains had  entirely  disappeared.  Wilson  v. 
Read,  16:  332,  68  Atl.  37,  74  N.  H.  322. 

15.  One  who  has  moved  the  earth  in 
Digest   1-52  I<.R.A.(N.S.) 


which  a  body  was  buried  will  not  be  re- 
quired to  restore  the  remains  of  the  body 
to  their  former  resting  place  if  no  trace 
of  them  was  discovered  in  the  grave.  Wil- 
son V.  Read,  16:  332,  68  Atl.  37,  74  N.  H.  322. 

(Annotated) 

10.  A  court  before  which  is  pending  an 
indictment  for  murder  has  authority,  at  the 
instance  of  accused,  to  order  the  disinter- 
ment of  the  body  of  deceased,  and  the  per- 
formance thereon  of  an  autopsy,  even  against 
tlie  will  of  the  latter's  relatives,  where  it 
is  necessary  to  determine  the  facts  upon 
which  the  guilt  or  innocence  of  accused 
rests,  and  for  the  due  administration  of 
justice.  Gray  v.  State,  22:  513,  114  S.  W. 
635,  55  Tex.  Crim.  Rep.  90.  (Annotated) 

17.  Where  the  question  of  the  guilt  of 
one  accused  of  murder  depends  upon  wheth- 
er the  wound  causing  death  was  inflicted 
on  the  front  or  back  of  the  body,  and  such 
fact  can  be  determined  by  disinterment  of 
the  body  and  the  holding  of  an  autopsy 
thereon,  and  in  no  other  way,  the  court 
should  order  such  disinterment  and  au- 
topsy. Gray  v.  State,  22:  513,  114  S.  W. 
635,  55  Tex.  Crim.  Rep.  90. 


CORPUS    DELICTI. 

In  arson  case,  see  Arson,  1,  2. 
Evidence    to    prove,    see    Evidence,    1982, 
2349,  2378,  2379,  2387. 


CORRESPONDENCE  SCHOOLS. 

Instruction  by,  as  interstate  commerce,  see 
Commerce,  10,  99. 

What  constitutes  doing  business  within 
state  by,  see  Corporations,  421. 

Contract  by  infant  for  course  of  instruc- 
tion, see  Infants,  77. 


CORROBORATION. 

Of  accomplice  or  associate  in  crime,  see 
Evidence,  2366-2371. 

Of  witness,  see  Evidence,  190-203. 

Of  relatrix  in  bastardy  proceeding,  see  Evi- 
dence, 2054. 

Of  confession,  see  Evidence,  2352,  2353. 

Necessity  for,  in  action  for  divorce,  see  Evi- 
dence, 2207-2209. 


CORRUPT  PRACTICES  ACT. 

See  ELBxn'ioNS,  III.  d. 


734 


CX)STS  AND  FEES,  I. 


COSTS  AND  FEES. 

/.  Right  to  recover;  liability  for,   1— 
IS. 
II.  Amount;   practice;   collection,    19— 
32. 

Appealability  of  decree  for,  see  Appeal  and 
Error,  36-39. 

Right  to  review  order  as  to,  see  Appeal 
AND  Error,  339,  570-575. 

Right  to  reversal  of  decree  for  purpose  of 
avoiding,  see  Appeal  and  Error,  1551. 

On  appeal,  see  Appeal  and  Error,  VIII.  d. 

Recovery  back  of  fees  wrongfully  exacted 
by  officer,  see  Assumpsit,  30. 

Power  of  attorney  to  bind  client  for  cost  of 
transcript  on  appeal,  see  Attorneys, 
43. 

What  fund  chargeable  with  costs  of  sale 
when  encumbered  property  is  sold  in 
bankruptcy  free  of  liens,  see  Bankrupt- 
cy, ,30. 

Who  liable  for  costs  of  administration  of 
bankrupt's  estate,  see  Bankruptcy,  134. 

Priority  of  claim  for  cost  of  preserving 
bankrupt's  estate,  see  Bankruptcy, 
137. 

Right  of  clerk  to  fees,  see  Clerks. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  II.  a,  6. 

Construction  of  lessee's  agreement  to  pay 
cost  of  conveyance  to  him,  see  Con- 
tracts, 379. 

Validity  of  contract  to  pay  costs  of  contest- 
ing will  out  of  the  estate,  see  Con- 
tracts, 438,  439. 

Recovery  of,  in  action  for  contribution,  see 
Contribution  and  Indemnity,  9. 

Liability  of  grantor  for  costs  of  defending 
title  against  action  by  stranger,  see 
Covenants  and  Conditions,  25. 

Payment  of,  as  satisfaction  of  criminal  sen- 
tence, see  Criminal  Law,  271. 

Payment  of,   on   discontinuing  eminent  do- 
ff     main  proceedings,  see  Eminent  Domain, 
150, 

On  appeal  in  condemnation  proceedings,  see 
Eminent  Domain,  177,  178. 

Injunction   suit,   see   Injunction,  97. 

Liability  under  policy  indemnifying  against 
liability  for  injuries,  for  costs  of  suit 
brought  by  person  injured,  see  Insur- 
ance, 911. 

When  covered  by  employers'  liability  insur- 
ance,   see    Insurance,    921,    922. 

Finding  on  motion  for  security  for,  as  res 
judicata,  see  Judgment,  121. 

Counsel  fees,  in  action  to  annul  marriage, 
see  Marriage,  28-30,  44. 

Statute  as  to  costs  in  action  against  city, 
see  Municipal  Corporations,  484. 

Motion  to  require  security  for  costs  as  ex- 
tending time  for  answer,  see  Pleading, 
1,35. 

Liability  of  person  procuring  appointment  of 
receiver  for  expenses  of  receivership, 
see  Receivers,  44. 

Right  of  receiver  to  reimbursement  for  costs 
incurred  in  successfully  defending  ac 
tion  against  him  for  fraud,  see  Re- 
ceivers, 46. 

Digest   1-52  L.R.A.(N.S.) 


I  Judgment  for,  by  state  court  in  case  which 

has    been    removed,    see    Removal    or 

Causes,  27,  30. 
Right  of  sheri^  to  fee  for  selling  property 

under  execution,  see  Sheriffs,  1. 
Permitting  recovery  of  nominal  damages  in 

order  to  allow  plaintiflF  costs,  see  Trial, 

694. 

/.  Bight    to    recover;    liability    for. 

(See   also    same   heading   in   Digest   L.Ii.A. 

1-10.) 

1.  An  action  for  the  conversion  of  the 
proceeds  of  a  note  taken  with  knowledge  that 
it  had  been  procured  by  fraud  sounds  in 
tort,  and  not  in  contract,  within  the  rule 
governing  costs,  whero  there  was  no  orig- 
inal contract  relation  between  plaintiff  and 
defendant.  German  Xat.  Bank  v.  Prince- 
ton State  Bank,  6:  556,  107  N.  W.  454,  128 
Wis.  60. 

2.  One  who  has  resisted  performance  of 
liis  contract  to  convey  real  estate,  on  the 
theory  that  the  contract  gave  him  the  alter- 
native right  to  pay  liquidated  damages,  can- 
not avoid  payment  of  costs,  when  compelled 
to  perform,  because  the  deed  tendered  as 
the  consideration  was  not  according  to  con- 
tract. Powell  V.  Dwyer,  11:  978,  112  N.  W. 
499,   149  Mich.   141. 

3.  A  census  taker  is  a  proper  and  nec- 
essary party  to  a  suit  to  set  aside  or  correct 
an  enumeration  alleged  to  have  been  fraud- 
ulently made  by  him,  and  is  therefore 
chargeable  with  costs  therein, — especially 
wli'^re  he  answers  and  defends;  although  lie 
makes  his  return  before  the  suit  is  brought, 
and  his  enumeration  has  been  forwarded  to 
the  executive  council  of  the  state.  Semones 
V.  Needles,  14:  1156,  114  N.  W.  904,  137 
Iowa,  177. 

4.  Wliere  a  party  failed  to  appear  at 
the  time  and  place  designated  in  a  notice  for 
taking  deposition  and  cross-examine  the 
witness,  and  thereafter  duly  and  regularly 
served  notice  of  the  taking  of  the  deposi- 
tion of  the  same  witness,  and  in  pursuance 
thereof  took  the  deposition  of  such  witness 
which  consisted  of  a  cross-examination  of 
the  witness  on  the  deposition  previously 
given,  the  costs  and  expense  of  taking  such 
subsequent  deposition  should  not  be  allowed 
as  a  part  of  the  costs  of  the  case.  Vaughn 
V.  Johnson,  37:  816,  119  Pac.  879,  20  Idaho, 
^69. 

On    dismissal. 

5.  Costs  should  not  be  awarded  against 
a  state  board  of  health  upon  dismissal  of 
the  bill  against  one  improperly  made  a  par- 
ty to  a  suit  to  enforce  its  order.  State  Bd. 
of  Health  v.  St.  Johnsbury,  23:  766,  73  Atl. 
581,  82  Vt,  276.  > 

In  condemnation  proceedings. 
See  also  infra,  23;  Eminent  Domain.  150, 
177,  178. 

6.  Where  the  statute  providing  for  the 
opening  of  roads  provides  that  the  road 
shall  be  opened  by  condemnation,  and  that 
the  sum  to  be  paid  the  owner,  and  the  cost 
of  the  procedure,  be  paid  by  applicant,  the 


COSTS  AND  FEES,  II. 


735 


landowner  cannot  be  charged  with  any  cost 
in  the  trial  court,  although  he  may  file  ex- 
ceptions to  the  commissioner's  report,  and 
demand  a  jury  trial.  Broadway  Coal  Min. 
Co.  V.  Smith,  26:  565,  125  S.  W.  157,  136 
Ky.  725. 
State  liability  for. 

7.  Costs  cannot  be  awarded  against  the 
state  in  civil  actions,  in  the  absence  of  ex- 
press  statutory   authority.      State   v.    Will 
iams,  i:  254,  61  Atl.  207,  101  Md.  529. 

(Annotated) 

Criminal  and  penal  cases. 

Amendment  of  judgment  of  conviction  so 
as  to  charge  accused  with,  see  Crimi- 
nal Law,  231. 

Effect  of  pardon  to  relieve  convict  from  li- 
ability for,  see  Criminal  Law,  299, 
300. 

Sec  also  infra,  12. 

8.  Taxation  of  costs  against  one  ac- 
cused of  crime,  upon  affirmance  of  a  con- 
viction, is  not  prevented  by  a  constitution- 
al provision  that  in  no  instance  shall  any 
accused  person  before  final  judgment  be 
compelled  to  advance  money  or  fees  to  se- 
cure the  rights  herein  guaranteed.  Salt 
Lake  Citv  v.  Robinson,  35:  610,  116  Pac. 
442,   39  Utah,  260. 

9.  Where  a  criminal  proceeding  before 
a  magistrate  is  discontinued,  and  tlie  ac- 
cused bound  over  to  the  district  court, 
where  he  is  convicted  of  the  crime  with 
which  he  stood  charged  before  the  magis- 
trate, the  costs  in  the  district  court  should 
not  be  taxed  against  the  accused.  Larson  v. 
State,  44:  617,  140  N.  W.  176,  93  Neb.  242. 
Security  for. 

Bond  for,  on  appeal,  see  Appeal  and  Errob, 

TIL  g. 
Taking  security  for,  as  waiver  of  solicitor's 

lien,  see  Attorneys,  64,  65. 

10.  A  lawyer  who  undertakes  to  prose- 
cute an  action  for  a  client  who  is  imable  to 
pay  for  his  services,  and  agrees  that  his 
compensation  shall  be  contingent  upon  re- 
covery, and  payable  out  of  the  amount  re- 
covered, is  under  no  legal  or  moral  obli- 
gation to  give  security  for  costs,  even  when 
the  client  is  ordered  to  do  so,  and  is  unable 
to  comply  witli  the  order:  nnd  tlie  action 
should  not  be  dismissed,  either  for  the  in- 
ability of  the  client  to  comply  with  the 
order,  or  for  the  neglect  or  refusal  of  his 
attorneys  so  to  do.  Stevens  v.  Sheriff, 
11:  1153,  90  Pac.  799,  76  Kan.  124. 

(Annotated) 

11.  Dismissal  of  an  action  under  the 
provisions  of  Kan.  Code  Civ.  Proc.  §  584,  be- 
cause of  the  plaintiff's  failure  to  comply 
with  an  order  for  additional  security  for 
costs,  constitutes  an  abuse  of  discretion, 
where  the  plaintiff  filed  an  affidavit  alleg- 
ing that  he  was  unable,  by  reason  of  pov- 
erty, to  give  security,  and  the  court  did  not 
find  that  he  was  financially  able,  or  any 
fact  indicating  that  he  was  not  entitled  to 
proceed  under  his  poverty  affidavit.  Stev- 
ens v.  Sheriff,  11:  11 53,  90  Pac.  799,  76  Kan. 
124. 

12.  A  statute  requiring  the  prosecutor 
to  give  bond  for  costs  in  prosecutions  for 
Digest   1-52   I..R.A.(N.S.) 


crimes  does  not  apply  to  prosecutions  for 
violation  of  municipal  ordinances.  Emer- 
son V.  McNeil,  15:  715,  106  8.  W.  479,  84 
Ark.  552. 

Apportionment;  division. 
Discretion   of   trial   judge   in   taxing  entire 

fee   of   auditor   against   one   party,   see 

Appeal  and  Error,  575. 

13.  The  apportionment  of  costs  is  within 
the  sound  discretion  of  a  court  of  equity 
where  the  plaintiff  at  the  time  he  com- 
menced his  action  was  entitled  to  some  re- 
lief. Whelan  v.  Daniels,  48:  979,  143  N.  W. 
929,  94  Neb.  642. 

14.  When  plaintiff  obtains  judgment  on 
his  demand,  and  defendant  obtains  judgment 
on  his  demand  in  reconvention,  each  of  the 
parties  should  pay  the  costs  incurred  in  ob- 
taining the  judgment  against  him.  Gilly  v. 
Hirsh,  20:  972,  48  So.  442,  122  La.  966. 

15.  The  owner  of  a  way  of  necessity  may 
be  charged  with  one  half  the  cost  of  a  suit 
to  restrain  his  use  of  the  way,  althougli  the 
injunction  is  denied,  if  he  might  have 
avoided  the  litigation  by  the  exercise  of 
care  to  keep  the  gates  closed.  Rater  v. 
Shuttlefield,  44:  loi,  125  N.  W.  235,  146 
Iowa,  512. 

16.  A  plaintiff  who  is  defeated  on  the 
principal  issue  in  controversy  cannot  com- 
plain of  an  equal  division  of  the  costs  of 
the  action.  Rater  v.  Shuttlefield,  44:  loi, 
125  N.  W.  235,  146  Iowa,  512. 

17.  In  an  equitable  action  the  entire  fees 
of  the  auditor  to  whom  the  case  has  been 
referred  may  be  taxed  to  either  party,  under 
statutes  giving  the  judge  in  equitable  ac- 
tions power  in  his  discretion  to  tax  all  the 
costs  to  either  party  and  power  to  fix  the 
fees  of  an  auditor,  which  are  in  the  nature 
of  costs  of  the  reference.  McGregor  v.  Fitz- 
patrick,  25:  50,  65  S.  E.  859,  133  Ga.  332. 

18.  Refusal  to  divide  costs  does  not  con- 
stitute error,  where  the  amount  recovered  by 
the  plaintiff  exceeds  the  amount  for  which 
defendant  offered  to  confess  judgment  after 
the  action  was  begun.  Matheney  v.  Eldo- 
rado, 28:  980,  109  Pac.  166,  82  Kan.  720. 

II.  Amount;  practice;  collection. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Motion   to   retax    costs,    see   Motions    and 

Orders,  6. 
Fees  of  witnesses,  see  Witnesses,  V. 

19.  The  taxation  of  a  separate  bill  of 
costs  in  favor  of  each  of  two  defendants 
whose  defenses  involve  to  some  extent  dis- 
tinct issues  of  fact  and  questions  of  law  is 
not  error  because  they  appear  by  the  same 
attorney.  Rosenheimer  v.  Krenn,  5;  395,  106 
N.  W.  20,  126  Wis.  617. 

20.  A  statute  providing  a  penalty  of  $5 
and  costs  for  excluding  a  person  of  color 
from  a  place  of  amusement  prevails  over 
a  prior  general  statute  governing  the  mat- 
ter of  costs.  Jones  v.  Broadwav  Roller  Rink 
Co.  19:  907,  118  N.  W.  170,  136  Wis.  595. 


736 


COTENANCY. 


Extra  alloirance. 

21.  Extraordinary  costs,  such  as  allow- 
ance of  expenses  and  compensation  of  re- 
ceivers, may,  in  a  proper  case,  be  pro- 
visionally allowed  to  tlie  receiver  out  of 
the  fund  and  ultimately  decreed  to  be  paid 
to  the  party  entitled  to  the  fund  by  his  ad- 
versary. Nutter  V.  Brown,  i:  1083,  52  S.  E. 
88,  58  W.  Va.  237. 

Attorneys'  fees. 

As  to  contract  for  attorney's  fees,  see  At- 
torneys' Fees. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  II.  a,  6. 

Allowance  for,  as  element  of  damages,  see 
Damages,  III.  r. 

In  divorce  suit,  see  Divorce  a.nd  Separa- 
tion, V.  b. 

In  injunction  suit,  see  Injunction,  97. 

22.  The  mere  fact  that  the  construction 
of  a  will  is  necessary  to  determine  whether 
or  not  the  relief  sought  shall  be  granted  in 
a  proceeding  to  partition  real  estate  is  not 
suflicient  to  entitle  defendant  to  an  allow- 
ance of  a  solicitor's  fee  as  costs,  although 
the  relief  is  denied.  Kendall  v.  Taylor, 
37:  164,  92  N.  E.  562,  245  111.  C17. 

23.  Disbursements,  costs,  counsel  fees, 
and  extra  allowances  cannot  be  awarded  to 
the  property  owner  under  a  statute  pro- 
viding for  the  condemnation  of  property 
by  a  municipal  corporation,  which  author- 
izes the  corporation  counsel  to  designate 
counsel  to  represent  the  city,  and  provides 
that  "such  allowance  for  counsel  fees  as 
may  be  made  by  order  of  court,  and  all 
reasonable  expenses  incurred  by  said  cor- 
poration counsel  or  other  principal  legal 
adviser  of  said  counsel  designated  by  iiim," 
sliall  be  paid,  "but  such  fees  shall  not  be 
paid"  until  taxed  by  the  court  "upon  five 
days'  notice  to  the  corporation  counsel." 
Re  Board  of  Rapid  Transit  R.  Comrs.  36: 
647,  90  N.  E.  456,  197   N.  Y.  81. 

24.  A  bank  is  not  entitled  to  an  allow- 
ance of  counsel  fees  upon  successfully  pro- 
tecting itself  from  a  claim  to  interest  on  a 
fund  which  had  been  deposited  with  it  to 
protect  a  purchaser  of  real  estate  from  an 
alleged  lien  on  the  property.  De  Witt  v. 
Keystone  Nat.  Bank,  52:  522,  90  Atl.  340, 
243'  Pa.  534. 

25.  Trustees  in  a  deed  of  trust  are  enti- 
tled to  attorneys'  fees  in  ca  they  are  com- 
pelled to  bring  an  action  to  foreclose  it,  'o 
the  extent  to  which  it  was  necessary  for 
them  to  act,  and  are  not  precluded  from  re- 
covering them  by  the  fart  that  the  real  liti- 
gation is  between  the  maker  of  the  deed  and 
the  beneficiary.  Mitau  v.  Roddan,  6:  275, 
84  Pac.   145,  149  Cal.   1. 

26.  Complainant's  solicitors'  fees  will 
not  be  paid  out  of  the  trust  estate  in  a 
proceeding  by  an  heir  to  annul  his  ances- 
tor's bequest  for  charity, — especially  where 
a  judicial  con.struction  has  already  been 
given  to  the  will  which  is  sufficient  for  the 
purposes  of  the  trustees.  Tincher  v.  Arnold, 
7:  471,  147  Fed.  665,  77  C.  C.  A.  649. 

27.  A  tax  collector  is  not  entitled  to  an 
allowance  for  attorneys'  fees  for  the  serv- 
ices of  the  attorney  by  whom  he  was  repre- 
Digest  1-52  Ii.R.A.(N.S.) 


sented  in  a  suit  to  enforce  payment  of  an 
inheritance  tax,  in  view  of  the  imperative 
statutory  requirement  that  it  shall  be  the 
duty  of  the  district  attorney  to  enforce  the 
provisions  of  the  inheritance  tax  law.  Suc- 
cession of  Levy,  8:  11 80,  .39  So.  37,  115  La. 
377. 

28.  In  a  proceeding  to  secure  the  reduc- 
tion of  an  assessment  which  is  reduced  in 
part,  attorneys'  fees  are  properly  allowed 
against  the  petitioner  to  the  extent  of  10 
per  cent  of  that  portion  of  the  assessment 
with  respect  to  which  no  reduction  is  ob- 
tained. Metropolitan  L.  Ins.  Co.  v.  Board 
of  Assessors,  9:  1240,  39  So.  846,  115  La. 
698. 

29.  In  a  proceeding  to  punish  the  vio- 
lation of  an  injunction  order  le.straining 
the  maintenance  of  a  liquor  nuisance,  an 
allowance  of  $100  as  attorneys'  fees  for  the 
county  attorney  is  not  objectionable,  al- 
though no  evidence  was  introduced  as  to 
the  value  ,of  the  services  rendered,  where 
they  had  been  brought  to  the  attention  of 
the  court  both  on  the  trial  and  by  various 
motions  made  in  tlie  case.  State  v.  Porter, 
13:  462,  91  Pac.  1073,  76  Kan.  411. 

30.  Upon  foreclosure  of  a  mortgage  de- 
clared due  for  failure  to  pay  instalments, 
the  attorney's  fee  should  be  based  on  a  re- 
covery of  the  entire  indebtedness.  Bartlett 
Estate  Co.  v.  Fairliaven  Land  Co.  15:  590, 
94  Pac.  900.  49  Wash.  58. 

31.  The  attorneys'  fee  taxable  as  a  part 
of  the  costs  under  the  act  of  February  4, 
1887,  §  8,  where  the  cause  of  action  is  the 
doing  of  something  made  unlawful  by  some 
provision  of  the  act,  or  the  omission  to  do 
something  required  by  the  act.  and  there  is 
a  recovery  of  damages  sustained  in  conse- 
quence of  any  such  violation  of  the  act, 
may  not  be  taxed  to  the  successful  plain- 
tiff in  an  action  by  a  shipper  against  an 
initial  carrier  for  a  loss  on  a  connecting 
line,  in  which  the  carrier's  liability  is  de- 
pendent upon  tlie  Carmack  amendment  of 
June  20,  1906,  since  the  cause  of  action  is 
the  loss  of  property  which  is  in  no  way 
traceable  to  the  violation  of  any  provision 
of  the  statute.  Atlantic  C.  L.  R.  Co.  v. 
Riverside  Mills,  31:  7,  31  Sup.  Ct.  Rep. 
164,  219  U.  S.  186,  55  L.  ed.  167. 

32.  In  the  absence  of  a  statute  allowing 
it,  a  successful  plaintiff  is  not  entitled  to 
recover  his  attorneys'  fee,  even  in  an  ac- 
tion for  damages  on  account  of  the  de- 
fendant's fraud  or  malicious  misconduct. 
Evans  v.  Central  L.  Ins.  Co.  41:  1130,  125 
Pac.  86,  87  Kan.  641. 


eOTENANCY. 


/.  In  general,  1. 
II.  Creation  and  existence,  2,  3. 
III.  Rights   and   remedies   as   to    each 

other,  4—15. 
IV.  Transfers  of  interests,  16—22. 

Right  of  cotenant  of  personalty  to  attack 
foreclosure  of  mortgage  on  interest  of 
other  cotenant,  see  An  ion  ob  Suit,  44. 


COTENANCY,  I.— III. 


787 


Affect  of  agreement  by  cotenants  purchas- 
ing interest  of  other  co-tenant  to  estab- 
lish an  interest  or  trust  in  the  property, 
see  Contracts,  252. 

Upholding  deed  between  cotenants  otherwise 
ineffective,  as  a  covenant  to  stand 
seised  to  uses,  see  Covenants  and  Con- 
ditions, 20. 

Community  proi^erty  held  by  parties  as  ten- 
ants in  common  after  divorce,  see  Di- 
vorce AND  Separation,  136. 

Right  of  widow  of  cotenant  to  dower  in  im- 
provements made  by  liusband,  see  Dow- 
er, 3. 

Extent  of  recovery  in  ejectment  by  tenant 
in  common  against  stranger,  see  E.ject- 
ment,  21,  22. 

Misleading  information  by  one  having  crop- 
ping contract  with  cotenant,  as  to  inter- 
est of  such  tenant,  to  the  other  coten- 
ant, see  Estoppel,  166. 

Presumption  of  grant  from  joint  tenant,  see 
Evidence,  627. 

Evidence  to  establish  ownership  of  coten- 
ant, see  Evidence,  1277. 

GarnisJiment  of  share  awarded  to  debtor  on 
sale  in  partition  after  transfer  of  his 
interest  in  property  to  cotenant,  see 
Garnishment,    19. 

Tenancy  bv  entirety,  see  Husband  and 
Wife,  'iI.  b. 

Interest  payments  by  one  tenant  as  affect- 
ing running  of  limitations  in  favor  of 
cotenants,  see  Limitation  of  Actions, 
327. 

Running  of  statute  against  one  of  several 
joint  tenants  as  bar  against  all,  see 
Limitation    of    Actions,    239. 

Effect  of  attempted  amendment  by  one  of 
parties  suing  as  cotenants  on  running 
of  limitations,  see  Limitation  of  Ac- 
tions, 297. 

Execution  by  cotenant  of  oil  and  gaa  lease, 
see  Mines,  59,  61. 

Notice  to  mortgagee  of  interest  of  cotenant, 
see  Notice,  75. 

Necessity  that  tenants  in  common  join  in 
suit  in  ejectment,  see  Parties,  144. 

Partners  as  tenants  in  common  of  real  es- 
tate, see  Pabtnership,  49. 

Partition  between  cotenants,  see  Partition. 

Subrogation  to  rights  of  mortgage  given  by 
tenant  in  common,  see  Subrogation,  22, 
23. 
Conveyance  of  land  to  one  in.  trust  for  him- 
self and  another,  see  Teusts,  34. 

/.  In  general. 

(See  also  same  heading  in  Digest  L.R.A 
1-70.) 

:'  1.  A  joint  tenancy  in  lands  held  by 
husband  and  wife  has  the  same  characteris- 
tics as  to  survivorship,  under  the  statutes 
of  the  state  of  Wisconsin,  as  existed  between 

.joint  tenants   at   common   law.     Bassler  v. 

Rewolinski,  7:  701,  109  N.  W.  1032,  130  Wis. 

26. 

Digest  1-52  i:<.R.A.(N.S.) 


//.  Creation  and  existence. 

(See   also   same   heading   in   Digest   L.R.A. 

1-10.) 

Adverse  possession  by  tenant,  see  Adverse 
Possession,  I.  f. 

2.  A  tenancy  in  common,  entitling  one 
of  the  cotenants  to  maintain  an  action  for 
partition,  and  for  rents  and  profits,  the 
other  catenants  being  in  adverse  possession 
under  claim  of  title,  exists  where  it  ap- 
pe^ars  that  several  brothers,  by  joint  con- 
tribution of  labor  and  money,  purchased 
certain  lands,  taking  the  title  in  the  names 
of  all  the  brothers,  with  the  understanding 
that  such  lands  were  to  be  so  held  by  them. 
Schuster  v.  Schuster,  29:  224,  120  N.  W. 
948,  84  Neb.  98. 

3.  The  grant  to  a  father  and  son  of  a 
burial  lot  in  a  public  cemetery  does  not 
make  them  joint  tenants,  so  that,  at  the 
father's  death,  his  interest  will  pass  to  the 
son  to  the  exclusion  of  the  other  heirs, 
where  the  statute  makes  a  conveyance  to 
two  create  a  tenancy  in  common;  and  it  is 
immaterial  that  the  ordinance  of  the  munic- 
ipality for  the  government  of  the  cemetery 
makes  the  lot  indivisible.  Anderson  v.  Ach- 
eson,  9:  217,  110  N.  W.  335,  132  Iowa,  744. 

III.  Rights   and   remedies    as   to    each 
other. 

(See  also  same  heading  in  Digest  L.B.A. 
1-10.) 

Adverse  possession  by  grantee  of  cotenant, 
see  Adverse  Possession,  29-31. 

Measure  of  damages  in  action  against  co- 
tenant  for  removing  doors  and  windows, 
see  Damages,  468. 

Presumption  of  ouster  of  cotenant,  see  Evi- 
dence, 633,  634. 

Matters  concluded  by  judgment  in  parti- 
tion instituted  by  co-tenant,  see  Judg- 
ment, 173. 

As  to  partition  generally,  see  Partition. 

Subrogation  to  cotenant's  right  to  contribu- 
tion, see  Subrogation,  2. 

Right  of  tenant  in  common  to  maintain  tres- 
pass against  cotenant,  see  Trespass,  17. 

4.  A  tenant  in  common  who  rightfully 
occupies  and  uses  the  common  property 
cannot  be  compelled  to  pay  rent  to  his  co- 
tenants  who  are  non'occupants,  where  there 
is  no  showing  of  exclusive  possession  on  the 
part  of  the  actual  occupant,  Or  that  tH% 
other  cotenants  might  not  occupy  the  prop- 
erty at  the  same  time.  Thurstin  v.  Brown, 
29:  238,   109  Pac.  784,   83  Ken.   125. 

(Annotated) 

5.  A  tenant  in  common  may  bind  his 
own  interest  by  authorizing  a  mortgagee  of 
the  property  to  enter  under  the  mortgage, 
but  cannot  without  express  authority  bind 
the  rights  of  his  cotenants.  Barson  v.  Mul- 
ligan, 16:  151,  84  N.  E.  75,  191  N.  Y.  306. 
In  mines. 

6.  A  lease  to  take  oil  and  gas  executed 
47 


738 


COTENANCY,  IV. 


by  a  widow  upon  lands  of  which  she  owns 
an  undivided  half,  is  not  void  as  authoriz- 
ing the  commission  of  waste  with  respect 
to  the  interest  of  the 'owners  of  the  other 
half  of  the  property.  Compton  v.  People's 
Gas  Co.  lo:  787,  89  Pac.  1039,  75  Kan.  672. 
Accounting. 
When   action   to   recover  rents  and   profits 

from  cotenant  is  barred,  see  Limitation 

OF  Actions,  256. 
See  also  supra,  2. 

7.  A  tenant  in  common  who  is  in  sole, 
exclusive,  and  adverse  possession  under 
claim  of  title,  is  liable  to  his  cotenant  for 
an  accounting  for  rents  and  profits.  Schus- 
ter v.  Schuster,  29:  224,  120  N.  W.  94?,  84 
Neb.  98.  (Annotated) 
Contribntion. 

8.  A  cotenant,  acting  in  good  faith  and 
for  the  purpose  of  honestly  bettering  the 
property,  and  not  for  the  purpose  of  em- 
barrassing his  cotenants,  or  encumbering 
the  estate,  or  hindering  partition,  will  be 
entitled  to  compensation  to  the  extent  that 
his  substantial  and  useful  improvements 
have  added  to  the  value  of  the  common 
property.  Helmken  v.  Meyer,  45:  738,  75 
S.  E.  586,  138  Ga.  457. 

9.  A  claim  by  a  cotenant  for  com- 
pensation for  improvements  erected  upon 
the  common  estate  is  an  equitable  charge 
upon  the  land,  and  not  a  title  or  interest 
in  the  land.  Helmken  v.  Meyer,  45:  738, 
75  S.  E.  586,  138  Ga.  457. 

10.  A  tenant  in  common  cannot  compel 
incompetent  cotenants  to  contribute  to  the 
cost  of  improvements  which  he  has  put  upon 
the  property.  Henrikson  v.  Henrikson,  33: 
534,  127  N.  W.  962,  143  Wis.  314. 
Fnrcliase  of  outstanding  title. 

Deed  as  color  of  title  for  adverse  possession, 
see  Adverse  Possession,  32. 

Laches  of  joint  tenant  in  claiming  right  to 
share  in  benefit  of  purchase  by  cotenant, 
see  Appeal  and  Error,  568;  Limita- 
tion OF  Actions,  31,  32. 

Pleading  as  to,  see  Pleading,  448. 

11.  One  of  the  tenants  in  common  of 
mortgaged  property  may  secure  a  title  ad- 
verse to  his  cotenant  by  purchasing  the 
property  from  one  who  bids  it  in  at  a  fore- 
ch)sure  sale.  McLawhorn  v.  Harris,  37:  831, 
72  S.  E.  211,  156  N.  C.  107. 

12.  One  heir  of  a  mortgagor  may  secure 
title  through  the  foreclosure  sale  to  the  ex- 
clusion of  his  coheirs.  Jackson  v.  Baird, 
19:  591,  61  S.  E.  632,  148  N.  C.  29. 

( Annotated ) 

Payment  of  taxes  and  interest. 

Laches  as  barring  right  of  one  cotenant  to 

benefit  of  tax  title  obtained  by  other, 

see  Limitation  of  Actions,  31. 

Form  of  assessment  of  land  held  in  common, 

see  Taxes,  169,  227,  245. 
f  I  13.  One  of  several  joint  contingent  re- 
maindermen who  is  in  possession  of  the 
property  as  lessee  of  the  holder  of  the  lim- 
ited fee,  payibg  an  annual  rental  therefor, 
is  under  no  obligation  personally  to  bear 
the  expense  of  the  taxes  accruing  during 
the  time  of  his  tenancy.  Wilson  v.  Linder, 
42:  242,  123  Pac.  487,  21  Idaho,  676. 
Digest  1-S2  I<.R.A.(N.S.) 


14.  A  tenant  in  common  in  possession  of 
mortgaged  real  estate,  with  the  acquiescence 
of  the  other  cotenants,  and  in  the  absence 
of  any  contract  to  pay  rent,  owes  a  duty 
to  the  other  cotenants  to  pay  the  interest 
maturing  on  the  mortgage  and  taxes  ac- 
cruing on  the  land.  Ellis  v.  Snyder,  32: 
253,  112  Pac.  594,  83  Kan.  638. 

15.  A  tenant  in  common  in  possession  of 
mortgaged  real  estate  owes  the  duty  to  his 
cotenant  to  pay  the  interest  maturing  on 
the  mortgage.  Clute  v.  Clute,  27:  146,  90 
N.  E.  988,  197  N.  Y.  439. 

IV.  Transfers  of  interests. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Validity  as  against  one  tenant  in  common, 
of  oral  contract  of  sale  by  his  cotenant, 
see  Contracts,  274. 

Estoppel  of  cotenant  to  complain  of  plac- 
ing property  in  receiver's  hands,  see 
Estoppel,    111. 

Right  of  tenant  in  common  to  .share  in  pro- 
ceeds of  sale  for  partition  under  deed 
of  cotenant's  interest,  see  Judgment, 
173. 

Delay  as  bar  to  enforcement  of  rights  under 
grant  from  one  cotenant,  see  Limiia- 
TioN  OF  Actions,  25. 

As  to  partition  of  interests,  see  Partition. 

Right  of  purchaser  of  interest  of  one  of 
several  partners  owning  real  estate  as 
tenants  in  common  to  accounting,  see 
Pabtnebship,  60. 

Sale  by  one  tenant  in  common  as  agent  for 
cotenant,  see  Principal  and  Agent,  52. 

Specific  performance  of  oral  contract  to  con- 
vey interest  in  property,  see  Specific 
Performance,  46,  49. 

Specific  performance  of  contract  for  sale 
of  real  property  executed  by  tenant  in 
common  without  authority,  see  Specif- 
ic Performance,  97. 

16.  A  married  woman  who  is  a  joint 
tenant  of  property  with  her  husband  can- 
not, by  devising  her  interest  therein,  aflfect 
the  husband's  right  of  survivorship;  nor 
does  Wis.  Rev.  Stat.  §  2342,  abolishing  the 
disabilities  of  married  women  as  to  the 
acquirement  and  enjoyment  of  property,  con- 
fer upon  her  capacity  to  pass  her  interest  in 
such  property  by  devise.  Bassler  v.  Re- 
wolinski,  7:  701,  109  N.  W.  1032,  130  Wis. 
26.  (Annotated) 

17.  Where,  at  the  cessation  of  use  for 
church  purposes  of  property  granted  with 
the  proviso  that  it  shall  revert  to  the  grant- 
or upon  cessation  of  its  use  for  church  pur- 
poses, the  right  of  reverter  has  become  vest- 
ed in  equal  parts  in  two  heirs  of  the  grant- 
or, a  deed  by  one  after  commencement  of  a 
suit  by  the  other  to  recover  possession  of 
the  property  will  confine  his  right  of  recov- 
ery to  a  moiety  only.  North  v.  Graham, 
18:  624,  85  N.  E.  267,  235  HI.  178. 

18.  One  of  two  cotenants  cannot  carve 
out  a  parcel  of  the  estate  and  convey  it  by 
warranty  deed  to  a  stranger,  so  as  to  vest 


COTTAGES— COUNTIES. 


739 


the  absolute  title  in  him,  or  render  him  a 
cotenant  with  the  nonconsenting  co-owner 
in  the  parcel  convoyed.  Pellow  v.  Arctic 
Iron  Co.  47:  573,  128  N.  W.  918,  164  Mich. 
87. 

19.  The  warranty  deed  of  one  cotenant, 
of  a  parcel  of  the  common  property  by 
metes  and  bounds,  is  not  void,  but  creates 
equities  in  the  grantee  which  will  be  pro- 
tected so  far  as  possible  without  injury  to 
the  non-granting  cotenant,  and'  the  remain- 
ing interest,  if  any,  of  the  grantor,  will  be 
charged  in  a  partition  proceeding  to  make 
good  the  warranties  contained  in  the  deed. 
Pellow  V.  Arctic  Iron  Co.  47:  573,  128  N. 
W.  918,  164  Mich.  87.  (Annotated) 

20.  A  nonconsenting  cotenant  may,  by  a 
course  of  dealing  with  the  remaining  prop- 
erty after  an  attempted  grant  of  a  parcel 
of  the  property  by  the  other  cotenant,  effect 
a  ratification  of  the  grant  so  as  to  estab- 
lish the  rights  of  the  grantee  thereunder. 
Pellow  V.  Arctic  Iron  Co.  47:  573,  128  N.  W. 
918,  164  Mich.  87.  nK! 

21.  Ratification  by  one  of  two  cotenants 
of  minerals  underlying  a  tract  of  land,  of 
an  absolute  grant  by  his  cotenant  of  a 
parcel  of  the  property,  is  effected  by  co- 
operating in  leases  of  the  minerals  under 
the  remaining  property,  and  permitting  the 
mines  to  be  worked  under  them,  and  the  re- 
sulting ore  to  be  partitioned  for  a  long 
series  of  years,  until  the  equities  of  the 
grantees  could  no  longer  be  protected  in 
case  he  demanded  partition  of  the  parcels 
so  granted.  Pellow  v.  Arctic  Iron  Co. 
47:  573,  128  N.  W.  918,  164  Mich.  87. 

22.  After  a  sale  by  one  tenant  in  com- 
mon of  the  whole  common  property  in  par- 
cels, the  cotenant  cannot  ratify  the  sale  as 
to  some  of  the  parcels  and  claim  his  interest 
out  of  the  remainder,  to  the  pita,judice  of 
its  purchasers.  Ft.  Jefferson  Improv.  Co. 
V.  Dupovster,  2:  263,  66  S.  W.  1048,  112  Ky. 
792.  .  i...    >■... 

—    /;.i<>y» 


COTTAGES. 


To  whom  listed  for  taxation,  see  Taxes,  168. 


COTTON. 


Statute  making  weight  determined  by  public 
warehouse  conclusive  between  buyer  and 
seller  of  cotton,  see  Constitutionai, 
Law,  625. 

Provision  in  restraint  of  trade  in  lease  of 
compress,  see  Contbacts,  554;  Injtjnc- 
TION,  128. 

Attempt  of  corporation  to  control  compress 
business,  see  Monopoly  aito  Combina- 
tions, 21. 

CJonspiracy  to  control  prices  for,  see  Monop- 
oly AND  Combinations,  56,  57. 

Declaring  building  used  for  storage  of  cot- 
ton seed  to  be  a  nuisance,  see  Munici- 
pal  COKPORATIONS,    144. 

Digest  1-52  I1R.A.(N.S.) 


Imputing  to  owner  of  cotton  negligence  of 
compress  company,  see  Negligence,  255. 

Destruction  of,  by  fire  while  in  warehouse, 
see  Warehouseman,  8. 

-fnSnt    ^rt'  'ii'ir- ♦♦♦ 


COTTON  SEED  PRODUCTS. 

Illegal  contract  between  manufacturers  of 
cotton  seed  product,  see  Monopoly  and 
Combinations,  58. 

Adulteration  of  cotton  seed  meal,  see  Stat- 
utes, 44.  >,.-..  .-     >, 

«-».» _  ■■':'•> 

COUNCIL. 

Meetings  of  borough  council,  see  Municipai. 

Corporations,  36, 
Legislative  functions  of,  see  Municipal  Cob- 
'(    pobations,  II.  c. 

♦-•-♦ 


COUNSEL  FEES. 

See  Attorneys,   II.  c;   Attorneys'   Feesi 
Damages,  III.  r.  > 

;iibiO 

^^ ;    .75 

COUNTERCLAIM.      '^^  ,,!>,,* 

See  Seet-Off  and  Countebclaim,     ^       i.noM 

.rrt<»o  t)t  noij')/ 


;l:(tr 


COUNTERFEITING.  ' 


■•.".M 


Labels    ajid   trademarks,   see   Trademarks, 

IV. 
Pretended    sale    of    counterfeit   money,    see 

False  Pretenses,  21. 

1(10  tl       1 


COUNTIES. 


/.  As  political  divisions;  organization; 
county  seat,  1. 

a.  In  general;  organisation. 

b.  County  seat,  1. 

II.  Rights  and  liabilities,  2—39. 

a.  In  general,  2—21. 

b.  Warrants ;    indebtedness,    22— 

30. 

c.  Power  to  taxc;  county  purposes, 

31. 

d.  Contracts ;  power  and  proced- 

ure of  officers,  32—39. 

Adverse  possession  against,  see  Adverse 
Possession,  41. 

Assumpsit  by  assignee  of  portion  of  claim 
against  county,  against  second  assignee 
who  has  collected  full  amount,  see  As- 
sumpsit, 27. 

Assumpsit  by,  to  recover  taxes  voluntarily 
refunded,  see  Assumpsit,  38. 

i.e..  ri/.>i.jl..t.     >;«••- i      *.?.  i;_''l 


740 


COUNTIES,  I.  a— II.  a. 


Recovery  from,  by  bank  of  money  paid  upon 
faith  of  forgod  note,  see  Assumpsit,  45. 

Auction  sale  of  county  property;  discre- 
tion of  officer  to  refuse  bids,  see  Auc- 
tion, 1. 

Money  of,  as  trust  fund  in  case  of  insol- 
vency of  bank,  see  Banks,  223,  224,  226, 
227. 

Liability  on  bonds  of  county  officers,  see 
Bonds,  II.  c. 

Subrogation  of  surety  on  bond  of  county 
officer,  see  Subrogation,  32,  33. 

Revievr  by  court  of  action  of  county  board 
in  rearranging  school  districts,  see 
COUBTS,  93. 

Classifying  for  purpose  of  elections  upon 
local  matter,  see  Elections,  18. 

Municipal  authority  to  condemn  land  of 
county  used  for  poor  farm,  see  Eminent 
Domain,  26. 

Estoppel  of,  see  Estoppel,  I.  a. 

Judicial  notice  as  to,  see  Evidence,  16. 

Presumption  of  regularity  of  railroad  aid 
bonds,  issued  by,  see  Evidence,  540,  541. 

Mandamus  to  compel  payment  of  judgment 
against,  see  Judgment,  80. 

License  tax  on  puchasers  at  sales  for  un- 
paid county  tax,  see  License,  54-56,  86. 

Mechanics'  lien  on  county  jail,  see  Me- 
chanics' Liens,  56. 

Ordinance  of,  see  Municipal  Cobporations, 
57,  64,  72;  EEcbftDS  and  Recoeding 
Laws,  2. 

Authority  of  legislature  to  apipoint  coun- 
ty officer,  see  Officebs,  45. 

Bonds  of  county  clerk,  see  Parties,  89. 

Action  to  compel  removal  of  obstruction  to 
operation  of  drawbridge,  see  Parties, 
103;  Waters,  106. 

Power  of  board  of  supervisors  to  fix  situs 
of  debt  for  purpose  cJf  taxation,  see 
.-Taxes,  145.         ,  ■  ■■    ',■•,■<    h  ■ 

Liability  of  county  auditor  for  negligence  in 
failing  to  give  notice  of  tax  sale,  see 
Taxes,  191,  238. 

Prescriptive  right  to  take  water  from 
springs  in  highway,  see  Waters,  313. 

Omission  from  summons  of  name  of  county 
in  which  suit  is  brou^t,  see  Wbit  and 
Process,  2. 

I.  As  political  divisions;  organization; 
county  seat. 

a..In  general;  organization, 

(■See  also  same  heading  in  Digest ;  L.R.A. 

Quo  warranto  to  question  legality  of  organi- 
zation of,  see  Quo  Warranto,  10,  11. 

h.  County   seat.  :,-'rr    -^-t  , 
(See  also  same   heading  in  Digest   L.R.A. 

1-10.)  ..    i-.M,;;.,,        JMI.   '        '.. 

Effect  of  change  of  county  8feat  on  property 
dedicated  for  court  house  purposes,  see 
Dedicati/ON,  43,  44. 

Digest  1-52  L.R.A.(N.S.) 


Injunction  at  suit  of  officers  of,  see  Injuno 
TION,   310. 

Election  as  to  change. 

1.  A  constitutional  provision  that  a 
county  seat  shall  not  be  removed  except  by 
a  majority  vote  of  the  qualified  voters  of 
the  county  voting  at  an  electiun  hold  for 
such  purpose  requires  only  a  majority  of 
the  votes  cast  at  the  election,  and  not  a  ma- 
joritv  of  all  the  electors  in  the  county.  Ex 
parte  Owens,  8:  888,  42  So.  676,  148  Ala.  402. 

II.  Rights  and  liabilities. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Action  against,  for  money  had  and  received, 
see  Assumpsit,  15. 

Duty  in  constructing  and  maintaining 
bridge,  see  Bridges,  2. 

Liability  for  cost  of  maintaining  bridge, 
see  Bridges,  6. 

Liability  for  unauthorized  repairs  to  bridge, 
see  Bridges,  3. 

Interference  with  local  self-government  of, 
see  Constitutional  Law,  144. 

Liability  on  implied  Qontracts,  see  Con- 
tracts, 41-43;  Damages,  104. 

Liability  for  interest,  see  Interest,  I.  g. 

When  limitations  begin  to  run  in  favor  of, 
see  Limitation  of  Actions,  117. 

Liability  for  expense  of  relieving  pauper, 
see  Poor  and  Poor  L.\ws,  5-7. 

Liability  of  property  of,  to  public  improve- 
ment assessment,  see  Public  Improve- 
ments, 44-46. 

Right  to  collect  tolls  for  use  of  bridge,  see 
Tolls  and  Toll  Ro.vds,  1. 

Liability  for  fees  of  witness  in  criminal  case, 
see' Witnesses,  210,  211. 

2.  In  Georgia  a  county  may  incur  a  lia- 
bility for  a  legitimate  current  expense,  pro- 
vided it  has  at  the  time  a  sufficient  sum  in 
its  treasury  which  may  be  lawfully  used  to 
pay  the  liability  incurred,  or  if  a  sufficient 
sum  to  discharge  the  liability  can  be  raised 
by  taxation  during  the  current  year.  Butts 
County  V.  Jackson  Bkg.  Co.  15:  567,  60  S. 
E.  149,  129  Ga.  801. 

3.  A  board  of  health  can  impose  no  lia- 
bility on  the  county  by  its  agreement  to 
furnish  help  to  care  for  crops  of  a  person 
quarantined  for  a  contagious  disease. 
Beeks  v.  Dickinson  County,  6:  831,  108  N. 
W.   311,    131   Iowa,   244. 

Authority  to  employ  tax  ferret. 
See  also  infra,  32,  33. 

4.  A  county  has  no  inherent  power  to 
employ  a  tax  ferret.  Pierson  v.  Minnehaha 
County,  38:  261,  134  N.  W.  212,  28  S.  D.  5.34. 

5.  A  county  is  not  given  authority  to 
employ  a  tax  ferret  by  a  statute  providing 
that  the  taxing  officers  shall  cause  omitted 
property  which  they  discover,  to  ho  placed 
on  the  list,  and  receive  a  percentage  of  the 


COUNTIES,  II.  a. 


741 


penalty  imposed  for  the  omission.  Pierson 
V.  Minnehaha  County,  38:  261,  134  N.  VV. 
212,  28  S.  D.  534.  (Annotated) 

6.  A  county,  in  the  absence  of  express 
legislative  grant,  has  no  power  to  enter  into 
a  contract  for  the  enjployment  of  a  tax 
ferret,  even  though  the  duty  of  discovering 
untaxed  property  has  not  been  placed  upon 
the  public  officials.  Stevens  v.  Henry  Coun- 
ty, 4:  339,  75  N.  E.  1024,  218  HI.  468. 

(Annotated) 
Itiability  for  tort  or  negligence. 
Liability  as  to  bridges,  see  Bridges,  12-18, 

20,    21;    Negligence,    203;    Pleading, 

348;  Tbial,  412. 
Liability  for  injury  on  defective  highway, 

see  Highways,  IV.  a. 
Liability   for   injury  to   pauper   by   failure 

to  give  aid  to  him,  see  Poor  and  Pock 

Laws,  9. 

7.  A  county  is  not  liable  for  the  negli-- 
gence  of  its  health  officers  in  quarantining 
a  person  erroneously  supposed  to  have  a 
contagious  disease.  Beeks  v.  Dickinson 
County,  6:  831,  108  N.  W.  311,  131  Iowa, 
244. 

8.  A  county  is  not  liable  for  losses  to 
a  person  quarantined  for  contagious  disease 
because  of  his  inability  to  attend  to  his 
business,  under  a  statute  providing  for  the 
care  of  infected  persons  and  for  the  pay- 
ment of  expenses  incurred  on  account  there- 
of. Beeks  v.  Dickinson  County,  6:  831,  108 
N.  W.  311,  131   Iowa,  244. 

9.  Neither  a  county  nor  its  overseer  of 
poor  is  liable  for  the  loss  by  a  transient 
pauper  of  his  feet  because  it  failed  to  give 
him  proper  attention  when  he  came  into  its 
borders  with  frozen  feet,  although  the  stat- 
ute requires  relief  to  be  furnished  under 
such  circumstances,  at  least  if  the  overseer 
did  not  know  that  it  was  dangerous  to  send 
a  pauper  on  his  way,  as  he  was  empowered 
by  statute  to  do,  without  relief.  Wood  v. 
Boone  County,  39:  i68,  133  N.  W.  377,  153 
Iowa,  92.  (Annotated) 

10.  A  county,  while  engaged  in  building 
a  bridge  upon  a  public  highway,  acts  as  a 
subdivision  of  the  state  government,  and  is 
not  liable  for  the  negligent  performance  of 
such  work,  unless  expressly  made  so  by 
statute.  Shawnee  County  v.  Jacobs,  21:  209, 
99  Pac.  817,  79  Kan.  76.  (Annotated) 

11.  A  county  which  has  constructed  a 
bridge  where  a  stream  crosses  a  public  high- 
way, which  is  suitable  for  all  purposes  of 
the  highway,  but  which,  by  reason  of  the 
abutments  being  too  low,  obstructs  the  flow 
of  the  water  during  unusually  heavy  rains, 
thereby  overflowing  adjacent  farm  lands,  is 
not  liable  to  the  owner  thereof  for  damages 
so  caused,  under  Kan.  Gen.  Stat.  1901,  §  579, 
providing  that  any  person  who,  without  con- 
tributory negligence,  sustains  damages  by 
reason  of  a  defective  bridge,  may  recover 
damages  ftora  the  county  which  constructed 
such  bridge,  provided  the  county  commission- 
ers have  notice  of  the  defect  at  least  five 
days  before  such  damages  are  sustained, 
since,  under  such  statute,  a  bridge  is  de- 
fective only  when  the  defect  affects  its  safe- 
ty or  usefulness  as  a  part  of  the  public 
.Digest  1-52  L.R.A.(N.S.) 


highway.      Shawnee   County  v.   Jacobs,   21: 
209,  99  Pac.  817,  79  Kan.  76, 

12.  A  county  is  liable  to  the  owners  of 
a  line  of  steamboats,  whose  business  is  in- 
terfered with  by  the  construction  of  a  bridge 
over  the  river  by  the  board  of  county  com- 
missioners, without  authority  of  law,  in  vio- 
lation of  the  act  of  Congress  prohibiting 
such  structures  over  navigable  streams,  and 
without  express  authority  from  the  county, 
where  the  county  did  not  repudiate  the  ultra 
vires  acts  of  its  commissioners.  .  Viebahn  v. 
Crow  Wing  County,  3:  1126,  104  N.  W.  1089, 
96  Minn.  270. 

Liability    for    expense    of    jury. 

13.  Expenses  Incurred  in  caring  for  a 
jury  cannot  be  made  a  county  charge  in  the 
absence  of  a  statutory  provision  therefor. 
Schmelzel  v.  Ada  County,  21:  199,  100  Pac. 
100,  16  Idaho,  32. 

14.  An  expense  incurred  by  order  of  the 
court,  for  shaving  and  hair  cutting  while 
the  jury  was  -kept  together  in  the  progress 
of  a  trial,  is  not  such  a  necessary  expense 
incident  to  and  necessary  in  the  administra- 
tion of  justice  as  to  become  a  county  cliarge, 
aince  the  necessity  for  a  juror's  shaving  and 
having  his  hair  cut  does  not  arise  out  of,  or 
depend  upon,  his  services  on  a  jury,  and  ia 
no  greater  while  serving  on  a  jury  than  at 
any  other  time.  Schmelzel  v.  Ada  County, 
21:  199,  100  Pac.   106,  16  Idaho,  32. 

( Annotated ) 

15.  The  payment  by  a  county  of  a  bill 
for  shaving  and  hair  cutting  of  jurors  while 
kept  together,  either  in  the  progress  of  a 
trial,  or  during  their  deliberations,  is  not 
included  in  or  authorized  by  the  provisions 
of  a  statute  providiitg  that  the  county  shall 
provide  a  room,  with  suitable  furniture,  etc., 
for  the  use  of  the  jury  upon  their  retire- 
ment for  delibe»ation,  and  that,  when  the 
jurors  are  kept  together,  they  must  be  pro- 
vided, at  the  county's  expense,  with  suitable 
and  sufficient  food  and  lodging.  Schmelzel 
v.  Ada  County,  21:  199,  100  Pac.  106,  10 
Idaho,  32. 

Counsel  fees  in  criminal  case. 

16.  A  statute  charging  the  county  with 
the  expense  of  supporting  persons  charged 
with  or  convicted  of  crime,  and  committed 
to  the  county  jail,  does  not  include  fees  of 
counsel  designated  by  the  court  to  defend 
them.  Pardee  v.  Salt  Lake  County,  36: 
377,  118  Pac.   122,  39  Utah,  482. 

17.  Under  statutory  authority  to  coun- 
ty commissioners  to  employ  counsel  to 
prosecute  or  defend  actions  to  which  the 
county  is  a  party,  they  have  no  power  to 
employ  counsel  to  defend  persons  prose- 
cuted for  crime  by  the  state,  and  therefore 
the  judge  cannot  be  regarded  as  their  agent 
in  designating  counsel  for  such  persons  so 
as  to  render  the  county  liable  for  tlie  fees. 
Pardee  v.  Salt  Lake  County,  36:  377,  118 
Pac.  122,  39  Utah,  482. 

18.  Courts  cannot  charge  counties  with 
liability  for  compensation  for  attorneys 
designated,  to  defend  criminals,  in  the  ab- 
sence of  statutory  autliority.  Pardee  v. 
Salt  Lake  County,  36:  377, '1I8  Pac.  122, 
39  Utah,  482. 


742 


COUNTIES,  II.  b. 


Presentation  of  claims;  conditions 
precedent    to    liability. 

19.  A  statute  requiring  the  presentation 
of  claims  against  counties  to  the  board  of 
commissioners  before  suit  can  be  brought 
on  them  does  not  apply  to  suits  to  enjoin 
interference  with  water  rights  or  to  quiet 
title  to  real  estate.  Kiser  v.  Douglas  Coun- 
ty, 41:  io56,  126  Pac.  622,  70  Wash.  242. 

20.  Want  of  proper  notice  will  not  re- 
lieve a  county  from  liability  for  the  expense 
of  medical  attention  to  an  indigent  nonresi- 
dent in  need  thereof  while  within  the  coun- 
ty, under  a  statute  requiring  the  commis- 
sioners to  furnish  aid  in  such  cases  "upon 
notice  thereof,"  where,  at  the  time  the 
services  are  rendered,  the  commissioners  are 
not  in  session,  and  immediate  aid  is  neces- 
sary to  save  life.  Sheridan  County  v.  Den- 
ebrink,  9:  1234,  89  Pac.  7,  15  Wyo.  342. 

u  ( Annotated ) 

ai  21.  A  claim  against  a  county  for  per- 
forming a  surgical  operation  upon  an  in- 
digent person  may  consist  of  only  a  single 
item,  although  the  operation  is  followed 
by  the  necessary  medical  attention,  under  a 
constitutional  and  statutoijy  provision  that 
no  claim  against  a  countylshall  be  audited 
until  a  full  itemized  statenient  in  writing 
shall  be  filed  with  the  proper  officer.  Sheri- 
dan County  V.  Denebrink,  9:  1234,  89  Pac.  7, 
16  Wyo.  342. 

b.  W^arrants;  indebtedness. 

(See  also  same  heading  in  Digest  L.R.A. 
f     1-70.) 

Accord  and  satisfaction  by  acceptance  of 
part  payment  of  claim  against  county, 
see  Accord  and  Satisfaction,  6,  7. 

As  to  county  bonds,  see  Bonds,  III.  b. 

Mandamus  to  compel  publication  of  claims 
audited  against,  see  Mandamus,  43. 

Issue  by   county   auditor  of   tax   refunding 

"'  certificates  to  fictitious  payees,  see  Sub- 
rogation, 33. 

See  also  eupra,  2;  infra,  37. 

22.  Territory  annexed  to  a  county  is  not 
excused  from  paying  its  proportionate  share 
of  the  existing  indebtedness  of  the  county 
to  which  it  is  annexed,  by  a  statute  which 
provides  that  the  faith,  credit,  and  all  taxa- 
ble property  within  the  limits  of  a  county 
as  it  was  constituted  at  the  time  the  in- 
debtedness was  contracted,  must  continue 
pledged  for  the  payment  thereof.  Blake  v. 
Jacks,  27:  1147,  108  Pac.  534,  18  Idaho,  70. 

23.  In  the  absence  of  prohibitory  stat- 
ute, territory  annexed  to  a  county  is  liable 
to  pay  its  proportionate  share  of  the  exist- 
ing indebtedness  of  the  county  to  which  it 
is  annexed.  Blake  v.  Jacks,  27:  1147,  108 
Pac.  534,  18  Idaho,  70.  (Annotated) 

24.  On  the  dissolution,  by  the  judgment 
of  a  court,  of  a  county  attempted  to  be 
organized  out  of  a  portion  of  the  territory 
of  an  existing  county,  the  original  county 
is  not  liable  for  debts  contracted  by  the 
new  county  while  it  existed  as  a  de  facto 
public  corporation,  either  as  successor  of 
Digest   1-52  L.R.A.(N.S.) 


the  latter,  or  on  the  ground  that  it  has 
received  territory  or  property  from  it. 
Barnard  v.  Polk  County,  6:  791,  108  N.  W. 
204,  98  Minn.  289.  (Annotated) 

liimit  of  indebtedness. 
Limit  of  municipal  indebtedness,  see  MuNfr 

cipal  Corporations,  II,  e,  2.  ' 

Limitation  of  indebtedness  of  school  district, 

see  Schools,  56-58. 
See  also  Taxes,  37. 

25.  That  a  county  has  reached  its  con- 
stitutional debt  limit  does  not  prevent  it 
from  incurring  liabilities  for  services  nec- 
essary to  tlie  preservation  of  the  peace  and 
good  order  of  the  community.  Cunning- 
ham v.  Saling,  37:  1051,  112  Pac.  437,  57 
Or.  517. 

26.  The  time  of  letting  the  contract  for 
a  bridge,  and  not  that  of  its  acceptance  and 
the  issuance  of  warrants  therefor,  is  that 
when  the  county  becomes  indebted,  within 
the  meaning  of  a  constitutional  provision 
forbidding  it  to  become  indebted  to  an 
amount  exceeding  in  any  year  the  income 
and  revenue  provided  for  such  year,  where 
the  statute  requires  an  appropriation  to  be 
made  for  the  bridge  before  the  contract  is 
let;  at  least  where  the  contract  requires 
the  bridge  to  be  completed  within  the  year 
in  which  the  contract  is  let.  Trask  v.  Liv- 
ingston.  County,  37:1045,  109  S.  W.  656, 
210  Mo.  582. 

27.  In  determining  whether  or  not  a  debt 
incurred  for  a  public  building  will  exceed 
the  constitutional  limitation  upon  the  in- 
debtedness which  the  county  may  incur,  the 
aggregate  amount  of  the  contract  price 
must  be  considered,  although  it  is  to  be 
paid  in  instalments  out  of  the  tax  levies 
for  a  series  of  yeasrs.  Hagan  v.  Commis- 
sioners Court,  37:  1027,  49  So.  417,  160 
Ala.  544. 

28.  A  county  cannot  avoid  the  constitu- 
tional limitation  upon  its  indebtedness  by 
agreeing  to  pay  the  contract  price  of  a 
public  building,  with  interest,  out  of  the 
proceeds  of  a  special  tax  levy  laid  for  a  ser- 
ies of  years  for  that  purpose,  although  the 
contract  expressly  provides,  that  no  debt 
is  created  or  incurred  by  the  county.  Hagan 
v.  Commissioners  Court,  37:  1027,  49  So. 
417,  100  Ala.  544. 

29.  Where  the  Constitution  provides 
that  no  county  shall  incur  any  liability  in 
any  manner  in  excess  of  the  taxes  for  the 
current  year,  without  assent  of  the  tax- 
payers, an  attorney  who,  upon  designation 
of  the  court,  has  defended  an  indigent  per- 
son accused  of  crime,  cannot  hold  the  coun- 
ty liable  upon  an  implied  contract  for  his 
fees,  without  showing  that  the  claim  would 
not  cause  the  county  to  exceed  the  taxes  ol 
the  year,  or  that  it  had  been  authorized 
bv  the  taxpayers.  Pardee  v.  Salt  Lake 
County,  36:  377,  118  Pac.  122,  39  Utah,  482. 
Warrants.  .aa 
Effect  of  acceptance  of  warrant  for  part  a^ 

claim,  see  Accord  and  Satisfaction,  6; 
Right  of  bank  which  has  credited  fraudulent 
county  warrants  which  it  has  received 
for  collection,  to  charge  off  credit  upon 
discovery  of  fraud,  see  Banks,  182. 


COUNTIES,  II.  c,  d. 


743 


Notice  to,  of  fraud  of  county  commissioner 
as  to  warrants,  see  Limitations  of 
Actions,  170. 

Injunction  against  payment*  of,  see  Injunc- 
tion, 329. 

Hatification  of  void  town  warrants,  see  Mu- 
nicipal Corporations,  201, 

Necessary  parties  to  proceedings  to  have 
warrants  adjudged  invalid,  see  Parties, 
170.      . 

Subrogation  of  one  making  illegal  loan  to, 
see  Subrogation,  7. 

30.  Warrants  issued  in  Georgia  by  coun- 
ty commissioners  for  current  expenses, 
some  of  which  are  held  by  one  who  paid 
them  from  the  proceeds  of  a  loan  which  he 
made  to  the  county,  whereby  he  became 
subrogated  to  the  rights  of  the  several 
holders,  should  be  paid  according  to  the 
priorities  and  in  the  proportion  specified  in 
Ga.  Pol.  Code,  §§  361,  463-4G6.  Butts 
County  V.  Jackson  Bkg.  Co.  15:  567,  60  S.  E. 
149,  129  Ga.  801. 

'  <r/K 
c.  Power  to  tax;  county  purposes. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Purposes  for  which  public  money  may  be 
used,  see  Public  Moneys,  II. 

Sufficiency  of  title  of  statute  as  to,  see  Stat- 
utes, 103. 

As  to  taxes  generally,  see  Taxes. 

31,  A  county  has  no  authority,  unless 
^ven  by  statute,  to  collect  taxes  for  pre- 
-eeding  years  during  which  property  was 
omitted  from  the  tax  list.  Pierson  v.  Min- 
nehaha County,  38:  261,  134  N.  W.  212,  28 
S.  D.  534. 

•d.  Contracts;  power  and  procedure  of 
officers. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Power  to  bind  contractor  to  pay  claim  of 
laborers  and  materialmen,  see  Bonds, 
10. 

Statute  requiring  all  county  printing,  bind- 
ing, etc.,  to  be  done  within  county,  see 
Commerce,  7;  Constitutional  Law, 
454;  Contracts,  802. 

Liability  on  implied  contracts,  see  Con- 
tracts, 41-43;  Damages,  104. 

■Contract  with  county  commissioners  to  dis- 
cover taxable  property  not  assessed,  see 
Contracts,  600. 

Review  by  courts  of  determination  of  su- 
pervisors to  levy  emergency  tax,  see 
Courts,  149. 

Injunction  against  execution  of  void  con- 
tract by,  see  Injunction,  335. 

Mandamus  to  county  officer,  see  Manda- 
mus, I.  d. 

Salary  of  officer,  see  Officers,  II.  b. 

X/iability  of  officers,  see  Officers,  II.  e. 

Power  of  board  of  supervisors  to  fix  situs 
of  debt  for  purpose  of  taxation,  see 
Taxes,  145. 

Digest   1-52  L.R.A.(N.S.) 


Power   to   change   sums   levied   as   tax,   see 

Taxes,  154. 
See  also  supra,   17.  ■^lij     Mi     rju-i:-!  . 

32.  Statutory  power  to  a  county  board 
of  commissioners  to  make  all  contracts  and 
do  all  otlier  acts  in  relation  to  the  property 
and  concerns  of  the  county  necessary  to  its 
corporate  powers  does  not  include  power  to 
employ  a  tax  ferret,  where  the  statutes  give 
such  board  no  authority  over  the  acts  of  the 
officials  charged  with  the  assessment  and 
collection  of  taxes.  Stevens  v.  Henry  Coun- 
ty, 4:  339,  75  N.  E.  1024,  218  HI.  468. 

33.  A  contract  by  which  a  board  of  coun- 
ty commissioners  undertakes  to  employ  a 
private  person  or  firm  to  render  services  in 
aid  of  the  collection  of  taxes,  which  services 
the  statute  makes  it  the  duty  of  certain 
township  and  county  officers  to  render,  is 
ultra  vires,  against  public  policy,  and  void. 
State  ex  rel.  Coleman  v.  Fry,  16:  476,  95 
Pac.   392,  77  Kan.  540. 

34.  The  allowance  by  the  county  court  of 
a  claim  for  services  rendered  to  the  county 
by  a  detective  ratifies  an  irregular  employ- 
ment of  him  by  the  county  attorney.  Cun- 
ningham V.  Saling,  37;  1051,  112  Pac.  437, 
57  Or.  517. 

35.  A  resolution  of  a  board  of  supervi- 
sors employing  a  superintendent  for  con- 
struction of  a  building  does  not,  although 
he  enters  upon  the  performance  of  his  du- 
ties, constitute  a  binding  contract  which 
will  sustain  an  action  in  case  he  is  dis- 
charged if  he  does  not  accept  the  employ- 
ment or  undertake  to  perform  the  duties 
imposed  upon  him,  and  the  contract  is  con- 
strued by  the  parties  as  divisible  payments 
to  be  made  as  the  work  progresses.  Farrell 
V.  Greenlee  County,  49:  380,  136  Pac.  637,  15 
Ariz.  106.  (Annotated) 

36.  A  county  board  may,  under  a  stat- 
ute authorizing  a  county  to  provide  and 
equip  a  public  morgue  which  shall  be  under 
the  control  of  the  board  of  county  com- 
missioners, appoint  a  morgue  keeper,  and 
enter  into  a  contract  with  him  to  perform 
the  services  required  for  a  period  of  one 
year,  during  which  time  he  may  only  be 
discharged  for  causes  which  will  justify 
the  coimty  in  refusing  to  carry  out  the 
contract.  Manley  v.  Scott,  29:  652,  121  N. 
W.  628,  108  Minn.  142. 

37.  County  commissioners  in  Georgia 
have  no  authority  to  contract  in  behalf  of 
a  county  for  a  loan  of  money  to  be  used 
in  defraying  current  expenses,  and  not  ne- 
cessitated by  casual  deficiency  of  revenue, 
although  the  notes  which  evidence  the  loan 
are  payable  within  the  current  year,  and  it 
is  intended  to  discharge  them  from  the  an- 
ticipated revenue  of  that  year.  Butts 
County  V.  Jackson  Bkg.  Co.  15:567,  60  S. 
E.    149,    129    Ga.    801. 

Contracts  beyond  term  of  office. 
Public  policy  as  to,  see  Contracts,  521. 

38.  A  county  board  may,  just  before 
the  expiration  of  the  term  of  office  of  a 
part  of  the  members  thereof,  and  the  taking 
of  office  by  their  successors,  employ  a 
morgue   keeper   for   a    period   of   one   year. 


744 


COUNTS— COURTHOUSE. 


as  such  a  board  is  a  continuing  bcnly,  the 
existence  of  which  is  not  aflected  by  a 
partial  change  in  the  personnel  thereof. 
Manley  v.  Scott,  29:  652,  121  N.  W.  628, 
108    Minn.    142.  (Annotated) 

39.  A  county  board  may,  just  before  the 
expiration  of  the  terms  of  its  members  and 
after  the  election  of  their  successors,  exer- 
cise the  statutory  authority  to  enter  into  a 
contract  for  the  county  printing  for  a  term 
of  two  years,  although  such  contract  will 
extend  over  almost  the  entire  life  of  the 
succeeding  board.  Pickett  Pub.  Co.  v.  Car- 
bon County,  13:  1 1 15,  92  Pac.  524,  36  Mont. 
188. 


COUNTS. 

In    pleading,    see    Action    or    Suit,    107; 

Pleadiniq,  4,  5,  8,  186-188. 
Election  between,  see  Trial,  I.  b. 


■♦»»■ 


COUNTY  ATTORNEY. 

See  District  and  Prosecuting  Attobneys. 


■♦•» 


COUNTY  AUDITOR. 

Failure  of  cotmty  auditor  to  give  notice  of 
tax  sale,  see  Taxes,  191,  238. 


COUNTY  BOARD. 


Review  by  court  of  actions  of,  see  Coubts, 
93. 


COUNTY  CLERK. 


Recovery   back   of   fees   wrongfully   exacted 

by,  see  Assumpso,  30. 
Bond  oi,  see  Parties,  89. 


COUNTY    COMl^ISSIONERS. 

Liability  of,  to  surety  of  tax  collector  for 
failing  to  require  proper  settlement  of 
accounts,  see  Principal  and  Suukty, 
68,  69. 

In  general,  see  Counties,  II.  d. 


COUNTY  COURTS. 


Jurisdiction  of,  sec  Courts,  206. 
Digest   1-32  L.R.A.CN.S.) 


COUNTY    SEAT. 

See  Counties,  1.  b. 


COUNTY  TREASURER. 

Eligibility  of  woman  to  hold  office  of,  see 

Officers,  12. 
Rights  of.  as  to  public  money,  see  Public 

Moneys. 


COUPLERS. 


Admissibility  of  reports  of  car  inspectors  aa 

to   defective   condition   of   coupler,   see 

Evidence,  826, 
Negligence  as  to,  see  Master  and  Servant, 

419-424. 
Contributory  negligence  as  to,  see  M\steb 

and  Servant,  695-698. 


COUPONS. 


Right  of  bank  paying  coupons  on  bpnds  of 

depositor    under    mistaken    belief    that 

there    are    funds    to    meet    them,    see 

Banks,  88. 
Execution   on  judgment  obtained  in   action 

on,  see  Levy  and  Seizure,  4. 
Detached   coupons   as   within    protection   of 

clause  in  mortgage  securing  bonds,  see 

Mortgage,  145. 
Who  may  maintain  action  on,  see  Parties, 

43. 


COUPON  TICKET. 

See  Carriers,  II.  m,  2. 


COURSE   OF  BUSINESS. 

Presumption  from,  see  Evidence,  II.  3. 


COURT  COMMISSIONERS. 

Conferring  upon,  powers  over  juvenile  of- 
fenders, see  Constitutional  Law,  105. 


OOUHTHOUSE. 


As  to  removal  of  countv  seat,  sec  Counties, 

]. 
Dedication  of  property  for,  sco  Dedication, 

43,  44. 

ia 


COURT  REP6RTEES— COURTS, 


T4» 


COURT    REPORTERS. 

Transcript  of  notes  of,  as  bill  of  exceptions, 
sec  Appeal  and  Erroe,  229,  242. 

Dismissal  of  appeal  because  of  imperfect 
stenographic  report  of  testimoniy,  see 
Appeal  and  Eebor,  398. 


COURT    REPORTS. 

Accoimting  for  proceeds  of  sale  of  court  re- 
ports made  from  unauthorized  use  of 
uncapyrighted  manuscripts  and  stereo- 
type plates,  see  Accoxtnting,  7. 

Right  of  one  publishing,  under  contract 
with  state,  to  print  and  sell  copies  of 
reports,  see  Contracts,  13,  ]4. 

Right  of  publishing  company  printing  court 
reports  for  state  to  sell  reports  on  its 
own  account,  see  Principal  and  Agent, 
3. 


COU:^T    RULES. 

As  to  index  of  transcript  on  appeal,  see  Ap- 
peal AND  Error,  152. 

As  to  statement  on  appeal,  see  Appeal  and 
Error,  221. 

Judicial  notice  of,  see  Appeal  and  Error, 
238. 

As  to  admission  of  attorneys,  see  Attor- 
neys, I.  a. 

Imposing  fine  on  attorney  for  ignoring,  see 
ArroRXKYS. 

Constitutionality  of  rules  as  to  procedure, 
see  Constitutional  Law,  II.  a,  7. 

As  to  allowance  of  costs,  as  affecting  valid- 
ity of  agreement  that  costs  of  contest- 
ing will  be  paid  out  of  estate,  see  Con- 
tracts, 439. 


COURTS. 

J.  Jurisdiction    and   potvers   in   gen- 
eral, 1-197. 

a.  In    general;    inherent   powers, 

1-11. 

b.  Over  nonresidents;   territorial 

limitations,   12—47. 

1.  Generally,  12—23. 

2.  Crimes,  24—34. 

3.  Real  pi^operty,   35—41. 

a.  In  general,  35,  36. 

b.  In  other  state,  37—41. 

4.  Foreign  corporations,  42— 

47. 
c  Relation  to  other  departments 
of  government,   48—166. 

1.  In  general;  political  ques- 

tions, 48-80. 

2.  Legislative        department; 

statutes,  81—134. 
a.  hn  general,  81—111. 
Digest  1-52  L.R.A.CN,S.) 


/. — continued. 

b.  Police     power,      112— 

116. 

c.  PubUc     purpose;     tax; 

eminent       d  o  ma  i  n, 
117-124. 

d.  Offices ;  elections,  125— 

127. 

e.  Regulation      of      Trusi- 

ness;    license;    rates, 
128-134. 
8.  Municipal       and       county 
matters,   135—1'66. 

a.  In   general,    135—152. 

b.  Review  of  ordinances, 

153-166. 

d.  Jurisdiction  over  associations, 

etc. ;  conclusiveness  of 
decisions  of  their  trthu- 
nals,    167—193. 

1.  Associations         generally, 

167-178. 

2.  Religious    societies,     179— 

193. 

e.  Legislative  power  as  to,   194— 

196. 

f.  Power  of  municipality  over. 

g.  Loss  of  jurisdiction,   197. 

II.  State  and  teinntorial  courts,   198— 
246. 
a.  Jurisdiction,    198—246. 

1.  In  general,   198—212. 

2.  Original     jurisdiction      of 

appellate  court;  superin- 
tending control,  213— 
235. 

3.  As  dependent  on  amount, 

236,  237. 

4.  Matters  as  to  title,  238. 

5.  Tintsts;      pi^ohate;      insol- 

vency; infants,  23V— 
246. 

6.  Crimes. 

h.  Terms;  plaee  of  sitting. 

c.  Transfer    of    cause, 

d.  Opinions. 

III.  Federal    courts,    247—264. 

a.  In  general;  suits  hy  or  against 
state  or  state  officers,  247, 
248. 

h.  Suits  against  United  States. 

c.  Federal  questions,  249—252. 

d.  As    dependent    on    cltizensJiip, 

253,   254. 

e.  As  dependent  on  atnount,  255. 

f.  In      equity;      following      state 

practice ;  effect  of  state  laws, 
256-261. 

g.  Ancillary  jurisdiction,  262. 
h.  Crimes,  263. 

i.  Districts,    264. 

IV.  Conflict   of   authority;    relation   of 

state  to  Federal,  265—295. 
a.  Exclusiveness    of    jurisdiction 

first   acquired,   265—277. 
t.  Interfei'cnce         with  other 

courts;      injunctions,      278— 

290. 
c.  Proper^  in  custody  of  courts 

<M'    officers,    291,    292. 


748 


COURTS. 


IV. — continued. 

d.  When  state  or  Federal  Juris- 
diction exclusive;  limi- 
tations upon,  293—296. 

1.  In  general,  293—295. 

2.  Criminal   proceedings. 
V.  Rules  of  decision,  296—328. 

a.  In  general,  296. 

b.  Stare     decisis;     previous     de- 

cisions of  same  court,   297— 
309. 

c.  Constiniction  and  constitution- 

ality    of     statutes     or     ordi- 
nances. 

d.  State  courts  following  Federal 

decisions,  310—312. 

e.  Fallowing   decisions   of   courts 

of    other    state    or    country, 
313-315. 

f.  Federal  courts  following  state 

decisions,  316—328. 

Of  admiralty,  see  Admibaltt. 

Alien's  right  to  resort  to,  see  Aliens,  5. 

Rule  of,  as  to  index  of  transcript  on  ap- 
peal, see  Appeal  and  Error,  152. 

Rule  of,  as  to  statement  on  appeal,  see  Ap- 
peal axd  Error,  221. 

Judicial  notice  of  rules  of,  see  Appeal  and 
Error,  238. 

Imposing  fine  on  attorney  for  ignoring  rules 
of,  see  Attorneys,  31. 

Constitutionality  of  rules  as  to  procedure, 
see  Constitutional  Law,  II.  a,  7. 

Of  mediation,  conciliation  and  arbitration, 
see  Arditration. 

Effect  of  agreement  for  arbitration  on  right 
to  resort  to  courts,  see  Arbitration,  2. 

Of  bankruptcy,  see  Bankruptcy, 

Determining  whether  equipment  of  carrier 
is  adequate  and  road  properly  operated, 
see  Carriers,  987,  988. 

Enforcement  and  control  of  charitable  be- 
quests, see  Charities,  II. 

Clerks  of,  see  Clerks. 

Performing  business  of,  throiigh  commis- 
sioner, see  Commissioners. 

Vested  rights  in  erroneous  decision,  see  Con- 
STircmoNAL  Law,  49. 

Effect  of  giving  courts  power  to  review  ac- 
tion of  commission  to  whom  power  is 
delegated,  see  Constitutional  Law,  90. 

Imposing  upon,  duty  to  declare  result  of 
local-option  election,  see  Constitu- 
tional Law,  126. 

Review  by  court  of  award  by  commission 
under  workmen's  compensation  act,  see 
Constitutional  Law,  135. 

Authorizing  county  superintendent  to  re- 
voke teacher's  license  as  depriving  of 
access  to,  see  Constitutional  Law,  375. 

Depriving  employee  of  recourse  to,  see  Con- 
stitutional Law,  574. 

Penalizing  resistance  by  judicial  interfer- 
ence to  enforcement  of  law,  see  Consti- 
tutional Law,  535. 

Delegation  of  power  to,  see  Constitutional 
Law,  I.  d,  3. 

Constitutional  guaranty  of  justice  in,  see 
CoNSTrruTioNAi.  Law,  II.  f. 

Digest   1-52  L.R.A.(N.S.) 


Change  of  decisions  as  affecting  coHtracts,. 
see  Constitutional  Law,  II.  g,  1,  b. 

Contempt  of,  see  Contempt. 

Rule  as  to  allowance  of  costs  as  affecting 
validity  of  agreement  that  costs  of  con- 
testing will,  shall  be  paid  out  of  es- 
tate, see  Contracts,  439. 

Public  policy  as  to  attempt  to  modify  or 
control  procedure,  see  Contracts,  442. 

Aiding  in  enforcement  of  illegal  contract, 
see  Contracts,  III.  g. 

Courts  martial,  see  Courts  Martial. 

What  constitutes  dicta,  see  Dicta. 

Validity  of  act  providing  for  election  of 
judicial  officers,  see  Elections,  5,  27. 

Presumption  in  favor  of  judicial  acts,  see 
Evidence,  502-508. 

Oral  evidence  of  transactions  in,  see  Evi- 
dence, 711. 

Decision  of  Federal  court  sitting  in  state  as 
evidence  of  law  of  that  state,  see  Evi- 
dence, 771. 

Parol  evidence  as  to  records  of,  see  Evi- 
dence, 1040,  1041. 

Judicial  notice  by,  see  EJvidence,  I. 

Enforcement  by,  of  orders  of  board  of 
health,  see  Health,  4. 

Acts  of,  on  holiday,  see  Holidays,  2,  3. 

Indictment  for  corruptly  attempting  to  in- 
fluence officers  of,  see  Indictment,  etc., 
107. 

Source  of  power  to  grant  injunction,  see 
Injunction,  2. 

By-law  of  benefit  society  denying  member's- 
right  to  resort  to,  see  Insurance,  112- 
114. 

Judicial  review  of  decision  of  interstate 
commerce  commission,  see  Interstate 
Commerce  Commission,  11. 

As  to  judges,  see  Judges. 

Power  to  appoint  person  to  represent  class- 
of  which  no  member  is  in  existence,  see 
Judgment,  219. 

As  to  justices  of  the  peace,  see  Justice  or 
the  Peace. 

As  to  juvenile  courts,  see  Jxtvenile  Offend- 
ers. 

Judicial  proceedings  as  privileged  commu- 
nications, see  Libel  and  Slander,  II. 
e,  4. 

Mandamus  to  compel  one  usurping  office  to- 
turn  over  papers,  see  Mandamus,  13. 

Mandamus  to,  see  Mandamus,  I.  b. 

Trial  of  offense  by  military  tribunals,  see 
Martial  Law,  3-5,  8. 

Use  of  initials  of  name  in  court  proceed- 
ings, see  Name,  4. 

Grant  of  new  trial  by,  see  New  Trial. 

Lack  of  authority  to  provide  remedy  for 
invasion  of  right  of  privacy,  see  Pbi- 
vacy,  1. 

Prohibition  to  restrain,  see  Prohibition. 

Review  by,  of  order  of  public  service  com- 
mission, see  Public  Service  Commis- 
sion, 10-19. 

Power  in  quo  warranto,  see  Quo  Warranto. 

Records  of,  see  Records  and  Recording 
Laws,  II. 

As  to  removal  of  causes,  see  Removal  OF" 
Causes. 


COURTS,  I.  a. 


747 


Effect  of  inability  to  enforce  judgment  by 
levy  and  sale  as  reason  for  declining 
jurisdiction,  see  State  Institutions, 
8. 

Partial  invalidity  of  statute  as  to,  see 
Statutes,  65,  66. 

Special  legislation  regulating  practice  in, 
see  Statutes,  166. 

Constitutionality  of  act  providing  for  elec- 
tion of  judicial  officers  by  separate  bal- 
lot, see  Statutes,  184. 

Subrogation  of  surety  on  bond  of  court 
clerk,  see  Subrogation,  32. 

Judicial  proceedings  on  Sunday,  see  Sun- 
day, I. 

Effect  of  resort  to,  by  legatee  to  resist  de- 
duction of  succession  tax  from  legacy, 
see  Taxes,  294. 

Binding  effect  upon  both  state  and  Federal 
courts  of  treaty,  see  Treaties,  3. 

Functions  of,  on  trial,  see  Trial,  II. 

Interference  with  water  rates,  see  Waters, 
418. 

Process  of,  see  Writ  and  Process. 

I.  Jurisdiction  and  powers  in  general, 
a.  In  general;  inherent  powers. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Jurisdiction  of  court  under  submitted  ques- 
tion, see  Agreed  Case,  2. 

Jurisdiction  on  appeal,  see  Appeal  and  Er- 
ror. 

Considering  on  appeal  question  of  jurisdic- 
tion, see  Appeal  and  Error,  VII.  j,  2. 

Waiver  of  question  of  jurisdiction,  see  Ap- 
peara.n'ce,  16-21. 

Jurisdiction  to  enforce  attorney's  liens,  see 
Attorneys,  74,  75. 

Jurisdiction  of  bankruptcy  court,  see  Bank- 
ruptcy, 3,  4,  17. 

Conferring  upon,  jurisdiction  to  make  con- 
clusive determination  that  absentee  is 
dead,  see  Constitutional  Law,  396. 

Validity  of  attempt  to  oust  court  of  jiiris- 
diction,  see  Constitutional  Law,  455; 
Contracts,  441. 

Statute  limiting  jurisdiction  of,  as  term 
for  which  it  may  impose  imprisonment, 
see  Criminal  Law,  259. 

Jurisdiction  of  controversy  between  divorced 
father  and  guardians  appointed  for 
children  arfter  mother's  death,  see  Di- 
vorce AND  Separation,  148. 

Waiver  of  objection  to  equitable  jurisdic- 
tion, see  Equity,  17. 

Presumption  as  to  jurisdiction,  see  Evi- 
dence, 509,  510. 

Sufficiency  of  indictment  presented  by  pri- 
vate person  to  give  court  jurisdiction, 
see  Indictment,  1. 

Effect  of  lack  of  jurisdiction  to  issue  in- 
junction to  render  unnecessary  employ- 
ment of  counsel  to  secure  dissolution, 
see  Injunction,  432. 

Effect  of  absence  of  jurisdiction  to  enjoin 
prosecution,  on  bond  given  in  proceed- 

*^  '    ing  for  that  purpose,  see  Injunction, 

•*'■"    435. 

Digest  1-52  L.R.A.(N.S.) 


Question  whether  suit  is  within  jurisdiction 
of  courts  or  interstate  commerce  com- 
mission, see  Interstate  Commerce 
Commission,  2. 

Collateral  attack  on  judgment  for  lack  of 
jurisdiction,  see  Judgment,  128-138, 
144. 

1.  Even  though  defectively  organized 
a  municipal  court  authorized  by  law  is  at 
least  a  de  facto  court,  and  the  officers  there- 
of de  facto  officers,  and  the  right  of  the  court 
to  exercise  judicial  functions  can  be  inquired 
into  only  at  the  instance  of  the  state  in  di- 
rect proceedings  brought  for  that  purpose. 
State  ex  rel.  Bales  v.  Bailey,  ig:  775,  118 
N.  W.  676,  106  Minn.  138. 

2.  Tlie  criminal  court  of  appeals  is 
charged  with  the  duty  of  seeing  that  we 
have  a  uniform  system  of  criminal  juris- 
prudence in  Oklahoma,  and  it  is  the  court 
of  last  resort  and  the  supreme  arbitrator 
for  the  settlement  of  all  questions  relating 
to  criminal  law  in  this  state.  State  ex  rel. 
Tucker  v.  Davis,  44:  1083,  130  Pac.  962,  9 
Okla.  Crim.  Rep.  94. 

3.  Authority  to  test  the  jurisdiction  of 
a  commission,  which  depends  upon  consent 
of  the  parties  to  be  affected  by  its  action, 
is  conferred  by  a  statute  empowering  the 
court  to  set  aside  the  award  in  case  the 
board  acted  without  or  in  excess  of  its 
powers.  Borgnis  v.  Falk  Co.  37:  489,  133 
N.  W.  209,  147  Wis.  327. 

4.  A  court  which  has  constitutional 
power  to  decide  only  questions  of  law  will 
not  determine  whether  or  not  questions 
raised  in  a  cause  are  of  sufficient  import- 
ance to  require  an  injunction  against  cer- 
tain proceedings  alleged  to  be  unconstitu- 
tional, until  they  can  be  determined  after 
a  trial  of  the  issues.  Smith  v.  Smythe, 
35;  524,  90  N.  E.  1121,  197  N.  Y.  457. 

5.  The  jurisdiction  of  a  court  in  which 
an  indictment  is  found  or  an  accusation  is 
lodged  is  not  impaired  by  the  manner  in 
which  the  accused  is  brought  before  the 
court.  Re  Moyer,  12:  227,  85  Pac.  897,  12 
Idaho,  250. 

6.  llie  jurisdiction   of  a  judge  over  a 
case    ends   with   his   granting   a   change   of 
venue  to   another   court.     Priddy  v.   Boice, 
9:  718,  99  S.  W.  1055,  201  Mo.  309. 
Povrers  generally;  inherent  poivers. 
To  correct  record  after  appeal,  see  Appeal 

AND  Error,  100. 

To  require  physical  examination,  see  Ap- 
peal AND  Error,  627,  628;  Discovery 
AND  Inspection,  28. 

To  obviate  defect  of  unincorporated  associa- 
tion's incapacity  to  take  charitable  be- 
quest, see  Charities,  38. 

To  punish  for  contempt,  see  Contempt,  ITT. 
b. 

To  charge  county  with  liability  for  compen- 
sation of  attorneys  designated  to  de- 
fend criminals,  see  Counties,  18. 

To  suspend  sentence  or  execution  thereof, 
see  Criminal  Law,  273-282. 

To  double  damages  allowed  by  verdict,  see 
Damages,  731. 


748 


COURTS,  I.  b,  1. 


To  compel  private  corporation  to  produce 
books  and  papers,  see  Discovkrv,  25. 

To  award  alimony,  see  DivoBCE  and  Separa- 
tion, V. 

.To   control  discretion   vested   in   executrix, 

^f>.'  see  Ekecutobs  and  Administrators, 
41. 

To  surcharge  executors'  account  without  ex- 
ception thereto,  see  Exeoutobs  and  Ad- 

MINISTftATOBS,    128. 

To  appoint  amious  curice  to  elccept  to  execu- 
tors' account,  see  Executoes  and  Ad- 

i  MINI8TBATOES,    129. 

(SCo  control  discretionary  power  to  appoint 

•  i:  between  definitely  described  individuals, 
see  Powers,  4. 

To  add  interest  to  amount  awarded  by  jury, 
see  Trial,  1161. 

Over  attorneys,  see  Attorneys,  I. 

Discretion  as  to  permitting  revival,  see 
Abatement  and  Kevival,  31. 

Discretion  as  to  granting  bail,  see  Bail  and 
Recognizance,  10. 

Discretion  as  to  permitting  view  by  jury, 
see  Evidence,  898. 

Interference  by,  with  practice  of  transpor- 
tation companies,  see  Carbiers,  989. 

Enforcement  and  control  of  charitable  be- 
quests, see  Charities,  II. 

Delegation  of  power  to,  see  Constitutional 
Law,  I.  d,  3. 

.Conferring  upon,  power  to  appoint  experts 

g\      in   criminal   case,   see  Constitutional 

}        Law,  618, 

Division  of  property  by,  where  donee  of 
power  to  appoint  dies  without  exercis- 

j , ;      ing  discretion  vested  in  him,  see  Pow- 

p,        EBS,  3. 

7.  Courts  of  justice  have  the  inherent 
power  and  authority  to  incur  and  order 
paid  all  such  expenses  as  are  neces.sary  for 
the  holding  of  court,  and  the  disdiarge  of 
the  duties  thereof,  in  the  administration  of 
justice.  Schmelzel  v.  Ada  County,  21:  199, 
100  Pac.  106,  16  Idaho,  32. 

8.  A  court  has  inherent  power  to  issue 
a  commission  to  an  officer  in  another  state 
to  take  a  deposition  necessary  to  secure 
evidence  for  the  trial  of  an  action  pending 
before  it.  McClure  v.  McClintock,  42:  388, 
150  S.  W.  332,  849,  150  Ky.  265,  773. 

9.  The  Supreme  court  of  Mississippi 
has  no  power  to  prescribe  rules  for  €he 
government  of  the  trial  courts  of  the  state. 
Yazoo  &  M.  V.  R.  Co.  v.  Kirk,  42:  1172,  58 
So.  710,  834,  101  Miss.  822. 

10.  A  court  which  has  jurisdiction  of  the 
subject-matter,  and  which  acquires  juris- 
diction of  the  person  of  the  defendant  by 
service  of  process,  is  vested  with  full  power 
and  authority  to  hear  and  determine  all 
questions  that  occur  in  the  case  and  are 
essential  to  determine  the  merits  of  the  is- 
sues raised,  and  it  likewise  has  authority 
and  jurisdiction  to  make  such  orders  and  is- 
sue such  writs  and  process  as  may  be  neces- 
sary and  essential  to  carry  the  decree  into 
eflfect  and  render  it  binding  and  operative. 
Taylor  v.  Hulett,  19:  535,  97  Pac.  37,  15 
Idaho,  265. 

Pow^er  of  parties  to  affect. 

11.  T'ailure  of  the  defertdants  to  object 
Digest  l-6a  I..R.A.(N.S.) 


to  the  jurisdiction  of  the  court  over  a  pro- 
ceeding to  compel  taxing  districts  claim- 
ing jurisdictinji  over  the  same  proper- 
ty, to  come  into  coujt  and  settle  th^ir 
claims  thereto,  will  not  confer  jurisdic- 
tion on  the  court,  since  it  is  against  public 
policy  for  a  court  of  equity  to  interfere 
with  the  collection  of  taxes,  wliere  the  stat- 
utes have  prescribed  a  method  for  deter- 
mining the  validity  of  the  tax  by  paying 
it  and  bringing  an  action  to  compel  its  re- 
turn. Welch  V.  Boston,  35:  330,  94  N.  E. 
271,  208  Mass.  326. 

b.  Over  nonresidents;   territorial  Ittm- 
tations, 

1.  Generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

As  to  Federal  districts,  see  infra.  III.  i. 

Jurisdiction  to  render  personal  judgment 
against  nonresident  in  attachment  pro- 
ceedings, see  Attachment,  30. 

Right  of  courts  of  one  state  to  enforce  laws 
of,  or  causes  of  action  arising  fn,  an- 
other state,  see  Conflict  of  Laws. 

Jurisdiction  of  garnishment  proceedings 
against  nonresident,  see  Garnishment, 
6. 

Effect  of  domicil  on  jurisdiction  of  action 
to  annul  marriage,  see  Marriage,  27. 

Partial  invalidity  of  statute  as  to,  see 
Statutes,  65,  66. 

As  to  venue,  see  VenuSs. 

12.  The  courts  of  a  state  in  which  a  car- 
rier is  doing  business  are  not  deprived  of 
jurisdiction  of  a  suit  to  compel  it  to  re- 
ceiv^e  property  for  transportation  into  an- 
other state,  on  the  theory  that  it  involves 
property  and  rights  of  the  carrier  beyond 
the  territorial  reach  of  the  court.  Louis- 
ville &  N.  R.  Co.  V.  F.  W.  Cook  Brew.  Co, 
40:  798,  172  Fed.  117,  96  C.  C.  A.  322.      '»*^ 

13.  The  courts  of  a  state  have  no  juris- 
diction of  an  action  against  a  railroad 
owned  and  operated  by  a  foreign  sovereign, 
the  revenue  from  which  becomes  part  of 
the  public  revenue  of  his  country,  to  recover 
damages  for  personal  injuries  received  with- 
in his  dominion  and  caused  by  the  negli- 
gent operation  of  the  road.  Mason  v.  In- 
tercolonial R.  Co.  16:  276,  83  N.  E.  876, 
197    Mass.    349.  (Annotated) 

14.  An  action  to  recover  rent  for  use 
and  occupation  af  premises  of  which  de- 
fendants were  tenants  by  Sufferance  is  not 
within  a  statute  requiring  actions  for  the 
determining  of  questions  affecting  title  to 
•real  property  to  be  brought  in  the  county 
where  the  land  is  located,  although  the  an- 
swer sets  up  title  in  defendants,  and  there- 
fore the  action  may  be  maintained  in  a 
state  Other  than  that  where  the  land  is 
located.  Sheppard  v.  Cceur  d'Alene  Lumber 
Co.  44:  267,  112  Pac.  932,  62  Wash.  12.      - 

(Annotated) 

15.  An  action  in  the  name  of  the  stat« 
to  which  the  bond  runs  may  be  maintained 

.  .J  S<5-1   *aoa*Ct 


COUKTS,  I.  b,  2. 


749 


upon  it  by  one  for  whose  benefit  it  is  tak- 
en, in  the  courts  of  another  state,  which  is 
tlie  domieil  of  the  oblig«rs,  to  compel  pay- 
ment of  the  fund  to  the  court  which  grant- 
ed the  administration,  that  it  may  be  dis- 
tributed according  to  law,  where,  the  lat- 
ter being  the  state  of  testator's  residence, 
one  of  its  citizens,  to  get  possession  of  his 
personal  property  located  in  the  former  one, 
secures  an  appointment  as  administrator 
by  its  court,  gives  an  administration  bond 
running  to  the  state,  and  then  removes  the 
fund  without  authority,  and  converts  it  to 
his  own  use,  and  becomes  insolvent,  Cut- 
rer  v.  State  ex  rel.  Leggett,  35:333.  54  So. 
434,  98  Miss.  841.  (Annotated) 

16.  A  receiver  cannot  confer  upon  the 
court  jurisdiction  of  members  of  a  mutual 
insurance  company  who  are  nonresidents  of 
the  county,  by  joining  them  in  a  single 
equity  suit  to  compel  payment  of  assess- 
ments which  were  overdue  at  the  time  of 
his  appointment,  wliere  no  facts  exist  to 
give  equity  jurisdiction  of  the  action,  the 
liabilities  of  the  respective  members  upon 
their  assessments  being  several,  and  not 
joint.  Burke  v.  Scheer,  33:  1057,  130  N.  W. 
9C2,  89  Neb.  80. 

17.  The  teiliporary  presence  within  a 
state  of  a  child  with  its  father,  whose  dom- 
ieil is  in  another  state,  gives  the  court  of 
that  state  no  jurisdiction  of  a  suit  by  its 
mother,  who  is  also  a  nonresident,  to  se- 
cure custody  of  it.  Lanning  v.  Gregorv, 
10:  6go,  99  S.  W.  542,  100  Tex.  310. 

(Annotated) 

18.  The  superior  court  of  a  county 
wherein  land  upon  which  an  execution  has 
been  levied  lies,  before  which  the  trial  of 
a  statutory  claim  which  had  been  inter- 
posed by  a  nonresident  is  pending,  has 
jurisdiction  of  an  ancillary  petition  in  aid 
of  the  levy,  insfituted  by  the  plaintiff  in 
execution  against  such  claimant,  as  to  mat- 
ters germane  to  the  issue  involved  in  the 
claim  case,  since  as  to  such  issi>es  the  non- 
resii^f^iit  by  filing  his  claim  waived  the 
constitutional  guaranty  tliat  a  person  may 
not  be  sued  outside  of  the  covinty  of  his 
residence.  Thomason  v.  Thompson,  26:  536, 
59  S.   E.   236,   129  Ga.   440. 

Cause  of  actioa  arising  on  river  form- 
ing state  boundary. 
See  also  Boundabies,  I. 

19.  The  grant  by  Congress  to  states  of 
concurrent  jurisdiction  over  riv^ers  which 
separate  them,  so  far  as  they  form  a  common 
boundary,  extends  only  to  the  body  of  the 
stream  which  constitutes  the  common  high- 
way of  comnverce,  and  not  to  the  interlacing 
unnavigable  water  belts,  streams,  and 
streamlets  which  emerge  from  the  main 
body,  and  make  their  way  inland  so  as  to 
come  within  the  body  of  the  counties,  but 
over  the  latter  the  state  within  which  they 
are  found  has  exclusive  jurisdiction,  and 
may  enforce  its  fish  and  game  laws  upon 
them.  Little  v.  Green,  25:649,  123  N.  W. 
367,  144  Iowa,  492. 

Rights  in  interstate   stream. 

20.  The  jurisdiction  of  the  courts  of  one 
'Btate  to  ascertain  and  determine  water  ap- 

Digest   1-52  L.R.A.(N.S.) 


propriations  within  the  state  is  not  ousted 
on  defeated  by  the  fact  that  a  defendant 
sets  up  in  his  answer  that  Ire  has  an  appro- 
priation of  the  waters  of  the  stream  in  con- 
troversy, and  that  he  diverts  the  waters 
from  such  stream  in  another  state  for  use 
and  application  in  irrigating  lands  situated 
within  that  state.  Tavlor  v.  Hulett,  19: 
535,  97  Pac.   37,  15  Idaho,  265. 

21.  The  courts  of  one  state,  in  ascertain- 
ing, decreeing,  and  protecting  property 
rights  in  water  appropriations  within  the 
jurisdiction  of  the  state,  may,  at  the  same 
time  and  for  the  same  purpose,  inquire  into 
and  determine  rights  and  priorities  that  are 
located  and  situated  higher  up  the  stream 
and  beyond  the  state  line,  in  order  fairly  and 
finally  to  determine  judicially  the  relative 
rights  of  the  parties,  and  decree  the  extent 
of  title  and  right  of  possession  of  the  sub- 
ject-matter located  ami  situated  within  the 
state.  Taylor  v.  Hulett,  19:  535,  97  Pac. 
37,    15    Idaho,    265.  (Annotated) 

22.  A  state  court  which  has  jurisdiction 
of  both  the  subject-matter  and  of  the  person 
of  the  defendants,  in  an  action  by  a  resident 
of  the  state  against  nonresidents,  to  deter- 
mine their  respective  rights  in  an  interstate 
stream,  has  jurisdiction  to  grant  an  injunc- 
tion to  prevent  the  diversion,  in  another 
state^  of  the  waters  of  the  stream  by  the 
nonresident  defendants,  to  the  detriment  of 
the  plaintiff,  the  injunction  being  merely 
ancillary  to,  and  in  aid  of,  a  decree  estab- 
lishing and  quieting  the  latter's  title,  and 
being  a  remedy  in  personam,  acting  only 
upon  the  person  of  the  party  enjoined.  Tay- 
lor V.  Hulett,  19:  535,  97  Pac.  37,  15  Idaho, 
265. 

Liability    of    stockboldei^    of    foreign 
corporation.  'I'.j-''    •■"    "  "    "■''"•- 

See  also  supra,  16.  ' '"      .'*'   "!.'"'" 

23.  Holders  of  unpaid  stock  in  a  foreign 
corporation  cannot  defeat  an  action  by  its 
trustee  in  bankruptcy  to  set  aside  a  fraudu- 
lent dividend  applied  in  satisfaction  of  such 
subscriptions,  and  compel  their  payment,  on 
the  theory  that  it  is  an  attempt  to  regulate 
the  internal  affairs  of  such  corporation, 
which  is  not  a  party  to  the  proceeding, 
where  all  solvent  stockholders  are  parties, 
since  the  corporation  and  creditors  are  rep- 
resented by  the  trustee,  and  all  necessary 
parties  are  therefore  before  the  court.  Ed- 
wards V.  Schillinger,  33:  895,  91  N.  E.  1048, 
245  111.  231.  (Annotated) 

2.  Crimes. 

(See  also   same   heading   in   Digest  L.R.A. 
1-10.) 

Rights  of  courts  of  one  state  to  enforce  laws 
of  another  as  to,  see  Conflict  of  Laws. 
Venue  of  action,  see  Venue,  17-19. 

24.  One  accused  of  crime  cannot  object 
to  the  jurisdiction  of  ^e  court  upon  the 
ground  that  he  was  forcibly  brought  within 
it  tinder  a  writ  of  habeas  corpus  by  which 
he  was  removed  from  a  prison  where  he  was 


750 


COURTS,  I.  b,  3. 


serving  a  penal  sentence  within  the  state. 
Com.  V.  Ramunno,  14:  209,  68  Atl.  184,  219 
Pa.  204. 

25.  The  court  within  whose  jurisdiction 
a  fraudulent  scheme  is  first  devi.sed  has 
jurisdiction  of  the  offense  regardh^ss  of 
where  tlie  formal  contract  was  executed. 
Thomas  v.  United  States,  17:  720,  156  Fed. 
897,  84  C.  C.  A.  477. 

26.  The  courts  of  one  state  have  no 
jurisdiction  to  try  one  for  the  murder  of  a 
person  who  dies  there  as  the  result  of  an 
act  done  in  another  state  after  tlie  perform- 
ance of  whicJi  the  deceased  removes  from 
one  state  to  the  other.  Com.  v.  Apkins,  39: 
823,  146  S.  W.  431,  148  Ky.  207. 

(Annotated) 

27.  A  nonresident  may  be  prosecuted  in 
a  police  court  of  a  city,  the  jurisdiction  of 
which  is  limited  to  offenses  occurring  with- 
in its  limits,  for  permitting  his  cow  to  be 
at  large  within  the  city,  contrary  to  a  mu- 
nicipal ordinance,  although  he  was  not  per- 
sonally within  the  city  at  the  time,  if  proc- 
ess is  subsequently  served  upon  him  within 
the  jurisdiction.  Tutt  v.  Greenville,  33:  331, 
134  S.  W.  890,  142  Ky.  536.         (Annotated) 

28.  A  state  may  provide  for  the  punish- 
ment of  anyone  who  circulates  a  libel  with- 
in the  state,  although  he  may  be  a  nonresi- 
dent and  subject  to  punishment  for  his  act 
elsewhere.  State  v.  Piver,  49:  941,  132  Pac. 
858,  74  Wash.  96. 

29.  The  fact  that  at  the  time  of  the 
enactment  of  a  statute  making  it  criminal 
for  a  husband  to  fail  to  provide  for  the 
support  and  maintenance  of  his  wife  in 
destitute  circumstances,  the  husband  was  a 
resident  of  another  state,  is  no  defense  to 
his  prosecution  in  the  state  enacting  the 
statute,  where  he  has  voluntarily  come  into 
the  latter  state.  State  v.  Gillmore,  47:  217, 
129  Pac.  1123,  88  Kan.  835.     ^.,  ;     ,,. 

30.  A  husband,  resident  ojf,  Another 
state,  who  has  not  shown  that  his  wife 
wrongfully  refused  to  follow  him  to  such 
state,  and  who  has  voluntarily  come  into 
the  state  of  his  wife's  residence,  may  be 
prosecuted  in  the  latter  state  for  neglect- 
ing and  refusing  to  provide  for  the  sup- 
port and  maintenance  of  his  wife.  State 
V.  Gillmore,  47:  217,  129  Pac.  1123,  88  Kan. 
835.  (Annotated) 

31.  The  mere  fact  that  some  time  after 
a  father  was  brought  into  a  state  in 
custody  of  an  officer,  his  child  was  actualr 
ly  in  destitute  circumstances,  would  not  of 
itself  constitute  a  crime,  or  vest  the 
courts  of  the  state  with  jurisdiction  to  try 
him,  where  the  father  was  without  fault  as 
to  the  child's  coming  into  the  state.  Re 
Fowles,  47:  227,  131  Pac.  598,  89  Kan.  430. 

32.  A  father  who  permitted  the  mother 
to  remove  his  child  to  another  state  under 
such  circumstances  that  he  was  obligated 
for  the  support  of  the  child,  and  with 
knowledge  or  reasonable  means  of  knowl- 
edge that  the  child  was  destitute  and  like- 
ly to  become  a  public  burden  in  the  latter 
state,  is  punishable  under  the  laws  of  the 
latter  state.  Re  Fowles,  47:  227,  131  Pac. 
598,  89  Kan.  430. 

Dieest  1-52  L.R.A.(N.S.) 


Committed  in  more  than  one  state. 

33.  A  continuing  crime  is  a  continuous 
unlawful  act  or  series  of  acts  set  on  foot 
by  a  single  impulse  and  operated  by  an  un- 
intermittent  force,  however  long  it  may  oc 
cupy;  and  whore  such  act  or  series  of  acts 
run  through  several  jurisdictions,  the  of- 
fense is  committed  and  cognizable  in  each, 
although  complete  in  the  jurisdiction  where 
first  committed.  Armoiir  Packing  Co.  v. 
United  States,  14:  400,  153  Fed.  1,  82  C.  C. 
A.  135. 

34.  The  offense  of  giving  or  receiving 
a  rebate  or  concession,  whereby  property  in 
interstate  or  foreign  commerce  is  transport- 
ed at  a  less  rate  than  that  legally  filed  and 
published,  in  violation  of  the  Elkins  act 
(act  February  19,  1903,  chap.  708,  32  Stat, 
at  L.  847;  U.  S.  Comp.  Stat.  Supp.  1905,  p. 
599),  is  a  continuous  crime  judicable  in  any 
court  of  the  United  States  having  jurisdic- 
tion of  crimes,  through  whose  district  the 
transiwrtation  is  conducted.  Armour  Pack- 
ing Co.  V.  United  States,  14:  400,  153  Fed. 
1,  82  C.  C.  A.  135. 

3.  Real  property. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Venue  of  action,  see  Venue,  5-9. 

In  other  country. 

35.  A  court  has  no  jurisdiction  to  parti- 
tion land  located  in  a  foreign  country.  Holt 
V.  Guerguin,  50:  1136,  163  S.  W.  10,  —  Tex. 

36.  A  court  has  no  jurisdiction  to  annul 
a  deed  of  land  located  in  a  foreign  country 
although  it  was  executed  within  its  juris- 
diction and  the  parties  in  interest  are  all 
before  it.  Holt  v.  (lucrguin,  50:  1136,  163 
S.  W.  10,  —  Tex.  — . 

b.  In  other  state. 

(See  also   same   heading  in  Digest   L.R.A. 

1-10.) 

Power  to  authorize  guardian  of  incompetent 
to  consent  to  conveyance  of  real  estate 
in  another  state,  see  Incompetent  Per- 
sons, 40. 

37.  The  courts  of  the  state  in  which  an 
explosion  occurs  have  jurisdiction  of  an  ac- 
tion brought  to  recover  for  injury  done  to 
a  building  located  cross  the  line  in  another 
state.  Smith  v.  Southern  R.  Co,  26:  927, 
123  S.  W.  678.  136  Ky.  162.         (Annotated) 

38i  A  court  cannot,  in  a  suit  to  enforce  a 
fire  insurance  policy  on  property  in  another 
state,  which  was  assigned  to  plaintiff  in 
consideration  of  his  releasing  a  lien  given 
him  by  the  laws  of  the  state  where  the 
property  was  located,  adjudicate  the  inva- 
lidity of  the  release  of  the  lien  and  reinstate 
it  for  the  benefit  of  the  insurer,  although  it 
had  jurisdiction  of  the  person  of  the  prop*  " 

1 


COURTS,  1.  b,  4,  c,  1. 


TSt 


erty  owner,  if  it  does  not  attempt  to  effect 
the  reinstatement  through  him.  Burton- 
Lingo  Co.  V.  Patton,  27:  420,  107  Pac.  679, 
15  N.  M.  304.  (Annotated) 

39.  Equity  has  no  jurisdiction  to  re- 
strain acts  of  trespass  on  lajids  in  another 
state  where  the  principal  fact  involved  and 
upon  which  the  right  to  exercise  the  re- 
straint depends  is  that  of  title  to  the  land, 
even  though  the  necessary  parties  are  prop- 
erly before  it.  Columbia  Nat.  Sand  Dredg- 
ing Co.  V.  Morton,  7:  114,  28  App.  D.  C. 
288.  (Annotated) 
Injury  to. 

40.  The  courts  of  one  state  have  no 
jurisdiction  of  an  action  to  recover  damages 
for  injury  to  and  destruction  of  fences,  tim- 
ber, and  trees  on  land  in  another  state,  due 
to  the  negligent  setting  out  of  fire.  Bris- 
bane V.  Pennsylvania  R.  Co.  44:  274,  98  N. 
E.  752,  205  N.  Y.  431. 

41.  An  action  to  recover  the  proceeds  of 
timber  wrongfully  severed  from  real  estate 
is  transitory  and  may  be  brought  in  the 
courts  of  a  state  other  than  that  where  tiie 
land  is  located.  Brady  v.  Brady,  44:  279, 
77  S.  E.  235,  161  N.  C.  324. 

4.  Foreign  corporations. 

(See   also   same  heading   in  Digest   L.R.A. 
l-tO.) 

42.  A  foreign  corporation  cannot  com- 
plain if  the  court  exercises  a  jurisdiction 
to  which  it  has  submitted  itself.  Fleming 
v.  Warrior  Copper  Co.  51:  99,  136  Pac.  273, 
15  Ariz.  1. 

43.  A  court  of  equity  has  no  jurisdiction 
to  regulate  the  management  of  the  internal 
affairs  of  a  foreign  corporation,  which  is 
not  a  party  to  the  suit,  through  the  medium 
of  an  injunction  against  the  members  of 
the  board  of  directors  individually,  who  are 
parties.  Jackson  v.  Hooper  (N.  J.  Err.  & 
App.)  27:  658,  75  Atl.  568,  76  N.  J.  Eq.  592. 
Against  corporation  generally. 
Venue  of  action,  see  Venue,  12. 

44.  A  corporation  cannot  be  said  to  be 
doing  business  within  a  state  from  the  mere 
fact  that  it  sells  goods  there  through  the 
efforts  of  traveling  salesmen,  so  as  to  bring 
it  within  the  jurisdiction  of  the  state 
courts.  Saxony  Mills  v.  Wagner  &  Co.  23: 
834,  47  So.  899,  94  Miss.  233.        (Annotated) 

45.  The  courts  of  the  state  within  which 
is  situated  property  alleged  to  have  been 
fraudulently  transferred  by  a  domestic  to 
a  foreign  corporation  have  jurisdiction  of  a 
suit  to  set  aside  the  transfer.  Fleming  v. 
Warrior  Copper  Co.  51 :  99,  136  Pac.  273, 
15    Ariz.    1. 

46.  Courts  of  one  state  have  no  juris- 
diction of  a  suit  by  a  stockholder  of  a 
foreign  corporation  which  does  not  transact 
its  business  within  that  state,  against  its 
directors,  because  of  their  failure  to  en- 
force contracts  in  its  favor  and  to  protect 
its  property  since  those  are  matters  of  in- 
ternal management.  Kelly  v.  Thomas,  51: 
122,  83  Atl.  307,  234  Pa.  419. 

Digest  1-52  L.R.A.(N.S.) 


47.  Compelli»g  a  corporation  to  trans- 
fer stock  on  its  books  into  the  name  of  a 
purchaser  is  not  such  an  interference  with 
its  internal  affairs  that  a  court  of  a  state 
other  than  that  of  its  creation  will  not  de- 
cree it.  Westminster  Nat.  Bank  v.  New 
England  Electrical  Works,  3:  551,  62  Atl. 
971,  73  N.  H.  465.  (Annotated) 

c.  Relation    to    other    departments    0I 
government. 

1.  In  general;  political  questions. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Conferring  on  appellate  court  jurisdiction 
of  appeal  from  railroad  commission,  see 
Appeal  and  Errob,  71. 

Review  by,  of  orders  of  public  service  com- 
mission, see  Carriers,  1086;  Constitu- 
tional Law,  616,  619;  Jury,  15;  Pub- 
lic Service  Commission,  10-19. 

Conferring  upon,  jurisdiction  over  questions 
of  governmental  or  administrative  pol- 
icy, see  Constitutional  Law,  125. 

Power  of,  to  set  aside  award  by  commis- 
sioners in  condemnation  proceedings,  see 
Eminent  Domain,  166,  167. 

Review  by  courts,  of  discretion  of  postmas- 
ter general,  see  Postoffice,  2. 

48.  The  determination  of  where  the  seat 
of  government  is,  is  a  judicial  question. 
State  ex  rel.  West  v.  Huston,  34:  380,  113 
Pac.  190,  27  Okla.  606. 

49.  So  long  as  a  public  governing  body 
acts  within  the  limits  of  its  legal  powers 
and  jurisdiction,  the  exercise  of  its  judg- 
ment and  discretion  is  not  subject  to  review 
or  control  by  the  courts  at  the  instance  of 
citizens,  taxpayers,  or  other  interested 
persons,  in  the  absence  of  a  statute  author- 
izing such  review  or  control.  Spedden  v. 
Board  of  Education,  52:  163,  81  S.  E.  724, 
—  W.  V-a.  — . 

50.  The  decision  of  the  city  clerk  under 
§  36,  art.  3,  chap.  14a,  Neb.  Comp.  Stat. 
1911,  relating  to  the  recall  of  municipal 
officers  in  cities  which  have  adopted  the 
commission  form  of  government,  and  re- 
quiring the  city  clerk  to  ascertain  and  de- 
clare whether  the  requisite  number  of  quali- 
fied signers  had  signed  a  petition  for  a 
recall  election,  is  conclusive,  and  in  the 
absence  of  fraud  or  mistake  not  subject  to 
review.  State  ex  rel.  Topping  v.  Houston, 
50:  227,  143  N.  W.  796,  94  Neb.  445. 

51.  Where  the  state  board  of  dental 
examiners,  acting  within  its  jurisdiction, 
revokes  the  license  of  a  dentist  for  alleged 
misconduct,  and  an  action  is  brought  to 
enjoin  the  enforcement  of  the  order  on  the 
ground  that  it  was  fraudulently  made,  a 
finding  by  the  court  that  the  members  of 
the  board  acted  honestly  and  impartially, 
and  not  arbitrarily, '  compels  a  judgment 
sustaining  their  decision,  notwithstanding 
a  further  finding  that  their  action  was  op- 
pressive. Richardson  v.  Simpson,  43:  gn, 
129  Pac.  1128,  88  Kan.  684. 


m 


COURTS,  I.  c,  1. 


62.  A  board  appointed  tp  hear  and  de- 
termine any  complaint  niade  against  any 
person  holding  a  physician's  license,  and 
revoke  such  license  for  specified  causes,  is, 
while  BO  acting,  not  a  judicial  tribunal, 
nor  governed  by  the  technical  rules  applied 
to  law  courts;  and  its  findings  are,  in  the 
absence  of  fraud,  corruption,  or  oppression, 
conclusive  upon  the  court.  Meffert  v. 
Packer,  i:  8ii,  72  Pac.  247,  66  Kan.  710, 
affirmed  in  25  Sup.  Gt.  Rep.  790,  195  U.  S. 
625,  49  L.  ed.  350. 
Executive  department. 
Mandamus  to  governor,  see  Mandamus,  31- 
36. 

53.  All  judicial  power  is  conferred  upon 
the  courts  even  though  the  exercise  there- 
of may  aflfect  the  executive  of  a  state. 
Ekern  v.  McGovern,  46;  796,  142  N.  W.  595, 
154  Wis.  157. 

54.  The  courts  of  a  state  have  no  power, 
in  the  absence  of  express  constitutional 
provisions,  to  control  the  action  of  the 
governor,  even  in  ministerial  acts.  State  ex 
rel.  West  v.  Huston,  34:  380,  113  Pac.  lUO, 
27   Okla.    606. 

55.  Whenever  the  action  of  the  governor 
of  a  state  in  any  matter  is  authorized  by 
law,  and  comes  before  the  court  for  review, 
it  is  its  duty  to  sustain  the  governor.  Ex 
parte  Williams,  51:668,  136  Pac.  597,  — 
Okla.  Grim.  Rep.  — . 

56.  As  to  mere  error  of  judgment  on  the 

fiart  of  a  governor  in  the  exercise  of  his 
awful  authority,  his  acts  are  not  review- 
able by  the  courts.  Ekern  v.  McGovern, 
46:  796,  142  N.  W.  595,  154  Wis.  157. 

57.  On  grounds  of  public  policy  the 
court  will  not  act  coercively  as  to  the  gov- 
ernor except  in  case  of  extreme  urgency. 
Ekern  v.  McGovern,  46:  796,  142  N.  W.  595, 
154  Wis.  157. 

58.  The  public  policy  which  protects  the 
governor  as  a  co-ordinate  department  of 
the  government  from  being  interfered  with 
by  judicial  mandate,  except  in  dire  emer- 
gency, does  not  apply  with  full  force  to  sub- 
ordinates, acting  by  his  authority.  Ekern 
V.  McGovern,  46:  796,  142  N.  W.  595,  154 
Wis.  157. 

59.  The  acts  of  the  governor  in  exercising 
his  constitutional  power  to  suppress  in- 
surrection cannot  be  interfered  with  by  the 
courts  so  long  as  he  does  not  exceed  the 
power  conferred  upon  him.  Re  Moyer,  12: 
979,  85  Pac.  190,  35  Colo.  159. 

60.  The  declaration  of  a  state  of  in- 
surgency or  war  by  the  governor  of  a  state 
is  conchisive  upon  the  court.  Ex  parte 
Jones,  45:  103c,  77  S.  E.  1029,  71   W.  Va. 

61.  It  is  within  the  exclusive  province 
of  the  execiitive  and  legislative  depart- 
ments of  the  government  to  say  whether 
a  state  of  war  exists,  and  neither  their 
declaration  thereof,  nor  executive  acts  un- 
der the  same,  are  reviewable  by  the  coiwts 
while  the  military  .occupation  continues. 
State  ex  rel.  Mavs  v.  Brown,  45:  996,  77 
S.  E.  2r43,  71  W.  Va.  519. 

62.  The  count  lias  no  power  under  a 
Constitution  dividing  the  government  into 
d^artments,  to  review  bv  direct  proceed- 
IHgest  1-52  L.R.A.(N.S.i 


ingB  the  action  ef  the  governor  in  removing 
a  mayor  for  cause  under  authority  con- 
ferred by  statute,  altliough  the  proceeding 
for  removal  is  quasi  judicial.  Germaine  v. 
Ferris,  46:  857,  142  N.  W.  738,  176  Mich.  585. 

63.  While  the  power  of  removal  of  an 
officer  for  cause  established  by  satisfactory 
proof  is  administrative  in  cluuactcr,  as  dis- 
tinguished from  that  judicial  power  lodged 
by  the  constitution  only  in  courts,  it  in- 
cludes that  species  of  judicial  power  denom- 
inated quasi  judicial  and,  as  to  tbat 
element,  the  result  of  the  exercise  of  the 
power  is  reviewable  by  the  court  as  to  all 
matters  of  jurisdiction.  Ekern  v.  McGov- 
ern, 46:  796,  142  N.  W.  505,  154  Wis.  157. 

64.  Proceedings  for  the  removal  of  a 
public  officer  from  his  office  are  of  a  ju- 
dicial character,  so  that,  although  the  pow- 
er of  removal  is  conferi-ed  by  statute  upon 
the  governor,  his  action  is  subject  to  review 
by  the  courts.  State  ex  rel.  Kinsella  v. 
Eberhart,  39:  788,  133  N.  W.  857,  116  Minn. 
ai3.  (Annotated) 

65.  The  power  to  appoint  to  a  public 
office  is  not  the  exercise  of  a  judicial  func- 
tion, but  is  executive  or  administrative  in 
its  nature.  State  ex  rel.  Thompson  v.  Ne- 
bie,  19:  578,  117  N.  W.  723,  82  Neb.  267. 

66.  Requiring  the  judges  of  the  district 
court  to  appoint  park  commissioners,  whose 
duties  are  wholly  administrative  and  ex- 
ecutive, and  over  whom  the  judges  are  given 
no  supervision  or  control,  the  power  of  su- 
pervision being  expressly  and  exclusively 
delegated  to  the  mayor  and  city  council,  vio- 
lates the  provision  of  the  Constitution  di- 
viding the  government  into  three  depart- 
ments, and  prohibiting  persons  of  one  de- 
partment from  exercising  powers  properly 
belonging  to  either  of  the  others.  State  ex 
rel.  Thompson  v.  Neble,  19:  578,  117  N.  W. 
723,  82  Neb.  267.  (Annotated) 

67.  Requiring  a  police  judge  to  notify 
the  county  attorney  of  violations  of  the  pro- 
hibitory liquor  law  that  come  to  his  notice, 
and  to  furnish  him  with  the  names  of  the 
witnesses  by  whom  such  violations  may  be 

firoved,  under  penalty  of  a  fine  and  fore- 
eiture  of  his  office,  does  not  violate  the  con- 
stitutional provision  as  to  the  separation 
of  the  departments  of  government,  since  the 
police  judge,  although  exercising  judicial 
functions,  is  not  a  repository  of  judicial 
power,  within  the  meaning  of  the  constitu- 
tional provision  vesting  the  judicial  power 
in  a  supreme  court,  district  court,  etc.,  and 
"such  other  courts,  inferior  to  the  supreme 
court,  as  may  be  provided  by  law,"  to  wtiich 
courts  alone  the  constitutional  doctrine  of 
the  separation  of  powers  applies.  State  v. 
Keener,   19:615,  97  Pac.   860,  78  Kan.   649. 

(Annotated) 

68.  A  court  of  competent  jurisdiction 
has  authority  to  enjoin  the  ministerial  offi- 
cers of  a  state,  other  than  tlie  governor, 
from  attempting  to  remove  their  offices  and 
public  records,  books,  and  papers  from  the 
seat  of  government  to  another  citj^,  and 
from  misapplying  or  disbursing  puljlic  funds 
in  furtherance  of  su(^h  scheme.  State  ex 
rel.  West  v.  Huston,  ^:  380,  113  Pac.  190, 
27  Okla.  606. 


CCmRTS,  I.  c,  2. 


753 


69.  The  court  will  not  interfere  with 
the  exercise  of  statutory  discretion  by  the 
secretary  of  state  as  to  the  asseesinent 
necessary  to  make  good  an  impfyirment  of 
the  capital  of  a  bank,  unless  a  clear  abuse 
is  shown.  Corbin  Bkg.  Co.  v.  Mitchell, 
31:  446,  132  S.  W.  426,  141  Ky.  172. 

70.  The  judicial  department  has  no  juris- 
diction to  interfere  with  the  performance 
of  functions  of  a  governmental  nature  of 
an  executive  or  administrative  board  ap- 
pointed by  the  legislature,  in  tlie  first  in- 
stance and  in  advance  of  action  by  it.  State 
Railroad  C!ommisaion  v.  People  ex  rel.  Den- 
ver &  R.  G.  R.  Co.  22:  810,  98  Pac.  7.  44 
Colo.  345. 

School  authorities. 

71.  The  supervision  of  the  eo«rt«  over 
school  authorities  in  matters  in  which  they 
are  acting  beyo^td  the  scope  of  their  au- 
thority, or  in  vfolation  of  law,  is  not  de- 
stroyed by  a  statutory  provision  that,  ifi  all 
controversies  arimng  under  the  »cliool  law, 
the  advice  of  the  county  superintendent  shall 
be  Bouglit,  from  whose  decisions  an  appeal 
may  be  taken  to  the  state  board  of  educa- 
tion, the  decision  of  which  shall  be  final. 
Hobbs  v.  Germany,  22:  983,  49  So.  516,  94 
Miss.  469. 

Hiprhw-Tv  authorities. 

72.  The  courts  will  not,  except  in  a  rare 
ease  and  one  of  manifest  abuse  of  power, 
interfere  with  a  decision  of  a  board  of  su- 
pervisors, which  has  constitutional  and  stat- 
utory jurisdiction  over  highways,  tliat  a 
certain  use  of  public  roads  is  unlawful. 
Covincton  County  v.  Collins,  14:  1087,  45  So. 
854,  92  Miss.  330. 

Beard  of  health. 
See  also  infra,  97. 

73.  The  interpretation  given  by  a  state 
board  of  health  to  a  rule  or  regulation 
adopted  by  it  will  be  followed  by  the  court, 
unless  it  appears  to  be  clearly  unreasonable 
and  arbitrary.  Thomas  v.  Stat*  Bd.  of 
Health,  49:  150,  79  S.  E.  725,  72  W.  Va. 
776. 

74.  The  power  conferred  upon  the  state 
board  of  health  to  revoke  a  physician's 
license  for  cause  is  an  administrative,  and 
not  a  judicial,  function;  and  the  limit  of 
judicial  interference  in  such  cases  is  to 
protect  the  accused  in  his  right  to  a  hear- 
ing upon  specifi«  charges,  after  reasonable 
notice  of  the  time  and  place  of  hearing,  and 
against  a  conviction  unless  upon  competent 
evidence.  Munk  v.  Frink,  17:  439,  116  N. 
W.  525,  81  Neb.  631. 

75.  Statutory  permission  to  the  eourt  to 
enforce  an  order  of  the  state  board  of  health 
forbidding  use  of  a  polluted  water  supply 
does  not  make  the  order  conclusive  so  as  to 
deprive  persons  affected  thereby  of  a  right 
to  a  hearing  before  the  court.  State  Bd. 
of  Health  v.  St.  Johnsbury,  23:  766;  7^  Atl. 
581,  82  Vt.  270. 

Board  of  egnalization. 

Statute  providing  for  appeal  by  taxpayer 
from  decision  of  board  of  equnlization, 
see  CoNsnirrriowAL  Law,  127. 

76.  The  courts  are  not  deprived  of  pow- 
er to  interfere  with  an  arbitrary  inequality 
Digest  1-52  I*.R.A.(N.S.) 


in    property    values    throughout    the    state, 
and   an  undervaluation   of  a  portion   of    it, 
effected  by  the  state  board  of  equalization 
in  violation  of  the  provisions  of  the  statute, 
on  the  theory  that  the  act  of  the  board  is 
an    exercise    of    discretion    and    beyond    the 
control  of  the  courts.     Huidekoper  v.  Had- 
ley,  40:  505,  177  Fed.  1,  100  a  C.  A.  395. 
Political  questions. 
Power  of  equity  as  to,  see  Equity,  4. 
Injunction   to   protect   political   rights,   see 
iKJUNCnON,  I.  h. 

77.  Whether  or  not  a  state  has  a  repub- 
lican form  of  government  is  a  political,  and 
not  a  judicial,  question.  State  ex  rel. 
Wagner  v.  Summers,  50:  206,  144  N.  W. 
730,  —  S.  D.  — . 

78.  The  power  granted  to  electors  of  a 
city  to  remove  certain  public  officers  is 
political  in  its  nature,  and  is  not  the  ex- 
ercise of  any  judicial  function.  State  ex 
rel.  Topping  v,  Houston,  50:  227,  143  N.  W. 
796,  94  Neb.  445. 

79.  Executive  recognition  of  the  obliga- 
tion of  the  United  States  to  surrender  its 
own  citizens  under  the  extradition  treaty 
with  Italy  of  1868,  and  the  supplemental 
treaty  of  1884,  notwithstanding  the  refusal 
of  the  Italian  government  to  surrender  fu- 
gitives of  Italian  nationality  committing 
crimes  in  the  United  States,  is  a  wai\'er  of 
the  breach,  if  any  and  leaves  the  treaty  in 
force  as  the  supreme  law  of  the  land,  which 
must  be  recognized  by  the  courts.  Charlton 
v.  KellT,  46:  397,  33  Sup.  Ct.  Rep.  945,  229 
U.  S.  447,  57  L.  ed.  1274. 

80.  Tlie  court  is  not,  in  enjoining  the 
consvimmation  of  conspiracy  to  carry  an 
election  by  fraud,  exercising  a  political, 
rather  than  a  judicial,  function.  People  ex 
rel.  Miller  v.  Tool,  6:  822,  86  Pac.  224,  35 
Colo.  225. 

2.     Legislative     department;     statutes. 

a.  In  general. 

(See   also   sa'me   heading   in   Digest   L.R.A 
1-70.) 

« 

Delegation  of  legislative  power  to  judiciary, 
see  Constitutional  Law,  I.  d,  3. 

Delegation  of  judicial  power  by  legislature, 
see  Constitutional  Law,  I.  d,  5. 

Usurpation  of  power  by  courts,  see  Consti- 
tutional Law,  I.  e. 

Encroachment  on  judicial  power,  see  Consti- 
tutional Law,  I.  6,  2. 

As    to   validity    of    statutes    generally,    see 
Statutes,  I.  c. 

81.  It  is  a  judicial  question  whether  the 
common  law  invoked  in  a  judicial  proceed- 
ing has  been  modified  by  any  of  the  means 
pointed  out  in  a  statute  governing  the  force 
of  the  common  law,  and  consequently  to 
what  extent  it  remains  in  force.  ,  Cooper  v. 
Seaverns,  25:  517,  105  Pac.  509,  81  Kan.  207. 

82.  The  court  will  not  exajnine  the  legis- 
lative journals  Gt  other  records  to  deter- 
mirife  whether  or  not  a  statute  properly  au- 

48 


764 


COURTS,  I.  c,  2. 


thenticated  and  duly  enrolled  and  deposited 
by  the  secretary  of  state  received  tlie 
requisite  number  of  votes,  or  was  subject 
to  any  irregularity  which  would  invalidate 
it.  Atlantic  Coast  Line  R.  Co.  v.  State, 
32:  20,  69  S.  E.  725,  135  Ga.  545. 

83.  A  court  has  no  discretion  as  to  the 
enforcement  of  a  law  if  it  is  constitutional. 
State  ex  rel.  Weinberger  v.  Miller,  44:  712, 
9!)  X.  E.  1078,  87  Ohio  St.  12. 

84.  While  the  Executive,  Legislative 
and  Judicial  branches  of  government  are, 
within  their  respective  spheres,  supreme,  it 
is  for  the  court  to  determine  whether  the 
boundaries  of  a  particular  field  have  been 
overstepped,  and,  if  so,  to  nullify  the  trans- 
gression. State  ex  rel.  Mueller  v.  Thomp- 
son, 43:  339,  137  N.  W.  20,  149  Wis.  488. 

85.  When  a  law  is  clearly  in  conllict 
with  the  Constitution  under  authority  01 
which  it  was  enacted,  it  is  the  duty  of  the 
court  to  sustain  the  paramount  law,  and 
refuse  to  enforce  any  and  all  legislation 
in  contravention  thereof;  but  unless  it  is 
thus  clearly  in  conflict,  the  act  of  the  legis- 
lature should  be  sustained.  State  ex  rel. 
Weinberger  v.  Miller,  44:  712,  99  N.  E. 
1078,  87  Ohio  St.  12. 

86.  The  court  may  determine  the  question 
of  the  constitutionality  of  a  statute,  al- 
though it  is  not  absolutely  necessary  to 
the  disposition  of  the  cause,  if  it  is  in- 
volved in  the  suit,  and  the  settlement  of 
the  question  is  one  of  public  importance. 
Borgnis  v.  Falk  Co.  37:489,  133  N.  W,  209. 
147  Wis.  327. 

87.  A  court,  upon  its  jurisdiction  being 
properly  invoked  for  the  purpose,  is  in  duty 
bound  to  test  a  legislative  enactment  by  all 
constitutional  limitations  bearing  thereon, 
and  condemn  it  if  it  be  found  illegitimate, 
and  thus  uphold  the  Constitution  as  supe- 
rior to  legislative  will.  Bonnett  v.  Vallier, 
17:  486,  116  N.  W.  885,  136  Wis.  193. 

88.  Legislative  declaration  as  to  the 
construction  to  be  given  to  a  previous  stat- 
ute is  not  conclusive  on  the  courts.  Straub 
v.  Lvman  Land  &  Invest.  Co.  46:  941,  138 
N.  W.  957,  141  N.  W.  979,  30  S.  D.  310. 

89.  The  courts  can  give  effect,  legally, 
only  to  the  intentions  of  the  law-making 
body,  expressed  in  a  statute  or  necessarily 
implied,  and  may  not  lawfully  assume  a 
secret  intention  on  the  part  of  the  legisla- 
ture, and  interpret  it  into  a  statute  the 
language  of  which  is  plain  and  unambigu- 
ous. United  States  v.  Colorado  &  N.  W.  R. 
Co.   15:  167,  157   Fed.  321,  85   C.  C.  A.  27. 

90.  The  question  of  the  reasonableness  of 
a  constitutional  act  of  the  legislature  can- 
not be  passed  upon  by  the  courts.  State  v. 
Mayo,  26:  502,  75  Atl.  295,  106  Me.  32. 

91.  Ordinarily  the  courts  will  not  sub- 
stitute their  opinions  for  the  judgment  of 
the  legislature  as  to  the  reasonableness  of 
an  aot  fixing  the  rate  of  speed  at  which 
motor  vehicles  maj'  be  lawfully  driven. 
Schultz  v.. State,  33:  403,  130  N.  W.  972,  89 
Neb.  34. 

92.  The  court  will  not  interfere  with  a 
statute  requiring  the  appointment  of  mem- 
bers of  a  commission  from  the  two  domi- 
Digest  1-52  L,.R.A..(N.S.) 


uunt  political  parties,  on  the  theory  that  its 
provisions  are  arbitrary  and  unrea.sonable 
in  requiring  a  political  test  as  a  qualifica- 
tion for  office.  State  ex  rel.  Jones  v.  Sar- 
gent, 27:  719,  124  N.  W.  339,  145  Iowa,  298. 

93.  Where,  upon  a  petition,  filed  under 
the  proviso  of  ]\linn.  <ien.  Laws  1907,  chap. 
188  (Rev.  Laws  Supp.  1909,  §  1286),  for 
the  enlargement  of  a  school  district,  the 
county  board,  in  rearranging  the  districts 
aflfected  by  the  change,  included  in  one  of 
the  districts  land  situated  in  another,  under 
the  belief  that  the  same  already  belonged 
to  the  former,  such  land,  furthermore,  not 
being  mentioned  in  either  the  petition  or 
the  notice  of  hearing,  and  there  being  no 
appearance  at  the  hearing  in  behalf  of  the 
district  to  which  the  land  belonged,  the 
action  of  the  district  court,  on  appeal  from 
the  order  of  the  board,  in  modifying  such 
order  by  omitting  therefrom  the  land  tl)U8 
erroneously  included  therein,  did  not  con- 
stitute an  excess  of  jurisdiction  as  being 
a  usurpation  of  legislative  power  or  other 
wise;  the  action  of  the  board  with  ref- 
erence to  such  land  being  a  mere  nullity. 
Oppegaard  v.  Board  of  County  Comr.s.  43: 
936,  139  N.  W.  949,  120  Minn.  443. 

94.  The  courts  cannot  ingraft  an  excep- 
tion of  losses  caused  by  negligence  of  the 
railroad  company  on  a  general  statute  sub- 
rogating railroad  companies  whose  opera- 
tions destroy  neighboring  property  to  any 
insurance  upon  the  property,  upon  their 
paving  the  loss.  Boston  Ice  Co.  v.  Boston 
&  M.  R.  Co.  45:  835,  86  Atl.  356,  77  N.  H. 
6. 

95.  Whether  rates  which  have  been 
charged  by  an  irrigation  company  for  water 
service  are  unreasonable  is  a  proper  subject 
for  judicial  inquiry ;  and  the  determination 
of  the  question  is  not  a  legislative  act.  Salt 
River  Valley  Canal  Co.  v.  Nelssen,  12:  711, 
85  Pac.  117,  10  Ariz.  9. 

96.  The  action  of  the  board  of  control 
leasing  land  on  which  to  work  state  convicts 
is  not,  even  though  corruption  is  charged, 
subject  to  the  control  of  the  courts,  when  it 
is  in  the  exercise  of  the  discretion  com- 
mitted to  it  by  the  legislature.  State  ex 
rel.  Greaves  v.  Henry,  5:  340,  40  So.  152,  87 
Miss.  125. 

97.  The  power  to  define  and  abate  nui- 
sances dangerous  to  the  public  health,  vest- 
ed in  the  boards  of  health  of  the  different 
parishes  and  municipalities  by  the  Consti- 
tution and  laws  of  the  state  of  Louisiana, 
is  legislative  in  its  nature,  and  the  courts 
have  no  right  to  interfere  with  its  exercise, 
except  in  clear  cases  of  abuse.  Naccari  v. 
Rappelet,  13:  640,  44  So.  13.  119  T^.  272. 
Inquiry  into  \risdoni  of  legislation. 
See  also  infra,  129,  130. 

98.  A  constitutional  statute  cannot  be 
declared  inoperative  because  opposed  to  pub- 
lic policy.  Borgnis  v.  Falk  Co.  37:  489,  133 
X.   W.   209,  147   Wis.   327. 

99.  Courts  are  bound  by  the  express  ione 
of  public  policy  found  in  constitutional  stat- 
utes. McGuire  v.  Chicago,  B.  &  Q.  R.  Co. 
33:  706,  108  N.  W.  902,  131  Iowa,  340. 

100.  The   extent   to   which   electors    of   a 


COURTS,  I.  c,  2. 


755 


municipality  shall  be  permitted  directly  to 
discharge  legislative  functions  in  local  af- 
fairs is  purely  a  question  of  policy,  with 
which  the  courts  have  nothing  to  do.  Ex 
parte  Pfahler,  ii:  1092,  88  Pac.  270,  150 
Cal.  71. 

101.  The  courts  cannot  interfere  with  the 
judgment  of  the  legislature  as  to  how  far 
it  will  exercise  supervision  and  control  of 
minors,  unless  its  enactments  are  mani- 
festly unreasonable.  State  v.  Shorey,  24: 
1121,  86  Pac.  881,  48  Or.  396. 

102.  The  requirement  of  a  full  crew  on 
railroad  trains  for  the  safety  of  travelers 
and  employees  being  within  the  police  power 
of  the  legislature,  the  court  will  not  declare 
it  unconstitutional  because  it  holds  views 
inconsistent  with  the  propriety  of  the  legis- 
lation. Pennsylvania  R.  Co.  v.  Ewing,  49: 
977,  88  Atl.  775,  241  Pa.  581.     (Annotated) 

103.  The  court  will  not  set  aside  an  em- 
ployees' indemnity  act  on  the  ground  that 
it  will  prove  unnecessarily  costly  and  bur- 
densome to  those  whose  interests  will  be 
affected  by  it,  and  will  lead  to  public  and 
private  abuses,  where  it  was  adopted  by  the 
legislature  after  expert  advice  and  careful 
consideration  of  the  objections  urged  against 
it.  State  ex  rel.  Davis-Smith  Co.  v.  Clausen, 
37:  466,  117  Pac.  1101,  65  Wash.  156. 
Determination  or  finding  of  fact. 

104.  A  fact  once  determined  by  the  legis- 
lature and  made  the  basis  of  an  act,  is  not 
thereinafter  open  to  judicial  investigation. 
Woodall  V.  Darst,  44:  83,  77  S.  E.  264,  71 
W.  Va.  350. 

105.  The  legislative  determination  of  the 
necessity  of  a  statute  prohibiting  the  casting 
of  mill  refuse  into  a  stream,  for  the  protec- 
tion of  food  fish,  is  conclusive  upon  the 
courts  upon  demurrer  to  a  petition  seeking 
to  enforce  the  statute  wliich  attempts  to 
■question  its  constitutionality.  State  v.  Has- 
kell. 34:  286,  79  Atl.  852,  84  Vt.  429. 

106.  A  determination  by  proper  legisla- 
tive authority  that  public  interests  require 
■or  justify  the  vacation  of  a  park  way  or 
public  grounds  of  any  description  is  final 
and  conclusive  upon  the  courts,  except  when 
reviewed  in  the  manner  prescribed  by  law, 
and  will  be  presumed  to  have  been  based  up- 
on a  consideration  of  public  interest.  State 
*x  rel.  Townsend  v.  Board  of  Park  Comrs. 
9:  1045,  110  N.  W.  1121,  100  Minn.  150. 

107.  The  question  of  the  necessity  of  clos- 
ing   a    public    alley    is    exclusively    for    the 
legislature.      Henderson    v.    Lexington,    22: 
20,  111  S.  W.  318,  132  Ky.  390. 
Constitntional  amendment. 

108.  In  the  absence  of  some  other  exclu- 
sive method  of  determination  provided  by 
the  Constitution,  whether  an  amendment 
has  been  properly  proposed  and  adopted,  ac- 
cording to  the  requirements  of  the  existing 
Constitution,  and  has  become  a  part  of  the 
fundamental  law  of  the  state,  is  generally 
a  judicial  question.  Hammond  v.  Clark, 
38:  77,  71  S.  E.  479,  136  Ga.  313. 

109.  Where  an  act  of  the  legislature  pro- 
|)osing  an  amendment  to  the  Constitution  of 
the  state  directed  the  governor  to  publish 
-auch  proposition  and  submit  it  for  ratifica- 
Disest  1-52  L.R.A.(N.S.) 


tion  at  the  next  general  election,  the  fact 
that  after  the  election  he  published  a  procla- 
mation declaring  that  the  amendment  had 
been  ratified  was  not  conclusive  on  the 
courts.  Hammond  v.  Clark,  38:  77,  71  S. 
E.  479,  136  Ga.  313. 
/Vppropriation. 

110.  Whether  an  appropriation  is  for  a 
public  or  a  private  purpose  is  a  judicial 
question;  but  if  it  does  not  clearly  appear 
from  the  act  of  appropriation  that  it  is  for 
a  purely  private  purpose,  the  court  cannot 
so  decide.  Woodall  v.  Darst,  44:  83,  77  S. 
E.  264,  71  W.  Va.  350. 

111.  Whether  a  special  act  or  a  general 
law  is  proper,  is  generally  a  question  for 
legislative  determination;  and  the  court 
will  not  hold  void  a  special  act  appropriat- 
ing money  to  ^a  member  of  the  National 
Guard,  as  contravening  §  39,  art.  6,  of  the 
State  Constitution  ( Code  1906,  p:  Ixii ) , 
unless  it  clearly  appears  that  a  general  law 
would  have  accomplished  the  legislative 
purpose  as  well.  Woodall  v.  Darst,  44: 
83,  77  S.  E.  264,  71  W.  Va.  350. 

b.  Police  power. 

(See   also   same   heading   in  Digest   L.B.A. 
1-70.) 

112.  The  courts  may  inquire  whether  an 
act,  the  constitutionality  of  whiclij  is  as- 
sailed, is  a  valid  exercise  of  the  police  pow- 
er and  calculated  to  promote  the  healtii, 
comfort,  safety,  and  welfare  of  societv. 
Halter  v.  State,  7:  1079,  105  N.  W.  298,  74 
Neb.  757. 

113.  It  is  a  judicial  function  to  determine 
the  proper  subjects  for  police  regulations, 
and  a  legislative  function  to  determine 
primarily  the  expediency  of  regulation  and 
the  character  thereof,  subject  to  judicial 
supervision  to  the  extent  of  determining,  in 
cases  as  they  arise,  whether  the  boundaries 
of  reason  have  been  so  clearly  exceeded  as 
to  violate  some  constitutional  proliihition, 
express  or  implied.  State  v.  Redmon,  14; 
229,  114  N.  W.  137,  134  Wis.  89. 

114.  A  legislative  declaration  respecting 
the  character  of  a  law — -as,  that  its  purpose 
is  to  promote  public  health — is  not  abso- 
lutely binding  on  the  courts,  but  it  is  their 
function  to  determine  the  real  intent  of  the 
law,  and  to  give  effect  to  the  Constitution 
by  i^ondemning  the  enactment  if  its  osten- 
sible purpose  is  not  its  real  one.  State  v. 
Redmon,  14:  229,  114  N.  W.  137,  134  Wis.  89. 

115.  While  what  amounts  to  a  reasonable 
interference  with  private  property  under 
the  police  power  is  primarily  a  question  for 
the  legislature,  which  must  determine  all 
matters  of  expediency  in  respect  thereto, 
yet  in  the  ultimate  it  is  a  question  for  the 
courts,  which  must  determine  what  con- 
stitutes a  proper  subject  for  regulation,  and 
how  far  the  interference  may  properly  ex- 
tend. Bonnett  v.  Vallier,  17:486,  116  N. 
W.  885,  136  Wis.  193. 

116.  The  court  has  no  power  to  refuse  to 
apply  to  the  proprietor  of  an  hotel,  a  stat- 
ute making  it  a  penal  offense  to  discharge 


766 


COURTSs  I.  c,  2. 


any  refuse  matter  into  a  running  strcram, 
on  the  theory  that  an  act  of  that  character 
is  a  mere  technical  violation  of  the  statute, 
and  not  embraced  by  it.  People  v.  Hupp, 
41:  792,  123  Pac.  651,  58  Colo.  80. 

c.  Puhlic    purpose;    tax;    eminent    do- 
main. 

(See  also   Same  heading   m  Digest  L.It.A. 

1-10.) 

Taxes. 

County  tax,  see  infra,  149. 

Review  of  tax  generally,  see  Taxes,  III.  d. 

117.  The  courts  cannot  interfere  with  the 
rate  of  taxation  which  is  levied  by  the  leg- 
islature for  the  maintenanee  of  highways. 
State  V.  Wheeler,  5:  11^9,  53  S.  E,  358,  141 
N.  C.  773. 

318.  An  action  will  not  lie  to  recover 
taxes  paid  because  the  assessment  was  too 
high  in  that  proper  credits  were  not  given, , 
where  no  complaint  has  been  made  to  the 
assessing  officers,  since  it  calls  upon  the 
court  to  correct  an  assessment,  which  it 
has  no  jurisdiction  to  do  in  the  first  in- 
stance. First  Nat.  Bank  v.  Hopkinsville, 
je:.685,  108  S.  W.  311,.  128  Ky.  383. 

(Annotated) 

119.  Whether  a  distinction  should  be 
made  between  collateral  and  lineal  descend- 
ants i^  a  matter  of  legislative  discretion, 
and  not  a  jxidicial  question.  State  ex  rel. 
Foot  v.  Bazille,  6:  732,  106  N.  W.  93,  97 
Minn.    11. 

Eminent  domain. 
See  also  infra,  143. 

120.  The  expediency  and  propriety  of  ex- 
tending the  right  of  eminent  domain  to 
electric  power,  heat,  light,  and  traction 
companies,  provided  each  member  of  the 
community  is  given  equal  rights  and  priv- 
ileges in  respect  thereto,  ts  a  legislative 
question,  and  the  courts  are  limited  in 
their  inquiry  to  the  question  whether  the 
service  provided  for  is  a  public  service. 
Pittsburg  Hydro-Electric  Co.  v.  Listen,  40c 
602,  73  S.  E.  86,  70  W.  Va.  83. 

121.  The  legislative  determination  as  to 
what  is  a  public  use  for  tlie  exercise  of  the 
right  of  eminent  domain  is  not  conclusive. 
Cozad  V.  Kanawha  Hardwood  Co.  i:  969,  51 
S.  E.  932,  139  N.  C.  283. 

122.  The  question  of  the  necessity  of  the 
taking  of  a  parcel  of  land  by  right"  of  ^emi- 
nent domain  in  order  to  effect  the  object  of 
the  organization  of  the  petitioner  is  not 
subject  to  review  by  tlie  courts.  Pittsburgh, 
Ft.  W.  &  C.  R.  Co.  V.  Sanitary  District, 
2:  226,  75  N.   E.  892,  218  111.  286. 

123.  The  courts  have  no  power  to  re- 
examine the  question  of  necessity  or 
exigency  of  a  taking  of  private  property  for 
a  public  library  by  a  municipal  corporation 
to  which  the  legislature  has  delegated  the 
authority  to  acquire  such  property,  or  the 
extent  to  which  the  property  shall  be  taken, 
although  the  Constitution  provides,  that 
private  property  shall  not  be  taken  for 
public  use  vmless  the  puljlit^  exigencies  re- 
Digest  1-52  L.R.A.(N.S.) 


quire    it.      Hayford   v.    Bangor,    11:  940,    66 
Atl.   731,   102  Me.   340.  (Annotated) 

124.  Whether  or  not  there  is  a  sufficient 
public  demand  for  electrical  current  to  war- 
rant the  granting  of  tlie  power  of  eminent 
domain  to  a  corporation  to  enable  it  to 
supply  the  demand  is  a  legislative  question. 
Rutland  R.  Light  &  P.  Co.  v.  Clarendon 
Power  Co.  44:  1204,  83  Atl.  332,  86  Vt.  45. 

d.  Offices;  elections. 

(See   also   same   heading   in   Digest   L.R.A. 
1-70.) 

125.  Courts  have  no  inherent  power  to 
interfere  with  the  judgment  of  committees 
and  tribunals  of  establislied  political  par- 
ties with  respect  to  the  filing  of  notifica- 
tions of  candidacy  at  a  primary  election. 
Roussel  V.  Dernier,  41:  557,  57  So.  272,  129 
La.  !)30. 

126.  That  property  interests  are  involved 
in  an  election  because  franchises  are  to  be 
voted  on  does  not  give  inferior  courts  hav- 
ing jurisdiction  of  all  cas^s,  both  at  law 
and  in  equity,  jurisdiction  to  supervise  the 
election.  People  ex  rel.  Graves  v.  District 
Court,  13:  768,  86  Pac.  87,  37  Colo.  443. 

127.  Under  a  Federal  constitutional  pro- 
vision that  each  house  of  Congress  shall  be 
the  judge  of  the  elections,  returns,  and  qual- 
ifications of  its  own  members,  the  question 
whether  or  not  a  state  statute  permitting 
the  electors  of  rich  political  party  to  ex- 
press their  choice  of  a  candidate  for  the 
United  States  Senate  contravenes  a  consti- 
tutional requirement  that  United  States 
Senators  be  elected  by  the  state  legisla- 
tures, cannot  be  raised  by  an  elector  as  a 
judicial  question  for  the  courts  to  deter- 
mine, but  rests  entirely  with  the  United 
States  Senate.  State  ex  rel.  McCue  v. 
Blaisdell,  24:  465,  118  N.  W.  141,  18  N.  D. 
56. 

e.  Regulations     of     business;     license; 
rates. 

(See  aho   same   heading   in  Digest   L.R.A. 

1-10.) 

Municipal  license,   see  infra,   138-140. 

128.  The  courts  will  not  nullify  a  statijte 
authorizing  the  sale  of  intoxicating  liquors, 
on  the  theory  that  it  violates  the  spirit  of 
the  Constitution  or  the  unwritten  Constitu- 
tion. Campbell  V.  Jackman.  27:  288,  118  N. 
W.  755.  140  Iowa,  475. 

129.  Whether  the  public  good  requires 
that  the  sale  of  intoxicating  liquor  as  a 
beverage  shall  be  wholly  or  only  partially 
prohibited  is  a  legislative  question.  StaJ« 
V.  Roberts,  16:  11 15,  69  Atl.  722,  74  N.  H. 
476. 

130.  The  discretion  of  the  legislature  in 
classifying  those  trades  and  occupations 
which  shall  be  prohibited  under  the  Sun- 
day rest  law  will  not  be  interfered  with  by 
the  courfs,  unless  in  so  doing  the  legisla- 
ture has  violated  some  constitutional  pro- 


COURTS,  t  c,  3. 


757 


vision.      State   v.   Dolan,    14:  1259,   92   Pac. 
995,  13  Idaho,  693. 
Regulation   of  rates. 

Rates  established  by  municipality,  see  infra, 
150-152. 

131.  The  case  must  be  a  clear  one  before 
the  courts  should  be  asked  to  interfere  by 
injunction  with  state  legislation  regulating 
gas  rates,  in  advance  of  any  actual  experi- 
ence of  the  practical  result  of  such  rates. 
Willcox  V.  Consolidated  Gas  Co.  48:  1134, 
29  Sup.  Ct.  Rep.  192,  212  U.  S.  19,  53  L.  ed. 
382. 

132.  A  court  of  equity  ought  not  to  inter- 
fere by  injunction  with  state  legislation 
fixing  gas  rates  before  a  fair  trial  has  been 
made  of  continuing  the  business  under  such 
rates,  where  the  rates  complained  of  show 
a  very  narrow  line  of  division  between  pos- 
sible confiscation  and  proper  regulation,  as 
based  upon  the  findings  as  to  the  value  of 
the  property,  and  the  division  depends  upon 
variant  opinions  as  to  value  and  upon  the 
results  in  the  future  of  operating  under 
such  rates.  Wiflcox  v.  Consolidated  Gas 
Co.  48:  1 134,  29  Sup.  Ct.  Rep.  192,  212  U. 
S.  19,  53  L.  ed.  382. 

133.  While  the  fixing  of  rates,  of  the  de- 
termination of  the  facilities  to  be  afforded, 
in  the  first  instance,  is  a  legislative  ques- 
tion, the  determination  of  the  reasonable- 
ness and  lawfulness  of  the  rate  or  otlier 
requirement  is  a  judicial  function.  Seward 
V.  Denver  &  R.  G.  R.  Co.  46:  242,  131  Pac. 
980,  17  N.  M.  557. 

134.  Where  it  reasonably  appears  from  a 
consideration  of  all  the  evidence  that  .ex- 
press rates  fixed  by  statute  are  not  con- 
fiscatory, but  afltord  the  express  company 
at  least  some  measure  of  profit  for  carry- 
ing on  its  business,  the  courts  will  not  in- 
terfere with  the  operation  of  the  Statute, 
but  will  require  the  party  complaining  to 
apply  for  re!ief  to  the  rate-making  power, 
or  the  tribunal  provided  by  the  statute  with 
power  to  increase  such  rates,  if  they  are  al- 
leged to  be  unreasonable.  State  v.  Adama 
Express  Co.  42:  396,  122  N.  W.  691,  85  Neb. 
25. 

.■j'.i".  ■ 

,i3^.  Municipal  and  county  matters. 

a.  In  general. 

(See  also   same   heading   in   Digest   L.R.A. 
1-10.) 

See  also   supra,   50;    Municipal   Corpora- 
tions, 247. 

135.  In  the  absence  of  a  statutory  right 
of  supervision  or  control,  a  court  cannot, 
at  the  instance  of  citizens  and  taxpayers, 
in  any  manner  restrain  or  control  the  gov- 
erning body  of  a  municipal  corporation,  in 
the  exercise  of  powers  and  functions  vested 
in  it  by  law,  whether  the  discretion  and 
power  so  vested  is  legislative,  executive,  or 
administrative.  Charleston  v.  Littlepage, 
51:  353,  80  S.  E.  131,  73  W.  Va.  156. 

136.  The  governing  body  of  a  city  must 
determine  the  fact  whether  one  who  pre- 
Digest  1-52  I..R.A.(N.S.) 


sents  a  bid  for  a  contract,  under  a  statute 
requiring  it  to  be  let  to  the  lowest  respon- 
sible bidder,  is  in  fact  sudi;  and  such  de- 
termination cannot  be  set  aside  by  a  court 
unless  the  action  of  such  tribunal  is  arbi- 
trary, oppressive,  or  fraudulent.  Williams 
v.  Topeku,  38:672,  118.  ^ac.  864,  85  Kan. 
«57.  .fi'ri;.;,;. 

As  to  offices. 

137.  A  mayor's  act  in  appointing  a  ma- 
jority of  the  members  of  a  board  of  com- 
missioners from  the  minority,  rather  than 
the  dominant,  political  party,  will  not  be 
interfered  with  by  the  courts  where  the 
statute  provides  that  as  far  as  practicable 
two  members  of  the  board  shall  be  appoint- 
ed from  the  dominant  political  party,  and 
one  from  the  party  next  in  numerical 
strength,  where  there  is  nothing  to  show 
that  he  abused  his  discretion  or  was  guilty 
of  fraud  or  collusion.  State  ex  rel.  Jones 
V.  Sargent,  27:  719,  124  N.  W.  339,  145  Iowa, 
298, 

As  to  licenses. 

See   also  infra,   146,   147. 

138.  The  discretion  of  municipal  authori- 
tiea  in  fixing  the  amount  oi  a  license  fee 
will  be  disturbed  by  the  courts  only  in  case 
of  manifest  abuse  of  power.  Schmidt  v.  In- 
dianapolis, 14:  787,  80  N.  E.  632,  168  Ind. 
631. 

139.  The  discretion  of  the  municipal  corpo- 
poration  in  exercising  its  taxing  power  up- 
on the  business  of  peddling  within  its  limits 
is  not  beyond  the  power  of  the  courts  to 
review,  so  far  as  it  affects  the  reasonable- 
ness of  the  tax.  Iowa  City  v.  Glassman, 
40:  852,  136  N.  W.  899,  155  Iowa,  671. 

140.  The  courts  cannot  review  the  deci- 
sion of  a  city  council  exercised  pursuant 
to  an  ordinance  enacted  under  charter  au- 
thority, providing  that  it  shall,  if  the  appli- 
cant for  a  liquor  license  is  in  its  opinion  a 
proper  person  to  carry  on  such  business, 
direct  the  issuance  of  a  license,  refusing  to 
grant  a  license  thereunder  on  the  ground 
tliat  the  applicant  is  an  unfit  person  to 
carry  on  such  business,  where  no  provision 
is  made  therefor,  and  it  does  not  appear 
that  the  discretion  thereby  vested  in  the 
council  has  been  abused  or  that  it  acted 
arbitrarily  or  In  an  unlawful  manner,  al- 
though it  is  alleged  that  the  applicant  is  a 
person  of  good  moral  character  and  fit  to 
carry  on  such  business.  Darby  v.  Pence. 
27:  1 194,  107  Pac.  484,  17  Idaho,  697. 

( Annotated ) 
As  to  highw^ays. 
Inquiry    into    reasonableness    of    ordinance, 

see  Municipal  Corporations,   125. 
See  also  supra,  107;  Constitutional  Law, 

596. 

141.  The  courts  cannot  interfere  with  a 
declaration  of  a  municipality  that  it  is 
necessary  that  certain  streets  shall  be 
opened,  unless  it  is  made  to  appear  that 
they  are  not  to  be  for  the  use  of  the  public, 
but  are  for  the  exclusive  advantage  of  an 
individual.  Louisville  &  N.  R.  Co.  v.  Louis- 
ville, 24:  1213,  114  S.  W.  743,  131  Ky.  108. 

142.  The  courts  will  not  inquire  into  the 
motives  of  municipal  authorities  in  closing 


758 


COURTS,  I.  c,  3. 


a  public  alley,  unless  it  is  manifest  that  a 
flagrant  wrong  has  been  perpetrated  upon 
the  public  and  valuable  riglits  have  been 
surrendered  ostensibly  for  the  public  good, 
but  really  for  the  benefit  of  private  individ- 
uals. Henderson  v.  Lexington,  22:  20,  111 
S.  W.  318,  132  Ky.  390. 

143.  The  expediency  or  necessity  of  ex- 
tending a  city  street  across  a  railroad  right 
of  way  is  a  question  to  be  determined  by  the 
city  council,  and  its  determination  is  con- 
clusive, and  not  reviewable  by  the  court  in 
a  proceeding  to  condemn  a  strip  of  land  for 
the  street  across  the  railroad.  Grafton  v. 
St.  Paul  M.  &  M.  R.  Co.  22:  i,  113  N.  W. 
598,    16  N.   D.  313.  (Annotated) 

144.  A  contract  by  a  municipal  corpora- 
tion to  grant  the  use  of  its  streets  for  gas 
mains,  and  relinqutsh  rights  under  for- 
mer contracts,  is  not,  although  in  the  form 
of  an  ordinance,  a  legislative  act  with 
which  the  courts  have  no  power  to  interfere 
if  fraud  appears.  State  ex  rel.  Abel  v. 
Gates,  2:  152,  89  S.  W,  881,  190  Mo.  540. 

( Annotated ) 

145.  The  courts  will  not  interfere  with 
the  exercise  of  discretion  of  a  municipal 
corporation  in  locating  street  car  tracks 
along  the  side,  rather  than  in  the  center,  of 
a  street,  unless  such  exercise  of  discretion 
is  fraudulent  or  manifestly  abusive  or  op- 
pressive. Wagner  v.  Bristol  Belt  Line  R. 
Co.  25:  1278,  62  S.  E.  391,  108  Va.  594. 

146.  A  declaration  of  forfeiture  of  a 
street  railway  privilege  in  a  street  by  the 
council  of  a  town,  effected  by  repeal  of  the 
ordinance  by  which  the  privilege  was  grant- 
ed, pursuant  to  a  reservation  of  power  so 
to  do,  for  cause  and  after  notice,  has  not 
the  force  and  eflfect  of  a  judicial  determina- 
tion of  the  existence  of  cause  for  forfeiture, 
and  does  not  preclude  a  resort  to  the  courts 
by  the  railway  company  for  vindication  of 
its  rights.  Wheeling  &  E.  G.  R.  Co.  v. 
Triadelphia,  4:  321,  52  S.  E.  499,  58  W.  Va. 
487.  (Annotated) 

147.  The  court  will  not  interfere  with 
the  act  of  a  municipal  corporation  in  re- 
voking authority  to  a  railroad  company 
to  lay  an  additional  track  in  a  public 
street,  unless  it  is  arbitrary,  unreasonable, 
capricious  or  whimsical.  Grand  Trunk 
W.  R.  Co.  V.  South  Bend,  36:  850,  89  N.  E. 
885,  91  N.  E.  809,  174  Ind.  203. 

Local  improvements. 

148.  The  decision  of  municipal  authorities 
that  an  improvement  is  local,  the  cost  of 
vrhicb  may  be  met  by  special  assessments, 
is  subject  to  review  by  the  court.  Wauke- 
gan  v!  De  Wolf,  45:  918,  101  N.  E.  532,  258 
111.  374. 

Tax. 

Appeal  to  courts  from  tax  assessments,  see 
..„     Taxes,  199-201. 

* .  149,  A  determination  by  a  board  of 
supervisors  that  a  great  emergency  or  neces- 
sity exists,  so  as  to  justify  the  exercise  of 
charter  authority  to  levy  a  special  tax,  is 
not  conclusive  on  the  courts.  San  Christina 
Invest.  Co.  v.  San  Francisco,  52:676, 
141  Pac.  384.  167  Cal.  762. 
Digest  1-52  I,.R.A.(N,S.) 


Rates. 

150.  A  rate  established  by  a  municipal 
corporation  under  legislative  authority  for 
furnishing  gas  to  its  inhabitants  is  pre- 
sumed to  be  reasonable,  and  will  not  be 
interfered  with  by  the  court  unless  it  is 
shown  to  be  so  low  as  to  operate  as  a  con- 
fiscation of  the  property  of  the  gas  com- 
pany without  due  process  of  law.  Cedar 
Rapids  Gaslight  Co.  v.  Cedar  Rapids,  48: 
1025,  120  N.  W.  966,  144  Iowa,  426. 

151.  The  court  will  not  interfere  with  a 
rate  for  gas  to  be  furnished  by  a  public 
service  corporation  which  allows  a  profit 
of  7  or  8  per  cent  on  the  value  of  the  plant 
over  the  encumbrance.  Cedar  Rapids  Gas- 
light Co.  v.  Cedar  Rapids,  48:  1025,  120  N. 
W.  966,  144  Iowa,  426. 

152.  The  courts  will  not  interfere  with 
rates  fixed  for  telephone  service  whicli  allow 
a  return  of  over  9  per  cent  on  the  corpora- 
tion's own  valuation  of  its  property.  Home 
Teleph,  Co.  v.  Carthage,  48:  1055,  139  S. 
W.   547,   235   Mo,    644. 

b.  Review  of  ordinances. 

(See  also   same   heading  in  Digest   L.R.A. 
1-70.) 

Injunction  against  ordinances,  see  Injunc- 

Tioii,  299,  300,  303,  338-34S, 
Interference  with  enforcement  of  ordinance, 

see  Municipal  Cobpobaxions,  76, 

153.  In  the  absence  of  facts  pleaded, 
showing  a  fixed  and  continuous  policy  of  un- 
just discrimination  on  the^  part  of  the  mu- 
nicipality in  enforcing  an  ordinance,  the 
courts  will  not  enter  upon  a  consideration 
of  that  question  as  afi'ecting  the  riglits  of 
persons  complaining  of  its  enforcement. 
Schmidt  v,  Indianapolis,  14:  787,  80  N,  E. 
632,  168  Ind,  631. 

Inquiry  into  purpose  or  motive. 
See  also  supra,  142. 

154.  Courts  have  a  right  to  determine 
whether  or  not  ordinances  sought  to  be  up- 
held as  police  regulations  were  in  fact 
passed  for  the  purpose  of  raising  revenue. 
Wisconsin  Teleph.  Co.  v.  Milwaukee,  i:  581, 
104  N.  W.  1009,  126  Wis.  1. 

155.  The  courts  will  not,  in  passing  upon 
the  validity  of  a  municipal  ordinance  which 
is  clearly  within  the  charter  power  of  the 
municipality,  consider  allegations  in  a  plead- 
ing that  the  intent  in  passing  the  ordinance 
was  to  discriminate  in  favor  of  domestic 
enterprises  against  those  located  elsewhere, 
but  doing  business  within  the  city.  Schmidt 
V,  Indianapolis,  14:  787,  80  N.  E.  632,  168 
Ind.  631. 

As  to  nuisances. 

156.  The  courts  cannot  declare  invalid 
an  ordinance  prohibiting  the  location  of  a 
hospital  within  a  certain  distance  of  resi- 
dences without  the  consent  of  their  owners, 
because  it  was  passed  upon  their  solicita- 
tion. Shepard  v.  Seattle,  40:  647,  109  Pac. 
1067.  59  Wash.  363. 

157.  The  determination  by  a  municipal 
corporation   that   a   building   infected   with 


COURTS,  I.  d,  1. 


759 


smallpox  is  a  nuisance  which  should  be 
summarily  destroyed  does  not  prevent  the 
owner  from  testing  the  question  of  nuisance 
vel  non  in  an  action  to  hold  the  municipal- 
ity liable  for  its  value.  Sings  v.  Joliet, 
22:  1 128,  86  N.   E.   663,  237   111.   300. 

158.  The  declaration  by  a  municipal  coun- 
cil that  an  exhibition  of  human  anatomy 
in  connection  with  a  place  where  medical 
treatment  is  offered  or  medicine  sold  is  a 
nuisance  is  conclusive  on  the  courts.  Chi- 
cago V.  Shaynin,  45:  23,  101  N.  E.  224,  258 
111.  69. 

159.  Charter  authority  to  a  municipal 
corporation  to  prevent  the  carrying  on  of  a 
business  which  may  be  dangerous  or  detri- 
mental to  public  health,  and  to  declare  and 
abate  naisances,  does  not  deprive  the  courts 
of  power  to  review  its  determination  that 
the  operation  of  a  brickyard  within  certain 
prescribed  limits  within  the  city  is  a  nui- 
sance. Denver  v.  Rogers,  25:247,  104  Pac. 
1042,  46  Colo.  479. 

160.  Where  a  common  council,  without  a 
full  hearing,  declares  a  bowling  alley  to  be 
a  nuisance,  with  the  view  of  having  the  mat- 
ter submitted  to  the  courts  for  adjudica- 
tion, the  action  of  the  council  Avill  be 
deemed  to  be  arbitrary,  and  will  be  set 
aside.  Shreveport  v.  Leiderkrantz  Soc.  40: 
75,  58  So.  578,  130  La.  802. 

161.  The  determination  by  a  munici- 
pality having  power  to  declare  what  shall 
be  a  nuisance,  that  any  rooms  where  bil- 
liard and  pool  tables  are  kept  or  operated 
for  hire  shall  be  deemed  a  public  nuisance, 
is  conclusive  upon  the  courts.  Re  Jones, 
31:  548,  109  Pac.  570,  4  Okla.  Crim.  Rep.  74. 
Minimum  "orage. 

162.  The  court  will  not  pronounce  an 
ordinance  fixing  a  minimum  wage  of  $2.75 
per  day  for  common  labor  on  public  con- 
tracts unreasonable  in  the  absence  of  evi- 
dence showing  it  to  be  so,  although  such 
wage  is  25  per  cent  higher  than  the  pre- 
vailing price  for  such  labor.  Malette  v. 
Spokane,  51 :  686,  137  Pac.  496,  77  Wash. 
205. 

Milk. 

163.  The  method  to  be  adopted  by  the 
health  authorities  to  insure  a  supply  of 
pure  milk,  and  the  standard  by  which  the 
same  shall  be  determined,  is  a  legislative 
question,  and  the  adoption  of  a  particular 
method  cannot  be  reviewed  by  the  courts, 
tinless  so  arbitrary  as  to  be  violative  of  the 
contititutional  rights  of  the  citizens  affect- 
ed. Nelson  v.  Minneapolis,  29:  260,  127  N. 
W.  445,  112  Minn.  16. 

164.  The  courts  will  not  interfere  with 
an  ordinance  requiring  cattle  from  which 
milk  is  to  be  sold  in  the  city  to  be  tested 
with  tuberculin,  on  the  ground  that  the 
scientific  theory  on  which  the  ordinance  is 
based  is  incorrect  or  unsound,  although 
there  are  conflicting  scientific  beliefs  upon 
the  question,  and  the  tiiberculin  test  is  not 
an  infallible  means  of  determining  whether 
or  not  the  cattle  have  tuberculosis,  while 
there  is  a  lack  of  evidence  that  tuberculosis 
of  the  human  lungs  is  caused  by  the  bovine 
type  of  bacillus,  if  milk  from  tubercular 
Digest   1-52  I,.R.A.(X.S.) 


cows    is    shown    to   be    harmful    to    health. 
Adams  v.   Milwaukee,  43:  1066,   129   N.  W. 
518,  144  Wis.  371. 
Lights  at  railroad  crossing. 

165.  A  railroad  company  directed  by  mu- 
nicipal ordinance  to  light  its  street  cross- 
ings has  no  right  to  question  in  the  courts 
the  necessity  of  the  ordinance,  or  the  fair- 
ness, honesty,  or  propriety  of  the  exercise 
of  the  power.  Pittsburg,  C.  C.  &  St.  L. 
R.  Co.  V.  Hartford  City,  20:  461,  82  N.  E. 
787,  170  Ind.  674. 

Prevention  of  fires. 

166.  The  court  will  not  ordinarily  super- 
vise the  action  of  municipal  authorities  in 
establishing  fire  limits.  State  v.  Lauing, 
51:  62,  80  S.  E.  69,  164  N.  C-  492. 

d.  Jurisdiction  over  associations,  etc. ; 
conclusiveness  of  decisions  of  their 
tribunals. 

1.  Associations  generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

H 

Jurisdiction  of  action  by  corporate  stock- 
holders, see  CoBPOEATiONS,  V.  e,  2. 

Effect  of  constitution  or  by-laws  of  insur- 
ance company,  see  Insurance,  1*11- 
114. 

Provision  in  benefit  certi-ficate  making  con- 
clusive decisions  of  associations  as  to 
rights  of  member,  see  Insttbance,  87. 

167.  A  clause  in  a  mutual  benefit  certifi- 
cate, relating  to  appeals,  which  provides 
that  the  decision  'of  the  supreme  court  of 
the  order  sliall  be  final  and  conclusive,  will 
be  construed  as  intending  only  to  mark  the 
distinction  between  the  effect  of  the  decision 
of  the  supreme  court  of  the  order  and  that 
of  its  other  courts,  and  not  to  exclude  the 
jurisdiction  of  tlie  legal  tribunals.  Gilroy 
V.  Supreme  Court  I.  O.  F.  (N.  J.  Err.  & 
App.)   14:  632,  67  Atl.  1037,  75  N.  J.  L.  584. 

168.  A  stipulation  by  which  a  holder  of 
a  benefit  certificate  agrees  to  seek  the  rem- 
edy for  all  his  rights  on  account  of  such 
membership  in  the  tribunals  of  the  order 
does  not  prevent  his  resorting  to  the  courts 
in  the  first  instance  to  enforce  payment 
of  a  benefit  due  under  the  contract.  Kelly 
V.  Trimont  Lodge,  52:  823,  69  S.  E.  764,  154 
N.  C.  97.  (Annotated) 

169.  The  courts  will  not  control  the  dis- 
cretion of  the  officers  of  an  insurance  asso- 
ciation in  refusing  to  reinstate  a  member 
who  has  forfeited  his  rights  by  nonpay- 
ment of  dues,  where  the  contract  provides 
that  any  person  in  such  circumstances  may 
be  reinstated  "in  the  discretion  of  the  of- 
ficers," "upon  his  furnishing  them  satisfac- 
tory evidence  that  he  is  in  good  health;" 
at  least,  where  there  are  facts  bearing  upon 
the  question  of  his  health  which  might  in- 
fluence the  sound  judgment  and  good  con- 
science of  an  officer  to  decide  against  re- 
instatement. Conwav  v.  Minnesota  Mut. 
L.  Ins.  Co.  40:  148,  112  Pac.  1106,  62  Wash. 
49.  (Annotated) 


760 


COURTS,  I.  d,  2. 


170.  The  court  cannot  hold  that  a  mis- 
representation by  an  insured  as  to  his  age 
and  the  amount  of  intoxicants  used  during 

'a  day  is  not  so  material  to  the  risk  as  to 
influence  against  reinstatement  the  sound 
judgment  and  good  conscience  of  officers  of 
the  company  in  whom  is  vested  the  discre- 
tion as  to  his  reinstatement  after  forfeiture 
of  the  policy  for  nonpayment  of  dues,  upon 
his  furnishing  satisfactory  evidence  of 
health.  Conway  v.  Minnesota  Mut.  L.  Ins. 
Co.  40:  148,   112  Pac.   1100,  02  Wash.  49. 

171.  While  a  complaining  member  of  a 
labor  union  should  exhaust  the  remedies 
provided  by  the  laws  of  the  organisation  be- 
fore applying  to  the  courts,  yet  where  those 
laws  provide  no  remedy,  and  the  organiza- 
tion provides  none,  but  meets  the  demands 
therefor  with  futile  correspondence  and 
rexatious  and  unnecessary  delays,  it  be- 
comes a  question  for  the  courts  to  deter- 
mine whether  or  not  the  member  has  done 
all  within  his  organization  that  could  rea- 
sonably be  expected  of  him.  Schneider  v. 
Local  Union  No.  60,  5:  891,  40  So.  700,  116 
La.  270. 

Rejection  of  claim}   dnratien   of  dis- 
ability. 

172.  The  doctrine  that  an  award  of  arbi- 
trators may  oust  the  courts  of  jurisdic- 
tion does  not  apply  to  the  rejection  by  the 
officers  of  a  mutual  benefit  society,  of  a 
claim  on  a  member's  certificate.  Supreme 
Council,  C.  B.  L.  v.  Grove,  36:  913,  96  N.  E. 
159,   —   Ind.   — . 

173.  A  regulation  of  a  railway  relief  as- 
sociation that  the  right  of  a  member  to 
benefits  shall  depend  upon  his  incapacity 
to  earn  a  livelihood  in*  any  employment 
suited  to  his  capacity,  which  fact  shall  be 
conclusively  determined  by  the  advisory 
committee  of  the  association,  one  half  the 
members  of  which  are  chosen  by  the  bene- 
ficiaries, is  valid,  and  a  decision  of  the 
board  cannot  be  reviewed  by  the  courts  in 
the  absence  of  fraud  or  mistake.  Pennsyl- 
vania Co.  V.  Reager,  52:  &41,  154  S.  W.  412, 
152  Ky.  824. 

174.  A  railroad  relief  department  may 
make  the  determination  of  its  own  tribunals 
as  to  the  duration  of  a  disability  for  which 
a  member  is  entitled  to  benefits  conclusive 
in  case  he  resorts  to  such  tribunal,  in  the 
absence  of  fraud  or  undue  influence,  so  as  to 
prevent  the  member  from  subsequently  re- 
sortirig  to  the  courts  for  a  determination 
of  the  question.  Nelson  ▼.  Atlantic  Coast 
Line  R.  Co.  52:  829,  72  S.  E.  998,  157  N. 
C.  194. 

176.  A  determination  by  a  fire  depart- 
ment relief  association,  that  a  member 
thereof  previously  entered  upon  the  pension 
roll  had  fully  recoveri>d  from  his  disability, 
is  not  final  and  eonclusive,  where  the  mem- 
ber had  no  notice,  and  was  not  afforded 
an  opportunity  to  be  heard  upon  the  ques- 
tion. Stevens  v.  Minneapolis  Fire  Depart. 
Relief  Asso.  50:  1018,  145  N.  W.  35,  124 
Minn.  381. 

176.  The  right  of  a  court  to  set  aside  the 
determinafion  of  a  fireman's  relief  associa- 
tion that  one  of  its  members  who  liad  been 
Digest  1-52  L.R.A.(N.S.) 


placed  upon  the  pension  roll  had  recovered 
from  his  disability,  and  was  therefore  no 
longer  entitled  to  receive  the  pension,  is 
not  limited  to  instances  of  manifestly  ar- 
bitrary action  by  the  as.sociation,  where 
the  person  affected  was  given  no  notice  or 
opportunity  to  be  heard  as  required  by  the 
by-laws  of  such  association,  but  in  such 
a  situation  the  court  is  controlled  by  the 
rule  of  preponderance  of  evidence.  Stevens 
V.  Minneapolis  Fire  Depart.  Relief  Asso. 
50:  1018,  145  N.  W.  35,  124  Minn.  381. 
Expnlsi-on. 

177.  One  wrongfully  expelled  from  a  fra- 
ternal benefit  society  is  not  bound  to  ex- 
haust his  remedy  within  the  order  before 
suing  for  damages  for  the  wron".  Inde- 
pendent Order  of  S.  &  D.  of  J.  of  A.  v. 
Wilkes,   5a:  817,   53   So.   493,   98   Miss.    179. 

(Annotated) 

178.  The  courts  cannot  review  the  pro- 
ceedings of  a  benefit  society  leading  to  the 
expulsion  of  a  member,  or  re-examine  the 
merits  of  the  expulsion.  Wilcox  v.  Supreme 
Council,  R.  A.  52:  806,  104  N,  E.  624,  210 
N.  Y.  S70.  (Annotated! 

2.  Religious   societies. 

(Se<i  also   same   heading   in   Digest  L.R.A 
1-10.) 

Jurisdiction  of  equity  to  reinstate  pastor, 

see  Equity,  16. 
Powers  of  ecclesiastical  tribunals,  generally, 

see  Religious  Societies,  IX. 

179.  Where  a  local  church  or  parish  is 
a  member  of  a  general  organization  hav- 
ing general  rules  for  the  government  and 
conduct  of  all  its  adherents,  congregations, 
and  officers,  the  final  orders  and  judgments 
of  the  general  organization  through  its 
governing  authority,  so  far  as  they  relate 
exclueively  to  church  affairs  and  church 
government,  are  binding  on  the  local  asso- 
ciations and  their  members  and  officers,  and 
courts  will  not  ordinarilv  review  such  final 
orders  and  judgments  /or  the  purpose  of 
determining  their  regularity,  or  accordance 
with  the  discipline  and  usages  ol  the  gen- 
eral organization.  Parish  of  the  Immacu- 
late Conception  v.  Murphv,  35:  926,  131  N. 
W.  946,  89  Neb.  524. 

180.  A  civil  court  has  no  jurisdiction  to 
examine  into  the  regularity  and  validity  of 
a  church  tribunal,  and  restrain  its  proceed- 
ings for  nonconformity  with  its  own  laws, 
in  a  matter  concerning  only  spiritual  or 
ecclesiastical  rights.  Ramsev  v.  Hicks, 
30:  665,  91  N.  E.  344,  92  N.  E.164,  174  Ind. 
428. 

181.  A  court  of  chancery  has  no  power, 
upon  ascertaining,  in  a  siiit  between  fac- 
tions of  a  religious  society  to  compel  trans- 
fer of  the  legal  title  of  its  property  frOm 
one  trustee  to  another,  that  the  result  of 
an  election  by  the  society  or  the  choice 
of  the  trustee  is  unsatisfactory  and  doubt- 
ful, to  order  and  conduct  another  election 
for  the  purpo.se  of  settling  the  question  of 
the    choice   of   the    society,   although    it    ia 


COUETS,  I.  d,  2.  :  I 


7G1 


consented  to  by  the  parties  to  the  action. 
Mazaika  v.  Krauczunas,  31:686,  77  Atl. 
1102,   229   Pa.    47.  (Annotated) 

As  to  propertjr  rights. 
See  also  infra,  192. 

182.  A  voluntary  religious  society  which 
constitutes  a  subordinate  part  of  a  religious 
organization  haviitg  established  tribunals 
authorized  to  decide  all  questions  of  faith, 
discipline,  rule,  or  ecclesiastical  government 
is  bound  by  the  decisions  thereof  on  all 
questions  within  their  jui-isdietion;  and 
when  a  right  of  property  asserted  in  a  civil 
court  is  dependent  upon  a  question  decided 
by  the  highest  tribunal  within  the  organi- 
zation, to  which  it  has  been  regularly  and 
properly  carried,  while  acting  within  its 
proper  jurisdiction,  the  civil  courts  will  ac- 
cept that  decision  as  conclusive  and  be  gov- 
erned by  it.  Mack  v.  Kime,  24:  675,  58 
S.  E.  184,  129  Ga.  1. 

183.  Civil  courts,  as  a  general  rule,  where 
property  rights  are  involved,  will  interfer* 
to  protect  the  members  of  an  ecclesiastical 
organization 'who  adhere  to  the  tenete  and 
doctrines  which  the  organization  was  organ- 
ized to  promulgate,  and  to  protect  them  in 
their  right  to  use  the  property,  as  against 
those  members  of  the  organization  who  are 
attempting  to  divert  the  same  to  purposes 
utterly  foreign;  and  the  constituted  author- 
ities of  a  church  will  not,  where  members' 
rights  are  involved,  be  permitted  entirely 
to  abandon  the  purposes  for  which  the 
church  was  organized.  Mack  v.  Kime,  24: 
675,  58  S.  E.  184,  129  Ga.  1. 

184.  When  property  acquired  by  an  ec- 
clesiastical orgaoization  is  devoted,  by  the 
express  terms  of  a  gift,  grant,  or  sale,  to 
support  any  specific  religious  doctrine  or 
belief,  the  civil  courts,  when  necessary  to 
protect  the  trust  to  which  the  property  has 
been  devoted,  will  inquire  into  the  religious 
faith  or  practice  of  the  parties  claiming  its 
use  or  control,  and  will  see  that  it  shall 
not  be  diverted  from  that  trust;  but  if 
property  is  acquired  in  the  ordinary  way, 
by  purchase  or  gift,  for  tlie  use  of  a  re- 
ligious society,  the  civil  courts  will  only 
inquire  as  to  who  constitute  that  society, 
or  its  legitimate  successors,  and  award  to 
them  the  use  of  the  property,  and  will  not, 
in  case  of  a  schism  in  the  organization,  in- 
quire into  the  existing  religious  opinion  of 
those  who  adhere  to  the  acknowledged  or- 
ganization. Mack  V.  Kime,  24:  675,  58  S. 
E.  184,  129  Ga.  1. 

Consblidation. 

185.  The  decisicm  by  the  highest  tribunal 
of  a  religious  society,  to  which  is  committed 
the  supreme  legislative,  judicial,  and  execu- 
tive power  of  the  church,  that  it  ha«  power 
to  enter  into  a  union  with  another  rehgioug 
Bociety,  is  not  subject  to  review  by  the  civil 
courts.  Brown  v.  Clark,  24:  670,  116  S. 
W.  360,  102  Tex.  323.  (Annotated) 

186.  The  decision  by  the  highest  tribunal 
of  a  religious  society,  to  which  is  committed 
the  supreme  legislative,  judicial,  and  execu- 
tive power  of  the  Church,  that  the  fact  that 
another  religious  society  admits,  und^r  cer- 
tain conditions,  negroes  to  participate  in 
Digest  1-52  I<.R.A.(N.S.) 


its  courts  and  public  meetings,  which  is  not 
permitted  by  its  own  constitution,  is  not 
inimical  to  a  union  of  the  two  societies,  is 
not  subject  to  review  by  the  civil  courts. 
Brown  v.  Clark,  24:  670,  116  S.  W.  3(>'0, 
102  Tex.  323. 

187.  The  decision  of  the  highest  tribunal 
of  an  ecclesiastica-1  body,  having  authority 
to  decide  all  controversies  of  doctrine,  that 
a  change  made  by  another  religious  bodj'  in 
its  confession  of  faith  has  removed  all  ob- 
stacles to  the  union  of  the  two  bodies,  is 
binding  on  the  civil  courts.  Brown  v.  Clark, 
24:  670,  116  S.  W.  360,  102  Tex.  323. 

188.  The  decision  of  a  proper  church  tri- 
bunal proceeding  in  manifest  good  faith, 
under  color  of  authority,  that  it  has  juris- 
diction to  form  a  union  with  another 
church,  is  binding  on  the  civil  courts,  al- 
though such  authority  is  not  expressly  con- 
ferred by  the  constitution  of  the  church. 
Ramsey  v.  Hicks,  30:  665,  91  N.  E.  344,  92 
N.  E.   164,  174  Ind.  428. 

189.  The  act  of  a  church  judicatory  which 
has  authority  to  amend  its  Confession  of 
Faith  and  constitution  so  as  to  make  them 
conform  to  those  of  another  ecclesiastical 
society,  in  effecting  a  union  with  such  other 
society  rather  than  a  specific  amendment 
of  the  Confession  and  constitution,  is  one 
of  policy  ©r  expediency  rather  than  of  pow- 
er or  authority,  and  therefore  cannot  be 
questioned  by  the  civil  courts.  Ramsey  v. 
Hicks,  30:  665,  91  N.  E.  344,  92  N.  E.  164, 
174  Ind.  428. 

190.  The  decision  of  the  General  Assem- 
bly of  the  Cumberland  Church,  that  the 
revised  Confession  of  Faith  of  the  Presby- 
terian Church  was  in  substantial  accord 
with  its  own  doctrinal  tenets,  is  binding 
ajid  conclusive  upon  the  membership  of  the 
church  and  upoqi  the  civil  courts.  Ramsey 
V.  Hicks,  30;  665,  91  N.  E.  344,  92  N.  E. 
164,  174  Ind.  428. 

Change  of  constitution  or  doctrine. 

191.  A  civil  court,  in  determining  whether 
there  has  been  an  abandonment  of  tenets 
and  doctrines  in  an  ecclesiastical  organiza- 
tion, will  look  to  the  decisions  of  tbe  con- 
stituted tribunals  thereof  having  jurisdic- 
tion to  decide  differences  as  to  teachings 
and  doctrines,  and  will  never  revise  the 
judgment  of  such  a  tribunal  as  to  a  question 
within  its  jurisdiction,  and  will  interfere 
only  when  it  is  manifest  that  what  the 
church  tribunal  has  adjudicated  is  not  a 
difference  of  opinion  as  to  doctrine  or  teach- 
ing, but  is  an  attempt,  in  the  form  of  such 
adjudication,  utterly  to  abandon  the  pur- 
poses for  which  the  church  was  organized. 
Mack  V.  Kime,  24:  675,  58  S.  E.  184,  120 
Ga.  1.  (Annotated) 
Expulsion;  excommunication. 
Mandamus  to  reinstate  expelled  member,  see 

Mandamus,  12. 

192.  Equity  will  aid  a  member  of  a 
church  expelled  for  the  fraudulent  pur- 
pose of  devoting  the  church  property  to 
purposes  entirely  foreign  to  that  of  the 
church  organization,  to  preserve  the  trust 
property,  notwithstanding  the  rules  of  the 
organization  permit  the  expulsion  of  mem- 


762 


COURTS,  I.  e— II.  a,  1. 


bers  without  formal  trial.  Hendryx  y.  Peo- 
ple's United  Church,  4:  1154,  84  Pac.  1123, 
42    Wash.    336.  (Annotated) 

193.  A  final  judgment  of  a  Roman  Cath- 
olic ecclesiastical  court  excommunicating  a 
priest  from  the  Roman  Catliolic  Church  is 
not  reviewable  by  the  courts  to  determine 
the  regularity  or  accordance  with  the  pro- 
ceeding of  the  discipline  and  usages  of  such 
church  organizations.  St.  Vincent's  Parish 
V.  Murphy,  35:  919,  120  N.  W.  187,  83  Neb. 
630.  ( Annotated ) 

e.  Legislative  power  as  to. 

(See  also  same  heading  in  Digest  L.R.A 
1-70.) 

To  abridge  court's  inherent  power  as  to 
contempt,  see  Contempt,  98. 

Partial  invalidity  of  statute  as  to,  see 
Statutes,  65,  66. 

194.  Constitutional  provisions  establish- 
ing courts  of  justice  are  not  infringed  by 
statutory  provisions  making  the  decision  of 
trustees  of  a  police^  pension  fund  upon  a 
claim  final  and  conclusive.  Board  of  Trus- 
tees v.  McCrory,  21:  583,  116  S.  W.  3-2lJ,  132 
Ky.  89. 

195.  Under  a  constitutional  amendment 
that  no  provision  of  the  Constitution  shall 
be  considered  as  a  limitation  upon  the  au- 
thority of  the  legislature  to  confer  powers 
upon  the  railroad  commission  created  by 
such  amendment,  declaring  that  the  power 
of  the  legislature  to  confer  powers  upon  the 
commission  is  plenary  and  unlimited  by 
any  provision  in  the  Constilmtion,  the  legis- 
lature may  limit  a  review  of  the  decisions 
of  the  commission  to  the  supreme  court, 
thereby  interfering  witii  the  constitutional 
powers  of  the  superior  court,  and  permit  a 
review  by  the  supreme  court  of  constitution- 
al questions,  thereby  enlarging  its  consti- 
tutional powers.  Pacific  Teleph.  &  Teleg. 
Co.  v.  Eshleman,  50:  652,  137  Pac.  1119, 
166  Cal.  640. 

196.  Permitting  the  chancery  court  to  set 
aside  the  verdict  upon  an  issue  directed  by 
it  to  the  law  court  in  a  suit  to  quiet  title 
to  real  estate  does  not  violate  the  constitu- 
tional preservation  to  courts  of  law  and 
equity  of  their  respective  powers  and  juris- 
diction. Brady  v.  Cartaret  Realty  Co.  (N. 
J,  Err.  &  App.)  8:  866,  64  Atl.  1078,  70  N. 
J.  Eq.  748.  (Annotated) 

/.  Power  of  municipality  over. 

(See  same  heading  in  Digest  L.R.A.  1-70.) 

g.  Loss  of  jurisdiction. 
(f\ee   also   same  heading   in  Digest   L.R.A 

i-ra.) 

Loss  6t  jui'ledidtibri  to  impose  criminal  sen- 
tence bv  suspension,  see  Cbimixal  Law, 
28.3-287. 

Loss  of  jurisdiction  by  justice  of  the  peace, 
see  Jcstice  of  the  Peace,  7. 

Digest  1-52  L.R.A.(N.S.) 


197.  Where  the  court  once  legally  ac- 
quires jurisdiction  of  an  unborn  heir  by 
representation  tlirough  living  heirs  of  the 
same  class,  its  subsequent  birth  without 
thereafter  being  made  a  direct  party  to  the 
cause  does  not  devest  the  court  of  jurisdic- 
tion to  decree  against  it,  though  to  do  so  is 
error.  Boal  v.  Wood,  42:  439,  73  S.  E.  978, 
70  W.  Va.  383. 

II.  State  and   territorial  courts. 

a.   Jurisdiction. 

1.  In  general. 

(See  also   same   heading  in  Digest   L.R.A. 

1-70.) 

Jurisdiction  in  particular  kinds  of  actions 
and  proceedings,  see  Accounting;  Ad- 
miralty; Attachment;  Cebtiobabi; 
Cloud  on  Title  ;  Corporations  ;  Credi- 
tors' Bill;  Divorce  and  Separation, 
II.;  Equity,  I.;  Executor^  and  Admin- 
istrators; Fraud  and  Deceit,  VIII. ; 
Fraudulent  Conveyances,  VIII.;  Gar- 
nishment; Guardian  and  Ward,  5,  6; 
Habeas  Corpus;  Incompetent  Per- 
sons; Infants;  Injunction;  Insur- 
ance, VI.   h;    Mandamus;    Mabbiage, 

IV.;  MoBTGAGE,  VI.;  NUISANCES,  II.; 
PaBTNERSHIP;  PROHIBITION,  I.;  RE- 
CEIVERS, I.,  IV.;  Replevin;  Specific 
Performance;  Trespass;  Tboveb; 
Wills,  IV. 

Nature  of  case  brought  before  mayor's  court, 
see  Action  or  Suit,  50. 

Appellate  jurisdiction  of,  see  Appeal  and 
Eebob,   II.  c. 

Jurisdiction  of  action  to  enforce  stockhold- 
ers' liability,  see  Corporations,  358. 

Statute  limiting  review  of  decision  of  rail- 
road commission  to  supreme  court,  see 
Courts,  195. 

Jurisdiction  to  enjoin  filing  of  rates  with 
interstate  commerce  commission,  see 
Intebstatb  Commerce  Commission,  3. 

198.  A  proceeding  in  a  division  of  a  cir- 
cuit court  of  general  jurisdiction  is  none 
the  less  entitled  to  the  presumptions  at- 
tending the  proceedings  of  such  courts  be- 
cause of  the  fact  that  in  a  matter  of  detail 
in  the  administration  of  justice  certain 
criminal  cases  are  assigned  to  it  which  may 
take  up  its  whole  time.  Ex  parte  Clark, 
15:  389,  106  S.  W.  990,  208  Mo.  121. 

199.  A  civil  district  court  has  jurisdic- 
tion of  a  complaint  to  compel  police  au- 
thorities to  destroy  pictures  of  the  plaintiff 
intended  for  the  rogues'  gallery,  and  taken 
after  the  plaintill'  had  been  accused  of  a 
crime  for  which  he  has  never  been  tried, 
since  the  action  relates  to  a  personal  right. 
Schulman  v.  Whitaker,  7:  274,  42  So.  227, 
117  La.  704. 

200.  A  state  court  has  jurisdiction  of  an 
action  for  damages  for  breach  of  contract 
by  a  carrier  to  transport  property  from 
such  state  into  or  through  others,  Avhich  is 
not   founded   on   the   rights   created   by   the 


COURTS,  II.  a,  I. 


763 


Federal  interstate  commerce  act.  St.  Louis 
S.  W.  R.  Co.  V.  Wallace,  22:  379,  118  S.  W. 
412,  90  Ark.  138. 

201.  Under  a  'statute  giving  mayors  the 
jurisdiction  and  powers  of  justices  of  the 
peace,  they  have  authority  to  hear  a  com- 
plaint in  a  bastardy  proceeding,  and  bind 
accused  over  to  the  circuit  court.  Evans  v. 
State  ex  rel.  Freeman,  2:  619,  74  N.  E.  244, 
165  Ind.  369. 

202.  The  general  jurisdiction  of  the  dis- 
trict court  to  grant  injunctions  is  not  ousted 
by  a  constitutional  provision  conferring 
authority  upon  county  courts  to  grant  in- 
junctions when  the  controversy  is  within 
their  limited  jurisdiction.  Ex  parte  Alli- 
son, 3:  622,  90  S.  W.  492,  48  Tex.  Crim.  Rep, 
634. 

203.  Tlie  district  court  is  not  deprived, 
on  the  ground  that  the  case  involves  a  set- 
tlement of  the  accounts  of  an  executor,  of 
jurisdiction  to  decree  performance  of  a 
contract  made  by  a  devisee  to  divide  the 
residue  of  real  property  charged  with  the 
support  of  a  person  for  life  with  an  heir, 
in  case  he  withdrew  objections  to  the  pro- 
bating of  the  will,  although  it  is  necessary 
to  ascertain  incidentally  the  expense  in- 
curred for  support,  and  to  determine  a 
claim  of  the  heir  that  he  is  also  entitled  to 
share  in  the  residue  of  the  personal  prop- 
erty. Grochowski  v.  Grochowski,  13:  484, 
109  N.  W.  742,  77  Neb.  506. 

204.  A  declaration  alleging  the  wilful  re- 
fusal of  a  telegraph  company  to  pay  money 
in  its  hands,  to  which  the  plaintiff  was  en- 
titled, with  full  knowledge  that  the  plaintiff 
would  thereby  be  compelled  to  travel  with- 
out food  for  mare  than  twenty-four  hours, 
states  a  bona  fide  claim  within  the  jurisdic- 
tion of  the  circuit  court,  even  though  the 
money  withheld  be  below  the  jurisdictio"tial 
amount  of  that  court.  Western  U.  Teleg. 
Co.  V.  Wells,  2:  1072,  39  So.  838,  50  Fla.  474. 
flection  contests. 

205.  Okla.  Const,  art.  7,  §§  2,  10,  pro- 
viding that  the  supreme  court  and  the  dis- 
trict court  shall  have  power  fro  issue  writs 
of  quo  warranto,  simply  fixes  the  ancient 
remedies  secured  by  such  writs,  leaving  to 
the  legislature  the  right  to  prescribe  the 
procedure,  and  under  the  statute  providing 
that  the  remedies  theretofore  obtainable  in 
that  form  might  be  had  by  civil  action,  and 
extending  the  remedy  so  as  to  permit  a 
private  person  to  contest  with  another  pri- 
vate person  the  right  or  title  to  a  public 
office,  the  district  court  has  jurisdiction  of 
a  civil  action  in  the  nature  of  quo  war- 
ranto, to  try  title  to  the  of&ce  of  county 
judge,  as  between  two  contestants  therefor. 
Newhouse  v.  Alexander,  30:  602,  110  Pac. 
1121,  27  Okla.  46. 

206.  County  courts  are  not  deprived  of 
their  statutory  jurisdiction  to  decide  elec- 
tion contests  as  to  municipal  offices,  by 
the  enactment  of  a  statute  granting  cities 
power  by  ordinance  to  decide  such  contests, 
since,  as  the  latter  act  merely  provides 
a  new  remedy  for  an  existing  right,  that 
neither  denies  the  existing  remedy  nor  is 
incompatible  with  it,  the  new  remedy  is 
Digest  1-52  I,.R.A.(N.S.) 


i  cumulative;    and    a    contestant    can    invoke 

either   of   the   remedies   at   his   election,   as 
I  they    are    concurrent,      State    ex    rel.    Love 

v.  Cosgrave,  26:  207,  122  N.  W.  885,  85  Neb. 

187.  (Annotated) 

Maritime  lien. 

207.  Liens  upon  vessels  created  by  state 
statute  are  enforceable  by  state  courts, 
where  they  are  not  within  the  admiralty 
jurisdiction.  West  v.  Martin,  21:324,  97 
Pac.  1102,  51  Wash.  85. 
Condemnation  proceedings. 

208.  The  creation  of  a  superior  court  for  a 
county  with  jurisdiction  equal  to,  and  con- 
current with,  the  circuit  court  in  all  civil 
actions  and  proceedings  in  law  and  in  equi- 
ty, the  statute  declaring  that,  whenever  any 
statute  shall  mention  the  circuit  court,  the 
words  shall  be  deemed  to  apply  to  the  judge 
of  the  superior  court,  will  entitle  that  court 
to  entertain  jurisdiction  of  condemnation 
proceedings,  power  of  which  is  conferred  by 
statute  upon  the  circuit  court  or  the  judges 
thereof.  Wisconsin  River  Improv.  Co.  v. 
Pier,  21:  538,  118  N.  W.  857,  137  Wis.  325. 
Trademarks. 

209.  A  state  court  has  jurisdiction  of  a 
suit  to  recover  profits  made  through  the  in- 
fringement of  a  trademark.  Nelson  v.  J. 
H.  Winchell  &  Co.  23:  1150,  89  N.  E.  180, 
203  Mass.  76. 

Action  under  Federal  employers'  lia- 
bility act. 

210.  The  enforcement  of  rights  under  the 
employers'  liability  act  of  April  22,  1908, 
regulating  the  liability  of  interstate  rail- 
way carriers  for  the  death  or  injury  of  their 
employees  while  engaged  in  interstate  com- 
merce, cannot  be  regarded  as  impliedly  re- 
stricted to  the  Federal  courts,  in  view  of 
the  concurrent  jurisdiction  provision  of  the 
judiciary  act  of  August  13,  1888,  §  1,  and 
of  the  amendment  made  by  the  act  of  April 
5,  1910,  to  the  original  employers'  liability 
act,  which,  instead  of  granting  jurisdiction 
to  the  state  courts,  presupposes  that  they 
already  possess  it.  Mondou  v.  New  York, 
N.  H.  &  H.  R.  Co.  38:  44,  32  Sup.  Ct.  Rep. 
169,  223  U.  S.  1,  56  L.  ed.  327. 

211.  Jurisdiction  of  an  action  to  enforce 
the  rights  arising  under  the  employers'  lia- 
bility act  of  April  22,  1908,  regulating  the 
liability  of  interstate  railway  carriers  for 
the  death  or  injury  of  their  employees  while 
engaged  in  interstate  commerce,  may  not  be 
declined  by  the  courts  of  a  state  whose 
ordinary  jurisdiction  as  prescribed  by  local 
laws  is  adequate  to  the  occasion,  on  the 
theory  that  such  statute  is  not  in  harmony 
with  the  policy  of  the  state,  or  that  the 
exercise  of  such  jurisdiction  will  be  attended 
by  inconvenience  and  confusion  because  of 
the  different  standards  of  right  established 
by  the  congressional  act  and  those  recog- 
nized by  the  laws  of  the  state.  Mondou  v. 
New  York,  N.  H.  &  H.  R.  Co.  38:  44,  32  Sup. 
Ct.  Rep.  169,  223  U.  S.  1,  56  L.  ed.  327. 

212.  State  courts  may,  on  the  ground  of 
comity,  take  jurisdiction  of  actions  by  em- 
ploA'ees  to  recover  damages  from  railroad 
companies  for  personal  injuries  arising  un- 
der the  employer's  liability  act  of  Congress 

(.H.VD.A.W.,!    •:  ' 


re4 


COURTS,  II.  a,  2. 


relating  to  interstate  commerce,  of  April  22, 
10(«.  Bradbury  v.  Chicago,  R.  I.  &  P.  R. 
Co.  40:  684,  128  N.  W.  1,  149  Iowa,  51. 

(Annotated) 

2.  OHffinal  jurisdiction  of  appellate 
court;  superintending  control. 

(See  also  same  heading  in  Digest  L.R\A. 
1-10.) 

Amendment  in  exercise  pf  original  jurisdic- 
tion of  alternative  writ  of  mandamus, 
B«e  Mandamus,  117. 

Power  to  issue  writ  of  prohibition,  see  Pro- 
hibition, 2. 

213.  A  constitutional  provision  conferring 
upon  the  supreme  court  jurisdiction  of  civil 
cases  in  which  the  state  i&  a  party  includes 
any  civil  action  in  which  the  state  has  such 
an  interest  that  the  action  may  be  brought 
and  prosecuted  in  its  name.  State  v.  Chi- 
cago, B.  &  Q.  R.  Co.  34:  250,  130  N.  W.  295, 
88  Neb.  669. 

214.  The  jurisdiction  conferred  upon  the 
supreme  court  of  a  state  by  the  Constitu- 
tion, "in  all  civil  cases  in  which  the  state 
shall  be  a  party,"  is  not  confined  to  cases 
in  which  the  state  has  a  mere  pecuniary 
interest,  but  may  extend  to  all  cases  in 
which  the  state,  through  its  proper  officers, 
seeks  the  enforcement  of  public  right  or  the 
restraint  of  public  wrong.  State  v.  Pacific 
Exp.  Co.  18:  664,  115  N.  W.  619,  80  Neb.  823. 

215.  A  suit  to  enjoin  violation  of  a  stat- 
ute forbidding  intoxication  and  the  drink- 
ing of  intoxicating  liquors  upon  railway 
trains  may  be  brought  in  the  supreme  court 
by  the  attorney  general,  upon  application 
of  the  state  railway  commissioners,  where 
that  court  has  original  jurisdiction  of  civil 
actions  in  which  the  state  is  a  party.  State 
V.  Chicago,  B.  &  Q,  R.  Co.  34:  250,  130  N.  W. 
295,  88  Neb.  6G9. 

216.  A  court-martial  is  not  an  inferior 
court  within  the  meaning  of  a  constitutional 
provision  givii;g  a  supreme  court  appellate 
jurisdiction  and  a  general  superintending 
control  over  inferior  courts,  since  such 
court,  although  exercising  judicial  func- 
tions, belongs  to  the  executive  department  of 
the  government,  and  not  to  the  judicial. 
State  ex  rel.  Poole  v.  Nuchols,  20:  413,  119 
N.  W.  632,  18  N.  D.  233.  (Annotated) 

217.  To  invoice  the  ordinary  original  ju- 
risdiction of  the  supreme  court,  leave  to 
proceed  must  in  all  cases  be  first  obtained 
from  the  court  itself^  upon  a  prima  facie 
showing'  by  affidavit  that  the  case  is  a 
proper  one  for  its  cognizance.  State  ex  rel. 
West  V.  Cobb,  24:  639,  104  Pac.  361,  24  Okla. 
G62. 

218.  The  writs,  power  to  issue  which  is 
conferred  upon  the  supreme  court  by  a  con- 
stitutional provision  authorizing  it  to  issue 
writs  of  habeas  corpus,  mandamus,  quo  war- 
ranto, certiorari,  injunction,  and  other  reme- 
dial writs,  are  the  prerogative  writs  of  the 
common  law,  and  the  jurisdiction  over  them, 
conferred  by  such  grant  of  power,  is  exehi- 
Digest  1-52  L.R.A.(N.S.) 


sive.      People    ex    rel.    Graves    t.    District 
Court,  13:  768,  86  Pac.  87,  37  Colo.  443. 

(Annotated) 

219.  Concurrent  original  jurisdiction  to 
issue  remedial  writs  is  not  conferred  upon 
the  district  and  supreme  courts  by  consti- 
tutional provisions  conferring  upon  the  one 
original  jurisdiction  of  all  cases  botli  at  law 
and  in  equity,  and  upon  tlie  other  power  to 
issue  writs  of  habeas  corpus,  mandamus, 
quo  warranto,  certiorari,  injunction,  and  oth- 
er remedial  writs.  People  ex  rel.  Graves 
v.  District  Court,  13:  768,  86  ir'ac.  87,  37 
Cold,  443. 

220.  The  supreme  court  may,  in  the  exer? 
cise  of  its  original  jurrsdiction,  issue  a 
writ  of  mandamus  to  compel  an  inferior 
court  to  execute  a  decree  in  favor  of  a  pri- 
vate citizen,  if  its  refusal  would  amount  to 
a  denial  of  justice.  People  ex  rel.  Farmers' 
Reservoir  &  Irrig,  Co.  v.  District  Court,  24: 
886,  104  Pac,  484.  46  Colo,  386, 

221.  Writs  on  behalf  of  the  state  to  pre- 
vent frauds  at  elections  can  be  issifed  only 
by  courts  having  jurisdi(?tion  to  issue  pre- 
logative  writs.  People  ex  rel.  Graves  v. 
District  Court,  13:  768,  86  Pac.  87,  37  Colo. 
443, 

222.  The  supreme  court  has  original  juris- 
diction to  enjoin  the  consummation  of  a 
conspiracy  to  carry  an  election  by  fraud, 
under  a  constitutional  provision  giving  it 
power  to  issue  writs  of  habeas  corpus,  man- 
damus, quo  warranto,  certiorari,  injunction, 
and  other  remedial  writs,  with  the  authority 
to  hear  and  determine  the  same.  People 
ex  rel.  Miller  v.  Tool,  6:  822,  86  Pac.  224, 
35  Colo,  225. 

223.  The  supreme  court  will  not  exercise 
its  original  jurisdiction  merely  to  determine 
which  of  two  candidates  for  a  county  office 
received  the  greater  number  of  votes  at  a 
nominating  election.  State  ex  rel.  Binder 
v,  Gofi,  9:  916,  109  N,  W.  628.  129  Wis.  668, 

224.  The  supreme  court  will  exercise  its 
original  jurisdiction  to  determine  whether 
or  not,  under  a  new  primary  election  law, 
the  certificate  of  nomination,  when  once  is- 
sued, is  conclusive  and  cannot  be  rescinded 
by  the  canvassing  board,  since  the  q^iestion 
is  one  of  general  importance  to  the  state  and 
could  not  be  decided  in  the  regular  way  in 
the  short  time  between  the  primary  and  gen- 
eral election ;  but  the  court  will  not  decide 
the  ancillary  question,  which  of  two  candi- 
dates for  nomination  for  a  certain  office  re- 
ceived the  greater  number  of  votes.  State 
ex  rel,  Rinder  v,  Goff,  9:  916,  109  N,  W,  628, 
129  Wis,  668. 

225.  An  application  to  the  supreme  court 
for  a«  original  writ  to  enjoin  the  secretary 
of  state  from  certifying  to  the  A'arious 
county  auditors  the  names  of  candidates 
for  nomination  for  the  office  of  United 
States  Senator  for  the  purpose  of  having 
such  names  placed  upon  tJie  general  election 
ballots  presents  and  involves  a  question  of 
public  right,  or  one  affecting  the  sovereignty 
of  the  state,  its  franchises  and  prerogatives, 
or  the  liberty  of  the  peqple.  State  ex  rel. 
MeCue  v,  Blaisdell,  24:  465,  118  N.  W.  141, 
18  N.  D.  55.  


COURTS,  II.  a,  3. 


763 


226.  Where  the  office  of  the  attorney 
general  has  rendered  an  opinion  declaring 
a  statute  providing  for  the  enrolment  of 
electors  in  parties  for  the  purpose  of  pri- 
mary elections  unconstitutional,  and  cer- 
tain officers  are  about  to  commence  their 
duties  under  such  statute,  and  are  ignorant 
whether  to  follow  the  opinion  of  the  attor- 
ney general  or  the  statute,  thereby  causing 
a,  want  of  state-wide  uniformity  in  suffrage 
proceedings  and  consequent  doubt  as  to 
the  legality  of  the  nominations  made  at 
primary  elections,  a  proper  condition  exists 
for  the  exercise  of  the  original  jurisdiction 
of  a  court  of  last  resort  to  determine  by 
mandamus  the  construction  of  such  law. 
State  ex  rel.  Miller  v.  Flaherty,  41:  132, 
136  N.  W.  76,  23  N.  D.  313. 

227.  The  superintending  control  extends 
to  reviewing  the  decision  of  the  trial  court 
that  a  grand  juror  was  incompetent  to  act, 
which  results  in  its  refusal  to  proceed  \yith 
the  trial,  and  to  requiring  it  to  do  so  by 
mandamus  if  the  decision  was  erroneous. 
State  ex  rel.  McGovern  v.  Williams,  20:941, 
116   N.   W.   225,    136   Wis.    1.      (Annotated) 

228.  An  application  to  the  supreme  court 
for  a  writ  of  mandamus  directed  to  the  state 
auditor  to  require  him  to  credit  the  account 
of  the  state  board  of  tax  commissioners 
under  authoritj*  of  chap.  303,  N.  D.  Laws 
1911,  with  certain  appropriations  therein 
made,  and  to  issue  warrants  upon  the  state 
treasurer  to  pay  the  salaries  and  meet  the 
expenses  of  a  tax  commission,  involves 
the  prerogatives,  rights,  and  franchises  of 
the  state  government,  and  invokes  the  orig- 
inal jurisdiction  of  the  supreme  court. 
State  ex  rel.  Birdzell  v.  Jorgenson,  49:  67, 
142  N.  W.  450,  25  N.  D.  539. 

229.  The  supreme  court  has  no  original 
jurisdiction  of  an  action  by  an  insurance 
company  against  the  state  insurance  com- 
missioner, seeking  a  writ  of  mandamus  to 
compel  the  issuance  of  a  permit  to  the  in- 
surance company  to  do  business  within  the 
state,  since,  as  the  insurance  business  is  of 
a  private  nature,  no  question  of  major  im- 
portance which  is  j^ublici  juris  is  involved. 
The  Homesteaders  v.  McComb,  38:  1000,  103 
Pac.  691,  24  Okla,  201. 

230.  The  supreme  court  has  no  original 
jurisdiction  of  an  action  by  an  insurance 
company  against  the  state  insurance  com- 
missioner, seeking  a  writ  of  mandamus  to 
compel  the  issuance  of  a  permit  to  the  in- 
surance company  to  do  business  within  the 
state,  on  the  ground  that  the  insurance  com- 
missioner is  within  the  purview  of  an  in- 
ferior court  or  board  or  commission  created 
by  law,  as  the  word  "conamissions"  and 
"boards,"  used  in  connection  with  the  term 
"inferior  courts,"  mean  only  such  commis- 
sions and  boards  as  judicial  powers  are 
vested  in  and  from  which  appeals  may  be 
taken,  and  the  insurance  commissioner, 
being  an  executive  officer,  has  only  such  ju- 
dicial powers  as  are  incident  to  the  adminis- 
tration of  his  department.  The  Homestead- 
ers V.  McComb,  38:  1000,  103  Pac".  691,  24 
Okla.  201.  (Annotated) 
Digest  1-52  I..R.A.(N.S.) 


231.  The  supreme  court  has  original  juria- 
risdiction  of  a  suit  to  enjoin  the  attempted 
enforcement  of  a  statute  requiring  the  de- 
struction of  all  dams  in  the  navigable  wa- 
ters of  the  state,  the  alleged  result  of  which 
will  be  to  destroy  and  confiscate  private 
property,  and  to  abate  all  improvements  to 
navigation  constructed  under  authority  of 
the  legislature.  State  ex  rel.  Wausau 
Street  R.  Co.  v.  Bancroft,  38:  526,  134  N. 
W.  330,  148  Wis.  124. 

232.  The  supreme  court  may,  in  aid  of  its 
original  jurisdiction  in  quo  warranto  to 
punish  a  foreign  insurance  company  for  at- 
tempting a  usurpation  and  abuse  of  power, 
issue  a  temporary  restraining  order  to  pre- 
vent such  conduct  pending  the  hearing. 
State  ex  rel.  Barker  v.  Assurance  Co.  46: 
955,  1.58  S.  W.  640,  251   Mo.  278. 

233.  The  supreme  court  will,  when  an 
application  for  issuance  of  a  writ  of  quo 
warranto  to  a  municipal  corporation  requir- 
ing it  to  show  cause  why  its  franchise 
should  not  be  declared  null  and  void,  is 
made  to  it  by  the  attorney  general,  exer- 
cise the  discretion  given  it  by  statute;  and 
if,  in  its  judgment,  the  application  should 
have  been  made  to  the  district  court,  will 
deny  the  information.  State  ex  rel.  Young 
V.  Kent,  i:  826,  104  N.  W.  948,  96  Minn.  255. 

234.  The  supreme  court,  although  having 
original  jurisdiction  in  actions  in  the  na- 
ture of  quo  warranto  when  the  issues  in- 
volved are  publici  juris,  must  dismiss  an  ac- 
tion to  oust  from  office  a  county  judge,  in 
which  it  appears  that  an  issue  of  fact  is 
involved,  or  will  be  involved,  for  which  a 
jury  trial  will  be  demanded,  where  neither 
power  nor  procedure  exists  therein  for  sum- 
moning, impaneling,  or  paying  a  jury,  nor 
warrant  exists  to  send  the  action,  upon 
the  raising  of  such  an  issue,  to  any  other 
tribunal  possessing  such  authority,  for  trial 
thereof.  State  ex  rel.  West  v.  Cobb,  24: 
639,  104  Pac.  361,  24  Okla.  662. 

235.  Where  a  statute  affords  adequate 
proceedings  for  determining  whether  a  pub- 
lic water  supply  franchise  has  been  abused 
and  should  be  forfeited,  the  supreme  court 
will  not  determine  such  questions  where  the 
initial  right  to  use  the  franchise  appears, 
and  no  good  cause  is  shown  for  trying  com- 
plicated issues  of  fact  in  thre  supreme  court 
rather  than  'in  proceedings  specially  pro- 
vided for  in  local  courte  with  jury  trials. 
State  ex  rel.  Ellis  v.  Tampa  Waterworks 
Co.   22:  680,  48   So.   639,  57   Fla.   533. 

8.  As  dependent  on  amount. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

To  confer  appellate  jurisdiction,  see  Ap- 
peal AND  Error,  II.  e,  4. 

Covenants  as  to,  see  Covenants  and  Con- 
ditions, 2,  27,  117,  134,  135. 

Jurisdictional  amoimt  in  justice's  court,  see 
Justice  of  the  Peace,  4. 

See  also  supra,  204. 


766 


COURTS,  II.  a,  4,  5. 


Amount  in  contToversy. 

236.  In  determining  whether  or  not  a 
court  whose  jurisdiction  is  limited  to  suits 
in  which  tlie  amount  in  controversy  does 
not  exceed  a  certain  sum  has  jurisdiction  of 
an  action  on  a  note  providing  for  a  counsel 
fee,  the  amount  of  the  fee  must  be  added  to 
the  face  of  the  note.  Parka  v.  Granger, 
27:  157,  51  So.  716,  96  Miss.  503. 

( Annotated ) 

237.  Attorneys'  fees  provided  for  in  a 
promissory  note  and  fixed  at  a  certain  per 
cent  are  to  be  included  in  determining  the 
jurisdiction  of  the  court  in  a  suit  on  the 
note.  Humphrey  v.  Coquillard  Wagon 
Works,  49:  600,  132  Pac.  8S9,  37  Okla.  714. 

(Annotated) 

4.  Matters  as  to  title. 
i(,8ee  aho   same  heading   in  Digest  L.R.A. 

.":        l-W.) 

Action  to  quiet  title,  see  Cloud  on  Title. 

238.  A  decree  of  the  county  court  con- 
firming in  a  widow  the  absolute  title  to  a 
homestead  asserted  and  selected  from  the 
lands  of  her  decea.sed  husband  is  void  in 
the  absence  of  constitutional  or  statutory 
grant  to  such  court  of  power  so  to  act 
other  than  an  act  purporting  to  confer 
such  power,  which  act,  subsequent  to  the 
assertion,  has  been  held  unconstitutional 
and  void.  Draper  v.  Clayton,  29:  153,  127 
N.  W.  369,  87  Neb.  443. 

5.  Trusts;  probate;  insolvency;  infants. 


{See  also   same  heading  in  Digest  L.R.A. 


•Appeal    from    judgment    of    probate    court, 

see  Appeal  and  Error,  9,  45. 
General   equitable   jurisdiction   over   trusts, 

see  Equity,  I.  d. 
Necessity  that  order  committing  person  to 

insane  asylum  should  show  existence  of 
'■        jurisdictional    facts,    see    Incompetent 

Persons,   38. 
Repeal  of  statute  as  to  probate  jurisdiction, 

see  Statutes,  347. 
Probate  and  contest  of  wills,  generally,  see 

Wills,  I.  e.  ■  * 

239.  A  probate  court  may  dissolve  a  part- 
nership one  member  of  which  has  died,  not- 
withstanding a  clause  in  his  will  providing 
that  the  business  shall  be  continued  by  his 
executors,  where  the  surviving  partner  Is 
abusing  his  trust,  misappropriating  the 
funds,  and  •  a  disagreement  has  arisen  be- 
tween him  and  the  executors.  Parnell  v. 
Thompson,  33:  658,  105  Pac.  502,  81  Kan. 
119. 

Estates  of  decedents. 

Jurisdiction  of  probate  court   over   descent 

of  right  in  mining  claim,  see  Descent 

AND   Distribution,   29. 
Jurisdiction  to  appoint  administrators,  oee 

Executors  and  Adm>inistratobs,  3-6. 

240.  A  proceeding  pending  on  petition 
Digest  1-52  I..R.A.(N.S.) 


for  the  allotment  of  dower  in  personalty  be- 
longing to  an  estate  in  course  of  adminis- 
tration in  one  of  the  United  States  courts 
in  Indian  territory  sitting  in  probate,  at 
the  time  of  admission  of  the  state  into  the 
Union,  was,  by  §  19  of  the  enabling  act 
(Act  Cong.  June  16,  1906,  ciiap.  3335,  34 
Stat,  at  L.  277),  and  §  23  of  the  schedule  of 
the  Constitution,  transferred  to  the  county 
court  of  the  county  in  which  was  located 
the  court  in  which  said  case  was  pending. 
Burdett  v,  Burdett,  35:  964,  109  Pac.  922, 
26  Okla. -416. 

241.  The  United  States  courts  for  Indian 
Territory,  sitting  in  probate,  were,  by  act  of 
Congress  of  May  2,  1890,  chap.  182,  26  Stat, 
at  L.  81,  which  extended  to  and  put  in  force 
in  Indian  Territory  Mansf.  Dig.  chap.  53,  on 
"dower,"  vested  with  jurisdiction  to  allot 
dower  in  personalty  belonging  to  estates  in 
course  of  administration  therein.  Burdett 
v.  Burdett,  35:  964,  109  Pac.  922,  26  Okla. 
416. 

242.  Under  a  statute  permitting  a  court 
of  probate  to  appoint  commissioners  to  ex- 
amine and  adjust  all  claims  and  demands 
against  deceased,  the  court  may  allow 
against  the  estate  claims  for  alimony  which 
accrued  between  a  divorce  decree  and  the 
remarriage  of  decedent's  wife,  and  is  not 
precluded  from  so  doing  by  the  fact  that 
jurisdiction  over  decrees  for  alimony  is,  by 
statute,  vested  in  the  chancery  court.  Mar- 
tin V.  Thison,  18:  257,  116  N.  W.  1013,  153 
Mich.  516.  (Annotated) 

243.  Power  may  be  conferred  upon  the 
orphans'  court  to  administer  the  estates  of 
persons  who  have  been  absent  from  their 
places  of  abode  and  unheard  of  for  seven 
years,  under  a  constitutional  provision  that 
such  courts  shall  have  all  the  powers  now 
vested  in  the  orphans'  courts  of  the  state, 
subject  to  such  changes  as  the  legislature 
may  prescribe.  Savings  Bank  of  Baltimore 
V.  Weeks,  22:  221,  72  Atl.  475,  110  Md.  78. 

244.  The  proper  court  of  the  county  in 
which  is  located  land  ceded  by  a  state  to 
the  Federal  government  for  a  soldiers'  home 
has  jurisdiction  to  grant  an  administra- 
tion on  the  estate  of  a  soldier  dying  in  the 
home.  Divine  v.  Unaka  Nat.  Bank,  39:  586, 
140  S.  W.  747,  125  Tenn.  98.  (Annotated) 
As  to  infants. 

245.  The  district  court,  being  one  of  gen- 
eral legal  and  equitable  jurisdiction,  may, 
in  the  exercise  of  its  equity  powers,  deter- 
mine the  question  of  the  right  of  visita- 
tion of  a  parent  denied  the  custody  of  a 
child.  Allison  v.  Bryan,  30:  146,  109  PaC. 
934.  26  Okla.   520. 

246.  Under  Idaho  Const,  art.  5,  §  21,  pro- 
bate courts  have  original  jurisdiction  in  all 
matters  of  probate  and  appointment  of 
guardians;  and  under  and  by  virtue  of  such 
constitutional  power  and  jurisdiction  it  is 
competent  for  the  legislature  to  authorize 
and  direct  probate  courts  to  make  investi- 
gation of  charges  preferred  concerning  de- 
linquent children,  and  to  make  all  necessary 
©rders  in  relation  thereto,  as  has  been  pro- 
vided by  Idaho  Sess.  Laws  1905,  p.  106,  en- 
ti-tled  "An  Act  To  Provide  for  the  Caj-e  of 

;.<S.Vl).A.il,*I  Hb-'i    .tR9ai<£ 


COURTS,  II.  a,  6— III.  c. 


m 


Delinquent    ChiUIren."      Re    Sharp,    i8:  886, 
96  Pac.  563,  15  Idaho,  120. 

6.  Crimes. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Territorial  limitations  as  to,  see  supra,  I.  b, 

2. 
Conflict  of  authority  as  to,   see  infra,   IV. 

d,  2. 
Effect  of  pending  prosecution  in  other  court 

see  Cbiminal  Law,  II.  e. 

6.  Terms;  place  of  sitting. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Relief    against    judgment    after    term,    see 

Judgment,   339,   398-403. 
What    time    referred    to    by    statute    fixing 

time  for  termination  of  term  of  court, 

see  Time,  1. 

c.  Transfer  of  cause, 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Transfers  between  state  and  Federal  courts, 
see  Removal  of  Causes. 

d.  Opinions. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Opinion   as   part   of   record   on   appeal,   see 

Appeal  and  Error,  IV.  j. 
Admissibility  of  opinions  of,  in  evidence,  see 

Evidence,  763. 

///.  Federal  courts. 

a.  In  general;  suits  by  or  against  state 
or  state  officers. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Appellate  jurisdiction  of,  see  Appeal  and 
Error,  II.  a;  II.  b. 

Right  of  Federal  court  to  direct  taking  of 
deposition  in  perpetuuam  rei  memori- 
am,  see  Depositions,  1,  2. 

Habeas  corpus  in,  see  Habeas  Corpus,  II. 

Effect  of  voluntary  discontinuance  of  ac- 
tion in  state  court  after  judgment,  to 
bar  action  in  Federal  court,  see  Judg- 
ment,  118. 

Immunity  of  state  from  suit,  see  State, 
17-32.  irnjXf^   1. 

';•:■'•»     y 

247.  A  Federal  court  may  grant  an  order 
protecting  a  citizen  of  a  state  other  than 
that  in  which  it  is  sitting,  who,  having  been 
adjudged  sane  by  its  courts,  has  brought 
suit  before  such  court  to  recover,  on  the 
theory  that  the  appointmcHt  was  v#id  for 
lack  of  jurisdiction,  his  property  from  a 
Digest   1-52  L.R.A.(N.S.) 


committee  appointed  by  the  courts  of  the 
state  where  it  is  sitting  which  had  ad- 
judged plaintiff  insane,  and  committed  him 
to  an  asylum  'from  which  he  had  escaped, 
from  reincarceration  as  an  escaped  patient 
in  case  he  comes  into  the  state  to  try  his 
suit.  Chanler  v.  Sherman,  22:  992,  162  Fed. 
19,  88  C.  C.  A.  673.  (Annotated) 

248.  A  Federal  court  should  grant  a  suit- 
or who  had  been  adjudged  insane  by  the 
courts  of  the  state  in  which  it  is  sitting, 
and  committed  to  an  asylum,  from  which  he 
escaped  to  another  state  where  he  was  ad- 
judged sane,  a  writ  of  protection  to  enable 
him  to  come  before  it  to  try  his  case  brought 
to  secure  possession  of  his  property,  if  the 
issues  require  his  presence,  but  not  if  his 
testimony  may  as  well  be  taken  by  deposi- 
tion. Chanler  v.  Sherman,  22:  992,  162  Fed. 
19,  88  C.  C.  A.  673. 

&.  Suits  against  United  States. 

(See  same  heading  in  Digest  L.R.A.  1—10.) 


c.  Federal  questions. 


■  u\ 


Federal  question  as  conferring  appellate 
jurisdiction  on  Federal  Supreme  Court, 
see  Appeal  and  Error,  60-63. 

Federal  question  as  giving  right  to  remove 
cause  to  Federal  Court,  see  Removal 
of  Causes,  2. 

249.  Whether  or  not  the  enforcement  of 
a  state  statute  providing  for  the  establish- 
ment of  rates  for  railroad  transportation 
will  take  property  of  the  railroad  compa- 
nies without  due  process  of  law  raises  a 
Federal  question  within  the  jurisdiction  of  a 
circuit  court  of  the  United  States,  if  the 
requisite  amount  is  involved,  although  its 
determination  may  incidentally  involve  a 
question  of  fact.  Ex  parte  Young,  13:  932, 
209  U.  S.  123,  28  Sup.  Ct.  Rep.  441,  52  L. 
ed.  714. 

250.  The  circuit  court  of  the  United 
States  has  jurisdiction  at  the  suit  of  stock- 
holders of  a  railroad  company,  to  enjoin  the 
company  from  putting  in  force  transporta- 
tion rates  established  by  a  state  statute, 
which  are  so  low  as  to  be  confiscatory  of 
the  company's  property,  and,  as  preliminary 
thereto,  to  institute  an  inquiry  as  to  wheth- 
er or  not  the  rates  are  in  fact  too  low.  Ex 
parte  Young,  13:  932,  209  U.  S.  123,  28  Sup. 
Ct.  Rep.  441,  52  L.  ed.  714. 

251.  Whether  or  not  a  railroad  company 
is  deprived  of  the  equal  protection  of  the 
laws,  and  its  property  rendered  liable  to  be 
taken  without  due  process  of  law,  by  a  state 
statute  providing  for  the  establishment  of 
rates  of  transportation,  because  the  penal- 
ties fixed  for  violation  of  the  statute  are  so 
enormous  as  to  require  obedience  to  the  law 
rather  than  risk  the  penalties  in  testing  it. 
although  such  obedience  might,  in  the  end. 
result  in  confiscation  of  the  railroad  prop- 
erty, is  a  Federal  question,  within  the  ju- 
risdiction of  the  circuit  court  of  the  United 
States.  Ex  parte  Young,  13:  932,  209  U.  S. 
123,  28  Sup  Ct.  Rep.  441,  .52  L.  ed.  714. 


T88 


CX)URTg,  III.  d— f. 


252.  A  Federal  circuit  court,  if  properly 
appealed  to,  cannot  decline,  on  tlie  ground 
of  discretion  or  comity,  to  take  juriadic- 
tion  of  a  suit  to  enjoin  tlie  ^nforcement  of 
state  statutes  iixing  gaa  rates  whicli  are 
asserted  to  violate  the  Federa'l  Constitution. 
VVillcox  V.  Consolidated  Gas  Co.  48:  1134, 
29  Sup.  Ct.  Rep.  192,  212  U.  S.  19.  53  L. 
ed.  382. 

d.  As  dependent   on  citizenship. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  Federal  districts,  see  infra,  III.  i. 

Presumption  and  burden  of  proof  as  to  citi- 
zenship,   see    Evidence,    124-126. 

Jurisdictional  averment  of  residence,  see 
Pleading,   166-168, 

Removal  of  action  on  ground  of  citizenship, 
see  Removal  of  Causes,  I.  b. 

253.  If  a  cross  bill  in  a  suit  in  a  Federal 
court  assumes  the  character  of  an  original 
bill,  jurisdiction  of  which  depends  upon  di- 
verse citizenship  of  tlie  parties,  it  will  be 
dismissed  if  such  element  is  wanting.  Pat- 
ton  v.  Marshall,  26:  127,  173  Fed.  350,  97  C 
C.  A.  610. 

Assignees  as  parties. 

254.  That  the  purpose  to  bring  a  cause 
of  action  within  the  jurisdiction  of  a  Federal 
court  is  the  motive  which  induces  an  as- 
signment of  the  property  out  of  which  the 
cause  of  action  arises,  which  assignment  is 
real  and  absolute,  does  not  deprive  the  as- 
signee of  his  right  to  invoke  the  jurisdic- 
tion of  that  court  to  determine  the  cause, 
under  a  statute  providing  that,  if  it  appear 
to  the  satisfaction  of  a  Federal  court  that 
a  suit  therein  does  not  involve  a  controver- 
sy properly  within  the  jurisdiction  thereof, 
or  that  the  parties  thereto  have  been  col- 
lusively  made  or  joined  for  the  purpose  of 
creating  Federal  jurisdiction,  the  court  may 
dismiss  or  remand  the  suit,  as  it  is  sham 
or  fictitious  transfers  which  colorably  place 
titles  and  rights  in  assignees  to  enable  them 
to  maintain  suits  in  the  Federal  courts  for 
the  benefit  of  the  assigrtors  which  are  ob- 
noxious to  s\ich  statutes,  and  not  the  mo- 
tive or  purpose  of  real  transfers.  O'Neil  v. 
Wolcott  Mining  Co.  27:  200,  174  Fed.  527. 
fl»C.  C.  A.  309. 

e.  As  dependent  on  nniount. 

V' 

XBee  also   same   heading  in  -Digest  L4R.A. 

■"'  1-10.)  ■■l^"H>»q     trV'      llIM)       -, 

Jurisdictional  amount  to  confer  appellate 
jurisdiction,    see    Appeal    and    Error. 

■  -   -11.  c,  4.  :f/.^.■:  !•■ 

255.  An  amount  in  controversy  within  the 
jurisdiction  of  the  circuit  coiirt  of  the  Unit- 
ed States  is  shown  by  a  bill  to  enjoin  in- 
terference with  complainant's  right  to  do 
business  in  a  state  the  value  of  which  is 
laid  at  more  than  $25^00,  which  is  not 
controverted  by  defendant,  akhough  the  bill 
Digest  1-52  I*R.A.(N.S.) 


does  not  set  up  the  value  of  the  business, 
or  specifically  allege  the  extent  to  which  it 
will  be  damaged  by  defendant's  acts.  Even- 
son  v.  Sp^ilding,  g:  964,  150  Fed.  517,  82 
C.  C.  A.  263. 

f.  In  equity;   following  state  practice; 
effect  of  state  laws. 

(See  also  same  heading  in  Digest  L.R  A 
1-70.) 

Rule  ae  to  difference  between  causes  of  ac- 
tion at  law  and  in  equity,  see  Action 
OB  Suit,  70. 

££Pect  of  state  laxrs  to  restrict'  or  en- 
large. 

256.  Rights  created  and  remedies  provided 
by  the  statutes  of  the  states  to  be  pursued 
in  the  state  courts  may  be  enforced  and 
administered  in  the  national  courts  either 
at  law,  in  equity,  or  in  admiralty,  as  the 
nature  of  the  rights  and  the  remedies  may 
require,  where  the  citizenship  of  the  par- 
ties and  the  amounts  involved  bring  the 
actions  within  the  provisions  of  the  Con- 
stitution and  the  acts  of  Congress.  Karri- 
son  V.  Remington  Paper  Co.  3:  954,  140  Fed. 
385,  72  C.  C.  A.  405. 

257.  The  power  of  the  Federal  courts,  de- 
rived from  the  Constitution  and  laws  of  the 
United  States,  to  enforce  their  judgments 
and  decrees,  and  to  decide  every  contro- 
versy affecting  their  complete  execution, 
cannot  be  destroyed  or  limited  by  the  legis- 
lation of  the  states  or  the  decisions  of  their 
courts.  Brun  v.  Mann,  12:  154,  151  Fed. 
145,  80  C.  C.  A.  513. 

258.  Tlie  jurisdiction  of  the  national 
courts  was  not  granted  by,  and  may  not  be 
revoked,  annulled,  or  impaired  by,  the  law 
or  aci  of  any  state.  Mechanics  Ins.  Co.  v. 
C.  A.  Hoover  Distilling  Co.  31:  873,  182  Fed. 
590,  105  C.  C.  A.  128. 

259.  A  state  statute  prohibiting  actions 
to  recover  intoxicating  liquors  or  their 
value  is  not  suihcient  to  prevent  an  action 
for  that  purpose  in  the  Federal  court,  al- 
though the  transaction  occurred  within  the 
state.  Mechanics  Ins.  Co.  v.  C.  A.  Hgover 
Distilling  Co.  31:  873,  182  Fed.  590,  105  C. 
C.  A.  128. 

260.  In  the  absence  of  an  adequate  reme- 
edy  at  law  in  the  Federal  courts,  they  may 
exercise  equitable  jurisdiction,  although  an 
adequate  remedy  at  law  may  exist  in  the 
state  courts.  Brun  v.  Mann,  12:  154,  151 
Fed.  145,  80  C.  C.  A.  513. 

261.  In  a  suit  in  equity  in  the  United 
States  circuit  court  to  prevent  tlie  enforce- 
ment of  an  order  of  the  railroad  commis- 
sioners of  South  Dakota,  requiring  the 
plaintiff  express  company  to  receive  at  a 
specified  time  and  place  all  moneys  ten- 
dered to  it  for  transportation,  in  which  suit 
there  is  diversity  of  citizenship,  and  the 
defendants  have  answered  and  have  filed  a 
cross  bill  to  enforce  the  order,  the  United 
States  circuit  court  on  the  hearing,  and  the 
circuit  court  of  appeals  on  the  appeal,  have 
the  same  power  to  hear  and  determine  the 


COURTS,  III.  g— IV.  a. 


fG9 


original  question  and  "to  do  justice  in  the 
premises"  as  is  conferred  upon  the  circuit 
courts  of  South  Dakota  by  the  state  act  to 
regular  commerce.  Piatt  v.  Lecocq,  15: 
558,  158  Fed.  723,  85  C.  C.  A.  621. 

g.  Ancillary  ju7-isdiction. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

262.  A  suit  in  equity  dependent  upon  a 
former  action  of  which  a  Federal  court  had 
jurisdiction  may  be  maintained  in  such 
court  without  diverse  citizenship  or  in  the 
absence  of  a  Federal  question,  for  the  pur- 
pose of  aiding,  enjoining,  or  regulating  the 
original  suit,  or  to  restrain  or  enforce  its 
judgment  or  decree  therein,  or  to  enforce  or 
obtain  an  adjudication  of  liens  upon  or 
claims  to  property  in  custody  of  the  court  in 
the  original  suit.  Brun  v.  Mann,  12:  154, 
151  Fed.  145,  80  C.  C.  A.  513. 

Ti.  Crimes. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Territorial  limitations  as  to,  see  supra,  I. 
b,   2. 

Jurisdiction  of  Federal  court  to  punish  un- 
lawful sale  of  intoxicating  liquors  on 
military  reservation,  see  Intoxicating 
LiQUOBS,  185. 

263.  The  absence  of  a  valid  indictment 
destroys  the  jurisdiction  of  a  Federal  court 
to  try  one  accused  of  an  infamous  crime, 
and  proceedings  taken  without  such  indict- 
ment are  absolutelv  void.  Renegar  v.  Unit- 
ed States,  26:  683/172  Fed.  646,^97  C.  C.  A. 
172. 

i.  Districts. 

(See  also   same   heading  in  Digest   L.R.A. 

1-10.) 

« 

264.  The  presence  of  one  of  the  defendants 
in  the  Federal  district  in  which  suit  by 
the  United  States  under  the  anti-trust  act 
of  July  2,  1890  (26  Stat,  at  L.  209,  chap.  647, 
U.  S.  Comp.  Stat.  1901,  p.  3201),  §  4,  is 
brought  to  restrain  violations  of  that  act, 
gives  tlie  circuit  court  jurisdiction,  and 
justifies  it  in  making  an  order  under  §  5 
for  the  service  of  process  upon  all  the  other 
defendants,  wlierever  tliey  may  be  found. 
Stand.ard  Oil  Co.  v.  United  States,  34:  834, 
31  Sup.  Ct.  Rep.  502,  221  U.  S.  1,  55  L.  ed. 
619. 

IV.  Conflict    of    axithority ;    relation    of 
state  to  Federal. 

a.  Exclusiveness    of    jurisdiction    first 
acquired. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Suit  in  other  state  as  ground  for  abate- 
ment, see  Abatement  and  Revival,  27- 
30. 

Digest  1-52  I..B.A.(N.S.)    ' 


Offenses  against  different  sovereignties,  see 

CuiMiNAL  Law,  III. 
Estoppel   to  object   to  jurisdiction  of  state 

court,  see  Estoppel,  214. 

265.  After  a  court  of  equity  has  acquired 
jurisdiction  of  the  property  and  parties  in 
a  suit  brought  to  subject  real  estate  to  the 
payment  of  a  judgment,  subs-^quent  proceed- 
ings by  any  of  the  parties  in  other  courts, 
without  leave  of  the  court  which  first  ac- 
quired jurisdiction,  are  ineffectual  to  estiib- 
lish  claims  to  the  property  or  its  proceeds 
adverse  to  those  of  the  complainant ,  but 
the  duty  is  imposed  upon  the  court  first  ac- 
quiring jurisdiction  to  see  and  determine 
such  adverse  claims  when  seasonably  pre- 
sented to  it.  Brun  v.  Mann,  12:  154,  151 
Fed.  145,  80  C.  C.  A.  513. 

266.  Actual  seizure  of  the  property  is  not 
necessary  to  give  jurisdiction  exclusive  of 
all  other  courts  to  a  court  of  competent 
jurisdiction  which  has  appointed  a  receiver 
of  the  property  in  a  proceeding  in  which 
the  relief  sought  cannot  be  obtained  ex- 
cept by  an  actual  seizure  of  the  property. 
State  V.  Palmer,  22:  316,  158  Fed.  705,  85 
C.  C.  A.  603. 

267.  A  district  court  having  jurisdiction 
of  an  insolvency  proceeding  against  a  corpo- 
ration under  chap.  79,  N.  M.  Laws  1905,  in 
which  a  mortgagee  of  the  insolvent  corpo- 
ration is  made  a  party  defendant  and  an- 
swers, setting  up  his  mortgage,  ie  entitled 
to  retain  the  jurisdiction  thus  acquired  by 
it,  and  to  administer  the  estate  of  the 
corporation  to  the  exclusion  of  another  dis- 
trict court  in  which,  pending  the  former 
proceeding,  said  mortgagee  obtained  a  de- 
cree of  foreclosure  and  sale  of  the  insolv- 
ent's property  thereunder.  State  ex  rel. 
Parsons  Min.  Co.  v.  McClure,  47:  744,  133 
Pac.  1063,  17  N.  M.  694. 

As  between  state  and  Federal  courts. 

Effect  of  appeal  from  order  appointing  re- 
ceiver to  enable  court  of  concurrent  ju- 
risdiction to  take  jurisdiction,  see  Ap- 
peal AND  Erbob,  102. 

Judgment  of  Federal  court  dismissing  suit 
removed  to  it  as  bar  to  further  prose- 
cution in  state  court,  see  Judgment,  67. 

268.  The  rule  that  the  court  which  first 
acquires  jurisdiction  of  specific  property,  in 
a  suit  or  proceeding  to  enforce  a  lien  upon 
it  or  subject  it  to  sale,  may  retain  the  ex- 
clusive legal  custody  of  it  until  the  suit  is 
at  an  end,  does  not  deprive  a  Federal  court, 
in  the  exercise  of  its  general  jurisdiction, 
from  decreeing  the  sale  of  lands  for  the 
satisfaction  of  a  judgment  rendered  by  it, 
although  the  estate  of  the  deceased  judg- 
ment debtor  is  being  administered  in  the 
county  court,  where  the  jurisdiction  of  the 
latter  tribunal  is  not  broad  enough  to  per- 
mit it  to  make  such  a  decree,  but  the  power 
to  do  so  is  limited  to  state  courts  of  general 
jurisdiction.  Brun  v.  Mann,  12:  154,  151 
Fed.  145,  80  C.  C.  A.  513.  (Annotated) 

269.  A  Federal  court  has  jurisdiction  to 
decree  the  sale  of  lands  of  a  deceased  judg- 
ment debtor,  for  the  payment  of  a  judgment 
which  it  rendered  against  him  in  his  lifetime, 


49 


ro 


COURTS,  IV.  b. 


altliough  administration  of  his  estate  is 
pending  in  a  state  court,  where  his  adminis- 
tratrix refuses  to  comply  with  lier  statutory 
duty  to  institute  a  proceeding  in  the  state 
coTirt  to  sell  the  unexempt  real  property  of 
the  decedent  to  pay  debts.  Brun  v.  Mann, 
12:  154,  151  Fed.  145,  80  C.  C.  A.  513. 

270.  The  Federal  courts,  although  without 
jurisdiction  of  the  administration  of  the 
estates  of  deceased  persons  as  such,  have 
jurisdiction  of  controversies  arising  during 
the  pendency  of  the  administration  of  the 
estates  of  deceased  persons  in  the  state 
•.•ourt,  which  condition  the  enforcement  of 
their  judgments  or  decrees;  and  their  deci- 
sions and  decrees  prevail  over  the  stat- 
utes of  the  states  and  the  decisions  of 
their  courts.  Brun  v.  Mann,  12:  154,  151 
Fed.  145,  80  C.  C.  A.  513. 
'  271.  In  the  exercise  of  its  jurisdiction  to 
enforce  its  judgments,  a  Federal  court  may 
decree  a  sale  of  the  real  estate  of  a  deceased 
judgment  debtor  during  the  pendency  of  ad- 
ministration proceedings  in  a  state  court, 
Avhere  a  statute  of  the  state  in  which  the 
Federal  court  is  sitting  and  the  land  is  situ- 
ated confers  power  upon  the  state  courts  of 
general  jurisdiction  to  make  such  a  decree. 
Brun  V.  Mann,  12:  154,  151  Fed.  145,  80  C. 
C.   A.   513. 

272.  A  Federal  court,  in  which  is  first 
raised  the  question  of  the  validity,  under  the 
Federal  Constitution,  of  a  state  statute,  has 
a  right  to  decide  that  question  to  the  ex- 
clusion of  the  state  courts,  and  may  en- 
join criminal  proceedings  subsequently  com- 
menced under  it  in  the  state  court  until  its 
duty  is  performed.  Ex  parte  Young,  13: 
932,  209  U.  S.  123,  28  Sup.  Ct.  Rep.  441,  52 
L.  ed.  714. 

273.  An  attachment  from  a  state  court 
cannot  reach  property  of  a  bankrupt  after 
the  commencement  of  bankruptcy  proceed- 
ings against  him  in  the  Federal  court. 
French  v.  White,  2:  804,  62  Atl.  35,  78 
Vt.  89. 

274.  The  Federal  court  from  which  a  writ 
of  attachment  is  sued  out  has  authority  to 
determine  whether  or  not  the  levy  is  valid, 
and  not  a  state  court  by  which  a  receiver 
of  the  property  is  appointed  in  a  suit  in- 
stituted after  the  levy  of  the  attachment. 
Beardslee  v.  Ingraham,  3:  1073,  76  N.  E. 
476,   183   N.   Y.   411. 

275.  A  receiver  appointed  by  a  Federal 
court  in  a  suit  by  the  trustee  to  fore- 
close a  mortgage  cannot  oust  by  summary 
motion  a  receiver  of  the  property  pre- 
viously appointed  by  a  state  court  at  the 
suit  oi  a  holder  of  bonds  secured  by  the 
mortgage,  who  had  a  right  to  sue  in  case 
of  the  refusal  of  the  trustee  to  do  so,  upon 
the  groimd  that  the  allegations  upon  which 
his  suit  was  founded  were  untrue.  Young 
v.  Hamilton,  31:  1057,  69  S.  E.  593,  135  Ga. 
339. 

276.  A  new  action  may  be  maintained  in 
the  Federal  court  to  enforce  the  statutory 
liability  of  a  stockholder,  where  the  first 
action  was  prosecuted  in  the  state  court, 
and  voluntarily  dismissed  without  prejudice 
to  a  future  action,  notwithstanding  a  state 
Digest  1-52  I^R.A.(N.S.) 


statute  providing  that  if  an  action  is  com- 
menced in  time,  and  the  plaintiff  fails  in 
it  otliervvise  than  upon  the  merits,  he  may 
commence  a  new  action  within  one  year  af- 
ter the  failure,  the  ellect  of  which  is  to- 
make  an  exception  to  the  general  statute 
of  limitations  of  the  state,  which  is  jus- 
ticiable in  the  Federal  as  well  as  in  the 
state  court.  Harrison  v.  Remington  Paper 
Co.  3:  954,  140  Fed.  385,  72  C.  C.  A.  405. 

277.  After  the  removal  to  the  Federal 
court  of  an  action  in  which  jurisdiction  was 
secured  by  attachment  of  real  estate,  the 
state  court  has  no  jurisdiction  to  protect 
the  interests  of  the  attaching  creditor  against 
trespassers,  but  he  must  resort  to  the  T'eu 
eral  court  for  protection;  and  the  fact  that 
the  trespassers  are  residents  of  the  state  i» 
immaterial.  Coffin  v.  Harris,  6:  624,  54  S. 
E.  437,  141  N.  C.  707.  (Annotated) 

b.  Interference  ivltli  other  courts;   in- 
junctions. 

(See  also  same  heading  in  Digest  L.R.A  ' 
1-10.) 

Injunction  against  prosecution  of  suit  in 
court  of  co-ordinate  jurisdiction,  see 
Corporations,  273. 

On  habeas  corpus,  see  Habeas  Corpus,  II> 

See  also  Receivers,  47. 

278.  The  courts  of  one  state  in  which  a 
litigation  has  progressed  to  a  final  decree, 
from  which  an  appeal  has  been  taken,  may 
enjoin  the  defeated  party  from  maintain- 
ing a  suit  in  another  state,  to  enjoin  his 
adversary  from  proceeding  with  the  prose- 
cution of  the  cause.  Old  Dominion  Copper 
Min.  &  Smelting  Co.  v.  Bigelow,  40:  314, 
89  N.  E.  193,  203  Mass.  159. 

As  betw^een  state  and  Federal  courts. 
See  also  supra,  268-277. 

279.  The  Federal  court  has  no  jurisdic- 
tion by  reason  of  U.  S.  Rev.  Stat.  §  720, 
Tf.  S.  Comp.  Stat.  1901,  p.  581,  to  enjoin 
prosecution  of  an  action  in  a  state  court 
by  brokers  to  recover  compensation  for  ef- 
fecting a  sale  of  real  estate,  which  has  pro- 
ceeded to  issue  before  the  suit  in  the 
Federal  court  is  instituted.  Patton  v. 
Marshall,  26:  127,  173  Fed.  350,  97  C.  C.  A. 
610. 

280.  An  injunction  will  not  issue  out  of 
the  Federal  court  before  which  a  suit 
founded  on  a  creditors'  bill  is  pending  for 
misappropriation  of  corporate  property,  to 
stay  subsequent  actions  at  law  instituted  in 
a  state  court  for  the  recovery  of  personal 
judgments  upon  a  debt  and  certain  notes  in- 
volved in  the  former  suit,  where  such  subse- 
quent  actions  will  not  prevent  the  effectual 
determination  of  the  issues  in  the  equity 
suit  over  which  it  had  acquired  exclusive 
jurisdiction,  and  will  not  withdraw  or 
interfere  with  the  dominion  it  had  acquired 
over  specific  property  to  such  an  extent  that 
its  determination  of  the  controversy  about 
it  and  the  enforcement  of  its  decree  con- 
cerning it  may  be  in  any  degree  prevented, 
notwithstanding    the    equitable    remedy  .ai 


COURTS,  IV.  c.    y) 


771 


an  accounting  would  be  more  complete, 
prompt,  and  adequate,  and  it  had  been 
stipulated  in  the  equitable  action  that  a 
final  settlement  of  the  issues  of  indebted- 
ness raised  in  the  legal  actions  should  be 
had  therein.  Guardian  Trust  Co.  v.  Kansas 
City  S.  R.  Co.  28:  620,  171  Fed.  43,  96  C.  C. 
A.  285. 

281.  An  order  issued  out  of  a  suit  found- 
ed on  a  creditors'  bill  in  a  Federal  court, 
whereby  the  defendant  is  restrained  from 
directly  or  indirectly  selling,  transferring, 
assigning,  pledging,  or  otherwise  disposing 
of,  or  parting  with  the  possession  or  con- 
trol of,  any  of  the  property,  assets,  notes, 
stocks,  bonds,  claims  and  demands  of  the 
debtor  mentioned  in  the  complaint,  does 
not  prevent  the  bringing  of  actions  at  law 
by  the  debtor  to  recover  upon  any  of  such 
notes  and  claims,  as  such  order  cannot  be 
construed  as  requiring  the  debtor  to  allow 
the  statute  of  limitations  to  run  upon  its 
causes  of  action.  Guardian  Trust  Co.  v. 
Kansas  Citv  S.  R.  Co.  28:  620,  171  Fed.  43, 
96  C.  C.  A."'285. 

282.  A  state  court  has  no  authority  to 
enjoin  a  sale  under  an  execution  issued  by 
a  Federal  court  in  a  matter  within  its 
jurisdiction.  Beardslee  v.  Ingraham,  3:  1073, 
76  N.  E.  476,  183  N.  Y.  411. 

283.  The  prosecution  of  one  in  a  Federal 
court  under  an  invalid  Federal  statute  can- 
not be  enjoined  by  a  state  court,  since  the 
remedy  at  law  is  adequate,  by  showing 
the  invalidity  of  the  statute.  Thompson 
V.  Van  Lear,' 5:  588,  92  S.  W.  773,  77  Ark. 
506. 

284.  An  injunction  issued  by  a  Federal 
court  against  the  enforcement  of  a  state 
penal  statute  which  is  alleged  to  violate 
rights  secured  by  the  Federal  Constitution 
is  no  obstacle  to  the  enforcement  of  the 
statute  by  the  state  courts  against  the  one 
in  whose  favor  the  injunction  was  issued. 
State  v.  Southern  R.  Co.  13:966,  59  S.  E.  570, 
145  K  C.  495. 

285.  No  injunction  ought  to  be  awarded 
by  a  Federal  court  against  the  enforcement 
of  a  state  railroad  rate  law  which  is  alleged 
to  violate  the  Federal  Constitution,  unless 
the  case  is  reasonably  free  from  doubt.  Ex 
parte  Young,  13:  932,  209  U.  S.  123,  28  Sup. 
Ct.  Rep.  441,  52  L.  ed.  714. 

286.  The  power  of  a  Federal  court  to  en- 
join state  oflicials  from  enforcing  a  state 
statute  the  validity  of  which,  under  the  Fed- 
eral Constitution,  has  been  questioned  before 
it,  does*  not  extend  to  restraining  a  state 
court  from  acting  in  a  case  brought  before 
it  to  enforce  the  statute,  nor  investigation 
or  action  by  a  grand  jury  under  it. .  Ex 
parte  Young,  13:  932,  209  U.  S.  123,  28  Sup. 
Ct.  Rep.  441,  52  L.  ed.  714. 

287.  The  Federal  court  cannot,  in  a  suit 
to  enjoin  further  prosecution  in  a  state 
court  of  an  action  which  has  been  removed 
to  it,  undertake  to  decide  the  truth  or 
falsity  of  allegations  of  fraudulent  joinder 
of  parties,  on  which  the  right  of  removal 
depends,  but  must  leave  that  question  to  be 
determined  in  the  action  which  was  so  re- 
moved; nor  will  it  determine,  on  the  facts 
Digest  1-52  L.R.A.(N.S.) 


disclosed  in  the  injunction  suit,  that  the 
removal  was  improper,  and  dismiss  the  case 
under  the  power  conferred  upon  it  by  act 
of  Congress  of  March  3,  1875,  chap.  137, 
§  5.  Donovan  v.  Wells,  Fargo,  &  Co.  22: 
1250,  169  Fed.  363,  91  C.  C.  A.  609.  , 

Courts  of  different  states. 

288.  An  injunction  will  not  be  granted  %y 
the  courts  of  one  state  to  restrain  the  pros- 
ecution of  an  action  on  promissory  notes 
in,  another  state,  where  the  only  basis  for 
the  application  is  that  the  notes  are  con- 
tracts of  the  former  state,  that  both  par- 
ties and  the  complainant's  witnesses  reside 
in  the  former  state,  and  that  the  complain- 
ant has  no  property  in  the  other  state, 
where  there  is  nothing  to  show  that  the 
laws  of  the  other  state  differ  in  any  re- 
spect from  those  of  the  former  state,  or  that 
the  complainant  will  not  receive  the  full 
benefit  of  the  statute  of  the  former  state 
upon  which  he  relies  as  a  defense  to  the 
notes.  Freick  v.  Hinkly,  46:  695,  141  N. 
W.  1096,  122  Minn.  24. 

289.  A  court  of  one  state  in  which  a  suit 
instituted  by  an  alleged  widow  for  the  par- 
tition of  lands  situated  therein  which  were 
owned  by  her  husband  at  his  death  is  pend- 
ing, may  restrain  the  prosecution  of  a  suit 
subsequently  instituted  by  defendants  in  an- 
other state  to  quiet  title  to  land  therein 
which  was  also  owned  by  the  husband  at 
his  death,  where  all  the  interested  parties 
reside  within  the  jurisdiction  of  the  former 
court,  are  properly  impleaded  in  the  suit 
therein  pending,  and  the  rights  of  the  wid- 
ow to  any  interest  in  all  the  lands  so  owned 
depends  upon  the  validity  of  her  marriage 
and  upon  the  effect  of  an  alleged  antenup- 
tial agreement  and  its  alleged  release,  which 
issues  are  paramount  in  both  suits  but  were 
first  joined  in  the  court  of  the  state  in 
which  the  motion  for  the  restraining  order 
was  made.  Munn  v.  Gordon,  25:  917,  106 
Pac.  286,  81  Kan.  537. 

290.  That  wages  due  from  a  railroad  op- 
erating in  two  states,  to  an  employee  resi- 
dent in  one  of  them,  are  subject  to  the  ju- 
risdiction of  the  courts  of  the  other  state 
in  a  proceeding  to  subject  them  to  a  claim 
of  a  creditor  of  the  employee  residing  in 
the  same  state  with  him,  does  not  impair 
the  right  of  the  courts  of  the  latter  state, 
acting  i)i  personam,  to  compel  observance 
of  its  exemption  laws.  Wierse  v.  Thomas, 
15:  1008,  59  S.  E.  58,  145  N.  C.  261. 

c.  Property  in  custody  of  courts  or  offi- 
cers. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Prohibition  to  prevent  inferior  court  from 
interfering  with  property  in  hands  of 
receiver,  see  Pbohibition,  21. 

291.  An  attachment  seciires  such  posses- 
sion of  real  estate  upon  which  it  is  levied 
that  a  receiver  subsequently  appointed  liy 
another  court  has  no  authority  to  interfere 


COURTS,  IV.  d,  1— V.  b. 


with    it.      Beardslee    v.    Ingraham,    3:  1073, 
76   N.    E.   476,    183    N.    Y.    411. 
J'  (Annotated) 

•T:  292.  Neither  the  granting  of  an  appeal 
Upon  the  refusal  of  the  court  to  set  aside 
an  order  appointing  a  receiver,  nor  an  im- 
authorized  order,  upon  the  approval  of  tlio 
£<^)peal  bond,  requiring  him  to  turn  back 
the  assets  in  his  hands  to  their  owner,  will 
release  such  assets  from  the  custody  of  the 
court  which  has  acquired  jurisdiction  in  the 
matter,  so  as  to  make  them  subject  to 
seizure  by  a  receiver  appointed  by  another 
court  of  concurrent  jurisdiction.  State  ex 
rel.  Sullivan  v.  Revnolds,  15:  963,  107  S.  W. 
487,  209  Mo.   161.'  (Annotated) 

d.  When  state  or  Federal  jurisdiction 
exclusive;  limitations  upon. 

1.  In  general. 

fSee  also   same  heading   in   Digest   L.R.A. 
1-10.) 

Matters  affecting  commerce. 

293.  The  jurisdiction  of  the  state  courts 
of  an  action  by  a  sliipper  against  a  common 
carrier  for  damages  resulting  from  unlaw- 
ful discrimination  against  him  in  rates  is 
not  affected  by  the  provisions  of  the  Fed- 
eral interstate  commerce  act  (act  Feb.  4, 
1887,  chap.  104,  24  Stat,  at  L.  .379,  U.  S. 
Comp.  Stat.  1901,  p.  3154),  where  the  ship- 
ments involved  are  within  points  within  the 
state  and  the  transportation  is  wholly  there- 
in ;  and  where  such  appears  from  the  com- 
plaint a  demurrer  for  lack  of  jurisdiction 
■by  reason  of  such  act  should  be  overruled, 
■especially  where  there  is  no  suggestion  in 
the  complaint  that  the  defendant  was  ever 
engaged  in  interstate  commerce,  or  that  its 
road  is  so  situated  as  to  enable  it  to  engage 
therein.  Sullivan  v.  Minneapolis  &  R.  R.  R. 
Co.  45:  612,  142  N.  W.  3,  121  Minn.  488. 
Admiralty  and  maritime  cases. 
Jurisdiction  in  admiralty  generally,  see  Ad- 

MIEAXTY,  I. 

-I  294.  A  mere  provision  of  a  Federal  stat- 
ute empowering  the  Secretary  of  War  to 
remove  vessels  sunken  in  navigable  harbors 
of  the  United  States  does  not  deprive  the 
state  in  which  the  harbor  is  located  of  ju- 
risdiction over  the  subject-matter.  Hagan 
V.  Richmond,  3:  1120,  52  S.  E.  385,  104 
Va.  723. 

Sankrnptcy  cases. 

Jurisdiction  of  bankruptcy  court,  generally, 
see  Bankruptcy,  3,  4. 
295.  The  state  and  Federal  courts  have 
concurrent  jurisdiction  of  - 1  action  brought 
by  a  trustee  in  bankruptcy  to  avoid  a  pref- 
erence or  to  recover  property  fraudulently 
conveyed  by  the  bankrupt;  but  of  all  other 
actions  brought  by  a  trustee  to  recover 
property  belonging  to  the  bankrupt,  the 
state  court  has  sole  jurisdiction.  Drew  v. 
Myers,  17:  350,  116  N.  W.  781.  81  Neb.  750. 

2.  Criminal  proce^idings. 

(f(ee  same  heading  in  Digest  L.R.A.  1-10.) 
Digest  1-52  I..iR.A.(N.S.) 


Y.  Rules  of  decision. 

a.  In  general. 

(See   also   same   heading  in   Digest    L.R.A. 
1-10.) 

On  appeal,  see  Appeal  and  Error,  411-415. 
Refusal  to  follow  rule  of  decision  at  com- 
mon law,  see  Common  Law,  3. 

296.  General  expressions  in  every  opinion 
are  to  be  taken  in  connection  with  the  case 
in  which  those  expressions  are  used.  Peo- 
ple V.  Bank  of  San  Luis  Obispo,  37:  934, 
112  Pac.  866,  159  Cal.  65. 

6.  Stare  decisis;  previous  decisions  of 
same  court. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Law  of  case,  see  Judgment,  94. 

297.  The  rule  of  stare  decisis,  stated  in 
simple  form  and  considered  in  relation  to 
its  effect  upon  private  affairs,  is  really  noth- 
ing more  than  the  application  of  the  doc- 
trine of  estoppel  to  court  decisions.  It 
finds  its  support  in  the  sound  principle  that 
when  courts  have  announced,  for  the  guid- 
ance and  government  of  individuals  and  the 
public,  certain  controlling  principles  of  law, 
or  have  given  a  construction  to  statutes 
upon  which  individuals  and  the  public  have 
relied  in  making  contracts,  they  ought  not, 
after  these  principles  have  been  promul- 
gated and  after  these  constructions  have 
been  published,  to  withdraw  or  overrule 
them,  thereby  disturbing  contract  rights 
that  had  been  entered  into,  and  property 
rights  that  had  been  acquired,  upon  the 
faith  and  credit  that  the  principle  an- 
nounced or  the  construction  adopted  in  the 
opinion  was  the  law  of  the  land.  Oliver 
Co.  v.  Louisville  Realty  Asso.  51:  293,  161 
S.  VV.  570,  156  Ky.  628. 

298.  A  court  of  last  resort  will  not  feel 
bound  to  adhere  to  an  earlier  decision  that 
a  party  entering  into  a  contract  with  a 
corporation  is  estopped,  in  an  action  there- 
on, from  setting  up  as  a  defense  the  failure 
of  the  corporation  to  comply  with  a  statute, 
enacted  pursuant  to  the  Constitution,  for 
the  purpose  of  carrying  out  a  wise  public 
policy,  which  provides  that  it  shall  not  be 
lawful  for  any  corporation  to  carry  on  any 
business  in  the  state  until  it  shall  have 
filed  a  statement  giA'ing  the  location  of  its 
place  of  business  within  the  state,  and  tlie 
name  of  an  agent  thereat  upon  whom  process 
may  be  served.  Oliver  Co.  v.  Louisville 
Realty  Asso.  51:293,  161  S.  W.  570,  156 
Ky.  628. 

299.  A  corporation  which  subjects  itself 
to  a  fine  by  prosecuting  its  business  within 

I  the  state  without  complying  with  statutory 

I  requirements  is  not  in  a  position  to  invoke 

j  the  doctrine  of  stare  decisis  to  induce  the 

court    not   to   overrule   an   earlier    tfecision 

to  the  effect  that  the  other  contracting  par- 


COURTS,  V.  c,  d. 


775 


ty  is  estopped  from  setting  up  as  a  defense 
the  failure  of  the  corporation  to  comply 
with  such  requirements.  Oliver  Co.  v. 
Louisville  Realty  Asso.  51:  293,  161  S.  W. 
570,  156  Ky.  628. 

300.  A  judicial  interpretation  of  the 
words  in  a  railroad  charter  permitting  the 
corporation  to  "farm  out"  the  right  of 
transportation  is  stare  decisis,  and  binding 
in  a  subsequent  case,  although  the  latter 
is  between  different  parties.  Hill  v.  Atlan- 
tic &  N.  C.  R.  Co.  9:  606,  55  S.  E.  854,  143 
N.   C.  539. 

301.  That  an  assignment  of  a  bill  of  lad- 
ing as  collateral  security  for  a  draft  was 
made  while  a  decision  was  in  force  that  the 
assignee  thereby  assumed  the  obligation  of 
the  consignor  for  breach  of  warranty  in  the 
sale  does  not  prevent  the  application  in  his 
favor,  against  the  consignee,  of  the  correct 
doctrine  that  he  did  not  assume  such  obli- 
gations. jNIason  v.  Nelson,  i8:  1221,  62  S.  E. 
625,  148  N.  C.  492. 

302.  The  courts  cannot  change  a  rule  of 
Jaw  that  has  been  in  force  for  fifty  years, 
that  proof  of  seduction  cannot  be  allowed  to 
aggravate  damages  in  an  action  for  breach 
of  promise  of  marriage.  Wrynn  v.  Downey, 
4:  615,  63  Atl.  401,  27  R.  I.  454. 

30.'5.  The  doctrine  of  stare  decisis  does 
not  preclude  a  departure  from  the  estab- 
lished rule  of  evidence  that  dying  declara- 
tions are  admissible  only  in  criminal  cases. 
Thurston  v.  Fritz,  50:  1167,  138  Pac.  625, 
91  Kan.  468. 

304.  The  rule  that  one  inducing  another, 
by  trick,  device,  or  false  representation,  to 
part  with  his  property  for  an  illegal  pur- 
pose, is  not  guilty  of  larceny,  cannot  be 
changed  by  the  courts  without  usiirping  leg- 
islative power  and  violating  the  constitu- 
tional rights  of  those  entitled  to  the  pro- 
tection oit  the  rule  as  one  of  personal  liberty. 
People  V.  Tompkins,  12:  loSi,  79  N.  E.  326, 
186  N.  Y.  413.  (Annotated) 
Obiter  dicta. 

305.  The  doctrine  of  stare  decisis  is  not 
applicable  to  dicta  found  in 'opinions  of  the 
court.  Friedman  v.  Suttle,  9:  933,  85  Pac. 
726,  10  Ariz.  57. 

306.  A  ruling  in  a  case  is  not  dictum 
merely  because  it  was  necessary,  on  account 
of  the  conclusion  reached  upon  that  ques- 
tion, to  consider  another  question  the  de- 
cision of  which  controlled  the  judgment. 
Galloway  v.  Darby,  44:  782,  151  S.  W.  1014, 
105  Ark.  558. 

Srroneons  decisions. 
Vested  right  in  erroneous  decision,  see  Con- 
stitutional Law,  49. 

307.  The  doctrine  of  stare  decisis  does  not 
require  or  permit  a  court  to  adhere  to  a  de- 
cision found  to  be  clearly  erroneous,  which 
affects  injuriously  the  general  business  law. 
Mason  v.  Nelson,  18:  1221,  62  S,  E.  625,  148 
N.  C.  492. 

308.  When  it  appears  that  a  party  was 
not  misled  to  his  prejudice  by  reliance  on 
a.decision  that  tlie  court  rendering  it  subse- 
quently concluded  was  erroneous,  the  court 
will  not  feel  estopped  to  overrule  it  by  the 
insistence  of  the  party  claiming  to  have 
Digest  1-52  L.R.A.(N.S.) 


I  acted   under   it   that   it   will   overturn   con- 
tracts and  engagements  that  he  has  entered 

I  into  the  faith  of  it.     Oliver  Co.  v.  Louis- 
ville  Roaltv   Asso.  51:293,   161   S.  W.   570, 

j  156  Ky.  628. 
Rule   of  property. 

309.  A  decision  that  a  foreign  adoption 
gives  the  child  no  rights  of  inheritance  to 
real  estate  within  the  state  establishes  a 
rule  of  property  which  will  not  be  changed 
by  the  court  after  the  lapse  of  years.  Brown 
V.  Finley,  21:  679,  47  So.  577,  157  Ala.  424. 

c.  Construction  and  constitutionality  of 

statutes  or  ordinances. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Jurisdiction  to  review  constitutionality  of 
statute,  see  supra,  I.  c,  2. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  II.  a. 

Validity  of  statutes  generally,  see  Statutes, 
I.  c. 

Construction  of  statutes  generally,  see  Stat- 
utes, II. 

d.  State   courts   following   Federal   de- 

cisions. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Denial  of  due  process  by  failure  to  follow 
decision  of  Supreme  Court,  see  Con- 
stitutional Law,  559. 

310.  The  mere  contrary  conclusion 
reached  by  the  Supreme  Court  of  the  United 
States  upon  a  similar  state  of  facts  is  not 
alone  a  sufficient  consideration  of  a  state 
court's  overruling  one  of  its  own  decisions. 
Old  Dominion  Copper  Min.  &  Smelting  Co. 
V.  Bigelow,  40:  314,  89  N.  E.  193,  203  Mass. 
159. 

311.  A  judgment  of  a  Federal  court  di- 
recting a  call  upon  the  stockholders  of  an 
insolvent  corporation  to  meet  a  deficiency 
in  its  assets  to  cover  its  obligations  is  not 
conclusive  in  an  action  in  the  courts  of  the 
state  of  a  stockholder's  residence  that  he 
is  bound,  under  his  subscription  contract, 
to  pay  more  than  he  agreed  to  pay  for  the 
stock,  although  that  was  less  than  the  par 
value.  Southworth  v.  Morgan,  51:  56,  98 
N.  E.  490,  205  N.  Y.  293. 

312.  A  state  court  may  impose  a  fine  and 
imprisonment  for  a  definite  term  for  con- 
tempt in  violating  a  prohibitory  injunc- 
tion of  a  civil  nature  where  the  fine  in 
such  cases  is  regarded  as  a  penalty  inuring 
to  the  public,  although  the  Supreme  Court 
of  the  United  States  has  ruled  that  a  con- 
tempt proceeding  in  such  case  was  a  mere 
private  remedy  for  which  imprisonment  for 
a  definite  term  cannot  be  imposed.  Roth- 
schild &  Co.  V,  Steger  &  Sons  Piano  Mfg. 
Co.  42:  793,  99  N.  E.  920,  256  111.  196. 

(Annotated) 


774 


COURTS,  V.  e,  f. 


e.  FoUowing     decisions     of    courts     of 
other  state  or  country. 

(See  also   same  heading  in  Digest   L.R.A. 
1-70.) 

'Full  faith  and  credit  rule  as  compelling 
'  court  to  follow  rules  of  court  of  other 
'"      state,  see  Judgment,  279. 

"  313.  In  determining  the  common  law  of 
another  state,  the  decisions  of  the  courts  of 
final  resort  ot  that  state  will  be  followed, 
regardless  of  precedents  to  the  contrary,  in 
the  state  where  the  trial  is  held;  and  this 
rule  applies  to  the  law  merchant  as  well  as 
to  other  branches  of  the  common  law.  Sykes 
V.  Citizens'  Nat.  Bank,  19:  665,  98  Pac.  206, 
78  Kan.  688. 

314.  Where  tlie  rules  of  the  common  law 
relating  to  a  particular  matter  are  not  ex- 
pressly stated  in  the  reported  cases  of  tlie 
English  coui'ts  prior  to  1775,  the  statement 
of  the  courts  of  this  country  and  of  Eng- 
land subsequent  to  that  time — especially 
when  they  do  not  purport  to  modify  the 
common  law — are  entitled  to  great  weight 
in  determining  the  common-law  rule  prior 
to  that  date.  Horace  Waters  &  Co.  v. 
Gerard,  24:  958,  82  N.  E.  143,  189  N.  Y. 
302. 

315.  A  decision  of  a  foreign  state  holding 
a  promissory  note  which  is  uncertain  and 
indelinite  as  to  time,  negotiable  at  common 
law,  will  not  be  accepted  as  determining  the 
law  of  that  state  where  the  decision  was 
rendered  by  an  intermediate  court,  and  is  in 
conflict  with  the  well-settled  common  law 
doctrine  of  the  state  in  which  the  action 
arises.  Sykes  v.  Citizens'  Nat.  Bank,  19: 
665,  98  Pac.  206,  78  Kan.  688. 

/.  Federal    courts   following   state    de- 
cisions. 

(See  also   same   heading  in  Digest  L.R.A. 
1-10.) 

-i . 

n.316.  The  Federal  courts,  in  exercising 
their  jurisdiction  founded  on  diverse  cit- 
izenship, in  cases  involving  the  administra- 
tion of  the  common  law,  do  not  hold  them- 
selves bound  by  the  decisions  of  the  courts 
of  the  state  in  which  they  are  sitting,  un- 
less such  decisions  have  so  clearly  estab- 
lished a  settled  rule  in  the  premises  as  to 
make  it  a  part  of  the  peculiarly  local  law 
of  the  state,  but  will  resort  to  the  same 
sources  of  information  as  to  what  such  law 
is  as  are  open  to  the  state  courts.  Snare 
A  Triest  Co.  v.  Friedman,  40:  367,  169  Fed. 
1,  94  C.  C.  A.  369. 

317.  A  Federal  court  will  not  apply  to  a 
case  arising  in  a  particular  state  general 
rules  of  law  inconsistent  with  those  applied 
by  the  state  court,  in  the  absence  of  any- 
thing to  show  that  its  rules  are  not  in  har- 
mony with  the  common  law,  or  the  gsneral 
law,  or  the  general  trend  of  authority.  New 
York  C.  &  H.  R.  R.  Co.  v.  Price,  iQ\  1103, 
15i)  Fed.  330,  86  C.  C.  A.  502. 
Digest  1-52  I,.R.A.(N.S.) 


.318.  The  Federal  court  will  follow  a  state 
decision  as  to  the  duty  of  a  railroad  com- 
pany to  fence  its  tracks  for  the  benefit  of 
other  than  owners  of  adjoining  land  under 
a  statute  of  that  state,  although,  in  the  par- 
ticular case  decided,  no  obligation  to  fence 
was  imposed  by  the  terms  of  the  statute, 
where,  as  an  additional  reason  for  its  de- 
cision, the  court  held  that  the  obligation 
to  fence  was  simply  in  favor  of  adjoining 
landowners.  New  York  C.  &  H.  R.  R.  Co.  v. 
Price,  16:  1103,  159  Fed.  330,  86  C.  C.  A.  502. 

319.  The  Federal  courts  follow  the  local 
law  in  determining  what  constitutes  a 
water  course.  Chicago,  B.  &  Q.  R.  Co.  v. 
Board  of  Supervisors,  31:  11 17,  182  Fed. 
291,  104  C.  C.  A.  573. 

320.  The  Federal  courts  will  apply  the 
general  rule  that  a  loan  by  a  wife  to  her 
husband  from  her  separate  estate  creates 
an  equity  in  her  favor,  notwithstanding  de- 
cisions of  the  local  state  court  to  the  con- 
trary. James  v.  Gray,  i:  321,  131  Fed.  401, 
65  C.  C.  A.  385.  (Annotated) 

321.  Whether  the  repeal  of  so  much  of 
a  municipal  ordinance  granting  trackage 
rights  in  a  city  street  to  a  railway  com- 
pany as  relates  to  double  tracks  was  pre- 
sumptively a  reasonable  exercise  of  the 
police  power,  or  a  legislative  impairment 
of  the  contract  ordinance,  is  a  question 
which  the  Federal  Supreme  Court,  on  a 
writ  of  error  to  a  state  court,  must  decide 
for  itself,  independently  of  the  decisions  of 
the  state  court.  Grand  Trunk  W.  R.  Co. 
v.  South  Bend,  44:  405,  33  Sup.  Ct.  Rep.  303, 
227  U.  S.   544,  57  L.  ed.   633. 

322.  A  Federal  bankruptcy  court  is  not 
bound  by  the  decisions  of  the  courts  of  the 
state  in  which  it  is  sitting,  as  to  the  right 
of  one  whose  property  has  been  converted 
and  consumed,  to  waive  the  tort  and  sue 
in  contract  for  its  value.  Reynolds  v.  New 
York  Trust  Co.  39;  391,  188  Fed,  611,  110 
C.  C.  A.  409. 

323.  A  state  decision  that  an  insurance 
broker  acts  as  agent  for  the  insurer  in  pro- 
curing one  of  ■  two  policies  at  about  the 
same  time  from  companies  other  than  his 
own  is  not  binding  on  a  Federal  court  sit-" 
ting  in  the  same  state,  in  an  action  on  the 
other  policy.  Travelers  Ins.  Co.  v.  Thorne, 
38:  626,  180  Fed.  82,  103  C.  C.  A.  436. 

324.  A  single  decision  of  the  highest 
court  of  a  state  which  follows  no  line  of 
precedents  in  that  jurisdiction,  that  one 
piling  building  materials  in  a  street  owes 
no  duty  to  pile  them  so  as  to  avoid  injury 
to  children  of  tender  years  accustomed  to 
play  in  the  vicinity,  is  not  binding  on  a 
Federal  court  sitting  in  the  same  state,  in 
which  an  action  involving  such  question, 
and  growing  out  of  the  same  accident  as 
that  involved  in  the  case  in  which  such  de- 
cision was  made,  is  brought  on  the  ground 
of  diverse  citizenship,  after  discontinuance 
in  the  state  court  because  of  such  ruling. 
Snare  &  Triest  Co.  v.  Friedman,  40:  367, 
169  Fed.  1,  94  C.  C.  A.  369. 
Construction  of  state  statutes  or  Con- 
stitutions. 

325.  Tlie    construction    of    the    Constitu- 


COURTS-MARTIAL— COVENANTS   AND  CONDITIONS,  I. 


775 


ition  and  the  statutes  of  a  state  by  the  high- 
est judicial  tribunal  of  the  sfate  which  en- 
acted tliem  is  decisive  in  the  Federal  courts, 
in  the  absence  of  any  question  of  general  or 
■commercial  law  or  of  right  under  the  Consti- 
tution of  the  United  IStates;  and  their  in- 
terpretation by  the  courts  of  other  states 
is  immaterial.  Harrison  v.  Remington  Paper 
Co.  3:  954,  140  Fed.  385,  72  C.  C.  A.  405. 
Commercial  Iaw. 

326.  It  is  the  duty  which  the  Federal 
•courts  may  not  renounce  to  form  independ- 
ent opinions  and  render  independent  de- 
cisions upon  questions  of  commercial  or 
general  law  and  of  right  under  the  Consti- 
tution and  laws  of  the  nation  of  which 
they  have  jurisdiction,  and  tlie  decisions 
•of  the  state  courts  are  not  controlling,  but 
persuasive  thereon.  Guernsey  v.  Imperial 
Bank,  40:  377,  188  Fed.  300,  110  C.  C.  A. 
278. 

Damages. 

327.  The  Federal  courts,  in  administering 
a  local  statute  as  to  a  wrong  occurring  with- 
in the  borders  of  the  state,  involving  its  own 
citizens,  will  be  governed  in  the  measure  of 
damages  by  analogy  to  decisions  of  its  high- 
est court  under  similar  circumstances. 
Quinette  v.  Bisso,  5:  303,  136  Fed.  825,  69  C. 
€.  A.  503. 

328.  A  Federal  court,  in  determining  the 
■damages  which  can  be  assessed  under  a 
statute  allowing  compensatory  damages  for 
•a  wrongful  death,  will  follow  the  general 
law  applied  in  the  Federal  courts,  which 
excludes  all  consideration  of  matters  which 
rest  in  speculation,  conjecture,  or  fancy, 
although  the  courts  of  the  state  where  the 
statute  was  passed  may  permit  the  damages 
to  be  assessed  by  such  methods.  Swift  & 
Co.  V.  Johnson,  i:  1161,  138  Fed.  867,  71 
€.  C.  A.  619. 


-♦-•-♦- 


COUBTS-MARTIAI.. 

Review  of  proceedings  of,  by  certiorari,  see 
Certiorari,  6. 

Heview  of  action  of,  under  power  of  super- 
intending control,  see  Courts,  216. 

Habeas  corpus  to  secure  discharge  of  minor 
held  for  trial  by  court-martial  for  de- 
sertion from  Navy,  see  Habeas  Corpus, 
75. 

1.  A  militia  officer  of  a  state  cannot  be 
■dismissed  by  court-martial  in  time  of  peace, 
for  violation  of  the  Articles  of  War  of  the 
United  States,  since  such  Articles  are  not 
applicable  to  the  militia  at  that  time. 
State  ex  rel.  Poole  v.  Peake,  40:  354,  135 
N.  W.   197,  22  N.  D.  457.  (Annotated) 


COUSINS. 

Inheritance  by,  see  Descent  and  Distribu- 
tion, 3,  11. 
Insurable  interest  of,  see  Insurance,  78,  89. 
Digest  1-52  L.R.A.(N.S.) 


COVENANTS  AND  CONDITIONS. 

/.  In  general. 
II.  Construction;    validity;    effect,    1— 
34. 
a.  In  general,    1—20. 
h.  Encnmhrances      and      assess- 
ments. 

c.  Warranty,   21—25. 

d.  Restricting  use  or  disposition 

of  property,  26—34. 

III.  Performance;      breach;      enforce- 

ment;   xcho    liable,    35—121. 

a.  In    general,    35—53. 

b.  What     constitutes     a     breach; 

effect,    54— 8S. 

c.  Who  may  enforce,  89—105. 

1.  In  general,  89-98. 

2.  Covenants     running    with 

the   land,   99—105. 

d.  Who    liable    or    bound,    106— 

121. 

1.  In  general,    106—114. 

2.  Covenants     running     with 

the  land,  115-121. 

IV.  Running  with  the  land,  122—135. 
V.  Extinguishment    of,    or    discharge 

from,,  covenant,  136. 

I.  In  general. 

Binding  effect  of  conditions  of  sale  an- 
nounced by  auctioneer,  see  Auction,  5. 

By  copurchaser  of  timber  land,  see  Bank- 
ruptcy, 115. 

Conditions  of  equitable  relief  from  cloud 
on  title,  see  Cloud  on  Title,  III. 

Conflict  of  laws  as  to  covenants  for  title, 
see  Conflict  of  Laws,  63. 

Law  governing  obligation  of  covenant  for 
title,  see  Confict  of  Laws,  111. 

In  mining  lease,  see  Contracts,  135,  136. 

In  option  to  purchase  underlying  coal,  see 
Contracts,  168. 

Not  to  engage  in  business,  see  Contbacts, 
III,  e,  2. 

Power  of  railroad,  in  purchasing  right  of 
way,  to  bind  itself  by  condition  to  com- 
plete road,  see  Corporations,  62. 

In  lease  of  railroad,  not  to  raise  freight 
rates,  see  Corporations,  275. 

Revocability  of  deed  on  condition  as  to  time 
of  taking  effect,  see  Deeds,  96. 

As  to  dower  in  conditional  estate,  see 
Dower,  18. 

Ejectment  on  breach  of  condition  subsequent 
where  plaintiif  is  out  of  possession,  see 
Ejectment,  11. 

Right  to  compensation  of  grantor  in  con- 
veyance of  estate  upon  condition  where 
property  taken  for  public  use,  see  Emi- 
nent Domain,  251. 

Parol  evidence  of  condition,  see  Evidence, 
VI.  1. 

Sufficiency  of  pleading  to  admit  proof  of, 
see  Evidence,  2430. 

In  lease,  see  Landlord  and  Tenant,  II.  b. 

Merger  of  rights  under,  see  Merger,  2. 

In  oil  and  gas  lease,  see  Mines,  60. 

Condition  in  deed  as  to  assumption  of  mort- 
gage, see  Mortgage,  III.  ' 


(6 


COVENANTS  AND  CONDITIONS,  TI.  a. 


Rights  of  mortgagee  of  property  conveyed 
to  mortgagor  on  condition,  see  Mort- 
gages, 21. 

Pleading  in  action  on,  see  Pleading,  242, 
243. 

Notice  of,  from  record,  see  Records  and  Re- 
cording Laws,  III.  d. 

Necessity  of  seal  for  instrument  containing, 
see  Seal,  1. 

To  stop  trains  at  private  road,  see  Specific 
Peuformance,  25. 

Covenant  against  building  in  decree  for 
specific  performance,  see  Specific  Per- 
formance, 126. 

In  contract  for  sale  of  timber,  see  Timber, 
6-16. 

Question  whether  provision  in  deed  creates 
condition  or  trust,  see  Trusts,  17. 

Condition  of  right  to  rescind  land  contract, 
see  Vendor  and  Purchaser,  76. 

Conditions  in  wills,  see  Wills,  III.  g,  4. 

See  also  Deeds,  3. 

//.  Construction;  validity;  effect. 
a.  In  general. 

(See  also  Covenomt,  I.  a  in  Digest  L.R.A. 

1-70.) 

Covenants  running  with  the  land,  see  infra, 
IV. 

1.  A  sale  or  conveyance  of  the  prop- 
erty is  not  an  abandonment,  within  the 
meaning  of  a  clause  in  a  deed  that  the  prop- 
erty shall  revert  to  the  grantor  upon  its 
abandonment  by  tlie  grantee.  St.  Peter's 
Church  V.  Bragaw,  lo:  633,  56  S.  E.  688, 
144  N.  C.  126.  (Annotated) 

2.  A  covenant  made  by  a  grantee  of 
water  riglits  upon  certain  premises  to  con- 
vey siidicient  water  to  the  adjacent  resi- 
dence of  the  grantor  for  its  ample  use  and 
accommodation  should  be  construed  as  con- 
templating a  supply  from  the  springs  and 
brandies  which  were  the  subject-matter  of 
the  agieement,  instead  of  intending  that 
the  water  furnished  is  to  be  derived  from 
another  locality.  Atlanta,  K.  &  N.  R.  Co. 
V.  McKinnev,  6:  436,  53  S.  E.  701,  124  da. 
929. 

3.  Under  a  grant  of  the  second  story  of 
a  building,  the  covenants  requiring  the 
grantor  to  keep  the  first  story  in  order  and 
the  grantee  to  keep  the  second  story  in  re- 
pair, in  case  of  fire  "to  be  optional  with 
either  party  in  case  of  building,"  if  the 
grantor,  after  a  fire,  elects  to  restore  the 
first  story,  the  grantee  has  the  option  to 
restore  the  second  one.  Weaver  v.  Osborne, 
38:  706,  134  N.  W.  103,  154  Iowa,  10. 

( Annotated ) 
Covenant  or  condition. 
(See  also  Deeds,  page  lOO.'i,  column  1,  in 
Digest  L.R.A.  1-70.) 

4.  Words  seemingly  appropriate  to  a 
condition  only  may  introduce  a  covenant,  a 
condition,  or  a  declaration  of  triist;  and 
the  whole  clause,  in  its  form  and  scope, 
must  be  considered,  in  order  to  determine 
within  which  class  it  should  fall.  MacKen- 
Digest  1-52  I..R.A.(N.S.) 


zie  v.  Trustees  of  Presbyterv  of  Jersev  Citv, 
(N.  J.  Err.  &  App.)  3:  227,  61  Atl*.  1027, 
67  N.  J.  Eq.  652. 

5.  A  personal  covenant,  and  not  a  con- 
dition subsequent,  is  created  by  a  provision 
in  a  deed  that  the  deed  is  given  and  ac- 
cepted upon  the  express  condition  that  a 
house  shall  be  built  on  the  premises  within 
six  months,  and  that  such  agreement  is 
part  of  the  consideration  for  tlie  convey- 
ance. Hawley  v.  Kafitz,  3:  741,  83  Pac. 
248,   148   Cal.   393.  (vinnotated) 

6.  A  provision  in  a  deed  that  the  prop- 
erty shall  not  be  used  as  a  cemetery  is  not 
a  condition  subsequent,  breach  of  which  will 
work  a  forfeiture,  but  a  covenant,  the  ob- 
servance of  which  will  be  enforced  by  equity. 
St.  Peter's  Church  v.  Bragaw,  10:  633,  56 
S.  E.  688,  144  N.  C.  126. 

7.  A  condition  which  must  be  complied 
with  to  hold  the  property,  and  not  a  cove- 
nant, is  created  by  a  grant  of  a  right  of 
way  to  a  railroad  company  "on  condition" 
that  the  line  will  be  completed  within  a 
specified  time.  Oregon  R.  &  Nav.  Co.  v. 
McDonald,  32:  117,  112  Pac.  413,  :.8  Or.  228. 

( A:  notated) 

8.  A  condition  subsequent  is  not  created 
by  a  recital  in  a  deed  to  a  railroad  comiiany 
that  it  is  made  in  consideration  of  the  com- 
pany's agreement  to  erect  and  maintain  a 
depot  on  the  land  conveyed,  a  breach  of 
which  will  entitle  the  grantor  to  maintain 
ejectment,  but  merely  an  agreement  or  cove- 
nant on  the  part  of  the  grantee.  Shreve  v. 
Norfolk  &  W.  R.  Co.  23:  771,  64  S.  E.  972, 
109  Va.  706.  (Annotated) 

9.  A  recital  in  a  deed  of  land  that,  in 
consideration  of  it,  the  grantee  is  to  convey 
to  grantor  a  tract  of  land  and  build  certain 
structures  upon  it,  does  not  constitute  the 
estate  of  the  grantee  one  upon  condition, 
in  the  absence  of  an  express  reservation  of 
the  right  of  re-entry  in  the  grantor  upon 
the  grantee's  failure  to  perform  the  agree- 
ment. Braddy  v.  Elliott,  16:  1121,  60  S.  E. 
507,  146  N.  C.  578. 

10.  A  clause  in  a  conveyance  to  church 
trustees,  that  the  property  shall  be  held  by 
them  for  the  benefit  of  a  specified  religious 
society  on  various  conditions  as  to  tlie  con- 
tinuance of  the  corporate  name,  form  of 
worship,  denominational  connection  of  the 
society,  and  use  of  the  proceeds  of  the  prop- 
erty in  case  of  its  sale,  should,  in  the 
absence  of  words  of  determination  or  re- 
verter, be  construed  as  a  declaration  of 
trust,  rather  than  as  a  covenant  or  condi- 
tion, where  the  intention  of  the  parties,  to 
be  carried  out  as  permitted  by  the  principles 
of  law,  will  be  best  subserved  by  so  holding. 
MacKenzie  v.  Trustees  of  Presbytery  of 
Jersey  City  (N.  J.  Err.  &  A  pp.)  3:  227^ 
61  Atl.  1027,  67  N.  J.  Eq.  G.vi. 
Condition  precedent  or  subsequent. 
(See  also  Real  Property,  I.  a.  2,  in  Digest 

L.R.A.  1-70.) 
Condition  precedent  to  action  generally,  see 

Action  or  Suit,  I.  b. 
Cancelation   of   deeds   for   breach   of   condi- 
tion subsequent,  see  Contracts,  740. 


COVENANTS  AND  CONDITIONS,  II.  b. 


777 


Conditions  precedent  to  action  to  enforce 
stockholder's  liability,  see  Cobpoka- 
TiONS,  365-369. 

Retention  of  jurisdiction  in  suit  to  enjoin 
interference  with  enjoyment  of  prop- 
erty because  of  breach  of  conditions 
subsequent,  see  Equity,  109. 

Estoppel  to  enforce,  see  Estoppel,  145. 

In  lease,  see  Landlord  and  Tenant,  81. 

In  will,  see  Wills,  267-272. 

.See  also,  supra,  5,  6,  8;  infra,  40,  41,  89. 

11.  A  condition  in  a  deed  by  a  mother  to 
lier  son,  who  were  living  together  as  one 
family,  that  he  should  support  a  niece  who 
was  also  living  with  them,  and  pay  her  a 
sum  of  money  within  three  years  after  his 
.mother's  death,  is  not  a  condition  precedent 
so  as  to  prevent  the  delivery  of  the  deed  to 
a  stranger  to  be  delivered  to  the  son  at  the 
grantor's  death,  from  passing  title,  where 
the  grantor  had  not  informed  the  son  of 
the  condition  or  deed.  De  Conick  v.  De 
Conick,  22:  417,  117  N.  W.  570,  154  Mich. 
187. 

12.  A  covenant  by  a  lessor  of  a  farm  for 
a  year,  with  a  tenant  in  possession,  to  fence 
in  time  for  occupancy  by  the  lessee,  is  not 
a  condition  precedent  which  will  defeat  lia- 
bility for  rent,  although  the  tenant  loses  a 
portion  of  the  benefit  of  his  contract  by 
bread)  of  tlie  covenant.  Partridge  v.  Dy- 
kins,  34:  984,  113  Pac.   928,  28  Okla.  54. 

(Annotated) 

13.  A  provision  in  a  deed  to  a  railroad 
■company,  that  if  the  land  conveyed  ceases 
to  be  used  for  railroad  purposes  it  shall  re- 
vert to  the  grantors,  creates  a  condition 
subsequent,  a  breach  of  which  will  work  a 
forfeiture.  Moss  v.  Chappell,  11:  398,  54  S. 
E.  968,  126  Ga.  196. 

Implied  covenants. 

Single  action  for  breach  of,  see  Action  oe 

Suit,  90. 
Damages  for  breach  of,  see  Damages,  133, 

145,  146. 
On  sale  of  good  will  of  dental  business,  see 

Good  Will,  4. 
In  lease,  see  Laijdlord  and  Tenant,  II.  b, 

2. 
To   conduct   mining   operations   so   as   not 

to  damage  surface,  see  Mines,  42. 
To    remove    timber    or    minerals    conveyed 

within  reasonable  time,  see  Timber,  6, 

jB-10. 
As  to  titl6   in   land  contract,   see  Vendor 

AND  Purchaser,  I,  c. 

14.  A  conveyance  of  seven  eighths  of  the 
timber  and  minerals  on  a  tract  of  land,  in 
consideration  of  the  delivery  of  the  other 
■eighth  to  the  owner,  contains  the  implied 
condition  that  operations  for  their  removal 
shall  be  begun  within  a  reasonable  time, 
although  t'l  .>  property  is  located  in  a 
mountainous  region  without  access  to  mar- 
ket, if,  at  the  time  the  deed  is  made,  a  rail- 
road is  projected  to  run  in  the  vicinity  of 
the  property,  although  it  was  not  built  un- 
til many  years  afterward.  Eastern  Ken- 
tucky Mineral  &  Timber  Co.  v.  Swann-Day 
Lumber  Co.  46:  672,  146  S.  W.  438,  148  Ky. 
■82. 

Digest   1-52  I,.R.A.(N.S.) 


15.  Tlie  omission  from  a  conveyance  of 
the  timber  and  minerals  on  a  tract  of  land, 
of  a  stipulation  as  to  when  development 
operations  shall  begin,  or  of  a  condition  re- 
serving the  right  of  re-entry  for  inaction, 
will  not  prevent  the  enforcement  of  inipliv  1 
conditions  that  they  siiall  be  begun  within 
a  reasonable  time.  Eastern  Kentucky  Min-- 
eral  &  Timber  Co.  v.  Swann-Day  Lumber 
Co.  46:  672,  146  S.  W.  438,  148  Ky.  82. 

(Annotated) 

16.  The  platting  of  a  tract  of  land  into 
streets  and  lots  of  a  certain  size,  and  the 
sale  of  lots  according  to  the  plat,  do  not 
imply  a  covenant  that  the  size  of  remain- 
ing lots  shall  not  be  changed.  Herold  v. 
Columbia  Invest.  &  Real  Estate  Co.  (N.  J. 
Err.  &  App.)  14:  1067,  67  Atl.  607,  72  N.  J. 
Eq.  857. 

17.  Merely  describing  property  sold  as 
bounded  by  an  alley  does  not  constitute  a 
warranty  that  the  alley  exists,  if  the  grant- 
or does  not  own  the  land  on  which  It  is 
supposed  to  be  located.  Fulmer  v.  Bates, 
10:964,  102  S.  W.  900,  118  Tenn.  731. 

(Annotated) 

18.  To  raise  an  implied  covenant  on  the 
part  of  a  grantor  of  land  by  deed  referring 
to  a  plat  for  description,  that  an  open 
square  on  the  plat  shall  remain  a  public 
park,  it  must  be  clearly  shown  that  the 
plat  refened  to  had  the  square  designated 
upon  it  as  a  public  park.  Canton  Co.  v. 
Baltimore,  11:  129,  66  Atl.  679,  106  Md.  69. 

19.  A  covenant  running  with  the  land 
and  passing  a  private  right  of  way  along 
the  alleged  alley  will  be  implied  from  a 
conveyance  of  a  parcel  of  land,  and,  in  con- 
nection therewith,  a  right  of  way  to  an  "al- 
ley" described  as  existing  on  remaining  land 
of  the  grantor,  and  necessary  to  give  access 
from  the  rear  of  the  granted  premises  to 
the  street.  Talbert  v.  Mason,  14:  878,  113 
N.  W.  918,  136  Iowa,  373.  (Annotated) 
To  stand  seised  to  uses. 

See  also  Trusts,  31. 

20.  An  agreement  in  writing  executed, 
acknowledged,  and  recorded  as  a  deed,  be- 
tween four  sisters  who  are  tenants  in  com- 
mon of  real  estate,  that  the  title  shall  vest 
in  the  survivors  as  each  one  dies,  is  valid  as 
a  covenant  to  stand  seised  to  uses,  and  will 
vest  the  fee  title  in  the  sole  survivor  of 
them.  Murray  v.  Kerney,  38:  937,  81  Atl. 
6,   115  Md.   514.  (Annotated) 

6.  Encumbrances  and  assessments. 

(See  also  Covenant,  page  885,  column  1,  in 
Digest  L.R.A.  1-10.) 

Waiver  of  breach,  see  infra,  44. 

What  constitutes  a  breach,  see  infra,  56, 
58-61,  63-65,  67. 

Effect  of  breach,  see  infra,  85,  86. 

Measure  of  damages  for  breach,  see  Dam- 
ages, 143,  708. 

In  contract  for  sale  of  land,  see  Vendor  and 
Pubch.\ser,  32,  33,  53-55. 


COVENANTS  AND  CONDITIONS,  II.  c,  d. 


o.  Warranty. 

YSee  also  Covenant,  page  885,  column  1,  in 
Digest  L.K.A.  1-70.) 

Breach  of  generally,  see  infra,  35-39. 

What  constitutes  a  breach,  see  infra,  54,  55, 
57,   62,   66,   69-71. 

Who  may  enforce,  see  infra.  III.  c,  2. 

When  right  of  action  for  breach  accrues, 
see  Action  ok  Suit,  19. 

Power  of  broker  to  bind  grantor  to  execute, 
see  Brokeks,  7. 

Law  governing  obligation  of,  see  Conflict 
OF  Laws,  111. 

Of  one  of  two  cotenants,  see  Cotenawoy,  19. 

Measure  of  damages  for  breach,  see  Dam- 
ages, 133-142. 

Implied  reservation  of  easement  in  case  of 
grant  with  covenant  of  warranty,  see 
Easements,  41. 

EflFect  of  covenant  of  warranty  on  convey- 
ance of  portion  of  property,  on  right 
to  easement  of  access  to  remainder,  see 
Easements,  96. 

Estoppel  by,  see  Estoppel,  II.  a. 

Sufficiency  of  evidence  of  exception  from, 
see  Evidence,  2258. 

Conclusiveness  against  covenantor  of  decree 
establishing  paramount  title  against 
purchaser,  see  Judgment,  250. 

Reliance    by   purchaser   of    land   subject   to 

•'       lease  upon  warranty  in  deed  of  former 

''     owner,  see  Vendou  and  Purchaser,  84. 

21.  A  warranty  of  title  by  heirs  appar- 
ent, who  attempt  to  convey  their  interest 
in  their  ancestor's  estate  during  his  life- 
time, will  not  operate  when  they  become  pos- 
sessed of  the  property,  since  the  contract 
is  void.  Spears  v.  Spaw,  25:  436,  118  S.  W. 
275,  -    Ky.  — . 

22.  The  futiu-e  interest  which  a  son  ac- 
quires in  consequence  of  the  remarriage  of 
his  mother,  under  a  statute  prohibiting  a 
widow,  after  her  second  marriage,  from  sell- 
ing or  conveying  her  interest  in  her  prior 
husban<''s  real  estate,  and  providing  that, 
at  her  dea*;h,  the  title  shall  vest  in  her 
children  by  her  former  husband,  passes  by 
way  of  estoppel  under  a  warranty  deed 
executed  b>  the  mother  and  son  which  pur- 
ports to  convey  all  the  interest  by  right  of 
inheritance  which  the  grantors  acquired 
from  the  husband's  estate,  and  contains  re- 
citals, following  the  granting  clause,  to  the 
effect  that  the  interest  conveyed  by  the  son 
is  the  two-ninths  interest  which  he  inherited 
directly  from  his  father's  estate,  and  any 
other  interest  which  might  accrue  to  him 
after  the  death  of  his  mother  in  consequence 
of  her  second  marriage.  McAdams  v.  Bailey, 
13:  1003,  82  N.  E.  1057, -169  Ind.  518. 

(Annotated) 
,,  23.  A  covenant  in  a  deed,  warranting 
generally  the  title  to  the  land  conveyed, 
passes  to  the  covenantee,  by  estoppel,  a  pre- 
existing outstanding  title  subsequently  ac- 
quired by  the  covenantor.  Blake  v.  O'Neal, 
16:  H47,  61  S.  E.  410,  63  W.  Va.  483. 

24.  A  right  of  way  for  a  sewer,  secured 
by  the  exercise  of  the  power  of  eminent  do- 
Digest  1-52  L.R.A.(N.S.) 


main,  is  not  secured  tlirough  or  under  the 
owner  of  the  property,  witliin  the  meaning 
of  a  covenant  in  a  deed  by  liini  of  the  re- 
maining property,  warranting  the  title 
against  the  claims  of  all  persons  claiming 
by,  through,  or  under  the  grantor.  Weeks 
V.  Grace,  9:  1092,  80  N.  E.  220,  194  Mass. 
296.  (Annotated) 

25.  A  grantor  is  not,  under  his  covenant 
to  warrant  and  defend  title  against  all 
lawful  claims,  liable  for  costs  of  a  success- 
ful defense  against  an  attempt  by  a  stran- 
ger to  establish  a  lien  on  tlie  property. 
Hoffman  y.  Dickson,  39:  67,  118  Pac.  737, 
65  Waah.  566.  (Annotated) 

d.  Restricting    use    or    disposition    of 
property. 

(See  also  Covenant,  I.  b,  in  Digest  L.R.A. 
1-10.) 

Waiver  of  breach  or  loss  of  right  to  en- 
force, see  infra,  45-51. 

Who  may  enforce,  see  infra,  91-98, 

Who  liable  or  bound,  see  infra,  106,  109- 
111,  114. 

Conditional  fee,  see  DEBa)s,  77,  78. 

26.  When  the  Governor,  in  the  exercise 
of  authority  expressly  conferred  upon  him 
by  statute,  grants  to  a  municipality  "all  the 
interest  of  the  state"  in  lands  which  it  owns 
in  fee,  to  be  used  for  streets  and  other  pur- 
poses, the  municipality,  reserving  the  right 
to  use  the  same  for  street  purposes  with- 
out compensation,  may  execute  a  valid  lease 
of  such  lands  to  a  railroad  company  for  its 
general  purposes.  Cleveland  Terminal  &  V. 
R.  Co.  V.  State  ex  rel.  Ellis,  39:  12 19,  97  N. 
E.  967,  85  Ohio  St.  251. 

27.  The  incorporation  of  a  water-lot 
company  with  power  to  purchase,  hold,  and 
convey  property,  with  a  provision  that  the 
death  of  one  or  more  of  the  directors  or 
parties  in  interest  shall  not  prevent  or  de- 
lay a  sale  of  the  lots,  or  any  of  them,  or 
"an  interest  therein,"  does  not  prevent  the 
insertion,  in  deeds  of  some  of  the  lots,  of 
restrictive  covenants  as  to  the  amount  of 
water  or  power  to  be  used  by  the  grantees 
respectively.  Muscogee  Mfg.  Co.  v.  Eagle 
&  Phenix  Mills,  7:  1139,  54  S.  E.  1028,  126 
Ga.  210. 

As    to   building. 

Waiver  of  breach,  see  infra,  45-51,  53. 

What  constitutes  a  breach,  see  infra,  72- 
84. 

Who  may  enforce,  see  infra,  92,  93,  96-98. 

Who  liable  or  bound,  see  infra,  109,  110. 

Notice  of  restrictions  at  auction  sale,  see 
Auctions,  6-8. 

Police  power  as  justification  for  violation 
of,  see  Constitutional  Law,  643. 

Oral  statements  by  grantor  as  to  restric- 
tions on  other  lots  in  tract,  see  CON- 
tbacts,  267,  322. 

Power  of  executor  to  insert  in  deed,  see 
Executors  and  Administrators,  57. 

28.  A  covenant  in  conveyances  of  lots  in 
a  fine  residential  district  in  a  city,  restrict- 
ing the  buildings  to  be  placed  thereon  to 
dwellings  and  the  outbuildings  appurtenant 


COVENANTS  AND  CONDITIONS,  III.  a. 


779 


thereto,    is    not    invalid    as    against    public 

policy.     Riverbank  Improv.  Co.  v.  Bancroft, 

34:  730,  95  N.  E.  216,  209  Mass.  217. 

Sale  of  liquors. 

In  lease,  see  Contracts,  134. 

See  also  infra,  126. 

29.  A  condition  in  deeds  by  the  founder 
of  a  town  that  no  alcoholic  beverages  shall 
be  sold  on  the  granted  premises  under  pen- 
aky  of  forfeiture,  for  the  purpose  of  secur- 
ing a  monopoly  of  the  business  to  himself, 
is  void  as  against  public  policj\  Burdell 
V.  Grandi,  14:  909,  92  Pac.  1022,  152  Cal.  376. 

(Annotated) 

30.  Tlie  owner  of  a  town  site  may,  in  the 
sale  of  lots,  insert  covenants  in  the  deeds 
by  which  the  right  to  sell  intoxicating  li- 
quors therein  is  restricted  to  himself  or  his 
licensees.  Whealkate  Min.  Co.  v.  Mulari, 
18:  147,  116  N.  W.  360,  152  Mich.  607. 
Restraints   upon  alienation. 

In  charitable  gifts,  see  Charities. 
Suspension  of  power  of  alienation,  see  Per- 
petuities, III. 

31.  A  covenant  in  a  deed  conveying  an 
absolute  title,  which  limits  the  power  of 
alienation,  is  void.  Deepwater  R.  Co.  v. 
Honaker,  27:  388,  66  S.  E.  104,  66  W.  Va. 
136. 

32.  A  condition  forbidding  alienation  for 
five  years,  annexed  to  a  conveyance  in  fee 
simple,  is  void.  Latimer  v.  Waddell,  3: 
668,  26  S.  E.  122,  119  N.  C.  370. 

( Annotated ) 

33.  A  condition  in  a  deed  conveying  a 
fee-simple  estate,  that  it  shall  not  be  di- 
vided or  disposed  of  until  the  grantees  shall 
reach  a  certain  age,  is  void  as  in  conflict 
with  the  grant.  Christmas  v.  Winston,  27: 
1084,  67  S.  E.  53,  152  N.  C.  48. 

34.  A  limitation  upon  the  power  of 
alienation  may  be  imposed  upon  a  grant  of 
a  fee  in  trust  for  a  married  woman.  Hauser 
V.  St.  Louis,  28:  426,  170  Fed.  906,  96  C. 
C.  A.  82.  (Annotated) 

III.  Performance;      breach;      enforce- 
ment; who  liable. 

a.  In  general. 

(See  also  Covenant,  II.  a,  in  Digest  L.R.A. 
1-10.) 

Abatement,  by  death  of  grantor,  of  right 
to  rescind  deed  for  breach  of  covenant, 
see  Abatement  and  Revival,  7. 

When  right  of  action  for  breach  accrues, 
see  Action  or  Suit,  19. 

Nature  of  suit  to  prevent  violation  of,  see 
Action  ok  Suit,  58. 

Single  action  for  breach  of,  see  Action  oe 
Suit,  90. 

Police  power  as  justification  for  violation 
of,  see  Constitutional  Law,  643. 

Breach  of  condition  in  pardon,  see  Ceiminal 
Law,  306-314. 

Measure  of  damages  for  breach,  see  Dam- 
ages, 102,  131-143,  145-150,  689,  708, 
709. 

Mitigation  of  damages,  see  Damages,  713. 

Digest  1-52  Ii.B,.A.(N.S.) 


Relief  in  equity  from  forfeiture  for  non- 
performance of,  see  Forfeiture,  1,  2. 

Injunction  against  breach  of,  see  Injunc- 
tion, 24,  80-85. 

Right  of  landlord  to  shut  off  heat  because 
of-  breach  of  covenant  as  to  rent,  see 
Injunction,  88. 

Claim  for  damages  for  breach  of,  as  ground 
for  injunction  against  transfer  of  prop- 
erty, see  Injunction,  262. 

When  statute  of  limitations  begins  to  run, 
see  Limitation  of  Actions,  189-193. 

When  action  is  barred,  see  Limitation  of 
Actions,  257. 

Forfeiture  for  breach  of  condition  in  oil  or 
gas  lease,  see  Mines,  77-83. 

Parses  defendant  in  suit  to  enjoin  viola- 
tion, see  Parties,  191. 

Effect  of  failure  to  prove  lex  loci  in  action 
for  breach,  see  Pleading,  63. 

Sufficiency  of  answer  in  action  to  defeat 
enforcement,  see  Pleading,  519. 

Performance  of  condition  precedent  to 
surety's  liability,  see  Principal  and 
Surety,  1-3. 

Performance  of  condition  to  delivery  of 
bond,  see  Principal  and  Surety,  7-11. 

Specific  performance  of,  see  Specific  Per- 
formance, 25,  110. 

Specific  performance  of  contract  for  recon- 
veyance where  restrictive  conditions 
broken,  see  Specific  Performance,  112. 

Rescission  for  breach  of  vendor's  covenants, 
see  Vendor  and  Purchaser,  I.  e. 

Abatement  from  purchase  price  because  of 
breach  of  covenant,  see  Vendor  and 
Purchaser,  29-31. 

Venue  of  action  for  breach,  see  Venue,  6. 

Right  to  demand  reconveyance  for  breach  of 
condition  as  passing  by  will,  see  Wills, 
188.  . 

Right  to  dispose  by  will  of  contingent  right 
to  re-enter  for  condition  broken,  see 
Wills,  192. 

35.  That  the  grantee  in  a  general  war- 
ranty deed  had  knowledge  at  the  time  of 
the  conveyance  of  a  superior  claim  to  part 
of  the  land  conveyed  to  him  will  not  de- 
bar him  from  compensation  for  the  par- 
ticular land  lost  to  him  under  such  claim. 
Smith  V.  Ward,  33:  1030,  66  S.  E.  234,  66 
W.  Va.  190. 

36.  Liability  for  breach  of  covenant 
of  seisin  of  the  plumbers'  fixtures  in  a 
building  is  not  affected  by  the  fact  of  con- 
structive notice  to  the  purchaser  through 
the  record  of  the  conditional  contract,  by 
which  title  to  the  fixtures  was  reserved  to 
the  materialman.  Herzog  v.  Marx,  35:  976, 
94  N.  E.  1063,  202  N,  Y.  1. 

37.  Knowledge  by  a  purchaser  of  real 
estate  of  an  unexpii'ed  lease  of  the  property 
will  not  prevent  his  maintaining  an  ac- 
tion for  breach  of  covenant  because  of  such 
lease.  Browne  v.  Taylor,  4:  309,  88  S.  W. 
933,  115  Tenn.  1.  (Annotated) 

38.  A  grantor  of  land  with  general  cov- 
enant of  warranty  is  not  relieved  from 
liability  in  case  of  eviction  of  the  grantee 
under  a  mortgage  foreclosure,  by  the  fact 
that  the  mortgage  existed  on  the  property 


780 


COVENANTS  AND  CONDITIONS,  III.  a. 


■when  he  secured  his  title,  so  that  the  en- 
cumbrance was  not  his  act.  Williams  v. 
O'Donnell,  26:  1094,  74  Atl.  205,  225  Pa. 
321. 

39.  One  is  not  relieved  from  liability  on 
a  general  covenant  of  warranty  in  a  deed 
which  he  executes  in  conjunction  with  the 
other  owners,  by  the  fact  that  he  had  only 
an  undivided  interest  in  the  property  at 
the  time  of  the  convevance.  Williams  v. 
O'Donnell,  26:  1094,  74  Atl.  205,  225  Pa. 
321. 

Re-entry. 

See  also  supra,  9. 

40.  If  a  grantee  in  a  deed  containing  a 
condition  subsequent  that,  when  the  land 
conveyed  shall  cease  to  be  used  for  railfoad 
purposes  it  shall  revert,  divides  the  land 
and  devotes  one  portion  of  it  to  other  pur- 
poses, there  is  a  breach  of  the  condition  as 
to  the  portion  so  used;  nor  can  the  grantee 
or  those  claiming  under  him  defeat  the 
right  of  the  grantor  to  enter,  merely  upon 
the  ground  that  the  condition  in  the  deed 
did  not  provide  that  the  land  should  revert 
if  any  or  a  portion  of  it  should  no  longer 

'be   used    for    railroad     purposes.       Moss     v. 
Chappell.  11:  398,  54  S.  E.  968,  126  Ga.  196. 

41.  The  grantor  in  a  deed  containing  a 
condition  subsequent  is  not  revested  with 
the  title  upon  breach  of  the  condition,  but 
he  must  make  an  entry,  if  he  can  peace- 
ably do  so,  or  assert  his  right  to  enter  by 
an  action  against  the  grantee  and  those 
claiming  under  him,  for  the  recovery  of  the 
possession  of  the  land.  Moss  v.  Chappell, 
11:  398,  54  S.  E.  968,  126  Ga.  196. 

42.  Neither  re-entry  nor  declaration  of 
forfeiture  is  necessary  to  terminate  a  con- 
ditional estate,  where  the  common-law  doc- 
trine of  livery  of  seisin  is  abolished  by  a 
statute  authorizing  the  conveyance  of  land 
whether  held  in  possession  or  not,  and  such 
conditional  estate  may  therefore  be  termi- 
nated by  a  subsequent  deed  to  a  stranger 
executed  by  the  conditional  grantor.  Moore 
V.  Sharpe,  23:  937,  121  S.  W.  341,  91  Ark. 
407.  (Annotated) 
"Waiver  of  breach;  loss  of  right  to  en- 
force. 

Laches  in  suing  for  violation  of  covenant, 
see  Limitation  of  Actions,  22. 

43.  A  waiver  of  a  forfeiture  resulting 
from  the  breach  of  a  condition  subsequent  in 
a  deed,  in  favor  of  a  named  person  and  for 
a  stated  purpose,  is  limited  to  the  terms  of 
the  waiver,  and  does  not  destroy  the  condi- 
tion altogether.  Moss  v.  Chappell,  11:  398, 
64  S.  E.  968,  126  Ga.  196.  (Annotated) 

44.  A  grantee  of  land  encumbered  by 
mortgage  does  not,  by  failure  to  sue  for 
breach  of  the  covenant  against  encum- 
brances, waive  his  right  of  action  upon  a 
covenant  against  eviction  which  may  sub- 
sequently result  from  enforcement  of  the 
encumbrance.  Williams  v.  O'Donnell,  26: 
1094,  74  Atl.  205,  225  Pa.  321. 

( Annotated ) 
4.5.  A  delay  of  ten  weeks  in  brinf^ing 
suit  to  enjoin  the  maintenance  of  a  building 
erected  in  violation  of  a  restnictive  cove- 
nant in  the  use  of  the  land,  after  the  build- 
Digest   1-52  L.R.A.(N.S.) 


ing  was  erected,  and  knowledge  was  brought 
home  to  the  complaining  party,  is  not  such 
laches  as  will  bar  relief,  if  no  prejudice  to 
the  rights  of  the  owner  of  the  building 
through  the  delav  is  shown.  Stewart  v. 
Finkelstone,  28:  634,  92  N.  E.  37,  206  Mass. 
28. 

46.  Tliat  no  steps  were  taken  to  prevent 
the  erection  of  a  building  in  violation  of  a 
restrictive  covenant  upon  tlie  use  of  the 
land  until  it  was  all  up  will  not  defeat  an 
injunction  against  its  maintenance,  if  tlie 
complaining  parties  did  not  know  of  tlie 
violation  of  the  covenant  until  tiie  building 
was  completed.  Stewart  v.  Finkelstone,  28: 
634,  92  N.  E.  37,  206  Mass.  28. 

47.  A  condition  restricting  buildings  in 
a  platted  track  of  land  is  not  waived  as 
to  one  block  in  the  tract,  by  permitting 
without  protest  the  erection  of  one  build- 
ing in  another  block  which  violates  the  con- 
dition, if  it  is  so  far  distant  that  it  does 
not  affect  or  change  the  general  character 
of  the  block  or  neighborhood  as  to  which 
waiver  is  claimed.  Schadt  v.  Brill,  45:  726, 
139  N.  W.  878,  173  Mich.  647. 

48.  The  restraint  of  substantial  infrac- 
tion of  wholesome  building  covenants  will 
not  be  denied  because  of  possible  sliglit  in- 
fractions on  the  part  of  complainant,  with 
respect  to  his  own  property,  where  his 
building  has  stood  for  more  than  forty 
years,  and  has  been  considered  by  all  parties 
as  a  compliance  with  the  restrictions.  Stew- 
art V.  Finkelstone,  28:  634,  92  N.  E.  37,  206 
Mass.  28. 

49.  The  right  of  a  grantor  who  platted 
certain  land  and  sold  and  conveyed  the 
lots  by  deeds  containing  covenants  restrict- 
ing the  buildings  thereon  to  one  dwelling 
house  on  each  lot,  in  pursuance  of  a  gen- 
eral or  neighborhood  scheme,  to  enforce 
such  a  covenant  against  a  purchaser  with 
notice  from  his  grantee,  so  as  to  prevent 
such  purchaser  from  erecting  a  garage  on 
his  lot  in  the  place  provided  for  a  dwelling 
house,  is  not  defeated  by  the  fact  that  ex- 
press permission  was  given  in  connection 
with  the  restriction  as  to  dwelling  houses, 
in  the  sale  of  certain  other  lots,  to  erect 
necessary  or  appropriate  outbuildings,  and 
in  still  other  instances,  the  restrictive  cov- 
enant was  disregarded  and  garages  erected 
at  the  rear  of  the  dwelling  house  on  the 
lot,  in  a  manner,  however,  not  destroying 
the  essential  mutual  benefit  enjoyed  by  the 
lot  owners  from  the  general  scheme,  nor 
the  benefit  to  the  grantor's  remaining  prop- 
erty, to  be  derived  from  performance  of  the 
covenants  of  the  general  scheme  as  so  modi- 
fied. Sanford  v.  Keer  (N.  J.  Err.  &  App.), 
40:  1090.  83  Atl.  225.  80  N.  J.  Eq.  240. 

50.  The  mere  fact  that  in  a  city  sub- 
division consisting  of  several  blocks  there 
have  been  two  violations  of  a  covenant 
establishing  a  building  line,  one  of  which 
is  on  a  lot  adjoining  that  of  a  complaining 
owner,  does  not  show  that  the  covenant  has 
been  generally  abandoned,  or  that  complain- 
ant has  estopped  himself  from  complaining 
of  additional  violations  by  standing  by  and 
witnessing  violations  of  the  covenant  with- 


COVENANTS  AND  CONDITIONS,  III.  b. 


781 


out  objection.     O'Gallagher  v.  Lockhart,  52: 
1044,  105  N.  E.  295,  263  111.  489. 

51.  Tliat  the  owners  of  three  out  of 
forty-four  dwellings  on  a  street,  all  subject 
to  a  common  restriction,  have  violated  their 
covenants  not  to  use  the  buildings  for  other 
tli.an  private  residences,  by  letting  rooms 
and  furnisliing  meals  at  various  times 
witliout  giving  public  notice  thereof,  does 
not  show  such  a  change  in  tlie  neighbor- 
hood as  to  avoid  the  restriction  in  favor  of 
the  owner  of  another  house.  Savles  v. 
Hall,  41:  625,  96  N.  E.  712,  210  Mass.  281. 

52.  The  court  will  not  refuse  to  enforce 
a  restriction  upon  the  use  of  properly  for 
the  purpose  of  keeping  it  as  residential 
property,  in  the  absence  of  any  material 
change  in  conditions  directly  afl'ecting  the 
character  and  use  of  the  property,  notwith- 
standing indications  that  the  property  will, 
in  the  future,  be  of  greater  value  for  busi- 
ness, than  ior  residential,  purposes.  Evans 
v.  Foss,  9:  1039,  80  N.  E.  587,  194  Mass.  513. 

53.  If  changes  from  the  building  restric- 
tions imposed  upon  lots  in  a  subdivision, 
which  afl'ect  only  the  buildings  at  corners 
of  streets,  are  not  of  sufficient  moment  to 
interfere  with  the  scheme  as  a  whole,  the 
owner  of  a  particular  lot  cannot  ignore  the 
restrictions,  under  the  rule  of  changed  con- 
ditions. Stewart  v.  Finkelstone,  28:  634, 
92  N.  E.  37,  206  Mass.  28. 

■b.  What  constitutes  a  breach;  effect. 

(See  also  Covenant,  II.  6,  in  Digest  L.R.A. 
1-70. J 

Easement  for  irrigation  ditch  as  breach  of 
covenant  against  encumbrances,  see  also 
Vendor  and  PrRCHASEB,  11. 

What  constitutes  breach,  justifying  abate- 
ment from  purchase  price,  see  Vendor 
AND  Purchaser,  30. 

Existence  of  highway  easement  as  breach  of 
'  covenant  against  encumbrances,  see 
Vendor  and  Purchaser,  52. 

54.  A  shortage  in  a  sale  of  an  eighth  of 
a  section  of  land  of  less  than  4  acres  from 
the  amoimt  which  the  subdivision  should 
have  contained  does  not  breach  a  covenant 
of  seisin,  where  the  tract  sold  is  inclosed 
by  fences,  which  were  pointed  out,  and  the 
shortage  is  caused  by  mistake  in  locating  a 
fence  which  had  stood  during  the  limitation 
period.  Veltmans  v.  Kurtz,  36:  558,  132  N. 
W.    1009,   167   Mich.   412. 

55.  A  covenant  of  seisin  with  power  to 
convey  in  a  deed  of  real  estate  of  all  the 
premises  "with  the  tenements,  heredita- 
ments and  appurtenances  thereto  belong- 
ing," will  render  the  grantor  liable  for  the 
value  of  plumbers'  fixtures  which  have 
been  annexed  to  the  property  under  a  con- 
ditional sale  contract  properly  recorded,  re- 
serving title  in  the  vendor,  in  case  the  pur- 
chaser is  compelled  to  pay  for  them  to  pre- 
sent their  removal  from  the  property. 
Herzog  v.  Marx,  35:  976,  94  N.  E.  1063,  202 
N.  Y.    1.  (Annotated) 

56.  A  covenant  against  encumbrances  is 
Digest  1-52  L.R.A.(N.S.) 


one  in  prcEscnti,  and  is  broken  by  the  ex- 
istence at  the  time  of  executing  the  deed, 
of  a  continuing  right  of  way  over  the  land 
granted,  in  favor  of  a  third  person.  Smith- 
V.  White,  48:  623,  78  S,  E.  378,  71  W.  Va. 
639. 

57.  A  covenant  of  general  warranty  of 
title  is  not  broken  by  the  existence  of  a 
visible  easement  upon  the  portion  of  land 
granted,  consisting  of  a  right  to  maintain 
a  mill  pond  upon  it.  Bennett  v.  Booth,  39: 
6i3,  73  S.  E.  909,  70  W.  Va.  264. 

58.  The  existence  of  a  right  of  way  for 
a  drainage  ditch  which  has  been  laid  out 
but  not  constructed  across  a  farm  is  not  a 
breach  of  covenant  against  encumbrances  in 
a  deed  thereof,  although  several , acres  of  the 
farm  are  appropriated  in  the  construction 
of  the  ditch.  Stuhr  v.  Buttcrfield,  36:  321^ 
130  N.  W.  897,  151  Iowa,  736. 

59.  An  easement  for  a  public  sewer  laid 
5  feet  beneath  the  surface  of  a  city  lot  is 
not  within  a  covenant  against  encumbrances 
in  a  deed  of  the  property.  First  Unitarian 
Soc.  v.  Citizens'  Sav.  &  T.  Co.  51 :  428,  142 
N.  W.  87,  162  Iowa,  389.  (Annotated) 

60.  An  easement  and  right  of  way 
across  a  tract  of  land,  for  the  purpose  of 
maintaining  and  operating  an  irrigation' 
canal  for  the  reclamation  of  arid  land, 
which  was  established  by  statute  before  the- 
land  was  granted  by  the  government,  is  not 
a  breach  of  a  covenant  in  a  deed  or  con- 
tract of  sale  against  encumbrances.  Schur- 
ger  V.  Moorman,  36:  313,  117  Pac.  122,  20 
Idaho,  97.  (Annotated) 

61.  One  taking  and  reclaiming  arid  gov 
ernment  land  is  bound  to  take  notice  of 
Federal  and  local  statutes  granting  rights 
of  way  for  irrigation  ditches  across  it. 
Schurger  v.  Moorman,  36:  313,  117  Pac.  122, 
20  Idaho,  97. 

62.  A  levee  legally  erected  and  main- 
tained by  public  authorities  across  a  tract 
of  land,  and  which  a  purchaser  of  the  land 
sees  or  has  an  opportunity  to  see  at  the 
time  of  his  purchase,  is  not,  although  it 
renders  several  acres  unfit  for  cultivation 
by  holding  back  surface  water  thereon,  a 
breach  of  the  usual  covenants  of  warranty 
in  the  deed.  Ireton  v.  Thomas,  32:  737,  113 
Pac.  306,  84  Kan.  70.  (Annotated) 

63.  The  existence  of  a  railroad  in  a 
street,  damages  for  the  construction  of 
whicli  to  the  property  conveyed  have  been  ' 
released  by  the  grantor,  is  a  breach  of  cove- 
nant against  encumbrances  in  a  grant  of 
property  abutting  on  the  street,  although 
the  deed  purports  to  convey  only  to  the 
line  of  the  street.  Tuskegee  Land  &  Secur. 
Co.  v.  Birmingham  Realty  Co.  23:  992,  49 
So.  378,  161  Ala.  542. 

64.  The  existence  of  an  easement  for  a 
railroad  which  is  in  actual  operation,  across 
granted  property,  is  not  a  breach  of  a  cove- 
nant against  encumbrances  in  the  deed, 
since  the  purchaser  was  bound  to  take  no- 
tice of  its  existence.  Goodman  v.  Heilig, 
36:  1004,  72  S.  E.  866,  157  N.  C.  6. 

65.  The  legal  existence  of  a  railroad 
right  of  way  and  of  the  roadbed  and  track 
upon  real  estate  at  the  time  it  is  conveyed 


rs2 


COVENANTS  AND  CONDITIONS,  III.  b. 


by  a  deed  in  which  the  grantors  bind 
"themselves  and  their  heirs,  executors,  and 
admijiistrators,  to  warrant  and  forever  de- 
fend the  title  to  said  premises  unto  the  said 
party  of  the  second  part,  its  heirs,  suc- 
cessors, and  assigns,  against  the  said  par- 
ties of  the  first  part  and  their  heirs,  execu- 
tors, and  administrators,  and  against  all 
persons  whomsoever  lawfully  or  equitably 
claiming,  or  to  claim,  the  same,"  does  not 
give  the  grantee  in  the  deed  a  right  of  ac- 
tion for  damages  against  the  grantor,  be- 
cause of  the  existence  of  the  said  right  of 
way,  roadbed,  and  track.  Van  Ness  v. 
Royal  Phosphate  Co.  30:  833,  53  So.  381, 
60  Fla.  284.  (Annotated) 

66.  No  breach  of  covenant  of  seisin  or 
right  to  convey  is  shown  b\^  the  existence 
of  a  railroad  in  the  abutting  street,  where 
the  deed  conveys  only  to  the  edge  of  the 
street.  Tuskegee  Land  &  Secur.  Co.  v.  Bir- 
mingham Realty  Co.  23:  992,  49  So.  378,  161 
Ala.  542. 

67.  Under  a  constitutional  provision 
that  the  proprietary  rights  of  a  property 
owner  shall  not  be  devested  by  an  eminent 
domain  proceeding  until  compensation  has 
been  paid,  the  mere  pendency  of  a  petition 
for  a  right  of  way  across  property  at  the 
time  of  the  execution  of  a  contract  for  con- 
A'eyance  of  it,  upon  which  further  proceed- 
ings not  amounting  to  a  condemnation  are 
taken  between  the  making  of  the  contract 
and  the  time  for  delivery  of  the  deed,  does 
not  constitute  a  breach  of  a  covenant 
against  encumbrances,  damages  for  which 
can  be  set  off  against  the  purchase  price. 
Nixon  V.  Marr,  36:  1067,   190  Fed.  913,  111 

C.  C.  A.  503.  (Annotated) 

68.  The  prima  facie  presumption  estab- 
lished by  a  Code  provision  that  separation 
walls  betwixt  buildings,  or  yard  and  garden 
in  cities  and  town,  are  owned  in  common, 
does  not  apply  to  the  division  wall  between 
a  building  and  vacant  lot;  and  therefore, 
where  by  law  such  a  wall  erected  by  the 
owner  of  the  building  remains  his  exclusive 
property  urttil  the  owner  of  the  adjoining 
lot  makes  it  a  wall  in  common  by  paying 
one  half  the  cost  of  the  construction  there- 
of, the  owner  of  such  a  vacant  lot,  who 
conveys  the  same  "with  the  buildings  and 
improvements  thereon"  by  a  deed  of  war- 
ranty, is  not  liable  for  the  amount  of  money 
his  vendee  is  forced  to  pay,  to  .give  him  the 
right  to  use  such  wall  in  common.  Cordill 
V.  Israel,  39:  931,  57  So.  778,  130  La.  138. 
Eviction. 

69.  If  a  grantor  assumes  to  convey  real 
property  with  full  covenants  of  warranty 
when  he  has  neither  title  nor  possession, 
there  is  at  once  a  constructive  eviction  of 
the  grantee,  which  entitles  him  to  the  same 
remedies  which  he  would  have  had  if  he  had 
been,  evicted  from  actual  possession.  Bull 
V.  Beiseker,  14:  514,  113  N.  W.  870,  16  N. 

D.  290. 

70.  A  decree  ordering  sale  of  real  estate 
for  partition  is  sufficient  to  show  eviction  in 
breach  of  warranty  of  title  to  the  whole 
tract  although  the  covenantee  purchases  at 
the  sale  and  therefore  is  not  actually  evict- 
Digest  1-52  L.R.A.(N.S.) 


ed    from   the    premises.     Morgan   v.  Haley, 
13:  732,  58  S.  E.  5U4,  107  Va.  331. 

71.  A  judgment  in  a  partition  suit,  es- 
tablishing the  existence  of  an  outstanding 
superior  title  in  premises  conveyed  with 
covenant  of  seisin,  is  a  sufficient  eviction 
of  the  covenantee  to  constitute  a  breach  of 
covenant;  and  its  sufficiency  for  that  pur- 
pose is  not  afTected  by  the  covenantee's  pur- 
chase of  the  outstanding  title  after  making 
resistance  thereto  in  good  faith.  Brooks  v. 
Mohl,  17:  1 195,  116  N.  W.  931,  104  Minn. 
404. 

Restrictions  as  to  nse  of  property. 

72.  A  restriction  in  a  deed  limiting  the 
building  upon  the  premises  to  a  "dwelling 
house  to  be  used  exclusively  as  a  residence 
for  a  private  family"  is  violated  by  the 
keeping  of  boarders  and  roomers  to  the 
number  of  twelve  at  a  time  upon  tlie  prem- 
ises. Sayles  v.  Hall,  41:  625,  96  N.  E.  712, 
210  Mass.  281.  .(Annotated) 

73.  A  charitable  home  for  aged  persons 
and  orphans  is  not  a  business  within  the 
meaning  of  a  restrictive  covenant  forbid- 
ding the  use  of  any  lot  in  a  particular 
tract  of  land  for  any  certain  specified 
trades,  manufactories,  or  shows,  each  one 
of  which  is  either  inherently  dangerous, 
notoriously  offensive,  obnoxious  to  the 
moral  sense,  or  attractive  to  crowds  of 
people,  "or  any  other  trade  or  business 
dangerous  or  offensive  to  the  neighboring 
inhabitants."  Easterbrook  v.  Hebrew 
Ladies'  Orphan  Soc.  41:615,  82  Atl.  561, 
85  Conn.  289.  (Annotated) 

74.  A  four-story  apartment  house,  each 
apartment  being  suitable  only  for  separate 
use  as  a  housekeeping  apartment,  is  not  a 
violation  of  a  covenant  in  deeds  of  a  sub- 
division of  city  property,  inserted  so  that 
buildings  or  structures  upon  the  property 
might  harmonize  and  tend  to  beautify  the 
entire  neighborhood  and  advance  values, 
which  provide  that  nothing  but  a  church  or 
dwelling  house  and  the  necessary  outbiuld- 
ings  shall  ever  be  erected  upon  any  part  of 
the  land.  Johnson  v.  Jones,  52:  325,  90  Atl. 
649,  244  Pa.  386. 

75.  A  condition  in  the  conveyance  of 
lots  on  a  tract  of  residence  property,  that 
no  building  other  than  a  dwelling  house 
shall  be  erected  on  a  lot,  prohibits  the  con- 
struction of  a  double  house  on  the  lot,  al- 
though it  is  under  one  roof  with  a  single 
front  entrance.  Schadt  v.  Brill,  45:  726, 
139  N.  W.  878,  173  Mich.  647. 

(Annotated) 

76.  A  covenant  in  a  deed  of  conveyance 
whereby  the  grantor,  in  part  consideration 
for  the  conveyance,  stipulates  and  agrees 
for  himself,  his  heirs,  and  assigns,  concern- 
ing an  adjacent  lot  which  he  then  owns, 
that  the  only  building  upon  such  lot  shall 
be  a  residence  and  the  necessary  attach- 
ments, and  that  it  shall  be  used  for  no  other 
purposes  than  that  of  a  family  residence, 
precludes  the  building  for  tenement  pur- 
{K)ses  of  several  dwelling  houses  upon  such 
adjacent  lot.  Brown  v.  Huber,  28:  705,  88 
N.  E.  322,  80  Ohio  St.  183. 

77.  The  erection  on  the  rear  of  a  lot  of 


COVENANTS  AND  CONDITIONS,  III.  b. 


783 


a  stable  for  use  in  a  drayage,  express,  and 
plumbing  business  is  a  violation  of  a  cove- 
nant in  a  deed  of  a  city  lot  that  not  more 
than  one  dwelling  house  shall  be  erected 
on  the  lot,  which  shall  cost  not  less  than 
a  specified  amount,  and  not  to  be  used  for 
manufacturing,  mechanical,  or  business  pur- 
poses of  any  kind.  McNeil  v.  Gary,  46: 
1113,  40  App.  D.  C.  S97. 

78.  A  garage  to  accommodate  about  125 
automobiles  of  the  larger  type,  serve  as  a 
storeroom  and  depository  at  which  demon- 
stration cars  will  be  kept,  and  contain  a  re- 
pair shop,  may  be  found  to  be  within  a 
covenant  in  deeds  subdividing  a  tract  of 
land,  which  forbids  the  erection  on  the  prop- 
erty of  any  building  for  shops,  or  "any  other 
business  which  shall  be  offensive  to  the 
neighborhood  for  dwelling  houses."  Evans 
V.  Foss,  9:  1039,  80  N.  E.  587,  194  Mass. 
513.  (Annotated) 

79.  A  restrictive  covenant  in  a  deed  of 
real  estate,  executed  before  1900,  which  by 
statute  can  be  operative  only  for  a*  period 
of  thirty  years,  forbidding  the  placing  of 
a  stable  on  the  land,  does  not  include  a 
garage.  Eiverbank  Improv.  Co.  v.  Ban- 
croft. 34:  730,  95  N.  E.  216,  209  Mass.  217. 

80.  A  restrictive  covenant  in  a  deed  of  a 
lot  in  a  fine  residential  district  in  a  city, 
executed  before  1900,  forbidding  the  pla- 
cing of  buildings  thereon  other  than  a 
dwelling  nnd  the  usual  outbuildings  ap- 
purtenant thereto,  does  not  include  in  the 
word  "outbuilding"  an  automobile  garage 
for  private  use.  Riverbank  Improv.  Co.  v. 
Bancroft,  34:  730,  95  N.  E.  216,  209  Mass. 
217.  ( Annotated ) 

81.  A  covenant  establishing  a  building 
line  la  broken  by  the  erection  beyond  the 
line  of  a  three-story  porch  covering  the 
whole  width  of  the  lot,  and  constructed  of 
brick  and  stone  supported  by  pillars  20 
inches  square,  and  inclosed  by  solid  brick 
balustrades  3  or  4  feet  high,  the  first  story 
being  reached  by  cement  steps  beginning 
the  street  line  and  inclosed  by  so!id  brick 
buttresses  on  each  side.  O'Gallagher  v. 
Lockhart,  52:  1044,  105  N.  E.  295,  263  111. 
489.  (Annotated) 

82.' A  building  structurally  divided  into 
two  tenements  on  difTerent  floors,  with  no 
internal  communication,  common  staircase, 
or  common  front  door,  constitutes  two 
houses  within  the  meaning  of  a  covenant 
not  to  erect  more  than  one  house  on  the 
site.  Ilford  Park  Estates  Ltd.,  v.  Jacobs, 
1  B.  R.  C.  988,  [1903]  2  Ch.  522.  Also  Re- 
ported in  72  L.  J.  Ch.  N.  S.  699,  89  L.  T. 
N.  S.  295,  19  Times  L.  R.  574. 

( Annotated ) 

83.  A  billboard  or  advertisement  hoard- 
ing 156  feet  long  and  15  feet  high  is  a 
"fence"  within  the  meaning  of  a  covenant 
that  the  fence  to  be  erected  by  the  purchaser 
of  the  property  shall  consist  of  a  dwarf 
wall  with  iron  palisading,  although  it  is 
set  back  at  a  distance  varying  from  2  feet  9 
inches  to  6  feet  from  the  ultimate  boiuidary 
Digest  1-52  L.R.A.(N.S.) 


of  the  plot.  Nussey  v.  Provincial  Bill  Post- 
ing Co.  2  B.  R.  C.  425,  [1909]  1  Ch.  734. 
Also  Reported  in  78  L.  J.  Ch.  N.  S.  539, 
100  L.  T.  N.  S.  687,  25  Times  L.  R.  489, 
53  Sol.  Jo.  418. 

84.  A  billboard  or  advertisement  hoard- 
ing loG  feet  long  and  15  feet  high  is  a 
"building"  and  the  business  of  bill  posting 
is  an  "offensive  trade"  within  the  meaning 
of  a  restrictive  covenant  to  which  the  lots 
composing  a  residential  building  estate  were 
subjected,  "that  no  bricks  should  at  any 
time  be  burnt  upon  the  said  lots  or  any  of 
them  and  no  building  should  be  erected 
thereon  to  be  used  for  manufacturing  pur- 
poses nor  for  carrying  on  of  any  noisy, 
noisome,  offensive,  or  dangerous  trade  or 
calling,  nor  as  a  public  house  or  retail  shop, 
and  no  steam  engine  should  be  erected  there- 
on," notwithstanding  that  there  was  no 
covenant  that  the  land  should  be  used  for 
residential  purposes  only.  Nussey  v.  Pro- 
vincial Bill  Posting  Co.,  2  B.  E.  C.  425, 
[1909]  1  Ch.  734.  Also  Reported  in  78  L. 
J.  Ch.  N.  S.  539,  100  L.  T.  N.  S.  687,  25 
Times  L.  R.  489,  53  Sol.  Jo.  418. 

(Annotated) 

Effect.' 

Admissibility  of  evidence  of  custom  to  en- 
courage violation  of  restrictive  cove- 
nant, see  Evidence,  1524.  « 

85.  An  outstanding  mortgage  upon  prop- 
erty conveyed  constitutes  a  technical  breach 
of  the  covenant  against  encumbrances  as 
soon  as  the  deed  is  delivered,  but  it  gives 
rise  to  an  action  by  the  covenantee  for 
nominal  damages  only.  Re  Hanlin,  17: 
1189,  113  N.  VV.  411,  133  Wis.  140. 

86.  An  easement  of  a  continuing  right 
of  way  over  land  granted  by  a  deed  con- 
taining a  covenant  against  encumbrances, 
which  materially  affects  the  value  of  the 
land,  entitles  the  covenantee  at  once  to 
substantial  damages,  whether  the  easement 
be  in  actual  use,  or  be  only  potential. 
Smith  V.  White,  48:  623,  78  S.  E.  378,  71 
W.  Va.   639. 

87.  When  land  is  granted  to  a  city  upon 
a  valuable  consideration,  to  be  used  for 
streets  and  other  purposes,  the  title  will 
not,  in  the  absence  of  an  express  stipula- 
tion to  that  end,  revest  in  the  grantor  be- 
cause the  land  is  subsequently  used  for 
street  and  railroad  purposes.  Cleveland 
Terminal  &  V.  R.  Co.  v.  State  ex  rel.  Ellis, 
39:   1219,  97  N.  E.  967,  85  Ohio  St.  251.  ' 

88.  The  remainder  as  well  as  the  life  es- 
tate falls  by  forfeiture  of  the  life  estate  for 
breach  of  condition,  in  case  of  the  convey- 
ance to  one  for  life,  with  remainder  to  his 
children  living  at  his  death,  and,  in  the 
event  of  no  children  living,  then  over,  upon 
condition  that  the  life  tenant  shall  keep  the 
property  in  repair,  pay  taxes  and  an  annui- 
ty to  the  grantor,  breach  of  which  shall 
entitle  the  grantor  to  declare  a  forfeiture. 
Lumsden  v.  Payne,  21:  605,  114  S.  W.  483, 
120  Tenn.  407.  '  (Annotated) 

(.S.Vi)./..H.  ' 


784 


COVENANTS  AND  CONDITIONS,  III.  c,    1,  2. 


C.  Who  may  enforce. 

1.  In  general. 

(See  also  Covenant,  II.  c,  1,  in  Digest  L.R.A. 
1-70.) 

As  to  right  of  party  to  antenuptial  contract 
who  is  in  default,  to  enforce  covenants 
of  other  party,  see  Husband  and  Wife, 
]30. 

Joinder  of  parties  in  suit  to  enforce  or  to 
restrain  violation  of,  see  Parties,  151, 
154. 

89.  The  assigns  of  the  grantors  of  cer- 
tain land  to  a  canal  company  in  considera- 
tion and  on  condition  of  the  erection  of  a 
basin  upon  it  and  the  benefits  resulting  to 
the  grantors  therefrom  cannot  force  the  as- 
signs of  the  company  to  restore  the  basin 
on  the  ground  of  a  breach  of  a  condition, 
since,  if  the  agreement  be  treated  as  a  con- 
dition, it  is  a  condition  subsequent  and  the 
property  would  revert  to  the  heirs  of  the 
grantors.  Dawson  v.  Western  Maryland 
R.  Co.  14:  809,  68  Atl.  301,  107  Md.  70. 

90.  A  partnership,  one  member  of  which 
secures  the  good  will  of  a  business,  and 
afterwards  becomes  bankrupt,  may  main- 
tain  an  action  for  breach  of  the  covenant 

r  conveying  the  good  will,  where,  after  the 
bankruptcy,  the  title  to  the  good  will,  by 
mesne  conveyances,  becomes  vested  in  the 
partnership.  Foss  v.  Roby,  10:  1200,  81 
N.  E.  199,  195  Mass.  292. 
Restrictions  as  to  use  of  property. 

91.  The  owner  of  a  lot^  for  the  benefit  of 
which  restrictive  covenants  have  been  placed 
upon  other  lots  in  the  tract,  may  main- 
tain an  action  to  enforce  the  covenant. 
Riverbank  Improv.  Co.  v.  Bancroft,  34:  730, 
95  N.  E.  210,  209  Mass.  217. 

92.  A  purchaser  of  a  lot  in  a  tract  of 
land  opened  for  residence  purposes,  the 
deeds  to  each  of  which  contain  cove  .ants 
as  to  the  character  of  building  to  be  placed 
on  the  lot,  may  enforce  such  covenant 
against  the  purchaser  of  another  lot.  Mc- 
Neil v.  Gary,  46:  11 13,  40  App.  D.  C.  397. 

93.  A  remote  grantee  of  a  portion  of  a 
tract  of  land  cannot  enforce  against  a  re- 
mote grantee  of  another  portion  a  restric- 
tive covenant  in  a  'grant  of  the  entire  tract 
before  its  subdivision,  as  to  the  character 
of  buildings  to  be  placed  on  the  property, 
although  the  original  grantor  parted  with 
his.  entire  interest  in  all  property  in  the 
neighborhood,  where  deeds  and  mortgages 
were  given  by  a  subsequent  grantee  in  sub- 
dividing the  tract,  and  foreclosure  sales  j 
made  on  the  various  subdivisions,  without 
anv  reference  to  sucli  covenant.  Korn  v. 
Campbell,  37:  i,  85  N.  E.  687,  192  N.  Y. 
490. 

94.  A  grantor  may,  although  he  has 
parted  with  all  property  in  the  neiglibor- 
hood,  enforce  restrictive  covenants  on  the 
use  of  city  property  against  an  assignee  of 
his  grantee  with  notice.  Vansant  v.  Rose, 
49:  186,   103  N.  E.   194,  260  111.  401. 

95.  The  absence  from  the  deed  of  lan- 
Bigest  1-52  L.R.A.(N.S.^ 


guage  showing  that  a  covenant  restricting 
the  uses  to  which  the  land  can  be  put  is 
for  the  benefit  of  the  remaining  tract  of 
the  grantor  will  not  prevent  tlie  enforce- 
ment of  the  condition  in  favor  of  subse- 
quent owner  of  such  remainder,  if,  from 
tlie  surrounding  circumstances,  it  appears 
that  the  intention  was  to  benefit  such  tract. 
Ball  V.  Milliken,  37:  623,  76  Atl.  789,  31 
R.  I.  36. 

96.  A  covenant  in  a  deed  of  a  parcel  of  a 
tract  being  divided  into  city  lots,  which  is 
stated  to  run  with  the  land,  and  i-ecjuires 
the  covenantor  to  construct  a  specified  build- 
ing on  the  property  which  shall  be  a  cer- 
tain distance  from  street  and  side  lines, 
cannot  be  enforced  by  a  purcliaser  of  an  ad- 
joining lot,  whose  deed  forbids  the  placing 
of  a  building  on  the  lot  within  the  same 
distance  from  the  street  specified  in  the 
former  deed,  on  the  theory  that  the  obliga- 
tions are  reciprocal.  Berryman  v.  Hotel 
Savoy  Co.  37:5,  117  Pac.  677,  160  Cal. 
559.      • 

97.  A  finding- that  covenants  in  a  deed  of 
a  parcel  of  a  tract  of  city  projierty,  re- 
quiring the  erection  of  a  building  of  a  cer- 
tain character  placed  in  a  certain  way  upon 
tlie  property,  were  for  the  benefit  of  the  en- 
tire tract,  does  not  require  its  enforcement 
at  the  suit  of  an  adjoining  owner,  where  it 
is  also  found  that  there  was  no  intention  to 
create  an  easement  in  favor  of  any  land 
whatever.  Berryman  v.  Hotel  Savoy  Co. 
37:  5,  117  Pac.  677,  160  Cal.  559. 

98.  A  mortgagee  of  real  estate  may 
maintain  a  suit  to  enjoin  violation  of  a 
building  restriction  which  has  been  im- 
posed upon  neighboring  property  for  the 
ben^t  of  that  which  is  subject  to  his  mort- 
gage. Stewart  v.  Finkelstone,  28:  634,  92 
N.  E.  37,  206  Mass.  28. 

2.  Covenants  running  with  the  land. 

(See  also  Covenant,  II.  c,  2,  in  Digest  L.R.A. 
1-70. J 

See  also  supra,  96. 

99.  An  action  to  recover  damages  for  the 
breach  of  covenants  of  warranty  cannot  be 
maintained  by  one  who  has  neither  jirivity 
of  estate  nor  of  contract.  Bull  v.  Bciseker, 
14:  514,  113  N.  W.  870,  16  N.  D.  290. 
Subsequent  grantees. 

100.  Eviction  under  foreclosure  of  a 
mortgage  existing  on  property  at  the  time 
it  is  conveyed  with  a  covenant  of  general 
warrantj'  gives  a  remote  grantee  a  right 
of  action  on  the  covenant,  notwithstanding 
there  were  other  covenants  in  the  deed 
which  would  have  given  the  immediate 
grantees  a  right  of  action  because  of  the 
encumbrance  as  soon  as  the  deed  was  exe- 
cuted. Williams  v.  O'Donnell,  26:  1094, 
74   Atl.  205,  225  Pa.  321. 

101.  Covenants  in  a  deed  of  real  property 
executed  by  one  who  had  neither  title  nor 
possession,  do  not  run  with  the  land  so  as 
to  transfer  a  cause  of  action  for  their  breach 
to  remote  grantees  by  operation  of  assumed 


COVENANTS  AND  CONDITIONS,  III.  d,  1. 


785 


conveyances  of  the  property  by  the  execu- 
tion and  delivery  of  deeds  purportinp:  to  con- 
vev  it.  Bull  V.  Beiseker,  14:  514,  113  N.  W. 
870,  16  N.  D.  290. 

102.  A  provision  in  a  deed  granting  a 
strip  of  land  to  a  city  for  a  street,  that 
"I  shall  never  be  compelled  to"  build  a 
pavement,  is  a  mere  personal  exemption,  and 
does  not  run  with  the  remaining  land  for 
the  benefit  of  a  grantee.  Richmond  v.  Ben- 
nett, 16:  548,  109  S.  W.  904,  33  Ky.  L.  Rep. 
279. 

103.  A  warranty  of  seisin  of  an  inde- 
feasible estate  in  fee  simple  in  a  deed  of 
real  estate,  Avhich  is  broken  at  the  time  it 
is  made  runs  with  the  land,  so  that  a  sub- 
sequent grantee  can  maintain  an  action  for 
damages  for  breach  thereof  against  the  orig- 
inal vendor.  Colenian  v.  Lucksinger,  26: 
934,  123  S.  W.  441,  224  Mo.  1. 
Assignees. 

104.  The  assignee  of  a  remote  grantee 
cannot  maintain  an  action  to  recover  dam- 
ages for  breach  of  covenants  in  a  deed  of 
real  property  which  the  covenantor  neither 
had  title  to  nor  possession  of  at  the  time 
of  the  execution  and  delivery  of  the  deed,  in 
the  absence  of  any  transfer  of  the  cause  of 
action  by  the  covenantee  to  the  plaintiff's 
assignor.  Bull  v.  Beiseker,  14:  514,  113  N. 
W.  870,  16  N.  D.  290.  (Annotated) 

105.  A  provision  in  a  deed  poll  to  a  canal 
company  that  the  company,  in  consideration 
and  on  condition  of  the  transfer  of  certain 
land  to  it,  and  the  resulting  benefit  to  the 
grantors  as  the  owners  thereof,  will  con- 
struct a  basin  connected  with  the  canal 
upon  the  property,  cannot  be  enforced  by 
the  assigns  of  the  grantors  on  the  ground 
that  it  is  a  covenant  running  with  the  land, 
since  the  company  did  not  sign  or  seal  the 
deed,  and  since  the  provision  relied  on  as 
a  covenant  referred  to  things  not  in  being, 
and  there  was  nothing  that  could  be  con- 
strued either  as  a  covenant  with  the  grant- 
ors and  their  assigns,  or  by  the  canal  com- 
pany for  itself  and  assigns.  Dawson  v. 
Western  Maryland  R.  Co.  14:  809,  68  Atl. 
301,  107  Md.  70. 

d.  Who  liable  or  bound. 

1.  In  general. 

(See  also  Covenant,  II,  d,  1,  in  Digest  L.R.A. 
1-10.) 

Personal  liability  of  executors  on  warranty 
in  deed,  see  Executors  and  Adminis- 
trators, 61. 

Liability  of  decedent's  estate  to  covenantee, 
see  Judgment,  174. 

Covenant  in  lease  as  to  repairs  by  landlord, 
see  Landlord  and  Tenant,  26. 

See  also  supra,  93,  94. 

106.  The  vital  question  in  an  equitable 
action  to  enforce  a  restrictive  covenant  in 
a  deed  of  conveyance,  controlling  the  use  or 
enjoyment  of  the  land  conveyed,  is  not 
whether  there  is  a  covenant  running  with 
the  land,  but  whether  the  reistriction  as- 
Digcst  1-52  L.R.A.(N.S.) 


serted  and  relied  on  was  one  imposed  upon 
the  servient  estate  for  the  benefit  of  the 
land  in  behalf  of  which  it  is  sought  to  be 
enforced.  Brown  v.  Huber,  28:  705,  88  N. 
E.  322,  80  Ohio  St.  183. 

107.  A  grantee  of  the  exclusive  right  to 
use  and  control  all  of  the  springs  and 
branches  upon  a  described  tract  of  land,  if 
he  enters  upon  the  land  and  accepts  the 
deed  in  other  matters,  will  be  bound  by 
covenants  contained  thA-ein,  although  he 
did  not  sign  it.  Atlanta,  K.  &  N.  R.  Co.  v. 
McKinney,  6:  436,  53  S.  E.  701,  124  Ga.  929. 

(Annotated) 

108.  Purchasers  and  assigns  of  real  prop- 
erty are  not  bound  by  a  personal  covenant 
of  the  former  owner,  contained  in  a  writ- 
ten agreement  made  with  the  owner  of  ad- 
joining property,  but  not  forming  a  part  of 
a  deed  or  indenture  in  the  chain  of  title,  un- 
less they  have  such  knowledge  or  notice  of 
it  as  to  imply  that  the  burden  was  assumed 
as  a  part  of  the  consideration.  Sjobloin  v. 
Mark,  15:  1129,  114  N.  W.  746,  103  Minn. 
193. 

109.  That  restrictive  building  covenants 
were  not  inserted  in  deeds  to  lots  in  a  plat 
will  not  prevent  the  enforcement  of  them 
against  the  owners  if  they  were  part  of  a 
general  plan  for  the  tract  and  the  lots  were 
all  sold  with  the  understanding  that  the 
conveyances  were  subject  to  such  restric- 
tions. Allen  v.  Detroit,  36:  890,  133  N.  W. 
317,  167  Mich.  464. 

110.  A  covenant  by  a  grantor  whereby  he 
stipulates  and  agrees  for  himself,  his  heirs, 
and  assigns,  that  the  only  building  upon  an 
adjacent  lot  owned  by  him  shall  be  a  resi- 
dence and  the  necessary  attachments,  and 
that  it  shall  be  used  for  no  other  purposes 
than  that  of  a  family  residence,  is  binding 
upon  one  claiming  under  him,  who  took 
with  notice  thereof.  Brown  v.  Huber,  28: 
705,  88  N.  E.  322,  80  Ohio  St.  183. 

111.  Equity  will  enforce  against  a  grantee 
witji  notice  an  agreement  between  adjoin- 
ing property  owners  that  an  air  space  shall 
be  left  along  the  division  boundary  line  in 
placing  buildings  on  the  lots.  Cotton  v. 
Cresse,  49:  357,  85  Atl,  600,  80  N.  J.  Eq. 
540.  (Annotated) 

112.  A  provision  in  a  deed  that  the  land 
is  granted  in  consideration  and  on  condition 
of  the  erection  of  a  canal  basin  thereon  is 
enforceable  in  equity  by  the  grantors 
against  the  assigns  of  the  grantee  with  no- 
tice, notwithstanding  the  provision  does 
not  amount  to  a  covenant  running  with  the 
land.  Dawson  v.  Western  Maryland  R.  Co. 
14:  809,  68  Atl.  SOI,  107  Md.  70. 

113.  One  who  buys  land  subject  to  a  lease 
containing  a  covenant  whereby  the  lessor 
expressly  stipulates  that  the  lessee,  at  his 
option,  may  make  necessary  repairs,  alter- 
ations, additions,  or  improvements  upon  the 
leased  premises,  and  that  he  will  reimburse 
him  therefor,  is  not  bound  for  the  breach  of 
the  purely  personal  covenant  of  his  predeces- 
sor, made  prior  to  the  sale  to  him.  Willcox 
V.  Kehoe,  4:  466,  52  S.  E.  896,  124  Ga.  484. 
Municipality. 

114.  A  municipal  corporation  which  pur- 
50 


780 


COVENANTS  AND  CONDITIONS,  III.  d,   2,  IV. 


chases  for  public  use  a  parcel  of  land  which 
is  subject  to  building  restrictions  in  favor 
of  adjoining  landowners  cannot  place  upon 
the  property  a  building  which  violates  such 
restrictions  witliout  terminating  the  ease- 
ments represented  by  the  covenants,  either 
by  purchase  or  condemnation.  Allen  v.  De- 
troit, 36:  890,  133  N.  W.  317,  167  Mich. 
464. 

2.  Covenants  running  with  the  land. 

(See  also  Covenant,  II.  d,  2,  in  Digest  L.R.A. 
1-10.) 

iioH  .80! 
See  also  supra,  112.  .f<    .,.,    > 

115.  The  statutory  extinguishment  of 
the  title  of  the  dispossessed  owner  of  land, 
under  a  statute  providing  that  at  the  de- 
termination of  the  period  limited  to  any 
person  for  the  bringing  of  an  action  to 
establish  his  right  and  title  therein,  the 
right  and  title  of  such  person  "shall  be  ex- 
tinguished," does  not  have  the  effect  of 
destroying  the  negative  easement  created  by 
a  restrictive  covenant  entered  into  by  such 
owner ;  and  consequently  the  covenantee  can 
enforce  the  covenant  against  the  squatter 
both  before  and  after  he  has  acquired  his 
possessory  title,  and  also  against  any  sub- 
sequent owner  of  the  land  not  being  a  bona 
fide  purchaser  for  value  without  notice.  Ke 
Nisbet,  2  B.  R.  C.  844,  [1906]  1  Oh.  386. 
Also  Reported  in  75  L.  J.  Ch.  N.  S.  238,  54 
Week.  Rep.  286,  94  L.  T.  N.  S.  297,  22 
Times  L.  R.  234.  (Annotated) 
Covenantor. 

116.  A  covenant  by  a  grantee  perpetually 
to  maintain  a  division  fence,  which  rur.s 
with  the  land  and  is  therefore  binding  upon 
a  subsequent  grantee  of  the  covenantor,  is 
not  binding  upon  the  latter  after  he  has 
parted  with  his  title.  Sexauer  v.  Wilson, 
14:  185,  113  N.  W.  941,  136  Iowa,  357. 
Grantee.  , 
See  also  supra,  115. 

117.  A  covenant  by  the  purchaser  of 
water  rights  to  convey  to  an  adjacent  lot 
occupied  by  the  vendor  as  a  residence  suf- 
ficient water  for  the  ample  use  and  accom- 
modation of  its  occupants  runs  with  the 
land,  and  binds  the  successor  in  title  of  the 
covenantor.  Atlanta,  K.  &  N.  R.  Co.  v.  Mc- 
Kinney,  6:  436,  53  S.  E.  701,  124  Ga.  929. 

118.  Acceptance  of  deed  poll  binds  the 
grantee  to  the  performance  of  covenants 
contained  therein.  Sexauer  v.  Wilson,  14: 
185,  113  N.  W.  941,  136  Iowa,  357. 

119.  A  covenant  on  the  part  of  the  gran- 
tee perpetually  to  maintain  a  tight  ftmce 
between  the  land  described  and  other  prop- 
erty of  the  grantor  adjacent  thereto  runs 
with  the  land,  and  is  therefore  binding  upon 
a  subsequent  grantee,  although  there  was 
no  fence  in  existence  at  the  time  the  cove- 
nant was  made,  and  the  word  "assigns"  is 
not  used  in  the  covenant.  Sexauer  v.  Wil- 
son, 14:  185,  113  N.  W.  941,  130  Iowa,  357. 

(Annotated) 
Digest  1-52  L.B.A.(N.S.) 


120.  An  agreement  of  a  water  company 
to  furnish  water  from  its  canal  from  year 
to  year  at  an  agreed  price  for  irrigation 
purposes,  which  provides,  in  eirect,  that  the 
obligation  imposed  on  the  company  shall 
have  the  force  and  effect  of  a  covenant  run- 
ning with  its  canal,  is  not  a  mere  personal 
covenant,  and  does  not  create  a  lien  on  the 
canal,  but  is,  in  substance  and  effect,  an 
agreement  for  the  sale  of  real  property  of 
the  company,  binding  on  a  successor  of  the 
company  with  notice.  Stanislaus  Water  Co. 
v.  Bachman,  15:  359,  93  Pac.  858,  152  Cal. 
716. 

121.  A  negative  covenant  when  validly 
created  binds  the  land  in  equity,  and  can 
be  enforced  as  against  subsequent  owners 
of  the  land,  subject  only  to  the  limitation 
that,  being  equitable,  it  cannot  be  enforced 
as  against  a  bona  fide  purchaser  without 
notice.  Re  Nisbet,  2  B.  R.  C.  844,  [1906] 
1  Ch.  386.  Also  Reported  in  75  L.  J.  Ch. 
N.  S.  238,  54  Week.  Rep.  286,  94  L.  T.  N. 
S.  297,  22  Times  L.  R.  234. 

IV.  Running  with  the  land. 

(See  also   Covenant,  III.  in  Digest  L.R.A. 

1-70 J. 

Who  may  enforce,  see  supra.  III.  c,  2. 

Who  bound  by,  see  supra,  III.  d,  2. 

In    lease,    as    to    repairs   by    landlord,    see 

Landlord  and  Tenant,  26. 
When  action  is  barred,  see  Limitation  of 

Actions,  257. 
See  also  supra,  96. 

122.  A  negative  covenant  validly  created, 
entered  into  by  an  owner  of  land  with  an 
adjoining  owner,  such  as  a  covenant  re- 
stricting the  user  of  the  land,  binds  the  land 
in  equity,  as  being  in  the  nature  of  a  nega- 
tive easement.  Re  Nisbet,  2  B.  R.  C.  844, 
[1906]  1  Ch.  386.  Also  Reported  in  75  L. 
J.  Ch.  N.  S.  238,  54  Week.  Rep.  286,  94 
L.  T.  N.  S.  297,  22  Times  L.  R.  234. 

123.  A  covenant  imposing  a  burden  on 
real  estate  for  the  benefit  of  the  grantor 
personally  does  not  follow  tlie  land  into 
the  possession  of  an  assignee.  Berryman 
v.  Hotel  Savoy  Co.  37:  5,  117  Pac.  677,  160 
Cal.  559. 

124.  A  covenant  in  a  deed  of  a  parcel  of  a 
tract  of  city  property,  that  the  grantee  ahall 
place  a  certain  described  building  on  the 
property,  having  certain  relations  to  the 
side  lines  of  the  lot,  is  personal  to  the 
grantor,  and  does  not  run  with  the  remain- 
der of  the  tract,  although  the  deed  states 
that  the  covenant  runs  with  the  land  "here- 
in conveyed."  Berryman  v.  Hotel  Savoy 
Co.  37:  5,  117  Pac.  677,  160  Cal.  559. 

125.  A  covenant  against  eviction  runs 
with  the  land.  Williams  v.  OT)onnell,  26: 
1094,  74  Atl.  205,  225  Pa.  321. 

126.  An  agreement  by  an  owner  of  land 
with  an  adjoining  owner  that  for  the  pe- 
riod of  ten  years  he  will  not  sell,  or  permit 
to  be  sold,  ujwn  the  premises,  any  intoxi- 
cating liquor,  is  not  a  covenant  running  with 


COVENANTS  AND  CONDITIONS,  V.— CREAM. 


the  land.     Sjoblom  v.  Mark,  15:1129,  114  N. 
W.  746,  103  Minn.  193. 

127.  A  covenant  by  a  lessor  to  convey  a 
fee  to  the  lessee,  his  heirs  and  assigns,  upon 
the  performance  of  certain  conditions,  runs 
with  the  land.  Hollander  v.  Central  Metal 
&  S.  Co. '23:  1135,  71  Atl.  442,  109  Md.  131. 

128.  A  provision  in  a  deed  whereby  the 
grantee  assumes  and  agrees  to  pay  an  ex- 
isting mortgage  does  not  create  a  covenant 
which  runs  with  the  land,  although  insert- 
ed in  connection  with  the  covenants  of  sei- 
sin and  against  encumbrances.  Clement  v. 
Willett,  17:  1094,  117  N.  W.  491,  105  Minn. 
267. 

129.  A  covenant  by  a  railroad  company 
to  leave  at  a  siding  on  property  of  the  cove- 
nantee any  car  in  which  articles  weighing 
a  certain  amount  shall  be  laden  for  him, 
and  on  which  the  char!^>es  for  transportation 
are  paid,  does  not  run  with  the  land. 
Whalen  v.  Baltimore  &  0.  R.  Co.  17:  130, 
69  Atl.  390,  108  Md.   11. 

Stopping  trains;  maintenance  of  sid- 
ing. 

130.  A  covenant  in  a  grant  of  a  railway 
right  of  way,  to  stop  trains  at  a  point  near 
the  residence  of  the  grantor,  although  refer- 
ring to  something  not  in  being,  and  specific- 
ally stated  to  be  for  the  benefit  of  assignees 
of  the  landowner,  runs  with  the  land  into 
possession  of  his  devisees.  Ford  v.  Oregon 
Electric  R.  Co.  36:  358,  117  Pac.  809,  60 
Or.  278. 

131.  A  covenant  by  a  railroad  company 
with  one,  his  heirs  and  assigns,  to  construct 
and  maintain  a  siding  on  his  property,  and 
to  run  trains  to  and  from  it,  runs  with  the 
land.  Whalen  v.  Baltimore  &  O.  R.  Co. 
17:  130,  69  Atl.  390,  108  Md.  11. 

Party  tirall. 

See  also  Party  Wall,  11. 

132.  A  party  wall  agreement  is  in  the 
nature  of  a  covenant  running  with  the  land. 
Hawkes  v.  Hoffman,  24:  1038,  105  Pac.  156, 
56  Wash.  120. 

133.  A  contract  made  between  the  re- 
spective owners  of  adjoining  lots,  expressed 
to  be  binding  upon  their  heirs  and  assigns, 
providing  that  the  wall  of  a  building  one 
of  them  is  about  to  erect  shall  be  placed 
upon  the  dividing  line,  and  that,  when  the 
other  builds,  he  shall  use  it  as  a  party  wall, 
and  pay  him  half  its  value,  in  effect  creates 
covenants  running  with  the  land  of  each 
party ;  and  where,  after  such  first  building  is 
erected,  conveyances  are  mad?  of  each  lot, 
the  subsequent  owner  of  the  vacant  lot,  who 
builds  thereon  and  makes  use  of  the  party 
wall,  is  required  to  make  payment  therefor 
to  the  then  owner  of  the  lot  first  built 
upon.  South  worth  v.  Perring,  2:  87,  81 
Pac.  481,  82  Pac.  785,  71  Kan.  755.  ' 

(Annotated) 
"Water  rights. 

License  running  with  land,  see  License,  2 
See  also  supra,  117. 

134.  A  stipulation  in  a  deed,  that  the 
grantee  of  even-numbered  water  lots  shall 
build  a  dam,  with  a  canal  or  race  of  a  spe- 
cified character  extending  through  the  prop- 
erty, including  the  odd-numbered  lots,  and 
Digest  1-52  L.R.A.(N.S.) 


that  the  lots  conveyed,  with  their  improve- 
ments, shall  be  forever  liable  for  the  pay- 
ment of  any  damage  sustained  by  the  own- 
ers of  the  odd-numbered  lots  by  reason  of 
the  failure  to  complete  the  race  or  canal  and 
keep  it  in  good  repair, — is  a  covenant  run- 
ning with  the  land.  Muscogee  Mfg.  Co.  v. 
Eagle  &  Phenix  Mills,  7:  1139,  54  S.  E. 
1028,  126  Ga.  210. 

135.  A  covenant  by  the  grantee  of  water 
rights  to  supply  water  to  tlie  residence  of 
the  grantor  does  not  extend  to  a  thing  not 
in  esse,  so  as  to  prevent  it  from  running 
with  the  land,  although  the  machinery  for 
conveying  the  water  to  the  residence  was 
not  in  existence  when  the  coven^ts  was 
made.  Atlanta,  K.  &  N^.  R.  Co.  v.  McKinney. 
6:  436,  53  S.  E.  701,   124  Ga.  929. 

V.  Extinguishment     of,     or     discharge 
from,  covenant.     ,,  ,„  j.^ji/j 
■7 
(See  also   Covenant,   IV.  in  Digest  L.R.A 
1-70.) 

136.  As  a  general  rule,  a  covenant  in  a 
deed  of  land,  restricting  the  mode  of  its 
use,  and  inserted  for  the  benefit  of  adjoin- 
ing land  of  the  grantor,  will  be  extinguished 
by  the  subsequent  vesting  in  one  person  of 
the  title  to  both  tracts  of  land.  Muscogee 
Mfg.  Co.  V.  Eagle  &  Phenix  Mills,  7:  11 39, 
54  S.  E.  1028,  126  Ga.  210. 


COVERS. 

Injunction   against   erection   of,   for   shoot- 
ing purposes,  see  Injunction,  49,  50. 


COVERTURE. 


U.iV  U 


Effect  of,  on  acquirement  of  title  by  adverse 

possession,    see    Adverse    Possession, 

11,  12. 
Effect   of,    on   running   of   limitations,    see 

Limitation  of  Actions,  II.  m. 
As  to  disability  of  coverture  generally,  see 

Husband  and  Wife,  I.  b. 


covtrs. 

Liability  for  injury  by,  see  Animals,  14. 
Frightening  of  horse  by,  while  at  large  in 

highway,  see  Animals,  21,  22. 
Breach  of  warranty  on  sale  of,  see  Sale, 

200. 


.aViUnti 


CREAM. 


Injunction  to  restrain  enforcement  of  stat- 
ute regulating  shipment  of  cream,  see 
Injunction,  354. 

See  also  Food,  37-42. 


788 


CREDIBILITY— CREDITORS'    BILL,   I. 


CREDIBILITY. 

Presumption  as  to  credibility  of  evidence, 

see  Evidence,  293,  296. 
Of  witness,  see  Witnesses,  IV. 


CREDIT. 

Withdrawing  from  shipper  privilege  of 
shipping  goods  on  credit,  see  Cabbiebs, 
757. 

To  convicts  for  good  behavior,  see  Constitu- 
tional Law,  97. 

Liabilitjf.  on  oral  representations  as  to  an- 
other's credit,  see  Contbacts,  199. 

Loan  of  credit  by  corporation,  see  Cobpoba- 
tions,  73. 

Damages  for  injuries  to,  see  Damages,  43. 

Fraud  in  obtaining,  see  Fbaud  and  Deceit, 
V. 

Right  to  proceed  in  bankruptcy  against  in- 
solvent purchasing  goods  on  credit  with- 
out disclosing  facts,  see  Fbaud  and  De- 
ceit, 22. 

Situs  of,  for  purpose  of  garnishment,  see 
Gabnishment,  I.  d. 

To  guardian  for  services,  see  Guabdian  and 
Wabd,  7. 

Agent's  powers  to  purchase  or  sell  on  cred- 
it, see  Pbincipal  and  Agent,  II.  b. 

Taxation  of,  see  Statutes,  63-69,  80-82, 
137-148,  185,  340,  342-344. 


CREDITORS'  BILL. 

I.  When  maintainable,  1—10. 
II.  Exhausting  legal  remedies,  11,  12. 
III.  What    property    may    he    reached, 

13-20. 
IV.  Liens;  priorities  between  creditors. 
V.  Decree;  relief  generally. 

Waiver  of  error  in  trial  court,  see  Appeal 
AND  Ebror,  820. 

As  action  in  rem;  effect  on,  of  discharge  in 
bankruptcy,  see  Bankbuptcy,  145,  146. 

To  compel  payment  of  stock  subscriptions, 
see  Corporations,  342. 

To  enforce  statutory  liability  of  stockhold- 
ers, see  Corporations,  368,  369. 

Effect  of  injunction  in  suit  in  Federal  court 
founded  on,  on  subsequent  actions  at 
law  by  debtor,  see  Coubts,  281, 

Proceeding  in  aid  of  execution  contrasted 
with,  see  Execution,  12, 

As  to  supplementary  proceeding,  see  Exe- 
cution, II. 

Sufficiency  of  complaint,  see  Pleading,  423. 

Against  person  converting  debtor's  property, 
see  Troveb,  3. 

7,  When  maintainable. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

For  tax,  see  Taxes,  III.  e. 

See  also  Fraudulent  Conveyances,  4,  5. 

Digest   1-52   L.R.A.(N.S.) 


1.  The  absence  oi  fraud  cm  the  part  of 
a  debtor,  or  of  a  lien  or  a  trust  in  favor  of 
the  creditor,  is  fatal  to  the  maintenance  of 
a  creditors'  bill.  Raymond  v.  Blancgrass, 
15:976,  93  Pac.  648,  ,36  Mont.  449. 

2.  A  creditor  of  a  debtor  corporation 
may  proceed  in  equity  to  set  aside  a  trans- 
fer by  a  corporation  of  investment  bonds  of 
anotlier  corporation,  held  by  it  in  considera- 
tion of  shares  of  its  own  stock.  Hall  v. 
Alabama  Terminal  &  Improv.  Co.  2:  130, 
39  So.  285,  143  Ala.  464. 

3.  A  court  of  equity,  in  the  absence  of 
fraudulent  transfer,  and  in  the  absence  of 
sii.'h  other  fraud  as  would  positively  impede 
an  action  at  law  and  proceeding  in  garnish- 
ment, has  no  jurisdiction  to  subject  the 
choses  in  action  of  the  debtor  to  the  pay- 
ment of  his  debts.  Hall  v.  Alabama  Ter- 
minal &  Improv.  Co.  2:  130,  39  So.  285,  143 
Ala.  464. 

4.  Incorporating  into  a  garnishment 
statute  a  provision  for  bringing  in  an  as- 
signee of  defendant's  choses  in  action,  and 
the  trial  of  the  bona  fides  of  the  assign- 
ment does  not  oust  equity  of  its  jurisdiction 
to  subject  such  choses  to  the  claims  of 
creditors.  Hall  v.  Alabama  Terminal  & 
Improv.  Co.  2:  130,  39  So.  285,  143  Ala.  464. 

5.  A  creditor  may,  notwithstanding  the 
garnishment  statutes,  apply  to  a  court  of 
equity  to  set  aside  an  assignment  of  a 
chose  in  action  in  fraud  of  his  rights.  Hall 
v.  Alabama  Terminal  &  Improv.  Co.  2:  130, 
39  So.  285,  143  Ala.  464. 

6.  A  creditor  whose  debtor  has  fraudu- 
lently conveyed  his  property  may,  if  he 
chooses,  before  reducing  his  claim  to  writ- 
ing, commence  an  action  aideo  by  attach- 
ment, and  seize  th.^  estate  fraudulently  con- 
veyed, and,  after  judgment  in  the  attach- 
ment suit,  enforce  his  lien  by  an  action  in 
the  nature  of  a  creditors'  bill,  whether  the 
debtor  resides  within  or  without  the  state. 
Ainsworth  v.  Koubal,  2:  988,  105  N.  W.  248, 
74  Neb.  723. 

7.  An  attachment  or  judgment  lien  is 
not  necessary  to  enable  a  judgment  creditor 
of  a  corporation  to  go  into  equity  to  reach 
its  assets  which  have  been  transferred  to 
a  stranger,  where  he  has  exhausted  his  rem- 
edies at  law.  Williams  v.  Commercial  Nat. 
Bank,  11:  857,  90  Pac.  1012,  49  Or.  492, 

8.  The  duty  imposed  upon  children  by 
their  mother's  will  to  furnish  care,  support, 
and  necessaries  to  their  father,  which  is 
made  a  charge  on  property  devised  to  them 
by  her,  is  not  to  pay  money  which  can  be 
reached  by  the  father's  general  creditors, 
until  the  children  have  failed  to  perform  it. 
Merchants'  Nat.  Bank  v.  Crist,  23:  526,  118 
N.   W.   394,   140   Iowa,   308. 

9.  The  surrender  by  a  husband  of  his 
statutory  rights  in  his  wife's  estate,  and  his 
acceptance  of  a  provision  for  support  in  lieu 
thereof,  contained  in  her  will,  does  not  en- 
title his  creditors  to  subject  the  benefit  ac- 
cruing to  him  under  the  will  to  the  payment 
of  their  claims  if  it  could  not  otherwise 
be  reached  by  them.  Merchants'  Nat.  Bank 
v.  Crist,  23:  526,  118  N.  \V.  394,  140  Iowa, 
308, 


CREDITORS'  BILL,  II.— CREMATORIES. 


rs9 


10.  A  judgment  creditor  of  one  whose 
support  is  made  a  lien  upon  property  de- 
vi.sed  to  persons  charged  with  the  duty  of 
furnishing  it  may  maintain  a  bill  in  equity 
to  subject  the  property  so  far  as  necessary 
to  the  payment  of  whatever  amount  should 
be  paid  towards  the  satisfaction  of  it  by 
such  persons.  Merchants'  Xat.  Bank  v. 
Crist,  23:  526,  118  N.  W.  394,  140  Iowa,  308. 

( Annotated ) 

II.  Exhausting  legal  remedies. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

See  also  supra,  7.  ,„ 

11.  A  party  cannot  maintain  an  action 
in  the  nature  of  a  creditor's  suit  to  reach 
property  of  his  debtor  fraudulently  con- 
veyed, until  the  claim  has  been  reduced  to 
judgment;  and  until  judgment  is  obtained 
by  the  creditor  the  statute  of  limitations 
will  not,  under  ordinary  circumstances,  com- 
mence to  run  against  such  a  suit,  notwith- 
standing the  existence  of  a  remedy  by  at- 
tachment before  reducing  the  claim  to 
judgment.  Ainsworth  v.  Roubal,  2:  g88,  105 
N.    W.   248,   74   Neb.   723.  (Annotated) 

12.  A  cause  of  action  for  conversion  in 
favor  of  a  debtor,  if  property,  must  be  pro- 
ceeded against  by  execution  by  the  creditor 
before  he  can  maintain  a  creditors'  bill  un- 
der statutes  making  all  forms  of  property, 
real  and  personal,  subject  to  levy.  Raymond 
V.  Blancgrass,  15:976,  93  Pac.  648,  36  Mont. 
449.  (Annotated) 

///.  What  property  may  he  reached. 

(See  also   same  heading   in  Digest  L.R.A 
1-10.) 

13.  Choses  in  action  are  within  the  pro- 
visious  of  a  statute  permitting  the  %\ing  of 
a  bill  in  equity  to  subject  to  the  payment 
of  a  debt  any  property  which  has  been  fraud- 
ulently conveyed  by  the  debtor.  Hall  v. 
Alabama  Terminal  &  Improv.  Co.  2:  130, 
39  So.  285,  143  Ala.  464. 

14.  Money  paid  by  a  debtor  corporation 
for  shares  of  its  own  stock  is  property 
fraudulently  transferred,  which  may  be 
reached  and  subjected  by  a  creditor  to  his 
claims  by  a  bill  in  equity.  Hall  v.  Alabama 
Terminal  &  Improv.  Co.  2:  130,  39  So.  285, 
143  Ala.  464. 

15.  A  creditor's  bill  will  not  lie  to  reach 
the  surrender  value  of  the  debtor's  life  in- 
surance policies,  which  were,  prior  to  the 
contracting  of  the  indebtedness  and  not  in 
contemplation  thereof,  made  payable,  in  case 
of  the  debtor's  death,  to  his  wife  and  chil- 
dren, althoug'  he  had  power  to  change  the 
beneficiari-'b*  and  in  case  he  lived  r-'t  the 
term  of  the  policies,  the  amounts  due  on 
them  were  payable  to  him.  National  Bank 
V.  Appel  Clothing  Co.  4:  456,  83  Pac.  965, 
35  Colo.  149.  (Annotated) 
Digest   1-52  KB.A.(N.S.) 


16.  The  interest  of  one  who,  living  at 
the  death  of  testator,  is  a  beneficiary  in  a 
will  giving  the  income  of  property  to  his 
father  for  life,  and,  upon  the  father's  death, 
giving  the  property  to  him  if  living,  may  be 
reached  by  a  creditors'  bill.  Clarke  v.  Fay, 
27:  454,  91  N.  E.  328,  205  Mass.  228. 

(Annotated) 

17.  A  creditors'  bill  will  not  lie  to  reach 
an  interest  under  a  will  whi^h  depends  upon 
an  aunt  of  the  beneficiary  dying  without 
issue  after  the  death  of  the  father  of  the 
beneficiary,  and  while  the  beneficiary  is  yet 
alive.  Clarke  v.  Fay,  27:  454,  91  N.  E.  328, 
205    Mass.    228. 

18.  The  court  has  power  to  ascertain  the 
value  of  the  interest  of  one  who  is  be- 
queathed certain  property  in  case  he  sur- 
vives his  father,  although  its  amount  may 
be  changed  by  the  death  before  distribution 
of  other  possible  distributees,  or  the  birth 
of  other  children  to  his  father  so  as  to 
bring  it  within  the  operation  of  a  statute 
permitting  creditors  to  reach  such  interests. 
Clarke  v.  Fay,  27:  454,  91  N.  E.  328,  205 
Mass.  228. 

19.  The  contract  of  a  husband  and  wife 
to  support  his  father  in  their  family  and 
furnish  him  with  a  stated  sum  per  year 
during  his  life  is  a  personal  contract,  and 
the  rights  of  the  father  under  the  contract 
cannot  be  subjected  by  a  court  of  equity  to 
the  payment  of  a  judgment  against  him. 
Valparaiso  State  Bank  v.  Schwartz,  42: 
1213,  138  N.  W.  757,  92  Neb.  575. 

( Annotated ) 

20.  Where  the  consideration  for  a  con- 
tract to  support  a  father,  by  a  son  and  his 
wife,  is,  on  the  part  of  the  father,  the  con- 
veyance of  his  homestead  to  a  third  party, 
who  in  turn  conveys  real  estate  to  the  son 
and  his  wife,  upon  which  the  father  re- 
tains a  lien  to  secure  the  performance  of  the 
contract,  the  father's  interest  in  the  proper- 
ty so  conveyed  to  the  son  and  wife  will  not 
be  subjected  to  the  payment  of  a  judgment 
upon  an  indebtedness  incurred  after  the 
transfer  of  the  property  to  the  husband  and 
wife.  Valparaiso  State  Bank  v.  Schwartz, 
42:  1213,  138  N.  W.  757,  92  Neb.  575. 

IV.  Liens;  priorities  between  creditors. 

(See  same  heading  in  Digest  L.R.A.  1—70.) 
V.  Decree;  relief  generally. 

(See  same  heading  in  Digest  L.R.A.  1—10.) 


CItEMATORIES. 


Constitutionality  of   regulations  as  to,   see 

CONSTITTTTIONAL    LaW,    373. 

Judicial  notice  of  method  of  operating,  see 
Evidence,  24. 

Contraction  of  debt  by  city  for,  see  Munici- 
pal   CORPOBATIONS,    275. 


(90 


CREOSOTE— CEIl^nNAL  LAW. 


CREOSOTE. 


Duty  to  warn  servant  handling  timber  treat- 
ed with,  see  Master  and  Servant,  219, 
220. 

Liability  for  injury  by  fumes  of,  see  Neg- 
LKilENCE,  38. 

Fumes  arising  from  creosote  paving  blocks 
as  nuisance^  see  Nuisances,  199. 


CRIME. 

Injunction  against,  see  Injunction,  I.  d. 

Charge  of,  as  libel,  see  Libel  and  Slander, 
II.  b. 

Misappropriation  of  money  amounting  to 
criminal  offense  as  natural  consequence 
of  failure  to  use  due  care  in  recommend- 
ing broker,  see  Proximate  Cause,  154. 

Suicide  as,  see  Suicide, 

In  general,  see  Cbimi*(Al  Law. 


CRIME  AGAINST  NATURE. 

Indictment  for,  see  Indictment,  etc.,  99. 
In  general,  see  Sodomy. 


CRIMINAL  ASSAULT. 

See  Assault  and  Batteet. 


,  /         CRIMINAL  CONSPIRACY. 

See  Conspiracy;  Monopoly  and  Combina- 
tions. 


CRIMINAL  CONTEMPT. 

See  Contempt,  13-14,  66,  95,  106. 


CRIMINAL  CONVERSATION. 

Validity  of  agreement  in  settlement  of  cause 

of  action  for,  see  Contracts,  494. 
Damages  for,  see  Damages,  637. 
Mode  of  proving  marriage  in  action  for,  see 

Evidence,  2203. 
Husband's  right  of  action  for,  see  Husband 

Axn  Wife,  161. 
Wife's  right  of  action  for,  see  Husband  and 

Wife,  191. 


f>»B    ,0-i 


CRIMINAL   INTENie.' 


if:h'r!'i. 


As  element  of  crime,   see  Criminal  Law, 

8-18. 
Presumption  and  burden  of  proof  as  to,  see 

Evidence,  II.  e,  6. 
Digest  1-52  L.R.A.(N.S.) 


Allegation  of,  see  Indictment,  etc.,  II.  b. 
Question  for  jury  uh  to,  see  Trial,  292,  293. 


■♦•» 


CRIMINAL  LA^V. 


J.  Criminal   liability,    1—59. 

a.  In  general,  1—23. 

b.  Capaeitif  to  commit;  irrespon- 

sihilit}/,  24—42. 

c.  Attempts,   43—47. 

d.  Solicitation. 

e.  Parties    to    offenses,    48—56. 

f.  Instigation   or  consent,   as  de- 

fense; entrapment,  57—59. 
II.  Procedure,   60-220. 

a.  In  general,   60—71. 

6.  Protection    and   rights    of    ac- 
cused generally,    72—131. 

c.  Warrant;  commitment,    132. 

d.  Necessity    of   indictment,    pre- 

sentment     or      information, 
133-144. 

e.  Concurrent  proceedings. 

f.  Pleading;  motions;  demurrer, 

145—166. 

g.  Form^er  jeopardy,    167—220. 

1.  In  general,    167—205. 

2.  Different   offenses;    differ- 

ent  modes   of  describing 
same  act,  206—220. 
h.  Determining     sanity     of     ac- 
cused; proceeding  with  trial. 
III.  Offenses      against     different     sov- 
ereignties, 221—225. 
IV.  Sentence  and  imprisonment,  226— 
314. 

a.  In  general,  226—237. 

b.  Cruel    and    unusual    punish- 

ment, 238—244. 

c.  Extent  of  punishment  general- 

ly;  excessive  fines,  245—251. 

d.  Time  of  imprisonment;  cumu- 

lative      and       indeterminate 
sentences,   252—264. 

e.  Place  of  imprisonment. 

f.  Punishment  of  second  offenses 

and  habitual  criminals,  265— 
269. 

g.  Suspension     or    stay    of    sen- 

tence;     time      of      imposing, 
270-288. 
h.  Parole;       reprieve;       pardon, 
289-314. 

1.  In  general,  289—302. 

2.  Conditional,    303—314. 

V.  Record;     validity     of     conviction, 

315-317. 

,) 

Various  particular  crimes,  see  Abduction 
and  Kidnapping;  .  Abortion;  Adul- 
tery; Animals,  II.;  Aksox:  Assault 
and  Battery  ;  Banks,  VII. ;  Bastardy  ; 
Betting;  Bigamy;  Blasting,  10-12; 
Breach  of  Peace;  Bringing  Stolen 
GtOODS  into  State;  Buildings,  26; 
Burglary;  Carriers,  III.  !c;  Carrying 
Weapons:  Cigarettes;  Disorderly 
Houses;  Disturbing  Meeting;  Drugs 
AND  Druggists,  1;  Elections,  III.  d; 
Embezzlement;  Extortion;  False 
i.K  A!.jr:.H...l   uc  -I   jj.-;:i 


CRIMINAL  LAW. 


791 


Pretenses;  Forgeby;  Game  Laws; 
Gaming;  Homicide;  Husband  and 
Wife,  IV.;  Incest;  Infants,  10-14, 
16-18;  Intoxicating  Liquors,  III.; 
Larceny;  Lottery;  Malicious  In- 
jury; Malicious  Mischief;  Mayhem; 
Monopoly  and  Combinations;  Nui- 
sances, III.;  Obscenity;  Obstructing 
Justice  ;  Perjury  ;  Pe:rvebsion  of  Jus- 
tice; Pointing  Weapon;  Postoffice, 
III.;  Prostitution;  Rape;  Receiving 
Stolen  Property;  Robbery;  Seduc- 
tion, 11. ;  Smuggling;  Sodomy;  ^vi- 
cide  ;  Trespass,  II. ;  Warehousemen,  3. 
Question  whether  action  is  civil  or  criminal, 

see  Action  or  Suit,  59-69. 
Appeal  in  criminal  contempt  case,  see  Ap- 
peal AND  Error. 
As  to  arrest,  see  Arrest. 
Disbarment  of  attorney  for  crime,  see  At- 
torneys, 14-18,  24,  29. 
Duty  of  Attorney  General  to  prosecute  li- 
<'luor  case  at  request  of  Governor,   see 
Attorney  General,  3. 
Right  of  attorney  compelled  to  defend  in- 
digent person  to  recover  compensation 
from  public,  see  Attorneys,  59. 
Statute   making   criminal,    issue   of   bill   of 
lading  unless  goods  have  actually  been 
received,  see  Bills  of  Lading,  6. 
Statute  making  it  criminal  to  jump  on  or 
off  railway  cars,  engines,  etc.,  see  Car- 
riers, 992,  993. 
Indictment  of  carrier  for  exacting  excessive 

fares,  see  Carriers,  1025. 
Statute  making  giving  or  acceptance  of  rail- 
road pass  a  criminal  offense,  see  Car- 
biers,  1059,  1062,  1063,  1067,  1068. 
Statute  making  giving  of  rebate  a  criminal 

offense,  see  Carriers,  1072-1076. 
Right  of  convicted  person  to  maintain  action 
against  witness   for   negligently  giving 
false  evidence,  see  Case,  7. 
Status  of  convict,  see  Civil  Death. 
Effect  of  adoption  of  common  law  on  Can- 
adian criminal  code,  see  Common  Law, 
1. 
Compounding      crime,      see      Compounding 

Crime. 
Enforcing  penal  statute  of  other  state,  see 

Conflict  of  Laws, 
Conflict  of  laws  as  to  crime,  see  Conflict 

op  Laws,  I.  e,  3. 
Conspiracy  to  commit  crime,  see  Conspir- 
acy. 
Effect  on  pending  informations  of  adoption 
of  constitutional  amendment,  see  Con- 
stitutional Law,  15. 
Making   criminal   violation   of   rules   as   to 
street  car  transfers,  see  Constitution- 
al Law,  76. 
Making    payment    of    less    than    prescribed 
wage   to   teachers   a   penal   ofi'ense,   see 
Constitutional   Law,    627;    Schools, 
31. 
Forbidding  publication  of  details  of  crimi- 
nal execution,  see  Constitutional  Law, 
753. 
Ew   post   facto   laws,    see    Constitutional 

Law,  I.  b,  1. 
Digest  1-52  I..R.A.(N.S.) 


Equal  protection  and  privileges  in  criminal 
matters,  see  Constitutional  Law,  II. 
a,  8. 

Due  process  as  to  criminal  matters,  see  Con- 
stitutional Law,  570-573. 

Police  power  as  to  crime,  see  Constitution- 
al Law,  II.  c,  5. 

Contempt  by  person  on  trial  for  crime,  see 
CONTEaiPT,    1. 

Criminal  contempt,  see  Contempt,  13-14,  66, 
95,  106. 

Validity  of  contract  to  detect  crime,  see 
Contracts,  459. 

Liability  for  injury  committed  by  convict, 
see  Convicts,  1,  2. 

Criminal  liability  of  corporation,  see  Cor- 
porations, 124-130. 

Costs  of  criminal  prosecution,  see  Costs 
AND  Fees,  8,  9,  12. 

Recovery  of  fees  by  counsel  appointed  to  de- 
fend one  accused  of  crime,  see  Coun- 
ties, 16-18,  29. 

Discretion  of  courts  in  applying  penal  stat- 
ute, see  Courts,  116. 

Injunction  against  criminal  proceedings,  see 
Courts,  272;  Injunction,  298-309; 
Judgment,  122. 

Decision  of  criminal  court  as  rule  of  de- 
cision, see  Courts,  304. 

Delinquent  children,  see  Delinquent  Chil- 
dren; Juvenile  Offenders. 

District  attorneys,  see  District  and  Pbose- 
cuting  Attorneys. 

Criminal  liability  of  father  for  failure  to 
support  children  after  divorce,  see  Di- 
vorce and  Separation,  158. 

Threat  to  bring  criminal  prosecution,  as  du- 
ress, see  Duress,  8-15. 

Effect   of   conviction   of   crime   on   right  to 
.    vote,  see  Elections,  7,  8. 

Criminal  liability  of  discharged  convict  for 
registering  as  voter,  see  Elections, 
86. 

Escape  from  jail  as  a  criminal  offense,  see 
Escape. 

As  to  extradition,  see  Extradition. 

Civil  liability  for  false  arrest  and  imprison- 
ment, see  False  Imprisonment, 

Grand  jury,  see  Grand  Jury. 

Habeas  corpus  to  secure  release  of  prisoner, 
see  Habeas  Corpus. 

Violation  of  quarantine,  see  Health,  11. 

Misdemeanor  in  obstructing  highway,  see 
Highways,  86. 

Failure  to  perform  road  work  as  a  crime,  see 
Highways,  141-146. 

Trial  on  holiday  of  one  accused  of  crime,  see 
Holidays,  2. 

Responsibility  for  failure  to  furnish  medi- 
cal attendance  to  infants,  see  Infants, 
10-14. 

Criminal  liability  for  failure  to  support  chil- 
dren, see  Infants,  16-18. 

Injunction  against  acts  punishable  as  mis- 
demeanors or  felony,  see  Injunction, 
163-172;  Nuisances,  159-167. 

Injunction  against  criminal  proceedings,  see 
Injunction,  298-309;   State,  23. 

Duty  of  insurer  against  liability  for  auto- 
mobile accidents  to  defend  prosecution 


792 


CRIMINAL  LAW,  I.  a. 


against  insured  for  manslaughter 
growing  out  of  accident,  see  Insur- 
ance, !)41. 

Acquittal  on  criminal  charge  as  bar  to  civil 
action,  see  Judgment,  150. 

Acquittal  of  criminal  charge  as  bar  to  in- 
junction, see  Judgment,  195. 

Acquittal  in  criminal  prosecution  as  res 
judicata  in  civil  suit,  see  Judgment, 
194. 

Effect  of  acquittal  of  one  joint  defendant  as 
against  codefendant,  see  Judgment, 
223. 

Legislative  power  to  make  taking  of  usury 
a  crime,  s  'o  Legislature,  4. 

Enforcing  excise  tax  by  criminal  prosecu- 
tion, see  License,  131. 

Civil  liability  for  bringing  prosecution,  see 
Malicious  Prosecution. 

Penal  statute  as  to  time  of  payment  of 
wages,  see  Master  and  Servant,  76. 

Indefiniteness  of  ordinance  as  to  misdemean- 
ors, see  Municipal  Corporations,  85. 

Power  of  mvmicipality  to  employ  detective 
to  ascertain  whether  criminal  laws  are 
violated,  see  Municipal  Corporations, 
35. 

Effect  of  repeal  without  saving  clause  of 
penal  ordinance  upon  prior  conviction 
under  it,  see  Municipal  Corporations, 
52. 

Ordinance  making  misdemeanors  all  of- 
fenses which  are  misdemeanors  under 
laws  of  state,  see  Municipal  Corpora- 
tions, 85. 

Enforcing  rates  prescribed  by  ordinance  by 
criminal  penalty,  see  Municipal  Cor- 
porations, 221. 

Criminal  liability  of  municipality,  see  Mu- 
nicipal Corporations,  II.  j. 

Injury  to  one  of  two  parties  engaged  in  act 

(t  violating  penal  law,  by  negligence  of 
the  other,  see  Negligence,  205. 

Prohibition  against  criminal  prosecution, 
see  Prohibition,  1,  8,  15. 

Proximate  cause  of  injury  by  crime,  see 
Proximate  Cause,  159. 

Right  of  person  under  indictment  to  insti- 
tute proceedings  to  test  validity  of  or- 
ganization  bf   county,    see   Quo   Wab- 

BANTO,  11. 
Violation  of  criminal  statute  as  negligence, 

see  Railroads,  135. 
Penal  prosecution  against  railroad  company 

for  dangerous  speed  of  trains  at  street 

crossings,  see  Railroads,  165. 
Reward  for  criminal,  see  Reward. 
Sale  of  adulterated  confectionery,  see  Sale, 

25,  26. 
Residence   for   school   purposes  of   children 

committed  to  citizens  on  probation  by 

juvenile  court,  see  Schools,  8. 
Violation  of  compulsory  education  law,  see 

Schools,  13,  14. 
Search  of  accused  person,  see  Search  and 

Seizure. 
Injunction  to  restrain  enforcement  of  penal 

law  of  state,  see  State,  23. 
Ambiguity  in  penal  statute,  see  Statutes, 

35,  42-44. 
Strict    construction    of    penal    statute,    see 

Statutes,  189,  264-269. 
Digest  1-52  I..R.A.(N.S.) 


Forbidding  tapping  of  telephone  wires,  see 
Telephones,  2. 

Sufficiency  of  tender  of  fine  imposed  on  con- 
vict, see  Tender,  7. 

Witnesses  in  criminal  case,  see  Witnesses. 

Fees  of  witnesses  on  criminal  trial,  see  Wit- 
nesses, V. 

Exemption  from  service  of  process  of  non- 
resident present  iil  state  to  defend  crim- 
inal proceedings,  see  Writ  and  Proc- 
ess, 86,  87. 

I.  Criminal  liahility, 

a.  In  general. 

(See  also   same   heading  in  Digest   L.R  A. 

1-10.) 

Duress  as  defense  to  criminal  liability  for 
selling  pooled  tobacco  contrary  to  stat- 
ute, see  Duress,  6. 

Of  master  for  acts  of  servant  or  agent,  see 
Master  and  Servant,  893. 

Of  municipality,  see  Municipal  Corpora- 
tions, II.  j. 

1.  Mere  belief  on  the  part  of  an  express 
company  that  a  trans.,ction  by  which  it 
transports  and  delivers  intoxicating  liquor 
contrary  to  loc  '  law  is  interstate  commerce 
will  xir'  shield  it  from  punis!  .ent  if  it  is 
not  in  fact  such.  Adams  Exp.  Co.  v.  Com. 
5:  630,  92  S.  W.  932,  124  Ky.  160. 

2.  Naming  the  offense  is  not  necessary 
to  warrant  its  punisliment,  where  it  Is  de- 
scribed by  statute  sufficiently  to  justify  a 
resort  to  the  common  law  for  its  definition, 
although  no  common-law  offenses  are  recog- 
nized in  the  state.  State  v  Ayers,  10:  992, 
88  Pac.  653,  49  Or.  61.  •  ^ 

3.  Prescribing  a  punishment  for  an  act 
forbids  it,  within  the  meaning  of  a  statute 
providing  that  a  crime  is  an  act  forbidden 
by  law  and  to  which  is  annexed  upon  con- 
viction a  punishment.  State  v.  Central 
Lumber  Co.  42:  804,  123  N.  W.  504,  24  S. 
D.  136. 

4.  The  tearing  down  of  a  temporary 
"for  rent"  sign  from  a  building  is  not  with- 
in the  provisions  of  a  statute  making  it  a 
misdemeanor  to  cut  or  destroy  timber  or 
trees,  or  sever  from  the  freehold  anything 
attached  thereto.  Whipple  v.  (Jorsuch, 
10:  1133,  101  S.  W.  735,  82  Ark.  252. 

5.  The  existence  of  a  preliminary  order 
enjoining  the  enforcement  of  a  statute  re- 
lating to  the  inspection  of  oil  pending  a 
suit  to  test  the  constitutionality  of  the 
statute  does  not  relieve  one  who  makes 
sales  in  violation  of  the  terras  of  the  stat- 
ute from  prosecution  thereunder,  if  the 
statute  is  ultimately  held  to  be  valid.  State 
V.  Wadhams  Oil  Co.  40:  607,  134  N.  ^. 
1121,  149  Wis.  58. 

Unwritten  laixr. 

6.  What  is  known  as  the  'Tiigher  law" 
has  no  place  in  the  jurisprudence  of  Okla- 
homa. Litchfield  v.  State,  45:153,  126  Pac. 
707,  8  Okla.  Crim.  Rep.  104. 


CRIMINAL  LAW,  I.  a. 


793 


What  lax7  in  point  of  time  governs. 

What  law  governs  as  to  length  of  imprison- 
ment, see  infra,  254. 
7.  One  cannot  be  punished  for  selling 
intoxicating  liquor  at  a  time  when  the  pro- 
hibitory law  is,  by  decision  of  the  highest 
court  of  the  state,  unconstitutional,  al- 
though that  court  subsequently  changes  its 
opinion  and  holds  the  law  to  be  valid.  State 
V.  O'Neil,  33:  788,  126  N.  W.  454,  147  Iowa, 
513.  (Annotated) 

Intent;  motive;  kno\rledge. 
Intent  as  element  of  assault,  see  Assault 

AND  Battery,  3,  22-25. 
Intent  as  necessary  element  of  violation  of 
statute     against     illegal     voting,     see 
Elections,  58. 
Presumption    as    to    intent,    see    Evidence, 

255-257. 
Suflficiency  of  evidence  to  show  malice,  see 

Evidence,  2096. 
In  case  of  forgery,  see  Forgeby,  10. 
Intent  as  element  of  homicide,  see  Homi- 
cide, 24-32. 
Illegal   sale   of   liquor   to   minor   in   ignor- 
ance of  his  age,  see  Intoxicatii^q  Li- 
quors, 155. 
Intent   as   necessary   element   of   offense   of 
pointing   gun,   see   Pointing   W^eapon. 
Question  for  jury  as  to  intent,  see  Trial, 

292,   293. 
Instructions  as  to,  see  Trial,  825,  929. 
See  also  infra,  24;   Intoxicating  Liquors, 
103. 

8.  In  criminal  law  "malice"  may  de- 
note that  condition  of  the  mind  which  is 
manifested  by  the  intentional  doing  of  a 
wrongful  act  without  just  cause  or  excuse, 
Alt  v.  State,  35:  1212,  129  N.  W.  432,  88 
Neb.   259. 

9.  In  a  trial  for  bigamy  under  a  statute 
which  does  not  make  intent  an  element  of 
the  crime,  it  is  no  defense  for  accused  to 
prove  he  acted  in  good  faith  on  advice  of 
counsel  that  a  former  marriage  to  his  cousin 
was  void,  and  that  a  deputy  county  attorney 
threatened  him  with  prosecution  for  living 
with  her,  where  such  former  marriage  is 
valid.  Staley  v.  State,  34:  613,  131  N.  W. 
1028,   89   Neb.    701.  (Annotated) 

10.  Criminal  intent  is  not  an  element 
of  the  offense  under  a  statute  making  guil- 
ty of  larceny  one  who,  having  possession  of 
state  funds,  converts  them  to  his  own  use. 
State  v.  Ross,  42:  601,  104  Pac.  596,  106 
Pac.  1022,  55  Or.  450. 

11.  A  criminal  intent  to  violate  the  El- 
kins  act  (act  February  19,  1903,  chap.  708, 
32  Stat,  at  L.  847 ;  U.  S.  Comp.  Stat.  Supp. 
1905,  p.  599),  forbidding  the  giving  or  re- 
ceiving of  a  rebate  or  concession  from  the 
established  rate  for  the  transportation  of 
goods,  is  disclosed  where  the  shipper*  knew 
that  it  was  receiving,  and  intended  to  se- 
cure, a  conces.sion  whereby  its  property  was 
transported  in  foreign  commerce  at  a  less 
rate  than  that  legally  filed  and  published. 
Armoiir  Packing  Co.  v.  United  States,  14: 
400,  153  Fed.  1,  82  C.  C.  A.  135. 

12.  Religious  belief  is  no  excuse  for  vio- 
lation of  a  statute  making  it  a  misdemean- 
Digest   1-52  L.R.A.(N.S.) 


I  or  not  to  furnish  medical  attendance  to  a 
child.  Owens  v.  State,  36:  633,  IKi  Pac. 
345,  6  Okla.  Crim.  Rep.  110.        (Annotated) 

13.  A  statute  making  it  a  misdemeanor 
to  buy  or  receive  fittings  which  have  been 
imlawfully  removed  from  railway  tracks  or 
cars,  without  knowledge  of  the  facts,  is  un- 
constitutional. Kilbourne  v.  State,  35:  766, 
95  N.  E.  824,  84  Ohio  St.  247. 

14.  Knowledge  of  the  age  of  the  person 
named  in  the  comi^laint  is  not  essential  to 
the  violation  of  a  statute  forbidding  the 
owner,  keeper,  or  manager,  of  a  dance  house 
to  permit  any  person  under  twenty-one 
years  of  age  to  be  or  remain  therein,  when 
not  so  provided  by  the  statute.  State  v. 
Rosenfield,  29:  331,  126  N.  W.  1068,  111 
Minn,  301. 

15.  Under  a  statute  making  it  a  penal 
offense  to  unite  "in  wedlock  any  of  the  per- 
sons whose  marriage  is  declared  invalid" 
by  a  statute  which  is  directed  against  mar- 
riages between  persons  within  the  prohibit- 
ed degrees  of  consanguinity,  and  males  un- 
der eighteen  and  females  under  fifteen, 
knowledge  by  the  officiating  officer  tliat  a 
female  whom  he  has  united  in  marriage  was 
under  fifteen  years  of  age  is  not  an  essen- 
tial element  of  the  ofl'ense.  Territory  v. 
Harwood,  29:  504,  110  Pac,  556,  15  N.  M. 
424.  (Annotated) 

16.  That  a  girl  falsely  represented  her- 
self to  be  over  eighteen  years  of  age,  that 
her  appearance  warranted  defendant  in  so 
believing,  and  that  he  did"  so  believe,  will 
not  release  him  from  liability,  under  a  stat- 
ute making  it  a  misdemeanor  to  harbor  any 
female  under  the  age  of  eighteen  years  for 
the  purpose  of  sexual  intercourse,  for  so 
harboring  such  girl,  as  intent  and  knowl- 
edge are  not  essential  elements  of  the  crime, 
especially  wnere  the  harboring  of  any  female 
for  such  purpose  is  unlawful.  Brown  v. 
Statef  25:661,  74  Atl.  836,  7  Penn.  (Del.) 
159. 

17.  In  a  prosecution  for  selling  grain  in 
violation  of  a  statute  forbidding  any  per- 
son operating  a  warehouse  to  sell  or  per- 
mit to  be  removed  beyond  his  custody  any 
grain  for  which  a  receipt  has  been  given  by 
him  without  the  written  assent  of  the  hold- 
er of  such  receipt,  the  defendant  cannot 
show  that  he  had  contracted  to  purchase 
the  grain  alleged  to  have  been  illegally  sold, 
and  that  he  thought  he  had  a  right  to  sell 
and  dispose  of  it,  as  the  motive  or  intent 
with  wliich  the  sale  was  made  is  immaterial, 
it  being  sufficient  that  the  act  itself  was 
done  voluntarily, — at  least,  where  the  stat- 
ute itself  is  silent  on  the  subject  of  intent. 
State  V.  Henzell,  27:  159,  107  Pac.  07.  17 
Idaho,    725.  (Annotated) 

18.  Ignorance  on  the  part  of  a  waiter 
at  a  lunch  counter  that  material  furnished 
by  him  as  butter  is  in  fact  oleomargarine 
will  not  absolve  him  from  liability  to 
punishment  under  a  statute  providing  for 
punishment  of  anyone  who  furnishes  oleo- 
margarine for  butter  without  first  inform- 
ing the  customer  of  the  fact.  State  v. 
Welch,  32:  746,  129  N.  W.  656,  145  Wis. 
86.  (Annotated) 


794 


CRIMINAL  LAW,  I.  b. 


Continning  crimes. 

19.  Under  a  statute  defining  the  practice 
of  medicine  as  prescribing  or  recommending 
for  a  fee  any  drug  or  medicine,  or  using 
the  word  or  letters  "Dr.,"  "Doctor,"  "M.  D.," 
or  any  otlier  title  which  in  any  way  repre- 
sents one  as  engaged  in  the  practice  of  medi- 
cine, or  representing  or  advertising  one's 
self  as  authorized  to  practise  medicine;  and 
providing  a  penalty  for  the  practice  without 
having  received  and  recorded  a  certificate 
from  the  board  of  registration  and  examina- 
tion,— one  who  has  set  himself  up  to  prac- 
tise medicine  without  the  required  certifi- 
cate may  be  convicted  as  for  separate  of- 
fenses for  opening  an  office  and  placing  a 
sign  over  the  door  indicating  that  he  is  au- 
thorized to  practise  medicine,  and  also,  for 
each  specific  act  of  practice  by  treating  dif- 
ferent persons,  although  two  such  treat- 
ments occur  on  the  same  day.  State  v. 
Cotner,   42:  768,   127   Pac.    1,   87   Kan.   864. 

(Annotated) 

20.  One  who  fraudulently  disposes  of 
property  and  omits  it  from  his  bankruptcy 
schedule  for  more  than  twelve  months  be- 
fore his  indictment  for  fraudulent  conceal- 
ment of  the  property,  cannot,  on  the  theory 
that  the  concealment  was  a  continuing  of- 
fense, be  punished  therefor,  in  view  of  the 
provision  of  the  bankruptcy  act  that  the  in- 
dictment must  be  found  within  one  year 
after  the  commission  of  the  ofi'ense  if  he 
did  nothing  after  filing  his  schedule  except 
to  remain  passive.  Warren  v.  United 
States,  43:  278,  199  Fed.  753,  118  C.  C.  A. 
191.  (Annotated) 

21.  One  who  takes  from  different  recep- 
tacles in  the  same  room,  as  one  continuous 
transaction,  a  watch  belonging  to  one  per- 
son and  money  belonging  to  another,  can 
be  convicted  of  but  one  offense.  State  v. 
Sampson,  42:  967,  138  N.  W.  473,  157  Iowa, 
257.  (Annotated) 

22.  Several  sales  by  a  merchant  on  the 
Lord's  Day  constitute  but  one  offense  under 
a  statute  providing  a  penalty  for  exercising 
one's  ordinary  trade  on  that  day.  State  v. 
James,  18:  617,  62  S.  E.  214,  81  S.  C.  197. 

23.  Only  one  conviction  can  be  secured 
for  giving  several  performances  in  the  thea- 
ter on  Sunday,  under  a  statute  providing 
that  any  proprietor  of  any  place  of  amuse- 
ment who  shall  permit  it  to  be  open  on  that 
day  shall  be  fined.  Muckenfuss  v.  State, 
20:  783,  116  S.  W.  51,  65  Tex.  Grim.  Rep. 
229.  (Annotated) 

ft.  Capacity  to  commit  f  irresponsihility. 

(See  also  same  heading  in  Digest  LM.A. 
t-tO.)  n-"n.i  . 

Criminal  liability  of  corporation,  see  CoBPO- 
BATIONS,  124-130. 

Effect  of  statute  fixing  age  of  consent  to 
render  girl  under  age  incapable  of  com- 
mitting sexual  crime,  see  Witnesses, 
129. 

Digest  1-52  L.R.A.(N.S.) 


Insanity;  irresistible  impulse. 

Attempt  to  deprive  accused  of  defense  of 
insanity,  see  Constitutional  Law, 
581. 

Presumption  and  burden  of  proof  as  to 
sanity,  see  Evidence,  221-223. 

Sufficiency  of  presumption  of  sanity  to  sup- 
port conviction,  see  Appeal  and  Ebbob, 
930. 

Opinion  evidence  as  to  insanity,  see  Evi- 
dence, VII.  e. 

Evidence  generally  on  question  of  sanity, 
see  Evidence,  1602-1606. 

Sufficiency  of  proof  of  sanity,  see  Evi- 
dence, 2358-2361. 

Right  to  show  insanity  of  accused  in  pro- 
ceedings for  extradition,  see  Extba- 
DiriON,  4. 

Forgery  as  evidence  of  insanity,  see  Incom- 
petent Pebsons,  1. 

Conclusiveness  of  decision  on  special  issue 
as  to  insanity,  see  Judgment,  89. 

Right  to  have  question  of  sanity  tried  by 
jury,  see  Juby,  29,  63. 

Insanity  as  question  for  jury,  see  Tbial, 
238-241. 

Instructions  as  to,  see  Trial,  908,  914,  915. 

24.  An  insane  person  cannot  legally  be 
guilty  of  a  criminal  intent.  State  v.  Brown, 
24:  545,  102  Pac.  641,  36  Utah,  46. 

25.  The  term  "insanity"  in  the  law, 
means  such  an  abnormal  condition  of  the 
mind,  from  any  cause,  as  to  render  the 
afflicted  one  incapable  of  distinguishing  be- 
tween right  and  wrong  in  the  given  in- 
stance, and  so  rendering  him  unconscious 
of  the  punishable  character  of  his  act. 
Oborn  v.  State,  31:  966,  126  N.  W.  737,  143 
Wis.  249. 

26.  A  person  is  not  immune  from  pun- 
ishment for  a  wrongful  act  if  he  has,  at 
the  time  of  perpetrating  it,  capacity  to  dis- 
tinguish between  right  and  wrong  in  re- 
spect thereto, — if  he  has  such  capacity  and 
is  conscious  of  the  wrongfulness  of  his  con- 
duct. Oborn  v.  State,  31:  966,  126  N.  W. 
737,  143  Wis.  249. 

27.  Under  a  statute  making  all  persons 
capable  of  committing  crime  except  luna- 
tics, insane  persons,  persons  of  unsound 
mind,  including  persons  temporarily  or  par- 
tially deprived  of  reason,  upon  proof  that 
at  the  time  of  committing  the  act  charged 
against  them  they  were  incapable  of  know- 
ing its  wrongfulness,  the  test  of  criminal 
responsibility  for  committing  an  act  which 
is  declared  to  be  a  crime  is  fixed  at  the 
point  where  the  accused  has  mental  ca- 
pacity to  distinguish  between  right  and 
wrong  as  applied  to  the  particular  act,  and 
to  understand  the  nature  and  consequences 
of  such  act.  Alberty  v.  State,  52:  248,  140 
Pac.  1025,  10  Okla.  Crim.  Rep.  616. 

28.  A  statutory  provision  that  an  act 
done  by  a  person  in  a  state  of  insanity  can- 
not be  punished  as  a  public  offense  does  not 
in  effect  modify  a  previous  statutory  pro- 
vision that  insane  persons,  if  at  the  time 
of  committing  the  act  charged  against 
them  were  incapable  of  knowing  it3  wrong- 
fulness,   are    incapable    of    committing    a 


CRIMINAL  LAW,  I.  c. 


795 


crime;  but  under  these  provisions  tlie  test 
of  criminal  responsibility  is  the  mental 
capacity  to  distinguish  between  right  and 
wrong  as  applied  to  the  particular  act,  and 
to  understand  the  nature  and  consequences 
of  sucli  act,  or  to  know  its  wrongfulness, 
and  the  defendant  is  not  criminally  re- 
sponsible if,  by  reason  of  insanity,  he  did 
not  have  the  will  and  mental  power  to 
refrain  from  committing  the  act.  Adair  v. 
State.  44:  119,  118  Pac.  416,  6  Okla.  Crim. 
Rep.  284. 

29.  Insanity  of  a  murderer  cannot  be 
predicated  merely  on  the  atrocity  of  the 
crime  and  the  fact  that  it  was  inspired  by 
a  sentimental  motive.  Turner  v.  State, 
15:  988,  108  S.  W.  1139,  119  Tenn.  663. 

30.  Delusional  insanity  or  uncontrollable 
impulse  is  not  a  defense  to  a  charge  of  mur- 
der unless  at  the  time  accused  was  unable 
to  distinguish  moral  right  from  wrong. 
Smith  V.  State,  27:  461,  49  So.  945,  95  Miss. 
786.  (Annotated) 

31.  That  one  accused  of  murder  is  a 
somnambulist,  and  while  in  this  state  is 
without  self-control,  and  commits  acts  of 
which  he  has  no  recollection,  and  that  his 
offense  was  committed  while  he  was  in  that 
state,  constitutes  no  defense  other  than 
that  embraced  in  a  plea  of  insanity.  Tibbs 
v.  Com.  28:  665,  128  S.  W.  871,  138  Ky. 
558. 

32.  Mental  disease,  or  temporary  de- 
thronement of  reason,  at  the  time  of  killing 
another,  will  prevent  one  from  being  guilty 
of  murder,  although  such  state  is  brought 
about  by  his  own  fault  in  yielding  to  anger 
or  passion.  Duthey  v.  State,  10:  1032,  111 
N.   W.  222,   131   Wis.   178.  (Annotated) 

33.  That  the  determination  to  commit 
murder  was  reached  during  a  period  of  sani- 
ty does  not  render  one  guilty  of  that  crime 
if  he  actually  became  insane  before  consum- 
mating the  act.  Duthey  v.  State,  10:  1032, 
111  X.  W.  222,  131  Wis.  178. 

34.  Insanity  superinduced  by  long-con- 
tinued intoxication,  and  known  as  "delirium 
tremens,"  renders  the  person  so  afflicted  ir- 
responsible for  the  commission  of  homicide, 
if  his  insanity  be  of  such  a  character  as  to 
deprive  him  of  the  power  to  distinguish  be- 
tween right  and  wrong,  whether  he  be  under 
the  influence  of  liquor  at  the  time  of  the 
commission  of  the  crime  or  not;  but  to  do 
so  his  afHiction  must  be  settled  or  fixed  in- 
sanity, and  not  a  mere  fit  of  drunkenness. 
State  V.  Kidwell,  13:  1024,  59  S.  E.  494,  62 
W.  Va.  466. 

35.  A  sane  person  who  voluntarily  be- 
comes intoxicated  to  such  an  extent  and  for 
such  a  period  of  time  as  to  cause  uncon- 
sciousness of  his  acts,  and  affliction  with 
delusions  and  hallucinations,  is  not  irre- 
sponsible, under  the  law,  for  a  homicide  com- 
mitted by  him  while  in  such  mental  condi- 
tion. State  V.  Kidwell,  13:  1024,  59  S.  E. 
494,  62  W.  Va.  466.  (Annotated) 

36.  An  irresistible  impulse  to  steal  is 
no  defense  to  an  indictment  for  burglary, 
if  accused  knew  the  difference  between  right 
and  wrong.  State  v.  Riddle,  43:  150,  150 
S.  W.  1044,  245  Mo.  451.  (Annotated) 
digest  1-52  L.R.A.(N.S.) 


Intoacication. 

Erroneous  instruction  as  to  effect  of  intoxi- 
cation on  liability  for  homicide,  see 
Appeal  and  Erbob,  863. 

Fear  induced  by  intoxication  as  defense  to 
killing  in  alleged  self-defense,  see  Homi- 
cide, 104. 

See  also  supra,  34,  35;  Teial,  914. 

37.  Intoxication  of  one  accused  of  homi- 
cide cannot  be  relied  upon  to  reduce  mur- 
der in  the  second  degree  to  voluntary  man- 
slaughter, although  it  is  a  proper  subject 
of  inquiry  in  determining  whether  the 
deliberate  premeditation  necessary  to  con- 
stitute murder  in  the  first  degree  is  pres- 
ent. State  v.  Cooley,  52:  230,  140  Pac. 
1111,  —  N.   M.   — .  (Annotated) 

38.  Drunkenness  so  extreme  as  to  pre- 
vent the  forming  of  a  purpose  to  kill  re- 
duces homicide  from  murder  to  manslaugh- 
ter under  a  statute  providing  that  to  con- 
stitute murder  an  intent  to  take  life  must 
precede  the  killing.  State  v.  Rumble,  25: 
376,  105  Pac.  1,  81  Kan.  16.         (Annotated) 

39.  That  drunkenness  may  have  rendered 
one  charged  with  a  homicide  incapable  of 
knovi'ing  the  nature  and  quality  of  his  act, 
or  of  distinguishing  between  right  and 
wrong,  does  not  constitute  a  defense  where 
no  specific  intent  is  necessary.  State  v. 
Rumble,  25:  376,  105  Pac.  1,  81  Kan.  16. 

40.  That,  at  the  time  of  committing  a 
homicide,  one  is  so  intoxicated,  as  the  re- 
sult of  the  use  of  ardent  spirits,  that  he 
does  not  know  what  he  is  doing,  does  not  re- 
lieve him  of  the  guilt  of  murder,  although  it 
may  have  some  effect  upon  the  degree  of  the 
crime.  Atkins  v.  State,  13:  1031,  105  S.  W. 
353,  119  Tenn.  458. 

41.  A  person  who,  being  sane  and  respon- 
sible for  his  acts,  voluntarily  becomes  in- 
toxicated, with  or  without  a  preconceived 
design  to  commit  murder  or  other  crime, 
and,  while  intoxicated,  though  it  be  to  such 
a  degree  as  to  render  him  wholly  oblivious 
to  his  acts  or  conduct,  commits  a  homicide, 
or  does  any  other  act  which,  if  done  by  a 
person  capable  of  distinguishing  between 
right  and  wrong,  is  criminal,  if  not  excused  or 
justified  in  some  way,  is  held  responsible  by 
the  law  for  his  act,  notwithstanding  his 
mental  condition  at  the  time.  State  v. 
Kidwell,  13:  1024,  59  S.  E.  494,  62  W.  Va. 
466. 

42.  That  one  is  intoxicated  when  he 
commits  a  homicide  does  not  lessen  the  de- 
gree of  his  crime  if  he  deliberately  planned 
the  killing  and  became  intoxicated  to  nerve 
himself  up  to  the  commission  of  the  deed. 
Marshall  v.  Com.  31:379,  132  S.  W.  139, 
141  Ky.  222. 

o.  Attempts, 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.)  » 

To  commit  arson,  see  Abson,  3.  p 

To  commit  suicide,  see  Suicide,  2. 

43.  One  cannot  be  convicted  of  attempt- 
ed  subornation   of   perjury   for   attempting 


796 


CRIMINAL  LAW,  I.  d,  e. 


to  secure  false  testimony  which  is  so  imma- 
terial to  the  issue  that  the  witnos?  could 
not  have  been  convicted  of  perjury  had  he 
given  the  testimony  in  the  action.  People 
V.  Teal,  25:  120,  89  N.  E.  108G,  196  N.  Y. 
372.  (Annotated) 

44.  The  procurement  by  a  prisoner  of 
tools  adapted  to  jail  breaking  does  not  ren- 
de-'  him  guilty  of  an  a'tein|)t  to  break  jail. 
State  V.  Hurley,  6:  804,  64  Atl.  78,  79  Vt. 
28.  ( Annotated ) 

45.  An  offer  to  purchase  property  under 
the  belief  that  it  has  been  stolen,  but  which, 
although  it  had  been  stolen,  has  been  re- 
turned to  the  control  of  its  owner,  does  not 
render  one  liable  to  conviction  of  an  at- 
tempt t;)  receive  stolen  property,  under  a 
statute  providing  for  the  punishment  of  one 
who  receives  stolen  property  "knowing  the 
same  to  have  been  stolen."  People  v.  Jaffe, 
9:  263,  78  N.  E.  169,  185  N.  Y.  497. 

( Annotated ) 
To  commit  robbery. 

46.  A  prosecution  for  attempted  robbery 
will  not  fail  because  the  evidence  does  not 
show  whether  the  true  owner  of  the  prop- 
erty was  a  partnership  or  a  corporation, 
where  it  was  charged  to  be  the  property  of 
one  who  was  shown  to  be  rightfully  in  pos- 
session of  it,  since  he  has  sufficient  title 
to  support  a  conviction.  State  v.  Carroll, 
21:311,   113   S.  W.   1051,  214  Mo.   392. 

(Annotated) 
To  commit  murder. 

47.  An  overt  act  sufficient  to  convict  one 
of  attempt  to  murder  has  been  committed 
when  he  hires  another  to  commit  the  act, 
procures  a  loaded  gun,  and  goes  with  the 
person  hired,  to  the  point  where  they  are 
to  lie  in  wait  for  the  victim,  although  he 
is  arrested  before  the  victim  appears.  Stokes 
V.  State,  21:  898,  46  So.  627,  92  Miss.  415. 

( Annotated ) 

d.  Solicitation. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Instigation  as  a  defense,  see  infra,  I.  f. 

Application  of  rule  as  to  liability  for  so- 
liciting person  to  commit  a  felony  to 
solicitation  by  Indian  of  sale  of  liquor 
to  himself,  see  Intoxicating  Liquobs, 
114. 


Ni 


e.  Parties  to  offenses. 


(Bee  also   same   heading  in  Digest   L.R.A. 
1-10.) 

48.  All  persons  who  take  part,  partici- 
pate, or  engage  in  an  offense  are  guilty  as 

jL  principals,    and     it    is    immaterial     as    to 
f^  Jthether  they  have  any   interest  in  or   re- 
ive any  financial  gain  from  the  commis- 
on    of    such    crime.      Buchanan    v.    State, 
^:  83,  112  Pac.  32,  4  Okla.  Crim.  Rep.  645. 

49.  One  accepting  aid  to  escape  from 
jail  is  not  an  accomplice  of  the  one  who 
furnishes  it.  State  v.  Duff,  24:  625,  122 
N.  W.  829,  144  Iowa,  142.  (Annotated) 
Digest  1-52  Ii.R.A.(N.S.) 


Go-conspirators. 

50.  When  two,  in  furtherance  of  a  com- 
mon design,  enter  upon  thj  perpetration  of 
a  burglary,  armed  and  prepared  to  kill  if  op- 
posed, and  while  so  enj^aged  are  discovered, 
and  in  the  effort  to  escape  one  of  tiie  bur- 
glars kills  one  who  is  trying  to  arn.'st  him,, 
both  burglars  are  eoually  guilty  f  the  hom- 
icide, although  one  of  tliem  was  not  armed 
with  a  deadly  weapon,  and  ;  Itliough  such 
killing  was  not  part  of  the  prearranged 
plan.  Conrad  v.  State,  6:  1154,  78  N.  E.  957, 
75  Ohio  St.   52.  (Annotated) 

51.  One  who  accompanies  another  to  aid 
and  assist  him  in  assaulting  a  third  cannot 
escape  liability  for  manslaughter  if  his  com- 
panion kills  the  victim  by  the  use  of  a  dead- 
ly weapon,  on  the  theory  that  he  did  not 
know  of  the  intended  use  of  it  or  consent 
thereto.  State  v.  Darling,  23:272,  lir,  S. 
W.  1002,  216  Mo.  450.  (Annotated) 

52.  One  of  two  persons  who  confederate 
to  commit*  a  robbery  may  be  convicted  of 
murder  in  case  his  companion  kills  the  one 
upon  whom  the  felony  was  to  be  committed 
in  carrying  out  the  enterprise,  although  the 
killing  was  not  intended,  and  accused  only 
remained  to  watch  while  his  companion  at- 
tempted to  secure  the  money.  People  v. 
Friedman,  45:55,  98  N.  E,  471,  205  N.  Y. 
161.  (Annotated) 
Agent. 

Procuring  liquor  for  another  as  his  agent, 
as  illegal  sale,  see  Intoxicating  Li- 
quors, III.  c. 

W^here  sale  of  adulterated  confectionery  by 
agent  takes  place,  see  Sale,  25,  26. 

53.  The  fact  that  a  defendant  was  act- 
ing as  the  agent  of  another  in  the  com- 
mission of  an  offense  will  afford  no  excuse 
or  justification  for  the  act  in  a  prosecution 
therefor.  Alt  v.  State,  35:  1212,  129  N.  W. 
432,  88  Neb.  259. 

54.  The  law  of  agency  as  applied  in 
civil  cases  has  no  application  in  criminal 
cases,  and  no  man  can  escape  punishment 
when  he  participates  in  the  commission  of 
a  crime  upon  the  ground  that  he  simply 
acted  as  agent  for  any  party.  Buchanan 
v.  State,  36:  83,  112  Pac.  32,  4  Okla.  Crim. 
Rep.  645. 

PrincipaL 

55.  Under  a  statute  imposing  a  fine 
upon  one  who  distributes  or  causes  to  be 
distributed  free  or  trial  samples  of  medi- 
cine in  such  a  manner  that  children  may 
become  possessed  of  them,  a  person  is  liable 
to  fine  in  case  his  servant  employed  to  dis- 
tribute such  packages  delivers  one  to  a  child, 
although  it  is  done  against  the  express 
orders  of  the  employer.  State  v.  Cray,  36: 
630,  81   Atl.  450,  85  Vt.  99. 

Advice   and   encouragement. 

56.  A  railroad  company  does  not  become 
liable  to  punishment  as  an  accessory  for 
misdemeanor  by  counseling  its  agent  to 
violate  a  statute  fixing  maximiim  rates  for 
transportation,  which  act  is  made  a  mis- 
demeanor on  the  part  of  the  agent,  where 
the  slatute  pi'ovides  a  penalty  recoverable 
for  the  benefit  of  the  person  aggrieved,  for 
violation   of   the   act   by   the   railroad  com- 


CRIMINAL  LAW,  I.  f,  TI.  a. 


■[)7 


•pany.     State  v.  Southern  R.  Co.  13:  966,  59 
S.  E.  570,  145  N.  C.  495. 

/.  Instigation    or   consent,    as    defense; 
entrapment. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

57.  Consent  to  a  robbery,  so  as  to  ab- 
solve the  robber  from  criminal  liability,  is 
not  shown  by  merely  providing  one's  self 
with  money  which  may  be  taken,  and  going 
where  the  deed  may  be  done  in  anticipation 
of  the  commission  of  the  crime,  for  the 
purpose  of  apprehendincr  thf^  criminal. 
Tones  v.  State,  i:  1024,  88  S.  W.  217,  48  Tex. 
€rim.  Rep.   3G3. 

58.  One  cannot  escape  punishment  for 
illegal  sale  of  intoxicating  liquor  because 
it  was  made  to  one  employed  by  the  police 
department  to  procure  it,  such  department 
furnishing  the  money  to  pav  for  it.  State 
V.  Smith,  30:946,  67  S.  E.'SOS,  152  N.  C. 
798.  (Annotated) 

59.  A  conviction  of  unlawfully  selling 
intoxicating  liquor  may  be  based  upon  the 
testimony  of  the  police  officers  who  solicited 
the  sale,  where  it  is  apparent  that  it  was 
their  purpose  in  so  doing  to  ascertain  wheth- 
er defendant  was  engaged  in  an  unlawful 
business  rather  than  to  induce  or  solicit  the 
commission  of  crime.  State  v.  Gibbs,  25: 
449,  123  N.  W.  810,  109  Minn.  247. 

II.  Procedure. 

a.  In  general, 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  bail,  see  Bail  and  Recognizance. 

Certifying  questions  in  criminal  case,  see 
Cases  Certified,  4-6. 

Continuance  in  criminal  case,  see  Continu- 
ance AND  Adjournment. 

Jurisdiction  in  criminal  case,  see  Courts,  I. 
b,  2;  IL  a,  6;  III,  h. 

Jurisdiction  of  equity,  see  Equity,  2,  3. 

Jurisdiction  of  magistrate,  see  Justice  of 
the  Peace,  5-7. 

When  statute  of  limitations  begins  to  run 
against  criminal  prosecution,  see  Limi- 
tation OF  AcnoNS,  II.  f. 

When  prosecution  is  barred,  see  Limitation 
OF  Actions,  270,  271. 

Unreasonable  searches  and  seizures,  see 
Search  and  Seizure. 

Computation  of  time  in  criminal  case,  see 
Time,  5. 

Defense  to  prosecution  for  unlawfully  prac- 
tising medicine,  see  Physicians  and 
Surgeons,  15-17. 

Interference  with  constitutional  gviaranties 
as  to  criminal  procedure  by  statute  pro- 
viding for  care  of  delinquent  children, 
see  Infants,  3. 

Error  in  finding  accused  guilty  of  lower  de- 
gree than  that  established  by  evidence, 
see  Appeal  and  Error,  524. 

Right  to  appeal  in  criminal  case,  see  Ap- 
peal and  Error,  I.  c. 

Digest  1-52  L.R.A.(N.S.) 


Effect  of  escape  on  right  to  appeal,  sec 
Appeal  amd  Error,  93,  402. 

Question  whether  appeal  sliould  be  taken  to 
civil  or  criminal  court,  see  Appeal  and 
Error,  75. 

What  regarded  as  criminal  proceeding  for 
purpose  of  determining  method  of  re- 
view, see  Appeal  and  Error,  50. 

Amendment  of  record  on  appeal  in  criminal 
prosecution,  see  Appeal  and  Error, 
176. 

Sufficiency  of  bill  of  exceptions  on  appeal, 
see  Appral  and  Error,  246. 

Right  to  dismiss  criminal  case  on  appeal, 
see  Appeal  and  Error,  1576. 

Striking  appellant's  argument  on  appeal, 
see  Appeal  and  Error,  364. 

Effect  on  appeal  of  expiration  of  terra  of 
imprisonment,  see  Appeal  and  Error, 
393. 

Interpretation  of  record  on  criminal  appeal, 
see  Appeal  and  Error,  415. 

Who  may  complain  of  error  on  appeal,  see 
Appeal  and  Error,  421. 

What  questions  may  be  raised  by  accused 
upon  appeal  by  the  state,  see  Appeal 
AND  Error,  419. 

Presumptions  on  appeal,  see  Appeal  and 
Error,  473-479. 

Discretion  of  trial  judge  as  to  trial  of  ac- 
cused persons  jointly,  see  Appeal  and 
Error,  558. 

Error  in  compelling  counsel  to  make  open- 
ing statement  to  jury,  see  Appeal  and 
Error,  1485. 

Review  of  conviction  on  consolidated  indict- 
ments, see  Appeal  and  Error,  1538. 

Prejudicial  error  in  criminal  case  gener- 
ally, see  Appeal  and  Error,  104.3-1049. 

Effect  of  conviction  upon  family  of  defend- 
ant as  ground  for  reversal,  see  Appeal 
AND  Error,  1575. 

Motion  to  reconsider  opinion  on  appeal  be- 
fore it  is  certified  down,  see  Appeal 
AND  Error,  1670. 

Prejudicial  error  in  appointment  of  assist- 
ant prosecutor,  see  Appeal  and  Error, 
1479. 

Employment  of  private  counsel  to  assist 
prosecution,  see  Appeal  and  Error, 
362;  District  and  Prosecuting  At- 
torneys, 2,  3. 

Evidence  in  criminal  cases  generally,  see 
Evidence. 

Presumption  and  burden  of  proof,  see  Evi- 
dence, 94,  95,  102-109,  221-223,  689- 
698. 

Secondary  evidence  to  identify  record  of 
conviction,  see  Evidence,  731. 

Documentary  evidence,  see  Evidence,  772, 
778,  779,  784,  806,  808,  817,  820,  834, 
837,  838,  840,  843,  877. 

Demonstrative  evidence,  see  Evidence,  880, 
882,  883,  885,  891. 

Opinion  evidence,  see  Evidence,  VII. 

Hypothetical  questions  to  expert  witnesses, 
8«e  Evidence,  1071. 

Admissibility  of  finger  prints  as  evidence, 
see  Evidence,  1176-1179. 

Admissibility  of  admissions  by  accused,  see 
Evidence,  1239-1242. 


708 


CRIMINAL'  LAW,  II.  a. 


Evidence  of  admissions  by  attorney,  see 
Evidence,  1254,  1255. 

Evidence  as  to  declarations  or  acts  of  ac- 
cused, see  Evidence,  1353-1359. 

Evidence  as  to  acts  and  declarations  of  third 
persons,  generally,  see  Evidence,  1384, 
1385,  1397-1407. 

Evidence  of  complaint  of  sufTering  by  de- 
ceased on  trial  for  homicide,  see  Evi- 
dence, 1476. 

Evidence  as  to  character  or  reputation  of 
accused,  see  Evidence,  1551-1557. 

Evidence  as  to  character  and  reputation  of 
person  killed,  see  Evidence,  1560-1667. 

Evidence  as  to  character  or  reputation  of 
person  assaulted,  see  Evidence,  1568- 
1572. 

Evidence  as  to  chastity,  see  Evidence,  1575, 
1576. 

Evidence  as  to  knowledge  or  notice,  see 
Evidence,  1592,  1593. 

Evidence  on  question  of  mental  responsi- 
bility, see  Evidence,  1602-1606. 

Evidence  as  to  intent  or  purpose,  see  Evi- 
dence, 1633-1641. 

Evidence  as  to  motive,  see  Evidence,  1649- 
1657. 

Evidence  of  suggestive  facts,  see  Evidence, 
1824-1839. 

Evidence  of  other  crimes,  see  Evidence, 
1884,  1887-1915. 

Evidence  of  experiments,  see  Evidence, 
2020,  2021. 

Evidence  admissible  under  allegations,  see 
Evidence,  2447-2451. 

Variance  between  pleading  and  proof,  see 
Evidence,  2502-2512. 

Admissibility  of  evidence  wrongfully  ob- 
tained, see  Evidence,  VIII. 

Evidence  of  confessions,  see  Evidence,  VIII. 

Proof  of  acts  or  declarations  of  co-conspira- 
tors, see  Evidence,  X.  g. 

Evidence  of  threat,  see  Evidence,  X.  1. 

Admissibility  of  dying  declarations,  see  Evi- 
dence, X.  1. 

Explanation  and  rebuttal  in  criminal  case, 
see  Evidence,  XI.  1. 

Relevancy  of  evidence  generally,  see  Evi- 
dence, XI.  t. 

Sufficiency  of  evidence,  see  Evidence,  XII.  1. 

Effect  of  failure  to  object  to  question  asked 
witness  by  juryman,  see  Appeial  and 
Ebkob,  774. 

Raising  objection  to  evidence  for  first  time 
on  appeal,  see  Appeal  and  Error,  778, 
780. 

Review  of  discretion  as  to  admission  of  evi- 
dence, see  Appeal  and  Error,  609. 

Prejudicial  error  in  admission  of  evidence, 
see  Appeal  and  Error,  1119-1129, 
1150-1155,  1174^1177,  1187-1189,  1199. 

Prejudicial  error  in  exclusion  of  evidence, 
see  Appeal  and  Ebboe,  1229,  1246, 
1259,  1266-1268,  1274. 

Reception  of  evidence  on  trial,  see  Trial, 
23-26. 

As  to  order  of  proof  generally,  see  Tbial, 
37-39. 

Discretion  as  to  order  of  proof,  see  Appeal 
AND  Error,  653,  655. 

Prejudicial  error  as  to  order  of  proof,  see 
Appeal  and  Error,  1488. 

Digest   1-52  L..R.A.(M.S.) 


Striking  out  evidence,  see  Trial,  49,  51. 

Objections  to  evidence,  see  Trial,  81-83. 

Summoning  and  selection  of  jury  generally, 
see  Jury,  II. 

Prejudicial  error  in  summoning  and  selec- 
tion of  jury,  see  Appeal  and  Error, 
VII.  m,  7,  b. 

Prejudicial  error  in  conduct  of,  or  inter- 
ference with,  jury,  see  Appeal  and 
Error,  1505-1507. 

Swearing  jury  in  advance  of  arraignment 
and  plea  of  accused,  see  Appeal  and 
Error,  1502. 

Setting  aside  verdict  because  juror  was 
given  wrong  name,  see  Appeal  and 
Error,  1501. 

Permitting  jury  to  take  dying  declaration 
to  jury  room,  see  Appeal  and  Error, 
1477. 

Duty  to  declare  mistrial  where  juror  be- 
comes insane,  see  Appeal  and  Ebeob, 
1482. 

Communication  with  jurors  during  trial,  see 
Trial,  5,  6. 

Separation  oif  jury,  see  Appeal  and  Error, 
648,  649;  Trial,  11,  12. 

Discharge  of  jury,  see  Trial,  9. 

Waiver  of  error  in  failing  to  withdraw  jury, 
see  Appeal  and  Error,  810. 

Prejudicial  error  in  matters  as  to  jury  or 
conduct  of  trial  generally,  see  Appeal 
AND  Error,  1477-1482,  1485,  1488. 

New  trial  generally,  see  New  Trial. 

Review  of  discretion  as  to  new  trial,  see 
Appeal  and  Error,  671,  679,  680. 

New  trial  on  appeal,  see  Appeal  and  Errob, 
1624-1626. 

Submission  of  case  or  question  to  jury,  see 
Trial,  II. 

Directing  verdict  in  criminal  case,  see  TriAl, 
774-783. 

Instructions  in  criminal  case  generally,  see 
Trial,  III. 

Sufficiency  of  compliance  with  request  for 
instructions,  see  Trial,  825. 

Necessity  or  propriety  of  instructions  in 
criminal  case,  see  Trial,  879,  906-932. 

Failure  or  refusal  to  instruct  as  preju- 
dicial error,  see  Appeal  and  Error, 
1407,  1408,  1419-1424,  1430-1432,  1436, 
1437. 

Instructions  on  evidence,  see  Trial,  940, 
941,  943,  947-953,  958-963,  972. 

Instructions  as  to  credibility  of  witness, 
see  Tbial,  958-963. 

Prejudicial  error  in  instructions  as  to  credi- 
bilitv  of  witness,  see  Appeal  and  Er- 
bob,'1376,  1377. 

Instructions  on  failure  of  accused  to  tes- 
tify, see  Trial,  976. 

Failure  to  request  instructions,  see  Tbial, 
845. 

Correctness  of  instructions  in  criminal  case, 
see  Trial,  III.  e,  5. 

First  objecting  to  instructions  on  appeal, 
see  Appeal  and  Error,  798,  799. 

Waiver  or  cure  of  error  in  instruction,  see 
Appeal  and  Error,  848,  849,  851,  858, 
850,  863,  864. 

Prejudicial  error  in  instructions,  see  Ap- 
peal and  Error,  1322-1330,  1389-1395. 


CRIMINAL  LAW,  II.  a. 


799 


Election  between  counts,  see  Trial,  17-20. 

Argument  or  conduct  of  counsel  generally, 
see  Trial,  57,  60,  05-67,  68,  69,  72-75. 

Discretion  in  limiting  time  for  argimient  of 
counsel,  see  Appeal  and  Error.  640, 
641. 

Discretion  as  to  misconduct  of  county  at- 
torney, see  Appeal  and  Error,  657. 

Prejudicial  error  in  argument  of  prosecut- 
ing attorney,  see  Appeal  and  Error, 
1447-1449,  1451-1456,  1460. 

As  to  right  to  open  and  close,  see  Trial,  67. 

reading  of  law  to  jury  by  counsel,  see  Trial, 
68,  69. 

Reading  shorthand  notes  to  jury,  see  Trial, 
84'. 

Remarks  by  court  during  prosecution,  see 
Trial,  86,  87,  89,  90. 

Prejudicial  error  in  remarks  or  conduct  of 
judge,  see  Appeal  and  Error,  1465- 
1472. 

Verdict  in  criminal  case  generally,  see 
Trial,  V.  c,  2. 

Reception  of  verdict  in  criminal  case  on 
Sunday,  see  Sunday,  1. 

Review  on  appeal  of  findings  of  court,  see 
Appeal  and  Error,  964,  974,  975. 

Review  of  verdict,  see  Appeal  and  Error, 
919-932. 

Venue  of  criminal  case,  see  Venue,  17-19, 
24-27. 

Review  of  discretion  as  to  change  of  venue, 
see  Appeal  and  Error,  660-662. 

Cure  of  error  in  refusing  change  of  venue, 
see  Appeal  and  Error,  873. 

Competency  of  witnesses,  see  Witnesses,  I. 

Examination  of  witness,  see  Witnesses,  II. 

Cross-examination  of  witnesses,  see  Wit- 
nesses, II.  b. 

Impeachment  or  discrediting  of  witness,  see 
Witnesses,  III. 

Corroboration  of  witness,  see  Witnesses, 
193-200. 

Credibility  of  witnesses,  see  Witnesses,  IV. 

Indorsing  names  of  witnesses  on  informa- 
tion or  indictment,  see  Witnesses,  20. 

Error  in  excluding  expert  witnesses  from 
court  room  during  testimony,  see  Ap- 
peal AND  Error,  1484. 

60.  A  prosecution  by  information  for  a 
felony  is  commenced  on  the  date  the  war- 
rant which  is  executed  is  placed  in  the 
hands  of  an  officer  for  service,  and  not  on 
the  date  the  information  is  filed.  State  v. 
White,  14:  556,  92  Pac.  829,  76  Kan.  654. 

61.  A  trial  court,  by  discharging  a  pris- 
oner from  the  custody  of  the  sheriff  on  his 
surrender  by  his  bail  in  open  court,  does 
not  thereby  lose  jurisdiction  of  the  indict- 
ment, or  thereafter  to  retake  the  accused 
on  a  new  capias  and  put  him  upon  his 
trial  upon  the  indictment.  Denham  v.  Rob- 
inson, 45:  1123,  77  S.  E.  970,  72  W.  Va.  243. 

62.  That  an  illegal  sale  of  intoxicating 
liquor  is  made  in  local  option  territory  does 
not  require  the  proceedings  against  the 
vendor  to  be  taken  under  the  local  option 
law  if  the  act  also  constitutes  an  offense 
against  the  general  liquor  law.  Com.  v. 
Barbour,  3:  620,  89  S.  W.  479,  121  Ky.  46^. 

( Annotat-ed ) 
Digest  1-52  i:i.R.A.(N.S.) 


63.  Tliat  one  is  serving  a  term  of  im- 
prisonment under  sentence  of  .  court  for 
crime  will  not  prevent  his  being  brought  be- 
fore the  court  and  placed  on  trial  for  a 
capital  offense  committed  before  the  im- 
position of  the  sentence  under  which  he  is 
serving.  Re  Tranmer,  41:1095,  .126  Pac. 
337,  35  Nev.  56.  (Annotated) 

64.  Tlie  trial  upon  a  second  charge  of 
one  who  is  serving  a  term  of  imprisonment 
under  sentence  of  court  is  not  prevented 
bj'  a  statute  which  provides  that  if  one 
has  been  convicted  of  two  or  more  of- 
fenses before  judgment  on  either,  the  judg- 
ment may  be  that  the  imprisonment  upon 
any  one  may  commence  at  the  expiration 
of  the  imprisonment  upon  any  other  of  the 
offenses,  at  least,  where  the  statute  pro- 
vides for  a  person  serving  a  term  of  im- 
prisonment being  brought  before  the  court 
when  necessary.  Re  Tranmer,  41:  1095, 
126  Pac.  337,  35  Nev.  56. 

65.  One  accused  of  crime  cannot  object 
to  being  prosecuted  by  an  unofficial  member 
of  the  bar,  rather  than  by  the  prosecuting 
attorney.  State  v.  Bartley,  24:  564,  74  At). 
18,  105  Me.  212.  (Annotated) 

66.  The  rule  that  mere  error  in  decid- 
ing a  question  which  the  court  has  power 
to  hear  and  determine  does  noj;  render  the 
judgment  void  applies  in  criminal  cases. 
People  V.  Ham  Tong,  24:  481,  102  Pac.  263, 
155  Cal.  579. 

67.  Failure  of  the  state  to  prove  absence 
of  knowledge  by  the  grand  jury  of  material 
facts  omitted  from  the  indictment  entitles 
accused  merely  to  a  new  trial  under  a  prop- 
er indictment,  and  not  to  his  discharge. 
People  V.  Hunt,  36:  933,  96  N.  E.  220,  251 
111.  446. 

68.  That  the  crime  of  murder  is  charged 
to  have  been  committed  by  the  administra- 
tion of  poison,  under  Idaho  Rev.  Stat.  1887, 
§  6562,  declaring  the  offense  to  be  murder 
in  the  first  degree,  does  not  relieve  the  jury 
of  the  duty  of  finding  the  degree  of  the  of- 
fense, as  required  by  §§  7925,  7926.  State  v. 
Phinney,  12:  935,  89  Pac.  634,  13  Idaho,  307. 

(Annotated) 
Trial  at  one  time  on  tw^o  indictments. 

69.  One  may  be  tried  at  one  time  upon 
two  separate  indictments,  one  charging  ab- 
duction and  the  other  adultery  witli  the 
girl  abducted  since  the  several  offenses 
would  be  proved  by  substantially  the  same 
evioence,  or  evidence  connected  with  a  single 
line  of  conduct  or  growing  out  of  essi-ntial- 
ly  one  transaction.  Com.  v.  Rosentlial, 
47:  955.  97  N.  E.  609,  211  Mass.  50. 

(Annotated) 

70.  A  defendant  may  consent  to  the  trial 
at  the  same  time  and  before  the  same  jtry 
of  different  indictments  charging  him  with 
separate  offenses  of  burglary  and  grand 
larcenv.  Lucas  v.  State,  3:  412,  39  So.  821, 
144  Ala.  63.  '  (Annotated) 
Nolle  prosequi;  dismissal  of  indict- 
ment. 

71.  The  entry  of  a  nolle  prosequi  by  the 
prosecuting  attorney,  though  the  attorney 
general  joins  therein,  without  the  consent 
of   the    court,    is    ineffective    to    discontinue 


800 


CRIMINAL  LAW,  II.  b. 


a  prosecution  upon  an  indictment  by  a 
grand  jury.  Denham  v.  Robinson,  45:  1123, 
77  S.  E.  970,  72  W.  Va.  243.       (Annotated) 

6.  Protection  and  rights  of  accused 
■/  generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Time  for  objection  that  accused  was  prose- 
cuted under  wrong  name,  see  Appeal 
AXD  Ebbob,  360. 

Time  for  objection  that  indictment  was  not 
read  in  open  court  in  presence  of  jury, 
see  Appeal  and  Ebbob,  361. 

Objecting  for  first  time  on  appeal  to  mode 
of  proving  defendant's  testimony  given 
on  former  trial,  see  Appeal  and  Ebbob, 

t        771. 

Effect  of  demonstration  on  part  of  specta- 
tors in  court  room,  see  Appeal  and 
Ebbob,  1049. 

Permitting  proof  of  former  conviction  be- 
fore identifying  person  convicted  with 
accused,  see  Appeal  and  Ebbob,  655. 

Failui-e  of  record  on  appeal  to  show  pres- 
ence of  accused,  see  Appeal  and  Ebbob, 
109. 

Presumption  on  appeal  as  to  presence  of 
defendant,  see  Appeal  and  Ebbob,  474, 
475: 

Error  in  arguing  motion  in  absence  of  ac- 
cused, see  Appeal  and  Ebbob,  1480, 
1481. 

Right  lo  discharge  one  released  on  bail  un- 

-q  der  writ  of  habeas  corpus  and  to  cancel 
his  bond  during  his  absence  from  court, 
see  Habeas  Cobpus,  69. 

Allowing  governor,  in  case  execution  of 
criminal  is  delayed  beyond  time  fixed, 

1  to  designate  another  day,  see  Consti- 
tutional Law,  138. 

Disqualification  of  judge,  see  Judges,  II. 

Right  to  jury,  see  Juby,  I.  b,  2 ;  I.  d. 

Cross-examination  of  accused,  see  Wit- 
nesses, 111-121.  * 

( '  72.  A  person  charged  with  crime  is  not 
eotitled  to  an  inspection  of  a  stenographic 
transcript  of  a  private  interview  between  a 
witness  who  afterwards  testified  before  the 
grand  jury  wliich  found  the  indictment,  con- 
cerning matters  disclosed  in  the  interview, 
and  a  city  solicitor,  who  delivered  the  tran- 
script to  the  prosecuting  attorney,  upoit  the 
calling  of  the  interviewed  witness  to  testify 
in  support  of  the  indictment,  and  reference 
to  the  transcript  by  the  prosecuting  attor- 
ney, for  the  purpose  of  aiding  in  the  carry- 
ins;  on  of  his  examination  of  such  witness. 
h'kto  V.  Rhoads.  27:  558,  91  N.  E.  186,  81 
Ohio  St.  397. 

73.  One  accused  of  crime  is  not,  in  the 
absence  of  express  statutory  provision  to 
the  contrary,  entitled  to  the  minutes  of  the 
evidence  taken  before  the  grand  jury  which 
indicted  him,  nor  to  an  inspection  of  a  tran- 
script thereof  which  the  prosecuting  at- 
torney is  using  as  an  aid  in  the  examina- 
tion of  witnesses.  State  v.  Rhoads,  27:  558, 
91  N.  E.  186,  81  Ohio  St.  397.  (Annotated) 
Digest  1-52  Ii.R.A.(N.S.) 


74.  A  statute  providing  for  the  inspec- 
tion  in  civil  proceedings  of  the  papers  con- 
taining evidence  relating  to  the  merits  of 
the  action  or  defense,  whicli  are  in  the  pos- 
session of  the  adverse  party,  cannot  be  in- 
voked in  a  criminal  case,  so  as  to  allow  an 
accused  to  inspect  a  transcript  of  the  tes- 
timonj'  given  before  the  indicting  grand 
jury,  whore  such  transcript  is  not  and  can- 
not be  itself  evidence.  State  v.  Rhoads,  27: 
558,  91  N.  E.  186,  81  Ohio  St.  397. 

7;").  The  question  of  infringement  of  the 
right  of  accused  to  know  the  names  of  the 
jurors  by  whom  he  is  to  be  tried,  on  de- 
pletion of  the  regular  panel  through  im- 
properly sustained  challenges,  so  that  re- 
sort must  be  had  to  talesmen,  cannot  be 
raised  where  all  jurors  excused  were  dis- 
qualified. Demato  v.  People,  35:  621,  111 
Pac.  703,  49  Colo    147. 

76.  If  one  charged  with  crime  desires 
to  rely  upon  the  attendance  of  witnesses 
under  subpoena  by  the  state,  he  may  notify 
them  and  the  court  of  such  fact,  or  may 
cause  them  to  be  subpoenaed  in  his  own  be- 
half; but  he  has  no  right  to  rely  upon  the 
attendance  of  a  witness  merely  becaiise  the 
state  may  have  caused  a  subpa'na  to  issue 
for  such  witness.  State  v.  Campbell,  9:  533, 
85  Pac.  784,  73  Kan.  688. 

77.  In  a  criminal  action,  the  state  is  not 
obliged  to  place  upon  the  stand  every  wit- 
ness whose  name  is  indorsed  upon  the  in- 
dictment. State  V.  Campbell,  9:  533,  85  Pac. 
784,  73  Kan.  688. 

Opportunity  to  consult  tritli  connseL 

78.  Where  a  person  is  confined  in  jail 
pending  a  trial  upon  a  criminal  prosecu- 
tion, he  has  the  right  to  have  an  oppor- 
tunity to  consult  freely  with  his  counsel 
without  having  any  person  present  to  hoar 
what  passes  between  them,  whose  presence 
is  objectionable  to  such  defendant.  State 
ex  rel.  Tucker  v.  Davis,  44:  1083,  130  Pac. 
962,  9  Okla.  Crim.  Rep.  94.         (Annotated) 

79.  It  is  the  duty  of  officers  having  cus- 
tody of  persons  charged  with  the  commis- 
sion of  crime  to  afford  them  a  reasonable 
opportunity  privately  to  consult  their  at- 
torneys; and  no  officer  has  the  right  to  be 
present  and  hear  what  is  said  during  such 
consultation;  but  the  officers  must  take 
such  precautions  as  may  be  necessary,  ac- 
cording to  the  circumstances  of  each  case,  to 
prevent  the  escape  of  such  prisoners.  State 
ex  rel.  Tucker  v.  Davis,  44:  1083,  130  Pac. 
962,  9  Okla.  Crim.  Rep.  94. 

80.  It  is  the  duty  of  the  trial  courts  of 
Oklahoma  to  make  such  orders  as  will  se- 
cure to  every  person  imprisoned  upon  an 
accusation  of  crime  a  reasonable  oppor- 
tunity to  consult  privately  and  freely  with 
his  counsel,  without  let  or  hindrance  from 
any  sheriff,  jailer,  or  other  officer.  State 
ex  rel.  Tucker  v.  Davis,  44:  1083,  130  Pac. 
962,  9  Okla.  Crim.  Rep.  94. 

81.  As  to  just  when  and  where  consulta- 
tions between  prisoners  and  their  attorneys 
may  be  had  will  vary  with  the  circum- 
stances of  each  case,  within  the  discretion 
of  •  the  officer  having  the  custody  of  such 
prisoner;   but  this   discretion   is  subject  to 


CRIMINAL  LAW,  11.  b. 


801 


the  review  of  the  courts,  and  it  must  not  be 

arbitrarily   used.      State   ex   rel.   Tucker   v. 

Davis,  44:  1083,  130  Pac.  962,  9  Okla.  Crim. 

Rop.  94. 

Opportunity  to  plead. 

Absence  from  record  of  affirmative  showing 

that  accused  was  given  opportunity  to 

plead,  see  Appeal  and  Ebrob,  170. 
Omission  of  arraignment  and  plea  as  ground 

for   reversal,    see   Appeal   and    Ebbor, 

1046,  1047. 

82.  Absence  of  opportunity  to  plead, 
which,  by  statute,  is  made  a  part  of  the 
arraignment  in  a  prosecution  for  felony,  the 
plea  being  also  made  essential  to  an  issue, 
is  fatal  to  a  conviction,  although  accused 
manifests  no  desire  to  enter  a  plea,  and 
there  is  nothing  to  show  that  he  was  in 
any  way  injured  by  not  being  given  an  op- 
portunity to  do  so.  State  v.  Walton,  13: 
Si  I,  91  Pac.  490,  50  Or.  142,  (Annotated) 
Public  trial. 

Waiver  of  right  to,  see  Appeal  and  Ebrob, 
813. 

83.  The  right  to  a  public  trial,  guaran- 
teed one  accused  of  crime  by  Minn.  Const, 
art.  1,  §  6,  is  not  invaded  by  an  act  for- 
bidding the  publication  of  the  details  of 
criminal  executions.  State  v.  Pioneer  Press 
€0.  9:  480,  110  N.  W.  867,  100  Minn.  173. 

84.  An  order  made  by  the  court  on  the 
trial  of  an  indictment  for  rape,  excluding 
from  the  courtroom,  during  the  taking  of 
the  evidence  of  witnesses  likely  to  give  im- 
moral or  obscene  testimony,  all  persons  ex- 
cept the  jury,  defendant's  counsel,  members 
of  the  bar,  newspaper  men,  and  one  other 
person,  a  witness  for  defendant,  exceeds  the 
power  of  the  court;  and  its  enforcement  is 
a  denial  to  defendant  of  his  constitutional 
right  to  a  public  trial.  State  v.  Hensley, 
g:  277,  79  N.  E.  462,  75  Ohio  St.  255. 

( Annotated ) 

85.  One  on  trial  for  rape  is  not  deprived 
of  a  public  trial  by  the  exclusion  from  the 
court  room  of  all  spectators,  if  the  court 
officers,  including  members  of  the  bar  and 
witnesses,  are  allowed  to  remain.  Reagan 
V.  United  States,  44:  583,  202  Fed.  488,  120 
C.  C.  A.  627.  (Annotated) 

86.  The  statutory  and  constitutional 
right  to  a  "public  trial"  is  not  violated  by 
the  making  and  enforcing,  on  the  trial  of  a 
prosecution  for  rape,  of  a  court  order  ex- 
cluding all  persons  from  the  court  room  dur- 
ing the  taking  of  evidence,  except  "all  ju- 
rors, officers  of  the  court,  including  attor- 
neys, litigants  and  their  attorneys,  wit- 
nesses for  both  parties,  and  any  other  per- 
son or  persons  whom  the  several  parties  to 
the  action  may  request  to  remain,"  at  least 
where  no  restrictions  are  placed  on  the  num- 
ber of  persons  that  may  remain  on  request 
of  the  defendant,  and  it  does  not  appear 
that  he  desires  that  anyone  remain,  or  that 
anyone  coming  within  the  class  permitted 
to  remain  is  refused  admittance.  State  v. 
Nyhus,  27:  487,  124  N.  W.  71,  19  N.  D.  326. 

(Annotated) 
Speedy  trial. 
Right  of  appellate  court  to  consider  delay 

of  trial,  see  Appeal  and  Ebbob,  491. 
Bigest  1-52  I<.R.A.(N.S.) 


Certifying  to  supreme  court  questions  in- 
volving construction  of  statutes  as  to 
speedy  trial,  see  Cases  Certified,  5. 

Habeas  corpus  to  secure  release  because  of 
delay,  see  Habeas  Corpus,  5,  20. 

87.  A  prisoner  is  not  entitled  to  be  dis- 
charged because  not  brought  to  trial  within 
two  terms  after  his  arrest,  where  the  delay 
was  caused  by  his  own  conduct  or  condi- 
tion. Com.  V.  Fisher,  26:  1009,  75  Atl.  204., 
226   Pa.   189. 

88.  A  defendant  who  has  never  demand- 
ed or  been  refused  a  trial  is  not  entitled 
to  be  discharged  upon  the  ground  that  he 
was  not  brought  to  trial  at  the  next  term 
of  the  court  after  that  at  which  the  in- 
dictment or  information  was  presented,  un- 
less he  shows  that  the  laches  was  on  the 
part  of  the  state,  through  its  prosecuting 
officers;  otherwise  the  presumption  will  pre- 
vail that  the  delay  was  caused  by  or  with 
the  consent  of  the  defendant  himself;  and 
when  a  defendant  is  on  bail,  he  must  de- 
mand a  trial  of  his  case,  or  resist  a  con- 
tinuance of  the  case  from  term  to  term. 
Head  v.  State,  44:  871,  131  Pac.  937,  9 
Okla.  Crim.  Rep.  356.  (Annotated) 

89.  An  adjourned  term  of  a  circuit  court, 
or  of  the  criminal  court  of  a  county,  had 
pursuant  to  §  4,  chapter  112,  West  Va. 
Code  1906,  is  not  a  "new  term,"  but  a  con- 
tinuance of  the  term  adjourned;  and  one 
then  under  indictment,  and  who  would  at 
the  end  of  that  term,  if  not  tried,  be  en- 
titled to  his  discharge,  because  three  terms 
had  elapsed  after  indictment  found,  with- 
out trial,  is  not  entitled  to  such  discharge, 
if  brought  to  trial  at  such  adjourned  term. 
Denham  v.  Robinson,  45:  1123,  77  S.  E.  970, 
72  W.  Va.  243. 

90.  The  constitutional  rights  of  one  ac- 
cused of  murder  to  a  speedy  trial  are  not 
denied  because  he  was  not  placed  on  trial 
at  the  first  term  after  the  indictment  if 
the  cause  was,  without  objection  on  his 
part,  put  over  the  term  to  allow  his  trial 
on  another  indictment,  upon  which  he  was 
convicted  and  sentenced  to  imprisonment. 
Re  Tranmer,  41:  1095,  126  Pac.  337,  35  Nev. 
56. 

91.  The  terms  of  court  which  intervene 
pending  an  appeal  by  the  state  from  a  judg- 
ment quashing  an  indictment  are  not  to  be 
counted  in  determining  whether  the  person 
under  indictment  and  held  to  bail  is  entitled 
to  be  discharged  because  not  brought  to  trial 
before  the  end  of  the  third  term  of  court 
after  the  finding  of  the  indictment,  as  re- 
quired by  Kan.  Code  Crim.  Proc.  §  221. 
State  V.  Campbell,  9:  533,  85  Pac.  784,  73 
Kan.  688. 

92.  Imprisonment  cannot  be  coHtinued 
by  finding  another  indictment,  where  a 
prisoner  has  become  entitled  to  release  be- 
cause ot  failure  to  prosecute,  under  a  consti- 
tutional provision  guaranteeing  him  a 
speedy  trial  and  a  statute  requiring  the 
trial  to  take  place  within  a  certain  time 
after  the  indictment  is  found.  People  ex 
rel.  Nagel  v.  Heider,  11:  257,  80  N.  E.  291, 
225   111.   347.  (Amiotated) 

93.  The  constitutional   right  of  one  ac- 
51 


802 


CRIMINAL  LAW,  II.  b. 


cused  of  crime  to  a  speedy  trial  prevents 
his  trial  on  the  second  charge  where,  being 
accused  of  two  offenses,  he  is  tried  and  con- 
victed of  one,  and  the  state  permits  him  to 
be  sentenced  and  imprisoned  on  that  with- 
out moving  the  other  charge,  although  it  is 
ready  for  trial,  and  takes  no  steps  to  prose- 
cute the  second  charge  until  the  termination 
of  the  sentence,  which  is  not  until  after  the 
pa'ssage  of  several  terms  of  court  in  excess 
of  the  number  fixed  by  statute  for  the  trial 
of  persons  accused  of  crime.  State  v.  Keefe, 
22:  896,  98  Pac.  122,  17  Wyo.  227. 

94.  The  fact  that  one  accused  of  crime  is 
confined  in  the  penitentiary  upon  conviction 
of  another  offense  does  not  prevent  the  ap- 
plication of  a  statute  requiring  a  person  in- 
dicted for  an  offence  and  committed  to  pris- 
on to  be  brought  to  trial  before  the  end  of 
the  second  term  of  court  or  discharged  so 
far  as  relates  to  the  offense  for  which  he  is 
committed.  State  v.  Keefe,  22:  896,  98  Pac. 
122,  17  Wyo.  227. 

Right  to  meet  witnesses. 

Prejudicial  error  in  introduction  of  de- 
cree based  on  ex  parte  affidavits,  see 
Appeal  and  Ebbor,  1126. 

Prejudicial  error  in  conduct  of  judge,  see 
Appeal  and  Error,  1465,  1466. 

Right  to  be  confronted  by  witnesses  in  sum- 
mary proceeding  to  punish  for  con- 
tempt, see  Contempt,  78. 

95.  The  constitutional  rights  of  one  ac- 
cused of  crime  to  meet  the  witnesses  face  to 
face  is  not  infringed  by  refusal  to  compel 
the  production  of  evidence  before  a  com- 
mitting magistrate.  Farnham  v.  Colman, 
i:  1135,  103  N.  W.  161,  19  S.  D.  342. 

96.  The  constitutional  right  of  one  ac- 
cused of  crime  to  be  confronted  with  wit- 
nesses contemplates  that  they  shall  be  ex- 
amined in  his  presence  and  be  subject  to 
cross-examination  by  him.  Ralph  v.  State, 
2:  509,  52  S.  E.  298,  124  Ga.  81. 

97.  The  manner  of  communicating  to  a 
deaf  person  on  trial  for  a  crime  the 
evidence  of  witnesses  for  the  state  depends 
upon  the  circumstances,  and  must,  to  a 
large  extent,  .  left  to  the  sound  discretion 
of  the  trial  court.  Ralph  v.  State,  2:  509, 
52  S.  E.  298,  124  Ga.  81. 

98.  The  presiding  judge  should  permit 
some  reasonable  mode  of  having  the  evidence 
of  witnesses  for  the  state  communicated  to 
one  accused  of  crime  who  is  deaf.  Ralph  v. 
State,  2:  509,  52  S.  E.  298,  124  Ga.  81. 

(Annotated) 

99.  Permitting  the  state,  in  a  criminal 
prosecution,  to  ask  a  question  of  a  witness 
who  is  so  ill  that  the  court  thinks  it  would 
be  inhuman  to  subject  him  to  examination, 
and  whose  physician  states  that  examina- 
tion might  result  fatally,  deprives  the  ac- 
cused of  the  constitutional  right  to  be  con- 
fronted by  the  witnesses  against  him,  al- 
though the  right  of  cross-examination  is  not 
expressly  denied,  since  the  risk  of  terminat- 
ing the  witness's  life  cannot  be  imposed 
upon  the  accused  as  a  condition  of  the  exer- 
cise of  his  right.  Wray  v.  State,  15:493, 
45  So.  697,  154  Ala.  36.  (Annotated) 

100.  The  constitutional  guaranty  of  the 
Digest  1-52  Ii.R.A.(N.S.) 


right  of  the  accused  person  in  a  criminal 
prosecution  to  meet  the  witnesses  face  to 
face  does  not  extend  to  mere  official  au- 
thenticators  of  official  documents  offered  in 
evidence  on  the  subject  of  competency  of 
a  person  produced  as  a  witness  to  testify. 
Oborn  v.  State,  31 :  966,  126  N.  W.  737,  143 
Wis.  249. 

101.  A  constitutional  provision  guaranty- 
ing defendants  the  right  to  be  confronted  by 
witnesses  against  tliem  is  complied  with 
when  defendant  has  liad  the  opportunity  to 
cross-examine  witnesses  in  a  preliminary 
trial  before  a  justice  of  the  peace,  and  their 
testimony  may  be  approved  on  a  subsequent 
trial  if  the  witnesses  are  shown  to  liave  be- 
come unavailable.  Warren  v.  State,  34: 
1 121,  115  Pac.  812,  6  Okla.  Crim.  Rep.  1. 

102.  A  constitutional  provision  that  one 
accused  of  homicide  shall  be  furnished  with 
a  list  of  witnesses  against  him  does  not 
apply  to  witnesses .  called  merely  to  testify 
as  to  the  residence  of  absent  witnesses,  and 
that  they  testified  at  defendant's  prelimin- 
ary examination,  at  which  defendant  was 
present  and  had  an  opportunity  to  cross-, 
examine  them.  Warren  v.  State,  34:  1121, 
115  Pac.  812,  6  Okla.  Crim.  Rep.  1. 

103.  Constitutional  and  statutory  provi- 
sions to  the  effect  that  an  accused  has  a 
right  to  be  confronted  with  the  witnesses 
against  him  in  the  presence  of  the  court, 
and  to  meet  them  face  to  face,  do  not  pre- 
vent the  reading  at  the  trial  of  testimony 
of  witnesses  given  before  the  committing 
magistrate,  should  they  leave  the  state  since 
giving  the  same,  where  accused  had  an  op- 
portunity to  cross-examine  them,  and  it  is 
immaterial  that  the  complaint  before  the 
magistrate  and  the  information  before  the 
court  lay  the  offense  on  different  days,  if 
the  precise  time  is  immaterial  and  the  of- 
fenses charged  are  shown  by  the  record  to 
be  one  and  the  same.  State  v.  Heffernan, 
25:  868,  118  N.  W.  1027,  22  S.  D.  513,  123 
N.  W.  87,  24  S.  D.  1.  (Annotated) 
Compulsory     process     for     xritnesses; 

costs. 
Discretion  of  court  in  determining  whether 
statutory  requirements  have  been  com- 
plied with,  see  Appeal  and  Error,  611. 

104.  The  provisions  of  Fla.  Laws  1903, 
chap.  5132,  p.  71,  prescribing  that  one  ac- 
cused of  crime,  in  order  to  procure  witnesses 
for  his  defense  at  the  cost  of  the  county, 
shall  make  affidavit  of  insolvency  and  set 
forth  the  substance  of  the  facts  sought  to  be 
proved  by  the  witnesses,  are  not  in  conflict 
with  either  §  11  or  §  14  of  the  Declaration 
of  Rights  of  the  Florida  Constitution  of 
1885,  providing  that  one  accused  of  crime 
shall  have  compulsory  process  for  the  at- 
tendance of  witnesses  in  his  favor,  and  shall 
not  be  compelled  to  pay  costs  except  after 
conviction  on  a  final  trial.  Pittman  v. 
State,  8:  509,  41  So.  385,  51  Fla.  94. 

(Annotated) 

105.  The  constitutional  right  of  one  ac- 
cused of  crime  to  have  compulsory  process 
for  obtaining  witnesses  in  his  favor,  con- 
ferred by  the  6th  Amendment  to  he  Federal 
Constitution,   has  reference  only  to  powers 


CRIMINAL  LAW,  II.  b. 


803 


exercised  by  the  government  of  the  United 
States,  and  not  to  those  exercised  by  the 
states.  Pittman  v.  State,  8:  509,  41  So.  385, 
51  Fia.  94. 

106.  Applications  under  Fla.  Laws  1003, 
chap.  5132,  p.  71,  for  the  procurement  of 
witnesses,  at  the  cost  of  the  county,  for  the 
defense  of  parties  charged  with  crime, 
should  be  seasonably  made  at  the  earliest 
reasonable  opportunity,  and  not  withheld 
until  the  case  is  actually  called  for  trial. 
Pittman  v.  State,  8:  509,  41  So.  385,  51  Fla. 
94. 

Crimination  of  self. 

Right  of  attorney  to  immunity  from  disbar- 
ment based  on  his  own  testimony,  see 
Attorneys,  5. 

Forbidding  driver  of  automobile  to  leave 
place  of  accident  without  giving  his 
name  and  address,  see  Automobiles,  4. 

Admissibility  of  statement  by  accused  be- 
fore accusation,  see  Evidence,  779. 

Evidence  of  confessions,  see  Evidence,  VIII. 

Privilege  of  witnesses  generally,  see  Wit- 
nesses, II.  c. 

See  also,  infra,  131 ;  Pebjxjry,  8,  10. 

107.  Forcibly  taking  shoes  from  an  ac- 
cused person  for  purposes  of  comparison 
with  footprints  does  not  violate  his  constitu- 
tional right  not  to  be  compelled  to  give  evi- 
dence against  himself.  State  v.  Fuller, 
8:  762,  85  Pac.  369,  34  Mont.   12. 

(Annotated) 

108.  A  constitutional  provision  that  no 
person  in  a  criminal  case  shall  be  compelled 
to  give  evidence  against  himself  which  will 
tend  to  incriminate  him  is  violated  by  a 
demand  on  defendant,  in  the  presence  of 
the  jury,  to  produce  a  document  contain- 
ing incriminating  evidence  against  him, 
though  no  order  for  the  production  of  the 
paper  is  made.  Gillespie  v.  State,  35:  1171, 
115  Pac.  620,  5  Okla.  Crim.  Rep.  546. 

( Annotated ) 

109.  The  constitutional  protection  against 
giving  evidence  against  one's  self  applies  to 
the  involuntary  production  of  private  books 
and  papers  in  response  to  any  process  or 
order  of  court  addressed  to  the  owner  in  the 
character  of  a  witness,  as  well  as  to  the  giv- 
ing of  oral  testimony.  State  v.  Pence,  25: 
818,   89   N,   E.   488,   173   Ind.   99. 

110.  The  oflScers  of  an  insolvent  state 
bank  in  the  hands  of  a  state  bank  com- 
missioner cannot  disobey,  on  the  ground  of 
the  constitutional  protection  against  self- 
crimination,  an  order  of  court  to  produce 
and  deliver  the  books,  records,  and  papers 
of  such  bank  to  the  commissioner.  Bur- 
nett v.  State  ex  rel.  Wect,  47:  1175,  129 
Pac.  1110,  8  Okla.  Crim,  Rep.  639. 

(Annotated) 

111.  The  mere  statement  by  an  officer  of  a 
corporation  who  has  been  directed  to  turn 
its  books  over  to  a  receiver,  that  he  has 
been  indicted  for  an  offense  connected  with 
the  management  of  the  corporation,  and 
that  the  contents  of  the  books  may  tend  to 
incriminate  him,  is  not  sufficient  to  excuse 
him  from  obeying  the  order  of  the  court, 
but  it  is  necessary  to  state  facts  from 
which  the  court  can  determine  that  such  is 
Digest  1-52  L.R.A.(N.S.) 


the  fact.     Manning  v.  Mercantile  Securities 
Co.  30:  725,  itO  N.  E..  238,  242  111.  584. 

112.  An  officer  of  a  corporation  cannot  re- 
fuse to  comply  with  an  order  of  an  equity 
court  to  turn  over  its  books  to  a  receiver, 
because  they  may  have  a  tendency  to  in- 
criminate him,  since  in  such  cases  the 
books  go  into  the  custody  of  the  court,  artd 
the  constitutional  protection  of  witnesses 
does  not  apply,  because  the  court  can  pro- 
tect the  officer  from  the  use  of  the  books 
against  him.  Manning  v.  Mercantile  Securi- 
ties Co.  30:  725,  90  N.  E.  238,  242  111.  584. 

(Annotated) 

113.  The  legislature  cannot  require  a 
stockbroker  to  permit  an  examination  of 
his  private  books  and  papers  to  enable  a  tax 
officer  to  determine  whether  or  not  a  record 
which  he  is,  under  penalty,  required  to  keep, 
of  stock  transfers  to  furnish  evidence  for 
their  taxation,  has  been  correctly  kept, 
where  the  Constitution  forbids  compelling 
one  in  a  criminal  case  to  be  a  witness 
against  himself.  People  ex  rel.  Ferguson  v. 
Reardon,  27:  141,  90  N.  E.  829,  197  N.  Y. 
238. 

114.  No  prosecution  for  the  illegal  sale 
of  intoxicating  liquors  can  be  based  upon 
records  which  accused  is  compelled  to  pro- 
duce against  his  will,  and  which  he  is  re- 
quired to  keep  by  a  statute  permitting  him 
to  make  sales  for  medicinal  and  mechanical 
purposes,  upon  prescriptions  and  applica- 
tions, upon  which  he  is  required  to  indorse 
his  opinion  as  to  their  honesty,  where  noth- 
ing in  the  statute  makes  such  records  public 
documents,  since  they  are  merely  private 
papers  subject  to  the  constitutional  protec- 
tion against  giving  evidence  against  one's 
self.  State  v.  Pence,  25:  818,  89  N.  E.  488, 
173  Ind.  99.  (Annotated) 

115.  Written  prescriptions  of  practising 
physicians  on  which  a  licensed  druggist  has 
made  sales  of  intoxicating  liquors  are  quasi 
public  documents,  and  the  constitutional 
privilege  against  self-incrimination  is  not 
violated  by  compelling  a  druggist  who 
stands  indicted  for  unlawfully  selling  spirit- 
uous liquors  to  produce  them  in  court  in 
order  that  they  may  be  used  as  evidence 
against  him  on  his  trial,  where  his  keeping 
them  was  a  condition  of  his  right  to  sell 
generallv.  West  Virginia  v.  Davis,  32: 
501,  69  S.  E.  639,  68  W.  Va.  142. 

116.  The  written  prescriptions  of  prac- 
tising physicians  on  which  a  licensed  drug- 
gist has  made  sales  of  intoxicating  liquors, 
and  which  he  has  preserved  in  his  posses 
sion,  as  the  statute  directs,  are  not  his 
"private  papers  and  documents,"  witliin  the 
meaning  of  the  constitutional  guaranty 
against  compulsorv  self-crimination.  State 
v^  Davis,  32:  501, '69  S.  E.  639,  68  W.  Va. 
142. 

117.  Schedules  filed  in  a  bankruptcy  pro- 
ceeding are,  when  attempted  to  be  used  in 
evidence  in  a  prosecution  against  the  bank- 
rupt for  concealing  property  from  the  trus- 
tee, within  the  operation  of  a  statute  for- 
bidding the  admission  in  any  criminal  prose- 
cution against  him  of  any  pleading  of,  or 
discovery    or     evidence     obtained    from,    a 


804 


CRIMINAL  LAW,  II.  b. 


party  by  means  of  a  judicial  proceeding. 
Johnson  v.  United  States,  i8:  1194,  163  Fed. 
30,  89  C.  C.  A.  508.  (Annotated) 

118.  The  books  of  a  bankrupt  which  have 
been  transferred  to  the  trustee  in  accord- 
ance with  the  bankrupt  act  of  July  1,  1898 
<30  Stat,  at  L.  565,  chap.  541,  U.  S.  Corap. 
Stat.  Supp.  1911,  p.  1511),  §  70,  may  be 
producea  before  the  grand  jury  and  before 
the  petit  jury  at  the  trial  of  the  bankrupt 
for  concealing  money  from  the  trustee, 
without  infringing  the  bankrupt's  crnsti- 
tutional  privilege  against  self-crimination. 
Johnson  v.  United  States,  47:  263,  33  Sup. 
Ct.  Rep.  572,  228  U.  S,  457,  57  L.  ed.  919. 

(  (Annotated) 

119.  The  admission  of  evidence  showing 
that  one  charged  with  murder  produced 
}from  a  hiding  place  a  revolver  similar  to 
that  with  which  the  homicide  was  known 
to  have  been  committed  does  not  violate 
the  rule  that  a  defendant  cannot  be  com- 
pelled to  be  a  witness  against  himself,  al- 
though such  production  was  induced  by 
intimidation.  State  v.  Turner,  32:  772,  109 
Pac.   654,   82   Kan.    787.  (Annotated) 

120.  A  forged  note  found  in  an  attorney's 
desk  when  it  was  being  searched  by  private 
individuals  for  papers  belonging  to  his 
client  is  not  ^inadmissible  against  him  in 
a  prosecution  for  the  forgery,  as  violating 
his  constitutional  right  not  to  be  a  witness 
against  himself,  although  there  is  no  other 
evidence  of  the  corpus  delicti,  so  that  its 
use,  in  effect,  is  to  force  from  him  an  extra- 
judicial confession  thereof.  People  v.  Camp- 
■,bell,  34:  58,  125  N.  W.  42,  160  Mich.  108. 

( Annotated ) 
i  121.  Making  it  a  felony  for  one  who  has 
caused  injury  by  the  operation  of  a  motor 
vehicle,  to  leave  the  place  of  accident  with- 
•  out  leaving  his  name,  address,  and  license 
I^umber,  does  not  violate  the  constitutional 
protection  against  giving  self-incriminating 
evidence.  Ex  parte  Kneedler,  40:  622,  147 
S.   W.   983,   243   Mo.   632.  (Annotated) 

Photograpliiiig  and  measuring. 
Action    to    compel    destruction    of    pictures 

taken  for  rogues'  gallery,   see  Action 

OB  Suit,  68;  Coubts,  199. 
Injunction   against   sending   photograph   to 

rogues'  gallery,  see  Injunction,  110. 

122.  The  photographing  and  measuring 
before  trial  for  purposes  of  identification  by 
the  Bertillon  system  of  one  arrested  on  a 
criminal  charge  does  not  violate  any  of  his 
constitutional  rights  if  the  photograph  is 
not  to  be  placed  in  the  rogues'  gallery,  01 
the  means  of  identification  distributed  prior 
to  his  conviction,  unless  he  becomes  a  fugi- 
tive from  justice.  Downs  v.  Swann,  23:  739, 
73  Atl.  653,  111  Md.  53.  (Annotated) 

123.  Police  commissioners,  who  are  re- 
quired by  statute  to  preserve  the  public 
peace,  prevent  crime,  arrest  offenders,  and 
protect  rights  of  persons  and  property  with- 
in a  city,  and  cause  to  be  followed  any  per- 
son whom  they  have  reason  to  believ^e  in- 
tends leaving  the  city  for  the  purpose  of 
violating  the  laws  of  the  state,  have  a  right 
to  adopt  the  most  approved  means  of  iden- 
Digest  1-52  I^R.A.(N.S.) 


tifying  probable  wrongdoers,  including  that 
of  photographing  and  measuring  persons  ar- 
rested for  crime.  Downs  v.  Swann,  23:  739, 
73  Atl.  653,  111  Md.  53. 

123a.  The  destruction  of  photographs  tak- 
en under  the  direction  of  the  police  authori- 
ties, of  a  person  accused  but  not  yet  con- 
victed of  a  crime,  with  the  intention  of 
placing  them  in  the  rogue's  gallery,  should 
be  directed  when  the  portraits  are  not  nec- 
essary to  prove  his  guilt,  identify  hia  per- 
son, or  guard  against  escape.  Schulman  v. 
Whitaker,  7:  274,  42   So.  227,  117   La.   704. 

(Annotated) 
AVaiver   or  loss   of  right. 
Presumption  as  to,  on  appeal,  see  Appeal 

AND  Ebbob,  447. 
Waiver  of  right  to  be  present  when  motion 

is  argued,  see  Appeal  and  Ebbob,  1480. 
Waiver  of  disqualification  of  juror,  see  Juby, 

74. 
Waiver  of  right  to  jury  trial,  see  Juby,  I. 

c. 
See  also  infra,  156,  201-205. 

124.  An  accused  person  in  a  criminal  case 
is  competent  to  waive  irregularities  and 
rights,  whether  constitutional  or  statutory, 
very  much  the  same  as  a  party  may  in  a 
civil  action.  Oborn  v.  State,  31:  966,  120 
N.  W.  737,  143  Wis.  249. 

125.  The  right  of  the  defendant  to  be 
present  when  a  verdict  is  returned,  secured 
to  him  by  the  statutory  provision  that  "no 
person  indicted  or  informed  against  for 
felony  can  be  tried  unless  he  be  personally 
present  during  the  trial,"  is  one  that  may 
be  waived;  and  if,  while  at  liberty  on  bond, 
he  is  voluntarily  absent,  without  having 
been  excused  by  the  court,  when  the  jury 
reaches  an  agreement,  a  verdict  against 
him  may  lawfully  be  received  in  his  absence. 
State  V.  Way,  14:  603,  93  Pac.  159,  76  Kan. 
928.  (Annotated) 

126.  One  on  trial  for  felony  waives  his 
right  to  be  present  when  the  verdict  is  re- 
ceived, by  absenting  himself  on  bail  for 
a  period  of  eighteen  hours  so  that  he  cannot 
be  found  after  the  court  has  exhaustel  all 
reasonable  means  to  secure  his  presence 
in  court.  State  v.  Gorman,  32:  306,  129  N. 
W.  589,  113  Minn.  401.  (Annotated) 

127.  One  on  trial  for  a  capital  offense  can- 
not waive  his  right  to  be  present  when  the 
verdict  is  rendered,  even  by  voluntarily  ab- 
senting himself  from  the  court  room  in  case 
he  is  on  bond;  and  it  is  immaterial  that 
the  verdict  actually  returned  is  for  an  of- 
fense not  en -lital.  Sherrod  v.  State,  20:  :;o9, 
47  So.  554,  ,j3  Miss.  774. 

128.  One  upon  trial  for  homicide  may 
waive  his  right  to  be  heard  in  person  or 
by  counsel  in  the  argument  of  his  cause 
and  the  right  to  be  present  during  such 
argument.  Henry  v.  State,  52:  113,  136 
Pac.  982,  10  Okla.  Crim.  Rep.  369. 

129.  One  on  trial  for  misdemeanor  who, 
without  leave,  voluntarily  departs  from  the 
court  room  after  the  case  has  been  sub- 
mitted to  the  jury,  and  before  the  court  has 
adjourned,  and  remains  away  when  the  ver- 
dict against  him  is  received,  waives  his'stat- 


CRIMINAL  LAW,  H.  c,  d. 


805 


utory  right  to  be  present  at  that  time. 
State  V.  Waymire,  21:  56,  97  Pac.  46,  52  Or. 
28L  (Annotated) 

130.  Failure  of  the  deputy  sheriif  to  com- 
ply with  his  promise  to  notify  a  person  on 
trial  for  misdemeanor,  who  has  left  the 
court  room  pending  the  deliberation  of  the 
jury,  when  the  jury  is  ready  to  report,  will 
not  alter  the  effect  of  his  waiver  oif  the 
right  to  be  present  when  the  verdict  is  re- 
ceived by  voluntarily  departing  from  the 
room.  State  v.  Waymire,  21:  56,  97  Pac.  46, 
62  Or.  281. 

131.  An  accused  who  consents  to  the  use 
of  his  shoes  for  comparison  with  footprints 
cannot  claim  that  his  constitutional  right 
not  to  be  compelled  to  give  evidence  against 
himself,  and  to  be  free  from  unreasonable 
seizures,  is  infringed  by  evidence  as  to  the 
result  of  the  comparison.  State  v.  Fuller, 
8:  762,  85  Pac.  369,  34  Mont.  12. 

c.  Warrant;  commitment, 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

132.  A  warrant  issued  by  a  coroner  pur- 
suant to  a  statute  requiring  him,  upon  the 
rendition  by  the  coroner's  jury  of  a  verdict 
of  guilty,  to  issue  his  warrant  for  the  ar- 
rest of  the  accused,  and  providing  that  such 
warrant  shall  take  the  place  of  a  complaint 
and  be  sufficient  foundation  for  a  prelimi- 
na,ry  examination  before  a  magistrate,  is 
sufficient  authority  for  the  holding  of  such 
examination,  notwithstanding  another  stat- 
ute providing  that  a  written  complaint  un- 
der oath  shall  be  filed  with  the  magistrate 
before  a  warrant  shall  issue.  State  v.  Bre- 
count,  28:  187,   107   Pac.  763,  82  Kan.   195. 

d.    Necessity    of    indictment,     present- 
ment or  information. 

(flee  also  same  heading  in  Digest  L.R.A 
1-10.) 

Statute  depriving  accused  of  right  to  indict- 
ment by  grand  jury,  see  Constitu- 
tional Law,  36. 

Effect  of  absence  of  valid  indictment  on 
jurisdiction  of  Federal  court,  see 
Courts,  263. 

As  to  requisites  and  sufficiency  of  indict- 
ment, information  or  complaint,  see 
Indictment,  etc. 

Prohibition  to  restrain  action  upon  invalid 
information,  see  Prohibition,  8. 

133.  A  court  of  record  cannot  summarily 
commit  for  {perjury  one  who  has  filed  an 
affidavit  for  change  of  judge  for  prejudice, 
under  a  statute  authorizing  courts  of  record 
to  so  commit  any  person  when  it  appears 
probable  that  he  has  committed  perjury  in 
testifying  before  such  court,  since,  if  the 
statute  were  effective  in  such  case,  it  would 
make  the  court  the  judge  of  his  own  case  in 
violation  of  the  maxim,  'Nemo  debet  esse 
judex  in  propria  sua  causa.  Ex  parte 
Digest  1-52  I..R.A.(N.S.) 


Ellis,   25:  653,  105  Pac.   184,  3  Okla.  Crim. 
Rep.   220. 

134.  An  original  prosecution  cannot  be 
instituted  in  a  court  of  record  except  by 
presentment  of  indictment  by  a  grand  jury, 
or  by  an  information  exhibited  by  the  coun- 
ty attorney  or  some  other  officer  thereto  au- 
thorized by  law.  Evans  v.  Willis,  19:  1050, 
97  Pac.  1047,  22  Okla.  310. 

135.  The  court  has  no  jurisdiction  to  ti^ 
a  criminal  case  in  the  absence  of  an  indict- 
ment, where  defendant  has  a  constitutional 
right  to  be  accused  by  indictment  only. 
Garnsey  v.  State,  38:  600,  112  Pac.  24,  4 
Okla.  Crim.  Rep.  547. 

136.  A  crime  punishable  by  imprison- 
ment for  a  term  of  years  at  hard  labor  is 
an  infamous  crime,  within  the  provision  of 
a  Constitution  to  the  effect  that  no  person 
shall  be  held  to  answer  for  an  infamous 
crime  unless  on  presentment  or  indictment 
of  a  grand  jury.  Garnsey  v.  State,  38:  600, 
112  Pac.  24,  4  Okla.  Crim.  Rep.  547. 

137.  Article  5  of  the  Amendments  to  the 
Constitution  of  the  United  States,  provid- 
ing that  "no  person  shall  be  held  to  answer 
for  a  capital  or  otherwise  infamous  crime 
unless  on  a  presentment  or  indictment  of  a 
grand  jury,"  guarantees  to  a  defendant 
charged  with  the  commission  of  a  felony 
in  Oklahoma  territory,  prior  to  statehood, 
an  unalterable  right  to  be  accused  by  in- 
dictment only.  Garnsey  v.  State,  38:  600, 
112  Pac.  24,  4  Okla.  Crim.  Rep.  547. 

138.  By  a  proceeding  under  a  statute 
providing  for  an  information  and  the  im- 
position of  an  additional  sentence  upon  a 
convict  who  has  been  twice  before  convicted 
and  sentenced  to  a  penitentiary,  the  convict 
is  not  held  to  answer  for  a  crime  so  as  to 
require  presentment  or  indictment  of  a 
grand  jury,  nor  is  he  thereby  twice  put  in 
jeopardy  for  an  offense.  State  v.  Graham, 
40:  924,  69  S.  E.  1010,  68  W.  Va.  248. 

139.  Indictment  is  not  required  by  a  con- 
stitutional provision  that  no  one  shall  be 
deprived  of  his  liberty  "except  by  the  laws 
of  the  land,"  even  in  case  of  common-law 
felonies;  and  the  legislature  may  there- 
fore authorize  the  institution  of  prosecu- 
tions by  information.  State  v.  Stimpson, 
i:  1 153,  62  Atl.  14,  78  Vt.  124. 

( Annotated ) 

140.  The  constitutional  guaranty  of  im- 
munity from  criminal  prosecution  except  by 
indictment  does  not  prevent  the  legislature 
from  permitting  the  grand  jury  of  one  coun- 
ty to  indict  for  crimes  committed  in  an  ad- 
joining county,  since,  although  indictment 
requires  a  grand  jury,  venue  is  not  an  es- 
sential element  of  it.  State  v.  Lewis,  7:  66g, 
55  S.  E.  600,  142  N.  C.  626.         (Annotated) 

141.  The  statute  permitting  amendments 
of  an  indictment  when  the  name  of  any  per- 
son injured  by  the  commission  of  an  offense 
is  misstated  therein,  if  the  court  shall  con- 
sider that  the  defendant  cannot  be  preju- 
diced thereby,  is  not  violative  of  the  con- 
stitutional provision  that  no  person  shall 
be  held  to  answer  for  any  criminal  of- 
fense, except  on  the  presentment  or  indict- 


806 


CRIx\UNAL  LAW,  II.  e,  f. 


ment  of  a  grand  jury.  State  v.  Tolla, 
(N.  J.  Err.  &  App.)  3:  523,  62  Atl.  675,  72 
N.  J.  L.  515. 

142.  A  paper  indorsed  "A  True  Bill,"  and 
handed  by  the  foreman  of  the  grand  jury 
to  t/ie  clerk  of  court  when  the  court  is 
not  in  session,  and  when  none  of  the  grand 
jurors  except  the  foreman  is  present,  is  not 
sufficient  to  place  an  accused  on  trial  for 
an  infamous  crime,  under  the  provisions 
of  the  Federal  Constitution  that  no  per- 
son shall  be  held  to  answer  for  such  a  crime 
unless  by  an  indictment  of  the  grand  jury, 
since  to  constitute  a  valid  indictment  the 
paper  must  be  brought  publicly  into  court 
by  all  the  members  of  the  jury.  Kenegar 
V,  United  States,  26:  683,  172  Fed.  646,  97 
C.  C.  A.  172.  (Annotated) 

143.  The  presentment  of  an  alleged  in- 
dictment by  the  foreman  of  the  grand  jury 
to  the  clerk  of  court,  at  a  time  when  the 
court  is  not  in  session,  is  not  a  mere  irregu- 
larity, which  is  cured  by  a  statute  cur- 
ing defects  or  imperfections  in  matters  of 
form  only,  not  tending  to  prejudice  ac- 
cused. Renegar  v.  United  States,  26:  683, 
172  Fed.  646,  97  C.  C.  A.  172. 

144.  Although  the  court  might  replace 
with  a  copy  an  indictment  lost  from  the 
files  after  accused  was  arraigned  and  the 
trial  had  begun,  yet  its  failure  to  do  so 
will  not  prevent  the  receiving  of  the  verdict 
or  the  pronouncing  of  judgment  thereon, 
since  the  rights  of  accused  can  be  protected 
by  the  substitution  of  the  copy  afterwards. 
State  v.  Ireland,  41:  1079,  83  Atl.  453,  109 
Me.  158.  (Annotated) 

e.  Concurrent  proceedings. 

(See  also  same  heading  in  Digest  L.R.A. 
■■_     1-10.) 

As  to  offenses  against  different  sovereign- 
ties, see  infra.  III. 

/.  Pleading;  motions;  demurrer. 

(See  also  same  heading  in  Digest  LJt.A. 
1-10.) 

Appeal  from  judgment  entered  on  plea  of 
guilty,  see  Appeal  and  Error,  47. 

Review  of  discretion  as  to  permitting  ac- 
cused to  withdraw  plea  of  not  guilty 
and  attack  indictment,  see  Appeai,  and 
Error,  584. 

Discretion  as  to  permitting  withdrawal  of 
plea  of  guilty  and  allowing  jury  trial, 
see  Appeal  and  Error,  585,  590. 

Cure  of  error  in  refusing  to  permit  with- 
drawal of  plea  of  not  guilty,  see  Ap- 
peal AND  Error,  826. 

)mission  of  arraignment  and  plea,  as  ground 
for  reversal,  see  Appeal  and  Error, 
1046,  1047. 

Prejudicial  error  in  summarily  overruling 
plea  in  abatement,  see  Appeal  and 
Error,  1088. 

Right  of  accused  to  statutory  time  in  which 

.;  to  plead  on  amendment  of  indictment, 
see  Appeal  and  Error,  1478. 

Digest  1-52  L.R.A.(N.S.) 


EflFect  of  general  denial  to  throw  burden 
of  proof  on  state,  see  Evidence,  94. 

Admissibility  of  evidence  under  pleading,  see 
Evidence,  2447-2451. 

Plea  of  guilty  on  agreement  that  imprison- 
ment shall  not  exceed  certain  time,  see 
Haheas  Corpus,  42. 

Quashing  of  indictment,  see  Indictment, 
ETC.,  IV. 

Right  to  enter  judgment  without  calling 
jury  where  accused  enters  plea  of  guilty, 
see  Just,  31. 

Verification  of  plea  to  jurisdiction,  see 
Pleading,  14. 

Prohibition  to  prevent  entertaining  plea  to 
indictment,  see  Pbohibition,  15. 

Absence  from  record  of  affirmative  showing 
that  accused  was  given  opportunity  to 
plead,  see  Appeal  and  Error,  170. 

See  also  supra,  82;  infra,  228. 

145.  In  a  criminal  case,  a  plea  to  the 
jurisdiction,  which  goes  only  to  matters 
of  defense,  may  properly  be  denied.  State 
V.  Gillmore,  47":  217,  129  Pac.  1123,  88  Kan, 
835. 

146.  Although  a  plea  of  nolo  contendere 
cannot  be  employed  where  the  punishment 
must  be  imprisonment,  it  may  be  allowed 
in  a  prosecution  for  violation  of  the  in- 
ternal revenue  laws,  containing  several 
counts  in  an  indictment  under  some  of 
which  the  punishment  must  or  may  be  im- 
prisonment, if  under  other  counts  the 
punishment  could  be  fine  alone,  since  it 
might  be  regarded  as  in  the  nature  of  a 
compromise  between  the  prosecution  and 
defendant.  Tucker  v.  United  States,  41:  70, 
196  Fed.  200,  116  C,  C.  A.  62. 

(Annotated) 

147.  A  ground  of  demurrer  to  an  accusa- 
tion, "because  there  is  no  legal  contract  set 
out  in  said  accusation,  and  no  payment  or 
advances  made  are  set  out,"  only  raises  the 
question  as  to  whether  such  contract  and 
such  payment  are  set  out  in  the  accusation 
at  all,  and  not  whether  they  are  stated  with 
sufficient  particularity.  Banks  v.  State, 
2:  1007,  62   S.   E.   74,   124   Ga.   15. 

148.  A  plea  in  bar  to  a  criminal  prosecu- 
tion that  a  consular  court  (with  jurisdic- 
tion only  to  hold  a  preliminary  examination 
with  a  view  to  holding  accused  for  trial  in  a 
higher  court)  dismissed  the  charges  against 
defendant  and  served  upon  him  new 
charges  upon  which  he  was  held  to 
answer  before  the  court  now  trying 
him  does  not  necessarily  aver  an  ac- 
quittal of  the  charges  of  which  he  is  now 
accused,  but  is  consistent  with  the  conclu- 
sion that  the  consular  court  did  not  de- 
termine the  question  of  guilt  pr  innocence, 
but  merely  required  a  new  complaint  to  be 
filed,  and  held  him  to  answer  before  the 
court  having  jurisdiction  of  the  cause. 
Price  V.  United  States,  15:1272,  156  Fed.  950, 
85  C.  C.  A.  247. 

149.  Where  by  statute  the  jury  are  au- 
thorized to  inflict  the  death  penalty  for  a 
crime  which  otherwise  would  be  punishable 
by  imprisonment,  the  court  has  no  au- 
thority   to    receivo    a    plea    of   guilty,   and 


CRIMINAL  LAW,  II.  f. 


807 


thereby  withdraw  the  case  from  the  jury. 
Green  v.  United  States,  46:  1117,  40  App. 
D.   C.   426. 

150.  Accepting  a  plea  of  guilty  of  murder 
in  the  first  degree,  and  sentencing  the  ac- 
cused to  death,  without  cautioning  him  as 
to  the  gravity  of  his  admission,  or  taking 
evidence  as  to  the  circumstances  of  the 
crime,  is  not  according  to  the  forms  of  law. 
State  V.  Johnson,  22:463,  96  Pac.  26,  21 
Okla.  40,  1  Okla.  Grim.  Rep.  154. 

( Annotated ) 

151.  One  who,  upon  the  day  he  is  indicted 
for  homicide,  enters  a  plea  of  guilty  because 
he  is  informed  that  the  trial  judge  has 
stated  that  if  he  is  to  do  so,  he  had  better 
do  it  before  the  train  loaves  which  would 
take  him  to  a  jail  in  another  county,  as 
mob  violence  is  feared,  and  is  immediately 
found  guilty,  sentenced  to  death,  and  taken 
to  such  jail,  is  entitled  to  a  new  trial  and 
permission  to  withdraw  his  plea.  Little  v. 
Com.  34:  257,  133  S.  W.  1149,  142  Ky.  92. 

(Annotated) 

152.  An  accomplice  who,  under  an  agree- 
ment or  understanding  with  the  prosecut- 
ing attorney,  approved  by  or  known  to  the 

.  court,  that  he  shall  be  immune  from  fur- 
ther prosecution,  testifies  fully  and  truth- 
fully as  to  the  whole  matter,  has  an  equit- 
able right  to  such  immunity,  which  the 
court  has  no  discretion  to  take  away;  and, 
in  case  he  has  pleaded  guilty,  he  should 
be  permitted  to  withdraw  the  plea  to  per- 
mit the  entry  of  a  nolle  pros,  or  the  case 
should  be  continued  to  permit  him  to  ap- 
ply for  a  pardon.  Lowe  v.  State,  24:  439, 
73  Atl.  637,  111  Md.  1.  (Annotated) 

153.  Where  a  prisoner  has  pleaded  guilty 
to  an  indictment,  the  court  has  jurisdiction 
to  allow  him,  before  sentence,  to  withdraw 
his  plea  and  plead  not  guilty.  King  v. 
Plummer,  4  B.  R.  C.  917,  [1902]  2  K.  B. 
339.  Also  Reported  in  71  L.  J.  K.  B.  K  S. 
805,  66  J.  P.  647,  86  L.  T.  N.  S.  836,  18 
Times  L.  R.  659,  61  Week.  Rep.  137,  20 
Cox,  C.  C.  243. 

Mode   of  raising   question. 

Proper  remedy  to  question  compliance  with 
statute  requiring  preliminary  examina- 
tion, see  Indictment,  etc.,  12. 

154.  The  question  whether  an  informa- 
tion states  facts  sufficient  to  constitute  an 
ofiFense,  is  duplicitous,  or  is  defective  in 
the  description  of  the  offense,  cannot  be 
raised  by  motion  to  set  aside,  but  on'-'-  by 
demurrer.  Childs  v.  State,  33:  563,  113  Pac. 
545,  4  Okla.  Grim.  Rep.  474. 

155.  Whether  it  is  necessary  to  allege  in 
an  information  charging  larceny  from  the 
person  the  value  of  the  property  taken  is 
a  question  of  the  sufficiency  of  the  informa- 
tion, and  does  not  go  to  the  jurisdiction  of 
the  court;  and  the  only  manner  in  which 
such  question  can  be  raised  is  by  demurrer 
to  the  information  at  the  trial  under  the 
plea  of  not  guilty,  or  after  the  trial  in  ar- 
rest of  judgment.  Ex  parte  Dawson,  35: 
1146,  117  Pac.  696,  20  Idaho,  178. 
Waiver  or  admission  by  plea  or  fail- 
ure to  plead. 

156.  The  objection  that  the  record  fails 
Digest  1-52  Ii.R.A.(N.S.) 


to  show  that  the  grand  jury,  or  any  grand 
juror,  was  sworn,   is  not  waived  by  a  plea 
of  guilty  to  the  indictment.    People  v.  Grav, 
49:  1215,  103  N.  E.  552,  261  111.  140. 
Motions  generally. 

Prejudicial  error  in  arguing  motion  in  ab- 
sence of  accused,  see  Appeal  and  Ek- 
EOR,  1480,  1481. 

157.  Upon  the  hearing  of  a  motion  to 
quash  an  information  which  states  an  of- 
fense, on  the  ground  that  the  prosecution  is 
apparently  barred,  the  court  may  examine 
the  prior  proceedings  to  ascertain  the  time 
when  the  action  was  in  fact  begun.  State 
V.  White,  14:  556,  92  Pac.  829,  76  Kan.  654. 

158.  When  a  motion  is  made,  supported 
by  affidavit,  to  withdraw  a  criminal  case 
from  the  consideration  of,  and  to  discharge, 
a  jury,  on  account  of  improper  action  of 
the  officer  who  selected  and  summoned  the 
jury  or  talesmen,  and  such  motion  is  made 
as  soon  as  the  facts  stated  therein  come  to 
the  knowledge  of  the  defendant  or  his 
counsel,  and  the  matters  of  fact  therein 
stated  are  not  denied  under  oath,  they  will 
be  taken  as  confessed,  and  will  be  con- 
strued most  strongly  against  the  prosecu- 
tion, and  in  favor  of  the  defendant.  United 
States  V.  Hargo,  20:  1013,  98  Pac.  1021,  1 
Okla.  Crim.  Rep.  590. 

159.  A  motion  for  an  order  to  enable  ac- 
cused to  secure  additional  evidence  cannot 
be  held  to  have  been  made  for  delay,  where 
two  trials  have  occurred  since  it  was  first 
made,  resulting  in  disagreement  of  the  jury, 
and  the  motion  is  renewed  in  time  to  secure 
the  evidence  before  the  next  trial.  Gray  v. 
State,  22:  513,  114  S.  W.  635,  55  Tex.  Grim. 
Rep.  90. 

160.  Even  though  one  accused  of  murder 
provoked  the  difficulty,  so  as  to  be  de- 
prived of  the  right  of  self-defense,  he  is  en- 
titled to  an  order  to  enable  him  to  secure 
evidence  that  he  shot  the  other  person  in 
the  front  instead  of  the  back  of  the  body, 
as  the  state  contends  he  did,  since  he  could 
thereby  place  his  case  in  a  better  light  be- 
fore the  jury.  Gray  v.  State,  22:  513,  114 
S.  W.  635,  55  Tex.  Grim.  Rep.,  90. 
Motion  in  arrest  of  judgment. 
Raising  for  first  time  on  motion  in  arrest 

of   judgment,   objection   to   indictment, 
see  Appeal  and  Error,  361. 

161.  Matters  that  are  covered  by  the  ver- 
dict in  a  prosecution  for  crime  will  not  be 
inquired  into  on  a  motion  in  arrest  of  judg- 
ment. State  V.  Hogg,  29:  830,  53  So.  225, 
126  La.  1053. 

162.  An  objection  that  one  accused  of 
crime  was  tried  on  a  statutory  holiday  is 
not  available  when  urged  for  the  first  time 
on  a  motion  in  arrest  of  judgment.  State 
V.  Duncan,  10:  791,  43  So.  283,  118  La.  702. 

163.  A  judgment  convicting  defendant  of 
depositing  newspapers  containing  obscene 
matter  in  the  mail  should  not  be  arrested 
on  the  ground  that  the  indictment  did  not 
set  forth  the  names  of  any  of  the  persons 
to  whom  the  newspapers  were  addressed, 
but  stated  that  they  were  unknown  to  the 
grand  jury,  whereas  the  evidence  produrod 
at  the  trial  showed  that  the  grand  jury  had 


808 


CRIMINAL  LAW,  II.  g,  1. 


been  informed  of  the  names  of  at  least 
two  of  these  persons,  since  judgment  can 
be  arrested  only  for  matter  apparent  on 
the  face  of  the  record,  and  the  evidence  is 
not  part  of  the  record  for  this  purpose. 
Demolli  v.  United  States  of  America,  6:424, 
144  Fed.  363,  75  C.  C.  A.  365. 

164.  A  motion  in  arrest  of  a  judgment 
convicting  a  person  of  a  lesser,  under  an  in- 
dictment charging  a  greater,  offense,  is  prop- 
erly overruled,  where  such  indictment  con- 
tains allegations  essential  to  constitute  a 
charge  of  the  lesser,  since,  upon  the  hearing 
of  such  a  motion,  the  court  looks  only  at  the 
indictment  and  the  verdict,  the  presumption 
being  that  the  evidence  authorized  the  ver- 
dict. Watson  v.  State,  21;  i,  43  S.  E.  32, 
116  Ga.  607. 

165.  A  judgment  of  conviction  should  be 
arrested  if  based  upon  an  indictment  ma- 
terially different  from  that  found  by  the 
grand  jury.  Duty  v.  State,  22:  469,  114  S. 
W.  817,  54  Tex.  Grim.  Rep.  613. 

166.  A  conviction  for  obtaining  money  by 
false  pretenses  cannot  be  arrested  because 
the  indictment  charged  intent  to  defraud  a 
fictitious  person,  while  the  evidence  shows 
that  the  real  person  was  not  known  in  the 
transaction,  where  the  statute  provides  that 
it  shall  be  sufficient  to  charge  intent  to  de- 
fraud without  alleging  an  intent  to  defraud 
any  particular  person.  State  v.  Ice  & 
Fuel  Co.  52:  216,  81  S.  E.  737,  166  N.  C.  366. 

g.  Former  jeopardy. 

.1  1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Raising  question  of,  on  niotion  for  new  trial, 
see  Appeal  and  Ebbob,  679. 

Effect  of  acquittal  in  criminal  court  on 
right  of  association  to  try  member  for 
same  acts,  see  Associations,  8. 

Federal  constitutional  provision  as  to  jeop- 
ardy as  limitation  on  states,  see  Con- 
stitutional Law,  26. 

Setting  aside  conviction  to  enable  accused 
to  plead  former  jeopardy,  see  New 
Tbial,  11. 

Who  may  plead  that  statute  is  in  conflict 
with  constitutional  provision  as  to  for- 
mer jeopardy,  see  Statutes,  34. 

Refusal  to  instruct  as  to,  see  Tbial,  879. 

See  also  supra,  138,  148.        .        , 

167.  Jeopardy,  in  its  constitutional  and 
common-law  sense,  has  a  strict  application 
to  criminal  prosecutions  only;  and  the  word 
"jeopardy,"  as  used  in  the  Constitution,  sig- 
nifies the  danger  of  conviction  and  pun- 
ishment which  the  defendant  in  a  criminal 
prosecution  incurs  when  put  upon  trial  be- 
fore a  court  of  competent  jurisdiction,  un- 
der an  indictment  or  information  sufficient 
in  form  and  substance  to  sustain  a  con- 
viction. Rupert  V.  State,  45:  60,  131  Pac. 
713,  9  Okla.  Crim.  Rep.  226, 

168.  A  statute  providing  that  a  nolle 
prosequi  cannot  be  entered  after  any  testi- 
Digest  1-52  L.B.A.(N.S.) 


mony  has  been  introduced  for  the  defend- 
ant is  unconstitutional  in  so  far  as  it  at- 
tempts to  give  tlie  right  to  dismiss  at  any 
time  before  the  defendant  offers  proof,  since 
to  that  extent  it  would  take  away  from  citi- 
zens the  constitutional  guaranty  of  immu- 
nity from  second  jeopardy.  United  States 
V.  Aurandt,  27:  1181,  107  Pac.  1064,  15  N. 
M.  292. 

169.  The  constitutional  provision  that  no 
person  shall  "be  twice  put  in  jeopardy  of 
life  or  liberty  for  the  same  offense,"  and  the 
common-law  principle  therein  declared,  are 
broad  enougii  to  mean  that  no  one  can  be 
twice  lawfully  punished  for  the  same  of- 
fense; and  therefore,  when  a  court  has  ren- 
dered judgment  and  imposed  sentence  upon 
a  plea  of  guilty  for  an  offense  charged,  and 
such  judgment  and  sentence  have  been  exe- 
cuted and  satisfied,  the  court  is  without 
jurisdiction  to  render  a  second  judgment 
and  sentence  upon  the  same  charge.  Ru- 
pert V.  State,  45:  60,  131  Pac.  713,  9  Okla. 
Crim.  Rep.  226. 

170.  The  terms  "jeopardy  of  life  and  lib- 
erty for  the  same  offense,"  "jeopardy  of  life 
and  limb,"  "jeopardy  for  the  same  offense," 
"twice  in  jeopardy  of  punishment,"  and 
other  similar  provisions  used  in  the  vari- 
ous Constitutions,  are  to  be  construed  as 
meaning  substantially  the  same  thing. 
Stout  v.  State  ex  rel.  Caldwell,  45:  884,  130 
Pac.  553,  36  Okla.  744. 

171.  A  constitutional  provision  that  no 
person  shall  "be  twice  put  in  jeopardy  of 
life  and  liberty  for  the  same  offense"  is  not 
intended  to  apply  to  a  civil  proceeding 
which  affects  merely  property  rights,  even 
though  such  proceeding  is  in  part  a  pun- 
ishment for  an  offense.  Stout  v.  State  ex 
rel.  Caldwell,  45:  884,  130  Pac.  553,  36 
Okla.  744. 

172.  One  placed  on  trial  under  an  indict- 
ment which  names  no  offense  is  not  in 
jeopardy.  Bennett  v.  Com.  43:  419,  150 
S.  W.  806,  150  Ky.  604. 

173.  A  statute  imposing  as  the  punish- 
ment for  an  offense  therein  described,  a 
penalty  to  be  recovered  at  the  suit  of  the 
state  and  a  fine  and  imprisonment  to  be 
administered  in  a  criminal  prosecution,  is 
not  in  conflict  with  a  constitutional  pro- 
vision that  no  person  shall  "be  twice  put 
in  jeopardy  of  life  and  liberty  for  the 
same  offense."  Stout  v.  State  ex  rel.  Cald- 
well,  45:  884,    130   Pac.   553,   36   Okla.    744. 

174.  Where  one  accused  of  a  felony  is  put 
upon  trial  under  an  information  defective 
upon  its  face,  and,  after  trial  begun,  the 
information  is  amended  and  the  trial  pro- 
ceeded with,  there  being  no  change  in  the 
offense  charged,  the  accused  is  not  thereby 
placed  in  jeopardy  a  second  time.  McKay 
V.  State,  39:  714,  132  N.  W.  741,  90  Neb. 
63,  135  N.  W.  1024,  91  Neb.  281. 

175.  One  indictment  for  an  offense  is  not 
a  bar  to  a  second,  where  the  statute  pro- 
vides that  the  second  shall  supersede  the 
first.  People  v.  Rosenthal,  46:  31*  90  N.  E. 
991,  197  N.  Y.  394. 

176.  The  judgment  of  a  court  having  no 
jurisdiction  of  the  subject-matter  does  not 


CRIMINAL  LAW,  11.  g,  1. 


809 


constitute  a  bar  to  a  second  prosecution 
based  upon  the  same  charge  as  that  upon 
which  the  first  judgment  was  pronounced. 
Peterson  v.  State,  14:  292,  112  N.  W.  306, 
79  Neb.   132. 

177.  A  prisoner  is  not  in  jeopardy  while 
one  juryman  has  not  taken  the  required 
oath,  and  is  not  therefore  entitled  to  dis- 
charge because  of  former  jeopardy,  if,  upon 
discovering  the  failure  to  take  the  oath,  the 
jury  are  resworn  and  the  trial  begun  de 
novo.  State  v.  Herold,  40:  1213,  123  Pac. 
1076,  68  Wash.  654.  (Annotated) 

178.  No  jeopardy  attaches  where  the  jury 
is  sworn  before,  and  is  not  resworn  after, 
arraignment  and  plea  of  the  accused,  al- 
though all  the  testimony  was  taken  after 
arraignment  and  plea  were  had,  and  the 
trial  continued  to  its  conclusion.  United 
States  V.  Aurandt,  27:  1181,  107  Pac.  1064, 
15  N.  M.  292.  (Annotated) 

179.  In  case  of  an  accused  person,  after 
having  been  put  in  jeopardy,  taking  or 
consenting  to  any  proceeding  revdfering 
necessary  a  new  or  additional  trial  in  order 
to  fully  conclude  the  case,  he  cannot  in 
such  further  trial  successfully  claim  immu- 
nity on  the  ground  of  former  jeopardy  cre- 
ated by  the  first  proceeding.  Obom  v. 
State,  31:  966,  126  N.  W.  737,  143  Wis.  249. 

180.  A  statute  permitting  the  commission 
of  crime  to  be  enjoined  does  not  violate  a 
constitutional  provision  forbidding  second 
jeopardy,  on  the  theory  that,  if  it  was  not 
obeyed,  defendant  might  be  punished  for 
contempt,  and  also  for  the  commission  of 
the  crime.  Ex  parte  Allison,  2:  iiii,  90  S. 
W.  870,  99  Tex.  455.  (Annotated) 

181.  A  pending  appeal  from  conviction  of 
an  unlawful  sale  of  intoxicating  liquor 
will  prevent  the  conviction  from  being  a 
bar  to  another  prosecution  for  the  same 
ofl'ense.  Dupree  v.  State,  23:  596,  120  S.  W. 
871,  56  Tex.  Crim.  Rep.  562.      (Annotated) 

182.  One  found  by  the  jury  to  be  insane 
at  time  of  trial  cannot  plead  former  jeopar- 
dy when  arraigned,  a  second  time  on  the 
same  charge,  although  the  court  accepted 
a  verdict  of  guilty,  which  the  jury  returned 
together  with  its  finding  of  insanity,  if  it 
subsequently  set  aside  such  verdict  and 
granted  a  new  trial.  Com.  v.  Endrukat, 
35:  470,  80  Atl.  1049,  231  Pa.  529. 

(Annotated) 

183.  A  statute  providing  for  increased 
punishment  of  persons  convicted  of  certain 
crimes  where  it  appears  that  they  had  previ- 
ously been  convicted  of  a  felony  is  not  in 
violation  of  the  constitutional  provision 
that  no  person  shall  be  twice  put  in  jeop- 
ardy of  punishment  for  the  same  offense. 
State  v.  Findling,  49:  449,  144  K  W.  142, 
123  Minn,  413. 

184.  A  defendant  who,  upon  his  plea  of 
guilty  of  a  violation  of  gam«  laws,  which 
by  statute  was  made  a  misdemeanor,  was 
sentenced  to  pay  a  fine, — a  punishment 
that  was  authorized  by  the  statute, — and 
who,  on  the  same  day,  paid  the  fine  and 
satisfied  the  judgment,  cannot  thereafter, 
although  in  the  same  term  of  court,  bo  re- 
arrested and  again  sentenced  to  pay  a  fine 
Digest  1-52  L.R.A.(N.S.) 


and  suffer  imprisonment.     Rupert  v.  State, 
45:  60,  131  Pac.  713,  9  Okla.  Crim.  Rep.  226. 

185.  Placing  one  on  trial  for  perjury 
which  secured  his  acquittal  of  another  of- 
fense is  not  placing  him  twice  in  jeopardy 
for  the  same  offense.  Allen  v.  United 
States,  39:  385,  194  Fed.  664,  114  C.  C.  A. 
357.  (Annotated) 
"What   constitntes   an   acquittal. 

See  also  infra,  195. 

186.  The  entry  of  a  nolle  prosequi  after 
the  jury  had  been  sworn  and  a  part  of  the 
testimony  for  the  prosecution  taken  is  tan- 
tamount to  an  acquittal  upon  the  charge 
made  by  the  indictment,  since  jeopardy  re- 
sults when,,  upon  a  valid  indictment  and 
issue  joined  before  a  competent  court,  the 
jury  has  been  impaneled  and  sworn  to  try 
defendant's  cause.  United  States  v.  Au- 
randt, 27:  1181,  107  Pac.  1064,  15  N.  M.  292, 

187.  An  erroneous  instruction  withdraw- 
ing from  the  consideration  of  the  jury  in  a 
criminal  case  the  minor  grades  of  the  of- 
fense is  not  an  acquittal  of  them  which  will 
sustain  a  plea  of  former  jeopardy  upon  a 
subsequent  trial.  Montgomery  v.  State,  18: 
339,  116  N.  W.  876,  136  Wis.  119. 

188.  Convicting  one  of  murder  in  which 
premeditated  design  is  an  element  is  not 
necessarily  an  acquittal  of  manslaughter, 
which  requires  a  finding  of  heat  of  passion 
for  conviction.  Montgomery  v.  State,  18: 
339,  116  N.  W.  876,  136  Wis.  119. 

189.  The  finding  of  the  appellate  court 
that  the  evidence  was  not  safficient  to  sus- 
tain a  verdict  convicting  one  of  murder  in 
the  first  degree  is  not  an  acquittal  of  that 
offense.  Montgomery  v.  State,  18:  339,  116 
N.  W.  876,  136  Wis.  119. 

Trial  ^vithout  arraigniaent  or  plea. 
See  also  infra,  192,  193. 

190.  One  is  not  put  in  jeopardy  by  an  in- 
dictment upon  which  he  is  not  arraigned 
and  to  which  he  does  not  demur  or  plead. 
People  V.  Rosenthal,  46:  31,  90  N.  E.  991, 
197  N.  Y.  394. 

Discharge  of  jury. 

191.  In  case  the  trial  judge  in  the 
progress  of  a  trial,  because  of  any  emer- 
gency, concludes  that  it  is  imperatively 
necessary  for  him  to  suspend  the  trial  in- 
definitely, and  especially  if  counsel  for  the 
accused  concurs  in  that  view  without  pro- 
test by  the  accus«d  brought  to  the  atten 
tion  of  the  court,  and  in  such  situation  the 
jury  is  discharged,  leaving  the  trial  to  be 
taken  up  again  before  another  jury,  the 
jeopardy  created  by  the  partial  trial  is 
thereby  wholly  superseded.  Oborn  v.  State, 
31:  966,  126  N.  W.  737,  143  Wis.  249. 

192.  The  discharge  of  the  jury  against  the 
objection  of  accused  in  a  criminal  case,  be- 
cause the  trial  had  been  begun  without  ar- 
raigning him  and  requiring  him  to  plead  to 
the  indictment,  is  an  acquittal  which  will 
entitle  him  to  the  constitutional  protection 
against  second  jeopardy.  Stnte  v.  King- 
horn,  27:  136,   105   Pac.  '234,  56  Wash.   131. 

(Annotated) 

193.  T^at  the  trial  of  an  accused  is  begun 
before  he  is  arraigned  and  required  to  plead 
to  the  indictment  does  not  prevent  the  com- 


810 


CRIMINAL  LAW,  II.  g,  1. 


pletion  of  tJie  trial  after  he  has  been  ar- 
raigned and  required  to  plead,  so  as  to  au- 
thorize the  discharge  of  the  jury  and  tlie 
summoning  of  another.  State  v.  Kinghorn, 
27:  136,  105  Pac.  234,  56  Wash.  Ibl. 

194.  The  discharge  of  a  jury  in  a  criminal 
case  after  they  have  deliberated  for  two 
hours  and  have  reported  that  they  cannot 
agree  will  not  support  a  plea  of  former 
jeopardy  interposed  on  a  subsequent  trial, 
unless  the  court  in  discharging  the  jury 
manifestly  abused  its  discretion.  State  v. 
Harris,  11:  178,  44  So.  22,  119  La.  297. 

(Annotated) 

195.  An  entry  upon  the  docket  of  a  justice 
of  the  peace  in  a  misdemeanor  case,  reciting 
that  the  jury,  after  being  out  for  a  reason- 
able time,  reported  that  it  was  impossible 
for  them  to  agree,  and  that  the  court,  after 
being  satisfied  of  that  fact,  discharged  them, 
shows  that,  as  a  result  of  a  judicial  investi- 
gation of  the  question,  a  finding  was  made 
that  the  discharge  of  the  jury  was  neces- 
sary, and  prevents  it  from  having  the  effect 
of  an  acquittal.  State  v.  Huff,  la:  1094,  90 
Pac.  279,  75  Kan.  585. 

196.  The  abandonment  by  the  prosecuting 
attorney,  after  the  evidence  is  in,  of  one  of 
two  counts  contained  in  the  information, 
will  not  operate  as  a  bar  to  a  further  prose- 
cution, although  thereafter  the  jury  is  neces- 
sarily discharged  and  the  case  properly  dis- 
missed without  prejudice.  State  v.  Huff, 
12:  1094,  90  Pac.  279,  75  Kan.  585. 

197.  Disclosure  by  a  juror  after  a  crimi- 
inal  trial  has  commenced,  of  the  fact  that 
he  entertained  a  prejudice  growing  out  of 
an  incident  that  occurred  in  his  father's 
family,  revived  in  his  mind  by  the  testi- 
mony given  in  the  case,  and  which  unfitted 
him  to  sit  as  an  impartial  juror,  is  an 
"accident"  within  the  meaning  of  the  term 
as  used  in  Kan.  Code  Civ.  Proc.  §  281 
(Gen.  Stat.  1905,  p.  5176),  providing  that 
the  jury  may  be  discharged  by  the  court  on 
account  of  the  sickness  of  a  juror  or  other 
accident  or  calamity.  State  v.  Hansford, 
14:  548,  92  Pac.  551,  76  Kan.  678. 

198.  The  accused  will  not  be  deemed  to 
have  been  twice  put  in  jeopardy  for  the 
same  offense,  where  the  jury  impaneled  to 
try  him  was  discharged  by  the  court,  upon 
learning  and  determining  from  an  inquiry 
judicially  conducted,  that  one  of  the  jurors 
was  prejudiced  and  unfit  to  sit  in  the  case. 
State  V.  Hansford,  14:  548,  92  Pac.  551,  76 
Kan.  678.  (Annotated) 

199.  The  discharge  of  a  jury  in  a  criminal 
case  on  Sunday,  if  unlawful,  and  thereby 
equivalent  to  an  acquittal,  will  not  entitle 
the  defendant,  afterwards  committed  on  a 
judicial  day  for  further  trial,  to  discharge 
on  habeas  corpus,  since  the  unlawful  dis- 
charge of  the  jury  does  not  devest  the  trial 
court,  where  the  question  of  former  jeopardy 
must  be  determined,  of  jurisdiction.  Hovey 
V.  Sheffner,  15:  2*7,  93  Pac.  305.  16  Wyo. 
254.  (Annotated) 

200.  The  discharge  of  the  jury  in  a  crimi- 
inal  case  without  the  consent  of  accused, 
Digest  1-52  L.R.A.(N.S.) 


after  they  had  deliberated  more  than  forty- 
three  hours  and  announced  that  they  were 
not  able  to  agree  unless  given  an  instruc- 
tion as  to  the  possible  future  disposition  of 
accused,  to  which  they  were  not  entitled,  is 
not  an  acquittal,  which  will  prevent  his  re- 
trial on  the  same  charge.  State  v.  Barnes, 
23:  932,  103  Pac.  792,  54  Wash.  932. 
Reversal     of     fi,r8t     conviotion;     new 

trial. 
Infringement  of  guaranty  of  equal   protec- 
tion of  the  laws,  see  Constitutional 
Law,  330. 
Due  process  of  law  as  to,  see  Constitution- 
al Law,  629. 

201.  Under  a  constitutional  provision  that 
no  person  shall  be  put  in  jeopardy  of  life 
or  liberty  more  than  once  for  the  same  of- 
fense, save  on  his  own  motion  for  a  new 
trial,  after  conviction  or  in  case  of  mistrial, 
a  person  who  has  been  indicted  for  murder, 
and  convicted  of  voluntary  manslaughter, 
by  voluntarily  seeking  and  obtaining  a  new 
trial  subjects  himself  to  another  trial  gen- 
erally for  the  offense  charged  in  the  indict- 
ment; and,  upon  such  trial,  cannot  success- 
fully interpose  a  plea  of  former  acquittal 
of  the  crime  of  murder,  or  former  jeopardy 
in  regard  thereto.  Brantley  v.  State,  22: 
959,  64  S.  E.  676,  132  Ga.  573. 

(Annotated) 

202.  One  procuring  a  reversal  of  a  con- 
viction of  a  lesser  crime  than  that  with 
which  he  was  charged,  for  mistrial,  irreg- 
ularity, or  prejudicial  error,  and  the  grant- 
ing of  a  new  trial,  cannot  avoid  trial  on  the 
original  charge  on  the  theory  of  prior  a-?- 
quittal,  where  the  statute  provides  that  the 
granting  of  a  new  trial  places  the  parties 
in  the  same  condition  as  if  no  trial  had 
been  had.  Gibson  v.  Somers,  24:  504,  103 
Pac.  1073,  31  Nev.  531. 

203.  The  setting  aside,  upon  motion  of 
accused,  of  a  verdict  finding  him  guilty  of 
manslaughter  upon  an  indictment  for  mur- 
der, opens  the  case  for  trial  on  the  original 
indictment  for  the  higher  offense,  since  he 
thereby  waives  the  constitutional  protec- 
tion against  second  jeopardy.  State  v. 
Gillis,  5:  571,  53  S.  E.  487,  73  S.  C.  318. 

(Annotated) 

204.  The  reversal  for  a  new  trial  upon  de- 
fendant's appeal  of  a  conviction  of  man- 
slaughter upon  a  charge  of  murder,  sub- 
jects him  to  a  retrial  upon  the  original  ac- 
cusation. State  v.  Ash,  39:  611,  122  Pac. 
995,  68  Wash.  194. 

205.  One  securing  a  new  trial  after  being 
convicted  of  an  attempt  on  an  indictment 
for  rape  can,  on  the  second  trial,  be  tried 
only  for  the  attempt,  where  the  statute 
provides  that  if  a  verdict  be  set  aside  and 
a  new  trial  granted,  the  accused  shall  not 
be  tried  for  any  higlier  offense  than  that- 
of  which  he  was  convicted  on  the  last  trial, 
and  it  is  immaterial  that  the  maximum 
punishment  is  the  same  for  attempt  as  for 
the  principal  offense.  Gates  v.  Com,  44: 
1047,  69   S.   E.   520,    111    Va.   8?,!. 

(Annotated) 


CRIMINAL  LAW,  II.  g,  2. 


811 


2.  Different   offenses;    different   modes 
of  describing  same  act. 

\  :''■.■.    <     ■ 

(See   also   same   heading   in  Digest   L.R.A. 
1-70.) 

As  to   offenses  against   different   sovereign- 
ties, see  infra,  III. 

206.  In  a  criminal  action  where  the  de- 
fendant in  a  plea  in  bar  relies  upon  the  fact 
that,  after  a  jury  had  been  impaneled,  the 
state  abandoned  one  of  two  counts  in  a 
complaint  formerly  prosecuted  against  him, 
and  such  counts  appear  to  have  been  in- 
tended as  different  methods  of  charging  the 
same  offense,  he  must  show,  in  order  for  the 
plea  to  be  good  upon  its  face,  not  only  that 
the  C(  mt  which  was  abandoned  charged  the 
identical  offense  for  which  he  is  now  prose- 
cuted, but  that  the  two  counts  related  to 
separate  offenses.  State  v.  Huff,  12:  1094, 
90  Pac.  279,  75  Kan.  585. 

207.  Where,  during  the  trial  of  a  mis- 
demeanor before  a  magistrate,  it  appears 
that  the  defendant  should  be  put  upon  his 
trial  for  a  felony,  and  the  magistrate  or- 
ders a  new  complaint  to  be  filed,  and  under 
a  statutory  provision  that  in  such  cases 
the  magistrate  shall  stop  all  further  pro- 
ceedings before  him,  and  proceed  as  in 
other  criminal  cases  exclusively  cognizable 
before  the  district  court,  proceeds  to  sit  as 
an  examining  magistrate,  finds  probable 
cause,  and  binds  the  accused  over  to  the 
district  court  to  answer  to  the  felony,  the 
fact  that  the  accused  had  entered  upon  his 
trial  before  the  court  having  jurisdiction 
of  the  misdemeanor  will  not  constitute  a 
good  plea  in  bar  to  the  information  for  the 
felony  in  the  district  court.  Larson  v. 
State,  44:  617,  140  N.  W.  176,  93  Neb.  242. 

( Annotated ) 

208.  Conviction  of  failure  to  maintain 
one's  wife,  contrary  to  the  provisions  of 
the  statute,  is  not  a  bar  to  a  prosecution 
for  continued  failure  to  maintain  her  after 
serving  the  sentence  on  the  former  convic- 
tion. State  V.  Morgan,  40:  615,  136  N.  W. 
521,  155  Iowa,  482.  (Annotated) 

209.  Acquittal  of  a  sales  agent  upon  a 
charge  of  embezzlement  and  larceny  in  re- 
taining funds  collected  from  customers  is 
no  bar  to  a  subsequent  prosecution  for  for- 
gery in  making  false  notes  of  the  customers, 
although  the  two  indictments  relate  to  the 
same  transaction.  Spears  v.  People,  4:  402, 
77  N.  E.  112,  220  111.  72.  (Annotated) 

210.  A  conviction  of  simple  larceny  before 
a  justice  of  the  peace  will  bar  a  subsequent 
prosecution  for  larceny  from  a  dwelling 
based  on  the  same  transaction,  although  the 
justice  had  no  jurisdiction  of  the  latter  of- 
fense. State  V.  Sampson,  42:967,  138  N. 
W.  473,  157  Iowa,  257. 

211.  The  state  cannot,  after  prosecuting 
before  a  justice  of  the  peace  for  an  offense 
within  his  jurisdiction,  avoid  the  effect  of 
the  judgment  upon  the  theory  that  such  an 
offense  was  an  ingredient  of  a  higher  crime 
of  which  the  justice  had  no  jurisdiction. 
Digest  1-52  L.R.A.(N.S.) 


State  V.   Sampson,  42:  967,   138  N.   W.  473, 
157  Iowa,  257. 

212.  One  tried  upon  an  indictment  char- 
ging embezzlement  of  a  letter  containing  a 
draft  for  $31  was  not  thereby  placed  in  for- 
mer jeopardy  as  to  a  second  indictment 
identical  with  the  first,  with  the  exception 
that  the  contents  of  the  letter  was  stated 
to  be  an  article  of  value  with  further  de- 
scription unknown,  where  the  proof  under 
the  latter  showed  that  the  article  of  value 
was  a  war  settlement  warrant  for  $31.57, 
since  the  testimony  introduced  to  sustain 
the  latter  charge  would  not  have  been  ad- 
missible to  sustain  the  former.  United 
States  V.  Aurandt,  27:  1181,  107  Pac.  1064, 
15  N.  M.  292. 

213.  A  verdict  of  guilty,  under  rulings 
and  instructions  of  the  court  that  an  in- 
formation charges  robbery,  which  is  set 
aside  because  the  information  only  charges 
grand  larceny,  does  not  entitle  accused  to 
a  discharge  on  the  theory  that  he  has  been 
in  jeopardy  on  the  latter  charge.  People 
V.  Ham  Tong,  24:  481,  102  Pac.  263,  155  Cal. 
579.  (Annotated) 

214.  A  conviction  of  felonious  assault  at 
a  time  when  the  victim  is  still  alive  is  no 
bar  to  a  subsequent  prosecution  for  murder 
in  case  he  dies.  Com.  v.  Ramunno,  14:  209, 
68   Atl.    184,   219   Pa.   204.  (Annotated) 

215.  The  fact  that  the  Constitution  pre- 
scribes the  punishment  for  the  sale  of  in- 
toxicating liquors  does  not  prevent  the  leg- 
islature from  imposing  other  and  different 
or  greater  punishment  for  using  one's  prem- 
ises, or  permitting  them  to  be  used,  for  the 
sale  of  intoxicating  liquors,  as  the  two  of- 
fenses are  separate  and  distinct,  and  re- 
quire different  proof  to  support  them. 
Stout  V.  State  ex  rel.  Caldwell,  45:  884,  130 
Pac.  553,  36  Okla.  744. 

216.  An  acquittal  of  the  charge  of  sell- 
ing intoxicating  liquor  to  a  certain  person 
on  a  specified  date  prevents  a  subsequent 
prosecution  for  the  sale  of  liquor  to  the 
same  person  on  another  date  prior  to  the 
first  trial,  where  proof  of  the  date  of  sale 
was  not  necessary  to  conviction.  State  v. 
Freeman,  45:  977,  77  S.  E.  780,  162  N.  C. 
594.  (Annotated) 

217.  A  conviction  of  keeping  a  bawdy- 
house,  upon  an  instruction  authorizing  con- 
viction if  the  jury  find  that  accused  iiad 
kept  such  house  at  the  place  alleged  within 
twelve  months  before  the  filing  of  the  in- 
formation, bars  another  prosecution  for  the 
maintenance  of  such  house  at  the  place 
alleged  within  the  twelve  months,  although 
on  different  days  from  those  specified  in 
the  first  information.  State  v.  Lismore, 
29:  721,  126  S.  W.  855,  94  Ark.  211. 

218.  A  conviction  of  illegal  registration 
to  vote  is  not  a  bar  to  a  prosecution  for 
false  swearing  which  was  necessary  to  ef- 
fect the  registration,  because  the  right  to 
it  was  challenged,  where  accused  might 
have  been  guilty  of  the  former  offense  with- 
out taking  an  oath.  Hughes  v.  Com.  31 : 
693,  115  S.  W.  744,  131  Ky.  502. 

(Annotated) 

219.  A  statute  providing  that  a  prisoner 


812 


CRIMINAL  LAW,  II.  h— IV.  a. 


in  a  state  prison  for  a  term  less  than  life,  who 
shall  escape,  shall  be  punishable  by  impris- 
onment for  a  term  equal  to  the  term  he  is 
serving,  the  second  term  of  imprisonment  to 
commence  from  the  time  he  would  otherwise 
have  been  discharged,  does  not  place  a  per- 
son churged  thereunder  a  second  time  in 
jeopardy  for  the  same  offense.  Re  Mallon, 
22:  1 123,  102  Pac.  374,  16  Idaho,  737. 

(Annotated) 

220.  Acquittal  of  a  conspiracy  to  induce 
a  railroad  company  to  give  rebates  is  not 
a  bar  to  a  prosecution  for  inducing  shippers 
to  receive  them.  Thomas  v.  United  States, 
17:  720,  156  Fed.  897,  84  C.  C.  A.  477. 

h.  Determining  sanity  of  accused;  pro- 
ceeding with,  trial. 

(See  also  same  heading  in  Digest  L.B.A. 
1-10.) 

Presumption  and  burden  of  proof  as  to  san- 
ity, see  Appeal  and  Ebbob,  930;  Evi- 
dence, 221-223. 

Opinion  evidence  as  to  insanity,  see  Evi- 
dence, VII.  e. 

Relevancy  of  evidence  as  to,  generally,  see 
Evidence,  1602-1606. 

SuflBciency  of  proof  of  insanity,  see  Evi- 
dence, 2358-2361. 

Forgery  as  evidence  of  insanity,  see  Incom- 
petent Persons,  1. 

Conclusiveness  of  decision  against  accused 
on  special  issue  i,  to  insanity,  see  Judg- 
ment, 89, 

Right  to  have  question  of  sanity  tried  by 
jury,  see  Jury,  29,  53. 

Permitting  reading  to  jury  of  evidence  taken 
upon  issue  of  sanity  of  accused,  see 
Trial,  24. 

Insanitv  as  question  for  jury,  see  Trial, 
238-241. 

Instructions  as  to  insanity,  see  Trial,  908, 

J       914,  915. 

III.  Offenses     against     different     sov- 
ereignties. 

(See  also   same   heading  in  Digest  L.R.A. 

1-10.) 

Concurrent  proceedings  in  different  courts, 
see  supra,  II.  e. 

State  and  mnnicipal. 

221.  Conviction  for  violation  of  a  district 
ordinance  is  no  bar  to  a  prosecution  by  tlic 
state  for  the  same  acts.  Ehrlick  v.  Com. 
10:  995,  102  S.  W.  289,  125  Ky.  742. 

222.  A  conviction  for  a  violation  of  a  city 
or  village  ordinance  is  not  a  bar  to  a  sub- 
sequent conviction  upon  the  same  state  of 
facts,  for  a  violation  of  a  state  statute.  Re 
Henry,  21:  207,  99  Pac.  1054,  15  Idaho,  755. 

223.  Conferring  upon  a  city  council  exclu- 
sive legislative  power,  and  authori7,in<r  the 
prevention  of  gaming  and  gambling  houses, 
do  not  make  inapplicable  within  the  city 
limits  a  statute  punishing  public  nuisances 
consisting  of  the  keey)ing  of  gambling 
Digest  1-52  I<.R.A.(M.S.) 


houses.    State  v.  Ayers,  10:  992,  88  Pac.  653, 
49  Or.   61. 

224.  A  valid  municipal  ordinance  provid- 
ing for  the  punishment  of  anyone  maintain- 
ing or  participating  in  a  gambling  game  is 
not  superseded  by  a  subsequent  statute 
making  the  carrying  on  of  a  gambling  game 
a  felony.  Seattle  v.  Macdonald,  17:  49,  91 
Pac.  952,  47  Wash.  298.  (Annotated) 

225.  ITxe  maintenance  of  a  place  of  any 
character  where  persons  are  allowed  to  bet, 
o*fer  to  bet,  place  an  order  for  a  bet,  or 
telegraph  or  telephone  bets,  on  races  of  any 
sort,  cannot,  in  the  absence  of  express  legis- 
lative authority,  properly  be  made  penal  by 
a  municipal  ordinance,  as  it  is  prohibited  by 
Ga.  Pen.  Code  1895,  §  398.  Thrower  v.  At- 
lanta, i:  382,  52  S.  E.  76,  124  Ga.  1. 

(Annotated) 

IV.  Sentence  and  imprisonment, 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of  error  in  sentence  favorable  to  con- 
vict, see  Appeal  and  Ebbob,  523. 

Validity  of  sentence  imposed  upon  plea  of 
guilty  where  co-conspirators  are  ac- 
quitted, see  Conspiracy,  10. 

For  violation  of  health  regulation,  see  Con- 
stitutional Law,  116. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,   337-340. 

Denial  of  due  process  by  statute  fixing 
punishment  for  crime,  see  Constitu- 
tional Law,  630. 

Right  to  recall  and  sentence  to  longer  term 
person  found  guilty  of  contempt  of 
court,  see  Contempt,  104, 

Review  of  sentence  on  habeas  corpus,  see 
Habeas  Corpus,  36,  41-47. 

Turning  over  pay  of  convict  to  abandoned 
wife,  see  Husband  and  Wife,  213. 

Execution  for  crime  as  risk  insured  against, 
see  Insurance,  702-704. 

Uniformity  of  punishment  for  illegal  sale  of 
liquors,  see  Intoxicating  Liquors,  30. 

In  case  of  illegal  combination  in  restraint 
of  trade,  see  Monopoly  and  Combina- 
tions, 22. 

Sufficiency  of  title  of  statute  as  to  mode  of 
inflicting  punishment  of  death,  see 
Statutes,  149. 

Retrospective  operation  of  statute  as  to,  see 
Statutes,  294,  307-309. 

Submitting  to  jury  question  of  form  of 
punishment,  see  Trial,  92. 

Sufficiency  of  verdict  to  sustain  sentence, 
see  Trial,  1151. 

Commutation  of  sentence  as  affecting  credi- 
bility of  convict,  see  Witnesses,  164, 

See  also  supra,  3. 

226.  WTiere  no  penalty  is  prescribed  for 
an  offense  described  by  statute  the  common- 
law  penaltv  may  be  imposed.  Union  Col- 
li erv  Co.  v'  Reg.  2  B.  R.  C.  222,  31  Can.  S, 
C.  81. 

227.  A  provision  in  a  sentence  for  selling 


CRIMINAL  LAW,  IV.  b. 


813 


intoxicating  liquor  contrary  to  law  after 
the  imposition  of  fine  and  imprisonment,  to 
the  effect  that  the  imprisonment  part  shall 
be  canceled  on  payment  of  the  fine  if  the 
accused  shall  recognize  to  refrain  from  fur- 
ther sales,  if  construed  as  imposing  an 
alternative  sentence,  is  void.  State  v. 
Sturgis,   43:  443,   85   Atl.   474,   110   Me.   96. 

228.  A  plea  of  guilty  to  an  indictment 
charging  burglary  and  receiving  stolen 
property  will  support  a  sentence  for  burg- 
lary, if  the  evidence  shows  accused  to  have 
been  guilty  of  that  crime,  although  there 
was  but  a  single  transaction  and  he  could 
not  therefore  be  guilty  of  both  crimes. 
People  V.  Carr,  41:  1209,  99  N.  E.  357,  255 
111.  203. 

Delay  in  executing. 

229.  A  sentence  is  not  invalid  because  of 
a  direction  by  the  court  to  the  clerk  not  to 
issue  capias  upon  it  for  a  specified  num- 
ber of  day&.  Re  Hinson,  36:  352,  72  S.  E. 
310,  156  N.  C.  250. 

230.  One  who,  upon  receiving  a  sentence 
of  imprisonment  which  the  clerk  is  instruct- 
ed not  to  enforce  for  a  specified  number  of 
days,  leaves  the  county,  and  remains  absent 
for  the  specified  term,  cannot  avoid  serv- 
ing the  sentence  upon  returning  into  the 
county,  upon  the  plea  that  the  specified 
time  had  expired.  Re  Hinson,  36:  352,  72 
S.  E.  310,  156  N.  C.  250. 

Correction  of  judgment. 
See  also  infra,  300. 

231.  The  court  may,  after  the  close  of 
the  term,  amend  a  judgment  of  conviction 
in  a  criminal  case  nunc  pro  tunc,  so  as 
to  charge  accused  with  the  costs  as  required 
by  statute.  Villines  v.  State,  43:  207,  151 
S.  W.  1023,  105  Ark.  471. 

Of  insane    criminals. 

Statute  providing  for  confinement  of  insane 
criminals  as  ex  post  facto  law,  see  Con- 
stitutional Law,  37. 

Due  process  of  law  as  to,  see  CoNSTiTtrnoN- 
AL  Law,  547,  568,  569,  602,  603. 

Police  power  as  to,  see  Constitxjtionax 
Law,  750. 

Sufficiency  of  evidence  to  s'how  insanity,  see 
Evidence,  2361. 

Habeas  corpus  to  secure  release  of  one  com- 
mitted to  asylum  for  insane  criminals, 
see  Habeas  Corpus,  52. 

Right  of  one  acquitted  of  murder  on  ground 
of  insanity  to  have  question  of  sanity 
submitted  to  jury,  see  Jury,  53. 

Retroactive  effect  of  statute  as  to  liberation 
of  insane  criminals,  see  Statutes,  309. 

See  also  infra,  242,  262. 

232.  Authorizing  the  commitment  to  pris- 
on of  persons  acquitted  of  crime  on  the 
groimd  of  insanity,  when  their  going  at 
large  shall  be  considered  by  the  court  mani- 
festly dangerous  to  the  peace  and  safety  of 
the  community,  is  not  against  public  poli- 
cy. Stale  ex  rel.  Thompson  v.  Snell,  9:  1191, 
89  Pac.  931,  46  Wash.  327. 

233.  One  acquitted  of  murder  because  of 
insanity  is  manifestly  dangerous  within  the 
meaning  of  a  statute  authorizing  the  com- 
mitment of  such  persons  to  prison.  State 
Digest   1-52  Ii.R.A.(N.S.) 


ex  rel.  Thompson  v.  Snell,  9:  1191,  89  Pac. 
931,  46  Wash.  327. 

234.  A  state  hospital  for  the  insane  is  in- 
cluded within  the  meaning  of  a  statute  au- 
thorizing the  commitment  to  prison  of  one 
acquitted  of  murder  on  the  ground  of  in- 
sanity. State  ex  rel.  Thompson  v.  Snell, 
9:  1 191,  89  Pac.  931,  46  Wash.  327. 

235.  A  statute  requiring  an  examination 
of  persons  alleged  to  be  insane  does  not  ap- 
ply to  those  acquitted  of  crime  on  the 
ground  of  insanity,  as  to  whom  another  stat- 
ute provides  that  the  court  may  order  theia 
to  be  committed  to  prison.  State  ex  rel. 
Thompson  v.  Snell,  9:  1191,  89  Pac.  931,  46 
Wash.  327. 

236.  Under  a  statute  providing  that,  if,, 
in  the  opinion  of  the  court,  the  release  of 
a  person  acquitted  of  crime  because  of  in- 
sanity would  be  dangerous  to  the  peace  and 
safety  of  the  community,  it  may  order  him 
committed  to  the  hospital  for  treatment,  he 
is  entitled  to  his  discharge  upon  his  recov- 
ery in  fact  and  in  the  opinion  of  the  super- 
intendent of  the  hospital.  Northfoss  v. 
Welch,  36:  578,  133  N.  W.  82,  116  Minn.  62. 
Necessity   of  formal   commitment. 

237.  A  commitment  is  not,  although  the 
statute  directs  its  preparation,  and  states 
it  shall  be  sufficient  authority  for  the  execu- 
tion of  the  sentence,  necessary  to  render 
legal  the  custody  of  one  who  has  been  regu- 
larly sentenced  to  imprisonment  for  crime, 
and  he  may  therefore  be  punished  for  at- 
tempting to  escape  from  such  custody,  al- 
though no  commitment  is  in  existence. 
State  V.  Hatfield,  38:  609,  118  Pac.  893,  6& 
Wash.  9.  ( Annotated  > 

b.  Cruel  and  umisttal  punishments 

(See  also   same   heading  in  Digest  L.R.A. 
1-10.) 

Prejudicial   error   in   sentence,   see  Appeial 
AND  Error,  1552. 

238.  The  fact  that  a  statute  authorizes  the 
disbarment  of  an  attorney  for  and  on  account 
of  his  conviction  of  a  felony  or  misdemeanor 
involving  moral  turpitude  does  not  amount 
to  a  violation  of  any  of  his  constitutional 
rights  prohibiting  the  infliction  of  cruel  and 
unusual  punishment,  nor  is  it  an  additional 
punishment  to  that  inflicted  by  the  judg- 
ment of  conviction.  Re  Henry,  21:  207, 
99  Pac.  1054,  15  Idaho,  755.         (Annotated) 

239.  That  a  licensee,  upon  conviction  of 
a  violation  of  a  statute  making  it  unlawful 
for  a  licensed  saloon  keeper  to  traffic  in 
intoxicating  liquor  after  and  before  certain 
hours,  is  subjected  thereby  to  a  fine  and 
forfeiture  of  the  license,  does  not  invalidate 
the  statute,  as  inflicting  cruel  and  unusual 
punishment.  Dinuzzo  v.  State,  29:  417,  123 
N.  W.  309,  85  Neb.  351. 

240.  A  statute  fixing  the  punishment  for 
opening  on  Sunday  any  room  except  a  drug 
store  where  intoxicating  liquors  are  sold  or 
kept  for  sale,  at  a  fine  of  from  $50  to  $250, 
imprisonment  for  six  months,  revocation  of 


814 


CRIMINAL  LAW,  IV.  c. 


the  license,  and  the  closing  of  the  business 
for  one  year,  does  not  violate  the  constitu- 
tional injunction  against  cruel  or  unusual 
punishment,  or  the  infliction  of  penalties 
disproportionate  to  the  offense.  State  v. 
Woodward,  30:  1004,  69  S.  E.  385,  68  W. 
Va.    66,  (Annotated) 

241.  The  penalties  prescribed  by  Kan, 
Laws  1903,  chap,  487,  p.  735,  limiting  the 
charges  that  may  be  made  for  the  use  of 
stockyards,  and  imposing  a  fine  of  $100  for 
the  first  conviction;  of  not  more  than  $200 
for  the  second  conviction ;  of  not  more  than 
$500  and  six  months'  imprisonment  for  the 
third  conviction;  and  of  stich  imprisonment 
and  a  fine  of  not  less  than  $1,000  for  each 
subsequent  offense, — do  not  constitute  cruel 
and  unusual  punishment  in  violation  of 
the  state  Constitution.  Ratcliff  v.  Wichita 
Union  Stockyards  Co.  6:  834,  86  Pac.  150, 
74  Kan.  1. 

Imprisonment  of  insane  criminals. 
'  242.  No  cruel  punishment  is  inflicted  by 
committing  one  who  has  been  acquitted  of 
the  crime  of  murder  on  the  ground  of  in- 
sanity to  prison,  where  it  appears  to  the 
court  that  his  discharge  from  custody  will 
be  manifestly  dangerous  to  the  peace  ■  nd 
safety  of  the  community.  Ex  parte  Brown, 
i:  540,  81  Pac.  552,  39  Wash,  160. 
1  ( Annotated ) 

Sterilization  of  criminals. 

243.  Sterilization  by  means  of  vasectomy 
which  can  be  performed,  without  pain  or 
danger,  in  a  few  moments,  is  not  a  cruel 
punishment  so  to  render  it  unconstitutional 
when  applied  to  a  person  convicted  of 
statutory  rape.  State  v.  Feilen,  41:418, 
126  Pac,  75,  70  Wash,  65.  (Annotated) 
Imprisonment  at  hard  labor. 

244.  A  statute  relating  to  desertion  and 
nonsupport  of  a  wife  by  her  husband,  which 
provides  a  penalty  of  hard  labor  in  a  peni- 
tentiary or  reformatory  for  not  exceeding 
two  years  upon  conviction,  is  not  void  as 
containing  a  punishment  that  is  unusual. 
State  V.  Gillmore,  47:  217,  129  Pac,  1123, 
88  Kan,  835, 

c.  Extent  of  punishment  generally ;  ex- 
cessive fines. 

',1:.  <|     li.ii-r 

(See  also  same  heading  in  Digest  LJt.A. 
1-70.) 

Right  to  consider  on  appeal  question  wheth- 
er convict  was  given  too  light  a  sen- 
tence, see  Appeax  and  Error,  421. 

Reducing  or  increasing  punishment  on  ap- 
peal, see  Appeal  and  Error,  1600-1603, 

Change  in  punishment  as  ew  post  facto,  see 
Constitutional  Law,  38-40, 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  337-340. 

In  contempt  proceedings,  see  Contempt,  V, 

Review  of,  on  habeas  corpus,  see  Habeas 
Corpus,  41-47, 

See  also  infra,  291, 

Digest  1-52  L.R.A.(N.S.) 


245.  A  statute  depriving  a  life  insurance 
agent  of  tiie  right  to  prosecute  that  busi- 
ness if  he  gives  special  rates  to  applicants 
is  not  invalid  as  imposing  too  severe  a 
penalty.  People  v,  Hartford  L,  Ins.  Co, 
37:  778,  96  N.  E.  1049,  2.52  111.  398. 

246.  Sections  5168  and  5169,  Minn.  Rev. 
Laws  1905,  the  former  of  which  provides 
that  every  person  violating  the  statute  shall 
be  punished  by  fine  or  imprisonment,  and 
the  latter  of  which  provides  that  every  do- 
mestic corporation  violating  the  act  shall, 
"in  addition  to  the  penalties  imposed  upon 
the  members  thereof"  by  the  former  seo- 
tion,  forfeit  its  charter,  rights,  and  fran- 
chises, do  not  render  a  domestic  corpora- 
tion which  has  violated  the  statute  subject 
to  the  penalty  imposed  in  the  former  sec- 
tion, and  also  to  the  penalty  of  forfeiture 
as  provided  in  the  latter,  but  only  to  a 
forfeiture  of  its  charter.  State  v,  Minneap- 
olis Milk  Co,  51:244,  144  N,  W.  417,  124 
Minn,  34. 

247.  The  board  of  pardons  is  a  branch  of 
the  executive  department  of  the  state  gov- 
ernment, and  its  powers  and  prerogatives, 
as  such,  are  those  of  granting  clemency  to 
convicted  prisoners;  and  it  has  no  power  to 
increase  or  extend  penalties  or  punishment 
pronounced  by  the  sentence  of  a  court.  Ex 
parte  Prout,  5:  1064,  86  Pac.  275,  12  Idaho, 
494. 

248.  The  governor  of  a  state  is  without 
lawful  right  to  set  aside  and  nullify  the 
law  inflicting  the  death  penalty  for  crime 
in  all  cases,  upon  the  ground  that  he  is 
opposed  to  capital  punishment.  Henry  v. 
State,  52:  113,  136  Pac,  982,  10  Okla.  Crim, 
Rep.  369. 

Excessive  fines. 

249.  Requiring  one  who  has  embezzled 
over  $500,000  of  state  funds  to  pay  a  fine 
equal  to  the  amount  of  the  embezzlement,  or 
suffer  lifa  imprisonment,  is  cruel  and  un- 
usual punishment,  within  the  prohibition 
of  the  Constitution,  both  as  to  the  term  of 
imprisonment  and  as  to  the  fine,  where  ac- 
cused has  not  the  power  to  pay  it  present- 
ly, or  secure  the  necessary  funds  by  a  life- 
time of  effort.  State  v,  Ross,  42:  601,  104 
Pac,  596,  106  Pac.  1022,  55  Or.  450. 
Validity    of    legal    part    of    excessive 

sentence. 
Reversal  of,  conviction  where  part  of  sen- 
tence is  illegal,  see  Appkal  and  Error, 
1552. 

250.  A  prisoner  under  sentence  for  a  long- 
er term  than  the  court  had  jurisdiction  to 
impose  cannot  be  relieved  from  custody  un- 
til the  expiration  of  the  time  which  was 
within  the  court's  jurisdiction.  Harris  v. 
Lang,  7:  124,  27  App.  D.  C.  84. 

251.  The  imposition  of  cumulative  sen- 
tences in  a  criminal  action,  the  aggregate  of 
which  exceeds  the  jurisdiction  of  the  court 
to  impose,  does  not  render  the  entire  sen- 
tence void,  but  it  will  be  valid  for  the  term 
which  the  court  has  jurisdiction  to  impose. 
Harris  v.  Lang,  7:  124,  27  App.  D.  C.  84. 

(Annotated) 


CRIMINAL  LAW,  IV.  d. 


815 


d.  Time   of  imprisonment;   cumulative 
and  indeterminate  sentences. 

(See   also   same   heading   in  Digest  LJt.A. 
1-10.)  ;..M-, ,:,.,. 

Equal   protection   and  privileges  as  to,  see 

CoxsTiTUTiONAL  Law,  338,  339. 
Habeas  corpus  to  secure  release  because  of 

excessive  sentence,  see  Habeas  Cobpus, 

41-47. 
Construction  of  statute  as  to,  see  Statutes, 

231. 
See  also  infra,  310. 

252.  A  single  sentence  for  a  term  in  excess 
of  the  period  specified  by  statute  for  a 
single  offense,  upon  a  conviction  of  separate 
crimes  charged  in  several  counts  of  the  in- 
dictment, is  void  as  to  such  excess,  although 
it  is  for  a  less  term  than  the  court  might 
have  imposed  in  the  form  of  cumulative  sen- 
tences. United  States  v.  Peeke,  12:  314,  153 
Fed.  166,  82  C.  C.  A.  166. 

253.  A  convicted  defendant  who  is  at  lib- 
erty and  has  not  served  his  sentence,  which 
has  not  been  stayed,  as  provided  by  law, 
may  be  arrested  as  on  escape,  and  ordered 
into  custody  on  the  unexecuted  judgment, 
although  the  term  of  sentence  has  expired. 
Ex  parte  Eldridge,  27:  625,  106  Pac.  980,  3 
Okla.   Crim.   Rep.  499. 

254.  The  right  to  require  a  convict  whose 
sentence  was  illegally  suspended  by  the 
court,  to  serve  his  full  term  of  imprison- 
ment, is  not  affected  by  the  fact  that,  since 
suspension  took  effect,  the  legislature  short- 
ened the  term  for  which  persons  convicted 
of  the  offense  involved  could  be  imprisoned, 
to  a  period  less  than  that  imposed  by  the 
original  sentence.  State  v.  Abbott,  33:  112, 
70  S.  E.  6,  87  S.  C.  466. 

'When  time  begins  to  rnn. 

255.  Under  a  statute  which  provides  that 
"in  all  cases  the  court  shall  award  the  sen- 
tence and  fix  the  punishment  or  penalty 
prescribed  by  law,"  the  power  of  the  court 
extends  to  fixing  the  kind  and  amount  or  du- 
ration of  the  punishment,  rather  than  the 
time  when  it  shall  be  executed,  which  is 
not  an  essential  part  of  the  sentence;  and 
expiration  of  the  time  fixed  by  the  order 
of  the  court  for  the  execution  of  a  sentence, 
without  imprisonment,  is  in  no  sense  an 
execution  of  the  sentence.  State  v.  Home, 
7:  719,  42  So.  388,  52  Fla.  125. 

256.  A  prisoner  who  has  been  paroled  by 
the  board  of  pardons,  and  thereafter  re- 
arrested and  returned  to  the  penitentiary, 
is  entitled  to  his  discharge  at  the  expiration 
of  the  period  of  time  for  which  he  was  sen- 
tenced by  the  court;  and  he  cannot  be  law- 
fully detained  under  such  sentence  for  the 
purpose  of  serving  an  additional  term  equal- 
ing the  time  he  was  out  on  parol.  Ex 
parte  Prout,  5:  1064,  86  Pac.  275,  12  Idaho, 
494. 

257.  A  delay  after  expiration  of  a  i^>eriod 
allowed  for  the  perfecting  of  an  appeal  from 
a  sentence  of  imprisonment,  during  which 
the  convict  is  allowed  his  liberty,  in  com- 
pelling him  to  begin  service  of  the  sentence. 
Digest  1-52  L.R.A.CN.S.) 


does  not  operate  to  reduce  the  term  of  im- 
prisonment, as  such  a  sentence,  unless  re- 
mitted by  death  or  some  legal  autliority, 
can  be  satisfied  only  by  the  actual  serving 
of  the  term  of  imprisonment  imposed,  the 
expiration  of  time  without  imprisonment  be- 
ing in  no  sense  an  execution  thereof.  Ex 
parte  Eldridge,  27:  625,  106  Pac.  980,  3 
Okla.  Crim.  Rep.  499. 
Cnmnlative  sentence. 
See  also  supra,  251. 

258.  One  sentenced  to  separate  terms  of 
imprisonment  under  three  counts  of  an  in- 
dictment is  not  entitled  to  discharge  upon 
expiration  of  the  first  term,  upon  the  sen- 
tence under  the  second  count  proving  errone- 
ous; but  the  sentence  under  the  third  count 
will  begin  immediately.  United  States  v. 
Carpenter,  9:  1043,  151  Fed.  214,  81  C,  C.  A. 
194. 

259.  A  sentence  of  fine,  in  default  of  pay- 
ment of  which  there  shall  be  imprisonment 
for  a  certain  time,  imposed  upon  conviction 
for  assault,  and  one  subsequently  imposed 
upon  the  same  defendant  of  imprisonment 
for  another  assault  upon  a  different  person, 
to  which  he  pleaded  guilty  at  the  time  of 
his  former  conviction,  which  term  is  to  be- 
gin at  the  expiration  of  the  former  one,  are 
not  cumulative  within  the  meaning  of  a 
statute  limiting  the  jurisdiction  of  the  court 
as  to  the  term  for  which  it  may  impose  im- 
prisonment, and  declaring  that  cumulative 
sentences  shall  be  regarded  as  one.  Harris 
V.  Lang,  7:  124,  27  App.  D.  C.  84. 

(Annotated) 

260.  Where  a  person  who  has  been  con- 
victed and  sentenced  to  the  penitentiary  for 
one  felony  appeals  from  the  judgment,  and, 
while  enjoying  his  liberty  under  a  bond 
given  to  stay  the  execution  thereof,  com- 
mits a  second  felony,  for  which  he  is  con- 
victed and  sentenced  to  a  term  to  begin 
upon  the  expiration  of  the  former  term, 
such  second  sentence  is  valid.  State  v. 
Finch,  20:  273,  89  Pac.  922,  75  Kan.  582. 
Indeterminate  sentences;  deductions. 
Delegation  of  power  to  fix  credits  for  good 

behavior,  see  Constitutional  Law,  97. 

Review  of,  on  habeas  corpus,  see  Habeas 
Corpus,  42. 

Construction  of  statute  as  to,  see  Statutes, 
231. 

Retrospective  effect  of  indeterminate  sen- 
tence law,  see  Statutes,  307,  308. 

261.  No  constitutional  right  of  an  accused 
is  violated  by  a  statute  permitting  an  in- 
determinate sentence,  where  the  maximum 
term  is  provided  by  statute,  although  au- 
thority to  shorten  it  rests  with  a  com- 
mission. State  V.  Duff,  24:  625,  122  N.  W. 
829,  144  Iowa,  142. 

262.  The  committal  of  a  person  acquitted 
of  murder  on  the  ground  of  insanity  to 
prison  until  the  further  order  of  the  court 
is  not  void  for  uncerl  .inty.  Ex  parte 
Brown,    1:540,   81    Pac.   552,  39   Wash.    160. 

(Annotated) 

263.  The  courts  will  not  recogiiize  a  de- 
duction from  the  sentence  of  a  criminal  of 
time  for  good  behavior,  which  has  been  al- 
lowed under  authority  of  an  unconstitution- 


816 


CRIMINAL  LAW,  IV.  e-g. 


al   statute.      Fite   v.    State   ex   rel.    Snider, 
i:  520,  88  S.  W.  941,  114  Tenn.  646. 

( Annotated ) 

264.  A  law  allowing  specified  deductions 
from  terms  of  imprisonment  for  good  be- 
havior is  not  an  unconstitutional  infringe- 
ment of  the  prerogative  of  the  governor 
to  pardon,  as  it  does  not  restrict  or  inter- 
fere with  such  power  in  any  way,  but  sim- 
ply fixes  the  term  of  imprisonment  in  cer- 
tain cases  and  upon  certain  conditions, 
thus  entering  into  and  becoming  a  part  of 
the  judgment  and  sentence  of  the  court. 
Re  Ridley,  26:  no,  106  Pac.  549,  3  Okla. 
Crim.  Rep.  350. 

c.  Place  of  imprisonment. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Constitutionality  of  statute  authorizing 
prison  board  to  transfer  prisoners  from 
reformatory  to  state  prison,  and  vice 
versa,  see  Constitutional  Law,  139. 

Habeas  corpus  to  review  question  of  pro- 
priety of  place  of  confinement,  see  Ha- 
beas'Corpus,  43,  47. 

/.  Punishment  of  second  offenses  and 
hahitual  criminals. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Ex  post  facto  law  as  to,  see  Constitu- 
tional Law,  38. 

Judicial  notice  of  prior  conviction,  see  Evi- 
dence, 8. 

Necessity  of  proving  that  judgment  of  con- 
viction in  former  prosecution  had  not 
been  reversed,  see  Evidence,  95. 

See  also  supra,  183,  260. 

265.  One  is  not  subject  to  the  penalty  im- 
posed by  statute  for  a  second  offense,  for 
an  act  committed  after  a  verdict  had  been 
returned  against  him  for  the  first  offense, 
but  before  sentence  thereon.  Com.  v.  Mc- 
Dermott,  24:  431,  73  Atl.  427,  224  Pa.  363. 

(Annotated) 

266.  In  the  absence  of  some  statute  regu- 
lating the  procedure,  to  authorize  a  court 
to  impose  the  increased  punishment  pro- 
vided for  by  a  statute  relating  to  second 
offenders,  the  fact  of  the  prior  conviction 
must  be  set  forth  in  the  indictment,  estab- 
lished by  proper  evidence,  and  passed  upon 
by  the  jury.  State  v.  Findling,  49:  449, 
144  N.  W.  142,  123  Minn.  413. 

267.  To  warrant  the  application  of  a  stat- 
ute authorizing  additional  punishment  of 
one  convicted  of  crime  upon  proof  of  former 
convictions,  the  identity  of  accused  and  the 
one  against  whom  the  former  judgments 
were  entered  must  be  established  by  affirma- 
tive evidence;  mere  proof  of  identity  of 
names  not  being  sufficient.  State  v.  Smith. 
4:  539,  106  N.  W.  187,  129  Iowa,  709. 

(Annotated) 

268.  Failure  of  proof  of  identity  of  ac- 
cused and  those  convicted  in  former  prose- 
Digest  1-52  Ii.R.A.(N.S.) 


cutions  prevents  the  court  from  applying  the 
statute  authorizing  additional  punishment 
in  case  of  successive  convictions,  but  in  ease 
of  a  finding  of  guilt  it  can  impose  only  the 
punishment  provided  for  the  offense  for 
which  accused  is  on  trial.  State  v.  Smith, 
4:  539,  106  N.  VV.  187,  129  Iowa,  701). 

269.  A  statute  providing  for  the  filing  of 
an  information  in  the  circuit  court  of  the 
county  in  which  the  penitentiary  is  situat- 
ed, of  the  fact  that  one  who  had  been  sen- 
tenced to  confinement  in  such  penitentiary 
had  before  been  sentenced  to  a  like  punish- 
ment, whether  or  not  it  was  so  alleged  in 
the  indictment  on  which  he  was  convicted, 
and  directing  that,  upon  such  information, 
a  sentence  of  life  imprisonment  be  imposed 
upon  a  convict  who  had  been  twice  before 
sentenced  to  confinement  in  a  penitentiary, 
is  constitutional  and  valid.  State  v.  Gra- 
ham, 40:  924,  69  S.  E.  1010,  68  W.  Va.  248. 

g.     Suspension    or    stay    of    sentence; 
time  of  imposing. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  to  jury  trial  on  issue  of  violation  of 
condition  of  suspended  sentence,  see 
JUEY,  27. 

See  also  supra,  254. 

270.  A  judgment  suspending  sentence  up- 
on condition  of  payment  of  costs  and  giv- 
ing bonds  to  appear  from  term  to  term 
and  show  that  accused  has  demeaned  him- 
self as  a  good  and  law-abiding  citizen  is 
not  void  for  uncertainty.  State  v.  Everett, 
47:  848,  79  S.  E.  274,  164  N.  C.  399. 

271.  A  suspension  of  sentence  upon  pay- 
ment of  costs  does  not  render  such  pay- 
ment a  satisfaction  of  the  judgment,  so  that 
the  court  cannot  afterward  proceed  with 
the  sentence.  State  v.  Everett,  47:  848,  79 
S.  E.  274,  164  N.  C.  399. 

272.  Imposing  a  sentence  which  was  sus- 
pended during  good  behavior,  upon  viola- 
tion of  law  by  the  accused,  is  not  void  as  a 
punishment  for  something  occurring  after 
the  original  conviction.  State  v.  Everett, 
47:  848,  79  S.  E.  274,  164  N.  C.  399. 
Pomrer  to  suspend  sentence  on  execu- 
tion thereof. 

Review  of  discretion  as  to,  see  Appeal  and 

Ebkor,  667. 
Estoppel  of  convict  to  assert  invalidity  of 

suspension   of   sentence,   see   Estoppel, 

116. 

273.  Whenever  a  verdict  or  plea  of  guil- 
ty has  become  final,  the  court  is  under  an 
absolute  duty  to  pronounce-  sentence,  and 
has  no  discretion  to  suspend  it  under  an 
agreement  that  it  may  never  be  pronounced 
at  all.  State  ex  rel.  Dawson  v.  Sapp,  42: 
24^,  125  Pac.  78,  87  Kan.  740. 

274.  The  power  of  suspending  sentence  be- 
longs of  common  right  to  every  tribunal 
invested  with  authority  to  award  execu- 
tion in  a  criminal  case.  St-^tc  v.  Everett, 
47:  848,  79  S.  E.  274  164  N.  C.  399. 

275.  Tliere  is  no  power  to  make  the  serv- 


CRIMINAL  LAW,  IV.  h,  1. 


817 


ing  of  sentence  for  crime  depend  upon  the 
subsequent  conduct  of  the  convict.  Re  Pe- 
terson, 33:  1067,  113  Pac.  729,  19  Idaho,  433. 

276.  A  court  has  no  power  to  suspend  a 
sentence  of  imprisonment  during  the  good 
behavior  of  the  convict.  State  v.  Abbott, 
33:112,  70  S.  E.  6,  87  S,  C.  466. 

( Annotated ) 

277.  A  court  has  no  inherent  povper  to 
suspend  the  execution  of  a  sentence  pro- 
nounced upon  one  convicted  of  crime  for 
the  purpose  of  inducing  good  behavior  on 
his  part.  Fuller  v.  State,  39:  242,  57  So. 
6,  806,  100  Miss.  811.  (Annotated) 

278.  A  court  has  no  power  to  suspend  exe- 
cution of  a  sentence  which  has  been  im- 
posed in  a  criminal  case  as  a  reformatory 
measure,  to  secure  future  good  behavior  on 
the  part  of  the  accused.  Spencer  v.  State, 
38:  680,  140  S.  W.  597,  125  Tenn.  64. 

279.  The  fact  that  the  Constitution 
places  in  the  governor  power  to  grant  re- 
prieves and  pardons  "after  conviction"  does 
not  limit  his  authority  to  cases  in  which 
the  court  has  pronounced  judgment,  so  as 
to  authorize  conferring  upon  the  court  prior 
to  that  time  jurisdiction  to  remit  punish- 
ment by  a  suspension  of  sentence.  Snod- 
grass  V.  State,  41:  1144,  150  S.  W.  162,  — 
Tex.  Crim.  Rep.  — . 

280.  Power  to  suspend  sentence  on  per- 
sons convicted  for  crime,  during  good  be- 
havior, and  ultimately  to  annul  the  judg- 
ment of  conviction,  cannot  be  conferred 
upon  courts  where  the  Constitution  requires 
the  passing  of  laws  depriving  persons  cpn- 
victed  of  such  crimes  of  certain  civil  rights. 
Snodgrass  v.  State,  41:  1144,  150  S.  W. 
162,  —  Tex.  Crim.  Rep.  — . 

281.  Under  a  Constitution  conferring 
upon  the  governor  power  to  grant  reprieves 
and  pardons,  the  legislature  cannot  confer 
upon  the  court  power  to  remit  the  punish- 
ment upon  a  verdict  finding  one  guilty  of 
crime  and  imposing  imprisonment  upon 
him,  by  suspending  its  execution  during 
good  behavior  and  finally  annulling  the  con- 
viction. Snodgrass  v.  State,  41:  X144,  150 
S.  W.  162,  —  Tex.  Crim.  Rep.  — . 

282.  A  constitutional  provision  that  no 
power  of  suspending  laws  shall  be  exercised 
except  by  the  legislature  is  violated  by  a 
statute  permitting  the  court  to  release  from 
custody  one  convicted  of  abandoning  his 
wife,  upon  his  entering  into  a  recognizance 
to  pay  her  a  weekly  sum.  Ex  parte 
Smythe,  23:  854,  120  S.  W.  200,  56  Tex. 
Crim.  Rep.  375.  (Annotated) 
Loss  of  jurisdiction  to  impose  sen- 
tence, or  enforce  execution  there- 
of, by  suspension. 

Habeas  corpus  to  release  person  recommit- 
ted after  suspension  of  sentence,  see 
Habeas  Corpus,  21. 

283.  A  court  which  has  imposed  a  judg- 
ment of  imprisonment  on  plea  of  guilty  or 
conviction,  which  is  not  stayed  as  provided 
by  law,  should  forthwith  commit  the  de- 
fendant to  the  proper  officer  for  incarcera- 
tion; but,  where  this  is  not  done,  and  an 
order  is  made  under  which  the  defendant  is 
discharged  from  custody,  the  court  has  no 
Digest  1-52  KR.A.(N.S.) 


power  or  jurisdiction  after  the  lapse  of  the 
time  involved  in  tiie  sentence,  and  after 
the  term,  to  issue  commitment  on  such  judg- 
ment. Ex  parte  Clendenning,  19:  1041,  97 
Pac.  650,  1  Okla.  Crim.  Rep.  227. 

( Annotated ) 

284.  Where  an  attempt  to  stay  an  execu- 
tion of  a  criminal  sentence  is  void,  the 
court  may,  even  after  the  expiration  of  the 
term,  cause  a  capias  to  issue  to  take  accused 
into  custody,  that  the  execution  of  his 
sentence  may  proceed.  Spencer  v.  State, 
38:  680,  140  S.  W.  597,  125  Tenn.  64. 

285.  Where,  after  a  verdict  or  plea  of  guil- 
ty, the  defendant  is  permitted  to  go  at 
large  under  an  arrangement  that  he  shall 
escape  punishment  unless  the  court  shall  in 
the  future  determine  to  impose  a  sentence, 
expiration  of  the  term,  and  no  valid  sen- 
tence can  thereafter  be  pronounced ;  and 
this  rule  applies  notwithstanding  the  sen- 
tence purports  to  be  suspended  until  a  cer- 
tain date,  for  the  purpose  of  retaining  con- 
trol of  the  defendant,  who  is  ordered  to 
appear  at  that  time  and  show  that  he  has 
not  violated  the  law  in  the  interval.  State 
ex  rel.  Dawson  v.  Sapp,  42:  249,  125  Pac. 
78,  87  Kan.  740. 

286.  Where,  upon  a  plea  of  guilty,  ac- 
cused is  sentenced  to  a  terra  of  imprison- 
ment and  payment  of  a  fine,  or  alterna- 
tive imprisonment  for  a  further  term  in 
case  of  its  nonpayment,  with  a  proviso  that 
in  case  it  is  paid,  the  sentence  of  imprison- 
ment shall  be  suspended  until  further  or- 
der, if  the  fine  is  paid  and  the  accused 
released  without  bail,  the  court  has  no 
power  to  compel  him  afterwards  to  serve 
out  his  term.  Re  Peterson,  33:  1067,  113 
Pac.  729,  19  Idaho,  433. 

287.  The  invalidity  of  an  attempt  by  a 
court  to  suspend  a  sentence  of  imprison- 
ment during  good  behavior  of  the  convict 
does  not  affect  the  validity  of  the  sentence, 
and  it  may  be  enforced  even  though  the 
time  covered  by  the  sentence  has  expired. 
State  V.  Abbott,  33:  112,  70  S.  E.  6,  87  S. 
C.   466. 

Stay. 

Effect  of  repeal  or  amendment  of  statute  to 
arrest  execution  of  sentence,  see  Stat- 
utes, 307. 

288.  A  court  which  has  sentenced  a  con- 
vict to  death  may  stay  the  execuiion  to  in- 
quire as  to  his  sanity,  and,  if  insane,  may 
continue  the  stay  until  his  recovery.  Ex 
parte  State  ex  rel.  Wilson,  10:  1129,  43  So. 
490,  150  Ala.  489. 

h.  Parole;  reprieve;  pardon. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Presumption  as  to  pardon,  see  Appeal  and 

Error,  437. 
Sufficiency  of  identification  of  person  named 

in  pardon,  see  Evidence,  2217. 


^19 


CRIMINAL  LAW,  IV.  h,  2. 


Convicted  prisoner  under  parole  who  goes 
into  another  state  as  a  fugitive  from 
justice,  see  Extradition,  10. 

Legality  of  revocation  of  parole  in  foreign 
state,  see  Exteadition,  12. 

Commutation  of  sentence  as  atl'octing  credi- 
bility of  convict  as  witness,  see  Wit- 
nesses, 154. 

See  also  supra,  152,  247,  264. 

280.  A  "parole"  in  criminal  law  is  the 
release  of  a  convict  from  imprisonment  up- 
on certain  conditions  to  be  observed  by 
him,  and  a  suspension  of  his  sentence  dur- 
ing his  liberty  thus  granted.  Re  Ridley, 
26:110,  106  Pac.  549,  3  Okla.  Grim.  Rep, 
350. 

290.  A  prisoner  who  is  paroled  without 
statutory  authority  cannot,  upon  violation 
of  his  parole,  be  required  to  remain  in  pris- 
on beyond  the  time  when  the  original  sen- 
tence expired.  Scott  v.  Chichester,  16:  304, 
60  S.  E.  95,  107  Va.  933.  (Annotated) 
Validity  of  pardon.. 

Review  of,  on  habeas  corpus,  see  Habeas 
Corpus,  17. 

291.  A  pardon  granted  by  the  lieutenant 
governor  of  a  state  during  the  temporary 
absence  of  the  governor  is  valid  under  a 
constitutional  provision  conferring  upon 
tlie  lieutenant  governor  the  powers  and 
duties  of  the  office  of  governor  upon  the 
removal  from  the  state  of  the  governor. 
Re  Crump,  47:  1036,  135  Pac.  428,  10  Okla. 
Crim.  Rep.  133.  (Annotated) 
Governor's  poixrer  as  to  pardon. 

See  also  supra,  264,  279. 

292.  Conferring  power  on  a  commission  to 
permit  prisoners  confined  in  the  peniten- 
tiary to  go  on  parole  outside  of  the  build- 
ings does  not  empower  it  to  reprieve,  par- 
don, or  commute  sentences,  so  as  to  consti- 
tute a  violatiou  of  the  constitutional  par- 
doning power  of  the  governor.  State  v. 
Duff,  24:  625,  122  N.  W.  829,  144  Iowa,  142. 

293.  The  governor  of  the  state  has  no  au- 
thority to  order  a  sheriff  to  release  a  pris 
oner  committed  to  his  custody  by  judgment 
of   a    court.     Re   Campion,    11:  865,    112   N. 
W.  585,  79  Neb.  364. 

294.  The  governor  has  no  power  to  pardon 
a  prisoner  found  guilty  of  bastardy  and  ad- 
judged to  be  the  reputed  father  of  an  il- 
legitimate child,  since  he  has  not  been  con- 
victed of  an  offense  within  the  meaning  of 
Neb.  Const,  art.  5,  §  13,  empowering  the 
chief  executive  of  the  state  to  grant  pardons 
after  convictions  for  all  offenses  except  trea- 
son and  cases  of  impeachment.  Re  Campion, 
11:  865,  112  N.  W.  585,  79  Neb.  364. 

295.  The  constitutional  pardoning  power 
of  the  governor  does  not  prevent  the  legis- 
lature from  conferring  upon  municipal  au- 
thorities the  power  to  remit  penalties  for 
violation  of  municipal  ordinances.  Allen  v. 
McGuire,  38 1,196,  5/  So.  217,  100  Miss.  781. 

(Annotated) 

296.  A  statute  creating  a  state  board  of 
pardons,  defining  its  duties,  and  restrict- 
ing the  governor  in  the  exercise  of  the 
pardoning  power,  is  unconstitutional  and 
void,  when  the  pardoning  power  is  by  the 
Digest  1-52  L.R.A.(N.S.) 


Constitution  vested  exclusively  in  the  chief 
executive  of  the  state,  subject  to  such  reg- 
ulations as  may  be  prescribed  by  law,  aa 
such  provision  merely  vests  the  legislature 
with  power  to  provide  regulations  relative 
to  the  manner  of  applying  for  pardons, 
and  not  with  power  to  restrict  the  power 
of  the  governor  to  grant  them.  Re  Ridley, 
26:  no,  106  Pac.  549,  3  Okla.  Crim.  Rep. 
350. 

££Peot  of  pardon. 

Effect   of   pardon   of   attorney   convicted   of 
forgery  to  prevent  disbarment,  see  At- 
torneys, 29. 
Effect   of  pardon   on   right  to  divorce,  see 

Divorce  and  Separation. 
Effect  of  pardon  on  competency  as  witness, 
see  Witnesses,  18. 

297.  Pardoning  the  offender,  and  not  the 
offense  for  which  the  pardon  is  granted, 
does  not  destroy  its  eflect.  Thompson  v. 
United  States,  47:  206,  202  Fed.  401,  120 
C.  C.  A.  575. 

298.  A  pardon  is  an  act  of  grace  and 
mercy,  bestowed  by  the  state  tli  rough  its 
chief  executive,  upon  oifenders  against  its 
laws,  after  conviction;  and  a  full,  uncondi- 
tional pardon  reaches  both  the  punishment 
prescribed  for  the  offense  and  the  guilt  of 
the  offender;  it  obliterates  in  legal  con- 
templation the  oflense  itself;  and  hence  its 
effect  is  to  make  the  offender  a  new  man. 
Re  Crump,  47:  1036,  135  Pac.  428,  10  Okla. 
Crim.  Rep.   133. 

299.  A  pardon  does  not  release  a  convict 
from  liability  to  pay  the  costs  of  prosecu- 
tion. Villines  v.  State,  43:  207,  151  S.  W. 
1023,  105  Ark.  473. 

300.  A  pardon  will  not  prevent  the  subse- 
quent enlry  of  a  nunc  pro  tunc  order  char- 
ging a  convict  with  costs  of  suit,  wliich 
should  have  been  made  a  part  of  the  judg- 
ment. Villines  v.  State,  43:  207,  151  S.  W. 
1023,  105  Ark.  471.  (Annotated) 
Recall  of  pardon. 

301.  The  governor  cannot  recall  a  pardon 
which  he  has  forwarded  to  the  sheriff  for 
delivery  to  a  prisoner,  after  the  prisoner 
has  complied  with  the  conditions  precedent 
on  which  it  was  granted.  Ex  parte  Wil- 
liams, 22:  238,  63  S.  E.  108,  149  N.  C.  436 

(Annotated) 

302.  A  full,  unconditional  pardon  granted 
by  the  lieutenant  governor  of  a  state  dur- 
ing the  absence  from  the  state  of  the  gov- 
ernor takes  effect  upon  delivery  to  one  who 
is  acting  for  the  subject  of  the  pardon, 
and  cannot  thereafter  be  revoked  by  the 
governor  upon  his  return  to  the  state.  Re 
Crump,  47:  1036,  135  Pac.  428,  10  Okla. 
Crim.  Rep.  133. 

2.  Conditional. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Parole  of  husband  on  condition  that  he  sup- 
port his  abandoned  wife,  see  Husband 
AND  Wife,  214. 

See  also  supra,  256. 


CRIMINAL  LAW,  IV.  h,  2. 


819 


303.  Conditions  attached  to  a  parole  or 
pardon  by  the  board  of  pardons,  that  are 
to  extend  beyond,  or  be  performed  after,  the 
expiration  of  the  term  for  which  the  prison- 
er was  sentenced,  are  illegal,  and  cannot  be 
enforced  after  the  expiration  of  the  term 
for  which  the  prisoner  was  sentenced.  Ex 
parte  Prout,  5:  1064,  86  Pac,  275,  12  Idaho, 
494.  (Annotated) 
Right  to  grant  conditional  pardon. 

304.  The  board  of  pardons  has  power  to 
parole  prisoners  upon  such  terms  and  con- 
ditions as  it  may  see  fit,  so  long  as  those 
terms  and  conditions  are  neither  immoral 
nor  illegal.  Ex  parte  Prout,  5:  1064,  86  Pac. 
275,   12  Idaho,  494. 

305.  Under  a  constitutional  provision  that 
the  pardoning  power  "may,  upon  such  con- 
ditions and  with  such  limitations  and  re- 
strictions as  they  may  deem  proper,  .  .  . 
grant  pardon  after  conviction,  in  all  cases 
except  treason  and  impeachment,  siibject  to 
such  regulations  as  may  be  prescribed  by 
law  relative  to  the  manner  of  applying  for 
pardons,"  the  pardoning  power  may,  in 
granting  a  pardon  after  conviction,  impose 
any  condition,  limitation,  or  restriction  that 
is  not  illegal,  immoral,  or  impossible  of  per- 
formance, and  the  acceptance  of  the  pardon 
binds  the  person  accepting  it  to  all  such 
conditions,  limitations,  and  restrictions  con- 
tained therein  that  are  legal,  moral,  and 
possible  of  performance.  State  v.  Home, 
7:  719,  42  So.  388,  52  Fla.  125. 

Breach  of  condition. 

Due  process  in  revoking  parol  for  violation 
of  conditions,  see  Constitutional  Law, 
573. 

Habeas  corpus  to  secure  release  of  convict 
rearrested  for  violation  of  parole,  see 
Habeas  Cobptjs,  36. 

Right  to  jury  to  determine  whether  condi- 
tion has  been  broken,  see  Jury,  28. 

306.  A  conditional  pardon  may,  by  its 
express  terms,  provide  that,  upon  violation 
of  the  conditions,  the  offender  shall  be  liable 
to  summary  arrest  and  recommitment  for 
the  unexpired  portion  of  his  original  sen- 
tence, and  such  stipulations  upon  acceptance 
of  the  pardon  become  binding  upon  the  con- 
vict, and  authorize  his  rearrest  and  recom- 
mitment in  the  manner  and  by  or  through 
the  officials  authorized  as  stipulated  in  the 
pardon.  State  v.  Home,  7:  719,  42  So.  388. 
52  Fla.  125. 

307.  If  the  condition  of  a  pardon  upon 
which  a  convict  secures  his  release  from  im- 
prisonment is  violated,  the  pardon  becomes 
void,  and  the  convict  may  be  arrested  as 
though  no  pardon  had  been  granted,  and 
compelled  to  undergo  so  much  of  the  original 
sentence  as  he  had  not  suffered  at  the  time 
of  his  release.  State  v.  Home,  7:  719,  42 
So.  388,  52  Fla.  125. 

308.  A  conditional  pardon  by  virtue  of  1 
which  u  prisoner  accepting  its  terms  has  been  ] 
released  from  imprisonment  does  not,  upon 
his  failure  to  perform  the  conditions,  or  his 
violation  of  them,  take  effect  where  the  con- 
tingency specified  is  a  condition  precedent, 
and  it  becomes  void  where  it  is  a  condition 
Digest   1-52  Ii.R.A.(N.S.) 


subsequent.     State  v.  Home,  7:  719,  42  So. 
388,  25  Fla.  125. 

309.  A  convict  who  has  been  released  up- 
on a  conditional  pardon  cannot  be  rear- 
rested and  recommitted  upon  breach  of  tlie 
condition,  upon  the  mere  order  of  the  gover- 
nor alone,  unless  such  a  course  is  authorized 
by  a  statute  or  by  the  express  terms  of  the 
pardon;  but  he  is  entitled  to  a  hearing  before 
a  court  of  general  criminal  jurisdiction,  in 
order  that  he  may  show,  if  he  can,  that  he 
has  performed  the  conditions  of  the  pardon, 
or  that  he  has  a  legal  excuse  for  not  hav- 
ing done  so,  or  that  he  is  not  the  same  per- 
son who  was  convicted.  State  v.  Home,  7; 
719,  42  So.  388,  52  Fla.  125. 

310.  A  provision  in  a  conditional  pardon 
that,  upon  breach  of  the  condition  on  winch 
the  pardon  is  granted,  it  shall  be  the  duty 
of  the  sheriff'  of  any  county  immediately  to 
arrest  the  person  pardoned  and  return  him 
to  the  penitentiary,  to  serve  out  the  remain- 
der of  his  term,  refers  to  the  length  of  im- 
prisonment fixed  by  the  sentence,  and  not  to 
the  particular  period  of  time  mentioned  in 
the  sentence  during  which  it  was  to  be  exe- 
cuted ;  since  the  latter  is  not  a  material  or 
effective  part  of  the  sentence.  State  v. 
Home,  7:  719,  42  So.  388,  52  Fla.  125. 

311.  A  provision  in  a  pardon,  requiring 
reimprisonment,  upon  breach  of  a  condition 
of  the  pardon,  for  the  remainder  of  the  or- 
iginal sentence  of  imprisonment,  after  the 
expiration  of  the  particular  period  of  time 
fixed  by  the  court  within  which  the  sentence 
imposed  shall  be  executed,  is  not  immoral  or 
impossible  of  performance  during  the  life  of 
the  convict;  nor  is  it  illegal,  since  the  partic- 
ular period  of  time  within  which  the  sen- 
tence is  to  be  suffered  by  the  convict  as 
specified  in  the  sentence  is  not  a  part  of 
the  legal  sentence,  except  so  far  as  it  fixes 
the  quantum  of  time  that  he  must  suffer 
such  penalty;  nor  does  it  increase  the  pun- 
ishment imposed  by  the  court  in  the  sen- 
tence; and  it  is  not  forbidden  by  law. 
State  V.  Home,  7:  719,  42  So.  388,  52  Fla. 
125. 

312.  A  prisoner  accepting  a  pardon  upon 
condition  that,  if  he  subsequently  violates 
any  law  of  the  United  States,  state,  or 
municipality,  the  pardon  may  be  revoked, 
and  the  governor  may  direct  his  return  to 
prison  to  serve  his  unexpired  term,  is  bound 
by  its  terms;  and  he  cannot  question  the 
governor's  authority  to  order  his  rearrest 
without  intervention  of  the  courts.  Ke 
Houghton,  9:  737,  89  Pac.  801,  49  Or.  232. 

313.  The  expiration  of  the  term  for  which 
a  convict  was  sentenced  does  not  make  in- 
operative a  provision  in  a  conditional  par- 
don that,  if  he  is  subsequently  convicted 
of  crime,  he  shall  serve  the  unexpired  time 
in  addition  to  that  imposed  by  the  new 
sentence;  but  he  may  be  compelled  to  serve 
out  such  unexpired  term,  although  his  sub- 
sequent conviction  does  not  occur  until 
after  the  expiration  of  the  term  of  the 
original  sentence.  Re  Kelly,  20:  337,  99 
Pac.  3G8,  155  Cal.  39. 

314.  A  governor  having  exclusive  power 
to  parole  a  convict,  with  such  restrictions 


820 


CRIMINAL  LAW,  V.— CROPS. 


and  limitations  as  he  may  deem  proper, 
may,  upon  violation  of  the  parole,  direct 
the  rearrest  and  return  to  custody  of  the 
convict  to  serve  out  the  unexpired  part  of 
his  sentence  as  though  no  parole  had  been 
granted,  although  the  original  term  would 
have  expired  but  for  the  suspension  there- 
of. Re  Ridley,  26:  no,  106  Pac.  549,  3  Okla. 
Crim.  Rep.  350. 

V.  Record;  validity  of  conviction. 

(See  aha  same  heading  in  Digest  L.R.A. 
1-10.) 

Record  on  appeal,  see  Appeal  and  Ebroe, 

IV. 
See  also  supra,   156. 

315.  It  is  essential  to  the  validity  of  the 
record  in  a  criminal  case  that  it  show  that 
the  proceedings  were  had  in  a  court  regu- 
larly organized.  People  v.  Gray,  49:  1215, 
103  N.  E.  552,  261  111.  140.        (Annotated) 

316.  The  omission  from  a  judgment  en- 
tered in  a  criminal  case  of  the  offense  for 
which  the  sentence  is  imposed  may  be  sup- 
plied by  reference  to  what  appears  in  other 
parts  of  the  record.  Demolli  v.  United 
States  6:  424,  144  Fed.  363,  76  C.  C.  A.  365. 
Co-defendants;    conviction   of   one   or 

more. 

317.  The  acquittal  of  part  of  several  town 
officers  jointly  indicted  for  larceny  in  mak- 
ing false  town  orders,  and  securing  and 
appropriating  to  their  own  use  the  cash 
upon  them,  will  not  render  void  a  conviction 
of  one  who  is  shown  to  have  cashed  and 
received  the  money  upon  orders  fraudulent- 
ly issued  as  charged.  Vought  v.  State,  32: 
234,  114  N.  W.  518,  135  Wis.  6. 


CRITICISM. 

Of  book,  see  Libel  and  Slander,  21. 
Of  public  officers  or  candidates,  see  Libei; 
AND  Slandeb,  II.  d;  II.  e,  5. 


CRIMINAL  LIBEK 

See  Courts,  28;  Libbx  and  Slander,  115. 
» » » 
CRIMINAL  NUISANCE. 

Injunction  against,  see  NtnsANCES,  169-167. 


CRIMINATION  OF  SELF. 

See  Automobiles,  4;  Criminal  Law,  107- 
121,  131;  Pebjurt,  8,  10;  WITNESSES, 
II.  c. 


CRIPPLE. 


CROPPERS. 


Contributory  negligence  of  crippled  person, 

see  Cabbiebs,  550,  575. 
Digest  1-52  L.R.A.(N.S.) 


Damages  for  wrongful  expulsion  of,  see 
Damages,  153. 

Misleading  information  by  one  having  crop- 
ping contract  with  totenant,  as  to  in- 
terest of  such  tenant  to  the  other  00- 
tenant,  see  Estoppel,  166. 

Effect  of  partition  on  cropping  contract 
made  by  one  cotenant,  see  Partition, 
18. 

Question  for  jury  as  to  need  of  supplies  to 
make  crop,  see  Tbial,  216. 

Question  for  jury  as  to  whether  possession 
of  cropper  was  adverse,  see  Tbial,  617. 

1.  A  milch  cow  and  medical  supplies 
may  be  found  to  be  needed  by  one  who  has 
undertaken  to  make  a  crop  on  another's 
land,  to  enable  him  to  perform  his  contract, 
within  a  provision  permitting  the  landowner 
to  deduct  from  his»  share  of  the  crop  the 
value  of  supplies  furnished  by  him  and 
needed  to  make  the  cro^p.  Bourland  v, 
McKnight,  4:  698,  96  S.  W.  179.  79  Ark.  427. 

2.  Under  a  contract  by  which  one  un- 
dertakes to  make  a  crop  on  the  land  of  an- 
other, who  is  to  have  title  to  it  and  keep  a 
portion  for  the  use  of  land,  team,  and  tools, 
and  from  the  proceeds  of  the  remainder  de- 
duct the  amount  due  him  for  supplies  and 
necessaries  furnished  the  cropper  and  turn 
the  balance  over  to  him,  the  cropper  is  only 
an  employee,  and  has  no  title  to  any  portion 
of  the  crop  which  he  can  mortgage  as 
against  the  claim  of  the  landowner  for  the 
value  of  cattle  and  medicines  and  services 
of  a  physician  furnished  to  him.  Bourland 
v.  McKnight,  4:  698,  96  S.  W.  179,  79  Ark. 
427.  (Annotated) 

3.  One  who  has  undertaken  to  make  a 
crop  on  another's  land  for  a  share  of  it  may 
mortgage  his  interest  in  it.  Bourland  v. 
McKnight,  4:  698,  96  S.  W.  179,  79  Ark.  427. 

4.  A  cropper  forfeits  all  interest  in  the 
crop  by  voluntarily  abandoning  it  without 
reasonable  cause  or  excuse.  Salley  v.  Cox, 
46:  53,  77  S.  E.  933,  94  S.  C.  216. 

(Annotated) 


CROPS. 

Injury  to,  by  animal,  see  Animals,  27,  28; 

Trespass,  20. 
Error    in    admitting    proof    of    purchaser's 

right  to  inspect,  see  Appeal  and  Ebbob, 

1132. 
Damages  for  injury  to  or  destruction  of,  see 

Appeal   and   Error,    1549;    Damages, 

460,  461,  479-490. 
Attachment  against,  to  enforce  lien  for  rent, 

see  Attachment,  3,  4. 


CROSS— CROSSING. 


821 


Extension  of  note  for  crop  failure,  see  Bills 
AND  Notes,  56. 

Mortgage  on,  see  Chattel  Mortgage,  10. 

Oral  contract  to  superintend  making  and 
gathering  of,  see  Contracts,  235. 

Oral  reservation  of,  see  Contracts,  270- 
272;  Evidence,  940. 

Severability  of  contract  to  thresh,  see  Con- 
tracts, 353. 

County's  liability  for  loss  of,  during  quaran- 
tine, see  Counties,  3. 

Duty  to  dig  ditch  to  protect  crops  from  back 
water,  see  Damages,  19 ;  Landlord  and 
Tenant,  14. 

Breach  of  contract  to  furnish  water  to  irri- 
gate crops,  see  Damages,  122;  Land- 
lord AND  Tenant,  21. 

Passing  of,  on  conveyance  of  real  estate, 
see  Deeds,  49 ;  Vendor  and  Purchaser, 
19. 

Who  entitled  to  matured  crop  on  recovery 
in  ejectment  of  land  on  which  stand- 
ing, see  Ejectment,  30. 

Evidence  as  to  damages  to,  see  Evidence, 
1128,  1132,  1739-1742,  2321. 

Evidence  as  to  value  of,  see  Evidence,  1702. 

As  assets  of  decedent's  estate,  sec  Execu- 
tors and  Administrators,  82. 

Right  to  re-enter  for  purpose  of  cultivating, 
harvesting,  and  removing,  see  Forcible 
Entry  and  Detainer,  1 ;  Landlord  and 
Tenant,    98. 

Liability  of  health  ofl5cer  for  loss  of,  see 
Health,  18. 

Exemption  of  crops  grown  on  homestead,  see 
Homestead,  15. 

Receipt  by  landowner  of  part  of  crop  from 
one  claiming  as  tenant,  as  evidence  of 
relation  of  landlord  and  tenant,  see 
Landlord  and  Tenant,  5. 

Right  of  purchaser  of  growing  crop  from 
assignee  of  lease  as  against  execution 
creditor  of  the  tenants,  assignor  and 
assignee,  see  Landlord  and  Tenant,  88. 

Right  of  tenant  to  gather  after  expiration 
of  lease,  see  Landlord  and  Tenant, 
126. 

Landlord's  lien  on,  see  Landlord  and  Ten- 
ant, 199,  200. 

Right  to,  on  re-entry  by  landlord,  see  Land- 
lord AND  Tenant,  213-216. 

Conversion  of,  by  tenant  as  larceny,  see 
Larceny,  5. 

Levy  on  growing  crop,  see  Levy  and  Seiz- 
ure, 20-23. 

Lien  upon,  for  wages  of  farm  laborers,  see 
Liens,  10. 

When  right  of  action  for  injury  to  accrues, 
see  Limitation  of  Actions,  198,  199. 

Liability  for  injury  to,  through  negligence 
of  independent  contractor,  see  Master 
AND  Servant,  1013. 

Priority  of  lien  for  advances  over  mortgage 
on,  see  Mortgage,  44. 

Landlord's  right  of  action  for  injuries  to, 
see  Parties,  148. 

Pleading  in  action  for  breach  of  contract 
as  to,  see  Pleading,  78. 

Excuse  for  appointment  of  receiver  of,  with- 
out notice,  see  Receivers,  6. 

Replevin  for,  see  Replevin,  16. 

Digest  1-52  L.R.A.(N.S,) 


Liability   for   loss  of,   due  to  seliing   unfit 

seed,  see  Sale,  92. 
Gathering  on  Sunday,  see  Sunday,  16. 
Shading  of,  by  trees  on  boundary  line,  see 

Trees,  1. 
Conversion  by  purchaser  of  crop  upon  which 

another  has  a  lien,  see  Trover,  21. 
Injury  to,  by  overflow  of  water,  see  Waters, 

205. 
As  to  croppers,  see  Croppers. 

1.  A  testamentary  direction  as  to  the 
disposition  of  crops  growing  on  the  laud  in 
case  testator's  death  shall  occur  within  a 
specified  year  will  cease  to  have  any  effect 
at  the  expiration  of  the  year;  and  after 
that  time  the  matter  will  be  governed  by 
the  statute.  Gordon  v.  James,  1:461,  39 
So.  18,  86  Miss.  719. 

2.  A  railroad  company  that  has  cut  a 
gap  through  a  fence  inclosing  a  field  of 
growing  crops  is  liable  for  injuries  caused 
to  the  growing  crop  by  cattle  entering 
through  the  gap,  where  it  is  not  shown  that 
the  company  had  procured  a  right  of  way 
through  the  land,  nor  that  it  had  any  other 
right  to  break  and  destroy  the  fence. 
Missouri,  0.  &  G.  R.  Co.  v.  Brown,  50:1124, 
136  Pac.  1117,  41  Okla.  70. 


■♦•»■ 


CROSS. 

On  ballots,  see  Elections,  40. 
.^ ♦-*♦ 


CROSS  BILL. 


Questioning  propriety  of,  for  first  time  on 
appeal,  see  Appeal  and  Error,  762,  763. 

In  suit  to  remove  cloud  on  title,  see  Cloud 
ON  Title,  IV. 

Dismissal  of,  for  lack  of  jurisdiction,  see 
Courts,  253. 

In  general,  see  Pleading,  IV. 

Reversal  on  bill  of  review,  of  decree  found- 
ed on  matters  set  up  in,  see  Review,  3. 


CROSS  ERRORS. 


Assignment  of,  see  Appeal  and  Error,  IV. 
p,  3. 


CROSS-EXAMINATION. 

Of  witnesses,  see  Witnesses,  II.  b, 
, ♦-•-• 


CROSSING. 


Railroad  crossings  generally,  see  Railroads, 
II.  b. 

Injuries  at  railroad  crossings,  see  Rail- 
roads, II.  d,  3;  II.  e,  2. 


822 


CROSSWALKS— CURTESY. 


CROSSAVALKS. 

Accumulation  of  snow  on,  see  Highways, 
244,  245. 


CRO^VDING. 

Injury  to  passenger  by,  see  Cabbikbs,  172, 
244,  247,  282,  312,  321,  363-373,  500- 
503,  551 ;  Evidence,  1875 ;  Pleading, 
292 ;  Street  Railways,  25  -,  Trial,  382, 
383. 

Injury  to  customer  in  store  by,  see  Negli- 
gence, 82,  83. 


CROWN. 

Vesting  of  lease  in  crown  on  dissolution  of 
lessee  corporation,  see  Cobporations, 
390. 

Word  "Crown"  as  valid  trademark,  see 
Trademarks,  9. 


CRUEL  AND  UNUSUAL  PUNISH- 
MENT. 

See  Cbiminal  Law,  IV.  b. 

<» « » 


CRUELTY. 


To  animals,  see  Animals,  II. 
As  ground  for  divorce,  see  Divorce  and  Sep- 
AKATION,  III.  a. 


v»j!   ,iioij'jib-   CUL-LE-SAC. 

Dedication  of,  as  highway,  see  Dedication, 

13a. 
Change  in  highway  causing,  see  Highways, 

409. 


CULM  BANK. 

Loss  of  title  to  portion  sliding  over  bounda- 
ry line,  see  Adjoining  I^downees. 


CULVERT. 


Negligence  of  street  railway  company  as  to, 
causing  injury  to  passenger,  see  Car- 
riers, 271. 

Presumption  of  negligence  from  collapse  of 
covering  of,   see  Evidence,   447. 

Duty  to  guard,  see  Highways,  225. 

Injury  to  pedestrian  through  collapse  of 
covering  of,  see  Highways,  383. 

In  railroad  embankment,  see  Railroads,  II. 
f. 

Digest  1-52  L.R.A.(N.S.) 


Liability  of  successor  of  railroad  company 
for  latter's  failure  to  construct,  see 
Nuisances,  116. 

In  highway,  riglit  to  conduct  water  through, 
see  Waters,  318. 


CUMULATIVE  DIVIDENDS. 

On  preferred  stock,  see  Corporations,  296, 
297. 


CUMULATIVE  EVIDENCE, 

Prejudicial   error   in   exclusion   of,   see  Ap- 
peal AND  Error,  1255. 
New  trial  for,  see  New  Trial,  55,  56. 


CUMULATIVE  SENTENCE. 

See  Criminal  Law,  251,  258-260. 

♦-•-♦ 

CURATIVE  LAW. 

See  Acknowledgment,  IV.;  Constitution- 
al Law,  I.  b,  2,  b;  Drains  and  Sewers, 
4,  5;  Municipal  Corporations,  87,  88. 


CURB. 

Right   of   abutting   owner   to   construct   in 
street,  see  Highways,  76,  148. 


CURRENCY. 


Rule  of  express  company  as  to  time  of  de- 
livery of  currency  for  transportation, 
see  Carriers,  777.' 

In  general,  see  Money. 


CURTESY. 


Adverse  possession  of  estate  by,  see  Advebsb 
Possession,  27. 

Right  of  tenant  by,  to  have  set  aside  as 
fraudulent  deed  conveying  his  interest 
in  his  wife's  property,  see  Contracis, 
744;  Limitation  of  Actions,  30. 

Right  to,  as  condition  to  benefit  of  statute 
entitling  husband  to  half  the  estate  of 
childless  wife,  see  Descent  and  Dis- 
tribution, 24a. 

Presumption  of  intention  to  cut  off,  hy  con- 
veyance to  wife,  see  Evidence,  224. 

Liability  of  curtesy  initiate  to  attar-lnnent 
for  luisl)and's  debts,  see  Lejvy  and 
Seizure,  13. 

Effect  of,  on  running  of  limitations,  see 
Limitation  of  Actions,  188,  235.       of 

■<X 


CUSTODIA  LEGIS— CUS1X)M  AND  USAGE. 


823 


1.  A  man  who  joins  in  a  mortgage  of 
his  wife's  property  is  entitled  to  compute 
his  curtesy  interest  only  on  the  surplus 
after  satisfying  the  mortgage  and  tax  liens, 
not  on  the  entire  value  of  the  property, 
under  a  statute  giving  him  one  third  of  all 
the  real  estate  of  which  she  was  seised  in 
fee  simple  during  coverture,  unless  the 
right  shall  have  been  barred  or  relinquished. 
Ketterer  v.  Nelson,  37:  754,  141  S.  W.  409, 
146  Ky.  7. 

In  \irhat. 

2.  A  husband  has  an  estate  by  the  cur- 
tesy, after  the  death  of  his  wife,  in  lands 
which  he  had  voluntarily  settled  upon  her, 
if  he  did  not,  in  express  terms  or  by  plain 
implication,  relinquish  such  right  in  the  in- 
strument of  conveyance.  Depue  v.  Miller, 
23:  775,  64  S.  E.  740,  65  W.  Va.  120. 

(Annotated) 

3.  Curtesy  exists  in  the  equity  of  re- 
demption of  the  wife's  lands.  Jackson  v, 
Becktold  Printing  &  B.  Mfg.  Co.  20:  454, 
112  S.  W.  161.  86  Ark.  591.  (Annotated) 
"What  will  defeat. 

4.  That  an  estate  purchased  by  funds 
from  the  wife's  separate  estate  is  conveyed 
to  husband  and  wife  jointly  does  not  de- 
prive him  of  his  curtesy  in  the  property. 
Donovan  v.  Griffith,  20:  825,  114  S.  W.  621, 
215  Mo.  149. 

6.  Under  a  statute  entitling  a  husband 
to  an  estate  by  curtesy  in  land  in  which 
his  wife  died  seised  of  an  estate  of  inherit- 
ance, a  husband  is  not  entitled  to  curtesy 
in  land  of  which  his  wife  was  disseised 
during  her  lifetime  by  adverse  possession, 
although  he  was  under  disability  during 
this  time.  Calvert  v.  Murphy,  52:  534,  81 
S.   E.   403,    73   W.   Va.    731.      (Annotated) 

6.  The  conveyance  to  a  man  of  land  pur- 
chased with  funds  from  the  separate  es- 
tate of  his  wife,  and  his  holding  the  legal 
title  at  the  time  of  her  death,  will  not  pre- 
vent his  having  curtesy  in  the  property. 
Donovan  v.  Griffith,  20:  825,  114  S.  W.  621, 
215   Mo.   149. 

7.  That  the  wife's  title  to  real  estate 
is  not  acquired  until  after  the  death  of  the 
only  child  of  the  marriage  will  not  deprive 
the  husband  of  curtesy  in  the  property. 
Donovan  v.  Griffith,  20:"  825,  114  S.  W.  621, 
215  Mo.  149.  (Annotated) 

8.  A  surviving  husband  is  entitled  to 
curtesy  out  of  a  determinable  fee  owned  by 
his  wife  with  issue  born  alive,  notwith- 
standing the  contingency  upon  which  the  fee 
is  to  terminate  exists  at  the  time  of  her 
death.  Carter  v.  Couch,  20:  858,  47  So. 
1006,  157   Ala.  470.  (Annotated) 

9.  An  alien  husband  may  take  an  es- 
tate by  the  curtesy  in  land  of  which  his 
wife  died  seised,  under  a  statute  providing 
that  aliens  shall  be  capable  of  taking  by 
descent  lands  within  the  state,  in  the  same 
manner  as  citizens  may  do.  Cooke  v.  Doron, 
7:  659,  64  Atl.   595,  215   Pa.   393. 

(Annotated) 
10.  If   an   estate   by   the   curtesy    is   an 
estate  by  purchase,  it  is  covered  by  a  pro- 
vision   of    a    statute    permitting    aliens    to 
Digest  1-52  I..R.A.(X.S.) 


purchase   and   hold   real    estate.      Cooke    v. 
Doron,  7:  659,  64  Atl.  595,  215  Pa.  393. 
Rights  of  tenant  by  curtesy. 

11.  Where  a  wife  owning,  as  tenant  in 
common  with  her  brothers  and  sisters,  an 
undivided  share  of  land  subject  to  the  dower 
and  homestead  right  of  their  mother,  to- 
gether with  such  brothers  and  sisters  and 
upon  a  sufficient  consideration,  enters  into 
an  agreement  with  the  mother  not  to  par- 
tition said  lands  during  the  lifetime  of  the 
mother,  such  agreement  is  binding  upon  her 
husband  when  claiming  as  tenant  by  the 
curtesy  after  the  death  of  the  wife  and  dur- 
ing the  lifetime  of  the  mother.  Glockel  v. 
Mathews,  18:  1208,  117  N.  W.  404,  82  Neb. 
201. 

12.  A  tenant  by  the  curtesy  of  land  con- 
taining unopened  mines  becomes,  upon  sale 
of  the  mines  by  himself  and  the  remain- 
derman, entitled  to  the  income  on  the  pro- 
ceeds during  lile.  Detfenbaugh  v.  Hess,  36: 
1099,  74  Atl.  608,  225  Pa.  638. 

(Annotated) 


♦  •» 


CUSTODIA  LEGIS. 

See  Custody  of  Law. 

4  •  » ■ 


CUSTODY. 

Of  corpse,  see  Corpse,  II.  b. 

Of  children,  see  Divorce  and  Sepabation, 

VII.;  Infants,  I.  c. 
Of  law,  see  Custody  of  Law. 


CUSTODY  OF  LAW. 

Sale  of  property  in,  see  Chattel  Mortgage, 
60. 

Interference  with,  by  other  court,  see 
Courts,  IV.  c. 

Garnishment  of  property  in,  see  Garnish- 
ment, I.  c,  2. 

Replevin  for  property  in,  see  Replevin,  I.  b. 

As  to  money  in  court,  see  Money  in  Court. 


CUSTOM   AND  USAGE. 

Effect  of,  on  liability  of  title  abstracter,  see 

Abstracts,  2. 
Error  in  admitting  evidence  of,  see  Appeal 

AND  Error,  1132. 
Effect  of,  on  liability  of  garage  keeper   as 

bailee,  see  Bailment,  22. 
Banking  custom,   see  Banks;    Checks,  27. 
As    to    commercial    paper,    see    Bills    and 

Notes. 
To   permit   persons   to   ride   on   hand   cars, 

see  Carriers,  78. 
To   permit  passengers  to  ride  in   vestibule 

of  street  cars,  see  Carriers,  363. 
To  permit  shippers  to  reship  goods  on  origi- 
nal    waybills     without     payment     of 

freight,  see  Carriers,  757. 


824 


CUSTOM  AND  USAGE. 


To  receive  freight  at  other  point  than  at  reg- 
ular station,  see  Cakriebs,  771,  784, 
785. 

As  to  unloading  stock,  see  Carbiebs,  910. 

Notice  to  carrier  as  to,  see  Carriers,  861. 

As  to  giving  fog  signal,  see  Collision,  2. 

As  basis  for  statement  by  court  as  to  com- 
mon law,  see  Common  Law,  2. 

Creation  of  contract  by,  see  Contracts, 
4. 

As  part  of  contract,  see  Contracts,  345. 

Effect  of,  to  make  stock  certificate  negotiable 
instrument,  see  Corporations,  222. 

Creation  of  easement  by,  see  Easements,  4. 

Estoppel  of  bank  to  deny  right  to  refuse  to 
pay  check  to  bona  fide  purchaser,  see 
Estoppel,  189. 

Judicial  notice  as  to,  see  Evidence,  52-56. 

Effect  of  existence  of,  to  establish  lack  of 
negligence,  see  Evidence,  2116,  2117. 

Parol  evidence  of,  see  Evidence,  VI.  b. 

Evidence  as  to,  under  pleading,  see  Evi- 
dence, 2458. 

Evidence  as  to,  generally,  see  Evidence,  XI. 
b. 

SuflBciency  of  evidence  of,  to  show  negli- 
gence, see  Evidence,  2149. 

SuflBciency  of  evidence  to  show,  see  Evi- 
dence, 2326. 

Effect  of,  to  give  exclusive  right  of  fishery, 
see  Fisheries,  13. 

As  to  system  of  reckoning  time,  see  Insur- 
ance, 183. 

Of  oflScers  of  mutual  benefit  association  as 
to  interpretation  of  certificate,  see  In- 
surance, 187. 

To  send  notice  of  maturity  of  insurance  pre- 
mium, see  Insurance,  393-396. 

Of  agent  to  take  note  in  payment  of  pre- 
mium, see  Insurance,  426. 

To  accept  overdue  insurance  premium,  see 
Insurance,  559-561. 

Of  railroad  employees,  see  Mastes  and 
Servant,  414. 

Failure  of  employer  to  comply  with,  as  n^- 
ligence,  see  Master  and  Servant,  426. 

Effect  of,  to  rdieve  master  of  duty  to  em- 
ployees, see  Master  and  Servant,  325. 

Effect  of,  on  contributory  negligence  of  em- 
ployee, see  Master  and  Servant,  512, 
683,   695,   701. 

Effect  of,  to  relieve  master  from  liability 
for  servant's  negligence,  see  Master 
AND  Servant,  874. 

Notice  of,  see  Carriers,  861;  Notice,  10. 

Enlargement  of  partner's  powers  by  impli- 
cation from,  see  Partnership,   17. 

InsuflRciency  of  pleading  as  to,  see  Plead- 
ing, 322. 

Necessity  of  pleading,  see  Pleading,  472. 

Right  of  one  purchasing  goods  to  rely  on, 
see  Sale,  94. 

What  constitutes  unavoidable  delay  which 
will  be  excused  by  custom,  see  Sale, 
10«. 

Of  lumber  trade,  duty  of  building  contrac- 
tor to  comply  with,  see  Sale,  135. 

As  to  giving  warning  of  approaching  car 
to  men  working  near  street  car  track, 
see  Stbebt  Railways,  59. 

Of  survevor,  see  Surveyors,  2. 

Digest  i-52  Ii.RJ^.(N.S.) 


As  question  for  jury,  see  Trial,  327. 
As  to  rates  charged  for  water,  see  Waters, 
402. 

1.  If  a  part  of  a  custom  would  be  valid 
if  it  stood  alone  as  a  separate  and  inde- 
pendent custom,  such  part  would  be  invalid 
when  another  part  of  the  entire  custom  of 
which  it  forms  a  part  was  invalid,  unless  it 
were  reasonably  certain  that  to  enforce  the 
former  as  a  separate  and  independent  custom 
would  correspond  with  the  intent  and  pur- 
pose with  which  the  custom,  as  a  whole,  was 
established  and  used.  Dead\vjler  v.  Karow, 
19:  197,  62  S.  E.  172,  131  Ga.  227. 

2.  A  custom  to  permit  owners  of  city 
property  to  make  the  necessary  improve- 
ment in  the  streets  in  front  of  their  lots  is 
superseded  by  a  statute  requiring  them  to 
be  made  by  general  contract  to  be  let  to 
one  contractor,  so  that,  after  the  passage 
of  such  statute,  a  property  owner  may  be 
enjoined  from  attempting  to  do  the  work, 
or  interfering  with  the  one  to  whom  the 
contract  is  let.  Creekmore  v.  F.  T.  Justice 
&  Co.  44:  552,  153  S.  W.  738,  152  Ky.  514. 

(Annotated) 

3.  A  custom  which  would  relieve  a 
purchaser  from  the  obligations  imposed 
upon  him  by  the  doctrine  of  caveat  emptor, 
which  requires  a  vendee  to  protect  himself 
by  express  covenants  and  investigation  of 
the  title  which  he  is  to  acquire,  is  con- 
trary to  law,  and  cannot  be  set  up  to  con- 
trol the  law.  Thomas  v.  Guarantee  Title 
&  T.  Co.  26:  1210,  91  N.  E.  183,  81  Ohio 
St.  432. 

4.  A  custom  for  property  owners  to  re- 
tain control  of  the  outside  portions  of  prop- 
erty leased  by  them  is  bad.  Shute  v.  Bilfai, 
7:  965,  78  N.  E.  96,  191  Mass.  433. 

5.  A  custom  that  weights  taken  at  the 
port  of  shipment  upon  loading  a  vessel 
shall  be  final  and  conclusive  will  not  con- 
trol the  provision  of  a  contract  for  sale  of 
the  property,  that  any  deficiency  in  bill- 
of-lading  weights  shall  be  paid  for  by  the 
seller.  Denton  v.  Fisher,  3:  465,  62  Atl. 
627,  102  Md.  386. 

6.  Semble,  that  a  custom  that  works 
may  be  closed  in  case  of  lack  of  orders  at 
remunerative  prices  without  giving  to  the 
workmen  the  notice  ordinarily  requisite  to 
terminate  their  employment,  would  be  un- 
reasonable. Per  Farwell  L.  J.,  in  McDonald 
V.  Rosser  &  Sons  2  B.  R.  C.  780,  [1906] 
2  K.  B.  728.  Also  Reported  in  75  L.  J.  K. 
B.  N.  S.  688,  95  I*  T.  N.  S.  232,  22  Times 
L.  R.  682. 

7.  A  custom  by  which  an  architect 
claims  to  be  entitled  to  retain  plans  and 
specifications  prepared  by  him  in  doing 
work  for  which  he  has  been  paid,  after  the 
completion  of  the  work,  is  unreasonable,  and 
affords  no  defense  to  an  action  by  his  em- 
ployer to  recover  possession  of  them.  Gib- 
bon V.  Pease,  3  B.  R.  C.  460,  [1905]  1  K. 
B.  810.  Also  Reported  in  74  L.  J.  K.  B.  N. 
S,  502,  69  J.  P.  209,  53  Week.  Rep.  417,  92 
L.  T.  N.  S.  433,  21  Times  L.  R.  365,  3  L^ 
G.  R.  4«1. 


CUSTOMER— DAMAGES. 


825 


Of  real  estate  agents. 

8.  A  custom  of  real-estate  agenta  to 
take  a  secret  commission  or  rebate  on  re- 
pairs made  upon  tlie  property  is  void,  as 
contrary  to  public  policy.  Little  v.  Phipps, 
34:  1046,  »4  N.  E.  260,  208  Mass.  331. 

(Annotated) 


CUSTOMER. 


Definition  of,  see  Contbiacts,  365. 

Duty  of  electric  light  company  to,  see  Elec- 
tricity, 6,  10,  11. 

Liability  of  telephone  company  for  injury 
to,  by  lightning,  see  Electricity,  12, 
13. 

Injury  to  clothing  of,  see  Evidence,  2440; 
Negligence,  77. 

Negligent  injury  to,  see  Negligence,  78-84. 

Contributory  negligence  of,  see  Negligence, 
246,  247. 

See  also  Pateon. 

^•^ 


CUSTOMS   DUTIES. 

See  Duties. 


CUT-OFF. 

Duty  of  gas  company  to  maintain  and  oper- 
ate, see  Gas,  54. 


CYCLONE. 


Eecovery  for  destruction  of  insured  prop- 
erty caused  by,  see  Insubancse,  684, 
685. 


CYCLOSTYLE. 


Registration  of  word  "cyclostyle"  as  trade- 
mark, see  Teademabks,  6. 


CY  PRES. 

Doctrine  of,  see  Chabities,  II.  b. 


D 


DAIRIES. 

License  of,  see  License,  21,  33,  34,  40,  48, 
68,  69,  89,  126,  127. 

Ordinance  as  to  inspection  of  dairy  cowa, 
and  destruction  when  diseased,  see  Mu- 
nicipal  COEPORATIONS,    162. 


DAMAGED  STOCKS. 

Imposing  license  fee  upon  one  selling,  see 
Constitutional  Law,  704;  License. 
125. 


DAMAGES. 


7.  General  principles;  nominal  dam- 
ages;     preventing      unnecessary 
amount,  1—26. 
II.  Exem,plary  or  punitive,  27—99. 

a.  In  general,  27— 6S. 

b.  For   act    of  servant;   carrier's 

liahility,  69—99. 
III.  Measure    of    compensation,    100— 
730. 
a.  On  contracts,  100—231. 

1.  Generally,  100—122. 

2.  On  bonds,  123,   124. 

3.  As  to  real  property,  125— 

161. 
Digest  1-52  L.R.A.(N.S.) 


III.  a — continued. 

4:.  Sales  of  personalty;  war- 
ranty,   162—199. 

a.  Seller's  failure  to  de- 

liver,  162-172. 

b.  Buyer's       failure       to 

complete       purchase, 
173-182. 
C.  Breach     of     warranty, 
183-199. 
6.  Of  employment,  200—207. 

6.  To    advance   money;    non- 

payment of,  or  failure  to 
collect,  checJcs,  208—214. 

7.  Liquidated  damages,  215— 

231. 

b.  For  telegrams,  232—252. 

c.  Expulsion    of,     or    failure    in 

duty  to,  passenger,  253— 
277. 

1.  In  general,  253—269. 

2.  Ejection,    270-277. 

d.  In  respect  to   freight   or  bag- 

gage, 278-301. 

e.  Torts     generally;     breach     of 

promise,  302—320. 

f.  Fraud,   321—331. 

g.  Assault;   seduction;    false   im- 

prisonmnent; malicious  prose- 
cution;    abuse     of     process, 
832-340. 
h.  Libel  or  slander;  insult,  341— 
346. 


826 


DAMAGES. 


III. — continued. 

i.  Personal  injuries;  death,  347— 
444. 

1.  In  general,   347—377. 

2.  Injuries  to  married  wom- 

en, 378-386. 
a.  Death,  387-403. 
4.  Instances        of       amount, 
404—444. 

a.  In  general,    404—434. 

b.  Death,    435—444. 

j.  Injury  to,  or  talcing  or  deten- 
tion of,  personal  property, 
445-458. 

Ic.  Injury  to  real  property;  nui- 
sance,  459—507. 

1.  In  general,   459—467. 

2.  Injury   to,    or   destruction 

of,     buildings,    trees,    or 
crops,  468—490. 
8.  Injury     to    water    rights; 

overflows,  491—498. 
4.  Nuisances,   499—507. 
Tele.  Injury  to  business,  508,  509. 
I.  Condetnnation  or   depreciation 
in  valtie  by  eminent  do- 
main, 510—590. 

1.  In  general,   510—516. 

2.  Value;   estim,ate  of,   517— 

541. 

a.  In  general,   517—531. 

b.  Value  for  special  use, 

532-541. 
8.  Consequential         injuries, 

542—556. 
4.  As     to     abutting     owners, 
557-561. 

a.  In    general;   railroads 

and    street    railroads 
in  streets,    557—561. 

b.  Elevated  railroads. 

6.  In    highway    cases,    562— 
.  ry  574. 

6.  Advantages;  offsets,   575— 
590. 

a.  In  general,    575—581. 

b.  Special  benefits,  582— 

590. 
m.  In  injunction  cases,  591—593. 
f  n.  In     trademark,     patent,     and 

copyright  cases,  594—605. 
o.  Mental  anguish,    606—670. 

1.  Accompanying         physical 

suffering,   606—614. 

2.  Unaccompanied    by    phys- 

ical     injury,       615— 
670. 

a.  In  general,    615—637. 

b.  Default  as  to  telegram 

or  telephone  message 
or    the    transmission 
of  money,    638—661. 
"''  C.  Failure  of  duty  to  pas- 

senger,   662—670. 
p.  Loss  of  profits,    671—706. 

1.  In  general,    671—680. 

2.  From  breach  of  contract, 

681-706. 
q.  Time    for   which   recoverable; 

prospective,   707,   708. 
r.  Counsel  fees,   709. 
Digest  1-52  I..R.A.(N.S.) 


///. — continue.  *0 

s.  Mitigation;     reduction,      710— 

724. 
t.  Aggravation,  725—730. 
u.  Ap2>ortionmcnt. 

IV.  Assessment ;  double  or  treble  dam- 
ages,   731—735. 

Including  in  bill  for  accounting  claim  for 
damages  recoverable  at  law,  see  Action 
OB  Suit,  123. 

Review  of,  on  appeal,  see  Appeal  anp  Er- 
BOR,  VII.  1,  2,  b. 

Instruction  as  to,  see  Appb:al  and  Ebbob, 
796,  797,  1427;  VII.  m.  4,  a,  3;  889- 
892;  III.  e,  2. 

Discretion  in  submitting  damages  to  be 
awarded  various  parties  to  one  jury, 
see  Appeal  and  Erkob,  647. 

New  trial  for  error  as  to,  see  Appeal  and 
Ebroe,  672-075,  677,  1619,  1620;  New 
Tbial,  31-35. 

Objecting  for  first  time  on  appeal  to  award 
of,  see  Appeal  and  Ebbor,  804-806. 

Prejudicial  error  as  to  measure  of,  see  Ap- 
peal AND  Errob,  185,  1540-1551. 

Increasing  or  reducing  on  appeal,  see  Ap- 
peal AND  Erbob,  1587-1599. 

Effect  of  absence  of  exception  on  right  to 
correct  excessive  allowance  of,  on  ap- 
peal, see  Appeal  and  Ebbob,  358. 

Assignment  of  right  of  action  for,  see  As- 
signment, 1-3. 

For  failure  to  transfer  on  books  bank  stock 
purchased,  see  Banks,  13. 

Conflict -of  laws  as  to  measure  of,  see  Con- 
flict OF  Laws,  160-165. 

Class  legislation  as  to,  see  Constitutional 
Law,    333. 

Due  process  of  law  as  to,  see  Constitution- 
al Law,  552,  553,  558-562,  565. 

Federal  courts  following  state  decision  as 
to  measure  of,  see  Coubts,  327,  328,   . 

Right  to  recover  expense  of  preparing  for 
suit  in  case  of  dismissal  by  plaintiff, 
see  Dismissal  and  Discontinuance,  6. 

Retaining  jurisdiction  for  assessment  of, 
see  Equity,  I.  h. 

Opinion  evidence  as  to,  see  Evidence,  VTL  f. 

Relevancy  of  evidence  as  to,  generalty,  see 
Evidence,  XI.  g. 

Admissibility  of  evidence  as  to,  under  plead- 
ing, see  Evidence,  2436-2438. 

Sufficiency  of  proof  of,  see  Evidence,  2317- 
2323. 

Extent  of  recovery  on  insurance  policy,  see 
Insubance,  VI.  c. 

Interest  on  amount  recovered  as,  see  In- 
terest, I.  c. 

Right  to  jury  to  assess  damages  on  default 
judgment,  see  Juby,  16. 

Necessity  of  proving  special  damages,  see 
Libel  and  Slandeb,  160-162. 

Sufficiency  of  allegations  in  mandamus  pro- 
ceeding to  support  judgment  for,  see 
Mandamus,  112. 

Remittitur  of,  see  New  Tbial,  V.  e;  Trial, 
V.  e. 

Deduction  from  recovery  by  father  of  wages 
of  minor  son,  for  necessaries  furnished 
by  employer,  see  Parent  and  Child, 
11,  12. 


DAMAGES,  1. 


827 


Right  to  recover  from  photographer  for  at- 
tempting to  use  photograph  for  his  own 
jjurposes,  see  PiiOTOGuapus,  1. 

Allegations  as  to,  see  Pleading,  II.  f. 

Amendment  of  allegations  as  to,  see  Plead- 
ing, 98. 

Assailing  by  demurrer  right  to,  or  measure 
of,  see  Pleading,  622-632. 

Liability  of  property  in  hands  of  receiver  for 
damages  resulting  from  his  negligence, 
see  Receivers,  43. 

Recovery  of,  on  counterclaim,  see  Set-Off 
AND  Counterclaim. 

Set-off  of  unliqviidated  damages,  see  Set-Off 
AND  Counterclaim,  8. 

Sufficiency  of  evidence  to  carry  question  of, 
to  jury,  see  Trial,  105-112. 

Nonsuit  because  of  failure  to  prove  sub- 
stantial damages,  see  Trial,  694. 

/.  General  principles;  nominal  dam- 
ages; preventing  unnecessary 
amount. 

(See  also  same  heading  in  Digest  L.B.A. 
1-10.) 

Nominal  damages.  ^    .!''^ 

Grant  of  new  trial  in  suit  involving  nomi- 
nal damages  only,  see  Appeal  and  Er- 
ror, 681. 

Prejudicial  error  in  instruction  as  to,  see 
Appeal  and   Error,   1359. 

Prejudicial  error  in  failing  to  award,  see 
Appeal  and  Error,  1540-1543. 

Setting  aside  verdict  for  nominal  damages, 
see  Appeal  and  Error,  1544. 

Judgment  on  appeal  where  damages  are 
nominal  only,  see  Appeal  and  Error, 
1604. 

Nominal  recovery  on  insurance  policy,  see 
Insurance,  779. 

Sufficiency  of  declaration  to  state  cause  of 
action  for,  see  Pleading,  626,  628, 
632. 

Permitting  recovery  of  nominal  damages  in 
order  to  allow  plaintiff  costs,  see  Trial, 
694. 

See  also  infra,  36,  312;  Pleading,  608. 

1.  Nominal  damages  only  can  be 
awarded  a  remote  grantee  for  breach  of 
covenants  of  seisin  and  warranty  in  a  deed 
of  real  estate,  where  there  is  no  proof  of 
the  consideration  paid  by  him  or  the  in- 
termediate grantor  for  the  property.  Cole- 
man v.  Lucksinger,  26:  934,  123  S.  W.  441, 
224  Mo.   1. 

2.  The  recovery  for  breach  of  a  contract 
by  a  lessee  of  the  right  to  remove  gravel, 
not  to  interfere  in  so  doing  with  the  lateral 
support  of  adjoining  property  the  division 
fence  between  which  and  his  own  land  the 
lessor  is  bound  to  maintain,  by  excavating 
so  closely  to  the  division  line  that  the  fence 
and  a  part  of  the  adjoining  land  fall  into 
the  excavation,  is  more  than  nominal,  al- 
though the  lessor  has  not  been  called  upon 
to  respond  in  damages  or  incur  any  expense 
because  of  the  trespass.  Orr  v.  Dayton  & 
M.  Traction  Co.  48:  474,  96  N.  E.  462,  178 
Ind.  40. 

Digest  1-52  L.R.A.(N.S.) 


3.  Substantial  damages  cannot  be  re- 
covered from  one  who  interferes  to  pre- 
vent another  from  securing  a  government 
contract  for  which  he  has  bid,  where  the 
government  has  tlie  right  to  reject  any 
bid,  so  that  there  is  nothing  to  show  that 
the  contract  would  have  been  secured  in 
the  absence  of  interference.  Hardison  v. 
Reel,  34:  1098,  70  S.  E.  463,  154  N.  C.  273. 

4.  The  damage  sustained  by  the  owner 
of  lands  abutting  upon  a  highway,  by  the 
taking  of  a  strip  immediately  adjoining 
his  property  line,  for  the  purpose  of  con- 
structing thereon  a  telephone  and  telegraph 
line,  is  not,  as  a  matter  of  law,  merely 
nominal,  but  is  substantial  in  the  sense 
that  the  owner  is  entitled  to  recover  com- 
pensation for  all  damage  actually  sustained. 
Tri-State  Teleph.  &  Teleg.  Co.  v.  Cosgriff, 
26:  1171,  124  N.  W.  75,  19  N.  D.  771. 

5.  Nominal  damages  only  should  be 
awarded  the  owner  of  the  fee  and  the  abut- 
ting owners,  in  case  of  the  taking  by  the 
city  of  the  fee  of  a  street  which  had  been 
platted  by  the  owner,  who  had  sold  all  the 
lots  upon  the  street,  so  that  a  perpetual 
easement  in  it  had  been  dedicated  to  the 
lot  owners.  Re  New  York,  37:  281,  89 
N.  E.  829,  196  N.  Y.  286. 

6.  A  mere  change  of  a  street  grade  does 
not  entitle  an  abutting  prope)  ty  owner  to 
nominal  damages  as  matter  of  course,  under 
a  constitutional  provision  that  private  prop- 
erty shall  not  be  damaged  for  public  use 
without  compensation.  Swift  &  Co.  v.  New- 
port News,  3:  404,  52  S.  E.  821,  105  Va.  108. 

7.  A  railroad  company  is  liable  in  nomi- 
nal damages  for  carrying  a  passenger  be- 
yond his  station,  into  its  yards,  without 
giving  him  an  opportunity  to  alight  at  the 
station.  Natchez,  C.  &  M.  R.  Co.  v.  Lam- 
bert, 37:  264,  54  So.  836,  99  Miss.  310. 

8.  Nominal  damages  will  be  awarded  in 
a  libel  action,  for  purposes  of  vindication, 
where  no  special  damages  have  been  sus- 
tained. Levert  v.  Daily  States  Pub.  Co.  23: 
726,  49  So.  206,  123  La.  594. 

9.  Nominal  damages  at  least  may  be 
recovered  by  a  property  owner  in  case  snow 
is  permitted  to  slide  onto  his  property  from 
the  roof  of  a  building  on  neighboring  prop- 
erty. Bishop  v.  Readsboro  Chair  Mfg.  Co. 
36:  1171,  81   Atl.  454,  85  Vt.   141. 

10.  A  lower  riparian  owner  who  is  dam- 
aged by  an  illegal  invasion  of  his  property 
rights,  such  as  the  continuous,  unreason- 
able diminution  and  detention  of  the  water 
in  a  stream  by  an  upper  owner,  is  entitled  to 
nominal  damages,  even  though  he  show  no 
special  damage.  Price  v.  High  Shoals  Mfg. 
Co.  22:  684,  64  S.  E.  87,  132  Ga.  246. 

11.  One  upon  whose  land  water  is  backed 
by  the  obstruction  of  the  drainage  outlet  is 
entitled  at  least  to  nominal  damages.  Har- 
vey V.  Mason  City  &  Ft.  D.  R.  Co.  3:973, 
105   N.   W.   958,   129   Iowa,   465. 

12.  One  is  entitled  to  nominal  damages 
at  least  for  the  pollution  of  a  stream  run- 
ning through  his  property  by  the  casting 
of  chemicals  into  it,  although  he  shows  no 
special  damage  from  the  injury.     Hodges  v. 


828 


DAMAGES,  I. 


Pine  Product  Co.  33:  74,  68  S.  E.  1107,  135 
Ga.  134. 

13.  The  recovery  by  a  votfer  whose  bal- 
lot is  wilfully  and  maliciously  rejected, 
against  the  election  otlicers  who  rejected  it, 
is  not  limited  to  nominal  damages.  Lane 
V.  Mitchell,  36:  968,  133  N.  W.  381,  153 
Iowa,  139. 

14.  A  patient  in  a  sanitarium  who  was 
caused  intense  suffering  by  the  negligent 
act  of  a  nurse,  who  applied  alcohol  to  his 
eye  instead  of  the  mild  solution  prescribed, 
is  entitled  to  recover  nominal  damages  from 
the  proprietor  of  the  institution,  where  no 
permanent  injury  resulted  from  the  mis- 
take. Stanley  v.  Schumpert,  6:  306,  41  So. 
565,  117  La.  255. 

Preventing  unnecessary  amount. 
Effect  of  physician's  lack  of  skill,  see  infra, 

359. 
Refusal  to  seek  medical  or  surgical  relief, 

see  infra,  369-371. 
Eflfect  of  prior  disease  or  infirmity,  see  infra, 

372-377. 
Reduction    or    mitigation    of    damages,    see 

infra.  III.  s. 
Aggravation  of  damages,  see  infra,  III.  t. 
Duty  of  consignee  to  receive  goods  injured 

in  transportation  and  allow  value  upon 

claim    against    carrier,    see    Cabbiers, 

793. 
See  also  Carbiebs,  382. 

15.  The  rule  that  a  party  aggrieved  by 
a  trespass  will  not  be  allowed  to  recover 
damages  resulting  from  his  neglect  to  em- 
ploy the  obvious  and  ordinary  means  of  pre- 
venting or  lessening  tl^em  is  simply  one  of 
good  faith  and  fair  dealing;  but  whenever 
one's  right  to  his  property  is  wilfully  or 
criminally  invaded  by  a  continuing  tort,  and 
injury  arises  therefrom,  he  may  recover 
for  any  damages  sustained  by  reason  of 
such  invasion,  and  is  not  bound  under  such 
circumstances  to  do  any  act  to  relieve  the 
tort  feasors  of  the  ordinary  consequences  of 
their  wrongs;  and  this  is  especially  true 
where  the  trespassers  have  profited  by  their 
tort.  Shannon  v.  McNabb,  38:  244,  120  Pac. 
268,  29  Okla.  829.  (Annotated) 

16.  A  property  owner  is  under  no  obli- 
gation to  attempt  to  minimize  the  injury 
caused  by  a  nuisance  created  by  the  wash- 
ing of  filth  from  neighboring  property  onto 
the  public  street  near  his  property,  by 
clearing  it  away.  Cumberland  Grocery  Co. 
V.  J.  S.  Baugh's  Admr.  43:  1037,  152  S.  W. 
565,   151  Ky.  641. 

17.  No  duty  rests  upon  the  owner  of 
property  which  is  beinr;  injured  by  a  nui- 
sance to  take  active  measures  to  prevent  fur- 
ther injury  in  order  to  minimize  the  dam- 
ages for  whicli  the  wrongdoer  may  be  liable. 
Niagara  Oil  Co.  v.  Ogle,  42:714,  98  N.  E.  60, 
177  Ind.  292. 

18.  A  lower  riparian  owner  who  is  dam- 
aged because  of  the  continuous,  unreason- 
able diminution  and  detention  of  the  water 
in  a  stream  by  an  upper  owner  is  under  no 
legal  obligation  to  exercise  ordinary  care 
to  avoid  or  lessen  the  damages,  as  such  acts 
constitute  a  continuous  tort  which  is  an 
illegal  invasion  of  the  lower  owner's  prop- 
Digest  1-52  L.R.A.(N.S.) 


erty  rights.    Price  v.  High  Shoals  Mfg.  Co. 
22:  684,  64  S.  E.  87,  132  Ga.  246. 

(Annotated) 

19.  A  lessee  of  a  farm  is  under  no  obliga- 
tion to  dig  a  ditch  to  protect  his  crops 
from  water  obstructed  by  a  railroad  em- 
bankment, in  order  to  minimize  the  inju- 
ries. Yazoo  &  M.  V.  R.  Co.  v.  Sultan,  49: 
760,  63  So.  672,  —  Miss.  — ,       (Annotated) 

20.  Damages  resulting  from  tiie  breach 
of  a  contract  to  lease  lands  and  tenements 
cannot  be  recovered  in  so  far  as  plaintiff 
could  have  prevented  them  by  tlie  exercise 
of  reasonable  exertion  or  care.  Moses  v, 
Autuono,  20:  350,  47  So.  925,  56  P'la.  499. 

21.  Though  the  measure  of  damages,  in 
an  action  by  a  lessee  against  the  lessor  for 
failure  to  give  possession  of  the  leased  prem- 
ise* At  the  time  stipulated  for  the  com- 
mencement of  the  term,  is  a  legal  rule,  it  i» 
founded  upon  equitable  considerations, 
which  bind  the  injured  party  to  such  pru- 
dent action  and  reasonable  exertion  as  will 
mitigate  the  injury,  and  deny  to  him  re- 
covery of  such  damages  as  he  could  have 
prevented  thereby.  Huntington  Easy  Pay- 
ment Co.  V.  Parsons,  9:  1130,  57  S.  E.  253, 
62  W.  Va.  26. 

22.  A  lessee  of  property  with  covenant 
for  renewal  is  not  bound,  upon  notification 
of  anticipatory  breach  of  the  covenant,  to 
accept  an  offer  of  a  renewal  at  an  in- 
creased rental  prior  to  the  time  for  incep- 
tion of  the  new  term,  in  order  to  minimize 
the  covenantor's  damages.  Neal  v.  Jeffer- 
son, 41:  387,  99  N.  E.  334,  212  Mass.  517. 

28.  Upon  refusal  of  the  seller  to  comply 
with  his  contract  to  furnish  lumber  for  a 
building,  the  buyer  is  under  no  obligation 
to  purchase  from  him  at  an  advanced  price, 
in  order  to  minimize  the  damages  for  which 
he  may  be  liable  for  delaying  the  completion 
of  the  structure  by  his  breach  of  contract. 
Campfield  v.  SaueV,  38:  837,  189  Fed.  576, 
111  C.  C.  A.  14.  (Annotated) 

24.  When  the  refusal  of  a  telegraph  com- 
pany to  pay  over  money  causes  one  without 
funds  to  act  quickly,  and,  instead  of  seeking 
to  recover  from  a  sleeping  car  company  the 
money  theretofore  paid  for  a  section  and 
awaiting  the  possibility  of  getting  the 
money  next  day,  he  decides  to  travel  home- 
ward, a  finding  of  the  jury  that  tlie  injury 
was  not  self-imposed  will  not  be  disturbed. 
Western  U.  Teleg.  Co.  v.  Wells,  2:  1072,  39 
So.  838,  50  Fla.  474. 

25.  A  shipper  is  not,  in  order  to  min- 
imize the  damages  and  relieve  himself  from 
the  charge  of  contributory  negligence,  bound 
to  remove  from  a  car  in  which  his  cattle 
are  placed  a  notice  erroneously  placed 
thereon  by  the  carrier  indicating  that  the 
cattle  are  frotn  an  infected  district,  where 
such  notices  are  provided  by  government 
regulation,  and  interference  with  them  is 
prohibited  under  penalty.  Wabash  R.  Co. 
V.  Campbell,  3:  1092,  76  N.  E.  346,  219  111. 
313.  (Annotated) 

26.  Where  the  effect  of  an  attachment 
was  to  prevent  a  sale  of  property  attached, 
the  duty  to  mitigate  damages  did  not  re- 
quire the  giving  of  a  bond  to  dissolve  the 


DAMAGES,  II.  a. 


829 


attachment.      Malone    v.    Belcher,    49:  753, 
103  N.  E.  637,  216  Mass.  209. 

II.  Exemplary  or  punitive. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Reversing  verdict  because  of  excessive  puni- 
tive damages,  see  Appeal  and  Error, 
935. 

Instructions  as  to,  see  Appeal  and  Error, 
1370,  1371;  Trial,  1004-1006. 

Error  in  failing  to  require  separation  of 
compensatory  and  punitive  damages  in 
verdict,  see  Appeal  and  Error,  1428. 

Refusal  to  submit  question  of,  to  jv*y,  see 
Appeal  and  Error,  1514. 

Prejudicial  error  in  allowance  of,  see  Ap- 
peal and  Error,  1545. 

Due  process  of  law  in  statute  as  to,  see 
Constitutional  Law,  561. 

Presumption  of  malicious  intent  giving 
right  to,  see  Evidence,  245. 

Evidence  as  to,  see  Evidence,  1754,  1755. 

Variance  between  pleading  and  proof  as  to, 
see  Evidence,  2495. 

Amendment  of  pleading  to  permit  recovery 
of,  see  Pleading,  99. 

Sufficiency  of  evidence  to  carry  question  of, 
to  jury,  see  Trial,  107,  108. 

Duty  of  court  to  define  punitive  damages, 
see  Trial,  882. 

27.  Punitive  damages  are  allowed  for 
the  public  good  and  for  the  purpose  of 
deterring  others  from  a  like  offense,  and 
never  for  the  purpose  of  enriching  the  in- 
jured person.  Yazoo  &  M.  V.  R.  Co.  v. 
Hardie,   34:  740,   55   So.   42,   100   Miss.    132. 

28.  A  wrongful  act  done  under  a  bona 
fide  claim  of  right,  and  without  malice  in 
any  form,  constitutes  no  basis  for  punitive 
damages.  Jopling  v.  Bluefield  Waterworks 
k  Improv.  Co.  39:  814,  74  S.  E.  943,  70  W. 
Va.  670. 

29.  Exemplary  damages  cannot  be  re- 
covered in  an  action  for  breach  of  contract 
other  than  actions  against  a  banker  for 
refusing  to  pay  a  customer's  check  when  he 
has  in  his  hands  funds  of  the  customer  to 
meet  it,  and  actions  for  breach  of  promise 
of  marriage,  and  actions  where  the  vendor 
of  real  estate  without  any  fault  on  his  part 
fails  to  make  title.  Per  Lord  Atkinson  in 
Addis  V.  Gramophone  Co.  Ltd.  3  B.  R.  C. 
98,  [1909]  A.  C.  488.  Also  Reported  in  78 
L.  J.  K.  B.  N.  S.  1122,  101  L.  T.  N.  S.  460. 

{ Annotated ) 
liability  of  surety  on  bond. 

30.  In  the  absence  of  statute  providing 
for  punitive  damages,  such  damages  are 
not  recoverable  in  an  action  against  the 
sureties  for  breach  of  an  attachment  bond. 
Floyd  V.  Anderson,  43:  788,  128  Pac.  249, 
36  Okla.  308. 

31.  A  surety  on  the  bond  of  a  marshal 
is  not  liable  for  the  punitive  damages  al- 
lowed by  statute  against  one  killing  another 
with  firearms  in  case  the  marshal  commits 
Digest  1-52  Ii.R.A.(N.S.) 


such  act.     Growbarger  v.  United  States  Fi- 
delity &  G.  Co.  11:  758,  102  S.  W.  873,  126 
Ky.  118. 
Torts  or  negligence  generally. 

Conflict  of  laws  as  to  right  to,  see  Conflict 

of  Laws,  97. 
See  also  infra,  315. 

32.  There  may  be  an  allowance  of  puni- 
tive damages  in  an  action  of  tort,  although 
no  actual  damages  are  shown.  Fields  v. 
Lancaster  Cotton  Mills,  11:822,  58  S.  E. 
608,  77  S.  C.  546. 

33.  To  authorize  a  judgment  for  exem- 
plary damages,  in  an  action  sounding  in 
tort,  the  proof  must  show  some  element  of 
fraud,  malice,  or  oppression.  The  act  which 
constitutes  the  cause  of  action  must  be 
actuated  by  or  accompanied  with  some  evil 
intent,  or  must  be  the  result  of  such  gross 
negligence — such  disregard  of  another's 
right — as  is  deemed  equivalent  to  such  in- 
tent. Ft.  Smith  &  W.  R.  Co.  v.  Ford,  41: 
745,  126  Pac.  745,  34  Okla.  575. 

34.  To  render  the  owner  of  a  milldam 
immune  from  liability  for  injury  to  lower 
riparian  property  by  its  giving  way,  it 
mu-st  have  been  constructed  sufficiently 
strong  to  resist  not  merely  ordinary  fresh- 
ets, but  such  extraordinary  floods  as  may 
reasonably  be  anticipated.  City  Water 
fower  Co.  v.  Fergus  Falls,  32:  59,  128  N. 
W.  817,   113  Minn.  33. 

35.  Exemplary  damages  may  be  awarded 
for  wanton  or  malicious  interference  with 
anotlaer's  business  to  the  extent  of  driving 
customers  away,  or  if  the  act  is  done  under 
circumstances  of  aggravation.  Sparks  v. 
McCrary,  22:  1224,  47  So.  332,  156  Ala.  382. 

36.  Punitive  damages  may  be  allowed 
for  the  infringement  of  a  trademark,  al- 
though the  actual  damages  are  only  nomi- 
nal. Lampert  v.  Judge  &  Dolph  Drug  Co. 
37:  533,  141  S.  W.  1095,  238  Mo.  409. 

37.  The  placing  by  a  retailer  of  inferior 
cigars  in  trademarked  boxes,  and  making 
sales  therefrom,  is  legal  malice,  which  will 
justify  punitive  damages  in  favor  of  the 
owner  of  the  trademark.  Lampert  v.  Judge 
&  Dolph  Drug  Co.  37:  533,  141  S.  W.  1095, 
238   Mo.   409. 

38.  Punitive  damages  may  be  allowed 
against  persons  who,  after  rightfully  en- 
tering upon  property  to  remove  poles  there- 
from, use  loud,  profane,  and  lewd  language 
in  the  presence  of  the  wife  of  the  occupant, 
and  enter  his  dwelling  without  authority, 
frightening  her  to  her  injury.  May  v. 
Western  U.  Teleg.  Co.  37:  912,  72  S.  E.  1059, 
157  N.  C.  416. 

39.  Ordinarily  the  damage  recoverable 
by  a  tenant  for  interference  with  his  im- 
plied right  to  light  and  air  from  the  adjoin- 
ing land  of  the  landlord  is  the  depreciated 
rental  value  of  the  tenement;  but  if  the 
structure  which  obstructs  the  light  and  air 
be  so  constructed  as  to  project  the  rainwater 
through  the  window  of  the  tenement  to  the 
injury  of  the  tenant's  bedroom  furnishings 
and  to  his  personal  discomfort,  and  this  is 
done  with  the  view  of  causing  tlie  tenant 
to  abandon  his  lease,  punitive  damages  may 


830 


DAMAGES,  II.  a. 


be  allowed.    Darnell  v.  Columbus  Show  Case 
Co.  13:  333,  58  S.  E.  631,  129  Ga.  62. 

40.  Pimitivo  damages  may  bo  awarded 
against  a  railroad  company  in  favor  of  an 
adjoining  landowner  who  is  injured  by  its 
refusal  to  remove  from  its  right  of  way 
the  carcasse!*  of  animals  killed  by  its  train, 
80  that  they  become  a  nuisance.  Yazoo  & 
M.  Vallev  R.  Co.  v.  Sanders,  3:  11 19,  40  So. 
163,  87  Miss.  607.  (Annotated) 
Libel  and  slander. 

Relevancy  of  evidence  on  question  of,  see 
Evidence,  1631. 

Question  for  jury  as  to  sufficiency  of  re- 
traction of  libel  to  mitigate  exemplary 
damages,  see  Trial,  340. 

41.  In  an  action  for  slander,  punitive 
damages  can  be  allowed  only  where  the  de- 
fendant is  found  to  have  been  actuated  by 
express,  as  distinguished  from  implied, 
malice.  Wood  v.  Custer,  38:  1176,  121  Pac. 
355,  86  Kan.  387. 

42.  Exemplary  damages  may  be  allowed 
for  maliciously  charging  one  with  being  an 
habitual  drunkard,  where  actual  damages 
are  shown.  Thompson  v.  Rake,  18:  921,  118 
K  W.  279,  140  Iowa,  232. 

43.  In  jurisdictions  where  punitive  dam- 
ages are  recoverable  only  when  provided  for 
by  statute,  in  the  absence  of  such  statute  a 
retail  merchant  who  is  erroneously  reported 
as  delinquent  by  a  member  of  a  wholesaler's 
protective  association,  so  that  he  is  denied 
credit  by  other  wholesalers,  can  recover  only 
the  actual  damages  which  he  can  show  to 
have  resulted  from  such  report,  which  may 
include  such  damages  for  injury  to  char- 
acter, reputation,  and  feelings,  and  for 
mental  suffering,  as  are  supported  by  the 
evidence.  Woodhouse  v.  Powles,  8:  783,  86 
Pac.  1063,  43  Wash.  617. 

Breach  of  marriage  promise. 

44.  The  law  in  reference  to  the  damages 
recoverable  in  an  action  for  breach  of 
promise  of  marriage  is  analogous  to  that 
in  actions  for  torts,  and  exemplary  dam- 
ages may  be  awarded  upon  like  grounds. 
Baumle  v.  Verde,  41:  840,  124  Pac.  1083,  33 
Okla.  243.  (Annotated) 

45.  Under  a  statute  providing  that  ex- 
emplary or  punitive  damages  are  allowable 
only  where  the  defendant  has  been  guilty 
of  oppression,  fraud,  or  malice,  actual  or 
presumed,  a  plaintiff  in  an  action  for  breach 
of  promise  of  marriage  is  not  entitled  to 
exemplary  damages  upon  a  simple  refusal 
on  the  part  of  the  defendant,  without  legal 
excuse,  to  carry  out  the  contract  of  mar- 
riage. Baumle  v.  Verde,  41 :  840,  124  Pac. 
1083,   33   Okla.  243. 

46.  Punitive  damages  cannot  be  recov- 
ered in  a  breach-of-promise  action  on  the 
ground  of  a  defense  that  the  plaintiff  was 
the  subject  of  a  "chronic  disease  of  an  epi- 
leptic nature,"  in  th.  absence  of  allegation 
and  proof  that  the  defendant  acted  mali- 
ciously or  wantonly  or  in  bad  faith  in  plead- 
ing and  attempting  to  prove  the  defense. 
Hively  v.  Golnick,  49:  757,  144  N.  W.  213, 
123  Minn.  498. 

Digest  1-52  I..B.A.(N.S.) 


Seduction. 

47.  The  fact  that  punitive  damages  have 
been  allowed  in  an  action  by  a  woman  for 
her  own  seduction  is  no  bar  to  an  allow- 
ance of  similar  damages  in  an  action  by 
her  father  for  loss  of  services,  expense,  and 
humiliation  caused  thereby.  Luther  v. 
Shaw,  52:  85,  147  N.  W.  18,  157  Wis.  234. 

48.  The  allowance  bf  $5,000  as  punitive 
damages  as  a  punishment  deterrent  and  ex- 
ample in  a  seduction  case  cannot  be  set 
aside  for  perversity,  although  larger  than 
might  have  been  allowed  by  other  men. 
Luther  v.  Shaw,  52:  85,  147  N.  W.  18,  157 
Wis.  234.  (Annotated) 
Alienation  of  affections. 

Evidence  as  to  damages,  see  Evidence,  1754. 

49.  Punitive  damages  may  be  awarded 
against  a  woman  who  entices  away  another 
woman's  husband  wantonly  and  malicious- 
ly, with  the  design  of  humiliating  her. 
Scott  v.  O'Brien,  16:  742,  110  S.  W.  260, 
129  Ky.  1. 

Fraud. 

50.  Punitive  damages  may  be  allowed 
for  selling  hogs  infected  with  cholera  un- 
der the  fraudulent  representation  that  they 
were  sound  in  health  where  the  statute  au- 
thorizes such  damages  in  actions  not  found- 
ed on  contract  where  defendant  has  been 
guilty  of  misrepresentation,  fraud,  or  mal- 
ice. Hobbs  V.  Smith,  34:  697,  115  Pac.  347. 
27  Okla.  830.  (Annotated) 
Assault  and  battery. 

On  passenger,  see  infra,  78-81,  90. 
Evidence  as  to,  see  Evidence,  1743. 

51.  The  jury  may,  in  its  discretion, 
award  exemplary  damages  for  an  assault, 
where  the  act  complained  of  was  wanton, 
malicious,  fraudulent,  or  oppressive,  and  dis- 
closed a  reckless  disregard  of  the  rights  of 
the  person  injured.  Anderson  v.  Inter- 
natiotial  Harvester  Co.  16:  440,  116  N.  W. 
101,  104  Minn.  49. 

52.  One  wrongfully  and  unlawfully  as- 
saulted by  another  may  be  awarded  exem- 
plary damages,  in  the  discretion  of  the  jury, 
in  the  absence  of  actual  malice,  since  an  as- 
sault of  that  nature  is,  in  legal  contem- 
plation, malicious.  Anderson  v.  Inter- 
national Harvester  Co.  16:  440,  116  N.  W. 
101,  104  Minn.  49.  (Annotated) 

53.  Punitive  damages  may  be  awarded 
for  an  unprovoked  and  malicious  assault. 
Hanna  v.  Sweeney,  4:  907,  62  Atl.  785,  78 
Conn.  492. 

54.  The  punitive  damages  which  may  be 
awarded  for  a  malicious  assault  and  battery 
cannot  exceed  the  expenses  of  the  litigation 
in  the  suit  less  taxable  costs.  Hanna  v. 
Sweeney,  4:  907,  62  Atl.  785,  78  Conn.  492. 

(Annotated) 

55.  Punitive  damages  may  be  awarded 
against  a  member  of  a  mob  who  assists  in 
forcing  a  person  to  seek  refuge  in  his  owu 
home  by  threats  and  hostile  demonstrations, 
and  fires  a  pistol  at  him  after  he  reaches 
there,  if  he  has  not  been  punished  for  his 
offense  against  the  public.  Saunders  v.  Gil- 
bert, 38:404,  72  S.  E.  610,  156  N.  C.  463. 


DAMAGES,  II.  b. 


831 


Abnse  of  process. 

See  also  infra,  82. 

56.  Counsel  fees  in  case  of  the  malicious 
suing  out  of  an  attachment  are  not  limited 
to  those  reasonable  with  reference  to  the 
actual  damages  sustained,  by  a  statute  pro- 
viding that,  for  wrongfully  suing  out  an 
attachment,  recovery  may  be  had  for  the 
actual  damages  sustained  and  reasonable 
attorneys'  fees  to  be  fixed  by  the  court; 
and  if  it  be  shown  that  the  attachment  was 
sued  out  maliciously,  exemplary  damages 
may  be  recovered.  International  Harvester 
Co.  V.  Iowa  Hardware  Co.  29:  272,  122  N. 
W.  951,  146  Iowa,   172. 

57.  Exemplary  damages  may  be  recov- 
ered for  suing  out  an  attachment  merely 
because  the  debtor  does  not  pay  money  due 
when  demanded  without  any  belief  that  he 
has  any  purpose  of  defrauding  his  creditor. 
International  Harvester  Co.  v.  Iowa  Hard- 
ware Co.  29:  272,  122  N.  W.  951,  146  Iowa, 
172.  (Annotated) 

58.  The  allowance  of  $500  as  exemplary 
damages  and  $300  as  counsel  fees  for  the 
suing  out  of  an  attachment  to  compel  pay- 
ment of  $600  which  had  matured  on  notes 
aggregating  $2,400,  without  any  reason  to 
believe  that  the  debtor  intended  to  defraud 
the  creditor,  will  not  be  interfered  with  on 
appeal,  although  the  actual  damages  are 
only  $40.  International  Harvester  Co.  v. 
Iowa  Hardware  Co.  29:  272,  122  N.  W.  951, 
146  Iowa,  172. 

59.  Punitive  damages  cannot  be  awarded 
for  detaining  and  searching  one  suspected  of 
shoplifting,  unless  the  wrong  was  inflicted 
maliciously  or  wantonly,  or  with  circum- 
stances of  contumely  and  indignity.  Bern- 
heimer  v.  Becker,  3:  221,  62  Atl.  526,  102 
Md.  250. 

60.  A  showing  of  illness  resulting  from 
unnecessarily  rough  treatment  under  a  war- 
rant of  arrest,  of  a  frail,  sick  man,  and 
his  confinement  in  a  cold  jail,  will  sustain 
a  recovery  of  exemplary  damages,  although 
the  extent  of  the  actual  damage  in  money 
is  not  shown.  McConathy  v.  Deck,  4:  358, 
83  Pac.  135,  34  Colo.  461. 

Removal    of    telephone    or    failure    to 
answer  call. 

61.  The  malicious  or  wilful  removal  of  a 
subscriber's  telephone  in  wanton  or  reck- 
less disregard  of  his  rights  may  carry  puni- 
tive damages.  Carmichael  v.  Southern  Bell 
Teleph.  &  Teleg.  Co.  39:  651,  72  S.  E.  619, 
157  N.  C.  21.  (Annotated) 

62.  Punitive  damages  cannot  be  assessed 
against  a  telephone  company  for  mere  neg- 
lect to  answer  the  call  of  the  subscriber, 
in  the  absence  of  anything  to  show  inten- 
tional wrong  or  wilfulness,  or  conscious  in- 
difference to  consequences,  from  which 
malice  may  be  inferred.  Southern  Teleph. 
Co.  V.  King,  39:  402,  146  S.  W.  489,  103 
Ark.  160. 

Personal  injuries  or  death. 
Prejudicial  error   in  refusal   of  instruction 

as  to,  see  Appeal  and  Error,  1414. 
Due   process   of   law   in   statute   as   to,    see 

Constitutional  Law,  561. 
Digest   1-52  L.R.A.(N.S.) 


Presumption  of  gross  negligence  from  in- 
jury to  passenger  entitling  him  to,  see 
Evidence,  351. 

Sufficiency  of  evidence  to  entitle  one  to, 
see  Evidence,  2495. 

Question  for  jury  as  to,  see  Trial,  107. 

63.  Exemplary  damages  may  be  award- 
ed in  case  a  motorman  in  charge  of  an  elec- 
tric car,  seeing  a  horse  in  charge  of  a  lady, 
plunging  and  rearing  near  the  track,  and 
thereby  placing  her  in  obvious  peril,  takes 
no  action  to  lessen  the  speed  of  the  car  un- 
til it  is  too  late  to  prevent  a  collision. 
Cleveland  v.  South  Covington  &  C.  Street 
R.  Co.  11:  853,  100  S.  W.  283,  30  Ky.  L.  Rep. 
1072. 

64.  Punitive  damages  may  be  awarded 
against  a  railroad  company  for  killing  a 
person  at  a  railroad  crossing  which  was 
manifestly  dangerous,  if  it  had  failed  to 
comply  with  warnings  by  the  public  offi- 
cials to  make  it  safe.  Thompson  v.  Sea- 
board A.  L.  R.  Co.  20:  426,  62  S.  E.  396,  81 
S.  C.  333. 

65.  Exemplary  damages  may  be  awarded 
against  one  who  places  a  patient  applying 
for  dental  work  in  the  hands  of  an  unskilled 
employee  for  treatment,  which  results  in  the 
needless  fracture  of  the  jawbone.  Mande- 
ville  v.  Courtright,  6:  1003,  142  Fed.  97,  73 
C.  C.  A.  321. 

66.  Punitive  damages  may  be  allowed  for 
the  killing  of  a  railroad  fireman  by  the 
collision  with  his  train,  which  is  a  regular 
train  on  time,  of  a  special,  which  is  bound 
to  keep  out  of  the  way  of  the  regular,  but 
fails  to  take  the  proper  sidetrack  to  clear 
the  way  for  it,  since  the  trainmen  are 
bound  to  keep  in  mind  the  schedule  of 
regular  trains,  and  their  failure  to  do  so 
will  cause  a  resulting  collision  to  be  re- 
garded as  due  to  recklessness.  Chesapeake 
&  0.  R.  Co.  V.  Johns,  50:  853,  159  S.  W. 
822,  155  Ky.  264. 

Injury  to  real  property. 

67.  A  corporation  may  be  liable  for  puni- 
tive damages  where,  to  save  expense,  its 
superintendent  directs  its  servants  to  se 
unnecessarily  large  charges  of  explosives  in 
blasting,  to  the  injury  of  neighboring  prop- 
erty, in  wanton  disregard  of  the  rights  of 
the  owner,  and  against  his  protest.  Funk 
V.  Kerbaugh,  22:  296,  70  Atl.  953,  222  Pa. 
18. 

Inducing   breach    of   contract. 

68.  Causing  breach  of  another's  contract 
to  furnish  supplies  merely  to  secure  the 
opportunity  to  furnish  them  one's  self  is  not 
such  malice  as  will  sustain  an  award  of 
exemplary  damages  in  favor  of  the  con- 
sumer. Knickerbocker  Ice  Co.  v.  Gardiner 
Dairy  Co.  16:  746,  69  Atl.  405,  107  Md.  556. 

b.    For    act    of    servant;    carrier's    lia- 
hility. 

(See   also    same   heading   in   Digest   L.R.A. 
1-10.) 

As  question  for   jury,  see  Trial.,   108. 
See  also  supra,  65. 


832 


DAMAGES,  II.  b. 


69.  Exemplary  damages  are  not  recov- 
erable against  a  principal  in  an  action  based 
on  the  act  of  an  agent,  where  there  is  a 
total  absence  of  evidence  showing  that  the 
principal  participated  in  the  wrongful  act, 
or  that  he  expressly  or  impliedly  authorized 
or  approved  it,  either  before  or  after  its 
commission.  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Newburn,  30:  432,  110  Pac.  1065,  27  Okla. 
9. 

70.  Exemplary  damages  may  be  allowed 
against  a  railroad  company  for  the  wanton 
act  of  its  fireman  in  throwing  live  embers 
from  the  engine  onto  a  person  standing  at 
a  private  crossing.  I>ouisville  &  N.  R.  Co.- 
V.  Eaden,  6:  581,  93  S.  W.  7,  122  Ky.  818. 

71.  Punitive  damages  may  be  allowed 
against  a  gas  company  whose  servants,  in 
doing  work  in  a  house,  cut  the  connections 
of  a  rival  company,  and  throw  its  meter 
into  the  ash  barrel,  merely  to  render  their 
own  work  more  convenient  and  less  ex- 
pensive, thereby  depriving  the  consumer  of 
heat  necessary  to  render  his  house  habitable. 
Kentucky  Heating  Co.  v.  Hood,  22:  588, 
118  S.  W.  337,  133  Ky.  383. 

liiability  of  carriers  generally. 

72.  Where  the  employees  of  a  carrier 
wilfully  neglect  and  refuse  to  give  a  pas- 
senger information  requested  as  to  a  change 
of  trains  necessary  to  reach  her  destination, 
such  passenger  may  recover  exemplary 
■damages.  Lilly  v.  St.  Louis  &  S.  F.  R.  Co. 
39:  663,  122  Pac.  502,  31  Okla.  521. 

73.  Punitive  damages  may  be  recovered 
by  a  passenger  who  was  not  notified  by  a 
sleeping  car  company  of  her  arrival  at  her 
destination,  and  was  put  off  the  train  in  a 
manner  attended  with  circumstances  of  ag- 
gravation; and  a  verdict  of  $500  therefor 
is  neither  oppressive,  nor  excessive.  Pull- 
man Co.  V.  Lutz,  14:  907,  45  So.  675,  154 
Ala.  517. 

74.  Punitive  damages  may  be  allowed  for 
the  wanton  failure  of  a  railroad  company 
to  furnish  a  passenger  with  sleeping  car  ac- 
commodations which  it  has  agreed  by  tele- 
graph to  do  upon  his  purchasing  transpor- 
tation tickets.  Speaks  v.  Southern  R.  Co. 
38:  ^58,   73   S.  E.  625,  90   S.  C.  358. 

(Annotated) 

75.  A  carrier  is  not  liable  in  punitive 
damages  to  a  passenger  on  a  mixed  train 
for  laying  the  train  off  over  night  because 
of  traffic  conditions,  instead  of  running  it 
to  his  destination,  according  to  schedule,  to 
his  inconvenience,  where  there  is  nothing  to 
show  wilful  disregard  of  his  rights  or  rude- 
ness or  disrespect,  either  in  receiving  him 
as  a  passenger  or  in  laving  off  the  toain. 
Black  V.  Charleston  &  W.  C.  R.  Co.  31: 
1184,  69  S.  E.  230,  87  S.  C.  241. 
Putting    ^vhite    person    into    oar    for 

colored  persons. 

76.  Punitive  damages  cannot  be  recov- 
ered by  a  white  person  required  to  enter  a 
car  for  colored  people,  in  the  absence  of  in- 
sult. Southern  R.  Co.  v.  Thurman,  2:  1108, 
90  S.  W.  240,  121  Ky.  716. 

77.  For  wrongfully  placing  a  white  pas- 
senger in  a  car  set  apart  for  colored  per- 
sons, to  her  mortification  and  humiliation, 
Digest   1-52   I..R.A.(N.S.) 


so  that  actual  damages  might  be  awarded, 
punitive  damages  may  be  awarded  although 
actual  damages  are  not  awarded.  Louisville 
&  N.  R.  Co.  V.  Ritchel,  41 :  958,  147  S.  W. 
411,  148  Ky.  701. 
Assault  on  passenger. 
See  also  infra,  90. 

78.  Section  6562,  North  I>akota,  Rev. 
Codes  1905,  authorizing  the  recovery  of 
punitive  damages  by  way  of  punishment, 
and  their  inclusion  in  the  verdict  "when 
the  defendant  has  been  guilty  of  oppression, 
fraud,  or  malice,"  has  no  application  to  a 
common  carrier  for  an  assault  by  one  of 
its  employees,  in  the  absence  of  proof  that 
such  common  carrier  authorized,  sanctioned, 
or  ratified  the  malicious  act  of  the  em- 
ployee. Voves  V.  Great  Northern  R.  Co. 
48;  30,  143  N.  W.  760,  26  N.  D.  110. 

79.  A  common  carrier  is  not  liable  for 
punitive  damages  because  of  the  conduct 
of  an  ordinary  employee,  who,  while  dis- 
charging his  duties  in  the  course  of  his  em- 
ployment, makes  an  unwarranted  assault 
upon  a  passenger  then  in  the  safe-keeping 
and  under  the  protection  of  the  carrier. 
Voves  V.  Great  Northern  R.  Co.  48:  30,  143 
N.  W.  760,  26  N.  D.  110.  (Annotated) 

80.  A  street  car  company  is  liable  not 
only  for  actual  and  compensatory  damages, 
but  for  punitive  damages  also,  if  its  con- 
ductor wilfully  refuses  to  honor  a  valid 
transfer  under  circumstances  of  insult  and 
aggravation,  followed  by  an  assault  •  upon 
the  passenger.  Little  Rock  R.  &  E.  Co.  v. 
Goerner,  7:97,  95  S.  W.  1007,  80  Ark.   158. 

81.  For  injuries  inflicted  upon  a  pas- 
senger by  pushing  another  against  him  in 
committing  a  malicious  assault,  punitive 
damages  may  be  allowed  within  the  amount 
claimed  in  the  complaint.  Chesapeake  &  O. 
R.  Co.  v.  Robinett,  45:  433,  152  S.  W.  976, 
151  Ky.  778. 

Arrest  of  passenger. 

82.  Exemplary  or  punitive  damages  may 
be  imposed  upon  a  railroad  company  liable 
for  the  act  of  its  train  conductor  in  unlaw- 
fully arresting  and  imprisoning  a  perscn 
on  the  train,  where  such  act  was  maliciou.-. 
wanton,  wilful,  or  reckless.  Davis  v.  Ches 
apeake  &  0.  R.  Co.  9:  993,  56  S.  E.  400,  61 
W.  Va.  246. 

Ejection. 

83.  Punitive  damages  are  recoverable 
against  a  railroad  company  for  the  forcible 
expulsion  of  a  passenger  without  justifica- 
tion or  excuse  by  the  conductor  or  other 
employees  in  charge  of  the  train.  Seaboard 
Air  line  R.  Co.  v.  O'Quin,  2:  472,  52  S.  E. 
427,   124   Ga.   357. 

84.  Exemplary  damages  may  be  awarded 
against  a  railroad  company  for  the  expul- 
sion of  a  passenger  holding  a  valid  ticket 
without  allowing  him  an  opportunity  to  ex- 
plain an  apparent  discrepancy  in  the  punch 
marks  upon  it.  Illinois  C.  R.  Co.  v.  Gorti- 
kov,  14:  464,  45  So.  363,  90  Miss.  787. 

85.  Punitive  damages  may  be  allowed 
a  passenger  who  has  been  wrongfully  ex- 
pelled from  a  railroad  train,  where  the  ex- 
pulsion is  wanton,  malicious,  or  committed 
in  a  rude  and  insulting  manner.    Ann  Arbor 


DAMAGES,  III.  a,  1. 


833 


R.   Co.   V.  Amos,  43:  587,  97  N.   E.  978,   85 
Ohio  St.  300. 

86.  Exemplary  damages  may  be  awarded 
for  wanton  and  oppressive  expulsion  of  a 
passenger  from  a  railroad  train,  in  viola- 
tion of  his  contract  rights.  Forrester  v. 
Southern  P.  Co.  48:  i,  134  Pac.  753,  136 
Pac.  705,  36  Nev.  247. 

87.  Exemplary  damages  may  be  awarded 
against  a  railroad  company  for  the  wanton 
and  oppressive  acts  of  its  train  agent,  with 
authority  to  take  up  void  tickets,  and  re- 
move passengers  from  the  train,  in  unlaw- 
fully taking  up  a  ticket  and  removing  the 
holder  from  the  train,  although  it  does  not 
direct  the  act  or  ratify  it.  Forrester  v. 
Southern  P.  Co.  48:  i,  134  Pac.  753,  136 
Pac.  705,  36  Nev.  247.  (Annotated) 

88.  Punitive  damages  may  be  awarded 
against  a  carrier  for  wrongful  expulsion  of 
a  passenger  from  a  train,  or  for  compell- 
ing him  to  pay  money  under  threat  of  ex- 
pulsion. Smith  V.  Southern  ii.  Co.  34:  708, 
70  S.  E.   1057,  88  S.   C.  421. 

89.  A  railroad  company  is  not  liable  in 
punitive  damages  for  the  act  of  its  con- 
ductor in  pushing  a  woman  passenger  down 
the  steps  of  the  car,  when  she  is  a  member 
of  a  party  which,  in  the  line  of  his  duty, 
he  is  ejecting  from  the  train,  some  of  whom 
refuse  to  go  and  are  disorderly,  where  she 
herself  is  insisting  that  she  is  being  un- 
lawfully expelled,  although  the  ejection 
proves  to  be  in  violation  of  an  agreement 
of  the  carrier's  ticket  agent  as  to  the  stop- 
ping of  the  train  at  the  place  where  they 
wish  to  get  off.  Louisville  &  N.  R.  Co.  v. 
Scott,  34:  206,  133  S.  VV.  800,  141  Ky.  538. 

90.  A  passenger  who  has  been  wrong- 
fully required  to  leave  a  car  cannot  hold 
the  carrier  liable  in  punitive  damages  be- 
cause, after  having  reached  the  ground  and 
returned  to  the  steps  of  the  car,  to  inter- 
fere in  an  altercation  between  the  conduc- 
tor and  a  fellow  passenger,  he  is  then  shoved 
by  the  conductor  against  the  door  with 
undue  violence.  Louisville  &  N.  R.  Co.  v. 
Scott,  34:  206,  133  S.  W.  800,  141  Ky.  538. 

91.  Members  of  a  party  who  are  wrong- 
fully ejected  from  a  passenger  train  can- 
not hold  the  railroad  company  liable  in 
punitive  damages  because  during  the  ejec- 
tion the  conductor  \ises  abusive  and  in- 
sulting language,  and  draws  a  pistol  and 
threatens  to  shoot  someone,  if  the  abuse 
and  threat  arc  not  directed  toward  them 
personally.  Louisville  &  N.  R.  Co.  v.  Scott, 
34:  206,  133  S.  W.  800,  141  Ky.  538. 
Failure  to  stop  at  station. 

92.  A  carrier  is  liable  for  exemplary 
damages  where  a  negligent  failure  of  its 
servants  to  discharge  a  passenger  at  desti- 
nation was  accompanied  by  insolence  and 
indifference  to  the  passenger's  rights.  Ft. 
Smith  &  W.  R,  Co.  v.  Ford,  41 :  745,  126 
Pac.  745,  34  Okla.  575.  (Annotated) 

93.  The  refusal  of  a  railroad  company 
to  back  a  train  which  has  started  from 
one  station  to  another,  to  permit  a  passen- 
ger for  the  former,  who  has  been  negli- 
gently carried  past,  to  get  off,  is  not  such 
wilfulness  as  will  justify  an  award  of 
punitive  damages  against  it,  where,  because 
Digest  1-52  L.R.A.(N.S.) 


of  necessary  statutory  precautions,  it  would 
entail  considerable  delay,  since  the  rights 
of  otlier  passengers  required  the  train  to 
proceed  on  its  journey.  Yazoo  &  M.  V.  R. 
Co.  V.  Ilardie,  34:  740,  55  So.  42,  100  Miss. 
132. 

94.  The  question  whether  or  not  puni- 
tive damages  can  be  assessed  against  a  rail- 
road company  for  carrying  a  passenger  past 
her  station  cannot  be  affected  by  the  facts 
that  she  was  in  impaired  health,  was  bound 
for  a  hospital,  and  upon  being  returned' to 
the  station  later  in  the  day,  was  compelled 
to  get  off  in  the  rain,  which  aggravated 
her  condition  of  ill  health.  Yazoo  &  M.  V. 
R.  Co.  v.  Hardie,  34:  740,  55  So.  42,  100 
Miss.    132. 

95.  A  railroad  company  is  not  liable 
for  punitive  damages  merely  for  failure  to 
notify  a  passenger  of  the  train's  arrival 
at  his  station,  and  refusal  to  return  with 
him  when  the  fact  that  he  has  been  car- 
ried past  is  discovered,  where  the  failure 
is  the  result  of  mere  neglect.  Yazoo  &  M. 
V.  R.  Co.  v.  Hardie,  34:  740,  55  So.  42,  100 
Miss.   132. 

96.  Punitive  damages  may  be  awarded 
against  a  railroad  company  which  refuses 
to  stop  a  train  upon  request  at  a  flag  sta- 
tion at  which  a  passenger  is  entitled  to 
alight.  Mobile  &  0.  R.  Co.  v.  Moreland,  46: 
52,  61  So.  424,  104  Miss.  312. 

97.  Refusal  of  a  conductor  to  listen  to 
the  explanation  of  a  passenger  on  a  through 
train  as  to  a  special  contract  that  he  should 
be  let  off  at  a  way  station  where  the  train 
was  not  scheduled  to  stop,  and  compelling 
him  to  leave  the  train  at  the  last  regular 
stop  befoi-e  the  station  is  reached,  is  evi- 
dence of  wilfulness  and  wantonness  which 
will  justify  the  assessment  of  punitive  dam- 
ages against  the  railroad  company.  Illi- 
nois C.  R.  Co.  v.  Reid,  17:  344,  46  So.  146, 
93  Miss.  458.  (Annotated) 
As  to  baggage. 

Instructions  as  to,  see  Trial,  1005. 

98.  Punitive  damages  may  be  allowed 
against  a  carrier  for  wilful  and  wanton 
failure  to  transport  baggage  with  reasonable 
despatch.  Webb  v.  Atlantic  Coast  Line  R. 
Co.  9:  1218,  56  S.  E.  954,  76  S.  C.  193. 

(Annotated) 

99.  Punitive  damages  may  be  awarded 
against  a  street  car  company  for  refusal  to 
permit  a  passenger  to  take  into  the  car  as 
personal  baggage,  a  small  piece  of  ice 
wrapped  so  as  to  prevent  dripping,  which 
is  needed  by  a  sick  person,  notice  of  which 
has  been  given  to  the  conductor.  Jlclntosh 
V.  Augusta  &  A.  R.  Co.  30:  889,  69  S.  E. 
159,  87   S.  C.   181. 

III.  Measure  of  compensation. 

a.  On  contracts. 

1.  Generally. 

(See   also   same   heading   in  Digest   L.R.A. 
1-70.) 

For   breach   of  contract  as  to  telegram   or 
telephone    message,    see    infra,    III.    b, 
III.  o,  2,  b. 
53 


834 


DAMAGES,  III.  a,  1. 


Loss  of  profits  from  breach,  see  infra,  III. 

p.  2. 
Mental  anguish  for,  see  infra,  G23-629. 
Punitive  damages,  see  supra,  29. 
Election  to  seek  injunction  or  damages  for 

breach    of    contract,    see    Election    of 

Remedies,  13. 
Evidence  as  to,  see  Evidence,  1697. 
Sufficiency    of   proof   as   to,    see    Evidence, 

2272. 
Interest  on,  see  Interest,  17,  53. 
Allegations  as  to,  see  Pleading,  II.  f. 
In  action  on  replevin  bond,  see  Replevin, 

30. 
For  breach  of  contract  to  give  security,  see 

Specific  Pekfobmance,  5. 
Right    to,    for    nonacceptance,    nonpayment 

and  protest,  see  Bills  and  Notes,  IV. 

d. 

100.  The  measure  of  the  damages  result- 
ing from  a  breach  of  an  implied  contract  to 
use  reasonable  care  that  the  person  recom- 
mended should  answer  the  description  of  a 
good  stock  broker,  arising  from  a  letter  in 
response  to  an  offer  made  by  a  newspaper 
to  answer  inquiries  from  readers  desiring 
financial  advice,  asking  for  a  safe  invest- 
ment for  a  certain  sum,  and  also  for  the 
name  of  a  good  stock  broker,  is  not  limited 
to  the  sum  named,  but  is  the  sum  actually 
sent  to  and  misappropriated  by  the  broker. 
De  La  Bere  v.  Pearson,  Ltd.,  1  B.  R.  C.  21, 
[1908]  1  K.  B.  280.  Also  Reported  in  77 
L.  J.  K.  B.  N.  S.  380,  98  L.  T.  N.  S.  71, 
24  Times  L.  R.  120. 

101.  The  damages  sustained  by  a  bank  by 
reason  of  the  depositor's  neglect  to  examine 
his  bank  book  and  vouchers  with  reasonable 
care  and  diligence  are  susceptible  of  proof 
and  measurement  as  in  any  other  case  of 
breach  of  duty  imposed  by  contract.  Nation- 
al Dredging  Co.  v.  President,  etc.,  of  Farm- 
ers' Bank,  i6:  593,  69  Atl.  607,  6  Penn. 
(Del.)    580. 

102.  In  an  action  for  the  breach  of  a 
continuing  covenant  contained  in  an  instru- 
ment not  under  seal,  the  recovery  will  be 
limited  to  damages  sustained  during  the 
six  years  preceding  the  filing  of  the  suit. 
Atlanta,  K.  &  N.  R.  Co.  v.  McKinney,  6:  436, 
53  S.  E.  701,  124  Ga.  929. 

103.  Where  a  contractor  has  been  de- 
layed, but  not  ultimately  defeated,  in  the 
collection  of  an  amount  due  him  on  a  con- 
tract for  the  construction  of  a  drain,  ow- 
ing to  the  failure  of  a  township  trustee  to 
proceed  as  required  by  law  for  the  collec- 
tion of  the  sum  from  the  property  owners, 
the  measure  of  damages  in  an  action  against 
such  trustee  is  the  interest  on  the  amount 
for  the  time  payment  has  been  delayed. 
Hupe  v.  Sommer,  43:  565,  129  Pac.  136,  88 
Kan.  561. 

104.  The  reasonable  value  which  may  be 
recovered  for  printing  done  for  a  county 
and  accepted  by  it  without  a  valid  contract, 
and  which  resulted  in  a  financial  benefit  to 
the  county  sufficient  to  pay  therefor,  is  the 
actual  cost  of  rendering  the  services  and 
furnishing  the  material  necessary,  including 
all  expenses  incurred,  but  excluding  profits, 
Digest  1-52  L.R.A.(N.S.) 


and  not  exceeding  the  legal  rate.  Miles  v. 
Holt  County,  27:  11 30,  125  N.  W.  527,  86 
Neb.  238. 

105.  Damages  recoverable  from  a  bidder 
for  public  work  upon  his  refusal  to  comply 
with  his  contract  cannot  be  fixed  at  the 
diflerence  between  his  bid  and  the  price  at 
which  the  contract  is  awarded  to  a  nonbid- 
der,  where  the  authorities  have  no  power  to 
award  the  contract  to  the  latter.  Cedar 
Rapids  Lumber  Co.  v.  Fisher,  4:  177,  105  N. 
W.   595,   129   Iowa,   332. 

106.  For  breach  of  contract  to  take  a 
livery  rig  for  a  certain  number  of  days 
the  contract  price  is  not  the  proper  measure 
of  damages.  Kilpatrick  v.  Inman,  26:  188, 
105   Pac.    1080,  46   Colo.   514. 

107.  The  damages  for  breach  of  contract 
to  deliver  corporate  stock  to  the  purchaser 
thereof  are  the  difference  between  the  con- 
tract price  and  the  highest  market  price 
which  the  stock  attains  during  such  reason- 
able time  after  that  set  for  delivery  as 
would  enable  the  purchaser  to  secure  the 
stock  elsewhere.  Vos  v.  Child,  H.  &  Co. 
43:  368,  137  N.  W.  209,  171  Mich.  595. 

(Annotated) 

108.  The  measure  of  damages  to  which  a 
stockholder  whose  portion  of  an  increase  of 
stock  is  sold  to  a  stranger  against  his  pro- 
test is  entitled,  is  the  difference  between 
the  sale  price  fixed  by  the  corporation  and 
the  market  value  of  the  stock.  Stokes  v. 
Continental  Trust  Co.  12:  969,  78  N.  E.  1090, 
18G  N.  Y.  285. 

109.  The  damages  for  revocation  of  a  con- 
tract to  permit  an  advertisement  to  run  in 
a  periodical  for  a  year  is  prima  facie  the 
contract  price  for  the  service.  Ware  Bros. 
Co.  v.  Cortland  Cart  &  Carriage  Co.  22:  272, 
85  N.  E.  666,  192  N.  Y.  439.         (Annotated) 

110.  One  failing  to  perform  his  contract  to 
erect  in  an  office  building  an  elevator  .vhich 
will  work  at  its  rated  capacity  is  not  lia- 
ble to  the  owner  of  the  building  for  loss 
of  rents  during  the  time  the  unsatisfactory 
service  continues;  for,  even  if  such  damages 
could  be  regarded  as  having  been  within  the 
contemplation  of  the  parties,  they  are  too 
uncertain  and  contingent  to  form  a  basis 
for  recovery.  Winslow  Elevator  &  Mach. 
Co.  v.  Hoffman,  17:  1130,  69  Atl.  394,  107 
Md.  621.  (Annotated) 
Agreement  to   give  legacy. 

111.  Only  the  reasonable  value  of  the 
services  can  be  recovered  under  an  agree- 
ment ia  consideration  of  past  services,  to 
give  the  promisee  a  legacy  of  a  specified 
amount.  Murtha  v.  Donohoo,  41:  246,  136 
N.  W.  158,  149  Wis.  483.  (Annotated) 
Contract   to  form  partnership. 

112.  Actual  losses  in  the  form  of  expenses 
incurred  and  time  lost  may  be  recovered  for 
breach  of  a  contract  to  form  a  partnership 
and  establish  a  business  in  a  distant  and 
sparsely  settled  country.  Webster  v.  Beau, 
51:  81,  137  Pac.  1013,  77  Wash.  444. 

( Annotated ) 
Telephone  contract. 
Punitive  damages,  see  supra,  61,  62. 
For  breach  of  contract  as  to  telephone  mes- 
sage, see  infra.  III.  2,  b. 


DAMAGES,  III.  a,  2. 


835 


Evidence  on  question  of  damages,  see  Evi- 
dence, 1704. 

113.  The  damages  recoverable  by  a  sub- 
scriber whose  telephone  is  wrongfully  re- 
moved after  he  has  paid  the  rental  are  not 
limited,  even  in  an  action  for  breach  of  con- 
tract, to  the  amoimt  of  rent  wrongfully  ex- 
acted, but  may  include  compensation  for 
the  inconvenience  to  which  he  is  put  by 
breach  of  the  contract.  Carmichael  v. 
Southern  Eell  Teleg.  &  Teleph.  Co.  39:  651, 
72  S.  E.  619,  157  N.  C.  21.  (Annotated) 
Insurance  contract. 

Extent   of   recovery   on    policy,    see   Insur- 
ance, VI.  c. 
See  also  infra,   304,   305.  /?  <tr   i». 

114.  The  measure  of  damages  for  wrong- 
ful cancelation,  for  alleged  nonpayment  of 
preniiums,  of  an  assessment  insurance  pol- 
icy upon  the  life  of  one  who  at  the  time  of 
cancelation  is  no  longer  an  insurable  risk, 
is  the  amount  of  the  policy,  less  cost  of  car- 
rying it  to  maturity  had  it  remained  in 
force,  all  amounts  entering  into  the  cal- 
culation to  be  calculated  upon  the  basis  of 
the  legal  rate  of  interest  as  of  the  date  of 
cancelation.  Mutual  Reserve  Fund  L. 
Asso.  v.  Ferrenbach,  7:  1163,  144  Fed.  342, 
75  C.  C.  A.  304.  .  (Annotated) 

115.  The  amount  of  premiums  paid,  with 
interest,  is  not  the  measure  of  damages  for 
the  wrongful  cancelation  for  alleged  non- 
payment of  premiums  of  a  life-insurance 
policy  issued  on  the  assessment  plan.  Mu- 
tual Reserve  Fund  L.  Asso.  v.  Ferrenbach, 
7:  1 163,  144  Fed.  342,  75  C.  C.  A.  304. 

(Annotated) 
Building  contract. 

116.  The  measure  of  damages  in  case  of 
substantial  performance  only,  of  a  building 
contract,  is  the  reasonable  cost  of  remedy- 
ing the  defects  which  can  be  practicably 
remedied  so  as  to  make  the  structure  ex- 
actly conform  to  the  agreement,  and  the 
difference  between  the  value  of  the  structure 
so  completed  and  one  like  the  building 
agreed  upon.  Foeller  v.  Heintz,  24:  327, 
118  N.  W.  543,   137  Wis.  109. 

117.  In  an  action  of  quantum  meruit  for 
the  value  of  labor  and  materials  furnished 
upon  a  building  contract  upon  the  owner's 
wrongful  termination  of  it,  the  rule  for 
measuring  damages  is  the  value  of  the  la- 
bor and  materials  furnished;  and  the  rule 
allowing  the  total  of  what  the  contractor 
■would  have  received  under  the  contract,  less 
what  it  cost  to  complete  the  building,  de- 
ducting any  payments  already  made,  is  not 
applicable.  Valente  v.  Weinberg,  13:  448, 
67  Atl.  369,  80  Conn.  134. 

118.  The  measure  of  damages  for  defects 
in  the  construction  work  of  buildings  sub- 
stantially completed  according  to  the  plans 
and  specifications  is  the  cost  of  repairing 
the  defects,  and  not  the  difference  in  value 
of  the  building  as  constructed  and  what  it 
would  have  been  if  constructed  strictly  ac- 
cording to  the  plans  and  specifications. 
Graves  v.  Allert  &  Fuess,  39:  591,  142  S. 
W.  869,  104  Tex.  614.  (Annotated) 

119.  That  the  erection  of  a  building  on 
a  lot  does  not  increase  the  value  of  the 
Digest  1-52  L.R.A.(N.S.) 


property  to  the  extent  of  the  cost  of  the 
building  will  not  prevent  the  contractor 
from  holding  the  owner  responsible  for  such 
cost,  in  case  the  parties  do  not  agree 
as  to  the  contract  price,  so  that  the  amount 
to  be  paid  is  left  to  implication  of  lav.. 
Vickery  v.  Ritchie,  26:  810,  88  N.  E.  835, 
202  Mass.  247. 

Not  to  engage  in  business. 
Stipulated  damages,  see  infra,  231. 

120.  The  measure  of  damages  for  breach 
of  a  contract  not  to  compete  with  one  pur- 
chasing a  business  and  good  will  is  the  in- 
jury which  the  buyer  has  sustained  which 
may  include  loss  of  profits  and  diminution 
in  value  of  the  property  purchased.  Brad- 
ford V.  Montgomery  Furniture  Co.  9:  979, 
92  S.  W.  1104,  115  Tenn.  610. 

To  supply  ivater. 

121.  The  damages  for  breach  of  contract 
to  supply  water  for  irrigating  unbroken 
prairie  land  is  tlie  difference  in  the  rental 
value  of  the  land  with  and  without  water, 
and  not  the  value  of  what  might  have  been 
raised  on  the  land  had  water  been  supplied. 
Wade  V.  Belmont  Irrigating  Canal  &  W. 
P.  Co.  31:  743,  128  N.  W.  514,  87  Neb.  732. 

( Annotated ) 

122.  The  measure  of  damages  for  breach 
of  contract  to  furnish  water  to  irrigate 
growing  crops  so  that  they  become  worth- 
less is  the  value  of  the  crops  on  the  market 
at  maturity,  less  the  cost  necessary  to  put 
them  in  condition  for  and  upon  the  closest 
market.  Smith  v.  Hicks,  19:  938,  98  Pac. 
138,    14   N.   M.   560.  (Annotated) 

2.  On  honds. 

(See  also  sam,e  heading  in  Digest  L.R.A. 
1-70.) 

Duty  to  give  bond  to  dissolve  wrongful  at- 
tachment and  minimize  damages,  see 
supra,  29 .» 

Punitive  damages,  see  supra,  30,  31. 

Presumption  as  to  damages  on  bond,  see 
Evidence,  656. 

Right  to  damages  on  injunction  bond,  see 
Injunction,  432-434,  436-440. 

123.  The  penalty  named  in  a  marshal's 
bond  is  not  the  limit  of  the  surety's  liabil- 
ity under  a  statute  providing  that  the  re- 
covery against  principal  and  surety  for  the 
defaults  of  the  marshal  shall  not  be  limited 
to  the  amount  of  the  penalty  named  in  the 
bond.  Growbarger  v.  United  States  Fidel- 
ity &  G.  Co.  11:  758,  102  S.  W.  873,  126  Ky. 
118. 

124.  The  liability  of  a  surety  on  a  liquor 
bond  is  limited  to  the  penalty  specified 
therein,  although  the  statute  provides  that 
the  principal  and  sureties  shall  be  jointly 
and  severally  liable  with  the  person  selling 
the  liquor,  and  that  plaintiff  shall  have  a 
right  to  recover  actual  and  exemplary  dam- 
ages. Merrinane  v.  Miller,  25:  585,  118  N. 
W.  11,  122  N.  W.  82,  1.57  Mich.  279. 


836 


DAMAGES,  III.  a,  3. 


3.  As  to  real  property. 

(See  also   same  heading   in   Digest   L.R.A. 
1-10.) 

Stipulated  damages,  see  infra,  219. 
For  fraud  in  sale  or  exchange  of,  see  infra, 
325-329. 

125.  Upon  failure  of  a  party  to  an  ex- 
change of  lands  to  comply  with  his  agree- 
ment to  construct  buildings  on  the  property 
conveyed  by  him,  the  other  party  is  entitled 
to  recover  as  damages  the  value  of  the  buikl- 
ings  which  were  to  be  erected,  with  interest. 
Braddy  v.  Elliott,  i6:  1121,  60  S.  E.  507, 
146  N.  C.  578. 

Contract  to  devise  lands. 

126.  The  cause  of  action  for  breach  of 
contract  to  devise  land  in  consideration  of 
services  rendered  arises  upon  breach,  and 
recovery  may  be  had  for  the  value  of  all 
the  services,  although  part  were  rendered 
beyond  the  statutory  limitation  period 
prior  to  the  breach.  Goodloe  v.  Goodloe, 
6:  703,  92  S.  W.  767,  116  Tenn.  252. 

( Annotated ) 
Contract  to  convey. 
Liquidated  damages,  see  infra,  217,  218. 
Admissibility  of  evidence  on  question  of,  see 
Evidence,  787. 

127.  The  true  measure  of  damages  arising 
from  the  refusal  of  a  purclmser  of  land 
under  an  executory  contract  of  sale  to  ])er- 
form  his  agreement  is  tlio  diflTerence  between 
the  contract  price  ana  the  market  value  of 
the  land  at  the  time  of  the  breach.  Cow- 
drey  V.  Greenlee.  8:  137,  55  S.  E.  918,  126  Ga. 
786. 

128.  The  measure  of  damages  for  the 
breach  by  a  vendor  of  an  executory  contract 
for  the  conveyance  of  real  estate,  where  the 
breach  is  caused  either  by  the  refusal  or  the 
inability  of  the  vendor,  acting  in  good  faith, 
is  the  difference  between  the  value  of  the 
land  at  the  time  of  the  breac^i.  and  the  con- 
tract price;  and,  in  addition,  the  purchaser 
may  recover  an  amount  advanced  upon  the 
contract  price.  Beck  v.  Staats,  i6:  768,  114 
N.    VV.    633,   80   Neb.   482.  (Annotated) 

129.  The  measure  of  damages  in  an  ac- 
tion by  a  grantee  whose  unrecorded  title 
has  been  destroyed  by  a  subsequent  con- 
veyance by  the  original  grantor  of  the  same 
land  to  an  innocent  purchaser,  and  the 
recording  of  the  subsequent  deed,  is  the 
value  of  the  land  at  the  time  he  lost  title 
thereto,  less  the  taxes  thereon  and  the 
amount  received  by  him  from  the  second 
grantee  for  a  deed  of  the  land  executed 
subsequent  to  the  loss  of  title,  but  prior 
to  the  bringing  of  the  action  for  such  loss. 
Hilligas  V.  Kuns,  26:  284,  124  N.  W.  925, 
86  Neb.  68. 

130.  Where  one  who  has  made  a  parol 
contract  to  convey  real  estate  has  received 
the  consideration  for  his  promise,  the  value 
of  the  land  may  be  given  to  the  other  con- 
tracting party  as  damages  for  its  breach. 
Doty  V.  Doty,  2:  713,  80  S.  VV.  803,  118  Ky. 
204.  (Annotated) 
Digest   1-52  I..R.A.(N.S.) 


Breach  of  covenants. 

Nominal  damages,  see  supra,  1. 
Loss  of  profits,  see  infra,  689. 
Mitigation  of  damages,  see  infra,  713. 
See  also   supra,   102;    infra,   145-150,   708, 
709. 

131.  The  rental  value  of  the  property  dur- 
ing the  time  the  purchaser  is  kept  out  of 
possession  is  the  measure  of  damages  for 
breach  of  covenant  in  a  deed  of  real  es- 
tate, consisting  of  an  outstanding  lease. 
Browne    v.    Taylor,    4:  309,    88    S.    W.    933, 

115  Tenn.  1. 

132.  The  measure  of  damages  for  breach 
of  covenant  in  a  deed  of  real  estate,  con- 
sisting of  an  outstanding  lease  which  pre- 
vents the  grantee  from  obtaining  immediate 
possession  of  the  property,  will  not  include 
the  special  damages  resulting  from  inabil- 
ity to  make  a  contemplated  subdivision  of 
the  property,  although  the  grantor  had 
knowledge  of  such  intended  use  of  the 
property,  where  the  subdivision  could  not 
have  been  perfected  before  the  time  for  the 
expiration  of  the  lease  had  possession  been 
secured,  because  the  connecting  streets  had 
not  been  opened  to  the  property.  Browne 
V.  Taylor,  4:  309,  88  S.  W.  933,  115  Tenn. 
1. 

133.  The  damages  for  a  breach  of  war- 
ranty in  the  sale  of  real  estate  by  one  hav- 
ing notice  that  the  purchaser  desires  im- 
mediate possession,  which  consists  of  an  un- 
expired lease  with  tenant  in  possession,  will 
not  include  the  loss  occasioned  by  the  pre- 
mature dismantling  of  the  power  plant  of 
his  factory  by  the  purchaser,  which  he  in- 
tends to  install  on  the  property  purchased, 
if  the  vendor  had  no  notice  that  he  intended 
to  effect  such  dismantling  until  he  had  se- 
cured possession.  Beutel  v.  American  Mach. 
Co.  35:  779,  137  S.  W.  799,  144  Ky.  57. 

( Annotated ) 

134.  The  measure  of  damages  for  misrep- 
resentation, in  the  sale  of  a  parcel  of  land, 
of  the  existence  of  a  public  alley,  where  a 
covenant  of  the  existence  of  a  private  right 
of  way  is  implied  from  the  conveyance,  is 
the  difference  between  the  value  of  the 
property  with  the  private  right  of  way  and 
what  it  would  be  had  the  public  alley  ex- 
isted. Talbert  v.  Mason,  14:  878,  113  N,  W. 
918,  136  Iowa,  373. 

135.  The  ordinary  measure  of  damages  on 
breach  of  the  covenants  of  a  warranty  deed 
is  the  consideration  paid,  with  interest,  to 
gether  with  costs  and  expenses,  including 
an  attorney's  fee,  reasonably  and  in  good 
faith  incurred  in  defending  title  and  resist- 
ing the  eviction.     Brooks  v.  Mohl,  17:  1195, 

116  N.  W.  931,  104  Minn.  404. 

136.  If  a  covenantee  who  has  been  com- 
pelled to  purchase  an  outstanding  para- 
mount title  has  been  actually  deprived  of 
part  only  of  the  subject  of  his  bargain,  the 
damages  recoverable  by  him  in  an  action 
for  breach  of  covenant  must  correspond. 
Brooks  V.  Mohl,  17:  1195,  116  N.  W.  931,  104 
Minn.  404. 

137.  If  a  covenantee  buys  an  outstanding 
paramount  title  under  which  he  has  been 
evicted,  the  measure  of  damages  recoverable 


DAMAGES,  III.  a,  3. 


837 


by  him  in  an  action  for  breach  of  covenant 
is  the  amount  paid  for  such  title,  and  inter- 
est, provided  the  sum  does  not  exceed  the 
consideration  money  and  interest.  Brooks 
V.  Mohl,  17:  1195,  116  N.  W.  931,  104  Minn. 
404. 

138.  In  an  action  for  damages  for  breach 
of  covenant  of  title,  the  grantee  cannot  re- 
cover the  value  of  improvements  made  upon 
the  premises,  where  by  statute  he  cannot  be 
deprived  of  the  land  without  payment  for 
the  improvements;  but  his  measure  of 
damages  is  the  value  of  the  outstanding 
title  at  the  time  he  obtained  his  deed,  or 
that  interest  in  the  land  of  which  he  might 
be  deprived  through  the  outstanding  title. 
Webb  V.  Wheeler,  17:  1178,  114  N.  W.  636, 
80  Neb.  438. 

130.  The  measure  of  damages  to  be  adopt- 
ed where  a  vendor  having  a  good  and  perfect 
title  conveys  the  property  with  covenants 
of  warranty  and  for  peaceable  and  quiet  pos- 
session, and  thereafter  deeds  the  same  prop- 
erty to  another  purchaser,  and  the  latter 
places  his  deed  of  record  prior  to  the  record- 
ing of  the  first  conveyance,  and  thereby  takes 
the  paramount  title  and  right  of  posses- 
sion, and  the  vendee  is  evicted,  and  sues  his 
vendor  for  damages  for  breach  of  the  cov- 
enant, is  the  same  as  in  cases  where  the  ven- 
dor has  contracted  and  agreed  to  convey, 
and  thereafter,  having  good  title  and  right 
to  convey,  declines  and  refuses  to  do  so, — 
that  is  adequate  compensation  for  the  ac- 
tual injury  sustained,  including  such  rea- 
sonable attorneys'  fees  as  were  necessarily 
expended  by  the  prior  vendee  in  an  endeavor 
to  sustain  his  title  and  right  of  possession. 
Madden  v.  Caldwell  Land  Co.  21:  332,  100 
Pac.  358,   16  Idaho,  59. 

140.  Where  a  vendor  having  a  good  and 
perfect  title  conveys  the  property  with  cov- 

'enants  of  warranty  and  for  peaceable  and 
quiet  possession,  and  thereafter  deeds  the 
same  to  another  purchaser,  and  the  latter 
places  his  deed  of  record  prior  to  the  record- 
ing of  the  first  conveyance,  and  thereby 
takes  the  paramount  title  and  right  of  pos- 
session, and  the  vendee  is  evicted  by  a  court 
of  competent  jurisdiction,  and  sues  his  ven- 
dor for  damages  for  breach  of  the  covenants, 
the  evicted  vendee  is  entitled  to  fix  the 
amount  of  damages  sustained  as  of  the  date 
on  which  he  learned  of  the  subsequent  con- 
veyance and  of  the  prior  record  of  the  latter 
deed.  Madden  v.  Caldwell  Land  Co.  21:  332, 
100  Pac.  358,  16   Idaho,  59. 

141.  In  case  of  the  failure  of  a  vendor's 
title  to  a  particular  portion  of  the  land 
granted,  the  amount  to  be  abated  from  the 
purchase  price  on  account  thereof  is  not 
ascertained  by  the  average  price  per  acre 
for  the  whole  tract,  but  is  the  relative  value 
of  the  land  lost.  Smith  v.  White,  48:  623, 
78   S.  E.  378,  71  W.  Va.  639. 

142.  One  who  has  warranted  title  to  real 
estate  is  not,  in  case  the  covenantee  is  evict- 
ed, liable  for  the  counsel  fee  expended  in  de- 
fending the  suit  which  resulted  in  the  evic- 
tion. Morgan  v.  Haley,  13:  732,  58  S.  E.  564, 
107  Va.  331. 

143.  Tlie  measure  of  damages  for  breach 
Digest   1-52  L.R.A.(N.S.) 


of  a  covenant  against  encumbranres  by  a 
permanent  irremovable  easement  is  the  dif- 
ference between  market  value  of  the  land 
subject  to  the  easement,  and  its  market  value 
if  an  easement  did  not  exist.  Smith  v. 
White,  48:  623,  78  S.  E.  378,  71  W.  Va. 
639. 

Breach   of  lessor's   contract. 
Preventing  unnecessary  amount,  see  supra, 

20-22. 
Loss  of  profits,  see  infra,  689. 
Necessity  of   recovering  damages  in   single 

action,  see  Action  or  Suit,  90. 

144.  For  breach  of  a  contract  to  lease 
lands  and  tenements  the  measure  of  dam- 
ages is  generally  the  difference  between  the 
stipulated  rent  and  the  value  of  the  use  of 
the  premises;  though,  under  special  circum- 
stances, damages  may  also  be  recovered  for 
losses  that  are  the  natural,  direct,  and 
necessary  consequence  of  the  breach,  when 
they  are  capable  of  being  estimated  by  re- 
liable data.  Moses  v.  Autuono,  20:  350,  47 
So.  925,  56  Fla.  499. 

145.  The  damages  to  be  allowed  for  breach 
by  a  lessor  of  his  implied  covenant  to  place 
the  tenant  in  possession  is  the  difference 
between  the  rent  agreed  upon  and  the  mar- 
ket value  of  the  term  plus  any  special  dam- 
ages alleged  and  proved.  Sloan  v.  Hart,  21: 
239,  63  S.  E.  1037,  150  N.  C.  269. 

146.  The  damages  recoverable  for  a  breach 
of  the  implied  covenant  in  a  lease  that  the 
demised  premises  shall  be  open  to  entry  by 
the  lessee  at  the  time  fixed  for  the  com- 
mencement of  the  term  is  the  difference  be- 
tween the  rental  value  of  the  premises  and  the 
rent  reserved  in  the  lease,  together  with 
such  special  damages  as  the  lessee  pleads 
and  proves  to  have  necessarily  resulted 
from  the  breach  of  the  agreement.  Her- 
polsheimer  v.  Christopher,  9:  1127,  111  N. 
W.  359,  76  Neb.  352. 

147.  A  tender  of  possession  of  the  prem- 
ises, made  by  a  lessor  to  the  lessee  a  short 
time  after  the  date  on  which  he  was,  by  the 
terms  of  the  lease,  entitled  thereto,  the  sit- 
uation of  the  lessee  then  being  such  as  to 
enable  him  to  accept  the  same  without  seri- 
ous inconvenience  or  detriment,  will  limit 
the  recovery  of  general  damages  for  breach 
of  the  covenant  for  quiet  enjoyment  to  the 
period  intervening  between  the  date  on 
which  possession  should  have  been  given  and 
the  date  of  the  tender.  Huntington  Easy 
Payment  Co.  v.  Parsons,  9:  1130,  57  S.  E. 
253,  62  W.  Va.  26. 

148.  The  damages  for  breach  of  covenant 
to  renew  a  lease  of  property  used  for  and 
best  adapted  to  the  purposes  of  a  hotel  is 
the  difference  between  the  agreed  rent  and 
the  value  of  the  property  for  such  use  for 
the  agreed  term.  Neal  v.  Jefferson,  41:  387, 
99  N.  E.  334,  212  Mass.  517. 

149.  The  general  rule  that,  on  the  breach 
of  the  covenant  by  the  landlord  to  make  re- 
pairs, the  measure  of  damages  is  the  dif- 
ference between  the  rental  value  of  the 
premises  as  they  were,  and  what  it  would 
have  been  if  they  had  lieen  put  and  kept  in 
repair,  will  not  preclude  a  tenant  from  re- 
covering damages  for  injury  to  goods  in  a 


838 


DAMAGES,  III.  a,  4. 


storeroom  on  the  leased  premises,  due  to 
rain  leaking  through  the  roof,  which  the 
landlord  had  agreed  and  attempted  to  re- 
pair, where  the  extent  of  the  damage  is 
shown  with  reasonable  certainty.  Miller  v. 
Sullivan,  i6:  737,  94  Pac.  266,  77  Kan.  252. 

150.  The  measure  of  damages  for  broach 
of  a  covenant  by  a  landlord  to  repair  is 
the  cost  of  the  repairs,  where  they  are 
not  expensive  in  comparison  with  the 
rent.  Young  v.  Berman,  34:  977,  131  S.  W. 
62,  96  Ark.  78. 

151.  A  landlord  who  wrongfully  evicts  a 
tenant  during;  the  term  is  liable  for  neces- 
sary loss  of  time  on  account  of  the  removal. 
Wade  V.  Herndl,  5:  855,  107  N.  VV.  4,  127 
Wis.  544. 

152.  Tlie  expense  of  removing  from  a 
building  because  of  a  wrongful  constructive 
eviction  on  the  part  of  the  landlord  cannot 
be  denied  to  the  tenant  on  the  theory  that 
a  like  expense  would  have  been  necessary 
had  the  removal  occurred  at  the  expiration 
of  the  term.  Wade  v.  Herndl,  5:  855,  107 
N.  W.  4,  127  Wis.  544. 

153.  In  determining  the  damages  to  be 
awarded  a  tenant  cropping  on  shares  who  is 
wrongfully  expelled  from  the  property  be- 
fore the  crop  is  matured,  from  the  value  of 
his  share  of  the  matured  crop  must  be  de- 
ducted such  sums  as  he  and  the  members  of 
his  family  turned  out  of  employment  could, 
by  reasonable  diligence,  have  earned  else- 
where during  the  remainder  of  the  cropping 
period,  as  well  as  the  actual  sums  which  he 
would  have  been  compelled  to  exjjend  for 
labor  and  other  items  in  bringing  the  crop 
to  maturity  and  harvesting  it,  but  not  neces- 
sarily what  it  cost  the  landlord  to  mature 
and  harvest  the  crop.  Crews  v.  Cortez, 
38:  713,  113  S.  W.  523,  102  Tex.  111. 

(Annotated) 

154.  In  an  action  for  rent  by  a  landlord 
against  his  tenant  under  a  lease,  the  meas- 
ure of  defendant's  damages,  in  a  cross  ac- 
tion for  failure  to  fence,  is  the  difference 
between  the  rental  value  of  the  premises  as 
they  were  and  what  they  would  have  been 
if  repaired  as  covenanted  in  the  lease,  tak- 
ing into  consideration  the  purposes  for 
which  they  were  to  be  used.  Partridge  v. 
Dykins,  34:  984,  113  Pac.  928,  28  Okla.  54. 
Breach  of  lessee's  contract. 

155.  TTie  measure  of  damages  for  failure 
to  take  possession  according  to  agreement 
of  a  building  which  one  agrees  to  erect  for 
anotlier's  use  and  lease  to  him  is  the  dif- 
ference between  the  amount  stipulated  in 
the  contract  as  rent,  and  the  sum  for  which 
the  premises  would  rent  to  other  parties 
during  the  stipulated  term,  plus  such  spe- 
cial damages  as  the  lessor  may  plead  and 
prove  to  have  necessarily  resulted  from 
the  breach  of  agreement.  Oldfield  v.  Angeles 
Brewing  &  Malting  Co.  35:  426,  113  Pac.  630, 
62  Wash.  260. 

156.  The  measure  of  damages  for  breach 
of  covenant  by  a  tenant  to  leave  the  prem- 
ises in  as  good  condition  as  when  he  entered 
upon  them  and  free  from  burrs,  by  permit- 
ting them  to  become  infested  with  burrs, 
is  the  difference  in  rental  value  of  the  prera- 
Digest  1-52  I..R.A.(N.S.) 


ises  in  the  condition  required  by  the  cove- 
nant and  as  surrendered,  for  such  time  as, 
by  reasonable  and  proper  methods,  the 
agreed  condition  can  be  restored,  together 
with  the  cost  of  the  additional  labor,  and 
the  expense  involved  in  effecting  that  re- 
sult, where  the  premises  are  intended  for 
rent,  and  not  for  sale.  Brown  Land  Co.  v. 
Lehman,  12:  88,  112  N.  W.  185,  134  Iowa, 
712.  (Annotated) 

157.  The  damages  for  breach  by  a  lessee 
of  its  agreement  to  carry  out  tlu;  lessor's 
contract  for  supplies  is  the  amount  of  the 
judgment  which  the  contractor  recovers 
against  the  lessor  in  an  action  for  breacii  of 
the  contract,  of  which  the  lessee  had  notice 
together  with  the  costs  and  reasonable  at- 
torneys' fees  incurred  in  resisting  the  re- 
covery,—at  least,  where  the  lessee  covenant- 
ed to  save  the  lessor  harmless  from  any 
damages  which  might  be  recovered  against 
it  because  of  the  lessee's  default,  and  the 
lessor  undertook  to  notify  the  lessee  of  any 
cause  of  action  for  which  the  lessee  would 
be  liable,  and  tender  defense  of  the  action 
to  the  lessee.  Atlantic  &  N.  C.  R.  Co.  v. 
Atlantic  &  N.  C.  Co.  23:  223,  61  S.  E.  185, 
147   N.   C.   368. 

158.  The  measure  of  damages  in  an  action 
brought  after  expiration  of  the  term  for 
breach  of  covenant  by  a  tenant  to  keep  the 
premises  in  repair  is  the  cost  of  putting 
them  into  repair.  Appleton  v.  Marx,  16: 
210,  83  N.  E.  563,  191  N.  Y.  81. 

( Annotated ) 

159.  The  damages  for  breach  by  a  tenant 
of  his  covenant  not  to  remove  straw  from 
the  premises  is  the  injury  to  the  land  by 
reason  of  the  fact  that  the  straw  was  re- 
moved, instead  of  being  consumed  on  the 
property.  Munier  v.  Zachary,  18:  572,  114 
N.  W.  525,  138  Iowa,  219. 

160.  The  measure  of  damages  recoverable 
by  a  lessor  against  the  lessee  for  hauling 
away  manure  from  a  leased  farm,  instead 
of  hauling  and  spreading  it  upon  the  farm, 
as  stipulated  in  the  lease,  is  the  reasonable 
cost  or  value  of  the  manure  spread  as  agreed. 
Sassen  v.  Haegle,  52:  1176,  147  N,  W.  445, 
125   Minn.   441. 

161.  The  measure  of  damages  for  fail- 
ure to  develop  property  held  under  an  oil 
and  gas  lease  which  provides  a  rental  of 
$50  per  year  from  each  well  from  which 
gas  is  marketed  is  that  amount  per  year 
for  each  well  from  the  time  it  ought  to 
have  been  drilled.  Howerton  v.  Kansas 
Natural  Gas  Co.  34:  34,  106  Pac.  47,  81  Kan. 
553. 

4.  Sales  of  personalty;  warranty. 

a.  Seller's  failure  to  deliver. 

(See   also  same  heading   in  Digest  L.R.A. 
1-10.) 

Preventing  unnecessary  amount,  see  supra, 

23. 
Fraud  in  making  sale,  see  infra,  330. 
Recovery  for  loss  of  profits,  see  infra,  697- 

700,  702,  703. 


DAMAGES,  III.  a,  4. 


839 


Provision  in  contract  of  sale  that  accept- 
ance shall  waive  claim  for  damages  for 
delay,  see  Co>tracts,  74. 

Premature  breach  of  contract  so  as  to  fix 
time  for  computation  of  damages,  see 
Contracts,  695. 

Acceptance  of  article  as  waiver  of,  see 
Sajle,  53,  67. 

162.  Venders  who  have  repudiated  their 
contract  to  sell  chattels  cannot  object  to 
the  computation  of  the  buyer's  damages  on 
the  theory  that  the  contract  was  executory, 
and  title  had  not  passed  to  the  buyer. 
Driggs  v.  Bus  -,  15:  654,  115  X.  W.  985,  152 
Mich.  53. 

163.  The  precise  day  when  a  contract  for 
delivery  of  malt  was  broken  is  immaterial 
upon  the  question  of  damages,  where  the 
evidence  shows  that  at  nc  time  between  the 
disputed  dates  did  the  price  go  below  that 
allowed  by  the  jury.  3Iount  Vernon  Brew- 
ing Co.  v.  Teschner,  16:  758,  69  Atl.  702, 
108  Md.   158. 

164.  A  lessor  cannot  make  the  loss  of  rent 
a  ground  for  special  damages  for  failing  to 
comply  with  a  contract  to  supply  furnish- 
ings for  the  leasehold  within  a  specified 
time  without  showing  a  valid  contract  ex- 
emi)tiiig  the  lessee  from  liability  for  the 
rent  during  the  period  of  delay.  America 
Theater  Co.  v.  Siegel,  C.  &  Co.  4:  1167,  77 
N.  E.  588,  221  111.  145. 

165.  The  damages  to  be  awarded  to  one 
who  has  contracted  to  drive  entries  in  a 
mine,  because  of  the  failure  of  the  otlier 
contracting  party  to  perform  his  agreement 
to  furnish  the  pumps,  piping,  and  tools  nec- 
essary to  keep  the  mine  free  from  water, 
which  might  be  procured  at  small  cost,  is 
the  cost  of  such  appliances,  and  not  the 
cost  of  the  labor  of  bailing  entailed  by 
failure  to  provide  them.  Stonega  Coke  & 
Coal  Co.  V.  Addington,  37:  969,'  73  S.  E. 
257.    112   Va.   807. 

166.  The  measure  of  damages  for  refusal 
to  ship  a  car  load  of  shingles  according  to 
contract  is  the  difference  between  the  con- 

♦  tract  price  and  their  value  at  the  date  of 
the  seller's  refusal  to  comply  with  a  de- 
mand for  performance.  R.  J.  Menz  Lumber 
Co.  V.  E.  J.  McNeeley  &  Co.  28:  1007,  108 
Pac.  621,  58  Wash.  223. 

167.  The  rental  value  of  a  cotton  gin  is 
the  measure  of  damages  for  delay  in  com- 
plying with  a  contract  to  furnish  machinery 
for  the  establishment  of  a  new  plant,  where 
the  operation  of  the  gin  depends  on  the 
machinery,  which  fact  is  fully  explained  to 
the  seller  when  the  contract  is  made,  and 
the  failure  to  comply  with  the  contract  pre- 
vents the  operation  of  the  gin.  Standard 
Supply  Co.  V.  Carter,  19:  155,  62  S.  E.  150, 
81  S.  C.  181.  (Annotated) 
Goods  not  maintainable  elsewhere. 

168.  The  measure  of  damages  for  failure 
to  deliver  food  shipped  to  supply  the  needs 
of  cattle  which  are  being  fattened  for  mar- 
ket is  the  injury  thereby  catised  to  the  cat- 
tle, where  no  other  supply  is  obtainable. 
Bourland  v.  Choctaw.  0.  &  G.  R.  Co.  3:  mi, 
90    S.    W.    483,    99    Tex.    407. 

Digest  1-52  I..R.A.(N.S.) 


Articles  purchased  mritli  intent  to  re- 
sell. 

169.  The  measure  of  damages  for  failure 
to  deliver  lumber  which,  to  the  kiiowledfre 
of  the  vendor,  was  purchased  for  resale, 
where  tlie  vendee,  using  reasonable  care 
and  diligence,  purchased  the  best  substitute 
obtainable  in  order  to  fulfil  his  subcontract 
of  sale,  is  the  diflerence  between  the  contract 
price  and  the  price  paid  for  the  substitute, 
plus  the  cost  of  shipment  to  the  place  of 
delivery,  where  there  was  no  market  at 
the  time  and  place  of  delivery  and  the  ven- 
dee in  purchasing  the  substitute  resortf-d 
to  the  nearest  available  market.  Hard- 
wood Lumber  Co.  v.  Adam,  32:  192,  08  S. 
E.  725,  134  Ga.  821. 

170.  Failure  by  one  who  has  contracted 
to  furnish  machinery  for  a  building,  and 
who  is  required  to  purchase  it  from  a  man- 
ufacturer, to  insert  in  his  contract  with  the 
latter  a  stipulation  for  payment  of  dam- 
ages to  which  he  will  be  subjected  by  a 
failure  to  furnish  it  within  a  specified  time, 
will  not  prevent  his  holding  the  manufac- 
turer liable  therefor  if  the  fact  that  such 
damages  would  follow  delay  in  delivery  is 
known  to  the  manufacturer  when  the  con- 
tract is  made.  Iowa  Mfg.  Co.  v.  Sturtevant 
Mfg.  Co.  18:  575,  162  Fed.  460,  89  C.  C.  A. 
346.  ( Annotated ) 

171.  The  intention  of  a  contractor  for 
state  work,  who  has  been  compelled  to  pay 
liquidated  damages  for  a  failure  to  com- 
plete his  work  on  time,  to  apply  to  the  leg- 
islature for  a  return  of  the  amount,  does 
not  prevent  his  recovering  the  amount  from 
a  manufacturer  whose  breach  of  contract 
to  furnish  necessary  material  on  time  caused 
the  delay  which  subjected  him  to  the  loss. 
Iowa  Mfg.  Co.  V.  Sturtevant  Mfg.  Co.  18: 
575,  162  Fed.  460,  89  C.  C.  A.  346. 

172.  A  materialman  who,  knowing  of  a 
provision  for  penalty  in  case  the  contractor 
fails  to  complete  a  building  in  time,  delays 
the  completion  of  the  building  by  refusal 
to  comply  with  his  contract  to  furnish  ma- 
terial, cannot  avoid  liability  to  reimburse 
the  contractor  to  the  amount  of  penalty 
paid,  on  the  theory  that  the  amount  of  it 
was  a  large  fraction  of  the  value  of  the 
material  to  be  furnished,  and  greatly  ex- 
ceeded the  profit  which  could  have  been 
made  on  the  contract,  and  therefore  could 
not  have  been  within  the  contemplation  of 
the  parties.  Campfield  v.  Sauer,  38:  837, 
189  Fed.  576,  111  C.  C.  A.  14. 

b.    Buyer's    failure    to    complete    pur- 
chase. 

(See   also   same   heading   in   Digest   L.R.A. 
1-70.) 

Liquidated  damages,  see  infra,  220. 
Recovery  for  loss  of  profits,  see  infra,  705, 

706. 
Opinion  evidence  as  to,  see  Evidence,  1121. 
Relevancy   of   evidence  on   question   of,   see 

Evidence,  1706. 
Resale  for  purpose  of  fixing,  see  Sale,  117- 

120. 


840 


DAMAGES,  III.  a,  4. 


173.  If  an  executory  contract  of  sale  has 
been  broken  by  the  vendee  before  the  title 
has  passed,  the  measure  of  damages  in  an  ac- 
tion by  the  vendor  is  the  difference  between 
the  contract  price  and  the  value  of  the  prop- 
erty. Acme  Food  Co.  v.  Older,  17:  807,  61 
S.  E.  235,  64  W.  Va.  255. 

174.  In  an  action  brought  by  the  payee 
against  the  maker  of  a  negotiable  note  giv- 
en in  consideration  of  an  executory  contract 
for  the  sale  of  goods,  under  which  title  to 
the  property  did  not  pass,  the  recovery,  in 
case  of  the  vendee's  refusal  to  accept  the 
goods,  is  limited  to  the  difference  between 
the  contract  jrice  and  the  value  of  the  prop- 
erty at  the  time  and  place  at  which  it  was 
when  the  contract  was  broken.  Acme  Food 
Co.  V.  Older,  17:  807,  61  S.  E.  235,  64  W.  Va. 
255. 

175.  The  measure  of  damages  arising  from 
the  refusal  of  a  purchaser  of  personal  prop- 
erty to  execute  notes  for  the  purchase  price 
is  the  contract  price  for  which  the  notes 
were  to  be  given.  Kellj'  v.  Pierce,  12:  180, 
112  N.  W.  995,  16  N.  D.  234. 

176.  The  damages  for  breach  of  contract 
to  purchase  cattle  at  or  about  a  certain 
date  are  the  difference  between  the  contract 
price  and  their  market  value  at  the  place 
of  delivery  at  the  time  for  performance. 
Bell  V.  Hatfield,  2:  529,  89  S.  W.  544,  121 
Ky.  560. 

177.  The  damages  for  breach  of  a  con- 
tract to  purchase  a  quantity  of  material  to 
be  delivered  in  instalments  is,  in  addition 
to  what  may  be  due  at  the  time  of  breach, 
the  aggregate  of  the  differences  between  the 
market  and  contract  prices  of  the  respective 
instalments  at  the  time  they  should  have 
been  delivered.  Alpha  Portland  Cement  Co. 
V.  Oliver,  38:  416,  140  S.  W.  595,  125  Tenn. 
135. 

178.  The  measure  of  damages  for  breach 
of  a  contract  to  purchase  a  specifically  des- 
ignated mortgage  within  sixty  days  after 
its  delivery  by  the  mortgagor  to  the  mort- 
gagee is  the  price,  and  not  the  difference 
between  the  price  and  the  market  value  of 
the  mortgage,  since  the  title  passes  when 
the  contract  is  made.  Henderson  v.  .Jen- 
nings, 30:  827,  77  Atl.  453,  228  Pa.  188. 
Mannfactured   articles. 

See  also  infra,  705,  706. 

179.  The  measure  of  damages  for  refusal 
to  take  an  article  manufactured  to  order  is 
the  contract  price,  with  interest  from  the 
time  when  delivery  should  have  been  ac- 
cepted under  the  contract,  if  the  maker 
elects  to  hold  the  article  for  the  purchaser. 
Bond  V.  Bourk,  43:  97,  129  Pac.  223,  54 
Colo.   51. 

180.  The  damages  for  refusal  to  comply 
with  a  contract  to  purchase  ties  to  be  manu- 
factured is  the  difference  between  the  con- 
tract and  the  market  price,  where  the  evi- 
dence shows  that  the  contract  price  was  in 
excess  of  that  at  which  the  manufacturer 
could  purchase  and  deliver  ties  at  the  point 
of  delivery  called  for  by  the  contract. 
Louisville  &  IST.  R.  Co.  v.  Coyle,  8:  433,  97  S. 
W.  772,  123  Ky.  854. 

181.  The  damages  for  failure  to  take  ties 
Digest  1-52  I<.R.A.(N.S.) 


according  to  contract,  where  there  is  no 
purchaser  near  the  place  of  delivery  except 
the  contracting  party,  so  that  there  is  no 
market  value  for  them,  may  be  fixed  by  the 
difference  between  the  contract  price  and 
what  the  owner  is  compelled  to  sell  them 
for.  Louisville  &  N.  R.  Co.  v.  Coyle,  8:  433, 
97  S.  W.  772,  123  Ky.  854. 

182.  The  measure  of  damages  for  cancela- 
tion, after  the  work  is  partially  done,  of 
an  order  for  a  machine  to  be  constructed  in 
such  form  that  there  is  no  market  in  which 
it  can  be  readily  sold,  is,  where  the  material 
is  used  for  other  purposes,  the  difference  be- 
tween the  actual  cost  of  manufacturing  and 
delivering  it  and  the  contract  price.  Ridge- 
way  Dynamo  &  E.  Co.  v.  Pennsylvania  Ce- 
ment Co.  18:  613,  70  Atl.  557,  221  Pa.  160. 

(Annotated) 

c.  Breach  of  warranty. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Recovery  for  loss  of  profits,  see  infra,  696, 
701,  704. 

183.  Recovery  by  a  merchant  of  damages 
for  delivery  of  a  consignment  of  merchan- 
dise of  a  quality  inferior  to  that  contracted 
for  is  not  prevented  by  the  fact  that  be- 
cause of  an  advance  in  the  market  price  it 
is  disposed  of  at  a  profit.  Ellison  v.  John- 
son,  5:  1 151,  54  S.  E.  202,  74  S.   C.  202. 

(Annotated) 

184.  Tlie  measure  of  damages  for  filling 
an  order  of  merchandise  to  be  resold  with 
articles  inferior  in  quality  to  those  con- 
tracted for  is  the  difference  in  value  between 
those  delivered  and  those  agreed  to  be  de- 
livered, at  the  time  and  place  of  delivery. 
Ellison  V.  Johnson,  5:  1151,  54  S.  E.  202, 
74    S.    C.    202. 

185.  For  breach  of  warranty  that  material 
used  in  manufacture  will  not  ignite  in  the 
ordinary  course  of  manufacture  so  as  to 
cause  a  conflagration  in  the  shop  and  a  de- 
struction of  property,  the  result  of  which  is 
such  conflagration,  a  rule  of  damages  more 
liberal  than  the  difference'  between  the  value 
of  the  material  delivered  and  that  called  for 
by  the  contract  must  prevail.  Leavitt  v. 
The  Fiberloid  Co.  15:855,  82  N.  E.  682,  196 
Mass.  440. 

186.  A  manufacturer  of  a  composition  ma- 
terial used  in  making  combs,  who,  in  filling 
an  order  for  the  material  by  name,  delivered 
an  article  of  inferior  quality,  liable  to  burst 
into  flame  in  the  ordinary  process  of  work- 
ing it,  which  fact  is  not  discoverable  by  in- 
spection, may,  under  his  implied  warranty 
of  quality,  be  liable  to  indemnify  the  pur- 
chaser for  loss  by  fire  caused  by  the  ignition 
of  the  material  during  ordinary,  careful,  and 
prudent  methods  of  using  it,  if  such  loss 
should  have  been  reasonably  anticipated. 
Leavitt  v.  The  Fiberloid  Co.  15:  855,  82  N.  E. 
682,  196  Mass.  440. 

187.  The  damages  for  breach  of  warranty 
that  strawberry  plants,  which  do  not  bear 
the   first   year,   are   true   t<>  name,   are  the 


DAMAGES,  III.  a,  4. 


841 


difference  between  the  value  of  the  crop  pro- 
duced the  tirst  bearing  year,  and  what  it 
would  have  been  had  the  plants  been  as  war- 
ranted, plus  the  cost  of  replacing  the  plants 
and  of  cultivating  them  during  the  nonbcar- 
ing  year.  Smeltzer  v.  Tippin,  49:  1156,  IGO 
S.  \V.  221,  109  Ark.  275. 

188.  The  damages  for  breach  of  a  war- 
ranty in  the  sale  of  horses  which  prove  to 
be  worthless  is  the  loss  to  the  vendee  of 
the  value  of  the  horses  in  the  condition 
warranted  by  the  vender  when  sold.  Wig- 
gins V.  Jackson,  43:  153,  121  Pac.  GG2,  31 
Okla.  292. 

189.  Where,  upon  the  purchase  of  a  team 
of  horses,  the  purchaser  states  that  the 
horses  are  desired  for  the  purpose  of  culti- 
vating a  cotton  crop,  and  the  vender 
guarantees  the  horses  sound  and  in  good 
health  and  capable  of  rendering  the  services 
for  which  they  are  desired,  and  it  after- 
wards develops  that  the  horses  are  un- 
sound and  by  reason  thereof  a  part  of  the 
land  remains  uncultivated,  in  the  absence 
of  notice  of  rentals  to  the  vender,  such 
rentals  on  the  uncultivated  land  constitute 
no  element  of  the  damages  for  breach  of 
such  warranty.  Wiggins  v.  Jackson,  43: 
153,  121  Pac.  G62,  31  Okla.  292. 

190.  One  whose  business  is  injured  by  at- 
tempting to  sell  goods  which  he  purchased 
under  a  false  representation  as  to  their 
quality  may,  upon  repudiating  his  purchase, 
hold  the  seller  liable  for  the  special  dam- 
ages thereby  inflicted  upon  him.  American 
Pure  Food  Co.  v.  Elliott,  31:  gio,  66  S.  E. 
451.  151  N.  C.  393.  (Annotated) 

191.  Damages  for  loss  of  time,  expenses, 
and  attorneys'  fees  incurred  in  preparing  a 
defense  to  an  action  on  a  promissory  note 
for  the  purchase  price  of  a  threshing  ma- 
chine, which  action  was  afterwards  dis- 
missed by  plaintiff,  with  prejudice,  upon 
payment  of  all  legal  costs,  cannot  be  recov- 
ered in  an  action  for  breach  of  warranty 
upon  which  the  machine  was  purchased,  no 
malice,  want  of  probable  cause,  or  bad  faith 
having  been  alleged,  since  the  dismissed 
suit,  and  not  the  breach  of  warranty,  was 
the  proximate  cause  of  such  damages.  John 
Deere  Plow  Co.  v.  Spatz,  20:  492,  99  Pac. 
221,  78  Kan.  786. 

192.  One  is  not  precluded  from  recovering 
damages  to  which  he  is  entitled  for  breach 
of  warranty  of  a  machine  which  he  has  pur- 
chased, by  the  fact  that  he  also  claims  dam- 
ages to  which  he  is  not  entitled.  Houser  & 
Haines  Mfg.  Co.  v.  McKay,  27:  925,  101  Pac. 
894,  53  Wash.  337. 

193.  One  who  rescinds  a  purchase  of  a 
harvesting  machine  for  breach  of  warraiii\ 
cannot  recover  damages  from  the  vendor  for 
the  loss  he  has  sustained  because  of  inabil- 
ity to  harvest  crops  because  of  breach  of  the 
contract.  Houser  &  Haines  Mfg.  Co.  v. 
McKay,  27:  925,  101  Pac.  894,  53  Wash.  337. 

(Annotated) 

194.  The  purchaser  of  a  harvesting  ma- 
chine may,  upon  rescinding  the  contract  for 
Digest   1-52  I..R.A.(N.S.) 


breach  of  warranty,  recover  the  freight  which 
he  has  paid  for  transportation  of  the  ma- 
chine from  the  factory  to  his  residence. 
Houser  &  Haines  Mfg.  Co.  v.  McKay,  27: 
925,  101  Pac.  894,  53  Wash.  337. 

195.  That  plaintiff  in  an  action  for  dam- 
ages for  breach  of  warranty  of  a  machine 
purchased  for  resale  alleges  loss  of  a  sale 
does  not  confine  his  right  to  recover  to  the 
question  of  his  diligence  with  respect  to 
such  sale,  if  he  also  alleges  that  the  ma- 
chine was  wholly  unsalable,  useless,  and 
without  value.  Loxterkamp  v.  Lininger  Im- 
plement Co.  33:  501,  125  N.  W.  830,  147 
Iowa,  29. 

196.  In  an  action  to  recover  the  purchase 
price  of  steel  pipe  bands,  many  of  wliicli 
contained  latent  defects  which  caused  them 
to  break  when  an  attempt  was  made  to  use 
them,  the  purchaser  is  entitled  to  recover 
under  a  counterclaim,  as  damages  natural- 
ly arising  from  the  vendor's  breach  of  con- 
tract, the  expense  of  hauling  the  bands 
whicli  wer6  defective  from  the  railroad 
station  to  which  they  were  sent  under 
the  contract  to  the  place  of  their  use,  a  few 
miles  distant,  of  loading,  unloading,  dis- 
tributing, gathering,  counting,  painting,  and 
of  placing  them  upon,  and  of  taking  them 
off,  the  pipes  when  broken;  but  damages  on 
account  of  delays,  loss  of  time,  trouble,  and 
extra  work  of  superintendence  are  too  re- 
mote and  speculative  for  allowance.  Mc- 
Donald V.  Kansas  City  Bolt  &  Nut  Co. 
8:  mo,  149  Fed.  360,  79  C.  C.  A.  298. 

197.  The  wages  and  board  of  a  gang  of 
men  rendered  idle  in  consequence  of  a 
breach  of  contract  to  furnish  an  efficient 
boiler  and  engine  for  a  sawmill  are  re- 
coverable by  way  of  damages  for  such 
breach  where  the  purchaser  kept  them  ready 
to  proceed  with  his  work  in  reliance  upon 
the  seller's  statement  that  the  engine  would 
be  put  in  repair  and  returned  to  him  in  a 
few  days.  Corbin  v.  Thompson,  2  B.  R.  C. 
70,  .39  Can.  S.  C.  575. 

198.  Ordinarily,  as  in  the  absence  of  a 
promise  to  repair  immediately,  the  measure 
of  damages  recoverable  for  breach  of  war- 
ranty of  the  fitness  of  an  engine  for  service 
is  the  sum  for  which  another  engine  might 
have  been  hired  while  the  first  was  being 
repaired.  Corbin  v.  Thompson,  2  B.  R.  C. 
70,  39  C.  S.  C.  575. 

Defects    causing   personal   injuries. 

199.  Loss  of  the  society  and  services  of 
his  wife,  who  died  in  consequence  of  eating 
tinned  salmon  sold  by  defendant,  is  an  ele- 
ment of  damages  recoverable  by  a  husband 
in  an  action  for  breach  of  an  implied  war- 
ranty that  the  salmon  so  sold  was  fit  for 
human  food,  since  the  death  of  the  wife  is 
not  an  essential  part  of  the  cause  of  action, 
but  only  an  element  in  ascertaining  the 
damages  arising  therefrom.  Jackson  v. 
Watson,  3  B.  R.  C.  182,  [1909]  2  K.  B.  193. 
Also  Reported  in  78  L.  J.  K.  B.  N.  S.  587, 
100  L.  T.  N.  S.  799,  25  Times  L.  R.  4.54, 
53  Sol.  Jo.  447.  (Annotated) 


842 


DAMAGES,  III.  a,  5,  6. 


6.  Of  employment. 

(See  also   same   heading   in  Digest  L.R.A 
1-10.) 

Loss  of  profits  from  breach,  see  infra,  682- 

G85. 
Time   for   which    damages   recoverable,    see 

infra,  707. 

200.  The  damages  for  breach  of  a  contract 
of  employment  are  not  limited  to  the  wages 
which  have  accrued  at  the  time  of  trial  in 
the  nisi  prius  court.  Webb  v.  Depew,  i6: 
813,  116  N.  W.  560,  152  Mich.  698. 

201.  Tlie  measure  of  damages  for  the 
wrongful  discharge  of  a  servant  is  the 
amount  which  the  servant  would  have 
earned  had  he  been  permitted  to  perform  the 
service,  less  what  he  had  received  or  coiild 
have  earned  from  other  employment.  Smith 
V.  Cashie  &  C.  R.  &  Lumber  Co.  5:  439,  54 
S.  E.  788,  142  N.  C.  26.  (Annotated) 

202..  A  corporation  is  not  liable  in  dam- 
ages for  the  improper  termination  by  it,  as 
principal,  of  an  agency  contract,  beyond  the 
period  for  which  it  was  organized,  where 
no  definite  period  was  fixed  by  the  contract 
itself,  and  no  offer  was  made  to  show  that 
the  corporation  intended  to  extend  its  arti- 
ficial existence  beyond  such  period.  Newhall 
V.  Journal  Printing  Co.  20:  899,  117  N.  W. 
228,  105  Minn.  44. 

203.  Tlie  damages  to  be  awarded  for 
breach  of  a  contract  to  employ  a  tax  ferret 
for  a  share  of  the  penalty  provided  by  stat- 
ute for  omission  of  the  property  cannot  be 
ascertained  until  delinquent  taxes  are  col- 
lected, where  the  statute  provides  that  the 
officers  placing  unlisted  property  on  the  list 
shall  be  entitled  to  a  share  of  the  penalty 
to  be  paid  at  such  times  as  the  tax  is  col- 
lected on  the  assessment.  Pierson  v.  Minne- 
haha County,  38:  261,  134  N.  W.  212,  28  S. 
D.  534. 

204.  Tlie  damages  for  wrongfuly  dis- 
charging an  architect  who  had  undertaken 
to  draw  plans  for  and  superintend  the  con- 
struction of  a  building  for  a  percentage  of 
its  cost  are  the  difference  between  the  con- 
tract price  and  what  it  would  have  cost 
them  to  complete  their  undertaking  at  tlie 
time  of  their  discharge.  Gould  v.  McCor- 
mick,  47:  765,   134   Pac.   676,   75  Wash.   61. 

205.  The  measure  of  damages  which  one 
who  has  given  notes  for  the  implements  and 
good  will  of  another's  business  and  his 
agreement  to  render  for  a  certain  time  per- 
sonal services  in  the  business  is  entitled  to 
counterclaim  against  his  liability  on  the 
notes  in  case  of  the  death  of  the  other  per- 
son before  the  services  were  rendered,  is  l:ie 
difference  between  the  value  of  the  contract 
made  with  him  and  that  which  could  have 
been  made  with  another  person  equally 
skilled  and  competent,  ^lendonhall  v.  Davis, 
21:914,  100  Pac.  336,  52  Wash.  169. 

206.  Where  a  servant  ia  wrongfully  dis- 
missed from  his  employment,  the  damages 
for  the  dismissal  cannot  include  compensa- 
tion for  the  manner  of  dismissal,  for  his 
injured  feelings,  or  for  the  loss  he  may  sus- 
Digest  1-52  KR.A.(N.S.) 


tain  from  the  fact  that  the  dismissal  of  it- 
self makes  it  more  difficult  for  him  to  ob- 
tain fresh  employment.  Addis  v.  Gramo- 
phone Co.  Ltd.  3  B.  R.  C.  98,  [1909]  A.  C. 
488.  Also  Reported  in  78  L.  J.  K.  B.  N.  S. 
1122,  101  L.  T.  N.  S.  466. 

207.  Commissions  on  sales  which  there  is 
reasonable  ground  to  think  might  have 
been  effected  during  the  unexpired  portion 
of  the  term,  arc  not  too  vague  or  conjectural 
to  be  taken  into  consideration  in  assessing 
damages  for  the  unlawful  termination  of 
a  contract  of  employment,  where  there  is  a 
sufficient  evidentiary  basis  for  their  assess- 
ment. Laishley  v.  Goold  Bicycle  Co.  1  B. 
R.  C.  115,  (1903)  6  Ont.  L.  Rep.  319.  Also 
Reported  in  23  Canadian  Law  Times,  Occ. 
N.  304,  2  Ont.  Rep.  Week.  780. 

( Annotated ) 

6.  To  advance  money;  nonpayment  of, 
or  failure  to  collect,  checUs. 

(See   also   same   heading  in   Digest   L.R.A, 
1-10.)  ■" 

To  advance  money. 

Allowing  for  loss  of  profits,  see  infra,  691. 

208.  Losses  directly  incurred  as  well  as 
gains  prevented,  may  furnish  a  legitimate 
basis  for  compensation  to  the  party  injured 
by  repudiation  of  a  contract  to  loan  money. 
Holt  V.  United  Security  L.  Ins.  &  T.  Co. 
(N.  J.  Err.  &  App.)  21:691,  72  Atl.  301, 
76  N.  J,  L.  585. 

209.  Where  the  profits  prevented  by  re- 
pudiation of  an  agreement  to  loan  money 
cannot  be  recovered,  by  reason  of  the  want 
of  definite  proof,  expenditures  fairly  in- 
curred by  the  injured  party  in  preparation 
for  performance,  or  in  part  performance  of 
the  agreement,  form  a  proper  subject  for 
consideration,  where  the  party  injured, 
while  relying  upon  his  contract,  makes  the 
expenditures  in  anticipation  of  the  advan- 
tages that  will  come  to  him  from  completed 
performance.  Holt  v.  United  Security  L. 
Ins.  &  T.  Co.  (N.  J.  Err.  &  App.)  21:  691, 
72  Atl.  301,  76  N.  J.  L.  585. 

210.  The  damages  to  be  awarded  for 
breach  of  a  contract  to  lend  money  to  re- 
place a  milldam  cannot  include  the  amount 
advanced  by  the  disappointed  party  to  carry 
on  the  work,  where  the  contract  provided 
for  use  of  his  money  only  in  the  event  that 
the  money  to  be  advanced  under  the  con- 
tract proved  insufficient  to  complete  the 
work.  Bixbv-Theison  Lumber  Co.  v.  Evans, 
29:  194,  52  So.  843,  167  Ala.  431. 

211.  For  breach,  after  the  disappointed 
party  has  entered  upon  the  work  of  tear- 
ing out  the  old  dam,  of  a  contract  to  lend 
money  to  replace  a  milldam  and  furnish 
logs  to  be  sawed  in  the  mill,  the  value  of 
the  service  to  be  applied  in  satisfaction  of 
the  loan,  damages  may  be  recovered  which 
will  make  him  whole,  without  the  necessity 
of  his  showing  that  he  could  not  have  ob- 
tained the  money  from  any  other  source. 
Rixby-Theison  Lumber  Co.  v.  Evans,  29:  194, 
52  So.  843,  167  Ala.  431.  (Annotated) 


DAMAGES,  III.  a,  7. 


843 


Nonpayment  of  checks. 

Prejudicial  error  in  instruction  as  to,  see 
Appeal  and  Error,  1360. 

212.  The  damages  recoverable  in  a  suit 
brought  by  a  customer  against  a  bank  for 
the  wrongful  dishonor  of  his  check  are  such 
temperate  damages  as  would  be  reasonable 
compensation  for  the  injury.  Hilton  v. 
Jesup  Bkg.  Co.  II :  224,  57  S.  E.  78,  128  Ga. 
30. 

Failure  to  collect  check. 

213.  Credit,  to  the  depositor,  of  a  check 
received  for  collection,  followed  by  negli- 
gence in  making  the  collection,  so  that  the 
rights  on  the  paper  are  lost,  does  not  make 
the  bank  liable  for  the  face  of  the  paper, 
but  only  for  the  amount  lost  through  the 
neglect.  Jefferson  County  Sav.  Bank  v. 
Hendrix,  1:246,  39  So.  295,  147  Ala.  670. 

(Annotated) 

214.  The  measure  of  damages  for  the  neg- 
ligence of  a  bank  in  attempting  to  collect 
a  check  and  in  giving  notice  of  dishonor 
is  the  actual  loss  sustained,  which  the  plain- 
tiff must  allege  and  prove;  and  even  under 
the  doctrine  of  full  prima  facie  liability  the 
bank  cannot  be  held  for  the  face  value  of 
the  check  when  there  are  assets  of  the  bank- 
rupt bank  on  which  it  is  drawn,  and  a 
44  per  cent  dividend  has  been  declared,  and 
the  payee  is  still  the  owner  of  the  check. 
Hendrix  v.  Jefferson  County  Sav.  Bank, 
14:  686,  45  So.  136,  153  Ala.  636. 

7.  Liquidated  damages. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Presumption  and  burden  of  proof  as  to  in- 
tent of  parties,  see  Evidence,  226. 

Waiver  by  landlord  of  right  to  retain  de- 
posit by  tenant  as  liquidated  damages, 
see  Landlord  and  Tenant,  106. 

Effect  of  provision  for,  on  right  to  specific 
performance,  see  Specific  Perform- 
ance, 6,  85,  107,  108. 

Tender  of,  see  Tender,  22. 

215.  A  deposit  by  one  leasing  for  a  five- 
year  period,  of  two  months'  rent  to  indem- 
nify the  lessor  against  any  loss  or  dam- 
age which  he  may  sustain  by  reason  of 
any  violation  of  the  contract  by  the  lessee, 
as  liquidated  damages,  may  be  retained  by 
the  lessor  in  case  he  is  compelled  to  evict 
the  tenant  for  nonpayment  of  rent,  although 
he  acts  immediately  upon  the  default,  so 
that  the  deposit  more  than  equals  the  rent 
due  and  unpaid.  Barrett  v.  Monro,  40:  763, 
124  Pac.  369,  69  Wash.  229. 

216.  The  provision  in  a  contract  for  the 
payment  of  the  purchase  price  of  real  es- 
tate in  instalments,  with  interest,  that  in 
case  all  instalments  are  paid  on  or  before 
maturity  interest  will  be  remitted,  does  not 
render  the  provision  for  interest  a  penalty, 
and  therefore  the  purchaser  is  not  entitled 
to  a  conveyance  upon  paying  the  principal 
without  interest,  if  he  has  not  paid  the  in- 
stalments according  to  the  contract,  al- 
tV.'iugh  the  delays  were  only  slight  and  of 
Digest   1-52  L.R.A.(N.S.) 


little    importance.      Wrenn    v.    University 
Land  Co.  46:  897,  133  Pac.  627,  65  Or.  432. 

(Annotated) 

217.  A  stipulation  in  a  contract  for  the 
exchange  of  several  parcels  of  real  estate 
for  the  payment  of  $500  as  liquidated  dam- 
ages in  case  of  breach  will  be  regarded  as 
a  provision  for  stipulated  damages,  and 
not  for  a  penalty,  since  the  damages  to  be 
suffered  from  breacli  are  uncertain  in  their 
nature,  and  the  sum  stipulated  is  not  so  dis- 
proportionate to  the  probable  damages  suf- 
fered as  to  appear  unconscionable.  Mad- 
ler  V.  Silverstone,  34:  i,  104  Pac.  165,  55 
Wash.  159.  (Annotated) 

218.  A  stipulation  that,  upon  breach  of  a 
contract  for  the  conveyance  of  land,  the 
measure  of  damages  shall  be  a  certain  sum 
for  which  the  party  willing  to  comply  shall 
have  a  claim  which  he  may  recover  in  court, 
will  be  upheld  as  for  liquidated  damages, 
there  being  no  evidence  that  a  penalty  was 
intended,  and  the  sum  named  not  being  dis- 
proportionate with  the  values  involved  in 
the  deal,  nor  inconsistent  with  the  nature 
of  the  contract  or  the  circumstances  of  the 
transaction.  Selby  v.  Matson,  14:  1210,  114 
N.  W.  609,  137  Iowa,  97. 

219.  Under  a  contract  for  the  purchase  of 
a  mining  claim,  which  provides  for  periodic 
payments,  which,  together  with  any  other 
sums  which  may  have  been  paid,  shall  be 
forfeited  to  the  seller  as  liquidated  damages 
in  case  of  the  purchaser's  breach  of  contract, 
no  recovery  can  be  had  In  case  the  purchaser 
surrenders  possession  for  the  value  of  de- 
velopment work  which  the  purchaser  agreed, 
bnt  failed,  to  do  on  the  property.  K.  P. 
Mining  Co.  v.  Jacobson,  4:  755,  83  Pac.  728, 
30   Utah,    115.  (Annotated) 

220.  A  provision  in  a  contract  to  pur- 
chase a  large  number  of  cattle,  involving 
about  $40,000,  that  failure  to  perform  shall 
cause  a  forfeiture  of  the  advanced  payment 
of  $3,000,  which  sum  shall  be  returned  in 
case  the  seller  fails  to  deliver,  in  addition 
to  paying  damages  caused  by  the  shortage, 
is  a  stipulation  for  a  penalty,  and  not 
liquidated  damages.  Evans  v.  Moseley 
50:  889,  114  Pac.  374,  84  Kan.  322, 

(Annotated) 

221.  In  a  contract  to  support  and  main- 
tain one  for  the  remainder  of  his  life,  fix- 
ing a  sum  to  be  paid  in  case  of  breach  and 
denominating  it  a  "penal  sum,"  the  amount 
cannot  be  construed  to  be  liquidated  dam- 
ages, when  there  is  nothing  in  the  nature 
of  the  case  and  the  tenor  of  the  agreement 
indicating  that  the  parties  themselves  fair- 
ly estimated  and  adjusted  the  damages  at 
the  time  of  making  the  contract.  WMlkes 
V.  Bierne,  31:  937,  69  S.  E.  366,  68  W.  Va. 
82.  (Annotated) 

222.  An  agreement  by  a  man  to  convey 
real  estate  to  his  wife  in  case  he  resumes  il- 
licit relations  with  his  paramour,  in  case  slie 
condones  his  offense  and  discontinues  di- 
vorce proceedings  against  him,  provides  for 
liquidated  damages,  and  not  a  penalty  or 
forfeiture.  Darcey  v.  Darcey,  23:  886,  71 
Atl.  595,  29  R.  I.  384. 

223.  A   sum   provided   by  a   contract  ap- 


1^4 


DAMAGES,  III.  b. 


poiniing  a  sales  agent,  which  is  designated  ( 
liquidated  damages,  and  is  to  be  reserved 
from  commissions  and  retained  by  the  prin- 
cipal upon  default  of  the  agent,  will  be  re- 
garded as  liquidated  damages, .  and  not  a 
penalty,  where  it  is  not  disproportionate  to 
the  probable  damages  which  might  result 
from  violation  of  the  covenants,  which  are 
wholly  uncertain  and  incapable  of  being 
readily  ascertained  in  advance.  Bilz  v. 
Powell,  38:  847,  117  Pac.  344,  50  Colo.  482. 

(Annotated) 

224.  That  a  fund  designated  by  a  contract 
of  sales  agency  as  liquidated  damages,  to  be 
retained  by  the  employer  upon  default  of 
the  agent,*  is  to  be  accumulated  up  to  a 
specified  maximum  by  a  retention  of  a  per' 
centage  of  commissions  earned,  so  that  it 
increases  as  the  time  for  termination  of  the 
contract  approaches,  does  not  require  a  hold- 
ing that  the  sum  provided  is  a  penalty, 
where  there  was  reason  to  anticipate  that 
the  maximum  would  be  accumulated  early 
in  the  employment.  Bilz  v.  Powjell,  38:  847, 
117  Pac.  344,  50  Colo.  482. 

225.  A  contract  by  one  to  enter  the  em- 
ploy of  another  as  his  representative  for  the 
sale  of  automobiles,  to  conduct  himself  in 
a  sober  and  gentlemanly  manner,  to  use  his 
best  efforts  to  make  sales,  and  to  give  his 
whole  time  and  energy  to  the  business,  does 
not  impose  upon  him  duties  of  such  various 
kinds  and  importance  that  a  provision  of 
a  sum  as  liquidated  damages  to  be  retained 
by  the  employer  upon  his  default  will  be 
held  to  be  a  penalty.  Bilz  v.  Powell,  38: 
847,  117  Pac.  344,  50  Colo.  482. 

For  delay  in  completing   contract. 

Determination  of  owner's  responsibility  foj 
delays  in  building  contract  containing 
stipulation  for,  see  Contracts,  638. 

Question  for  jury  whether  manufacturer's 
delay  was  responsible  for  contractor  be- 
ing compelled  to  pay,  see  Trial,  102. 

See  also  supra,  171,  172. 

226.  A  provision  in  a  contract  for  placing 
an  improvement  in  a  building,  that  if  the 
owner  shall  require  any  deviation,  the  same 
may  be  made  without  annulling  or  invali- 
dating the  contract,  will  not  operate  to  re- 
new a  right  to  liquidated  damages  for  de- 
lay in  completion  of  the  work  after  the  pro- 
vision therefor  has  been  abrogated  by  de- 
lays to  which  the  owner  materially  contrib- 
uted. Mosler  Safe  Co.  v.  Maiden  Lane 
Safe  Deposit  Co.  37:  363,  93  N.  E.  81,  199 
N.  Y.  479. 

227.  Where  a  contract  expressly  provides 
stipulated  or  liquidated  damages  for  failure 
to  complete  a  building  within  a  specified 
time,  and  the  breach  alleged  is  a  refusal 
to  perform  any  part  of  the  contract,  and 
it  appears  that  the  parties,  in  stipulating 
for  liquidated  damages,  did  not  contemplate 
such  refusal,  but  only  a  failure  to  complete 
within  the  specified  time,  the  damages  sus- 
tained by  the  alleged  breach  of  the  con- 
tract should  be  determined  not  by  the  stip- 
ulation contained  in  the  contract,  but  by 
proper  rules  of  law.  Moses  v.  Autuono, 
20:  350,  47  So.  925,  56  Fla.  499. 

(Annotated) 
Digest  1-52  Ii.R.A.(N.S.) 


228.  A  stipulation  ti?  a  fcohtfac^  io'lSuhd 
a  dwelling  house  for  .$5,400,  wliich  the  own- 
er, who  was  boarding,  wishes  to  occupy  as 
a  residence,  because  of  the  delicate  condi- 
tion of  his  wife,  for  $10  damages  for  each 
day  tliat  the  structure  remained  uncom- 
pleted after  a  specified  time,  is  enforce- 
able, and  not  invalid  as  a  i^enalty.  Craw- 
ford V.  Heatwole,  34:  587,  GO  S.  E.  46,  110 
Va.   358.  (Annotated) 

229.  Liquidated  damages,  and  not  a  penal- 
ty, are  provided  for  by  a  contract  for  plac- 
ing a  safe  and  vault  in  a  building  within  a 
specified  time,  and  declaring  that,  whereas 
failure  to  complete  the  work  within  the 
time  limited  will  cause  serious  loss,  the  pre- 
cise extent  of  which  might  be  difficult  of 
estimation,  therefore  the  contractor  agrees 
to  pay  a  specified  amount  for  each  day's 
delay;  and  the  amount  specified  is  not 
plainly  disproportionate  to  the  injury. 
Mosler  Safe  Co.  v.  Maiden  Lane  Safe  De- 
posit Co.  37:  363,  93  N.  E.  81,  199  N.  Y.  479. 

230.  The  right  of  the  owner  of  a  build- 
ing to  liquidated  damages  for  failure  to 
complete  a  vault  witliin  a  specified  time  is 
abrogated  if  he  is  responsible  for  a  sub- 
stantial part  of  the  delay,  and  he  cannot 
therefore  recover  such  damages  for  delay 
beyond  the  time  for  which  he  is  respon- 
sible. Mosler  Safe  Co.  v.  Maiden  Lane  Safe 
Deposit  Co.  37:  363,  93  N.  E.  81,  199  X.  Y. 
479. 

Breacli  of  covenant  against  engaging 
In  business. 

231.  A  provision  in  a  contract  obligating 
one  party  not  to  compete  in  business  with 
auotlier,  that,  if  he  does  so,  he  shall  for- 
feit a  certain  amount  per  annum  for  a  spec- 
ified period,  is  for  a  penalty,  and  not  liqui- 
dated damages.  Buckbout  v.  Witwer,  23: 
506,  122  N.  W.  184,  157  Mich.  406. 

h.  For  telegrams. 

(Bee  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Preventing  unnecessary  amount,  see  supra, 
24. 

Mental  anguish  for,  see  infra.  III.  o,  2,  6. 

For  libelous  telegram,  see  infra,  345. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  161-165. 

Relevancy  of  evidence  as  to,  see  Evidence, 
1707,  1708. 

Sufficiency  of  allegations  a.s  to,  see  Plead- 
ing, 209,  213. 

Proximate  cause  of,  see  Pboximate  Cause, 
42. 

As  to  telegrams  generally,  see  Telegraphs, 
II. 

Limitation  of  liability  by  telegraph  com- 
pany, see  Telegraphs,  II.  d. 

232.  The  fact  that  telegraph  companies 
are  by  law,  in  this  state  made  common  car- 
riers, and  must  use  the  utmost  diligence  in 
the  transmission  and  delivery  of  messages 
intrusted  to  them,  does  not  change  the  rule 
at  common  law  with  reference  to  their  lia- 
bility  for   damages,  where   the   injury   sus- 


DAMAGES,  III.  b. 


845 


taincd  is  not  the  proximate  and  natural  re- 
sult of  the  negligent  act.  Western  U.  Teleg. 
Co.  V.  Foy,  49:  343,  124  Pac.  305,  32  Olda. 
801. 

233.  A  telegraph  company  which  wrong- 
fully refuses  to  accept  a  message  for  trans- 
mission under  circumstances  of  aggravation 
is  liable  for  the  damages  caused  thereby, 
whether  they  could  have  been  reasonably 
anticipated  or  not.  Cordell  v.  Western  U. 
Teleg.  Co.  22:540,  63  S.  E.  71,  149  N.  C. 
402. 

234.  In  an  action  in  tort  against  a  tele- 
graph company  for  the  breach  of  a  public 
duty  in  negligently  transmitting  an  incor- 
rect copy  of  a  message  delivered  to  it  for 
transmission,  damages  may  be  recovered  by 
the  plaintiff  for  the  loss  or  injury  sustained 
as  a  proximate  consequence  of  the  defend- 
ant's negligent  act,  and  which  was  con- 
templated by  the  parties,  or  should  have 
been  contemplated  by  them  as  probable  or 
likely  to  follow  the  negligence.  Western 
U.  Teleg.  Co.  v.  Milton,  11:  560,  43  So.  495, 
53  Fla.  484. 

235.  The  damages  to  be  recovered  in  an 
action  in  tort  by  the  sendee  of  a  telegram, 
against  the  telegraph  company,  for  delay 
in  delivery,  are  governed  by  the  same  rule 
which  would  govern  in  an  action  by  the 
sender  on  the  contract.  M.  M.  Stone  &  Co. 
V.  Postal  Teleg.  Cable  Co.  46:  180,  8/  Atl. 
319,  35  R.  I.  498. 

236.  The  actual  damages  sustained  by 
the  addressee  of  an  intelligible  message 
through  its  erroneous  transmission  may  be 
recovered  by  him  from  the  company  in  an 
action  of  tort.  Bailv  v.  W^estern  U.  Teleg. 
Co.  43:  502,  76  Atl.  736,  227  Pa.  522. 

237.  Compensation  for  loss  of  time  and 
for  money  expended  in  fruitlessly  meeting 
trains  to  receive  a  corpse  for  burial  may  be 
recovered  against  a  telegraph  company  whose 
negligence  in  failing  to  transmit  a  telegram 
was  responsible  therefor.  Cumberland 
Teleph.  &  Teleg.  Co.  v.  Quigley,  19:  575,  112 
S.  W.  897,  129  Ky.  788. 

238.  An  award  of  $2,000  is  not  excessive 
for  the  suflTering  of  a  pregnant  woman,  who 
was  ruptured  and  suffered  a  dry  birth,  with 
intense  agony,  because  of  the  failure  of  a 
telegraph  company  to  deliver  a  message  an- 
nouncing her  arrival  in  the  night,  at  a 
station  where  there  were  no  accommoda- 
tions, so  that,  upon  finding  herself  there 
with  no  one  to  meet  her,  she  was  com- 
pelled to  seek  shelter  through  the  dark,  on 
foot.  Western  U.  Teleg.  Co.  v.  Crawford, 
35:  930,  116  Pac.  925,  29  Okla.  143. 
Smumoning  physician. 

Recovery  for  mental  anguish,  see  infra,  648. 

239.  A  physican  may  hold  a  telegraph 
company  liable  for  loss  of  the  fee  which  he 
would  have  received  from  the  consultation, 
where  it  fails  to  deliver  a  teleg'ram  summon- 
ing him  to  attend  a  patient.  Barker  v. 
Western  U.  Teleg.  Co.  14:  533,  114  N.  W. 
439,  134  Wis.  147.  (Annotated) 
Announcing  illness  or  death. 
Eecovcry    for    mental    anguish,    see     infra, 

649-659. 

240.  The  appellate  court  will  not  inter- 
Digest  1-52  I..R.A.(N.S.) 


fere  with  an  award  of  $1,000  for  compensa- 
tion to  a  sister  for  being  deprived,  by  the 
negligence  of  a  telegraph  company  in  failing 
to  deliver  a  telegram,  of  the  opportunity  to 
attend  the  funeral  of  her  brother.  Western 
U.  Teleg.  Co.  v.  Caldwell,  12:  748,  102  S.  W. 
840,  126  Ky.  42. 

241.  Nine  hundred  and  fifty-five  dollar* 
and  fifty  cents  is  not  excessive  to  award  a 
widow  for  the  negligent  failure  of  a  tele- 
graph company  to  deliver  a  message  in  time 
to  permit  her  to  reach  the  bedside  of  her 
dying  husband  before  he  sank  into  final 
unconsciousness.  Western  U.  Teleg.  Co.  v. 
Price,  29:  836,  126  S.  W.  1100,  137  Ky.  758. 
Business  telegrams  generally. 
Relevancy  of  evidence  as  to,  see  Evidence, 

1707. 

242.  The  damages  for  which  a  telegraph 
company  which  fails  to  deliver  a  message 
from  an  insurer,  cancelling  a  policy,  so 
that  the  property  is  destroyed  before  the 
policy  is  canceled,  is  liable,  are  the  amount 
which  the  insurer  is  compelled  to  pay  for 
the  loss,  and  not  merely  the  difference  be- 
tween the  reasonable  value  of  carrying  the 
risk  for  the  additional  time  and  the  amount 
of  unearned  premium  on  the  policy.  Provi- 
dence-Washington Ins.  Co.  V.  Western  U. 
Teleg.  Co.  30:  1170,  93  N.  E.  134,  247  111.  84. 

243.  A  telegraph  company  which  fails  to 
deliver  a  message  from  a  bidder  for  public 
work  directing  the  addition  of  a  certain 
amount  to  his  bid  is  liable  in  damages  for 
such  amount  in  case  the  contract  is  award- 
ed at  the  original  price  and  the  increase 
would  have  been  added  and  received  by  him 

j  had  the  message  been  delivered.  Postal 
Teleg.  Cable  Co.  v.  Nichols,  16:  870,  159  Fed. 
643,  89  C.  C.  A.  585. 

244.  One  who  sends  a  telegram  while  en 
route  from  one  place  to  another,  in  re- 
sponse to  a  telegram  from  a  business  as- 
sociate in  the  latter  place,  announcing  the 
time  of  his  expected  arrival  in  the  latter 
place,  cannot  at  common  law  recover  of  the 
telegraph  company  for  his  time  and  the  ex- 
penses of  the  trip,  which  is  rendered  use- 
less because  of  the  failure  of  the  company 
to  deliver  the  message,  where  there  is  noth- 
ing in  the  language  of  the  message  to  ap- 
prise the  telegraph  company  that  a  failure 
to  deliver  it  may  result  in  the  trip  proving 
valueless,  and  no  special  circumstances  are 
communicated  to  the  company,  since  the 
breach  of  the  telegraph  company's  contract 
is  not  the  proximate  cause  of  such  loss  of 
time  and  expense  of  the  trip.  Kolliner  v. 
Western  U.  Teleg.  Co.  52:  1180,  147  N. 
W.  961.  126  Minn.   122.  (Annotated) 

245.  One  who  sends  a  message  to  another 
inquiring  as  to  the  price  of  pineapples  of 
a  specified  quality,  and  who  promptly  re- 
ceives a  telegram  from  a  third  person  quot- 
ing prices,  in  pursuance  of  which  he  pur- 
chases a  car  load  of  pineapples  which  prove 
to  be  of  inferior  quality,  can  only  recover 
from  the  telegraph  company  which  failed 
to  deliver  the  message  sent  by  him  the 
cost  of  sending  the  telegram,  or  nominal 
damages,  since  the  maxim  Causa  proxima, 
non  remota,  spectatur  applies.     Western  U. 


846 


DAMAGES,  III.  c,  1. 


Teleg.  Co.  v.  Barlow,  4:  262,  40  So.  491,  51 
Fla.    351.  (Annotated) 

246.  The  recovery  in  tort  by  the  addressee 
of  a  telegram  for  a  negligent  mistake  of  the 
telegraph  company  in  increasing  the  price 
at  which  he  is  directed  to  buy  goods,  where 
he  buys  them  in  good  faith  at  the  increased 
price,  in  accordance  with  the  message,  is 
the  amount  of  the  damages  that  proximately 
result  to  him  from  the  purchase.  Stewart 
V.  Postal  Teleg.  Cable  Co.  18:  692,  61  S.  E. 
1045,  131  Ga.  31. 

247.  The  measure  of  damages  for  the 
negligent  altering  of  a  telegram  quoting  a 
price  at  which  stock  will  be  sold,  where  the 
price  as  quoted  was  accepted  and  the  stock 
was  shipped  and  paid  for  in  accordance 
with  the  terms  of  the  telegram  as  received, 
and  the  vendors  acted  prudently  and  with 
due  diligence  after  discovering  the  mistake, 
so  as  to  minimize  the  loss,  is  the  difference 
between  the  market  value  of  the  stock  on 
the  day  the  message  was  received,  and  the 
price  paid  by  the  purchaser.  Strong  v. 
Western  U.  Teleg.  Co.  30:  409,  109  Pac.  910, 
18   Idaho,  389. 

248.  A  sheep  buyer  who  contracts  for 
sheep  on  the  faith  of  prices  at  price  quota- 
tions in  a  telegram  which  was  altered  dur- 
ing transmission  may  hold  the  company 
liable  for  the  difference  between  the  price 
which  he  is  compelled  to  pay  under  his 
contract  and  the  market  price  plus  the  cost 
of  sending  the  message,  although  he  is  not 
shown  to  have  ultimately  suffered  loss  in 
the  transaction.  Henry  v.  Western  U. 
Teleg.  Co.  46:  412,  131  Pac.  812,  73  Wash. 
260.  (Annotated) 

249.  To  determine  the  damages  to  be  paid 
by  a  telegraph  company  for  error  in  trans- 
mitting a  message  quoting  prices  on  sheep, 
their  market  value  may,  where  there  was 
no  market  where  they  were  located,  be  de- 
termined by  the  ruling  price  at  the  nearest 
market,  less  cost  of  getting  them  there  and 
the  probable  shrinkage  in  transportation. 
Henry  v.  Western  U.  Teleg.  Co.  46:  412,  131 
Pac.  812,  73  Wash.  260. 

250.  A  telegraph  company  which,  through 
the  erroneous  transmission  of  a  message  to 
a  commission  merchant,  causes  him  to  sell 
a  quantity  of  the  product  of  a  mill  at  less 
than  the  price  named  by  the  manufacturer, 
cannot  compel  him  to  apply  his  commission 
in  reduction  of  the  loss,  so  as  to  relieve  it 
from  liability  therefor.  Baily  v.  Western 
U.  Teleg.  Co.  43:  502,  76  Ail.  736,  227  Pa. 
522. 

251.  Substantial  damages  cannot  be  re- 
covered from  a  telegraph  company  by  a  man- 
ufacturer for  delay  in  messages  from  his 
factor  to  him,  asking  if  he  will  accept  a 
certain  offer  if  it  can  be  secured,  and  his 
reply  that  he  will  do  so  if  better  offers  can- 
not be  obtained,  although  the  factor  had 
the  offer  and  lost  the  sale  by  the  delay, 
where  the  telegraph  company  had  no  notice 
of  that  fact.  Clark  Mfg.  Co.  v.  Western  U. 
Teleg.  Co.  27:  643,  67  S.  E.  329,  152  N.  C. 
157. 

252.  One  who  submitted  by  telograph  a 
proposal  to  purchase  oats  at  a  designated 
Digest  1-52  L.R.A.(N.S.) 


price  for  future  delivery,  which  message  as 
delivered  contained  a  proposal  for  immedi- 
ate delivery,  which  was  accepted,  but  on  dis- 
covery of  the  mistake  was  treated  as  not 
binding,  cannot  recover  from  the  telegraph 
company  on  the  basis  of  a  contract  of  resale 
which  might  have  been  concluded  in  the 
event  the  addressee  of  the  message  had  ac- 
cepted t^ie  proposal  for  delivery  at  a  future 
time,  or  for  commissions  which  would  have 
accrued  to  him  in  case  of  resale.  Bass  v. 
Postal  Teleg.  Cable  Co.  12:  489,  56  S.  E. 
465,  127  Ga.  423. 

c.  Expulsion  of,  or  failure  in  duty  to, 
passenger. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Punitive   damages   for,   see   supra,   II.   b. 

Recovery  for  mental  anguish,  see  infra,  612- 
614;  III.  o,  2,  c. 

Prejudicial  error  in  instruction  as  to,  see 
Appeal  and  Error,  1361. 

Limitation  of  amount  of  carrier's  liability, 
see  Carriers,  11.  m,  6. 

Recovering  against  initial  carrier  damages 
for  injuries  on  other  road,  see  Carri- 
ers, 736. 

Relevancy  of  evidence,  see  Evidence,  1744. 

See  also  infra,  364,  373,  402,  409,  422,  424; 
Carriers,  382. 

253.  One  refused  passage  on  a  sleeping 
car,  in  violation  of  the  company's  contract 
to  carry  him,  is  entitled  to  recover  at  least 
the  auiount  paid  for  his  ticket.  Pullman 
Co.  v.  Krauss,  4:  103,  40  So.  398,  145  Ala. 
395. 

254.  If  a  passenger  could  not,  by  the 
exercise  of  ordinary  care,  have  discovered 
that  she  was  invited  by  the  conductor  to  dis- 
embark at  a  point  short  of  her  destination, 
she  is  entitled  to  recover  damages  arising 
from  illness  brought  about  by  exposure  to 
the  weather  after  leaving  the  car.  Georgia 
R.  &  E.  Co.  v.  McAllister,  7:  1177,  54  S.  E. 
957,  126  Ga.  447. 

255.  Damages  for  injuries  caused  by  the 
misdirection  of  a  passenger,  by  a  railroad 
ticket  agent,  as  to  the  best  route  by  which 
to  reach  his  destination,  will  include  com- 
pensation for  injuries  resulting  from  neg- 
ligence of  the  carrier  on  its  own  route,  and 
for  those  suffered  on  account  of  having  to 
make  more  changes,  and  because  of  being 
necessarily  longer  on  the  way  than  would 
have  been  required  on  the  proper  route. 
St.  Louis  Southwestern  R.  Co.  v.  White, 
2:  no,  89  S;  W.  746,  99  Tex.  359. 

256.  One  injured  by  a  strain  in  attempting 
to  board  a  train  by  the  use  of  steps  so  high 
as  not  to  be  reasonably  safe  may  recover 
reasonable  compensation  for  the  loss  of 
time  and  mental  and  physical  suffering 
which  directly  and  approximately  resulted 
from   tlie   injury.     Louisville   &   N.   R.   Co. 


DAMAGES,  III.  c,  1. 


847 


V.   Dver,   48:  816,    153    S.   W.    194,    152   Ky. 
264.  ' 

257.  In  an  action  for  damages  for  delay 
in  the  transportation  of  a  passenger,  there 
can  be  no  recovery  for  expenses  which  it  is 
not  shown  would  not  have  been  incurred  liad 
no  delay  occurred.  Central  of  Georgia  R. 
Co.  V.  Wallace,  49:  429,  80  S.  E.  282,  141  Ga. 
51. 

258.  Seven  hundred  and  fifty  dollars  is 
excessive  to  award  a  passenger  as  damages 
for  being,  in  breach  of  contract,  excluded 
from  the  train  at  a  place  M'here  he  was 
without  funds  or  friends,  where  the  evidence 
merely  shows  that  he  was  compelled  to  stop 
in  the  depot  over  night,  and  was  next  day 
furnished  with  food  by  someone  who  inter- 
ested himself  in  his  behalf.  Brian  v.  Oregon 
Short  Line  R.  Co.  25:  459,  105  Pac.  489, 
40  Mont.  109. 

Failure  to  stop  to  take  on  passenger. 

259.  Injuries  to  a  passenger,  due  to  his 
walking  to  his  destination  to  meet  an  im- 
portant business  engagement,  are  not  the 
proximate  result  of  the  carrier's  failure  to 
stop  its  train  for  him;  and  the  carrier  can- 
not be  held  liable  therefor.  Malcomb  v. 
Louisville  &  N.  R.  Co.  18:  489,  46  So.  768, 
155  Ala.  337. 

260.  One  for  whom  a  train  refuses  to  stop, 
according  to  schedule,  may  recover  damages 
for  having  to  walk  to  his  destination;  and 
is  not  bound  to  wait  for  the  next  train, 
and  recover  merely  for  the  delay.  Wil- 
liams v.  Carolina  &  N.  W.  R.  Co.  12:  191, 
57  S.  E.  216,  144  N.  C.  498. 

261.  $250  is  not  an  excessive  award  of 
damages  to  a  person  who  was  forced,  be- 
cause a  train  which  he  had  gone  to  a  flag 
station  to  board  wrongfully  refused  to  stop 
upon  his  signal,  to  walk  7  miles  over  a 
muddy  road  on  a  night  when  the  weather 
was  cold  and  bad,  with  the  result  that  he 
was  made  sick  and  confined  to  his  bed  for 
some  time,  suffering  severe  pain.  Southern 
R.  Co.  V.  Wallis,  30:  401,  66  S.  E.  370,  133 
Ga.  553. 

Putting    ivhite    person    in    coacli    for 

negroes. 
Punitive  damages,  see  supra,  76,  77. 

262.  Three  thousand  seven  hundred  and 
fifty  dollars  is  not  excessive  to  award  as 
actual  and  punitive  damages  for  placing  a 
young  white  woman  of  culture  and  refine- 
ment in  a  car  set  apart  for  colored  passen- 
gers, in  a  rude  and  insulting  manner, 
causing  her  to  suffer  a  nervous  shock. 
Louisville  &  X.  R.  Co.  v.  Ritchel,  41:  958, 
147  S.  W.  411,  148  Ky.  701. 

Insult;  abuse;  threat  to  expel. 
See  also  supra,  262. 

263.  An  award  of  $000  as  damages  to  a 
passenger  for  insult  and  abuse  by  a  con- 
ductor on  a  railroad  train  will  not  be  inter- 
fered with  on  appeal,  as  excessive,  although 
there  is  evidence  tending  to  show  that  the 
conductor  was  insane  when  committing  the 
offense,  if  there  is  also  evidence  that  he  was 
merely  under  the  influence  of  liquor  at  the 
time,  wliile  he  was  continued  in  his  posi- 
tion for  some  time  afterwards.  Chcsap'oakc 
Digest  1-52  L.R.A.(N.S.) 


&  0.  R.  Co.  V.  Francisco,  42:  83,  148  S.  W. 
46,  149  Ky.  307. 

264.  One  thousand  eight  hundred  dollars 
is  not  so  excessive  as  an  award  to  a  woman 
abused  and  insulted,  and  threatened  with 
ejection  from  a  train,  and  the  privacy  of 
whose  sleeping-car  berth  was,  without  warn- 
ing, invaded  by  the  conductor  while  she  was 
disrobed,  because  not  supplied  with  a  ticket 
through  the  fault  of  the  railroad  company, 
as  to  evince  partiality,  prejudice,  corrup- 
tion, or  unaccountable  caprice  on  the  part 
of  the  jury.  Cincinnati,  N.  0.  &  T.  P.  R.  Co. 
V.  Harris,  5:  779,  91  S.  W.  211,  115  Tenn. 
501. 

265.  In  an  action  brought  to  recover  dam- 
ages for  a  threat  made  by  a  conductor  to  ex- 
pel from  the  street  car  a  passenger  who 
presented  a  transfer  defective  because  of  a 
mistake  made  by  the  conductor  issuing  it, 
the  measure  of  damages  is  not  limited  to 
the  amount  paid  to  prevent  an  expulsion, 
but  general  damages  may  be  recovered  as 
for  an  inexcusable  trespass,  even  though  no 
aggravating  circumstances  were  connected 
with  the  threat  of  expulsion.  Georgia  R. 
&  E.  Co.  V.  Baker,  7:  103,  54  S.  E.  G39,  125 
Ga.  562. 

Carrying   beyond   station. 

Punitive,  see  supra,  92-97. 

Question    for    jury    as    to    amount    of,    see 

Tbial,  660. 
Power  of  trial  court  to  reduce  amount  of 

verdict,  see  Teial,  1165. 

266.  A  passenger  on  a  railroad  who  is 
negligently  carried  beyond  his  destination  is 
entitled,  in  the  absence  of  other  exculpatory 
circumstances,  to  recover  as  damages  there- 
for a  reasonable  sum  for  loss  of  time,  nec- 
essary expenses  incurred,  and,  in  addition 
thereto,  a  fair  compensation  for  inconven- 
ience experienced,  if  any,  on  account  of  such 
action  of  the  railroad  company.  Dalton  v. 
Kansas  City,  Ft.  S.  &  M.  R.  Co.  17:  1226, 
96  Pac.  475,  78  Kan.  232.  (Annotated) 
Causing  passenger  to  miss  train. 

267.  The  measure  of  damages  for  the  mis- 
take of  the  agent  of  a  railroad  company 
which  prevents  a  woman  who  has  engaged  a 
berth  on  a  sleeping  car  from  going  forward 
on  the  intended  train  is,  where  there  are  con- 
venient hotels  at  hand,  the  necessary  ex- 
pense of  the  delay  and  the  value  of  her  lost 
time,  and  will  not  include  sickness  brought 
on  by  her  attempt  to  drive  several  miles  to 
her  home  in  the  night.  Cincinnati,  N.  0.  & 
T.  P.  R.  Co.  v.  Rose,  21:  681,  115  S.  W.  830, 
—  Ky.  — . 

268.  A  railroad  company  which  negligent- 
ly causes  a  passenger  to  miss  a  train  on  a 
connecting  road  so  that  she  is  compelled  to 
stop  over  at  a  way  station  and  return  home 
is  not  liable  for  injury  to  her  through  go- 
ing into  a  cold  room  of  a  hotel  and  sitting 
up  all  night,  or  for  vexation  or  personal  in- 
convenience becavise  of  the  delay,  but  may 
be  chargeable  for  hotel  bills  and  lost  time. 
Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v.  Raine, 
19:  753,  113  S.  W.  495,  130  Ky.  454. 

269.  For  breach  of  contract  on  the  part 
of  a  carrier  that  one  of  its  regular  traiui 


848 


DAMAGES,  III.  c,  2,  d. 


should  make  its  connections,  which  is  nec- 
essary to  enable  a  passenger  to  reach  his 
destination  at  a  specified  time,  the  impor- 
tance of  which  is  known  by  the  company, 
the  passenger  may  hold  the  company  liable 
for  the  expense  of  a  special  train,  necessary 
to  eflTect  the  desired  result.  Haves  v.  Wa- 
cash  R.  Co.  31:  229,  128  N.  W.  217,  163 
Mich.  174. 

2.  Ejection. 

(See  also   same   heading   in   Digest   L.R.A. 
1-10.) 

Threat  to  expel,  see  supra,  264,  265. 
Punitive  damages,  see  supra,  83-91. 
Recovery  for  mental  anguish,  see  infra,  667- 

670. 
Instructions  as  to,  see  Appeal  and  Error, 

1363. 
Relevancy  of  evidence  as  to,  see  Evidence, 

1745. 
Mental    suffering    as    proximate    result    of 

ejection,  see  Proxisiate  Cause,  95. 

•'270.  Loss  of  time,  as  tp  the  value  of 
which  there  is  no  evidence,  cannot  be  con- 
sidered in  assessing  damages  for  wrongful 
ejection  of  a  passenger  from  a  train.  Chi- 
cago, R.  I.  &  P.  R.  Co.  V.  Newburn,  30:  432, 
110  Pac.  1065,  27  Okla.  9. 

271.  Counsel  fees  are  not  a  proper  element 
of  compensatory  damages  in  an  action  for 
wrongful  ejection  from  a  street  car.  United 
Power  Co.  v.  Matheny,  28:  761,  90  N.  E. 
154,  81  Ohio  St.  204.  (Annotated) 

272.  The  measure  of  damages  for  the  use 
of  excessive  force  in  ejecting  from  a  train 
one  who  had  become  a  trespasser  by  refusal 
to  pay,  or  make  a  proper  tender  of,  his  fare, 
is  an  amount  which  will  compensate  him 
for  his  physical  and  mental  suffering  re- 
sulting from  any  injury  so  occasioned,  and 
for  any  impairment  of  his  earning  capacity 
and  loss  of  time  resulting  from  the  injury; 
and,  if  the  trainmen's  conduct  was  oppres- 
sive, malicious,  or  wanton,  the  jury  are 
permitted  to  award  punitive  damages  in 
addition.  Louisville  &  N.  R.  Co.  v,  Cotten- 
gim,  13:  624,  104  S.  W.  280,  31  Ky.  L.  Rep. 
871. 

Instances  of  amouBits. 
New  trial  for  excessive  amount  of,  see  Ap- 
peal AND  Error,  1622. 

273.  An  award  of  $11,115,  as  damages 
for  injury  to  a  passenger  put  off  a  train 
while  sick,  without  money,  at  a  way  sta- 
tion hundreds  of  miles  from  friends,  and 
left  to  make  his  way  as  best  he  could  by 
walking  and  riding  on  freight  cars,  by 
reason  of  which  he  contracted  fatal  illness 
after  he  had  been  insulted,  his  baggage 
searched,  and  his  tickets  wrongfully  taken 
away  from  him  by  an  agent  who  received 
a  commission  for  doing  so,  and  gloated 
over  the  fact  that  he  had  put  other  pas- 
sengers off,  will  not  be  disturbed.  Forres- 
ter V.  Southern  P.  Co.  48:  i,  134  Pac.  753, 
136  Pac.  705,  36  Nev.  247. 

274.  Five  hundred  dollars  is  excessive 
to  award  a  passenger  wrongfully  ejected 
Digest  1-52  Ii.B.A.(N.S.) 


from  a  train  without  abuse,  and  compelled 
to  walk  11  miles  in  the  daytime,  when 
neither  road  nor  weather  was  bad  and  his 
only  injury  was  the  consequent  fatigue. 
Louisville  &  X.  R.  Co.  v.  Fish,  43:584, 
127  S.  W.  519,  —  Ky.  — . 

275.  Five  hundred  dollars  is  excessive  to 
award  as  damages  for  the  wrongful  ejec- 
tion of  a  man  from  a  train,  compelling  him 
to  walk  six  miles  on  a  summer  evening, 
although  there  is  evidence  tending  to  show 
that  it  occasioned  some  soreness  and  stiff- 
ness. Light  V.  Detroit  &  M.  R.  Co.  34:  28a, 
130  _N.  W.  1124,  165  Mich.  433. 

276.  Eight  hundred  dollars  is  excessive  to 
be  allowed  as  damages  for  the  ejection  from 
a  freight  train  of  a  mature  man  because 
of  a  mistake  in  the  evidence  of  his  right  to 
transportation,  where  the  manner  of  his 
ejection  would  in  no  way  reflect  on  him  and 
he  was  subjected  merely  to  slight  delay  and 
annoyance.  Olson  v.  Northern  V.  R.  Co. 
18:  209,  96  Pac.  150,  49  Wash.  626, 

277.  A  verdict  of  $1,000  is  not  excessive 
as  compensatory  damages  for  a  passenger's 
wrongful  discharge  from  a  train  by  a  sleep- 
ing car  company,  where  she  suffered  men- 
tally from  fright  because  of  the  time  and 
place  of  the  discharge,  although  she  re- 
ceived no  jjcrsonal  injury,  and  the  fright 
was  attended  by  no  serious  consequences 
whatever  to  her  body  or  mind,  and  the  only 
property  loss  sustained  was  the  payment  of 
5  cents  street-car  fare.  Pullman  Co.  v. 
Lutz,  14:  907,  45  So.  675,  154  Ala.  517. 

d.  In  respect  to  freight  or  baggage, 

(See   also   same  heading   in  Digest   L.R.A. 
1-10.) 

Mental  anguish  for  failure  in  duty  as  to 

corpse,  see  infra,  630-632. 
Allowance  for  loss  of  profits,  see  infra,  692- 

695. 
Limitation  of  amount  of  carrier's  liability, 

see  Carriers,  II.  o,  5;  III.  g,  3. 

278.  A  carrier  cannot  be  held  liable  for 
the  full  value  of  property  delivered  to  it 
for  transportation,  and  injured  through  its 
negligence,  if  the  injury  can  be  repaired  at 
slight  expense.  Parsons  v.  United  States 
Express  Co.  25:  842,  123  N.  W.  776,  144 
Iowa,   745. 

279.  The  damages  to  be  awarded  to  a 
shipper  of  a  machine  which  is  injured  by 
the  negligence  of  the  carrier,  but  which  can 
be  repaired  so  as  to  be  usable,  is  the  differ- 
ence between  its  value  when  delivered  to 
the  carrier  and  that  when  tendered  back  by 
it.  Parsons  v.  United  States  Express  Co. 
25:  842,  123  N.  W.  776,  144  Iowa,  745. 

280.  Notice  that  failure  to  deliver  cattle 
food  in  a  carrier's  possession  for  trans- 
portation will  result  in  injury  to  the  cat- 
tle, to  entitle  the  shipper  to  recover  dam- 
ages for  such  injury,  is  sufficient  if  given 
to  the  carrier  when  the  food  has  reached 
its  destination,  and  need  not  be  given  when 
the    contract    for    transportation    is    made. 


DAMAGES,  III.  d. 


849 


Bourland  v.  Choctaw,  0.  &  G.  R.  Co.  3:  iiii, 
90  S.  W.  483,  99  Tex.  407.  (Annotated) 

281.  A  verdict  for  $500  damages  for 
wrongfully  refusing  to  deliver  a  corpse  to 
the  consignee,  who  was  the  father  of  the 
deceased,  without  prepayment  of  charges, 
thereby  compelling  him  to  go  about  among 
his  neighbors  seeking  to  raise  money,  will 
not  be  disturbed  on  appeal.  Alcorn  v. 
Adams  Express  Co.  52:  858,  146  S.  W.  747, 
148  Ky.  352. 

Failure  to  furnisli  cars. 
Loss  of  profits,  see  infra,  0!)5. 

282.  Damages  for  delay  in  furnishing  cars 
for  the  shipment  of  stock  may  include  an 
allowance  for  the  expense  of  keeping  it  aft- 
er the  carrier  had  been  notified  that  it  was 
ready  for  shipment.  St.  Louis,  T.  M.  &  S. 
R.  Co.  V.  Ozier,  17:  327,  110  S.  W.  593,  86 
Ark.  179. 

283.  A  railroad  company  which  refuses  to 
supply  refrigerator  cars  for  shipping  gar- 
den truck  to  market  according  to  its  ob- 
ligation to  do  so  may  be  liable  for  the  value 
of  truck  not  gathered  and  tendered  for 
shipment,  where  the  failure  to  gather  it 
was  for  the  purpose  of  avoiding  useless  ex- 
pense, and  it  was  to  be  sold  free  on  board 
lit  point  of  shipment.  Atlantic  Coast  Line 
R.  Co.  V.  Geraty,  20:  310,  166  Fed.  10,  91  C. 
C.  A.  602. 

284.  The  measure  of  damages  for  failure 
to  furnish  cars  to  transport  coal  from  a 
m4ne  is  the  difference  between  the  reason- 
able selling  price  and  the  cost  of  mining 
and  placing  the  coal  on  the  market,  plus 
its  value  in  the  mine.  Illinois  C.  R.  Co. 
v.  River  &  R.  Coal  &  C.  Co.  44:  643,  150 
S.  W.  641,  150  Ky.  489. 

Refusal   to   receive. 

285.  One  who  contracts  with  a  mine  for 
a  certain  quantity  of  coal  to  fill  orders  al- 
ready taken,  and  takes  others  in  reliance 
thereon,  and  is  prevented  from  filling  his 
contract  because  of  the  refusal  of  a  railroad 
company  to  haul  the  coal  at  its  published 
rates,  may  hold  it  liable  for  the  difference 
in  cost  of  filling  the  orders  under  the  con- 
ditions created  by  the  refusal  of  the  rail- 
road to  haul  the  coal,  and  what  it  would 
have  cost  him  to  fill  them  had  the  railroad 
company  performed  its  duty,  to  the  amount 
which  the  mine  would  have  been  able  to 
furnish  in  compliance  with  his  contract. 
Hisrdon  v.  Tvouisville  &  N.  R.  Co.  33:  442, 
135  S.  W.  768,  143  Ky.  73. 

Delay. 

Loss   of    profits    resulting   from    delay,    see 

infra,  692-694. 
Presumption    and    burden    of    proof    as    to 

measure  of,  see  Evidence,  529. 
Interest  on  amount  recovered,  see  Interest, 

24. 
See  also  infra,  290a.  299,  694. 

286.  A  carrier  who  fails  to  perform 
promptly  his  contract  to  transport  the  scen- 
ery and  properties  of  a  traveling  show, 
knowing  that  their  absence  will  prevent  a 
performance,  is  liable  for  the  value  of  the 
ordinary  earnings  of  the  properties  during 
the  time  the  owner  is  deprived  of  their  use, 
less  the  expenses  which  he  is  saved  by  in- 
Digest  1-52  L.R.A.(N.S.) 


ability  to  exhibit;  and  the  fact  that  such 
damages  are  not  provided  for  in  the  ship- 
ping articles  is  immaterial.  Weston  v. 
Boston  &  M.  R.  Co.  4:  569,  76  N.  E.  1050, 
190  Mass.  298.  (Annotated) 

287.  The  freezing  of  plaintiff's  oranges  on 
the  trees  is  not  so  direct,  natural,  and  proxi- 
mate a  result  of  the  failure  of  a  railroad 
company  to  deliver  to  the  plaintiff  within  a 
reasonable  time  orange  boxes  accepted  by  it 
for  transportation  as  to  make  the  company 
liable  therefor  by  reason  of  such  delay, 
where  the  contract  of  carriage  did  not  fix 
any  specific  time  for  the  transportation 
and  delivery  of  the  boxes,  and  the  company 
was  not  informed  that  the  plaintiff  would 
leave  the  oranges  on  the  trees,  exposed  to 
the  danger  of  the  cold,  until  the  boxes  were 
delivered.  Williams  v.  Atlantic  Coast  Line 
R.  Co.  24:  134,  48  So.  209,  56  Fla.  735. 

(Annotated) 

288.  In  an  action  against  a  railroad  com- 
pany for  damages  resulting  from  defendant's 
failure  promptly  to  deliver  orange  boxes 
accepted  by  it  for  transportation,  loss  and 
damage  incurred  by  the  consequent  en- 
forced idleness  of  persons  emploj'ed  to  pack 
and  ship  the  oranges  on  plaintiff's  orange 
groves  cannot  be  recovered  where  the  de- 
fendant was  not  informed  that  men  had 
been  employed  to  pick  the  oranges,  and  the 
contract  of  carriage  did  not  fix  any  specific 
time  for  the  transportation  and  delivery 
of  the  boxes,  as  such  damages  cannot  rea- 
sonably be  supposed  to  have  entered  into 
the  contemplation  of  the  parties.  Williams 
V.  Atlantic  Coast  Line  R.  Co.  24:  134,  48  So. 
209,  56  Fla.  735. 

Lioss  or  conversion. 

Review  of,  on  appeal,  see  Appeal  and  Error, 
949,  950. 

Due  process  of  law  in  statute  as  to,  see  Con- 
stitutional Law,  567. 

See  also  Carriers,  831. 

289.  The  measure  of  damages  for  the  neg- 
ligent loss  of  a  box  containing  books  and 
other  household  articles,  intrusted  to  a  rail- 
road company  for  transportation,  is  the 
value  of  the  books  alone,  where  the  box  was 
marked  "books"  by  the  shipper's  agent,  and 
was  accepted  in  the  belief  that  it  contained 
only  books,  and  the  charge  for  transporta- 
tion was  the  rate  for  books,  although  no 
fraud  on  the  carrier  was  intended.  Har- 
rington V.  Wabash  R.  Co.  23:  745,  122  N.  W. 
14,  108  Minn.  257.  (Annotated) 

290.  A  carrier  which  delivers  a  portion 
of  a  consignment  to  one  not  entitled  to  re- 
ceive it  is  not,  in  an  action  against  it  for 
damages  resulting  from  its  conversion,  en- 
titled to  credit  for  the  amount  which  had 
been  collected  from  the  bankrupt  estate  of 
the  one  receiving  the  property,  as  a  divi- 
dend, upon  the  value  of  the  portion  not  so 
delivered,  under  the  mistaken  belief  that 
the  whole  consignment  was  delivered  to 
him,  although  such  undelivered  portion 
was  subsequently  found  and  delivered  to 
the  proper  consignee.  Louisville  &  A.  R. 
Co.  V.  Hiram  Blow  &  Co.  26:  555,  124  S. 
W.  391,  136  Ky.  434. 

290a.  In    an    action    by    a    consignee    of 
54 


DAMAGES,  III.  d. 


tlirosliing  machines,  which  he  had  sokl  on 
commission,  to  recover  damages  from  a 
common  carrier  wliich  negligently  delayed 
the  goods  in  transit  and  converted  them  to 
its  use,  whereby  the  sales  were  canceled 
and  the  commission  lost,  the  price  for 
which  the  sales  were  made  is  the  proper 
measure  of  damages.  Missouri  P.  R.  Co. 
V.  Peru-Van  Zandt  Implement  Co.  6:  1058, 
85  Pac.  408,  73  Kan.  295. 
Discrimination  in  rates. 

291.  In  an  action  by  a  shipper  for  dam- 
ages for  discrimination  in  rates,  whether 
based  upon  the  common-law  or  the  statu- 
tory duty  not  to  discriminate  in  rates,  the 
shipper  may  recover  the  difference  between 
the  charges  exacted  of  him  and  those  ac- 
cepted from  the  most  favored  shipper,  and 
though  the  rates  charged  the  plaintiff  were 
those  established  by  law,  as  such  a  recov- 
ery neither  compels  the  defendant  to  com- 
mit a  second  wrong  nor  in  any  way  affects 
the  legally  established  rates.  Sullivan  v. 
Minneapolis  &  R.  R.  R.  Co.  45:  612,  142 
N.  W.  3,  121  Minn.  488. 

Livestock. 

Delay  in  furnishing  cars  for  stock,  see  supra, 
282. 

Duty  to  minimize  amount,  see  supra,  25. 

Statute  fixing  amount  of  recovery  for  de- 
lay, see  ACTION  OR  Suit,  48;  Constitu- 
tional Law,  565. 

Limitation  of  amount  of  carrier's  liability, 
see  Carriers,  933. 

Due  process  of  law  in  statute  as  to,  see  Con- 
stitutional Law,  565. 

Evidence  as  to  amount  of,  see  Evidence, 
1734. 

Interest  on  amount  recovered,  see  Interest, 
24. 

292.  The  measure  of  damages  for  injury 
to  horses  while  in  possession  of  a  carrier 
for  transportation,  which  have  been  redeliv- 
ered to  the  owner,  is  the  difference  in  their 
value  when  delivered  to  it  and  when  re- 
turned, whatever  the  form  of  remedy  sought. 
McKaban  v.  American  Express  Co.  35:  1046, 
95  N.  E.  785,  209  Mass.  270. 

293.  A  carrier  which  sells  live  stock  in- 
jured while  in  its  possession  for  transpor- 
tation without  any  contract  fixing  its  value 
is  liable  to  the  owner  for  the  difference  be- 
tween the  market  value  of  the  stock  just 
before  and  just  after  the  injury,  plus  the 
proceeds  of  the  sale  less  the  expenses  of  the 
sale  and  the  reasonable  cost  of  their  keep 
from  the  time  of  the  injury  to  the  time  of 
the  sale.  Cincinnati,  N.  O.  &  T.  P.  R.  Co. 
V.  Rankin,  45:  529,  156  S.  W.  400,  153  Ky. 
730. 

294.  A  carrier  which,  having,  for  purposes 
of  transportation,  contracted  for  a  fixed 
value  per  head  on  live  stock,  sells  it  after 
injury  for  more  than  the  value  fixed,  must 
account  to  the  owner  for  the  amount  re- 
ceived, less  the  expenses  of  sale,  and  the 
reasonable  cost  of  its  keep  between  the  time 
of  injury  and  sale.  Cincinnati,  N.  O.  &  T. 
P.  R.  Co.  v.  Rankin,  45:  529,  1.56  S.  W.  400, 
153  Ky.  7.30. 

295.  Failure  to  mention  shrinlcage  in 
weight  as  part  of  the  loss  for  injury  to  cat- 
Digest   1-52  L.R.A.(N.S.) 


tie  in  transit,  in  the  notice  of  loss  given  the 
carrier,  does  not  prevent  a  recovery  of  that 
element  of  damage  from  the  carrier,  if  the 
notice  given  specified  the  injury,  so  that  the 
carrier  could,  by  prompt  investigation,  have 
become  fully  informed  relative  thereto.  Car- 
stens  Packing  Co.  v.  Southern  P.  Co.  27: 
975,  108  Pac.  613,  58  Wash.  239. 
Baggage. 

Punitive  damages,  see  supra,  98,  99. 
Recovery  for  mental  suffering,  see  infra,  621. 
Double  damages,  see  infra,  732. 
Evidence    as    to    damages    from    failure    to 
transport  baggage,  see  Evidence,  1705. 

296.  The  measure  of  damages  recoverable 
from  a  carrier  for  loss  of  baggage  consist- 
ing of  wearing  apparel  is  not  its  market 
value,  but  its  value  for  use  by  the  owner. 
Louisville  &  N.  R.  Co.  v.  Miller,  50:  819, 
162  S.  W.  73,  156  Ky.  677. 

297.  The  value  of  personal  effects  for 
which  a  carrier  through  whose  negligence 
they  are  lost  is  liable  cannot  be  fixed  by 
what  they  would  bring  in  the  market,  but 
by  the  actual  value  to  the  owner,  taking 
into  account  the  cost,  practicability,  and  ex- 
pense of  replacing  them,  and  such  other  con- 
siderations as,  in  the  particular  case,  affect 
the  value.  Lloyd  v.  Haugh  &  K.  Storage  & 
T.  Co.  21:  188,  72  Atl.  516,  223  Pa.  148. 

298.  Damages  for  loss  of  baggage  by  a 
carrier  cannot  include  the  trouble  and  ex- 
pense of  trying  to  locate  it,  or  in  purchas- 
ing other  wearing  apparel  to  replace  that 
lost,  in  the  absence  of  notice  to  the  carrier 
at  the  time  of  delivering  the  baggage  to 
him  of  facts  which  would  render  special 
damages  probable.  Turner  v.  Southern  R. 
Co.  7:  188,  54  S.  E.  825,  75  S.  C.  58. 

(Annotated) 

299.  Loss  from  inability  to  sell  goods  be- 
cause of  delay  in  receiving  the  samples  must 
be  regarded  as  within  the  contemplation  of 
the  carrier  when  it  checks  a  salseman's 
samples  as  baggage,  so  as  to  enable  him  to 
recover  damages  therefor  in  case  of  such 
delay.  Webb  v.  Atlantic  Coast  Line  R.  Co. 
9:  1218,  56  S.  E.  954,  76  S.  C.  193. 

300.  The  proper  measure  of  damages  for 
the  failure  of  a  railway  company  to  deliver 
a  traveling  man's  trunk  containing  samples 
is  the  value  of  the  use  of  the  property  dur- 
ing the  delay,  including  such  incidental  ex- 
penses and  damages  as  were  in  the  contem- 
plation of  the  parties  when  the  contract  for 
carriage  was  entered  into.  Conheim  v.  Chi- 
cago G.  W.  R.  Co.  17:  1091,  116  N.  W.  581, 
104  Minn.  312. 

301.  A  sleeping  car  company  is  liable  for 
physical  suffering  and  mental  distress  of  a 
sick  passenger  caused  by  the  wrongful  act 
of  its  porter  in  taking  and  carrying  away 
a  receptacle  containing  the  medicines  and 
stimulants  provided  for  use  on  the  journey, 
which,  if  administered,  would  have  relieved 
the  distress.  Bacon  v.  Pullman  Co.  16:  578, 
159  Fed.  1,  89  C.  C.  A.  1. 


DAMAGES,  III.  e. 


851 


e.  Torts  generally;  hreacli  of  promise. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Punitive  damages,  see  supra,  32-40,  69-71. 

Recovery  for  mental  anguish,  see  infra,  III. 
o,  2. 

Loss  of  profits,  see  infra.  III.  p. 

Aggravation  of  damages,  see  infra.  III.  q. 

Review  of  discretion  as  to  refusal  of  new 
trial  for  inadequacy  of,  see  Appeal 
AND  Error,  677. 

Due  process  of  law  as  to,  see  Constitution- 
al Law,  566. 

302.  That  damages  naturally  flowing  from 
the  commission  of  a  tort  were  not  antici- 
pated by  the  wrongdoer  will  not  prevent  his 
being  held  responsible  therefor.  Kentucky 
Heating  Co.  v.  Hood,  22:  588,  118  S.  W.  337, 
133  Ky.  383. 

303.  The  measure  of  damages  for  the  un- 
warranted use  by  a  publishing  company  of 
uncopyrighted  manuscripts  and  stereotyped 
plates  intrusted  to  its  care  is  not  the  value 
of  the  books  produced,  but  the  value  of  the 
use  of  the  property  itself,  and  any  damage 
that  may  be  done  thereto  in  so  using  it;  or, 
if  the  use  amounts  to  a  conversion,  then  the 
measure  of  damages  will  be  the  value  of  the 
property  itself.  State  v.  State  Journal  Co. 
9:  174,  106  N.  W.  434,  75  Neb.  275. 

304.  The  measure  of  damages  in  an  ac- 
tion against  an  insurance  company  for  the 
negligence  of  its  agent  in  failing  to  forward 
an  application  for  insurance,  owing  to 
which  delay  the  property  is  destroyed  be- 
fore the  policy  is  issued,  is  the  amount  of 
insurance  which  the  applicant  but  for  this 
delay  would  have  had.  Boyer  v.  State 
Farmers'  Mut.  Hail  Ins.  Co.  40:  164,  121 
Pac.  329,  86  Kan.  442. 

305.  The  measure  of  damages  in  an  ac- 
tion by  an  insurance  company  against  its 
agent  for  loss  sustained  because  of  his  negli- 
gent failure  to  comply  with  instructions  to 
reduce  a  certain  policy  to  a  specified  amount 
is  the  amount,  with  interest,  which  the  com- 
pany was  obliged  to  pay  to  the  insured  un- 
der the  policy,  over  and  above  what  it  would 
have  been  obliged  to  pay  had  the  instruc- 
tions been  complied  with.  Queen  City  F. 
Ins.  Co.  v.  First  Nat.  Bank,  22:  509,  120 
N.  W.  545,  18  N.  D.  603. 

306.  Compensatory  damages  may  be  a- 
warded  against  the  employer  where  a  serv- 
ant, without  authority,  and  purposely,  to 
gratify  his  malice  towards  his  employer, 
adulterates  milk  intrusted  to  him  by  the 
master  for  delivery,  whereby  damage  to 
others  directly  and  necessarily  results. 
Stranahan  Bros.  Catering  Co.  v.  Coit,  4:  406, 
45  N.  E.  634,  55  Ohio  St.  398. 

307.  The  mere  fact  that  a  stranger  of- 
fered to  construct  a  railroad  siding  for  a 
certain  amount  before  the  entry  of  a  de- 
cree requiring  the  railroad  company  to  do 
so,  and  some  time  after  the  decree,  com- 
plainant was  compelled  to  pay  him  a  much 
larger  amount  for  the  work,  does  not  estab- 
lish the  liability  of  the  railroad  company 
Digest  1-52  L.R.A.(N.S.) 


for  the  difference,  especially  where  there  is 
nothing  to  show  when  demand  was  made 
upon  it  or  its  duty  began.  Closer  v.  Pliila- 
delphia,  H.  &  P.  R.  Co.  40:  519,  82  Atl.  362, 
233   Pa.   259. 

308.  The  damages  for  failure  to  allot 
dower  out  of  a  gravel  pit  are  tlie  amount 
which  the  dowcress  could  have  secured  by 
the  reasonable  use  of  her  share  of  the  prop- 
erty during  the  period  had  she  been  in 
possession  of  it.  McAllister  v.  Dexter  &  P. 
R.  Co.  29:  726,  76  Atl.  891,  106  Me.  371. 
Causing  loss  of  position. 

309.  A  foreman  who  loses  his  position  as 
such,  because  of  an  unauthorized  strike  of 
employees  to  secure  his  removal,  may  re- 
cover damages  against  those  who  personally 
participated  in  it,  not  only  for  his  loss  of 
wages,  but  for  any  damage  to  liis  reputation 
as  such  employee,  which  is  in  fact  caused  by 
the  strike.  DeMinico  v.  Craig,  42:1048,  94 
N.  E.  317,  207  Mass.  593. 

310.  One  who  wrongfully  secures  an- 
other's disciiarge  from  his  employment  in  a 
business  where  opportunities  of  obtaining 
remunerative  work  are  limited  is  liable  for 
the  full  value  of  his  contract  of  service,  al- 
though it  was  merely  at  will,  including  any 
loss  of  time  attributable  to  the  wrongful 
acts,  as  well  as  for  mental  distress  because 
of  the  predicament  in  which  he  found  him- 
self. Lopes  V.  Connolly,  38:  986,  97  N.  E. 
80,  210  Mass.  487. 

Suspension  from  school. 

311.  One  whose  son  is  unlawfully  sus- 
pended from  a  public  school  for  a  period  of 
only  twenty  days  cannot  hold  those  re- 
sponsible for  the  suspension  liable  for  the 
cost  of  his  tuition  in  another  district  for 
a  whole  term.  Douglas  v.  Campbell,  20:205, 
116  S.  W.  211,  89  Ai-k.  254. 
Unautliorized  operation. 

312.  A  patient  who  had  consented  to  an 
operation  on  her  foot  on  condition  that  no 
bones  be  removed  is  not  confined  to  nominal 
damages  for  the  removal  of  a  sesamoid 
bone,  although  all  the  expert  testimony  Is 
to  the  effect  that  the  sesamoid  bone  serves 
no  useful  purpose  in  the  foot,  where  there 
is  testimony  that  the  foot  is  more  or  less 
deformed  since  the  operation  and  causes 
constant  pain.  Rolater  v.  Strain,  50:  880, 
137  Pac.  96,  39  Okla.  572. 
Enticement    or    abduction     of     child. 

313.  Compensatory  damages  only  can  be 
awarded  for  enticing  a  daughter  from  her 
mother,  and  concealing  her  in  a  school. 
Magnuson  v.  O'Dea,  48:  327,  135  Pac.  640, 
75  Wash.  574. 

314.  $19,033  is  so  grossly  excessive  as 
to  indicate  passion  and  prejudice  when 
awarded  as  damages  for  enticing  a  daugh- 
ter from  her  mother  and  concealing  her 
in  a  Catholic  school  for  nine  months,  dur- 
ing which  the  mother  expended  $3,000  in 
finding  her.  Magnuson  v.  O'Dea,  48:  327, 
135  Pac.  640,  75  Wash.  574. 

315.  The  damages  for  abduction  of  a  mi- 
nor child  are  not  limited  to  loss  of  serv- 
ice, but  include  compensation  for  exjienses 
and  injury,  and  punitive  damages  for  the 
wrong  done  the  parent  in  his  affections  and 


852 


DAMAGES,  III.  f. 


the  destruction   of  his  household.     Howell 

V.  Howell,  45:  867,  78  S.  E.  222,  162  N.  C. 

283. 

Marine  torts. 

310.  One    injured    by    the    negligent    ob- 
struction of  a  navigable  river  by  a  railroad 
company    so   that,    while    barges    can    pass, 
steamboats  cannot,  is  entitled  to  recover,  as 
an  element   of   damage,   the   additional   ex- 
pense  of   maintaining   an    extra   steamboat 
above   the  obstruction,     Pharr   v.   Morgan's 
Louisiana  &  T.  R.  &  S.  S.  R.  Co.   10:  710, 
38  So.  043,  115  La.  138. 
Breach  of  promise. 
Punitive  damages,  see  supra,  29,  44-46. 
Mitigation  of,  see  infra,  718,  719. 
Aggravation  of,  see  infra,  729,  730. 
Change  of  rule  of  law  as  to,  see  Courts,  302. 
Proof  of  seduction  in  action  for  breach  of 

promise,  see  Evidence,  1813,  2015. 
Allegations  as  to,  see  Plkading,  207. 

317.  Compensatory  damages  cannot  be  re- 
covered in  an  action  for  breach  of  promise 
on  the  ground  of  a  defense  set  up  by  the 
defendant,  since  the  wrong,  if  any,  in  set- 
ting up  a  defense,  is  entirely  separate  from 
the  breach  of  promise.  Hively  v.  Golnick, 
49:  757,  144  N.  W.  213,  123  Minn.  498. 

318.  In  determining  the  amount  to  be 
awarded  a  plaintiff  in  a  breach-of-promise 
action,  the  loss  of  opportunity  during  the 
engagement  for  contracting  a  suitable  mar- 
riage with  another  may  be  considered.  Hive- 
ly V.  Golnick,  49:  757,  144  N.  W.  213,  123 
Minn.  498. 

319.  Injury  to  the  health  of  a  plaintiff 
in  a  breach-of-promise  action  may  be  consid- 
ered on  the  question  of  damages  where  there 
is  some  evidence  in  the  record  to  justify  the 
finding  that  her  health  was  injured  by  de- 
fendant's refusal  to  perform  his  contract, 
Hively  v,  Golnick,  49:  757,  144  N.  W.  213, 
123  Minn.  498. 

320.  In  an  action  for  damages  for  breach 
of  a  promise  of  marriage,  where  the  facts 
and  circumstances  and  the  reasonable  in- 
ferences therefrom  warrant,  the  jury  may 
properly  be  instructed  to  take  into  con- 
sideration, in  assessing  the  damages,  the 
financial  circum.stances  and  social  position 
of  defendant;  the  rights  and  privileges 
plaintiff  would  have  acquired  pecuniarily 
and  socially  if  defendant  had  performed  his 
contract;  the  worldly  advantage  of  the 
marriage  as  giving  plaintiff  a  permanent 
home  and  advantageous  establishment;  the 
station  in  life  plaintiff  would  have  occu- 
pied as  a  result  of  the  marriage;  the  in- 
juries and  wounds  to  plaintiff's  feelings, 
affection,  and  pride;  the  disappointment, 
humiliation,  mortification,  contempt,  pain, 
and  distress  of  mind  plaintiff  suffered  at 
the  loss  of  the  marriage;  and  the  injury 
to  plaintiff's  reputation,  moral  or  physical, 
and  future  prospects  of  marriage.  Kendall 
V.  Dunn,  43:  556,  76  S.  E.  454,  71  W.  Va.  262. 

f.  Fraud. 

(See  also   same   heading  in  Digest  L.R.A. 
1-10.) 

Punitive  damages,  see  supra,  50. 
Bigest  1-52  I^.R.A.CN.S.) 


321.  One  third  of  the  present  value  of  the 
property  is  not  the  jiroper  measure  of  dam- 
ages in  case  a  parent  induces  a  woman  to 
marry  her  son  by  fraudulently  represent- 
ing that  the  son  is  the  owner  of  a  sjxiciHed 
parcel  of  real  estate.  Beach  v.  Beach,  46: 
98,  141  N,  W.  921,  160  Iowa,  346. 

322.  The  damages  to  be  recovered  from  an 
architect  for  fraud  in  securing  a  contract 
to  plan  and  supervise  the  erection  of  a 
building,  by  falsely  misrepresenting  his  abil- 
ity to  do  so  and  by  understating  the  cost, 
is  the  commission  received  by  him,  which 
is  of  no  value  to  the  owner,  and  the  cost 
in  excess  of  the  estimate  above  the  amount 
which  could  profitably  be  invested  in  the 
building.  Edward  Barron  Estate  Co.  v. 
Woodruff  Co.  42:  125,  120  Pac.  351,  163 
Cal.  561. 

323.  The  measure  of  damages  for  false 
representations  as  to  the  circulation  of  a 
newspaper  to  effect  a  sale  is  the  difference 
in  the  cash  receipts  of  the  business  as  it  ac- 
tually was  and  as  they  would  have  been  had 
the  circulation  been  as  represented.  Smith 
V,  Werkheiser,  15:  1092,  115  N,  W,  964,  152 
Mich,  177. 

324.  In  an  action  for  fraud  or  deceit  based 
on  an  unperformed  agreement  made  by  a 
creditor  with  the  secret  intention  of  not 
performing  it,  to  induce  a  debtor  to  secure 
the  indebtedness  on  a  stock  of  goods,  that 
he  would  not  permit  the  property  to  be  sold 
under  foreclosure  for  less  than  a  certain 
sum,  the  measure  of  damages  is  the  differ- 
ence between  the  price  the  goods  brought 
on  foreclosure  sale  and  their  market  value, 
not  exceeding  the  sum  fixed  in  the  agree- 
ment. Cerny  v.  Paxton  &  G.  Co.  10:  640, 
110  N.  W.  882,  78  Neb,  134. 

On  sale  or  exchange  of  real  property. 

325.  The  damages  for  misrepresenting  the 
value  of  property  exchanged  for  other  prop- 
erty is  the  difference  between  what  the 
value  of  the  property  would  have  been  had 
it  been  as  represented,  and  what  it  actually 
was,  regardless  of  the  value  of  the  property 
given  in  exchange  for  it.  Stoke  v.  Con- 
verse, 38:  465,  133  N,  W,  709,  153  Iowa,  274. 

(Annotated) 

326.  One  who  has  resold  property  which 
he  procured  with  knowledge  of  the  insanity 
of  his  grantor  may  be  compelled  to  pay 
over  to  such  grantor  the  difference  between 
the  amounts  paid  and  received  by  him,  less 
what  he  has  rightfully  paid  for  the  pro- 
tection of  the  property.  Sprinkle  v.  Well- 
born, 3:  174,  52  S.  E.  606,  140  N,  C.  163, 

327.  The  value  of  standing  timber  the 
sale  of  which  is  procured  by  fraud,  to  which 
the  grantor  is  entitled  by  way  of  damages 
for  the  fraud,  is  not  limited  to  the  market 
value  in  the  absence  of  any  evidence  of  a 
market  in  which  the  value  could  be  fixed; 
but  the  grantor  is  entitled  to  recover  the 
real  value  of  the  timber  as  it  stood  at  the 
date  of  the  deed,  Griffni  v,  Roanoke  R,  & 
Lumber  Co.  6:  463,  53  S.  E.  307,  140  N.  C. 
514, 

328.  In  case  a  promoter  owns  property 
before  he  undertakes  the  organization  of  a 
corporation    to    purchase    it,    the    amount 


DAMAGES,  III.  g. 


853 


which  the  corporation  can  recover  for  secret 
profits  secured  by  him  in  the  sale  is  not 
measured  by  the  difference  between  what 
the  property  originally  cost  him,  and  the 
market  value  of  the  stock  received  by  him; 
nor  between  the  intrinsic  value  of  the  prop- 
erty and  that  of  the  stock,  but  by  the  dif- 
ference between  the  market  value  of  the 
property  and  that  of  the  stock.  Old  Domin- 
ion Copper  Min.  &  Smelting  Co.  v.  Bigelow, 
40:  314,  89  N.  E.   193,  203  Mass.   159. 

329.  In  an  action  for  damages  for  fraud 
which  induced  an  exchange  of  property,  the 
measure  of  damages  is  not  the  difference 
between  the  value  of  the  property  received 
and  what  it  would  have  been  had  the  repre- 
sentations been  true,  but  the  difference  be- 
tween the  value  of  the  property  received  and 
that  parted  with.  George  v.  Hesse,  8:  804, 
93  S.  W.  107,  100  Tex.  44.  (Annotated) 
In  borse  trade. 

330.  If  one  who,  in  trading  horses,  de- 
frauded the  other  party,  substitutes  another 
animal  for  the  one  originally  transferred, 
upon  complaint  of  the  party  defrauded,  the 
measure  of  damages  in  case  the  latter  ani- 
mal is  not  as  represented  is  merely  the 
difference  between  the  value  which  the  sub- 
stituted animal  would  have  had  had  it  been 
as  represented  and  what  it  in  fact  was,  and 
damages  cannot  be  awarded  upon  both  tran- 
sactions. Robertson  v.  Halton,  37:  298,  72 
S.  E.  31G,  156  N.  C.  215. 

On  sale  of  corporate  stock. 
Evidence  as  to,  see  Evidence,  1662. 

331.  The  damages  for  misrepresenting  the 
facts  affecting  the  value  of  the  stock  of  a 
corporation  which  results  in  a  sale  of  it, 
are  the  difference  between  the  actual  value 
and  Avhat  it  would  have  been  if  the  facts 
were  as  represented,  and  not  the  difference 
between  the  actual  value  and  the  contract 
price.  Chapman  v.  Bible,  43:  373,  137  N. 
W.  533,  171  Mich.  063.  (Annotated) 

g.  Assault;  seduction;  false  imprison- 
ment; malicious  prosecution; 
abuse  of  process. 

(See  also   same  heading  in  Digest  L.R.A. 
1-10.) 


Assault. 

On  passenger,  see  supra,  78-81,  90;   infra, 
409,  613,  614. 

Punitive  damages,  see  supra,  51-55,  78-81, 
90. 

Recovery  for  mental  anguish,  see  infra,  613, 
614,  622,  633,  634. 

Increasing  or  reducing  on  appeal,  see  Ap- 
peal AND  Ebbob,  1596,  1597. 

Evidence  as  to,  see  Evidence,  1743. 

Evidence  in  mitigation  of  damages,  see  Evi- 
dence, 2011,  2012. 

i^ew    trial    for    insufficiency    of,    see    New 
Teial,  35. 
332.  There  is  no  reason  why  the  amount 

of  damages  for  an  assault  by  an  officer  in 

making   an    unjustifiable    arrest    should    be 

less  than  if  the  assault  had  been  committed 

Digest   1-52  L.R.A.(N.S.) 


by    a    citizen.      Stoehr    v.    Payne,    44:  604, 

61  So.  206,  132  La.  213. 

Seduction. 

Punitive  damages,  see  supra,  47,  48. 

333.  The  damages  recoverable  for  seduc- 
tion of  an  illegitimate  child,  by  one  stand- 
ing in  loco  parentis,  are  such  in  character 
as  may  be  recovered  by  a  natural  parent. 
Tittlebaum  v.  Boehmcke  (N.  J.  Err.  &  App. ) 
35:  1062,  80  Atl.  323,  81  X.  J.  L.  697. 

334.  The  jury  may  be  permitted  to  con- 
sider the  financial  condition  of  defendant 
in  an  action  to  recover  damages  for  seduc- 
tion. Luther  v,  Shaw,  52:  85,  147  N.  W. 
18,   157   Wis.   234. 

False  imprisonment;  malicious  prose- 
cution. 

Of  passenger,  see  supra,  82. 

Punitive,  see  supra,  82. 

Recovery  for  mental  suffering,  see  infra, 
620. 

Instructions  as  to,  see  Appeal  and  Ebbob, 
1364. 

335.  The  risk  of  conviction  is  not  an  ele- 
ment of  damages  for  malicious  prosecution 
resulting  in  illegal  arrest.  Seidler  v.  Burns, 
33:  291,  79  Atl.  53,  84  Conn.   111. 

336.  One  maliciously  prosecuting  another 
which  results  in  his  arrest  is  not  answer- 
able in  damages  for  physical  suffering 
caused  by  cold,  want  of  bed,  or  deprivation 
of  food,  due  to  acts  of  persons  over  whom 
he  had  no  control,  and  which  he  had  no 
reason  to  anticipate.  Seidler  v.  Burns,  33: 
291,   79   Atl.   53,   84   Conn.    111. 

(Annotated) 

337.  Four  thousand  dollars  is  an  excessive 
award  of  damages  for  malicious  prosecution 
of  one  for  obtaining  property  by  false  pre- 
tenses where  there  is  a  substantial  reason 
for  believing  that  he  obtained  the  property 
unjustly  and  deceitfully  with  intent  to  de- 
fraud, and  that  he  still  retains  it,  and  the 
prosecution  failed  because  of  an  incorrect 
charge  of  the  alleged  pretense.  Davis  v. 
McMillan,  3:  928,  105  N.  W.  862,  142  Mich. 
391. 

338.  A  verdict  of  $250  for  false  imprison- 
ment is  not  excessive  where  the  plaintiff,  a 
woman,  was  detained  in  an  office  against 
her  will  for  three  quarters  of  an  hour,  a 
threat  being  made  to  call  the  sheriff;  and 
where  there  were  many  persons  in  the  of- 
fice and  about  the  building;  and  where  she 
was  greatly  mortified,  was  made  nervous 
by  the  shock,  and  did  not  leave  her  house 
for  a  week  afterwards.  Kroeger  v.  Pass- 
more,  14:  988,  93  Pac.  805,  36  Mont.  504. 

339.  A  verdict  of  $4,000  in  favor  of  a  fe- 
male guest  of  a  hotel  for  injuries  resulting 
from  her  being  aroused  in  the  night  by  the 
night  clerk,  who  used  force  and  violent  lan- 
guage, and  summoned  a  policeman  to  arrest 
her  and  place  her  in  jail,  is  not  so  excessive 
as  to  indicate  passion  or  prejudice  on  the 
part  of  the  jury,  calling  for  a  reversal. 
Lehnen  v.  Hines,  42:  830,  127  Pac.  612,  88 
Kan.  58. 

Abuse  of  process. 
Punitive,  see  supra,  56-60. 

340.  In  an  action  for  abuse  of  process  by 
malicious  attachment,  damages  may  be  re- 


854 


DAMAGES,  III.  h,  i,  1. 


covered  for  injury  to  business,  reputation, 
and  feelings.  Malone  v.  Belcher,  49:  753, 
103  N.  E.  637,  216  Mass.  209. 

h.  liibel  or  slander;  insult. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Nominal  damages,  see  supra,  8. 

Punitive  damages,  see  supra,  41-43;  Libel 
AND  Slander,  180. 

Mental  anguish  for,  see  infra,  635,  636. 

Mitigation  of  damages,  see  infra,  720-724. 

Evidence  as  to,  see  Evidence,  1631,  1730- 
1733. 

Evidence  in  mitigation  of,  see  Evidence, 
2013,  2014. 

Statute  limiting  recovery  to  actual  dam- 
ages where  libel  is  retracted,  see  Libel 
and  Slander,  156. 

Special  damage  as  element  of  action,  see 
Libel  and  Slander,  88,  160-162. 

Allegation  as  to,  see  Pleading,  218-220. 

Demurrer  to  complaint  in  libel  suit  on 
ground  of  demand  for  excessive  dam- 
ages, see  Pleading,  623. 

Question  for  jury  as  to  sufficiency  of  retrac- 
tion in  libel  case,  see  Trial,  340. 

341.  A  judgment  for  $3,000  in  an  action 
for  libel  against  an  insurance  company  by 
one  whose  regular  employment  was  that 
of  a  boiler  maker,  at  which  he  earned  a 
little  more  than  $80  per  montli,  and  who 
solicited  insurance  for  defendant  and  other 
companies  at  other  times  at  which  he  real- 
ized from  $150  to  $200  per  month,  is  not 
excessive  where,  after  the  publication  of 
the  libel  complained  of,  the  insurance  busi- 
ness was  substantially  destroyed.  Bigley  v. 
National  Fidelity  &  C.  Co.  50:  1040,  144  N. 
W.  810,  94  Neb.  813. 

342.  Where,  in  an  action  in  damages  for 
false  statements  as  to  the  plaintiff's  in- 
solvency, it  is  shown  that  the  defendant  in 
a  rather  exultant  manner  falsely  stated  to 
different  persons  that  the  plaintiff,  a  mer- 
chant, had  failed  in  business,  and  that  the 
defendant  had  seen  the  bankrupt  papers 
in  the  court,  and  it  appeared  that  the  plain- 
tiff was  injured  in  his  business  as  the  con- 
sequence of  such  false  statement,  and  a 
judgment  for  $5,000  is  rendered,  the  amount 
is  not  so  large  as  to  call  for  interference 
by  the  appellate  court.  Wolkowsky  v.  Gar- 
funkel,  44:  351,  60  So.  791,  65  Fla.  10. 

(Annotated) 
.343.  One  is  entitled  to  such  damages  on 
account  of  injured  feelings  from  the  publi- 
cation of  a  libel  against  him  as  must  un- 
avoidably be  inferred  from  its  nature,  not- 
withstanding the  intentions  of  the  publisher 
were  good  and  no  special  damages  are 
proved.  Levert  v.  Daily  States  Pub.  Co. 
23:726,  49  So.  206,  123  La.  594. 

344.  A  property  owner  who,  acting  upon 
probable  cause,  calls  the  attention  of  the 
police  to  a  suspicious  house  in  his  neigh- 
borhood, and  asks  an  investigation,  is  not 
answerable  in  damages  for  the  acts  of  the 
police  in  making  a  public  investigation  and 
Digest  1-52  ]:i.R.A.(N.S.) 


humiliating    the    occupants    of    the    house. 
Hyatt  V.  Lindner,  48:  256,  63  So.  241,  133 
La.  014. 
Libelous  telegram. 

345.  Upon  the  question  of  damages  for 
publication  of  a  libel  by  transmitting  it 
through  the  offices  of  a  telegraph  company, 
a  statute  may  be  considered  which  makes  it 
a  misdemeanor  for  an  employee  of  the  tele- 
graph company  to  disclose  the  contents  of  a 
message.  Western  U.  Teleg.  Co.  v.  Cash- 
man,  9:  140,  149  Fed.  367,  81  C.  C.  A.  6. 
Insult. 

346.  An  appellate  court  will  not  interfere 
with  an  award  of  $6,000  against  a  railroad 
company  as  actual  and  punitive  damages  for 
the  application  of  the  vilest  and  most  in- 
sulting epithets  by  its  agents  to  a  youth 
who  enters  its  office  to  collect  money  due 
him  for  labor  performed.  Yazoo  &  M.  V. 
K.  Co.  V.  May,  44:  1138,  61  So.  499,  104 
Miss.  422.  (Annotated) 

i.  Personal  injuries;  death. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

As  to  nominal  damages,  see  supra,  14. 

Punitive  damages,  see  supra,  63-66. 

Recovery  for  mental  anguish,  see  infra.  III. 
o,  1. 

Loss  of  profits,  see  infra,  675. 

Review  of,  on  appeal,  see  Appeal  and 
Error,  945-947. 

Reversible  error  in  admission  of  evidence, 
see  Appeal  and  Error,  1168. 

Instruction  as  to,  see  Appeal  and  Error, 
1365-1369;    Trial,   889-892,   997-1003. 

Prejudicial  error  as  to,  see  Appeal  and  Er- 
ror, 1365-1369,  1544. 

New  trial  for  error  as  to,  see  Appeal  and 
Error,  1619,  1620;  New  Trial,  33,  34. 

Opinion  evidence  as  to,  see  Evidence,  1119, 
1120. 

Relevancy  of  evidence  as  to,  see  Evidence, 
1572,  1685,  1709-1724. 

Admissibility  of  evidence  under  pleadings, 
see  Evidence,  2436. 

Liability  for  injuries  due  to  fright,  see 
Fright. 

Limiting  damages  to  those  specified  in 
notice  of  injury,  see  Highways,  398. 

Right  to  interest  on,  see  Interest,  25. 

Sufficiency  of  allegations  as  to,  see  Plead- 
ing, 216,  217. 

See  also  supra,  256. 

347.  While  there  should  be  some  simi- 
larity in  the  awards  of  damages  for  like 
injuries,  still  there  is  no  exact  rule  for 
the  measurement  of  damages,  and  the  facts 
of  each  case  must  be  the  basis  on  which 
the  amount  in  each  case  is  predicated.  Mc- 
Mahon  v.  New  Orleans  R.  &  L.  Co.  32:346, 
53  So.  857,  127  La.  544. 

348.  Where  an  injury  has  been  received 
by  the  servant  on  account  of  the  negligence 
of  the  master,  damages  should  be  computed 
and  ascertained  and  awarded  on  the  basis. 


DAMAGES,  III.  i,  1. 


855 


nearly  as  possible,  of  compensating  the  I 
vant  for  the  pain,  suffering,  and  loss  he  ' 


as 

servant  lor  tiie  pa 
has  sustained  and  will  sustain  in  the  future 
on  account  of  the  injury;  and  he  should  be 
placed,  as  nearly  as  it  is  possible  to  esti- 
mate, in  as  good  a  position  as  he  was  in 
before  the  injury  was  inflicted.  Maloney 
V.  Winston  Brothers  Co.  47:  634,  111  Pac. 
lOSO,  18  Idaho,  740. 

349.  The  amount  to  be  awarded  plaintiff 
in  an  action  for  damages  for  personal  in- 
jury cannot  be  affected  by  the  suggestion 
or  consideration  that  the  defendant  com- 
pany has  been  placed  in  the  hands  of  a  re- 
ceiver, and  that  the  plaintiff  will  realize 
only  a  small  per  cent  of  his  claim.  Rogers 
V.  Hiram  J.  Allen  Lumber  Co.  39:  202,  57 
So.  166.  129  La.  900. 

350.  The  cost  of  a  major  internal  surgical 
operation,  though  in  the  opinion  of  surgeons 
it  will  restore  one  physically,  has  no  ten- 
dency to  measure  such  person's  damages  for 
injury  to  his  person.  Maroney  v.  Minne- 
apolis &  St.  L.  R.  Co.  49:  756,  144  N.  W. 
149,  123  Minn.  480. 

351.  Tlie  damages  which  a  woman  may  re- 
cover for  the  negligence  of  a  physician  in 
reducing  a  fracture  of  her  arm  so  that  it  re- 
mains crooked  are  reasonable  compensation 
for  bodily  pain  and  mental  suffering,  and 
permanent  impairment  of  ability  to  earn 
money,  which  are  the  natural  and  proximate 
results  of  the  negligence.  Dorris  v.  War- 
ford,  9:1090,  100  S.  W.  312,  124  Ky.  768. 

352.  In  fixing  the  damages  for  a  personal 
injury,  the  jury  may  consider  the  testimony 
of  plaintiff  and  some  of  his  witnesses  that 
his  leg  was  injured,  although  there  is  evi- 
dence in  the  case  that  there  was  no  injury 
to  the  leg  further  than  an  enlargement  of 
glands  in  the  groin.  Christy  v.  Elliott, 
i:  215,  74  N.  E.  1035,  216  111.  31. 

353.  Damages  for  decreased  earning  ca- 
pacity of  a  traveling  salesman  by  reason  of 
an  accident  cannot  be  based  on  the  facts  that 
he  was  made  lame  thereby  and  could  not 
visit  his  customers  as  readily,  and  that  he 
had  to  employ  an  assistant,  where  it  does 
not  appear  what  he  earned  under  these  con- 
ditions. Diamond  Rubber  Co.  v.  Harryman, 
15:  775,  92  Pac.  922,  41  Colo.  415. 

354.  Gross  commissions  received  by  a 
salesman  are  not  competent  in  any  event  as 
a  basis  for  estimating  probable  earnings 
while  he  is  incapacitated  for  work  by  reason 
of  an  accident;  nor  are  his  commissions  for 
the  sale  of  cigars  in  one  employment  a  suit- 
able basis  for  estimating  such  probable  earn- 
ings in  another  employment  for  the  sale  of 
a  different  brand  of  cigars  in  a  different 
territory.  Diamond  Rubber  Co.  v.  Harry- 
man,  15:  775,  92  Pac.  922,  41  Colo.  415. 

355.  The  jury  may  be  permitted  to  con- 
sider the  possible  permanence  of  injuries 
as  an  element  of  damages  to  be  awarded  for 
negligence,  upon  the  evidence  of  experts 
that  in  their  best  judgment  the  injuries  are 
permanent.  South  Covington  &  C.  Street 
R.  Co.  v.  Hardy,  44:  32,  153  S.  W.  474,  152 
Ky.   374. 

356.  The  damages  to  be  recovered  from 
the  keeper  of  a  public  eating  place  who 
Digest  1-S2  i:..R.A.(N.S.) 


serves  deleterious  food  to  guests,  with  im- 
puted but  not  actual  knowledge  of  its  un- 
lit character,  may  include  an  allowance  for 
the  suffering  and  expense  due  to  the  re- 
sulting illness  of  the  customer.  Doyle  v. 
Fuerst  &  Kraemer,  40:  480,  56  So.  906,  129 
La.  838. 

357.  Proof  of  pain  and  suffering  following 
the  removal  of  a  woman's  uterus  is  not  nec- 
essary to  render  them  an  element  of  dam- 
ages against  the  one  performing  the  opera- 
tion, since  they  are  inferred  by  law.  Pratt 
v.  Davis,  7:  609,  79  N.  E.  562,  224  111.  300. 

358.  Damages  cannot  be  allowed  for  per- 
manent injury  to  one's  eyes  through  an- 
other's negligence,  notwithstanding  they  are 
shown  to  be  chronically  sore,  if  there  is 
nothing  to  show  that  they  might  not  soon 
be  cured  if  properly  treated.  Louisville  & 
N.  R.  Co.  v.  Eaden.  6:  581,  93  S.  W.  7,  122 
Ky.  818. 

359.  That  the  expense  might  have  been 
minimized  by  the  selection  of  a  physician 
of  higher  skill  to  attend  one  injured  by 
another's  negligence  does  not  relieve  the 
latter  from  liability  to  make  good  the  ex- 
pense incurred  for  such  attention,  if  rea- 
sonable care  was  exercised  in  the  selection 
of  a  physician  and  in  following  his  direc- 
tions. Hunt  V.  Boston  Terminal  Co.  48:116, 
98  N.  E.  786,  212  Mass.  09.  (Annotated) 
Medical     services;     nursing;     loss     of 

time. 

Necessity  of  specifically  alleging  loss  of 
time  and  medical  expenses,  see  Plead- 
ing, 208. 

Instructions  as  to,  see  Trial,  998,  999. 

See  also  infra,  367,  378. 

360.  Tliat  services  rendered  by  physicians 
to  one  injured  by  another's  negligence 
proved  to  have  been  unnecessary  in  fact 
does  not  relieve  the  person  responsible  for 
the  injury  from  the  necessity  of  paying  for 
them,  if,  in  the  light  of  the  facts  known  at 
the  time  they  were  rendered,  they  seemed 
wise.  Hunt  v.  Boston  Terminal  Co.  48:  116, 
98  N.  E.  786,  212  Mass.  99. 

361.  Direct  evidence  of  the  value  of  a 
physician's  services  in  treating  one  injured 
by  another's  negligence  is  not  necessary  to 
authorize  an  allowance  therefor  against  the 
person  responsible  for  the  injury,  where  the 
fact  of  his  employment  and  the  nature  and 
extent  of  the  treatment  are  shown,  but  the 
jury  may  fix  the  value  from  their  own 
knowledge  and  experience.  Moran  v.  Dover, 
S.  &  R.  Street  R.  Co.  19:  920,  69  Atl.  884,  74 
N.   H.  500.  (Annotated) 

362.  The  damages  to  be  allowed  for  in- 
juries caused  by  the  bite  of  a  vicious  dog 
may  include  the  expense  of  securing  Pasteur 
treatment.  Avers  v.  Macoughtry,  37:  865, 
117  Pac.   1088,'  29  Okla.  399. 

363.  A  spectator  injured  at  a  baseball 
game  who  is  entitled  to  recover  of  the  man- 
agement for  such  injuries  is  entitled  to  re- 
cover as  special  damages  the  reasonable 
value  of  the  nursing  necessitated  on  account 
of  the  injury,  notwithstanding  such  nursing 
was  rendered  by  a  member  of  the  family 
without  expectation  of  payment.  Wells  v. 
Minneapolis  Baseball  &  A.  Asso.  46:  606,  142 
N.  W.  706,  122  Minn.  327. 


856 


DAMAGES,  III.  i,  1. 


364.  Expenses  incurred  by  an  injured  pas- 
senger, which  resulted  from  tlie  injuries,  in- 
cluding coiiiponsation  for  services  of  nurses, 
are  proper  elements  of  damages  in  an  ac- 
tion ugaiiist  the  carrier  in  such  a  case,  not- 
withstanding the  services  were  performed 
by  a  member  of  the  family  of  the  injured 
person,  if  the  services  were  necessary  and 
the  charges  reasonable.  Lewark  v.  Park- 
inson, 5:  1069,  85  Pac.  GOl,  73  Kan.  553. 

365.  The  necessary  expense  of  one  injured 
by  another's  wrong,  and  of  a  necessary  at- 
tendant, in  undertaking  a  journey  on  a 
physician's  advice  for  his  recovery,  maj 
form  part  of  the  damages;  but  not  expenses 
in  traveling  about  the  country  generally. 
Kirk  V.  Seattle  Electric  Co.  31:991,  lOS 
Pac.  604,  58  Wash.  283. 

366.  In  determining  the  compensation  to 
be  awarded  for  a  negligent  injury  to  one 
conducting  a  business  of  his  own,  the  jury 
may  consider  the  value  of  his  time  or  serv- 
ices in  such  business  during  the  time  he 
was  compelled  to  be  away  from  it  by  the 
injury,  and  their  diminished  value  while 
he  could  work  only  part  time.  Union  De- 
pot &  R.  Co.  V.  Londoner,  33:  433,  114  Pac. 
316,  50  Colo.  22. 

Recovery  by  parent. 
For  death,  see  infra,  304-399. 
Judicial  notice  as  to  value  of  child's  serv- 
ices, see  Evidence,  57. 
Question  for  jury  as  to,  see  Trial,  657-061. 

367.  A  mother  may  recover  from  one  neg- 
ligently injuring  her  daughter  for  services 
in  nursing  the  daughter  which  are  in  ex- 
cess of  the  ordinary  services  which  she 
would  be  bound  to  render  a  minor  child. 
Simone  v.  Rhode  Island  Co.  9:  740,  66  Atl. 
202,  28   R.   I.   186. 

Recovery  by  infant. 

Instances   of   amount,   see  infra,   416,   425, 

430. 
Evidence  on  question  of,  see  Evidence,  1717. 
Infant's  right  to  recover  for  loss  of  service 

during  minority,  see  Infants,  55. 

368.  In  an  action  to  recover  damages  for 
personal  injuries,  a  minor  cannot  recover 
compensation  for  impaired  capacity  to  pur- 
sue the  ordinary  vocations  of  life  prior  to 
his  majority,  unless  it  be  alleged  and  proved 
that  he  has  been  given  his  liberty  and  that 
his  parents  do  not  claim  the  right  to  re- 
ceive such  compensation.  McClain  v.  Lewis- 
ton  Interstate  Fair  &  R.  Asso.  25:  691,  104 
Pac.  1015,  17  Idaho,  63. 

Refusal   to    seek    medical    or   surgical 
relief. 

369.  If  the  otherwise  permanent  effect  of 
a  personal  injury  can  be  relieved  by  a  sim- 
ple surgical  operation  which  an  ordinarily 
prudent  man  should  undergo,  that  fact 
should  be  taken  into  consideration  in  award- 
ing damages,  as  tending  to  show  the  actual 
damages  sustained.  Leitzel  v.  Delaware, 
L.  &  W.  R.  Co.  48:  114,  81  Atl.  543,  232  Pa. 
475. 

370.  Where  one  has  been  injured,  but  is 
advised  by  competent  physicians  that  the 
injury  can  be  remedied  by  an  operation  that 
is  ordinarily  not  dangerous,  but  refuses  to 
submit  to  the  operation,  she  cannot  recover 
Digest  1-52  I..R.A.(N.S.> 


for  the  sufferings  which  would  be  avoided 
by  the  needed  opcrarion.  Donovan  v.  Xew 
Orleans  R.  &  L.  Co.  48:  109,  61  So.  216,  132 
La.  2.39.  (Annotated) 

371.  Refusal  to  submit  to  a  second  opera* 
tion  to  remedy  the  effect  of  a  personal  in- 
jury, which  would  be  serious  and  attended 
with  some  risk  cf  failure,  cannot  be  con- 
sidered in  mitigation  of  the  damages  to  be 
awarded  for  the  injury.  Martin  v.  Pitts- 
burgh Rys.  Co.  48:  115,  86  Atl.  299,  238  Pa. 
.528. 

Effect  of  prior  disease  or  infirmity. 

Burden  of  showing  liow  much  of  damage 
was  due  to  negligence  and  how  much 
to  intoxication  of  injured  person,  see 
Evidence,  325. 

372.  A  municipal  corporation  which  neg- 
ligently permits  a  defect  to  remain  in  a 
sidewalk,  to  the  injury  of  a  pedestrian,  can- 
not escape  liability  for  the  injury  because 
it  merely  aggravates  latent  diseases,  or  may 
be  rendered  more  difficult  to  cure  because  of 
the  ill  health  of  the  person  injured.  Jones 
V.  Caldwell,  48:  119,  116  Pac.  110,  20  Idaho, 
5.  (Annotated) 

373.  A  passenger  is  entitled  to  damages 
in  an  action  against  a  railroad  company 
for  injuries  suffered  through  the  derailment 
of  a  train,  although  the  evidence  is  clear 
that  the  passenger  had  an  internal  ailment 
which  could  not  be  wholly  caused  by  the 
accident,  where  there  is  also  evidence  from 
which  the  jury  might  find  that  a  weakened 
condition  which  had  shown  no  symptoms  of 
which  the  plaintiff  was  conscious  was  aggra- 
vated by  the  accident,  to  such  an  extent  as 
to  develop  the  disability  and  the  painful 
symptoms  she  described.  Maroney  v. 
Minneapolis  &  St.  L.  R.  Go.  49:  756,  144  N. 
W.    149,   123   Minn.  480. 

374.  Where  one's  leg  is  amputated  be- 
cause of  a  fall,  the  amputation  may  be  con- 
sidered in  fixing  the  damages  against  the 
one  responsible  for  the  fall;  but,  if  the  am- 
putation was  the  result  of  tuberculosis  of 
the  knee,  the  amputation  should  not  be  con- 
sidered on  the  question  of  damages.  Smart 
V.  Kansas  City,  14:  565,  105  S.  W.  709,  208 
Mo.  162. 

375.  Although  one  injured  by  another's 
negligence  was  suffering  from  tuberculosis 
of  the  knee,  if  the  knee  was  injured  by  the 
negligence,  the  negligent  person  is  respon- 
sible for  all  effects  which  naturally  followed 
from  the  injury;  and  it  is  no  defense  that 
the  injuries  may  have  been  aggravated,  or 
rendered  more  difficult  to  cure,  by  reason 
of  plaintiff's  state  of  health,  or  that,  by 
reason  of  latent  disease,  the  injuries  were 
rendered  more  serious  to  her  than  they 
would  have  been,  had  she  been  in  robust 
health.  Smart  v.  Kansas  City,  14:  565, 
105  S.  W.  709,  208  Mo.  162. 

376.  A  child  having  a  latent  tubercular 
tendency  in  its  knee,  which  is  injured  by  a 
bruise  thereon  from  a  defective  sidewalk, 
may  hold  the  municipality  liable  for  any 
aggravation  of  such  tendency  which  is  di- 
rectly caused  in  natural  and  reasonable  se- 
quence bv  the  bruise.  Xeff  v.  Cameron,  18: 
320,  111  *S,  W.  1139,  213  Mo.  350. 


DAMAGES,  III.  i,  2,  3. 


857 


377.  Where  personal  injuries  result  in 
part  from  the  negligence  of  the  defendant, 
and  in  part  from  plaintiff's  voluntary  in- 
toxication, but  such  intoxication  is  not  a 
contributory  cause  of  the  accident,  the  plain- 
tiff may  recover  for  the  injuries  that  he 
would  have  suffered  if  sober.  O'Keefe  v. 
Kansas  City  Western  R.  Co.  48:  135,  124 
Pac.  416,  87  Kan.  322. 

2.  Injuries  to  married  women. 

(See  also   same   heading  in  Digest   L.R.A. 
1-10.) 

Damages  for  death  of  married  woman,  see 

infra,  401,  402. 
Recovery  for  mental  anguish,  see  infra,  610, 

611. 
Evidence  as  to,  see  Evidence,  1718. 
Liability    for    injuries    to    married    woman 

through  fright,  see  Fright,  6. 
Instructions  as  to,  see  Trial,  891,  892. 
See  also  infra,  426,  507. 

378.  In  an  action  for  personal  injury  to 
a  wife,  there  can  be  no  recovery  for  ex- 
penses incurred  for  doctors,  medicine, 
nurses,  clothing,  and  ambulance  service, 
since  these  are  expenses  of  the  community 
for  which  the  husband  is  responsible,  and 
he  alone  can  recover.  Sliiekl  v.  F.  Johnson 
&  Son  Co.  47:  1080,  61  So.  787,  132  La.  773. 

379.  The  damages  recoverable  by  a  mar- 
ried woman  for  personal  injuries  may  in- 
clude expenses  for  medical  attendance  which 
have  been  actually  paid  or  contracted  by 
her,  although  the  primary  duty  to  make  the 
payment  was  upon  her  husband.  Indian- 
apolis Traction  &  T.  Co.  v.  Kidd,  7:  143,  79 
N.  E.  347,  167  Ind.  402. 

380.  A  pregnant  woman  injured  by  an- 
other's negligence  so  as  to  cause  the  child 
to  be  born  deformed  cannot  hold  the  negli- 
gent person  liable  to  her  for  the  pain  and 
suffering  and  inability  to  labor  of  the  child. 
Prescott  V.  Robinson,  17:  594,  69  Atl.  522,  74 
N.  H.  460. 

381.  A  married  woman  may  recover  from 
one  who  negligently  injures  her,  damages 
for  impairment  of  her  ability  to  labor,  in- 
dependently of  her  husband's  right  to  re- 
cover for  her  loss  of  time.  Colorado  Springs 
&  I.  R.  Co.  V.  Nichols,  20:  215,  92  Pac.  691, 
41    Colo.   272.  (Annotated) 

382.  A  man  may  recover  compensation 
from  one  causing  negligent  injuries  to  his 
wife,  for  the  loss  of  society,  service,  aid, 
and  comfort  resulting  therefrom,  including, 
if  the  injury  is  permanent,  compensation 
for  diminished  capacity  to  labor  in  the  fu- 
ture. Kimberlv  v.  Rowland,  7:  545,  55  S.  E. 
778,  145  N.  C.  398. 

383.  A  man  may  recover  damages  from 
one  who  trespasses  upon  his  property  and 
frightens  his  wife  to  her  injury,  for  the 
expenses  imposed  upon  him  and  the  de- 
privation of  society  and  services  of  the 
wife  because  of  the  trespass.  May  v.  West- 
ern U.  Teleg.  Co.  37:  912,  72  S.  E.  1059,  157 
N.  C.  416.  ' 
Digest  1-52  I<.R.A.(N.S.) 


Miscarriage. 

Instances  of  amount,  see  infra,  410,  411. 
Recovery  for  mental  anguish,  see  infra,  611. 

384.  In  determining  the  damages  which  a 
woman  is  entitled  to  recover  for  personal 
injuries  negligently  inflicted  and  resulting 
in  a  miscarriage,  the  pain  and  suffering 
which  she  would  have  endured  had  the  child 
been  born  in  the  natural  course  of  events 
cannot  be  deducted  from  the  pain  and  suf- 
fering occasioned  by  the  miscarriage.  Mor- 
ris V.  St.  Paul  City  R.  Co.  17:  598,  117  N.  W. 
500,  105  Minn.  276.  (Annotated) 

385.  The  physical  pain  and  distress  of 
mind  suffered  by  a  woman  who  is  caused  to 
miscarry  by  a  bodily  injury  inflicted  by 
the  negligence  of  another  may  properly  be 
considered  by  the  jury  in  awarding  damages 
for  the  injurv.  Big  Sandy  &  C.  R.  Co.  v. 
Blankenship,"23:  345,  118  S.  W.  316,  133 
Ky.  438.  (Annotated) 

386.  A  carrier  by  whose  negligence  a  preg- 
nant woman  who  is  its  passenger  is  thrown 
violently  to  the  floor  and  injured,  so  that 
she  suffers  a  miscarriage,  cannot  escape  li- 
ability to  her  in  damages  for  her  injuries 
because  they  would  not  have  occurred  had 
she  not  been  pregnant.  Colorado  Springs 
&  I.  R.  Co.  v.  Nichols,  20:  215,  92  Pac.  691, 
41  Colo.  272. 

3.  Death. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Punitive,  see  supra,  64,  66. 

Instances  of  amount  for,  see  infra,  III.  1, 
4,  b. 

Mental  anguish  as  element  of  damages,  see 
infra,  617-619. 

Review  of,  on  appeal,  see  Appeal  and  Er- 
ror, 947. 

Instructions  as  to,  see  Appeal  and  Error, 
1368,  1369 ;  Trial,  882,  1003. 

Remittitur  on  appeal,  see  Appeal  and  Er- 
ror, 1592. 

Federal  court  following  state  decisions  as 
to,  see  Courts,  328. 

Right  of  action  for  causing  death,  see 
Death,  II. 

Relevancy  of  evidence  as  to,  see  Evidence, 
1725-1728. 

Sufficiency  of  evidence  to  sustain  verdict, 
see  Evidence,  2318. 

Allegations  as  to,  see  Pleading,  214,  215. 

Prospective  operation  of  statute  as  to,  see 
Statutes,  304. 

Question  for  jury  as  to,  see  Trial,  106,  658. 

Right  of  person  to  dispose  by  will  of  dam- 
ages recoverable  for  his  wrongful  kill- 
ing, see  Wills,  80. 

387.  The  damages  in  an  action  to  recover 
for  wrongful  death  are  not  confined  to  such 
as  may  have  accrued  at  the  death,  but  may 
include  such  prospective  losses  to  the  dis- 
tributees as  the  evidence  shows  will  ac- 
tually and  necessarily  result  from  the 
wrongful    death    as    the    proximate    cause. 


858 


DAMAGES,  III.  i,  3. 


Wigal    V.    Parkersburg,    52:  465,    81    S.    E. 
654,  —  W.  Va.  — . 

388.  The  damages  for  wrongful  death  arc 
sucli  sum  as  will  compensate  decedent's 
estate  for  the  destruction  of  his  power  to 
earn  money,  not  exceeding  the  sum  claimed 
in  the  petition.  Cincinnati,  N.  O.  &  T.  P. 
R.  Co  V.  Lovell,  47:  909,  132  S.  W.  569, 
141  Ky,  249. 

389.  An  administrator  authorized  by  Fla. 
Gen.  Stat.  1906,  §§  3145,  3146,  to  maintain 
an  action  for  the  wrongful  death  of  his  de- 
cedent, and  to  recover  the  damages  sustained 
by  reason  of  such  death,  is  entitled  to  recov- 
er the  value,  at  the  time  of  the  decedent's 
death,  of  the  prospective  earnings  and  sav- 
ings that  from  the  evidence  could  reasonably 
have  been  expected  to  be  accumulated  by  the 
decedent  but  for  his  death.  Jacksonville 
Electric  Co.  v.  Bowden,  15:451,  45  So.  755, 
64  Fla.  461.  (Annotated) 

390.  To  permit  a  recovery  of  more  than 
nominal  damages  by  collateral  kindred  for 
the  negligent  killing  of  their  relative,  they 
must  show  that  they  suffered  pecuniary  loss 
thereby.  Rhoads  v.  Chicago  &  A.  R.  Co. 
11:  623,  81  N.  E.  371,  227  111.  328. 

(Annotated) 

391.  The  damages  to  be  awarded  a  minor 
for  the  negligent  killing  of  his  mother,  un- 
der a  statute  authorizing  such  damages  as, 
under  the  circumstances  of  the  case,  may 
be  just,  are  not  confined  to  the  period  prior 
to  his  majority.  Butte  Electric  R.  Co.  v. 
Jones,  18:  1205,  164  Fed.  308,  90  C.  C.  A. 
240.  (Annotated) 

392.  In  assessing  the  damages  to  be  award- 
ed a  minor  for  the  negligent  killing  of  his 
mother,  the  fact  may  be  considered  that  she 
bore  an  excellent  character,  and  furnished 
him  a  good  home,  and  intended  and  was 
able  to  give  him  a  college  education,  of 
which  her  death  deprived  him.  Butte  Elec- 
tric R.  Co.  V.  Jones,  18:  1205,  164  Fed.  308, 
90  C.  C,  A.  240. 

393.  The  damages  to  be  recovered  by  a 
child  for  the  wrongful  death  of  its  father 
are  not  limited  to  those  suffered  before  at- 
taining majority,  under  a  statute  giving 
heirs  a  right  of  action  for  death,  and  pro- 
viding that  if  deceased  leave  no  widow  or 
issue,  then  his  parents,  sisters,  or  minor 
brothers  who  may  be  dependent  upon  him 
for  support,  may  maintain  the  action,  the 
jury  to  allow  such  damages  as,  under  all 
the  circumstances,  may  seem  just.  Roches- 
ter V.  Seattle,  R.  &  S.  R.  Co.  39:  1156,  122 
Pac.  23,  67  Wash.  545.  (Annotated) 

394.  The  damages  recoverable  by  a  fath- 
er for  the  death  of  a  minor  child  by  wrong- 
ful act  is  the  probable  value  of  the  serv- 
ices of  the  child  during  minority  to  the 
father,  considering  the  cost  of  support  and 
maintenance  during  the  early  and  helpless 
part  of  its  life.  Scherer  v.  Schlaberg,  24: 
520,  122  N.  W.  1000,  18  X.  D.  421. 

396.  As  the  pecuniary  value  to  a  father 
of  the  life  of  a  female  child  three  months 
old  at  the  time  of  its  death,  alleged  to 
have  been  caused  by  negligence,  who  was 
dangerously  ill  at  the  time  the  negligent 
act  was  committed,  is  wholly  problematical 
Digest  1-52  I^R.A.(N.S.) 


and  speculative,  no  damages  for  the  death 
can  be  recovered  from  the  one  guilty  of 
the  negligence.  Scherer  v.  Schlaberg,  24: 
520,   122  X.  W.   1000,   18  N.   D.  421. 

396.  Substantial  damages  may  be  given 
for  the  negligent  killing  of  a  child  of 
tender  years,  although  he  had  no  earning 
capacity,  where  the  statute  provides  that 
the  jury  shall  give  such  damages  as  they 
shall  deem  fair  and  just.  Chesapeake  & 
0.  R.  Co.  v.  Hawkins,  26:  309,  174  Fed. 
597,  98  C.  C.  A.   443. 

397.  The  recovery  by  parents  for  death  of 
an  adult  child  under  the  Federal  employers' 
liability  act  is  limited  to  compensation  for 
such  prospective  gifts  of  money,  property, 
or  services  as  they  should  reasonably  ex- 
pect to  receive  in  the  course  of  their  lives 
from  deceased,  without  any  allowance  for 
suffering  or  bereavement.  McCullough  v. 
Chicago,  R.  I.  &  P.  R.  Co.  47:  23,  142  N.  W. 
67,  160  Iowa,  524.  (Annotated) 

398.  The  amount  which  a  parent  would 
probably  have  received  from  a  child  during 
its  lifetime,  had  it  lived,  cannot  be  awarded 
as  damages  for  its  wrongful  killing,  but 
only  the  present  value  of  such  amount  at 
the  time  of  the  trial.  Bond  v.  United  Rail- 
roads, 48:  687,  113  Pac.  366,  159  Cal.  270. 

399.  A  parent's  recovery  for  the  wrong- 
ful killing  of  his  minor  child  is  not  limited 
to  such  damages  as  might  accrue  for  the 
period  of  its  minority,  by  a  statute  provid- 
ing that  such  damages  may  be  given  as 
under  all  the  circumstances  may  be  just, 
but  may  include  loss  resulting  from  dep- 
rivation of  society,  comfort,  and  protec- 
tion, and  such  services  and  earnings  after 
majority  as  the  parent  might  reasonably 
have  expected  to  receive  from  the  child  if 
it  had  lived  during  the  parent's  expectancy 
of  life;  and  it  is  immaterial  that  the  stat- 
ute gives  a  right  of  action  for  death  of  a 
minor  only  to  those  entitled  to  its  services. 
Bond  V.  United  Railroads,  48:  687,  113  Pac. 
366,  159  Cal.  270.  (Annotated) 

400.  The  damages  to  be  awarded  the 
widow  and  children  of  one  killed  by  an- 
other's negligence  may  include  compensa- 
tion for  the  injury  due  to  loss  of  his  com- 
panionship, under  a  statute  providing  that 
the  person  suing  shall  recover  such  dam- 
ages as  the  jury  may  allow,  taking  into  con- 
sideration all  damages  of  every  kind  to  any 
and  all  parties  interested  in  the  suit.  St. 
Louis  &  S.  F.  R.  Co.  v.  Moore,  39:  978,  58 
So.  471,  101  Miss.  768. 

Of  married  xroman. 
See  also  infra,  199. 

401.  Although  a  man  cannot  recover  dam- 
ages for  the  negligent  killing  of  his  wife, 
he  may  recover  compensation  for  lost  time 
and  funeral  expenses  resulting  from  such 
death.  Philby  v.  Northern  P.  R.  Co.  9:  1193, 
89  Pac.  468,  46  Wash.  173.        (Annotated) 

402.  In  an  action  brought  by  a  husband 
whose  wife  was  fatally  injured  by  the  neg- 
ligence of  the  defendant  carrier,  the  dam- 
ages recoverable  by  him  consist  of  the 
amount  which  he  necessarily  expended  for 
medical  attendance,  medicine,  and  hospital 
fees  for  the  wife,  and  damages  for  the  loss 


DAMAGES,  III.  i,  4. 


859 


of  her  services  and  society  between  the  dates 
of  her  injury  and  death,  where  her  admin- 
istrator has  recovered,  in  a  separate  action 
for  the  benefit  of  the  statutory  beneficia- 
ries, the  damages  resulting  from  her  death. 
Mageau  v.  Great  Northern  R.  Co,  15:  511, 
115  N.  W.  651,  103  Minn.  290. 
Bnrial  expenses. 
Failure  to  itemize  in  pleading,  see  Plead- 

IXG,  633. 
See  also  supra,  401. 

403.  A  father  cannot  recover,  either  at 
common  law  or  under  the  Fatal  Accidents 
Act,  1846  (Lord  Campbell's  Act),  the  fu- 
neral expenses  to  which  he  has  been  put  in 
burying  an  unmarried  infant  daughter  whose 
death  was  caused  by  reason  of  the  defend- 
ants' negligence,  and  who  was  residing  with 
her  father  at  the  time  of  her  death.  Clark 
V.  London  General  Omnibus  Co.  Ltd.  2  B. 
R.  C.  694,  [1906]  2  K.  B.  648.  Also  reported 
in  75  L.  J.  K.  B.  N.  S.  907,  95  L.  T.  N.  S. 
435,  22  Times  L.  R.  691.  (Annotated) 

4.  Instances  of  amount. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Error  in  instruction  as  to,  see  Appeal  and 
Ekrob,  1366. 

Increasing  or  reducing  on  appeal,  see  Ap- 
peal A^■D  Ekrob,  1593,  1595. 

Remittitur  by  trial  court,  see  Trial,  1170. 

404.  Ten  thousand  five  himdred  dollars  is 
an  excessive  amount  to  be  awarded  for 
personal  injuries  inflicted  by  another's  neg- 
ligence, where  the  evidence  leaves  the  ex- 
tent of  the  injuries  uncertain,  and  also  the 
question  as  to  what  the  condition  of  the 
injured  person  will  be  permanently.  Illi- 
nois C.  R.  Co.  V.  Houchins,  i:  375,  89  S.  W. 
530,  121  Ky.  526. 

405.  Two  thousand  dollars  is  excessive  to 
be  allowed  as  damages  for  personal  injuries 
where  the  accident  is  almost  conclusively 
shown  by  the  medical  testimony  not  to  have 
been  capable  of  producing  the  only  serious 
injury  relied  on.  Heinmiller  v.  Winston, 
6:  150,  107  N.  W.  1102,  131  Iowa,  32. 

406.  Where  the  evidence  is  insufficient  to 
show  that  injuries  to  plaintiff's  person  are 
permanent,  a  verdict  of  $10,000  is  excessive. 
Louisville  &  N.  R.  Co.  v.  13rown,  13:  1135, 
106  S.  W.  795,  127  Ky.  732. 

407.  One  hundred  dollars  is  not  excessive 
to  be  allowed  in  damages  for  ptomaine 
poisoning  to  a  patron  of  a  public 
eating  house,  due  to  the  unfit  char- 
acter of  food  furnished  him,  where, 
for  a  time,  he  suffered  great  pain 
and  apprehended  death,  while  he  did  not 
entirely  recover  from  the  injury  for  six 
weeks.  Doyle  v.  Fuerst  &  Araemer,  40:  480, 
56  So.  906,  129  La.  838. 

408.  A  judgment  of  $2,500  for  injuries  to 
one  who  is  a  barber  by  profession,  by  be- 
ing run  down  by  a  fire  department,  result- 
ing in  contusion  of  the  chest  and  slight 
Digest  1-52  L.R.A.(N.S.) 


wounds  of  the  face  and  chest,  is  excessive, 
and  will  be  reduced  to  $500.  Martin  v. 
Board  of  Fire  Comrs.  44:  68,  61  So.  197,  132 
La.  188. 

409.  Two  hundred  dollars  is  not  excessive 
to  award  against  a  carrier  for  failure  to 
protect  an  elderly  clergyman  from  the  as- 
saults of  a  drunken  fellow  passenger,  al- 
though he  was  not  seriously  or  permanent- 
ly injured,  where  the  conductor  refused  to 
interfere,  and  left  him  at  the  mercy  of  his 
assailant,  who  seemed  to  think  the  discom- 
fiture of  his  victim  a  joke,  and  continued 
his  assault  for  the  entertainment  of  his 
fellow  passengers.  Jansen  v.  Minneapolis 
&  St.  L.  R.  Co.  32:  1206,  128  N.  W.  826,  112 
Minn.  496. 

Miscarriage. 

410.  Five  hundred  dollars  are  not  exces- 
sive damages  to  award  a  woman  who  suf- 
fers a  miscarriage  through  the  negligence 
of  a  carrier.  Big  Sandy  &  C.  R.  Co.  v. 
Blankenship,  23:  345,  118  S.  W.  316,  133  Ky. 
438. 

411.  A  verdict  for  $4,000,  awarded  in  an 
action  brought  to  recover  for  personal  in- 
juries negligently  inflicted  upon  a  pregnant 
woman  and  resulting  in  a  miscarriage,  is 
not  so  large  as  to  siiggest  that  it  is  the  re- 
svilt  of  passion  and  prejudice  on  the  part 
of  the  jury.  Morris  v.  St.  Paul  City  R.  Co. 
17:  598,  117  N.  W.  500,  105  Minn.  276. 
Permanent  injuries  generally. 
Increasing  or  reducing  on  appeal,  see  Ap- 
peal AND  Error,  1593,  1595. 

412.  One  thousand  dollars  is  not  exces- 
sive to  award  as  damages  for  a  personal 
injury  which  will  render  the  injured  person 
a  partial  cripple  during  life.  Weil  v.  Kreutz- 
er,  24:  557,  121  S.  W.  471,  134  Ky.  563. 

413.  Twenty-five  hundred  dollars  is  not 
an  excessive  award  of  damages  to  a  pe- 
destrian run  down  by  an  automobile,  where 
he  was  severely  bruised,  and  confined  to  his 
home  for  several  weeks,  and  one  hand  was 
permanently  crippled,  although  not  suf- 
ficiently to  render  it  entirely  useless. 
Gregory  v.  Slaughter,  8:  1228,  99  S.  W.  247, 
124  Ky.  345. 

414.  A  verdict  of  $15,000  for  injury  to 
the  driver  of  a  fire  wagon,  thirty-eight  years 
old,  which  requires  him  to  submit  to  several 
surgical  operations,  causes  him  much  physic- 
al and  mental  suflfering,  and  leaves  him  a 
cripple  for  life,  will  be  reduced  to  $7,500. 
Dole  V.  Xew  Orleans  R.  &  Light  Co.  19: 
623,  46  So.  929,  121  La.  945. 

415.  The  appellate  court  will  not  inter- 
fere with  a  verdict  of  $25,000  for  injury  to 
a  man  in  perfect  health,  thirty-nine  years 
old,  earning  $1,800  per  year,  where  the  in- 
jury partially  paralyzed  him,  caused  great 
pain,  and  rendered  him  a  physical  wreck, 
while  the  physicians  state  that  the  injuries 
are  probably  permanent  and  will  eventu- 
ally cause  death.  John  v.  Northern  P.  R. 
Co.  32:  85,  111  Pac.  632,  42  Mont.  18. 

416.  Nine  hundred  dollars  is  not  exces- 
sive to  award  as  damages  to  a  boy  wliose 
leg  is  broken  above  the  knee  by  another's 
negligence,  in  consequence  of  which  he  is 
compelled  to  stay  in  bed  for  four  months. 


860 


DAMAGES,  III.  i,  4. 


and  go  on  crutches  for  three  more,  and  is 
finally  left  with  the  injured  leg  shorter  than 
the  other.  Palmer  Transfer  Co.  v.  Smith, 
29:  321,  125  S.  W.  725,  137  Ky.  319. 

417.  The  reviewing  court  will  not  inter- 
fere with  a  verdict  for  $1,200  in  favor  of  a 
man  sixty-three  years  of  age  who  was 
knocked  down  by  an  automobile,  rendered 
unconscious,  and  sulfered  a  contusion  of  the 
head  and  hip,  and  who  at  the  time  of  the 
injury  was  earning  $1.50  per  day,  and  at  the 
time  of  the  trial,  six  months  later,  was  un- 
able to  work,  and  for  three  weeks  after  the 
accident  did  not  rest  well  where  at  the  later 
date  the  tenderness  in  the  wounds  had  not 
disappeared,  and  in  the  opinion  of  a  doctor 
was  permanent.  Hiroux  v.  Baum,  19:  332, 
118  N.  W.  533,   137   Wis.   197. 

418.  A  verdict  for  $15,000  in  favor  of  a 
farmer  forty-eight  years  of  age,  against  the 
manufacturer  of  a  thresher  for  injuries 
HuiTered  through  a  defective  condition  of  the 
machine,  is  excessive  above  $12,000.  Krahn 
v.  J.  L.  Owens  Co.  51:  650,  145  N.  W.  626, 
125  Minn.  33. 

419.  An  award  of  $30,000  to  a  miner 
twenty-four  years  old  when  injured,  and  who 
was  earning  about  $150  per  month,  will  be 
reduced  on  appeal  to  $22,000,  although  the 
lower  part  of  his  body  is  paralyzed  so  that 
he  can  move  about  only  on  crutches  and  lias 
no  control  over  his  bowels  and  urinary  or- 
gans, where  the  testimony  sliows  that  time 
may  effect  a  slight  improvement  in  his  con- 
dition. McKenzie  v.  North  Coast  Colliery 
Co.  28:  1244,  104  Pac.  801,  55  Wash.  495. 

420.  The  court  will  declare  that  the  al- 
lowance of  $38,750,  for  injury  to  a  miner 
capable  of  earning  $1,200  per  year,  which 
consists  of  the  fracture  of  his  collar  bone, 
which  shortened  in  knitting,  and  of  three 
ribs,  which  failed  to  unite,  so  that  normal 
protection  is  not  given  to  certain  vital 
parts,  and  he  has  to  wear  a  belt  to  protect 
them,  and  the  shortening  of  one  leg  a  half 
inch,  go  that  he  is  left  slightly  lame,  is, 
because  of  its  amount,  the  result  of  passion 
or  prejudice,  or  of  a  total  misconception 
by  the  jury  of  its  duties  and  obligations. 
Tunnel  Mining  &  Leasing  Co.  v.  Cooper, 
39:  1064,  115  Pac.  901,  50  Colo.  390. 

421.  $15,000  is  not  excessive  to  award  to 
a  man  twenty-three  years  old,  struck  by  a 
train  at  a  railroad  crossing  and  rendered 
unconscious  for  six  or  eight  hours ;  his  skull 
slightly  fractured;  his  hip  socket  fractured 
so  that  he  could  not  walk  without  help  for 
a  year;  his  nervous  system  shocked;  his  pel- 
vic bone  and  lower  spinal  processes  dis- 
placed, causing  partial  paralysis;  an."  his 
ability  to  work  at  his  trade,  from  which  he 
was  earning  $125  a  month,  destroyed.  Wal- 
ters V.  Chicago,  M.  &  P.  S.  R.  Co.  46:  702, 
133  Pac.  357,  47  Mont.  501. 

422.  A  verdict  for  $1,900  in  an  action  by 
a  passenger  against  the  carrier  for  injuries 
suffered  by  derailment  of  a  train  is  not  so 
excessive  as  to  require  it  to  be  disturbed 
where  the  evidence  shows  that  the  passen- 
ger was  thrown  from  her  scat  to  the  floor. 
that  before  the  accident  she  was  not  con- 
scious of  any  ailment,  and  was  able  to  do  a 
Digest  1-52  L,.R.A.(N.S.) 


woman's  work,  and  since  has  suffered  pain 
and  is  partially  incapacitated  for  labor, 
and  her  physician  gave  it  as  his  opinion 
that  her  trouble  was  inclined  to  be  chronic 
unless  an  internal  operation  is  performed 
to  relieve  her.  Maroney  v.  Minneapolis  & 
St.  L.  R.  Co.  49:  756,  144  N.  W.  149,  123 
Minn.  480. 

423.  A  verdict  of  $1,000  for  injuries  re- 
ceived by  a  sick  woman  in  an  attack  upon 
her  in  a  hospital  by  a  mad  patient  who  is 
negligently  suffered  to  escape  from  his 
apartment  is  not  too  much,  where  she  is 
immediately  made  much  worse  thereby  and 
her  health  to  some  extent  permanently  im- 
paired. University  of  Loui.svilie  v.  Ham- 
mock, 14:  784,  106  S.  W.  219,  127  Ky.  564. 

424.  The  appellate  court  will  not  disturb 
a  verdict  of  $10,000  in  favor  of  a  young 
woman  for  injury  to  her  elbow  by  the  fall 
of  a  car  window,  where  she  was  healthy, 
athletic,  and  trained  to  give  elocutionary 
and  Delsartian  entertainments,  by  which 
she  had  prepared  herself  to  earn  her  living, 
and  one  arm  had  become  practically  useless 
and  shrunken  in  size  by  the  accident,  so 
that  she  could  not  prosecute  her  profession, 
and  was  subject  to  constant  pain,  was  nerv- 
ous, often  sleepless,  as  well  as  reduced  in 
flesh,  with  no  promise  of  recovery.  Cleve- 
land, C.  C.  &  St.  L.  R.  Co.  v.  Hadley,  16: 
527,  82  N.  E.  1025,  170  Ind.  204. 

425.  A  verdict  for  $10,000  will  not  be  per- 
mitted to  stand  by  the  appellate  court  for 
injury  to  a  girl's  knee  which  resulted  in 
decay  and  removal  of  bone,  where  it  does  not 
satisfactorily  appear  that  she  would  not  so 
far  overcome  the  condition  by  growth  as  to 
leave  her  some  substantial  use  of  the  leg, 
or  that  her  earning  capacity  would  be  en- 
tirely destroyed,  where  incidents  of  the  trial 
were  such  as  to  inflame  the  jury  and  cause 
it  to  exceed  the  limits  of  fairness.  Neff  v. 
Cameron,  18:  320,  111  S.  W.  1139,  213  Mo. 
350. 

426.  A  judgment  for  $6,300  in  an  action 
for  personal  injuries  cannot  be  considered 
excessive,  or  the  result  of  passion  or  pre- 
judice, where  before  the  injury  plaintiff  had 
always  been  well,  and  had  supported  her- 
self and  two  children  by  washing  and  run- 
ning a  boarding  house,  making  from  $65  to 
$76  a  month,  while  since  the  injury — a  pe- 
riod of  about  two  and  a  half  years — she  has 
been  unable  to  earn  anytliing,  has  been  com- 
pelled to  pay  out  a  great  deal  of  money  for 
physician's  services,  and  has  suffered  intense 
pains  and  agony  at  times  as  a  result  of  her 
injuries,  which  are  probably  permanent.  St. 
Louis  &  S.  F.  R.  Co.  v.  Richards,  23:  1032, 
102  Pac.  92,  23  Okla.  250. 

Loss  of  fingers  on  hand. 

427.  A  verdict  of  $5,000  for  the  loss  of  the 
two  front  fingers  of  a  right  hand  is  exces.s- 
ive,  one  half  of  that  sum  being  a  sufficient 
compensation  therefor.  Barclay  v.  Puget 
Sound  Lumber  Co.  16:  140,  93  Pac.  430,  48 
Wash.  241. 

428.  Where  a  young  man  nineteen  years 
of  age  who  is  dependent  upon  his  physical 
labor  for  his  livelihood  loses  his  right  hand 
through  the   negligence   of   his  employer,   a 


DAMAGES,  III.  i,  4. 


861 


court  is  justified  in  allowing  him  $7,500  as 
damages  and  reducing  tlie  verdict  of  $10,000 
to  this  amount.  Rogers  v.  Hiram  J.  Allen 
Lumber  Co.  39:  202,  57  So.  IGG,  129  La. 
900. 

429.  A  verdict  for  $3,200  for  the  negli- 
gent crushing  of  the  hand  of  an  employee, 
leaving  it  in  a  permanently  crippled  condi- 
tion, is  not  indicative  of  passion  or  preju- 
dice so  as  to  require  interference  by  the  ap- 
pellate court.  Poll  V.  Numa  Block  Coal 
Co.  33:  646,  127  N.  \V.  1105,  149  Iowa,  104. 

430.  The  appellate  court  will  not  inter- 
fere with  an  allowance  of  $8,500  for  the 
destruction  of  the  right  hand  of  a  four- 
teen-year-old boy.  Glucina  v.  F.  H.  Goss 
Brick  Co.  42:624,  115  Pac,  843,  63  Wash. 
4fl. 

Iioss  of  foot  or  lixub. 

43L  A  verdict  of  $10,000  is  excessive  for 
the  loss  of  a  foot  by  a  man  fifty  years  of 
age,  engaged  in  fire  insurance  and  real  es- 
tate business,  and  will  be  reduced  to  $7,500. 
Bell  V.  Houston  &  S.  R.  Co.  43:  740,  60  So. 
1029,  132  La.  88. 

432.  $13,750  is  not  excessive  damages  to 
award  for  the  crushing  of  a  foot  of  a  mill 
hand  so  as  to  necessitate  the  amputation  of 
his  leg.  Kanz  v.  J.  Neils  Lumber  Co.  36: 
269,  131  N.  W.  643,  114  Minn.  466. 

433.  The  appellate  court  will  not  inter« 
fere  with  a  verdict  of  $12,500  for  the  loss  of 
a  leg  below  the  knee,  by  a  railroad  brake- 
man  and  conductor  thirty-nine  years  old, 
whose  career  in  that  calling  is  tli^reby 
terminated.  Gibson  v-  Chicago  G.  W.  R. 
Co.  38:  184,  134  N.  W.  516,  117  Minn.   143. 

434.  A  recovery  of  $15,000  as  damages 
for  loss  of  an  arm  by  a  railroad  trackman, 
twenty-four  years  old,  who  was  earning 
from  $80  to  $85  per  month,  was  reduced  to 
$12,000.  Bradbury  v.  Chicago,  E.  I.  &  P.  R. 
Co.  40:  684,  128  N.  W.  I,  149  Iowa,  51. 

b.  Death. 

(See  also   same  heading  in  Digest  L.R.A. 
1-10.) 

Measure  of  damages  for,  generally,  see  su- 
pra, III.  i,  3. 

Children. 

Increasing  allowance  on  appeal,  see  Appeal 

AND  Eebob,  1594. 
Sufficiency   of   evidence  to   sustain   verdict, 

see  Evidence,  2318. 

435.  A  judgment  for  $10,000  in  an  action 
by  parents  for  the  death  of  a  son  is  exces- 
sive where  all  that  is  shown  in  evidence  is 
that  the  deceased  was  the  oldest  of  six 
children,  and  was  earning  $1.50  or  $1.75  a 
day,  and  had  at  one  time  been  deputy  town- 
ship assessor  at  $3  a  day;  that  the  money- 
was  kept  for  him,  he  using  what  he  needed 
for  high  school  books  and  clothing,  and 
nothing  is  shown  as  to  the  financial  cir- 
cumstances of  the  parents  beyond  the  fact 
that  they  owned  their  own  home.  Aaron  v. 
Missouri  &  K.  Teleph.  Co.  45:  309,  131  Pac. 
582,  89  Kan.  186. 

436.  Damages  in  the  sum  of  $4,000 
Digest   1-52  L.R.A.(N.S.) 


awarded  parents  for  the  wrongful  death  of 
their  son  sixteen  years  of  age  are  not  ex- 
cessive, where  the  deceased  had  been  edu- 
cated at  considerable  expense  and  sacrifice 
on  the  part  of  the  parents,  and  was  receiv- 
ing a  professional  training,  from  which,  in 
view  of  his  intelligence,  declarations,  and 
conduct,  the  parents  might  reasonably 
entertain  an  exi)ectation  of  prospective 
benefits.  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Fajardo,  6:  681,  86  Pac.  301,  74  Kan.  314. 

437.  In  an  action  brought  against  a  rail- 
way company  by  parents  to  recover  dam- 
ages for  the  death  of  tlieir  two  children 
alleged  to  have  been  killed  at  a  railway  cross- 
ing by  the  negligent  operation  of  a  train  of 
the  defendant  company,  a  judgment  for 
$30,000  in  favor  of  the  plaintiffs  should  be 
reduced  to  $12,000,  where  the  case  is  not  one 
for  the  allowance  of  punitory  damages. 
Cherry  v.  Louisiana  &  A.  R.  Co.  17:  505,  46 
So.  596,  121  La.  471. 

Adult. 

438.  Fifteen  thousand  dollars  are  not  ex- 
cessive to  award  as  damages  for  the  negli- 
gent killing  of  a  strong,  vigorous  man  of 
good  character  and  habits,  twenty-seven 
years  old,  althougli  at  the  time  of  his  death 
he  was  employed  as  a  member  of  a  switch- 
ing crew  of  a  railroad,  which  is  a  hazard- 
ous business.  Cincinnati,  N.  0.  &  T.  P.  K. 
Co.  V.  Lovell,  47:  909,  132  S.  W.  569,  141  Ky. 
249. 

439.  Eight  thousand  dollars  is  inadequate 
to  award  as  damages  for  the  death  of  a 
healthy  man,  thirty-eight  years  old,  earn- 
ing from  $1.65  to  $3  per  day,  and  leaving 
a  widow  and  three  children,  the  eldest  of 
which  is  six  years  old.  Nations  v.  Luding- 
ton,  W.  &  Van  S.  Lumber  Co.  48:  531,  63 
So.  257,  133  La.  657. 

440.  An  allowance  of  $25,000  will  not  be 
interfered  with  on  appeal,  for  recklessly 
killing  a  vigorous  railroad  fireman  on  a 
passenger  train,  who  was  thirty-four  years 
old  and  earned  upward  of  $115  per  month, 
by  running  a  special  train  into  collision 
with  his  train,  when  it  was  its  duty  to 
keep  out  of  the  wav.  Chesapeake  &  0.  R. 
Co.  v.  Johns,  50:  853,  159  S. -W.  822,  155  Ky. 
264. 

441.  Three  thousand  seven  hundred  dol- 
lars is  not  excessive  to  award  as  damages 
for  the  wrongful  killing  of  a  strong  man 
thirty-one  years  old,  who  is  the  sole  sup- 
port of  his  wife  and  children,  and  who 
shortly  before  his  death  was  earning  from 
$50  to  $60  per  month,  most  of  which  he 
contributed  to  their  support,  although  at 
the  time  of  his  death  he  was  serving  a  short 
sentence  for  the  commission  of  a  misde- 
meanor. Tillar  v.  Reynolds,  30:  1043,  131 
S.   W.  969,  96  Ark.  358. 

442.  Damages  in  the  sum  of  $5000  award- 
ed for  the  death  of  an  industrious  man' who 
leaves  a  wife  and  several  children,  some  of 
whom  are  minors,  and  who  had  an  expect- 
ancy of  life  of  nineteen  years,  and  who  was 
earning  a  competency  of  $2.25  per  day,  are 
not  excessive.  Peterson  v.  Merchants'  Ele- 
vator Co.  27:  816,  126  N.  W.  534,  111  Minn. 
105. 


862 


DAilAGES,  III.  j. 


443.  Ten  thousand  dollars  is  not  excessive 
.to  allow  for  the  negligent  killing  of  a 
strong,  healthy  man  with  a  life  expectancy 
of  twenty-two  years,  who  was  earning  $90 
per  month,  whicii  he  contributed  to  the  sup- 
port of  his  family,  he  being  of  good  habits, 
kind,  and  affectionate,  and  taking  a  great 
interest  in  the  training  of  his  children. 
Pulaski  Gas  Light  Co.  v.  McCIintock,  32: 
825,  134  S.  W.  1189,  97  Ark.  576. 

444.  Twenty  thousand  dollars  is  excessive 
to  award  as  damages  for  the  death  of  a  man 
forty-four  years  old  with  a  life  expectancy 
of  twenty-five  years,  who  was  earning  from 
$100  to  $120  per  month  as  a  brakeman  at 
the  time  of  his  death,  and  had  served  as 
stage  driver,  bridge  carpenter,  miner,  sta- 
tionary engineer,  locomotive  fireman,  and 
brakeman.  Walters  v.  Spokane  Internation- 
al R.  Co.  42:917,  108  Pac.  593,  58  Wash.  293. 

j.  Injury  to,  or  talcing  or  detention  of, 
personal  property. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

See  also  infra,  470. 

Injury  or  destruction. 

Nominal  damages,  see  supra,  9. 

Loss  of  profits,  see  infra,  676-678. 

Prejudicial  error  as  to,  see  Appeal  and 
Ekror,  1546. 

Imposing  penalty  for  failure  to  pay  claim 
within  certain  time,  see  Constitution- 
al Law,  566. 

Evidence  as  to,  see  Evidence,  1687,  2438. 

Question  for  jury  as  to,  see  Trial,  112,  659. 

445.  Where  a  suit  is  brought  for  damages 
arising  from  the  destruction  of  property, 
Jind  there  is  a  basis  of  calculation  as  to 
the  value,  interest  is  not  recoverable  eo 
nomine.  But  the  jury  may  consider  the 
length  of  time  damages  have  been  withheld, 
the  character  of  the  tort,  the  conduct  of 
the  defendant,  and  all  the  circumstances  of 
the  transaction,  and  may,  in  their  discre- 
tion, increase  the  amount  of  damages  by 
adding  to  the  value  of  the  property  de- 
stroyed a  sum  equal  to  the  interest  on  such 
value;  the  entire  sum  found  being  returned 
as  damages,  and  not  exceeding  the  amount 
sued  for.  Central  of  Georgia  R.  Co.  v. 
Hall.  4:  898,  52  S.  E.  679,   124  Ga.  322. 

446.  The  value  of  the  property  destroyed, 
and  not  the  cost  of  making  the  repairs,  or 
the  difference  in  value  of  the  premises  with 
a  perfect  and  defective  radiator  in,  is  the 
measure  of  damages  for  injury  to  property 
of  a  tenant  of  an  apartment  through  the 
bursting  of  a  defective  steam  radiator  which 
the  landlord  was  bound  to  keep  in  repair. 
O'Hanlon  v.  Grubb,  37:  1213,  38  App.  D,  C. 
251. 

447.  The  damages  for  negligent  injury  to 
a  building  containing  a  stock  of  goods, 
which  injures  them  and  requires  their  re- 
moval to  another  location,  includes  the 
value  of  stock  and  fixtures  destroyed,  and 
the  injury  to  those  not  completely  destroyed, 
the    expense    of   removal,   and    the    1oj,s   of 

Digest  1-52  I,.R.A.(N.S.) 


profits  caused  by  the  removal.  Di  Pahna 
V.  Weinman,  24:  423,  103  Pac.  782,  15  N. 
M.   68. 

448.  Under  a  statute  providing  that, 
where  a  person  whose  property  is  injured 
through  the  negligence  of  a  railroad  com- 
pany is  himself  negligent,  the  damages  re- 
coverable shall  be  diminished  or  increased 
by  the  jury  in  proportion  to  the  amount  of 
default  attributable  to  such  person,  a  re- 
covery of  $1,000  for  the  destruction  at  a 
railroad  crossing,  of  an  automobile  valued 
at  $1,600,  is  excessive,  where  the  driver  of 
such  machine,  was  operating  it  at  20  miles 
an  hour,  on  a  country  road,  and  had  his 
attention  engaged  in  passing  some  teams  in 
the  highway,  at  a  point  where  it  crosses 
the  railroad  track,  of  which  crossing  the 
owner  knew,  although  notice  of  the  ap- 
proach of  tlie  train  was  not  given  by  the 
bell  or  whistle  of  the  engine,  but  the  ap- 
proach of  the  train  could  have  been  seen 
several  hundred  yards  away.  Atlantic 
Coast  Line  R.  Co.  v.  Wier,  41:  307,  58  So. 
641,  63  Fla.  69. 

449.  A  civil  engineer  cannot  hold  one  who 
negligently  destroys  his  transit  liable  for 
the  full  amount  which  he  could  have  earned 
in  the  use  of  such  instrument  while  he  is 
replacing  it,  in  the  absence  of  any  evidence 
to  show  that  he  could  not  have  secured  oth- 
er employment  in  the  line  of  his  usual 
vocation  without  the  use  of  the  instrument 
during  such  time,  which  would  have  af- 
forded him  some  compensation.  Parks  v. 
Sullivan,  25:  625,  104  Pac.  1035,  46  Colo. 
340. 

450.  Five  hundred  dollars  is  a  proper 
amount  to  be  awarded  for  loss  of  a  manu- 
script manual  on  Greek  grammar,  where  it 
might  be  reproduced  in  two  years  by  de- 
voting such  time  to  the  work  as  a  teacher 
might  find  at  his  disposal.  Wood  v.  Cunard 
S.  S.  Co.  41:  371,  192  Fed.  293,  112  C.  C. 
A.  551. 

451.  The  damages  to  be  allowed  for  negli- 
gent loss  of  a  manuscript  which  has  not 
been  put  upon  the  market  for  sale  so  as 
to  have  a  market  value  may  be  based  upon 
what  it  is  worth  to  the  owner,  to  ascertain 
which  the  cost  of  its  production  may  be  con- 
sidered. Southern  Exp.  Co.  v.  Owens, 
8:  369,  41  So.  752,  146  Ala.  412. 

(Annotated) 
Conversion. 

Conversion  by  carrier,  see  supra,  290,  290a. 
Mitigation  of  damages,  see  infra,  716,  717. 
Evidence  as  to  value  of  property,  see  Evi- 
dence, 1690. 
Sec  also  supra,  303. 

452.  The  measure  of  damages  for  conver- 
sion en  route,  by  a  stranger,  of  property  in 
possession  of  a  carrier  for  transportation, 
may  be  measiired  by  its  value  at  destination 
less  transportation  and  selling  expenses,  and 
is  not  limited  to  its  value  at  the  place  of 
conversion  or  nearest  market;  and  the  lack 
of  information  on  the  part  of  the  wrongdoer 
as  to  the  particular  destination  of  the  prop- 
erty is  immaterial.  Wallingford  v.  Kaiser, 
15:1126,  84  N.  E.  295,  191  N.  Y.  392. 

453.  The    damages    for    the    inadvertent 


DAMAGES,  III.  k,  1. 


863 


conversion  by  a  railroad  company  of  logs 
reserved  by  the  former  owner  when  deeding 
the  right  of  way,  and  cut  and  piled  along 
the  right  of  way,  awaiting  removal  by  him, 
are  the  value  of  tlie  logs  where  piled,  and 
not  their  value  after  having  been  trans- 
ported to  market.  Gunstone  v.  Chicago, 
M.  &  P.  S.  R.  Co.  52:  392,  140  Pac.  907,  79 
Wash.    629.  (Annotated) 

454.  The  contract  price  may  be  taken  aa 
the  measure  of  value  in  an  action  for  con- 
version of  articles  sold  a  contractor  to  be 
installed  in  an  electric  plant  for  a  mu- 
nicipality. Allis-Chalmers  Co.  v.  Atlantic, 
52:  561,  144  N.  W.  346,  164  Iowa,  8. 

455-6.  The  damages  recoverable  by  a  ven- 
dor of  machinery  who  reserved  title  thereto 
until  tlie  price  was  paid,  against  a  condi- 
tional vendor  of  the  realty  to  which  it  was 
attached  for  wrongfully  converting  it,  is 
what  remains  unpaid  at  the  time  of  the  con- 
version, under  a  statute  providing  that,  in 
case  articles  sold  on  condition  that  the  itle 
shall  remain  in  the  vendor  until  the  price  is 
paid  are  retaken  by  the  vendor,  the  vendee, 
or  his  successor  in  title,  shall  have  thirty 
days  in  which  to  comply  with  the  contract. 
Davis  v.  Bliss,  10:  458,  79  N.  E.  851,  187  N. 
Y.  77.  (Annotated) 

457.  The  damages  for  conversion  by  a 
broker  of  stocks  carried  by  him  for  a  cus- 
tomer on  margin  may  be  based  on  the  high- 
est market  price  within  two  months  of  the 
conversion,  if  such  time  is,  under  all  the 
circumstances  of  the  case,  a  reasonable  one. 
Mullen  V.  J.  J.  Quinlan  &  Co.  24:  511,  87 
N.  E.  1078,  195  N.  Y.   109. 

458.  The  measure  of  damages  where  a 
stock  of  goods  has  been  wrongfully  taken 
by  a  creditor,  and,  on  the  order  of  the  court, 
placed  in  the  hands  of  a  receiver,  for  loss 
of  the  goods  or  depreciation  in  value,  is  the 
difference  between  the  market  value  thereof 
at  the  time  of  the  taking,  and  their  value 
at  the  time  the  receiver  comes  into  posses- 
sion. Aylesbury  Mercantile  Co.  v.  Fitch,  23: 
573,  99  Pac.  1089,  22  Okla.  475. 

Te.  Injury   to   real   property;   nuisance. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Preventing  unnecessary  amount,  see  supra, 
15. 

Punitive,  see  supra,  67. 

Measure  of  damages  for  breach  of  contract 
as  to,  see  supra.  III.  a,  3. 

For  fraud  on  sale  or  exchange  of,  see  supra, 
325-329. 

Condemnation  or  depreciation  in  value  by 
eminetit  domain,  see  infra,  III.  1. 

Aggravation  of  damages  for  trespass,  see  in- 
fra, 727,  728. 

Prejudicial  error  as  to  measure  of,  see  Ap- 
peal AND  Error,  1561. 

Retaining  suit  for  injunction  in  order  to  as- 
sess damages,  see  P]quity,  107. 

Digest  1-52  L.R.A.(N.S,) 


Evidence  on  question  of,  see  Evidence,  1692- 
1701,  1735-1742,  2006. 

Interest  on,  see  Interest,  22. 

Setting  aside  verdict  for  error  in  admission 
of  evidence  as  to,  see  New  Trial,  17. 

Correctness  of  instruction  as  to,  see  Trial, 
990. 

Who  entitled  to,  as  between  vendor  and  pur- 
chaser, see  Trial,  996. 

459.  The  measure  of  damages  for  injury 
to  a  portion  of  a  bridge  is  the  cost  of  re- 
pairing it.  West  V.  Martin,  21:  324,  97  Pac. 
1102,  51  Wash.  85. 

460.  The  measure  of  damages  for  de- 
struction of  a  mei:dow  by  fire  is  the  cost 
of  reseeding  it  plus  the  rental  value  of  the 
property  during  the  time  its  owner  is  de- 
prived of  crops  therefrom  by  reason  of  the 
fire.  Couch  v.  Kansas  City,  S.  R.  Co.  46: 
555,  158  S.  W.  347,  252  Mo.  34. 

461.  The  measure  of  damages  for  render- 
ing rented  land  unfit  for  cultivation  is  the 
rental  value  of  the  property,  although  the 
owner  was  to  receive  a  share  of  the  crop  for 
rental,  where  no  crop  was  in  fact  raised. 
Quinn  v.  Chicago,  M.  &  St.  P.  R.  Co.  22:  789, 
120  N.  W.  884,  23  S.  D.  126. 

462.  Damages  for  permanent  injury  may 
be  recovered  for  destruction  of  the  produc- 
tive power  of  land  by  casting  oil  and  salt 
water  thereon,  although  the  continuance 
thereof  may  be  abated.  Niagara  Oil  Co.  v. 
Ogle,  42:  714,  98  N.  E.  60,  177  Ind.  292. 

463.  The  owner  of  the  fee  from  which 
mineral  oil  is  taken  by  the  owner  of  a 
right  of  way  across  property  may  recover 
what  the  latter  receives  from  a  sale  of  the 
oil,  in  the  absence  of  any  evidence  showing 
the  cost  of  bringing  it  to  the  surface.  Right 
of  Way  Oil  Co.  v.  Gladys  City  Oil,  Gas, 
&  Mfg.  Co.  51:  268,  157  S.  W.  737,  —  Tex. 

464.  Injury  to  the  reputation  of  an  estate 
because  of  its  use  as  a  smallpox  hospital  is 
not  an  element  of  damages  in  an  action 
against  the  lessee  for  waste.  Delano  v. 
Smith,  30:  474,  92  N.  E.  500,  206  Mass.  365. 

(Annotated) 
Ejectment. 

Extent  of  recovery  in  ejectment,  see  Eject- 
ment, III. 

465.  Where  the  owner  of  the  legal  title 
to  wild  lands  dispossesses  a  holder  under  a 
void  tax  deed  who  has  reduced  such  lands  to 
cultivation,  the  rent  allowable  for  the  use 
of  the  premises  during  such  wrongful  pos- 
session is  to  be  determined  from  the  cash 
price  usually  paid  for  the  use  of  wild  lands 
during  the  same  time  and  in  the  same  lo- 
cality. Gibson  v.  Fields,  20:  378,  98  Pac. 
1112,  79  Kan.  38. 

Mining  coal. 

466.  The  damages  for  unlawfully  mining 
and  removing  another's  coal  are  the  value 
of  the  coal  in  place  if  there  is  evidence 
from  which  that  value  can  be  ascertained. 
Kingston  v.  Lehigh  Valley  Coal  Co.  49: 
557,  88  Atl.  763,  241  Pa.  469. 

467.  The  value  of  coal  in  place  for  the 
purposes    of    determining    the    damages    for 

'  wrongfully  mining  and  removing  it,  is  its 


8G4 


DAMAGES,  III.  k,  2. 


royalty  value  if,  it  is  so  located  as  to  have 
a  present  market  value  for  operation  as  a 
growing  mine,  to  be  estimated  as  of  the 
time  the  trespass  is  committed.  Kingston 
V.  Lehigh  Valley  Coal  Co.  49:  557,  88  Atl. 
763,  241  Pa.  469. 

3.  Injury  to,  or  destruction  of,  build- 
ings, trees,  or  crops. 

(See  also   same  heading  in  Digest   L.R.A. 
1-10.) 

Interest  on  amount  recovered,  see  Interest, 

21. 
Instructions  as  to,  see  Trial,  991. 
•See  also  supra,  447;  infra,  551,  552,  673. 

468.  A  tenant  in  common  in  possession 
cannot,  in  an  action  against  his  cotenant 
for  entering  upon  the  common  property  and 
removing  doors  and  vi'indows  therefrom,  re- 
cover damages  for  actual  suffering  because 
of  absence  of  the  articles  removed  beyond 
the  time  when  they  could  reasonably  have 
been  replaced.  Davis  v.  Poland,  10:  212,  66 
Atl.  .380,  102  Me.  192. 

469.  A  railroad  company  which  negligent- 
ly sets  fire  to  shacks  used  by  one  who  has 
contracted  to  cut  and  saw  a  lot  of  stand- 
ing timber,  for  housing  his  help,  is  liable 
for  the  value  of  supplies  destroyed  and  the 
cost  of  replacing  the  shacks.  Thompson  v. 
Seaboard  Air  Line  R.  Co.  52:  97,  81  S.  E. 
315,  165  N.  C.  377.  (Annotated) 

470.  Damages  for  injury  caused  by  the 
construction  upon  another's  building  of  a 
windmill  so  negligently  that  it  falls  may 
include  the  injury  to  the  articles  stored  in 
the  building.  Flint  «&  W.  Mfg.  Co.  v. 
Beckett.  12:  924,  79  N.  E.  503.  167  Ind.  491. 

471.  The  damages  to  be  allowed  for  in- 
jury to  a  building  may  include  the  loss  of 
rent  up  to  the  time  when,  with  reason- 
able diligence,  it  could  have  been  restored, 
whether  it  was  in  fact  restored  or  not. 
Higgins  V.  T.,os  Angeles  Gas  &  Electric  Co. 
34:  717,  115  Pac.  313,  115  Cal.  651. 
Cutting    of,    or    injury    to,    timber    or 

trees. 

472.  A  person  who  cuts  timber  upon  the 
land  of  another,  in  good  faith,  in  the  honest 
belief  that  it  is  upon  his  own  land,  is  liable 
for  its  value  at  the  stump,  and  not  as  man- 
ufactured into  lumber.  J.  F.  Ball  &  Bro. 
Lumber  Co.  v.  Simms  Lumber  Co.  18:  244, 
46  So.  674,  121   La.  027.  (Annotated) 

473.  The  measure  of  damages  as  between 
the  landowner  and  the  tort  feasor,  for  in- 
jury to  timber  by  fire,  is  not  the  difference 
between  the  value  of  the  timber  as  it  was 
at  the  time  of  the  fire  and  its  value  there- 
after, but  is  the  difference  in  the  value  of 
the  land  on  which  the  timber  is  located 
before  the  fire,  including  the  timber  there- 
on, and  its  value  after  the  fire  in  the  con- 
dition that  it  then  is.     Reynolds  v.  Great 


be  regarded  as  excessive  when  supported  by 
testimony  of  its  own  witnesses.  Louisville 
&  N.  R.  Co.  V.  Beeler,  11:930,  103  S.  W. 
300,  126  Ivy.  328. 

475.  The  measure  of  damages  for  the 
wrongful  destruction  of  shade  trees,  the 
separable  and  independent  value  of  which 
is  nominal,  is  the  difference  between  the 
value  of  the  land  before  and  after  the  de- 
struction. Cleveland  School  Dist.  v.  Great 
Northern  R.  Co.  28:  757,  126  N.  W.  995, 
20  N.  D.  124.  (Annotated) 

476.  The  removal  or  destruction  of  or 
damage  to  trees  planted  by  a  lot  owner 
or  his  grantor,  and  growing  upon  that 
part  of  the  street  contiguous  to  his  lot, 
is  a  proper  element  of  damages  for. change 
of  street  grade  so  far  as  it  may  affect  the 
difference  in  the  value  of  the  property 
before  and  after  the  change  of  grade. 
Stocking  V.  Lincoln,  46:107,  142  N.  W.  104, 
93  Neb.  798. 

477.  The  measure  of  damages  for  negli- 
gent destruction  of  and  injury  to  fruit  trees 
is  the  fair  and  reasonable  value  of  those  de- 
stroyed, and  the  difference  in  value  of  those 
injured  before  and  after  the  injury,  and  not 
the  difference  in  value  of  the  tract  of  land 
on  which  they  stood,  before  and  after  the 
injury.  Louisville  &  N.  R.  Co.  v.  Beeler, 
11:  930,  103  S.  W.  300,  126  Ky.  328. 

( Annotated ) 

478.  An  allowance  of  $275  for  the  ma- 
licious destruction  by  a  property  o.vner  of 
a  healthy  and  symmetrical  shade  tree  24 
inches  in  diameter,  on  the  boundary  be- 
tween his  own  and  his  neighbor's  property, 
will  not  be  interfered  with,  where  evidence 
tends  to  show  that  the  value  of  the  neigh- 
boring property  was  diminished  from  two 
to  five  hundred  dollars  by  the  act.  Bla- 
lock  V.  Atwood,  46:  3,  157  S.  W.  694,  154 
Ky.  394. 

Crops. 

Preventing  unnecessary  amount,  see  supra, 
19. 

Prejudicial  error  as  to  measure  of,  see  Ap- 
peal AND  Error,  1549. 

Opinion  evidence  as  to,  see  Evidence,  1128. 

Relevancy  of  evidence  as  to  value  of,  see 
Evidence,  1702,  1739-1742. 

Sufficiency  of  evidence  to  show  amount  of, 
see  Evidence,  2321.  h> 

See  also  supra,  460,  461. 

479.  In  a  suit  for  damages  for  the  de- 
struction of  a  growing  crop,  such  damages 
are  to  be  estimated  as  of  the  time  of  the 
injury,  and  the  measure  to  be  applied  is 
compensation  for  the  value  of  the  crops  in 
the  condition  in  which  they  v-ere  at  the 
time  of  their  destruction.  Missouri  0. 
&  G.  R.  Co.  V.  Brown,  50:  1124,  136  Pac. 
1117,  41  Okla.  70. 

480.  The  measure  of  damages  to  a  grow- 
ing crop  by  a  wrongful  act  which  destroys 
it  is  its  value  at  the  time  and  place  of 
it^  destruction.     United  States  Smelting  Co. 


Northern  R.  Co.  52:  91,  138  N.  W.  30,  119  '  y.  Sisam,  37:  976,  191  Fed.  293,  112  C.  C.  A 
Minn.  251.  (Annotated)      37 


474.  The  damages  awarded  against  a  rail- 
road  company  for  negligent  destruction  of 


481.  The   measure   of   the   damage   to   a 
glowing    crop    injured,    but    not    rendered 


fruit  trees  by  fire  from  its  engines  ca nnot  worthless,    is    the    difference    between    the 
Digest  1-52  Ii.R.A.(N.S.) 


,  DAMAGES,  Ul.  k,  3. 


8G5 


ducted  from  tlie  market  value  of  the  crop, 
in  awarding  damages  for  loss  of  the  crop 
because  of  defective  character  of  the  seed. 
Fuhrman  v.  Interior  Warehouse  Co.  37:89, 


3.  Injury  to  water  rights;  overflows. 

(See  also   same   heading   in  Digest   L.R.A. 
1-10.) 


value  of  that  crop  before  and  after  the 
injury,  at  the  time  and  place  thereof. 
United  States  Smelting  Co.  v.  Sisam,  37: 
976,  191  Fed.  293,  112  C.  C.  A.  37. 

482.  Where  a  crop  is  injured  from  time  I  116  Pac.  666,  64  Wash.  159. 
to  time  throughout  its  growing  season  until 
its  maturity,  by  sulphurous  fumes  and  their 
products,  but  is  not  destroyed,  so  tiiat  it  is 
cultivated  throughout  the  season,  harvested 
and  marketed,  the  damage  to  it  is  the  dif- 
ference  between   the   value   at   maturity   of 
the    probable    crop,    if    there    had    been    no  |  -'^s  to  nominal  damages,  see  supra,  10-12. 
injury,    and   the   value    of   the   actual    crop  '  Preventing  unnecessary  amount,  see  supra, 
at    that    time,    less    the    expense    of    fitting  |  18. 

for    market    that    portion    of    the    probable  I  Evidence  as  to,  see  Evidence,  1693,  2006. 
crop   which   was    prevented   from   maturing 

by  the  injury.     United  States  Smelting  Co.     Obstruction   or   diversion;   overflow. 
v.  Sisam,  37:  976,  191  Fed.  293,  112  C.  C.  A.    As  to  nominal  damages,  see  supra,  11. 
37.  I  Evidence  as  to,  see  Evidence,  1735,  2010. 

483.  The  measure  of  damages  for  the  im-  !  Liability  of  road  supervisors  in  compensa- 
pairment  of  growing  crops  by  the  emission  '•  tory  damages  for  diverting  surface 
of  sulphurous  fumes  is  the  difference  in  the  ,          water,  see  Waters,  262. 

yield  and  the  prices  of  the  crops  with  and  1  See  also  Limitation  of  Actions,  80. 
without    the    presence    of    the    fumes    com-  |      491.  The    damages    for    obstruction    of   a 


plained  of.  International  Agricultural 
Corp.  v.  Abercrombie,  49:  415,  63  So.  549, 
184  Ala.  244.  (Annotated) 

484.  The  measure  of  damages  for  destruc- 
tion of  a  growing  crop  is  its  value  as  it 
stood  on  the  ground  at  the  time  of  destruc- 
tion, to  be  arrived  at,  not  by  ascertaining 
what  it  has  cost  at  that  time,  but  from  evi- 
dence of  the  probable  yield  of  the  land, 
multiplied  by  the  market  value  of  the  crop, 
less  cost  of  producing  and  marketing.  Tel- 
ler v.  Bay  &  River  Dredging  Co.  12:  267,  90 
Pac.  942,  151  Cal.  209.  (Annotated) 


floatable  stream  may  include  depreciation 
in  value  of  timber  required  to  lie  in  the  wa- 
ter an  undue  length  of  time,  and  the  ex- 
pense of  maintaining  the  men  necessary  to 
handle  the  drive  pending  the  release  of  the 
timber  from  detention.  Blackman  v.  Maul- 
din,  27:  670,  51  So.  23,  164  Ala,  337. 

492.  Damages  arising  from  the  occasional 
flooding  of  land  by  reason  of  an  insufficient 
culvert  upon  the  land  of  an  adjacent  pro- 
prietor are  not  original,  so  as  to  be  assessed 
once  for  all.  Harvey  v.  Mason  City  &  Ft. 
D.  R.  Co.  3:  973,  105  N.  W.  958,  129  Iowa, 


48.T.  The  measure  of  damages  for  injuries  j  465. 
to  a  growing  crop  not  totally  destroyed  is  j      493.  The  measure  of  damages  for  the  oc- 


the  dilTerence  in  value  thereof  immediately 
before  and  after  the  injury.  Missouri  P.  R. 
Co.  V.  Sayers,  27:  168,  107  Pac.  641,  82 
Kan.    123. 

486.  The  measure  of  damages  for  the  to- 
tal destruction  of  a  growing  crop,  althougli 
practically  ready  for  harvest,  is  the  value 
of  the  crop  in  its  condition  at  the  time  and 
place  it  was  destroyed.  Missouri  P.  R.  Co. 
V.  Sayers,  27:  i68,  107  Pac.  641,  82  Kan. 
123.  (Annotated) 

487.  The  measure  of  damages  for  the  de- 
struction of  a  growing  crop  is  its  value  at 
the  time  and  place,  and  in  the  condition,  it 
was  in  when  destroyed.  Chicago,  R.  I.  &  P. 
R,  Co.  v.  Johnson,  27:  879,  107  Pac.  662,  25 
Okla.  760. 

488.  The  measure  of  damages  for  the  de- 
struction of  a  permanent  or  perennial  crop, 
such  as  alfalfa,  is  the  difference  between  the 
value  of  the  land  before  and  after  the  de- 
struction of  the  crop.  Thompson  v.  Chi- 
cago, B.  &  Q.  R.  Co.  23:  310,  121  N.  W.  447, 
84  Neb.  482.  (Annotated) 

489.  To  ascertain  the  damages  for  loss  of 
a  crop  because  of  defective  seed,  the  cost  of 
production  which  has  actually  been  incurred 
should  not  be  deducted  from  the  market 
value  of  the  crop  which  should  have  been 
produced.  Fuhrman  v.  Interior  Ware- 
house Co.  37:  89,  116  Pac.  666,  64  Wash.  159. 

490.  The  contract  price  of  seed  purchased 
for  use  on  land,  if  not  paid,  should  be  de 


Digest  1-52  i:..R.A.(N.S.) 


55 


casional  flooding  of  land  because  of  the 
construction  of  an  insufficient  culvert  is  the 
difference  between  the  fair  market  value  of 
the  land  immediately  before  an  injury  and 
its  fair  market  value  immediately  there- 
after, including  1  herein  the  value  and  condi- 
tion of  crops  which  may  have  been  injured. 
Harvey  v.  Mason  City  &  Ft.  D.  R.  Co.  3: 
973,  105  N.  W.  958,  129  Iowa,  465. 

(Annotated) 

494.  The  measure  of  damages  sustained  by 
a  homesteader  whose  premises  are  overflowed 
by  reason  of  the  wrongful  obstruction  of  a 
natural  water  way  is  not  the  same  as  if  ho 
owned  the  land  in  fee,  but  depends  upon  the 
improved  condition  of  the  premises,  the 
length  of  time  the  homestead  has  existed, 
and  all  other  facts  that  go  to  make  up  its 
value.  McLeod  v.  Spencer,  17:  958,  95  Pac. 
754,  21  Okla.  165. 

495.  Temporary  damages  only  may  be 
recovered  for  injuries  to  real  property 
caused  by  the  occasional  and  intermittent 
submergence  thereof  by  the  casting  thereon 
of  surface  water  caused  by  the  grading  and 
sewering  of  city  streets.  McHenry  v.  Park- 
ersburg,  29:  860,  66  S.  E.  750,  66  W.  Va.  533. 

(Annotated) 

496.  The  measure  of  temporary  damages 
for  injuries  to  a  lot  and  dwelling  house 
caused  by  the  flooding  thereof  by  the  oc- 
casional and  intermittent  casting  thereon 
of   surface   water   from   city    improvements 


866 


DAMAGES,  III.  k,  4. 


is  the  cost  of  repairing  the  injury  to  the 
property,  reimbursements  for  expenses  di- 
rectly occasioned  by  the  flooding  thereof, 
and  compensation  for  loss  of  use  of  the  prop- 
erty and  rentals,  and  destruction  of,  and 
damage  to,  personal  property  tliereon.  Mc- 
Henry  v.  Parkersburg,  29:  860,  06  S.  E.  750, 
66  W.  Va.  533. 
Pollution. 

Nominal  damages,  see  supra,  12. 
Mitigation  of  damages,  see  infra,  715. 
Questioning  rule  of  damages  for  first  time 
on  appeal,  see  Appeal  and  Error,  797. 
See  also  infra,  510. 

497.  The  measure  of  damages  for  render- 
ing land  unfit  or  less  valuable  for  pasture 
or  other  purposes  for  which  it  is  adapted  by 
turning  chemicals  into  a  stream  running 
through  it  is  the  diminution  of  the  market 
value  of  the  property,  if  the  injury  is  per- 
manent, or  the  diminution, of  the  rental  val- 
ue, if  the  injury  is  temporary.  Hodges  v. 
Pine  Product  Co.  33:  74,  68  S.  E.  1107,  135 
Ga.   134. 

498.  The  measure  of  damages  for  wrong- 
fully polluting  a  spring  is  the  diminution 
in  value  of  the  use  of  the  property  during 
the  time  the  water  is  polluted.  Long  v. 
Louisville  &  N.  R.  Co.  13:  1063,  107  S.  W. 
203,  128  Ky.  26. 

4.  Nuisances. 

Jr- 

i(8ee  also   same  heading  in  Digest   L.R.A. 
i-10.) 

Preventing  unnecessary  amount,  see  supra, 

16,  17. 
Punitive  damages,  see  supra,  40. 
Evidence  on  question  of,  see  Evidence,  1736. 
Correctness  of  instructions  as  to,  see  Trial, 

989,  992. 

499.  The  allowance  .of  $4,000  as  damages 
for  injury  to  the  rental  value  of  a  $7,000 
house  for  thirty-two  months  by  the  mainte- 
nance of  a  nuisance  in  the  vicinity  is  ex- 
cessive. Louisville  &  N.  Terminal  Co.  v. 
Lellyett,  i:  49,  85  S.  W.  881,  114  Tenn.  368. 

500.  The  injury  to  the  fee  or  permanent 
value  of  the  property  is  the  proper  measure 
of  damages  where  neighboring  property  is 
injured  by  the  location  and  operation  of 
railroad  terminals  which  are  intended  to  be 
permanent,  and,  notwithstanding  their  care- 
ful and  proper  operation,  constitute  a  nui- 
sance diminishing  the  value  of  the  property. 
Louisville  &  N.  Terminal  Co.  v.  Lellyett,  i: 
49,  85  S.  W.  881,  114  Tenn.  368. 

501.  The  measure  of  damages  in  case  of 
injury  to  neighboring  property  by  the  care- 
less operation  of  a  railroad,  so  that  the 
presumption  is  that  the  evil  will  be  rem- 
edied and  recurring  damages  for  injuries  to 
the  use  and  enjoyment  of  the  property  may 
be  recovered,  is  to  be  governed  to  a  large 
extent  by  the  rental  value  of  the  property, 
and  to  what  extent  that  value  is  diminished. 
Louisville  &  N.  Terminal  Co.  v.  TjtjUyett, 
i:  49,  85  S.  W.  881,  114  Tenn.  308. 

Digest  1-52  L.R.A.(N.S.) 


502.  The  true  measure  of  damages  for 
injury  to  land  from  noise  and  smoke  from 
the  roundhouse  and  yards  of  a  railway  com- 
pany is  compensation  for  the  loss  or  injury 
sustained ;  and,  as  a  general  rule,  the  dam- 
ages are  -measured  by  the  depreciation  in 
the  market  value  of  the  property  injured, 
where  the  injury  caused  b^^  the  nuisance  is 
of  a  permanent  nature.  Choctaw,  0.  &  G. 
R.  Co.  V.  Drew,  44:  38,  130  Pac.  1149,  37 
Okla.  396. 

503.  The  value  at  the  date  of  trial  should 
be  considered  in  determining  the  damages 
to  be  allowed  for  diminution  in  value  of 
property  by  the  operation  on  neighboring 
property  of  an  electric  light  plant  in  such 
manner  as  to  constitute  a  nuisance.  Sher- 
man Gas  &  Electric  Co.  v.  Belden,  27:  237, 
123   S.    W.    119,   103   Tex.    59. 

504.  In  determining  the  damages  to  be 
allowed  for  the  diminution  in  value  of 
property  by  the  operation  of  an  electric 
plant  on  neighboring  property  in  such  man- 
ner as  to  constitute  a  nuisance,  the  mar- 
ket value  of  the  property  for  any  use  to 
which  it  might  be  appropriated  after  the 
beginning  of  the  nuisance  should  be  con- 
sidered, not  merely  the  value  for  the  use  to 
which  it  was  put  prior  thereto.  Sherman 
Gas  &  Electric  Co.  v.  Belden,  27:  237,  123 
S.   W.   119,   103  Tex.  59. 

505.  The  owner  of  property  which  is  to 
be  let  as  a  dwelling  cannot  recover  damages 
for  the  temporary  operation  near  it  of  a 
manufactory  in  such  a  manner  as  to  con- 
stitute a  nuisance,  unless  he  shows  a  dim- 
inution in  the  rental  value  of  the  property 
because  of  the  manner  in  which  tlie  manu- 
factory is  conducted.  McGill  v.  Pintsch 
Compressing  Co.  20:  466,  118  N.  W.  786,  140 
Iowa,  429.  * 

506.  In  an  action  to  recover  damages  for  • 
the  permanent  diminution  of  the  value  of 
property  by  the  use  to  which  a  factory  is 
put  some  years  after  it  was  established,  the 
increased  value  of  the  injured  property  be- 
cause of  the  establishment  of  the  factory 
which  is  common  to  all  property  in  the 
neighborhood,  cannot  be  considered ;  but  any 
incidental  benefit  to  the  injured  property  by 
reason  of  the  operation  of  the  plant,  which 
is  peculiar  to  such  property,  may  be  con- 
sidered. Brown  v.  Virginia-Carolina  Chem- 
ical Co.  45:  773,  77  S.  E.  1102,  162  N.  C.  83. 

( Annotated ) 

507.  The  owner  of  a  residence  which  is 
rendered  inconvenient,  uncomfortable,  and 
unhealthy  as  a  home  by  the  nuisance  of 
sulphurous  fumes  and  their  products  thrown 
upon  and  into  it  by  another,  may  prove  and 
recover  in  an  action  therefor  the  damages 
he  himself  suflFers  from  the  discomfort  and 
sickness  thereby  inflicted  upon  his  wife 
and  the  other  members  of  his  family  who 
live  with  him  therein,  although  he  may  not, 
and  his  wife  alone  may,  maintain  the  cause 
for  the  direct  personal  injury  to  her.  Unit- 
ed States  Smelting  Co.  v.  Sisam,  37:  976, 
191  Fed.  293,  112  C.  C.  A.  37. 


DAMAGES,  III.  kk-1,  2. 


sg; 


Tck.  Injury  to  business. 

Punitive  damages,  see  supra,  35. 

Loss  of  profits,  see  infra,  671,  679. 

Injury  to  business  as  result  of  exercise  of 

eminent  domain,  see  infra,  5o,5,  556. 
Evidence  as  to,  see  Evidence,  1729. 

508.  Loss  of  customers  and  empl-oyees  is  a 
natural  consequence  of  wrongfully  inter- 
fering with  another's  business  by  forbidding 
sales  under  threat  of  prosecution,  for  which 
the  wrongdoer  is  liable  in  damages.  Sparks 
V.  McCrary,  22:  1224,  47  So.  332,  156  Ala. 
382. 

509.  The  damages  to  be  awarded  to  an 
abutting  property  owner  for  the  closing  of 
a  public  alley  do  not  include  loss  occa- 
sioned bv  injury  to  his  business.  Hender- 
son V.  Lexington,  22:  20,  111  S.  W.  318,  132 
Ky.  390. 

I.  Condemnation     or     depreciation     in 
value  by  eminent  domain. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Payment  of  damages  as  abandonment  of  ap- 
peal, see  Appeal  and  Error,  10. 

Review  on  appeal  of  award,  see  Appeal  and 
Error,  941-944. 

Prejudicial  error  as  to,  see  Appeal  and 
Error,  1365-1367. 

Prejudicial  error  in  admission  of  evidence 
on  question  of,  see  Appeal  and  Error, 
1165. 

Interest  on  amount  awarded,  see  Appeal 
and  Error,  1550;  Interest,  28,  29; 
Trial,  1161. 

Conferring  upon  public  service  commission 
power  to  determine,  see  Constitution- 
al Law,  128,  552;  Statutes,  352. 

Due  process  as  to,  see  Constitutional  Law, 
552,  559,  560. 

Effect  of  deed  of  land  to  convey  right  to 
damages  for  right  of  way  appropriated, 
see  Deeds,  47. 

Who  entitled  to,  see  Eminent  Domain,  III. 
c,  2, 

Trial  de  novo  of  question  of,  on  appeal,  see 
Eminent  Domain,  175. 

For  consequential  injuries  from  construc- 
tion of  street  grade,  see  Highways,  III. 

Sufficiency  of  evidence  to  take  question  of, 
to  jury,  see  Trial,  109,  110. 

Instructions  as  to,  see  Trial,  993-996. 

Impeaching  witness  testifying  on  question 
of,  see  Witnesses,  140.      .  ;    ;    . 

510.  The  damages  to  be  awarded  for  the 
turning  of  sewage  into  a  stream  by  the 
pernianent  plant  of  a  municipal  corpora- 
tion should  be  assessed  on  the  theory  of  a 
permanent  taking  under  the  right  of  emi- 
,nent  domain.  McLaughlin  v.  Hope,  47:  137, 
155  S.  W.  910,  107  Ark.  442. 

511.  The  measure  of  damages  for  perma- 
nent injuries  to  lands  caused  by  the  con- 
struction thereon  of  a  public  improvement 
Digest  1-52  L.R.A.(N.S,) 


without  right,  which  injuries  do  not  totally 
destroy  such  lands,  is  the  difference  between 
the  actual  cash  value  thereof  at  the  time 
immediately  preceding  the  injury  and  the 
actual  cash  value  immediately  after  the  in- 
jury, with  legal  interest  thereon  to  the 
time  of  trial.  Boise  Valley  Constr.  Co.  v. 
Kroeger,  28:  968,  105  Pac.  1070,  17  Idaho, 
384. 

512.  The  proper  measure  of  damages  on 
appeal  from  condemnation  proceedings  to 
remove  a  mill-dam  is  the  difference  between 
the  value  of  the  mill  property  before  the 
removal  of  the  dam  and  loss  of  the  water 
power,  and  its  value  after  the  removal  has 
taken  place.  Mayn^rd  v.  Drainage  Dist. 
No.  2,  52:  1004,  143  N.  W.  927,  94  Neb. 
610.  (Annotated) 

513.  The  damages  to  be  awarded  for  a 
right  of  way  for  a  telegraph  line  is  the 
value  of  the  land  occupied  by  the  poles  and 
the  amount  of  decrease  in  the  value  of  the 
land  between  the  poles  owing  to  the  right 
to  use  it  jointly  with  the  property  owner 
for  stringing  and  maintaining  the  wires. 
Illinois  Ueleg.  News  Co.  v.  Meine,  26:  i8g, 
90  N.  E.  230,  242  111.  568.  (Annotated) 

514.  Four  thousand  dollars  is  excessive 
to  award  the  owner  of  the  fee  as  damages 
for  laying  a  pipe  line  for  natural  gas  along 
a  railroad  right  of  way  for  a  little  over  a 
quarter  of  a  mile  through  a  farm.  Calor 
Oil  &  Gas  Co.  V.  Franzeli,  36:  456,  109  S. 
W.  328,  128  Ky.  715. 

515.  A  public  utility  company  which  has 
surrendered  its  franchise,  and  received  an 
indeterminate  permit  under  the  Wisconsin 
utility  law,  is  not  entitled  to  compensation 
for  such  permit  upon  the  exercise  by  the 
municipality  of  its  right  to  purchase  the 
property  of  the  company.  Appleton  Water- 
works Co.  V.  Railroad  Commission,  47:  770, 
142  N.  W.  476,  154  Wis.  121. 

516.  In  condemnation  proceedings  for 
the  condemnation  of  a  strip  of  land  across 
a  railway  right  of  way  for  the  purpose  of 
a  waterway  with  walks  on  each  side,  to  con- 
nect two  public  navigable  lakes  in  a  city 
park  system,  and  taking  the  place  of  a  nat- 
ural water  course  between  the  lakes,  the 
railway  company  is  not  entitled,  as  a  part 
of  the  damages,  to  the  cost  of  a  bridge  to 
carry  its  tracks  over  the  waterway  and 
walks.  Chicago,  M.  &  St.  P.  R.  Co.  v.  Min- 
neapolis, 51:  236,  133  N.  W.  169,  115  Minn. 
460. 

2.  Value;  estimate  of. 

a.  In  general. 

(See  also   same   heading   in   Digest   L.R.A. 

1-10.) 

As  to  abutting  owners,  see  infra,  III.  1,  4,  a. 

Allowing  for  loss  of  profits,  see  infra,  679, 
680. 

Admissibility  of  parol  evidence,  generally,  as 
to  what  facts  railroad  commission  based 
its  award  upon,  see  Evidence,  904. 

Opinion  evidence  as  to.  see  Evidence,  1127.. 


808 


DAMAGES,  111.  1,  2. 


Relevancy  of  evidence  as  to,  see  Evidence, 
1694-1690,  1698,  J 699,  1747,  J920. 

Correctness  of  instructions  as  to,  see  Trial, 
993,  994. 

517.  The  constitutional  requirement  of 
compensation  for  property  taken  for  public 
use  applies  to  property  which  has  no  mar- 
ket value ;  but  in  such  cases  the  value 
must  be  ascertained  as  nearly  as  possible 
by  considering  facts  which  would  have 
weight  between  two  persons  bargaining  for 
the  property.  Idaho  &  W.  R.  Co.  v.  Co- 
lumbia Conference,  38:  497,  119  Pac.  60, 
20  Idaho,  568. 

518.  In  estimating  the  value  of  property 
taken  for  public  use,  it  is  the  market  value 
of  the  property  which  is  to  be  considered, 
and  the  market  value  of  property  is  the 
price  which  it  will  bring  when  it  is  offered 
for  sale  by  one  who  desires,  but  is  not 
obliged,  to  sell  it,  and  is  bought  by  one 
who  is  not  obliged  to  have  the  property. 
Idaho  &  W.  R.  Co.  v.  Columbia  Conference, 
38:  497,  119  Pac.  60,  20  Idaho,  568. 

519.  The  fair  market  value  of  the  land  to 
seeking  it  by  right  of  eminent  domain  is 
not  the  proper  measure  of  compensation  to 
be  awarded  for  it.  Sargent  v.  Merrimac, 
11:  996,  81  N.  E.  970.  196  Mass.  171. 

520.  The  owner  of  two  blocks  of  land,  a 
portion  of  which  is  condemned  by  a  rail- 
road company  for  its  corporate  use,  is  en- 
titled to  compensation  according  to  the 
most  advantageous  and  profitable  use  he 
could  make  of  his  property;  and  his  entire 
holding  will  not  be  treated  as  a  farm  in  or- 
der to  minimize  his  damages.  Missouri,  K. 
&  T.  R.  Co.  V.  Roe,  15:  679,  94  Pac.  259,  77 
Kan.   224.  (Annotated) 

521.  The  damages  to  be  awarded  for  in- 
jury to  land  through  the  exercise  of  the 
right  of  eminent  domain  cannot  be  based 
on  its  earning  capacity.  White  v.  Pennsyl- 
vania R.  Co.  38:  1040,  78  Atl.  1035,  229 
Pa.  480. 

522.  The  rental  value  of  land  is  com- 
petent to  be  considered  by  the  jur^-  in  deter- 
mining the  compensation  to  be  awarded  in 
case  it  is  taken  under  the  power  of  eminent 
domain.  Brown  v.  VV.  T.  Weaver  Power 
Co.  3:  912,  52  S.  E.  954,  140  N.  C.  33.S. 

523.  That  land  sought  under  the  power 
of  eminent  domain  is  subject  to  an  ease- 
ment in  favor  of  a  public-service  corpora- 
tion is  to  be  considered  in  fixing  the  com- 
pensation of  the  fee  owner.  Brown  v.  W.  T. 
Weaver  Power  Co.  3:912,  52  S.  E.  954,  140 
N.   C.  333. 

524.  The  structural  value  of  the  build- 
ings may  be  considered  in  arriving  at  the 
amount  to  be  awarded  as  damages  for  the 
condemnation  of  real  estate,  where  the 
buildings  are  well  adapted  to  the  kind  of 
land  on  which  they  are  erected,  and  en- 
hance its  value.  Re  New  York,  41:  411,  91 
N.  E.  278,  198  N.  Y.    84.  (Annotated) 

525.  In  determining  the  damages  to  be 
awarded  for  the  construction  of  a  railroad 
through  a  tract  of  land  which  has  been 
platted  as  an  addition  to  a  city,  but  not 
yet  opened  up,  the  fact  of  its  adaptability 
Digest  1-52  L.R.A.(N.S.) 


may  be  taken  into  consideration,  and  tlie 
market  value  of  the  property  determined 
with  reference  to  the  value  of  the  lots.  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  Theodore  Max- 
field  Co.  26:  mi,  126  S.  W.  83,  94  Aik. 
135. 

526.  A  void  contract  for  an  exclusive 
right  of  way  by  a  public  serviie  corpora- 
tion across  the  farm  of  a  private  citizen  can 
form  no  basis  for  an  award  of  damages  in 
a  proceeding  by  a  rival  company  to  con- 
demn a  right  of  way  across  the  same  farm. 
Calor  Oil  &  Gas  Co.  v.  I'ranzell,  36:  456, 
109  S.  W.  328,  128  Ky.   715. 

527.  If  a  railroad  commission  in  deter- 
mining the  compensation  to  be  paid  a  wa- 
terworks company  for  its  plant,  wliich  is 
taken  by  a  municipality,  takes  into  con- 
sideration, in  connection  with  other  data 
bearing  thereon,  an  estimate  of  the  present 
cost  of  reproduction  of  the  plant,  such  esti- 
mate cannot  rightly  include  the  cost  of 
trenching,  and  of  breaking  up  and  relaying 
permanent  pavements,  for  the  laying  of  new 
service  pipes  from  the  main  to  the  corpora- 
tion cock  in  the  curb,  since  such  expence 
properly  belongs  to  the  consumer.  Apple- 
ton  Waterworks  Co.  v.  Railroad  Commis- 
sion, 47:  770,   142  N.  W.  476,  1.54  Wis.  121. 

(Annot-ited) 

528.  The  compensation  to  be  allowed  a 
property  owner  for  the  opening  of  a  road 
through  the  property  should,  under  a  Con- 
stitution requiring  compensation  for  prop- 
erty taken,  injured,  or  destroyed,  be  de- 
termined by  finding  the  difference  between 
the  actual  value  of  the  general  tract  im- 
mediately before,  and  the  actual  value  of 
the  remainder  immediately  after,  the  tak- 
ing, excluding  from  consideration  any  en- 
hancement of  or  added  value  to  the  land 
not  taken,  by  reason  of  the  opening  or  use 
of  the  road.  Broadwav  Coal  Min.  Co.  v. 
Smith,  26:  565,  125  S.  W.  157,  136  Ky.  725. 
Improvements. 

529.  The  value  of  structures  placed  on 
land  of  an  individual  by  a  municipal  corpo- 
ration against  his  command  and  without 
statutory  authority  in  the  construction  of 
public  improvements,  prior  to  the  institu- 
tion of  proceedings  to  condemn  the  right 
under  the  power  of  eminent  domain,  must 
be  taken  into  consideration  in  fixing  the 
amount  to  bo  paid  for  the  land  taken.  St. 
Johnsville  v.  Smith,  5:  922,  77  N.  E.  617,  184 
N.  Y.  341.  (Annotated) 

530.  Damages  in  proceedings  for  the  con- 
demnation of  a  site  for  a  school  house  to  not 
include  the  value  of  a  school  building  and 
fences  erected  thereon  by  the  school  town- 
ship in  reliance  upon  a  judgment  in  con- 
demnation proceedings  previously  instituted 
against  the  husband  of  the  real  owner  in 
the  mistaken  belief  that  he  was  the  owner, 
where  the  real  owner  knew  of  such  proceed- 
ings, and  also  knew  of  the  erection  of  the 
improvements,  and  made  no  objections  there- 
to until  they  were  completed,  and  the  sams 
had  been  used  for  some  time  as  school  prop- 
erty. McClarren  v.  Jefferson  School  Twp. 
13:  417,  82  N.  E,  73.  169  Ind.  140. 


DA -MAGES,  III.  1,  3. 


SG9 


531.  One  who  has  purchased  a  house  re- 
moved from  property  needed  for  the  widen- 
ing of  a  street,  after  it  has  been  consid- 
ered in  awarding  compensation  to  the  own- 
er of  the  property  in  the  condemnation 
proceedings,  cannot  acquire  a  rigiit  to  have 
its  value  again  considered,  by  locating  it 
within  the  line  of  the  widened  street  upon 
property  the  title  to  wliich  has  not  yet  been 
acquired  by  the  public.  Re  >.'ew  York,  36: 
273,   89   N.    E.   814,    1%    ^.    Y.   255. 

(Annotated) 

b.  Value  for  siwciul  use. 

(See  also   same   heading   in   Digest   Jj.R.A 
1-10.) 

Due  process  of  law  as  to,  see  Constitutiox- 

AL  Law,  559,  560. 
Ascertainment   of  going  value   of   plant  of 

public  utility  corporation,  see  Eminent 

Domain,  168. 

532.  Where  property  sought  to  be  taken 
under  condemnation  proceedings  has  no 
market  value,  evidence  is  admissible  to 
show  tliat  the  property  is  valuable  for  some 
peculiar  or  specific  purpose,  or  is  especially 
valuable  en  account  of  its  formation,  lo- 
cation, natural  or  artificial  adaptability  to 
a  particular  use,  or  to  the  peculiar  use  to 
which  it  is  then  applied.  Idaho  &  W.  R. 
Co.  v.  Columbia  Conference.  38:  497,  119 
Pac.  60,  20  Idaho,  568. 

533.  In  fixing  the  damages  for  the  taking 
of  a  portion  of  the  property  of  a  college 
for  railroad  purposes,  the  jury  may  con- 
.sider  the  character  of  the  location,  its 
special  fitness  and  adaptability  for  the  uses 
to  which  it  is  then  or  may  be  devoted,  the 
state  of  development  and  improvement  of 
the  property,  the  nature  of  tlie  improve- 
ments, and  the  depreciation  that  will  re- 
sult to  the  remaining  portion  of  the  prop- 
erty after  the  severance  therefrom  of  the 
part  taken  under  condemnation.  Idaho  & 
W.  R.  Co.  V.  Columbia  Conference,  38:  497, 
119  Pac.  60,  20  Idaho,  568. 

534.  In  a  proceeding  to  assess  damages 
for  injury  to  school  proper'.y  through  the 
grounds  of  which  a  right  of  way  is  con- 
demned for  railroad  purposes,  the  jury  can- 
not consider,  upon  the  question  of  total  de- 
struction of  the  property  for  school  purposes, 
the  fact  that  the  officers,  acting  conscien- 
tiously, would  be  justified  in  abandoning 
the  use  of  the  building  for  such  purposes. 
Ran  Pedro,  L.  A.  &  S.  L.  R.  Co.  v.  Salt  Lake 
aty  Bd.  of  Edu.  11:645,  90  Pac.  565.' 32 
Utah,  305. 

535.  That  a  farm  lies  on  the  direct  route 
between  gas  wells  and  the  market  does  not 
bring  it  within  the  rule  that  the  fact  that 
property  has  a  peculiar  adaptability  and  in- 
creased market  value  because  of  its  suit- 
ableness for  the  purpose  for  which  it  is 
sought  may  be  taken  into  consideration  in 
awarding  damages  for  taking  it,  so  as  to 
increase  the  damages  in  case  a  right  of 
way  across  it  is  sought  for  a  pipe  line. 
Digest   1-52  L.R.A.(N.S.) 


Calor   Oil   &   Gas   Co.   v.   Franzell,   36:  456, 
109  S.  W.  328,  128  Ky.  716. 

536.  The  value  of  land  on  a  river  bank 
sought  under  the  power  of  eminent  domain, 
for  a  pond  to  supply  a  water  power,  an 
part  of  the  natural  power  at  that  point, 
may  be  considered  in  fixing  the  compensa- 
tion to  be  paid.  Brown  v.  VV.  T.  Weaver 
Power  Co.  3:  912,  52  S.  E.  954,  140  N.  C. 
333.  (Annotated) 

537.  The  existence  of  a  water  supply  in  a 
tract  of  land  sought  by  a  municipal  corpora- 
tion for  that  purpose  cannot  be  considered, 
in  fixing  the  damages  to  be  allowed  for  it, 
any  further  than  it  would  have  added  to  the 
value  of  the  land  in  the  open  market. 
Sargent  v.  Merrimac,  11:  996,  81  N.  E.  970, 
196  Mass.  171.  (Annotated) 

538.  The  possibility  that  one  seeking  land 
by  right  of  eminent  domain  may  secure  the 
right  from  the  legislature  to  carry  water 
contained  in  it  to  supply  municipalities,  can- 
not be  considered  in  fixing  the  compen- 
sation to  be  awarded  for  it.  Sargent  v. 
Merrimac,  11:996,  81  N.  E.  970,  196  Mass. 
171. 

539.  The  compensation  to  be  allowed  a 
railroad  company  for  the  taking  of  its. 
switch  yards  for  park  purposes  includes  not 
only  the  value  of  the  land  as  land,  but  its 
value  in  connection  with  the  uses  to  which 
it  is  being  devoted,  such  as  the  effect  of  the 
taking  on  the  traffic  of  the  road,  but  dis- 
regards the  cost  of  establishing  other 
vards.  Southern  R.  Co.  v.  Memphis,  41: 
828,  148  S.  W.  662,  126  Tenn.  267. 

540.  The  damages  to  be  awarded  for  the 
appropriation  of  a  right  of  way  for  a  log- 
ging railroad  through  a  canyon  cannot  in- 
clude the  value  of  the  property  for  the 
purpose  of  such  road,  based  upon  the  as- 
sumption that  all  the  limber  from  the 
watershed  of  the  stream  which  flows  through 
it  will  eventually  pass  down  the  canyon, 
if  the  timber  belongs  to  strangers  to  the 
proceeding,  so  that  the  route  to  be  taken 
by  it  depends  upon  their  will  alone,  Meskill 
&  C.  R.  R.  Co.  V.  Luedinghaus,  51:  1090, 
139  Pac.  52,  78  Wash.  366. 

541.  A  tract  of  shore  land  and  an  island 
lying  in  the  adjoining  river,  which  was  se- 
cured under  a  separate  title,  are  not  to  be 
considered  as  one  tract  in  assessing  dam- 
ages for  a  railroad  right  of  way  on  the  for- 
mer, where,  although  connected  by  a  ferry, 
and,  at  times  of  low  water,  by  dry  land, 
they  have  been  subjected  to  an  independent 
and  distinctly  separate  use,  and  the  fact 
that  the  owner  had  a  theory  that  he  might 
use  the  shore  tract  as  a  feed  ground  tor 
cattle  raised  on  the  island  is  too  indefinite 
to  become  a  basis  for  assessment  of  dam- 
ages. St.  Louis,  M.  &  S.  E.  R.  Co.  v.  Au- 
buchon,  9:  426,  97  S.  W.  867,  199  Mo.  352. 

( Annotated ) 

,3.  Consequential  injuries. 

(See   also    same   heading  in  Digest   L.R.A. 

1-70.) 

Nominal  damages,  see  supra,  4. 


870 


DAMAGES,  III.  1,  3. 


To  abutting  owners,  see  infra,  III.  1,  4. 
Right  to  compensation  for,  see  Eminent  DO' 

MAIN,  III.  e. 
Instructions  as  to,  see  Trial,  995. 
See  also  supra,  513. 

542.  In  the  exercise  of  the  right  of  emi- 
nent domain  under  the  statute  of  Oklahoma, 
which  provides  for  the  appointment  of  com- 
missioners to  assess  the  injuries  sustained 
by  individuals  because  of  the  exercise  of 
such  right,  which  statute  contains  a  pro- 
vision with  reference  to  the  duties  of  such 
commissioners,  as  follows:  "And  they  shall 
inspect  said  real  property  and  consider  the 
injury  which  such  owner  may  sustain  by 
reason  of  such  railroad;  and  they  shall  as- 
sess the  damages  which  said  owner  will  sus- 
tain by  such  appropriation  of  his  land," — 
damages  to  be  allowed  are  not  limited  to  the 
real  estate  taken  and  injured,  but  may  be 
such  damages  as  the  owner  actually  sus- 
tains to  either  his  real  or  personal  property 
by  such  appropriation  of  his  land.  Blincoe 
V.  Choctaw,  0.  &  W.  R.  Co.  4:  890,  83  Pac. 
903,    16   Okla.    286.  (Annotated) 

543.  Under  the  statutes  of  Oklahoma, 
damages  in  condemnation  proceedings  for 
railroad  right-of-way  purposes  are  not  lim- 
ited to  the  real  estate  taken  and  injured, 
but  may  be  such  damages  as  the  owner  actu- 
ally sustains  to  either  his  real  or  personal 
property  by  the  appropriation  of  his  land, 
and  by  reason  of  such  railroad.  Arkansas 
V^allev  &  W.  R.  Co.  v.  Witt,  13:  237,  91  Pac. 
897.  19  Okla.  262. 

544.  A  verdict  returned  by  the  jury  in  a 
proceeding  to  condemn  land  is  excessive 
where  it  includes  consequential  damages, 
although  no  proof  is  oflered  from  which 
any  fair  and  reasonable  estimate  of  the 
amount  of  such  damages  can  be  made,  and 
when  the  amount  awarded  is  far  above  the 
highest  proved  value  of  the  land  actually 
appropriated.  Postal  Teleg.  Cable  Co.  v. 
Peyton,  3:  333,  52  S.  E.  803,  124  Ga.  746. 

545.  The  compensation  to  be  awarded  for 
taking  a  right  of  way  for  a  railroad 
through  a  tract  of  land  must  include  not 
only  the  value  of  the  property  taken,  but 
the  diminished  value  of  the  residue.  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  Theodore  Max- 
field  Co.  26:  iiii,  126  S.  W.  83,  94  Ark. 
135. 

546.  Where  a  railroad  company  condemn- 
ing a  part  only  of  a  tract  of  land  does  not 
indicate  or  stipulate  the  specific  manner  in 
which  it  intends  to  use  the  property,  or  the 
number  of  tracks  it  proposes  to  lay,  or 
whether  it  will  use  the  land  for  switching 
purposes,  the  jury  may  consider  the  prob- 
able damages  that  will  be  sustained  by  the 
remaining  land  if  the  land  taken  is  put  to 
the  most  injurious  use  to  which  the  rail- 
road company  may  lawfully  put  it  under 
the  condemnation  proceedings.  Idalio  & 
W.  R.  Co.  V.  Columbia  Conference,  38:  497, 
119  Pac.  60,  20  Idalio,  568. 

547.  The  damages  for  a  railroad  right 
of  way  may  include  compensation  for  the 
burden  imposed  upon  the  landowner  of 
furnishing  lateral  support  to  the  road,  with 
Digest  1-52  L.R.A.(N.S.) 


the  tracks  laid,  and  with  any  traffic  and 
any  speed  which  may  be  used  thereon,  to 
the  full  width.  Manning  v.  New  Jersey 
Short  Line  R.  Co.  (N.  J.  Err.  &  App.)  32: 
155,  78  Atl.  200,  80  N.  J.  L.  349. 

548.  A  railroad  company  cannot  be  re- 
quired to  pay  for  the  total  destruction  of 
school  property  through  the  grounds  of 
which  it  runs  its  tracks  if  the  cfTect  of 
operation  of  trains  so  near  tlie  building 
upon  the  efficiency  and  safety  of  the  school 
can  be  reasonably  overcome  bj'  those  in 
charge  of  the  school.  San  Pedro,  L.  A.  &  S. 
L.  R.  Co.  V.  Salt  Lake  City  Bd.  of  Edu. 
11:  645,  90  Pac.  565,  32  Utah,  305. 

549.  The  fact  that  the  school  authorities 
have  abandoned  for  school  purposes  a  build- 
ing a  portion  of  the  grounds  surrounding 
wiiich  has  been  taken  for  a  railroad  right  of 
way  cannot  be  considered  bj'  the  jury  in 
determining  the  injury  to  tlic  propertv  not 
taken.  San  Pedro,  L.  A.  &  S.  L.  11.  Co.  v. 
Salt  Lake  Citv  Bd.  of  Edu.  11:  645,  90  Pac. 
505,  32  Utah,'  305. 

550.  In  a  proceeding  to  assess  damages 
flowing  to  a  landowner  by  reason  of  the 
construction  across  his  premises  of  a  tele- 
graph line  under  the  power  of  eminent  do- 
main, compensation  may  be  awarded  both 
for  the  land  actually  taken  by  the  tele- 
graph company  and  for  all  consequential 
damages  arising  from  the  erection  and  main- 
tenance of  its  poles,  wires,  or  other  fixtures ; 
but,  before  a  recovery  can  be  had  for  con- 
sequential damages,  proof  must  be  adduced 
which  discloses  the  nature  and  extent  there- 
of, and  furnishes  data  from  which  a  reasona- 
ble and  proper  estimate  of  the  amount  of 
compensation  to  which  the  landowner  is  en- 
titled may  be  made.  Postal  Teleg.  Cable 
Co.  V.  Peyton,  3:  333,  52  S.  E.  803,  124  Ga. 
746.  ( Annotated ) 

551.  The  measure  of  damages  for  injuries 
to  trees  growing  on  land  adjoining  land 
condemned  as  a  right  of  way  for  a  tele- 
phone and  telegraph  line  is  that  part  of 
the  depreciation  in  value,  at  the  time  of 
trial,  of  the  entire  tract  not  taken,  caused 
by  the  injuries  to  the  trees  thereon  con- 
sidered as  a  part  of  the  realty,  by  the  ap- 
propriation of  a  part  of  the  land  to  the 
uses  of  the  party  condemning.  Tri-State 
Teleph.  &  Teleg.  Co.  v.  Cosgriff,  26:  1171, 
124  N.  W.  75,  19  N.  D.  771. 

552.  The  measure  of  damages  for  injuries 
to  trees  growing  on  land  condemned  as  a 
right  of  way  for  a  telephone  and  telegiaph 
line  is  that  part  of  the  damage  sustained 
at  'the  time  of  the  trial  by  the  property 
taken  which  was  caused  by  the  injuries  to 
the  trees.  Tri-State  Teleph.  &  Teleg.  Co. 
V.  Cosgriff.  26:  1171,  124  N.  W.  7.5,  19  N. 
D.  771. 

553.  The  inconvenience  resulting  from  the 
loss  of  a  home  is  not  to  be  taken  into  con- 
sideration in  awarding  damages  for  the  con- 
demnation, under  right  of  eminent  domain, 
of  a  homestead.  Madisonville,  H.  &  E.  R. 
Co.  V.  Ross,  13:  420,  103  S.  W.  330,  126  Ky, 
138. 


DAMAGES,  III.  1,  4,  5. 


871 


Danger;  possible  injuries. 

See  also  infra,  556. 

554.  The  danger  to  which  occupants  of  the 
remaining  land  and  the  stock  thereon  will 
be  exposed  by  the  operation  of  a  railway 
over  land  taken  by  eminent  domain  pro- 
ceedings cannot  be  considered  in  assessing 
the  damages  for  injury  to  the  land  not 
taken.  Indianapolis  &  C.  Traction  Co.  v. 
Larrabee,  lo:  1003,  80  N.  E.  413,  168  Ind. 
237.  (Annotated) 
Injury  to  business. 

Loss  of  profits,  see  infra,  679. 

555.  Testimony  by  commissioners,  who 
fixed  the  damages  for  land  taken  by  right  of 
eminent  domain,  five  years  after  the  award, 
aided  by  memoranda  furnished  by  one  of 
them,  that  they  allowed  a  certain  amount  for 
interruption  of  business,  is  not  sufficient 
to  reduce  the  award  by  that  amount,  where 
there  was  evidence  before  them  that  the 
market  value  of  the  land  was  more  than  the 
sum  awarded.  Fitzhugh  v.  Chesapeake  & 
O.  R.  Co.  17:  124,  59  S.  E.  415,  107  Va.  158. 

556.  The  compensation  to  be  made  for  the 
taking  by  one  railroad  of  an  easement  of 
crossing  the  tracks  of  another  should  be 
based  on  the  depreciation  in  value  of  the 
property,  resulting  from  the  joint  use  of  the 
tracks :  and  the  value  of  the  portion  actual- 
ly used,  and  the  consequent  depreciation,  if 
any,  of  the  value  of  the  remainder  for  rail- 
road purposes,  should  be  considered;  but 
mere  interruption  or  inconvenience  in  the 
transaction  of  business,  increased  liability 
to  accidents,  and  the  stopping  or  flagging  of 
trains  at  crossings,  if  required  by  statute 
or  ordinances,  do  not  constitute  elements  of 
damage.  Kansas  City,  S.  &  G.  R.  Co.  v. 
Louisiana  Western  R.  Co,  5:  512,  40  So. 
627,  116  La.  178. 

4:.  As  to  abutting  owners. 

a.  In     general;     railroads    and     street 
railroads  in  streets. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Nominal  damages,  see  supra,  4. 

Setting  off  benefits,  see  infra,  581,  588,  589. 

Right  to  compensation,  see  Eminent  Do- 
main, III.  e,  2. 

As  additional  servitude  for  which  compen- 
sation may  be  made,  see  Eminent  Do- 
main, IV.' b,  2. 

Evidence  on  question  of,  see  Evidence,  1G96. 

Instructions  as  to,  see  Trial,  995. 

557.  The  measure  of  damages  to  which  a 
property  owner  is  entitled  for  the  taking,  in 
an  adjoining  highway,  of  a  strip  of  land 
for  a  telephone  and  telegraph  line,  is  the 
present  value  of  the  owner's  interest  in  the 
land  actually  taken,  and  the  depreciation 
in  value  sustained,  at  the  time  of  the  trial, 
by  land  adjoining  that  taken,  by  the  ap- 
propriation to  the  uses  of  the  party  con- 
demning. Tri-State  Teleph.  &  Teleg.  Co. 
V.  CosgriflF,  26:  1 171,  124  N.  W.  75,  19  N. 
D.  771. 

IMeest  1-52  i:<.R.A.(N.S.) 


558.  The  measure  of  damages  to  which 
a  property  owner  is  entitled  for  the  con- 
struction, in  the  adjoining  highway,  of  an 
interurban  street  railroad,  is  the  difference 
in  value  of  the  property  free  from  and  sub- 
ject to  the  burden.  Abbott  v.  Milwaukee 
Light,  Heat  &  Traction  Co.  4:  202,  106  N, 
W.  523,  126  Wis.  634. 

559.  Upon  the  question  of  damages  to  be 
awarded,  abutting  owners  for  the  condemna- 
tion by  an  interurban  railway  of  the  right 
to  operate  cars  along  the  tracks  of  a  street 
railway  operated  under  a  limited  franchise, 
the  fact  that  the  right  to  continue  the  tracks 
was  made  perpetual  should  be  taken  into 
consideration,  and  also,  in  mitigation  of 
damages,  the  fact  of  the  existence  of  the 
street  railway,  which  under  its  franchise, 
must  continue  to  operate  the  road  for  a  con- 
siderable period  of  time.  Gosa  v.  Milwau- 
kee Light,  Heat,  &  Traction  Co.  15:531,  114 
N.  W.  815,  134  Wis.  369.  (Annotated) 

560.  A  property  owner  is  not  entitled  to 
be  reimbursed  any  portion  of  the  expense 
which  has  been  assessed  against  him  for 
paving  the  street  in  front  of  his  property, 
as  a  condition  to  the  laying  of  street  rail- 
way tracks  therein,  although,  had  the  tracks 
been  laid  before  the  pavements  were  con- 
structed, a  portion  of  the  cost  would  have 
been  assessed  against  the  railway  company. 
Birmingham  R.  Light  &  Power  Co.  v. 
Smyer,  47:  597,  61  So.  354,  181  Ala.  121. 

561.  The  damages  for  taking  a  right  to 
construct  a  subway  under  a  street,  under  a 
statute  providing  that,  on  the  filing  of  the 
oath  of  the  commissioners,  the  citj^  shall  be 
seised  in  fee  of  the  property  rights  sought 
to  be  acquired,  need  not  be  limited  to  the 
value  of  the  property  immediately  before 
and  immediately  after  the  filing  of  such 
oath,  but  may  include  compensation  for  in- 
jury to  the  property  by  the  prosecution  of 
the  work,  and  that  which  with  reasonable 
certainty  will  be  inflicted  by  interference 
with  lateral  support  throug.'i  the  proper 
construction  and  operation  of  the  enter- 
prise, including  the  rental  value  of  the 
premises  during  the  period,  if  any,  while 
they  are  actually  untenantable.  Re  Board 
of  Rapid  Transit  R.  Comrs.  36:  647,  90  N. 
E.  456,  197  N.  Y.  81. 

b.  Elevated  railroads. 

(See  same  heading  in  Digest  L.R.A.  1—70. J 

5.  In  highway  cases. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Nominal  damages,  see  supra,  5. 

Presumption  as  to  damages  allowed  when 
highway  opened,   see  Highways,   3. 

Right  to  compensation,  see  Eminent  Do- 
main, III.  e,  4. 

562.  The  damage  to  be  awarded  to  abut- 
ting owners  for  the  closing  of  an  alley  is 
the  difference  in  the  market  value  of  the 
property   with    the    alley   open    and    closed. 


872 


DAMAGES,  III.  1,  6. 


Henderson   v.  Lexington,   22:  20,   HI    S.  W. 
:n8,  132  Ky.  390. 

5t>3.  A  city,  in  causing  the  construction  of 
an  approach  to  a  bridge  over  a  canal  which 
was  enlarged  and  maintained  by  a  water 
power  company  across  a  public  street  un- 
der a  contract  giving  the  city  drainage 
rights,  and  apportioning  the  burden  of  con- 
struction and  maintenance  of  bridges,  does 
not  proceed  under  its  charter  power.over  its 
streets,  or  to  erect  bridges,  so  as  to  require 
compensation  for  the  resulting  injury  to 
private  property  to  be  measured  by  the  rule 
governing  the  taking  of  property  for  public 
use  under  its  charter  powers.  Kanson  v. 
«ault  Ste.  Marie,  15:49,  107  N.  VV.  439,  143 
Mich.  C61. 

,  564.  The  building  of  a  railroad  embank- 
ment across  that  portion  of  a  street  whicli 
has  been  vacated  by  the  city  is  not  an 
element  to  be  considered  in  assessing  dam- 
ages caused  by  the  vacation,  of  the  street, 
to  property  abutting  on  that  portion  of  the 
street  not  vacated,  as  the  building  of  the 
railroad  was  no  part  of  the  street  vacation. 
Newark  v.  Hatt  (N.  J.  Err.  &  App.)  30:  637, 
77  Atl,  47,  79  N.  J.  L.  548. 
Laying  street  ont  across  railroad 
track. 

5(J5.  A  railroad  company  across  whose 
tracks  a  street  is  opened  is  not  entitled  to 
compensation  for  the  fee  of  the  land  taken, 
if  the  public  acquires  only  an  easement 
therein.  Louisville  &  N.  R.  Co.  v.  Louis- 
ville, 24:  1213,  114  S.  W.  743,  131  Ky.  108. 

666.  The  full  compensation  to  which  a 
railroad  company  is  entitled  for  the  open- 
ing of  a  street  across  its  tracks  is  the 
difference  in  value  between  the  exclusive 
and  the  joint  use  of  the  property.  Louis- 
ville &  N.  R.  Co.  V.  Louisville,  24:  1213,  114 
S.  W.  743,  131  Ky.  108. 

567.  The  damages  to  be  awarded  a  rail- 
road company  for  the  opening  of  a  street 
across  its  track  should  not  include  liabil- 
ity for  injuries  by  surface  water,  wiiich  may 
result  from  the  construction  of  the  high- 
way, since,  for  negligence  causing  the  water 
to  flow  upon  the  railroad  property,  the 
municipality  would  be  liable  in  an  action 
for  damages.  Louisville  &  N.  R.  Co.  v. 
Louisville,  24:  1213,  114  S.  W.  743,  131  Ky. 
108. 

568.  The  damages  to  be  awarded  to  a 
railroad  company  for  the  construction  of  a 
highway  across  its  tracks  should  not  in- 
clude the  cost  of  making  and  maintaining 
the  crossing,  or  of  protecting  it  by  safety 
appliances,  or  compensation  for  increased 
liability  to  accidents  because  of  the  cross- 
ing. Louisville  &  N.  R.  Co.  v.  Louisville, 
24:  1213,  114  S.  W.  743,  131  Ky.  108. 

569.  In  condemning  a  right  of  way  for  a 
street  across  railway  tracks,  the  railway 
company  may  recover  for  the  diminution 
in  value  of  its  exclusive  right  to  the  use 
for  railcray  purposes  of  the  property  sought 
to  be  condemned,  caused  by  the  extension 
and  use  of  the  street,  but  it  cannot  re- 
cover for  necessary  structural  changes,  as 
such  changes  are  imposed  by  the  statute, 
enacted  under  the  police  power  of  the  state, 
Digest  1-52  L.R.A.(N.S.) 


which  authorizes  the  laying  out  and  con- 
demnation of  land  for  the  street.  Grafton 
V.  St.  Paul,  M.  &  M.  R.  Co.  22:  i,  113  N.  W. 
598,  16  N.  D.  313. 

570.  The  cost  of  constructing  the  crossing 
cannot  be  recovered  by  a  railroad  company 
in  eminent  domain  proceedings  to  lay  out 
a  highway  across  its  tracks.  New  York,  C. 
&  St.  L.  R.  Co.  V.  Rhodes,  24:  1225,  86  N. 
E.  840,  171  Ind.  521. 

Establishing  or  changing  street 
grade. 

Nominal  damages,  see  supra,  6. 

Setting  off  benefits,  see  infra,  579,  590. 

Right  to  compensation,  see  Eminent  Do- 
main, 276-283. 

Opinion  evidence  as  to,  see  Evidence, 
1125-1132. 

Interest  on,  see  Interest,  23. 

571.  The  measure  of  damages  in  case  of 
injury  to  abutting  property  by  reason  of 
the  first  establishment  of  a  street  grade  by 
the  municipality  is  the  difference  in  value 
of  the  property  before  and  after  the  estab- 
lishment of  the  grade,  except  where  the  cost 
of  restoring  the  property  to  its  original  con- 
dition with  reference  to  the  street  is  less 
than  the  difference  in  value,  in  which  case 
the  cost  of  the  restoration  is  the  measure 
of  the  property  owner's  relief.  Sallden  v. 
Little  Falls,  13:  790,  113  N.  W.  884,  102 
Minn.  358. 

572.  The  measure  of  damages  to  abutting 
property  for  the  change  of  a  street  grade 
is  the  difference  between  the  fair  market 
value  of  the  property  immediately  before 
it  became  known  that  the  work  would  be 
done  and  just  after  the  work  was  com- 
pleted. Lexington  v.  Chenault,  44:  301,  152 
S.  W.  939,  151  Ky.  774.  (Annotated) 

573.  The  measure  of  damages  sustained  by 
property  by  reason  of  a  change  in  the  grade 
of  the  street  on  which  it  fronts  is  the  con- 
sequential diminution  of  the  market  value 
of  the  property  or  of  the  improvements 
thereon  by  reason  of  the  grading,  as  well 
as  the  necessary  cost  of  changes  and  alter- 
ations of  the  improvements  and  of  the 
premises  in  order  to  preserve  them  and  to 
conform  to  the  new  grade.  Manning  v. 
Shreveport,  13:  452,  44  So.  882,  119  La.  1044. 

574.  The  cost  of  laying  a  new  sidewalk  in 
consequence  of  a  change  in  a  street  grade 
may  be  taken  into  consideration  in  esti- 
mating the  damages  of  an  abutting  owner, 
under  a  constitutional  provision  that  pri- 
vate property  shall  not  be  damaged  for 
public  use  without  compensation,  although 
no  allowance  can  be  made  for  it  as  a  sep- 
arate item.  Swift  &  Co.  v.  Newport  News, 
3:  404,  52  S.  E.  821,  105  Va.  108. 

6.  Advantages;  offsets. 

a.  In  general. 

(See  also   same  heading  in  Digest   L.R.A. 

1-10.) 

575.  A  constitutional  provision  to  the  ef- 
fect that  damages  in  condemnation  proceed- 
ings shall  be  assessed  irrespective  of  bene- 


DAMAGES,  III.  1,  6. 


873 


fits  applies  to  damages  assessed  for  diminu- 
tion in  value  of  property  not  taken.  St. 
Louis,  1.  JNl.  &  S.  R.  Co.  v.  Theodore  Max- 
field  Co.  26:  iiii,  126  S.  W.  83,  94  Ark. 
135. 

576.  The  existence  of  a  space  under  a  pub- 
lic viaduct,  which  may  be  used  by  the  pub- 
lic who  shall  make  use  of  an  alley  to  reach 
property  of  the  abutting  owner,  to  turn 
their  vehicles  to  facilitate  egress,  may  be 
taken  into  consideration  in  estimating  the 
damage  to  his  property  by  closing  one  end 
of  the  alley,  although,  by  contract  with  the 
city,  a  depot  company  has  been  given  a 
right  to  use  such  space  in  perpetuity,  if  the 
use  by  the  depot  company  is  not  exclusive. 
Henderson  v.  Lexington,  22:  20,  111  S.  W. 
3J8,   132  Ky.  390. 

577.  Benefits  from  a  public  improvement 
to  land  not  taken  cannot  be  set  off  against 
the  value  of  the  land  taken,  under  a  con- 
stitutional requirement  that  private  proper- 
ty shall  not  be  taken  for  public  use  with- 
out just  compensation,  where  no  question 
of  assessment  of  benefits  is  involved,  and 
the  taking  vests  the  fee  in  the  public,  which 
may,  at  discretion,  abandon  the  improve- 
ment and  divert  the  land  to  other  uses. 
New  York  v.  Consolidated  Oas  Co.  16:  335, 
83  N.  E.  299,  190  N.  Y.  350. 
Establishment  of  higliw^ay. 

See  also  supra,  528. 

578.  Benefits  cannot  be  set  off  against 
the  consequential  injuries  to  property  a 
portion  of  which  is  taken  for  a  public 
road,  where  the  Constitution  requires  com- 
pensation to  be  made  for  property  taken, 
injured,  or  destroved.  Broadway  Coal  Min. 
Co.  V.  Smith,  26:  565,  125  S.  W.  157,  136 
Ky.   725. 

CIianp;e   of  street  grade. 
Special  benefits,  see  infra,  590. 

579.  No  damages  can  be  recovered  by  an 
abutting  property  owner  for  a  change  of  a 
street  grade  if  the  improvement  has  added 
to  the  market  value  of  the  property  not- 
withstanding the  expense  of  adjusting  it  to 
the  new  grade,  under  a  constitutional  pro- 
vision that  private  property  shall  not  be 
damaged  for  public  use  without  compensa- 
tion. Swift  &  Co.  V.  Newport  News,  3:  404, 
52  S.  E.  821,  105  Va.  108. 
Construction  of  railroad. 

580.  In  assessing  damages  for  injury  to 
land  not  taken  in  a  proceeding  to  secure  a 
railroad  right  of  way  benefits  may  be  set 
off  whitj  actually  enhance  the  market  value 
of  the  property,  although  they  are  common 
to  other  projwrty  in  the  vicinity.  Peoria, 
B.  &  C.  Traction  Co.  v.  Vance,  9:  781,  80  N. 
E.  134,  225  111.  270.  (Annotated) 

581.  The  owner  of  the  fee  of  a  street  and 
property  abutting  thereon  is  entitled,  in 
case  of  the  construction  by  the  municipal- 
ity of  a  subway  for  rapid  transit  purposes 
thereunder,  in  its  proprietary  capacity,  to 
compensation  for  the  property  actiially 
taken,  without  a  deduction  for  benefits,  and 
also  to  just  compensation  for  the  injury 
done  to  the  remainder.  Re  Board  of  Rapid 
Transit  R.  Comrs.  36:  647,  90  N.  E.  456,  197 
N.  Y,  81.  •  (Annotated) 
Digest  1-52  £..R.A.(N.S.) 


b.  Special  benefits, 

(See  also   same   heading   in  Digest   L.Rji. 
1-10.) 

Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  225. 

582.  Special  benefits  may  be  set  off,  in 
proceedings  to  condemn  a  right  of  way  for 
a  railroad  company,  against  the  value  of  the 
part  taken  and  damages  shown  to  have 
accrued  to  the  remainder.  Mantorville  R. 
&  T.  Co.  V.  Slmtrerland,  11:  277,  112  N.  W. 
1033,  101  Minn.  488. 

583.  The  term  'special  benefits,"  as  used 
in  railway  condemnation  proceedings,  has 
the  same  meaning  as  when  employed  in 
highway,  drainage,  or  municipal  improve- 
ment proceedings  only  so  far  as  private 
property  is  taken  for  public  use  by  such 
proceedings;  in  other  respects,  identity  of 
meaning  must  be  determined  with  reference 
to  distinctions  due  to  exaction  of  payment 
as  a  condition  precedent  to  the  subsequent 
use  of  railway  facilities,  to  the  natural  dif- 
ference in  accessibility  to  the  improvement, 
and  to  the  judicial  nature  of  proceedings  to 
condemn,  as  distinguished  from  the  admin- 
istrative character  of  ordinary  local  im- 
provement assessments.  Mantorville  R.  & 
T.  Co.  v.  Slingerland,  11:277,  112  N.  W. 
1033,  101  Minn.  488. 

584.  The  common  benefits  accruing  to  a 
community  from  the  construction  of  a  rail- 
way are  not  special  benefits  available  as  a 
set-off  in  condemnation  proceedings.  Man- 
torville R.  &  T.  Co.  V.  Slingerland,  n:  277, 
112  N.  W.   1033,  101   Minn.  488. 

585.  Mere  increase  in  facilities  of  trans- 
portation by  reason  of  the  construction  of 
a  railway  does  not  amount  to  a  special  bene- 
fit which  may  be  set  off  in  condemnation 
proceedings.  Mantorville  R.  &  T.  Co.  v. 
Slingerland,  11:277,  112  N.  W.  1033,  101 
Minn.  488. 

586.  Special  benefits  available  as  a  set-off 
in  condemnation  proceedings  must  be  pro 
tanto  a  fair  equivalent  for  the  land  parted 
with  and  the  damages  inflicted,  and  to  that 
end  they  must  be  special,  not  common; 
direct,  not  consequential ;  substantial,  not 
speculative;  proximate,  not  remote;  actual, 
and  not  constructive.  Mantorville  R.  &  T. 
Co.  V.  Slingerland,  11:  277,  112  N.  W.  1033, 
101    Minn.   488. 

587.  Enhanced  value  of  land  for  com- 
mercial or  quarrying  purposes,  due  to  tho 
construction  of  a  railway  across  the  prem- 
ises, is  not  a  special  benefit  which  may  be 
set  off  in  condemnation  proceedings  against 
the  value  of  the  land  taken  for  the  rail- 
road right  of  way.  Mantorville  R.  &  T.  Co. 
v.  Slingerland,  11:  277,  112  N.  W.  1033,  101 
Minn.  488. 

588.  The  jury  cannot  be  permitted  to  con- 
sider the  question  of  setting  off  of  special 
benefits  against  the  damages  to  be  allowed  to 
abutting  property  owners  for  the  construc- 
tion of  an  interurban  railway  in  a  city  street 
where  no  such  benefits  are  shown  by  the  evi- 
dence.    Gosa   V.   Milwaukee   Light,  Heat   & 


874 


DAMAGES,  III.  m,  n. 


Traction   Co.    15:  531,   114  N.   W.   815,   134 
Wis.   369. 

589.  The  operation  of  a  street  railway 
along  a  street  cannot  be  considered  as  a 
benefit  to  be  set  off  against  the  damages  to 
be  awarded  abutting  property  owners  upon 
the  condemnation  of  the  right  to  operate 
interurban  cars  along  the  railway  tracks 
where  the  duty  to  operate  the  street  cars 
will  continue  under  the  street-railway  fran- 
chise after  the  acquisition  of  rights  by  the 
interurban  company.  Gosa  v.  Milwaukee 
Light,  Heat  &  Traction  Co.  15:  531,  114  N. 
W.  815,  134  Wis.  369. 

Change  of  street  grade. 
See  also  supra,  579. 

590.  In  estimating  the  value  of  property 
for  the  purpose  of  assessing  the  damages 
sustained  by  it  from  a  change  of  the  grade 
of  the  street  on  which  it  abuts,  resulting 
benefits  common  to  the  community  should 
not  be  taken  into  account,  but  only  those 
which  are  peculiar  to  the  property  dam- 
aged. Manning  v.  Shreveport,  13:  452,  44 
So.  882,  119  La.  1044. 

m.  In  injunction  cases. 

(See  also   same   heading  in  Digest   L.R.A. 
1-10.) 

Kight   to   damages   in   injunction    suit,   see 
Injunction,  432-434,  436-440. 

591.  The  damages  for  wrongfully  enjoin- 
ing the  erection  of  a  dwelling  on  a  parcel  of 
real  estate  are  the  reasonable  rental  value 
of  the  property  with  the  building  upon  it, 
during  the  time  its  enjoyment  was  prevent- 
ed by  the  injunction,  where  the  building 
would  have  been  erected  but  for  the  injunc- 
tion, and  was  actually  built  as  soon  as  the 
injunction  was  dissolved.  Stone  v.  Hunter 
Tract  Improv.  Co.  39:  180,  122  Pac.  370, 
68  Wash.  28.  (  Annotated ) 

592.  In  an  action  on  an  injunction  bond, 
given  in  a  suit  brought  to  restrain  the  en- 
forcement of  a  judgment,  the  extent  to 
which  the  amount  collectable  on  the  judg- 
ment has  been  reduced  in  consequence  of 
the  injunction  is  a  proper  element  of  dam- 
age. Stull  V.  Beddeo,  14:  507,  112  N.  W. 
315,  78  Neb.  114. 

Counsel  fees. 

593.  A  bond  to  pay  all  damages  sustained 
by  the  issuance  of  an  injunction  may  in- 
clude attorneys'  fees  necessary  to  secure  its 
dissolution.  Littleton  v.  Burgess,  16:  49,  91 
Pac.  832,  16  Wyo.  58.  (Annotated) 

n.  In    trademark,,     patent,     and    copy- 
right cases. 

(See  also   same  heading  in  Digest   L.R.A. 
1-10.) 

Trademark  cases. 

Punitive  damages,  see  supra,  36,  37. 
Evidence  in  action  to  recover,  see  Evidenck, 
2083. 

594.  One  guilty  of  simulating  another's 
trademark,  and  also  of  unfair  trade  in  lead- 
Digest  1-52  Ii.R.A.(N.S.) 


ing  customers  to  believe  that  his  product  is 
that  of  the  other,  is  liable  not  only  for  the 
profits  realized  from  goods  containing  the 
fraudulent  trademark,  but  also  for  the  prof- 
its resulting  from  the  wrongful  acts  commit- 
ted in  the  unfair  competition.  W.  R.  Lynn 
Shoe  Co.  v.  Auburn-Lynn  Shoe  Co.  4:  960, 
62  Atl.  499,   100  Me.  461. 

595.  One  who  has  made  castings  for  a 
stove  upon  which  another  has  placed  a 
trademark,  and  placed  thereon  marks  which 
infringe  the  trademark,  and  sold  them  as 
those  of  the  owner  of  the  trademark,  can- 
not be  regarded  as  an  accidental  and  unin- 
tentional infringer,  so  as  to  avoid  an  ac- 
counting for  profits.  Reading  Stove  Works, 
Orr,  P.  &  Co.  V.  S.  M.  Howes  Co.  21:979, 
87  N.  E.  751,  201  Mass.  437. 

596.  One  infringing  a  trademark  in  the 
production  and  sale  of  a  portion  of  his  prod- 
uct cannot,  in  accounting  with  the  owner 
of  the  trademark,  charge  against  the  profits 
thereon  any  portion  of  the  general  expenses 
of  the  business  not  shown  to  have  been  in- 
curred by  dealing  in  the  protected  product. 
Nelson  v.  J.  H.  Winchell  &  Co.  23:  11 50,  89 
N.  E.  180,  203  Mass.  75. 

597.  Failure  of  infringers  of  a  trademark 
to  keep  accurate  accounts  of  the  amounts  of 
their  expenses  and  profits  after  notice  to 
stop  the  infringement  may  be  taken  as  evi- 
dence against  them,  in  determining  the  prof- 
its for  which  they  are  accountable  to  the 
owner  of  the  trademark.  Nelson  v.  J.  H. 
Winchell  &  Co.  23:  1150,  89  N.  E.  180,  203 
Mass.  75. 

598.  That  the  owner  of  a  trademark  aided 
his  licensee  in  acquiring  the  reputation  of 
being  the  manufacturer  of  the  product  sold 
under  it  does  not  make  it  inequitable  to  re- 
quire the  licensee  to  account  for  the  profits 
which  he  made  by  continued  use  of  the 
trademark  after  the  license  had  been  with-  » 
drawn.     Nelson  v.  J.  H.  Winchell  &  Co.  23: 

1 150,  89  N.  E.  180,  203  Mass.  75, 

599.  The  sum  fixed  by  the  parties  to  be 
paid  annually  for  the  use  of  a  trademark 
and  business  name  is  evidence  of  the  dam- 
ages to  be  allowed  for  their  wrongful  use 
after  the  expiration  of  the  contract  right. 
Nelson  v.  J.  H.  Winchell  &  Co.  23:  1150,  89 
N.  E.  180,  203  Mass.  75. 

600.  The  absence  of  evidence  that  the 
owner  of  a  trademark  has  sustained  damage 
because  of  anothei's  use  of  it  does  not  make 
it  inequitable  to  hold  the  latter  liable  to 
him  for  profits  made  by  its  use.  Nelson  v. 
J.  H.  Winchell  &  Co.  23:  1150,  89  N.  E.  180, 
203  Mass.  75. 

601.  A  jobber  who  has  acquired  a  trade- 
mark on  the  goods  dealt  in  by  him  cannot, 
in  case  his  manufacturer  infringes  his  trade- 
mark, claim  from  him  the  manufacturer's 
profit,  but  only  that  which  would  have  come 
to  him  as  jobber,  and  which  was  protected 
by  his  trademark.  Nelson  v.  J.  H.  Winchell 
&  Co.  23:  1 150,  89  N.  E.  180,  203  Mass. 
75. 

602.  In  ascertaining  the  profits  of  a  busi- 
ness for  which  the  infringer  of  a  trademark 
is  liable  to  account,  the  master  may  treat  a 
cost  sheet  prepared  by  one  of  the  original 


DAMAGES,  III.  o,  1. 


875 


firm  of  the  infringers,  who  was  fully  ac- 
quainted with  the  business,  as  evidence  of 
the  cost,  in  the  absence  of  explicit  evidence 
to  the  contrary.  Nelson  v.  J.  11.  Winchell 
&  Co.  23:  1150/89  X.  E.  180,  203  Mass.  75. 

603.  In  determining  the  amount  of  profits 
for  which  an  infringer  of  a  trademark  is  li- 
able to  account  to  its  owner,  sales  for  which 
the  price  cannot  be  collected  should  not  be 
considered.  Nelson  v.  .1.  H.  ^Yinchell  &  Co. 
23:  1 150,  89  N.  E.  180.  203  Mass.  75. 
Patent  cases. 

Presumption  and  burden  of  proof,  see  Evi- 
dence, 657. 

604.  Such  part  only  of  the  commingled 
profits  are  as  attributable  to  the  use  of  his 
invention  can  be  recovered  by  the  patentee 
in  a  suit  against  an  infringer  who  has 
added  noninfringing  and  valuable  improve- 
ments contributing  to  the  profits.  VVest- 
inghouse  Electric  &  Mfg.  Co.  v.  Wagner 
Electric  &  Mfg.  Co.  41:653,  32  Sup,  Ct. 
Rep.  691,  225  U.  S.  604,  56  L.  ed.  1222. 
Copyright  cases. 

605.  The  owner  of  a  copyrighted  story  is 
entitled  to  the  profits  accruing  from  the 
production  o  an  unauthorized  dramatiza- 
tion of  it.  Dam  v.  Kirk  La  Shelle  Co.  41: 
1002,  175  Fed.  902,  99  C.  C.  A.  392. 

o.  Mental  anguish. 

1.  Accompanying  physical   suff eying. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Punitive  damages,  see  supra,  38. 

Bar  to  recovery  for,  see  Action  or  Suit,  91. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  681,  682. 

Evidence  as  to,  see  Evidence,  1806. 

Right  of  married  woman  to  recover  in  her 
own  right  for  mental  anguish  resulting 
from  injury,  see  Husband  and  Wiee, 
176. 

Railroad  company'  liability  for  failure  of 
employees  to  gather  up  remains  of  per- 
son killed  on  tracks,  see  Master  and 
Servant,  885. 

Instructions  as  to,  see  Trial,  890. 

See  also  supra,  351,  383,  385 ;  infra,  616. 

606.  The  mental  suffering  for  which  the 
law  permits  an  allowance  of  damages  when 
it  is  caused  by  personal  injuries  inflicted 
by  another's  negligence  may  include  the 
mental  worry,  distress,  grief,  and  mortifica- 
tion which  may  be  shown  to  exist  because 
of  the  injury.  Merrill  v.  Los  Angeles  Gas 
&  Electric  Co.  31:559,  111  Pac.  534,  158 
Cal.  499. 

607.  One  suing  for  personal  injuries  may 
recover  for  the  bodily  sufi'ering  and  mental 
pain  which  are  inseparable,  and  which  neces- 
sarily and  inevitably  result,  from  the  in- 
jury, but  not  for  the  mortification  and  dis- 
tress of  mind  from  the  contemplation  of 
Digest  1-52  Ii.R.A.(N.S.) 


his  crippled  condition  and  its  eflfect  upon  tte 
esteem  of  his  fellows,  as  it  is  too  remote, 
indefinite,  and  intangible.  Southern  P.  Co.  v. 
Hetzer.  1:  288,  135  Fed.  272,  68  C.  C.  A.  26. 

608.  Mental  suffering  is  not  an  element 
of  damages  for  an  accidental  injury  re- 
sulting in  the  slight  shortening  of  a  person's 
leg, — a  disfigurement  which  cannot  render 
his  presence  objectionable  to  any  person  or 
make  him  an  object  of  pity  or  ridicule.  Dia- 
mond Rubber  Co.  v.  Harryman,  15:775,  92 
Pac.  922,  41  Colo.  415.  (Annotated) 

609.  The  allowance  of  damages  for  per- 
sonal injury  cannot  include  mental  suffer- 
ing wliich  the  injured  person  endures 
because,  on  account  of  his  accident,  his  fam- 
ily has  no  means  of  support  and  his  chil- 
dren no  way  of  procuring  an  education. 
Ferebee  v.  Norfolk  Southern  R.  Co.  52; 
II 14,  79  S.  E.  685.  163  N.  C.  .351. 

610.  Damages  for  personal  injuries  to  a 
pregnant  woman  may  include  compensation 
for  mental  suffering  because  of  probablp 
deformity  of  the  child  because  of  the  in- 
jury, as  well  as  for  her  disappointment  at 
the  birth  of  a  deformed  child,  but  not  foi^ 
regret  because  of  the  child's  suffering  on 
account  of  the  deformity.  Prescott  v.  Robin- 
son, 17:  594,  69  Atl.  522,  74  N.  H.  460. 

(Annotated) 

611.  A  pregnant  woman  who,  by  reason  of 
injuries  negligently  inflicted,  suffers  a  mis- 
carriage, is  entitled  to  recover  such  dam- 
ages as  will  fairly  compensate  her  for  the 
pain  and  suffering  occasioned  by  the  mis- 
carriage, but  not  for  the  pain  and  suffering 
occasioned  by  the  loss  of  the  child.  Mor- 
ris V.  St.  Paul  City  R.  Co.  17:  598,  117  N. 
W.  500,  105  Minn.  276. 

To  passenger. 

In  absence  of  physical  suffering,  see  infra, 

III.  o,  2,  c. 
Evidence  as  to,  see  Evidence,  1720,  1721. 
See  also  supra,  256,   301. 

612.  Mental  anguish  for  fear  of  going  into 
consumption  is  not  an  element  of  damage  to 
be  allowed  against  a  railroad  company  be- 
cause of  whose  neglect  to  heat  its  passenger 
station  a  passenger  is  made  ill  with  cokl 
and  fever.  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Buckner,  20:  458,  115  S.  W.  923,  89  Ark. 
58.  (Annotated) 

613.  The  damages  for  wrongful  assault  of 
a  passenger  by  pushing  another  against  her, 
causing  physical  injury  and  mental  suffer- 
ing, are  such  as  will  reasonably  compensate 
her  for  the  physical  and  mental  suffering 
directly  caused  by  the  physical  impact  and 
fright.  Chesapeake  &  O.  R.  Co.  v.  Robi- 
nett,  45:  433,  152  S.  W.  976,  151  Ky.  778. 

614.  The  damages  to  be  allowed  against 
a  carrier  for  failing  to  protect  a  passenger 
from  assault  by  a  fellow  passenger  may  in- 
clude compensation,  not  only  for  the  bodily 
pain,  but  for  the  mental  suffering,  anxiety, 
suspense,  and  sense  of  wrong  from  insult, 
connected  therewith,  Jansen  v.  Minneapo- 
lis &  St.  L.  R.  Co.  32:  1206,  128  N.  W.  826, 
112  Minn.  496. 


878 


DAMAGES,  III.  o,  2. 


2.  Unaccompanied  by  physical  injury. 

a.  In  general. 

(See  also  savie  heading  in  Digest  L.R.A. 
1-70.) 

Right  of  action  for  causing  relapse  of  con- 
valescent woman  by  threatening  and 
abusive  language,  see  Case,  2. 

Judicial  notice  as  to  effects  of  mental  suffer- 
ing, see  Evidence,  61. 

Evidence  as  to,  see  Evidence,  1 750. 

Right  to  recover  for  fright  or  injuries  due 
thereto,  see  Fright, 

Proximate  cause  of  injury  from  friglit,  see 
Proximate  Cause,  X. 

See  also  supra,  310,  315,  320. 

015.  Damages  may  be  recovered  for  men- 
tal suffering  when  caused  by  wilful  and 
wanton  wrongs  or  wrongs  committed  with 
jnaliee  and  intention  to  cause  mental  dis- 
tress even  when  unaccompanied  by  bodily  in- 
jury. Small  V.  Ix)nergan,  25:  976,  105  Pac. 
27,  81  Kan.  48. 

616.  One  who  swallows  several  pieces  of 
broken  glass  contained  in  a  bottle  of  a  bev- 
erage placed  on  sale,  which  are  subsequently 
removed  from  his  stomach  leaving  apparent- 
ly no  permanent  injury,  may  recover  from 
the  manufacturer  of  the  beverage  for  men- 
tal sufl'ering  caused  by  fear  of  death  while 
the  glass  was  in  his  stomach,  but  not  for 
the  vague  fear,  after  the  removal  of  the 
glass  and  his  restoration  to  health,  that  at 
some  time  iii  the  future  he  may  again  suffer 
as  the  result  of  his  injuries.  Watson  v. 
Augusta  Brewing  Co.  i:  1178,  52  S.  E.  152, 
124  Ga.  121. 

617.  Damages  cannot  be  allowed  to  a  par- 
ent as  compensation  for  the  sorrow  and  dis- 
tress which  results  from  the  wrongful  kill- 
ing of  his  child.  Bond  v.  United  Railroads. 
48:  687,  113  Pac.  306,  159  Cal.  270. 

618.  In  an  action  in  behalf  of  a  father  for 
killing  his  son  by  wrongful  act  or  negli- 
gence, the  jury  is  not  confined  to  compen- 
sative damages  for  mere  pecuniary  injury, 
but  may  consider  the  sorrow,  the  mental 
distress,  and  bereavement  of  the  father. 
Kelley  v.  Ohio  River  R.  Co.  2:  898,  52  S. 
E.  520,  58  W.  Va.  210.  (Annotated) 

619.  In  an  action  to  recover  for  wrong- 
ful death,  the  jury  are  not  limited  to  mere 
pecuniary  damages,  but  may  allow  for 
mental  anguish  and  suffering  of  near  rela- 
tives of  deceased,  who  are  his  distributees. 
Wigal  V.  Parkersburg,  52:  465,  81  S.  E.  554, 
—  VV.  Va.  — . 

620.  A  parent  cannot  recover  damages  for 
mental  shock  and  distress  on  account  of  tlie 
unlawful  arrest  and  prosecution  of  minor 
children  on  a  charge  of  malicious  mischief, 
nor  for  illness  resulting  from  such  shock. 
Sperier  v.  Ott,  7:  518,  41  So.  323,  116  La. 
1087.  (Annotated) 

621.  A  man  cannot  recover  damages  for 
mental  suffering  because  of  a  carrier's  de- 
lay in  delivering  the  baggage  of  his  intended 
wife,  which  causes  postponement  of  the 
wedding,  at  least,  where  the  carrier  was 
Digest  1-52  KR.A.(N.S.) 


not  notified  of  the  anticipated  wedding,  ao 
that  it  could  not  have  had  such  damages  in 
contemplation.  Eller  v.  Carolina  &  \V.  R. 
Co.  3:  225,  52  S.  E.  305,  140  N.  C.  140. 

(Annotated) 

622.  Damages  for  mental  pain  and  an- 
guish, illness,  threatened  miscarriage,  and 
possibly  permanent  injuries,  due  to  fright 
resulting  from  an  assault  committed  by  a 
stranger  in  the  liearing  of  a  pregnant  wom- 
an, are  too  remote  to  form  a  basis  of  action 
on  her  behalf  against  the  assailant.  Reed 
V.  Ford,  19:  225,  112  S.  W.  600,  129  Ky.  471. 
Breach  of  contract. 

As  to  telegram  or  telephone  message,  see  in- 
fra, III.  0,  2,  b. 

Caused  by  delay  in  delivering  baggage,  see 
Action  or  Suit,  105. 

Sufficiency  of  pleading  to  permit  recovery 
for,  see  Pleading,  84. 

See  also  supra,  206,  277;  infra,  632. 

623.  Damages  for  mental  anguish  can  be 
recovered  in  an  action  for  breach  of  con- 
tract only  where  the  breach  amounts  to  an 
independent,  wilful  tort.  Beaulieu  v.  Great 
Northern  R.  Co.  19:  564,  114  N.  W,  353,  103 
Minn.  47. 

624.  The  liability  of  a  bank  which  refuses 
to  return  a  fund  deposited  with  it  to  defray 
the  expenses  of  the  sick  wife  of  the  de- 
positor, by  which  treatment  is  delayed,  does 
not  include  compensation  for  the  mental 
suffering  of  the  depositor.  Smith  v.  San- 
born State  Bank,  30:  517,  126  N.  W,  779, 
147  Iowa,  640. 

625.  One  cannot  recover  damages  for 
mental  anguish  because  of  the  loss  by  a  pho- 
tographer of  undeveloped  negatives  of  her 
child,  who  died  after  the  exposures  were 
made,  although  he  was  notified  of  the  facts 
when  they  were  delivered  to  him  for  de- 
velopment and  printing,  if  they  were  de- 
livered by  an  agent  who  did  not  suggest  or 
give  notice  that  she  was  acting  for  the 
mother.  Thomasson  v.  Hackney  &  Moale 
Co.  47:  1 120,  74  S.  E.  1022,  159  N.  C.  299. 

(Annotated) 

626.  Mental  suffering  by  a  man  because 
a  physician  whom  he  has  employed  to  at- 
tend his  sick  wife  delays  upon  the  way,  and 
thereby  fails  to  minister  to  her  suffering, 
is  not  an  element  of  damages  to  be  recovered 
for  breach  of  the  contract.  Adams  v. 
Brosius,  51:  36,  139  Pac.  729,  69  Or.  513. 

(Annotated) 

627.  The  damages  to  be  awarded  for 
wrongful  removal  by  a  teleplione  company 
of  a  subscriber's  phone  may  include  com- 
pensation for  the  necessary  inconvenience 
and  humiliation  fairly  attributable  to  the 
wrong  done,  and  an  allowance  may  be  made 
for  anxiety  increased  by  loss  of  telephone 
communication  with  a  relative  sick  in  the 
hospital,  of  which  fact  the  telephone  com 
panv  has  notice.  Carmichael  v.  Southern 
Pelf  Teleph.  &  Teleg.  Co.  39:  651,  72  S.  E. 
619,  157  N.  C.  21. 

628.  Mental  suffering  from  humiliation  is 
not  an  element  of  damages  in  an  action  for 
breach  of  contract  for  refusal  to  admit  a 
ticket  holder  to  a  dance  hall  because  in  the 
uniform    of    a    petty    oKicer    of    the    United 


DAMAGES,  III.  o,  2. 


877 


States  Xiu-y, — especially  where  he  knew,  or 
could  have  ascertained  without  humiliation, 
that  uniformed  men  were  barred;  and  where 
he  violated  tlie  naval  regulations  by  appear- 
ing in  civilian  clothes  in  order  to  get  the 
ticket;  and  where,  when  he  presented  him- 
self for  admission,  he  was  offered  a  civil- 
ian's coat,  and  was  told  that  he  could  go  in 
if  he  would  put  it  on.  Buenzle  v.  Newport 
Amusement  Asso.  14:  1242,  68  Atl.  721,  29 
R.   I.  23.  (Annotated) 

629.  One  unlawfully  expelled  from  a 
bathing  establishment  under  humiliating 
circun'stances,  after  having  paid  for  ac- 
commodations tiierein,  may,  in  an  action 
for  breach  of  contract,  recover  damages  for 
the  indignity  attending  the  expulsion. 
Aaron  v.  Ward,  38:  204,  96  N.  E.  730.  203 
*r.  Y.  3.51.  (Annotated) 
Af  +0  corpse. 

Sufficiency   of   complaint   to   entitle   one   to 

recovery  of,  see  Pleading,  632. 
See  also  infra,  651. 

630.  Dn mages  for  mental  anguish  may  be 
recovered  in  an  action  by  a  husband  against 
a  common  carrier  for  soiling  and  ruining 
the  casket  containing  the  body  of  his  dead 
wife,  and  mutilating  and  disfiguring  tlie 
corpse,  by  negligently  and  wilfully  exposing 
the  casket  to  the  rain.  Lindh  v.  Great 
Northern  R,  Co.  7:  1018,  109  N.  W.  823,  99 
Minn.  408. 

631.  Parents  are  not  entitled  to  recover 
damages  for  mental  pain  and  anguish  oc- 
casioned by  the  negligent  mutilation  of  the 
dead  body  of  their  child,  due  to  the  careless 
handling  of  the  casket  containing  it,  by  the 
employees  of  a  carrier;  but  the  actual  dam- 
ages sust&ined  from  injury  to  the  coffin  or 
clothes  of  the  corpse  may  be  recovered. 
Long  V.  Chicago,  R.  I.  &  P.  R.  Co.  6:  883, 
86  Pac.  289,  1.5  Okla.  t\2.  (Annotated) 

632.  Damages  for  mental  anguish  cannot 
be  recovered  for  breach  of  a  contract  by  a 
railwaj'  company  to  transport  a  corpse  over 
its  line  to  a  particular  point,  and  to  de- 
liver it  there  to  an  intersecting  carrier,  to 
be  conveyed  to  its  place  of  destination,  where 
the  breach  consists  in  the  negligence  of  the 
tompany  in  carrying  the  corpse  beyond  the 
•onnecting  point,  thus  causing  a  delay  in 
the  funeral  arrangements,  in  the  absence  of 
wilful  or  malicious  misconduct  on  the  part 
of  the  company  or  its  agents.  Beaulieu  v. 
Great  Northern  R.  Co.  19:  564,  114  N.  W. 
353,  103  Minn.  47.  (Annotated) 
Assanlt. 

See  also  supra,  622. 

633.  Damages  for  mental  suffering  may 
be  awarded  to  one  upon  whom  an  assault  is 
committed  by  seizing  a  box  carried  by  her 
while  trading  in  defendants'  store  and 
searching  it  for  stolen  goods  in  the  presence 
of  others,  which  insult  and  indignity  was 
emphasised  by  the  offering  of  no  apology 
upon  discovering  that  the  contents  had  not 
been  obtained  in  their  store  and  by  ordering 
her  to  leave  the  store  when  she  complained 
of  the  treatment  extended  her,  although 
there  was  no  battery  or  bodily  injury  in- 
flicted, as  an  assault  is  a  wilful  infringe- 
Digest  1-52  L.R.A.(N.S.) 


I  ment  of  the  absolute  right  of  personal  se- 

I  curity  for  which  recovery  may  be  had  even 

I  in    the    absence    of    actual    bodily    injury. 

Small    V.    Lonergan,    25:  976,    105    Pac.    2*7, 

81    Kan.   48.  (Annotated) 

634.  One  who  decoys  a  woman  from  home 
in  the  night  on  a  fictitious  errand  of  mercy, 
attempts  to  take  undue  liberties  with  her, 
slanders  her  and  subjects  her  to  humiliating 
gossip  of  the  neighborhood,  may  be  liable 
to  answer  in  damages  not  only  for  the  as- 
sault, but  to  compensate  her  for  the  mental 
suffering,  humiliation,  and  disgrace  caused 
by  his  act.  Kurpgeweit  v.  Kirby,  33:  98, 
129  N.  W.  177,  88  Neb.  72,  (Annotated) 
Libel. 

Allegations  of  mental  anguish  in  complaint 
for  libel,  see  Ple.\ding,  218. 

635.  Mental  suffering  alone  can  be  made 
the  basis  for  damages  for  libel.  -Jozsa  v. 
Moroney,  27:  1041,  51   So.  90S,  125  La.  813. 

636.  The  influence  upon  plaintiff's  mind  of 
the  grief  experienced  by  his  wife  upon  read- 
ing a  libelous  article  regarding  him  is  not 
an  element  of  damage  recoverable  in  an  ac- 
tion for  the  libel.  Dennison  v.  Daily  News 
Pub.  Co.  23:  362,  118  N.  W.  568,  82  Neb.  675. 

(Annotated) 
Criminal  conversation. 

637.  Damages  for  criminal  conversation 
may  include  compensation  for  the  mental, 
suffering  of  the  husband.  Stark  v.  Johnson, 
16:  674,  95  Pac.  930,  43  Colo.  243. 

(Annotated) 

b.  Default  as  to  telegram  or  telephone 
message  or  the  transmission  of 
money. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Reducing  recovery  on  appeal,  see  Appeal 
AND  Error,  1599. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  161-165. 

Class  legislation  as  to,  see  Constitutional 
Law,  333. 

Due  process  in  statute  as  to,  see  Constitu- 
tional Law,  5()2. 

Failure  promptly  to  transmit  telegram  to 
secure  forwarding  of  corpse,  see  Tele- 
graphs, 47. 

Notice  of  probable  mental  suffering,  see 
Telfxiraphs,  52-54,  56-64. 

See  also  supra,  627. 

638.  In  the  absence  of  statute,  damages 
are  not  recoverable  for  mental  distress 
alone,  caused  by  negligent  delay  in  deliver- 
ing a  telegram.  Western  U.  Teleg.  Co.  v. 
(  houteau,  49:  206,  115  Pac.  879,  28  Okla. 
664.  (Annotated) 

639.  A  statute  rendering  telegraph  com- 
panies liable  for  mental  suffering  due  to 
negligence  in  receiving,  transmitting,  and 
delivering  messages  does  not  apply  in  case 
of  the  negligence  of  telephone  companies. 
Southern  Tele  ph.  Co.  v.  King,  39:  402,  146 
S.   W.   489,   103  Ark.   160. 

640.  Prolonging  mental  suffering  by  fail- 
ing to  deliver  a  telegram  that  would  reliefvo 


878 


DAMAGES,  III.  0,  2. 


it  is  as  much  a  ground  for  liability  as  caus- 
ing or  producing  the  suffering  originally. 
Middleton  v.  Western  U.  Teleg.  Co.  49:  305, 
02  So.  744,  183  Ala.  213.  (Annotated) 

641.  One  cannot  recover  damages  for 
mental  suffering  because  of  erroneous  belief 
that  some  misfortune  had  befallen  the  sen- 
dee of  an  undelivered  telegram  because  of 
his  failure  to  respond  to  it.  Western  U. 
Telcg.  Co.  V.  Garlington,  49:  300,  142  S.  W. 
854,  101   Ark.  487. 

642.  One  sending  a  telegram  to  another  to 
meet  him  and  be  ready  to  return  with  him 
by  next  train  cannot,  undei  a  statute  per- 
mitting a  recover}'  for  mental  anguish,  re- 
cover as  damages  for  delay  in  its  delivery, 
by  reason  of  which  he  is  not  able  to  return 
at  that  time,  compensation  for  mental  suf- 
fering because  he  fears  something  may  have 
befallen  the  sendee,  and,  having  only  one 
day's  leave  of  absence  from  his  employ- 
ment, thinks  he  may  be  discharged  for  over- 
staying his  time.  Western  U.  Teleg.  Co.  v. 
Shenep,  12:  886,  104  S.  W.  1-54,  83  Ark. 
476.  (Annotated) 

643.  One  to  whom  a  message  of  acquies- 
cence is  sent  by  a  surgeon  who  had  been  re- 
quested by  telegraph  to  operate  for  appen- 
dicitis may  recover  substantial  damages 
from  the  telegraph  company  for  nondelivery 
of  the  message,  because  of  the  mental 
suffering  endured  by  him,  because  uncertain 
whether  or  not  relief  would  reach  him  in 
time  to  prevent  death.  Alexander  v.  West- 
ern U.  Teleg.  Co  42:407,  74  S.  E.  449,  158 
N.  C.  473. 

644.  Mental  distress  suffered  by  a  woman 
who,  immediately  after  her  confinement, 
telegraphs  her  husband  to  come  home  im- 
mediately, because  his  answer  is  delayed 
and  she  imagines  that  he  is  ill  or  indiffer- 
ent, will  not  sustain  a  recovery  of  damages 
against  the  telegraph  company,  where  he 
promptly  obeys  the  summons,  and  there  is 
therefore  no  ground  for  actual  sorrow  or 
grief  which  the  prompt  delivery  of  the  mes- 
sage would  have  relieved.  W'estern  U. 
Teleg.  Co.  v.  McKenzie,  49:  296,  131  S.  W. 
684,  96  Ark.  218.  (Annotated) 

645.  A  woman  cannot  recover  damages 
for  mental  anguish  from  a  telegraph 
company  because  of  its  changing  a  message 
announcing  her  husband's  arrival  home  by 
a  certain  day  so  as  to  announce  a  date 
earlier  than  she  expected  him,  which  arises 
from  her  assumption  that  he  must  be  ill, 
and  worrying  because  he  did  not  come  when 
the  telegram  says  he  would.  Western  U. 
Teleg.  Co.  v.  Oastler,  49:  325,  119  S.  W. 
285,  90  Ark.  268. 

646.  A  telegraph  company  which  causes  a 
delay  of  a  couple  of  days  in  the  starting  of 
a  sick  child  for  another  climate  through 
loss  of  a  message  is  not  answerable  in  dam- 
ages for  the  mental  anguish  suffered  by  the 
father  pending  the  delay,  because  of  the 
child's  condition;  at  least,  if  there  was  noth- 
ing to  prevent  the  starting  of  the  child 
without  fixing  definitely  its  accommodations 
at  destination,  which  the  message  was  in- 
tended to  effect.  Mackay  Telegraph-Cable 
Digest  1-52  L.R.A.(N.S.) 


Co.  V.  Vaughan,  51:  404,  163  S.  W.  l.>8.  111 
Ark.    504. 

647.  A  woman  who,  in  the  exercise  of 
reasonable  care,  passes  the  niglit  in  a  rail- 
way station  where  rough-looking  men  are 
sleeping  on  the  floor,  because  of  the  failure 
of  a  telegraph  company  to  deliver  a  message 
requesting  friends  to  meet  her  on  a  mid- 
night train,  which  on  its  face  shows  that 
their  residence  is  3  miles  from  the  station, 
can  hold  the  company  liable  for  the  mental 
suffering  thereby  caused ;  the  local  condi- 
tions, with  notice  of  which  the  company  is 
charged,  being  such  that  the  street  cars  are 
not  running,  and  to  reach  her  friends  she 
must  pass  through  the  red-light  district. 
Postal  Teleg.  Cable  Co.  v.  Terrell,  14:  927, 
100  S.  W.  292,  124  Ky.  822.  (Annotated) 
Summoning    physician. 

648.  The  negligent  failure  of  a  telegraph 
company  to  transmit  and  deliver  within  a 
reasonable  time  a  telegram  summoning  a 
physician,  sent  on  behalf  of  a  sick  person, 
does  not  render  it  liable  to  such  person  for 
mental  and  physical  suffering  endured  be- 
tween the  time  when  the  physician  would 
have  come  if  the  telegram  had  been  prompt- 
ly delivered,  and  the  time  when  he  actually 
arrived.  Seifert  v.  Western  U.  Teleg.  Co. 
11:  1 149,  58  S.  E.  699,  129  Ga.  181. 

( Annotated ) 

Concerning  illness  or  death. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  161-165. 

Presumption  as  to  mental  suffering,  see  Evi- 
DEXCE,  681,  682, 

What  evidence  admissible  to  show,  see  Evi- 
dence, 1708. 

Sufficiency  of  proof  of  mental  anguish,  see 
Evidence,    2319. 

Sufficiency  of  findings  to  support  judgment 
for,  see  Tbial,  1129. 

See  also  Telegraphs,  52,  5.3,  56-60,  62. 

649.  Damages  for  mental  anguish  may  be 
allowed  against  a  telegraph  company  which 
negligently  fails  promptly  to  transmit  and 
deliver  a  telegram  announcing  a  death. 
Cates  v.  Western  U.  Teleg.  Co.  24:  1286,  66 
S.  E.  592,  151  N.  C.  497. 

650.  In  the  absence  of  any  proof  of  gross 
or  wanton  negligence,  a  telegraph  company 
is  not  liable  for  physical  sickness  which  fol- 
lows as  a  result  of  a  nervous  shock  or 
mental  anxiety  and  distress  because  of  negli- 
gent delay  in  delivering  a  telegram  an- 
nouncing the  death  of  a  relative,  whereby, 
and  on  account  of  which  delay,  the  ad- 
dressee, or  party  desirous  of  being  communi- 
cated with,  is  prevented  from  attending  the 
funeral  services.  Western  U.  Teleg.  Co.  v. 
Foy,  49:  343,  124  Pac.  305,  32  Okla.  801. 

(Annotated) 

651.  A  telegraph  company  which  fails  to 
deliver  a  telegram  directing  preparation  for 
a  funeral  is  liable  for  mental  suffering 
caused  by  the  exposure  of  the  corpse  for 
several  hours  to  the  rays  of  the  sun,  and  the 
delay  of  the  burial  to  a  very  late  hour  of 
the  night.  Lvles  v.  Western  U.  Teleg.  Co. 
12:  534,  57   S.'  E.   725,  77   S.   C.   174. 

652.  The  fact  that  plaintiff  in  an  action 
to  recover  damages  for  mental  anguish  from 


DAMAGES,  III.  o,  2. 


879 


nondelivery  of  a  telegram  in  time  to  enable 
him  to  attend  liis  father's  funeral  testified 
in  an  oral  cross-examination  for  the  pur- 
pose of  discovery  that  he  would  rather  give 
$100  than  miss  going  to  his  father's  funeral, 
and  that  he  would  not  take  $100  and  miss 
his  father's  funeral,  will  not  preclude  him 
from  recovering  a  greater  amount.  Nitka 
V.  Western  U.  Teleg.  Co.  49:  337,  135  N.  W. 
492,  149  Wis.  106. 

653.  Eleven  hundred  dollars  is  not  such 
an  excessive  allowance  to  a  father  for  men- 
tal suffering  in  being  deprived  of  the  op- 
portunity to  assist  in  preparing  the  body  of 
his  child  for  burial,  through  the  neglect  of 
a  telegraph  company  in  failing  promptly  to 
deliver  a  message  to  him,  that  the  appel- 
late court  can  set  the  verdict  aside  as  ar- 
bitrary or  intended  as  punishment.  West- 
ern U.  Teleg.  Co.  v.  Hill,  23:  648,  50  So. 
248,  163  Ala.  18. 

654.  The  intensification  of  the  grief  of  a 
man  by  being  delayed  for  twenty -four  hours 
in  reaching  home  after  the  death  of  his 
ivife,  because  of  failure  of  a  telegraph  com- 
pany to  deliver  a  message  to  him  announc- 
ing her  illness,  entitles  him  to  damages 
against  the  company  although  he  could  not 
have  reached  home  before  her  death  had  the 
message  been  delivered,  and  he  reached 
there  in  time  fo*-  the  funeral.  Maley  v. 
Western  U.  Teleg.  Co.  49:  327,  130  N.  W. 
1086,  151  Iowa,  228. 

655.  Where  damages  are  allowed  for  men- 
tal stifTering,  a  widowed  mother  may  recover 
for  such  suffering  caused  by  failure  to  de- 
liver her  telegram  by  reason  of  which  she 
is  deprived  of  the  consolation  of  her  son  at 
his  brother's  funeral  and  the  days  imme- 
diately following  it.  Western  U.  Teleg.  Co. 
v.  Garlington,  49:300,  142  S.  W'.  854,  101 
Ark.    487.  (Annotated) 

656.  Six  hundred  dollars  is  excessive  as 
damages  for  delaying  a  man  for  twenty- 
four  heurs  in  reaching  home  after  the 
death  of  his  wife,  because  of  failure  to  de- 
liver a  telegram  announcing  her  illness. 
Malev  v.  Western  U.  Teleg.  Co.  49:  327, 
130  N.  W.  1086,  151  Iowa,  228. 

(Annotated) 

657.  Damages  for  mental  suffering  caused 
by  failure  to  deliver  an  answer  announcing 
the  improvement  of  a  sick  relative  in  re- 
sponse to  a  message  seeking  information 
concerning  him  may  be  recovered  under  a 
statute  allowing  damages  for  mental  suf- 
fering caused  by  failure  to  deliver  tele- 
grams. Western  U.  Teleg.  Co.  v.  Hollings- 
worth,  11:  497,  102  S.  W.  681,  83  Ark.  39. 

( Annotated ) 

658.  A  mother  may  recover  damages  for 
mental  anguish  caused  by  failure  to  deliver 
to  her  husband  a  telegram  announcing  that 
their  child  had  been  sent  to  the  pesthouse 
with  a  contagious  disease,  by  reason  of 
which  she  was  deprived  of  his  advice  and 
counsel  in  her  distress.  Thurman  v.  W^est- 
em  U.  Teleg.  Co.  14:  499,  105  S.  W.  155,  127 
Ky.   137.  (Annotated) 

659.  Damages  cannot  be  recovered  for 
mental  suffering  for  nondelivery  of  a  tele- 
gram in  time  to  enable  the  sendee  to  at- 
Digest  1-52  KR. A  .(N.S.) 


tend  the  funeral  of  one  to  whom  he  was 
about  to  be  married,  but  to  whom  he  was 
not  in  the  slightest  degree  related.  Ran- 
dall V.  Western  U.  Teleg.  Co.  15:  277,  107 
S.  W.  235,   139  Ky.  373.  (Annotated) 

Refusal  to  pay  over  money  or  delay  in 
its  transmission. 

660.  When  the  known  probable  result  of 
the  wilful  refusal,  without  adequate  excuse, 
of  a  telegraph  company  to  pay  over  money 
to  one  entitled  thereto,  causes  one  to  travel 
for  more  than  twenty-four  hours  without 
food  or  funds,  he  may  recover  damages  for 
bodily  pain  and  suffering  and  for  mental 
pain  and  anguish  attendant  thereon.  West- 
ern U.  Teleg.  Co.  v.  Wells,  2:  1072,  39  So. 
838,   50   Fla.   474.  (Annotated) 

661.  A  telegraph  company  which  fails 
promptly  to  transmit  money  sent  by  a  father 
to  secure  the  forwarding  of  the  corpse  of  his 
daughter  for  burial  is  liable  to  him  for  men- 
tal pain  and  anguish  by  reason  of  the  de- 
lay in  shipment  of  the  corpse,  and  for  loss 
of  time  and  expenditure  of  money  there- 
by caused.  Cumberland  Teleph.  &  Teleg.  Co. 
V.  Quigley.  19:  575,  112  S.  W.  897,  129  Ky. 
788.  (Annotated) 

c.  Failtire  of  duty  to  passenger. 

(See   also   same   heading  in  Digest   L.R.A. 

1-10.) 

Caused  by  delay  in  delivery  of  baggage,  see 
Action  ok  Suit,  105. 

Mental  suffering  as  proximate  result  of  ejec- 
tion of  passenger,  see  Proximate 
Cause,  95. 

662.  In  the  absence  of  physical  injury, 
there  can  be  no  recovery  for  mental  anguish 
arising  solely  from  the  circumstances  that  a 
railroad  company  failed  to  carry  a  passen- 
ger to  his  destination  within  the  published 
schedule  time,  and  that  by  reason  of  the 
delay  the  passenger  failed  to  make  a  con- 
nection with  the  train  of  another  railroad 
company  upon  which  he  expected  to  con- 
tinue his  journey,  although  the  carrier's 
agents  were  informed  by  the  passenger 
while  en  route,  of  the  urgency  of  arriving 
at  his  destination  in  time  to  connect  witli 
the  train  of  the  other  company.  Central  of 
Georgia  R.  Co.  v.  Wallace,  49:  429,  80  S.  E. 
282,  141  Ga.  51,  (Annotated) 

663.  One  accompanying  her  invalid  sister 
on  a  railroad  journey,  who  does  not  make 
the  contract  for  the  transportation,  cannot 
recover  damages  for  mental  suffering  due 
to  the  physical  suffering  of  the  invalid  be- 
cause of  the  wrongful  acts  of  the  carrier  in 
its  manner  of  placing  her  on  the  train  and 
neglecting  to  assist  her  off.  Gulf,  C.  &  S.  F. 
R.  Co.  V.  Overton,  19:  500,  110  S.  W.  736. 
101  Tex.  583.  (Annotated) 

664.  Mental  suffering  due  to  disappoint- 
ment and  humiliation  because  of  refusal  of 
a  steamship  company  to  receive  and  trans- 
port a  passenger  without  a  ticket  which  had 
been  paid  for,  and  which  it  had  neglected  to 
forward  to  him,  could  be  taken  into  con- 
sideration as  an  element  of  the  damages  to 


880 


DAMAGES,  III.  p,  1. 


be  allowed  against  the  carrier  for  its  neg- 
ligence.     Zabron   v.   Cunard   S.    S.   Co.    34: 
751,  131   N.  W.  18,  151  Iowa,  345. 
Insult  aud  abuse. 

665.  A  carrier  is  answerable  in  damages 
for  mental  suffering  inflicted  upon  a  pas- 
senger by  insulting  language  addressed  to 
him  by  the  conductor  without  provocation, 
which  is  of  a  character  calculated  to  humili- 
ate, mortify,  and  disgrace  him.  Bleecker 
V.  Colorado  &  S.  R.  Co.  33:  386,  114  Pac. 
481,  50   Colo.   140.  (Annotated) 

666.  A  carrier  is  not  liable  for  mental  suf- 
fering and  humiliation  of  a  passenger  be- 
cause of  abuse  wilfully  heaped  upon  him  by 
the  carrier's  agent,  in  the  absence  of  physi- 
cal injury.  St.  Louis,  I.  M.  &  S.  R.  Co.  v 
Taylor,  13:  159,  104  S.  W.  551,  84  Ark.  42. 

( Annotated ) 
Ejection. 

667.  In  an  action  by  an  infant  of  ten- 
der years  for  wrongful  ejectment  from  a 
railway  car  or  train,  which  wrongful  eject- 
ment was  wilful  and  intentional,  fright  and 
terror  are  proper  elements  of  damage,  if 
such  ejectment  was  under  circumstances 
which  would  naturally  cause  fright  and 
terror  to  the  infant.  Cincinnati  Northern 
Traction  Co.  v.  Rosnagle,  35:  1030,  95  N.  E. 
884,  84  Ohio  St.  310. 

668.  A  passenger  wrongfully  ejected  from 
a  train  is  entitled  to  recover  reasimable  com 
pensation  for  the  indignity,  humiliation,  and 
mental  suffering  received  and  proximately 
resulting  from  the  expulsion.  Lindsay  v. 
Oregon  Short  Line  R.  Co.  12:  184,  00  Pac. 
984,  13  Idaho,  477.  (Annotated) 

669.  Damages  for  humiliation  cannot  be 
allowed  as  part  of  the  recovery  for  ejection 
of  a  passenger  from  a  train,  where  he  vol- 
untarily siffers  or  seeks  expulsion  in  order 
to  lay  the  foundation  for  a  damage  suit. 
Brenner  v.  Jonesboro,  L.  C.  &  E.  R.  Co. 
9:  1060,  100  S.  W.  893,  82  Ark.  128. 

(Annotated) 

670.  Compensatory  damages  are  recover- 
able for  mental  suffering  due  to  momentary 
fright  caused  by  the  wrongful  discharge  of 
a  passenger  by  a  sleeping  car  company,  al- 
though the  fright  was  attended  by  no  seri- 
ous circumstances  whatever  to  her  mind  or 
body.  Pullman  Co.  v.  Lutz,  14:  907,  45  So. 
675,  154  Ala.  517. 

p.  Loss  of  profits. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

In  trademark,  patent,  or  copyright  cases,  see 

supra,  594-605. 
Review    of    error    as    to,    see    Appeal   and 

Error,  1546. 
Evidence  as  to,  see  Evidence,  1752,   1753. 
Proximate  cause  of,  see  Proximate  Caube, 

43. 
As  question  for  jury,  see  Trial,  111. 
See  also  supra,  447. 

'671.  The  loss  of  profits  proximately  re- 
Digest  1-52  Ii.R.A.(IY.S.) 


suiting  from  the  destruction  of  an  estab- 
lislied  business  constitute  an  element  of 
damages  recoverable  for  such  destruction. 
Wellington  v.  Spencer,  46:469,  132  Pac. 
675.    37    Okla.    461.  (Annotated) 

672.  The  net  profits  of  which  the  owTier  of 
a  bridge  has  been  deprived  by  wrongful  in- 
jury to  it  by  another  may  form  part  of  the 
damages  to  be  allowed  against  the  latter. 
West  V.  Martin.  21:  324,  97  Pac.  1102,  51 
Wash.  85. 

673.  A  railroad  company  which  negligent- 
ly set  fire  to  and  destroyed  standing  tim- 
ber which  another  had  contracted  to  cut, 
without  knowledge  of  the  contract,  is  not 
liable  for  his  loss  of  profits  thereby  caused. 
Thompson  v.  Seaboard  Air  Line  R.  Co.  52: 
97,  81  S.  K.  315,  165  N.  C.  377.     (Annotated) 

674.  A  gas  company  whose  employees 
wrongfully  sever  the  cuiinectiuns  by  wliich  a 
rival  company  is  supplying  gas  to  heat  a 
house  in  which  rooms  are  let  to  boarders  is 
answerable  in  damages  not  only  for  tiie  cost 
of  replacing  the  connectioiw,  but  also  for 
reasonable  compensation  for  the  loss  sus- 
tained by  the  proprietor  of  the  house  in  be 
ing  deprived  of  tenants,  who  leave  because 
their  rooms  become  untenantal)le,  which  will 
be  measured  by  the  profits  which  he  had  a 
right  to  expect  would  be  received  from  the 
rentals,  and  for  personal  inconvenience  and 
discomfort  suffered  bv-  himself.  Kentucky 
Heating  Co.  v.  Hood,  22:  588,  118  S.  W.  337. 
133  Ky.  383.  (Annotated) 
Dn»»  to  personal  injuries. 

675.  Speculative  profits  and  commissions 
alleged  to  have  been  lost  by  reason  of  a 
personal  injury  cannot  form  a  part  of  the 
damages  to  be  awarded  against  the  party 
responsible  for  the  injury.  Kirk  v.  Seattle 
Flectric  Co.  31:  991,  108  Pac.  604,  58  Wash. 
283. 

D"-^rnn+ion  of  personal  property. 

676.  W^here  a  tenant  sues  a  landlord  for 
the  loss  of  merchandise  caused  by  a  fire 
which  the  tenant  alleges  resulted  from  the 
carelessness  and  negligence  of  the  landlord, 
but  it  is  not  alleged  or  shown  that  the 
negligence  was  criminal,  or  that  the  loss  was 
caused  through  any  fraud  on  the  part  of 
the  landlord,  and  it  was  not  shown  or  con- 
tended that  the  tenant  had  an  old  and  well- 
established  business  and  business  reputation 
at  the  particular  place,  the  measure  of  dam- 
ages is  the  value  of  the  goods  at  the  time 
of  the  loss,  and  injury  to  the  business  or 
loss  of  profits  cannot  be  taken  into  consid- 
eration in  assessing  damages.  Russell  v. 
Little,  42:  36?,  126  Pac.  529.  22  Idaho,  429. 

677.  The  profits  which  might  have  result- 
ed from  the  working  of  logs  into  shingles 
cannot  be  recovered  as  part  of  the  damages 
for  wrongful  destruction  of  the  logs.  Quay 
v.  Duluth,  S.  S.  &  A.  R.  Co.  18:  250,  116  N. 
W.  1101,  153  Mich.  567.  (Annotated) 

678.  A  huckster  whose  wagon  is  destroyed 
through  another's  negligence  is  not  entitled 
to  recover  as  part  of  his  damages  the  loss 
of  profits  due  to  such  destruction.  Weick 
V.  Dougherty,  3:  348,  90  S.  W.  966,  139  K7. 
528. 


DAMAGES,  III.  p,  2. 


881 


By  exercise  of  po^i^er  of  eminent  do- 
main. 

679.  The  owner  of  land  is  not  entitled  to 
compensation  for  injury  to  the  business  con- 
ducted on  property  all  of  which  is  taken 
for  public  use,  caused  by  loss  of  profits 
during  its  removal,  under  a  constitutional 
provision  requiring  the  making  of  just  com- 
pensation for  property  taken  for  public  use. 
Mtzhugh  V.  Chesapeake  &  0.  R.  Co.  17:  124, 
59  S.  E.  415,  107  \  a.  158.  (Annotated) 

680.  Prospective  profits  which  may  in 
the  future  be  derived  from  the  use  of  the 
water  power  for  the  development  of  elec- 
tricity are  too  remote  and  speculative  to  be 
taken  as  elements  of  damage  in  condemna- 
tion proceedings  for  the  removal  of  a  mill- 
dam,  where  there  is  no  proof  of  a  present 
and  immediate  intention  and  purpose  to 
make  such  development.  Maynard  v. 
Drainage  Dist.  No.  2,  52:  1004,  143  N.  W. 
927,  94  Neb.  610. 

2.  From  breach  of  contract. 

(See  also  same  heading  in  Digest  L.R.A. 
1-IO.f 

Sufficiency  of  evidence  as  to,  see  Evidence, 
2323. 

Right  of  consignee  to  hold  carrier  liable  for 
profits  lost  through  delay  in  transporta- 
tion, see  Parties,  30. 

Notice  to  telegraph  company  of  probable  loss 
of  profit  in  case  of  default  as  to  mes- 
sage, see  Teleukaphs,  70. 

See  also  supra,  120. 

681.  Anticipated  profits  are  recoverable 
by  way  of  damages  for  breach  of  contract 
only  when  they  are  such  as  would  have  ac- 
crued and  grown  out  of  the  contract  itself 
as  the  direct  and  immediate  result  of  its 
fulfilment;  but  if  they  are  such  as  would 
have  been  realized  from  other  independent 
and  collateral  undertakings,  although  en- 
tered into  in  consequence  and  on  the  faith 
of  the  principal  contract,  they  are  too  un- 
certain and  remote  to  be  taken  into  con- 
sideration as  part  of  the  damages,  unless 
the  defaulting  contractor  has  expressly 
agreed  to  be  bound  for  such  consequences, 
or  the  special  circumstances  are  sucli  that 
he  may  be  held  to  have  impliedly  contract- 
ed to  be  so  bound.  Corbin  v.  Thompson.  2 
B.  R.  C.  70,  39  Can.  S.  C.  575.   (Annotated) 

682.  A  real-estate  broker  whose  author- 
ity is  wrongly  revoked  before  the  expira- 
tion of  the  time  during  which  he  is  to  have 
the  right  to  make  the  sale  may  hold  the 
property  owner  liable  for  the  profits  which 
he  anticipates  he  will  make  on  the  sale,  in 
the  absence  of  any  agreement  as  to  the 
measure  of  damages  in  case  of  breach.  S. 
Bluthenthal  &  Co.  v.  Bridges,  24:  279,  120 
S.  W.  974,  91  Ark.  212. 

683.  The  damages  to  be  awarded  for  rev- 
ocation of  an  agency  to  sell  lots  for  a 
share  of  the  profits,  after  the  agent  has 
entered  upon  the  performance  of  his  duties, 
may   include   the   profits  which    he  may   be 


the  contract,  where  the  same  are  shown  to 
have  been  in  the  contemplation  of  both 
parties  at  the  time  of  the  making  of  the 
contract,  as  the  natural  and  proximate  con- 
sequence of  its  breach  by  the  defendant; 
and  in  determining  the  same  and  the 
amount  recoverable,  all  facts  relating  to 
the  subject-matter  of  the  contract  and  con- 
cerning tlie  execution  thereof,  known  to 
both  parties,  and  all  facts  which  would 
reasonably  tend  to  make  certain  the  amount 
of  injury  inflicted,  may  be  considered.  Cloe 
V,  Rogers,  38:  366,  121  Pac.  201,  31  Okla. 
255. 

684.  The  damages  for  breach  of  a  con- 
tract to  appoint  certain  persons  exclusive 
agents  for  a  specified  time  to  sell  a  desig- 
nated per  cent  of  the  entire  pack  of  fish  of 
the  other  party  at  an  agreed  commi^ssion 
includes  such  loss  of  profits,  past  and  future, 
as  are  shown  to  have  approximately  resulted 
from  the  breach  of  the  contract,  excluding 
all  uncertain  and  conjectural  profits.  Em- 
erson V.  Pacific  Coast  &  N.  Packing  Co. 
i:  445,  104  N.  W.  573,  96  Minn.  1. 

685.  Prospective  profits  during  the  re- 
mainder of  the  period  for  which  a  news- 
paper was  incorporated  may  be  recovered  as 
damages  for  the  improper  breach,  by  the 
corporation,  of  its  contract  granting  the  ex- 
clusive right  to  sell  its  publication  within 
certain  specified  territory,  where  no  con- 
tract period  was  fixed  by  the  contract  it- 
self. Newhall  v.  Journal  Printing  Co.  20: 
899,  117  N.  W.  228,  105  Minn.  44. 

686.  Loss  of  profits  is  not  a  proper  ele- 
ment of  damages  for  breach  of  contract  to 
establish  a  business  in  a  distant  and  sparse- 
ly settled  country.  Webster  v.  Beau,  51: 
81,  137  Pac.  1013^  77  Wash.  444. 

687.  Profits  on  sales  which  might  have 
been  made  upon  compliance  with  a  contract 
to  exhibit  a  machine  at  an  exposition  can- 
not be  considered  by  the  jury  in  estimating 
damages  for  breach  of  the  contract,  al- 
though the  breach  was  wilful  and  so  late 
that  no  other  provision  for  the  exhibition 
of  the  machine  could  be  made,  where  no 
contingent  sales  had  been  effected,  and  there 
is  nothing  to  show  that  any  would  have 
been  made.  Winston  Cigarette  Mach.  Co. 
v.  Wells- Whitehead  Tobacco  Co.  8:  255,  53 
S.  E.  885,  141  N.  C.  284.  (Annotated) 

688.  The  mere  fact  that  the  character  of 
the  soil  through  which  a  tunnel  is  being 
driven  may  change,  or  that  the  object  may 
be  accomplished  so  that  under  the  contract 
the  work  would  stop  before  the  stipulated 
point  is  reached,  will  not  prevent  the  court 
from  allowing  as  damages  for  the  wrongful 
termination  by  the  owner  of  the  contract  be- 
fore it  is  completed  the  profits  which  would 
be  made  on  the  entire  work  called  for  by  the 
contract  at  the  rate  realized  on  the  com- 
pleted portion.  McConnell  v.  Corona  City 
Water  Co.  8:  1171,  85  Pac.  929,  149  Cal.  60. 

689.  Upon  lease  of  an  hotel  with  privi- 
lege of  renewal,  with  the  understanding 
that  the  lessee  will  make  no  profits  during 
the  first  term,  but  will  during  the  renewal 
period,  the  loss  of  such  profits  is  a  proper 


able   to   show   he   would   have   made    under    element  of  damages  foi'  breach  of  the  cove- 
Digest  1-52  HR.A.CN.S.)  56 


882 


DAMAGES,  III.  p,  2. 


nant  to  renew.     Neal  v.  Jefferson,  41:  387, 

99  N.  E.  334,  212  Mass.  517. 

Due  to  failure  to   deliver  telegram. 

690.  Failure  to  deliver  a  telegram  making 
an  offer  for  land  does  not  render  the  com- 
pany liable  for  loss  of  profits  which  the 
bidder  might  have  made  by  resale  of  the 
property  had  his  bid  been  accepted,  if  he  had 
no  customer  in  sight,  since  they  are  too  re- 
mote and  uncertain  to  form  a  basis  for  a 
claim  for  damages.  Western  U.  Teleg.  Co. 
V.  Lewis,  49:  927,  203  Fed.  832,  122  C.  C.  A. 
150.  ( Annotated ) 
Contract  to  lend  money. 

691.  The  damages  to  be  awarded  for 
breach  of  a  contract  to  lend  money  to  re- 
place a  milldam  cannot  include  the  profits 
which  were  anticipated  from  tlie  operation 
of  the  mill  in  its  improved  state.  Bixby- 
Theison  Lumber  Co.  v.  Evans,  29:  194,  52 
So.  843,  167  Ala.  431. 

By  carrier. 

692.  In  an  action  for  damages  against 
a  carrier  who  had  contracted  to  deliver  a 
merry-go-round  at  a  point  on  a  connecting 
road  by  a  certain  day,  with  full  knowledge 
of  the  purpose  to  which  it  was  to  be  put, 
and  of  the  importance  of  having  it  there 
on  the  day  specified,  and  of  the  loss  of 
profits  which  will  result  from  the  failure 
to  deliver  the  same  by  such  day,  for  failure, 
through  lack  of  diligence,  to  deliver  ine 
merry-go-round  until  after  the  agreed  day, 
the  contemplated  profits,  being  such  as  can 
be  estimated  with  a  reasonable  degree  of 
accuracy,  are  a  proper  element  of  damages. 
Fort  Smith  &  W.  R.  Co.  v.  Williams,  40: 
494,   121   Pac.  275,  30  Okla.  726. 

693.  The  damages  to  be  allowed  for  the 
enforced  idleness  of  a  mill  because  of  a  car- 
rier's neglect  to  transport  machinery  to  it 
will  not  include  lost  profits.  Harper  Fur- 
niture Co.  V.  Southern  Express  Co.  30:  483, 
62  S.  E.  145,  148  N.  C.  87.  (Annotated) 

694.  Loss  of  profits  which  would  have 
accrued  to  plaintifts  upon  the  fulfilment  of 
a  collateral  contract  are  not  recoverable  in 
an  action  against  a  carrier  to  recover  dam- 
ages for  delay  in  delivering  machinery, 
where  the  contract  from  the  fulfilment  of 
which  profits  would  have  accrued  was  not  in 
the  contemplation  of  the  parties  at  the 
time  the  carrier  received  the  machinery  for 
transportation.  Goodin  v.  Southern  R.  Co. 
6:  1054,  •''4  S.  E.  720,  125  Ga.  630. 

695.  Breach  by  a  railroad  company  of  its 
contract  to  furnish  cars  to  a  coal  miner 
will  not  render  it  liable  for  profits  which 
the  miner  lost  because  of  inability  to  de- 
liver coal  under  a  contract  which  he  se- 
cured after  the  contract  with  the  railroad 
company  was  executed,  although  the  rail- 
road company  knew  of  it  at  the  time  of 
its  breach,  since  such  profits  were  not  in 
contemplation  of  the  parties  when  the  con- 
tract was  made.  Clyde  Coal  Co.  v.  Pitts- 
burgh &  L.  E.  R.  Co.  26:  1191,  75  Atl. 
596,  226  Pa.  391.  (Annotated) 
By  seller. 

696.  Profits  anticipated  as  the  result  of 
the  operation  of  a  mill  are  not  recoverable 
as  damages  for  breach  of  a  warranty  of  the 
fitness  for  service  of  a  boiler  and  engine. 
Digest   1-52  L.R.A.(N.S.) 


Corbin  v.  Thompson,  2  B.  R.  C.  70,  39  Can. 
S.  C.  575. 

697.  Damages  for  failure  to  deliver,  ac- 
cording to  contract,  a  portion  of  the  wheels 
ordered  by  a  carriage  manufacturer,  cannot 
be  based  on  the  theory  that  tlio  purchaser 
had  thereby  been  prevented  from  utilizing 
a  portion  of  the  capacity  of  the  factory, 
with  consequent  loss  of  profits,  since  it  can- 
not be  known  that  the  plant  would  have 
been  utilized  to  its  full  capacity  had  the 
wheels  been  furnished.  Connersville  Wagon 
Co.  V.  McFarlan  Carriage  Co.  3:  709,  76  X. 
E.  294,  166  Ind.  123.  (Annotated) 

698.  Loss  of  profits  on  the  sales  of  the 
completed  product  are  not  recoverable  for 
breach  of.  a  contract  to  deliver  wheels  for 
the  manufacture  of  wagons.  Connersville 
Wagon  Co.  v.  McFarlan  Carriage  Co.  3: 
709,  76  N.  E.  294,  166  Ind.  123. 

699.  Failure  of  a  manufacturer  to  fill  the 
orders  of  a  wholesaler  according  to  con- 
tract does  not  render  him  liable  for  loss  of 
profits  which  the  wholesaler  might  have 
made  by  resale  of  the  property.  Holloway 
V.  White-Dunham  Shoe  Co.  10:  704,  151  Fed. 
216,  80  C.  C.  A.  568. 

700.  The  damages  to  be  allowed  for  breach 
of  contract  to  furnish  machinery  for  the 
establishment  of  a  cotton  gin,  whereby  the 
operation  of  the  gin  for  a  season  is  pre- 
vented, cannot  be  based  upon  the  antici- 
pated profits  for  that  season,  nor  the  ad- 
vantage which  the  owner  hoped  to  obtain 
because  of  the  aid  afi'orded  by  the  gin  in 
collecting  his  accounts.  Standard  Supply 
Co.  v.  Carter,  19:  155,  62  S.  E.  150,  81  S.  C. 
181. 

701.  One  who  repudiates  his  purchase  of 
goods  to  be  resold,  because  of  the  seller's 
fraud,  cannot  hold  him  liable  for  the  profits 
which  he  might  have  made  upon  the  trans 
action.  American  Pure  Food  Co.  v.  Elliott, 
31:  910,  66  S.  E.  451,  151  N.  C.  393. 

(Annotated) 

702.  If  a  purchaser  of  hay  makes  a  con- 
tract for  the  resale  of  such  hay,  and  dis- 
closes that  fact  to  his  vendor,  who  under- 
takes to  furnish  the  hay  and  deliver  it  at  a 
specified  time  and  place,  but  fails  to  do  so, 
the  vendor  will  be  liable  for  damages  on  the 
basis  of  the  reasonable  profits  the  buyer 
would  have  realized  from  a  resale  of  the 
hay.  Trego  v.  Arave,  35:  1021,  116  Pac. 
119,   20   Idaho,  38. 

703.  Where  hay  is  purchased,  to  be  sjld 
on  open  market,  and  the  purchaser  had  con- 
tracted to  sell  the  same  for  a  certain  price 
on  said  market,  the  vendor,  who  fails  to 
comply  with  his  contract,  is  liable  for  the 
reasonable  profits  that  would  have  been 
made  by  the  purchaser  had  he  delivered  the 
hay  in  accordance  with  his  contract.  Trego 
V.  Arave,  35:  1021,  116  Pac.  119,  20  Idaho, 
38. 

704.  Where,  upon  the  purchase  of  a  team 
of  horses,  the  purchaser  states  that  the 
horses  are  desired  for  the  purpose  of  culti- 
vating a  cotton  crop,  and  the  vender  guar- 
antees the  horses  sound  and  in  good  health 
and  capable  of  rendering  the  serviros  for 
which   they  are  desired,  and   it   afterwards 


DAMAGES,   III.  q-s. 


883 


<ievelop3  that  the  horses  are  unsound  and 
by  reason  thereof  the  purchaser  is  unable 
to  cultivate  a  part  of  the  land  desired,  the 
anticipated  profits  on  the  cotton  crop  thus 
lost  are  not  a  proper  element  of  damages  for 
breach  of  the  warranty.  Wiggins  v.  Jack- 
son, 43:  153,   121   Pac.   662,  31   Okla.  292. 

( Annotated ) 
By  purchaser. 

70.1.  The  recoverable  damages  for  breach 
of  an  executory  contract  to  purchase  stock 
goods  to  be  manufactured  are  the  lost 
profits  on  th«  contract,  which  are  the  difTer- 
ence  between  the  agreed  price  and  the  fair 
market  value  of  the  goods  at  the  time  of 
the  breach  and  the  place  for  delivery,  or,  in 
case  there  is  no  market  value  at  such  place, 
some  other  place  just  to  the  vendee.  Lin- 
coln V.  Charles  Alshuler  Mfg.  Co.  28:  780, 
125  N.  W.  908,  142  Wis.  475. 

700.  The  profit  which  the  contract  would 
have  produced  is  the  measure  of  damages 
for  breach  of  a  contract  to  take  goods  to  be 
manufactured  upon  order.  Gardner  v.  Deeds, 
4:  740,  92  S.  W.  518,  116  Tenn.  128. 

(Annotated) 

q.  Titne   for   xvhich    recoverahle ;    pros- 
pective. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Splitting  cause  of  action  for  continuous  in- 
jury, see  Action  or  Suit,  II.  c. 
See  also  supra,  102,  126,  358. 

707.  The  immediate  bringing  of  an  ac- 
tion by  a  servant  wrongfully  discharged 
during  the  term  for  which  he  was  engaged 
will  not  prevent  a  recovery  for  the  whole 
unexpired  term  if  the  trial  does  not  take 
place  until  the  term  has  expired.  Howay 
V.  Going-Northrup  Co.  6:  49,  64  Pac.  135,  24 
Wash.  88.  (Annotated) 

708.  The  damages  for  breach  of  covenant 
against  encumbrances  in  a  deed  conve3'ing 
real  estate  are  to  be  assessed,  not  as  of  the 
date  of  the  trial,  but  of  the  delivery  of  the 
deed,  to  which  interest  may  be  added  to 
the  date  of  the  verdict.  Bailey  v.  Agawam 
Nat.  Bank,  3:  98,  76  N.  E.  449,  190  Mass. 
20. 

r.  Counsel  fees. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Liability  on  injunction  bond  for,  see  In- 
junction, 432-434. 

In  action  on  replevin  bond,  see  Replevin, 
30. 

See  also  supra,  135,  139,  191,  271,  593. 

709.  Counsel  fees  expended  in  a  fruit- 
less attempt  to  eject  the  tenant  are  not 
recoverable  in  an  action  for  breach  of  cove- 
nant in  a  sale  of  real  estate  because  of  an 
unexpired  lease  of  the  property.  Browne 
V.  Taylor,  4:  309,  88  S.  W.  !)33,  115  Tenn. 
1. 

Digest   1-52  I^R.A.(N.S.) 


8.  Mitigation;   reduction. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of  physician's  lack  of  skill,  see  supra, 
359. 

Effect  of  prior  disease  or  infirmity,  see  su- 
pra, 372-377. 

Refusal  to  seek  medical  or  surgical  relief, 
see  supra,  369-371. 

Evidence  in  mitigation  generally,  see  Evi- 
dence, XI.  w. 

Right  to  give  matters  in  mitigation  in  evi- 
dence under  plea  of  general  issue,  see 
Evidence,  2461. 

Sufficiency  of  retraction  of  libel  to  miti- 
gate damages  as  question  for  jury,  see 
Trial,  340. 

710.  Under  the  statute  of  Georgia,  the 
doctrine  of  diminution  of  damages  may  be 
invoked  in  an  action  by  a  servant  against 
his  master  for  injury,  if  the  servant  is 
guilty  of  some  negligence,  but  not  guilty 
of  such  negligence  as  will  prevent  a  recov- 
erv.  Elk  Cotton  Mills  v.  Grant,  48:  656, 
79'  S.  E.  836,  140  Ga.  727. 

711.  One  who  secures  from  a  person  in- 
jured by  his  negligence  a  release  of  damages, 
afterwards  disregarded  for  fraud,  upon  con- 
sideration of  the  payment  of  a  certain 
amount  and  his  treatment  by  a  medical  man 
until  cured  of  his  trouble,  is  not  entitled  to 
credit  in  an  action  to  hold  him  liable  for 
the  injuries,  for  the  amount  paid  for  treat- 
ment under  the  contract,  where  the  cure  is 
not  effected.  Pattison  v.  Seattle,  R.  &  S. 
R.  Co.  35:  660,  116  Pac.  1089,  64  Wash. 
370.  ( Annotated ) 

712.  That  plaintiff,  in  an  action  for 
alienation  of  her  husband's  affections,  had 
been  living  separate  from  liim,  and  that  he 
had  paid  such  attention  to  other  women  as 
to  indicate  little  affection  for  her,  may  be 
considered  in  mitigation  of  damages  in  an 
action  for  alienation  of  his  affections.  Phil- 
lips V.  Thomas,  42:  582,  127  Pac.  97,  70 
Wash.  533. 

713.  A  grantor  is  not,  in  a  suit  for  breach 
of  covenant  against  ervcumbrances,  because 
of  the  enforcement  against  the  property  of 
a  lien  for  a  share  of  the  cost  of  a  party 
wall  between  the  property  conveyed  and 
that  adjoining  it,  entitled  to  set  off  the 
value  to  the  property  of  the  easement  rights 
acquired  by  the  grantee  in  the  adjoining 
property  because  of  the  party-wall  agree- 
ment. Hoffman  v.  Dickson,  39:  67,  118  Pac. 
737.  65  Wash.  556. 

714.  That  the  intent  in  illegally  shadow- 
ing a  person  was  good,  or  that  his  reputa- 
tion was  so  bad  that  the  shadowing  could 
not  have  damaged  him,  may  be  considered 
in  mitigation  of  damages.  Schultz  v. 
Frankfort  Marine  Acci.  &  Plate  Glass  Ins. 
Co.  43:  520,  139  N.  W.  386.  151  Wis.  537. 

715.  That  land  in  the  vicinity  of  a  mine 
has  increased  in  value  because  of  its  oper- 
ation cannot  be  relied  upon  to  mitigate  the 
damages  to  be  awarded  a  landowner  from 
pollution,   by   the   mining   operations,   of   a 


884 


DAMAGES,  III.  t. 


stream      flowing      through      his      property. 
Arniinius  Chemical  Co.  v.  Landrum,  38:  272, 
73   S.  E.  459,   113   Va.   7. 
In  case  of  conversion. 

716.  The  return  of  property  and  its  ac- 
ceptance by  a  debtor  after  conversion  by 
his  creditor,  prior  to  the  beginning  of  an  ac- 
tion for  the  wrongful  taking,  must  be  con- 
sidered in  mitigation  of  any  damages  recov- 
erable. Aylesbury  Mercantile  Co.  v.  Fitch, 
23:  573,  99  Pac.  1089,  22  Okla.  475. 

717.  The  return  by  a  sheriff  uninjured, 
and  with  notice  to  the  mortgagee,  of  mort- 
gaged property  seized  for  the  debt  of  the 
mortgagor  without  satisfying  the  mortgage 
debt,  as  required  by  statute,  may  be  con- 
sidered in  mitigation  of  the  damages  which 
the  mortgagee  may  recover  for  the  con- 
version, although  he  does  not  consent  to  the 
return.  Whittler  v.  Sharp,  49:  931,  135 
Pac.  112,  43  Utah,  419.  (Annotated) 
Breach  of  promise. 

718.  An  offer  to  renew  and  perform  a 
contract  for  marriage  after  a  breach  there- 
of, made  after  action  is  begun  on  the  breach, 
cannot  be  heard  in  mitigation  of  damages 
or  as  bearing  on  the  amount  of  the  same. 
Kendall  v.  Dunn,  43:  556,  76  S.  E.  454,  71 
W.  Va.  262. 

719.  An  offer  to  renew  and  perform  a  con- 
tract of  marriage  after  a  breach  thereof,  if 
made  before  suit  brought,  may  be  given 
such  weight  by  the  jury  as  bearing  on  the 
amount  of  damages  as  they  may  deem  the 
facts  or  circumstances  in  connection  there- 
with to  warrant.  Kendall  v.  Dunn,  43: 
556,  76  S.  E.  454,  71  W.  Va.  262. 

JLibel  or  slander. 

720.  Intoxication  of  the  defendant  at  the 
time  of  his  use  of  slanderous  words  is  a 
mitigating  circumstance,  proper  for  the  con- 
sideration of  the  jury  in  estimating  the 
damages.  Alderson  v.  Kahle,  51:  1198,  80 
S.  E.  1109,  73  W.  Va.  690.  (Annotated) 

721.  In  mitigation  of  damages  for  slander 
in  accusing  one  of  stealing  cattle,  the  rule 
permitting  evidence  of  reputation  is  not 
satisfied  by  showing  merely  that  the  general 
reputation  of  the  person  slandered  for 
"honesty,  fair  dealing,  and  integrity"  was 
bad.  Wood  v.  Custer,  38;  1176,  121  Pac. 
355,  86  Kan.  387.  (Annotated) 

722.  The  absence  of  actual  malice  in  the 
publication  of  a  libelous  article  on  a  mat- 
ter of  public  concern  will  be  considered  in 
mitigation  of  damages.  Levert  v.  Daily 
States  Pub.  Co.  33:  726,  49  So.  206,  123  La. 
594. 

723.  That  mitigating  circumstances  are 
pleaded  in  defense  of  a  libel  suit  does  not 
prevent  their  use  in  mitigation  of  damages, 
under  a  statute  providing  that  defendant 
may  allege  any  mitigating  circumstances 
to  reduce  the  amount  of  damages.  Rocky 
Mountain  Xews  Printing  Co.  v.  Fridborn, 
24:  891,  104  Pac.  956,  46"  Colo.  440. 
Provoction. 

Mitigation  of  damages  for  assault  on  pas- 
senger, see  Carriers,  140. 

724.  Provocation  by  the  plaintiff,  induc- 
ing the  utterance  of  slanderous  words, 
is  a  mitigating  circumstance.  Alderson  v. 
Digest  1-52  I<.R.A.(N.S.) 


Kahle,  51:  "98,  80  S.  E.   1109,  73  W.  Va. 
690. 

t.  Aggravation. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  preventing  unnecessary  amount,  see 
supra,  15-26. 

Effect  of  physician's  lack  of  skill,  see  su- 
pra, 359'. 

Effect  of  prior  disease  or  infirmity,  see  su- 
pra, 372-377. 

Refusal  to  seek  medical  or  surgical  relief, 
see  supra,  369-371. 

Change  of  rule  of  law,  as  to,  see  Courts. 
302. 

As  bar  to  recovery,  see  Negligence,  214. 

725.  The  aggravation  of  valvular  heart 
trouble  by  sitting  up  all  night  is  not  the 
proximate  result  of  a  carrier's  refusal  to 
comply  with  its  contract  to  furnish  a  pas- 
senger with  a  drawing-room  on  a  certain 
train,  so  that  such  injury  can  be  inlmled 
as  damages  for  breach  of  the  contract, 
where  it  offered  to  supply  one  on  a  train 
leaving  a  few  hours  later,  or  other  seeping 
accommodations  on  th  same  train,  wliich 
he  refused,  although  he  coulu  have  accepted 
the  offer  without  material  inconvenience, 
liigraham  v.  Pullman  Co.  2:  1087,  6  N.  K. 
237,  190  Mass.  33.  (Annotated) 

726.  A  consumer  whose  supply  of  water 
has  been  wrongluUy  cut  off  by  a  watt-r  com- 
pany cannot  rely  on  the  fact  that  a  ni-mbcT 
of  his  family  was  ill  at  the  time  as  an  ag- 
gravating circunistance,  unless  it  is  shown 
that  the  agents  of  the  company  kntw  oi 
such  illness;  nor  can  he  recover  anything 
on  the  ground  that  the  action  of  th  ■  com- 
pany imperiled  the  health  and  lives  of  kia 
entire  household.  Freeman  v.  Macon  (ias- 
light  &  W.  Co.  7:  917,  56  S.  E.  61,  liO  (ia. 
843. 

727.  Matter  in  aggravation  is  something 
done  by  the  defendant  upon  the  occasion  of 
the  principal  trespass,  which  is  of  a  dif- 
ferent legal  character  from,  but  not  incon- 
sistent with,  the  trespass.  Kurpgeweit  v. 
Kirby,  33:  98,  129  N.  W.  177.  88  Xeb.  72. 

728.  That  one  who  wrongfully  enters  upon 
property  occupied  by  another  as  a  residence 
attempts  to  seduce  his  wife  may  be  con- 
sidered in  aggravation  of  damages  for  tres- 
pass, notwithstanding  statutes  enlarging  the 
rights  of  married  women  and  permitting 
them  to  sue  alone  for  injuries  to  their  per- 
sons. Brame  v.  Clark,  19:  1033,  62  S.  E. 
418,  148  N.  C.  364.  (Annotated) 
Breach  of  promise. 

Proof  of  seduction  to  aggravate  damages,  see 
Evidence,  1813,  2015. 

729.  In  an  action  for  damages  for  the 
breacli  of  a  contract  of  marriage,  seduction 
may  be  proved  and  considered  in  aggrava- 
tion of  the  damages.  Dalrvmple  v.  Green, 
43:  972,  129  Pac.  1145,  88  Kan.  673. 

730.  Damages  may  be  allowed  for  seduc- 
tion, by  way  of  aggravation,  in  an  action  to 
recover  for  breach  of  promise  of  marriage. 


DAMAGES,  III.  u— DAMS. 


885 


where  the  promise  was  the  means  of  the  se- 
duction. Stokes  V.  Mason,  36:  388,  81  Atl. 
162,  85  Vt.  164.  (Annotated) 

u.  Apportionment. 

{See  same  heading  in  Digest  L.R.A.  1-70.) 

IV.  Assessment;  double  or  treble  dam- 
ages. 

(See  also   same   heading   in  Digest   L.R.A. 
1-10.) 

Oonstitutionality  of   statute  providing   for, 
see  Constitutional  Law,  576,  577. 

731.  The  court,  in  entering  judgment,  is 
authorized  to  double  the  damages  allowed 
by  the  verdict,  where  the  .statute  al- 
lows double  damages  and  the  findings 
make  it  absolutely  certain  that  the  jury  al- 
lowed only  single  damages.  Jensen  v.  South 
Dakota  C.  R.  Co.  35:  1015,  127  N.  W.  650, 
25  S.  D.  506. 

732.  A  statute  imposing  double  liability 
upon  a  railroad  company  for  baggage  lost 
by  its  carelessness  does  not  apply  to  sample 
■cases  transported  as  baggage.  New  Orleans 
&  N.  E.  R.  Co.  V.  Shackleford.  4:  1035,  40 
So.  427,  87  Miss.  610. 

733.  Wilful  holding  must  be  alleged  and 
proved  to  warrant  the  application  of  a  stat- 
ute authorizing  double  damages  for  the 
wilful  holding  over  by  a  tenant  after  notice 
upon  the  termination  of  a  life  estate  under 
which  he  obtained  possession,  rather  than 
of  the  statutory  rule  applicable  in  ordinary 
•cases  of  ejectment.  Barson  v.  Mulligan, 
16:  151,  84'  N.  E.  75,  191   N.  Y.  306. 

734.  In  fixing  the  double  damages  to  be 
recovered  from  one  wilfully  withholding 
property  from  tliose  entitled  to  possession 
after  the  termination  of  a  life  estate,  the 
jury  may  fix  the  single  damages,  and  the 
court  will  double  th^^m.  Barson  v.  Mulli- 
gan, 16:  151,  84  N.  E.  75,  191  N.  Y.  306. 

735.  Statutory  provisions  prescribing  the 
damages  to  be  recovered  in  ejectment  do  not 
prevent  the  application  of  a  section  of  an- 
other statute  which  provides  for  double 
damages  in  case  of  the  wilful,  t.  e.,  deliber- 
ate, intentional,  obstinate,  unreasonable,  or 
perverse,  withholding  after  notice,  of  prop- 
erty from  the  possession  of  one  entitled 
thereto  upon  termination  of  a  life  estate. 
Barson  v.  Mulligan,  16:  151,  84  N.  E.  75,  191 
S.  Y.  300. 


.s't-|^"•^■  DAMS. 

3^<)6outiting  in  suit  to  compel  abatement 
of,  see  Accounting,  2. 

Change  of  ehannel  of  boundary  stream  by 
construction    of,    sec    Boundaries,    4. 

Rights  of  one  constructing  dam  to  improve 
navigation  under  authority  of  legis- 
lature, see  CoNSTiTUi'iONAi.  Law,  771. 

Right  of  state  to  declare  dams  properly 
erected  to  be  nuisances,  see  Constitit- 
TioNAL   Law,    305;    Corporations.    47. 

Digest  1-52  I,.R.A.(N.S.) 


Jurisdiction  of  suit  to  enjoin  enforcement 
of  statute  requiring  destruction  of, 
see  Courts,  231. 

Covenant  to  build,  see  Covenant  and  Con- 
ditions, 134. 

Damages  for  breach  of  contract  to  lend 
money  to  construct,  see  Damages,  210, 
211,  691. 

Damages  for  removal  of,  see  Damages,  512, 
680. 

Right  to  use  power  from,  as  included  in 
grant  of  property,  see  Deeds,  53. 

Right  to  have  milldara  maintained,  see 
Easements,    53-55,    81. 

Exercise  of  eminent  domain  for  purpose  of, 
see  Eminent  Domain,  15,  01,  104,  lOS. 

Condemnation  of,  see  Eminent  Domain, 
22. 

Loss  of  right  to  flow  lands  by  abandon- 
ment or  nonuser,  see  Eminent  Do- 
main,  112;    Evidence,  2197. 

Compensation  to  riparian  owner  for  inju- 
ries by  construction  of,  see  Eminent 
Domain,  238,  242. 

Right  to  compensation  for  milldams  re- 
moved in  improving  navigation,  see 
Imminent  Domain,   241. " 

Equitable  relief  to  obtain  abatement  of, 
see  Equity,  20,  21. 

Suit  in  equity  to  compel  lowering  of,  see 
Equity,   41. 

Estoppel  to  complain  of  erection  of,  see 
Estoppel,  144. 

Construction  of  splash  dams  to  float  logs 
in  stream,  see  Eminent  Domain,  239, 
240;   Injunction,  217. 

Estoppel  to  enjoin  destruction  of  lake  by, 
see  Estoppel,  160. 

Evidence  in  proceeding  to  condemn  and  re- 
move,  see  Evidence,   751. 

Effect  of  impeding  of  flow  of  water  by,  see 
Evidence,  2195. 

Injunction  against,  see  Injunction,  21,  217, 
372,   373,   410. 

Lien  for  materials  furnished  for,  see  Me- 
chanics' Liens,  27. 

Right  of  upper  riparian  owners  whose  lands 
are  injured  by  dam  to  join  in  suit 
to  abate,  see  Parties,  153. 

Codification  of  laws  as  to  milldams,  see 
Statutes,    354. 

Abandonment  of  right  to  maintain  as  ques- 
tion for  jury,  see  Trial,  639. 

Across  floatable  stream,  see  ^^'ATERS,  49-54. 

Across  tidal  water,   see  Waiki^s,   82. 

Prescriptive  right  to  no\\  land  bv.  see 
Waters,   320. 

Estoppel  to  remove,  see  Waters,   328. 

Right  to  maintain. 

Right   of   riparian   owner  to   maintain,    see 

Waters,  49-54,   185-100. 

1.  One  who  has  AvrongfuUy  constructed 
a  dam  to  the  injury  of  a  highway  bridge 
will  not  be  permitted  to  alter  the  bridge 
so  that  it  will  not  be  injured  by  the  dam, 
and  thereby  acquire  the  right  to  maintain 
his  dam.  Bristol  v.  Palmer,  31:881,  74  Atl. 
332,  83  Vt.  54. 
Liability  as  to. 
Defense  to  action  for  negligent  maintenance 

of,  see  Action*  or  Stit,  33. 


S86 


DANCE  HALLS— DATE. 


As  nuisance,  see  Constitutional  Law,  3f)5; 
CoTJRTs,  47;   Nuisances,   13. 

Damages  for  flooding  of  land  by  govern- 
ment dam,   see  Damages,  259. 

Right  to  compensation  for  injury  from  con- 
struction of  splash  dams  to  float  logs, 
see  Eminent  Domain,  239,  240. 

Right  to  compensation  for  destruction  of 
power  caused  by,  see  Eminent  Do- 
main, 242. 

When  statute  of  limitations  begins  to  run 
against  right  to  recover  for  injury, 
see  Limitation  of  Actions,  107,  198, 
202. 

Criminal  liability  for  results  of  construct- 
ing dam  across  water  course,  see  Nui- 
sances, 205. 

Pleading  in  action  for  negligence  as  to, 
see  Pleading,  285. 

Obstruction  of  floatable  stream  by,  see 
Waters,    49-54. 

Obstruction  of  navigation  by,  see  Waters, 
108. 

Liability  for  damage  by  flood  from  giving 
way  of,  see  Watebs,  199,  200. 

Negligence  in  maintaining,  causing  over- 
flow, see  VVaters,  205. 


DANCE  HALI.S. 


Constitutionality  of  regulations  as  to,  see 
Constitutional  Law,  244,  245,  422, 
695,  696. 

Requiring  license  to  conduct,  see  Consti- 
tutional Law,  422;  License,  46,  61, 
114. 

Forbidding  presence  of  infants  in,  see  Con- 
stitutional Law,  696 ;  Criminal  Law, 
14:  Evidence,  2420;  Statutes,  249; 
Indictment,  etc.,  54. 

Damages  for  excluding  officer  of  United 
States  Navy  from,  see  Damages,  628. 

Validity  of  ordinance  regulating,  see  Mu- 
nicipal   Corporations,    219. 


DANCES. 

See  Amusements;  Dance  Halls. 


DANCING. 


As  nuisance,  see  Nuisances,  48. 

See  also  Dance  Halls;  Dancing  Schools. 


DANCING   SCHOOLS. 

Requiring  license  for,  see  CoNSTrruxroNAL 

Law.    696. 
Digest   1-52  L.R.A.(N.S.) 


DANGER. 

Opinion  evidence  as  to,  see  Evidence,  VII. 

J- 
Master's  duty  to  warn  or  instruct  employee 

as   to,   see   Master   and   Servant,  II. 

a,  3. 


■♦•» 


•mhrmmbK 


DANGEROUS  AGENCIES. 

Automobile  as,  see  Automobiles;   Parent 

and  Child,  22. 
As  to  electricity,  see  Electricity,  III. 
PiXplosives,  generally,  see  Explosions  anD' 

Explosives. 
As  to  fire,  see  Firsts. 
Fireworks,   see  Fireworks. 
Master's   liability   for   servant's  use  of,   see 

Master   and   Servant,    889-892,   914- 

929,  983-989. 
Negligence    as    to,    generally,    see    Negli- 
gence,  I.  b. 
Negligence  as  to,  as  question  for  jury,  see 

Trial,  324. 
Question   for   jury  as  to   what  constitutes^ 

see  Trial,  232. 


DANGEROUS  ATTRACTIONS. 

See  Neguoence,  I.  c,  2,  b. 


DANGEROUS  MACHINERY. 

Master's  duty  to  guard,   see  Master  and 
Servant,  II.  a,  4,  b. 


DANGEROUS    PREMISES. 

Liability   for   injuries   on,   see   Xegligenci^ 
I.  c. 


DATE. 

Alteration  of  date  in  note,  see  Alteratioh 
OF  Instruments,  10,  11,  16-18;  Evi- 
dence, 604. 

Evidence  on  question  of,  see  Appeal  Ain> 
Error,  1166. 

Judicial  notice  of  date  of  general  elections, 
see  Evide:nce,  14. 

Parol  evidence  as  to,  see  Evidence,  91«, 
930-938. 

Sufficiency  of  evidence  to  contradict  jour- 
nal's showing  of  date  of  legislature's  ad« 
journment,   see  Evidence,   2256. 

Allegation  of,  in  indictment,  see  Indict- 
ment, ETC.,  20-25. 

Judicial  sale  on  date  other  than  that  iq»- 
pointed  therefor,  see  Judicial  Sai^ 
4. 


DATION  EN  PAIEMENT— DEATH. 


887 


DATION   EN  PAIEMENT. 

See  Husband  and  Wife,  149,  ]50. 


DAUGHTERS     OF    AMERICAN 
REVOLUTION. 

Exemption   of   property   of,   from   taxation, 
see  Taxks,  97. 


DAY. 

Meaning  of  term,  see  Time,  4. 


DAYS  OF  GRACE. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  22-26. 

For  payment  of  insurance  premium,  effect 
of  death  of  insured  during,  see  In- 
surance, 380. 

Including,  in  computing  amount  of  interest, 
see   Usury,    31. 


DEAD  ANIMALS. 


Ordinance  providing  for  disposal  of  car- 
casses of,  see  Constitutional  Law, 
195,  525. 

Failure  to  remove  from  railroad  track, 
see  Damages,  40. 

Pollution  of  water  by  burying  near  spring, 
see  Trial,  642;    Waters,  209. 


DEAD  BODY. 


See  Corpse. 

♦-•-♦ 

DEAD  FREIGHT. 

See  Carriers,  741,  874,  875,  885. 


DEADLY    WEAPON. 

Presumption    from    use    of,    see    Evidence, 

257;   Trial,  272. 
Base  ball  bat  as,  see  Homicide,  30. 
Commission    of   homicide   while    using,    see 

Homicide,   30,   59. 
Question  for  jury  as  to  whether  weapon  is 

deadly,    see   Trial,    262. 
Digest  1-52  L.R.A.(N.S.) 


DEAF   AND   DUMB. 

Rights    of    deaf    person    accused    of    crime, 

see  Criminal  Law,  97,  98. 
Negligence    of    deaf    person    in    attempting 

to  cross  railroad  track,  see  Railroads, 

212,  236. 
Exemption    from    taxation    of    institution 

for,  see  Taxes,  96. 


DEATH. 

/.  In  general. 
II.  Right  of  action  for  causing,  1—36. 

a.  In  general,  1—5. 

b.  Who    may    maintain    and    for 

whom,   6—36. 
Who  liable  for  causing. 
Defenses,  37—51. 
Authority     to     compromise     claim 

for,  52— 53a. 
Effect  of,  54:. 


III. 

IV. 

V. 

VI. 


Right  of  court  to  consolidate  actions  for, 
see  Action  or  Suit,  87. 

Joinder  of  causes  of  action  for,  see  Action 
or  Suit,  116. 

Joinder  of  action  to  recover  for,  with 
action  to  recover  for  suffering  prior 
thereto,  see  Action  or  Suit,  115. 

Remittitur  of  damages  for,  on  appeal,  see 
Appeal  and  Error,   1592. 

Amendment  of  complaint  in  action  for, 
see  Appeal  and  Error,  591,  1645. 

Prejudicial  error  in  admission  of  evidence 
in  action  for,  see  Appeal  and  Error, 
1190. 

Instructions  in  action  for,  see  Appeal  and 
Error,  1415;  Trial,  882,  884,  899, 
1003,   1022. 

Argument  of  attorney  in  action  for,  see 
Appeal  and  Error,  1444. 

Right  of  attorney  to  pay  parent  money  re- 
covered in  action  by  administrator  of 
child  for  its  negligent  killing,  see  At- 
torneys,  39. 

Liability  on  bond  for  wrongful  shooting  in 
making  arrest,  see  Bonds,  58,  59,  63. 

Penalty  of,  see  Capital  Pl<nisiiment. 

As  to  civil  death,  see  Civil  Death. 

Conflict  of  laws  as  to  liability  for,  see  Con- 
flict of  Laws,  I.  e,  2. 

Conflict  of  laws  as  to  time  for  action  for, 
see  Conflict  of  Laws,  156,  157 

Failure  to  deliver  death  message,  see  Con- 
flict OF  Laws,  161-165;  Damages, 
649-653,  655,  656;  Evidence,  681.  682. 

Validity  of  statute  as  to  registration  of, 
see   Constitlttional  L.\w,   638. 

Punitive  damages  for  negligent  killing,  see 
Constitutional  Law,  561;  Damages, 
64,  66. 

Recovery  for  mental  anguish  because  of.  see 
Damages,  617-619. 

Measure  of  damages  for,  generally,  see 
Damages,  III.  i,  3. 

Instructions  as  to  damages,  see  Trial,  882, 
884,   1003. 


888 


DEATH,  I. 


Effect  of  dismissal  as  to  one  of  two  joint 
tort  feasors  in  action  for,  see  Con- 
tinuance AND  Adjournment,  4. 

Eight  of  one  held  liable  for  negligent  death 
to    contribution    from    one    jointly    re- 
sponsible,   see   Contribution   and    In-  ' 
DEMNITY,  5,  11,  17. 

Construction  of  contract  to  pay  indemnity 
for  death,  upon  release  of  all  persons 
interested,  see  Contracts,  363. 

By  electrical  shock,  see  Electricity. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  II.  e,  3. 

Presumption  and  burden  of  proof  as  to  per- 
sons found  dead,  see  Evidence,  482- 
487,   491-493. 

Presumption  and  burden  of  proof  as  to 
negligence  of  per.«on  killed  at  railroad 
crossing,    see    Evidence,    482-487. 

Burden  of  proof  in  action  by  parent  for 
death  of  minor  employee,  see  Evidence, 
.524. 

Presumption  as  to  death  without  issue,  see 
Evidence,  684. 

Presumption  and  burden  of  proof  as  to 
cause  of,  see  Evidence,  327,  329. 

Sufficiency  of  evidence  as  to  cause  of,  see 
Evidence,  2071-2080,  2377. 

Secondary  evidence  in  action  for,  see  Evi- 
dence, 702. 

Admissibility  of  coroner's  verdict,  see  Evi- 
dence, 759,  760. 

Admissibility  of  transcript  of  testimony  at 
former  trial  as  to  transaction  with  per- 
son since  deceased,  see  Evidence,  776, 
777. 

Riglit  of  physician  to  testify  to  result  of 
autopsv,  in  action  for,  see  Evidence, 
1292. 

Admissibility  of  declarations  of  deceased 
person,  see  Evidence,  1374-1391. 

Evidence  in  explanation  or  rebuttal  in  ac- 
tion for,  see  Evidence,  1918. 

Evidence  of  letters  of  inquiry  in  regard  to 
absentee,  see  Evidence,  1947. 

Evidence  as  to  damages  in  action  for,  see 
Evidence,  1725-1728. 

Weight  and  sufficiency  of  evidence  in  action 
for,  see  Evidence,  XII.  d. 

Sufficiency  of  evidence  as  to  death  of  in- 
sured, see  Evidence,  2213-2215. 

Sufficiency  of  evidence  to  sustain  verdict 
in  action  for  death,  see  Evidence,  2318. 

Right  of  action  for,  as  assets  justifying 
appointment  of  administrator,  see  p]x- 

ECUTORS     AND     ADMINISTRATORS,     2,     3. 

Assignment  by  administrator  to  widow  of 

right    of   action    for   the   death    of    in- 

--       testate,  see  Executors   and  Ad.viinis- 

TRATOR.S,    51. 

Rights  of  creditors  of  decedent  in  money 
recovered  by  administrator  for  wrong- 
ful death,  see  Executors  and  Adminis- 
trators, 86. 

Death  by  inhalation  of  gas,  see  Gas,  57. 

Transmission  of  homestead  in  case  of,  see 
Homestead,  IV.   b. 

Of  insured;  cause  of,  see  Insurance,  VI. 
b,  2.  3. 

Subrogation  of  insurer  to  right  of  action, 
see  Insirance,  881.  883. 

Digest  1-52  L.R.A.(N.S.) 


Effect  of  death  of  insured  during  days  of 
grace,  but  before  payment  of  premi- 
um, upon  right  to  insurance,  see  In- 
surancb:,  380. 

Estoppel  to  claim  that  death  occurred  at 
certain  time,  see  Insurance,  481. 

Death  of  party  as  requiring  revival  of 
judgment  in  favor  of  state,  see  Judg- 
ment, 321. 

Limitation  of  action  for,  see  Limitation  of 
Actions,  227,  253,  299. 

Drowning  of  person  caused  by  log  jam  in 
stream,  see  Logs  and  Logging,  5. 

Necessity  of  presenting  claim  for  death 
caused  by  defective  street  to  city,  see 
Municipal  Corporations,  469. 

Actionable  negligence  causing  death,  gen 
erally,    see    Negligence. 

Imputing  to  child  negligently  killed  negli- 
gence of  parents,  see  Negligence,  274. 

Rule  of  practice  as  to  new  trial  on  death 
of  judge,  see  New  Trial,  14. 

Pleading  in  action  for,  see  Pleading,  100, 
106,  214,  215,  287,  296,  305-308,  342, 
373,   374,   500. 

Demurrer  to  pleading  in  action  for,  see 
Pleading,  633. 

Proximate  cause  of,  see  Proximate  Cause; 
Trial,  189,  190. 

From  administration  of  anesthetic,  as  prox- 
imate result  of  accident,  see  Proxi- 
mate Cause,  17. 

Right  of  one  giving  notes  for  good  will  of 
business  and  owner's  services  to  coun- 
terclaim, in  action  on  note,  value  of 
services  not  rendered  because  of  death, 
see  Set-Off  and  Counterclaim,  3. 

Prospective  operation  of  statute  as  to  mea- 
sure of  recovery  for  negligent  death, 
see  Statutes,  304. 

Succession  tax  on,  see  Taxes,  340,  342-344. 

Sufficiency  of  evidence  to  carry  question  of 
damages  to  jury,  see  Trial,  106. 

Cause  of,  as  question  for  jury,  see  Trial, 
164-169. 

Question  for  jury  as  to  time  of,  see  Trial, 
629,  630. 

Question  for  jury  as  to  value  of  child's 
services  in  action  for  its  death,  see 
Trial,   658. 

Nonsuit  or  direction  of  verdict  in  action 
for,  see  Trial,  698-700,  703,  705,  706, 
764. 

Demurrer  to  evidence  in  action  for  death, 
see  Trial,  795. 

Effect  of  verdict  to  settle  fact  of  death, 
see  Trial,  1117. 

Right  of  person  to  dispose  by  will  of  dam- 
ages recoverable  for  his  wrongful  kill- 
ing, see  Wills,  80. 

Right  of  mother  of  child  negligently  killed 
to  testify  in  action  by  husband  to  re- 
cover for  its  death,  see  Witnesses,  29. 

Proof  of  death  of  absentee,  see  Witnesses, 
147. 

Admissibility  of  evidence  to  impeach  wit- 
ness in  action  for,  see  Witnesses,  145. 

/.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 


DEATH,  II.  a,  b. 


889 


//.  Right  of  action  for  causing. 


(See  also   same 
1-10.) 


a.  In  general, 

heading   in   Digest   L.R.A. 


Survival  of  right  of  action  for,  see  Abate- 
ment AND  Revival,  20,  21. 

Basis  of  action  by  one  legally  responsible 
for  another's  death  against  third  per- 
son whose  negligence  caused  the  death, 
see  Action  or  Suit,  3. 

For  death  of  passenger,  see  Carkiers,  II. 

Accidental  killing  of  passenger  by  conduct- 
or, see  Carriers,  239. 

Right  of  action  for  inducing  suicide,  see 
Case,  3. 

Exclusiveness  of  action  for,  under  Federal 
employers'  liability  act,  see  Commerce, 
62. 

For  death  occurring  in  other  state,  see  Con- 
flict OF  Laws,  I.  e,  2. 

Exclusiveness  of  statutory  remedy,  see 
Election  of  Remedies,*10. 

Under  civil  damage  act,  see  Intoxicating 
Liquors,  188-190. 

Running  of  limitations  against  right  of  ac- 
tion, see  Limitation  of  Actions,  227, 
253,  299. 

Liability  for  death  of  child  by  drowning, 
see  Negligence,  168,  170,  172-175. 

Necessity  of  interest  in  premises  afl'ected 
by  nuisance  to  sustain  action  for  death 
therefrom,  see  Nuisances,  70. 

Resulting  from  negligence  of  physician,  see 
Physicians  and  Surgeons,  53-55. 

Release  as  bar  to  right  of  action,  see  Re- 
lease. 

Right  of  action  under  state  statute  for 
death  from  wrongf4il  act  on  military 
reservation,   see   State,   33. 

Implied  repeal  of  statute  permitting  re- 
covery for  wrongful  death,  see  Stat- 
utes, 339. 

1.  A  new  and  distinct  cause  of  action  is 
given  by  a  statute  permitting  recovery  for 
death  resulting  from  personal  injuries,  the 
old  common-law  action  allowing  recovery 
only  for  conscious  suffering  up  to  the  time 
of  death.  Anderson  v.  Wetter,  15:  1003,  (59 
Atl.   105,  103  Me.  257. 

2.  Section  4313,  Okla.  Stat.  1893  (§5281, 
Rev.  Laws  1910),  does  not  operate  as  a  con- 
tinuance of  any  right  of  action  which  the  in- 
jured person  would  have  had  but  for  his 
death,  but  confers  upon  the  beneficiary 
thereof  a  property  right  in  the  pecuniary 
value  to  him  of  the  life  of  his  decedent,  and 
gives  him  a  new  or  independent  cause  of 
action  for  the  pecuniary  loss  he  has  sus- 
tained by  reason  of  such  death.  Shawnee  v. 
Cheek,  51:  672,  137  Pac.  724,  41  Okla.  227. 

3.  Under  an  amendment  of  a  statute 
permitting  recovery  for  death  caused  by 
negligence  by  omitting  the  reference  to  negli- 
gence, and  permitting  a  recovery  in  all 
actions  surviving  to  an  administrator  for 
injuries  resulting  in  death,  a  recovery  can 
he  bad  for  death  resulting  from  injuries 
intentionally  inflicted,  although  the  statute 
Digest   1-52  I..R.A.(N.S.) 


provides  that  the  action  must  be  brought 
within  one  year  "from  the  neglect  com- 
plained of."  Kling  V.  Torello,  46:  930,  87 
Atl.  987,   87   Conn.   301.  (Annotated) 

4.  The  independent  right  of  action  giv- 
en by  Ohio  Rev.  Stat.  §§  6134,  6135,  for  the 
benelit  of  the  persons  named  in  §  6135, 
where  death  has  resulted  from  personal  in- 
juries negligently  inflicted,  to  recover  for 
such  pecuniary  loss  as  they  have  sustained 
by  the  decease  of  the  injured  person,  is 
subject  to  the  condition  that  the  act,  neg- 
lect, or  default  causing  the  fatal  injury 
must  be  such  as  would  have  entitled  the 
person  injured  to  maintain  an  action  and 
recover  damages  therefor  had  he  lived  to 
do  so.  Mahoning  Valley  R.  Co.  v.  Van 
Alstine,  14:  893,  83  N.  E.  601,  77  Ohio  St. 
395. 

5.  The  enactment,  many  years  after  the 
adoption  of  a  statute  permitting  a  suit  for 
the  benefit  of  next  of  kin  in  case  of  death 
by  wrongful  act,  of  another  statute  per- 
mitting an  executor  or  administrator  to 
maintain  an  action  for  personal  injuries 
which  occur  in  the  lifetime  of  l.is  testator 
or  intestate,  permits  the  maintenance  of  an 
action  under  each  statute  in  case  death  oc- 
curs from  a  wrongful  act  frem  which  injury 
occurred  to  the  decedent  in  his  lifetime. 
Stewart  v.  United  Electric  Light  &  P.  Co. 
8:  384,  65  Atl.  49,  104  Md.  332. 

(Annotated) 

b.  Who  may  maintain  and  for  whom. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Under  civil  damage  act,  sec  Intoxicating 
Liquors,  188-190. 

Action  for,  by  administrator  as  bar  to  hus- 
band's right  of  action,  see  Judgment, 
259. 

6.  To  render  one  a  dependent  bene- 
ficiary under  the  Federal  employers'  liabil- 
ity act,  he  must  have  sustained  some  pe- 
cuniary loss  on  account  of  the  death  of  de- 
cedent." Illinois  C.  R.  Co.  v.  Doherty,  47: 
31,  155  S.  W     1119,  153  Ky.  363. 

7.  A  child  begotten  after  the  divorce 
of  its  parents  is  not  kin  to  children  of  its 
father  and  his  second  wife  within  the  mean- 
ing of  the  Federal  employers'  liability  act, 
and  therefore  such  children  cannot  recover 
under  that  statute  for  the  wrongful  death 
of  such  child,  although  he  contributed 
toward  their  support.  Cincinnati,  N.  0.  & 
T.  P.  R.  Co.  v.  Stephens,  51:  308,  163  S.  VV. 
493,  157  Ky.  460  (Annotated) 

8.  Under  a  statute  creating  a  right  of 
action  for  wrongful  death,  to  be  brought  by 
an  administrator,  for  the  exclusive  benefit 
of  the  widow,  children,  or  heirs  at  law  of 
decedent,  no  action  can  be  maintained  in 
case  he  dies  childless,  leaving  a  widow,  who 
dies  before  action  brought.  Hammond  v. 
Lewiston,  A.  &  W.  Street  R.  Co.  30:  78,  76 
Atl.  672,  106  Me.  209.  (Annotated) 

9.  The  widow  and  minor  children  by 
second  marriage  of  one  who  loses  his  life 
through    the   negligence   of   another    person 


890 


DEATH,  II.  b. 


can  exercise  the  right  of  action  conferreii 
by  La.  act  1884,  No.  71,  p.  94,  for  the  re- 
covery of  the  damages  sustained  by  them, 
without  joining  as  plaintiffs  the  decedent's 
minor  children  by  a  previous  marriago. 
Robideaux  v.  Hebert,  12:  632,  43  So.  887,  118 
La.  1089. 

10,  11.  A  master  cannot  maintain  an  ac- 
tion for  injuries  which  cause  the  immediate 
death  of  his  servant.  Clark  v.  London 
General  Omnibus  Co.  Ltd.  2  B.  R.  C,  694, 
[1906]  2  K.  B.  648.  Also  reported  in  75 
L.  J.  K.  B.  N.  S.  907,  95  L.  T.  N.  S.  435, 
22  Times  L.  R.  691. 
Nonresident  aliens. 

12.  Nonresident  alien  beneficiaries  are 
within  the  operation  of  a  statute  permit- 
ting the  personal  representative  of  one  Icilled 
by  wrongful  act,  neglect,  or  default,  which 
act  would,  had  death  not  ensued,  have  en- 
titled the  party  injured  to  recover  damages 
therefor  from  the  person  who  or  the  corpo- 
ration which  would  have  been  liable  if  death 
had  not  ensued,  to  maintain  an  action  for 
damages  for  the  death,  for  the  exclusive 
benefit  of  the  widow  and  next  of  kin 
of  such  deceased  person.  Cetofonte  v.  Cam- 
den (  oke  Co.  (N.  J.  Err.  &  App. )  27:  1058, 
75  Atl.   913,   78  N.  J.  L.   662. 

13.  Nonresident  aliens  are  within  the 
operation  of  a  statute  permitting  the  father 
of  one  killed  by  another's  negligence  to 
maintain  an  action  for  damages  for  the 
deatli.  although  the  statute  does  not  ex- 
pressly declare  that  they  shall  be  entitled 
to  its  benefit.  Petek  v.  American  Smelting 
&  Ref.  Co.  21 :  273,  154  Fed.  190,  83  C.  C.  A. 
284. 

14.  A  statute  giving  the  widow  a  right  of 
action  for  the  negligent  killing  of  her  hus- 
band operates  in  favor  of  a  nonresident 
alien.  Ferrara  v.  Auric  Min.  Co.  17:  964, 
95  Pac.  952,  43  Colo.  496. 

15.  A  statute  giving  a  right  of  action  to 
the  widow  and  next  of  kin  of  one  killed  by 
mnother's  negligence  without  conscious  suf- 
fering on  his  part  operates  in  favor  of  non- 
resident aliens.  Anustasakas  v.  Interna- 
tional Contract  Co.  21:  267,  98  Pac.  1  93,  51 
Wash.    119.  (Annotated) 

16.  Nonresident  alien  parents,  next  of 
Idn  of  a  minor  son  whose  death  was  wrong- 
fully caused  by  the  negligence  of  another, 
may  maintain  an  action  to  recover  for  his 
death.  Atchison,  T.  &  S.  F,  R.  Co.  v. 
Fajardo,  6:  681,  86  Pac.  301,  74  Kan.  314. 

17.  The  provision  of  Kan.  Code  Civ. 
Proc.  §  422a,  that,  where  the  residence 
of  a  person  wrongfully  killed  is  in  any 
other  state  or  territory,  an  action  to  recover 
damages  sustained  on  account  of  his  death 
may  be  brought  by  liis  widow  or  next  of 
kin,  was  designed  to  enable  the  ne.xt  of  kin 
to  recover,  where  no  administrator  had 
been  or  could  be  appointed  because  of  the 
absence  of  an  estate  to  be  administered, 
and  does  not  exclude  foreigners  from  the 
benefit  of  the  remedy.  Atchison,  T.  &  S. 
F.  R.  Co.  V.  Fajardo,  6:  681,  86  Pac.  301,  74 
Kan.  314. 

18.  The  administrator  or  executor  of  a 
person  whose  death  is  alleged  to  have  been 
Digest   1-52  r,.R.A,(N.S.) 


j  caused  by  the  wrongful  act,  neglect,  or  de- 
fault of  any  corporation  or  person,  and 
whose  next  of  kin  are  nonresident  aliens, 
may  maintain  an  action,  under  Ohio  Rev. 
Stat.  1892,  §§  6134,  6135,  for  their  benefit, 
in  the  same  manner  as  may  be  done  in 
behalf  of  citizens  of  Ohio  or  aliens  resi- 
dent therein.  Pittsburgh,  C.  C.  &  St.  L.  R. 
Co.  v.  Naylor,  3:  473,  76  N.  E.  505,  73  Ohio 
St.   115.  (Annotated) 

19.  A  treaty  provision  that  citizens  of 
the  other  contracting  country  shall  enjoy, 
in  states  of  the  Union,  in  the  protection  and 
security  of  their  persons  and  property,  the 
same  rights  which  are  enjoyed  by  citizens 
of  the  United  States,  does  not  entitle  per- 
sons not  within  the  jurisdiction  to  the  ben- 
efit of  a  statutory  provision  allowing  a  re- 
covery for  the  negligent  killing  of  a  rela- 
tive. Maiorano  v.  I3altimore  &  O.  R.  Co. 
21:  271,  65  Atl.  1077,  216  Pa.  402. 
Parents. 

Defense  to  action,  see  infra,  45-49. 

Father's  sole  right  to  recover  for,  see  Ap- 
peal AND  Erbob,  1415. 

Effect  of  contributory  negligence,  see  Pbox- 
iMATE  Cause,  166. 

Implied  repeal  of  statute  permitting  parent 
to  recover  for  wrongful  death  of  child, 
see  Statutes,  339. 

See   also   supra,   13,    16. 

20.  A  father  cannot  hold  one  negligently 
causing  the  death  of  his  child  liable  for  the 
loss  of  the  value  of  its  services  between  the, 
time  of  death  and  its  majority.  Stevenson 
v.  W.  M.  Ritter  Lumber  Co.  18:  316,  62  S. 
E.  351,  108  Va.  575.  (Annotated) 

21.  A  statute  giving  the  personal  repre- 
sentative of  a  person  killed  through  anoth- 
er's negligence  a  right  of  action  for  the 
amount  only  which  his  intestate  could  have 
recovered  had  death  not  ensued  does  not, 
by  implication,  in  case  the  decedent  is  a 
minor,  give  the  father  a  right  of  action  for 
loss  of  services  between  the  death  and  the 
child's  majority.  Stevenson  v.  W.  M.  Ritter 
Lumber  Co.  18:  316,  62  S.  E.  351,  108  Va. 
575. 

22.  An  action  for  the  benefit  of  a  parent 
for  the  instantaneous  death  of  his  minor 
son  through  another's  negligence  is  not  pre- 
cluded under  a  statute  providing  that  if 
the  negligence  is  such  as  would,  if  death  had 
not  ensued,  have  entitled  the  person  injured 
to  maintain  an  action  to  recover  damages 
in  respect  thereof,  an  action  may  be  main- 
tained for  the  benefit  of  his  next  of  kin,  by 
the  fact  that  recovery  is  limited  to  the  loss 
of  the  child's  earnings  during  minority  and 
that  the  child  could  not  have  recovered  for 
loss  of  such  earnings.  Lincoln  v.  Detroit  & 
M.  R.  Co.  51:  710,  146  N.  W.  405.  179  Mich. 
189.  (Annotated) 

23.  ITie  parents  of  a  child  which  dies 
soon  after  birth  because  of  injuries  negli- 
gently inflicted  \ipon  it  before  that  event 
cannot  maintain  an  action  against  the  neg- 
ligent person  for  damages,  under  a  statute 
providing  that  whenever  a  person  shall  die 
from  any  injury  occasioned  by  negligence, 
the  negligent  person  shall  pay  a  penalty  to 
the    father    and    mother,    if    deceased    is    a 


DEATH,  II.  b. 


891 


minor  unmarried.     Buel  v.  United  Rvs.  Co. 
45:  625,  154  S.  W.  71,  248  Mo.  126. 

(Annotated) 

24.  No  reasonable  expectation  that  the 
continued  life  of  a  boy  will  be  of  pecuniary 
benefit  to  his  father  so  as  to  enable  the  lat- 
ter to  recover  substantial  damages  for  the 
wrongful  killing  of  the  child,  under  statutes 
limiting  the  recovery  under  such  circum- 
stances to  the  pecuniar-'  loss  inflicted,  can 
be  indulged,  where  the  father  had  abandoned 
the  child,  and  for  a  period  of  seven  years 
had  remained  insensible  to  his  parental 
obligations,  although  there  is  some  slight 
evidence  that  they  retained  some  aifection 
for  each  other.  Swift  &  Co.  v.  Johnson, 
i:  1 161,  138  Fed.  867,  71  C.  C.  A.  619. 

(Annotated) 

25.  Speculation  as  to  the  ix»ssibility  of 
restoration  of  the  natural  relations  between 
•a  father  and  his  child,  whom  he  had  aban- 
doned for  a  period  of  seven  years,  and  com- 
pelled to  assume  the  burden  of  iiis  own 
support,  cannot  be  made  the  basis  of  a  re- 
covery by  the  father  of  substantial  damages 
for  the  wrongful  killing  of  the  child.  Swift 
&  Co.  V.  Johnson,  i:  1161,  138  Fed.  867,  71 
C.  C.  A.  619. 

26.  When  the  legislature  has  created  a 
right  of  actio  1  for  wrongful  death  for  the 
benefit  of  the  next  of  kin  of  deceased,  and 
has  declared  that  the  father,  if  living,  is 
the  next  of  kin  of  minor  children  who  leave 
neither  widow  nor  children,  an  action  for 
the  death  of  such  child  nmst  be  for  the 
.sole  benefit  of  the  father,  although  he  has 
deserted  his  family,  to  whose  support  the 
deceased  was,  at  the  time  of  death,  con- 
tributing, and  has  left  the  locality  of  their 
residence  without  apparent  interest  in  what 
becomes  of  them.  Swift  &  Co.  v.  Johnson, 
i:ii6i,  138  Fed.  867,  71  C.  C.  A.  619. 

27.  The  right  granted  by  La.  Eev.  Civ. 
Code,  art.  2315,  to  a  surviving  father  or 
mother,  to  recover  damages  for  the  death  of 
their  son,  does  not  extend  to  parents  by 
adoption.  Mount  v.  Tromont  Lumber  Co. 
16:  199,  46  So.  103,  121  La.  64.    (Annotated) 

28.  The  right  of  action  given  by  La.  act 
1884,  No.  71,  p.  94,  to  a  surviving  mother,  to 
recover  damages  for  the  negligent  killing  of 
her  minor  child,  refers  only  to  legitimate 
children,  and  does  not  exist  in  favor  of  the 
mother  of  an  illegitimate  child,  although 
the  child  had  been  acknovvlelged  by  her. 
Lynch  v.  Knoop,  8:  480,  43  So.  252,  118 
La.  611. 

29.  In  Louisiana  a  father  and  mother 
cannot  maintain  an  action  to  recover  dam- 
ages for  the  alleged  negligent  killing  of 
their  natural  child  who  had  not  been  legiti- 
mated by  them,  after  their  marriage,  by  a 
notarial  act  of  acknowledgment.  Landry  v. 
American  Creosote  Works,  11:387,  43  So. 
1016,  119  La.  231. 

30.  The  mother  of  an  illegitimate  cliild  is 
not  within  the  meaning  of  a  statute  giv- 
ing a  right  of  action  for  the  benefit  of  the 
parent  in  case  of  the  negligent  killing  of  an 
infant.  McDonald  v.  Southern  R.  Co.  2: 
040,  51  S.  E.  138,  71  S.  C.  352.  (Annotated) 
Digest   1-52  L.R.A.(N.S.) 


Children. 

See  also  supra,  9. 

31.  A  statute  permitting  the  personal 
representative  of  a  deceased  person  to  re- 
cover for  the  benefit  of  the  children  the  dam- 
ages occasioned  by  the  deprivation  of  the 
expectation  of  pecuniary  advantage  which 
would  have  resulted  by  a  continuance  of  the 
parent's  life,  does  not  require  the  plaintiff 
to  show  that  the  children  would  probably 
have  received  from  the  deceased  contribu- 
tions of  money  or  of  things  purchased  with 
money.  Carter  v.  West  Jersey  &  S.  R.  Co. 
(N.  J.  Err.  &  App.)  19:  128,  71  Atl.  253, 
76  N.  J.  L.  602.  (Annotated) 

32.  An  action  may  be  maintained,  under 
a  statute  permitting  the  administrator  of 
the  mother  to  recover  for  the  benefit  of  the 
children  the  damages  occasioned  by  the  dep 
rivation  of  the  expectation  of  pecuniarj-  ad- 
vantage which  would  have  resulted  by  a 
continuation  of  the  mother's  life,  where  the 
mother,  who  has  performed  ordinary  house- 
hold duties,  including  such  care  of  the  chil- 
dren as  a  mother  usually  takes,  has  lost  her 
life  through  the  wrongful  act  of  another, 
notwithstanding  the  children  have  been  sup- 
ported in  a  home  maintained  with  the  earn- 
ings of  the  father.  Carter  v.  West  Jersey  & 
S.  R.  Co.  (N.  J.  Err.  &  App.)  19:  128*  71 
Atl.  253.  76  N.  J.  L.  602. 

33.  The  legal  liability  of  a  father  and 
husband  to  contribute  to  the  support  of 
his  wife  and  minor  child  may  be  the  basis 
of  assessing  damages  against  one  who  has 
negligently  caused  his  death,  although  he 
had  deserted  the  wife  and  child,  and  they 
did  not  know  his  whereabouts  and  were  be- 
ing supported  by  the  wife's  father.  Inger- 
soll  V.  Detroit  &  M.  R.  Co.  32:  362,  128  N. 
W.  227,  163  Mich.  268.  (Annotated) 
Personal  representative. 

Survival  of  right  of  action  for  death,  see 
Abatement  and  Revival,  21. 

Conflict  of  laws  as  to,  see  Conixict  of 
Laws,  99. 

Exclusiveness  of  statutory  "remedy  for,  see 
Election  of  Remedies,  10. 

Bar  to  right  of  action,  sec  Judgment,  81. 

Conclusiveness  of  judgment,  see  Judgment', 
216. 

Bar  of  statute  of  limitations,  see  Limita- 
tion OF  Actions,  253. 

Release  by  person  injured  as  bar  to  action 
by  personal  representative  to  recover 
for  his  death,  see  Release,  11. 

See  also  supra,  3,  5,  8,  17,  18,  21. 

34.  The  administrator  of  one  having  a 
right  of  action  for  the  wrongful  death  of 
his  relative  cannot  maintain  the  action,  in 
the  absence  of  a  statute  expressly  confer- 
ring the  right.  Gilkeson  v.  Missouri  P.  R. 
Co.  24:  844,  121  S.  W.  138.  222  Mo.  173. 

(Annotated) 

35.  No  right  of  action  is  given  to  the  ad- 
ministrator of  a  child  injured  by  the  wrong- 
ful killing  of  his  parent,  to  recover  the 
damages  shown,  by  a  statute  providing  that 
for  all  wrongs  done  to  property  rights  or 
interests  of  another,  for  which  a  right  of 
action  might  have  been  maintained  against 
the  wrongdoer,  such  action  may  be  brought 


892 


DEATH,  III.,  IV 


after  tho  death  of  the  person  injured  by 
his  executor  or  administrator,  on  tho  theory 
that  the  right  of  action  which  he  impliedly 
had  for  the  wrongful  taking  from  iiim  of 
his  right  to  the  care,  support,  and  mainte- 
nance of  his  parent  was  a  property  right. 
Gilkeson  v.  Missouri  P.  R.  Co.  24:  844,  121 
S.  W.  138,  222  Mo.  173. 
Creditor's  right  to  share. 

36.  A  statute  making  the  sum  recover- 
able for  the  death  of  a  person  killed  by  neg- 
ligence answerable  for  his  debts  includes  lien 
debts  on  real  estate  which  he  has  devised. 
Sturges  V.  Sturges,  12:  1014,  102  S.  W.  884, 
126  Ky.  80. 

///.  Who  liable  for  can»ing. 

fSee  also   same   heading   in  Digest   L.R.A. 

1-10.) 

Landlord's  liability  for  death  of  tenant's 
child  caused  by  defect  in  premises,  see 
Landlord  and  Tenant,   149. 

Employer's  liability  for  death  of  minor 
servant,  see  Masteb  and  Servant,  353. 

Liability  of  railway  carrier,  generallj',  un- 
der Federal  employers'  liability  act, 
see  Master  and  Servant,  195. 

Master's  liability  for  death  resulting  from 
servant's  act,  see  Master  and  Serv- 
ant, 960,  975. 

Liability  of  municipality,  see  Municipal 
Corporations,  317,  318,  340-344,  369, 
^       374,   38.5,   464. 

IV.  Defenses. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

In  admiralty  court,  see  Admiralty,  6. 

Burden  of  establishing,  see  Evidence,  91. 

Evidence  to  establish,  see  Evidence,  2003. 

Judgment  in  action  for  personal  injury  as 
bar  to  recovery  for  death,  see  Judg- 
ment, 81.    • 

Bar  of  statute  of  limitations,  see  Limita- 
tion OF  Actions,  253. 

37.  In  an  action  for  wrongful  death  un- 
der a  statute  authorizing  the  action  when 
the  intestate  could  have  maintained  an  ac- 
tion for  the  same  act  if  death  had  not  en- 
sued, all  defenses  are  available  to  defend- 
ant which  would  have  been  available  had 
the  action  been  brought  by  the  person  in- 
jured. Suell  V.  Derricott,  23:  996,  49  So. 
893,  161  Ala.  269. 

38.  That  the  killing  was  in  self-defense 
or  to  effect  an  arrest  for  felony  is  a  good 
defense  in  an  action  for  wrongful  death  un- 
der a  statute  giving  the  personal  represent- 
ative a  cause  of  action  when  the  intestat?! 
could  have  maintained  an  action  for  the 
same  act  had  death  not  ensued.  Suell  v. 
Derricott,  23:  996,  49  So.  895,  161  Ala.  259. 

(Annotated) 

39.  One  is  not  liable  in  damages  for 
killing  another  under  the  reasonably  mis- 
taken belief  that  the  killing  was  r.  cessary 
to  prevent  a  burglary  of  his  residence,  al- 
though in  fact  the  supposed  burglary  was 
Dieest   1-52  L.R.A.(N.S.) 


merely  a  jest  or  an  attempt  to  frighten  him.. 
Foster  v.  Shepherd,  45:  167,  101  N.  E.  411,. 
258   111.    164. 

40.  One  who  negligently  causes  the  death 
of  a  married  woman  cannot  escape  liability 
to  her  estate  because  her  earnings  belong 
to  her  husband.  Hunter  v.  Southern  R.  Co. 
29;  851,  68  S.  E.  237,  152  N.  C.  082. 

41.  That  the  terror  caused  by  blasting 
operations  would  cause  the  death  of  one  ill 
with  fever  was  not  foreseen  by  the  one 
carrying  on  such  operations  will  not  relieve 
him  from  liability  therefor,  if  they  were 
performed  in  such  manner  that  some  injury 
was  likelv  to  result  from  them.  Hunter  v. 
Southern'  R.  Co.  29:  851,  68  S.  E.  237,  152 
N.  C.  682. 

42.  The  failure  of  a  husband  who  has 
been  injured  by  the  negligence  of  a  city, 
to  give  the  statutory  notice  necessary  to- 
enable  him  to  maintain  an  action  against 
the  city  for  such  injury,  does  not,  after  his 
deatli,  which  occurred  after  the  time  for 
giving  such  notice  had  expired,  prevent  the 
maintenance  of  an  action  by  his  widow, 
who  gave  the  statutory  notice  within  the 
requisite  time  after  his  death,  under  a 
statute  giving  a  right  of  action  for  dam- 
ages for  death  caused  by  wrongful  act,  in 
case  the  decedent  might  have  maintained 
an  action,  had  he  lived,  for  injury  for  the 
same  act  or  omission.  Nesbit  v.  Topeka, 
40:  749,  124  Pac.  166,  87  Kan.  394. 

(Annotated) 

43.  Abusive  language  to  a  carrier's  agent 
by  a  passenger  who  is  angry  at  a  charge 
for  storage  on  his  baggage,  cannot  justify 
or  excuse  the  act  of  the  agent  in  shooting 
him  when  he  is  going  out  of  the  office. 
Daniel  v.  Petersburg  R.  Co.  4:  485,  23  S.  E. 
327,  117  N.  C.  592.  (Annotated) 
Contributory  negligence  of  deceased. 
Contributory  negligence  as  defense,  gen- 
erally, see  Negligence,  II. 

44.  A  constitutional  or  statutory  provi- 
sion making  one  liable  in  damages  for  neg- 
ligently causing  another's  death  does  not 
preclude  the  defense  of  contributory  negli- 
gence. Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v. 
Lovell,  47:  909,  132  S.  W.  569,  141  Ky.  249. 
Contributory  negligence  of  bene- 
ficiary. 

See  also  Drugs  and  Druggists,  11 ;   Proxi- 
mate Cause,  166. 

45.  Where  a  fatlier  consents  to,  or  is  a 
party  to,  a  contract  of  employment  of  his 
infant  son  under  twelve  years  of  age  in  a 
coal  mine  in  violation  of  statute,  and  the 
son  is  killed  by  an  explosion  in  the  mine, 
and  the  father  would  be  the  sole  beneficiary 
of  any  recovery,  his  contributory  negligence 
in  respect  to  such  employment  will  bar  ac- 
tion against  the  owner  or  operator  of  the 
mine  for  damages,  in  the  absence  of  some 
other  act  of  negligence,  not  of  a  fellow 
servant,  on  the  part  of  the  owner  or  oper- 
ator shown  to  have  been  the  proximate 
cause  of  such  explosion  and  consequential 
death  of  such  infant  employee.  Dickinson 
V.  Stuart  Colliery  Co.  43:335,  76  S.  E.  654^ 
71  W.  Va.  325. 

46.  A  father  who,  with  knowledge  of  the 


DEATH,  v.,  VI. 


893 


•danger,  permits  his  son  to  work  in  a  mine 
for  twenty-six  consecutive  hours,  until  he 
becomes  incapacitated  to  guard  himself  from 
danger,  cannot  recover  for  the  personal  loss 
suffered  by  him  by  the  killing  of  the  boy 
while  asleep  on  a  car  track,  nor  can  there 
be  a  recovery  by  an  administrator  of  the 
boy's  estate  where  the  father  would  be  sole 
beneficiary  in  case  of  a  recovery.  Lee  v. 
New  River  &  Pocahontas  Consol.  Coal  Co. 
45:  940,  203  Fed.  644,  122  C.  C.  A.  644. 

47.  That  a  father  is  the  sole  beneficiary 
and  distributee  of  his  son's  estate  does  not 
render  his  contributory  negligence  a  de- 
fense to  an  action  by  him  as  administrator 
to  recover  damages,  for  the  sole  benefit  of 
the  son's  estate,  for  his  conscious  suffering 
through  personal  injuries  negligently  in- 
flicted u*pon  him  by  another  which  resulted 
in  his  death.  Nashville  Lumber  Co.  v.  Bus- 
bee,  38:  754,  139  S.  W.  301,  100  Ark.  76. 

(Annotated) 

48.  Contributory  negligence  of  a  father 
is  a  defense  to  an  action  by  him  as  a  per- 
sonal representative  for  the  death,  by 
wrongful  act,  of  a  minor  child,  when  he  is 
the  sole  beneficiarv.  Scherer  v.  Schlaberg, 
24:  520,  122  N.  W*  1000,  18  N.  D.  421. 

49.  The  act  of  a  mother  in  permitting  her 
six  year-old  child  to  cross,  Tinattended,  rail- 
road tracks  used  for  switching  cars,  is  such 
negligence  as  will  prevent  a  recovery  by  the 
parents  for  the  child's  death  in  case  she  is 
run  over  by  a  train  before  she  is  seen  by, 
or  her  presence  known  to,  any  member  of  the 
crow.  Vinnette  v.  Northern  P.  R.  Co.  18: 
328,  91  Pac.  975,  47  Wash.  320.  (Annotated) 
Release   or   compromise. 

Authority  to  compromise,  see  infra,  V. 
Compromise   of   claim   for   death   with    one 
of    two    joint    wrongdoers,    see    Joint 
Creditors  and  Dkitiors,  II. 
."iO.  A  release  by  an  administrator  of  a 
claim  for  damages  on  account  of  the  death 
of    his    intestate,    fraudulently    made    with 
the  adverse  party,  who  participated  in  the 
fraud,  is  not  a  bar  to  an  action  by  a  suc- 
ceeding administrator  to  enfoice  the  claim. 
Alio   V.   Jesmore,    10:  998,    112   N.    W.    538, 
101  Minn.  449. 

51.  A  widow,  by  accepting  benefits  from 
the  relief  department  of  a  railroad  company 
in  whose  service  her  husband  was  killed,  is 
precluded  from  thereafter  maintaining  for 
herself  an  action  against  the  company  for 
damages  arising  from  the  husband's  death, 
where  the  contract  of  membership  in  the  re- 
lief department  provides  that  receipt  of 
benefits  shall  bar  all  actions  for  damages; 
but  she  is  not  thereby  precluded  from 
maintaining  an  action,  as  administratrix 
of  the  estate  of  the  deceased,  fsr  the  b&ne- 
fit  of  her  minor  children.  Chicago,  B.  & 
Q.  R.  Co.  V.  Healy,  10:  198,  107  N.  W.  1005, 
111  N.  W.  598,  76  Neb.  783. 

F.  Authority  to  compromise  claim  for. 

(See  also   same  heading  in  Digest   L.R.A. 

1-70.) 

52.  The  settlement  of  a  claim  for  wrong- 
ful death  by  the  one  entitled  to  receive  the 
Digest  1-52  L.R.A.(N.S.) 


damages  therefor  is  ineffectual  if  made  aft- 
er the  administrator  has  begun  an  action 
to  recover  the  damages,  where  the  statute 
vests  the  right  of  action  in  the  adminis- 
trator and  empowers  him  to  compromise 
and  settle  the  claim  for  damages  growing 
out  of  the  injury.  Louisville  v.  Schneider, 
35:  207,   136   S.   VV.   212,   143  Ky.   171. 

(Annotated) 

53.  A  settlement  by  the  sole  heir  at  law 
of  a  claim  for  damages  for  the  suffering  of 
one  killed  through  another's  negligence  is 
binding  upon  an  administrator  of  decedent's 
estate  subsequently  appointed,  who  does  not 
need  the  assets  in  the  administration  of  the 
estate,  but  will  distribute  any  recovery  by 
him  to  such  heir.  McKeigue  v.  Chicago  &  N. 
W.  R.  Co.  11:  148,  110  N.  W.  384,  130  Wis. 
543.  (Annotated) 

53a.  An  administrator  may  settle  a  claim 
for  the  negligent  killing  of  his  intestate 
without  authority  from  the  court.  Olston 
v.  Oregon  Water  Power  &  R.  Co.  20:  915, 
96  Pac.  1095,  97  Pac.  538,  52  Or.  343. 

VI.  Effect  of. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

To  abate  action,  see  Abatement  and  Re- 
vival, II. 

Effect  of  infant's  death  on  right  to  disaffirm 
deed  made  by  him,  see  Abatement  and 
Revival,  6. 

Effect  of  death  of  party  before  appeal  is 
taken,  see  Appeal  and  Error,  112. 

Effect  of  death  of  party  between  submission 
and  decision  of  cause  on  appeal,  see  Ap- 
peal and  Error,  1578. 

On  author itv  of  attornev,  see  Attorneys, 
37. 

Effect  of  death  before  settlement  of  case  of 
attorney  who  has  taken  case  on  con- 
tingent fee,  see  Attorneys,  62. 

Effect  of  death  pending  appeal  of  one  of 
several  attorneys  who  have  agreed  to 
share  contingent  fee,  see  Attorneys,  63. 

On  check,  see  Banks,  92. 

Effect  of  death  of  insured  between  mailing 
of  acceptance  of  option  and  its  receipt 
by  the  company,  see  Coxtracts,  187. 

To  take  contract  out  of  statute  of  frauds,  see 
Contracts,  241-243. 

To  terminate  contract,  ace  Contracts,  723- 
726;  Master  and  Servant,  98,  99. 

Effect  of  death  preventing  rendition  of 
services  contracted  for,  see  Dam.\ges, 
205. 

Effect  of  death  of  illegitimate  before  his 
mother  on  right  of  his  children  to  in- 
herit from  her,  see  Descent  and  Dis- 
tribution, 14. 

Of  husband;  effect  on  alimony,  see  Divorce 
and  Separation,  127. 

Effect  of  father's  death  on  duty  to  support 
children  after  divorce,  see  Divorce  and 
Separ.\tion,  155-157. 

Effect,  on  admissibility  of  book  entries,  of 
death  of  person  making,  see  Evidence, 
800-802,  819,  844-846,  864. 


S!»4 


DEATH  DUTIES— DEBT. 


Effect  on  admissibilitv  of  evidence,  see  Evi- 
dence, 819,  1374-1391. 
Of  homesteader,  effect  on  creditors'  rights, 

see  Homestead,  19-23. 
Of  members  of  family,  effect  on  homestead, 

see  Homestead,  41. 
Effect  of  death  of  beneficiary  within   life- 
time of  insured,  see  Insurance,  478. 
On  judgment,  see  Judgment,  97. 
Right  to  vacate  divorce  decree  after  death 

of  party,  see  Judgment,  327-329. 
Vacation  of  judgment  because  of  death  be- 
fore judgment,  see  Judgment,  338,  339, 

375,  376. 
Effect  to  terminate  lease,  see  Landlord  and 

Tenant,  57. 
Effect    on    contract    to    support    person    in 

part   payment   of   rent,   see   Landlord 

and  Tenant,  185. 
Effect  to  start  running  of  limitations,  see 

Limitation  of  Actions,  218. 
On    subcontractor's    lien,    see    Mechanics' 

Liens,  70. 
Effect  of  death   of   judgment   defendant  on 

time   for   filing   petition   for  new  trial, 

see  New  Trial,  74. 
To  create  vacancy  in  office,  see  Officers,  25, 

30. 
To  terminate  agency,  see  Perpetuities,  6; 

Principal  and  Agent,  46,  48. 
Release  of  surety  on  bond  by,  see  Principal 

AND  Sl'RETY,  34,  35. 
Effect  of  death  of  mortgagor  in  possession 

upon  right  of  mortgagee  under  chattel 

mortgage,  see  Replevin,  6. 
Of  stallion,  before  purchaser  has  exercised 

right  to  return,  see  Sale,  123. 
To  vest  property,  see  Wills,  300. 
Right  to  recover  after  death  of  one  for  whose 

benefit  charge  is  made  on  property  sums 

accruing  during  her  lifetime,  see  Wills, 

384. 
Effect  of  death  of  proposed  annuitant  before 

purchase  of  annuity,  see  Wills,  395. 
On  competency  of  witness,  see  Witnesses, 

I.  c 
See  also  Sale,  146. 

54.  The  authority  of  one  in  whose  hands 
securities  are  placed  to  make  distribution 
of  t^em  among  the  owner's  children  to  whom 
tliey  are  given  by  the  owner,  and  for  whom 
delivery  is  made  to  such  person,  is  not  re- 
voked by  the  latter's  death.  MoUison  v. 
llittgers,  29:  1179,  118  N.  W.  512,  140  Iowa, 
365. 

♦■»♦ 


DEATH  DUTIES. 

See  Taxes,  V. 

^-  ^^^ 


DEATH  PENALTY. 


See  Cafttal  Punishment. 
Digest   1-52  I..R.A.(M.S.) 


DEBASED  FEIL 

See  Wills,  243. 

♦-•-♦ 

DEBATES. 

Resort  to  debates  in  Congress  in  conetruing^ 
statute,  see  Statutes,  85,  206. 


DEBAUCHERY. 


Prohibiting  interstate  transportation  of 
women  for  purposes  of,  see  Commerce, 
40,  41. 


DE  BONIS  XON. 


Appointment  of  administrator  de  bonis  non, 

see    Executors   and   Administrators, 

17-19. 
Resignation  of  administrator  de  bonis  non, 

see    ExECTTTORs    and    Administrators, 

39. 
Powers  of  administrator  de  bonis  non,  see 

Executors    and    Administrators,    48, 

49. 
Action  by  administrator  de  bonis  non,  see 

Executors    and   Administrators,    89,. 

90. 


DEBRIS. 

Sale  of  debris  after  loss  of  insured  property, 
see  Insurance,  869. 


DEBT. 

Arrest  for,  see  Arrest,  16-19. 

Imprisonment  for,  see  Contempt,  110,  111; 
Imprisonment  for  Debt. 

Liability  for,  of  sum  recoverable  for  death 
of  person  killed  by  negligence,  see 
Death,  36. 

Liability  of  heirs  for  debt  of  ancestor,  see 
Descent  and  Distribution,  III.;  Ex- 
ecutors AND  Administrators,  98. 

Alimony  as,  see  Divorce  and  Separation, 
80. 

Parol  evidence  to  explain  writing  purport- 
ing to  fix  compensation  for  collecting 
debt,  see  Evidence,  1019. 

Power  of  executor  to  create,  see  Executors 
AND  Administrators,  47. 

Situs  of,  for  purpose  of  garnishment,  see 
Garnishment,  I.  d.. 

Deduction  of  debts  due  insurer  in  paying 
insurance,  see  Insurance,  800. 

Interest  on,  see  Intb21EST. 

Actionability  of  charge  of  nonpayment  of, 
see  LiBEi>  AND  Slander,  59. 

Assault  by  servant  sent  to  collect,  see  Mas- 
ter AND  Servant,  958. 


DEBTOR  AND  CREDITOR. 


895 


Debt  limit  of  municipality,  see  Municipal 

Corporations,  II.  e,  2. 
Debt  limit  of  school  district,  see  Schools, 

56-58. 
Deduction   of,   in   assessment   of   taxes,   see 

Taxes,  23,  185.  * 

Debt  limit  of  county,  see  Taxes,  37. 
Situs  of,  for  purpose  of  taxation,  see  Taxes, 

137-148. 
Division  of  township  as  affecting  its  assets 

and  liabilities,  see  Towns,  1,  2. 
Charging  debts  of  testator  on  land  devised, 

see  Wills,  385. 
Legacy  given  in  satisfaction  of,  as  subject 

to  abatement,  see  Wills,  406. 
Alimony  as  a  debt,  see  Divorce  and  Sepa- 
ration, 80. 


DEBTOR  AND  CREDITOR. 

Accord  and  satisfaction  between,  see  Accord 
AND    Satisfaction. 

Arrest  for  debt,  see  Arrest,  16-19. 

Assignments  for  creditors,  see  Assignment 
for  Creditors. 

When  relation  of  debtor  and  creditor  be- 
tween attachment  creditor  and  surety 
on  bond  arises,  see  Attachment,  32. 

Payment  of  creditor  of  bank  official  with 
funds  of  bank,  see  Banks,  19,  22. 

Compromise  and  settlement  between,  see 
Compromise  and  Settlement. 

Constitutionality  of  statute  subjecting 
spendthrift  trust  to  execution,  see  Con- 
stitutional Law,  382,  781. 

Obligation  to  pay  debt  of  another  within 
statute  of  frauds,  see  Contracts,  I.  e, 
2. 

Mutuality  of  contract  between  creditor  and 
third  person  agreeing  to  pay  debt,  see 
Contracts,  131. 

Construction  of  agreement  to  assume  debt, 
see  Contracts,  371-373. 

Breach  of  agreement  to  pay  "now"  or  "on 
demand,"  see  Contracts,  694. 

Statute  forbidding  posting  of  list  of  debtors, 
see  Contracts,  727. 

Liability  of  officers  of  corporation  to  credi- 
tors, see  Corporations,  IV.  g,  5,  a. 

Liability  of  incorporators  to  creditors,  see 
Corporations,  IV.  h. 

Right  of  creditor  of  corporation  to  question 
the  legality  of  its  organization,  see  Cor- 
porations, 7. 

Rights  of  creditor  of  corporation  as  against 
one  to  whom  assets  are  transferred,  see 
Corporations,   21-32. 

Right  of  creditor  to  enforce  stockholder's 
liability,  see  Corporations,  364a. 

Who  is  a  creditor  entitled  to  institute  pro- 
ceedings to  wind  up  corporation,  see 
Corporations,  397. 

Creditor's  right  to  share  in  action  for  death, 
see  Death,  36. 

Liability  o'f  heirs  for  debts  of  ancestor,  see 
Descent  and  Distribution,  III.; 
Executors  and  Administrators,  98. 

Appropriation  of  alimony  for  wife's  debts, 
see  Divorce  and  Separation,  94,  95. 

Digest  1-52  L.K.A.fN.S.) 


Rights  of  creditor  on  division  of  property 
in  divorce  suit,  see  Divorce  and  Sepa- 
ration, 129,  143.  • 

Estoppel  of  one  leaving  his  chattels  in  an- 
other's possession  to  claim  title  against 
the  latter's  creditors,  see  Estoppel,  51, 
52,  265. 

Presumption  and  burden  of  proof  as  to 
debtor's  ability  to  pay,  see  Evidence, 
207,  208. 

Presumption  that  creditor  of  corporation 
relied  upon  representations  that  stock 
was  fully  paid,  see  Evidence,  267. 

Parol  evidence  of  condition  on  whicli  sealed 
release  of  debt  was  delivered,  see  Evi- 
dence, 1025. 

Evidence  to  show  notice  to  debtor  of  assign- 
ment of  claim  against  him,  see  Evi- 
dence, 1582. 

Creditors  of  decedent,  see  Executors  and 
Administrators,  IV. 

Right  of  creditor  to  letters  of  administra- 
tion on  estate  of  debtor,  see  Executors 
and  Administrators,  12. 

Effect  of  appointment  of  debtor  as  adminis- 
trator of  creditor's  estate,  see  Exixju- 
TORS  AND  Administrators,  80. 

Procuring  payment  of  just  debt  by  false  pre- 
tenses, see  False  Pretenses,  15,  16. 

Conveyances  fraudulent  as  to  creditors,  see 
Fraudulent  Conveyances. 

Rights  of  creditors  in  community  property, 
see  Husband  and  Wife,  II.  c. 

Rights  of  husband's  creditors  as  affected  by 
marital  relations  of  debtor,  see  Hus- 
band AND  Wife,  II.  k. 

Contract  by  married  woman  to  pay  debt  of 
other  person,  see  Husband  and  Wife, 
39,  40. 

Effect  of  intermarriage  between  debtor  and 
creditor  upon  the  indebtedness,  see  Hus- 
band AND  Wife,  58. 

Liabilitv  of  wife's  separate  estate  for  her 
debt,  see  Husband  and  Wife,  90,  95- 
98. 

Wife's  priority  over  husband's  creditors,  see 
Husband  and  Wife,  145. 

Rights  of  creditor  to  life  insurance,  see  In- 
surance, VI.  d,  2,  d. 

Statute  permitting  bankrupt  to  assign  in- 
surance on  his  life  to  his  wife  free  from 
claims  of  creditors,  see  Insurance,  449, 
450. 

Joint  creditors  and  debtors,  see  Joint  C'redi- 
TORS  and  Debtors. 

Right  of  one  taking  mortgage  from  judg- 
ment debtor  to  challenge  amount  of 
judgment,  see  Judgment,  126. 

Liability  for  use  and  occupation,  of  one 
taking  possession  of  leasehold  of  debtor, 
see  Landlord  and  Tenant,  ]83,  184. 

Libel  in  attempting  to  collect  debt  see  Libel 
AND  Slander,  15. 

Right  of  judgment  creditor  of  life  tenant  to 
income  from  life  estate,  see  Life  Ten- 
ants, 2. 

When  limitations  begin  to  run  on  promise 
to  pay  a  debt  when  able,  see  Limita- 
tion of  Actions,  122. 

When  limitation  begins  to  run  on  promise 
to  pay  "at  earliest  possible  convenience," 
see  Limitations  op  Actions,  126,  127. 


896 


DECEDENTS— DEDICATION. 


Repeated  posting  on  debtor's  door  of  request 
to  call  and  pay  debt  as  probable  cause 
ior  arrest,  see  Malicious  Prosecution, 
24. 

Liability  for  assault  by  servant  sent  to  col- 
lect debt,  see  Masteb  and  Servant,  958. 

Bight  of  judgment  creditor  to  redeem  from 
mortgage  foreclosure,  see  Mortgage, 
159. 

Right  of  judgment  creditors  to  maintain 
action  to  annul  mortgage  in  fraud  of 
their  rights,  see  Parties,  20. 

Rights  of  creditors  of  partnership,  see  Part- 
nership, III. 

Payment  by  debtor,  see  Payment. 

Validity  of  pledge  as  against  creditors,  see 
Pledge  and  Collateral  Security,  2- 
-I       10. 

Effect  of  recording  laws  on  rights  of  credi- 
tors, see  Records  and  Recording  Laws. 

Enforcement  by  creditor  of  taxing  district, 
of  tax  lien,  see  Taxks,  266,  207. 

Conversion  by  creditor,  see  Trover,  14,  ]5. 

Rights  of  creditors  in  trust  fund,  see 
Trusts,  III.  b. 

Priority  of  United  States  as  creditor,  see 
United  States,  V. 

Right  of  creditor  to  enforce  vendor's  lien, 
see  Vendor  and  Purchaser,  80-82. 

Insolvency  of  debtor,  see  Assignment  for 
Creditors;  Bankruptcy;  Banks,  V.; 
Corporations,  VI.  f,  VII.  c;  Insol- 
vency;  Partnership,  35-38. 

As  to  remedies  of  creditor,  see  Attach- 
ment; Creditors'  Bill;  Fraudulent 
Conveyances,  VII.;  Garnishment; 
Levy  and  Seizure. 

Lien  of  creditor,  see  Liens  ;  Mechanics' 
Liens. 

As  to  exemptions,  see  Exemptions;  Home- 
stead. 

See  also  Debt. 


DECEDENTS. 


Admissibility  of  declarations  of,  see  Evi- 
dence, 1374-1391. 

Evidence  as  to  character  or  reputation,  see 
Evidence,   1558-1567. 

Administration  of  estates  of,  see  Executors 
and  Administrators, 


DECEIT. 

See  Fraud  and  Deceit. 

♦-•-♦ 


DECENCY. 


Ambiguity  of  statute  punishing  conduct  out- 
raging public  decency,  see  Statutes,  42, 


DECISIONS. 


Change  of,  as  affecting  contract,  see  Con- 
stitutional Law,  II.  g,  1,  b. 

Of  association  or  religious  society,  couclu- 
sivont'ss  of,  see  Courts,  I.  d. 


DECLARATIONS. 


'   DECEDENTS'  ESTATES. 

Administration  of,  see  Executors  and  Ad- 
ministrators. 

Rights  of  heirs  and  distributees  in  general, 
see  Descent  and  Distribution. 

Running  of  statute  of  limitations  in  action 
as  to,  see  Limitation  of  Actions,  II.  j. 

Parties  defendant  in  action  respecting,  see 
Parties,  II.  a,  4. 

Pleading  as  to,  see  Pleading,  II,  n. 

"Set-off  by  or  against,  see  Set-Off  and  Coun- 
terclaim, I,  e. 

Digest  1-52  L.R.A.(N.S.) 


Evidence  of,  see  Evidence,  X. 
In  pleading,  see  Pleadinc;,  II. 


DECOY. 

Effect  of  use  of  decoy  letter  to  secure  evi- 
dence against  one  suspected  of  crime, 
see  Post  Office,  16,  16. 


"•-♦ 


rl:Jfv/    v:"'  DECREE. 

See  JlTDGMENT. 

^•» 


DEDICATION. 


7.  Mode  and  effect,  1—37. 

a.  In  general,  1—19. 

b.  By  map  or  plat,  20—36. 

c.  Who  may  dedicate,  37. 
II.  Acceptance,  38—4=1. 

III.  Revocation;  abandonment;  revert- 
er,   42-4:4:. 

Tender  of  dedication  of  land  defeated  by 
adverse  possession,  see  Adverse  Pos- 
session, 40. 

Attempted  dedication  of  property  to  public 
use  by  directors  of  corporation,  see  Cor- 
porations, 110. 

Implied  dedication  of  land  as  public  park, 
see  Covenant,  18. 

Estoppel  of  municipality  to  assert  title  to 
land  dedicated  for  street,  see  Estoppel, 
8,  9. 

Estoppel  to  deny,  see  Estoppel,  124,        '> 

Evidence  of  intent  to  dedicate  land,  see  Evi- 
dence,  1628,  ]629. 

Sufficiency  of  proof  of,  see  Evidence,  2189, 
2190, 

Effect  of  judgment  to  bar  rights  of  munici- 
pality under  dedication,  see  Judgment, 
203. 


DEDICATION,  I.  a. 


897 


Power  of  legislature  to  determine  use  to 
which  dedicated  property  shall  be  put, 
see  Legislature,  8. 

Sufficiency  of  finding  as  to,  see  Trial,  1107. 

I,  Mode   and   effect. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  The  terms  of  a  dedication  of  a  strip 
of  land  "to  be  kept  open  as  a,n  alley"  cannot 
be  changed  by  the  fact  that  at  the  time 
of  the  dedication  it  is  obstructed  by  a  por- 
tion of  a  building.  Gaynor  v.  Bauer,  3: 
1082,  39  So.  749,  144  Ala.  448. 

2.  A  dedication  of  property  to  public 
use  is  not  established  by  evidence  of  the 
recollection  of  officers  of  the  corporation  to 
which  it  belonged  that  it  had  been  dedi- 
cated to  public  use,  where  the  corporation 
continued  to  exercise  absolute  control  over 
it,  and  the  public  never  claimed  it,  levying 
and  collecting  the  taxes  on  it  as  though  the 
title  remained  in  the  former  owner.  Stacy 
V.  Glen  Ellyn  Hotel  &  Springs  Co.  8:  966,  79 
N.  E.  133,  223  111.  546. 

3.  Consent  by  a  lot  owner  to  the  pla- 
cing of  earth  thereon  as  a  lateral  support  to 
the  adjoining  street  when  its  grade  is  raised 
above  the  level  of  the  lot  amounts  to  a  dedi- 
cation to  the  public  use;  and  he  cannot  sub- 
sequently require  a  removal  of  the  support 
or  compensation  for  the  use  of  his  property. 
Williams  v.  Hudson,  12:  727,  110  N.  W.  239, 
130  Wis.  297. 

4.  That  a  desert  entryman  and  his  suc- 
cessors in  interest  intended  that  the  occu- 
pants of  a  town  site  should  have  the  free 
use  of  water  on  the  streets  of  such  town 
site  is  not  sufficient  to  show  a  perpetual 
dedication  of  said  water  to  a  public  use. 
Hailey  v.  Riley,  17:  86,  95  Pac.  686,  14 
Idaho,  481. 

5.  Mere  failure  to  list  shore  property 
for  taxation  does  not  vest  title  thereto  in 
the  public.  Poole  v.  Lake  Forest,  23:  809, 
87  N.  E.  320,  238  111.  305. 

6.  No  dedication  to  public  use  is  effect- 
ed by  the  grant,  by  one  disposing  of  lots  in 
a  tract  of  land,  of  a  private  right  of  way 
over  a  centrally  located  strip,  to  furnish 
grantees  convenient  access  to  the  street. 
Brown  v.  Oregon  Short  Line  R.  Co.  24:  86, 
102  Pac.  740,  36  Utah,  257. 

7.  A  dedication  to  the  public  of  a 
piece  of  land  marked  on  a  plat  as  a  park  is 
not  shown  by  the  mere  planting  of  a  few 
trees  upon  it,  where  it  is  never  used  as  a 
park,  and  nothing  is  ever  done  to  fit  it  for 
that  purpose.  Stover  v.  Steffey,  37:  856,  81 
Atl.  .33,  115  Md.  524. 

8.  A  deed  by  a  man  and  wife  to  trus- 
tees for  the  use  and  benefit  of  a  religious 
sect,  which  was  invalid  at  the  date  thereof 
for  want  of  privy  examination  of  the  wife, 
cannot  be  upheld  as  a  parol  dedication  of 
the  property  attempted  to  be  conveyed. 
Deepwater  R.  Co.  v.  Honaker,  27:  388,  66 
S.  E.  104,  66  W.  Va.  136. 
Digest  1-52  L.R.A.(N.S.)  57 


9.  The  dedication  and  acceptance  of  a 
strip  of  land  as  a  public  street  is  shown  by 
the  facts  that  the  former  owner  recognized 
it  in  selling  lots  as  a  public  highway,  and 
that  the  municipality  had  policed  it  and 
authorized  the  construction  of  a  railroad  on 
it,  although  the  street  had  not  been  im- 
proved or  sidewalks  laid.  Southern  R.  Co. 
V.  Caplinger,  49:  660,  152  S.  W.  947,  151 
Ky.  749. 

Shoivn.  by  use. 

Presumption  of  right  to  visit  object  of  pub- 
lic  interest   on   private   property   from 
continued  user,  see  Easements,  8. 
See  also  supra,  9,  35. 

10.  An  implied  common-law  dedication 
of  a  plat  of  land  for  public  use  for  burial 
purposes  is  effected  by  permitting  its  use 
by  the  entire  neighborhood  as  a  place  for  in- 
terment of  the  bodies  of  the  dead  for  a  long 
series  of  years.  Roundtree  v.  Hutchinson, 
27:  875,  107  Pac.  345,  57  Wash.  414. 

( Annotated ) 

11.  To  constitute  dedication  of  water 
rights  by  user,  it  is  necessary  to  find  the 
probative  facts  which,  of  themselves,  con- 
stitute dedication;  and  it  is  not  enough  to 
find  facts  which  merely  have  a  tendency  to 
prove  dedication,  since  the  use  found  to  ex- 
ist must  be  inconsistent  with  a  permissive 
use  or  a  mere  license.  Hailey  v.  Riley,  17: 
86,  95  Pac.  686,  14  Idaho,  481. 

12.  Long-continued  use,  with  the  knowl- 
edge of  the  owner,  of  water  upon  streets 
and  alleys  in  a  municipality,  is  not  incon- 
sistent with  a  permissive  use  and  a  license 
to  use  the  same,  and  does  not  show  an  in- 
tention to  perpetually  dedicate  the  water 
to  a  public  use.  Hailey  v.  Riley,  17:  86,  95 
Pac.  686,  14  Idaho,  481. 

13.  Purchasers  of  building  lots  which 
were  laid  out  on  the  plat  of  a  town  site  upon 
a  desert  entry,  to  which  locality  water  waa 
brought  by  ditches  and  used  on  the  streets 
of  the  town  for  irrigation  and  domestic  pur- 
poses continuously  and  uninterruptedly  for  a 
period  of  over  twenty  years,  acquired  a  right 
to  use  the  water  by  dedication,  within  the 
meaning  of  Idaho  Const,  art.  15,  §  4,  and 
the  statutes  of  the  state;  and  the  water  can- 
not be  withheld  from  the  streets  and  lots 
of  the  town  so  long  as  the  consumers  pay 
the  reasonable  and  legally  established  ren- 
tal therefor.  Hailey  v.  Riley,  17:  86,  95  Pac. 
686,  14  Idaho,  481. 

13a.  A  public  highway  must  prima  facie 
lead  from  one  public  place  to  another.  A 
cul-de-sac  may  be  a  public  highway,  but 
the  dedication  of  a  cul-de-sac  as  a  highway 
will  not  be  presumed  from  mere  public  user, 
witliout  evidence  of  expenditure  on  tlie  ' 
place  in  dispute  for  repairs,  lighting,  or 
other  matters,  by  the  public  aufjliority. 
Attorney  General  v.  Antrobus,  4  B.  R.  C. 
868  [1902]  2  Ch.  188.  Also  Reported  in 
74  L.  J.  Ch.  N.  S.  599,  69  J.  P.  141,  92  L. 
T.  N.  S.  790,  21  Times  L.  R.  471,  3  L.  G. 
R.  1071. 

14.  A  dedication  of  a  part  of  the  land 
of  a  wharf  company  aa  a  city  street  cannot 
be  implied  from  its  us<-  oy  the  general  pub- 
lic, such  as  does  not  Interfere  with  the  com- 


898 


DEIDCATION,  I.  b. 


pany's  private  enjoyment  thereof,  especially 
where  the  wharf  company  paid  taxes  on  the 
property,  and  the  same  were  received  by 
the  city.  Savannah  v.  Standard  Fuel  Sup- 
ply Co.  ^8:  469,  78  S.  E.  906,  140  Ga.  .353. 

(Annotated) 
Effect. 

15.  Where,  by  statute,  a  dedication  con- 
veys the  fee,  an  owner  of  property  abutting 
on  a  strip  of  land  which  has  been  dedicated 
for  highway  purposes  cannot  recover  from 
the  municipality  the  value  of  natural  prod- 
ucts of  the  soil,  grown  upon  the  surface 
of  the  highway,  and  converted  by  the  mu- 
nicipality to  its  own  use.  Carroll  v.  Elm- 
wood,  33:  1053,  129  N.  W.  537,  88  Neb. 
352.  (Annotated) 

16.  The  platting  of  a  public  square  and 
its  occupation,  use,  and  improvement  as  a 
park,  by  the  municipality  within  the  lim- 
its of  which  it  is  situated,  vests  the  title 
completely  in  the  city,  although  there  Is 
no  conveyance  by  the  county  commissioners, 
who  act  as  a  medium  through  which  the 
dedication  of  the  land  as  a  town  plat  is 
effected.  Lacey  v.  Oskaloosa,  31:  853,  121 
N.  W.  542,  143  Iowa,  704. 

Diversion  to   otlier  use. 

Establishment  of  pesthouse  in  park  as  di- 
version to  illegal  purpose,  see  Injunc- 
tion, 374. 

17.  There  is  no  diversion  in  running  a 
subway  under  land  deeded  for  common  use 
as  a  training  field  and  cow  pasture,  where 
there  will  be  no  interference  with  the  sur- 
face except  a  slight  enlargement  of  the  ap- 
proaches to  a  station.  Codman  v.  Crocker, 
25:  980,  89  N.  E.  177,  203  Mass.  146. 

( Annotated ) 

18.  The  erection  of  a  public  library 
building  upon  a  portion  of  a  tract  of  land 
devised  to  a  city  upon  condition  that  it 
shall  be  used  forever  as  a  public  park  is 
inconsistent  with  the  purpose  for  which  the 
park  was  dedicated,  and  amounts  to  a  di- 
version. Hopkinsville  v.  Jarrett,  50:  465, 
162  S.  W.  85,  156  Ky.  777.  (Annotated) 

19.  The  fact  that  a  statutory  provision 
empowering  a  city  to  permit  the  use  of  any 
property  belonging  to  it,  or  dedicated  to 
public  use  therein,  for  the  purpose  of  erect- 
ing a  public  library  building,  was  in  effect 
at  the  time  of  the  making  of  a  will  devising 
land  to  a  city  upon  condition  that  it  shall 
be  used  forever  as  a  public  park,  does  not 
prevent  the  use  of  a  part  of  such  land  as 
a  site  for  a  public  library  from  being  a 
diversion  from  the  purpose  for  which  it 
was  dedicated.  Hopkinsville  v,  Jarrett, 
50:  465,  162  S.  W.  85,  156  Ky.  777. 

I        h.  By  map  or  plat. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Admissibility  of  evidence  to  show  intent  of 
person  dedicating,  see  Evidence,  1628. 

Right  of  one  dedicating  to  testify  that  he 
had  no  intent  to  dedicate,  see  Wit- 
nesses, 12. 

Digest  1-52  I..R.A.(N.S.) 


20.  The  strip  of  land  between  the  bluff 
and  the  water's  edge  is  not  dedicated  to  the 
public  by  leaving  it  blank  when  platting 
into  lots,  streets,  and  parks,  the  land  on  top 
of  the  bluff,  and  stating  in  the  plat  that 
the  lake-front  lots  extend  only  to  the  top 
of  the  bluff.  Poole  v.  Lake  Forest,  23:  809^ 
87  N.  E.  320,  238  111.  305.  (Annotated) 

21.  Designation  by  the  owner  thereof  of 
a  block  of  land  as  a  "square,"  on  a  record- 
ed town  plat,  sufficiently  indicates  an  in- 
tention to  dedicate  the  block  to  a  public 
use,  but  is  insufficient  to  designate  any 
particular  use  to  which  it  is  to  be  devoted. 
Daughters  v.  Board  of  Conunissioners,  27: 
938,  106  Pac.  297,  81  Kan.  548. 

Extent  of  dedication. 

22.  The  making  and  filing  of  a  plat  lay- 
ing out  a  town  site  upon  a  desert  entry  will 
not  dedicate  to  the  public  the  water  used 
upon  the  streets  and  alleys  of  the  town  site, 
under  a  water  right  subsequently  located 
and  acquired.  Hailey  v.  Kiley,  17:  86,  95 
Pac.  686,  14  Idaho,  481. 

23.  Evidence  that  a  company  owning  a 
tract  of  land  which  it  desired  to  develop  as 
a  residential  district  purchased  a  strip  of 
land  80  feet  wide,  the  conformation  of 
which  was  such  as  to  render  it  improbable, 
if  not  impossible,  that  it  would  be  used  for 
building  purposes,  stretching  across  a  deep 
ravine  adjacent  to  their  property,  which 
strip  connected  such  property  with  the  end 
of  a  public  street;  that  they  constructed 
across  the  ravine  upon  such  strip  a  bridge 
connecting  such  public  street  with  a  road 
laid  out  by  them;  that  they  filed  a  plan 
conveying  to  the  township  lands  shown 
thereon  as  highways,  including  the  80-foot 
strip  referred  to;  and  that  the  bridge,  hav- 
ing fallen  into  disrepair,  was  rebuilt  by  the 
public  authorities,  is  sufficient  to  show  a 
dedication  of  such  strip  as  a  public  high- 
way for  its  full  width,  and  not  merely  for 
the  width  of  the  bridge.  Gloster  v.  Toronto 
Electric  Light  Co.  1  B.  R.  C.  780,  38  Can. 
S.  C.  27. 

Selling   lots   with   respect   to   plat   or 

map. 
Conclusiveness  of  judgment  as  to  rights  of 

purchasers,  see  Judgment,  204,  205. 

24.  The  filing  of  a  map  of  a  subdivision 
of  a  tract  of  land,  with  spaces  marked 
thereon  for  streets,  followed  by  the  sale  of 
lots  with  respect  thereto,  is  an  offer  to  ded- 
icate the  streets  to  public  use,  which  can- 
not be  withdrawn  after  they  have  been 
accepted  by  ordinance,  and  it  is  immaterial 
that  no  names  are  attached  to  the  spaces 
shown  on  the  plat,  or  that  they  are  cut  off 
at  one  end  by  dotted  lines.  Los  Angeles  v. 
McCollum,  23:  378,  103  Pac.  914,  156  Cal. 
148. 

25.  A  dedication  of  land  for  a  park  is  ef- 
fected by  the  exhibition  of  a  plat  on  which 
the  space  is  designated  as  a  park  when  sell- 
ing lots  bordering  thereon,  followed  by  per- 
mitting the  public  to  use  the  tract  generally 
as  it  pleases.  Northport  Wesleyan  Grove 
Campmeeting  Asso.  v.  Andrews,  20:  976,  71 
Atl.  1027,  104  Me.  342. 

20.  The  right  to  open  streets  shown  up- 


DEIDCATION,  I.  c,  II. 


899 


on  a  plat  exhibited  to  purchasers  of  lots, 
but  not  referred  to  in  the  deed,  does  not 
exist  against  one  who  purchases  the  platted 
property  before  the  streets  were  marked 
on  the  ground,  without  notice  of  the  plat, 
actual  or  constructive.  Green  v.  Miller, 
44:  231,  76  S.  E.  505,  161  N.  C.  24. 

(Annotated) 

27.  The  sale  of  lots  with  reference  to  a 
plat  does  not  dedicate  to  public  use  lands 
shown  on  the  plat  as  a  park,  if  the  lots  sold 
are  not  contiguous  or  adjacent  to  tlie  park. 
Stover  V.  Steffey,  37:  856,  81  Atl.  33,  115 
Md.  524. 

28.  The  purchaser  of  lots  according  to  a 
plat  is  entitled  to  have  the  streets  shown 
on  the  plat  maintained  only  so  far  as  their 
existence  is  material  to  the  enjoyment  of  the 
lots  purchased.  Douglass  v.  Belknap 
Springs  Land  Co.  37:  953,  81  Atl.  1086,  76 
N.  H.  254. 

29.  One  who  upon  purchasing  lots  with 
reference  to  a  plat  is  informed  that  a  por- 
tion of  the  platted  tract  belongs  to  a  stran- 
ger, and  that  he  will  do  what  he  wishes  with 
respect  to  the  streets  on  that  portion,  can- 
not prevent  the  closing  of  such  streets. 
Douglass  v.  Belknap  Springs  Land  Co.  37: 
953,  81  Atl.  1086,  76  ^;.  H.  254. 

30.  One  selling  lots  with  reference  to  a 
plat  made  and  recorded  by  another  is  bound 
to  maintain  the  streets  shown  on  the  plat,  so 
far  as  his  grantee  is  interested  in  them. 
Douglass  V.  Belknap  Springs  Land  Co.  37: 
953,  81  Atl.  1086,  76  N.  H.  254. 

31.  The  existence  of  a  street  shown  on  a 
plat  upon  the  shore  of  a  lake  cannot  be  de- 
feated as  against  claims  of  persons  who  buy 
lots  with  reference  to  the  plat,  by  the  fact 
that  when  the  requisite  number  of  lots  is 
laid  out  according  to  course  and  distance 
no  space  will  be  left  for  the  street.  Doug- 
lass V.  Belknap  Springs  Land  Co.  37:  953, 
81  Atl.  1086,  76  N.  H.  254. 

32.  A  purchaser  of  a  lot  in  a  platted 
tract  on  the  shore  of  a  lake  is  entitled  to 
have  a  street  shown  on  the  plat  to  exist 
along  the  lake  shore  kept  open,  and  it  is 
immaterial  that  by  reason  of  the  configu- 
ration of  the  ground  for  a  portion  or  the 
distance  it  can  be  used  only  as  a  foot  path. 
Douglass  v.  Belknap  Springs  Land  Co.  37: 
953,  81  Atl.  1086,  76  N.  H.  254. 

33.  Where  a  city  plat  is  recorded  in  ap- 
parent conformity  with  the  statute,  but  is 
inoperative  as  to  a  part  of  the  property  in- 
cluded because  the  owner  thereof  does  not 
join  in  the  acknowledgment,  the  execution 
of  a  deed  by  such  owner  in  which  the  tract 
conveyed  is  described  by  reference  to  the 
plat,  there  being  nothing  to  show  a  purpose 
to  disavow  it,  is  such  a  recognition  of  its 
validity  as  will  make  it  binding  u.pon  him. 
Wallace  v.  Cable,  42:587,  127  Pac.  5,  87  Kan. 
835.  (Annotated) 

34.  Conveyance  by  metes  and  bounds  of 
lots  on  a  street  dedicated  by  plat  to  public 
use  but  vacated  by  the  public  before  the 
conveyance  is  made  does  not  carry  title 
to  the  street,  but  the  title  thereto  remains 
in  the  grantor  and  may  be  conveyed  to 
Digest  1-52  L.B.A.(N.S.) 


another.      White   v.   Jefferson,   32:  778,    124 
N.  W.  373,  125  N.  W.  262,  110  Minn.  276. 

(Annotated) 

35.  The  failure  of  occupants  of  property 
included  in  a  town-site  entry  and  their  gran- 
tees to  object  to  the  designation,  on  the 
map  filed  by  the  trustee,  of  a  strip  along 
their  water  front  as  a  public  sidewalk,  or 
to  the  use  of  the  strip  so  designated  and 
the  acceptance  of  deeds  bounded  on  the  side- 
walk, is  sufficient  to  efi'ect  a  dedication  of 
the  strip  to  public  use  so  as  to  cut  off  the 
riparian  rights  of  the  occupants  in  the 
water  beyond  the  strip.  McCloskey  v.  Pa- 
cific Coast  Co.  22:  673,  160  Fed.  794,  87  C. 
C.  A.  568. 

36.  Mere  reference  in  a  deed  to  an  un- 
published, unrecorded  plat  on  which  a  park 
is  shown  as  part  of  the  tract  on  which  the 
property  is  located  does  not  constitute  a 
dedication  of  the  park  to  public  use  where 
none  of  the  land  sold  is  bounded  on  the 
park,  but  ail  is  separated  therefrom  by 
streets.  Canton  Co.  v.  Baltimore,  11:  129, 
66  Atl.  679,  106  Md.  69. 

c.  Who  may  dedicate. 

(See  also   same   heading   in  Digest  L.R.A. 
1-10.) 

37.  The  attempted  dedication  by  a  mort- 
gagor of  a  portion  of  the  mortgaged  prop- 
erty for  a  highway,  without  consent  of  the 
mortgagee,  gives  the  public  no  more  than 
an  equity  against  the  mortgagee  to  have 
the  way  open,  provided  it  does  not  interfere 
with  the  mortgage  security.  Kiernan  v. 
Jersey  City  (N.  J.  Err.  &  App.)  31:  1023, 
78  Atl.  228,  80  N.  J.  L.  272.        (Annotated) 

//.  Acceptance. 

(See  also   same  heading  in  Digest  L.R.A. 
1-10.) 

Acceptance  of  highway  generally,  see  High- 
ways, 9,  10. 
See  also  supra,  24. 

Necessity    of. 

38.  Where  a  city  plat  which  is  recorded 
in  apparent  conformity  with  the  statute  is 
inoperative  as  to  a  part  of  the  property  in- 
cluded because  the  owner  thereof  does  not 
join  in  the  acknowledgment,  the  execution 
of  a  deed  by  such  owner  in  which  the  tract 
conveyed  is  described  by  reference  to  the 
plat,  there  being  nothing  to  show  a  purpose 
to  disavow  it,  is  a  complete  dedication  of 
the  tract  designated  on  the  plat  as  streets 
and  alleys,  irrespective  of  any  acceptance  on 
belialf  of  the  public.  Wallace  v.  Cable,  42: 
587,  127  Pac.  5,  87  Kan.  835. 

39.  The  release  of  a  mortgage  from 
which  land  is  reserved  as  a  public  park,  be- 
fore the  acceptance  on  the  part  of  the  pub- 
lic of  the  dedication  of  the  park,  causes 
whatever  offer  to  dedicate  might  be  con- 
tained in  the  instrument  to  cease.  Canton 
Co.  V.  Baltimore,  11:  129,  66  Atl.  679,  108 
Md.   69. 


900 


DEDlCATIOxN,  111.— DEEDS. 


What  constitutes. 

40.  Acceptance  of  a  dedication  of  a  short 
way  leading  from  a  street  to  the  seashore 
may  be  shown  by  its  use  by  a  compara- 
tively small  number  of  persons  on  foot  dur- 
ing the  summer  season,  if  such  was  the  user 
to  be  anticipated  by  the  dedicator.  Phillips 
V.  Stamford,  22:  1114,  71  Atl.  361,  81  Conn. 
408.  (Annotated) 

41.  An  ordinance  adopting  all  streets 
and  parks  theretofore  offered  to  the  public 
for  dedication  is  sufficient  to  render  spaces 
marked  as  streets  on  a  recorded  plat  pub- 
lic highways.  Los  Angeles  v.  McCollum, 
23:  378,  103  Pac.  914,  156  Cal.  148. 

111.  Revocation;    abandonment; 
reverter. 

(See  also   same  heading   in  Digest  L.R.A. 
■  '       1-70.  J 

Abandonment;  reverter. 

42.  A  plat  of  land  dedicated  to  public 
use  for  burial  purposes  loses  its  character 
as  a  resting  place  for  the  dead  only  when  the 
bodies  interred  there  are  exhumed  and  re- 
moved by  persons  having  authority  to  re- 
move them.  Roundtree  v.  Hutchinson,  27: 
875,  107  Pac.  345,   57  Wash.  414. 

43.  A  coimty  to  which  land  has  been 
dedicated  for  the  location  of  a  courthouse 
cannot  devest  itself  of  the  trust,  and  sur- 
render the  title  by  reconveying  the  property 
to  the  heirs  of  the  grantor.  Gaskins  v. 
Williams,  35:  603,  139  S.  W.  117,  235  Mo. 
563. 

44.  Land  in  a  certain  town  dedicated  to 
the  county  for  courthouse  purposes  reverts 
to  the  owner  when  the  county  seat  is  locat- 
ed in  another  town,  so  that  it  is  impossible 
to  use  the  tract  donated  for  such  pur- 
pose, unless  through  some  unanticipated 
action  of  the  proper  authorities,  the  county 
seat  should  be  subsequently  removed,  since 
the  possibility  of  such  action  is  too  remote 
to  support  the  trust.  Gaskins  v.  Williams, 
35:  603,  139  S.   W.   117,  235  Mo.   563. 

(Annotated) 


DE  DONIS. 

Statute  de  donis,  see  Deeds,  79. 


DEDUCTIONS. 


From  sentence,  see  Criminal  Law,  261-264. 
From  share  of  distributee,  see  Executors 

AND  Administrators,  IV.  c,  3. 
Of     debt     due     insurance     company     from 

amount  paid  on  policy,  see  Insurance, 

800. 
Of  debts  in  assessing  property,  see  Taxes, 

23,  185. 
From  legacies,  see  Wills,  III.  L 
Digest  1-52  I..R.A.(N.S.) 


DEED    POLI- 

See  Covenants  and  Conditions,  105,  118; 
Easemknts,  6. 


DEEDS. 

I.  Form  and  requisites,  1—17. 

a.  In  general;  execution,   1—6. 

b.  Delivery    and    acceptance,    7— 

17. 

1.  In  general,  7—13. 

2.  Delivery    to    third   person, 

14-17. 
II.  Construction;    effect;   validity,    18— 
.99. 
a.  In  general;  construction,   18— 

29. 
6.  Description  of  parties,  30—33. 

c.  Description    of    property    con- 

veyed,   34 — 41. 

d.  What     property     passes,     42— 

63. 

1.  In  general,  42—53. 

2.  Reservations    and    excep- 

tions, 54—63. 

e.  Estate  or  interest  created,  64— 

95. 

1.  In  general,    64—67. 

2.  Life  or  fee,   68-78. 

3.  Estates       tail;       rule       in 

STielley's  case,  79—86. 

4.  Remainders;      vested      or 

contingent  interests ;  re- 
versions ;  limitation 
over,   87—95. 

f.  Revocation;    destruction,    etc., 

96-98. 

g.  Failure  of  consideration,  99. 

Of  trust,  see  Assignment  fob  Creditors; 
Mortgage. 

Of  timber,  see  Contracts,  376;   Timber. 

Of  water  rights,  see  Waters,  II.  j. 

By  incompetent  person,  see  Contracts,  755, 
756,  759. 

By  husband  or  wife  to  third  person,  see 
Husband  and  Wife,  II.  f. 

To  husband,  see  Husband  and  Wife,  102, 
103. 

To  wife,  see  Husband  and  Wife,  100,  105, 
106,  147-151. 

In  escrow,  see  Escrow. 

In  partition,  see  Partition,  III, 

Effect  of  death  on  right  to  disaffirm,  see 
Abatement  and  Re\ival,  6,  7. 

Cancelation  of,  see  Accounting,  4;  Appeal 
and  Error,  1570;  Contracts,  739-742, 
744,  748,  755,  756,  758,  759,  764,  766- 
770;  Equity,  89-93;  Fraxhjulent  Con- 
VHTTANCEs,  11,  12;  Judicial  Sale,  17  j 
Jury,   21;    Pleading,   164. 

Acknowledgment  of,  see  Acknowledgment. 

Alteration  of,  see  Alteration  of  Instru- 
ments, 5;   Evidence,  605,  606. 

Record  of,  see  Records  and  Recording 
Laws,  III. 

Reformation  of,  see  Reformation  of  In- 
struments. 


DEEDS. 


901 


Prematurity  of  action  to  set  aside,  see  Ac- 
tion OK  Suit,  14. 

Condition  precedent  to  suit  to  set  aside,  see 
Action  ob  Sxjit,  15. 

Prematurity  of  action  for  procuring  deed 
by  fraud,  see  Action  ok  Suit,  16. 

Effect  on  adverse  possession  of  deed  to  third 
party  not  the  owner,  see  Adverse  Pos- 
session, 88. 

Foreclosure  of  security  deed  as  equitable 
mortgage,  see  Appeal  and  Error,  682, 
1387;   Limitation  of  Actions,  87. 

Sufficiency  of  record  on  appeal  to  show  ex- 
istence of  church  at  time  of  execution 
of  deed  to  it,  see  Appeal  and  Error, 
154. 

Prejudicial  error  in  admission  of  evidence 
of  recitals  in,  see  Appeal  and  Error, 
1118. 

As  to  assignment  for  creditors,  see  Assign- 
ment FOR  Creditors. 

Question  whether  instrument  is  deed  or 
mortgage,  see  Assignment  for  Cred- 
itors, 2. 

Liability  of  bank  acting  for  patron,  which 
pays  money  to  imposter  for  a  forged 
deed,  see  Banks,  109. 

Intent  to  compromise  doubtful  riglit  shown 
by,  see  Compromise  and  Settlement, 
2. 

Law  governing  obligation  of  covenants  for 
title  in,  see  Conflict  of  Laws,  111. 

Law  governing  agreement  in  deed  that  gran- 
tee will  assume  mortgage  debt,  see  Con- 
flict OF  Laws,  4. 

Conflict  of  laws  as  to  infant's  contract  to 
deed  property,  see  Conflict  of  Laws, 
62,  63. 

Tax  on  transfer  of  property  by  deed  to  take 
effect  at  death  of  grantor,  see  Con- 
stitutional Law,  228. 

Obligation  of  one  accepting  deed  requiring 
him  to  make  payment  to  stranger,  see 
Contracts,  8. 

Necessity  of  written  authority  to  fill  blank 
in,  see  Contracts,  256. 

Effect  of  deed  of  real  estate  to  aid  defective 
description  in  contract  to  convey,  see 
Contracts,  285. 

Purchaser's  duty  to  accept  deed  from  third 
person,  see  Contracts,  377. 

Covenants  in,  see  Covenants  and  Condi- 
tions. 

Effect  of  conveyance  and  reconveyance  of  es- 
tate acquired  by  inheritance  upon  its 
course  of  descent,  see  Descent  and 
Distribution,  7. 

Creation  of  easement  by,  see  Easements, 
II. 

Recovery  in  ejectment  on  strength  of,  see 
Ejectment,  7. 

Loss  of  rights  under,  see  Election  of 
Remedies,  26. 

Estoppel  by,  see  Estoppel,  II.  a. 

Estoppel  by  attesting,  see  Estoppel,  252. 

Estoppel  of  wife  to  claim  right  to  real  es- 
tate under  husband's  deed  to  her,  see 
Estoppel,  211. 

Fraud  in  failing  to  read  to  unlettered  grant- 
or, see  Estoppel,  192. 

Digest  1-52  L.R.A.(N.S.) 


Presumption  and  burden  of  proof  as  to,  see 
Evidence,  558-562,  647. 

Burden  of  proving  that  mortgage  was  not 
merged  in  deed,  see  Evidence,  570. 

Admissibility  in  evidence,  see  Evidence, 
743,  744,  785-789. 

Admissibility  in  evidence  of  certified  copies 
of,  see  Evidence,  729. 

Admissibility,  of  record  of,  see  Evidence, 
754-756. 

Admissibility  of  copy  of  record  of,  see  Evi- 
dence, 756. 

Evidence  as  to  consideration  for,  see  Evi- 
dence, 805,  811,  1006-1015. 

Parol  evidence  as  to  generally,  see  Evi- 
dence, 714,  909-912,  940,  941,  950,  957, 
976,  978. 

Parol  evidence  as  to  consideration  for,  see 
Evidence,  1006-1015. 

Parol  evidence  that  deed  was  intended  as  a 
mortgage,  see  Evidence,  1030-1033. 

Admissibility  of  grantor's  declarations,  see 
Evidence,  X.  f. 

Evidence  in  action  to  set  aside  deed,  see 
Evidence,  1361, 

Evidence  admissible  in  derogation  of  deed, 
see  Evidence,  1387,  1389,  1391. 

Evidence  of  habits  of  grantor,  see  Evidence, 
1519. 

Evidence  of  character  of  grantor,  see  Evi- 
dence, 1547. 

Evidence  of  quit-claim  deed  by  littoral  own- 
er to  show  intention  to  release  littoral 
rights  to  public,  see  Evidence,  1629. 

Sufiiciency  of  evidence  to  impeach,  see  Evi- 
dence, 2257,  2258. 

Weight  of  recitals  in,  see  Evidence,  2261, 
2265. 

Quitclaim  deed  by  heir,  see  Expectancies. 

Fraud  in  securing  signature  to,  see  Fraud 
AND  Deceit,  10. 

Representation  of  unborn  children  by  trus- 
tees of  deed  of  settlement  in  action  to 
determine  construction,  see  Judgment, 
220. 

Deed  on  judicial  sale  of  property,  see  Ju- 
dicial Sales,  II.  b. 

Execution  of,  pending  suit,  see  Lis  Pendens, 
II. 

Merger  of  rights  under  covenant  in,  see 
Merger,  2. 

Agreement  in,  for  assumption  of  mortgage, 
see  Mortgage,  III. 

Giving  of  bond  to  secure  release  of  lien  im- 
posed on  land  by  deed  as  a  novation  of 
the  original  obligation,  see  Novation, 
5. 

Who  may  sue  to  set  aside  deed,  see  Parties, 
24. 

Necessary  party  in  proceeding  to  correct 
sheriff's  deed,  see  Parties,  104. 

Replevin  to  recover  possession  of  title  deed, 
see  Replevin,  15. 

Tax  deeds,  see  Taxes,  III.  f. 

Tax  on  transfer  of  property  by,  see  Taxes, 
297. 

Identity  of  logs  claimed  under  deed,  as  ques- 
tion for  jury,  see  Trial,  606. 

Direction  of  verdict  in  favor  of  grantee, 
see  Trial,  730. 

Creation  of  trust  by,  see  Trusts. 


902 


DEEDS,  I.  a— b,  2. 


Substitute    conveyances,    see    Vendob    and 

PUBCHASKR,   20. 

Kights   of  grantee  of    land   containing  ar- 
tesian wells,  see  Waters,  287. 

/.  Form  and  requisites. 

a.  In  general;  execution. 

(See  also   same   heading   in  Digest  L.R.A. 
1-70.) 

Execution  of  wills,  see  Wills,  I.  b. 

1.  A  written  agreement  reciting  that  a 
named  person  has  "sold  and  transferred  in 
favor  of"  another,  a  certain  tract  of  land, 
and  that  he  would  execute  documents  of  con- 
veyance as  soon  as  a  certain  grant  should 
be  approved,  and  providing  that  the  vendee 
should  go  into  possession,  which  is  signed 
by  both  parties,  but  not  acknowledged  be- 
fore an  officer  entitled  to  take  acknowledg- 
ment of  deeds,  is  an  executory  contract  for 
the  giving  of  a  deed  upon  the  approval  of 
the  grant  mentioned.  De  Bergere  v. 
Chaves,  51 :  50,  93  Pac.   762,  14  N.  M.  352. 

2.  An  undertaking  by  executors  with 
power  to  sell  real  estate,  to  convey  by  good 
and  sufficient  deed,  does  not  require  a  deed 
in  which  all  the  devisees  and  heirs  at  law 
shall  join.  Trogdon  v.  Williams,  10:  867,  56 
S.  E.  865,   144  N.   C.   192. 

3.  A  deed  by  an  heir,  conveying  his  in- 
terest in  the  estate  to  his  mother,  which  is 
executed  on  the  express  condition  that  it 
shall  not  be  effective  until  executed  by  the 
other  heirs,  is  without  effect,  although  de- 
livered, if  not  so  executed.  Haviland  v. 
Haviland,  5:  281,  105  N.  W.  354,  130  Iowa, 
611. 

Witnesses. 

4.  Failure  to  attest  a  deed  as  required 
by  statute  does  not  prevent  the  title  from 
passing.  Eadie  v.  Chambers,  24:  879,  172 
Fed.  73,  96  C.  C.  A.  561. 

Signature. 

5.  That  a  grantor  could  read  does  not 
invalidate  a  signature  to  a  deed,  affixed 
by  another  and  attested  by  his  mark,  if  he 
then  makes  the  necessary  acknowledgment 
certified  by  a  notary  public.  Ford  v.  Pord, 
6:  442,  27  App.  D.  C.  401. 

6.  Where  one  has  a  written  power  of 
attorney  from  another  to  sign  deeds  for  the 
latter,  such  a  deed  which  on  its  face  pur- 
ports to  be  the  indenture  of  the  principal 
made  by  his  attorney  in  fact  therein  desig- 
nated by  name,  may  be  properly  signed  by 
such  attorney  by  his  subscribing  and  af- 
fixing thereto  the  name  of  his  principal 
alone.  Tiger  v.  Button  Land  Co.  41:  805, 
135  N.  W.  368,  91  Neb.  63,  136  N.  W.  46, 
91  Neb.  433.  (Annotated) 

b.  Delivery  and  acceptance. 

1.  In  general. 

(See  also   same   heading  in  Digest   L.R.A. 
1-70.) 

EfTect  of  delivery  baek  to  grantor  by  gran- 
tee, see  infra,  97. 
Digest  1-52  I,.R.A.(N.S.) 


Power  of  equity  to  compel  reconveyance  of 
land  where  deeds  have  been  delivered, 
see  Equity,  25. 

Presumption  of  delivery,  see  Evidence,  562, 
563. 

Presumption  of  acceptance,  see  Evidence, 
563-566. 

Parol  proof  of  delivery  upon  condition,  see 
Evidence,  1023,  1024. 

Sufficiency  of  evidence  of  delivery,  see  Evi- 
dence, 2284. 

7.  The  signing  of  a  deed  by  an  heir  will 
not  prevent  the  attachment  of  his  interest 
in  the  estate  if  the  deed  has  not  been  signed 
by  the  remaining  heirs  whose  signatures 
are  to  be  secured  before  delivery  of  the 
deed.  Sheehy  v.  Scott,  4:  365,  104  N.  W. 
1139,  128  Iowa,  551. 

8.  A  deed  for  land  which,  with  the  con- 
sent of  the  grantors,  has  been  altered 
after  delivery  so  as  to  make  it  describe 
a  larger  boundary,  to  be  effective  as  a  deed 
of  the  larger  tract  must  be  redelivered. 
Waldron  v.  Waller,  32:284,  64  S.  E.  964, 
65  W.  Va.  605. 

Necessity;  death  of  grantor. 

9.  No  title  will  pass  by  a  deed  which  is 
not  delivered  by  the  grantor  or  someone 
duly  authorized  by  him.  Horner  v.  Spen- 
cer, 17:  622,  95  Pac.  757,  21  Okla.  1,55. 

10.  A  deed  secured  by  the  grantee  and 
placed  on  record  without  delivery  may  be 
ratified  by  the  grantor  by  treating  the  prop- 
erty as  belonging  to  the  grantee,  and  in- 
ducing him  to  assert  title  to  it  and  incur 
obligations  on  account  of  it,  under  the  be- 
lief that  he  has  the  title,  so  as  to  vest  a  good 
title  in  him.  Phelps  v.  Pratt,  9:  945,  80  N. 
E.  69,  225  111.  85.  (Annotated) 

11.  No  title  passes  by  a  deed  from  a 
man  to  his  wife,  which,  after  its  execution, 
he  places  in  his  money  box  or  drawer,  to 
which  he  carries  the  key,  and  in  which  it 
is  found  after  his  death,  with  nothing  ex- 
cept the  execution  of  the  instrument  to 
show  an  intention  to  vest  title  in  her. 
Butts  V.  Richards,  44:  528,  140  N.  W.  1, 
152  Wis.  318.  (Annotated) 
What  constitutes;  delivery  for  record. 

12.  Delivery  of  a  deed  to  the  grantee, 
with  directions  to  place  it  among  grantor's 
papers,  and,  if  grantor  did  not  recover  from 
his  existing  illness,  to  record  it  after  his 
death,  but,  in  case  of  recovery,  to  destroy  it, 
will  not  pass  title  to  the  grantee.  Phelps 
V.  Pratt,  9:945,  80  N.  E.  69,  225  III.  85. 

13.  No  sufficient  delivery  of  a  deed  is 
effected  by  placing  it  in  the  hands  of  the 
scrivener  or  county  official  for  safe-keeping 
with  directions  to  place  it  on  record  upon 
death  of  the  grantor.  Renehan  v.  McAvoy, 
38:  941,  81  Atl.  586,  116  Md.  356. 

(Annotated) 

2.  Delivery  to  third  person. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

In  escrow,  see  EscBOW. 


DEEDS,  II.  a. 


903 


Passing  of  title  to  wife  by  delivery  of  deed 
to  husband,  see  Husband  and  Wife, 
54. 

See  also  infra,  22,  23. 

14.  Tlie  delivery  of  a  warranty  deed  ex- 
ecuted by  the  owner  of  land  and  placed,  be- 
yond recall,  in  the  hands  of  a  third  person, 
to  be  delivered  at  his  death,  if  otherwise 
sufficient,  will  not  be  held  ineffectual,  at 
the  instance  of  the  heirs  of  the  grantor, 
merely  because  the  instructions  given  to  the 
■custodian   included  a  direction  to  hold  the 

instrument  until  the  grantee  had  performed 
certain  conditions,  all  of  which  were  capable 
of  performance  within  the  lifetime  of  the 
grantor.  Nolan  v.  Otney,  9:  317,  89  Pac. 
OyO,  75  Kan.  311,  (Annotated) 

15.  The  manual  deposit  of  a  deed  with  a 
third  party  to  receive  and  hold  for  the  gran- 
tee, with  intent  thereby  to  give  it  effect  as  a 
•conveyance  and  to  place  it  beyond  the  cus- 
tody and  control  of  the  grantors,  with  a  de- 
clared or  manifest  purpose  of  making  a 
present  transfer  of  title,  is  a  suflicient  de- 
livery. Harmon  v.  Bower,  17:  502,  96  Pac. 
61,  78  Kan.  135. 

16.  An  instrument  in  the  form  of  a  deed, 
■executed  and  delivered  to  a  custodian  to 
he  delivered  to  the  grantee  after  the  death 
of  the  grantor,  is  inoperative  as  a  deed. 
Noble  V.  Tipton,  3:645,  76  N.  E.  151,  219 
111.  182. 

Relation    back. 

17.  A  deed  delivered  to  a  stranger  with 
the  intent  to  pass  title  to  the  grantee,  with 
directions  to  deliver  it  to  him  at  the  grant- 
or's death,  upon  the  second  delivery  relates 
back  and  passes  the  title  as  of  the  date 
of  the  first  delivery.  Grilley  v.  Atkins,  4: 
-816,  62  Atl.  337,  78  Conn.  380. 

J/i.  Construction;  effect;  validity. 

a.  In  general;  construction. 

(See  also  same  heading  in  Digest  L.R.A 
1-10.) 

As  color  of  title,  see  Adverse  Possession, 
59-63,  91. 

•Construction  of  conveyance  of  timber,  see 
Contracts,  376. 

Validity  of  deed  by  parents  to  avoid  prose- 
cution of  child,  see  Contracts,  493, 

In  consideration  that  grantee  will  not  pro- 
test against  application  for  patent  for 
government   land,   see  Contracts,  601. 

Covenants  in,  generally,  see  Covenants 
AND  Conditions. 

Distinction  between  covenant  and  condition, 
see  Covenants  and  Conditions,  4-10. 

Upholding  deed  otherwise  ineffective,  as  a 
covenant  to  stand  seised  to  uses,  see 
Covenants  and  Conditions,  20. 

Procured  by  duress,  see  Duress,  8,  12,  13; 
Trial,  312, 

^toppel  by,  see  Estoppel,  II.  a. 

Evidence  as  to  mental  incompetency  of  per- 
son executing  deed  while  ill,  see  Evi- 
dence,   1594. 

Digest  1-52  KR.A.(N.S.) 


Opinion  evidence  as  to  capacity  to  make 
deed,  see  Evidence,  VII.  e. 

Deed  as  mortgage,  see  Assignment  for 
Creditors,  2;  Evidence,  1030-1033, 
4343;  Mortgage,  13-15. 

Parol  evidence  to  show  that  deed  was  in- 
tended to  'be  a  will,  see  Evidence,  978. 

Right  to  avoid  because  of  false  impression 
induced  by  fraud  as  to  contents  or 
character  of  paper  signed,  see  Forgery, 
8. 

Fraudulent  conveyances,  see  Fraudulent 
Conveyances. 

By  incompetent  person,  see  Incompetent 
Persons,  10-15. 

Delay  of  suit  to  set  aside,  see  Limitation 
of  Actions,  29,  30. 

Presumption  of  validity  of  deed  to  pur- 
chaser at  foreclosure  sale,  see  Mort- 
gage, 130. 

Instruction  as  to  undue  influence  in  secur- 
ing execution  of,  see  Trial,  1024. 

Competency  of  witness  as  to  undue  influence, 
see  Witnesses,  53. 

Distinction  between  deed  and  will,  see 
Wills,   I.   a,  2. 

See  also  Contracts,  369. 

18.  A  property  owner  free  from  undue 
influence,  of  sufficient  mental  capacity  to 
convey  property,  has  the  right  to  decide  for 
himself  whether  a  deed  made  by  him  is  rea- 
sonable. Coblentz  v.  Putifer,  42:298,  125 
Pac.  30,  87  Kan.  719. 

19.  One  who  signs,  seals,  and  delivers  a 
deed  is  bound  as  a  grantor,  although  not 
named  therein,  and  the  deed  is  operative 
as  a  conveyance  of  his  estate.  Sterling  v. 
Park,  13:  298,  58  S,  E.  828,  129  Ga.  309. 

( Annotated ) 

20.  The  unauthorized  alteration  of  a 
deed  by  the  grantee  so  as  to  make  it  de- 
scribe land  not  conveyed  thereby  does  not 
effect  its  operation  as  an  executed  con- 
tract, or  disturb  the  title  vested  by  it, 
but  the  grantee  is  thereby  deprived  of  all 
future  benefits  of  an  executory  nature  or 
obligation  which  he  might  have  derived 
thereunder.  Waldron  v.  Waller,  32:284,  64 
S.   E.   964,  65   W.   Va.   605.        (Annotated) 

21.  A  sentence  to  the  penitentiary  for  a 
term  of  years  does  not  make  void  a  convey- 
ance duly  executed  by  the  convict  before 
he  is  imprisoned  under  the  sentence,  and 
while  execution  of  the  judgment  of  convic- 
tion is  stayed  by  proceedings  upon  appeal  to 
the  supreme  court.  Harmon  v.  Bower,  17: 
502,  96  Pac.  51,  78  Kan.  135. 

Time  of  taking  efiect. 

22.  A  provision  in  a  warranty  deed,  that 
it  shall  not  take  effect  until  the  death  of  the 
grantor,  will,  in  the  absence  of  some  con- 
trolling reason  to  the  contrary,  be  construed 
to  mean  that  the  title  is  to  vest  at  once,  the 
enjoyment  only  being  postponed  until  the 
death  of  the  grantor,  where  the  instrument 
after  execution  is  placed  in  the  hands  of  a 
third  person,  to  be  delivered  to  the  grantee 
on  the  death  of  the  grantor.  Nolan  v.  Ot- 
ney, 9:  317,  89  Pac.  690,  75  Kan.  311. 

23.  A  warranty  deed  conditioned  to  take 
effect    on    the    death    of    the    grantor,    and 


no4 


DEEDS,  II.  b,  c. 


placed  in  escrow  for  delivery  to  the  grantee 
on  the  happening  of  such  event,  will  be 
construed  to  mean  that  the  title  is  to  vest 
at  once,  the  enjoyment  only  being  postponed 
until  the  death  of  the  grantor,  although  it 
contains  a  recital  that  the  grantee  is  to 
care  for  the  grantor  during  the  remainder  of 
his  life.  Nolan  v.  Otney,  9:  317,  89  Pac.  690, 
76  Kan.  311. 
Construction  generally. 

24.  An  instrument  duly  acknowledged 
and  recorded,  and  which  is  in  the  form  of 
a  conveyance  of  a  present  interest  in  land  in 
fee  simple,  with  a  reservation  in  the  haben- 
dum of  a  life  lease  in  favor  of  the  grantor; 
and  which  further  provides  that  the  in- 
strument shall  be  in  full  force  three  days 
after  the  latter's  death, — is  a  warranty  deed 
effectual  to  pass  an  estate  In  fee  to  the 
grantee,  subject  to  a  life  estate  in  the  grant- 
or, and  is  not  a  will.  Pentico  v.  Hays, 
9:  224,  88  Pac.  738,  75  Kan.  76. 

25.  In  construing  a  deed,  words  which 
are  repugnant  to.  and  irreconcilable  with, 
other  terms  clearly  applicable  to  admitted 
and  established  facts  recited  in  the  deed, 
must  be  rejected,  and  all  other  words  must 
be  given  some  effect.  Clayton  v.  Gilmer 
Countv  Ck)urt,  2:  598,  52  S.  E.  103,  58  W. 
Va.  253. 

26.  In  construing  a  doubtful  description 
in  a  conveyance,  the  court  will  keep  in  mind 
the  position  of  the  contracting  parties,  the 
circumstances  under  which  they  acted,  and 
interpret  the  language  of  the  instrument  in 
the  light  of  these  circumstances.  Aber- 
crombie  v.  Simmons,  i:  806,  81  Pac.  208, 
71  Kan.  538. 

27.  One  who,  in  dealing  with  lots  in  plat- 
ted ground,  refers  to  an  alley  therein,  is 
presumed  to  refer  to  an  alley  included  in  the 
plat;  and  the  implication  is  that  a  public 
alley  was  intended.  Talbert  v.  Mason,  14: 
878,  113  N.  W.  918,  136  Iowa,  373. 

28.  A  clause  in  a  deed  to  one  and  his 
heirs  and  assigns,  giving  a  privilege  to  take 
water  from  a  spring  on  the  grantor's  re- 
maining land  as  occasion  may  require,  in- 
ures to  the  benefit  of  the  assigns.  Cram 
V.  Chase,  43:  824,  85  Atl.  642,  35  R.  I.  98. 

29.  Deeds  conveying  coal  witli  rights  of 
removal  should  be  construed  in  the  same 
way  as  other  written  instruments,  and  the 
intention  of  the  parties  as  manifest  by  the 
language  used  in  the  deed  itself  should  gov- 
ern. OrifTin  v.  Fairmont  Coal  Co.  2:  11 15, 
53  S.  E.  24,  59  W.  Va.  480. 

b.  Description  of  parties, 

(See  also   same  heading  in  Digest   L.R.A. 
1-10.) 

80.  Naming  as  grantee  in  a  deed  of  real 
estate  a  partnership  the  members  of  which 
have  died,  but  the  name  of  which  has  been 
perpetuated,  and  the  property  kept  together 
by  consent  of  all  parties  interested,  after 
a  sale  of  the  business  to  strangers,  for  the 
purpose  of  collecting  the  accounts  and  set- 
tling up  the  partnership  affairs,  does  not 
Digest   1-52  I<.R.A.(N.S.) 


render    the    conveyance    void.      Walker    v. 
Miller,  i:,  157,  52  S.  E.  125,  139  N.  C.  448. 

(Annotated) 
Necessity    of    nsing    ^^ord    "heirs"    op- 
equivalent. 

31.  A  grant  to  a  trustee,  without  the  use 
of  the  word  "heirs,"  will  pass  a  fee  if  the 
duties  of  the  trust  require  him  to  posses* 
the  fee,  and  it  is  the  clear  intention  of  the 
grantor  that  he  shall  do  so.  Smith  v.  Proc- 
tor, 2:  172,  51  S.  E.  889,  139  N.  C.  314. 

(Annotated) 
Deed  to  "heirs." 

32.  A  grant  to  the  "heirs"  of  a  living 
person  will  be  construed  as  having  meant 
children,  and  upheld,  if  such  plainly  ap- 
pears to  have  been  the  intention  of  the 
grantor.  Roberson  v.  Wampler,  i:  318,  51 
S.    E.    835,    104    Va.    380.  (Annotated) 

33.  A  mere  restraint  on  alienation  is  not 
sufficient  to  cause  the  word  "heirs"  in  a 
grant  to  one  and  his  heirs  to  be  construed 
as  meaning  "children,"  so  as  to  limit  the 
interest  of  the  first  taker  to  a  life  estate. 
Hauser  v.  St.  Louis,  28:  426,  170  Fed.  906, 
96  C.  C.  A.  82. 

c.  Description  of  property  conveyed. 

(See  also   same   heading  in  Digest  L.R.A, 
1-70.) 

Mistake  in  description  of  property  devised, 

see  Wills,  194-197. 
See  also  Grant. 

34.  A  deed  conveying  part  of  a  lot  lying 
west  of  the  boundaries  of  a  railroad  is  prop- 
erly construed  to  mean  that  part  of  the  lot 
outside  and  west  of  the  right  of  way.  Illi- 
nois C.  R.  Co.  V.  Hasenwinkle,  15:129,  83  N. 
E.  815,  232  111.  224. 

35.  A  grant  of  a  certain  quantity  of 
land,  to  be  taken  from  a  larger  tract,  with 
no  other  description  than  that  it  shall  lie 
on  both  sides  of  a  highway,  is  void  for  In- 
definiteness.  Smith  v.  Proctor,  2:  172,  51 
S.  E.  889,   139  N.  C.  314. 

36.  A  grant  of  a  known  tract  of  land 
by  name  is  not  void  because  the  quantity  is 
erroneously  stated  at  an  amount  much 
below  what  the  tract  actually  contains. 
Smith  v.  Proctor.  2:  172,  51  S.  E.  889,  139" 
N.  C.  314. 

37.  A  deed  to  a  railroad  company  de- 
scribing the  land  conveyed  as  a  certain  part 
of  a  quarter  section  "lying  within  50  feet 
of  the  main  track  of  the  railroad"  is  not 
void  for  indefiniteness  in  the  description, 
where,  at  the  time  of  its  execution,  the  line- 
of  the  road  had  been  surveyed  and  staked 
out,  and  within  a  few  days  thereafter  a  map 
and  profile  of  the  railroad  was  made  by  the 
company  and  subsequently  filed,  although- 
at  the  time  of  its  execution  no  part  of  the 
railroad  had  been  built.  Abercrombie  v. 
Simmons,  1:  806,  81  Pac.  208,  71  Kan.  538. 

38.  If  the  description  in  a  deed  by  quan- 
tity, location,  and  ownership,  viewed  in  the- 
light  of  admissible  extraneous  evidence,, 
makes  clear  the  intent  of  the  grantor  to  con- 
vey only  the  land  so  described,  the  instru- 


DEEDS,  II.  d,  1. 


905 


(ment  is  not  void  for  uncertainty,  although 
the  other  terms  of  the  description  are  e(iuiv- 
•ocal  and  uncertain  as  to  the  identity  of  the 
land;  and  it  will  be  given  effect  according 
to  the  manifest  intent  as  gathered  from  the 
-whole  instrument.  Barbour  v.  Tompkins, 
^:  715,  52  S.  E.  707,  58  W.  Va.  572. 

39.  A  deed  of  trust  for  benefit  of  credit- 
•ors,    of    "all    and    singular,    the    real    and 

personal  estate"  and  "all  other  property,  of 
every  nature,  kind,  and  description,  where- 
soever situate,"  of  the  grantors,  signed  by 
a  man  and  wife,  is  sulTicient  to  identify 
with  reasonable  certainty,  as  required  by 
statute,  a  vested  remainder  belonging  to 
^he  wife  under  a  will.  Roberts  v.  Roberts, 
i:  782,  62  Atl.  161,  102  Md.  131. 

40.  A  deed  describing  the  premises  by 
reference  to  lot  number  as  laid  down  on  a 
map  made  and  filed  by  the  grantor,  and  by 
its  location  on  the  southeast  shore  of  an  is- 
land in  a  river,  adding  the  words,  "The  lot 
126  feet  front  and  68  feet  deep,  supposed  to 

■<;ontain  60  by  100  feet,  the  same  more  or 
less,"  carries  the  title  to  the  entire  width  of 
a  boulevard  50  feet  wide,  shown  upon  such 
map,  extending  to  the  water's  edge,  along 
the  southerly  shore  of  the  island  and  inter- 
vening between  the  lot  in  question  and  the 
river,  with  the  riparian  rights  attaching 
thereto  the  description  by  dimensions  being 
-ambiguous,  if  not  meaningless,  and  there  be- 
ing nothing  to  rebut  the  presumption  that 
the  grantor  did  not  intend  to  retain  the  fee 
of  the  soil  in  the  boulevard.  Johnson  v. 
•Grenell,  13:  551,  81  N.  E.  161,  188  N.  Y.  407. 

(Annotated) 

41.  Where  a  conveyance  of  land  describes 
it  as  "situate  on  the  seashore  at  [a  certain 
place]  and  measuring  in  front  thereto  93 
yards  or  thereabouts,  and  running  in  rear 
•or  depth  backwards  on  the  north  and  south 
sides  thereof  respectively  77  yards  or  there- 
abouts, and  containing  in  the  whole  7,161 
superficial  yards  or  thereabouts,  be  the  said 
several  said  dimensions  and  admeasure- 
ments respectively  a  little  more  or  less, 
which  same  piece  of  land  is  bounded."'  [in 
manner  described]  and  is  stated  to  be  more 
particularly  delineated  in  an  accompanying 
plan,  the  dimensions  are  an  essential  part 
of  the  description,  and  not  a  cumulative 
description  in  a  case  in  which  there  is  in 
"the  first  place  a  sufficient  certainty  and 
•demonstration.  Per  Vaughan  Williams,  L. 
J.  in  Mellor  v.  Walmeslcy,  4  B.  E.  C.  728, 
[1905]  2  Ch.  164.  Also  Reported  in  74 
L.   J.   Ch.   N.    S.   475,   53   Week.   Rep.    581, 

•flS  L.  T.  N.  S.  574,  21  Times  L.  R.  591. 

d.  What  property  passes. 

1.  In  general. 

'(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

"By  deed  of  trust  for  creditors,  see  Assign- 
ments FOR  Creditors,  11. 

Effect  of  covenants  in  deeds,  see  Covenants 
AND  Conditions. 

T>igest   1-52  I,.R,A.(N.S.) 


Right  of  purchaser  by  deed,  map,  or  plat 
showing  dedication,  see  Dedication, 
24-36. 

Effect  of  deed  on  wife's  right  of  dower,  see 
DowEH,  17,  19,  31-33. 

Creation  of  easement  by,  see  Easements, 
II.  c. 

Extinguishment  of  easement  by,  see  Ease- 
ments, V. 

Estoppel  by,   see  EsTorPEL,  II.  a. 

Estoppel  to  rely  on  after-acquired  title,  see 
Estoppel,  36,  37. 

Estoppel  to  claim  after-acquired  interest, 
see  Estoppel,  36,  37. 

Presumption  as  to  land  conveyed,  see  Evi- 
dence,  618,  619. 

Estates  by  entirety  created  by,  see  Hus- 
band AND  Wife,  66,  67. 

Effect  of  deed  absolute  on  its  face  but  in- 
tended as  a  mortgage,  to  convey  the 
legal  title,  see  Mortgage,  15. 

What  passes  by  grant  of  public  lands,  see 
Public  Lands,  1. 

Right  of  railroad  company  to  take  oil  from 
land  conveyed  for  right  of  way,  see 
Railroads,  28. 

Granting  land  to  trustee  for  use  of  third 
person,  see  Trusts,  81. 

Passing  of  crops  growing  on  land,  under 
executory  contract  for  sale  of  the  land, 
see  Vendor  and  Purchaser,  19. 

Effect  of  quit-claim  deed,  see  Vendor  and 
Purchaser,  95-103. 

What  passes  under  grant  by  government 
of  land  bordering  on  navigable  stream, 
see  Waters,  90-96. 

What  passes  by  will,  see  Wills,  III.  e. 

Rights  of  purchasers,  generally,  see  Vendor 
AND  Purchaser. 

42.  One  who  grants  a  thing  is  deemed, 
also,  to  grant  that  within  his  ownership, 
without  which  the  grant  itself  would  be  of 
no  effect;  but  this  rule  applies  only  to  such 
things  as  are  incident  to  the  grant  and  di- 
rectly necessary  to  the  enjoyment  of  the 
thing  granted.  Muscogee  Mfg.  Co.  v.  Eagle 
&  Phenix  Mills,  7:  1139,  54  S.  E.  1028,  126 
Ga.    210. 

43.  No  estate  is  granted  by  a  clause  in 
a  deed  which,  after  granting  a  life  estate, 
declares  that  it  is  the  purpose  of  the  grant- 
or, by  this  deed,  that,  after  the  death  of  the 
life  tenant,  "said  described  lands  shall  be- 
come and  be  the  property  of"  an  institution 
named.  McGarrigle  v.  Roman  Catholic 
Orphan  Asylum,  i:  315,  79  Pac.  447,  145 
Cal.  694.  (Annotated) 

44.  A  deed  of  trust  signed  by  a  man  and 
his  wife,  conveying,  all  and  singular,  the 
real  and  personal  estate,  and  all  other  prop- 
erty of  every  nature,  kind,  and  description, 
"of  us,"  is  not  limited  to  their  joint  es- 
tates, but  will  convey  her  separate  property. 
Roberts  v.  Roberts,  i:  782,  62  Atl.  161,  102 
Md.  131. 

45.  Deeds  conveying  rights  of  flowage,  al- 
though absolute  in  form,  do  not  convey  the 
right  to  flow  according  to  their  strict  letter 
when  there  is  no  use  for  the  water  and  when 
the  flowage  would  be  detrimental  to  the  ser- 
vient estate,  since  the  right  conveyed  is  onlj' 


906 


DEEDS,  II.  d,  2. 


an  unlimited  reasonable  use  of  the  privilege.  < 
Chapman  v.  Newmarket  Mfg.  Co.  15:  292, 
68   Atl.   868,   74   N.   li.   424.        (Annotated) 

46.  A  quitclaim  deed  by  the  owner  of  a 
mine,  of  all  land  lying  east  of  his  "patented 
mining  ground,"  does  not  carry  absolute 
title  to  all  land  east  of  the  boundary  line, 
so  as  to  give  the  grantee  the  right  to  min- 
erals beneath  the  surface,  but  carries  merely 
the  land  east  of  the  entire  claim,  including 
the  rights  which  the  patentee  has,  to  follow 
the  dip  of  the  vein.  Central  Eureka  Min. 
Co.  V.  East  Central  Eureka  Min.  Co.  9:  940, 
79  Pac.  834,  146  Cal.  147. 

47.  A  conveyance  of  real  estate  does  not 
carry  a  right  to  damages  for  a  right  of  way 
which  had  been  appropriated  over  the  land 
prior  to  the  conveyance,  although  they  are 
not  assessed  until  after  the  conveyance. 
Ft.  Wavne  &  S.  W,  Traction  Co.  v.  Ft. 
Wavne  &  W.  R.  Co.  16:  537,  83  N.  E.  665, 
I70'lnd.  49. 

48.  A  warranty  deed  of  a  farm  and  its 
appurtenances  does  not  carry  the  right  of 
a  grantor  as  a  member  of  a  telephone 
company,  each  member  of  which  had  a 
right  to  place  a  telephone  in  his  house,  and 
to  give  the  purchaser  of  his  farm  the  first 
chance  to  purchase  his  interest,  after  which 
the  company'  itself  should  have  the  right. 
Cantril  Teleph.  Co.  v.  Fisher,  42:1021,  138 
N.  W,  436,  157  Iowa,  203.  (Annotated) 
Severed   crops. 

49.  Crops  severed  from  the  soil  do  not 
pass  with  a  conveyance  of  real  estate. 
Speicher  v.  Lacv,  35:  1066,  115  Pac.  271, 
28  Okla.  541. 

Appurtenances. 

Easements  as  appurtenant,  see  Easements, 

II.  c. 
In  sale  of  personal  property,  see  Sale,  7. 

50.  A  conveyance  of  real  estate  carries 
with  it  an  rppurtenant  right  of  way.  C-^rea 
v.  Higuera,  17:  1018,  95  Pac.  882,  153  Cal. 
451. 

51.  Land  cannot  pass  as  appurtenant  to 
land.  Moss  v.  Chappell,  11:  398,  54  S.  E. 
968,  126  Oa.  196. 

52.  A  grant  of  property  will  carry  with 
it  actual  existing  appurtenances,  but  will 
not  create  any  appurtenances.  Muscogee 
Mfg.  Co.  V.  Eagle  &  Phenix  Mills,  7:  11 39, 
54  S.  E.  1028,  126  Ga.  210. 

53.  If  the  right  to  use  power  from  a  dam 
has  been  acquired  and  affixed  to  a  particu- 
lar mill  or  parcel  of  real  estate,  it  will  pass 
by  a  grant  of  the  property,  with  appurte- 
nances; but,  if  the  power  was  not  an  ap- 
purtenance of  the  property  at  the  time  of 
the  grant,  it  will  not  pass  as  such,  although 
the  grantor  had  a  right  to  make  use  of  the 
power  at  that  time.  Muscogee  Mfg.  Co.  v. 
Eagle  &  Phenix  Mills,  7:  1139,  54  S..E.  1028, 
126  Ga.  210. 

2.  Reservations  and  exceptions. 

(Bee  also   same  heading  in  Digest  L.R.A 
1-10.) 

Implied  reservation  of  burial  rights  in  land 

conveyed,  see  Cemetkrtes,  4. 
Digest  1-52  I..R.A.(N.S.) 


Oral  reservation  of  growing  crops,  see  Con- 
tracts, 270,  272;   r:viDKNCE,  940. 

Restrictive  covenants  in  deed,  see  Cove- 
nants AND  Conditions,  II.  d. 

Creation  of  easement  bv,  see  Easements, 
5,  6,  36,  40,  41,  43,  wO,  58.  60,  86. 

Specific  performance  of  provision  in  deed 
for  easement  of  way,  see  SPECiFia 
Pekformance,  34. 

Effect  of  reservation  on  right  to  specific 
performance  of  contract  to  purchase, 
see  Specific  Perf'oemance,  94. 

54.  A  provision  in  a  deed  that  a  pas- 
sageway shall  be  kept  open,  although  not 
valid  as  a  reservation  for  failure  to  use  the 
word  "heirs,"  may  be  enforced  against 
transferees  with  notice  as  a  contract  in 
writing  capable  of  being  specifically  en- 
forced in  equity.  Bailey  v.  Agawam  Nat. 
Bank,  3:  98,  76  N.  E.  449,  190  Mass.  20. 

(Annotated) 

55.  One  purchasing  land  with  notice  of 
a  public  right  of  burial  thereon  takes  sub- 
ject to  such  right,  althougii  no  reservation, 
thereof  is  made  in  his  deed.  Roundtree  v. 
Hutchinson,  27:  875,  107  Pac.  345,  57  Wash, 
414. 

Of  minerals. 

Effect  of  reservation  of  coal,  on  liability 
for  injury  to  surface  support  in  re- 
moving coal,  see  Mines,  43. 

56.  A  purchaser  of  lands  takes  no  in- 
terest in  the  oil  and  gas  therein  where 
prior  owners  made  a  lease  of  the  oil  and 
gas  privilege  and  thereafter  conveyed  the 
lands  by  warranty  deed,  excepting  and  re- 
serving all  rights  and  privileges  secured  to 
them  by  the  lease  and  all  oil  and  gas  privi- 
leges in  and  to  the  premises,  although  their 
grantee  conveyed  by  general  warranty  to 
another  without  any  reservation  or  excep- 
tion, and  even  though  the  oil  and  gas  lease 
is  canceled  by  consent  of  the  parties  there- 
to, where  all  t.  :  conveyances  are  of  record. 
The  cancelation  of  the  lease  does  not  ex- 
tinguish the  rights  of  the  original  owner, 
nor  vest  the  right  to  the  oil  and  gas  in  the 
owner  of  the  lands  at  the  time  of  such 
cancelation.  Moore  v.  Griffin,  4:  477,  83 
Pac.  395,  72  Kan.  164.  (Annotated) 

57.  A  provision  in  a  deed  of  real  estate 
reserving  to  the  grantor  all  the  rights,, 
privileges,  and  benefits  secured  under  an 
oil  and  gas  lease  executed  by  the  grantor* 
with  full  power  and  right  to  renew  or  ex- 
tend, change  or  modify  the  lease  as  fully 
and  to  the  same  extent  as  though  the  deed 
had  not  been  executed,  constitutes  an  ex- 
ception, and  not  a  reservation.  The  title  to 
the  oil  and  gas  in  the  premises  conveyed  re- 
mains in  the  grantors.  Moore  v.  Griffin,  4: 
477,  83  Pac.  395,  72  Kan.  164. 

58.  Where  a  deed  conveys  the  coal  underl 
a  tract  of  land,  together  with  the  right  to 
enter  upon  and  under  said  land,  and  to 
mine,  excavate,  and  remove  all  of  it,  there 
is  no  implied  reservation  in  such  an  instru- 
ment that  the  grantee  must  leave  enough- 
coal  to  support  the  surface  in  its  originaP 


DEEDS,  11.  e,  1,  2. 


907 


position.      GrifEn     v.     Fairmont     Coal     Co. 
a:  1II5,  53  S.  E.  24,  59  W.  Va.  480. 

(Annotated) 
Of   timber. 

Inheritance  of  reservation  by  grantor  of 
right  to  cut  timber,  see  Descent  and 

DlSTBIBTTTION,   28. 

Sufficiency  of  evidence  of  size  of  timber 
within  reservation  in  deed,  see  Evi- 
dence, 2184. 

■Termination  of  reserved  right  to  cut  tim- 
ber, see  TiMBEB,  4,  5,  11,  13,  14. 

59.  Tlie  reservation  in  a  grant  of  real 
estate  of  the  timber  growing  upon  the  prop- 
erty does  not  include  saplings  and  under- 
growth which,  at  the  time  of  the  grant,  are 
not  of  a  size  suitable  to  make  lumber. 
Hicks  V.  Phillips,  47:  878,  142  S.  W.  394, 
146  Ky.  305. 

60.  A  provision  in  a  deed  of  real  estate 
reserving  certain  described  timber  will  be 
construed  as  an  exception,  so  that  the  title 
will  not  pass  to  the  grantee.  Hicks  v. 
Phillips,  47:  878,  142  S.  W.  394,  146  Ky. 
305. 

61.  A  clause  in  a  deed  which  conveys 
land  from  parents  to  a  child  as  an  advance- 
ment, reserving  to  the  father  and  mother 
"the  privileges  of  selling  and  removing  any 
timber  from  said  land  that  they  may  de- 
sire to  sell  or  to  use,  and  also  the  right  of 
way  through  said  lands  to  remove  the 
same,"  does  not  reserve  title  to  the  tim- 
ber, but  creates  only  an  unassignable  li- 
cense. United  States  Coal  &  0.  Co.  v.  Har- 
rison, 47:  870,  76  S.  E.  346,  71  W.  Va.  217. 

(Annotated) 

62.  Under  a  clause  in  a  deed,  reserving 
to  the  grantor  therein  standing  timber  on 
the  land  thereby  conveyed,  using  the  fol- 
lowing terms:  "Said  first  party,  M.  J.  A., 
reserves  and  still  owns  all  timber,"  etc., 
and  requiring  the  same  to  be  removed  from 
the  land  within  a  specified  time,  the  grantor 
does  not  hold  absolute  and  unconditional 
title  to  the  timber  as  reserved,  and  such  of 
it  as  remains  unsevered  at  the  expiration 
of  the  time  limited  is  th.  property  of  the 
owner  of  the  land.  Adkins  v.  Hull",  3:  649, 
52  S.  E.  773,  58  W.  Va.  645.         (Annotated) 

63.  An  exception  in  a  deed  conveying  real 
estate,  of  "a  certain  lot  of  timber"  growing 
on  a  portion  of  the  land  granted,  for  the 
benefit  of  a  stranger  to  the  instrument,  is 
an  exception  of  the  timber  rather  than  of 
the  land  itself,  for  the  benefit  of  the  person 
named  personally,  and  terminates  with  his 
deathj  the  fee  then  being  in  the  grantee  in 
the  deed.  Stone  v.  Stone,  20:  221,  119  N.  W. 
712,  141  Iowa,  438.  (Annotated) 

e.  Estate  or  interest  created. 

1.  In  general. 

(See  also  Real  Property,  I.  a,  vn  Digest 
L.RA.  1-70.) 

Evidence  in  an  action  to  set  aside  a  deed 
as  fraudulently  procured,  see  Evidence, 
2086. 

Disest  1-52  L.R.A.(N.S.) 


Estate    by    entireties,    see    Husband    and 

Wife,  II.  b. 
In  consideration  of  marriage,  see  Husband 

and  Wife,  57. 
Effect   of  deed   of   husband   directly  to  his 

wife  and  attempt  by   her  to   reconvey 

directly    to    him,    see   Husband    and 

Wife,  100. 
Estate  conveyed  by  deed  in  trust  for  mar- 
ried woman,  see  Husband  and  Wui'E, 

114. 
Rights  of  grantee  of  mine,  see  Mines,  33- 

38. 
By  deed  conveying  standing  timber,  see  TlM- 

BEK,  2. 
Estate    or    interest    created    by    will,    see 

Wills,  III.  g. 
See  also  supra,  24;  Descent  and  Distbibu- 

TION,   1. 

64.  The  vesting  of  a  fee  in  the  grantee  of 
real  estate  is  not  prevented  by  the  fact 
that  the  land  was  public  and  Congress  au- 
thorized its  purchase  for  the  purpose  of  a 
public  library,  the  patent,  however,  contain- 
ing no  conditions  or  limitations  upon  the 
character  of  estate  conveyed.  Fordyce  v. 
Woman's  Christian  Nat.  Library  Asso.  7: 
485,  96  S.  W.  155,  79  Ark.  550. 

65.  The  fee  will  pass  to  the  second 
grantee  where,  in  one  deed,  land  is  granted 
to  one  person,  "excepting  and  reserving" 
therefrom  a  strip  of  certain  width,  "to  be 
used  as  a  right  of  way,"  which  strip  is 
granted  to  another,  reserving  the  timber 
thereon  to  the  grantor;  where  it  appears 
that  the  grantor  removed  the  timber  there- 
from, the  second  grantee  paid  the  taxes 
thereon,  and  the  wife  of  the  grantor  re- 
fused to  sign  the  first  deed  until  the  strip 
had  been  conveyed  to  the  second  grantee. 
Pritchard  v.  Lewis,  i :  565,  104  N.  W.  989, 
125  Wis.  604. 

66.  A  fee  does  not  vest  in  a  man  by  a 
grant  to  him  and  his  wife  and  her  heirs, 
under  a  statute  providing  for  the  vesting 
of  a  fee  by  a  grant  without  the  word  "heirs," 
where  the  statute  provides  that  such  shall 
not  be  the  effect  where  it  shall  be  plainly 
intended  by  the  conveyance  or  some  part 
thereof  that  the  grantor  meant  to  convey 
an  estate  of  less  dignity.  Sprinkle  v.  Spain- 
hour,  25:  167,  62  S.  E.  910,  149  N.  C.  223. 
Shifting  use. 

67.  A  grant  to  one,  his  heirs  and  as- 
signs, habendum  to  him  during  the  term  of 
his  natural  life,  remainder  to  such  of  his 
children  as  shall  arrive  at  the  age  of  twen- 
ty-one years,  their  heirs  and  assigns,  cre- 
ates a  fee  in  the  first  taker  to  hold  for  his 
use  during  life  and  then  for  the  use  of  such 
of  his  children  as  shall  attain  majority, 
whether  they  do  so  before  or  after  his  death. 
Simonds  v.  Simonds,  19:  686,  85  N.  E.  860, 
199  Mass.  552. 

2.  Life  or  fee. 

By  lease,  see  Landlord  and  Tenant,  48. 
By  will,  see  Wills,  III.  g,  2. 
See  also  supra,  66. 


908 


DEEDS.  II.  e,  3. 


68.  The  grantee  of  one  whose  title  deed 
shows  he  has  but  a  life  estate  acquires  no 
interest  against  the  remainderman.  Acord 
V.  Beaty;  41:  400,  148  S.  W.  901,  244  Mo. 
126. 

69.  A  fee  will  pass  by  a  deed  from  a  man 
who,  having  received  an  absolute  convey- 
ance of  real  estate  from  his  wife,  recites  in 
the  deed  that  he  is  entitled  to  a  life  estate 
in  the  property  by  right  of  survivorship  un- 
der the  laws  of  the  state,  which  interest  he 
has  agreed  to  sell,  and  grants  to  his  grantee, 
his  heirs  and  assigns,  forever,  all  the  right 
he  has  in  the  property,  to  have  and  to  hold 
the  life  estate  and  interest  which  the  grantor 
has,  and  no  more.  Dickson  v.  Van  Hoose, 
19:  719,  47   So.  718,   157    Ala.  459. 

70.  A  grantor  in  a  deed  conveying  land 
to  a  trustee  for  the  use  and  benefit  of  the 
grantor,  who  is  to  receive  the  net  profits  of 
the  property  on  demand,  and  who  reserves 
the  absolute  and  unlimited  power  of  dis- 
posing of  the  land  in  fee,  which,  if  uncon- 
veyed  upon  the  grantor's  death,  is  to  be 
conveyed  to  his  children  or  their  descend- 
ants, remains  the  owner  at  least  of  an 
equitable  estate  in  fee  simple  in  the  land, 
where,  upon  consideration  of  the  whole 
deed,  it  appears  that  the  intention  to  re- 
serve to  the  grantor  the  absolute  and  un- 
limited power  of  disposition  of  the  land  in 
fee  simple  is  paramount  to  and  intended  to 
prevail  over  any  words  of  the  deed  indicat- 
ing that  a  life  estate  only  in  the  land  was 
reserved  to  the  grantor.  Meyer  v.  Barnett, 
6:  1 191,  56  S.  E.  206,  60  W.  Va.  467. 

(Annotated) 

71.  A  deed  which,  in  consideration  of 
the  love  and  aflfeetion  which  the  grantor 
bears  to  his  daughter  and  her  children,  the 
children  being  then  alive,  grants  property 
to  the  parties  of  the  second  part,  who  are 
described  as  the  daughter  and  her  bodily 
heirs,  conveys  a  life  estate,  to  her  and  the 
remainder  to  her  children,  since  the  words 
"bodily  heirs"  are  synonymous  with  "chil- 
dren." American  Nat.  Bank  v.  Madison, 
38:597,  137  S.  W.  1076,  144  Ky.  152. 
Enlarging  or  reducing  by  otlier  pro- 
visions. 

By  will,  see  Wills,  230-241. 

See  also  Covenants  and  Conditions,  33. 

72.  A  proviso  in  a  deed  after  a  granting 
clause  conveying  a  fee-simple  estate,  which 
attempts  to  dispose  of  the  property  in  case 
the  grantee  dies  without  issue,  is  void  for 
repugnancy.  Carl-Lee  v.  EUsberry,  12:  956, 
101  S.  W.  407,  82  Ark..  209.        (Annotated) 

73.  A  deed  to  one  and  his  heirs,  haben- 
dum to  him  during  life,  and  at  his  death  to 
be  equally  divided  among  his  children,  con- 
veys to  him  only  a  life  estate,  where  by 
statute  the  grantee  would  have  taken  the 
same  estate  without  the  use  of  the  word 
"heirs"  as  with  it,  so  that  it  has  no  par- 
ticular force.  Triplett  v.  Williams,  24:  514, 
63  S.  E.  79,  149  N.  C.  394.  (Annotated) 

74.  Although  the  statute  provides  that 
words  of  inlieritance  are  not  necessary  to 
convey  a  fee,  a  grant  to  a  man  and  his 
wife,  habendum  to  them  for  life,  remainder 
to  another  by  name,  passes  the  fee  to  the 
I»ieest   1-52  I<.R.A.(N.S.) 


latter.    Husted  v.  Rollins,  42:378,  137  N.  W. 
462,  156  Iowa,  546.  (Annotated) 

75.  A  clause  providing  for  the  reverter 
of  land  in  case  the  grantee  dies  without 
bodily  heirs,  in  the  habendum  of  a  deed 
conveying  property  to  the  separate  use  of 
a  married  woman  to  have  and  to  hold  to 
her,  her  heirs  and  assigns,  forever,  is  void, 
and  the  fee  passes  to  the  grantee.  Hughes 
V.  Hammond,  26:  808,  125  S.  W.  144,  136 
Ky.  694. 

76.  A  conveyance  by  one  to  whom  prop- 
erty is  deeded  to  have  and  to  hold  to 
him  and  his  heirs  and  assigns  forever  will 
defeat  a  clause  in  the  habendum  providing 
for  a  reverter  in  case  the  grantee  dies  with- 
out bodily  heirs.  Hughes  v.  Hammond,  26: 
808,  125  S.  W.  144,  136  Ky.  694. 
Qualified,    conditional,    or    defeasible 

fee. 
(See  also  Real  Property,  I.  a,  S,  in  Digest 

L.R.A.  1-10.) 
Creation   of,   by   lease,   see   Landlord   and 

Tenant,  108. 
Creation  of,  by  will,  see  Wills,  242-247. 

77.  If  a  grant  of  a  life  estate  to  one, 
habendum  to  him  for  life  and  the  heirs  of 
his  body  and  their  assigns  in  fee  simple, 
should  not  be  regarded  as  vesting  a  fee  in 
the  first  taker  under  the  rule  in  Shelley's 
Case,  it  conveys  a  conditional  fee  which,  in 
states  where  the  statute  de  donis  is  not  in 
force,  may,  after  the  birth  of  a  child  to 
the  life  tenant,  be  conveyed  by  him  in  fee 
simple.  Kepler  v.  Larson,  7:  1109,  108  N.  W. 
1033,  131  Iowa,  438. 

78.  A  deed  to  a  woman,  habendum  to 
her  in  fee  providing  that  if  she  die  without 
lieirs,  then  to  her  husband,  should  he  be  liv- 
ing; and  in  case  he  is  dead,  then  a  share  to 
vest  in  the  next  legal  heirs  of  the  grantee, 
the  remainder  to  vest  in  the  next  legal 
heirs  of  the  husband,  creates  a  conditional 
fee  in  the  first  taker,  with  an  absolute  fee 
to  her  husband,  should  she  die  without 
heirs;  and  their  deed  will  therefore  convey 
the  whole  estate,  since  the  words  to  "the 
next  legal  heirs"  are  used  as  words  of  in- 
heritance, and  not  of  purchase.  Hamilton 
v.  Sidwell,  29:  961,  115  S.  W.  204,  131  Ky. 
428.  (Annotated) 

3.  Estates  tail;  rule  in  Shelley's  case. 

(See   also   Real  Property,   I.   6,  in  Digest 
L.R.A.  1-70.) 

Provisions  in  will,  see  Wills,  III.  g,  3. 
See  also  supra,  77,  78.  ' 

79.  The  statute  de  donis,  being  contrary 
to  the  spirit  of  its  institutions,  has  never 
been  in  force  in  Iowa.  Kepler  v.  Larson,  7: 
1 109,  108  N.  W.  1033,  131  Iowa,  438. 

80.  A  conveyance  to  a  man  and  wife 
for  life,  remainder  to  the  heirs  of  the  wife, 
vests  the  fee  in  the  wife  subject  to  the  hus- 
band's life  estate.  Cotton  v.  Moseley,  40: 
768,  74  S.  E.  454,  159  N.  C.  1. 

81.  A  conveyance  to  a  man  and  his  wife 
during  their  natural  lives,  and  after  their 
death   to   his   heirs,   vests   the   fee   in   him. 


DEEDS,  II.  e,  4. 


909 


under  the  rule  in  Shelley's  Case,  subject 
to  her  life  estate.  Bails  v.  Davis,  29:  937, 
89  N.  E.  706,  241  111.  536.  (Annotated) 

82.  A  deed  to  one  for  life,  and  at  his 
death  to  his  surviving  heirs,  vests  a  fee 
in  the  lirst  taker,  the  word  "surviving"  not 
being  sufficient  to  prevent  an  application  of 
the  rule  in  Shelley's  Case,  at  least,  where 
the  warranty  runs  to  him  and  to  his  as- 
signs forever.  Price  v.  Griffin,  29:  935,  64 
S.  E.  372,  150  N.  C.  523.  (Annotated) 

83.  A  grant  to  a  trustee,  to  make  title 
to  a  certain  person  for  life,  and,  in  ease  he 
has  issue,  to  make  title  to  his  heir,  will  not 
vest  the  fee  in  the  first  taker,  since  the 
word  "heir"  is  not  intended  to  denote  the 
whole  line  of  succession,  but  is  the  descrip- 
tion of  an  individual  who  shall  be  a  point 
from  which  the  estate  shall  start.  Smith 
v.  Proctor,  2:  172,  51  S.  E.  889,  139  N.  C. 
314. 

84.  A  grant  to  one  of  a  life  estate,  ha- 
bendum to  him  during  his  natural  life  and 
to  the  heirs  of  his  body  and  their  assigns 
in  fee  simple,  conveys  to  him  a  fee  under 
the  rule  in  Shelley's  Case,  notwithstanding 
the  deed  also  provides  that  the  wife  of  the 
life  tenant  shall  have  merely  the  privilege 
of  living  on  the  premises  during  his  life, 
and  neither  the  life  tenant  nor  his  wife 
shall  have  any  power  to  convey,  or  place 
encumbrances  on,  the  property.  Kepler  v. 
Larson,  7:  1109,  108  N.  W.  1033,  131  Iowa, 
438.  (Annotated) 

85.  A  conveyance  in  trust,  to  stand 
seised  to  the  use  and  benefit  of  a  certain 
person  for  life,  and  at  his  death  to  transfer 
the  property  to  such  persons  as  he  shall 
direct,  or,  in  default  of  direction,  to  his 
iieirs  in  fee,  does  not  vest  a  fee  in  the  first 
taker,  under  the  rule  in  Shelley's  Case,  since 
it  is  an  ejcecutory  trust.  Steele  v.  Smith, 
29:  939,  66  S.  E.  200,  84  S.  C.  464. 

(Annotated) 

86.  Although  in  case  of  a  conveyance  in 
trust  for  the  life  of  a  designated  person, 
and  at  his  death  to  convey  the  property  to 
liis  appointees,  or  to  his  heirs  in  case  the 
appointment  is  not  made,  the  statute  would 
execute  the  fee  in  the  heirs  immediately 
upon  the  death  of  the  life  tenant  without 
appointment,  such  estate  could  not  coalesce 
with  that  of  the  first  taker,  so  as  to  vest  the 
fee  in  him.  Steele  v.  Smith,  29:  939,  66  S. 
E.  200,  84  S.  C.  464. 

4.  Remainders;    vested    or    contingent 
interests;  reversions;  limitation  over. 

(Set  ifiso  Real  Property,  I.  c,  in  Digest 
L.R.A.  1-70.) 

Adverse  possession  against  remaindermen  or 
reversioners,  see  Adverse  Possession, 

I-g- 

Vested  remainder  passing  by  deed  of  trust 
for  creditors,  see  Assignment  for 
Creditors,  11. 

Effect  of  deed  by  one  cotenant  after  com- 
mencement of  suit  by  the  other  to 
recover  possession  of  property,  see 
COTENACY,    17. 

Digest  1-52  I..B.A.(N.S.) 


Possibility  of  reverter  under  deed  as  estate 

that    may    descend,    see    Descent   AND 

Distribution,   31. 
Effect   of  deed   to   cause  reverter   of  wife's 

interest,  see  Dower,  19. 
Reversion   to   owner   of   title   to   land   con-* 

demned    for   public   use,    see   Eminent 

Domain,  120. 
Compensation  for  condemnation  of  reversion, 

see  Eminent  Domain,  251. 
As   to    suspension    of    alienation,    see    Per- 

pittuixies. 
Reservation    of    lien    in    deed    for    support, 

see  Vendor  and  Purchaser,  65. 
Remainders  under  will,  see  Wills,  III.  g, 

5,  III.  g,  9,  b. 
See  also  supra,  75,  89,  90. 

87.  Under  a  conveyance  to  one  for  life, 
and,  at  her  death,  to  her  children  surviv- 
ing her,  the  remainder  to  the  children  is 
contingent  until  her  death.  Robertson  v. 
Guenther,  25:  887,  89  N.  E.  689,  241  111. 
511.  (Annotated) 

88.  If  a  grant  to  one  for  his  natural  life, 
habendum  to  him  for  life  and  then  to  the 
heirs  of  his  body  and  their  assigns  in  fee, 
should  be  construed  as  vesting  in  him  a  life 
estate  with  remainder  to  the  heirs  of  his 
body,  after  the  birth  of  a  child  to  him  a 
conveyance  by  the  reversioners  would  not 
destroy  the  remainder  and  vest  a  fee  in  the 
life  tenant.  Kepler  v.  Larson,  7:  1109,  ^^^ 
N.  W.  1033,  131  Iowa,  438. 

89.  A  provision  in  a  deed  of  land  to  a 
county,  that  it  is  "to  be  used  as  and  for  a 
county  high  school  ground  and  premises," 
does  not  create  a  condition  subsequent 
which  will  entitle  the  grantor  to  re-enter  if 
the  county  attempts  to  sell  the  property. 
Fitzgerald  v.  Modoc  County,  44:  1229,  129 
Pac.  794,  164  Cal.  493. 

90.  Property  sold  for  a  valuable  con- 
sideration to  school  trustees  authorized  to 
acquire  the  fee,  "to  remain  in  common 
school  grounds  forever,"  without  a  provi- 
sion for  reverter,  does  not  revert  upon 
abandonment  of  its  use  for  school  pur- 
poses and  an  attempt  by  the  trustees  to 
sell  it.  McElroy  v.  Pope,  44:  1220,  154  S. 
W.   903,   153  Ky.   108.  (Annotated) 

91.  A  deed  which  purports  to  convey 
land  absolutely,  though  upon  trust,  foV 
church  purposes,  does  not  create  an  estate 
upon  condition,  where  the  vesting  of  title 
is  not  made  to  depend  upon  conditions 
precedent  or  subsequent,  and  the  language 
used  does  not,  by  its  own  force,  import  a 
condition,  so  as  to  cause  the  beneficial  in- 
terest to  revert  to  the  grantors  upon  con- 
demnation of  the  land  for  public  purposes. 
Deepwater  R.  Co.  v.  Honaker,  27:  388,  66 
S.  E.  104,  66  W.  Va.  136. 

02.  Real  estate  conveyed  for  a  valuable 
consideration,  to  an  organization  incor- 
porated for  social  and  benevolent  purposes, 
does  not  revert  to  the  grantor  upon  dissolu- 
tion of  the  corporation.  McAlhany  v.  Mur- 
ray, 35:  895,  71  S.  E.  1025,  89  S.  C.  440. 

( Annotated ) 

93.  A  quitclaim  deed  of  a  tract  of  land 
will   not   carry   the   right   to   reverter   of   a 


910 


DEEDS,  II.  f— DEFAMATION. 


small  parcel  of  it  which  had  been  granted 
in  fee  to  a  church  with  the  proviso  that  it 
was  to  revert  to  the  grantor  when  it  ceased 
to  be  used  as  a  church.  North  v.  Graham, 
^i8:  624,  85  N.  E.  267,  235  III.  178. 

94.  The  rule  that  a  limitation,  if  it  can 
so  operate,  is  to  be  construed  as  a  remainder, 
and  not  as  an  executory  devise,  even  if  ap- 
plicable to  springing  and  shifting  uses,  will 
not  be  applied  if  the  effect  will  be  to  thwart 
the  intent  of  the  maker  and  defeat  the  terms 
of  the  instrument.  Simonds  v.  Simonds,  19: 
686,  85  N.  E.  860,  199  Mass.  552. 

95.  An  instrument  which  is  in  form  a 
general  warranty  deed,  conveying  a  strip 
of  land  to  a  railroad  company  for  a  right 
of  way  for  a  railroad,  will  not  vest  an  ab- 
solute title  in  the  railroad  company;  but 
the  interest  conveyed  is  limited  by  the  use 
for  which  the  land  is  acquired,  and,  when 
that  use  is  abandoned,  the  property  will  re- 
vert to  the  adjoining  owner.  Abercrombie 
v.  Simmons,  1:  806,  81  Pac.  208,  71  Kan. 
538.  (Annotated) 

/.  Revocation;  destruction,  etc. 

(See  also  Deeds,  II.  e,  in  Digest  L.R.A. 
1-70.) 

Abatement,  by  death  of  grantor,  of  right  to 
rescind  deed,  see  Abatement  and  Ee- 
VIVAL,    C,   7. 

Liability  for  costs  on  appeal  in  suit  to  set 
aside  deed,  see  Appeal  and  Error, 
1639. 

Cancelation  of,  generally,  see  Contracts, 
V,  c. 

Jurisdiction  of  equity  to  cancel,  see  Equity, 
89-93. 

Right  to  avoid  because  of  false  impression 
induced  by  fraud  as  to  contents  or 
character  of  paper  signed,  see  For- 
gery, 8. 

Avoidance  of  deed  by  incompetent  persons, 
see  Incompetent  .Persons,  14. 

Disaffirmance  of  deed  by  infant,  see  In- 
fants, I.  d,  2,  b. 

Sufficiency  of  findings  to  support  judgment 
in  action  to  set  aside  deed,  see  Judg- 
ment, 42. 

Laches  in  bringing  suit  to  set  aside,  see 
Limitation   of   Actions,   30,    31. 

Effect  of  loss  of,  see  Records  and  Record- 
ing Laws,  39. 

Revocation  of  deed  of  trust,  see  Trusts. 
I,  e. 

Rescission  of  deed  or  contract  to  purchase 
land,  see  Vendor  and  Purchaser,  I.  e. 

See  also  supra,  75,  76;    infra,  99. 

96.  A  deed  upon  condition  that  it  is  to 
take  effect  from  and  after  the  death  of  the 
grantor  is  revocable  at  any  time  before 
death,  especially  where  the  grantor  does 
not  intend  to  part  with  the  deed  presently. 
Sappingfleld  v.  King,  8:  1066,  89  Pac.  142, 
49  Or.  102. 

97.  An  equitable  title  in  the  original 
grantor  is  created  by  the  delivery  back  by 
the  grantee  to  him  of  an  unrecorded  deed- 
Digest  1-52  I<.R.A.(N.S.) 


Grossman  v.  Keister,  8:  698,  79  N.  E.  58,  223 
111.  69. 

98.  The  title  to  real  estate  is  not  af- 
fected by  the  destruction  of  the  deed  by  the 
grantor,  after  its  delivery,  without  the 
grantee's  consent.  Matheson  v.  Matheson, 
18:  1167,  117  N.  W.  755,  139  Iowa,  511. 

(Annotated) 

g.  Failure  of  consideration. 

(See  also  Deeds,  II.  f,  in  Digest  L.R.A, 
1-10.) 

As  ground  for  cancelation  of,  see  Con- 
tracts, 766-769;   Equity,   91. 

Parol  evidence  as  to  consideration,  see  Evi- 
dence, 1006-1015. 

Suit  by  executor  to  set  aside,  see  Ex- 
ecutors AND  Administrators,  87. 

In  case  of  deed  given  in  consideration  of 
marriage,  see  Husband  and  Wife,  57. 

Judgment  in  action  to  set  aside  deed  for 
illegality  of  consideration,  see  Judg- 
ment, 42. 

99.  Absence  of  consideration  for  a  deed 
delivered  to  a  stranger  to  be  delivered  to 
the  grantee  at  the  grantor's  death,  will  not 
entitle  the  grantor  to  revoke  the  grant  if 
it  was  accepted  and  complete  before  the  at- 
tempted revocation.  Grilley  v.  Atkinson, 
4:  816,  62  Atl.  337,  78  Conn.  380. 

(Annotated) 


DEER. 

Providing  close  season  for,  see  Game  Laws, 
2-4,  7. 


DE  FACTO. 


Corporation,  see  Corporations,  I,  c. 
Court,  see  Courts,  1. 
Judge,  see  Judges,  3. 
Officers,  see  Officers,  III. 


DEFALCATION. 


Sufficiency  of  proof  of,  see  Evidence,  2287. 

Subrogation  of  surety  on  guardian's  bond 
making  good  a  defalcation  of  guardian, 
see  Subrogation,  35. 

Liability  of  trustee  for  defalcation  by  co- 
trustee, see  Trusts,  123,  124. 

Embezzlement,  see  Embezzlement. 

♦  >» 


DEFAMATION. 

See  Libel  and  Slander. 


DEFAULT— DEFENSES. 


911 


DEFAULT. 

In  payment  of  interest  on  note,  see  Bills 

AND  Notes,  197. 
Judgment    by,    see    Constitutional    Law, 

582;  Judgment,  1-3,  22,  98,  99. 
Notice  of,  to  guarantor,  see  Guaranty,  30. 
Right  to  jury  trial,  on  see  Jury,  16. 
In     payment,     authorizing     foreclosure     of 

mortgage,  see  Mortgage,  VI.  b. 
Tiling  of  pleading  after,  see  Pleading,  I.  p. 


defeasibue:  fee. 


Creation  of,  by  deed,  see  Deeds,  77,  78. 
Devise  of,  see  Wills,  242-247. 


DEFECTIVE  EYESIGHT. 

Contributory  negligence  of  person  afflicted 
with,  see  Highways,  370,  371. 


♦  •» 


DEFENDANTS. 

Parties  defendant,  see  Parties,  II. 
#  * » 

DEFENDANTS'   PliEADINGS. 

See  Pleading,  III. 


DEFENSE  OF  DWELLING. 

Homicide  in,  see  Homicide,  78-82. 


DEFENSES. 


To  action,  generally,  see  Acnow  oe  Suit, 
I.  c. 

To  action  on  account  stated,  see  Accounts, 
11. 

In  admiralty,  see  Admiralty,  6. 

To  charge  of  assault,  see  Assault  and 
Battery,  II. 

To  disbarment  proceedings,  see  Attorneys, 
26-29. 

To  action  to  hold  collecting  bank  liable  for 
money  paid  on  check,  which  it  has  re- 
funded, see  Banks,  154. 

To  liability  of  officers  of  bank  for  conver- 
sion of  funds,  see  Banks,  246. 

To  prosecution  for  bigamy,  see  Bigamy,  2. 

To  action  on  negotiable  paper,  see  Bills 
and  Notes,  III.  c,  VI.  c. 

To  action  on  bond  of  public  officer,  see 
Bonds,  49. 

To  action  for  breach  of  promise,  see  Breach 
OF  Promise,  II. 

Digest  1-52  L.R.A.(N.S.) 


To  liability  of  county  for  injury  by  de- 
fects in  bridge,  see  Bridges,  IS,  20-23. 

To  action  to  recover  penalty  for  delay  in 
transportation,  see  Carriers,  893. 

To  action  against  drawer  of  cheek,  see 
Checks,  45. 

In  action  to  quiet  title,  see  Cloud  on 
Title,  II. 

In  proceeding  for  contempt,  see  Contempt, 
16. 

To  liability  on  contract,  generally,  see  Con- 
tracts, VI.  b. 

To  suit  by  corporation  to  compel  repay- 
ment by  promoters  of  illegal  profits, 
see  Corporations,  ]95,  197. 

To  liability  as  stockholder,  see  Corpora- 
tions, 348-353,  355,  364. 

To  action  by  unauthorized  corporation  to 
enforce  contract,  see  Corporations, 
430-442. 

To  local  improvement  assessments,  see  Cor- 
porations, 435,  436;  Public  Improve- 
ments, 74,  75. 

To  action  for  breach  of  covenant,  see  Cove- 
nants AND  Conditions,  37. 

To  criminal  prosecution,  instigation  or  con- 
sent as,  see  Criminal  Law,  I.  f. 

To  action  for  causing  death,  see  Death,  IV. 

To  action  for  divorce,  see  Divorce  and 
Separation,  IV. 

To  ejectment  suit,  see  Ejectment,  II.  b. 

To  prosecution  for  embezzlement,  see  Em- 
bezzlement, 3,  6,  8,  12. 

In  condemnation  proceedings,  see  Eminent 
Domain,  136-148. 

To  action  on  executor's  bond,  see  Execu- 
tors and  Administrators,  79. 

To  action  for  false  imprisonment,  see  False 
Imprisonment,  III. 

To  prosecution  for  false  pretenses,  see 
False  Pretenses,  21,  22. 

To  liability  for  interfering  with  extinguish- 
ment of  fires,  see  Fires,  24. 

To  action  for  fraud,  see  Fraud  and  Deceit, 
72. 

To  prosecution  for  violation  of  game  laws, 
see  Game  Laws,  9. 

To  liability  for  obstruction  of  sidewalk,  see 
Highways,  80. 

To  prosecution  for  homicide,  see  Homicide, 
III. 

To  action  by  abandoned  wife  for  support, 
see  Husband  and  Wife,  200,  209. 

To  action  on  insurance  policy,  see  Insur- 
ance, VL  e. 

To  action  on  premium  note,  see  Insurance, 
424. 

To  prosecution  for  violation  of  Sunday 
closing  law,  see  Intoxicating  Liquors, 
162. 

To  enforcement  of  bid  at  judicial  sale,  see 
Judicial  Sale,  12-14. 

To  libel  or  slander,  see  Libel  and  Slander, 
III.  c. 

In  mandamus  case,  see  Mandamus,  II.  d. 

To  action  for  rent  under  oil  and  gas  lease, 
see  Mines,  70. 

In  foreclosure  suit,  see  Mortgage,  VI.  d. 

To  violation  of  ordinance  as  to  fire  limits, 
see  Municipal  Corporations,  220. 

In  proceedings  to  abate  nuisance,  see  Nui- 
sances, II.  d. 


912 


DEFERRED   DIVIDEND— DEFINITIONS. 


To  prosecution  for  illegal  practice  of  medi- 
cine, see  Physicians  and  Surgeons, 
15-17. 

To  prosecution  for  illegal  use  of  mails,  see 
POSTOFFICE,  16. 

In  replevin  suit,  see  Replevin,  II.  b. 

To  action  by  vendee  for  shortage  in  quality 
of  goods  delivered,  see  Sale,  137,  138. 

To  action  for  specific  performance,  see  Spe- 
cific Performance. 

To  collection  of  tax,  sec  Taxes,  152. 

To  liability  of  township  trustees  for  failure 
to  provide  for  collection  of  tax  to  pay 
contractor,  see  Towns,  13,  14. 

To  action  for  infringement  of  trademark, 
see  Trademarks,  V. 

To  action  for  trespass,  see  Trespass,  I.  c. 

In  trover,  see  Trover,  44-49. 

To  prosecution  for  alleged  unlawful  sale  of 
.grain  stored  in  warehouse,  spe  Ware- 
housemen, 3. 

Discharge    in    bankruptcy    as,    see    Bank- 

RTIPTCY,    V. 

Maintenance  as,  see  Champebty  and  Main- 
tenance. 
Illegality   of   contract   as,   see   Contracts, 

ni.'g. 

Ultra  vires,  see  Cobporations,  IV.  d,  2. 

Laches  as,  see  Estoppel,  III.  g;  Limita- 
tion OF  Actions,  I.  b. 

Infancy  as,  see  Infants,  I.  d. 

Fraudulent  use  of  trademark  as,  see  In- 
junction, 401. 

Fact  that  plaintiff  is  member  of  illegal 
combination,  see  Monopoly  and  Com- 
binations, 52. 

Depreciation  in  pledged  stock  after  matu- 
rity of  note,  see  Pledge  and  Col- 
lateral Security,  27. 

Legislative  authority  as,  see  Railboads,  25. 

Violation  of  Sunday  law  as,  see  Sunday,  V. 

Usury  as,  see  Usury,  II. 

Affidavit  of,  see  Appeal  and  Error,  811; 
Pleading,  480,  506. 

Effect  of  account  stated  on,  see  Accounts, 
10. 

Vested  right  to,  see  Constitutional  Law, 
65. 

Due  process  as  to,  see  Constitutional 
Law,  IL  b,  7,  b,  (2). 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  II.  c. 

Evidence  to  establish,  see  Evidence,  1677. 

Negation  of,  see  Indictment,  etc.,  II.  c; 
Pleading,  II.  e. 

Necessity  of  pleading,  see  Pleading,  III.  b. 

Sufficiencv  of  plea  to  raise,  see  Pleading, 
III.  d. 

Pleading  inconsistent  defenses,  see  Plead- 
ing, 27,  28,  143. 

Striking  out  immaterial  defenses,  see 
Pleading,  156. 

Review  on  appeal  of  refusal  to  permit 
amendment  to  set  up,  see  Appeal  and 
Error,  598. 

First  pleading  of,  on  appeal,  see  Appeal 
and  Error,  740-742. 

Error  in  entertaining  motion  to  strike  out 
separate  offense,  see  Appeal  and  Erkoi!, 
1085. 

Digest  1-52  I,.R.A.(N.S.) 


Right  of  party  to  illegal  contract  to  set  up 
illegality  as  defense,  see  Contracts, 
564. 

Tender  of  premium  by  insurer  as  condition 
of  setting  up  defense  in  action  on  pol- 
icy, see  Insurance,  434-444. 

Interposition  of  equitable  defense  in  action 
on  judgment,  see  Justice  of  the 
Peace,  2. 

Liability  for  damages  caused  by  unjustified 
defense,  see  Torts,  9. 

Establishment  of,  on  cross-examination  of 
witnesses,  pee  Wpfnesses,  90. 


DEFERRED   DIVIDEND. 

On  preferred  stock,  see  Corporations,  296, 
297. 


DEFICIENCY. 


Second  levy  for,  see  Judicial  Sale,  22. 
On  foreclosure,  see  Mortgages,  VI.  i. 


DEFICIENCY  JUDGMENT. 

Statute  forbidding,  see  Election  of  Reme- 

dib:s,  2. 
Validity    of    deficiency    decree    to    enforce 

vendors'  lien,  see  Judgment,  125. 


DEFINTTENESS. 


Of   objections   and   exceptions,   see   Appeal 

AND  Error,  V.  a. 
Of  order  of  state  railroad  commission,  see 

Carriers,  1077,  1078. 
Of  charitable  bequest,  see  Charities,  I.  d. 
Of  contract,  see  Contracts,  I.  d,  3. 
Of  ordinance,  see  Municipal  Corporations, 

85,  86,  119,  123. 
Of  pleading,  see  Pleading,  I.  c. 
Of  statutes,  see  Statutes,  35-44. 
Of  tax  levy,  see  Taxes,  157. 
Of  tax  deed,  see  Taxes,  220. 
Of  offer  of  evidence,  see  Trial,  45,  48. 
Of  verdict,  see  Trial,  1124. 


DEFINITIONS. 


Complaining  of,  for  first  time  on  appeal, 
gee  Appeal  and  Error,  166. 

In  instructions,  see  Appi:al  and  Error, 
1318,  1324,  1325,  1346,  1429,  1430; 
Trial,  881-888. 

Absolutely  free,  see  Copyright,  19. 

Accidental  means,  see  Insurance,  VI.  b, 
3,  c. 

Accident  arising  out  of  and  in  the  course 
of  employment,  see  Master  and  Serv- 
ant. 

Adverse  claimants,  uee  Notice,  16. 


DEFINITIONS. 


913 


Apparent    authority,    see    Principal    and 

Agent,  24. 
Assigns,  see  Taxes,  218. 
At,  see  Contracts,  36G. 
Author,  see  Copyright,  5,  6. 
Bank  check,  see  Checks,  2, 
Bodily  heirs,  see  Deeds,  71. 

Bona  fide  holder,  see  Bills  and  Notes,  158a. !  Manslaughter,  see  Trial,  1088. 
Born    previously    to    a    certain    period,    see    Manufacturer,  see  Gas,  15. 


Legal  heirs,  see  Insurance,  832. 

Legal  malice,  see  Homicide,  24. 

Legal    representative,    see   Insurance,    833, 

834. 
Lost  property,  see  Finder,  1,  2. 
Maliciously,  see  Malicious  Mischief. 
Malum  in  se,  see  Homicide,  38. 


Wills,  154,  155,  249. 

Boycott,  see  Conspiracy,  4. 

Building,  see  Insurance,  717. 

Champerty,  see  Criminal  Law,  167,  170. 

Children,  see  Wills,  208. 

Civil  conspiracy,  see  Conspiracy,  2. 

Collision,  see  Insurance,  678. 

Confirrfiation,  see  Contracts,  374,  375. 

Contemporaneously,  see  Carriers,  1055. 

Conversion,  see  Trover,  13. 

Course  of  employment,  see  Master  and 
Servant,  895. 

Customer,  see  Contracts,  365. 

Damages,  see  Eminent  Domain,  180. 

Dance  house,  see  Statutes,  249. 

Dead  freight,  see  Carriers,  741,  874. 

Dependent,  see  Insurance,  67,  69. 

Destitute  of  means  of  support,  see  INSUR- 
ace,  189. 

Dividend  additions,  see  Insurance,  172,  173. 

Domicil,  see  Homicide,  79. 

Earliest  possible  convenience,  see  Limita- 
tion OF  Actions,  123. 

Employ,  see  Master  and  Servant,  2. 

Engage  and  employ,  see  Master  and  Serv- 
ant, 2. 

Equal  protection  of  law,  see  Constitu- 
tional Law,  150. 

Excusable  neglect,   see  Judgment,   350. 

Express  authority,  see  Principal  and 
Agent,  25. 

External  violent  and  accidental  means,  see 
Insurance,  VI.  b,  3,  c. 

Extraordinary  flood,  see  Waters,  194. 

False,  see  Duties,  1. 

Family,  see  Homestead,  9. 

Female,  see  Prostitution. 

Fence,  see  Covenants  and  Conditions,  83. 

Fictitious  person,  see  Bills  and  Notes,  9. 

F.  O.  B.  cars,  see  Contracts,  382. 

Front  or  nearest  external  wall,  see  Buii.d- 
INGS,   10. 

Game  of  hazard,  see  Contracts,  593. 

Going  value,  see  Gas,  49. 

Good  merchantable,  see  Sale,  76. 

Graft,  see  Graft. 

Habitual  drunkard,  see  Divorce  and  Seta- 
ration,  53. 

Hazard,  see  ^Iaster  and  Servant,  755,  757. 

Head  of  family,  see  Homestead,  10-12. 

Heirs,  see  Deeds,  32;  Wills,  162. 

Heirs  at  law,  see  Wills,  161. 

Holographic  will,  see  Wills,  119. 

Immediate,  see  Insurance,  635. 

Implements  of  trade,  see  Exemptions,   13. 

Imprisonment,  see  False  Imprisonment,  1. 

In  expeditione.  see  Wills,   120,  121. 

Insanity,  see  Criminal  Law,  25. 

In  terrorem,  see  Wills,  281. 

Intoxicating   liquor,   see  Intoxicating  Ij- 

QUORS,   102. 
Invisible  injury,  see  Insurance,  752,  753. 
Judicial  officer,  see  Bribery.  4. 
Keeping,  see  Insurance,  269. 
Digest  1-52  I<.B.A.(N.S.)  ^^ 


May,  see  Insurance,  188. 

Mob,  see  T^ial,  1062. 

Money,  see  Wills,  125. 

Moral  turpitude,  see  Attorneys,  16a. 

Natural  heirs,  see  Wills,  388. 

Next  eldest  brother,  see  Wills,  156. 

Next  of  kindred,  see  Descent  and  Distri- 
bution, 5. 

No  notary  present,  see  Wills,  22. 

Noon,  see  Insurance,  183. 

Operation,  see  Insurance,  715. 

Option,  see  Specific  Performance,  15. 

Ordinary  flood,  see  Waters,  193. 

Overflowed  lands,  see  Public  Lands,  7. 

Package,  see  Food,  2. 

Paraphernalia,  see  Husband  and  Wife,  93. 

Parole,  see  Criminal  Law,  289. 

Part  performance,  see  Contracts,  318. 

Pay,  see  Evidence,  962. 

Permanent  nuisance,  see  Nuisances,  3. 

Person  not  otherwise  a  party,  see  Bills 
AND  Notes,  91. 

Private  nuisance,  see  Nuisances,  I. 

Process,  see  Exemptions,  2. 

Property,  see  Bankruptcy,  45,  48. 

Proximate  cause,  see  Proximate  Cause,  1- 
3. 

Public  business,  see  Eminent  Domain,  47. 

Public  highway,  see  Automobiles,  2a;  In- 
surance, 719. 

Public  use,  see  Eminent  Domain,  43. 

Public  utility,  see  Municipal  Corporations, 
258;  Public  Service  Corporations,  12. 

Public  way,  see  Public  Way. 

Purchaser  for  valuable  consideration,  see 
Bankruptcy,  57. 

Quarry,  see  Quarry. 

Railroad  hazard,  see  Master  and  Servant, 
755,  757. 

"Reasonable  amount  of  work,"  see  Master 
and  Servant,  73. 

Reasonable  doubt,  see  Appeal  and  Error, 
1325,  1391;   Trial,  1071. 

Redemption,  see  Mortgages,  153-156. 

Religious  meeting,  see  Disturbing  Meet- 
ing, 2. 

Reservoir,  see  Waters,  307. 

Responsible,  see  Contracts,  798. 

Rest  of  my  money,  see  Wills,  301. 

Riot,  see  Mobs  and  Riots,  4. 

Roadbed,  see  Insurance,  720. 

Seashore,  see  Boundaries,  15. 

Seised,  see  Dower,  11. 

Shore,  see  Waters,  159. 

Shore  lien,  see  Waters,  159. 

Shores  of  navigable  river,  see  Waters,  71. 

Special  benefits,  see  Damages,  583. 

Storing,  see  Insurance. 

Structure,  see  Mechanics'  Liens,  32. 

Sum  at  risk,  see  Insurance,  791. 

Sun  stroke,  see  Insurance,  729. 

Swamp  lands,  see  Public  Lands.  5. 

Tenement,  see  Forcible  Entry  and  Detain- 
er, 2. 


914 


DEGENERACY— DELEGATION   OF  POWER. 


Tide  land,  see  Watebs,  70,  77. 
"Trade  dispute,"  see  Thade  Dispute. 
Treasure  trove,  see  Tbei&.suhk  Tbove,  1,  2,  5. 
Vice  principal,   see  Masteb  and  Servant, 

830. 
Widow,  see  Wills,  157. 
Widower,  see  Descent  and  Distbibution, 

9a. 
Wound,  see  Malicious  Injubt. 


DEGENERACY. 


As  ground  for  divorce,  see  Divobce  and  Sep- 

ABAXION,    58. 


DEGREES. 

Of  homicide,  see  Homicide. 


DELAY. 

In    repudiating    account    stated,    see    Ac- 

OOUNTS,  9. 

In  prosecution  of  criminal,  see  Appeal  and 
Ebbob,  491;   Cbiminal  Law,  87-94. 

In  presentation  of  check,  see  Assignment 
FOB  Ceeditobs,  16;  Checks,  21-28; 
Sale,  186. 

In  enforcing  note,  see  Bills  and  Notes, 
203. 

In  returning  unsatisfactory  insurance  poli- 
cy, see  Bills  and  Notes,  209. 

In  transportation  of  passenger,  see  Cabbi- 
EBS,  193-195;   Damages,  75,  257,  662. 

In  forwarding  baggage  car  of  orchestra  com- 
pany, see  Cabbiebs,  694. 

In  forwarding  loaded  cars,  see  Cabbiebs, 
996,  997;   Constitutional  Law,  196. 

In  furnishing  cars,  see  Cabbiebs,  III.  h. 

In  delivery  by  carrier,  see  Cabbiebs,  III.  d, 
4. 

In  removal  of  goods  by  consignee,  see  Cab- 
biebs, 855-859. 

In  delivering  telegrams,  see  Conflict  of 
Laws,  161-165. 

In  performing  or  completing  building  or 
construction  contract,  see  Contbacts, 
399,    639-641,    665-667,    704. 

In  rescinding  contract,  see  Contracts,  V. 
c,  2. 

In  enforcing  sentence  for  crime,  see  Cbimi- 
nal  Law,  229,  230. 

In  making  demand  for  proceeds  of  check  on 
on«  who  cashed  it  wrongfully,  see  Evi- 
dence, 1757. 

In  sending  in  application  for  insurance,  see 
Insubance,  34,  35. 

In  rejecting  receipt  for  renewal  of  insur- 
ance, see  Insubance,  119. 

In  settling  estate,  see  Intebest,  36. 

In  seeking  change  of  judges,  see  Jltk3ES, 
22. 

In  seeking  relief  from  judgment,  see  Judg- 
ment, VII.  e. 

In  developing  oil  and  gas  mine,  see  Mines, 
60. 

Digest  1-52  KR.A.CN.S.) 


In  running  timber  as  proximate  cause  of 
loss  from  flood,  see  Fboximate  Cause, 
69. 

In  furnishing  goods  sold,  see  Sale,  102,  106. 

In  rejecting  order  for  goods,  see  Sale,  6. 

In  asserting  right  to  reclaim  property  sold, 
see  Sale,  185-187. 

In  rescission  of  sale,  see  Sale,  214. 

In  transmission  of  telegram,  see  Tele- 
GBAPHS,  II.  a,  2. 

In  delivery  of  telegram,  see  Telegbapus, 
40-48;    Tbial,    744. 

In  seeking  to  recover  for  infringement  of 
trademark,  see  Trademarks,  29. 

Of  motion  papers  sent  by  mail,  see  Judg- 
ment,  349. 

Of  referee  in  making  report,  see  Reference, 
18. 

Dismissal  of  appeal  for,  see  Appeal  and 
Ebbob,  400,  401. 

Provision  in  contract  of  sale  that  accept- 
ance shall  waive  all  claims  to  damages 
for  delay,  see  Contbacts,  74. 

Escheat  of  railroad  property  for  delay  in 
improvement,  see  Escheat,  11. 

Estoppel  by,  see  Estoppel,  III.  g. 

Presumption  from,  see  Evidence,  551. 

As  bar  to  right  to  maintain  action,  see  Lim- 
itation OF  Actions. 

Release  of  surety  by,  see  Pbincipal  and 
Sotety,  58-63. 

As  ground  for  refusing  redelivery  of  re- 
plevined  property,  see  Replevin,  39, 
40. 

Acceptance  of  article  purchased  as  waiver 
of  delay,  see  Sale,  53,  67. 

Recoupment   of  damages   for,   see    Set-Off 

AND  COUNTEBCLAIM,   18. 

As  rendering  service  by  publication  invalid, 
see  Wbit  and  Pbocess,  73. 


DELEGATES. 


Duty  of  carrier  toward  delegates  to  conven- 
tion riding  free,  see  Cabbiebs,  170. 
To  political  convention,  see  Elections,  IV. 


DELEGATION. 


Of  duty  by  carrier,  see  Cabbiebs,  583,  584, 
Of  master's  duty,  see  Masteb  and  Servant, 
II.  e,  2;  III.  b. 


DELEGATION  OF  POWTR. 

Constitutionality  of,  see  Constitutionai. 
Law,  I.  d. 

As  to  local  option  generally,  see  Intoxi- 
cating Liquors,  I.  c. 

By  voters  to  city  coimcil  to  fix  amoimt  of 
bonds,  see  Bonds,  76. 

By  or  to  municipality,  see  Municipal  Cob- 
pobations,  II.  b. 

By  religious  society,  see  Religious  Socie- 
ties, VIII. 

By  board  of  health,  see  Waters,  129. 


DELIBERATION— DEMONSTRATIVE      EVIDENCE. 


915 


To  employee,  see  Master  and  Servant,  989. 
To  furnish  water  for  use  of  city,  see  Wa- 
ters, 334. 


DELIBERATION. 


As  element  of  murder,  see  Homicide,  17-22, 
41. 


DELINQUENT  CHILDREN. 

CJonstitutionality  of  statute  as  to,  see  CoN- 

STiTtmoNAL  Law,  357,  358. 
Jurisdiction     in     matters     concerning,     see 

Courts,  246. 
Power  of  state  over,  see  Infants,  3,  25. 
Binding  effect  on  parent  of  order  adjudging 

that  child  is  delinquent,  see  Judgment, 

242. 
Right  to  jury  of  twelve  in  proceeding  for 

restraint  of  delinquent  child,  see  JuBT, 

10. 
Duty  to  keep  record  of  proceedings  as  to, 

see  Records  and  Recording  Laws,  12. 
Residence   for   school   purposes   of   children 

committed  to  citizens  on  probation  by 

juvenile  court,  see  Schools,  8. 
See  also  Juvenile  Offenders. 


DELIRIUM. 


Fall   of  person   delirious   from  fever   from 
window,  see  Insurance,  745. 


DELIRIUM   TREMENS. 

Liability  for  homicide  committed  while  suf- 
fering from,  see  Criminal  Law,  34. 

Resulting  from  shock  from  being  thrown 
from  automobile,  see  Homicide,  3. 

Injury  which  precipitates  attack  of,  as 
proximate  cause  of  death,  see  Proxi- 
mate Cause,  30. 


DELIVERY. 


By  carrier,  see  Carriers,  III.  d. 

Of  indemnity  bond,  see  Bonds,  3. 

Of  deed,  see  Deeds,  I.  b. 

Of  gift,  see  Gifts,  III. 

Of  insurance  policy,  see  In8URANx:!E,   128- 

137. 
Of  intoxicating  liquor,  see  Commebce,  124, 

127;    Intoxicating  Liquors,   166-179. 
Of  pledged  property,  see  Pledge  and  Coiy 

lateral  Sbcubity,  2-10. 
Of  personalty  sold,  see  Sale,  I.  b. 
Of  telegram,  see  Telegraphs,  II.  a,  5. 
•  In  escrow,  see  Escrow,  37-42. 
Indorsement  of  note  before,  see  Bills  and 

Notes,  III.  b,  2. 
Digest  1-52  L.R.A.(N.S.) 


Requiring  free  delivery  by  express  company 
as  interference  with  commerce,  see  COM- 
MBaicE,  32-34. 


DELUSIONS. 


Effect    of,    on    testamentary    capacity,    see 
Wnxs,  71-73. 


DEMAND. 


As  condition  precedent  to  right  of  action, 
see  AdioN  or  Suit,  28-30;  Corpora- 
tions, 280,  281;  Mandamus,  100;  Re- 
plevin, I,  c;  Trover,  I.  c. 

For  payment  of  certificate  of  deposit,  see 
Banks,  147. 

For  payment  of  note,  see  Bills  and  Notes, 
IV. 

For  delivery  of  freight,  see  Carriers,  744. 

For  performance  of  option,  see  Contracts, 
184. 

For  dower,  see  Contracts,  255;  Dower,  34- 
37,  47. 

For  jury  trial,  see  Jury,  I.  c. 

Upon  guarantor,  see  Guaranty,  3. 

Against  city,  see  Municipal  Corporations, 
II.  g,  5. 

Maturity  of  note  payable  on  demand,  see 
Bills  and  Notes,  126. 

Treaty  requirements  as  to  proof  of  formal 
demand  for  extradition,  see  Extradi- 
tion, 3. 

Interest  on  money  payable  on  demand,  see 
Interest,  5. 

Necessity  of  demand  of  payment  to  start 
running  of  interest,  see  Interest,  I.  h. 

Time  within  which  demand  for  money  pay- 
able on  demand  must  be  made,  see  Lim- 
itation of  Actions,  50,  51. 

Necessity  of,  to  start  running  of  limita- 
tions, see  Limitation  of  Actions,  139- 
148. 

Waiver  of,  by  conditional  vendee,  see  Sale, 
141. 


DEMAND  NOTE. 


Mat.urity  of,  see  Bills  and  Notes,  126. 

♦-•-• 

DEMONSTRATION. 

On  part  of  spectators   in  court  room,  see 
Appeal  and  Erbob,  1049. 


DEMONSTRATIVE  EVIDENCE. 

See  Evidence,  V. 


91G 


DEMURRAGE— DEPOSIT. 


DEMURRAGE. 

On  cars,  see  Caeriebs,  III.  i. 
On  vessel,  see  Shipping,  8-11. 


DEMURRER. 


To  indictment  or  information,  see  Crim- 
inal Law,  147,  154,  155;  Grand  Jury, 
4;  Indictment,  etc.  137. 

To  evidence,  see  Trial,  II.  d,  4. 

Presumption  of  correctness  of  rulings  on, 
see  Appeal  and  Error,  446,  447. 

Review  on  appeal  of  rulings  as  to,  see  Ap- 
peal AND  Error,  553,  554. 

Affirmance  or  reversal  of  ruling  as  to,  on 
appeal,  see  Appeal  and  Error,  1586. 

Limitation  of  judgment  sustaining,  see 
Judgment,  27. 

Judgment  sustaining,  as  one  upon  merits, 
see    JtJDGMENT,    70. 

Conclusiveness  of  judgment  on,  see  Judg- 
ment, 100-102. 

Motion  to  strike  out  bill  as  in  nature  of  de- 
murrer, see  Motions  and  Orders,  1. 

In  general,  see  Pleading,  VII. 


DENIALS. 


In  pleading,  see  Pleading,  105,  106,  109, 
451-457,  483,  486,  498,  602,  609,  522, 
649. 


DE  NOVO. 


See  Trial  de  Novo. 


DENTISTS. 


Contracts  by,  in  restraint  of  trade,  see  Con- 
tracts, 547,  552. 

Liability  of  members  of  corporation  of,  see 
Corporations,  307. 

Review  by  court  of  action  of  state  board  of 
dental  examiners  in  revoking  license, 
see  Courts,  51. 

Exemplary  damages  against,  see  Damages, 
65. 

Sale  of  good  will  of  dental  business,  see 
Good  Will,  2-4. 

Injunction  to  restrain  breach  of  contract 
not  to  enter  into  competition  with  em- 
ployer, see  Injunction,  78,  445. 

Injunction  against  enforcement  of  order 
for  revocation  of  license,  see  Injunc- 
tion, 312. 

Indefiniteness  of  statute  as  to  revocation 
of  license  of,  see  Statutes,  36. 

1.  A  person  who  is  licensed  to  "practise 
medicine  and  surgery"  cannot,  by  virtue 
thereof,  "practise  dentistry"  without  secur- 
ing a  license  as  a  dentist,  where  the  legis- 
lature has  defined  both  the  practice  of  medi- 
Digest  1-52  L.R.A.(N.S.) 


cine  and  the  practice  of  dentistry,  and  made 
of  them  two  distinct  professions,  with  pre- 
scribed requirements  for  each.  State  v.. 
Taylor,  19:  877,  118  N.  W.  1012,  106  Minn. 
218. 

2.  The  making  of  a  promise  without  an 
intention  to  perform  it  may  amount  to  a 
false  statement  as  to  an  existing  condition, 
within  the  meaning  of  a  statute  authoriz- 
ing a  dentist's  license  to  be  revoked  where 
he  has  obtained  money  by  false  represen- 
tations. Richardson  v.  Simpson,  43:  911^ 
129  Pac.  1128,  88  Kan.  684.  (Annotated) 


DEPARTMENT  OF  INTERIOR. 

Appointment  of  receiver  to  preserve  status 
quo  pending  contest  before,  see  Re- 
OEIVERS,  3. 


DEPARTMENT  STORE. 

Who  are  fellow  servants  in,  see  Master  and 
Servant,  751. 


DEPARTURE. 


In  pleading,  see  Appeal  and  Error,  166, 
1055;  Pleading,  83,  107-110,  553-558, 
582. 


DEPENDENT. 


Insurable  interest  of,  see  Insurance,  65-80. 

WTio  is  dependent  beneficiary  under  Federal 

employers'  liability  act,  see  Death,  6. 


DEPENDENT    RELATIVE    REVOCA' 
TION. 

Of  will,  see  Wllls,  50. 


DEPORTATION. 

See  Aliens,  I. 


DEPOSIT. 


In  bank  generally,  see  Banks,  III.  a. 
Gift  of  bank  deposit,  see  Gift,  9,  11-18,  23^ 

26. 
Forfeiture  of,  see  Forfeiture,  3. 


DEPOSITIONS,  I.,  II. 


917 


DEPOSITIONS. 

I.  In  general,  1—7. 

II.  Talcing  and  returning,  8,  9. 

III.  Objections. 

IV.  Use  on  trial,  10—19. 

Review  on  appeal  of  discretion  as  to  allow- 
ance of  cost  of  taking,  see  Appeax,  and 

Error,  573. 
Review  of  discretion  in  refusing  to  quasli, 

see  Appeal  and  Error,  600. 
Refusal  to  order  into  court  deposition  taken 

by  plaintiff  but  not  filed,  see  Appeal 

AND  Error,  1216. 
Refusal  to  obey  order  as  to,  see  Contempt, 

80,   81,  92-94. 
Striking  out,  as  punishment  for  contempt, 

see  Contempt,  107. 
Cost  of  taking  as  part  of  costs  of  case,  see 

Costs  and  Fees,  4. 
Right  of  one  accused  of  murder  to  order  to 

enable    him    to    secure    evidence,     see 

Criminal  Law,  159,  160. 
Admissibility  as,  of  transcript  of  testimony 

at  former  trial  as  to  transaction  with 

person    since    deceased,    see    Evidence, 

777. 
Conclusiveness  of  deposition  of  witnesses  as 

to   facts   stated   therein,   see   Evidence, 

2260. 
Right  to  object  to  admission  of,  see  Trial, 

79. 
Of  attesting  witnesses,  see  Wills,  94. 
Supplying  loss  of  suppressed  deposition  by 

cross    examination    of    opposite   party, 
see  Witnesses,  79. 
As  to  discovery  an,d.  inspection,  see  Discov- 
ery and  Inspection. 

I.  In  general. 

(See  also   same   heading  in  Digest  L.R.A. 

1-70.) 

Right    to    take. 

1.  To  authorize  a  Federal  court,  as  a 
court  of  equity,  to  direct  depositions  to 
be  taken  in  perpettiam  rei  menwriam,  un- 
der U.  S.  Rev.  Stat.  §  866,  U.  S.  Comp. 
Stat.  1901,  p.  663,  it  is  not  necessary  for 
the  bill  to  present  a  case  where  it  is  neces- 
sary that  the  depositions  be  taken  to  pre- 
vent a  failure  or  delay  of  justice.  Westing- 
house  Machine  Co.  v.  Electric  Storage  Bat- 
tery Co.  25:  673,  170  Fed.  430,  95  C.  C.  A. 
600. 

2.  A  manufacturer  who  is  charged  with 
making  an  article  which  infringes  another's 
patent,  and  whose  customers  are  notified 
of  that  fact,  and  who  is  threatened  with 
suits  for  infringement,  which  are  not 
brought,  and  who  claims  that  he  can  prove 
the  invalidity  of  the  patent  by  witnesses 
presently  available,  but  whose  testimony 
may  be  lost  by  death  or  removal,  may  main- 
tain a  bill  in  a  Federal  court  under  U.  S. 
Rev.  Stat.  §  866,  U.  S.  Comp.  Stat.  1901, 
p.  663,  to  take  their  depositions  in  per- 
petuam  rei  memoriam.  Westinghouse  Ma- 
chine Co.  v.  Electric  Storage  Battery  Co. 
25:  673,  170  Fed.  430,  95  C.  C.  A.  600. 
Digest  1-52  L.R.A.(N.S.) 


3.  A  petition  for  abatement  of  taxes 
is  a  civil  case  within  the  meaning  of  a 
statute  permitting  the  taking  of  depositions 
in  such  cases,  for  use  at  the  trial.  Boston 
&  M.  R.  Co.  V.  State,  31:  539,  77  Atl.  996, 
75  N.  H.  613. 

4.  A  provision  of  one  section  of  a  stat- 
ute that  the  testimony  of  nonresident  par- 
ties to  a  cause  may  be  taken  in  the  same 
manner  as  the  testimony  of  other  nonresi- 
dent witnesses,  "this  to  apply  to  courts  of 
law  and  equity,"  will  permit  the  taking  of 
the  depositions  of  nonresident  witnesses  not 
parties  in  equity  suits,  although  the  terms 
of  the  former  section  providing  for  depo- 
sitions of  nonresident  witnesses  applied  to 
courts  of  law  only.  Clark  v.  Callahan,  10: 
616,  66  Atl.  618,  105  Md.  600. 

Wlio    may    take. 

5.  A  commission  to  take  testimony  can- 
not be  executed  by  an  officer  to  whom  it  is 
not  addressed.  De  Renzes  v.  Palestine, 
2:  1089,  39  So.  805,  115  La.  675. 

6.  A  commission  to  take  testimony  ad- 
dressed to  "any  judge,  justice  of  the  peace, 
or  Louisiana  commissioner"  cannot  be  exe- 
cuted by  a  notary  public.  De  Renzes  v. 
Palestine,  2:  1089,  39  So.  805,  115  La.  675. 
Preliminary  examination  of  party. 
Refusal  to  continue  case  to  permit  taking  of 

plaintiff's  deposition,  see  Appeal  and 
Error,  1053. 
Preliminary  physical  examination,  see  Dis- 
covery AND  Inspection,  II. 

7.  A  defendant  has  the  right  to  take 
plaintiff's  deposition  before  trial,  under  a 
statute  providing  that  a  party  may  be  ex- 
amined at  the  instance  of  the  adverse  party 
by  deposition,  as  any  other  witness,  where 
the  circumstances  are  such  as  to  entitle  him 
to  take  the  deposition  of  a  witness  other 
than  a  party  to  the  suit.  Western  U.  Teleg. 
Co.  v.  Williams,  19:  409,  112  S.  W.  651,  129 
Ky.  515. 

II.  Talcing  and  returning. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Inherent  power  of  court  to  issue  commission 
to  take,  to  officer  in  other  state,  see 
Courts,  8. 

Requiring  production  of  privileged  commu- 
nication on  taking  of,  see  Discovery 
AND  Inspection,  14,  15. 

Privilege  of  witness  on  taking  of,  see  Ref- 
erence, 6;  Witnesses,  126. 

8.  A  witness  is  entitled  to  the  same 
privileges  and  immunities  when  a  deposi- 
tion is  taken  as  when  examined  in  open 
court.  Ex  parte  Button,  23:  1173,  120  N. 
W.  203,  83  Neb.  636. 

Notice. 

Effect  of  acceptance  of  notice  to  take  as  an 
appearance,  see  Appearance,  3. 

Constitutionality  of  statute  authorizing 
taking  of,  without  notice,  see  Consti- 
tutional Law,  583. 

9.  Although  the  opposite  party  resides 
in  the  place  where  the  depositions  are  to  be 


918 


DEPOSITIONS,  III.— DEPOTS. 


taken,  he  is  not  entitled  to  be  informed  of 
the  time  when  and  the  place  where  the 
depositions  will  be  taken,  if  interrogatories 
are  attached  to  the  commission,  and  have 
been  communicated  to  him,  and  an  oppor- 
tunity aflorded  him  to  cross  the  same.  De 
Renzes  v.  Palestine,  2:  1089,  39  So.  805,  115 
La.  675. 

III.  Objections. 

(See  also  same  heading  m  Digest   L.R.A. 
1-10.) 

Sufficiency  of  exception  to  taking  of,  see  Ap- 
peal AND  Erbob,  312. 

IV.  Use  on  trial. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Use  of,  in  other  cases,  see  Evidence,  780. 
Putting  whole  writing  in  evidence,  see  Evi- 
dence, 877. 

10.  That  a  decree  was  rendered  in  vaca- 
tion may  be  shown  by  deposition.  Jackson 
V.  Becktold  Printing  &  B.  Mfg.  Co.  20:  454, 
112  S.  W.  161,  86  Ark.  591. 

11.  Depositions,  the  taking  of  which  is 
not  authorized  by  any  rule  of  court,  are 
not  admissible  in  evidence.  Lvttle  v.  Den- 
ny, 20:  1027,  71  Atl.  841,  222  Pa.  395. 

12.  The  cross-examination  in  depositions 
on  subjects  excluded  in  chief  is  not  admis- 
sible in  evidence.  Baltimore  &  O.  R.  Co. 
V.  Dever,  26:  712,  75  Atl.  352,  112  Md.  296. 

13.  A  statute  requiring  depositions  of 
nonresident  witnesses  to  lie  in  court  ten 
days  before  the  case  shall  be  taken  up  for 
hearing  does  not  rejider  them  inadmissible 
in  evidence  should  the  case  be  taken  up  be- 
fore that  time,  but  the  objection  must  be  to 
the  taking  up  of  the  case.  Clark  v.  Calla- 
han, 10:  616,  66  Atl.  618,  105  Md.  600. 

14.  Depositions  may  be  used  in  the  con- 
sideration by  the  probate  court  of  claims 
against  a  decedent's  estate,  where  the  stat- 
utes provide  for  the  taking  of  depositions 
in  suits  at  law  and  that  contested  claims 
shall  be  tried  in  the  probate  court  as  other 
suits  at  law.  Re  McVicker,  28:  11 12,  91  N. 
E.  1041,  245  111.  180. 

15.  Where  the  evidence  of  a  witness  is 
taken  by  a  deposition  after  notice  given  as 
provided  by  statute,  and  the  adverse  party 
neglects  to  appear  and  cross-examine  the 
witness,  and  thereafter  gives  notice  in  con- 
formity with  law  of  the  taking  of  the  dep- 
osition of  the  same  witness,  and  in  pur- 
suance of  such  notice  takes  the  deposition 
of  such  witness,  and  in  so  doing  cross- 
examines  the  witness  on  the  deposition  pre- 
viously given  by  him,  it  is  erroneous  pro- 
cedure to  admit  the  later  deposition  as  a 
part  of  plaintiff's  case  and  before  defend- 
ant has  opened  his  side  of  the  case.  Vaughn 
V.  Johnson,  37:  816,  119  Pac.  879,  20  Idaho, 
669. 

Objectionable   form   of   questions. 

16.  Where  evidence  is  in  the  form  of 
Digest  1-52  Ii.R.A.(N.S.) 


depositions,  and  the  court  upon  inspection 
can  see  tliat,  altliougli  the  form  of  tlic  ques- 
tions may  ho  technically  objectionable,  the 
answers  furnish  proper  evidence,  substance 
rather  than  form  should  be  heeded,  and  the 
evidence  admitted.  Bryant  v.  Modern  Wood- 
men of  America,  27:  326,  125  N.  W.  621,  86 
Neb.  372. 
Unresponsive    answers. 

17.  Answers  to  questions  propounded  by 
his  own  counsel  to  one  who  has  been  called 
upon  to  answer  interrogatories  by  the  other 
party  to  an  action  cannot  be  excluded  be- 
cause not  given  in  response  to  the  interroga- 
tories propounded,  ©r  because  the  other  party 
was  not  present,  where  the  statute  provides 
that  a  person  so  interrogated  may  state 
any  matter  connected  with  t"he  case  and  perti- 
nent to  the  issue  to  be  tried.  Sparks  v. 
Taylor,  6:  381,  90  S.  W.  485,  99  Tex.  411. 
£^ect    of    amending    pleadings    after 

deposition  is  taken. 

18.  A  deposition  which  contains  compe- 
tent evidence  on  matters  in  issue  at  the 
time  it  Aas  taken  was  not  rendered  inad- 
missible as  to  such  evidence,  by  the  fact 
that  the  amended  declaration,  on  which  the 
trial  was  had,  put  in  issue  matter  in  addi- 
tion to  that  as  to  which  the  deposition 
contained  competent  evidence.  Sayre  v. 
Woodyard,  28:  388,  66  S.  E.  320,  66  W.  Va. 
288. 

19.  A  deposition  which  contains  com- 
petent evidence  as  to  matters  in  issue  at 
the  time  it  was  taken  cannot  be  suppressed, 
in  whole  or  in  part,  after  trial  begun  on  an 
amended  declaration,  on  the  ground  that 
such  amended  declaration  put  in  issue  ad- 
ditional matter,  where  it  also  sets  up,  in 
part  at  least,  the  same  matter  as  to  which 
the  deposition  contained  competent  evi- 
dence. Sayre  v.  Woodyard,  28:  388,  66  S. 
E.  320,  66  W.  Va.  288. 


DEPOSITORS'  GUARAirrY  FUND. 

Constitutionality    of    statute    creating,    see 
CoNSTiTxrriONAL  Law,  282,  702,  776. 


DEPOT  GROUNDS. 

Acquiring  title  to  portion  of,  by  adverse 
possession,  see  Advebse  Possession,  48. 

What  constitutes,  see  Railboads,  49,  50; 
Tbiai,,  236. 


DEPOTS. 

Carrier's  duty  as  to,  see  Cabbiers,  IT.  1; 
IV.  d. 

Condition  of,  see  Carrikrs,  II.  1. 

Grant  of  special  privileges  to  hacks,  car- 
riages, etc.  at,  see  Carriers,  1007-1013. 


DEPRECIATION— DESCENT  AND  DISTRIBUTION. 


91'J 


Agreement  to  maintain,  at  certain  place, 
see  CoNTBACTS,  ^69,  507-509,  628;  Cov- 
enants AND  Conditions,  8;  Injunc- 
tion, 59;  Paeties,  42;  Pleiading,  195; 
Specific  Perfobmance,  65,  66,  68. 

Estoppel  by  using,  see  Estoppel,  81. 

Platform  at  depot  as  public  highway  within 
meaning  of  accident  insurance  policy, 
see  Insurance,  719. 

Forbidding  solicitation  of  business  at,  see 
Municipal  Corporations,  181-185. 


DEPRECIATION. 


Allowance  for,  in  estimating  value  of  pub- 
lic utility  plant  for  purpose  of  fixing 
rates,  see  Gas,  30;  Telephones,  19-21, 
23. 


DEPUTY. 

Sheriff's  liability  for  act  of,  see  Bonds,  62; 
Pleading,  241;   Sheriff,  6. 

Bond  of  deputy  sheriff,  see  Bonds,  65,  66. 

Right  of  deputy  sheriff  to  carry  weapon 
outside  of  his  district,  see  Carrying 
Weapons,  8. 

Validity  of  contract  by  sheriff  to  supply 
deputies  for  protection  of  property,  see 
Contracts,  525. 

Right  of  deputy  sheriff  to  reward  for  ar- 
rest, see  Reward,  3-5. 

Appointment  as  deputy  of  one  withdraw- 
ing from  candidacy  for  nomination,  see 
Contracts,  524. 

Sufficiency  of  certificate  signed  by  deputy 
register  instead  of  register,  see  Mort- 
gage, 168. 

Right  to  change  salary  of,  see  Officers,  94. 

Service  on,  see  Writ  and  Process,  38. 


DERAIUNG  S^VITCH. 

On  private  railroad,  employer's  duty  and 
liability  as  to,  see  Master  and  Serv- 
ant, 403,  866. 


DERAILMENT. 


Injury  to  live  stock  by,  see  Carriers,  222, 
248,  275. 

Injury  to  live  stock  by,  see  Carriers,  891. 

Presumption  of  negligence  in  case  of,  see 
Evidence,  344-348,  390. 

Evidence  as  to  liability  for  injury  caused  by, 
see  Evidence,   1965. 

Sufficiency  of  evidence  of  negligence  toward 
servant  injured  by,  see  Evidence,  2135. 

Proof  of,  as  showing  negligence,  see  Evi- 
dence, 2145. 

Digest  1-52  L.R.A.(N.S.) 


DERRICK. 

Admissibility  of  admissions  by  operator  of, 

see  Evidence,  1251. 
Injury  to  child  by  fall  of,  see  Negligence, 

131. 


DESCENT  AND  DISTRIBUTION. 

I.  Right   to   inherit,    1—27. 

a.  Who  entitled  generally,  1—10. 
t.  Effect  of  alienage,  11. 

c.  Effect       of       illegitimacy       or 

slavery,    12—15. 

d.  Effect  of  adoption,   16—28. 

e.  Rights   of  husband   and  wife, 

24r-21. 

II.  Property    subject    to    descent    and 
distribution,  28—31. 
III.  Nature    and    incidents    of    estate, 
32,  33. 

Right  of  heirs  to  disaffirm  infant's  deed,  see 
Abatement  and  Revival,  6. 

Statute  authorizing  sale  of  unclaimed  prop- 
erty of  absent  heirs,  see  Abseintees; 
Constitutional  Law,  608. 

Advancement  to  child,  see  Advancements. 

Precedence  of  foreign  assignment  in  bank- 
ruptcy over  claim  of  assignor  to  share 
as  next  of  kin  in  personal  estate  of  a 
decedent,  see  Bankruptcy,  180. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  I.  j. 

Right  to  take  property  by  inheritance  as 
natural  right,  see  Constitutional 
Law,  386. 

Due  process  in  administration  of  estate, 
see  Constitutional  Law,  591-593. 

Equitable  conversion  of  property  belonging 
to  decedent,  see  Equitable  Conversion. 

Mistake  in  regard  to  law  of,  as  ground  for 
relief  in  equity,  see  Equity,  65. 

Impressing  share  of  heir  with  constructive 
trust  because  of  his  fraud  in  frustrating 
decedent's  intention  to  give  property  to 
third  person,  see  Estoppel,  195. 

Estoppel  by  renunciation  of  succession  to 
contest  rights  of  person  claiming  share 
in  estate,  see  Estoppel,  205. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  685,  686. 

Declarations  to  prove  relationship  of  one 
claiming  share  in  estate,  see  Evidence, 
1273,   1274. 

As  to  distribution  of  decedent's  estate  gen- 
erally, see  Executors  and  Adminis- 
trators, IV,  c. 

Transmission  of  homestead  in  case  of  death, 
see  Homestead,  IV.  b. 

Application  of  state  law  to  devolution  of 
estates  of  Indians,  see  Indians,  6. 

Judicial  sale  of  franchise  for  debts  of  de- 
ceased owner  as  against  his  heirs,  see 
Judicial  Sale,  3. 

Conclusiveness  of  judgment  as  to  inheritance 
from  child,  see  Judgment,  82. 


920 


DESCENT  AND  DISTRIBUTION,  I.  a. 


Payment  as  affecting  running  of  limitations 
in  favor  of  heirs,  see  Limitation  of 
Actions,  334. 

Specific  performance  of  illegal  contract  as 
to  distribution  of  property,  see  Specif- 
ic Performance,  28. 

Specific  performance  of  agreement  that 
child  shall  inherit  from  promisor,  see 
Specific    Performance,    71-76. 

Construction  of  statutes  of  descent,  see 
Statutes,  245. 

Tax  on  right  to  take  property  by,  see  Taxes, 
V. 

Direction  of  verdict  in  action  by  heir  to  re- 
cover distributive  share  of  estate,  see 
•  Trial,  734. 

Title  derived  through  deeds  from  heirs,  see 
Vendor  and  Purchaser,  35. 

As  to  devise  or  bequest  of  property,  see 
Wills,  III. 

Partial  intestacy,  see  Wills,  III.  f. 

Applicability  of  doctrine  of  equitable  con- 
version in  determining  distributive 
share  of  widow  failing  to  elect  to  take 
under  will,  see  Wills,  372. 

Competency  as  witness  in  controversy  over 
succession  to  estate,  see  Witnesses,  I. 


I.  Right  to  inherit. 

a.  Who  entitled  generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Right  of  child  not  mentioned  in  or  disin- 
herited by  will  to  inherit,  see  Wills, 
III.  c. 

Time  of  determining  heirs  who  take  under 
will,  see  Wills,  172-177. 

Effect  of  declaration  in  will  as  to  provision 
for  one  of  testator's  heirs  to  prevent 
him  receiving  his  due  share  in  intestate 
property,  see  Wills,  184. 

1.  As  matter  of  intention,  ascertained 
by  application  of  the  rules  of  interpretation 
and  construction,  rather  than  as  matter  of 
law,  a  deed  by  which  land  is  granted,  bar- 
gained, and  sold,  in  fee  simple,  to  one  person 
for  the  use  of  another,  separates  the  legal 
from  the  equitable  title  in  fee  simple,  and 
vests  the  former  in  the  trustee  and  the  latter 
in  the  cestui  que  trust,  and  each  is  then 
governed  by  the  laws  ot  descent,  and,  on 
the  death  of  the  party  in  whom  it  is  vested, 
goes  to  his  heirs.  Blake  v.  O'Neal,  i6:  1147, 
61  S.  E.  410,  63  W.  Va.  483. 

2.  The  completion,  after  the  death  of 
one  who  had  contracted  for  real  estate,  paid 
a  small  portion  of  the  purchase  money,  and 
taken  a  bond  for  title,  of  the  contract,  by 
payment  of  the  balance  of  the  purchase 
money  out  of  profits  from  the  property, 
which  became  the  homestead  of  the  widow 
and  child,  and  money  furnished  by  the  wid- 
ow, and  conveyance  to  the  child  by  the 
vendor,  renders  the  property  a  new  acqui- 
sition by  the  child,  and  not  an  ancestral 
estate,  and  therefore,  upon  the  death  of  the 
child  without  issue,  the  descent  will  be  to 
Digest  1-52  I<.R.A.(N.S.) 


his  heirs,  uncontrolled  by  the  fact  that  the 
equitable  title  was  acquired  through  his 
father.  Hill  v.  Heard,  42:  446,  148  S.  W. 
254,  104  Ark.  23.  (Annotated) 

3.  Cousins  do  not  inherit  immediately 
from  each  other,  but  only  mediately  tlirough 
the  parents  of  each,  and  children  cannot  in- 
herit immediately  from  a  cousin  of  their 
parent.  Cramer  v.  McCann,  37:  108,  112 
Pac.  832,  83  Kan.  719. 

4.  Under  a  statute  providing  that  the 
personal  estate  of  one  dying  intestate  with- 
out wife  or  child  shall  be  distributed  "to 
the  next  of  kindred  in  equal  degree,  of  the 
intestate  and  their  representatives,  and  if 
after  the  death  of  the  father  any  of  his 
children  shall  die  intestate  without  wife  or 
child,  in  the  lifetime  of  the  mother,  every 
brother  or  sister  and  their  representatives 
shall  have  equal  shares  with  her,"  the  fath- 
er of  such  intestate  takes  the  whole  per- 
sonal estate,  to  the  exclusion  of  the  mother. 
Lewin  v.  Lewin,  1  B.  R.  C.  556,  36  N.  B.  365. 

(Annotated) 

5.  There  is  nothing  in  the  language  or 
object  of  the  Married  Women's  Properly 
Act,  by  force  of  which  a  wife  controls  and 
holds  her  property  in  all  respects  as  if  she 
were  unmarried,  which  alters  the  construc- 
tion of  the  statute  of  distribution  by  which 
the  father  is  considered  as  the  sole  next  of 
kindred  of  a  child  dying  intestate  without 
wife  or  child,  to  the  exclusion  of  the  mother. 
Lewin  v.  Lewin,  1  B.  R.  C.  556,  36  N.  B. 
365. 

Rights  of  half  blood. 
See  also  infra,  12. 

6.  Brothers  and  sisters  of  the  half 
blood  of  the  ancestor  are  included  in  a  stat- 
utory provision  for  descent  of  ancestral 
real  estate  to  "brothers  and  sisters,"  where 
that  term  is  used  without  limitation. 
Stockton  v.  Frazier,  26:  603,  90  N.  E.  168, 
81  Ohio  St.  227.  (Annotated) 

7.  The  joining  by  one  of  several  chil- 
dren in  a  deed  of  property  inherited  from 
their  father,  to  a  stranger,  for  the  purpose 
of  securing  a  title  to  himself  in  the  whole 
property,  which  was  done  under  the  errone- 
ous belief  that  he  could  not  take  title  di- 
rectly from  the  coheirs,  does  not  change  the 
character  of  the  title  held  by  him  as  heir 
from  inheritance  to  purchase,  and  therefore 
it  will  descend  under  the  statute  providing 
for  inherited  land  descending  to  heirs  of 
the  half  blood  as  well  as  of  the  whole 
blood,  and  not  under  the  provision  for  the 
descent  of  land  secured  by  purchase;  at 
least  where  the  intention  of  the  parties  was 
that  he  should  not  alienate  the  property, 
but  permit  it  to  return  to  the  cograntors 
at  his  death.  Dudrow  v.  King,  39:  955,  83 
Atl.  34,  117  Md.  182.  (Annotated) 
Murderer   of   ancestor. 

8.  A  conviction  of  manslaughter  does 
not  come  within  a  statute  forbidding  an 
heir  to  inherit  any  portion  of  the  estate  of 
an  ancestor  for  whose  murder  he  has  been 
convicted,  where  by  statute  technical  words 
are  to  receive  their  technical  meaning  in 
statutory  construction.  Re  Kirby,  39:  1088, 
121  Pac"  370,  162  Cal.  91.  (Annotated) 


DESCENT  AND  DISTRIBUTION,  I.  b— d. 


921 


9.  The  court  cannot  ingraft  an  excep- 
tion upon  a  plain  provision  of  the  statute 
of  descent  because  the  distributee  has  mur- 
dered the  ancestor  to  secure  possession  of 
the  property.  McAlister  v.  Fair,  3:  726,  84 
Pac.  112,  72  Kan.  533.  (Annotated) 

9a.  The  word  "widower,"  in  a  statute 
providing  that  a  M'idower  shall  inherit  one 
half  the  property  of  his  childless  wife, 
means  one  who  is  reduced  to  that  condition 
by  the  ordinary  and  usual  vicissitudes  of 
life,  and  not  one  who,  by  felonious  act,  has 
himself  created  that  condition.  Perry  v. 
Strawbridge,  16:  244,  108  S.  W.  641,  209 
Mo.  ,621. 

9b.  Construction  of  a  statute  giving  a 
widower  one  half  the  property  of  his  child- 
less wife  as  not  applying  to  one  who  mur- 
ders his  wife  is  not  prevented  by  a  con- 
stitutional provision  that  no  conviction  can 
work  forfeiture  of  estate.  Perry  v.  Straw- 
bridge,  16:  244,  108  S.  W.  641,  209  Mo.  621. 

9c.  A  statute  giving  the  widower  of  a 
childless  wife  one  half  the  estate  of  which 
she  dies  seised  does  not  operate  in  favor  of 
one  who  murders  his  wife,  where  the  legis- 
lature has  expressly  adopted  the  common 
law  with  its  maxim  that  no  one  shall  protit 
by  his  own  wrong.  Perry  v.  Strawbridge, 
16:  244,  108  S.  W.  641,  209  Mo.  621. 

10.  A  husband  is  not  precluded  from  in- 
heriting from  his  wife  by  the  fact  that  he 
murdered  her,  where  no  intention  appears 
that  the  murder  was  committed  for  the 
purpose  of  securing  her  property,  under  a 
statute  relating  to  the  descent  of  property 
which  provides  in  plain  and  peremptory 
language  that  a  husband  shall  inherit  from 
his  deceased  wife,  and  no  exception  is  made 
on  account  of  criminal  conduct.  Holloway 
V.  McCormick,  50:  536,  136  Pac.  1111,  41 
Okla.  1. 

h.  Effect  of  alienage. 

(See  also '  same   heading   in   Digest   L.R.A. 
l-W.) 

Purchase  by  or  from  alien,  see  Aliens,  3,  4. 

11.  Under  a  statute  providing  that  a 
nonresident  alien  shall  not  be  capable  of 
acquiring  title  to  land  by  descent,  resident 
citizens  cannot  inherit  lands  through  the 
operation  of  the  statute  of  descent  and 
distribution  when  they  must  trace  their 
descent  to  a  cousin  of  their  parents  who  is 
an  alien  at  the  time  of  his  death.  Cramer 
V.  McCann,  37:  108,  112  Pac.  832,  83  Kan. 
719. 

c.  Effect  of  illegitimacy  or  slavery. 

(See  also   same   heading   in  Digest  L.R.A. 
1-10.) 

As  to   legitimation   of  child   generally,   see 
Parent  and  Child,  II. 

12.  A  statute  giving  an  estate  to  the 
brothers  and  sisters  of  an  intestate  dying 
without  issue  or  father  or  mother,  and  the 
Digest  1-52  Ii.R.A.(N.S.) 


descendants  of  such  as  are  dead,  and  pro- 
viding that  kindred  of  the  half  blood  shall 
inherit  ec^ually  with  those  of  the  whole 
blood,  does  not  include  descendants  of  ille- 
gitimate brothers  and  sisters.  Truelove  v. 
Truelove,  27:  220,  86  N.  E.  1018,  172  Ind. 
441.  (Annotated) 

13.  Children  of  a  deceased  illegitimate 
child  cannot  inherit  from  a  legitimate  child 
of  their  grandmother  where  their  parent 
and  grandmother  are  dead,  and  the  grand- 
mother, if  living,  would  have  inherited  the 
property,  under  a  statute  providing  that 
illegitimate  children  shall  inherit  from  their 
mother,  and  through  the  mother  if  dead, 
any  property  or  estate  which  she  would,  if 
living,  have  taken  from  any  other  person. 
Truelove  v.  Truelove,  27:  220,  86  N.  E.  1018, 
172  Ind.  441. 

14.  The  death  of  an  illegitimate  before 
his  mother  does  not  prevent  his  children 
from  inheriting  from  the  latter,  under  a 
statute  providing  that  every  illegitimate 
child  shall  be  considered  as  the  heir  of  his 
mother,  and  shall  inherit  her  estate  in  like 
manner  as  if  born  in  lawful  wedlock. 
Goodell  V.  Yezerski,  40:  516,  136  N.  W.  451, 
170  Mich.   578. 

15.  A  letter  written  by  the  father  of  an 
illegitimate  child  to  its  mother,  referring  to 
the  child  by  its  first  name,  and  requesting 
the  mother  to  take  good  care  of  "my  boy," 
is  not  a  sufficient  acknowledgment  of  pa- 
ternity to  establish  the  right  of  heirship  to 
the  father  by  his  illegitimate  offspring,  un- 
der a  statute  providing  that  every  illegiti- 
mate child  13  an  heir  of  the  person  who, 
in  writing  signed  in  the  presence  of  a 
competent  witness,  acknowledged  himself  to 
be  the  father  of  such  child,  although  the 
letter  was  written  by  a  third  person  at  the 
dictation  of  the  father.  Holloway  v.  Mc- 
Cormick, 50:  536,  136  Pac.  1111,  41  Okla. 
1. 

d.  Effect  of  adoption. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Construction  of  adoption  statute,  see  Stat- 
utes, 262. 

Competency  of  witness  to  prove  contract  of 
adoption,  see  Witnesses,  56. 

16.  The  rights  of  a  woman  who  marries 
a  man  with  an  adopted  child,  in  his  estate, 
are,   although   she  does   not  consent  to   the 
adoption,  the  same  as  though  the  child  was 
the    fruit   of    the   marriage.     Batchelder   v. 
Walworth,  37:  849,  82  Atl.  7,  85  Vt.  322. 
By   adopted    children. 
Right  of  child  adopted  in  one  state  to  in- 
herit real  estate  in  another,  see  Con- 
flict OF  Laws,  122-125. 
Decision  that  foreign   adoption  gives   child 
no  right  of  inheritance  within  state,  see 
CouBTS,  309. 
Estoppel  to  contest  rights  of  adopted  child, 

see  Estoppel,  262. 
Injunction    to    protect    rights    of    adopted 
child,  see  Injunction,  413. 


922 


DESCENT  AND  DISTRIBUTION,  I.  e. 


Specific  performance  of  agreement  to  adopt 
child,  see  Specific  Pb^ifokmanck,  29, 
37. 

Specific  performance  of  agreement  to  give 
full  rights  of  heirship  to  adopted  child, 
see  Specific  Performance,  71. 

Retrospective  effect  of  statute  as  to  rights 
of  adopted  children,  see  Statutes,  303. 

As  to  adoption  of  child  generally,  see  Pab- 
ENT  AND  Child,  III. 

17.  Under  the  Kansas  Act  providing  for 
the  adoption  of  children,  the  adopted  child 
of  a  prior  deceased  daughter  of  an  intestate 
inherits  a  portion  of  the  estate  of  such 
intestate  through  her  adopting  mother. 
Riley  v.  Day,  44:  296,  129  Pac.  524,  88  Kan. 
503. 

18.  Under  a  statute  permitting  a  person 
to  adopt  a  child  as  his  heir,  an  adopted 
child  is  not,  by  right  of  representation,  en- 
titled, after  the  death  of  his  adoptive 
parent,  to  take  the  intestate  estate  of  the 
latter's  brother  as  his  heir.  Hockaday  v. 
Lynn,  8:  117,  98  S.  W.  585,  200  Mo.  456. 

(Annotated) 

19.  An  adopted  child  will  not  inherit 
from  the  mother  of  its  deceased  foster  par- 
ent, under  a  statute  which  provides  that 
the  adopted  child  shall  become  the  heir  at 
law  of  the  parent  adopting  it,  and  be  as 
capable  of  inheriting  as  though  it  was  the 
child  of  such  parent.  Merritt  v.  Morton, 
33:  139,  136  S.  W.  133,  143  Ky.  133. 

( Annotated ) 
Through,    adopted    children. 

20.  The  right  of  a  natural  parent  to  in- 
herit from  his  child,  which  has  been  adopt- 
ed by  another,  under  the  general  statutes 
of  descent,  is  not  changed  in  case  the  child 
dies  unmarried  without  issue  after  the  death 
of  its  adoptive  parent,  by  statutes  giving 
adopted  children  the  rights  of  those  born  in 
lawful  wedlock,  and  declaring  that  the 
rights  of  inheritance  existing  between  the 
parent  and  child  by  adoption  shall  be  the 
same  as  exist  between  parent  and  child  by 
lawful  birth,  and  therefore  where,  by  stat- 
ute, the  parent  is  first  in  line  of  descent 
from  a  child  dying  unmarried  without  is- 
sue, such  parent  will  take  property  inherit- 
ed from  the  adoptive  parent,  in  preference 
to  the  latter's  children  by  lawful  birth. 
Baker  v.  Clowser,  43:  1056,  138  N,  W,  837, 
158   Iowa,  156.  (Annotated) 

21.  The  father  in  blood  of  an  adopted 
child  does  not  inherit  from  him  even  though 
the  adopting  parent  is  dead,  where  the  stat- 
ute provides  that  upon  adoption  the  child 
shall  be  regarded  and  treated  in  all  respects 
as  the  child  of  the  parent  adopting  him, 
and  that  thereafter  the  adopting  parent  and 
the  child  shall  sustain  towards  each  other 
the  legal  relation  of  parent  and  child  and 
have  all  the  rights  of  that  relation.  Re 
Jobson,  43:  1062,  128  Pac.  938,  164  Cal.  312. 

22.  Under  a  statute  providing  that  the 
same  right  of  inheritance  shall  exist  be- 
tween the  parties  to  an  adoption  as  though 
the  party  adopted  had  been  the  legitimate 
child  of  the  person  making  the  adoption,  a 
child  of  the  person  adopted  will,  in  case 
of  the  latter's  death  before  that  of  the  per- 
Digest  1-52  I..R.A.(N.S.) 


son  making  the  adoption,  inherit  from  the 
adopting  parent  by  right  of  representation. 
Batchelder  v.  Walworth,  37:  849,  82  Atl.  7, 
85  Vt,  322, 

23.  The  use  of  the  words  "child"  and 
"issue"  in  the  statute  governing  tlie  descent 
of  property  does  not  prevent  the  applica- 
tion of  the  rules  of  descent  to  adopted  chil- 
dren so  as  to  permit  the  issue  of  deceased 
ones  to  represent  them,  where  the  statute 
of  adoption  creates  the  same  rights  of  in- 
heritance between  the  parties  as  though 
the  person  adopted  had  been  the  legitimate 
child  of  the  person  making  the  adoption. 
Batchelder  v.  Walworth,  37:  849,  82  Atl.  7, 
85  Vt.  322. 

e.  Rights  of  huuhand  and  wife. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Effect  of  murder  of  wife  by  husband  on  hia 
right  to  inherit  from  her,  see  supra, 
9a-10. 

Right  of  husband  to  inherit  where  his  mar- 
riage was  invalid  under  laws  of  state 
where  property  was  situated,  see  Con- 
flict OF  Laws,  78, 

Husband's  estate  by  curtesy,  see  Cubxesy, 

As  to  dower  rights  of  wife,  see  Dowek, 

Election  to  waive  distributive  rights,  see 
Election, 

Estoppel  to  deny  that  woman  is  widow  of 
decedent,  see  Estoppei.,  30, 

Allowance  to  widow,  see  Executors  and 
Administrators,  116,  117, 

Transfer  by  husband  or  wife  in  fraud  of  the 
other's  rights,  see  Husband  and  Wife, 
II.  j. 

Survivor's  rights  in  community  property, 
see  Husband  and  Wife,  85. 

Wife's  right  in  insurance  on  husband's  life, 
see  Insurance,  VI,  d,  2,  b. 

Effect  of  adoption  of  child  on  widow's  rights 
in  husband's  estate,  see  Parent  and 
Child,  40, 

Liability  of  community  property  to  succes- 
sion tax,  see  Taxes,  314-316, 

Rights  of  husband  under  wife's  will,  see 
Wills,  206. 

Rights  of  widow  in  her  husband's  estate 
where  she  fails  to  elect  to  take  under 
will,  see  Wills,  III.  i. 

Competency  of  husband  or  wife  as  witnesses, 
see  Witnesses,  47,  48. 

24.  A  woman  leaving  children  only  by 
her  first  marriage  is  not  without  issue  as 
to  property  purchased  after  the  second  mar- 
riage, within  the  meaning  of  statutes  fixing 
the  rights  of  her  surviving  husband  in  the 
property.  Husted  v.  Rollins,  42:  378,  137 
N.  W,  462,  156  Iowa,  546. 

24a.  Right  to  curtesy  is  not  a  condition 
to  the  benefit  of  a  statute  entitling  a 
husband  to  one  half  of  the  estate  of  which 
his  childless  wife  dies  seised.  Perry  v 
Strawbridge,  16:  244,  108  S.  W.  641,  209 
Mo.  621, 

25.  The  value  of  the  estate  of  an  intes- 
tate   for   the    purpose   of    determining    the 


DESCENT  AND  DISTRIBUTION,   II.— DESCRIPTION. 


923 


rights  of  the  widow  under  a  statute  provid- 
ing that  the  real  and  personal  estate  of 
■every  intestate  leaving  a  widow,  but  no  is- 
sue, shall,  in  all  cases  where  the  net  value 
of  such  real  and  personal  estate  shall  not 
exceed  a  certain  sum,  belong  to  his  widow 
absolutely  and  exclusively,  is  to  be  taken 
generally  as  of  the  time  of  his  death;  and 
the  widow  is  therefore  entitled  to  a  con- 
tingent reversionary  interest  forming  part 
of  such  an  estate,  although  such  interest 
when  it  falls  into  possession  proves  to  be 
worth  much  more  than  the  sum  named  in 
the  statute.  Re  Heath,  3  B.  R.  C.  967, 
[1907]  2  Ch.  270.  Also  Reported  in  76  L. 
J.  Ch.  N.  S.  450,  97  L.  T.  N.  S.  41. 

( Annotated ) 

26.  The  fact  that  the  only  means  pro- 
vided by  a  statute  for  valuing  an  estate  are 
applicable  to  an  estate  in  possession  does 
not  exclude  interests  in  reversion  from  the 
operation  of  the  general  words  of  its  first 
section,  which  provides  that  the  real  and 
personal  estate  of  every  intestate  leaving 
a  widow,  but  no  issue,  shall,  in  all  cases 
where  the  net  value  of  such  estate  shall  not 
exceed  a  certain  sum,  belong  to  his  widow 
absolutely  and  exclusively.  Re  Heath,  3  B. 
R.  C.  967,  [1907]  2  Ch.  270.  Also  Reported 
in  76  L.  J.  Ch.  N.  S.  450,  97  L.  T.  N.  S.  41. 
Effect   of   separation   agreement. 

27.  The  right  of  inheritance  in  property 
conveyed  to  a  wife  under  a  separation  agree- 
ment is  not  to  be  denied  the  husband,  unless 
an  intention  so  to  do  is  expressed  or  clear- 
ly inferable  from  the  terms  of  the  instru- 
ment. Dennis  v.  Perkins,  43:  1219,  129  Pac. 
165,  88  Kan.  428. 

//.  Property    subject    to    descent    and 
distribution. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Right  which  will  descend  to  heirs  acquired 
by  burying  dead  bodies  in  private 
grounds,  see  Easements,  32. 

Mutual  benefit  insurance  as  part  of  estate 
of  insured  where  no  beneficiary  is 
named,  see  Insurance,  842,  845,  846. 

28.  Timber  reserved  by  a  grantor  of  real 
estate,  upon  his  death,  passes  to  his  heir 
at  law.  Hicks  v.  Phillips,  47:  878,  142  S. 
W.  394,  146  Ky.  305. 

29.  The  possessory  right  of  the  locator  of 
a  mining  claim,  who  has  not  applied  for  a 
patent,  does  not,  under  the  Federal  law  giv- 
ing locators,  their  heirs  and  assigns,  the 
right  of  possession,  go  directly  to  the  heirs 
of  the  locator  upon  his  death,  as  beneficia- 
ries of  the  government,  but  they  take  by 
descent  from  the  locator;  so  that  the  estate 
is  subject  to  the  jurisdiction  of  the  probate 
court.  O'Connell  v.  Pinnacle  Gold  Mines  Co. 
4:  919,  140  Fed.  854,  72  C.  C.  A.  645. 

( Annotated ) 

30.  That  the  children  of  a  trustee  are 
infants  does  not  prevent  the  trust  estate 
from  descending  upon  them  in  case  of  the 
death  of  the  trustee  charged  with  the  trust. 
Cameron  v.  Hicks,  7:  407,  53  S.  E.  728,  141 
N.   C.   21. 

31.  The  possibility  of  reverter  under  a 
Digest  1-52  L.R.A.(N.S.) 


deed  of  property  to  a  church  with  the  pro- 
viso that  it  should  revert  to  the  grantor 
whenever  it  ceased  to  be  used  for  church 
purposes  is  within  the  meaning  of  a  statute 
providing  that  estates,  both  real  and  per- 
sonal, of  persons  dying  intestate,  "shall  de- 
scend," and  is  cast  upon  the  grantor's  heirs 
at  the  time  of  his  death,  and  not  at  the  time 
that  the  use  of  the  property  ceases.  North 
V.  Graham,  18:  624,  85  N.  E.  267,  235  111. 
178.  (Annotated) 

///.  Nature  and  incidents  of  estate. 

(See  also  same  heading  in  Digest  L.B.A. 
1-10.) 

Administrator's  right  to  reimbursement 
from  distributee,  see  Executors  and 
Administrators,  119-121. 

32.  The  title  of  an  heir  is  not  absolute 
until  after  the  process  of  administration  is 
concluded,  and  may  be  devested  by  such 
process.  Bickford  v.  Stewart,  34:  623,  104 
Pac.  263,  106  Pac.  1115,  55  Wash.  278. 
Debts  of  decedent. 

Sufiiciency  of  evidence  aa  to,  see  Evidence, 
2308. 

Liability  of  personal  representative  who  is 
also  a  devisee  for  debts  of  testator,  see 
Executors  and  Administrators,  98. 

Liability  of  devisee  of  homestead  for  de- 
cedent's debts,  see  Homestead,  20. 

Effect  of  devisee's  surrender  of  sufficient 
personalty  to  pay  all  testator's  debts 
on  liability  to  contribution  towards 
party  wall,  see  Wills,  107. 

33.  Distributees  of  a  deceased  bank  di- 
rector cannot  be  held  liable  for  losses  oc- 
curring through  his  misfeasance  in  office,  un- 
less assets  are  shown  to  have  come  to 
their  hands.  Emerson  v.  Gaither,  8:  738,  64 
Atl.  26,  1^3  Md.  664. 


DESCRIPTION. 


Of  package  of  freight,  see  Carriers,  816- 
819. 

Of  property  mortgaged,  see  Chattel  Mort- 
gage, 11.  b;  Mortgage,  I.  c. 

Of  land;  sufficiency  to  satisfy  statute  of 
frauds,  see  Contracts,  285-287. 

Of  parties  to  deed,  see  Deb3)S,  II.  b. 

Of  property  conveyed,  see  Deeds,  II.  c;  Spe- 
CD  ic  Performance,  ,  23,  24 ;  Wills, 
194-197. 

Of  property  in  judgment,  see  Juikjment,  36. 

Of  parties  in  judgment,  see  Judgment,  37. 

Of  property  in  lease,  see  Landlord  and 
Tenant,  9. 

Of  parties  in  pleading,  see  Pleading,  II.  c. 

Of  land  in  assessment  roll,  see  Taxes,  209. 

Of  beneficiary  in  will,  see  Wills,  III.  b. 

Of   property   devised,    see   Wills,    194-197. 

Reformation  of  instrument  because  of  mis- 
take in  description,  see  REaj'ORMATioN 
OF  Instruments,  7-9. 

Warranty  by,  see  Sale,  II.  b. 


924 


DESECRATION— DETINUE 


DESECRATION. 

Of  burial  ground,  see  Cemetebies,  6,  7;  In- 
junction, 113,  114. 


DESERT   ENTRY. 


Dedication  by  desert  entryman  of  water  to 
public  use,  see  Dedication,  4,   13,  22. 

Appropriation  of  water  for,  see  Watebs, 
235. 


DESERTION. 


As  ground  for  divorce,  see  Divorce  and 
Separation,  III.  b. 

By  father  of  children  after  divorce,  see  Di- 
vorce AND  Separation,  158. 

Of  minor  from  Navy,  see  Habeas  Corpus, 
75. 

Criminal  liability  for  desertion  of  wife,  see 
Husband  and  Wife,  IV. 

Right  of  deserted  wife  to  claim  community 
rights,  see  Husband  and  Wib'E,  80. 


DESIGN. 

Selling  stove  copied  from  design  of  another 
as  unfair  competition,  see  Unfair 
Competition,  2,  3. 

<»* » 


DESK. 

Desk  in  office  of  elevator  as  within  chattel 
mortgage  on  elevator,  see  Chattel 
Mortgage,  9,  59. 


DESTINATION. 


Leaving  passenger  at,  see  Carriers,  II.  i. 

Failure  of  passenger  to  reach,  because  of 
refusal  of  information  by  carrier's  em- 
ployees, see  Damages,  72. 

Sufficiency  of  evidence  as  to  destination  of 
car,  see  Evidence,  2310. 


DESTITUTE. 


When  person  is  "destitute  in  means  of  sup- 
port" within  meaning  of  insurance  poli- 
cy, see  Insurance,  189. 


DESTRUCTION. 


Of  property,  police  power  as  to,  see  Con- 
stitutional Law,  651-653. 

Of  building  before  completion,  see  Con- 
tracts, 652,  653. 

Digest  1-52  I<.R.A.(N.S.) 


Of  leased  building,  see  Contracts,  719; 
Landlord  and  Tenant,  90,  91,  191,  192. 

Of  deeds,  see  Deeds,  II.  g. 

Of  evidence,  presumptions  from,  see  Evi- 
dence, II.  e,  9. 

Of  property,  to  protect  health,  see  Health, 
IV. 

Of  property,  as  crime,  see  Indictment,  etc., 
61. 

Of  intoxicating  liquors,  see  Intoxicatino 
Liquors,  III.  h. 

Of  property  as  nuisance,  see  Municipal 
Corporations,  142,  144,  153,  154,  162; 
Nuisances,   168,   169,   171-173. 

Of  building,  liability  of  municipality  for, 
see  Municipal  Corporations,  431,  437. 

Of  property  replevied,  see  Replevin,  35. 

Of  property  sold,  before  delivery,  see  Sale, 
14,  17. 

Of  property  sold  with  retention  of  title,  be- 
fore payment  of  purchase  price,  see 
Sale,  145,  147,  148,  151. 

Of  revoking  will,  effect  on  prior  will,  see 
Wills,  45. 

Insurance  against  loss  by,  see  Insurance. 

Revocation  of  will  by,  see  Wills,  46-52. 


DETAINER. 


Forcible  detainer,  see  Forcible  Entry  aot> 
Detainer. 


DETECTIVES. 


Liability  for  conspiracy  in  shadowing  per- 
son, see  Conspiracy,  11. 

Ratification  of  irregular  employment  of,  see 
C0UNTIB5S,  34. 

Apparent  co-operation  of,  see  Criminal 
Law,  58,  59. 

Liability  for  arrest  made  by,  see  False 
Imprisonment,  22. 

Power  of  municipality  to  employ,  see  Mu- 
nicipal Corporations,  35. 

Parties  defendant  in  action  for  illegal  shad- 
owing by,  see  Parties,  155. 

Authority  to  employ,  see  Principal  and 
Agent,  49. 


DETERMINABLE  FEE. 

Creation   of,   by   lease,   see   Landlord  Am 

Tenant,  108. 
Creation  of,  by  will,  see  Wills,  242-246. 

♦ » » 


DETINUE. 


See  Replevin. 


DETONATING  CAP— DIPLOMA. 
DETONATING  CAP. 


925 


As  burglar's  tool  within   meaning  of  stat- 
ute forbidding  possession  of,   see  BuB- 

GLABY,   1. 


DEVASTAVIT, 


See  Waste. 

#>» 

DEVESTING  TITLE. 

See  Descent  and  Distbibution,  32. 


DEVIATION. 


From  route  by  carrier,  see  Carrieks,  748- 
751,  875,  885,  916,  917. 


DEVICE. 

Slot  machine  as  gambling  devise,  see  Gam- 
ing, 6-9,  18,  20. 

Pool  table  as  gaming  devise,  see  Gaming, 
10,  11. 

Selling  pools  on  horse  races  as  gambling  de- 
vice, see  Gaming,  22-26. 

Opinion  evidence  as  to  practicability  of,  see 
Evidence,  1187. 

Sufficiency  of  evidence  to  show  worthless- 
ncss  of,  see  Evidence,  2335. 


DEVISE. 


See  Wills,  III. 


DEVISEE. 


Action  by,  to  set  aside  deed  of  testator  on 
ground  of  incompetency,  see  Action  or 
Suit,  14,  15. 


DICE. 


Sending  through  mails  offer  to  sell  loaded 
dice,  see  Postoffice,  11. 


DICTA. 

See  also  Ootjbts,  305-308. 

1.  An  additional  reason  for  a  decision 
brought  forward  after  the  case  has  been 
disposed  of  on  one  ground  cannot  be  re- 
garded as  dictum.  Chicago,  B.  &  Q.  R. 
Co.  V.  Board  of  Supervisors,  31:  11 17,  182 
Fed.  291,  104  C.  C.  A.  573. 


DIES  NON. 

Sunday  as,  see  Sunday,  11. 


DIKES. 

Deflecting  current  of  river  by,  see  Limita- 
tion OF  Actions,  204. 

Liability  of  state  institution  for  injury  re- 
sulting from  construction  of,  see  Plead- 
ing, 154;   State  Institution,  7. 

Obstruction  of  surface  waters  by,  see  Wa- 
ters, 266. 


DILATION    OF    THE    HEART. 

Liability    of    insurer    against    accident    for 
death  caused  by,  see  Insurance,  743. 


DILIGENCE. 


DIAMONDS. 

Breach  of  warranty  on  sale  of,  see  Sale,  97. 


—       DIARY. 

Admissibility  in  evidence  of  entries  in,  see 
Appeal  and  Ebbob,  1109;  Evidence, 
864. 

Digest  1-52  L.R.A.(N.S.) 


In  seeking  change  of  judges,  see  Judges,  22. 
In  seeking  evidence,  see  New  Trial,  57-59. 
As  question  for  jury,  see  Trial,  II.  c,  3. 


DINING  CAR. 


Contract  by  superintendent  of   dining  car 

department,  see  Corporations,  149. 
Duty  as  to  food  served  in,  see  Food,  21. 


♦  «  » 


DIP. 

Right  to  follow,  see  Mines,  22. 
4  «  » 


DIPLOMA. 


Mandamus  to  compel  issue  of,  see  Appeal 
AND  Error,  429;  Mandamus,  92-94. 


926 


DIPLOMATIC  AND  CONSULAR  OFFICERS— DISCOMFORT. 


DIPLOMATIC    AND    CONSULAR 
OFFICERS. 

Jurisdiction  over  settlement  of  estate,  see 
Conflict  of  Laws,  119;  Executobs 
AKD  Administbatobs,  16. 


DIRECTION  or  VERDICT. 

Prejudicial  error  in,  see  Appeal  and  Ebbob, 

1520-1528. 
Construction   of   motion   for,   see  Motions 

AND  Orders,  5. 
Waiver  of  erroneous  denial  of  motion  for, 

see  Appeal  and  Ebbob,  871,  872. 
In  general,  see  Trial,  II.  d,  3. 


DIRECTORS. 


Of  banks,  see  Banks,  16,  45-55. 

Of  chamber  of  commerce,  see  Chambeb  of 

COMMEBCE,  4. 

Of  social  club,  see  Clubs,  7-9. 

Of    corporations,    generally,    see    Cobpoba- 

TioNs,  rv.  g. 

Imputing  knowledge  of,  to  corporation,  see 
Notice,  50,  55,  56,  58. 

4  »  » 


DIRECTORY". 

See  Business  Dieectoby. 

» * » 


DIRECTORY  PROVISIONS. 

Of  statute,  see  Statutes,  252-257. 

^•» 

DIRECT  TAX. 
Occupation  tax  as,  see  License,  79. 


DIRTY    SLUT. 


Actionability  of  charge  of  being,  see  Libel 
AND  Slander,  37. 


DISABILITIES. 


Of  married  woman,  see  Husband  and  Wife:, 

I.  b. 
Of    incompetent   person,    see   Incompetent 

Pebsons. 
Of  infants,  see  Infants,  I.  d. 
Effect  of  disability  of  adverse  claimant  on 

presumption  of  ouster  from  possession, 

see  Evidence,  634. 
Effect   of,    on    running    of    limitations,    see 

Limitation  of  Actions,  II.  m. 
Digest  1-52  L.R.A.(N.S.) 


DISAFFIRMANCE. 

Of  infant's  contract,  see  Infants,  I.  d,  2,  b. 
♦  >» 


DISBARMENT. 

Of  attorneys,  see  Attorneys,  I.  h, 

♦-•-♦ 

DISBURSEMENTS. 

Reimbursing  personal  representative,  see 
Executobs  and  Administbatobs,  66, 
119-121. 


DISCHARGE. 


In  bankruptcy,  see  Bankbuptct,  V. 

Of  property  seized  in  attachment  proceed- 
ings, see  ATTACHilENT,  III.  c. 

Of  indorser,  see  Bills  and  Notes,  III.  c. 

Of  lien  of  chattel  mortgage,  see  Chattel 
Mortgage,  30. 

Of  chattel  mortgage,  see  Chattel  Mobt- 
GAGE,  51. 

Of  accused  person  on  failure  to  prove  case 
as  stated  in  indictment,  see  Cbiminal 
Law,  67. 

Of  jury,  as  former  jeopardy,  see  Cbiminal 
Law,  191-200. 

Of  personal  representative,  see  ExEcxrroRS 
and  Administrators,  55. 

Of  guarantor,  see  Guaranty,  II. 

Of  patient  from  insane  asylum,  see  Incom- 
petent Persons,  21. 

Of  insolvent,  see  Insolvency,  VI. 

Of  one  joint  tort  feasor  by  release  of  others, 
see  Joint  Creditors  and  Debtors,  II. 

Of  judgment,  see  Judgment,  V. 

Of  employee,  see  Master  and  Servant,  I.  e. 

Of  mortgage,  see  Mortgage,  V. 

Of  pledge,  see  Pledge  and  Collateral  Se- 
curity, 11-14. 

Of  surety,  see  Principal  and  Surety,  I.  b. 

Of  teacher,  see  Schools,  II.  c. 

Of  jury,  see  Trial,  9,  10. 

Of  trust,  see  Trusts,  I.  f. 

From  covenant,  see  Covenants  and  Con- 
ditions, V. 

On  habeas  corpus,  see  Habeas  Corpus,  L  c. 


DISCLAIMER. 


Effect  of  disclaimer  of  easement  by  owner  of 
property  to  estop  purchaser  from  claim- 
ing  it,  see  Easements,  87. 

By  state,  of  title  to  tide  lands,  see  Watess, 
76. 


DISCOMFORT. 

As  nuisance,  see  Nuisances,  89. 


DISCONTINUANCE— DISCOVERY   AND  INSPECTION,  I. 


927 


DISCONTINUANCE. 

Of  action,  see  Dismissal  ob  Discontinu- 
ance. 

Of  eminent  domain  proceedings,  see  Emi- 
nent Domain,  149-151. 

Of  highway,  see  Highways,  V.;  Stbeet 
Railways,  12,  13. 


DISCOUNT. 


By  bank,  see  Banks,  IV,  c. 

Effect  of  provision  for,  on  negotiability  of 

note,  see  Bills  and  Notes,  64. 
Usury  in,  see  Usuky,  31. 


DISCO  VERTURE. 


Ratification  by  married  woman  after,  of 
note  executed  during  coverture,  see 
Husband  and  Wife,  35. 


DISCOVERY  AND  INSPECTION. 

7.  In  general,  1—27. 
II.  Physical  examination,  28. 
III.  Submitting  person  to  X-ray,  29. 

Effect  of  prayer  for,  to  give  jurisdiction  to 
compel  accounting,  see  Accounting,  5. 

Review  after  judgment  of  order  for,  see  Ap- 
peal AND  Ekrok,  11. 

Review  of  discretion  as  to,  see  Appeal  and 
Ekror,  639. 

Certiorari  to  review  order  of  inspection,  see 
Certioraei,  11,  12. 

Compelling  production  of  evidence  before 
committing  magistrate,  see  Cbiminal 
Law,  95. 

When  equity  will  take  jurisdiction  on 
grounds  of,  see  Equity,  9. 

Of  acts  of  corporation,  see  Equity,  112. 

Admissibility  of  affidavit  as  to  existence  of 
facts  in  alleged  reports,  where  permis- 
sion to  inspect  them  granted  by  court, 
has  been  refused,  see  Evidence,  783. 

Discovery  of  mining  claim,  see  Mines,  4. 

Sufficiency  of  allegations  in  bill  for,  see 
Pleading,  612. 

As  to  depositions,  see  Depositions. 

I.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  The  right  to  call  men  to  the  witness 
stand,  and  to  exami-ne  them  as  to  their  pri- 
vate affairs,  can  be  justified  only  on  the 
ground  that  courts  are  entitled  to  the  in- 
formation in  aid  of  proper  judicial  proceed- 
ings. State  V.  Milwaukee  Electric  R.  &  L. 
Co.  i8:  672,  116  N.  W.  900,  136  Wis.  179. 

2.  That  a  complaint  waives  an  answer 
under  oath  does  not  defeat  a  right  to  a 
discovery,  where  discovery  is  only  incidental 
Digest  1-52  I..R.A.(N.S.) 


to  other  relief  prayed  for.     Patek  v.  Patek, 
35:  461,  131  N.  W.   1101,  160  Mich.  446. 

3.  Equitable  jurisdiction  of  bills  of  dis- 
covery is  not  destroyed  by  the  fact  that  stat- 
utes provide  for  tlie  examination  of  tlie  par- 
ties in  actions  at  law.  Nixon  v.  Clear  Creelv 
Lumber  Co.  9:  1255,  43  So.  805,  150  Ala.  602. 

4.  Where,  in  an  action  by  a  township 
against  its  tax  collector  for  moneys  claimed 
to  have  been  collected  by  him,  a  discovery  is 
sought  as  to  what  persons  and  for  what 
purposes  and  upon  what  warrant  and  au- 
thority such  collector  paid  out  and  dis- 
bursed the  funds  of  the  township  from  time 
to  time,  such  discovery  relates  solely  to  mat- 
ters of  defense,  and  is  not  such  a  one  as  will 
give  jurisdiction  to  a  court  ©f  equity. 
Franklin  Twp.  v.  Crane  (N.  J.  Err.  k  App.) 
43:  604,  85  Atl.  408,  80  N.  J.  Eq.  509. 

5.  In  case  one  is  garnished  for  the  con- 
tents of  a  sealed  package  locked  in  a  safety 
deposit  box  in  his  possession,  the  court 
may,  to  determine  whether  or  not  the  par- 
cel is  subject  to  garnishment,  resort  to  any 
evidence  bearing  upon  the  matter  which  is 
available,  including  the  breaking  of  the 
package  and  inspection  of  its  contents,  un- 
der a  statute  providing  for  the  examina- 
tion of  the  garnishee  as  to  his  answer,  and 
the  proving  of  any  facts  not  stated  or  de- 
nied by  him,  and  the  taking  of  such  action 
in  accordance  with  proper  legal  proceedings 
as  will  enable  the  court  to  determine  the 
liability  of  the  garnishee.  Tillingliast  v. 
Johnson,  41:  764,  82  Atl.  788,  34  R.  I.  136. 

6.  One  seeking  specific  performance  of 
an  agreement  to  transfer  inventions  is  not 
entitled  to  an  order  for  a  discovery  be- 
yond what  he  suggests  by  his  allegations 
and  proof.  Reece  Folding  Mach.  Co.  v.  Fen- 
wick,  2:  1094,  140  Fed.  287,  72  C.  C.  A.  39. 

7.  The  publisher  of  a  libel  cannot  be  re- 
quired to  disclose  the  names  of  those  from 
whom  he  received  his  information  in  aid  of 
an  action  for  libel,  where  the  disclosure 
would  include  an  admission  of  his  own 
guilt,  and  therefore  subject  him  to  punish- 
ment for  misdemeanor.  Noyes  v.  Thorpe, 
12:  636,  62  Atl.  787,  73  N.  H.  481. 
Production  or  inspection  of  docu- 
ments. 

Contempt  in  refusing  to  produce  books,  see 
Appeal  and  Error,  70,  103;  Contempt, 
14,  36,  37. 

Finality  of  order  to  produce  books  and  pa- 
pers, see  Appeal  and  Error,  23. 

Securing  books  by  writ  of  sequestration,  see 
Constitutional  Law,  364. 

Right  of  accused  to  inspection  of  paper  used 
by  prosecuting  attorney  in  examining 
witnesses,  see   Criminal  Law,  72,   73. 

Right  of  one  accused  of  crime  to  inspect 
minutes  of  evidence  before  grand  jury, 
see  Criminal  Law,  73,  74. 

Privilege  against  compulsory  production  of 
books  or  documents,  see  Criminal  Law, 
107-118. 

Compelling  attorney  to  produce  papers  be- 
longing to  client  as  violation  of  rule  as 
to  confidential  comniimications,  see  Evi- 
db:nce,  1296,  1302. 


928 


DISCOVERY  AND  INSPECTION,  II. 


Mandamus  to  compel  vacation  of  invalid 
order  for,  see  Mandamus,  17. 

Sufficiency  of  description  in  subpoena  to  pro- 
duce documents,  see  Seabch  and 
Sei/ube,  16. 

Right  of  counsel  for  accused  to  see  paper 
put  into  hands  of  prosecuting  witness 
to  refresh  his  memory,  see  Witnesses, 
93. 

8.  Where  there  is  disobedience  to  a 
subpoena  duces  tecum,  the  court  has  juris- 
diction to  enforce  obedience  by  attachment, 
even  though  the  disobedience  is  not  wilful. 
King  v.  Daye,  3  B.  R.  C.  211,  [1908]  2  K.  B. 
333.  Also  Reported  in  77  L.  J.  K.  B.  N.  S. 
659,  72  J.  P.  269,  99  L.  T.  N.  S.  165. 

9.  A  .sealed  packet  may  be  a  "docu- 
ment," and  therefore  liable  to  production 
upon  a  subpoena  duces  tecum.  King  v. 
Daye,  3  B.  R.  C.  211,  [1908]  2  K.  B.  333. 
Also  Reported  in  77  L.  J.  K.  B.  N.  S.  659, 
72  J.  P.  269,  99  L.  T.  N.  S.  165. 

( Annotated. ) 

10.  The  fact  that  a  banker  has  received 
a  document  upon  the  terms  that  it  shall 
not  be  delivered  up  except  with  the  con- 
.sent  of  the  depositor  is  no  answer  to  a  sub- 
poena duces  tecum  requiring  the  banker  to 
produce  the  document.  King  v.  Daye,  3 
B.  R.  C.  211,  [1908]  2  K.  B.  333.  Also 
Reported  in  77  L.  J.  K.  B.  N.  S.  659,  72 
J.  P.  269,  99  L.  T.  N.  S.  165. 

11.  The  existence  of  described  documents, 
and  possession  or  control  of  them  by  the 
adverse  party,  must  be  affirmatively  proven 
as  conditions  precedent  to  the  granting  of 
an  order  for  an  inspection  and  copy  of  such 
documents,  under  a  statute  permitting  the 
granting  of  such  an  order.  Atchison,  T.  & 
S.  F.  R.  Co.  V.  Burks,  i8:  231,  96  Pac.  950, 
78  Kan.  515. 

12.  The  plaintiff  in  a  negligence  action  is 
entitled  to  an  order  for  the  discovery  of  a 
written  statement  relating  to  the  accident, 
a.nd  signed  by  him  as  a  marksman,  which 
has  been  obtained  from  him  by  an  agent  of 
the  defendant  with  a  view  to  the  possibility 
of  litigation.  Tobakin  v.  Dublin  Southern 
Dist.  Tramways  Co.  3  B.  R.  C.  926,  [1005]  2 
I.  R.  58. 

13.  A  party  in  an  action  to  recover  dam- 
ages for  personal  injuries  is  entitled  to  a 
discovery  of  such  facts  or  documents  in  his 
adversary's  possession,  or  under  his  con- 
trol, as  are  material  and  necessary  to  make 
out  his  own  case;  but  this  right  does  not 
extend  to  a  discovery  of  the  manner  in 
which  the  adverse  party's  case  is  to  be  es- 
tablished, nor  to  evidence  which  relates  ex- 
clusively to  the  adverse  party's  case.  Re 
Schoepf,  6:  325,  77  N.  E.  276,  74  Ohio  St. 
1. 

14.  Reports  of  an  accident  in  which  a 
passenger  was  injured,  made  by  the  con- 
ductor and  motorman  of  an  electric  car  to 
the  company's  claim  agent,  are  confidential 
communications,  and  cannot  be  regarded 
as  admissions  against  interest,  which  the 
injured  party  is  entitled  to  have  produced 
under  subpoena  duces  tecum  on  the  taking 
Digest  1-52  Ii.R.A.(N.S.) 


of  depositions  before  a  notary   public.     Re 
Schoepf,  6:  325,  77  N.  E.  276,  74  Ohio  St.  1. 

(Annotated) 

15.  A  report  made  by  the  conductor  and 
motorman  of  an  electric  car,  pursuant  to  a 
rule  of  the  company,  detailing  the  cir- 
cumstances of  an  accident  in  which  a  pas- 
senger was  injured,  and  designed  for  the  in- 
formation of  the  company's  claim  agent 
or  for  the  use  of  its  counsel  in  case  of 
suit,  and  which  remained  in  the  custody 
of  the  claim  agent  until  suit  was  com- 
menced against  tlie  company  for  the  injury 
received  in  such  accident,  when  it  was 
turned  over  to  the  company's  counsel,  is  a 
privileged  communication,  the  production  of 
which  cannot  be  enforced  by  subpoena  duces 
tecum  issued  by  a  notary  public  by  whom 
depositions  are  being  taken  in  the  suit  be- 
fore the  trial.  Re  Schoepf,  6:  325,  77  N. 
E.  276,  74  Ohio  St.  1.  (Annotated) 

16.  A  bill  will  not  lie  for  the  production 
of  the  original  draft  of  a  libelous  article  in 
aid  of  an  action  for  libel,  where  its  produc- 
tion might  fix  the  responsibility  for  the  ar- 
ticle on  defendant,  and  thereby  render  him 
guilty  of  a  misdemeanor.  Noyes  v.  Thorpe, 
12:  636,  62  Atl.  787,  73  N.  H.  481. 

(Annotated) 

17.  Messages  in  possession  of  a  tele- 
graph company  are  not  privileged  com- 
munications, but  it  may  be  compelled  by 
the  court  to  produce  them  in  court  under 
the  same  circumstances  applicable  to  other 
writings.  Ex  parte  Gould,  31:835,  132  S. 
W.   364,   60   Tex.    Grim.   Rep.   442. 

18.  A  subpoena  requiring  the  agent  of  a 
telegraph  company  to  produce  before  the 
grand  jury  all  messages  sent  from  the  town 
before  a  specified  time,  ordering  intoxicat- 
ing liquors,  is  too  broad  to  require  com- 
pliance therewith,  where  the  statute  pro- 
vides that  the  grand  jury,  in  propounding 
questions  to  a  witness,  shall  direct  the 
examination  to  the  person  accused  or  sus- 
pected of  crime,  and  state  the  offense  with 
which  he  is  charged,  but  permits  the  jury 
to  ask  a  witness  in  general  terms  whether 
he  has  knowledge  of  the  violation  of  any 
particular  law  by  any  person  "id  if  so  by 
what  person.  Ex  parte  Gould,  31:  835,  132 
S.  W.  364,  60  Tex.  Grim.  Rep.  442. 

19.  A  court  is  empowered  to  compel  a 
witness  to  produce  papers  before  a  com- 
missioner authorized  to  take  depositions, 
by  statutes  providing  that  a  witness  may 
be  required  to  attend  and  give  evidence  be- 
fore the  court  and  bring  with  him  required 
papers,  and  that  he  may  be  required  to 
appear  and  give  his  deposition  before  any 
officer  authorized  to  take  depositions,  in 
like  manner  as  he  may  be  compelled  to 
attend  as  a  witness  before  any  court,  and 
authorizing  the  court  to  compel  attendance 
before  the  commissioner,  and  providing 
that,  in  case  of  failure  to  attend  before  the 
commissioner,  the  latter  shall  ask  an  order 
to  compel  him  to  attend  and  testify.  Re 
Bolster,  29:  716,  110  Pac.  547,  59  Wash.  655. 

20.  The  legislature  may  require  a  cor- 
poration to  produce  its  books  and  documents 
in  evidence  in  a  civil  proceeding  to  forfeit 


DISCOVERY  AND  INSPECTION,   IL— DISCRETION. 


929 


its  francliises  for  misuse  thereof.  State  v. 
Central  Lumber  Co.  42:  804,  123  N.  W.  504, 
24  S.  D.  136. 

21.  A  statute  empowering  a  court  to  or- 
der an  inspection  of  papers,  and  to  enforce 
the  order  by  contempt  proceedings,  does  not 
apply  to  papers  which  are  of  such  a  pri- 
vate nature  as  not  to  be  receivable  in  evi- 
dence. State  ex  rel.  Seattle  General  Con- 
tract Co.  v.  Superior  Court,  28:  516,  106  Pac. 
150,  56  Wash.  649. 

22.  The  officers  of  a  corporation  defend- 
ant in  an  action,  who  are  not  parties  there- 
to, are  not  within  the  provision  of  a  statute 
that  the  parties  may  be  required  to  pro- 
duce books  and  papers.  Cassatt  v.  Mitch- 
ell Coal  &  Coke  Co.  10:  99,  150  Fed.  32,  81 
C.  C.  A.  80. 

23.  No  order  to  produce  papers  for  in- 
spection before  trial  can  be  made  under  U 
S.  Rev.  Stat.  §  724  (U.  S.  Comp.  Stat.  190lj 
p.  583),  authorizing  courts,  in  actions  at 
law,  to  require  parties  to  produce  papers 
under  circumstances  where  they  might  be 
required  to  produce  them  by  the  ordinary 
rules  of  proceeding  in  chancery,  and  affix- 
ing as  a  penalty  for  refusal  the  entry  of 
judgment  as  by  default;  since,  the  order 
being  no  part  of  the  record  of  the  judgment, 
the  judgment  cannot  be  sustained  on  appeal, 
and  therefore  the  order  to  produce,  if  dis- 
obeyed, is  nugatory.  Cassatt  v.  Mitchell 
Coal  &  Coke  Co.  10:  99,  150  Fed.  32,  81  C. 
C.  A.  80.  (Annotated) 

24.  The  holder  of  a  twenty-payment  life 
insurance  policy,  who  has,  inter  alia,  the  op- 
tion to  withdraw  at  the  expiration  of  the 
tontine  period  the  share  of  the  accumulated 
surplus  apportioned  by  the  company  to  his 
policy,  is  entitled,  under  a  statute  authoriz- 
ing inspection  of  books  and  papers  contain- 
ing evidence  of  matters  relating  to  the 
merits  of  the  action,  and  a  rule  of  court 
authorizing  such  inspection  when  necessary 
to  enable  applicant  to  frame  a  pleading 
or  prepare  for  trial,  to  an  inspection  of  the 
company's  books  and  papers  to  enable  him 
intelligently  to  exercise  his  options.  El- 
linger  v.  Equitable  Life  Assur.  Soc.  11: 
1089,  111  N.  W.  567,  132  Wis.  259. 

(Annotated) 

25.  No  authority  to  compel  a  private 
corporation,  in  which  a  decedent  held  stock, 
to  produce  its  books  and  papers,  is  conferred 
upon  a  court  by  a  statute  authorizing  it  to 
appraise  decedents'  estates  for  the  fixing  of 
the  inheritance  tax,  and  for  that  purpose  to 
compel  the  attendance  of  witnesses  and  the 
taking  of  their  testimony  under  oath.  State 
ex  rel.  Pabst  Brewing  Co.  v.  Carpenter, 
8:  788,  108  N.  W.  641,  129  Wis.  180. 

(Annotated) 

26.  The  officers  of  a  corporation  cannot 
refuse  to  produce  its  books  in  court  for  in- 
spection, in  response  to  a  subpcena  in  a 
cause  in  which  the  matter  contained  in 
them  is  material,  on  the  theory  that  the 
privacy  with  which  its  business  is  carried 
on  is  a  trade  secret,  which  it  is  entitled  to 
protect  from  the  inspection  of  strangers. 
Re  Bolster,  29:  716,  110  Pac.  547,  59  Wash. 
"'''  ( Annotated  ~ 


27.  A  corporation  may  be  compelled  to 
produce  its  books  for  inspection  in  a  suit 
against  it  in  the  courts  of  the  state  where 
it  was  organized,  although  they  are  in  pos- 
session of  its  officers  in  another  state. 
State  ex  rel.  Brumley  v.  Jessup  A  Moore 
Paper  Co.  30:  290,  77  Atl.  16,  1  Boyce 
(Del.)   379. 

JI.  Physical   examination. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Review  of  discretion  as  to,  see  Appeal  and 
Error,  627,  628. 

Adjournment  of  trial  to  permit,  see  Con- 
tinuance AND  Adjournment,  6. 

Continuance  of  case  for  refusal  to  submit, 
see  Continuance  and  Adjournment, 
7._ 

Exhibition  of  person  to  jury,  see  Evidence, 
879-881. 

Of  policeman  to  ascertain  fitness  for  posi- 
tion, see  Search  and  Seizure,  1. 

Cross-examination  of  plaintiff  as  to  willing- 
ness to  submit  to,  see  Witnesses,  82. 

Poixrer  to  order  generally. 

28.  A  court  of  law  has  no  inherent  pow- 
er to  compel  a  plaintiff  in  an  action  at  law 
to  recover  damages  for  personal  injuries  to 
submit,  in  advance  of  trial,  to  a  physical 
examination  by  defendant's  physician.  Lar- 
son V.  Salt  Lake  City,  23:  462,  97  Pac.  483, 
34  Utah,  318.  (Annotated) 

///.  Submitting  person  to  X-ray, 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

29.  Under  a  statute  giving  a  trial  court 
discretionary  power,  in  an  action  for  dam- 
ages for  personal  injury,  to  appoint  a  phy- 
sician to  make  a  physical  examination  of 
the  injured  person,  the  physician  may  him- 
self make  an  X-ray  examination,  if  deemed 
necessarj',  but  he  is  not  authorized  to  take 
X-ray  photographs  of  the  injured  person, 
or  to  appoint  a  photographer  to  use  the 
X-ray  or  to  take  X-ray  photographs,  with- 
out the  consent  of  the  injured  person;  nor 
can  the  court  compel  submission  to  exami- 
nation by,  or  in  the  presence  of,  another 
than  the  physician  appointed  by  him.  State 
ex  rel.  Carter  v.  Call,  41:  1071,  59  So.  789, 
64  Fla.  144. 


DISCREDITING. 


Discrediting  witness,  see  Witnesses,  III. 


DISCRETION. 


655. 


Digest  1-52  L.R.A.(N.S.) 


59 


Review  of,  on  appeal,  see  Appeai,  and  Er- 
ror, VII,  i. 


930 


DISCRIMINATION— DISFIGUREMENT. 


Of  attorney  general  when  requested  by  gov- 
ernor to  prosecute  proceeding,  see  At- 
torney General,  3. 

As  to  allowing  bail,  see  Bail  and  Recogni- 
zance, 10. 

Of  trustee  of  charity,  see  Charities,  42,  54- 
57,  59. 

In  making  appointment  to  office,  see  Civil 
Service. 

Of  civil  service  commission,  see  Civil  Serv- 
ice, 1. 

As  to  grant  of  permit  to  sell  intoxicating 
liquors,  see  Constitutional  Law,  273; 
Intoxicating  Liquors,  II.  b. 

As  to  letting  of  public  contract,  see  Con- 
tracts, 799. 

As  to  apportionment  of  costs,  see  Costs  and 
Fees,  13,  17. 

Review  by  courts  of  discretion  of  officers  in 
other  departments  of  government,  see 
Courts,  I.  c. 

Of  court  in  enforcing  statute,  see  Courts, 
I.  c,  2. 

As  to  admitting  in  evidence  photograph  of 
clothing  present  in  court,  see  Evidence, 
891. 

As  to  permitting  view  by  jury,  see  Evi- 
dence, 898. 

Of  executors  as  to  amount  to  be  spent  for 
monument,  see  Execittors  and  Admin- 
"     istrators,  40. 

Of  executrix,  control  of  court  over,  see 
Executors  and  Administrators,  41. 

As  to  appointment  of  guardian  ad  litem,  see 
Incompetent  Persons.  28. 

As  to  custody  of  minor  child,  see  Infants, 
I.  c. 

As  to  allowance  of  temporary  injunction, 
see  Injunction,  403. 

Mandamus  to  control,  see  Mandamus,  4,  9, 
16,  27,  28,  55. 

In  refusing  leave  to  file  information  in  na- 
ture of  quo  warranto,  see  Quo  War- 
ranto, 14. 

As  to  appointment  of  receiver  for  solvent 
corporation,  see  Receivers,  12. 

In  extending  time  for  payment  by  purchaser 
at  receiver's  sale,  see  Receivers,  51,  52. 

In  refusing  specific  performance,  see  Spe- 
cific Performance,  21. 

Of  trustee,  power  of  equity  to  control,  see 
Trusts,  86. 

Of  court,  as  to  examination  of  witnesses,  see 
Witnesses,  67,  69. 


DISCRIMINATION. 

In  ordinance  regulating  keeping  of  billiard 

or  pool  tables  for  hire,  see  Action  or 

Suit,  52. 
By  carriers,  see  Carriers,  II.  m,  4,  IV.  b; 

IV.  c. 
Against  colored  person,  see  Civil  Rights. 
Unconstitutionality  of,  see  Constitutionai, 

Law,  II,  a. 
In  ballot,  see  Elections,  37. 
By    electric    light    company,    see    Electric 

Lights. 
Evidence  as  to,  in  shipment  of  freiglit,  see 

Evidence.  2031,  2032. 
Digest  1-52  L.R.A.(N.S.) 


By  gas  company,  see  Gas,  1,  5,  8,  14,  28. 

In  rates  by  insurance  company,  see  Insur- 
ance, 1,  2. 

By  rebate  from  insurance  premium,  see 
Insurance,  418-420. 

Liability  for  interest  on  discriminatory  rate 
exceeded  by  carrier,  see  Interest,  2. 

In  license  tax,  see  License,  II.  d. 

By  municipality,  see  Municipal  Corpora- 
tions, 93,  94. 

Between  members  of  secret  societies  in 
schools,  see  Schools,  22. 

In  taxes  generally,  see  Taxes,  I.  c. 

In  succession  tax,  see  Taxes,  V.  b. 

In  income  tax,  see  Taxes,  VI.  b. 

By  teleplione  companv,  see  Telephones,  9- 
11,  24-26. 

In  water  rates,  see  Waters,  422-424. 


DISEASE. 


As  ground  for  refusal  to  accept  person  as 
passenger,  see  Carriers,  474. 

As  ground  for  ejection  of  passenger,  see 
Carriers,  405. 

Communication  of,  to  passenger,  see  Car- 
riers, 225. 

Communication  of,  to  live  stock,  during 
transportation,  see  Carriers,  846;  Evi- 
dence, 1785;  Trial,  554. 

In  plants,  state's  power  to  adopt  regula- 
tions to  prevent  spread  of,  see  Com- 
merce, 26. 

Validity  of  statute  providing  for  treatment 
and  extermination  of  insect  and  plant 
diseases,  see  Constitutional  Law,  98, 
383,  588,  614,  651. 

Requiring  destruction  of  diseased  cow,  see 
Constitutional  Law,  653. 

As  affecting  damages,  see  Damages,  372- 
377. 

Condonation  preventing  divorce  because  of, 
see  Divorce  and  Separation,  74,  75. 

Judicial  notice  as  to,  see  Evidence,  42-44, 
51. 

Communication  of,  to  wife  by  husband,  see 
Evidence,  503;  Husband  and  Wife, 
207. 

Protection  against,  see  Heialth. 

Statements  as  to,  in  application  for  insur- 
ance, see  Insurance,  III.  e,  2,  b. 

Death  of  insured  from,  see  Insurance,  VI. 
b,  2,  VI.  b,  3. 

Power  of  legislature  to  declare  existence  of, 
a 'nuisance,  see  Legislature,  6. 

Liability  of  municipality  for  disease  caused 
by  polluted  water  supply,  see  Munici- 
pal Corporations,  464." 

Effect  of,  on  question  of  proximate  cause  of 
injury,  see  Proximate  Cause,  120. 

Contagious  or  infectious  disease,  see  Con- 
tagious AND  Infectious  Diseases. 


DISFIGUREMENT. 


Mental  suffering  as  element  of  damages  for 
causing,  see  Damages,  608. 


DISHERISON— DISMISSAL  OR   DISCONTINUANCE. 


931 


Sufliciency  of  evidence  to  sustain  conviction 

of,  see  Evidence,  23f»9. 
Liability  for,  see  Mayhem. 


DISHERISON. 

See  Wiixs,  III.  c. 


DISHONEST    PERSONS. 

Exclusion  of,  from  railway  depots  and  ware- 
rooms,  see  Carkiebs,  1002,  1013^ 


dishonor;.'"'''"'^ 


Of  check  by  bank,  see  Banks,  93-101. 
Notice  of  dishonor  of  note,  see  Bills  and 

Notes,  IV. 
Of  note,  what  law  governs  giving  notice,  see 

Conflict  of  Laws,  22-26. 


■MiJri^x    '.ill 

disinfection. 


Effect  of,  on  landlord's  liability  for  subse- 
quent contraction  of  contagious  disease, 
see  Landlord  and  Tenant,  144. 


DISINHERITANCE. 

Of  children  or  heir,  see  Wills,  III.  c 


DISINTERMENT. 

Of  corpse,  see  Corpse,  10-17. 


DISMISSAL   OR  DISCONTINUANCE. 

Of  part  suit  only,  see  Action  oe.  SriT,  119. 

Of  action,  without  attorney's  consent,  see 
Action  or  Suit,  4;  Attorneys.  76-86. 

Of  appeal,  see  Appeal  and  Error,  VI. 

Of  attachment,  see  Attachment,  III.  c. 

Of  action,  by  attorney,  see  Attorneys,  38, 
44-48;  Limitation  of  Actions,  175. 

Of  case  as  to  alleged  agent  as  election  to 
hold  undisclosed  principal,  see  Elec- 
tion OF  Remedies,  4. 

Of  condemnation  proceeding,  see  Eminent 
Domain,  149-151. 

Of  prosecution  as  evidence  of  want  of  prob- 
able cause,  see  Evidence,  260. 

Of  petition  to  widen  street,  see  Highways, 
6. 

Of  pleading,  see  Pleading,  I.  t. 

Of  quo  warranto  proceedings,  see  Quo  War- 
ranto, 4. 

Of  cause  removed  to  Federal  court,  see  Re- 
moval OF  Causes,  33. 

Of  teaclier,  see  Schools,  II.  e. 

Digest   1-52  IhR.A.(N.S.) 


On  demurrer  to  petition,  see  Estoppel,  213. 

Effect  of  failure  to  demur  to  declaration  on 
right  to  move  to  dismiss  action,  see 
Abatement  and  Rbtvival,  3. 

Appeal  from  order  refusing  to  dismiss,  see 
Appeal  and  Error,  27. 

Right  to  review  of,  see  Appeal  and  Error, 
552. 

Direction  of  appellate  court  to  dismiss,  see 
Appeal  and  Error,  1563,  1576.  i 

Costs  on,  see  Costs  and  Fees,  5. 

New  action  in  Federal  court  after  voluntary 
dismissal  in  state  court,  see  Courts, 
276. 

Parol  evidence  as  to,  where  record  does  not 
show  facts,  see  Evidence,  1040. 

Testing  right  of  administrator  to  sue  by 
motion  to  dismiss,  see  Executors  and 
Administrators,  31. 

Conclusiveness  of  judgment  of,  see  Judg- 
ment, 103-118. 

Effect  of,  on  running  of  limitations,  see 
Limitation  of  Actions,  306,  307. 

Right  to  have  petition  for  dismissal  set 
down  for  hearing  on  petition  and  an- 
swer, see  Motions  and  Orders,  3. 

Sufficiency  of  allegations  in  action  to  en- 
join, see  Pi^ADiNG,  390. 

1.  An  oral  motion  to  dismiss  an  attach- 
ment on  the  ground  that  no  cause  oi 
action  is  set  forth  in  the  petition  may  be 
made  at  any  time  before  verdict.  Cooney, 
E.  &  Co.  v.  Sweat,  25:  758,  66  S.  E.  257.  133 
Ca.  511. 

Volnntarjr. 

2.  A  statutory  proceeding  in  the  nature 
of  the  -writ  inquirendo  de  lunatico  cannot 
be  dismissed  by  the  petitioner  without  the 
consent  of  the  court  acting  in  its  discre- 
tion for  the  interests  of  the  public  and  of 
the  person  whose  sanity  is  questioned. 
State  ex  rel.  Paxton  v.  Guinotte,  51:  1191, 
165  S.  W.  718,  257  Mo.  1.  (Annotated) 

3.  The  fact  that  a  statute  of  set-oflFs 
permits  judgment  to  be  taken  by  the  defend- 
ant for  a  balance  found  due  him  does  not 
preclude  the  plaintiff  from  taking  a  nonsuit, 
or  from  dismissing  his  case  at  any  time  be- 
fore verdict,  where  the  right  is  not  denied  by 
statute,  although  defendant  has  interposed  a 
counterclaim  entitling  him  to  affirmative  re- 
lief. Huffstutler  v.  Louisville  Packing  Co. 
15:  340,  45  So.  418,  154  Ala.  291. 

(Annotated) 

4.  A  written  stipulation  of  both  parties 
to  an  action,  stating  that  it  is  dismissed 
without  costs  to  either  party,  is  effective  to 
dismiss  the  action  without  prejudice,  under 
a  statute  providing  that  an  action  may  be 
dismissed  by  either  party  upon  written  con- 
sent of  the  other.  State  Medical  Examin- 
ing Board  v.  Stewart,  11:  557,  89  Pac.  475, 
46  Wash.  79. 

5.  Where  proper  application  is  made  by 
a  nonresident  defendant  for  the  removal  of 
a  case  from  the  state  court  to  the  United 
States  court,  which  application  is  refused 
by  the  state  court,  whose  judgment  is  re- 
versed on  writ  of  error  to  the  supreme 
court  of  the  state,  the  plaintiff  cannot  dis- 
miss the  case,  so  as  to  defeat  the  removal 


932 


DISOBEDIENCE;   DISUilDEKLY    HOUSES. 


of  the  case  to  the  United  States  court,  by 
an  entry  of  dismissal  made  by  his  attorney 
on  the  original  papers,  before  the  remit- 
titur from  the  supreme  court  l.as  been  form- 
«tlly  made  the  judgment  of  the  court  from 
which  the  case  is  taken  by  writ  of  error. 
Louisville  &  N.  R.  Co.  v.  Newman,  26:  969, 
64  S.  E.  541,  132  Ga.  523. 

G.  The  defendant  in  an  action  on  a  note 
dismissed  by  the  plaintiff  before  trial,  with 
prejudice,  after  payment  of  all  legal  costs 
incurred  therein,  cannot,  in  the  absence  of 
malice,  want  of  probable  cause,  or  bad 
faith,  recover  damages  in  a  subsequent  ac- 
tion for  loss  of  time,  expenses,  or  attorney 
fees  incurred  by  him  in  preparing  for  the 
trial  of  the  dismissed  case.  John  Deere 
Plow  Co.  V.  Spatz,  20:  492,  99  Pac.  221,  78 
Kan.   786.  (Annotated) 

7.  The  •  consent  of  his  attorney  is  not 
essential  to  the  validity  of  a  dismissal  by 
the  client  of  his  caupe  of  action  in  a  man- 
ner provided  by  a  statute  providing  in  what 
cases  causes  of  action  may  be  dismissed. 
Gibson  v.  Nelson,  31:  523,  ^26  N.  W.  731, 
111   Minn.   183. 

8.  The  dismissal,  upon  application  by 
the  plaintiff,  of  his  cause  of  action,  is  not 
invalidated  because  the  notice  thereof  re- 
quired by  statute  to  be  given  the  adverse 
party  was  served  upon  the  defendant  in- 
stead of  upon  his  attorney,  notwithstanding 
a  statute  providing  that  all  notices  shall 
be  served  upon  the  attorney,  and  not  upon 
the  party.  Gibson  v.  Nelson,  31 :  523,  126 
N.  W.  731,  111  Minn.  183. 
Involuntary. 

Of  divorce  suit,  see  Divorce  and  Separa- 
tion, 63. 

Of  action  because   of   plaintiff's   failure  to 

L        comply    with    order    for    additional    se- 

•  ('      curity  for  costs,  see  Costs  and  Fees, 

''        10,  11. 

Of  action  because  of  variance,  see  Evi- 
dence, 2493. 

Dismissal  without  prejudice,  see  Judg- 
ment, 40. 

9.  Upon  the  refusal  of  the  plaintiff  to 
comply  with  a  proper  order  requiring  him 
to  elect  as  to  which  of  two  defendants  im- 
properly joined  as  such  he  will  proceed 
against,  the  court  may  dismiss  the  action 
without  prejudice  to  a  future  action,  under 
Ohio  Rev.  Stat.  1906,  §  5314,  subd.  5,  em- 
powering it  to  do  so  for  disobedience  by  the 
plaintiff  of  an  order  concerning  the  pro- 
ceedings in  the  action.  French  v.  Central 
Constr.  Co.  12:  669,  81  N.  E.  751,  76  Ohio 
St.  509. 

10.  An  action  cannot  be  dismissed  be- 
cause it  is  brought  by  an  insane  person  in 
his  own  name,  unless  thi.-  statute  so  pro- 
vides. Wiesmann  v.  Donald,  2:  961,  104  N. 
W.  916,  125  Wis.  600.  (Annotated) 

11.  It  is  no  ground  for  dismissal  of  an 
action  brought  by  the  state  against  parties 
claiming  to  be  trustees  of  a  sectarian 
school,  to  determine  who  is  entitled  to  ad- 
minister tlie  school,  that  the  trustees  hav- 
ing the  right  to  the  property  are  admitted 
as  parties  by  amendment,  and  that  the  state 
solicitor  still  remains  a  party,  since  the 
Digest   1-52  L.R.A.(N.S.) 


rights  of  the  parties  may  be  adjudicated 
without  the  necessity  of  bringing  a  new 
action.  State  ex  rel.  Kerr  v.  llicks,  33: 
529,  70  S.  E.  468,  154  N.  C.  265. 

12.  A  proceeding  in  equity  for  civil  con- 
tempt consisting  in  d<jing  tiiat  which  was 
forbidden  by  an  injunction,  vvlicrc  the  only 
remedial  relief  possible  was  a  line  pajable 
to  the  complainant,  must  be  dismissed  with- 
out prejudice  to  the  jjower  and  right  of  the 
court  granting  the  injunction  to  punish  for 
contempt  by  proper  proceedings,  where 
there  has  been  a  complete  settlement  be- 
tween the  parties  of  all  the  matters  in- 
volved in  the  original  cause.  Compers  v. 
Buck's  Stove  &  Range  Co.  34:  874,  31  Sup. 
Ct.  Rep.  492,  221  U.  S.  418,  55  L.  ed.  797. 

Of    party. 

Right  of  one  of  two  joint  tort  feasors  to 
continuance  upon  dismissal  as  to  other, 
see  Continuance  and  Adjournment, 
4. 

Of  action  as  to  one  of  sureties  upon  redeliv- 
ery bond,  effect  on  liability  of  others, 
see  Principal  and  Surety,  30. 

As  to  unnecessary  party,  see  Removal  of 
Causes,  13. 

See  also  Contribution  and  Indemnity,  5. 

13.  The  striking  out  of  an  improper 
party  does  not  work  a  discontinuance  of  the 
case.  Shriner  v.  Craft,  28:  450,  51  So.  884, 
166  Ala.  146. 

14.  One  who  contracts  to  perform  work 
for  a  railroad  company  cannot  complain 
that  an  action  against  him  and  the  rail- 
road company  for  compensation  alleged  to 
be  due  a  subcontractor  was  dismissed  in 
favor  of  the  railroad  company,  and  per- 
mitted to  go  to  verdict  against  him  alone. 
Evans  v.  Oregon  &  W.  R.  Co.  28:  455,  108 
Pac.  1095,  58  Wash.  429. 

15.  The  discontinuance  as  to  some  of  the 
defendants  of  an  action  against  several 
joint  tort  feasors  has  no  effect  upon  the 
liability  of  the  others.  Matheson  v.  O'Kane, 
39:  475,  97  N.  E.  638,  211  Mass.  91. 

16.  A  railroad  company  sued  jointly 
with  a  chair  car  company  for  damages  for 
negligently  carrying  a  passenger  past  his 
station  cannot  complain  that  the  action  is 
dismissed  in  favor  of  the  latter,  and  al- 
lowed to  proceed  against  it  alone,  since  it 
cannot  escape  its  own  liability  because  an- 
other, also  liable,  is  allowed  to  go  free. 
Yazoo  &  M.  V.  R.  Co.  v.  Hardie,  34:  740, 
55  So.  42,  100  Miss.  132. 


DISOBEDIENCE. 


As  a  contempt,  see  Contempt,  I,  c. 
Of  servant,  see  Mastek  and  Servant,  II.  d. 
As  ground  for  revoking  agency,  see  Pbinci- 
PAx  AND  Agent,  16. 

h 

^^ -,        ^   :..|,n(> 

DISORDERLY   HOUSES."''    '^^ 

Vested  right  to  use  property  in  connection 
with,  see  Constitutional  Law,  51. 

a 


.(iiliV  DISORDERLY    PERSONS— DISSATISFACTION. 


933 


Constitutionality  of  statute  authorizing 
seizure  and  forfeiture  of  property  used 
in,  see  Coxstitutioxal  Law,   51,   749. 

Matcing  general  reputation  prima  facie  evi- 
dence of  character  of,  see  Constitu- 
tional Law,  621. 

Insurance  on  property  used  in,  see  Con- 
tracts, 444;  Insurance,  92. 

Validity  of  lease  of  premises  for  purposes 
of,  see  Contracts,  492. 

Former  jeopardy,  see  Criminal  Law,  217. 

Evidence  as  to  general  reputation  as  to,  see 
Evidence,  1278. 

Proof  required  on  part  of  person  claiming 
personalty  used  in  maintaining,  see 
Evidence,  2198. 

Sufficiency  of  proof  to  support  conviction 
for  maintaining,  see  Evidence,  2411- 
2413. 

Time  as  essential  element  of  ofl'ense  of  keep- 
ing, see  Evidence,  2507. 
Indictment  for,  see  Indictment,  etc.,  128. 

Injunction  against,  see  Injunction,  411; 
Nuisances,  95,  96,  178,  180. 

Libel  in  charging  house  as  being,  see  Libei. 
and  Slander,  26-28,  91. 

Libel  in  charging  misconduct  by  occupants 
of   dwelling,   see   Libel   and    Slander, 

.'(?•'  133. 

Laches  as  bar  to  proceedings  to  abate,  see 
Limitation  of  Actions,  66. 

Who  may  maintain  bill  to  suppress,  see 
Nuisances,  82. 

Right  of  police  to  patrol  approach  to  court 
occupied  by,  see  Public  Way. 

Correctness  of  instruction  in  prosecution 
for  keeping,  see  Trial,  1081. 

1 .  A  section  of  a  statute  relating  to  the 
forfeiture  of  property  found  in  a  bawdy- 
house,  which  applies  only  to  a  defendant 
convicted  in  an  inferior  court,  does  not  con- 
cern defendant  property  owners,  in  a  civil 
action  alone.  State  ex  rel.  Robertson  v. 
Lane,  52:  932,  147  N.  W.  951,  126  Minn.  78. 

2.  A  lessor  who  has  no  notice  at  the 
time  of  the  lease  that  the  lessee  is  of  bad 
character  or  intends  to  use  the  property 
as  a  house  of  prostitution  cannot,  merely 
because  he  receives  notice  during  the  ten- 
ancy that  the  house  is  being  used  for  that 
purpose,  be  convicted  of  the  offense  of  main- 
taining a  disorderly  house  if  he  does  not 
aid  or  abet  the  lessee  in  so  doing.  Blocker 
V.  Com.  44:  859,  165  S.  W.  723,  153  Kv. 
304.  (Annotated) 

3.  Members  of  a  city  council  who  pass 
an  ordinance  providing  for  the  licensing  of 
bawdyhouses  do  not  become  participants  in 
the  keeping  of  houses  kept  under  the  reso- 
lution, so  as  to  render  themselves  liable  to 
punishment  as  such  keepers.  State  v.  Lis- 
more,  29:  721,  126  S.  W.  855,  94  Ark.  211. 

(Annotated) 
What  are. 

4.  A  place  where  loans  at  usurious 
interest  are  habitually  made  is  a  disorderly 
place,  when  the  taking  of  usury  is  made 
unlawful  by  statute.  State  v.  Martin  (N. 
J.  Err.  &  App.)  24:  507,  73  Atl.  548,  77  N. 
J.  L.  652.  (Annotated) 

5.  A  house  in  which  money  is  habitual- 
Digest  1-52  I..R.A.(N.S.> 


ly  lent  at  usurious  rates  cannot  be  con- 
sidered a  disorderly  house,  where  the  stat- 
utes of  the  state  merely  provide  that  all 
contracts  for  loans  at  a  greater  than  the 
legal  rate  of  interest  shall  be  void  as  to 
the  excess,  without  prescribing  a  penalty  for 
exacting  usurious  interest.  Com.  v.  Mutual 
Loan  &  T.  Co.  50:  1171,  160  S.  W.  1042,  156 
Ky.   299. 

6.  A  private  club,  admission  to  wliich 
is  accessible  to  members  only,  is  not  a  dis- 
orderly house  because  liquors  are  sold  there 
in  violation  of  a  municipal  ordinance.  Mos- 
man  v.  Fort  Collins,  11:  842,  90  Pac.  605, 
40  Colo.  270. 

7.  The  keeping  of  a  disorderly  house  by 
a  man  of  good  character  who  has  been  a 
tavern  keeper  for  thirty  years  Is  not  shown 
by  the  fact  that  a  few  negroes  congregated 
about  his  place,  that  drunken  people  have 
been  seen  on  a  neighboring  highway,  and 
that  in  two  cases  liquor  had  been  sold  to 
minors.  Schneider  v.  Com.  20:107,  111  S.  W. 
303,  33  Ky.  L.  Rep.  770. 


DISORDERLY  PERSONS. 

As  to  breach  of  peace,  see  Breach  of  Peace:. 

Refusal  of  carriers  to  transport,  see  Car- 
riers, 40. 

As  to  disorderly  house,  see  Disorderly 
Houses. 


DISPLAY  CARDS. 

Right  of  action  for  interference  with  mer- 
chant's display  cards,  see  Case,  20,  29. 


DISPOSAL. 


Effect  of  power  of,  given  by  will,  see  Wills, 
220-229. 


■v.r 


DISQUALIFICATION. 


To    act    as   executor,    see    Executors    and 

Administrators,  1-16. 
Restraining  suit  before  justice  of  the  peace 

for,  see  Injunction,  246. 
Of  judge,  see  Judges,  III. 


DISSATISFACTION. 

Right  to  discharge  servant  when  dissatis- 
fied, see  Master  and  Servant,  108-UO. 

Agent's  authority  to  take  back  goods  be- 
cause of  customer's  dissatisfaction,  see 
Principal  and  Agent,  39. 


934 


DISSEISIN— DISTKICT  AND    PROSECUTING  ATIORNEYS. 


DISSEISIN. 

See  Adverse  Possession. 


DISSOLUTION. 

Of  attachment,  see  Attaciimewt,  III.  c. 

Of  benevolent  societies,  see  Benevolent 
Societies,  V. 

Of  corporation,  see  Corporations,  VI. 

Of  injunction,  see  Injunction,  418-422. 

Of  insurance  company,  see  Insubance,  I.  c. 

Of  municipality,  see  Municipax  Corpora- 
tions, I.  c. 

Of  partnership,  see  PABTNEBsriip,  VI. 


DISTANCE. 


Judicial    notice    of    distance    between    two 
municipalities,  see  Evidence,  17. 


DISTINGUISHING    MARKS. 

On  ballot,  see  Elections,  III.  b,  3. 


DISTRESS. 


For  rent,  see  Landlord  and  Tenant,  III. 
d.  3. 


DISTRIBUTION. 


Of  decedent's  estate,  see  Descent  and  Dis- 
tribution; Executors  and  Adminis- 
trators, IV.  c. 

Of  insolvent  estate,  see  Insolvency,  V. 

Of  assets  of  insurance  company,  see  Insur- 
ance, 30. 


DISTRICT    AND    PROSECUTING 
ATTORNEYS. 

Error  in  appointment  of  assistant  prosecu- 
tor, see  Appeal  and  Error,  1479. 

Agreement  between  law  partners  one  of 
whom  is  prosecuting  attorney,  to  divide 
salary  of  office,  see  Assignment,  9; 
Contracts,  437. 

As  to  attorney  general,  see  Attorney  Gex- 

BSJAL. 

Ratification  of  irregular  employment  of  de- 
tective by  county  attorney,  see  Coun- 
ties, 34. ' 

Right  of  county  prosecuting  attorney  to  be 
present  in  grand  jury  room,  see  Grand 
Jury,  3.  ^ 

Injunction  at  suit  of  county  attorney,  see 
Injunction,  310. 

Digest  1-52  L.R.A.(N.S.) 


Right  of  prosecuting  attorney  to  maintain 
action  on  injunction  bond,  see  Injunc- 
tion, 431. 

Mandamus  to,  see  Mandamus,  30. 

Eligibility  of  candidate  for  office  of  county 
attorney,  see  Officers,  9. 

Abolishing  offices  of  county  attorney,  see 
Officeujs,  53. 

Removal  of  county  attorney  by  governor, 
see  Officers,  66. 

Action  by  county  attorney,  see  Parties. 

Duty  to  allow  petition  for  quo  warranto, 
see  Quo  Wakka.vto,  7,  12,  14. 

Plurality  of  subjects  in  act  creating  office 
of,  and  prescribing  fees,  see  Statutes, 
145. 

Right  of  prosecuting  attorney  to  testify 
that  no  inducement  was  offered  witness 
to  testify  against  accused,  see  Wit- 
nesses, 197. 

1.  The  prosecuting  attorney  of  a  coun- 
ty has  authority,  independent  of  the  at- 
torney general,  to  institute  and  prosecute 
all  criminal  actions  and  proceedings  cogniz- 
able in  the  courts  of  his  county,  but  has 
no  such  power  or  authority  respecting  the 
prosecution  of  civil  proceedings  on  the  part 
of  the  state,  beyond  that  expressly  con- 
ferred by  statute.  State  v.  Ehrlick,  23:  691, 
64  S.  E.  935,  65  W.  Va.  700. 

Private    counsel    assisting. 
See  also  Appeal  and  Error,  362. 

2.  An  order  made  by  a  court  at  the 
opening  of  a  trial  for  homicide,  that  an  at- 
torney employed  by  private  parties  be  "per- 
mitted" to  assist  the  county  attorney,  is 
not  a  compliance  with  a  statutory  provision 
that  in  the  trial  of  a  felony  the  county  at- 
torney may,  under  the  direction  of  the  dis- 
trict court,  appoint  such  assistants  as  he 
may  deem  necessary.  McKay  v.  State,  39: 
714,  132  N.  W.  741,  90  Neb.  63,  135  X.  W. 
1024,  91  Neb.  281. 

3.  Under  a  statute  making  it  the 

of  a  county  attorney  to  prc-ocute  and  d;;- 
fend  on  behalf  of  the  state  and  county  all 
actions  civil  or  criminal,  and  containing 
the  further  provision  that  in  the  trial  of  a 
person  charged  with  felony  the  county  at- 
torney may,  under  the  direction  of  the  dis- 
trict court,  appoint  such  assistants  as  he 
may  deem  necessary,  it  is  error  to  allow 
an  attorney  employed  by  private  parties  to 
participate  in  the  trial  of  a  person  charged 
with  felony,  without  any  appointment  from 
the  county  attorney  under  direction  of  the 
district    court.      McKay    v.    State,    39:  714, 

132  N.  W.  741.  90  Neb.  63,  135  N.  W.  1024, 
91  Neb.  281. 

Compensation. 

4.  A  statute  fixing  the  fees  of  the 
prosecuting  officers  in  counties  having  a 
certain  population  within  the  state  is  not 
invalid  under  a  constitutional  provision  re- 
quiring sucli  laws  to  be  uniform  in  their 
operation.       Wiles    v.     Williams,    34:  1060, 

133  S.  W.  1,  232  Mo.  56. 

5.  An  attorney  acting  as  special  prose- 
cutor for  the  state  bj'  appointment  of  court, 
in  the  absence  of  the  public  prosecutor,  can- 
not recover  compensation  from  individuals 
for  his  services,  although  he  acted  at  their 


DISTRICTS— DIVOKCE    AND  SEPAIIATIOX. 


935 


request  and  they  expressly  promised  to  pay 
him.  Coggeshali  v.  Conner,  39:  81,  120  Pac. 
559,    31    Okla.    113.  (Annotated) 


DISTRICTS. 


Of  Federal  courts,  see  Courts,  III.  i. 
Public    improvement    district,    see    Public 
Improvements,  11. 


DISTURBING   MEETING. 

1.  It  is  a  misdemeanor  at  common  law 
wantonly  to  disturb  an  assembly  of  per- 
sons met  together  for  any  lawful  purj)ose, 
such  as  the  enjoyment  of  a  Chri.stmas  tree, 
and  this  law  is  not  changed  by  a  statute 
providing  for  the  punishment  of  anyone  who 
shall  disturb  a  meeting  for  religious,  edu- 
cational, or  literary  purposes,  or  for  the 
promotion  of  temperance.  State  v.  Wat- 
kins,  30:  829,  130  S.  W.  839,  123  Tenn.  502. 

(Annotated) 

2.  A  "religious  meeting"  is  an  as- 
semblage of  people  met  for  the  purpose  of 
performing  acts  of  adoration  to  the  Su- 
preme Being,  or  to  perform  religious  serv- 
ices in  recognition  of  God  as  an  object 
of  worship,  love,  and  obedience;  it  matters 
not  the  faith  with  respect  to  the  Deity 
entertained  by  the  persons  so  assembled. 
Cline  V.  State,  45:  108,  130  Pac.  510,  9 
Okla.  Crim.  Rep.  40. 

3.  The  fact  that  no  former  prayer  was 
offered  at  a  Christmas  festival  does  not 
preclude  its  being  regarded  as  a  religious 
meeting  within  the  meaning  of  a  statute 
relating  to  the  disturbance  of  such  meet- 
ings, especially  where  there  is  every  reason 
to  believe  that,  but  for  the  conduct  of 
the  person  accused  of  such  disturbance, 
such  prayer  would  have  been  offered.  Cline 
V.  State,  45:  108,  130  Pac.  510,  9  Okla. 
Crira.  Rep.  40.  (Annotated) 


DITCH. 

Quieting  title  to  ditch  across  another's  land, 
see  Cloud  on  Title,  21. 

Easement  in,  see  Easements,  2,  37,  72. 

Estoppel  to  dam  up  drainage  ditch,  see  Es- 
toppel, 231. 

Failure  to  guard  ditch  passing  under  side- 
walk, sec  Highways,  226. 

Injunction  against  interference  with,  see 
Injunction,  216. 

Joint  liability  for  nuisance  resulting  from, 
see  Joint  Creditors  and  Dektors,  18. 

Injury  to  child  falling  into  ditch  filled  with 
hot  water,  see  Negligence,  176. 

Easements  for  water  ditch,  see  Waters,  251. 

Liability  for  injury  by  seepage  or  discharge 
from,  see  Waters,  303-309. 

In  general,  see  Drains  and  Sewees. 

Digest  1-52  I<.R.A.(N.S.) 


DITCH   COMPANY. 

Right  to  sue  without  joining  consumers  as 
parties,  see  Parties,  149. 


DIVERSE    CITIZENSHIP. 

As  ground  for  jurisdiction,  see  Courts,  III. 

d. 
Removal  of  action  in  case  of,  see  Removal 

of  Causes,  I.  b. 


DIVERSION. 


Of  freight,  order  for,  see  Carriers,  744,  822. 

Of  property  dedicated,  see  Dedication,  17- 
19. 

Of  water,  injunction  against,  see  Injunc- 
tion, 229-232. 

Of  water,  generally,  see  Municipal  Cor- 
porations, 447,  448 ;  Waj^rs,  II.  c. 

Of  surface  water,  municipal  liability  for, 
see  Municipal  Corporations,  452,  453. 

Of  public  funds,  see  Public  Money,  II.  b. 

Of  property  of  religious  society  to  purposes 
foreign  to  trust,  see  Religious  Socie- 
ties, 5,  9. 

Of  water  beyond  confines  of  si;  ' ,-,  see  Wat- 
ers, 40,  44. 


DIVIDEND    ADDITIONS. 

Use  of,  to  pay  premiums,  see  Insxjbance, 
172,  173. 


H(^».H.'> 


DIVIDENDS. 


On  corporate  stock  generally,  see  Corpora- 
tions, V.  e,  4. 

Validity  of  contract  as  to,  see  Contracts, 
577. 

On  stocks  and  bonds  as  assets,  see  Execu- 
tors AND  Administrators,  83. 

Relative  rights  of  life  tenant  and  remainder- 
men as  to,  see  Life  Tenants,  II.  b. 

♦>» 


DIVISION  FENCES. 

See  Fences,  II. 

♦-»-♦ 

DIVORCE  AND  SEPARATION. 

7.  In  general. 
II.  The  suit  and  jurisdiction  thereof, 
1-17. 
III.  Grounds,  IS— 61. 

a.  Crueltij;   ill   treatment,    18— 

31. 
h.  Desertion,   38—51. 


936 


DIVORCE  ANb  SEPARATION,  I.,  II. 


///. — continued. 

c.  Dininkenttess ;    use    of    mor~ 

phine,  52,  53. 

d.  Imprisonment;  miscella- 

neous, 54—61. 
IV.  Defenses;     connivance ;     recrim- 
ination, 62—78. 
Y.  Alimony,   79—127. 

a.  In  general,   79—95. 

b.  Temporary      alimony;      suit 

money,  96—106. 

c.  Permanent  allowance,   107— 

123. 

d.  Subsequent     change,      124— 

127. 
VI.  Other  property  rights,   128—143. 
VII.  Custody  and  support  of  children, 
144-158. 
VIII.  Agreements      for     support     and 
maintenance,   1 59—1 68. 

a.  In  general,    159—162. 

b.  Validity  of,   163—168. 

What  reviewable  on  appeal  from  decree, 
see  Appeax  and  Ebrob,  492. 

Advertising  for  divorce  business  as  ground 
for  disbarment,  see  Attorneys,  22,  26. 

Disbarment  of  attorney  bringing  second  suit 
for,  without  disclosing  facts  to  court, 
see  Attorneys,  23,  27. 

Compensation  to  attorney  in  suit  for,  see 
Attorneys,  50,  58. 

Agreement  not  to  apply  for,  as  sufficient 
consideration  for  postnuptial  settle- 
ment, see  Bankruptcy,  58. 

Validity  of  note  given  in  consideration  of 
services   in    procuring,    see   Bills   and 

.  n  ,     Notes,  17. 

Liability  on  bond  of  sheriff  for  false  return 
of  service,  see  Bonds,  64. 

Champertous  contract  with  attorney  as  to 
compensation  in  suit  for,  see  Champer- 
ty AND  Maintenance,  6. 

Remarriage  of  divorced  person,  see  Conflict 
OF  Laws,  73-77;  Conteaipt,  28;  In- 
junction,  167;    Marriage,    17-21,    25. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  79-82. 

Change  of  beneficiary  of  insurance  in  case 
of,  see  Constitutional  Law,  63. 

Contempt  in  refusing  to  pay  judgment,  see 
Contempt,  13. 

Contempt  in  violating  order  against  re- 
moving or  disposing  of  property,  see 
Contempt,  13. 

Public  policy  as  to  contract  to  induce  wife 
living  separate  from  her  husband  to 
return  to  him,  see  Contracts,  431. 

Validity  of  contract  for  services  in  procur- 
ing, see  Contracts,  479. 

Recovery  on  quantum  meruit  for  securing, 
see  Contracts,  613. 

Status  of  child  begotten  after  the  divorce 
of  its  parents,  see  Dkath,  7. 

EflFect  of  divorce  on  domicil  of  children,  see 
Domicil,  2,  3. 

Suit  by  divorced  wife  for  partition  of  prop- 
erty alleged  to  be  community  property, 
see  Estoppel,  106. 

Presumption  and  burden  of  proof  as  to  fact 
of,  see  Evidence,  150,  151. 

Digest  1-52  I^R.A.(N.S.) 


Presumption  as  to  foreign  law  in  regard  to, 
see  Evidence,  80. 

Burden  of  proof  as  to  fraud  in  conveyance 
on  day  suit  commenced,  see  Evidh;,\'ce, 
660. 

Judgment  of,  as  evidence,  see  Evidence,  762. 

Effect  of,  to  relieve  husband  from  duty  to 
maintain  wife,  see  Husband  and  Wife, 
10. 

Effect  of,  on  right  of  action  for  alienation 
of  wife's  affections  before  decree  was 
granted,  see  Husband  and  Wife,  102, 
163. 

Right  of  wife  to  reach  husband's  assets 
after  decree  for  separate  maintenance, 
see  Husband  and  Wife,   164,   165. 

Effect  of,  on  necessity  of  joining  father  in 
action  by  mother  for  abduction  of  child, 
see  Husband  and  Wife,  169. 

Effect  of,  on  wife's  right  to  sue  huhband, 
see  Husband  and  Wife,  205. 

Against  incompetent,  suit  by  guardian  ad 
litem  to  set  aside,  see  Incompetent 
Persons,  28. 

Effect  of,  on  right  to  change  beneficiary  of 
policy  payable  to  wife,  see  Insurance, 
475-47T. 

Mandamus  in  aid  of  suit  to  set  aside  decree 
for,  against  insane  person,  see  Manda- 
mus, 22. 

Validity  of  divorce  according  to  Indian 
custom,  see  Marriage,  7. 

Effect  of  redemption  by  wife  of  land  of  hus- 
band sold  on  foreclosure,  where  parties 
were  subsequently  divorced,  see  Mort- 
gage, 172. 

Seduction  of  divorced  woman,  see  Seduc- 
tion, 5. 

Sequestration  of  husband's  effects,  see  Se- 
questration. 

Question  for  jury  as  to,  see  Trial,  230. 

/.  In  general. 

(See  same  heading  in  Digest  L.R.A.  1-70.) 

II.  The  suit  and  jurisdiction  thereof, 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Independent  suit  for  alimony,  see  infra,  Il- 
ls, 81,  83-93,  96. 

Abatement  of  suit  by  pendency  of  other 
suit,  see  Abatement  and  Revival,  25. 

Multifariousness  of  bill  for,  see  Action  ob 
Suit,  124. 

Review  of  finding  in  action  for,  see  Appeal 
and  Error,  983-990. 

Admission  of  incompetent  evidence  as  to 
sanity  of  defendant  in  suit,  see  Appeal 
and  Error,  1116. 

Dismissal  of  appeal  from  decree  as  punish- 
ment for  contempt,  see  Contempt,  105. 

Promise  to  discontinue  proceeding  for,  as 
consideration  for  contract,  see  Con- 
tracts, 121. 

Stipulation  as  to  damages  in  agreement  to 
convey  property  to  wife  in  considera- 
tion of  discontinuance  of  divorce  pro- 
ceedings, see  Damages,  222. 


DIVORCE  AND  SEPARATION,  II. 


937 


Retaining  petition  for  annulment  of  mar- 
riage as  statutory  proceeding  for  di- 
vorce, see  Equity,  117. 

Estoppel  to  attack  decree  for,  see  Estoppel, 
135,  136. 

Estoppel  to  maintain  second  suit  for  di- 
vorce, see  Estoppel,  45. 

Judicial  notice  in  second  proceeding  of  facts 
proved  at  first  hearing,  see  Evidence,  G. 

Admissibility,  in  wife's  suit  for  divorce,  of 
statements  by  husband,  for  whom  ap- 
pointment of  guardian  is  sought,  as  to 
her  adultery,  see  Evidence,  1311. 

Admissibility  of  confession  of  adultery,  see 
Evidence,  1230. 

Evidence  of  communications  between  di- 
vorced couple,  see  Evidence,  1317,  1318. 

Admissibility  of  evidence  upon  issue  of 
right  to,  see  Evidence,   1845. 

For  prenuptial  incontinence,  evidence  to 
show,  see  Evidence,  1964. 

SufTiciencv  of  evidenc(>  in  action  for,  see 
Evidence,  2205-2209. 

Power  of  married  woman  to  employ  attor- 
ney to  begin  or  defend  action  for,  see 
Husband  and  Wife,  37. 

Estoppel  by  commencing  suit  for,  to  deny 
husband's  death  before  commencement, 
see  Insurance,  481. 

Collateral  attack  on  decree,  see  Judgment, 
II.  c,  2,  b. 

Conclusiveness  of  judgment,  see  Judgment, 
II.  d,  3. 

Conclusiveness  of  decree  pro  confesso,  see 
Judgment,  74. 

Conclusiveness  of  decree  dismissing  bill  for, 
see  Judgaient,  112. 

Decree  rendered  in  other  state  see  Judg- 
ment, IV.  b,  2. 

Vacating  decree  for  lack  of  jurisdiction, 
see  Judgment,  391. 

Vacation  of  decree  because  of  insufficiency 
of  evidence,  see  JxnxJMENT,  340. 

Vacation  of  decree  because  of  duress,  see 
Judgment,  342. 

Collusion  as  ground  for  vacating  decree, 
see  Judgment,  341. 

Fraud  or  perjury  as  ground  for  relief 
against  divorce  decree,  see  Judgment, 
372-379. 

Time  for  seeking  relief  from  decree,  see 
Judgment,  397. 

Right  to  vacate  decree  after  death  of  party, 
see  Judgment,  327-329*,  375,  376. 

Plaintiff  suing  for,  under  full  name,  see 
Xame,  3. 

Insanity  of  defendant  as  ground  for  new 
trial,  see  New  Trial,  6. 

New  trial  for  newly  discovered  evidence,  see 
New  Trial,  68. 

Perjury  in  suit  for,  see  Perjury,  12. 

Verification  of  petition  for,  see  Pleading, 
16,  17. 

Pleading  in,  see  Pleading,  166,  167,  424- 
426. 

Cross  bill  for,  see  Pleading,  542. 

Reference  in  suit  for  divorce,  see  Refer- 
ence, 10. 

Sufficiency  of  service  of  process,  see  Writ 
AND  Process,  17,  21,  22,  73. 

1.  Courts  in  respect  to  divorce  and  ali- 
Digest  1-52  I..R.A.(N.S.) 


mony  have  only  such  jurisdiction  as  is  con- 
ferred by  statute.  State  ex  rel.  Hargert  v. 
Templeton,  25:  234,  123  N.  W.  283,  18  N.  D. 
525. 

2.  In  a  suit  for  divorce,  although  the 
complainant  and  defendant  only  are  nominal 
parties  thereto,  the  government  in  a  sense 
is  also  a  party  whose  duty  it  is  to  see  that 
public  morals  and  the  welfare  of  tlie  entire 
community  are  protected.  Hancock  v.  Han- 
cock, 15:  670,  45  So.  1020,  55  Fla.  680. 

3.  Either  party  to  a  divorce  proceeding 
who  has  asked  for  a  divorce  may  withdraw 
the  demand  at  any  time  before  the  decree 
is  entered,  and  after  such  withdrawal  the 
court  has  no  authority  to  grant  a  divorce 
in  his  or  her  favor.  Miliiman  v.  Milliman, 
22:  999,   101   Pac.  58,  45  Colo.  291. 

(Annotated) 

4.  It  is  the  duty  of  the  court  to  refuse 
a  decree  of  divorce  unless  satisfied  of  the 
sufficiency  of  the  allegations,  as  also  of  the 
truth  of  the  evidence,  to  establish  one  of 
the  statutory  grounds  for  divorce.  Han- 
cock V.  Hancock,  15:  670,  45  So.  1020,  55 
Fla.  680. 

5.  If  service  of  the  petition  and  process 
in  an  action  for  a  total  divorce  is  not  law- 
fully perfected  on  the  defendant,  it  is  error 
for  the  court,  over  his  objection  duly  made, 

,  to  proceed  to  hear  an  application  for  tempo- 
rary alimony  and  the  appointment  of  a  re- 
ceiver for  his  property,  and  to  make  the 
appointn>ent  and  direct  that  a  certain 
amount  be  paid  by  the  receiver  to  the  plain- 
tiff monthly,  and  a  specified  amount  to  her 
attorneys  for  filing  the  application  for  tem- 
porary alimony  and  prosecuting  it,  and  to 
authorize  the  receivership  to  be  dissolved  on 
the  giving  of  bond  by  the  defendant  for 
the  payment  of  the  temporary  alimony  and 
fees.  Stallings  v.  Stallings,  9:  593,  56  S.  E. 
469,    127    Ga.   464. 

6.  The  courts  of  the  state  of  the  mat- 
rimonial domicil  have  jurisdiction  of  a  suit 
for  divorce,  although  the  defendant  is  out  of 
the  jurisdiction,  and  service  of  process  is 
made  upon  him  by  publication  only.  State 
ex  rel.  Aldrach  v.  Morse,  7:  1127,  87  Pac. 
705,  31  Utah,  213.  (Annotated) 

7.  Where  the  plaintiff  in  a  suit  for  di- 
vorce has  been  actually  and  in  good  fait!) 
domiciled  in  the  state  where  the  suit  is 
brought,  for  one  year  next  preceding  the 
bringing  of  the  suit,  it  is  no  valid  reason 
against  granting  the  relief  that  the  origi- 
nal marriage  status  was  in  another  state, 
or  that  the  cause  for  which  the  divorce 
is  sought  arose  outside  of  the  state,  or  that 
the  defendant  is  a  nonresident  and  only 
constructivelv  notified.  Cartv  v.  Cartv,  38: 
297,  73  S.  E.'310,  70  W.  Va.  146. 
Residence  of  plaintiff  for  jurisdic- 
tional   purposes. 

Effect  of  appearance  to  remedy  failure  to 
allege  necessary  residence,  see  Appear- 
ance, 18. 

Vacation  of  judgment  for  fraud  as  to  resi- 
dence of  plaintiff,  see  Judgment,  377. 

Amendment  of  complaint  so  as  to  allege 
necessary  residence,  see  Pleading,  126. 

Pleading  as  to,  see  Pleading,  166,  167. 


938 


DIVORCE  AND  SEPARTION,  III.  a. 


Who  may  question  constitutionality  of  stat- 
ute as  to,  see  Statittes,  32. 
Partial  invalidity  of  statute  as  to,  see  Stat- 

tTTES,   66. 

8.  The  statutory  requirements  of  resi- 
dence to  entitle  one  to  maintain  a  suit  for 
divorce  do  not  apply  to  equitable  actions 
for  maintenance.  State  ex  rel.  Lloyd  v. 
Superior  Court,  25:  387,  104  Pac.  771,  55 
Wash.  347. 

9.  A  state  is  not  prevented  by  the  Fed- 
eral Constitution  from  fixing  the  time  of 
residence  of  one  coming  into  it  befbrg  he 
can  commence  an  action  for  divorce  in  its 
courts.  Pugh  V.  Pugh,  32:  954,  124  N.  W. 
959,  25  S.  D.  7. 

10.  Intention  by  one  removing  with  all 
his  effects  from  a  town  which  is  not  his 
domicil  of  origin,  to  retain  his  residenc? 
there,  is  not  sufficient  to  effect  that  result 
for  the  purpose  of  conferring  jurisdiction 
of  a  divorce  proceeding,  if  he  has  in  that 
place  neither  property  nor  home  nor  place 
to  which  he  has  a  right  to  return.  Turner 
V,  Turner,  47:  505,  88  Atl.  3,  87  Vt.  65. 

11.  A  husband  and  wife  lived  together 
in  the  state  within  the  meaning  of  a  stat- 
ute making  that  fact  a  prerequisite  to  ju- 
risdiction of  the  state  courts  over  a  divorce 
proceeding,  where  they  came  into  the  state 
with  the  intention  of  making  their  home 
there,  and  after  remaining  a  few  days  look- 
ing for  apartments  selected  one  and  sent 
their  belongings  there,  although  before  tak- 
ing up  a  residence  in  the  apartment,  the 
husband  left  the  state  on  business  and  never 
returned.  Winans  v.  Winans,  28:  992,  91 
N.  E.  394,  205  Mass.  388. 

12.  A  married  woman  is  an  "actual  resi- 
dent" of  the  state  of  Minnesota,  within  the 
meaning  of  Minn.  Rev.  Laws  1905,  §  3597, 
and  may  maintain  an  action  for  a  limited 
divorce,  if  she  has  a  legal  domicil  or  estab- 
lished residence  in  the  state,  as  distinguished 
from  a  temporary  abode.  Bechtel  v.  Bechtel, 
12:  1 100,  112  N.  W.  883,  101  Minn.  511. 

13.  A  wife  compelled  by  her  husband, 
imder  threat  of  withdrawing  all  allowance 
for  her  support,  to  remove  from  the  state 
of  Minnesota  to  another  state,  and  who 
complies  with  his  command,  but  without  in- 
tention of  abandoning  her  home  in  the  state 
of  Minnesota,  is  an  "actual  resident"  there- 
in, within  the  meaning  of  Minn.  Rev.  Laws 
1905,  §  3597,  providing  that  a  married 
woman  who  is  an  actual  resident  of  the 
state  may  maintain  an  action  therein  for 
a  limited  divorce.  Bechtel  v.  Bechtel, 
12:  1100,    112    N.    W.    883,    101    Minn.    511. 

(Annotated) 

14.  A  man  cannot  change  the  matrimo- 
nial domicil  by  abandoning  his  wife  and  go- 
ing into  another  state  to  reside.  State  ex 
rel.  Aldrach  v.  Morse,  7:  1127,  87  Pac.  705, 
31   Utah,  213. 

15.  A  wife  who  has  separated  from  her 
husband  and  gone  to  the  home  of  a  relative 
to  live,  with  the  intention  of  making  it  her 
home,  establishes  there  a  residence  so  as  to 
give  the  courts  of  the  county  jurisdiction 
of  a  suit  by  her  for  divorce.  McClintock  v. 
Digest  1-52  L.R.A.(N.S.) 


McClintock,  39:  1127,  144  S.  W.  68,  147  Ky. 

409. 

16.  A  woman  cannot,  by  leaving  her 
husband  and  removing  to  another  state  be- 
cause there  had  been  a  few  quarrels  be- 
tween them  over  property,  without  violence 
or  mental  distress  which  would  destroy 
her  health,  acquire  "an  actual  bona  fide 
residence"  there,  within  the  meaning  of 
the  statutes  of  the  state  conferring  juris- 
diction in  divorce  cases.  Sneed  v.  Sneed, 
40:  99,  123  Pac.  312,  14  Ariz.   17. 

17.  A  wife  deserted  by  her  husband  with- 
out cause,  at  the  marital  domicil  in  one 
state,  may  acquire  in  good  faith  a  sepa- 
rate domicil  in  another  state,  and  obtain 
a  divorce  under  its  laws  on  the  ground  of 
desertion,  though  the  husband  is  a  nonresi- 
dent and  is  only  constructively  served  by 
publication.  Carty  v.  Carty,  38:  297,  73 
S.  E.  310,  70  W.  Va.  146.  (Annotated) 

III.  Grounds. 

a.  Cruelty;  ill  treatment. 

(See  also   same   heading   in  Digest  L.R.A. 
1-10.) 

Defense  to  action  for  divorce  because  of,  see 

infra,  68. 
Condonation  as  defense,  see  infra,  76. 
Presumption  that  trial  court  inferred  bodily 

harm,  see  Appeal  and  Ebrob,  442. 
Review  on  appeal  of  findings  as  to  mental 

suffering,  see  Appeal  and  Error,  983. 
Necessity    of    corroboration    of    testimony 

of   plaintiff  as  to   infliction   of   mental 

suffering,  see  Evidence,  2207. 
Sufficiency  of  allegations  as  to  cruelty,  see 

Pleading,  424. 

18.  Unjustifiable  conduct  on  the  part  of 
husband  or  wife  which  utterly  destroys  the 
legitimate  ends  and  objects  of  matrimony 
may  constitute  extreme  cruelty,  justifying 
a  divorce.  Miller  v.  Miller,  34:  360,  131  N. 
W.  203,  89  Neb.  239. 

19.  Incompatibility  of  tastes  of  temper- 
ament, or  estrangement  produced  by  differ- 
ences of  opinion  growing  out  of  the  adminis- 
tration of  household  affairs,  when  not  ac- 
companied by  physical  violence,  and  when  it 
will  not,  by  operating  through  the  mental 
faculties,  produce  injury  to  the  physical 
system,  does  not  constitute  extreme  cruel- 
ty sufficient  to  warrant  the  granting  of  an 
absolute  divorce  therefor.  Barker  v.  Bark- 
er, 26:  909,  105  Pac.  347,  25  Okla.  48. 

20.  Divorce  on  the  ground  of  extreme 
cruelty  will  be  denied  where  there  is  no  ac- 
tual violence,  unless  the  treatment  or  abuse 
or  neglect  or  bad  conduct  complained  of  is 
such  as  damages  health  or  renders  cohabi- 
tation intolerable  or  unsafe,  or  unless  there 
are  threats  of  mistreatment  of  such  flagrant 
kind  as  to  cause  reasonable  and  abiding  ap- 
prehension of  bodily  violence,  so  as  to  ren- 
der it  impracticable  to  discharge  marital 
duties.  Hancock  v.  Hancock,  15:  670,  45  So. 
1020,   55   Fla.    680. 


DIVORCE   AND   SEPARATION,   III.   a. 


939 


21.  Actual  violence,  to  constitute  ground 
for  divorce,  must  be  attended  with  danger 
to  life,  limb,  or  health,  or  be  sucli  as  to 
cause  reasonable  apprehension  of  such  dan- 
ger. Huff  V.  Huff,  51:  282,  80  S.  E.  846.  73 
W.  Va.  330. 

22.  Violence  and  assault  are  not  neces- 
sary to  bring  a  case  within  a  statute  per- 
mitting a  divorce  for  cruel  and  inhuman 
treatment,  such  treatment  being  sufficient 
as  indicates  a  settled  aversion  to  the  wife, 
sufficient  permanently  to  destroy  her  peace 
and  happiness.  Hooe  v.  Hooe,  5:  729,  92  S. 
W.   317,   122   Ky.   590. 

23.  Under  a  statute  permitting  the  court 
to  grant  a  separation  for  such  cause  as,  in 
its  discretion,  it  may  deem  sufficient,  one 
may  be  granted,  with  separate  maintenance, 
to  a  wife  whose  husband  has  treated  her 
with  indifference  and  neglect,  and  said  and 
done  things  in  the  presence  of  strangers  to 
annoy  and  humiliate  her,  has  exhibited  rage 
towards  her  without  cause,  and  told  her 
they  must  separate,  the  effect  of  which  has 
been  to  make  her  ill.  McClintock  v.  Mc- 
Clintock,  39:  1 127,  144  S.  W.  68,  147  Ky. 
409. 

24.  The  conduct  of  a  husband  in  com- 
pelling his  wife  to  remove  to  another  state 
and  remain  there,  under  threat  of  with- 
drawing all  allowance  for  her  support,  cou- 
pled with  other  slights  and  acts  of  ill  treat- 
ment, leading  up  to  her  expulsion  from  the 
state,  entitles  her  to  a  limited  divorce,  al- 
though his  conduct  has  not  impaired  her 
health.  Bechtel  v.  Bechtel,  12:  1100,  112  N. 
W.  883,  101  Minn.  511. 

25.  A  divorce  will  not  be  granted  for 
nonsupport  or  extreme  cruelty,  because  an 
out-door  laborer  earning  $35  a  month  con- 
sumes a  portion  of  it  for  liquor  and  cigars, 
paying  only  the  grocery,  meat,  and  coal 
bills,  and  when  he  reaches  home  after  his 
work  prefers  to  read  or  go  to  bed  rather 
than  to  talk  to  his  wife,  or  take  her  out 
to  entertainments  or  to  visit  friends.  Bow- 
en  v.  Bowen,  51:460,  146  N.  W.  271,  179 
Mich.    574.  (Annotated) 

26.  That  a  wife  united  with  a  religious 
sect,  and  thereafter,  in  accordance  with  the 
tenets  thereof,  refused  to  accord  her  hus- 
band marital  rights;  that  she  became  en- 
raged at  his  refusal  to  submit  all  their 
property  to  such  religious  society;  and  that 
she  constantly  eluded  him  for  his  sinfulness, 
and  sought  to  estrange  his  children  from 
him  by  maligning  and  abusing  him  in  their 
presence, — is  not  sufficient  to  authorize  a 
divorce  for  extreme  cruelty  of  the  wife, 
since,  to  warrant  a  divorce  therefor,  the 
conduct  must  be  such  as  will  endanger  life 
or  health,  or  will  cause  a  reasonable  appre- 
hension of  bodily  harm,  and,  while  the  in- 
jury may  be  mental,  it  must  be  such  as  to 
render  it  impracticable  for  the  complainant 
to  discharge  marital  duties  with  reasonable 
safety;  mere  inconvenience,  unhappiness,  or 
incompatibility  of  temperament  or  disposi- 
tion, rendering  the  marital  relation  dis- 
agreeable and  burdensome,  not  being  suffi- 
cient. Prall  V.  Prall,  26:  577,  50  So.  867,  58  . 
Fla.  496. 

Digest   1-52  I-.R.A.(N.S.) 


Charges     of    adultery     or    bad     char- 
acter. 

See  also  infra,  34. 

27.  The  mere  fact  that  a  husband  and 
wife  are  living  apart  when  false  charges 
of  adultery  are  wantonly  made  by  one 
spouse  against  the  other  does  not,  of  itself, 
prevent  such  charges  from  constituting  ex- 
treme cruelty,  which  will  justify  a  divorce; 
the  fact  of  separation  being  relevant  and 
important  only  as  it  may  aid  in  determin- 
ing the  question  whether  such  charges 
caused  great  mental  suffering  in  the  part 
of  the  spouse  wantonly  and  falsely  accused. 
Miller  v.  Miller,  34:  360,  131  N.  W.  203, 
89  Neb.  239.  (Annotated) 

28.  Charging  one's  wife  with  adultery, 
without  reasonable  or  probable  cause,  is  not 
intolerable  severity,  within  the  meaning  of 
a  statute  permitting  a  divorce  on  that 
ground,  although  it  causes  her  much  mental 
suffering,  where  it  does  not  cause  her  bodily 
harm  or  reasonable  apprehension  of  it. 
Mathewson  v.  Mathewson,  18:  300,  69  Atl. 
646,  81  Vt.  173.  (Annotated) 

29.  Statements  or  insinuations  made  by 
a  husband,  reflecting  upon  the  conduct  or 
character  of  his  wife,  do  not  constitute  a 
ground  for  divorce,  where  they  are  caused 
by  the  wife's  improprieties  and  indiscretions. 
Mosher  v.  Mosher,  12:  820,  113  N.  W.  99, 
16  N.  D.  269. 

30.  A  single  false  charge  by  affidavit  by 
a  wife  to  a  fraternal  order  of  which  her 
husband  is  a  member,  for  the  purpose  of 
lowering  him  in  the  estimation  of  his  asso- 
ciates, to  the  effect  that  he  is  a  drunkard, 
a  lewd  and  dissolute  person,  unfit  to  be  a 
member  of  any  fraternal  organization,  and 
that  he  had  admitted  that  were  it  not  for 
his  parents  he  would  adopt  the  method  of 
living  on  the  earnings  of  a  prostitute  with 
whom  he  had  consorted  after  marriage,  may 
cause  grievous  mental  pain  and  suffering 
within  the  meaning  of  a  statute  permitting 
a  divorce  for  such  cause.  MacDonald  v. 
MacDonald,  25:  45,  102  Pac.  927,  155  Cal. 
665. 

Bringing   another  'woman  into  hom^. 

31.  Cruel  and  inhuman  treatment,  en- 
titling a  wife  to  divorce,  is  shown  by  her 
husband's  bringing  another  woman  into  the 
home,  and  exhibiting  towards  her  marked 
attention  and  signs  of  affection,  telling  her 
of  his  love  in  the  presence  of  his  wife, 
and  informing  his  wife  that  he  no  longer 
cares  for  her,  cannot  stand  it  to  live 
with  her,  and  is  going  to  leave  her,  in  conse- 
quence of  which  the  wife's  health  becomes 
seriously  affected.  Craig  v.  Craig,  2:  669, 
105  N.  W.  446,  129  Iowa,  192.       (Annotated) 

32.  To  introduce  into  the  bedroom  of  an 
invalid  wife  a  loose  woman  in  an  almost 
nude  condition,  coupled  with  lewd  behavior, 
constitutes  extreme  cruelty,  under  the  di- 
vorce law.  Hooker  v.  Hooker,  43:  964,  61 
So.  121,  65  Fla.  53.  (Annotated) 
Profane    and    obscene    language. 

33.  The  habitual  use  of  profane  language 
and  the  telling  of  obscene  stories  by  a  wife 
to  her  husband  and  to  third  parties  in  his 
presence     and     against     his     wishes,     are 


940 


DIVORCE   AND   SEPARATION,   III.   b. 


ground  for  divorce  in  North  Dakota,  where 
it  appears  that  the  mental  and  other  char- 
acteristics of  the  husband  are  such  that  this 
course  of  conduct  on  the  part  of  the  wife 
causes  him  humiliation  and  grievous  mental 
suffering.  Mosher  v.  Mosher,  12:  820,  113 
N.  W.  99,  16  N.  D.  269.  (Annotated) 

34.  Calling  a  wife  vile  names,  and  accus- 
ing her  of  infidelity,  are  within  the  opera- 
tion of  a  statute  allowing  a  divorce  for 
personal  indignities  rendering  life  burden- 
some. Page  V.  Page,  6:  914,  86  Pac.  582,  43 
Wash.  293. 

Fault   finding;    threats. 
See  also  supra,  24. 

35.  A  continuous  course  of  fault  finding, 
threats,  and  other  acts,  intended  to  ag- 
gravate and  annoy  the  other  party  to  a 
marriage,  though  each  act  is  trifling  in  it- 
self, may  cause  such  a  degree  of  mental  suf- 
fering as  to  constitute  a  ground  for  di- 
vorce on  the  charge  of  extreme  cruelty. 
Mosher  v.  Mosher,  12:  820,  113  N.  W.  99, 
16  N.  D.  269. 

Failure    to    provide    for    vrife. 
See  also  supra,  25. 

36.  Where  a  husband,  having  sufficient 
ability,  without  just  cause,  fails  and  abso- 
lutely refuses  to  contribute  anything  to  the 
support  of  his  wife,  the  court  may  grant  a 
decree  of  divorce.  Svanda  v.  Svanda,  47: 
666,  140  N.  W.  777,  93  Neb.  404. 

37.  A  man's  failure  to  furnish  support 
to  his  wife  for  a  period  of  years,  because 
of  inability  to  secure  profitable  employment, 
is  not  within  a  statute  allowing  a  divorce 
for  wanton  and  cruel  neglect  and  failure 
to  furnish  her  with  support.  Carson  v. 
Carson,  43:  255,  138  N.  W.  1076,  173  Mich. 
452.  (Annotated) 

>  ft.  Desertion. 


(See  also   same   heading   in   Digest   L.R.A. 
1-10.) 

Nonsupport,  see  supra,  25,  36,  37. 
Defense  to  action  on  ground  of,  fee  infra, 
.     69-71. 

,  38.  Voluntary  separation  does  not 
amount  to  "desertion,"  nor  can  desertion  be 
inferred  from  the  mere  fact  that  the  parties 
do  not  live  together.  Freeman  v.  Freeman 
(N.  J.  Err.  &  App.)  49:  1042,  88  Atl.  1071, 
82  N.  J.  Eq.  360. 

39.  Under  Cobbey's  (Neb.)  Stat.  1907, 
§  5328,  declaring  it  to  be  a  ground  for  di- 
vorce "where  either  party  wilfully  aban- 
dons the  other  without  just  cause  for  a  pe- 
riod of  two  years,"  not  only  must  the  act 
of  desertion  or  abandonment  be  wilful,  but 
it  must  be  wilfully  continued  for  a  period 
of  two  years.  Kirkpatrick  v.  Kirkpatrick, 
16:  1071,  116  N.  W.  499,  81  Neb.  627. 

40.  Under  the  New  Jersey  statute  the 
desertion  of  one  spouse  by  another  is  justi- 
fied only  when  the  deserting  party  has  been 
so  offended  against  as  to  authorize,  at  his 
or  her  instance,  a  decree  of  divorce  or  ju- 
dicial separation,  and  the  guilt  of  the  of- 
Digest  1-52  L.R.A.(N.S.) 


fending  party  must  appear  by  clear  and 
satisfactory  proof.  Rogers  v.  Rogers  (N. 
J.  Err.  &  App.)  46:  711,  86  Atl.  935,  81  N. 
J.  Eq.  479. 

41.  Altliough  it  is  ordinarily  the  duty 
of  a  husband  who  has  been  dosertod  by  his 
wife  to  make  proper  ai)proaches  to  her  and 
sincere  efforts  to  induce  her  to  return  to 
him,  where  it  is  apparent  that  such  ap- 
proaches and  eflTorts  would  be  cntiri'ly  fu- 
tile, no  such  duty  devolves  upon  him, 
Rogers  v.  Rogers  (N.  J.  Err.  &  App.)  46: 
711,  86  Atl.  935,  81  N.  J.  Eq.  479. 

42.  Where  a  wife  deserts  her  husband, 
and  refuses  to  return  to  him  unless  lie  ac- 
cedes to  the  imposition  of  unlawful  and  un- 
reasonable conditions,  removes  her  furni- 
ture from  his  house,  and  brings  a  suit  for 
alimony,  such  wilful,  continued,  and  obsti- 
nate desertion  is  shown  as  excuses  the  hus- 
band from  making  approaches  to  her  in  an 
effort  to  induce  her  to  return  to  him. 
Rogers  v.  Rogers  (N.  J.  Err.  &  App.)  46: 
711,  86  Atl.  935,  81  N.  J.  Eq.  479. 

43.  The  mere  fact  of  a  failure  to  provide 
sufficient  support  for  a  wife  does  not  con- 
stitute desertion  by  the  husband  under  the 
New  Jersey  desertion  statute.  Rogers  v. 
Rogers  (N.  J.  Err.  &  App.)  46:  711,  86  Atl. 
935,  81  N.  J.  Eq.  479. 

44.  Desertion  which  will  warrant  a  di- 
vorce is  not  shown  where  an  aged  man  who 
has  lost  his  property  and  is  no  longer  able 
to  work  to  support  his  wife  leaves  her,  with 
licr  consent,  for  the  purpose  of  securing  a 
home  with  his  relatives.  Lewis  v.  I^ewis, 
52:  675,  141  Pac.  367,  167  Cal.  732. 

45.  Abandonment  is  not  a  ground  for  di- 
vorce under  Cobbey's  (Neb.)  Stat.  1907, 
§  5328,  authorizing  a  divorce  "where  either 
party  wilfully  abandons  the  other  without 
just  cause  for  a  period  of  two  years,"  when 
the  offending  party  remained  sane  for  less 
than  two  years  after  the  abandonment;  nor 
does  a  cause  of  action  for  divorce  accrue  to 
the  injured  party  until  the  lapse  of  two 
j'ears  exclusive  of  the  time  during  which 
the  offending  party  remained  insane.  Kirk- 
patrick v.  Kirkpatrick,  16:  1071,  116  N.  W. 
499,  81  Nob.  627.  (Annotated) 

46.  A  iiusband  who  leaves  his  home, 
after  being  twice  ordered  therefrom,  be- 
cause of  the  wife's  long-continued  abuse, 
attempts  to  take  his  life,  and  refusal  to 
continue  the  marital  relation,  under  cir- 
cumstances showing  that  furtlier  effort  to 
induce  her  to  live  with  him  would  have 
been  unavailing,  and  perhaps  would  have 
caused  her  to  take  his  life'  is  entitled  to 
a  divorce  on  the  ground  of  wilful  and  ob- 
stinate desertion.  Hudson  v.  Hudson,  29: 
614,  51  So.  857,  59  Fla.  529.       (Annotated) 

47.  The  essence  of  a  wilful,  obstinate  de- 
sertion by  a  wife  consists  in  her  refusing  to 
live  with  her  husband  when  he  does  his 
marital  dutv,  and  wants  her  to  live  with 
him.  Hill  v.  Hill,  39:  1117,  56  So.  941,  62 
Fla.  493. 

48.  Wiiere  a  very  young  wife,  without 
her  husband's  consent,  goes  to  her  parents' 
home,  and  soon  thereafter  the  first  child  of 
the  couple  is  born  at  her  parents'  home,  and 


DIVORCE  AND   SEPARATION,  III.   c,  d. 


941 


the  liusband  makes  no  proper  effort  in  the 
discharge  of  his  duty  to  the  wife  and  child, 
and  the  wife  and  child  remain  with  her 
parents,  he  is  not  entitled  to  a  divorce  on 
the  statutory  ground  of  a  wilful,  obstinate 
desertion  by  his  wife.  Hill  v.  Hill,  39:  11 17, 
56  So.  941,  62  Fla.  493.  (Annotated) 

49.  Though  a  husband  has  the  legal 
right  to  determine  the  place  of  abode  of  the 
family,  and  the  wife  must  submit  to  his 
decision,  this  power  mvist  be  exercised  in  a 
reasonable  and  just  manner,  and  it  cannot 
be  exercised  arbitrarily,  nor  used  as  a 
means  of  procuring  dissolution  of  the 
marital  relation.  Hall  v.  Hall,  34:  758,  71 
S.  E.  103,  69  W.  Va.  175.  (Annotated) 

50.  Refusal  by  an  English  woman  to  ac- 
company her  husband  upon  his  emigration  to 
this  country  to  better  his  condition  in  life, 
without  other  excuse  than  disinclination  to 
leave  her  native  land,  is  desertion  which 
will  entitle  him  to  a  divorce.  Franklin  v. 
Franklin,  4:  145,  77  N.  E.  48,  190  Mass.  349. 

( Annotated ) 
Refnsal  to  liave  sexual  intercourse. 
See  also  supra,  46. 

51.  The  mere  refusal  of  a  wife  for  over 
a  year  to  accord  her  husband  marital  priv- 
ileges, in  accordance  with  the  tenets  of  a 
religious  sect  with  which  she  has  become 
affiliated,  is  not  of  itself  such  a  desertion 
of  the  husband  as  authorizes  him  to  secure 
a  divorce  for  wilful,  obstinate,  and  con- 
tinued desertion  for  one  year.  Prall  v. 
Prall,  26:  577,  50  So.  867,  58  Fla.  496. 

c.  Drunlcenness ;  use  of  morphine. 

(See  also   same    heading   in   Digest   L.R.A. 

1-10.) 

52.  To  come  within  the  operation  of  a 
statute  allowing  a  divorce  for  habitual 
drunkenness,  one  need  not  be  constantly 
drunk  or  incapacitated  from  transacting 
his  business;  it  being  sufficient  if  he  lias 
the  fixed  habit  of  frequently  and  repeated- 
ly getting  drunk  when  opportunity  offers, 
or  has  lost  the  will  power  to  resist  tempta- 
tion in  that  respect.  O'Kane  v.  O'Kane, 
40:  655,  147  S.  W.  73,  103  Ark.  382. 

( Annotated ) 

53.  One  is  an  habitual  drunkard,  within 
the  meaning  of  the  divorce  laws,  who  has 
the  fixed  habit  of  frequently  geHing  drunk, 
although  he  has  more  sober  than  drunken 
hours,  and  the  habit  does  not  incapacitate 
him  from  performing  during  the  working 
hours  of  the  day  ordinary  unskilled  manual 
labor.  Page  v.  Page,  6:  914,  86  Pac.  582, 
43  Wash.   293.  (Annotated) 

d.  Imprisonment;  mrscellaneous. 

(See  also  same  heading ,  in  Digest  LM.A. 

1-10.)       ,      '  !w     MiU    -nifiiMV-';     •■<" 

Sufficiency   of   evidence   as  to  grounds,    see 

Evidence,  2205-2209. 
Annulment    of     marriage    or     divorce    for 

causes  rendering  the  marriage  invalid, 

see  Mauri.\ge,  IV. 
.digest   1-52   L.R.A.(N.S.) 


54.  It  is  not  the  policy  of  the  law  to 
grant  a  divorce  for  a  postnuptial  cause, 
short  of  marital  infidelity,  when  the  cause 
does  not  in  fact  render  one  of  the  parties 
incapable  of  performing  the  duties  incident 
to  the  marriage  status.  Hancock  v.  Han- 
cock, 15:  670,  45  So.  1020,  55  Fla.  680. 

55.  The  time  during  which  the  parties 
have  lived  apart  under  and  by  virtue  of  a 
decree  of  separation  from  bed  and  board 
may  be  counted  as  part  of  the  period  of  a 
separation  for  which  an  absolute  divorce 
may  be  obtained.  Cooke  v.  Cooke,  49:  1034, 
80  S.  E.  178,  164  N.  C.  272. 

56.  The  refusal  of  a  man  to  permit  his 
wife  actively  to  control  hi«  business  is  no 
ground  for  granting  her  a  divorce,  although 
it  results  in  bickerings  and  inability  to  live 
harmoniously  together.  Root  v.  Root,  32: 
837,  130  N.  W.  194,  164  Mich.  638. 
Flirting. 

57.  Mere  indiscreet  or  imprudent  conduct 
and  relations  with  young  men  on  the  part 
of  a  married  woman,  all  embraced  under 
the  general  term  "flirting,"  is  not  cause  for 
divorce.  Hancock  v.  Hancock,  15:  670,  45 
So.  1020,  55  P'la.  680. 

Viciousness   and   degeneracy.  1' 

58.  Vulgar,  indecent,  and  unnaturar con- 
duct on  the  part  of  a  wife,  and  her  solicita- 
tion of  the  husband  to  engage  in  sucii  con- 
duct with  her,  showing  viciousness  and  de- 
generacy on  her  part,  are  not  sufficient 
grounds  for  divorce,  nor  do  they  justify 
the  husband  in  breaking  off  cohabitation 
with  her  and  treating  hei-  as  having  aban- 
doned or  deserted  him.  Huff  v.  Huff, 
51:  282,  80  S.  El  846,  73  W.  Va.  330. 

( Annotated ) 
Imprisonment. 
Statute    of    limitations    as    a    defense,    see 

infra,  63. 
Taking  imprisonment  into  consideration  in 

disposing   of   application    for    alimony, 

see  infra,  79. 

59.  The  right  to  a  divorce,  conferred  by 
Ga.  Civ.  Code  1895,  §  2426,  par.  8,  upon  the 
conviction  of  either  party  for  an  offense  in- 
volving moral  turpitude,  and  under  which 
the  offending  party  is  sentenced  to  impris- 
onment in  a  penitentiary  for  a  term  of  two 
years  or  more,  is  not  affected  by  an  execu- 
tive pardon  granted  after  such  a  sentence 
has  been  imposed.  Holloway  v.  HoUoway, 
7:  272,  55  S.  E.  191,  126  Ga.  459. 

(Annotated) 
00.  Voluntary  manslaughter  is  an  of- 
fense involving  moral  turpitude,  within  the 
meaning  of  Ga.  Civ.  Code  1895,  §  2426,  par. 
8,  specifying  as  a  ground  for  divorce  the 
conviction  of  either  party  for  an  offense  in- 
volving moral  turpitude.  Holloway  v.  Hol- 
loway, 7:  272,  55  S.  E.  191,  126  Ga.  459. 

61.  The  rule  of  courts  of  equity,  deny- 
ing relief  to  a  party  because  of  his  own 
inequitable  conduct  in  and  about  the  sub- 
ject-matter of  his  cause  of  action,  applies 
in  siwts  for  divorce.  Hall  v.  Hall,  34:  758, 
71  S.  E.  103,  69  VV.  Va.  175. 


942 


DIVORCE  AND  SEPARATION,  IV. 


IV.  Defenses;    connivance;    recrimina- 
tion. 

^8ee  also   same   heading   in   Digest   L.R.A. 
ir.         1-10.) 

Striking  out  defense  in  divorce  suit  for 
^         failure  to  obey  order  as  to  payment  of 

alimony,  see  Constii'Utional  Law,  578. 
Vacation    of    decree    secured    by    collusion, 

see  Judgment,  341,  342,  372-379. 

62.  An  absolute  divorce  cannot  be  de- 
nied to  one  establishing  a  statutory  ground 
therefor,  because  she  had  a^lready  obtained 
one  divorce  and  another  had  been  granted 
against  her  for  her  own  fault,  while  proper 
investigation  on  her  part  would  have  shown 
her  that  her  latest  matrimonial  venture 
could  not  be  a  happy  one,  although  the  stat- 
ute provides  that  the  divorce  may  be  grant- 
ed whenever,  in  the  opinion  of  the  court, 
the  circumstances  of  the  case  shall  be  such 
that  it  will  be  discreet  and  proper  so  to  do. 
Orton  v.  Orton,  26:  276,  123  N.  W.  1103, 
159  Mich.  236. 

63.  The  court  must  enforce  of  its  own 
motion,  although  defendant  makes  default, 
a  provision  in  a  statute  authorizing  divor- 
ces, that  a  divorce  must  be  denied  when  the 
cause  is  conviction  of  felony,  unless  the  ac- 
tion is  commenced  within  a  certain  time 
after  final  judgment  and  sentence.  Frank- 
lin V.  Franklin,  26:  490,  106  Pac.  353,  40 
Mont.  348.  (Annotated) 

64.  Illicit  relations  with  a  woman  before 
marrying  her  will  not  deprive  a  man  of  the 
benefit  of  a  statute  entitling  him  to  a  di- 
vorce in  case,  without  his  knowledge,  she 
was  at  the  time  of  the  marriage  pregnant 
by  another.  Wallace  v.  Wallace,  14:  544, 
114  N.  W.  527,  137  Iowa,  37. 

65.  That  a  man  had  illicit  sexual  rela- 
tions with  his  wife  before  marriage,  and 
married  her  while  she  was  an  inmate  of  a 
house  of  prostitution,  does  not  destroy  his 
right  to  a  divorce  for  her  refusal  to  leave 
such  house,  and  continued  acts  of  adultery. 
Roote  V.  Roote,  23:  240,  33  App.  D.  C.  398. 

,■  (Annotated) 

'  66.  That  a  man  maliciously  turned  his 
wife  out  of  doors  is  no  defense  to  a  suit  by 
him  for  divorce  on  the  ground  of  her  sub- 
sequent adultery,  where  she  could  have 
maintained  an  action  for  separate  mainte- 
nance. Ellett  V.  Ellett,  39:  1135,  72  S.  E. 
861.   157  N.  C.   161.  (Annotated) 

67.  The  right  to  a  divorce  because  of  a 
grievous  mental  suffering  due  to  false  char- 
ges made  by  one  party  to  a  marriage  con- 
tract against  the  other  is  not  destrojed  by 
the  fact  that  at  the  time  they  were  made 
the  parties  had  separated  and  were  not  living 
together.  MacDonald  v.  MacDonald,  25: 
45,  102  Pac.  927,  155  Cal.  665. 

08.  Cruel  treatment  of  a  wife  is  not  jus- 
tified by  unwelcome  and  too  frequent  vis- 
itations from  her  family.  Hooe  v.  Hooe, 
5:  729,  92  S.  W.  317,  122  Ky.  590. 

69.  The  conduct  of  a  plaintiff"  in  a  suit 
for  a  limited  divorce  on  the  ground  of  ile- 
sertion  may,  although  not  sufficient  to 
Digest  1-52  L.R.A.(N.S.) 


justify  the  desertion,  nevertheless  be  suf- 
ficient to  preclude  relief.  Hall  v.  Hall,  34: 
758,  71  S.  E.  103,  69  W.  Va.  175. 

70.  The  wife,  when  sued  for  divorce  on 
the  ground  of  wilful  and  continued  deser- 
tion, may,  under  a  statute  providing  that 
in  all  cases  the  party  sued  may  plead  in 
defense  the  conduct  of  the  party  suing, 
and  the  jury  may,  on  examination  of  the 
whole  case,  refuse  a  divorce,  set  uj)  as  a  de- 
fense tliereto,  adulterous  acts  of  the  lius- 
band  which  occurred  subsequent  to  other 
adulterous  acts  on  his  part  which  had  been 
condoned  by  her.  Davis  v.  Davis,  30:  73,  68 
S.  E.  594,  134  Ga.  804. 

71.  The  fact  that  plaintiff  has  wrong- 
fully abandoned  the  defendant  does  not  af- 
fect the  right  to  a  divorce  under  a  statute 
the  only  conditions  imposed  by  which  are 
that  there  shall  have  been  a  separation  of 
husband  and  wife  continuing  for  ten  suc- 
cessive years,  that  they  shall  have  resided 
in  the  state  for  that  period,  and  that  there 
are  no  living  children  of  the  marriage. 
Cooke  V.  Cooke,  49:  1034,  80  S.  E.  178,  164 
N.  C.  272.  (Annotated) 
Condonation. 

72.  Condonation  of  ill  treatment  is  re- 
voked, and  the  original  cause  for  divorce 
revived,  by  the  express  terms  of  N.  D.  Rev. 
Code  1905,  §  4061,  where  the  guilty  party 
thereafter  resumes  the  former  course  of  ill 
treatment.  Mosher  v.  Mosher,  12:  820,  113 
N.   W.  99,  16  N.  D.  269. 

73.  Under  a  statute  permitting  divorce 
for  desertion  for  three  years  next  preced- 
ing the  filing  of  the  libel,  renewal  of  co- 
habitation as  man  and  wife,  even  for  four 
days  after  the  three  years  have  expired,  re- 
moves the  cause  of  divorce,  which  is  not  re- 
vived by  renewed  desertion  at  the  expira- 
tion of  the  four  days.  Laflamme  v.  La- 
flamme,  39:  1133,  96  N.  E.  62,  210  Mass. 
156.  (Annotated) 

74.  The  possession  of  a  loathsome  dis- 
ease by  a  man  is  not  condoned  by  cohabita- 
tion with  him  by  his  wife  with  knowledge 
of  the  fact,  so  as  to  bar  a  suit  for  divorce. 
Hooe  V.  Hooe,  5:  729,  92  S.  W.  317,  122  Ky. 
590.  (Annotated) 

75.  Continued  cohabitation  does  not  con- 
done the  communication  of  syphilis  by  a 
man  to  his  wife.  Muir  v.  Muir,  4:  909,  92 
S.  W.  314,  133  Ky.  125. 

76.  Prior  acts  of  cruelty  are  condoned  by 
the  dismissal  by  a  wife  of  a  suit  for  divorce  • 
on  that  ground,  and  her  resumption  of 
marital  relations,  so  that  they  cannot  be 
considered  in  a  subsequent  petition  for  di- 
vorce. Root  V.  Root,  32:  837,  130  N.  W. 
194,  164  Mich.  638. 

77.  The  wife,  when  sued  for  divorce  on 
the  ground  of  wilful  and  continued  deser- 
tion, cannot  set  up  adulterous  acts  of  the 
husband  as  a  defense  thereto  under  a  stat- 
ute providing  that  in  all  cases  the  party 
sued  may  plead  in  defense  the  conduct  of 
the  party  suing,  and  the  jury  may,  on  ex- 
amination of  the  whole  case,  refuse  a  di- 
vorce, where  such  acts  of  adultery  occurred 
previous   to    the    desertion,    were    condoned 


DIVORCE  AND  SEPARATION,  V.  a. 


943 


by  the  wife  with  full  knowledge  thereof, 
and  were  not  revived  by  the  conduct  of  the 
husband  after  being  so  condoned.  Davis  v. 
Davis,  30:  73,  68  S.  E.  594,  134  Ga.  804. 

78.  Forgiveness,  by  a  wife,  of  her  hus- 
band's conduct  with  a  woman  whom  he  has 
brought  into  tlie  home,  does  not  amount 
to  a  condonation,  which  will  prevent  her 
securing  a  divorce,  if  he  continues  to  act 
as  before.  Craig  v.  Craig,  2:  669,  105  N.  W. 
446,  129  Iowa,  192. 

V.  Alimony. 

a.  In  general. 

(See  aho  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  other  property  rights,  see  infra,  VI. 

Finality  of  decree  for,  see  Appeal  and 
Error,  25. 

Review,  on  appeal,  of  award  of  alimony,  see 
Appeal  and  Error,   983-990. 

Peview  of  finding  as  to  finality  of  decree 
for,  see  Appeal  and  Error,  990. 

Provision  in  decree  that  application  for 
appeal  should  render  provision  for  ali- 
mony ineffectual,  see  Appeal  and  Er- 
ror, 1533. 

Hffect  of  appearance  on  necessity  for  per- 
sonal service  of  notice  of  petition  for 
alimony,  see  Appearance,  14. 

Assignment  of  decree  for,  see  Assignment, 
4. 

Contract  to  share  alimony  with  attorney, 
see  Appeal  and  Error,  439;  Con- 
tracts, 466. 

Effect  of  discharge  in  bankruptcy  on  liabil- 
ity for,  see  Bankruptcy,  171. 

Striking  out  defense  in  divorce  suit  for 
failure  to  obey  order  as  to  payment  of 
alimony,  see  Constitutional  Law,  578. 

Contempt  in  failing  to  pav  alimony,  see 
Contempt,  40,  68,  105, 'l07,  110,  111. 

Allowance  against  estate  of  decedent,  of 
alimony  accruing  between  divorce  and 
remarriage  of  decedent's  wife,  see 
Courts,  242. 

Jurisdiction  of  equity  to  enforce  decree  for 
alimony  rendered  in  other  state,  see 
Equity,  44. 

Evidence  as  to  alimony,  see  Evidence,  988. 

Enforcement  of  claim  for  alimony  against 
exemptions,   see  Exemptions,  20. 

Effect  of  divorce  without  alimony  on  hus- 
band's duty  to  maintain  wife,  see  Hus- 
band and  Wife,  10. 

Conveyance  by  husband  in  fraud  of  wife 
suing  for  divorce,  see  Husband  and 
Wife,  143. 

Validity  of  decree  for,  see  Judgmeptt,  18, 
28. 

Conclusiveness  of  decree  of  other  state  as 
to,  see  Judgment,  303-312. 

Enforcement  of  judgment  for,  see  Judg- 
ment, 320. 

New  trial  as  to,  because  of  fraud  in  obtain- 
ing decree,  see  Jui>gment,^378. 

In  suit  to  annul  marriage,  see  Marriage, 
28-30,  44. 

Digest  1-52  L.R.A.(N.S.) 


Time  for  motion  to  reconsider  order  deny- 
ing alimony,  see  Motions  and  Orders, 
2. 

Right  of  stranger  to  sue  for  arrears  of,  see 
Parties,  40. 

Trial  of  collateral  issue  raised  by  guardian's 
motion  to  set  aside  order  for  payment 
of,  see  Trial,  2. 

79.  In  disposing  of  an  application  for 
alimony,  a  court  may  take  into  considera- 
tion the  circumstance  that  the  petitioner  is 
undergoing  penal  servitude.  I^slie  v.  Les- 
lie, 3  B.  R.  C.  542  [1908]  P.  99.  Also  Re- 
ported in  77  L.  J.  Prob.  N.  S.  23,  98  L. 
T.  N.  S.  62,   24  Times  L.  R.  148. 

( Annotated ) 

80.  "Alimony"  is  not  due  and  payable  as 
debt,  damages,  or  penalty;  but  is  an  award 
by  the  court  upon  considerations  of  equity 
and  public  policy,  and  is  founded  upon  the 
obligation,  which  grows  out  of  the  mar- 
riage relation,  that  the  husband  must  sup- 
port his  wife,  which  obligation  continues 
after  legal  separation  without  her  fault. 
Fickel  V.  Granger,  32:  270,  93  N.  E.  527. 
83  Ohio  St.  101. 

81.  Alimony  cannot  be  awarded  as  be- 
tween parties  divorced  from  bed  and  board, 
without  alimony,  as  incident  to  the  pen- 
dency of  an  independent  suit  seeking  only 
to  set  aside  the  decree  of  divorce  for  fraud 
in  its  procurement.  Chapman  v.  Parsons, 
24:  1015,  66  S.  E.  461,  66  W.  Va.  307. 

82.  That  property  came  to  a  husband 
after  the  dissolution  of  the  bonds  of  matri- 
mony between  himself  and  wife  by  a  de- 
cree which  does  not  release  him  from  his 
liability  to  support  her  in  the  state  of  the 
matrimonial  domicil  does  not  relieve  it 
from  liability  to  her  claims  for  alimony. 
Toncray  v.  Toncray,  34:  no6,  131  S.  W. 
977,   123   Tenn.  476.  , 

83.  A  statutory  provision  to  the  effect 
that,  if  the  bonds  of  matrimony  are  dis- 
solved at  the  suit  of  the  husband,  the  de- 
fendant shall  not  be  entitled  to  alimony, 
cannot  be  invoked  in  behalf  of  a  husband 
who  deserts  the  wife  in  the  state  of  matri- 
monial domicil,  and  obtains  a  decree  of 
divorce  by  publication  in  a  foreign  state. 
Toncray  v.  Toncray,  34:  1106,  131  S.  W.  977, 
123  Tenn.  476. 

84.  A  wife  who  has  been  abandoned  and 
denied  support  by  her  husband  may  have  a 
decree  for  alimony  without  a  divorce,  and 
such  relief  may  be  granted  her  in  a  suit 
for  divorce  brought  by  a  husband,  on  a 
prayer  in  her  answer  therefor  as  affirma- 
tive relief.  Huff  v.  Huff,  51:  282,  80  S.  E. 
846,  73  W.  Va.  330. 

85.  A  wife  who  has  obtained  a  decree 
for  the  restitution  of  conjugal  rights  may, 
if  the  husband  disobeys  that  decree,  either 
apply  for  an  alimentary  provision  and  to 
have  the  same  secured  to  her  under  the 
matrimonial  causes  act  1884,  or,  if  she 
elects  to  petition  for  a  judicial  separation, 
she  may  apply  for  alimony,  and,  after  she 
has  obtained  a  decree,  may  ask  for  perma- 
nent alimony  to  be  allotted  to  her;  but  it 
is  not  open  to  her,  after  she  has  elected 
to   proceed   for   a  judicial   separation,   and 


944 


DIVORCE  AND  SEPARATION,  V.  b. 


after  she  has  obtained  a  decree  in  that  suit, 
to  ask  for  an  order  and  for  security  uiulcr 
the  act  of  5884.  Leslie  v.  Leslie,  3  B.  R.  C. 
542  [1908]  P.  99.  Also  Reported  in  77  L. 
J.  Prob.  N.  S.  23,  98  L.  T.  N.  S.  62,  24 
Times  L.  R.  148. 
Independent  suit  for. 
Injunction  to  prevent  alienation  of  property 

by    oflending   spouse,    see   Injunction, 

94. 
Venue  of  action,  see  Venue,  4. 
See  also  supra,  81,  83-85;  infra,  96. 

86.  A  wife  may  bring  a  suit  in  equity 
to  secure  support  and  alimony  without  ref- 
erence to  whether  the  action  is  for  divorce 
or  not.  Biewer  v.  Brewer,  13:  222,  113  N. 
W.   161,  79  Neb.  726. 

87.  A  court  of  equity,  independently  of 
proceedings  for  divorce,  on  the  ground  of 
inadequate  remedy  at  law,  may  decree 
maintenance  to  a  wife  who  has  been  desert- 
ed by  her  husband.  Lang  v.  Lang,  38:  950, 
73  S.  E.  716,  70  W.  Va.  205. 

(Annotated) 

88.  The  statutes  governing  alimony  in 
divorce  cases  do  not  bar  an  equitable  ac- 
tion for  maintenance  and  support  brought 
by  one  spouse  against  the  other.  Hagert 
V.  Hagert,  38:  §66,  133  N.  W.  1035,  22  N. 
D.  290. 

89.  A  separate  and  equitable  action  at 
the  suit  of  the  husband  against  the  wife 
will  lie  to  compel  the  wife  to  support  and 
maintain  the  husband,  as  required  by  stat- 
ute, when  she  has  not  been  deserted  or 
abandoned  by  the  husband,  and  he,  because 
of  age  and  infirmity,  is  unable  to  gain  liis 
own  livelihood.  Hagert  v.  Hagert,  38:  966, 
133  N.  W.   1035,  22  N.  D.  290. 

90.  The  district  courts  of  North  Da- 
kota have  jurisdiction  of  separate  main- 
tenance actions,  in  the  absence  of  a  stat- 
ute devesting  them  thereof.  Hagert  v.  Hag- 
ert, 38:  966,  133  N.  W.  1035,  22  N.  D.  290. 

91.  In  equitable  actions  for  maintenance 
by  one  spouse  against  the  other,  the  prac- 
tice follows,  as  far  as  practicable,  the  prac- 
tice in  alimony  proceedings  in  applications 
for  alimony  pending  suit  for  divorce;  and 
tlie  trial  court  lias  the  power  of  granting, 
on  good  cause  shown,  temporary  mainte- 
nance, counsel  fees,  and  expense  money 
pending  hearing  and  before  judgment  in  tlie 
main  action.  Hagert  v.  Hagert,  38:  966, 
133  N.  W.  1035.  22  N.  D.  290. 

92.  A  wife's  suit  for  alimony  on  pensonal 
service  cannot  be  maintained  against  her 
husband,  who  appears  and  sets  up  a  decree 
for  total  divorce  obtained  in  another  state, 
if  the  court  holds  that  divorce  valid.  Joyner 
V.  Joyner,  18:  647,  62  S.  E.  182,  131  Ga.  217. 

93.  A  woman  not  free  from  fault  con- 
tributing to  a  separation  from  her  husband 
is  not  entitled  to  the  benefit  of  a  statute 
providing  that  it  shall  be  lawful  for  any 
married  woman  to  apply  for  an  order  upon 
her  husband  to  provide  for  her  support, 
where  the  order  is  to  be  such  as  shall  be 
equitable  in  view  of  the  circumstances  of 
both  parties.  Ivan  hoe  v.  Ivanhoe,  49:  86, 
136  Pac.  21,  68  Or.  297.  (Annotated) 
Digest  1-52  L.R.A.(N.S.) 


Appropriation  of,  for  •wrife's  debts. 

!)4.  Alimony  cannot,  eitlier  before  or 
after  payment  thereof,  be  subjected  to  the 
payment  of  debts  of  the  wife  which  existed 
prior  to  the  allowance  thereof.  Fickel  v. 
Granger,  32:  270,  93  N.  E.  527,  83  Ohio  St. 
101.  (Annotated) 

95.  An  allowance  for  support,  adjudged 
in  a  divorce  action,  does  not  constitute  in 
debtedness  to  the  party  in  whose  favor  the 
allowance  is  made,  which  can  be  reached  by 
creditors  of  the  latter.  Brenger  v.  Brenger, 
26:  387,  125  N.  W.  109,  142  Wis.  26. 

h.  Temporary  alimony;  suit  money. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of  appeal  on  jurisdiction  to  award 
suit  money  and  maintenance,  see  Ap- 
peal AND  Error,  104,  ]05. 

Allowance  of  temporary  alimony  on  appeal, 
see  Appeal  and  Error,  1581-1583. 

Service  of  application  for  temporary  ali- 
mony, see  Writ  and  Process,  20. 

96.  In  no  suit  but  one  seeking  a  divorce 
of  some  character  is  there  jurisdiction  to 
award  alimony  pendente  lite.  Chapman  v. 
Parsons,  24:  1015,  66  S.  E.  461,  06  W.  Va. 
307. 

97.  An  application  for  temporary  ali- 
mony must  be  based  on  a  pending  suit  for 
divorce  or  for  permanent  alimony.  Stall- 
ings  V.  Stallings,  9:  593,  56  S.  E.  469,  127 
Ga.  464. 

98.  The  final  adjournment  of  the  term 
of  court  at  which  a  divorce  w,as  granted 
docs  not,  if  an  appeal  has  been  taken,  de- 
prive the  court  of  power  to  award  alimony 
in  case  conditions  have  arisen  since  the 
decree  which  require  it,  under  a  statute 
empowering  the  judge,  either  in  term  time 
or  vacation,  to  allow  the  wife  a  sufficient 
income  for  her  maintenance  during  the 
pendency  of  the  suit,  "until  a  final  decree 
shall  have  been  made  in  the  cause."  Ex 
parte  LohmuUer,  29:  303,  129  S.  W.  834, 
103  Tex.  474. 

99.  Temporary  alimony  may  be  granted 
defendant  in  a  suit  to  annul  a  marriage  on 
the  ground  that  it  was  void  because  defend- 
ant was  at  the  time  married  to  another, 
which  is  denied,  where  the  statute  provides 
that  in  such  actions  all  provisions  of  the 
law  in  relation  to  the  granting  of  divorces 
shall  be  applicable.  Ricard  v.  Ricard,  a6: 
500,  121  N.  W.  525,  143  Iowa,  182. 

(Annotated) 
100.  An  order  for  suit  money  and  alimony 
pendente  lite  will  not  be  granted  in  an  ac- 
tion for  separate  maintenance  under  the 
general  equitable  powers  of  the  court,  where 
the  marriage  is  denied  and  the  husband  de- 
nies pecuniary  ability  to  pay.  State  ex  rel. 
Lloyd  V.  Superior  Court,  25:  387,  104  Pac 
771,  55  Wash.   347.  i^_^( Annotated) 

Suit  money.  ,  ,,<    ,1 

Allowance  to  husband,  see  infra,  105,  ]06. 
EfTect  of  appeal  on   jurisdiction  to  award, 
see  Appeal  and  Error,  104. 


DIVORCE  AND   SEPARATION,   V.  c. 


945 


Review  on  appeal  of  allowance  for,  see  Ap- 
peal AND  Error,  987. 
Jurisdiction   to   award,   on   appeal,   see  Ap- 
peal AND  Error,  15S2,  1583. 
Contempt  in   failing  to  obev   order  to  pay, 

see  CoNTEMi-r,  08,  ]05,"'l]0. 
Liability    for    wife's    attorneys'    fees    in    di- 
vorce proceeding   against   husband,   see 
Husband  and  Wife,  3,  4. 
Validity  of  decree  for,  see  Judgment,  18,  28. 
In  action  to  annul  marriage,  see  Marriage, 

28-30,  44. 
See  also  supra,  91,  100. 

100a.  The  fact  that  after  the  employment 
of  counsel  and  the  commencement  by  them 
of  a  suit  for  divorce  on  behalf  of  a  wife, 
and  prior  to  the  entry  of  an  allowance  for 
counsel  fees,  the  parties  to  the  suit  became 
reconciled,  does  not  oust  the  court  of  its 
autlioritv  to  make  such  an  allowance.  Kid- 
dle V.  Kiddle,  36:  looi,  133  N.  W.  181,  90 
Neb.  248. 

101.  Suit  money  and  alimony  may  be 
awarded  against  defendant  in  a  divorce  pro- 
ceeding against  a  spendthrift.  Sturgis  v. 
Sturgi's,  15:  1034,  93  Pac.  696,  51  Or.  10. 

102.  In  a  suit  by  a  wife  for  separate 
maintenance,  or  for  alimony  alone,  the 
court  may  at  any  time  during  the  pendency 
of  the  suit  make  an  allowance  to  the  wife 
of  a  reasonable  sum  as  suit  money,  includ- 
ing attorneys'  fees,  to  be  paid  by  the  hus- 
band as  the  court  may  direct.  Kiddle  v. 
Kiddle,  36:  1001,  133  N.  W.  181,  90  Neb. 
248.  ( Annotated ) 

103.  The  term  "during  its  pendency,"  in 
a  statute  empowering  a  court  to  require  a 
husband  to  pay  suit  money  in  a  divorce 
proceeding,  means  any  time  from  the  com- 
mencement of  the  suit  until  and  including 
the  final  order  of  dismi.ssal  of  the  same. 
Kiddle  v.  Kiddle,  36:  looi,  133  N.  W.  181, 
90  Neb.  248. 

104.  Where  a  wife  brought  suit  against 
her  husband,  alleging  a  permanent  separa- 
tion on  account  of  misconduct  on  his  part, 
and  praying  for  permanent  alimony  and  for 
an  allowance  as  temporary  alimony  and 
counsel  fees  and  the  appointment  of  a  re- 
ceiver, and  pending  the  case,  but  before  the 
allowance  of  temporary  alimony  or  counsel 
fees,  the  parties  adjusted  their  differencea, 
resumed  cohabitation,  and  desired  that  the 
case  be  dismissed,  it  is  proper  to  enter  an 
order  of  dismissal  and  to  refuse  to  permit 
the  attorneys  for  the  wife  to  intervene  and 
become  parties  to  the  case,  or  to  render  a 
judgment  in  that  proceeding  for  attorneys' 
fees,  and  the  fact  that  a  temporary  receiver 
was  appointed  does  not  alter  the  ease. 
Keefer  v.  Keefer,  46:  527,  78  S.  E.  462,  140 
Ga.  18. 

To   husband. 

105.  Temporary  alimony  and  suit  money 
caifnot  be  allowed  to  the  husband  in  the  ab- 
sence of  statutory  provision  therefor.  State 
ex  rel.  ffargert  v.  Templeton,  25:  234,  123 
N.  W.  283,  18  N.  D.  525.  (Annotated) 

106.  Alimony  and  suit  money  pendente 
lite  cannot  be  allowed  to  the  husband  by 
virtue  of  a  statute  authorizing  the  courts 
to  require  the  husband  to  pay  as  alimony 
Digest   1-52  L.R.A.(N.S.) 


any  money  necessary  to  enable  the  wife  to 
support  herself  or  to  prosecute  or  defend  the 
action,  where  no  similar  provision  is  made 
for  him,  as  such  statute  is  conclusive  and 
embraces  the  entire  subject  matter  of  such 
allowances.  State  ex  rel.  Hargert  v.  Temple- 
ton,  25:  234,   123  N.  W.  283,   18  N.  D.  525. 

c.  Permanent  aUoivance. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Alimony  as  lien  on  claim  for  tort  which 
has  been  assigned,  see  Assignment,  21. 

Presumption  as  to  allowance  for  tort,  see 
Evidence,  503. 

Appointment  of  trustee  for  alimony,  see 
Husband  and  Wife,  115. 

Decree  for  alimony  as  lien  on  property  of 
husband,  see  Judgment,  2G4. 

Right  to  increase  wife's  share  of  communi- 
ty property  upon  husband's  appeal,  see 
Appeal  and  Error,  1584. 

Right  of  trial  court  to  make  new  division 
of  community  property  upon  remand- 
ing of  case,  see  Appeal  and  Error, 
1648. 

107.  Testimony  of  libellee  in  a  divorce  suit 
that  he  wanted  his  wife  to  have  a  divorce 
will  not  be  construed  as  asking  for  a  divorce 
at  all  events,  where  his  counsel  states  that 
he  was  unwilling  that  the  alimony  should 
be  more  than  one  third  of  what  he  was 
worth.  Mathewson  v.  Mathewson.  18:  300, 
69  Atl.   646,   81   Vt.   173. 

108.  A  court  is  without  authority,  under 
a  statute  providing  that,  when  a  decree  of 
divorce  is  granted,  the  court  shall  make 
such  order  touching  the  alimony  of  the  wife 
as  shall  be  reasonable,  to  decree  absolutely 
a  certain  and  specific  sum  of  money,  or  a 
certain  specific  portion  of  the  property,  as 
alimony,  but  may  decree  alimony  in  a  con- 
tinuous allotment  of  sums,  payable  at  regu- 
lar intervals.  Ecker  v.  Ecke'r,  20:  421,  98 
Pac.  918,  22  Okla.  873. 

109.  Alimony  may  be  decreed  to  a  wife 
against  whom  a  divorce  is  granted  under  a 
statute  providing  that,  where  a  divorce  is 
granted,  the  court  shall  make  such  order 
touching  the  alimony  of  the  wife  as,  under 
the  circumstances  and  nature  of  the  case, 
shall  be  reasonable.  Ecker  v.  Ecker,  20: 
421,  98  Pac.  918,  22  Okla.  873.     (Annotated) 

110.  Alimony  may  be  decreed  to  a  Mife 
against  whom  a  divorce  is  granted  for  wil- 
ful and  continued  desertion  under  a  stat- 
ute providing  that  in  all  suits  for  divorce 
the  jury  may  provide  permanent  alimony 
for  the  wife,  when  neitlver  the  husband  nor 
the  wife  have  any  property,  and  the  evi- 
dence tends  to  show  bad  conduct  upon  tlie 
part  of  the  husband,  who  is  able-bodied  and 
earning  about  $18  per  week,  that  the  wife 
had  always  helped  support  the  family  by 
sewing,  that  her  eyesight  is  failing,  and 
that  her  health  has  become  so  poor  that 
she  is  not  able  to  support  herself  with- 
out assistance.  Davis  v.  Davis,  30:  73,  68 
S.  E.  594,  134  Ga.  804,  (Annotated) 

60 


'Mii 


DIVORCE  AND  SEPARATION,  V.  d. 


111.  The  jury  is  not  prevented  from 
granting  alimony  to  a  wife  against  whom 
a  divorce  is  granted  under  a  statute  pro- 
viding that  in  all  suits  for  divorce  tlie  jury 
may  provide  permanent  alimony  for  the 
wife,  by  a  statutory  provision  that,  if  the 
jury  find  in  favor  of  the  wife,  they  sliall 
also,  in  providing  permanent  alimony  for 
her,  specify  what  amount  the  minor  chil- 
dren should  be  entitled  to  for  their  support, 
and  that  they  may  do  that  if,  from  any 
legal  cause,  the  wife  may  not  be  entitled  to 
permanent  alimony,  and  the  children  are 
not  in  the  same  category,  since  such  pro- 
vision does  not  mean  that  in  no  event  can 
alimony  be  awarded  unless  the  wife  shall 
obtain  a  divorce.  Davis  v.  Davis,  30:  73, 
68  S.  E.  594,  134  Ga.  804. 

112.  Expenses  incurred  by  libellant  in  a 
divorce  proceeding,  for  keeping  libellee'a 
horse  and  boarding  his  child,  because  libellee 
did  not  perform  his  duty  in  respect  thereto, 
may  be  considered  in  fixing  the  alimony. 
Mathewson  v.  Mathewson,  18:  300,  69  Atl. 
646,  81  Vt.  173. 

113.  Petitioner  in  a  divorce  proceeding 
cannot  be  allowed  to  show  the  expense  in- 
curred by  her  in  a  proceeding  for  the  ap- 
pointment of  a  guardian  for  her  husband, 
nor  expenses  incurred  in  searching  for  him. 
Mathewson  v.  Mathewson,  18:  300,  69  Atl. 
646,   81    Vt.    173. 

1 14.  Probable  accretions  of  wealth  to  the 
husband  from  any  source  may  be  consid- 
ered in  fixing  the  amount  to  be  allowed  the 
wife  on  granting  her  a  divorce.  Muir  v. 
Muir,  4:  909,  92  S.  W.  314,  133  Ky.  125. 

(Annotated) 

115.  When  a  wife  is  granted  a  divorce  for 
the  fault  of  her  husband  she  is  entitled  as 
alimony  to  enough  of  his  estate,  including 
earnings,  to  make  an  equivalent  of  the  sup- 
port to  which  she  was  entitled  as  his  wife; 
and  this  should  equal  at  least  her  dower 
interest  in  the  estate.  Muir  v.  Muir,  4:  909, 
92  S.  W.  314,  133  Ky.  125, 

116.  A  wife,  upon  obtaining  a  divorce,  may 
be  allowed  as  alimony  a  share  in  a  posses- 
sion of  real  estate  held  by  the  husband  with 
the  consent  of  the  owner.  Muir  v.  Muir, 
4:  909,  92  S.  W.  314,  133  Ky.  125. 

117.  A  decree  in  chancery  granting  a  di- 
vorce may  establish  a  lien  in  favor  of  the 
wife  upon  a  fund  due  the  husband  1  a 
third  person  for  an  injury  negligently  in- 
flicted upon  him.  Kithcart  v.  Kithcart, 
30:  1062,   124  N.   W.  305,   145   Iowa,   549. 

(Annotated) 

118.  A  man's  entire  estate  will  not  be 
permitted  to  be  absorbed  as  alimony  for  his 
first  wife  after  he  has  children  by  a  second 
marriage,  although  he  deserted  the  first 
wife,  and  left  her  penniless,  with  several 
infant  children  to  care  for,  and  secured  a 
divorce  against  her  by  publication,  in  an- 
other state,  without  actual  notice  to  her 
of  the  proceeding.  Toncrav  v.  Toncray, 
34:  1106,  131  S.  W.  977,  123*Tenn.  476. 
Instances  of  amount. 

119.  Thirty  dollars  per  month  is  an  un- 
reasonable amount  to  be  allowed  a  wife  as 
alimony  in  a  suit  for  separate  maintenance 
Digest   1-52  L.R,A.(N.S.) 


where  her  husband  is  unable  to  work  for 
himself,  and  has  properly  only  to  the  value 
of  $1,200.  Fa  hey  v.  Fahey,  18:  1147,  96  Pac 
251,  43  Colo.  354. 

120.  $100  per  month  may  be  awarded  to 
a  wife  as  support,  upon  granting  her  a 
separation  from  her  husband,  with  the  cus- 
tody and  care  of  lier  infant  child,  where  he 
is  worth  from  $20,000  to  $40,000,  and  has 
an  income  from  his  business  of  from  $2,000 
to  $3,000.  McClintock  v.  McClintock,  39: 
1 127,  144  S.  W.  68,  147  Ky.  409. 

121.  Five  thousand  dollars  sliould  be  al- 
lowed as  alimony  to  a  woman  without  prop- 
erty, who  has  been  contaminated  with 
syphilis  by  her  husband,  and  who  is  given 
the  custody  of  her  children,  one  of  whom  is 
also  affected  with  the  disease,  where  the  hus- 
band is  worth  at  least  $15,000.  Muir  v. 
Muir,  4:  909,  92  S.  W.  314,  133  Ky.  125. 
To  husband. 

122.  Permanent  alimony  cannot,  in  the 
absence  of  express  statute,  be  allowed  a 
husband  out  of  the  property  or  earnings 
of  the  wife.  Brenger  v.  Brenger,  26:  387, 
125  N.  W.  109,  142  Wis.  26. 

123.  The  granting,  in  an  action  for  di- 
vorce and  alimony,  of  an  allowance  of  $25 
per  month,  payable  at  specified  intervals 
during  life,  or  a  specified  gross  sum,  at  the 
option  of  the  party  required  to  pay  the  al- 
lowance, is  a  decree  for  "alimony,"  whether 
so  stated  or  not,  and  therefore  within  the 
rule  denying  a  husband  permanent  alimony 
out  of  the  separate  estate  of  the  wife,  where 
not  expressely  made  allowable  by  statute. 
Brenger  v.  Brenger,  26:  387,  125  N.  W.  109, 
142  Wis.  26. 

d.  Subsequent  change. 

(See   also   same   heading    in   Digest   L.R.A. 
1-10.) 

124.  A  statute  permitting  a  court  award- 
ing a  divorce  to  make  such  subsequent 
changes  in  relation  to  the  property  and 
maintenance  of  the  parties  as  the  circum- 
stances may  warrant  does  not  enable  the 
court,  without  a  new  trial,  to  make  an 
award  of  alimony  when  none  was  awarded 
in  the  original  action  because  of  the  fraud 
and  false  swearing  of  defendant.  Graves  v. 
Graves,  10:  216,  109  N.  W.  707,  132  Iowa, 
199. 

125.  A  substitution  of  a  permanent  divi- 
sion of  the  proporty  for  a  periodical  pay- 
ment of  alimony  in  a  divorce  decree  does 
not  cancel  the  obligation  to  make  overdue 
payments  if  tke  record  expressly  indicates 
an  intention  that  they  shall  be  paid. 
Weber  v.  Weber,  45:  875,  140  N.  W.  1052, 
153  Wis.  132. 

EiFect  of  ixrife's  adultery. 

126.  A  decree  of  divorce  may  be  modi- 
fied upon  evidence  that  the  wife,  to  whom 
the  divorce  was  awarded,  evinced  a  per- 
manent disposition  to  lapse  from  virtue, 
so  as  to  substitute  a  permanent  division 
of  j)roperty  between  the  parties  for  a 
periodical   payment  of  alimony.     Weber  y, 

a 


DIVORCE  AND  SEPARATION,  VI. 


947 


Weber,   45:  875,   140  N.   W.   1052,   153   Wis. 
132.  (Annotated) 

EfPect  of  hnsband's  death. 

127.  The  obligation  to  comply  with  a 
provision  of  a  decree  of  divorce  imposing 
upon  the  husband  the  duty  of  paying  to  the 
wife  a  certain  sum  annually  as  alimony  "so 
long  as  she  may  live"  ceases  with  his  death, 
although,  in  compliance  with  the  decree, 
such  payment  has  been  secured  by  a  mort- 
gage of  real  estate,  where  the  statute  em- 
powers the  court,  upon  granting  a  divorce, 
merely  to  require  defendant  to  provide  for 
the  support  of  plaintiff.  Wilson  v.  Hinman, 
2:  232,  75  N.  E.  236,  182  N.  Y.  408. 

( Annotated ) 

VI.  Other  pi'operty  rights. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  80. 

Effect  of  divorce  on  dower  right,  see  Dower, 
23. 

Effect  of  husband's  separation  from  wife 
because  of  her  adultery  on  gift  by  him 
to  her,  see  Gift,  4. 

Effect  of  divorce  on  interest  in  proceeds  of 
insurance  policy,  see  Insurance,  72. 
828-831;   Parties,  45. 

Estoppel  of  divorced  husband  to  assert  title 
to  proceeds  of  insurance  by  leaving 
policy  in  possession  of  wife,  see  Estop-^ 
pel,  91. 

What  is  community  property  to  share  in 
which  divorced  wife  is  entitled,  see 
Husband  and  Wife,  78,  79. 

Effect  of  void  decree  on  property  rights, 
see  Judgment,  73. 

Effect  of  divorce  decree  to  bar  subsequent 
action  as  to  property  rights,  see  Judg- 
ment, 180. 

Recognition  of  deed  to  land  within  state 
made  by  commissioner  under  decree  of 
court  of  other  state,  in  action  for  di- 
vorce, see  Judgment,  291. 

Effect  of  annulment  of  marriage  on  prop- 
erty rights,  see  Marriage,  31. 

Appointment  of  receiver  to  preserve  prop- 
erty in  action  for,  see  Receivers,  11. 

Repeal  of  statute  granting  dower  to  di- 
vorced wife,  see  Statutes,  365. 


128.  Only  such  judicial  authority  to  make 
a  division  of  property  between  the  parties 
to  a  divorce  action   exists   as   is   expressly^ 
granted    by    statute.     Brenger    v.    Brenger, 
26:  387,  125  N.  W.  109,  142  Wis.  26. 

129.  In  settling  the  property  rights  of 
parties  upon  a  judicial  dissolution  of  their 
marriage  contract,  it  is  proper,  if  not  the 
duty  of  the  court,  so  to  provide  as  to  pre- 
serve to  them,  subject  to  their  individual 
rights  after  the  separation  of  contracting 
to  the  contrary,  their  statutory  exemptions 
from  claims  of  creditors,  while  at  the  same 
time  the  indebtedness  of  each,  in  determin- 
ing the  property  status  to  be  dealt  with  in 
settling  property  rights,  should  be  con- 
Dieest  1-52  Ii.R.A.(N.S.) 


sidered.     Brenger  v.  Brenger,  26:  387,  12o  N. 
W.  109,  142  Wis.  26. 

130.  The  property  of  the  husband,  and 
that  of  the  wife  derived  from  him,  may  be 
considered  together  in  making  a  permanent 
adjustment  of  property  rights,  upon  a  ju- 
dicial termination  of  their  marital  rela- 
tions; but  no  part  of  the  separate  prop- 
erty of  the  wife  not  so  derived  can  prop- 
erly be  devested  and  transferred  to  the  hus- 
band, or  burdened  by  his  debts.  Brenger  v. 
Brenger,  26:  387,  125  N.  W.  109,  142  Wis. 
26. 

131.  In  adjusting  property  rights  of  the 
parties  in  a  divorce  action,  a  conveyance 
during  coverture  by  the  husband  to  the  wife 
to  compensate  her  for  care  of  him  should 
be  set  aside,  where  she  has  without  reason- 
able excuse  defaulted  in  performance,  and 
the  property  should  be  adjusted  as  if  no 
such  conveyance  had  been  made,  unless  the 
wife  has  been  in  possession  thereunder,  in 
which  case  allowance  to  the  husband  of  a 
reasonable  rental  value  should  be  made. 
Brenger  v.  Brenger,  26:  387,  125  N.  W.  109, 
142  Wis.  26. 

132.  An  adjustment  of  property  rights, 
made  upon  the  granting  of  a  divorce,  which 
is  based  in  part  upon  the  suggestion  of  the 
attorney  for  a  judgment  creditor  of  one  of 
the  parties  that  the  judgment  could  be  set- 
tled for  a  certain  sum,  whereas  the  judg- 
ment was  entered  for  a  much  larger  sum, 
there  being  no  binding  obligation  to  settle 
the  claim  for  less  than  the  amount  due,  is 
erroneous,  as  findings  of  fact  must  be  con- 
strued from  a  strictly  legal  viewpoint, 
whicli  would  require  the  adjustment  to  be 
based  upon  the  sum  for  which  the  judg- 
ment was  entered.  Brenger  v.  Brenger,  26: 
387,  125  N.  W.  109,  142  Wis.  26. 

133.  A  statute  providing  that,  "in  every 
final  judgment  for  divorce  from  the  bond 
of  matrimony,  an  order  shall  be  made  that 
each  party  be  restored  to  all  property  not 
disposed  of  at  the  commencement  of  the  ac- 
tion, which  either  party  obtained  from  and 
through  the  other  during  the  marriage  and 
in  consideration  or  by  reason  thereof,"  does 
not  include  a  gift  of  property  made  during 
the  existence  of  the  marriage,  by  husband 
to  his  wife.  Thomas  v.  Thomas,  35:  124, 
109  Pac.  825,  27  Okla   784. 

134.  Property  which  is  not  brought  be- 
fore the  court  by  the  pleadings  in  a  pro- 
ceeding for  divorce  is  not  affected  by  the 
decree.  Ambrose  v.  Moore,  11:  103,  90  Pac. 
588,  46  Wash.  463. 

135.  One  who  institutes  a  divorce  suit 
without  bringing  the  property  rights  of  the 
parties  before  the  court  for  adjudication 
waives  any  right  in  or  to  the  property  of 
the  other  spouse,  and  the  power  to  adju- 
dicate the  right  to  the  property  cannot  or- 
dinarily be  exercised  by  another  court  at 
another  time  or  in  an  independent  action. 
Ambrose  v.  Moore,  11:103,  90  Pac.  588,  46 
Wash.  463. 

136.  Community  property  which  is  not 
brought  before  the  court  in  a  divorce  pro- 
ceeding is,  after  the  decree,  held  by  the  par- 


948 


DIVORCE  AND  SEPARATION,  VII. 


ties    as    tenants    in    common.      Ambrose    v. 
Moore,  n:  103,  90  Pac.  588,  46  Wash.  463. 

(Annotated) 

137.  The  divorce  of  the  parties  will  not 
sever  an  estate  by  entireties.  Alles  v. 
Lyon,   10:  463,  GO  Atl.  81,  216  Pa.  604. 

(Annotated) 

138.  Before  full  legal  interest  on  the  capi- 
tal invested  in  the  business  of  a  man  against 
whom  a  divorce  is  sought  shall  be  allowed 
out  of  the  profits  of  the  business  as  against 
the  claims  of  the  community,  the  wife  is 
entitled  to  an  opportunity  to  show  that  it 
earned  a  smaller  proportion  of  such  profits. 
Pereira  v.  Pereira,  23:  880,  103  Pac.  488,  156 
Cal.  1. 

139.  In  dividing  the  property  in  a  divorce 
proceeding,  the  capital  which  the  husband 
has  invested  in  business  at  the  time  of  the 
marriage  is  to  be  regarded  as  separate  es- 
tate, and  also  the  profits  which  have  been 
derived  from  the  business  since  the  mar- 
riage which  are  justly  due  to  the  capital 
invested,  which,  in  case  the  business  is  prof- 
itable, are  at  least  the  usual  interest  on 
a  long-term  investment  well  secured.  Perei- 
ra V.  Pereira,  23:  880,  103  Pac.  488,  156  Cal. 
1. 

140.  In  the  absence  of  evidence  on  the 
part  of  the  husband  against  whom  a  divorce 
is  granted  that  the  capital  invested  in  his 
business  was  entitled  to  more  than  legal 
interest  out  of  the  profits  of  the  business, 
that  is  all  that  he  can  claim  in  fixing  the 
amount  of  community  property  to  be  di- 
vided between  himself  and  wife.  Pereira  v. 
Pereira,  23:  880,  103  Pac.  488,  156  CaJ.  1. 

141.  Property  transferred  by  a  man  to 
his  wife  to  defraud  his  creditors  is  not 
within  the  operation  of  a  statute  providing 
tliat  in  case  of  divorce  any  property  which 
either  party  may  have  obtained  from  the 
other  during  marriage,  in  consideration  or 
by  reason  thereof,  shall  be  restored  to  the 
party  from  whom  it  was  obtained.  Coleman 
V.  Coleman,  39:  193,  144  S.  W.  1,  147  Ky. 
38^.  (Annotated) 

142.  An  inquiry  with  respect  to  property 
rights  and  the  custody  of  children  prior  to 
tlie  entry  of  the  final  decree  in  a  divorce 
proceeding  is  not  prevented  by  statutes 
which  ^provide  that,  in  actions  for  divorce, 
the  court  must  file  its  decision  and  eoo- 
elusions  of  law  as  in  other  cases,  and  if  it 
determines  that  a  divorce  ought  to  be  grant- 
ed, an  interlocutory  judgment  must  be  en- 
tered, declaring  that  the  party  in  whose 
favor  the  court  decides  is  entitled  to  a' 
divorce,  and  that  one  year  after  the  entry 
of  such  interlocutory  judgment  the  court 
may  enter  a  final  judgruent  granting  a  di- 
vorce and  such  other  and  further  relief  as 
may  be  necessary  to  a  complete  disposi- 
tion of  the  action;  although  other  sections 
speak  of  the  disposition  of  Wie  community 
property  in  case  of  a  dissolution  of  the 
marriage,  and  declare  that  the  court,  in 
ordering  a  decree  of  divorce,  must  make 
such  orders  for  the  disposition  of  community 
property  as  provided  by  law,  and  that  mar- 
riage is  dissolved  only  by  the  judgment  of 
a  court  of  competent  jurisdiction  declaring 
Digest  1-52  L.R.A.(N.S.) 


a  divorce.     Pereira  v.  Pereira.  23:  880,  lOS 
Pac.  488,   156  Cal.  1. 

143.  Payments  in  money,  required  by  the 
judgment  in  a  divorce  action  to  be  made  by 
one  party  to  the  other  as  the  portion  of 
that  other,  upon  a  division  of  the  property 
of  the  parties,  may  be  reached  by  the  cred- 
itors of  that  other.  Brenger  v.  Brenger, 
26:  387,  125  N.  W.  109,  142  Wis.  26. 

VII.  Custody  and  support  of  children. 

(See  also  same  heading  in  Digest  L  R.A. 
1-10.) 

Abduction  or  kidnapping  of  child  by  one 
parent,  see  Abduction  and  Kidnap- 
ping, 2,  3. 

Review  on  appeal  of  discretion  as  to,  8fc,i 
Appblal  and  Error,  569. 

Right  of  appellate  court  to  provide  for  tem- 
porary custody  of  children,  see  Appeal 
and  Error,  1581. 

Excluding  father  from  burial  service  of 
child  whose  custody  was  awarded  to 
mother,  see  Case,  12. 

Validity  of  contract  for  support  of  child 
pending  action,  see  Contracts,  71,  487. 

Retaining  jurisdiction  to  award  custody  of 
children  after  prayer  for  divorce  has 
been  withdrawn,  see  Equity,  127,  128. 

Conclusiveness  of  decree  as  to,  see  Evidence, 
504. 

Presumption  of  father's  unfitness  for  cus- 
tody of  child,  see  Evidence,  123. 

Agreement  between  husband  and  wife,  in 
view  of  separation,  as  to  custody  of 
children,  see  Infants,  23. 

Right  of  mother's  parents  to  custody  of 
child  after  divorce  and  mother's  in- 
sanity, see  Infants,  34. 

Father's  right  to  deed  children  to  his  par- 
ents upon  separation  from  his  wife,  see 
Infants,  38. 

Effect  of  death  of  parent  to  whom  custody 
of  child  was  awarded  by  divorce  decree, 
see  Infants,  40. 

Effect  of  divorce  against  mother  of  child 
on  right  to  its  custody  after  father's 
death,  see  Infants,  52. 

Binding  effect  of  decree  of  other  state  as  to, 
see  Judgment,  296. 

CroPS  bill,  seeking  custody  of  children,  see- 
Pleading,  534. 

See  also  supra,  142. 

144.  A  husband  who  has  obtained  a  judg- 
ment of  final  divorce,  awarding  him  the  un- 
conditional custody  of  the  minor  children  of 
the  marriage,  is  without  legal  capacity  ta 
abdicate  his  trust  by  a  subsequent  agree- 
ment with  his  divorced  wife;  and  such  an 
agreement,  purporting  to  vest  in  her  the 
temporary  or  conditional  custody  of  the 
children,  cannot  operate  as  a  bar  to  his  re- 
covering possession  of  them.  Farr  v.  Emuy,. 
15:  744,  46  So.  112,  121  La.  91.  (Annotated) 

145.  A  father  is  not  deprived  of  the  nat- 
ural right  to  the  custody  of  his  minor  chil- 
dren against  any  person  except  the  mother 
by  a  decree  in  a  divorce  proceeding,  award- 
ing her  temporary  custotly  of  them,  in  the- 


DIVORCE    AND    SEPARATION,    VIII.    a. 


949 


absence  of  a  finding  that  the  father  is  un- 
fit; and,  upon  her  death,  such  right  ceases 
to  be  affected  by  the  award.  Ex  parte 
Clarke,  20:  171,  118  N.  W.  472,  82  Neb.  625. 

(Annotated) 

146.  Upon  the  death  of  the  mother,  to 
whom  a  child  was  awarded  in  divorce  pro- 
ceedings, the  father,  if  he  is  of  good  charac- 
ter, and  able  to  provide  for  it,  ha&  a  right 
to  it  prior  to  that  of  the  wife's  parents,  to 
whom  she  had  given  it.  Ex  parte  Barnes. 
25:  172,  104  Pac.  296,  54  Or.  548. 

147.  Tho  courts  of  the  state  to  wliich  a 
child  was  brought  by  its  mother  after  the 
custody  of  it  was  awarded  to  her  in  divorce 
proceedings  will  not,  upon  her  death,  refuse 
to  permit  the  father  to  take  it  to  his  home 
in  another  state,  and  into  the  jurisdiction 
of  the  court  which  granted  the  divorce, 
bierely  because  it  is  thereby  being  taken 
beyond  their  jurisdiction.  Ex  parte  Barnes, 
25:  172,  104  Pac.  296,  54  Or.  543. 

148.  The  courts  of  a  state  of  which  a 
mother  who  has  been  granted  a  divorce  and 
awarded  the  custody  of  minor  children  by 
the  courts  of  a  sister  state  becomes  a  resi- 
dent, dying  there,  and  leaving  such  children 
in  the  hands  of  relatives,  who  are  appointed 
guardians,  are  not  deprived  of  jurisdiction 
to  determine  the  merits  of  a  controversy  be- 
tween the  divorced  father  and  such  guard- 
ians for  the  custody  of  the  children  by  the 
fact  that  the  court  rendering  the  divorce 
retained  jurisdiction  for  the  purpose  of  mak- 
ing further  orders,  that  court  having  refused 
to  determine  the  merits  of  the  material  ques- 
tion in  issue.  Ex  parte  Clarke,  20:  171,  118 
N.  W.  472,  82  Neb.  625. 

149.  A  divorced  mother  does  not  show 
her  unfitness,  becauise  of  breach  of  good 
morals  or  violation  of  public  policy,  to  have 
the  custody  of  her  child,  by  going  into  an- 
other state  to  avoid  the  operation  of  a 
statute  forbidding  her  remarriage,  contract- 
ing such  marriage,  and  immediately  return- 
ing to  the  state  of  her  domicil.  Dudley  v. 
Dudley,  32:  11 70,  130  N.  W.  785,  151  Iowa, 
142. 

150.  A  divorce  decree  forbidding  the  fa- 
ther to  visit  his  child,  which  is  awarded  to 
the  custody  of  its  mother,  at  her  home,  is 
not  modified  by  the  fact  that  the  child 
becomes  ill.  Rader  v.  Davis,  38:  131,  134 
N.  W.  849,  154  Iowa,  306. 

Support  of  child  in  custody  of  moth- 
er; after  father's   death. 
See  also  Ixiwxts,  18. 

151.  The  legal  obligation  of  a  father  for  I 
the  support  of  his  minor  children  is  not 
affected  by  a  decree  of  divorce  for  his  con- 
duct, which  gives  the  custody  of  the  chil- 
dren to  the  wife,  but  is  silent  as  to  their 
support,  and,  if  he  refuses  or  neglects  to 
support  them,  she  may  recover  from  him  in 
an  original  action  a  reasonable  sum  for  nec- 
essaries furnished  by  her  for  their  support 
after  such  decree,  as  the  law  implies  a  prom- 
ise on  his  part  to  pay  for  such  necessaries. 
Spencer  v.  Spencer,  2:  851,  105  N.  W.  483, 
97  Minn.  56.  (Annotated) 

152.  A  father  is  not  absolved  from  his 
duty  to  support  his- minor  child  by  the  fact 
Digest   1-52  I,.R.A.(N.S.) 


I  that  his  wife  obtains  a  divorce  from  him 
■  and  is  given  custody  of  the  child,  without 
anything  in  the  decree  as  to  who  shall  bear 
the  burden  of  such  support,  where  the  serv- 
ice on  defendant  was  by  publication,  so 
that  the  court  acquired  no  jurisdiction  to 
provide  for  the  support  of  the  child;  and, 
in  case  the  mother  furnishes  the  support, 
she  may  recover  over  against  the  father 
therefor.  Alvev  v.  Hartwig,  11:  678,  67  Atl. 
132,  106  Md.  254. 

153.  A  father  is  not  relieved  from  his 
duty  to  support  his  children  by  a  divorce  de- 
cree awarding  their  custody  to  the  mother, 
and  directing  the  payment  to  her  of  a  cer- 
tain gross  amount  in  instalments  as 
alimony  for  her  support  and  that  of  the 
children,  which  will  be  exhausted  before 
they  reach  maturity.  Graham  Vi  Graham, 
8:  1270,  88  Pac.  852,  38  Colo.  453. 

154.  The    child's    ability    to    earn    money 
i  should  be  taken  into  account  in  making  a 

decree  against  its  father  for  support,  in 
favor  of  the  mother,  to  whom  its  custody 
has  been  awarded  in  a  divorce  proceeding. 
Graham  v.  Graham,  8:  1270,  88  Pac.  852,  38 
Colo.  453. 

155.  An  obligation  assumed  by  a  father 
in  connection  with  a  divorce,  to  contribute 
a  certain  amount  per  month  towards  the 
support  of  his  child,  the  payment  to  con- 
tinue during  minority  of  the  child,  but  to 
cease  upon  her  earlier  death,  survives  his 
death  during  minority  of  the  child.  Stone 
V.  Bayley,  48:429,  134  Pac.  820,  75  Wash. 
184.  (Annotated) 

156.  The  court  may,  in  granting  a  di- 
vorce, provide  for  the  support  of  minor 
children  out  of  the  father's  estate  after  his 
death,  under  a  statute  empowering  it  to 
make  such  disposition  of  the  property  of 
the  parties  as  shall  appear  just,  and  pro- 
vide for  the  support  of  minor  children. 
Stone  v.  Bayley,  48:  429,  134  Pac.  820,  75 
Wash.  184. 

157.  Authority  to  enter  a  decree  providing 
for  the  support  of  minor  children  after  the 
father's  death  upon  granting  a  divorce  may 
be  conferred  upon  the  courts  by  agreement 
of  the  parties.  Stone  v.  Bayley,  48:  429, 
134  Pac.  820,  75  Wash.  184. 

158.  Failure  to  pay  the  allowance  for  the 
support  of  the  children  which  are  committed 
to  the  custody  of  the  mother  upon  the  grant- 
ing of  a  divorce,  with  an  allowance  for 
support  to  be  paid  by  the  father,  does  not 
render  him  liable  for  criminal  prosecution 
under  the  statute  for  desertion  and  aban- 
donment. People  V.  Dunston,  42:  1065,  138 
N.  W.  1047,  173  Mich.  368.  (Annotated) 

yill.  Agreetnents      for      support      atitl 
maintenance. 

a.  In  general. 

{See  also   same   heading   in   Digest   L.R.A. 
1-10.) 

Release   of   claim   growing  out   of   contract 
for   support   upon    separation,   see  Ac- 
cord AND  Satisfactiox,  22. 


950 


DIVORCE  AND  SEPARATION,    VIII.    b— DOCUMENTS. 


Effect  of  separation  agreement  on  right  to 
inlierit,  see  Descent  and  Distribution, 
27. 

Revocation  of  will  by  settlement  of  prop- 
erty rights  in  anticipation  of  divorce, 
see  Wills,  58. 

Validity    of    anticipatory    contract    making 

^  provision  for  wife  in  event  of  her  ob- 
taining divorce  for  subsequent  fault  of 
husband,  see  Contracts,  478. 

Parol  evidence  to  contradict  apparent  pur- 
pose of  contract  to  effect  renunciation  of 
marital  rights,  see  Evidence,  955. 

159.  A  contract  between  a  husband  and 
wife  who  have  separated,  for  a  specified 
maintenance,  to  be  paid  by  him  to  her,  is 
enforceable  under  statutes  giving  the  wife 
unlimited  right  to  contract.  Winter  v.  Win- 
ter, 16:  710,  84  N.  E.  382,  191  N.  Y.  462. 
Effect  of  remarriage  or  resumption  of 

marital  relations. 

160.  Reconciliation  and  the  resumption 
of  marital  relations  do  not  necessarily  avoid 
a  separation  agreement  previously  made  by 
the  parties;  such  effect  depending  on  the 
question  whether  the  provisions  of  the  con- 
tract and  the  conduct  and  circumstances 
show  an  intention  to  treat  the  agreement 
as  no  longer  in  force.  Dennis  v.  Perkins, 
43:  1219,   129  Pac.   165,  88  Kan.  428. 

( Annotated ) 

161.  Reconciliation  and  the  resumption 
of  marital  relations  do  not  warrant  the 
court  in  deeming  ,a  separation  agreement 
avoided,  any  further,  if  at  all,  than  its 
terms,  taken  in  connection  with  the  situ- 
ation and  conduct  of  the  parties,  indicate 
their  intention  to  avoid  it.  Dennis  v.  Per- 
kins, 43:  1219,  129  Pac.  165,  88  Kan.  428. 

162.  Remarriage  of  the  parties  does  not 
invalidate  a  contract  by  which  a  divorced 
man  agrees  to  allow  his  former  wife  an 
annuity,  to  be  secured  by  a  trust  deed  on 
real  estate,  in  liieu  of  alimony  allowed  to 
her  by  a  decree  of  divorce,  from  the  lien 
of  which  his  property  is  to  be  released, 
and  as  a  marriage  settlement.  Savage  v. 
Savage,  3:  923,  141  Fed.  346,  72  C.  C.  A. 
404.  (Annotated) 

b.  Validity  of. 

(See  also   same   heading   in  Digest  L.R.A. 
-       1-70.) 

163.  A  husband  and  wife  cannot  contract 
to  renounce  their  marital  riarhts.  Hill  v. 
Hill,  12:  848,  67  Atl.  406,  74  N.  H.  288. 

(Annotated) 

164.  A  provision  in  a  contract  looking  to 
the  separation  of  husband  and  wife,  that 
she  will  accept  a  certain  sum  in  satisfaction 
of  her  claims  against  his  estate,  is  not  sepa- 
rable from  the  provision  as  to  separation, 
and,  the  latter  being  void,  the  former  falls 
with  it.  Hill  V.  Hill,  12:  848,  67  Atl.  406,  74 
N.  H.  288. 

165.  A  promise  by  the  husband  to  make 
a  payment  to  his  wife,  in  discharge  of  liis 
obligation  to  provide  for  her  support  after 
a  divorce  granted  to  her.  not  entered  into 
Digest   1-52  L.R.A.(N.S.) 


to  facilitate  the  granting  of  the  divorce, 
is  based  on  a  consideration,  and  is  valid. 
Nelson  v.  Vassenden,  35:  1167,  131  N.  W. 
794,   115  Minn.  1,  (Annotated) 

166.  That  a  promise  by  a  husband  to 
make  a  payment  to  his  wife  in  discharge  of 
his  obligation  to  provide  for  her  support 
after  divorce  is  granted  to  her  is  not  em- 
bodied in  a  divorce  decree  does  not  render 
it  invalid  if  not  in  conflict  with  the  de- 
cree. Nelson  v.  Vassenden,  35:  1167,  131 
N.  W.  794,  115  Minn.  1.  -^ 

167.  An  agreement  by  a  man  to  pay  his 
wife,  from  whom  he  has  separated,  a  speci- 
fied sum  per  week  for  support,  does  not 
contravene  a  statute  forbidding  contracts 
which  relieve  him  from  liability  to  support 
his  wife.  Winter  v.  Winter,  16:  710,  84  N. 
E.  382,   191  N.  Y.  462. 

168.  A  separation  agreement  by  which  a' 
man  worth  from  $15,000  to  $60,000  pays 
his  wife,  who  has  notiiing,  is  in  disliess, 
and  with  no  one  to  look  to  for  advice, 
$500  in  lieu  of  all  interest  in  his  estate, 
will  be  set  aside  as  unfair.  McConnell  v. 
McConnell,  33:  1074,  136  S.  W.  931,  98  Ark. 
193. 


DOCKED  TAII,  HORSES. 

Right  of  state   to  forbid   importation   and 
use  of,  see  Commerce,  38. 


DOCKET. 

Sufl^ciency    of    entry    in,    see    Appeal    and 

EBRv.it,   151. 


DOCKS. 


See  W'harves. 


DOCTRINE. 


Of    religious    societies,    see    Rsa^iGiotrs    So- 
^  cietjes. 


<»•»■ 

DOCUMENTARY  EVIDENCE. 

See  Evidence,  IV. 


DOCUMENTS. 


Production  of,  generally,  see  DiscovEasY 
AND  Inspection,  I. 

Privilege  against  compulsory  production  of 
books  or  documents,  see  Criminal  Law, 
]08-]18. 

Sealed  packet  as,  see  Discovery  and  In- 
spection, 9. 


DOG  GRATES— DOMICIL. 


951 


Action   to  compel  delivery  of,  by   attorney, 

see  JlsTOPPEL,  199. 
Mandamus  to  compel  officer  to  deliver  copy 

thereof,  see  Mandamus,  7. 
Mandamus    to    compel    production    of,    see 

Mandamus,  24. 
Taking  of,  into  jury  room,  see  Trial,  13-15. 


DOG  GRATES. 

As  fixtures,  see  Fixtires,  22. 


DOGS. 

Taxes  on,  see  Animals,  I.  f. 

Liability  for  injuries  by,  see  Animals,  II.  c, 
2. 

Fine  for  keeping  dog  which  does  not  wear 
collar,  see  Animals,  3. 

Arrest  of  passenger  for  refusal  to  put  dog 
in  baggage  car  and  to  pay  fare  for  it, 
see  Carriers,  155. 

Liability  for  injury  to  passenger  by,  see 
Carriers,  202. 

Burial  of,  in  cemetery,  see  Cemeteries,  3 ; 
Injunction,  41. 

Presumption  that  dog  will  not  display  vi- 
cious propensities  toward  keeper,  see 
Evidence,  648. 

Opinion  evidence  as  to  habits  of,  see  Evi- 
dence, 1201. 

Evidence  of  pedigree  of  dog  killed,  see  Evi- 
dence, 1275. 

Evidence  as  to  value  of  dog  killed,  see  Evi- 
dence, 1691. 

Trailing  of  criminal  with  bloodliound,  see 
Evidence,  1984-1988,  2356,  2357  ;  Irial, 
931. 

Liability  for  killing  of,  or  injury  to,  see 
Street  Railways,  52. 


DOING  BUSINESS. 

By  foreign  insurance  company,  see  Insur- 
ance, 18,  19. 

By  foreign  corporation  generally,  see  Cor- 
porations, VII.  b. 


DOMESTIC    RELATIONS. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  I.  c. 

In  general,  see  various  particular  subjects, 
such  as  Divorce  and  Separation; 
Guardian  and  Ward;  Husband  and 
Wife;  Infants;  Marriage:  AIaster 
AND  Servant;  Parent  and  Child. 


DOMESTIC  SCIENCE. 


DOMESTIC  SERVANT. 

As  fellow   servant,   see  Maste:r  and   Serv- 
ant, 795. 


DOMICIE. 


Instruction  in,  see  Schools,  I.  a. 
Digest   1-52  E.R.A.(N.S.) 


Acquirement    of,    in    foreign    country,    see 

Conflict  of  Laws,  119. 
Of    wife    abandoned    by   husband,    see   Con- 
flict OF  Laws,  121. 
Of    child    for    purpose    of    jurisdiction,    see 

Courts,  17 ;  Guardian  and  Ward,  6. 
For  purposes  of  divorce  suit,  see  Divorce 

and  Separation,  II. 
Duty  of  wife  to  follow  husband  to  new  domi- 

cil,  see  Divorce  and  Separation,  49. 
For  purpose  of  election,  see  Elections,  9-14. 
Presumption  and  burden  of  proof  as  to,  see 

Evidence,  127,  128,  318. 
Evidence  on  question  of  domicil  of  infant, 

see  Evidence,  767. 
Effect  of,  on  jurisdiction  of  action  to  annul 

marriage,  see  Marriage,  27. 
Jurisdictional  averment,  see  Pleading,  166- 

168. 
Residence  for  school  purposes,  see  Schools, 

6-8. 
As  question  of  fact,  see  Trial,  283. 
As  one  of  mixed  law  and  fact,  see  Trial, 

162. 

1.  The  domicil  of  one  through  whose 
dwelling  runs  the  boundary  line  dividing 
two  municipalities  is  in  the  one  containing 
the  portion  of  the  structure  most  closely 
connected  with  the  primary  purposes  of  a 
dwelling.  East  Montpelier  v.  Barre,  lo:  874, 
66  Atl.  100,  79  Vt.  542.  (Annotated) 
Of  child  after  divorce   or  separation. 

2.  The  domicil  of  an  infant  follows  that 
of  his  father  upon  the  latter's  changing  his 
domicil  from  one  state  to  another,  notwith- 
standing an  agreement  between  its  parents, 
upon  their  separation,  that  the  mother 
should  have  tlie  control  of  the  child.  Lan- 
ning  V.  Gregory,  10:  690,  99  S.  W.  542,  100 
Tex.  310. 

3.  The  domestic  status  of  a  child  is, 
for  the  time,  changed  by  a  decree  taking  it 
from  tlie  custody  of  its  father,  who  resides 
in  another  state,  and  consigning  it  to  that 
of  its  mother  for  a  period  of  years.  Lan- 
ning  V.  Gregory,  10:  690,  99  S.  W.  542,  100 
Tex.   310. 

Change  of. 

Sufficiency  of  evidence  to  show  change,  see 

Evidence,  2216. 
Right  of  next  of  kin  to  change  domicil  of 

infant     after     death     of     parents,     see 

Gtjabdian  and  Ward,  25. 
Power  of  infant  to  change,  see  Infants.  59. 
Change  of,  which  will  relieve  property  from 

taxation,  see  Taxes,  124. 
Question   for  jury  as  to  intent,  see  Trial, 

283. 

4.  A  residence  within  the  state,  once 
acquired,  continues  until  an  actual  or  con- 
structive  residence   elsewhere   has  been   ac- 


952 


DONATIO    CAUSA    MORTIS— DOWER. 


quired.     Brown   v.    Beckwith,   i:  778,   51    S. 
E.  977,  58  W.  Va.   140. 

5.  One's  character  as  a  nonresident  is 
not  cliaiiged  hy  coniiiij^  into  tlie  state  for 
the  purpose  of  administering  upon  an  estate, 
with  the  intention  of  remaining  there  as 
long  as  his  duties  may  require,  if  he  retains 
his  domicil  in  another  state.  Re  Mulford, 
i:  341,  75  N.  E.  345,  217  111.  242. 

6.  One  does  not  lose  his  domicil  so 
as  to  be  e.xempt  from  taxation  there,  by 
starting  on  an  extended  journey  with  the 
intention  of  establishing  the  domicil  else- 
where, until  he  has  actually  established 
such  domicil.  Barhydt  v.  Cross,  40:  986, 
136  N.  W.  525,  156  Iowa,  271. 

(Annotated) 

7.  Whether  a  departure  from  an  estab- 
lislied  domicil  in  this  state  to,  and  a  resi- 
dence in,  some  other  state,  results  in  an 
abandonment  of  the  same  as  a  legal  resi- 
dence, depends  upon  the  circumstances  sur- 
rounding each  particular  case ;  and  the 
question  is  controlled  largely  by  the  inten- 
tion of  the  person  making  the  change. 
Bechtel  v.  Bechtel,  12:  iioo,  112  N.  W.  883, 
101  Minn.  511. 

8.  A  change  of  boundary  lines  so  as  to 
transfer  a  person's  dwelling  from  one  mu- 
nicipality to  another  after  he  has  removed 
to  a  third,  does  not  effect  a  change  of  his 
residence  from  the  one  to  the  other.  East 
Montpelier  v.  Barre,  10:  874,  66  Atl.  100, 
79    Vt.    542. 

9.  A  woman  does  not  effect  a  change  of 
domicil,  so  as  to  deprive  the  probate  courts 
of  her  former  state  of  residence  of  juris- 
diction of  her  estate,  by  removing  into  an- 
other state  with  her  husband  for  the  benefit 
of  his  health,  and  remaining  there  after  his 
death,  so  that  her  sojourn  there  is  in  all 
about  twelve  years,  where  both  her  hus- 
band and  herself  always,  except  in  casual 
reference  to  "home,"  claimed  their  domicil 
at  the  old  residence,  no  change  of  property 
or  business  interests  having  been  effected. 
Pickering  v.  Winch,  9:  1159,  87  Pac.  763,  48 
Or.   500.  (Annotated) 


DONATIO  CAUSA  MORTIS. 


See  Gift,  II. 


DONATION. 


On  condition  of  locating  public  buildings 
near  property  donated,  see  Assumpsit, 
13;  Contracts,  518,  614. 

Of  public  money,  see  Public  Moneys. 

See  also  Gift. 


DORMANCY. 


Of    judgment,    see    Incompetent    Peibsons, 

30;   Judgment,  265-267,  318. 
Digest   1-52   I..R.A.(N.S.) 


DOUBLE  COUNTS. 

See  Action  or  Suit,  107 ;   Pleading,  18ft- 

188. 


DOUBLE  DAMAGES. 

See  Damages,  IV. 


DOUBLE  INDEMNITY. 

On  accident  policy,  see  Insurance,  803. 

^-—^ 

DOUBLE  TAXATION. 

In  requiring  labor  on  highway,  see  High- 
ways, 143. 

By  imposition  of  license  tax,  see  Licf,nse, 
25-28. 

In  general,  see  Taxes,  26-34,  270,  364. 


DOUBTFUL  TITLE. 

Specific  performance  of  contract  in  case  of, 
see  Specific  Performance,  I.  e,  2. 


DOVES. 

Criminal    liability    for    killing,    see    Mali- 
cious Mischief. 

_. '  .FEfi 


DOWER. 

/.  Bight  to,   1—33. 

a.  Nature  and  extent,  t. 

b.  In  what  property,  2—11. 

c.  Haw  barred,    12—33. 

II.  Rlfjhts  and  remedies  of  widow,  34— 
47. 

Proper  remedy  to  review  decree  of  bank- 
ruptcy court  disallowing  claim  for,  see 
Appeal  and  Error,  55. 

Sale  of  bankrupt's  property  free  from  wife's 
right  of,  see  Bankruptcy,  2. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  106,  107. 

Enlarging  dower  rights  as  against  holder 
of  judgment  lien  on  property,  see  Con- 
stitutional Law,  773. 

Jurisdiction  of  petition  for  allotment  of 
dower  in  personalty,  see  Courts,  240, 
241. 

Conveyances  in  fraud  of  wife's  right  cf,  see 
Husband  and  Wife,  II.  j,  2. 

Effect  on  dower  of  disaffirmance  by  infants 
of  deed  executed  jointly  with  their 
mother  of  property  in  which  she  had 
a  dower  interest,  see  Infants,  89. 


DOWER,  I.  a,  b. 


933 


Entry  of  judgment  nunc  pro  tunc  against 
dower  rights  of  wife,  see  Judgmem,  62. 

Effect  of  dower  estate  to  prevent  bar  of 
laches  as  against  heirs,  see  Limitation 
OF  Actions,  60. 

Right  to,  entitling  wife  to  redeem  from  fore- 
closure sale,  see  Mortgages,  161-163, 
166,  167. 

Right  of  widow  prior  to  assignment  of 
dower  to  maintain  trespass  quare 
clausum,  see  Pakties,  22. 

Attempt  to  defeat  action  for.  on  theory  of 
nontenure  after  plea  in  bar,  see  Plead- 
ing, 512. 

Effect  of  dower  right  on  specific  perform- 
ance, see  Specific  Performance,  119. 

Inheritance  tax  on,  see  Taxes,  311,  312. 

Succession  tax  on  provision  for  wife  in 
lieu  of,  see  Taxes,  313. 

Effect  of  selling  property  imder  mistaken 
belief  that  it  is  subject  to,  see  Vendor 
and  Purchaser,  8. 

Dowress  as  heir  of  husband,  see  Wills,  165. 

I.  Right  to. 

a.  Natnre  and  extent. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Year's  support  to  widow,  see  Executors 
AND    Administrators,    116,    117. 

Priority  of  legacy  given  in  satisfaction  of 
dower,  see  Wills,  406. 

1.  During  the  life  of  the  husband,  the 
dower  interest  of  the  wife  in  his  estate  is 
not  a  vested  one  growing  out  of  the  marriage 
contract,  but  a  mere  expectancy  or  possibil- 
ity incident  to  the  marriage  relation,  con- 
tingent upon  her  surviving  the  husband. 
Stitt  V.  Smith,  13:  723,  113  N.  W.  §32,  102 
Minn.  253. 

5.  In  ivhat  property. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

2.  A  widow  is  dowable  to  the  extent  of 
one  third  of  the  real  estate  whereof  the 
husband,  or  anyone  to  his  use,  at  any  time 
during  the  coverture,  was  seised  of  an  in- 
heritance such  as  that  issue  of  the  mar- 
riage might  inherit  the  same  as  heir  to  the 
husband,  unless  her  right  to  dower  therein 
has  been  lawfully  barred  or  relinquished. 
Couch  V.  Eastham,  39:  307,  73  S.  E.  314,  69 
W.  Va.  710. 

3.  Where  the  rule  that  a  widow  is 
dowable  only  in  lands  of  which  her  hus- 
band died  seised  and  possessed  prevails, 
the  widow  of  an  improving  cotenant  is  not 
entitled  to  have  assigned,  in  addition  to 
dower  in  her  husband's  undivided  share 
in  the  whole  premises,  a  dower  estate  in 
the  improvements  placed  thereon  by  her 
Dig^est   1-52  I,.R.A.(N.S.) 


husband,  although  in  a  partition  of  the 
premises  by  sale,  the  husband  would  be 
equitably  entitled  to  be  compensated  for 
his  improvements  to  the  extent  they  may 
have  enhanced  the  common  property. 
Helmken  v.  Meyer,  45:  738,  75  S.  E.  586, 
138   Ga.  457.  (Annotated) 

4.  Where  one  is  seised  of  an  estate  in 
land  that  is  limited  only  on  his  dying  with- 
out lawful  children,  the  estate,  being  one 
that  can  pass  to  heirs  if  lawful  children 
are  born,  is  an  "estate  of  inheritance"  in 
which  the  widow  is  dowable  though  it  ex- 
pire by  failure  of  issue.  Couch  v.  Eastham, 
39:  307,  73  S.  E.  314,  69  W.  Va.  710. 

(Annotated) 

5.  The  widow  of  a  grantor,  who  con- 
ve3'ed  land  in  trust  for  his  benefit  during 
life,  but  who  retained  the  absolute  and  un- 
limited power  of  disposal  of  the  land  in 
fee  simple,  is  entitled  to  dower  in  the  land 
on  the  ground  that  her  hus\)and  was  the 
owner  of  a  perfect  equitable  estate  in  fee 
simple  during  coverture.  Mej'er  v.  Bar- 
nett,  6:  1191,  56  S.  E.  206,  60  W.  Va.  467. 

6.  A  widow  cannot  recover  her  dower 
interest  for  lands  alienated  by  her  husband 
during  his  lifetime,  out  of  his  estate,  either 
at  common  law  or  under  a  statute  passed 
after  the  alienation  of  the  property,  making 
her  dower  interest  one  third  absolutely  in 
value  of  the  real  estate  possessed  by  him 
during  coverture.  Re  Park's  Estate,  8:  iioi, 
87  Pac.  900,  31  Utah,  255.  (Annotated) 

7.  There  is  no  dower  interest  in  real 
estate  of  which  the  husband  has,  in  his  life- 
time, no  present  estate  of  inheritance. 
Gray  v.  Whittemore,  10:  1143,  78  N.  E. 
422,  192  Mass.  367. 

8.  A  railroad  does  not  take  land  pur- 
chased for  a  gravel  pit  free  from  the  right 
of  the  grantor's  wife  to  dower,  although  it 
so  far  devotes  the  land  to  public  use  as  to 
secure  therefrom  materials  for  its  roadbed. 
McAllister  v.  Dexter  &  P.  R.  Co.  29:  726, 
76  Atl.  891,  106  Me.  371.  (Annotated) 

9.  A  dower  interest  does  not  vest  in  the 
second  wife  of  a  man  who,  his  first  wife 
having  inherited  real  estate,  receives  a  grant 
to  himself  and  his  wife  and  the  wife's  heirs 
from  the  other  heirs  for  purposes  of  parti- 
tion. Sprinkle  v.  Spainhour,  25:  167,  62 
S.  E.  910,  149  N.  C.  223. 

In  personalty. 

10.  Where  the  statute  provides  that  the 
widow  shall  be  endowed  of  personal  estate 
as  well  as  realty,  policies  of  insurance  is- 
sued tp  insured  on  his  own  life,  payable  to 
himself  or  at  his  death  to  his  executors,  ad- 
ministrators, or  assigns,  which  remain  his 
property  at  his  death,  are  subject  to  the 
widow's  dower.  Burdett  v.  Burdett,  35: 
964,   109  Pac.  922,  26  Okla.  416. 

(Annotated ) 

11.  The  term  "seised,"  as  used  in  a  stat- 
ute giving  a  right  to  dower  in  personalty, 
means  title  or  ownership  which  carries 
with  it  the  immediate  right  of  possession. 
Burdett  v.  Burdett,  35:  964,  109  Pac.  922, 
26  Okla.  416. 


•54 


DOWER,  I.  c. 


o.  Hotp  harred. 

(See  also   same   heading   in  Digest   L.R.A.. 

1-10.) 

Estoppel  to  claim,  see  Estoppel,  64,  131, 
2C0. 

Effect  of  laches,  see  Limitation  of  Ac- 
tions, 37. 

Effect  of  election  to  take  under  will,  see 
Wills,  III.  i. 

12.  Dower  can  be  set  aside  only  by  the 
plain  mandate  of  a  statute,  or  by  necessary 
implication  therefrom.  Chrisman  v.  Lin- 
derman,  lo:  1205,  100  S.  W.  1090,  202  Mo. 
605. 

13.  A  release  of  dower  cannot  be  en- 
forced after  the  instrument  embodying  it, 
which  was  given  to  secure  the  debt  of  the 
husband  alone,  has  been  set  aside  in  a 
bankruptcy  proceeding  against  him,  as  a 
voidable  preference  under  the  bankruptcy 
act.  Re  Lingafelter,  32;  103,  181  Fed.  24, 
104  C.  C.  A.  38.  (Annotated) 

14.  Congress  has  no  power  to  terminate 
the  dower  rights  existing  under  state  laws, 
upon  the  bankruptcy  of  the  husband. 
Thomas  v.  Woods,  26:  n8o,  173  Fed.  585, 
97  C.  C.  A.  535.  (Annotated) 

15.  Permitting  her  husband  to  use  the 
proceeds  of  his  land  in  her  support  does 
not  estop  a  woman  from  asserting  her  dower 
rights  in  the  property.  Hyatt  v.  O'Connell, 
3:  971,  107  N.  W.  599,  130  Iowa,  567. 

(Annotated) 

16.  Failure  of  a  woman  to  search  for 
her  husband,  who  has  disappeared,  will  not 
estop  her  from  asserting  her  dower  rights 
in  property  which  he  conveyed  during  his 
absence.  Smith  v.  Fuller,  16:  98,  115  N.  W. 
912,  138  Iowa,  91. 

By  conveyance  to  third  person. 
See  also  infra,  19. 

17.  The  joinder  by  a  married  woman  in 
a  deed  of  her  husband's  property  contain- 
ing general  covenants  of  warranty  will  not 
estop  her  from  asserting  her  dower  rights 
in  the  property,  where  the  statute  pre- 
scribed the  method  of  renunciation  of  such 
right  after  her  examination  separate  and 
apart  from  her  husband.  Gainey  v.  Ander- 
son. 31:  323,  68  S.  E.  888,  87  S.  C.  47. 

18.  The  reconveyance  by  a  man  of  real 
estate,  which  had  been  deeded  to  him  on 
condition,  because  of  his  breach  thereof, 
will  bar  the  dower  rights  of  his  wife  where 
no  intent  to  defraud  her  is  shown.  Sullivan 
V.  Sullivan,  22:  691,  117  N.  W.  1086,  139 
Iowa,  679.  (Annotated) 
By  mortgage  or  foreclosure  thereof. 

19.  The  conveyance  by  a  man  and  wife 
of  his  land  in  satisfaction  of  a  mortgage 
which  they  had  executed  on  the  property, 
in  which  the  wife  had  renounced  her  dower, 
operates,  in  the  absence  of  express  inten- 
tion to  the  contrary,  as  a  satisfaction  of 
the  mortgage,  and  causes  a  reverter  of  the 
wife's  dower  interest,  which  she  may  en- 
force if  it  is  not  released  in  the  deed. 
Digest   1-52  I<.R.A.(N.S.) 


Gainey  v.  Anderson,  31:323,  68  S.  E.  888, 
87  S.  C.  47.  (Annotated) 

20.  A  mortgage  in  which  the  wife  re- 
leased her  dower  right  cannot,  r.fter  it  has 
been  barred  by  the  statute  of  limitations, 
avail  to  prevent  an  enforcement  of  such 
right  against  the  property,  which  passed 
into  the  possession  of  the  moitgagee  in 
satisfaction  of  the  mortgage  debt  without 
foreclosure.  Gainey  v.  Anderson,  31:  323, 
68  S.  E.  888,  87  S.  C.  47. 

By  tax  sale. 

21.  A  tax  sale  is  not  judicial  within  the 
meaning  of  a  statute  annulling  dower 
rights  by  judicial  sale.  Lucas  v.  Purdy, 
24:  1294,   120  N.  W.  1063,  142  Iowa,  359. 

22.  Under  a  statute  making  taxes  on 
real  estate  a  perpetual  lien  on  the  prop- 
erty against  all  persons,  a  tax  sale  of  a 
man's  land  destroys  his  wife's  inchoate 
right  of  dower  in  the  property,  where  the 
taxes  are  collectable  only  out  of  the  land, 
and  a  tax  title  is  regarded  as  a  new  one 
derived  directly  from  the  state.  Lucas  v. 
Purdy,  24:  1294,  120  N.  W.  1063,  142  Iowa, 
359.  (Annotated) 
By  divorce. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  80. 

Repeal  of  statute  granting  dower  to  di- 
vorced wife,  see  Statutes,  365. 

23.  Acceptance,  by  a  wife,  of  a  sura  al- 
lowed her  by  a  decree  of  divorce  in  lieu  of 
dower,  bars  her  rights  under  an  antenuptial 
contract  which  provides  for  payment  to  iier, 
at  her  husband's  death,  of  a  certain  sum  of 
money  in  lieu  of  dower.  Long  v.  Barton, 
19:  384,  86  N.  E.  127,  236  111.  551. 

By  remarriage. 

24.  Remarriage  of  the  widow  does  not 
destroy  lier  dower  right,  although  the  de- 
cedent's real  estate  does  not  exceed  in  value 
the  homestead  right,  which  is  destroyed  by 
such  remarriage,  under  statutes  giving  her 
a  homestead  during  widowhood,  and  pro- 
viding that  in  the  assignment  of  her  rights 
the  value  of  the  homestead  shall  be  deducted 
from  her  dower,  and,  in  case  the  former 
equals  or  exceeds  the  latter,  no  dower  shall 
be  assigned,  the  homestead  and  dower  inter- 
ests not  being  merged.  Chrisman  v.  Lin- 
derman,  10:  1205,  100  S.  W,  1090,  202  Mo. 
605.  (Annotated) 

25.  The  marriage  of  a  woman  during 
her  husband's  lifetime,  to  another  man, 
and,  at  his  death,  her  taking  property  from 
him  by  will  and  subsequently  remarrying 
her  husband,  \vill  not  estop  her  from  claim- 
ing dower  in  land  sold  by  her  husband  prior 
to  such  transactions,  since  her  conduct 
could  not  have  misled  the  purchasers;  nor 
is  she  estopped  by  her  husband's  represen- 
tations in  the  deeds.  Smith  v.  Fuller,  16: 
98,  115  X.  W.  912,  138  Iowa,  91. 

By  antenuptial  agreement. 

By  postnuptial  agreement,  see  infra,  32,  3.3. 

Inadequacy  of  provision  in  antenuptial 
agreement  in  lieu  of  dower,  see  Hus- 
band AND  W^ife,  133. 

See  also  supra,  23;  Husband  and  Wifk, 
126. 


DOWER,  II. 


955 


26.  At  common  law  the  right  of  dower 
cannot  be  waived  or  lost  by  an  antenuptial 
agreement.  Rieger  v.  Schaible,  17:  866,  115 
N.  W.  560,  116  N.  W.  953,  81  Neb.  33. 

27.  Under  a  statute  providing  that  a 
jointure  settled  upon  a  wife  shall  bar  her 
right  of  do  ver,  such  right  is  not  lost  by  an 
antenuptial  contract  by  the  terms  of  which 
she  receives  no  freehold  estate  in  the  lands 
of  her  intended  husband.  Rieger  v.  Schaible, 
17:  866,  115  N.  W.  560,  116  N.  W.  953,  81 
Neb.  33. 

28.  A  statutory  provision  that  jointure 
is  a  bar  to  dower  does  not  ordinarily  deprive 
an  intended  wife  of  the  power  to  bar  her 
dower  by  any  other  form  of  antenuptial  con- 
tract. Rieger  v.  Schaible,  17:  866,  115  N. 
W.  560,  116  N.  W.  953,  81  Neb.  33. 

(Annotated) 

29.  An  antenuptial  contract  made  in 
good  faith  between  parties,  each  of  whom 
owned  real  and  personal  property  not 
disproportionate  in  value,  providing  that, 
in  consideration  of  mairiage,  each  party 
thereto  waived  and  released,  and  forever 
quitclaimed  and  renounced,  all  dower  and 
other  interest  in  and  to  the  real  estate  and 
personal  property  which  the  other  party  had 
or  should  thereafter  acquire,  the  expressed 
intention  being  that  all  the  property  of 
each  should  descend  to  his  or  her  lawful 
heirs,  released  and  devested  of  all  claims 
of  dower,  curtesy,  or  other  interest  that 
the  other  contracting  party  might  have  as 
husband  or  wife,  widower  or  widow,  under 
the  laws  of  the  state,  is  sufficient  to  bar 
the  widow's  statutory  allowance;  the  rights 
of  children  not  being  involved.  Rieger  v. 
Schaible,  17:  866,  115  N.  W.  560,  116  N.  W. 
953,  81   Neb.   33. 

30.  That  an  antenuptial  contract  barring 
dower  does  not  secure  for  the  wife  a  pro- 
vision for  support  after  the  death  of  the 
husband  will  not  prevent  the  court  from  en- 
forcing it,  if  it  is  free  from  fraud  or  over- 
reaching. Re  Deller,  25:  751,  124  N.  W.  278, 
141   Wis.  255. 

By  conveyance  to  xirife  or  settlement 
after  marriage. 

31.  A  mere  conveyance  of  real  estate  by 
a  husband  to  his  wife  does  not  have  the  ef- 
fect of  barring  her  dower  in  his  remaining 
property.  Cowdrey  v.  Cowdrey  (N.  J.  Err. 
&  App.)  12:  1176,  67  Atl.  Ill,  72  N.  J.  Eq. 
951. 

32.  A  written  marriage  settlement  exe- 
cuted after  the  marriage  is  not  effectual  to 
bar  the  wife's  dower  interests  under  statutes 
which  provide  a  settlement  executed  before 
marriage  as  the  only  means  of  effecting 
that  result,  without  the  possibility  of  her 
electing  to  take  her  statutory  rights  re- 
gardless of  the  settlement.  Rowell  v.  Bar- 
ber, 27:  1 140,  125  N.  W.  037,  142  Wis.  304. 

33.  The  mere  consent  by  a  widow  to  the 
recording  of  a  deed  of  property  exe- 
cuted in  accordance  with  a  marriage  settle- 
ment, taking  possession  of  the  property, 
and  collecting  the  rents,  does  not  amount  to 
an  election  to  take  under  the  contract  rath- 
er than  under  the  law,  if  without  delay  she 
recalls  her  consent  and  tenders  a  reconvey- 
Digest  1-52  L.R.A.(N.S.) 


ance.     Rowell  v.  Barber,  27:  1140,  125  N.  W. 
937,   142  Wis.  304. 

//.   Rights  and  remedies  of  widow. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Damages    for    failure    to    allow    dower,    see 
Damages,  308. 


Demand  for. 

Necessity  of  written  authority  to  enable  at- 
torney to  sign  demand  for,  see  Con- 
tracts,  255. 

See  also  infra,  47. 

34.  A  demand  for  dow.er  in  premises  de- 
scribed by  reference  to  a  recorded  deed  is 
sufficient,  although  the  deed  includes  two 
parcels,  and  dower  is  claimed  in  one  only  of 
them.  McAllister  v.  Dexter  &  P.  R.  Co. 
29:  726,  76  Atl.  P91,  106  Me.  371. 

35.  A  demand  for  dower  need  not  ptate 
the  portion  of  the  income  which  is  claimed, 
as  affected  by  the  question  whether  issue 
was  living  at  the  time  it  became  consum- 
mate or  not.  McAllister  v.  Dexter  &  P.  R. 
Co.  29:  726,  76  Atl.  891,  106  Me.  371. 

36.  A  demand  for  dower  by  an  attorney 
with  authority  to  make  demand  with  re- 
spect to  one  parcel  of  land  is  not  vitiated 
by  the  fact  that  his  demand  includes  an- 
other parcel  also.  McAllister  v.  Dexter  & 
P.  R.  Co.  29:  726,  76  Atl.  891,  106  Me.  371. 

37.  Dower  claimed  out  of  the  homestead 
may  be  set  aside  free  from  the  claims  of 
even  a  purchase  money  mortgage,  if  the 
remainder  of  testator's  property  is  sufficient 
to  satisfy  the  mortgage.  Haynes  v.  Rolstin, 
52:  540,  145  N.  W.  336,  164  Iowa,  180. 

(Annotated) 
Liability  to  pay  accrued  taxes. 

38.  Under  a  statute  providing  that  a 
widow  shall  be  endowed  of  a  third  part  of 
the  property  whereof  her  husband  died 
seised,  taxes  which  accrued  prior  to  assign- 
ment of  the  dower  cannot,  in  favor  of 
others  entitled  to  share  in  the  estate,  be 
deducted  from  the  cash  value  of  her  dower 
interest,  which  she  agrees  to  take  in  lieu 
of  dower  upon  sale  of  the  property,  whether 
they  accrued  before  or  after  the  death  of 
the  husband.  Underground  Electric  R.  Co. 
V.  Owsley,  40:  609,  196  Fed.  278,  116  C.  C. 
A.    98.  (Annotated) 

39.  A  provision  in  an  agreement  of  a 
widow  to  take  cash  in  lieu  of  dower  upon 
sale  of  the  property,  that  the  dower  shall 
be  valued  as  of  the  date  of  admeasure- 
ment, does  not  subject  her  interest  to  the 
lien  of  taxes  which  accrued  before  that  date. 
Underground  Electric  R.  Co.  v.  Owsley,  40: 
609,  196  Fed.  278,  116  C.  C.  A.  98. 

40.  Under  an  agreement  that,  in  case 
a  widow  will  take  her  dower  interest  in 
cash,  her  occupancy  of  the  property  before 
assignr\ent  of  dower  shall  be  without  charge 
to  her,  it  is  not  chargeable  with  taxes  even 
though  occupancy  prior  to  assignment 
might,  under  some  circumstances,  render 
her  interest  so  subject.     Cnderground  Elec- 


956 


DRAFTS— DRAINAGE  DISTRICTS. 


trie  R.  Co.  V,  Owsley,  40:  609,  196  Fed.  278, 
IIB  C.  C.  A.  98. 

41.  Under  a  statute  making  a  widow's 
dower  interest  subordinate  to  tlie  lien  of  a 
purchase-money  mortgage,  it  is  also  subor- 
dinate to  the  lien  which  the  mortgage  gives 
the  mortgagee  for  taxes  which  he  is  com- 
pelled to  pay  upon  the  property,  and  she 
is  not  entitled  to  reimbursement  for  the 
amount  of  such  lien  by  the  heirs,  who  are 
not  required  to  protect  her  dower  interest 
against  such  taxes.  Underground  Electric 
R.  Co.  V.  Owsley,  40:  609,  190  Fed.  278,  110 
C.  C.  A.  98. 

Assignment. 

When  action  for  assignment  of,  is  barred, 

see  Limitation  of  Actions,  265. 
Effect  of  election  not  to  take  under  will  on 

assignment,  see  Wills,  366. 

42.  Dower  will  be  assigned  according  to 
the  value  at  the  time  of  assignment,  and 
not  according  to  the  value  at  the  time  of 
the  husband's  death.  Williams  v.  Thomas, 
3  B.  R.  C.  929,  [1909]  1  Ch.  713.  Also  Re- 
ported in  78  L.  J.  Ch.  N.  S.  473,  100  L.  T. 
N.  S.  630.  (Annotated) 

43.  A  dowress  has  two  separate  and  dis- 
tinct rights,  namely,  one  third  of  the  rents 
and  profits  from  the  death  of  the  husband 
until  dower  is  assigned,  and  the  right  to 
have  dower  assigned;  and  if  she  claims  and 
enjoys  her  right  to  the  receipt  of  the  rents 
and  profits,  she  will  not  be  prejudiced  by 
reason  of  not  having,  during  that  period, 
claimed  her  right  to  an  assignment.  Wil- 
liams V.  Thomas,  3  B.  R.  C.  929,  [1909]  1 
Ch.  713.  Also  Reported  in  78  L.  J.  Ch.  N. 
S.  473,  100  L.  T.  N.  S.  630. 

44.  The  court  cannot,  in  allotting  dower, 
compel  the  widow  to  take  the  dwelling 
house,  under  a  statute  providing  tliat  her 
distributive  share  shall  be  set  off  so  as  to  in- 
clude the  dwelling  house,  unless  she  pre- 
fers a  different  arrangement.  Rice  v.  Rice, 
34:  917,  125  N.  W.  826,  147  Iowa.  1. 

45.  Devisees  of  remaining  land  of  one 
who  has  made  vokintary  deeds  to  certain 
of  his  children  cannot  complain  that  tes- 
tator's widow  is  required  to  take  her  dower 
interests  out  of  such  remaining  land,  in  ex- 
oneration of  the  land  conveved.  Rice  v. 
Rice,  34:  917,  125  N.  W.  826,  147  Iowa,  1. 

46.  Children  receiving  voluntary  deeds 
of  real  estate  from  their  father  are  entitled 
to  require  his  widow  to  take  her  dower  in- 
terests out  of  his  remaining  land,  if  she 
will  not  be  prejudiced  thereby.  Rice  v. 
Rice,  34:  917,   125  N.  W.   826,   147  Iowa,  1. 

(Annotated) 
Damages  for  detention. 

47.  A  widow  cannot  recover  damages  or 
rent  for  withholding  her  dower  until  de- 
mand is  made  for  its  assignment.  Hvatt  v. 
O'Connell,  3:  971,  107  N.  W.  599,  130*  Iowa, 
567. 


Payment  by  bank  of  draft  with  forged  in- 
dorsement, see  Banks,  129,  137. 

Bank  to  whicli  deed  with  siglit  draft  for 
purchase  price  is  sent  as  agent  of  ven- 
dor, see  Banks,  151. 

Money  received  by  insolvent  banker  for  pur- 
chase of,  as  trust  fund,  see  Banks,  205- 
208. 

With  bill  of  lading  attached,  see  Bills  of 
Lading. 

Construction  of  agreement  to  pay,  see  CON- 
TBACTS,  368. 

In  general,  see  Bills  and  Notes;  Chexiks. 


DRAINAGE  COMMISSIONERS. 

Delegation  of  power  to,  see  Constitution- 
al Law,  123. 

Admissibility  in  evidence  of  report  of,  see 
EVIDKNCE,  751. 


DRAFTS. 

Bank  draft  as  assignment,  see  Banks,  80. 
Payment    by    bank    of    forged    draft,    see 

Banks,  110,  111,  120. 
Digest   1-52  L.R.A.(N.S.) 


DRAINAGE    DISTRICTS. 

Liability  for  cost  of  maintaining  bridgo,  see 
Bridges,  5,  6. 

Delegation  of  power  to  drainage  commission- 
ers, see  Constitutional  Law,  123. 

Refusal  of  judicial  review  as  to  inclusion 
of  land  in,  see  Constitutional  Law, 
544. 

Liability  for  flooding  of  lands  by  obstruc- 
tion of  water,  see  Eminent  Domain, 
244. 

Estoppel  to  object  to  formation  of  drainage 
district,  see  Estoppel,  128. 

Statute  providing  for  costs  of  organization 
as  amendment  of  statute  authorizing 
organization,  see  Statutes,  358. 

1.  A  landowner  is  not  entitled  to  a 
hearing  uj)on  the  question  whetlier  or  not 
his  land  shall  be  included  in  a  district  which 
shall  bear  the  cost  of  a  drainage  improve- 
ment, if  provision  is  made  for  a  hearing  as 
to  the  assessment.  Ross  v.  Wright  County, 
1:  431,  104  N.  W.  506,  128  Iowa,  427. 

2.  The  drainage  of  lands  to  improve 
them  for  agricultural  purposes  cannot  be  re- 
garded as  an  exercise  of  the  police  power, 
so  as  to  exempt  the  land  so  drained  from 
liability  for  injury  caused  by  the  improve- 
ment to  other  land  not  within  the  district. 
Bradbury  v.  Vandalia  Levee  &  Drainage 
Dist.  19:  991,  86  N.  E.  163,  236  III.  36. 

3.  A  drainage  district  cannot  escape  lia- 
bility for  injury  done  by  its  improvements, 
to  lands  lying  out  of  its  limits,  on  the  theory 
that  it  is  an  involuntary  quasi  public  cor- 
poration not  liable  to  respond  in  damages 
for  any  of  its  acts,  where  its  organization 
depends  upon  a  petition  of  those  living  with- 
in its  limits,  and  the  statute  provides  that 
lands  lying  within  the  district  shall  be  lia- 
ble for  any  and  all  damages  which  shall  be 
sustained  by  any  lands  lying  above  such 
district  by  the  construction  of  its  works. 
Bradburv  v.  Vandalia  Levcj  &  Drainage 
Dist.  19:  991,  86  N.  E.  163,  236  111.  36. 


DRAINS  AND  SEWERS. 


957 


4.  The  failure  of  an  attempt  to  organize 
a  drainage  district  under  a  valid  statute 
does  not  prevent  the  assessment  upon  the 
property  within  its  proposed  boundaries,  of 
the  cost  of  the  preliminary  proceedings 
which  resulted  in  such  failure.  Northern  P. 
R.  Co.  V.  Pierce  County,  23  :  286,  97  Pac. 
1099.  51  Wash.  12. 

5.  Land  not  benefited  may  be  included 
in  a  drainage  district  the  organization  of 
which  is  authorized  by  a  statute  permit- 
ting it,  where  the  improvement  would  be 
of  special  benefit  to  a  majority  of  the  lands 
included  within  the  boundaries  of  the  dis- 
trict. Nortliern  P.  R.  Co.  v.  Pierce  County, 
23  :  286,  97  Pac.  1099,  51  Wash.  12. 

6.  That  land  included  in  a  drainage  dis- 
trict has  been  found  not  to  be  subject  to 
benefit  by  the  proposed  improvement  will 
not  prevent  its  assessment  for  the  prelim- 
inary expenses  of  the  enterprise,  where  it 
is  abandoned  because  the  cost  is  found  to 
exceed  the  benefit.  Northern  P.  R.  Co.  v. 
Pierce  County,  23:  286,  97  Pac.  1099,  51 
Wash.  12. 

7.  Statutory  authority  to  levy  a  tax  to 
pay  the  preliminary  expenses  of  organiz- 
ing a  drainage  district  which  fails  does  not 
violate  a  constitutional  provision  depriving 
the  legislature  of  power  to  impose  taxes 
upon  the  inhabitants  of  municipal  corpo- 
rations for  municipal  purposes,  since  the  or- 
ganization of  the  district  is  voluntarily  en- 
tered into  and  the  burden  of  paying  the  ex- 
penses necessary  to  effectuate  its  object  vol- 
untarily assumed.  Northern  P.  R.  Co.  v. 
Pierce  County,  23:  286,  97  Pac.  1099,  51 
Wash.  12. 

8.  A  statute  prescribing  that  one  must 
be  a  bona  fide  owner  of  land  within  the 
limits  of  a  drainage  district  to  entitle  him 
to  vote  upon  the  organization  thereof  and 
election  thereinafter  held  is  a  violation  of 
a  constitutional  provision  that  no  property 
qualification  shall  ever  be  required  for  any 
person  to  vote  or  hold  office  except  in  school 
elections  or  elections  creating  indebtedness. 
Ferbrache  v.  Drainage  Dist.  No.  5,  44:538, 
128  Pac.  553,  23  Idaho,  8.5.  (Annotated) 

9.  Under  a  constitutional  provision 
that  the  legislature  may  prescribe  qualifica- 
tions, limitations,  and  conditions  for  the 
right  of  suffrage  additional  to  those  pre- 
scribed in  other  parts  of  the  Constitution, 
but  shall  never  annul  any  such  constitu- 
tional provisions,  a  statute  giving  to  every 
natural  person  of  legal  age  who  is  a  bona 
fide  owner  of  real  estate  within  the  limits 
of  a  drainage  district  the  right  to  vote  upon 
the  organization  thereof  and  elections  there- 
inafter held  is  a  violation  of  another  con- 
stitutional provision  requiring  voters  to  be 
citizens  of  the  United  States  of  a  certain 
age,  and  residents  of  the  state  for  a  certain 
period,  and  in  the  country  where  the  vote 
is  desired  to  be  cast  for  a  certain  period 
previous  to  the  election,  requiring  them  to 
be  registered.  Ferbrache  v.  Drainage  Dist. 
No.  5,  44:  538,  128  Pac.  553.  23  Idaho,  85. 

10.  Elections  to  determine  upon  the 
creation  and  organization  of  a  drainage  dis- 
trict are  not  elections  alone  creating  an 
indebtedness,  so  as  to  authorize  a  property 
Digest   1-52  I<.R.A.(N.S.) 


qualification  in  order  to  exercise  the  riglit 
of  suffrage  therein.  Ferbrache  v.  Drainage 
Dist.  No.  5,  44:  538,  128  Pac.  553,  23  Idaho, 
85. 


DRAINS  AND  SERVERS. 

I.  In     general;     establishment;     re- 
pairs;  statutes,    1—7. 
II.  Procedure,  8. 
III.  Assessments,  9,   10. 

As  to  drainage  district,  see  Drainage  Dis- 
tricts. 

Pollution  of  water  by  sewage,  see  Attorney 
General,  9;  Injunction,  228;  Nrji- 
SANCES,  140,  183;  Waters,  119-125, 
226-228. 

Refusal  of  judicial  review  as  to,  see  Con- 
stitutional Law,  544. 

Easement  for  public  sewer  as  within  cove- 
nant against  encumbrances  in  deed  of 
property,  see  Covenants  and  Condi- 
tions, 59. 

Nominal  damages  for  flooding  by  destruc- 
tion of,  see  Damages,  11. 

Easement  in,  see  Easements,  11,  49. 

Easement  to  maintain  sewer  across  private 
property,  see  EASEiCENTS,   16. 

Implied  reservation  of  right  to  drainage,  see 
EasembJnts,   41. 

Power  of  municipality  to  condemn  spur 
track  to  power  plant  to  be  used  in  con- 
nection with  drainage  system,  see  Emi- 
nent Domain,  93. 

Estoppel  to  dam  up  drainage  ditch,  see 
Estoppel,  231. 

Admissibility  in  evidence  of  report  of  drain- 
age commissioner,  see  Evidence,  751. 

Admissibility  in  evidence  of  records  as  to 
laying  out  of,  see  Evidence,  752. 

City's  authority  to  pay  damages  from  con- 
struction of,  see   Highways,   32. 

Liability  for  turning  steam  into  sewer,  see 
Highways,  267,  268. 

Liability  for  negligence  in  constructing,  .see 
Highways,  378. 

Landlord's  liability  for  nuisance  resulting 
from,  see  Landlord  and  Tenant,  136, 
137. 

Liability  for  negligence  of  independent  con- 
tractors in  constructing,  see  Master 
AND  Servant,  992,  1034. 

Municipal  liability  for  injury  by  defects  in, 
see  Municipal  Corporations,  II.  g,  3. 

Validity  of  contract  by  city  for  construc- 
tion of,  see  Municipal  Corporations, 
225,  233,  234. 

Right  to  recover  for  increased  cost  in  case 
of  alteration  in  plan,  see  Municipal 
Corporations,  246. 

Exceeding  debt  limit  for  sewer,  see  Munici- 
pal Ccrporatioxs,  263,  270. 

Municipal  liability  for  injury  by  defects  in, 
see  Municipal  Corporations,   If.  g,  3. 

Liability  for  injury  by  blasting  during  con- 
struction of.  see  Municipal  Corpora- 
tions, 345,  346. 

Municipal  liability  for  injury  to  employee 
engaged  in  constructing,  see  Municipal 
Corporations,  377. 


958 


DRAINS    AXD    SEWERS,    I.— 111. 


Joint  liability  for  nuisance  created  by  sew- 
age plant,  see  Nuisances,  319. 

Authority  of  son  to  represent  father  in  per- 
mitting municipality  to  construct  sew- 
er on  property,  see  Principal  and 
Agent,  28. 

Proximate  cause  of  nuisance  created  by, 
see  Proximate  Cause,  33. 

Insufficiency  of,  as  proximate  cause  of  in- 
jury by  surface  water,  see  Proximate 
Cause,  71. 

Duty  of  railroad  company  to  bridge,  see 
Railroads,  30. 

Effect  of  construction  of,  on  railroad  com- 
pany's liability  for  obstructing  outlet 
of  pond,  see  Railroads,  294. 

Specific  performance  of  contract  for  sewer 
service,  see  Specific  Performance,  9, 
22. 

Cause  of  settling  of  earth  in  sewer  trench, 
see  Trial,  163. 

Improper  filling  of  trench  as  proximate 
cause  of  injury,  see  Trial,  184. 

Proceeding  to  establish  a  civil  suit  within 
meaning  of  statute  allowing  change  of 
venue,  see  Venue,  22. 

Drainage  of  surface  water,  see  Waters,  II. 
g- 

J.  In  general;   establishment;   repairs; 
statutes. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Liability  on  bond  of  contractor  for  construc- 
tion of,  see  Bonds,  15-17. 

Stipulation  for  minimum  wage  in  contract 
for  construction  of  sewer,  see  Con- 
tracts, 790. 

Right  to  condemn  railroad  property  for,  see 
Eminent  Domain,  30. 

Prospective  construction  of  statute  as  to  lo- 
cation of  drain,  see  Statutes,  298. 

1.  A  corporation  which  constructs  a 
sewer  under  legislative  authority  empower- 
ing it  to  rent  or  sell  the  right  to  use  it  may 
be  compelled  to  permit  anyone  to  connect 
with  it  who  wishes  to  do  so  upon  payment 
of  a  fee  which  the  court  approves  as  rea- 
sonable. Pulaski  Heights  Sewerage  Co.  v. 
Loughborough,  ag:  319,  129  S.  W.  536,  95 
Ark.  264. 

Validity  of  statutes. 

Attempt  to  confer  upon  courts  power  to  de- 
termine necessity  for,  see  Constitu- 
tional Law,  125. 

Construction  of,  so  as  to  sustain  validity, 
see  Statutes,  227. 

2.  Whether  or  not  a  statute  providing 
for  the  drainage  of  agricultural  lands  is  con- 
stitutional should  be  decided  in  the  light  of 
conditions  existing  in  the  state  where  it  is 
enacted.  Billinpfs  Sugar  Co.  v.  Fish,  26: 
973,  106  Pac.  565,  40  Mont.  256. 

3.  The  matter  of  public  utility  should 
be  given  great  consideration  in  determining 
whether  or  not  a  statute  providing  for  a 
system  of  drainage  for  agricultural  pur- 
poses is  constitutional.  Billings  Sugar  Co. 
v.  Fish,  26:  973,  106  Pac.  565,  40  Mont.  256. 
Digest   1-52  L.R.A.(N.S.) 


Authority  to   establish. 

Provision  for  reclamation  of  land  as  exer- 
cise of  police  power,  see  Constitution- 
al Law,  642. 

4.  Pending  proceedings  for  a  drainage 
improvement  need  not  be  expressly  legalized 
in  order  to  permit  their  completion,  by  a 
statute  enacted  to  provide  for  notice  to  per- 
sons liable  to  assessment,  for  want  of  which 
the  statute  has  been  held  unconstitutional; 
it  is  sufficient  if  the  statute  assumes  that 
the  pending  proceedings  will  continue,  and 
would  be  idle  and  meaningless  unless  that 
intention  was  imputed  to  the  legislature. 
Ross  V.  Wright  County,  1:  431,  104  N.  W. 
506,  128  Iowa,  427. 

5.  Authority  to  continue  existing  pro- 
ceedings for  the  construction  of  a  drainage 
ditch,  which  have  been  declared  void  because 
of  the  invalidity  of  the  statute  under  which 
they  were  instituted,  for  failure  to  provide 
for  notice  to  owners  of  land  not  touched 
by  the  improvement,  but  which  may  be  as- 
sessed for  the  cost,  may  be  conferred  by  a 
statute  correcting  this  defect  by  providing 
such  notice,  in  the  absence  of  any  constitu- 
tional prohibition  of  retroactive  laws.  Ross 
v.  Wright  County,  i:  431,  104  N.  W.  506,  12S 
Iowa,  427.  (Annotated) 

6.  A  city  of  the  second  class  in  Kansas 
has  control  of  the  alleys  within  its  limits,^ 
and  has  the  right  to  construct  sewers  there- 
in. Cherry  vale  v.  Studyvin,  11:  385,  91  Pac. 
60,   76   Kan.  285. 

7.  The  jurisdiction  of  a  county  board 
of  drain  commissioners  to  order  the  con- 
struction of  a  drainage  ditch,  acquired  in 
conformity  with  N.  D.  Rev.  Code  1905,  § 
1821,  by  the  filing  of  a  petition  therefor 
signed  by  the  requisite  number  of  freehold- 
ers, cannot  be  devested  by  the  action  ot  the 
petitioners  in  withdrawing  their  names  from 
the  petition  after  the  board  has  taken  ac- 
tion thereunder.  Sim  v.  Rosholt,  11:372, 
112  N.  W.  50,  16  N.  D.  77.  (Annotated) 

II.  Procedure. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Remonstrance  against  improvement,  see 
Appeal  and  Error  115;  Public  Im- 
provements, 14. 

8.  Proceedings  for  the  construction  of  a 
drainage  ditch  cannot  be  avoided  by  prop- 
erty owners  properly  served  with  notice  be- 
cause one  owner  of  property  affected  was 
not  served, — at  least,  where  he  subsequently 
appears,  and  presents  and  establishes  his 
claim  for  damages  by  reason  of  the  improve- 
ment. Ross  V.  Wright  County,  i:  431,  104 
N.  W.  506,  128  Iowa,  427. 

///.  Assessments. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Delegation  of  power  as  to,  see  CoNSTITU-^ 
TiONAL  Law,  123. 


DRAMA— DROP    HAMJVIER. 


959 


Due  process  of  law  in  assessments  for,  see 
Con sTiTUTiONAL  Law,  413. 

Police  power  as  to,  see  Constitutional 
Law,  642,  642a. 

Statute  providing  for  front  foot  assessment, 
see  Constitutional  Law,  642a. 

Measure  of  damages  where  contractor  has 
been  delayed  in  collection  of  amount 
due  him  on  contract,  see  Damages,  103. 

Estoppel  to  object  to  assessment,  see  Estop- 
pel, 128. 

Right  of  holder  of  sewer  warrant  to  penalty 
collected  thereon,  see  Penalty,  4. 

Assessment  on  railroad  for,  see  Public  Im- 
provements, r)2. 

Apportionment  of  assessments  for,  see  Pub- 
lic Improvements,  66. 

Enforcement  of  assessments  for,  see  Public 
Improvements,  79. 

Construction  of  statute  as  to,  so  as  to  sus- 
tain validity,  see  Statutes,  227. 

Liability  of  township  trustees  failing  to 
collect  assessments  to  pay  contractor, 
see  Towns,  15. 

9.  Failure  to  object  to  an  assessment 
by  an  interested  person,  of  benefits  from  the 
improvement  of  a  drainage  ditch  before  its 
confirmation  by  the  court,  waives  the  ob- 
jection. Comrs.  of  Union  Drainage  Dist. 
JSo.  1  T.  Smith,  i6:  292,  84  N.  E.  376,  233 
111.  417. 

10.  Land  from  which  surface  water  is 
drained  into  a  natural  water  course  there- 
on, thereby  increasing  the  volume  and  ac- 
celerating the  flow  thereof,  is  not  subject 
to  assessment  for  the  cost  of  a  ditch  or  an 
improvement  that  will  not  benefit  its  drain- 
age, but  is  constructed  to  prevent  overflow 
from  the  water  course,  or  to  benefit  the 
drainage  of  servient  lands.  Mason  v.  Ful- 
ton County  Comrs.  24:  903,  88  N.  E.  401, 
80  Ohio  St.   151. 


DRAMA. 

Conflict  of  laws  as  to  rights  in,  see  Con- 
flict OF  Laws,  108. 

Common  law  right  of  author  of,  see  Liter- 
ary AND  Artistic  Propisity,  3. 

Copyright  of,  see  Copyright,  6,  23. 


DRAMATIZATION. 

Of  copyrighted  story,  see  Copyright,  9,  12, 
21. 


DRAM   SHOP. 


Incorporated  social  club  as,  see  Intoxicat- 
ing Liquors,  127. 
Digest   1-52  L.R.A.(N.S.) 


DRA^VBRIDGE. 

Removal  of  building  interfering  with  opera- 
tion of,  see  Estoppel,  12;  Waters,  106, 
109. 

Liability  of  city  for  negligence  in  operation 
of,  see  Municipal  Corporations,  435, 
436. 

See  also  Bridges,  22,  23.  , 


DRAYMEN. 


As  common  carriers,  see  Carriers,  10. 
Discrimination     between,     by     carr"or.     see 

Carriers,    1007-1013. 
Municipal    regulation    of,    see    Municipal 

Corporations,  177. 


DREDGE. 

Situs  of  sea-going  steam  dredge  for  purpose 
of  taxation,  see  Taxes,  149. 


DREDGING. 

Injury  to  oysters  by,  see  Fisheries,  18. 


DRESS  GOODS. 

As  baggage,  see  Cabrle31S,  704. 

■ ^•» ■ 


DRINKING. 

A~B  nuisance,  see  Nuisances,  48. 


DRINKING  FOUNTAINS. 

Free  water  supply  for,  see  Waters,  360-362. 
♦-»♦ 

DRIVER. 

Who  is  responsible  for  negligence  of  driver 
of  hired  horse  or  veh^le,  see  Master 
AND  Servant,  42-52. 

Imputing  negligence  of,  to  passenger,  see 
Negligence,  257,  258,  260-271. 


DROP  HAMMER. 


Duty  to  warn  employee  of  danger  in  using, 
see  Master  and  Servant,  218. 

Operation  of,  as  nuisance,  see  Nuisances, 
23,  1.56. 


0(iO 


DROVER— DRUGS    AND    DRUGOISTS. 


DROVER. 

Liability  of  insurance  company  for  injury 
to,  while  riding  in  caboose  attached  to 
freight  train,  see  Insubaxce,  721^ 


DROVTNING. 


Of  insured  person,  see  Evidence,  2080;  In- 
surance,  724,   726,   751. 
Of  person  caused  by  log  jam  in  stream,  see 

Loos  AND  LOGOING,  5. 

Municipal  liability  for,  see  Municipal  Cob- 

POUATIONS,  339-344. 
Of  cliild,  liability  for,  generally,  see  Nexsli- 

gence,  168,   170,   172-175. 


DRUGS  AND  DRUGGISTS. 

Refusal  of  state  board  of  pharmacy  to  grant 
certificate  to  druggist,  see  Boards,  1. 

Regulations  as  to  adulteration  of  food  and 
drugs  gis  interference  with  commerce, 
see  Commerce,  105-110. 

Vested  right  to  continue  in  pharmacy  busi- 
ness, see  Constitutional  Law,  64. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  285,  286. 

Due  process  in  statute  regulating  sale  of 
poisons  by,  see  Cox\stitutxonal  Law, 
503. 

Police  power  as  to,  see  Constitutional 
Law,  712,  713. 

Requiring  druggist  to  procure  license,  see 
Constitutional  Law,  712,  713;  Li- 
cense, 64. 

Reasonableness  of  fee  for  license  to  do  busi- 
ness, see  License,  122. 

^Mandamus  to  compel  grant  of  druggists' 
license,  see  Mandamus.  29. 

Validity  of  sale  in  bulk  of  stock  of  drugs, 
see  Contracts,  412. 

Validity  of  contract  tor  sale  of  drug  store 
conducted  in  violation  of  law,  see  Con- 
tracts, 413. 

By-law  against  use  of  drugs  by  member  of 
benevolent  society,  see  Insurance,  103. 

Qualified  privilege  of  druggist  in  making 
statements  to  physician  concerning 
character  of  ofiice  attendant,  see  Libel 
AND  Slander,  95. 

Proximate  cause  of  injury  or  death  from 
drusis,  see  Proximate  Cat  se,  XI. 

Ambiguity  in  statute  regulating  sale  of  poi- 
sons by,  see  Statutes,  40. 

.','-:   id.-  •:.  ,: 

Crim*nal  liability.        ■■\:*'i\h::ui    ■j.kIu.iuk 

Compelling  druggist  indicted' for  illegal  sale 
of  liquor  to  produce  prescriptions  of 
physicians  on  which  sales  were  made, 
see  Criminal  Law,  115.  116. 

Statute  regulating  sale  of  liquors  by  phar- 
macists, see  Intoxicating  Liquors,  62. 

Unlawful  sale  of  liquor  by  druggist,  general- 
ly, see  Intoxicating  LiQUoa.s,  IIT.  d. 

Evidence  in  prosecution  for  wrongful  sale 
of  drugs,  see  Evidence,  1190,  1225. 

Digest   1-52  L.R.A.(N.S.) 


Evidence  in  action  against  druggist  for  neg- 
ligence in  sale  of  wood  alcoliol,  see  Evi- 
dence, 1343. 

Sufliciency  of  indictment  for  illegal  sale  of 
drugs,  see  Indictment,  Information 
and  Complaint,  35. 

Impeachment  of  witness  in  prosecution  for 
illegal  sale,  see  Witnesses,  141. 

1.  A  sale  of  cocaine  by  a  duly  licensed 
physician  without  a  written  prescription 
violates  a  statute  making  it  unlawful  for 
any  person  to  sell  cocaine  except  upon  a 
written  prescription  of  a  duly  licensed  phy- 
sician. Niswonger  v.  State,  46:  i,  102  N. 
E.  135,  179  Ind.  653.  (Annotated) 
Civil  liabiUty. 

Prejudicial  error  in  admission  of  evidence 
in  action  against,  for  negligence,  see 
Appeal  and  Error,  1096. 

Action  against  druggist,  for  death  of  per- 
son in  other  state,  see  Conflict  of 
Laws,  95. 

Sufliciency  of  evidence  to  show  negligence 
of,  see  Evidence,  2118. 

Wife's  right  of  action  for  sale  of  drug  to 
husband,  see  Husband  and  Wife,  182, 
183. 

Negligence  of  druggist  as  question  for  jury, 
see  Trial,  558. 

2.  The  ordinary  care  which  a  druggi.st 
is  bound  to  exercise  in  the  filling  of  pre- 
scriptions is  the  highest  possible  degree  of 
prudence,  tlioughtfulness,  and  diligence, 
and  the  employment  of  the  most  exact  and 
reliable  safeguards  consistent  with  the  rea- 
sonable conduct  of  the  business,  in  order 
that  human  life  may  not  be  exposed  to, 
the  danger  following  from  the  substitu- 
tion of  deadly  poisons  for  harmless  medi- 
cines. Tremblay  v.  Kimball,  29:  900,  77 
Atl.  405,  107  Me.  53.  (Annotated) 

3.  A  druggist,  in  the  filling  of  prescrip- 
tions, must  exercise  the  highest  practicable 
degree  of  prudence,  tlioughtfulness,  and  vigi-i' 
lance,  and  the  most  exact  and  reliable  safe- 
guards, consistent  with  the  reasonable  con- 
duct of  the  business.  Tombari  v.  Connors, 
39:  274,  82  Atl.  640,  85  Conn.  231. 

4.  A  druggist  who  reads  the  name  of  a 
drug  called  for  by  an  illegible  Latin  pre- 
scription, as  one  which  he  knows  in  the 
quantity  specified  is  likely  to  do  great  harm, 
is  bound  to  take  reasonable  precautions  to 
ascertain  that  his  reading  is  right.  Tom- 
bari V.  Connors,  39:  274,  82  Atl.  640,  85 
Conn.  231. 

5.  A  druggist  is  not  relieved  from  lia- 
bility for  injuries  caused  by  the  negligence 
of  his  clerk  in  compounding  a  prescription 
by  the  fact  that  the  clerk  is  a  licensed  phar- 
macist. Tombari  v.  Connors,  39:  274,  82 
Atl.  640,  85  Conn.  231.     •  (Annotated) 

6.  A  druggist  may  be  found  negligent 
in  selling  a  patent  medicine  bought  in  the 
market,  as  a  harmless  preparation  put  up 
by  himself,  when  it  consists  of  a  dangerous 
poison,  if  his  only  knowledge  as  to  its  con- 
tents was  a  statement  by  the  manufacturer 
that  it  was  similar  to  a  well-known  article, 
the    contents    of    which    he    was    ignorant. 


DRUMMERS— DRUNKENNESS. 


961 


VVillson  V.  Faxon,  Williams,  &  Faxon,  47: 
693,  101  N.  E.  799,  208  N.  Y.  108. 

( Annotated ) 

7.  A  druggist  who  holds  himself  out  as 
the  actual  manufacturer  of  a  patent  medi- 
cine put  up  by  a  wholesaler  with  the  retail- 
er's name  on  the  package  is  not  entitled  to 
the  benefit  of  an  exception  in  a  statute  mak- 
ing druggists  responsible  for  the  quality  of 
medicine  sold  by  them,  except  those  sold  in 
original  packages  of  the  manufacturer,  and 
those  articles  known  as  patent  or  propri- 
etary medicines.  Willson  v.  Faxon,  Wil- 
liams, &  Faxon,  47:  693,  101  N.  E.  799,  208 
N.  Y.  108. 

8.  A  druggist  is  not  relieved  of  a  stat- 
utory duty  to  label  wood  alcohol  as  poison- 
ous, by  the  fact  that  it  was  obtained  upon 
a  statement  that  it  was  to  be  used  as  a 
liniment,  although  the  purchaser  intended 
to  use  it  as  a  beverage,  and  did  so  use  it. 
Campbell  v.  Brown,  26:  1142,  106  Pac.  37, 
81  Kan.  480. 

9.  That  a  druggist  supposed  a  poison- 
ous liquid  sold  by  him  was  to  be  used  ex- 
ternally, and  not  as  a  beverage,  does  not 
relieve  him  of  the  statutory  duty  to  label 
the  bottle  poisonous,  where  the  statute  does 
not  except  from  its  operation  sales  of 
poison  to  be  used  externally.  Campbell  v. 
Brown,  26:  1142,   106  Pac.  37,  81  Kan.  480. 

10.  The  unlawful  sale  of  a  poisonous 
drug  by  a  druggist  to  a  minor  eighteen  years 
of  age,  who  administered  a  quantity  of  it 
to  another  minor,  with  intent  to  perpetrate 
a  joke  upon  him,  which  act  resulted  in  the 
latter's  serious  illness,  does  not  create  a 
cause  of  action  in  favor  of  the  father  of 
such  minor  for  loss  of  his  son's  services  and 
the  expense  of  medicines  and  doctor's  bills, 
since  the  druggist  could  not  reasonably  have 
anticipated  that  such  use  would  be  made 
of  the  drug.  McKibbin  v.  Bax,  13:  646,  113 
N.  W.  158,  79  Neb.  577.  (Annotated) 
Contributory  negligence. 

11.  A  father  who  permits  without  in- 
quiry the  administration  of  medicine  which 
he  knew  differed  in  character,  in  dose,  and 
in  frequency  of  dose  from  that  which  the 
attending  physician  said  he  had  prescribed, 
to  a  child  but  three  months  old,  who  is 
dangerously  ill,  is,  as  matter  of  law,  guilty 
of  contributory  negligence  barring  recovery 
for  the  death  of  the  child  resulting  from 
the  negligent  act  of  a  druggist  in  furnish- 
ing medicine  other  than  that  called  for 
by  the  prescription.  Scherer  v.  Schlaberg, 
24:  520,  122  N.  W.  1000,  18  N.  D.  421. 


DRUMMKaS. 


Interstate  business  by,  see  Commerce,  IV. 
c. 

Forbidding  drumming  at  railroad  stations, 
see  Constitutional  Law,  688 ;  Munici- 
pal Corporations,  181-185. 

Burden  of  proving  authority  of,  see  Evi- 
dence, 174. 

In  general,  see  Commercial  Tbavelesrs 

Digest  1-52  L.R.A.(N.S.) 


DRUNK. 

Opinion  evidence  as  to,  see  Evidence,  VII. 
d. 


DRUNKARDS. 


See  Drunkenness. 


DRUNKENNESS. 


61 


Canceling  deed  made  in,  see  Accounting,  4. 

Validity  of  note  Tby  intoxicated  person,  see 
Bills  and  Notes,  13-16,  151. 

Relief  from  contract  entered  into  during, 
see  Contracts,  757,  758. 

Rescission  of  sale  because  of,  see  Equity, 
61,  62. 

Sufficiency  of  evidence  to  show  incapacity  of 
person  to  contract  because  of,  see  Evi- 
dence, 2222. 

Evidence  of,  as  defense  to  action  on  check, 
see  Evidence,  2453. 

Assignment  of  insurance  policy  by  one 
whose  mental  faculties  are  impaired 
through  use  of  liquor,  see  Insurance, 
452. 

Annulment  of  marriage  entered  into  while 
intoxicated,  see  Marriage,  42. 

As  affecting  criminal  responsibility,  see  Ap- 
peal AND  Error,  863;  Criminal  Law, 
34,  35,  37-42;  Homicide,  104;  Trial, 
914. 

Rape  of  intoxicated  woman,  see  Appeal 
AND  Error,  1422. 

Of  person  provoking  assault,  see  Assault 
AND  Battery,  45. 

Ejection  of  drunken  passenger,  see  Carriers, 
223,  224,  404. 

Carrier's  duty  to  intoxicated  passenger,  see 
Carriers,  463-469. 

Acceptance  by  carrier  of  drunken  person  as 
passenger,  as  negligence,  see  Carriers^ 
236. 

Refusal  to  receive  drunken  person  as  pas- 
senger, see  Carriers,  473. 

Exclusion  of  intoxicated  person  from  rail- 
way depot,  and  warerooms,  see  Car- 
riers, 1002,  1013. 

Compulsory  treatment  of  inebriates,  see 
Constitutional  Law,   356. 

In  court  room  as  contempt,  see  Contempt, 
3. 

Maliciously  charging  one  with  being  habitu- 
al drunkard,  see  Damages,  42;  Evi- 
dence, 244;  Trial,  1031. 

Effect  of  intoxication  of  injured  person  on 
damages,  see  Damages,  377. 

As  mitigating  damages  for  slander,  see 
Damages,  720. 

As  ground  for  divorce,  see  Divobce  and 
Sepauation,  II.  c. 

False  charge  of,  as  ground  for  divorce,  see 
Divorce  and  Separation,  30. 

Burden  of  showing  how  much  of  damage 
was  due  to  negligence  and  how  much 
to  intoxication  of  injured  person,  see 
Evidence,  325. 


0U2 


DRY  TRUST— DURESS. 


Effect  of,  on  admissibility  in  evidence  of 
confession,  see  Evidence,  1211. 

Opinion  evidence  as  to  intoxication,  see  Evi- 
dence, VII.  d. 

Evidence  as  to,  generally,  see  Evidence, 
1542,  1543,  1559,  1852. 

Evidence  as  to,  generally,  see  Evidence, 
1549. 

Relevancy  of  evidence  on  issue  of  contribu- 
tory negligence,  see  Evidence,  17'J4. 

SuflSciency  of  proof  of,  see  Evidence,  2238, 
2239. 

Proof  of,  beyond  reasonable  doubt  in  prose- 
cution for  homicide,  see  Evidence, 
2355. 

Liability  for  injury  resulting  from  fright 
caused  by  assault  by  intoxicated  person, 
see  Fright,  11. 

Of  person  injured  by  defective  street,  see 
Highways,  3G9. 

Guardianship  of  habitual  drunkard,  see  In- 
co.upetk.st  Feksons,  9,  40. 

Effect  of,  on  insurance,  see  Insurance,  349- 
352,  805,  806. 

Liability  of  city  for  negligence  towards  in- 
toxicated prisoner,  see  Municipal  Gob- 
PORATIONS,  385. 

As  nuisance,  see  Nuisances,  48. 

Removal  of  officer  because  of,  see  Officers, 
5ti. 

As  ground  for  termination  of  agency,  see 
Fri.\cipajl  and  Agent,  15. 

As  proximate  cause  of  injury  to  passenger, 
see  Proximate  Cause,  89. 

Assault  with  intent  to  rape  intoxicated 
woman,  see  Rape. 

Suspension  of  pupil  from  school  because  of, 
see  Schools,  19. 

Injury  to  intoxicated  person  on  street  car 
track,  see  Street  Railways,  10,  45, 
75.  76,  79. 

Setting  aside  percentage  of  liquor  license 
fees  for  purpose  of  establishing  hospi- 
tal for  inebriates,  see  Taxes,  120. 

Direction  by  court  to  jury  as  to  intoxica- 
tion of  insured,  see  Trial,  772. 

Cross-examination  of  witness  as  to,  to  dis- 
credit him,  see  Witnesses,  99,  109. 

1.  To  render  a  transaction  voidable  on 
account  of  tlie  drunkenness  of  a  party  to  it, 
the  drunkenness  must  have  been  such  as  to 
drown  reason,  memory,  and  judgment,  and 
to  impair  the  mental  faculties  to  such  an 
extent  as  to  render  the  party  non  compos 
mentis  for  the  time  being.  Martin  v.  Harsli, 
13:  1000,  83  N.  E.  164.  231  111.  .384. 

2.  A  town  ordinance  which  prohibits 
drunkenness  in  the  streets,  alleys,  and  pub- 
lic places  of  the  town,  and  within  sight  of 
such  places,  prescribes  no  rule  of  sobriety 
to  be  observed  by  persons  within  their  own 
doors,  or  by  their  guests,  so  situated. 
Stoehr  v.  Payne,  44:  604,  61  So.  206,  132 
La.  213. 


DRY  TRUET. 


Right  to  vote  stock  of  corporation  as,  see 

Corporations,  379. 
In  general,  see  Trusts,  28. 
Digest  1-52  L.R.A.(N.S.) 


DUE  BILL. 

Evidence  in  suit  upon,  see  Evidence,  918, 
1995. 


^  * » 


DUE  PROCESS  OF  LAW. 

See  Constitutional  Law,  II.  b. 

♦  * » 

DUES. 

Of  members  of  social  clubs,  see  Clubs,  3,  4. 
Of  member-  of  benefit  association,   see  In- 
surance, III.  h. 


DUMMY  DIRECTORS. 

Validity  of  contract  as  to,  see  Contracts, 
503. 


DUMP. 

Negligence  in  maintenance  of  city  dump, 
see  Municipal  Corporations,  331. 

Injury  to  child  by  hot  ashes  on  ash  dump, 
see  Negligence,  142. 


DUPLICITY. 


In   indictment  or  information,   see  Indict- 
ment, ETC.,  II.  d. 
In  pleading,  see  Pleading,  I.  v. 


DURATION. 


Of  contract  with  city,  see  Municipal  Cob- 
POBATIONS,  247. 


DURESS. 

Recovery  back  of  payments  made  under,  see 
Assumpsit,  48,  49,  63,  64. 

Refusal  to  enforce  contract  of  other  state 
for,  see  Conflict  of  Laws,  28. 

Ratification  of  contract  obtained  by,  see 
Contracts,  559,  560. 

Aid  of  court  in  setting  aside  instrument  ob- 
tained by,  see  Contracts,  619. 

Setting  aside  deed  because  of,  see  Con- 
tracts, 770. 

Estoppel  to  set  up,  see  Estoppel,  68,  227. 

Burden   of  proving,  see  Evidence,   103. 

Presumption  as  to,  see  Evidence,  292. 

Evidence  as  to  generally,  see  Evidence, 
XI.  e. 

Sufficiency  of  evidence  of,  to  justify  cancel- 
ation of  instrument,  see  Evidence,  2276. 


DURESS. 


965r 


In  obtaining  conveyance  from  wife,  see  Hus- 
band AND  Wife,  ]03;  Limitation  of 
Actions,  29;  Trial,  312. 

As   ground    for   relief    from   judgment,    see 

JUDGMfJNT,   342. 

Validation  of  marriage  void  because  of,  see 

Marriage,  23. 
Annulment  of  marriage  for,  see  Mabkiage, 

20,  37-41. 
Resignation  procured  by,  see  Officers,  50. 
WJiat  constitutes  payment  by  surety  under 

compulsion,  see  Principal  and  Surety, 

72. 

1.  Refusal  to  pay  money  anmitted  to 
be  due,  except  upon  receiving  a  certain  kind 
of  receipt,  does  not  constitute  such  duress 
as  to  render  the  receipt-  void.  Earle  v. 
Berry,  i:  867,  61  Atl.  671,  27  R.  I.  221. 

(Annotated) 

2.  The  act  of  a  friend  to  whom  the 
ahseiit  maker  of  a  note  has  telegraplied  to 
get  un  extension  from  the  bank  upon  its 
naturity,  in  representing  to  the  maker's 
wife  in  order  to  induce  her  to  become  surety 
on  the  note,  which  is  necessary  to  secure 
the  extension,  that  unless  she  so  did  it 
would  result  in  injury  and  loss  to  the  hus- 
band, is  not  such  duress  as  will  avoid  her 
contract  in  case  she  becomes  a  surety, 
liiitcd  States  Banking  Co.  v.  Veale,  37:  540, 
114  Pac.  229,  84  Kan.  385. 

3.  The  payment  of  taxes'  illegally  as- 
sessed by  a  levee  district,  which  could  have 
been  collected  only  by  suit  in  which  any  de- 
fense of  iilogality  might  have  been  made,  is 
not  under  duress  so  thai  the  money  can  be 
recovered,  although  the  payment  was  under 
protest,  and  was  made  to  avoid  the  heavy 
statutory  penalty  for  nonpayment,  and  the 
maturing  of  mortgages  on  the  land  which 
by  their  terms  would  immediately  become 
due  for  failure  to  pay  taxes  regularly  as- 
sessed on  the  property.  Brunson  v.  Board 
of  Directors,  44:  293,  153  S.  W.  828,  24  Ark. 
107. 

Rati  "cation  of  note  secnred  by. 

4.  A  note,  the  execution  of  which  is 
secured  by  duress,  is  ratified  by  the  making 
of  voluntary  payments  thereon  after  the 
duress  is  removed,  so  as  to  destroy  the 
right  to  have  it  set  aside.  Bushnell  v. 
Looniis,  36:  1029,  137  S.  W.  257,  234  Mo. 
371. 

Threats. 

5.  Ordinarily  it  is  not  duress  to  bring 
or  threaten  to  bring  an  action  to  enforce  a 
valid  obligation,  nor  to  do  that  which  a 
party  has  a  legal  right  to  do.  United 
States  Banking  Co.  v.  Veale,  37:  540,  114 
Pac.  229,  84  Kan.  385. 

6.  A  contract  to  pool  tobacco  may  be 
found  to  have  been  executed  under  duress, 
so  as  to  constitute  a  defense  to  a  prosecu- 
tion for  selling  pooled  tobacco  contrary  to 
a  statute,  from  the  facts  that  depredations 
had  been  committed  upon  the  persons  and 
property  of  those  who  failed  to  pool  by 
night  riders,  and  that,  accused  had  been 
warned  that  it  would  be  best  for  him  to 
pool.  Com.  V.  Refntt,  42:  329,  148  S.  W.  48, 
149  Ky.  300. 

Digest  1-52  I..R.A.(N.S.) 


7.  A  special  written  contract  limiting 
a  carrier's  common-law  liability  which  has 
been  extorted  from  a  shipper  who  rightfully 
declined  to  sign  it,  by  means  of  a  refusal 
to  transport  cattle  already  in  the  carrier's 
possession,  unless  such  a  contract  was 
signed,  is  voidable  at  the  shipper's  election. 
St.  Louis  &  S.  F.  R.  Co.  v.  Gorman,  28:  637, 
100  Pac.   647,  79  Kan.  643.  (Annotated) 

—  Of  crimin-l  prcsecntion  of  self. 

8.  A  note  and  deed  executed  by  an 
employee  to  avoid  arrest  threatened  by 
his  employer  and  the  employer's  attorney, 
who  charged  him  with  embezzlement,  are 
void  for  duress  if  no  embezzlement  in  fact 
existed.  Kronmeyer  v.  Buck,  45:  1182,  101 
N.  E.  935,  258  111.  586. 

—  Of  prosecution  of  third  person. 
Instructions  in  action  to  set  aside  mortgage 

for,  see  Trial,  885. 

9.  A  note  executed  by  a  woman  to  save 
lier  brother  from  threatened  imprisonment 
on  a  charge  of  embezzlement  is  void  for 
duress.  Kronmeyer  v.  Buck,  45:  1182,  101 
N.  E.  935,  258  111.  586. 

10.  A  transfer  of  stock  cannot  be  set 
aside  for  duress,  because  of  a  threat  to 
imprison  the  son  of  the  transferrer,  who 
made  the  contract  for  the  transfer,  if  it 
was  not  carried  out.  Sulzner  v.  Cappeau- 
Lemley  &  Miller  Co.  39:  421,  83  Atl.  103, 
234  Pa.  162. 

11.  A  married  woman  who  involuntarily 
mortgages  her  separate  estate  or  homestead 
to  secure  an  individual  indebtedness  of  her 
husband  may  have  the  lien  canceled  in  a  suit 
to  foreclose  the  mortgage,  where  she  was 
induced  to  execute  it  by  the  mortgagee's 
threats  to  imprison  her  husband  for  feloni- 
ously disposing  of  mortgaged  chattels. 
Hoelhvarth  v.  McCarthy,  43:1005,  140  N. 
W.  141,  93  Neb.  246. 

12.  A  court  of  equity  will  not  refuse  to 
set  aside  a  conveyance  of  land,  made  by  a 
married  woman,  under  the  duress  of 
threats,  in  order  to  save  her  husband  from 
criminal  prosecution  for  embezzlement,  on 
the  ground  that  the  conveyance  is  an  exe- 
cuted contract,  since  the  parties  do  not 
stand  in  pari  delicto.  Burton  v.  McMillan, 
8:  991,  42  So.  849,  52  Fla.  469. 

13.  In  a  suit  by  a  married  woman  to 
set  aside  a  deed  of  her  separate  property, 
made  by  her  under  express  rr  implied 
threats  of  the  prosecution  of  her  husband 
for  the  crime  of  embezzlement,  and  to  save 
him  from  such  prosecution,  the  maxim  In 
pari  delicto  melior  est  conditio  defendentis 
does  not  apply,  whether  the  threatened 
prosecution  was  lawful  or  unlawful, — par- 
ticularly so  when  she  was  sick  and  nervous 
at  the  time  of  the  execution  of  the  deed,  and 
does  not  appear  to  have  had  abundant  op- 
portunity for  consideration  and  consulta- 
tion with  disinterested  advisers.  Burton 
V.  McMillan,  8:  991,  42  So.  849,  52  Fla.  409. 

14.  The  test,  in  determining  whether 
there  was  duress  in  securing  the  execution 
by  a  father  of  a  mortgage  to  secure  the 
payment  of  a  defalcation  of  his  son,  in  or- 
der to  prevent  his  prosecution  for  embezzle- 
ment, is  not  so  much  the  means  by  which  the 


964 


DUST— DYNAMITE. 


father  was  compelled  to  execute  the  mort- 
gage as  the  state  of  miud  induced  by  the 
means  employed, — the  fear  which  made  it 
impossible  for  him  to  exercise  his  own  free 
will,  Williamson-Halsell  Frazier  Co.  v. 
Ackermaii,  20:  484,  94  Pac.  807,  77  Kan.  502. 

15.  A  mortgage  which  a  father  is  co- 
erced into  executing  to  secure  the  payment 
of  a  defalcation  of  his  son  by  threats  of  his 
arrest  and  prosecution  for  embezzlement  if 
such  security  is  not  given  may  be  avoided 
on  the  ground  of  duress.  Williamson-Hal- 
sell Frazier  Co.  v.  Ackerman,  20:  484,  94 
Pac.  807,  77  Kan.  502.  (Annotated) 

16.  If  the  threats  of  the  arrest  and  pros- 
ecution, for  embezzlement,  of  a  son,  operated 
to  deprive  a  father  of  his  free  will,  and  to 
constrain  the  execution  of  a  mortgage  to  se- 
cure the  payment  of  a  defalcation  by  the 
son,  the  actual  guilt  or  innocence  of  the 
son  is  not  a  material  question  in  determin- 
ing whether  tiiere  was  duress.  Williamson- 
Halsell  Frazier  Co.  v.  Ackerman,  20:  484,  94 
Pac.  807,  77  Kan.  502. 


DUST. 

Right  to  recover  for,  in  condemnation  pro- 
ceedings, see  Eminent  Domain,  267. 

Power  of  municipality  with  respect  to  dust 
raised  by  operation  of  street  car,  see 
Municipal  Cokpobations,  130-134. 

Requiring  fruits  and  candies  exposed  for 
sale  to  be  protected  from,  see  Munici- 
pal Corporations,  193. 

As  nuisance,  see  Nuisances,  31,  37. 


DUTIES. 

As  to  smuggling,  see  Smugglino. 

Forfeiture  and  seizure. 

1.  The  word  "false"  in  the  act  of  Con- 
gress of  June  10,  1890,  chap.  407,  §  9  (26 
Stat,  at  L.  135,  U.  S.  Comp.  Stat.  1901,  p. 
1895),  which,  prescribes  punishment  by  for- 
feiture, fine,  and  imprisonment  for  the  use 
of  a  false  statement  in  making  an  entry  of 
imported  goods,  implies  wrong  or  cixlpable 
negligence,  and  signifies  knowingly  or  negli- 
gently untrue.  United  States  v.  Ninety- 
Nine  Diamonds,  2:  185,  139  Fed.  961.  72  C. 
C.  A.  9. 

2.  The  making  of  an  entry  of  imported 
merchandise  by  means  of  a  false  statement 
which  does  not  deprive  the  United  States  of 
any  lawful  duties  does  not  subject  the  one 
making  it  to  forfeiture  and  penalties  under 
the  act  of  Congress  of  June  10,  1890,  chap. 
407,  §  9  (26  Stat,  at  L.  135,  U.  S.  Comp. 
Stat.  1901,  p.  1895),  providing  that  "if  any 
owner  .  .  .  shall  m-.ke  .  .  .  any 
entry  of  imported  merchandise  by  means  of 
any  false  invoice,  affidavit,  letter,  paper,  or 
.  .  .  false  statement  ...  or  shall 
be  guilty  of  any  wilful  act  or  omission  by 
means  whereof  the  United  States  shall  be 
deprived  of  the  lawful  duties  .  .  .  ac- 
Digest   1-52  L.R.A.(N.S.) 


cruing  upon  the  merchandise  .  .  .  em- 
braced or  referred  to  in  such  invoice,  affi- 
davit, letter,  paper,  or  statement,  or  affected 
by  such  act  or  omission,"  sueli  mercliandise 
shall  be  forfeited  and  specified  penalties  in- 
liicted.  United  States  v.  Ninety-Nine  Dia- 
monds, 2:  185,  139  Fed.  961,  72  C.  C.  A.  9. 

( Annotated ) 
3.  A  statement  that  he  is  the  owner, 
made  in  good  faith  in  making  an  entry  of 
imported  merchandise  for  duties  by  one  to 
whom  it  was  invoiced,  and  who  had  the 
right  of  possession  of,  and  a  lien  upon,  the 
same  for  the  duties  and  expenses  which  he 
had  paid,  [together  with  the  option  to  pur- 
chase any  of  it  at  fixed  prices  or  return  it 
to  the  tentative  vendors,  does  not  constitute 
an  olTense  under. the  act  of  Congress  of  June 
10,  1890,  chap.  407,  §  9  (26  Stat,  at  L.  135, 
U.  S.  Comp.  Stat.  1901,  p.  1895),  where  the 
government  is  not  thereby  deprived  of  any 
lawful  duties.  United  States  v.  Ninety- 
Nine  Diamonds,  2;  185,  139  Fed.  961,  72  C. 
C.  A.  9. 


DUTY. 

Presumption  of  performance  of,  see  Evi- 
dence, 417,  683. 

Privileged  character  of  communications  in 
course  of,  see  Libel  and  Slander,  Jl. 
e,  3. 


D"WELL.ING. 


What  constitutes,  within   meaning  of  laws 

as  to  arson,  see  Arson,  4. 
Homicide  in  defense  of,  see  Homicide,  78- 

82. 
Erection  on  property  of  pole  by  means  of 

which  access  is  obtained  by  burglar  to 

house  of  neighbor,  see  Negligence,  95. 


DYE  WORKS. 


As  nuisance,  see  Municipal  Cokpobations, 
169,  170. 


DYING  DECLARATIONS. 

Departure  from  rule  as  to  admissibility  in 

civil  cases,  see  Courts,  303. 
Right  to  take  to  jury  room,  see  Tbial,  16. 
In  general,  see  Evidence,  X.  1. 


DYNAMITE. 


Use  of,  in  blasting,  see  Blasting. 
Presumption  that  explosion  of,  was  cause 
of  death,  see  Evidence,  329. 


EARNING  CAPACITY— EASEMENTS. 


965 


Sufficiency  of  evidence  in  action  for  death 

caused  by,  see  Evidence,  2125,  2126. 
Negligence  in  storing,  see  Explosions  and 

Explosives,  3. 
Injury    to    employee    by,    see    Masteb    and 

Servant,  187,  190,  276,  277,  865;  Trial, 

472,  529. 


Injury  to  child  through  explosion  of,  see 
Negligence,  146-150,  225,  226. 

Injunction  against  storing  in  certain  place, 
see  Nuisances,  52. 

Proximate  cause  of  injury  from  explosion  of, 
see  Proximate  Cause,  60,  62  65. 


E 


EARNING  CAPACITY. 

Evidence  as  to,   in  action   for  personal  in- 
juries, see  Evidence,  1713-1719. 


EARNINGS. 


Successive  actions  for,  see  Action  oe  Suit, 
97-101. 

Future  earnings,  see  Future  Earnings. 

Right  of  married  minor  to,  see  Husband 
AND  Wife,  1. 

Of  husband,  right  of  creditor  as  to,  see  Hus- 
band AND  Wife,  146. 

Tax  on,  see  Taxes,  46,  175. 


EARTHQUAKE. 


Insurance  against  loss  by,  see  Insurance, 
681-683,  685. 


EASEMENTS. 


J.  What  constitutes;  nature;  Tcind,  1, 
2. 
II.  Creation;  hotv  acquired,  3—68. 

a.  In  general;  hy  express  terms, 

3-6. 
h.  By  prescription,  7—32. 
c.  As  appurtenant;  by  necessity, 
33-68. 

III.  Extent  of  rights;  care  in  exercise 

of  rights,   69-79. 

IV.  Transfer;  severance,   80,   81. 
V.  How  lost,   82—97. 

In  public  alleys,  see  Alleys. 

Implied  reservation  of  burial  rights  in  land 

conveyed,  see  Cemetkries,  4. 
Quieting  title  to  ditch  across  another's  land, 

see  Cloud  on  Title,  21. 
Oral    agreement    to    submit    to    arbitration 

question  of  right  to  easement  of  way, 

see  Contracts,  263,  262. 
Creation  of,  by  oral  agreement  of  grantor 

as   to    building    restrictions,    see    Con- 
tracts, 267. 
validity  of  contract  for  exclusive  easement, 

see  Contracts,  540. 
Digest  1-52  L.R.A.(N.S.) 


Liability  for  costs  in  suit  to  restrain  use 
of  way  of  necessity,  see  Costs  and  Fees, 
15. 

Existence  of,  as  breach  of  covenant  of  war- 
ranty against  encumbrances,  see  Cove- 
nants AND  Conditions,   56-61,  64-()0. 

Effect  of  possession  adverse  to  covenantor  to 
extinguish  negative  easement  created  by 
covenant,  see  Covenants  and  Con- 
ditions, 115. 

Effect  of  existence  of,  on  amount  of  recovery 
in  eminent  domain,  see  Damages,  523. 

Grant  of  private  way  as  dedication,  see 
Dedication,  6. 

Perpetual  easement  for  railroad  right  of 
way  as  an  encumbrance,  see  Deeds,  42. 

Reservation  of,  in  deed,  see  Deeds,  54,  55. 

Right  of  owner  of  land  excluded  from  pos- 
session by  exercise  of  easement  to  main- 
tain ejectment,  see  Ejectment,  3. 

As  basis  of  ejectment,  see  Ejectment,  13. 

Injury  to,  as  a  taking  of  property,  see  Emi- 
nent Domain,  III.  b,  2. 

Condemnation  of  land  for  private  road,  see 
Eminent  Domain,  51,  63-66. 

For  private  railroad,  see  Eminent  Domain, 
88. 

Right  to  compensation  on  changing  private 
into  public  road,  see  Eminent  Domain, 
225. 

Estoppel  to  deny  that  right  of  way  is  an 
easement  merely,  see  Estoppel,  27,  107. 

Presumption  as  to  notice  of,  see  Evidence, 
191. 

Presumption  and  burden  of  proof  as  to  gen- 
erally, see  Evidence,  516. 

To  maintain  sewer  across  private  property, 
see  Evidence,  752. 

Of  public  in  highway,  see  Highways,  II. 

Injunction  against  interference  with,  see  In- 
junction, 178,  180,  200. 

Conclusiveness  as  to  right  to,  of  judgment 
in  action  of  trespass,  see  Judgment, 
169. 

Power  of  municipality  to  accept  grant  of 
easement  for  highway,  see  Mtjnicipal 
Corporations,  307. 

Notice  of,  see  Notice,  76-78. 

Licensee's  right  of  action  against  township 
for  nuisance  in  maintaining  open  ditch 
rendering  private  way  unsafe,  see  Nui- 
sances, 67. 

In  party  wall,  see  Party  Walls. 

Necessity  of  pleading  and  proof  in  suit  for 
injunction  to  protect  easement,  sea 
Pleading,  430. 


966 


EASEMENTS,  I— II.  b. 


Authority  of  son  to  repreaent  father  in  per- 
mitting municipality  to  construct  sewer 
on  property,  see  Principal  and  Agent, 
28. 

Rights  of  one  purchasing  land  subject  to, 
see  Vendok  and  Pukgiiaser,  106. 

In  waters,  generally,  bee  Waters. 

Acquiring  water  rights  by  prescription,  see 
Waters,  II.  k. 

For  highway;  extending  across  accretions 
to  water's  edge,  see  Waters,  112,  113, 

/.  What  constitutes;  nature;  Tcind. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  distinguished  from  license,  see  License, 
3,  4. 

1.  The  right  of  an  owner  of  an  estate  to 
erect  and  maintain,  or  to  cause  to  be  erected 
and  maintained,  a  line  of  telephone  poles 
over  the  estate  of  another,  for  the  benefit  of 
the  former,  is  an  easement.  Yeager  v.  Tun- 
ing, 19:  700,  80  N.  E.  657,  79  Ohio  St.  700. 
2.  An  easement,  and  not  a  fee,  is  ac- 
quired by  a  ditch  company  by  a  rule  of 
court  in  compliance  with  its  petition  for  a 
right  of  way  under  a  statute  pi-oviding 
that,  upon  the  entry  of  such  rule,  the  com- 
pany shall  become  seised  in  fee,  or  shall 
have  the  exclusive  right,  title,  and  posses- 
sion of  such  lands  described  in  the  rule  as 
required  to  be  taken.  Smith  Canal  or  Ditch 
Co.  V.  Colorado  Ice  &  Storage  Co.  3:  1148, 
82  Pac.  940,  34  Colo.  485. 

II.  Creation;  how  acquired. 

a.  In  general;  by  express  terms. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

How  rights  in,  lost,  see  infra,  V. 

3.  An  easement  can  be  created  only  by 
deed  or  by  prescription.  Yeager  v.  Tuning, 
19:  700,  86  N.  E.  657,  79  Ohio  St.  700. 

4.  No  right  of  way  can  exist  fcy  cus- 
tom in  favor  of  the  inhabitants  of  a  par- 
ticular locality.  Graham  v.  Walker,  2:983, 
61  Atl.  98,  78  Conn.  130. 

By    exception    or   reservation. 
Implied  reservation  of  easement,  see  infra, 

36,  41,  56,  58.  '     ■ 

See  also  infra,  40.  -■>    '■■■    ■ft>'>^^  'i' 

5.  The  acceptance  of  a  deed  reserving  a 
right  of  way  acrosF  the  granted  premises 
from  a  point  at  which  a  door  exists  in  the 
extension  of  a  party  wall  for  the  benefit  of 
an  adjoining  building  owned  by  the  grantor 
constitutes  a  consent  to  the  maintenance 
of  a  sufficient  opening  in  the  division  wall 
for  the  convenient  use  of  the  reserved  ease- 
ment. Reynolds  v.  Union  Sav.  Bank,  49: 
194,  136  N.  W.  529,  155  Iowa,  519. 

6.  A  statement  in  a  deed  poll  of  a  right 
of  way  to  a  railroad  company,  that  the  com- 
pany "is  to  make  me  a  good  and  sufficient 
crossing,"  does  not  create  an  easement  the 
Digest  1-52  L.R.A.(N.S.) 


obstruction  of  which  will  support  an  action 
of  tort  in  favor  of  successors  in  title  of  the 
grantor.  Childs  v.  Boston  &  M.  11.  Co. 
48:  378,  99  N.  E.  957,  213  Mass.  91. 

( Annotated ) 

&.  By  prescription. 

(See   also    same   heading   in   Digest   L.R.A. 
1-70.) 

Presumption  and  burden  of  proof  as  to,  see 

Evidence,  621-624. 
Correctness  of  form  of  decree  quieting  title 

to,  see  Judgment,  29. 
Party  wall  easement,  see  Party  Wall,  9, 

10. 
See  also  supra,  3, 

7.  There  can  be  no  public  right  of  way 
to  a  public  monument  or  object  acquired  by 
mere  user.  Attorney  General  v.  Antrobus, 
4  B.  R.  C.  868,  [19051  2  Ch.  188.  Also  Re- 
ported in  74  L.  J.  Ch.  N.  S.  599,  09  J.  P. 
141,  92  L.  T.  N.  S.  790,  21  Times  L.  R. 
471,  3  L.  G.  R.  1071. 

8.  The  general  public  cannot  acquire 
by  user  a  right  to  visit  a  public  monument 
or  other  object  of  interest  upon  private  prop- 
erty; and  a  trust  to  permit  access  for  that 
purpose  will  not  be  presumed  against  per- 
sons who  shew  a  clear  documentary  title. 
Attorney  General  v.  Antrobus,  4  B.  R.  C. 
808,  [1905]  2  Ch.  188.  Also  Reported  in  74 
L.  J.  Ch.  N.  S.  599,  69  J.  P.  141,  92  L.  T. 
N.  S.  790,  21  Times  L.  R.  471,  3  L.  J.  R. 
1071.  (Annotated) 

9.  A  prescriptive  right  of  way  cannot 
be  acquired  by  user  by  one  tenant  over  land 
in  the  occupation  of  another  tenant  of  the 
same  landlord,  either  at  common  law  or 
under  the  provision  of  the  English  prescrip- 
tion act  that  where  a  way  shall  have  been 
actually  enjoyed  by  any  person  claiming 
right  thereto  without  interruption  for  the 
full  period  of  forty  years  the  right  there- 
to shall  be  deemed  absolute  and  indefeasible, 
unless  it  shall  appear  that  the  same  was  en- 
joyed by  some  consent  or  agreement,  ex- 
pressly given  or  made  for  that  purpose,  by 
deed  or  writing,  since  in  order  to  acquire 
such  an  easement  the  enjoyment  must 
be  as  of  right  appurtenant  to  the  fee,  which 
cannot  be  the  case  where  the  same  person  is 
the  owner  of  both  the  dominant  and  the  ser- 
vient tenements.  Kilgour  v.  Gaddes,  4  B. 
R.  C.  987,  [1904]  1  K.  B.  457.  Also  Re- 
ported in  73  L.  J.  K.  B.  N.  S.  233,  52  Week. 
Rep.  438,  90  L.  T.  N.  S.  604,  20  Times  L.  R. 
240. 

10.  An  easement  by  prescription  can  be 
acquired  only  by  an  adverse  user  for  ten 
years,  and  the  commencement  of  the  time 
required  for  the  prescription  to  ripen  dates 
from  the  time  when  the  party  was  damaged 
or  had  a  cause  of  action  arising  from  the 
adverse  user.  Roe  v.  Howard  County, 
5:  831,  106  N.  W.  587,  75  Neb.  448. 

11.  Continued  use  of  a  joint  stairway 
and  drain  placed  on  the  boundary  line  be- 
tween two  parcels  of  land  will  not  ripen  into 
an    adverse    right    to    have    the    easement 


EASEMENTS,  II    b. 


907 


maintained.     Gaynor   v.   Bauer,   3:  1082,   39 
So.  749,  144  Ala.  448. 

12.  Open  and  continuous  use  without 
hindrance  or  complaint  for  more  than  twen- 
ty-five years  of  a  wall  on  adjoining  property 
as  a  party  wall  establisiies  an  easement  in 
it.  iMann  v.  Reigler,  18:  131,  111  S.  W.  300, 
33  Ky.  L.  Rep.  774.  (Annotated) 

13.  The  free  use  of  waters  of  mineral 
springs  by  the  guests  and  occupants  of  a 
hotel  situated  on  adjacent  lands  is  by  mere 
license,  and  is  not  such  an  adverse  use  as 
will  give  rise  to  an  easement  in  the  springs, 
where  there  has  constantly  been  a  surplus 
of  water  in  them  beyond  that  required  by 
the  owners,  and  the  use  relied  upon  is  a 
use  enjoyed  in  common  with  the  public. 
Jobling  V.  Tuttle,  9:  960,  89  Pac.  699,  75 
Kan.    351. 

14.  The  intervention  of  a  section  of  high- 
way between  a  parcel  of  land  to  which  a 
private  right  of  way  is  claimed  as  appurte- 
nant, and  the  land  over  which  it  is  claimed, 
will  not  prevent  the  acquisition  of  such 
right  by  prescription.  Graham  v.  Walker, 
2:  983,  61  Atl.  98,  78  Conn.  130.  (Annotated) 

15.  A  parol  grant  of  an  easement  which 
is  void  under  the  statute  of  frauds  may  be- 
come the  basis  for  an  adverse  possession 
which  will  ripen  into  title  by  lapse  of  time. 
Leehman  v.  Mills,  13:  990,  91  Pac.  11,  46 
Wash.  624.  (Annotated) 

16.  A  municipal  corporation  which  lays 
a  sewer  across  private  property  under  a  pa- 
rol agreement  for  such  right,  given  in  con- 
sideration of  its  abandonment  of  an  inten- 
tion to  open  a  highway  along  the  route,  and 
maintains  the  sewer  with  visible  house  con- 
nections, entering  upon  the  property  to  care 
for  it  when  necessary,  against  the  former 
owner  and  his  siccessors  in  title  for  more 
than  fifteen  years,  secures  a  prescriptive 
right  to  the  easement.  Alderman  v.  New 
Haven,  18:  74,  70  Atl.  626,  81  Conn.  137. 
As  to  railroads. 

Creation  by  reservation,  see  supra,  6. 
Extinguishment  of  easement,  see  infra,  88- 
90. 

17.  Long-continued  use  of  a  path  by  a 
property  owner  over  an  adjoining  railroad 
track  will  not  ripen  into  an  easement  by 
prescription  if  it  is  not  clearly  shown  to 
have  been  adverse,  since  it  will  not  be  pre- 
sumed from  a  mere  permissive  use  that 
tlie  railroad  company  had  made  a  grant 
of  such  right.  Louisville  &  N.  R.  Co.  v, 
Hagan,  35:  189,  131  S.  W,  1018,  141  Ky.  20.^ 

(Annotated) 

18.  The  unorganized  public  cannot,  by 
using  to  reach  a  hotel  on  the  opposite  side 
of  the  tracks  for  more  than  thirty  years,  a 
pass  way  maintained  by  a  railroad  company 
from  its  passenger  station  across  its  tracks 
to  its  freight  house,  obtain  a  prescriptive 
right  to  such  use.  Louisville  &  N.  R.  Co. 
v.  Childers  &  Only,  48:  903,  160  S.  W.  260, 
1.55  Ky.  652.  (Annotated) 
As  to  roadixray. 

Easements  appurtenant,  see  Easements,  33. 

19.  The  mere  use  of  a  footpath  over  an- 
other's property  openly,  notoriously,  and 
continuously  for  a  long  period  of  years  will 
Digest  1-52  L.R.A.(N.S.) 


not  establish  an  easement  therein,  if  it  was 
not  adverse  or  under  claim  of  right.  Barber 
V.  Bailey,  44:  98,  84  Atl.  608,  85  Vt.  219. 

20.  To  establish  an  easement  of  private 
way  over  land  by  prescription,  the  use  must 
be  continuous  and  uninterrupted  for  the 
necessary  period,  under  a  bona  fide  claim  of 
right,  a  Iverse  to  the  owner  of  the  land,  and 
with  his  knowledge  and  silence.  Crosier 
V.  Brown,  25:  174,  66  S,  E.  326,  66  W.  Va. 
273. 

21.  Title  to  an  easement  of  private  way 
over  land  does  not  come  by  prescription 
where  the  user  was  permissive  only  and 
without  intent  to  claim  adversely,  (.rosier 
v.  Brown,  25:  174,  60  S.  E.  326,  66  W.  Va. 
273. 

22.  Permissive  use  of  another's  land  for 
private  passage  by  one  intending  ultimate- 
ly to  claim  a  way  by  prescription  cannot  be- 
come a  right  where  pending  the  use  the 
landowner  has  protested  against  and  denied 
the  right  at  intervals.  Crosier  v.  Brown, 
25:  174,  66  S.  E.  326,  66  W.  Va.  273. 

(Annotated) 

23.  A  description  which  merely  states 
that  one  is  the  owner  of  a  right  of  way  as 
appurtenant  to  liis  land  over  adjoining  land 
of  another  passing  from  near  the  western 
line  of  the  former  tract  through  the  west- 
ern portion  of  the  latter  tract  to  a  public 
road,  a  distance  of  about  five  hundred  yards, 
is  insufficient  as  a  basis  for  the  decreeing 
of  a  way  by  prescription,  as  an  easement  of 
private  way  over  land  must  have  particular 
definite  termini  and  route.  Crosier  v.  Brown, 
25:  174,  66  S.  E.  326,  06  W.  Va.  273. 

24.  A  private  right  of  way  cannot  be  se- 
cured by  prescription  over  uninclosed  land. 
Schulenbarger  v.  Johnstone,  35:  941,  116 
Pac.  843,  64  Wash.  202. 

25.  The  leaving  of  gates  or  bars  when 
fencing  one's  land,  to  enable  a  neighbor  to 
cross  it,  does  not  indicate  an  intention  to 
surrender  the  way,  or  acquiesce  in  its  use 
by  the  neighbor  so  that  the  use  will  ripen 
into  a  right  by  prescription.  Schulenbar- 
ger V.  Johnstone,  35:  941,  116  Pac.  843,  64 
Wash.  202.  (Annotated) 

26.  User  under  claim  of  right  of  a  way 
acquired  under  a  parol  agreement  that  it 
shall  be  permanent  may  ripen  into  a  title 
by  prescription.  Schmidt  v.  Brown,  11:  457, 
80  N.  E.  1071,  226  III.  590. 

27.  A  way  extending  across  one's  farm 
beyond  his  house,  which  is  used  by  his 
neighbor  as  well  as  himself  for  access  to  a 
public  highway,  is  not  within  the  rule  that 
mere  permissive  use  of  a  private  way  oponed 
by  one  through  his  own  land  will  not  ripi-n 
into  right.  Schmidt  v.  Brown,  11:  457,  80 
N.  E.  1071,  226  111.  590. 

28.  The  exclusiveness  of  one's  user  of  a 
way  necessary  to  give  him  a  prescriptive 
title  is  not  destroyed  by  the  fact  that  it 
is  also  used  by  others.  Schmidt  v.  Brown. 
11:  457,  80  N.  E.  1071,  226  111.  590. 

As  to  Tiray  of  necessity. 

Presumption,    on   appeal,    as   to   finding   in 

regard  to,  see  Appeal  and  Error,  458. 
Presumption  and  burden  of  proof  as  to.  see 

Evidence,  624. 


968 


EASEMENTS,  II.  c 


29.  Use  of  a  way  of  necessity  will  not 
ripen  into  an  easement  by  prescription. 
Rater  v.  Shuttlefield,  44:  loi,  125  N.  W. 
235,  146  Iowa,  512.  (Annotated) 

30.  Express  assertion  of  the  right  is  not 
necessary  to  establish  a  prescriptive  right 
of  way,  if  the  use  is  of  a  character  to  indi- 
cate such  claim.  Barber  v.  Bailey,  44:  98, 
84  Atl.  608,  85  Vt.  219. 

31.  The  traversing  of  land  to  which  a 
private  right  of  way  of  necessity  is  claimed 
as  appurtenant  by  a  public  highway  will 
prevent  the  acquisition  of  such  right  by 
prescription.  Crosier  v.  Brown,  25:  174,  66 
S.   E.   326,   66   W.   Va.   273. 

As  to  bnrial  lot. 

32.  No  prescriptive  right  which  will  de- 
scend to  heirs  can  be  acquired  by  burying 
dead  bodies  in  private  grounds.  Wooldridge 
V.  Smith,  40:  752,  147  S.  W.  1019,  243  Mo. 
190.  (Annotated) 

o.  As  appurtenant;  by  necessity. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Loss  of,  by  nonuser,  see  infra,  92. 

Findings  as  to  use  of  way  prior  to  convey- 
ance of  land  to  which  it  is  claimed  to 
be  appurtenant,  see  Appeal  and  Ebrob, 
199. 

Passing  of  appurtenance  bv  deed,  see  Deeds, 
50-53. 

Estoppel  to  claim,  see  Estoppel,  31. 

Presumption  of  intention  to  grant,  see  Evi- 
dence, 227. 

Right  to  use  water  for  irrigation  purposes 
as,  see  Mortgage,  126. 

Notice  of,  see  Notice,  76-78. 

Finding  that  right  of  way  is  appurtenant 
to  land,  see  Trial,  1096. 

As  to  waters  generally,  see  Waters,  II. 

See  also  supra,  14. 

33.  That  a  road  over  one  portion  of  a 
tract  of  land  for  the  benefit  of  another 
portion  was  intended  by  the  owner  to  be 
only  temporary  will  not  prevent  a  right  to 
its  permanent  use  from  passing  with  the 
grant  of  the  latter  portion,  where,  at  the 
time  of  the  grant,  it  was  apparent,  with 
nothing  to  indicate  that  it  was  not  intended 
to  be  permanent.  Liquid  Carbonic  Co.  v. 
Wallace,  26:  327,  68  Atl.  1021,  219  Pa.  457. 

(Annotated) 

34.  The  easement  in  a  permanent  cement 
walk  which  has  been  constructed  by  a  prop- 
erty owner  along  the  edge  of  property 
which  he  has  subdivided  into  building  lots, 
to  furnish  access  from  such  lots  to  the 
street,  will,  upon  severance  of  the  property, 
pass  to  the  grantees  of  the  respective  por- 
tions thereof.  Rollo  v.  Nelson,  26:  315,  96 
Pac.  263,  34  Utah,  116.  (Annotated) 

35.  Where  one,  in  laying  out  building 
lots,  lays  out  a  driveway  in  front  thereof, 
and  adjoining  it,  inside  the  lot  lines,  con- 
structs a  cement  sidewalk,  his  conveyance 
of  the  lots  with  all  and  singular  the  ap- 
purtenances thereto  belonging  or  in  any 
wise  appertaining,  together  with  a  perpetual 
Digest  1-52  I<.R.A.(N.S.) 


right  of  way  along  the  driveway,  does  not, 
because  of  the  special  mention  of  the  drive- 
way, prevent  the  passing  of  an  easement  in 
the  walk.  Rolio  v.  Nelson,  26:  315,  96  Pac. 
263,  34  Utah,  116. 

36.  The  mere  exhibition  to  an  intend- 
ing purchaser  of  a  parcel  of  land,  of  a  sug- 
gested plat  which  has  not  been  tiled  for  rec- 
ord, which  shows  a  street  bordering  one  side 
of  such  parcel,  does  not  give  hira  an  ease- 
ment in  the  suggested  street  which  will 
compel  the  vendor  to  open  it,  if  his  grant 
bounds  the  purchase  on  a  street  located  on 
the  opposite  side  of  the  tract,  making  no 
mention  of  the  one  in  question.  Pyper  v. 
Whitman,  35:  938,  80  Atl.  6,  32  R.  1.  510. 

(Annotated) 

37.  A  ditch  constructed  by  the  landown- 
er to  relieve  a  portion  of  his  land  of  surplus 
water  and  convey  it  to  another  portion, 
where  it  is  valuable  for  irrigation  purposes, 
which  is  plainly  visible  upon  the  ground  at 
the  time  he  sells  the  latter  portion,  will 
pass,  together  with  the  water  flowing  there- 
in, under  the  words  "privileges  and  appur- 
tenances." in  the  deed.  Fayter  v.  North, 
6:  410,  83  Pac.  742,  30  Utah,  156. 

( Annotated ) 

38.  The  right  to  maintain  a  ladder  rack 
in  a  passageway  adjoining  a  building  011 
land  conveyed  by  metes  and  bounds  will 
not  be  held  to  have  passed  by  the  deed, 
where  the  deed  was  with  reference  to  a 
plan,  on  which  the  rack  was  not  shown, 
while  a  right  of  passage  through  the  way 
is  expressly  mentioned.  Sanford  v.  Boss, 
42:  629,  84  Atl.  936,  76  N.  H.  476. 

39.  A  conveyance  by  metes  and  bounds  of 
lands  customarily  used  as  a  paint  shop,  with 
knowledge  that  such  use  will  continue,  does 
not  include  a  right  to  maintain  a  ladder 
rack  on  an  adjoining  passageway,  although 
the  grantor  has  for  a  long  period  main- 
tained one  there  and  its  use  in  connection 
with  the  shop  is  convenient.  Sanford  v. 
Boss,  42:  629,  84  Atl.  936,  76  N.  H.  476. 

40.  The  assigns  of  one  granting  land  to 
a  canal  company  in  consideration  and  on 
condition  of  the  erection  of  a  canal  basin 
thereon  and  its  resulting  benefits  cannot 
force  the  assigns  of  the  company  to  restore 
the  use  of  the  basin  on  the  ground  that  an 
easement  was  thereby  created  which  passed 
as  appurtenant  to  the  land,  where  there  was 
no  exception  or  reservation  in  the  deed  to 
the  grantor  or  his  assigns,  and  the  law, 
when  the  deed  was  made,  required  words  of 
inheritance  to  create  a  fee-simple  title  to  an 
easement,  and  a  statute  required  the  deed  of 
any  estate  above  seven  years  to  be  executed, 
acknowledged,  and  recorded,  and  the  ease- 
ment could  be  claimed  only  on  the  theory  of 
a  parol  agreement  of  the  company  to  erect 
the  basin,  or  on  the  theory  of  the  reserva- 
tion of  an  easement,  it  being  necessary  in 
either  case  that  a  deed  be  executed  and  re- 
corded. Dawson  v.  Western  Maryland  R. 
Co.  14:  809,  68  Atl.  301,  107  Md.  70. 

41.  A  grant  with  full  covenant  of  war- 
ranty of  the  rear  of  a  lot,  for  the  construc- 
tion of  a  building,  terminates  the  right  of 
the  grantor  to  drain  a  building  standing  on 


EASEMENTS,  II.  c. 


969 


the  front  of  the  lot  to  the  sewer  in  the  al- 
ley at  the  rear,  where  the  sewer  connec- 
tion had  been  underground,  and  the  gran- 
tee had  no  actual  knowledge  thereof,  and 
the  roof  drainage  had  been  across  a  low 
building  on  the  lot  which  the  grantor  knew 
was  to  be  torn  down,  while  it  is  not  impos- 
sible to  secure  drainage  in  other  directions, 
although  it  will  be  expensive  to  do  so. 
Brown  v.  Fuller,  33:  459,  130  N.  W.  621, 
165  Mich.  162. 

42.  A  devise  of  a  house  and  lot  will  not, 
by  implication,  carry  an  easement  in  a 
tract  lying  between  the  house  and  the  street, 
which  the  devisor  has  used  as  a  dooryard, 
further  than  is  necessary  to  give  access  to 
the  street, — at  least  where  there  is  sufficient 
land  in  the  lot  devised  for  the  purposes  of 
a  yard.  Miller  v,  Hoeschler,  8:  327,  105  N. 
W.  790,  126  Wis.  263.  (Annotated) 

43.  A  reservation  of  an  alley  in  a  parti- 
tion deed  gives  one  party  no  right  to  have 
the  other  maintain  an  obstruction  on  his 
portion  of  the  fee  for  the  benefit  of  the 
former.  Gaynor  v.  Bauer,  3:  1082,  39  So. 
749,  144  Ala.  448. 

liiglit  and  air. 

Extinguishment  of,  see  infra,  91. 

Damages  recoverable  by  tenant  for  obstruc- 
tion of  easement  of  light  and  air,  see 
Damages,  39. 

Right  to  compensation  for  interference  with 
light,  air,  and  view,  see  Eminent  Do- 
main, 192. 

Demurrer  to  pleadings  in  action  for  ob- 
struction of  light  and  air,  see  Plead- 
ing, 148. 

44.  A  grant  of  an  easement  of  way  with 
no  mention  of  light  and  air  does  not  pre- 
vent the  owner  of  the  fee  from  interfering 
with  the  light  and  air  by  placing  structures 
over  the  way  in  such  a  manner  as  not  to 
interfere  with  its  reasonable  and  ordinary 
use.  Bitello  v.  Lipson,  16:  193,  69  Atl.  21, 
80  Conn.  497.  (Annotated) 

45.  A  lease  of  a  tenant  carries  with  it 
an  implied  grant  of  the  right  to  light  and 
air  from  the  adjoining  land  of  the  landlord, 
where  the  situation  and  habitual  use  of  the 
demised  tenement  are  such  that  the  right  to 
light  and  air  is  essential  to  the  beneficial  en- 
joyment of  the  leased  tenement.  Darnell  v. 
Columbus  Show  Case  Co.  13:  333,  58  S.  E. 
631,  129  Ga.  62.  (Annotated) 

46.  A  lessee  has  no  right  to  shut  out  nec- 
essary light  and  air  from  a  dwelling  house 
upon  adjacent  premises  owed  by  the  landlord 
and  leased  to  another  person;  and  if  he 
does  so  he  is  liable  to  his  neighboring  ten- 
ant for  the  damages  resulting  from  his  in- 
terference with  the  latter's  implied  ease- 
ment. Darnell  v.  Columbus  Show  Case  Co. 
13:  333,  58  S.  E.  631,  129  Ga.  62. 

47.  A  tenant  who  renews  his  lease  after 
the  obstruction  of  windows  of  the  premises 
by  lumber  piled  upon  an  adjoining  lot  takes 
the  property  as  he  finds  it,  and  cannot  com- 
plain of  conditions  existing  at  the  time  of 
the  renewal  of  his  lease  contract.  Darnell 
V.  Columbus  Show  Case  Co.  13:  333,  58  S. 
E.  631,  129  Ga.  62. 

Digest  1-52  L.R.A.(N.S.) 


Use  of  halls  or  stairivays. 

48.  A  conveyance  by  metes  and  bounds  of 
a  lot  with  buildings  thereon  does  not  carry 
with  it  by  implication  the  right  to  the  use 
of  a  hallway  on  adjoining  property  of  the 
grantor,  to  reach  the  rear  and  upper  stories 
of  the  building  conveyed,  if  the  building  is 
located  upon  a  street  with  an  alley  in  the 
rear,  so  that  the  use  of  the  hallway  is  not 
reasonably  necessary  to  the  full  enjoyment 
of  the  property  conveyed,  although  it  had 
been  used  for  the  purpose  claimed  by  the 
common  owners  of  the  property  for  more 
than  thirty  years.  Bussmeyer  v.  Jablonsky, 
39:  549,  145  S.  W.  772,  f41  Mo.  681. 

49.  A  deed  partitioning  land  between 
heirs  will  not  convey,  by  implication,  ease- 
ments to  continue  existing  stairways  and 
drains  on  the  division  line,  if  it  would  be  a 
mere  matter  of  expense  and  inconvenience 
for  the  complaining  party  to  place  them  on 
his  own  land.  Gaynor  v.  Bauer,  3:  1082,  39 
So.  749,  144  Ala.  448.  (Annotated) 

50.  That  two  buildings,  access  to  the  up- 
per stories  of  which  was  gained  through  a 
common  stairway,  were  not  erected  at  the 
same  time;  and  that  their  floors  were  not 
on  the  same  level, — will  not,  in  case  of  their 
sale  to  different  persons,  prevent  the  opera- 
tion of  the  rule  that,  in  case  of  the  sale  to 
different  persons  of  a  piece  of  property,  the 
easements  created  by  the  former  owner  in 
favor  of  one  part,  to  the  detriment  of  the 
other,  will  continue,  where  the  stairway  had 
been  in  use  for  a  long  period  of  time  before 
the  conveyance.  Powers  v.  Hefiernan,  16: 
523,  84  N."  E.  661,  233  111.  597. 

51.  A  stairway  and  hall  constructed  by 
the  owner  of  two  adjoining  buildings  next 
the  wall  of  one  of  them,  for  access  to  the 
second  stories  of  both,  is  a  reasonable  neces- 
sity to  the  other,  where  access  to  its  second 
story  cannot  be  gained  without  a  large  out- 
lay of  money  and  impairment  of  the  size 
and  usefulness  of  the  first  story,  so  that,  in 
case  of  the  sale  of  the  buildings  to  dillerent 
persons,  the  purchaser  of  the  one  contain- 
ing the  stairway  and  hall  will  not,  although 
he  purchased  first,  be  permitted  to  forbid 
their  use  by  the  purchaser  of  the  other. 
Powers  V.  Heffernan,  16:  523,  84  N.  E.  661, 
233  111.  597. 

Support  of  building. 

52.  That,  upon  the  division  by  a  proper- 
ty owner  of  a  parcel  of  land  containing  two 
buildings  sustained  by  a  common  wall,  so 
as  to  convey  the  wall  with  one  building,  the 
other  building  is  plainly  dependent  upon  it 
for  support,  does  not  give  the  grantor  an 
easement  therein  by  implication,  where  he 
might  easily  construct  a  wall  to  support 
his  building.  Cherry  v.  Brizzolara,  21:  508, 
116  S.  W.  668,  89  Ark.  309. 

As  to  'waters. 

53.  The  rule  as  to  creation  of  easement 
by  the  severance  of  a  tract  of  land,  in  favor 
of  one  portion  of  which  an  artificial  con- 
dition has  been  created  on  the  other,  does 
not  apply  in  case  of  the  sale  by  the  owner 
of  a  milldam,  to  one  who  has  leased  from 
him  land  on  and  under  the  pond  on  which 


970 


EASEMENTS,  III. 


to  conduct  an  ice  business,  of  the  land  so 
leased,  with  knowledge  that  it  is  purchased 
for  the  purpose  of  continuing  such  busi- 
ness, where  the  lease  requires  the  surrender 
of  the  premises  at  its  termination,  allow- 
ing the  lessee  to  remove  the  buildings,  since 
no  advantage  or  artificial  condition  exists 
within  the  meaning  of  the  rule.  Marshall 
Ice  Co.  V.  La  Plant,  12:  1073,  111  N.  W.  101(5, 
136  Iowa,  621. 

54.  The  implication  of  an  easement  to 
have  a  milldam  maintained  in  a  grant  of 
land  upon  and  under  the  pond  is  not  de- 
stroyed by  a  reservation  in  the  grant  of  the 
right  to  enter  upon  the  land  granted  to 
inspect  and  repair  the  dam  and  to  procure 
materials  therefor.  Marshall  Ice  Co.  v.  La 
Plant,  12:  1073,  111  N.  W.  1016,  136  Iowa, 
621. 

55.  The  court  will  not  assume  the  exist- 
ence of  limitations  or  adverse  interests 
which  will  prevent  the  passage,  by  a  sale 
of  land  on  a  mill  pond  which  has  been 
maintained  for  forty  years  by  the  owner 
of  the  land  on  which  it  stands,  of  an  ease- 
ment to  have  the  dam  continued.  Marshall 
Ice  Co.  V.  La  Plant,  12:  1073,  HI  N.  W. 
1016,  136  Iowa,  621. 

56.  If  an  owner  of  land  erect  a  milldam 
upon  it  for  the  purpose  of  operating  a 
gristmill,  and  thereafter  convey  a  portion 
of  the  land,  including  a  part  of  the  mill 
pond,  there  is  an  implied  reservation  of  an 
easement  upon  the  land  granted,  as  ap- 
purtenant to  the  gristmill.  Bennett  v. 
Booth,  39:  618,  73  S.  E.  909,  70  W.  Va.  264. 
Way  of  necessity. 

How  lost,  see  infra,  82,  S3. 

Injunction  against  obstruction  of;  right  of 
defendant  to  affirmative  relief  upon 
cross  bill,  see  Pleading,  543. 

Acquiring  right  of,  by  prescription,  see 
supra,  29-31. 

In  stairway  and  hall,  see  supra,  51. 

Effect  of  will  to  convey,  see  Wills,  191. 

57.  There  can  be  no  private  way  of  ne- 
cessity over  the  lands  of  a  stranger.  Schu- 
lenbarger  v.  Johnstone,  35:  941,  116  Pac. 
843,  64  Wash.  202. 

58.  The  legal  principle  requiring  an 
easement  to  be  "continuous,"  as  a  requisite 
to  a  grant  or  reservation  thereof  by  impli- 
cation, is  not  applicable  to  a  way.  Hoffman 
V.  Shoemaker,  34:  632,  71  S.  E.  198,  69  W. 
Va.  233. 

59.  A  way  of  necessity  passes  with 
each  successive  transfer  of  the  title  to  the 
dominant  property,  whether  voluntary  or 
involuntary.  Proudfoot  v.  Saffle,  12:  482, 
57  S.  E.  256,  62  W.  Va.  51. 

60.  A  grantor  may  claim  a  way  over 
the  granted  premises,  as  reserved  by  impli- 
cation, if  it  is  shown  to  be  strictly  neces- 
sary to  the  use  and  enjoyment  of  adjacent 
land  retained  by  him,  and  the  intent  to 
reserve  it  is  not  negatived  by  any  express 
terms  of  the  deed.  Hoffman  v.  Shoemaker, 
34:  632,  71  S.  E.  198,  69  W.  Va.  233. 

61.  A  way  of  necessity  implied  by  reason 
of  a  physical  obstruction  to  access  to  the 
land  is  appurtenant  to  the  granted  land, 
and  passes  to  subsequent  grantees  thereof, 
so  that  a  subsequent  grantee  of  land  not 
Digest  1-52  L.B.A.(N.S.) 


used  at  the  time  of  the  severance  of  the 
larger  tract  by  the  common  owner  may, 
when  the  use  of  such  way  becames  neces- 
sary to  the  enjoyment  of  his  land,  claim  it 
under  the  remote  deed  of  severance.  Grotty 
V.  New  River  &  P.  Consol.  Coal  Co.  46:  156, 
78  S.  E.  233,  72  W.  Va.  68.       (Annotated) 

62.  A  way  of  necessity  over  the  lands  of 
a  grantor  is  implied  in  a  deed,  if,  by  reason 
of  a  physical  obstruction  to  access  to  the 
granted  land,  the  grantee  cannot  construct 
a  road  from  a  considerable  portion  thereof 
over  the  residue  without  an  expenditure 
wholly  disproportionate  to  the  value  of  the 
land.  Crotty  v.  New  River  &  P.  Consol. 
Coal  Co.  46:  156,  78  S.  E.  233,  72  W.  Va. 
68. 

63.  Mere  convenience  will  not  create  a 
way  of  necessity  across  a  railroad  track 
from  one  portion  of  a  farm  to  another, 
where  both  portions  are  accessible  by  high- 
way. Childs  V.  Boston  &  M.  R.  Co.  48:  378, 
99  N.  E.  957,  213  Mass.  91. 

64.  A  rigiit  of  way  from  a  farm  to  a 
highway  which  is  useless  except  in  connec- 
tion with  the  land  is  appurtenant  to  it, 
and  passes  with  it  to  the  owner's  heirs. 
Schmidt  v.  Brown,  11:457,  80  N.  E.  1071, 
226   111.   590. 

65.  The  purchaser,  at  judicial  sale,  of  a 
tract  of  land  inaccessible  from  the  public 
highway  except  along  a  private  way  thereto- 
fore opened  for  its  benefit,  by  the  former 
owner,  through  adjacent  lands  owned  by 
him,  is  entitled  to  use  the  private  way  as  an 
outlet  to  the  public  road.  Proudfoot  v. 
SafHe,  12:  482,  57  S.  E.  256,  62  W.  Va.  51. 

66.  The  absence  of  a  constructed  track 
for  teams  to  a  road  on  which  a  grant  of 
land  is  bounded  is  not  sufficient  to  give  the 
grantee  a  way  of  necessity  over  remaining 
land  of  the  grantor.  Corea  v.  Higuera,  17: 
1018,   95   Pac.   882,    153   Cal.   '1-51. 

(Annotated) 

67.  An  agreement  by  a  tenant  to  pay 
rent  for  the  use  of  a  right  of  way  over  ad- 
joining property  which  is  appurtenant  to 
the  estate  is  not  binding  on  his  lessor  if 
made  without  his  knowledge.  Schwer  v. 
Martin,  7:  614,  97  S.  W.  12,  29  Ky.  L.  Rep. 
1221. 

68.  A  passageway  inclosed  on  both  sides, 
consisting  of  planks,  with  steps  leading  to 
them  at  both  ends,  furnishing  access  trom 
a  house  located  on  one  street  to  a  parallel 
street  in  the  rear,  across  property  owned 
by  the  one  who  owns  the  house,  which  is 
reasonably  necessary  to  the  enjoyment  of 
the  property  on  which  the  house  is  located, 
will  pass  by  implication  with  a  grant  of  the 
latter  property.  German  Saving  &  L,  Co. 
V.  Gordon,  26:  331,  102  Pac.  736,  54  Or.  147. 

(Annotated) 

///.  Extent  of  rights;  care  in  exercise 
of  rights. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

License  to  turn  surface  water  on  licensor's 

land,  see  License,  2,  8. 
As  to  waters,  see  Waters,  II. 


EASEMENTS,  IV.,  V. 


971 


69.  The  owner  of  the  lower  portion  of  a 
building  is  under  no  obligation  to  i^eep  its 
walls  in  repair  so  as  to  furnish  support  for 
the  upper  portion,  which  is  owned  by  an- 
other person.  Jackson  v.  Bruns,  3:  510,  106 
N.  W.  1,  129  Iowa,  616.  (Annotated) 

70.  The  owner  of  a  way  of  necessity 
cannot  be  required  to  see  that  the  gates  are 
kept  shut  by  persons  not  under  his  control, 
or  to  do  more  than  close  them  after  he 
discovers  that  they  have  been  left  open  by 
such  persons,  and  use  reasonable  care  to 
avoid  unnecessary  annoyance  to  the  owner 
of  the  fee.  Rater  v.  Shuttlefield,  44:  loi, 
125  N.  W.  235,  146  Iowa,  512. 

71.  One  having  an  easement  across  an- 
other's property  is  not  liable  in  damages 
for  entering  upon  the  land  along  the  ditch 
for  the  purpose  of  cleaning  and  repairing 
it,  if  he  does  no  unnecessary  injury.  Holm 
V.  Davis,  44:  89,  125  Pac.  403,  41  Utah,  200. 

72.  An  owner  of  land  across  which  an 
easement  has  been  acquired  for  a  right  of 
way  for  a  ditch  has  a  right,  in  subordination 
to  such  easement,  to  cross  it  with  a  pipe 
line  to  utilize,  on  one  side  of  the  ditch, 
water  developed  on  the  other  side.  Smith 
Canal  or  Ditch  Co.  v.  Colorado  lee  &  Stor- 
age Co.  3:  1 148,  82  Pac.  940,  34  Colo.  485. 

(Annotated) 

73.  The  grant  of  a  right  to  enter  upon 
a  strip  of  land  for  the  purpose  of  laying 
one  or  more  pipes  "for  conveying  water" 
from  a  source  of  supply  "to  the  city  res- 
ervoir" does  not  give  the  right  to  use  the 
pipes  as  a  part  of  the  distributing  system 
of  the  city  after  the  reservoir  has  been 
abandoned,  but  it  does  include  the  right  to 
convey  water  to  a  high  pressure  stand- 
pipe  constructed  in  connection  with,  and  as  a 
part  of,  the  reservoir.  Gray  v.  Cambridge, 
2:  976,  76  N.  E.  195,  189  Mass.  405. 

74.  A  provision  in  a  deed  granting  a  por- 
tion of  a  lot  that  u.  passageway  is  to  be  kept 
open  and  for  use  in  common  between  the  two 
houses,  a  portion  to  be  furnished  by  grantor 
and  grantee  respectively,  does  not  limit  the 
right  to  a  use  in  connection  with  the  houses, 
but  it  extends  to  ail  the  tract  of  land  af- 
fected by  the  conveyance.  Bailey  v.  Agawam 
Nat.  Bank,  3:  98,  76  N.  J^J.  449,  190  Mass. 
20. 

75.  The  rights  of  the  grantee  of  a  city 
lot  "with  the  use,  in  common  with  others," 
of  a  lane  in  the  rear,  are  not  limited  to  a 
mere  right  of  way  over  the  lane,  but  include 
a  reasonable  use  of  the  way  for  all  proper 
purposes;  and  he  may  therefore,  as  against 
the  owner  of  the  fee  of  the  lane,  construct 
a  fire  escape  overhanging  the  lane  with  its 
lower  end  17  feet  above  the  ground.  Meigh- 
en  v.  Pacaud,  3  B.  R.  C.  529,  40  Can.  S.  C. 
188.  (Annotated) 
liight  and  air. 

Damages  recoverable  by  tenant  for  obstruc- 
tion of  easement  of  light  and  air,  see 
Damages,  39. 

In  alley. 

Obstruction  of,  see  infra,  76. 

Cattle  pass. 

Easement  in  highway,  see  Highways,  21-23. 

Digest  1-52  L.R.A,(N.S.) 


Obstruction;  gates. 

Laches   in   objecting  to   obstruction   of,   see 
Limitation  of  Actions,  36. 

76.  The  grantee  of  land  over  which  the 
grantor  has  heretofore  by  deed  granted  a 
free  right  of  way  for  an  alleyway  is  not  en- 
titled to  obstruct  the  way  by  a  gate  or 
fence.  Flaherty  v.  Fleming,  3:  461,  52  S. 
E.  857,  58  W.  Va.  669.  (Annotated) 

77.  The  owner  of  a  right  of  way  across 
another's  farm  may  remove  gates  placed 
across  it  by  one  who  purchases  the  servient 
estate  with  notice  of  the  way  as  it  existed 
on  the  ground,  and  of  the  claims  of  the 
dominant  owner  with  respect  to  it.  Schmidt 
v.  Brown,  11:457,  80  N.  E.  1071,  226  111. 
590. 

78.  The  owner  of  a  parcel  of  woodland 
over  which  another  has  secured  a  right  of 
way  by  prescription  may,  upon  transforming 
the  property  into  agricultural  lands,  erect 
and  maintain  gates  at  the  termini  of  the 
right  of  way.  Luster  v.  Garner,  48:  87,  159 
S.  W.  604,  i28  Tenn.  160.  (Annotated) 
Change. 

Raising  or  extending  party  wall,  see  Party 

Wall,  18-20. 
Easement    for    water    ditch,    see    Watebs, 

251. 

79.  Laying  a  single  pipe  of  a  certain 
size  under  a  grant  of  a  right  to  lay  water 
pipes  or  mains  to  convey  a  water  supply 
fixes  the  right  of  the  grantee,  and  he  can- 
not subsequently  lay  additional  ones  un- 
less a  right  in  excess  of  the  one  actually 
used  was  clearly  given  by  the  grant  when 
viewed  in  the  light  of  all  the  conditions  ex- 
isting when  it  was  executed.  Winslow  v. 
Vallejo,  5:  851,  84  Pac.  191,  148  Gal.  723. 

( Annotated ) 

IV.  Transfer;  severance. 

80.  One  who,  in  connection  with  a  grant 
of  a  parcel  of  land,  receives  a  grant  of  an 
easement  to  himself,  his  heirs,  and  assigns 
of  a  right  of  way  across  remaining  prop- 
erty of  the  grantor  to  the  highway,  cannot 
grant  rights  in  the  easement  to  a  stranger 
having  no  interest  in  the  land  granted, 
since  it  is  solely  appurtenant  to  the  tract 
conveyed.  Wood  v.  Woodley,  41:  1107,  75 
S.  E.  719,  160  N.  C.  17.  (Annotated) 

81.  The  right  appurtenant  to  land  on  a 
mill  pond  to  have  the  dam  maintained  is 
not  transferred  by  a  grant  of  an  equal 
right  in  common  to  maintain  the  dam  or 
level  created  thereby  for  the  mutual  benefit 
of  the  parties,  so  as  to  destroy  the  right 
of  the  grantor  to  maintain  an  action  for 
the  protection  of  his  easement.  Marshall 
Ice  Co.  V.  La  Plant,  12:  1073,  111  N.  W. 
1016,  136  Iowa,  621. 

V.  How  lost. 

(See  also  Easements,   F.   in  Digest  L.R.A. 

Loss  of  easement  for  railroad  right  of  way, 
see  Eminent  Domain,  52,  120. 


972 


EASEMENTS,  V. 


Estoppel  to  claim  easement  by  permitting 
use  of  property  in  way  inconsistent 
therewith,  see  Estoppbx,  153,  154. 

Sufficiency  of  proof  of  abandonment,  see  Evi- 
dence, 2186. 

Loss  of  right  to  object  to  obstruction  of, 
see  Limitation  of  Actions,  36. 

Who  may  maintain  action  to  enforce  for- 
feiture, see  Pabties,  19. 

Loss  of  easement  in  party  wall,  see  Party 
Wall,  22,  23. 

Sufficiency  as  against  demurrer  of  com- 
plaint in  action  for  forfeiture  of  ease- 
ment, see  Pleading,  576. 

Forfeiture  by  use  to  which  property  is  dedi- 
cated, see  Railroads,  20. 

82.  A  right  of  way  created  by  necessity 
for  its  use  cannot  be  extinguished  so  long 
as  the  necessity  continues  to  exist.  Proud- 
foot  V.  Saffle,  12:  482,  57  S.  E.  256,  62  W.  Va. 
5L 

83.  A  way  of  necessity  existing  over 
premises  is  not  extinguislied  by  a  judicial 
sale  of  the  premises  and  its  conveyance  to 
the  purchaser.  Proudfoot  v.  Saffle,  12:  482, 
57  S.  E.  256,  62  W.  Va.  51.  (Annotated) 

84.  While  the  owner  of  a  bridge,  with 
reference  to  the  existence  of  which  lots  have 
been  sold,  will  not  be  permitted  to  remove  it 
to  the  injury  of  lot  owners  while  it  remains 
structurally  sound,  and  capable  of  use, 
though  out  of  repair,  yet  the  owners  of  the 
easement  may  be  required  to  make  the  -  j- 
pairs  within  a  reasonable  time,  under  pain 
of  losing  their  right  by  abandonment.  Oney 
V.  West  Buena  Vista  Land  Co.  2:  832,  52  S. 
E.   343,   104  Va.   580. 

85.  Although  purchasers  of  lots  in  a 
platted  tract  on  the  opposite  side  of  a  river 
from  a  city  acquire  an  easement  in  a  bridge 
shown  on  the  plat,  so  that  it  cannot  be  re- 
moved to  their  injury,  yet  the  duty  of 
maintenance  rests  on  them,  and  the  ease- 
ment will  be  lost  by  failure,  for  an  un- 
reasonable time,  to  make  repairs,  so  that 
an  abandonment  may  be  presumed.  Oney  v. 
West  Buena  Vista  Land  Co.  2:  832,  52  S. 
E.  343,  104  Va.  580.  (Annotated) 

86.  Where  the  reservation  in  a  deed  of  a 
right  of  way  over  the  granted  premises 
makes  no  mention  of  any  building  or  other 
structure  upon  either  the  dominant  or  ser- 
vient estate,  the  right  of  way  must  be  taken 
as  appurtenant  to  the  land,  and  not  to  the 
building  standing  thereon;  and  it  therefore 
is  not  destroyed  by  the  tearing  down  of  the 
existing  building  on  the  dominant  estate. 
Reynolds  v.  Union  Sav.  Bank,  49:  194,  136 
N.  W.  529,  155  Iowa,  519. 

87.  A  disclaimer  of  a  right  of  way  across 
property  will  not  work  an  estoppel  in  favor 
of  one  who  purchases  the  property  in  reli- 
ance upon  it,  if  the  owner  of  the  easement 
had  no  notice  of  the  intended  purchase. 
Adams  v.  Hodgkins,  42:  741,  84  Atl.  530, 
109  Me.  361. 

88.  An  easement  of  way  created  for  the 
use  of  parcels  of  land  in  private  owner- 
ship, to  furnish  access  from  their  dwell- 
ings to  a  public  street,  is  abandoned  by  the 
Digest  1-52  L,R.A.(N.S.) 


acquisition  of  such  parcels  for  railroad  pur- 
poses, and  the  removal  of  the  dwellings  and 
other  buildings  and  trees  therefrom. 
Brown  v.  Oregon  Short  Line  R.  Co.  24:  86, 
102  Pac.  740,  36  Utah,  257. 

89.  The  easement  of  a  property  owner  in 
a  private  way  across  a  railroad  track  is  ex- 
tinguished by  his  joining  in  a  proceeding  to 
establish,  against  the  will  of  the  railroad 
company,  a  public  road  upon  the  private 
way.  McKinney  v.  Pennsvlvania  R.  Co.  21: 
X002,  70  Atl.  946,  222  Pa. "^48.     (Annotated) 

90.  All  private  riglit  in  a  crossing  over 
a  railroad  track  is  lost  upon  the  discontinu- 
ance by  the  proper  authorities  of  a  public 
road  which  had  been  laid  out  on  its  site  at 
the  petition  of  its  owner.  McKinney  v. 
Pennsylvania  R.  Co.  21:  1002,  70  Atl.  946, 
222  Pa.  48. 

91.  Unity  of  seisin  for  an  estate  in  fee 
will  not  cause  an  easement  of  ancient  light 
to  be  extinguished  where  there  is  no  unity 
of  possession  and  enjoyment.  Richardson  v. 
Graham,  1  B.  R.  C.  409,  [1908]  1  K.  B. 
39.  Also  Reported  in  77  L.  J.  K.  B.  N.  S. 
27,  98  L.  T.  N.  S.  360.  (Annotated) 
Nonuser. 

92.  An  easement  appurtenant  to  land  is 
not  lost  by  failure  of  the  owner  to  use  it 
for  a  period  less  than  ten  years.  Bennett 
v.  Booth,  39:  618,  73  S.  E.  909,  70  W.  Va. 
264. 

93.  A  right  of  way  created  by  grant  is  not 
lost  by  mere  nonuser,  unaccompanied  by  in- 
tention to  abandon  and  adverse  possession 
by  tlie  owner  of  the  servient  tenement,  or 
expense  or  damage  sustained  by  him.  Adams 
V.  Hodgkins,  42:  741,  84  Atl.  530,  109  Me. 
361.  (Annotated) 

94.  The  mere  use  by  the  owner  of  a  right 
of  way  of  another  way  from  his  property  to 
the  highway,  which  is  equally  convenient  to 
his  own,  does  not  extinguisli  his  right. 
Adams  v.  Hodgkins,  42:  741,  84  Atl.  530, 
109  Me.  361. 

Conveyance  of  servient  property. 
See  also  supra,  81. 

95.  An  easement  appurtenant  to  prop- 
erty which  has  been  leased  is  not  extin- 
guished during  the  term  by  a  conveyance 
of  the  reversion  in  fee  to  the  owner  of  the 
servient  tenement.  Richardson  v.  Graham, 
1  B.  R.  C.  469,  [1908]  1  K.  B.  39.  Also  Re- 
ported in  77  L.  J.  K.  B.  N.  S.  27,  98  L.  T. 
N.  S.  360. 

96.  An  easement  of  access  to  remaining 
property  of  the  grantor  will  not  be  relin- 
quished by  a  conveyance  of  a  portion  of  the 
property  with  general  covenants  of  war- 
ranty. Powers  V.  Heffernan,  16:  523,  84  N. 
E.  661,  233  111.  597. 

97.  An  easement  consisting  of  the  right 
to  the  free  use  of  the  water  of  mineral 
springs  situated  upon  lands  of  another, 
which  it  is  claimed  arose  by  virtue  of  an 
executed  parol  contract  with  the  former 
owner  of  the  lands,  cannot  be  asserted 
against  a  subsequent  grantee  where  nothing 
appears  of  record  indicating  the  existence 
of  any  servitude  attached  to  the  lands,  and 


EATING  PLACES— EJECTMENT. 


973 


the  grantee  purchased  without  notice.  Job- 
ling  V.  Tuttie,  9:  960,  89  Pac.  699,  75  Kan. 
361. 


EATING  PLACES. 


Serving  unfit  food  to  guests,  see  Damages, 
35G,  407. 

Right  of  keeper  of,  to  recover  damages  re- 
sulting from  unwholesome  condition  of 
food  purchased,  see  Food,  19. 

Duty  of  master  to  provide  for  employees, 
see  Mastqr  and  Servant,  144. 


EAVESDROPPER. 

Competency  of,  as  witness,  see  Witnesses, 
3. 


ECCLESIASTICAL  LAW. 

See  Religious  Societties. 

♦  •» 


ECCLESIASTICAL  TRIBUNALS. 

Conclusiveness  of  decisions  of,  see  Courts, 
I.  d,  2. 


^  *» 


ECONOMICS. 

Instruction  in,  see  Schools,  I,  a. 

♦-♦-♦ 

EDITOR. 

Liability  of,,  for  libel,  see  Libel  and  Slan- 
der, 1,  2. 

Conviction  of,  for  publishing  newspaper 
articles  detrimental  to  persons  under 
trial,  see  Perversion  of  Justice. 


EDUCATION. 


Charitable  bequest  for,  see  Charities,  19- 

22,  46-48,  50,  62,  64. 
As  a  necessary  for  infant,  see  Infants,  68. 
In  general,  see  Collbxses;  Schools. 


EDUCATIONAL  INSTITUTION. 

Consideration  for  subscription  to,  see  Con- 
tracts, 101. 

Exemption  of,  from  taxation,  sea  Taxes,  I 
f,  3. 

See  also  Colleges;  Schools. 

Digest  1-52  L.R.A.(N.S.) 


EFFECT, 

Of  death,  see  Death,  VI. 

Opinion  evidence  as  to,  see  Evidence,  VII.  c. 

Question  for  jury  as  to,  see  Trial,  II.  c.  2. 


.  ■♦♦♦ 

EFFECTIVE  CAUSE. 

See  Proximate  Cause. 


■♦•» 


EGRESS. 

Right  of  egress  from  property,  see  High- 
ways, 24-26,  96-101,  134. 


EIGHT-HOUR  LAW. 

As  interference  with  commerce,  see  Com- 
merce, 27,  47-54. 

Constitutionality  of,  see  Constitutional 
Law,  301,  302,  307,  477-479,  720;  Evi- 
dence, 37. 

Presumption  as  to  violation  of,  see  Evi- 
dence, 691. 

See  also  Master  and  Servant,  I.  d. 


EJECTION. 


Of  passenger  or  trespasser,  see  Carriers,  II, 
h;  Damages,  III.  c,  2;  Damages,  667- 
670;  Pleading,  368,  560. 

Of  tenant,  injunction  against,  see  Injunc- 
tion, 86. 

Of  guest  from  room  in  hotel,  see  Innkeep- 
ers, 30. 

Of  association  from  rooms  by  municipal  of- 
ficers, see  Municipal  Corporations, 
390. 


EJECTMENT. 


I.  When  proper  remedy,   1—4:. 
II.  Title  and  defenses,  5—19. 

a.  Sufflcienci/    of  plaintiff's   title,. 

5-16. 

1.  In  general,   5—14.. 

2.  Possessory  titles,  15,  16, 

b.  Defenses,    17—19. 

c.  Proofs. 

III.  Verdict;  judgment;  relief  general- 

ly, 20—30. 
a.  Verdict;   judgment;    obtaining 

possession,  20—22. 
ft.  Mesne   profits;   improvements ;^^ 

em,blenients,  23—30. 

IV.  Statutory  new  trial. 

Right  of  one  accepting  benefits  of  judg- 
ment in  ejectment  to  appeal  from  un- 
favorable portion,  see  Appeal  ani> 
Error,  97. 


974 


EJECTMENT,  I.,  II.  a,  1. 


Error  in  instructions  in  action  of,  see  Ap- 
peal AND  Erbob,  1320. 

Right  to  maintain  suit  to  quiet  title  where 
there  is  a  remedy  by  ejectment,  see 
Cloud  on  Title,  11. 

Rule  to  bring  ejectment  to  try  title,  see 
Cloud  on  Title,  24.   • 

Waiver  of  remedy  in,  and  suit  upon  implied 
contract,  see  Contracts,  16. 

To  obtain  land  conveyed  to  railroad  in  con- 
sideration of  its  agreement  to  maintain 
depot  thereon,  see  Covenants  and  Con- 
ditions, 8. 

Measure  of  damages  for,  see  Damages,  465, 
733-735. 

Effect  of  remedy  by,  on  right  to  resort  to 
equity,  see  Equity,  49. 

Estoppel  by  judgment  for  defendant  in  ac- 
tion for,  see  Estoppel,  44. 

Right  to  set  up  equitable  defense  of  estop- 
pel in  action  of  ejectment,  see  Estoppel, 
48. 

Presumed  grant,  see  Evidence,  626. 

Presumption  of  ouster  in  ejectment  action, 
see  Evidence,  633,  634. 

Evidence  in  action  of,  see  Evidence,  858. 

Rule  upon  tenant  by  entireties  to  bring 
ejectment  against  cotenant,  see  Hus- 
band and  Wife,  65. 

Injunction  against  cutting  timber  pending 
ejectment  action,  see  Injunction,  210. 

Injunction  to  restrain  prosecution  of  acticm 
of,  see  Injunction,  264. 

EflFect  of  ruling  in,  see  Judgment,  78. 

Right  to  jury  in  action  in  nature  of  eject- 
ment, see  JuBY,  18. 

Service  of  summons  in,  as  arresting  run- 
ning of  limitations,  see  Limitation  op 
Actions,  289. 

Interest  under  oil  and  gas  lease  as  subject 
of  ejectment  action,  see  Mines,  65. 

Joinder  of  parties  plaintiff,  see  Parties, 
144. 

Sufficiency  of  complaint  in  action  for,  see 
Pleading,  226. 

Keeping  alive  equitable  suit  upon  failure 
of  cross-bill  to  establish  right  to  equi- 
table relief,  see  Pleading,  535. 

See  also  Cloud  on  Title,  8,  14. 

7.  When  proper  remedy. 

(See  also  same  heading  in  Digest  L.R.A 
1-10.) 

1.  Ejectment  will  lie  to  secure  a  re- 
moval of -wires  strung  through  the  air  over 
one's  property,  althougli  the  supports  are 
on  adjoining  land.  Butler  v.  Frontier 
Teleph.  Co.  ii:  920,  79  N.  E.  716.  186  N.  Y 
486.  (Annotated) 

2.  One  upon  whose  lands  an  adjoining 
proprietor  has  encroached  in  laying  the 
foundation  of  a  building  may  maintain 
ejectment  to  recover  possession  of  that  por- 
tion of  his  property  from  which  he  has  thus 
been  ousted,  although  the  projection  is  en- 
tirely below  the  surface  of  the  soil,  and 
the  building  erected  upon  it  does  not  ex- 
tend beyond  the  line.  Wachfitein  v.  Chris- 
topher, 11:  917,  57  S.  E.  511,  128  Ga.  229. 

(Annotated) 
Digest  1-52  KR.A.CN.S.) 


3.  An  ownrcr  of  land  who  fa  erccIoJeJ 
from  the  possession  thereof  by  tke  exercise 
of  an  easement  over  it  may  maintain  eject- 
ment to  recover  his  possession,  under  a  stat- 
ute providing  that  the  complaint  in  eject- 
ment shall  set  forth  that  plaintiff  huA  an 
estate  or  interest  in  the  premises  claimed, 
the  nature  and  extent  of  which  shall  be 
stated,  whether  in  fee,  dower,  for  life,  or  for 
a  term  of  years,  that  plaintiff  is  entitled 
to    possession,    and    that    defendant    withh 

I  holds  it  from  him.     Le  Blond  v.  Peshtigo, 
25:  511,  123  N.  W.  157,  140  Wis.  604. 

4.  The  establishment  of  a  highway  over 
private  property  so  that  the  owner  has  no 
right  therein  except  to  use  it  as  a  highway 
in  common  with  all  others  deprives  such 
owner  of  the  possession,  so  as  to  entitle  him 
to  maintain  ejectment  to  regain  it.  Le 
Blond  V.  Peshtigo,  25:  511,  123  N.  W.  157, 
140  Wis.  604. 

//.  Title  and  defenses. 

a.  Sufficiency  of  plaintiff's  title. 

1.  In  general. 

(See  also  same   heading   in   Digest   L.R.A. 
1-10.) 

Dispossession  of  homestead,  see  Homestead, 
5. 

5.  An  equitable  title  will  support  an  ac- 
tion of  ejectment.  Walker  v.  Miller,  i :  157, 
52  S.  E.   125,   139  N.  C.  448. 

6.  A  plftintiiT  in  ejectment  who  wholly 
fails  to  prove  title  or  prior  possession  in 
himself  cannot  recover  as  against  one  also 
without  title.  Florida  Finance  Co.  v.  Shef- 
field, 23:  1 102,  48  So.  42,  56  Fla.  285. 

7.  A  plaintiff  in  ejectment  cannot  re- 
cover merely  on  tlie  strength  of  a  deed  to 
himself,  without  showiing  that  his  grantor 
had  a  prinui  facie  right  to  recover;  and  a 
deed,  unaccompanied  by  evidence  of  the 
grantor's  seisin,  is  not  prima  facie  evidence 
of  the  grantor's  title,  as  title  must  be 
traced  back  either  to  the  ultimate  source, 
or  to  a  grantor  in  possession  at  or  near 
the  time  of  grant.  Florida  Finance  Co.  v. 
Sheffield,  23:  1102,  48  So.  42,  56  Fla.  285. 

8.  One  in  possession  of  real  estate  with- 
out right,  claiming  to  hold  as  mortgagee  in 
possession,  cannot  retain  possession  because 
there  is  some  doubt  whether  those  asserting 
the  right  to  possession  have  title  to  the 
whole  or  only  an  undivided  part  of  the  prop- 
erty. Barson  v.  Mulligan,  16:  151,  84  N.  E. 
75,  191  N.  Y.  306. 

9.  Heirs  suing  for  the  possession  and 
partition  of  real  estate  to  which  they  have 
acquired  title  by  descent  are  not  required  to 
show,  as  a  condition  precedent  to  recovery, 
that  the  land  is  not  subject  to  appropriation 
for  the  payment  of  the  decedent's  debts. 
O'Keefe  v.  Behrens,  8:  354,  85  Pac.  555,  73 
Kan.  469. 

10.  As  against  a  motion  for  nonsuit  in 
an  action  for  ejectment,  evidence  of  a  deed 
to  plaintiff  and  a  survey  jovering  the  prop- 


EJECTMENT,  II.  a,  2— III.     a. 


975 


erty,  with  proof  of  possession  thereunder, 
is  sufficient,  without  the  necessity  of  es- 
tablishing a  complete  record  title.  Cottrell 
V.  Pickering,  lo:  404,  88  Pac.  696,  32  Utah, 
62.  (Annotated) 

11.  Ejectment  cannot  be  maintained  on 
breach  of  condition  subsequent  requiring 
the  grantee  to  take  care  of  the  grantor  for 
life,  under  a  statute  providing  that  the 
plaintiff  must  have  a  right  of  possession 
when  he  begins  his  action,  where,  at  the 
commencement  of  the  action,  the  plaintiif 
has  not  notified  the  defendant  of  his  elec- 
tion to  take  advantage  of  the  breach,  either 
by  a  demand  for  possession,  or  by  some  oth- 
er act  equivalent  to  a  re-entry  for  condi- 
tion broken.  Mash  v.  Bloom,  14:  1187,  114 
N.  W.  457,  113  Wis.    646.  (Annotated) 

12.  An  instrument  by  which  one  grants, 
demises,  leases,  and  lets  to  another  a  cer- 
tain tract  of  land  for  a  term  of  years  tor 
the  sole  and  only  purpose  of  mining  and 
operating  for  oil,  gas,  and  other  minerals, 
confers  an  estate  in  the  land  which  may  be 
protected  against  one  claiming  a  title  para- 
moimt  to  that  of  the  lessor  by  ejectment, 
although  the  lessee  has  never  been  in  pos 
session.  Barnsdall  v.  Bradford  Gas  Co.  26: 
614,  74  Atl.  207,  225  Pa.  338. 
Easement. 

13.  Ejectment  will  not  lie  for  an  incor- 
poreal right  or  easement  to  use  land  as  a 
public  park.  Canton  Co.  v.  Baltimore,  11: 
129,  66  Atl.  679,  106  Md.  69.  (Annotated) 
Burial  lot. 

Effect  on  right  to  recover  damages  for 
wrongful  interference  with  bodies  in- 
terred therein,  see  Corpse,  11. 

14.  The  grantee  from  a  municipal  corpo- 
ration of  a  burial  lot  in  a  public  cemetery, 
who,  under  the  statutes  and  ordinances,  has 
only  a  right  of  sepulture,  has  not  an  inter- 
est for  which  ejectment  will  lie.  Anderson 
V.  Acheson,  9:  217,  110  N.  VV.  335,  132  Iowa, 
744. 

2.  Possessory   titles. 

(See  also   same   heading   in   Digest   L.R.A. 

15.  A  plaintiff  in  ejectment  may  recover 
upon  proof  of  prior  possession  alone,  against 
cne  who  subsequently  acquired  possession 
by  mere  entry  and  without  lawful  right. 
Moss  V.  Chappell,  11:  398,  54  S.  E.  968,  126 
Ga.  196. 

16.  One  in  actual  peaceable  possession  of 
land  when  another  enters  thereon  may  main- 
tain statutory  ejectment  by  showing  that 
he  was  in  actual  possession  under  color  of 
title,  and  that  his  grantor  was  in  actual 
possession  when  he  transferred  the  title, 
where  defendant  shows  no  title  in  himself 
nor  superior  outstanding  title  in  a  third  per- 
son, although  his  entry  is  under  color  of 
title,  and  the  land  was  originally  govern- 
ment land,  and  no  conveyance  by  the  gov- 
ernment is  shown.  Dodge  v.  Irvington  Land 
Co.  22:  iioo,  48  So.  383,  158  Ala.  91. 

(ii.nnotatcd) 
Digest  1-52  L.R.A.(N.S.) 


b.  Defenses. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

To  obtain  possession  of  land  held  adverse- 
ly for  statutory  period,  see  Adverse 
Possession,  84. 

Effect  on  jurisdiction  of  equity  to  reinstate 
action  for  sale  of  land,  of  fact  that 
deed  issued  in  former  action  may  be  a 
defense  in  action  of  ejectment  against 
owner,  see  Equity,  27. 

Failure  of  action  where  statute  of  limita- 
tions has  run  against  one  of  several 
joint  plaintiffs,  see  Limitation  of  Ac- 
tions, 85. 

Negation  of  defense  in  pleading,  see  Plead- 
ing, 191. 

17.  The  right  to  maintain  an  action  of 
ejectment  to  secure  the  removal  of  a  wire 
stretched  over  one's  property  is  not  lost 
by  its  voluntary  removal  after  the  action 
is  begun.  Butler  v.  Frontier  Teleph.  Co. 
11:  920,  79  N.  E.  719,  186  N.  Y.  486. 

18.  Permitting  a  recovery  in  ejectmi^nt 
against  one  of  the  defendants  who  was  not 
shown  to  be  connected  with  the  main  title 
in  the  controversy  is  not  erroneous  where 
such  title  was  good  against  all  except  plain- 
tiff', by  reason  of  adverse  possession.  Mc- 
Creary  v.  Coggeshall,  7:  433,  53  S.  E.  978, 
74  S.  C.  42. 

Equitable  defenses. 

19.  Where  a  deed  to  a  purchaser,  exe- 
cuted and  delivered  by  a  special  commis- 
sioner appointed  to  sell  at  a  judicial  sale, 
was  not  confirmed  by  the  court,  the  title 
thereby  conveyed,  being  equitable  in  char- 
acter, will  not  avail  its  owner  as  a  defense 
against  an  action  of  ejectment  by  the  own- 
ers of  the  legal  title  vested  in  them  until 

confirmation  of  such  sale.  McGinnis  v. 
Caldwell,  43=  630,  76  S.  E.  834,  71  W.  Va. 
375. 

c.  Proofs. 

(See  same  heading  in  Digest  L.R.A.  1-7 O.J 

III.  Verdict;     judgment;     relief     gen- 
erally. 

a.  Verdict;    judgment;    obtaining    pos- 
session. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Prejudicial    error    in    verdict,    see    Appeal 

AND  Error,  1531. 
Conclusiveness   of   judgment   generally,    see 

Judgment,  171,  172. 
Conclusiveness,   as  against  landlord   or  his 

grantee,  of  judgment  in  action  of  ejects 

ment    against    tenant,    see    Judgment, 

212,  237. 


976 


EJECTMENT,  III.  b— ELECTION. 


Recovery  in  ejectment  by  municipality  hold- 
ing title  to  bed  and  shore  of  river  as 
bar  to  suit  by  riparian  owner  to  en- 
join interference  with  access,  see  Jxjdg- 
MENT,  79. 

Adverse  judgment  in  action  to  recover  value 
of  timber  wrongfully  taken,  as  bar  to 
action  to  recover  possession  of  land,  see 
Judgment,  170. 

20.  A  judgment  establishing  defendant's 
title  in  an  action  for  possession  of  real 
property  is  erroneous,  although  plaintiff 
fails  to  establish  his  case,  if  there  is  no 
evidence  in  the  case  to  show  that  defendant 
had  the  title  or  right  of  possession.  Wicker 
V.  Jones,  40:  69,  74  S.  E.  801,  159  N.  C.  102. 

21.  The  recovery  of  a  tenant  in  common 
in  ejectment  against  a  stranger  in  posses- 
sion must  be  limited  to  his  interest  in  the 
property.  Williams  v.  Coal  Creek  Min.  & 
Mfg.  Co.  6:  710,  93  S.  W.  572,  115  Tenn. 
578.  (Annotated) 

22.  A  tenant  in  common  suing  separate- 
ly in  ejectment  may,  if  the  defendant  shows 
no  title,  recover  possession  of  the  entire 
estate,  in  subordination,  however,  to  the 
right  of  his  cotenants.  De  Bergere  v. 
Chaves,  51:  50,  93  Pac.  762,   14  N.  M.  352. 

( Annotated ) 

b.  Mesne    profits;    improvements;    em- 
blements. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  of  owner  to  maintain  trespass  for 
wrongful  entry  and  recover  mesne 
profits  after  disseisor  has  abandoned 
premises,  see  Trespass,  24. 

23.  Notice  of  a  claim  for  mesne  profits 
should  be  filed  prior  to  the  trial  to  per- 
mit their  recovery  by  plaintiffs  in  eject- 
ment. Alexander  v.  Shalala,  31:  844,  77 
Atl.  554,  228  Pa.  297. 

24.  Where  a  deed  by  a  married  woman 
is  void,  and  no  principles  of  estoppel  ap- 
ply, defendants,  in  an  action  by  her  to  re- 
cover possession  of  the  property,  are  not 
entitled  to  a  conditional  verdict  to  cover 
the  amount  of  their  improvements.  Alex- 
ander V.  Shalala,  31:  844,  77  Atl.  554,  228 
Pa.  297. 

25.  In  an  action  by  a  married  woman  to 
recover  possession  of  her  real  estate  con- 
veyed by  a  deed  in  which  her  husband  did 
not  join,  under  a  statute  permitting  her  to 
sell  her  real  estate  in  the  same  manner  as 
if  sole,  except  that  her  husband  must  join 
in  the  deed,  a  conditional  verdict  should 
be  rendered  designating  the  amount  to 
which  the  vendee  is  entitled  for  advance- 
ments, improvements,  and  other  charges 
for  which  he  should  be  reimbursed.  McCoy 
v.  Niblick,  30:  355,  70  Atl.  577,  221  Pa. 
123. 

26.  One  in  lawful  possession  of  land  un- 
der a  tax-sale  certificate,  who  has  made 
valuable  improvements,  cannot  be  evicted 
by  the  landowner,  who  has  redeemed  the 
Digest  1-52  I<.RJ^.(N.S.) 


land,  until  paid  for  the  improvements.  Mc- 
Donald V.  Kelson,  28:  1080,  98  Pac.  772,  79 
Kan.  105. 

27.  A  tenant  who  was  under  no  obliga- 
tion to  pay  taxes  on  the  leased  property, 
and  who  acquired  a  tax  deed  thereto,  good 
upon  its  face,  but  which  was  irregularly 
issued,  and  is  invalid  as  a  conveyance  of 
title,  is  entitled  to  the  benefit  of  the  oc- 
cupying claimants'  act,  and  cannot  be  dis- 
possessed by  his  landlord  without  being 
compensated  for  lasting  and  valuable  im- 
provements which  he  made  before  an  ac- 
tion of  ejectment  was  brought  against  him. 
Fitch  v.  Douglass,  12:  172,  90  Pac.  769,  76 
Kan.  (iO. 

28.  The  breaking  and  reducing  of  wild 
lands  to  cultivation  constitutes  a  "perma- 
nent improvement"  for  which  compensation 
may  be  claimed  by  one  in  possession  of 
lands  under  a  tax  deed,  wlio  has  been  de- 
feated of  the  possession  by  the  holder  of  the 
legal  title.  Gibson  v.  Fields,  20:378,  98 
Pac.    1112,  79  Kan.   38.  (Annotated) 

29.  Upon  the  adjudication  of  the  coun- 
terclaims where  one  in  possession  of  land 
under  a  tax  deed  has  been  defeated  of  the 
possession  by  the  holder  of  the  legal  title, 
and  claims  compensation  for  permanent  im- 
provements and  taxes  paid,  only  the  reason- 
able rent  of  the  premises  without  the  im- 
provements should  be  oflset,  and  not  rent 
for  the  premises  as  increased  by  the  im- 
provements, since  the  one  dispossessed  should 
not  be  made  to  pay  rent  for  improvements 
made  by  himself.  Gibson  v.  Fields,  20:  378, 
98  Pac.  1112,  79  Kan.  38. 

Crops. 

30.  A  party  who  has  recovered  posses- 
sion of  land  held  adversely  is  entitled  to  a 
matured  crop  of  corn  standing  unsevered  on 
such  land  at  the  time  of  the  final  judgment 
of  ouster  and  delivery  of  possession  of  the 
premises  to  him  under  a  writ  of  restitu- 
tion. Hartshorne  v.  Ingels,  23:  531,  101 
Pac.  1045,  23  Okla.  535.  (Annotated) 

IV.  Statutory  new  trial. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 


EJXJSDEM  GENERIS. 

See  Statutes,  196,  197. 


EJECTION. 


Between  counts,  see  Appeal  and  Error,  369, 

651,      1486;      FORGERY,    4;     INDICTMENT, 

ETC.,  40;  Trial,  I.  b. 
Discretion    as    to    granting    or    overruling 

motion    to    require     election     between 

counts,  see  Appeal  and  Error,  651.     , 
Of  remedies,  see  Election  of  Remedies. 
To  trv  case  to  jury,  see  Appeat.  and  Ebbob, 

1509. 


ELECTION  DISTRICTS— ELECTION   OF  REMEDIES,  I. 


977 


By  insurance  company  to  pay  amount  of 
policy  on  life  of  one  who  has  disap- 
peared in  order  to  avoid  suit,  see  Coai- 

iv        PROMISE    AND    SEXTTLEMENT,    8. 

In  case  of  misjoinder  of  parties,  see  Par- 
ties, 207. 

As  to  which  of  two  defendants  improperly 
joined  plaintiff  will  proceed  against,  see 
Dismissal  and  Discontinuance,  9. 

Between  inconsistent  pleadings,  see  Plead- 
ing, 650. 

By  beneficiary  to  receive  principal  of  fund 
which  will  directs  to  be  used  in  buying 
annuity,  see  Annuities,  1. 

Of  widow  between  marriage  settlement  and 
rights  under  statute,  see  Dower,  33. 

Estoppel  of  widow  to  elect,  see  Estoppel, 
64. 

To  take  under  or  against  will,  see  Parties, 
173;  Wills,  III.  i. 

Effect  of  widow's  election  against  will  to 
accelerate   remainder,   see   Wills,    345. 

Presumption  as  to  election  to  take  under 
will,  see  Evidence,  687,  688. 

1.  A  man  who,  after  the  death  of  his 
wife,  attempts  to  assert  homestead  rights 
in  a  parcel  of  land  which  did  not  belong 
to  her,  under  a  mistaken  belief  as  to  her 
title,  does  not,  in  case  she  had  no  title 
thereto,  elect  to  waive  his  distributive  rights 
in  other  parcels  which  she  did  own.  Husted 
V.  Rollins,  42:  378,  137  N.  W.  462,  156  Iowa, 
546. 


ELECTION  DISTRICTS. 

Laches  in  complaining  of  unconstitutional 
apportionment  of  state  into,  see  Limi- 
tation of  Actions,  62, 


ELECTION  FRAUDS. 


See  Elections,  III.  d. 


ELECTION  OF  REMEDIES. 

J.  Choice,    1-17. 
II.  Effect;  pursuing  two  remedies,  IS— 
45. 

Effect  of  other  remedy  on  right  to  certio- 
rari, see  Certiorari,  I.  b. 

Constitutionality  of  statute  giving  employ- 
ees option  between  statutory  and  cora- 
mon-law  rights,  see  Constitutional 
Law,  811. 

In  criminal  prosecution,  see  Criminal  Law, 
62. 

By  owner  of  equitable  title  to  land  withheld 
from  him,  see  Equity,  93. 

By  manufacturer  of  goods  upon  purcliaser's 
refusal  to  accept  them,  see  Sale,   125. 

Question  whether  election  has  been  made  as 
one  for  jury,  see  Trial,  598. 

Digest  1-52  L.R.A.(N.S.) 


62 


I.  Choice. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Estoppel  to  complain  of,  see  Appeal  and 
Error,  537. 

Choice  of  remedies  in  case  of  election  con- 
test, see  Courts,  200. 

For  collection  of  tax,  see  Taxes,  202-204. 

By  cestui  que  trust,  see  Trusts,  147-149. 

1.  The  value  of  services  performed  in 
consideration  of  a  parol  agreement  to  con- 
vey real  estate  cannot  be  recovered  in  an 
action  for  damages  for  breach  of  the  con- 
tract. Jackson  v.  Stearns,  37:  639,  113  Pac. 
30,  58  Or.  57. 

2.  A  statute  forbidding  a  deficiency 
judgment  on  a  mortgage  given  to  secure 
the  purchase  price  of  real  estate,  or  the 
note  or  obligation  secured  by  the  same, 
does  not  prevent  a  suit  on  the  note  inde- 
pendently of  the  mortgage,  in  which  a  per- 
sonal judgment  for  its  full  amount  may 
be  given.  Page  v.  Ford,  45:  247,  131  Pac. 
1013,  65  Or.  450.  (Annotated) 

3.  Where  property,  though  exempt 
from  the  general  debts  and  obligations  of 
the  owner,  is  subject  to  the  payment  of  a 
particular  debt,  the  creditor  has  the  elec- 
tion of  remedies  to  subject  the  same  to  the 
payment  of  his  claim:  (1)  He  may  pro- 
ceed in  equity,  setting  up  all  the  facts,  and 
have  the  amount  of  the  debt  decreed  a 
specific  lien  upon  the  property;  (2)  he  may 
proceed  by  attachment;  or  (3)  by  an  exe- 
cution issued  upon  a  judgment  in  an  ordi- 
nary action  for  the  recovery  of  the  debt. 
Gregory  Co.  v.  *„ale,  37:  156,  133  N.  W.  75, 
115  Minn.   508. 

4.  In  an  action  against  both  an  alleged 
agent  and  liis  undisclosed  principal,  a  dis- 
missal at  the  close  of  the  plaintiffs'  case, 
as  to  the  alleged  agent,  in  response  to  a 
motion  that  plaintiffs  be  required  to  elect, 
is  equivalent  to  an  election  to  hold  the  al- 
leged undisclosed  principal.  Gay  v.  Uren, 
26:  742,  123  N.  W.  295,  109  Minn.  101. 

5.  One  who  sells  stock  to  A  as  prin- 
cipal, and  later  is  informed  by  A  that  he 
represented  B,  may  bring  an  action  to  re- 
cover for  breach  of  the  contract,  against 
both  A  and  B,  and  cannot  be  compelled  to 
elect  as  between  the  defendants,  who  have 
answered  denying  the  contract  and  the 
agency,  before  the  evidence  has  disclosed 
whether  or  not  there  was  a  sale  to  A,  and 
whether  or  not  the  relation  of  principal  and 
agent  existed  between  A  and  B.  Gay  v. 
Uren,  26:  742,  123  N.  W.  295,  109  Minn."  101. 

(Annotated) 

6.  A  theater  ticket  is  a  mere  license,  for 
the  revocation  of  which  before  the  holder 
has  actually  been  given  and  has  taken  his 
seat,  the  only  remedy  is  in  assumpsit  for 
breach  of  the  contract.  Horney  v.  Nixon, 
i:  1184,  61  Atl.  1088,  213  Pa.  20. 

(Annotated) 
Exclnsiveness  of  statutory  remedy. 
See  also  Trusts,  147. 

7.  The  remedies  pnscribed  by  §  2,  chap. 


978 


1 1'  If  u-  ELECTION  OF  REMEDIES,  II. 


62d  of  the  W.  Va.  Code  of  1906,  requiring 
the  plugging  of  abandoned  oil  or  gas  wells, 
and  prescribing  a  penalty  for  noncompliance 
therewith,  are  not  exclusive.  Atkinson  v. 
Virginia  Oil  &  Gas  Co.  48:  167,  79  S.  E.  647, 
72  W.  Va.  707. 

8.  A  coramon-law^  action  for  infringe- 
ment of  a  copyrighted  map  may  be  main- 
tained under  the  section  of  the  Federal 
statutes  vesting  title  to  sucli  property  in 
the  author,  notwithstanding  another  section 
of  the  statutes  creates  a  qui  tarn  action 
to  enforce  a  penalty  for  its  infringement, 
and  another  statute  provides  for  an  in- 
junction against  future  infringements  and 
for  an  account  of  profits.  Walker  v.  Globe 
Newspaper  Co.  2:  913,  140  Fed.  305,  72  C. 
C.  A.  77.  (Annotated) 

9.  The  remedy  afforded  by  statute  to 
one  forcibly  expelled  by  the  owner  from  the 
wrongful  possession  of  land  is  exclusive. 
Walker  v.  Chansior,  17:  455,  94  Pac.  606, 
153  Cal.   118. 

10.  An  action  by  an  administrator  for 
the  benefit  of  the  parents  of  a  minor  killed 
by  another's  negligence  cannot  be  mairi- 
tained  as  a  common-law  action,  where  the 
statute  gives  a  right  of  action  in  such  cases 
to  the  father,  or,  under  certain  circum- 
stances, to  the  mother.  W'infree  v.  North- 
ern P.  R.  Co.  44:  841,  173  Fed.  65,  97  C.  C. 
A.  392. 

11.  A  statute  providing  for  the  fixing  by 
the  railroad  commission  of  a  time  within 
which  cars  for  the  transportation  of  freight 
should  be  furnished  after  written  applica- 
tion, and  the  per  diem  penalty  for  failure 
to  furnish  them  accordingly,  does  not  make 
that  remedy  exclusive  of  the  common-law 
action  for  damages  caused  by  a  breach  by 
the  railroad  company  of  its  common-law 
duty  as  a  common  carrier  to  furnish  cars 
for  such  purpose  within  a  reasonable  time 
after  demand.  Southern  R.  Co.  v.  Moore, 
26:  851,  67  S.  E.  85,  133  Ga.  806. 

(Annotated) 
■  '  12.  A  statute  making  the  assets  of  ex- 
pired, dissolved,  and  insolvent  corporations 
trust  funds  for  the  benefit  of  their  creditors 
and  stockholders,  and  authorizing  suits  in 
equity  to  wind  them  up,  does  not  thereby 
provide  an  exclusive  remedy,  or  of  itself 
take  away  the  right  to  proceed  to  judg 
ment  and  execution  at  law.  Billmyer  Lum- 
ber Co.  V.  Merchants*  Coal  Co.  26:  iioi,  66 
S.  E.  1073,  66  W.  Va.  696. 
I^eecal  or  equitable. 

EflTect  of  remedy  at  law  on  equitable  juris- 
diction, see  Equity,  I.  b. 
Choice  by  cestui  que  trust,  see  Tbusts.  147, 

149. 
See  also  supra,  12. 

13.  In  case  of  a  breach  of  agreement  not 
to  compete  with  one  purchasing  a  business 
and  good  will  from  the  contractor,  the  buyer 
may  elect  to  seek  an  injunction  or  damages. 
Bradford  v.  Montgomery  Furniture  Co.  9: 
979,  92  S.  W.  1104,  115  Tenn.  610. 
Tort  or  contract. 
Compulsory  election  of,  as  reversible  error, 

see  Appeal  and  Error,  1039. 
Digest   1-52  L.R.A.(N.S.) 


14.  A  passenger  injured  by  the  negli- 
gence of  the  carrier  may  sue  in  tort  not- 
withstanding he  is  traveling  under  a  writ- 
ten contract.  Lake  Shore  &  M.  S.  R.  Co.  v. 
Teeters,  5:425,  77  N.   E.  599,   166  Ind.  335. 

15.  The  mere  acceptance  by  a  railroad 
company  of  a  requisition  from  a  siiipper  for 
cars  does  not  constitute  a  contract  a  breach 
of  which  will  give  the  shipper  a  cause  of 
action  ex  contractu.  Di  Giorgio  Importing 
&  S.  S.  Co.  V.  Pennsylvania  R.  Co.  8:  108, 
65  Atl.  425,  104  Md.  693. 

16.  One  who  sells  goods  in  reliance  upon 
material  misrepresentations  by  the  purchas- 
er may,  on  rescinding  the  sale  on  discovery 
of  the  fraud,  reclaim  all  tlie  property  which 
can  be  recovered,  and  he  has  a  right  of  ac- 
tion against  the  purchaser  as  to  that  which 
he  cannot  recover,  based  on  the  theory  of  the 
conversion  by  the  purchaser  of  the  goods  not 
found,  or  an  action  based  on  the  contract 
implied  by  law,  where  the  purchaser  has  dis- 
posed of  the  goods  for  money  and  the  seller 
has  waived  the  tort;  but  he  canno*  proceed 
both  under  the  contract  of  sale  and  against 
it.  Silvey  v.  Tift,  i:  386,  51  R.  E.  748,  123 
Ga.  804. 

17.  One  who  waives  the  trespass  of  an- 
other who  has  entered  upon  his  land  and  cut 
timber  therefrom,  by  bringing  an  action  for 
the  value  of  the  timber,  cannot  subsequently 
maintain  another  action  to  recover  for  the 
trespass.  Roberts  v.  Moss,  17:  280,  106  S. 
W.  297,  127  Ky.  657. 

II.  Effect;  pursuing  two  remedies. 

(See  also   same  heading   in  Digest  Ij.R.A. 
1-10.) 

Effect   of   splitting   action,   see  Action    or 

Suit,  II.  c. 
Suing    on    implied    contract    as    waiver    of 

other  remedies,  see  Contracts,  16. 
Effect  of  immediate  bringing  of  action  for 

wrongful  discharge,  see  Damages.  707. 
Proceedings   for  judicial  separation  as  bar 

to   alimentary    allowance,   see   Divorce 

and  Separation,  85. 
As  to  estoppel  by  inconsistent  acts  or  claims 

in  judicial  proceedings,   see  Estoppel, 

III.  j,  3. 
Bar  of  former  judgment,  see  Judgment,  II. 
See  also  supra,  16. 

18.  The  choice  of  a  fancied  remedy  that 
never  existed,  and  the  futile  pursuit  of  it 
until  the  court  adjudges  that  it  never  had 
existence,  is  no  defense  to  an  action  to  en- 
force an  actual  remedy  inconsistent  with 
that  first  invoked.  Harrill  v.  Davis,  22: 
1153,  168  Fed.  187,  94  C.  C.  A.  47. 

(Annotated) 

19.  Pursuing  one  joint  tort  feasor  will 
not  prevent  a  subsequent  suit  against  the 
other  on  the  theory  of  election.  Old  Do- 
minion Copper  Min.  &  Smelting  Co.  v.  Bige- 
low.   40:  314,   89  N.   E.    193.   203  Mass.   159. 

20.  Under  the  decisions  of  the  supreme 
court  of  Kansas  the  commencement  of  an  ac- 
tion to  enforce  the  liability  of  a  stockholder. 


ELECTION  OF  REMEDIES,  II. 


979 


■either  upon  the  ground  that  the  corporation 
has  suspended  business  for  a  year,  or  be- 
cause of  the  recovery  of  a  judgment  against 
the  corporation  and  the  return  of  an  exe- 
cution thereon  unsatisfied,  is  a  bar  to  the 
prosecution  of  an  action  between  tiie  same 
parties  to  recover  against  a  stockholder  in 
the  same  corporation  upon  the  other  ground. 
Harrison  v.  Remington  Paper  Co.  3:  954,  140 
Fed.  385,   72   C.   C.   A.  405. 

21.  An  action  by  an  infant  against  his 
next  friend  for  money  turned  over  to  him 
by  attorneys  in  an  action  brought  for  the 
benefit  of  the  infant  is  not  inconsistent 
with  an  action  against  the  attorneys  for 
wrongfully  making  the  payment,  so  that,  in 
case  no  satisfaction  can  be  hud  of  the  judg- 
ment in  the  first  action,  the  second  may  be 
maintained.  Wood  v.  Claiborne,  11:913, 
102  S.  W.  219,  82  Ark.  514. 

22.  Obtaining  a  judgment  and  execution 
to  enforce  the  alleged  lien  under  a  clause  in 
a  lease  giving  the  landlord  the  first  lien  on 
all  crops  and  chattels  of  the  lessee  for  rent 
and  damages  precludes  the  maintenance  of 
a  replevin  suit  to  obtain  possession  of  the 
property  on  the  theory  that  the  contract 
was  a  chattel  mortgage,  in  the  absence  of 
anything  to  show  that  the  property  could 
not  be  secured  by  the  sheriff  under  an  execu- 
tion. VVilmore  v.  Mintz,  20:  259,  95  Pac. 
636,  42  Colo.  328.  (Annotated) 

23.  A  trustee  in  bankruptcy,  who,  with 
full  knowledge  of  the  facts,  institutes  pro- 
ceedings to  reach  money  concealed  by  the 
bankrupt,  and  obtains  an  order  for  a  sum 
found  by  charging  the  bankrupt  with  the 
whole  of  a  sum  received  by  him  for  accounts 
sold  with  intention  to  defraud  creditors, 
thereby  elects  to  confirm  the  sale,  and  is 
precluded  from  subsequently  proceeding 
against  the  transferee  to  recover  possession 
of  the  accounts.  Thomas  v.  Sugerman,  15: 
1267,  157  Fed.  669,  85  C.  C.  A.  337. 

24.  The  trustee  in  bankruptcy  does  not, 
by  obtaining  a  judgment  against  the  bank- 
rupt for  the  proceeds  of  a  transfer  in  fraud 
of  creditors,  make  an  election  which  pre- 
vents him  from  suing  in  equity  to  set  aside 
such  transfer.  Thomas  v.  Sugarman,  29: 
250,  30  Sup.  Ct.  Rep.  650,  218  U.  S.  129,  54 
L.  ed.   967. 

25.  The  filing  by  a  vendor  who  has  tak- 
en notes  for  the  purchase  price,  reserving 
title,  of  a  plea  of  intervention  in  a  suit 
for  the  appointment  of  a  receiver  to  take 
charge  of  the  property  of  the  debtor,  which 
asks  for  the  foreclosure  of  the  notes  as  if 
they  were  chattel  mortgages,  and  a  sale 
of  the  property,  but  which  also  sets  up  all 
the  facts  as  to  the  sale  and  the  xeservation 
of  title  and  prays  for  general  relief,  does 
not  constitute  such  an  election  to  treat  the 
notes  as  chattel  mortgages  as  will  preclude 
him  from  filing  an  amended  plea  asserting 
his  title  to  the  property  and  right  to  its 
possession.  Ardmore  Nat.  Bank  v.  Briggs 
Machinery  &  S.  Co.  23:  1074,  94  Pac.  533, 
20  Okla.  427. 

26.  A  woman  does  not  lose  her  rights 
under  a  deed  from  her  husband  which  he 
destroyed  prior  to  his  death  by  the  fact 
Digest  1-52  L.R.A.(N.S.) 


I  that,  in  a  proceeding  to  secure  her  rights 
in  his  lands,  she  claimed  only  a  distributive 
share  in  such  property,  where  she  amends 
her  petition  and  claims  the  whole  estate 
covered  by  the  deed  as  soon  as  she  dis- 
covers tiiat  the  destruction  of  the  deed  did 
not  affect  her  rights.  Matheson  v.  Mathe- 
son,  18:  1167,  117  N.  W.  755,  139  Iowa,  511. 

27.  The  assertion  of  a  claim  to  a 
widow's  share  in  a  decedent's  estate  which 
fails  for  lack  of  proof  of  marriage  is  not  an 
election  of  remedy  so  as  to  bar  a  claim 
against  the  estate  for  services  rendered. 
Asher  v.  Pegg,  30:  890,  123  N.  W.  739,  146 
Iowa,  541. 

28.  The  presentation  in  administration 
proceedings  upon  the  estate  of  one  to  whom 
property  was  devised  upon  condition  that 
he  make  certain  annual  payments  to  testa- 
tor's wife,  which  are  made  a  lien  on  the 
property,  of  a  claim  for  arrears  not  paid, 
and  the  acceptance  of  payment  of  such  in- 
stalments with  interest  as  were  not  barred 
by  limitation,  is  not  an  election  of  reme- 
dies which  will  prevent  enforcement  of  the 
lien  against  the  property  for  the  residue 
of  the  arrears.  Stringer  v.  Gamble,  30: 
815,  118   N.   W.  979,   155  Mich.  295. 

29.  Instituting  an  equitable  proceed- 
ing to  settle  the  affairs  of  a  partnership 
of  which  plaintiff  claimed  to  be  a  member 
does  not,  prior  to  the  securing  of  some  bene- 
fit therefrom,  amount  to  an  election  which 
will  bar  an  action  at  law  to  recover  the 
contract  price  of  plaintiff's  interest,  which 
was  alleged  to  have  been  sold  and  de- 
livered to  defendant.  Register  v.  Car- 
michael,   34:  309,  53  So.  799,  169  Ala.   588. 

(Annotated) 

30.  Owners  of  real  estate  who  have  put 
the  title  in  one  of  them  for  sale  are  es- 
topped from  suing  the  brokers  for  the  com- 
mission retained  by  him  for  effecting  the 
sale,  on  the  theory  that  the  contract  with 
them  was  illegal  beeause  they  agreed  to  di- 
vide their  commission  with  the  trustee,  by 
instituting  an  action  against  the  latter  to 
compel  an  accounting  of  the  share  of  com- 
mission received  by  him,  since  they  thereby 
confirmed  the  contract.  Heckscher  v.  Blan- 
ton,  37:  923,  69  S.  E.  1045,  111  Va.  648. 

31.  A  proceeding  to  foreclose  a  mort- 
gage on  real  estate,  the  deed  to  which  was 
placed  in  escrow  awaiting  the  performance 
of  conditions  precedent,  on  the  theory  that 
the  conditions  have  been  complied  with,  so 
that  the  contract  is  in  force,  is  not  an  elec- 
tion which  will  prevent  the  vendor  from 
recovering  the  proceeds  of  a  policy  of  in- 
surance on  the  building,  on  the  theory  that 
at  the  time  of  the  fire,  ten  months  earlier, 
the  conditions  had  not  been  performed  so 
that  the  title  remained  in  the  vendor. 
Pomeroy  v.  ^tna  Ins.  Co.  38:  142,  120  Pac. 
344,  86  Kan.  214. 

32.  The  mere  fact  that  the  sendee  of  a 
forged  telegram  allows  an  action  to  be 
brought  by  an  undisclosed  principal  for  the 
resulting  damages  does  not  constitute  an 
election  of  remedies  which  will  prevent  its 
maintaining  the  action  in  case  the  other 
is    dismissed    before    judgment.     Wells    v. 


980 


ELECTIONS. 


Western  U.  Teleg.   Co.  24:  1045,  123  N.  W. 

371,  144  Iowa,  605. 

Actions  on  contract  generally. 

33.  Bringing  an  action  upon  express  con- 
tract for  electric  light  furnished  a  city  is 
not  an  election  which  will  preclude  an  ac- 
tion upon  quantum  meruit  in  case  the  first 
action  is  dismissed  for  failure  to  prove  com- 
pliance with  the  contract.  Water,  Light, 
&  Gas  Co.  V.  Hutchinson,  19:  219,  160  Fed. 
41,  90  C.  C.  A.  547. 

34.  If  one  of  two  contracting  parties 
claims  that  the  other  has  committed  a 
breach  of  the  contract,  he  cannot,  in  the  same 
action,  both  treat  the  contract  as  rescinded 
and  sue  for  the  amount  paid  by  him  to  the 
other  party,  and  at  the  same  time  rely  on 
the  contract  as  existing.  Timmerman  v. 
Stanley,  i:  379,  51  S.  E.  760,  123  Ga.  850. 

35.  Enforcement,  by  action,  of  benefits 
due  under  a  contract  by  which  property  is 
conveyed  in  consideration  of  support,  does 
not  preclude,  on  the  theory  of  election  of 
remedies,  an  action  to  rescind  the  contract 
for  subsequent  breaches.  Gall  v.  Gall, 
5:  603,  105  N.  W.  953,  126  Wis.  390. 

( Annotated ) 

36.  That  at  the  time  an  action  is 
brought  for  the  benefits  due  under  a  con- 
tract for  support  in  consideration  of  the 
conveyance  of  property,  breaches  exist  sub- 
sequent to  those  included  in  the  action; 
and  that,  after  recovery,  plaintiff  accepts 
benefits  which  have  so  accrue!, — do  not  pre- 
clude an  action,  based  on  still  later 
breaches,  for  a  cancelation  of  the  con- 
tract. Gall  V.  Gall,  5:  603,  105  N.  W.  953, 
126  Wis.  390. 

37.  A  mortgagee,  who  elects  to  treat  the 
mortgage  due  for  default  in  payment  of  in- 
terest, cannot,  after  the  mortgagor  has 
changed  his  position  by  negotiating  a  new 
loan  to  take  up  the  mortgage  and  interest, 
again  elect  to  regard  the  contract  as  still 
in  force,  so  as  to  entitle  himself  to  enforce 
a  provision  therein  for  a  bonus  in  case  pay- 
ment is  accepted  before  the  mortgage  be- 
comes due.  Kilpatrick  v.  Germania  L.  Ins. 
Co.  2:  574,  75  N.  E.  1124,  183  N.  Y.  163. 

38.  Recovery  of  a  judgment  in  an  ac- 
tion to  recover  the  value  of  labor  and  ma- 
terials, brought  against  one  who  was  in 
fact  agent  of  an  undiscovered  principal, 
bars  an  action  against  the  principal,  where 
the  suit  was  brought  against  the  agent  with 
full  knowledge  of  the  facts;  but  an  unsatis- 
fied judgment  against  the  agent  is  not  a 
bar  to  an  action  against  the  principal, 
when  discovered,  if  the  judgment  creditor 
was  ignorant  of  the  facts  as  to  the  agency 
when  he  prosecuted  his  action  against  the 
agent.  Lindquist  v.  Dickson,  6:  729,  107  N. 
W.  958,  98  Minn.  369.  (Annotated) 

39.  Pressing  to  judgment,  even  though  it 
is  adverse,  a  claim  against  the  owner  of  a 
plantation  for  services  rendered  tenants  at 
the  instance  of  the  owner  s  agent,  for  which 
there  was  a  right  of  action  against  either, 
will  bar  an  action  to  hold  the  agent  per- 
sonally liable,  where  there  was  full  knowl- 
edge of  tlie  facts  and  law  governing  the 
Digest   1-52  Ii.R.A.(N.S.) 


case.      Murphy    v.   Hutchinson,    21:  785,    48 
So.  178,  93  Miss.  643.  (Annotated) 

40.  One  having  a  right  of  action  in  as- 
sumpsit for  the  price  of  goods  is  not,  by 
mistakenly  bringing  trover  for  their  posses- 
sion, precluded  from  maintaining  an  action 
of  assumpsit.  Clark  v.  Heath,  8:  144,  64 
Atl.   913,   101   Me.  530.  (Annotated) 

41.  A  vendor  who  is  to  retain  title  until 
the  purchase  price  is  fully  paid  and  a  bill 
of  sale  given,  and  who,  upon  nonpayment  of 
an  instalment  when  due,  brings  suit  against 
the  vendee  for  the  balance  due,  arresting 
and  holding  the  body  of  the  debtor  until  he 
releases  himself  by  taking  the  statutory 
oath,  is  precluded  from  subsequently  main- 
taining replevin  for  the  property,  allhoiigli 
he  failed  to  enter  the  writ  in  the  first  suit. 
Frisch  v.  Wells,  23:  144,  86  N.  E.  775,  200 
Mass.  429.  (Annotated) 
Contracts  procured  by  fraud. 

42.  Recovering  an  uncoUectablu  judgment 
for  the  purchase  price  of  property  procured 
by  fraud  is  no  bar  to  an  action  for  the 
fraud.  Standard  Sewing  Mach.  Co.  v. 
0 wings,  8:  582,  53  S.  E.  345,  140  N.  C.  503. 

(Annotated) 

43.  One  who  has  sold  and  transferred 
personal  property  to  another,  and  received  a 
portion  of  the  price,  has  no  right  to  sue 
him  and  others  to  whom  he  has  transferred 
the  property,  for  conspiracy  to  defraud  her 
of  her  property,  alleging  the  sale  and  trans- 
fer in  the  complaint;  and  such  attempted 
action  will  not,  therefore,  on  the  theory  of 
election  of  remedies,  bar  her  right  to  sue 
her  vendee  for  the  unpaid  purchase  money. 
Henry  v.  Herrington,  20:  249,  86  N.  E.  29, 
193  N.  Y.  218. 

44.  Proving  a  claim  against  a  bankrupt's 
estate,  and  accepting  the  aividends  tliere- 
on  in  composition  of  it,  does  not  bar  an  ac- 
tion for  deceit  in  procuring  by  false  repre- 
sentations the  property  on  which  the  claim 
was  founded.  Talcott  v.  Friend,  43:  649,  179 
Fed.  676,  103  C.  C.  A.  80. 

45.  A  delay  of  four  months  after  the 
discovery  of  the  fraud  by  one  who  lias  been 
defrauded  into  a  contract  for  the  purchase 
of  land,  in  electing  to  rescind  the  contract, 
affords  plenary  proof  of  an  election  not  to 
rescind  which  is  final;  especially  where 
there  is  no  adequate  excuse  for  the  delay 
consistent  with  promptitude  of  action. 
Faulkner  v.  Wassmer  (N.  J.  Err.  &  App.) 
30:  872,  77  Atl.  341,  77  N.  J.  Eq.  537. 

(Annotated) 


ELECTIOXS. 


7.  Right   of  suffrage   and   regulation 
thereof  in.  general,   1—4. 
II.  Qualifications   of  voters,    5—17. 

a.  In  general;  residence,   6—14. 

b.  Registration,   15—17. 
III.  Elections,   18—60. 

a.  In  general,   18—26. 

b.  Ballots,  27-54. 

1.  Preparation;   official   Ojcts^ 
27-39. 


ELECTIONS,  I.,  II.  a. 


981 


III.  h — continued. 

2.  Canting ;  acts  of  voter,  40— 

4=9. 

3.  Distinguishing  marks,  50— 

54. 

a.  In  general,  50,  51. 

b.  Voter's  marJcs,  52—54. 

c.  Result;    canvassing,  '55—57. 

d.  Election    frauds;    crimes,    5S— 

60. 
IV.  Nominations;   primaries;   political 
committees,  61—81. 
V.  Contests,   82—85. 
VI.  Violation  of  election  laws,  80. 

On  question  of  issuance  of  municipal  bonds, 
see  Bonds,  III.  b,  3. 

At  stockholders'  meeting,  see  Corporations, 
V.  g. 

Of  corporate  officers,  see  Cokporattons,  1.32. 

Election  of  chairman  at  stockholder's  meet- 
ing, see  Corporations,  371. 

Power  of  court  to  order  new  election  for 
trustees  of  religious  society,  see  Courts, 
181. 

As  to  local  option  elections,  see  Intoxicat- 
ing Liquors,  I.  c. 

Of  judges,  see  Judges,  II. 

Validity  of  submission  to  voters  of  proposed 
cliarter  amendment,  see  Municipal 
Corporations,  18. 

Vote  of  city  for  incurring  indebtedness,  see 
Municipal  Corporations,  257,  275. 

Of  officers  generally,  see  Officers,  I.  b. 

Sale  of  vote  as  consideration  for  note,  see 
Bills  and  Notes,  155. 

Delay  preventing  passenger  from  reaching 
destination  in  time  to  vote,  see  Car- 
riers,  194. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,   175. 

Statute  forbidding  nomination,  indorsement, 
or  criticism  of  certain  candidates  by 
any  political  party,  see  Constitutional 
Law,  557,  827. 

Statute  as  to  report  of  civic  league  upon 
candidate  for  public  office,  see  Con- 
stitutional Law,  756. 

Validity  of  contract  with  vote  Jauyer  to 
prosecute  sellers  for  statutory  rewards, 
see  Contracts,  599. 

Court's  power  to  review  matters  as  to,  see 
Courts,  I.  c,  2,  d. 

Original  jurisdiction  of  Supreme  Court  over 
questions  aflfecting,  see  Courts,  221- 
226. 

Jurisdiction  of  equity  to  protect  right  to 
vote,  see  Equity,  4. 

Judicial  notice  as  to,  see  Evidence,   14. 

Locating  voting  booth  in  highway,"8ee  High- 
ways, 78,  220. 

Election  day  as  holiday,  see  Holidays,  1. 

Initiative,  referendum  or  recall  election,  see 
Initiative,   Referendum  and  Recall. 

Injunction  as  to,  see  Injunction,  I  h. 

Mandamus  concerning,  see  Mandamus,  I.  f. 

Partial  invalidity  of  statute  as  to,  see  Stat- 
utes, 68-72. 

Title  of  statute  as  to,  see  Statufes,  100- 
102. 

Digest  1-52  L.R.A.(N.S.) 


Special  legislation  as  to,  see  Statutes,  181, 

184. 
Construction  of  statute  as  to,  see  Statutes, 

226,  253-256. 

/.  Bight    of    suffrage    and    regulation 
thereof  in  general. 

(See  also  Elections,  I.  a,  in  Digest  L.R.A. 
1-10.) 

1.  The  right  of  suffrage  includes  the 
right  to  form  political  parties,  and  the 
right  of  each  party  to  have  all  the  machin- 
ery, not  reasonably  prohibited  by  law,  for 
making  its  organization  effective  as  to  the 
policy  of  its  members,  by  electing  officers 
in  harmony  therewith.  State  ex  rel.  Mc- 
Grael  v.  Phelps,  35:  353,  128  N.  W.  1041,  144 
Wis.  1. 

2.  In  general,  a  legislative  interference 
with  the  elective  franchise  must  stand  the 
test,  at  least,  of  these  fundamentals  of  the 
state  Constitution:  (a)  The  express  and 
implied  inhibitions  of  class  legislation; 
(b)  the  recognized  existence  and  inviolabili- 
ty of  inherent  rights;  (c)  the  constitution- 
ally declared  purpose  of  government;  (d) 
the  express  guaranty  of  the  right  to  vote. 
State  ex  rel.  McGrael  v.  Phelps,  35:  353, 
128  N.  W.  1041,  144  Wis.  1. 

3.  A  regulation  which  necessarily  tends 
to  afford  one  political  party  of  substantial 
status  a  better  opportunity  for  efficient  ex 
istence  than  another,  however  large,  or  ma- 
terially impair  or  prevent  fair  opportunity 
for  any  organization  of  voters  of  substan- 
tial numbi-rs  and  standing  to  compete  for 
favor,  is  an  unreasonable  interference.  State 
ex  rel.  McGrael  v.  Phelps,  35:  353,  128  N. 
W.   1041,   144   Wis.   1. 

4.  A  legislative  interference  with  free- 
dom, as  regards  political  party  organiza- 
tion and  contest,  which  naturally  impairs 
opportunity  for  members  of  any  political 
party  of  substantial  significance  to  efficient' 
ly  maintain  their  organization,  and,  to  that 
end,  present  their  party  candidates  and 
principles,  as  such  to  the  voters  at  large 
for  indorsement,  is  unreasonable.  State 
ex  rel.  McGrael  v.  Phelps,  35:  353,  128  t.N. 
W.   1041,   144   Wis.   1. 

II.  Qualifications  of  voters. 

a.  In  general;  residence. 

(See  also  Elections,  I.  a,  in  Digest  L.R.A. 
1-70.) 

Qualifications  of  voters  at  local  option  elec- 
tion, see  Constitutional  Law,  175; 
Intoxicating  Liquors,  50. 

Perjury  in  swearing  as  to  qualifications  of 
voters,  see  Evidence,  1241,  1242,  1651; 
Perjury,  10. 

Qualifications  for  voting  on  question  of  or- 
ganizing drainage  district,  see  Drain- 
age District,  8-10. 

Compelling  unqualified  voter  to  disclose 
candidate  voted  for,  see  Witnesses,  92. 


982 


ELECTIONS,  II.  b. 


5.  An  act  providing  for  the  election  of 
judicial  officers  by  a  separate  ballot  con- 
taining the  names  of  candidates,  without 
any  designation  except  the  office  to  which 
such  candidates  are  to  be  elected,  the  num- 
ber required  to  be  elected,  and  instructions 
to  the  voter  to  vote  for  the  requisite  num- 
ber, is  not  violative  of  a  constitutional  pro- 
vision that  all  citizens  possessed  of  the 
requisite  qualifications  shall  be  entitled  to 
vote  at  all  elections,  in  that  it  requires  an 
elector  to  be  able  to  read  in  order  to  select 
the  candidate  for  a  judicial  office  for  whom 
he  may  desire  to  vote.  State  ex  rel.  Wein- 
berger v.  Miller,  44:  712,  99  N.  E.  1078,  87 
Ohio  St.  12. 

6.  A  provision  in  a  schedule  to  a  con- 
stitution, that,  in  all  elections  held  after 
its  adoption,  the  qualifications  of  electors 
shall  be  thBse  required  by  the  constitution, 
refers  solely  to  the  elections  provided  for  by 
that  instrument.  Willis  v.  Kalmbach,  21: 
1009,  64  S.  E.  342,  109  Va.  475. 

7.  A  verdict  of  guilty  upon  which  no 
judgment  has  been  entered  is  not  within  tin 
provision  of  a  statute  excluding  from  the 
elective  franchise  persons  convicted  of  fel- 
ony. People  V.  Fabian,  18:  684,  85  N.  E. 
672,    192   N.    Y.   443.  (Annotated) 

8.  A  citizen  who  has  been  convicted  of 
bribery  in  an  election  and  has  undergone 
the  punishment  fixed  by  the  judgment  is  a 
qualified  voter,  where  the  \  Constitution 
makes  all  male  citizens  voters  except  those 
under  conviction  of  certain  offenses  includ- 
ing such  bribery.  Osborne  v.  Kanawha 
County  Court,  32:  418,  69  S.  E.  470,  68  W. 
Va.  189.  (Annotated) 
Women. 

Right  of  women  to  vote  on  question  of  issue 

of  school  bonds,  see  BoNi>s,  95. 
Residence. 

9.  The  term  "residence,"  used  by  the 
Constitution  in  fixing  the  qualification  of 
voters,  does  not  mean  domicil.  Estopinal  v. 
•Michel,  19:  759,  46  So.  907,  121  La.  879. 

(Annotated) 

10.  The  object  of  requiring  the  voter  to 
have  resided  for  a  time  at  the  place  whera 
he  offers  to  vote  is  that  he  may  be  afforded 
aM  opportunity  to  acquire  the  information 
necessary  for  an  intelligent  vote,  and  become 
identified  with  the  interestj  of  the  locality, 
and  also  to  prevent  the  colonization  of 
voters.  Estopinal  v.  Michel,  19:  759,  46  So. 
907r  121  La.  879. 

11.  In  the  absence  of  proof  that  a  person 
otherwise  qualified  has  acquired  a  residence 
elsewhere,  he  must  be  considered  to  be  a 
resident  of  the  parish  where  his  work  re- 
quires him  to  stay,  where  he  was  born,  and 
where  he  has  always  lived  and  voted;  and 
it  makes  no  difference  that  he  has  never  had 
in  said  parish  any  other  home  than  a  board- 
ing house,  while  ho  has  had  in  another  par- 
ish a  home,  where  he  has  kept  his  wife  and 
children,  whom  he  has  visited  as  often  as  he 
could.  Estopinal  v.  Michel,  19:  759,  46  So. 
907,  121  La.  879. 

12.  The  selection  and  purchase  of  a  home 
in  a  state,  with  the  intention  of  making 
it  «  permanent  residence,  is  not  of  itself 
Digest  1-52  r,.R.A.(N.S.) 


sufficient  to  make  one  a  citizen  of  the  state- 
for  the  purpose  of  fixing  his  right  to  vote,, 
if,  pending  the  vacation  of  the  property  by 
the  former  occupant,  he  continues  to  oc- 
cupy his  former  residence  in  another  state. 
People  v.  Turpin,  33:  766,  112  Pac.  539,  49- 
Colo.  234.  (Annotated) 

13.  A  bachelor  cannot  claim  the  place 
where  he  takes  his  meals  as  his  residence 
for  voting  purposes,  where  he  keeps  a  busi- 
ness office  and  sleeping  apartment  in  con- 
nection therewith  in  another  ward,  at  wliich 
he  spends  most  of  his  time.  State  v.  Savre,. 
3:  455,  105  N.  W.  387,  129  Iowa,  122. 

14.  A  student  is  not  prevented  from' 
gaining  a  residence  for  voting  purposes  at 
the  place  where  he  is  attending  school,  by 
a  constitutional  provision  that  no  elector 
shall  be  deemed  to  have  gained  or  lost  a 
residence  while  in  attendance  at  any  sem- 
inary of  learning,  if  he  goes  to  the  college 
town  for  the  purpose  of  establishing  his 
residence  there,  although  an  incidental  pur- 
pose is  to  take  advantage  of  the  educa^ 
tional  resources  of  the  town.  People  v. 
Osborne,  40:  168,  135  N.  W.  921,  170  Mich. 
143.  (Annotated) 

b.  Registration. 

(See  also  Elections,  I.  b,  in  Digest  L.R.A. 
1-10.) 

Effect  of  accepting  ballot  from  unregistered 
voters,  see  infra,  26. 

Criminal  liability  of  discharged  convict  for 
registering,  see  infra,  86. 

Vote  on  constitutional  amendment,  see  Con- 
stitutional Law,  10-14. 

Conviction  of  illegal  registration  as  bar  to 
prosecution  for  false  swearing,  see 
Criminal  Law^  218. 

See  also  infra,  26. 

15.  The  delegation  by  the  legislature  to 
the  county  commissioners  of  the  power  to 
order  a  new  registration  of  voters  is  not 
prevented  by  a  constitutional  provision  fix- 
ing the  qualification  of  voters.  Cox  v. 
Pitt  County,  16:  253,  60  S.  E.  516,  146  N.  C. 
584. 

16.  A  certificate  that  a  person's  name 
appeared  upon  the  registration  books  of  a 
certain  township  prior  to  the  taking  effect 
of  a  constitutional  provision  looking  to  the 
registration  of  voters,  which  declares  that 
such  certificate  "shall  be  sufficient  to  estab- 
lish the  right  to  subsequent  registration  and 
the  franchise  under  the  limitations  herein 
imposed,"  is  not  sufficient  to  entitle  the 
holder  to  vote,  where  it  does  not  contain  the 
statements,  and  is  not  in  the  form,  pre- 
scribed by  the  legislature  for  a  registration 
certificate  entitling  the  holder  to  vote. 
State  ex  rel.  Birchmore  v.  State  Bd.  of 
Canvassers,  14:  850,  59  S.  E.  145,  78  S,  C. 
461. 

17.  The  name  of  a  registered  voter  whose 
registration  papers  have  been  destroyed  by 
fire  must,  upon  application  by  him  made  at 
any  time  before  the  forty-eight  hours  pre- 
ceding the  opening  of  the  polls,  be  placed 


ELECTIONS,  in.  a,  b,  1. 


983 


on  the  new  registry  list,  without  requiring 
him  to  register  anew,  where  the  poll  books 
are  not  required  by  statute  to  be  sent  to 
the  polls  until  forty-eight  hours  before  the 
opening  thereof,  notwithstanding  a  statute 
prohibiting  a  registrar  from  placing  the 
name  of  a  voter  on  his  register  within  thirty 
days  of  the  election  for  which  the  regis- 
tration is  made,  since  such  a  voter  is  not, 
by  the  destruction  of  the  registry  list, 
placed  in  the  category  of  one  who  has  not 
registered.  State  ex  rel.  Reid  v.  Lebleu,  28: 
989,  52  So.  849,  126  La.  616. 
Discrimination. 
In  primary  election  law,  see  infra,  69,  70. 

III.  Elections. 

a.  In  general. 

(See  also  Elections,  II.  a,  in  Digest  L.R.A. 
1-10.) 

Act  validating  election,  see  Constitutional 
Law,  44;  Statutes,  176. 

Damages  for  wilful  rejection  of  ballot,  see 
Damages,  13. 

By  members  of  parliamentary  body,  see 
Parliamentary  Law. 

Validity  of  statute  fixing  time  for,  see  Stat- 
utes, 68. 

18.  A  constitutional  requirement  of  uni- 
formity of  election  laws  throughout  the 
state  does  not  prevent  the  legislature  from 
classifying  counties  with  respect  to  their 
local  needs,  in  providing  for  elections  upon 
local  matters.  Ex  parte  Owens,  8:  888,  42 
So.  676,  148  Ala.  402. 

19.  An  election  upon  a  proposition  to 
build  a  town  hall  is  not  invalidated  by  the 
fact  that  the  proposition  is  in  a  form  re- 
quiring the  approval  of  two  contracts,  one 
for  constructing  the  building  and  the  other 
for  heating  and  lighting  it  and  furnishing 
the  plumbing, — especially  where  the  ballots 
follow  the  language  of  the  statute.  Brooks 
V.  Brooklyn,  26:  425,  124  N.  W.  868,  146 
Iowa,  136. 

Notice  or  proclamation. 

On  question  of  issuance  of  municipal  bonds, 

see  Bonds,  89-94. 
Regulation;  mode  of  voting. 
Voting  by  machine,  see  infra,  41-47. 
Necessity   that   local    option    election    shall 

be  by  ballot,  see  Intoxicating  Liquors, 

47,  48. 
Challenge;  proof   of  right  to   vote. 

20.  The  vote,  at  a  general  election,  to 
decide  which  of  two  persons  on  a  party 
ballot  shall  be  designated  by  the  voters  of 
the  party  as  their  choice  for  United  States 
Senator,  which  is  authorized  by  a  primary 
election  law  in  case  no  candidate  has  re- 
ceived 40  per  cent  of  his  party  vote  at  the 
primaries,  is  not  a  part  of  the  general  elec- 
tion, but  merely  a  continuation  of  the  party 
primary  for  the  purpose  of  completing  the 
party  nomination;  and  therefore  a  provision 
for  challenging  a  voter  and  requiring  of  him 
an  affidavit  that  the  ballot  which  he  calls 
for  represents  the  political  party  with 
Digest  1-52  L.R.A.(N.S.) 


which  he  is  affiliated  does  not  violate  the 
constitutional  guaranty  of  a  secret  ballot. 
State  ex  rel.  McCue  v.  Blaisdell,  24:  465,  118 
N.  W.  141,  18  N.  D.  55. 

21.  Election  officers  cannot  refuse  to  ad- 
minister the  oath  or  receive  the  ballot  after 
the  oatli  is  taken,  under  a  statute  provid- 
ing that  if  a  challenged  voter  insists  that 
he  is  qualified,  the  judges  shall  tender  to 
him  a  prescribed  oath,  if  he  takes  which 
his  vote  shall  be  received.  Lane  v.  Mit- 
chell, 36:  968,  133  N.  W.  381,  153  Iowa,  139. 

(Annotated) 
Irregularities. 

22.  An  election  will  not  be  held  void 
because  qualified  electors  are  denied  the 
privilege  of  registering  and  voting  through 
failure  to  obey  the  statutory  requirements 
as  to  the  boundaries  of  a  voting  precinct, 
if  the  statute  prescribes  mandamus  as  the 
remedy  of  such  disobedience.  Martin  v. 
McGarr,  38:  1007,  117  Pac.  323,  27  Okla. 
653. 

23.  Where  by  statute  it  is  the  duty  of 
electors  of  precincts  failing  to  receive  the 
election  supplies,  to  proceed  to  prepare  sup- 
plies, and  hold  an  election  as  nearly  as 
may  be  in  conformity  with  the  law,  they 
cannot  have  an  election  declared  void  upon 
their  failure  to  do  so,  because  they  will  be 
held  to  have  been  parties  to  their  own  dis- 
franchisement. Martin  v.  McGarr,  38: 
1007,  117  Pac.  323,  27  Okla.  653. 

24.  An  action  brought  for  the  purpose 
of  having  an  election  declared  void  will  not 
be  sustained  by  showing  merely  the  recep- 
tion of  illegal  ballots.  An  election  is  held 
void  in  those  cases  only  where  it  is  im- 
possible to  separate  the  valid  from  the 
invalid  ballots,  and  the  correct  result  is  im- 
possible of  determination.  Martin  v.  Mc- 
Garr, 38:  1007,   117   Pac.  323,  27  Okla.  653. 

25.  An  election  is  void  where  qualified 
electors  are  corruptly  and  fraudulently  de- 
prived of  an  opportunity  to  register  and 
vote,  sufficient  in  number,  had  all  been 
counted  for  the  next  highest  candidate,  to 
have  changed  the  result  of  the  election. 
Martin  v.  McGarr,  38:  1007,  117  Pac.  323, 
27   Okla.   653.  (Annotated) 

26.  The  acceptance  of  ballots  from  unreg- 
istered voters  will  not,  in  the  absence  of 
fraud,  defeat  the  election,  if  their  exclusion 
would  not  have  changed  the  result,  or  made 
it  doubtful.  State  ex  rel.  Birchmore  v. 
State  Bd.  of  Canvassers,  14:  850,  59  S.  E. 
145,  78  S.  C.  461. 

Z>.  Ballots. 

1.  Preparation;  official  acts. 

(See  also  Elections,  II.  b,  1,  in  Digest  L.R.A. 
1-10.) 

Election  of  judicial  officers  by  separate  bal- 
lot, see  supra,  5. 

Act  providing  for  election  of  judicial  officers 
by  separate  ballot  as  a  special  law,  see 
Statutes,  184. 

Construction  of  statute  as  to  preserving  of 
ballots,  see  Statutes,  254-256. 


984 


ELECTIONS,  III.  b,  1. 


Order  requiring  production  of  ballot  boxes 
for  inspection,  see  Contempt,  26;  Sub- 
poena Duces  Tbxjum,  1. 

27.  An  act  providing  for  the  election  of 
judicial  officers  by  separate  ballot,  thus 
necessitating  more  than  one  ballot  at  an 
election,  is  not  violative  of  a  constitutional 

Erovision     that     all    elections    shall    be    by 
allot.     State  ex  rel.  Weinberger  v.  Miller, 
44:  712,  99  N.  E.  1078,  87  Ohio  St.  712. 

(Annotated) 

28.  The  legislature  cannot  provide  for 
numbering  ballots  where  the  constitution 
provides  that  the  ballots  shall  be  secret. 
McGrane  v.  Nez  Perc6  County,  32:  730,  112 
Pac.  312,  18  Idaho,  714. 

29.  Secrecy  is  not  required  by  a  constitu- 
tional provision  that  ail  elections  by  the 
people  shall  be  by  ballot,  at  least  so  as  to 
exclude  the  numbering  of  the  ballots  to 
correspond  with  the  poll  list.  Ex  parte 
Owens,  8:  888,  42  So.  676,  148  Ala.  402. 

(Annotated) 

30.  Unnumbered  ballots  are  not  void 
under  a  statute  merely  providing  that  eacn 
ballot  shall  be  numbered  to  correspond  with 
the  name  of  the  person  voting  the  same  on 
the  poll  list,  although  omission  to  number 
the  ballots  is  made  a  misdemeanor.  Mont- 
gomery V.  Henry,  i:  656,  39  So.  507,  144 
Ala.  629.  (Annotated) 
Persons  and  parties  entitled  to  place 

on  ballot. 
Mandamus    to    determine    which    candidate 

should  be  represented  on  official  ballot, 

see  Mandamus,  79. 
-:  31.  Some  standard  of  measurement  by 
which  to  test  the  competency  of  a  political 
party  to  have  the  use  of  the  official  ballot 
sheet  for  the  purpose  of  a  party  ballot  fol- 
lows, necessarily,  from  the  use  of  the  Aus- 
tralian ballot  form.  State  ex  rel.  McGrael 
V.  Phelps,  35:  353,  128  N.  W.  1041,  144  Wis. 
1.  ( Annotated ) 

32.  A  legislative  condition  of  a  person 
having  his  name,  as  that  of  a  party  nomi- 
nee, placed  on  the  official  ballot,,  under  his 
party  designation,  in  a  special  party  col- 
umn, that  he  shall  have  received  a  sufficient 
number  of  votes  for  such  place  at  the  pre- 
ceding primary  to  fairly  indicate  that  he  is 
such  party's  nominee,  and  that  the  party 
has  a  reasonably  significant  membership, 
is  in  the  field  of  legitimate  regulation  re- 
specting the  suitableness  of  tiie  ballot,  botli 
as  regards  the  major  and  minor  election 
districts.  State  ex  rel.  McGrael  v.  Phelps, 
35:  353,  128  N.  W.  1041,  144  Wis.  1. 

33.  The  votes  cast  in  an  official  district 
for  a  party  nominee  for  governor  is  a 
proper  basis  from  which  to  derive  a  unit 
of  measurement  for  such  party's  status  at 
the  succeeding  primary  election,  and  a  num- 
ber equal  to  20  per  cent  thereof  is  a  fair 
unit  by  which  to  determine  the  minimum  of 
party  strength  in  such  district,  required 
to  be  shown  at  such  primary  by  siicli  party 
as  to  any  particular  office,  for  such  dis- 
trict, to  entitle  the  person  favored  as  the 
party  nominee  to  have  his  name  placed,  as 
Buch,  in  the  party  column  on  tlnj  official 
Digest   1-52   L.R.A.(N.S.) 


ballot  at  the  succeeding  election.  State  ex 
rel.  McGrael  v.  Phelps,  35:  353,  128  N.  W. 
1041,  144  Wis.  1. 

34.  In  a  statute  providing  that,  if  the 
aggregate  of  votes  at  a  primary  election  for 
all  candidates  "for  nomination  for  any  one 
office  voted  for  on  party  ballot"  shall  be 
"  20  per*  cent  or  more"'  of  the  number  "cast 
for  nominee  of  such  party  for  governor  at 
the  last  general  election,"  the  one  receiv- 
ing the  most  votes  shall  have  his  name 
"placed  on  the  official  ballot  at  the  fol- 
lowing election"  as  such  party's  candidate 
for  such  office,  and  if  such  aggregate  shall 
be  less  than  such  per  cent  such  person 
shall  have  his  name  placed  on  such  ballot 
with  individual  nominations  under  the  des- 
ignation "independent," — by  necessary  im- 
plication, the  words,  "for  the  particular  of- 
ficial district  involved,"  or  words  of  similar 
import,  should  be  deemed  in  place  after  the 
words  "for  any  one  office,"  and  the  words 
"in  such  district,"  or  words  of  similar  im- 
port, after  the  word  "governor."  State  ex 
rel.  McGrael  v.  Phelps,  35:  353,  128  N.  W. 
1041,  144  Wis.  1. 

35.  Under"  a  primary  election  law  provid- 
ing for  the  issuance  ot  a  certificate  of  nom- 
ination to  the  successful  candidate,  the  is- 
suance of  such  certificate  until  set  aside  by 
some  proper  proceeding  conclusively  deter- 
mines the  right  of  the  holder  to  have  his 
name  placed  on  the  official  ballot;  and  the 
election  officers  have  no  power  to  withdraw 
the  certificate  for  alleged  mistake  in  issu- 
ing it.  State  ex  rel.  Kinder  v.  Goff,  9:  916, 
109  N.  W.  628,  129  Wis.  668.       (Annotated) 

36.  Under  a  statute  requiring  voting  ma- 
chines to  be  so  constructed  that  a  straight 
party  ticket  can  be  voted  by  the  operation 
of  a  single  device,  and  providing  that  bal- 
lots shall  be  printed  so  that  a  straight  party 
ticket  may  be  voted  by  making  a  cross  with- 
in a  party  circle,  the  voters  of  one  politi- 
cal party  cannot  be  deprived  of  the  right 
thus  to  vote  a  straight  ticket  by  a  single 
act,  by  presidential  electors  remaining  on 
the  ticket  of  that  party,  although  intending 
to  vote  for  the  candidates  of  another  party 

for  the  office  of  President  and  Vice  Presi- 
dent. State  ex  rel.  Nebraska  Rep.  State 
C.  Com.  V.  Wait,  43:282,  138  N.  W.  159,  92 
Neb.  313. 

Placing      and      gronping     tickets     or 
names. 

37.  Under  constitutional  provisions  that 
officers  shall  be  chosen  by  the  electors,  and 
that  no  one  shall  be  disfranchised  except 
by  the  law  of  the  land  or  the  judgment  of 
his  peers,  a  statute  is  void  which  estab- 
lishes a  blanket  ballot  with  a  separate 
column  for  the  nominees  of  the  several 
parties  and  independent  nominees,  but  pro- 
vides that  in  case  a  candidate  is  nominated 
by  more  than  one  party,  his  name  shall  ap- 
pear only  once  on  the  ticket,  since  it  dis- 
criminates against  certain  of  the  electors 
who  may  wish  to  vote  for  him  in  the  cast- 
ing of  their  ballots.  Hopper  v.  Britt,  37: 
825,  96  N.  E.  371,  203  N.  Y.  144. 


ELECTIONS,  III.  b,  2. 


985 


Stamping;  indorsements. 

Construction  of  statute  as  to,  see  Statxties, 

255. 
Irregularities. 

38.  A  vote  of  the  electors  amending  the 
city  charter  will  not  be  void  because  of  a 
clerical  failure  to  print  on  the  ballot  the 
fact  that  the  amendment  was  submitted  by 
the  council,  although  the  ordinance  under 
which  the  submission  was  made  required  it 
to  be  done.  Kiernan  v.  Portland,  37:332, 
111  Pac.  379,  57  Or.  454.'. 

39.  A  vote  upon  the  question  of  the 
adoption  bj'  the  electors  of  a  charter  amend- 
ment will  not  be  void  because  the  squares  to 
be  crossed  in  the  ballot  were  not  numbered 
in  the  same  order  as  in  the  voters'  pamph- 
let of  instructions,  where  the  words  "yes" 
and  "no"  were  plainly  printed  opposite  the 
squares  on  the  ballots,  so  that  no  one  could 
have  been  misled.  Kiernan  v.  Portland, 
37:  332,   111   Pac.  379,  57  Or.  454. 

2.  Casting;  acts   of  voter. 

(See  also  Elections,  II.  6,  2,  in  Digest  L.R.A. 
1-10.) 

Secrecy  in  local  option  election,  see  Intox- 
icating Liquors,  49. 

Marking  choice. 

40.  A  voter,  by  stamping  a  cross  in  a 
circle  at  the  top  of  a  column,  under  a  party 
device,  votes  for  all  the  candidates  in  such 
column,  under  a  statute  providing  that  a 
voter  desiring  to  vote  a  straight  ticket  may 
stamp  a  cross  in  a  circle  under  the  device 
and  in  the  column,  above  the  candidates  of 
the  party  for  whom  he  desires  to  vote,  and 
that  such  ballot  shall  be  counted  for  all  the 
candidates  in  the  column,  although  he  also 
stamps  a  cross  in  a  circle  opposite  all  of 
the  names  in  such  column  except  one,  as 
the  extra  markings  are  without  effect,  the 
statute  being  mandatory.  Potts  v.  Folsom, 
28:  460,  104  Pac.  353,  24  Okla.  731. 

(Annotated) 

Voting  machine. 

Delegation  of  power  to  voting  machine  com- 
mission, see  Constitutional  Law,  99. 

Injunction  against  use  of,  see  Injunction, 
243. 

Injunction  against  purchase  of  voting  ma- 
chines, see  Injunction,  334. 

Sufficiency  of  title  of  statute  as  to  use  of, 
see  Statutes,  100. 

41.  Statutes  providing  for  the  use  of 
voting  machines  at  elections  are  repugnant 
to  a  constitutional  provision  that  "all  elec- 
tions shall  be  by  ballot,"  and  are  void. 
State  ex  rel.  Karlinger  v.  Board  of  Deputy 
State  Supervisors,  etc.  24:  188,  89  N.  E.  33, 
80  Ohio   St.  471.  (Annotated) 

42.  The  use  of  voting  machines  is  not 
prohibited  by  a  constitutional  provision  that 
all  elections  shall  be  by  ballot.  United 
States  Standard  Voting  Mach.  Co.  v.  Hob- 
son,  7:  512,  109  N.  W.  458,  132  Iowa,  38. 

43.  The  approval  for  use  at  elections  of 
a  voting  machine  on  which  the  whole  ticket 
can  be  voted  as  a  unit  is  not  annulled  by 
Digest   1-52  L.R.A.(N.S.) 


the  passage  of  a  statute  striking  the  circle 
from  the  Australian  ballot.  United  States 
Standard  Voting  Mach.  Co.  v.  Hobson,  7: 
512,  109  N.  W.  458,  132  Iowa,  38. 

44.  The  provision  of  Minn.  Const,  art.  7, 
§  6,  that  all  elections,  except  for  town  offi- 
cers, shall  be  by  ballot,  was  merely  intend- 
ed to  secure  to  the  elector  the  privilege  of 
exercising  his  right  of  franchise  secretly  and 
effectively,  and  is  not  contravened  by  Minn. 
Laws  1905,  chap.  267,  p.  400,  providing  for 
the  use  of  voting  machines  at  elections.  El- 
well  V.  Comstock,  7:  621,  109  N.  W.  698,  99 
Minn.   261.  (Annotated) 

45.  A  machine  for  voting,  whose  work- 
ing and  whose  record  of  the  result  are  in- 
visible to  the  voter,  is  not  a  compliance 
with  constitutional  provisions  that  officers 
shall  be  chosen  by  written  votes,  which  shall 
be  sorted  and  counted  by  the  town  clerk, 
who  shall  form  a  list  of  the  persons  voted 
for,  with  the  number  of  votes  for  each 
person  against  his  name;  and  who  shall 
make  a  fair  record  of  the  same,  and  a  pub- 
lic declaration  thereof.  Nichols  v.  Minton, 
12:  280,    82    N.    E.   50,    196    Mass.   410. 

46.  A  provision  of  a  primary  election 
law  that  the  provisions  of  the  general  elec- 
tion law  as  to  the  manner  of  conducting  the 
elections  and  all  other  matters  shall  be  ap- 
plicable hereto,  except  in  so  far  as  the  pro- 
visions thereof  may  be  inconsistent  here- 
with, will  not  justify  the  use  of  a  voting 
machine  as  provided  by  the  general  law,  if 
the  primary  law  expressly  provides  for 
ballots  which  are  to  be  prepared  in  such 
manner  as  to  give  all  candidates  an  equali- 
ty before  the  law,  to  the  requirements  of 
which  the  voting  machine  is  not  adapted, 
— especially  where  the  statute  provides  that 
ballots  other  than  those  furnished  accord- 
ing to  the  provisions  of  this  act  shall  not  be 
counted.  Line  v.  Waite,  18:  412,  117  N.  W. 
730,  154  Mich.  329. 

47.  Primary  elections  are  not  within  the 
meaning  of  a  statute  permitting  the  use  of 
voting  machines  at  all  state,  county,  city, 
village,  and  township  elections.  Line  v. 
Waite,  18:  412,  117  N.  W.  730,  154  Mich. 
329.  (Annotated) 
Assisting  voter. 

Construction  of  statute  as  to  assistance  to 
illiterate  voter,  see  Statutes,  253. 

48.  A  ballot  which  has  been  prepared  by 
the  elector  with  the  voluntarily  permitted 
assistance  of  any  oth§r  than  the  author- 
ized or  acting  poll  clerks  is  exposed,  with- 
in the  meaning  of  a  statute  providing  for 
the  exclusion  of  an  intentionally  exposed 
ballot,  except  when  prepared  by  the  poll 
clerks  as  provided  by  a  statute  declaring 
that  any  elector  who  declares  that,  because 
of  physical  disability  or  inability  to  read 
the  English  language,  he  is  unable  to  mark 
his  ballot,  may  declare  his  choice  of  candi- 
dates to  the  poll  clerks,  who,  in  the  pres- 
ence of  the  elector,  shall  prepare  the  bal- 
lot. Board  v.  Dill,  29:  1170,  110  Pac.  1107, 
26  Okla.  104. 

49.  Requesting  assistance  to  determine 
which  names  on  a  primary  election  ballot 
are    politically    in    accord    with    the    voter 


986 


ELECTIONS,  III.  b,  3— d. 


does  not  subject  one  to  tlie  penalty  pro- 
vided for  any  voter  who  shall  make  a  false 
statement  as  to  his  inability  to  mark  his 
ballot,  where  the  statute  provides  that  the 
voter  shall  be  at  liberty,  if  he  is  unable 
to  prepare  his  own  ballot,  to  request  as- 
sistance. State  v.  BrefTeihl,  40:  535,  58  So. 
763,  130  La.  904.  (Annotated) 

3.  Distinguishing    marTca. 

a.  In  general. 

(See  also  Elections,  II.  b,  3,  a,  in  Digest 
L.R.A.  1-10.) 

50.  Violation  by  election  officers  of  the 
statute  forbidding  them  to  furnish  ballots 
containing  distinguishing  marks,  will  not 
render  the  election  void  in  the  absence  of 
any  provision  to  that  eflfect  in  the  statute. 
McGrane  v.  Nez  Perc6  Ckjunty,  32:  730,  112 
Pac.  312.  18  Idaho,  714. 

51.  Where,  contrary  to  the  constitution- 
al provision  for  secrecy,  the  election  office>-s 
numbered  the  ballots  without  the  knowl- 
edge or  authority  of  the  voters,  who  had 
no  opportunity  to  correct  the  error,  an  elec- 
tion held  with  the  use  of  such  ballots  will 
not  be  declared  void  either  as  an  invasion 
of  the  constitutional  provision  for  secrecy 
or  on  the  ground  that  the  ballots  contained 
distinguishing  marks.  McGrane  v.  Nez 
Perc6  County,  32:  730,  112  Pac.  312,  18 
Idaho,  714.  (Annotated) 

b.  Voter' 8  marTcs. 

(See  also  Elections,  II.  b,  3,   b,  in  Digest 
L.R.A.  1-70.) 

52.  An  elector  who  has  placed  a  mark 
upon  his  ballot  whereby  it  may  be  identified 
cannot  be  heard  to  say  that  he  did  not  in- 
tend the  mark  for  that  purpose.  Elwell  v. 
Comstock,  7:  621,  109  N.  W.  698,  99  Minn. 
261. 

53.  Words  or  sentences  such  as  "nit"  or 
"may  the  best  man  win,"  written  upon  bal- 
lots, were  apparently  not  placed  there  for 
the  purpose  of  identifying  the  ballots,  which 
may  properly  be  counted.  Elwell  v.  Com- 
stock, 7:  621,  109  N.  W.  698,  99  Minn.  261. 

54.  A  ballot  cast  at  an  election,  which 
is  so  marked  by  the  voter  with  his  name  or 
initials  that  his  identity  is  thereby  disclosed 
to  anv  other  person,  is  void.  Elwell  v.  Com- 
stock]^  7:  621,  109  N.  W.  698,  99  Minn.  261. 

c.  Result;   canvassing. 

(See  also  Elections,  II.  c,  in  Digest  L.R.A. 
1-70.) 

Tie  Tote;  majority;  txro-thirds  vote. 

Two-thirds  vote  as  to  issuance  of  municipal 

bonds,  see  Bonds,  96,  97. 
To  adoption   of   constitutional   amendment, 

see  Constitutional  Law,  14. 

55.  Under  a  constitutional  provision  au- 
thorizing county  local  option  and  providing 
Digest   1-52  Ii.R.A.(N.S.) 


also  that  intoxicating  liquors  shall  not  b« 
sold  in  any  election  district  of  the  county 
in  which  a  majority  vote  was  cast  against 
the  same  at  a  county  election,  the  sale  of  in- 
toxicating liquors  is  not  prohibited  in  an 
election  district  of  the  county  in  which  tiie 
vote  is  a  tie  on  such  an  election,  although 
under  a  previous  election  the  election  dis- 
trict voted  against  the  sale  of  liquors  and 
in  favor  of  prohibition,  and  by  virtue  of 
such  majority  vote  the  sale  of  liquors  in 
such  election  district  had  been  prohibited. 
Yent  V.  State  ex  rel.  Richardson,  49:  1204, 
63   So.  452,   66   Fla.  336.  (Annotated) 

Canvassing. 
Mandamus  to  control  canvassing  board,  se« 

Mandamus,  80. 
Personal  liability  of  an  election  officer  for 

rejecting  ballots,  see  Officers,  97. 
Right  of  citizen  to  maintain  action  to  com- 
pel  canvassing   of  votes,   see   Parties, 
116. 

56.  The  officials  of  a  municipal  corpora- 
tion cannot  refuse  to  canvass  the  returns  of 
an  election  held  at  the  proper  time  by  the 
citizens,  on  the  ground  that  they  neglected 
to  take  the  preliminary  steps  for  holding 
the  election,  and  refused  to  supervise  the 
one  actually  conducted.  State  ex  rel.  Har- 
vey V.  Mason,  9:  1221,  88  Pac.  126,  45  Wash. 
234. 

Recount. 

Mandamus  to  compel,  see  Mandamus,  80. 

Declaration    of    result;    certificate    of 

election. 
Governor's  duty  to  issue,  see  Governor,  2, 
Mandamus  to  compel  issuance  of  certificate 

of  election,  see  Mandamus,  33,  82. 
Mandamus  to  compel  declaration  of  resuit, 

see  Mandamus,  81. 

57.  The  adoption  by  a  primary  election 
law  of  the  provisions  of  the  general  election 
law  as  to  the  canvass  of  the  votes  includes 
the  provision  for  the  execution  of  a  certifi- 
cate of  election  to  the  duly  nominated  pri- 
mary candidate.  State  ex  rel.  Rinder  v. 
Goff,  9:  916,  109  N.  W.  628,  129  Wis.  668. 

d.  Election  frauds;  crimes. 

(See  also  Elections,  II.  d,  in  Digest  L.R.A. 
1-70.) 

Recovery  on  note  for  money  used  to  corrupt 

voters,  see  Bills  and  Notes,  221. 
Injunction  against  fraud,  see   Courts,  80, 

222. 
What   courts   may    issue   writs   to   prevent 

frauds,  see  Courts,  221,  222. 
Injunction  against  fraud  generally,  see  In- 

jUNcmoN,  123. 
Injunction  against  padding  of  registration 

lists,  see  Parties,  104. 
Privilege  of  witness  in  prosecution  for,  see 

Witnesses,  135. 

58.  Criminal  intent  is  a  necessary  ele- 
ment of  conviction  for  violation  of  the  stat- 
ute against  illegal  voting.  People  v.  Os- 
borne, 40:  168,  135  N.  W.  921,  170  Mich. 
143. 

59.  Wilfully     voting    when     disqualified 


ELECTIONS,  IV. 


987 


involves  either  knowledge  of  disqualification 
or  a  reckless  disregard  of  vvliether  one  is 
disqualified  or  not.  State  v.  Savre,  3:  455, 
105  N.  W.  387,  129  Iowa,  122. 

60.  Upon  the  question  of  wilful  voting 
when  disqualified,  evidence  is  admissible 
that  the  voter,  being  in  doubt,  fairly  stated 
the  facts  to,  and  took  the  opinion  of,  per- 
sons learned  in  the  law.  State  v.  Savre, 
3:  455,  105  N.  W.  387,  129  Iowa,  122. 

IV.  Nominations ;    primaries;    political 
committees. 

(See  also  Elections,  III.  in  Digest  L.R.A. 
1-10.) 

Persons  and  parties  entitled  to  place  on  bal- 
lot, see  supra,  31-36. 

Permitting  electors  of  political  parties  to 
express  choice  of  candidate  for  United 
States  senate,  see  Constitutioxal 
T^w,  81 ;  Courts,  127 ;  Statutes,  72, 
101. 

Enjoining  certification  of  names  of  candi- 
dates for  office  of  United  States  senator, 
see  Courts,  225;  Parties,  117. 

Original  jurisdiction  of  Supreme  Court  over 
questions  as  to,  see  Courts,  223-226. 

Recovery  by  newspaper  on  bond  of  county 
clerk  for  failure  to  publish  in  paper 
lists  of  nominations,  see  Parties,  89. 

Who  may  question  eligibility  of  candidate, 
see  Parties,  115,  118. 

See  also  supra,  20. 

61.  Anyone  who  has  the  statutory  quali- 
fications to  fill  an  office  may  be  a  candidate 
for  election  to  that  office.  If  he  affiliates 
with  a  political  party,  he  may  become  the 
candidate  of  that  party;  or  he  may  become 
a  candidate  independently  of  all  parties. 
State  ex  rel.  Curyea  v.  Wells,  41 :  1088,  138 
N.  W.  165,  92  Neb.  337. 
Nominating   conventions. 

62.  Under  the  statutes  of  Nebraska,  the 
national  convention  of  a  political  party,  or, 
when  the  convention  is  not  in  session,  its 
national  central  committee,  is  the  supreme 
governing  body  of  such  party  as  to  national 
affairs,  and  has  full  authority  to  decide 
which  of  rival  conventions  or  committees 
in  the  state  is  the  regular  and  duly  author- 
ized convention  or  committee  of  such  party. 
State  ex  rel.  Nebraska  Rep.  State  C.  Com,  v. 
Wait,  43:  282,  138  N.  W.  159,  92  Neb.  313. 

Certificate  of  nomination. 

Disqualification  of  judge  to  pass  on  appli- 
cation to  restrain  certifying  of  nominee, 
see  Judges,  18. 

See  also  supra,  35. 

Vacancy  in  party  ticket. 

63.  Where  candidates  for  presidential 
electors  chosen  at  a  closed  primary  as  the 

candidates  of  a  political  party,  subsequently 

join  another  party  whose  principles  are  at 
variance  with  those  of  the  lirst,  and  accept 
the  nomination  of  that  party  as  candidates 
for  presidential  electors,  and  by  their  con- 
duet  show  their  intention  of  voting,  if  elect- 
ed, for  the  candidates  of  the  second  party 

for  the  office  of  President  and  Vice-Presi- 

Digest  1-52  Ii.R.A.(N.S.) 


dent,  such  persons  have  vacated  the  office 
held  under  the  first  party.  State  ex  rel. 
Nebraska  Rep.  State  C.  Com,  v.  Wait,  43: 
282,  138  N.  W.  1.59,  92  Neb.  313. 

64,  Where  candidates  for  presidential 
electors  of  a  political  =party  subsequently 
accept  nomination  as  candidates,  for  the 
same  office,  of  another  party,  and  thereby 
vacate  the  office  held  under  the  first  party, 
the  duly  recognized  state  central  committee 
of  the  first  party  has  the  right  to  fill  the 
vacancy  thus  created.  State  ex  rel.  Ne- 
braska Rep.  State  C.  Com.  v.  Wait,  43:  282, 
138  N.  W.  159,  92  Neb.  313. 

65,  Where  at  a  primary  election  in 
which  one  political  party  has  no  candidate 
for  a  certain  office,  a  majority  of  the  voters 
of  such  party  voting  for  a  candidate  for 
such  office  write  in  the  name  of  the  candi- 
date of  an  opposing  political  party,  who 
makes  the  necessary  tilings,  declaring  under 
oath  that  he  affiliates  with  such  opposing 
party,  and  such  candidate  is  certified  as  tiie 
candidate  of  the  party  thus  holding  the  elec- 
tion, but  fails  to  accept  the  nomination  or 
file  any  statement  that  he  affiliates  with 
such'  party  as  required  by  statute,  a  va- 
cancy has  occurred  within  the  meaning  of 
Cobbey's  Ann,  Stat,  (Neb.)  1911,  §  5888, 
and  the  proper  party  committee  may  fill 
the  vacancj'.  State  ex  rel.  Curvea  v.  Wells, 
41 :  1088,  138  N.  W.  165,  92  Neb.  337. 

(Annotated) 

Primary  elections. 

Use  of  voting  machines  at  primary  election,, 
see  supra,  46,  47. 

Court's  power  over,  see  Courts,  125, 

Original  jurisdiction  of  Supreme  Court  a» 
to,  see  Courts,  223,  224,  226, 

Conclusiveness  of  certificate  of  nomination 
under  primary  election  law,  see  Courts, 
224. 

Mandamus  to  compel  determination  of  ques- 
tions of  qualifications  of  candidate  by, 
see  Mandamus,  14, 

Who  may  maintain  action  to  test  eligibil- 
ity of  candidate  at  primary  election,  see 
Parties,  118. 

Nomination  of  candidates  for  presidential 
electors,  see  Presidential  Electors. 

Partial  invalidity  of  primary  election  law, 
see  Statutes,  69. 

Sufficiency  of  title  of  primary  election  law, 
see  Statutes,  101,  102, 

66,  A  constitutional  provision  fixing  the 
time  for  the  holding  of  general  elections 
does  not  prevent  the  legislature  from  pro- 
viding for  a  primary  election  to  be  held  on 
a  different  date.  State  ex  rel.  Miller  v, 
Flaherty,  41:  132,  136  N.  W.  76,  23  N.  D. 
313. 

67,  A  primary  election  law  which  makes 
the  taking  of  an  oath  of  party  fealty  a' 
condition  precedent  to  the  right  to  partici- 
pate in  a  primary  election  for  the  nomina- 
tion of  party  candidates  is  not  a  violation 
of  a  constitutional  provision  requiring  a 
secret  ballot.  State  ex  rel.  Miller  v.  Fla- 
herty, 41:  132,  136  N,  W.  76,  23  N,  D.  313. 

(Annotated) 

68,  A  portion  of  a  statutory  affidavit  re- 
quired   to   be    made    upon    enrolment    in    a 


988 


ELECTIONS,  IV. 


party  for  the  purpose  of  participating  in 
a  primary  election,  which  discriminates  be- 
tween claims  of  naturalized  citizens  in  tiiat 
it  permits  the  foreign  born  elector  natu- 
ralized by  court  process  to  vote  if  other- 
wise qualified,  but  excludes  from  voting  in 
such  primary  election  those  electors  natu- 
ralized by  being  within  the  terms  of  the 
act  of  Congress  naturalizing  certain  for- 
eign born  residents  within  the  limits  of 
the  state  at  the  time  of  its  admission  into 
the  Union,  and  also  those  electors  similarly 
naturalized  by  act  of  Congress  because  of 
having  been  residents  of  other  states  upon 
the  admission  of  such  state  into  the  Union, 
is  unconstitutional  and  void.  State  ex  rel. 
Miller  v.  Flaherty,  41:  132,  136  N.  W.  76, 
23  N.  D.  313. 

69.  A  provision  of  a  primary  election  law 
which  confers  the  right  to  vote  upon  a  per- 
son who  moves  into  an  election  precinct  a 
specified  time  before  the  election,  but  with- 
holds it  from  residents  of  the  precinct  who 
at  the  time  fixed  possess  all  the  constitu- 
tional qualifications  of  legal  voters,  but 
were  not  registered  at  the  last  general  reg- 
istration day,  violates  the  constitutional 
provision  that  all  elections  shall  be  free 
and  equal.  People  ex  rel.  Phillips  v.  Strass- 
heim.  22:  1135,  88  N.  E.  821,  240  111.  279. 

70.  A  primary  election  law  which  re- 
quires registration  as  a  condition  precedent 
to  voting  at  the  primary,  but  which  makes 
no  provision  for  the  registration  of  all  who 
would  be  entitled  under  the  Constitution  to 
vote  at  the  primary,  is  void, — especially 
where  the  law  is  only  in  force  in  certain 
portions  of  the  state,  and  in  localities  where 
it  is  not  in  force  voters  similarly  situated 
are  allowed  to  vote.  People  ex  rel.  Phillips 
V.  Strassheim,  aa:  1135,  88  N.  E.  821.  240 
111.  279.  (Annotated) 

71.  A  statute  which  provides  for  the 
party  enrolment  of  an  elector  who  has  be- 
come of  legal  age  after  the  day  of  enrol- 
ment, but  does  not  in  terms  provide  for 
the  enrolment  of  one  who  has  been  natu- 
ralized after  the  day  of  enrolment,  is  not 
unconstitutional,  as  it  will  be  construed  to 
include  the  latter  class  by  intendment.  State 
ex  rel.  Miller  v.  Flaherty,  41:  132,  136  N. 
W.  76,  23  N.  D.  313. 

72.  A  primary  election  law  providing  for 
the  enrolment  of  the  electors  In  parties,  and 
requiring  an  oath  of  party  fealty  as  a  con- 
dition precedent  to  the  right  to  participate 
in  a  primary  election  for  the  nomination 
of  party  candidates,  and  making  no  provi- 
sion for  enrolment  of  independent  voters, 
thereby  in  effect  barring  them  from  par- 
ticipating in  such  election,  does  not  pre- 
scribe an  added  qualification  for  suffrage 
•within  the  prohibition  of  a  constitutional 
provision  granting  to  every  male  citizen  of 
a  certain  age  and  residence  the  right  to 
vote,  nor  does  it  restrict  the  right  of  suf- 
frage. Stat*  ex  rel.  Miller  v.  Flaherty,  41: 
132,  136  N.  W.  76,  23  N.  D.  313. 

73.  The  percentage  vote  cast  by  a  politi- 
cal party  for  governor  in  a  particular  dis- 
trict at  the  preceding  election  is  a  proper 
basis  for  a  regulation  to  prevent  pavticipa- 
Digest  1-52  L.R.A.(N.S.) 


tion  by  members  of  one  party  in  the  con- 
tests between  candidates  at  the  primary 
election  of  another  party.  State  ex  rel, 
McGrael  v.  Phelps,  35:  353,  128  N.  W.  1041, 
144  Wis.  1. 

74.  A  primary  election  law  limiting  elec- 
tors to  the  right  to  cast  one  ballot  for  each 
of  the  nominees  for  representatives  in  the 
general  assembly,  named  by  the  senatorial 
committee,  contravenes  a  constitutional  pro- 
vision entil'ng  the  electors  to  cast  a  vote 
at  the  election  for  three  candidates  for  rep- 
resentatives in  the  general  assembly,  or  to 
cumulate  or  divide  his  vote  upon  a  less 
number  of  candidates.  People  ex  rel.  Phil- 
lips V.  Strassheim,  22:  1135,  88  N.  E.  8-21, 
240  111.  279. 

75.  A  statute  limiting  the  printed  names 
of  candidates  for  chief  justice  or  justice  of 
the  supreme  court  on  a  primary  election 
ballot  to  nominees  by  petitions  containing 
not  less  than  ."i.OOO  names  each,  not  more 
than  r»00  of  which  shall  be  from  one  coun- 
ty, violates  a  constitutional  provision  de- 
claring that  all  elections  shall  be  free,  and 
that  there  shall  be  no  hindrance  or  im- 
pediment to  the  right  of  a  qualified  voter 
to  exercise  the  elective  franchise,  since 
thereby  all  electors  except  500  in  each  coun- 
ty are  deprived  of  the  constitutional  right 
tb  take  part  in  the  nomination  of  a  political 
candidate.  State  ex  rel.  Ragan  v.  Junkin, 
23:  839,  122  N.  W.  473,  85  Neb.  1. 

76.  A  primary  election  law  requiring  a 
candidate  for  nomination  to  the  state  legis- 
lature to  take  an  oath  that  he  is  a  candidate 
of  a  designated  political  party,  and  to  make 
a  pledge  to  the  people  that  he  will  support 
and  vote  for  that  candidate  of  his  party  for 
United  States  Senator  who  has  received  a 
majority  of  such  party  votes  for  that  posi- 
tion at  the  primary  election,  or  at  the  suc- 
ceeding general  election,  violates  a  constitu- 
tional provision  requiring  a  member  of  the 
legislature  to  take  and  subscribe  an  oatb 
that  he  will  support  the  Constitutions  of 
the  United  States  and  of  the  state,  and  will 
faithfully  discharge  the  duties  of  his  office, 
and  that  no  other  oath,  declaration,  or  test 
shall  be  required  as  a  qualification  for  office. 
State  ex  rel.  McCue  v.  Blaisdell,  24:  465,  118 
N.  W.  141,  18  N.  D.  55. 

77.  In  a  primary  election  law  providing 
that  the  party  candidate  for  the  United 
States  Senate  receiving  the  highest  number 
of  votes  at  the  party  primary  shall  be  the 
party  nominee  for  such  office  at  the  suc- 
ceeding session  of  the  legislative  assembly 
which  is  to  elect  a  United  States  Senator, 
but  that  if  no  candidate  receive  40  oer  cent 
of  his  party  primary  vote,  then  the  two 
candidates  of  each  party  who  received  the 
highest  number  of  votes  shall  be  placed  upon 
a  "separate"  ballot,  to  be  voted  for  at  the 
general  election  following;  that  such  ballot 
shall  be  prepared  in  the  same  manner  as  a 
general  election  ballot;  that  the  candidates 
of  such  party  shall  be  placed  upon  such  ballot 
under  their  proper  party  heading;  and  that 
the  name  of  each  candidate  shall  be  placed 
upon  such  ballot  in  the  same  manner  as  a, 
candidate    for   a   state   office,   and   shall   be 


ELECTIONS,  v.— ELECTRICAL  USES  AND  APPLIANCES. 


989 


voted  for  in  the  same  manner, — the  word 
"separate"  does  not  mean  separate  from  the 
general  ballot,  but  means  separate  as  to 
each  political  party  which  had  failed  to 
make  nominations  at  the  regular  party 
primary,  and  therefore  requires  the  candi- 
dates for  United  States  Senator  of  each  of 
such  political  party  to  be  placed  on  separate 
party  ballots.  State  ex  rel.  McCue  v.  Blais- 
dell,  24:  465,  118  N.  W.  141,  18  N.  D.  55. 

78.  The  legislature  of  Nebraska,  in  pro- 
viding for  tlie  "closed  primary,"  adopted 
the  policy  of  allowing  each  political  party 
to  select  its  own  candidates.  State  ex  rel. 
Curyea  v.  Wells,  41:  1088,  138  N.  W.  1G5,  92 
Neb.   337. 

79.  Under  the  Nebraska  primary  law  no 
political  party  can  be  compelled  to  present 
as  its  candidate  at  a  general  election  one 
who  does  not  affiliate  with  the  party  so 
presenting  him  as  a  candidate.  Strte  ex 
rel.  Curyea  v.  Wells,  41:  1088,  138  N.  W. 
165,  92  Neb.  337. 

80.  Neb.  Comp.  Stat.  1911,  chap.  26,  pro- 
viding for  a  closed  primary,  clearly  recog- 
nizes the  existence  of  political  parties,  and 
delegates  to  the  members  of  each  party  the 
right  to  vote  at  primaries  and  general  elec- 
tions for  candidates  of  their  own  party, 
nominated  by  themselves  without  the  inter- 
ference of  members  of  any  other  political 
partv.  State  ex  rel.  Nebraska  Rep.  State 
C.  Com.  v.  Wait,  43:  282,  138  N.  W.  159,  92 
Neb.  313. 

Political  committees. 
Mandamus  to  parish  committee,  see  Manda- 
mus, 14. 
See  also  supra,  65. 

81.  A  Democratic  parish  committee  has 
no  power  to  pass  upon  the  eligibility  of  can- 
didates for  public  office,  as  they  are  not 
charged  with  judicial  funotions  nor  clothed 
"with  juridical  power.  Roussel  v.  Dornier, 
39:  826,  57  So.  1007,  130  La.  367. 

( Annotated ) 


T.  Contests. 

/See  also  Elections,  IV.  in  Digest  L.R.A. 
1-10.) 

Contest  of  local  option  election,  see  Appkal 
AND  Erbob,  3^  12,  13;  Constitution- 
al Law,  545;   Statutes,  181. 

•Court's  power  to  review,  see  Courts.  I.  c, 
2,  d. 

-Jurisdiction  of  election  contests,  see  Courts, 
205,  206. 

Disqualification  of  judge  to  try  election  con- 
test, see  Judges,  16,  17. 

Contest  of  title  to  office,  see  Officers,  I.  f. 

•Complaint  in  election  contest,  see  Plead- 
ing, 427. 

•Construction  of  statute  as  to  preserving  of 
ballots,  see  Statutes,  254-256. 

Extension  of  statute  as  to  contest  by  refer- 
ence to  title  only,  see  Statutes,  359. 

Trivilege  of  witness  in  prosecution  for,  see 
Witnesses,  135. 


right  of  the  candidate  receiving  the  next 
highest  number  of  votes  for  the  office  of 
county  assessor  to  contest  the  right  of  the 
candidate  receiving  the  highest  number  to 
hold  the  office,  upon  the  ground  that  the  lat- 
ter wa-s  ineligible  in  that  he  was  not  a  free- 
holder, that  the  electors  of  the  county  who 
voted  for  the  latter  did  so  "wilfully  or  ob- 
stinately," with  notice  of  his  ineligibility. 
State  ex  rel.  Clawson  v.  Bell,  13:  1013,  82 
N.  E.  69,  169  Ind.  61. 

83.  The  candidate  receiving  the  next 
highest  number  of  votes  for  the  office  of 
county  assessor  is  not  entitled  to  contest  the 
right  of  the  candidate  receiving  the  highest 
number  to  hold  that  office  because  of  the 
latter's  ineligibility  by  reason  of  not  being 
a  freeholder,  under  a  statute  providing  that, 
when  any  person  shall  unlawfully  hold  or 
exercise  a  public  office,  an  information  may 
be  filed  by  the  prosecuting  attorney  upon 
his  own  relation,  or  "by  any  other  person 
on  his  own  relation,  whenever  he  claims  an 
interest  in  the  office,"  in  the  absence  of  any- 
thing to  show  that  the  voters  of  the  county 
knew,  or  ought  to  have  known,  of  such  in- 
eligibility. State  ex  rel.  Clawson  v.  Bell, 
13:  1013,  82  N.  E.  69,  169  Ind.  61. 

( Annotated ) 

84.  Participation  in  an  election  which  is 
not  secret,  although  required  by  statute  to 
be  by  ballot,  does  not  waive  the  right  to 
contest  the  result,  since  such  waiver  would 
be  against  public  policy.  State  ex  rel. 
Birchmore  v.  State  Bd.  of  Canvassers,  14: 
850,  59  S.  E.  145,  78  S.  C.  461. 

85.  Adequate  provision  for  contesting  an 
election  bo  determine  whether  or  not  the 
running  at  large  of  stock  shall  be  permit- 
ted, is  not  made  by  providing  that  it  may  be 
contested  on  the  same  grounds  and  in  the 
same  manner  as  contests  of  election  of  con- 
stables are  held,  the  statute  governing 
which  is  in  terms  confined  to  the  election 
of  persons  to  oflice.  Beason  v.  Shaw,  18: 
566,  42  So.  611,  148  Ala.  544.       (Annotated) 

VI.  Violation  of  election  laws. 


86.  A  discharged  convict  cannot  be  con- 
victed of  illegally  registering  as  a  voter  if 
he  acted  in  good  faith  believing,  upon  ad- 
vice of  registration  officers,  that  the  papers 
given  him  upon  his  release  from  confinement 
I  restored  his  citizenship.  State  v.  White, 
37:  1177,  140  S.  W.  896,  237  Mo.  208. 


ELECTORS. 


In  general,  see  Elections. 
Presidential     electors,     see     Presidential 
Electors. 


ELECTRICAL  USES  AND  AP- 
PLIANCES. 


82.  It  will  not  be  presumed,  in  aid  of  the    See  Elesctbicity. 
iDigest  1-52  L.R.A.(N.S.) 


990 


ELECTRIC   COMPANY— ELECTRICITY,  I. 


ELECTRIC  COMPANY. 

In  general,  see  Electricity. 

Power  line  of,  in  highway,  see  Eminent  Do- 
main, 288;  Estoppel,  156;  Highways, 
33. 

Power  of  electric  company  to  exercise  power 
of  eminent  domain,  see  Eminent  Do- 
main, 12,  47,  59,  71-80,  103,  104. 

See  also  Electbic  Lights. 


EMECTRIC  CONTROLI.ER. 

Injury  to  servant  by  explosion  of  street  car 
controller,  see  Master  and  Servant, 
382,  450. 


ELECTRIC  HEADLIGHTS. 

Requiring  use  of,  on  locomotives,  see  Con- 
stitutional Law,  209,  210,  438,  439. 


ELECTRICIANS. 


Statute  as  to  licensing  of,  see  Constitu- 
tional Law,   197,  242,  430. 


ELECTRICITY. 


7.  Municipal   or  governmental   regu- 
lation  of,    1. 
II.  Conflicting  rights  of  different  com- 
panies, 2,  3. 
III.  Injuries  resulting  from,  4—87. 

a.  Negligence    of    party    produc- 

ing,   4—75. 

b.  Contributory      negligence      of 

person   injured,    76—87. 

Right  of  electric  company  to  appeal  from 
order  of  public  service  commission  per- 
mitting issue  of  bonds  by  other  corpora- 
tion, see  Appeal  and  Error,  82. 

Review  of  legislative  decision  as  to  grant- 
ing power  of  eminent  domain  to  elec- 
trical  company,   see   Covrts,   120,   124. 

Ejectment  to  secure  removal  of  electric 
wires  over  one's  property,  see  Eject- 
ment, 1,  17. 

Electric  lights  ■  generally,  see  Electric 
Lights. 

Condemnation  by  corporation  organized  to 
transmit,  of  right  to  cut  trees,  see  Emi- 
nent Domain,  21. 

Condemnation  of  property  of  electrical 
company,  see  Eminent  Domain,  27. 

Power  of  electric  company  to  exercise  power 
of  eminent  domain,  see  Eminent  Do- 
main, 12,  47,  59,  71-80,  103,  104. 

Poles  and  wires  as  additional  servitude,  see 
Eminent  Domain,  291-206. 

Electric  railroad  as  additional  servitude, 
see  Eminent  Domain,  303-309. 

Digest  1-52  L.R.A.(N.S.) 


Burden  of  proving  right  to  place  wires  in 
streets,  see  Evidence,  518. 

Person  using  gas  engine  to  generate  elec- 
tricity for  charging  electric  automo- 
biles, as  a  manufacturer,  see  Gas,  15. 

Right  to  maintain  poles  and  wires  in  high- 
way, see  Highways,  53-65. 

Injury  to  trees  in  highway  by  stringing  of 
electric  wires,  see  Highways,  J 14-119. 

Enjoining  breach  of  contract  to  furnish,  see 
Injunction,  62. 

Injunction  to  prevent  interference  with 
electric  conduits,  see  Injunctiox,  3U9. 

Right  of  tenant  to  remove  electric  fixtures, 
see  Landlord  and  Tenant,  113,  116. 

Licensing  of  electricians,  see  Constitution- 
al Law,  242;  License,  50;  Statutes, 
57. 

Laches  to  bar  right  to  require  conduits  for 
electric  wires  to  be  removed  from  stn-et, 
see  Limitation  of  Action.s,  70. 

Lien  for  purchase  price  of  supply  of,  see 
Evidence,  523;  Mechanic's  Liens,  28. 

Placing  cost  of  inspection  of  electrical  worlc 
on  person  doing  the  work,  see  Munici- 
pal Corporations,  175. 

Electric  light  plant  as  nuisance,  see  Dam- 
ages, 503,  504;  NUISANCES,  65,  112. 

Rules  adopted  by  corporation  organiied  to 
supply,  see  Public  Service  Corpora- 
tions, 3,  4. 

Necessity  that  corporation  organized  to 
supply  and  distribute  electricity  obtain 
consent  of  public  service  commission  be- 
fore beginning  construction,  see  Public 
Service  Commission,  6. 

Authorizing  issue  of  bonds  by  corporation 
organized  to  furnish,  see  Public  Serv- 
ice Commission,  7. 

As  motive  power  of  railroad,  see  Railroads, 
29. 

As  motive  power  of  street  railway,  see 
Street'  Railways,  II. 

Electric  company  as  manufacturing  com- 
pany for  purposes  of  tax  laws,  see 
Taxes,  88. 

Right  of  riparian  owner  to  convey  electric 
power  generated  by  fall  of  stream  to 
nonriparian  land,  see  Waters,  136. 

/.  Municipal   or  governmental  regula- 
tion  of. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Power  of  city  as  to  electric  lighting  general- 
ly, see  Municipal  Corporations,  II.  f, 
1. 

Power  of  municipality  as  to  rates  for,  see 
Municipal   Corporations,   178. 

1.  A  corporation  engaged  in  furnishing 
electricity  to  a  municipality  or  its  inhabi- 
tants and  using  public  streets  or  exercising 
other  franchises  or  privileges  in  doing  so  i» 
thereby  performing  services  of  a  public  nat- 
ure, within  the  meaning  of  the  Constitution 
and  laws  of  this  state,  and  such  a  corporation 
is  subject  to  lawful  governmental  regulations 
to  enforce  its  duties  to  the  public  it  under- 


ELECTRICITY,  II.,  III.  a. 


991 


takes  to  serve,  Gainesville  v.  Gainesville 
Gas  &  Electric  Power  Co.  46:  11 19,  62  So. 
919,  65  Fla.  404. 

II.  Conflicting  rights  of  different  com- 
panies. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

2.  There  is  no  common-law  liability  on 
the  part  of  an  electric  railway  company,  in 
the  absence  of  negligence,  for  interference 
with  the  workings  of  a  submarine  telegraph 
cable,  due  to  escape  of  electricity  while  re- 
turning along  the  rails  to  the  power  house, 
where  immunity  from  such  interference  may 
be  obtained  by  a  special  mode  of  construct- 
ing the  cable.  Eastern  &  South  African 
Teleg.  Co.  v.  Cape  Town  Tramways  Cos.  2 
B.  R.  C.  114,  [1902]  A.  C.  381.  Also  Re- 
ported in  71  L.  J.  P.  C.  N.  S.  122,  50  Week. 
Rep.  657,  86  L.  T.  N.  S.  457,  18  Times  L.  R. 
523.  (Annotated) 

3.  Neither  the  provision  in  a  statute 
authorizing  the  construction  of  an  electric 
railway,  that  in  the  event  of  any  electric 
leak  taking  place  and  damage  being  thereby 
caused  at  any  time  by  electrolysis  or  other- 
wise, the  company  shall  make  good  such 
damage,  and  further  providing  that  nothing 
therein  should  entitle  the  company  to  use 
the  rails  of  its  lines  as  part  of  its  system 
of  conductors  for  the  return  electrical  cur- 
rent without  the  consent  of  the  city  council; 
nor  a  condition  under  which  the  consent  the 
council  to  such  use  was  obtained,  that  if  at 
any  time  a  greater  leakage  should  be  dis- 
covered than  would  render  it  possible  for 
the  escaping  current  to  be  reveised  in  a 
manner  indicated,  it  should  be  localized  and 
removed  as  soon  as  possible,  has  reference 
to  an  escape  naturally  resulting  from  the 
working  of  the  system;  and  therefore  no 
liability  is  imposed  thereby  upon  the  rail- 
way company  for  a  disturbance  in  the  work- 
ing of  a  telegraph  cable  in  consequence  of 
its  use  of  its  rails  for  the  return  current. 
Eastern  &  South  African  Teleg.  Co.  v.  Cape 
Town  Tramways  Cos.  2  B.  R.  C.  114,  [1902] 
A.  C.  381.  Also  Reported  in  71  L.  J.  P.  C. 
N.  S.  122,  50  Week.  Rep.  657,  86  L.  T.  N.  S. 
457,  18  Times  L.  R.  523. 

III.  Injuries  resulting  from. 

a.  Negligence  of  party  prodticing. 

(See  also  same  heading  in  Digest  Jj.R.A. 
1-70.) 

Evidence  in  action  for  death  caused  by  elec- 
tric shock,  see  Appeal  and  Error, 
1104. 

Presumption  and  burden  of  proof  as  to 
negligence,  see  Evidence,  II.  h,  1.  d. 

Presumption  from  burning  out  of  controller, 
gee  Evidence,  370,  371. 

Evidence  of  neglis;ence  as  to.  generally,  soe 
Evidence,  1764,  179],  1792,  1876,  1877. 

Digest  1-52  T..R.A.(N.S.) 


SufTiciency  of  proof  of  negligence  as  to,  see 
Evidence,  2166. 

Variance  between  pleading  and  proof  in  ac- 
tion for  death  caused  by,  see  Evidence, 
2493. 

Right  to  recover  for  fright  resulting  from 
electric  flash,  see  Fright,  8. 

Landlord's  liability  for  injury  to  tenant, 
see  Landlord  and  Tenant,  148. 

Liability  of  master  for  negligence  of  serv- 
ant as  to,  see  Master  and  Servant, 
382,  883. 

Liability  of  telephone  company  to  employees 
of  another  using  poles,  see  Master  and 
Servant,  469-471. 

Master's  duty  to  warn  servant  of  dangers 
of,  see  Master  and  Servant,  226,  227, 
245;  Pleading,  302. 

Fellow  servants  of  linemen,  see  Master 
AND  Servant,  796,  797. 

Liability  of  municipality  for  negligence  of 
employees  in  light  department,  see  Mu- 
nicipal Corporations,  417-420. 

Liability  of  electric  light  company  for  negli- 
gence in  attaching  arc  light  to  ceiling, 
see  Negligence,  89. 

Negligence  in  use  of  X-ray,  see  Physicians 
AND  Surgeons,  46-48,  68. 

Negligence  of  physician  in  use  of,  see  Phy- 
sicians AND  Surgeons,  61. 

Proximate  cause  of  injury  by,  see  Proxi- 
mate Cause,  II.  c. 

Right  of  action  under  state  statute  for 
death  resulting  from  electric  shock  on 
military  reservation,  see  State,  33. 

Negligence  as  question  for  jury,  see  Trial, 
577-582. 

Correctness  of  instructions  in  action  for  in- 
jury by,  see  Trial,  1055,  1056. 

4.  There  is  no  distinction  between  the 
measure  of  care  that  should  be  exercised 
by  an  electric  company  in  the  management 
and  care  of  its  wires  to  prevent  danger 
to  those  coming  directly  in  contact  with 
them,  and  the  measure  of  care  that  should 
be  exercised  to  prevent  the  wires  of  a  tele- 
phone company  from  becoming  charged 
therefrom  with  a  dangerous  current  of  elec- 
tricity; the  utmost  care  being  required  in 
both  instances.  Paducah  Light  &  Power 
Co.  v.  Parkman,  52:  586,  160  S.  W.  931, 
156  Ky.   197.  (Annotate!) 

5.  One  furnishing  electricity  for  ligiit- 
ing  purposes  is  not  an  insurer  against  in- 
jury to  persons  whose  duties  re<]uire  then 
to  be  near  the  wires,  but  it  must  exercise 
the  highest  care  to  prevent  such  injury. 
Phelan  v.  Louisville  Electric  Light  Co. 
6:  459,  91   S.  W.  703,  122  Ky.  476. 

(Annotated) 

6.  The  utmost  care  and  skill  which  one 
furnishing  electricity  for  ligliting  purposes 
must  exercise  to  prevent  accident  to  cus- 
tomers means  the  highest  degree  of  care  and 
skill  known,  which  may  be  used  under  the 
same  or  similar  circumstances.  Phelan  v. 
Louisville  Electric  Light  Co.  6:  459,  91  S. 
W.  703,  122  Ky.  476.^ 

7.  An  electric  light  company  cannot  es- 
cape liability  for  the  death  of  a  person  who 


992 


ELECTRICITY,  III.  a. 


innocently  came  in  contact  with  its  ground- 
ed current  upon  his  own  premises,  upon 
the  theory  that  it  owed  him  no  duty.  Har- 
rison V.  Kansas  City  Electric  Light  Co.  7: 
293,  93  S.  W.  951,  195  Mo.  606. 

8.  An  electric  light  company  is  negli- 
gent in  turning  the  current  upon  a  circuit 
upon  which  it  has  known  that  the  wire 
was  grounded,  without  positively  knowing 
that  the  trouble  has  been  remedied,  where 
the  means  to  ascertain  that  fact  are  with- 
in its  reach  and  at  hand.  Harrison  v.  Kan- 
sas City  Electric  Light  Co.  7:  293,  93  S.  W. 
951,    195    Mo.    606. 

9.  An  electric  light  company  which  neg- 
ligently turns  a  current  onto  a  circuit  hav- 
ing a  grounded  wire  cannot  escape  liability' 
for  resulting  injury  to  a  person  coming  in 
contact  with  the  grounded  current  by  the 
fact  that  the  injury  would  not  have  oc- 
curred except  for  the  act  of  a  stranger  in 
making  a  second  ground  at  another  place. 
Harrison  v.  Kansas  City  Electric  Light  Co. 
7:  293,  93  S.  W.  951,  195  Mo.  606. 

(Annotated) 

10.  Injury  by  electricity  to  a  consumer 
by  taking  hold  of  a  lamp  to  turn  on  the 
light,  in  the  same  manner  that  he  had  been 
accustomed  to  do  without  injury  is  evidence 
of  negligence  on  the  part  of  the  company, 
which  had  contracted  to  furnish  the  elec- 
tricity for  the  lights  at  a  certain  voltage, 
where  the  fixtures  are  in  good  condition 
and  the  voltage  contracted  for  is  not  likely 
to  produce  harmful  results  if  proper  care 
is  observed  in  its  transmission.  Turner  v. 
Southern  Power  Co.  32:  848,  69  S.  E.  767, 
154  N.  C.  131. 

11.  One  who,  in  furnishing  electricity  to 
light  a  building,  has  done  all  that  the  high- 
est degree  of  care  could  reasonably  require 
in  reference  to  the  conditions,  maintenance, 
and  inspection  of  his  wires  and  appliances, 
is  not  responsible  for  injury  to  a  consumer 
by  electricity  escaping  from  a  lamp  while 
he  is  attempting  to  turn  it  on.  Turner  v. 
Southern  Power  Co.  32:  848,  69  S.  E.  767, 
154  N.  C.  131. 

12.  A  telephone  company  is  not  liable 
lor  injury  to  a  patron  by  lightning  when  he 
is  attempting  to  use  a  phone  during  a 
thunderstorm,  where  it  has  equipped  the 
line  with  the  most  effective  device  known 
for  the  prevention  of  such  accidents,  and 
the  device  is  in  good  order  at  the  time  of 
injury.  Rocap  v.  Bell  Teleph,  Co.  36:  279, 
79  Atl.  769,  230  Pa.  597.  (Annotated) 

13.  A  telephone  company  is  not  negli- 
gent in  failing  to  place  a  warning  upon 
instruments,  tliat  they  are  not  to  be  used 
during  thunderstorms,  so  as  to  render  it 
liable  for  injury  to  a  patron  by  lightning 
while  making  such  attempt.  Rocap  v.  Bell 
Teleph.  Co.  36:  279,  79  Atl.  769,  230  Pa. 
597. 

14.  Whether  a  pole  carrying  a  deadly 
current  of  electricity  from  which  a  wire  is 
allowed  to  hang  in  a  dangerous  condition  is 
on  or  off  from  property  rented  by  its  owner 
to  the  parent  of  a  child  injured  by  com- 
ing in  contact  with  the  wire  is  immaterial 
on  the  question  of  liability  for  the  injury, 
Digest   1-52  KR.A.(N.S.) 


if  the  owner  had  sole  control  of  it.  Ferrell 
V.  Dixie  Cotton  Mills,  37:  64,  73  S.  E.  142, 
157  N.  C.  528. 

15.  When  electric  power  is  simply  fur- 
nished to  a  responsible  party  for  use  in  a 
system  of  poles,  wires,  and  appliances  owned 
and  controlled  by  such  party  and  in  proper 
condition  to  receive  the  current  safely,  the 
furnishing  party  is  not  required  to  main- 
tain inspection  or  to  see  at  its  peril  that 
such  equipment  is  kept  safe,  but  so  long 
as  not  chargeable  with  knowledge  of  some 
defect  therein,  it  may  assume  that  such 
safety  will  be  maintained;  and  the  fact 
that  in  furnishing  such  power  for  are  light- 
ing the  seller  undertakes  to  supply  and 
maintain  the  necessary  lamps  and  carbons 
does  not  change  the  rule.  In  order  to 
hold  the  seller  liable  it  must  appear  that 
it  continued  to  furnish  and  turn  on  the 
current  after  knowing  that  the  purchaser 
had  permitted  the  equipment  to  become  de- 
fective. Hoffman  v.  Leavenworth  Light, 
H.  &  P.  Co.  50:  574,  138  Pac.  632,  91  Kan. 
450. 

16.  An  electric  light  company  is  under 
no  duty  to  one  who  has  surreptitiously  con- 
nected unauthorized  wiring  with  his  house 
wiring,  for  the  purpose  of  carrying  the  cur- 
rent into  an  adjacent  building,  in  viola- 
tion of  his  contract  with  the  company, 
whereby  he  agreed  to  use  the  electric  system 
put  in  his  residence  upon  the  said  premises 
and  for  the  purposes  therein  specified  only, 
to  make  no  new  connections  without  permis- 
sion, and  to  provide  and  maintain  the  house 
wiring  and  appliances  "in  efficienct  con- 
dition, with  proper  protective  devices,  the 
whole  according  to  fire  underwriters'  re- 
quirements," so  as  to  render  it  liable  for 
allowing  dangerous  currents  to  escape  from 
a  defective  transformer,  in  consequence  of 
which  the  consumer  received  a  fatal  shock 
while  attempting  to  use  a  portable  lamp 
connected  with  such  unauthorized  wiring. 
Montreal  Light,  Heat  &  P.  Co.  v.  Laurence, 
4  B.  R.  C.  494,  39  Can.  S.  C.  326. 

(Annotated) 

17.  An  electrical  company  which  collects 
electricity,  and  sells  and  delivers  it  to  an- 
other electrical  company  at  a  point  where 
the  wires  of  the  two  companies  meet,  is  not 
liable  for  the  death  of  one  coming  in  con- 
tact with  a  grounded  electric  light  wire  of 
the  latter  company,  which  was  charged  with 
the  purchased  electricity,  but  over  which 
the  former  company  had  no  control. 
Fickeisen  v.  Wheeling  Electrical  Co.  27: 
893,  67  S.  E.  788,  67  W.  Va.  335. 

(Annotated) 

Insulation. 

Liability  to  trespassers,  see  infra,  74. 

Presumption  that  wire  was  not  properly 
insulated,  see  Evidence,  467. 

Master's  duty  as  to,  see  Masteb  and  Serv- 
ant, 300,  442. 

Imperfect  insulation  as  proximate  cause  of 
injury,  see  Proximate  Cause,  57,  59. 

As  question  for  jury,  see  Trial,  578,  582. 

See  also  infra,  36,  78. 

18.  An  electric  company  is  charged  with 
knowledge   of   the   character   of    insulation 


ELECTRICITY,  III.  a. 


993 


installed  by  itself  upon  its  own  wires,  and 
the  probable  effect  on  it  of  conditions  to 
which  it  will  be  subjected.  Ryan  v.  St. 
Louis  Transit  Co.  2:  777,  89  S.  W.  865,  190 
Mo.  621. 

19.  An  electric  light  company  is  bound 
to  use  a  high  degree  of  care  to  keep  its 
wires  safely  insulated  at  places  where 
persons  may  be  lawfully  in  close  proximity 
to  them,  and  accidentally  come  in  contact 
with  them.  Runyan  v.  Kanawha  Water  & 
Light  Co.  35:  430,  71  S.  E.  259,  68  W.  Va. 
<)09. 

20.  A  corporation  maintaining  danger- 
ous electric  wires  across  the  private  prop- 
erty of  another  will  not  be  relieved,  on  the 
ground  of  expense,  of  exercising  reasonable 
care  to  maintain  proper  insulation  to  pre- 
vent accidents  reasonably  to  be  apprehend- 
ed to  those  lawfully  coming  near  the  wires. 
Braun  v.  Buffalo  General  Electric  Co.  34: 
1089,  9-1  N.  E.  206,  200  N.  Y.  484. 

(Annotated) 

21.  A  corporation  which  permits  the  in- 
sulation on  dangerous  electric  wires  strung 
across  a  vacant  city  lot  which  it  may  rea- 
sonably anticipate  will  be  improved,  to  be- 
come defective,  will  be  held  liable  for  the 
death  of  a  carpenter  who,  by  working  on 
a  building  in  process  of  erection  on  the 
property,  accidentally  comes  in  contact  with 
the  wires  and  is  killed.  Braun  v.  Buffalo 
General  Electric  Co.  34:  1089,  94  N.  E. 
206,  200  N.  Y.  484. 

"22.  Workmen  have  a  right  to  be  on  any 
part  of  an  iron  bridge  in  doing  necessary 
work  in  painting  it,  and  an  electric  light 
company  having  its  wires  on  the  bridge  must 
keep  them  properly  insulated,  so  that  such 
workmen  coming  accidentallj  in  contact 
with  the  wires  may  not  be  injured  thereby. 
Runyan  v.  Kanawha  Water  &  Light  Co. 
35:  430,  71  S.  E.  259,  68  W.  Va.  609. 

23.  An  electric  company  which  maintains 
upon  a  public  bridge  wires  carrying  a  dan- 
gerous current,  without  sufficient  insula- 
tion, and  so  placed  that  persons  required 
to  work  upon  the  bridge  may  come  in  con- 
tact with  them,  is  liable  for  injury  to  such 
a  workman  by  a  disruptive  discharge  of 
electricity  from  the  wires,  without  negli- 
gence on  his  part.  Hoppe  v.  Winona,  33: 
449,  129  N.  W.  577,  113  Minn.  252. 

24.  One  owes  the  general  public  no  duty 
safely  to  insulate  electric  wires  wiiich  he 
runs  30  feet  above  the  ground  near  a  bridge 
pier,  which  is  not  intended  to  be  climbed, 
although  braces  on  the  pier  form  a  lattice 
work  which  may  be  climbed.  Graves  v. 
Washington  Water  Power  Co.  11:452,  87 
Pac.  956,  44  Wash.  675. 

25.  One  maintaining  an  uninsulated  elec- 
tric wire  near  a  bridge  pier  is  not  bound  to 
anticipate  that,  because  of  the  attractive 
character  of  the  pier  and  the  birds  found 
there,  children  may  climb  the  pier  and  come 
in  contact  with  the  wire,  and  take  precau- 
tions to  guard  against  injury  to  them. 
Graves  v.  Washington  Water  PoNver  Co. 
11:  452,  87  Pac.  956,  44  Wasli.  675. 

26.  It  is  negligence  to  attach  an  unin- 
sulated wire  carrying  a  dangerous  electrical 
current  to  a  tree  in  a  highway  having 
Digest   1-52  L>.R,A.(N.S.) 


branches  extending  almost  to  the  ground, 
which  children  would  be  likely  to  climb. 
Temple  v.  McComb  City  Electric  Light  & 
P.  Co.  11:  449,  42  So.  874,  89  Miss.  1. 

(Annotated) 

27.  A  company  furnishing  electricity  for 
the  lighting  of  a  shop,  the  inside  wiring  of 
which  was  done  under  an  independent  con- 
tract with  the  owner  thereof,  and  accepted 
by  him  and  approved  by  the  city  inspector, 
is  not  liable  for  injury  to  a  person  who  is 
in  such  building  as  a  mere  licensee,  caused 
by  reason  of  such  inside  wiring  having  be- 
come imperfectly  insulated  by  the  act  of  the 
owner,  without  notice  thereof  to  the  elec- 
tric company.  Minnesota  General  Elec.  Co. 
v.  Cronon,  20:  816,  166  Fed.  651,  92  C.  C. 
A.  345. 

28.  Evidence  that  the  insulation  on  elec- 
tric wires  in  a  highway,  between  14  and 
20  inches  from  the  railing  of  a  bridge,  had 
become  worn  and  defective,  and  had  ceased 
to  offer  any  protection  to  anyone  coming  in 
contact  with  them,  justifies  the  jury  in 
holding  the  electric  light  company  liable  for 
injuries  to  a  child  who  while  playing  on  the 
bridge  reached  out  and  touched  them.  Glos- 
ter  v.  Toronto  Electric  Light  Co.  1  B.  R. 
C.  786,  38  Can.  S.  C.  27. 

Guard  wires. 

See  also  infra,  31,  66. 

29.  A  jury  may  infer  negligence  on  the 
part  of  a  telephone  company  from  its  omis- 
sion to  place  a  guard  between  its  guy  wire 
and  an  electric  light  wire  with  which  it  is 
likely  to  become  crossed.  Guinn  v.  Dela- 
ware &  A.  Teleg.  &  Teleph.  Co.  (N.  J.  Err. 
&  App.)  3:  988,  62  Atl.  412,  72  N.  J.  L.  276. 
Injury  by  wrires  in  streets. 
Municipal  liability,  see  infra,  40-53. 
Injury  to  trespasser,  see  infra,  69,  72,   73, 

75. 

Contributory  negligence  of  person  injured, 
see  infra,  83,  84. 

Presumption  of  negligence  from  breaking  of 
wires,  see  Evidence,  II.  h,  1,  d. 

Liability  for  injury  by  telephone  wire  ob- 
structing street,  see  Highways,  274,  275. 

Judgment  in  favor  of  city  as  bar  to  action 
against  electric  company,  see  Judg- 
ment, 202. 

Liability  for  negligence  of  independent  con- 
tractor, see  Master  and  Servant,  1004. 

Sufficiency  of  allegation  to  show  that  fall  of 
wire  was  caused  by  negligence,  see 
Pleading,   330. 

Proximate  cause  of  injury  from  wire  in 
street,  see  Proximate  Cause,  58,  112. 

Question  for  jury  as  to,  see  Trial,  579-581. 

See   also   supra,   22-29. 

30.  One  transmitting  electricity  through 
wires  strung  along  the  public  highway, 
while  not  an  insurer,  is  bound  to  exercise 
the  greatest  possible  care  and  to  use  every 
possible  precaution  for  the  protection  of  the 
public.  Gloster  v.  Toronto  Electric  Light 
Co.  1  B.  R.  C.  786,  38  Can.  S.  C.  27. 

( Annotated ) 

31.  A  telephone  company  is  chargeable 
with  negligence  in  maintaining  a  guy  wire  in 
such  proximity  to  an  electric  light  wire  that 
it  is  likely  to  become  crossed  and  charged 
with    a    deadly    current    of  electricity,    al- 

63  . 


^94 


ELECTRICITY,  III.  a. 


though  the  danger  arises  from  the  running 
of  the  electric  light  wire  below  the  guy  wire, 
subsequently  to  the  constru:,tion  of  the  tele- 
j)lioiio  line.  Guinn  v.  Delaware  &,  A.  Teleg. 
&  Teleph.  Co.  (N.  J.  Err.  &  App.)  3:  988, 
62  Atl.  412,  72  N.  J.  L.  276. 

32.  An  electric  light  company  which  per- 
mits telephone  wires  to  be  strung  on  its 
poles  is  bound  to  see  that  such  wires  do  not 
come  in  contact  with  its  own  in  such  a  way 
as  to  become  charged  with  a  dangerous  cur- 
rent to  the  injury  of  travelers  on  the  high- 
way. Fox  V.  Manchester,  2:  474,  76  N.  E. 
1116,  183  N.  Y.  141. 

33.  Negligence  may  be  found  from  the 
hanging  of  a  live,  broken  electric- light  wire 
on  a  pole  in  a  much-used  public  street  at 
about  the  level  of  the  heads  of  the  people, 
and  leaving  it  there  two  days  without  at- 
tention. Fisher  v.  New  Bern,  5:  542,  53  S. 
E.  342,  140  N.  C.  506. 

34.  That  one  guilty  of  negligently  per- 
mitting a  broken  electric  wire  to  remain 
in  an  exposed  position  in  a  public  street 
thought  that  it  did  not  carry  enough  elec- 
tricity to  be  dangerous  will  not  absolve 
him  from  liability  for  the  death  of  one 
coming  in  contact  with  it.  Fisher  v.  New 
Bern,  5:  542,  53  S.  E.  342,  140  N.  G.  506. 

35.  A  telephone  company  is  guilty  of 
negligence  in  placing  its  telephone  wires 
only  13  feet  above  a  road  crossing,  and  per- 
mitting such  wires  to  become  slack  and  to 
sag  until  they  interfere  with  legitimate 
travel,  under  a  statute  requiring  such  wires 
to  be  placed  20  feet  above  the  road  cross- 
ings. Weaver  v.  Dawson  County  Mut. 
Teleph.  Co.  22:  1189,  118  N.  W.  650,  82  Neb. 
696. 

36.  A  vendor  of  electricity  which  turns  a 
powerful  current  onto  private  wires  strung 
along  a  highway  is  bound  to  inspect  them 
from  time  to  time,  to  see  that  they  are  se- 
curely fastened  and  properly  insulated,  al- 
though l^hey  do  not  belong  to  it.  Lewis  v. 
Bowling  Green  Gaslight  Co.  22:  1169,  117  S. 
W.  278,  135  Ky.  611.  (Annotated 

37.  An  electrical  company  is  not  liable 
for  the  death  of  one  driving  in  a  highway, 
by  his  vehicle  coming  in  contact  with  a  wire 
negligently  permitted  to  sag  after  being 
strung  across  the  street  by  one  to  whom  it 
has  agreed,  if  such  person  will  place  the 
wires  for  reception  of  the  current,  and  con- 
nect them  with  the  poles  of  the  electrical 
company,  to  furnish  current  free  of  charge 
for  a  celebration  in  a  park,  and  the  over- 
turning of  the  seat  thereby,  if  the  company 
has  no  notice  of  the  defective  condition  of 
the  wire.  San  Antonio  Gas  &  Electric  Co. 
V.  Ocon,  39:  1046,  146  S.  W.  162,  105  Tex. 
139.  (Annotated) 

38.  An  electric  light  and  power  company 
which,  pursuant  to  a  right  granted  by  its 
franchise,  maintains  heavily  charged  electric 
wires  over  a  street,  and  the  employee  of 
one  who,  pursuant  to  a  licensee,  is,  to  the 
knowledge  of  the  electric  company,  moving 
a  building  of  greater  height  than  such  wires 
upon  such  street,  are  not  licensees  as  to 
each  other,  so  as  to  relieve  the  slectric  corn- 
Digest  1-52  L.R.A.(N.S.) 


pany  of  its  duty  to  have  its  wires  in  a  con- 
dition safe  for  the  house  mover's  employee 
to  handle.  Winegarner  v.  Edison  Light  & 
P.  Co.  28:  677,  109  Pac.  778,  83  Kan.  67. 

39.  It  is  the  duty  of  an  electric  light 
and  power  company  having  heavily  charged 
wires  suspended  over  a  street  upon  which 
the  moving  of  buildings  of  greater  height 
than  the  wires  is  reasonably  to  be  antici- 
pated, to  insulate  the  wires,  or  to  take  sue!) 
other  precautions  as  are  necessary  to  guard 
against  injury  to  one  who  is  liable  to  be  up- 
on a  building  being  so  moved,  and  to  be 
brought  in  contact  with  such  wires,  for  a 
breach  of  which  duty,  resulting  in  injury, 
the  company  is  liable,  in  the  absence  of  con- 
tributory negligence  upon  the  part  of  the 
injured  party.  Winegarner  v.  Edison  Light 
&  P.  Co.  28:  677,  109  Pac.  778,  83  Kan. 
07. 

Wires  on  bnildings. 

Liability  to  trespassers,  see  infra,  74. 

Proximate  cause  of  injury,  see  Proximate 
Cause,  59. 

Mnnicipal  liability. 

Evidence  of  municipal  officer's  knowledge  of 
dangerous  condition  of  wire,  see  Evi- 
dence, 1585. 

Joint  liability,  see  Joint  Cbeditors  and 
Debtors,  17. 

Liability  for  negligence  of  independent  con- 
tractor, see  Master  and  Servant, 
1004. 

Question  for  jury  as  to,  see  Trial,  581. 

40.  A  municipal  corporation  which  vol- 
untarily exercises  its  authority  to  main- 
tain an  electric  plant  for  lighting  its 
streets  is  liable  for  injuries  to  a  property 
owner  by  negligently  permitting  a  live  wire 
to  fall  and  remain  upon  his  premises.  Ai- 
ken V.  Columbus,  12:  416,  78  N.  E.  657,  167 
Ind.   139. 

41.  That  a  municipal  corporation  oper^ 
ated  an  electric-light  plant  in  a  public  ca- 
pacity is  no  answer  to  a  claim  of  liability 
on  its  part  for  permit',  lUg  uninsulated  wire* 
to  obstruct  its  public  streets.  Palestine  v. 
Siler,  8:  205,  80  N.  E.  345,  225  111.  630. 

42.  The  transmission  of  electricity  for 
the  purpose  of  lighting  its  streets  may  be 
regarded  as  a  public  function  of  a  municipal 
corporation,  in  determining  whether  or  not 
it  is  liable  for  injuries  resulting  from 
negligence  in  so  doing,  notwithstanding  elec- 
tricity is  supplied  by  it  from  the  same 
wires  for  lighting  private  houses.  Irvine 
V.  Greenwood,  36:  363,  72  S.  E.  228,  89  S.  C. 
511. 

43.  Permitting  a  chain  so  charged  with 
electricity  as  to  be  dangerous  to  human 
life,  to  hang  from  an  electric  light  pole  in 
a  highway,  is  within  the  operation  of  a 
statute  giving  any  person  injurgd  by  a 
defect  in  a  street  an  action  for  the  resulting 
damages,  against  the  municipality.  Irvine 
V.  Greenwood,  36:  363,  72  S.  E.  228,  89  S.  C. 
511. 

44.  To  render  a  municipal  corporation 
liable  for  injuries  to  a  person  walking  on 
a  sidewalk  by  coming  in  contact  with  a  live 
electric  wire  stretched  across  the  walk,  it 


ELECTRICITY,  III.  a. 


995 


need  not  be  shown  that  he  necessarily  came 
•  in    contact    with     it.       Palestine     v.     Siler, 
8:  205,  80  N.  E.  345,  225  111.  6iS0. 

45.  A  municipal  corporation  which  care- 
lessly and  negligently  constructs  an  elec- 
tric-lighting plant  cannot  escape  liability 
for  injuries  thereby  caused  to  persons  on 
its  streets  by  casting  upon  them  the  burden 
of  notice  of  the  dangerous  character  of 
electricity.  Palestine  v.  Siler,  8:  205,  80  N. 
E.  345,  225  111.  630. 

46.  A  city  is  not  liable  for  injury  to  a 
policeman  who,  without  the  knowledge  of 
the  owner,  climbs  upon  a  roof  at  night  to 
look  for  gambling  in  the  next  building,  and 
while  there  is  burned  by  a  defectively  insu- 
lated municipal  electric-light  wire;  and  nei- 
ther his  official  character,  nor  the  fact  that 
the  mayor  assents  to  his  plan,  will  aid  him, 
since  the  latter  does  not  act  for  the  city 
as  owner  of  the  light  plant,  and  the  officer 
is  at  best  a  mere  licensee.  Greenville  v. 
Pitts,  14:  979,  107  S.  W.  50,  102  Tex.  I. 

47.  A  municipal  corporation  is  not  liable 
for  injuries  caused  by  the  dangerous  con- 
dition of  wires  maintained  in  its  streets  by 
an  electric  company,  unless  it  has  notice 
thereof,  or  J,he  condition  is  apparent  and 
the  danger  obvious.  Fox  v.  Manchester,  2: 
474,  75  N.  E.  1116,  183  N.  Y.  141. 

48.  A  municipal  corporation  is  under  no 
obligation  to  inspect  electric  wires  main- 
tained by  others  in  its  streets,  to  ascertain 
whether  or  not  they  are  safe,  if  it  has  no 
notice,  and  there  is  nothing  in  the  condition 
to  indicate,  that  they  are  dangerous.  Fox 
V.  Manchester,  2:  474,  75  N.  E.  1116,  183  N. 
Y.  141.  (Annotated) 

49.  That  children  receive  shocks  from  a 
broken  telephone  wire  in  a  highway  does 
not  charge  the  municipal  authorities  with 
the  duty  of  inspecting  the  line  to  show  that 
it  is  not  in  contact  with  a  dangerous  cur- 
rent. Fox  V.  Manchester,  2:  474,  75  N.  E. 
1116,  183  N.  Y.  141. 

50.  A  municipal  corporation  is  not  re- 
quired to  inspect  the  wiring,  installation, 
apparatus,  and  appliances  of  an  electric 
light  plant  operating  in  the  city  under  a 
franchise,  to  discover  defects  therein,  but 
if  it  permits  the  maintenance  in  the  street 
of  a  system  of  electrical  wiring  a  portion 
of  which  extends  into  a  sidewalk,  constitut- 
ing an  obstruction  thereof  and  creating 
a  condition  so  inherently  dangerous  as  to 
amount  to  a  nuisance, — one  that  consti- 
tutes a  peril  and  menace  to  persons  using 
the  street, — and  it  has  knowledge  of  such 
condition  and  of  the  danger,  or  the  cir- 
cumstances are  such  that  knowledge  will  be 
implied,  it  may  be  liable  to  a  person  in- 
jured because  of  such  dangerous  obstruc- 
tion. Shawnee  v.  Sears,  50:  885,  137  Pac. 
107,  39  Okla.  789. 

51.  A  municipal  corporation  is  liable 
for  an  injxiry  caused  by  a  dangerous  ob- 
struction in  the  street  which  results  from 
a  disarranged  or  defective  system  of  elec- 
trical wiring,  maintained  lawfully  in  the 
streets  by  others  than  the  municipal  corpo- 
ration itself,  only  where  it  had,  or  by  the 
exercise  of  reasonable  care  would  have  ob- 
Digest  1-52  L.R.A.(N.S.) 


tained,  notice  of  the  particular  defective 
and  dangerous  condition  which  produced  the 
injury,  with  reasonable  opportunity  to 
remedy  the  dangerous  condition  before  the 
injury  occurred.  Shawnee  v.  Sears,  50: 
885,  137  Pac.  107,  39  Okla.  789. 

52.  A  municipal  corporation  which 
grants  to  a  power  company  the  right  to 
string  wires  upon  a  bridge  which  it  main- 
tains as  part  of  its  highway  system,  under 
proper  authority,  ever  a  boundary  river, 
acts  in  its  private  capacity,  and  is  liable 
for  injury  to  its  employee,  whose  duties 
require  him  to  be  upon  the  bridge,  by  a 
disruptive  discharge  from  the  insufficient- 
ly insulated  wires,  as  to  the  danger  from 
which  he  was  not  warned.  Iloppe  v.  Wi- 
nona, 33:  449,  129  N.  W.  577,  113  Minn. 
252.  (Annotated) 

53.  A  municipal  corporation  maintain- 
ing an  electric-light  plant,  which  for  com- 
pensation installs  in  a  business  place  a 
light  which  is  imperfectly  insulated,  is  li- 
able to  an  employee  of  the  consumer  for  in- 
juries caused  by  his  coming  in  contact  with 
an  electric  current  when,  to  warm  his  hand, 
he  puts  it  to  the  globe.  Thomas  v.  Somer- 
set, 7:  963,  97  S.  W.  420,  30  Ky.  L.  Rep.  131. 
Joint  liability. 

Contribution  between  joint  wrongdoers,  see 

Joint  Creditors  and  Debtors,  17. 
Judgment  in  favor  of  city  as  bar  to  action 
against    electric    company,    see    Judg- 
ment, 202. 
See  also  supra,  17. 
Injury    to    licensees    or    employees    of 

third  persons. 
Through  defect  in  insulation,  see  supra,  21, 

22,   54-57. 
Contributory  negligence,   see  infra,   77,   78, 

81,   85-87. 
Evidence  on  question  of  negligence,  see  Evi- 
dence, 1791. 
Evidence   as  to  condition   of  insulation   at 

other  times,  see  Evidence,  1877. 
Effect  of  release  of  master   from  liability, 
see  Joint  Creditors  and  Debtors,  32, 
33. 
Master's  duty  to  warn  or  instruct  his  own 
servants,    see    Master    and    Servant, 
226,  227,  245. 
Master's  duty  as  to  electrical  uses  and  ap- 
pliances, see  Master  and  Servant,  295- 
300. 
Master's  duty  to  employee  as  to  inspection, 

see  Master  and  Servant,  442. 
Assumption  of  risk  by  linemen,  see  Master 

AND  Servant,  498,  518,  575. 
Liability  of  master  for  injury  to  servant  by 
negligence  of  fellow  servant,  see  Master 
AND  Servant,  727,  796,  797. 
Liability  for  negligence  of  independent  con- 
tractor, see  Master  and  Servant,  1004. 
Proximate  cause  of  injury  as  question  for 

jury,  see  Trial,  190. 
See  also  supra,  27. 

54.  An  electric  light  company  which 
knows  that  an  employee  of  a  telephone  com- 
pany has  made  use  of  one  of  the  light 
company's  poles  to  repair  the  telephone  line 
which  ovcriiangs  the  light  company's  wires 
at  that  point,  and   that   the   work   is   not 


096 


ELECTRICITY,  III.  a. 


completed  at  close  of  working  hours,  and 
has  reason  to  believe  that  he  will  return 
to  complete  the  work  on  the  following 
morning,  is  under  no  obligation  to  keep  the 
line  safe  for  his  use,  and  therefore  cannot 
be  held  liable  for  turning  on  the  current 
while  he  is  working  at  that  point,  to  his 
injury,  without  actual  knowledge  that  he 
is  thereby  put  in  peril.  Denison  Light  & 
Power  Co.  v.  Patton,  45:  303,  154  S.  W, 
540,  105  Tex.  621.  *  (Annotated) 

55.  An  electric  company  which  maintains 
cross-arms  and  wires  on  another's  pole  is 
not  liable  for  injury  to  an  employee  of  a 
third  company,  which  also  makes  use  of 
the  pole,  by  the  breaking  of  a  cross-arm 
under  his  weight,  if  it  was  not  aware  of 
ita  defective  condition,  and  the  defect  could 
have  been  detected  by  the  injured  person  by 
proper  inspection  as  readily  as  by  the  com- 
pany. Consolidated  Gas,  E.  L.  &  P.  Co.  v. 
Chambers,  26:  509,  75  AtJ.  241,  112  Md.  324. 

56.  An  electric  company  whose  wires  are 
strung  upon  the  poles  of  a  telephone  com- 
pany owes  the  telephone  company's  em- 
ployees whose  duties  take  them  upon  such 
poles  the  affirmative  duty  of  exercising  com- 
mensurate care  to  protect  them  from  danger 
due  to  its  wires  carrying  a  dangerous  cur- 
rent. Musolf  V.  Duluth  Edison  Electric  Co. 
24:  451,  122  N.  W.  499,  108  Minn.  369. 

57.  A  telephone  lineman  who  was  killed 
by  a  wire  in  his  hands  coming  in  contact 
with  a  heavily  charged  wire  of  an  electric 
company,  while  working  upon  telephone 
wires  strung  upon  poles  belonging  to  the 
telephone  company,  was  on  the  premises  of 
his  employer,  and  was  neither  a  trespasser 
nor  a  licensee,  although  the  electric  wires 
were  also  strung  upon  the  same  poles,  under 
an  agreement  between  the  two  companies. 
Musolf  V.  Duluth  Edison  Electric  Co.  24: 
451,  122  N.  W.  499,  108  Minn.  369. 

58.  A  corporation  engaged  in  the  genera- 
tion of  electricity  is  bound,  upon  contract- 
ing with  a  stranger  for  the  performance  of 
work  within  its  building,  to  l<eep  its  wires  so 
protected  and  insulated  as  to  be  safe  for 
workmen  whose  duties  require  them  to  be 
in  their  vicinity.  Kyan  v.  St.  Louis  Transit 
Co.  2:  777,  89  S.  W.  865,  190  Mo.  621. 

(Annotated) 

59.  A  corporation  engaged  in  the  genera- 
tion of  electricity  is  not  absolved  from  lia- 
bility for  the  death  of  a  workman  who  comes 
upon  its  premises  to  do  work  as  the  repre- 
sentative of  an  independent  contractor, 
which  results  from  his  accidental  contact 
with  a  defectively  insulated  wire  in  the  per- 
formance of  his  work,  on  the  ground  that 
such  an  injury  could  not  reasonably  have 
been  anticipated,  and  could  have  happened 
only  under  exceptional  circumstances.  Ry- 
an V.  St.  Louis  Transit  Co.  2:  777,  89  S.  W. 
865,   190  Mo.   621. 

60.  An  electric-light  company  causing 
the  death  of  a  person  by  negligently  leav- 
ing a  live  wire  on  the  grovmd  cannot  escape 
liability  because  such  person  was  at  the 
time  on  a  patli  leading  across  a  vacant  lot, 
where  the  owner  had  for  many  years  per- 
mitted the  public  to  use  the  path,  so  that 
Digest   1-52  L.R.A.(N.S.) 


the  deceased  might  be  regarded  as  a  li- 
censee. Davoust  V.  Alameda,  5:  536,  84 
Pac.  760,  149  Cal.  69. 

61.  The  foreman  of  an  electric  company 
is  not  a  mere  volunteer  in  attempting 
to  remove  from  the  line  tlie  broken  wire  of 
a  telephone  company  which  has  been  left 
dangling  near  its  pole,  for  the  purpose  of 
protecting  his  men  from  accident,  witliout 
notifying  the  telephone  company  to  remove 
the  wire  itself,  so  as  to  be  entitled  to  hold 
the  telephone  company  liable  only  for  wil- 
ful or  wanton  injury.  New  England 
Teleph.  &  Teleg.  Co.  v.  Moore,  31:  617,  179 
Fed.  364,  102  C.  C.  A.  642.  (Annotated) 

62.  A  disinterested  person  who  volunta- 
rily and  uninvited  enters  a  building  to  as- 
certain the  cause  of,  and  to  extinguish,  a 
fire  therein,  is  a  mere  licensee,  to  whom  a 
company  furnishing  the  electric  current  for 
the  lighting  thereof  owes  no  obligation  oth- 
er than  not  wantonly  or  knowingly  to  injure 
him.  Minnesota  General  Elec.  Co.  v.  Cro- 
non,  20:  816,  166  Fed.  651,  92  C.  C.  A.  345. 

63.  An  electric  company  does  not  owe 
to  firemen  the  duty  of  cutting  off  from  a 
district  the  power  which  supplies  the  elec- 
tric lights  therein,  upon  receiving  notice 
that  a  fire  has  broken  out  there.  Penne- 
baker  v.  San  Joaquin  Light  &  Power  Co. 
31:  1099,  112  Pac.  459,  158  Cal.  579. 

(Annotated) 

64.  An  electric  company  which  has  no 
actual  knowledge  of  the  fact  that  wires 
which  had  carried  into  a  burning  building 
a  current  not  ordinarily  dangerous  to  hu- 
man life  had  fallen  therefrom,  and  become 
dangerous  to  persons  who  might  be  about 
the  premises,  is  not  guilty  of  negligence 
in  failing  to  care  for  them,  so  as  to  be 
liable  for  injury  to  a  fireman  who  comes 
into  contact  with  them  in  the  performance 
of  his  duties.  Pennebaker  v.  San  Joaquin 
Light  &  Power  Co.  31:  1099,  112  Pac.  459, 
158  Cal.  579. 

65.  An  electric  light  company  does  not 
owe  to  Bremen  the  duty  of  maintaining 
an  employee  at  a  fire  which  may  occur  in 
a  district  which  it  supplies  with  power, 
for  the  purpose  of  disconnecting  the  wires 
in  case  they  are  interfered  with  and  made 
dangerous  by  the  fire.  Pennebaker  v.  San 
Joaquin  Light  &  Power  Co.  31:  1099,  112 
Pac.  459,  158  Cal.  579. 

Injnry  to  trespassers. 

66.  A  telephone  company  which  main- 
tains a  guy  wire  in  such  a  position  that  it 
is  likely  to,  or  does,  become  crossed  with  an 
electric  light  wire,  and  charged  with  a  dead- 
ly current  of  electricity,  and  breaks,  coming 
in  contact  with  and  killing  one  walking  in 
an  open  field  which  the  public  are  accus- 
tomed to  cross  without  objection  by  the 
landowner,  is  chargeable  with  a  duty  to  the 
decedent  to  exercise  due  care  in  the  main- 
tenance of  its  wires,  although  he  is  a  tres- 
passer as  between  himself  and  the  landown- 
er. Guinn  v.  Delaware  &  A.  Teleg.  & 
Teleph.  Co.  (N.  J.  Err.  &  App.)  3:  9S8,  62 
Atl.  412,  72  N.  J.  L.  276.  (Annotated) 

67.  A  corporation  which  permits  a  guy 
wire  to  get  loose  and  hang    against    wirpS 


ELECTPJCITY,  III.  b. 


997 


carrying  a  deadly  current  of  electricity  to 
its  factory,  at  a  place  used,  to  its  knowl- 
edge, actual  or  imputed,  by  children  of  the 
neighborhood  as  a  playground,  will  be  liable 
for  the  death  of  a  child  who  comes  in  con- 
tact with  the  wire,  although  he  is  in  fact  a 
trespasser.  Ferrell  v.  Dixie  Cotton  Mills, 
37:  64,  73  S.  E.  142,  157  N.  C.  528. 

68.  That  small  children  had  been  driven 
away  from  a  pole  from  which  a  guy  wire 
hung  in  contact  with  wires  carrying  a  dead- 
ly electrical  current,  about  which  they  were 
trespassers,  but  were  in  the  habit  of  play- 
ing, does  not  absolve  the  owner  of  the  pole 
from  liability  in  case  one  is  injured  by 
coming  in  contact  with  the  wire,  i^'errell  v. 
Dixie  Cotton  Mills,  37:  64,  73  S.  E.  142, 
157  N.  C.  528. 

69.  An  electric  company  is  not  liable  for 
injury  to  a  child  from  a  highly  charged 
wire  which  it  maintains  18  feet  above  the 
surface  of  the  street,  by  the  fact  that  the 
child  might  reach  it  by  climbing  the  pole 
or  walking  up  a  guy  wire  belonging  to  an- 
other company,  which  runs  near  it  from  an 
adjoining  lot  to  a  higher  pole  in  the  street. 
Maytield  Water  &  L.  Co.  v.  Webb,  18:  179, 
111  S.  W.  712,  129  Ky.  395. 

70.  An  electric  company  which  leaves 
high    tension    wires    improperly    insulated 

Xiear  the  ground  inside  a  walled  churchyard 
is  not  liable  for  injury  to  a  boy  who  acci- 
dentally stumbles  against  them  in  attempt- 
ing to  recover  his  ball  from  the  yard,  where 
the  wall  is  so  high  that  boys  could  not  easily 
scale  it,  and  the  company  had  no  notice  that 
boys  were  in  the  habit  of  visiting  the  yard, 
although  in  fact  stones  were  so  placed 
against  the  wall  as  to  give  access  to  the 
yard  from  an  adjoining  playground.  Meyer 
V.  Union  Light,  H.  &  P.  Co.  43:  136,  151  S. 
W.  941,  161  Ky..  332.  (Annotated) 

71.  An  electric  railway  company  main- 
taining an  unprotected  third  rail  carrying 
a  heavy  current,  on  its  right  of  way  at  a 
point  where  the  right  of  way  is  securely 
fenced  against  intruders,  is  not  liable  for 
injury  to  a  child  who  wanders  through  a 
gate  maintained  in  the  fence  by  an  abut- 
ting property  owner,  and  comes  in  contact 
with  such  rail,  although  there  is  nothing 
to  distinguish  the  dangerous  rail  from  the 
harmless  ones.  Riedel  v.  West  Jersey  & 
S.  R.  Co.  28:  98,  177  Fed.  374,  101  C.  C.  A. 
428.  (Annotated) 

72.  One  carrying  heavily  charged  and  im- 
perfectly insulated  electric  wires  across  a 
river  by  supports  attached  to  tiie  side  of  a 
bridge  is  not  liable  for  tho  death  of  a  boy 
who  comes  in  contact  with  the  wires,  where 
Buch  contact  would  not  be  possible  by  any 
use  to  which  the  bridge  would  ordinarily 
be  put,  but  must  result  from  an  attempt 
to  climb  out  on  to  the  supports,  which 
act  the  owner  of  the  wires  is  not  bound  to 
anticipate.  Wetherby  v.  Twin  State  Gas  & 
E.  Co.  25:  1220,  75  Atl.  8,  83  Vt.  189. 

(Annotated) 

73.  A  telephone  company  is  not  liable 
for  injury  to  a  child  caused  by  its  climbing 
guy  wires  running  from  adjacent  property 
to  its  pole  in  the  street,  and  coming  in  con- 
Digest  1-52  Ii.R.A.(N.S.) 


tact  with  a  highly  charged  electric-light 
wire  near  which  the  guy  wires  pass,  al- 
though they  are  so  arranged  as  to  be  easily 
climbed,  since  the  child,  in  going  upon  them, 
is  a  trespasser,  and  they  are  not  within  the 
rule  governing  dangerous  instrumentalities 
attractive  to  children.  Mayfield  Water  & 
L.  Co.  v.  Webb,  18:  179,  111  S.  W.  712,  129 
Ky.  395. 

74.  An  electric  company  which  maintains 
defectively  insulated  wires  over  another's 
roof  for  violation  of  a  penal  ordinance  of 
the  municipal  corporation  is  not  liable  for 
the  death  of  a  boy  who,  in  trespassing  upon 
the  roof,  comes  in  contact  with  the  wires 
and  is  killed.  Burnett  v.  Fort  Worth  Light 
&  P.  Co.  19:  504,  112  S.  W.  1040,  102  Tex. 
31. 

75.  There  is  no  negligence  in  maintain- 
ing spikes  on  poles  supporting  electric 
wires  in  a  public  highway  to  assist  em- 
ployees in  climbing  the  poles  which  will 
render  the  owner  liable  for  injuries  to  an 
abutting  property  owner  who  uses  them  to 
ascend  the  pole  in  pursuit  of  a  pet  kitten, 
and  comes  in  contact  with  a  live  wire,  to 
his  injury.  State  use  of  Stansfield  v.  Ches- 
apeake &  P.  Teleph.  Co.  52:  1170,  91  Atl. 
149,   123   Md.   120.  (Annotated) 

6.    Contributory    negligence    of   person 
injured. 

(See  also  sdim^  heading  in  Digest  L.R.A. 
l-HO.J 

Negligence  of  infant,  see  Negligence,  227. 

Contributory  negligence  of  parents  of  child 
injured  by  electric  wire,  see  Negli- 
gence, 230. 

Imputed  negligence,  see  Negligence,  253. 

As  question  for  jury,  see  Tbial,  583-585. 

See  also  supra,  28. 

76.  One  is  not  negligent  in  attempting  to 
put  up  iron  pipes  near  live  electric  wires, 
where  they  appear  to  be  properly  insulated. 
Ryan  v.  St.  Louis  Transit  Co.  2:  777,  89  S. 
W.  865,  190  Mo.  621. 

77.  An  employee  in  a  building  lighted  by 
electricity  has,  in  the  performance  of  his 
duties,  a  right  to  assume,  in  the  absence  of 
notice  to  the  contrary,  that  the  transform- 
er and  other  appHan  es  for  furnishing 
electricity  are  in  good  order  and  free  from 
defects.  Phelan  v.  Louisville  Electric  Light 
Co.  6:  459,  91  S.  W.  703,  122  Ky.  476. 

78.  A  volunteer  who,  having  been  warned 
of  the  danger  of  approaching  a  broken  elec- 
tric wire  which  he  knows  to  be  uninsulated 
and  to  carry  a  current  for  lighting  purposes, 
and  to  have  shocked  another  into  insensi- 
bility, approaches  the  wire  to  determine 
whether  or  not  it  is  still  live,  is  guilty  of 
such  negligence  that  no  recovery  can  be  had 
for  his  death  in  case  he  places  his  hand 
within  the  danger  zone,  and  a  shock  from 
the  wire  kills  him.  Carroll  v.  Grande  Ronde 
Electric  Co.  6:  290,  84  Pac.  389,  47  Or.  424. 

79.  One  seeing  a  wire  which  he  knows  to 
be  charged  with  a  dangerous  current  of 
electricity  is  bound  to  avoid  cbming  in  con- 


998 


ELECTRIC  LIGHTS. 


tact  therewith,  and  cannot  rely  on  the  own- 
er's duty  to  make  it  Sc'ife  by  insulation  as 
an  invitation  to  make  such  contact.  Graves 
V.  Washington  Water  Power  Co.  ii:  452,  87 
Pac.  956,  44  Wash.  675. 

80.  One  employed  in  connecting  pipes  in 
the  immediate  vicinity  of  live  electric  wires, 
which  he  knows  to  be  dangerous,  is  negli- 
gent if,  without  anything  to  distract  his 
attention,  he  forgets  the  danger  and  comes 
in  contact  with  a  wire  to  his  injury.  Ergo 
V.  Merced  Falls  Gas  &  Electric  Co.  41:  79, 
119  Pac.   101,   161   Cal.  334.        (Annotated) 

81.  A  fireman  who  goes  among  electric 
wires  which  have  fallen  from  a  burning 
building,  knowing  them  to  be  alive,  is 
guilty  of  negligence  which  will  prevent  a 
recovery  against  the  electric  company  in 
case  he  is  injured.  Pennebaker  v.  San  Joa- 
quin Light  &  Power  Co.  31:  1099,  112  Pac. 
459,  158  Cal.  579. 

82.  Persons  about  to  erect  a  building 
on  a  vacant  lot  cannot  be  charged  with 
negligence  in  failing  to  require  the  pro- 
tection or  remo/al  of  dangerous  electric 
wires  strung  across  the  lot,  if  there  is  noth- 
ing to  indicate  to  whom  they  belong,  or  that 
they  are  dangcroas.  Braun  v.  Buffalo  Gen- 
eral Electric  Co.  34:  1089,  94  N.  E.  206,  200 
N.  Y.  484. 

In  street.  •■-i\V<'H''>     ..'. 

Presumption  as  to  contributory  negligence 

of  child  injured  by,  see  Evidence,  474. 
Of  infant,  see  Negligence,  227. 
See  also  supra,  69,  73,  75. 

83.  One  killed  by  taking  hold  of  a  live 
electric  wire  stretched  across  a  public  side- 
walk will  not  be  held  to  have  been  negligent 
in  touching  the  wire,  unless  he  knew,  or 
had  reason  to  believe,  that  it  was  charged. 
Palestine  v.  Siler,  8:  205,  80  N.  E.  345,  225 
III.  630. 

84.  A  person  traveling  along  a  road  that 
is  crossed  by  a  telephone  line  is  not  bound 
to  anticipate  danger  at  such  crossing,  and 
is  not  required  to  examine  or  look  to  see 
if  there  is  danger  before  passing  under  such 
wire.  Weaver  v.  Dawson  County  Mut. 
Teleph.  Co.  22:  1189,  118  N.  W.  650,  82  Neb. 
696.  (Annotated) 
Linemen. 

Sufficiency  of  evidence  to  show  lineman's 
knowledge  of  danger,  see  Evidence, 
2179. 

Question  for  jury  as  to,  see  Trial,  495. 

See  also  Master  and  Servant,  632,  633. 

85.  Mere  notice  to  a  lineman  that  a  cer- 
tain pole  was  bad,  and  to  look  out  for  the 
wires,  is  not  sufficient  to  charge  him  with 
notice  as  matter  of  law  that  the  insulation 
of  the  wires  was  defective.  Miner  v.  Frank- 
lin CounlJy  Teleph.  Co.  26:  1195,  75  Atl. 
€53,  83  Vt.  311. 

86.  A  lineman  employed  by  an  electric 
light  company  was  not,  as  a  matter  of  law, 
guilty  of  contributory  negligence,  preclud- 
ing recovery  against  a  telephone  company 
for  his  death  in  consequence  of  his  foot 
slipping  and  coming  in  contact  with  an  un- 
insulated wire,  the  danger  of  which  was  not 
known  to  him  because  he  had  no  reason  to 
know  that  it  was  grounded,  in  relying  on 
Digest   1-52  I,.R.A.(N.S.) 


the  insulation  aflfordod  by  the  wooden  pole 
and  failing  to  wear  the  rubber  gloves  pro- 
vided by  his  employer  for  handling  wires 
charged  with  a  dangerous  voltage,  there  be- 
ing testimony  tending  to  show  a  custom 
among  the  employees  not  to  use  such  gloves 
in  cold  weather  for  the  reason  that  they 
prevented  the  men  from  using  their  hands 
effectively,  and  that  it  was  regarded  as 
proper  to  work  without  gloves,  except  on  a 
"bad  pole."  Snyder  v.  Mutual  Teleph.  Co. 
14:  321,  112  N.  W.  776,  135  Iowa,  215. 

87.  An  employee  of  a  telephone  company 
in  working  upon  the  company's  poles  upon 
which  are  also  strung  the  wires  of  an  elec- 
tric company  is  not  bound  to  anticipate 
negligence  on  the  part  of  the  latter  com- 
pany. Musolf  V.  Duluth  Edison  Electric  Co. 
24:  451,  122  N.  W.  499,  108  Minn.  369. 


ELECTRIC  LIGHTS. 

Exempting  electric  lighting  companies  from 
statute  forbidding  employment  of  un- 
licensed electricians,  see  Constitution- 
al Law,  242,  430. 

Action  for  electric  light  furnished  to  city, 
see  Election  of  Remedies,  33. 

Uses  and  dangers  of  electricity,  see  Elec- 
tricity. 

Exercise  of  eminent  domain  for  purpose  of 
supplying,  see  Eminent  Domain,  4,  5, 
47,  48,   71-73,   76,   78. 

Power  of  municipality  to  condemn  right  of 
way  for  spur  track  to  power  plant  used 
in  connection  with  electric  light  system, 
see  Eminent  Domain,  93. 

Judicial  notice  as  to  use  of  streets  for  poles 
and  wires,  see  Evidence,  55,  56. 

Evidence  as  to  injury  through  grounded 
current,  see  Evidence,  1792. 

Conduits  for  wires  in  highway,  see  High- 
ways, 53-57. 

Of  public  service  corporations;  injury  by, 
to  trees  in  highway,  see  Highways, 
114-117. 

Judgment  in  favor  of  defendant  in  action 
for  price  of,  as  bar  to  action  on  quan- 
tum meruit,  see  Judgment,  190. 

Mandamus  to  compel  furnishing  of,  see 
Mandamus,  122,  123. 

Liability  of  municipality  for  negligence  of 
employees  in  light  department,  see  Mu- 
nicipal Corporations,  417-420. 

Power  of  city  as  to,  generally,  see  Munici- 
pal Corporations,  II.  f,  1. 

Liability  for  negligence  in  attaching  arc 
light  to  ceiling,  see  Negligence,  1764. 

Rules  adopted  by  corporation  organized  to 
supply,  see  Public  Service  Corpora- 
tions, 3,  4. 

N^egligence  in  attaching  arc  light  to  ceiling, 
see  Negligence,  89. 

Electric  light  company  wrongfully  using 
street  as  a  nuisance,  see  Nuisances, 
100. 

Tax  on  electric  light  plant  owned  by  mu- 
nicipality, see  Taxes,  117,  118. 


ELECTRIC  RAILROAD— ELEVATED    RAILROADS. 


999 


Liability  of  town  for  injury  resulting  from 
unauthorized  operation  of  electric 
lighting  plant,  see  Tow>"S,  8. 

Discrimination  by  company. 

1.  A  provision  in  an  ordinance  granting 
a  franchise  to  an  electric  liglit  company, 
that  the  city  should  not  require  the  company 
to  make  "exteiisions,"  except  upon  certain 
conditions,  does  not  aifect  the  mutual  rights 
and  obligations  of  the  company  and  the  in- 
dividual residents  of  an  established  service 
zone.  State  ex  rel.  Mason  v.  Consumers' 
Tower  Co.  44:1181,  137  N.  W.  1104,  119 
Minn.  225. 

2.  A  provision  in  an  ordinance  granting 
a  franchise  to  an  electric  light  company, 
that  the  city  should  not  require  the  com- 
pany to  make  "extensions,"  except  upon 
certain  conditions,  does  not  affect  the  right 
of  a  resident  in  an  established  service  zone 
to  invoke  the  aid  of  the  courts  to  compel  the 
company  to  connect  his  premises  with  its 
line.  State  ex  rel.  Mason  v.  Consumers' 
Power  Co.  41:  1181,  137  N.  W.  1104,  119 
Minn.  225. 

3.  A  public  service  corporation  that  has 
accepted  a  franchise  from  a  city  to  operate 
therein  providing  that  it  shall  at  all  times 
during  the  life  of  the  franchise  furnish  and 
supply  electricity  to  all  customers  and  ap- 
plicants without  discrimination,  is  bound 
to  serve  all  alike  who  are  similarly  circum- 
stanced with  reference  to  its  system,  or  who 
are  members  of  a  class  to  which  it  has 
undertaken  or  is  otherwise  bound  to  furnish 
service.  State  ex  rel.  Mason  v.  Consumers' 
Power  Co.  41:  1181,  137  N.  W.  1104,  119 
Minn.  225. 

4.  Where  a  statute  confers  upon  electric 
light,  heat,  and  power  companies  the  right 
to  use  the  highways  of  a  state  for  the  pur- 
pose of  constructing  its  lines,  and  where 
such  companies  may  exercise  the  power  of 
eminent  domain,  a  corporation  organized 
for  such  purposes  is  a  public  service  corpo- 
ration and  is  bound  by  implication  of  law 
to  make  no  unreasonable  discrimination  be- 
tween those  to  whom  service  is  to  be  fur- 
nished, but  must  serve  all  alike  who  are 
similarly  circumstanced  with  reference  to 
its  system,  or  who  are  members  of  any  class 
which  it  has  undertaken  or  is  otherwise 
bound  to  serve.  State  ex  rel.  Mason  v.  Con- 
sumers' Power  Co.  41:  1181,  137  N.  W.  1104, 
119  Minn.  225. 

5.  It  is  unreasonable  discrimination 
for  an  electric  light  company  to  require  an 
applicant  for  service  to  procure  for  it  a 
right  of  way  to  his  premises,  when  such 
condition  is  not  imposed  upon  other  appli- 
cants and  patrons.  State  ex  rel.  Mason  v. 
Consumers'  Power  Co.  41:  1181,  137  N.  W. 
1104,   119  Minn.  225. 

6.  Where  the  premises  of  a  resident  of 
a  city  are  surrounded  by  residences,  one 
on  the  same  block  with  his,  which  are  sup- 
plied with  current  for  lighting  purposes  by 
an  electric  light  company,  such  resident  is 
within  an  established  service  zone  and  prima 
facie  is  entitled  to  the  same  service  accord- 
ed to  his  neighbors.  State  ex  rel.  Mason 
Digest  1-52  L.R.A.(N.S.) 


V.   Consumers'  Power   Co.   41:  1181,   137   N 
W.  1104,  119  Minn.  225. 


ELECTRIC  RAILROAD. 

As  carriers,  see  Carkiebs. 

Exemption  of,  from  operation  of  statute 
forbidding  employment  of  unlicensed 
electricians,  see  Constitutional  Law, 
242,  430. 

Contract  to  pay  bonus  to,  see  Contracts, 
151,  357,  360;   Evidence,   1003. 

Uses  and  dangers  of  electricity,  see  Elec- 
tricity. 

Liability  of,  for  damage  due  to  leaking  of 
electricity,  see  Electricity,  2,  3. 

As  additional  servitude  on  highway,  see 
Eminent  Domain,  303-309. 

Presumption  as  to  negligence  of,  see  Evi- 
dence, 411. 

As  to  interurban  railways,  see  Inteburban 
Railways. 

Operation  of,  see  Street  Railways,  III. 


ELECTROCUTION. 


Validity  of  statute  providing  for  infliction 
of  death  penalty  by,  see  Constitution- 
al Law,  39.  ..  ,■     .. , 


ELECTROLYSIS. 


Liability  for  injury  due  to,  see  Electric- 
ity, ff,  -  '     ' 


ELEEMOSYNARY   INSTITUTIONS. 

In  general,   see   Charities. 
Exemption   of,    from   taxation,   see   Taxes, 
I.  f,  3. 


ELEVATED  RAILROADS. 

Measure  of  damages  for  injuries  by  con- 
struction of,  see  Damages,  III.  1,  4,  b. 

Construction  of,  as  a  taking  of  property, 
see  Eminent  Domain,  192. 

Presumption  and  burden  of  proof  as  to  neg- 
ligence, see  Evidence,  405. 

Grant  by  abutting  owner  of  license  to  main- 
tain in  street,  see  License,  4. 

Street  railroads,  generally,  see  Street 
Railways. 

See  also  Cabriers. 

1.  An  elevated  railway  company  law- 
fully operating  in  a  public  street  is  not  li- 
able for  injury  to  a  person  in  the  street  be- 
low by  the  fall  of  sparks  from  the  train, 
which  are  the  inevitable  result  of  the  careful 


1000 


ELEVATORS,  I.,  II. 


iHTOau:! 


operation  of  the  road.  Carney  v.  Boston 
Elevated  R.  42:  90,  98  N.  E.  605,  212  Mass. 
179.  (Annotated) 


EI.EVATORS. 


/.  Grain  elevators. 
II.  Freight    and    passenger    elevators, 

1-24:. 

I.  Grain  elevators. 

(Bee  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of  statute  permitting  construction 
of  grain  elevators  on  ordinance  estab- 
lishing fire  limits,  see  Buudings,  22. 

Discrimination  by  carrier  in  delivery  of 
cars  to,  see  Carriers,  1056. 

Taxation  of  grain  in  elevators  as  interfer- 
ence with  interstate  commerce,  see 
Commerce,  152. 

Judicial  notice  that  grain  entering  Chicago 
may  be  switched  to,  see  Evidence,  38. 

Verdict  in  joint  action  against  railroad 
company  and  elevator  company  for  in- 
jury to  latter's  employee,  see  I'bial, 
1144. 

As  to  warehousemen,  see  Warehousemen. 

II.  Freight  and  passenger  elevators. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Measure  of  damages  for  failure  to  perform 
contract  to  erect,  see  Damages,  110. 

Presumption  of  negligence  from  fall  of,  in- 
juring employee,  see  Evidence,  423. 

For  lowering  goods  from  sidewalk  to  base- 
ment as  a  nuisance,  see  Highways,  194. 

Eviction  of  tenant  by  failure  of  landlord  to 
keep  elevators  in  repair,  see  Landlord 
AND  Tenant,  65. 

Licensing  operators  of,  see  License,  62. 

Injury  to  servant  on,  generally,  see  Master 
AND  Servant,  207,  288-293. 

Liability  for  injury  to  servant  of  contractor 
while  painting  shaft,  see  Master  and 
Servant,  477. 

As  dangerous  machine  on  which  children 
may  not  be  employed,  see  Master  and 
Servant,  170. 

Master's  duty  to  warn  servant  as  to  dan- 
ger, see  Master  and  Servant,  243,  251. 

Master's  duty  to  inspect,  see  Masteb  and 
Servant,  443,  444. 

Assumption  by  servant  of  risk  of  injury 
from,  see  Master  and  Servant,  497, 
566. 

One  operating  elevator  as  fellow  servant, 
see  Master  and  Servant,  751,  793, 
794. 

Who  are  fellow  servants  in  coal  elevator, 
see  Master  and  Servant,  835. 

Liability  for  injury  to  employee  through 
defect  in  elevator  and  negligence  of 
fellow  servant,  see  Master  and  Serv- 
ant, 746. 

Bigest  1-52  L.R.A.(N.S.) 


Assault  by  elevator  man,  see  Master  and 

Servant,  972,  973. 
Liability  of  city  for  injury  by  elevator,  see 

Municipal  Corporations,  466,  407. 
Liability  of  agent  in  charge  of  building  for 

injury  by,  see  Principal  and  Agent, 

113. 
Instruction  in  action  for  injury  by  falling 

into  well,  see  Trial,  1039. 
Duty    of   water    company   to   supply   water 

for  running  of,  see  Waters,  342,  356. 

1.  A  youth  under  the  age  of  sixteen 
years  is  acting  illegally  in  undertaking  to 
operate  an  elevator,  where  the  statute  pro- 
vides that  no  elevator  shall,  under  penalty, 
be  operated  by  anv  such  person.  Moran  v. 
Dickinson,  48:  675,'  90  N.  E.  1150,  204  Mass. 
559. 

2.  The  liability  of  a  master  for  the  kill- 
ing of  a  person  by  the  negligent  starting  of 
an  elevator  is  not  affected  by  the  fact  that 
the  operator  of  the  car  is  a  boy,  but  is  tested 
by  the  latter's  acts  as  measured  by  tlie 
standard  that  would  be  applied  in  the  case 
of  a  careful  and  experienced  man.  Davis  v. 
Ohio  Valley  Bkg.  &  T.  Co.  15:  402.  106  S.  W. 
843,  127  Ky.  800. 

Injury  to  passenger. 

Burden  of  establishing  charge  of  negligence 
as  to,  see  Evidence,  92. 

Presumption  of  negligence  from  fall  of,  see 
Evidence,  ^2,  423,  406,  467. 

Evidence  in  action  for  injuries  received 
from  operation  of,  see  Evidence,  790. 

Sufficiency  of  evidence  to  show  negligence  as 
to,    see   Evidence,   2129. 

Landlord's  liability  for  injury  to  tenant's 
employee  in,  see  Landlord  and  Te.n- 
ant,  178,  179. 

Liability  of  master  for  negligence  of  one 
directed  by  employee  to  operate  eleva- 
tor, see  Master  and  Servant,  23. 

Master's  liability  for  negligence  of  opera- 
tor, see  Master  and  Servant,  913. 

Liability  of  owner  of  building  for  negligent 
act  of  janitor,  see  Master  and  Serv- 
ant, 882. 

Elevator  as  dangerous  agency  in  hands  of 
servant,  see  Master  and  Servant, 
890. 

Liability  of  master  for  negligence  of  inde- 
pendent contractor  in  running,  see 
Master  and  Servant,  1011. 

Pleading  in  action  for  injury,  see  Plead- 
ing, 287. 

Proximate  cause  of  injury  to  passenger  on, 
see  Proximate  Cause,  96. 

Question  for  jury  as  to,  see  Trial,  128. 

3.  One  operating  an  elevator  for  the 
purpose  of  carrying  employees  is  not  a 
common  carrier  of  passengers.  Walsh  v. 
Cullen,  18:  911,  85  is.  E.  223,  235  111.  91. 

(Annotated) 

4.  Owners  and  operators  of  passenger 
elevators  owe  to  their  passengers  the  duty 
to  exercise  the  highest  degree  of  care  for 
their  safe  transportation.  Shellaberger  v. 
Fisher,  5:  250,  143  Fed.  937,  75  C.  C.  A.  9. 

5.  The  liability  of  the  of  a  owner  of  a 
building,  who  maintains  in  it  an  elevator 
for  the  use   of  his   tenants   and  their  cus- 


:yv:Ay:y.    elevators,  il 


1001 


tomers,  is  not  that  of  a  common  carrier  of 
passengers;  the  rule  of  reasonable  care 
being  the  measure  of  his  duty.  Edwards 
V.  Manufacturers'  Bldg.  Co.  2:  744,  61  Atl. 
646,  27  R.  I.  248.  (Annotated) 

6.  One  operating  an  elevator  by  which 
passengers  are  carried  is  bound  to  exercise 
the  high  degree  of  care  which  prudent  and 
competent  men  exercise  imder  like  circum- 
stances. Orcutt  V.  Century  Bldg.  Co.  8:  929, 
99  S.  W.  1062,  201  Mo.  424. 

7.  The  proprietor  of  a  hotel  who  main- 
tains a  passenger  elevator  therein  owes  to 
every  person  who  has  lawful  business  on 
the  premises,  and  who  has  occasion  to  use 
the  elevator  for  transportation  from  floor 
to  floor,  the  duty  of  exercising  at  least  or- 
dinary care  in  the  character  of  the  appli- 
ance provided,  and  in  its  operation,  whether 
such  person  be  guest,  visitor,  or  otherwise. 
McCracken  v.  Mevers  (N.  J.  Err.  &  App.) 
16:  290,  68  Atl.  805,  75  N.  J.  L.  935. 

(Annotated) 

8.  One  who,  because  of  misconduct,  has 
been  prohibited  from  riding  in  a  passenger 
elevator,  cannot  claim  the  rights  of  a  j)as- 
senger  if  injured  by  an  accident  to  the  ele- 
vator while  on  his  way  to  do  business  with 
a  tenant  of  the  building.  Ferguson  v.  Tru- 
ax,   14:  350,   112   N.   W.   513,   132  Wis.   478. 

(Annotated) 

9.  The  owner  of  a  building  who  main- 
tains an  elevator  therein  for  the  use  of  ten- 
ants is  not  liable  for  injury  to  a  guest  of 
the  operator  who,  without  the  owner's  au- 
thority, is  invited  by  the  operator  to  ride 
for  pleasure,  and  is  injured  by  the  acciden- 
tal starting  of  the  elevator  before  he  is 
safely  inside.  Sweeden  v.  Atkinson  Improv. 
Co.  27:  124,   125  S.  W.  439,  93  Ark.  397. 

9a.  The  doctrine  of  attractive  nuisance 
will  not  support  a  recovery  by  a  child, 
guest  of  an  elevatoi  operator,  against  the 
owner,  for  injury  due  to  its  negligent  opera- 
tion while  the  child  is  attempting  to  enter 
it  to  ride  upon  invitation  of  the  operator. 
Sweeden  v.  Atkinson  Improv.  Co^.  27:  124, 
125  S.  W.  439,  93  Ark.  897. 

10.  The  operation  of  an  automatic,  push- 
button, electrical  passenger  elevator  is  not 
negligence  which  is  actionable  by  any  pas- 
senger, except  a  child  of  yaars  tender  that 
he  cannot  know  the  c^  ^ger  and  appreciate 
the  risk  of  his  contact  with  the  door  or 
side  of  the  shaft  when  the  car  is  moving, 
because  a  passenger  of  sufficient  maturity 
and  discretion  to  appreciate  v,his  danger  and 
risk  would  be  guilty  of  contributory  negli- 
gence if  he  permitted  himself  to  suffer  from 
it.  Shellaberger  v.  Fisher,  5:  250,  143  Fed. 
937,  75  C.  C.  A.  9. 

11.  A  waitress  in  a  hotel  who  has,  ac- 
cording to  custom,  gone  for  a  walk  after 
her  day's  duties  are  done,  is  not,  in  at- 
tempting to  use  the  elevator  to  return  to 
her  room,  preparatory  to  resuming  her  du- 
ties in  the  morning,  a  passenger  towards 
whom  the  hotel  keeper  owes  the  duty  of  a 
common  carrier.  Walsh  v.  Cullen,  18:  911, 
85  N.  E.  223,  235  111.  91. 

Person  riding  on  top  of  car. 

12.  A  bov  who.  with  the  knowledge  or 
Digest   1-52  L.R.A.(N.S.) 


implied  consent  of  an  elevator  operator, 
rides  on  top  of  the  car,  is  not  a  trespasser, 
either  while  riding  or  while  trying  to  get  ofl". 
Davis  v.  Ohio  Valley  Bkg.  &  T.  Co.  15:  402, 
106  S.  W.  843,  127  Ky.  800. 

13.  It  is  the  duty  of  an  elevator  operator 
who  knows  that  a  boy  is  riding  on  top  of 
the  car  to  use  ordinary  care  to  prevent  his 
injury,  even  if  the  latter  is  treated  as  a 
trespasser;  and  the  master  is  liable  for  the 
former's  failure  to  do  so,  although  at  the 
precise  moment  of  the  injury  the  operator 
may  not  actually  know  the  boy  is  in  dan- 
ger, where  he  can  ascertain  that  fact  by 
looking.  Davis  v.  Ohio  Valley  Bkg.  &  T.  Co. 
15:  402,  106  S.  W.  843,  127  Ky.  800. 

( Annotated ) 
Passenger  on  freight  elevator. 

14.  The  owner  of  a  building  is  not  liable 
for  injury  to  one  using  its  elevator  to  de- 
liver merchandise  therein,  by  its  fall  which 
was  caused  by  a  latent  defect  in  a  bolt  em- 
bedded in  a  beam,  which  had  been  put  in 
by  a  competent  workman  in  repairing  the 
elevator,  which  repairs  had  been  approved 
by  a  casualty  company  and  official  public 
inspectors.  Sack  v.  Ralston,  17:  104,  69 
Atl.   671,  220  Pa.  216.  (Annotated) 

15.  16.  A  passenger  upon  a  freight  as- 
sumes the  usual  hazards  due  to  that  mode 
of  conveyance,  but  not  those  arising  from 
the  negligence  of  the  owner.  Orcutt  v. 
Century  Bldg.  Co.  8:  929,  99  S.  W.  1062, 
201  Mo.  424. 

17.  The  owner  of  a  building  owes  to  one 
who,  by  custom  of  the  owner,  is  permitted 
to  accompany  freight  which  is  being  re- 
moved from  the  building  by  the  freight  ele- 
vator, the  duty  which  a  carrier  owes  his 
passenger.  Orcutt  v.  Century  Bldg.  Co. 
8:  929,  99  S.  W.  1062,  201  Mo.  424. 
Unguarded  isrells  or  shafts. 
Contributory  negligence  of  person  injured, 

see  infra,  24. 

Opinion  evidence  as  to  safety  of,  see  Evi- 
dence,  1148. 

Variance  between  pleading  and  proof  in 
action  for  injury,  see  Evidence,  2494. 

Elevator  shaft  as  dangerous  attraction  for 
children,  see  Negligence,   177. 

Question  for  jury  as  to  contributory  negli- 
gence of  person  injured,  see  Trial, 
587,  588. 

18.  One  who,  at  another's  invitation,  goes 
upon  his  property  to  do  business,  and,  while 
waiting  the  latter's  convenience,  attempts 
to  visit  the  water-closet,  under  his  permis- 
sion, has  the  rights  of  an  invitee,  and  may 
hold  the  owner  liable  for  injuries  due  to 
the  path  being  unsafe,  because  passing  near 
an  unguarded  and  unlighted  elevator  well. 
which  fact  was  known  to  the  owner,  but  not 
to  the  invitee.  Glaser  v.  Rothschild,  22: 
1045,  120  S.  W.  1,  221  Mo.  180. 

19.  Employees  only  are  entitled  to  the 
protection  of  a  section  of  a  statute  requir- 
ing guards  around  elevator  wells  in  every 
manufacturing,  mechanical,  mercantile,  or 
public  building  in  the  state,  where  its  title 
indicates  that  it  relates  to  the  health  and 
safety  of  employees,  and  all  sections  except 
two,  wherein  the  parties  are  mentioned  for 


1002 


ELEVATOR  SHAFT— EMBANKMENT. 


whose  protection  the  act  is  intended,  refer 
in  express  terras  to  employees,  and  those 
two  are  silent  as  to  whom  reference  is  made. 
Glaser  v.  Rothschild,  22:  1045,  120  S.  W.  1, 
221  Mo.  180. 

20.  A  police  officer  who  accompanies  an 
express  wagon,  to  protect  it  from  strikers, 
to  a  building,  and  who,  upon  its  backing  up 
to  the  elevator  opening  to  receive  its  load, 
steps  into  the  opening  either  to  get  out  of 
the  way  of  those  loading  the  goods,  or  to 
protect  the  employees  of  the  express  com- 
pany in  taking  possession  of  them,  is  either 
a  trespasser  or  a  licensee,  to  whom  the  own- 
er of  *he  building  owes  no  duty  except  to 
refrain  from  wilfully  or  wantonly  injuring 
him;  and  he  is  therefore  not  liable  for  the 
officer's  death  by  falling  down  the  shaft,  al- 
though the  opening  is  un lighted  and  un- 
guarded, and  the  elevator  not  at  the  open- 
ing. Casey  v.  Adams,  17:  776,  84  N.  E.  933, 
234  111.  360. 

21.  An  invitation  to  enter  a  warehouse  to 
to  take  goods  away  is  broad  enough  to  in- 
clude the  use  of  an  open  passageway  in  the 
building  into  which  one  so  invited  will  nec- 
essarily have  to  go  to  get  the  goods;  and 
the  warehouseman  will  be  liable  in  case  he 
falls  into  an  unguarded  elevator  well  in  the 
passageway,  although  there  is  a  way  around 
it,  if  it  is  not  known  to  him,  and  there  is 
not  light  enough  for  him  to  see  the  situa- 
tion; and  it  is  immaterial  that  at  the  mo- 
ment of  the  injury  he  is  not  engaged  in  the 
business  for  which  he  came.  Pauckner  v. 
Wakem,  14:  1118,  83  N.  E.  202,  231  111.  276. 

(Annotated) 
■  22.  The  owner  of  an  office  building  does 
not  owe  the  duty  of  keeping  closed  the 
doors  to  the  elevator  wells  to  one  who  goes 
into  the  building  seeking  information  about 
one  not  a  tenant  of  or  employed  in  it,  since 
he  is  a  mere  licensee.  Stanwood  v,  Clancey, 
26:  1213,  75  Atl.  293,  106  Me.  72. 

(Annotated) 

23.  A  hospital  may  be  found  to  be  neg- 
ligent in  maintaining  an  entrance  to  an 
elevator  from  outside  the  building,  which 
resembles  an  ordinary  doorway  and  is  pro- 
tected only  by  unfastened  screen  doors,  so 
as  to  render  it  liable  to  one  who,  mistaking 
the  entrance  for  an  ordinary  one,  steps  in- 
side and  falls  down  the  shaft.  Hospital 
of  St.  Vincent  of  Paul  v.  Thompson, 
51:  1025,  81  S.  E.  13,  116  Va.  101. 
Contributory  negligence. 
Centributory   negligence   of   infant   injured 

by  elevator  in  sidewalk,  see  Highways, 
345. 

Contributory  negligence  of  employee,  see 
MASTEat  AND  Servant,  646,  647. 

Liability  of  master  employing  minor  to 
operate,  in  violation  of  statute,  see 
Master  and  Servant,  646,  647. 

Of  child  riding  on  top  of  elevator,  see  Neg- 
ligence, 224. 

Contributory  negligence  of  servant  in  oiling 
motor,  see  Trial,  499. 

Question  for  jury  as  to,  see  Trial,  58G-588. 

Correctness  of  instructions  as  to,  see  Trial, 
I  1061. 

24.  One  was  guilty  of  negligence  a^  mat- 
Digest  1-52  I<.R.A.(N.S.) 


ter  of  law  who  stepped  into  a  well-lighted, 
unguarded  elevator  well,  under  the  mistaken 
belief  that  the  opening  was  the  entrance  to 
an  office,  where  the  merest  attentive  glance 
would  have  disclosed  the  truth.  Stanwood 
v.  Clancey,  26:  1213,  75  Atl.  293,  106  Me. 
72. 


ELEVATOR    SHAFT. 

Liability    for    injury    in    unguarded    shaft, 
see  Elevators,  18-24, 


ELIGIBILITY. 


To  become  naturalized,  see  Aliens,  1,  2. 
Of  officer,  see  Officbjjs,  I.  a,  2. 
For  appointment  as  receiver,  see  Receivebs, 
5. 


ELKINS  ACT. 


Violation  of,  by  carriers,  see  Carriers, 
1072-1075. 

Indictment  for  conspiracy  to  violate,  see 
Indictment,  etc.,  44,  57,  80,  81;  Mo- 
nopoly AND  Combinations,  73;  Crimi- 
nal   Law,    11;    Evidence,    843,    1890. 

See  also  Courts,  34. 


ELOPEMENT. 


Assisting  in,  as  justification  for  whipping, 
see  Assault  and  Battery,  27. 

Set-off  in  action  for  assault  by  one  assist- 
ing in,  see  Set-Off  and  Counterclaim, 
16. 


EMANCIPATION. 


Of   minor    children   generally,    see   Parent 

AND  Child,  15-17. 
Of  minor,  by  marriage,  see  Husband  and 

Wife,  1. 


EMBALMING. 


Requiring  undertakers  to  have  knowledge 
of,  see  Constitutional  Law,  117,  716, 
716. 


EMBANKMENT. 


Against  water,  see  Estoppel,  253;  Injunc- 
tion, 239;  Waters,  181,  201,  202. 

Diversion  or  obstruction  of  water  by,  see 
Railroads,  II.  f. 

Duty  of  town  to  guard,  see  Highways,  226. 


EMBEZZLEMENT. 


1003 


Lack  of  barriers  along,  see  Highways,  230- 
239. 

Duty  to  furnish  lateral  support  for,  see 
Lateral  Sxjppobt,  1. 

When  limitations  begin  to  run  against  ac- 
tion for  injuries  resulting  from,  see 
Limitation  of  Actions,  199. 

Liability  of  municipality  for  injury  to 
property  by  erection  of,  see  Municipal 

COBPOEATIONS,  324. 


EMBEZZLEMENT. 

Error  in  instructions,  see  Appeal  and  Er- 
ror, 1328;  Trial,  885. 

Swearing  jury  in  advance  of  arraignment 
and  plea  of  accused,  see  Appeal  and 
Eeeob,  1502. 

Recovery  from  broker  of  money  received  in 
good  faith  from  bank  teller  who  has 
embezzled  it,  see  Assumpsit,  19. 

Liability  of  carrier  for  embezzlement  of 
article  during  transportation,  see  Car- 
riers, 803,  941. 

Validity  of  contract  for  detection  of,  see 
Contracts,  459. 

Cancelation  of  deed  executed  to  avoid  prose- 
cution for,  see  Contracts,  770. 

From  two  corporations  by  officer  common 
to  both,  see  Corporations,  158. 

Former  jeopardy,  see  Criminal  Law,  217. 

Punishment  for,  see  Criminal  Law,  249. 

Threat  of  prosecution  for,  as  duress,  see 
Duress,  8,  9,  12-16. 

Estoppel  of  one  to  deny  authority  to  col- 
lect money  which  he  is  accused  of  em- 
bezzling, see  Estoppel,  209. 

Presumption  of  fraudulent  intent  in,  see 
Evidence,  256. 

Evidence  in  prosecution  for,  see  Evidence, 
808,  1432,  1898. 

Indictment  for,  see  Indictment,  etc.,  51,  52, 
95-98. 

Charge  of,  as  libel,  see  Libel  and  Slander, 
32. 

By  trustee,  liability  of  estate  for,  see 
Trusts,  139-142. 

Cross-examination  of  accused,  see  Wit- 
nesses, 120. 

1.  Under  a  statute  which,  in  defining 
what  is  the  subject  of  embezzlement,  al- 
though it  does  not  specifically  mention  a 
check,  contains  the  general  words  "security 
for  money"  and  "any  effects  or  j/roperty  of 
any  other  person,"  a  check  on  a  bank  is  the 
subject  of  embezzlement.  State  v.  Fraley, 
42:  498,  76  S.  E.  134,  71  W.  Va.  100. 

( Annotated ) 

2.  Partnership  funds  cannot  be  em- 
bezzled by  a  member  of  the  partnership, 
unless  expressly  so  provided  by  statute. 
State  v.  Hogg,  29:  830,  53  So.  225,  126 
La.    1053. 

3.  One  cannot  avoid  liability  for  em- 
bezzling money  from  a  foreign  corporation 
by  the  fact  that  it  was  not  authorized  to 
transact  in  the  state  the  business  in  which 
Digest   1-52  L.R.A.(N.S.) 


the  embezzlement  occurred.     State  v.  Blake- 
more,  27:  415,  126  S.  W.  429,  226  Mo.  560. 

(Annotated) 

4.  Evidence  that  a  laundress,  upon  dis- 
covering in  a  clothes  basket  committed  to  her 
a  bag  of  money  belonging  to  her  employer, 
accidently  placed  therein,  recognized  her 
duty  to  return  the  bag  to  its  own^r,  but  siib- 
sequently,  and  before  so  returning  it,  fraud- 
ulently converted  the  money,  will  support  a 
conviction  of  embezzlement  under  Gen.  Stat. 
1906,  §  3311,  providing  that,  if  any  servant 
embezzles  or  fraudulently  converts  to  his 
own  use  anything  of  value  which  has  been 
intrusted  to  him,  or  which  has  come  into  his 
possession,  care,  custody,  or  control  by  rea- 
son of  his  employment,  he  shall  be  punished 
as  if  he  had  been  convicted  of  larceny.  Neal 
V.  State,  19:  371,  46  So.  845,  55  Fla.  140. 

(Annotated) 

5.  A  cashier  may  be  convicted  of  lar- 
ceny by  embezzlement,  who  has  taken  money 
from  the  employer's  cash  drawer  for  hia 
own  use  without  the  employer's  knowledge, 
which  the  employer  claims  was  never  re- 
turned, but  which  he  himself  claims  to  have 
been  secured  by  a  note  which  he  kept  in  his 
own  possession,  which  was  destroyed  when 
the  money  was  returned.  State  v.  Downer, 
43:  774,  123  Pac.  1073,  68  Wash.  672. 

Intent  or  offer  to  retnm. 
See  also  infra,  12. 

6.  Under  a  statute  providing  that  the 
fact  that  one  accused  of  embezzlement  in- 
tended to  restore  the  property  embezzled 
is  no  ground  of  defense  if  it  has  not  been 
restored  before  information,  the  fact  that 
an  agent  accused  of  embezzlement  never 
concealed  the  taking  or  converting  of  the 
money  received,  and  promised  to  return 
it,  and  after  being  arrested  tendered  the 
full  amount  claimed,  does  not  make  the  act 
lawful  or  any  less  embezzlement  under  the 
statute.  State  v.  Duerksen,  52:  1013,  129 
Pac.   881,  8   Okla.   Crim.   Rep.   601. 

( Annotated  > 
By  kusband. 

7.  A  husband  may  embezzle  the  sepa- 
rate funds  of  his  wife,  under  a  statute  pro- 
viding that  any  servant,,  clerk,  agent,  man- 
datary, depositary,  bailee,  etc.,  who  shall 
wrongfully  use,  dispose  of,  or  conceal  any 
property  which  he  shall  receive  for  an- 
other, or  which  shall  have  been  intrusted 
to  his  care  or  possession  by  another,  shall 
be  guilty  of  embezzlement.  State  v.  Hogg, 
29:  830,^53  So.  225,  126  La.  1053. 

(Annotated) 

8.  In  a  jurisdiction  where  one  cannot 
be  both  the  husband  and  a  partner  in  busi- 
ness of  the  same  woman,  one  accused  of 
embezzlement  cannot  defend  on  the  ground 
that  he  is  both  the  partner  in  business  and 
the  husband  of  the  prosecutrix,  since  such 
defenses  are  conflicting.  State  v.  Hogg, 
29:  830,  53  So.  225,  126  La.  1053. 

By  agent. 

Intent  to  return  as  defense,  see  supra,  6. 

Sufficiency  of  proof  of  agency  of  one  charged 

with  embezzlement,  see  Evidencje,  2390, 

2391. 


1004 


EMBLEMENTS— EMERY  WHEEL. 


Arrest  of  agent,   see   Malicious   Peosecu- 

TION,  6. 

9.  Although  a  check  may  have  been  vol- 
untarily turned  over  to  the  defendant  by  his 
principal,  for  collection,  he  is  guilty  of  em- 
bezzling it  if,  in  obtaining  possession  there- 
of and  before  collecting  it,  he  used  fraud 
or  deception  in  getting  it,  and  had  con- 
ceived the  guilty  intention  of  misappropria- 
ting it  or  the  proceeds  thereof,  and  actually 
did  so.  State  v.  Fraley,  42:  498,  7(3  S.  E. 
134,  71  W.  Va.  100. 

10.  The  fact  that  an  agent  is  entitled  to 
retain  as  his  compensation  a  certain  per- 
centage of  a  fund  collected  for  his  principal 
does  not,  in  case  he  refuses  to  pay  over  any 
of  the  fund,  J)ut  uses  it  all  for  his  own 
benefit,  take  the  act  out  of  the  operation  of 
a  statute  providing  punishment  for  an  agent 
who  shall  convert  to  his  own  use  money  of 
his  principal  which  has  come  into  his  pos- 
session. Com.  V.  Jacobs,  13:  511,  104  S.  W. 
345,   126  Ky.  536.  (Annotated) 

11.  Money  delivered  by  an  agent  who 
sells  an  article  from  a  stock  in  charge  of 
another  agent,  to  the  latter  to  be  carried  to 
the  principal,  comes  into  his  possession  by 
virtue  of  his  agency  or  employment,  within 
the  meaning  of  a  statute  providing  for  the 
punishment  of  one  who  shall  fraudulently 
misappropriate  or  convert  to  his  own  use 
money  so  obtained,  although  the  cont»acts 
of  the  agents  require  each  to  report  to  the 
principal  on  his  own  account.  Smith  v. 
State,  17:  531,  109  S.  W.  118,  53  Tex.  Crim. 
Rep.  117.  (Annotated) 
By  public  officer.  | 
Of  tax  money,  see  Action  or  Suit,  84;  In-' 

TEREST,  8;  Taxes,  260. 

12.  The  fact  that  a  public  officer,  at  the 
time  of  the  conversion  of  public  funds  to 
his  own  use,  intended  to  replace  them,  is 
no  defense  to  a  prosecution  for  embezzle- 
ment. State  V.  Baxter,  52:  1019,  104  N.  E. 
331,  89  Ohio  St.  209. 

13.  A  state  superintendent  of  banks  who 
takes  funds  that  come  into  his  custody  by 
virtue  of  his  office,  and  uses  them  to  redeem 
collateral  securities  which  he  has  pledged 
for  his  private  debt,  is  guilty  of  embezzle- 
ment, under  a  statute  providing  that  who- 
ever, being  elected  or  appointed  to  an  office 
of  public  trust  or  profit,  embezzles  or  con- 
verts to  his  own  use  anything  of  value  that 
shall  come  into  his  possession  by  virtue 
of  such  office  or  employment,  notwithstand- 
ing he  subsequently,  before  he  is  called  to 
account  for  the  money  and  before  he  is  in- 
dicted for  its  unlawful  conversion,  nego- 
tiates the  securities  which  he  has  thus  ob- 
tained and  restores  the  fund.  State  v. 
Baxter,  52:  1019,  104  N.  E.  331,  89  Ohio 
St.  269.  (Annotated) 

14.  A  police  officer  assigned  to  the  posi- 
tion of  jailer  cannot  be  convicted  under  a 
statute  providing  that  if  an  officer  shall 
convert  to  his  own  use  money  belonging  to 
the  county  that  may  come  into  his  custody 
by  virtue  of  his  office,  he  shall  be  punished, 
where  he  appropriati  to  his  own  use  money 
collected  from  prisoners  as  fines,  if  the  stat- 
ute imposes  the  duty  of  collecting  such  fines 
Digest  1-52  L.R.A.(X.S.) 


upon  another  officer.  Hartnett  v.  State, 
23:  761,  119  S.  W.  855,  56  Tex.  Crim.  Rep. 
281. 


See  Crops. 


EMBLEMENTS. 


EMBLEMS. 


Protecting  emblems  of  secret  societies,  see 

Associations,  1,  7. 
Of  secret  society,  validity  of  statute  as  to, 

see  Constitutional  Law,  639. 


EMERGENCY. 


Issue  of  bonds  by  state  in  case  of,  see 
Bonds,  110. 

Effect  of,  on  time  for  taking  effect  of  stat- 
ute, see  Statutes^  13. 

Liability  for  acts  in,  see  Negligence,  29. 

Contributory  negligence  in  acting  in,  see 
Masteb  and  Servant,  089-692;  Nhxjli- 
OENCE,  211-213;  Railroads,  214-216, 
239-244. 

Service  of  surgeon  in  compensation  for,  see 
Physicians  and  Surgeons,  35. 

■lO')   <>,)    /_.iiTtii! ja-; 


EMERGENCY  FUND. 

Creation  of,  by  mutual  insurance  company, 
see  Insurance,  431,  432. 


!V".A.ari  ax.        1 1..  ■•  -  .'  >■  I  "tt  .10   • 
EMERGENCY  TAX. 

Necessity  of  unanimous  vote  to  pass,  see 
MuTficiPAL  Corporations,  56. 

Power  of  municipality  to  levy,  see  Munici- 
pal Corporations,  491. 

See  also  Courts,  149. 

EMERY  WHEEL. 

Regulating  employment  of  persons  to  oper- 
ate, see  Constitutional  Law,  299. 

Opinion  evidence  as  to  liability  of,  to  burst, 
see  Evidence,  1157. 

Liability  for  injury  to  servant  by  explosion 
of,  see  Master  and  Servant,  232,  301- 
303. 

Master's  duty  to  guard,  see  Master  and 
Servant,  359,  360. 

Injury  to  employee  by  fellow  servant's  neg- 
ligence as  to,  see  Master  and  Servant, 
800.  ,-,.... 


EMINENT  DOMAIN,  I.  a. 


1005 


EMINENT  DOMAIN. 

I.  Right  to  take  property,  1—120. 

a.  In   general,    1. 

b.  Who  may   exercise,   2—17. 

c.  What  may  be  taken,   18—42. 

1.  In  general,    18—29. 

2.  Railroad     property,      30— 

42. 

d.  For  tchat  purpose,   43—111. 

1.  In  general,   43—83. 

2.  Railroads,    84—102. 

3.  As     to    water    and    water 

rights,    103—111. 

e.  Right  acquired,    112—120. 
II.  Procedtire,    121—178. 

a.  In  general,   121—151. 

b.  Petition,    152—158. 

c.  Trial;    judgmertt,    159—171. 

1.  In  general,   159—161. 
•"!  2.  Jury   and   verdict;    award 

of    commissioners,    1 62— 
171. 
>  d.  Appeal;  costs;  new  trial,  172— 

178. 
III.  Rights    and    remedies    of    owners, 
179-286. 

a.  In  general,  179. 

b.  What  constitutes  a  taking  of, 

or    injury     to,     property, 
180—208. 
1.  In  general,   180—188. 
"  2.  As    to    streets    and    high- 

ways,  189—201. 

3.  As     to    water    and    water 

rights;       sewage,       202— 
206. 

4.  Crossing     railroad,      207, 

208. 

c.  Right   to   compensation,   209— 

251. 

1.  Necessity  of  making  com- 

pensation,   209—245. 

2.  To     whom     the     compen- 

sation    must     be     paid, 
246-251. 

d.  Payment    or    security;    taking 

possession  of  property,  252— 
256. 

e.  Consequential    injuries,    257— 

286. 

1.  In  general,   257—260. 

2.  By  construction  and  oper- 

ation   of    railroad,    261— 
268. 

3.  As     to     water     or     water 

rights;  sewage,  269. 

4.  As  to  streets  or  highways, 

270-286. 
IT.  Additional  servitude,  287-^10. 

a.  In  general;  on  railroad  way. 

b.  On  highway,  287— 310. 

1.  In  general,  287—300. 

2.  Railways  of  various  kinds, 

301-310. 

Effect  of  long-continued  possession  follow- 
ing institution  of  ad  quod  damnum 
proceedings,  see  Adverse  Possession, 
8. 

Adverse  possession  after  condemnation,  see 
Adverse  Possession,  83. 

Digest  1-52  L.R.A.(N.S.) 


Effect  of  ordinance  providing  for  condemna- 
tion of  land  for  alley  erroneously 
thought  not  to  exist,  see  Alleys,  1. 

Due  process  of  law  as  to,  see  Constitu- 
tional Law,  II.  b,  2,  b. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  177. 

Power  of  president  of  corporation  to  pro- 
ceed with  condemnation  proceedings, 
without  approval  of  board  of  directors, 
see  Corporations,  139. 

Costs  in  condemnation  proceedings,  see 
Costs  and  Fees,  6,  23. 

Jurisdiction  of  condemnation  proceedings, 
see  Courts,  208. 

Pending  condemnation  proceedings  as  breach 
of  covenant  against  encumbrances,  see 
Covenants  and  Conditions,  67. 

Reversion  of  property  deeded  to  religious 
society  upon  condemnation  of  land  for 
public  use,  see  Deeds,  91. 

Estoppel  of  one  taking  title  by,  to  deny 
validity  of  tax  liens  on  property,  see 
Estoppel,  19. 

Evidence  in  proceeding  to  condemn  and  re- 
move dam,  see  Evidence,  751. 

Evidence  of  purpose  of  widening  street,  see 
Evidence,  1609. 

Evidence  as  to  extent  of  recovery,  see  Evi- 
dence, 1746-1749. 

Injunction  against,  see  Injunction,  295, 
296. 

Limitation  of  action  by  heirs  to  compel  ap- 
propriation of  land,  see  Limitation  of 
Actions,  186. 

Mandamus  to  put  into  possession  one  secur- 
ing decree  of  condemnation,  see  Man- 
damus, 19. 

Pleading  in  eminent  domain  proceedings, 
see  Pleading,  96. 

City's  lien  for  public  improvements  on  prop- 
erty condemned  for  other  purposes,  see 
Public  Improvements,  60,  73. 

Supervision  and  control  of  corporations  au- 
thorized to  exercise,  see  Public  Service 
Corporations,  8. 

Partial  invalidity  of  statutes  providing  for 
condemnation  of  property,  see  Stat- 
utes, 62. 

Title  of  eminent  domain  act,  see  Statutes, 
92,  121. 

Eminent    domain    act    as    local    or    special 

legislation,  see  Statutes,  169. 
Repeal  of  municipal  charter  granting  right 
of  eminent  domain,  see  Statutes,  351. 

I.  Right  to  take  property. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  Where  the  right  to  exercise  the 
power  of  eminent  domain  has  been  con- 
ferred only  on  corporations,  a  corporation 
has  no  power  to  exercise  the  right  to  secure 
property  to  be  conveyed  to  an  individual 
although  he  intends  to  use  it  for  a  public 
purpose.  State  ex  rel.  Springfield  Invest. 
Co.  v.  Superior  Ct.  51:  987,  139  Pac.  601,  78 
Wash.  679. 


1006 


EMINENT  DOMAIN,  I.  b. 


h.  Who  may  exercise. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Review  of  proceedings  on  certiorari,  sec 
Cebtioraei,  9,  19. 

Delegation  to  municipality  of  power  to  ex- 
ercise, see  Constitutional  Law,   109. 

Statute  authorizing  majority  stockholders 
to  condemn  interests  of  dissenting  mi- 
nority, see  Constitutional  Law,  788. 

See  also  infra,  147. 

2.  The  power  of  eminent  domain  can  be 
exercised  by  a  private  individual  or  corpo- 
ration only  by  express  legislative  authority. 
Minnesota  Canal  &  Power  Co.  v.  Koochich- 
ing Co.  5:  638,  107  N.  W.  405,  97  Minn.  429. 

3.  In  proceedings  to  condemn  private 
property,  every  reasonable  doubt  as  to  the 
legislative  authority  of  the  petitioner  to 
take  property  by  condemnation  must  be  re- 
solved in  favor  of  the  landowner.  Minnesota 
Canal  &  Power  Co.  v.  Koochiching  Co. 
5:  638,  107  N.  W.  405,  97  Minn.  429. 

4.  Actual  exercise  of  the  power  reserved 
by  the  state  to  regulate  and  control  public- 
service  corporations  organized  to  furnish 
water,  light,  heat,  and  power  for  public  use 
is  not  a  condition  precedent  to  the  right  of 
such  corporations  to  exercise  the  power  of 
eminent  domain  conferred  upon  them. 
Minnesota  Canal  &  P.  Co.  v.  Pratt,  11:  105, 
112  N.  W.  395.  101  Minn.  197. 

5.  A  public-service  corporation  author- 
ized to  furnish  water,  light,  heat,  and  power 
for  public  and  private  use  is  entitled  to 
exercise  the  right  of  eminent  domain,  al- 
though it  has  not  obtained  a  franchise  from 
a  municipality,  or  a  contract  to  furnish  a 
city  or  village  with  its  products.  Minnesota 
Canal  &  P.  Co.  v.  Pratt,  11:  105,  112  .\.  W. 
395,  101  Minn,  197. 

Private  corporation. 
See  also  supra,  1,  2. 

6.  A  corporation  having  a  de  facto  ex- 
istence may  exercise  the  right  of  eminent 
domain.  Sisters  of  Charity  v.  Morris  R.  Co. 
50:  236,  86   Atl.  954,  84  N.  J.  L.  310. 

(Annotated) 

7.  The  right  of  a  corporation  to  exercise 
the  power  of  eminent  domain  cannot  be  de- 
feated by  one  whose  property  is  sought,  on 
the  ground  that  it  Is  not  duly  incorporated, 
since  it  may  proceed  as  a  de  facto  corpo- 
ration. Central  R.  Co.  v.  Union  Springs  & 
N.  R.  Co.  2:  144,  39  So.  473,  144  Ala.  639. 

(Annotated) 
i  ■  8.  The  legislature  may  confer  the  right 
01  eminent  domain  upon  a  tunnel  company 
organized  to  project  a  tunnel  to  drain,  ven- 
tilate, and  aid  in  securing  the  mineral 
from,  mines  along  its  course,  the  use  being 
public.  Tanner  v.  Treasury  Tunnel,  Min. 
&  Reduction  Co.  4:  106,  S3  Pac.  464,  35  Colo. 
693.  (Annotated) 

9.  Authority  to  condemn  property  for 
the  public  uses  recited  in  the  charter  of  a 
corporation  will  not  be  denied  because  a 
portion  of  the  enterprises  in  which  it  is  au- 
thorized to  engage  are  merely  private,  v/here 
Digest  1-52  I..R.A.(N.S.) 


the  two  are  not  so  combined  as  to  be  in- 
separable. State  ex  rol.  Harland  v.  Cen- 
tralia-Chehalis  Electric  R.  &  P.  Co.  7:  198, 
85    Pac.    .344,    42    Wash.    632. 

30.  Under  a  constitution  permitting  the 
taking  01  private  property  for  public  use, 
the  riglit  of  eminent  domain  cannot  he  con- 
ferred upon  a  woman's  college  conducted  by 
a  private  corporation  with  discretion  as  to 
the  admission  of  students,  although  it  is 
supported  in  part  by  a  voluntary  contribu- 
tion so  as  to  be  a  public  charity.  Connecti- 
cut College  for  Women  v.  Calvert,  48:  485, 
88  Atl.  633,  87  Conn.  421.  (Annotated) 

Foreign  corporation. 
Giving    domestic    pipe    line    companies    ex- 
clusive   right   of   eminent   domain,    see 
Commerce,  37. 

11.  The  legiflature  may  select  the  agen- 
cies through  which  it  will  exercise  the  right 
of  eminent  domain,  including  foreign  corpo- 
rations. Pittsburg  Hydro-Electric  Co.  v. 
Listen,  40:  602,  73  S.  E.  86,  70  W.  Va.  83. 

12.  A  statute  conferring  upon  foreign 
electric  power,  light,  heat,  and  traction  com- 
panies that  have  complied  with  the  condi- 
tions of  law  entitling  them  to  do  business 
in  this  state,  the  same  rights,  powers,  and 
privileges  that  are  conferred  upon  domestic 
corporations  created  for  the  same  purpose, 
confers  upon  such  foreign  corporations  equal 
rights  of  eminent  domain  as  is  conferred 
upon  domestic  corporations.  Pittsburg 
Hydro-Electric  Co.  v.  Liston,  40:  602,  73  S. 
E.  86,  70  W.  Va.  83. 

13.  A  statute  permitting  foreign  corpo- 
rations to  do  business  within  tlie  state  upon 
complying  with  certain  requirements  does 
not  confer  upon  them  the  power  of  :'mint'nt 
domain.  Spratt  v.  Helena  Power  Transmis- 
sion Co.  8:  567,  88  Pac.  773,  35  Mont.  108. 

14.  A  foreign  corporation  organized  to 
transport  natural  gas,  authorized  to  do  bus- 
iness in  a  state  and  thereby  acquiring  all 
the  rights  of  domestic  corporations  of  such 
state,  may  exercise  the  right  of  eminent 
domain  in  the  latter  state  for  the  purpose 
of  acquiring  land  upon  which  to  lay  a  pipe 
line,  although  but  few  people  in  the  latter 
state  are  served  by  the  corporation.  Car- 
negie Natural  Gas  Co.  v.  Swiger,  46:  1073, 
79  S.  E.  3,  72  W.  Va.  557.        (Annotated) 

15.  Provisions  in  a  statute  dealing  with 
the  organization  of  domestic  corporations, 
that  its  provisions  shall  be  applicable  to 
every  corporation,  and  that  a  corporation 
may  acquire  real  property  as  provided  by 
the  statute  relating  to  eminent  domain,  do 
not  apply  in  favor  of  foreign  corporations 
seeking  to  construct  a  dam  to  secure  water 
to  sell  for  irrigation  purposes,  and  to  gener- 
ate power  for  sale.  Spratt  v.  Helena  Power 
Transmission  Co.  8:  567,  88  Pac.  773,  35 
Mont.  108. 

Railroad  company. 

16.  That  a  commercial  steam  railroad 
for  the  common  carriage  of  freight  and  pas- 
sengers will  be  only  about  3  miles  in  length, 
and  will,  for  a  considerable  part  of  its 
course,  lie  within  the  corporate  limits  of  a 
city,  and  that  it  will  connect  with  other 
steam  railways  at  the  outer  terminus,  does 


EMINENT  DOMAIN,  I.  c,  1. 


1007 


not  prevent  it  from  falling  within  the  pur- 
view of  the  general  laws  of  Georgia  con- 
cerning the  incorporation  of  railroad  com- 
panies, so  as  to  be  entitled  to  exercise  the 
power  of  eminent  domain.  Bridwell  v.  Gate 
City  Terminal  Co.  lo:  909,  56  S.  E.  624, 
127  Ga.  520.  (Annotated) 

Street  rail\xray  company. 
See  also  infra,  19. 

17.  That  a  street  railway  conipanj'  had 
not  in  fact  secured  its  right  of  way  and 
necessary  franchises  will  not  prevent  an  ex- 
ercise by  it  of  the  power  of  eminent  domain 
to  secure  power  to  operate  the  road,  if  it  is 
proceeding  diligently  with  the  enterprise, 
a,nd  has  proceeded  far  enough  to  demon- 
strate that  its  immediate  purpose  is  to  ap- 
ply the  power  sought  to  a  public  use.  State 
ex  rel.  Harland  v.  Centralia-Chehalis  Elec- 
tric R.  &  P.  Co.  7:  198,  85  Pac.  344,  42  Wash.' 
€32.  (Annotated) 

c.  What  may  he  talcen, 

1.  In  genei'al. 

{See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

EflFect  of  controversy  as  to  title  on  right  to 
take  land  for  highway,  see  Injixsctioit, 
25. 

18.  The  stock  of  dissenting  stockholders 
in  a  railroad  company  may  be  taken  by  right 
of  eminent  domain  upon  payment  of  just 
compensation,  for  the  purpose  of  effecting 
a  consolidation  of  the  road  with  others  to 
create  a  through  line  and  subserve  the  in- 
terests of  the  public.  Spencer  v.  Seaboard 
Air  Line  R.  Co.  i:  604,  49  S.  E.  96,  137  N.  C. 
107.  (Annotated) 

19.  An  electric  railway  company  is  not, 
in  securing  property  necessary  for  power 
purposes,  limited  to  that  adjacent  to  its 
right  of  way,  under  a  statute  empowering 
it  to  appropriate  land  for  right  of  way  and 
"other  corporate  purposes"  without  limita- 
tion as  to  locality.  State  ex  rel.  Harland 
V.  Centralia-Chehalis  Electric  R.  &  P.  Co.  7: 
198,  85  Pac.  344,  42  Wash.  632. 

20.  A  municipal  corporation  may  be 
given  authority  to  take  for  a  public  water 
supply  such  property  outside  of  its  terri- 
torial limits  as  is  necessary  for  the  enter- 
prise. Board  of  Water  Comrs.  v.  Johnson, 
41:  1024,  84  Atl.  727,  86  Conn.  151. 

21.  A  corporation  organized  to  transmit 
electricity  for  power  and  liglit  purposes  may 
condemn  the  right  to  cut  trees  near  its  line 
when  it  becomes  necessary  for  protection 
of  the  line,  under  statutory  authority  to 
condemn  rights,  privileges,  and  easements, 
and  enter  on  contiguous  lands  along  the 
route,  for  protection  of  its  property.  Yad- 
kin River  Povvef  Co.  v.  Wissler,  43:  483,  76 
S.  E.  267,  160  N.  C.  269. 

Property    subject    to    public    use    gen- 
erally. 
Injunction  against,  see  Injuncxio.v.  290. 
Digest   1-52  Lr.R.A.(N.S.) 


22.  The  state  may,  for  a  public  purpose, 
under  the  right  of  eminent  domain,  condemn 
and  remove  a  dam,  the  right  to  maintain 
which  had  been  acquired,  under  ad  quod 
damnum  proceedings,  for  the  operation  of 
a  gristmill,  where  the  mill  is  no  longer 
operated  for  toll,  but  is  run  wholly  Jor 
private  use  or  benefit,  doing  a  large  com- 
mercial business  in  the  manufacture  and 
sale  of  flour.  Zehner  v.  Milner,  24:  383,  87 
N.  E.  209,  172  Ind.  443.  (Annotated) 

23.  General  and  unrestricted  language 
conferring  upon  a  municipal  corporation 
the  right  of  eminent  domain  does  not  in- 
clude the  right  to  take  property  already 
devoted  to  a  similar  public  use.  Board  of 
Water  Comrs.  v.  Johnson,  41:  1024,  84  Atl. 
727,  86  Conn.  151. 

24.  Charter  authority  to  widen  streets 
does  not  empower  a  municipal  corporation 
to  condemn  for  such  purpose  property  al- 
ready devoted  to  public  use,  such  as  a  pub- 
lic library.  Moline  v.  Greene,  37:  104,  96 
N.  E.  911,  252  111.  475. 

25.  A  citizen  and  taxpayer  of  a  city  for 
the  benefit  of  the  citizens  of  which  proper- 
ty is  held  in  trust  for  library  purposes  may 
file  objections  against  the  taking  of  a  por- 
tion of  the  library  property  for  the  purpose 
of  widening  a  street.  Moline  v.  Greene,  37: 
104,  96  N.  E.  911,  252  111.  475. 

26.  Authority  conferred  upon  a  munici- 
pality to  exercise  the  power  of  eminent  do- 
main to  take  private  property  for  the  pur- 
pose of  laying  out  streets  does  not  by  im- 
plication include  authority  to  condemn  land 
owned  by  the  county  and  used  for  a  poor 
farm.  Edwardsville  v.  Madison  County,  37: 
loi,  96  N.  E.  238,  251  111.  265. 

27.  A  corporation  which  engages  in  the 
business  of  generating  and  distributing 
electrical  energy  for  general  sale  for  public 
purposes  devotes  its  property  to  a  public 
purpose,  which  prevents  its  being  taken 
under  the  power  of  eminent  domain  for  an- 
other public  purpose,  in  the  absence  of  legis- 
lative grant,  express  or  implied.  Rutland 
R.  Light  &  P.  Co.  V.  Clarendon  Power  Co. 
44:  1204,  83  Atl.  332,  86  Vt.  45. 
Municipal  Tirater  plant. 

28.  The  construction  of  a  levee  for  the 
reclamation  of  land  from  the  flood  water 
of  a  river  will  not,  although  it  is  for  a  pub- 
lic use,  be  permitted  to  destroy  a  portion 
of  the  water  supply  system  of  a  municipal 
corporation.  Ft.  Worth  Improv.  Dist.  No. 
1  V.  Ft.  Worth,  48:  994,  158  S.  W.  164,  — 
Tex.  — . 

Riparian  rights. 

29.  The  rights  of  an  owner  of  riparian 
land,  such  as  access  to  the  navigable  por- 
tion of  the  stream,  light  and  air  and  other 
kindred  intangible  rights  appurtenant  to 
real  estate,  are  subject  to  condemnation  for 
public  use  without  an  appropriation  of  the 
land  itself.  State  ex  rel.  Burrows  v.  Su- 
]«>rior  Court,  17:  1005,  93  Pac.  423,  48 
Wash.  277.  (Annotated) 
Incorporeal  rights. 

See  supra,  29. 


1008 


EAIINENT  DOMAIN,  I.  c,  2. 


,-7,v..)  ,,i.^  vJI*  Railroad  property. 

(ti(f..'  ,,.,•(.■ 

fSee  also   same   heading   in  Digest  L.R.A. 
I~t0.) 

See  also  infra,  141. 

30.  Property  devoted  to  railroad  pur- 
poses is  included  in  the  terms  of  a  statute 
granting  a  corporation  organized  to  provide 
a  drainage  system  for  a  municipal  corpo- 
ration the  power  to  acquire  by  condemna- 
tion any  and  all  real  property  ^•hich  it  may 
require  for  its  corporate  purposes.  Pitts- 
burgh, Ft.  W.  &  C.  R.  Co.  V.  Sanitary  Dis- 
trict, a:  226,  75  N.  E.  892,  218  111.  286. 

(Annotated) 

31.  The  legislature  may  authorize  the 
taking  of  railroad  switch  yards  for  a 
public  park  under  the  power  of  eminent 
domain.  Southern  R.  Co.  v.  Memphis,  41: 
828,  148  S.  W.  662,  126  Tenn.  267. 

(Annotated) 

32.  A  railroad  company  whose  switch 
yards  are  taken  by  eminent  domain  for  a 
park  cannot  contest  the  taking,  because  the 
property  is  not  needed  or  other  property 
will  answer  as  well.  Southern  R.  Co.  v. 
Memphis,  41:  828,  148  S.  W.  662,  126  Tenn. 
267. 

For  other  railroad. 

Question  for  jury  as  tq  necessity  of  taking, 

see  Trial,  637. 
See  also  supra,  18;  infra,  91,  157. 

33.  The  filing  of  the  map  and  profile  of 
the  route  intended  to  be  adopted,  required 
on  the  part  of  a  railroad  company  before 
commencing  the  construction  of  a  part  of 
its  road  into  or  through  a  county,  consti- 
tutes such  an  inchoate  appropriation — at 
least  as  to  its  own  lands,  and  possibly  as 
to  other  lands — for  public  purposes,  as  to 
prevent  their  appropriation  by  another  rail- 
road company  by  condemnation  proceedings, 
in  the  absence  of  undue  delay  on  the  part 
of  the  former  company  ih  making  use  of  the 
property.  Southern  Indiana  R.  Co.  v.  In- 
dianapolis &  L.  R.  Co.  13:  197,  81  N.  E.  65, 
168  Ind.  360.  (Annotated) 

34.  That  deeds  of  land  to  a  railroad  com- 
pany state  the  width  of  the  purchase  on 
each  side  "of  the  center  line  of  [railroad 
company]  as  now  located  and  shown  on  at- 
tached plat"  does  not  amount  to  such  an 
appropriation  of  the  land  purchased  for 
right-of-way  purposes  as  to  prevent  its  con- 
demnation for  such  purposes  by  another 
railroad  company.  Southern  Indiana  R.  Co. 
V.  Indianapolis  &  L.  R.  Co.  13:  197,  81  N. 
E.  65,  168  Ind.  360. 

35.  A  railroad  company  to  which  no  spe- 
cific right  of  way  is  granted  by  its  articles 
of  incorporation  cannot,  simply  by  running 
its  preliminary  line  and  purchasing  as  an 
ordinary  purchaser  the  lands  over  which  its 
survey  has  been  extended,  so  impress  such 
lands  with  a  public  character  as  to  pre- 
empt them  as  against  another  railroad  com- 
pany which  has  done  what  is  necessary  un- 
der the.  statute  to  subject  the  property  to 
the  servitude  of  a  railroad.  So  to  pre-empt 
the  land,  there  must  be  some  step  taken 
Digest   1-52  L.R.A.(N.S.) 


which  amounts  to  a  legal  location  of  the 
railroad  company's  line.  Soutliern  Indiana 
R.  Co.  V.  Indianapolis  &  L.  R.  Co.  13:  197, 
81  X.  E.  65,  1G8  Ind.  360. 

36.  The  filing  by  a  railroad  company,  of 
a  map  and  profile  intended  to  sliow  the 
route  to  be  adopted,  but  which  exhibits  only 
a  single  line,  and  gives  no  idea  as  to  the 
width  of  the  right  of  way,  nor  as  to  whether 
such  line  is  the  median  line  of  its  proposed 
right  of  way  or  otherwise,  does  not  consti- 
tute such  an  appropriation,  for  right  of  way 
purposes,  of  land  owned  by  the  company, 
as  to  prevent  its  appropriation  by  another 
railroad  company  for  such  purposes.  South- 
ern Indiana  R.  Co.  v.  Indianapolis  &  L.  R. 
Co.  13:  197,  81  N.  E.  65,  168  Ind.  360. 

(Annotated) 
For  crossing  of  other  railroad. 
'Measure  of  damages  for,  see  Damages,  556. 

37.  A  proposed  spur  track  intended  for 
the  transfer  of  freight  in  carload  lots  to 
and  from  a  number  of  industrial  plants  in 
a  town  or  city  is  open  to  the  public;  and 
the  railroad  company  constructing  such  a 
track  has  the  rigl't  to  expropriate  necessary 
crossings  over  the  spur  tracks  of  another 
railroad  company.  Kansas  City,  S.  &  G. 
R.  Co.  v.  Louisiana  W.  R.  Co.  5:  512,  40  So. 
627,  116  La.  178.  (Annotated) 
For  street. 

Damages  for,  see  Damages,  565-570. 
Right  of  railroad  company  to  damages  for 

laying  out  of  highway  across  its  tracks, 

see  Railroads,  40. 

38.  Power  to  lay  out  street  across  rail- 
road tracks  is  conferred,  by  implication,  by 
general  authority  to  a  municipality  to  con- 
demn land  for  appropriate  municipal  pur- 
poses; and  it  is  not  necessary  that  such 
power  shall  be  conferred  in  terms.  Louis- 
ville &  N.  R.  Co.  V.  Louisville,  24:  1213,  114 
S.  W.  743,  131  Ky.  108.  (Annotated) 
For  telegraph  or  telephone  line. 

See  also  infra,  135,  143-145. 

39.  A  telegraph  company  may  condemn 
a  right  of  way  on  and  along  the  right  of 
way  of  a  railroad  company,  when  the  pro- 
posed line  of  telegraph  will  be  so  con- 
structed as  to  produce  no  material  inter- 
ference with  the  railroad  company's  free 
exercise  of  its  franchise  or  with  the  actual 
operation  of  the  railroad.  Western  &  A. 
R.  Co.  V.  Western  U.  Teleg.  Co.  42:  225,  75 
S.  E.  471,  138  Ga.  420.  (Annotated) 

40.  A  telegraph  company  may  not  con- 
demn a  railroad  company's  right  of  way  on 
both  sides  of  the  track,  at  least  without 
making  it  appear  that  it  is  necessary  to  oc- 
cupy both  sides  and  that  the  railroad  com- 
pa::y's  operation  of  its  trains  is  not  ma- 
terially interfered  with.  Western  &  A.  R. 
Co.  V.  Western  U.  Teleg.  Co.  42:  225,  75 
S.  E.  471,  138  Ga.  420. 

41.  A  telegraph  company  •will  not  be  per-' 
mitted  to  condemn  the  right  of  way  of  a 
railroad  company  for  the  construction  and 
maintenance  of  lines  of  telegraph  in  such 
a  manner  as  materially  to  interfere  with 
the  railroad  company  in  the  operation  of 
its  trains  and  in  the  transportation  of  pas- 
sengers and  goods,  and  a  telegraph  line  con- 


EMINENT  DOMAIN,  I.  d,  1. 


1009 


structed  and  maintained  so  as  not  to  inter- 
fere with  the  transportation  of  passengers 
and  goods  beyond  the  state  is  not  a  burden 
on  interstate  commerce.  Western  &  A.  R. 
Co.  V.  Western  U.  Teleg,  Co.  42:  225,  75  S. 
E.  471,  138  Ga.  420. 

42.  The  necessary  authority  to  condemn 
a  right  of  way  for  a  telephone  line  along  a 
railroad  right  of  way  is  conferred  by'  a 
statute  permitting  such  construction  upon 
or  along  a  railroad.  Canadian  P.  R.  Co. 
V.  Moosehead  Teleph.  Co.  29:  703,  76  Atl. 
886,  106  Me.  363. 

d.  For  what  purpose. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70J 

Review  of  legislative  decision  as  to,  see 
Courts,  I.  c,  2,  c. 

Conclusiveness  of  legislative  determination 
as  to  what  is  public  use,  see  Courts, 
121. 

Question  for  jury  as  to  public  need  or  bene- 
fit, see  Trial,  636. 

43.  A  use  is  not  public  unless,  under 
proper  regulations,  the  public  ^'as  the  right 
to  resort  to  the  property  for  the  use  for 
which  it  was  acquired,  independently  of 
the  will  or  caprice  of  the  corporation  in 
which  the  title  of  the  property  vests  upon 
condemnation.  Minnesota  Canal  &  Power 
Co.  V.  Koochiching  Co.  5:  638,  107  N.  W. 
405,  97  Minn.  429. 

44.  A  statute  granting  the  right  of  emi- 
nent domain  will  be  upheld  against  a  claim 
that  it  is  for  a  private  use,  unless  it  clearly 
appears  that  the  use  is  private  and  in  no 
sense  public.  Highland  Boy  Gold  Min.  Co.  v. 
Strickley,  i :  976,  78  Pac.  296,  28  Utah,  215. 

45.  A  charter  obtained  from  the  state 
for  the  purpose  of  constructing  and  operat- 
ing a  commercial  railway  as  a  common 
carrier  is  granted  for  a  public  purpose, 
and  cannot  be  used  for  a  purely  private 
purpose;  nor  can  the  company  so  chartered 
exercise  the  right  of  eminent  domain  for  a 
mere  private  purpose.  Bridwell  v.  Gate 
City  Terminal  Co.  10:  909,  56  S.  E.  624,  127 
Ga.  520. 

46.  The  mere  development  of  a  locality 
by  the  establishment  and  maintenance  of  a 
private  enterprise  therein  is  not  a  public  use 
for  which  the  right  of  eminent  domain  may 
be  exercised.  Cozad  v.  Kanawha  Hardwood 
Co.  i:  969,  51  S.  E.  932,  139  N.  C.  283. 

47.  The  term  "public  business"  used  in 
Minn.  Rev.  Laws  1905,  §  2841,  authorizing 
public-service  corporations  to  condemn  sucii 
private  property  as  may  be  necessary  or 
convenient  for  the  transaction  of  the  public 
business  for  which  they  have  been  formed, 
includes  the  construction  of  works  for  sup- 
plying the  public  with  water,  light,  heat, 
and  power.  JVfinnesota  Canal  &  P.  Co.  v. 
Pratt,  11:  105,  112  N.  W.  395,  101  Minn. 
197. 

48.  That  a  switch  connection  with  a  rail- 
Digest  1-52  L.R.A.(N.S.)  64 


road  would  enable  a  water  and  electric  light 
company  to  carry  on  its  business  more 
economically,  and  either  make  greater  prof- 
its or  serve  its  patrons  at  lower  rates, 
does  not  show  that  such  connection  is  nec- 
essary, so  as  to  authorize  an  exercise  of 
the  power  of  eminent  domain  under  statu- 
tory authority  to^  acquire  by  that  means 
such  rights  as  may  be  necessary  for  its 
business.  Kinney  v.  Citizens'  Water  & 
Light  Co.  26:  195,  90  N.  E.  129,  173  Ind. 
252. 

49.  The  fact  that  a  pipe  line  company 
organized  for  the  transportation  of  natural 
gas  must  serve  the  public  with  gas  under 
reasonable  and  proper  regulations  along  the 
entire  line  traversed,  and  for  reasonable 
rates,  shows  a  sufficient  public  use  to  author- 
ize the  exercise  of  the  power  of  eminent 
domain  by  such  a  company.  Carnegie  Nat- 
ural Gas  Co.  V.  Swiger,  46:  1073,  79  S.  E. 
3,  72  W.  Va.  557. 

50.  That  an  incorporated  company  seek- 
ing to  condemn  land  may  have  a  charter 
regular  on  its  face  to  build  a  railroad  is 
not  conclusive  as  to  the  question  of  the 
purpose  for  which  the  property  is  actually 
sought  to  be  taken.  Bridwell  v.  Gate  City 
Terminal  Co.  10:  909,  56  S.  E.  624,  127  Ga. 
520. 

51.  A  railroad  which  takes,  under  the 
right  of  eminent  domain,  for  the  purpose 
of  its  track  and  yards,  the  space  occupied 
by  a  private  way  which  is  necessary  to  per- 
mit the  owner  to  reach  a  highway  from 
his  home,  may,  in  order  to  afford  him  full 
compensation  for  the  taking,  condemn  a 
strip  of  land  belonging  to  a  stranger  as  a 
substitute  for  the  private  way.  Pitsnogle 
v.  Western  Maryland  R.  Co.  46:319,  87 
Atl.  917,  119  Md.  673.  (Annotated) 

52.  A  wholesale  grocery  business  con- 
ducted by  a  private  corporation  is  not,  al- 
though beneficial  to  the  public,  so  far  a 
public  use  that  a  railroad  company  may 
lease  for  such  business  land  condemned  by 
it  for  public  use,  in  which  it  owns  only  a 
qualified  fee.  Neitzel  v.  Spokane  Interna- 
tional R.  Co.  36:  522,  117  Pac.  864,  65  Wash. 
100. 

53.  The  legislature  cannot  authorize  a 
municipal  corporation  to  secure  by  the 
power  of  eminent  domain,  or  use  the 
public  funds  to  pay  for,  land  abutting  on  a 
public  street,  to  be  leased  to  merchants  for 
the  promotion  of  the  commercial  interests 
of  the  municipality.  Re  Opinion  of  Jus- 
tices, 27:  483,  91  N.  E.  405,  204  Mass.  607. 

54.  The  power  of  eminent  domain  cannot 
be  utilized  to  enable  a  municipal  corpora- 
tion to  acquire  property  outside  the  limits 
of  a  park  way  for  resale  with  restrictions 
for  the  protection  of  the  park  way  or  preser- 
vation of  the  view,  appearance,  light,  air, 
health,  or  usefulness  thereof.  Pennsylvania 
Mut.  L.  Ina.  Co.  v.  Philadelphia,  49:  1062, 
88  Atl.  904,  242  Pa.  47. 

55.  Power  to  condemn  land  for  a  high- 
way is  conferred  on  a  municipal  corporation 
by  a  statutory  provision  that,  whenever 
property  shall  be  needed  for  appropriate 
municipal    purposes,    the    board    of    public 


1010 


EMINENT  DOMAIN,  I.  d,  1. 


works  may,  with  the  consent  of  the  mayor 
and  general  council,  order  condemnation  of 
such  property.  Louisville  &  N.  R.  Co.  v. 
Ivouisville,  24:  1213,  114  S.  W.  743,  131  Ky. 
108. 

56.  The  levy  and  collection,  under  a 
state  statute,  from  every  bank  existing  un- 
der the  state  laws,  of  an  assessment  based 
upon  average  daily  deposits,  for  the  purpose 
of  creating  a  depositors'  guaranty  fund  to 
secure  the  full  repayment  of  deposits  in  case 
any  such  bank  becomes  insolvent,  is  for  a 
public  use,  although,  judged  from  the  proxi- 
mate effect  of  the  taking,  the  use  seems  to 
be  a  private  one.  Noble  State  Bank  v. 
Haskell,  32:  1062,  31  Sup.  Ct.  Rep.  186,  219 
U.  S.  104,  55  L.  ed.  112. 
Combination    of    public    and    private 

use. 
See  also  supra,  43-46;   infra,   106. 

57.  The  right  of  a  corporation  to  con- 
demn land  must  be  denied  when  the  pur- 
poses for  which  it  is  sought  to  be  taken  are 
partly  public  and  partly  private.  Minne- 
sota Canal  &  P.  Co.  v.  Koochiching  Co. 
5:  638,  107  N.  W.  405,  97  Minn.  429. 

58.  The  inclusion,  in  a  grant  of  power 
to  a  mimicipal  corporation  to  exercise  the 
right  of  eminent  domain,  of  the  right  to  se- 
cure the  property  for  the  purpose  of  sup- 
plying with  light  and  power  persons,  com- 
panies, or  corporations  other  than  the  in- 
habitants of  the  municipality,  renders  the 
entire  grant  invalid.  Miller  v.  Pulaski,  22: 
552,  63  S.  E,  880,  109  Va.  137. 

59.  That  a  corporation  seeking  by  right 
of  eminent  domain  property  necessary  to 
enable  it  to  generate  a  supply  of  electricity 
has  power  to  serve  a  private  use  will  not 
defeat  its  application  for  property  which 
it  proposes  and  proves  shall  be  used  ex- 
clusively for  public  service.  Walker  v. 
Shasta  Power  Co.  19:  725,  160  Fed.  856,  87 
C.  C.  A.  660.  (Annotated) 

60.  The  legislature  cannot,  by  declaring 
the  use  to  be  public,  authorize  an  individ- 
ual to  condemn  the  rights  of  a  riparian 
owner  for  the  purpose  of  securing  a  water 
power,  although  it  requires  him  to  sell  the 
surplus  over  and  above  his  own  needs  to 
the  public  at  reasonable  rates.  State  ex 
rel.  Wausau  Street  R.  Co.  v.  Bancroft,  38: 
526,  134  N.  W.  330,  148  Wis.  124. 

61.  A  river  improvement  company  is  not 
prevented  from  exercising  its  power  of  emi- 
nent domain  to  construct  a  dam  for  the  im- 
provement* of  navigation,  by  the  fact  that 
it  has  contracted  with  a  power  company 
to  construct  the  necessary  dam  at  its  own 
expense,  and  given  it  the  right  to  the  power 
which  will  result  therefrom,  although  the 
value  of  the  power  greatly  exceeds  the  tolls 
which  will  result  from  navigation  on  the 
stream,  and  it  would  not  have  entered  upon 
the  improvement  had  it  not  made  such  con- 
tract, if  the  dam  will  really  be  an  aid  to 
navigation,  and  it  will  not  be  impaired  by 
the  use  of  the  dam  for  generating  power. 
Wisconsin  River  Improv.  Co.  v.  Pier,  21: 
538,  118  N.  W.  857,  137   Wis.  325. 

(Annotated) 

62.  The  legislature  cannot  establish  a 
Digest   1-52  L,.R.A.(N.S.) 


commission  with  powers  of  eminent  domain 
to  acquire  and  manage  for  the  public  an 
ocean  beach  resort  occupied  witli  cottages, 
hotels,  stores,  and  places  of  amusement, 
with  authority  to  sell  or  lease  such  lands 
or  rights  in  lands  as  are  not  needed  by 
the  public.  Salisbury  Land  &  Improv.  Co. 
V.  Com.  46:  1196,  102  N.  E.  619,  215  Mass. 
371.  (Annotated) 

Private  roads. 
See  also  supra,  51. 

63.  A  mere  legislative  declaration  that 
a  right  of  way  allording  an  outlet  for  a 
private  business  shall  be  a  public  road  does 
not  change  its  character,  so  as  to  authorize 
an  exercise  of  the  power  of  eminent  domain 
to  secure  it.  Alfred  Phosphate  Co.  v.  Duck 
River  Phosphate  Co.  22:  701,  113  S.  W.  410, 
120  Tenn.  260. 

64.  The  development  of  phosphate  mines 
in  a  particular  portion  of  the  state,  which 
are  in  the  private  ownership  of  a  single 
corporation,  is  not  a  public  use,  to  acquire 
a  right  of  way  for  which  private  property 
may  be  condemned  under  the  power  of  emi- 
nent domain.  Alfred  Phosphate  Co.  v.  Duck 
River  Phosphate  Co.  22:  701,  113  S.  W.  410, 
120  Tenn.  260. 

65.  The  fact  that  a  right  of  way  sought 
by  a  mining  company  over  private  property 
to  transport  the  product  of  its  mines  to 
market  might  accommodate  a  limited  class, 
such  as  other  mining  companies  in  the  vi- 
cinity, does  not  clothe  it  with  the  character 
of  public  use,  for  which  the  right  of  emi- 
nent domain  may  be  exercised,  where  it  will 
not  be  subject  to  governmental  regulation 
or  control.  Alfred  Phosphate  Co.  v.  Duck 
River  Phosphate  Co.  22:  701,  113  S.  W.  410, 
120  Tenn.  260. 

66.  The  power  of  eminent  domain  may 
be  exercised  to  secure  a  right  of  way  for 
the  transportation  by  an  individual  of  stone 
from  his  quarry  to  a  railroad,  where  any 
other  person  desiring  to  use  the  way  has 
the  statutory  right  to  do  so  by  paying  rea- 
sonable compensation  therefor,  although 
few  may  have  occasion  to  avail  themselves 
of  the  privilege.  Chesapeake  Stone  Co.  v. 
Moreland,  16:479,  104  S.  W.  762,  126  Ky. 
656. 

Public  wills. 

67.  A  private  milling  corporation  merely 
engaged  in  the  manufacture  of  flour  and 
feed  for  sale  by  the  use  of  steair  power 
cannot  exercise  the  right  of  eminent  do- 
main under  a  statute  permitting  "all  pub- 
lic mills"  to  exercise  such  right,  since  the 
statute  was  intended  to  apply  only  to  mills 
operated  for  the  accommodation  of  the  pub- 
lic. Howard  Mills  Co.  v.  Schwartz  Lumber 
&  C.  Co.  18:  356,  95  Pac.  559,  77  Kan.  599. 

(Annotated) 

68.  Mills  used  merely  for  the  purpose  of 
manufacturing  flour  and  feed  for  sale  are 
not  made  "public  mills"  by  an  act  declaring 
that  all  water,  steam,  wind,  or  other  mills 
whose  owners  or  occupiers  grind  or  offer 
to  grind  grain  for  toll  or  ^ay  are  public 
mills.  Howard  Mills  Co.  v.  Schwartz  Lum- 
ber &  C.  Co.  18:  356,  95  Pac.  559,  77  Kaa. 
599. 


EMINENT  DOMAIN,  I.  d,  1. 


1011 


69.  A  private  corporation  owning  a  mill 
operated  by  steam  power,  for  the  manufac- 
ture and  sale  of  flour  and  feed,  cannot  ex- 
ercise the  right  of  eminent  domain  for  the 
purpose  of  improving  and  enlarging  such 
business.  Howard  Mills  Co.  v.  Schwartz 
Lumber  &  C.  Co.  i8:  356,  95  Pac.  559,  77 
Kan.   599. 

70.  The  operation  of  a  gristmill  under 
the  toll  system  is  a  public  use  in  aid  of 
which  tlio  legislature  may  authorize  an  exer- 
cise of  the  power  of  eminent  domain. 
Sexauer  v.  Star  Milling  Co.  26:  609,  90  N. 
E.  474,  173  Ind.  342, 

xiiectric  companies;  generation  and 
distribution  of  electricity. 

Right  to  condemn  electric  plant  for  other 
purpose,  see  supra,  27. 

Review  of  legislative  decision  as  to  grant- 
ing power  of  eminent  domain  to  elec- 
trical company,  see  Courts,  120,  124. 

See  also  supra  4,  5,  12,  21,  47,  48,  59; 
infra,  103,  104,  153, 

71.  The  legislature  may  authorize  the 
taking  of  private  property,  upon  making 
provision  for  just  compensation  therefor,  by 
electric  power,  heat,  light,  and  traction  com- 
panies, when  their  purpose  is  to  serve  the 
public.  Pittsburg  Hydro-Electric  Co.  v. 
Listen,  40:  602,  73  S.  E.  86,  70  W.  Va.  83. 

72.  A  provision  in  a  statute  granting 
electric  light,  heat,  and  power  companies 
the  right  of  eminent  •  domain,  when  for  a 
public  use,  requiring  such  companies  to  fur- 
nish service  to  persons  along  and  near  its 
lines  when  it  occupies  a  public  highway, 
and  classifying  the  service,  giving  mu- 
nicipal, manufacturing,  and  transportation 
companies  preference,  does  not  invalidate 
the  statute.  Pittsburg  Hydro-Electric  Co. 
V.  Listen,  40:  602,  73  S.  E.  86,  70  W.  Va. 
83, 

73.  A  provision  in  a  statute  granting 
electric  power,  heat,  light,  and  traction 
companies  the  right  of  eminent  domain, 
when  for  a  public  use,  permitting  them  to 
erect  their  poles  and  stretch  their  wires 
along  public  roads,  by  and  with  the  consent 
of  the  county  court,  and  if  in  a  city,  town, 
or  village,  by  and  with  the  consent  of  the 
authorities  thereof,  does  not  invalidate  the 
act.  Pittsburg  Hydro-Electric  Co.  v.  Lis- 
ten, 40:  602,  73  S.  E.  86,  70  W.  Va.  83. 

74.  The  generation  of  electricity  by 
water  power  for  distribution  and  sale  to  the 
general  public  on  equal  terms,  subject  to 
governmental  control,  is  a  public  enterprise; 
and  property  so  used  is  devoted  to  public 
use.  Minnesota  Canal  &  Power  Co.  v. 
Koochiching  Co.  5:  638,  107  N.  W.  405,  97 
Minn.  429. 

75.  The  selling  of  electric  power  to  the 
public  geiT'  vlly  is  not  a  public  use  for  which 
the  power  of  eminent  dor.ain  may  be  ex- 
ercised. State  ex  rel.  Harris  v.  Superior 
Court,  5:  672,  85  Pac.  666,  42  Wash.  660. 

76.  A  statute  authorizing  a  corporation 
engaged  in  the  business  of  generating  and 
transmitting  electricity  to  exercise  the  right 
of  eminent  domain  does  not  permit  such 
right  to  be  exercised  for  other  than  a  pub- 
lic purpose,  in  violation  of  that  clause  of 
Digest   1-52  L.R.A.(N.S.) 


the  Constitution  which  prohibits  the  taking 
of  property  without  dhe  process  of  law, 
where  the  electricity  is  to  be  used  to  light 
towns  and  cities,  to  furnish  power  to  rail- 
roads and  street-car  lines,  and  to  supply 
light,  heat,  and  power  to  the  public.  Jones 
V.  North  Georgia  Electric  Co.  6:  122,  54  S. 
E.  85,  125  Ga.  618. 

77.  The  generation  of  electrical  power  by 
a  private  corporation  under  no  obligations 
to  serve  the  public,  and  not  organized  to 
meet  a  public  demand,  is  not  a  public  use 
for  which  the  power  of  eminent  domain  may 
be  exercised,  although  the  corporation  has 
announced  its  intention  to  sell  the  gener- 
ated power  to  the  public.  State  ex  rel. 
Tacoma  Industrial  Co.  v.  White  River  Pow- 
er Co.  2:  842,  82  lac.  150,  39  Wash.  648.     ' 

(Annotated) 

78.  The  generation  of  electricity  for  sale 
for  public  and  municipal  lighting,  and  for 
the  operation  of  street  railways,  is  a  public 
use  in  aid  of  which  the  power  of  eminent 
domain  may  be  exercised.  State  ex  rel. 
Dominick  v.  Superior  Court,  21  .'448,  100 
Pac.  317,  52  Wash.  196.  (Annotated) 

79.  A  corporation  organized  to  furnish 
power  and  electricity  is  to  serve  a  public 
use  for  the  benefit  of  which  the  power  of 
eminent  domain  may  be  exercised,  if  by 
statute  it  is  made  a  public  utility,  placed 
under  the  provision  of  a  public  commission, 
and  required  to  furnish  adequate  service 
and  facilities  to  all  applicants.  Wisconsin 
River  Improv.  Co.  v.  Pier,  21:  538,  118  N. 
W.  857,  137  Wis.  325. 

80.  The  power  of  eminent  domain  con- 
ferred by  Minn.  Rev.  Laws  1905,  §§  2841, 
2842,  2926,  2927,  on  public-service  corpora- 
tions organized  to  furnish,  "by  whatsoever 
means,"  electric  power  for  public  use,  may 
be  exercised  in  aid  of  the  construction  of 
canals  and  reservoirs  to  be  used  to  create 
and  distribute  electric  power  for  general  use. 
Minnesota  Canal  &  P.  Co.  v.  Pratt,  11:  105, 
112  N.  W.  395,  101  Minn.  197. 

Electric  light. 

Review    by    courts    of    legislative   grant   of 

power,  see  Courts,  120. 
See  also  supra,  4,  5,  47,  48,  71-73,  76,  78, 

84;  infra,  93. 
Ferry  landings. 

81.  The  grant  of  a  ferry  franchise  in- 
cludes the  right  to  acquire  landings  under 
the  power  of  eminent  domain.  W^arner  v. 
Ford  Lumber  &  Mfg.  Co.  12:  667,  93  S.  W, 
650,  123  Ky.  103. 

Mining. 

See  also  supra,  8,  64,  65;  infra,  89. 

82.  The  mining  of  gold  to  be  applied 
wholly  to  the  private  use  of  the  miner  is 
not  a  public  purpose  for  which  the  injury  of 
private  property  may  be  lawfully  author- 
ized. Sutter  County  v.  Nicols,  15:  616,  93 
Pac.  872,  152  Cal.  688.  (Annotated) 

83.  The  construction  of  roads  and  tram- 
ways for  the  development  of  the  mining  in- 
dustries of  a  state  is  a  public  use  for  which 
the  right  of  eminent  domain  may  be  exer- 
cised. Highland  Boy  Gold  Min.  Co.  v. 
Strickley,  i:  976,  78  Pac  296,  28  Utah,  215. 

(Annotated) 


1012 


EMINENT  DOMAIN,  I.  d,  2. 


2.  Railroads. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Condemnation  of  railroad  property  for  other 
railroad,  see  supra,  33-36. 

Sufficiency   of   petition,   see   infra,    156-158. 

Presumption  as  to,  see  Evidence,  668. 

Evidence  of  obstruction  of  surface  water 
when  determining  damages  for  condem- 
nation   of    railroad    right   of   way,    see 

'      Evidence,  1749. 

Injunction  against,  see  Injunction,  295. 

See  also  supra,  16,  18,  45,  50-52. 

84.  A  water  and  electric  light  company 
has  no  implied  authority  to  condemn  land 
under  the  power  of  eminent  domain  for  use 
of  a  railroad  company.  Kinney  v.  Citizens' 
Water  &  Light  Co.  26:  195,  90  N.  E.  129, 
173   Ind.   252. 

85.  Proceedings  to  condemn  land  for 
railroad  purposes  are  not  in  violation  of  the 
company's  charter,  and  invalid,  although  in- 
stituted on  a  line  running  southeasterly 
from  one  of  the  designated  termini  to  the 
other  terminus,  instead  of  easterly,  as 
specified  in  the  charter,  where  a  line  run- 
ning due  east  from  the  initial  point  would 
not  lead  to  the  other  terminus  designated. 
Bridwell  v.  Gate  City  Terminal  Co.  10: 
909,  56  S.  E.  624,  127  Ga.  520. 

86.  Securing  property  from  which  to 
take  materials  to  raise  the  grade  of  a  rail- 
road track  and  strengthen  the  embankment, 
which  has  been  injured  by  floods,  for  the 
convenience,  safety,  and  security  of  the 
public,  is  a  public  use  for  which  the  power 
of  eminent  domain  may  be  employed.  State 
ex  rel.  Great  Northern  R.  Co.  v.  Superior  Ct. 
40:  793,   123  Pac.   996,   68  Wash.   572. 

(Annotated) 

87.  The  right  of  eminent  domain  cannot 
be  conferred  to  secure  a  right  of  way  for  a 
private  railway  to  transport  timber  to  mar- 
ket. Cozad  V.  Kanawha  Hardwood  Co.  i: 
969,  51  S.  E.  932,  139  N,  C.  283. 

(Annotated) 

88.  The  fact  that  only  an  easement  for  a 
limited  time  is  to  be  taken  for  a  private 
railway  does  not  change  the  rule  forbidding 
the  exercise  of  the  right  of  eminent  domain 
for  that  purpose.  Cozad  v.  Kanawha  Hard- 
wood Co.  1 :  969,  51  S.  E.  932,  139  N.  C.  283. 

89.  Conveying  the  ore  from  a  mine  and 
supplies  to  it  is  a  public  use  for  which  a 
railroad  track  may  be  laid  in  a  public 
street,  where,  when  laid,  the  public  will 
have  a  right  to  use  it  so  far  as  it  is  avail- 
able for  public  use.  Kipp  v.  Davis-Daly 
Copper  Co.  36:  666,  110  Pac.  237,  41  Mont. 
509. 

Branch,  spur,  or  side  tracks. 
Question   for    jury   as   to   necessity   of,    see 

Trial,  637.  .;,,... ,   „; , 

See  also  supra,  37,  48.,fi(   ,  .',  .,ni    , 

90.  The  declaration  of  La.  Const,  1898, 
art.  272,  that  all  railroads  are  public  high- 
ways, and  that  all  railroad  companies  are 
common  carriers,  applies  not  only  to  main 
tracks,  but  also  to  all  subsidiary  tracks 
Digest   1-52  L.R.A.(N.S.) 


I  used  for  purposes  of  railroad  traffic.  Kan- 
sas City,  S.  &  G.  R.  Co.  v.  Louisiana  West- 
ern R.  Co.  5:  512,  40  So.  627,  116  La.  178. 

91.  The  constitutional  right  of  a  railroad 
company  to  intersect,  connect  with,  or  cross 
any  other  railroad  is  not  conlined  to  main 
tracks,  but  extends  to  spur  and  other  tracks 
forming  a  part  of  the  same  system,  since 
these  are  within  a  constitutional  provision 
making  all  railroads  public  highways  and 
all  railroad  companies  common  carriers. 
Kansas  City,  S.  &  G.  R.  Co.  v.  Louisiana 
Western  R.  Co.  5:  512,  40  So.  627,  116  La. 
178.  (Annotated) 

92.  A  street  cannot  be  created  under  the 
power  of  eminent  domain,  to  be  devoted  to 
the  purpose  of  railway  switch  tracks  for 
the  benefit  of  business  concerns  in  the  vicin- 
ity. Kansas  City  v.  Hyde,  7:  639,  96  S.  W. 
201,  196  Mo.  498. 

93.  Power  is  not  conferred  upon  a  mu- 
nicipality to  condemn  a  right  of  way  for  a 
spur  track  to  convey  fuel  to  a  power  plant 
used  in  connection  with  its  street  railways, 
waterworks,  electric  light,  and  sewage  sys- 
tems, merely  to  lessen  tlie  expense  of  such 
transportation,  by  a  statute  authorizing  it 
to  take  property  for  streets,  sewerage, 
waterworks,  electric  light  lines,  street  rail- 
ways, and  certain  other  purposes  named, 
not  including  spur  tracks,  "or  any  other 
public  purpose."  Wise  v.  Yazoo  City,  26: 
1 130,  51  So.  453,  96  Miss.  507. 

94.  That  the  owner  of  a  manufacturing 
plant,  to  which  a  railroad  company  is  seek- 
ing to  run  a  spur  track  over  private  land, 
has  agreed  to  furnish  the  funds  necessary 
to  construct  it,  to  be  repaid  by  the  railroad 
company,  is  not  conclusive  that  the  im- 
provement is  not  of  a  public  nature,  so  that 
the  right  of  eminent  domain  cannot  be  used 
to  secure  a  right  of  way  for  it.  Riley  v. 
Louisville,  H.  &  St.  L.  R.  Co.  35:  636,  133 
S.  W.  971,  142  Ky.  67. 

95.  A  spur  railroad  track  running  to  the 
property  of  a  particular  manufacturer,  the 
use  of  which  is  dedicated  to  the  public,  is 
shown  to  be  necessary  for  the  public,  so  as 
to  justify  the  exercise  of  the  right  of  em- 
inent domain  to  secuie  a  right  of  way, 
where  there  are  several  other  manufactur- 
ing plants  and  several  residences  in  the 
neighborhood  to  which  the  track  will  be  a 
great  convenience.  Riley  v.  Louisville,  H. 
&  St.  L.  R.  Co.  35:  636,  133  S.  W.  971,  142 
Ky.  67. 

96.  A  railroad  spur  running  to  the  prop- 
erty of  a  particular  manufacturer  is  for 
public  use,  so  that  a  right  of  way  for  it 
can  be  secured  by  right  of  eminent  domain, 
if  the  intention  is  to  project  it  beyond  such 
property  whenever  public  business  justifies 
the  extension,  and  the  use  of  the  terminal 
on  the  manufacturer's  property  is  dedicated 
to  the  public  until  the  extension  takes 
place;  at  least,  where  the  railroad  company 
intends  to  provide  shipping  facilities  for 
the  public  at  a  point  where  the  spur  crosses 
a  public  highwav.  Riley  v.  Louisville,  H.  & 
St.  L.  R.  Co.  35:*  636,  133  S.  W.  971,  142  Ky. 
67.  (Annot^,ted) 


EMINENT  DOMAIN,  I.  d,  3. 


3013 


97.  Condemnation  of  a  right  of  way  to 
extend  a  side  track  cannot  be  defeated 
on  the  ground  that  such  track  is  private, 
and  that  the  public  has  no  right  to  use  it, 
if  the  railroad,  by  its  instrument  of  appro- 
priation, has  pledged  that  the  extension 
shall  be  connected  with  its  main  track,  and 
be  used  in  its  public  service.  -  Bedford  Quar- 
ries Co.  V.  Chicago.  I.  &  L.  E.  Co.  35:  641, 
94  N.  E.  326,  175  Ind.  303. 

98.  The  right  of  eminent  domain  may  be 
exercised  to  secure  a  right  of  way  for  the 
extension  of  a  side  track  to  a  stone  quarry, 
where  it  will  extend  over  land  underlaid 
with  building  stone,  and  will  be  open  to  the 
use  of  anyone  desiring  to  ship  or  receive 
freight  along  its  course.  Bedford  Quarries 
Co.  v.  Chicago,  I.  &  L.  R.  Co.  35:  641,  94  N. 
E.  326,  175  Ind.  303. 

99.  That  a  branch  railroad  to  a  stone 
quarry  will  not  connect  with  a  railroad 
line,  but  with  a  private  branch  road  al- 
ready in  existence,  will  not  prevent  the 
exercise  of  the  right  of  eminent  domain  to 
secure  a  right  of  way,  if  the  applicant  owns 
the  private  road,  which  connects  with  the 
railroad,  and  agrees  that  the  new  road  shall 
connect  with  the  railroad  and  be  open  to 
public  use.  Westport  Stone  Co.  v.  Thomas, 
35:  646,  94  N.  E.  406,  175  Ind.  319. 

100.  A  lateral  railroad  to  a  stone  quarry, 
which,  under  the  statute,  will  be  subject  to 
governmental  control  and  open  to  the  use 
of  any  one  having  occasion  to  make  use  of 
it,  is  a  public  use,  the  right  of  way  for 
which  may  be  secured  by  exercise  of  the 
power  of  eminent  domain,  although  the  num- 
ber who  require  its  use  may  be  small.  West- 
port  Stone  Co.  v.  Thomas,  35:  646,  94  N.  E. 
406,  175  Ind.  319. 

101.  A  side  track  of  a  railroad  cannot  be 
regarded  as  for  public  use,  where  it  reaches 
a  private  factory,  and  the  railroad  company 
has  contracted  for  its  use  only  when  it  can 
use  it  without  interfering  with  the  business 
of  the  manufacturer.  Pere  Marquette  R. 
Co.  v.  United  States  Gypsum  Co.  22:  181, 
117  N.  W.  733,  154  Mich.  290. 

102.  No  public  use  is  shown  in  a  petition 
to  secure  a  right  of  way  for  a  branch  rail- 
road track  to  a  private  plaster  mill,  where 
it  is  not  shown  that  its  products  are  re- 
quired for  public  use,  or  that  they  cannot 
reach  thfe  market  or  railroad  by  some  other 
route.  Pere  Marquette  R.  Co.  v.  United 
States  Gypsum  Co.  22:  181,  117  N.  W.  733, 
154  Mich.  290.  (Annotated) 

3.  As  to  water  and  water  rights. 

(See  also   same   heading  in  Digest  L.R.A. 

1-10.)  .'.t^      -Nil: 

See  also  supra,  4,  5,  47,  68,  61,  80,  84. 

103.  A  public-service  corporation,  although 
nutiiorized  to  condemn  private  property  for 
the  construction  of  canals  and  reservoirs  for 
the  generation  of  electric  power,  cannot 
exercise  the  right  of  eminent  domain  in 
such  a  way  as  will  interfere  with  the  navi- 
gation or  navigable  capacity  of  any  of  the 
Digest  1-52  I..R.A.(N.S.) 


navigable  waters  of  the  state,  unless  such 
interference  is  expressly  authorized  by 
statute.  Minnesota  Canal  &  P.  Co.  v. 
Pratt,  11:  105,  112  N.  W.  395,  101  Minn. 
197. 

104.  The  use  of  public  navigable  waters 
for  the  construction  of  dams,  resLirvoirs, 
and  canals  to  be  utilized  by  a  public- 
service  corporation  for  the_  purpose  of 
generating  electric  power  for 'public  use  is 
not  forbidden  by  the  laws  of  Minnesota, 
where  the  contemplated  uses  will  not  ma- 
terially interfere  with  the  navigation  of 
the  waters  to  be  affected  thereby.  Minne- 
sota Canal  &  P.  Co.  v.  Pratt,  11:  105,  112 
N.  W.  395,  101  Minn.  197. 

105.  Under  the  act  of  Congress  of  March 
3,  1899,  chap.  425,  §§  9,  10  (30  Stat,  at  L. 
1151,  U.  S.  Comp.  Stat.  1901,  pp.  3540,  3541, 
6  Fed.  Stat.  Anno.  p.  805),  requiring  the 
consent  of  the  Secretary  of  War,  on  the 
approval  of  the  chief  of  engineers,  to  the 
construction  of  public  works  in  any 
navigable  water  way  within  the  United 
States,  a  public-service  corporation  should 
not  be  permitted  to  exercise  the  power  of 
eminent  domain  in  furtherance  of  an  enter- 
prise involving  interference  with  navigable 
waters  within  the  state,  without  having 
first  procured  the  approval  of  its  plan  by 
the  officers  of  the  Federal  government. 
Minnesota  Canal  &  P.  Co.  v.  Pratt,  11:  105, 
112  N.  W.  395,  101  Minn.  197. 
Irrigation  and  power. 

Payment  of,  on  discontinuance  of  eminent 
domain  proceedings,  see  Eminent  Do- 
main, 150. 

See  also  supra,  4,  5,  15,  47,  60,  80,  103,  104. 

106.  The  right  of  the  Federal  government 
to  exercise  the  power  of  eminent  domain 
to  secure  land  within  a  state  for  the  irri- 
gation of  public  land  which  it  owns  there 
is  not  affected  in  a  particular  case  by  the 
fact  that  it  intends  to  supply  water  from 
its  plant  for  the  irrigation  of  land  which 
has  passed  into  private  ownership,  at  least 
where,  under  the  laws  of  the  state,  such 
private  owners  might  have  secured  prop- 
erty necessary  for  the  irrigation  of  their 
lands  by  right  of  eminent  domain.  Bur- 
ley  V.  United  States,  33:  807,  179  Fed.  1, 
102   C.   C.   A.   429.  (Annotated) 

107.  The  reclamation  of  land  by  irriga- 
tion is  such  a  public  purpose  that  the  legis- 
lature may  rightfully  authorize  the  condem- 
nation of  rights  of  way  over  private  prop- 
erty, or  through  the  ditches  of  private 
individuals,  to  convey  water  for  that  purpose 
onto  land  belonging  to  a  private  individual. 
Nash  v.  Clark,  i:  208,  75  Pac.  371,  27  Utah. 
158,  affirmed  in  25  Sup.  Ct.  Rep.  670,  198 
U.  S.  361,  49  L.  ed.  10S5.  (Annotated) 

108.  The  construction  of  a  dam  to  furnish 
water  for  sale,  for  irrigation  purposes,  and 
to  generate  power  for  sale  to  whoever  ap- 
plies for  it,  is  for  a  public  purpose,  for 
which  the  power  of  eminent  domain  may 
be  exercised.  Spratt  v.  Helena  Power 
Transmission  Co.  8:  567,  88  Pac.  773,  35 
Mont.  108. 

109.  The  creation  of  a  water  power  and 
a  water-power  plant  for  the  purpose  of  "sup- 


1014 


EMINENT  DOMAIN,  I.  c 


plying  water  power  from  the  wheels  there- 
of" to  the  public  is  a  private  enterprise,  in 
aid  of  which  the  power  of  eminent  domain 
cannot  be  exercised.  Minnesota  Canal  & 
Power  Co.  v.  Koochiching  Co.  5:  638,  107  N. 
W.  405,  97  Minn.  429. 

110.  A  corporation  is  not  entitled,  under 
the  statutes  of  Minne.sota,  as  an  incident  to 
the  construc^on  of  a  canal  designed  mainly 
for  the  creation  of  water  power,  but  inci- 
dentally for  purposes  of  navigation,  to  with- 
draw and  divert  the  water  from  public  nav- 
igable lakes  and  streams  to  such  an  extent 
as  to  interfere  with  present  or  future  navi- 
gation, and  by  means  of  canals  carry  it  over 
a  divide  and  discharge  it  into  a  different 
drainage  area,  thus  permanently  withdraw- 
ing it  from  its  natural  course.  Minnesota 
Canal  &  Power  Co.  v.  Koochiching  Co.  5: 
638,  107  N.  VV.  405,  97  Minn.  429. 
Carrying  virater. 

111.  The  supply  of  water  to  the  public  for 
commercial  and  manufacturing  purposes  is 
a  public  use;  and  the  right  of  eminent  do- 
main may  be  lawfully  conferred  to  secure 
property  for  the  safe  storage  and  transpor- 
tation of  water  for  such  purposes,  where  all 
applicants  have  a  right  to  service,  although 
at  the  time  of  the  taking  the  principal,  if 
not  only,  customer,  will  be  a  railroad  com- 
pany. Jacobs  V.  Clearview  Water  Supply 
Co.  21:410,  69  Atl.  870,  220  Pa.  388. 

(Annotated ) 
Dams. 
See  supra,  15,  61,  ]04,  108. 

c.  Right  acquii'ed. 

(See  also   same   heading   in  Digest  L.R.A. 
1-10.) 

112.  A  petitioner  in  ad  quod  damnum  pro- 
ceedings who  owns  the  land  on  each  side  of 
a  water  course  at  the  point  where  he  pro- 
poses to  construct  and  maintain  a  dam  does 
not,  by  a  judgment  in  his  favor  and  pay- 
ment of  the  damages  assessed,  acquire  the 
right  in  perpetuity  to  flow  the  lands  of 
upper  riparian  owners,  but  secures  a  privi- 
lege which  may  be  lost  by  abandonment  or 
nonuser  for  an  unreasonable  length  of  time. 
Gross  V.  Jones,  32:47,  122  N,  W.  681,  85 
Neb.  77.  (Annotated) 

113.  The  delegation  to  a  municipal  cor- 
poration of  the  power  to  exercise  the  right 
of  eminent  domain  for  the  acquisition  of 
property  for  strictly  public  use  will  enable 
it  to  secure  the  property  free  from  tax  liens, 
unless  the  continuation  of  the  lien  is  ex- 
pressly provided  for  by  statute.  Gasaway 
v.  Seattle,  21:  68,  100  Pac.  991,  52  Wash.  444. 

114,  A  gas  supply  corporation  having  the 
right  of  condemnation,  which  selects  loca- 
tions upon  which  it  exerts  that  right,  cannot 
thereafter  depart  from  the  bounds  of  the 
lands  condemned,  and  voluntarily  take  other 
locations  on  the  lands  of  the  owner  in  the 
place  of  those  condemned,  without  his  con- 
sent, no  matter  how  essential,  convenient, 
or  uninjurious  the  selection  of  the  unau- 
thorized route  mav  be.  Lovett  v.  West 
Digest  1-52  I..R.A.(N.S.) 


Virginia  C.   Gas   Co.   24:  230,  65  S.  E.   196, 

65  W.  Va.  739. 

In  land  taken  for  highivay. 

115.  A  municipal  corporation  cannot 
take  the  fee  for  street  purposes  by  con- 
demnation proceedings,  in  the  absence  of 
statutory  authority.  Tacoma  Safety  De- 
posit Co.  V.  Chicago,  31:  868,  93  N.  E.  153, 
247  111.  192. 

By    railroad    company    against    OTrner 

of  fee. 
Action  by  owner  of  fee  to  enforce  forfeiture, 

see  Parties,  19. 
Sufficiency  of  complaint  in  action  to  recover 

possession    of    property    condemned    by 

railroad  company,  see  Pleading,  576. 
Right  of  owner  of  fee  to  complain  of  lease 

of  railroad  right  of  way  for  warehouse, 

see  Railroads,  20. 
See  also  supra,  52. 

116.  One  through  whose  property  a  rail- 
way right  of  way  is  condemned  is  bound  to 
furnish  lateral  support  for  it  with  the 
tracks  laid,  and  a  traffic  of  any  amount,  at 
any  practicable  speed,  to  its  entire  width. 
Manning  v.  New  Jersev  Short  Line  R.  Co. 
(N.  J.  Err.  &  App.)  32:  155,  78  Atl.  200, 
80  N.  J.  L.   349.  (Annotated) 

117.  An  easement  or  qualified  fee,  and 
not  a  fee  simple,  is  vested  in  a  railroad 
company  by  condemnation  proceedings  un- 
der a  statute  providing  that  the  legal  title 
shall  vest  in  the  corporation  for  corporate 
purposes,  where,  under  the  Constitution, 
the  use  for  which  property  is  taken  by  such 
corporation  must  be  a  public  one.  Neitzel 
V.  Spokane  International  R.  Co.  36:  522^ 
117  Pac.  864,  65  Wash.  100. 

118.  The  condemnation  of  a  right  of  way 
for  railway  purposes  includes  the  right  to 
use  elsewhere  so  much  of  the  earth,  rock,  and 
gravel  as  is  necessary  or  convenient  to  re- 
move in  constructing  or  repairing  the  road- 
bed. Cleveland,  C.  C.  &  St.  L.  R.  Co.  v. 
Hadley,  45:  796,  101  N.  E.  473,  179  Ind.  429. 

(Annotated) 

119.  The  filing  bj'  a  railroad  company  of 
a  map  and  profile  of  its  route,  under  a 
statute  requiring  such  filing  before  proceed- 
ing to  construct  any  part  of  its  road,  does 
not  fix  the  depth  of  the  cut  which  it  may 
make  where,  as  a  basis  for  assessment  of 
damages,  it  is  required  to  deposit  a  de- 
scription of  the  rights  and  intefests  in- 
tended to  be  appropriated,  and  therefore 
the  owner  of  the  fee  is  not  entitled  to  com- 
pensation for  earth  removed  and  used  in 
deepening  the  cut  and  reducing  grades  of 
the  road  some  time  after  the  original  con- 
struction is  completed.  Cleveland,  C.  C.  & 
St.  L.  R,  Co.  v.  Hadley,  45:  796,  101  N.  E. 
473,   179   Ind.  429. 

120.  Although  the  devotion  of  property 
condemned  by  a  railroad  company  to  pri- 
vate use  will  call  for  explanation  from 
the  company,  the  title  will  not  revert  to 
the  original  owner  unless  tlie  company  has 
finally  and  positively  abandoned  the  appli- 
cation of  the  property  to  public  use,  and 
does  not  intend  to  restore  it.  Neitzel  v. 
Spokane  International  R.  Co.  36:  522,  117 
Pac.  864,  65  W  ash.  100. 


EMINENT  DOMAIN,  II.  a. 


1015 


'  II.  "Procedure, 

a.  In  general. 

(See  also   same   heading  in  Digest  L.R.A. 

[-  f     .»i..i.,,..,    ..)    ■... 

Error  in  admission  of  evidence,  see  Appeal 
AND  Error,  1142. 

Excluding  expert  evidence  of  value  of  land 
taken  by  eminent  domain,  see  Appeal 
AND  Error,  1224. 

Conferring  upon  public  service  commission 
power  to  determine  necessity  of  taking, 
see  Constitutional  Law,  128. 

Due  process  in  procedure,  see  Constitu- 
tional Law,  551,  552. 

Estoppel  to  question  validitj'  of  proceedings, 
see  Estoppel,  229. 

Presumptions  and  burden  of  proof,  see  Evi- 
dence, 513,  663,  064. 

Evidence  to  show  purpose  for  which  prop- 
erty is  sought,  see  Evidence,  1609, 
1610. 

Evidence  as  to  valixe  of  property  sought  to 
be  condemned,  see  Evidence,  1694-1696, 
1698,  1699. 

Pleading  in  eminent  domain  proceedings, 
see  Pleading,  454,  456. 

Title  of  statute  as  to,  see  Statutes,  93,  136. 

Conferring  upon  public  service  commission 
powef  to  determine  necessity  of  taking 
and  amount  of  compensation,  see  Stat- 
utes, 352. 

Sufficiency  of  return  of  service  on  corpora- 
tion, see  Writ  and  PitocEss,  92. 

121.  It  is  not  a  prerequisite  to  the  exer- 
cise of  the  right  of  eminent  domain  that  a 
telegraph  company  seeking  to  exercise  such 
right  should  first  file  with  the  railroad  com- 
mission its  consent  that  the  commission 
shall  have  jurisdiction  over  it  for  the  pur- 
pose of  regulating  tolls  on  messages  origi- 
nating and  ending  within  the  state.  West- 
ern &  A.  R.  Co.  V.  Western  U.  Teleg.  Co 
42:  245,  75  S.  E.  471,  138  Ga.  420. 

122.  In  the  absence  of  a  statutory  re- 
quirement, the  court  is  not  bound  to  give 
appraisers  appointed  in  an  eminent  domain 
proceeding  instructions  as  to  their  duty. 
Bedford  Quarries  Co.  v.  Chicago,  I.  &  L.  R. 
Co.  35:  641,  94  N.  E.  .326,  175  Ind.  303. 
Attempt  to  agree. 

Right  to  object  that  interlocutory  order 
appointing  appraisers  fails  to  show 
effort  to  agree  as  to  compensation,  see 
Appeal  and  Error,  276. 

Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  553. 

123.  One  who  has  enjoined  a  public  service 
corporation  from  interfering  with  his 
property  cannot,  in  the  condemnation  pro- 
ceeding, raise  the  objection  that,  prior  to 
the  proceeding,  no  endeavor  was  made  to 
obtain  the  rights  by  purchase.  State  ex 
rel.  Burrows  v.  Superior  Court,  17:  1005,  93 
Pac.  423,  48   Wash.  277. 

124.  It  is  a  sufficient  negotiation,  within 
the  statutory  requirement,  prior  to  the  in-  1 
stitution    of    condemnation    proceedings    by 
a    railroad    company,    where    a    real-estate 
Digest  1-52  I..R.A.(N.S.) 


agent  representing  the  company,  informs  a 
lot  owner  that  the  company  desires  her  lot 
for  the  purpose  of  a  right  of  way  and 
freight  yard,  and  makes  her  an  offer,  which 
he  testifies  was  a  fair  price  for  the  property 
desired,  and  which  she  refuses  to  accept. 
Bridwell  v.  Gate  City  Terminal  Co.  10:  909, 
56  S.  E.  624,  127  Ga.  520. 
Notice  and  hearing. 
First  raising  question  as  to,  on  appeal,  see 

Appeal  and  Error,  722. 
See  also  infra,  172,  173. 

125.  A  landowner  is  not  entitled  to  notice 
of  a  resolution  of  a  municipal  corporation 
appropriating  his  property  for  a  highway. 
State  V.  Jones,  2:  313,  52  S.  E.  240,  139  N. 
C.  613. 

126.  A  provision  of  a  municipal  charter 
authorizing  the  condemnation  of  land  for 
highway  purposes  is  not  invalid  because  it 
makes  no  provision  for  notice  to  the  prop- 
erty owner, — at  least  if  it  provides  for 
notice  when  particular  property  is  to  be 
taken  and  the  compensation  fixed.  State  v. 
Jones,  2:  313,  52  S.  E.  240,  139  N.  C.  613. 

127.  A  description  in  the  publication  of 
notice  in  proceedings  for  the  condemnation 
of  real  property,  which  shows  the  congres 
sional  township  and  range,  so  that  the  land 
can  be  located,  is  not  insufficient  because  it 
does  not,  in  terms,  state  that  the  land  is  in 
the  county  in  which  the  proceedings  were 
commenced, — especially  as  the  statute  pro- 
vides that  the  proceedings  can  be  commenced 
only  in  the  county  where  the  land  lies. 
Southern  Indiana  R.  Co.  v.  Indianapolis  & 
L.  R.  Co.  13:  197,  81  N.  E.  65,  168  Ind.  360. 

128.  A  mistake  in  the  middle  initial  of 
the  owner  of  land  condemned  for  railroad 
purposes,  making  the  name  correspond  with 
that  of  another  person,  does  not  invalidate 
the  company's  title  to  the  land,  where  it 
sufficiently  appears  from  tlie  record  that 
the  real  owner  was  a  party  to  the  proceeding 
and  the  one  upon  whom  the  service  was 
made.  Illinois  C.  R.  Co.  v.  Hasenwinkle, 
15:  129,  83  N.  E.  815,  232  111.  224. 

(Annotated) 

129.  Notice  of  a  condemnation  proceeding 
given  to  "J.  H.  Burtis"  is  to  be  taken  to 
be  the  same  as  if  given  to  J.  Burtis,  the 
first  letter  being  regarded  as  an  abbreviation 
of  the  Christian  name  beginning  with  the 
letter  "J."  Illinois  C.  R.  Co.  v.  Hasen- 
winkle, 15:  129,  83  N.  E.  815,  232  111.  224. 

130.  Ratification  by  the  board  of  direct- 
ors of  a  railroad  company,  of  a  notice  of 
the  commencement  of  condemnation  pro- 
ceedings, given  by  the  president  of  the  com- 
pany without  lawful  authority,  will  not  re- 
late back  and  give  the  notice  the  effect 
which  it  would  have  had  if  it  had  been  legal 
when  given,  where  the  time  has  expired, 
under  its  terms,  for  the  appointment  of  an 
assessor  by  the  landowner.  Bridwell  v. 
Gate  City  Terminal  Co.  10:909,  56  S.  E. 
624,  127  Ga.  520. 

131.  One  whose  property  is  condemned  for 
highway  purposes  is  entitled  to  a  hearing  on 
the  question  of  compensation,  but  not  as 
to  the  desirability  of  the  improvement,  or 


1016 


EMINENT  DOMAIN,  II.  a. 


the  necessity  for  taking  his  land.     State  v. 
Jones,  2:  313,  52  S,  E.  240,  139  N.  C.  613. 
Plats  and  maps. 

132.  That  a  slough  sought  to  be  con- 
demned for  public  use  is  not  shown  by  the 
government  plat  from  which  the  pla  for 
condemnation  is  made,  as  required  'ly  stat- 
ute, does  not  make  the  proceeding  insuffi- 
cient if  it  is  part  of  the  contiguous  land 
which  is  shown  in  the  condemnation  plat, 
and  is  therefore  subject  to  condemnation. 
State  ex  rel.  Burrows  v.  Superior  Court,  17: 
1005,  93  Pac.  423,  48  Wash.  277. 

133.  The  filing  of  the  map  and  profile  con- 
templated by  a  statute  providing  that,  be- 
fore a  railroad  company  shall  proceed  to 
construct  a  part  of  its  road  into  or  through 
any  county  named  in  its  articles  of  asso- 
ciation; it  shall  make  and  file  a  map  and 
profile  of  the  route  intended  to  be  adopted 
by  such  company,  is  not  required  to  pre- 
cede condemnation  proceedings  to  obtain  a 
right  of  way.  Southern  Indiana  R.  Co.  v. 
Indianapolis  &  L.  R.  Co.  13:  197,  81  N.  E. 
65,  168  Ind.  360. 

Parties. 

134.  A  county  having  a  tax  lien  on  real 
e^ate  is  not  within  the  meaning  of  a  stat- 
ute empowering  a  municipality  to  acquire 
property  for  its  needs  by  right  of  eminent 
domain,  which  requires  persons  having  an 
interest  in  the  property  to  be  made  parties 
to  the  proceeding.  Gasaway  v.  Seattle,  21: 
68,  100  Pac.  991,  52  Wash.  444. 

i  (Annotated) 

iSS.'tJhder  a  statute  that  allows  condemna- 
tion by  a  telegraph  company  of  land  be- 
longing to  the  state  upon  the  same  plane 
as  the  right  of  way  of  a  railroad  company 
or  private  land,  that  is,  by  making  due  com- 
pensation therefor,  a  telegraph  company 
cannot  condemn  the  usufructuary  interest 
of  u  lessee  of  a  railroad  belonging  to  the 
state  in  an  action  against  the  lessee  alone 
without  joining  the  state.  Western  &  A.  R. 
Co.  v.  Western  U.  Teleg.  Co.  42:  225,  75 
S.  E.  471,  138  Ga.  420. 
Defenses  and  objections. 
Burden  of  proving,  see  Evidence,  663. 

136.  An  attempt  by  a  natural  gas  com- 
pany to  condemn  a  right  of  way  for  a  pipe 
line  cannot  be  defeated  by  the  fact  that  it 
intends  to  sell  its  entire  product  to  a 
corporation  manufacturing  artificial  gas  for 
distribution.  Calor  Oil  &  Gas  Co.  v.  Fran- 
zell.   36:  456,   109   S.   W.   328,   128   Ky.   715. 

137.  A  landowner  cannot  defeat  a  pro- 
ceeding to  condemn  a  right  of  way  for  a 
gas  pipe  line  across  his  property,  on  the 
ground  that  the  enterprise  will  not  be 
profitable.  Calor  Oil  &  Gas  Co.  v.  Franzell, 
36:  456,   109  S.   W.   328,   128  Ky.   715. 

138.  The  right  of  a  natural  gas  company 
to  acquire  a  right  of  way  for  its  pipe  line 
cannot  he  defeated  by  the  fact  that  it  has 
acquired  no  franchise  to  distribute  its  prod- 
uct in  the  city  to  which  it  is  to  pipe  it. 
Calor  Oil  &  Gas  Co.  v.  Franzell,  36:  456, 
109  S.  W*.  328,  128  Ky.  715. 

139.  A  landowner  cannot  defeat  a  pro- 
ceeding to  condemn  a  right  of  way  across 
Digest  1-52  L.R.A.(N.S.) 


his  property  by  attacking  the  existence  of 
the  petitioner,  if  it  is  a  corporation  organ- 
ized as  the  statute  requires.  Calor  Oil 
&  Gas  Co.  V.  Franzell,  36:  456,  109  S.  W. 
328,  128  Ky.  715. 

140.  The  de  facto  existence  of  the  corpo- 
ration seeking  to  exercise  the  right  of 
eminent  domain  may  be  inquired  into  at 
the  instance  of  the  property  owner  to  de- 
feat the  proceedings.  Sisters  of  Charity 
V.  Morris  R.  Co.  50:  236,  86  Atl.  954,  84 
N.  J.  L.  310. 

141.  A  statute  providing  for  the  taking 
of  railroad  switch  yards  for  a  park  is  not 
invalid  for  failure  to  provide  for  their  con- 
tinued use  by  the  railroad  c'onij)any  while 
establishing  other  yards.  Southern  R.  Co. 
v.  Memphis,  41:828,  148  S.  W.  662,  126 
Tenn.  267. 

142.  That  a  fund  provided  by  a  statute 
conferring  the  power  of  eminent  domain 
upon  a  city  is  to  be  placed  in  the  i)ossession 
of  the  park  commissioners,  which  shall 
expend  only  a  specified  maximum  amount 
for  the  property,  does  not  render  the  stat- 
ute void  on  the  theory  that  the  city,  al- 
though invested  with  the  power  to  take, 
has  no  ability  to  pay,  since  the  commis- 
sioners will  be  regarded  as  agents  of  the 
city  to  make  the  pavment.  Southern  R. 
Co.  V.  Memphis,  41:  828,  148  S.  W.  662,  126 
Tenn.  267. 

143.  Where  a  telegraph  company,  in  its 
notice  of  condemnation,  seeks  only  to  oc- 
cupy a  railroad  company's  right  of  way  for 
the  purpose  of  constructing  and  maintain- 
ing a  telegraph  line,  the  possibility  of 
stringing  telephone  wires  for  the  use  of  a 
telephone  company  is  no  objection  to  the 
right  to  condemn,  for  when  the  telegraph 
company  attempts  to  impose  an  additional 
servitude,  the  railroad  company  has  its 
remedy  against  such  act.  Western  &  A.  R. 
Co.  v.  Western  U.  Teleg.  Co.  42:  225,  75  S. 
E.  471,  138  Ga.  420. 

144.  A  railroad  company  cannot  defeat 
the  exercise  of  the  riglit  of  eminent  domain 
by  a  telegraph  company  seeking  to  con- 
struct a  line  of  telegraph  on  a  portion  of 
its  right  of  way,  by  the  construction  and 
mai-tenance  of  a  line  on  both  sides  of  its 
track,  when  a  line  on  one  side  of  its  track 
is  ample  to  furnish  it  with  necessary  tele- 
graph service.  Western  &  A.  R.  Co.  y. 
Western  U.  Teleg,  Co.  42:  225,  75  S.  E.  471, 
138  Ga.  420. 

145.  Where  it  appears  that  the  demands 
of  a  modern  railroad  company  are  such  that 
a  telegraph  system  is  a  necessary  auxiliary 
to  its  safe  and  proper  operation;  and  where 
it  appears  that  present  telegraph  service  is 
afforded  to  the  railroad  company  by  an 
existing  line  of  telegraph  by  virtue  of  a 
contract  between  the  railroad  company  and 
the  telegraph  company,  which  contract  is 
about  to  terminate;  and  where  it  appears 
that  the  existing  lines  are  located  on  an 
advantageous  portion  of  the  right  of  way, 
and  that  the  railroad  company,  in  order  tp 
obtain  the  necessary  telegraph  service,  in- 
tends and  purposes,  in  good  faith,  to  con- 


EMINENT  DOMAIN,  II.  b. 


1017 


struct  a  line  of  its  own  on  the  location  of  | 
the  old  telegraph  line,  relatively  to  a  tele- 
grapli  company  proposing  to  condemn  a 
riglit  of  way, — the  railroad  company  has  a 
preferential  selection  of  the  route;  and  un- 
der such  circumstances,  the  telegraph  com- 
pany will  be  enjoined  from  condemning  the 
route  which  has  been  selected  in  good  faith 
by  the  railroad  company.  Western  &  A.  R. 
Co.  V.  Western  U.  Teleg.  Co.  42:  225,  75  S. 
E.  471,  138  Ga.  420. 

146.  A  property  owner  cannot  defeat  a 
proceeding  to  condemn  for  public  use  cer- 
tain rights  in  the  property,  on  the  ground 
that  the  rights  sought  will  be  insufficient  to 
enable  petitioner  to  transact  its  business 
without  using  additional  property  of  object- 
or, not  sought  to  be  appropriated.  State  ex 
rel.  Burrows  v.  Superior  Court,  17:  1005,  93 
Pac.  423,  48  Wash.  277. 

147.  Absence  of  a  provision  in  a  statute 
conferring  the  power  of  eminent  domain 
upon  a  city,  for  the  levying  of  a  tax  to 
pay  the  compensation,  or  even  requiring 
compensation  to  be  paid,  does  not  invalidate 
it  if  the  Constitution  requires  compensation 
to  be  paid  and  the  statute  provides  that  the 
judgment  of  condemnation  shall  not  take 
effect  until  the  award  is  paid  into  court. 
Loui.sville  &  N.  R.  Co.  v.  Louisville,  24:  1213, 
114  S.  W.  743,  131  Ky.  108. 

148.  That  the  legislature  selects  a  par- 
ticular parcel  of  property  to  be  acquired 
at  a  maximum  price  by  a  city  for  park  pur- 
poses does  not  render  the  statute  void  on 
the  theory  that  the  owner  will  not  recover 
adequate  compensation  for  his  property, 
since,  the  procedure  being  that  provided  by 
the  statutes  regulating  the  exercise  of  the 
right  of  eminent  domain,  the  title  cannot 
be  acquired  if  the  compensation  is  not 
adequate.  Southern  R.  Co.  v.  Memphis, 
41 :  828,  148  S.  W.  662,  126  Tenn.  267. 
Discontinuance  of  proceedings. 

149.  A  municipal  corporation  may  dis- 
miss proceedings  to  condemn  land  for  a 
street  after  a  verdict  assessing  damages  for 
the  land  taken,  if  the  benefits  assessed  did 
not  equal  the  damages  awarded  as  required 
by  statute,  so  that  the  right  of  the  prop- 
erty owner  has  not  become  complete  and  no 
process  remains  by  which  the  verdict  can 
be  corrected.  District  of  Columbia  v.  Hess, 
28:  91,  35  App.  D.  C.  38.  (Annotated) 

150.  A  provision  for  the  payment  of  costs 
by  a  city  upon  discontinuing  eminent  do- 
main proceedings  does  not  include  the 
amount  paid  expert  witnesses  employed  by 
the  property  owner  to  establish  the  value 
of  his  property.  Re  Pittsburg,  52:  262,  90 
Atl.  329.  243  Pa.  392. 

151.  The  loss  occasioned  to  a  property 
owner  by  the  termination  of  negotiations 
for  a  lease  of  his  property,  due  to  the 
institution  of  proceedings  by  a  municipal 
corporation  to  condemn  a  portion  of  the 
property  for  public  use,  is  not  Avithin  a 
statutory  provision  requiring  the  city  upon 
discontinuance  of  such  proceedings,  prior 
to  the  entry  upon,  taking  or  appropriation 
x>f,  or  injury  to,  any  property  or  materials, 
to  pay  any  actual  damage,  loss,  or  injury 
iJigest   1-52  Ii.R.A.(N.S.) 


sustained  by  reason  of  such  proceedings. 
Re  Pittsburg,  52:  262,  90  Atl.  329,  243  Pa. 
392.  (Annotated.) 

b.  Petition. 

(See   also   same   heading   in   Digest   L.R.A 
1-10.) 

Amendment  of   complaint  in  condemnation 

proceedings,  see  Pleading,  96. 
Supplemental  pleading,  see  Pleading,  130. 

152.  A  complaint  in  eminent  domain  pro- 
ceedings need  not  allege  the  public  neces- 
sity for  the  taking  of  the  property  sought 
to  be  condemned,  under  N.  D.  Rev.  Codes 
1905,  §  7592.  Grafton  v.  St.  Paul,  M.  &  M. 
R.  Co.  22:  I,  113  N.  W.  698,  16  N.  D.  313. 

153.  The  failure  to  aver  in  the  petition 
in  an  action  by  an  electric  power,  heat, 
light,  and  traction  company  to  condemn 
land,  that  such  company  has  a  contract  to 
supply  any  municipality  or  company  with 
electricity,  does  not  render  the  petition  de- 
fective. Pittsburg  Hydro-Electric  Co.  v. 
Liston,  40:  602,  73  S.  E.  86,  70  W.  Va.  83. 

154.  In  condenming  an  easement  in  land 
for  the  purpose  of  laying  pipe  lines  for  con- 
veying natural  gas,  the  pipes  to  be  carried 
under  the  surface  of  the  ground  to  such 
a  depth  as  not  to  interfere  with  the  use 
of  the  land  for  agricultural  purposes,  it 
is  not  necessary  to  describe  a  definite  width 
or  depth  for  such  right  of  way  or  easement, 
but  it  must  pursue  a  definite  line  with 
courses  and  distances  given,  and  have  defi- 
nite and  fixed  termini.  Carnegie  Natural 
Gas  Co.  V.  Swiger,  46:  1073,  79  S.  E.  3, 
72  W.  Va.  557. 

155.  That  a  strip  of  private  property  in- 
tervenes between  the  termini  designated  for 
a  pipe  line,  for  the  location  of  which 
through  the  public  streets  of  a  city  permis- 
sion is  sought  of  the  proper  authorities, 
does  not  aff"ect  their  jurisdiction  so  far  as 
the  streets  are  concerned,  under  a  statute 
requiring  the  petition  to  state  the  termini 
with  as  much  particularity  and  certainty  as 
practicable;  and  it  is  not  necessary  that 
the  termini  on  each  side  of  the  private  land 
be  stated.  Cheney  v.  Barker,  16:  436,  84 
N.  E.  492,  198  Mass.  356. 

156.  The  location,  general  route,  width, 
and  termini  of  a  railroad,  which,  by  stat- 
ute, must  be  set  out  in  the  petition,  in  pro- 
ceedings to  condemn  a  right  of  way,  relate 
to  what  is  "sought;"  that  is,  the  specific 
right  of  way  which  is  sought  to  be  taken 
from  the  party  or  parties  defendant  to  the 
proceedings.  Southern  Indiana  R.  Co.  v. 
Indianapolis  &  L.  R.  Co.  13:  197,  81  N.  E. 
65,  168  Ind.  360. 

157.  A  complaint  in  a  proceeding  by  one 
railroad  company  to  take  the  land  of  an- 
other is  not  subject  to  the  objection,  made 
for  the  first  time  on  appeal,  that  it  shows 
no  intent  to  appropriate,  except  as  the  con- 
ditions annexed  are  made  a  constituent  part 
of  the  taking,  because  of  statements  therein 
that  the  appropriation  of  the  right  of  way 
described  is  made  subject  to  the  defendant's 


1018 


EMINENT  DOMAIN,  II.  c,  1,  2. 


right  to  join  its  roadbed  when  built  up  to 
and  against  tlie  ruadbed  constructed  by  the 
plaintiff,  and  that,  if  the  defendant  elects  so 
to  construct  its  roadbed  at  some  future  day, 
it  shall  pay  to  plaintiff  the  actual  cost  to 
it  of  any  right  of  way  taken  from  the  plain- 
tiff for  such  purpose,  with  the  actual  cost 
of  so  much  of  the  plaintiff's  roadbed  and 
construction  work  as  defendant  may  use,  and 
would  otherwise  be  required  to  construct. 
Southern  Indiana  R.  Co.  v.  Indianapolis  & 
L.  R.  Co.  13:  197,  81  N.  E.  65,  168  Ind.  360. 

158.  A  petition  for  the  condemnation  for 
railroad  purposes  of  a  right  of  way  upon 
which  a  railroad  is  already  constructed, 
without  attempting  to  condemn  the  rail- 
road, is  insufficient,  where  it  is  admitted 
that  the  right  of  way  is  not  sufficient  to 
accommodate  two  roads.  Alfred  Phosphate 
Co.  V.  Duck  River  Phosphate  Co.  22:  701, 
113  S.  W.  410,  120  Tenn.  260. 

■■'■J  •        ■■'    '.■   -M  '; 

c.  THal;   judgment. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
»'    1-10.) 

Due  process  in   condemnation   proceedings, 

see    CoNSTiTXJTioNAL    Law,    594-596. 
Evidence    admissible    under    pleading,    see 

Evidence,  2425. 
Necessity  for  exercise  of  power  of  eminent 

domain  as  question  for  jury,  see  Trial, 

216. 
Question  for  jury  as  to  public  need  or  bene- 
,•^^     fit,   see  Trial. 

159.  In  a  proceeding  by  a  corporation  to 
acquire  a  right  of  way  for  its  pipe  lines, 
no  inquiry  is  admissible  into  the  purpose 
for  which  another  corporation  purchased 
a  majority  of  its  stock,  or  its  right  to 
purchase.  Calor  Oil  &  Gas  Co.  v.  Fran- 
zell,  36:  456,  109  S.  W.  328,  128  Ky.  715. 
Competency    of    commissioners. 

160.  One  whose  property  is  subject  to  as- 
sessment to  pay  for  land  taken  by  a  city 
under  right  of  eminent  domain  is  not  com- 
petent to  act  as  a  commissioner  in  the 
condemnation  proceeding,  although  the  stat- 
ute makes  incompetent  only  those  inter- 
ested in  the  property  to  be  taken.  Re 
Rochester,  47:  151,  101  N.  E.  875,  208  N.  Y. 
188.  (Annotated) 

161.  Failure  of  the  property  owner  to 
object  to  the  competency  of  commissioners 
appointed  by  the  court  in  proceedings  to 
condemn  his  land  for  public  use  until  the 
award  is  made  does  not  constitute  a  waiver 
of  the  disqualification,  if  he  did  not  learn 
the  facts  which  rendered  them  incompetent 
during  the  proceedings  before  them.  Re 
Rochester,  47:  151,  101  N.  E.  875,  208  N. 
Y.  188. 

Digest  1-52  I<.R.A.(N.S.) 


2.  Jury    and    verdict;    award    of    com- 
missioners. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Modification    of   judgment.    Bee   Judgment, 

65. 
Question  for  jury,  see  Tbial,  636,  637. 

162.  In  condemnation  proceedings,  where 
the  lands  are  liable  at  the  time  the  petition 
is  filed  to  future  assessments  for  municipal 
improvements  already  made,  and  the  assess- 
ments are  in  fact  made  before  the  final 
award  and  payment  for  the  land,  the  court 
of  chancery  may,  upon  the  money  being 
paid  into  court  pursuant  to  the  statute, 
order  the  amount  of  the  assessments  paid 
to  the  municipality.  Bowers  v.  Bloomfield, 
(N.  J.  Err.  &  App.)  45:  451,  86  Atl.  428, 
81  N.  J.  Eq.  163.  (Annotated) 
Bight  to  jury  trial. 

Waiver  of  right,  see  Jury,  37. 

Failure  of  sheriff  to  state  in  return  names 

of    persons    summoned    as    jurors,    see 

Jury,  56. 

163.  Permitting  a  state  railroad  commis- 
sion to  exercise  the  right  of  eminent  do- 
main and  assess  the  damages  for  a  taking 
of  property  violates  no  provision  of  the 
Federal  Constitution.  Pajific  Teleph.  «t 
Teleg.  Co.  v.  Eshleman,  50:  652,  137  Pac. 
1119,   166  Cal.  640. 

164.  The  use  of  the  jury  regularly  drawn 
for  the  term,  rather  than  a  special  jury,  is 
not  required  by  a  statute  providing  that 
eminent  domain  proceedings  shall  bo  before 
a  jury  in  court,  instead  of  a  sheriff's  jury. 
Pitsnogle  v.  Western  Maryland  R.  Co.  46: 
319,  87  Atl.  917,  119  Md.  673. 

Amrard  of  commissioners. 

Appeal  from  award,  see  infra,  172-178. 

Necessity  of  appealing  from  order  overrul- 
ing objections  to  appointment  of  ap- 
praisers, as  well  as  from  order  appoint- 
ing appraisers,  see  Appeal  and  Error, 
550. 

Review  on  appeal  of  order  setting  aside 
award  of  commissioners,  see  Appeal 
and  Error,  564. 

Due  process  as  to  award,  see  Constitu- 
tional Law,  559,  560. 

Admissibility  of  parol  evidence,  generally, 
as  to  what  facts  railroad  commission 
based  its  award  upon,  see  Evidence, 
904. 

Effect  of  award  for  land  condemned  to  raise 
street  on  right  to  recover  for  conse- 
quential injuries  subsequently  develop- 
ing, see  Highways,  139. 

Interest  on  award,  see  Interest,  28,  29, 

165.  The  deposit  and  acceptance  of  the 
amount  awarded  by  the  commissioners  as 
compensation  for  a  railroad  right  of  way, 
and  the  taking  possession  of  the  property 
by  the  railroad  company,  do  not  preclude 
it  from  contesting  in  court  the  correctness 
of  the  award,  St.  Louis,  M.  &  S.  E.  R.  Co. 
V.  Aubuchon,  9:  426,  97  S.  W.  867,  499  Mo. 
352. 

166.  An     award    of    commissioners    a^- 


EMINENT  DOMAIN,  II.  d. 


1019 


pointed  in  condemnation  proceedings  may 
be  set  aside  by  the  court  in  which  the  pro- 
ceedings were  commenced,  on  the  ground  of 
improper  conduct  on  the  part  of  either  the 
commissioners  or  the  parties.  Re  Milwau- 
kee Light,  H.  &  T.  Co.  27:  567,  125  N.  W. 
903,  142  Wis.  424.  (Annotated) 

167.  A  statutory  provision  allowing  an 
appeal  from  the  award  of  commissioners  ap- 
pointed in  condemnation  proceedings  does 
not  preclude  the  court  in  which  the  proceed- 
ing was  instituted  from  setting  aside  the 
award  for  misconduct,  since  an  appeal 
thereto  would  merely  test  the  result  of  the 
judgment  on  the  question  of  damages,  and 
not  the  good-faith  character  of  the  award. 
Re  Milwaukee  Light,  H.  &  T.  Co.  27:  567, 
125  N.  W.  903,  142  Wis.  424. 

168.  The  '"going  value"  of  the  plant  of  a 
public  utility  corporation  is  of  such  a  char- 
acter that  an  exact  ascertainment  in  money 
is  not  necessary  to  the  validity  of  the  award 
of  a  railroad  commission  determining  the 
entire  value  of  the  plant.  Appleton  Water- 
works Co.  V.  Railroad  Commission,  47:  770, 
142  N.  W.  470,  154  Wis.  121. 

169.  Where  the  report  of  a  railroad  com- 
mission shows  that  the  commission  consid- 
ered the  "going  value"  of  the  plant  of  a 
public  utility  corporation  in  determining 
the  entire  value  of  the  plant,  testimony  of 
the  members  of  the  commission  as  to  the 
exact  valuation  placed  upon  the  "going 
value,"  or  the  method  of  determining  it,  is 
incompetent.  Appleton  Waterworks  Co.  v. 
Railroad  Commission,  47:  770,  142  N.  W. 
476,   154  Wis.  121. 

i  170.  Where  the  record  of  the  proceedings 
of  a  railroad  commission  is  silent  as  to 
whether  or  not  the  commission  adopted  the 
report  of  engineers  as  to  the  cost  of  present 
reproduction  of  the  property  of  a  public 
utility  corporation,  from  which  the  cost  of 
paving  over  service  pipe  and  trenching  for 
the  same  was  excluded,  it  is  competent  to 
establish  this  fact  by  the  testimony  of  the 
members  of  the  commission.  Appleton 
Waterworks  Co.  v.  Railroad  Commission, 
47:  770,  142  N.  W.  476,  154  Wis.  121. 

171.  Testimony  of  the  members  of  a  rail- 
road commission  as  to  the  process  of  rea- 
soning by  which  they  arrive  at  the  value 
placed  upon  the  property  of  a  public  utility 
corporation,  whose  property  is  being  taken 
by  a  municipality,  will  not  be  received  to 
impeach  the  award  of  the  commission.  Ap- 
pleton Waterworks  Co.  v.  Railroad  Commis 
sion,  47:  770,  142  N.  W.  476,  154  Wis.  121. 

d.  Appeal;  costs;  new   trial. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70  J 

Appeal. 

Abandonment  of  appeal,  see  Appeal  and 
Ereoe,  10. 

Review  of  discretion  of  trial  court  as  to 
amount  of  attorneys'  fees  to  be  allowed 

■  '^■'~  to  property  owner,  see  Appeal  and  Er- 
ror, 572. 

Digest  1-52  L.R.A.(N.S.) 


First  raising  question  as  to  notice  on  ap- 
peal, see  Appeal  and  Error,  722. 

Judgment  on  appeal  in  eminent  domain  pro- 
ceeding, see  Appeal  and  Error,  1573. 

Participation  by  appellate  court  in  division 
of  fund  where  damages  are  nominal 
only,  see  Appeal  and  Error,  1604. 

Costs  on  appeal,  see  Appeal  and  Error, 
1637. 

Review  of  proceeding  on  certiorari,  see  Cer- 
tiorari, 9,  19.  , 

Review  of  municipal  decision  as  to,  see 
Courts,  143. 

See  also  infra,   253,   254. 

172.  A  provision  of  a  statute  authorizing 
the  exercise  of  the  power  of  eminent  do- 
main, which  gives  one  whose  land  is  to  be 
taken  the  right  to  select  one  of  the  ap- 
praisers for  the  fixing  of  the  value  of  the 
px-operty,  and  the  right  to  appeal  from  the 
award,  is  tantamount  to  requiring  notice  to 
him  of  the  appraisement.  State  v.  Jones,  2: 
313,  52  S.  E.  240,  139  N.  C.  613. 

173.  A  proper  hearing  is  accorded  the 
owner  of  property  sought  for  highway  pur- 
poses by  a  provision  authorizing  the  choice 
of  an  appraiser  by  the  municipality  and  one 
by  him,  with  authority  in  them  to  choose  a 
third,  and  the  right  to  appeal  from  their 
decision  to  the  court;  and  it  is  immaterial 
that  all  the  appraisers  are  to  be  freeholders 
of  the  municipality.  State  v.  Jones,  2:  313, 
52  S.  E.  240,  139  N.  0.  613. 

174.  The  acceptance  of  an  award  of  a 
railroad  commission  by  a  public  utility 
corporation  and  its  receiver,  pending  an 
action  by  the  utility  corporation  to  alter 
and  amend  such  an  award,  is  not  a  waiver 
of  its  right  to  prosecute  the  appeal  from 
the  order,  since  upon  an  appeal  by  the  util- 
ity corporation,  the  amount  of  the  award 
cannot  be  reduced.  Appleton  Waterworks 
Co.  V.  Railroad  Commission,  47:  770,  142 
N.  W.  476,  154  Wis.  121. 

175.  Upon  reversal  of  a  decision  of  a 
county  court  in  an  eminent  domain  pro- 
ceeding, to  the  effect  that  petitioner  has  not 
the  power  of  eminent  domain,  on  appeal  to 
the  circuit  court,  where  by  statute  the  trial 
is  to  be  de  novo,  the  cause  need  not  be 
remanded  for  trial  upon  the  question  of 
damages,  but  the  circuit  court  may  try  that 
question  itself.  Calor  Oil  &  Gas  Co.  v. 
Franzell,  36:  456,  109  S.  W.  328,  128  Ky. 
715. 

176.  Upon  a  proceeding  to  alter  or  amend 
an  order  of  the  state  railroad  commission 
as  provided  in  §§  1797m-83,  Wis.  Stat.  1911, 
the  court  examines  fnto  the  specific  claims 
of  error  or  unreasonableness  made  by  the 
plaintiff  in  the  action,  and  if  it  finds  them 
satisfactorily  established  the  order  is  re- 
manded to  the  commission  for  correction  in 
these  particulars,  but  is  not  opened  up  for 
a  trial  de  novo.  Appleton  Waterworks  Co. 
V.  Railroad  Commission,  47:  770,  142  N.  W. 
476,  154  Wis.  121. 

Costs. 

Costs  generally,  see  Costs  and  Fees,  6. 
Costs   on   appeal,   see   Appeal   and   Error, 
1637. 


1020 


EMINENT  DOMAIN,  III.  a,  b,  1. 


177.  Where  a  public  utility  company  sur- 
renders its  franchise  and  receives  an  inde- 
terminate permit  under  the  utility  law,  an 
order  thereafter  made  by  the  commission 
fixing  the  compensation  to  the  utility  com- 
pany for  its  property  taken  by  the  munici- 
pality cannot  rightly  require  the  municipal- 
ity to  pay,  in  addition  to  the  compensation 
fixed,  the  costs  of  an  action  which  may  be 
thereafter  brought  by  the  utility  company 
against  the  commission  to  alter  or  amend 
the  order,  whether  Buch  action  be  successful 
or  not,  in  the  absence  of  an  affirmative  grant 
of  such  costs  in  the  statute.  Appleton 
Waterworks  Co.  v.  Railroad  Commission, 
47:  770,  142  N.  W.  476,  154  Wis.  121. 

178.  One  seeking  to  condemn  property  un- 
der the  power  of  eminent  domain,  who  suc- 
ceeds on  appeal  from  an  award  against  him, 
cannot  tax  the  costs  of  the  appeal  against 
the  landowner.  Peoria,  B.  &  C.  Traction 
Co.  V.  Vance,  36:  624,  95  N.  E.  1081.  251 
111.  263.  (Annotated) 
Ne\r  trial. 

Time  to  apply  for,  see  New  Trial,  75. 

III.  Rights  and  remedies  of  owners, 
a.  In  general. 

(See  also   same   heading   in  Digest  L.R.A. 

;tiP'.- 

Implied  agreement  of  railroad  to  pay  for 
land  taken  without  first  securing  right, 
see  CoNTBACTS,  16. 

Measure  of  damages  in  condemnation  case, 
see  Damages,  III.  1. 

Estoppel  to  enjoin  laying  pipe  lines  in  pri- 
vate property,  see  Estoppel,  155. 

Injunction  against  taking  of  land,  see  In- 
junction,  25,   182-184. 

See  also  supra,  114. 

179.  The  remedy  of  one  over  whose  prop- 
erty a  temporary  structure  is  erected  for 
the  running  of  trains  pending  an  elevation 
of  railroad  tracks  is  an  action  for  trespass, 
and  not  under  the  statutes  allowing  com- 
pensation for  property  taken  by  right  of  em- 
inent domain.  Davis  v.  New  England  R. 
Co.  20:  1061,  86  N.  E.  475,  199  Mass.  292. 

b.  What  constitutes  a  taking  of,  or  in- 
jury to,  property. 

1.  In  general. 

(See  also  same  headip,g  in  Digest  L.R.A. 
1-70.)       . 

As  to  necessity  of  making  compensation 
generally,  see  infra.  III.  c,  1. 

As  to  consequential  injuries  from  taking, 
see   infra.   III.   e. 

As  to  additional  servitude,  see  infra^  IV. 

Provisions  as  to  capital  of  bank,  see  CoN- 

STITtTTIONAL  LaW,  280,  281. 

Frontage  tax  for  street  sprinkling  as  a  tak- 
ing of  property,  see  Public  Impkove- 
MENTS,   40.  .    . 

Digest  1-52  L.R.A.(N.S.) 


180.  The  word  "damaged,"  as  used  in  a 
constitutional  provision  forbidding  the  en- 
actment of  a  law  whereby  property  shall 
be  damaged  for  public  use  without  just  com- 
pensation, is  not  confined  to  acts  which 
would  give  a  cause  of  action  if  done  by  an 
individual.  Tidewater  R.  Co.  v.  Shartzer, 
17:  1053,  59  S.  E.  407,  107  Va.  562. 

181.  Private  property  is  not  taken,  so  as 
to  require  compensation,  by  regulating  the 
cutting  of  trees  on  wild  and  uncultivated 
land  to  protect  the  public  water  supply, 
and,  for  the  same  purpose,  prohibiting  the 
cutting  of  small  trees  on  such  property, 
the  value  of  which  standing  is  equal  to  or 
greater  that  when  cut,  and  regulating  the 
cutting  of  small  trees  on  such  land  to  en- 
hance the  value  of  such  land  and  the  trees 
thereon,  and  promote  the  interests  ot  the 
owners  and  the  common  welfare  of  the  pub- 
lic. Opinion  of  Justices,  19:  422,  69  Atl. 
627,  103  Me.  506. 

3  82.  Regulation  by  the  state  of  the  ctit- 
ting  or  destruction  of  trees  growing  on  wild 
and  uncultivated  land,  or  prohibition  of  the 
wanton  cutting  of  small  trees  on  stich  lands 
which  are  of  equal  or  greater  value  standing 
than  cut,  for  the  purpose  of  protecting  the 
water  supply  of  the  state,  is  not  a  taking 
of  property  for  which  compensation  must 
be  made  under  the  14th  Amendment  of  the 
Federal  Constitution,  since  that  amendment 
was  not  intended  to  interfere  wit"  the  police 
power  of  the  state.  Opinion  of  Justices, 
19:  422,  69  Atl.  627,  103  Me.  506. 

(Annotated) 

183.  Injury  to  buildings  on  property  120 
feet  from  a  railroad  tunnel,  by  the  removal 
of  lateral  support  or  the  jar  of  blasting, 
renders  the  railroad  company  liable  for  the 
damages,  under  a  constitutional  provision 
that  private  property  shall  not  be  damaged 
for  public  use  without  compensation, 
whether  the  company  was  negligent  in  car- 
rying on  its  operations  or  not.  Farnandis 
v.  Great  Northern  R.  Co.  5:  1086,  84  Pac. 
18,   41    Wash.    486.  (Annotated) 

184.  The  operation  of  trains  and  engines 
on  tracks  lawfully  constructed  for  the  pur- 
pose of  switching  and  making  up  trains  near 
a  church,  the  effect  of  which  is  to  interrupt 
religious  services  therein  and  annoy  the 
speakers,  singers,  and  congregation  by  the 
noise,  is  not  a  damaging  of  the  property 
within  the  meaning  of  a  constitutional  pro- 
vision requiring  compensation  to  be  made  in 
case  property  is  damaged  for  public  use. 
Twenty-Second  Corp.,  etc.  v.  Oregon  S.  L.  R. 
Co.  23:  860,  103  Pac.  243,  36  Utah,  238. 

185.  The  laving  of  pipe  lines  by  a  gas 
company  in  the  soil  of  lands,  without  the 
consent  of  the  landowner,  or  appropriation 
in  the  manner  provided  by  law,  is  a  taking 
of  the  lands  within  the  meaning  of  the  con- 
stitutional provision  forbidding  the  taking 
or  damaging  of  private  property  for  public 
uses  before  payment  of  just  compensation 
therefor,  even  though  the  taking  is  a  mere 
technical  one,  and  does  not  result  in  mate- 
rial damages.  Lovett  v.  West  Virginia  C. 
Gas  Co.  24:  230,  65  S.  E.  196,  65  W.  Va.  739. 

(Annotated) 
<.«».V[\A.H.J:  S:<- 


EMINENT  DOMAIN,  III.  b,  2. 


1021 


186.  Requiring  a  teleplione  company  own- 
ing a  local  and  long-distance  line,  to  con- 
nect its  long-distance  line  with  the  exchange 
of  a  rival  local  company  without  any  com- 
pensation for  the  long-distance  plant  be- 
yond a  division  of  the  tolls,  is,  where  no 
law  requiring  such  connection  existed  when 
it  secured  its  franchise,  an  unconstitutional 
taking  of  property,  and  not  a  mere  police 
regulation.  Pacific  Teleph.  &  Teleg.  Co.  v. 
Eshleman,  50:  652,  137  Pac.  1119,  166  Cal. 
640.  (Annotated) 

187.  The  use  of  dynamite  by  a  Federal 
officer  in  an  emergency,  in  order  to  enlarge 
an  opening  in  a  levee  along  the  Mississippi 
river  after  the  levee  had  given  way,  if 
wrongful,  cannot  be  held  to  be  the  act  of 
the  United  States,  and  therefore  affords 
no  ground  for  holding  that  the  United 
States  had  thereby  taken  for  public  use 
the  property  of  a  riparian  owner  damaged 
by  such  act.  Hughes  v.  United  States, 
46:  624,  33  Sup.  Ct.  Rep.  1019,  230  U.  S.  24, 
67  L.  ed.  1374. 

188.  The  extension  of  the  limits  of  a 
municipal  corporation  for  6  miles  along  the 
line  of  a  turnpike  road,  and  the  remov. !  by 
the  municipal  authorities  of  the  tollgates 
within  the  limits  as  so  extended,  is  a  taking 
of  property  of  the  turnpike  company  for 
which  compensation  must  be  made.  Belle- 
ville V.  St.  Clair  County  Tump.  Co.  17:  1071, 
84  N.  E.   1049,  234  111.  428.        (Annotated) 

2.  As  to  streets  and  hightvays. 

(See  also    same   heading   in  Digest  L.R.A. 
1-10.) 

189.  The  occupation  of  a  street  by  the 
construction  of  a  permanent  improvement 
at  a  point  88  feet  from  premises  fronting 
thereon,  with  the  result  that  pedestrian 
travel  on  that  side  of  the  street  is  diverted 
in  other  directions,  constitutes  an  inter frv- 
ence  with  the  natural  property  rights  en- 
joyed by  the  owner.  Fitzer  v.  St.  Paul  City 
R.  Co.  18:  268,  117  N.  W.  434,  105  Minn. 
221. 

Railroad  in. 
See  also  infra,  210. 

190.  The  injury  to  the  easements  of  light, 
air,  and  access  of  abutting  property  the 
owner  of  which  does  not  own  the  fee  in  the 
street,  by  the  construction  of  a  commercial 
railway  therein,  is  not,  at  least,  where  there 
will  not  be  a  complete  destruction  of  them, 
a  taking  of  the  property  within  the  mean- 
ing of  a  constitutional  provision  that  com- 
pensation must  be  made  in  case  of  a  taking 
of  property  for  public  use  before  possession 
can  be  taken,  where  the  Constitution  also 
provides  compensation  for  damaging  prop- 
erty, but  does  not  require  it  to  be  made  in 
advance.  McCammon  &  L.  Lumber  Co.  v. 
Trinity  &  B.  V.  R.  Co.  36:  662,  133  S.  W. 
247,  104  Tex.  8. 

191.  The  construction  of  a  commercial 
railroad  on  a  street  the  fee  of  which  is  in 
the  abutting  owner  is  a  taking  within  the 
meaning  of  a  constitutional  provision  re- 
quiring compensation  to  be  made  before 
Digest  1-52  L.R.A.(N.S.) 


possession  taken,  in  case  of  property  taken 
by  right  of  eminent  domain.  McCammon 
&  L.  Lumber  Co.  v.  Trinity  &  B.  V.  R.  Co. 
36:  662,  133  S.  W.  247,  104  Tex.  8. 

(Annotated) 
Elevated  railroad  in. 

192.  Recovery  cannot  be  had  by  an  abut- 
ting owner  because  of  interference  with  the 
light,  air,  or  prospect  of  his  property 
through  an  elevation  of  railroad  ti'acks,  in 
the  absence  of  any  taking  of  his  land  or  de- 
struction of  his  easements,  under  a  statute 
requiring  compensation  to  be  made  for  all 
damage  caused  by  the  taking  of  land  or  by 
the  change  or  discontinuance  of  a  private 
way  or  by  the  taking  of  an  easement.  Davis 
V.  New  England  R.  Co.  20:  1061,  85  N.  E. 
475,  199  Mass.  292.  (Annotated) 
Street  railvray  in. 

As  additional  servitude,  see  infra,  303-309. 

193.  The  mere  fact  that  a  street  railway 
is  located  on  the  side,  rather  than  in  the 
center,  of  the  street,  is  not  sufficient  to  show 
that  the  abutting  owner  is  entitled  to  com- 
pensation under  a  constitutional  provision 
that  private  property  shall  not  be  damaged 
for  public  use  without  compensation.  Wag- 
ner V.  Bristol  Belt  Line  R.  Co.  25:  1278,  62 
S.  E.  391,  108  Va.  594.  (Annotated) 

194.  That  a  vehicle  cannot  stand  between 
a  street  car  track  located  on  the  side  of  the 
street  and  the  curb  while  a  car  is  passing 
does  not  show  a  violation  of  the  rights  of 
the  abutting  owner  under  a  constitutional 
provision  that  private  property  shall  not  be 
damaged  for  public  use  without  compensa- 
tion. Wagner  v.  Bristol  Belt  Line  R.  Co. 
25:  1278,  62  S.  E.  391,  108  Va.  594. 

195.  That  the  location  of  a  street  railway 
in  a  street  will  render  abutting  property 
less  desirable  and  less  comfortable  as  a  resi- 
dence does  not  entitle  its  owner  to  compen- 
sation under  a  constitutional  provision  that 
compensation  must  be  made  in  case  private 
property  is  damaged  for  public  use.  Wag- 
ner V.  Bristol  Belt  Line  R.  Co.  25:  1278,  62 
S.  E.  391,  108  Va.  594. 

196.  An  abutting  property  owner  is  not, 
under  a  Constitution  providing  compensa- 
tion for  property  damaged  for  public  use, 
entitled  to  compensation  because  a  street 
car  track  is  laid  so  close  to  the  curb  and 
cars  are  operated  thereon  so  frequently,  that 
vehicles  cannot  be  stopped  at  the  curb  to  re- 
ceive or  discharge  passengers  or  goods  with- 
out interfering  with  the  street  car  service. 
Harrison  v.  Denver  City  Tramway  Co.  44:, 
1 164,  131  Pac.  409,  54  Colo.  593. 
Interurban  railway  in. 

See  also  infra,  246. 

197.  An  interurban  electric  railway  com- 
pany using  tracks  in  a  city  street  for  street- 
car business  under  a  street-railway  fran- 
chise does  not  take  the  interest  of  abutting 
owners  for  interurban  purposes  until  it 
transforms  the  tracks,  roadbed,  and  appli- 
ances to  interurban  uses;  neither  the  pas- 
sage of  a  statute  authorizing  condemnation, 
nor  the  continued  wrongful  use  for  inter- i 
urban  purposes  of  the  street  railway  tracks j 
thereafter,  being  an  expropriation  of  theirj 
rights.     Brickies  v.  Milwaukee  Light,  H.  &; 


1022 


EMINENT  DOMAIN,  III.  b,  3— c,  1. 


Traction  Co.    14:  644,    114   N.   W.   810,   134 
Wis.  358. 

Vacation  of  street;  obstruction  of  ac- 
cess to. 

See  also  infra,  22G. 

198.  The  vacation  of  a  highway  furnish- 
ing access  to  a  tract  of  timber  hind,  to 
the  mat^erial  injury  of  tlie  property,  is  a 
taking  for  which  the  owner  is  entitled  to 
compensation.  McCann  v.  Clarke  County, 
36:  1 1 15,   127   N.   W.   1011,   149   Iowa,   13. 

(Annotated) 

199.  A  railroad  company  is  not,  under  a 
Constitution  forbidding  the  damaging  of 
property  for  public  use  without  compensa- 
tion, liable  for  the  diminution  in  value  of 
private  property  because  of  inconvenience 
caused  by  the  closing  of  streets  not  abut- 
ting on  the  property,  but  which  aflord  ac- 
cess to  it,  where  communication  between 
the  propertj'  and  the  general  system  of 
highways  still  remains.  Hyde  v.  Minnesota, 
D.  &  P.  R.  Co.  40:  48,  136  N.  W.  92,  29  S. 
D.  220. 

200.  The  construction  of  a  bridge  approach 
in  a  public  street  for  the  purpose  of  abol- 
ishing a  grade  crossing  of  railroad  tracks, 
in  such  a  manner  as  to  cut  off  the  access 
of  an  abutting  owner  from  the  lower  portion 
of  his  buildiing  to  the  street,  and  to  shut 
off  the  light  and  air  therefrom,  is  a  taking 
within  the  meaning  of  a  constitutional  pro- 
vision requiring  compensation  to  be  made 
for  property  taken  for  public  use  Walters 
v.  Baltimore  &  O.  R.  Co.  46:  1128,  88  Atl. 
47,   120  Md.  644. 

201.  The  construction  of  a  bridge  ap- 
proach in  a  public  street  in  such  a  way  as  to 
destroy  the  access  to  abutting  property  and 
impound  snow  and  water  thereon  is  a  taking 
for  which  compensation  must  be  made.  Ran- 
son  v.  Sault  Ste.  Marie,  15:  49,  107  N.  W. 
439,  143  Mich.  661.  (Annotated) 

8.  As     to     water     and     water     rights; 
sewage. 

■    ,|v8ee  also   same   heading   in  Digest   L.R.A. 

)  202.  Forbidding  the  continued  casting  of 
I  raw  sewage  into  a  river  is  not  a  taking  of 
property  for  public  use,  for  which  compen- 
sation must  he  made.  Shelby  v.  Cleveland 
Mill  &  Power  Co.  35:  488,  71" S.  E.  218,  155 
N.   C.   19G. 

203.  The  withdrawal  of  subterranean  wa- 
ter from  under  a  pubfic  street  in  such  :i 
manner  as  tc  cause  the  carrying  away  and 
subsidence  of  abutting  land  will  render  the 
municipality  or  its  licensees  liable  for  such 
subsidence,  under  a  constitution  requiring 
compensation  for  property  damaged  for  pub- 

;  lie  use.    Farnandis  v.  Great  Northern  R.  Co. 
J5:  1086,  84  Pac.  18,  41  Wash.  486. 
Flowing  or  flooding  of  land. 

204.  The  injury  of  abutting  property  by 
flooding  and  washing  by  a  current  deflect- 
ed by  piers  placed  in  a  stream  is  a  taking 
for  which  compensation  must  be  made. 
White  V.  Pennsylvania  R.  Co.  38:  1040,  78 

.Atl.  1035,  229  Pa.  480.  (Annotated) 

Digest  1-52  L.R.A.(N.S.) 


205.  The  building  by  the  Federal  govern- 
ment, when  improving  the  navigation  of  the 
Mississippi  river,  of  a  levee  behind  a  plan- 
tation which  was  thereby  placed  between 
the  old  and  the  new  levee,  is  not  a  taking 
of  property  for  which  comixmsation  must 
be  made.  Hughes  v.  United  Stat<?s,  46:  624, 
33  Sup.  Ct.  Rep.  1019,  230  U.  S.  24,  67 
L.  ed.  1374. 

206.  An  improvement  district  chartered 
by  the  legislature  cannot,  under  a  Cons^^itu- 
tion  forbidding  the  damaging  or  destrifction 
of  property  without  compensation,  erect  a 
levee  along  a  river  bank  so  as  to  throw  the 
flood  water  of  the  river  upon  a  municipal 
pumping  plant  on  the  opposite  shore  to 
such  a  degree  as  to  work  a  practical  destruc- 
tion of  the  plant,  and  deprive  the  municipal- 
ity of  water  for  domestic  purpose.?  and  fire- 
protection.  Ft.  Worth  Improv.  Dist.  No.  1 
V.  Ft.  Worth,  48:  994,  158  S.  W.  164,  — 
lex.    — .  (Annotated) 

4.  Crossing  railroad. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

207.  A  requirement  by  the  state  that 
railroad  companies  whose  lines  intersect 
public  highways  laid  out  after  the  con- 
struction of  a  railroad,  shall,  without  com- 
pensation, construct  and  maintain  such 
safety  devices  as  are  reasonably  necessary 
for  public  safety,  being  referable  to  the  po- 
lice power,  is  not  a  taking  of  private  prop- 
erty for  public  use,  in  violation  of  the  Con- 
stitution. State  ex  rel.  Minneapolis  v.  St. 
Paul,  M.  &  M.  R.  Co.  28:  298,  108  N.  W.  261, 
98  Minn.  380.  (Annotated) 

208.  The  requirement  that  a  railway 
company  construct  a  bridge  over  a  public 
waterway  which  is  laid  across  its  right  of 
way,  after  the  same  has  been  established 
and  used  for  a  number  of  years,  is  not  a 
taking  or  injuring  of  property  within  the 
meaning  of  the  constitutional  prohibition, 
but  rests  on  the  exercise  of  the  reserved  or 
police  power  of  the  state.  Chicago,  M.  & 
St.  P.  R.  Co.  V,  Minneapolis,  51:  236,  133  N. 
W.  169,  115  Minn.  460. 

c.  Right   to    compensation. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Attempt  of  court  to  add  interest  to  amount 
awarded  by  jury  in  eminent  domain 
proceedings,  see  Appeal  and  Ebbob, 
1550;   Teial,  1161. 

See  also  supra,   142,  147,  148. 

1.  Necessity   of   making   compensation. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

What  constitutes  a  taking  or  damaging  for 
which  compensation  must  be  made,  see 
supra,  III.  b. 


EMINENT  DOMAIN,  III.  c,  1. 


1023 


As  to  consequential  injuries  from  taking, 
see  infra,  III.  e. 

As  to  what  constitutes  an  additional  servi- 
tude,  see   infra,   IV. 

What  constitutes  a  taking  for  which  com- 
pensation must  be  made,  see  supra, 
III.  b. 

Compelling  attorney  to  defend  indigent  per- 
son without  compensation  as  an  uncon- 
stitutional taking  of  property,  see  At- 
tokjN'eys,  59. 

Construction  of  constitutional  provision  as 
to,  see  Constitutional  Law,  25,  30. 

Conferring  upon  public  service  commission 
power  to  determine  amount  of  compen- 
sation, see  Constitutional  Law,  128; 
Statutes,  352. 

Taking  of  property  of  corporation  under 
reserved  right  to  repeal  charter,  see 
Constitutional  Law,  361. 

Imposing  upon  abutting  owners  duty  to 
keep  sidewalks  clear  of  snow,  see  Con- 
stitutional Law,  377. 

Forbidding  operation  of  manufacturing  es- 
tablishment near  parks,  see  Constitu- 
tional Law,  419. 

Necessity  of  terminating  restricted  building 
covenants  by  purchase  or  condemna- 
tion, see  Constitutional  Law,  643; 
Covenants  and  Conditions,  114. 

Amount  of  recovery,  see  Damages,  III.  1. 

Nominal  damages  for  taking  fee  of  street 
which  had  been  platted  by  owaer,  see 
Damages,  5. 

On  discontinuing  highway,  see  Highways, 
V.  b,  2." 

Injunction  against  erection  of  levee  by  im- 
provement district  under  statute  re- 
lieving it  from  liability  for  injuries, 
see  Injunction,  179. 

Injunction  against  taking  private  property 
without  compensation,  see  Injunction, 
182-184. 

Joint  liability  to  make  compensation,  see 
Joint  Creditors  and  Debtors,  15. 

See  also  supra,  119. 

I 

209.  A  municipal  corporation  which  un- 
dertakes under  statutory  permission  to  con- 
struct a  subway  for  rapid  transit  under  its 
streets  does  so  in  its  proprietary,  rather 
than  its  governmental,  capacity,  and  is  lia- 
ble to  pay  for  any  private  property  taken 
for  such  purpose.  Ee  Board  of  Rapid  Tran- 
sit R.  Comrs.  36:  647,  90  N.  E.  456,  197 
N.  Y.  81. 

210.  Although  by  constitutional  amend- 
ment the  provisions  of  the  Constitution 
have  been  superseded  with  respect  to  pub- 
lic service  corporations,  and  power  over 
them  conferred  upon  the  legislature,  the 
constitutional  provision  requiring  compen- 
sation to  be  made  in  advance  for  property 
taken  from  such  corporation  by  right  of 
eminent  domain  will  continue  applicable  un- 
til expressly  changed  by  the  legislature. 
Pacific  Teleph.  &  Teleg.  Co.  v.  Eshleman, 
50:  652,   137   Pac.   1119,  1G6   Cal,  640. 

211.  The  legislature  cannot  authorize  a 
telephone  company  to  construct  its  line 
along  a  railroad  right  of  way,  unless  it 
makes  provision  for  just  compensation  to 
Digest  1-52  L.R.A.(N.S.) 


the  railroad  company.  Canadian  P.  R.  Co. 
V.  Moosehead  Teleph.  Co.  29:  703,  76  Atl. 
885,   106   Me.   363.  (Annotated) 

212.  The  constitutionality  of  a  statute 
permitting  the  railroad  commission  to  au- 
thorize the  construction  of  a  telephone  line 
along  a  railroad  right  of  way,  which  makes 
no  provision  for  compensation,  is  not  saved 
by  a  section  permitting  the  telephone  com- 
pany to  condemn  a  'right  of  way,  where  it 
invokes  the  assistance  of  the  commission 
and  makes  no  attempt  to  condemn  the 
right.  Canadian  P.  R.  Co.  v.  Moosehead 
Teleph.  Co.  29:  703,  76  Atl.  885,  106  Me.  363. 

213.  A  statute  which  provides  for  the 
construction  of  fire  lines  along  the  right 
of  way  of  railroad  companies  by  appropri- 
ating a  strip  of  land  in  such  a  way  as  to 
deprive  the  owner  of  all  beneficial  use  there- 
of, and  which  makes  no  provision  for  com- 
pensation therefor,  provides  for  a  taking 
of  land  which  cannot  be  justified  as  a 
proper  exercise  of  the  police  power,  and, 
no  provision  for  compensation  being  made, 
is  unconstitutional.  Vreeland  v.  Forest 
Park  Reservation  Com.  (N.  J.  Err.  &  App.) 
46:  1062,  87  Atl.  435,  82  N.  J.  Eq.  349. 

214.  That  water  tanks  are  necessary  to 
the  operation  of  a  railway,  and  are  used 
with  ordinary  care,  does  not  prevent  liability 
on  the  part  of  the  railroad  company  to  the 
owner  of  neighboring  property  injured  by 
their  use,  under  a  constitutional  provision 
that  private  property  shall  not  be  damaged 
for  public  use  without  compensation.  Texas 
&  P.  R.  Co.  v.  Edrington,  9:  988,  101  S.  W. 
441,  100  Tex.  496. 

215.  The  police  power  will  not  authorize 
a  municipal  corporation  to  extend  its  limits 
6  miles  along  a  toll  road  and  remove  the 
gates  without  making  compensation  to  the 
owner,  where  nothing  in  the  increase  of 
population,  topography  of  the  ground,  nor 
any  other  reason  in  connection  with  the 
health,  safety,  or  comfort  of  the  community, 
is  shown  to  require  it.  Belleville  v.  St. 
Clair  County  Turnp.  Co.  17:  1071,  84  N.  E. 
1049,  234  III.  428. 

216.  The  turning  of  sewage  by  a  munici- 
pal corporation  into  a  stream,  to  the  injury 
of  lower  riparian  property,  is  within  a  con- 
stitutional provision  requiring  compensa- 
tion for  damaging  property  for  public  use. 
McLaughlin  v.  Hope,  47:  137,  155  S.  W.  910, 
107    Ark.    442.  (Annotated) 

217.  The  obstruction  of  the  flow  of  sur- 
face water  upon  abutting  property  to  its 
injury,  by  the  construction  of  an  alley 
without  drainage  facilities,  entitles  the 
property  owner  to  compensation,  under  a 
constitutional  provision  allowing  compen- 
sation for  property  injured  or  destroyed  by 
public  improvements.  Ewing  v.  Louisville, 
31:  612,  131  S.  W.  1016,  140  Ky.  726. 

218.  A  levee  district  is  not  liable  even 
under  a  Constitution  which  provides  that 
private  property  shall  not  be  damaged  for 
public  use  without  compensation,  for  run- 
ning a  levee  across  sloughs,  swales,  and 
other  low  places  which  help  to  absorb  the 
flood  waters  of  a  river,  and  leaving  certain 
riparian   lands   between   the   levee   and   the 


1024 


EMINENT  DOMAIN,  III.  c,  1. 


river,  the  effect  of  which  is  to  raise  the 
height  of  tlie  flood  water  over  such  hind 
to  its  injury.  McCov  v.  Board  of  Direc- 
tors, 29:  396,   129  S.  W.   1097,  95  Ark.  345. 

219.  ihe  duty  to  compensate  a  railway 
company  for  structural  changes  made  nec- 
essary by  the  condemning  by  a  municipality 
of  a  right  of  way  for  a  street  across  its 
tracks  is  not  imposed  upon  the  municipf^lity 
by  a  constitutional  provision  that  private 
property  shall  not  be  taken  or  damaged  for 
public  use  without  just  compensation. 
Grafton  v.  St.  Paul,  M.  &  M.  R.'  Co.  22:  i, 
113  N.  W.  598,  16  N.  D.  313. 

220.  A  municipal  corporation  is  not  em- 
powered to  forbid  the  maintenance  of  bill- 
boards within  its  limits  merely  because 
their  appearance  may  be  offensive  to  per- 
sons of  refined  taste,  where  the  Constitu- 
tion forbids  the  taking  or  damaging  of 
private  property  for  public  use  without  com- 
pensation. Varney  &  Green  v.  Williams, 
21:  741,  100  Pac.  807,  155  Cal.  318. 

221.  A  statute  requiring  the  employment 
of  one  to  secure  a  purchaser  of  real  estate 
to  be  in  writing  is  not  in  conflict  with  a 
constitutional  provision  that  no  person's 
property  or  particular  services  shall  be 
taken  without  just  compensation.  Selvage 
V.  Talbott,  33:973»  95  N.  E.  114,  175  Ind. 
648. 

222.  Legislative  regulation  of  gas  rates  is 
invalid,  where  such  rates  are  plainly  un- 
reasonable to  the  extent  that  their  enforce- 
ment will  be  equivalent  to  the  taking  of 
property  for  public  use  without  such  com- 
pensation as,  under  the  circumstances,  is 
jdst,  both  to  the  owner  and  the  public. 
There  must  be  a  fair  return  upon  the  rea- 
sonable value  of  the  proporty  a*^^  the  time 
it  is  being  used  for  the  public.  Willcox  v. 
Consolidated  Gas  Co.  48:  1134,  29  Sup.  Ct. 
Rep.  192,  212  U.  S.  19,  53  L.  ed.  382. 

223.  The  imposition  upon  abutting  prop- 
erty owners  of  the  duty  to  keep  sidewalks 
clear  of  snow  does  not  violate  a  constitu- 
tional provision  that  the  burdens  of  state 
ought  to  be  fairly  distributed,  and  that  pri- 
vate property  shall  not  be  taken  for  public 
use  without  compensation.  State,  Egan  v. 
McCrillis,  9:  635,  66  Atl.  301,  28  R.  I.  165. 

224.  Subjecting,  under  penalty,  all  ani- 
mals and  implements  suitable  for  road  work 
in  the  county,  to  that  duty  a  certain  number 
of  days  each  year,  with  an  option  to  pay 
money  in  lieu  of  furnishing  the  stock  or 
implements,  violates  a  constitutional  provi- 
sion forbidding  the  taking  or  applying  to 
public  use  of  private  property  without  just 
compensation.  Toone  v.  State,  42:  1045,  59 
So.  665,  178  Ala.  70.  (Annotated) 
For  injury  to  business. 

See  Damages,  555,  556. 

Taking  riglits  of  abutting   oiirner. 

What  constitutes  a  taking,  see  supra,  III. 
b,  2. 

Injunction  against  taking  without  compen- 
sation, see  Injunction,  184. 

225.  When  a  private  right  of  way  is  en- 
larged into  a  public  road  by  the  joint  action 
of    the    owner    of    the    fee    and    the    public  j 
autliorities,  the  easement  or  right  of  way  is 
Digest   1-52  L.R.A.(N.S.) 


neither  injured  nor  destroyed,  and  no  right 
to  conipen.sation  or  damages  on  account 
thereof  accrues  to  its  owner.  Clayton  v. 
Gilmer  County  Court,  2:  598,  52  S.  E.  103, 
58  W.  Va.  253.  (Annotated) 

226.  A  county  is  within  a  constitutional 
provision  requiring  municipal  and  other  cor- 
porations invested  with  the  privilege  of 
taking  property  for  public  use  to  make  just 
compensation  for  property  injured  by  a 
public  work,  and  therefore  is  bound  to 
make  compensation  for  injury  to  abutting 
property  by  changing  the  grade  of  a  high- 
way; and  it  is  immaterial  that  it  does  not 
receive  the  right  to  take  property  until 
after  the  adoption  of  the  Constitution. 
Dallas  County  v.  Dillard,  18:  884,  47  So. 
135,  156  Ala.  354.  (Annotated) 

227.  The  provisions  of  U.  S.  Rev.  Stat. 
§§^5263-5268  (U.  S.  Comp.  Stat.  1901,  pp. 
3579-3581),  authorizing  the  construction  of 
telegraph  lines  along  "post  roads"  upon 
compliance  with  certain  conditions,  do  not 
affect  the  right  of  an  abutting  owner  to 
compensation  for  the  burden  imposed  upon 
the  fee  by  the  erection  of  a  line  upon  a 
rural  highway  which  is  a  post  road.  Tri- 
State  Teleg.  &  Teleph.  Co.  v.  Cosgriff,  26: 
1 171,  124  N.  W.  75,  19  N.  D.  771. 

228.  The  construction  of  a  tunnel  and  its 
approaches  in  a  street  upon  which  com- 
plainant's property  abuts,  the  result  of 
which  4S  that  pedestrian  travel  on  that  side 
of  the  street  is  diverted  in  other  directions 
by  reason  of  the  fact  that  a  passageway 
is  filled,  leaving  no  street  between  the  cul- 
de-sac  thus  formed  and  the  lot,  while  there 
is  a  street  between  the  lot  and  other  prop- 
erty, constitutes  special  damages  not  suf- 
fered by  such  other  property  owners.  Fit- 
zer  V.  St.  Paul  City  R.  Co.  18:  268,  117  N. 
W.  434,  105  Minn.  221. 

229.  The  owner  of  lots  fronting  on  a 
street  vacated  by  the  city  council  from  the 
line  of  the  lots  to  the  right  of  way  and 
depot  grounds  of  a  railway  company,  thus 
cutting  off  the  lot  owner's  right  of  ingress 
and  egress  from  that  direction,  and  leaving 
his  property  fronting  on  a  cul-de-sac,  suf- 
fers an  injury  special  and  peculiar  to  his 
property  not  common  to  the  public  at 
large,  and  is  entitled  to  compensation  un- 
der the  provisions  of  the  Minnesota  Con- 
stitution which  forbid  the  taking  or  dam- 
aging of  private  property  for  a  public  use 
without  compensation.  Vanderburgh  v. 
Minneapolis,  6:  741,  108  N.  W.  480,  98  Minn. 
329. 

230.  Laying  a  street  railway  track  under 
authority  of  the  municipal  corporation  so 
near  a  sidewalk  the  title  to  which  is  in  the 
municipality,  at  a  point  where  streets  inter- 
sect at  an  acute  angle,  that  passing  cars 
will  overhang  it  a  few  inches,  gives  no  right 
of  action  to  the  abutting  owner  where  hia 
right  of  ingress  to  and  egress  from  his 
property  is  not  impaired.  Hester  v.  Dur- 
ham Traction  Co.  i:  981,  50  S.  E.  711,  138 
N.  C.  288.  (Annotated) 

231.  Under  a  statute  providing  for  the 
abolition  of  a  grade  railroad  crossing,  which 
adopts  for  the  assessment  of  damages  the 


EMINENT  DOMAIN,  III.  c,  1. 


1025 


provisions  of  a  statute  authorizing  a  recov- 
ery of  all  damages  which  may  be  sustained 
by  any  person  in  his  property  by  the  alter- 
ation of  the  grade  of  a  public  way,  a  land- 
owner is  entitled  to  damages  for  the  con- 
struction of  a  bridge  approach  on  an  em- 
bankment from  8  to  15  feet  high  in  front  of 
his  property,  and  only  40  feet  away,  al- 
though none  of  his  property  is  taken  there- 
for. Hvde  V.  Fall  River,  2:  269,  75  N.  E. 
953,   189  Mass.  439. 

232.  A  railroad  company  is.  under  a  con- 
stitutional provision  requiring  payment  of 
damages  for  property  injured  for  public  use, 
liable  for  injury  to  property  abutting  on 
the  street,  by  the  construction  of  a  via- 
duct, under  authority  of  the  municipality, 
to  carry  a  street  over  its  tracks  which  in- 
tersect it,  if  the  work  is  done  for  its  bene- 
fit, to  enable  it  to  lay  its  tracks  through 
the  municipality.  Shrader  v.  Cleveland,  C. 
C.  &  St.  L.  R.  Co.  26:  226,  89  N.  E.  997,  242 
111.  227.  (Annotated) 
Taking  riparian  rights. 

See  also  Constitutional  Law,  395;   Stat- 
ute's, 62. 

233.  The  legislature  cannot  declare  navi- 
gable a  stream  which  is  not  so  in  fact, 
without  making  compensation  to  the  ri 
parian  owner,  where  the  Constitution  pro- 
vides that  private  propeVty  shall  not  be 
applied  to  public  use  without  just  com- 
pensation being  made.  Miller  v.  State,  35: 
407,  137  S.  W.  760,  124  Tenn.  293. 

234.  The  legislature  cannot  give  a  public 
right  of  fishery  in  a  nontidal,  fresh-water 
stream  flowing  over  private  property  where 
the  Constitution  prohibits  the  taking  of  pri- 
vate property  for  public  use  without  com- 
pensation. Hartman  v.  Tresise,  4:  872,  84 
Pac.  685,  36  Colo.   146. 

235.  The  legislature  cannot,  without  com- 
pensation, create  a  public  right  of  way  along 
the  banks  and  beds  of  streams  to  enable  the 
public  to  enjoy  a  right  of  fishery,  even  by 
pi'oviding  an  action  for  any  damage  done  to 
property  along  the  bank,  where  the  Consti- 
tution prohibits  the  taking  of  private  prop- 
erty for  public  use  without  compensation. 
Hartman  v.  Tresise,  4:  872,  84  Pac.  685, 
36  Colo.  146.  (Annotated) 

236.  The  owner  of  the  bed  and  banks  of 
a  stream  is  entitled  to  compensation  when 
the  water  is  thrown  back  in  the  bed  of 
the  stream  so  as  to  increase,  for  a  public 
use,  the  depth  on  his  land.  Rankin  v.  Har- 
risonburg, "3:  919,  52  S.  E.  555,  104  Va.  524. 

237.  A  riparian  owner  cannot  be  deprived 
of  his  right  to  the  flow  of  the  stream  with- 
out compensation,  because  its  use  by  others 
will  be  more  beneficial  to  the  state.  Miller 
&  Lux  V.  Madera  Canal  &  Irrig.  Co.  22:  391, 
99   Pac.    502,    155   Cal.   59. 

238.  The  legislature  cannot  authorize  a 
stranger  to  construct  a  dam  across  a  navi- 
gable stream  without  making  compensation 
to  the  riparian  ownei  for  the  use  of  the 
bank  against  which  the  dam  rests.  State 
ex  rel.  Wausau  Street  R.  Co.  v.  Bancroft, 
38:  526,  134  N.  W,  330,  148  Wis.  124. 

239.  A  river  improvement  company  can- 
not be  authorized  by  the  legislature  to  con- 
Digest  1-52  Ii.R.A.(N.S.) 


struct  splash  dams  for  the  purpose  of  float- 
ing logs  on  the  stream,  the  operation  of 
which  will  hold  back  the  current  of  the  riv- 
er for  several  hours  several  times  each  week, 
so  as  to  obstruct  the  operation  by  a  ripa- 
rian owner  of  his  power  plant,  without 
making  compensation  to  him  for  the  ripa- 
rian right  thus  interfered  with.  Kalaraa 
Electric  Light  &  P.  Co.  v.  Kalama  Driving 
Co.  22:  641,  94  Pac.  469,  48  Wash.  612. 

(Annotated) 

240.  Before  exercising  the  power  con- 
ferred by  its  charter  to  construct  splash 
dams  and  pond  the  water  of  a  stream  to 
aid  in  floating  logs  thereon,  to  the  injury 
of  the  rights  of  riparian  owners  along  th« 
stream,  a  river  improvement  company  must 
make  compensation  for  the  right  so  in- 
jured. Kalama  Electric  Light  &  P.  Co.  v. 
kalama  Driving  Co.  22:  641,  94  Pac.  469, 
48  Wash.  612. 

241.  An  amendment  to  a  statute  provid- 
ing for  removal  of  milldams  in  the  course 
of  improving  a  living  stream  of  water,  that, 
if  the  mill  has  become  useless  or  has  been 
destroyed  and  has  so  remained  for  a  period 
of  five  years  without  attempt  to  repair  or 
rebuild  it,  it  shall  be  deemed  abandoned, 
and  the  commissioners  may,  without  bar- 
gain or  compensation,  cause  such  milldara 
to  be  removed, — is  an  attempt  to  authorize 
the  taking  of  private  property  for  public 
benefit  without  compensation  and  therefore 
void.  Kiser  v.  Board  of  County  Comrs. 
39:  1029,  97  N.  E.  52,  85  Ohio  St.  129. 

242.  A  corporation  seeking,  by  right  of 
eminent  domain,  the  right  to  erect  a  dam 
in  a  stream  which  will  flood  a  rapid  which 
might  be  converted  into  water  power,  must 
make  compensation  for  the  value  of  the  • 
power,  to  be  distributed  among  the  owners, 
of  the  several  portions  of  the  rapid,  al- 
though the  entire  fall  of  the  stream  is  so 
apportioned  among  the  owners  that  all 
would  have  to  unite  to  make  the  power 
available.  Rankin  v.  Harrisonburg,  3:  919, 
52  S.  E.  565,  104  Va.  524. 

243.  Federal  and  state  authority  to  a 
railroad  company  to  construct  a  draw- 
bridge to  carry  its  tracks  over  tidal  naviga- 
ble water  does  not  authorize  it  to  interfere, 
without  making  compensation  therefor, 
with  the  use  by  an  adjoining  riparian  own- 
er of  a  wharf  which  he  has  constructed  out 
to  the  line  of  navigable  water,  after  having 
secured  from  the  state  a  grant  of  the  tide 
land  necessary  to  enable  him  to  do  so,  where 
the  wharf  interferes  with  no  harlxjr  regu- 
lations. Northern  P.  R.  Co.  v.  S.  E.  Slade 
Lumber  Co.  34:  423,  112  Pac.  240,  61  Wash. 
195.  (Annotated) 

244.  A  drainage  district  which  constructs 
a  levee  along  a  river  and  from  the  river  to 
the  highlands,  in  such  a  way  as  to  obstruct 
the  natural  flow  of  the  flood  water  of  tfte 
river  and  cast  it  back  on  property  farther 
up  the  stream,  is  liable  for  the  injury  there- 
by caused,  where  the  Constitution  provides 
that  private  property  shall  not  be  taken 
or  damaged  for  public  use  without  compen- 


66 


1026 


EMINENT  DOMAIN,  III.  c,  2,  d. 


sation.  Bradbury  v.  Vandalia  Levee  & 
Drainage  Dist.  19:  ggi,  86  N.  E.  163,  236  111. 
36.  (Annotated) 

For  land  taken,  by  highway. 

245.  Additional  compensation  to  the  abut- 
ting owner  is  not  required,  in  case  a  street 
is  laid  out  to  high-water  mark  on  tlie  sca- 
sliore,  to  entitle  the  public  to  follow  the 
shore  as  it  recedes  by  accretions,  although 
the  fee  of  the  accretions  vests  in  him.  State 
V.  Yates,  22:  592,  71  Atl.  1018,  104  Me.  360. 

2.  To  tvhom  the  cotnpen.sation  must  he 
paM. 

(See  also  same  heading  in  Digest  L.R.A. 
I-IO.) 

Effect  of  deed  of  land  to  convey  right  to 
damages  for  right  of  way  appropriated, 
see  Deeds,  47. 

Instructions  as  to,  see  Tkial,  99G. 

246.  The  one  owning  the  abutting  prop- 
erty at  the  time  an  interurban  electric  rail- 
way company  begins  to  make  wrongful  use 
of  street-car  tracks  in  the  street,  and  at 
the  time  of  the  passage  of  a  statute  author- 
izing condemnation  of  a  right  to  make  such 
use,  but  who  sells  his  interest  prior  to  the 
institution  of  condemnation  proceedings,  is 
not  entitled  to  the  damages  awarded  in  such 
proceedings;  but  they  belong  to  the  one 
owning  the  property  when  the  proceedings 
were  instituted.  Brickies  v.  Milwaukee 
Light,  H.  &  Traction  Co.  14:  644,  114  N.  W. 
810,   134   Wis.  358. 

247.  A  mere  grantee  of  real  estate  after 
the  appropriation  of  a  right  of  way  across 
it   has   no   right   to   file    exceptions    to   the 

*amount  awarded  as  damages  therefor.  Ft. 
Wayne  &  S.  W.  Traction  Co.  v.  Ft.  Wayne 
&  W.  R.  Co.  16:  537,  83  N.  E.  665,  170  Ind 
49. 

248.  The  owner  of  land  condemned  for 
public  use  at  the  time  the  instrument  of 
appropriation  is  filed,  and  not  one  taking 
a  conveyance  thereof  prior  to  publication  of 
notice  for  assessment  of  the  damages,  is  en- 
titled to  the  compensation,  under  a  statute 
providing  for  the  appropriation  of  land 
needed  for  public  use  which  declares  that 
the  corporation  shall  deposit  the  description 
of  the  rights  and  interests  intended  to  be 
appropriated,  and  such  land  shall  belong  to 
such  corporation  by  making  or  tendering 
payment,  although  provision  is  also  made 
for  assessing  damages  in  case  of  disagree- 
ment of  the  parties.  Ft.  Wayne  &  S.  W. 
Traction  Co.  v.  Ft.  Wayne  &  W.  R.  Co. 
16:  537,  83  N.  E.  665,  170  Ind.  49. 

( Annotated ) 

Tenants. 

Right  of  tenant  to  value  of  trade  fixtures 
attached  to  property  taken  for  public 
use,  see  Landlord  and  Tenant,  124. 

249.  The  basis  adopted,  in  a  proceeding 
to  secure  property  for  public  use  by  right 
of  eminent  domain,  for  ascertaining  the 
value  of  property  to  be  taken,  must  be  pre- 
served in  dividing  the  fund  so  produced  be- 
tween the  property  owner  and  a  tenant;  in 
Digest  1-52  Ii.R.A.(N.S.) 


possession  for  an  unexpired  term.  Re  Im- 
provement of  Water  Front,  18:  423,  84  N. 
E.   1105,   192   N.  Y.  295. 

250.  A  lessee  of  a  water  power  who 
places  a  mill  on  the  stream  with  intent  to 
utilize  the  power,  and  is  compelled  to  aban- 
don it  because  of  the  pollution  of  the 
stream,  by  the  discharge  therein  of  the 
sewage  of  a  city,  is  entitled  to  damages  to 
the  extent  of  his  leasehold  interest  against 
the  municipality  guilty  of  the  pollution. 
McLaughlin  v.  Hope,  47:  137,  155  S.  W. 
010,  107   Ark.  442. 

Reversioners. 

251.  A  grantor  of  property  to  a  religious 
society  in  fee,  upon  condition  that  it  be 
occupied  by  a  house  for  public  worsliip, 
upon  failure  to  do  which  the  property  is  to 
revert  to  the  gi-antor,  is  not  entitled  to 
damages  in  case  the  property  is  taken  for 
public  use  by  eminent  domain  under  a  stat- 
ute by  which  only  the  right  of  use  may  be 
taken,  whether  the  conveyance  is  regarded 
as  in  trust  for  the  grantor,  as  a  determina- 
ble fee,  or  as  a  grant  upon  condition,  with 
right  to  re-enter  for  condition  broken,  since 
the  religious  society  being  entitled  to  the 
use,  and  the  use  being  all  that  is  taken,  it 
alone  is  entitled  to  the  compensation.  Ly- 
ford  V.  Laconia,  22:  1062,  72  Atl.  1085,  75 
N.    H.    220.  (Annotated) 

d.  Payment  or  security;  taking  posses- 
sion of  property. 

(See  also    same   heading   in   Digest   L.R.A 
1-10.) 

252.  Payment  of  the  damages  is  not  a  pre- 
requisite to  the  entry  by  a  municipal  cor- 
poration upon  property  which  it  has  con- 
demned for  highway  purposes.  State  v. 
Jones,  2:  313,  52  S.  E.  240,  139  N.  C.  613. 

253.  Refusal  to  recognize  proceedings  un- 
der a  municipal  resolution  for  the  con- 
demnation of  land  for  a  highway,  and  ap- 
pealing therefrom  to  the  courts,  will  not  de- 
lay the  opening  of  the  street  until  the  ap- 
peal is  determined.  State  v.  Jones,  2:  313, 
52  S.  E.  240,  139  N.  C.  613.  (Annotated) 

254.  An  appeal  from  the  apjjraisal  of 
damages  does  not  postpone  the  right  of  a 
municipal  corporation  to  enter  upon  land 
condemned  for  highway  purposes,  under  a 
statute  providing  that  the  report  of  the  ap- 
praisers shall  lie  in  the  mayor's  office  for 
ten  days  for  inspection,  and,  if  not  appealed 
from,  "the  land  shall  stand  condemned." 
State  V.  Jones,  2:  313,  52  S.  E.  240,  139  N. 
C.  613.  (Annotated) 

255.  On  the  vacation  of  a  street  by  ac- 
tion of  a  city  council,  one  from  whom  no 
property  is  actually  taken,  but  who  sus- 
tains consequential  damages  in  that  his 
property  is  left  fronting  on  a  cul-de-sac, 
whereby  his  right  of  ingress  and  egress  is 
cut  off  in  that  direction,  is  not  entitled  to 
have  his  damages  ascertained  and  paid  as 
a  condition  precedent  to  the  right  of  the 
city  to  vacate  the  street;  but  his  constitu- 
tional rights  are  fully  protected  by  the  lia- 
bility   of    the    municipality    to    respond    in 


EMINENT  DOMAIN,  III.  e,  1,  2. 


1027 


damages.       Vanderburgh     v.     Minneapolis, 
6:  741,  108  N.  W.  480,  98  Minn.  329. 

256.  A  statute  authorizing  a  corporation 
seeking  to  take  land  under  eminent  domain 
proceedings  to  take  possession  of  the  land 
upon  the  Tiling  of  a  bond  with  good  and  suf- 
ficient securities  approved  by  the  court,  is 
not  a  violation  of  a  constitutional  prohi- 
bition against  taking  private  property  with- 
out just  compensation  paid  or  secured  to 
be  paid.  Carnegie  Natural  Gas  Co.  v.  Swi- 
ger,  46:  1073,  79  S.  E.  3,  72  W.  Va.  557. 
Right     to     take     possession     \ritliout 

payment. 
Constitutionality  of  statute  as  to,  see  CoN- 
STiTUTiONAii  Law,  553. 

c.  Consequential  injuries. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  what  constitutes  a  taking,  see  supra, 
III.  b. 

As  to  necessity  of  making  compensation 
generally,  see  supra.  III.  c,  1. 

As  to  what  constitutes  an  additional  servi- 
tude, see  infra,  IV. 

As  element  of  damages,  see  Damages,  III. 
1,  3. 

Right  of  railroad  company  to  damages  for 
consequential  injuries  resulting  from 
laying  out  of  highway  across  its 
tracks,  see  Raitjioads,  40. 

Instruction  as  to  right  to  recover  for  con- 
sequential injuries,  see  Tbial,  995. 

257.  A  statute  requiring  compensation  to 
be  made  for  injuries  to  adjacent  property 
not  taken  by  corporations  exercising  the 
right  of  eminent  domain  is  within  tlve  le- 
gitimate scope  of  legislative  power,  where 
the  Constitution  forbids  the  legislature  to 
enact  any  law  whereby  private  property 
shall  be  taken  or  damaged  for  public  pur- 
poses without  just  compensation.  Tide- 
water R.  Co.  V.  Shartzer,  17:  1053,  59  S.  E. 
407,   107   Va.  562. 

258.  Loss  through  diminution  in  the  value 
of  property  for  residence  purposes  because 
of  the  location  of  a  cemetery  near  it  is  not 
within  the  meaning  of  a  constitutional  pro- 
vision requiring  compensation  in  case  prop- 
erty is  damaged  for  public  use.  Lambert 
V.  Norfolk,  17:  io6i,  61  S.  E.  776,  108  Va. 
259. 

259.  The  owner  of  a  farm,  a  part  of  whicli 
is  permanently  flooded  by  a  government 
dam,  must  be  compensated,  in  addition  to 
the  value  of  the  land  taken,  for  the  lessened 
value  of  the  farm,  caused  by  the  consequent 
cutting  off  of  a  private  way  across  the 
lands  of  others,  which  is  the  only  practica- 
ble outlet  from  the  farm  to  the  county 
road.  United  States  v.  Welch,  28:  385,  30 
Sup.  Ct.  Rep.  527,  217  U.  S.  333,  54  L.  ed. 
787.  (Annotated) 

260.  Just  compensation  to  the  owner  of  a 
farm,  a  part  of  which  is  taken  by  the 
United  States  by  permanently  flooding  it  in 
Digest  1-52  L.R.A.(N.S.)' 


improving  navigation,  as  an  incident  to 
which  a  public  highway  crossing  the  flooded 
land  is  also  flooded,  demands  an  award  of 
the  damages  to  that  part  of  the  farm  not 
taken,  by  reason  of  the  destruction  of  th« 
easement  of  access  to  the  turnpike  by  way 
of  the  highway  thus  destroyed.  United 
States  V.  Grizzard,  31:  1135,  31  Sup.  Ct. 
Rep.  162,  219  U.  S.  180,  55  L.  ed.  165. 
Injury  to  business. 
See  Damages,  555,  556. 

2.  By    construction    and    operation    of 
railroad. 

(See  also  same  heading  in  Digest  L.R.A 
1-10.) 

As  to  railroad  in  street,  see  infra,  274,  275. 

Statute  making  railroad  liable  for  conse- 
quential injuries,  see  Constitutionai, 
Law,  400. 

Measure  of  damages  for,  see  Damages,  543. 
545-540,  554,  556. 

Setting  oft"  special  benefits,  see  Damages. 
580-589.       * 

See  also  Nuisances,  7,  30-32,  61,  62,  76, 
92,  93,  97,  114-118,  123,  127,  132,  187, 
196,  197. 

261.  A  property  owner  is  not  entitled  to 
damages  for  every  inconvenience  or  discom- 
fort caused  by  the  operation  of  a  railroad 
near  his  property,  even  though  it  may  be 
material  or  considerable;  but  he  can  recover 
only  where  the  usable  and  rental  or  per- 
manent value  of  his  property  is  injured. 
Louisville  &  N.  Terminal  Co.  v.  Lellyett,  i: 
49,  85  S.  W.  881,  114  Tenn.  368. 

262.  Discomfort  to  the  owner  of  a  resi- 
dence located  near  a  railroad  track,  which 
is  caused  solely  by  the  growth  and  increase 
of  travel  and  traffic,  gives  him  no  right  of 
action  against  the  company.  Louisville  & 
N.  Terminal  Co.  v.  Lellyett,  i:  49i  85  S.  W. 
881,  114  Tenn.  368. 

263.  The  destruction  by  the  elevation  of 
railroad  tracks,  of  a  switch  connecting 
neighboring  property  with  the  railroad, 
which  the  railroad  company  is  under  no 
obligation,  contractual  or  otherwise,  to 
maintain,  is  not  within  the  operation  of  a 
constitutional  provision  requiring  compen- 
sation for  property  damaged  by  public  use. 
Otis  Elevator  Co.  v.  Chicago,  52:  192,  105 
N.  E.  338,  263  111.  419.  (Annotated) 
Obstructing  access  to  street. 
Obstructing  access  by  changing  street  grade, 

see  infra,  283. 

264.  Compensation  must  be  made  for 
diminution  in  value  of  business  property 
by  the  raising  of  the  grade  of  a  railroad 
track  across  the  street,  which,  by  tlie  com- 
plete obstrviction  of  travel  pending  the  work, 
which  i.s  unduly  prolonged,  and  by  causing 
permanent  difficulty  of  access,  diverts  cus- 
tomers from  the  property,  where  the  Con- 
stitution requires  compensation  to  be  made 
for  property  damaged  for  public  use,  al- 
though the  obstru(tion  is  not  within  the 
block  where  the  injured  property  is  located. 


1028 


EMINENT  DOMAIN,  III.  e,  3,  4. 


Powell  V.  Houston  &  T.  C.  R.  Co.  46:  615, 
135  S.  W.  1153,  104  Tex.  219.  (Annotated) 
Noise,  smoke,  etc. 

See  also  infra,  271-273;  Nuisances,  32,  93, 
123,  187,  195. 

265.  The  noise  from  the  operation  of 
trains  may  be  considered  as  an  element  of 
damages  for  taking  a  portion  of  the  prop- 
erty of  a  college  for  railroad  purposes, 
where  it  would  constitute  a  private  nuis- 
ance to  the  college,  and  depreciate  the  value 
of  the  remaining  property  for  the  use  to 
which  it  had  been  appropriated.  Idaho  & 
W.  R.  Co.  V.  Columbia  Conference,  38:  497, 
119  Pac.  60,  20  Idaho,  568.         (Annotated) 

266.  A  railroad  company  is  liable  for  a 
private  nuisance  imposed  upon  an  adjacent 
landowner  by  a  switchyard  located  chielly 
for  the  handling  of  grain  shipments,  al- 
though the  location  of  the  facility  is  prop- 
er and  the  operation  thereof  duly  careful, 
under  a  Constitution  providing  that  com- 
pensation must  be  paid  for  damaging  or 
destroying  private  property  for  public  use. 
Matthias  v.  Minneapolis,  St.  P.  &  S.  Ste. 
M.  R.  Co.  51:  1017,  146  N.  W.  353,  125  Minn. 
224. 

267.  A  railroad  company  acting  under  the 
power  of  eminent  domain  is  not,  although 
the  Constitution  forbids  damaging  prop- 
erty for  public  use  without  compensation, 
liable  for  diminution  in  value  of  property 
near  which  it  locates  its  tracks  and  depot 
grounds,  because  of  the  smoke,  dust,  noise, 
and  trembling  of  the  earth  due  to  the  prop- 
er management  of  the  road.  Hyde  v.  Minn- 
esota, D.  &  P.  R.  Co.  40:  48,  136  N.  W.  92, 
29  S.  D.  220.  (Annotated) 

268.  Damages  for  diminution  in  the  mar- 
ket value  of  property,  not  taken,  by  smoke, 
noise,  dust,  and  cinders  arising  from  the 
proper,  ordinary,  and  lawful  operation  of 
a  railroad  seeking  a  right  of  way,  may  be 
allowed  the  owner  under  provisions  of  a 
Constitution  that  the  legislature  shall  not 
enact  any  law  whereby  private  property 
shall  be  taken  or  damaged  for  public  pur- 
poses without  just  compensation,  and  of  a 
statute  that  damages  shall  be  awarded 
which  result  from  injuries  to  the  property 
of  any  person  from  the  construction  and  op- 
eration of  the  works.  Tidewater  R.  Co.  v. 
Shartzer,  17:  1053,  59  S.  E.  407,  107  Va. 
562.  (Annotated) 

3.  As  to  water  or  water  rights ;  sewage. 

(See  also   same  heading   in  Digest  L.R.A. 
1-10.) 

269.  The  damages  awarded  for  condem- 
nation of  a  right  of  way  for  railway  pur- 
poses include  compensation  for  injury  to 
wells  and  springs  necessarily  resulting  from 
the  excavations  incidental  to  the  construc- 
tion of  the  roadbed.  Cleveland,  C.  C.  &  St. 
L.  R.  Co.  V.  Hadley,  45:  796,  101  N.  E.  473, 
179  Ind.  420. 

Digest  1-52  L.R.A.(N.S.) 


4:.  As  to  streets  or  highways. 

(See   also   same   heading   in   Digest   L.R.A 
1-10.) 

Damages  for,  see  Damages,  III.  1.  5. 
Consequential  injuries  from  changing  street 
grade,  see  Highways,  III. 

Establishment  of. 

Setting  off  advantages  from,  see  DAMAOE^s, 

578. 
See  also  supra,  217. 
Railroad  in. 
Measure  of  damages  for,  see  Damages,  III. 

1,  4,  a. 
Right  to  use  street  for  railroad  purposes  as 

against   abutting   owner   generally,   see 

Highways,  96-101. 
Electric  rail^ray  in. 

As  additional  servitude,  see  infra,  303-309. 
Measure  of  damages  for,  see  Damages,  III. 

1,  4,  a. 

270.  An  abutting  property  owner  is  not 
within  the  operation  of  constitutional  pro- 
visions requiring  compensation  for  injuries 
or  actual  damages  to  his  property  by  the 
construction  or  enlargement  of  the  works 
of  a  public  utility  in  a  street,  so  as  to  be  en- 
titled to  compensation  for  the  doubling 
of  a  single  track  electric  railway  in  the 
street,  because  the  loading  of  wagons  at 
the  curb  in  front  of  his  property  is  thereby 
made  more  inconvenient.  Birmingham  R. 
Light  &  Power  Co.  v.  Smyer,  47:  597,  Gl  So. 
354,  181  Ala.  121. 

271.  A  property  owner  is  not,  under  a 
Constitution  requiring  compensation  for 
damaging  property  for  public  use,  entitled 
to  compensation  for  annoyance  and  incon- 
venience by  the  operation  of  a  street  car 
line  in  front  of  his  property  in  such  a  man- 
ner as  to  disturb  sleep,  prevent  occupation 
of  the  dwelling  with  any  degree  of  comfort, 
and  prevent  conversation  on  the  veranda  in 
an  ordinary  tone  of  voice,  although  the 
market  value  of  the  property  is  depreciated 
thereby.  Harrison  v.  Denver  City  Tramway 
Co.  44:  1164,  131  Pac.  409,  54  Colo.  593. 

272.  That  the  noise  made  by  street  cars  in 
passing  around  a  curve  at  a  street  corner  is 
annoying,  that  alarm  signals  are  more  fre- 
quent there  than  at  other  places,  and  that 
the  tracks  are  laid  closer  to  the  curb  so  that 
no  space  for  vehicles  is  left  between  the 
cars  and  the  curb,  do  not  make  the  injury 
to  the  owner  of  the  abutting  property  dif- 
ferent in  kind  from  that  suffered  by  owners 
of  property  passed  by  the  cars  at  other 
places,  so  as  to  give  him  a  right  of  action 
for  the  injurv.  Harrison  v.  Denver  City 
Tramwav  Co.'  44:  1164,  131  Pac.  409,  54 
Colo.  59*3. 

273.  The  damages  to  be  awardea  for  the 
construction  of  a  street  railway  in  the 
street,  the  fee  of  which  is  in  the  abutting 
owner,  may  include  compensation  for  in- 
juries to  his  property  due  to  noise  and 
vibration  resulting  fiom  the  operation  of 
the  cars.  Rasch  v.  Nassau  Electric  R.  Co. 
36:  645,  91  N.  E.  785,  198  N.  Y.  386. 
Elevated  railroad  in. 

Measure  of  damages,   see  Dam:age.s,   III.  1, 
4,  b.  ■  ^••"     ■••-  ■      '-'-"'- 


EMINENT  DOMAIN,  III.  e,  4. 


1029 


Su1)\v^ay  in. 

Necessity   of  making  compensation,   see  su- 
pra, 209. 
As  additional  servitude,  see  infra,  .302. 
Setting  ofF  benefits  from,  see  Damages,  .581. 

274.  Injury  to  abutting  property  by  sliafts 
driven  into  a  street  to  connect  with  a  sub- 
way which  a  municipal  corporation  is  con- 
structing in  its  proprietary  capacity,  un- 
der legislative  authority,  for  rapid  transit 
purposes,  and  which  are  necessary  to  such 
construction,  must  bo  paid  for  by  the  city. 
Re  Board  of  Rapid  Transit  R.  Conns.  36: 
647,  90  N.  E.  456,  197  N.  Y.  81. 

275.  Statutory  authority  to  a  municipal 
corporation  which  undertakes  to  construct 
a  subway  beneath  its  streets  for  rapid  tran- 
sit purposes,  to  condemn  the  easements  of 
abutting  owners,  entitles  the  owner  of  land 
abutting  on  the  street,  wlio  does  not  own 
the  fee  therein,  to  compensation  for  an  in- 
jury done  to  his  building  by  the  forcible 
driving  of  the  tunnel  through  the  soil  so 
as  to  interfere  with  its  lateral  support. 
Re  Board  of  Rapid  Transit  R.  Comrs.  36: 
647,  90  N.  E.  456,  197  N.  Y.  81. 
Establishment  or  change  of  grade. 
Measure  of  damages  for,  see  Damages,  571- 

574. 
Setting  off  benefits  from,  against  damages, 

see  Damages,  579,  590. 
Interest  on  claim  against  municipality  for 

consequential    injuries,    see    Interest, 

23. 

276.  A  municipal  corporation  which,  in 
grading  or  in  changing  the  grading  of  a 
street,  damages  abutting  property,  is  liable 
to  the  owner  therefor,  under  La.  Const.  1898, 
art.  167,  providing  thai;  property  shall  not  be 
taken  or  damaged  for  public  purposes  with- 
out just  and  adequate  compensation.  Man- 
ning V.  Shreveport,  13:  452,  44  So.  882,  119 
La.  1044. 

277.  The  owner  of  improved  property 
which  will  be  damaged  by  a  proposed 
changa  in  the  grade  of  the  street  on  which 
it  abuts  has  an  inchoate  right  to  recover 
damages  upon  the  adoption  of  the  grade 
by  the  municipality,  which  right  will  be- 
come perfect  when  the  damage  is  actually 
inflicted.  Manning  v.  Shreveport,  13:  452, 
44  So.  882,  119  La.  1044. 

278.  An  abutting  lot  owner  is  entitled, 
under  Minn.  Const,  art.  1,  §  13,  as  amended 
in  1896,  providing  that  private  property 
shall  not  be  taken  or  damaged  for  public  use 
without  just  compensation  first  paid  or  se- 
cured, to  recover  compensation  for  injuries 
occasioned  to  his  property  by  reason  of  the 
first  establishment  of  a  street  grade  by  the 
municipality,  and  the  improvement  of  the 
streets  in  conformity  therewith.  Sallden 
V.  Little  Falls,  13:  793,  113  N.  W.  884,   102 

•Minn.   358. 

279.  Under  La.  Const.  1898,  art.  167,  a 
municipal  corporation  is  responsible  for 
damage  to  private  property  resulting  from 
the  initial  grading  of  a  street,  as  well  as 
from  a  change  of  the  established  grade. 
Manning  v.  Shreveport,  13:452,  44  So.  882, 
119  La.  1044. 

280.  If  the  owner  of  an  unimproved  lot 
Digest  1-52  L.R.A.(N.S.) 


places  valuable  improvements  upon  it  after 
the  adoption  by  the  city  of  a  change  in  the 
grade  of  the  street,  whereby  the  premises 
will  be  damaged,  he  is  not  entitled  to  re- 
cover for  the  injury  inflicted  upon  the  prop- 
erty when  the  change  of  grade  is  made. 
Manning  v.  Shreveport,  13:  452,  44  So.  882, 
119  La.   1044. 

281.  A  constitutional  provision  that  prop- 
erty shall  not  be  damaged  for  public  use 
without  compensation  applies  to  injuries  to 
a  house  by  change  of  a  street  grade  after 
the  Constitution  is  adopted,  although  the 
house  was  erected  before  such  adoption. 
Kimball  v.  Salt  Lake  City,  10:  483,  90  Pac. 

.395,  32  Utah,  253. 

282.  That  the  grade  of  a  street  estab- 
lished at  the  time  of  the  improvement  of 
abutting  property  was  merely  on  paper  does 
not  entitle  the  city  to  establish  and  bring 
the  street  to  another  grade  to  the  injury  of 
such  property,  under  a  constitutional  pro- 
vision that  property  shall  not  be  damaged 
without  compensation  and  a  statute  provid- 
ing that  cities  shall  be  liable  for  conse- 
quential damages  to  property  in  case  the  es- 
tablished grade  is  changed  after  improve- 
ment has  been  made  upon  the  property  in 
conformity  to  a  prior  established  grade. 
Kimball  v.  Salt  Lake  City,  10:  483,  90  Pac. 
395,  32  Utah,  253. 

283.  Damages  must  be  paid  for  injiu'v 
to  abutting  property  by  the  change  of  a 
street  grade,  which  is  direct  and  peculiar 
to  such  property,  and  not  such  as  are  shared 
by  the  public  generally,  under  a  Constitu- 
tion requiring  compensation  for  property 
taken  or  damaged  for  public  use.  Dicker- 
son  V.  Okolona,  36:  1194,  135  S.  W.  863, 
98  Ark.  206.  (Annotated) 
Vacating  or  obstructing. 

Measure  of  damages  for,  see  Damages,  562- 

564. 
Liability  for  damages  from  vacating  remote 

part  of  highway,  see  Highways,  411. 

284.  The  right  to  compensation  for  dim- 
inution of  value  of  property  by  diverting 
travel  therefrom,  because  of  the  obstruction 
of  a  street  not  within  the  block,  is  not  de- 
feated by  the  fact  that  other  property  with- 
in the  block  is  injured  in  the  same  way, 
since  this  injury  is  different  from  that  suf- 
fered by  the  public  at  large.  Powell  v. 
Houston  &  T.  C.  R.  Co.  46:  615,  135  S.  W. 
1153,  104  Tex.  219. 

285.  Constitutional  liability  to  make 
compensation  for  damaging  property  for 
public  use  does  not  extend  to  the  loss  of 
rental  value  of  property  abutting  on  a 
highway,  because  of  the  occupation  of  the 
street  with  towers  and  power  houses  nec- 
essary for  the  removal  of  a  condemned 
bridge  which  carries  the  street  across  a 
river,  and  the  construction  of  a  new  one, 
although  access  to  the  property  is  tempo- 
rarily interfered  with  by  such  structures. 
Stern  v.  Spokane,  46:  620,  131  Pac.  476, 
73   Wash.   118.  (Annotated) 

286.  Compensation  cannot  be  allowed  to 
a  church  congregation  for  loss  of  members 
by  the  closing  at  a  railroad  crossing  in 
another   block,  of  one  of  the   streets   upon 


1030 


EMINENT  DOMAIN,  IV.  a,  b,  1. 


which  the  church  is  located,  thereby  mak- 
ing access  to  it  from  that  direction  more 
dilFicult,  under  constitutional  and  statutory 
provisions  that  private  property  shall  not 
be  allowed  to  be  taken  for  public  use  vi^ithout 
compensation,  and  directing  the  authorities 
to  provide  for  ascertaining  the  injury  for 
which  property  owners  ought  to  be  compen- 
sated. German  Evangelical  Lutheran  St. 
L.  Congregation  v.  Baltimore,  52:  889,  90 
Atl.  983,  123  Md.  142.  (Annotated) 

IV.  Additional   servitude. 

a.  In  general;  on  railroad  way. 

(See   also   same  heading  in  Digest   L.R.A. 
1-10.) 

As  to  what  constitutes  a  taking,  see  supra, 

III.  b. 
As    to    necessity    of    making    compensation 

generally,  see  supra,  III.  c,  1. 
As  to   consequential   injuries   from   taking, 

see  supra,  III.  e. 

b.  On  highway. 

1.  In  general. 

(Bee  also   same   heading   in  Digest   L.R.A. 
1-10.) 

As  a  taking,  see  supra,  III.  b,  2. 

287.  A  sidewalk  constructed  outside  the 
traveled  way  for  teams,  but  within  the 
boundaries  of  the  road,  does  not  constitute 
an  additional  burden  added  to  the  easement 
possessed  by  the  public  in  the  land  over 
which  the  road  passes.  Hitchcock  v.  Zink, 
13:  iiio,  113  N.  W.  795,  80  Neb.  29. 

288.  A  county  board  of  supervisors  hav- 
ing statutory  power  to  grant  franchises  over 
and  along  the  public  roads  and  highways 
for  all  lawful  purposes  cannot,  where  the 
public  has  only  an  easement  in  the  high- 
way, authorize  a  power  and  electric  com- 
pany to  construct  a  power  line  along  the 
highway  for  commercial  purposes,  without 
compensation  to  the  owner  of  the  fee. 
Gurnsey  v.  Northern  California  Power  Co. 
36:  185,    117   Pac.   906,    160    Cal.   699. 

(Annotated) 

289.  Maintenance,  under  authority  of  a 
municipality,  by  an  electric  railway  com- 
pany of  a  line  of  poles  and  wires  along 
a  city  street  upon  which  it  has  no  tracks, 
to  supply  power  for  the  operation  of  cars 
upon  other  streets  within  the  city,  is  not 
an  additional  servitude,  for  which  compen- 
sation must  be  made  to  the  abutting  prop- 
erty owners.  Brandt  v.  Spokane  &  I.  E.  R. 
Co.   52:  760,    138   Pac.   871,   78    Wash.   214. 

(Annotated) 

290.  The  fact  that  a  portion  of  electric 
power  conveyed  along  a  city  street  is  used 
for  the  operation  of  suburban  cars  does  not 
render  such  use  of  the  street  an  additional 
burden,  if  the  occupancy  of  the  street  is 
the  same  as  if  the  power  were  applied  only 
Dicest  1-52  I..R.A.(N.S.) 


to  the  operation  of  a  city  railway.     Brandt 
V.  Spokane  &  I.  E.  R.  Co.  52:  760,  138  Pac. 
871,  78  Wash.  214. 
Telegraphs  and  telepbones. 

291.  The  provisions  of  U.  S.  Rev.  Stat.  §§ 
5263-5268  (U.  S.  Comp.  Stat.  1901,  pp. 
3579-3581),  authorizing  the  construction  of 
telegraph  lines  along  "post  roads"  upon 
compliance  with  certain  conditions,  do  not 
affect  the  right  of  an  abutting  landowner  to 
compensation  for  the  burden  imposed  upon 
the  fee  by  the  erection  of  a  line  upon  a 
rural  highway,  which  is  a  post  road.  Cos- 
griff  V.  Tri-State  Teleph.  &  Teleg.  Co. 
5:  1142,  107  N.  W.  525,  15  N.  D.  210. 

292.  Poles  and  wires  strung  along  a  city 
street  to  facilitate  communication  between 
inhabitants  of  the  city  by  telephone  do  not 
constitute  an  additional  burden  on  the  fee, 
for  which  compensation  must  be  made  the 
owners.  Frazier  v.  East  Tennei:see  Teleph. 
Co.  3:  323,  90  S.  W.  620,  115  Tenn.  416. 

( Annotated ) 

293.  The  construction  and  operation  of  a 
telegraph  and  telephone  line  upon  a  rural 
highway  is  not  a  highway  use,  within  the 
purpose  of  the  original  dedication  of  the 
highway,  but  is  a  new  use,  and  constitutes 
an  additional  servitude  upon  the  fee  of  the 
abutting  owner,  for  which  he  is  entitled  to 
compensation.  Cosgriff  v.  Tri-State  Teleph. 
&  Teleg.  Co.  5:  1142,  107  N.  W.  525,  15  N. 
D.  210. 

294.  The  poles  and  wires  of  a  long-dis- 
tance telephone  strung  along  a  public  road 
do  not  constitute  an  additional  burden  which 
will  entitle  the  fee  owner  to  compensation, 
unless  he  shows  that  there  will  be  an  actual 
and  substantial  injury  to  his  property. 
Hobbs  v.  Long  Distance  Teleph.  &  Teleg. 
Co.  7:  87,  41  So.  1003,  147  Ala.  393. 

( Annotated ) 

295.  The  poles  and  wires  of  a  local  tele- 
phone company  constitute  an  additional  serv- 
itude upon  a  street  the  fee  of  which  is  in 
the  abutting  owner.  De  Kalb  County  Tel- 
eph. Co.  v.  Dutton,  10:  1057,  81  N.  E.  838, 
228  111.  178. 

296.  The  use  of  the  poles  of  a  telephone 
company  by  a  municipal  corporation  for  a 
fire-alarm  and  police-signal  system  does  not 
prevent  them  from  being  an  additional  ser- 
vitude on  the  fee.  De  Kalb  County  Teleph. 
Co.  v.  Dutton,  10:  1057,  81  N.  E.  838,  228 
111.  178. 

Subway. 

Consequential  injuries,  see  supra,  274,  275. 

See  also  infra,  302. 

Gas  pipes. 

297.  A  pipe  line  for  the  transportation  of 
gas  is  not  an  additional  servitude  on  a 
public  highway  for  which  the  abutting  own- 
ers are  entitled  to  compensation,  although 
the  gas  is  to  be  transported  through  the 
municipality,  and  is  not  intended  for  the 
use  of  its  citizens.  Cheney  v.  Barker,  16: 
436,  84  N.  E.  492,  198  Mass.  356. 

298.  A  pipe  line,  laid  in  a  public  rural 
highway  under  proper  authority,  and  used 
for  supplying  the  public  with  natural  gas 
for  heating  and  illuminating  purposes, 
though  imposing  an  additional  public  serv- 


EMINENT  DOMAIN,  IV.  b,   2— EMPLOYEES'  INDEMNITY  ACT. 


1031 


ice  upon  the  road,  is  not  a  use  in  excess  of 
the  right  of  the  public  in  such  road,  and 
does  aot  impose  an  additional  burden  upon 
the  estate  in  fee  in  the  land.  Hardman  v. 
Cabot,  7:  506,  55  S.  E.  756,  60  W.  Va.  604. 

(Annotated) 

299.  The  mains  of  a  private  gas  com- 
pany cannot  be  laid  in  a  country  highway 
without  additional  compensation  to  tlie 
owner  of  the  fee,  although  their  purpose  is 
to  supply  gas  to  the  public.  Strotlier  v. 
Calor  Oil  &  Gas  Co.  11:  727,  103  S.  W.  309, 
133  Ky.  614. 

Water  pipes. 

300.  The  laying  of  water  mains  in  a  coun- 
try highway  the  fee  of  which  is  in  an  abut- 
ting owner,  not  for  the  purpose  of  supplying 
its  residents  with  water,  but  to  furnish  con- 
nection with  other  pipes,  is,  although  the 
location  is  adjacent  to  a  well-settled  com- 
munity, an  additional  servitude  which  can- 
not be  authorized  without  making  compen- 
sation to  the  owner.  Baltimore  County 
Water  &  Electric  Co.  v.  Dubreuil,  9:  684, 
66  Atl.  439,  105  Md.  424. 

2.  Railxvays  of  various  Tcinds. 

(See  also   same   heading   in   Digest   L.R.A. 
1-70.) 

301.  A  narrow-gauge  railroad  operated 
exclusively  within  the  limits  of  a  city  by 
power  other  than  steam  directly  applied, 
to  carry  ore  from  a  mine  and  supplies  to 
it,  which  is  located  so  as  to  conform  to 
the  grade  of  a  street,  is  not  an  additional 
burden  thereon  which  will  entitle  an  abut- 
ting owner  to  compensation  for  its  con- 
struction.    Kipp  V.   Davis-Daly  Copper   Co. 

•  36:666,   110   Pac.   237,  41  Mont.   509. 

( Annotated ) 
Subw^ay. 
Consequental  injuries,  see  supra,  274,  275. 

302.  A  subwaj'  for  rapid  transit  by  the 
use  of  trains,  for  accommodation  on  which 
fare  must  be  paid,  constructed  by  a  munici- 
pal corporation  under  a  street  the  fee  of 
which  is  in  the  abutting  owner,  is  an  ad- 
ditional burden  which  entitles  such  owner 
to  compensation.  Re  Board  of  Rapid  Tran- 
sit R.  Comrs.  36:  647,  90  N.  E.  456,  197 
N.  Y.  81.  (Annotated) 
Street  railway. 

As  a  taking  of  property,  see  supra,  193-197. 
See  also  supra,  230. 

303.  A  street  railway  is  an  additional 
burden  on  the  fee  of  a  street,  for  which 
compensation  must  be  made  the  abutting 
owner.  Rasch  v.  Nassau  Electric  R.  Co. 
36:  645,  91  N.  E.  785,  198  N.  Y.  385. 

(Annotated) 

304.  The  mere  fact  that  an  electric  rail- 
way is  constructed  in  a  public  street  with 
T-rails,  and  that  its  cars  are  operated  by 
the  use  of  wires  and  poles,  does  not  show 
that  it  is  an  additional  servitude  on  the 
highway.  Cad  well  v.  Connecticut  Co.  40: 
253,  83  Atl.  215,  85  Conn.  401. 

305.  A  constitutional  provision  that  no 
law  shall  be  passed  whereby  private  prop- 
Digest  1-52  KR.A.CN.S.) 


erty  shall  be  taken  or  damaged  for  public 
use  without  just  compensation  does  not 
change  the  rule  that  construction  of  an  elec- 
tric railway  track  in  a  public  street  is  not 
an  additional  servitude,  entitling  the  abut- 
ting owner  to  compensation.  Wagner  v. 
Bristol  Belt  Line  R.  Co.  25:  1278,  62  S.  E. 
391,  108  Va.  594. 

300.  An  abutting  owner  cannot  enjoin 
the  doubling  by  municipal  authority  of  a 
single  track  electric  railway  in  a  street, 
34  feet  wide,  as  a  nuisance  or  an  additional 
burden  on  the  fee.  Birmingliam  R.  Light 
&  Power  Co.  v.  Smyer,  47:  597,  61  So.  354, 
181  Ala.  121. 
Interurban  railw^ay. 
Consequential  injuries  from,  see  supra,  270- 

273. 
See  also  supra,  289,  290. 

307.  An  interurban  electric  street  rail- 
road when  attempting  to  acquire  the  rights 
of  abutting  owners  in  the  highway,  is  upon 
the  same  plane  with  commercial  railroads 
generally.  Abbott  v.  Milwaukee  Light,  H.  & 
T.  Co.  4:  202,  106  N.  W.  523,  126  Wis.  634. 

(Annotated) 

308.  The  running  upon  an  interurban  elec- 
tric railway  constructed  in  a  public  street, 
of  cars  designed  to  carry  property  only, 
which  run  from  terminus  to  terminus  with- 
out stopping  to  receive  and  discharge  con- 
tents, and  discharging  such  contents  at  the 
two  termini  only,  impose  an  additional  serv- 
itude on  the  fee.  Cadwell  v.  Connecticut 
Co.  40:  253,  83  Atl.  215,  85  Conn.  401. 

(Annotated) 

309.  The  laying  of  a  second  track  in  a 
street  for  street-railway  purposes  by  an  in- 
terurban railway  company,  under  a  street- 
railway  franchise,  authorizing  a  double 
track,  is  not  an  additional  burden  entitling 
an  abutting  owner  to  compensation.  Brick- 
ies V.  Milwaukee  Light,  H.  &  Traction  Co. 
14:  644,  114  N.  W.  810,  134  Wis.  358. 
Elevated  railroads. 

As  a  taking  of  property,  see  supra,  192. 
Increase  of  traffic. 

310.  Mere  increase  of  traffic  and  opera- 
tion of  a  larger  number  of  trains  upon 
tracks  laid  in  a  public  street  is  not  a  new 
burden  which  will  give  a  right  of  action 
against  the  purchaser  from  the  one  origin- 
ally constructing  the  road,  under  whose 
management  the  increase  occurs.  Hanne- 
gan  V.  Denver  &  S.  F.  R.  Co.  16:  874,  95 
Pac.  343,  43  Colo.  122. 


EMPLOYEE. 

Rights,  duties,  and  liabilities  of,  generally, 
see  Master  and  Sebvant. 


EMPLOYEES'  INDEMNITY   ACT. 

Constitutionalitv  of,  see  Con.stitutional 
Law,  71,  135,  316-320,  467-469,  574, 
722,  780,  811;  Conrrrs,  103;  Jury,  45, 
46;   Taxrs,  7,  41. 


1032 


EMPLOYERS'  LIABIUTY— END  OF  WILL. 


Injunction     against     employer's     accepting 
benefits  of,  see  Injunction,  7. 


EMPLOYERS'   LIABILITY. 

Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  71,  135,  316-320, 
467-473. 

Police  power  as  to,  see  Constitutional 
Law,  721-723. 

Insurance  against,  see  Estoppel,  90;  In- 
surance, 916-935. 

In  general,  see  Master  and  Servant,  II. 

Statute  as  to,  generally,  see  Master  and 
Servant,  II.  e,  4, 

Notice  of  claim  under  fellow-servant  act, 
see  Notice,  62. 


EMPLOYERS'    LIABILITY    ACT. 

Forbidding  removal  of  suit  under,  see  Con- 
stitutional Law,  548. 

Constitutionality  of,  see  Constitutional 
Law,  574,  780. 

Jurisdiction  of  action  to  enforce  rights  un- 
der, see  Courts,  210-212. 

Injunction  to  restrain  prosecution  of  suits 
under,  see  Injunction,  248. 

Liability  under,  for  injury  to  employee,  see 
Master  and  Servant,  11. 

Retroactive  effect  of,  see  Statutes,  317. 


EMPLOYMENT. 


Right  of  action  for  unjustifiable  interfer- 
ence with,  see  Case,  34-43. 

Duty  of  employer  to  furnish,  see  Master 
AND  Servant,  2. 

In  general,  see  Master  and  Servant. 


EMPLOYMENT  AGENCY. 

Police  power  as  to,  see  Constitutional 
Law,  705,  706. 

Requiring  license  to  conduct,  see  Constitu- 
tional Law,  706. 


ENACTMENT. 

Of  statutes,  see  Statutes,  I.  a. 


ENCOURAGEMENT. 

Of  another  to  commit  assault,  see  Assault 

AND  Battery,  21. 
Digest  1-52  L.R.A.(N.S.) 


ENCROACHMENT. 

On  neighboring  property  through  mistake, 
see  Adverse  Possession,  14:  Estop- 
.  PEL,  113. 

Injunction  to  compel  removal  of  wall  en- 
croaching on  adjoining  land,  see  In- 
junction, 22,  34. 

Effect  on  liability  for,  of  letting  duty  of 
laying  building  to  independent  contract- 
or, see  Master  and  Servant,  1012. 

1.  No  mutual  mistake  as  to  boundary 
line  which  will  prevent  a  landowner  from 
securing  the  removal  of  a  building  placed 
upon  his  property  by  an  adjoining  land- 
owner is  shown,  wliere,  being  called  to  view 
the  intended  location,  he  is  misled  as  to 
the  true  line  by  the  agent  of  the  building 
owner,  and  consents  to  the  location  upon 
the  express  condition  that  the  building  be 
not  placed  on  his  land.  Kershishian  v. 
Johnson,  36:  402,  96  N.  E.  56,  210  Mass. 
135. 


ENCUMBRANCES. 


What  fund  chargeable  with  costs  of  sale 
when  encumbered  property  is  sold  in 
bankruptcy  free  of  liens,  see  Bankrupt- 
cy, 30. 

Covenants  against,  see  Covenants  and  Con- 
ditions, II.  b;  Damages,  708. 

Perpetual  easement  for  railroad  right  of 
way  as,  see  Deeds,  42. 

What  constitutes  encumbrance  within  stat- 
ute requiring  joinder  or  consent  of 
spouse,  see  Husband  and  Wife,  113. 

Of  wife's  separate  property,  see  Husband' 
AND  Wife,  113. 

On  insured  property,  see  Insurance,  III.  c, 
1,  b. 

Right  of  life  tenant  who  satisfies  encum- 
brance upon  estate,  see  Life  Tenants, 
29. 

Conveyance  of  property  subject  to,  see  Mort- 
gages, III. 

As  making  title  unmarketable  or  defective, 
see  Vendor  and  Purchaser,  32,  33, 
52-55. 

Right  of  devisee  to  removal  of,  see  WILI.S, 
342. 


ENCYCLOPEDIA. 


Copyright    of    articles    therein,    see    Copy- 
bight,  7,  8. 


END  OF  WTLL. 


Signature  of  testator  at,  see  Wills,  25-31. 


ENDOWMENT  POLICY— ENTOMOLOGICAL  COMMISSION.  1033 

ENDO'WMENT  POLICY.  ENGINEERING  QUESTION. 


Assignment   of,    by   bankrupt    to    his    wife, 

see  Insurance,  450. 
Rights  of  divorced  wife  in,  see  Insurance, 

829. 


ENFORCEMENT. 


Of  chattel  mortgage,  see  Chattel  Mort- 
gage, VI. 

Of  contracts,  see  Contracts,  VI. 

Of  public  improvement  assessment,  see  Pub- 
lic Improvements,  III.  f. 


ENGINE. 

Rights  of  persons  riding  on,  with  permission 
of  engineer,  see  Carriers,  74,  76. 

Btatutory  prohibition  against  riding  on, 
see  Carriers,  75. 

Assumption  of  risk  by  person  riding  on,  see 
Carriers,  339. 

Forbidding  jumping  on  or  ofif  of,  while  in 
motion,  see  Carriers,  992,  993. 

Evidence  as  to  practicability  of  guarding, 
see  Evidence,  1778. 

Liability  for  fright  of  horse  by  use  of  road 
engine  on  highway,  see  Highways,  284. 

Injury  to  servant  by  defects  in  or  wreck- 
ing of,  see  Master  and  Servant,  416, 
418,  503,  538,  684;  Notice,  11. 

Fright  of  horse  by,  see  Ne^gligence,  20. 

Breach  of  warranty  on  sale  of,  see  Dam- 
ages, 197,  198,  696;   Sale,  170-172. 

Acceptance  of  engine  by  purchaser,  see  Sale, 
56,  65. 


ENGINEER. 


Conclusiveness  of  decision  of,  see  Contracts, 
681-685. 

Damages  for  negligent  injury  to  engineer's 
transit,   see  Damages,   449. 

Admissibility  in  evidence  of  opinions  of,  see 
Evidence,   1073. 

Master's  liability  for  injury  to,  see  Master 
and  Servant,  II.  a,  4,  d. 

As  fellow  servant,  see  Master  and  Serv- 
ant, 841. 

Liability  of  locomotive  engineer  to  his  fire- 
man for  injury  resulting  from  his  neg- 
ligence, see  Master  and  Servant,  1056; 
Pleading,  313. 

Contributory  negligence  of,  see  Master  and 
Servant,  II.  c. 

Question  for  jury  as  to  proximate  cause  of 
injuries  to,  see  Trial,  180. 

Assiunption  of  risk  by,  as  questicm  for  jury, 
see  Tkul,  535. 

Digest   1-52  L.R.A.(N.S.) 


Proper  throw  necessary  for  split  switch  as, 
see  Master  and  Servant,  402. 

Setting  ciooked  trolley  pole  nearer  track 
than  others  as,  «ee  Master  and  Serv- 
ant, 405. 


ENGLAND. 


Adoption   of   common   law   from,   see   Com- 
mon Law. 


ENROLLED  BILL. 

Conclusiveness  of,  see  Statxjtes,  84, 


ENTERTAINMENTS. 

See  Amusements;   Bathing  Resorts;  Ex- 
hibitions;  Horse  Race;  Theater. 


ENTICING. 


Of  infants,  see  Abduction  and  Kidnapping  ; 

Damages,   313,   314;    Evidence,   2422; 

Husband  and  Wife,  172;  Parent  and 

Child,  10. 
Of  married  woman,  see  Husband  and  Wife, 

158,  159;  Trial,  104,  623. 
Of  servant,  see  Master  and  Servant,  124, 

125;  Parties,  192;  Pleading,  403. 


ENTIRETIES. 


Estate  by,  see  Husband  and  Wife,  II.  b. 


ENTIRETY. 


Of  contract,  see  Contracts,  II.  b;   Insur- 
ance, III.  e,  1,  f. 


ENTIRE   IVRITING. 

Putting  of,  in  evidence,  see  Evidence,  IV.  t. 


^•» 


ENTITLING. 

Of  statute,   see  Statutes,  I.  e. 

♦-•-• 

ENTOMOLOGICAL  COMMISSION. 

Delegation  of  power  to,  see  Constitutionai 
Law,  98. 


1034 


ENTRAPMPiNT— EQUITABLE    CONVERSION. 


Validity  of  statute  providing  for  creation 

of,  see  Constitutional  Law,  '383,  588, 

614,  651. 
Charging  against  owner  expense  incurred  in 

treating  plant  and  insect  diseases,  see 

Taxes,  6. 


ENTRAPMENT. 


As  defense  to  criminal  prosecution,  see  Cbim- 
INAL  Law,  I.  f.  ^    _  1. 


ENTRY. 

In  docket,   sufficiency  of,   see  Appeal  and 

Ebkob,  151. 
In  books  of  account  as  evidence,  see  Evi- 
dence, IV.  j. 
In    surveyor's    field    book    as   evidence,    see 

Evidence,  856. 
In  private  diary,  admissibility  in  evidence, 

see  Evidence,  864. 
Of  judgment,  see  Judgment,  I.  f. 
Burglarious  entry,  see  Bueglaby. 
Of  imported  merchandise,  see  Duties. 
Forcible    entry,    see    Forcible    Entey    and 

Detainee. 
On  mining  claim  which  is  excessive  through 

mistake,  see  Mines,   12. 
On  public  lands,  see  Public  Lands,  I.  b. 
Right  to  re-enter  for  condition  broken   as 

passing  by  will,  see  Wills,  192. 

.THiW  OKA     ,^^^^^ 


ENVELOPS. 


Larceny  of  stamped  envelops,  see  Labceny, 
8. 


EPILEPSY. 


Judicial  notice  as  to,  see  Evidence,  43. 

Proof  of,  as  establishing  insanity,  see  Evi- 
dence, 2221. 

Validity  of  marriage  of  epileptic,  see  Mab- 
biage,  12,  13,  32,  33. 

Question  for  jury  as  to,  see  Tbial,  240. 


EQUALITY. 


Of    immunities,    privileges    and    protection, 

see  Constitutional  Law,  II.  a. 
Of  license  tax,  see  License,  II.  d. 
In  taxation,  see  Taxes,  I.  c. 
Of  income  tax,  see  Taxes,  VI.  b. 
As  to  water  rates,  see  Waters,  422-424. 


EQUALIZATION. 


EQUAL  PRIVILEGES. 

See  Constitutional  Law,  II.  a. 

♦  •» 
EQUAL  PROTECTION. 

See  Constitutional  Law,  II.  a. 

#  * » 

EQUIPMENT. 

Duty  of  carrier  to  provide  sufficient  equip- 
ment, see  Carbiebs,  768,  863,  864. 

State  reguhi.ion  of  carrier's  equipment,  see 
Cabbiebs,  986,  987. 


EQUITABLE  ASSIGNMENT. 

See  Assignment,  II. 


EQUITABLE  CLAIMS. 

Proof  of,  as  against  bankrupt's  estate,  see 
Bankruptcy,  125. 


Of  tax  assessment,  see  Taxes,  197-199. 
Digest   1-52  L.R.A.(N.S.) 


EQUITABLE  CONVERSION. 

By  election  to  exercise  option  to  buy   real 

estate,  see  Atiachment,  38. 
Of  property  held  in  trust,  see  Trusts,  87, 

92. 
By  will,  see  Wills,  III.  j. 
See  also  Taxes,  347,  356. 

1.  Equity  never  enforces  the  doctrine  of 
equitable  conversion  for  the  benefit  of  cred- 
itors. Painter  v.  Painter,  20:  117,  69  Atl. 
323,  220  Pa.  82. 

2.  To  reconvert  into  land  money  aris- 
ing from  land  which  was  by  the  terms  of  a 
will  converted  into  personalty,  all  the  dev- 
isees must  concur.  Starr  v.  Willoughby,  a: 
623,  75  N.  E.  1029,  218  111.  485. 

3.  A  contract  reading,  "I  have  sold"  my 
property  for  a  certain  price  to  a  certain 
person,  who  has  paid  a  sum  to  be  forfeited 
provided  the  remainder  of  the  purchase  price 
is  not  paid  before  a  certain  future  date,  and 
providing  that,  upon  such  payment,  a  war- 
ranty deed  will  be  made,  does  not  amount  to 
a  sale,  so  as  to  constitute  an  equitable 
conversion  and  prevent  the  attachment  of 
the  land  for  a  debt  of  an  heir  of  the  grant- 
or after  his  decease.  Sheehy  v.  Scott,  4:  365, 
104  N.  W.  1139,  128  Iowa,  551. 

4.  The  confirmation  of  a  bid  for  real  es- 
tate sold  by  the  orphans'  court  does  not 
convert  into  real  estate  personal  property 
of  the  bidder,  although  all  of  it  is  necessary 
to  satisfy  the  bid,  so  that  his  estate  will  de- 
scend as  realty  in  case  he  dies  before  pay- 
ing the  amount  due,  and  another  is  procured 


EQUITABLE  ESTATE— EQUITY, 


1035 


to  lake  liis  place.     Re  Brennan,  i6:  859,  69 
Atl.   (>7S.  220  Pa.  232.  (Annotated) 

5.  The  surplus  arising  from  a  foreclo- 
sure sale  of  decedent's  real  estate  after  his 
death  is  not  to  be  regarded  as  personalty 
within  the  operation  of  a  statute  allowing 
the  widow  and  minor  children  a  certain  sum 
out  of  personalty  left  by  him.  Kitchens  v. 
Jones,  19:  723,  113  S.  W.  29,  87  Ark.  502. 

(Annotated) 


EQUITABLE  ESTATE. 

Oral   contract  for  sale  of,   see   Contracts, 
249. 


EQUITABLE   ESTOPPEL. 

See  Estoppel,  III. 


EQUITABLE  LIEN. 

Agreement  for  support  in  consideration  of 
conveyance  as  basis  for  equitable  lien, 
Bee  CoNTKACTS,  769. 


EQUITABLE  MORTGAGE. 

See  Mortage,  8-12,  79,  87, 


EQUITABLE  TITLE. 

Sufficiency  as  defense  in  ejectment  action, 

see  Ejectment,  19. 
Sufficiency  of,  to  give  insurable  interest,  see 

Insxjrance,  52. 


EQUITY. 


J.  Jurisdiction,   1—129. 

a.  In  general,   1—31. 

b.  Remedy  at  law,  32—51. 

c.  Relief       against       judgments, 

orders,  or  aivards,  52—56. 

d.  Cases  of  fraud;  mistalce;  con- 

spiracy;   trusts;    tvills,     57— 
79. 

e.  To    prevent    irreparable    dam- 

age,   80,    81. 

f.  To  cancel  instruments,  82—93. 

g.  To  avoid  multiplicity  of  suits, 

94-105. 
h.  Retaining    jurisdiction,^    106— 
129. 
II.  Transfers  between  law  and  equity. 
III.  Equity  principles,   130—144. 

a.  In  general,  130—139. 

b.  Coming  into  equity  with  clean 

hands,    140-144. 
Digest   1-52  L.R.A.(N.S.) 


Jurisdiction  and  practice  in  particular 
cases,  see  Acx'Ounting;  Cloud  on  Ti- 
tle; Contracts,  III.  g,  V.;  Creditors' 
Bill;  Discovery  and  Inspection;  Di- 
vorce AND  Separation,  II.;  Injunc- 
tion; Mortgage,  VI.;  Reformation  of 
Instruments;  Set-Off  and  Counter- 
claim; Specific  Performance. 

Whether  action  one  at  law  or  one  in  equity, 
see  Action  or  Suit,  70-72. 

Review  of  finding  of  court  of  equity,  see 
Appeal  and  Error,  VII.  1,  3,  b. 

Appeal  in  equitable  case,  see  Appeal  and 
Error.      » 

Necessity  of  filing  motion  for  new  trial  in 
lower  court  to  secure  review  of  equity 
case,  see  Appeal  and  Error,  124. 

Necessity  of  exception  to  allowance  of  dam- 
ages in  equity  cases,  see  Appeal  and 
Error,   358. 

Review  on  appeal  of  evidence  in  equity 
cases,  see  Appeal  and  Error,  511. 

Review  of  discretion  of  court  of,  see  Ap- 
peal AND  Error,  567,  570. 

Reversible  error  in  equity  case,  see  Appeal 
AND  Error,  1130. 

Correction  on  appeal  of  equitable  decree 
taken  for  confessed,  see  Appeal  and 
Error,  1580. 

Remanding  suit  in  equity,  see  Appeal  and 
Erkok,  1608. 

Costs  on  appeal  in  equity  case,  see  Appeal 
AND  Error,  1634. 

Right  of  attorney  general  to  maintain  suit 
in,  see  Attorney  General,  7. 

Giving  effect  to  clause  in  mortgage  cover- 
ing after-acquired  property,  see  Chat- 
tel Mortgage,  13. 

Enforcement  in,  of  parol  gift  of  land,  see 
Contracts,  330. 

Power  to  compel  owner  of  infringed  copy- 
right to  take  damages  instead  of 
profits,  see  Copyright,  20. 

Interference  by,  to  prevent  confirmation  of 
sale  of  property  of  corporation,  see 
Corporations,  270. 

Discretion  of  court  of  equity  as  to  appor- 
tionment of  costs,  see  Costs  and  Fees, 
13,   17. 

Interference  by,  with  collection  of  taxes, 
see  Courts,  11. 

Aiding  member  of  church  wrongfully  ex- 
pelled, see  Courts,  192. 

Right  of  court  of  equity  to  direct  taking  of 
deposition  in  perpetua/m  rei  memoriam, 
.  see  Depositions,  1,  2. 

Admissibility  of  depositions  in  equitable 
proceeding,   see  Depositions,   14. 

As  to  choice  between  legal  and  equitable 
form  of  action,  see  Election  of  Reme- 
dies, 12,  13. 

Presumption  in  equity  proceedings  from 
holding  back  of  evidence,  see  Evidence, 
306. 

Relief  against  forfeiture  in,  see  Forfeiture. 

Requiring  creditor  of  insolvent,  receiving 
conveyance  from  debtor  to  account  for 
excess  value,  see  Fbaudulknt  Convey- 
ances, 40. 

Necessity  of  resort  to  equity  to  enforce 
contract  between  husband  and  wife,  see 
Husband  and  Wife,  199. 


1036 


EQUITY,  I.  a. 


Duty  to  protect  interests  of  minora  in- 
volved in  litigation,  see  Iniants,  107. 

Pendency  of  equitable  action  as  ground  for 
enjoining  legal  proceedings,  see  In- 
junction, 259,  260. 

Enforcing  in  equity  transfer  of  beneficial 
interest  in  benefit  certificate,  see  In- 
surance, 459. 

Conclusiveness  of  decree  in  chancery  in  sub- 
sequent action  at  law,  see  Ju£X1ment, 
86. 

Right  to  jury  trial  in,  see  Jury,  I.  b,  1,  b. 

Sale  under  execution  of  equitable  asset  of 
debtor,  see  Levy  and  Se?zuee,  10. 

Limitation  of  actions  in,  see  Limitation 
OF  Actions,  I.  b. 

What  are  reasonable  restraints  of  trade 
which  equity  will  enforce,  see  Monop- 
oly AND  Combinations,  50. 

Enforcement  in  equity  of  parol  agreement 
by  grantee  of  property  to  assume  mort- 
gage indebtedness,  see  Mortgage,  48. 

Parties  in,  see  Parties. 

Relief  under  prayer,  see  Pleading,   75-77. 

Right  to  plead  and  prove  events  occurring 
after  institution  of  proceeding,  see 
Pleading,  129. 

Allegations  for  equitable  relief,  see  Plead- 
ing, 428,  429. 

Necessity  or  propriety  of  cross  bill  in  equity 
proceedings,  see  Pleading,  536-540, 
'         542. 

Supplying  omission  of  parties  from  bill  by 
filing  cross  bill,  see  Pleiadinq,  537,  538. 

Presumption  that  allegations  in  suit  in 
equity  are  true,  in  absence,  of  replica- 
tion, see  Pleading,  545. 

Prohibition  to  court  of,  see  Prohibition. 

Construction  of  statute  permitting  suit  in 
equity  to  try  title  to  real  estate,  see 
Statutes,  246. 

Subrogation  in,  see  Subrogation. 

Enforcement  by,  of  taK  lien  in  favor  of 
private  party,  see  Taxes,  266,  267. 

Proceeding  to  assess  succession  taK  as  one 
in  equity,  see  Taxes,  350. 

Verdict  of  jury  as  advisory  to  court  in 
equitable  suit,  see  Trial,  1118. 

Right  of  court  to  make  findings  independent 
of  jury's  verdict,  see  Trial,  1118,  1119. 

Power  to  control  discretion  of  trustee,  see 
Trusts,  86. 

Enforcement  in,  of  vendor's  lien,  see  Vend- 
or and  Purchaser,  77,  78,  82. 

'ildRihyo'^        '•  Jurisdiction. 

,M,T,  a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Questioning  jurisdiction   for   first   time   on 

appeal,  see  Appeal  and  Error,  710. 
Suit  in  equity  to  recover  on  lost  check,  see 

Checks,  8. 
Jurisdiction      of      courts,      generally,      see 

Courts. 
Respective  powers  and  jurisdiction  of  courts 

of  law  and  equity,  see  Courts,  196. 
Jurisdictional    limitations   of,    see   Courts, 

I.  b. 
Digest   1-52  L.R.A.(N.S.) 


Federal  jurisdiction  in,  see  Courts,  III.  £. 
To  appoint  receiver,  see  Receivers,  3,  4. 

1.  All  relief  respecting  a  purely  equita- 
table  title  must  be  sought  in  a  court  of 
equity,  as  such  a  title  cannot  be  maintained 
in  a  court  of  law.  Depue  v.  Miller,  23:  775, 
64  S.  E.  740,  65  W.  Va.  120. 

2.  If  a  charge  is  of  a  criminal  nature, 
or  an  oflFense  against  the  public,  and  does 
not  touch  the  enjoyment  of  property  or 
liealth,  it  is  not  within  the  jurisdiction  of  a 
court  of  equity.  State  v.  Ehrlick,  23:  691, 
64  S.  E.  935,  65  W.  Va.  700. 

3.  Criminal  remedies  and  procedure 
must  be  deemed  adequate  to  the  mainte- 
nance of  the  public  right,  in  respect  to  moral 
and  political  principles,  except  in  so  far  as 
the  legislature  may  have  provided  otliers, 
since  that  body,  having  plenary  power  over 
such  matters,  has  seen  fit  to  rely  upon  ex- 
isting remedies,  and  courts  of  equity  are 
powerless  to  ordain  jurisdiction  for  them- 
selves. State  V.  Ehrlick,  23:  691,  24  S.  E. 
935,  65  W.  Va.  700. 

To  protect  political  rights. 

4.  Equity  will  not  interpose,  on  behalf 
of  a  voter  to  protect  his  right  to  vote  at  any 
election,  it  being  a  mere  political  right  not 
within  equitable  cognizance.  Shoemaker  v. 
Des  Moines,  3:  382,  105  N.  W.  520,  129  Iowa, 
244.  ( Annotated ) 
To    protect    remaindermen. 

5.  Equity  has  jurisdiction  of  a  pro- 
ceeding to  hold  the  estate  of  a  life  tenant 
answerable  for  the  sum  necessary  to  make 
the  repairs  which  he  should  have  made 
upon  the  property.  Prescott  v.  Grimes,  33: 
669,  136  S.  W.  206,  143  Ky.  191. 

To  fix  rates. 

Effect  of  remedy  at  law,  see  infra,  42. 

6.  Equity  has  no  jurisdiction  to  fix,  at 
the  suit  of  a  municipality  or  private  can- 
sumers,  the  reasonable  rate  at  which  a  gas 
company  is  impliedly  bound  to  furnish  gas, 
and  enforce  such  rate  against  the  eompaay 
in  its  future  contracts.  Madison  v.  Madi- 
son Gas  &  Electric  Co.  8:  529,  108  N.  W.  85, 
129  Wis.  249.  (Annotated) 

7.  A  coui't  of  equity  has  no  power  to 
prescribe  a  schedule  of  prices  to  be  charged 
by  a  warehouse  affected  by  a  public  use,  for 
the  handling  of  commodities  committed  to 
its  custody.  Gulf  Compress  Co.  v.  Harris, 
Cortner  &  Co.  24:  399,  48  So.  477,  158  Ala. 
343.  (Annotated) 
Corporate  matters. 

Effect  of  remedy  at  law,  see  infra,  45,  46. 

To  enforce  liability  of  stockholder  in  bank, 
see  Banks,  17. 

Compelling  transfer  of  stock  on  books  by 
bill  in  equity,  see  Banks,  13;  Cobpo- 
/  rations,  230. 

Jurisdiction  over  foreign  corporation,  see 
Courts,  43. 

Of  action  by  corporate  stockholder,  see  Cor- 
porations, V.  e,  2. 

To  enforce  stockholder's  liability,  see  Cor- 
porations, V.  f,  4. 

8.  Equity  has  jurisdiction  of  a  bill  by 
a  receiver  to  hold  directors  of  a  bank  liable 
for  losses  caused  bj  their  permitting  illegal 


EQUITY,  1.  a. 


1037 


loans  and  declaring  improper  dividends. 
Emerson  v.  Gaither,  8:  738,  64  Atl.  26,  103 
Md.   564.  (Annotated) 

As  to  nnisances. 

Injunction     against     nuisance,     see     Nui- 
sances,  II. 
As  to  boundaries. 

9.  Where  the  main  purpose  of  a  suit 
is  to  try  title  and  boundary  to  land,  and 
discovery  and  accounting  for  profits  are 
only  incidents  to  and  dependent  upon  the 
main  issues,  equity  will  not  take  jurisdic- 
tion on  grounds  of  discovery  and  accoui\t- 
ing.  Lock-wood  v.  Carter  Oil  Co.  52:  765, 
80  S.  E.  814,  73  W.  Va.  175. 
Suit  on  bond  of  officer. 
Enforceability  of  trust  in,  see  Trusts. 

10.  The  secretary  and  treasurer  of  a 
board  of  levee  commissioners  is  a  public 
oliicer  within  the  meaning  of  a  constitu- 
tional provision  giving  the  chancery  court 
jurisdiction  of  suits  on  bonds  of  public  of- 
ficers for  failure  to  account  for  public 
money  received  by  them.  Adams  v.  Wil- 
liams, 30:  855,  52  So.  865,  97  Miss.  113. 
Suit  to  remove  structure  from  street. 

11.  Equity  has  jurisdiction  of  a  bill  to 
require  the  removal  from  a  public  highway 
of  street-railway  tracks  placed  there  with- 
out the  eoBsent  of  the  proper  authorities. 
Bangor  t.  Bay  City  Traction  &  E.  Co.  7: 
1 187,  110  N.  W.  490,  147  Mich.  165. 

12.  Equity  has  jurisdiction  of  a  suit  to 
compel  the  removal  of  a  structure  from  a 
sidewalk,  which  the  owner  claims  the  right 
to  maintain  under  the  authority  of  the  mu- 
nicipality. New  York  v.  Rice,  28:  375,  91 
N.  E.  283,  198  N.  Y.  124. 

Election  on  bebalf  of  insane  ^xridow^. 

13.  Equity  has  jurisdiction  of  a  suit  by 
an  insane  widow  by  next  friend  to  secure 
an  election  on  her  behalf  against  the  will 
of  her  husband,  where  the  bill  alleges  that 
the  provision  for  her  is  not  adequate,  and 
that  her  guardians  refuse  to  renounce  the 
will  although  it  is  to  her  best  interest  to 
do  so.  Re  Connor,  49:  1108,  162  S.  W.  252, 
254  Mo.  65. 

14.  Notwithstanding  the  fact  that  the 
general  control  of  the  insane  has  been  by 
statute  transferred  from  the  courts  of  equi- 
ty to  the  probate  courts,  and  althougli  a 
statute  authorizes  in  certain  instances  the 
guardian  of  an  insane  widow  to  elect  against 
a  testamentary  provision  in  her  favor,  yet, 
where  the  guardian  refuses  to  act,  the  ques- 
tion whether  such  an  election  should  be 
made  is  one  of  which  a  court  of  equity  may 
take  jurisdiction.  Re  Connor.  49:  1108,  162 
S.  W.  252,  254  Mo.  65. 

Expulsion  from  labor  union. 

15.  Equity  will  not  interfere  to  pre- 
vent the  expulsion  of  a  member  of  a  labor 
union  because  of  refusal  to  pay  a  fine  duly 
assessed  by  the  legally  constituted  author- 
ities of  the  union,  for  his  alleged  wrongful 
use  of  union  labels  on  nonunion  work,  in 
the  absence  of  anything  to  show  irrepar- 
able injustice  and  hardship.  Engel  v. 
Walsh,  45:  353,  101  N.  E.  222,  258  111.  98. 

(A'inotated) 
Digest   1-52  L.R.A.(N.S.) 


Reinstatement  of  pastor. 

16.  Equity  will  not  interfere  to  rein- 
state the  pastor  of  a  religious  denomina- 
tion who  has  been  expelled  without  any 
violation  of  the  trust  under  which  the 
property  is  held,  where  the  effect  will  be 
to  dispossess  the  majority,  and  turn  the 
property  over  to  the  minority.  Duessel  v. 
Proch,  3:  854,  62  Atl.  152,  78  Conn.  343. 

(Annotated) 
VTaiver  of  objections   to  jurisdiction. 

17.  That  a  suit  does  not  involve  matter 
of  equitable  cognizance  is  not  waived  by 
answering  and  seeking  affirmative  relief, 
under  a  statute  providing  that  objections 
not  taken  shall  be  deemed  waived,  except 
objections  to  the  jurisdiction  of  the  court, 
and  that  the  complaint  does  not  state  a 
cause    of   action.     Maxwell   v.   Frazier,    18: 

.102,  96  Pac.  548,  52  Or.  183. 
Miscellaneous. 

18.  Courts  of  equity  have  concurrent  ju- 
risdiction with  courts  of  law  in  suits  to  re- 
cover back  money  lost  in  gaming  centracts, 
regardless  of  the  question  of  necessity  for 
discovery,  or  adequate  remedy  at  law.  Berns 
V.  Shaw,  23:  522,  64  S.  E.  930,  65  W.  Va.  667. 

10.  The  action  of  municipal  authorities 
in  granting  and  revoking  privileges  and  li- 
censes in  highways  is  the  exercise  of  dele- 
gated police  power,  and  is  not  judicial  in 
character  so  as  to  deprive  a  court  of  equity 
of  jurisdiction  to  review  such  action.  Wheel- 
ing &  E.  O.  R.  Co.  v.  Triadelphia,  4:  321,  52 
S.  E.  499,  58  W.  Va.  487.  (Annotated) 

20.  Equity  will  grant  relief  in  case  of 
the  raising  of  the  water  in  a  water  course 
by  means  of  a  dam,  to  the  injury  of  upper 
riparian  lards,  where  the  injury  is  sub- 
stantial and  permanent,  even  though  the 
rights  have  not  been  established  at  law. 
Cloyes  v.  Middlebury  Electric  Co.  11:693, 
66  Atl.  1039,  80  Vt.  109. 

21.  Equity  will  not  refuse  jurisdiction 
of  a  suit  to  abate  a  dam  over  a  water 
course,  which  throws  the  water  back  upon 
upper  riparian  lands  to  their  injury,  merely 
because  tlie  parties  are  numerous  and  their 
rights  have  not  been  established  at  law. 
Cloyes  V.  Middlebury  Electric  Co.  11;  693, 
66  Atl.   1039,  80  Vt.'lOO. 

22.  Partnership  is  a  relation  of  trust 
and  confidence,  and  upon  dissolution  of  the 
partnership,  without  an  adjustment  by  the 
partners  of  their  rights  in  the  good  will 
of  the  business  and  in  the  premises  which 
they  hold  under  lease,  it  is  the  province  of 
a  court  of  equity  to  adjust  such  differences. 
Knapp  V.  Reed,  32:  869,  130  N.  W.  430,  88 
Neb.  754. 

23.  Equity  should  not  proceed,  against 
the  objection  of  defendant,  in  a  suit  by  a 
trustee  in  bankruptcy  to  recover  a  definite 
sum  as  the  value  of  property  transferred 
within  four  months  prior  to  the  beginninj^ 
of  the  proceedings,  all  of  which  will  be  nec- 
essary to  meet  the  claims  against  the  bank- 
rupt. Warmath  v.  O'Daniel,  16:  414,  159 
Fed.  87,  86  C.  C.  A.  277.  (Annotated) 

24.  Equity  has  jurisdiction  to  protect 
the  rights  of  one  who  has  jmrchased  a  par- 
cel of  land  according  to  a  plat,  to  have  the 


1038 


EQUITY,  I.  b. 


■treeta  shown  on  the  plat  maintained  as 
shown.  Heroid  v.  Columbia  Invest.  &  Real 
Estate  Co.  (N.  J.  Err.  &  App.)  14:  1067, 
67  Atl.  GOT,  72  N.  J.  Eq.  857. 

25.  Equity  has  no  jurisdiction  to  com- 
pel a  reconveyance  of  land  the  title  to  which 
has  passed  by  the  delivery  of  deeds  of  the 
grantee  without  any  express  reservation  of 
the  right  to  recall  them,  and  with  the  in- 
tent that  upon  a  certain  contingency  they 
shall  be  effective  without  any  further  act 
on  the  part  of  the  grantor.  Wipfler  v. 
Wipfler,  i6:  941,  116  N.  W.  544,  153  Mich. 
18. 

26.  Where  land  has  been  sold  under  a 
decree,  and  the  sale  not  reported  by  the 
commissioner  making  it,  and  not  confirmed, 
and  an  unauthorized  deed  for  the  land  is 
made  by  the  commissioner  to  the  purchaser, 
and  the  cause  is  dropped  from  the  docket 
many  years,  but  not  dismissed,  equity  has 
jurisdiction  of  a  suit  to  reinstate  the  first 
suit  and  to  direct  the  conveyance  of  the 
land  sold,  or  confirm  the  sale  and  the  deed 
already  made,  on  the  force  of  that  deed, 
treating  it  as  a  report  and  evidence  of  the 
sale.  McGinnis  v.  Caldwell,  43:  630,  76  S.  R 
834,  71  W.  Va.  375. 

27.  The  jurisdiction  of  equity  to  rein- 
state an  action  for  the  sale  of  land  and  cor- 
rect the  proceedings  therein  is  not  defeated 
by  the  fact  that  the  deed  issued  in  such 
former  action  may  be  a  defense  as  color 
of  title  in  an  action  of  ejectment  against 
the  owner  thereof,  as  the  owner  of  such 
deed  is  entitled  to  have  a  legal  title.  Mc- 
Ginnis v.  Caldwell,  43:  630,  76  S.  E.  834, 
71  W.  Va.  375. 

28.  Equity  has  jurisdiction  of  a  suit  by 
a  creditor  of  a  corporation  to  reach  a  claim 
in  its  favor  which  is  alleged  to  have  been 
assigned  to  another  corporation,  and  to  be 
its  property,  subject  to  the  debts  of  the  as- 
signor, although  it  would  have  been  subject 
to  levy  or  attachment  at  law  had  it  re- 
mained the  property  of  the  assignor.  Jen- 
nings, Neff,  &  Co.  V.  Crystal  Ice  Co.  47: 
1058,  159  S.  W.  1088,  128  Tenn.  231. 

29.  Equity  has  jurisdiction  of  a  suit  by 
the  payee  of  a  note  against  a  bank  and 
its  cashier,  who  had  lent  the  payee's  money 
on  the  note  before  a  specified  indorsement 
had  been  secured,  contrary  to  instructions, 
and  the  maker  and  designated  surety,  who 
had  promised  in  writing  to  sign  the  note, 
to  adjust  the  rights  of  the  parties  and  af- 
fix the  liability  for  the  amount  due.  Pettv 
V.  Gacking,  33:  175,  133  S.  W.  832,  97  Ark, 
217. 

30.  Failure  of  the  holder  of  a  benefit 
certificate  to  pay  the  nominal  fee  for  a 
new  certificate,  made  necessary  by  the  by- 

.  laws  of  the  order  to  effect  a  change  of  bene- 
.  ficiary,  will  prevent  equity  from  giving 
.effect  to  the  attempted  change,  althout;]!  he 
had  given  notice  to  the  order  to  make  it, 
if  the  proper  officer  had  not  assented  there- 
to before  death  occurred.  Ancient  Order 
of  Gleaners  v.  Bury,  34:  277,  130  N.  W.  191, 
165  Mich.  1.  (Annotated) 

31.  One  who  has  contracted  to  convey 
real  estate  for  a  certain  down  payment, 
Digest  1-58  L.R.A.(N.S.) 


with  balance  to  be  paid  at  a  fixed  time  in 
the  future,  and  the  deed  to  be  placed  in 
escrow  until  such  payment  is  made,  may, 
when  the  time  for  final  performance  ar- 
rives, treat  the  contract  as  a  mortgage  and 
resort  to  equity  to  enforce  it.  Nixon  v. 
Marr,  36:  1067,  190  Fed.  913,  111  C.  C.  A. 
503. 

b.  Remedy   at   law. 

(See  also  same  heading  in  Digest  L.lf.A. 
1-10.) 

Abatement  of  action  in,  by  pendency  of  ac- 
tion at  law,  see  Abatement  and  Re- 
vival, 26. 

Jurisdiction  of  suit  against  tax  collector  for 
accounting,  see  Accounting,  6. 

Burden  of  showing  that  remedy  at  law  is 
not  adequate,  see  Evidence,  653. 

See  also  infra,  67,  59,  85;  Corporations, 
361 ;  Injunction  ;  Mandamus,  46 ; 
Nuisances,  130,  134;  Specific  Per- 
formance, 64. 

32.  The  court  cannot,  because  it  has  gen- 
eral jurisdiction  of  the  subject-matter,  de- 
termine in  an  equity  proceeding  matters 
which,  are  properly  cognizable  only  at  law. 
Hoffman  v.  Tooele,  45:  992,  130  Pac.  Gl,  42 
Utah,  353. 

33.  Where  special  circumstances  exist 
rendering  the  remedy  at  law  against  an  in- 
strument alleged  to  have  been  procured  by 
fraud  inadequate,  the  party  is  entitled  to 
equitable  relief  as  matter  of  right.  John- 
son V.  Swanke,  5:  1048,  107  N.  W.  481,  128 
Wis.  68. 

34.  lEquity  has  no  jurisdiction  of  a  suit 
to  prevent  wrongful  interference  by  one  who 
has  granted  the  right  to  hunt  on  his  land 
with  the  rights  of  the  grantee,  since  the 
remedy  at  law  for  damages  is  adequate. 
Isherwood  v.  Salene,  40:  299,  123  Pac.  49, 
61  Or.  572. 

35.  Equity  has  jurisdiction  of  a  suit  to 
prevent  the  obstruction  of  a  floatable 
stream  if  the  damages  constitute  depriva- 
tion of  estimated  profits  to  be  earned  which 
are  of  such  a  nature  that  no  recovery  can  be 
had  for  them  in  a  court  of  law.  Black- 
man  v.  Mauldin,  27:  670,  51  So.  23,  164  Ala. 
337. 

36.  Equity  has  jurisdiction  of  a  suit  by 
an  alleged  widow  to  partition  lands  owned 
by  h'>r  husband  at  his  death  where  issues 
are  tendered  which,  if  sustained,  would  de- 
prive the  widow  of  any  interest  whatever, 
notwithstanding  a  statute  providing  for  a 
proceeding  in  a  probate  court  to  set  off  the 
widow's  share,  aa  in  such  case  the  probate 
proceediTiiT  would  be  ineffectual.  Munn  v. 
Gordon,  25:  917,  106  Pac.  286,  81  Kan.  537. 

37.  Equity  has  jurisdiction  of  a  suit  to 
restrain  one  who  has  been  employed  on  a 
laundry  route  on  condition  that  he  refrain 
from  soliciting  the  customers  on  that  route 
for  him-  If  or  a  rival  of  his  employer  dur- 
ing his  employment  or  for  two  years  after- 
ward, from  breaking  his  agreement,  since 
the   remeily   at   law   for  damages   is   inade- 


EQUITV,  I.  c. 


1039 


quate.     Eureka   Laundry   Co.  v.   Long,   35: 
119,   131  N.  W.  412,   146  Wis.  205. 

38.  The  remedy  by  action  at  law  for 
damages  for  the  wrongful  obstruction  of  a 
public  street  so  as  to  cut  one  off  from  access 
to  his  property  is  not  so  complete  and 
adequate  as  to  prevent  equitable  relief. 
Sloss-Sheffield  Steel  &  Iron  Co.  v.  Johnson, 
8:  226,  41  So.  907,  147  Ala.  384. 

39.  There  is  no  adequate  remedy  at  law 
which  will  prevent  equitable  relief  against 
breach  of  a  contract  not  to  sell  fire  clay 
to  another  than  the  other  contracting  party, 
where  one  not  a  party  to  the  contract  has 
purchased  the  tract  and  is  proceeding  to 
operate  it  for  his  own  benefit,  and  the  ven- 
dor is  financially  irresponsible.  Lanyon  v. 
Garden  City  Sand  Co.  9:  446,  79  N.  E.  313, 
223  111.  616. 

40.  The  remedy  at  law  of  a  municipal 
corporation  which  has  paid  over  money 
which  it  appropriated,  in  violation  of  the 
Constitution,  to  induce  the  building  of  a 
railroad  to  the  town,  to  recover  it  back,  is 
complete;  and  the  case  should  not  be  trans- 
ferred from  law  to  equitv.  Luxora  v.  Jones- 
boro,  L.  C.  &  E.  R.  Co."  13:  157,  103  S.  W. 
605.  83  Ark.  275. 

41.  A  suit  in  equity  will  not  lie  to  com- 
pel the  lowering  of  a  milldam  maintained 
above  the  height  fixed  by  the  commissioners, 
where  the  statute  provides  that  any  person 
whose  land  is  injured  by  such  dam  may  ob- 
tain compensation  therefor  in  a  civil  ac- 
tion, but  in  no  other  manner.  Allaby  v. 
Mauston  Electric  Service  Co.  16:  420,  116 
N.  W.  4,   135  Wis.  345. 

42.  The  remedy  at  law  of  a  railroad 
company  to  test  the  validity  of  a  statute 
fixing  rates  for  railroad  transportation  by 
disobeying  the  statute  once  and  submitting 
to  a  criminal  prosecution  is  not  so  adequate 
as  to  deprive  equity  of  jurisdiction,  where 
several  years  might  elapse  before  a  final 
determination  of  the  question,  pending 
which  observance  of  the  statute,  if  finally 
found  to  be  invalid,  would  result  in  taking 
its  property  without  due  process  of  law, 
with  no  possibility  of  its  recovery.  Ex  parte 
Young,  13:  932,  28  Sup.  Ct.  Rep.  441,  209 
U.  S.  123,  52  L.  ed.  714. 

43.  The  equitable  jurisdiction  of  the 
court  to  rescind  a  sale  for  fraud  is  not 
ousted  by  the  existence  of  a  remedy  at  law 
to  recover  possession  of  the  property  con- 
veyed. Swan  v.  Talbot,  17:  1066,  94  Pac. 
238,  152  Cal.   142. 

44.  Equity  has  no  jurisdiction  to  enforce 
a  decree  for  alimony  rendered  by  a  court  of 
another  state,  the  remedy  at  law  being  ade- 
quate. Davis  v.  Davis,  9:  1071,  29  App.  D. 
C.  258.  (Annotated) 
Corporate  matters. 

45.  The  right  to  maintain  suits  against 
the  individual  stockholders  of  an  insolvent 
corporation  to  enforce  their  liability  on  un- 
paid stock  subscriptions  does  not  constitute 
such  a  plain,  full,  and  adequate  remedy  at 
law  as  to  defeat  a  suit  in  equity  against  all 
the  stockholders  for  the  collection  and  ad- 
ministration of  the  corporate  assets  as  a 
trust  fund  for  the  benefit  of  creditors.  Cook 
Digest  1-52  I..R.A.(N.S.) 


V.    Carpenter,    1 :  900,   61   Atl.   799,   212   Pa. 
165. 

46.  There  is  no  adequate  remedy  at  law 
against  a  corporation  for  refusal  to  enter  a 
transfer  of  stock  on  its  books,  which  will 
defeat  a  proceeding  in  equity  to  compel  such 
transfer.  Westminster  Nat.  Bank  v.  New 
England  Electrical  Works,  3:  551,  62  Atl. 
971,  73  N.  H.  465. 

As  to  real  property. 

Effect  on  equitable  right  to  enforce  vendor's 

lien,  see  Vendor  and  Pubchaseb,  82. 
See  also  Specific  Pebfobmance,  46. 

47.  An  action  for  forcible  entry  and  de- 
tainer to  recover  possession  of  property 
leased  for  mining  purposes  is  not  an  ade- 
quate remedy,  so  as  to  defeat  the  jurisdic- 
tion of  equity,  where  the  mining  operations 
are  being  carried  on  in  such  a  way  as  to  re- 
move the  supports  of  the  surface  and  cause 
it  to  subside.  Big  Six  Development  Co.  v. 
Mitchell,   i:  332,   138  Fed.  279,  70  C.  C.  A. 

r)6!>. 

48.  A  case  in  which  the  purchaser  of 
land  out  of  possession  seeks  to  remove  a 
cloud  on  his  title  caused  by  the  extension 
of  the  term  of  a  lease  by  insane  lessors  is 
not  strictissimi  juris,  but  addressed  to  the 
discretion  of  the  court;  and,  where  the 
primary  object  of  the  bill  is  to  remove  the 
cloud,  and  the  remedy  at  law  is  adequate, 
and  there  is  no  danger  from  delay,  and  no 
other  ingredient  that  requires  the  effective 
powers  of  equity  to  prevent  fraud  or  in- 
justice, the  complainant  will  be  left  to  his 
remedy  at  law.  Quinn  v.  Valiquette,  14: 
962,  68  Atl.  515,  80  Vt.  434. 

49.  A  lessee  having  a  present  interest  in 
the  term,  but  out  of  possession,  cannot 
maintain  a  bill  in  equity  against  a  trespas- 
ser in  possession  to  establish  title,  acquire 
possession,  remove  a  cloud,  for  an  account- 
ing and  an  injunction,  since  he  has  a  com- 
plete and  adequate  remedy  at  law  by  eject- 
ment. Johnston  v.  Corson  Gold  Min.  Co. 
15:  1078,  157  Fed.  145,  84  C.  C.  A.  593. 

50.  As  growing  timber  is  part  and  parcel 
of  the  land  on  which  it  stands,  wrongful 
destruction  thereof  is  an  injury  to  the  land 
itself,  not  adequately  remediable  by  an 
action  at  law.  Pardee  v.  Camden  Lumber 
Co.  43:  262,  73  S.  E.  82,  70  W.  Va.  68. 

51.  An  owner  of  land  with  standing 
timber  thereon  has  a  legal  right,  not  sus- 
tained by  legal  remedies,  to  keep  the  timber 
in  its  natural  state  until  such  time  as  he 
may  see  fit  to  alter  its  character  and  inci- 
dents by  severance,  wherefore  equity,  upon  a 
proper  application  therefor,  will  interpose 
its  remedies  for  protection  thereof.  Pardee 
V.  Camden  Lumber  Co.  43:  262,  73  S.  E.  82, 
70  W.  Va.  68. 

c.  Belief  against  judgments,  orders,  or 
awards. 

(See   also    same   heading   in  Digest  L.R.A. 
1-70.) 

Injunction  against  judgment,  see   Injunc- 
tion, 276-289. 


1040 


EQUITY,  I.  d. 


Relief     against     judgment     generally,     see 

Judgment,  VII. 
Original   suit '  in   equity,   to   impeach   judg-  | 

ment,  see  Judgment,  390. 

52.  Failure  of  a  nonresident  corporation 
to  act  upon  information  furnished  by  a 
stranger,  that  process  had  been  served  upon 
him  in  an  action  against  it,  will  not  deprive 
it  of  the  right  to  equitable  relief  against 
the  judgment  rendered.  National  Metal  Co. 
V.  Greene  Consol.  Copper  Co.  g:  1062,  89 
Pac.  535,  11  Ariz.  108.  (Annotated) 

53.  To  maintain  a  separate  suit  in  equi- 
ty to  set  aside  a  judgment  obtained  with- 
out service  of  process,  which  defect  does 
not  appear  upon  the  face  of  the  record,  the 
party  must  show  that  he  has,  or  at  the  time 
tlie  judgment  was  entered  had,  a  good  de- 
fense, in  whole  or  in  part,  to  the  action. 
Brandt  v.  Little,  14:  213,  91  Pac.  765,  47 
Wash.  194.  (Annotated) 

54.  A  court  of  equity  has  jurisdiction 
to  correct  a  decree  of  a  probate  court  dis- 
tributing the  estate  of  a  deceased  person, 
which  awards  larger  parcels  than  it  should, 
because  some  of  the  heirs  had  not  been  dis- 
covered, and  the  agent  appointed  under  the 
statute  to  represent  nonresident  heirs  has 
the  same  authority  over  the  parcels  as  de- 
termined by  such  court,  as  he  would  have 
had  over  those  fixed  by  the  probate  court. 
Bickford  v.  Stewart,  34:  623,  104  Pac.  263, 
106  Pac.  1115,  55  Wash.  278. 

56.  Equitj'  has  jurisdiction  to  open,  for 
the  purpose  of  purging  the  usury,  a  judg- 
ment entered,  without  notice  to  the  maker, 
upon  a  usurious  note  by  authority  of  a 
power  of  attorney  contained  therein.  Higli- 
tower  V.  Coalson,  12:  659,  44  So.  53,  151  Ala. 
147.  (Annotated) 

56.  In  a  state  where  a  justice  of  the 
peace  has  no  power  to  set  aside  his  judg- 
ments or  grant  a  new  trial,  and  where  upon 
appeal  or  certiorari  to  the  district  court, 
the  cause  is  triable  de  novo  only,  one 
against  whom  a  void  judgment  has  been 
rendered  by  a  justice  of  the  peace  is  not, 
though  vi'ith  actual  notice  thereof,  guilty 
of  laches  and  negligence  sufficient  to  bar  his 
right  to  an  equitable  remedy  against  such 
judgment,  because  he  fails  to  appeal  or  sue 
out  a  writ  of  certiorari.  Pickering  v.  Pal- 
mer, 50:  1055,  138  Pac.  198,  18  N.  M.  473. 

(Annotated) 

d.  Cases  of  fraud;  mistake;  conspiracy ; 
trusts;  wills. 

(See  also   same  heading   in  Digest  L.R.A. 

.,     1-1  O.J 

Surplusage  in  pleading,  see  Pleading,  141. 

Fraud. 

EflFect  of  fraud  on  right  to  equitable  en- 
forcement of  contract,  see  infra,  140, 
141. 

Aid  of,  to  participant  in  illegal  contract, 
see   Contracts,   III.   g. 

Relief  against  fraudulent  reduction  of 
stock,  sfee  Corporations,  202. 

Digest  1-52  I..R.A.(N.S.) 


Jurisdiction  to  set  aside  sale  for  fraiid,  see 

Fraud  and  Deceit,  35. 
See  also  supra,  33,  43;   infra,  82-84. 

57.  Fraud  in  the  procurement  of  a  con- 
tract is  not  of  itself  sufficient  to  take  a  case 
out  of  the  rule  that  equity  will  not  interfere 
to  procure  its  cancelation  if  there  is  an  ade- 
quate remedy  at  law.  Johnson  v.  Swanke, 
5:  1048,  107  N.  W.  481,  128  Wis.  68. 

( Annotated ) 

58.  Fraudulent  representations  are  not 
necessary  to  confer  jurisdiction  upon  equity 
to  cancel  a  contract  for  fraud,  fraudulent 
concealment  being  sufficient  for  that  pur- 
pose. Fred  Macey  Co.  v.  Macey,  5:  1036,  106 
N.  W.  722,  143  Mich.  138. 

59.  Equity  has  jurisdiction  to  cancel  a 
fraudulent  contract  rlleged  to  bind  the  as- 
sets of  a  corporation,  and  which,  until  can- 
celed, will  tend  to  injure  its  business  and 
impair  its  credit,  although  there  is  a  rem- 
edy at  law  by  defense  to  an  action  to  en- 
force it,  or  by  an  action  to  compel  restora- 
tion of  the  funds  secured  by  means  of  it. 
Fred  Macey  Co.  v.  Macey,  5:  1036,  106  N.  W. 
722,  143  Mich.  138.  (Annotated) 

60.  Equity  will  not  refuse  to  eet  aside 
a  contract  when  it  plainly  appears  that  one 
party  overreached  the  other,  and  gained  an 
unjust  and  undeserved  advantage  which  it 
would  be  inequitable  and  unrighteous  to 
permit  him  to  enforce,  although  the  victim 
owes  his  predicament  largely  to  his  own 
stupidity  and  carelessness.  Stone  v.  Moody, 
5:  799,  84  Pac.  617,  41  Wash.  680. 

( Annotated ) 

61.  An  action  to  set  aside  a  sale  for- 
knowingiy  taking  advantage  of  the  seller 
when  he  was  incapacitated  by  intoxication  is 
one  addressed  to  the  equitable  consideration 
of  the  court.  Swan  v.  Talbot,  17:  1066,  94 
Pac.  238,  152  Cal.  142. 

62.  Equity  will  set  aside  a  sale  of  prop- 
erty obtained  from  a  person  whjn  incapaci- 
tated by  intoxication,  when  the  «on«idera- 
tion  was  grossly  inadequate.  Swan  v.  Tal- 
bot, 17:  1066,  94  Pac.  238,  152  Cal.  142. 

(Annotated) 

63.  Violation  of  an  assurance  by  the 
owner  of  a  tract  of  land  when  selling  lots 
thereon  restricted  to  residental  purposes, 
that  the  whole  tract  will  be  so  restricted, 
is  not  such  fraud  as  to  entitle  grantees  to 
equitable  relief.  Sprague  v.  Kimball,  45: 
962,  100  N.  E.  622,  213  Mass.  380. 

64.  That  the  proofs  of  loss  upon  an  in- 
surance policy  have  placed  a  fraudulently 
excessive  valuation  on  the  property  de- 
stroyed will  not  give  equity  jurisdiction  of 
a  suit  to  enjoin  the  assured  from  main- 
taining an  action  at  law  and  to  secure  an 
adjustment  of  the  loss.  Mechanics'  Ins.  Co. 
V.  C.  A.  Hoover  Distilling  Co.  32:  940,  173 
Fed.  888,  97  C.  C.  A.  400. 

Mistake. 

Necessity  for  restitution,  see  infra,  131. 

Effect  of  laches  to  bar  relief  from  mistake, 
see  Limitation  of  Actions,  49. 

Sufficiency  of  plea  of  mistake  as  against  de- 
murrer, see  Pleading,  635. 

65.  The  mistake  of  the  wife  and  mother 


EQUITY,  I.  d. 


1041 


•f  a  decedent  in  regard  to  the  law  of  de- 
scents and  distributions  of  a  state  other 
than  that  of  their  residence,  which  led  to 
the  apportionment  and  transfer  of  land 
owned  by  the  decedent  at  the  time  of  his 
death  to  the  mother,  when,  under  the  stat- 
ute, the  widow  was  entitled  to  all  of  it, 
is  a  mistake  of  fact  against  which  equity 
will  relieve  unless  some  principle  of  equity 
bars  the  granting  of  such  relief.  Osincup 
V.  Henthorn,  46:  174,  130  Pac.  652,  89  Kan. 
58.  (Annotated) 

66.  An  honest  mistake  of  law  on  the 
part  of  both  contracting  parties,  as  to  the 
effect  of  an  instrument,  which  operates  as  a 
gross  injustice  to  one  party  and  gives  an 
unconscionable  advantage  to  the  other,  is 
one  against  which  equity  will  afford  relief. 
Dolvin  V.  American  Harrow  Co.  28:  785,  54 
S.  E.  706,  125  Ga.  699.  (Annotated) 

67.  That  the  mistake  was  one  of  law  will 
not  prevent  equity  from  relieving  one  of 
several  trustees  of  a  trust  fund,  who  was 
also  a  beneficiary,  from  an  agreement  be- 
tween them  which  all  thought  to  be  valid, 
that,  in  order  to  conserve  the  fund,  they 
would  give  him  a  promissory  note  instead 
of  cash  for  his  share  of  the  estate,  in  con- 
sideration of  his  releasing  them  and  the  es- 
tate from  other  liability,  which  they  had 
no  authority  to  do,  and  which  was  there- 
fore void,  where  rescission  of  the  agree- 
ment will  result  in  no  loss  to  the  estate  or 
other  beneficiaries,  while  refusal  to  rescind 
will  enable  the  other  beneficiaries  to  enricli 
them.selves  at  his  expense.  Reggio  v.  War- 
ren, 32:  340,  93  N.  E.  805,  207  Mass.  .525. 

68.  The  holder  of  a  recorded  deed  to 
real  estate,  who,  with  knowledge  of  a  prior 
unrecorded  deed,  voluntarilj',  and  without 
fraud  or  mistake  of  fact,  satisfies  of  record 
a  mortgage  thereon  owned  by  him,  is  not 
entitled  to  a  reinstatement  of  the  mortgage 
lien  on  the  sole  ground  that  he  erroneously 
assumed  that  his  title  was  superior  to  that 
of  the  holder  of  the  unrecorded  deed  because 
his  deed  was  recorded  first,  as  such  mistake 
was  one  solely  of  law,  against  which  equity 
will  not,  imder  such  circumstances,  afford 
relief.  Errett  v.  Wheeler,  26:  816,  123  N. 
W.  414,  109  Minn.  157. 
Conspiracy. 

69.  A  manufacturer  is  entitled  to  no 
equitable  relief  to  compel  a  labor  union  to 
renew  a  contract  for  the  continued  services 
of  its  members  in  his  business  on  the  same 
terms  accorded  his  competitors,  although 
its  refusal  to  do  so  is  the  result  of  a  con- 
spiracy between  the  union  and  his  competi- 
tors to  ruin  his  business,  and  his  employees 
are  willing  to  continue  work  on  the  basis 
of  the  old  contract.  Saulsberry  v.  Coopers' 
International  Union,  39:1203,  143  S.  W. 
1018,  147  Ky.  170. 

70.  A  combination  and  conspiracy  by  de- 
fendants claiming  title  by  adverse  posses- 
sion to  separate  tracts  of  land,  to  maintain 
by  corrupt  means  their  several  defenses 
against  the  plaintiff,  and  the  great  expense 
and  delay  involved  in  maintaining  separate 
actions  of  ejectment  against  them,  are  not 
sufficient  to  give  a  court  of  equity  jurisdic- 
Digest  1-52  I..B.A.(N.S.)  66 


tion  of  a  suit  to  have  plaintiff  adjudged 
the  owner  of  the  several  tracts,  and  enti- 
tled to  immediate  possession  thereof.  Illi- 
nois Steel  Co.  V.  Schroeder,  14:  239,  113  N. 
W.  51,  133  Wis.  561. 
Trusts. 

Necessity  for  restitution,  see  infra,  131. 
Jurisdiction  to  appoint  successors  to  trus- 
tees, see  Trusts,  69. 
See  also  supra,  67;  infra,  93;  Injunction, 
311. 

71.  Equity  has  jurisdiction  of  a  suit  to 
reach  the  proceeds  of  property  whicli  a 
thief  has  turned  into  cash,  since  he  holds 
them  in  trust  for  the  true  owner.  Light- 
foot  V.  Davis,  29:  119,  91  N.  E.  582,  198  N. 
Y.  261. 

72.  A  devise  or  bequest  to  one  in  trust 
for  another,  with  no  duties  to  perform  and 
no  gift  over,  vests  in  him  merely  a  naked 
legal  title,  and  equity  may  compel  con- 
veyance of  the  estate  to  the  beneficiary. 
Hi'll  V.  Hill,  38:  198,  132  N.  W.  738,  90  Neb. 
43.  (Annotated) 

73.  A  sufficient  execution  of  the  trust  to 
enable  equity  to  enforce  it  arises  where  a 
mutual  benefit  certificate  is  delivered  to  one 
iiaving  no  insurable  interest  in  the  life  of 
the  member,  upon  the  agreement  of  the 
beneficiary  that,  if  he  will  pay  the  dues  and 
make  advances  to  the  member,  he  shall 
have  the  proceeds  when  collected,  and  the 
member  dies  leaving  the  condition  un- 
changed. Kerr  v.  Crane,  40:  692,  98  N.  E. 
783,  212  Mass.   224. 

74.  Equity  may  direct  the  present  pay- 
ment to  the  beneficiary  of  the  income  of  a 
fund  placed  in  trust  to  accumulate  until 
she  reaches  a  specified  age,  if  intellectual 
promise,  the  need  of  education,  and  necessi- 
tous circumstances,  unforeseen  by  the  tes- 
tator, have  wrought  such  a  change  in  her 
condition  that  the  creator  of  the  trust  would 
have  so  directed  had  he  foreseen  the  situa- 
tion in  whicli  she  finds  herself.  Bennett 
V.  Nashville  Trust  Co.  46:  43,  153  S.  W. 
840,  127  Tenn.  126.  (Annotated) 

75.  A  bill  in  equity  will  not  lie  on  behalf 
of  a  materialman  against  a  Tuunicipal  coi- 
poration  to  reach  a  fund  which  is  retained 
under  the  provisions  of  a  contract  for  a 
public  improvement,  inserted  under  the 
sanction  of  a  municipal  ordinance,  which 
required  the  contractor  at  time  of  settlf- 
ment  to  produce  vouchers  showing  settle- 
ment in  full  for  all  material  and  labor  em- 
ployed in  the  contract,  and  authorizing  the 
retention  of  funds  to  pay  claims  not  shown 
to  have  been  satisfied.  Lombard  Governor 
Co.  V.  Baltimore,  48:  678,  88  Atl.  140,  121 
Md.  303. 

76.  No  such  fiduciary  relation  exists  be- 
tween the  tax  collector  of  a  township  and 
the  township  in  respect  to  tax  moneys  col- 
lected by  him  for  its  use  as  to  call  for  the 
exercise  of  equitable  jurisdiction.  Frank- 
lin Twp.  V.  Crane  (N.  J.  Err.  &  App. )  43: 
604,  85  Atl.  408,  80  N.  J.  Eq.  509. 

(Annotated ) 
VSTills. 
Retention  of  jurisdiction,  see  infra,  115,  116. 

77.  A  court  of  chancery  will  refuse  to  en- 


104^ 


EQCITY,  t'lB,  f. 


tertain  a  bill  merely  to  construe  a  will  in 
which  no  trust  is  involved.  Frank  v.  Frank, 
19:  176,  113  S.  W.  640,  88  Ark.  1. 

78.  Equity  has  no  jurisdiction  of  a  bill 
brought  solely  for  the  construction  of  a  will 
which  disposes  merely  of  legal  estates.  Hart 
V.  Darter,  15:  599,  58  S.  E.  590,  ^07  Va. 
310.  (Annotated) 

79.  Although  a  proceeding  to  contest  a 
will  must  be  instituted  in  tlie  county  court, 
the  court  of  chancery  in  which  a  proceeding 
for  escheat  is  instituted  may,  upon  the  ex- 
istence of  the  will  appearing,  stay  the  es- 
cheat proceeding  to  await  the  contest  of  the 
will  in  the  county  court.  State  v.  Lancas- 
ter, 14:  991,  105  S.  W.  858,  119  Tenn.  638. 

e.  To  prevent  irreparable  damage. 

(See  also   same  heading   in  Digest  L.R.A». 
1-70.) 

See  also  infra,  84,  87;   Injunction. 

80.  Irreparable  injury  which  will  give 
jurisdiction  to  equity  is  not  shown  by  the 
fact  that  a  statute  forbids  the  sale  of  in- 
toxicating liquor  within  4  miles  of  a  school, 
so  far  as  it  affects  manufacturers  whose 
product  can  be  kept  for  years  and  is  largely 
disposed  of  in  other  states.  Kelly  v.  Con- 
nor, 25:  201,  123  S.  W.  622,  122  Tenn.  339. 

81.  Mere  necessity  to  await  the  pleasure 
of  the  holder  of  a  void  instrument  to  com- 
mence action  thereon,  though  it  raise  a  pre- 
sumption of  probable  annoyance  and  incon- 
venience, does  not  raise  a  presumption  of 
irremediable  injury  in  a  pecuniary  sense,  so 
as  to  give  equity  jurisdiction  to  cancel  le 
instrument.  Johnson  v.  Swanke,  5:  1048, 
IQ7  N.  VV.  481,  128  Wis.  68. 

/.  To   cancel    instruments. 

(See  also   same   heading    in   Digest    L.R.A. 
1-10.) 

On  ground  of  fraud,  see  supra,  57-64. 
Effect  of  irreparable  injury,  see  supra,  81. 
Retention  of  jurisdiction,  see  infra,  110,  111, 

117. 
Multifariousness  in  bill,  see  Action  or  Suit, 

128. 
As  to  cancelation  of  instruments  generally, 

see  CoNTKACTS,  V.  c. 
Surplusage  in  pleading,  see  Pleading,  141, 
Jurisdiction  to  reform  instruments,  see  Re- 

FOBMATION     OF    INSTRUMENTS. 

See  also  Injunction,  267,  275. 

82.  A  court  of  equity  has  jurisdiction 
to  cancel  a  certificate  of  birth  filed  in  a  bu- 
reau of  vital  statistics  by  the  attending  phy- 
sician, who  was  imposed  upon  by  the  false 
statements  of  the  mother  as  to  the  pater- 
nity of  the  child.  Vanderbilt  v.  Mitchell 
(N!  J.  Err.  &  App.)  14:  304,  67  Atl.  97,  72 
N.  J.  Eq.  910.  (Annotated) 

83.  A  medical  superintendent  of  the  bu- 
reau of  vital  statistics  may  be  required  by 
a  court  of  equity  to  cancel  of  record  a  cer- 
tificate of  birth  which  falselv  states  that 
Digest  1-52  I<.R.A.(N.S.)  ' 


the  complainant  is  the  father  of  the  child. 
Vaiidnbilt  V.  Mitchell  (N.  J.  Err.  &  App.) 
14:  304,  07  Atl.  97,  72  N.  J.  Eq.  910. 

84.  A  special  necessity  for  the  aid  of 
equity  to  cancel  a  note  given  for  a  horse  is 
not  shown  by  the  fact  that  the  horse  is 
worthless,  and  its  continuance  in  possession 
of  the  piu'chaser  will  be  a  prejudicial  ex- 
pense to  him,  since  he  may  declare  a  re- 
scission, and,  after  notice,  sell  the  horse,  re- 
imburse himself  for  the  outlay,  and  hold 
the  balance  for  the  use  of  the  seller. 
Johnson  v.  Swanke,  5:  1048,  107  N.  W.  481, 
128  Wis.  68. 

85.  An  oil  and  gas  lease  will  not  be  can- 
celed for  failure  promptly  to  develop  the 
property,  if  there  is  nothing  to  show  that 
a  rei'.iedy  in  damages  will  not  be  adequate. 
Howerton  v.  Kansas  Natural  Gas  Co.  34: 
34,  106  Pac,  47,  81  Kan.  553. 

(Annotated) 

86.  An  action  after  a  loss  under  an  in- 
surance policy,  to  cancel  the  policy  for 
fraud,  or  to  restrain  a  suit  at  law  thereon, 
cannot  be  maintained  by  the  insurer  in  the 
absence  of  some  special  circumstances  of  a 
nature  to  cause  irreparable  loss  to  him  if 
he  is  not  permitted  a  remedy  in  equity. 
Bankers  Reserve  Life  Co.  v.  Omberson,  48: 
265,  143  N.  W.  735,  123  Minn.  285, 

(Annotated) 

87.  No  special  circumstances  of  a  nature 
to  cause  irreparable  loss,  so  as  to  entitle  an 
insurer  to  maintain  an  action  in  equity  to 
cancel  a  policy  issued  by  it  after  a  loss  has 
occurred  thereon,  is  shown  by  a  complaint 
whicli  alleges  that  the  insured  fraudulently 
represented  that  he  had  been  in  good  health, 
and  that  the  insurer,  in  reliance  upon  these 
representations,  issued  the  policy,  and  that 
the  beneficiary  knew  of  such  fraudulent  rep- 
resentation, and  was  threatening  to  bring 
suit.  Bankers  Reserve  Life  Co.  v.  Omber- 
son, 48:  265,  143  N.  W.'735,  123  Minn.  285. 

88.  Equity  will  not  cancel  a  pretended 
contract  releasing  an  employer  from  liabili- 
ty for  personal  injury  to  an  employee,  by 
which  the  latter  claims  to  be  entitled  to 
wages  during  disability,  where  an  action  has 
been  brought  to  recover  them.  Sunset 
Teleph.  &  Teleg.  Co.  v.  Williams,  22:  374, 
162  Fed.  301,  89  C.  C.  A.  281. 

Deeds. 

89.  The  unauthorized  alteration  of  a 
deed  by  the  grantee  so  as  to  make  it  de- 
scribe land  not  conveyed  thereby  will  not 
entitle  the  grantor,  by  a  suit  in  equity,  to 
set  aside  his  deed  and  be  reinvested  with 
the  title  conveyed.  Waldron  v.  Waller, 
32:  284,  64  S.  E.  964,  65  W.  Va.  605. 

90.  Equity  has  jurisdiction  to  cancel  an 
instrument  of  title  to  land,  although  void 
on  its  face,  at  the  suit  of  one  in  possession 
under  good  title.  Whitehouse  v.  Jones,  12: 
49,  55  S.  E.  730,  60  W.  Va.  GSO. 

91.  A  conveyance  of  land  founded  both 
upon  a  money  consideration  and  an  express 
written  agreement  by  the  grantees  that  as  a 
part  of  the  consideration  they  will  take  care 
of  the  grantor  "as  long  as  he  lives,  provid- 
ing him  with  a  home  and  rendering  him 
whatever  services  he  requires,"  constitutes  a 


EQUITY,  I.  g. 


10-13 


continuing  contractual  obligation  of  the 
grantees  for  the  violation  of  wliicli  the 
grantor  has  his  action  at  law  for  damages, 
but  such  violation  doea  not  rende.  the  fee 
conveyed  by  the  deed  conditional,  so  that  a 
bill  to  set  aside  the  conveyance  is  sustain- 
able in  equity.  Dunn  v.  Ryan  (N.  J.  Err.  & 
App.)  49:  1015,  88  Atl.  1025,  82  N.  J.  Eq. 
356. 

92.  Failure  of  a  grantor  to  read  a  deed 
before  signing  it  does  not  bar  relief  there- 
from in  equity,  on  the  ground  of  negligence 
or  estoppel,  when  the  circumstances  attend- 
ing the  transaction  were  such  as  to  lead 
him  to  believe  that  the  character  and  ex- 
tent of  the  conveyance  was  entirely  different 
from  what  it  reall^'  was.  Hale  v.  Hale, 
14:  221,  59  S.  E.  1056,  62  W.  Va.  609. 

93.  The  owner  of  an  equitable  title  to 
land,  having  the  right  to  call  in  the  legal 
title,  may  maintain  a  suit  in  equity  to  com- 
pel the  conveyance  of  the  legal  title  to  him 
and  cancel  invalid  instruments  constitut- 
ing cloud  thereon,  although,  the  trust  being 
dry,  he  might  maintain  ejectment  on  the 
presumption  that  the  legal  title  had  been 
conveyed  to  him,  or  under  the  rule  that  a 
stranger  cannot  maintain  his  possession 
against  superior  title  on  mere  defects  in  the 
claim  of  the  opposite  party  to  the  owner- 
ship of  such  title.  Blake  v.  O'Neal,  16: 
1 147,  61  S.  E.  410,  63  W.  Va.  483. 

fir.  To  avoid  multiplicity  of  suits. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Injunction  to  avoid  multiplicity  of  suits  as 
infringement  of  right  to  trial  by  jury, 
see  Jury,  48. 

To  complain  that  facts  were  not  submitted 
to  jury,  see  Trial,  708. 

See  also  Injunction;  Nuisances,  130,  134. 

94.  Equity  will  not  interfere  to  prevent 
a  multiplicity  of  suits,  if  the  bringing  of 
one  or  many  suits  is  a  matter  for  complain- 
ants' election,  there  being  no  necessity  for 
a  multiplicity.  Gulf  Compress  Co.  v.  Harris, 
Cortner,  &  Co.  24:  399,  48  So.  477,  158  Ala. 
343. 

95.  Jurisdiction  in  equity  to  prevent  a 
multiplicity  of  suits  does  not  arise  merely 
because  each  of  several  parties  jointly  and 
severally  liable  on  an  instrument  may  be 
independently  sued.  Johnson  v.  Swanke, 
5:  1048,  107  N.  W.  481,  128  Wis.  68. 

96.  A  mere  community  of  interest  in  the 
questions  of  law  and  of  fact  involved  in 
several  actions  at  law  is  not  sufficient  to 
give  equity  jurisdiction  to  enjoin  such  ac- 
tions and  settle  the  matter  itself  for  the 
prevention  of  a  multiplicity  of  suits.  Roa- 
noke Guano  Co.  v.  Saunders,  35:  491,  56  So. 
198,  173  Ala.  347. 

97.  Equity  will  not,  upon  the  ground 
of  preventing  a  multiplicity  of  suits,  enter- 
tain a  suit  to  have  the  plaintiff  adjudged 
the  owner,  and  entitled  to  immediate  pos- 
session, of  each  of  numerous  separate  tracts 
of  land  to  which  the  respective  defendants 
Digest  1-52  KR.A.(N.S.) 


claim  title  by  adverse  possession,  although 
each  of  the  defendants  seeks  to  tack  his 
possession  to  the  alleged  entry  and  adverse 
possession  of  the  same  individual,  through 
whom  they  all  claim,  and  notwithstanding 
that,  at  the  time  of  the  commencement  of 
the  equity  suit,  eighty-four  ejectment  ac- 
tions commenced  by  plaintiff  against  the 
several  defendants  were  pending,  and  that, 
in  other  similar  actions,  judgment  had  been 
rendered  for  the  plaintiff,  and  that  in  none 
of  them  had  the  title  to  the  land  been  ad- 
judicated to  be  in  the  defendant  or  defend- 
ants. Illinois  Steel  Co.  v.  Scliroeder,  14: 
239,  113  N.  W.  51,  133  Wis.  561. 

(Annotated) 

98.  An  action  by  the  receiver  of  a  mu- 
tual insurance  company  organized  under 
laws  which  make  it  a  body  corporate  and 
give  its  members  the  right  of  stockholders, 
against  such  members,  to  recover  an  as- 
sessment made  by  the  court  in  order  to  pay 
the  liabilities  of  the  insolvent  corporation, 
may  properly  be  brought  in  a  court  of  equi- 
ty in  the  same  manner  as  an  action  by  the 
receiver  of  a  stock  corporation  against  its 
stockholders  for  a  like  purpose,  and  in  such 
case  summons  may  be  issued  out  of  the 
county  in  which  the  action  is  brought  to  any 
other  county  in  the  state  in  which  a  de- 
fendant resides  or  may  be  summoned.  Mc- 
Call  V.  Bowen,  40:  781,  135  N.  W.  1014,  91 
Neb.  241.  (Annotated) 

99.  The  receiver  of  an  insolvent  hail  in- 
surance company  whose  charter  makes  its 
members  liable  for  the  losses  and  expenses 
of  the  company,  each  to  the  extent  of  his 
obligation,  cannot  maintain  a  single  equity 
suit  against  all,  to  compel  them  to  pay  as- 
sessments which  had  been  levied  against 
them,  either  by  the  directors  or  the  receiv- 
er; at  least,  where  the  statute  provides 
for  an  action  at  law  against  each  member 
who  neglects  to  pav  his  obligations.  Burke 
V.  Scheer,  33:  1057,"^  130  N.  W.  962,  89  Neb. 
80.  (Annotated) 

100.  One  of  several  companies  which  have 
issued  policies  of  insurance  on  one  piece  of 
property,  which  provide  liability  in  propor- 
tion to  the  loss,  cannot,  in  case  of  loss, 
maintain  a  bill  in  equity  to  compel  an  ad- 
justment of  the  liability  on  the  several  poli- 
cies in  one  suit,  on  the  theory  that  a  mul- 
tiplicity of  suits  will  thereby  be  prevented. 
Scruggs  &  Echols  v.  American  Central  Ins. 
Co.  36:  92,  176  Fed.  224,  100  C.  C.  A.   142. 

101.  Equity  has  jurisdiction  on  the  ground 
of  preventing  a  multiplicity  of  suits,  of  a 
suit  to  adjust  the  respective  liabilities  of 
several  insurers  who  have  issued  policies 
upon  a  manufacturing  plant,  which  are  di- 
vided between  the  several  items  of  build- 
ing, machinery,  stock,  and  fixtures,  the  re- 
spective items  being  covered  by  more  than 
one  policy  and  the  policies  providing  a 
pro  rata  liability,  where  all  the  insurers 
set  up  a  common  defense  against  all  lia- 
bility because  of  noncompliance  with  con- 
ditions in  the  policies;  and  it  is  imma- 
terial that  some  insurers  have  no  interest 
in  all  the  items,  or  that  a  court  of  law 
could  afford   a  remedy,  and  might  consoli- 


1044 


EQUITY,  I.  h. 


date  the  actions  if  all  were  brought  at  the 
same  time.  Dixie  F.  Ins.  Co.  v.  American 
Confectionery  Co.  34:  897,  136  S,  W.  915, 
124  Tenn.  247. 

102.  Several  insurance  companies  having 
policies  providing  for  proportional  liability 
on  property  in  which  a  loss  has  occurred 
cannot  join  in  a  bill  in  equity  to  enjoin  the 
assured  from  maintaining  actions  at  law, 
and  to  adjust  the  amount  of  their  respective 
losses  in  one  suit,  on  tlie  tlieory  that  they 
will  thereby  save  a  multiplicity  of  suits. 
Mechanics'  Ins.  Co.  v.  C.  A.  Hoover  Dis- 
tilling Co.  32:  940,  173  Fed.  888,  97  C.  C. 
A.  400.  (Annotated) 

103.  A  bill  in  equity  will  not  lie  in  behalf 
of  a  receiver  of  a  club  against  its  members 
to  recover  from  them  dues  owing  under  its 
by-law,  and  the  purchase  money  of  sup- 
plies received  from  it,  since  the  claims  are 
cognizable  at  law,  and  are  not  common  in 
such  sense  that  they  can  be  joined  to  pre- 
vent a  multiplicity  of  suits.  Rogers  v. 
Boston  Club,  28:  743,  91  N.  E.  321,  20.") 
Mass.   201. 

104.  Claims  by  the  receiver  of  a  social 
club  against  its  members  for  unpaid  dues 
cannot  be  joined  in  an  equity  proceeding 
against  all  to  prevent  a  multiplicity  of 
suits,  but  must  be  enforced  by  separate  ac- 
tions at  law.  Rogers  v.  Boston  Club,  28: 
743,  91  N.  E.  321.  205  Mass.  261. 

(Annotated) 

105.  The  jurisdiction  of  equity  to  pre- 
vent a  multiplicity  of  suits  does  not  ex- 
tend to  the  entertainment  by  that  court  of 
a  bill  by  a  manufacturer  to  enjoin  separate 
suits  by  neighboring  property  owners  to  re- 
cover damages  for  injuries  to  their  prop- 
erty by  noxious  fumes  from  the  establisli- 
ment,  and  the  making  of  all  compensation 
in  the  one  suit.  Roanoke  Guano  Co.  v. 
Saunders,  35:  491,  56  So.  198,  173  Ala.  347. 

( Annotated ) 

h.  Retaining  jurisdiction. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Keeping  alive  equitable  suit  upon  failure 
of  cross  bill  to  establish  right  to  equi- 
table relief,  see  Pleading,  535. 

106.  A  cause  which  is  brought  in  equity 
in  the  good  faith  belief  that  equitable  re- 
lief is  obtainable  on  the  facts  will  not  be 
dismissed  because  good  cause  for  legal  re- 
lief alone  is  shown,  if  objection  to  the  equi- 
table jurisdiction  is  not  taken  by  answer 
or  demurrer.  Knauf  &  Tesch  Co.  v.  Elk- 
hart Lake  Sand  &  Gravel  Co.  48:  744,  141 
N,  W.  701,  153  Wis.  306. 

107.  Where  equity  is  by  statute  denied 
jurisdiction  of  claims  for  injury  to  prop- 
erty involving  unliquidated  damages,  it  can- 
not retain  a  suit  for  injunction  and  dam- 
ages for  the  maintenance  of  a  nuisance,  in 
order  to  assess  the  damages,  if  the  right  to 
the  injunction  fails.  Union  Planters'  Bank 
Digest  1-52  LuR.A.(N.S.) 


&  T.  Co.  V.  Memphis  Hotel  Co.  39:580,  139 
S.  W.  715,  124  Tenn.  649. 

108.  Equity  has  jurisdiction  of  a  suit 
brought  by  tlie  senior  lessee  against  his 
lessor  and  a  junior  lessee  of  the  same 
land  from  the  same  lessor,  for  tlie  purpose 
of  enjoining  the  removal  of  the  oil  from  the 
leased  premises,  and  for  specific  execution 
of  his  lease;  and,  in  such  a  suit,  the  court 
can  settle  the  conflicting  claims  of  the  les- 
sees, and  grant  such  relief  to  either  claim- 
ant as  the  pleadings  and  proof  may  war- 
rant. Smith  V.  Root,  30:  176,  60  S.  E.  1005, 
66   W.  Va.  633. 

109.  Equity  may,  in  a  suit  by  a  railroad 
company  to  enjoin  one  from  whom  it  has 
purchased  a  right  of  way  from  interfering 
with  its  enjoyment  thereof,  after  it  has  for- 
feited it  because  of  breach  of  condition  sub- 
sequent, assess  the  damages  and  transfer  the 
title  to  the  railroad  company  as  in  an  emi- 
nent domain  proceeding,  if,  under  protec- 
tion of  a  temporary  injunction,  the  road 
has  been  completed  and  put  in  operation 
so  that  refusal  of  the  injunction  will  inter- 
fere with  public  convenience.  Oregon  R. 
&  Nav.  Co.  v.  McDonald,  32:  117,  112  Pac. 
413,  58  Or.  228. 

110.  One  seeking  the  aid  of  a  court  of 
equity  to  secure  the  cancelation  of  notes  al- 
leged to  have  been  misappropriated  cannot 
question  the  jurisdiction  of  the  court  to 
enter  upon  a  cross  bill  a  money  judgment 
against  him  for  the  amount  due  on  the 
notes.  Zollman  t.  Jackson  Trust  &  Sav. 
Bank,  32:  858,  87  N.  E.  297,  238  111.  290. 

111.  Having  aaquired  jurisdiction  to  pre- 
vent a  destruction  of  mining  property  by 
wrongful  methods  of  operating  the  mine 
under  a  lease,  equity  may  retain  the  case, 
and  cancel  the  lease  as  a  cloud  on  title. 
Big  Six  Development  Co.  v.  Mitchell,  i:  332, 
138  Fed.  279,  70  C.  C.  A.  569. 

112.  Equity  may  retain  a  suit  to  compel 
the  set-ofl',  against  judgments  obtained  by  a 
corporation  against  an  individual  for  con- 
verting its  logs,  of  claims  against  the  corpo- 
ration in  favor  of  a  partnership  of  which 
the  individual  was  a  member,  for  similar 
conduct,  where  a  discovery  of  the  acts  of 
the  corporation  is  necessary.  Nixon  v.  Clear 
Creek  Lumber  Co.  9:  1255,  43  So.  805,  150 
Ala.  602. 

113.  In  the  absence  of  objection  by  either 
party,  a  court  of  equity  which  has  appoint- 
ed a  receiver  may  entertain  a  petition  to  as- 
certain the  damages  for  which  the  property 
is  liable  because  of  his  tort,  and  no  con- 
stitutional right  to  trial  by  jury  is  thereby 
interfered  with.  Shedd  v.  Seefeld,  13:  709, 
82  N.  E.  580,  2.30  111.  118.  (Annotated) 

114.  Equity  has  jurisdiction  of  a  suit 
by  one  of  several  insurers  of  different  por- 
tions of  a  manufacturing  plant,  to  set  aside 
an  award  of  appraisers  on  the  ground  of 
fraud,  and,  having  taken  jurisdiction,  it 
may  proceed  to  consider  defenses  to  the  lia- 
bility because  of  breach  of  conditions  in  the 
policy,  and  adjust  the  loss  between  the  sev- 
eral insurers  if  liability  is  found  to  exist. 
Dixie   F.   Ins.  Co.   v.   American   Confection- 


EQUITY,  1.  li. 


1045 


ery  Co.   34:  897,   136  S.  W.  915,   124  Tenn. 
247. 

115.  A  court  of  chancery  in  which  is  in- 
stituted a  proceeding  to  declare  an  escheat 
of  property  claimed  under  a  will  has,  as  in- 
cidental to  the  decision  of  the  right  to  the 
property,  jurisdiction  to  determine  the  ques- 
tion of  fraud  in  procuring  the  will.  State  v. 
Lancaster,  14:  951,  105  S.  W.  858.  119  Tenn. 
638. 

116.  A  chancery  court  having  assumed 
jurisdiction  of  a  suit  involving  the  right 
to  compel  a  beneficiary  under  a  will  to 
elect  between  the  provision  in  his  favor 
and  a  claim  to  property  covered  by  the 
will  which  he  alleges  belonged  to  him  may 
retain  the  case  to  settle  the  amount  of 
mesne  profits  to  which  he  is  entitled  and 
the  amount  to  be  allowed  those  who  had 
been  in  possession  for  betterments.  Mc- 
Donald V.  Shaw,  28:  657f  121  S.  W.  935, 
92  Ark.  15. 

117.  An  equitable  petition  for  the  annul- 
ment of  a  marriage  and  for  the  cancelation 
of  a  bond  executed  by  the  husband  prior  to 
his  marriage  and  pursuant  to  Ga.  Penal 
Code  1895,  §  388,  for  the  purpose  of  stop- 
ping a  threatened  prosecution  for  the  al- 
leged seduction  of  the  woman  whom  he  mar- 
ried, but  which  fails  to  allege  a  cause  of 
action  in  these  respects,  cannot  be  retained 
as  a  statutory  proceeding  for  divorce  on  the 
ground  of  adultery,  when  it  lacks  a  juris- 
dictional averment  required  in  a  libel  for 
divorce,  and  contains  no  specific  prayer  for 
divorce.  Griflin  v.  Griffin,  16:  937,  61  S.  E. 
16,  130  Ga.  527. 

118.  Tlie  nonestablishment  of  the  right  to 
a  lien  in  a  bona  fide  proceeding  by  a  subcon- 
tractor to  enforce  a  lien  against  the  proper- 
ty of  the  owner  for  work  performed  for  the 
contractor  does  not  defeat  the  jurisdiction 
of  the  court  to  render  a  personal  decree 
against  the  contractor  for  the  amount  found 
due  by  him.  Johnston  &  Grommett  Bros. 
V.  Bunn,  19:  1064,  62  S.  E.  341,  108  Va.  490. 

(Annotate^) 

119.  An  action  to  enjoin  majority  stock- 
holders of  a  corporation  from  proceeding  to 
•wind  it  up  will  not  be  dismissed,  even  though 
such  relief  cannot  be  granted,  if  because  of 
disputes  as  to  indebtedness  and  other  mat- 
ters arising  in  the  action,  which  are  in  part 
incident  to  the  proper  winding  up  and  ad- 
justment of  the  corporate  affairs,  it  is  prop- 
er for  the  court  under  its  statutory  authori- 
ty to  take  charge  of  the  winding  up  pro- 
ceedings. White  v.  Kincaid,  23:  1177,  63  S. 
E.  109,  149  N.  C.  415. 

120.  In  case  of  an  action  for  equitable 
relief  in  the  nature  of  protecting  the  right 
of  a  person  in  possession  of  an  office  from 
forcible  interference  until  the  title  de  jure 
shall  have  been  judicially  determined,  and 
it  appearing  that  such  title  must  be  deter- 
mined before  the  entire  controversy  between 
the  parties  can  be  set  at  rest,  and  as  mat- 
ter of  fact  the  title  may  as  well  or  better 
be  settled  in  the  pending  action  as  in  an- 
other commenced  for  legal  relief,  the  court 
may,  and  should,  proceed  to  settle  the  entire 
Digest  1-52  I..B.A.(N.S.) 


controversy.      Ekern    v.    jSIcGovern,    46:  796, 
142  N.  W.  595,  154  Wis.  157. 
Specific  performance. 

121.  A  court  of  equity  which  has  properly 
acquired  jurisdiction  of  a  cause  to  enforce 
specific  performance  of  a  contract  may  pro- 
ceed to  administer  complete  justice  by 
granting  a  mandatory  or  restraining  in- 
junction, or  by  awarding  damages  upon 
proper  allegations  and  proofs.  Taylor  v. 
Florida  East  Coast  R.  Co.  16:  307,  45  So. 
574,  54  Fla.  635. 

122.  The  rule  that  a  court  of  equity,  hav- 
ing acquired  jurisdiction  of  a  suit  to  com- 
pel specific  performance  of  an  agreement  to 
convey  real  estate,  will,  upon  failure  of 
proof  of  the  agreement,  and  a  mere  parol 
license  to  place  a  building  thereon  appear- 
ing, retain  jurisdiction  to  prevent  the 
licensor  from  removing  the  building  until 
he  had  compensated  the  licensee,  will  not 
be  applied  against  one  who  has  purchased 
the  property  from  the  licensor.  Shipley  v. 
Kink,  2:  1002,  62  N.  E.  360,  102  Md.  219. 

123.  A  bill  for  specific  performance  of  a 
contract  will  not  be  retained  for  the  assess- 
ment of  damages  where  a  case  is  not  made 
for  specifi.c  performance,  and  no  other-  spe- 
cial equity  is  showti  which  will  support  ju- 
risdiction of  the  court.  Broraberg  v.  Eugen- 
otto  Construction  Co.  19:  1175,  48  So.  60, 
158  Ala.  323. 

124.  Equity  will  not  grant  pecuniaiy  com- 
pensation in  lieu  of  specific  performance  of 
a  contract,  unless  the  case  presented  is  one 
for  equitable  interposition,  and  such  as 
would  entitle  plaintiff  to  specific  perform- 
ance but  for  intervening  facts  which  pre- 
vent it.  Markn  v.  Gates,  14:  317,  154  Fed. 
481,  83  C.  C.  A.  321. 

125.  Upon  refusal  of  specific  performance 
of  a  contract  to  sell  real  estate  because  of 
inequitable  conduct  on  the  part  of  complain- 
ant, the  bill  need  not  be  retained  for  the  as- 
sessment of  damages,  but  may  be  dismissed, 
and  complainant  left  to  his  remedy  at  law. 
Banaghan  v.  Malaney,  19:  871,  85  N.  E.  839, 
200  Mass.  40. 

Custody  of  children  in  case  of  divorce. 

126.  A  bill  by  a  man  against  his  wife, 
to  establish  a  right  to  the  custody  of  their 
children,  cannot  be  retained  by  a  court  of 
equity  as  a  petition  for  the  appointment 
of  a  guardian  for  them.  Thomas  v. 
Thomas,  35:1158,  95  N.  E.  345,  250  111.  354. 

127.  The  filing  in  a  suit  for  divorce  of  a 
cross  bill  seeking  custody  of  the  children 
will  not  empower  the  court  to  refuse  to 
permit  the  withdrawal  of  the  original  bill, 
and  enable  it  to  retain  jurisdiction  to  make 
such  order  after  an  attempted  withdrawal, 
where  the  statute  authorizes  orders  con- 
cerning custody  of  the  children  only  during 
pendency  of  the  suit,  or  upon  final  decree, 
where  the  divorce  is  granted.  Thomas  v. 
Thomas.  35:1158,  95  N.  E.  345,  250  111.  3.54. 

128.  Equity  has  no  jurisdiction  of  a  pro- 
ceeding between  husband  and  wife  for  the 
custody  of  the  children  of  the  marriage 
which  will  enable  it  to  retain  a  cross  bill 
seeking  such  relief  after  the  attempted 
withdrawal  of  the  divorce  suit  in  which  it 


1046 


EQUITY,  ii.,  111.  a. 


was  filed.     Thomas  v.  Thomas,  35:1158,  95 
N.  E.  345,  250  111.  354.  (Annotated) 

Unfair  competition. 

129.  A  court  of  equity,  upon  granting  an 
injunction  to  restrain  the  use  of  a  co-rpo- 
rate  name  as  unfair  competition,  may  also 
decree  an  accounting  of  the  profits  made  by 
the  defendant  by  means  of  the  unfair  com- 
petition; but  it  cannot,  in  addition  thereto, 
decree  that  an  accounting  shall  be  raade  for 
damages  suffered  by  the  complainant.  L. 
Martin  Co.  v.  L.  Martin  &  W.  Co.  (N.  J. 
Err.  &  App.)  21:  526,  72  Atl.  394,  75  N.  J. 
Eq.  257.  (Annotated) 

//.  Transfers  between  law  and  equity. 

(See  also   same   heading   in   Digest   L.R.A. 
1-10.) 

Joinder  of  legal  and  equitable  actions,  see 

Action  ob  Suit,  122,  123. 
Error    in    transferring    action    to    chancery 

court,  see  Appeal  and  Error,  1038. 

III.  Equity  principles. 

a.  In  general. 

(See  also   same   heading   in  Digest  L.R.A. 
1-10.) 

130.  Equity  will  not  aid  one  in  recover- 
ing money  which  he  has  given  to  his  mis- 
tress in  consideration  of  their  sexual 
intimacy.  Piatt  v.  Elias,  11:  554,  79  N.  E. 
1,   186   N.   Y.   374. 

Restitution. 

See  also  Infants,  92,  93. 

131.  That  a  beneficiary  of  a  trust  who  re- 
leased the  estate  from  other  liability  upon 
receiving  a  note  for  the  amount  due  him 
from  the  trustees,  which  was  void  for  lack 
of  authority,  receives  a  small  amount  of 
cash,  does  not  prevent  his  maintaining  a 
bill  to  rescind  for  mutual  mistake,  and  he 
is  not  required  to  return  the  amount  so 
received  before  relief  will  be  granted,  where 
he  was  absolutely  entitled  to  the  cash,  and 
the  trustees  would  have  to  pay  it  back  at 
once  were  it  returned  to  them.  Reggio  v. 
Warren,  32:  340,  93  N.  E.  805,  207  Mass. 
525. 

Doing  or  offering  equity. 
See  also  Mortgage,  31. 

132.  The  maxim  that  "he  who  seeks  equi- 
ty must  do  equity"  has  no  application  to 
heirs,  in  an  action  brought  against  them  to 
establish  a  right  under  a  timber  lease  ex- 
ecuted by  their  father  upon  land  to  which 
they  assert  a  legal  title  derived  from  him 
by  prior  gift  or  conveyance,  so  as  to  require 
them  to  tender  back  that  ^ art  of  the  pur- 
chase money  paid  to  the  father  and  re- 
ceived by  them  from  his  executor.  Garbutt 
V.  Mayo,  13:  58,  57  S.  E.  495,  128  Ga.  269. 

133.  In  an  action  against  heirs  to  estab- 
lish a  right  under  a  timber  lease  executed 
by  their  father  upon  property  belonging  to 
them  and  to  which  they  assert  title,  they 
are  not  entitled  to  injunctive  relief  asked 
against  the  plaintiffs  by  way  of  cross  bill. 
Digest   1-52  L.R.A.(N.S.) 


unless,  in  conformity  with  the  principle 
that  ''he  who  seeks  equity  must  do  equity," 
they  tender  sums  received  by  them  from 
their    father's    executor    and    consisting    of 


the  pureliase  monev   paid  by  the  plaintiffs 
.-       ...  ^     .     .  |j 

57  8.  K.  495.  128  Ga.  269. 


for    the    timber.     Garbutt   v.    Mayo,    13:  58, 


134.  Before  one  who  has  conveyed  land 
absolutely  as  .security  for  a  loan  can  se- 
cure the  aid  of  equity  to  defeat  an  action 
by  the  grantee  for  possession  of  the  prop- 
erty after  the  debt  has  become  barred  by 
the  statute  of  limitations,  he  will  1 1  re- 
quired to  recognize  the  debt  as  an  existing 
lien  on  the  land.  Sturdivant  v.  Reece, 
11:825,   103  S.  W.  732,  83  Ark.  27«. 

(Annotated) 

135.  A  person  who  has  secured  a  loan 
from  a  corporation  doing  business  within  a 
state  with  the  laws  of  which  it  has  failed 
to  qualify  so  as  to  entitle  it  to  do  business 
therein,  and  who  has  failed  to  pay  same,  as 
provided  by  his  contract,  cannot  admit  the 
contract  and  the  indebtedness,  and  at  the 
same  time,  prosecute  an  action  to  cancel 
the  mortgage  given  to  secure  the  indebted- 
ness, solely  on  the  ground  that  the  corpora- 
tion failed  to  comply  with  the  statute  in 
qualifying  to  do  business.  Tarr  v.  West- 
ern Loan  &  Sav.  Co.  21:  707,  99  Pac.  1049, 
15   Idaho,   741.  (Annotated) 

136.  Equity  will  not  enforce  a  lien  for 
purchase  money  reserved  on  land  in  a  deed 
of  general  warranty,  when  a  part  of  the 
land  had  been  before  sold  by  the  grantor 
to  other  persons  whose  right  is  superior  to 
that  of  the  grantee,  without  abatement 
from  the  purchase  money  of  the  value  of 
the  land  so  lost  to  the  grantee.  Smith  v. 
Ward,  33:  1030,  66  S.  E.  234,  66  W.  Va. 
190. 

137.  Where  a  tenant  in  possession  took 
a  tax  deed  of  the  land,  and  conveyed  to 
another,  maintaining,  however,  his  proper 
relation  to  the  landlord,  and  an  action  of 
ejectment,  to  which  the  landlord  was  not  a 
party,  was  brought  against  his  grantees  by 

I  one  who  had  obtained  a  quitclaim  deed  from 

;  the  landlord's  grantor,  in  which  the  tax  deed 
was  set  aside  and  the  tax  title  purchaser 
given  a  lien  for  taxes,  which  the  ejectment 

;  claimant  was  required  to  satisfy,  which  he 
did,  and  then  conveyed  to  another,  although 

I  he   never   obtained   possession   of  the   land, 

I  and  the  tax  title  purchaser  then  procured 
a  conveyance  from  the  landlord  owner,  and 

I  brought  an  action  to  quiet  title  against  the 
grantee  of  the  ejectment  claimant, — the  lat- 

i  ter  should  be  regarded  as  the  equitable  as- 
signee of  the  lien  for  taxes,  and  equitable 
relief  to  the  plaintiff  should  be  conditioned 
upon  its  satisfaction.  Ditlinger  v.  Miller, 
26:  595,  105  Pac.  20,  81  Kan.  9. 
Legal  right  prevails. 

138.  Courts  of  equity  recognize  legal 
titles,  and  such  titles  prevail  therein  over 
equitable  ones.  Depiie  v.  Miller,  23:  775,  64 
S.  E.  740,  65  W.  Va.  120. 

139.  Courts  of  equity  respect  title  to  land 
acquired  by  adverse  possession.  Depue  v. 
Miller,  23:  775,  64  S.  E.  740,  65  W.  Va.  120. 


EQUITY,  HI.  b— ESCHEAT. 


1047 


b.  Coming     into      equity      with      clean 
hands, 

(See  also   same   heading   in   Digest   L.R.A. 
1-10.) 

See  also  Injunction,  202. 

140.  The  rule  that  equity  will  not  refuse 
aid  to  one  who  comes  before  it  with  un- 
clean handSj  when  the  uncleanness  does  not 
relate  to  the  thing  sought  to  be  protected, 
has  no  application  to  a  suit  by  the  manu- 
facturer of  a  secret  medicine,  the  sale  of 
which  has  been  built  up  by  fraudulent  rep- 
resentations, to  enforce  a  contract  with  an 
institution  as  to  the  use  of  the  remedies, 
and  to  prevent  the  institution  fr-ora  using 
them  in  violation  of  \  ..itlff'!~  rights.  Mem- 
phis Keeley  Institute  v.  Leslie  E.  Keeley 
Co.  i6:  921,  155  Fed.  964,  84  C.  C.  A.  112. 

141.  Equity  will  not  aid  the  manufacturer 
of  a  secret  medicine,  the  sale  of  which 
has  been  built  up  by  fraudulent  represen- 
tations, to  the  public  as  to  its  ingredients, 
to  enforce  a  contract  with  an  institution 
purporting  to  administer  such  remedies,  by 
requiring  a  cancelation  of  the  contract  and 
a  surrender  of  the  remedies  on  hand  be- 
cause of  breach  of  the  contract,  on  the  the- 
ory that  failure  to  do  so  will  enable  de- 
fendant to  impose  on  the  public  by  claim- 
ing the  right  to  administer  the  remedies. 
Memphis  Keeley  Institute  v.  Leslie  E.  Kee- 
ley Co.  16:  921,  155  Fed.  964,  84  C.  C.  A; 
112. 

142.  The  presumption  of  remedial  law, 
which  imputes  to  a  principal  the  knowledge 
of  fraud  of  his  agent,  applies  only  to  the 
legal  rights  of  parties,  and  does  not  affect 
their  moral  standing  so  as  to  exclude  them 
from  a  court  of  equity  on  the  ground  that 
they  do  not  come  with  clean  hands.  Vul- 
can Detinning  Co.  v.  American  Can  Co.  (N. 
J.  Err.  &  App.)  12:  102,  67  Atl.  339,  72  N. 
J.  Eq.  403. 

143.  Equity  will  refuse  its  aid  to  one 
guilty  of  any  unlawful  conduct  in  the  mat- 
ter with  relation  to  which  he  seeks  equity. 
International  Land  Co.  v.  Marshall,  19:  1056, 
98  Pac.  951,  22  Okla.  693. 

144.  Where  by  statute  an  action  of  man- 
damus is  triable  as  an  equitable  action, 
plaintiff  must  come  with  clean  hands  in 
order  to  obtain  the  writ.  Funck  v.  Farmers' 
Elevator  Co.  24:  108,  121  N.  W.  53,  142 
Iowa,  621. 


ERASURES. 

In   will,   see .  Evidence,   607,    1175;    Trial, 
614;   Wills,  46-52. 


EQUITY  OF  REDEMPTION. 

Curtesy  in  equity  of  redemption   of  wife's 

lands,  see  Cltrtesy,  3. 
Effect  of  assignment  of  equity  of  redemption 

on  insurance  payable  to  mortgagee,  see 

iNSIfSANCE,  821. 
Digest  1-52  L.R.A.(N.S.) 


ERRONEOUS    VERDICT. 

As   ground   for   new  trial,   see  New   Tbial, 
III.  b. 


ERROR. 

As  to  appellate  review  in  general,  see  Ap* 

PEAL   AND    EbROB. 


ERROR   OF   JUDGMENT. 

On  part  of  conductor  in  ejecting  passenger, 
see  Carriebs,  409,  410. 


ESCAPE. 

Effect  of.  on  appeal,  see  Appeal  and  Errob, 

93,  402. 
Liability   of  bond   of   sheriff  for   escape  of 

prisoner,  see  Bonds,  61. 
Validity   of    statute    providing   punishment 

for,  see  Constitutional  Law,  338,  339, 

630;    Cbiminal   Law,   219. 
One  accepting  aid  to  escape  as  accomplice 

of  one  furnishing  it,  see  Cbiminal  Law, 

49. 
Attempt  to  escape  of  one  not  formally  com- 
mitted, see  Criminal  Law,  237. 
Evidence  that  one  on  trial  for  crime  refused 

to  escape,  see  Evidence,  1837. 
Evidence  of  attempt  to  escape,  see  EviDEn^rcE, 

1844,  1925,  2423. 
Of  animal  during  transportation,  see  Cab- 

BIEBS,    889. 
Of  dangerous  agency,  see  Negligence,  36- 

41. 

1.  A  prisoner  who  escapes  from  jail  by 
force  and  violence  pending  the  determina- 
tion of  a  writ  of  error  to  a  judgment  of 
conviction  for  a  felony,  resulting  in  a  re- 
versal thereof  and  a  discharge  of  the  pris- 
oner, does  not  violate  a  statute  providing 
for  the  punishment  of  a  person  confined  in 
jail  on  "conviction"  of  a  criminal  offense 
who  escapes  thence  by  force  or  violence. 
State  V.  Pishner,  52:  369,  81  S.  E.  1046,  73 
W.  Va.  744.  (Annotated) 


ESCHEAT. 


Due  process  in,  see  Constitutional  Law, 
570. 

Stay  of  escheat  proceedings  to  await  con- 
test  of  will  in  county  court,  see  Equi- 
ty, 79. 


1048 


ESCROW. 


Jurisdiction  of  chancery  court  in  which 
escheat  proceedings  for  property 
claimed  under  will  have  been  instituted 
to  determine  question  of  fraud  in  pro- 
curing will,  see  Equity,  115. 

Of  estate  of  absentee,  see  Executobs  and 
Administbatobs,  14,  15,  22. 

Kight  of  state  to  contest  will  in  absence  of 
which  property  would  escheat,  see 
Wills,  93. 

1.  The  right  of  the  country  of  domicil 
to  confiscate  the  estate  of  one  dying  intes- 
tate and  without  heirs  does  not  extend  to 
personal  property  in  England,  the  maxim, 
Mobilia  sequuntur  personam,  not  being  ap- 
plicable in  such  case;  but  the  Crown  takes 
the  property  as  bona  vacantia.  Re  Burnett's 
Trusts,  3  B.  R.  C.  198,  [1902]  1  Ch.  847. 
Also  Reported  in  71  L.  J.  Ch.  N.  S.  408,  50 
Week.  Rep.  681,  86  L.  T.  N.  S.  346,  18  Times 
L.  R.  454. 

2.  A  state  may  provide  for  the  escheat 
of  land  taken  by  a  national  bank  to  secure 
a  debt,  after  it  has  been  held  for  the  five 
years'  period  allowed  by  the  Federal  bank- 
ing law,  although  no  opportunity  has  been 
found  to  dispose  of  it  at  a  fair  price.  First 
Nat.  Bank  v.  Com.  use  of  Louisville  School 
Bd.  34:  54,  137  S.  W.  518,  143  Ky.  816. 

3.  Failure  of  the  state  to  take  pro- 
ceedings during  the  lifetime  of  an  alien  who, 
under  the  Constitution,  was  incompetent  to 
hold  title  to  property,  for  an  escheat,  defeats 
the  right  in  favor  of  alien  heirs,  where, 
under  the  Constitution,  such  heirs  n\a.y  take 
title  by  inheritance.  Abrams  v.  State,  9: 
186,  88  Pac.  327,  45  Wash.  327. 

(Annotated^ 

4.  One  who,  in  good  faith  and  for  a 
valuable  consideration,  buys  corpoiation 
land  before  an  action  has  been  brought  to 
establish  an  escheat  to  which  it  is  subject, 
because  the  corporation  has  held  it  when  it 
was  unnecessary  to  its  purposes,  contiary 
to  the  provisions  of  the  Constitution,  ac- 
quires an  indefeasible  title  to  it,  although 
the  state  is  authorized  by  statute  to  take 
possession  or  sue  for  its  recovery,  without 
office  found.  Louisville  School  Board  v. 
King,  15:  379,  107  S.  W.  247,  127  Ky.  824. 

5.  A  judgment  in  some  form  declaring 
an  escheat  must  be  obtained  before  tne 
state  can  get  property  subject  to  forfeiture, 
although  a  statute  declares  that  the  com- 
monwealth may  enter  upon  and  take  posses- 
sion of  the  land.  Louisville  School  Board 
V.  King,  15  :379,  107  S.  W.  247,  127  Ky.  824. 

(Annotated) 

6.  The  probate  in  common  form  of  a 
will  obtained  from  a  person  non  compos 
mentis  does  not  bar  the  state  of  its  right 
to  institute  proceedings  for  the  escheat  of 
the  property,  under  a  statute  providing 
therefor  in  case  of  persons  dying  intestate 
without  issue  or  relatives.  State  v.  Lan- 
caster, 14:  991,  105  S.  W.  r58,  119  Tenn.  638. 

7.  A  bill  to  declare  an  escheat  of  prop- 
erty which  has  been  sold  in  course  of  ad- 
ministration properly  lies  against  the  ad- 
ministrator in  whose  hands  the  proceeds  j 
are  found  and  the  claimants  under  the  will. 
Digest  1-52  r,.R.A.(N.S.) 


rather  than  against  the  persons  to  whom 
the  property  was  sold.  State  v.  Lancaster, 
14:  991,  105  S.  W.  858,  119  Tenn.  638. 

8.  Constitutional  and  statutory  provi- 
sions forbidding  common  carriers  from  en- 
gaging directly  or  indirectly  in  any  other 
business  than  that  of  a  common  carrier,  and 
forbidding  corporations  from  engaging  in 
any  business  not  expressly  authorized  by 
their  charters,  do  not  prevent  a  railroad 
company  from  owning  a  hotel  at  a  junction 
point,  which  is  run  by  a  lessee  for  the  neces- 
sary accommodation  of  its  passengers  and 
employees,  so  as  to  render  the  land  on 
which  it  is  located  subject  to  escheat. 
Louisville  Property  Co.  v.  Com.  38:  830,  143 
S.   W.  412,   146  Ky.  827,  (Annotated) 

9.  The  use  by  a  railroad  company  of  a 
small  parcel  of  land  adjacent  to  its  depot 
for  a  park,  which  adds  materially  to  the 
comfort  and  convenience  of  passengers  and 
employees,  does  not  render  it  subject  to 
escheat  as  not  being  used  for  the  purpose  of 
its  business.  Louisville  Property  Co.  v. 
Com.  38:  830,  143  S.  W.  412,  146  Ky.  827. 

10.  Land  held  by  a  railroad  company 
for  the  accommodation  of  additional  track- 
age, which  will  sooner  or  later  be  required 
by  the  increasing  business  of  the  company, 
ia  not  subject  to  esclieat,  as  not  being  used 
for  purposes  of  its  business.  Louisville 
Property  Co.  v.  Com.  38:  830,  143  S.  W.  412, 
146  Ky.  827. 

11.  A  tract  of  land  purchased  by  a  rail- 
road company  at  a  point  where  two  branches 
of  its  road  cross,  and  which  may  reason- 
ably be  needed  for  additional  terminal  fa- 
cilities, is  not  subject  to  escheat  under  a 
constitutional  provision  for  the  escheat  of 
property  owned  by  a  corporation,  and  not 
used  in  its  business  for  a  period  of  five 
years,  because,  by  reason  of  press  of  other 
business  or  lack  of  means,  it  does  not,  with- 
in such  period,  make  tl>e  necessary  improve- 
ments upon  it  to  fit  it  for  its  use.  Louis- 
ville Property  Co.  v.  Com.  38:  830,  143  S. 
W.   412,   146  Ky.   827. 


ESCROW. 


Preference  by  delivery  to  creditor  within 
four  months  of  bankruptcy,  of  securities 
deposited  in  escrow  prior  to  four 
months'  period,  see  Bankbuptcy,  84, 

Agent's  disobedience  of  instructions  to  place 
papers  in  escrow,  see  Pbincipal  and 
Agent,  77. 

Validity  of  parol  escrow  agreement,  see 
Contbacts,  276. 

Deeds. 

Enforcing  delivery  of  deed  placed  in  es- 
crow, see  Contbacts,  275. 

Sufficiency  of  delivery  of  deed  in  escrow  to 
satisfy  statute  of  frauds,  see  Con- 
tbacts, 279. 

Sufficiency  of  delivery  of  deed  to  third  per- 
son, generally,  see  Deeds,  I.  b,  2. 


ESTABLISHMENT— ESTOPPEL. 


104» 


Placing  deed  of  property  in  escrow  as 
change  of  title  within  meaning  of  in- 
surance policy,  see  Insurance,  221. 

Deed  in,  as  mortgage,  see  Mortgage,  14. 

Specific  performance  of  contract  to  deposit 
deed  in  escrow,  see  Specific  Perform- 
ance, 105. 

Loss  of  property  by  fire  while  deed  is  still 
in  escrow,  see  Vendor  and  Purchaser, 
23. 

1.  Equity  treats  things  agreed  to  be 
done  as  actually  performed,  and  where  real 
estate  is  sold  under  a  valid  contract,  and 
the  deed  executed  and  placed  in  escrow  to 
be  delivered  at  a  future  date  on  payment  of 
the  purchase  money,  evidenced  by  a  promis- 
sory note  due  on  said  daj',  the  equitable 
title  passes  at  once  to  the  vendee.  Fouts 
V.  Foudray,  38:  251,  120  Pac.  960,  31  Okla. 
221. 

2.  While  a  deed  is  in  escrow  awaiting 
the  performance  of  conditions  precedent  to 
the  delivery  thereof  by  the  vendor  to  the 
vendee,  there  is  no  change  in  the  title  or 
right  of  possession  to  the  property,  al- 
though the  purchaser  occupies  it  with  the 
consent  of  the  vendor,  in  anticipation  of 
completing  the  contract  of  sale  and  pur- 
chase. Pomeroy  v.  ^tna  Ins.  Co.  38:  142, 
120  Pac.  344,  86  Kan.  214.  (Annotated) 

3.  No  force  is  given  to  a  deed  deposit- 
ed in  escrow,  which  it  would  not  otherwise 
have,  by  the  fact  that  the  vendor  imposes 
conditions  as  to  the  right  of  withdrawal 
which  violate  the  terms  of  his  contract  as 
to  the  deposit  of  the  deed.  Wilkins  v. 
Somerville,  11:  1183,  66  Atl.  893,  80  Vt.  48. 

(Annotated) 

4.  If  possession  of  an  escrow  is  obtained 
without  performance  of  the  condition  upon 
which  a  delivery  to  the  grantee  was  to  be 
made,  no  title  passes.  Horner  v.  Spencer, 
17:  622,  95  Pac.  757,  21  Okla.  155. 

5.  If  a  deed,  absolute  and  complete  on 
its  face,  is  delivered  to  the  grantee  as  an  es- 
crow, to  take  efi"ect  in  any  event,  the  condi- 
tion is  void,  the  deed  is  absolute,  and  title 
passes  to  the  grantee  on  delivery  thereof. 
Dorr  V.  Midelburg,  23:  987,  65  S.  E.  97,  65 
W.  Va.  778. 

6.  The  deposit  in  bank  of  a  properly 
executed  deed,  and  money,  notes,  and  war- 
rants sufficient  to  pay  the  purchase  price, 
the  deed  to  be  delivered  when  the  warrants 
are  properly  indorsed,  constitutes  a  legal 
escrow  agreement;  and  delivery  of  the  deed 
can  be  compelled  upon  proper  indorsement 
of  the  warrants  within  a  reasonable  time. 
Manning  v.  Foster,  18:  337,  96  Pac.  233,  49 
Wash.   541. 

7.  The  mere  deposit  in  a  bank  of  a 
deed  executed  in  accordance  with  a  parol 
contract  to  convey  real  estate,  with  di- 
rections to  return  it  to  the  maker  upon 
nonperformance  of  certain  specified  con- 
ditions, does  not  constitute  an  enforceable 
escrow  agreement.  King  v.  Upper,  31:  606, 
106  Pac.  612,  57  Wash.  130. 
Digest  1-52  Ii.R.A.(N.S.) 


ESTABLISHMENT. 

Of  homestead,  see  Homestead,  L  c. 


ESTATE. 

Joint  estates  or  estates  in  common,  see  Co- 
tenancy. 

By  curtesy,  see  Curtesy. 

In  real  property  generally,  see  Deeds,  II.  d; 
II.  e. 

By  entireties,  see  Husband  and  Wife,  II.  b. 

Creation  of  base  or  determinable  fee  by 
lease,  see  Landlord  and  Tenant,  108. 

Life  estates,  see  Life  Tenants. 

Merger  of  estates,  see  Merger. 

Created  by  will,  see  Wills,  III.  g. 


ESTATES  BY  ENTIRETIES. 

See  Husband  and  Wife,  II.  b. 


ESTATES  TAIL. 

See  Deeds,  II.  e,  3. 


ESTIMATES. 


Mistake  of  architect  in  making,  see  Archi- 
tects, 1. 

By  engineer  as  condition  precedent  to  right 
to  recover  on  contract,  see  Contracts, 
670. 

Of  engineer,  conclusiveness,  see  Contracts, 
681-683,  685. 

Fraud  in  making,  see  Fraud  and  Deceit, 
36,  37. 


ESTOPPEI.. 


I.  Of  municipality,  county,  town,  or 
state,  1—24. 

a.  Of    municipality,     county,     or 

town,  1—22. 

b.  Of  state,  23,  24=. 

II.  By  deed,  bond  or  record,  25—46. 

a.  By  deed,  25—37. 

b.  By  bond  or  mortgage,   3S. 

c.  By  record,  39—46. 

III.  Equitable  estoppel   or   estoppel   in 
pais,  47—265. 

a.  In  general;  effect,   47—62. 

b.  Or  married  wom,en,   64— 6S. 

c.  As   to    corporate    existence    or 

powers,  69—73. 

d.  By     contracts     or     agreements 

generally;     ratification,     74— 
80. 

e.  By  conduct,  request,  or  admis- 

sions generally,   81—108. 

f.  By  assent,   109—116. 


1050 


ESTOPPEL,  I.  a. 


///. — con  tinued. 

g.  By  laches,  silence,  or  acquiea 
cence,  117—102. 

1.  In  general,  117—136.  . 

2.  As  to  real  property,   137—  . 

162.  I 

•  a.  In   general,    137—14:7.  \ 

b.  Pertnitting       improve- 
ments    or     expendi- 
tures,  14:8-162. 
h.  By  representations,   163—178. 
i.  Btf  negligence  or  fraud,   179— 

197. 
j.  By      inconsistency       in      acts, 
claims,  etc.,  198—226. 

1.  In  general,  198—209. 

2.  As  to  title,  210-212. 

3.  Acts  or  claims  in  judicial 

proceeding,   213-226. 
fc.  Bi/     receiving     benefits,     227— 

24:1. 

I.  By    character    or    relation    of 
parties,   242-250. 
m.  Who  affected,  251-263. 
n.  Who  may  set  up,  264,  263. 

Waiver  of  estoppel  to  appeal,  see  Appeal 
AND  Error,  16. 

To  raise  question  on  appeal,  see  Appeal 
AND  Error,  VII.  g. 

Raising  for  first  time  on  appeal  defense  of 
failure  to  plead,  see  Appeal  and  Er- 
ror, 727. 

Decision  on  appeal  as,  see  Appeial  and  Er- 
ror, 1664. 

Of  senior  mortgagee  to  claim  paramount 
lien  aa  against  junior  mortgagee,  see 
Contracts,  72. 

By  architect's  certificate  as  to  compliance 
with  building  contract,  see  Contracts, 
679. 

Burden  of  proving  facts  essential  to,  see 
Evidence,  661. 

Evidence  to  show,  see  Evidence,  917,  936, 
.1379. 

To  object  to  hypothetical  question,  see  Evi- 
dence, 1069. 

Sufficiency  of  evidence  as  to,  see  Evidence, 
2338. 

Proof  of,  under  traverse,  see  Evidence, 
2434. 

liimiting  time  to  sue  on  policy,  see  Insur- 
ance, VI.  h,  3. 

Striking  out  plea  of,  see  Pleading,  144. 

To  maintain  trespass,  see  Trespass,  21. 

To  object  to  admission  of  deposition,  see 
Trial,  79. 

To  complain  of  instruction  in  action  against 
city  for  injury  by  defective  highway,  see 
Trial,  1057. 

To  maintain  action  for  conversion,  see  Trov- 
er, 48. 

/,  Of    municipality,    county,    town,    or 
state. 

a.  Of  municipality,   county,   or  'totvn. 

/See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Eatoppel  of  county  by  acts  of  officers,  see 

infra,  256. 
Digest  1-52  I<.R.A.(N.S.) 


To  deny  liability  on  bonds,  see  Bonds,  III. 
b,  6. 

1.  A  municipal  corporation  cannot  es- 
top itself  from  asserting  the  invalidity  of 
warrants  issued  in  excess  of  its  constitu- 
tional debt  limit.  Eddy  Valve  Co.  v.  Crown 
Point,  3:  684,  76  N.  E.  536,  166  Ind.  613. 

2.  The  construction  by  a  property  own- 
er, of  improvements  to  use  in  connection 
with  a  railroad,  does  not  estop  the  munici- 
pality from  requiring  an  elevation  of  the 
railroad  tracks  in  the  interest  of  the  public 
welfare,  to  avoid  danger  of  injury  to  per- 
sons at  street  crossings,  although  the  result 
is  to  destroy  the  switch  connection.  Otis 
Elevator  Co.  v.  Chicago,  52:  192,  105  N.  E. 
338,  263  111.  419. 

3.  The  fact  that  the  city  attorney  knew 
the  facts  in  a  transaction  by  which  a  mem- 
ber of  a  committee  for  tlie  purchase  of  real 
estate  for  the  city  fire  department  sold  land 
to  the  city  under  such  circumstances  as  to 
constitute  him  a  trustee  will  not  work  a 
waiver  or  estoppel  against  the  city  to  claim 
the  benefits  of  the  transaction  accruing  to 
the  member  of  the  committee.  Minneapolis 
V.  Canterbury,  48:  842,  142  ^^  VV.  812,  122 
Minn.  301. 

To   deny   validity   of   ordinance. 

4.  A  municipality  cannot,  in  support 
of  a  prosecution  for  acts  authorized  by  its 
ordinance,  maintain  that  the  ordinance  is 
void  because  creating  a  monoply,  delegating 
legislative  and  arbitrary  power  to  its  board 
of  health,  and  imposing  unreasonable  and 
burdensome  restrictions.  Zimmerman  v. 
Gritzniacher,  ai:  299,  98  Pac.  875,  53  Or.  206. 

(Annotated) 

5.  A  municipality  which  has  granted  a 
license  under  an  invalid  ordinance,  receiv- 
ing therefor  a  valid  consideration,  is  not 
estopped  from  asserting  such  invalidity  in 
an  action  to  recover  back  the  license  fee 
after  denial  by  the  city  of  the  rights  at- 
tempted to  be  granted,  where  the  acts  of 
the  plaintiff  in  obtaining  the  license  involve 
moral  turpitude  and  a  violation  of  a  gen- 
eral law  enacted  to  carry  into  effect  a  pub- 
lic policy  of  the  state.  Levy  v.  Kansas 
City,  22:  862,  168  Fed.  524,  93  C.  C.  A.  523. 
By  laches;  acquiescence  or  recogni- 
tion. 

See  also  infra,  16. 

0.  A  city  is  not  estopped  by  reason  of 
its  past  failure  to  enforce  its  ordinances 
against  the  obstruction  of  sidewalks  from 
subsequently  removing  all  the  obstructions 
therefrom.  Chapman  v.  Lincoln,  25:  400, 
121  N.  W.  596,  84  Neb.  534. 

7.  Municipal  authorities  cannot  become 
estopped  to  require  the  removal  from  a 
street  of  the  rails  of  a  street  railway  by 
standing  by  and  seeing  the  rails  laid  with- 
out objection.  Bangor  v.  Bay  City  Traction 
&  E.  Co.  7:  1 187,  110  N.  W.  490,  147  Mich. 
165.  (Annotated) 

8.  A  municipal  corporation  which  fails 
to  assert  its  title  to  a  street  dedicated  to 
public  use,  and  permits  an  abutting  prop- 
erty owner  to  improve  his  property  at  large 
expense,  with  reference  to  what  he  supposes 
in  good  faith  to  be  the  true  street  boundary 


ESTOPPEL,  I.  a. 


1051 


line,  and  maintain  the  improvements  for  a 
period  of  thirteen  years,  will  be  estopped 
from  asserting  a  title  which  will  practically 
destroy  the  value  of  the  abutting  property 
for  residence  purposes,  and  work  irremedia- 
ble injury  to  the  owner.  Oliver  v.  Synhorst, 
7:  243,  86  Pac.  376,  48  Or.  292.  (Annotated) 
9.  A  city  which,  for  a  period  of  more 
than  sixty  years,  does  not  assert  its  tit.lo 
to  a  strip  of  land  dedicated  as  a  public 
street,  and  permits  the  former  owner  to 
deal  with  it  as  his  own,  paying  taxes  and 
building  on  it,  is  estopped  to  assert  its  ti- 
tle. Peoria  v.  Central  Nat.  Bank,  12:  687, 
79  N.  E.  296,  224  111.  43. 

10.  The  approval  of  the  work  by  the  city 
engineer  imder  whose  supervision  a  contract 
for  public  improvement  is  to  be  performed 
will,  in  the  absence  of  fraud  or  concealment 
which  prevents  a  discovery  of  imperfections, 
estop  the  municipality  from  contesting  the 
contractor's  right  to  the  contract  price  be- 
cause of  failure  to  perform  the  work  accord- 
ing to  the  specifications,  so  far  as  defects 
are  concerned  which  were  discoverable  by 
reasonable  attention  to  the  duties  of  inspec- 
tion. City  Street  Improv.  Co.  v.  Marys- 
ville,  23:  317,  101  Pac.  308,  155  Cal.  419. 

(Annotated) 

11.  A  city  is  estopped  to  open  streets 
through  property  upon  which  a  great  in- 
dustrial plant  has  been  placed  at  its  solic- 
itation, so  long  as  they  are  occupied  for  the 
purpose  of  such  plant,  where  its  mayor,  up- 
on inquiry  by  the  owners  of  the  plant  as 
to  streets,  the  existence  of  which  through 
the  property  was  doubtful,  informed  them 
that  if  they  Existed  they  were  of  no  use 
and  would  never  be  claimed  by  the  city,  up- 
on which  information  the  proprietors  acted 
in  establishing  the  plant.  Portland  v.  In- 
raan  Poulsen  Lumber  Co.  46:  121 1,  133  Pac. 
829,  66  Or.  86.     »  (Annotated) 

12.  Permitting  a  building  to  stand  below 
high-water  mark  so  as  to  interfere  with  the 
operation  of  a  drawbridge  for  a  period  of 
fourteen  months  does  not  estop  the  county 
commissioners  from  requiring  its  removal. 
Lenoir  County  v.  Crabtree.  39:  1213,  74  S. 
E.  105,  158  N.  C.  357. 

13.  The  public  is  not,  on  the  theory  of 
estoppel,  barred  from  contesting  the  collec- 
tion of  tolls  on  a  county  bridge,  by  long 
acquiescence  therein.  Breathitt  County  v. 
Hammons,  42:  836,  150  S.  W.  661,  150  Ky. 
502. 

14.  A  municipal  corporation  which  ap- 
points a  superintendent  to  supervise  the 
building  of  a  bridge  for  it,  and  accepts 
the  work  done  under  his  supervision  as 
well  as  the  bridge,  is  estopped  thereafter 
to  deny  liability  for  such  work  and  bridge, 
because  of  irregularity  in  the  appointment 
of  the  superintendent.  Matheney  v.  El- 
dorado, 28:  980,  109  Pac.  166,  82  Kan.  720. 
By  conduct,  contract,  or  assent. 

15.  A  municipal  corporation  whose  sur- 
veyor, in  accordance  with  the  city  ordi- 
nances, runs  the  lines  of  a  lot  owner  ac- 
cording to  a  map  of  the  city  which  has  been 
publicly  recognized  to  some  extent,  and 
whose  officials  recognize  such  line  by  re- 
Digest  1-52  L.R.A.(N.S.) 


quiring  the  eonstruction  and  inaintenaiice  of 
sidewalks,  is  estopped  to  change  the  street 
line  so  as  to  necessitate  the  destruction  of 
a  building  on  the  property  which  was  erect- 
ed in  accordance  with  the  lines  so  run  and 
has  stood  for  more  than  twenty  years,  al- 
though the  line  claimed  by  it  is  the  one 
established  by  the  plat  by  which  the  streets 
were  dedicated  and  accepted  for  public  use. 
Krause  v.  El  Paso,  14:  5S2,  106  S.  W.  121, 
101  Tex.  211. 

16.  A  municipal  corporation  is  not  es- 
topped to  forbid  further  interments  in  a 
cemetery  because  it  conveyed  the  land  to 
the  cemetery  owners  for  cemetery  purposes, 
and  acquiesced  for  many  years  in  such 
use, — at  least,  if  conditions  have  changed 
by  the  growth  of  the  city  since  the  estab- 
lishment of  the  cemetery.  Laurel  Hill 
Cemetery  v.  San  Francisco,  27:  260,  93  Pac. 
70,  152  Cal.  464. 

17.  The  approval  by  a  municipal  cor- 
poration of  the  plans  for  a  building,  which 
show  a  vault  or  area  beneath  the  adjoin- 
ing sidewalk,  the  fee  of  which  is  in  the 
city,  does  not  estop  it  from  requiring  com- 
pensation from  the  owner  for  such  por- 
tion of  its  property  as  he  makes  use  of 
for  the  vault,  or  removal  of  the  vault.  Ta- 
coma  Safety  Deposit  Co.  v.  Chicago, 
31 :  868,  93  N.   E.   153,  247   IlL   192. 

18.  An  estoppel  to  complain  that  a  dif- 
ferent kind  of  material  was  used  in  a  por- 
tion of  a  street  pavement  from  that  which 
the  contract  called  for  is  created  by  accept- 
ing and  paying  for  the  work  with  knowl- 
edge of  that  fact.  Owensboro  City  R.  Co. 
V.  Barber  Asphalt  Pav.  Co.  14:  1216,  107 
S.  W.  244,  32  Ky.  L.  Rep.  844. 

By  inconsistency  in  acts  or  claims. 
See  also  supra,  14. 

19.  A  city  taking  title  by  eminent  do- 
main is  estopped  to  deny  the  validity  of 
tax  and  special  assessment  liens,  deducted 
from  the  appraisement,'  where  the  judgment 
of  appraisal  provides  that  there  shall  be  no 
deductions  from  the  award  "for  taxes  or 
special  assessments,  the  said  land  being 
taken  by  tne  city  subject  to  all  special  and 
general  taxes  against  the  property."  City 
Safe  Deposit  &  A.  Co.  v.  Omaha,  21 :  72, 
112  N.  W.  598,  79  Neb.  446.         (Annotated) 

20.  A  municipal  corporation  which,  in 
its  pleadings,  in  a  suit  to  enjoin  its  inter- 
ference with  the  rights  of  a  riparian  owner 
in  the  shore  in  front  of  his  property,  admits 
that  it  holds  the  legal  title  in  trust  for  the 
public  in  general  and  for  riparian  owners 
in  particular,  is  estopped  to  deny  its  rela- 
tion of  trustee  to  the  riparian  owner.  Mo- 
bile Transp.  Co.  v.  Mobile,  13:  352,  44  So. 
976,  153  Ala.  409. 

By    receiving    benefits. 

21.  A  municipal  corporation  which  re- 
ceives and  retains  substantial  benefits  un- 
der a  contract  which  it  is  authorized  to 
make,  but  which  is  void  because  irregular- 
ly executed,  cannot  maintain  an  action, 
after  having  paid  the  reasonable  value  of 
the  benefits  received,  to  recover  them  back. 
Cathers  v.  Moores,  14:  298,  110  N.  W.  689, 
78  Neb.  13. 


1052 


ESTOPPEL,  I.  b,  II.  a. 


22.  Injunction  will  not  lie  at  tho  suit  of 
the  town  to  prevent  the  use  by  a  bank  of 
town  orders  which  it  has  taken  as  collateral 
from  the  town  treasurer,  to  whom  it  agreed 
to  advance  money  to  pay  the  orders  upon 
his  agreement  to  assign  the  orders  to  it  as 
collateral;  since  the  town,  having  received 
the  benefit  of  the  agreement,  is  estopped 
to  deny  the  bank's  right  of  reimbursement. 
New  Haven  v.  Weston,  46:  921,  86  Atl.  996, 
87  Vt.  7. 

h.  Of  state. 

(See  also   same   heading   in   Digest   L.R.A. 
1-10.) 

To  attack  franchise  of  village,  see  Munici- 
pal Corporations,  1. 

23.  The  state  may  be  estopped  by  its 
acts  or  laches,  and  should  not  be  allowed  to 
oust  a  street  railway  company  of  its  rights 
and  franchises,  where  for  a  long  series  of 
years  it  has  stood  silent  and  seen  the  cor- 
poration expend  large  sums  in  the  acquisi- 
tion of  property  and  improvements  made 
thereon,  under  a  claimed  right  so  to  do 
under  its  charter.  State  ex  rel.  Caldwell  v. 
Lincoln  Street  Railway,  14:  336,  114  N.  W. 
422,  80  Neb.  333.  ( Annotated ) 

24.  A  state  cannot  be  estopped  to  exer- 
cise its  power  of  assessment  and  taxation 
with  reference  to  lands  merely  because  it 
may  have  made,  or  continues  to  make, 
wrongful  claim  to  own  them.  Chicago,  St. 
P.  M.  &  0.  R.  Co.  V.  Douglas  County, 
14:  1074,  114  N.  W.  511,  134  Wis.  197. 

(Annotated) 

//.  By  deed,  bond,  or  record. 

a.  By  deed. 

(See  also   same  heading   in  Digest   L.R.A. 
1-10.) 

By  record  of  undelivered  deed,  see  infra,  40. 
Estoppel  to  deny  validity  of  deed,  see  infra, 
140. 

25.  One  alleged  to  have  convoyed  real 
estate  while  ill  is  not  estopped  by  the  deed 
to  testify  that  he  gave  no  paper  or  any  kind 
of  deed,  as  bearing  on  the  question  of  his 
mental  capacity  at  the  time;  nor  is  the 
evidence  immaterial  upon  that  issue.  At- 
wood  v.  Atwood,  37:  591,  79  Atl.  59,  84  Conn. 
169. 

26.  A  grant,  without  reservation,  of  a 
strip  of  land  for  a  conduit  to  connect  a 
river  with  a  lake,  does  not  estop  the  grant- 
or from  complaining  of  the  diversion  of 
the  flood  water  of  the  river  to  the  injury 
of  his  property,  if  he  had  no  notice  that 
the  grantee  contemplated  such  diversion. 
Thompson  v.  New  Haven  Water  Co.  45:  457, 
86  Atl.  585,  86  Conn.  597. 

27.  One  is  not  estopped  from  assert- 
ing title  to  a  strip  of  land  over  which  he 
has  granted  a  private  right  of  way  to 
several  persons  if  the  doeds  are  on  record. 
Digest   1-52  I,.R.A.(N.S.) 


and  from  them  the  intention  is  apparent 
that  the  strip  was  to  be  used  as  an  ease- 
ment and  appurtenance  to  the  several  lots 
to  the  owners  of  which  the  right  was  grant- 
ed. Brown  v.  Oregon  Short  Line  R.  Co. 
24:  86,  102  Pac.  740,  36  Utah,  257. 

28.  The  owner  of  a  life  estate  in  land, 
who  ineffectually  attempts,  as  administra- 
tor of  the  former  owner,  to  convey  the  prop- 
erty as  belonging  to  the  estate,  will  not  be 
heard  to  say  that  the  deed  does  not  pass 
title  to  his  life  estate,  and  therefore  the 
grantee  is  rightfully  in  pos.session  until  such 
estate  terminates,  so  that  the  remainder- 
man cannot  maintain  an  action  for  posses- 
sion until  that  time.  Millican  v.  McNeill, 
21:  60,  114  S.  W.  106,  102  Tex.  189. 

(Annotated) 

29.  A  mother  who  conveys  real  estate  to 
her  infant  child  by  deed  duly  acknowledged 
and  recorded,  and  acquiesces  therein  for 
thirteen  years,  is  estopped,  as  well  as  one 
claiming  under  her,  from  asserting  that  it 
was  not  her  intention  to  convey  the  proper- 
ty, and  that  the  deed  was  recorded  through 
fraud  or  mistake.  Pentico  v.  Hays,  9:  224, 
88  Pac.  738,  75  Kan.  76. 

Of  grantee. 

30.  A  recital  in  a  deed  sought  from  one 
claiming  as  the  widow  of  the  deceased  own- 
er, to  prevent  litigation,  that  she  was  the 
surviving  wife  of  decedent,  does  not  estop 
adverse  claimants  from  contesting  that 
fact.  Berger  v.  Kirby,  51:  182,  153  S.  W. 
1130,  105  Tex.  611. 

31.  A  purchaser  of  a  tract  of  land  cut  off 
from  a  highway  by  remaining  land  of  tlie 
grantor  and  that  of  strangers,  who  accepts 
a  deed  reciting  that  the  grant  is  bounded 
on  one  side  by  land  of  the  grantee,  and 
executes  a  purchase  money  mortgage  con- 
taining the  same  recital,  is  estopped,  as 
against  a  subsequent  grantee  of  the  re- 
mainder of  the  grantor's  tVact,  from  claim- 
ing that  the  recital  was  a  mistake,  dnd  that 
he  had  no  access  to  the  highway,  and  there- 
fore was  entitled  to  a  way  of  necessity. 
Doten  V.  Bartlett,  32:  1075,  78  Atl.  456,  107 
Me.  351. 

Of   married   ivoman. 

Estoppel   of  married  woman  generally,  see 
infra,  III.  b. 

32.  A  quitclaim  deed  by  a  woman  of 
land  held  by  herself  and  her  husband  by 
entireties  does  not  pass  the  property  when 
the  title  vests  in  her  by  the  death  of  her 
husband.  Ernst  v.  Ernst,  51:  317,  144  N. 
W.  513,  178  Mich.  100. 

32a.  A  warranty  of  title  in  an  attempted 
conveyance  by  a  married  woman  of  her  ex- 
pectancy will  not  estop  her  from  setting  up 
the  invalidity  of  the  conveyance  when  the 
expectancy  vests,  where  the  conveyance  was 
made  to  secure  debts  of  her  husband  with 
the  making  of  which  she  had  nothing  to  do, 
and  from  which  she  received  no  benefit, — 
especially  where  she  was  misled  as  to  the 
character  of  the  instrument  which  she  exe- 
cuted. Taylor  v.  SwafTord,  25:  442,  123 
S.  W.  350,  122  Tenn.  303. 
Of   heirs. 

33.  An    administrator    who    executes    a 


ESTOPPEL,  II.  b,  c. 


1053 


deed  purporting  to  convey  testator's  real 
estate,  in  which  he  has  a  private  interest  as 
heir,  is  estopped  to  claim  that  such  inter- 
est did  not  pass,  although  the  deed  is  void 
on  its  face, — especially  where  he  warrants 
the  title  as  fully  as  by  law  he  is  authorize.! 
to  do,  and  the  statute  requires  no  covenant 
in  an  administrator's  deed.  Bliss  v.  Tidrick, 
32:  854,  127  N.  W.  852,  25  S.  D.  533. 
By  recitals. 
Recitals  in  bond,  see  infra,  38 ;  Bonds,  17. 

34.  One  executing  a  sealed  contract  giv- 
ing another  the  right  to  purchase  stock 
within  a  specified  time  cannot,  for  the  pur- 
pose of  avoiding  the  contract,  dispute  the 
receipt  of  the  recited  consideration;  at  least, 
he  cannot  as  against  the  claims  of  a  bona 
fide  assignee  of  the  contract.  Watkins  v. 
Robertson,  5:  1194,  54  S.  E.  33,  105  Va.  269. 

35.  The  grantor  (and  his  successors  in 
title)  of  land  described  as  "situate  on  the 
seashore,"  and  as  being  of  certain  dimen- 
sions and  area,  more  or  less,  and  as  being 
bounded  "on  or  towards  the  west  by  the 
seashore,"  "which  piece  of  land  hereinbefore 
expressed  to  be  hereby  granted  is  more  par- 
ticularly delineated  in  the  plan  drawn  on 
the  back  of  these  presents," — the  conveyance 
being  made  in  order  that  the  grantee  might 
erect  a  seashore  residence, — is  estopped  from 
setting  up,  as  against  the  grantee,  that  the 
land  to  the  west  of  the  boundary  shown  in 
the  plan  on  the  conveyance  is  not  "sea- 
shore" in  the  strict  legal  sense,  so  as  to  in- 
terfere with  the  grantee's  access  to  the  sea. 
Mellor  V.  Walraesley,  4  B.  R.  C.  728,  [1905] 
2  Ch.  164.  Also  Reported  in  74  L.  J.  Ch.  N. 
S.  475,  53  Week.  Rep.  581,  93  L.  T.  N.  S. 
574,  21  Times  L.  R.  591. 

As    to    after-acquired    interest. 
See  also,  Covenants  and  Conditions,  22, 
23. 

36.  Irrespective  of  the  jurisdiction  of 
courts  of  equity,  it  has  always  been  possi- 
ble to  convey  subsequently  acquired  inter- 
ests by  operation  of  the  principle  of  estop- 
pel. McAdams  v.  Bailey,  13:  1003,  82  N.  E. 
1057,  169  Ind.  518. 

37.  A  homestead  claimant  who  executed 
a  mortgage  upon  government  land  held  by 
him  under  the  homestead  act  and  prior  to 
final  proof,  and  who  afterward  procured  the 
title  to  the  land  from  the  government,  is  es- 
topped from  defeating,  by  his  own  act,  the 
enforcement  of  the  lien  created  by  the 
mortgage;  but  his  after-acquired  title  in- 
ures to  the  benefit  of  the  mortgagee.  Stark 
V.  Morgan,  6:  934,  85  Pac.  567,  73  Kan.  453. 

6.  By    bond    or    tnovtgage. 

(See  also   same   heading   in   Digest   L.R.A. 
1-70.) 

By  bond. 

Estoppel  as  to  municipal  bonds,  see  Bonds, 

III.  b,  6. 
By  recitals  in  bond,  see  Bonds,  17. 
Of  obligors  on  replevin  bond,  see  Replevin, 

26. 
See  also  infra,  220. 

38.  A  surety  company  furnishing  a  bond 
Digest  1-52  I..R.A.(N.S.) 


for  a  bank  designated  by  the  state  treasur- 
er as  a  depository  for  the  collection  of 
drafts,  checks,  and  certificates  of  deposit 
that  might  come  into  his  hands  on  account 
of  anj'  claims  due  the  state,  which  bond 
contained  the  condition  that  the  bank 
would  promptly  collect  the  proceeds  of  all 
such  instruments  intruste*  to  it,  is,  upon 
the  bank's  default,  estopped  to  contend 
that  only  drafts,  checks,  and  certificates  of 
deposit  for  taxes  were  in  the  contempla- 
tion of  the  parties  to  the  bond,  although 
the  provision  for  the  appointment  of  the 
depository  is  part  of  an  act  relating  to 
taxation,  since  the  surety  company,  hav- 
ing given  a  bond  sufficiently  broad  to  cover 
paper  derived  from  other  sources,  thereby 
enabling  the  depository  to  obtain  posses- 
sion thereof,  is  precluded  from  denying  that 
the  bond  is  binding  according  to  its  terms. 
United  States  Fidelity  &  G.  Co.  v.  State. 
26:  865,  106  Pac.  1040,  81  Kan.  660. 
By  mortgage. 
See  supra,  31,  37;  infra,  255. 

c.  By   record. 

(See  also   same   heading   in   Digest  L.R.A.. 
1-10.) 

Estoppel  by  deed,  see  supra,  II.  a. 
See  also  supra,  27,  29;  infra,  55. 

39.  A  husband  whose  homestead,  during 
his  confinement  as  an  insane  person,  has 
been  conveyed  by  his  wife,  who  had  the  le- 
gal title,  is  not  estopped  by  the  record  title 
from  asserting,  after  he  has  been  adjudged 
sane,  his  homestead  right  against  the 
grantee.  Weather ington  v.  Smith,  13:  430, 
109  N.  W.  381,  77  Neb.  363. 

40.  Failure  of  successors  in  title  to  one 
whose  undelivered  deed  to  real  estate  has 
been  recorded,  to  remove  it  from  the  record, 
will  not  estop  them  from  denying  the  title 
of  a  stranger  who  purchases  the  property  in 
reliance  on  the  record.  Alabama  Coal  & 
C.  Co.  V.  Gulf  Coal  &  C.  Co.  7:  712,  40  So. 
397,   145   Ala.   228.  (Annotated) 

41.  Upon  trial  of  an  action  for  libel  in 
charging  plaintiff  with  larceny  based  on  a 
court  record,  plaintiff  cannot  prove  that, 
although  he  had  pleaded  guilty  to  the 
charge,  he  was  in  fact  not  so.  Register 
Newspaper  Co.  v.  Stone,  11:  240,  102  S.  W. 
800,  31   Ky.  L.  Rep.  458. 

By   judgment. 

As  to  effect  and  conclusiveness  of  judgment 

generally,  see  Judgment,  II. 
See  also   infra,   123,    125,    135;    Judgment, 

175. 

42.  In  an  action  brought  to  recover  dam- 
ages for  an  alleged  trespass  upon  real  prop- 
erty, the  defendant  is  entitled  to  the  bene- 
fit, as  an  estoppel,  of  a  judgment  rendered 
against  the  plaintiff  in  an  action  brought 
by  him  for  the  same  act  against  another 
person  who  was  the  immediate  actor  in 
the  commission  of  the  trespass  complained 
of.  even  though  the  defendant  would  not 
have  been  bound  by  the  adjudication  had 
it  been  the  other  way.     Portland  Gold  Min. 


1054 


ESTOPPEL,  III.  a. 


Co.  T.  Stratton's  Independence,  i6:  677,  158 
Fed.  63,  85  C.  C.  A.  .393. 

43.  A  judgment  in  an  action  against  a 
city  for  injuries  resulting  from  an  obstruc- 
tion in  a  street  dees  not  estop  one  who 
placed  the  obstruction  there  and  who  was 
given  notice  and  an  opportunity  to  defend 
in  the  action  against  the  city,  from  show- 
ing, in  a  subsequent  action  against  him  as 
indemnitor,  that  he  had  used  reasonable 
care  to  keep  the  obstruction  in  safe  condi- 
tion, and  was  therefore  not  liable.  Grand 
Forks  V.  Paulsness,  40:  1158,  123  N.  W.  878, 
19  N.  D.  293.  (Annotated) 

44.  A  judgment  against  plaintiff  for  fail- 
ure of  proof  in  an  action  for  possession  of 
real  property,  and  to  establish  title,  es- 
tops him  from  further  prosecution  of  an 
action  for  such  relief.  Wicker  v.  Jones,  40: 
69,  74  S.  E.  801,  159  N.  C.  102. 

45.  A  suit  for  divorce  upon  the  groimd 
of  habitual  indulgence  in  violent  and  un- 
governable temper  does  not  constitute  an 
estoppel  by  judgment  to  a  second  suit  for 
divorce  on  the  grounds  of  extreme  cruelty 
and  desertion,  where  different  facts  are  al- 
leged, as  the  principle  of  rea  judicata  should 
not  be  so  applied  as  to  prevent  one  deter- 
mination of  every  distinct  cause  of  action, 
under  statutes  authorizing  divorces  for  spe- 
cific and  separate  species  of  misconduct. 
Prall  V.  Prali,  26:577,  50  So.  867,  58  Fla. 
496.  (Annotated) 

46.  A  judgment  entered  in  favor  of  a 
minor  employee  against  his  employer  in  a 
suit  by  his  next  friend,  who  was  fraudu- 
lently induced  by  the  employer's  insurer  to 
bring  an  action  for  a  nominal  amount,  is 
not  a  bar  to  an  action  by  the  minor  to  hold 
the  insurer  liable  for  the  fraud.  McGillvray 
v.  Employers'  Liability  Assur.  Corp.  46:  110, 
102  N.  E.  77,  214  Mass.  484. 

///.  Equitable  estoppel   or  estoppel   in 
pais. 

a.  In  general;  effect. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Estoppel  of  municipality,  county,  town  or 
stdte,  see  supra,  I. 

To  claim  title  to  property  drifting  over 
boundary  line,  see  AojoiNrNQ  Land 
Owners. 

To  claim  title  by  adverse  possession,  see 
Adverse  Possession,  59. 

To  obtain  review  of  proceedings,  see  Appeal 
AND  Error,  91,  92,  94-97. 

Of  attorney  to  claim  contingent  fee,  see  At- 
torneys, 61. 

To  set  up  original  obligee's  breach  of, con- 
dition as  against  assignee  of  note  not 
protected  by  law  merchant,  see  Bills 
AND  Notes,  122. 

Of  building  association  to  deny  power  to 
borrow  money,  see  Building  and  Loan 
Associations,   19. 

To  rely  on  statute  of  frauds,  see  Contracts, 
308. 

Digest  1-52  L.R.A.(N.S.) 


Permitting  doctrine  of  estoppel  to  transfer 
title  of  real  estate,  see  Contracts,  247. 

To  claim  damages  for  delay  in  performance 
of  building  contract,  see  Contracts, 
704. 

Estoppel  of  court  by  rule  of  siare  decisis, 
see  Courts,  V.  b. 

By  electing  remedy,  see  Election  of  Reme- 
dies, 2. 

To  object  that  no  attempt  to  purchase  prop- 
erty was  made  by  public  service  cor- 
poration, see  Eminent  Domain,  123. 

Of  joint  executor  to  deny  liability  for  acts 
of  coexecutor,  see  Executors  and  Ad- 
ministrators, 73. 

Of  one  from  whom  property  has  been  se- 
cured by  fraud  from  claiming  it  from 
third  person,  see  Fraud  and  Deceit, 
73. 

Of  infant  by  act  of  guardian,  see  Guardian 
AND  Ward,  28. 

Of  public  autliorities  to  close  cattle  pass 
under  highway,  see  Highways,  23. 

Of  insured  or  beneficiary,  see  Insurance, 
V.  a. 

Of  insurance  company,  see  Insurance,  V. 
b. 

To  dispute  face  of  policy,  see  Insurance, 
788. 

To  set  up  illegality  of  consideration  for  deed, 
see  Judgment,  42. 

To  deny  authority  of  attorney  to  represent 
one  in  action,  see  Judgment,  336. 

Of  landlord  to  treat  tenant  as  holding  over 
under  terms  under  original  lease,  see 
Landlord  and  Tenant,  46. 

To  charge  larceny  in  mode  of  securing  goods 
where  title  was  intended  to  be  trans- 
ferred, see  Larceny,  34. 

To  recover  from  bank  which  has  paid  draft 
on  forged  indorsement,  see  Notice,  28. 

Of  administratrix  of  deceased  partner  to  dis- 
affirm sale  of  property  and  sue  for  ac- 
counting, see  Partnership,  86. 

To  claim  compensation  for  additional  use 
of  party  wall,  see  Party  Wall,  19. 

Necessity  of  pleading,  see  Pleading,  283, 
473-478. 

Sufficiency  of  allegation  as  to,  see  Plead- 
ing, 524,  525. 

Agency  or  authority  by  estoppel,  see  Princi- 
pal AND  Agent,  22. 

As  to  validity  of  local  improvement  assess- 
ment, see  Public  Improvements,  64. 

Of  railroad  to  cease  maintenance  of  ware- 
house, see  Railroads,  27. 

Of  conditional  vendor  to  reclaim  property, 
see  Sale,  155. 

To  set  up  defense  that  contract  was  made  on 
Sunday,  see  Sunday,  28. 

To  change  artificial  condition  of  water,  see 
Waters,  139,  327-330. 

To  revoke  election  under  will,  see  Wills, 
346.  t 


47.  Estoppel  may,  in  equity,  be  relied 
on  to  work  a  transfer  of  title  to  real  estate 
from  a  member  of  a  partnership  in  whose 
name  it  stands  to  grantees  of  the  firm. 
Johnson  1.  Hogan,  37:  889,  123  N.  W.  891,. 
158  Mich.  635. 


r  if'isHi 


ESTOPPEL,  III.  a. 


10;-) 


48.  The  equitable  defense  of  estoppel  in 
pais  may  be  set  up  in  a  civil  action  xinder 
the  statute,  to  determine  adverse  claims  to 
real  estate,  which  supersedes  the  old  com- 
mon-law and  equitable  actions  of  ejectment 
and  to  quiet  title,  where  the  statute  fur- 
ther provides  that  in  any  civil  action  de- 
fendant may  by  his  answer  set  up  as  many 
defenses  and  counterclaims  as  he  may  have, 
whether  they  be  such  as  have  been  hereto- 
fore denominated  legal  or  equitable,  or  both. 
Kenny  v.  McKenzie,  49:  775,  127  N.  W.  597, 
25  S.  D.  485.  (Annotated) 

49.  Evidence  that  an  execution  debtor 
had  been  in  the  possession  of  property  un- 
der a  lease  and  that  his  name  api>ear8  on 
the  window  and  safe  is  not  sufficient  to  es- 
top the  true  owner  from  asserting  title  to 
property  when  levied  upon  under  an  attach- 
ment against  such  debtor  where  the  attach- 
ment creditor  had  not  dealt  with  him  in 
reliance  on  his  apparent  ownership  and  it 
does  not  appear  that  the  owner  had  intend- 
ed to  clothe  him  with  apparent  or  ostensible 
ownership  for  the  purpose  of  enhancing  his 
credit.  Kiewel  v.  Tanner,  25:  772,  117  N. 
VV.  231,  105  Minn.  50. 

50.  The  lessee  of  the  lower  floors  of  a 
building,  who,  without  right,  attempts  to 
lease  the  roof  to  a  stranger  for  advertising 
purposes,  is  not  in  a  position  to  claim  an 
estoppel  against  interference  with  the  lease 
of  the  sign  privilege  after  the  sign  is  in 
place,  where,  when  notified  by  the  owner's 
agent,  who  discovered  signs  in  process  of 
erection  thereon,  that  he  had  no  right  to 
make  such  leases,  he  did  not  inform  the 
agent  tiiat  he  claimed  the  right  or  that  he 
had  received  compensation  for  the  lease. 
Forbes  v.  Gorman,  25:  318,  123  N.  W.  1089, 
159  Mich.  291. 

51.  One  who,  pending  a  negotiation  for 
a  lease,  places  personal  property  which  is  to 
be  the  consideration  for  it  in  possession  of 
the  other  party,  and  permits  him  to  use  it 
as  his  own  for  a  year,  is  estopped  to  assert 
title  against  one  who,  without  notice,  has 
taken  a  mortgage  upon  the  property  as  that 
of  the  one  in  possession.  Davis  v.  First 
Nat.  Bank,  25:  760,  89  S.  W.  1015,  6  Ind. 
Terr.   124.  (Annotated) 

52.  Mere  possession  and  control  of  per- 
sonal property  is  not  sufficient  to  estop  the 
real  owner  from  asserting  his  title  against 
a  person  who  has  dealt  with  the  one  in 
possession  on  the  faith  of  his  apparent  own- 
ership, but  to  work  an  estoppel  in  such  case 
the  possession  of  the  third  person  must  be 
of  such  a  character  or  he  be  so  clothed  with 
the  indicia  of  title  as  to  deceive  those  deal- 
ing with  him  in  the  belief  of  his  ownership. 
Kiewel  v.  Tanner,  25:  772,  117  N.  W.  231, 
105  Minn.  50.  (Annotated) 
KnoTvled  ere  or  reliance  of  other  party. 
See  also  infra,  133,  164. 

53.  Where  by  statute  both  spouses  must 
join  in  a  deed  of  the  homestead,  a  man  does 
not,  by  wrongfully  abandoning  his  wife,  in 
whose  name  the  title  to  the  homestead 
stands,  estop  himself  from  questioning  the 
validity  of  her  deed  to  their  children,  who 
were  cognizant  of  the  fact,  and  therefore 
Digest   1-52  I^B-A.CN.S.) 


not  misled  into  taking  the  deed  in  reliance 
on  the  belief  that  the  grantor  was  a  single 
person.  Somers  v.  Somers.  36:  1024,  131 
N.  W.  1091,  27  S.  D.  500.  (Annotated) 

54.  A  corporation  is  not  estopped  by  a 
statement  in  its  certificate  of  stock,  that 
no  transfer  of  the  stock  can  be  made  on  the 
books  of  the  corporation  without  production 
of  the  certificate,  where  the  statute  under 
which  the  corporation  is  oi-ganized  pro- 
vides that  it  may  be  done  by  court  order 
without  production  of  the  certificate  under 
certain  circumstances,  -since  the  holder  of 
the  stock,  being  charged  with  notice  of  the 
statute,  cannot  rely  on  the  corporation's 
representation  as  an  estoppel.  Shaw  v. 
Goebel  Brew.  Co.  45:  1090,  202  Fed.  408,  120 
C.  C.  A.  470. 

55.  One  wlio  permits  a  void  deed,  exe- 
cuted in  proceedings  to  foreclose  a  build- 
ing and  loan  association  mortgage  on  his 
property,  to  remain  of  record,  is  not  es- 
topped to  assert  its  invalidity  against  one 
who  purchases  all  the  assets  of  the  asso- 
ciation for  a  lump  sum  without  knowing 
the  facts  with  reference  to  the  particulai 
claim,  which  is  only  an  insignificant  part  of 
the  assets  transferred.  Cobe  v.  Lovan,  4: 
439,  92  S.  W.  93,  193  Mo.  235. 

56.  A  lessee  is  not  estopped  from  claim- 
ing under  a  written  extension  of  a  lease  as 
against  a  purchaser  of  the  property,  or  even 
as  against  the  guardian  of  his  insane  les- 
sors, by  an  answer  to  a  letter  of  the  guard- 
ian in  which  the  lessee  states  that  the  terms 
of  a  new  lease  have  not  been  signed,  where 
the  lessee  is  not  informed  of  the  guardian's 
appointment,  or  of  the  purpose  of  his  in- 
quiry, and  that  his  answer  will  be  relied 
on.  Quinn  v.  Valiquette,  14:  962,  68  At). 
515,  80  Vt.  434. 

57.  A  purchaser  of  real  estate  cannot  as- 
sert an  estoppel  against  a  lessee  of  the 
property  by  reason  of  information  given 
out  by  the  latter  concerning  the  lease, 
when  he  does  not  rely  on  it.  Quinn  v.  Vali- 
quette, 14:  962,  68  Atl.  515,  80  Vt.  434. 

58.  A  property  owner  cannot  claim  an 
estoppel  against  his  neighbor's  asserting  the 
true  boundary  line  between  them  from  the 
facts  that  the  neighbor  erected  a  fence  leav- 
ing a  strip  of  his  land  outside  of  it,  and 
that,  in  erecting  his  house,  the  property 
owner  thought  he  would  have  a  passage- 
way between  it  and  the  neighbor's  property, 
where  the  house  was  located  with  reference 
to  the  true  line  on  the  opposite  side,  so 
that  he  had  notice  of  the  facts.  Cottrell  v. 
Pickering,  10:  404,  88  Pac.  696,  32  Utah.  62. 
Change   of  position. 

59.  The  bringing  of  a  suit  for  account- 
ing by  an  administrator  against  one  who 
administered  upon  an  estate  in  which  de- 
cedent was  interested,  and  acted  as  dece- 
dent's agent  in  the  management  of  his  es- 
tate prior  to  his  death,  in  reliance  upon 
admissions  of  liability  made  to  the  admin- 
istrator, who  was  formerly  legal  adviser  of 
such  former  administrator  and  agent,  and 
to  heirs  of  decedent,  is  not  such  a  change  of 
position  as  will  estop  the  one  making  the 
admissions    from    denying    liability    in    the 


1066 


/^ 


ESTOPPEL,  HI.  b,  c. 


suit.     Barnett  v.  Kemp,  52:  1185,  1G7  S.  W. 
546,    258    Mo.    139.  (Annotated), 

60.  A  child  of  a  life  tenant  cannot,  dur- 
ing her  lifetime,  assert  as  her  "'heirs"  an 
estoppel  against  disturbance  of  a  distribu- 
tion to  her  and  her  heirs  of  property  inef- 
fectually devised  either  on  his  own  account 
or  by  her  assertion  of  it  on  his  behalf,  since 
he  cannot  identify  himself  as  "heirs,"  at 
least  where  he  has  not  been  induced  to  do, 
or  forbear  doing,  anything  by  the  conduct  of 
another,  to  furnish  the  foundation  of  an  es- 
toppel. Gerard  v.  Beecher,  15:  900,  68  Atl. 
438,  80  Conn.  363. 

61.  A  surety  on  a  note  does  not,  by  pay- 
ing the  instrument,  change  his  position  so 
as  to  be  entitled  to  rely  as  an  estoppel  upon 
representations  as  to  its  validity  by  the 
maker  of  a  note  held  by  him  as  collateral, 
wliich  were  made  after  he  assumed  his  obli- 
gation. Holzbog  V.  Bakrow,  50:  1023,  160 
S.  W.  792,  156  Ky.  161. 

In  whose  favor. 

62.  One  who  purchases  an  interest  in  an 
estate  without  examining  the  records  can- 
not hold  the  owner's  widow  estopped  to  as- 
sert her  title  to  a  parcel  of  the  property, 
b^-  the  fact  that  she  attempted  to  inventory 
it  as  belonging  to  the  estate,  if  she  refers 
to  the  source  of  title  which  the  records 
would  show  placed  the  title  in  her.  Bell  v. 
Nye,  42:  1127,  99  N.  E.  610,  255  111.  283. 

b.  Of  married  women. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Estoppel  by  deed,  see  supra,  32. 

Estoppel  to  claim  dower  rights,  see  infra, 
131;  Dower,  I.  c. 

By  commencing  divorce  suit  to  deny  hus- 
band's previous  death,  see  Insubaxce, 
481. 

Of  woman  taking  conveyance  from  spend- 
thrift husband  to  set  up  usury  in  debts 
secured  by  mortgage  executed  by  him, 
see  Usury,  34. 

See  also  infra,  147,  211,  260,  1265. 

64.  The  mere  fact  that  a  widow  accepts 
and  records  a  deed  of  land  executed  in  her 
favor  in  accordance  with  a  marriage  settle- 
ment, takes  possession  of  the  property,  and 
collects  the  rents,  does  not  estop  her  from 
electing  under  the  statute  to  take  her  stat- 
utory benefits  in  her  husband's  estate,  rath- 
er than  the  provisions  of  the  settlement,  if 
the  election  is  made  within  the  time  al- 
lowed by  statute,  and  she  tenders  back  a 
conveyance  of  the  land  and  the  rents  col- 
lected. Rowell  V.  Barber,  27:  1140,  125  N. 
W.  937,  142  Wis.  304. 

65.  A  woman  who  permits  her  real  es- 
tate to  stand  in  the  name  of  her  husband 
for  many  years  until  he  is  accepted  as  a 
surety,  to  release  an  attachment  of  proper- 
ty of  a  corporation  in  which  he  is  interested, 
upon  the  faith  of  the  record  title  and  his 
assertion  of  ownership  of  the  property,  is 
estopped  to  assert  her  title  against  the 
right  of  the  creditor,  although  she  was  guil- 
Disest  1-52  L.R.A.(N.S.) 


ty  of  no  fraud  in  the  transaction.  Gold- 
berg V.  Parker,  46:  1097,  87  Atl.  555,  87 
Conn.  99.  (Annotated) 

66.  That  a  wife  who,  with  her  husband 
was  in  posse-sion  of  land  as  a  community, 
claiming  title  when  he  took  a  written  lease 
for  the  property  from  a  rival  claimant,  re- 
fused to  sign  it,  will  not  prevent  its  con- 
stituting an  estoppel  upon  her  riglit  to  set 
up  the  community  title  in  an  action  for  un- 
lawful detainer,  where  she  remained  in  pos- 
session of  the  property  under  the  lease  un- 
til its  expiration.  Monroe  v.  Stayt,  30: 
1 102,  107   Pac.  517,  57   Wash.  592. 

67.  An  estoppel  on  a  wife,  who  with 
her  husband,  was  in  possession  as  a  com- 
munity of  real  estate  when  he  took  a 
written  lease  of  the  property  from  another 
claimant,  which  she  did  not  sign,  to  deny 
the  title  of  the  landlord,  is  not  prevented 
by  a  statute  providing  tliat  he  should  not 
sell,  convey,  or  encumber  the  community 
real  property  unless  she  joined  in  the  deed. 
Monroe  v.  Stayt,  30:  1102,  107  Pac.  517,  57 
Wash.  592.  (Annotated) 
To  assert  incapacity. 

Of  married  woman  to  deny  liability  on  note, 

see  Husband  and  \A'ife,  36. 
As  to   her   separate    estate. 

68.  Failure  to  object,  when  a  stranger 
called  in  to  effect  the  conveyance  of  real 
estate  from  wife  to  husband  makes  his  deed 
to  the  husband  after  receiving  title  from 
the  wife,  does  not  estop  her  from  contest- 
ing the  validity  of  the  conveyance  on  the 
ground  of  fraud  and  duress.  Iloag  v.  Hoag, 
36:  329,  96   N.   E.   49,  210  Mass.  94. 

c.  As  to  corporate  existence  or  poivers. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of  receiving  benefits,  see  infra,  233, 
235. 

To  set  up  defense  of  ultra  vires,  see  Corpo- 
rations; IV.  d,  2. 

69.  One  who  has  sued  a  company  as  a 
corporation  cannot,  in  the  same  suit,  deny 
that  it  is  such.  Compton  v.  People's  Gaa 
Co.  10:  787,  89  Pac.  1039,  75  Kan.  572. 

70.  An  information  in  the  nature  of  quo 
warranto,  filed  against  a  corporation  by  its 
corporate  name,  admits  the  existence  of 
the  corporation.  State  ex  rel.  Caldwell  v. 
Lincoln  Street  Railway,  14:  336,  114  N.  W. 
422,  80  Neb.  333. 

71.  Cestuis  que  trust  are  estopped  from 
pleading  the  incapacity  of  a  corporation  to 
take  title  to  real  estate  conveyed  to  it  by 
their  trustee.  State  Security  Bank  v.  Hos- 
kins,  8:  376,  106  N.  W.  764,  130  Iowa,  339. 

72.  A  person  is  not  estopped  by  dealing 
with  parties  as  a  corporation,  who  are  ac- 
tively conducting  business  for  profit  under 
an  assumed  corporate  name,  when  they 
have  no  charter,  have  filed  no  articles  of 
incorporation,  and  have  procured  no  color 
of  legal  organization  as  a  corporation,  from 
denying  that  they  constitute  a  corporation 
of  any  kind,  or  from  enforcing  their  indi- 


ESTOPPEL,  III.  d,  e. 


1057 


vidual  liability  for  the  debts  they  incur 
under  such  a  name.  Harrill  v.  Davis,  22: 
1153,  168  Fed.  187,  94  C.  C.  A.  47. 

73.  The  fact  that  a  party  to  a  contract 
■with  a  foreign  corporation  doing  business 
within  a  state  by  the  laws  of  which  it  is 
required  to  do  and  perform  certain  acts  as 
&  condition  precedent  to  the  doing  of 
business  within  that  state  has  made  numer- 
ous payments  of  interest  instalments  before 
being  sued,  and  without  objection  on  the 
^•ound  of  the  noncompliance  of  the  corpora- 
tion with  such  conditions,  does  not  consti- 
tute a  waiver  of  the  right  to  plead  the  cor- 
poration's failure  to  comply  with  the  stat- 
ute and  Constitution  of  such  state  in  order 
to  entitle  it  to  do  business  therein.  Tarr 
V.  Western  Loan  &  Sav.  Co.  21:  707,  99  Pac. 
1049,  15  Idaho,  741. 

d.  By  contracts  or  agreements  general- 
ly;  ratification. 

(See  also   same   heading  in  Digest  L.R.A. 
1-10.) 


See  also  supra,  73;  infra,  241. 

74.  That  one  claiming  ownership  of  a 
tract  of  land  upon  which  another  asserts  a 
lien  may  have  agreed  with  the  latter  or 
with  someone  else  to  pay  off  his  claims  of 
indebtedness  affords  no  reason  for  holding 
that  the  claimant  of  the  land  is  estopped 
from  setting  up  title  thereto.  Equitable 
Loan  &  Secur.  Co.  v.  Lewman,  3:  879,  52 
S.  E.  599,  124  Ga.  190. 

75.  Stipulations  in  a  written  contract 
that  neither  party  shall  be  bound  by  at- 
tempted changes  in  it,  unless  they  are  in 
writing  and  signed  by  the  parties  thereto, 
do  not  preclude  the  defense  of  fraud  in  se- 
curing the  contract.  Bonewell  v.  Jacobson, 
5:  436,  106  N.  W.  614,  130  Iowa,  170. 

76.  A  release  by  an  abutting  property 
owner  who  also  owns  the  fee  of  the  street, 
on  behalf  of  himself  and  his  successors  in 
title,  of  a  corporation  operating  an  elevated 
railroad  therein  from  any  claim  for  compen- 
sation arising  from  the  maintenance  and  op- 
eration of  the  railroad,  estops  such  succes- 
sors from  claiming  compensation  for  the  op- 
eration of  the  road,  either  in  eminent  do- 
main proceedings  or  in  an  equity  suit  to  en- 
join such  operation  until  compensation  is 
paid.  Smyth  v.  Brooklyn  U.  Elev.  R.  Co. 
23:  433,  85  N.  E.   1100,  193  N.  Y.  335. 

(Annotated) 

77.  One  who,  in  sending  an  answer  to  an 
advertised  offer  of  a  prize  for  a  correct  so- 
lution of  a  problem,  agrees  to  abide  by  the 
decision  of  the  judges,  does  not  thereby  es- 
top himself  from  contesting  their  rejection 
of  his  solution  on  a  ground  not  made  a 
condition  of  the  contest  in  the  advertise- 
ment. Minton  v.  F.  G.  Smith  Piano  Co. 
33:  305,  36  App.  D.  C.  137.        (Annotated) 

78.  One  who  sells  a  newspaper  plant 
by  contract  under  seal,  in  his  own  name, 
cannot  avoid  his  agreement  not  to  conduct 
another  paper  in  the  same  county,  upon 
the  ground  that  the  property  in  fact  be- 
Digest   1-52  i:..R.A.(N.S.)  67 


longed    to    his    wife,    and   that   he    had    no 

pecuniary     interest     in     it.       McAuliffe     v. 

Vaughan,  33:255,  70  S.  E.  322,  135  Ga.  852. 

Hatification. 

See  also  infra,  186,  228,  258. 

79.  Payment  by  the  owner  of  the  prop- 
erty of  interest  on  a  mortgage  to  which 
his  signature  was  forged,  estops  him  from 
contesting  the  validity  of  the  instrument. 
Rothschild  v.  Title  Guarantee  &  T.  Co.  41: 
740,  97  N.  E.  879,  204  N.  Y.  458. 

(Annotated) 

80.  If  the  fact  that  one  who  has  under- 
taken to  clear  the  title  to  another's  prop- 
erty and  dispose  of  it  for  part  of  the  pro- 
ceeds, when  he  purchases  with  a  portion  of 
the  property  a  judgment  against  a  third 
person  in  whose  name  the  property  for- 
merly stood,  so  that  the  judgment  is  a 
cloud  on  the  title  to  the  property,  and  per- 
mits a  transfer  of  the  judgment  to  his  prin- 
cipal, is  administrate .  of  the  judgment 
debtor,  constitutes  a  constructive  fraud,  it 
cannot  be  taken  advantage  of  by  the  person- 
al representative  of  the  property  owner,  who 
has  ratified  the  transaction.  Mills  v.  Smith, 
6:  865,  78  N.  E.  765,  193  Mass.  11. 

e.  By  conduct,   request,   or  admissions 
generally. 

(See  also  same  heading  in  Digest  L.B.A. 
1-10.) 

Of  municipality,  see  supra,  15-18. 

By  fraudulent  conduct,  see  infra.  III.  h. 
III.  i. 

Of  attorney  to  claim  his  contingent  fee,  see 
Attobnets,  61. 

Of  stockholders  who  have  transferred  stock 
to  claim  title  or  interest  therein,  see 
Corporations,  229. 

To  assert  dower,  see  Dower,  I.  c. 

To  claim  easement,  see  Easements,  87. 

By  misleading  conduct  of  insurance  com- 
pany, see  Insurance,  V.  b,  5,  b. 

Assisting  physically  in  creation  of  condi- 
tion as  affecting  one's  right  to  recover 
for  damages  to  property  caused  there- 
by, see  Railroads,  303. 

See  also  supra,  53,  56-58;  infra,  133,  141, 
158. 

81.  Merely  establishing  and  using  a 
depot  in  a  city  to  which  a  railroad  company 
has  charter  authority  to  run  does  not  estop 
the  company  from  afterwards  extending  the 
tracks  to  the  point  which  it  originally  in- 
tended to  reach.  Central  R.  Co.  v.  Union 
Springs  &  N.  R.  Co.  2:  144,  39  So.  473,  144 
Ala.    639. 

82.  ^o  act  or  conduct  of  a  husband  dur- 
ing the  lifetime  and  insanity  of  his  wife  will 
estop  either  of  them  from  claiming  their 
homestead,  or  from  recovering  it  in  an  ac- 
tion begun  while  the  wife  is  living.  Withers 
v.  Love,  3:  514,  83  Pac.  204,  72  Kan.  140. 

83.  One  who  participates  as  a  stockholder 
and  officer  in  an  improper  issuance  of  stock 
certificates  marked  "full  paid"  and  "issued 
for  property  purchased"  is  not  debarred,  l)y 
operation  of  the  maxim  In  pari  delicto  potior' 


]058 


ESTOPPEL,  III.  e. 


est  conditio  defendentis,  from  enforcing 
against  the  stockholders  any  just  claims  he 
may  have  as  a  creditor  of  tlie  company, 
since  he  is  not  seeking  to  derive  any  advan- 
tage from  the  unlawful  agreement.  Easton 
Nat.  Bank  v.  American  Brick  &  T.  Co.  (N. 
J.  Err.  &  App.)  8:  271,  64  Atl.  917,  70  N.  J. 
Eq.  732. 

84.  A  stockholder  who  participated  as- 
tively  in  a  transaction  that  resulted  in  an 
improper  issuance  of  stock  as  "issued  for 
property  purchased,"  and  himself  received  a 
part  of  such  stock, — is  not  estopped  from  par- 
ticipating as  a  creditor  in  proceedings  taken 
to  enforce  the  liability  of  delinquent  stock- 
holders, by  the  circumstance  that  their  stock 
certificates  were  marked  "full  paid"  and 
"issued  for  property  purchased,"  since  the 
stockholders  knew  the  fact  to  be  otherwise. 
Easton  Nat.  Bank  v.  American  Brick  &  T. 
Co.  (N.  J.  Err.  &  App.)  8:  271,  64  Atl.  917, 
70  N.  J.  Eq.  732. 

85.  The  owner  of  a  stock  certificate  in- 
dorsed in  blank,  who,  in  pledging  the  same 
to  a  reputable  going  bank,  is  free  from 
negligence,  is  not  estopped  from  asserting 
title  thereto  as  against  an  innocent  good- 
faith  purchaser  for  value,  who  derives  title 
through  one  who  stole  such  certificate  from 
the  bank  while  it  was  pledged,  even  though 
the  thief  be  the  cashier  of  the  bank.  Schu- 
macher v.  Greene  Cananea  Copper  Co.  38: 
180,  134  N.  W.  510,  117  Minn.  124. 

86.  Tlie  owner  of  a  certificate  of  indebt- 
edness of  a  corporation,  which  was  issued 
by  its  receivers  and  is  transferable  on  the 
books  of  the  company,  having  a  blank  for 
assignment  on  its  back,  who  indorses  it 
in  blank  and  delivers  it  to  his  brokers  for 
sale,  is  bound  by  their  act  in  transferring 
it  to  a  bona  fide  purchaser  for  value,  al- 
though the  major  portion  of  the  purchase 
price  is  represented  by  cancelation  of  their 
indebtedness  to  him.  McCarthy  v.  Craw- 
ford, 29:  252,  86  N.  E.  750,  238  111.  38. 

(Annotated) 

87.  A  memorandum  made  by  the  holder 
of  a  note  at  the  time  of  receiving  a  partial 
payment  thereon,  "Indorsement  on  princi- 
pal," followed  by  the  amount  received, 
does  not  estop  him  from  afterwards  apply- 
ing enough  of  the  payment  to  discharge  the 
interest  then  due,  since  he  has  the  option 
to  apply  the  payment  as  far  as  necessary 
in  satisfaction  of  interest  due.  Dollar  Sav. 
&  T.  Co.  v.  Crawford,  33:  587,  70  S,  E.  1089, 
69  W.  Va.  109. 

88.  When  a  bank  by  its  course  of  deal- 
ing with  a  customer  authorizes  him  to  issue 
checks  on  it,  it  .vill  be  estopped  to  say,  af- 
ter such  checks  have  come  in  good  faith  in- 
to the  hands  of  innocent  holders,  that  the 
customer  did  not  in  fact  have  any  motiey  to 
his  credit,  and  for  this  reason  decline  to  pay 
the  check.  Robinson  v.  Bank  of  Pikeville, 
37:  1166,  142  S.  W.  106.5,  146  Ky.  538. 

89.  One  who  withholds  from  record  an 
assignment  of  a  mortgage  on  property 
owned  by  a  dealer  in  real  estate  is  estopped 
from  asserting  her  rights  as  against  one 
who  purchases  the  property  on  the  faith  I 
of  a  release  bv  the  record  mortgagee,  al- 
Digest  1-52  'L.R.A.(N.S.) 


I  though  the  statute  merely  makes  an  un- 
recorded instrument  void  as  against  instru- 
ments first  recorded,  and  the  assignment  is 
actually  recorc'cd  before  the  detni  or  the 
release.  Marling  v.  Milwaukee  Realty  Co^ 
5:  412,  106  N.  W.  844,  127  Wis.  363. 

90.  Continued  participation  by  an  in- 
surer against  employers'  liability,  in  de- 
fense of  a  suit  against  the  insured  for  neg- 
ligent injuries  to  an  employee,  after  an 
amendment  placing  liability  on  the  ground 
of  employing  a  minor  contrary  to  law, 
which  ground  of  liability  is  not  covered  by 
the  policy,  will  not  estop  it  from  denying 
liability  in  case  recovery  is  placed  on  that 
ground,  where,  upon  the  filing  of  the  amend- 
ment, it  notifies  the  insured  that  it  will  not 
be  liable  in  case  the  recovery  is  on  the 
ground  stated  in  the  amendment,  and  the 
insured  thereafter  partici-pates  in  the  de- 
fense of  the  action.  Sargent  Mfg.  Co.  v. 
Travelers  Ins.  Co.  34:  491,  130  N.  W.  211, 
165  Mich.  87.  (Annotated) 

91.  The  administrator  of  one  who  had 
taken  life  insurance  in  favor  of  his  wife, 
vvhich  became  paid  up  before  the  parties 
v/ere  divorced,  so  that  by  statute  the  di- 
vorce restored  the  right  to  the  proceeds  of 
the  policy  to  him,  is  not  estopped  to  assert 
title  to  such  proceeds,  by  the  fact  that  the 
policy  is  left  in  possession  of  the  wife,  if 
the  husband  collects  the  dividends  on  it. 
Sea  V.  Conrad,  47:  1074,  159  S.  W.  622,  155 
Ky.  51. 

92.  Tlie  lessee  of  a  farm  adjoining  a 
rifle  range  is  not  estopped  to  complain  if 
the  range  is  used  so  as  to  endanger  the  lives 
of  persons  on  the  leasehold,  by  the  fact  that 
he  assisted  in  negotiating  a  lease  between 
his  landlord  and  those  operating  the  rifle 
range,  of  a  small  parcel  of  the  leasehold  to 
be  used  in  connection  with  the  range.  Joos 
V.  Illinois  National  Guard,  43:  1214,  100  N. 
E.  505,  257  111.  138. 

93.  The  filing  by  the  father,  who  is  sure- 
ty on  his  son's  note,  of  a  claim  against  the 
latter's  bankrupt  estate  for  a  sum  due  him, 
and  the  collection  of  a  pro  rata  thereon,  and 
its  deposit  by  his  attorney  in  the  bank  hold- 
ing the  son's  note,  to  be  applied  thereon  un- 
der the  mistaken  belief  that  the  father  was 
still  liable  on  the  note  as  surety,  will  not 
estop  him  from  setting  up  his  release  by  ex- 
tension of  time  to  the  son  on  the  paper. 
Morehead  v.  Citizens'  Deposit  Bank,  23:- 
141,  113  S.  W.  501,  130  Ky.  414. 

94.  The  application  for  a  mandatory  in- 
junction to  compel  the  removal  of  a  tele- 
phone pole  from  plaintilT's  land  will  not 
estop  him  from  proceeding  to  remove  it 
himself  after  notice  of  intention  to  aban- 
don the  suit  and  rely  on  such  remedy, — 
especially  where  the  owner  of  the  pole  shows 
no  disposition  to  await  the  determination 
of  its  rights  in  the  suit,  but  proceeds  to  at- 
tach fixtures  and  wires  to  the  pole,  thereby 
changing  the  status  quo.  Maryland  Teleph. 
&  Teleg.  Co.  v.  Ruth.  14:  427,  68  Atl.  358, 
106  Md.  644. 

95.  One  employed,  because  of  his  me- 
chanical skill,  to  cheapen  processes  used 
in  the  business  of  his  employer,  will  be  es- 


ESTOPPEL,  III.  e. 


1050 


topped  to  dispute  the  right  of  the  employ:  ■, 
so  long  as  he  continues  in  business,  to  use 
apparatus  and  the  process  for  which  it  was 
designed,  which  he  invented  while  so  em- 
ployed and  upon  which  he  secured  a  patent, 
to  the  extent  that  space  has  been  arranged 
in  specially  designed  buildings  to  accom- 
modate the  apparatus  with  his  knowledge 
and  under  his  direction.  Barber  v.  National 
Carbon  Co.  5:  1154,  129  Fed.  370,  64  C.  C.  A, 
40.  (Annotated) 

96.  A  vendee  of  articles  to  be  furnished 
by  successive  deliveries,  the  first  of  which 
was  defective  in  quality,  of  which  fact  lie 
made  complaint,  but  subsequent  deliveries 
of  which  substantially  complied  with  the 
contract  and  were  accepted,  is  estopped  by 
such  acceptance  from  claiming  a  release  from 
his  obligation  to  receive  and  pay  for  de- 
liveries thereafter  made,  on  account  of  the 
defects  in  the  earlier  deliveries.  McDonald 
v.  Kansas  City  Bolt  &  Nut  Co.  8:  mo,  149 
Fed.  360,  79  C.  C.  A.  298.  (Annotated) 

97.  A  purchaser  of  a  set  of  books  to  be 
delivered  one  at  a  time  and  paid,  for  as 
delivered  is  estopped  to  insist  on  continued 
pevforirance  by  the  seller,  where,  after  he 
has  failed  to  pay  for  several  books  deliv- 
ered, and  has  been  notified  that  the  con- 
tract has  been  rescinded,  he  pays  no  at- 
tention to  demands  for  payment  for  the 
volumes  received,  and  makes  no  demand  for 
future  deliveries  for  more  than  two  years, 
until  the  price  of  the  books  has  been  ad- 
vanced; and  it  is  immaterial  that  payment 
for  the  volumes  received  is  subsequently 
paid  by  one  to  whom  the  contract  had  been 
assigned.  Quarton  v.  American  Law  Book 
Co.  32:  I,  121  N.  W,  1009,  143  Iowa,  517. 

(Annotated) 

98.  A  refusal  of  a  property  owner  to  ac- 
cept a  tender  of  a  cash  price  for  his  prop- 
erty, on  the  ground  that  it  was  not  enough, 
does  not  estop  him,  in  a  suit  by  the  broker 
for  his  commission,  to  set  up  "as  a  defense 
that  the  tender  did  not  comply  with  the 
terms  on  which  the  broker  was  authorized 
to  sell  the  property.  Jepsen  v.  Marohn, 
21:  935,  119  N.  W.  988,  22  S.  D.  593. 

To  deny  relation  of  master  and  serv- 
ant. 

99.  Paying  employees  of  a  subcontractor 
with  its  own  checks  does  not  estop  a  con- 
tractor from  denying  its  relation  of  master 
to  such  employees,  where  the  checks  on  their 
face  show  that  they  are  on  account  of  the 
pay  roll  of  the  subcontractor.  Good  v.  John- 
son, 8:  896,  88  Pac.  439,  38  Colo.  440. 

(Annotated) 
100.  The  mere  facts  that  a  contractor  for 
railroad  construction  work  runs  a  board- 
ing house  at  which  employees  of  a  subcon- 
tractor are  permitted  to  take  their  meals, 
and  that  some  of  the  pay  of  such  employees 
is  applied  toward  the  expense  of  a  hospital 
maintained  by  the  contractor  for  the  benefit 
of  all  parties  working  on  the  job,  do  not 
estop  him  from  denying  the  relation  of  mas- 
ter to  an  employee  of  the  subcontractor, 
where  there  is  nothing  to  show  that  the  em- 
Digest  1-52  Ii.R.A.CN.S.) 


ployee  was  misled  thereby.     Good  v.  John- 
son, 8:  8g6,  88  Pac.  439,  38  Colo.  440. 
To  deny  agency  or  autliority  of  agent. 

Of  municipality,  see  supra,  14. 
See  also  infra,  189. 

101.  A  carrier  is  not  estopped  to  deny  the 
authority  of  a  station  agent  to  make  a  con- 
tract for  it,  by  retaining  a  payment  to 
which  it  was  entitled  independent  of  sucn 
contract,  although  claimed  to  have  been 
made  thereunder.  Chicago,  M.  &  St.  P.  R. 
Co.  y.  Kelm,  44:  995,  141  N.  W.  295,  121 
Minn.  343. 

102.  Recognition  by  a  principal  of  au- 
thority in  his  agent  to  draw  drafts  upon 
him  is  an  admission  of  obligation  to  accept 
them,  and  estops  him  from  repudiating  lia- 
bility on  such  draft,  although  he  had  never 
admitted  funds  in  his  hands  or  other  obliga- 
tion to  accept.  Valiquette  v.  Clark  Bros. 
Coal  Min.  Co.  34:  440,  77  Atl.  869,  83  Vt. 
538. 

To    deny   validity    of   marriage. 

103.  One  who,  having  a  wife  living,  con- 
tracts marriage  with  another  and  cohabits 
with  her,  is  not  estopped  from  denying  the 
validity  of  the  marriage  for  the  purpose  of 
defeating  the  right  of  her  heirs  to  share  in 
their  estate  as  comnmnity  property.  Sloan 
V.  West,  17:  960,  96  Pac.  684,  50  Wash.  86. 

104.  Petitioning  for  administration  on  the 
estate  of  one  with  whom  petitioner  con- 
tracted a  marriage  does  not  estop  him  from 
disputing  the  validity  of  the  marriage  be- 
cause of  the  fact  that  he  had  a  prior  wife 
living.  Sloan  v.  West,  17:  960,  96  Pac.  684^ 
50  Wash.  86. 

Admissions. 

See  also  infra,  219. 

105.  Admissions  or  declarations  of  the 
holder  of  the  legal  title  to  land  that  have 
not  induced  any  action  or  inaction  in  oth- 
er claimants,  or  worked  any  change  in 
their  status,  do  not  constitute  an  estop- 
pel. Lake  v.  Weaver  (N.  J.  Err.  &  App.) 
34:  495,    74    Atl.    451,    76   N.    J.    Eq.    280. 

106.  A  woman  suing  to  partition  land  be- 
longing to  her  divorced  husband,  who  has 
established  no  equity  in  it,  cannot  avail 
herself  of  admissions  made  by  him  in  an 
action  brought  by  a  former  owner  of  the 
land  to  recover  possession  of  it,  in  which 
he  set  up  an  interest  originating  before  the 
divorce  was  granted.  Wingard  v.  Win- 
gard,  25:  453,  105  Pac.  834,  56  Wash.  389. 

107.  The  acknowledgment  by  a  tenant 
that  a  right  of  way  over  adjoining  property 
is  permissive  and  subject  to  revocation  will 
not  bind  him  after  he  secures  title  to  the 
landlord's  estate,  to  which  the  right  of  way 
is  appurtenant.  Schwer  v.  Martin,  7:  614, 
97  S.  W.  12,  29  Ky.  L.  Rep.  1221. 

(Annotated) 

108.  ITie  admission,  either  directly  or  by 
failure  to  deny,  of  liability  on  a  note' sued 
on,  does  not  preclude  defendant  from  plead- 
ing a  set-off  or  cciunterclaim.  Mendcnhall 
V.  Davis,  21:914,  100  Pac.  336,  52  Wash. 
169. 


:1060 


ESTOPPEL,  III.  f,  g,  1. 


/.  By  assent. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Estoppel  by  consent  to  raise  question  on 
appeal,  see  Appeal  and  Errob,  532- 
634. 

Of  one  who  has  consented  to  placing  of 
earth  on  lot  as  support  to  adjoining 
street  to  require  its  removal,  see  Dedi- 
cation, 3. 

Laches  barring  right  to  enjoin  material  de- 
parture from  restrictive  covenants,  see 
Injunction,  84, 

109.  A  landlord  who  assents  by  parol  to 
the  assignment  of  the  lease,  and  accepts 
rent  from  the  assignees,  knowing  that  they 
«re  claiming  under  the  lease,  estops  himself 
rfrom  claiming  that  the  lease  provided  that 
•consent  to  its  assignment  must  be  in  writ- 
ing, where  no  forfeiture  is  provided  for 
«,S8ignment  without  written  consent.     Field 

v.  Copping,  36:  488,  118  Pac.  329,  65  Wash. 
359.  (Annotated) 

110.  A  borrowing  member  of  a  loan  asso- 
ciation is  not  estopped  from  demanding  a 
dissolution  of  the  contractual  relations  ex- 
isting   between    him    and    the    association, 

,  which  has  suspended  the  payment  of  dues 
on  its  stock  by  its  members  for  an  unrea- 
sonable time,  so  as  to  work  a  material  de- 
parture from  its  general  plan  of  satisfying 
loans  made  to  its  members,  by  his  having 
voted  for  an  amendment  to  the  by-laws  of 
the  association,  conferring  upon  its  directors 
power  to  suspend  payment  of  dues.  Burk- 
heimer  v.  National  Mut.  Bldg.  &  L.  Asso. 
4:  1047,  53  S.  E.  372,  59  W.  Va.  209. 

111.  A  tenant  in  common  of  land  which 
has  been  sold  by  his  cotenant  cannot  com- 
plain of  the  placing  of  the  whole  property  in 
the  hands  ol  a  receiver  after  he  has  been  ad- 
judged his  portion  of  the  rents  which  came 
to  the  receiver's  hands,  and,  by  consent 
order,  agreed  to  pay  his  share  of  the  ex- 
penses of  the  receivership.  Ft.  Jefferson 
Improv.  Co.  v.  Dupoyster,  2:  263,  66  S.  W. 
1048,  112  Ky.  792, 

i  112.  A  lien  creditor  of  a  judgment  debtor, 
who  was  not  a  party  to  the  proceedings  in 
which  the  judgment  was  rendered,  is  not, 
by  consenting  to  the  appointment  of  a  re- 
ceiver in  aid  of  execution,  es^"  pped  to  ob- 
ject to  the  possession  and  control  of  the 
property  by  the  receiver.  First  Nat.  Bank 
V.  Cook,  2:  1012,  76  Pac.  674,  12  Wyo,  492. 

113.  One  who,  through  mistake,  permits 
the  erection  of  a  building  partly  on  his  land, 
is  not  thereby  estopped  from  asserting  his 
rights  when  he  learns  for  the  first  time  of 
the  encroachment.  Davis  v.  Owen,  13:  728, 
58   S.   E.  581,   107   Va.   283. 

114,  After  the  maintenance  of  a  railroad 
awitch  in  a  public  street  for  twenty  years 
under  the  express  consent  of  the  abutting 
owners,  neither  those  who  gave  the  consent, 
nor  their  successors  in  title,  are  entitled  to 
injunctive  relief  against  the  alleged  nui- 
sance. Wolfard  v.  Fisher,  7:  991,  84  Pac. 
850,  48  Or.  479.  (Annotated) 
Digest  1-52  I..R.A.(N.S.) 


115.  Estoppel,  by  a  subscriber  to  the  cost 
of  a  factory,  to  question  the  validity  of  an 
assignment  of  the  contract  for  its  construc- 
tion, is  not  shown  by  the  facts  that  he  per- 
mitted the  completion  of  the  work  without 
objection,  and  that  a  committee  of  sub- 
scribers certified  to  the  completion  of  the 
work,  where  he  had  no  knowledge  of  the  as- 
signment, and  the  committee  had  no  author- 
ity to  consent  to  a  substitution  of  contract- 
ors. Johnson  v,  Vickers,  21 :  359,  120  N. 
W,  837,  139  Wis.  145. 

116.  A  convict  who  assents  to  a  void  pro- 
vision in  his  sentence,  that  it  shall  not  be 
executed  during  good  behavior,  cannot  take 
advantage  of  its  invalidity  when  the  sen- 
tence is  sought  to  be  enforced  against  him, 
nor  of  the  fact  that  the  original  term  of 
sentence  has  elapsed.  Fuller  v.  State,  39: 
242,  57  So.  6,  806,  100  Miss.  811. 

g.  By  laches,  silence,  or  acquiescence. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Of  municipality,  see  supra,  6-14. 

Of  state,    see   supra,   23;    Municipal  Cob- 

POBATIONS,  1. 

Of  consignee  to  assert  common  law  liability 
of  carrier,  see  Carriers,  797. 

To  assert  dower  rights,  see  Dowiat,  15. 

By  failure  to  assert  forfeiture  of  insur- 
ance policy,  see  Insurance,  V.  b,  5,  c. 

To  set  up  illegality  of  consideration  for 
deed,  see  Judgment,  42. 

See  also  supra,  96,  97,   114,   115. 

Laches  as  bar  to  action,  see  Limitation  of 
Actions,  I.  b. 

Estoppel  to  require  second  payment  of  taxes 
paid  to  wrong  officer,  see  Taxes,  260. 

117.  Mere  failure  of  a  conditional  vendor 
to  assert  title  at  a  bankruptcy  sale  of  the 
vendee's  property  will  not  estop  it  from 
claiming  the  property  from  a  purchaser  at 
the  sale.  Myrick  v.  Liquid  Carbonic  Co. 
38:  554,  73  S.  E.  7,  137  Ga.  154. 

118.  Mere  failure  by  persons  who  had 
contributed  towards  the  expenses  of  pros- 
pecting for  mines  in  consideration  of  a 
share  in  the  enterprise,  to  take  steps  to 
reach  an  interest  which  their  representative 
had  acquired  as  a  result  of  his  trip  in  an 
enterprise  with  strangers,  until  it  had 
proved  to  be  very  profitable,  will  not  bar 
a  recovery  if  they  had  no  knowledge  of  the 
particular  facts  on  which  their  rights  de- 
pended. Lind  V.  Webber,  50:  1046,  134  Pac, 
461,  36  Nev.  623. 

119.  One  having  a  valid  claim  against  an- 
other for  services  is  estopped  to  assert  it 
against  the  latter's  estate,  by  remaining 
silent,  though  present,  when  the  latter  is 
negotiating  for  the  services  of  another,  to 
be  compensated  by  her  entire  estate  after 
death,  against  which  she  states  that  there 
are  no  claims.  Pond  v.  Pond,  8:  212,  65  Atl. 
97.   79   Vt.   352. 

120.  One   who   fails   to   object   to   a   wit- 


ESTOPPEL,  III.  g,  1. 


1061 


ness's  answer  to  a  question  because  not 
responsive  tiiereto,  and  permits  it  to  be  re- 
corded, cannot,  upon  a  second  trial,  object 
on  that  ground  to  tlie  reading  of  it  to  the 
jury  after  the  witness  is  dead.  Sherman 
Gas  &  Electric  Co.  v.  Belden,  27:  237,  123 
S.  W.  119,  103  Tex.  59. 

121.  The  failure  of  a  plaintiff  in  a  libel 
suit  to  carry  on  the  schedules  filed  in  his 
bankruptcy  proceedings  his  claim  for  dam- 
ages arising  out  of  libel  will  not  estop  him 
from  pursuing  his  action  for  libel,  when 
the  /position  of  the  defendant  has  been 
changed  in  no  way  by  his  failure  to  do  so. 
Irion  V.  Knapp,  43:  940,  60  So.  719,  132  La. 
60. 

122.  A  party  to  a  contract  to  compound 
a  felony  cannot  estop  himself  from  main- 
taining an  action  to  set  aside  the  instru- 
ment for  illegality  of  consideration,  by 
conduct  in  depriving  the  accuser  of  reme- 
dies against  accused,  or  by  laches  in  fail- 
ing promptly  to  take  steps  for  relief.  Col- 
by V.  Title  Ins.  &  T.  Co.  35:  813,  117  Pac. 
913,  160  Cal.  632. 

123.  A  corporation  is  estopped  from  com- 
plaining that  judgment  went  against  it  in 
a  wrong  name,  by  going  to  trial  on  the 
merits  without  objecting  to  the  misnomer 
or  disclosing  its  true  name.  University  of 
Louisville  v.  Hammock,  14:  784,  106  S.  W. 
219,  127  Ky.  564. 

124.  The  doctrine  of  estoppel  in  pais  can- 
not be  applied  in  favor  of  the  inhabitants 
of  a  town  against  one  controlling  a  ditch 
which  furnishes  the  public  water  supply, 
unless  by  his  action  or  silence  he  has  con- 
curred in  allowing  the  public  and  individuals 
to  so  use  and  enjoy  the  water  that  to  there- 
after deprive  them  of  it  would  work  an  in- 
justice or  fraud  upon  them,  and  invade  the 
right  founded  on  the  presumption  he  has  al- 
lowed to  be  raised.  Hailey  v,  Riley,  17:  86, 
95  Pac.  G86,  14  Idaho,  481. 

125.  That  a  charitable  corporation  has 
permitted  a  judgment  to  go  against  it  for 
the  negligence  of  its  agent  and  its  property 
to  be  sold  under  an  execution  does  not  pre- 
vent it  from  maintaining  an  action  to  re- 
cover possession  of  the  property.  Fordyce 
V.  Woman's  Christian  Nat.  Library  Asso. 
7:  485,  96  S.  W.   155,  79  Ark.  550. 

126.  The  indorser  of  a  promissory  note 
cannot,  after  paying  it,  make  the  conten- 
tion that  the  presentment  to  the  maker  was 
not  sufficient  to  charge  him  with  liability. 
Rogers  v.  Detroit  Sav.  Bank,  i8:  530,  110 
N.  W.  74,  146  Mich.  639. 

127.  Interested  parties  who  acquiesce  in  a 
sale  by  a  trustee  appointed  under  a  will 
upon  petition  of  the  widow  of  testator  are 
estopped  to  question  the  validity  of  the  sale 
because  they  were  not  made  parties  to  the 
proceedings  for  appointment  of  the  trustee. 
Haggin  v.  Straus,  50:  642,  146  S.  W.  391, 
148  Ky.  140. 

To  object  to  public  improTement  as- 
sessment. 

128.  One  who  fails  to  object  to  the  forma- 
tion of  a  drainage  district,  or  the  inclusion 
of  his  lands  therein,  or  to  the  proceedings 
under  which  the  indebtedness  of  the  district 
Digest   1-52  L.R.A.(N.S.) 


for  preliminary  expenses  is  determined,  is 
estopped  in  a  proceeding  to  enforce  an  as- 
sessment against  his  property  for  a  share 
of  such  expenses,  to  object  to  anything  but 
the  constitutionality  of  the  law  under  which 
the  proceedings  were  had.  Northern  P.  R. 
Co.  V.  Pierce  County,  23:  286,  97  Pac.  1099, 
51   Wash.   12. 

129.  A  property  owner  whose  property  is 
so  situated  that  it  cannot  be  benefited  by 
a  public  improvement  cannot,  where  the 
facts  do  not  appear  on  the  face  of  the  rec- 
ord, ignore  the  proceedings  to  fix  the  bound- 
aries of  the  assessment  district,  of  which 
he  has  notice,  and  resort  to  a  court  of 
equity  in  the  first  instance  to  relieve  him 
from  an  assessment  for  benefits  against  his 
property  on  account  of  such  improvement, 
since,  having  misled  the  authorities  into 
the  belief  that  his  property  would  share  in 
the  expense,  he  is  estopped  to  contest  his 
liability.  Power  v.  Helena,  36:  39,  116  Pac. 
415,  43  Mont.  336.  (Annotated) 
To   object   to   acconnt   rendered. 

130.  One  who  accepts  and  retains,  for  a 
long  period  without  objection,  an  account 
rendered,  together  with  the  balance  shown 
to  be  due  thereon,  irrevocably  assents  to  the 
account  so  that  he  cannot  subsequently  take 
steps  to  falsify  it.  Ripley  v.  Sage  Land  & 
Improv.  Co.  23:  787,  119  N.  W.  108,  138  Wis. 
304. 

To   claim   dojurer. 

131.  A  woman  is  estopped  from  claiming 
dower  rights  in  property  conveyed  by  her 
husband  by  deeds  in  which  one  claiming 
to  be  his  second  wife  joined,  where,  having 
knowledge  of  a  pretended  divorce  which  she 
thought  to  be  invalid,  and  the  conveyance 
of  property  by  him  which  should  be  signed 
by  his  wife,  she  remained  silent,  and  per- 
mitted him  to  marry  the  other  woman,  and 
hold  her  out  to  the  world  as  his  lawful 
wife.  H.  W.  Wright  Lumber  Co.  v.  Mc- 
Cord,  34:  762,  128  N.  W.  873,  145  Wis.  93. 

(Annotated) 
As   to    insurance. 
See  Evidence,  551. 
As   to   forgery    of    signature. 

132.  One  having  notice  of  facts  sufficient 
to  put  him  on  inquiry  as  to  the  forged  in- 
dorsement by  his  attorney  of  a  draft  in  his 
favor,  at  a  time  when  the  bank  has  assets 
of  the  attorney  in  its  possession  sufficient 
to  protect  itself,  and  who  attempts  to  collect 
the  money  from  the  attorney,  and  fails 
to  notify  the  bank  until  after  it  has  parted 
with  the  assets,  is  estopped  to  look  to  the 
bank  for  reimbursement.  Brown  v.  People's 
Nat.  Bank,  40:657,  136  N.  W.  506,  170, 
Mich.   416.  (Annotated) 

133.  One  may  by  conduct,  statements,  or 
silence  estop  himself  from  claiming  that 
his  signature  is  a  forgery;  but  before  he 
can  be  estopped  by  mere  silence,  facts  must 
be  alleged  and  proven  showing  a  duty  and 
opportunity  to  speak,  that  he  knew  or  had 
reason  to  believe  that  the  holder  of  the 
forged  instrument  would  rely  on  his  silence, 
and  that  the  holder  in  fact  did  rely  on 
his  silence,  and  was  in  fact  injured  there- 


1062 


ESTOPPEL,  III.  g,  2. 


by.     Shinew  v.  First  Nat.   Bank,  36:  1006, 
95  N.   E.  881,  84  Ohio  St.  297. 
Of  legatee. 

134.  Where  a  testator  bequeathed  prop- 
erty to  three  members  of  his  lodge  upon 
the  promise  of  one,  made  in  the  presence 
of  the  others,  that  they  would  transfer  it 
to  the  lodge,  equity  may  compel  them  to 
effect  the  transfer.  Winder  v.  Scholey,  33: 
995,  93  N.  E.  1098,  83  Ohio  St.  204. 

As    to    divorce    decree. 
Sec  also  supra,  131. 

135.  Estoppel  of  a  wife  to  contest  the  va- 
lidity of  a  divorce  decree  absolutely  void  for 
lack  of  jurisdiction,  which  will  prevent  per- 
sons claiming  under  her  from  securing  her 
distributive  sliare  of  her  husband's  estate, 
is  not  shown  by  evidence  that  she  left  her 
husband,  for  cause,  and  did  not  seek  to  have 
the  decree  set  aside  during  the  sixteen  years 
that  elapsed  before  her  death,  and  testimony 
of  a  single  person  that  she  once  wrote  a  let- 
ter, which  was  not  produced,  claiming  to 
liave  been  divorced  and  still  to  own  proper- 
ty as  a  feme  sole,  where  it  was  not  shown 
that  she  ever  /signed  any  deed  as  a  single 
woman  and  it  appears  that  she  never  mar- 
ried again,  that  she  notified  persons  buying 
land  of  the  husband  that  she  was  still  his 
wife,  and  that  until  his  death  she  claimed 
that  she^was  his  wife  and  insisted  that  the 
divorce  was  a  fraud.  Sammons  v.  Pike, 
23:  1254,  120  N.  W.  540,  108  Minn.  291. 

136.  A  defendant  in  a  divorce  proceeding, 
who  accepts  the  amount  awarded  her,  and, 
after  a  delay  of  six  and  one-half  years,  insti- 
tutes a  suit  for  divorce  in  another  state,  in 
which  she  is  defeated,  is  estopped,  after  a 
considerable  further  delay  until  plaintiff 
has  contracted  another  marriage,  from  at- 
tacking the  divorce  decree  for  fraud.  Bid- 
well  V.  Bidwell,  2:  324,  52  S.  E.  55,  139  N. 
C.  402. 

2.  As  to  real  property, 

a.  In  general. 

(See  also   same  heading   in  Digest  L.R.A. 
1-70.) 

To  assert  dower  rights,  see  D«web,  I.  c. 
Laches  as  bar  to  action,  see  Limitation  of 

Actions,  I.  b,  2. 
See  also  supra,  29;  infra,  254. 

137.  The  fact  that  the  statute  of  limita- 
tions has  not  run  against  a  right  to  recover 
possession  of  real  estate  will  not  prevent 
the  application,  in  bar  of  the  action,  of  the 
doctrine  of  equitable  estoppel  by  laches. 
Kenny  v.  McKenzie,  49:  775,  127  N.  W.  597, 
25  S.  D.  485. 

138.  Merely  taking  the  acknowledgments 
of  a  conveyance  by  the  grantor  of  his  re- 
maining property  in  which  a  wife  taken 
after  the  former  conveyance  is  required  to 
join  does  not  require  the  holder  of  an  un- 
recorded deed  of  real  estate  to  disclose  his 
deed,  sc  as  to  estop  him  from  asserting  his 
title  in  case  the  wife  joins  in  the  deed  with-  : 
out  knowing  of  the  former  couvevance. 
Digest  1-52  KR.A.(N.S.) 


Beechley  v.  Beechley,  9:  955,  108  N.  W.  762, 
134  Iowa,  75. 

139.  Failure  of  remaindermen  to  insist 
that  the  life  tenant  make  the  necessary  re- 
pairs upon  the  property  does  not  estop 
them  from  holding  his  estate  answerable 
for  the  cost  of  those  he  should  have  made. 
Prescott  V.  Grimes,  33:  669,  136  S.  W.  206, 
143   Ky.   191. 

140.  Where  a  man  has  no  power  to  convey 
his  homestead  M'ithout  joinder  by  his  wife, 
failure  promptly  to  move  to  set  aside  a  deed 
made  by  him  while  she  was  insane,  after 
her  recovery,  will  not  estop  either  from 
denying  the  validity  of  the  conveyance. 
Bushnell  v.  Loomis,  36:  1029,  137  S.  W.  257, 
234  Mo.  371. 

141.  Ignorance  on  the  part  of  a  mortgagor 
of  real  estate,  of  the  fact  that  an  attempt- 
ed assignment  of  the  mortgage  which  con- 
tains a  power  of  sale,  was  not  in  the  form 
required  by  statute,  so  as  to  be  entitled  to 
record,  and  that  therefore  the  sale  by  the 
assignee  was  illegal,  does  not  prevent  the 
operation  against  his  right  to  recover  the 
property,  of  the  doctrine  of  estoppel  by 
conduct  and  laches,  where  he  permits  a  fore- 
closure by  the  assignee,  surrenders  posses- 
sion to  him,  and  the  property  is  sold  to  a 
stranger  who  satisfies  a  prior  encumbrance, 
pays  taxes,  makes  improvements,  and  holds 
possession  for  several  years,  during  which 
the  property  increases  in  value,  although 
the  assignee  was  equally  ignorant  of  the 
defect,  and  the  mistake  was  therefore  a  mu- 
tual mistake  of  law,  where  he  does  not  show 
that  he  acted  promptly  upon  discovering 
his  rights,  and  makes  no  offer  to  reimburse 
the  purchaser  for  his  outlav.  Kenny  v.  Mc- 
Kenzie, 49:  775,  127  N.  W.  597,  25  S.  D.  485. 

142.  One  who  proceeds  against  the  pro- 
test and  objection  of  another,  to  erect  an 
obstruction  constituting  a  nuisance,  cannot 
complain  because  the  party  protesting  de- 
layed ten  days  before  bringing  suit  to  re- 
strain the  nuisance,  which  had  been  com- 
pleted in  the  meantime.  Bischof  v.  Mer- 
chants' Nat.  Bank,  5:  486,  106  N.  W.  096. 
75  Neb.  838. 

Annexation  of  land  to  city. 

143.  Where  city  authorities  have,  by  ordi- 
nance, extended  the  city  limits  so  as  to  in 
dude  an  addition  or  tract  of  land,  and  the 
inhabitants  thereof  and  all  parties  affectea 
thereby  have  acquiesced  in  the  action  of  tbe 
city  authorities,  and  have  transacted  their 
business  upon  the  theory  that  such  territory 
was  included  within  the  city  limits,  a  pub- 
lic-service corporation  will  not  be  allowed 
to  question  the  validity  of  such  action  of 
the  city  council,  in  a  collateral  attack,  after 
the  lapse  of  five  years.  Hatch  v.  Consumers* 
Co.  40:  263,  104  Pac.  670,  17  Idaho,  204. 

As   to   \7ater  and  trater  rights. 
By    permitting    improvements    or    expendi- 
tures, see  infra,  159-162. 
See  also   infra,   253. 

144.  A  riparian  proprietor  who  makes  no 
protest  or  objections  to  the  improvement  of 
a  stream  by  deepening  and  widening  and 
straightening  the  same,  and  cutting  away 
timber  along  the  banks  thereof,  by  a  com- 


ESTOPPEL,  III.  g,  2. 


]0G3 


pany  that  represents  to  him  that  it  is  act- 
ing under  a  license  and  franchise  from  the 
state,  is  not  estopped,  by  his  inaction  or 
■quiescence,  from  thereafter  maintaining  an 
Action  against  the  company  for  damages 
caused  in  the  overflowihg  of  his  land,  and 
depositing  logs  and  timber  and  debris 
thereon,  which  is  directly  caused  by  the 
cutting  away  of  the  timber,  and  the  weak- 
ening of  the  banks,  and  the  erection  of 
■splash  dams  above  his  land,  whereby  the 
■volume  of  water  in  the  stream  is  greatly 
Augmented  and  a  flooding  is  caused.  Mash- 
burn  V.  St.  Joe  Improvement  Co.  35:  824, 
113  Pac.  92,  19  Idaho,  30.  (Annotated) 

As    to    railroad    company. 

145.  One  who  has  granted  a  right  of  way 
to  a  railroad  company  on  condition  that  it 
■complete  its  road  within  a  specified  time  is 
not  estopped  from  enforcing  the  condition 
"by  permitting  the  railroad  company  to  en- 
ter and  construct  its  grade,  if  that  is  doni; 
within  the  time  specified.  Oregon  R.  &  Nav. 
Co.  V.  McDonald,  32:  117,  112  Pa.  413,  58 
Or.  22s. 

146.  Although  acquiescence  of  a  land- 
owner in  the  construction  of  a  railway  on 
his  land  would  pi'eclude  him  from  there- 
after maintaining  ejectment  and  from  ob- 
taining an  injunction,  it  does  not  devest 
him  of  the  title  to  the  property  taken, 
And  is  not  inconsistent  with  an  assumption 
on  his  part  that  the  company  would  pay^ 
him  a  reasonable  compensation  therefor, 
And  his  consequent  right  to  recover  such 
•compensation  upon  failure  or  refusal  of 
the  company  so  to  recompense.  Boise  Val- 
ley Constr.  Co.  v.  Kroeger,  28:  968,  105 
Pac.  1070,  17  Idaho,  384. 

Permitting  title  to  stand  in  another's 

name. 
See  also  supra,  55,  65;  infra,  265. 

147.  The  mere  failure  of  a  woman  immedi- 
Ately  to  enforce  the  promise  of  her  husband 
to  convey  to  her  real  estate  which  he  has 
purchased  with  her  funds,  and  the  title  to 
which  he  has  taken,  without  authority,  in 
Tiis  own  name,  does  not,  in  the  absence  of 
iraud,  estop  her  from  relying  on  a  deed  in 
■execution  of  the  promise,  made  after  he 
became  bankrupt,  although  he  was  in  busi- 
ness, and  credit  was  given  him,  without  her 
knowledge,  on  the  faith  of  the  property. 
Blake  v.  Meadows,  30:  i,  123  S.  W.  868,  225 
Mo.  1.  (Annotated) 

b.  Permitting  improvements  or  expedi- 
tures. 

(See  also   same   heading   in  Digest   L.R.A. 
1-70.) 

To  restrain  violation  of  restrictive  covenant, 

see  CovEXANTS  and  Conditioxs,  46. 
See  also  Limitation  of  Actions,  40. 

148.  Heirs  of  a  life  tenant  who  are  given 
«  remainder  in  the  property  are  not  es- 
topped from  recovering  the  property  from 
grantees  of  the  life  tenant,  by  permitting 
them  to  take  possession  and  make  valuable 
improvements  on  the  property,  and  by  fail- 
Digest  1-52  I<.R.A.(N.S.) 


ing  to  bring  an  action  to  assert  their  rights 
until  the  death  of  the  life  tenant,  where 
they  had  no  interest  in  the  property  which 
would  entitle  them  to  bring  such  action 
until  the  death  of  the  life  tenant.  West- 
cott  V.  Meeker,  29:  947,  122  N.  W.  964,  144 
Iowa,  311. 

149.  The  fact  that  one  of  the  owners  of 
the  surface  of  land  in  fee  subject  to  certain 
mining  rights,  who  had  no  interest  in  the 
oil  and  gas  under  the  land,  assisted  the 
holder  of  the  oil  and  gas  lease  in  making 
a  road  across  the  land,  does  not  thereby 
estop  him  to  complain  of  an  injury  result- 
ing from  the  building  of  the  road,  where 
the  road  was  for  the  apparent  purpose  of 
prospecting  for  oil  and  gas,  a  purpose  '■  hich 
was  afterward  abandoned  by  the  lessee. 
Coffindaflfer  v.  Hope  Natural  Gas  Co.  52:  473, 
81  S.  E.  966,  —  W.  Va.  — . 

150.  A  stockholder  of  a  railroad  company, 
dissenting  from  an  attempt  to  consolidate 
the  road  with  others,  who,  instead  of  taking 
prompt  steps  to  prevent  such  consolidation, 
waits  until  after  it  is  an  accomplished  fact 
and  vast  public  and  private  interests  have 
attached  under  the  new  conditions,  will  not 
be  permitted  to  come  into  a  court  of  equity 
for  a  forfeiture  of  the  corporate  charter, 
the  appointment  of  a  receiver,  and  the  re- 
scission of  the  merger,  but  will  be  remitted 
to  his  action  under  the  statute  for  compen- 
sation for  his  stock.  Spencer  v.  Seaboard 
Air  Line  R.  Co.  i:  604,  49  S.  E.  96,  137  N. 
C.  107. 

151.  Merely  filling  in  with  dirt  is  not 
such  a  permanent  improvement  as  will  en- 
title the  one  making  it  to  claim  an  estoppel 
because  of  it,  against  one  who,  by  mistake, 
located  his  fence  inside  his  true  boundary 
line  so  that  the  filling  was  done  between  the 
fence  and  boundary.  Cottrell  v.  Pickering, 
10:  404,  88  Pac.  690,  32  Utah,  62. 

152.  Estoppel  will  prevent  the  recovery  of 
property  by  one  who  deeded  it  to  an  alien 
who,  under  the  Constitution,  was  incompe- 
tent to  take,  where  he  stood  by  for  thirteen 
years  and  permitted  valuable  improvements 
on  the  property,  which  greatly  increased  in 
value  because  of  the  growth  of  the  city. 
Abrams  v.  State,  9:  186,  88  Pac.  327,  45 
Wash.  327. 

153.  One  entitled  to  have  a  pass  way  kept 
open  across  another's  farm  will  be  estopped 
from  claiming  his  rights  if,  without  objec- 
tion, he  permits  the  owner  of  the  farm  to 
close  it,  and  fails  for  several  years  to  take 
legal  steps  to  have  it  reopened,  during  which 
the  owner  has  expended  large  sums  of  mon- 
ey in  cleaning  up  the  land  and  rendering 
it  fit  for  cultivation,  and  has  made  improve- 
ments and  rearranged  his  fences,  on  the 
theory  that  the  pass  way  no  longer  existed. 
Trimble  v.  King,  22:  880,  114  S.  W.  317,  131 
Ky.  1.  ^  (Annotated) 

154.  One  entitled  to  the  use  of  a  pass  w  ay 
across  another's  farm  will  not  be  estopped 
from  objecting  to  its  closure  by  the  fact 
that  others,  equally  interested,  permit  tlie 
owner  to  expend  large  sums  of  money  in 
improvements,  depending  on  its  being  closed, 
if   he    himself   was   ignorant   of    such   fact. 


1064 


ESTOPPEL,  HI.  h. 


Thimble  v.  King,  22:  880,  114  S.  W.  317,  131 
Ky.  1. 

155.  A  landowner  through  whose  lands 
locations  have  been  condemned  for  the  pur- 
pose of  laying  pipe  lines  to  serve  tlie  public 
with  natural  gas  is  not  prevented  from  en- 
joining the  use  of  other  locations  on  his 
land  than  those  condemned,  because  he 
failed  to  stand  by  and  object  at  the  time 
the  pipe  lines  were  laid,  as  it  is  the  duty 
of  the  condemnor  to  use  only  the  lands 
legally  taken,  and  the  landowner  ia  not 
bound  to  see  that  such  duty  is  performed. 
Lovett  V.  West  Virginia  C.  Gas  Co.  24:  230, 
65  S.  E.  196,  65  W.  Va.  739. 

In  street. 

156.  The  owner  of  the  fee  of  a  highway 
who  permits  an  electric  power  company  to 
construct  its  line  along  the  highway  for 
the.  purpose  of  furnishing  light  and  power 
to  the  public,  without  bringing  an  action  to 
prevent  it  until  after  the  public  service  has 
begun,  will  be  granted  damages  only  for 
the  invasion  of  his  rights,  and  cannot  re- 
quire removal  of  the  line.  Gurnsey  v. 
Northern  California  Power  Co.  36:  185,  117 
Pac.  906,  160  Cal.  699. 

157.  Permitting  the  completion  of  a  street 
improvement  before  taking  steps  to  question 
its  validity  because  of  uncertainty  in  the  no- 
tice does  not  estop  the  property  owner  from 
obtaining  relief.  Johns  v.  Pendleton,  46: 
990,  133  Pac.  817,  134  Pac.  312,  66  Or,  182. 

158.  An  owner  of  real  estate  who  had  di- 
rect notice  of  a  special  assessment  agairst 
his  property  for  the  building  of  a  side- 
walk, by  reason  of  which  he  had  ample  op- 
portunity to  contest  the  levying  of  the 
assessment,  but  did  nothing,  and  who  had 
knowledge  of  the  construction  of  the  side- 
walk and  acquiesced  therein,  cannot,  in  a 
suit  in  equity  by  the  municipality  for  the 
enforcement  of  the  lien  of  the  assessment, 
take  advantage  of  any  omissions  or  irregu- 
larities in  the  ordinance  providing  for  the 
construction  of  the  sidewalk,  but  is  estopped 
by  his  conduct  from  so  doing,  where  no  con- 
stitutional right  had  been  violated.  An- 
derson V.  Ocala,  52:  287,  64  So.  775,  —  Fla. 

As   to  'orater  and  tvater  rights. 

159.  An  injunction  against  the  diversion 
of  water  from  plaintiff's  land  cannot  be 
denied  on  the  theory  that  he  stood  by  and 
permitted  the  development  of  water  to  be 
made  to  successful  operation  without  ob- 
jection, if  he  brought  the  action  as  soon  as 
it  reasonably  appeared  that  that  proposed 
diversion  would  affect  his  supply.  Miller 
V.  Bay  Cities  Water  Co.  27:  772,  107  Pac. 
115,  157  Cal.  256. 

160.  Mere  failure  to  object  to  the  con- 
struction on  other  land  of  a  dam  and  canal 
which  will  affect  a  lake  on  one's  land  will 
not  estop  him  from  maintaining  an  action 
for  injunction  in  case  ttie  lake  is  destroyed 
by  the  works,  where  tlierc  is  nothing  to 
show  that  he  knew  that  such  would  be  the 
result.  Madson  v.  Spokane  Valley  Land  & 
Water  Co.  6:  257,  82  Pac.  718,  40  Wash.  414. 

161.  Owners  of  land  over  a  subterranean 
basin,  who  have  been  accustomed  to  use  the 
Digest   1-52  I..R.A.(N.S.) 


water  therefrom,  will  not  be  granted  an 
injunction  to  restrain  the  taking  of  water 
from  the  basin  by  a  public-service  corpora- 
tion to  supply  people  beyond  its  limits,, 
through  wells  which  it  sinks  to  maintain 
the  amount  of  its.  original  appropriation 
during  periods  of  drought,  where,  with  full 
knowledge  of  the  facts,  they  stand  by  until 
large  amounts  of  m(  ■  'v  have  been  expended 
upon  the  wells,  and  they  have  been  in  op- 
eration for  at  least  two  years.  Barton  v. 
Riverside  Water  Co.  23:  331,  101  Pac.  790,. 
155  Cal.  509. 

162.  A  riparian  owner  is  not  estopped 
from  objecting  to  the  diversion  of  flood  wa- 
ter from  a  river,  to  his  injury,  by  the  fact 
that  he  permitted  the  construction  of  a 
reservoir  at  large  expense  without  objec- 
tion, where  he  did  not  know  that  the  pur- 
pose of  the  reservoir  was  to  store  the  flood 
water  until  within  a  few  days  prior  to  hi» 
instituting  proceedings  to  prevent  it,  sup- 
posing that  the  reservoir  was  to  store  other 
water  to  which  the  owner  had  a  right.  Mil- 
ler &  Lux  V.  Madera  Canal  &  Irrig.  Co.  22: 
391,  99  Pac.  502,  155  Cal.  59. 

h.  By  representations. 

(See  also   same   heading  in  Digest  L.R.A^ 
1-10.) 

Of  heirs  by  representations  of  ancestor,  see 

infra,  261. 
See  also  supra,  61 ;  infra,  260. 

163.  In  order  to  establish  an  equitable  es- 
toppel against  one  asserting  his  title  to 
real  property,  the  party  attempting  to- 
raise  it  must  show  either  an  actual  fraudu- 
lent representation,  or  concealment,  or  such 
negligence  as  would  amount  to  a  fraud  in 
law,  and  that  the  party  setting  up  such 
estoppel  was  actually  misled  thereby  to  in- 
jury. Dye  v.  Crary,  9:  1136,  85  Pac.  1038,. 
13  N.  M.  439. 

164.  Where  false  representations  are 
made  by  a  vendor  in  the  sale  of  property,, 
the  application  of  the  doctrine  of  equitable 
estoppel  does  not  necessarily  depend  upoa 
the  knowledge  of  the  vendor  of  the  falsity 
of  the  representations,  but  may  rest  upon 
the  principle  that  one  who,  by  representing 
that  a  certain  state  of  facts  exists,  has 
misled  another,  is  precluded  from  denying 
the  truth  of  such  representations  and  from 
setting  up  a  claim  inconsistent  with  the 
facts  as  represented,  where  such  claim  would 
result  in  loss  to  the  other  and  operate  a» 
a  fraud  upon  him.  Westerman  v.  Corder, 
39:  550,  119  Pac.  868,  86  Kan.  239. 

(Annotated) 
365.  If  one  holding  the  legal  title  to  land 
under  an  unrecorded  deed  represents  tliat 
the  title  is  in  another  person  who  appear* 
from  the  record  to  be  the  owner,  and  that 
such  other  person  has  the  right  to  sell  and 
make  a  bond  f  ■•  title  to  the  land,  he  M'ill 
be  estopped  from  denying  the  title  of  such 
person,  where  an  innocent  purchaser  for 
value,  in  reliance  on  such  rei)resentation, 
is  induced  to  accept  a  bond  for  title  from 


ESTOPPEL,  III.  i. 


1065 


the  latter,  to  give  notes  for  the  purchase 
nionev,  and  to  pay  some  or  all  of  them. 
Seweil  V.  Norris,  13:  11 18,  58  S.  E.  637,  128 
Ga.  824. 

166.  One  having  a  cropping  contract  with 
a  cotenant  of  a  parcel  of  land,  who  deliber- 
ately misstates  the  interest  of  such  tenant 
to  the  other  cotenant,  when  he  inquires  as 
to  such  interest  after  having  the  land 
awarded  to  him  in  partition  proceedings,  is 
■estopped  to  set  up  the  true  contract  after 
the  one  receiving  the  information  has  acted 
upon  it.  Schultz  v.  Denison,  ^5:  1249,  123 
N.  W.  1094,  159  Mich.  259. 

167.  A  statement  by  a  mortgagee  aa  to 
the  amount  due  to  a  purchaser  of  the  equity 
of  redemption,  after  the  completion  of  his 
purchase,  does  not  estop  the  mortgagee  or 
his  assignee  from  enforcing  the  mortgage 
ior  a  greater  amount  than  stated.  Assets 
Realization  Co.  v.  Clark,  41:462,  98  N.  E. 
457.  205  N.  Y.  105. 

168.  An  assignee  of  a  note  based  on  a 
gambling  transaction,  with  knowledge  of 
the  consideration  upon  which  it  is  based, 
■cannot  enforce  payment  of  it,  although  be- 
fore he  purchased  it  the  maker  assures  him 
that  it  is  valid  and  will  be  paid.  Holzbog 
V.  Bakrow,  50:  1023,  160  S.  W.  792,  156  Ky. 
161. 

169.  Makers  of  a  note  in  a  gaming  trans- 
action which  by  statute  is  void  may,  by  in- 
ducing strangers  to  purchase  it  bona  fide 
for  value  by  representing  that  it  is  valid 
and  will  be  paid,  estop  themselves  from 
<3ontesting  its  validity.  Holzbog  v.  Bakrow, 
30:  1023,  160  S.  W.  792,  156  Ky.  161. 

(Annotated) 

170.  An  applicant  for  a  state  tax  certifi- 
cate for  a  liquor  business  to  be  conducted 
on  a  Federal  military  reservation  is  not  es- 
topped to  contest  the  validity  of  the  bond 
-conditioned  for  the  proper  conducting  of 
the  business,  by  representations  as  to  his 
right  to  carry  on  the  business  there.  Far- 
ley V.  Scherno,  47:  1031,  101  N.  E.  891,  208 
Is\  Y.  269. 

171.  One  owning  a  pond  and  the  stock  of 
a  railway  company  which  has  drawn  water 
from  the  pond  by  his  permission  does  not, 
by  the  sale  of  the  stock,  as  an  inducement 
to  which  the  pond  is  shown  as  part  of  the 
property  of  the  railway  company,  confer 
upon  the  railway  company  a  right  to  the  use 
of  the  water,  so  as  to  enable  it  and  the 
owner  of  its  stock  to  maintain  a  suit  to  en- 
join interference  therewith.  Coal  Belt  Elec- 
tric R.  Co.  V.  Peabody  Coal  Co.  13:  11 44, 
«2  N.  E.  627,  230  111.  164. 

172.  An  officer  of  a  corporation  who,  in 
negotiating  a  sale  of  its  real  estate,  points 
out  boundaries  which  include  land  belong- 
ing to  himself,  and  lets  the  purchaser  into 
possession  upon  payment  of  the  purchase 
money,  is,  together  with  his  grantees  with 
notice,  estopped  to  contest  the  purchaser's 
suit  to  quiet  title,  although  the  abstract 
and  deed  tendered  would  have  disclosed  the 
true  title,  if  careful  examination  of  the  ab- 
stract was  reasonably  delayed,  and  the 
grantee  acted  promptly  upon  discovering 
the  facts.  Knauf  &  Tesch  Co.  v.  Elkhart 
Digest  1-52  Ii.R.A.(N.S.) 


Lake  Sand  &  Gravel  Co.  48:  744,  141  N.  W. 

701,   153   Wis.   306.  (Annotated) 

By  infant  as  to  his  age. 

Of  infant  falsely  representing  age  to  recover 
damages  for  personal  injuries  against 
master,  see  Master  and  Sebvant,  154- 
156,   173-176. 

173.  A.  minor  cannot  estop  himself  from 
disaffirming  his  contract  by  false  represen- 
tations that  he  is  of  full  age.  Tobin  v. 
Spann,  16:  672,  109  S.  W.  534,  85  Ark.  556. 

174.  Representations  made  by  an  infant 
as  to  his  being  of  age,  in  order  to  estop 
him  from  disaffirming  a  contract  made  by 
him  during  infancy,  must  have  been  fraud- 
ulently made  by  the  infant,  and  believed 
in,  relied  on,  and  acted  upon  by  the  other 
party.  Putnal  v.  Walker,  36:  33,  55  So. 
844,  61  Fla.  720.  (Annotated) 

175.  Asserting  majority  in  a  contract 
signed  by  him  does  not  estop  an  infant  from 
setting  up  his  minority  in  defense  of  liabil- 
ity on  the  contract.  International  Text- 
Book  Co.  V.  Connelly,  42:  11 15,  99  N.  E. 
722,  206  N.  Y.  188. 

176.  An  infant  who  in  personal  appear- 
ance, family  surroundings,  and  business 
activities  appears  to  be  of  age,  will  not  be 
permitted  to  rescind  a  sale  of  his  land  for 
a  reasonable  price  under  the  representation 
that  he  was  of  age,  the  trade  being  fairly 
made  and  the  grantee  parting  with  the  con- 
sideration without  notice  of  the  infancy. 
County  Bd.  of  Edu.  v.  Hensley,  42:  643,  144 
S.  W.  63,  147  Ky.  441.  (Ajinotated) 

177.  A  boy  is  estopped  to  set  up  the  fact 
that  he  conveyed  real  estate  to  his  father 
when  under  age,  for  the  purpose  of  defeat- 
ing the  title  of  the  father's  grantee,  where 
he  was  present  at  the  father's  transfer,  saw 
the  money  paid  on  the  faith  of  the  title  be- 
ing good,  and  expressly  stated  that  he  was 
of  age  when  he  made  his  convevance.  Sack- 
ett  V.  Asher,  22:  453,  112  S.  W.  833,  —  Ky. 

178.  A  minor  who,  by  false  representa- 
tions that  he  is  of  age,  aided  by  his  mature 
appearance,  induces  another  to  enter  into 
a  contract  with  him  under  the  belief  that  he 
is  of  full  age,  of  which  he  accepts  the  bene- 
fit, cannot  set  up  his  minority  in  defense 
of  an  action  upon  the  contract.  Commander 
V.  Brazile,  9:  11 17,  41  So.  497,  88  Miss.  668. 

(Annotated) 

I.  By  negligence  or  fraud. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70J 

Negligence    generally. 

Setting  aside  contract  for  fraud  notwith- 
standing negligence,  see  Equity,  60. 

Failure  of  grantor  to  read  deed  before 
signing  to  bar  relief  therefrom  in 
equity,  see  Equity,  92. 

Of  insurance  agent,  see  Insurance,  V.  b,  4. 

See  also  supra,  163;   infra,  192. 

179.  A  grantee  of  land  who  permits  hia 
name  to  appear  in  the  deed  so  illegibly  that 
a  mistake  may  easily  be  m^ide  in  copying 
it  into  the  record  is  estoppel  to  deny  that 


1066 


ESTOPPEL,  III.  i. 


a  mistaken  name  so  copied  is  tlfe  true  one, 
in  favor  of  a  purchaser  at  a  tax  sale  after 
jLUblication  of  notice  in  the  name  appearing 
in  the  record.  White  v.  Himmelberger- 
Harrison  Lumber  Co.  42:  151,  139  S.  W.  553, 
240  Mo.  13. 

180.  Failure  of  the  holder  of  an  unre- 
corded purchase  money  mortgage  on  real 
estate  to  give  notice  thereof  does  not  estop 
him  from  setting  it  up  to  defeat  the  title 
of  a  foreign  corporation  which  purchased 
the  property  without  complying  with  the 
provisions  of  the  local  statute  necessary  to 
enable  it  to  do  business  in  the  state,  under 
which  circumstances  the  statute  provides 
that  its  contract  shall  be  wholly  void. 
Hanna  v.  Kelsey  Realty  Co.  33:355.  129 
N.  W.   1080,   145  Wis.   276. 

181.  A  creditor  who,  by  reason  of  a  mis- 
take in  his  debtor's  credits,  surrenders  a 
written  guaranty  of  the  indebtedness  at  a 
time  when  the  debtor  is  solvent,  is  estopped 
from  subsequently,  after  discovering  the 
mistake  and  the  debtor  has  become  insol- 
vent, atte-  pting  to  enforce  the  liability 
of  the  guarantor.  Marshall  Field  &  Co.  v. 
Sutherland,  13:  576,  113  N.  W.  770,  136 
Iowa,  218.  (Annotated) 

182.  Failure  to  read  a  contract  before 
signing  it  will  not  prevent  a  party  from 
taking  advantage  of  the  fact  that  the  oth- 
er party  misread  it  to  him,  so  as  to  create 
the  impression  that  it  contained  the  same 
matter  as  that  embraced  in  the  oral  agree- 
ment, or  wrote  a  contract  different  from 
that  agreed  upon.  Western  Mfg.  Co.  v. 
Cotton  &  Long,  12:  427,  104  S.  W.  758,  126 
Ky.  749. 

183.  One  who  has  signed  a  guaranty  sup- 
posing it  to  be  a  document  of  a  different 
character  is  not  estopped  by  his  carelessness 
in  signing  the  document  without  reading  it, 
from  setting  up  the  defense  in  an  action 
thereon  that  he  never  signed  the  guaranty, 
and  that  his  signature  was  obtained  frqm 
him  by  fraud,  inasmuch  as  he  was  under 
no  duty  in  the  matter  to  the  person  to 
whom  the  guaranty  was  delivered  by  the 
one  whose  debt  it  purported  to  guarantee, 
and  the  proximate  cause  of  the  plaintiff's 
loss  was  the  fraudulent  action  of  the  lat- 
ter and  not  the  defendant's  supposed  negli- 
gence. Carlisle  and  Cumberland  Bkg.  Co.  v. 
Bragg,  4  B.  R.  C.  653,  [1911]  1  K.  B.  489. 
Also  Reported  in  80  L.  J.  K.  B.  N.  S.  472, 
104  L.  T.  N.  S.  121.  (Annotated) 
Negligence  as  to  commercial  paper. 
Of    bank    by    certification    of    check,    see 

Banks,  34. 
Of  depositor  by  failure  to  discover  altera- 
tions in  checks,  see  Banks,  144-146. 

184.  A  bank  which,  after  indorsing  a  note 
to  its  president  for  collection  and  receiving 
from  him  a  reindorsement  to  its 'own  or- 
der, transfers  the  note  for  value  to  another 
without  striking  out  its  indorsement,  is 
estopped  to  deny  its  liability  to  its  trans- 
feree as  indorser  in  blank.  Moore  v.  First 
Nat.  Bank,  10:  260,  88  Pac.  385,  38  Colo. 
336.  (Annotated) 

185.  A  depositor  whose  failure  to  e;:am- 
ine  his  bank  book  and  vouchers  with  rea- 
sonable care  and  diligence,  and  to  notify  the 
Digest  1-52  I<.R.A.(N.S.) 


bank  of  the  fact  that  some  of  the  check* 
nave  been  fraudulently  altered,  has  misled 
the  bank,  to  its  injury,  is  estopped  from 
asserting  a  claim  against  the  bank  for  mon- 
ey subsequently  paid  out  by  it  on  similar 
checks.  National  Dredging  Co.  v.  Farmers' 
Bank,  16:  593,  69  Atl.  607,  6  Penn.  (Del.) 
580. 

186.  A  bank  which  has  sustained  damagea 
by  reason  of  the  negligent  failure  of  a  de- 
positor to  examine  his  bank  book  and 
vouchers,  and  to  notify  the  bank  that  some 
of  the  checks  have  been  fraudulently  al- 
tered, cannot  invoke  against  him  either  the 
equitable  doctrine  of  ratification  or  of  es- 
toppel. National  Dredging  Co.  v.  Farmers*^ 
Bank,  16:  593,  69  Atl.  607,  6  Penn.  (Del.) 
580. 

187.  A  bank  which  has  paid  an  overdraft 
of  a  local  agent  upon  the  bank  account  of 
his  principal,  who  resides  in  another  state^ 
without  ascertaining  the  authority  of  the 
agent,  cannot  assert  failure  of  the  prin- 
cipal to  examine  the  pass  book  and  returned 
vouchers  after  the  balancing  of  the  account, 
as  an  estoppel  upon  the  principal  to  deny 
liability  for  the  overdraft.  Merchants'  Nat. 
Bank  v.  Nichols  &  S.  Co.  7:  752,  79  N.  E. 
38,  223  111.  41. 

188.  That  a  bank,  when  taking  a  note- 
payable  a  certain  time  after  a  future  date,, 
as  collateral  for  a  present  loan,  knows 
that  it  is  given  in  accordance  with  a  build- 
ing contract,  by  which  it  is  not  to  be  ex- 
ecuted until  the  building  has  been  com- 
pleted and  all  liens  paid,  does  not  entitle 
the  maker  to  set  up  nonperformance  of 
the  building  contract  as  a  defense  to  the 
note,  if  it  was  made  negotiable  and  deliv- 
ered to  the  payee  before  the  time  called 
for  by  the  contract,  and  the  pledgee  did 
not  know  that  the  contractor  could  not 
or  did  not  intend  to  perform  his  contract. 
Flood  V.  Petry,  46:  861,  132  Pac.  250,  165^ 
Cal.  309.  (Annotated) 

189.  One  who  places  signed  checks  writ- 
ten on  ordinary  white  paper,  without  stamp- 
ing them  with  the  safety  device,  or  with 
unfilled  spaces  in  them,  in  the  hands  of  a 
clerk  who,  to  the  knowledge  of  the  bank, 
has  authority  to  prepare  checks  for  signa- 
ture and  present  them  for  payment,  is^ 
estopped  in  an  action  to  hold  the  bank  lia- 
ble for  a  balance  representing  amounts  paid 
to  such  clerk  on  checks  raised  or  altered 
by  him,  without  knowledge  of  the  forgery 
or  circumstances  calling  for  inquiry,  to- 
contest  the  clerk's  authority  to  raise  the 
check,  and  cannot,  therefore,  hold  the  bank 
liable  as  for  the  payment  of  forged  paper. 
Otis  Elevator  Co.  v.  First  Nat.  Bank,  41: 
529,    124   Pac.   704,   163   Cal.   31. 

(Annotated) 

190.  The  beneficiary  in  a  deed  of  trust  of 
real  estat-^  to  secure  notes  is  not  negligent 
in  surrendering  a  note  without  cancelation 
when  it  is  paid,  as  the  result  of  which  a. 
fraud  is  committed  by  securing  the  sale 
of  the  property  under  it  to  the  detriment 

i  of  the  security  of  the  other  notes,  so  as  to 
subordinate  his  equities  to  those  of  one 
claiming  an  interest  derived  from  such  sale,. 

but  who  has  not  secured  the  title  or  paid 


ESTOPPEL,  III.  j,  1. 


3067 


the  purchase  money.     Wasserman  v.  Metz- 
ger.  7:  1019,  54  S.  E.  893,  105  Va.  744. 

191.  The  maker  of  a  note  who  places  it  in 
another's  hands  for  negotiation  is  bound  by 
his  breach  of  his  agreement  to  hold  the 
note  until  certain  payments  have  been  made 
thereon,  and  by  his  acts  in  failing  to  indorse 
payments  thereon  and  negotiating  it  to  an 
innocent  purchaser  for  value  without  notice 
of  the  payments,  and  he  cannot  therefore 
claim  the  payments  as  credits  as  against 
such  purchaser.  Keardan  v.  Cockrell,  50: 
87,  103  Pac.  457,  54  Wash.  400, 

Fraud. 

Estoppel   by  fraudulent  representation,   see 

supra,  III.  h. 
Estoppel  to  set  up  fraud  against  bona  fide 

purchaser,  see  Fkaud  and  Deceit,  69. 
Of  insurance  agent,  see  Insurance,  V.  b,  4. 
See  also  supra,  163;  Contracts,  569;  Fraud 

AND  Deceit,  25. 

192.  A  grantee,  who,  in  dealing  with  a 
grantor  unable  to  read,  deliberately  alters 
the  terms  of  the  agreement,  an;!,  when  re- 
quested to  read  the  deed  which  he  has  pre- 
pared, begins  to  do  so,  out  desists  on  the 
plea  of  lack  of  time,  and  scuros  the  signa- 
ture upon  his  assurance  that  the  deed  cor- 
rectly expresses  the  agreement,  cannot  es- 
capo  liability  for  his  fraud  by  pleading  the 
negligence  of  the  grantor.  Griffin  v.  Roa- 
noke K.  &  Lumber  Co.  6:  463,  53  S.  E.  307, 
140  N.  C.  514.  (Annotated) 

193.  One  who,  for  the  purpose  of  defraud- 
ing creditors  of  the  real  owner  of  land 
whose  deed  is  unrecorded,  accepts  a  bond 
for  title  from  a  person  who  appears  from 
the  record  to  be  the  owner,  cannot  urge  an 
equitable  estoppel  against  the  real  owner 
so  as  to  prevent  him  from  asserting  his 
title,  if  he  can  do  so  without  relying  on  or 
taking  advantage  of  the  fraudulent  transac- 
tion. Sewell  v.  Norris,  13:  1118,  58  S.  E. 
637,  128  Ga.  824.  (Annotated) 

194.  A  vendor  of  real  property  who  has 
violated  his  covenants  to  the  original  vendee 
by  conveying  the  same  property  to  a  subse- 
quent vendee  cannot  be  heard  to  complain, 
at  the  suit  for  breach  of  such  covenant,  of 
the  prior  vendee's  failure  promptly  to  re- 
cord his  deed,  whereby  he  lost  the  title  and 
right  of  possession  as  against  the  subse- 
quent vendee,  who  placed  his  deed  of  record 
in  advance  of  the  recording  of  the  first  deed. 
Madden  v.  Caldwell  Land  Co.  21:  332,  100 
Pac.  358,  16  Idaho,  59. 

195.  A  mother  is  estopped  to  claim  title 
to  her  son's  property  where,  just  prior  to 
his  death,  she  and  his  wife  attended  his 
bedside,  and  upon  his  stating  that  he 
wanted  his  wife  to  have  his  property,  and 
asking  his  mother  if  that  was  satisfactory, 
she  replied  in  the  affirmative,  in  conse- 
quence of  which  he  made  no  will  or  con- 
veyance of  the  property.  McDowell  v.  Mc- 
Dowell, 31:  176,  119  N.  W.  702,  141  Iowa, 
286.  (Annotated) 

196.  A  stockholder  of  a  corporation  who 
renders  it  insolvent  by  transferring  to  it 
his  stock  for  its  assets  is  estopped  from 
claiming  that  he  thereby  ceased  to  be  a 
stockholder  to  avoid  the  statutory  stock- 
Digest  1-52  L.R.A.(N.S.) 


holder's  liability  to  future  creditors.  At- 
lanta &  W.  Butter  &  Cheese  Asso.  v.  Smith, 
32:  137,  123  N.  W.  106,  141  Wis.  377. 

197.  The  time  within  which  a  cause  may 
be  removed  from  a  state  to  a  Federal  court 
being  a  requirement  of  mode  and  form,  and 
not  of  jurisdiction,  it  is  a  subject  of  waiver 
and  estoppel,  and  a  party  who  fraudulently 
attempts  to  prevent  such  a  removal  by  the 
injection  of  a  fictitious  cause  of  action  into 
the  case,  whereby  the  defendant  fails  to 
file  his  petition  therefor  within  the  statu- 
tory time,  is  estopped  to  object  that  the 
petition  for  removal  was  not  filed  in  time, 
as  he  cannot  take  advantage  of  his  own 
wrong.  Boatmetfs  Bank  v.  Fritzlen,  22: 
1235,  89  Pac.  915,  75  Kan.  479. 

j.  By  inconsistency  in  acts,  claims,  etc. 

1.  In  general, 

(See   also   same   heading   in  Digest   L.R.A. 
1-70.) 

Of  municipality,  see  supra,  14,  19,  20. 

Of  state,  see  supra,  24. 

Waiver  by  mortgagee  of  chattels  of  lien  by 

levy    of    attachment    on    property,    see 

Chattel  Mortgage,  55. 
By  denial  of  liability  on  insurance  policy, 

see  Insurance,  V.  b,  5,  f. 
Of  beneficiary  of  insurance,  see  Insurance, 

481. 
Of  employer  to  rely  on  other  reason  for  dis- 
charge  than    that    stated,    see   Master 

and  Servant,  103. 
Waiver   of   right   of   action   for   unlawfully 

draining  lake,  see  Waters,  183. 
See  also  supra,  146. 

198.  The  buyer  of  goods  who  has  re- 
pudiated the  contract  and  refused  to  accept 
the  goods  when  subsequently  tendered,  upon 
a  ground  upon  which  he  was  not  entitled 
to  rely,  cannot,  upon  being  sued  for  the  dif- 
ference between  the  contract  price  and  the 
price  at  which  the  goods  have  been  resold, 
claim  that  h,e  was  not  bound  to  accept  the 
goods  tendered  because  they  did  not  conform 
to  description,  since  by  refusing  to  take 
delivery  on  the  ground  that  he  had  re- 
pudiated the  entire  contract,  he  waived  the 
performance  of  conditions  precedent  on  the 
part  of  the  sellers.  Braithwaite  v.  Foreign 
Hardwood  Co.  3  B.  R.  C.  580,  [1905]  2 
K.  B.  543.  Also  Reported  in  74  L.  J.  K.  B. 
N.  S.  688,  92  L.  T.  N.  S.  637,  21  Times 
L.  R.  413,  10  Com.  Cas.  189,  10  Asp.  Mar. 
L.  Cas.  52.  (Annotated) 

199.  Denial  by  a  party  of  the  fact  that 
an  attorney  ever  acted  for  him  as  such  pre- 
vents him  from  maintaining  a  summary 
proceeding  to  compel  delivery  by  the  attor- 
ney of  documents  which  he  claims  to  hold 
under  an  attorneys'  lien  for  compensation 
for  services  performed.  Re  Niagara,  L.  & 
O.  Power  Co.  38:  207,  97  N.  E.  33,  203  N.  Y. 
493.  (Annotated) 

200.  Whore  the  defendant  in  an  action 
for  injury  to  an  automobile  acted  virtually 


1068 


ESTOPPEL,  III.  j,  2,  3. 


as  appraiser  between  the  plaintiflf,  an  in- 
surance company,  and  the  owner  of  the  ma- 
chine, and  the  plaintiff  has  paid  the  owner 
the  amount  of  the  loss  fixed  by  such  ap- 
praisement, the  defendant  is  estopped  to  in- 
troduce evidence  as  to  the  value  of  the 
machine.  Travelers'  Indemnity  Co.  v. 
Fawkes,  45:  33i,  139  N.  W.  703,  120  Minn. 
353. 

201.  The  mere  fact  that  a  chattel  mort- 
gagee puts  the  mortgagor  to  expense  in  de- 
fending against  an  attachment  of  the  prop- 
erty does  not  estop  him  from  foreclosing 
his  mortgage  in  case  the  attachment  suit  is 
dismissed  without  trial.  Stein  v.  McAuley, 
27:  692,  125  N.  W.  336,  147  Iowa,  630. 

202.  A  bank  whose  officers  appear  as  wit- 
nesses in  response  to  subpoena  in  a  suit  by 
an  undisclosed  principal  for  transmission  of 
a  forged  message  is  not  estopped  by  that 
fact  from  maintaining  a  suit  on  its  own 
behalf  for  injury  caused  to  it  as  the  true 
principal  by  the  forgery.  Wells  v.  Western 
U.  Teleg.  Co.  24:  1045,  123  N.  W.  371,  144 
Iowa,  605. 

203.  A  corporation  which  has  issued 
stock  certificates  bearing  on  their  face  the 
statement  that  the  stock  is  fully  paid  is 
estopped,  in  favor  of  an  innocent  purchaser 
for  value,  from  asserting  that  such  is  not 
the  fact,  although  by  the  laws  under  which 
the  corporation  is  organized  a  holder  of  cer- 
tificates is  not  owner  of  the  stock  until  he 
has  paid  for  it.  Westminster  Islat.  Bank  v. 
New  England  Electrical  Works,  3:  551,  62 
Atl.  971,  73  N.  H.  465. 

204.  A  creditor,  by  participating  in  an 
insolvency  proceeding  begun  by  a  voluntary 
deed  of  assignment  insufficient  in  form  to 
be  efl'ectual  to  convey  real  property  situated 
in  another  state,  may  become  estopped  to  im- 
peach a  purported  title  of  a  purchaser  of 
such  property,  acquired  in  good  faith  in 
the  progress  of  such  proceeding.  Kirken- 
dall  V.  Weatherley,  9:  515,  109  N.  W.  757, 
77  Neb.  421. 

205.  Brothers  and  sisters  by  renouncing 
in  favor  of  their  mother  the  succession  of  a 
deceased  brother  do  not  estop  themselves 
from  contesting  the  right  of  persons  claiming 
a  share  in  the  mother's  estate  as  children 
of  the  deceased  brother.  Succession  of 
Gabisso,  11:  1082,  44  So.  438,  119  La.  704. 

206.  One  having  an  option  to  purchase 
real  property,  which  requires  him,  upon 
notice  of  another  bona  fide  offer  for  the 
property,  immediately  to  pay  a  certain 
amount  on  the  contract,  cannot,  after  re- 
ceiving the  notice  and  attempting  to  comply 
with  his  agreement,  excuse  an  insufficient 
compliance  by  claiming  that  the  offer  was 
not  bona  fide,  or  that  it  was  not  received 
within  proper  time.  Rude  v.  Levy,  24:  91, 
96  Pac.  560,  43  Colo.  482. 

207.  Declarations  as  to  absence  of  a  part- 
nership do  not  estop  the  one  claiming  its 
existence  from  asserting  it  against  the  oth- 
er alleged  partner  if  the  latter  did  not  know 
of,  or  act  to  his  prejudice  upon,  them. 
Fryer  v.  Harken,  23:  477,  121  N.  W.  526, 142 
Iowa,  708. 

To   deny   official   character. 

208.  A  person  who  holds  himself  out  as 
Digeit  1-52  ]:«R.A.(N.S.) 


an  officer  under  color  of  authority,  and 
who  solicits  and  accepts  a  bribe,  has  no 
right  to  defend  and  be  discharged  on  the 
ground  that,  as  a  matter  of  law,  he  had 
no  right  to  act  as  sucii  officer.  Ex  parte 
Winters,  51:  1087,  140  Pac.  164,  10  Okla. 
Crim.  Rep.  592. 

209.  That  one  in  collecting  fines  assumes 
to  do  so  by  color  of  his  office  does  not  estop 
him  from  denying  his  autliority  to  do  so,  in 
defense  of  a  prosecution  against  him  under 
a  statute  providing  for  punishment  of  an 
officer  who  appropriates  to  his  own  use  mon- 
ey belonging  to  the  county  that  has  come 
into  his  possession  by  virtue  of  his  office. 
Hartnett  v.  State,  23:  761,  119  S.  W.  855, 
56  Tex,  Crim.  Rep.  281.  (Annotated) 

2.  As  to  title. 

(See  also   same   heading   in  Digest  L.R.A. 
1-70.) 

See  also  infra,  252. 

210.  A  lot  owner  on  the  shore  of  a  navi- 
gable lake,  who  was  entitled  to  an  island 
which  had  become  connected  with  the  shore 
by  a  sand  bar,  and  who  has  treated  it  as  an 
appurtenance  to  his  property,  is  not  es- 
topped from  asserting  title  thfreto,  al- 
though he  showed  partiality  as  between  two 
persons  engaged  in  a  contest  for  the  prop- 
erty, and  went  with  one  to  the  land  office 
as  a  witness  at  the  time  he  mad?  entry  of 
the  premises  under  the  homestead  laws, 
where  he  did  not  give  such  person  to  under- 
stand that  he  would  yield  his  own  claim  or 
intended  to  do  so,  and  did  not  deceive  or 
mislead  him  as  to  facts  upon  which  his  own- 
ership could  rest.  Webber  v.  Axtell,  6:194, 
102  N.  W.  915,  94  Minn.  375. 

211.  A  woman  is  not  prevented  from  as- 
serting her  right  to  real  estate  under  her 
husband's  deed,  which  he  secured  and  de- 
stroyed prior  to  his  death,  as  against  his 
heirs,  by  the  fact  that  she  listed  the  prop- 
erty, when  acting  as  his  administrator,  as 
part  of  his  estate,  in  the  absence  of  any- 
thing to  show  that  the  heirs  had  been  mis- 
led by  such  act.  Matheson  v.  Matheson, 
18:  1167,  117  N.  W.  755,  139  Iowa,  511. 

212.  Proof  by  a  conditional  vendor  of  an 
unsecured  claim  upon  an  open  account  in 
bankruptcy  proceedings  against  the  vendee, 
who  had  not  complied  with  the  contract, 
does  not  estop  him  from  asserting  title  to 
the  property  in  the  hands  of  a  purchaser  at 
the  bankruptcy  sale,  if  he  did  not  partici- 
pate in  any  of  the  proceedings  arising  from 
the  sale  of  such  property.  Myrick  v. 
Liquid  Carbonic  Co.  38:  554,  73  S.  E.  7,  137 
Ga.  154. 

3.  Acts  or  claims  in  judicial  proceed- 
ing. 

(See  also   same   heading   in  Digest  LJi.A. 
1-70.) 

Of  municipality,  see  supra,  19,  20. 


ESTOPPEL,  III.  j,  3. 


1069- 


By  suing  on  part  of  claim,  see  Action 
OR  Suit,  II.  c. 

Estoppel  on  appeal  by  requesting  or  ob- 
taining ruling  or  decision,  see  Appeal 
AND  Error,  VII.  g,  2. 

Of  foreign  corporation  to  complain  of 
court's  exercise  of  jurisdiction  over 
it,  see  Courts,  42. 

By  election  of  remedy,  see  Election  of 
Remedies,  II. 

See  also  supra,  41;  infra,  251. 

213.  A  theory  of  law  advanced  by  coun- 
sel for  the  defendant  on  the  argument  in 
an  action  wherein  a  demurrer  to  the  peti- 
tion is  sustained,  and  the  case  thereupon 
dismissed  without  prejudice,  at  the  request 
of  the  plaintiff,  is  not  conclusive  upon 
such  defendant  in  a  subsequent  action  in- 
volving the  same  matter  between  the  same 
parties.  First  Nat.  Bank  v.  Duncan,  28: 
327,  101  Pac.  992,  80  Kan.  196. 

214.  A  litigant  having  been  sued  in  the 
circuit  court  of  the  United  States  as  a  resi- 
dent of  Illinois,  and  having  obtained  the 
benefit  of  an  exception  to  the  effect  that  he 
has  his  domicil  in  Louisiana,  cannot  be 
heard,  when  sued  at  such  domicil,  to  plead 
to  the  jurisdiction  of  the  state  court  on 
the  ground  that  he  is  domiciled  in  Illinois. 
Caldwell  v.  Morris,  15:  423,  45  So.  927,  120 
La.  879.  (Annotated) 

215.  One  who  has  sought  to  have  the 
rights  as  between  defendant  and  himself 
adjudicated  in  an  action  cannot,  after  the 
decision,  urge  error  because  other  parties 
whose  rights  may  be  affected  by  the  adju- 
dication have  not  been  brought  in.  Seven 
Lakes  Reservoir  Co.  v.  New  Loveland  & 
G.  Irrig.  &  L.  Co.  17:  329,  93  Pac.  485,  40 
Colo.  382. 

216.  Upon  the  filing  in  a  state  court  of 
the  requisite  petition  and  bond  for  the  re- 
moval of  the  suit  to  a  Federal  court,  the 
state  court  is  devested  of  jurisdiction;  but 
a  party  who  procures  the  withdrawal  of 
the  petition  and  bond  by  the  party  who 
filed  it,  before  any  action  in  the  Federal 
court,  and  then  dismisses  his  action  in  the 
state  court  as  to  the  party  who  filed  the 
petition  for  removal,  and  by  agreement 
with  the  remaining  parties  prosecutes  the 
suit  in  the  state  court,  cannot  be  heard, 
after  judgment  against  him,  to  assert  that 
the  jurisdiction  of  the  state  court  had  not 
been  restored.  Anderson  v.  United  Realty 
Co.  51 :  477,  86  N.  E.  644,  79  Ohio  St.  23. 

217.  That  the  holder  of  one  of  the  new 
notes  representing  the  respective  interests 
of  the  purchasers  of  a  mortgage  does  not 
originate  a  suit  to  foreclose  the  mortgage 
to  secure  its  payment,  but  is  made  defend- 
ant therein,  does  not  prevent  the  applica- 
tion against  him  of  the  rule  that  he  can- 
not treat  the  original  note  as  existing  for 
the  purpose  of  upholding  the  mortgage  and 
repudiate  it  for  other  purposes,  where  he 
seeks  affirmative  relief  in  his  answer,  by 
way  of  foreclosure  of  the  mortgage,  to  se- 
cure the  sum  due  on  his  note.  ]\IcLeod  v. 
Digest   1-52  L.R.A.(N.S.) 


Despc^in,    19:  276,   90   Pac.   492,   49  Or.   536. 

218.  Where  the  payee  of  a  check  com- 
mences an  action  against  the  drawer  there- 
of and  causes  an  attachment  to  be  issued 
against  the  drawer,  such  payee  is  not  es- 
topped from  intervening  and  defending  in 
an  action  wherein  another  creditor  of  the 
drawer  is  seeking  to  subject  the  deposit 
of  the  drawer  in  the  bank  against  which 
such  check  is  drawn,  to  the  payment  of  such 
creditor's  claim.  Kaesemeyer  v.  Smith,  43: 
100,  123  Pac.  943,  22  Idaho,  1. 

239.  An  assertion  made  by  a  litigant  as 
a  part  of  his  defense  to  an  action  on  a 
promissory  note,  that  he  is  indebted  there- 
on to  a  third  person,  not  a  party  to  the 
action,  is  not  conclusive  upon  such  liti- 
gant, when  subsequently  sued  upon  the 
note  by  such  third  person.  First  Nat. 
Bank  v.  Duncan,  28:  327,  101  Pac.  992, 
80  Kan.  196.  (Annotated) 

220.  The  fact  that  the  defendant  in  an 
execution  upon  which  a  levy  has  been  had 
made  a  counter  affidavit  and  gave  a  forth- 
coming bond  in  both  of  which  the  fact  of 
the  levy  is  recited,  does  not  estop  him,  at 
the  trial,  from  raising  the  issue  as  to  the 
validity  of  the  levy.  Peeples  v.  T.  W.  Gar- 
rison &  Son,  51:  635,  81  S.  E.  116,  141  Ga. 
411.  (Annotated) 

221.  An  averment  of  consent  to  an  opera- 
tion, in  the  declaration  in  an  action  whicb 
is  disposed  of  without  any  determination  of 
the  rights  of  the  parties,  does  not  estop 
plaintiff,  in  a  subsequent  suit,  to  show  want 
of  consent.  Pratt  v.  Davis,  7:  609,  79  N.  E, 
562,  224  111.  300. 

222.  The  recitals  in  an  affidavit  made  by 
a  mortgagee  under  the  provisions  of  a  stat- 
ute, that  the  power  of  sale  has  been  duly 
executed,  are  not  conclusive  upon  liim,  but 
may  be  controverted  in  proceedings  con- 
cerning the  validity  of  the  foreclosure. 
Atkins  V.  Atkins,  11:  273,  80  N.  E.  806, 
195  Mass.   124. 

223.  A  property  owner  who  has  asserted 
the  validity  of  a  lease  of  a  railroad  to  com- 
pel the  lessee  to  furnish  him  siding  facili- 
ties cannot,  in  another  proceeding  to  hola 
the  lessor  liable  in  damages  for  refusal  to 
do  so,  deny  its  validity.  Moser  v.  Phila- 
delphia, H.  &  P.  R.  Co.  40:  519,  82  Atl.  362, 
233  Pa.  259. 

224.  The  allegation  of  force  and  violence 
in  a  complaint  seeking  damages  for  rape  on 
a  child  under  the  age  of  consent  docs  not 
prevent  reliance  on  the  statute  as  barring 
the  defense  of  consent.  Hough  v.  Iderhoff, 
51:  982,  139  Pac.  931,  69  Or.  568. 

225.  Denial  of  authorship  of  a  letter  al- 
leged to  be  libelous  does  not  prevent  the 
defense  that  complainant  is  not  designated 
in  the  letter,  and  therefore  that  it  is  not 
libelous  as  to  her.  Hyatt  v.  Lindner,  48: 
256,  63  So.  241,  133  La.  614. 

226.  One  who  denies  writing  a  letter  al- 
leged to  be  libelous  cannot,  upon  the  trial, 
justify  on  the  ground  of  privilege.  Hyatt 
V.  Lindner,  48:  256,  63  So.  241,  133  La.  614. 


1070 


ESTOPPEL,  III.  k. 


fc.  By  receiving  benefits. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Of  municipality,  see  supra,  21. 

To  appeal  from  decree,  see  Appeal  and 
Ebbob,  94-97. 

Effect  of  to  estop  corporation  from  setting 
up  defense  of  ultra  vires,  see  Cobpoba- 
TIONS,  95. 

To  impeach  validity  of  chattel  mortgage  by 
corporation,   see   Corpobations,   97. 

Acceptance  of  benefits  as  estopping  corpora- 
tion to  deny  authority  of  president,  see 

COBPOBATIONS,    136. 

See  also  supra,  116;  infra,  254;  Judgment, 
164. 

227.  A  party  cannot  voluntarily  act  upon 
a  contract  which  he  has  been  wrongfully 
constrained  to  sign,  and  voluntarily  take 
the  benefit  of  it,  and  then  avoid  it  for 
duress.  St.  Louis  &  S.  F.  R.  Co.  v.  Gor- 
man, 28:  637,  100  Pac.  647,  79  Kan.  643. 

228.  Receiving  benefits  under  a  contract 
for  support  in  consideration  of  the  con- 
veyance of  property,  after  the  vendee  has 
given  an  option  to  sell  the  property  to  a 
third  person  without  knowledge  of  the 
facts,  is  not  a  ratification  of  the  option. 
Gall  V.  Gall,  5:  603,  105  N.  W.  953,  126  Wis. 
390. 

229.  One  who  has  accepted  the  compensa- 
tion awarded  for  a  right  of  way  over  his 
property  is  estopped  to  question  the  validity 
of  the  proceedings  by  which  it  was  ascer- 
tained. Sterritt  v.  Young,  4:  169,  82  Pac. 
946,  14  Wyo.  146. 

230.  The  lessor  of  the  right  to  remove 
gravel  does  not,  by  taking  pay  for  that 
taken  nearer  to  neighboring  property  than 
the  agreed  line  so  as  to  interfere  with  its 
lateral  support,  estop  himself  from  enfor- 
cing the  contract  obligation  of  the  lessee 
not  to  interfere  with  such  support.  Orr  v. 
Dayton  &  M.  Traction  Co.  48:  474,  96  N.  E. 
462,  178  Ind.  40. 

231.  A  landowner  who,  pursuant  to  a 
verbal  contract,  co-operates  with  another 
landowner  in  the  construction  of  a  ditch  to 
drain  their  lands,  is,  after  each  has  ac- 
cepted benefits  of  the  labor  and  expense  of 
the  other  in  its  construction,  estopped  from 
damming  up  the  ditch  in  such  manner  as 
wholly  to  deprive  the  latter  of  any  benefit 
therefrom  while  he  retains  it  for  his  own 
use.  Munch  v.  Stelter,  25:  727,  124  N.  W. 
14,    109   Minn.   403.  (Annotated) 

232.  One  does  not  receive  a  benefit  from 
a  transportation  contract  invalid  because 
made  on  Sunday,  so  as  to  prevent  him  from 
setting  up  its  invalidity  to  avoid  a  limi- 
tation of  liability  clause,  if  the  carrier's 
injury  to  the  property  during  transporta- 
tions exceeds  the  difi"erence  between  what 
he  paid  for  the  service  and  what  he  would 
have  paid  for  such  service  without  limitation 
of  liability.  Lovell  v.  Boston  &  M.  R.  Co. 
34:  67,  78  Atl.  621,  75  K.  H.  568. 

233.  The  fact  that  the  cashier  of  a  bank 
induced  a  stranger  to  lend  money  to  one 
Digest  1-52  I..R.A.(N.S.) 


to  whom  the  bank  had  made  a  loan  in  ex- 
cess of  the  statutory  limit,  upon  a  guaranty 
by  the  bank  of  repayment  of  the  loan  in 
order  to  secure  payment  of  a  portion  of  its 
claim  and  relieve  him  from  liability  for 
making  the  excessive  loan,  and  that  the 
bank  received  a  large  portion  of  tlie  money 
so  secured,  does  not  estop  it  from  setting 
up  the  invalidity  of  the  guaranty.  First 
Xat.  Bank  v.  Monroe,  32:  550,  69  S".  E.  1123, 
135  Ga.  014. 

234.  Where  a  corporation  obtains  a  loan 
of  money  on  its  notes  or  bonds,  secured  by 
a  mortgage  which  appears  to  have  been 
executed  on  behalf  of  the  corporation  by 
its  president  and  secretary,  with  authority 
of  its  board  of  directors,  it  being  within  the 
powers  of  the  corporation  to  execute  such 
a  mortgage,  and  the  proceeds  of  the  loan 
being  used  for  corporate  purposes,  sucli  cor- 
poration is  estopped  from  asserting  the  de- 
fense that  such  mortgage  was  not  in  fact 
authorized  by  its  board  of  directors,  or 
that  the  person  signing  as  secretary  was 
not  the  secretary;  the  mortgagee  not  hav- 
ing notice  of  such  defects.  Clearwater 
County  State  Bank  v.  Bagley-Ogema  Teleph. 
Co.  36:  1 132,  133  N.  W.  91,  116  Minn.  4. 

235.  That  a  hotel  has  been  built  on  the 
faith  of  a  railroad  company's  guaranty  of 
interest  and  dividends  on  its  stock  and 
bonds,  and  that  the  company  has  received 
the  anticipated  benefit  therefrom,  do  not 
estop  it  from  setting  up  the  ultra  vires 
character  of  the  contract.  Western  Mary- 
land R.  Co.  V.  Blue  Ridge  Hotel  Co.  2:  887, 
62  Atl.  351,  102  Md.  307. 

236.  One  who  gives  a  new  note  in  renewal 
of  old  ones,  one  of  which  he  claims  to  be  a 
forgery,  will,  after  he  has  retained  posses- 
sion of  the  old  note  and  received  the  benefit 
of  the  renewal  for  several  months,  until  the 
bank  has  become  insolvent,  be  estopped  from 
setting  up  the  forgery  in  partial  defense  of 
a  suit  on  the  renewal  note.  First  State 
Bank  v.  Williams,  23:  1234,  121  N.  W.  702, 
143  Iowa,  177.  (Annotated) 

237.  A  principal  does  not,  by  accepting, 
without  knowledge  of  the  source,  money  on 
account  from  an  agent  who  secures  it  by 
executing  a  note  in  the  name  of  the  prin- 
cipal, without  authority,  render  himself  li- 
able on  the  note,  on  the  theory  that,  hav- 
ing accepted  the  benefit  of  the  loan,  he  can- 
not repudiate  liability  for  it.  Calhoun  v. 
McCrory  Piano  &  Realtv  Co.  52:  571,  168 
S.  W.  149,  129  Tenn.  651.  (Annotated) 

238.  Acceptance  by  a  firm  creditor  of  a 
dividend  from  the  insolv.'^nt  estate  of  a  part- 
ner who  purchased  the  interest  of  one  who 
was  a  member  of  the  firm  at  the  time  the 
debt  was  incurred  does  not  estop  the  creditor 
from  looking  to  the  latter  for  payment. 
Gross  V.  Breckinridge  Bank,  4:  800,  90  S. 
W.  5.  28  Ky.  L.  Rep.  646. 

2"!).  1  he  receipt  by  the  beneficiary  in  a 
deed  of  trust  to  secure  notes  of  a  portion  of 
the  proceeds  of  the  fraudulent  sale  of  the 
property  will  not  estop  him  from  contesting 
the  validity  of  the  sale  if  he  acted  without 
full  knowledge  of  the  facts,  where  no  preju- 
dice  has    resulted   to   an\one   from    his   act. 


ESTOPPEL,  III.  1,  m. 


1071 


AVasserman    v.    Metzger,   7:  1019,    54    S.    E. 
«;3:].  105  Va.  744. 

240.  A  child  receiving  from  the  executor 
■of  licr  fatner  money,  witli  knowledge  that 
it  is  the  proceeds  of  her  property  sold  by 
the  fatlier  in  his  lifetime,  is  thereafter  es- 
topped from  asserting  title  to  the  property 
as  against  the  purchaser  from  the  father; 
1)11 1  if  slie  receives  the  money  in  ignorance 
of  the  fact  that  it  is  so  derived,  she  will  not 
1)6  estopped  from  asserting  title,  although 
she  may  be  required  to  account  to  the  pur- 
■cliaser  for  the  amount  she  receives.  Gar- 
butt  V.  Mayo,  13:  58,  57  S.  E.  495,  128  Ga. 
269. 

241.  One  who  has  taken  advantage  of 
permission  extended  by  a  municipal  corpo- 
ration to  construct  a  wooden  building  with- 
in the  fire  limits  and  maintain  it  for  a  cer- 
tain time  cannot  question  the  authority 
of  the  city  to  enter  into  a  contract  grant- 
ing permission  to  erect  the  building  in 
consideration  that  the  owner  would  remove 
it  within  a  specified  time.  Clark  v.  Dead- 
wood,  18:  402,  117  N.  W.  131,  22  S.  D.  233. 

(Annotated) 
riegatee. 
See  supra,   134. 
Divorced  viroinaii. 
See  supra,  136. 

I.  By  character  or  relation  of  parties. 

/See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Of  grantor  to  set  up  title  by  adverse  pos- 
session, see  Advebse  Possession,  18, 
19. 

To  question  rightfulness  of  issue  of  corpo- 
rate stock,  see  Corporations,  248. 

242.  An  attorney  who  collects  the  money 
due  on  an  assigned  judgment,  and  pays  it 
over  to  a  stranger  to  the  record  on  demand, 
is  not  estopped,  as  against  the  assignee, 
from  showing  that  he  had  recognized  a 
paramount  title.  Moss  Mercantile  Co.  v. 
First  Nat.  Bank,  2:  657,  82  Pac.  8,  4/  Or. 
3G1.  (Annotated) 
Tenant. 

Of  married  woman,  see  supra,  66,  67. 

243.  The  general  rule  that  a  tenant  can- 
not dispute  his  landlord's  title  docs  not  pre- 
vent the  tenant  from  showing  that  the  land- 
lord parted  with  his  title  to  the  rented 
premises  during  the  term  of  the  tenancy. 
Raines  v.  Hindman,  38:  863,  71  S.  E.  738, 
136  Ga.  450.  (Annotated) 

244.  One  who  goes  into  possession  of  land 
as  the  tenant  of  another  cannot  set  up  title 
adverse  to  the  landlord  from  whom  he  thus 
obtained  possession,  until  after  he  has  sur- 
rendered the  premises  tc  the  landlord. 
Hodges  v.  Waters,  i:  1181,  52  S.  E,  161,  124 
Ga.  229.  (Annotated) 

245.  A  tenant  in  possession,  who  expressly 
agrees  to  pay  rent  to  a  third  person  for  a 
given  time,  will  be  bound  by  such  agreement 
for  the  time  specified  if  founded  upon  a  suf- 
ficient consideration;  but,  after  the  expira- 
tion of  such  time,  no  promise  to  pay  rent 
Digest  1-52  Ii.R.A.(N.S.) 


will  be  implied,  and  he  may  deny  liability 
for  rent  thereafter,  although  he  still  re- 
mains in  possession  of  the  premises  as  the 
tenant  of  the  person  who  placed  him  in  pos- 
session. Hodges  V.  Waters,  i:  n8i,  52  S.  E. 
161,  124  Ga.  229.  (Annotated) 

246.  The  title  of  the  lessor  cannot  be 
questioned  by  the  lessee  before  the  expira- 
tion of  the  lease,  while  he  is  in  possession 
under  it,  unless  based  upon  some  distinct 
and  independent  claim  to  the  land.  Beck  v. 
Minnesota  &  W.  Grain  Co.  7:  930,  107  N.  W. 
1032,  131  Iowa,  62. 

247.  One  to  whom  a  tenant  leases  the 
premises  is  as  fully  estopped  to  question 
the  landlord's  title  as  is  the  tenant  himself. 
Beck  V.  Minnesota  &  W.  Grain  Co.  7:  930, 
107  N.  W.  1032,  131  Iowa,  62.   (Annotated) 

248.  If  the  grantor  in  a  deed  containing 
a  covenant  of  general  warranty,  conveying 
fway  the  title  in  fee  simple,  remains  in 
possession  of  the  property  after  the  execxi- 
tion  of  the  instrument,  he  is  presumptively 
the  tenant  of  the  grantee,  and  cannot  set 
up  an  independent  title  in  himself  without 
showing  some  act  of  ouster  of  his  landlord, 
or  its  equivalent.  Blake  v.  O'Neal,  16: 
1 147,  61  S.  E.  410,  63  W.  Va.  483. 

249.  A  tenant  may,  after  termination  of 
the  lease,  defend  against  an  action  by  the 
landlord  to  recover  possession  and  establish  ' 
title,  by  showing  a  superior  title  in  him- 
self, without  surrendering  possession,  wliere 
the  success  of  the  landlord  would  destroy 
the  title  of  the  tenant.  Stevenson  v.  Rog- 
ers, 29:  85,  125  S.  W.  1,  103  Tex.  169. 

( Annotated ) 

250.  A  common  lessee  of  two  adjoining 
tracts  of  oil  lands  owned  by  different  par- 
ties, who  entered  under  one  lease  and  put 
down  a  well  on  land  supposed  to  belong  to 
the  lessor  under  whose  lease  he  entered, 
and,  by  a  sign  in  large  letters  placed  on 
the  walking  beam  and  plainly  visible  to  per- 
sons passing  on  the  railroad  and  other  pub- 
lic roads  in  the  vicinity  of  the  well,  gave 
notice  of  the  character  of  his  holding  and 
under  whose  lease  the  well  was  drilled  and 
was  being  operated,  and  connected  the  well 
with  a  tank  on  the  land  of  such  lessor,  into 
which  the  oil  produced  was  conveyed  and 
from  which  it  was  delivered  into  the  pipe 
line  of  a  common  carrier,  and  who,  for  more 
than  ten  years,  thus  operated  the  well  and 
paid  the  royalty  to  the  lessor  under  whose 
lease  he  entered,  is  not,  after  the  statute 
of  limitations  has  fully  run,  estopped  to 
deny  the  title  of  the  other  lessor,  although 
the  well  may  in  fact  have  been  located  on 
his  land,  where  such  other  lessor  had  no 
possession  of  the  particular  land  entered. 
Lockwood  V.  Carter  Oil  Co.  52:  765,  SO  S. 
E.  814,  73  W.  Va.   175.  (Annotated) 

m.  Wlio  affected. 

(See   also    same   heading   in  Digest  L.R.A. 
1-10.) 

Estoppel  by  deed,  see  supra,  II.  a. 
Infant    by    representation    as    to    age,    see 
supra,   173-178. 


1072 


ESTOPPEL,  III.  m. 


Of  infant  by  act  of  guardian,  see  Guardian 
AND  Ward,  28. 

Of  corporation  by  acta  of  agent,  see  Cor- 
porations, 56. 

Effect  of  estoppel  in  favor  of  or  against 
administrators  appointed  in  one  state 
on  administrator  in  other  state,  sec 
Executors  and  Administrators,  136. 

See  also  supra,  82. 

251.  Only  those  who  are  actors  in  procur- 
ing the  allowance  of  an  injunction  against 
the  commencement  of  an  actior.  can,  upon 
that  account,  be  equitably  estopped  from 
pleading  the  statute  of  limitations.  Hunter 
V,  Niagara  F.  Ins.  Co.  3:  1187,  76  N.  E.  563, 
73  Ohio  St.  110. 

252.  The  true  owner  of  land,  by  attesting 
a  deed  the  contents  of  which  he  knows,  made 
by  a  person  who  has  no  title,  will  be  estopped 
from  asserting  his  title  as  against  the 
grantee  and  his  privies;  but  this  estoppel 
will  not  bind  an  existing  creditor  of  the  per- 
son estopped.  Equitable  Loan  &  Secur.  Co. 
V.  Lewman,  3:  879,  52  S.  E.  599,  124  Ga.  190. 

(Annotated) 

253.  By  claiming  a  prescriptive  right  to 
flood  another's  land  by  virtue  of  acts  of 
strangers  in  turning  the  water  from  a 
stream,  a  person  makes  those  acts  his  own, 
and  is  bound  thereby  as  against  ^he  claim 
that  he  is  not  responsible  for  the  change, 
and  that  therefore,  as  against  hirn,  the  one 
on  whose  land  the  water  is  thr'>wri  has  no 
right  to  embank  against  it.  Wills  v.  Babb, 
6:  136,  78  N.  E.  42,  222  111.  95.     (Annotated) 

254.  One  claiming  under  the  lessor  of  oil 
and  gas  privileges  is  estopped  from  setting 
up  that  the  lease  constituted  a  mere  license 
revocable  at  pleasure,  where  the  lessor  is, 
and  for  more  than  three  years  has  been, 
using  gas  for  domestic  purposes  furnished 
under  the  terms  of  the  lease,  and  has  never 
served  any  notice  on  the  gas  company  that 
she  desired  a  forfeiture  of  the  lease.  Comp- 
ton  v.  People's  Gas  Co.  10:  787,  89  Pac. 
1039,  75  Kan.  572. 

255.  A  son  asserting  title  to  his  father's 
leasehold  estate  through  an  execution  sale 
under  a  judgment  recovered  by  the  son 
against  him,  with  knowledge  of  the  facts, 
is  affected  by  the  father's  estoppel  to  dis- 
pute the  fact  that  his  title  was  a  fee  in 
favor  of  one  to  whom  the  father  purported 
to  mortgajie  such  title.  Townsend  v.  Boyd, 
12:  1 148,  66  Atl,  1099,  217  Pa.  386. 

256.  The  fact  that  county  officers  had 
knowledge  that  county  funds  were  illegs^lly 
deposited  in  pursuance  of  a  course  of  busi- 
ness carried  on  for  several  years  without 
objection  will  not  estop  the  county  from 
pursuing  such  moneys  as  trust  funds. 
Crawford  County  v.  Strawn,  15:  1 100,  157 
Fed.  49,  84  C.  C.  A.  553. 

257.  An  attaching  creditor  of  an  admin- 
istrator is  bound  by  an  estoppel  upon  him 
to  contest  the  validity,  as  against  his  own 
interest,  of  a  deed  jjiven  by  him  as  adminis- 
trator which  is  void  on  its  face,  but  which 
purports  to  convey  real  estate  in  which  he 
has  an  interest  as  heir.  Bliss  v.  Tidrick, 
32:  854,  127  N.  W.  852,  25  S.  D.  633. 
Digest  1-52  Ii.R.A.(N.S.) 


258.  An  act  of  stockholders  of  a  corpora- 
tion which  attempts  to  ratify  a  fraud  or 
misapplication  of  the  funds  of  the  corpora- 
tion by  the  directors  is  binding  by  way  of 
estoppel  only  on  such  stockholders  as  vote- 
in  favor  of  the  approval.  Continental  Se- 
curities Co.  V.  Belmont,  51:  112,  99  N.  E.. 
138,  206  N.  Y.  7. 

259.  A  man  whose  participation  in  an 
act  of  mortgage  by  his  wife  of  her  sep- 
arate property  is  shown  only  by  a  recital" 
that  came  the  said  woman,  wife  of  the 
said  husband,  "herein  joined,  aided,  and 
authorized  by  her  husband,"  will  not  be- 
held to  have  consented  to  the  inclusion  in 
the  mortgage  of  his  separate  property  so- 
that  it  will  be  bound  thereby  as  against 
the  claim  of  his  subsequent  mortgagee,  al- 
though he  may  be  personally  estopped  to- 
deny  that  it  is  included.  W.  F.  Taylor 
Co. 'v.  Sample,  28:  289,  48  So.  439,  122  La, 
1016.  (Annotated) 

260.  A  wife  is  not  estopped  to  claim  her 
rights  in  the  homestead  by  the  fact  that 
at  the  time  it  was  sold  by  her  husband 
she  was  living  apart  from  him  in  another 
state  and  he  represented  that  he  was  un- 
married. Mason  v.  Dierks  Lumber  &  ]!oali 
Co.  26    574,  125  S.  W.  656,  94  Ark.  107. 

( Annotated  y 
Principal  by  acts  of  agent. 
Of  carrier  to  deny  validity  of  bill  of  lading,. 

see  Carriers,  753. 
Insurance  company,  see  Insurance,  V.  b» 

4;  V.  b,  5,  c. 
Heirs  and  representatives. 
By   deed,   see  supra,   33. 
See  also  supra,  80. 

261.  Fraudulent  representations  by  the 
owner  of  a  homestead  to  the  effect  that  he 
is  unmarried,  by  which  he  effects  a  sale 
of  the  property,  estop  his  heirs  from  set- 
ting up  the  invalidity  of  the  conveyance  on 
the  ground  that  his  wife  did  not  join  in 
it.  Mason  v.  Dierks  Lumber  &  Coal  Co. 
26:  574,  125  S.  W.  656,  94  Ark.  107. 

262.  Where  all  of  the  interested  parties 
to  an  adoption  proceeding  appeared  be- 
fore the  county  court  of  a  county  other 
than  that  of  the  person  desiring  to  adopt 
a  child,  and  agreed  on  the  one  side  to  re- 
linquish the  child  and  consented  to  its- 
adoption  on  the  condition  that  it  should 
have  full  rights  of  heirship  as  if  born  in 
wedlock,  and  on  the  other  to  adopt  and 
make  it  an  heir,  and  the  child  is  surren- 
dered to  the  custody  of  and  remains  in  the 
family  of  the  adopting  parent  until  the 
death  of  that  parent,  which  occurs  while 
the  child  is  of  tender  years,  the  collateral 
heirs  of  the  deceased  adopting  parent  are 
estopped  to  deny  the  validity  of  the  adop- 
tion proceedings  and  that  the  child  is  en- 
titled to  inherit,  notwithstanding  the 
statute  requires  a  person  desiring  to  adopt 
a  child  to  file  the  petition  of  adoption  m 
the  county  of  his  residence.  Milligan  v. 
McLaughlin,  46:  11 34,  142  N.  W.  675,  94 
Neb.  171. 

Remaindermen. 

263.  Life  tenants  cannot,  by  their  own 
acts  or  admissions,  defeat  or  prejudice  the 


ESTOPPEL,  III.  n— EVIDENCE. 


1073 


rights   of  the   remainderman.     Anderson   v.    II. — continued. 


Messinger,  7;  1094,  146  Fed.  929,  77  C.  C.  A. 
179. 

n.  Who  may  set  up. 

264.  The  executor  and  the  legatee  of  tes- 
tator's personal  estate  are  in  privity  to  such 
an  extent  that  the  former  may  assert  an 
estoppel  which  prevents  a  stranger  from 
making  claim  to  the  state  against  the 
legatee.  Pond  v.  Pond,  8:  212,  65  Atl.  97, 
79  Vt.  352.  (Annotated) 

265.  Persons  with  knowledge  that  a  man 
purchased  real  estate  with  his  wife's  funds, 
and  took  the  title  thereto  in  his  own  name, 
cannot  raise  an  estoppel  against  her  right 
to  claim  the  property  as  against  their 
claims  arising  out  of  credit  extended  to 
him.  Blake  v.  Meadows,  30:  i,  123  S.  W. 
868,  225  Mo.  1. 


ESTOPPEL  IN  PAIS. 

See  Estoppel,  III. 


EVAPORATION. 


Duty    to    prevent    loss    of    water    by,    see 
Watebs,  243. 


EVICTION. 


As  breach  of  covenant,  see  Covenants  and 
Conditions,  38,  44,  69-71,  100,  125. 

Dan^ages  for,  ^ee  Damages,  135-137,  139, 
140,  142,  151-153. 

Of  tenant,  see  Evidence,  2323. 

Attornment  to  avoid,  see  Garnishment,  11. 

Of  tenant,  see  Injunction,  88,  89;  Land- 
LOBD  AND  Tenant,  62-75,  209. 


EVIDENCE. 


J.  Judicial  notice,   1—63. 

a.  Laws  and   ordinances,    1—4. 

b.  Proclamations. 

c.  Official  and  judicial  charac- 

ter  and   acts,    5—13. 

d.  Political,       historical,       and 

geographical   matters,    14— 
22. 

e.  Other  matters,  23—61. 

f.  By  jury,   62,   63. 

II.  Presumptions  and  burden  of 
proof,   64—698. 

a.  In  general;  latvs;  ordi- 
nances,  64—87. 

ft.  Establishing  allegations  and 
claims,   88—95. 

c.  defenses,    96—109. 

d.  Exceptions     or     exemptions, 

110-114. 
Digest  1-52  L.R.A.(N.S.) 


III. 


IV. 


68 


e.  Concerning     persons,     115— 

312. 

1.  Status,       condition,       or 

relation,   115—136. 

2.  Marriage;    identity,    di- 

vorce,  137—151. 

3.  Death;         survivorship; 

suicide,   152—165. 

4:.  Assent;  authority;  li- 
cense,  166—188. 

6.  Knowledge;  notice;  san- 
ity; capacity;  belief; 
intent,   189—234. 

6.  Malice;  criminal  intent; 

probable  cause,  235— 
260. 

7.  Fraud     or     good     faith; 

reliance  on  representa- 
tions; undue  influence; 
duress,   261—292. 

8.  Truth ;      innocence; 

guilty,  293—304. 

9.  From,  silence;  withhold- 

ing or  destroying  evi- 
dence,  305—312. 

f.  Corporations;       partnership, 

313—315. 

g.  Continuance;     cause,     316-^ 

329. 
h.  As      to      skill;      negligence; 
care,  330—493. 

1.  Of    person    causing    in- 

jury, 330—472. 

a.  In      general,      330— 

333. 

b.  Carriers,  334—390. 

(1)  Of  passengers, 

334—378. 

(2)  Of    freight, 

379-390. 

c.  Railroads ;     street 

railways ;      vessels, 
391-407. 

d.  Electric    companies, 

408-411. 

e.  Master  and  servant, 

412-440. 
t.  Miscellaneous,    441— 
472. 

2.  Contributory  negligence, 

473-493. 
i.  As  to  official  acts,   494—510. 
j.  From       circumstances       and 
course    of    business,    511— 
513. 
fc.  As   to   rights,    contracts,    in- 
stalments,    and     prop- 
erty, 514—634. 

1.  In  general,  514—607. 

2.  Ownership      or     posses- 

sion,   608—634. 
I.  Payment;  credit,  635—639. 
m.  Miscellaneous,  640—0  )8. 
Best     and     secondary     evidence, 

699-733. 
Documentary  evidence,  734—878. 
a.  In       general;       preliminary 
matters;    genuineness    and 
validity,   734—746. 
t.  Statutes;    ordinances,    747— 
749. 


1074 


EVIDENCE. 


lY. — con  tinned. 

c.  Certificate ;  award,  750. 

d.  Official  irecords,  reports,  and 

returns,  751—761. 

e.  Judgments  and  judicial  rec- 

ords, 762—774. 

f.  Pleadings     and     papers     in 
•■'■.»»*'•  suit. 

g.  Evidence  previously  taken  or 
-'  used;    affidavits,    775—784:. 

h.  Tax  book  or  list. 

i.  Deeds;  wills;  leases;  mort- 
gages, 785—791. 

j.  Accounts  and  account  books, 
792-802. 

Ic.  Letters;  telegrams;  etc., 
803-817. 

I.  Records  and  papers  of  cor- 
porations or  carriers,  818— 
827. 

tm.  Notes  and  checks;  indorse- 
ments, 828—834. 

n.  Contracts. 

0.  Scientific  and  medical  books. 
p.  For  purposes  of  comparison, 

835—840. 
q.  Memoranda,  841—846. 
r.  Miscellaneous,    847—876. 
8.  Paper  produced  on  notice, 
t.  Putting     whole     writing     in 
•y^--  evidence,    877,    878. 

F.  Demonstrative  evidence;  articles 
and  things;  view  of  jury,  879— 
898. 
YI.  Parol  and  extrinsic  evidence  con- 
cerning     writings,       899— 
1050. 

a.  In  general,   899—933. 

b.  Custom  or  usage,  934. 

e.  Prior  and  collateral  parol 
agreements,  935—949. 

d.  Subsequent     changes,     950, 

951. 

e.  Meaning ;  intention;  explana- 
■'"'■'  tion,   952-984. 

f.  As     to      comm,ercial     paper, 
\n^''-  985-1000. 

g.  Consideration ;     or     value 
~'  of    subject-mattpr,     1001— 

1015. 

h.  Fraud;  mistake;  omissions, 
1016-1021. 

t.  Condition;  trust;  mortgage, 
1022—1033. 

j.  To  identify  subject  or  per- 
sons,  1034—1036. 

fc.  Circumstances,  1037. 

1.  Concerning    records,    1038— 

1041. 
m.  Character  of  party,    1042— 
1050. 
VII»  Opinions  and  conclusions,  1051— 

1206. 
**'*'''    a.  In  general,  1051—1060. 

b.  Hypothetical     questions, 
1061-1071. 
J  e.  Cause     and     effect,      1072— 

'*'  1075. 

d.  Physical    conditions;    medi- 
cal     testimony;      intoxica- 
tion, 1076-1095. 
Digest  1-52  I<.B.A.(N.S.) 


VII. — continued. 

e.  sanity;      capacity;      ability; 

character,   1096—1117. 

f.  Values;      damages,       1118— 

1132. 

g.  Contingent      results;      what 

might    have    been,     1133— 
•    1134. 
K.  Legal  questions;  meaning  of 

terms;  foreign  laws,  1135, 

1136. 
i.  Estimates  of  quantity,  speed; 

time,   1137-1144. 
j.  Danger;     skill;     negligence, 

1145-1157. 
Ic.  Intent;    mental    conditions, 

1158. 
I.  Appearance;    identity;    qual- 
ity;     authenticity,      1159— 

1169. 
m.  Handwriting ;  finger  prints, 

1170-1179. 
n.  Miscellaneaus,    1180—1206. 
VIII.  Confessions;     testimony     or    evi- 
dence     wrongfully      obtained, 
1207-1229. 
IX.  Admissions,    1230—1265. 
X.  Hearsay ;  declarations;  res  gestce, 

1266-1514. 

a.  In  general;  pedigree;  repu- 

tation, 1266—1278. 

b.  Confidential  communica- 

tions, 1279—1341. 

c.  Party's    ot^•n    acts    and    dec- 

larations, 1342—1359. 

d.  Acts     and     declarations     of 

third  persons  generally, 
1360-1407. 

e.  Acts     and     declarations     of 

agent,  representative,  or 
tenant,   1408—1434. 

f.  Acts      or      declarations      of 

former  party  in  interest; 
testator  or  former  owner, 
1435-1456. 

g.  Acts  or  declarations  of  part- 

ner, associate,  co-conspira- 
tor or  codefendant,  1457— 
1471. 

H.  Complaints  of  injuries  and 
suffering,    1472—1476. 

i.  Threats,    1477-1483. 

j.  Telephone  conversations, 

1484-1486. 

Ic.  Conversation  through  in- 
terpreter. 

I.  Dying  declarations,  or  those 
made  in  travail,  1487— 
1511. 

♦n.  Fotnner    testimony,     1512— 
1514. 
XI.  Relevancy        and        materiality, 
1515-2045. 

a.  In  general,  1515—1517. 

ft.  Custom  or  habit,  1518— 
1544. 

c.  Character,    reputation;    age, 

1545-1581. 

d.  Knowledge;    notice;    belief; 

mental  capacity,  1582— 
1606. 


EVIDENCE. 


1075 


XI. — continued. 

e.  Intent;    motive;    fraud,    un- 

due influence;  duress; 
malice;  good  faith;  inter- 
est,   1607-1083. 

f.  Prices;   values,    1684—1702. 

g.  Damages,  1703—1755. 

h.  Care;       skill;       negligence, 
,.i-     ....  1756-1800. 

i.  Suggestive    facts;    facts    sup- 
-.4  1        ■  porting   inferences,    1801— 

1839. 
j.  Circumstances,   1840—1844:. 
Tc.  Similar  dots  or  facts,  1845— 

1915. 
I.  Explanation     and     rebuttal, 

1916-1928. 
m.  Payment;         consideration; 

credit,  1929-1935. 
n.  Proof     of     negative,     1936, 

1937. 
i         o.  Contracts;    breach;    waiver, 

1938-1951. 
p.  Matters  pending  suit. 
q.  Pecuniary  condition;  family 

circumstances,  1952—1958. 
r.  Persons;  personal  relations, 

1959-1965. 
S.  Connecting      with      subject; 

matters    about    other    per- 
sons,   1966. 
t.  Criminal   matters   generally, 

1967-1990. 
u.  Title    or   possession,    1991— 

1999. 
V.  Identification,  2000. 
to.  Justification;         mitigation ; 

aggravation,  2001—2015. 
X.  Authority,  2016—2019. 
y.  Experiments,  2020— 2021a. 
z.  Miscellaneous,  2022—2045. 
XII.  Weight,    effect,     and    sufficiency, 

2046—2423. 
a.  In   general,    2046—2057. 
h.  Cause     and     effect,     2058— 

2080. 
e.  Fraud  or  good  faith;  malice; 

undue      influence,      2081— 

2108. 

d.  Negligence ;        skill;        care, 

2109-2179. 

e.  As  to  property  rights,  2180— 

2197. 

/.  Matters  as  to  persons;  rela- 
tion  of  parties,  2198— 
2253. 

g.  To  overcome  writing,  plead- 
ing, or  judicial  proceeding, 
2254-2258. 

h.  Documents  generally;  offi- 
cial acts  or  records;  de- 
monstrative evidence, 
2259—2270. 

i.  Contracts,  2271-2288. 

i.  Wills,   2289-2295. 

1e.  Miscellaneous  civil  cases, 
2296-2347. 

I.  Criminal  cases,  2348—2423. 
XIII.  Admissibility  under  pleadings; 
variance,  2424—2512. 

a.  Under  particular  pleadings, 

2424-2466. 

b.  Variance,  2467—2512. 
Dleest  1-52  L.R.A.(N.S.) 


Interpretation  of  abstracts  of  title  in  evi- 
dence,  see  Abstracts,  9. 

As  part  of  record  on  appeal,  see  Appeal 
AND  Ebboe,  4. 

On  appeal,  see  Appeal  and  Error,  VII.  c. 

Right  on  appeal  to  open  up  case  and  take 
additional  evidence,  see  Appeal  and 
Error,  429. 

Review  of  discretionary  rulings,  see  Appeal 
AND  Error,  VII.  i,  4. 

First  raising  objection  as  to,  on  appeal, 
see  Appeal  and  Error,  VII.  j.  5. 

Raising  on  appeal  new  objection  to  admis- 
sion of,  see  Appeal  and  Error,  718. 

Waiver  of  objection  as  to,  see  Appeal 
and  Error,  VII.  k,  3. 

Prejudicial  error  as  to,  see  Appeal  and 
Error,  VII.  m,  3. 

Error  in  instruction  as  to,  see  Appeal  and 
Error,  VII.  m,  4,  a,  5. 

Rule  as  to  reducing  testimony  to  narrative 
form,  see  Appeal  and  Error,  221. 

Necessity  of  making  evidence  part  of  re- 
cord by  bill  of  exceptions,  see  Appeal 
ANT)  Error,  223,  241,  247. 

Sufficiency  of  incorporation  of,  in  bill  of 
exceptions,  see  Appeal  and  Error,  234. 

Necessity  for  exception,  see  Appeial  and 
Error,  346-349. 

Necessity  of  producing  at  hearing  upon 
motion  for  new  trial  for  exclusion  of 
evidence  or  newly  discovered  evidence, 
see  Appeal  and  Error,  380. 

Review  of  action  of  court  in  striking  out, 
see  Appeal  and  Error,   526. 

Right  of  appellate  court  to  reject  as  un- 
worthy of  belief,  see  Appeal  and  Er- 
ror, 910. 

Conduct  of  counsel  in  persistently  offering 
incompetent  evidence,  see  Appeal  and 
Error,  1450. 

Right  to  free  transcripts  of,  see  Appeai^ 
and  Error,  1640,  1641. 

Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  II.  b,   7,  d. 

Statute  changing  rules  of,  as  ex  post  facto 
law,  see  Constitutional  Law,  33. 

Constitutionality  of  statute  as  to  rules  of, 
see  Constitutional  Law,  140-142, 
277. 

Grant  of  continuance  to  secure  testimony, 
see  Continuance  and  Adjournment, 
5-7. 

Validity  of  contract  to  give  or  secure,  see 
Contracts,    477,    479,    490,    491. 

Inherent  power  of  court  to  issue  commission 
to   take   depositions,    see   Courts,    8. 

Compelling  accused  to  furnish,  see  Crim- 
inal Law,    107-121,   131. 

Motion  for  order  to  enable  accused  to 
secure,  see  Criminal  Law,  159,  160. 

As  to  discovery,  see  Discovery  and  In- 
spection. 

Validity  of  indictment  found  by  grand  jury 
without  testimony  before  them,  see  In- 
dictment, etc.,  2. 

On  proceedings  to  appraise  insurance  loss, 
see  Insurance,  059. 

Conformity  of  judgment  to  proof,  see  Judg- 
ment, I.  e,  3. 


1076 


EVIDENCE,  I.  a— c. 


New  trial   because   of   erroneous   admission 

or  exclusion  of  evidence,  see  New  Trial, 

16-19. 
New  trial  for  newly  discovered  evidence,  see 

New  Tbiax,  IV. 
On  motion  for  new  trial,  see  New  Tbial, 

V.  c;  V.  d. 
Amendment  to  conform  pleading  to  proof, 

see  Pleading,   111. 
Right    of    officers    to    take    possession    of 

articles   for   evidentiary    purposes,    see 

Seabch  and  Seizure,  5-9. 
Taking,  in  camera  and  sealing,  see  Secbets. 
Sufficiency    of    title    of    statute    providing 

special  rules  of,  see  Statute^s,  103. 
Reception  of,  on  trial,  see  Trial,  I.  c. 
Striking  out,  see  Trial,  48-55. 
Objections  to,  see  Trial,   76-79,  82,  83. 
Waiver  of  objection  to,  see  Trial,  77. 
Limiting  evidence,   see   Trial,   954-957. 
Demurrer  to,  see  Trial,  II.  d,  4. 
Instructions  upon,  see  Trial,  III.  d. 
Proof  of  service  of  process,  see  Writ  and 

Process,  III. 
On  probate  or  contest  of  will,  see  Wills, 

94-99. 

/.  Judicial  notice. 

a.  Laws  and  ordinances. 

(See  also   same   heading   in  Digest  L.R.A 
1-10.) 

Judicial  notice  on  appeal,  of  village  ordi- 
nance, see  Appbial  and  Error,  190. 

1.  The  court  will  take  judicial  notice 
of  the  fact  that  a  statute  prohibiting  the 
depositing  of  mill  refuse  in  one  of  the 
largest  rivers  of  the  state,  or  its  tributary, 
to  which  fish  are  in  the  habit  of  resorting 
to  spawn,  was  to  prevent  injury  to  or  de- 
struction of  the  fish.  State  v.  Haskell,  34: 
286,  79  Atl.  852,  84  Vt.  429. 

City  ordinance. 

2.  Judicial  notice  will  not  be  taken  of 
municipal  ordinances.    St.  Louis  v.  Liessing, 
i:  918,  89  S.  W.  611,  190  Mo.  464. 
Foreign^  la\es  or  those  of  sister  states. 
Necessity  of  pleading  and  proving  foreign 

law,  see  Pleading.  59-63. 

3.  Courts  will  not  take  judicial  notice 
of  the  laws  of  a  sister  state,  but,  in  the 
absence  of  pleading  and  proof  to  the  con- 
trary, will  assume  that  they  are  the  same 
as  the  local  laws.  Maloney  v.  Winston 
Brothers  Co.  47:  634,  111  Pac.  1080,  18 
Idaho,  740. 

4.  The  courts  of  the  District  of  Colum- 
bia will,  in  an  action  to  recover  damages  for 
a  negligent  act  committed  in  that  jurisdic- 
tion causing  death  in  another  state,  which 
action  is  based  upon  the  statutes  in  such 
case  made  and  provided,  take  judicial  notice 
of  the  statutes  of  such  state.  Moore  t. 
Pywell,  9:  1078,  29  App.  D.  C.  312. 

h.  Proclamations. 

(See  sa/me  heading  in  Digest  L.R.A.  1-70. J 
Dieest  1-52  L.R.A.(N.S.) 


c.  Official   and  judicial   character  and- 
acts. 

(See  also   same  heading   in  Digest   L.R.A. 
1-70.) 

Judicial    records    and    decisions;    ap- 
peal. 

Admissibility  of  admissions,  see  supra,  1247, 

1248. 
Judicial  notice  of  rules  of  district  court  by 

supreme  court,  see  Appeal  and  Error, 

238. 
Judicial  notice  of  injunction  against  sale  of 

liquors,  see  Contkmpt,  72. 

5.  A  judge  at  chambers  will  take  judi- 
cial notice  of  his  former  orders  made  when 
he  sat  as  a  court.  State  v.  Porter,  13:  462, 
91  Pac.  1073,  76  Kan.  411. 

6.  A  court  cannot,  in  a  second  proceed- 
ing before  it  for  divorce,  base  its  denial  of 
relief  upon  facts  proved  at  the  first  hear- 
ing, if  the  record  of  such  liearing  is  not 
ofiered  in  evidence  in  the  second  cause. 
Matthews  v.  Matthews,  29:  905,  77  Atl.  249, 
112   Md.    582.  (Annotated) 

7.  Judicial  notice  will  not  be  taken  of 
a  judgment  in  another  suit  as  res  judicata, 
whether  in  the  same  or  another  court;  the 
record  must  be  pleaded  or  given  in  evidence. 
Pickens  v.  Coal  River  Boom  &  T.  Co.  24: 
354,  65  S.  E.  865,  66  W.  Va.  10. 

8.  An  increased  penalty  authorized  by 
statute  for  a  second  conviction  for  unlaw- 
fully selling  intoxicating  liquor  cannot  be 
based  on  a  court's  judicial  knowledge  of  the 
first  conviction,  but  such  conviction  must 
be  alleged  and  proven.  State  v.  Davis,  32: 
501,  69  S.  E.  639,  68  W.  Va.  142. 

9.  In  a  proceeding  for  contempt  for  vio- 
lation of  an  injunction  against  the  sale  of 
intoxicating  liquors,  the  court  may  take 
judicial  notice  of  the  decree  granting  the 
injunction,  although  entered  at  a  term  of 
court  presided  over  by  a  judge  other  than 
the  one  before  whom  the  contempt  proceed- 
ings are  instituted,  and  the  latter  judge 
has  no  personal  knowledge  of  the  decree. 
Haaren  v.  Mould,  24:  404,  122  N.  W.  921, 
144  Iowa,  296.  (Annotated) 

10.  Courts  will  not  take  judicial  notice 
of  the  decisions  of  courts  of  another  state. 
Southern  Exp.  Co.  v.  Owens,  8:  369,  41  So. 
752,  146  Ala.  412. 

11.  To  warrant  a  judgment  in  a  pro- 
ceeding commenced  by  attachment,  the  at- 
tachment and  return  need  not  be  offered  in 
evidence,  since  the  court  may  take  judi- 
cial notice  of  them.  Slater  v.  Roche,  28: 
702,  126  N.  W.  925.  148  Iowa.  413. 

12.  A  court  will  take  judicial  notice,  in 
a  prosecution  for  illegal  sale  of  intoxicating 
liquors,  of  the  fact  that  an  appeal  has  been 
taken  from  its  former  judgment  convicting 
accused  of  the  same  offense.  Dupree  v. 
State,  23:  596,  120  S.  W.  871,  56  Tex.  Crim. 
Rep.  562. 

13.  An  appellate  court  will  not  take 
judicial  notice  of  the  record  of  an  appeal 
pending  before  it,  in  another  suit  between 
the  parties  to  the  action,  in  which  it  is  re- 


EVIDENCE,  I.  d,  e. 


1077 


quested  to  do  so.    Murphy  v.  Citizens'  Bank, 
n:  6i6,  100  S.  W.  894,  82  Ark.  131. 

( Annotated ) 

d.  Political,   historical,    and  geograph- 
ical matters. 

^See  also   same   heading   in  Digest  L.R.A. 
1-10.) 

JSlections. 

14.  The  court  takes  judicial  notice  of 
the  dates  of  general  elections  provided  for 
by  general  statutes  of  the  state.  Diener  v. 
Star-Chronicle  Pub.  Co.  33:  216,  132  S.  W. 
1143,  230  Mo.  613. 

Geography. 

15.  The  court  will  take  judicial  notice 
of  the  territory  and  character  of  population 
and  industries  along  the  route  of  a  railroad 
between  two  incorporated  towns.  Funder- 
burg  V.  Augusta  &  A.  R.  Co.  21:  868,  61  S. 
E.  1075,  81  S.  C.  141. 

16.  Proof  that  a  homicide  occurred  in  a 
certain  town  is  sufficient  to  show  that  the 
venue  was  in  the  county  in  which  that  town 
was  situated,  although  there  is  no  evidence 
as  to  what  that  county  is,  since  the  court 
takes  judicial  notice  of  that  fact.  Howard 
V.  State,  34:  990,  55  So.  255,  172  Ala.  402. 
Distances. 

17.  Judicial  notice  may  be  taken  of  the 
distance  between  two  municipalities  within 
the  state.  People  v.  Van  Gaasbeck,  22:  650, 
82  N.  E.  718,  189  N.  Y.  408. 

Rivers. 

18.  The  court  takes  judicial  notice  that 
the  Tennessee  river  is  navigable.  Terrell  v. 
Paducah,  5:  289,  92  S.  W.  310,  28  Ky.  331. 

19.  The  court  takes  judicial  notice  that 
the  Mobile  river  within  the  boundary  limits 
of  the  city  of  Mobile  is  a  tidal  stream.  Mo- 
bile Docks  Co.  V.  Mobile,  3:  822,  40  So.  205, 
146  Ala.  198. 

Streets  and  pnlilic  places. 
Judicial  notice  of  customs  as  to,  see  infra, 
55,  56. 

20.  An  appellate  court  cannot  take  ju- 
dicial notice  of  the  location  of  the  differ- 
ent streets  and  avenues  in  a  city  or  town. 
Anderson  v.  Ocala,  52:  287,  64  So.  775,  — 
Fla.  — . 

21.  Courts  cannot  take  judicial  notice  of 
the'  location,  use,  and  control  of  streets. 
Woodson  V.  Metropolitan  Street  R.  Co. 
30:  931,  123  S.  W.  820,  224  Mo.  685. 

22.  The  court  may  take  judicial  notice 
that  13  per  cent  grades  are  common  in  the 
cities  and  towns  of  the  state,  and  that  they 
have  not  been  prohibited  by  law.  Dougan 
V.  Seattle,  51:  214,  136  Pac.  1165,  76  Wash. 
621. 

e.  Other  matters. 

(See  also   same   heading   in  Digest  L.R.A. 
1-10.) 

Presumption  on  appeal  as  to  judicial  notice, 

see  Appeal  and  Error,  437. 
Dieest  1-52  ]:i.R.A.(N.S.) 


Judicial  notice  that  January  is  in  the  win- 
ter season,  see  Pleiading,  340. 
See  also  infra,  1189. 

23.  The  court  will  take  judicial  notice 
of  the  laws  of  nature.  Morton  v.  Oregon 
Short  Line  R.  Co.  7:  344,  87  Pac.  151,  48  Or. 
444. 

24.  The  court  may  take  judicial  notice 
of  the  usual  method  of  operating  crema- 
tories. Abbey  Land  &  Improv.  Co.  v.  San 
Mateo,  52:  408,  139  Pac.  1068,  167  Cal.  434. 

25.  The  court  takes  judicial  notice  that 
to  analyze  a  beverage  requires  not  only 
learning  and  ='■''  m  chemistry,  but  instru- 
ments and  appliances  not  in  co'nmon  use. 
State  V.  Powell,  6:  477,  53  S.  E.  515,  141  N. 
C.  780. 

26.  The  court  takes  judicial  notice  of 
the  fact  that  publications  of  advertisements 
were  on  Sunday,  in  an  action  on  quantum 
meruit  to  recover  the  value  thereof,  where 
the  dates  of  publication  appear  and  those 
dates  fall  on  Sunday.  Sentinel  Co.  v.  A.  D. 
Meiselbach  Motor  Wagon  Co.  32:  436,  128 
N.  W.  861,  144  Wis.  224. 

27.  In  an  action  to  recover  damages  for 
permitting  snow  to  slide  from  a  roof  onto 
neighboring  property,  it  is  not  necessary  to 
prove  that  means  exist  to  prevent  such 
slides,  since  the  court  takes  judicial  notice 
of  the  fact.  Bishop  v.  Readsboro  Chair 
Mfg.  Co.  36:  1 171,  81  Atl.  454,  85  Vt.  141. 

28.  A  court  takes  judicial  notice  that 
explosions  occur  in  the  best  equipped,  best 
regulated,  and  perfectly  ventilated  coal 
mines.  Dickinson  v.  Stuart  Colliery  Co. 
43:  335,  76  S.  E.  654,  71  W.  Va.  325. 
Reasons  for  limiting  Tvomen's  labor. 

29.  Courts  will  take  judicial  notice  of 
conditions  which  render  the  limitations  of 
a  woman's  working  hours  justifiable,  such 
as  her  physical  organization,  her  maternal 
lunctions,  the  rearing  and  education  of  chil- 
dren, and  the  maintenance  of  the  home. 
W.  C.  Ritchie  &  Co.  v.  Wayman,  27:  994, 
91  N.  E.  695,  244  111.  509. 

30.  The  court  does  not  know  judicially 
that  there  is  no  reasonable  connection  be- 
tween the  health,  welfare,  and  safety  of 
the  public  and  the  limitation  of  the  hours 
of  labor  of  women  in  hotels,  which  would 
render  such  limitation  an  improper  subject 
for  the  exercise  of  the  police  power.  Peo- 
ple V.  Elerding,  40:  893,  98  N.  E.  982,  254 
111.  579. 

Electricity. 

Judicial   notice   as   to   business    of   electric 

light  company,  see  infra,  55,  56. 
Telephones. 
Judicial  notice  of  customs  as  to,  see  infra, 

56. 

31.  The  courts  take  judicial  notice  of 
the  history  of  the  inauguration  within  the 
state  of  the  several  local  independent  tele- 
phone companies  for  long  distance  service, 
in  opposition  to  the  Bell  system.  Home 
Teleph.  Co.  v.  Sarcoxie  Light  &  Teleph.  Co. 
36:  124,  139  S.  W.  108,  236  Mo.  114. 
Railroad  business. 

Judicial  notice  as  to  customs,  see  infra,  52, 

53. 
See  also  supra,  15. 


1078 


EVIDENCE,  I.  e. 


32.  The  court  takes  judicial  notice  of  the 
the  existence  and  route  of  public  railways. 
Goodman  v.  Heilig,  36:  1004,  72  S.  E.  866, 
157  N.  C.  6. 

33.  The  courts  will  take  judicial  notice 
of  the  route  of  a  railroad  which  has  been 
built  and  operrted,  for  a  number  of  years, 
from  one  station  to  another  within  the 
state,  and  of  the  fact  that  for  a  great  por- 
tion of  the  distance  between  such  stations, 
the  road  extends  beyond  the  bounclaries  of 
the  state,  and  again  returns  into  it.  Pat- 
terson V.  Missouri  Pacific  Coal  Co.  15:  733, 
94  Pac.  138,  77  Kan.  236. 

34.  The  court  may  take  judicial  notice 
that  a  particular  railroad  company  is  en- 
gaged in  interstate  commerce.  Dingman  v. 
Duluth,  S.  S.  &  A.  R.  Co.  32:  1181,  130 
N.  W.  24,  164  Mich.  328. 

35.  Courts  take  judicial  notice  of  govern- 
ment requirements  in  regard  to  the  quaran- 
tine district  of  Southern  cattle,  and  of  the 
regulations  in  regard  to  cars  which  carry 
cattle  from  such  district.  Wabas  1  R.  Co.  v. 
Campbell,  3:  1092,  76  N.  E.  340,  219  III.  313. 

36.  The  court  will  take  judicial  notice 
that  Pullman  car  porters  have  authority 
from  the  railroad  company  to  assist  pas- 
sengers in  entering  and  leaving  the  trains. 
Gannon  v.  Chicago,  R.  I.  &  P.  R.  Co. 
23:  1061,  117  N.  W.  066,  141  Iowa,  37. 

37.  In  support  of  a  statute  forbidding 
corporations  which  operate  a  certain  class 
of  railroads  to  keep  their  employees  on 
duty  more  than  a  certain  number  of  hours 
in  each  twenty-four,  as  against  the  charge 
of  discrimination  in  favor  of  individuals, 
the  court  may  take  judicial  notice  that  all 
roads  to  which  the  act  could  apply  must 
necessarily  be  operated  by  corporations. 
People  V.  Erie  R.  Co.  29:  240,  91  N.  E.  849, 
198  N.  Y.  369. 

38.  The  court  will  judicially  notice 
that  grain  coming  to  Chicago  over  any  line 
of  road  may  readily  be  switched  to  any  el- 
evator in  any  part  of  the  city.  People  ex 
rel.  Healy  v.  Illinois  C.  R.  Co.  16:604,  84 
N.  E.  368,  233  111.  378. 

Street  railways. 

39.  Courts  will  take  judicial  notice  of 
the  dereliction  of  street  car  companies  in 
failing  to  provide  adequate  accommodations 
for  their  passengers.  Capital  Traction  Co. 
V.  Brown,  12:  831,  29  App.  D.  C.  473. 
By-la-ws  of  bank;  banking  bnsiness. 

40.  Courts  cannot  take  judicial  notice  of 
the  business  hours  of- any  particular  bank, 
but  the  courts  judicially  know  that  ordi- 
narily banks  in  the  cities  and  larger  towns 
of  the  state  do  not  open  their  doors  for 
business  at  an  hour  earlier  than  9  o'clock 
A.  M.  Lewis,  H.  &  Co.  v.  Montgomery  Sup- 
ply Co.  4:  132,  52  S.  E.  1017,  59  W.  Va.  75. 

41.  Though  the  courts  cannot  have  ju- 
dicial knowledge  of  the  existence  of  any 
particular  bank,  or  of  any  mode  of  business 
peculiar  to  a  given  bank,  they  will  take 
judicial  notice  that,  in  all  cities  and  towns 
of  large  population  and  extensive  business, 
within  their  jurisdiction,  banks  exist,  and 
of  the  facts  that  their  operations  are  gov- 
erned by  reasonable  rules  and  regulations, 
Digest  1-52  I..BJL.(N.S.) 


I  to  which  parties  dealing  with   them,  or  in 
commercial  paper,  are  deemed  to  liave  sub- 

I  jected  themselves.     Lewis,  H.  &  Co.  v.  Mont- 
gomery Supply  Co.  4:  132,  52  S.  E.  1017,  59 
W.  Va.  75. 
Disease. 
Judicial  notice  as  to  quarantine  of  southern 

cattle,  see  supra,  35. 
Judicial  notice  that  trees  are  subject  to,  see 
infra,  51. 

42.  The  court  takes  judicial  notice  that 
scarlatina  and  scarlet  fever  are  infectious 
or  contagious  diseases.  State  v.  Racskows- 
ki,  45:  580,  86  Atl.  606,  86  Conn.  677. 

43.  Judicial  notice  will  be  taken  of  the' 
fact  that  epilepsy  tends  to  weaken  mental 
force,  and  often  descends  from  parent  to 
child,  or  pintails  upon  the  offspring  of  the 
sufferer  some  other  grave  form  of  nervous 
malady.  Gould  v.  Gould,  2:  531,  61  Atl.  604, 
78  Conn.  242. 

44.  The  court  takes  judicial  notice  of  the 
fact  that  the  keeping  of  hogs  in  the  ordi- 
nary way  within  the  thickly  populated  por- 
tions of  a  city  tends  to  create  a  condition 
from  which  pestilence  and  disease  arise. 
Ex  larte  Botts,  44:  629,  154  S.  W.  221,  — 
Tex.  Crim.  Kep.  — . 

Offensive  bnsiness. 
See  also  supra,  44. 

45.  The  courts  will  take  judicial  notice 
of  the  fact  that  some  injury  must  result 
from  substance-laden  smoke  "pervading  the 
atmosphere  in  which  persons  and  property 
necessarily  remain.  Rochester  v.  Macaule.v- 
Fien  Milling  Co.  32:  554,  92  N.  E.  641.  19<> 
N.  Y.  207. 

46.  The  court  cannot  refuse  an  injunc- 
tion against  the  mafnten  nee  of  a  gas 
holder  in  a  residence  section  of  a  municipal 
corporation,  which  is  operated  in  such 
manner  as  to  constitute  a  nuisance  to 
neighboring  property,  upon  its  own  knowl- 
edge that  it  may  and  will  be  rendered  im- 
pervious to  the  escape  of  gas,  but  those 
questions  must  be  determined  from  the 
evidence  offered  to  establish  them.  Ro- 
mano V.  Birmingham  R.  L.  &  P.  Co.  46: 
642,  62  So.  677,  82  Ala.  335. 
Intoxicating  character  of  liqnors. 

47.  The  court  takes  judicial  notice  of  the 
fact  that  a  liquor  containing  more  than  2 
per  cent  of  alcohol  by  weight  will  intoxi- 
cate. Fuller  V.  Jackson,  30:  1078,  52  So. 
873,  97  Miss.  237. 

48.  The  court  will  not  take  judicial  no- 
tice of  the  intoxicating  character  of  a  new 
beverage  which  has  not  yet  become  so  well 
known  as  to  have  a  reputation  as  to  such 
character.  Gourley  v.  Com.  48:  315,  131 
S.  W.  34,  140  Ky.  221.  (Annotated) 

49.  A  Manhattan  cocktail  is  generally 
and  popularly  known  as  an  intoxicating  li- 
quor, and  no  proof  of  its  intoxicating  charac- 
ter is  necessary,  in  prosecutions  under  a  pro- 
hibitory law.  State  t.  Pigg,  19:  848,  97  Pac. 
859,  78  Kan.  618.  (Annotated) 
Trees  and  plants. 

30.  Judicial  notice  will  be  taken  of  the 
fact  that  locust  trees  do  not  make  desirable 
or    attractive    shade    trees.      Lagrange    v. 


EVIDENCE,  I.  f. 


107i> 


Overstreet,  31:  951,  132  S.  W.  169,  141  Ky. 
43. 

51.  A  court  may  take  judicial  notice  of 
the  fact  that  trees  and  other  forms  of  plant 
life  are  subject  to  destructive  communicable 
diseases.  State  ex  rel.  Hawley  v.  Nelson, 
15:  138,  115  N.  W.  93,  22  S.  D.  23. 
Usages  and  customs. 

See  also  supra,  40. 

52.  The  court  takes  judicial  notice  of  the 
custom  of  railroad  companies  to  carry  the 
sample  cases  of  traveling  salesmen  as  bag- 
gage. Fleischman  v.  Southern  R.  Co.  9:  519, 
66  S.  E.  974,  76  S.  C.  237. 

53.  The  court  takes  judicial  notice  of 
the  usages  of  railroad  companies  and  of  ex- 
press companies  with  respect  to  delivery 
of  property  transported  by  them.  State  v. 
Intoxicating  Liquors,  11:  550,  60  Atl.  393, 
102  Me.  206. 

54.  The  court  will  take  judicial  notice 
of  the  uniform  and  generally  known 
custom  of  life  insurance  companies  to  re- 
quire, as  a  condition  precedent  to  the  is- 
suance of  an  insurance  policy,  a  properly 
signed  and  executed  application  therefor, 
together  with  an  authenticated  medical  ex- 
amination of  the  applicant.  Taylor  v. 
Grand  Lodge  A.  0.  U.  W.  11:  ga,  111  N.  W. 
919,  101  Minn.  72. 

55.  The  court  will  judicially  notice  that 
when  an  application  is  made  to  a  public 
service  corporation  for  a  public  service, 
such  as  the  furnisliing  current  for  electric 
light,  certain  things  have  to  be  done  in 
order  to  connect  the  applicant's  premises 
with  the  company's  system;  and  that  the 
company,  and  not  the  applicant,  usually 
attends  to  such  matters,  except  in  so  far 
as  they  may  be  controlled  by  special  rules 
and  regulations  applicable  to  the  particular 
service.  State  ex  rel.  Mason  v.  Consumers' 
Power  Co.  41:1181,  137  N.  W.  1104,  119 
Minn.  225. 

56.  The  court  will  judicially  notice  that 
cities  are  divided  by  streets  and  alleys  into 
blocks  and  subdivisions  of  blocks;  that  pub- 
lic service  corporations  using  wires  for  the 
distribution  of  the  service  supplied  by  them, 
such  as  telephone  and  electric  light  service, 
custcfciarily  set  poles  in  the  streets  and 
alleys,  and  string  wires  along  and  across 
the  same;  that  such  wires  frequently  cross 
the  streets  and  alleys;  that  many  persons 
are  served  by  such  wires  so  strung  above 
and  across  the  streets  and  alleys;  that  when 
the  consent  of  the  city  is  necessary,  in 
order  that  the  service  company  may  law- 
fully set  such  poles  and  string,  such  wires 
as  may  be  necessary  to  carry  the  service  to 
the  persons  so  served  and  to  be  served,  the 
company,  and  not  its  patrons  or  applicants 
for  service,  usually  attends  to  the  obtaining 
of  the  necessary  consent  of  the  city  to  the 
use  of  the  streets,  by  application  to  the 
council  or  otherwise.  State  ex  rel.  Mason 
V.  Consumers'  Power  Co.  41:  n8i,  137  N. 
W.  1104,  119  Minn.  225. 

Infants'  services. 

57.  The  trial  judge  should  not  take 
Digest  1-52  I1R^.(N.S.) 


judicial  cognizance  of  the  fact  that  a  child 
two  years  ten  months  and  twenty  days  of 
age,  alleged  to  be  a  precocious  child,  capable 
of  rendering  services  to  his  parent  and 
actually  rendering  the  same,  is  incapable 
of  performing  valuable  service.  James  v. 
Central  of  Georgia  R.  Co.  41:  795,  75  S. 
E.  431,  138  Ga.  415. 
Police  regulations. 

58.  The  court  cannot  judicially  know 
that  a  license  fee  of  $1,000  per  annum  for 
the  privilege  of  conducting  a  brewery  busi- 
ness within  the  municipality  is  unreason- 
able or  excessive  as  a  matter  of  police  regu- 
lation. Schmidt  v.  Indianapolis,  14:  787, 
80  N.  E.  632,  168  Ind.  631. 

Mnnicipal  lighting. 

Notice  of  custom  as  to,  see  supra,  56. 

Time. 

59.  A  municipal  court  must  take  ju- 
dicial notice  of  the  standard  by  which  the 
time  in  the  city  is  measured.  Salt  Lake 
City  V.  Robinson,  35:  610,  116  Pac.  442,  39 
Utah,  260. 

60.  Courts  take  judicial  notice  of  the 
fact  that  this  country  has  been  divided 
into  zones  of  a  certain  width  in  each  of 
which  a  particular  standard  of  time  is  in 
force.  Salt  Lake  City  v.  Robinson,  35: 
610,  116  Pac.  442,  39  Utah,  260.  , 
Effects  of  mental  suffering. 

61.  The  fact  of  bodily  harm  from  mental 
suffering  must  be  found  to  exist  as  a  fact 
before  the  courts  will  be  justified  in  act- 
ing upon  it.  Mathewson  v.  Mathewson, 
18:  300,  69  Atl.  646,  81  Vt.  173. 

/.  By  jury. 

(See  also   same  heading  in  Digest  L.R.A. 
1-10.) 

Right  of  jurors  to  utilize  their  own  knowl- 
edge, see  Trial,  7,  8. 

62.  Jurors  are  not  restricted  to  a  con- 
sideration of  facts  directly  proved,  nor  are 
they  expected  to  lay  aside  matters  of  com- 
mon knowledge,  or  their  own  observation 
and  experience  of  the  affairs  of  life,  but, 
on  the  contrary,  may  give  effect  to  such  in- 
ferences as  common  knowledge  of  their  per- 
sonal observation  and  experience  may  rea- 
sonably draw  from  the  facts  directly  proved. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Moore, 
23:  962,  166  Fed.  663,  92  C.  C.  A.  357. 

63.  The  finding  of  a  jury  in  respect  to 
matters  as  to  which  m r  1  of  ordinary  knowl- 
edge and  observation  have  some  practical 
knowledge  cannot  be  attacked  on  the  ground 
that  there  was  no  evidence  to  sustain  it  be- 
cause of  the  lack  of  expert  testimony  on  the 
subject,  since  on  such  matters  jurors  arc 
capable  of  forming  their  own  opinions, 
though  they  might  be  assisted  by  the  opin- 
ions of  competent  experts.  Chicago,  M.  & 
St.  P.  R.  Co.  V.  Moore,  23:  962,  166  Fed.  663, 
92  C.  C.  A.  357. 


1080 


EVIDENCE,  II.  a. 


//.  Presumptions  and  burden  of  proof. 

a.  In  general;  laws;  ordinances. 

/See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Evidence  to  rebut  presumption,  see  infra, 
1921,  1922. 

SuflSciency  of  evidence  to  justify  presump- 
tion, see  infra,  2059. 

Presumptions  on  appeal,  see  Appeal  and 
Error,  VII.  d. 

•Correctness  of  instruction  as  to  burden  of 
proof,  see  Appeal  and  Error,  858. 

Prejudicial  error  in  instruction  as  to,  see 
Appeal  and  Error,  1385-1387,  1390. 

Waiver  or  cure  of  error  in  instruction  as 
to,  see  Appeal  and  Error,  848,  858. 

On  application  for  bail,  see  Bail  and  Re- 
cognizance,  14-16. 

As  to  basis  for  statement  by  court  as  to 
common  law,  see  Common  Law,  2. 

That  contract  is  governed  by  common  law, 
see  Conflict  of  Laws,  36. 

Validity  of  statute  as  to,  see  Constituticn- 
AL  Law,  140-142,  277,  619-624. 

Presumption  that  separation  walls  between 
buildings  or  yards  are  used  in  common, 
see  Covenants  and  Conditions,  68. 

Presumption  that  evidence  authorized  ver- 
dict, see  Criminal  Law,  164. 

Burden  of  proof  in  habeas  corpus  proceed- 
ing, see  Habeas  Corpus,  71. 

Presumption  of  abandonment  of  cause  of  ac- 
tion, see  Limitation  of  Actions,  9. 

Presumption  in  mandamus  case,  see  Manda- 
mus, 122. 

Presumption  as  to  prospective  operation  of 
statute,  see  Statutes,  292. 

SuflBciency  of  evidence  to  overcome  presump- 
tion, see  Trial,  243,  364,  366,  368. 

Presumption  against  trustworthiness  of  evi- 
dence, see  Trial,  682. 

Instructions  as  to,  see  Trial,  942,  943. 

Presumption  of  court  in  giving  instructions, 
see  Trial,  1011. 

Presumption  where  trustee  mingles  trust 
funds  with  his  own,  that  subsequent 
payments  are  made  from  his  own  por- 
tion of  fund,  see  Trusts,  151. 

64.  The  burden  of  proving  the  issue,  de- 
volved upon  a  party,  never  shifts,  although 
the  burden  of  producing  evidence  to  satisfy 
the  court  or  jury  may  shift  during  the  trial. 
McAdams  v.  Bailey,  13:  1003,  82  N.  E.  1057, 
169  Ind.  518. 

65.  Where  a  cause  of  action  is  jointly 
prosecuted  against  two,  if  the  burden  of 
proof  is  on  plaintiff  as  to  either  of  them 
the  court  may  give  him  the  burden  in  the 
whole  case.  New  Ellerslie  Fishing  Club  v. 
Stewart,  9:  475,  93  S.  W.  598,  123  Ky.  8. 

66.  In  the  absence  of  evidence,  the  court 
will  not  assume  that  there  was  discrimina- 
tion in  a  statute  providing  a  mode  of  assess- 
ment of  the  intangible  assets  of  chair-car 
<-omi)anies,  which  does  not  include  sleeping 
and  dining-car  companies.  Missouri,  K.  & 
T.  R.  Co.  V.  Shannon,  10:681,  100  S.  W. 
138,  100  Tex.  379. 

Digest  1-52  ]lRJi.(N.S.) 


Foreign  laurs. 

6T.  In  the  absence  of  proof  of  the  law 
of  a  foreign  country,  where  a  contract  for 
sale  of  the  good  will  of  a  business  was  en- 
tered into,  the  court  of  the  forum  will  pre- 
sume that  it  is  the  same  as  its  own  law;  and 
this  presumption  cannot  be  affected  by  state- 
ments in  its  own  opinions,  or  those  of  the 
courts  of  the  foreign  country,  which  are  not 
put  in  evidence.  Gordon  v.  Knott,  19:  762, 
85  N.  E.  184,  199  Mass.  173. 

68.  The  Federal  courts  cannot  assume 
without  proof  that,  under  the  law  of  Cuba, 
like  that  of  the  forum,  a  promise  to  repair 
or  replace  defective  machinery,  when  noti- 
fied by  an  employee  of  the  defect,  throws 
upon  the  master  the  risk  of  injury  to  such 
employee  from  such  defect  until  the  time 
for  performance  has  expired,  or  that  it 
does  away  with  or  leaves  to  the  jury  what 
otherwise  would  be  negligence  as  a  matter 
of  law.  Cuba  R.  Co.  v.  Crosby,  38:  40,  32 
Sup.  Ct.  Rep.  132,  22  U.  S.  473,  56  L.  ed. 
274.  (Annotated) 

69.  In  an  action  upon  a  simple  contract 
to  pay  money  for  a  valuable  consideration, 
entered  into  in  a  foreign  country  in  which 
the  common  law  does  not  prevail,  the  court 
will  presume,  in  the  absence  of  evidence  to 
the  contrary,  that  the  law  of  such  country 
recognizes  an  enforceable  obligation  upon 
such  contract.  Parrot  v.  Mexican  C.  R.  Co. 
34:  261,  93  N.  E.  590,  207  Mass.  184. 

( Annotated ) 
Lia^xr  of  other  states. 
Judicial  notice  of   law  of  other  state,   see 

supra,  3,  4. 
Necessity  of   pleading  and   proving   law   of 

other  state,  see  Pleading,  59-63. 
Presumption  that  interpretation  of  adopted 

statute  was  also  adopted,  see  Statutes, 

276. 

70.  The  laws  of  a  sister  state  will  be  pre- 
sumed to  be  the  same  as  the  local  laws  in 
the  absence  of  pleading  and  proof  to  the 
contrary.  Sheppard  v.  Cceur  d'Alene  Lum- 
ber Co.  44:  267,  112  Pac.  932,  62  Wash.  12. 

71.  No  presumption  exists  that  the 
statutory  law  of  a  sister  state  is  the  same 
as  that  of  Minnesota.  Wilcox  v.  Bergman, 
5:  938,  104  N.  W.  955,  96  Minn.  219.       » 

72.  In  the  absence  of  proof  of  the  law  of 
another  jurisdiction,  the  inference  is  that 
the  common  law  still  prevails  there.  Bodine 
V.  Berg  (N.  J.  Err.  &  App.)  40:  65,  82  Atl. 
901,  82  N.  J.  L.  662. 

73.  The  court  presumes,  in  the  absence  of 
evidence  to  the  contrary,  that  the  common 
law  of  a  sister  state  is  the  same  as  its  own. 
Southern  Exp.  Co.  v.  Owens,  8:  369,  41  So. 
752,  146  Ala.  412. 

74.  In  the  absence  of  proof  of  a  foreign 
law  in  an  action  in  which  it  is  applicable, 
the  court  will  presume  that  the  common  law 
is  in  force,  and  that  it  is  the  same  as  the 
local  common  law.  Southworth  v.  Morgan, 
51:  56,  98  N.  E.  490,  205  N.  Y.  293. 

75.  In  the  absence  of  evidence  to  the 
contrary,  the  presumption  will  prevail  that 
the  construction  given  by  the  courts  of  an- 
other state  to  a  common-law  doctrine  is  the 
same  as  that  of  the  state  in  which  the  ques- 


EVIDENCE,  II.  b. 


1081 


tion  arises.     Mount  v.  Tuttle,  2:  428,  76  N. 
E.  873,  183  N.  Y.  358. 

76.  A  common-law  state  will  presume 
that  the  law  of  a  sister  state  colonized  from 
England  is  the  same  upon  the  subject  of 
validity  of  infants'  contracts  as  its  own. 
International  Text-Book  Co.  v.  Connelly,  42: 
1 1 15,  99  N.  E.  722,  206  N.  Y.  188. 

77.  The  common  law  of  one  state,  goT- 
erning  commercial  transactions  in  issue  in 
the  courts  of  another  state,  will  be  pre- 
sumed to  conform  to  the  lex  fori,  in  the 
absence  of  proof  on  the  subject.  Sykes  v. 
Citizens'  Nat.  Bank,  19:  665,  98  Pac.  206,  78 
Kan.  688. 

78.  In  determining  the  merits  of  a  de- 
fense interposed  by  a  surety  upoa  a  promis- 
sory note  made  in  one  state,  bur.  sought  to 
be  enforced  in  another,  it  will  be  presumed, 
in  the  absence  of  proof  to  the  contrary, 
that,  upon  the  question  presented,  the  com- 
mon law  as  interpreted  by  the  court  of  the 
forum  prevails  in  the  state  in  which  the 
contract  was  made.  Thomas  v.  Clarkson, 
6:  658,  54  S.  E.  77,  125  Ga.  72. 

79.  Where  a  question  before  the  court 
is  governed  by  the  rule  of  the  common  law, 
instead  of  by  statute,  the  court  will  pre- 
sume, in  the  absence  of  proof  to  the  con- 
trary, that  the  common  law  prevails  in  the 
state  where  the  injury  occurred,  and  that 
the  common  law  is  understood  and  con- 
strued to  be  the  same  in  the  foreign  state 
as  it  is  in  the  state  of  the  forum.  Maloney 
V,  Winston  Brothers  Co.  47:  634,  111  Pac. 
1080,  18  Idaho,  740. 

80.  The  act  of  Congress  applicable  to 
the  District  of  Columbia,  expressly  provid- 
ing that  a  divorce  from  the  bonds  of  matri- 
mony may  be  granted  "where  either  party 
has  committed  adultery  during  the  mar- 
riage," negatives  any  presumption  by  a  court 
of  another  jurisdiction  that  the  common-law 
rule  denying  divorce  a  vinculo  for  such 
ground  is  still  in  force  in  the  District. 
Dimpfel  v.  Wilson,  13:  1180,  68  Atl.  561, 
107  Md.  329. 

81.  It  is  presumed  that  the  statutes  of 
a  sister  state  where  is  located  a  mine  be- 
longing to  a  corporation  whose  directors 
do  business  in  the  state  where  suit  is 
brought,  as  to  the  right  of  stockholders  to 
inspect  the  mine,  are  the  same  as  the  local 
statutes.  Hobbs  v.  Tom  Reed  Gold  Mines 
Co.  43:  1112,  129  Pac.  781,  164  Gal.  497. 

82.  In  a  suit  in  one  state  on  a  contract 
made  and  intended  to  be  performed  in  an- 
other, in  which  the  defendant  pleads  the 
statute  of  the  other  state  defining  usury  and 
prescribing  as  a  penalty  the  forfeiture  of  all 
interest,  and  bases  an  appropri3>'>  plea  of 
usury  on  that  statute,  in  order  to  maintain 
the  plea  it  is  essential  that  he  prove  that 
the  statute  was  in  force  at  the  time  of  the 
execution  of  the  contract.  Thomas  v.  Clark- 
son,  6:  658,  54  S.  E.  77,  125  Ga.  72 
Constitutional        provision        adopted 

from  other  state. 

83.  Where  a  constitutional  provision 
has  been  adopted  from  another  state,  and 
the  court  of  last  resort  of  such  state  had 
construed  the  provision  in  that  state  prior 
Digest  1-52  L.R.A.(N.S.)  ' 


to  its  adoption,  the  presumption  arises  that 
the  framers  of  the  Constitution,  in  adopt- 
ing such  provision,  meant  and  intended  to 
also  adopt  the  construction  that  had  been 
placed  upon  it  by  the  highest  court  of  the 
state  from  which  it  was  taken.  Re  Schrib- 
er,  37:  693,  114  Pac.  29,  19  Idaho,  531. 
Validity  of  statutes. 

84.  An  act  of  a  state  legislature,  fixing 
rates  for  either  passenger  or  freight  trans- 
portation, is  to  be  regarded  as  prima  facie 
valid,  and  the  onus  rests  upon  the  carrier 
to  prove  its  assertion  to  the  contrary.  Ex 
parte  Young,  13:  932,  28  Sup.  Ct.  Rep.  441, 
209  U.  S.  123,  52  L.  ed.  714. 

85.  A  statute  fixing  maximum  rate* 
which  express  companies  may  charge  and 
receive  as  compensation  for  their  services 
is  presumed  to  be  constitutional;  and  the 
burden  of  proof  is  on  one  who  challenges  its 
validity  to  show,  by  a  preponderance  of  the 
evidence,  that  the  legislation  complained  of 
clearly  contravenes  some  provision  of  the 
Constitution.  State  v.  Adams  Express  Co.. 
42:  396,  122  N.  W.  691,  85  Neb.  25. 
Ordinances. 

Sufficiency  of  evidence  to  overcome  presump- 
tion of  reasonableness,  see  infra,  2344. 

86.  It  is  the  duty  of  a  party  assailing  a 
municipal  ordinance  to  show  its  illegality; 
and  any  doubt  upon  the  subject  will  be  de- 
cided in  favor  of  the  ordinance.  Shreveport 
V.  Dantes,  8:  304,  42  So.  716,  118  La.  113. 
Presumption  and  burden  of  proof  as  to,  see 

Evidence,  86,  87. 

87.  The  presumption  in  favor  of  munici- 
pal ordinances  is  not  sufficient  to  uphold  an 
ordinance  which  the  legislature  has  empow- 
ered municipalities  having  a  specified  mini- 
mum population  to  pass,  where  the  Federal' 
census  shows  that  the  municipality  which 
enacted  the  ordinance  did  not  contain  the 
required  population,  and  there  is  no  evi- 
dence tending  to  show  that  it  did.  Jones- 
V.  Hines,  22:  1098,  47  So.  739,  157  Ala.  624. 

h.  Establishing  allegations  and  claims. 

(See  also  same  heading  in  Digest  L.R.A. 
l-tO.) 

As  to  viciousness  of  animals,  see  Animals,. 
18. 

Complaining  for  first  time  on  appeal  of  fail- 
ure to  prove  presentment  and  notice  in 
action  against  indorser,  see  Appeal  axi> 
Error,  77?. 

Presumption  of  reasonableness  of  demand  in 
mandamus  case,  see  Mandamus,  124, 
125. 

See  also  infra,  199;  Pleading,  430,  522. 

88.  The  burden  of  proof  to  establish  the 
affirmative  of  an  issue  involved  in  an  action 
rests  upon  the  party  alleging  the  facts  con- 
stituting that  issue,  and  remains  there  un- 
til the  end.  Allen  v.  Chicago,  B.  &  Q.  R. 
Co.  23:  278,  118  N.  W.  655,  82  Neb.  726. 

89.  In  assailing  a  prima  facie  right  or 
title  by  a  bill  in  equity,  the  plaintiff  must 
aver  and  prove  facts  sufficient  to  overcome 
it;   otherwise  he  cannot  ordinarily  put  the 


1082 


EVIDENCE,  n.  c. 


defendant  to  the  proof  of  a  perfect,   inde- 
feasible title  or  right.     Hardman  v.  Cabot, 
7:  506   55  S.  E.  756,  60  W.  Va.  664. 
Negligence. 
As  to  cause  of  death  or  injury,  see  infra, 

324-329. 
See  also  infra,  II.  h. 

90.  That  defendant  joined  issue  upon  a 
complaint  containing  a  general  averment  of 
negligence,  without  moving  to  make  the 
pleadings  more  definite,  does  not  relieve 
plaintiff  from  proving  a  particular  act  of 
negligence  upon  which  to  base  his  right  to 
recover.  Kennedy  v.  Hawkins,  25:  606,  102 
Pac.  733,  54  Or.  164. 

91.  In  an  action  for  wrongful  death  by 
intentionally  killing  plaintiff's  intestate, 
where  self-defense  is  pleaded,  plaintiff  must 
first  establish  his  case  by  proper  and  suffi- 

■cient  proof,  and  defendant  then  has  the  bur- 
den of  establishing  his  justification  or  ex- 
cuse. Suell  V.  Derricott,  23:  ggQ,  49  So.  895, 
161   Ala.   259. 

92.  One  who,  having  been  injured  by  the 
fall  of  an  elevator,  alleges  in  his  complaint 
the  specific  acts  of  negligence  which  caused 
the  accident,  is  bound  to  prove  them,  and 
cannot  rely  upon  the  general  rule  which 
presumes  negligence  from  the  circumstances 
attending  the  accident.  Orcutt  v.  Century 
Bldg.  Co.  8:  929,  99  S.  W.  1062,  201  Mo. 
424. 

Freedom     from     contributory     negli- 
gence. 

93.  In  an  action  against  a  county  to  re- 
cover damages  for  personal  injuries  sus- 
tained while  riding  in  a  private  vehicle  over 
a  defective  bridge,  an  unnecessary  allega- 
tion in  the  complaint,  that  the  injury  was 
caused  without  any  fault  or  negligence  on 
the  part  of  the  plaintiff  or  the  person  driv- 
ing the  vehicle,  will  be  construed  as  alleging 
that  the  driver  was  without  fault  or  negli- 
gence which  could  be  imputed  to  the  plain- 
tiff; and  the  latter  need  not  prove  that  the 
driver  was  without  negligence.  Loso  v.  Lan- 
caster County,  8:  618,  109  N.  W.  752,  77  Neb. 
466. 

Criminal  cases. 

Admissibility     of     confessions,     8ee     infra, 

VIII. 
Burden   of   establishing   defense,   see   infra, 

102-109. 
Insanity  of  accused,  see  infra,  221-223. 
See  also  infra,  2402. 

94.  A  plea  of  not  guilty  to  an  indictment 
from  which  material  mattefs  are  omitted, 
which  are  stated  to  have  been  unknown  to 
the  grand  jury,  puts  in  issue  such  allega- 
tion, and  requires  the  state  to  prove  it. 
People  V.  Hunt,  36:  933,  96  N.  E.  220,  251 
111.   446. 

95.  It  ia  not  necessary  for  the  state,  in 
a  prosecution  under  a  statute  providing  for 
increased  punishment  upon  second  offenders, 
to  prove  that  the  judgment  of  conviction 
in  the  former  prosecution  has  not  been  re- 
versed or  set  aside,  although  this  is  alleged 
in  the  indictment,  but  the  judgment  roll 
being  offered  in  evidence  and  appearing  fair 
upon  its  face,  the  judgment  will  be  pre- 
sumed in  full  force  and  effect  until  the 
Digest  1-52  11R.A.(N.S.) 


contrary  is  shown.     State  v.  Findling,  49: 
449,  144  N.  W.  142,  123  Minn.  413. 

o.  Defenses. 

(Bee  also   same  heading  in  Digest  L.R.A. 
1-10.) 

Sufficiency  of  evidence  as  to  negligence,  see 

infra,  2167-2169. 
See  also  supra,  91 ;  infra,  113. 

96.  The  burden  of  showing  extenuating 
circumstances  for  siiooting  a  person  is  upon 
the  defendant.  Daniel  v.  Petersburg  R.  Co. 
4:  485,  23  S.  E.  327,  117  N.  C.  592, 

97.  The  burden  of  showing  that  an  auto- 
mobile in  which  a  person  was  riding  when 
injured  was  not  registered,  as  required  by 
statute,  is  upon  the  one  seeking  to  avoid 
liability  for  the  injury  upon  the  ground  of 
absence  of  registry.  Conroy  v.  Mather,  52: 
801,   104  N.  E.  487,  217   Mass.  91. 

98.  In  an  action  in  replevin  to  recover 
possession  of  intoxicating  liquors  it  is  not 
necessary  for  the  plaintiff  affirmatively  to 
show  that  they  were  not  seized  under  a 
statute  which  contains  the  provision  that 
no  liquors  seized  by  virtue  of  any  warrant 
issued  under  the  provisions  of  the  act  shall 
be  taken  from  the  possession  of  the  officer 
seizing  the  same,  under  any  replevin  or 
other  process,  where  there  is  nothing  in  the 
record  to  show  that  the  defendants  in  the 
replevin  suit  are  officers,  or  that  they  had 
seized  or  had  a  right  to  seize  the  liquor  by 
virtue  of  any  authority.  Blunk  v.  Waugh, 
39:  1093,  122  Pac.  717,  32  Okla.  616. 
Privilege. 

See  also  infra,  261. 

99.  The  burden  of  proving  that  a  slan- 
derous communication  was  privileged  is  on 
the  defendant  in  an  action  for  slander. 
Abraham  v.  Baldwin,  10:  1051,  42  So.  591, 
52  Fla.   151. 

Contracts  generally. 

Matters  as  to  contracts  generally,  see  infra, 

II.  k. 
Burden  of  proving  payment  in  action  to  re- 
cover   assigned    wages,    see    Pleading, 
489. 
See  also  infra,  536. 
Carriers. 
Matters  as  to  carriers'  contracts,  see  infra, 

525-529. 
Burden  of  proving  justification  for  refusing 
to  transport  passengers,  see  Tbial,  742. 
100.  The  burden  of  proof  is  upon  the 
carrier  to  exempt  itself  from  liability  for 
loss  of  goods  consigned  to  it  for  transporta- 
tion, where  the  defense  is  that  the  loss  was 
caused  by  an  act  of  God  or  some  irresistible 
superhuman  cause.  Chicago,  R.  I.  &  P.  R. 
Co.  V.  Logan,  Snow,  &  Co.  29:  663,  105  Pac. 
343,  23  Okla.  707.  (Annotated) 

101.  The  delivery,  by  a  terminal  carrier 
to  the  consignee,  of  a  portion  of  a  stove, 
casts  upon  it  the  burden  of  proving  that  it 
never  received  another  portion  which  was 
shipped,  but  not  delivered.  Venning  v.  At- 
lantic Coast  Line  R.  Co.  12:  1217,  58  S.  E. 
983.  78  S.  C.  42. 


EVIDENCE,  II.  d,  e,  1. 


1083 


Criminal  cases. 

Burden  of  establishing  allegations  or  claims 

generally,  see  supra,  94,  95. 
Insanity  of  accused,  see  infra,  221-223. 
See  also  infra,  112. 

102.  When  the  commonwealth  has  proved 
facts  showing  an  illegal  sale  of  liquor,  Lhs 
burden  is  on  defendant  to  establish  the  de- 
fense on  which  it  relies, — ^that  the  transac- 
tion was  one  of  interstate  commerce.  Adams 
Exp.  Co.  V.  Com.  5:  630,  92  S.  W.  932,  124 
Ky.  160. 

103.  Where,  in  the  trial  of  an  indict- 
ment for  robbery,  it  is  proved  beyond  a 
reasonable  doubt  that  the  defendant  was 
present  at  the  time  and  place  of  the  crime 
and  participated  in  the  acts  which  consti- 
tute the  robbery,  and  the  defendant,  for  his 
defense,  interposes  a  plea  of  duress,  the 
burden  is  not  on  the  state  to  disprove  such 
plea,  but  is  on  the  defendant  to  maintain 
his  plea  by  a  preponderance  of  the  evidence. 
State  V.  Sappienza,  34:  1118,  95  N.  E.  381, 
84  Ohio  St.  63. 

104.  Where,  by  statute,  accused,  in  a 
criminal  action,  has  the  burden  of  showing 
the  facts  or  circumstances  on  which  he 
relies  to  excuse  or  justify  the  act,  when 
facts  have  been  established  which  constitute 
the  offense,  one  shown  {o  have  sold  intoxi- 
cating liquor  in  prohibition  territory  has 
the  burden  of  showing  that  he  had  a  li- 
cense to  sell  on  prescription,  and  that  the 
sales  were  so  made.  Bell  v.  State,  36:  98, 
137  S.  W.  670,  62  Tex.  Grim.  Rep.  242. 

(Annotated) 

105.  One  accused  of  counseling  suicide  has 
ht»t  the  burden  of  showing  that  decedent 
acted  of  his  own  volition,  and  not  imder  the 
advice  and  counsel  of  the  accused.  State  v. 
Webb,  20:  1 142,  115  S.  W.  998,  216  Mo.  378. 

106.  One  accused  of  assault  by  pointing 
a  cocked  pistol  at  another  has  the  burden 
of  showing  that  it  was  not  loaded  to  avoid 
liability.  Territory  v.  Gomez,  42:  975,  125 
Pac.  702,  14  Ariz.  139.  (Annotated) 

107.  Where  an  intentional  killing  by  the 
use  of  a  deadly  weapon  has  been  established, 
accused  has  the  burden  of  showing  that  it 
was  in  self-defense,  by  a  fair  preponderance 
of  facts.  Com.  v.  Palmer,  19:  483,  71  Atl. 
100,  222  Pa.  299.  (Annotated) 

108.  The  presumption  of  murder  which 
arises  from  the  wilful,  intentional  killing 
of  one  man  by  another  does  not  prohibit 
the  latter  from  showing  that  the  killing 
was  done  in  self-defense.  State  v.  Larkin, 
46:13,  157  S.  W.  600,  250  Mo.  218. 

109.  The  court  cannot  assume  as  matter 
of  law,  on  a  trial  of  one  accused  of  killing 
an  officer  who  was  attempting  to  arrest  him, 
that  the  arrest  had  the  effect  of  exciting 
in  his  mind  a  sudden  heat  of  passion  such 
as  to  make  the  desire  to  kill  irrosistible, 
and  thereby  reduce  the  offense  to  man- 
slaughter. State  v.  Meyers,  33:143,  110  Pac. 
407,  57  Or.  50. 

Dieest  1-52  I<.B.A.(N.S.) 


d.  Exceptions  or  exemptions. 

(See  also  same  heading  in  Digest  L.R.A.. 
1-10.) 

See  also  infra,  560. 

110.  If  two  estates  in  the  same  property 
united  in  the  same  person  in  the  same  ca- 
pacity, and  it  is  contended  that  no  merger 
took  place,  the  person  making  such  con- 
tention, if  entitled  so  to  do,  must  allege  and 
prove  facts  negativing  the  existence  of  such 
merger.  Muscogee  Mfg.  Co.  v.  Eagle  & 
Phenix  Mills,  7:  1139,  54  S.  E.  1028,  126 
Ga.  210. 

111.  One  suing  on  a  note,  a  material  al- 
teration of  which  is  shown,  has  the  burden 
of  showing  that  the  alteration  was  made 
under  circumstances  rendering  it  lawful, 
and  which  would  not  preclude  a  recovery  by 
him.  Merritt  v.  Dewey,  2:  217,  75  N.  E. 
1066,  218  111.  599. 

112.  In  a  prosecution  for  unlawfully  prac- 
tising medicine,  it  is  incumbent  upon  the 
accused  to  show  that  he  is  within  any  of 
the  exceptions  of  the  statute,  since  proof 
of  such  matters  lies  peculiarly  within  his 
knowledge.  State  v.  Huff,  12:  1094,  90  Pac. 
279,  75  Kan.  585. 

Insurance. 

113.  The  burden  is  on  the  insurer  to  al- 
lege and  prove  that  the  death  of  the  in- 
sured resulted  from  an  excepted  cause  and 
within  the  time  to  which  such  exception  is 
limited.  Red  Men's  Fraternal  Acci.  Asso. 
V.  Rippey,  50:  ioo5,  103  N.  E.  345,  104  N.  E. 
641,  181  Ind.  454.  (Annotated) 

114.  One  seeking  to  recover  upon  an  acci- 
dent insurance  policy  for  the  death  ->\.  c\w 
insured  is  not  bound  to  show  that  the  death 
did  not  result  from  one  of  the  causes  from 
liability  for  which  the  policy  relieves  the 
insurer.  Starr  v.  A^tna  L.  Ins.  Co.  4: 
636,  83  Pac.  113,  41   Wash.   199. 

( Annotated ) 

e.  Concerning  persons. 

1.  Status,  condition,   or  relation. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Tliat  grantor  remaining  in  possession  after 
execution  of  deed  is  the  tenant  of 
the  grantee,  see  Estoppel,  248. 

Confidential  or  fiduciary  relation. 

See  also  infra,  268,  269,  285,  287. 

115.  The  burden  of  proving  the  exist- 
ence of  a.  confidential  or  fiduciary  rela- 
tion between  brothers  is  upon  the  party 
asserting  the  existence  of  such  relation- 
ship. Crawford  v.  Crawford,  28:  353,  67 
S.  E.  673,  134  Ga.  114. 

116.  No  presumption  of  a  confidential  or 
fiduciary  relation  between  brothers  arises 
from  the  fact  of  their  relation,  or  from 
the  facts  that  one  is  six  years  the  senior 
of  the  other,  that  they  were  reared  to- 
gether,   and    that    one    attended    a    school 


1084 


EVIDENCE,  II.  e,  1. 


taught  bv   the  other.     Crawford  v.  Craw- 
ford, 28:  353,  67  S.  E.  673,  134  Ga.  114. 
Itegitimacy. 
Sufficiency  of  proof  as  to,  see  infra,  2210, 

2211. 
See  also  supra,  117,  118;   infra,  146. 

117.  Every  child  begotten  in  lawful  wed- 
lock is  presumed  in  law  to  be  legitimate. 
Powell  V.  State  ex  rel.  Fowler,  36:  255, 
95  N.  E.  660,  84  Ohio  St.   165. 

118.  Two  men  bearing  the  same  surname 
and  calling  each  other  brother  are  presumed 
to  be  legitimate  children  of  the  same  father. 
Re  Hartman,  36:  530,  107  Pac.  105,  167 
Gal.   206. 

Chastity. 

119.  The  state  must  prove  chastity,  and 
cannot  rely  on  a  presumption  of  it  in  a 
prosecution  under  a  statute  making  carnal 
knowledge  of  an  unmarried  female  of  previ- 
ous chaste  character  between  certain  ages 
rape.  State  v.  Kelly,  43:  476,  150  S.  W. 
1057,  245  Mo.  489.  (Annotated) 

120.  Under  a  statute  making  seduction 
of  a  woman  of  previous  chaste  character 
punishable,  prior  chastity  must  be  proved, 
and  cannot  be  presumed;  at  least,  where 
such  was  the  judicial  interpretation  of  the 
statute  in  the  state  from  which  it  was 
adopted.  State  v.  Holter,  46:  376,  142  N. 
W.   657,  32   S.   D.  43. 

Character. 

121.  The  offering  by  accused  of  evidence 
as  to  his  good  character  for  truth  and  ve- 
racity does  not  deprive  him  of  the  presump- 
tion that  his  character  for  peace  and  quiet- 
ness is  good.  Durham  v.  State,  51:  180, 
163  S.  W.  447,  128  Tenn.  636. 

122.  The  presumption  of  the  good  charac- 
ter for  peace  and  quietness  of  one  accused 
of  murder  cannot  be  considered  as  evidence 
in  his  favor,  in  addition  to  the  presumption 
of  innocence,  to  raise  a  reasonable  doubt  of 
guilt  in  the  minds  of  the  jury.  Durham  v. 
State,  51:  180,  163  S.  W.  447,  128  Tenn.  636. 
Unfitness. 

123.  The  presumption  of  unfitness  on  the 
part  erf  a  father  for  custody  of  his  child, 
raised  by  refusal  of  the  court  to  award  it 
to  him  upon  granting  a  decree  of  divorce 
against  him,  is  overcome  by  evidence  of 
exemplary  life  for  nine  months  after  the 
passing  of  the  decree,  where  there  is  noth- 
ing to  show  the  nature  of  the  unfitness 
upon  which  the  court  acted.  Morin  v. 
Morin,  37:  585,  119  Pac.  745,  66  Wash.  312. 
Alienage  or  citizenship. 

124.  One  who  continued  to  reside  in  this 
country  after  the  Declaration  of  Independ- 
ence, giving  his  allegiance  to  the  new  gov- 
ernment, will  be  deemed  to  have  become  an 
American  citizen.  State  ex  rel.  Phelps  v. 
Jackson,  8:  1245,  65  Atl.  657,  79"  Vt.  504. 

125.  Although  residence  raises  the  pre- 
sumption of  citizenship,  it  may  be  overcome 
by  evidence  of  foreign  birth,  which  raises 
the  presumption  of  citizenship  in  the  coun- 
try of  birth.  State  ex  rel.  Phelps  v.  Jack- 
son, 8:  1245,  65  Atl.  657,  79  Vt.  504. 

(Annotated) 

126.  To  overcome  the  presumption  of  con- 
tinued allegiance  of  a  citizen  of  the  United 
Digest  1-52  I*R.A.(N.S.) 


States   who   removes  to   a   foreign   country, 
evidence  of  intention  to  terminate  it  must 
be  produced.     State  ex  rel.  Phelps  v.  Jack- 
son, 8:  1245,  65  Atl.  657,  79  Vt.  504. 
Domicil. 
Presumption  of  citizenship  from  domicil,  see 

supra,  124-126. 
Presumption  as  to  continuance  of,  see  infra, 

318. 
Sufficiency  of  proof  of  change  of,  see  infra, 

2216. 

127.  The  home  of  his  widowed  mother 
will  be  presumed  to  be  that  of  an  unmar- 
ried son  who,  upon  reaching  majority,  goes 
away  to  work,  but  makes  such  home  his 
headquarters,  in  the  absence  of  anything 
to  show  an  intention  to  change  it  to  an- 
other place.  Miller  v.  Sovereign  Camp 
Woodmen  of  the  World,  28:  178,  122  N. 
W.   1126,  140  W'is.  505. 

128.  One  seeking  to  distribute  the  estate 
of  a  former  resident  of  a  particular  state, 
according  to  the  laws  of  a  foreign  country 
in  which  he  resides,  must  establish  that  he 
had  acquired  a  domicil  there  in  fact  and 
in  law.  Mather  v.  Cunningham,  29:  761,  74 
Atl.  809,  105  Me.  326. 

Insolvency. 

129.  Proof  of  insolvency  at  a  particular 
time  does  not  create  a  presumption  that  the 
same  condition  existed  at  any  considerable 
time  anterior  thereto,  nor  is  it  evidentiary 
of  such  condition  at  a  time  very  remote  to 
that  to  which  the  evidence  is  directed.  Elli'* 
V.  State,  20:  444,  119  N.  W.  1110,  138  Wis. 
513. 

Agency. 

Sufficiency  of  evidence,  see  infra,  2245—2252. 
Presumption   that  carrier  is  agent  of  con- 
signee, see  Intoxicating  Liquors,  172. 

130.  One  who  answers  a  telephone  call 
from  the  place  of  business  of  the  person 
called  for,  and  undertakes  to  respond  as  his 
agent,  is  presumed  to  speak  for  him  in  re- 
spect to  the  general  business  carried  on  by 
such  person  at  that  place.  Gilliland  v. 
Southern  R.  Co.  27:  1106,  67  S.  E.  20,  85 
S.  C.  27. 

131.  Payment  to  a  person  not  having  pos- 
session of  a  note,  properly  indorsed,  does 
not  raise  a  presumption  of  agency  in  such 
person  to  receive  payment  of  the  debt  evi- 
denced by  the  note,  even  if  the  place  of  pay- 
ment is  designated  in  the  contract,  if  the 
person  to  whom  payment  shall  be  made  is 
not  designated.  Hoflfraaster  v.  Black,  21: 
52,  84  N.  E.  423,  78  Ohio  St.  1.    (Annotated) 

132.  In  an  action  on  an  insurance  policy 
the  burden  is  on  the  company  pleading  that 
the  return  of  the  sheriff  that  he  s?rved 
process  upon  its  agent  is  false  for  the  reason 
that  the  person  named  was  not  its  agent,  to 
negative  the  agency  of  such  person,  where 
the  plaintiff  in  her  reply  denies  such  alle- 
gations. Taylor  v.  Illinois  Commercial 
Men's  Asso.  24:  1174,  122  N.  W.  41,  84  Neb. 
799. 

133.  The  burden  is  upon  a  parent  whose 
child  causes  an  injury  while  drivinsr  the 
parent's  automobile,  to  overcome  the  pre- 
sumption  that   the   child    was   driving   the 


EVIDENCE,  II.  e,  2. 


1085 


vehicle  for  the  owner.     Birch  v.  Abercrom- 
bie,  50:  59,  133  Pac.  1020,  74  Wash.  486. 
Medical  qualiiicatioiis. 

134.  A  physician  suing  for  the  value  of 
services  rendered  is  not  bound,  in  the  lirsi 
instance,  to  show  that  he  had  a  license  to 
practise  medicine.  Leggat  v.  Gerrick, 
8:  1238,  88  Pac.  788,  35  Mont.  91. 

( Annotated ) 
As  stockholder. 

135.  Where  the  stock  books  of  a  corpora- 
tion show  that  certain  individuals  are  stock- 
holders therein,  a  prima  facie  presumption 
is  created  that  such  persons  are  stockhold- 
ers in  the  corporation.  Randall  Printing 
Co.  V.  Sanitas  Mineral  Water  Co.  43:  706, 
139  N.  W.  606,   120  Minn,  268. 

As  surety. 

136.  The  mere  fact  that  the  name  of  a 
partnership  is  placed  on  a  note  as  maker  af- 
ter that  of  a  corporation  does  not  raise  the 
presumption  that  it  war  surety  only,  so  as 
to  show  on  the  face  of  the  instrument  an 
unauthorized  use  of  the  partnership  name, 
and  render  the  note  invalid  in  favor  of  part- 
ners without  notice,  in  the  hands  of  one  who 
took  it  for  value  before  maturity  from  one 
having  apparent  title  to  it.  Union  Nat. 
Bank  v.  Neill.  10:426,  149  Fed.  711,  79  C.  C. 
A.  417.  (Annotated) 

2.  Marriage;    identity;    divorce. 

(See  also   same   heading   in  Digest  L.R.A. 
1-10.) 


Marriage. 

Sufficiency  of  proof  of,  see  infra,  2202-2204. 
Sufficiency  of  evidence  to  overcome  presump- 
tion, see  Evidence,  2204. 
See  also  infra,  152,  297. 

137.  In  an  action  by  a  mother  to  recover 
damages  for  the  alleged  killing  of  her  minor 
child,  the  burden  of  proof  rests  upon  the 
plaintiff  to  show  marriage,  where  an  issue 
in  that  regard  is  tendered  bv  the  defend- 
ant. Lynch  v.  Knoop,  8:  480,  43  So.  252,  118 
La.  611. 

138.  The  authority  of  the  official  perform- 
ing a  marriage  ceremony  and  all  the  pre- 
requisites of  a  valid  marriage  will  be  pre- 
sumed until  the  contrary  is  made  to  appear. 
Sloan  V.  West,  17:  960,  96  Pac.  684,  50 
Wash.   86. 

139.  The  presumption  attaching  to  a  sec- 
ond marriage  of  a  person  is  not  sufficient 
to  overcome  direct  testimony  of  himself  and 
his  former  wife  and  distinterested  witnesses, 
that  the  first  marriage  was  legally  solem- 
nized. Sloan  V.  West,  17:  960,  96  Pac.  684, 
50  Wash.  86. 

140.  In  a  prosecution  for  bigamy,  the  va- 
lidity of  the  first  marriage  will  not  be  pre- 
sumed, but  the  evidence  must  show  it  be- 
yond a  reasonable  doubt.  McCombs  v. 
State,  9:  1036,  99  S.  W.  1017,  50  Tex.  Crim. 
Rep.  490.  (Annotated) 

141.  All  the  presumptions  necessary  to 
make  a  marriage  valid,  including  capacity 
to  contract,  attach  on  proof  of  a  formal 
ceremony  of  marriage  and  cohabitation  by 
Digest  1-52  L.R.A.(N.S.) 


the  parties  under  the  belief  that  they  were 
lawfully  married.  Murchison  v.  Green, 
11:  702,  57  S.  E.  709,  128  Ga.  339. 

142.  One  who,  for  the  mere  purpose  of 
pecuniary  gain,  attacks  a  marriage  on  the 
ground  that  one  of  the  parties,  since  de- 
ceased, had  at  the  time  a  living  spouse,  has 
the  burden  of  overcoming  the  presumption 
of  the  validity  of  the  marriage  resulting 
from  the  solemnization  of  the  marriage 
ceremony  and  the  cohabitation  of  the 
parties  under  the  belief  that  they  were 
legally  married,  and  of  establishing  that  the 
former  spouse  was  living  at  the  time  the 
second  marriage  was  contracted.  Murchison 
V.  Green,  11:  702,  57  S.  E.  709,  128  Ga.  339. 

143.  One  attempting  to  set  aside  a  mar- 
riage settlement  alleged  to  have  been  se- 
cured by  a  woman's  falsely  representing 
herself  to  be  single,  when  she  was  in  fact 
married,  has  the  burden  of  showing  the 
existence,  at  the  time  of  the  second  mar- 
riage, of  a  valid  subsisting  prior  one. 
Turner  v.  Williams,  24:  1199,  89  N.  E.  110, 
202  Mass.  500. 

144.  The  presumption  of  removal  of  prior 
obstacles  in  support  of  a  marriage  does  not 
prevail  where  it  is  attacked  and  evidence 
is  introduced  on  either  side,  but  the  ques- 
tion then  becomes  one  of  fact,  to  be  decided 
in  the  light  of  all  the  circumstances  and  the 
reasonable  inferences  from  them.  Turner  v. 
Williams,  24:  1199,  89  N.  E.  110,  202  Mass. 
500. 

145.  The  presumption  of  the  validity  of  a 
marriage  arising  from  the  performance  of 
a  ceremony  and  cohabitation  will  prevail 
over  the  presumption  of  the  continued  life 
of  the  former  spouse  of  one  of  the  parties, 
if  neither  presumption  is  aided  by  proof  of 
facts  or  circumstances  corroborating  it. 
Murchison  v.  Green,  11:  702,  57  S.  E.  709, 
128  Ga.  339. 

146.  The  presumptions  flowing  from  a 
marriage  ceremony  overcome  that  of  the 
continuance  of  life,  so  that  if  a  woman 
whose  husband  has  been  absent  and  unheard 
from  for  four  years  enters  into  a  marriage 
with  another  person,  and  has  children  by 
him,  the  presumptions  of  absence  of  guilt 
and  legitimacy  of  the  children  will  over- 
come that  of  the  continued  life  of  the  form- 
er husband,  and  render  the  marriage  valid. 
Vreeland  v.  Vreeland  (N.  J.  Err.  &  App.) 
34:  940,  79  Atl.  336,  78  N.  J.  Eq.  256. 

(Annotated) 

147.  The  burden  of  showing  that  cohab- 
itation between  a  man  and  a  woman,  which 
was  illicit  in  its  inception,  became  there- 
after lawful  by  reason  of  a  contract  of  mar- 
riage entered  into  between  them,  rests  upon 
the  party  asserting  the  fact  of  such  agree- 
ment. Drawdv  v.  Hesters,  15:  190,  60  S.  E. 
451,  130  Ga.  161. 

148.  If  cohabitation  between  a  man  and  a 
woman  is  shown  to  have  been  illicit  in  its 
inception,  the  illicit  relation  will  be  pre- 
sumed to  have  continued  throughout  the 
period  of  cohabitation  in  the  absence  of 
proof  to  the  contrary;  but  such  presump- 
tion may  be  overcome  by  direct  or  circum- 
stantial evidenc(!  affirmatively  showing  that. 


1086 


EVIDENCE,  II.  e,  3. 


pending  the  illicit  relation,  the  parties  en- 
tered into  an  agreement  to  become  husband 
and  wife,  and  thereafter  continued  the  co- 
habitation in  the  new  relation.  Drawdy  v. 
Hesters,  15:  igo,  60  S.  E.  451,  130  Ga.  161. 
Identity. 
Sufficiency  of  proof  of,  see  infra,  2217. 

149.  The  identity  of  the  several  sepa- 
rate sheets  of  a  will  offered  for  probate  is 
prima  facie  established  where  each  sheet 
but  the  last,  which  bears  the  signature  of 
the  testator,  ends  with  an  incomplete  sen- 
tence, and  such  parts  when  properly  ar- ' 
ranged  effect  a  complete  subject-matter. 
Kirby  v.  Sellards,  28:  270,  108  Pac.  73,  82 
Kan.  291. 

Divorce. 

Sufficiency  of  proof  of,  see  infra,  2205-2209. 

150.  Divorce  from  a  former  spouse  will 
not  be  presumed  from  a  marriage  contract 
if  no  record  thereof  can  be  found  in  the 
counties  where  it  should  have  been  granted. 
Smith  V.  Fuller,  16:  98,  115  N.  W.  912, 
138   Iowa,   91.  (Annotated) 

151.  Where  a  man  leaves  the  state  to 
secure  a  divorce  and,  upon  returning,  an- 
nounces that  it  has  been  secured,  upon 
which  information  both  parties  act,  and 
marry  other  partners,  the  former  wife,  to 
secure  an  interest  in  his  property  upon  his 
death,  must  overcome  the  presumption  that 
the  divorce  was  in  fact  secured.  Shepard 
V.  Carter,  38:  568,  119  Pac.  533,  86  Kan.  125. 

-     3.  Death;  survivorship;  suicide. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Death. 

Burden  of  proving  cause  of  death  of  in- 
sured, see  supra,  113,  114. 

Presumption  from  marriage  of  one  "Spouse 
as  to  death  of  other,  see  supra,  145,  146. 

A»  to  death  of  former  spouse,  see  infra, 
297. 

As  to  cause  of  death,  see  infra,  327,  329. 

Sufficiency  of  proof  of,  see  infra,  2213-2215. 

Instruction  as  to  presumption  of  death,  see 
Trial,  1022, 

152.  The  state  must,  in  a  prosecution 
for  bigamy,  prove  that  the  first  spouse  was 
alive  when  the  second  marriage  was  con- 
tracted. Dunlap  V.  State,  41:  1061,  150  S. 
W.  86,  126  Tenn.  415. 

153.  Proof  of  diligent  search  and  in- 
quiry is  not  required  to  establish  the  pre- 
sumption of  death  when  a  person  has  ab- 
sented himself  from  his  home  or  place  of 
residence  for  seven  years.  Miller  v.  Sover- 
eign Camp  Woodmen  of  the  World,  28:  178, 
122  N.  W.  1126,  140  Wis.  505. 

(Annotated) 

154.  The  relatives  of  one  who  disap- 
peared without  explanation,  and  has  re- 
mained absent  from  home  for  more  than 
seven  years,  are  not  bound  to  follow  up 
intelligence  of  a  tangible  and  definite  char- 
acter as  to  his  whereabouts  to  avoid  its 
rebutting  the  presumption  of  death,  if  the 
source  from  which  it  comes  is  so  corrupt 
and  unreliable  as  to  destroy  its  value.  Ken- 
Digest  1-52  L.R.A.(N.S.) 


nedy  v.  Modern  Woodmen  of  America,  28: 
181,  90  N.  E.  1084,  243  111.  560. 

155.  Mere  failure  of  the  relatives  of  one 
who  disappeared  without  explanation,  and 
remained  absent  from  home  for  more  than 
seven  years,  to  follow  up  rumors  that  he 
had  been  seen  in  difi'erent  places,  and  in- 
stitute diligent  inquiry  in  such  places  for 
him,  is  not  sufficient  to  overcome  the  pre- 
sumption of  death  arising  from  such  ab- 
sence. Kennedy  v.  Modern  Woodmen  of 
America.  28:  181,  90  X.  E.  1084,  243  111.  .500. 

156.  To  overcome  the  presumption  that  a 
person  once  shown  to  have  been  alive  con- 
tinues to  live  by  tlie  presumption  of  death 
arising  from  seven  years'  unexplained  ab- 
setiee  from  home  or  place  of  residence,  there 
must  be  a  lack  of  information  concerning 
him  on  the  part  of  those  likely  to  hear  from 
him  after  diligent  inquiry;  which  should  ex- 
tend to  all  those  places  wliere  information 
is  likely  to  be  obtained  and  to  all  persons 
who,  in  the  ordinary  course  of  events,  would 
be  likely  to  receive  tidings  if  he  were  alive, 
and  should  exhaust  all  patent  sources  of  in- 
formation and  all  others  sugge;  ted  by  the 
circumstances.  Modern  Woodmen  v.  Ger- 
dom,  2:  809,  82  Pac.  1100,  72  Kan.  391. 

(Annotated) 
Snicide. 

157.  The  presumption  is  against  suicide, 
in  an  action  brought  to  recover  the  amount 
alleged  to  be  due  on  a  mutual  benefit  cer- 
tificate. Lindahl  v.  Supreme  Court  I.  O.  of 
F.  8:  916,  110  N.  W.  358,  100  Minn.  87. 

158.  In  the  absence  of  anything  to  show 
that  one  found  dead  was  not  in  his  rigiit 
mind,  the  jury  may  act  on  the  presumption 
that  he  did  not  commit  suicide.  Tackmun 
V.  Brotherhood  of  A.  Y.  8:  974,  106  N.  W. 
.350,  132  Iowa,  64. 

159.  Where  an  insured  has  suffered  an  in- 
jury which  caused  his  death,  and  there  is 
nothing  to  show  whether  it  was  accidental 
or  self-inflicted,  the  presumption,  in  an  ac- 
tion on  an  accident  policy  on  his  life,  is 
that  it  was  accidental.  Wilkinson  v.  ^tna 
L.  Ins.  Co.  25:  1256,  88  N.  E.  550.  240  111. 
205. 

160.  In  an  action  to  recover  the  amount 
of  a  benefit  certificate  issued  by  a  benevolent 
association,  if  the  known  facts  are  consist- 
ent with  the  theory  of  natural  or  accidental 
death,  the  presumption  which  the  law  raises 
from  the  ordinary  motives  and  principles  of 
human  conduct  requires  a  finding  against 
suicide.  Lindahl  v.  Supreme  Court  I.  O. 
of  F.  8:916,  110  N.  W.  358,  100  Minn.  87. 

161.  In  an  action  to  recover  the  amount 
of  a  benefit  certificate  issued  by  a  benevolent 
association,  the  burden  of  proving  the  de- 
fense that  the  deceased  committed  suicidu 
is  upon  the  defendant  association.  Lindahl 
V.  Supreme  Court  I.  0.  of  F.  8:  916,  110  N. 
W.  358,  100  Minn.  87. 

162.  In  case  of  the  defense  of  death  by 
suicide  being  interposed  in  an  action  on  a 
life  insurance  policy,  the  burden  of  proof  is 
on  the  defendant  to  establish  such  defense. 
Cady  V.  Fidelity  &  C.  Co.  17:  260,  113  N.  W. 
967,  134  Wis.  322. 

163.  In  suppoi;t  of  the  theory  that  inju- 


EVIDENCE,  II.  e,  4. 


1087 


rie»  to  one  found  unconscious  in  a  burning 
building,  whither  he  had  gone  to  work,  in 
a  cheerful  frame  of  mind,  were  not  self-in- 
flicted, the  presumption  may  be  invoked 
that  men  in  circumstances  of  the  injured 
person  do  not  take  their  own  lives.  Wilkin- 
son V.  ^Etna  L.  Ins.  Co.  25:  1256,  88  N.  E. 
550,  240  111.  205. 

1G4.  In  an  action  upon  a  policy  of  insur- 
ance upon  the  life  of  one  whose  death  oc- 
curred under  such  circumstances  that  it 
may  or  may  not  have  been  caused  by  sui- 
cide, the  presumption  is  against  suicide, 
and  to  defeat  a  recovery  the  insurer  must 
show  that  suicide  was  the  cause  of  death. 
Krogh  V.  Modern  Brotherhood  of  America, 
45:  404,  141  N.  W.  276,  153  Wis.  397. 

165.  If  circumstantial  evidence  is  relied 
upon  to  prove  suicide,  in  an  action  to  re- 
cover the  amount  of  a  benefit  certificate  is- 
sued by  a  benevolent  association,  the  de- 
fendant association  must  establish  facts 
which  exclude  anj'  reasonable  hypothesis  ot 
natural  or  accidental  death.  Lindahl  v. 
Supreme  Court  T.  0.  of  F.  8:  916,  110  N.  W. 
358,  100  Minn.  87. 

4.  Assent;  authority;  license. 

(See  also   same   heading  in  Digest  L.R.A. 
1-10.) 

Assent. 

See  also  infra,  203. 

166.  Consent  by  a  patient  to  the  per- 
formance of  a  surgical  operation  may  be 
implied  from  circumstances.  Mohr  v.  Wil- 
liams, i:  439,  104  N.  W.  12,  95  Minn.  261. 

167.  The  carrier  has  the  burden  of  show- 
ing that  a  shipper  assented  to  special  condi- 
tions in  the  bill  of  lading,  limiting  the  lia- 
bility of  the  carrier  for  injury  occurring  be- 
yond its  own  line  and  requiring  claims  to 
be  presented  within  a  specified  time.  Wa- 
bash R.  Co.  V.  Thomas,  7:  1041,  78  N.  E.  777, 
222  111.  337. 

16S.  Acquiescence  by  a  property  owner  in 
the  act  of  his  son  in  signing  his  name  to  a 
petition  for  the  opening  of  a  road  through 
the  property  will  be  presumed  from  the 
facts  that  he  knew  what  was  done,  and  did 
not  repudiate  the  opening  of  the  road,  al- 
though he  lived  more  than  six  months  after 
the  order  of  the  court  making  the  road  pub- 
lic propertv.  McKinney  v.  Pennsylvania  R. 
Co.  21:  ioo"2,  70  Atl.  946,  222  Pa.  48. 

169.  The  right ''to  fill  blanks  in  written 
instruments  after  execution  and  delivery 
is  based  upon  an  assumption  of  consent,  in 
the  absence  of  specific  instructions;  and  the 
leaving  of  such  blanks  is  considered  to  im- 
ply authority  to  fill  them,  and  creates  an 
agency  in  the  receiver  to  do  so  in  the  way 
contemplated  bv  the  maker.  Monttioraery 
V.  Dresher,  38:  423,  134  N.  W.  251,  90  Neb. 
632.  (Annotated) 

170.  WHiere  a  boiler-room  has  been  main- 
tained under  a  public  alley  for  more  than 
fifteen  years  under  authority  of  a  mu- 
nicipal ordinance  and  is  safely  and  suffi- 
ciently covered,  it  will  be  presumed  that  the 
ordinance  was  complied  with  and  that  the 
Digest  1-52  I,.R.A.(N.S.) 


work  was  done  with  the  approval  of  the  mu- 
nicipality.     Tiernan    v.    l^incoln,    32:  1034, 
130  S.  W.  280,  88  Neb.  602. 
Authority. 

Official  authority,  see  infra,  11.  i. 
Presumption  as  to  authority  to  locate  build- 
ing on  land,  see  infra,  629. 
Sufficiency  of  evidence,  see  infra,  2226,  2227. 
See  also  supra,  169. 

171.  The  authority  of  an  agent  to  do  cer- 
tain acts  on  behalf  of  his  principal  may  be 
inferred  from  the  continuance  of  the  acts 
themselves  over  such  a  period  of  time,  and 
the  doing  of  them  in  such  a  manner,  that 
the  principal  would  naturally  have  become 
cognizant  of  them  and  would  have  forbid- 
den them  if  unauthorized.  Dierkes  v.  Haux- 
hurst  Land  Co.  (N.  J.  Err.  &  App.)  34: 
693,  79  Atl.  361,  80  N.  J.  L.  369. 

172.  To  avoid  the  opening  of  a  judgment 
for  lack  of  notice  of  pendency  of  the  ac- 
tion, on  the  ground  that  notice  was  given 
to  defendant's  agent,  plaintiff  must  es- 
tablish the  authority  of  the  agent  to  repre- 
sent the  principal  with  respect  to  the  sub- 
ject-matter of  the  action,  by  clear  and 
satisfactory  proof.  Dunlap  v.  Gibson, 
31:  1071,  112  Pac.  598,  83  Kan.  757. 

173.  The  burden  of  proving  authority  in 
an  agent  to  indorse  a  check  of  the  principal 
rests  upon  the  person  asserting  the  existence 
of  such  authority.  Dispatch  Printing  Coi 
v.  National  Bank  of  Commerce,  50:  74,  124 
N.   W.   236,   109   Minn.   440. 

174.  One  seeking  to  hold  a  merchant  up- 
on a  contract  made  by  a  traveling  salesman 
has  the  burden  of  showing  authority  on  bis 
part  to  bind  his  employer.  Lee  v.  Vaughan 
Seed  Store,  37:  352,  141  S.  W.  496,  101  Ark. 
68. 

175.  A  purchaser  of  real  estate  who 
charges  employment  by  botli  parlies  to  the 
contract  in  defense  of  his  agreement  to  pay 
broker's  commissions  is  bound  to  show  that 
the  broker  was  vested  with  discretionary 
powers,  where  the  broker  pleads  that  the 
agency  gave  him  no  discretion,  but  that  he 
was  employed  merely  to  bring  the  parties 
together  and  keep  them  informed  as  to  the 
condition  of  the  property.  McLure  v.  Luke, 
24:  659,  154  Fed.  647,  84  C.  C.  A.  1. 

176.  When  payment  is  jn„de  to  a  person 
not  hiiving  possession  of  the  securities,  prop- 
erly indorsed,  which  evidence  the  debt  on 
which  the  payment  was  intended  to  be  ap- 
plied, the  burden  of  showing  that  such  per- 
son was  authorized  to  receive  payment  for 
the  creditor  rests  upon  the  party  wlio 
makes  the  claim  of  pavment.  Hoffrnaster  v- 
Black,  21:  52,  84  N.  £."423,  78  Ohio  St.  1. 

177.  A  borrower  making  payments  of 
principal  to  an  agent  has  the  burden  of 
showing  that  he  has  either  express  or  ap- 
parent authority  to  receive  such  payments 
for  the  lender.  Campbell  v.  Gowans,  23: 
414,  100  Pac.  397,  35  Utah,  268. 

178.  The  facts  that  an  automobile  was 
owned  by  the  defendant,  and  that  the  same 
was  negligently  operated  by  an  employee, 
do  not  make  a  prima  facie  case  of  liability 
against  the  owner,  unless  it  appears  that 
the   employee   was   driving  the   automobile 


1088 


EVIDENCE,  II.  e,  5. 


with  authority,  express  or  implied,  of  the 
owner.  White  Oak  Coal  Co.  v.  Rivoux,  46: 
1091,  102  N.  E.  302,  88  Ohio  St.  18. 

(Annotated) 

179.  Authority  of  an  agent  who  has  been 
installed  in  a  liouse  to  occupy  and  report 
auytJiing  occurring  in  reference  to  it,  to  ex- 
pel intruders,  so  as  to  render  the  principal 
liable  for  injuries  to  a  trespasser  upon 
whom  the  agent  set  a  dog,  may  be  inferred 
trom  the  fact  that,  for  a  series  of  years 
during  which  the  agent  lived  on  the  prop- 
erty, he  habitually  expelled  trespassers  from 
it.  Dierkes  v.  Hauxhurst  Land  Co.  (N.  J. 
Err.  &  App.)  34:  693,  79  Atl.  361,  80  N.  J. 
L.    369.  (Annotated) 

—  Of  attorney. 

180.  The  legal  presumption  is  that  an  at- 
torney has  authority  to  appear  for  the  per- 
son for  whom  he  assumes  to  act.  Bacon  v. 
Mitchell,  4:  244,  106  N.  W.  129, 14  N.  D.  454. 

—  Of  corporate  officers  or  agents. 

181.  Prima  facie  evidence  that  a  contract 
of  a  corporation  was  executed  under  prop- 
er authority  is  accorded  by  the  fact  that  it 
is  signed  by  the  proper  officers  and  has  the 
corporate  seal  attached.  J.  S.  Potts  Drug 
Co.  V.  Benedict,  25:  609,  104  Pac.  432,  156 
Cal.  322. 

182.  There  being  no  presumption  that  a 
director  and  vice  president  of  a  bank  has 
authority  to  bind  the  institution  by  his  ad- 
mission as  to  the  manner  in  which  a  cer- 
tificate of  stock  was  obtained,  his  authority 
must  be  shown,  to  make  evidence  of  the  ad- 
mission admissible  against  the  bank.  West- 
minster Nat.  Bank  v.  New  England  Electri- 
cal Works,  3:  551,  62  Atl.  971,  73  N.  H.  465. 

183.  Where  the  authority  of  a  claim 
agent  of  a  railroad  company,  to  make  a 
contract  embracing  unusual  stipulations,  is 
denied  under  oath,  it  devolves  on  the  oppos- 
ing party  to  prove  that  the  agent  had  such 
authority,  and  neither  evidence  of  the  state- 
ments of  the  agent,  nor  the  fact  that  he 
made  that  particular  contract,  are  suffi- 
cient to  establish  his  authority.  Hornick 
V.  Union  P.  R.  Co.  38:  826,  118  Pac.  60,  85 
Kan.   568. 

184.  A  bookkeeper  or  cashier  employed 
in  the  office  of  a  company  is  not  pre- 
sumed, from  that-  fact  alone,  to  have  the 
implied  authority  to  use  or  operate  an 
automobile  purchased  and  owned  by  the 
company  for  the  use  and  purposes  of  a 
traveling  salesman.  White  Oak  Coal  Co. 
V.  Rivoux,  46:  1091,  102  N.  E.  302,  88  Ohio 
St.   18. 

185.  The  burden  of  showing  authority  on 
the  part  of  a  conductor  of  a  freight  train 
to  employ  an  assistant  is  upon  one  asserting 
such  authority,  and  the  railroad  company 
has  not  the  burden  of  disproving  it.  Vassor 
V.  Atlantic  Coast  Line  R.  Co.  7:  950,  54  S. 
E.  849.  142  N.  C.  68. 

186.  Implied  authority  on  the  part  of  a 
station  agent  to  direct  the  kicking  of  ice 
designed  for  the  use  of  section  men,  from 
a  rapidly  moving  train,  so  as  to  render 
the  railroad  company  liable  for  injuries 
caused  to  an  employee  by  that  method  of 
delivery  can  not  be  presumed.  Illinois  C. 
Digest  1-52  L.R.A.(N.S.) 


R.  Co.  V.  Hart,  52:  11 17,  176  Fed.  245,  100 

C.  C.  A.  49. 

Ratification. 

187.  The  burden  of  proving  ratification 
rests  on  the  one  claiming  under  a  voidable 
contract  with  an  infant.  International 
Text-Book  Co.  v.  Connelly,  42:  1115,  99  N. 
E.  722,  206  N.  Y.  188. 

188.  A  ratification  by  a  common  carrier 
of  an  act  of  its  employee  in  assaulting  a 
passenger  cannot  be  inferred  from  its  fail- 
ure to  discharge  him  after  his  report  of  the 
incident.  Voves  v.  Great  Northern  R.  Co. 
48:  30,  143  N.  W.  760,  26  N.  D.  110. 

5.  Knowledge;    notice;    sanity;    capac- 
ity; belief;  intent. 

(See  also   same  heading   i»  Digest  LJR.A. 

1-10.) 
Knevrledge;  notice. 

Burden  of  proving  grand  jury's  lack  of 
knowledge  as  to  facts  omitted  from  in- 
dictment, see  supra,  94. 

Sufficiency  of  evidence  of,  see  infra,  2179, 
2218,  2219. 

As  to  viciousness  of  animal,  see  Animals, 
18. 

As  to  contagious  disease  of  animals,  see 
Pleadiing,  282. 

Of  drawee's  knowledge  of  drawer's  signa- 
ture, see  Banks,  121,  122. 

Of  purchaser  of  negotiable  paper  as  to 
rights  of  parties,  see  Bills  and  Notes, 
184. 

Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  621. 

Eflfect  of  presumption  imputing  to  principal 
knowledge  of  agent  on  his  standing  in 
equity,  see  Eqitity,  142. 

Presumption  of  knowledge  of  defects  in  tax 
proceedings  by  purchaser,  see  Proxi- 
mate Cause,  23. 

Of  testator's  knowledge  of  rules  of  law,  see 
Wills,  138. 

Of  defect  in  highway,  see  Tbial,  211. 

See  also  infra,  277,  278,  428,  453. 

189.  Notice  to  one  whose  name  appears 
on  a  petition  to  lay  out  a  public  highway 
will  be  presumed  from  a  report  by  the 
viewers  that  they  met  for  the  discharge  of 
their  duties,  "pursuant  to  legal  notice."  Mc- 
Kinney  v.  Pennsylvania  R.  Co.  21:  1002,  70 
Atl.  946,  222  Pa.  48. 

190  A  tenant  in  an  apartment  house  is 
not,  by  reason  of  her  occupancy  of  the  prem- 
ises for  a  year  prior  to  a  fire  therein,  con- 
clusively presumed  to  have  had  knowledge 
that  there  were  no  fire  escapes  provided,  as 
required  by  law,  and  to  have  waived  the 
erection  thereof.  Cittadino  v.  Shackter  (N. 
J.  Err.  &  App.)  43:  80,  85  Atl.  174,  83  N.  J. 
L.  593. 

191.  In  a  suit  to  enjoin  interference  with 
an  easement  which  it  is  claimed  arose  by 
virtue  of  an  executed  parol  contract  entered 
into  between  the  proprietors  of  mineral 
springs  and  the  owner  of  a  hotel  situated  on 
adjacent  lands,  whereby  it  was  agreed  that, 
in  consideration  of  the  erection  of  the  hotel, 
the  guests  and  servants  should  have  forever 


EVIDENCE,  II.  e,  5. 


1089 


the  free  use  of  the  waters  of  the  springs  for 
drinking  purposes,  knowledge  by  defendant, 
who  was  a  subsequent  purchaser  of  the 
springs,  to  the  efl'ect  that  the  guests  and 
servants  of  the  hotel  had  for  years  enjoyed 
the  privilege  in  common  with  the  public, 
will  not  raise  a  presumption  that  defendant 
had  notice  of  any  special  right  of  plaintiff 
in  the  use  of  the  waters.  Jobling  v.  Tuttle, 
9:  960,  89  Pac.  699,  75  Kan.  351. 

192.  In  the  absence  of  evidence  to  the  con- 
trary, a  testator  will  be  presumed  to  be  ac- 
quainted with  the  contents  of  a  will,  where 
it  was  prepared  at  his  direction,  left  with 
him  several  hours  before  it  was  executed, 
*nd  signed  in  the  presence  of  attesting  wit- 
nesses, who  were  present  at  his  request  for 
that  purpose.  Re  Shapter,  6:  575,  85  Pac. 
688,  35  Colo.  578. 

193.  For  the  purpose  of  charging  a  tele- 
graph operator  with  libel  for  transmitting 
a  message  stating  that  a  text-book  commit- 
tee had  sold  out,  it  cannot  be  presumed 
that  he  knew  they  were  in  session  from  the 
fact  that  they  had  inserted  in  a  newspaper 
which  came  into  his  possession  a  notice  ad- 
vertising  for   bids   for  books.     Grisham   v. 

,  Western  U.   Teleg.  Co.   37:  861,  142   S.   W. 
271,  238  Mo.  480. 

194.  A  wife  seeking  to  establish  her  com- 
munity rights  against  one  who  purchased 
from  her  husband's  grantee,  who  was  a 
purchaser  for  value  of  a  clear  record  title, 
has  the  burden  of  showing  that  defendants 
Had  notice  of  her  equity.  Daly  v.  Rizzutto, 
29:  467,  109   Pac.  276,  59  Wash.   62. 

195.  In  an  action  to  foreclose  a  mechan- 
ics' lien,  where  the  defendant  seeks  to  de- 
feat the  plaintiff's  right  of  recovery  by 
showing  that  the  material  was  furnished  on 
two  separate  and  distinct  contracts,  and 
that  the  lien  therefor  was  not  filed  in 
time  to  secure  the  claim  for  the  material 
furnished  on  the  first  contract,  the  bur- 
den of  proof  is  on  the  defendant  to  show 
either  that  the  plaintiff  had  actual  no- 
tice that  the  material  was  furnished  and 
used  on  two  separate  contracts,  or  else  to 
show  such  circumstances  as  would  impute 
to  plaintiff  constructive  notice,  and  put 
him  on  his  inquiry  to  ascertain  if  two  or 
more  contracts  did  in  fact  exist.  Valley 
Lumber  &  Mfg.  Co.  v.  Driessel,  15:  299,  93 
Pac.  765,  13  Idaho,  662. 

196.  Under  a  statute  providing  that 
deeds  not  recorded  shall  be  adjudged  void 
as  to  all  "subsequent  purchasers  without 
notice"  whose  deeds  shall  be  first  recorded, 
the  burden  of  proof  of  lack  of  notice  of  an 
unrecorded  deed  of  land  under  which  title 
is  claimed  is  upon  the  party  who  claims 
that  he  is  a  subsequent  purchaser  without 
notice,  and  the  holder  of  a  deed  first  re- 
corded. Dundee  Realty  Co.  v.  Leavitt,  30: 
389,  127  N.  W.  1057,  87  Neb.  711. 

197.  The  burden  of  proof  is  upon  the  in- 
dorsee of  a  promissory  note  payable  to 
order  who  claims  to  be  a  bona  fide  purchaser 
thereof  and  who  has  conceded  that  the  note 
was  fraudulently  obtained  from  the  maker, 
to  establish  that  he  purchased  the  note 
from  the  payee  for  value  and  had  the 
Digest  1-52  I..R.A.(N.S,) 


same  indorsed  to  him  before  maturity,  in 
due  course  of  business  and  without  notice. 
Cochran  v.  Stein,  41:  391,  136  N.  W.  1037, 
118  Minn.  323. 

198.  Under  the  negotiable  instruments 
law,  the  holder  of  a  note  negotiated  in  vio- 
lation of  the  payee's  agreement  not  to  do  so 
until  the  happening  of  a  certain  event  has 
the  burden  of  showing  that  he  or  someone 
through  whom  he  claims  acquired  the  prop- 
erty without  notice  of  the  defect.  Mc- 
Knight  V.  Parsons,  22:  718,  113  N.  W.  858, 
136  Iowa,  390.  (Annotated) 

—  Of  agent. 

199.  Where  an  insured  relies  upon  a 
waiver  by  an  agent  of  a  stipulation  in  an 
insurance  policy  against  coinsurance,  the 
burden  of  proof  rests  upon  him  to  show 
that  the  agent  was  advised  and  had  knowl- 
edge of  such  insurance.  Western  Nat.  Ins. 
Co.  V.  Marsh,  42:  991,  125  Pac,  1094,  34  Okla. 
414. 

—  Of  servant. 

200.  The  burden  of  showing  knowledge 
on  the  part  of  an  employee,  of  a  sale  and 
transfer  of  a  business,  is  upon  the  master. 
Benson  v.  Lehigh  Valley  Coal  Co.  50:  170, 
144  N.  W.  774,  124  Minn.  222. 

201.  The  burden  of  showing  lack  of  knowl- 
edge or  information  on  the  part  of  a  mine 
employee  killed  by  the  flooding  of  the  mine, 
of  conditions  in  an  adjoining  mine  which 
were  likely  to  result  in  such  flooding,  does 
not  rest  upon  one  seeking  to  recover  for  his 
death,  but  the  mine  owner  has  the  burden 
of  showing  such  knowledge;  and  therefore 
the  court  cannot  direct  a  verdict  for  defend- 
ant merely  because  the  evidence  tending  to 
show  absence  of  knowledge  is  not  conclusive. 
Williams  v.  Sleepy  Hollow  Min.  Co.  7:  1170, 
86  Pac.  337,  37  Colo.  62. 

202.  One  employed  in  making  enamel, 
which  requires  the  drawing  of  the  molten 
enamel  from  the  melting  pot  into  water,  is 
not  presumed,  as  matter  of  law,  to  have 
the  scientific  knowledge  that  the  use  of  too 
small  a  quantity  of  water  will  be  likely  to 
result  in  an  explosion.  Adams  v.  Grand 
Rapids  Refrigerator  Co.  27:  953,  125  N.  W. 
724,  160  Mich.  590. 

—  Of  parent. 

203.  Merely  showing  that  children  af- 
fected with  a  contagious  disease  were 
abroad  in  violation  of  a  quarantine  order 
does  not  warrant  conviction  of  their  mother 
for  permitting  such  violation,  since  there 
is  no  presumption  that  they  acted  with 
her  knowledge  or  consent.  State  v.  Racs- 
kowski,  45:  580,  86  Atl.  606,  86  Conn.  677. 

(Annotated) 

204.  There  is  no  conclusive  presumption 
that  a  mother  knew  that  her  son,  in  invest- 
ing her  money  for  her  without  compensa- 
tion, was  securing  compensation  for  his 
services  from  the  borrower.  Franzen  v. 
Hammond,  19:  399,  116  N.  W.  169,  136  Wis. 
239. 

—  Of  shipper. 

205.  A  shipper's  knowledge  that  the  car- 
rier's rate  was  based  upon  the  value  of  the 
shipment  is  to  be  presumed  where  this 
plainly  appears  from  the  terms  of  the  bill 


69 


1090 


EVIDENCE,  II.  e,  6. 


of  lading  and  from  the  published  rates  on 
file  with  the  Interstate  Commerce  Commis- 
sion. Adams  Exp.  Co.  v.  Croninger,  44:  257, 
33  Sup.  Ct.  Rep.  148,  226  U.  S.  491,  57  L. 
ed.  314. 

206.  A  shipper  who,  for  a  number  of 
years,  has  had  possession  of  shipping  re- 
ceipts which  he  filled  out  himself  when  he 
desired  to  make  a  shipment,  will  be  charged 
with  knowledge  of  a  provision  therein  fix- 
ing the  valuation  of  packages  for  purposes 
of  shipment,  in  the  absence  of  any  evidence 
that  he  was  not  acquainted  with  the  con- 
tents of  the  receipts.  Greenwald  v.  Bar- 
rett, 35:  971,  92  N.  E.  218,  199  N.  Y.  170. 
Capacity;  ability. 

Sufficiency  of  evidence  of,  see  infra,  2220- 
2222. 

Sufficiency  of  evidence  to  overcome  presump- 
tion of  capacity,  see  Trial,  243. 

207.  To  maintain  an  action  against  an  ad- 
ministrator on  a  promise  by  his  intestate  to 
pay  a  debt  when  able,  plaintiff  has  the 
burden  of  showing  ability.  Van  Buskirk  v. 
Kuhns,  44:  710,  129  Pac.  587,  164  Cal.  472. 

208.  One  claiming  that  a  promise  to  pay 
a  debt  when  able  was  barred  by  the  statute 
of  limitations  has  the  bui'den  of  showing 
that  the  promisor  became  able  to  pay  long 
enough  before  action  brought  to  permit  the 
running  of  the  statute.  Van  Buskirk  v. 
Kuhns,  44:  710,  129  Pac.  587,  164  Cal.  472. 

209.  An  employer  who  secures  an  unregis- 
tered physician  to  dress  the  wound  of  an 
employee  has  the  burden,  in  case  the  em- 
ployee dies  during  the  operation,  to  show  the 
competency  of  the  physician.  Nations  v. 
Ludington  W.  &  Van  S.  Lumber  Co.  48:531, 
63  So.  257,  133  La.  657. 

210.  Where  an  insurance  policy  contains 
the  provision  as  to  appraising  losses  there- 
under required  by  chapter  421,  Minn.  Laws 
of  1913  (Gen.  St.  1913,  §  3318),  and  an  ap- 
praisal is  initiated  pursuant  thereto,  if  one 
party  refuses  to  recognize  the  appraiser 
appointed  by  the  other,  upon  the  ground 
that  he  is  incompetent,  the  burden  is  upon 
such  party  to  show  that  such  appraiser 
is  in  fact  incompetent.  American  C.  Ins. 
Co.  V.  District  Court,  52:  496,  147  N.  W. 
242,  125  Minn.  374. 

Mental  capacity  of  infant. 

211.  An  infant  employee  fourteen  years 
of  age  or  over  is  presumed  to  possess 
sufficient  mental  capacity  to  comprehend  and 
avoid  the  dangers  of  his  employment. 
Ewing  v.  Lanark  Fuel  Co.  29:  487,  65  S. 
E.  200,  65  W.  Va.  726.  (Annotated) 

212.  An  infant  employee  under  fourteen 
years  of  age  is  not  presumed  to  possess  suf- 
ficient mental  capacity  to  comprehend  and 
avoid  the  dangers  of  his  employment. 
Ewing  v.  Lanark  Fuel  Co.  29:  487,  65  S.  E. 
200,  65  W.  Va.  726. 

213.  When  an  infant  employee  under 
fourteen  years  of  age  relies,  in  an  action 
to  recover  damages  for  personal  injuries 
sustained  in  the  course  of  his  employment, 
upon  insufficient  mental  capacity  to  compre- 
hend the  dangers  thereof,  the  burden  of 
proving  his  capacity  is  iipon  the  defendant. 
^Digest  1-52  I,.R.A.(N.S.) 


Ewing  v.  Lanark  Fuel  Co.  29:487,  65  S.  E. 
200,  65  W.  Va.  726. 

214.  An  infant  employee  fourteen  years 
of  age  or  over,  who,  in  an  action  to  recover 
danuiges  for  personal  injuries  sustained  in 
the  course  of  his  employment,  relies  upon 
insufficient  mental  capacity  to  conipreliend 
and  avoid  the  dangers  thereof,  has  the 
burden  of  proof  as  to  such  issue.  Ewing  v. 
Lanark  Fuel  Co.  29:487,  65  S.  E.  200,  05 
W.  Va.  726.  (Annotated) 

215.  The  burden  of  proving  that  a  minor 
employee  had  greater  than  the  usual  capac- 
ity of  minors  of  the  same  age  rests  upon 
the  emploj'er;  and  the  burden  of  proving 
that  the  minor  had  less  than  sucli  usual 
capacity  rests  upon  the  minor,  or  tlie  one 
seeking  to  recover  damages  on  account  of 
his  death.  Bare  v.  Crane  Creek  Coal  &  C. 
Co.  8:  284,  55  S.  E.  907,  61  W.  Va.  28. 

216.  As  a  general  rule,  after  a  boy  has 
reached  the  age  of  fourteen  years,  courts 
do  not  permit  juries  to  presume  him  in- 
competent for  the  duties  of  a  particular 
employment,  because  of  minority  alone; 
and,  when  over  that  age,  the  burden  of  proof 
is  upon  the  one  alleging  incompetence. 
Wilkinson  v.  Kanawha  &  H.  Coal  &  C.  Co. 
20:  331,  61  S.  E.  875,  64  W.  Va.  93. 

(Annotated) 

217.  There  is  no  conclusive  presumption  of 
law  that  a  twelve-year-old  boy  is  able  to 
foresee  the  danger  of  being  crushed  by  a 
loaded  push  car  which  he  and  other  chil- 
dren are  pushing  along  a  track,  or  that  he 
has  sufficient  wisdom  to  avoid  it;  at  least, 
not  in  the  face  of  an  averment  to  the  con 
trary  in  the  pleadings.  Cahill  v.  E.  B.  &  A. 
L.  Stone  &  Co.  19:  1094,  96  Pac.  84,  153  Cal. 
571. 

—  Testamentary  capacity. 
Sufficiency  of  evidence  of,  see  infra,  2223- 
2225. 

218.  Upon  objection  to  the  probate  of  a 
will  for  lack  of  testamentary  capacity  and 
absence  of  due  execution  and  attestation, 
proponents  have  the  burden  of  establish- 
ing them,  where  the  statute  granting  the 
right  to  make  a  will  excepts  persons  of  un- 
sound mind.  Steinkuehler  v.  Wempner,  15: 
673,  81  N.  E.  482,  169  Ind.  154. 

219.  Upon  a  trial  of  an  issue  arising 
upon  the  propounding  of  a  will  and  a  ca- 
veat thereto,  the  burden  in  tiie  first  in- 
stance is  upon  the  propounder  of  the  al- 
leged will  to  make  out  a  prima  facie  case 
by  showing  the  factum  of  the  will,  and 
that,  at  the  time  of  its  execution,  the  tes- 
tator apparently  had  sufficient  mental  ca- 
pacity to  make  it,  and,  in  making  it,  acted 
freely  and  voluntarily.  Slaughter  v.  Heath, 
27:  I,  57  S.  E.  69,  127  Ca.  747. 

220.  Upon  the  trial  of  an  issue  arising 
upon  the  propounding  of  a  will  and  a 
caveat  thereto,  the  burden  shifts  to  the 
caveator  when  the  propounder  of  the  al- 
leged will  has  made  out  a  prima  facie  case 
by  showing  the  factum  of  the  will,  and 
that,  at  the  time  of  its  execution,  the  tes- 
tator apparently  had  sufficient  mental  ca- 
pacity to  make  it,  and  that  in  making  it  he 


EVIDENCE,  II.  e,  5. 


1001 


acted  freely  and  voluntarily.     Slaughter  v. 

Heath,  27:  i,  57   S.   E.  69,  127   Ga.  Ul. 

Sanity  generally. 

Validity  of  statute  as  to,  see  Constitution- 
al Law,  624. 

Sanity  of  accused. 

Presumption  of  continuance  of  insanity,  see 
infra,  319. 

Sufficiency  of  evidence,  see  infra,  2358-2361. 

See  also  Appeal  and  Error,  930. 

221.  One  on  trial  for  murder  need  not 
produce  evidence  to  raise  a  doubt  as  to  his 
sanity,  to  be  acquitted  on  the  ground  of  in- 
sanity, if  the  evidence  as  a  whole  raises 
such  doubt.  Duthey  v.  State,  10:  1032,  111 
N.  W.  222,  131  Wis.  178. 

222.  The  state,  in  a  prosecution  for  homi- 
cide, may  rely  on  the  presumption  of  sanity 
of  the  defendant,  but  when  such  defendant 
produces  sufficient  evidence  to  raise  a 
reasonable  dox-bt  of  his  sanity,  the  burden 
of  establishing  it  is  imposed  on  the  state, 
and  if  the  jury  have  a  reasonable  doubt  that 
defendant,  at  the  time  of  the  act  charged, 
was  mentally  competent  to  distinguish  be- 
tween right  and  wrong,  or  to  understand  the 
nature  of  the  act  he  was  committing,  he 
must  be  acquitted.  Adair  v.  State,  44:  119, 
118  Pac.  416,  6  Okla.  Crim.  Rep.  284. 

(Annotated) 

223.  Under  a  statute  providing  that  upon 
a  trial  for  murder,  the  commission  of  a 
homicide  by  the  defendant  being  proven, 
ttie  burden  of  proving  circumstances  of 
mitigation  or  that  justify  or  excuse  it  de- 
volves upon  him,  unless  the  proof  on  the 
part  of  the  prosecution  tends  to  show  that 
the  crime  committed  amounted  only  to 
manslaughter,  or  that  the  defendant  was 
justifiable  or  excusable, — where  the  defense 
sought  to  be  established  is  insanity,  the  le- 
gal presumption  of  sanity  must  be  over- 
come by  evidence  which  is  sufficient  to  raise 
a  reasonable  doubt  of  the  defendant's  sanity 
at  the  time  of  the  commission  of  a  homi- 
cide, and  when  that  is  done,  the  presump- 
tion of  sanity  ceases,  and  the  burden  of 
establishing  the  sanity  of  the  defendant  is 
upon  the  state,  which  is  then  required  to 
prove  his  sanity  as  an  element  necessary  to 
constitute  the  crime,  and  if,  upon  the  con- 
sideration of  all  the  evidence,  together  with 
all  the  legal  presumptions  applicable  to  the 
case,  the  jury  has  a  reasonable  doubt  as  to 
whether  the  defendant  was  mentally  com- 
petent to  distinguish  between  right  and 
wrong  or  to  understand  the  nature  of  the 
act  he  was  committing,  he  should  be  ac- 
quitted. Alberty  v.  State,  52:  248,  140  Pac. 
1025,  10  Okla.  Crim.  Rep.  616. 

Intent. 

Criminal  intent,  see  infra,  255-257. 

Sufficiency  of  evidence,  see  infra,  2191, 
2228-2235. 

Statute  as  to,  see  Constitutional  Law, 
140-142. 

Written  resignation  as  prima  facie  evidence 
of  intention  to  relinquish  office,  see 
Officers,  48. 

Of  legislature  as  to  construction  of  stat- 
ute, see  Statutes,  290. 

Digest  1-52  L.R.A.(N.S.) 


As  to  intention  of  testator,  see  Wills,  6,  7, 

205. 
See  also  infra,  599. 

224.  No  presiunption  of  intention  to  pre- 
clude the  husband's  estate  by  curtesy  arises 
from  the  mere  fact  of  a  direct  conveyance 
bv  him  to  his  wife.  Depue  v.  Miller,  23: 
775,  64  S.  E.  740,  65  W.  Va.  120. 

225.  The  intention  to  evade  the  local  ex- 
emption laws  is  necessarily  presumed  where 
a  creditor  resorts  to  the  courts  of  another 
state  to  collect  a  debt  from  a  debtor  re- 
siding in  the  same  city  with  himself,  by 
attachment  of  his  wages,  where  the  em- 
ployer also  has  an  office  and  is  doing  busi-  . 
ness  in  the  same  city,  and  the  local  courts 
are  open  and  accessible.  Wierse  v.  Thomas, 
15:  1008,  59  S.  E.  58,  145  N.  C.  261. 

226.  Unless  it  appears  that  the  parties 
to  a  contract  bona  fide  and  actually  in- 
tended to  stipulate  for  liquidated  damages, 
they  will  be  presumed  to  have  intended  a 
penalty  only;  especially  where  the  language 
used  is  susceptible  of  either  construction, 
or  where  actual  damages  might,  without 
seri#us  difficulty,  have  been  estimated  in  ad- 
vance, or  where  the  sum  named  would  be 
recoverable  alike  for  a  partial  or  for  a  total 
breach.  Evans  v.  Moseley,  50:  889,  114  Pac. 
374,  84  Kan.  322. 

227.  The  presumption  of  intention  to  in- 
clude in  a  grant  a  right  of  access  to  a  high- 
way, which  arises  when  the  land  granted 
is  cut  off  from  a  highway  by  remaining 
land  of  the  grantor  or  that  of  strangers,  is 
overcome  where  one  boundary  of  the  land 
granted  is  stated  ty  the  deed  to  be  upon 
other  land  of  the  grantee,  which  has  access 
to  a  highway.  Doten  v.  Bartlett,  32:  1075, 
78  Atl.   456,   107   Me.   351.  (Annotated) 

228.  An  insurer  against  accidental  inju- 
ries who  stipulates  against  liability  for  in- 
tentional injuries  inflicted  by  any  other  per- 
son upon  insured  has  the  burden  of  pleading 
and  proving  that  a  pistol  wound  inflicted 
upon  insured  by  a  burglar  was  intentionally 
inflicted.  Allen  v.  Travelers'  Protective 
Asso.  48:  600,  143  N.  W.  574,  163  Iowa,  217. 

229.  The  rule  that  where  a  person  exe- 
cutes an  instrument  leaving  blank  spaces 
therein  to  be  filled,  and  delivers  it  in  such 
imperfect  condition  to  another  for  use,  will 
be  presumed  to  have  intended,  in  the  ab- 
sence of  anything  to  the  contrary,  to  con- 
fer on  such  other  person  authority  to  com-  ♦" 
plete  the  instrument,  applies  to  instru- 
ments required  by  law  to  be  executed  under 
seal,  and  to  be  witnessed  and  acknowledged 
in  order  to  be  entitled  to  record,  as  well  as 
to  simple  contracts.  Friend  v.  Ward,  i:  891, 
104  N.  W.  997,  120  Wis.  291. 

230.  The  unification  of  power  and  control 
over  the  oil  industry  which  result^  from 
combining  in  the  hands  of  a  holding  com- 
pany the  capital  stock  of  the  various  cor- 
porations trading  in  petroleum  and  its  prod- 
ucts raises  a  presumption  of  an  intent  to 
exclude  others  from  the  trade,  and  thus 
centralize  in  the  combination  a  perpetual 
control  of  the  movement  of  these  commodi- 
ties in  the  channels  of  interstate  and  for- 
eign commerce,  in  violation  of  the  prohibi- 


1092 


EVIDENCE,  II.  e,  6. 


tions  of  tlie  act  of  July  2,  1890,  §§  1,  2, 
against  combinations  in  restraint  of  inter- 
state or  foreign  trade  or  commerce,  or  mo- 
nopolization or  attempt  to  monopolize  any 
part  of  such  trade  or  commerce.  Standard 
Oil  Co.  V.  United  States,  34:  834,  31  Sup.  Ct. 
Rep.  502,  221  U.  S.  1,  55  L.  ed.  619. 

231.  If  a  stockholder  of  a  corporation,  by 
agreement  with  it  or  any  of  its  officers,  sells 
his  stock  to  the  organization  in  exchange 
for  corporate  assets,  knowing,  actually  or 
constructively,  that  the  result  will  be  to 
render  the  corporation  insolvent,  all  parties 
to  the  transaction  contemplating  that  it  will 

.  continue  in  business  and  incur  indebtedness 
as  before,  the  creditors  relying  upon  appear- 
ance of  the  previous  solvent  condition  con- 
tinuing, the  result  to  them  must  be  pre- 
sumed to  have  been  mutually  intended,  sup- 
plying the  element  of  bad  faith  essential  to 
condemn  the  transfer.  Atlanta  &  W.  But- 
ter &  Cheese  Asso.  v.  Smith,  32:  137,  123  N. 
W.  106,  141  Wis.  377. 
—  Of  testator. 

To  dispose  of  entire  property,  see  Wiixs, 
205.  t 

232.  In  construing  a  will,  it  will  be  pre- 
sumed that  the  testator  intended  to  dispose 
of  his  entire  estate,  unless  the  contrary  is 
apparent.  Jones  v.  Hudson,  44:  1182,  141 
N.  W.  141,  93  Neb.  561. 

233.  The  presumption  that  a  testator  who 
destroyed  one  copy  of  a  will  executed  in 
duplicate  did  so  with  the  intention  of  re- 
voking the  will  is  an  inference  of  fact,  and 
not  a  conclusion  of  law.  Managle  v.  Parker, 
24:  180,  71  Atl.  637,  75  N!  H.  139. 

234.  A  payment  of  money  by  a  testator 
to  his  niece  towards  whom  he  does  not  stand 
in  loco  parentis  will  not  be  presumed  to  be 
intended  as  a  satisfaction  of  a  provision 
for  her  in  his  will.  Johnson  v.  McDowell, 
38:  588,  134  N.  W.  419,  154  Iowa,  38. 

^,  (Annotated) 

e.  Malice;    criminal    intent;    probable 
cause. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Malice  generally. 

Validity  of  statute  as  to,  see  Constitution- 
al Law,   620. 

Presumption  of  malice  as  question  for  jury, 
see  Trial,  272. 

Instruction  as  to,  see  Trial,  1084. 

See  also  Malicious  Prosecution,  II. 

235.  Malice  cannot  be  inferred  merely 
from  the  doing  of  an  act  without  that  ordi- 
nary prudence  and  discretion  which  persons 
of  mature  minds  and  sound  judgment  are 
presumed  to  have.  Jenkins  v.  Gilligan,  9: 
1087,  108  N.  W.  237,  131  Iowa,  176. 

(Annotated) 

236.  Malice  may  be  inferred  from  want 
of  probable  cause,  in  an  action  to  recover 
damages  for  malicious  prosecution.  Chica- 
go, R.  I.  &  P.  R.  Co.  V.  Holliday,  39:205, 
120  Pac.  927,  30  Okla.  680. 

237.  Commencing  a  criminal  prosecution 
for  the  purpose  of  compelling  payment  of  a 
Digest  1-52  I..R.A.(N.S.) 


just  debt  is  prima  facie  evidence  of  want 
of  proDable  cause  and  malice,  and  shifts  the 
burden  of  showing  that  it  was  not  so  on 
defendant,  in  an  action  for  malicious  prose- 
cution. Macdonald  v.  Schroeder,  6:  701,  63 
Atl.  1024,  214  Pa.  411. 

238.  Wilfulness  or  malice  in  inflicting 
injury  on  a  trespasser  cannot  be  inferred 
from  the  fact  that  injury  might  reasonably 
have  been  anticipated  from  conditions 
which  the  one  sought  to  be  held  liable  al- 
lowed to  exist.  Hoberg  v.  Collins,  L.  &  Co. 
(N.  J.  Err.  &  App.)  31:  1064,  78  Atl.  106, 
80   N.   J.   L.   425. 

239.  The  presumption  is  that  a  father 
who  is  charged  by  his  son's  wife  with  aliena- 
tion of  her  husband's  affections,  acted  with- 
out malice,  and  with  good  faith,  and  the 
burden  is  on  the  wife  to  show  malice  and 
absence  of  such  motive.  Gross  v.  Gross, 
39:  261,  73  S.  E.  961,  70  W.  Va.  317. 

240.  To  entitle  a  man  to  hold  his  wife's 
father  liable  for  advice  given  to  her  which 
causes  her  to  desert  her  husband,  plaintiff 
has  the  burden  of  showing  that  the  advice 
was  actuated  by  malice,  and  of  overcoming 
the  presumption  that  he  acted  under  the 
influence  of  natural  affection,  and  for  what 
he  believed  to  be  for  the  real  good  of  the 
child.  Multer  v.  Knibbs,  9:  322,  79  N.  E. 
762,  193  Mass.  556.  (Annotated) 
—  From  publication  of  liltel  or  slan- 
der. 

Malice  as  essential  element  of  libel  or  slan- 
der, see  Libel  and  Slander,  74,  85,  86, 
94,  95,  98,  102,  108-111,  159. 

241.  In  an  action  for  libel,  malice  need 
not  be  expressly  proved  where  there  is  evi- 
dence of  acts  from  which  it  may  be  implied. 
Jozsa  v.  Moroney,  27:  1041,  51  So.  908,  125 
La.  813. 

242.  One  claiming  to  have  been  libeled 
by  the  report  of  a  public  officer  has  the 
burden  of  showing  the  falsity  of  the  report 
and  the  malice  of  its  author.  Peterson  v. 
Steenerson,  31:674,  129  N.  W.  147,  113 
Minn.  87. 

243.  Malice  on  the  part  of  a  publisher  of 
statements  selected  from  other  journals, 
that  are  injurious  to  the  reputation  or  char- 
acter of  the  parties  spoken  of,  is  conclusive- 
ly inferred  if  the  communications  are  false. 
Levert  v.  Daily  States  Pub.  Co.  23:  726,  49 
So.  206,  123  La.  594. 

244.  The  publication  of  a  petition  charg- 
ing one  with  being  an  habitual  drunkard, 
in  a  proceeding  for  the  appointment  of  the 
guardian  for  him,  if  made  without  any 
probable  cause  for  believing  it  to  be  true, 
will  warrant  a  conclusion  that  it  was  actu- 
ated by  malice.  Thompson  v.  Rake,  18: 
921,  118  N.  W.  279,  140  Iowa,  232. 

245.  Malicious  intent,  giving  a  right  to 
punitive  damages,  is  presumed  from  the 
publication  of  a  letter  which  is  libelous 
per  se.  Penny Ivania  Iron  Works  Co.  v. 
Henry  Voght  Mach.  Co.  8:  1023,  96  S.  W. 
551,  139  Ky.  497. 

246.  The  jury  may  infer  malice  from  an 
erroneous  claim  made  by  an  employer  upon 
a  surety  on  his  agent's  bond,  together 
with    the    facts    and    circumstances    which 


EVIDENCE,  II.  e,  7. 


1093 


surround  and  characterize  it,  so  as  to  pre- 
vent the  privileged  character  of  the  com- 
munication from  availing  as  a  defense  to 
an  action  for  libel.  Sunley  v.  Metropolitan 
L.  Ins.  Co.  12:  91,  109  N.  W.  463,  132  Iowa, 
123.  (Annotated) 

247.  Failure  of  one  sued  for  libel  in  charg- 
ing a  candidate  for  office  with  unfitness 
therefor  because  of  facts  stated,  to  estab- 
lish a  plea  of  truth  as  a  defense,  cannot  be 
taken  into  consideration  by  the  jury  in  esti- 
mating damages,  as  tending  to  show  malice. 
SchuU  V.  Hopkins,  29:  691,  127  N.  W.  550, 
26  S.  D.  21. 

248.  Malice  on  the  part  of  one  making  a 
privileged  communication  to  another  will 
not  be  inferred  merely  because  he  declined 
to  name  his  informant.  Trimble  v.  Mor- 
rish,  16:  lovj,  116  N.  W.  451,  152  Mich. 
624. 

249.  In  the  absence  of  anything  on  the 
face  of  a  privileged  communication  alleged 
to  be  slanderous,  to  indicate  it,  malice  can- 
not be  inferred  from  the  words  of  the  com- 
munication. Trimble  v.  Morrish,  16:  1017, 
116  N.  W.  451,   152  Mich.  624. 

250.  In  an  action  for  slander,  where  the 
words  complained  of  are  conceded  to  con- 
stitute a  privileged  communication,  the 
burden  is  upon  the  plaintiff  to  show  that 
they  were  uttered  from  an  improper  motive, 
and  not  for  a  reason  that  would  otherwise 
render  them  privileged.  Abraham  v.  Bald- 
win, 10:  1051,  42  So.  591,  52  Fla.  151. 

251.  Although  the  burden  of  showing  the 
privileged  character  of  a  communication 
alleged  to  be  libelous  is  on  the  defendant 
if,  in  the  judgment  of  the  court,  he  haT  sus- 
tained such  burden,  then  plaintiff,  in 
order  to  be  entitled  to  recover,  must  show 
actual  or  express  malice.  Holmes  v.  Roy- 
al Fraternal  Union,  26:  1080,  121  S.  W.  100, 
222  Mo.  556. 

252.  The  publication  by  a  newspaper  of 
a  report  made  by  the  police  in  the  regular 
course  of  police  administration,  that  per- 
sons had  been  poisoned  by  sugar  purchased 
at  plaintiff's  store,  is  not  sufficient  of  it- 
self to  support  an  allegation  of  malice  on 
the  part  of  the  newspaper  publisher  in  a 
libel  action  founded  on  such  publication. 
Morasca  v.  Item  Co.  30:  315,  52  So.  565, 
126  La.  426. 

253.  The  presentation  by  an  employer  to 
the  surety  on  his  agent's  bond  of  a  claim 
in  excess  of  that  reported  due  by  the  officer 
in  charge  of  the  accounting,  followed  by  an 
acknowledgment  that  it  had  not  made  prop- 
er credits  and  had  in  its  hands  sufficient 
unpaid  salary  to  satisfy  its  demands,  will 
justify  an  inference  of  malice  by  the  jury 
so  as  to  render  the  employer  guilty  of  libel. 
Sunley  v.  Metropolitan  L.  Ins.  Co.  la:  91, 
109  N.  W.  463,  132  Iowa,  123. 

254.  In  civil  actions  for  libel,  where  a 
communication  concerning  the  credit  and 
standing  of  a  business  corporation  and  its 
officers,  which  is  sent  by  a  bank  president 
to  whose  bank  the  letter  of  inquiry  is  ad- 
dressed, is  conditionally  privileged,  the  bur- 
den of  proof  is  upon  the  plaintiff  to  show 
malice  or  a  wrongful  purpose  in  publishing 
Digest  1-52  L.R.A.(N.S.) 


it.     Richardson  v.  Gunby,  42:  520,  127  Pac. 
533,   88   Kan.  47. 
Criminal  intent. 

Presumption  and  burden  of  proof  as  to  in- 
tent generally,   see  supra,   224-234. 

Malicious  intent,   see  supra,  241-254. 

Sufficiency  of  exception  to  instructibn  as  to, 
see  Appeal  and  Error,   333. 

255.  An  intent  to  sell  the  liquor  un- 
lawfully is  presumed  when  120  quart  bot- 
tles of  whisky  are  consigned  to  one  address 
in  prohibition  territory.  State  v.  Intoxi- 
cating Liquors,  29:  745,  76  Atl.  265,  106 
Me.  138. 

256.  Where  an  agent  comes  into  posses- 
sion of  funds  belonging  to  his  principal, 
and  converts  them  to  his  own  use,  without 
the  knowledge  or  consent  of  the  principal, 
the  law  implies  a  fraudulent  intent.  State 
V.  Duerksen,  52:  1013,  129  Pac.  881,  8  Okla. 
Crim.  Rep.  601. 

257.  No  presumption  of  the  intent  neces- 
sary to  render  a  homicide  murder  in  the 
first  degree  arises  from  the  use  of  a  deadly 
weapon  directly  against  a  vital  part  of  the 
body,  although  the  jury  may  consider  such 
facts  together  with  all  the  other  facts  in 
the  case,  in  determining  whether  or  not  such 
intent  existed.  Com.  v.  Chapler,  34:  74,  77 
Atl.  1013,  228  Pa.  030.  (Annotated) 
Prvbable  cause. 

See  also  supra,  236,  237;  Malicious  Prose- 
cution,  II. 

258.  When  the  occasion  upon  which  mat- 
ter alleged  to  be  libelous  was  written,  is 
shown  to  have  been  privileged,  the  burden 
is  on  one  seeking  damages  therefor,  to  show 
absence  of  good  faith  and  probable  cause. 
Denver  Public  Warehouse  Co.  v.  HoUoway, 
3:  696,  83  Pac.  131,  34  Colo.  432. 

(Annotated) 

259.  Committal  of  a  defendant  by  a 
magistrate  is  prima  facie,  but  not  con- 
clusive, evidence  of  probable  cause,  in  an 
action  to  recover  damages  for  malicious 
prosecution.  Luke  v.  Hill,  38:  559,  73  S.  E. 
345,  137  Ga.  159. 

260.  The  mere  dismissal  of  a  prosecution 
because  the  prosecuting  officer  fails  to  ap- 
pear is  not  prima  facie  evidence  of  want  of 
probable  cause,  which  will  sustain  an  ac- 
tion for  malicious  prosecution  against  the 
one  who  instituted  the  proceeding.  Smith 
v.  Clark,  26:  953,  106  Pac.  653,  37  Utah, 
116. 

7.  Fraud  or  good  faith,;  reliance  ofi 
representations ;  undue  influence  ; 
duress. 

(See  also  same  heading  im  Digest  LJi.A. 
1-70.) 

Fraud  in  senerikl. 

Burden   of   proving   fraud   in   procuring   of 

marriage,  see  supra,  143. 
Fraudulent  intent,  see  supra,  256. 
Presumption  of  fraud  arising  from  silence 

or  failure  to  testify,  see  infra,  311,  312. 


1094 


EVIDENCE,  II.  e,  7. 


Constitutionality  of  provision  as  to  what 
shall  be  presumptive  evidence  of  fraud, 
see  CoNSTiTUTioNAi,  Law,  140,  141. 

See  also  infra,  536. 

261.  A  statutory  presumption  of  fraud 
which  is  not  intended  to  be  conclusive  may 
be  overthrown  by  evidence  of  good  faith. 
Williams  v.  Fourth  Nat.  Bank,  2:  334,  82 
Pac.  496,  15  Okla.  477. 

262.  In  an  action  to  set  aside  a  convey- 
ance of  property  on  the  ground  of  fraud 
the  burden  of  proof  does  not  shift  to  the 
defendant  upon  a  prima  facie  showing  be- 
ing made,  on  the  part  of  the  plaintiff. 
Boardman  v.  Lorentzen,  52:  476,  145  N.  W. 
750,  155  Wis.  566. 

263.  The  mere  opinion  of  a  buyer  of  land 
that  the  seller,  in  erroneously  pointing  out 
land  as  part  of  that  sold,  was  honestly  mis- 
taken, does  not  relieve  the  seller  from  the 
duty  of  overcoming  the  prima  facie  case  of 
deceit  made  against  him  by  evidence  that 
the  statement  was  false.  Vincent  v.  Cor- 
bitt,  21:  85,  47  So.  641,  94  Miss.  46. 

—  In  contract. 

Presumptive  invalidity  of  contract  as  de- 
fense in  action  to  enforce  it,  see  CoN- 
TBACTS,  777. 
V  264.  One  relying  on  fraud  to  defeat  a 
quitclaim  deed  must  allege  and  prove  it. 
Strong  V.  Whybark,  12:  240,  102  S.  W.  968, 
204  Mo.   341. 

■  265.  A  presumption  that  a  buyer  did  not 
intend  to  pay  for  goods  arises  from  the  fact 
that  his  affairs  were  in  such  a  condition 
that  he  could  have  had  no  reasonable  ex- 
pectation of  paying  therefor.  Gillespie  v. 
J.  C.  Piles  &  Co.  44:  1,  178  Fed.  886,  102  C. 
C.  A.  120. 
Reliance  on  representations  made. 

266.  There  is  no  presumption  of  law  that 
one  who,  when  about  to  purchase  a  mine, 
makes  an  investigation  himself,  and  con- 
sults others  as  to  the  condition  of  the  mine 
or  its  value,  does  not  rely  upon  representa- 
tions made  by  the  seller.  Tooker  v.  Alston, 
16:  818,  159  Fed.  599,  86  C.  C.  A.  425. 

267.  When  a  creditor  proves  the  issuance 
of  stock  to  a  stockholder,  and  that  he  sub- 
sequently trusted  the  corporation,  it  is  pre- 
sumed, until  rebutted  by  evidence,  that  he 
relied  upon  the  subscription  and  the  repre- 
sentation that  the  stock  was  fully  paid. 
Randall  Printing  Co.  v.  Sanitas  Mineral 
Water  Co.  43:  706,  139  N.  W.  606,  120  Minn. 
268. 

Fidnciary  relation. 
See  also  supra,  115,  116. 

268.  Attorneys  who  purchase  from  their 
clients,  and  resell  the  subject-matter  of 
their  employment,  have  the  burden  of  prov- 
ing, when  sued  by  their  clients  for  the 
resulting  profits,  that  the  original  pur- 
chase price  was  fair.  Hamilton  v.  Allen, 
28:  723,  125  N.  W.  610,  86  Neb.  401. 

(Annotated) 

269.  A  conveyance  by  one  to  his  general 
agent  having  control  and  management  of 
all  his  affairs,  and  who  is  his  confidential 
adviser  and  friend,  is  presumed  in  law  to  be 
fraudulent;  and  the  grantee  has  the  burden 
Digest  1-52  I<.R.A.(N.S.) 


of  overcoming  the   presumption.     Smith   v. 
Moore,  7:  684,  55  S.  E.  275,  142  N.  C.  277. 
Fraudulent     conveyances     or     assign- 
ments. 

Intent  to  defraud  creditors  as  taking  place 
of  bad  faith,  see  supra,  231. 

From  retention  of  chattel  by  vendor,  see 
Fraudulent   Conveyances,   44. 

270.  A  judgment  creditor  of  a  legatee, 
who  attempts  to  set  aside  an  assignment  of 
the  legacy  as  in  fraud  of  his  rights,  has 
the  burden  of  showing  the  fraud.  Beaver  v. 
Ross,  20:  65,  118  N.  W.  287,  140  Iowa,  154. 

271.  That  the  consideration  for  a  transfer 
of  corporate  stock  between  persons  not  re- 
lated was  paid  to  the  grantor's  near  rela- 
tive, upon  assignment  thereof,  does  not 
change  the  rule  imposing  on  the  party  as- 
sailing the  transaction  the  burden  of  prov- 
ing it  fraudulent.  Everitt  v.  Farmers'  &  M. 
Bank,  20:  996,  117  N.  W.  401,  82  Neb.   191. 

272.  The  statutory  presumption  of  fraud 
which  arises  from  the  retention  of  a  chattel 
by  the  vendor  may  be  overthrown  by  proof 
by  the  vendee  that  the  sale  was  in  good 
faith  and  without  intent  to  injure,  delay, 
or  defraud  creditors  or  subsequent  purchas- 
ers. Wilson  V.  Walrath,  24:  1127,  115  N. 
W.  203,  103  Minn.  412. 

273.  In  a  creditor's  suit  to  set  aside  a  con- 
veyance by  a  debtor  to  a  near  relative,  al- 
leged to  have  been  made  in  consideration  of 
a  past-due  indebtedness,  the  burden  is  upon 
the  grantee  to  show  that  the  debt  is  genuine, 
that  his  purpose  was  honest,  and  that  he 
acted  in  good  faith  in  obtaining  the  title. 
Flint  V.  Chaloupka,  13:  309,  111  N.  W.  465, 
78  Neb    594. 

Good  faith. 

In  action  for  libel,  see  supra,  258. 

Sufficiency  of  evidence  of  bona  fide  char- 
acter of  holder  of  note,  see  infra, 
2324,    2325. 

See  also  supra,  197,  198,  261. 

274.  The  purchaser  of  a  note  secured 
from  the  maker  by  fraud  has  the  burden  of 
showing  his  good  faith  in  the  transaction. 
Arnd  v.  Aylesworth,  29:638,  123  N.  W. 
1000,   145  Iowa,   185. 

275.  One  seeking  to  hold  a  justice  of  the 
peace  personally  liable  for  issuing  a  war- 
rant for  his  arrest  without  jurisdiction  has 
the  burden  of  showing  absence  of  good  faith 
on  his  part.  Broom  v.  Douglass,  44:  164,  57 
So.  860,  175  Ala.  268. 

276.  The  burden  resting  upon  a  purchaser 
of  real  property  to  establish  by  competent 
evidence  the  good  faith  of  liis  purchase 
does  not  shift  to  the  holder  of  a  prior  un- 
recorded deed,  upon  the  introduction  of  evi- 
dence making  a  prima  facie  case  of  bona 
fides.  Errett  v.  Wheeler,  26:  816,  123  N. 
W.  414,  109  Minn.  157. 

277.  Upon  proof  by  a  purchaser  of  land, 
a  former  deed  to  which  is  unrecorded,  of 
payment  of  a  valuable  consideration  there- 
for, the  presumption  arises  that  he  acted  in 
good  faith  and  without  notice  of  the  riglits 
of  claimants  under  the  unrecorded  deed. 
Conklin  v.  Kruse,  36:  1124,  108  Pac.  856, 
82   Kan.  358.  (Annotated) 

278.  One  who  purchases  personal  proper- 


EVIDENCE,  TI.  e,  7. 


1095 


ty  from  another  who  secured  it  by  fraud 
has  the  burden  of  proving  his  good-faith 
purcliase,  without  knowledge  of  fraud,  or 
acts  imputing  notice  sufficient  to  put  him 
on  inquiry  as  to  the  fraud  of  his  vendor 
when  such  fraud  has  been  once  established, 
otherwise  he  takes  no  title  superior  to  that 
possessed  by  his  vendor,  which  is  one  void- 
able at  the  option  of  the  original  seller. 
Ditton  V.  Purcell,  36:  149,  132  N.  W,  347, 
21  N.  D.  648. 

279.  The  transfer  of  a  note  in  violation 
of  an  agreement  that  it  will  be  returned  if 
the  property  for  which  it  was  given  did  not 
give  satisfaction  is  a  fraud,  which  casts 
upon  the  transferee  the  burden  of  sliowing 
that  he  took  the  note  in  good  faith,  which 
includes  proof  that  he  paid  full  value  for  it. 
Pierson  v.  Huntington,  29:  695,  74  Atl.  88, 
82  Vt.  482. 

280.  Evidence  of  fraud  in  procuring  the 
execution  of  a  negotiable  instrument  shifts 
the  burden  of  proof  as  to  the  good  faith 
of  a  purchaser  thereof  before  maturity,  and 
is  admissible  for  that  purpose,  but  of  itself 
in  no  way  tends  to  establish  bad  faith  on 
the  part  of  such  purchaser.  Vaughn  v. 
Johnson,  37:  816,  119  Pac.  879,  20  Idaho, 
669. 

281.  Mere  evidence  of  fraud  or  deception 
in  procuring  a  negotiable  promissory  note 
which  is  fair  and  regular  on  its  face  is  not 
sufficient  to  raise  a  presumption  of  bad 
faith  against  the  purchaser  of  such  paper 
in  due  course,  nor  should  such  fact  be  given 
any  consideration  by  a  jury  in  determining 
whether  or  not  the  holder  of  the  instru- 
ment had  actual  knowledge  of  the  infirmity 
or  defect,  or  knowledge  of  such  facts  that 
his  action  in  taking  the  instrument  amount- 
ed to  bad  faith.  Vaughn  v.  Johnson,  37: 
816,  119  Pac.  879,  20  Idaho,  669. 

Undne  inflnence. 

282.  In  a  controversy  as  to  whether  prop- 
erty was  obtained  by  undue  influence  there 
is  an  evidentiary  presumption  in  favor  of 
the  person  charged,  the  same  as  in  all 
cases  sounding  in  fraud,  that  he  did  not 
perpetrate  the  wrong.  Boardman  v.  Lor- 
entzen,  52:  476,  145  N.  W.  750,  155  Wis.  566. 

283.  The  presumption  of  undue  influence 
in  case  of  gifts  from  a  man  to  his  mistress 
is  one  of  fact.  Piatt  v.  Elias,  11:  554,  79  N. 
E.  1.  186  N.  Y.  374.  "  (Annotated) 

284.  In  the  case  of  a  gift  or  voluntary 
conveyance  inter  vivos,  where  the  donor  is 
a  widow  enfeebled  in  mind  by  disease  or 
old  age,  and  the  person  benefited  is  her  son, 
with  whom  she  makes  her  home,  equity 
raises  the  presumption  that  the  gift  or  vol- 
untary conveyance  was  brought  about  by 
undue  influence,  and  the  burden  is  upon  the 
party  benefited  to  show  affirmatively  that 
the  transaction  was  fairly  conducted  as  if 
between  strangers.  Smith  v.  Smith,  35: 
944,  114  Pac.  245,  84  Kan.  242. 

(Annotated) 

285.  A  physician  who  enters  into  a  con- 
tract with  his  patient  is  not  bound,  in  order 
to  sustain  the  validity  of  the  contract,  to 
show  that  the  patient  had  independent  and 
Digest   1-52  Ii.R.A.(N.S.) 


I  competent  advice  before  executing  the  con- 
tract.    Re  McVicker,  28:  11 12,  91  N.  E.  1041, 
245  111.   180. 
—  In  procuring  ivill. 

286.  Power,  notice,  and  opportunity  to 
exercise  undue  influence  do  not  alone'  au- 
thorize the  inference  that  such  influence 
has  in  fact  been  exercised.  Ginter  v.  Gin- 
ter,  22:  1024,  101  Pac.  634,  79  Kan.  721. 

287.  The  mere  existence  of  confidential 
relations  between  a  testator  and  a  beneficia- 
ry under  his  will  does  not  raise  a  presump- 
tion that  the  beneficiary  has  exercised  un- 
due influence  over  the  testator,  and  does  not 
cast  upon  the  beneficiary  the  burden  of  dis- 
proving undue  influence,  but  those  conse- 
quences follow  only  when  the  beneficiary  has 
been  actively  concerned  in  some  way  with 
the  preparation  or  execution  of  the  will. 
Ginter  v.  Ginter,  22  1024,  101  Pac.  634,  79 
Kan.  721. 

288.  Undue  influence  in  the  making  of  a 
will  cannot  be  inferred  from  the  mere  fact 
that  it  was  in  favor  of  one  with  whom  testa- 
tor had  maintained  illicit  relations,  and  was 
contrary  to  his  expressed  intention  of  leav- 
ing his  property  to  a  dependent  sister,  who 
had  cared  for  him  in  his  youth.  Saxton  v. 
Krumm,  17:  477,  68  Atl.  1056,  107  Md.  393. 

(Annotated) 

289.  The  giving  of  unequal  portions  to 
the  natural  objects  of  the  testator's  bounty 
raises  no  presumption  of  undue  influence, 
although,  where  there  is  proof  of  undue 
influence,  that  fact  may  be  considered  in 
determining  whether  or  not  the  will  is  that 
of  the  testator.  Ginter  v.  Ginter,  22:  1024, 
101  Pac.  634,  79  Kan.  721.  (Annotated) 

290.  The  burden  of  proof  for  overcoming 
the  presumption  that  a  contested  will  which 
appears  to  have  been  duly  executed  and  at- 
tested is  valid  is  upon  whoever  alleges  it  to 
be  the  product  of  undue  influence  or  fraud. 
Ginter  v.  Ginter,  22:  1024,  101  Pac.  634,  79 
Kan.  721. 

291.  That  a  will  is  drafted  by  a  daughter 
of  the  testator,  and  that  she  is  named  there- 
in as  the  executrix,  does  not  raise  a  pre- 
sumption of  undue  influence,  where  she  is 
otherwise  merely  equally  favored  with  the 
other  children.  Kirby  v.  Sellards,  28:  270, 
108  Pac.  73,  82  Kan.  291.  (Annotated) 
Duress. 

292.  Where  it  is  shown  that  an  elderly 
man  was  called  to  the  office  of  a  lawyer,  a 
stranger  to  him,  suddenly  presented  with  a 
deed  of  trust,  and  by  his  son  and  the 
lawyer  given  the  alternative  of  signing  the 
instrument  or  having  guardianship  proceed- 
ings against  him  begun;  and  that,  without 
time  to  reflect  or  consult  with  friends, 
he  signed  the  deed  of  trust,  at  the  time 
stating  that  he  was  signing  his  life  away, — 
the  presumption  arises  that  the  instrument 
was  obtained  through  duress  and  undue 
influence,  and  the  burden  is  then  upon  the 
party  procuring  the  execution  of  the  instru- 
ment to  show  that  the  execution  was  not  so 
procedure.  Hogan  v.  Leeper,  47:  475,  133 
Pac.  190,  37  Okla.  655. 


1096 


EVIDENCE,  II.  e,  8,  9. 


S.  Truth;  innocence;  guilt. 

(See  also   same  heading   in  Digest  LJR.A. 
1-10.) 

Trnth. 

As  to  truth  of  warranties  or  representations 

by  insured,  see  infra,  555. 
Burden  of  showing  truth  of  alleged  libelous 

article,  see  infra,  674-677. 
Error  in  instruction  as  to  presumpticm  of 

truthfulness    of    witness,    see    Appeal 

AND  Error,  1374. 
Presumption  of  truthfulness  of  recitals  of 

record    as    to    jurisdiction    to    render 

judgment,  see  Judgment,  68. 

293.  The  law  does  not  presume  that  a 
witness  tells  the  truth,  nor  does  it  pre- 
sume the  contrary.  State  v.  Halvorson, 
14:  947,  114  N.  W.  9.57,  103  Minn.  265. 

294.  One  seeking  to  avoid  a  marriage  in- 
to which  he  entered  because  of  an  arrest  for 
seduction  of  the  bride  has  the  burden  of 
proving  the  falsity  of  the  charge.  Thorne 
V,  Farrar,  27:  385,  107  Pac.  347,  57  Wash. 
441. 

295.  In  an  action  against  a  deputy  sheriff 
for  trespass  in  executing  a  search  warrant 
directed  to  him.  regular  upon  its  face  and 
issued  by  a  justice  of  the  peace  upon  a 
sworn  complaint,  the  burden  of  proof  is  not 
upon  such  officer  to  prove  that  the  facts  set 
out  in  the  complaint  upon  which  the  war- 
rant was  issued  are  true,  even  though  he 
swore  to  the  complaint.  Kniseley  v.  Ham, 
49:  770,  i:}6  Pac.  427,  39  Okla.  623. 

296.  Testimony  of  a  partner  in  a  firm  en- 
gaged in  selling  a  secret  remedy  that  he 
knew  the  formula,  is  not  so'  unreasonable 
as  to  require  its  disbelief,  merely  because 
he  was  the  advertising  man,  while  a  physi- 
cian was  the  controlling  factor  in  the  firm, 
and  if  every  member  knew  the  formula 
there  woilild  be  nothing  to  prevent  each  from 
competing  for  the  business  upon  dissolution 
of  tlie  partnership.  Memphis  Keeley  Insti- 
tute v.  Leslie  E.  Keeley  Co.  16:  921,  155 
Fed.  964,  84  C.  C.  A.  112. 
Innocence. 

Sufficiency   of   eTidence,    see   infra,   2198. 
Presumption  of  innocence  upon  aj^eal  from 

conviction,  see  Appeal  and  Ebbob,  479. 
Instructions  as  to,  see  Appeal  and  Ebbob. 

1390;    Tbial,   1072. 
See  also  supra,  122. 

297.  In  case  of  the  remarriage  of  a  woman 
whose  husband  had  not  been  heard  from 
for  three  years,  the  presumption  of  inno- 
cence will  evercome  the  presumption  of  his 
continued  life.  Smith  v.  Fuller,  16:  98,  115 
N.  W.  912,  138  Iowa,  91.  (Annotated) 

298.  The  mere  want  of  proof  that  an  au- 
tomobile injured  by  reason  of  a  defective 
highway  was  registered  and  licensed,  al- 
though the  violation  of  the  statute  in  this 
respect  would  leave  the  owner  without  a 
remedy  for  an  injury  caused  by  a  defect  in  the 
highway,  will  not  prevent  recovery  of  dam- 
ages for  such  injury,  as  the  presumption  of 
law  and  fact  is  always  in  favor  of  inno- 
Digest  1-52  L.R.A.(N.8.) 


cence.     Doherty  v.   Aver,   14:  816,   S3  N.  EL 
677,  197  Mass.  241. 
—  In  criminal  case. 

299.  The  presumption  of  innocence  is  not 
evidence  against  a  charge  of  homicide,  and 
remains  with  accused  only  until  it  is  over- 
come   by    the    evidence    in    the    case.     Cul- 

gepper  v.   State,   31:  1166,   111   Pac.   679,  4 
kla,   Crim.   Rep.   103. 

300.  One  accused  of  homicide  who  ad- 
mits the  killing  and  pleads  self-defense  in 
justification  is  not  entitled  to  th^  pre- 
sumption of  innocence,  where  the  statute 
provides  that  one  accused  of  crime  is  pre- 
sumed to  be  innocent  until  the  contrary 
is  proved,  and  that  when  a  homicide  is 
proved  the  burden  of  proving  mitigating 
circumstances  is  upon  the  accused.  Cul- 
pepper V.  State,  31:  1166,  111  Pac.  679,  4 
Okla.  Crim.  Rep.  103.  (Annotated) 

301.  The  presumption  of  innocence  of  one 
on  trial  for  a  crime  is  one  of  fact  and  of 
law,  and  no  person  can  be  convicted,  even 
under  a  joint  information,  without  proof 
of  his  individual  guilt.  High  v.  State,  28: 
162,  101  Pac.  115,  2  Okla.  Crim.  Rep.  161. 
Guilt. 

Presumption  of  guilt  on  appeal  from  convic- 
tion, see  Appeal  and  Erkob,  479. 

Presumption  arising  from  indictment  by 
grand  jury,  see  Baq.  and  Recogni- 
zance, 14,  16. 

Correctness  of  instruction  as  to,  see  Trl^.l, 
1095. 

See  also  infra,  2386. 

302.  No  presumption  of  guilt  arises  from 
flight  after  the  commission  of  a  crime. 
Territory  v.  Lucero,  39:  58,  120  Pac.  304,  16 
X.  M.  652.  (Annotated) 

303.  When  a  sale  of  intoxicating  liquors 
is  proven  to  have  been  made  by  a  licensed 
druggist,  it  is  presumed  to  have  been  un- 
lawfully made,  and  the  burden  is  then  cast 
upon  him  to  rebut  such  presumption.  State 
V.  Davis,  32:  501,  69  S.  E.  639,  68  W.  Va. 
142, 

304.  An  instruction  that  the  possession  of 
stolen  property  recently  after  it  has  been 
stolen  is  prima  facie  evidence  of  guilt,  and 
throws  upon  the  possessor  the  burden  of 
explaining  his  possession  of  the  property, 
which,  if  unexplained,  is  sufficient  to  war- 
rant a  convictioii,  states  the  law  of  the 
state  of  Kansas.  State  v.  White,  14:  556, 
92  Pac.  829,  76  Kan.  654. 

9.  From    silence;    withholding    or    de^ 
stroying  evidence. 

(See  also  same  heading  m  Digest  LJt.A. 
1-10.) 

Prejudicial  error  in  instructions  as  to  fail- 
ure of  plaintiff  to  appear  as  witness,, 
see  Appeal  and  Error,   1375, 

Instructions  as  to,  see  Tblal,  972. 

305.  The  withholding  of  competent  and 
pertinent  evidence  within  the  control  of  a 
party  raises  the  presumption  that  it  is- 
against  his  interest  and  insistence.     Stand- 


EVIDENCE,  II.  f,  g. 


1097 


«,rd  Oil  Co.  V.  State,  lo:  1015,  100  S.  W. 
705,  117  Tenn.  618. 

300.  In  an  equity  proceeding  questioning 
the  integrity  of  a  transfer  of  the  control  and 
jissets  of  a  corporation,  the  alleged  trans- 
feree cannot  hold  back  proof,  oral  or  record, 
that  is  exchisively  within  its  control,  with- 
out leaving  the  inference  that  such  proof 
would  be  unfavorable  to  it.  Williams  v. 
•Commercial  Nat.  Bank,  ii:  857,  90  Pac. 
1012,  44  Or.  492. 

.307.  The  suppression  by  one  accused  of 
•causing  a  surety  to  withdraw  from  a  bond, 
of  a  letter  alleged  to  have  contained  the 
false  statement  causing  such  action,  and 
failure  to  produce  it  in  response  to  a  sub- 
poena duces  tecum,  are  sufficient  to  support 
a  verdict  against  him.  McClure  v.  McClin- 
tock,  42:  383,  150  S.  W.  332,  849,  150  Ky. 
265,  773. 

308.  As  a  general  rule  the  omission  by  a 
party  to  produce  important  testimony  re- 
lating to  a  fact  of  which  he  has  knowledge, 
and  which  is  peculiarly  within  his  own  reach 
and  control,  raises  the  presumption,  open 
to  explanation  of  course,  that  the  testimony, 
if  produced,  would  be  unfavorable  to  Lim. 
Fowler  Packing  Co.  v.  Enzenperger,  15:  784, 
94  Pac.  995,  77  Kan.  406. 

309.  When  the  evidence  tends  to  connect 
one  charged  in  a  civil  action  as  a  wrongdoer 
with  the  wrongful  acts  charged,  every  legit- 
imate inference  warranted  by  the  evidence 
may  be  taken  against  him,  in  the  absence 
of  any  evidence  explaining  or  denying  the 
wrongful  acts.  Bowe  v.  Palmer,  24:  226,  102 
Pac.   1007,   36   Utah,   214. 

310.  A  foreign  corporation  which  relies  on 
the  inability  of  one  suing  on  a  contract 
alleged  to  have  been  made  by  its  agent  to 
prove  the  agency,  and  fails  to  give  evidence 
in  explanation  of  evidence  tending  to  con- 
nect it  with  the  ownership  of  the  business, 
subjects  itself  to  all  fair  inferences  which 
the  circumstances  disclosed  will  warrant. 
Mullen  v.  J.  J.  Quinlan  &  Co.  24:  511,  87 
N.  E.  1078,  195  N.  Y.  109. 

311.  Failure  of  one  who  had  medicines  an- 
alyzed for  the  purpose  of  establishing  their 
fraudulent  character,  so  as  to  avoid  a  con- 
tract with  respect  to  them,  to  testify  that 
spurious  packages  had  not  been  substituted 
for  the  genuine  ones  selected  for  the  analy- 
sis, is  not  an  admission  that  such  substitu- 
tion had  occurred.  Memphis  Keeley  Insti- 
tute V.  Leslie  E.  Keeley  Co.  16:  921,  155  Fed. 
«64,  84  C.  C.  A.  112. 

312.  The  silence  of  the  president  of  a  con- 
«ern  compounding  a  secret  medicine  adver- 
tised to  contain  a  certain  ingredient,  who 
knows  its  ingredients,  when  asked  as  a 
witness  in  a  case  involving  the  validity  of  a 
•contract  sought  to  be  avoided  because  of 
fraud  in  making  such  claim,  as  to  whether 
•or  not  it  does  contain  such  ingredient,  will 
be  construed  as  an  admission  that  it  does 
■not.  Memphis  Keeley  Institute  v.  Leslie 
E.  Keeley  Co.  16:  921,  155  Fed.  964,  84  C,  C. 
A.  112. 

Digest  1-52  IkBI.A.(NJ5.) 


/.  Corporations;  partnership. 

(See  also   same   heading   in   Digest   L.R.A. 

313.  There  is  no  presumption  of  law  that 
a  corporation  organized  for  a  definite  period 
will  prolong  its  artificial  existence  by  avail- 
ing itself  of  statutory  provisions  for  re- 
newal of  its  franchise.  Newhall  v.  Jour- 
nal Printing  Co.  20:  899,  117  N.  W.  228, 
105  Minn.  44. 

314.  Parties  who  associate  themselves  to- 
gether and  incur  liabilities  in  the  conduct 
of  a  business  imder  the  name  of  a  supposed 
corporation  have  the  burden  of  proving  that 
they  are  duly  incorporated,  as,  in  such  case, 
the  presumption  is  that  they  are  merely 
partners,  and  liable  only  as  such.  Harrill 
V.  Davis,  22:  1153,  168  Fed.  187,  94  C.  C. 
A.  47. 

Poivers  and  acts. 

315.  The  indorsement  of  a  note  payable  to 
a  corporation,  by  one  signing  as  its  offi- 
cer, is  presumed  to  be  a  corporate  act. 
Page  V.  Ford,  45:  247,  131  Pac.  1013,  65  Or. 
450. 

g.  Continuance;  cause. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Continuance. 

As  to  continuance  of  life,  see  supra,  145, 
146,  297,  2402. 

Sufficiency  of  allegations  to  raise  presump- 
tion of  present  ownership,  see  Plead- 
ing, 222. 

316.  The  presumption  is  in  favor  of  the 
continuance  of  the  terms  of  the  holding 
when  a  lease  is  recognized  by  a  grantee  of 
the  reversion.  Searle  v.  Roman  Catholic 
Bishop,  25:  992,  89  N.  E.  809,  203  Mass. 
493. 

317.  Possession  being  a  fact  continuous 
in  its  nature,  when  its  existence  is  once 
shown,  it  will  be  presumed  to  continue  un- 
til the  contrary  is  proved.  Wails  v.  Far- 
rington,  35:  ii74,  116  Pac.  428,  27  Okla. 
754. 

318.  When  the  existence  of  a  residence  at 
a  certain  place  at  a  certain  time  has  been 
established,  it  will  be  presumed  to  have  con- 
tinued, until  the  contrary  is  shown.  State 
ex  rel.  Phelps  v.  Jackson,  8:  1245,  65  Atl. 
657,  79  Vt.  504. 

319.  The  insanity  of  one  acquitted  of  mur- 
der on  the  ground  of  insanity  is  presumed 
to  continue  until  the  contrary  is  shown. 
State  ex  rel.  Thompson  v.  Snell,  9:  1191,  89 
Pac.  931,  46  Wash.  327. 

320.  Where  there  is  no  actual  change  in 
the  management  of  a  business,  and  it  is  con- 
tinued in  the  same  general  way  after  a  sale, 
by  the  same  servants  and  employees,  and 
the  servants  are  in  no  way,  expressly  or 
otherwise,  informed  of  the  transfer  and  the 
consequent  change  of  proprietors,  the  rela- 
tion of  master  and  servant  existing  between 
the  employees  and  the  former  owner  is  pre- 


1098 


EVIDENCE,  II.  h,  1. 


sumed  to  continue  for  a  reasonable  time, 
and  the  master  remains  liable  to  the  em- 
ployees to  the  same  extent  as  though  no 
sale  or  transfer  had  taken  place.  Benson 
V.  Lehigh  Valley  Coal  Co.  50:  170,  144  N, 
W.  774,  124  Minn.  222. 
Cause. 
Burden    of   proving    exceptions,    see   supra, 

113,   114. 
Probable  cause,  see  supra,  236,  237. 
That  liquor  sold  to  intoxicated  person  in- 
flicting injury  was  proximate  cause  of 
injury,  see  Intoxicating  Liquors,  192. 
See  also  infra,  381,  426,  428. 

321.  The  jury  may  infer  that  the  failure 
of  an  employee  to  secure  employment  from 
members  of  an  employers'  association  was 
because  one  of  their  number  who  discharged 
him  circulated  among  the  members  of  the 
association  a  letter  requesting  them  not  to 
employ  him,  in  accordance  with  a  rule  of 
the  association.  Willner  v.  Silverman,  24: 
895,  71  Atl.  962,  109  Md.  341. 

322.  The  mere  fact  that  in  cleaning  snow 
from  the  sidewalk  it  was  piled  on  the  inner 
edge  of  the  walk  does  not  warrant  the  infer, 
ence  that  it  is  the  cause  of  ice  found  thereon, 
where  the  snow  in  the  street  is  higher  than 
the  walk,  sloping  therefrom  ov  the  gutter 
onto  the  walk,  and  the  ice  is  thicker  at  the 
outer  than  at  the  inner  edge  of  ^he  walk. 
Dahlin  v.  Walsh,  6:  615,  77  N.  E.  830,  192 
Mass.  163. 

323.  In  the  absence  of  proof  to  the  con- 
trary, it  will  be  presumed  that  the  cause  of 
an  explosion  in  a  portion  of  a  building 
originated  where  the  explosion  occurred, 
and  one  contending  that  it  originated  else- 
where has  the  burden  of  establishing  that 
fact.  Kearner  v.  Charles  S.  Tanner  Co. 
29:  537,  76  Atl.  833,  31  R.  I.  203. 

—  Of  death  or  injury. 

Presumption  and  burden  of  proof  as  to  sui- 
cide, see  supra,  157-165. 

Cause  of  illness  of  passenger,  see  infra,  368. 

Of  injuries  to  insured,  see  infra,  552. 

Of  loss  of  insured  property,  see  infra,  553, 
554. 

324.  One  seeking  to  hold  a  railroad  com- 
pany liable  for  injuries  caused  by  a  horse 
alleged  to  have  been  frightened  by  the  im- 
proper use  by  defendant  of  a  locomotive 
whistle  has  the  burden  of  showing  that  the 
improper  use  of  the  whistle  was  the  prox- 
imate cause  of  the  injury.  Lyons  v.  Chi- 
cago, M.  &  St.  P.  R.  Co.  35:  I2IJ,  132  N.  W. 
679,    28   S.   D.   31. 

325.  It  is  not  essential  to  a  recovery  by 
an  intoxicated  passenger  for  injuries  sus- 
tained by  him  in  being  thrown  from  a  street 
car,  that  he  show  how  much  of  the  dam- 
age is  due  to  the  negligence  of  the  street 
car  company,  and  how  much  is  due  to  his 
intoxicated  condition,  so  that  the  jury  can 
determine  these  amounts.  O'Keefe  v.  Kan- 
sas City  Western  R.  Co.  48:  135,  124  Pac. 
416,  87  Kan.  322. 

326.  In  an  action  to  recover  damages  for 
personal  injtiries  alleged  to  have  been  caused 
by  defendant's  negligence  in  selling  plaintiff 
kerosene  oil  which  contained  a  mi.xture  of 
gasolene,  without  informing  him  of  the  fact. 
Digest  1-52  L.R.A.(N.S.) 


the  plaintiff  has  the  burden  of  showing  that 
the  explosion  of  the  oil  by  which  he  was  in- 
jured was  due  to  tlie  presence  of  the  gaso- 
lene therein.  Morrison  v.  Lee,  13:  650,  113 
N.  W.   1025,   16  N.   D.  377. 

327.  The  jury  may  infer  that  turkeys 
feeding  on  a  railroad  track  would  have 
flown  beyond  danger,  liad  a  warning  whistle 
been  given  upon  approach  of  a  train,  and 
that  failure  to  give  such  signal  was  there- 
fore the  proximate  cause  of  their  being 
killed  by  the  train.  Lewis  v.  Norfolk,  S.  R. 
Co.  47:  1 125,  79  S.  E.  283,  163  N.  C.  33. 

328.  Proof  that  a  machine  worked  perfect- 
ly both  before  and  after  an  alleged  erratic 
movement  which  is  alleged  to  have  caused 
a  personal  injury  casts  the  burden  on  plain- 
tiff of  showing  that  such  movement  was 
caused  by  a  defect  in  the  appliance.  Chy- 
bowski  v.  Bucyrus  Co.  7:  357,  106  N.  W.  833, 
127  Wis.  332. 

329.  Tlie  absence  of  direct  evidence  as  to 
the  cause  of  the  death  of  an  employee 
whose  body  was  found  near  a  building  in 
which  dynamite  had  been  stored  will  not 
prevent  a  finding  by  the  jury  that  it  was 
caused  by  an  explosion  of  dynamite  by  a 
lightning  stroke,  if  known  facts  point  to 
that  inference.  Brown  v.  West  Riverside 
Coal  Co.  28:  1260,  120  N.  W.  732,  143  Iowa, 
662. 

h.  As  to  sTcilli  negligence;  care. 

1.  Of  'person  cauoing  injury. 

a.  In  General. 

(See  also   same  heading   in   Digest  L.R.A. 
1-70.) 

Burden   of   proving   allegations   as   to,    see 

supra,   90-92. 
As  to  cause  of  death  or  injury,  see  eupra. 

324-329, 
Admissibility  of  evidence,  see  infra,  XI.  h 
Sufiiciency  of  evidence,  see  infra,  XII.  d. 

330.  The  mere  happening  of  an  accident, 
without  some  proof  of  facts  from  which 
the  violation  of  a  duty  due  to  the  plain- 
tiff by  the  defendant  may  be  legitimately 
inferred,  as  a  rule,  will  not  constitute  neg- 
ligence. Kingsley  v.  Delaware,  L.  &  W.  R. 
Co.  (N.  J.  Err.  &  App.)  35:  338,  80  Atl. 
327,  81  N.  J.  L.  536. 

331.  Mere  proof  of  facts  which  call  into 
action  the  rule  res  ipsa  loquitur  in  an  ac- 
tion for  negligent  injuries  does  not  make  a 
prima  facie  case,  or  raise  a  presumption  of 
negligence,  but  merely  furnishes  an  ele- 
ment to  be  considered  by  the  jury  as  part 
of  the  plaintiff's  case.  Ross  v.  Double 
Shoals  Cotton  Mills,  i:  298,  52  S.  E.  121, 
140  N.  C.  115. 

332.  The  principal  of  res  ipsa  loquitur 
only  applies  when  the  direct  cause  of  the 
accident  and  so  much  of  the  surrounding 
circumstances  as  were  essential  to  its  occur- 
rence were  within  the  sole  control  and 
management  of  the  defendants  or  their 
servants,   so  that   it   is   not  unfair  to  at- 


EVIDENCE,  II.  h,  1. 


1099 


tribute  to  them  a  prima  facie  responsibility 
for  what  happened.  Per  Fletcher  Moulton, 
L.  J.,  in  Wing  v.  London  General  Omnibus 
Co.  3  B.  K.  0.  79,  [1909J  2  K.  B.  652. 
Also  Reported  in  78  L.  J.  K.  B.  N.  S.  1063, 
101  L.  T.  N.  S.  411,  73  J.  P.  429,  25  Times 
L.  R.  729,  53  Sol.  Jo.  713,  7  L.  G.  R.  1093. 

333.  When  circumstances  are  relied  on  to 
show  negligence,  they  must  be  of  such  sig- 
nificance and  relation  one  to  another  that 
a  reasonable  conclusion  of  negligence  can  be 
founded  thereon;  and,  while  reasonable  in- 
ferences may  be  drawn  from  the  facts  or 
conditions  shown,  they  cannot  be  drawn 
from  facts  or  conditions  merely  imagined  or 
assumed.  Duncan  v.  Atchison,  T.  &  S.  F.  R. 
Co.  51:  565,  119  Pac.  356,  86  Kan.  112. 

b.  Carriers. 

(1)    Of  passengers, 

(See  also   same   heading  in  Digest  L.R.A. 
1-10.) 

As  to  elevators,  see  infra,  466,  467. 
Sufficiency  of  evidence,  see  infra,  2145-2149. 
Question    as    to    whether    presumption    has 

been  overcome,    see   Trial,   364. 
Sufficiency  of  evidence  to  overcome  presiunp- 

tion   as   question   for   jury,   see  Tbial, 

366,   368. 
Instruction  as  to  burden  of  proof  in  case 

of  injury  to  passenger,  see  Trial,  1051. 
See  also  Caebiebs,  121,  533;  Pleading,  290. 

334.  The  mere  injury  to  a  passenger  on  a 
train  is  not  of  itself  prima  facie  evidence  of 
negligence  or  liability  on  the  part  of  tlie 
carrier.  Brice  v.  Southern  R.  Co.  27:  768, 
67  S.  E.  243,  85  S.  C.  216. 

335.  A  railroad  company  whose  train 
kills  a  passenger  has  the  burden  of  nega- 
tiving the  inference  of  negligence  on  its 
part.  Dieckmann  v.  Chicago  &  N.  W.  R. 
Co.  31:  338,  121  N.  W.  676,  145  Iowa,  250. 

336.  A  presumption  of  negligence  on  the 
part  of  a  carrier  does  not  follow  the  simple 
and  unexplained  fact  of  an  accident  result- 
ing in  the  injury  of  a  pasSenger,  but  the 
question  is  one  to  be  determined  by  the  sur- 
rounding circumstances;  and  when  they  are 
of  such  a  character  as  to  withdraw  any  pre- 
sumption of  fault  or  negligence  against  the 
carrier,  it  should  not  be  held  responsible. 
McGinn  v.  New  Orleans  R.  &  L.  Co.  13:  601, 
43  So.  450,   118  La.  811.  (Annotated) 

337.  In  an  action  by  a  passenger  to  recov- 
er damages  for  personal  injuries  sustained 
by  falling  in  the  car  which  she  was  at- 
tempting to  leave,  she  must  show  some  act 
or  omission,  some  occurrence  in  or  about  the 
car  unusual  and  not  ordinarily  to  be  ex- 
pected in  the  course  of  transportation,  be- 
fore the  burden  is  shifted  to  the  defendant 
carrier  to  explain  the  injury.  McGinn  v. 
New  Orleans  R.  &  L.  Co.  13:  601,  43  So.  450, 
118  La.  811. 

338.  The  provision  of  La.  Civ.  Code,  art. 
2754,  throwing  the  burden  of  proof  upon 
the  carrier  in  case  of  injury,  refers  to 
"things"  intrusted  to  the  care  of  the  carrier, 
Bigest  1-52  Ii.R.A.(N.S.) 


and  is  inapplicable  in  an  action  by  a  pas- 
senger to  recover  damages  for  personal  in- 
juries. McGinn  v.  New  Orleans  R.  &  L. 
Co.  13:  601,  43  So.  450,  118  La.  8U. 

339.  Where  an  accident  occurs  and  an  in- 
jury is  received  by  a  passenger  on  a  rail- 
way train,  and  the  evidence  clearly  dis- 
closes that  the  injury  was  not  caused  by 
any  defect  in  the  machinery  or  appliances 
used  by  the  company  in  the  operation  of  its 
road,  or  by  any  defect  in  the  operation  of 
its  road,  or  by  any  defect  in  the  construc- 
tion of  the  road,  and  was  not  caused  by  any 
act  of  the  employees  of  the  company,  or  of 
any  person  in  charge  of  the  train,  there  is 
no  presumption  of  negligence  on  the  part 
of  the  railway  company,  and  it  is  incum- 
bent on  the  party  seeking  relief  to  prove 
negligence.  Northern  P.  R.  Co.  v.  Le  Deau, 
34:  725,   115  Pac.   502,   19   Idaho,  711. 

340.  The  burden  of  showing  negligence  in 
an  action  to  recover  damages  for  the  al- 
leged negligent  killing  of  a  passenger  upon 
a  vestibule  train,  who  was  found  in  a 
mangled  condition  beside  the  track  some 
200  or  300  feet  east  of  the  station  of  his 
destination  immediately  after  the  departure 
of  the  train  therefrom  to  the  westward,  is 
upon  the  plaintifT,  since  no  presumption  of 
negligence  upon  the  part  of  the  railroad 
employees  arises  from  the  bare  fact  that  a 
passenger  is  found  dead  beside  the  track 
after  having  disappeared  from  a  vestibule 
passenger  train.  Brown  v.  Union  P.  R.  Co. 
29:808,  106  Pac.  1001,  81  Kan.  701. 

(Annotated) 

341.  Negligence  on  the  part  of  a  railroad 
company  will  not  be  inferred  from  the  mere 
fact  that  a  car  door  slammed  shut,  catching 
and  crushing  the  hand  of  a  passenger,  who, 
while  attempting  to  pass  through  it,  rested 
his  hand  on  the  door  jamb.  Christensen  v. 
Oreson  S.  L.  R.  Co.  20:  255,  99  Pac.  676,  35 
Utah,  137. 

342.  That  a  passenger  is  injured  by  a 
violent  jerk  or  jar  of  the  car  in  whicjj  he  is 
riding  such  as  would  not  ordinarily  happen 
had  the  carrier  used  due  care  makes  a  prima 
facie  showing  of  negligence  on  the  part  of 
the  carrier.  Sever  v.  Minneapolis  &  St.  L. 
R.  Co.  44:  1200,  137  N.  W.  937,  156  Iowa, 
664. 

343.  The  mere  happening  of  an  accident 
to  a  passenger  in  a  motor  omnibus,  oc- 
casioned by  its  skidding  on  a  slippery  pave- 
ment when  avoiding  other  vehicles  and 
striking  a  lamp  post,  is  not  prima  facie 
evidence  of  negligence  on  the  part  of  the 
carrier.  Wing  v.  London  General  Omnibus 
Co.  3  B.  R.  C.  79,  [1909]  2  K.  B.  652.  Also 
Reported  in  78  L.  J.  K.  B.  N.  S.  1063,  101 
L.  T.  N.  S.  411,  73  J.  P.  429,  25  Times 
L.  R.  729,  53  SoL  Jo.  713,  7  L.  G.  R. 
1093.  (Annotated) 
Derailment. 

344.  Negligence  on  the  part  of  a  railroad 
company  is  presumed  from  the  fact  that  a 
passenger  coach  was  derailed,  overturned, 
and  dragged  on  its  side,  to  the  injury  of  a 
passenger.  Southern  P.  Co.  v.  Hogan,  29: 
813,   108   Pac.   240,   13  Ariz.  24. 

( Annotated ) 


1100 


EVIDENCE,  II.  h,  1. 


345.  Where  by  statute  a  carrier  is  liable 
for  injury  to  a  gratuitous  passenger  through 
its  failure  to  exercise  ordinary  care,  proof 
of  derailment  of  a  train,  to  the  injury  of 
such  passenger,  raises  the  presumption  that 
it  occurred  through  ordinary  negligence 
and  places  upon  the  carrier  the  burden  of 
ehowing  that  it  occurred  notwithstanding  its 
exercise  of  ordinary  care.  John  v.  Northern 
P.  R.  Co.  32:  85,  111  Pac.  632,  42  Mont.  18 

346.  A  presumption  of  negligence  arises 
from  the  fact  of  the  derailment  of  a  car 
whereby  a  passenger  is  injured,  but  when 
that  presumption  is  met  by  evidence  which 
makes  it  equally  probable  that  the  accident 
was  not  due  to  negligence  on  the  part  of  the 
defendant,  in  the  absence  of  other  evidence 
tending  to  establish  the  affirmative  of  the 
issue,  the  defendant  is  entitled  to  a  verdict. 
Omaha  Street  R.  Co.  v.  Boesen,  4:  122,  105 
N.  W.  303,  74  Neb.  764. 

347.  In  an  action  against  a  street  railway 
company  for  damages  for  injuries  sustained 
by  one  of  its  passengers,  the  burden  of 
proof  on  the  question  of  negligence  does  not 
shift  to  the  defendant  upon  proof  that  the 
injuries  resulted  from  a  derailment  of  the 
car.  Omaha  Street  R.  Co.  v.  Boesen,  4:  122, 
105  N.  W.  303,  74  Neb.  764. 

348.  A  passenger  on  a  street  car  makes  a 
prima  facie  case  for  damages  against  the 
street  car  company  by  showing  that  he  was 
injured  by  the  car  leaving  the  track  and 
colliding  with  a  telegraph  pole.  O'Gara  v. 
St.  Louis  Transit  Co.  12:  840,  103  S.  W- 
64,  204  Mo.   724. 

Breaking  •£  bridee* 

349.  When  a  passenger  shows  an  injury  to 
himself  by  the  breaking  of  the  carrier's 
bridge,  the  burden  is  cast  upon  the  carrier 
of  establishing  by  a  preponderance  of  evi- 
dence that  the  accident  and  resulting  injury 
were  caused  by  inevitable  casualty,  or  by 
some  cause  which  human  care  and  foresight 
could  not  have  prevented.  Roanoke  R.  & 
E.  Co.  V.  Sterrett,  19:  316,  62  S.  E.  385,  108 
Va.  533. 

Collisisn. 

Sufficiency  of  evidence  to  overcome  presump- 
tion, see  Triai,  368. 
See  also  infra,  348. 

350.  Proof  of  a  collision  between  trains  on 
a  railroad  makes  a  prima  facie  case  in  favor 
of  an  injured  passenger,  which  the  carrier 
must  rebut  by  showing  it  could  not  have 
been  avoided  by  the  exercise  of  the  highest 
practical  care  and  diligence  on  its  part. 
Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  t.  Higgs, 
4:  1081,  76  N.  E.  299,  165  Ind.  694. 

351.  The  mere  fact  that  a  passenger  train 
runs  into  an  open  switch  and  collides  with 
cars  standing  thereon  does  not  raise,  in 
favor  of  an  injured  passenger,  a  presump- 
tion of  gross  negligence,  which,  without  evi- 
dence, will  entitle  him  to  punitive  damages. 
Southern  R.  Co.  v.  Lee,  10:  837,  101  S.  W. 
307,  30  Ky.  L.  Rep.  1360. 

352.  A  passenger  on  a  suburban  railway 
car  makes  out  a  prima  facie  cause  of  action 
against  the  carrier  by  showing  that  he  was 
injured  by  collision  of  the  car  on  which  he 
was  riding  with  another  car  standing  on 
Digest  1-52  L.R.A.(N.S.) 


the  track  near  a  curve  without  any  signal 
of  its  presence.  Enos  v.  Rhode  Island  Su- 
urban  R.  Co.  12:  244,  67  Atl.  5,  28  R.  I.  291. 

353.  No  presumption  of  negligence  on  the 
part  of  a  street  car  company  arises  from  the 
injury  of  a  passenger  through  a  collision  of 
the  car  with  a  wagon  on  the  street,  so  as  to 
throw  upon  it  the  burden  of  proving  free- 
dom from  negligence.  Chicago  Union  Trac- 
tion Co.  V.  Mee,  a:  725,  75  N.  E.  800,  218 
111.  9.  *  (Annotated) 

354.  A  collision  between  two  street  cars 
operated  by  the  same  company  raises  a  pre- 
sumption of  negligence  in  favor  of  an  in- 
jured passenger,  which  the  company  has  the 
burden  of  overcoming.  Simone  v.  Rhode 
Island  Co.  9:  740,  66  Atl.  202,  28  R.  1.  186. 

355.  A  person  injured  while  a  passenger 
on  a  street  car  by  a  collision  between  the  car 
and  a  wagon  on  the  street  has  the  burden 
of  showing  that  the  carrier  was  guilty  of 
negligence,  in  order  to  hold  it  liable  for  the 
injury.  Chicago  Union  Traction  Co.  v.  Mee, 
2:  725,  75  N.  E.  800,  218  111.  9. 

350.  The  injury  of  a  street  car  passenger 
by  collision  of  the  car  with  a  vehicle  upon 
the  highway  raises  a  presumption  of  neg- 
ligence on  the  part  of  the  carrier  which  will 
justify  a  verdict  against  it  in  an  action  to 
hold  it  liable  for  the  injury,  unless  it  ex- 
plains the  cause  of  the  collision.  Housel 
v.  Pacific  Electric  R.  Co.  51:  1105,  139  Pac 
73,  167  Cal.  245. 
Falling  of  windoxr. 

357.  The  mere  fact  that  a  passenger  in  a 
railroad  car  raises  the  window,  which  falls 
upon  and  injures  him,  does  not  bring  the 
case  within  the  exception  to  the  rule  res 
ipsa  loquitur,  which  applies  where  there  is 
some  action  on  the  part  of  the  passenger 
which  may  have  contributed  to  produce 
the  injury.  Cleveland,  C.  C.  &  St.  L.  R.  Co. 
V.  Hadley,  16:  527,  82  N.  E.  1025,  170  Ind. 
204. 

358.  A  prima  facie  case  of  negligence 
against  a  railroad  company  is  established 
by  evidence  that  a  window  with  a  broken, 
weak,  or  defective  catch  fell  upon  the  arm 
of  a  passenger,  and  that  the  railroad  com- 
pany had  made*  no  effort  to  discover  or  re- 
pair the  defect.  Cleveland,  C.  C.  &  St.  L. 
R.  Co.  V.  Hadley,  16:  527,  82  N.  E.  1025,  170 
Ind.  204. 

Scenic  railiray. 

359.  The  sudden  stopping  of  a  car  on  a 
scenic  railway,  caused  apparently  by  some- 
thing on  the  track,  which  is  not  a  part  of 
its  ordinary  operation,  and  causes  a  pas- 
senger to  be  thrown  out  and  injured,  cre- 
ates a  presumption  of  n^ligence  on  the 
part  of  the  owner,  sufficient  to  carry  to  the 
jury  the  question  of  liability  for  the  in- 
jury. O'Callaghan  v.  Dell  wood  Park  Co. 
26:  1054,  89  N.  E.  1005,  242  111.  336. 
Sleeping  cars. 

360.  In  a  suit  against  a  sleeping  car  com- 
pany by  a  passenger  for  loss  of  personal 
effects,  where  it  is  proved  that  the  plain- 
tiff's baggage  or  articles  of  personal  adorn- 
ment were  stolen  while  he  was  asleep,  the 
burden  of  proof  is  shifted  to  the  defendant 
company;   and  it  is  bound  to  show  that  it 


EVIDENCE,  II.  h,  1. 


1101 


exercised  reasonable  diligence  to  prevent  the 
loss.     Pullman  Co.   v.  Schaffner,  9:  407,  55 
S.  E.  933,  126  Ga.  609. 
Freight  train. 

3G1.  Negligence  sufficient  to  render  a  rail- 
road company  liable  to  a  passenger  for  hire 
on  a  freight  train  for  injuries  sustained  by 
him  by  being  thrown  violently  to  the  floor 
of  the  caboose  in  which  he  was  riding  by 
the  sudden  stopping  of  the  train  at  a  sta- 
tion other  than  his  destination  cannot  be 
inferred  from  proof  that  the  train  stopped 
some  distance  from  such  station,  that  the 
passenger,  thinking  the  station  "had  been 
reached,  stepped  out  on  the  rear  platform  to 
talk  to  a  friend;  that,  finding  the  train 
had  not  reached  the  station,  when  the  train 
started  again  he  stepped  back  into  the  ca- 
boose on  the  way  to  his  seat,  and  turned 
and  was  standing  leaning  against  the  cas- 
ings of  the  car  door  when  the  train  stopped, 
causing  the  injuries, — where  it  does  not 
affirmatively  appear  that  the  jerk  was  an 
extraordinary  or  unusual  one,  since,  in  such 
case,  the  injuries  must  be  attributed  to  the 
dangers  necessarily  attending  the  riding  on 
a  freight  train,  which  are  assumed  by  the 
passenger.  St.  Louis  &  S.  F.  R.  Co.  v.  Gos- 
nell,  22:  892,  101  Pac.  1126,  23  Okla.  588. 
Street  cars. 

See  also  supra,  347,  348,  353-356. 
See  also  Cabbiebs,  99. 

362.  The  mere  fact  that  a  passenger  stand- 
ing in  a  street  car  falls  and  is  injured  by 
the  sudden  checking  of  the  speed  of  the  car 
does  not  render  the  carrier  liable  for  the 
injury.  Ottinger  v.  Detroit  United  R.  34: 
225,   131   N.   W.   528,   166  Mich.   106. 

^  (Annotated) 

363.  The  sudden  starting  of  a  street  car 
from  which  a  passenger  is  in  the  act  of 
alighting,  in  such  a  manner  as  to  throw 
him  to  the  pavement,  raises  the  presump- 
tion of  negligence  on  the  part  of  the  street 
car  company.  Paducah  Traction  Co.  v.  Ba 
ker,   18:  1 185,  113  S.  W.  449,   130  Ky.  360. 

364.  No  negligence  on  the  part  of  a 
street  car  company  will  be  presumed  from 
the  fact  that  a  passenger  compelled  tc 
stand  next  the  guard  rail  on  a  crowded  open 
car  is  thrown  by  a  lurch  of  the  car  against 
one  passing  in  the  opposite  direction  and 
injured.  Cline  v.  Pittsburgh  R.  Co.  27:  936, 
75  Atl.  850,  226  Pa.  586. 

365.  The  closing  of  the  door  of  a  street 
car  upon  a  passenger  as  he  is  attempting 
to  enter  the  car,  to  his  injury,  shows  prima 
facie  negligence  on  the  part  of  the  street 
car  company,  although  a  passenger  may 
have  intentionally  started  the  mechanism 
which  caused  the  door  to  close.  Craft  v. 
Boston  Elevated  R.  Co.  39:  878,  97  N.  E. 
610,  211  Mass.  374.  (Annotated) 

366.  That  a  street  car  passenger  was  not 
passive,  but  actively  engaged  in  attempting 
to  alight  from  the  car,  when  his  feet  be- 
came entangled,  to  his  injury,  in  a  trolley 
rope  negligently  left  lying  on  the  floor,  does 
not  prevent  the  application  of  the  doctrine 
res  ipsa  loquitur  in  determining  liability 
for  the  injury.  Denver  City  Tramway  Co. 
v.  Hills,  36:  213,  116  Pac.  125,  60  Colo.  328. 
Digest  1-52  Ii.R.A.(N.S.) 


367.  The  doctrine  of  res  ipsa  loquitur 
applies  where  a  street  car  company  leaves 
one  end  of  the  trolley  rope  lying  on  the 
car  floor  insuch  a  way  that  a  passenger 
attempting  to  alight  from  the  car  becomes 
entangled  in  it,  and  is  thrown  and  injured 
by  the  starting  of  the  car.  Denver  City 
Tramway  Co.  v.  Hills,  36:  213,  116  Pac. 
125,  50  Colo.  328. 

368.  The  burden  rests  upon  a  passenger 
induced  to  leave  a  street  car  at  a  point  re- 
mote from  her  destination,  to  show  that  her 
subsequent  illness,  alleged  to  have  been 
caused  by  exposure  to  the  weather,  was 
due  to  such  exposure  rather  than  to  other 
causes  for  which  the  carrier  would  not  be 
responsible.  Georgia  R.  &  E.  Co.  v.  Mc- 
Allister, 7:  1 177,  54  S.  E.  957,  126  Ga.  447. 

369.  The  mere  fact  that  a  passenger  neg- 
ligently permitted  to  leave  a  street  car  at 
a  point  remote  from  her  destination  sus- 
tained an  injury  does  not  raise  a  presimip- 
tion  of  negligence  against  the  carrier;  but 
the  burden  rests  upon  the  passenger  to  prove 
the  allegations  of  fact  upon  which  she  relies 
for  a  recovery.  Georgia  R.  &  E.  Co.  v. 
McAllister,  7:  1177,  54  S.  E.  957,  126  Ga, 
447. 

370.  A  presumption  of  negligence  attends 
the  blowing  or  burning  out  of  the  controller 
on  an  electric  street  car,  to  the  injury  of 
a  passenger  on  the  car.  Firebaugh  v. 
Seattle  Electric  Co.  2:  836,  82  Pac.  995,  40 
Wash.  658. 

371.  The  operation  of  the  rule  res  ipso 
loquitur,  in  case  of  the  blowing  or  burning 
out  of  the  controller  on  an  electric  street 
car,  is  not  prevented  by  the  fact  that  the 
injury  to  the  passenger  actually  results 
from  his  leaping  from  the  car  to  escape  the 
apparent  danger.  Firebaugh  v.  Seattle 
Electric  Co.  2:  836,  82  Pac.  995,  40  Wash. 
658.  (Annotated) 

372.  One  awaiting  a  trolley  car  at  the 
usual  stopping  place,  and  injured  by  the 
falling  of  a  trolley  pole  on  the  arrival  of 
the  car,  is  entitled  to  recovs?r  damages 
against  the  railroad  company  for  the  per- 
sonal injuries  sustained,  in  the  absence  of 
any  evidence  to  rebut  the  presumption  of 
negligence,  which,  in  such  case,  must  be 
raised  against  the  company.  Cincinnati 
Traction  Co.  v.  Holzenkamp,  6:  800,  78  N. 
E.  529,  74  Ohio  St.  379.  (Annotated) 
Carriers  by  mrater. 

Loss  of  baggage,  see  infra,  378. 

373.  The  tilting  of  the  gang  plank  by 
means  of  which  a  member  of  an  excursion 
party  is  attempting  to  board  a  boat,  the 
owner  of  which  has  undertaken  to  carry 
the  party  for  a  lump  sum,  so  as  to  throw 
the  person  into  the  water,  casts  upon  the 
owner  of  the  boat  the  burden  of  showing 
that  the  accident  was  not  caused  by  negli- 
gence on  his  part.  McBride  v.  McNally, 
52:  259,  89  Atl.  1131,  243  Pa.  206. 
Baggage. 

Sufficiency  of  evidence,  see  infra,  2150,  2151. 
See  also  supra,  360. 

374.  The  loss  of  a  passenger's  baggage 
after  it  reaches  its  destination  raises  a  pre- 
sumption of  negligence  on  the  part  of  the 


1102 


EVIDENCE,  II.  h,  1. 


carrier.      Central   of   Ga.    R.    Co.   v.   Jones. 
9:  1240,  43  So.  575,  150  Ala.  379. 

375.  When  a  carrier  fails  to  deliver  bag- 
gage left  with  it  for  storage,  for  hire,  it 
has  the  burden  of  showing  that  it  was  not 
lost  through  negligence.  Milwaukee  Mirror 
&  Art  Glass  Works  v.  Chicago,  M.  &  St.  P. 
R.  Co.  38:  383,  134  N.  W.  379,  148  Wis.  173. 

376.  The  carrier  must  show  that  the  de- 
railment and  burning  of  a  car  in  which  it 
was  carrying  baggage  under  a  limited-lia- 
bility contract  was  not  due  to  its  negligence, 
in  order  to  secure  the  benefit  of  the  contract. 
Wells  V.  Great  Northern  R.  Co.  34:  818,  114 
Pac.  92,  116  Pac.  1070,  59  Or.  165. 

377.  In  the  absence  of  explanation  of  the 
loss  of  valuables  from  a  suit  case  delivered 
to  a  trainman,  to  be  conveyed  from  the 
train,  the  jury  may  infer  that  it  was  due 
to  his  negligence.    Hasbrouck  v.  New  York, 

•C.  &  H.  R.  R.  Co.  35:  537,  95  N.  E.   808, 
202  N.  Y.  363. 

378.  The  loss  by  the  oflScers  of  a  steam- 
ship of  hand  baggage  of  a  passenger  which 
they  have  undertaken  to  place  in  his  state- 
room establishes  a  prim^  facie  case  of  neg- 
ligence, which,  unexplained,  will  render  the 
company  liable  for  the  loss.  Holmes  v. 
North  German  Lloyd  S.  S.  Co.  5:  650,  77  N. 
E.  21,  184  N.  Y.  280. 

(2)   Of  freight. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

SuflBciency    of    evidence,    see    infra,    2152- 

2154. 
See  also  infra,  528. 

IiOSS. 

379.  The  burden  of  proof  is  upon  the  car- 
rier to  exempt  himself  from  liability  in 
case  of  loss  or  damage  to  goods  consigned 
to  it  for  carriage  by  showing  that  it  was 
occasioned  either  by  an  inherent  defect,  vic3, 
or'  weakness,  or  spontaneous  action  of  the 
property  itself,  by  the  act  of  a  public  enemy 
of  the  United  States  or  of  the  state,  by  act 
of  law,  or  any  irresistible  superhuman  cause. 
Duncan  v.  Great  Northern  R.  Co.  19:  952, 
118  N.  W.  826,  17  N.  D.  610. 

380.  That  loss  of  goods  delivered  to  a 
carrier  for  transportation  was  due  to  ^ts 
negligence  will  be  presumed  where  the  re- 
ceipt of  the  goods  and  failure  to  deliver  are 
shown,  and  both  loss  and  responsibility  are 
admitted.  Everett  v.  Norfolk  &  S.  R.  Co 
i:  985,  50  S.  E.  557,  138  N.  C.  68. 

381.  In  Georgia  it  is  the  general  rule  that. 
in  order  to  avail  himself  of  an  act  of  God 
as  an  excuse,  the  burden  is  upon  the  com- 
mon carrier  to  establish  not  only  that  the 
act  of  God  ultimately  occasioned  the  loss, 
but  that  his  own  negligence  did  not  con- 
tribute thereto.  Central  R.  Co.  v.  Hall,  4: 
898,  52  S.  E.  679,  124  Ga.  322. 

382.  A  prima  facie  case  is  made  against 
each  of  several  connecting  carriers  by  proof 
that  a  certain  quantity  of  goods  was  de 
livered  to  the  initial  carrier  for  shipment, 
and  that  a  less  quantity  was  received  by  the 
Jligest  1-52  I^R.A.(NJS.) 


delivering  carrier,  although  the  bill  of  lad- 
ing provides  that  no  carrier  shall  be  liable 
for  loss  not  occurring  on  its  own  road. 
Chesapeake  &  O.  R.  Co.  v.  Williams,  49:347, 
160  S.  W.  769,  156  Ky.  114. 

3cS3.  The  separating  of  two  cars  of  mer- 
chandise which  a  common  carrier's  contract 
contemplated  keeping  together  in  transit, 
whereby  the  care  taker  is  prevented  from 
attending  to  one  of  them,  loss  thereby  en- 
suing, imports  negligence,  and  the  burden  of 
proof  is  on  the  common  carrier  to  prove  that 
there  was  sufficient  cause  for  separating  the 
cars.  Whitnack  v.  Chicago,  B.  &  Q.  R,  Co. 
19:  loii,  118  N.  W.  67,  82  Neb.  464. 
Damage. 
See  also  supra,   379. 

384.  Proof  of  delivery  of  a  shipment  of 
goods  to  a  carrier  in  good  condition,  and 
of  delivery  by  it  to  th«  consignee  in  a 
damaged  state,  establishes  the  prima  facie 
liability  of  the  carrier  for  the  damage  to 
the  shipment.  Armstrong  v.  Illinois  C.  R. 
Co.  29:  671,  109  Pac.  216,  26  Okla.  352. 

385.  The  presumption  of  ncgligeiuc  on 
the  part  of  the  final  carrier  upon  the  deliv- 
ery of  fruit  in  bad  condition  will  not  pre- 
vail when  the  evidence  tends  to  locate  the 
negligence  upon  a  prior  one.  St.  Louis,  I. 
M.  &  S.  R.  Co.  V.  Renfroe,  10:  317,  100  S. 
W.  889,  82  Ark.  143. 

386.  Proof  of  the  delivery  of  property  to 
a  carrier  in  sound  condition,  and  of  its  re- 
delivery at  the  end  of  the  route  in  damaged 
condition,  or  of  a  failure  to  redeliver  it, 
makes  a  sufficient  case  to  sustain  a  recov- 
ery for  the  damage  or  loss  sustained  by  the 
shipper.  Duncan  v.  Great  Northern  R.  Co. 
19:  952,  118  N.  W.  826,  17  N.  D.  610. 

387.  Where  the  owner  accompanies  his  li^ 
stock  during  its  transportation  by  a 
carrier,  he  has  the  burden  of  showing  that 
injury  to  it  by  freezing  was  due  to  negli- 
gence on  the  part  of  the  carrier.  Colsch 
v.  Chicago,  M.  &  St.  P.  R.  Co.  34:  1013,  127 
N.  W.  198,  149  Iowa,  176. 

388.  Proof  by  a  carrier  which  has  re- 
ceived a  shipment  of  goods  in  good  con- 
dition, and  delivered  them  to  the  consignee 
in  a  damaged  state,  that  the  damage  was 
due  entirely  to  a  flood  which  amounted  to 
an  act  of  God,  overcomes  the  prima  facie 
case  against  it  arising  from  the  acceptance 
of  the  goods  in  good  condition,  and  their 
delivery  in  a  damaged  condition,  and  shifts 
the  burden  of  proof  to  the  shipper  to  show, 
in  order  to  recover,  that  negligence  on  the 
part  of  the  carrier  co-operated  with  the  act 
of  God  in  bringing  about  the  damage  to  the 
shipment.  Armstrong  v.  Illinois  C.  R.  Co. 
29:  671,  109  Pac.  216,  26  Okla.  352. 

389.  One  suing  for  the  death  of  a  hog  de- 
livered to  an  express  company  for  trans- 
portation, which  occurs  at  the  termination 
of  the  journey,  by  wagon,  to  the  station,  has 
the  burden  of  snowing  negligence  unaided 
by  presumption,  when  he  was  present  when 
the  animal  was  placed  on  the  wagon  and  ac- 
companied the  wagon  to  the  station,  so  that 
he  was  familiar  with  all  that  occurred. 
Winn  V.  American  Exp.  Co.  44:  662,  140  N. 
W.  427,  159  Iowa,  369. 


EVIDENCE,  II.  li,  1. 


1103 


Delay. 

390.  The  derailment  and  wreck  of  a  train 
carrying  freight,  by  reason  of  which  trans- 
portation is  delayed  to  the  injury  of  the 
property,  raises  a  prima  facie  inference  of 
negligence  against  the  carrier.  St.  Louis 
S.  W.  R.  Co.  V.  Wallace,  22:  379,  118  S.  W. 
412,  90  Ark.  138, 

c.  Railroads;   street  railways;   vessels, 

(See  also   same  heading  in  Digest  L.R.A 
1-10.) 

Sufficiency  of  evidence,  see  infra,  2155-2163. 
Opinion  evidence  as  to  value,  see  Evidence, 
VII.   f. 

Railroads. 

As   to    contributory   negligence,    see    infra, 

481-487. 
Validity  of  statute  creating  presumption  of 

negligence,   see   Constitutional  Law, 

623. 

391.  Some  presumption  must  be  indulged 
that  an  engineer  who  sees  a  person  on  the 
track  in  front  of  his  engine  will  give  a 
warning  signal.  Hoffard  v.  Illinois  C.  R. 
Co.  16:  797,  110  N.  W.  446,  138  Iowa,  543. 

392.  If  a  railroad  bridge  collapses,  the 
burden  is  on  the  company  to  show  the  high- 
est degree  of  practical  care  and  i-kill  in  the 
construction  of  the  bridge,  and  its  inspec- 
tion from  time  to  time  to  discover  defects. 
Hamilton  v.  Louisiana  &  N.  W.  R.  Co. 
6:  787,  41  So.  560,  117  La.  243. 

—  At  street  or  highway  crossing. 

393.  A  railroad  company  is,  in  the  ab- 
sence of  evidence,  presumed  to  have  done 
its  duty  in  approaching  a  street  crossing; 
and  no  recovery  can  be  had  for  the  death 
of  a  person  killed  at  the  crossing,  until 
this  presumption  has  been  overcome.  Han- 
na  v.  Philadelphia  &  R.  R.  Co.  4:  344,  62 
Atl.  643,  213  Pa.  157. 

394.  In  the  absence  of  proof  of  the  speed 
at  which  a  train  approached  a  road  cross- 
ing, the  presumption  is  that  the  engineer 
approached  the  crossing  with  due  care, 
measured  by  a  conscious  sense  of  the  dan- 
ger that  might  likely  be  encountered  there. 
Davis  v.  Chicago,  R.  I.  &  P.  R.  Co.  16:  424, 
159  Fed.  10,  88  C.  C.  A.  488. 

395.  That  a  conductor  of  a  train  was  not 
responsible  for  the  negligent  killing  of  a  per- 
son at  a  highway  crossing  cannot  be  assumed 
because  it  was  not  his  duty  to  keep  a  look- 
out for  persons  at  such  places,  dinger  v. 
Chesapeake  &  0.  R.  Co.  15:  998,  109  S.  W. 
315,  128  Ky.  736. 

—  Injury  to  live  stock. 

396.  The  statute  requiring  a  railroad 
company  to  prove  care  in  case  stock  is 
killed  or  injured  by  its  locomotive  does 
not  apply  to  injury  to  stock  falling  through 
a  trestle  in  fleeing  from  a  locomotive. 
Nashville,  C.  &  St.  L.  H.  Co.  v.  Garth,  46: 
430,  59  So.  640,  179  Ala.  162. 

397.  A  statute  requiring  signals  when  a 
train  approaches  a  road  crossing  is  for  the 
benefit  of  roaming  animals  as  well  as  per- 
sons, and  the  railroad  company  must,  to 
Digest  1-52  I^R.A.(N.S.) 


relieve  itself  from  the  statutory  presump- 
tion of  negligence  which  arises  from  the 
killing  of  animals  upon  its  tracks,  show 
that  it  gave  the  lequired  signals  upon  ap- 
proacliing  the  crossing  at  which  the  animals 
were  killed.  Campbell  v.  Mobile  &  0.  R. 
Co.  46:  881,  157  S.  W.  931,  154  Ky.  582. 

(Annotated) 
—  Fires. 
Sufficiency  of  evidence,  see  infra,  2158-2101. 

398.  The  inference  that  fire  was  started 
in  rubbish  on  a  railroad  right  of  way  by  a 
passing  train  is  not  destroyed  by  the  fact 
that  it  was  not  discovered  until  two,  or  two 
and  one-half,  hours  after  the  passing  of 
the  train,  where  the  community  is  sparsely 
settled,  and  the  fire,  when  first  discovered, 
was  smoldering  in  a  log,  where  it  migiit 
have  slumbered  for  hours  before  being 
communicated  to  the  surrounding  territory. 
Hawley  v.  Sumpter  Valley  R.  Co.  12:  526, 
90  Pac.  1106,  49  Or.  509. 

399.  The  fact  that  the  setting  of  a  fire 
by  a  railroad  locomotive  has  been  proved 
by  circumstantial  evidence  does  not  prevent 
the  presumption  of  negligence  on  the  part 
of  the  defendant,  arising  under  the  rule 
casting  the  burden  of  rebutting  that  pre- 
sumption on  the  defendant.  Osburn  v.  Ore- 
gon R.  &  Nav.  Co,  19:  742,  98  Pac.  627,  15 
Idaho,  478. 

400.  A  prima  facie  case  is  established 
against  a  railroad  company  for  the  de- 
struction of  property  by  fire  set  by  sparks 
from  a  locomotive,  by  proof  tiiat  fire  has 
been  communicated  from  the  company's  en- 
gine to  the  property,  which  resulted  in  its 
destruction,  since  such  proof  raises  a  pre- 
sumption of  negligence  either  in  construc- 
tion and  equipment,  or  in  management  and 
operation  of  its  engine,  which  it  is  neces- 
sary for  the  defendant  to  rebut.  Osburn 
V.  Oregon  R.  &  Nav,  Co.  19:  742,  98  Pac. 
627,  15  Idaho,  478. 

401.  In  an  action  against  a  railroad  com- 
pany for  the  destruction  of  property  by 
fire  set  by  sparks  from  the  company's  loco- 
motive, proof  of  actual  negligence  or  want 
of  ordinary  care  must  be  made  by  complain- 
ant, when  the  presumption  of  negligence 
which  arises  upon  the  establishment  of  the 
fact  that  the  fire  was  communicated  from 
the  engine  to  the  property  destroyed  is  re- 
butted by  proof  of  proper  appliances  and 
careful  management  and  operation.  Osburn 
V.  Oregon  R.  &  Nav.  Co.  19:  742,  98  Pac. 
627,  15  Idaho,  478. 

402.  In  an  action  against  a  railroad  com- 
pany for  damages  caused  by  fire  shown  to 
have  been  kindled  by  sparks  from  a  loco- 
motive, the  provision  of  Minn.  Cen.  Stat. 
1894,  §  2700,  that  the  owner  of  property 
burned  by  fire  thrown  from  an  engine  can 
recover  without  showing  defects  in  the  en- 
gine or  negligence  on  the  part  of  the  em- 
ployees, throws  the  burden  of  proof  upon 
the  railroad  company  to  rebut  the  presump- 
tion of  actionable  negligence  on  its  part. 
Continental  Ins.  Co.  v.  Chicago  &  N.  W.  R. 
Co.  5:  99,  107  N.  W.  548,  97  Minn.  467. 

403.  A  presumption  of  negligence  arises 
from  a  violent   impact  of  a   train   against 


1104 


EVIDENCE,  11.  h,  1. 


another  which  it  is  following  upon  thu 
same  track,  so  as  to  telescope  several  cars, 
and  start  a  conflagration  which  sots  fire  to 
neighboring  property,  which  shifts  the  bur 
den  of  showing  care  to  the  railroad  com- 
pany. Cincinnati,  N.  O.  &  T.  P.  K.  Co.  v. 
South  Fork  Coal  Co.  i:  533,  139  Fed.  528,  71 
C.  C.  A.  316. 
Street  railx^ays. 
As  injuries  to  passengers,   see  supra,   347, 

348,  353-356,  362-372. 
As   to    contributory    negligence,    see    infra, 

488-491. 
Sufficiency  of  evidence,  see  infra,  2164-2166. 

404.  A  street  railway  company  which  em- 
ploys a  minor  a?  motorman  on  its  car  has, 
in  case  of  injury  to  a  child  through  colli- 
sion with  the  car,  a  greater  burden  of  show- 
ing that  the  accident  was  not  due  to  his 
incompetence  than  though  he  had  been  ma 
ture.  Cloud  v.  Alexandria  Electric  R.  Co. 
18:  371,  46   So.   1017,   121   La.   1061. 

405.  The  doctrine  of  res  ipsa  loquitur 
does  not  apply  to  the  fall  of  sparks  from 
the  machinery  of  an  elevated  train  law- 
fully operated  in  a  public  street,  to  the  in- 
jury of  a  person  in  the  street  below.  Car- 
ney V.  Boston  Elevated  R.  Co.  42:  90,  98  N. 
E.  605,  212  Mass.  179. 

406.  In  a  suit  against  a  street  railway 
company  for  the  death  of  a  pedestrian, 
struck  by  a  car  which  left  the  track  be- 
cause of  the  splitting  of  a  switch,  proof  of 
the  accident  is  sufficient  to  charge  the  com- 
pany with  negligence,  in  the  absence  of 
proof  to  the  contrary,  and  to  place  upon  it 
the  burden  of  showing  that  the  injuries 
were  not  received  through  any  fault  on  its 
part.  Najarian  v.  Jersey  City,  H.  &  P. 
Street  R.  Co.  (N.  J.  Err.  &  App.)  23:  751, 
73  Atl.  627,  77  N.  J.  L.  704.       (Annotated) 

407.  The  maxim  Res  ipsa  liquitur  will  not 
apply  to  establish  on  the  part  of  a  street 
car  company  liability  for  injury  to  a  pas- 
ser-by by  a  missile  thrown  from  under  a 
car,  where  both  the  act  which  caused  the 
injury  and  the  negligence  of  the  street  car 
company  in  relation  thereto  would  have  to 
be  inferred  from  the  accident.  De  GIop- 
per  V.  Nashville  R.  &  Liwht  Co.  33:  913,  134 
S.  W.  609,  123  Tenn.  633. 

• 
d.  Electric  companies. 

(See  also   same   heading   in  Digest  L.R.A 
1-10.) 

See  also  infra,  468. 

408.  Sufficient  prima  facie  evidence  of 
negligence  on  the  part  of  an  electric  com- 
pany is  shown  by  the  unexplained  fact  that 
a  person  on  the  surface  of  the  highway  was 
injured  by  contact  with  a  hanging  or  fallen 
charged  wire.  Walter  v.  Baltimore  Electric 
Co.  22:  1 178,  71  Atl.  953,  109  Md.  513. 

(Annotated) 

409.  The  negligence  of  an  electric  light 
company  cannot  be  established  by  the  aid  of 
the  doctrine  res  ipsa  loquitur  in  case  of  an 
injury  to  a  customer  by  a  shock  received 
while  handling  a  light  bulb,  where  the  wir- 
^ieest  1-52  I*IUft..(NJS.) 


ing  on  his  own  premises  was  done  by  the- 
customer,  and  all  fixtures  there  were  owned 
and  controlled  by  him;  while  the  accident 
is  shown  not  to  have  been  due  to  anything 
under  the  control  of  the  company.  Peters- 
v.  Lynchburg  Light  &  T.  Co.  22:  1188,  61  S. 
E.  745,  108  Va.  333. 

410.  The  doctrine  of  res  ipsa  loriuitur 
cannot  be  invoked  to  hold  liable  an  eh  ctric 
company  furnishing  a  current  of  electricity 
to  a  private  building,  connected  with  in- 
side wiring  owned  by,  and  under  the  exclu- 
sive control  of,  the  owner  of  the  building, 
for  an  injury  resulting  directly  from  the  im- 
perfect insulation  and  condition  of  such 
inside  wiring,  merely  because  the  electric 
company  is  producing  and  furnishing  the 
dangerous  and  subtle  element  of  electricity 
under  a  contract  with  such  owner.  Min- 
nesota General  Elec.  Co.  v.  Cronon,  20:  816, 
166  Fed.  651,  92  C.  C.  A.  345. 

Electric  railmray. 

411.  An  electric  railway  company  cannot 
be  held  liable  for  injury  to  a  person  on  the 
street  by  the  breaking  of  its  trolley  wire, 
on  the  ground  that  there  is  no  other  appar- 
ent cause  for  the  break  than  the  negligence 
of  the  company.  Lanning  v.  Pittsburg  Rail- 
ways Co.  32:  1043,  79  Atl.  136,  229  Pa.  575, 

(Annotated) 

e.  Master  and  servant. 

(See  also   same   heading  in  Digest  L.R.A. 
1-10.) 

As  to  infant  servant's  mental  capacity,  see 

supra,    211-217. 
EflFect    of    statutes    creating    presumption 

to  take  away  defense  of  assumption  of 

risk,    see   Master   and   Servant,   544, 

545. 
See    also    infra,    2120,    2129;    Master   and 

Servant,  291,  292. 

412.  The  relation  of  employer  and  em- 
ployee is  not  per  se  inimical  to  the  applica- 
tion of  the  maxim  Res  ipsa  loquitur,  in 
case  of  injuries  received  by  the  employee 
in  the  course  of  his  employment.  Merceau 
V.  Rutland  R.  Co.  51:  1221,  105  N.  E.  206, 
211  N.  Y.  203, 

413.  The  doctrine  of  res  ipsa  loquitur  ap- 
plies in  case  of  injury  to  a  servant  through- 
the  alleged  negligence  of  the  master,  where 
the  facts  eliminate  blame  on  the  part  of  the 
servant  or  his  fellow  servants,  but  show 
prima  facie  negligence  on  the  part  of  some- 
one. La  Bee  v.  Sultan  Logging  Co.  20:  405, 
91   Pac.  560,  47  Wash.  57. 

414.  The  rule  res  ipsa  loquitur  applies  in 
a  proper  case  between  master  and  servant  as 
well  as  between  carrier  and  passenger,  but 
its  application  as  between  the  former  is 
limited  to  that  class  of  cases  which  is  not 
susceptible  of  direct  and  positive  proof  by 
living  witnesses,  and  the  rule  is  resorted  to 
only  as  a  last  resort  in  order  to  prevent  a 
miscarriage  of  justice.  Klebe  v.  Parker  Dis- 
tilling Co.  13:  140,  105  S.  W.  1057,  207  Mo. 
480. 

415.  In  an  action  by  an  employee  against 


EVIDENCE,  II.  h,  1. 


1105 


his  employer,  the  fact  of  accident  carries 
with  it  no  presumption  of  negligence  on  the 
part  of  the  employer,  but  such  negligence 
is  an  affirmative  fact  for  the  injured  em- 
ployee to  establish  by  the  evidence. 
Phoenix  Printing  Co.  v.  Durham,  38:  1191, 
122  Pac.  708,  J2  Okla.  575. 

416.  Under  certain  circumstances,  the 
maxim.  Res  ipsa  loquitur,  may  apply  in  an 
action  brought  by  a  servant  against  his 
master  for  injury  caused  by  an  agency  of 
the  master,  since  the  application  of  the 
maxim  does  not  ordinarily  depend  upon  the 
relation  between  the  parties,  except  in- 
directly, so  far  as  that  relation  defines  the 
measure  of  duty  imposed  on  the  defendant. 
Jenkins  v.  St.  Paul  City  R.  Co.  20:  401,  117 
N.  W.  928,  105  Minn.  504. 

417.  The  presumption  of  fact  in  favor 
of  the  master  having  performed  his  duty 
to  furnish  servants  a  reasonably  safe  work- 
ing place,  instrumentalities,  and  fellow  serv- 
ants, is  overcome  by  evidence  establishing 
the  contrary  to  a  reasonable  certainty. 
Knudsen  v.  La  Crosse  Stone  Co.  33:  223, 
130  N.  W.  519,  145  Wis.  394. 

418.  Actionable  negligence  on  the  part 
of  the  owner  of  a  building  in  maintaining  a 
window  the  glass  of  which  broke  and  in- 
jured an  employee  whose  duty  was  to  open 
and  close  the  window,  is  not  shown  by  the 
mere  happening  of  the  accident,  where  there 
is  nothing  to  show  the  efficient  cause  of  the 
accident.  Stewart  &  Co.  v.  Harman,  20: 
228,  70  Atl.  333,  108  Md.  446. 

419.  In  an  action  for  injuries  resulting 
from  the  taking  of  an  X-ray  picture  of  the 
injury  of  an  employee  of  a  telephone  com- 
pany, by  a  servant  of  such  company,  where 
the  instrumentality  is  under  the  exclusive 
control  of  the  company,  and  where  there  is 
evidence  that  injury  to  the  subject  is  not  a 
necessary  result  of  the  taking  of  such  a  pic- 
ture if  proper  instruments  and  proper  care 
are  used,  and  evidence  that  such  injury  did 
result  in  this  case,  the  doctrine  of  res  ipsa 
loquitur  applies,  and  the  company  not  hav 
ing  shown  conclusively  that  it  was  not  neg- 
ligent, a  judgment  for  the  employee  upon 
a  verdict  in  his  favor  will  not  be  disturbed. 
Jones  V.  Tri-State  Teleph.  &  Teleg.  Co.  40: 
485,  136  N.  W.  741,  118  Minn.  217. 
Fall  of  wall  or  bnilding. 

420.  The  mere  fall  of  a  square  brick 
stack,  erected  in  a  building  to  provide  safe- 
ty vaults  on  different  floors,  after  the 
building  has  been  destroyed  by  fire  and 
while  salvors  are  at  work  in  the  debris, 
is  not  sufficient  to  show  negligence  on  the 
part  of  the  master  salvor,  so  as  to  render 
him  liable  for  injury  thereby  caused  to  his 
employee.  Cans  Salvage  Co.  v.  Byrnes,  i: 
.272,  62  Atl.  155,  102  I'l.  230. 

421.  The  doctrine  of  res  ipsa  loquitur 
does  not  apply  to  the  fall  of  a  temporary 
shed  erected  during  the  construction  of  a 
building  for  the  protection  of  machinery, 
while  employees  are  removing  it  after  it 
has  served  its  purpose,  so  as  to  render  the 
master  liable  to  an  employee  injured  by 
such  fall,  without  further  evidence  of  negli- 
Digest  1-52  L.R.A.(NJS.) 


gence   on   his   part.     Pcrrick   v.   Eidlitz,  24: 
837,  88  N.  E.  33,  195  N.  Y.  248. 
Fall  of  scaffold. 

422.  The  fall  of  a  scaffold  upon  which 
men  are  sent  to  work  does  not  of  itself 
show  that  it  must  have  fallen  because 
something  was  the  matter  with  it,  where 
it  appears  that  ai  the  time  of  the  fall 
the  men  were  trying  to  break  the  connec- 
tion of  a  pipe,  and  were  pressing  against 
the  scaffold  with  all  their  strength,  which 
may  have  subjected  it  to  excessive  strain. 
Robinson  v.  Consolidated  Gas  Co.  28:  586, 
86  N.  E.  805,  194  N.  Y.  37.  (Annotated) 
FlevatoTs. 

423.  That  an  elevator  provided  for  use  of 
an  employee  falls  when  at  rest,  without  ap- 
parent cause,  and  that  it  has  broken  down 
^nd  been  repaired  twice  within  a  few 
months,  may  justify  a  finding  ol  negligence 
on  the  part  of  the  master.  Young  v.  Mason 
Stable  Co.  21:  592,  86  N.  E.  15,  193  N.  Y. 
188. 
Defective  appliances. 

424.  The  jury  may  infer  the  existence  of 
a  defect  in  the  mechanism  of  an  appliance, 
even  in  case  of  injury  to  an  employee, 
where  the  evidence  excludes  all  other  causes 
for  the  accident.  Byers  v.  Carnegie  Steel 
Co.   16:  214,   159  Fed.  347,  86  C.  C.  A.  347. 

425.  Evidence  that  an  appliance  furnished 
by  a  master  for  a  particular  purpose  breaks 
while  being  used  in  a  proper  manner  for 
that  purpose  is  sufficient  to  establish  a 
prima  facie  case  of  negligence  against  the 
master.  La  Bee  v.  Sultan  Logging  Co.  20: 
405,  91  Pac.  560,  47  Wash.  57. 
Unsafe    machinery    generally. 

426.  A  servant  injured  by  the  unsafe  con- 
dition of  a  machine  is  not,  in  order  to  hold 
the  master  liable  for  the  injury,  bound  to 
point  out  the  particular  defect  which  ren- 
dered the  machine  unsafe.  Tuckett  v. 
American  Steam  &  Hand  Laundry,  4:  990, 
84  Pac.  500,  30  Utah,  273. 

427.  From  an  unexplained  automatic 
starting  to  the  injury  of  an  employee,  of  a 
comparatively  new  machine,  when  it  ought 
to  have  remained  at  rest,  the  jury  may  infer 
negligence  on  the  part  of  the  employer. 
Chiuccariello  v.  Campbell,  44:  1050,  96  N. 
E.   1101,  210  Mass.  532.  (Annotated) 

428.  In  an  action  to  recover  damages  for 
personal  injuries  sustained  by  an  employee 
injured  by  the  blowing  out  of  a  cylinder 
head,  the  burden  rests  upon  him  to  show 
that  the  injury  was  due  to  the  defective 
condition  of  the  machinery,  and  that  the 
employer  knew,  or  could  have  known,  of 
such  defect  by  reasonable  care,  and  did  not 
provide  a  safe  place  for  his  en-ployees  to 
work  in.  Comer  v.  W.  M.  Ritter  Lumber 
Co.  6:  552,  53  S.  E.  906,  59  W.  Va.  688. 

429.  The  derailment  and  overturning  of  a 
freight  car  in  a  train  is  not  such  evidence  of 
negligence  on  the  part  of  the  railroad  com- 
pany towards  its  brakeman  as  to  cast  upon 
it  the  burden  of  exonerating  itself  from  the 
charge  of  negligence  to  absolve  itself  from 
liability  for  injury  to  him  thereby.  Henson 
V.  Lehigh  Valley  R.  Co.  19:  790,  87  N.  E. 
85,  194  N.  Y.  205. 

70 


1106 


EVIDENCE,  II.  h,  1. 


430.  Negligence  of  the  master,  rendering 
him  liable  for  injury  to  his  employee  for 
personal  injuries  due  proximately  to  the 
erratic  operatioii  of  a  machine,  may  be  in- 
ferred where  the  character  of  the  accident 
and  the  circumstances  under  which  it  oc- 
curs point  strongly  to  a  condition  which  is 
abnormal  and  dangerous,  which  has  long 
continued  under  circumstances  indicating 
that  the  employer,  by  the  exercise  of  rea- 
sonable care,  should  have  known  of  it,  and 
the  evidence  excludes  knowledge,  negli- 
gence, and  assumption  of  risk  on  the  part  of 
the  employee,  notwithstanding  the  absence 
of  direct  testimony  by  personal  observa- 
tion of  the  existence  of  the  specific  defect 
alleged  to  have  caused  the  accident.  Byers 
V.  Carnegie  Steel  Co.  i6:  214,  159  Fed.  347, 
86  C.  C.  A.  347. 

431.  Failure  of  a  device  installed  by  a 
master  to  stop  machinery  in  case  a  serv- 
ant becomes  caught  therein  to  work  when 
the  need  of  it  arises  is  prima  facie  evidence 
of  negligence  on  the  part  of  the  master. 
Scheurer  v.  Banner  Rubber  Co.  28:  1207,  126 
S.  W.  1037,  227  Mo.  347. 

Unguarded  machinery. 

432.  In  an  action  for  death  of  a  servant, 
under  a  factory  act  requiring  certain  safe- 
guards to  machinery,  where  practicable,  and 
giving  a  right  of  action  for  death  or  injury 
in  any  case  wherein  the  absence  of  any  of 
the  safeguards  or  precautions  required  by 
the  act  shall  directly  contribute  thereto,  it 
is  not  necessary  for  the  plaintiff  to  prove 
in  the  first  instance  that  it  was  practicable 
to  guard  the  machinery  which  caused  the 
death.  Caspar  v.  Lewin,  49:  526,  109  Pac. 
657,  82  Kan.  604. 

Employees   in  mine. 

433.  The  fact  of  an  explosion  in  a  coal 
mine  is  not  prima  facie  evidence  of  action- 
able negligence  on  the  part  of  the  owner  or 
operator  of  the  mine.  The  rule  res  ipsa 
loquitur  does  not  apply.  Dickinson  v.  Stu- 
art Colliery  Co.  43:  335,  76  S.  E.  654,  71 
W.  Va.  325. 

434.  The  doctrine  of  res  ipsa  loquitur  does 
not  apply  in  case  of  injury  to  a  mine  em- 
ployee by  explosion  of  powder  through  the 
crossing  of  electric  wires,  where  they  were 
properly  erected,  and  there  was  no  reason 
to  contemplate  that  they  could  become 
crossed  in  so  short  a  time  after  they  were 
erected,  and  there  is  nothing  to  show  that 
they  were  in  such  a  condition  before  the 
accident  ,that  the  exercise  of  ordinary  care 
in  their  inspection  would  have  disclosed  a 
defect.  Western  Coal  &  M.  Co.  v.  Garner, 
22:  1183,  112  S.  W.  392,  87  Ark.  190. 

( Annotated ) 
Railroad  employees. 

435.  The  mere  exclamation  of  a  track 
hand  immediately  after  he  had  dropped  his 
corner  of  a  hand  car  which  a  repair  gang 
was  removing  from  the  track,  that  he  did 
not  mean  to  do  so,  is  not  sufficient  to  over- 
come the  presumption  of  negligence  arising 
from  his  act.  Cahill  v.  Illinois  C.  R.  Co. 
28:  II2I,   125  N.   W.   331,   148   Iowa,  241. 

436.  The  applicability  of  the  maxim.  Res 
ipsa  loquitur,  is  shown  in  an  action  by  a 
Digest  1-52   KR.A.(N.S.) 


locomotive  fireman  suing  under  the  em- 
ployers' liability  act,  by  evidence  that  he 
was  injured  by  an  explosion  in  the  fire  box 
of  the  engine,  that  only  partly  successful 
attempts  had  been  made  to  repair  leaky 
valves  which  had  been  found  to  be  loose, 
and  could  be  inspected  only  by  taking  out 
the  brick  arch  when  the  engine  was  not 
in  steam,  and  that  after  the  injury  a  flue 
was  found  to  have  been  blown  out  of  its 
place,  and  is  not  defeated  by  the  facts  tliat 
the  engine  was  of  modern  type  and  a  year 
before  the  accident  had  been  put  in  perfect 
repair.  Marceau  v.  Rutland  R.  Co.  51:  1221, 
105  N.  E.  206,  211  N.  Y.  203. 

437.  The  mere  fact  that  a  railroad  bridge 
was  carried  away  by  the  high  water  of  the 
creek  which  it  spanned,  taking  with  it  a 
portion  of  a  train,  and  killing  a  brakeman, 
does  not  place  upon  the  railroad  cunipaiiy 
the  burden  of  disproving  its  negligence  to 
avoid  liability  for  the  death  of  the  em- 
ployee. Johns  V.  Pennsylvania  R.  Co.  28: 
591,  75  Atl.  408,  226  Pa.  319.       (Annotated) 

438.  The  doctrine  res  ipsa  loquitur  ap- 
plies where  one  employed  in  caring  for  a 
locomotive  is  injured  by  a  heavy  lump  of 
coal  falling  in  the  process  of  transferring 
it  from  an  adjoining  car  to  the  tender  of  the 
locomotive.  Fitzgerald  v.  Southern  R.  Co. 
6:  337,  64  S.  E.  391,  141  N.  C.  530. 

(Annotated) 

439.  Where  a  car  is  received  from  another 
company  to  be  switched  to  its  destination 
within  a  city  without  any  inspection  as  to 
its  condition,  it  cannot  be  inferred,  when  it 
is  discovered  that  the  coupling  apparatus  is 
so  defective  as  not  to  meet  the  requirements 
of  the  safety-appliance  act  of  Congress, 
which  fact  is  discovered  en  route,  that  the 
break  in  the  apparatus  occurred  at  the  time 
it  was  discovered  to  be  out  of  order.  Chi- 
cago, M.  &  St.  P.  R.  Co.  V.  United  States 
20;  473,  165  Fed.  423,  91  C.  C.  A.  373. 

440.  Waiver  of  a  rule  requiring  brake- 
men  to  be  on  top  of  the  train  when  approach- 
ing and  passing  stations  may  be  found  from 
the  fact  that  it  was  habitually  violated 
with  knowledge  of  those  whose  duty  it  was 
to  report  such  violations.  Duncan  v.  At- 
chison, T.  &  S.  F.  R.  Co.  51:  565,  119  Pac. 
356,  86  Kan.   112. 

f.  Miscellaneous. 

(fiee  also   same   heading   in  Digest   L.R.A. 
1-10.) 

See  also  Pleading,  285;  Tbial,  577. 

441.  Where  an  injury  arises  from  the 
bringing  upon  land  of  something  not  inci- 
dental to  its  ordinary  use,  but  which  if  it 
escapes  is  liable  to  do  injury,  the  burden  of 
proof  is  not  on  the  person  injured  by  such 
agency  to  show  that  the  thing  introduced 
onto  the  land  was,  to  the  knowledge  of  the 
defendant,  likely  to  escape  and  cause  dam- 
age; but  it  is  incumbent  on  the  defendant, 
in  order  to  exonerate  himself,  to  show  not 
merely  that  he  did  not  know  that  the  thing 
which  has  escaped  from  his  land  was  likely 


EVIDENCE,  II.  h,  1. 


1107 


to  do  the  damage  complained  of,  but  that 
the  thing  was,  according  to  the  common  ex- 
perience of  mankind,  not  likely  to  cause 
mischief.  West  v.  Bristol  Tramways  Co. 
4  B.  R.  C.  243,  [1908]  2  K.  B.  14.  Also 
Reported  in  77  L.  J.  K.  B.  N.  S.  684,  72 
J.  P.  243,  99  L.  T.  N.  S.  264,  24  Times  L. 
R.  478,  54  Sol.  Jo.  393,  6  L.  G.  R.  609. 

442.  The  bursting  of  a  tank  in  which 
•one  has  artificially  stored  water  upon  his 
property,  and  the  escape  of  the  water  to 
the  injury  of  neighboring  property,  raises 
a  presumption  of  negligence.  Weaver  Mer- 
cantile Co.  V.  Thurmond,  33:  1061,  70  S.  E. 
126,  68  W.  Va.  530. 

443.  The  sudden  sinking  of  a  sidewalk  un- 
der the  weight  of  a  pedestrian,  to  his  in- 
jury, is,  under  the  doctrine  of  res  ipsa  lo- 
quitur, evidence  of  negligence  on  the  part 
of  a  contractor  who,  in  the  execution  of 
public  work,  took  up  and  relaid  the  walk. 
Rockwell  V.  McGovern,  23:  1022,  88  N.  E. 
436,  202  Mass.  6.  (Annotated) 

444.  In  the  absence  of  evidence  as  to  how 
long  a  cart  which  the  driver  was  attempt- 
ing to  repair  in  a  public  street  had  been  out 
of  repair,  or  what  caused  it  to  be  so,  it 
maj  be  found  that  it  would  not  have  been 
out  of  repair  but  for  the  negligence  of  the 
owner.  Hollidge  v.  Duncan,  17:  982,  85  N. 
E.  186,  199  Mass.  121. 

445.  The  maxim.  Res  ipsa  loquitur,  ap- 
plies to  the  destruction  of  trees  on  a  boule- 
vard in  front  of  plaintiff's  premises  by  gas 
which  escaped  from  the  mains  of  the  defend- 
ant company,  where  the  leak  was  due  to 
the  action  of  frost  in  the  winter,  and  was 
not  discovered  by  the  company  until  the 
following  June.  Gould  v.  Winona  Gas  Co. 
10:  889,  111  N.  W.  254,  100  Minn.  258. 

Of   municipal    corporation. 

446.  In  an  action  against  a  municipality 
for  personal  injuries,  there  is  no  presump- 
tion that  either  plaintiff  or  defendant  was 
guilty  of  negligence.  Oklahoma  City  v. 
Reed,  33:  1083,  87  Pac.  645,  17  Okla.  518. 

447.  The  rule  res  ipsa  loquitur  cannot  be 
invoked  to  establish  the  liability  of  a  mu- 
nicipal corporation  for  injury  to  a  pedes- 
trian through  the  collapse,  under  his  weight, 
of  a  flagstone  forming  part  of  the  covering 
of  a  culvert  across  a  street.  Corbin  v.  Ben- 
ton, 43:  591,  152  S.  W.  241,  161  Ky.  483. 

(Annotated) 

448.  In  the  absence  of  proof  that  the 
breaking  of  a  municipal  water  tank  was 
caused  by  some  superior  force,  such  as  an 
unusual  and  violent  disturbance  of  the  ele- 
ments, or  an  explosion  clandestinely  caused, 
negligence  will  be  inferred  from  the  break- 
ing.  Wigal  v.  Parkersburg,  52:  465,  81  S. 
E.  554,  —  W.  Va.  — . 

Of  bailee. 

449.  Where  a  hired  horse  injured  while 
in  possession  of  the  bailee  was  at  the  time 
in  charge  of  a  driver  furnished  by  the 
owner,  the  bailee  is  not  bound  to  establish 
his  freedom  from  negligence  in  the  first  in- 
stance, but  the  burden  of  showing  his  neg- 
ligence is  on  the  owner.  Weller  v.  Camp, 
a8:  1 106,  52  So.  829,  169  Ala.  275. 
Digest   1-52  L.R.A.(N.S.) 


450.  In  an  action  againt  a  bailee  for  loss 
of  property,  where  it  is  alleged  that  the 
loss  was  occasioned  by  a  fire,  and  tliat  such 
fire  was  caused  by  the  negligence  of  the 
bailee,  the  burden  of  proving  such  negligence 
is  upon  the  plaintiff,  and  such  proof  must 
outweigh  any  affirmative  defense  interposed 
by  the  defendant,  before  the  plaintilT  is  en- 
titled to  recover.  Stone  v.  Case,  43:  1168, 
124  Pac.  960,   34  Okla.  5.  (Annotated) 

451.  Where,  in  an  action  by  the  bailor 
against  the  bailee  upon  an  ordinary  con- 
tract of  nongratuitous  bailment,  the  de- 
fendant admits  the  receipt  of  the  prop- 
erty and  his  inability  to  return  it,  a  prima 
facie  breach  of  the  contract  is  thereby  es- 
tablished, to  meet  which  it  devolves  upon 
the  defendant  to  prove  that  he  exercised 
ordinary  care  in  keeping  the  property. 
Travelers'  Indemnity  Co.  v.  Fawkes,  45: 
331,  139  N.  W.  703,  120  Minn.  353. 

452.  The  bailor  of  property  in  possession 
of  a  carrier  holding  as  a  warehouseman  has 
the  burden  of  showing  negligence  on  its 
part  in  case  the  property  is  destroyed  by 
fire, — at  least,  where  the  fire  destroyed  also 
the  property  of  the  bailee.  Yazoo  &  M.  V. 
R.  Co.  V.  Hughes,  22:  975,  47  So.  662,  94 
Miss.  242.  (Annotated) 
Of  livery  stable  keeper. 

453.  To  hold  a  livery  stable  keeper  liable 
for  injury  inflicted  by  a  vicious  horse  let 
by  him,  upon  the  customer,  the  latter  must 
show  that  the  animal  was  vicious  and  un- 
suitable for  the  purpose  for  which  it  was 
hired,  and  that  the  liveryman  knew,  or  by 
the  exercise  of  reasonable  care  should  have 
known,  that  fact.  Conn  v.  Hunsberger, 
25:  372,  73'Atl.  324,  224  Pa.  154. 

Of  innkeeper. 

454.  An  innkeeper  has  the  burden  of  ab- 
solving himself  from  negligence  when  a 
guest  shows  a  personal  injury  by  the  fall 
upon  him  of  the  upper  portion  of  a  folding 
bed  which  he  is  occupying.  Lvttle  v.  Denny, 
20:  1027,  71  Atl.  841,  222  Pa.  395. 

(Annotated) 
Of  telepbone  company. 

455.  A  telephone  company  is  bound  to 
negative  only  the  negligence  charged  against 
it,  where  specific  acts  of  negligence  are 
charged  in  the  complaint  for  failure  prompt- 
ly to  make  a  connection  for  a  customer,  al- 
though the  statute  provides  that  in  case 
of  delay  it  has  the  burden  of  proof  that 
such  delay  was  not  due  to  negligence  on 
its  part.  Volquardsen  v.  Iowa  Teleph.  Co. 
28:  554,  126  N.  W.  928,  148  Iowa,  77. 
Falling  or  flying  objects. 

456.  Negligence  on  the  part  of  a  store- 
keeper may  be  inferred  from  the  fall  of  a 
basket  of  a  carrier  system  upon  a  customer, 
to  his  injury.  Anderson  v.  McCarthy  Dry 
Goods  Co.  16:  931,  95  Pac.  325,  49  Wash.  398. 

(Annotated) 

457.  The  doctrine  res  ipsa  loquitur  ap- 
plies where  the  head  of  a  mallet  having  no 
patent  defect,  which  is  used  by  patrons  of 
an  attraction  in  an  amusement  park,  flies 
off  to  the  injury  of  one  using  it  for  the  pur- 
pose for  which  it  was  intended,  so  that  the 


1108 


EVIDENCE,  II,  h,  2. 


owner,  to  avoid  liability  for  the  resulting 

injury,  lias  the  burden  of  showing  freedom 

from    negligence.      VVodnik    v.    Luna    Park 

Amusement   Co.   42:  1070,   125  Pac.   941,   69 

Wash.  638. 

Fall  of  building. 

Injury  to  employee,  see  supra,  420,  421. 

458.  The  mere  fall  of  a  stand  erected  by  a 
park  commission  in  a  public  park  for  the  ac- 
commodation of  the  public  raises  no  pre- 
sumption of  negligence.  Denver  v.  Spencer, 
2:  147,  82  Pac.  590,  34  Colo.  270. 
Runaw^ay. 

459.  The  mere  running  away  of  a  team 
does  not  imply  negligence  on  the  part  of  the 
owner.  Coller  v.  Knox,  23:  171,  71  Atl.  539, 
222   Pa.  362.  (Annotated) 

460.  The  owner  of  a  runaway  horse  which 
inflicted  injury  on  a  person  has  the  burden 
of  proving  that  he  was  himself  without  the 
slightest  fault,  and  did  all  that  was  possible 
to  prevent  the  injury.  Damonte  v.  Patton, 
8:  209,  43  So.  153,  118  La.  530. 

461.  The  unexplained  presence  upon  a 
public  highway  of  a  runaway  horse  har- 
nessed to  a  wagon,  unattended  by  the  owner 
or  other  person,  is  prima  facie  evidence  of 
negligence  on  the  part  of  the  owner.  Den- 
nery  v.  Great  Atlantic  &  Pacific  Tea  Com- 
pany (N.  J.  Err.  &  App.)  39:  574,  81  Atl. 
861,  82  N.  J.  L.  517.  (Annotated) 
Explosion. 

As  to  cause,  see  supra,  323, 

Sufficiency-  of  presumption  to  take  question 

to  jury,  see  Trial,  126. 
See  also  supra,  326. 

462.  A  prima  facie  case  of  negligence  on 
the  part  of  a  gas  company  is  shown  by  evi- 
dence that  gas  leaked  from  a  cap  which  it 
had  placed  on  a  pipe  leading  into  a  house, 
in  such  quantities  that  when  a  light  was 
brought  near  it,  the  gas  exploded  and  set 
fire  to  the  house.  Louisville  Gas  Co.  v. 
Guelat,  42:  703,  150  S.  W.  656,  150  Ky.  583. 

463.  The  doctrine  of  res  ipsa  loquitur  ob- 
tains in  cape  of  an  explosion  in  a  starch 
factory,  throwing  the  walls  outward  upon 
a  person  passing  upon  the  adjoining  high- 
way, placing  upon  the  owner  of  the  factory 
the  burden  of  explaining  the  cause  of  the 
explosion  and  showing  that  it  was  not 
caused  by  his  negligence.  Kearner  v. 
Charles  S.  Tanner  Co.  29:  537,  76  Atl.  833, 
31  R.  I.  203. 

Fires. 

Railroad  fires,  see  supra,  398-403. 

464.  Setting  fire  by  sparks  escaping  from 
a  threshing-machine  engine  raises  the  pre- 
sumption of  negligence,  and  casts  the  bur- 
den of  showing  care  upon  the  owner  of  the 
engine.  Martin  v.  McCrary,  i:  530,  89  S. 
W.  324,  115  Tenn.  316. 
Antoniobiles. 

Injury  to  passenger,  see  supra,  343, 

465.  No  presumption  of  negligence  on  the 
part  of  the  driver  of  an  automobile  arises 
from  the  mere  fact  that  he  runs  down  and 
injures  a  pedestrian  on  a  public  street. 
Millsaps  v.  Brogdon,  32:  1177,  134  S.  W. 
632,  97  Ark.  469.  (Annotated) 
Elevators. 

See  also  supra,  92,  423. 
Digest  1-52  L.R.A.(N.S.) 


466.  Tlie    fall    of    a    loaded    elevator   af- 
fords  prima  facie  evidence  of  negligence  iiv 
the  person  charged  with  the  duty  of  oper- 
ating it.     Edwards  v.  Manufacturers'  BIdg 
Co.  2:  744,  61  Atl.  646,  27  R.  L  248. 

467.  A  passenger  injured  by  the  fall  of 
an  elevator  may  recover  upon  showing  tlie 
accident  and  the  attendant  circumstances 
and  conditions,  from  which  negligence  will 
be  presumed,  without  showing  the  actual 
negligence  which  caused  the  accident,  un- 
less defendant  shows  that  he  exercised  due 
care.  Orcutt  v.  Century  BIdg.  Co.  8:  020. 
99  S.  W.  1062,  201  Mo.  424. 
Electrical  appliances. 

468.  If  a  person,  at  a  place  where  he  ha» 
right  to  be,  is  injured  by  contact  with  an 
electric  light  wire,  there  is  a  prima  facie 
presumption  that  the  wire  was  not  proper- 
ly insulated,  which  presumptiou,  unless  re- 
butted, will  establish  negligence  in  the  own- 
er of  the  wire  in  failing  to  have  a  properly 
insulated  wire.  Runyan  v.  Kanawha  Water 
&  Light  Co.  35:  430,  71  S,  E.  259,  68  W.  Va. 
609. 

Telegraphs. 

469.  There  is  no  presumption  of  negli- 
gence on  the  part  of  a  telegraph  company 
from  the  mere  sending  of  a  forged  tele- 
gram. Wells  V.  Western  U.  Teleg.  Co.  24: 
1045,  123  N.  W.  371,  144  Iowa,  605. 

470.  Proof  of  delivery  of  an  altered  tele- 
gram in  an  action  of  tort  establishes  prima 
facie  negligence  on  the  part  of  the  com- 
pany. Baily  v.  Western  U.  Teleg.  Co.  43: 
502,  76  Atl.  736,  227  Pa.  522. 

471.  A  prima  facie  case  of  negligence  in 
the  transmission  of  a  telegram  is  estab- 
lished by  proof  that  it  was  delivered  to 
the  telegraph  company  for  transmission, 
and  that  the  company  accepted  it,  and 
made  a  mistake  in  its  transmission.  Strong 
V.  Western  U.  Teleg.  Co.  30:  409,  109  Pac. 
910,  18  Idaho,  389. 

Medical  skill. 

472.  The  burden  of  showing  care  is  upon 
a  surgeon  who  leaves  a  sponge  inclosed  in 
a  wound  after  the  performance  of  an 
operation.  Davis  v.  Kerr,  46:  611,  86  Atl. 
1007,  239  Pa,  351. 

2.  Contributory  negligence, 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Establishing  allegation  of  freedom  from,  see 
supra,  93. 

Sufficiency  of  evidence,  see  infra,  2170-2179. 

Necessity  of  pleading  and  proving  contribu- 
tory negligence,  see  Pleading,  471. 

Sufficiency  of  presumption  to  take  case  to 
jury,  see  Trial,  150. 

See  also  supra,  381. 

473.  The  burden  of  proof  to  establish 
contributory  negligence  is  upon  the  defend* 
ant.  Winona  v.  Botzet,  23:  204,  169  Fed 
321,  94  C.  C.  A.  563. 

Of  child. 

474.  A  jury  is  warranted  in  finding  a 
child   between   8   and   9   years   of   age   who. 


EVIDENCE,  II.  h,  2. 


1109 


■while  crossing  a  bridge  or  playing  thereon, 
pushed  his  arm  through  an  opening  in  the 
lattice  work  of  the  railing  and  touched  an 
electric  wire,  from  which  he  received  an  in- 
jury, not  guilty  of  contributory  negligence. 
•G-Ioster  v.  Toronto  Electric  Light  Co,  ] 
B.  R.  C.  786,  38  Can.  S.  C.  27. 
Of  passeii?;er, 

475.  A  passenger  who  is  injured  in  get- 
ting off  a  moving  railroad  train  has  the 
burden  of  proving  that  he  was  justified  in 
so  doing.  Hoylman  v.  Kanawha  &  M.  R. 
€o.  22:  741,  64  S.  E.  536,  65  W.  Va.  264. 

476.  A  passenger  injured  while  standing 
■on  the  running  board  of  a  street  car  must 
show  by  affirmative  evidence  that  it  was 
not  practicable  for  him  to  go  inside  the  car, 
before  he  can  hold  the  carrier  answerable 
for  the  injury.  Burns  v.  Johnstown  Pass, 
R.  Co.  2:  1 191,  62  Atl.  564,  213  Pa.  143. 

477.  A  passenger  in  a  carriage  drawn  by 
horses  will  not  be  presumed  to  be  guilty  af 
contributory  negligence  by  failing  to  jump 
therefrom  when  discovering  that  the  horses 
are  frightened  by  an  approaching  automo- 
bile. Mclntyre  v.  Orner,  4:  1130,  76  N.  E. 
750,  166  Ind.  57. 

Of  employee. 

478.  In  an  action  against  a  master  for 
damages  caused  by  the  death  of  his  servant 
as  a  result  of  the  master's  negligence,  the 
presumptions  which  arise  in  favor  of  the 
instincts  of  self-preservation  and  the  known 
disposition  of  men  to  avoid  injury  and 
personal  harm  to  themselves  constitute  a 
prima  facie  inference,  where  there  was  no 
eyewitness  to  the  accident,  that  the  servant 
was  at  the  time  in  the  exercise  of  ordi- 
nary care,  and  was  himself  free  from  con- 
tributory negligence.  Adams  v.  Bunker  Hill 
&  S.  Min.  Co.  11:  844,  89  Pac.  624,  12  Idaho, 
637.  (Annotated) 

479.  The  agreement  of  a  servant  to  as- 
sume the  ordinary  risks  of  his  employment 
and  the  extraordinary  risks  thereof  that 
are  apparent  inheres  in  and  is  an  inextri- 
cable part  of  his  contract  of  employment, 
and  when  the  latter  is  proved  or  admitted, 
the  assumption  of  these  risks  is  proved,  and 
no  pleading  or  proof  on  the  part  of  the 
defendant  is  necessary  to  establish  it,  Chi- 
cago, B.  &  Q.  R.  Co.  V.  Shalstrom,  45:  387, 
195  Fed.  725,  115  C.  C.  A.  515. 

480.  The  burden  of  proving  nonassump- 
tion  of  risk  cannot  be  laid  upon  a  servant 
seeking  damages  for  injuries  alleged  to 
have  been  caused  by  his  master's  negligence, 
Duffey  V.  Consolidated  Block  Coal  Co,  30: 
1067,  124  N.  W.  609,  147  Iowa,  225. 

At  railroad  crossing. 
See  also  Railroads,  229, 

481.  The  unexplained  presence  of  a  child 
non  sui  juris  on  a  dangerous  railroad  cross- 
ing is  prima  facie  evidence  o-f  negligence 
on  the  part  of  its  parents.  Harrington 
V.  Butte,  A.  &  P.  R.  Co.  16:  395,  95  Pac. 
«,-  37    Mont.    169.  (Annotated) 

482.  Mistake  of  judgment  will  not  be  in- 
ferred ,as  an  explanation  of  the  death  of 
one  killed  while  attempting  to  cross  a  rail- 
road track  in  front  of  a  moving  train. 
Digest   1-52  L.R.A.CN.S.) 


Wright  V.   Boston  &  M.  R.   8:  832,  65  Atl. 
687,  74  N.  H.  128. 

483.  A  person  killed  at  a  railroad  cross- 
ing cannot  be  presumed  to  have  exercised 
due  care  if  the  circumstances  were  such 
that  he  could  not  have  been  injured  had  he 
done  so.  Schmidt  v.  Missouri  P.  R.  Co. 
3:  196,  90  S.  W.  136,  191  Mo.  215. 

484.  One  killed  at  a  railroad  crossing  un- 
der circumstances  of  which  there  was  no 
witness  cannot  be  presumed  to  have  been  in 
the  exercise  of  due  care  in  an  action  to  hold 
the  railroad  company  liable  for  his  death, 
where  the  burden  of  showing  due  care  is 
on  the  plaintiff.  Shum  v,  Rutland  R.  Co. 
19:  973,  69  Atl,  945,  81  Vt.  186. 

485.  One  killed  at  a  railroad  crossing 
and  seen  to  have  used  due  care  in  looking 
for  trains  as  he  approached  the  crossing 
until  he  passed  beyond  the  sight  of  witness- 
es, is  presumed  to  have  done  his  duty,  and 
not  to  have  been  guilty  of  contributory  neg- 
ligence at  the  point  of  crossing.  Hanna  v. 
Philadelphia  &  R,  R.  Co.  4:  344,  62  Atl. 
643,  213  Pa,  157.  (Annotated) 

486.  The  presumption  that  one  who  was 
killed  while  crossing  a  railway  track  looked 
and  listened  before  attempting  to  cross  it 
is  destroyed  where  the  plaintiff  introduces 
direct  and  affirmative  evidence  as  to  exact- 
ly what  occurred,  and  where  it  also  appears 
from  the  undisputed  evidence  that,  if  the 
deceased  had  looked  and  listened  before 
going  upon  the  crossing,  he  must  have  seen 
and  heard  the  train  approaching.  Carlson 
v.  Chicago  &  N,  W,  R.  Co.  4:  349,  105  N. 
W.  555,  96  Minn.  504. 

487.  In  an  action  to  recover  damages  for 
the  death  of  a  person,  caused  by  a  collision 
with  a  train  of  defendant  at  the  intersec- 
tion of  a  street  and  the  railroad  track, 
where  the  uncontradicted  evidence  conclu- 
sively shows  that  when  decedent  was  50 
feet  distant  from  the  railroad  track  a 
train  could  have  been  seen  at  a  distance  of 
2,500  feet  from  such  crossing,  and  where 
the  testimony  shows  that  the  deceased 
looked  and  listened  for  the  train  at  that 
point,  the  law  conclusively  presumes  either 
that  he  did  not  look  and  listen,  or  that 
if  he  did  look  and  listen,  or  both,  he  after- 
wards heedlessly  disregarded  the  knowledge 
thus  obtained,  and  negligently  went  into 
an  obvious  danger.  Carlson  v.  Chicago  & 
N.  W.  R.  Co.  4:  349,  105  N.  W,  555,  DO 
Minn.  504, 

On  higliTvay. 

See  also  Pleading,  349, 

488.  In  an  action  against  a  city  for  in- 
jury by  an  alleged  defect  in  a  highway,  the 
burden  of  proving  contributory  negligence 
is  on  the  defendant.  Oklahoma  City  v. 
Reed,  33:  1083,  87  Pac.  645,  17  Okla.  518. 

489.  In  an  action  against  a  street  rail- 
way company  to  recover  damages  for  its 
negligence  resulting  in  the  death  of  one 
injured  at  a  street  crossing,  the  burden  of 
proving  contributory  negligence  rests  upon 
the  railway  company.  Pilmer  v.  Boise 
Traction  Co,  15:  254,  94  Pac.  432,  14  Idaho, 
327. 


1110 


EVIDENCE,  11.  i. 


490.  The  Budden  swerving  of  a  reason- 
ably safe  and  gentle  horse  in  temporary 
fright  at  a  street  car,  raises  no  presump- 
tion of  negligence  on  the  part  of  the  driver 
so  as  to  bar  recovery  for  injury  sustained 
by  being  thrown  from  his  wagon  on  the 
striking  by  it  of  an  obstruction  on  the 
street  when  the  horse  swerved,  since  such 
conduct  on  the  part  of  the  horse  is  usual 
and  ordinary.  Eucker  v.  Huntington,  25: 
143,  66  S.  E.  91,  66  W.  Va.  104. 

491.  The  law  presumes  that  one  killed  by 
a  car  while  walking  on  a  street-car  track 
was  in  the  exercise  of  due  care,  in  the  ab- 
sence of  evidence  to  the  contrary.  GofT  v. 
St.  Louis  Transit  Co.  9:  244,  98  S.  W.  49, 
199  Mo.  694. 

Persons  found  dead. 

See  also  supra,  482-487,  491. 

492.  Because  the  natural  instinct  of  self- 
preservation  generally  prompts  men  to  acta 
of  care  and  caution  when  approaching  or 
in  the  presence  of  danger,  there  is,  in  the 
absence  of  credible  evidence  of  the  actual 
fact  in  any  instance,  a  presumption  of  the 
exercise  of  due  care  and  caution ;  but,  like 
other  presumptions  of  fact  arising  from 
the  ordinary  or  usual  conduct  of  men, 
rather  than  from  what  is  invariable  or  uni- 
versal, this  presumption  is  disputable,  and 
cannot  exist  where  it  is  incompatible  with 
the  conduct  of  the  person  to  whom  it  is 
sought  to  apply  it,  which  may  be  shown  by 
the  testimony  of  eyewitnesses  to  his  move- 
ments, or  by  evidence  of  the  physical  sur- 
roundings and  other  conditions  at  the  time. 
Wabash  R.  Co.  v.  De  Tar,  4:  352,  141  Fed. 
932,  73  C.  C.  A.  166. 

493.  The  presumption  of  due  care  on  the 
part  of  one  drowned  while  using  an  unsafe 
boat  will  support  a  recovery  for  his  death 
against  the  one  who  let  the  boat  to  him,  and 
is  shown  to  have  been  guilty  of  negligence 
in  so  doing.  Lincoln  v.  Detroit  &  M.  R.  Co. 
51:  710,  146  N.  W.  405,  179  Mich.  189. 
Electric  shock. 

See  supra,  474. 

i.  As  to  official  acts. 

(See  also   same  heading   in  Digest  L.R.A. 
1-10.) 

As  to  service  of  process,  see  infra,  678-680. 
See  also  infra,  495. 

494.  The  official  survey  of  government 
land  will  be  presumed  to  be  correct  after 
the  lapse  of  many  years,  where  its  disturb- 
ance would  upset  titles  and  destroy  rights 
of  those  who  have  in  good  faith  relied  on 
it.  Kneeland  v.  Korter,  i :  745,  82  Pac.  608, 
40  Wash.   S.'Sg. 

495.  In  a  trial  following  the  replevying  of 
intoxicating  liquors,  to  determine  the  right 
of  possession  thereof,  evidence  that,  at  the 
commencement  of  the  litigation,  the  defend- 
ant held  the  property  as  city  marshal,  un- 
der a  warrant  issued  by  a  police  court, 
justifies  a  presumption,  in  the  absence  of 
anything  to  indicate  the  contrary,  that  he 
was  acting  under  an  ordinance  passed  in  aid 
Digest  1-52  I..R.A.(N.S.) 


of  a  prohibitory  law.  authorizing  the  seizure- 
and  destruction  of  liquors  kept  for  sale  in 
violation  of  the  statute.  Hines  v.  Stahl, 
20:  1118,  99  Pac.  273,  79  Kan.  88. 

496.  Under  a  statute  permitting  a  mu- 
nicipality to  appeal  from  an  order  of  a. 
board  of  health  forbidding  its  casting  sew- 
age into  a  stream  so  as  to  menace  the  pub- 
lic health  and  permitting  the  order  to 
stand  pending  the  appeal,  the  burden  is  onr 
the  city  to  show  that  the  order  was  not  jus- 
tified. Miles  City  v.  Board  of  Health,  25: 
589,  102  Pac.  696,  39  Mont.  405. 

Tax. 

See  also  supra,  66. 

497.  There  can  be  no  presumption  in  favor 
of  an  assessment  for  taxation  whicli  is  ar- 
rived at,  not  by  an  exercise  of  judgment, 
but  by  an  arbitrary  manipulation  of  fig- 
ures. Consolidated  Cas  Co.  v.  Baltimore, 
i:  263,  01  Atl.  532,  101  Md.  541. 

498.  The  court  will  not  assume  that  as» 
sessors  will  violate  their  statutory  duty  and 
assess  property  at  less  than  its  true  value.. 
Missouri,  K.  &  T.  R.  Co.  v.  Shannon,  lo: 
681,  100  S.  W.  138,  100  Tex.  379. 

499.  One  attacking  a  tax  assessment  oit 
the  ground  that  he  has  not  the  property  as- 
sessed has  the  burden  of  showing  that  fact, 
and  his  assessment  cannot  be  canceled  be- 
cause of  absence  of  proof  that  he  possessed 
the  property.  Barhydt  v.  Cross,  40:  986,  136 
N.  W.  525,  156  Iowa,  271. 

500.  A  party  attacking  a  certificate  of 
sale  for  taxes  has  the  burden  of  .showing  that 
there  was  no  valid  judgment  authorizing  the 
sale.  Nind  v.  Myers,  8:  157,  109  N.  W.  335, 
15  N.  D.  400. 

Elections. 

501.  Allegation  or  proof  on  the  part  of 
the  state  of  the  holding  of  a  valid  election 
to  determine  whether  or  not  intoxicating  li- 
quor shall  be  sold  in  a  certain  precinct  is 
not  necessary  in  a  prosecution  for  illegal 
sale  within  that  territory,  where  the  stat- 
ute provides  that  the  order  of  the  county 
court  in  declaring  the  result  of  an  election 
shall  be  prima  facie  evidence  that  all  pro- 
visions of  the  law  have  been  complied  with 
in  giving  notice  of  and  holding  such  elec-^ 
tion,  and  in  counting  and  returning  the 
votes  and  declaring  the  result,  if  such  an 
order  is  produced  at  the  trial.  State  v. 
CarmoJy,  12:  828,  »1  Pac.  446,  50  Or.  1. 
Legislative  acts. 

See  supra,  84. 

Judicial  acts. 

As  to  regular  convening  of  court  on  day  ad- 
ministrator was  appointed,  see  Execu- 
tors AND  Administrators,  30. 

502.  The  allowance  of  a  claim  against 
an  estate  by  a  court  having  jurisdiction  is 
prima  facie  evidence  of  the  debt  and  of  its 
due  presentment  against  the  heirs  or  dev- 
isees in  a  proceeding  brought  to  subject 
real  estate  to  its  payment.  Re  Jones,  25: 
1304,  103  Pac.  772,  80  Kan.  632. 

503.  A  decree  of  divorce  will  be  presumed, 
in  dividing  the  property,  to  have  made  an 
allowance  to  the  wife  for  injury  caused  by 
the  communication  to  her  of  a  venereal  dis- 
ease by  the  husband,  so  as  to  bar  further 


EVIDENCE,  II.  j,  k,  1. 


1111 


right  of  action  tlierefor.     Schultz  v.  Chris- 
topher, 38:  780,  118  Pac.  629,  65  Wash.  496. 

504.  A  decree  in  a  divorce  suit,  awarding 
the  child  to  one  of  the  parents,  is  prima 
facie  evidence  of  the  kjal  right  to  its  cus- 
tody, but  is  not  conclusive  in  habeas  corpus 
proceedings,  where  circumstances  and  con- 
ditions, or  unfitness  of  the  parent,  arising 
since  the  date  of  the  decree,  is  involved. 
Barlow  v.  Barlow,  52:  683,  81  S.  E.  433,  141 
Ga.  535. 

505.  In  an  action  to  establish  the  govern- 
ment boundary  lines  of  subdivisions  of  a 
section,  the  court  will  presume  that  the 
only  matter  determined  in  a  former  suit 
to  enjoin  interference  with  a  fence  was  that 
the  complainant  did  not  establish  that  it 
was  on  the  true  line,  where  that  was  the 
only  issue  upon  which  the  court  was  asked 
to  pass,  and  the  evidence  fails  to  show  that 
the  judgment  was  based  on  any  other 
ground.  Matson  v,  Poncin,  38:  1020,  132 
N.  W.  970,  152  Iowa,  569. 

506.  A  resort  to  a  suit  in  habeas  corpus 
in  an  appellate  ceurt,  by  a  witness  who  has 
been  committed  to  jail  by  order  ©f  a  trial 
court  for  refusing  to  testify,  is  a  collateral 
attack  upon  the  order  of  commitment,  and 
the  petitioner  assumes  the  burden  of  over- 
coming the  presumption  that  it  was  valid. 
McGerray  v.  Sutter,  24:  165,  89  N.  E.  10, 
80  Ohio  St.  400. 

507.  In  a  collateral  proceeding,  requisite 
notice  to  a  ward  to  bind  him  by  acts  of  his 
guardian  in  his  behalf  will  be  presumed  to 
have  been  given.  Ross  v.  Wright  County, 
1:431,  104  N.  W.  506,  128  Iowa,  427. 

508.  The  fact  that  a  prisoner  was  ad- 
judged guilty  of  contempt  without  notice  or 
hearing  will  be  inferred  in  the  absence  of 
the  narration  of  facts  to  the  contrary  in 
the  judgment,  notwithstanding  the  use  of 
terms  therein  such  as,  "this  court  was  of 
the  opinion,"  etc.,  and,  "this  court  doth  find 
as  a  fact,"  etc.  Ex  parte  Clark,  15:  38§, 
106  S.  W.  990,  208  Mo.  121. 
Jurisdiction. 

See  also  Habeas  Corpus,  13. 

509.  Failure  of  a  probate  court  to  recite 
jurisdictional  facts  in  its  decree  does  not 
raise  a  presumption  that  such  facts  did 
not  exist.  Holmes  v.  Holmes,  30:  920,  111 
Pac.  220,  27  Okla.  140. 

510.  It  will  be  presumed,  in  case  of  a 
court  of  general  jurisdiction,  that,  when  a 
published  notice  states  that  a  petition  will 
be  filed  on  a  certain  date,  and  an  order  in 
response  thereto  is  made  a  few  days  later, 
it  was  filed  on  that  day;  and  that  the  court 
retained  jurisdiction  when  the  order  was 
entered.  Mortgage  Trust  Co.  v.  Redd, 
8:  1215,  88  Pac.  473,  38  Colo.  458. 

j.  From   circumstances   and  course   of 
business. 

(See  also   same   heading   in  Digest   L.R.A. 
1-70J 

611.  The  presumption  «f  the  receipt 
of  a  letter  properly  addressed,  stamped,  and 
placed  in  the  mail,  may  be  overcome  by  tes- 
Digest   1-52  I<.R.A.(N.S.) 


timony  of  the  addressee  that  he  never  re- 
ceived it.  Campbell  v.  Gowans,  23:  414,  100 
Pac.  397,  35  Utah,  268. 

512.  Proof  that  "demand  was  made  by 
mail"  implies  a  prepayment  of  postage  and 
a  deposit  of  the  demand  in  a  United  States 
postoffice;  but  that  the  letter  was  properly 
addressed  to  the  addressee  at  the  place 
where  he  resides  or  receives  his  mail  is  not 
thereby  implied,  and  proof  of  that  fact  must 
be  had  before  the  receipt  of  the  letter  by 
the  addressee  will  be  inferred.  Feder  Sil- 
berberg  Co.  v.  McNeil,  49:  458,  133  Pac.  975, 
18  N.  M.  44.  (Annotated) 

513.  When,  after  the  lapse  of  thirty  years 
or  more,  the  record  of  proceedings  in  the 
exercise  of  the  power  of  eminent  domain 
is  shown  to  be  such  that  they  would  have 
been  valid  under  any  circumstances,  and 
where  both  parties  have  treated  them  as 
valid,  such  circumstances  will,  if  necessary, 
and  in  the  absence  of  evidence  to  the  con- 
trary, be  presumed  to  have  existed.  Rob- 
erts V.  Sioux  City  &  P.  R.  Co.  2:  272,  102 
N.  W.  60,  73  Neb.  8. 

1c.  As  t0  rights,  contrmcts,  in8trum,ents, 
mnd  property. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-tO.) 

Presumption  of  intent  to  abandon  logs,  see 
Abandonment,  6. 

Presumption  of  acquiescence  in  placing  of 
boundary  fence,  see  Boundaries,  8. 

Presumption  that  frame  building  placed  up- 
on land  of  another  with  latter's  consent 
remains  property  of  party  annexing  it, 
see  Fixtures,  310. 

Presumption  aa  to  license,  see  LiCEarsE,  12. 

See  also  supra,  110,  181. 

514.  An  assignor  for  creditors  has  the  bur- 
den of  showing  that  he  is  entitled  to  inter- 
est on  funds  which  the  assignee  kept  on  de- 
posit in  the  bank,  and  the  amount  of  it, 
at  least  where  the  assignor  was  insolvent, 
so  that  the  trust  was  a  creditors'  trust,  and 
they  did  not  object  to  such  proceeding. 
Whitman  v.  Mclntyre,  19:  682,  85  N.  E.  426, 
199  Mass.  436. 

515.  The  burden  of  showing  a  license  from 
a  former  owner  is  upon  one  sued  for  main- 
taining a  portion  of  the  foundation  wall  of 
his  building,  which  was  projected  into  the 
soil  of  the  adjoining  property  owner,  to 
enable  him  to  avoid  liability  for  the  con- 
tinuing trespass  upon  that  ground.  Milton 
V.  Puffer,  32:  loio,  93  N.  E.  634,  207  Mass. 
416. 

516.  Alleging  in  a  bill  to  enjoin  attempted 
use  of  a  right  of  way  over  property  of  tlie 
complainant,  that  defendant  has  no  such 
right,  does  not  relieve  defendant  from  the 
burden  of  establishing  hia  right.  Barber  v. 
Bailey,  44:  98,  84  Atl.  608,  85  Vt.  219. 

517.  To  maintain  an  action  to  recover 
from  a  building  and  loan  association  the 
amount  of  stock  alleged  to  have  been  with- 


1112 


EVIDENCE,  II.  k,  1. 


drawn  by  a  member,  he  has  the  burden  ol 
establishing  his  right  to  witlidraw  by  com- 
pliance with  the  rules  of  the  association. 
Hoyt  V.  Harbor  &  Suburban  Bldg.  &  Sav. 
Asso.  49:  1 1 29,  90  N.  E.  349,  197  N.  Y.  113. 

518.  A  corporation  organized  to  supply 
electricity  for  heat,  light,  and  power  pur- 
poses to  the  public,  applying,  according  to 
the  requirements  of  the  statute,  to  the 
public  service  commission  for  the  privilege 
of  issuing  bonds  to  aid  in  the  construc- 
tion and  maintenance  of  its  plant,  which 
alleges  it  has  the  right  to  place  its  wires 
in  the  streets  of  a  municipality,  must,  where 
it  has  not  obtained  permission  to  do  so 
from  the  commission,  establish  the  right 
by  proof.  People  ex  rel.  New  York  Edi- 
son Co.  V.  Willcox,  45:  629,  100  N.  E.  705, 
207  N.  Y.  86. 

519.  There  is  no  room  for  any  inference 
that  an  island  was  not  in  existence  at  the 
time  of  the  government  survey  of  1868  be- 
cause the  field  notes  and  plat  make  no  men- 
tion of  it,  where  such  island  has  an  area  of 
nearly  140  acres,  has  well-defined  banks  ris- 
ing from  3  to  5  feet  above  high  water,  is 
largely  covered  with  a  growth  of  wild  grass, 
sage  brush,  and  small  timber,  bears  un- 
doubted evidence  of  permanency,  and  con- 
cededly  was  in  its  present  condition  only 
twelve  vears  after  the  survey.  Scott  v. 
Lattig,  44:  107,  33  Sup.  Ct.  Rep.  242,  227  U. 
S.  229,  57  L.  ed.  490. 

Rights  in  higliTP^ay. 

520.  The  public  character  of  a  road, 
street,  or  alley  is  established  prima  facie 
by  proving  its  use  as  such  by  the  public, 
and  recognition  of  it  as  such  by  the  county 
court,  or  by  the  eity  or  town,  as  the  case 
may  be.  Campbell  v.  Elkins,  2:  159,  52  S. 
E.  220,  58  W.  Va.  308. 

521.  A  telegraph  company  which  has 
maintained  poles  on  a  public  highway  for 
more  than  sixty  years  is  presumed  to  have 
acquired  the  right  to  do  so  from  the  abut- 
ting owner.  Western  U.  Teleg.  Co.  v.  Pol- 
hemus,  29:  465,  178  Fed.  904,  102  C.  C.  A. 
105. 

Contracts  generally. 

Burden  of  proving  ratification  of  voidable 
contract,  see  supra,  187. 

Presumption  as  to  continuance  of  contract, 
see  supra,  316, 

Presumption  that  order  for  goods  taken  by 

i,  commercial  traveler  is  subject  to  ap- 
proval by  house  which  he  represents,  see 
Contracts,  190. 

As  to  unreasonableness  of  withholding  archi- 
tect's certificate,  see  Contracts,  675. 

Burden  of  proving  contract  valid  under  stat- 
ute of  frauds,  see  Plb^ading,  531. 

Presumption  as  to  acceptance  for  order  for 
goods,  see  Sale,  4. 

See  also  infra,  644. 

522.  The  law  presumes  the  validity  of  a 
contract  by  which  stocks  are  to  be  pur- 
chased and  carried  by  a  broker  on  margin, 
and  the  customer  has  the  burden  of  show- 
ing that  it  was  a  mere  cover  for  a  gambling 
transaction.  Richter  v.  Poe,  22:  174,  71  Atl. 
420,  109  Md.  20. 

523.  One  seeking  to  defeat  a  lien  to  the 
Digest   1-52  LuR.A.(N.S.) 


amount  of  the  unpaid  purchase  price  for  a 
supply  of  electricity  furnished  for  use  in 
a  mine  according  to  contract,  under  a  stat- 
ute allowing  such  lien,  has  the  burden  of 
showing  that  the  quantity  called  for  by  the 
contract  was  not  used.  Grants  Pass  Bkg. 
&  T.  Co.  V.  Enterprise  Min.  Co.  34:  395,  113 
Pac.  859,  58  Or.   174. 

524.  The  burden  is  on  a  master  who  is 
sought  to  be  held  liable  for  the  death  of  a 
minor  employee,  because  of  his  violation  of 
an  agreement  with  the  parent  not  to  per- 
mit the  child  to  go  about  machinery,  to 
show  a  waiver  by  the  parent  of  such  agree- 
ment, if  he  relies  upon  it  as  a  defense. 
Haynie  v.  North  Carolina  Electric  Power 
Co.  37:  580,  73  S.  E.  198,  157  N.  C.  503. 
Carrier's  contracts. 

525.  One  who  sues  the  terminal  carrier 
for  refusal  to  honor  a  limited  ticket  be- 
cause it  had  expired  has  the  burden  of  show- 
ing that  the  tiine  limited  upon  the  ticket 
was  so  short  as  to  be  unreasonable,  if  he 
relies  on  such  defense.  Brian  v.  Oregon 
Short  Line  R.  Co.  25:  459,  105  Pac.  489,  40 
Mont.  109. 

526.  Contract  liability  by  a  carrier  to 
carry  and  deliver  goods  beyond  its  own  line 
will  not  be  inferred  from  loose  and  doubt- 
ful expressions,  or  the  taking  of  a  through 
fare  on  receipt  of  the  goods.  Roy  v.  Chesa- 
peake &  O.  R.  Co.  31:  1,  57  S.  E.  39,  61  W. 
Va.   616. 

527.  A  carrier  seeking  to  defeat  liability 
for  breach  of  a  carriage  contract,  because 
it  violates  the  interstate  commerce  law,  has 
the  burden  of  showing  such  violation.  Alt- 
schuler  v.  Atchison,  T.  t,  S.  F.  R.  Co.  49: 
491,  144  N.  W.  294,  155  Wis.  146. 

528.  In  an  action  where  there  is  a  plea  of 
a  special  contract  in  defense,  limiting  or 
conditioning  the  carrier's  liability,  the  bur- 
den is  upon  the  carrier  not  only  to  show  a 
valid  special  contract,  but  also  to  allege  and 
prove  the  facts  and  circumstances  showing 
the  stipulations  to  be  reasonable.  Houtz  v. 
Union  P.  R.  Co.  17:  628,  93  Pac.  439,  33 
Utah,  175. 

529.  A  carrier  which  prevents  a  perform- 
ance by  an  orchestra  because  of  failure  to 
transport  its  instruments  in  time  cannot, 
in  fixing  the  damages  for  which  it  is  liable, 
deduct  expenses  from  the  receipts  to  which 
the  contract  of  the  orchestra  entitles  it, 
without  showing  that  they  were  to  be  borne 
by  it.  Altschuler  v.  Atchison,  T.  &  S.  F. 
R.  Co.  49:  491,  144  N.  W.  294,  155  Wis.  146. 
Contracts  ef  employment. 

530.  The  burden  of  proving  that  the  em- 
ployment of  a  traveling  salesman  upon  an 
agreement  for  monthly  salary  and  expenses, 
and  the  further  compensation  of  a  commis- 
sion in  excess  of  salary  and  expenses  on 
goods  sold  by  him,  the  excess  to  be  ascer- 
tained and  paid  on  settlement  made  at  the 
end  of  each  year,  is  an  employment  for  a 
year,  rests  upon  the  party  who  seeks  to 
establish  that  the  contract  covered  this  pe- 
riod. Reasnor  v.  Watts,  Ritter,  &  Co.  51: 
629,  80  S.  E.  839,  73  W.  Va.  342. 

531.  The  employment  of  a  traveling  sales- 
man   upon    an    agreement    for    a    monthly 


EVIDENCE,  II.  k,  1. 


1113 


salary  and  expenses,  and  a  further  compen- 
sation of  a  certain  commission  in  excess  of 
salary  and  expenses  on  goods  sold  by  him, 
the  excess  to  be  ascertained  and  paid  on 
settlements  made  at  the  end  of  each  year, 
is  presumed  to  be  a  hiring  at  will,  which 
either  party  may  at  any  time  terminate  at 
his  pleasure  without  liability  for  breach  of 
contract.  Reasnor  v.  Watts,  Ritter,  &,  Co. 
51:  629,  80  S.  E.  839,  73  W,  Va.  342. 

(Annotated) 
Contracts  of  sale. 
See  also  infra,  568. 

532.  An  action  for  goods  sold  and  de- 
livered is  not  sustained  by  proof  of  the  con- 
tract alone  without  anything  to  show  de- 
livery. Price  V.  Wiesner,  31:  927,  111  Pac. 
439,  83  Kan.  343. 

533.  Where  a  written  contraxjt  for  the 
sale  of  goods  specifies  no  time  for  delivery, 
the  implication  arises  that  delivery  will 
be  made  within  a  reasonable  time.  Camer- 
on Coal  &  M.  Co.  V.  Block,  31:  618,  110 
Pac.  720,  26  Okla.  615. 

534.  The  burden  of  proof  in  an  action  to 
recover  the  purchase  price  of  machinery 
sold,  to  be  paid  for  provided  it  works  to 
the  satisfaction  of  the  buyer,  to  show  ac- 
ceptance, or  that  refusal  to  accept  was  in 
bad  faith,  is  on  the  plaintiff;  and  defend- 
ant is  not  bound  to  show  that  the  ma- 
chinery was  not  satisfactory,  or  that  he 
acted  in  good  faith  in  reaching  that  conclu- 
sion. Inman  Mfg.  Co.  v.  American  Cereal 
Co.  8:  1140,  110  N.  W.  287,  133  Iowa,  71. 

535.  The  retention  of  title  to  chattels 
which  have  been  sold  and  delivered,  to  se- 
cure payment  of  the  purchase  price,  for 
which  the  note  of  the  purchaser  has  been 
given,  raises  a  presumption  that  an  agree- 
ment that  the  purchase  price  has  been  paid 
thereby  is  subject  to  the  condition  that  the 
note  be  subsequently  paid.  A.  Leschen  & 
Sons  Rope  Co.  v.  Mayflower  Gold  Min.  & 
R.  Co.  35:  I,  173  Fed.  855,  97  C.  C.  A.  465. 

536.  In  a  suit  for  a  balance  due  for  goods 
under  the  terms  of  a  written  contract,  where 
the  answer  admits  the  execution  of  the  con- 
tract and  the  receipt  of  the  goods  at  the 
price  claimed,  and  defends  on  the  grounds 
that  the  contract  is  illegal  and  unenforce- 
able, and  was  procured  through  fraud,  the 
burden  of  proof  is  on  the  defendant.  J.  W. 
Ripy  &  Son  v.  Art  Wall  Paper  Mills,  51:  33, 
136  Pac.  1080,  41  Okla.  20. 

Implied  contracts. 

537.  A  foster  child  cannot  recover  com- 
pensation from  the  estate  of  her  deceased 
foster  father  for  services  rendered  him  dur- 
ing his  last  illness,  in  the  absence  of  an 
express  promise  to  pay  therefor,  or  the 
presence  of  such  circumstances  as  will  be 
equivalent  to  such  a  promise,  since  there  is 
a  presumption  that  such  services  were 
gratuitous.  Re  Daste,  29:  297,  51  So.  677, 
125  La.  657. 

Sealed  instruments  generally. 
Seal  as  prima  facie  evidence  of  considera- 
tion, see  Seal,  4. 

538.  The  presumption  arising  from  a  seal, 
that  the  consideration  named  in  an  execu- 
tory contract  was  actually  paid,  cannot  be 
Digest   1-52  L.R.A.(N.S.) 


disputed  as  between  the  parties,  either  at 
law  or  in  equity.  Watkins  v.  Rol)ortson, 
5:  1194,  54  S.   E.   33,   105  Va.  269. 

539.  The  prima  facie  evidence  of  execu- 
tion by  proper  authority,  which  the  presence 
of  the  corporate  seal  upon  a  contract  alleged 
to  be  that  of  the  corporation  constitutes, 
may  be  conclusively  rebutted.  Cause  v. 
Commonwealth  Trust  Co.  24:  967,  89  N.  E. 
476,   196  N.   Y.   134. 

Bonds;  bona  fide  purchaser  of. 
Presumption  of  payment  of,  see  infra,  637. 
Presumption   as   to   amount   of   damage   in 
suit  on  bond,  see  infra,  656. 

540.  The  holder  of  negotiable  county  aid 
bonds  lawfully  issued  is,  by  presumption, 
clothed  with  the  character  of  a  bona  fide 
holder  for  value.  Quinlan  v.  Green  County, 
19:  849,  157  Fed.  33,  84  C.  C.  A.  537. 

541.  Railroad  aid  bonds  issued  by  a  cor- 
poration, which  contain  no  recitals  as  to 
compliance  with  the  conditions  upon  which 
they  are  to  be  issued,  are  entitled  to  the 
same  presumption,  in  the  hands  of  bona  fide 
holders  for  value,  as  to  compliance  with  such 
conditions,  where  proof  is  made  that  the 
proceedings  were  in  fact  regular,  as  though 
the  recitals  had  been  incorporated  in  them. 
Quinlan  v.  Green  County,  19:  849,  157  Fed. 
33,  84  C.  C.  A.  537. 

542.  The  surety  on  the  bond  of  an  insur- 
ance agent  must  plead  and  prove  the  failure 
of  the  company  to  comply  with  its  under- 
taking to  exercise  due  and  customary  super- 
vision over  the  agent,  and  notify  the  surety 
immediately  of  any  default  on  the  part  of 
the  agent,  in  order  to  make  such  failure 
available  to  defeat  liability  on  the  bond. 
United  American  F.  Ins.  Co.  v.  American 
Bonding  Co.  40:  661,  131  N.  W.  994,  146  Wis. 
573. 

543.  Failure  of  a  materialman  to  give  no- 
tice of  a  claim  to  a  surety  on  the  bond  of 
the  building  contractor,  in  accordance  with 
its  terms,  is  not  a  matter  of  defense  to  an 
action  upon  the  bond,  but  he  has  the  bur- 
den of  showing  compliance  to  make  out  his 
cause  of  action.  Knight  &  Jillson  Co.  v. 
Castle,  27:  573,  87  N.  E.  976,  172  Ind.  97. 
Insurance. 

Burden  of  proving  exception,  see  supra,  113, 

114. 
As  to  alteration  of,  see  infra,  602. 
Prejudicial   instruction   as   to,   see  Appeal 

AND  Error,  1385. 
That   foreign   insurance   company  has   com- 
plied with  law,  see  Insxjrance,  15,  16. 
Of  waiver  of  arbitration  as  provided  for  in 

insurance   policy,  see   Insurance,   654. 
Burden    of    proving    amount   realized    from 

sale  of  debris  of  insured  property,  see 

Insurance,  869. 
See  also  supra,   113,   114,   199;    Pleading, 

250. 

544.  A  husband  has  as  such  a  presumable 
interest  in  his  wife's  life;  and,  therefore,  it 
is  not  necessary  in  order  to  establish  the 
validity  of  a  policy  of  insurance  effected  by 
a  husband  upon  the  life  of  his  wife  to  give 
affirmative  evidence  as  to  the  existence  and 
extent  of  a  pecuniary  interest  of  the  husband 
in  the  life  of  the  wife.     The  interest  is  pre- 


1114 


EVIDENCE,  II.  k,  1. 


Slimed  to  the  extent  of  the  arrount  insured 
by  the  policy.  Griffiths  v.  Fleming,  2  B.  R. 
C.  391,  [190!)]  1  K.  B.  805.  Also  Reported 
in  78  L.  J.  K.  B.  N.  S.  567,  100  L  T.  N.  S. 
765,  25  Times  L.  R.  377,  53  Sol.  Jo.  340. 

( Annotated ) 

545.  The  holder  of  a  benefit  certificate 
who  relies  for  recovery  on  the  fact  that  the 
member,  who  had  forfeited  his  certificate 
for  nonpayment  of  dues,  had  been  rein- 
stated, for  which  reinstatement  he  was  re- 
quired to  present  a  statutory  certificate  of 
health,  has  the  burden  of  showing  that  the 
certificate  was  satisfactory  to  the  officer 
whose  duty  was  to  pass  upon  it.  Kennedy 
V.  Grand  Fraternity,  25:  78,  92  Pac.  971, 
36  Mont.  325. 

546.  In  an  action  at  law  upon  a  mutual 
benefit  certificate  which  entitled  claimant 
to  an  amount  equal  to  one  full  assessment 
upon  all  members  in  good  standing  in  the 
fraternity,  not  to  exceed  a  certain  amount, 
the  insurer  has  the  burden  of  showing  that 
an  assessment  would  not  produce  the 
amount  named,  to  defeat  a  recovery  of  that 
amount.  Krogh  v.  Modern  Brotherhood  of 
America,  45:  404,  141  N.  W.  276,  153  Wis. 
397. 

547.  A  provision  in  a  mutual  benefit  cer- 
tificate that  the  amount  should  be  paid 
within  a  certain  time  after  satisfactory 
proof  of  the  validity  of  the  claim  does  not 
require  proof  of  the  validity  of  the  certifi- 
cate. Lyon  v.  United  Moderns,  4:  247,  83 
Pac.  804,  148  Cal.  470. 

548.  The  facts  that  a  life  insurance  pol- 
icy contains  no  limitation  of  the  time  in 
which  an  action  may  be  brought  thereon 
after  a  loss  has  ensued,  and  that  such  an 
action  may  be  brought  at  any  time  before 
it  is  barred  by  a  statute  of  limitations,  do 
not  furnish  a  presumption  of  irreparable 
loss  so  as  to  entitle  the  insurers  to  maintain 
an  action  to  cancel  the  policy.  Bankers 
Reserve  Life  Co.  v.  Omberson,  48:  265,  143 
N.  W.  735,  123  Minn.  285. 
Presumption  and  burden  of  proof  in  action 

by   insurer   to   cancel   policy,   see  Evi- 
dence, 548. 

549.  In  an  action  on  a  policy  of  fire  in- 
surance providing  that,  in  the  event  of  a 
disagreement  between  the  parties  to  the 
contract  as  to  the  amount  of  loss,  the  same 
shall  be  ascertained  by  appraisers,  and  that 
the  loss  shall  not  become  payable  until 
sixty  days  after  the  notice,  ascertainment, 
and  proof  of  loss  required  in  the  policy 
have  been  furnished  to  the  insurer,  the 
burden  lies  upon  the  insured  to  show  that 
he  has  on  his  part  performed  or  offered  to 
perform  the  condition  as  to  the  appraisal. 
Graham  v.  German  American  Ins.  Co.  15: 
1055,  79  N.  E.  930,  75  Ohio  St.  374. 

—  Execution  of  contract. 

550.  The  finding  of  an  accident  policy 
fully  signed,  and  dated  June  30,  in  the  safe 
with  other  papers  of  the  insured  after  his 
death  on  August  24  of  the  same  year,  cre- 
ates a  prima  facie  presumption  that  the 
policy  contract  was  fully  executed,  although 
the  premium  had  not  been  paid.  Gardner 
Digest  1-52  I*.R.A.(N.S.) 


v.   United   Surety   Co.   26:  1004,   12f»   N.   W. 
264,  110  Minn.  291. 

551.  An  insurance  company  does  not,  by 
delay  in  passing  upon  an  application  pre- 
sented by  an  uninsurable  risk,  assume  the 
obligation  of  an  insurer  upon  the  theory 
that  its  conduct  prevents  the  securing  of 
insurance  elsewhere  and  creates  a  legal  pre- 
sumption of  acceptance.  Northwestern 
Mut.  L.  Ins.  Co.  V.  Neafus,  36:  1211,  140 
S.  W.  1026,  145  Ky.  563.  (Annotated) 

—  Cause  of  injury  or  death. 

As  to  suicide  of  insured,  see  supra,  157-165. 

552.  Injuries  to  one  thrown  and  injured 
while  attempting  to  cross  a  train  blocking 
a  street  crossing  will  not  be  presumed  to 
have  been  self-inflicted,  or  to  be  otherwise 
than  accidental,  in  an  action  for  compen- 
sation under  an  accident  insurance  policy. 
Kirkpatrick  v.  ^;]tna  L.  Ins.  Co.  22:  1255, 
117  N.  W.  1111,  141  Iowa,  74. 

—  Cause  of  loss. 

553.  An  insurer  has  the  burden  of  plead- 
ing and  proving  that  a  loss,  or  some  portion 
thereof,  of  the  insured  property,  was  caused 
by  an  explosion  for  which,  under  the  terms 
of  the  policy,  it  is  not  liable.  German 
American  Ins.  Co.  v.  Hyman,  16:  77,  94  Pac. 
27,  42  Colo.  156. 

554.  Where  a  fire  is  caused  by  an  explo- 
sion which  precedes  it,  one  claiming  to  hold 
an  insurer  liable  for  the  loss  has  the  burden 
of  showing  what  portion  of  the  loss  was 
due  to  the  fire,  where  the  policy  exempts 
the  insurer  from  liability  for  loss  by  ex- 
plosion unless  fire  ensues,  and  in  that  event 
makes  it  liable  only  for  the  loss  by  fire. 
German  American  Ins.  Co.  v.  Hyman,  16: 
77,  94  Pac.  27,  42  Colo.  156. 

555.  In  order  that  statements  of  an  ap- 
plicant for  a  fraternal  benefit  certificate 
shall  constitute  a  defense  to  an  action 
upon  the  certificate  of  membership  or  policy 
of  insurance  issued  to  the  applicant,  it  is  in- 
cumbent upon  the  association  to  plead  and 
prove  that  the  answers  were  made  as  writ- 
ten in  the  application,  that  they  were  false 
in  some  particular  material  to  the  insur- 
ance risk,  and  that  the  association  relied 
and  acted  upon  those  answers.  Goff  v. 
Supreme  Lodge  Royal  Achates,  37:  1191, 
134  N.  W.  239,  90  Neb.  578. 

—  Falsity     of     mrarranties     or     repre- 

sentations. 

556.  An  insurance  company  which  resists 
payment  of  the  amount  due  under  an  in- 
surance policy  because  of  alleged  false  an- 
swers in  the  application  has  the  burden  of 
proving  the  answers  and  their  falsity,  and 
to  do  so  should  introduce  the  application  in 
evidence.  National  Annuity  Asso.  v.  Mc- 
Call,  48:  418,  146  S.  W.  125,  103  Ark.  201. 
Lease. 

Presumption  of  agreement  for  second  re- 
newal of  lease,  see  Landlord  and  Ten- 
ant, 53. 

557.  The  lessee  under  a  written  lease  for 
one  year  who,  by  holding  over,  becomes  a 
tenant  for  another  year,  must,  when  sued 
for  the  rent,  in  order  to  avail  himself  of 
the  alleged  right  to  terminate  his  tenancy 
at  any  time,  under  conditions  expressed  in 


EVIDENCE,  II.  k,  1. 


1115 


the  lease,  allege  and  prove  the  existence  of 

the  conditions.     Kuhlman  v.  Wm.  J.  Lenip 

Erew.  Co.  29:  174,  126  N.  W.  1083,  87  Neb. 

72. 

Deeds. 

As  to  merger  of  deed  in  mortgage,  see  infra, 

570. 
As  to  alteration  of,  see  infra,  605,  606. 
Burden  of  proof  in  action  to  set  aside,  see 

infra,  647. 
See  also  infra,  619. 

558.  A  conveyance  of  land  by  husband  to 
wife  will  not  be  presumed  to  be  a  satis- 
faction of  his  antenuptial  contract  to  pay 
her  an  annuity  during  life.  Savage  v.  Sav- 
age, 3:  923,  141  Fed.  346,  72  C.  C.  A.  494. 

559.  It  will  be  presumed,  in  the  absence 
of  proof  to  the  contrary,  that  a  conveyance 
of  real  estate,  executed  by  a  mother  to  her 
infant  child,  which  was  duly  recorded  and 
thereafter  kept  by  the  grantor  among  her 
papers,  was  placed  on  record  by  her  procure- 
ment or  consent.  Pentico  v.  Hays,  9:  224, 
88  Pac.  738,  75  Kan.  76. 

560.  One  suing  in  equity  to  remove  a 
<;loud  from  his  title  must,  where  his  patent 
or  deed  includes  within  the  exterior  bounds 
of  the  lands  thereby  conveyed  lands  which 
are  excepted  by  such  grant  or  deed  from  its 
operation,  show  that  the  land  he  claims 
against  the  defendant  is  not  the  land  so  ex- 
cepted. Logan  V.  Ward,  5:  156,  52  S.  E. 
398,  58  W.  Va.  366.  (Annotated) 

561.  A  deed  of  land  sold  by  a  commis- 
sioner as  under  a  decree  is  prima  facie 
evidence  of  the  authority  of  the  commission- 
er to  convey,  and,  if  duly  recorded,  after 
ten  years  from  its  recordation  is  prima 
facie  evidence  that  the  title  of  all  persons 
which  the  deed  professes  to  convey  did  in 
fact  pass  by  such  deed.  Chapter  76,  Acts 
1907  (Code  Supp.  1909,  chap.  132,  §§  8al- 
8a4).  McGinnis  v.  Caldwell,  43:  630,  76  S. 
E.   834,   71  W.  Va.   375. 

562.  The  existence  of  the  record  of  a  deed 
for  more  than  fifty  years,  together  with 
the  occupation  of  the  land  by  the  grantee 
for  a  time  subsequently  to  the  date  of  the 
record,  without  anything  to  show  that  he 
claimed  under  the  deed,  is  not  sufficient 
to  raise  a  presumption  of  the  existence  of 
a  duly  executed  and  delivered  original.  Mc- 
Clerry  v.  Lewis,  19:  438,  70  Atl.  540,  104  Me. 
33. 

•r-  Delivery. 

See  also  supra,  562. 

563.  Delivery  and  acceptance  of  a  deed 
executed  by  a  mother  to  her  infant  child, 
will  be  presumed  where  it  is  duly  acknowl- 
edged and  recorded,  and  the  conveyance  is 
beneficial  to  the  child.  Pentico  v.  Hays,  9: 
224,  88  Pac.  738,  75  Kan.  76.  (Annotated) 
—  Acceptance. 

564.  The  fact  that  a  grantee  has  an  er- 
roneous impression  as  to  the  character  of 
the  deed  will  not  deprive  him  of  the  pre- 
sumption of  acceptance  if  he  asserts  his 
rights  under  it  as  soon  as  informed  of  their 
true  nature.  Matheson  v.  Matheson,  18: 
1 167,  117  N.  W.  755,  139  Iowa,  511. 

565.  Acceptance  of  a  deed  will  be  pre- 
Digest  1-52  I..R.A.(N.S.) 


sumed  until  the  contrary  is  shown,  where 
it  purports  to  convey  valuable  property, 
with  no  burden  to  be  assumed  by  the  gran- 
tee, and  is  in  the  manual  possession  of  the 
grantee,  or  a  third  person  for  him.  Mathe- 
son V.  Matheson,  18:  1167,  117  N.  W.  755, 
139  Iowa,  511. 

566.  When  a  deed  of  conveyance  duly  de- 
livered by  the  grantor  has  remained  for  a 
long  period  of  years  in  the  possession  of  the 
grantee,  its  acceptance,  nothing  appearing 
to  the  contrary,  will  be  inferred,  and  a 
like  inference  arises  where  the  deed  was  for 
the  benefit  of  the  grantee.  Lake  v.  Weaver 
(N.  J.  Err.  &  App.)  34:  495,  74  Atl.  451, 
76  N.  J.  Eq.  280. 

—  Consideration. 

567.  A  deed  of  land  from  a  father  to  his 
daughter's  husband,  which  recites  no  con- 
sideration, is  prima  facie  an  advancement 
to  that  daughter;  but  such  presumption  is 
rebuttable  by  proof  that  adequate  consid- 
eration was  paid  to  the  grantor.  White  v. 
White,  24:  1279,  66  S.  E.  2,  66  W.  Va.  79, 
Mortgage;  chattel  mortgage. 
Presumption  as  to  undue  influence,  see  su- 
pra, 292. 

568.  A  vendee  of  chattels  who  has  been 
deprived  of  possession  of  the  property  un- 
der a  writ  of  replevin  issued  in  favor  of  a 
mortgagee,  and  who,  prior  to  a  final  adjudi- 
cation of  the  mortgagee's  claim,  brings  ac- 
tion against  his  vendor  upon  the  latter's 
implied  warranty  of  title,  has  the  burden 
of  proving  a  valid  pre-existing  mortgage  in 
favor  of  the  mortgagee  before  he  can  re- 
cover on  the  warranty.  Clevenger  v.  Lewis, 
16:  410,  95  Pac.  230,  20  Okla.  837. 

569.  In  an  action  between  the  holder  of  a 
chattel  mortgage  on  domestic  animals  and 
their  increase,  and  a  creditor  of  the  mort- 
gagor, involving  the  right  to  the  possession 
of  the  increase,  the  burden  is  upon  the  mort- 
gagee to  establish  that  the  increase  were 
conceived  before  the  mortgage  was  given, 
and  were,  therefore,  in  actual  or  potential 
existence.  Holt  v.  Lucas,  17:  203,  96  Pac. 
30,  77  Kan.  710.  (Annotated) 

—  Merger. 

570.  One  taking  a  conveyance  of  mort- 
gaged property  in  satisfaction  of  the  mort- 
gage debt  has  the  burden  of  showing  that 
no  merger  of  the  mortgage  into  the  fee  was 
intended.  Gainey  v.  Anderson,  31:  323,  68 
S.  E.  888,  87  S.  C.  47. 

W^ills. 

As  to  testamentary  capacity,  see  supra,  218- 

220. 
As  to  testator's  intent,  see  supra,  232-234. 
Undue  influence,  see  supra,  286-291. 
As  to  alteration  of,  see  infra,  607. 

571.  A  presumption  arises  that  one  who 
presents  a  holographic  will  to  another  for 
attestation  had  signed  it  before  doing  so, 
if  the  paper  was  so  folded  as  to  conceal 
the  place  where  the  signature  was  affixed. 
Dougherty  v.  Crandall,  38:  161,  134  N.  W. 
24,  168  Mich.  281. 

572.  In  an  action  to  contest  a  will,  a  pro- 
bate of  the  instrument  is  prima  facie  evi- 
dence of  its  due  attestation,  execution,  and 


1116 


EVIDENCE,  II.  k,  1. 


validity.     Scott  v.  Thrall,   17:  184,  95  Pac. 
563.  77  Kan.  688. 

573.  To  probate  a  will  in  solemn  form, 
the  burden  is  on  the  proponent  to  pro.ve  the 
due  execution  of  tlie  instrument  and  the 
testamentary  capacity  of  the  testator  at 
the  time  of  its  execution.  Wells  v.  Thomp- 
son, 47:  722,  78  8.   E.  823,  140  Ga.   119. 

574.  On  an  application  to  probate  an  al- 
leged copy  of  u  will  made  nineteen  years 
after  the  original  will  was  executed,  it  is 
incumbent  upon  the  proponent  to  show 
what  became  of  the  original  will,  in  whose 
custody  it  was  placed,  account  for  its  non- 
production,  and  produce  some  competent 
proof  of  its  contents,  in  order  to  author- 
ize the  county  court  to  probate  such  a  copy. 
Re  Francis,  50:  861,  144  N.  W.  789,  94  Neb. 
742.  ( Annotated ) 

575.  Proof  of  the  signature  of  testator 
is  not  necessary  to  sustain  the  probate  of 
a  will  where  the  witnesses  are  dead,  if  the 
statute  provides  that,  if  living,  they  might 
have  testified  that  testator  acknowledged 
the  will,  although  the  statute  also  pro- 
vides that  in  case  of  the  death  of  the  wit- 
nesses the  court  may  admit  secondary  evi- 
dence, since  the  recitals  of  the  attestation 
clause  are  suflBcient  to  show  that  the  re- 
quirements of  the  statute  necessary  to  the 
valid  execution  of  the  will  have  been  com- 
plied with.  Elston  v.  Montgomery,  26:  420, 
90  N.  E.  3,  242  111.  348. 

576.  In  the  absence  of  proof  of  a  reason 
for  testatrix  not  signing  the  will,  there  is 
no  presumption  that  it  did  not  exist  which 
will  overcome  the  attestation  clause,  which 
shows  that,  not  having  signed  the  will,  she 
must  have  acknowledged  a  signature  by 
another  as  her  act  and  deed.  Elston  v. 
Montgomery,  26:  420,  90  N.  E.  3,  242  111. 
348. 

577.  Where  there  is  an  attestation  clause 
to  an  instrument  offered  for  probate  as  a 
will,  reciting  all  the  facts  essential  to  its 
due  execution  as  a  will,  and  it  is  shown 
that  the  alleged  testator  and  those  whose 
names  appear  thereon  as  witnesses  actually 
affixed  their  signatures  to  the  paper,  a  pre- 
sumption arises  that  it  was  executed  in  the 
manner  prescribed  by  law  for  the  execution 
of  wills.  Wells  V.  Thompson,  47:  722,  78 
S.  E.  823,  140  Ga.  119. 

Tax  certificate. 

578.  Under  N.  D.  Laws  1897,  p.  85,  chap. 
67,  §  15  (Rev.  Codes  1899,  §  1345),  a  cer- 
tificate of  sale  for  taxes  is  prima  facie  evi- 
dence of  a  valid  sale,  without  proof  of  a 
precedent  judgment.  Nind  v.  Myers,  8:  157, 
109  N.  W.  335,  15  N.  D.  400. 

579.  One  claiming  title  under  a  tax  sale 
certificate  issued  pursuant  to  N.  D.  Laws 
1897,  chap.  67,  p.  76,  need  not  prove  that  no 
redemption  has  been  made.  Nind  v.  Myers, 
8:  157,  109  N.  W.  335,  15  N.  D.  400. 
Negotiable  paper. 

Burden  of  proving  circumstances  attending 
alteration  of,  see  supra,  111. 

As  to  good  faith  of  transferee,  see  supra, 
279—281 

Digest  1-52  I<.B.A.(N.S.) 


Complaining  for  first  time  on  appeal  of 
failure  to  prove  presentment  and  no- 
tice in  action  against  indorser,  see  Ap- 
peal AND  Error,  772. 

See  also  supra,  78,  198,  535 :   infra,  670. 

580.  It  will  be  presumed  that  a  promis- 
sory note  upon  which  action  is  brought  is 
for  the  personal  benefit  of  the  payee  named 
in  it, -where  there  is  nothing  in  its  wording 
or  in  the  evidence  to  indicate  that  any  other 
person  has  any  interest  in  the  note.  McGuffiu 
V.  Coyle,  6:  524,  85  Tac.  954,  16  Okla.  G48. 

581.  In  the  absence  of  proof  that  a  note 
executed  by  a  man  and  wife  was  for  neces- 
saries ordered  by  the  wife,  the  presumption 
is  that  it  was  for  the  husband's  debt.  Gil- 
bert v.  Brown,  7:  1053,  97  S.  W.  40,  123  Ky, 
703. 

582.  A  waiver  of  presentment  and  notice 
will  not  be  inferred  from  doubtful  acts  or 
language  on  the  part  of  the  indorser  of  a 
promissory  note,  where  he  is  entitled  there- 
to by  statute.  Worley  v.  Johnson,  33:  639, 
53  So.  543,  60  Fla.  294. 

583.  The  holder  in  good  faith  of  a  forged 
check,  who  has  received  its  amount  from  the 
drawee,  has  the  burden  of  showing  that  he 
has  been  misled  or  prejudiced  by  the  draw- 
ee's mistake  in  making  payment,  where  he 
claims  the  right  to  retain  the  money  for 
that  reason.  First  Nat.  Bank  v.  Bank  of 
Wyndmere,  10:  49,  108  N.  W.  546,  15  N.  D. 
299. 

584.  Where  one  who  had  been  the  general 
manager  of  a  corporation  sells  his  stock 
under  an  agreement  that  a  note,  given  in 
part  payment  therefor,  shall  be  subject  to 
a  proportionate  deduction  on  account  of  any 
just  claims  existing  agamst  the  corporation, 
not  shown  by  its  books,  in  an  action  upon 
the  note,  proof  by  the  defendant  that  such 
claims  were  made  against  the  corporation, 
and  that  a  new  manager  paid  them  after  a 
full  investigation,  makes  out  a  prima  facie 
case  for  a  deduction,  and  casts  upon  the 
plaintiff  the  burden  of  showing  that  the 
claims  so  made  and  paid  were  not  just. 
Richolson  v.  Ferguson,  40:  855,  124  Pac.  360, 
87  Kan.  411. 

585.  The  taking  of  a  new  note  payable  at 
a  future  date  for  the  same  debt  evidenced 
by  a  past  due  note,  which  is  not  surren-- 
dered,  creates  a  presumption  that  action  on 
the  old  note  is  to  be  suspended  until  the 
maturity  of  the  new,  in  the  absence  of  any- 
thing to  indicate  a  contrary  intention. 
First  Nat.  Bank  v.  Livermore,  47:  274,  133 
Pac.  734,  90  Kan.  395. 

—  As  to  time  and  place  of  execntion. 

586.  The  presumption  that  a  note  was 
executed  on  the  day  of  its  date  arises  in  a 
prosecution  for  forging  it,  in  the  absence  of 
evidence  to  the  contrary.  People  v.  Camp- 
bell,  34:  58,   125  N.   W.  42,   160  Mich.   108. 

587.  A  note  is  presumed  to  be  made  anc> 
indorsed  in  the  state  where  it  is  dated  and 
payable.  Chemical  Nat.  Bank  v.  Kellogg, 
2:  299,  75  N.  E.  1103,  183  N.  Y.  92. 

—  As  to  consideration. 

Necessity     of     proving     consideration,     see 
Pleading,  244. 


EVIDENCE,  II.  k,  1. 


1117 


588.  To  defeat  recovery  on  a  note  in  writ- 
ing reciting  a  consideration,  on  the  ground 
of  absence  of  consideration,  the  defendant 
has  the  burden  of  showing  such  absence. 
Brokaw  v.  McElrov,  50:  835,  143  N.  W. 
1087,  162  Iowa,  288. 

589.  Upon  the  introduction,  by  the  maker 
of  a  promissory  note,  of  evidence  tending 
to  "show  absence  of  consideration,  the  bur- 
den of  showing  consideration  by  a  prepon- 
derance of  the  evidence  is  upon  the  one 
seeking  to  enforce  it.  Best  v.  Rocky  Moun- 
tain Nat.  Bank,  7:  1035,  85  Pac.  1124,  37 
Colo.  149. 

—  As  to  good  faith  of  purchase. 

.590.  To  entitle  an  indorsee  of  a  promis- 
sory note  given  for  the  purchase  price  of 
merchandise  sold  under  a  fraudulent  mis- 
representation as  to  the  character  of  the 
property,  to  enforce  the  same  against  the 
maker,  he  must  show  that  he  acquired  the 
note  before  maturity  in  good  faith  for  value. 
Schultheis  v.  Sellers,  22:  1210,  72  Atl.  887, 
223  Pa.  513. 

591.  The  transferee  of  warehouse  receipts 
for  merchandise  which,  under  the  statute, 
are  negotiable  to  the  same  extent  as  promis- 
sory notes,  has  the  burden  of  showing  that 
he  obtained  them  bona  fide,  where  his  as- 
signor, when  insolvent,  secured  the  goods 
on  credit  and  deposited  them  in  the  ware- 
house for  the  purpose  of  transferring  the 
receipts  and  defrauding  the  vendors  of  their 
property.  National  Bank  of  Commerce  v. 
Chatfield,  W.  &  Co.  10:  801,  101  S.  W.  765, 
118  Tenn.  481.  (Annotated) 
■Water  rights. 

Presumption  as  to  title  to  tide  water  bay, 

see  infra,  620. 
See  also  infra,  669,  671. 

592.  One  seeking  to  appropriate  the  flood- 
water  of  a  stream  as  against  the  right  of 
owners  of  water-bearing  strata  connected 
with  the  stream  has  the  burden  of  showing 
that  there  is  a  surplus  after  the  strata  are 
supplied.  Miller  v.  Bay  Cities  Water  Co. 
27:  772,  107  Pac.  115,  157  Cal.  256. 

593.  The  fact  that  water  which  had  been 
brought  onto  property  for  purposes  of  ir- 
rigation had  been  devoted  to  other  uses  for 
a  period  of  eleven  years,  and  had  been  made 
the  subject  of  conveyance,  rebuts  a  presump- 
tion of  abandonment.  Miller  v.  Wheeler, 
23:  1065,   103  Pac.  641,  54  Wash.  429. 

594.  The  burden  of  showing  abandonment 
of  water  which  has  been  brought  on  land 
for  the  purpose  of  irrigation,  which  rests 
upon  one  claiming  a  right  thereto  resting 
upon  the  fact  of  abandonment,  is  not  shifted 
by  the  fact  that  the  surplus  was  allowed 
to  run  into  a  natural  water  course.  Miller 
V.  Wheeler,  23:  1065,  103  Pac.  641,  54  Wash. 
429. 

Capital  stock;  subscription  to  stock. 

595.  A  holder  of  stock  in  a  building  and 
loan  association  who  claims  priority  in  pay« 
ment  because  of  acceptance  of  a  notice  of 
withdrawal  of  his  stock  before  the  corpo 
ration  became  insolvent  has  the  burden  of 
showing  that  his  right  became  fixed  before 
th«  insolvency  occurred.  Pacific  Coast  S*t. 
Digest  1-52  I,.R.A.(N.S.) 


Soc.   v.  Sturdevant,  49:  1142,   133   Pac.  485^ 
165  Cal.  687. 

596.  The  fact  that  several  times  the 
length  of  time  required  by  the  statute  of 
limitations  to  bar  an  obligation  on  a  con- 
tract to  subscribe  to  the  stock  of  a  railroad 
company  has  elapsed  since  the  contract  was 
made,  without  any  step  being  taken  to  per- 
fect the  subscription,  may  be  considered  in 
support  of  the  presumption  raised  by  other 
facts  in  the  case,  that  the  obligation  to  sub- 
scribe for  the  stock  has  been  terminated. 
Quinlan  v.  Green  County,  19:  849,  157  Fed. 
33,  84  C.  C.  A.  537. 

Gift. 

Presumption   that  money   of   wife   invested 

in  land  in  husband's  name  is  a  gift,  see 

Tbxjsts,  62. 
See    also    supra,    283,    284;     infra,    1921; 

Tbusts,  41,  60. 

597.  The  rule  with  respect  to  the  pre- 
sumption of  validity  and  the  burden  of 
proof  in  cases  of  wills  and  testaments  does 
not  apply  to  cases  of  gifts  or  contracts 
inter  vivos.  Smith  v.  Smith,  35:  944,  114 
Pac.  245,  84  Kan.  242. 

598.  One  to  whom  delivery  is  made  of  a 
check  on  a  bank,  intended  as  a  gift  causa 
mortis  to  a  third  person,  is  presumed,  in 
the  absence  of  a  contrary  showing,  to  be  the 
agent  or  trustee  of  the  donee.  Varley  v. 
Sims,  8:  828,  111  N.  W.  269,  100  Minn.  331. 

599.  Where  real  estate  is  purchased  in 
the  wife's  nanie,  from  funds  accumulated 
out  of  profits  of  a  saloon  business  conduct- 
ed by  her  under  a  license  in  the  name  of 
the  husband,  and  from  boarders  and  the 
earnings  of  minor  children,  the  evidence 
must  be  definite  and  convincing  to  rebut  the 
presumption  that  it  was  intended  as  a  gift 
to  her.  Beck  v.  Beck  (N.  J.  Err.  &  App.) 
35:  712,  80  Atl.   550,  78  N.  J.   Eq.  544. 

—  Acceptance  of. 

600.  Acceptance  of  a  gift  causa  mortis 
which  is  beneficial  to  the  donee  and  im- 
poses no  burdens  upon  him,  will  be  presumed 
as  matter  of  law.  Varley  v.  Sims,  8:  828, 
111  N.  W.  269,  100  Minn.  331. 

Trust. 

Presumption  as  to  trust  funds  in  bank,  see 

Banks,  214. 
Presumption  tliat  trustee  purchasing  title 

makes    purchase    in   aid   of    trust,    see 

Tbusts,  116. 
Alteration  of  instruments. 
Instructions  as  to,  see  Trial,  942. 
See  also  supra.  111,  229. 

601.  The  presumption,  where  a  contract 
prepared  by  the  use  of  a  typewriter  ap- 
pears to  have  been  changed  after  the  first 
impression  is  made,  is  that  the  change  was 
made  before  execution  and  delivery.  Strom- 
berg-Carlson  Teleph.  Mfg.  Co.  v.  Barber,  i8: 
680,  116  N.  W.  157,  81  Neb.  517. 

(Annotated) 

602.  That  entries  in  an  application  for  in- 
surance which  make  it  correspond  with  the 
policy  are  upon  the  margin,  and  written 
longitudinally,  does  not  furnish  presump- 
tive evidence  that  the  application  was 
changed  after  it  was  signed.     Waters  t.  Se- 


1118 


EVIDENCE,  II.  k,  2. 


curity  Life  &  Annuity  Co.  13:  805,  57  S.  E. 
437,  144  N.  C.  663. 

603.  The  burden  of  explaining  alterations 
in  bills  of  lading  on  the  faith  of  which  one 
has  advanced  money  is  on  him,  and  not  on 
the  railroad  company,  where  the  agent  whose 
name  is  signed  to  them  testifies  that  the 
alterations  were  made  after  they  had  left 
his  hands.  Franklin  Trust  Co.  v.  Philadel- 
phia, B.  &  W.  R.  Co.  22:  828,  70  Atl.  949, 
222  Pa.  96. 

—  Negotiable  instrnments. 

604.  An  indorsee  of  a  note  containing  an 
alteration  in  its  date  cannot  rely  upon  the 
presumption  that  the  alteration  was  made 
before  its  execution,  to  establish  the  validi- 
ty of  the  instrument,  if  the  alteration  was 
in  fact  made  under  circumstances  which 
avoid  it.  Barton  Sav.  Bank  &  T.  Co.  v. 
Stephenson,  51:  346,  89  Atl.  639,  87  Vt.  433. 

—  Deeds. 

605.  One  seeking  to  avoid  the  effect  of  a 
deed  because  of  an  alleged  alteration  has 
the  burden  of  showing  that  it  was  made 
after  delivery,  Tharp  v.  Jamison,  39:  100, 
134  N.  W.  583,  154  Iowa,  77.     (Annotated) 

606.  One  assailing  a  deed  showing  an  era- 
sure or  interlineation  has  the  burden  of 
proving  that  it  was  made  after  the  time  of 
execution.  Wicker  v.  Jones,  40:  69,  74  S.  E. 
801,  159  N.  0.  102. 

—  Wills. 

607.  In  an  action  to  contest  a  will  on  the 
ground  of  alleged  alterations,  the  burden  of 
proof  to  explain  an  erasure  in  the  instru- 
ment is  not  upon  the  defendant  in  the  first 
instance,  but  it  is  incumbent  upon  the  plain- 
tiff to  overcome  the  evidence  afforded  by  the 
fact  of  the  probate  of  the  instrument,  and 
to  show  its  invalidity  by  a  preponderance  of 
all  the  evidence.  Scott  v.  Thrall,  17:  184, 
96  Pac.  563,  77  Kan.  688.  (Annotated) 

2.  Ownership  or  possession. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Presumption  of  continuance  of  possession, 
see  supra,  317. 

Sufficiency  of  evidence  as  to,  see  infra,  XII. 
e. 

As  to  nature  of  possession  of  railroad  right 
of  way,  see  Adverse  Possession,  45. 

Presumption  as  to  ownership  of  copyright 
of  article  in  encyclopedia,  see  CorY- 
RIGHT,    8. 

Prima  facie  evidence  of  title  of  grantor  of 
plaintiff  in  ejectment,  see  Ejectment, 
7. 

Sufficiency  of  allegations  to  raise  presump- 
tion of  present  ownership,  see  Plead- 
ing, 222. 

Husband  and  ivife. 

That  funds  for  paying  taxes  on  separate 
property  belonged  to  community,  see 
Husband  and  Wife,  82. 

See  also  supra,  599, 

608.  Where  husband  and  wife  accumulate 
property  by  their  joint  efforts,  and  invest 
it  in  the  name  of  one  of  them,  there  is  no 
presumption  arising  from  their  station  in 
Digest  1-52  L.R.A.(N.S.) 


life  that  they  intended  it  to  be  a  common 
hoard,  in  which  both  should  be  equally  in- 
terested. Beck  V.  Beck  (N.  .J.  Err.  & 
App.)  35:712,  80  Atl.  550,  78  N.  J.  Eq. 
544.  (Annotated) 

009.  The  presumption  that  money  in 
bank  and  notes  and  other  securities  owned 
by  a  married  man  at  the  time  of  his  death 
were  community  property  is  overcome  *  by 
proof  that  they  were  the  proceeds  of  land 
owned  by  him  at  the  time  of  his  marriage, 
and  of  the  crops  raised  thereon.  Re  Pep- 
per, 31:  1092,  112  Pac.  62,  158  Cal.  619. 

610.  An  existing  original  judgment  cred- 
itor of  a  married  woman  is  not  an  encum- 
brancer in  good  faith  for  a  valuable  con- 
sideration, within  the  meaning  of  a  statute 
rendering  conclusive,  in  favor  of  such  en- 
cumbrancer, the  presumption  that  real  es- 
tate title  to  which  is  vested  in  her  is  her 
separate  property.  Fulkerson  v.  Stiles,  26: 
181,  105  Pac.  966,  156  Cal.  703. 

611.  A  loan  by  a  married  woman  to  a 
firm  of  which  her  husband  is  a  member,  in 
the  absence  of  any  evidence  as  to  its  source 
further  than  that  the  loan  was  made,  will 
be  presumed  to  have  come  from  her  sepa- 
rate estate,  where  the  statute  provides  that 
a  woman's  property  shall,  upon  her  mar- 
riage, remain  her  separate  estate,  and  that 
she  may  receive  property  in  the  same  man- 
ner as  if  she  were  sole.  James  v.  Gray, 
i:  321,  131  Fed.  401,  65  C.  C.  A.  385. 
Vehicles. 

612.  Evidence  that  the  wagon  which  ran 
over  the  plaintiff  was  specilically  marked 
with  the  defendant's  name  is  sufficient  to 
justify  the  inference  that  the  defendant  was 
the  owner.  Dennery  v.  Great  Atlantic  & 
Pacific  Tea  Co.  (N.  J.  Err.  &  App.)  39:  574i 
81  Atl.  861,  82  N.  J.  L.  517. 

613.  That  the  manufacturer's  license 
number  was  on  an  automobile  when  it  in- 
jured a  person  on  the  highway,  after  it  had 
been  paid  for  by  a  purchaser  and  taken  from 
the  factory,  does  not  show  that  the  machine 
belonged  to  the  manufacturer,  if  it  was  his 
custom  to  permit  purchasers  to  use  the 
number  until  they  could  procure  one  of 
their  own.  Janik  v.  Ford  Motor  Co.  52: 
294,  147  N.  W.  510,  180  Mich.  557, 

Bank  deposit  made  as  "agent." 

014,  Money  on  deposit  in  a  bank  in  the 
name  of  a  certain  person,  "agent,"  is  prima 
facie  his  property,  and  therefore  subject  to 
garnishment  for  his  debt,  to  defeat  which  he 
has  the  burden  of  showing  that  it  in  fact 
belonged  to  an  undisclosed  principal.  Sils- 
bee  State  Bank  v.  French  Market  Grocery 
Co.  34:  1207,  132  S.  W.  465,  103  Tex.  629. 

(Annotated) 
Real  property  generally. 

615.  Unimproved  and  unoccupied  land  is 
deemed  to  be  in  possession  of  the  holder  of 
the  legal  title.  Butler  v.  Smith,  28:  436, 
120  N.  W.  1106,  84  Neb.  78. 

616,  The  presumption  of  possession  of  all 
lands  covered  by  a  deed,  which  is  created  by 
statute,  is  not  destroyed  by  evidence  of  the 
erection  of  a  fence  a  few  feet  inside  the  true 


EVIDENCE,  II.  k,  2. 


1119 


boundary    line.      Cottrell    v.    Pickering,    lo: 
404,  88  Pac.  696,  32  Utah,  02. 

617.  A  legal  and  valid  conveyance  of  real 
estate  by  tax  deed  carries  with  it  a  prima 
facie  right  of  possession,  and,  where  the 
property  is  vacant  and  unoccupied,  the 
constructive  possession  of  the  premises  is 
deemed  to  be  in  the  holder  of  such  title. 
Steltz  V.  Morgan,  28:  398,  101  Pac.  1057,  16 
Idaho,  308. 

618.  An  abstract  of  a  title  derived 
tlirougli  deeds  from  tlie  lieirs  of  a  deceased 
owner  wliose  estate  was  not  probated  may 
be  made  to  exhibit  a  good  title  by  attach- 
ing to  it  tlie  affidavit  of  credible  persons 
who  know  the  facts,  showing  intestacy, 
heirship,  capacity  to  convey,  and  the  satis- 
faction of  all  claims  against  the  estate  of 
the  deceased,  and  when  such  showing  has 
been  made  it  devolves  upon  tl)e  vendee  ob- 
jecting to  the  title  and  resisting  a  specific 
performance  of  a  contract  to  purchase,  to 
sliow  wherein  the  title  is  bad  or  doubtful, 
or  that  the  evidence  necessary  to  establish 
the  facts  shown  in  the  affidavit  is  so  un- 
certain as  to  render  the  title  doubtful. 
Van  Gundy  v.  Shewey,  47:  645,  133  Pac.  720, 
90  Kan.  253. 

619  When  a  deed  conveys  a  tract  of  land, 
and  gives  to  the  grantee,  as  an  appurtenance 
thereof,  the  right  to  open  and  use  a  private 
road  along  one  side  of  it,  it  will  be  pre- 
sumed that  the  grantor  did  not  intend  to  re- 
tain a  very  long  and  narrow  strip  of  land 
between  the  tract  conveyed  and  the  road  so 
provided  for;  and,  when  such  road  is  de- 
scribed as  intended  to  run  between  the  tract 
of  land  conveyed  and  an  adjacent  tract 
belonging  to  a  third  party,  it  will  be  pre- 
sumed, in  the  absence  of  anything  on  the 
face  of  the  deed,  or  in  the  circumstances  and 
situation  of  the  property,  indicating  the  con- 
trary, that  the  grantor  did  not  intend  to  re- 
tain a  strip  of  land  between  the  road  and 
the  lands  of  such  third  party,  so  narrow  as 
to  be  of  no  practical  use  to  him.  Clavton 
V.  Gilmer  County  Court,  2:598,  52  S.  E.'l03, 
58  W.  Va.  253. 
Tide-water  bay. 

620.  The  title  to  a  tide-water  bay  is  pre- 
sumed,  in   the   absence   of   evidence    to   the 
contrary,  to  be  in  the  state.    Cain  v.  Simou- 
son,  3:  205,  39  So.  571,  —  Ala.  — . 
Uasemeiit. 

621.  One  undertaking  to  close  a  pass  way 
over  his  land,  which  has  been  enjoyed  by  a 
neighbor  for  nearly  fifty  years,  has  the 
burden  of  showing  that  the  use  was  merely 
permissive,  and  to  explain  away  the  pre- 
sumption that  it  was  under  color  of  right. 
Schwer  v.  Martin,  7:  614,  97  S.  W.  12,  29 
Ky.  L.  Rep.  1221. 

622.  The  mere  facts  that  one  using  a  pass 
way  over  another's  land  never  asked  per- 
mission, and  that  the  owner  of  the  land 
never  gave  it,  are  not  of  themselves  suffi- 
cient to  overcome  the  presumption,  arising 
from  long-continued  use,  that  it  was  claimed 
as  matter  of  right.  Schwer  v.  Martin,  7: 
614,  97  S.  W.  12,  29  Ky.  L.  Rep.  1221. 

623.  One  seeking  to  close  a  pass  way 
over  his  land,  which  has  been  enjoyed  by  a 
Digest  1-52  L.R.A.(N.S.) 


neighbor  for  a  period  of  forty  years,  has  the 
burden  of  showing  that  the  use  was  per- 
missive, and  not  under  claim  of  right.  Smith 
v._  Pennington,  8:  149,  91  S.  W.  730,  122  Ky. 
355-  (Annotated) 

624.  Proof  by  one  claiming  a  right  of  way 
across  another's  property  of  long-continued 
use  to  the  knowledge  of  the  property  owner, 
without  interruption,  places  the  burden  on 
the  owner  of  the  property  to  show  that  it 
was  permissive,  and  not  adverse.  Barber  v. 
Bailey,  44:  98,  84  Atl.  608,  85  Vt.  219. 

(Annotated) 
Dedication. 
Presumption    of    dedication    from    use,    see 

Dedication,  9-14. 
Presumed  grant. 
See  also  infra,  627,  709. 

625.  A  presumption  of  a  grant  from  lapse 
of  time  with  possession  never  ai'ises  where 
all  the  circumstances  are  consistent  with 
the  nonexistence  of  such  grant.  Logan  v. 
Ward,  5:  156,  52  S.  E.  398,  58  W.  Va.  366. 

626.  After  a  great  lapse  of  time  and  a 
series  of  circumstances  disclosing  an  un- 
challenged fee-simple  title,  during  such  peri- 
od, of  property  originally  held  under  a 
lease,  the  courts  will  presume  whatever 
grant  is  necessary  to  extinguish  the  land- 
lord's title,  in  an  ejectment  proceeding 
against  one  claiming  under  such  title. 
Townsend  v.  Boyd,  12:  1148,  66  Atl.  1099, 
217  Pa.  386. 

Presumption  from  possession. 

Presumption  of  payment,  see  infra,  635. 

From  possession  of  stolen  property,  see  in- 
fra, 696-698. 

From  possession  of  liquor,  see  Constitx;- 
TiONAL  Law,  142. 

Validity  of  statute  as  to,  see  Constitution- 
al Law,  277. 

See  also  supra,  625. 

627.  The  law  will  not  presume  a  grant  of 
his  undivided  share  from  one  joint  tenant 
to  another  simply  from  mere  silent  posses- 
sion by  one  for  k  long  time.  Logan  v. 
Ward,  5:  156,  52  S.  E.  398,  58  W.  Va.  366. 

628.  Where  the  source  of  title  to  personal- 
ty is  a  will,  possession  raises  no  presumption 
as  to  extent  of  the  interest  in  it.  Hopkins 
V.  Heywood,  49:  710,  86  Atl.  305,  86  Vt. 
486. 

629.  Ownership  and  possession  being 
shown  of  a  building  located  upon  the  land 
of  another,  it  will  not  be  presumed  that  the 
building  was  located  without  authority. 
Jones  V.  Great  Northern  R.  Co.  9:  603,  110 
N.  W.  260,  100  Minn.  56.  (Annotated) 

630.  Twenty  years'  possession  by  lessees 
of  the  commonwealth  of  a  pond  which  was 
in  private  ownership  is  prima  facie  evidence 
of  an  acquisition  of  the  title  by  the  public 
by  prescription.  Malone  ex  rel.  Harbor  & 
Land  Comrs.  v.  Ellis,  15:  1120,  84  N.  E.  430, 
198  Mass.  91. 

631.  Non-negotiable  as  well  as  negotiable 
instruments  are  within  the  rule  that  pro- 
duction of  a  note  at  the  trial  without 
indorsement  is  sufficient  to  entitle  the  equi- 
table owner  to  recover  thereon,  the  pro- 
duction being  prima  facie  evidence  of  owner- 
ship,    nothing     else     appearing.      Johnson 


1120 


EVIDENCE,  II.  1,  m. 


County  Sav.  Bank  v.  Scoggin  Drug  Co.  50: 
581,  67  S.  E.  253,  152  N.  C.  142. 

(Annotated) 

632.  The  fact  that  goods  are  found  in  the 
house  of  a  husband  may,  in  the  absence  of 
evidence  that  they  are  the  separate  property 
of  his  wife,  be  sufficient  evidence  of  prop- 
erty in  him  to  support  an  indictment  aver- 
ring them  to  be  his  property.  Rex  v.  Mur- 
ray, 3  B.  R.  C.  775,  2  K.  b!;  385.  Also  Re- 
ported in  75  L.  J.  K.  B.  N.  S.  593,  70  J.  P. 
295,  95  L.  T.  N.  S.  295,  22  Times  L.  R.  596. 
Ouster. 

633.  In  ejectment  by  one  tenant  in  com- 
mon against  a  cotenant  who  has  been  in  un- 
disputed possession  and  use  of  the  land  for 
twenty  years,  an  actual  ouster  on  his  part 
when  the  possession  was  first  taken  will  be 
presumed.  Dobbins  v.  Dobbins,  10:  185,  53 
S.  E.  870,  141  N.  C.  210.  (Annotated) 

634.  The  presumption  of  ouster  by  undis- 
puted possession  of  real  estate  by  one  tenant 
in  common  for  a  period  of  twenty  years  ia 
not  rebutted  by  the  disability  of  the  adverse 
claimants  during  a  portion  of  the  time, 
where  possession  was  taken  during  the  life- 
time of  their  ancestor,  who  was  under  no 
disability.  Dobbins  v.  Dobbins,  10:  185,  53 
S.  E.  870,  141  N.  C.  210. 

I.  Payment;  credit. 

(See  also   same  heading  in  Digest  L.R.A. 
1-10.) 

Evidence  of  generally,  see  infra,  XI.  m. 

635.  The  presumption  of  payment  of  the 
debt  upon  twenty  years'  undisturbed  and  un- 
explained possession  of  mortgaged  land  by 
the  mortgagor  may  be  repelled  by  any  act 
recognizing  the  validity  of  the  mortgage. 
Frye  v.  Hubbell,  17:  1197,  68  Atl.  325,  74 
N.  H.  358. 

636.  The  presumption  that  a  check  is  given 
in  payment  of  a  debt  is  not  conclusive,  and 
may  be  wholly  overcome  by  other  evidence. 
Meyer  v.  Doherty,  13:  247,  113  N.  W.  671, 
133  Wis.  398. 

637.  In  an  action  by  an  employee  to  re- 
cover the  amount  of  a  cash  bond  deposited 
with  the  employer,  the  introduction  in  evi- 
dence by  the  latter,  of  a  check  which  had 
been  accepted  and  cashed  by  the  employee, 
and  which  recited-  that  it  was  the  return  in 
full  of  the  cash  bond  less  a  sum  of  money 
wrongfully  appropriated,  does  not  make  a 
prima  facie  case  of  payment  in  full,  or 
shift  the  burden  of  proof  to  the  plaintiff  to 
show  that  he  had  not  collected  and  retained 
the  sums  referred  to  in  the  check.  Demeules 
V.  Jewel  Tea  Co.  14:  954,  114  N.  W.  733,  103 
Minn.  150. 

Negotiable  paper. 

Rebuttal  of  presumption,  Bee  infra,  1922. 

Credit. 

Presumption  of  sale  for  cash,  see  Sale,  103. 

638.  Upon  an  accounting  between  princi- 
pal and  agent,  the  agent  has  the  burden  of 
showing  that  items  charged  in  his  accoimt 
Digest  1-52  Ii.R.A.(N.S.) 


as  having  been  paid  to  the  principal  were 
proper  credits.     Little  v.   Phipps,  34:  1046, 
94  N.  E.  260,  208  Mass.  331. 
Application  of  payment. 

639.  The  law  will  not  presume  that  pay- 
ment of  a  year's  interest  upon  a  note  six 
months  after  due  is  to  be  applied  partly  for 
past  and  partly  for  future  interest.  Daviess 
County  Bank  &  T.  Co.  v.  Wright,  17:  1122, 
110  S.  W.  361,  129  Ky.  21. 

m.  Miscellaneous. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Presumption  of  confidential  character  of 
communications  between  husband  and 
wife,  see  infra,  1310. 

Presumption  attending  proceeding  in  divi- 
sion of  circuit  court,  see  Coukts,  198. 

Inference  of  desertion  from  failure  of  hus- 
band and  wife  to  live  together,  see  Dl- 
VOBCE  AND  Separation,  38. 

Presumption  in  aid  of  candidate  receiving 
next  highest  number  of  votes,  where 
candidate  receiving  highest  number  is 
ineligible,  see  Elections,  35. 

Presumption  of  approval  by  president  of 
location  of  railroad,  see  Public  Lands, 
8. 

See  also  supra,  66,  170. 

640.  Where  an  act  is  done  which  can  be 
done  legally  only  after  the  performance  of 
some  prior  act,  proof  of  the  latter  carries 
with  it  a  presumption  of  the  due  perform- 
ance of  the  prior  act.  Cyr  v.  Walker,  35: 
795,  116  Pac.  931,  29  Okla.  281. 

641.  In  order  to  sustain  an  injunction 
against  an  act  of  trespass,  on  the  ground 
that  the  injury  occasioned  thereby  is  irrep- 
arable, the  facts  constituting  such  irrepara- 
ble injury  must  be  alleged  and  proved. 
Pence  v.  Carney,  6:  266,  52  S.  E.  702,  58  W. 
Va.  296. 

642.  The  presumption  is  in  favor  of  the 
reasonableness  and  propriety  of  a  rule 
adopted  under  statutory  authority,  by  a 
school  board  for  the  government  of  pupils. 
Kinzer  v.  Toms,  3:  496,  105  N.  W.  686,  129 
Iowa,  441. 

643.  An  employee  wrongfully  discharged 
prior  to  the  termination  of  his  contract  of 
employment  need  not  allege  and  prove,  in 
an  action  to  recover  the  stipulated  wages 
for  the  entire  term  covered  by  the  contract, 
that  in  the  interim  he  was  unable  to  ob- 
tain other  employment.  Beissel  v.  Ver- 
million Farmers'  Elev.  Co.  12:  403,  113  N. 
W.  575,  102  Minn.  229. 

644.  Although  a  property  owner  may, 
upon  breach  of  a  building  contract,  settle 
claims  of  subcontractors  for  which  liens 
could  be  established,  without  requiring  their 
establishment,  and  look  to  the  contractor  for 
reimbursement,  he  has  the  burden  of  show- 
ing that  the  claims  paid  weie  clearly  and 
justly  due.  Bagaglio  v.  Paollno,  44:  80,  85 
Atl.  1048,  35  R.  I.  171.  (Annotated) 


EVIDENCE,  II.  m. 


1121 


645.  In  an  action  against  an  infant  for 
necessaries  the  onus  is  on  the  plaintiff  to 
prove  not  only  that  the  goods  supplied  were 
suitable  to  the  condition  in  life  of  the 
infant,  but  that  he  was  not  sufficiently  sup- 
plied with  goods  of  that  class  at  the  time 
of  the  sale  and  delivery — especially  in  view 
of  §  2  of  the  Sale  of  Goods  Act  1893,  which 
provides  that  where  necessaries  are  sold 
and  delivered  to  an  infant  or  incompetent 
person  he  must  pay  a  reasonable  price  there- 
for, and  defines  necessaries  as  "goods  suit- 
able to  the  condition  in  life  of  such  infant 
or  minor  or  other  person,  and  to  his  actual 
requirements  at  the  time  of  the  sale  and  de- 
liverv."  Nash  v.  Inman,  1  B.  R.  C.  143, 
[1908]  2  K.  B.  1.  Also  Reported  in  77  L. 
J.  K.  B.  N.  S.  626,  98  L.  T.  N.  S.  658,  24 
Times  L.  R.  401,  52  Sol.  Jo.  335. 

(Annotated) 

646.  In  an  action  to  recover  damages  for 
breach  of  a  contract  to  convey  land,  it  will 
be  presumed  that  improvements  placed  up- 
on the  premises  by  a  tenant  in  possession 
were  removed  at  the  expiration  of  his  lease, 
where  the  land  contract  failj  to  specify  the 
improvements,  but  recognizes  their  exist- 
ence and  the  right  of  the  tenant  to  remove 
them.  Beck  v.  Staats,  i6:  768,  114  N.  W. 
633,  80  Neb.  482. 

647.  One  who  desires  a  decree  setting 
aside  a  deed  of  real  estate  because  a  por- 
tion of  it  was  secured  by  false  representa- 
tions to  apply  only  to  such  portion,  upon 
return  of  a  proportionate  part  of  the  pur- 
chase money,  must  offer  evidence  which 
will  enable  the  court  to  make  an  apportion- 
ment, and  upon  his  failure  to  do  so,  the 
court  may  deal  with  the  transaction  as  an 
entirety.  Kathan  v.  Comstock,  28:  201,  122 
N.  W.  1044,  140  Wis.  427. 

648.  No  presumption  that  a  dog  which,  to 
the  knowledge  of  its  master,  has  vicious 
propensities,  will  not  display  such  propen- 
sities toward  his  keeper  as  well  as  against 
a  stranger,  exists.  Emmons  v.  Stevane 
(N.  J.  Err.  &  App.)  24:  458,  73  Atl.  544,  77 
N.  J.  L.  570. 

649.  To  entitle  a  creditor  of  a  bank  cash- 
ier, who  has  been  untruthfully  notified  by 
the  latter  that  he  has  placed  the  sum  to 
his  credit  on  the  books  of  the  bank,  to  the 
benefit  of  the  rule  that,  where  one  of  two 
innocent  persons  must  suffer  loss  by  the 
act  of  a  third,  it  must  fall  upon  him  who 
enabled  such  person  to  occasion  it,  the  cred- 
itor must  affirmatively  show  that  he  might 
have  collected  the  sum  from  the  cashier 
had  he  not  relied  on  the  notification.  Lang- 
lois  v.  Gragnon,  22:  414,  49  So.  18,  123  La. 
453. 

650.  The  ordinary  presumption  is  that  a 
witness  who  uses  the  expression  "I  think"' 
means  that  his  observation  was  indistinct, 
or  his  recollection  uncertain,  regarding  the 
matter  testified  to,  rather  than  that  he  is 
without  personal  information  on  the  sub- 
ject. Losey  v.  Atchison,  T.  &  S.  F.  R.  Co. 
33:  414,  114  Pac.  198,  84  Kan.  224. 

651.  Upon  an  application  to  stay  proceed- 
ings in  an  ordinary  action,  the  defendant 
must  show  by  express  evidence  that  the  aC' 
Digest   1-52  L.R.A.(N.S.) 


tion  is  frivolous  and  vexatious,  or  that  for 
some  other  reason  is  should  be  stayed ;  but 
upon  an  application  to  stay  proceedings  in 
an  action  to  set  aside  a  former  judgment 
of  the  court,  the  onus  is  on  the  plaintiff  to 
show  that  he  has  a  reasonable  probability 
of  success.  Ronald  v.  Harper,  4'  B.  R.  C. 
972,  [1913]  Vict.  L.  R.  311. 
Commerce. 
See  also  supra,  102. 

652.  If  there  be  a  doubt  as  to  whether  a 
sale  made  by  an  agent  in  one  state  for  a 
merchant  in  another  was  completed  by  the 
acceptance  of  the  orders  by  the  principal  and 
his  shipping  of  the  goods,  the  contrary  can- 
not be  assumed  in  order  to  sustain  a  convic- 
tion for  the  violation  of  a  city  ordinance  im- 
posing a  license  tax  upon  persons  soliciting 
orders  for  the  sale  of  goods,  but  the  prose- 
cution must  establish  its  case.  Kinsley  v. 
Dyerly,  19:  405,  98  Pac.  228,  79  Kan.  1. 
Customs  and  usage. 
Presumption    that    electric    light    company 

follows  usual  custom  in  such  business, 
see  Mandamus,  122. 
Adequacy  of  remedy  at  lavr. 

653.  A  lessor  of  property  for  oil  and  gag 
development  has,  in  case  the  property  is  not 
developed  within  a  reasonable  time,  the 
burden  of  showing  that  a  remedy  in  dam- 
ages is  not  adequate  for  failure  to  drill 
wells  to  protect  the  land  from  damage  from 
adjoining  property,  so  as  to  justify  a  for- 
feiture of  the  lease.  Howerton  v.  Kansas 
Natural  Gas  Co.  34:  34,  106  Pac.  47,  81  Kan.- 
553. 

Amount  due  or  received. 
See  also  infra,  667. 

654.  One  suing  the  employer  on  an  assign- 
ment of  wages  which  was  made  to  secure  a 
loan  must  prove  the  amount  due  from  the 
assignor.  Chicago,  B.  &  Q.  R.  Co.  v.  Pro- 
volt,  16:  587,  93  Pac.  1120,  42  Cob.  103. 

655.  One  entitled  to  an  accounting  from 
an  heir  for  money  received  by  her  from 
her  father's  executor,  derived  from  the  sale 
of  her  property  by  the  father  in  his  lifetime, 
but  to  which  she  thereafter  asserted  title, 
has  the  burden  of  showing  the  amount  she 
received.  Garbutt  v.  Mayo,  13:  58,  57  S.  E. 
495,  128  Ga.  269. 
Amount  ot  damages. 

656.  In  a  suit  on  a  sheriff's  bond  for  fail- 
ure to  execute  or  return  final  ^irocess,  the 
presumption  is  that  plaintiff  has  been  dam- 
aged to  an  amount  equal  to  the  execution, 
and  the  burden  is  upon  the  defendants  to 
mitigate  the  damages,  or  show  that  the 
plaintiff  was  not  injured  by  the  breach  of 
official  duty ;  but  where  the  process  is  mesne, 
there  is  no  such  presumption,  and  the  bur- 
den is  upon  the  plaintiff',  who  must  allege 
and  prove  actual  damages  in  order  to  recov- 
er on  the  bond.  Beck  &  G.  Hardware  Co.  v. 
Knight,  3:  420,  48  S.  E.  930,  121  Ga.  287. 

(Annotated) 

657.  A  patentee  suing  to  recover  profits 
from  an  infringer  who  has  added  nonin- 
fringing and  valuable  improvements  dis- 
charges t,he  burden  resting  upon  him  of 
showing  what  part  of  the  commingled 
profits  are  attributable  to  the  use  of  his 

71 


1122 


EVIDENCE,  II.  m. 


invention  by  proving  the  existence  of  such 
profits  and  the  impossibility  of  accurately 
or  approximately  separating  them  from 
those  arising  out  of  defendant's  additions, 
and  the  defendant  must  then  carry  the 
burden  of  such  separation  if  he  is  to  escape 
liability  for  the  entire  profits.  Westing- 
house  Electric  &  Mfg.  Co.  v.  Wagner  Elec- 
tric &  Mfg.  Co.  41:  653,  32  Sup.  Ct.  Rep. 
691,  225  U.  S.  604,  56  L.  ed.  1222. 

(Annotated) 
£zcessiveness  of  levy. 

658.  One  who  attacks  a  levy  as  void  for 
excessiveness  has  the  burden  of  sustaining 
his  contention.  Bridger  v.  Exchange  Bank, 
8:463,  56  S.  E.  97,  126  Ga.  821. 

Time  of  occnrrence. 

659.  The  presumption  that  a  shortage 
shown  to  exist  in  the  accounts  of  a  public 
officer  in  a  certain  term  occurred  during 
that  term  does  not  obtain  where  the  evi- 
dence is  merely  that  such  a  shortage  exists, 
and  it  appears  or  is  probable  that  prior 
shortages  shown  to  have  arisen  during  other 
terms  may  have  been  included  in  making  up 
such  shortage.  Dickinson  v.  White,  49:  362, 
143  N.  W.  754,  25  N.  D.  523. 

660.  One  claiming  the  benefit  of  a  statute 
making  void  a  conveyance  by  a  man  on  and 
after  the  day  on  which  a  suit  for  divorce  is 
brought  against  him,  in  fraud  of  his  wife's 
rights,  must  show  that  the  suit  was  filed 
before  the  conveyance  was  made.  Sparks 
V.  Taylor,  6:  381,  90  S.  W.  485,  99  Tex.  411. 
Estoppel. 

661.  The  burden  is  upon  the  party  who 
relies  upon  estoppel  to  prove  clearly  and 
unequivocally  every  fact  essential  to  the 
estoppel.  Kroll  v.  Close,  28:  571,  92  N.  E. 
29,  82   Ohio   St.   190. 

Application  for  building  permit. 

662.  The  making  of  an  application  for 
permission  to  erect  a  building  on  a  city  lot 
will  be  presumed  after  the  lapse  of  twenty 
years,  where  its  erection  without  a  permit 
would  have  subjected  the  owner  to  prose- 
cution which  was  never  instituted.  Krause 
v.  El  Paso,  14:  582,  106  S.  W.  121,  101  Tex. 
211. 

Necessity  for  condemnation. 

603.  Municipal  authorities  with  power  to 
condemn  a  water  supply  if  necessary  need 
not,  in  a  proceeding  to  assess  the  damages 
to  be  provided  for  the  taking,  establish  its 
necessity,  but  the  burden  of  showing  ab- 
sence of  necessity  rests  upon  the  property 
owner.  Board  of  Water  Comrs.  v.  Johnson, 
41:  1024,  84  Atl.  727,  86  Conn.  151, 

664.  A  property  owner  is  not  required  to 
disprove  the  facts  stated  in  a  petition  to 
take  land  which  is  alleged  to  be  necessary 
for  a  public  use,  where  he  expressly  trav- 
erses such  facts  by  his  answer,  under  a  stat- 
ute providing  that  he  may  show  caus% 
against  the  prayer  of  the  petition,  and  may 
disprove  any  of  the  facts  stated  therein, 
and,  if  no  sufficient  cause  is  shown  against 
granting  the  prayer  of  the  petition,  an  or- 
der shall  be  made,  appointing  commission- 
ers, since  the  effect  of  the  statute  is  simply 
to  put  the  petitioner  to  his  proofs.  Pere 
Marquette  R.  Co.  v.  United  States  Gypsum 
Digest  1-52  I,.R.A.(N.S.) 


Co.  22:  181,  117  N.  W.  733,  154  Mich.  290. 
Railroads;  carriers. 

Burden  of  proving  defenses,  see  supra,  100, 
101. 

665.  Where  a  carrier  sells  goods  without 
notice  to  the  shipper,  the  burden  of  proof 
is  on  him  to  show  inability  to  communi- 
cate with  the  shipper,  as  well  as  an  emer- 
gent condition  of  the  goods,  requiring  a 
sale  to  prevent  loss.  Alabama  G.  S.  R.  Co. 
V.  Mclienzie,  45:  18,  77  S.  E.  647,  139  Ga. 
410. 

666.  A  state  statute  prescribing  maximum 
coal  rates  for  the  transportation  by  common 
carriers  of  coal  in  car  load  lots  within  the 
state  is  presumptively  valid,  and  the  burden 
is  upon  the  carrier  to  prove  that  the  rates 
therein  prescribed  are  clearly  unreasonable. 
State  ex  rel.  McCue  v.  Northern  P.  R.  Co. 
25:  looi,  120  N.  W.  869,  19  N.  D.  45. 

607.  A  passenger  is  not  bound  to  make 
strict  proof  of  the  amount  alleged  to  have 
been  received  by  the  carrier  for  his  trans- 
portation, in  an  action  to  recover  damages 
for  negligently  injuring  him.  Pittsburgh, 
C.  C.  &  St.  L.  R.  Co.  v.  Higgs,  4:  1081,  76 
N.  E.  299,  165  Ind.  694. 

668.  A  section  of  railroad  which  is  a 
continuation  of  the  main  line  to  reach  the 
terminus  originally  established  will  be  pre- 
sumed to  be  for  public  use.  Central  R.  Co. 
V.  Union  Springs  &  N.  R.  Co.  2:  144,  39  So. 
473,  144  Ala.  639. 

Condition  of  things. 
Intoxicating  character  of  liquors,  see  infra, 
692-^695. 

669.  All  subterranean  waters  are  pre- 
sumed to  be  percolating  waters,  until  it  ia 
shown  that  they  exist  in  a  known  and  well- 
defined  channel.  Pence  v.  Carney,  6:  266, 
52  S.  E.  702,  58  W.  Va.  296. 

670.  Where  a  mortgage  given  to  secure 
several  promissory  notes  due  at  different 
times  is  foreclosed  upon  failure  to  pay  the 
earlier  ones,  and  the  property  bid  in  by  the 
holder,  the  maker  in  a  suit  upon  a  later 
note  has  the  burden  of  showing  that  the 
value  of  the  property  was  sufficient  to 
satisfy  the  note  in  suit  as  well  as  the 
earlier  ones.  McKeen  v.  Cook,  3:  343,  62 
Atl.  729,  73  N.  H.  410,  (Annotated) 
—  Xon-navigability. 

671.  A  prima  facie  presumption  of  non- 
navigability  results  from  failure  to  mean- 
der a  stream,  or  to  declare  it  navigable  by 
legislation.  Allaby  v,  Mauston  Electric 
Service  Co.  16:  420,  116  N.  W.  4,  135  Wis. 
345. 

Malicious  prosecution  or  false  im- 
prisonment. 

Presumption  of  malice,  see  supra,  236,  237. 

Burden  of  proving  absence  of  good  faith, 
see   supra,   275. 

672.  The  burden  of  establishing  the 
wrongfulness  of  an  imprisonment  is  upon 
one  seeking  to  recover  damages  therefor, 
until  a  prima  facie  case  has  been  made 
out.  Smith  V,  Clark,  26:  953,  106  Pac.  653, 
37  Utah,  116. 

673.  The  burden  is  on  defendants,  in  an 
action  for  unlawful  arrest  and  false  impris- 
onment, to  show  that  it  was  by  authority  of 


EVIDENCE,  II.  m. 


1123 


law.      McAleer    v.    Good,    lo:  303,    65    Atl. 
934,  216  Pa.  473.  (Annotated) 

liibel  and  slander. 

Presumption  of  malice,  see  supra,  241-254. 

Sufficiency  of  presumption  to  support  con- 
viction,   see    Appeal   and   Error,    930. 

Malice  as  essential  element  of  action  for 
libel  or  slander,  see  Libel  and  Slan- 
der, 74.  85,  86,  94,  95,  98,  102,  108- 
111,  159. 

Necessity  of  proving  special  damages,  see 
Libel  and  Slander,  88,  160-162. 

See  also  supra,  192,  254. 

674.  The  burden  of  showing  the  falsity 
of  the  publication  is  not  placed  on  plaintiff 
by  a  plea  of  privilege  in  an  action  for  libel 
in  attacking  plaintiff's  moral  character. 
Tanner  v.  Stevenson,  30:  200,  128  S.  W.  878, 
138  Ky.  578. 

675.  If  an  article  published  is  libelous 
per  se,  the  proof  of  the  publication  makes  a 
prima  facie  case;  and  it  is  for  the  defend- 
ant to  offer  such  proof  as  he  may  desire, 
showing  the  truth  of  the  article  published, 
and  that  the  same  was  published  with  good 
motives  and  for  justifiable  ends.  State  v. 
Sheridan,  15:  497,  93  Pac.  656,  14  Idaho,  222. 

676.  In  an  action  for  libel  the  plaintiff 
has  the  burden  of  proof  that  the  defendant 
is  responsible  for  tlie  libelous  publication, 
and  the  defendant  has  the  burden  as  to  the 
truth  of  the  matter  charged,  and  that  it 
was  published  with  good  motives  and  for 
justifiable  ends.  Bigley  v.  National  Fidel- 
ity &  C.  Co.  50:  1040,  144  N.  W.  810,  94 
Neb.  813. 

G77.  The  commitment  by  the  court  of  chil- 
dren upon  the  charge  of  vagrancy  and  in- 
corrigibility after  the  publication  by  a  news- 
paper of  an  article  charging  their  mother 
with  abusing  them  does  not  show  that  the 
publication  was  quasi  privileged,  so  as  to 
cast  the  burden  upon  the  mother  of  show- 
ing the  falsity  of  the  statement,  and  ability 
to  discover  such  falsity  by  the  exercise  of 
ordinary  care,  in  order  to  make  out  a  case 
of  libel.  Kelly  v.  Independent  Pub.  Co. 
38:  1 160,  122  Pac.  735,  45  Mont.  127. 
Service    of  process. 

678.  After  a  long  lapse  of  time,  minors 
will  be  presumed  to  have  been  served  with 
process  in  a  partition  proceeding,  where  the 
record  shows  only  the  existence  of  a  guard- 
ian ad  litem  and  an  acceptance  of  service 
by  her  for  them,  and  her  certificate  that  a 
copy  of  the  citation  was  served  on  them. 
Clark  V.  Neves,  12:  298,  57  S.  E.  614,  76 
S.  C.  484. 

679.  Personal  service  of  notice  cannot  be 
presumed  to  uphold  a  decree  distributing 
a  decedent's  estate,  where  it  recites  that 
from  'the  affidavits  on  file  the  court  finds 
that  due  notice  was  given,  where  the  only 
affidavits  on  file  show  attempted  service 
by  publication,  which  did  not  meet  the 
statutory  requirements.  Teynor  v.  Heible, 
46:  1033,  133  Pac.  1,  74  Wash.  222. 

080.  An  indorsement  stamped  by  means 
of  a  rubber  stamp  on  the  back  of  a  sum- 
mons and  complaint,  of  the  words,  "In 
Sheriff's  office,  Dec.  2,  1908,  John  J.  Lee, 
Sheriff,  Ward  County,"  will,  under  a  Code 
Digest  1-52  L.R.A.(N.S.) 


provision  which  makes  it  the  duty  of  the 
sheriff  to  indorse  "upon  all  notices  and  proc- 
esses received  by  him  for  service,  the  year, 
month,  day,  hour,  and  minute  of  recep- 
tion," and  under  another  Code  provision 
which  provides  that  "the  presumption  that 
official  duty  has  been  regularly  performed 
is  satisfactory  if  uncontradicted,"  be 
deemed  satisfactory  evidence  of  the  facts 
therein  contained,  and  that  the  summons 
and  complaint  were  delivered  to  the  slieriff 
for  service  upon  the  day  stated,  in  the 
absence  of  satisfactory  proof  to  the  con- 
trary. Galehouse  v.  Minneapolis,  St.  P.  & 
S.  Ste.  M.  R.  Co.  47:  965,  135  N.  W.  189, 
22  N.  D.  615. 
Mental  angnisli. 

681.  Mental  suffering  will  not  be  presumed 
to  exist  for  deprivation  of  opportunity  to  at- 
tend the  fvmeral  of  one's  first  cousin.  John- 
son V.  Western  U.  Teleg.  Co.  17:  1002,  62 
S.  E.  244,  81  S.  C.  235. 

682.  No  presumption  of  mental  suffering 
will  arise  in  case  of  failure  to  deliver  a 
telegram  announcing  the  death  of  a  rela- 
tive by  affinity  only,  such  as  a  son's  wife; 
and  therefore  to  recover  damage  for  such 
suffering  in  such  cases  facts  must  be  pleaded 
and  proved  showing  special  friendship  or 
affection,  although  it  is  not  necessary  to  show 
that  the  telegraph  company  had  notice  of 
such  facts.  Foreman  v.  Western  U.  Teleg. 
Co.  19:  374,  116  N.  W.  724,  141  Iowa,  32. 

(Annotated) 
Performance  of  dnty.  ,, 

Official  duty,  see  supra,  11.  i.  ■<''->i  . 

Presumption  that  foreign  insurance  com- 
pany has  complied  with  law,  see  In- 
surance, 15,  16. 

683.  In  the  absence  of  evidence  to  the  con- 
trary, one  whose  rents  are  insured  is  pre- 
sumed to  have  discharged  his  obligations 
under  the  contract,  in  case  of  loss,  to  take 
immediate  possession  of  the  premises  and 
rebuild.  l*alatine  Ins.  Co.  v.  O'Brien,  16: 
1055,  68  Atl.  484,  107  Md.  341. 
Intestacy  or  absence  of  issue;  disin- 
heritance. 

684.  There  is  no  presumption  of  the  death 
of  a  person  without  issue;  it  is  a  matter 
to  be  proved  by  sufficient  evidence.  Re 
Jackson,  4  B.  R.  C.  627,  [1907]  2  Ch.  354. 
Also  Reported  in   76  L.  J.  Ch.  N.   S.  553. 

{ Annotated ) 

685.  The  presumption  of  intestacy  and 
absence  of  issue  may  arise  from  a  finding  of 
death  of  one  who  disappeared  at  about 
twenty-one  years  of  age,  thirty-seven  years 
ago,  since  which  nothing  has  been  heard 
concerning  him  nor  anyone  claiming  to  be 
his  issue.  Barson  v.  Mulligan,  16:  151,  84 
N.  E.  75,  191  N.  Y.  306. 

686.  The  burden  of  showing  that  a  child 
was  intentionally  omitted  from  the  will  of 
his  parents  is  upon  those  claiming  the  omis- 
sion to  have  been  intentional,  under  a  stat- 
ute giving  to  such  child  the  same  share  of 
his  parent's  estate  which  he  would  have 
taken  if  the  parent  had  died  intestate,  "un- 
less it  appears  that  such  omission  was  in- 
tentional." Re  Motz,  51:  645,  145  N.  W. 
623,  125  Minn.  40. 


1124 


EVIDENCE,  II.  m. 


Election  to  take  under  vrill. 

687.  An  election  to  take  under  a  will  may 
be  inferred  or  implied  from  the  conduct  of 
the  party,  his  acta,  omissions,  modes  of  deal- 
ing with  the  property,  acceptance  of  rents 
and  profits,  and  the  like.  Owens  v.  An- 
drews, 49:  1072,  131  Pac.  1004,  17  N.  M. 
597.  (Annotated) 

688.  An  election  on  the  part  of  a  widow 
to  take  'under  a  will  will  not  be  implied 
from  her  conduct  merely,  where  she  had  not 
full  knowledge  of  her  rights  in  that  regard, 
even  though  she  possessed  full  knowledge 
concerning  the  property  and  intended  an 
election.  Owens  v.  Andrews,  49:  1072,  131 
Pac.  1004,  17  N.  M.  597. 

Criminal  cases. 

Burden  of  establishing  allegations  or  claims 

generally,  see  supra,  94,  95. 
Burden  of  establishing  defense,  see  supra, 

102-109.  , 

Presumption  of  chastity  of  prosecutrix,  see 

supra,  120. 
Presumption    as    to    character,    see    supra, 

121,  122. 
Presumption  as  to  validity  of  first  marriage 
':.      in   prosecution   for   bigamy,   see  supra, 
'.        140. 
Burden   of   proving   that   first   spouse   was 

alive    in    prosecution    for   bigamy,    see 

supra,  152. 
As  to  sanity  of  accused,  see  supra,  221-223. 
As  to  criminal  intent,  see  supra,  255-257. 
Presumption  of  innocence,  see  supra,  299- 

301. 
Presumption  of  guilt,  see  supra,  302-304. 
In  prosecution  for  forging  note,  see  supra, 

586. 
Error  in  instruction  as  to,  waived  or  cured 

below,  see  Appeal  and  Error,  848,  858. 
Sufiiciency  of  evidence  to  overcome  presump- 
gj,  tion  of  larceny  arising  from  possession 
t^.  of    stolen    property,    see    Appeal    and 

Error,  927. 
Presumption    arising    from    indictment    by 

grand    jury,    see    Bail   and    Recogni- 
zance, 14,  16. 
Validity   of   statute   as   to,   see   Constitu- 
tional Law,  621,  622. 
Instructions    as    to    presumption    of    good 

character,  see  Trial,  907. 
Instructions  as  to,  see  Trial,  943. 
See  also  infra,  2402;  supra,  501. 

689.  Upon  habeas  corpus  to  secure  the 
release  of  one,  the  judgment  convicting 
whom  recites  that,  after  duly  considering 
the  "evidence  as  produced  and  confessed," 
the  court  finds  the  defendant  guilty,  on  the 
ground  that  the  judgment  is  void  because 
it  was  rendered  without  any  testimony  be- 
ing taken  or  a  plea  of  guilty  entered,  it 
will  be  presumed,  in  the  absence  of  an  af- 
firmative showing,  that  evidence  was  in- 
troduced. Re  Jones,  31:  548,  109  Pac.  570, 
4  Okla.  Crim.  Rep.  74. 

690.  To  make  applicable  to  one  suffering 
from  a  shot  wound,  and  weakened  by  dis- 
ease so  that  he  was  too  weak  to  sign  his 
name,  and  who  is  alleged  to  have  made 
statements  in  answer  to  questions  pro- 
pounded to  him,  the  rule  as  to  presumptions 
arising  against  one  accused  of  crime  from 
I>iS;est  1-52  I..R.A.(N.S.) 


I  statements  made  against  himself,  he  must 
I  be  found  to  have  been  in  such  condition  of 
mind  and  body  as  to  have  been  able  to  know 
the  statement  he  was  making,  and  to  un- 
derstand the  questions  propounded  to  him. 
State  V.  Webb,  20:  1 142,  115  S.  W.  998,  216 
Mo.  378. 

691.  The  fact  of  employing  laborers  on 
public  work  for  more  than  a  certain  num- 
ber of  hours  a  day  cannot  be  made  prima 
facie  evidence  of  violation  of  the  statute 
prohibiting  it,  if  there  are  circumstances 
provided  for  by  statute  when  such  employ- 
ment is  made  lawful.  Opinion  of  the  Jus- 
tices, 34:  771,  94  N.  E.  1044,  208  Mass.  619. 
—  Intoxicating  character  of  liquor. 

692.  The  state  need  not  prove  the  intoxi- 
cating quality  of  liquor,  with  the  illegal 
sale  of  which  one  is  charged,  if  it  is  with- 
in a  class  expressly  defined  as  such  by  the 
legislature,  but  must  prove  such  quality  as 
to  all  beverages  which  do  not  fall  within 
the  classes  designated  by  the  statute  as 
intoxicating.  Ex  parte  Lockman,  46:  759, 
110  Pac.  253,  18  Idaho,  465. 

693.  Upon  trial  of  an  indictment  for  sell- 
ing intoxicating  drinks,  if  the  evidence 
shows  a  sale  of  beer,  the  state  has  made 
a  prima  facie  case  for  conviction,  and  need 
not  give  evidence  that  the  beer  is  intoxi- 
cating. State  V.  Durr,  46:764,  71  S.  E. 
767,  69  W.  Va.  251. 

694.  In  a  criminal  prosecution  for  the 
violation  of  a  statute  prohibiting  the  sale 
or  keeping  for  sale  of  "malt,  spirituous,  or 
vinous  liquors  or  any  intoxicating  drinks" 
without  a  license,  where  the  charge  is  for 
selling  or  keeping  for  the  purpose  of  sale 
"certain  malt  and  intoxicating  liquor,"  and 
the  proof  shows  that  malt  liquor  was  sold 
and  kept  for  sale,  the  state  is  not  required 
to  allege  or  prove  that  the  liquors  sold  or 
kept  for  the  purpose  of  sale  are  in  fact  in- 
toxicating, as  it  is  sufficient  to  allege  and 
prove  the  sale,  or  the  keeping  for  the  pur- 
pose of  sale,  of  any  prohibited  liquors,  in 
violation  of  the  terms  of  such  statute. 
Luther  v.  State,  20:  1146,  120  N.  W.  125,  83 
Neb.  455. 

695.  To  sustain  a  conviction  for  selling 
intoxicating  liquor,  the  state  must,  if  the 
beverage  is  not  what  is  known  as  a  spirit- 
uous or  vinous  liquor,  or  the  malt  liquor 
generally  known  as  common,  lager,  or  bock 
beer,  or  ale,  introduce  evidence  of  its  in- 
toxicating effect.  Gourley  v.  Com.  48:  315, 
131  S.  W.  34,  140  Ky.  221. 

—  Possession  of  recently  stolen  prop- 
erty. 

696.  Possession  of  stolen  property  short- 
ly after  the  theft  is  evidence  to  charge  the 
possessor  with  the  taking.  State  v.  Rec- 
ord, 25:  561,  65  S.  E.  1010,  151  N.  C. 
695. 

697.  Mere  possession  of  recently  stolen 
goods  is  not  evidence  of  guilt  of  a  burglary 
of  the  place  where  they  were  kept,  unless  it 
is  shown  that  the  burglary  and  stealing  of 
the  goods  were  part  of  the  same  transaction. 
State  V.  Brady,  12:  199,  97  N.  W.  62,  121 
Iowa,  561.  (Annotated) 

698.  To  relieve  himself  of  the  charge  of 


EVIDENCE,  III. 


1125 


burglary,  one  found  in  possession  of  the 
property  thereby  acquired  need  not  prove 
that  he  acquired  it  honestly  or  fairly.  State 
V.  Brady,  12:  199,  97  N.  W.  62,  121  Iowa, 
561. 

III.  Best  and  secondary  evidence. 

(See  also   same  heading  in  Digest  L.R.A. 
1-70.) 

Admissibility  of  photograph,  see  infra,  887- 
891. 

699.  Evidence  of  one  whose  parents  are 
accessible,  as  to  their  nationality,  is  not 
inadmissible  on  the  theory  that  it  is  not 
the  best  evidence  of  the  fact.  State  v. 
Rackich,  37:  760,  119  Pac.  843,  66  Wash. 
390. 

700.  Persons  familiar  with  the  facts  are 
competent  to  testify  that  at  the  time  of  an 
accident  on  a  railroad  the  road  was  being 
operated  by  a  lessee.  Chicapjo,  B.  &  Q.  R. 
Co.  V.  Weber,  4:  272,  76  N.  E.  -489,  219  111. 
372. 

701.  Relation  of  a  witness  to  the  subject- 
matter  of  his  testimony,  such  as  his  incum- 
bency of  an  ofBce  in  a  private  corporation 
on  whose  behalf,  as  a  party  to  the  suit,  he 
is  to  testify,  may  be  shown  by  his  oral  evi- 
dence. Star  Grocer  Co.  v.  Bradford,  39:  184, 
74  S.  E.  509,  70  W.  Va.  496. 

702.  A  physician's  certificate  of  cause  of 
death  is  not  admissible  in  evidence  to  prove 
that  fact  in  an  action  to  recover  damages 
for  the  negligence  which  is  alleged  to  have 
produced  it,  where  the  physician  is  still  liv- 
ing. Louisville  R.  Co.  v.  Tavlor,  27:  176, 
123  S.  W.  281,  135  Ky.  738. 

703.  Parol  evidence  is  admissible  to  show 
formal  action  bjr  the  directors  of  a  corpo- 
ration upon  a  proposition  which  came  before 
them.  Iowa  Drug  Co.  v.  Souers,  19:  115, 
117  N.  W.  300,  139  Iowa,  72. 

704.  A  municipal  ordinance  may  be  proved 
as  to  its  contents  as  well  as  to  its  passage 
by  the  introduction  in  evidence  of  the  orig- 
inal record  thereof,  properly  identified  a3 
such.  Grafton  v.  St.  Paul,  M.  &  M.  R.  Co. 
22:  I,  113  N.  W.  598,  16  N.  D.  313. 

705.  The  duly  certified  original  charter 
of  a  corporation  is  not  inadmissible  in  evi- 
dence because  a  statute  permits  the  receiv- 
ing of  a  certified  copy  of  the  charter.  Sum- 
ter Tobacco  Warehouse  Co.  v.  Phoenix  Ins. 
Co.  10:  736,  56  S.  E.  654,  76  S.  C.  76. 

Of  making  of  contract. 

706.  Parol  evidence  is  admissible  to  show 
the  making  of  a  contract  which  has  been 
lost  or  destroyed.  Mahaffy  v.  Paris,  24:  840, 
122  N.  W.  934,  144  Iowa,  220. 

Of  contents  of  book. 

707.  The  material  contents  of  an  existing 
book  which  is  obtainable  cannot  be  proven 
by  parol  testimony,  as  the  book  itself  is 
the  best  evidence.  Sayre  v.  Woodyard,  28: 
388,  66  S.  E.  320,  66  W.  Va.  288. 

Of  record. 

Transcript  of  record,  see  infra,  724. 

See  also  supra,  731. 

708.  A  mere  provision,  in  a  city  charter 
Digest  1-52  L.R.A.(N.S.) 


creating  a  park  commission,  that  the  secre- 
tary shall  keep  a  record  of  its  proceedings, 
does  not  exclude  parol  evidence  of  certain 
acts  in  case  the  record  is  silent  upon  the 
matter.  Denver  v.  Spencer,  2:  147,  82  Pac. 
590,  34  Colo.  270. 

709.  The  presumption  that  a  grant,  by  a 
private  owner,  of  land  which  he  bounds  gen- 
erally upon  a  river,  will  carry  title  as  far 
as  he  owns,  is  rebuttable,  the  question  be- 
ing purely  one  of  intention;  and  when  the 
intention  is  ascertainable  from  the  record 
of  a  proceeding  or  the  face  of  an  instru- 
ment, other  evidence  is  inadmissible.  Fow- 
ler V.  Wood,  6:  162,  85  Pac.  763,  73  Kan.  511. 

710.  The  recognition  of  a  highway  as  such 
by  the  county  court  or  by  a  municipality 
may  be  shown  either  by  the  records  of  the 
county  court  or  municipality,  or  by  proof  of 
work  done  thereon  by  one  who  is  shown  to 
be  the  offiOer  whose  duty  it  is  to  take  care 
of,  work,  and  repair,  the  road  in  the  precinct 
in  which  it  is,  or  the  street  or  alley  of  the 
town  or  city.  Campbell  v.  Elkins,  2:  159, 
52  S.  E.  220,  58  W.  Va.  308.  .  .  .  ' 
Of  transaction  in  court.  ''''  !'  ^^ '•  f"'^- 
See  also  infra,  724.                   ''  '    *        '       ■ 

711.  Testimony  as  to  evidence  given  in 
an  examination  before  court  cannot  be  ex- 
cluded on  the  theory  that  it  is  not  the  best 
evidence  of  what  was  so  given,  although  the 
evidence  was  taken  down  in  shorthand. 
Mollison  V.  Rittgers,  29:  1179,  118  N.  W. 
512,  140  Iowa,  365. 

Matters  in  \rriting  generally. 
See  also  supra,  711. 

712.  The  general  agent  of  an  insurance 
company  cannot,  in  a  suit  upon  the  policy, 
state  whether  or  not  the  report  of  an  agent 
who  issued  the  policy  contained  anything 
as  to  the  idleness  of  the  plant  on  which  it 
was  issued,  since  the  report  is  the  best  evi- 
dence. Home  Ins.  Co.  v.  North  Little  Rock 
Ice  &  E.  Co.  23:  1201,  111  S.  W.  994,  86  Ark, 
538. 

713.  A  married  woman  having,  by  direc- 
tion of  her  husband  written  a  letter  to  an- 
other is  competent  to  prove  the  contents  of 
such  letter  in  a  judicial  investigation  in 
which  her  husband  is  a  party  after  satis- 
factory excuse  being  given  for  not  produc- 
ing the  writing.  Boardman  v.  Lorentzen, 
52:  476,  145  N.  W.  750,  155  Wis.  566. 

714.  Parol  evidence  of  conveyances  of  real 
estate  by  one  accused  of  incest  is  admissi- 
ble in  connection  with  evidence  that  ac- 
cused left  the  state,  where  the  deeds  were 
traced  to  his  possession  and  he  was  noti- 
fied to  produce  them,  which  he  failed  to 
do.  Skidmore  v.  State,  26:  466,  123  S.  W. 
1129,  57  Tex.  Crim.  Rep.  497. 

Copies. 

Photographic  copy,  see  infra,  890. 

715.  The  best  evidence  to  prove  the 
amount  of  dividend  allowed  in  the  account 
of  an  administrator  upon  a  note  of  de- 
cedent is  a  copy  of  the  account,  and  not  his 
testimony.  Harper  v.  Davis,  35:  1026,  80 
Atl.  1012,  115  Md.  349. 

716.  The  introduction  on  a  trial  for  steal- 
ing cattle,  of  several  diagrams  of  brands, 
which  were  copies  of  others,  is  not  erroneous 


1126 


EVIDENCE,  III. 


where  the  diagrams  offered  are  shown  by 
specific  testimony  to  be  correct.  State  v. 
Wolfley,  11:87,  89  Pac.  1046,  75  Kan.  406. 

717.  Record  copies  of  reports  by  train 
men  as  to  the  time  of  passing  of  trains  are 
not  admissible  in  evidence  upon  the  ques- 
tion of  liability  for  setting  out  fire,  where 
the  reports  are  in  existence,  and  not  pro- 
duced, and  there  is  nothing  to  show  that 
the  testimony  of  those  operating  the  trains 
could  not  have  been  produced.  Cathey  v. 
Missouri,  K.  &  T.  R.  Co.  33:  103,  133  S.  W. 
417,  104  Tex.  39. 

718.  The  fact  that  in  making  reports  to  a 
city  council  the  city  treasurer  copied  the 
data  therein  contained  from  the  books  kept 
by  him  as  city  treasurer  does  not  render 
the  reports  inadmissible  as  secondary  evi- 
dence, since,  being  made  pursuant  to  official 

.duties,  they  are  original,  and  not  mere 
copies.  Dickinson  v.  White,  49:  362,  143  N. 
W.  754,  25  N.  D.  523. 

.—  Letter  press  copies. 

719.  The  loss  of  waybills  indicating  the 
destination  of  certain  cars  having  been 
shown,  it  is  error  to  exclude  letter  press 
copies  of  such  waybills.  Barker  v.  Kan- 
sas City,  M.  &  0.  R.  Co.  43:  1121,  129  Pac. 
1151,  88  Kan.  767. 

—  Carbon  copies. 

720.  The  different  numbers  or  impressions 
of  a  writing  produced  by  placing  carbon 
paper  between  sheets  of  paper  and  writing 
upon  the  exposed  surface  are  duplicate  orig- 
inals, and  either  may  be  introduced  in 
evidence  without  accounting  for  the  non- 
production  of  the  other.  International  Har- 
vester Co.  v.  Elfstrom,  12:  343,  112  N.  W. 
252,  101  Minn.  263.  (Annotated) 

—  Certified  copies. 
See  also  infra,  703,  729. 

721.  A  copy  of  a  lease  of  a  railroad,  duly 
certified,  is  admissible  in  evidence  under  a 
statute  providing  that  the  papers  of  the 
corporation  may  be  proved  by  a  copy  there- 
of certified  by  the  proper  custodian.  Chi- 
cago, B.  &  Q.  R.  Co.  V.  Weber,  4:  272,  76  N. 
E.  489,  219  111.  372. 

722.  A  certified  copy  of  docket  entries  in 
a  judicial  proceeding  in  another  state,  from 
which  to  make  a  record,  is  not  admissible  as 
evidence  of  the  facts  which  it  is  claimed 
the  record  would  establish.  Uibson  v. 
Holmes,  4:  451,  62  Atl.  11,  78  Vt.  110. 

.«-  Transcript  of  record. 
•.  723.  A  purported  transcript  from  the 
record  of  a  lower  court  in  another  state, 
certified  by  a  person  signing  himself  clerk 
of  the  court,  but  without  seal,  and  not 
certified,  as  required  by  acts  of  Congress, 
is  not  admissible  in  evidence.  Mason  v. 
Nashville,  C.  &  St.  L.  R.  Co.  33:  280,  70 
S.  E.  225,  135  Ga.  741. 

724.  A  purported  transcript  of  the  rec- 
ord of  the  lower  court  of  another  state,  not 
certified  as  required  by  statute,  is  not  ren- 
dered admissible  in  evidence  by  testimony 
of  the  one  who  presided  in  such  court,  that 
he  had  fined  defendant  in  that  proceeeding, 
and  did  not  recollect  the  amount  of  the  fine, 
but  that  the  amount  will  be  shown  by  the 
attached  paper,  certified  by  the  clerk.  Ma- 
Digest  1-52  L.R.A.(N.S.) 


son  V.  Nashville,  C.  &  St.  L.  R.  Co.  33:  280, 
70  S.  E.  225,  135  Ga.  741. 
Accounts  and  account  books. 

Admissibility  of  generally,  see  infra,  IV.  j. 

725.  Books  of  account  may  be  admitted 
in  evidence  to  prove  cash  loans  whore  the 
items  appear  in  the  genera!  course  of  ac- 
counts as  part  of  the  business  transactions 
between  the  parties.  Lewis  v.  England, 
2:  401,  82  Pac.  869,  14  Wyo.  128. 

(Annotated) 

726.  A  merchant  who  has  adopted  a  hvs- 
tem  of  keeping  his  accounts  by  entering 
the  daily  transactions  on  sheets  of  paper 
called  "day  slips,"  and  subsequently  trans- 
ferring them  to  other  slips  called  "ledger 
slips,"  which  show  the  accounts  with  each 
customer  separately,  and  upon  which  items 
are  sometimes  originally  entered,  may,  in 
proving  an  account,  introduce  the  latter  in 
evidence  to  explain  items  on  the  day  slips, 
and  to  show  entries  which  were  originally 
made  on  them.  Lewis  v.  England,  2:  401, 
82  Pac.  869,  14  Wyo.  128. 

727.  To  show  that  a  suicide  committed 
the  act  to  escape  punishment,  persons  who 
have  examined  his  books  cannot  testify  as 
to  what  they  show  regarding  certain  al- 
leged embezzlements  without  the  production 
of  the  books  themselves.  Davis  v.  Supreme 
Council  R.  A.  10:  722,  81  N.  E.  294,  195 
Mass.  402. 

Preliminary  proof. 

728.  To  admit  secondary  evidence  of  the 
specifications  of  a  chattel  sold  and  delivered, 
the  one  making  the  offer  must  show  that  he 
cannot  produce  the  original.  Estey  Urgan 
Co.  V.  Lehman,  ii:  254,  111  N.  W.  1097,  132 
Wis.  144. 

729.  Certified  copies  of  deeds  are  not  ad- 
missible in  evidence  until  the  party  offering 
them  makes  it  appear  that;  the  originals  are 
not  within  his  custody  or  control.  Florida 
Finance  Co.  v.  Sheffield,  23:  1102,  48  So.  42, 
56  Fla.  285. 

730.  The  sanity  of  a  testator  whose  tes- 
tamentary capacity  is  in  issue  cannot  be 
proven  by  oral  evidence  that  he  had  writ- 
ten letters  to  one  of  his  daughters,  without 
first  producing  or  accounting  for  the  letters. 
Slaughter  v.  Heath,  27:  i,  57  S.  E.  69,  127 
Ga.  747. 

731.  Secondary  evidence  to  identify  a  rec- 
ord of  conviction  is  not  admissible  until  the 
absence  of  the  magistrate  who  rendered  the 
judgment,  or  his  successor  in  office,  who  is 
the  proper  custodian  of  the  record  and  the 
proper  person  to  identify  it,  is  accounted 
for.  Junior  v.  State,  2:  652,  89  S.  W.  467, 
76  Ark.  483.  (Annotated) 

732.  Proper  foundation  for  the  admission 
of  copies  of  telegraphic  orders  to  a  broker 
purporting  to  have  been  signed  by  his  prin- 
cipal is  laid  where  it  is  shown  that  the 
originals  have  been  destroyed,  that  the 
sender  has  failed  to  comply  with  timely 
notice  to  produce  all  writings  received  by 
him  from  the  broker  with  reference  to  the 
transactions,  and  where  it  is  also  shown 
that  the  orders  were  delivered  by  a  tele- 
graph company  on  the  floor  of  an  exchange 
and  there  executed  and  the  fact  reported  to 


EVIDENCE,  IV.  a. 


1127 


the  buyer,  who  acquiesced  in  what  was 
done,  and  that  the  broker  had  executed 
several  similar  orders  for  the  sender, — es- 
pecially where  the  claim  of  the  sender  is  not 
that  the  contracts  mentioned  therein  were 
not  entered  into,  but  that  they  were  wager- 
ing transactions.  Hallet  v.  Aggergaard, 
14:  1251,  114  N.  W.  696,  21  S.  D.  554. 
Notice  to  produce. 

733.  If  the  pleadings  clearly  disclose  that 
proof  of  a  document  in  possession  of  the 
adversary  will  be  necessary  at  the  trial, 
notice  to  produce  it  is  not  necessary  to  al- 
low secondary  evidence  of  its  contents.  J. 
L.  Owens  Co.  v.  Bemis,  37:  232,  133  N.  W, 
69,  22  N.  D.  159. 

IV.  Documentary  evidence. 

a.  In    general;    preliminary     matters, 
genuineness  and  validity. 

(Sec  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Laying  foundation  for  secondary  evidence, 
see  supra,  732,  733, 

Foundation  for  admissibility  of  X-ray  pho- 
tograph, see  infra,  892. 

Appeal  from  order  to  produce  books  and 
papers  for  inspection  before  trial,  see 
Appeax  and  Error,  23. 

As  part  of  record  on  appeal,  see  Appeal 
AND  Error,  193,  194. 

Review  of  discretion  as  to  admission  of 
documentary  evidence,  see  Appeal  and 
Error,  601. 

Prejudicial  error  as  to,  see  Appeal  and 
Error,  1135,  1150,  1273. 

Sufficiency  of  extrinsic  evidence  of  execution 
to  lay  foundation  for  admission  of  note 
in  evidence,  see  Trial,  159. 

Sufficiency  of  objection  to  admission  of,  see 
Trial,  82. 

To  refresh  witnesses'  recollection,  see  Wit- 
nesses, 72,  73. 

734.  One  party  cannot  make  a  paper 
otherwise  incompetent  as  evidence  compe- 
tent in  his  favor  against  his  adversary,  by 
calling  for  it  and  inspecting  it  on  its  being 
produced  on  his  call.  Boyle  v.  Boston  Ele- 
vated R.  Co.  33:  552,  94  N.  E.  247,  208  Mass. 
41.  (Annotated) 

735.  A  statement  made  from  the  books  of 
an  assignor  for  creditors  is  not  admissible 
in  an  action  by  the  assignee  to  enforce  a 
debt  due  the  assignor  in  the  absence  of 
any  foundation  for  admission  of  the  books 
themselves.  Richardson  v.  Anderson,  25: 
393,   72   Atl.   485,  100  Md.   641. 

736.  To  render  admissible  in  evidence  an 
order  committing  one  to  an  asylum  in  an 
action  to  recover  for  his  care  while  there, 
it  is  not  necessary  to  prove  the  steps  lead- 
ing up  to  the  commitment,  where,  from  the 
recitals  in  the  commitment,  it  appears  that 
the  court  had  jurisdiction  of  the  alleged  in- 
sane person.  Napa  State  Hospital  v.  Das- 
so,  18:  643,  96  Pac.  355,  153  Cal.  698. 
Ezecnti«n, 

737.  A  note,  the  execution  of  which  is  de- 
Digest   1-52  KR.A.(N.S.) 


nied  by  a  plea  of  non  est  factum,  will  not 
be  received  in  evidence  until  some  extrinsic 
evidence  of  its  execution  has  been  sub- 
mitted; but  slight  evidence  is  sufficient  to 
lay  the  foundation  for  its  admission.  Pat- 
ton  v.  Bank  of  La  Fayette,  5:  592,  53  S.  E. 
664,  124  Ga.  965. 
Authentication. 

Verification  of  plat  offered  in  evidence,  see 
infra,  857. 

738.  A  letter  bearing  a  typewritten  signa- 
ture is  admissible  in  evidence  as  proof  of  the 
receipt  of  a  remittance  acknowledged  there- 
in, without  authentication  of  the  signature, 
where  it  was  sent  in  response  to  a  letter 
containing  notification  of  the  remittance. 
Lancaster  v.  Ames,  17:  229,  68  Atl.  533,  103 
Me.   87.  (Annotated) 

739.  That  a  letter  was  written  in  response 
to  another  sufficiently  appears  from  evidence 
that  it  was  dated  the  day  after  the  latter, 
and  referred  to  checks  transmitted  in  it  and 
to  receipts  to  be  sent  to  persons  from  whom 
the  money,  represented  by  them,  was  alleged 
to  have  been  received.  Lancaster  v.  Ames, 
17:  229,  68  Atl.  533,  103  Me.  87. 
Identification. 

See  also  Appeal  and  Erboe,  233. 

740.  A  paper  purporting  to  be  a  request 
to  a  railroad  company  for  cars  does  not 
prove  itself,  and  is  not  admissible  in  evi- 
dence without  identification  or  proof  that 
it  is  what  it  purports  to  be.  Di  Giorgio 
Importing  &  S.  S.  Co.  v.  Pennsylvania  R. 
Co.  8:  108,  65  Atl.  425,  104  Md.  693. 
Genuineness  of  handnrriting;  stand- 
ards. 

Review  of  discretion  in  refusing  to  admit 
documents  as  standards  for  comparison 
of  handwriting,  see  Appeal  and  Error, 
608. 

741.  Upon  the  question  of  the  genuine- 
ness of  a  letter  seventy  years  old,  the  public 
records  kept  by  the  alleged  writer  as  the  in- 
cumbent of  the  office  to  which  they  belonged 
are  admissible  in  evidence.  McCreary  v. 
Coggeshall,  7:  433,  53  S.  E.  978,  74  S.  C.  42. 

742.  Under  a  rule  that  a  standard  for 
comparison  of  handwriting  must  be  estab- 
lished by  direct  proof  or  equivalent  evi- 
dence, a  signature  may  be  established  for 
such  purpose  by  showing  that  it  was  at- 
tached to  a  slip  handed  in  by  the  one  whose 
name  it  is,  and  whose  signature  it  is  alleged 
to  be,  and  whose  duty  it  is  to  fill  out  and 
sign  such  slips,  in  the  absence  of  evidence  to 
the  contrary.  Com.  v.  Tucker,  7:  1056,  76  N. 
E.  127,  189  Mass.  457. 

Ancient  instruments. 
See  also  supra,  741. 

743.  A  deed  more  than  thirty  years  old  is 
an  ancient  document,  proving  itself.  Ford 
V.  Ford,  6:  442,  27  App.  D.  C.  401. 

744.  A  deed  more  than  thirty  years  old, 
purporting  to  have  been  signed  by  the  execu- 
trix nominated  in  a  will,  and  containing 
a  recital  that  it  was  executed  under  the 
power  of  sale  conferred  by  the  will,  proves 
itself  where  the  possession  of  the  land  has 
been  consistent  with  its  terms,  although, 
the  original  records  having  been  lost,  there 
is  nothing  to  show  that  the  testatrix  ever 


1128 


EVIDENCE,  IV.  b— d. 


qualified  as  such.  Wilson  v.  Snow,  50:  604, 
33  Sup.  Ct.  Rep.  487,  228  U.  S.  217,  57  L. 
ed.  807. 

745.  A  letter  seventy  years  old,  found  in 
proper  custody,  is  an  ancient  document 
which  proves  itself.  McCreary  v.  Cogges- 
hall,  7:  433,  53  S.  E.  978,  74  S.  C.  42. 

746.  A  document  purporting  to  bear  date 
thirty  years  or  more  before  it  is  offered 
in  evidence,  which  is  produced  from  proper 
or  natural  custody,  is  free  from  suspicious 
circumstances,  and  is  relevant  to  the  in- 
quiry, is  admissible  in  evidence,  without 
the  ordinary  requirements  as  to  proof  of 
execution  or  handwriting,  although  the  pre- 
sumption of  authenticity  is  subject  to  re- 
buttal. Nicholson  v.  Eureka  Lumber  Co. 
36:  i6a,  72  S.  E.  86,  156  N.  C.  59. 

h.  Statutes;    ordinances. 

(Bee  also  same  heading  in  Digest  L.R.A. 
1-70J 

Statutes. 

Statute  of  limitations  of  state  ^here  con- 
tract entered  into,  see  Confuct  of 
Laws,  139. 

Ordinances. 

See  also  supra,  704;  infra,  1768,  1770. 

747.  An  ordinance,  required  by  statute  to 
be  published  before  taking  effect,  it  being  al- 
so provided  that  a  note  of  the  date  of  its 
publication  be  appended  to  its  entry  in  the 
ordinance  book,  and  no  other  provision  be- 
ing made  for  preserving  evidence  of  the  fact 
of  publication,  is  not  admissible  in  evidence, 
if  no  such  notation  is  found  in  the  proper 
place,  without  other  proof  that  it  has  been 
published.  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Baker,  21:  427,  98  Pac.  804,  79  Kan.  183. 

748.  In  an  action  by  a  municipality  to 
condemn  property  for  street  purposes,  an 
ordinance  declaring  it  necessary  to  extend 
one  of  its  streets  across  a  railway  is  admis- 
sible in  evidence  for  the  purpose  of  proving 
the  official  determination  by  the  city  coun- 
cil of  the  necessity  for  the  crossing.  Graf- 
ton V.  St.  Paul,  M.  &  M.  R.  Co.  22:  i,  113 
N.  W.  598,  16  N,  D.  313. 

749.  The  ordinances  of  a  town  defining 
disorderly  conduct  and  prescribing  the  du- 
ties of  the  marshal  are  admissible  on  a 
trial  for  assault  with  intent  to  murder  the 
marshal  while  attempting  to  make  an  ar- 
rest, for  the  purpose  of  showing  the  mar- 
shal's authority  to  make  arrests  for  mis- 
conduct such  as  that  which  he  was  informed 
the  defendant  was  guilty  of.  Porter  v. 
State,  2:  730,  52  S.  E.  283,  124  Ga.  297. 

o.  Certificate;  award. 

(See  also  same  heading  in  Digest  L.R.A. 

1-10.) 

Injrmction  against  use  as  evidence  of  fraud- 
ulent certificate  of  birth,  see  Injunc- 
tion, 174. 

See  also  supra,  702. 

Digest  1-52  KR.A.(N.S.) 


750.  An  architect's  certificate  provided 
for  by  a  building  contract  is  admissible  in 
evidence  in  an  action  for  breach  of  the  con- 
tract. Shriner  v.  Craft,  28:  450,  51  So.  884, 
166  Ala.  146. 

d.  Official    records,     reports,    and    re- 
turns. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

As  best  or  secondary  evidence,  see  supra, 
704.  4, 

Best  and  secondary  evidence  of,  see  supra, 
708-710. 

Report  as  best,  see  supra,  718. 

Judicial  records,  see  infra,  IV.  e. 

Weight  of,  as  evidence,  see  infra,  2263-2269. 

Legislative  journals,  see  Statutes,  85,  88. 

See  also  supra,  741;   infra,  753. 

751.  The  report  of  the  drainage  commis- 
sioners is  admissible  in  evidence  in  a  pro- 
ceeding to  condemn  and  remove  a  dam  for 
drainage  purposes,  where  the  statute  makes 
such  reports  prima  facie  evidence  of  the 
facts  therein  set  forth.  Zehner  v.  Milner, 
24:  383,  87  N.  E.  209,  172  Ind.  493. 

752.  Records  of  a  municipal  council  dis- 
closing the  report  of  the  board  of  public 
works  concerning  the  laying  out  of  a  sewer 
and  its  action  thereon  are  admissible  in  ev- 
idence upon  the  question  of  the  right  to 
maintain  the  sewer  across  private  property 
pursuant  to  an  agreement  with  the  land- 
owner. Alderman  v.  New  Haven,  18:  74,  70 
Atl.  626,  81  Conn.  137. 

753.  That  a  rule  of  a  state  board  of 
health,  which  a  physician  was  charged  with 
having  knowingly  violated,  was  not  shown 
to  have  been  on  file  or  of  record  in  the  office 
of  the  secretary  of  the  board,  will  not  pre- 
vent its  admission  in  evidence  when  accom- 
panied by  the  secretary's  certificate  that  it 
was  duly  enacted  and  published,  under  a 
statute  providing  for  the  pimishment  of  one 
knowingly  violating  a  rule  of  the  board  of 
health  after  notice  thereof  has  been  given. 
Pierce  v.  Doolittle,  6:  143,  106  N.  W.  751, 
130  Iowa,  333. 

Iiand  titles. 

754.  The  record  of  a  deed  is  not  admissi- 
ble to  prove  its  existence,  on  behalf  of  the 
grantee  claiming  under  it.  McClerry  v. 
Lewis,  19:  438,  70  Atl.  540,  104  Me.  33. 

( Annotated ) 

755.  The  record  of  a  deed  is  not  inad- 
missible in  evidence  because  the  letters  U. 
Q.,  following  the  name  of  the  one  taking  the 
probate,  did  not  indicate  any  officer  au- 
thorized to  take  a  probate,  where  it  appears 
that  the  person  designated  was  clerk  of  the 
court,  of  which  fact  the  court  could  take 
judicial  notice,  and  ex  officio  one  of  the 
quorum  who  by  statute  had  authority  to 
take  probates,  so  that  the  letters  doubtless 
signified  unum  quorum.  McCreary  v.  Cog- 
geshall,  7:  433,  53  S.  E.  978,  74  S.  G.  42.  ,, 
—  From  other  states. 

756.  Copies  of  the  record  of  deeds  and 
other  similar  private  writings,  made  in  a 


EVIDENCE,  IV.  e. 


1129 


Bister  state,  are  admissible  in  evidence  in 
the  courts  of  Minnesota,  under  the  pro- 
visions of  U.  S.  Rev.  Stat.  §  906  (U.  S. 
Comp.  Stat.  1901,  p.  677),  when  properly 
certified  and  authenticated  as  required  by 
such  act.  Wilcox  v.  Bergman,  5:  938,  104 
N.   W.   955,  96   Minn.   219.  (Annotated) 

Taxes. 

757.  A  return  of  personal  property  for 
taxation,  compiled  by  the  assessor,  is  not 
admissible  in  evidence  on  the  question  of 
value  in  an  action  upon  a  policy  insuring  it 
against  loss  by  fire.  Kelley  use  of  Chis- 
holm  V.  People's  Nat.  F.  Ins.  Co.  50:  1164, 
104  N.  E.  188,  262  111.  158. 

758.  Where  the  financial  condition  of  the 
resident  of  any  county  in  this  state  is  ma- 
terial to  be  considered  on  exemplification 
of  the  tax  digest,  properly  certified  by  the 
clerk  of  the  court  of  ordinary,  is  admissible 
in  evidence.  Churchill  v.  Jackson,  49:  875, 
64  S.  E.  691,  132  Ga.  666. 

'Weather  bureau. 

Opinion  evidence  by  employee  of,  see  infra, 

1183,  1195. 
Coroner's  inquest. 

759.  Although  an  insurance  certificate 
provides  that  the  coroner's  verdict,  if  any 
inquest  is  held,  shall  be  furnished  as  a  part 
of  the  proof  of  death,  if  that  is  not  done, 
the  verdict  cannot  be  offered  in  evidence 
to  defeat  action  on  the  certificate.  Krogh 
v.  Modern  Brotherhood  of  America,  45:  404, 
141  N.  W.  276,  153  Wis.  397.       (Annotated) 

760.  In  an  action  to  hold  one  liable  in 
damages  for  killing  another,  a  statement  in 
the  coroner's  verdict  to  the  effect  that  he 
was  justified  in  his  act  is  properly  admis- 
sible in  evidence,  where  the  coroner  is  by 
statute  required  to  make  up  a  verdict  show- 
ing how  decedent  came  to  his  death,  and 
cause  the  arrest  of  anyone  implicated  as 
his  unlawful  slayer.  Foster  v.  Shepherd, 
45:  167,  101  N.  E.  411,  258  111.  164. 
Census  returns. 

761.  Certificate  copies  of  census  returns  of 
the  Federal  government  are  admissible  in 
evidence  upon  the  question  of  the  age  of 
a  citizen  deceased  since  the  return  was 
made.  Priddy  v.  Boice,  9:  718,  99  S.  W. 
1055,  201  Mo.  309.  (Annotated) 

e.  Judgments  and  judicial  records. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Weight  of,  see  infra,  2266-2269. 
Prejudicial  error  as  to,  see  Appeal  and  Er- 
ror, 1126. 

762.  A  decree  for  divorce  is  not  admissible 
as  evidence  of'  the  grounds  upon  which  it 
was  granted  in  a  suit  by  the  divorcee 
against  a  stranger,  to  secure  the  custody 
of  her  child.  Wilson  v.  Mitchell,  30:  507, 
111  Pac.  21,  48  Colo.  454. 

763.  Upon  the  question  of  libel  in  charg- 
ging  a  judge  with  participating  in  a  fee 
allowed  by  him  in  a  certain  proceeding,  the 
opinion  of  another  court  in  rendering  a 
judgment  in  another  suit  brought  to  en- 
Digest  1-52  I1R.A.(N.S.) 


join  payment  of  such  fee  is  not  admissible 
in  evidence.  State  v.  Butler,  25:  169,  65 
S.  E.  993,  151  N.  C.  672. 

764.  The  record  of  an  action  by  an  abut- 
ting property  owner  against  a  street  con- 
tractor for  destruction  of  his  building  by 
a  fire  started  in  the  street  is  not  admissible 
in  evidence  in  an  action  by  the  property 
owner  to  hold  the  municipal  corporation  re- 
sponsible for  the  loss.  Charles  Eneu  John- 
son Co.  v.  Philadelphia,  42:  512,  84  Atl. 
1014,  236  Pa.  510. 

765.  The  rcc  rd  and  judgment  in  a  pro- 
ceeding to  try  the  right  of  property  levied 
upon  under  an  execution  by  an  officer,  which 
find  the  property  not  to  be  the  property 
of  the  debtor,  are  not  admissible  in  an  ac- 
tion brought  by  the  successful  claimant 
against  the  officer  to  recover  damages  for 
the  seizure  and  detention  of  the  property. 
Smith  V.  White,  14:  530,  60  S.  E.  404,  63 
W.  Va.  472.  (Annotated) 

766.  In  support  of  exceptions  to  the  re- 
port of  a  trustee  in  bankruptcy,  records  in 
the  proceeding  are  admissible  in  evidence  to 
show  that  the  trustee  petitioned  the  court 
to  interfere  with  th^  sale  of  certain  proper- 
ty alleged  to  belong  to  the  bankrupt's  es- 
tate, and,  after  receiving  a  bond  for  the 
property,  and  being  directed  to  try  out  the 
title,  he  did  nothing,  and  allowed  the  bond 
to  be  canceled.  Re  Reinboth,  16:  341,  157 
Fed.  672,  85  C.  C.  A.  340. 

767.  The  exemplification  of  the  record  of 
a  habeas  corpus  proceeding  brought  by  the 
paternal  grandfather  of  a  child  of  tender 
years  whose  parents  were  dead  and  who  was 
removed  into  another  county  by  the  mater- 
nal grandfather,  to  obtain  the  custody  of 
such  child,  is  admissible  in  evidence  in  a 
contest  over  the  guardianship  of  the  child,  to 
be  considered  by  the  jury  solely  in  passing 
upon  the  question  of  the  domicil  of  the 
child.  Churchill  v.  Jackson,  49:  875,  64 
S.  E.  691,   132  Ga.  666. 

768.  That  certain  papers  filed  in  the  case 
are  not  contained  in  a  certified  copy  of  a 
judgment  record  does  not  prevent  its  ad- 
mission in  evidence  if  the  certificate  states 
that  the  writings  annexed  together  con- 
stitute the  record,  since  the  missing  papers 
may  not  have  been  a  proper  part  of  the 
record.  Wells  v.  Wells,  35:  561,  95  N.  E. 
845,  209  Mass.  282. 

769.  Upon  the  question  of  malicious  pros- 
ecution in  causing  the  arrest  for  grand 
larceny  of  one  wlio  took  and  retained  pos- 
session of  certain  property  against  the 
claim  of  the  one  who  instituted  the  proceed- 
ing, evidence  is  admissible  that  title  and 
right  of  possession  had,  in  a  civil  proceed- 
ing between  the  parties,  been  adjudged  to 
be  in  the  latter.  Smith  v.  Clark,  26:  953, 
106  Pac.  653,  37  Utah,  116. 

Of  other  state  or  country. 

770.  In  a  replevin  suit  to  gain  possession 
of  mortgaged  property  attached  in  a  suit 
against  the  mortgagor  in  one  state,  a  rec 
ord  of  a  judgment  of  a  court  in  another 
state  where  the  property  was  located  when 
mortgaged  and  from  which  it  had  been  tem- 
porarily   removed,    strictly    foreclosing    the 


1130 


EVIDENCE,  IV.  f,  g. 


mortgage  in  a  proceeding  instituted  before 

the   attachment   was    levied,    is   admissible. 

North    Carolina    Land    &    Lumber    Co.    v. 

Boyer,  39:  627,  191   Fed.  552,  112  C.  C.  A. 

162. 

Of  Federal  court. 

771.  The  decision  of  a  Federal  court  sit- 
ting in  a  state  on  a  matter  of  general  law 
is  not  evidence  of  what  the  law  of  that 
state  is.  Old  Dominion  Copper  Min.  & 
Smelting  Co.  v,  Bigelow,  40:  314,  89  N.  E. 
193,  203  Mass.   159. 

In  criminal  cases. 

Ex  post  facto  law  as  to,  see  Constitution- 
al Law,  33. 

772.  A  judgment  enjoining  a  liquor  nui- 
sance, founded  on  ex  parte  affidavits  in  a 
proceeding  in  which  defendant  did  not  ap- 
pear, is  not  admissible  in  evidence  in  a 
criminal  prosecution  against  him  for  sell- 
ing intoxicating  liquor  in  violation  of  law. 
State  V.  Weil,  26:  461,  65  S.  E.  634,  83  S. 
C.  478.  (Annotated) 
Inquisition  de  lunatico. 

See  also  supra,  736. 

773.  The  finding  of  a  jury  as  to  the  sani- 
ty of  a  person  over  whom  the  court  had  no 
jurisdiction  because  of  his  nonresidence  is  a 
nullity,  and  not  admissible  as  evidence 
of  the  fact  in  other  judicial  proceedings. 
Mathewson  v.  Mathewson,  18:  300,  69  Atl. 
646,  81  Vt.  173. 

774.  Ex  parte  records  in  lunacy  proceed- 
ings, made  after  the  execution  of  a  deed 
by  the  alleged  lunatic,  are  not  admissible 
in  evidence  in  an  action  to  set  aside  the 
deed.  Sprinkle  v.  Wellborn,  3:  174,  52  S.  E. 
666,  140  N.  C.  163. 

/.  Pleadings   and  papers   in   suit. 

{See  same  heading  in  Digest  L.R^.  1-70. J 

Admissibility  of  admissions  in,  see  supra, 
1261-1265. 

fir.  Evidence  previotisly  taken  or  used; 
affidavits. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Former  testimony. 

Admissibility   in   rebuttal,  see  infra,   1927. 

Review  of  discretion  as  to,  see  Appeal  and 
Error,  604. 

Objecting  for  first  time  on  appeal  to  mode 
of  proving  defendant's  testimony  given 
on  former  trial,  see  Appeal  and  Ersob, 
771. 

Prejudicial  error  as  to,  see  Appeal  and  Eb- 
ROB,  1152. 

Right  to  read  at  trial  of  one  accused  of 
crime  testimony  of  witnesses  given  be- 
for  committing  magistrate,  see  Crimi- 
nal Law,  103. 

Estoppel  to  object  to  admission  of  former 
testimony,  see  Estoppel,  120. 

See  also  infra,  X.  m. 

775.  A  stenographer's  transcript  of  testi- 
mony given  by  witnesses  at  a  former  trial 
Digest  1-52  I<.R.A.(N.S.) 


who  have  since  died  is  not  admissible  in  the 
absence  of  any  evidence  that  the  evidence 
was  correctly  transcribed,  other  than  the 
certificate  of  the  stenographer.  Williams 
V.  Sleepy  Hollow  Min.  Co.  7:  1170,  86  Pac. 
337,  37  Colo.  62. 

776.  If  a  witness  has  become  incompetent 
to  testify  at  the  second  trial  of  an  action 
on  account  of  the  death  of  the  other  party 
to  the  transaction,  because  of  a  statute  pro- 
viding that  no  person  shall  be  examined  as 
a  witness  in  regard  to  any  personal  trans- 
action with  a  person  who  has,  at  the  com- 
mencement of  the  examination,  deceased, 
against  his  personal  representative,  a  tran- 
script of  his  testimony  taken  at  the  former 
trial,  when  the  other  person  was  living,  can- 
not be  admitted,  notwithstanding  a  statu- 
tory provision  that  a  transcript  of  testi- 
mony taken  upon  a  trial,  when  material  and 
competent,  shall  be  admissible  on  a  retrial 
of  the  cause.  Greenlee  v.  Mosnat,  14:  488, 
111  N.  W.  996,  136  Iowa,  639.       (Annotated) 

777.  The  transcript  of  testimony  given  at 
a  former  trial,  as  to  a  transaction  with  a 
person  since  deceased,  is  not  made  admissi- 
ble as  a  deposition,  under  a  statute  provid- 
ing for  the  preservation  of  testimony  by 
deposition  in  case  the  death  of  the  other 
party  to  the  transaction  is  anticipated,  by  a 
statute  providing  that  a  transcript  of  testi- 
mony taken  at  a  former  trial,  when  material 
and  competent,  shall  be  admissible  in  evi- 
dence on  a  retrial,  and  shall  have  the  same 
force  and  effect  as  a  deposition.  Greenlee 
y.  Mosnat,  14:  488,  111  N.  W.  996,  136  Iowa, 
639. 

—  In  criminal  cases. 
See  also  infra,  784. 

778.  The  admissibility  in  a  homicide  case, 
notwithstanding  the  presence  of  the  defend- 
ant, of  his  testimony  on  former  trials  for 
the  same  offense,  is  not  affected  by  a  statute 
providing  that,  when  evidence  has  been  pre- 
served by  bill  of  exceptions  in  any  case,  the 
same  may  thereafter  be  used  in  the  same 
manner  as  if  such  testimony  had  been  pre- 
served in  a  deposition,  such  statute  having 
no  application  to  the  defendant  in  any  case. 
State  v.  Speyer,  14:  836,  106  S.  W.  505,  207 
Mo.  540. 

779.  The  sworn  statement  of  a  person 
who  was  not,  at  the  time,  accused  of  kill- 
ing the  deceased,  taken  by  a  justice  of  the 
peace,  without  warrant  of  law,  for  the 
purpose  of  determining  whether  or  not  he 
will  hold  an  inquest,  is  admissible  upon  the 
trial  of  such  person,  against  whom  an  in- 
dictment was  afterwards  preferred,  and  is 
not  protected  by  W.  Va.  Code  1899,  chap. 
152,  §  20,  since  it  was  not  made  by  the 
person  as  a  witness  upon  legal  examination. 
State  V.  Legg,  3:  1152,  53  S.  E.  545,  59  W. 
Va.  315. 

Depositions. 

Putting  entire  deposition  in  evidence,  see 
infra,  878. 

As  to  depositions  generally,  see  Deposi- 
tions. 

Right  to  object  to  admission  of  deposition, 
see  Tbial,  79. 


EVIDENCE,  IV.  h,  i. 


1131 


Supplying  loss  of  suppressed  deposition  by 
cross  examination  of  party,  see  Wit- 
nesses, 79. 

See  also  supra,  777. 

780.  In  a  will  contest  on  the  ground  that 
testator  entertained  an  insane  delusion  with 
respect  to  the  legitimacy  of  his  son,  the 
deposition  of  a  witness  in  a  proceeding  in 
•which  testator  sought  a  divorce  from  the 
child's  mother,  as  to  her  confession  to 
adultery  prior  to  the  birth  of  tlie  child  is 
admissible  to  show  that  testator  had  good 
grounds  to  doubt  the  paternity  of  the  child, 
and  cannot  be  excluded  on  the  presumption 
that  testator  was  not  aware  of  the  testi- 
mony. O'Dell  V.  Goff,  10 :  989,  112  N.  W. 
736,    149    Mich.    152. 

Affidavits. 

See  also  New  Trial,  86. 

781.  The  affidavit  of  mailing  a  notice  of 
the  time  when  the  right  to  redeem  from  a 
tax  sale  will  expire,  filed  with  the  clerk  of 
the  court  pursuant  to  N.  D.  Rev.  Codes 
1899,  §  1344,  is  competent  evidence  of  such 
mailing.  Nind  v.  Myers,  8:  157,  109  N.  W. 
335,  15  N.  D.  400. 

782.  An  afiidavit  made  through  an  inter- 
preter is  not  inadmissible  in  evidence 
against  the  affiant  because  the  interpreter 
was  not  sworn,  where  he  was  acting  not  in 
a  court  proceeding,  but  merely  as  agent  of 
the  parties.  Davis  v.  First  Nat.  Bank,  25: 
760,  89  S.  W.  1015,  6  Ind.  Terr.  124. 

783.  Plaintiff's  affidavit  alleging  the  ex- 
istence of  certain  facts  contained  in  alleged 
reports  by  employees  of  defendant  is  not 
admissible  against  the  defendant  because 
permission  to  inspect  and  copy  the  report, 
granted  by  order  of  the  court,  had  been  re- 
fused, where  such  order  had  been  granted  on 
an  unverified  motion  therefor,  without  the 
necessary  proof  of  the  existence  of  such 
reports.  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Burks,  18:  231,  96  Pac.  950,  78  Kan.  515. 

784.  A  requisition  for  a  fugitive  from 
justice  under  the  official  signature  of  the 
governor,  and  under  the  great  seal  of  the 
state,  cannot  be  impeached  by  affidavits  of 
strangers  that  the  governor  stated  that 
he  did  not  sign  the  requisition.  State  v. 
Massee,  46:  781,  79  S.  E.  97,  95  S.  C.  315. 

h.  Tax  hook  or  list. 

(See  same  heading  in  Digest  L.R.A.  1-70.) 

i.  Deeds;  wills;  leases;  mortgages. 

(See  also   same  heading  in  Digest  L.R.A. 
1-10.) 

Deeds. 

Admissibility  of  records  of,  see  supra.  754, 

756. 
To  show  intent  of  parties,  see  infra,  1629. 
See  also  supra,  743. 

785.  Recitals  of  heirship  in  a  recent  deed 
are  not  binding  against  strangers  to  the 
instrument.  Dyer  v.  Marriott,  45:  93,  131 
Pac.   1185,  89  Kan.  515.  (Annotated) 

786.  A  deed  containing  admissions  of 
facts  generally  conclusive  between  parties 
Digest  1-52  I^R.A.CN.S.) 


and  their  privies,  amounting  to  declara- 
tions of  a  pecuniary  or  proprietary  nature 
against  their  interest,  is  admissible  in  evi- 
dence by  a  stranger,  whether  plaintifl'  or  de- 
fendant, against  all  the  other  parties  to  the 
suit  who  have  a  joint  interest  in  the  matter 
of  it  with  the  party  making  the  admissions. 
Peters  v.  Nolan  Coal  Co.  9:  989,  56  S.  E.  735, 
61   VV.  Va.   392. 

787.  A  deed  executed  by  the  holder  of  an 
unrecorded  deed  whose  title  has  been  de- 
stroyed by  a  second  conveyance  by  the  origi- 
nal grantor  to  an  innocent  purchaser,  who 
recorded  his  deed,  upon  a  consideration 
moving  from  the  record  title  holder,  is 
admissible  on  the  question  of  damages,  in 
an  action  by  the  prior  grantee  against  the 
original  grantor  for  damages  for  such  loss 
of  title,  as  the  amount  of  consideration  re- 
ceived therefor  must,  with  the  taxes  ac- 
crued on  the  land,  be  deducted  from  the  val- 
ue to  plaintiff  of  the  land  at  tlie  time  he 
lost  title  thereto.  Hilligas  v.  Kuns,  26; 
284,  124  N.  W.  925,  86  Neb.  68. 

788.  In  an  action  to  recover  possession  of 
land,  wherein  the  defendant  relied  upon  the 
prescriptive  title  acquired  by  adverse  pos- 
session, by  himself  and  those  under  whom 
he  claimed,  for  seven  years  under  color  of 
title,  and  introduced  in  evidence  a  deed 
whereby  title  to  the  land  was  conveyed  to 
a  partnership,  and  a  writing  from  one  mem- 
ber thereof,  conveying  or  mortgaging  the 
land  to  another  to  secure  the  payment  of 
money  borrowed  by  the  grantor,  and  to 
indemnify  the  grantee  against  loss  by  his 
indorsement  of  notes,  in  which  writing  it 
was  provided  that,  if  the  grantor  failed  to 
pay  such  debts  within  a  specified  time,  the 
grantee  should  have  the  right  to  sell  and 
from  the  proceeds  pay  the  debts, — a  deed 
whereby  the  other  members  of  the  partner- 
ship conveyed  the  land  to  the  same  grantee 
imder  whom  defendant  claimed  is  admissible 
as  color  of  title,  over  objection  that  the 
title  was  in  the  partnership,  and  that  there 
was  no  deed  from  it,  or  the  other  member 
thereof,   to   the   member   conveying   to   the 

frantee.  Tarver  v.  Deppen,  24:  n6i,  65  S. 
;.  177,  132  Ga.  798. 

789.  Permitting  the  defendant  in  an  ac- 
tion to  recover  the  possession  of  land  to 
introduce  in  evidence  the  original  grant  is 
not  error,  where  the  plaintiff  has  introduced 
a  certified  copy  of  a  grant  from  the  state 
to  his  predecessor  in  title.  Tarver  v.  Dep- 
pen, 24:  1161,  65  S.  E.  177,  132  Ga.  798. 
Leases. 

790.  A  lease  obligating  the  landlord  to 
furnish  elevator  service  to  his  tenants  is 
admissible  in  evidence  in  an  action  by  :\ 
servant  of  the  lessee  against  the  landlord,  to 
recover  for  injury  received  by  the  operation 
of  the  elevator.  Sciolaro  v.  Asch,  32:  945, 
91  N.  E.  263,  198  N.  Y.  77. 

791.  Since  the  fact  that  a  carrier  is  oper- 
ating under  a  lease  of  tracks  and  station 
facilities  which  makes  it  subject  to  the  rules 
and  regulations  of  the  lessor  does  not  of 
itself  absolve  it  from  liability  for  failure 
to  exercise  supervision  over  persons  coming 
to  the  station  to  take  its  trains,  necessary 


1132 


EVIDENCE,  IV.  j,  k. 


to  prevent  injury  by  crowding  into  the  cars, 
it  is  not  error  to  exclude  from  evidence  the 
lease,  in  an  action  against  the  carrier  for 
injury  caused  by  such  a  crowd.  Kuhlen  v 
Boston  &  N.  Street  R.  Co.  7:  729,  79  N.  E. 
S16,  193  Mass.  341. 

J.  Accounts  and  account  books. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Best  and  secondary  evidence  of,  Bee  supra, 
725-727. 

Books  of  account  6f  corporation,  see  infra, 
IV.  1. 

Memorandum  book,  see  infra,  IV.  q. 

In  action  for  obtaining  money  by  false  pre- 
tenses, see  False  Pretenses,  9. 

792.  A  statement  of  account  is  admissible 
in  evidence  against  one  who  has  admitted 
its  correctness.  Richardson  v.  Anderson, 
25:  393,  72  Atl.  485,  109  Md.  641. 

793.  A  ledger  page  is  not  admissible  in 
evidence  to  prove  an  account,  in  the  ab- 
sence of  anything  to  show  that  it  contained 
original  entries,  or  was  just  and  true.  Hol- 
loway  V.  White-Dunham  Shoe  Co.  10:  704, 
151   Fed.  216,  80  C.  C.  A.  568. 

794.  Books  of  original  entry  of  a  con- 
tractor and  builder,  kept  by  a  bookkeeper 
who,  according  to  an  established  system  or 
method  of  transacting  the  business,  records 
the  oral  or  written  reports  made  to  him  by 
onfi  or  more  persons  in  the  regular  course 
of  business,  of  transactions  lying  in  the 
personal  knowledge  of  the  latter,  whether 
such  bookkeeper  have  personal  knowledge 
of  such  transaction  or  not,  are  admissible  in 
evidence  in  connection  with  the  testimony 
of  such  bookkeeper  showing  the  regularity 
of  the  entries  therein  by  him,  to  prove  an 
account  therein,  without  the  evidence  of 
witnesses  having  personal  knowledge  of 
the  transactions,  provided  the  testimony  of 
such  witnesses,  because  of  death,  interest, 
incompetency,  absence,  inconvenience,  or 
otherwise  be  unavailing.  West  Virginia 
Architects  &  Builders  v.  Stewart,  36:  899, 
70  S.  E.  113,  68  W.  Va.  506.       (Annotated) 

795.  Entries  in  a  trustee's  account  show- 
ing payments  on  indebtedness  due  the  bene- 
ficiaries are  admissions  against  interest, 
which  are  proper  evidence  to  show  that  the 
payments  were  made,  in  a  controversy  be- 
tween the  mortgagor  and  the  beneficiaries 
of  the  trust.  McLeod  v.  Despain,  19:  276, 
90  Pac.  492,  49  Or.  536. 

Books  of  third  person. 

796.  Books  of  a  banker  with  whom  pub- 
lic funds  are  deposited  are  admissible 
against  the  sureties  in  an  action  to  enforce 
their  liability  on  the  bond,  for  the  purpose 
of  making  a  prima  facie  case  of  the  amount 
due  on  the  account.  Kuhl  v.  Chamberlain, 
21:  766,  118  N.  W.  776,  140  Iowa,  540. 

797.  Under  the  provisions  of  the  statute 
that  entries  in  books  intended  as  records 
of  payments  and  similar  matters,  made  in 
the  regular  course  of  business  at  or  near  the 
time  of  the  transaction,  shall  be  admissible 
Digeit  1-52  KR.A.(N.S.) 


in  evidence  on  proof  that  they  were  so  made, 
the  fact  that  a  corporation  made  certain 
payments  may  be  show  by  its  books,  al- 
tliough  it  is  not  a  party  to  the  action.  Rich- 
olson  V.  Ferguson,  40:  855,  124  Pac.  360,  87 
Kan.  411. 

798.  Upon  the  question  of  keeping  intoxi- 
cating liquors  witli  intent  to  sell  them  with- 
out authority,  evidence  of  an  account  with 
a  wholesaler,  showing  purchases  of  quanti- 
ties of  such  liquors,  is  admissible  in  evi- 
dence. State  V.  Barr,  48:  302,  77  Atl.  914, 
84   Vt.   38. 

799.  The  accounts  of  a  firm  of  solicitors 
employed  by  testamentary  trustees  in  the 
execution  of  trusts  of  the  will  are  not  ad- 
missible in  an  action  against  the  trustees 
to  recover  trust  funds  which  had  been  mis- 
appropriated by  a  member  of  the  firm,  and 
for  an  accounting,  in  the  absence  of  evidence 
as  to  any  authority,  beyond  that  implied  in 
the  relation  of  solicitor  and  client,  which 
would  make  such  books  the  books  of  the 
trustees.  Re  Fountaine,  2  B.  R.  C.  654, 
[1909]  2  Ch.  382.  Also  Reported  in  78  L. 
J.  Ch.  N.  S.  648,  101  L.  T.  N.  S,  83,  25 
Times  L,  R.  689. 

800.  The  books  of  aecount  of  a  firm  are 
not  rendered  admissible  in  evidence  under 
the  rule  that  entries  by  a  deceased  person 
against  his  interest  are  admissible  in  evi- 
dence in  an  action  between  tliird  parties, 
by  the  fact  that  one  member  of  the  firm  is 
dead,  where  it  is  not  shown  that  the  en- 
tries wei'e  made  by  the  deceased  partner 
himself  or  by  his  direction.  Re  Fountaine, 
2  B.  R.  C.  654,  [1909]  2  Ch.  382.  Also  Re- 
ported in  78  L.  J.  Ch.  N.  S.  648,  101  L.  T. 
N.  S.  83,  25  Times  L.  R.  689.  (Annotated) 
Effect  of  death,  of  party  making  en- 
tries. 

See  also  supra,  800;  infra,  819,  844-846(< 
864. 

801.  Entries  by  an  insurance  agent  in  the 
policy  register  are  not  within  the  operation 
of  a  statute  making  admissible  in  evidence 
entries  by  a  person  since  deceased  when 
made  in  a  professional  capacity  or  in  the 
ordinary  course  of  professional  conduct. 
Cummings  v.  Pennsylvania  F.  Ins.  Co.  37: 
1169,  134  N.  W,  79,  153  Iowa,  579. 

802.  Entries  in  the  books  of  a  person  since 
deceased,  showing  that  a  payment  to  one 
person  was  intended  to  be  applied  in  sat- 
isfaction of  a  debt  to  another,  or  that  cash 
payments  were  to  be  applied  in  satisfaction 
of  indebtedness  on  a  duebill,  are  not  ad- 
missible in  evidence  in  an  action  by  the  lat- 
ter to  enforce  his  claim.  Wells  v.  Hays, 
42:  727,  76  S.  E.  195,  93  S.  C.  168. 

fc.  Letters;  telegrams;  etc. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Letters. 

Authentication  of,  see  supra,  738,  739,  741. 

Sufficiency  of  evidence  to  show  authentici- 
ty, see  supra,  739. 

Confidential  nature  of  letter  of  wife's  at- 
torney to  husband,  see  infra,  1316. 


EVIDENCE,  IV.  k. 


113S 


Confidential  nature  of  letter  written  be- 
tween husband  and  wife,  see  infra,  1339, 
1341. 

Curing  error  in  admission  of  parol  evidence 
of  contents,  see  Appeal  and  Error, 
839. 

Prejudicial  error  as  to,  see  Appeal  and  Er- 
ror,  1135,   1246,    1255. 

Admissibility  to  impeach  witness,  see  Wit- 
nesses, 148. 

See»%l80  supra,  745;  infra,  877,  1229,  1351, 
1433. 

803.  In  an  action  to  hold  one  liable  in 
damages  for  securing  the  withdrawal  of  the 
surety  from  plaintiff's  bond,  the  letter  is 
admissible  in  evidence  upon  which  the  sure- 
ty acted  in  reaching  its  decision.  McClure 
V.  McClintock,  42:  388,  150  S.  W.  332,  849, 
150  Ky.  265,  773. 

804.  On  the  trial  of  an  action  for  breach 
of  promise  of  marriage,  letters  tending  to 
shed  light  upon  the  issues  or  tending  to 
disclose  the  actual  relationship  of  the  par- 
ties in  reference  thereto  are  admissible. 
Baumle  v.  Verde,  41:  840,  124  Pac.  1083, 
33  Okla.  243. 

805.  Upon  the  question  whether  or  not  an 
agreement  to  construct  a  pass  way  was  part 
of  the  consideration  for  a  grant  of  land  to 
a  railroad  company  for  a  right  of  way,  let- 
ters which  throw  no  light  upon  the  ques- 
tion are  not  admissible  in  evidence.  Trout 
V.  Norfolk  &  W.  R.  Co.  17:  702,  59  S.  E.  394, 
107  Va.  576. 

806.  Letters  written  by  a  wife  to  her  hus- 
band before  their  marriage  are  not  admis- 
sible upon  his  trial  for  killing  her,  where 
the  killing  was  not  connected  with  any- 
thing upon  which  the  letters  would  have 
a  bearing.  Montgomery  v.  State,  18:  339, 
116  N.  W.  876,  136  Wis.  119. 

807.  Upon  the  question  whether  or  not 
a  check  was  tendered  in  settlement  of  a  dis- 
puted claim,  letters  passing  between  the 
parties  prior  to  the  time  of  the  tender, 
tending  to  show  the  dispute,  are  admissible 
in  evidence.  Barham  v.  Bank  of  Delight, 
27:  439,  126  S.  W.  394,  94  Ark.  158. 

808.  Letters  announcing  shipments  of 
money  to  a  bank  are  not  competent  evi- 
dence to  establish  the  fact  of  actual  ship- 
ment, for  the  purpose  of  establishing  its 
embezzlement  by  an  officer  of  the  bank  who 
has  since  absconded.  Title  Guaranty  &  S. 
Co.  V.  Bank  of  Fulton,  33:  676,  117  S.  W. 
537,  89  Ark.  471. 

809.  Letters  to  a  mutual  benefit  associa- 
tion from  a  member  denying  the  claim  of 
the  beneficiary  that  she  acquired  the  certifl- 
cAte  for  value,  put  in  evidence  by  the  asso- 
ciation in  an  action  against  it  by  the  bene- 
ficiary to  recover  upon  the  certificate,  can- 
not be  regarded  as  offered  for  the  purpose 
of  contradicting  her  testimony  that  her 
designation  as  beneficiary  was  based  upou 
a  valuable  consideration  moving  from  her, 
where  the  letters  were  competent  evidence 
under  other  defenses  urged  by  defendant, 
and  were  received  after  statement  by  its 
counsel  that  it  had  no  evidence  to  contradict 
the  claim  of  a  designation  for  value. 
Digest   1-52  I-.R.A.(N.S.) 


Stronge  v.  Supreme  Lodge,  K.  of  P.  12:  1206, 
82  N.  E.  433,   189  N.  Y.  346. 

810.  A  letter  is  admissible  in  evidence  to 
contradict  the  testimony  of  the  purported 
writer  that  he  did  not  give  it  to  the  man 
who  took  a  wagon  from  his  house,  upon  the 
testimony  of  a  person  who  went  to  see- 
about  the  wagon,  that  he  handed  it  to  him. 
Davis  V.  First  Nat.  Bank,  25:  760,  89  S. 
W.  1015,  6  Ind.  Terr.  124. 

—  I<etters    -writteii    by    agents,    repre- 

sentatives, etc. 

811.  Upon  the  question  of  the  considera- 
tion for  land  deeded  to  a  railroad  company 
for  a  right  of  way,  letters  written  after  exe- 
cution of  the  deed,  by  persons  not  shown 
to  have  been  the  authorized  agents  of  the 
railroad  company  or  to  have  had  anything 
to  do  with  the  making  of  the  contract,  are 
inadmissible.  Trout  v.  Norfolk  &  W.  R.  Co. 
17:  702,  59  S.  E.  394,  107  Va.  576. 

812.  Although  agents  of  an  insurance 
company  had  no  authority  to  waive  pro- 
visions of  the  policy,  letters  written  by  them 
upon  the  question  of  the  adjustment  of  a 
claim  after  the  company  itself  had  termi- 
nated the  attempt  at  adjustment  are  admis- 
sible in  evidence  in  a  suit  upon  the  policy, 
upon  the  question  of  waiver  of  a  provision 
in  a  policy  that  suits  must  be  brought  with- 
in thirty  days  after  the  liability  accrued,  by 
efforts  to  compromise,  prolonged  beyond  the 
expiration  of  such  period.  Lynchburg  Cot- 
ton Mill  Co.  V.  Travelers'  Ins.  Co.  9:  654, 
149   Fed.   954,  79   C.   C.   A.   464. 

813.  A  statement  in  a  letter  written  and 
sent  to  an  employee  by  the  master's  super- 
intendent of  employment,  that  the  employee 
resigned  from  the  defendant's  service,  is 
not  of  itself  competent  evidence  against  the 
employee  of  such  resignation.  Kane  v. 
Chicago,  B.  &  Q.  R.  Co.  36:  1145,  132  N.  W. 
920,  90  Neb.  112. 

814.  A  letter  written  by  the  surgeon  in 
charge  of  a  railroad  hospital  to  the  head  of 
the  department  who  sent  an  employee  to 
the  institution,  that  the  employee  was  in- 
sane, which  fact,  according  to  the  rules,  de- 
prived him  of  the  right  of  treatment  in 
the  hospital,  and  asking  that  his  family  be 
requested  to  protect  him,  is  admissible  in 
evidence  in  a  suit  against  the  railroad  com- 
pany to  recover  for  the  death  of  the  em- 
ployee, alleged  to  have  been  due  to  the 
negligence  of  the  hospital  authorities  in  per- 
mitting him  to  leave  the  hospital  without 
attendants.  Phillips  v.  St.  Louis  &  S.  F, 
R.  Co.  17:  1167,  111  S.  W.  109,  211  Mo.  419. 

815.  In  an  action  to  hold  a  municipal 
corporation  liable  for  interfering  with  the 
flow  of  water  in  the  tailrace  of  a  mill  by 
clearing  the  channel  of  a  river  within  its 
limits,  which  it  had  statutory  power  to  do, 
a  letter  from  the  mayor,  purporting  to  givri 
the  reason  for  the  act,  is  properly  excluded 
from  evidence.  Chase-Hibbard  Milling  Co. 
v.  Elmira,  47:  470,  101  N.  E.  158,  207  N. 
Y.  460. 

—  IJetters  not  received. 

816.  A  letter  written  to  a  party  to  a  suit 
is  not  admissible  in  evidence  against  him 
if  it  was  never  received  by  him,  and  haa 


1134 


EVIDENCE,  IV.  1. 


never  been  in  his  possession.  Wilson  v. 
Mitchell,  30:  507,  111  Pac.  21,  48  Colo.  454. 
Telegrams. 

817.  The  court  may,  in  a  habeas  corpus 
proceeding  to  release  one  arrested  as  a 
fugitive  from  justice,  consider  telegrams 
from  the  governor  of  the  demanding  state 
and  of  the  state  upon  which  the  demand 
was  made,  to  the  effect  that  the  requisition 
had  been  vi^ithdrawn.  State  v.  Massee,  46: 
781,  79  S.  E.  97,  95  S.  C.  315. 

I.  Records  and  papers  of  corporations 
or  carriers. 

(See  also  same  heading  in  Digest  L.B.A. 
1-70.) 

Parol  evidence  as  to,  see  supra,  701,  703, 

705. 
Corporate  notes,  see  infra,  832. 
Prejudicial   error   as   to,   see   Appeal   and 

Erbob,  1150. 
See  also  supra,  811,  812. 

818.  The  books  and  records  of  a  private 
corporation  are  not  competent  evidence 
against  third  persons,  in  the  absence  of 
proof  of  their  knowledge  and  assent  to 
them,  to  establish  their  relation  of  stock- 
holders to  the  corporation,  or  to  prove  other 
contracts  between  them  and  it.  But  admis- 
sions of  a  party  against  his  interest,  in- 
scribed upon  the  books  of  a  corporation  and 
signed  by  him,  are  as  competent  and  per- 
suasive evidence  against  him  as  though  they 
were  written  elsewhere.  Harrison  v.  Rem- 
ington Paper  Co.  3:  954,  140  Fed.  385,  72 
C.  C.  A.  405. 

819.  A  report  made  by  an  agent  of  a  mer- 
cantile corporation  to  it,  as  to  the  financial 
standing  of  a  merchant  wliich  he  had  been 
sent  to  investigate,  and  placed  on  file  in 
due  course  of  business,  is  admissible  as 
evidence  of  facts  whicli  he  learned  at  the 
time,  although  he  has  since  deceased. 
Davis  V.  Louisville  Trust  Co.  30:  loii,  181 
Fed.  10,  104  C.  C.  A.  24. 

Carriers. 

Time  tables,  see  infra,  855. 

820.  Upon  the  question  of  larceny  by  a 
shipper  of  freight  of  material  loaded  in  the 
car,  a  shipping  receipt  is  not  admissible 
upon  which  a  notation  was  made  of  facts 
tending  to  show  a  larceny  after  the  shipper 
had  been  charged  therewith.  State  v.  Roze- 
boom,  29:  37,  124  N.  W.  783,  145  Iowa,  620. 

821.  A  train  sheet  which  is  the  despatch- 
er's  record  of  the  arrival  and  departure  of 
trains  along  the  line,  and  which  it  is  his 
duty  to  keep,  is  admissible  in  evidence  to 
show  the  location  of  the  train  at  the  time 
of  an  alleged  accident  on  the  road.  Louis- 
ville &  N.  R.  Co.  V.  Daniel,  3:  1190,  91  S. 
W.   691,  122  Ky.  256.  (Annotated) 

822.  A  railroad  stock-yard  record  of  the 
arrival  and  departure  of  cars  unloading  for 
feeding  is  not  admissible  in  evidence  in  an 
action  for  damages  for  injuries  to  stock 
transported  by  the  railroad,  under  a  statute 
providing  that  entries  in  books  of  account 
may  be  admitted  in  evidence  where  it  ap- 
Digest  1-52  I<.B.A.(N.S.) 


pears  by  the  oath  of  the  person  making 
such  entries  that  they  are  correct  and  were 
made  at  or  near  the  time  of  the  transac- 
tion to  which  they  relate,  or  upon  proof  of 
the  handwriting  of  such  person,  in  case 
of  his  death  or  absence  from  the  county, 
where  such  records  are  not  verified  by  the 
person  who  made  them,  and  it  is  not  shown 
that  such  person  is  dead  or  absent  from 
the  county,  although  it  was  kept  in  the 
regular  course  of  business,  and  the  eipiries 
were  made  at  or  about  the  time  of  the 
transaction  involved.  Missouri  K.  &  T.  R. 
Co.  V.  Davis,  24:  866,  104  Pac.  34,  24  Okla. 
677. 

^3.  The  report  in  the  course  of  his  du- 
ties, to  his  employer,  by  a  conductor,  of  the 
details  of  an  accident  which  occurred  on 
his  car,  very  soon  after  the  occurrence,  is 
not  admissible  in  evidence  in  favor  of  the 
company  in  an  action  to  hold  it  liable  for 
the  injury,  since  it  is  merely  a  self-serving 
document.  Conner  v.  Seattle,  R.  &  S.  R.  Co. 
25:  930,  105  Pac.  634,  56  Wash.  310. 

( Annotated ) 

824.  Upon  the  question  of  what  cars  were 
destroyed  in  a  certain  yard  by  a  mob,  record 
books  of  the  railroad  company  are  admissi- 
ble, the  entries  in  which  are  shown  to  have 
been  correctly  copied  in  the  regular  course 
of  business  from  reports  by  conductors  and 
other  employees  as  to  the  construction  and 
present  condition  of  cars,  and  their  arrival 
and  departure  from  yards,  which  are  also 
shown  to  be  correct,  where  the  preservation 
of  the  original  reports  would  have  been  im- 
possible. Pittsburg,  C.  C.  &  St.  L.  R.  Co. 
v.  Chicago,  44:  358,  89  N.  E.  1022,  242  111. 
178. 

Railroad  companies  generally. 

825.  A  book  containing  private  rules  for 
the  government  of  railroad  employees  in  1 
train  service  does  not  tend  to  fix  the 
standard  of  their  duty  to  others,  and  is  in- 
admissible in  an  action  against  the  railroad 
company  to  recover  damages  caused  by  fire 
communicated  from  a  locomotive.  Conti- 
nental Ins.  Co.  V.  Chicago  &  N.  W.  R.  Co. 

5:  99,  107  N.  W.  548,  97  Minn.  467. 

826.  Reports  of  car  inspectors  concern- 
ing the  defective  condition  of  a  coupler  are 
inadmissible  in  an  action  against  a  railway 
corporation  for  damages  for  personal  inju- 
ries alleged  to  have  been  occasioned  by  the 
defective  coupling,  as  admissions  bj'  the  de- 
fendant of  facts  stated  in  the  reports,  un- 
less such  reports  have  been  adopted  or 
promulgated  in  an  authoritative  way  by 
some  official  having  power  to  bind  the  cor- 
poration by  admissions.  Atchison,  T.  &  S. 
F.  R.  Co.  V.  Burks,  18:  231,  96  Pac.  950,  78 
Kan.    515.  (Annotated) 

827.  A  report  by  a  station  agent  to  the 
general  manager  of  a  railroad  on  the  day 
after  a  fire  had  occurred  at  his  station,  in 
which  he  states  the  cause  of  the  fire  to  have 
been  sparks  from  a  locomotive,  is  not  ad- 
missible against  the  railroad  company  in, 
an  action  to  hold  it  liable  for  the  loss. 
Warner  v.  Maine  C.  R.  Co.  47:  830,  88  Atl. 
403,  111  Me.  149.  (Annotated). 


EVIDENCE,  IV.  m— p. 


1135 


m.  Notes  and  checks;  indorsements. 

(See  also   same   heading   in  Digest  L.B.A. 
1-10.) 

Notes. 

See  also  supra,  737. 

828.  A  writing  in  the  form  of  a  promis- 
sory note,  with  blank  for  the  amount  un- 
filled, is  not  admissible  in  evidence  in  sup- 
port of  an  action  upon  a  promissory  note. 
Chestnut  v.  Chestnut,  2:  879,  52  S.  E.  348, 
104  Va.  539. 

829.  In  an  action  of  debt  on  a  negotiable 
note,  the  instrument  declared  on  is  admissi- 
ble in  evidence  under  an  allegation  in  the 
declaration  that  "the  defendant  made  and 
signed  his  certain  promissory  note  in  writ- 
ing," which  is  followed  by  a  full  description 
of  the  note,  including  the  place  of  payment. 
Boyd  V.  Beebe,  17:  660,  61  S.  E.  304,  64  W. 
Va.  216. 

830.  While  a  judgment  upon  promissory 
notes  merges  them  therein,  so  that  the  own- 
er of  the  judgment  may  not  maintain  an 
action  against  the  judgment  debtor  upon 
them,  they  still  remain  competent  evidence 
of  the  existence  of  the  debt  which  they  rep- 
resent in  all  other  actions.  Harrison  v. 
Remington  Paper  Co.  3:  954,  140  Fed.  385, 
72  C.  C.  A.  405. 

831.  Notes  executed  subsequent  to  the  al- 
leged assignment,  by  the  payee  thereof,  of 
other  notes  to  the  maker  of  such  subse- 
quent notes,  which  were  discounted  and 
paid,  are  admissible  in  an  action  for  an 
accounting  as  to  the  prior  notes,  which 
had  been  redelivered  to  the  assignor  for 
collection,  as  tending  to  discredit  the  as- 
signment to  the  plaintiff  of  the  notes  as 
to  which  an  accounting  is  demanded.  Sayre 
V.  Woodyard,  28:  388,  66  S.  E.  320,  66  W. 
Va    288. 

832.  Notes  of  a  corporation  which  had 
taken  over  the  business  of  a  partnership, 
indorsed  by  the  partnership  name  without 
the  knowledge  of  a  retiring  member  or  any 
evidence  of  benefit  to  the  firm,  are  not 
admissible  as  evidence  of  his  recognition  of 
the  authority  of  his  copartner  to  continue 
to  execute  notes  in  the  name  of  the  firm. 
Seufert  v.  Gille,  31:  471,  131  S.  W.  102,  230 
Mo.  453. 

833.  The  insertion,  by  an  agent  of  a  life 
insurance  company,  of  a  pencil  memoran- 
dum of  the  number  of  the  policy,  in  a  blank 
left  for  that  purpose  in  a  note  given  for 
the  initial  premium,  will  not  prevent  its 
introduction  in  evidence  in  an  action  upon 
the  policy,  defended  on  the  ground  that  it 
had  been  forfeited  by  nonpayment  of  the 
note,  where  there  is  no  question  as  to  the 
identity  of  the  note,  or  of  any  fraudulent 
purpose.  Hipp  v.  Fidelity  Mut.  L.  Ins.  Co. 
12:  319,  57  S.  E.  892,  128  Ga.  491. 
Checks. 

Memorandum  on  stub  of  check,  see  infra, 
842. 

834.  On  the  prosecution  of  a  member  of 
the  board  of  education  charged  with  ac- 
cepting a  bribe  to  influence  his  official  ac- 
tion, and  who  is  shown  to  have  cashed  a 
Digest   1-52   I..R.A.(N.S.) 


check  payable  to  his  order  for  the  amount 
he  is  charged  with  receiving,  drawn  by  the 
person  from  whom  it  is  charged  he  received 
the  bribe,  the  check  itself  is  competent  evi- 
dence against  him  to  establish  the  receipt 
of  the  money.  State  v.  Campbell,  9:  533, 
85  Pac.  784,  73  Kan.  688. 

n.  Contracts. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 

o.  Scientific  and  medical  booTca. 

(See  also   same  heading  in  Digest  L.R.A. 
1-10.) 

Prejudicial  error  in  admission  of,  see  Ap- 
peal AND  Ebeob,  1273. 

p.  For  purposes  of  comparison. 

(See  also   sam,e  heading  tn  Digest  L.B.A. 
1-10.) 

Opinion    evidence    as    to    handwriting,    see 

infra,  VII.  m. 
Admissibility  of  evidence  of  comparison  of 

foot  prints  with  shoes,  see  infra,  885. 
See  also  supra,   741,  742. 

835.  Evidence  of  professed  tests  printed 
in  a  book  of  instructions  as  to  the  use  of 
a  patent  brake  is  not  admissible  upon  the 
question  as  to  the  distance  within  which  a 
train  can  be  stopped.  Illinois  C.  R.  Co.  v. 
Stith,  i:  1014,  85  S.  W.  1173,  120  Ky.  237. 
To   prove   anthorsliip. 

836.  Upon  the  question  whether  or  not  a 
disputed  signature  was  forged,  other  signa- 
tures are  admissible  in  evidence  for  the  pur- 
pose of  showing  that  they  are  so  nearly 
identical  that  some  or  all  must  have  been 
traced;  especially  if  one  has  been  shown  to 
have  been  a  forgery.  Stitzel  v.  Miller,  34: 
1004,  95  N.  E.  53,  250  111.  72.       (Annotated) 

837.  For  purposes  of  identifying  one  ac- 
cused of  crime,  a  date  and  initial  carved  in 
wood  at  the  time  and  near  the  place  where 
the  crime  was  committed  are  admissible  in 
evidence,  if  they  contain  peculiarities  of 
punctuation  and  formation  which  are  shown 
to  be  habitual  with  accused.  State  v.  Kent, 
26:  990,  74  Atl.  389,  83  Vt.  28. 

838.  Dates  and  initials  carved  in  wood  at 
the  time  and  near  the  place  of  the  com- 
mission of  a  crime  are  not  inadmissible  in 
evidence  against  one  as  to  whom  a  basis 
of  comparison  has  been  established  by  show- 
ing from  genuine  writings  an  habitual 
peculiarity  in  punctuation  and  the  forma- 
tion of  letters,  on  the  ground  that  the  evi- 
dence is  inconclusive.  State  v.  Kent,  26: 
990,  74  Atl.  389,  83  Vt.  28. 

839.  A  document  otherwise  irrelevant 
may  be  introduced  in  evidence  as  a  standard 
for  comparison  of  handwriting  if  its  in- 
troduction will  not  tend  to  raise  a  collateral 
issue  as  to  the  genuineness  of  the  signa- 
tures offered  or  the  fairness  of  the  speci- 
men. Smith  V.  Hanson,  18:  520,  96  Pac. 
1087,  34   Utah,   171.  (Annotated) 


1136 


EVIDENCE,  IV,  q,  r. 


—  Typewritten  instrument. 

840.  Upon  the  question  of  forgery  of  a 
typewritten  will  the  work  on  which  pre- 
sents peculiar  mechanical  characteristics, 
work  of  a  typewriting  machine  possessing 
the  same  characteristics  is  admissible  in 
evidence  to  establish  the  identity  of  the 
machine  which  produced  the  will  and  exam- 
ples of  work  80  introduced.  People  v. 
Storrs,  45:  860,  100  N.  E.  730,  207  N.  Y. 
147.  (Annotated) 

.ii^-^uoO      q.  Memoranda, 

(S4e  Ulso  same  heading  in  Digest  L.R.A. 
1-10.) 

Computations    and    tabulations,    see    infra, 

851-856. 
Error    in    admission    of,    see    Appeal    and 

Ebbob,    1176. 

841.  A  memorandum  by  a  property  owner, 
of  unpaid  bills  of  a  tenant,  is  a  statement 
of  fact,  and  not  of  opinion.  Walter  v. 
Sperry,  44:  28,  85  Atl.  739,  86  Conn.  474. 

842.  A  memorandum  on  the  stub  of  a 
check,  that  it  was  intended  as  payment  upon 
an  indebtedness  to  the  payee's  principal,  is 
not  admissible  in  evidence  in  an  action  by 
the  principal  to  enforce  payment  of  such  in- 
debtedness. Wells  V.  Hays,  42:  727,  76  S.  E. 
195,    93    S.    C.    168.  (Annotated) 

843.  Upon  trial  of  a  charge  of  conspiracy 
to  induce  a  shipper  to  receive  rebates  in 
violation  of  the  "Elkins  act,"  after  it  has 
been  shown  that  he  received  money  from 
some  source  in  some  way  related  to  his 
shipments,  and  that  the  account  was  not 
carried  on  the  books  of  his  business,  evi- 
dence of  the  contents  of  a  private  memo- 
randum book  with  reference  to  them  is  ad- 
missible. Thomas  v.  United  States,  17:  720, 
156  Fed.  897,  84  C.  C.  A.  477. 

By  person  since  deceased. 
See  also  supra,  800-802,  819. 

844.  Memoranda  on  the  policy  register  of 
a  deceased  insurance  agent  are  not  admis- 
sible in  evidence  to  prove  the  contents  of  a 
policy  issued  by  him,  subsequently  lost, 
where  they  cannot  be  verified  by  anyone 
knowing  the  facts  recited  therein  to  be  true. 
Cummings  v.  Pennsylvania  F.  Ins.  Co.  37: 
1169,  134  N.  W.  79,  153  Iowa,  579. 

845.  A  memorandum  of  a  person  since  de- 
ceased need  not  contain  facts  to  which  he, 
if  living,  could  testify,  to  be  admissible  in 
evidence  in  a  proceeding  against  his  ad- 
ministrator, under  a  statute  providing  that 
in  actions  against  representatives  of  de- 
ceased persons  relevant  entries,  memoranda, 
and  declarations  of  decedent  may  bei  re- 
ceived in  evidence.  Walter  v.  Sperry,  44: 
28,  85  Atl.  739,  86  Conn.  474. 

846.  Memoranda  by  a  property  owner 
since  deceased,  to  the  effect  that  a  bill  of 
lumber  delivered  on  his  premises  was  on 
account  of  his  tenant,  are  admissible  in  an 
action  against  his  administrator  to  hold  the 
estate  liable  therefor,  no  matter  how  often 
repeated,  and  even  though  they  were  made 
after  the  action  was  begun,  under  a  statute 
Digest  1-52  I..R.A.(N.S.) 


providing  that  in  actions  against  repre- 
sentatives of  deceased  persons  relevant  en- 
tries, memoranda,  and  declarations  of  de- 
ceased may  be  received  in  evidence.  Walter 
V.  Sperry,  44:  28,  85  Atl.  739,  86  Conn.  474. 

(Annotated) 

r.  Miscellaneous.  • 

(See  also   same  heading   in  Digest  L.R.A. 
1-70.) 

As  part  of  record  on  appeal,  see  Appeal 
AND  Error,  193,   194. 

847.  The  written  record  of  an  auction 
sale  is  admissible  in  evidence  in  an  action 
to  recover  damages  for  failure  to  comply 
with  the  bid.  Kennell  v.  Boyer,  24:  488, 
122  N.  W.  941,  144  Iowa,  303. 

848.  Statements  furnished  the  govern- 
ment, of  plant,  labor,  and  material  em- 
ployed by  a  contractor  in  work  for  it,  are 
not  admissible  in  evidence  upon  the  ques- 
tion whether  or  not  the  contractor  was  de- 
layed by  failure  of  one  who  had  undertaken 
to  furnish  him  with  material  in  an  action 
by  the  latter  to  compel  payment  for  the 
material  furnished.  United  States  use  of 
Hudson  River  Stone  Supply  Co.  v.  Molloy, 
11:  487,  144  Fed.  321,  75  C.  C.  A.  283. 

849.  That  an  order  declaring  the  adoption 
of  a  prohibitory  law  contains  phrases  not 
found  in  the  statutory  order,  and  omits  cer- 
tain statutory  exceptions  not  referring  tO' 
sales  for  beverage  purposes,  will  not  prevent 
its  reception  in  evidence  in  a  prosecution 
for  selling  liquor  contrary  to  the  statute, 
since,  if  the  order  declared  that  the  pro- 
hibitory law  was  adopted,  the  provisions  of 
the  law  would  govern  in  determining  guilt. 
State  V.  Billups,  48:  308,  127  Pac.  686,  65 
Or.  277. 

Appraisement;  inventory. 

850.  The  inventory  of  the  administrator 
of  one  killed  by  negligence  is  not  admissible 
in  evidence  upon  the  question  of  damages 
for  his  death,  as  tending  to  show  his  abili- 
ty to  earn  and  accumulate  money.  Cooper  v. 
North  Carolina  R.  Co.  3:  391,  52  S.  E.  932, 
140  N.  C.  209. 

Mortality  tables. 

851.  The  American  Table  of  Mortality  is 
admissible  in  evidence  upon  the  question 
of  expectation  of  life.  Illinois  C.  R.  Co.  v. 
Houchins,  i :  375,  89  S.  W.  530,  121  Ky.  526. 

852.  Wigglesworth's  mortality  tables  are 
admissible  in  evidence,  in  an  action  by  a 
widow  to  recover  for  the  negligent  killing^ 
of  her  husband,  to  show  the  expectancy  of 
life  of  the  deceased,  who  was  fifty-six  years 
old  and  in  good  health  when  he  met  hi» 
death.  Springfield  Electric  Light  &  P.  Co. 
V.  Calvert,  14:  782,  83  N.  E.  184,  231  HI. 
290. 

853.  A  mortality  table  printed  in  a  law 
book  is  not  admissible  in  evidence,  where  it 
is  not  shown  to  have  been  in  actual  use  for 
the  purpose  for  which  such  tables  are  in- 
tended, or  to  have  acquired  a  reputation  for 
accuracy,  unless  its  authenticity  is  estab- 
lished   by    competent    evidence.      Notto    v. 


EVIDENCE,  IV.  r. 


1137 


Atlantic  City  R.  Co.  17:  1138,  69  Atl.  968, 
75  N.  J.  L.  826.  (Annotated) 

854.  Upon  the  question  of  the  injury  to  a 
woman  whose  husband  is  incapacitated  from 
supporting  her  by  liquor  sold  him,  the  mor- 
tality tables  are  admissible  in  evidence, 
although  she  has  procured  a  divorce  from 
him.  Merrinane  v.  Miller,  25:  585,  118  N. 
W.  11,  122  N.  W.  82,  157  Mich.  279. 
Time  tables. 

855.  Upon  the  question  of  the  liability 
of  a  railroad  company  for  breach  of  a  con- 
tract by  its  ticket  agent  that  a  regular 
train  would  make  its  connections,  and  up- 
on the  question  of  the  credibility  of  the 
agent's  testimony  denying  the  contract,  a 
time-table  is  not  admissible  in  evidence, 
which  contains  the  statement  that  the  com- 
pany does  not  hold  itself  responsible  for 
failure  to  make  connections.  Hayes  v.  Wa- 
bash R.  Co.  31:229,  128  N.  W.  217,  163 
Mich.  174. 

Field  book  entries. 

856.  Field-book  entries  made  by  a  de- 
ceased surveyor  for  the  purpose  of  a  .survey 
on  which  he  was  professionally  employed 
are  admissible  in  evidence  as  having  been 
made  in  the  discharge  of  professional  duty. 
Mellor  v.  Walmesley,  4  B.  R.  C.  728,  [1905] 

2  Ch.  164.  Also  Reported  in  74  L.  J.  Ch. 
N.  S.  475,  53  Week.  Rep.  581,  93  L.  T.  N.  S. 
574,  21  Times  L.  R.  591. 

Maps;  plats. 

Photograph,  see  infra,  887-893. 

857.  An  objection  to  the  introduction  of 
a  plat  in  evidence  on  the  ground  that  it  is 
not  shown  to  be  correct  is  removed  by  sub- 
sequent testimony  of  the  surveyor  verify- 
ing it.  Greenleaf  v.  Bartlett,  14:  660,  60 
S.  E.  419,  146  N.  C.  495. 

858.  Upon  the  question  of  the  locality  in 
which  a  blast  is  alleged  to  have  been  fired 
in  violation  of  a  municipal  ordinance,  a 
map  is  admissible  in  evidence  in  connection 
with  testimony,  and  pencil  marks  made  by 
a  witness  upon  the  map  in  the  presence  of 
court  and  jury,  showing  the  location. 
Spokane  v.  Patterson,  8:  1104,  89  Pac.  402, 
46  Wash.  93. 

859.  A  map  made  by  a  surveyor,  proved 
to  be  correct,  of  the  premises  sued  for  in  an 
action  for  land,  and  of  other  tracts  adja- 
cent thereto,  is  admissible  to  go  to  the  jury 
to  illustrate  other  testimony  in  the  case, 
and  for  the  purpose  of  throwing  light  on 
the  location  of  the  land  in  controversy. 
Napier  v.  Little,  38:  91,  73  S.  E.  3,  137 
Ga.  242. 

860.  A  tithe  map  and  award,  produced 
from  proper  custody,  is  a  public  document, 
and  admissible  in  evidence  on  the  question 
whether  there  was  or  was  not  a  public  road 
across  two  fields  which  appear  in  the  map, 
such  matter  being  within  the  scope  and 
purview  of  the  authority  of  the  officials 
who  made  it.  Attorney  General  v.  Antro- 
bus,  4  B.  R.  C.  868,  [1905]  2  Ch.  188.  Also 
Reported  in  74  L.  J.  Ch.  N.  S.  599,  69  J.  P. 
141,  92  L.  T.  N.  S.  790,  21  Times  L.  R.  471, 

3  L.  G.  R.  1071. 
Ne'wspaper  articles. 

861.  A  newspaper  alleged  to  contain  a 
Digest   1-52  I..R.A.(N.S.) 


copy  of  the  copy  of  a  letter  stating  that  the 
writer  intended  to  kill  himself  by  drowning 
in  the  river,  and  furnished  to  the  newspaper 
by  an  attorney  to  whom  it  had  been  com- 
mitted as  attorney  by  the  wife  of  the  writer, 
to  whom  it  was  addressed,  is  inadmissible 
in  evidence.  Lindahl  v.  Supreme  Court  I. 
0.  of  F.  8:  916,  110  N.  W.  358,  100  Minn.  87. 
Market  quotations. 

862.  Generally-accepted  market  quota- 
tions in  a  newspaper  published  in  New 
York  are  admissible  in  evidence  to  show  the 
market  value  of  the  commodity  in  Balti- 
more, where  the  evidence  tends  to  show 
that  the  only  difference  in  the  two  prices  is 
the  difi'erence  in  the  freight  rate,  which  is 
shown.  Mount  Vernon  Brewing  Co.  v. 
Teschner,  16:  758,'69  Atl.  702,  108  Md.  158. 

863.  Newspaper  quotations  which  are 
shown  to  be  accepted  by  the  trade  is  trust- 
worthy and  reliable  statements  of  the 
market  prices  of  a  certain  article  are 
admissible  as  evidence  of  such  price,  with- 
out requiring  evidence  of  how  the  informa- 
tion published  is  obtained.  Mount  Vernon 
Brewing  Co.  v.  Teschner,  16:  758,  69  Atl. 
702,  108  Md.  158.  (Annotated) 
Entries  in  Bible. 

Prejudicial    error    as   to,    see   Appeal   and 

Errob,  1166. 
Entries  of  temperature. 

864.  Entries  of  temperature  in  a  dairy 
kept  by  an  individual  since  deceased,  not  a 
part  of  any  employment  or  duty,  are  not 
admissible  in  evidence  in  actions  between 
strangers.  Arnold  v.  Hussev,  51:  813,  88 
Atl.  724,  111  Me.  224.  '  (Annotated) 
Subpcenaes. 

865.  In  an  action  by  a  servant  against  the 
master  for  personal  injuries,  it  is  competent 
for  the  eriiployee  to  introduce  in  evidence 
subpcenaes  issued  out  of  the  trial  court  for 
certain  witnesses  who  were  present  when 
the  employee  was  hurt  but  who  did  not  ap- 
pear and  testify  at  the  trial.  Curtis  &  Gart- 
side  Co.  v.  Pribyl,  49:  471,  134  Pac.  71,  38 
Okla.  511. 

Papers  of  otker  persons  generally. 

866.  Receipts,  statements,  and  other  evi- 
dences of  liability  in  the  handwriting  of  the 
principal  are  admissible  evidence  against 
the  sureties,  and  prove  prima  facie  liability 
on  their  part.  Star  Grocer  Co.  v.  Bradford, 
39:  184,  74  S.  E.  509,  70  W.  Va.  496. 

867.  Upon  the  question  of  the  right  of  a 
tenant  to  remove  a  building  from  the  leased 
property,  a  paper  signed  by  the  trflstee  and 
beneficiary  of  the  lessor,  reciting  that  the 
building  was  erected  with  right  of  removal, 
is  not  admissible  in  evidence.  Searle  v. 
Roman  Catholic  Bishop,  25:  992,  89  N.  E. 
809,  203  Mass.  493. 

Insurance  cases. 

Admissibility  of  entries  by  insurance  agent 

since  deceased,  see  supra,  801. 
Memoranda  on  policy  register   of  deceased 

insurance  agent,  see  supra,  844. 
Prejudicial  error  in  excluding,  see  Appeal 

AND  Error,  1256. 

868.  Where  the  only  issue  raised  with 
reference  to  a  mutual  benefit  certificate  upon 
which  suit  is  brought  is  whether  or  not  a 


72 


1138 


EVIDENCE,  IV.  8— V, 


true  copy  is  attached  to  the  petition,  the 
certificate  is  admissible  in  evidence,  al- 
though not  accompanied  by  the  applica- 
tion and  by-laws.  Tackman  v.  Brotherhood 
of  A.  Y.  8:  974,  106  N.  VV.  350,  132  Iowa,  64. 

869.  A  receipt  signed  by  an  agent  of  an 
insurance  com|)any,  not  as  such  agent,  but 
as  agent  for  a  loan  association,  for  repay- 
ment to  him  of  money  advanced  to  pay 
premiums  for  insurance  on  property  in 
which  it  was  interested,  is  not  admissible,  in 
an  action  upon  an  insurance  policy,  upon 
the  question  of  a  waiver  of  a  forfeiture. 
Foreman  v.  German  Alliance  Ins.  Co.  3:  444, 
52  S.  E.  337,  104  Va.  694. 

870.  Upon  the  question  of  the  ownership 
of  insured  property  claimed  by  retail  mer- 
chants to  have  been  bought  by  them  from 
wholesalers  on  credit,  a  statement  of  the 
latter  to  their  banker,  showing  the  gross 
amount  of  accounts  receivable  owned  by 
them,  is  not  admissible  in  evidence,  where  it 
contains  nothing  to  contradict  the  positive 
testimony  of  insured  that  they  owned  the 
property,  while  the  amount  named  in  the 
statement  might  well  have  included  what 
insured  owed  on  the  property.  Clute  v. 
Clintonville  Mut.  F.  Ins.  Co.  32:  240,  129 
N.  W.  661,  144  Wis.  638. 

—  Proofs  of  deatli. 

871.  The  proofs  of  death  are  admissible  in 
evidence  in  an  action  upon  a  mutual -benefit 
certificate.  Beard  v.  Royal  .  Neighbors  of 
America,  19:  798,  99  Pac.  83,  53  Or.  102. 

872.  In  an  action  on  a  fraternal  benefit 
certificate,  proofs  of  death  furnished  by  the 
beneficiary  are  admissible  in  evidence  when 
offered  by  the  insurer.  Rasicot  v.  Royal 
Neighbors  of  America,  29:  433,  108  Pac. 
1048,  18  Idaho,  85. 

Street  car  transfers. 

873.  In  an  action  for  damages  for  the 
preparation  of  a  street-car  transfer  so  that 
it  could  not  be  used  on  the  connecting  car, 
in  consequence  of  which  the  passenger  was 
ejected  therefrom,  another  transfer  prepared 
at  the  same  time  is  admissible  in  evidence 
as  part  of  the  res  gestce,  and  to  meet  evi- 
dence of  the  employees  that  the  transfers 
were  cut  mechanically  so  as  always  to  be 
uniform.  Montgomery  Traction  Co.  v.  Fitz- 
patfick,  9:  851,  43  So.  136,  149  Ala.  511. 
Receipted  bills;  releases. 

874.  Upon  the  question  of  the  existence  of 
a  contract  between  a  jobber  and  a  consum- 
er, a  receipted  bill  signed  by  the  jobber  ia 
admissible  in  evidence.  Knickerbocker  Ice 
Co.  V.  Gardiner  Dairy  Co.  i6:  746,  69  Atl. 
405,  107  Md.  556. 

875.  It  ie  not  error  to  refuse  to  exclude 
from  evidence  a  release  of  liability  for  neg- 
ligently killing  a  person,  signed  by  his  ad- 
ministrator, as  such,  in  an  action  by  him 
to  recover  damages  for  the  killing  on  be- 
half of  the  estate,  on  the  theory  that  it  was 
signed  by  him  in  his  individual  capacity, 
because  it  binds  only  him,  his  heirs,  execu- 
tors, and  administrators,  since  the  question 
of  the  intent  is  for  the  jury.  Olston  v. 
Oregon  Water  Power  &  R.  Co.  20:  915,  96 
Pac.  1095,  97  Pac.  538,  52  Or.  343. 
Dieest  1-52  I..R.A.(N.S.) 


Agent's  reports.  •"  '      1  ''ir 

Report  of  corporate  agent,  see  supra,  IV.  1. 

876.  A  statement  of  expenditures  pre- 
pared at  the  instance  of  the  principal  by  an 
agent  who  has  just  returned  froi  1  a  foreign 
trip  not  objected  to  at  tlie  time,  is  admissi- 
ble in  evidence  in  an  action  by  the  agent  for 
the  salary  and  expenses  of  that  trip  as 
part  of  the  res  gestce,  and  cannot  be  re- 
jected as  a  self-serving  document.  Shepard 
v.  Minneapolis  Threshing  Mach.  Co.  18: 
239,  97  Pac.  57,  50  Wash.  242. 

8.  Paper  produced  on  notice. 

(See  same  heading  vn  Digest  L.R.A.  1-10.) 

t.  Putting  whole   xoriting   in   evidence. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

877.  A  severable  and  distinct  admission 
in  a  letter  tending  to  show  guilt  is  admis- 
sible in  evidence  against  the  writer,  al- 
though the  remainder  of  the  letter  is  lost 
or  destroyed.  State  v.  Corpening,  38:  11 30, 
73  S.  E.  214,  157  N.  C.  621. 

878.  A  plaintiff  may  introduce  the  re- 
maining parts  of  a  deposition  which  are 
relevant  and  competent,  when  defendant 
culls  out  and  introduces  certain  portions  of 
it.  Walter  v.  Sperry,  44:  28,  85  Atl.  739, 
86  Conn.  474. 

F.  Demonstrative      evidence;      articles 
and  things;  view  of  jury. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Review  of  discretion  as  to,  see  Appeal  and 

Erkor,  639. 
Reversible   error    in   admitting   clothing   of 

victim    in   homicide   case,    see   Appeal 

AND  Erboe,  1127,  1128. 
Right    of    court    to    order    disinterment    of 

corpse     for     evidential     purposes,     see 

Corpse,  16,  17. 
Of   result   of  comparison  between   shoes   of 

accused  and  foot  prints  as  invasion  of 

privilege    against    self-crimination,    see 

Criminal  Law,  107,  131. 

Exhibition  of  person  to  jnry. 

As  to  physical  examination  in  jury's  pres- 
ence, see  Discovery  and  Inspection, 
II. 

879.  In  an  action  to  recover  damages  for 
injuries  to  the  plaintiff's  leg,  necessitating 
its  amputation,  exhibition  of  the  naked 
remnant  is  permissible.  Ewing  v.  Lanark 
Fuel  Co.  29:487,  65  S.  E.  200,  65  W.  Va. 
726. 

880.  The  jury  cannot  determine  the  age  of 
the  purchaser  by  inspection  only  in  a  prose- 
cution for  illegally  selling  liquor  to  a  minor, 
where  at  no  time  during  the  introduction 
of  the  evidence  was  its  attention  called  to 
the  fact  that  the  prosecuting  witness  was 


EVIDENCE,  V. 


1139 


on  inspection   for  that   purpose.     Quinn  v. 
People,  40:  470,  117  Pac.  996,  51  Colo.  350. 

(Annotated) 

881.  The  exhibition,  by  one  seeking  dam- 
ages for  personal  injuries,  of  the  injured 
portion  of  his  person  to  the  jury,  waives  his 
right  to  object  to  the  court's  requiring  him 
to  re -exhibit  it  for  examination  by  defend- 
ant's witnesses.  Houston  &  T.  C.  R.  Co. 
V.  Anglin,  2:  386,  89  S.  W.  966,  99  Tex.  349. 

(Annotated) 
Skull  of  person  murdered. 

882.  Upon  a  trial  for  manslaughter,  a 
portion  of  the  skull  of  deceased  is  not  ad- 
missible in  evidence,  where  it  has  been  bur- 
ied for  a  long  time  and  the  evidence  does 
not  clearly  show  that  it  is  in  the  same 
condition  that  it  was  in  at  the  time  of 
burial.  Self  v.  State,  12:  238,  43  So.  945, 
90  Miss.  58.  (Annotated) 
Clothing. 

Photograph  of,  see  infra,  891. 

883.  That  a  shirt  worn  by  one  when  as- 
saulted by  another  with  a  razor  had  been 
washed  does  not  prevent  its  being  received 
in  evidence  in  a  prosecution  for  crim- 
inal assault,  to  show  the  location  and 
size  of  the  cuts.  State  v.  McGuire,  38: 
1045,  80  Atl.  761,  84  Conn.  470. 

884.  In  an  action  for  damages  for  an  as- 
sault and  battery,  a  hat  showing  a  break 
or  rent  at  a  place  which,  when  worn,  would 
be  over  or  near  the  point  of  injury  upon 
plaintiff's  head,  is  admissible  in  evidence, 
where  the  evidence  preliminary  to  its  in- 
troduction showed  that  it  was  worn  by 
plaintiff  at  the  time  of  the  alleged  assault, 
that  it  was  picked  up  immediately  after  the 
encounter  near  where  he  fell,  and  that  it 
was  presented  in  the  same  condition  as  when 
found,  the  contention  of  plaintiff  being  that 
the  break  could  not  have  been  made  by  de- 
fendant's fist,  and  that  therefore  some 
heavy  and  dangerous  instrument  was  used 
by  defendant  in  striking  the  blow  com- 
plained of.  Morris  v.  Miller,  20:  907,  119 
N.  W.  458,  83  Neb.  218. 

Footprints. 

Evidence    as    to    footprints    generally,    see 
infra,  1989. 

885.  The  constitutional  provision  against 
unreasonable  searches  and  seizures  does  not 
prevent  the  introduction  of  evidence  of  a 
comparison  of  footprints  with  shoes  forci- 
bly taken  from  one  accused  of  crime.  State 
V.  Fuller,  8:  762,  85  Pac.  369,  34  Mont.  12. 
Sample  of  hay. 

886.  Upon  the  question  whether  or  not 
good  merchantable  hay  had  been  delivered 
as  required  by  contract,  a  sample  of  the 
hay  is  not  admissible  in  evidence,  in  the 
absence  of  anything  to  show  that  the  jury 
would  know  what  good  merchantable  hay 
was,  or  that  the  sample  produced  was  a 
fair  sample  of  what  was  delivered.  Trego 
V.  Arave,  35:  1021,  116  Pac.  119,  20  Idaho, 
38.  (Annotated) 
Photographs. 

X-ray  photograph,  see  infra,  892,  893. 
Conclusiveness   of   photograph   as   evidence, 

see  infra,  2270. 
Digest  1-52  Ii.B.A.(N.S.) 


Review  on  appeal  of  refusal  to  receive,  see 
Appeal  and  Error,  516. 

887.  Photographs  of  a  railroad  wreck,  the 
accuracy  of  which  are  sworn  to  by  the  per- 
son who  took  them,  are  admissible  in  an 
action  for  personal  injuries  by  one  who  was 
hurt  in  it.  Louisville  &  N.  R.  Co.  v.  Brown, 
13:  1135,  106  S.  W.  795,  127  Ky.  732. 

888.  Photographs,  duly  verified,  are  ad- 
missible in  evidence  as  aids  to  the  jury  in 
arriving  at  an  understanding  of  the  evi- 
dence, or  of  the  situation  or  condition  or 
location  of  objects  or  premises,  material 
and  relevant  to  the  issues.  Higgs  v.  Min- 
neapolis, St.  P.  &  St.  Ste.  M,  R.  Co.  15:  1162, 
114  N.  W.  722,  16  N.  D.  446. 

889.  Photographs  and  samples  of  orna- 
mental work  in  the  office  of  an  architect  at 
the  time  a  contract  for  such  work  on  a 
building  was  signed  by  a  contractor  cannot 
be  considered  on  the  question  of  how  the 
parties  understood  the  contract,  where  the 
contractor  never  consented  that  the  photo- 
graphs and  samples  were  illustrative  of  the 
work  that  was  to  be  furnished,  and  they 
were  not  identified  by  the  contract  as  a 
part  of  it.  Snead  &  Co.  Iron  Works  v. 
Merchants'  Loan  &  T.  Co.  9:  1007,  80  N.  E. 
237,  225  111.  442.  (Annotated) 

890.  A  photographic  "copy,  shown  to  be  ac- 
curate, of  an  instrument  admissible  in  evi- 
dence, but  which  cannot  be  produced  be- 
cause in  custody  of  public  authorities,  is  ad- 
missible in  evidence.  Stitzel  v.  Miller,  34: 
1004,  95  N.  E.  53,  250  111.  72. 

891.  The  trial  court  has  discretion  to  ad- 
mit in  evidence  a  photograph  of  wearing 
apparel  taken  from  a  murdered  body,  al- 
though the  apparel  is  in  court  at  the  time 
of  the  trial.  Com.  v.  Tucker,  7:  1056,  76  N. 
E.  127,  189  Mass.  457. 

X-ray  picture. 

Requiring    submission    to    X-ray,    see    Dis- 
covery AND  Inspection,  III. 

892.  To  render  an  X-ray  photograph  ad- 
missible in  evidence,  its  accuracy  must  be 
established.  Ligon  v.  Allen,  51:  842,  162  S. 
W.  536,  157  Ky.  101.  (Annotated) 

893.  894.  That  a  sciagraph  of  an  injured 
hip  w^s  taken  five  years  after  the  injury 
does  not  render  it  inadmissible  in  evidence 
upon  the  question  of  the  character  of  the  in- 
jury. Bonnet  v.  Foote,  28:  136,  107  Pac. 
252,  47  Colo.  282. 

Experiments. 

Evidence  of  experiments,  see  infra,  XL  y. 

Review  of  discretion  as  to,  see  Appeai,  and 

Error,  605. 
See  also  supra,  835. 
Phonograph. 

895.  Upon  the  question  of  damages  to  be 
allowed  for  diminution  in  value  of  the  re- 
maining property  in  an  eminent  domain 
proceeding,  a  phonograph  may  be  operated 
before  the  jury  to  reproduce  sounds  claimed 
to  be  incident  to  the  conduct  of  the  peti- 
tioner's business,  where  there  is  evidence  to 
show  that  the  result  is  a  substantially  ac- 
curate and  trustworthy  reproduction  of  the 
sounds  actually  made.  Boyne  City,  G.  & 
A.  R.  Co.  v.  Anderson,  8:  306,  109  N.  W. 
429,  146  Mich.  328.  (Annotated) 


1140 


EVIDENCE,  VI.  a. 


View. 

Presumption    that    unauthorized    view    by 

jury  resulted  in  prejudice,  see  Appeal 

AND  Error,  441. 
Presumption  as  to  consent  to  view,  by  trial 

judge,  see  Appeal  and  Error,  469. 
Review  of   discretion   in   refusirfg  view   by 

jury,  see  Appeal  and  Error,  610. 
Prejudicial  error  in  admitting,  see  Appeal 

and  Error,  1475,  1526. 
New   trial   because   of  misconduct   of   jury 

sent   to   view    locus   in   quo,   see   New 

Trial,  42. 
Eight  of  jurors  to  utilize  knowledge  gained 

in  viewing  premises,  see  Trial,  7. 
See  also  Appeal  and  Error,  235. 

896.  Failure  to  appoint  a  person  to  show 
to  the  jury  the  place  they  are  sent  to  view 
is  unimportant  if  they  find  and  inspect  the 
right  place.  Emporia  v.  Juengling,  19:  223, 
96  Pac.  850,  78  Kan.  595. 

897.  An  additional  oath  need  not  be  ad- 
ministered to  the  officer  in  charge  of  the 
jury  sent  to  view  the  locus  in  quo,  unless 
required  by  statute.  Emporia  v.  Juengling, 
19:  223,  96  Pac.  850,  78  Kan.  595. 

898.  The  provisions  of  Cobbey's  Anno. 
(Neb.)  Stat.  1903,  §  1268,  permitting  the 
jury  to  view  property  which  is  the  subject 
of  litigation  whenever,  in  the  opinion  of  the 
court,  it  is  proper  for  them  to  do  so,  au- 
thorizes the  court,  in  its  discretion,  to  re- 
quire the  jury  to  view  any  such  property 
within  the  state.  Beck  v.  Staats,  16:  768, 
114  N.  W.  633,  80  Neb.  482. 

VI.  Parol  and  extrinsic  evidence  con- 
cerning writings. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Parol  evidence  as  best  or  secondary  evi- 
dence, see  supra.  III. 

Sufficiency  of  evidence  to  overcome  writing 
or  pleading,  see  infra,  XII.  g. 

Curing  error  in  admission  of,  see  Appeal 
AND  Error,  839. 

Prejudicial  error  in  admitting,  see  Appeal 
AND  L'bror,  1098. 

As  to  oral  contracts  generally,  see  Con- 
tracts, I.  e. 

Modification  of  contract  by  subsequent  parol 
agreement,  see  Contracts,  707-710. 

To  impeach  award  in  eminent  domain  pro- 
ceedings, see  Eminent  Domain,  169- 
171. 

Rule  against  taking  of  oral  evidence  in 
court  in  chancery  case,  see  Reference, 
4. 

Motion  to  strike  out,  see  Trial,  52. 

899.  The  reduction  of  one  feature  of  an 
entire  transaction  to  writing  in  part  exe- 
cution thereof  does  not  preclude  proof  by 
parol  of  the  other  features  and  the  enforce- 
ment of  the  intention  of  the  parties  as  evi- 
denced by  the  entire  transaction.  Smith 
V.  Pfluger,  2:  783,  105  N.  W.  476,  126  Wis. 
253. 

Digest  1-52  I<.R.A.(N.S.) 


900.  Parol  evidence  is  admissible  to  show 
that  a  written  contract  apparently  good  on 
its  face  is  a  mere  cover  for  an  illegal  trans- 
action. Manufacturers'  &  M.  Inspection  Bu- 
reau V.  Ever  wear  Hosiery  Co.  42:  847,  138 
N.  W.  624,  152  Wis.  73. 

901.  The  execution  of  a  power  of  attor- 
ney by  one  who  has  placed  securities  in 
another's  hands,  several  years  after  it  was 
done,  which  does  not  purport  to  embody  the 
original  agieement  as  to  tlieir  disposition, 
will  not  exclude  oral  evidence  of  what  the 
original  agreement  was,  on  the  theory  that 
it  tends  to  vary  the  terms  of  a  written 
instrument.  Mollison  v.  Rittgers,  29:  1179, 
118  N.  W.  512,  140  Iowa,  365. 

902.  The  rule  against  parol  testimony  to 
vary  written  contracts  does  not  apply  to 
usurious  agreements.  France  v.  Munro,  19: 
391,  115  N.  W.  577,  138  Iowa,  1. 

903.  While  evidence  dehors  the  record  is 
competent  to  explain  a  doubt  or  uncertainty 
in  the  case  of  a  latent  ambiguity  in  a  writ- 
ten contract,  it  cannot  be  introduced  in  a 
suit  at  law,  for  the  purpose  of  reconstruct- 
ing the  contract  in  suit  as  a  basis  for  the 
liability  alleged  in  the  declaration.  Kup- 
ferschmidt  v.  Agricultural  Ins.  Co.  (N.  J, 
Err.  &  App.)  34:503,  78  Atl.  225,  80  N.  J. 
L.  441. 

904.  Where  the  report  of  a  railroad  com- 
mission shows  affirmatively  what  facts  were 
before  it  upon  which  it  based  its  conclusion 
as  to  the  value  of  the  property  of  a  public 
utility  corporation,  it  is  not  competent  to 
resort  to  parol  evidence  in  regard  to  such 
facts.  Appleton  Waterworks  Co.  v.  Rail- 
road Commission,  47:  770,  142  N.  W.  476, 
154  Wis.  121. 

905.  Evidence  is  admissible  in  an  action 
by  a  tenant  of  an  apartment  to  hold  the 
landlord  liable  for  injury  to  his  property  by 
a  defect  in  the  heating  apparatus,  that  at 
the  time  of  the  leasing,  the  landlord's  agent 
told  him  that  the  apartment  was  heated  by 
steam,  where  the  lease  is  silent  upon  the 
subject  and  the  heating  apparatus  attached 
to  the  central  plant  was  in  place  when  the 
conversation  took  place.  O'Hanlon  v. 
Grubb,  37:  1213,  38  App.  D.  C.  251. 

906.  A  witness  may  properly  characterize 
a  notice  which  he  posted,  as  one  that  a 
field  of  corn  was  taken  on  execution  and 
was  in  his  possession,  when  the  purpose  is 
not  to  prove  the  contents  of  a  writing,  but 
to  show  what  the  witness  did, — especially 
when  it  fairly  appears  that  the  notice  ia 
lost.  National  Bank  v.  DufT,  16:  1047,  94 
Pac.  260,  77  Kan.  248. 

What   is    a  xirriting   precluding   parol 
evidence  as  to  its  terms. 

907.  Acceptance  of  a  proposed  contract 
contained  in  a  letter,  by  acting  under  it  for 
a  period  of  time,  is  sufficient,  without  for- 
mal signature  of  it,  to  exclude  parol  evi- 
dence of  its  terms.  Manufacturers'  &  M. 
Inspection  Bureau  v.  Everwear  Hosiery  Co. 
42:  847,  138  N.  W.  624,  152  Wis.  73. 

908.  An  unaccepted  written  statement  by 
one  party  to  an  oral  contract,  stating  his 
version  of  the  agreement,  does  not  reduce 
the    contract    to    writing    in    favor    of    the 


EVIDENCE,  VI.  a. 


1141 


other  person   so   as  to  preclude  the  writer 

from   giving   oral   evidence  of  the  terms  of 

the  contract.      Shubert  v.  Eosenberger,  45: 

1062,  204  Fed.  934,  123  C.  C.  A.  934. 

Deeds;  acknoTtrledgment. 

Parol  evidence  as  to  meaning  or  intention 
of  parties,  see  infra,  976-978. 

Evidence  as  to  consideration,  see  infra, 
1006-1015. 

Evidence  of  condition,  see  infra,  1023,  1024. 

Evidence  that  deed  was  intended  as  a  mort- 
gage, see  infra,  1030-1033.' 

Estoppel  by  deed  to  deny  giving  of  deed, 
see  Estoppel,  25. 

In  aid  of  defective  title,  see  Vendob  and 
Purchaser,  50. 

See  also  infra,  940,  941,  950. 

909.  On  a  bill  for  rescission  of  a  deed  of 
coal  lands,  parol  evidence  to  prove  expec- 
tancy of  a  particular  vein  or  a  representa- 
tion of  the  presence  thereof  in  the  land  is 
inadmissible.  Light  v.  Grant,  51:  792,  79 
S.  E.  1011,  73  W.  Va.  56, 

910.  In  a  suit  upon  a  bond,  evidence  is  ad- 
missible to  show  that  it  was  given  for 
money  advanced  to  the  obligor,  and  was  to 
be  accounted  for  as  an  advancement  in  the 
settlement  of  the  estate  of  the  obligee,  and 
was  not  to  be  repaid  unless  needed  to  pay 
debts  of  such  estate.  Kernodle  v.  Williams, 
34:  934,  69  S.  E.  431,  153  N.  C.  475. 

911.  Acceptance  of  a  deed  of  real  estate 
renders  inadmissible,  in  an  action  to  fore- 
close a  mortgage  thereon,  testimony  that 
the  defendant  grantee,  prior  to  the  accept- 
ance of  the  deed,  stated,  "that  he  would  not 
accept  a  deed  and  become  responsible  for 
the  encumbrance  under  any  circumstances." 
Herrin  v.  Abbe,  18:  907,  46  So.  183,  55  Fla. 
769. 

912.  The  testimony  of  the  parties  to  a 
certificate  of  acknowledgment  of  a  deed 
regular  on  its  face,  denying  both  the  execu- 
tion of  the  deed  and  the  acknowledgment, 
is  admissible  to  impeach  their  certificate, 
as  a  certificate  of  acknowledgment  is  only 
prima  facie  evidence  of  the  execution  of 
the  instrument.  People's  Gas  Co.  v.  Fletch- 
er, 41:  1 161,  105  Pac.  34,  81  Kan.  76. 
Insurance  contract. 

Evidence    as    to    intention    of    parties,    see 

infra,  983. 
Evidence  of  fraud,  see  infra,  1017. 

913.  The  principle  that  a  contract  in  writ- 
ing, free  from  doubt  and  ambiguity,  must 
be  permitted  to  speak  for  itself,  and  cannot, 
at  the  instance  of  one  of  the  parties,  be  al- 
tered or  contradicted  by  parol  evidence,  un- 
less in  case  of  fraud  or  mutual  mistake  of 
facts,  is  applicable  to  contracts  of  insurance. 
Oish  V.  Insurance  Co.  of  N.  A.  13:  826,  87 
Pac.  869,  16  Okla.  59. 

914.  A  contract  in  writing,  if  its  terms 
are  free  from  doubt  and  ambiguity,  must 
be  permitted  to  speak  for  itself,  and  can- 
not, by  the  courts,  at  the  instance  of  one 
of  the  parties,  be  altered  or  contradicted 
by  parol  evidence,  unless  in  case  of  fraud 
or  mutual  mistake  of  facts;  and  this  prin- 
ciple is  applicable  to  contracts  of  insur- 
ance. Deming  Invest.  Co.  v.  Shawnee  F. 
Ins.  Co.  4:  607,  83  Pac.  918,  16  Okla.  1. 
Digest  1-52  L.R.A.(N,S.) 


915.  In  an  action  on  an  insurance  policy 
evidence  is  not  admissible  that  the  agent 
stated  that  the  policy  would  include  a  risk 
which,  by  the  express  terms  of  the  policy, 
is  excluded.  Kelsey  v.  Continental  Casual- 
ty Co.  8:  1014,  108  isr.  W.  221,  131  Iowa,  207. 

916.  Under  a  statute  providing  that  an 
acknowledgment  on  the  policy,  of  the  re- 
ceipt of  premium,  is  conclusive  evidence  of 
its  payment  so  far  as  to  make  the  policy 
binding,  the  insurer  cannot  be  permitted  to 
show  that  the  actual  date  of  the  issuance  of 
a  policy  of  life  insurance  was  of  a  later  date 
than  the  date  recited  in  the  contract,  where 
the  policy  contains  an  acknowledgment  of 
the  receipt  of  the  premium.  Harrington  v. 
Mutual  L,  Ins.  Co.  34:  373,  131  N.  W.  246, 
21  N.  D.  447. 

917.  Parol  evidence  is  admissible  of  acts 
tending  to  show  an  estoppel  upon  an  insur- 
ance company  to  take  advantage  of  false 
answers  in  an  application,  notwithstanding 
provisions  in  the  policy  that  no  waiver  shall 
be  effective  unless  indorsed  in  writing  on 
the  policy  at  the  home  office  of  the  insurer. 
People's  F.  Ins.  Asso.  v.  Goyne,  16:  1180,  96 
S.  W.  365,  79  Ark.  315.  (Annotated) 

918.  One  sued  upon  a  duebill  given  for 
the  first  premium  of  a  life  insurance  policy 
cannot  be  permitted  to  show  by  parol  that 
it  did  not  embody  the  contract  of  the  par- 
ties, but  that,  instead  of  undertaking  to 
pay  the  amount  called  for,  defendant  had 
agreed  to  surrender  an  old  policy,  and  pay 
a  much  smaller  premium  than  that  designat- 
ed. Woodson  V.  Beck,  31:  235,  65  S.  E.  751, 
151    N.    C.    144.  (Annotated) 

919.  Parol  evidence  is  admissible  to  show 
that,  when  a  policy  of  insurance  was  issued 
on  a  building,  it  was  in  process  of  erection, 
and,  therefore,  could  not  be  occupied,  within 
the  meaning  of  a  clause  making  the  policy 
void  if  the  premises  became  vacant  by  re- 
moval of  the  occupant;  since  such  evidence 
does  not  contradict  the  terms  of  the  policy. 
Harris  v.  North  American  Ins,  Co.  4:  11 37, 
77  N.  E.  493,  190  Mass.  361, 

920.  An  insurance  policy  taken  in  the  in- 
dividual name  of  the  administrator  on  prop- 
erty in  his  possession  for  payment  of  debts 
cannot  by  parol  evidence  be  made  to  cover 
the  interest  of  the  estate  and  heirs  at  law. 
Stanley  v.  Firemen's  Ins.  Co.  42:  79,  84  Atl, 
601,  34  R,  I,  491,  (Annotated) 

921.  Evidence  that  agents  of  a  fire  insur- 
ance company  knew,  at  the  time  they  issued 
a  policy,  that  the  insured  had  no  fireproof 
safe,  awd  orally  informed  him  that  the  fire- 
proof-safe clause  in  the  policy  would  not 
be  insisted  upon  by  the  insurer,  is  inadmis- 
sible, in  an  action  brought  on  the  policy, 
to  show  a  waiver  of  its  terms,  where  the 
agents'  authority  in  that  regard  is  limited 
by  the  express  terms  of  the  policy  to  writ- 
ten waivers  indorsed  thereon.  Gish  v.  In- 
surance Co.  of  N.  A.  13:  826,  87  Pac.  869, 
16  Okla.  59. 

Bill  of  lading. 

922.  A  bill  of  lading  issued  by  a  common 
carrier,  and  signed  and  accepted  by  the 
shipper,  constitutes  a  contract  for  the  ship- 
ment of  merchandise  therein  described,  the 


1142 


EVIDENCE,  VI.  b,  c. 


terms  of  which  cannot  be  varied  by  parol 
testimony.  Whitnack  v.  Chicago,  B.  &  Q. 
R.  Co.  19:  loii,  118  N.  W.  67,  82  Neb.  464. 
Railroad  ticket. 

923.  The  actual  contract  between  a  rail- 
road company  and  a  passenger  may  be 
shown  by  parol,  notwithstanding  the  lan- 
guage of  the  ticket.  Hayes  v.  Wabash  R. 
Co.  31:  229,  128  N.  W.  217,  163  Mich.  174. 

924.  Upon  trial  of  an  action  against  a 
railroad  company  for  ejecting  a  passenger 
who  attempted  to  take  a  route  not  covered 
by  his  ticket,  evidence  is  admissible  as  to 
instructions  given  the  passenger  by  the 
ticket  agent,  not  as  varying  the  contract, 
but  as  tending  to  show  defendant's  inter- 
pretation of  it.  Mace  v.  Southern  R.  Co. 
24:  1178,  66  S.  E.  342,  151  N.  C.  404. 
Sale. 

As  to  warranty,  see  infra,  944,  945. 

Parol  evidence  as  to  intention  of  parties, 

see  infra,  966,  981,  982. 
Evidence  of  fraud,  see  infra,  1016. 
Evidence  as  to  condition,  see  infra,  1022. 
See  also  infra,  956. 

925.  A  memorandum  of  sale  of  personal 
property  delivered  by  an  agent  to  a  pur- 
chaser may  be  shown  by  parol  evidence  to 
have  been  delivered  subject  to  approval 
by  the  principal.  Gunzburger  v.  Rosenthal, 
26:  840,  75  Atl.  418,  226  Pa.  300. 
Wills. 

Evidence  as  to  testator's  meaning  or  inten- 
tion, see  infra,  969-975. 

Parol  evidence  of  mistake,  see  infra,  1020. 

Evidence  to  identify  legatees,  see  infra, 
1035,  1036. 

See  also  Reformation  of  Instruments,  1. 

926.  Parol  evidence  is  admissible  to  show 
the  original  contents  of  a  will  which  has 
been  altered  by  a  stranger.  Re  Diener, 
14:  259,  113  N.  W.  149,  79  Neb.  569. 

927.  Parol  evidence  is  admissible  to  sup- 
ply the  township,  county,  range,  and  state 
in  case  a  devise  of  lands  is  described  mere- 
ly as  parts  of  certain  sections.  Graves  v. 
Rose,  30:  303,  92  N.  E.  601,  246  111.  76. 

928.  Proof  that  testator  did  not  own  the 
land  described  in  his  will  as  certain  sub- 
divisions of  a  section  will  not  make  admis- 
Bible  parol  evidence  to  transfer  the  descrip- 
tion to  the  land  he  did  own,  by  changing 
the  letters  used  to  indicate  such  subdivi- 
sions. Graves  v.  Rose,  30:  303,  92  N.  E. 
601,  246  111.  76. 

Telegrams. 

929.  Oral  evidence  of  the  contents  of  a 
telegram  is  admissible  in  an  action  to  hold 
the  company  liable  for  refusal  to  transmit 
it.  Western  U.  Teleg.  Co.  v.  Lillard,  17:  836, 
110  S.  W.  1035,  86  Ark.  208. 

Date;  time. 

See  also  supra,  916. 

930.  Parol  evidence  that  a  written  instru- 
ment bearing  date  on  one  day  was  executed 
on  a  different  day  is  competent.  Erickson 
v.  Robertson,  37:  J133,  133  N.  W.  164,  116 
Minn.  90. 

931.  Parol  evidence  is  not  admissible  to 
vary  the  specific  terms  as  to  the  time  at 
which  an  obligation  becomes  due.  Bois6 
Digest  1~52  I<.R.A.(N.S.) 


Valley  Constr.  Co.  v.  Kroeger,  28:  968,  105 
Pac.    1070,   17   Idaho,   384. 

932.  Where  a  written  contract  for  the 
sale  of  goods  specifies  no  time  for  delivery, 
parol  evidence  tending  to  show  that  a  def- 
inite time  was  agreed  upon  is  not  admis- 
sible, since  where  no  time  for  delivery  is 
stated  in  the  contract  the  implication  arises 
that  delivery  will  be  made  within  a  rea- 
sonable time,  and  to  rebut  that  implica- 
tion by  parol  would  vary  the  contract. 
Cameron  Coal  &  M.  Co.  v.  Block,  31:  618, 
110  Pac.  720,  26  Okla.  615.  (Annotated) 

933.  When  the  records  of  the  legislature 
show  the  time  of  adjournment,  and  are 
clear  and  unambiguous  respecting  the  same, 
they  are  conclusive;  and  extraneous  evi- 
dence cannot  be  admitted  to  show  a  differ- 
ent date  of  adjournment.  Capito  v.  Top- 
ping, 22:  1089,  64  S.  E.  845,  65  W.  Va.  587. 

b.  Custom  or  usage. 

(See  also   same   heading   in  Digest   L.R.A. 
1-10.) 

934.  Proof  of  custom  is  not  admissible  to 
show  that  an  absolute  written  contract  to 
furnish  all  coal  needed  between  certain 
dates  was  not  to  be  binding  in  case  of  a 
strike.  Covington  v.  Kanawha  Coal  &  Coke 
Co.    3:  248,    89    S.    W.    1126,    121    Ky.    681. 

(Annotated) 

c.  Prior    and    collateral    parol    agree- 
ments. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Matters  as  to  commercial  paper,  see  infra, 

VI.  f. 
See  also  supra,  925;  infra,  2082. 

935.  In  the  absence  of  fraud  or  mutual 
mistake,  no  representation,  promise,  or 
agreement  made,  or  opinion  expressed,  in 
previous  parol  negotiations,  as  to  the 
terms  or  legal  effect  of  a  resulting  writ- 
ten contract,  can  be  permitted  to  prevail, 
either  in  law  or  in  equity,  over  the  plain 
provisions  and  proper  interjjretation  of  the 
contract.  Connecticut  F.  Ins.  Co.  v.  Bu- 
chanan, 4:  758,  141  Fed.  877,  73  C.  C.  A.  111. 

936.  The  theory  that  proof  of  prior  and 
conteitiporaneous  negotiations  and  repre- 
sentations, though  not  admissible  to  vary 
the  terms  or  legal  effect  of  the  written  con- 
tract, may  be  received  for  the  purpose  of 
raising  an  estoppel  in  pais  is  a  mere  eva- 
sion of  the  salutary  rule  which  protects 
written  contracts  from  impeachment  by 
loose  collateral  evidence,  and,  upon  princi- 
ple and  authority,  is  not  tenable.  Connec- 
ticut F.  Ins.  Co.  v.  Buchanan,  4:  758,  141 
Fed.  877,  73  C.  C.  A.  111. 

937.  A  materialman  may  show  a  parol 
agreement  between  a  conditional  vendor  and 
his  vendee  from  which  authority  to  pur- 
chase materia!  to  improve  the  property  may 
directly  appear  or  be  inferred,  and  is  not 
bound  by  the  terms  of  the  written  agree- 


EVIDENCE,  VI.  d,  e. 


1143 


ment  between  them.     Belnap  v.  Condon,  23:  I 
601,  97  Pac.  111.  34  Utah.  213.  ' 

938.  Evidence  of  an  oral  guaranty  is  ad- 
missible in  an  action  based  upon  a  contract 
contained  in  an  order  letter  and  a  bill  of 
the  parcels  delivered,  since  the  letter  and 
bill  are  not  of  such  a  formal  character  as  to 
indicate  that  all  previous  negotiations  were 
merged  in  them.  Leavitt  v.  The  Fiberloid 
Co.  15:  855,  82  N.  E.  682,  196  Mass.  440. 

939.  Parol  evidence  is  admissible  to  show 
an  agreement  that  a  building  erected  on 
leased  property  was  to  belong  to  the  lessee, 
in  an  action  by  the  tenant  to  assert  title. 
Searle  v.  Roman  Catholic  Bishop,  25:  992, 
89  N.  E.  809,  203  Mass.  493. 

940.  The  vendor  of  realty  may  show  by 
parol  evidence  that  crops  growing  thereon 
were  reserved,  although  no  such  reserva- 
tion was  made  in  the  deed  of  conveyance. 
Cooper  V.  Kennedy,  31:  761,  124  N.  W.  1131, 
86  Neb.  119. 

941.  Evidence  of  a  parol  agreement  made 
prior  to,  or  at  the  time  of,  the  execution  of 
a  deed,  to  the  effect  that  the  grantor  ex- 
cepted from  the  operation  of  the  convey- 
ance certain  buildings  standing  upon  the 
premises  conveyed,  is  inadmissible  in  an  ac- 
tion by  the  grantor  to  recover  the  value 
of  the  property,  which  was  destroyed  by 
fire  originating  iipon  the  property  of  an- 
other, from  which  it  was  subsequently  per- 
mitted to  escape.  Mahaflfey  v.  J.  L.  JRum- 
barger  Lumber  Co.  8:  1263,  56  S.  E.  893,  61 
W.   Va.   571. 

942.  In  an  action  for  breach  of  a  written 
contract  to  purchase  machinery,  evidence  is 
not  admissible  of  a  contemporaneous  oral 
agreement  that  work  should  not  be  begun 
on  its  construction  until  receipt  of  notice 
from  the  purchaser,  where  it  is  not  only  in- 
consistent with  the  written  contract,  but 
the  written  contract  expressly  provides  that 
all  pre-,  'ous  communications  between  the 
parties  are  annulled,  and  that  no  modifica- 
tion of  the  agreement  shall  be  binding  un- 
less in  writing.  Ridgeway  Dynamo  &  E. 
Co.  v.  Pennsylvania  Cement  Co.  18:  613,  70 
Atl.  557,  221  Pa.  160. 

943.  A  parol  agreement  made  before  the 
execution  of  a  lease,  which  requires  the 
payment  of  rent  quarterly  in  advance,  that 
the  lessor  will  take  a  bill  payable  at  three 
months  by  way  of  payment  of  each  quar- 
ter's rent  as  it  becomes  due,  is  not  a  col- 
lateral agreement  in  the  nature  of  a  condi- 
tion upon  which  the  lease  was  entered  into, 
and  therefore  is  not  admissible  in  evidence 
to  vary  the  terms  of  the  lease.  Henderson 
V.  Arthur,  3  B.  R.  C.  73,  [1907]  1  K.  B.  10. 
Also  Reported  in  76  L.  J.  K.  B.  N.  S.  22, 
95  L.  T.  N.  S.  772,  23  Times  L.  R.  60. 
Warranty- 

944.  Liability  for  breach  of  warranty  that 
the  apparatus  installed  will  produce  certain 
results  cannot  be  established  by  parol  under 
a  written  contract  to  furnish  certain  elec- 
trical apparatus,  to  be  first-class  and  of 
latest  type,  all  work  to  be  done  in  first- 
class  manner.  Electric  Storage  Battery  Co. 
V.  Waterloo  C.  F.  &  N.  R.  Co.  19:  1183,  IIG 
N.  W.  144,  138  Iowa,  369.  (Annotated) 

Dieest  1-52  I<.R.A.(X.S.) 


945.  Breach  of  a  parol  warranty  of  a 
chattel  may  be  proved  as  a  defense  to  an 
action  on  a  promissory  note  which  recites 
that  its  consideration  is  the  purchase  price 
of  such  chattel,  but  is  otherwise  silent  as  to 
terms,  representations,  and  warranties,  since 
such  recital  does  not  indicate  that  the 
terms  of  the  sale  have  been  integrated  in 
the  writing.  Pryor  v.  Ludden  &  B.  South- 
ern Music  House,  28:  267,  67  S.  E.  654,  134 
Ga.  288.  (Annotated) 
As  an  inducement. 

946.  An  undertaking  of  a  grantee  of  land 
to  assume  and  pay  a  mortgage  on  the  prop- 
erty may  be  shown  by  parol.  Senninger  v. 
Rowley,  18:  223,  116  N.  W.  695,  138  Iowa, 
617. 

947.  Although  a  contract  for  employment 
is  partly  in  writing,  evidence  is  admissible 
of  a  parol  stipulation  on  the  part  of  the  em- 
ployee not  to  engage  in  business  in  compe- 
tition with  his  employer.  Turner  v.  Ab- 
bott, 6:  892,  94  S.  W.  64,  116  Tenn.  718. 

948.  The  enforcement  of  a  promise  by 
those  engaged  in  subdividing  and  selling  a 
tract  of  land,  that  they  will  lay  pavements 
and  water  mains,  and  secure  the  extension 
of  street  car  service  to  the  tract,  is  not  pre- 
vented by  the  fact  that  it  was  not  incor- 
porated into  the  written  agreement  of  sale, 
and  its  enforcement  would  tend  to  vary  the 
written  contract.  Anderson  v.  American 
Suburban  Corp.  36:  896,  71  S.  E.  221,  155 
N.   C.   131.  (Annotated) 

949.  One  who,  after  lending  money  to  a 
corporation,  gives  his  note  for  corporate 
stock  to  the  president,  who  induces  him  to 
make  the  loan  and  take  the  stock  upon 
the  agreement  .that  he  will  not  be  called 
upon  to  pay  his  note  until  the  loan  is  re- 
paid by  the  corporation,  may  set  up  such 
agreement  as  a  defense  to  a  suit  on  the 
note  by  the  original  payee.  Gandy  v.  Weck- 
erly,  18:  434,  69  Atl.  858,  220  Pa.  285. 

(Annotated) 

d.  Subsequent  changes. 

(See  also   same  heading   in  Digest  L.R.A. 
1-10.) 

950.  Parol  evidence  is  admissible  to  show 
a  change  in  the  relation  of  parties  to  real 
estate  under  a  contract  for  its  transfer, 
in  a  proceeding  to  enforce  a  succession  tax 
against  it.  Re  Lamb,  18:  226,  117  N.  W. 
1118,  140  Iowa,  89. 

951.  Where  the  use  of  private  seals  has 
been  abolished,  parol  evidence  is  admissible 
to  show  ratification  by  a  principal  of  a  seal- 
ed contract  made  by  his  broker  in  his  own 
name  without  authority,  for  the  sale  of  a 
parcel  of  real  estate.  McLeod  v.  Morrison  & 
Eshelman,  38:  783,  120  Pac.  528,  66  Wash. 
683.  (Annotated) 

e.  Meaning;  intention;  explanation. 

(See   also   same   heading   in  Digest   L.R.A. 
1-70.) 

As  to  commercial  paper,  see  infra,  VI.  f. 


1144 


EVIDENCE,  VI.  e. 


Fraudulent  intent,  see  infra;  VI.  h. 

Evidence  of  condition,  see  infra,  VI.  i. 

Admissibility  of  circumstances  to  explain, 
see  infra,  1037. 

Prejudicial  error  as  to,  see  Appeal  and 
Ebhob,  1196. 

Merger  of  contract,  see  Contracts,  I.  g. 

Parol  evidence  of  prior  conduct  to  aid  in 
interpretation  of  contract,  see  Con- 
tracts, 364. 

See  also  supra,  899,  903,  919;   infra,  1361. 

952.  Parol  evidence  is  not  admissible  of 
the  understanding  of  the  parties  as  to  the 
meaning  of  a  clause  in  a  contract  the 
language  of  which  is  plain  and  unambig- 
uous. Hawley  v.  Kafitz,  3:  741,  83  Pac.  248, 
148  Cal.  393. 

953.  If  the  language  of  the  bond  of  a  pub- 
lic oflScial  is  not  sufficiently  specific  in  the 
designation  of  his  office  to  be  free  from  am- 
biguity, the  ambiguity  may  be  removed  by 
parol  evidence.  Kuhl  v.  Chamberlain,  21: 
766,  118  N.  W.  776,  140  Iowa,  546. 

954.  In  case  a  settlement  with  one  of  sev- 
eral joint  tort  feasors  is  in  writing,  oral 
evidence  is  competent  to  show  the  intention 
of  the  parties  thereto  in  an  action  against 
one  not  a  party  to  the  settlement.  Fitz- 
gerald V.  Union  Stock  Yards  Co.  33:  983, 
131  N.  W.  612,  89  Neb.  393.       (Annotated) 

955.  When  the  fact  that  the  purpose  of  a 
contract  is  to  effect  a  renunciation  of  mari- 
tal rights  and  obligations  is  not  obscure 
or  doubtful,  evidence  is  not  admissible  to 
contradict  this  intent.  Hill  v.  Hill,  12:  848, 
67  Atl.  406,  74  N.  H.  288. 

956.  As  against  the  tax  officers,  the  par- 
ties to  a  contract  which  on  its  face  purports 
to  be  a  sale  of  real  estate  may  testify  that 
it  was  intended  to  be  a  mere  option.  Re 
Shields,  10:  io6i,  111  N.  W.  963,  134  Iowa, 
559. 

957.  Parol  evidence  is  admissible  to  show 
the  pi-actical  interpretation  of  the  rights 
of  the  parties  under  a  contract  for  the  con- 
veyance of  real  estate  in  consideration  of 
support  to  be  furnis'-ed,  where  the  papers 
themselves  are  ambiguous,  in  a  proceeding 
to  assess  an  inheritance  tax  on  the  proper- 
ty. Re  Lamb,  18:  226,  117  N.  W.  1118,  140 
Iowa,  89. 

958.  Upon  the  question  of  the  interpreta- 
tion of  unambiguous  written  contracts  be- 
tween a  mortgagor  and  an  assignee  of  the 
mortgage,  evidence  of  transactions  between 
mortgagor  and  the  original  mortgagee  is  not 
admissible.  Bartlett  Estate  Co.  v.  Fair- 
haven  Land  Co.  15:  590,  94  Pac.  900,  49 
Wash.  58. 

959.  Evidence  of  a  conversation  between 
one  who  guaranteed  another's  account  and 
the  latter,  in  the  absence  of  the  one  to 
whom  the  guaranty  is  addressed,  is  not  ad- 
missible against  the  latter,  for  the  purpose 
of  showing  the  meaning  in  which  the  guar- 
antor intended  the  instrument  to  be  under- 
stood. Newcomb  v.  Kloeblen,  39:  724,  74 
Atl.  511,  77  N.  J.  L.  791. 

960.  Upon  the  question  of  the  meaning  of 
a  written  contract  to  drill  a  well  which 
shall  furnish  a  certain  amount  of  water  per 
Dieest  1-52  KR.A.(N.S.) 


month,  evidence  is  admissible  to  show  that 
the  contractor  knew  the  purpose  for  which 
the  water  was  to  be  used,  that  a  supply  of 
salt  water  was  readily  accessible,  and  that 
he  stated  that  he  would  furnish  a  quality  of 
water  equal  to  that  of  another  well  men- 
tioned. Smith  V.  Vose  &  Sons  Piano  Co.  9: 
966,  80  N.  E.  527,  194  Mass.  193. 

(Annotated) 

961.  One  who  has  taken  a  judgment  under 
a  stipulation  that  he  might  have  judgment 
for  a  specified  sum  in  full  satisfaction  and 
settlement  of  all  claims  made  in  a  petition 
which  purported  to  state  a  cause  of  action 
for  assault  may,  for  the  purpose  of  avoid- 
ing the  effect  of  the  payment  of  such  judg- 
ment as  a  release  of  a  judgment  obtained 
against  a  third  person  for  the  same  assault 
and  under  a  substantially  similar  petition, 
show  by  extrinsic  evidence  that  the  former 
judgment  was  not  rendered  on  the  theory  of 
compensation  for  an  injury  done  to  the 
plaintiff  therein,  that  the  defendant  in  such 
judgment  was  not  in  fact  liable;  and  that 
there  was  no  intent  to  satisfy  a  claim  for 
injuries,  but  that  the  sole  consideration  for 
the  stipulation  was  the  avoidance  of  the 
expense  of  a  trip  by  the  defendant  to  defend 
the  suit.  Ryan  v.  Becker,  14:  329,  111  N. 
W.  426,  136  Iowa,  273.  (Annotated) 
Of  particular  vrords. 

Opinion  evidence  as  to,  see  infra,  1136. 

962.  A  covenant  "to  pay"  in  a  written 
instrument  is  not  so  ambiguous  an  expres- 
sion as  to  permit  the  introduction  of  evi- 
dence of  an  antecedent  parol  agreement  that 
the  stipulated  payment  might  be  made  by 
giving  an  obligation.  Henderson  v.  Arthur, 
3  B.  R.  C.  73,  [1907]  1  K.  B.  10.  Also 
Reported  in  76  L.  J.  K.  B.  N.  S.  22,  95 
L.  T.  N.  S.  772,  23  Times  L.  R.  60. 

(Annotated) 

963.  In  an  action  by  a  sales  agent  to 
recover  compensation  under  a  contract 
which  contains  a  provision  for  reimburs- 
ing him  for  money  paid  unknown  persons 
as  bonuses,  evidence  is  admissible  that  the 
bonuses  were  used  to  influence  purchasing 
agents  in  order  to  secure  their  business. 
Smith  V.  David  B.  Crockett  Co.  39:  1148, 
82  Atl.  569,  85  Conn.  282. 

964.  The  commission  referred  to  in  a 
written  contract  permitting  a  real  estate 
broker  to  deduct  expenses  and  commission 
from  the  proceeds  of  the  sale  of  certain 
real  estate  may,  where  the  commission  re- 
ferred to  is  not  designated,  be  shown  by 
parol  to  mean  a  commission  earned  by  the 
sale  of  other  lands.  Kvamme  v.  Barthell, 
31:  207,   118   N.   W.  766,   144  Iowa,  418. 

965.  Where,  by  deeds  executed  the  same 
day,  land  is  granted  to  one  person,  "ex- 
cepting and  reserving  therefrom  a  strip  of 
land"  of  certain  width,  "to  be  used  as  a 
right  of  way,"  and  this  strip,  "being  the 
same  premises  as  described  in  the  other 
deed  as  a  right  of  way,"  is  granted  to  an- 
other, reserving  the  timber  thereon,  suf- 
ficient ambiguity  exists  as  to  grantor's  in- 
tention to  admit  extraneous  evidence  in  ex- 
planation. Pritchard  v.  Lewis,  i :  565,  104 
N.  W.  989,  125  Wis.  604. 


EVIDENCS,  VI.  e. 


1145 


966.  Parol  evidence  is  inadmissible  to 
show  that  the  parties  to  a  contract  for  the 
sale  of  a  stock  of  goods,  by  which  the  pur- 
chaser agreed  to  assume  and  pay  tlie  "out- 
standing and  open  account"  held  by  a  cer- 
tain creditor,  intended  to  include  in  such 
account  promissory  notes  held  by  the  cred- 
itor. Kramer  v.  Gardner,  22:  492,  116  N.  W. 
925,  104  Minn.  370. 

967.  Parol  evidence  of  declarations  and 
admissions  of  the  vendor  at  the  time  the 
bargain  of  sale  was  made  and  the  deed  ex- 
ecuted is  admissible  to  show  that  the  right 
to  use  water  from  a  drainage  ditch  was 
intended  to  pass  by  the  words  "privileges 
and  appurtenances,"  in  a  deed  of  real  es- 
tate,— especially  where  it  is  conceded  that 
the  right  to  water  from  another  ditch,  also 
on  the  land,  did  pass.  Fayter  v.  North, 
6:  410,  83  Pac.  742,  30  Utah,  156. 

968.  Parol  evidence  is  admissible  to  show 
that  the  term  "as  per  your  conversation," 
as  used  in  the  writing  "as  per  your  con- 
versation ...  to  supply  ice  at  the  rate 
of  thirty  cents  per  ton  (30),  we  herewith 
send  you  the  following  orders  to  be  shipped 
at  once,"  to  various  points  "via"  specified 
railroads,  none  of  which  reached  the  con- 
templated loading  place,  referred  to  the  fact 
that  such  price  for  the  ice  was  made  on  con- 
dition of  its  being  shipped  out  over  a  speci- 
fied railroad  whose  track  reached  the  load- 
ing place,  so  as  to  prevent  defendant  re- 
ceiving credit,  when  sued  for  the  contract 
price  of  the  ice,  for  the  difference  between 
what  the  freight  charges  would  have  been 
had  the  ice  been  shipped  as  requested  in  the 
Writing  and  what  they  were  over  the  road 
agreed  upon  in  the  conversation  by  which 
it  was  shipped.  Klueter  v.  Joseph  Schlitz 
Brewing  Co.  32:  383,  128  N.  W.  43,  143  Wis. 
347.  (Annotated) 
Wills. 

Admissibility  of  testator's  declarations  to 
show  intention,  see  infra,  1439-1443. 

See  also  supra,  926-928;  Reformation  of 
Instruments,  1;   Wills,  122,  399. 

969.  Parol  evidence  is  not  admissible  to 
show  that  testator  did  not  intend  an  instru- 
ment executed  in  pursuance  of  the  formal 
requirements  of  the  statute  of  wills  to  be 
a  will.  Re  Kennedy,  28:  417,  124  N.  W. 
616,  159  Mich.  548.  (Annotated) 

970.  It  is  not  competent  to  allow  the 
scrivener  who  writes  the  will,  to  testify 
what  the  intention  of  the  testator  was  as  to 
the  devise  of  certain  lands,  or  what  the 
scrivener's  intention  was  with  reference  to 
describing  the  boundaries  of  the  lands  de- 
vised. Napier  v.  Little,  38:  91,  73  S.  E.  3, 
137   Ga.  242.  (Annotated.) 

971.  Where  one  devises  a  portion  of  his 
estate  and  there  is  property  upon  which 
the  will  can  operate,  evidence  is  not  ad- 
missible for  the  purpose  of  enlarging  the 
devise  so  as  to  include  property  belonging 
to  another.  McDonald  v.  Shaw,  28:  657, 
121  S.  W.  935,  92  Ark.  15. 

972.  Parol  evidence  is  admissible  to  show 
that  testator  intended  to  bequeath  the  stock 
owned  by  him,  wh^re  he  attempts  to  give 
Digest  1-52  i:<.R.A.(N.S.) 


stock  in  a  bank  which  does  not  exist  under 
the  name  used  by  him  in  distributing  the 
stock.  Re  Snyder,  11:49,  66  Atl.  157,  217 
Pa.  71. 

973.  Parol  evidence  is  admissible  for  the 
purpose  of  showing  that  a  child  was  in- 
tentionally omitted  from  a  will,  under  a 
statute  providing  that  if  a  parent  omits  to 
provide  for  a  child  in  his  will,  such  child 
will  take  the  same  share  of  the  estate  which 
he  would  have  taken  had  such  parent  died 
intestate,  "unless  it  appears  that  such  omis- 
sion was  intentional."  Re  Motz, '51:  645, 
145  N.  W.  623,  125  Minn.  40.        (Annotated ) 

974.  Extraneous  evidence  is  admissible 
upon  the  question  whether  or  not  money 
paid  by  a  testator  to  his  niece  towards 
whom  he  does  not  stand  in  loco  parentis 
was  intended  as  a  satisfaction  of  a  legacy 
provided  for  her  in  his  will.  Johnson  v. 
IMcDowell,  38:  588,  134  N.  W.  419,  154  Iowa, 
38. 

975.  Where  the  boundaries  of  lands  de- 
vised by  a  will  are  fixed,  and  this  fact  is 
patent  upon  the  face  of  the  will  itself,  but 
the  description  of  the  land  comprised  with- 
in those  boundaries  is  ambiguous,  parol  tes- 
timony is  admissible  to  adjust  the  descrip- 
tion to  the  boundaries  so  fixed,  but  not 
for  the  purpose  of  changing  the  boundaries. 
Napier  v.  Little,  38:  91,  73  S.  E.  3,  137  Ga. 
242. 

As  to  construction  of  deeds  generally. 
Intent  as  to  consideration,  see  infra,  1010. 
Evidence  that  deed  was  intended  as  a  mort- 
gage, see  infra,  1030-1033. 

976.  Testimony  of  husband  and  wife  as 
to  the  intention  in  placing  the  title  to  real 
estate  in  her  name  is  competent  in  an  ac- 
tion to  quiet  the  husband's  title  against 
her  judgment  creditors.  Fulkerson  v.  Stiles, 
26:  181,  105  Pac.  966,  156  Cal.  703. 

977.  When  ambiguity  in  the  terms  of  a 
deed  renders  the  meaning  uncertain,  parol 
evidence  of  the  conditions  under  which  it 
was  executed  and  the  character  and  situa- 
tion of  the  property  may  be  considered,  in 
connection  with  its  terms,  in  arriving  at  tha 
intention  of  the  parties,  which  is  the  test  by 
which  to  determine  its  legal  effect.  Clayton 
V.  Gilmer  County  Court,  2:  598,  52  S.  E.  103, 
58  W.  Va.  253. 

That  d^ed  vras  intended  as  xvill. 

978.  An  unambiguous  deed  of  bargain  and 
sale  cannot  be  converted  into  a  will  by  parol 
evidence  tending  to  show  an  animus  testandi 
in  the  maker.  Noble  v.  Fickes,  13:  1203,  82 
N.  E.  950,  230  111.  594.  (Annotated) 
Intention  of  sureties  on  bond. 

979.  It  is  competent  for  the  sureties  up- 
on a  school  district  treasurer's  bond  to  tes-; 
tify  that,  in  signing  the  bond  and  leaving 
it  with  the  school  officer,  it  was  not  their 
intention  to  deliver  the  bond  without  the 
principal's  signature.  School  Dist.  No.  80 
V.  Lapping,  12:  1105,  110  N.  W.  849,  100 
Minn.   139. 

980.  Parol  evidence  is  not  admissible  to 
show  the  intention  of  the  sureties  on  the 
contractor's  bond,  under  a  contract  to  erect 
a  building  for  a  county  and  pay  all  claims 
for  labor  performed  and  materials  furnished, 


1146 


EVIDENCE,  VI.  f. 


and  give  bond  to  that  effect,  and  the  bond 
conditioned  that,  if  the  contractor  shall  pay 
uU  cluims  for  labor  performed  and  material 
furnished,  then  the  obligation  shall  be  void. 
United  States  Gypsum  Co.  v.  Gleason,  17: 
906,  116  N.  W.  238,  135  Wis.  539. 
Intention  of  parties  to  bill  of  sale. 
See  also  supra,  966. 

981.  The  intention  to  convey  a  gasolene 
engine  located  on  a  farm,  by  bill  of  sale  of 
the  personalty  rather  than  by  a  deed  of  the 
realty,  cannot  be  shown  by  parol,  where  such 
intention  does  not  appear  in  the  instrument, 
although  during  the  negotiation  a  list  of 
personalty  containing  the  engine  was  shown 
to  the  grantee  of  the  realty.  State  Security 
Bank  v.  Hoskins,  8:  376,  106  N.  W.  764, 
130  Iowa,  339. 

982.  The  purchaser  in  a  contract  for  the 
sale  of  machinery  which  shall  be  satisfac- 
tory to  him  cannot  be  shown  by  parol  to 
have  believed  that  the  seller  understood  by 
its  terms  that  the  machinery  would  be  satis- 
factory if  it  did  certain  work,  even  under  a 
statute  that,  when  the  terms  of  an  agree- 
ment have  been  intended  in  a  different  sense 
by  the  parties  to  it,  that  sense  is  to  prevail, 
against  either  party,  in  which  he  had  rea- 
son to  suppose  the  other  understood  it. 
Inman  Mfg.  Co.  v.  American  Cereal  Co. 
8:  1 140,  110  N.  W.  287,  133  Iowa,  71. 

( Annotated ) 
Intention  of  parties  to  insurance  con- 
tract. 

983.  A  policy  of  fire  insurance  made  pay- 
able to  a  first  mortgagee  in  the  standard 
mortgage  clause  cannot  be  altered  by  ex- 
trinsic testimony  in  a  suit  at  law  by  the 
second  mortgagee  to  recover  thereon,  for 
the  purpose  of  establishing  that  the  inten- 
tion of  the  parties  to  the  contract  was  to 
include  the  second  mortgagee  as  a  party 
to  the  contract.  Kupferschmidt  v.  Agri- 
cultural Ins.  Co.  (N.  J.  Err.  &  App.)  34: 
503,  78  Atl.  225,  80  N.  J.  L.  441. 

(Annotated) 
Ordinances. 

984.  Evidence  of  the  ordinary  construc- 
tion placed  upon  a  municipal  ordinance  pro- 
hibiting buildings  of  a  certain  character 
from  being  erected  within  prescribed  i'.re 
limits  is  admissible  to  aid  in  its  proper 
construction,  where  it  is  of  ambiguous  or 
doubtful  meaning.  Sylvania  v. '  Hilton, 
2:  483,  51  S.  E.  744,  123  Ga.  754. 

/.  As  to  commercial  paper. 

(See  also   same   heading  in  Digest  L.R.A. 
1-10.) 

Presumption  as  to,  see  supra,  448. 
Parol  evidence  as  to,  see  infra,  990,  991. 
Evidence  as  to  fraud,  see  infra,  1018. 
Evidence  of  condition,  see  infra,  1026. 
See  also  supra,  931,  949. 

985.  Parol  evidence  is  inadmissible  to  es- 
tablish an  oral  agreement  contemporaneous 
with  the  making  of  a  negotiable  instrum^mt, 
whereby  the  instrument  was  not  to  be  ne- 
Digest  1-52  Ii.R.A.(N.S.) 


gotiatcd.      Benton    v.   Sikyta,   24:  1057,    122 
N.  W.  61,  84  Neb.  808. 

986.  Parol  evidence  is  admissible  to  show 
that  a  promissory  note  which  was  signed 
and  delivered  was  not  to  take  effect  until 
the  payee  had  secured  a  loan  for  tlie  maker. 
Smith  V.  Dotterweich,  33:  892,  93  N.  E. 
985,  200  N.  Y.  299. 

987.  In  an  action  on  a  note  naming  a  cer- 
tain rate  of  interest,  parol  evidence  is  not 
admissible  to  the  effect  that  another  rate 
was  agreed  upon.  Cochran  v.  Zachery,  16: 
235,  115  N.  W.  486,  137  Iowa,  585. 

988.  Parol  evidence  is  not  admissible  to 
show  that  a  provision  in  a  note,  agreeing  to 
pay  the  attorneys  of  the  maker's  wife  the 
amount  named  in  the  instrument  upon  her 
obtaining  a  divorce,  was  intended  as  a  pro- 
vision of  alimony  for  her.  Pierce  v.  Cobb, 
44:  379.  77  S.  E.  350,  161  N.  C.  300. 

989.  Representations  made  prior  to,  or 
contemporaneous  with,  the  execution  of  a 
note,  complete  on  its  face  and  given  as  sub- 
scription to  aid  in  the  construction  of  a 
proposed  railroad,  are  inadmissible  to  con- 
tradict, change,  or  add  to  conditions  plain- 
ly incorporated  into  and  made  a  part  of 
the  note,  under  a  statute  providing  that  a 
contract  in  writing  supersedes  all  oral  ne- 
gotiations or  stipulations  concerning  its 
terms  and  subject-matter  which  preceded  or 
accompanied  the  execution  thereof.  Guthrie 
&  W.  R.  Co.  V.  Rhodes,  21:  490,  91  Pac. 
1119,  19  Okla.  21. 

Consideration. 
See  also  infra,  1005. 

990.  In  an  action  by  a  bona  fide  holder 
on  a  promissory  note,  evidence  of  conversa- 
tion with  persons  not  parties  to  the  action, 
but  who  were  parties  to  a  general  scheme 
in  the  course  of  which  the  note  in  suit  and 
others  were  given,  is  admissible  to  show  the 
consideration.  Exchange  Nat.  Bank  v.  Hen- 
derson, 51:  549,  77  S.  E.  36,  139  Ga.  260. 

991.  In  an  action  by  a  bona  fide  holder 
of  a  promissory  note  which  does  not  dis- 
close the  consideration  therefor  on  its  face, 
evidence  tending  to  show  that  the  consid- 
eration therefor  was  the  votes  and  political 
influence  of  the  payee,  is  admissible.  Ex- 
change Nat.  Bank  v.  Henderson,  51:  549,  77 
S.  E.  36,  139  Ga.  26. 

True  relation  of  parties. 
See  also  infra,  1000,  1187-1189. 

992.  In  an  action  between  original  par- 
ties to  a  negotiable  instrument,  oral  evi- 
dence is  admissible  to  prove  an  agreement 
between  or  among  them  different  from  that 
indicated  by  the  relative  positions  of  their 
signatures  on  the  paper.  Haupt  v.  Vint, 
34:  518,  70  S.  E.  702,  68  W.  Va.  657. 

993.  Where  the  indorsement  on  checks 
deposited  for  collection  is  unrestricted,  but 
there  is  an  agreement  that  the  indorsee  is 
in  fact  merely  an  agent  for  collection,  that 
fact  may  be  shown,  and,  if  the  agency  is 
a  naked  agency  to  collect,  the  indorser 
may  revoke  the  agency  and  make  a  settle- 
ment with  the  drawer  of  the  checks.  Citi- 
zens' State  Bank  v.  E.  A.  Tessman  &  Co. 
45:  606,  140  N.  W.  178,  121  Minn.  34. 

994.  Where  a  promissory  note,  made  pay- 


EVIDENCE,  VI.  g. 


1147 


able  to  one  who  is  alleged  to  be  principal, 
and  signed  by  one  who  is  alleged  to  be  an 
agent  of  tl%e  payee,  and  who  adds  the  ab- 
breviation "agt."  to  hi^  signature,  is  in- 
dorsed with  the  name  of  the  alleged  princi- 
pal, followed  by  the  name  of  the  alleged 
agent,  who  again  adds  to  his  signature  the 
abbreviation  "agt.,"  parol  evidence  is  ad- 
missible, as  between  a  bank  which  discount- 
ed the  note  and  the  agent,  to  show  that  it 
was  intended  as  the  obligation  of  the 
principal,  to  the  knowledge  of  the  bank. 
Clark  V.  Talbott,  44:  731,  77  S.  E.  523,  72 
W.  Va.  46. 

995.  An  insurance  company  whose  name 
does  not  appear  upon  a  promissory  note 
given  to  an  agent  thereof  in  payment  of  a 
premium  upon  a  policy  of  life  insurance 
cannot  be  charged  as  an  indorser  thereof  by 
parol    proof    that    the    agent,    the    nominal 

;  payee,  in  accepting  and  indorsing  the  note, 
•  fwas  acting  as   its   authorized  agent,  where 

nothing  upon  the  face  of  the  note  suggests 

the  existence  of  the  agency.     New  York  L. 

Ins.    Co.    V.    Martindale,    21:1045,   88    Pac. 

559,  75  Kan.   142.  (Annotated) 

Indorsements. 

See  also  supra,  993-995. 

996.  A  bank  which,  in  order  to  facilitate 
the  collection  of  a  customer's  note,  places  its 
unrestricted  indorsement  thereon,  may  ex- 
plain such  indorsement  by  parol  evidence  as 
against  a  purchaser  with  notice.  Johnston 
V.  Schnabaum,  17:  838,  109  S.  W.  1163,  86 
Ark.  82.  (Annotated) 

997.  Parol  evidence  is  not  admissible  to 
show  that  the  indorsement  of  notes  to  an 
individual  not  designated  as  the  cashier  of 
a  bank  was  such  a  transfer  as  to  vest  the 
legal  title  in  the  bank,  and  preclude  a  de- 
fense which  would  be  good  against  the 
payee.  First  Nat.  Bank  v.  McCullough, 
17:  1105,  93  Pac.  366,  50  Or.  508. 

998.  As  between  a  bank  holding  a  note 
and  its  immediate  indorser  in  blank,  parol 
evidence  is  admissible  to  show  that  he  in- 
dorsed as  its  agent  to  transfer  title  to  the 
note,  including  the  fact  that  he  sold  cer- 
tain property  to  the  bank  to  be  sold  to 
the  maker,  and  that  the  note  was  taken  in 
his  name  and  indorsed  to  the  bank  merely 
for  its  accommodation  in  the  transaction. 
First  Nat.  Bank  v.  Reinman,  28:  530,  125 
S.   W.  443,  93  Ark.  376.  (Annotated) 

999.  Parol  evidence  is  admissible  to  show 
that  the  words,  "without  recourse,"  written 
on  the  -Ijack  of  a  note  between  the  signatures 
of  the  payee  and  a  stranger,  were  intended 
to  qualify  the  payee's  indorsement  where 
the  statute  provides  that  a  qualified  in- 
dorsement may  be  made  by  adding  to  the 
indorsing  signature  the  words,  "without  re- 
course." Goolrick  v.  Wallace,  49:  789,  157 
S.  W.  920,  154  Ky.  596.  (Annotated) 

1000.  Parol  evidence  is  admissible  in  an  ac- 
tion by  the  drawer  of  a  bill  of  exchange 
payable  to  his  own  order,  against  a  stranger 
who  placed  his  name  on  the  back  of  the 
instrument  before  delivery,  and  above  which 
the  drawer's  indorsement  was  placed,  to 
show  that  he  intended  to  become  surety  for 
the  acceptor,  and  assume  liability  to  the 
Digest  1-52  L.R.A.(N.S.) 


drawer,  notwithstanding  the  negotiable-in- 
struments law  provides  that,  if  the  instru- 
ment is  payable  to  the  order  of  the  drawer, 
a  person  not  otherwise  a  party  to  the  in- 
strument, who  places  thereon  his  signature 
in  blank  before  deliver j(|  is  liable  to  all  per- 
sons subsequent  to  the  drawer,  since,  the 
drawer  being  in  legal  effect  an  indorser,  the 
parties  are  within  the  provisions  of  the  sec- 
tion of  the  statute  which  declares  that,  as 
between  indorsers,  parol  evidence  is  admissi- 
ble to  show  the  order  in  which  they  agreed 
to  be  liable.  Haddock,  Blanchard,  &  Co.  v. 
Haddock,  19:  136,  85  N.  E.  682,  192  N.  Y. 
499.  (Annotated) 

g.   Consideration;  or  value  of  subject- 
matter. 

(See  also   same   heading  in  Digest  L.R.A. 
I-IO.) 

As    to    commercial    paper,    see    supra,    990, 

991. 
Evidence  of  generally,  see  infra,  XI.  m. 

Contract  generally. 

See  also  supra,  961. 

1001.  Where  the  consideration  stated  in  a 
contract  consists  of  an  unambiguous,  spe- 
cific, and  direct  promise  to  do  certain 
things,  the  writing  is  conclusive,  and  can- 
not be  varied  by  extrinsic  evidence.  Kra- 
mer V.  Gardner,  22:  492,  116  N.  W.  925,  104 
Minn.  370. 

1002.  The  rule  permitting  the  true  con- 
sideration of  written  contracts  to  be  in- 
quired into  by  parol  evidence  does  not  ap- 
ply where  the  statement  in  the  contract  as 
to  the  consideration  is  more  than  a  mere 
acknowledgment  of  the  payment  of  money, 
and  is  of  a  contractual  nature.  Kramer  v. 
Gardner,  22:  492,  116  N.  W.  925,  104  Minn. 
370. 

1003.  Parol  evidence  is  admissible  to  ex- 
plain what  is  meant  by  the  term  "other 
consideration"  in  a  contract  whereby  a 
landowner  agrees  to  pay  a  bonus  to  a  rail- 
way company  in  consideration  of  $1  and 
other  consideration.  Bois6  Valley  Constr. 
Co.  V,  Kroeger,  28:  968,  105  Pac.  1070,  17 
Idaho,  384. 

1004.  Absence  of  consideration  for  an  op- 
tion to  purchase  real  estate  may  be  shown 
in  a  proceeding  to  enforce  specific  perform- 
ance of  the  contract  to  sell,  notwithstand- 
ing the  instrument  is  sealed.  Rude  v.  Levy, 
24:  91,  96  Pac.  560,  43  Colo.  482. 

1005.  Evidence  is  admissible  as  to  the  act- 
tual  consideration  for  a  check  delivered  to 
the  payee,  although  it  contradicts  a  memo- 
randum contemporaneously  signed  by  the 
maker.  Foxworthy  v.  Adams,  27:  308,  124 
S.  W.  381,  136  Ky.  403. 

Of  deed. 

See  also  supra,  805,  811. 

1006.  The  recital  of  a  consideration  in  a 
deed  is  open  to  modification  or  explanation 
by  parol.  Allen  v.  Rees,  8:  1137,  110  N.  W. 
583,  136  Iowa,  423. 

1007.  A  recital  in  a  deed  of  conveyance 
of  a  consideration  of  "one  dollar  and  otiier 
valuable   considerations,"   is   not   complete; 


1148 


EVIDENCE,  VI.  h. 


and  the  true  consi3eratiori  may  be  shown 
by  parol.  Herrin  v.  Abbe,  18:  907,  46  So. 
183,   55   Fla.   769. 

1008.  A  provision  in  a  deed  of  conveyance, 
that  the  land  is  ^nveyed  subject  to  all 
liens  and  mortga^s  standing  of  record 
against  it,  has  no  controlling  reference  to 
the  consideration  of  the  deed,  recited  there- 
in as  being  "one  dollar  and  other  valuable 
considerations;"  and  evidence  as  to  the  true 
consideration  does  not  vary  the  provision 
making  the  conveyance  subject  to  the  en- 
cumbrances. Herrin  v.  Abbe,  18:  907,  46 
So.  183,  55  Fla.  769. 

1009.  In  a  contest  between  heirs  of  the 
whole  blood  and  heirs  of  the  half  blood  of 
an  intestate,  oral  evidence  is  admissible  to 
prove  that  the  sole  consideration  for  a  deed 
to  the  ancestor  from  his  mother,  whereby 
ne  was  vested  with  title  to  the  tract  of  land 
in  controversy,  was  love  and  affection,  not- 
withstanding the  sole  recitation  in  the  deed 
of  a  consideration  is  a  substantial,  valuable 
consideration.  Harman  v.  Fisher,  39:  1-57, 
134  N.  W.  246,  90  Neb.  688. 

1010.  In  a  suit  by  administrators  of  one 
who  had  granted  property  to  his  heirs  for 
a  consideration,  which  the  deed  recited  to 
have  been  paid,  to  enforce  payment  of  the 
consideration,  on  the  allegation  that  it  was 
not  in  fact  paid,  parol  evidence  is  admis- 
sible to  show  that  the  recital  was  inserted 
merely  to  show  that  there  was  no  intention 
on  the  part  of  the  grantor  that  it  should 
be  paid.  Koogle  v.  Cline,  24:  413,  73  Atl. 
672,  110  Md.  587.  _  (Annotated) 

1011.  Parol  evidence  is  admissible  to  prove 
that  the  consideration  expressed  in  a  deed 
of  land  was  an  advancement,  as  the  con- 
sideration clause  of  a  deed  of  conveyance, 
although  conclusive  for  the  purpose  of  giv- 
ing effect  to  the  operation  of  the  deed,  is 
prima  facie  evidence  only  of  the  amount, 
kind,  and  receipt  of  the  consideration. 
Shehy  v.  Cunningham,  25:  1194,  90  N.  E. 
805,  81  Ohio  St.  289.  (Annotated) 

—  Lack  of  consideration. 

1012.  In  the  absence  of  fraud,  a  want  of 
consideration  cannot  be  shown  against  the 
recitals  of  consideration  for  the  purpose  of 
defeating  the  operative  words  of  a  deed. 
Strong  V.  Whybark,  12:  240,  102  S.  W.  968, 
204  Mo.  341. 

—  Additional  consideration. 

1013.  Parol  evidence  is  not  admissible  to 
show  that  the  true  consideration  for  a  deed, 
which  is  recited  to  be  a  sum  of  money,  was, 
in  addition  thereto,  a  contract  to  build  a 
pass  way  across  the  property  conveyed,  since 
the  effect  would  be  to  establish  the  reserva- 
tion of  an  easement  inconsistent  with  the 
terms  of  the  deed.  Trout  v.  Norfolk  &  W. 
R.  Co.  17:  702,  59  S.  E.  394,  107  Va.  576. 

(Annotated) 
1014.  In  an  action  to  recover  the  purchase 
price  of  land  conveyed  to  a  railroad  com-  j 
pany  for  a  right  of  way,  recovery  cannot  be 
had  for  breach  of  a  contract  to  establish 
across  it  a  pass  way  which  is  not  mentioned 
in  the  deed.  Trout  v.  Norfolk  &  W.  R.  Co. 
17:  702,  59  S.  E.  394,  107  Va.  576. 

(Annotated) 
Digest  1-52  I4.R.A.(N.S.) 


1015.  A  contemporaneous  agreement  that, 
as  part  of  the  consideration  of  a  deed  con- 
veying a  right  of  way  absolutely  and  un- 
conditionally to  a  railroad  company,  the 
grantor  should  have  a  permanent  right  to 
cross  the  land  conveyed,  and  that  the  com- 
pany should  erect  and  permanently  main- 
tain crossings  for  that  purpose,  cannot  be 
established  by  parol.  Louisville  &  N.  R. 
Co.  V.  Willbanks,  24:  374,  65  S.  E.  86,  133 
Ga.   15.  (Annotated) 

h.  Fraxid;  mistake;  omissions. 

(See  also   same   heading  in   Digest   L.R.A. 
1-70.) 

Fraud. 

See  also  infra,  1049. 

1016.  Parol  evidence  is  admissible  to  show 
that  one  was  induced  to  enter  into  a  written 
contract  to  purchase  goods,  by  false  and 
fraudulent  representations  as  to  their  qual- 
ity. American  Pure  Food  Co.  v.  Elliott, 
31:910,  66   S.  E.  451,   151   N.   C.   303. 

1017.  The  fact  that  an  entire  contract  of 
life  insurance  is  contained  in  the  policy 
and  application  does  not  preclude  the  in- 
surer from  showing  fraud  in  procuring  the 
contract.  Reagan  v.  Union  Mut.  L.  Ins.  Co. 
2:  821,  76  N.  E.  217.   189  Mass.  555. 

1018.  Breach  by  the  payee  of  an  agree- 
ment not  to  negotiate  a  promissory  note 
until  the  happening  of  a  certain  event  ia 
such  a  fraud  upon  the  maker  as  will  jus- 
tify the  admission  of  parol  evidence  of  the 
agreement  in  an  action  between  the  orig- 
inal parties  to  the  note  or  between  the 
maker  and  one  who  is  not  a  good-faith  hold- 
er. McKnight  v.  Parsons,  22:  718,  113  N. 
W.  858,  136  Iowa,  390. 

1019.  Parol  evidence  is  admissible  to  show 
that  a  writing  purporting  to  fix  compensa- 
tion for  collecting  a  debt  was  in  fact  made 
to  aid  the  collection  of  the  debt  by  conceal- 
ing the  creditor's  interest  in  the  recovery, 
and  that  the  collector  was  attempting  to 
use  the  instrument  for  the  dishonest  pur- 
pose of  retaining  an  amount  in  excess  of 
the  compensation  to  which  he  was  entitled. 
Lepley  v.  Andersen,  33:  836,  125  N.  W.  433, 
142  Wis.  668. 

Mistake. 

1020.  That  a  provision  in  a  will  locates 
land  devised  in  a  section  where  testator 
owned  no  land  will  not  admit  parol  -vidence 
of  a  mistake  in  description,  although  iie  in 
fact  owned  land  answering  the  description 
in  another  section,  of  which  he  d:d  not  dis- 
pose in  the  will.  Lomax  v.  Lomax,  6:  942, 
76  N.  E.  1076,  218  111.  629.  (Annotated) 

1021.  A  contractor  for  public  work  who 
seeks  cancelation  of  the  contract  because  of 
mutual  mistake  as  to  the  quantity  of  work 
to  be  done  may  show  that,  in  making  his  bid, 
he  acted  on  a  mistake  caused  by  an  erro- 
neous estimate  by  the  public's  engineer  of 
the  amount  of  work  to  be  done.  Long  v. 
Athol,  17:  96,  82  N.  E.  605,  196  Mass.  497. 


EVIDENCE,  VI.  i,  j. 


1149 


i.  Condition;  trust;  mortgage. 

(See  also   same   heading   in  Digest   L.B.A. 
1-10.) 

Condition. 

See  also  supra,  910,  985,  986. 

1022.  Parol  evidence  is  admissible  to  show 
that  a  written  contract  of  sale  was  not  to 
take  effect  until  the  purchaser  had  an  op- 
portunity to  inspect  the  goods  and  find 
them  satisfactory.  American  Sales  Book 
Co.  V.  Whitaker,  37:  91,  140  S.  W.  132,  100 
Ark.  360. 

1023.  A  deed  which  is  absolute  and  com- 
plete on  its  face,  and  which  has  been  de- 
livered to  the  grantee,  cannot  be  defeated 
by  parol  evidence  of  a  condition  of  delivery. 
Dorr  V.  Midelburg,  23:  987,  65  S.  E.  97,  65 
W.  Va.  778. 

1024.  A  deed  delivered  to  the  grantee  with 
the  intention  on  the  part  of  the  grantor 
that  it  shall  be  subject  to  a  future  condi- 
tion, but  with  no  express  provision  for  re- 
call by  the  grantor,  and  requiring  for  its 
validity  no  additional  act  on  the  part  of 
the  grantor  or  any  third  person,  cannot  be 
defeated  by  parol  proof  of  such  condition. 
Wipfler  V.  Wipfler,  16:  941,  116  N.  W.  544, 
153   Mich.   18.  (Annotated) 

1025.  A  sealed  release  of  a  debt  may  be 
shown  by  parol  evidence  to  have  been  de- 
livered on  condition  that  it  should  be  re- 
turned if  the  maker  was  not  forced  into 
bankruptcy,  so  as  to  destroy  its  effect  in 
an  action  upon  the  debt  in  case  the  con- 
dition happens.  Stiebel  v.  Grosberg,  36: 
1147,  95  N.  E.  692,  202  N.  Y.  266. 

(Annotated) 

1026.  Evidence  is  admissible  in  defense  of 
an  action  by  a  receiver  of  an  insolvent 
corporation  to  enforce  a  promissory  note 
executed  in  its  favor,  that  the  note  was  de- 
livered on  condition  that  stock  of  the  cor- 
poration should  be  procured  and  delivered 
to  the  maker  within  a  specified  time,  and 
that  the  condition  had  not  been  performed. 
Beach  v.  Nevins,  18:  288,  162  Fed.  129,  89 
C.  C.  A.  129.  (Annotated) 
Trust. 

See  also  infra,  1349. 

1027.  A  trust  foimded  on  an  express  prom- 
ise by  the  mother  of  one  who  conveys  real 
estate  to  her  to  avoid  a  community  inter- 
est therein,  to  reconvey  it  to  him,  cannot  be 
established  by  parol,  under  a  statute  pro- 
viding that  all  conveyances  of  any  interest 
in  real  estate,  and  all  contracts  creating  or 
evidencing  any  encumbrance  thereon,  shall 
be  by  deed.  Arnold  v.  Hall,  44:  349,  129 
Pac.  914,  72  Wash.  50. 

1028.  The  effect  of  an  absolute  deed  of 
church  property  by  its  trustees  to  a  stranger 
cannot  be  controlled  by  parol  evidence  that 
the  transfer  was  made  upon  the  understand- 
ing that  the  grantee  should  take  the  prop- 
erty in  trust  in  order  to  secure  a  revenue 
from  it  by  leasing  it  for  a  purpose  which 
the  members  of  the  church  would  not  sanc- 
tion. Lafayette  Street  Church  Soc.  v.  Nor- 
ton, 39:  906,  95  N.  E.  819,  202  N.  Y.  379. 
Digest  1-52  L.R.A.(N.S.) 


1029.  Where  an  apparently  absolute  legacy 
was  made^n  favor  of  several  persons,  upon 
the  promise  of  one  that  they  would  hold 
it  in  trust  for  others,  the  fact  that  the 
promise  was  made  on  behalf  of  all  may  be 
established  by  parol  evidence,  and  subse- 
quent declarations  of  either  of  the  legatees 
are  admissible  against  all.  Winder  v.  Scho- 
ley,  33:  995,  93  N.  E.  1098,  83  Ohio  St.  204, 
Mortgage. 

See  also  supra,  946,  958. 
—  That    deed   w^as   intended    as    mort- 
gage. 

1030.  In  the  absence  of  allegations  that  the 
execution  of  an  authentic  act  of  sale  of 
immovable  property  was  induced  by  error, 
misrepresentation,  or  fraud,  parol  evidence, 
to  show  that  a  contract  of  mortgage  was 
intended,  is  properly  excluded.  Breaux  v. 
Royer,  38:  982,  57  So.  164,  129  La.  894. 

1031.  Parol  evidence  is  admissible  to  show 
that  an  absolute  conveyance  was  intended 
as  a  mortgage.  Mahaffy  v.  Faris,  24:  840, 
122  N.  W.  934,  144  Iowa,  220. 

1032.  The  rule  that  a  written  contract 
cannot  be  varied  or  contradicted  by  parol 
is  not  violated  by  limiting  to  a  mere  mort- 
gage interest  the  right  of  one  to  whom  a 
conveyance  is  given  as  security,  where  pa- 
rol evidence  establishes  that  the  relation  of 
mortgagor  and  mortgagee  exists  between 
them.  Smith  v.  Pfluger,  2:  783,  105  N.  W\ 
476,  126  Wis.  253. 

1033.  Parol  evidence  is  admissible  g,s 
against  a  second  vendee,  even  in  the  absence 
of  a  charge  of  fraud,  to  show  that  the 
original  act,  which  purported  to  be  an  act 
of  sale  with  right  of  redemption,  was  in- 
tended by  the  parties  thereto  as  a  mortgage 
to  secure  a  specific  debt,  since  the  rule  ex- 
cluding parol  testimony  to  vary  a  written 
instrument  applies  only  to  the  language 
used  by  the  parties,  and  therefore  does  not 
forbid  an  inquiry  into  the  object  of  the  par- 
ties in  executing  and  receiving  the  instru- 
ment. Jolivette  v.  Chavis,  32:  1046,  52  So. 
99,  125  La.  923. 

j.  To  identify  mihject  or  persons. 

(See  also   same   heading   in  Digest  L.R.A. 
1-10.) 

Persons. 

1034.  Parol  evidence  is  admissible  to 
identify  the  true  owners  of  property  granted 
by  a  deed  in  which  a  partnership  is  named 
as  grantee.  Walker  v.  Miller,  x :  157,  52  S. 
E.  125,  139  N.  C.  448. 

1035.  Extrinsic  evidence  is  admissible  to 
identify  a  legatee  inadvertently  described  by 
an  erroneous  name  in  a  will.  Re  Paulson, 
5:  804,  107  N.  W.  484,  127  Wis.  612. 

1036.  The  legatee  in  a  will  may  be  shown 
by  extrinsic  evidence  to  be  another  than 
the  person  named  as  legatee,  although  the 
name  used  applied  to  an  existing  person. 
Siegley  v.  Simpson,  47:  514,  131  Pac.  479, 
73  Wash.  69.  (Annotated) 


1150 


EVIDENCE,  VI.  k— m. 


fc.  Circumstances. 


(See  also   same   heading   in  Digest   L.R.A. 
1-10.) 

See  also  supra,  977. 

1037.  An  ambiguity  in  a  written  instru- 
ment which  is  developed  by  applying  the 
pa])er  to  the  subject  dealt  with  may  be 
solved  by  the  circumstances  characterizing 
its  making.  Smith  v.  Pfluger,  2:  783,  105 
N.  W.  476,  126  Wis.  253. 

I.  Concerning  records. 

(See  also   same   heading   in  Digest  L.R.A. 
1-70.) 

Best  and  secondary  evidence  of,  see  supra, 
708-710. 

Of  public  board. 

1038.  Where  a  motion  was  made  and  car- 
ried at  an  annual  school  meeting,  authoriz- 
ing the  district  school  officials  to  sell  some 
piles  of  secondhand  lumber,  it  is  competent 
to  show  such  action  of  the  assembled  voters 
by  parol  evidence,  where  the  minutes  fail 
to  make  any  mention  of  the  same,  and  where 
such  minutes  show  on  their  face  that  they 
are  a  mere  abstract  or  synopsis  of  what  oc- 
curred at  the  meeting.  Gilmer  v.  School 
Dist.  No.  26,  50:  99,  136  Pac.  1086,  41  Okla. 
12.  (Annotated) 

1039.  Parol  evidence  is  not  admissible  to 
show  that  a  municipal  ordinance  is  passed 
by  a  yea  and  nay  vote  as  required  by 
charter,  if  the  charter  provides  that  the 
ordinance  shall  not  be  valid  unless  the  yeas 
and  nays  thereon  be  recorded  in  the  journal 
of  proceedings.  Spalding  v.  Lebanon,  49: 
387,  160  S.  W.  751,  156  Ky.  37. 

Of  legislative  jonrnals. 
See  Statutes,  85,  86. 
Judicial  record. 

1040.  Where  the  record  fails  to  show  the 
facts  as  to  an  agreement  upon  which  the 
dismissal  of  a  suit  is  based,  extrinsic  evi- 
dence may  be  resorted  to.  Turner  v.  Flem- 
ing, 45:  265,  130  Pac.  551,  37  Okla.  75. 

1041.  Though  the  record  of  a  judgment 
does  not  disclose  that  particular  property 
is  liable  for  its  payment,  that  fact  may  be 
established  by  extrinsic  evidence  on  appli- 
cation for  a  special  writ  of  execution  or 
other  proceeding,  when  the  right  to  resort 
to  the  land  is  called  in  question.  Gregory 
Co.  V.  Cale,  37:  156,  133  N.  W.  75,  115 
Minn.  508. 

m.  Character  of  party,  i   ,..;.; 

(See  also   same   heading  in  Digest  LJt.A. 
1-70.) 

Relation   of    parties   to   commercial   paper, 
see  supra,  992-995. 

1042.  A  corporation  organized  as  a  busi- 
ness corporation  to  conduct  a  hospital  can- 
not by  parol  evidence  show  itaelf  to  be  a 
Digest  1-52  I..R.A.(N.S.) 


charitable  organization.     Gitzhoffen  v.  Sis- 
ters   of   the    Holy    Cross    Hospital    Asso.    8: 
1 161,  88  Pac.  691,  32  Utah,  46. 
Agency. 

Of  parties  to  commercial  paper,  see  supra, 
993-995. 

1043.  It  may  be  shown  for  whom  one  mak- 
ing a  contract  as  managing  agent  of  a 
steamer  was  acting,  so  as  to  charge  the 
principal  with  liability  thereon.  Great 
Lakes  Towing  Co.  v.  Mills  Transportation 
Co.  22:  769,  155  Fed.  11,  83  C.  C.  A.  607. 

1044.  The  rule  excluding  parol  evidence  to 
contradict  or  vary  a  written  contract  does 
not  exclude  parol  evidence  to  show  that  a 
person  named  in  a  written  contract,  or 
signing  the  same,  was  the  agent  of  an  undis- 
closed principal.  Davidson  v.  Hurty,  39: 
324,  133  N.  W.  862,  116  Minn.  280. 

1045.  Specific  performance  of  a  contract  to 
purchase  real  estate,  duly  signed  by  an 
agent,  may  be  enforced  against  an  undis- 
closed principal  by  the  aid  of  parol  evi- 
dence, where  the  statute  provides  that  no 
action  shall  be  brought  to  charge  one  on 
a  contract  for  the  sale  of  lands  unless  the 
agreement  is  in  writing  and  signed  by  the 
party  to  be  charged,  or  some  other  person 
by  him  lawfully  authorized.  Walker  v. 
Hafer,  24:  315,  170  Fed.  37,  96  C.  C.  A.  311. 

(Annotated) 

1046.  Evidence  as  to  the  true  ownership 
of  real  estate,  a  contract  for  the  sale  of 
which  was  entered  into  by  a  real  estate 
company  as  agent  for  the  owner,  and  ap- 
proved by  the  owner's  husband,  the  wife's 
name  not  appearing  therein,  does  not  neces- 
sarily vary  or  contradict  the  terms  of  the 
contract,  since  the  husband's  approval  was 
consistent  with  his  wife's  ownership.  Da- 
vidson V.  Hurty,  39:  324,  133  N.  W.  862,  116 
Minn.  280. 

1047.  A  statute  which  prohibits  contracts 
for  the  sale  of  real  estate  between  husband 
and  wife  does  not  prevent  the  introduction 
of  parol  evidence  in  an  action  by  a  wife  to 
enforce  specific  performance  of  a  contract 
for  the  sale  of  her  property,  which  was 
negotiated  by  a  realty  company  and  ap- 
proved by  the  husband  in  his  own  name, 
to  prove  that  the  wife  was  the  owner  and 
that  her  husband  acted  with  her  authority. 
Davidson  v.  Hurty,  39:  324,  133  N.  W.  862, 
116  Minn.  280. 

1048.  In  an  action  by  a  principal  on  a 
written  contract  made  by  his  agent  in  his 
own  name,  evidence  may  properly  be  ad- 
mitted to  show  that  the  principal  was  the 
real  party  in  interest,  notwithstanding  the 
rule  of  law  that  an  agreement  reduced  to 
writing  may  not  be  contradicted  or  varied 
by  parol  evidence,  lankin  v.  Blaine  Coun- 
ty Bank,  18:  512,  93  Pac.  536,  20  Okla.  68. 

1049.  In  an  action  to  recover  from  an 
agent  to  purchase  real  estate,  the  secret 
profit  which  he  made  by  falsely  represent- 
ing that  he  was  compelled  to  pay  for  the 
property  the  price  paid  him,  parol  evidence 
is  admissible  on  the  ground  of  fraud,  to 
show  that  he  had,  in  fact,  been  acting  as 
agent,  and  promised  to  purchase  as  cheaply 
as  possible,   although   the  positive  written 


EVIDENCE,  VII.  a,  b. 


1151 


contract  to  pay  him  a  certain  sum  for  the 
property  as  vendor  is  thereby  contr»<licted. 
Lavalleur   v.   Hahn,  39:  24,   132  N.   W.   877, 
152  Iowa,  649. 
Suretyship. 

1050.  That  one  who  signed  a  contract  to 
purchase  a  machjne  was  a  surety  only  may 
be  shown  by  parol  for  the  purpose  of  show- 
ing that  he  was  not  a  necessary  party  to  a 
cross  petition  by  the  purchaser,  when  sued 
on  the  purchase-money  notes,  filed  to  bring 
in  and  hold  the  seller  liable  for  breach  of 
warranty  of  the  machine.  First  Nat.  Bank 
V.  Dutcher,  i :  142,  104  N.  W.  497,  128  Iowa, 
413. 

YII.  Opinions  and  conclusions, 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Dying  declarations  as  expression  of  opin- 
ion, see  infra,  1488. 

Weight  of  opinion  evidence,  see  infra,  2055- 
2057,  2114. 

Presumption  of  facts  to  save  error  in  re- 
fusing to  admit  opinion  evidence,  see 
Appeal  and  Error,  449. 

Review  of  discretion  as  to  competency  of 
witness,  see  Appeal  and  Error,  613- 
616. 

Discretion  as  to  method  of  testing  credi- 
bility of  expert  witness,  see  Appeal 
AND  Error,  620. 

Review  of  discretion  as  to  cross  examina- 
tion of  expert,  see  Appeal  and  Error, 
626. 

Prejudicial  error  as  to,  see  Appeal  and 
Error,  1102,  1111,  1170,  1185,  1218, 
1222-1224,    1259-,    1261. 

Right  of  physician  summoned  as  expert 
by  defendant  to  hear  plaintiff's  testi- 
mony, where  witnesses  have  been  put 
under  the  rule,  see  Witnesses,  2. 

1051.  A  question  is  not  always  to  be  ex- 
cluded because  it  calls  for  a  conclusion  of 
fact.  Schultz  V.  Frankfort  Marine  Acci. 
&  Plate  Glass  Ins.  Co.  43:  520,  139  N.  W. 
386,  151  Wis.  537. 

1052.  It  is  erroneous  to  permit  a  witness 
to  answer  a  question  calling  for  his  conclu- 
sion on  a  matter  within  the  province  of  the 
court  or  the  jury.  American  Soda  Foun- 
tain Co.  V.  Hogue,  17:  II 13,  116  N.  W.  339, 
17  N.  D.  375. 

1053.  A  witness  cannot  be  asked  for  hia 
opinion  upon  facts  and  conditions  which 
must  be  determined  by  the  jury,  and  which 
can  be  fully  placed  before  them.  Indianap- 
olis Traction  &  T.  Co.  v.  Kidd,  7:  143,  79  N. 
E.  347,  167  Ind.  402. 

1054.  A  question  to  a  witness,  which  calls 
for  his  opinion  on  the  precise  issue  of  fact 
which  the  jury  is  sworn  to  determine  from 
the  evidence,  is  incompetent.  Fowler  v.  Dela- 
plain,  21:  100,  87  N.  E.  260,  79  Ohio  St. 
279. 

1055.  If  data  supplied  by  a  witness  can 
be  placed  before  the  jurv  in  such  a  way 
Digest  1-52  L.R.A.(N.S.) 


that  they  may  draw  the  inference,  as  well 
as  the  witness,  it  is  superfluous  to  add  by 
way  of  testimony  the  inference  which  the 
jury  may  well  draw  for  themselves.  Auld 
V.  Southern  R.  Co.  37:  518,  71  S.  E.  426, 
136  Ga.  266. 

1056.  One  who  is  shown  to  have  sufficient 
knowledge  of  a  subject  to  be  competent  to 
testify  thereon  as  an  expert  may  be  per- 
mitted so  to  do,  although  not  shown  to  be 
liighly  qualified  to  speak  upon  the  subject. 
Gates  V.  Com.  44:  1047,  69  S.  E.  520,  111 
Va.  837. 

1057.  An  expert  may  base  an  opinion  upon 
facts  stated  and  the  testimony  of  a  single 
witness,  which  he  is  to  assume  to  be  true. 
Duthey  v.  State,  10:  1032,  111  N.  W.  222, 
131    Wis.    178. 

1058.  A  question,  "Did  you,  or  not,  sell  a 
person  goods  at  a  certain  time?"  is  not  im- 
proper as  calling  for  a  mere  conclusion. 
Walter  v.  Sperry,  44:  28,  85  Atl.  739,  86 
Conn.  474. 

1059.  The  opinions  of  actual  observers  are 
admissible  when  drawn  from  facts  which  it 
is  manifestly  impossible  to  present  to  the 
jury  with  the  same  force  and  clearness  as 
they  appeared  to  such  observers.  Kunst 
V.  Grafton,  26:  1201,  67  S.  E.  74,  67  W.  Va. 
20. 

1060.  In  a  contest  for  the  guardianship  of 
a  child  of  tender  years  between  the  appli- 
cant, the  maternal  grandfather,  and  the 
caveator,  the  paternal  grandfather,  testi- 
mony that  the  applicant  and  his  wife  "are 
proper  parties  to  raise  and  bring  up  a  fe- 
male grandchild"  is  inadmissible  as  calling 
for  a  conclusion  of  the  witness.  Churchill 
v.  Jackson,  49:  875,   64   S.  E.  691,   132   Ga. 


6.  Hypothetical   questions. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Presumption  that  jury  was  impressed  with 
truth  of  opinion  of  witness  upon  which 
hypothetical  questions  were  founded, 
see  Appeal  and  Error,  457. 

Review  as  to,  on  appeal,  see  Appeal  and 
Error,  457,  512. 

Review  of  discretion  as  to,  see  Appeal  and 
Error,  618. 

What  necessary  to  make  available  failure 
to  supply  missing  elements  in,  see  Ap- 
peal AND  Error,  777. 

Prejudicial  error  in  excluding,  see  Appeal 
AND  Error,   1266. 

1061.  A  hypothetical  question  based  on 
facts  which  the  evidence  would  justify  the 
jury  in  finding  may  be  submitted  to  a  wit- 
ness. Pisford  V.  Norfolk  Southern  R.  Co. 
44:  865,  75  S.  E.  860,  160  N.  C.  93. 

1062.  Counsel  who  call  a  witness  to  testi- 
fy within  the  field  of  opinion  evidence  may 
frame  his  question  upon  such  hypothesis 
as  he  thinks  is  reasonably  warranted  by 
the  evidence,  aiming  to  reasonably  cover 
an  entire  situation,  so  warranted,  subject 
to    the   opinion   of   the    court   as    to    com- 


1152 


EVIDENCE,  VII.  c,  d. 


petency.     Oborn   v.   State,   31 :  966,    126  N.  | 
W.  737,  143  Wis.  249. 

1063.  Questions  to  expert  witnesses  should  | 
be  stated  hypotlietically,  and  not  be  in  the 
form  of  a  recital  of  actual  facts.     Shaugh- 
nessy   v.   Holt,   21:  826,   86   N.   E.   256,   236 
111.  485. 

1064.  Hypothetical  questions  to  expert 
witnesses  cannot  be  predicated  upon  the 
opinion  of  witnesses  as  to  the  possible  cause 
of  an  explosion  in  a  starch  factory.  Kearn- 
er  V.  Charles  S.  Tanner  Co.  29:  537,  76  Atl. 
833,  31  R.   I.  203.  (Annotated) 

1065.  A  hypothetical  question  as  to  the 
value  of  services  rendered  in  superintending 
the  construction  of  a  building  is  not  errone- 
ous because  it  includes  getting  out  plans  as 
an  item,  although  the  employee  is  shown  not 
to  be  an  architect,  where  it  appears  that  he 
joined  in  the  consultation  about  plans,  and 
saw  that  they  were  prepared.  Davidson  v. 
Laughlin.  5:  579,  71  Pac.  345,  138  Cal.  320. 

1066.  A  hypothetical  question  should  be 
predicated  upon  the  testimony.  Root  v. 
Kansas  City  S.  R.  Co.  6:  '212,  92  S.  W.  621, 
195  Mo.  348.  . 

1067.  One  submitting  hypothetical  ques- 
tions to  an  expert  witness  may  select  such 
portions  of  the  evidence  as  he  pleases,  and 
need  not  base  his  question  upon  the  whole 
evidence.  Arkansas  M.  R.  Co.  v.  Pearson, 
34:  317,  135  S.  W.  917,  98  Ark.  399.« 

1068.  A  hypothetical  question  to  an  expert 
witness  is  erroneous  which  assumes  facts 
contrary  to  the  evidence,  or  which  omits 
material  facts  in  evidence.  Baltimore  & 
O.  R.  Co.  V.  Dever,  26:  712,  75  Atl.  352,  112 
Md.  296. 

1069.  An  objection  to  a  hypothetical  ques- 
tion that  it  was  based  upon  only  a  part  of 
the  evidence  which  the  witness  heard,  and 
that  there  were  other  parts  of  the  testi- 
mony which  he  had  not  heard,  is  not  well 
taken,  where  the  objecting  party  secures 
the  exclusion  for  immateriality  of  the  offer 
to  read  the  testimony  the  witness  has  not 
heard;  since,  even  if  the  evidence  was  ma- 
terial, the  party  objecting  to  the  reading 
of  it  is  in  no  position  to  take  advantage  of 
the  error  into  which  he  led  the  court.  Smart 
V.  Kansas  City,  14:  565,  105  S.  W.  709,  208 
Mo.  162. 

1070.  A  hypothetical  question,  which  con- 
tains facts  that  are  proved  or  claimed  to  be 
proved  by  either  party,  may  be  put  to  an 
expert  witness  against  their  will,  but  will 
opinion  upon  such  facts,  and  by  so  doing 
such  expert  witness  does  not  usurp  the 
province  of  the  jury,  as  the  jury  is  not 
compelled  to  accept  the  opinions  of  such 
expert  witness  against  their  will,  but  will 
weigh  such  expert  opinions  as  other  evi- 
dence is  weighed  by  them.  Jones  v.  Cald- 
well, 48:  119,   116  Pac.   110,  20  Idaho,  5. 

1071.  Hypothetical  questions  to  expert 
witnesses  on  a  trial  for  homicide  need  not 
cover  all  the  undisputed  facts  proven,  since 
the  opposite  party  may  if  he  desires  protect 
himself  by  including  all  such  facts  in  other 
hypothetical  questions  propounded  to  the 
same  witnesses  on  cross-examination.  State 
Digest  1-52  KR.A.(N.S.) 


v.  Angelina,  51:877,  80   S.   E.   141,  73  W. 
Va.  146. 

c.  Cause  and   effect. 

(See   also   same   heading   in   Digest   L.R.A. 

1-10.) 

Hypothetical  question  as  to,  see  supra,  1064. 

Cause  of  physical  condition,  see  infra, 
1084-1091. 

Cause  of  death,  see  infra,  1092. 

Prejudicial  error  in  exclusion  of,  see  Ap- 
peal AND  Ebbob,   1259. 

1072.  One  who  had  witnessed  the  treat- 
ment of  an  arm  injured  by  another's  negli- 
gence, and  had  observed  the  visible  efTocts 
thereof,  may  state,  in  an  action  to  recover 
for  its  injury,  what  effect  the  treatment 
had.  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v. 
Hadley,  16:  527,  82  N.  E.  1025,  170  Ind.  204. 

1073.  Mining  engineers  may  give  their 
opinion  in  an  action  to  recover  damages  for 
injury  to  a  well  by  blasting  on  neighboring 
property  as  to  the  cause  ©f  the  disappear- 
ance of  the  water  in  the  well,  based  upon 
assumed  facts  which  the  evidence  tends  to 
establish.  Patrick  v.  Smith,  48:  740,  134 
Pac.  1076,  75  Wash.  407. 

Injuries  to  property. 

1074.  A  witness  with  twenty  years'  experi- 
ence in  the  business  of  handling,  buying, 
and  selling  fruits,  who  professes  to  know 
from  given  data  the  cause  of  decay  in  a 
shipment  of  peaches,  may  qualify  as  an 
expert.  Alabama  G.  S.  R.  Co.  v.  McKen- 
zie,  45:  18,  77  S.  E.  647,  139  Ga.  410. 

1075.  Upon  the  question  of  the  liability  of 
an  insurance  company  upon  a  policy  con- 
taining an  exemption  in  case  of  the  fall 
of  a  building  except  as  a  result  of  the  fire, 
a  witness  cannot  be  permitted  to  give  his 
opinion  as  to  whether  or  not  the  building 
fell  as  the  result  of  the  fire.  Davis  v.  Con- 
necticut F.  Ins.  Co.  32:  604,  112  Pac.  549, 
158  Cal.  766. 

d.  Physical    conditions;    medical    testi- 
mony; intoxication. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

As  to  sanity  or  capacity,  see  infra,  VII.  e. 

Physical  condition. 

Evidence  as  to  appearance,  see  infra,  VII. 

1. 
Intoxicated  condition,  see  infra,  1093-1095. 

1076.  A  nonexpert  familiar  with  the  facts 
may  express  the  opinion  that,  on  the  day 
when  a  deed  was  signed  by  a  sick  person, 
he  was  so  ill  as  to  be  "beyond  asking  him 
anything,  and  in  a  condition  to  know  noth- 
ing really."  Atwood  v.  Atwood,  37:  591, 
79  Atl.  &9,  84  Conn.  169. 

1077.  One  who  has  testified  as  to  the  con- 
dition of  an  injured  arm  at  a  certain  time 
may  state  whether  or  not  it  is  better  or 
worse  at  the  time  of  trial,  in  an  action  to 
recover   damages    for   its    negligent    injury, 


EVIDENCE,  VII.  d. 


1153 


•where  the  question  is  whether  the  injury 
is  permanent  or  curable.  Cleveland,  C.  C. 
■&  St.  L.  R.  Co.  V.  Hadley,  i6:  527,  82  N.  E. 
1025,  170  Ind.  204. 

1078.  A  physician,  while  testifying  as  an 
«xpert,  is  not  permitted  to  testify  to  his 
conclusions  of  the  permanency  of  an  in- 
jury to  his  patient,  based  partially  upon  the 
history  of  the  injury  detailed  to  him  by  the 
patient  or  other  person,  and  partially  upon 
his  own  examination.  Federal  Betterment 
Co.  V.  Reeves,  4:  460,  84  Pac.  560,  73  Kan. 
107. 

1079.  One  stating  that  she  has  had  experi- 
ence, and  knows  the  difference  between  full- 
term  and  premature  children,  may  testify 
that  a  birth  was  premature.  Bessemer 
Coal,  Iron,  &  Land  Co.  v.  Doak,  12:  389,  44 
So.  627,  152  Ala.  166. 

Medical  testimony  generally. 

Admissibility  of  statements  made  to  ex- 
amining physician  attempting  to  quali- 
fy as  expert,  see  infra,  1345,  1352. 

1080.  Medical  experts  may,  in  testifying, 
refer  to  medical  writers  and  state  in  sub- 
stance the  result  of  their  conclusions.  Fi- 
delity &  C.  Co.  V.  Meyer,  44:  493,  152  S.  W. 
995,  106  Ark.  91. 

1081.  A  physician  attending  one  injured  by 
another's  negligence  may  state  as  a  witness 
his  opinion  as  to  the  time  of  ultimate  re- 
covery, based  upon  his  observation  of  the 
case.  Simone  v.  Rhode  Island  Co.  9:  740,  66 
Atl.  202,  28  R.  I.  186. 

1082.  In  an  action  to  recover  damages  for 
alleged  malpractice  in  the  amputation  of  a 
leg,  testimony  by  a  physician  that  he  would 
never  perform  such  an  operation  while  the 
patient  was  in  a  condition  of  shock  is  in- 
competent. Staloch  V.  Holm,  g:  712,  111  N. 
W.  264,  100  Minn.  276. 

1083.  A  physician  who  has  testified  as  an 
expert  in  a  murder  case  may  be  permitted  to 
state  that  lie  was  so  confident  of  his  opin- 
ion as  to  believe  that,  if  an  autopsy  could 
have  been  had  earlier,  it  would  still  more 
positively  have  confirmed  his  finding.  Com. 
V.  Snell,  3:  1019,  75  N.  E.  75,  189  Mass.  12. 
Cause  of  physical  condition. 

1084.  A  physician  who  has  qualified  as  an 
expert  may  give  his  opinion  concerning  the 
cause  of  a  person's  physical  condition,  where 
that  opinion  is  based  upon  a  hypothetical 
question  fairly  describing  such  condition 
and  reflecting  the  testimony  before  the  jury 
upon  that  point.  Hilnier  v.  Western  Trav- 
elers Acci.  Asso.  27:  319,  125  N.  W.  535, 
86  Neb.  285. 

1085.  A  physician  who  ha?  attended  a 
person  injured  by  another's  alleged  negli- 
gence may,  in  an  action  to  hold  the  latter 
liable  for  the  injury,  testify  as  to  what 
might  have  been  the  cause  of  headache 
from  which  the  injured  person  suffers. 
Strever  v.  Woodard,  46:644,  141  N.  W.  931, 
160  Iowa,  332. 

1086.  An  expert  cannot,  in  an  action  to 
hold  a  carrier  liable  for  injury  to  a  pas- 
senger allesred  to  have  been  caused  by  a 
sudden  jerk  of  the  car,  due  to  negligent 
handling,  state  in  response  to  a  hypothet- , 
ical  question  that  the  injury  was  due  to  the 
Digest  1-52  L.R.A.(N.S.) 


impact  of  the  cars,  since  that  is  the  very 
question  which  the  jury  must  answer. 
Sever  v.  Minneapolis  &  St.  L.  R.  Co.  44: 
1200,  137  N.  W.  937,  156  Iowa,  664. 

1087.  That  a  witness  to  the  fact  of  the  tend- 
ency of  the  movements  of  machine  tenders 
to  become  automatic,  to  their  danger,  gained 
his  knowledge  from  talking  with  shop  fore- 
men, does  not  render  the  evidence  incom- 
petent in  an  action  brought  to  hold  an  em- 
ployer liable  for  injuries  due  to  his  failure 
to  warn  an  employee  of  the  danger.  Kacz- 
marek  v.  Gender,  P.  &  F.  Co.  44:  779,  134 
N.  W.  348,  148  Wis.  46. 

1088.  Upon  the  question  whether  or  not  an 
employer  is  negligent  in  failing  to  warn 
an  employee  of  the  danger  of  injury  from 
automatic  action  when  working  about  a 
machine,  a  physician  who  has  made  a  spe- 
cial study  of  the  brain  and  nervous  system 
may  testify  that  the  continuous  operation 
of  foot  and  hand  in  a  certain  order  tends  to 
produce  an  involuntary  sequence  of  mus- 
cular activities  which  would  become  auto- 
matic and  proceed  without  express  brain 
action  or  will  power.  Kaczmarek  v.  Gender, 
P.  &  F.  Co.  44:  779,  134  N.  W.  348,  148  Wis. 
46. 

1089.  An  expert  in  an  action  for  personal 
injuries  cannot  bo  asked  if  the  injury  might 
have  been  caused  by  a  crowbar  thrown  by 
coming  in  contact  v'ith  a  swiftly  moving 
object  such  as  a  train,  since  his  opinion  is 
limited  to  the  cause  of  the  injury,  and  r  ;t 
to  the  cause  of  the  throwing  of  the  bar. 
Dunn  V.  Chicago,  R.  I.  &  P.  R.  Co.  6:  452, 
107  N.  W.  616,  130  Iowa,  580. 

1090.  A  witness  cannot  give  his  opinion  as 
to  the  cause  of  the  fall  of  one  upon  the 
deck  of  a  vessel  to  his  injury.  Pratt  v. 
North  German  Lloyd  S.  S.  Co.  33:  532,  184 
Fed.  303,  106  C.  C.  A.  445. 

1091.  Where  the  amputation  of  plaintiff's 
leg  was  alleged  by  her  to  have  been  caused 
by  an  injury  received  from  a  fall,  and  by 
the  defendant  to  have  been  made  necessary 
by  tuberculosis  of  the  knee,  it  is  error  to 
permit  an  expert  to  state  that  "the  injury 
precipitated  the  amputation,"  as  the  in- 
quiry should  be  limited  to  whether  the  fall 
was  a  sufficient  cause  to  produce  tlie  con- 
dition in  plaintiff's  knee  necessitating  am- 
putation, the  question  which  of  the  two 
causes  was  responsible  for  the  amputation 
being  for  the  jury.  Smart  v.  Kansas  City, 
14:  565,  105  S.  W.  709,  208  Mo.  162. 
Cause  of  death. 

1092.  Upon  a  prosecution  for  homicide,  an 
expert  witness  properly  qualified  may,  upon 
a  given  statement  of  the  condition  of  the 
deceased  immediately  prior  to  her  death  and 
upon  facts  revealed  to  the  witness  by  a  post 
mortem  examination,  state  his  opinion  as 
to  the  cause  of  death,  and  it  is  not  necessary 
that  he  be  confined  to  an  opinion  as  to  what 
could  or  might  have  been  the  cause  of  death. 
State  v.  Buck,  42:  854,  127  Pac.  631,  88  Kan. 
114. 
Intoxication;  temperateness. 

1093.  A  nonexpert  may  give  his  opinion  as  ' 
73 


1154 


EVIDENCE,  Vn.  e. 


to   another's   intoxication.     Com.    v.   Eyler, 
II :  639,  66  Atl.  746,  217  Pa.  512. 

(Annotated) 

1094.  Upon  the  question  of  one's  capacity 
to  make  a  contract,  evidence  is  admissible 
that  "he  acted  drunk."  Kuhlman  v.  Wie- 
ben,  2:  666,   105  N.  W.  445,   129  Iowa,   188. 

1095.  Upon  the  question  whether  or  not  a 
representation  by  an  applicant  for  insur- 
ance that  he  was  temperate  in  the  use  of  in- 
toxicating liquors  was  false,  witnesses  may, 
after  stating  the  basis  of  their  information, 
state  whether  he  was  temperate  or  intem- 
perate. Taylor  v.  Security  Life  &  Annuity 
Co.  15:  583,  69  S.  E.  139,  145  N.  C.  383. 

(Annotated) 

e.  Sanity;  capacity;  ability;  character. 

(See  also   same  heading  in  Digest  L.R.A. 
1-10.) 

Instructions  as  to  weight  to  be  given  to, 
see  Tbial,   950. 

1096.  A  father  may  testify  as  to  the  abil- 
ity of  his  daughter  in  the  profession  of 
elocution,  in  an  action  by  her  to  recover 
damages  for  personal  injuries.  Cleveland, 
C.  C.  &  St.  L.  R.  Co.  V.  Hadley,  16:  527,  82 
N.  E.  1025,  170  Ind.  204. 

Sanity  and  mental  capacity  generally. 
See  also  supra,  1094. 

1097.  A  nonexpert  will  be  allowed  to  ex- 
press an  opinion  upon  an  issue  of  sanity 
only  after  he  has  testified  to  acts,  conver- 
sations, or  conduct  which  to  some  extent 
indicate  sanity.  Auld  v.  Cathro,  32:  71, 
128  N.  W.  1025,  20  N.  D.  461. 

1098.  The  opinion  of  a  nonexpert  witness 
concerning  the  mental  conditio:!  of  a  liti- 
gant with  whom  he  has  been  acquainted  for 
many  years,  when  formed  upon  facts  within 
the  personal  knowledge  of  the  witness,  and 
sworn  to  by  him  before  the  jury,  is  admis- 
sible in  an  action  wherein  such  condition  is 
a  material  subject  of  inquiry.  Hilmer  v. 
Western  Travelers  Acci.  Asso.  27:  319,  125 
N.  W.  535,  86  Neb.  285. 

1099.  It  is  error  to  exclude  the  opinion  of 
a  nonexpert  witness  as  to  the  mental  con- 
dition of  one  whose  sanity  is  in  issue 
where  the  opinion  is  based  upon  a  fairly 
intimate  acquaintance  with  the  subject  of 
the  inquiry  for  several  years.  State  v. 
Rumble,  25:  376,  105  Pac.  1,  81  Kan.  16. 

1100.  It  is  error  to  exclude  the  opinion 
of  a  nonexpert  witness  as  to  the  mental 
condition  of  one  whose  sanity  is  in  Issue 
upon  the  sole  ground  that  a  number  of  in- 
stances of  peculiar  and  unusual  conduct 
on  the  part  of  the  subject  of  the  inquiry 
to  which  the  witness  has  testified,  do  not 
of  themselves  justify  an  inference  of  in- 
sanity. State  v.  Rumble,  25:  376,  105  Pac. 
1,  81   Kan.   16. 

1101.  A  nonexpert  witness  may,  after  stat- 
ing the  facts  of  his  knowledge  of,  and  ac- 
quaintance with,  a  person,  give  an  opinion 
as  to  his  sanity,  without  stating  the  facts 
on  which  it  is  based ;  the  weight  of  the  testi- 
mony depending  upon  the  importance  of  the 
Digest  1-52  L.R.A.(N.S.) 


I  particulars    stated.      Atkins    v.    State,    13: 
I  1031,  105  S.  W.  353,  119  Tenn.  458. 

1102.  Witnesses  may  express  their  opinions 
as  to  whether  or  not  one  making  an  as- 
signment of  an  insurance  policy  was  capable 
of  transacting  business  at  and  prior  to  tlie 
time  when  the  assignment  was  made. 
Searles  v.  Northwestern  Mut.  L.  Ins.  Co. 
29:  405,   126  N.   W.   801,  148   Iowa,  65. 

1103.  An  illiterate  father  is  competent  to 
testify  in  an  action  by  his  minor  son,  who 
has  grown  up  in  the  father's  home,  to  re- 
cover damages  for  permanent  personal  in- 
juries, as  to  the  son's  incapacity  to  com- 
prehend danger,  notwithstanding  the  giving 
by  him  of  a  wrong  reason  for  his  estimate. 
Ewing  V.  Lanark  Fuel  Co.  29:  487,  65  S. 
E.  200,  65  W.  Va.  726. 

1104.  It  is  error  to  permit  a  jailer  to  ex- 
press an  opinion  as  to  the  sanity  of  a  pris- 
oner, which  is  based  in  part,  at  least,  on 
what  he  has  observed  in  others  committed 
to  his  care  as  too  dangerously  insane  to  be 
at  large.  Duthey  v.  State,  10:  1032,  111 
N.  W.  222,  131  Wis.   178. 

Capacity  to  execute  deed. 
See  also  supra,  1076. 

1105.  Capacity  to  make  a  deed  is  a  mixed 
question  of  law  and  fact  for  the  jury  to 
determine  on  proper  evidence  and  instruc- 
tions, and  not  for  witnesses  to  decide;  and 
therefore  it  is  not  competent  for  expert  wit- 
nesses to  give  an  opinion  as  to  whether  such 
persons  had  sufficient  mental  capacity  to 
make  the  deed  in  controversy.  Coblentz  v. 
Putifer,  42:  298,  125  Pac.  30,  87  Kan.  719. 

1106.  A  witness  may  state  that  a  person 
who  signed  a  deed  while  ill  was  not  capable 
of  doing  business  or  making  any  contract 
or  agreement,  as  an  opinion  as  to  general 
mental  condition  and  the  degree  of  mental 
incapacity.  Atwood  v.  Atwood,  37:  591,  79 
Atl.  59,  84  Conn.  169. 
Testamentary  capacity. 
Competency  of  physician  to  testify  as  to, 

see  infra,  1282,  1290,  1294. 
Declarations  as  to  sanity,  see  infra,  1365. 
See   also   infra.   1290,    1294. 

1107.  Upon  the  trial  of  an  issue  as  to  the 
testamentary  capacity  of  the  maker  of  a 
will,  a  nonexpert  witness  can  state  all  the 
facts  he  knows  in  relation  to  the  testator, 
bearing  on  the  state  of  his  mind  and  the 
nature  of  his  acts,  and  may  give  his  opinion, 
based  on  such  facts,  as  to  the  condition  of 
the  testator's  mind.  Slaughter  v.  Heath, 
27:  I,  57  S.  E.  69,  127  Ga.  747. 

1108.  Upon  the  trial  of  an  issue  as  to  the 
testamentary  capacity  of  the  maker  of  a 
will,  the  opinion  of  a  nonexpert  witness  as 
to  whether  the  testator  had  a  decided  and 
rational  desire  when  he  made  the  will,  or 
whether  his  desires  were  like  the  ravings  of 
a  madman  or  the  pratings  of  an  idiot,  or  a 
childish  whim,  is  inadmissible.  Slaughter  v. 
Heath,  27:  1,  57  S.  E.  69.  127  ..a.  747. 

1109.  One  who  has  testified  to  the  physical 
weakness  of  a  testator  on  the  day  he  exe- 
cuted his  will  cannot  give  his  opinion  as  to 
his  mental  capacity,  based  on  such  testi- 
monv.  Speer  v.  Speer,  27:  294,  123  N.  W. 
176, '146  Iowa,  6. 


EVIDENCE,  VII.  f. 


1155 


1110.  Testimony  tliat  a  testator  could  not, 
on  the  day  his  will  was  executed,  indicate 
that  he  could  understand  what  witness  said 
to  him,  is  properly  excluded  from  the  jury 
as  mere  inference.  Speer  v.  Speer,  27:  294, 
123  N.  W.  176,  146  Iowa,  6. 

1111.  An  opinion  that  a  testator  was  not 
easily  influenced  is  not  admissible  upon  the 
trial  of  an  issue  as  to  his  testamentary  ca- 
pacity, unless  the  facts  upon  which  such 
opinion  was  based  are  stated.  Slaughter  v. 
Heath,  27:  i,  57  S.  E.  69,  127  Ga.  747. 

1112.  Witnesses  in  a  will  contest  cannot 
testify  that  testator  was  a  monomaniac 
merely  because  believing  in  spiritualism. 
O'Dell  V.  Goff,  10:  989,  112  N.  W.  736,  149 
Mich.  152. 

Character;  disposition. 
Sufficiency  of  objections  to,  see  Appeal  and 
Error,  318. 

1113.  One  cannot  testify  as  to  the  charac- 
ter of  one  accused  of  crime  as  to  the  par- 
ticular traits  involved  in  the  issue  based  on 
his  personal  acquaintance  and  observation. 
People  v.  Van  Gaasbeck,  22:  650,  82  N.  E. 
718,  189  N.  Y.  408.  '  (Annotated) 

1114.  The  individual  opinion  of  a  witness 
as  to  the  good  character  or  reputation  of  a 
person  is  not  admissible  in  a  criminal  pros- 
ecution, since,  when  character  is  the  sub- 
ject of  inquiry,  the  evidence  must  be  as  to 
the  general  reputation  derived  from  the 
speech  of  the  people  in  the  community  in 
which  he  resides.  State  v.  Magi  11,  22:  666, 
122  N.  W.  330,  19  N.  D.  131.     (Annotated) 

1115.  One  personally  acquainted  with  a 
person  accused  of  rape  may  testify  as  to 
his  character  for  chastity,  basing  his  testi- 
mony upon  the  fact  that  it  had  never  been 
assailed  in  the  community.  State  v.  Hosey, 
22:  670,  103  Pac.   12,  54  Wash.  309. 

1116.  A  witness  who  is  personally  ac- 
quainted with  one  accused  of  rape  may  tes- 
tify as  to  his  character  for  good  citizenship 
and  chastity  from  his  personal  observation 
of  him.  State  v.  Hosey,  22:  670,  103  Pac. 
12,  54  Wash.  309.  (Annotated) 

1117.  One  who  has  described  the  language 
and 'acts  of  another  may  add  his  opinion 
that  he  has  a  very  wilful,  unpleasant,  and 
domineering  disposition.  Mathewson  v. 
Mathewson,  18:  300,  69  Atl.  646,  81  Vt.  173. 

/.  Values;  damages. 

(See   also    same '  heading   in   Digest   L.R.A. 

Evidence  as  to  generally,  see  infra,  XI.  f. 
Prejudicial   error   as   to,    see   Appeal   and 
Error,   1111. 

1118.  A  passenger  deprived  of  the  use  of 
his  baggage  by  the  carrier's  negligence  may, 
in  an  action  to  hold  the  carrier  liable  for 
the  damages  thereby  caused  him,  state  to 
the  jury  what  the  possession  of  the  bag- 
gage would  have  been  worth  to  him  during 
the  time  of  delay.  Central  of  Georgia  R. 
Co.  V.  Jones,  37:  588,  54  So.  509,  170  Ala. 
611. 

Disest  1-52  L.R.A.(N.S.) 


Personal  injuries. 

1119.  One  seeking  damages  for  personal 
injuries  cannot  express  an  opinion  as  to 
the  monetary  extent  of  his  damages.  Kirk 
V.  Seattle  Electric  Co.  31:  991,  108  Pac. 
604,  58  Wash.  283. 

1120.  A  father  may  testify,  in  an  action  to 
recover  damages  for  injury  to  his  minor 
son,  concerning  the  boy's  capacity  to  earn 
money  in  his  injured  condition.  Ewing  v. 
Lanark  Fuel  Co.  29:  487,  65  S.  E.  200,  65 
W.  Va.  726. 

Services. 

Evidence  as  to  generally,  see  infra,  1685. 
Personal  property  generally. 
Evidence  as  to  generally,  see  infra,   1686- 
1691. 

1121.  A  purchaser  of  goods  to  be  resold 
who  has  repudiated  his  bargain  because  of 
fraud  cannot  estimate  his  own  damages  in 
an  action  to  hold  the  seller  liable  therefor. 
American  Pure  Food  Co.  v.  Elliott,  31:  910, 
66  S.  E.  451,  151  N.  C.  393. 

1122.  Parties  who  have  examined  clothing 
injured  through  another's  negligence,  and 
who  are  familiar  with  the  values  of  such 
articles,  may  state  their  opinions  as  to  the 
proportion  of  damage  done  by  the  injury. 
Withey  v.  Pere  Marquette  R.  Co.  i:  352, 
104  N.  W.  773,  141  Mich.  412. 

1123.  A  dealer  in  bonds  cannot  be  allowed 
to  give  his  opinion  as  to  the  value  of  par- 
ticular bonds  which  he  has  never  dealt  in, 
or  seen,  except  those  before  the  court.  Peo- 
ple v.  Turpin,  17:  276,  84  N.  E.  679,  233  111. 
452. 

Medicine. 

1124.  One  who  has  merely  read  a  report 
of  an  analysis  of  a  patent  medicine  cannot 
testify  as  to  the  value  of  the  medicine. 
Foster-Milburn  Co.  v.  Chinn,  34:  1137,  120 
S.  W.  364,  134  Ky.  424. 

Real  property. 

Evidence  as  to  generally,   see   infra,   1692- 
1702,   1735-1749. 

1125.  Opinion  evidence  is  admissible  upon 
the  question  of  the  effect  upon  the  market 
value  of  property  of  a  change  in  the  grade 
of  the  street  on  which  it  abuts.  Swift  &  Co. 
V.  Newport  News,  3:  404,  52  S.  E.  821,  105 
Va.   108. 

1126.  To  admit  expert  evidence  of  the 
value  of  land  as  a  source  of  water  supply 
in  a  proceeding  to  secure  compensation  for 
it  after  it  has  been  taken  by  right  of  emi- 
nent domain,  petitioner  must  show  that  it  is 
impossible  to  prove  the  value  of  the  land  in 
the  usual  way.  Sargent  v.  Merrimac,  11: 
996,  81  N.  E.  970,  196  Mass.  171. 

1127.  It  is  not  necessary  to  qualify  a  wit- 
ness as  an  expert  before  allowing  him  to 
testify  as  to  the  value  of  property  sought 
to  be  taken  under  condemnation  proceed- 
ings, or  the  damage  that  will  be  sxistained 
to  tlie  remaining  property  by  reason  of  the 
severance  of  the  part  taken,  since  the  relia- 
bility of  his  testimony  may  be  tested  on 
cross-examination.  Idaho  &  W.  R.  Co. 
v.  Columbia  Conference,  38:  497,  119  Pac. 
60,  20  Idaho,  568. 

1128.  In  an  action  for  damages  for  injury 
to   growing   crops   from   sulphurous   fumes, 


1156 


EVIDENCE,  VII.  g- 


the  testimony  of  witnesses  who  have  quali- 
fied as  experts  on  agriculture  familiar  witli 
the  particular  land  in  question,  as  to  the 
amount  of  crops  which  would  have  been 
produced  on  the  land  but  for  the  alleged 
fumes,  the  amount  actually  produced  on  the 
land  in  question  with  the  fumes  present, 
the  value  of  the  respective  crops  produced 
during  the  season  in  question,  and  the 
amount  produced  on  land  similar  to  that 
in  question  during  the  same  season,  under 
like  mode  of  cultivation,  and  with  the  same 
kind  of  fertilizer,  is  admissible,  not  as 
showing  the  measure  of  damages,  but  as 
furnishing  a  basis  from  which  to  ascertain 
their  amount.  International  Agricultural 
Corp.  v.  Abercrombie,  49:  415,  63  So.  549, 
184  Ala.  244. 
—  Competency  of  ixritnesses. 

1129.  One  who  disclaims  familarity  with 
the  price  of  property  cannot  give  an  opinion 
as  to  its  value.  Adler  v.  Pruitt,  32:  889, 
53   So.  315,   169  Ala.  213. 

1130.  That  witnesses  have  not  gained  their 
knowledge  of  the  condition  of  land  injured 
by  flood,  by  personal  observation,  does  not 
prevent  their  giving  an  opinion  upon  the 
cost  of  restoring  it,  where  its  condition  was 
described  by  other  witnesses.  Hufnagle  v. 
Delaware  &  Hudson  Co.  40:  982,  70  Atl.  205, 
227  Pa.  476. 

1131.  One  who  has  observed  the  injury  to  a 
house  by  the  breaking  of  its  windows,  clap- 
boards, and  shingles  by  the  casting  of 
boards  against  it,  may,  after  describing  the 
injury  to  the  jury,  give  his  opinion  as  to 
the  amount  of  damages '  which  should  be 
awarded  for  the  injury.  Bishop  v.  Reads- 
boro  Chair  Mfg.  Co.  36:  1171,  81  Atl.  454, 
85  Vt.  141. 

1132.  The  opinion  of  a  farmer  as  to  the 
value  of  a  growing  crop,  which  opinion  is 
based  on  the  average  yield  and  market  value 
of  the  crops  of  the  same  kind,  planted  and 
cared  for  in  the  same  manner  in  the  same 
community,  less  the  cost  of  maturing,  har- 
vesting, and  marketing,  and  as  to  what  the 
crop  would  have  brought  in  its  immature 
state  at  a  sale  in  that  community,  is  ad- 
missible in  an  action  to  recover  damages  for 
the  unlawful  destruction  thereof.  Chicago, 
R.  I.  &  P.  R.  Co.  V.  Johnson,  27:  879,  107 
Pac.  662,  25  Okla.  760. 

g.  Contingent  results;  what  might  have 
been. 

{See  also   same  heading   in  Digest  L.R.A. 
1-10.) 

1133.  Stock  shippers  who  saw  a  carload  of 
cattle  which  were  alleged  to  have  been 
injured  by  freezing  may  be  permitted  to 
testify  as  to  whether  or  not  cattle  would 
freeze  in  such  a  car  with  a  temperature 
such  as  was  shown  to  have  existed  at  the 
time.  Colsch  v.  Chicago,  M.  &  St.  P.  R. 
Co.  34:  1013,  127  N.  W.  198,  149  Iowa,  176. 

1134.  Witnesses  to  a  slander  cannot  state 
their  impressions  as  to  the  injurious  ef- 
fect of  the  statement  upon  the  reputation 
of  the  one  against  whom  it  was  uttered. 
Digest  1-52  L.R.A.(N.S.) 


Linehan  v.  Nelson,  35:  mg,  90  N.  E.  1114, 
197  N.  Y.  482.  (Annotated) 

h.  Legal  questions;  meaning  of  terms; 
foreign  laws. 

{See  also    same   heading   in   Digest   L.R.A. 
1-10.) 

Legal  questions. 

Evidence  as  to  attorney's  opinion   concern- 
ing title  to  personalty,  see  infra,  1205. 
Foreign  laivs. 

1135.  It  is  permissible  to  prove  the  con- 
struction of  the  statutes  and  the  common 
law  of  another  jurisdiction  by  a  competent 
witness  who  is  a  member  of  the  bar  of  the 
foreign  jurisdiction,  and  in  the  active  prac- 
tice of  his  profession  in  that  jurisdiction. 
Dimpfel  v.  Wilson,  13:  1180,  68  Atl.  561, 
107  Md.  329. 

Meaning  of  terms. 

1136.  Expert  testimony  is  not  admissible 
upon  the  meaning  of  the  words  'par"  or 
"par  value"  as  applied  to  commercial  paper. 
Smith  V.  State  ex'  rel.  McNeil,  35:  789,  56 
So.  179,  99  Miss.  859. 

i.  Estimates  of  quantity;  speed;  time. 

(See  also   same   heading   in  Digest   L.R.A. 
1-10.) 

Speed. 

Prejudicial  error  in  admitting,  see  Appeal 
AND  Error,  1170. 

1137.  Any  person  of  ordinary  ability  and 
•means  of  observation  who  may  have  ob- 
served an  automobile  traveling  on  a  public 
highway  may  give  his  estimate  as  to  the 
rate  of  speed  at  which  it  was  moving. 
Miller  v.  Jenness,  34:  782,  114  Pac.  1052, 
84  Kan.  608. 

1138.  A  bystander  not  possessed  of  tech- 
nical or  scientific  knowledge  may  give  his 
opinion  as  to  the  speed  of  an  automobile 
which  runs  down  and  injures  a  person  on  a 
highway.  Dugan  v.  Arthurs,  34:  778,  79 
Atl.   626,  230  Pa.  299.  (Annotated) 

1139.  A  witness  familiar  with  a  locality, 
and  with  the  passing  of  street  cars  there, 
may  give  his  opinion  as  to  the  speed  of  a 
certain  car  which  he  saw  at  the  time  it 
collided  with  a  vehicle  on  the  street.  Teck- 
lenburg  v.  Everett  R.,  Light  &  Water  Co. 
34:  784,  109  Pac.  1036,  59  Wash.  384. 

( Annotated ) 

1140.  Opinion  evidence  as  to  the  rate#f 
speed  at  which  a  street  car  may  be  operated 
in  a  city  street  is  not  admissible  in  an  ac- 
tion for  injuries  to  a  pedestrian  by  collision 
with  a  car,  since  the  question  of  the  negli- 
gent operation  of  the  car  under  all  the  cir- 
cumstances is  for  the  jury.  Ford  v.  Paducah 
City  Ry.  8:  1093,  99  S.  W.  355,  124  Ky. 
488. 

1141.  One  injured  by  collision  with  a 
street  car  may  testify  as  to  the  speed  at 
which  the  car  appeared  to  him  to  be  run- 
ning. Sluder  v.  St.  Louis  Transit  Co.  5: 
186,  88  S.  W.  648.  189  Mo.  107. 

1142.  One  familiar  with  a  railroad  cross- 


EVIDENCE,  VII.  j. 


1157 


ing,  who  has  frequently  seen  trains  pass 
there,  may  testify  that  a  train  seen  by  him 
which  collided  with  a  vehicle  at  the  crossing 
was  running  at  the  rate  usually  maintained 
by  trains  at  the  crossing.  Bracken  v. 
Pennsylvania  R.  Co.  34:  790,  71  Atl.  926, 
222   Pa.   410.  (Annotated) 

Time. 

1143.  One  who  has  gone  over  the  route  be- 
tween the  home  of  one  who  committed  an 
assault  and  that  of  his  victim  may  give 
his  opinion  as  to  the  time  it  would  take 
a  man  at  ordinary  gait  to  travel  between 
the  two  places.  State  v.  McGuire,  38:  1045, 
80  Atl.  761,   84  Conn.  470. 

1144.  Sufficient  evidence  of  the  qualifica- 
tion of  an  expert  to  give  his  opinion  as  to 
the  time  necessary  to  restore  a  building 
injured  by  an  explosion  is  produced  by  his 
testimony  that  he  knew  the  building  before 
the  explosion,  and  had  examined  it  after- 
wards. Higgins  V.  Los  Angeles  Gas  &  Elec- 
tric Co.  34:  717,  115  Pac.  313,  159  Cal.  651. 

j.  Danger;  sliill;  negligence. 

(See  also   same  heading  in  Digest  L.B.A. 
1-10.) 

Evidence  as  to  speed  of  vehicles,  see  supra, 

1137-1142. 
Sufficiency  of  evidence  as  to,  see  infra,  XII. 

d. 

1145.  Testimony  of  horsemen  is  admissi- 
ble upon  the  question  whether  or  not  a 
steam  shovel  was  calculated  to  frighten 
horses  of  ordinary  gentleness.  Heinmiller 
V.  Winston,  6:  150,  107  N.  W.  1102,  131 
Iowa,  32. 

1146.  Upon  the  question  of  negligence  on 
the  part  of  a  bailee  of  a  horse,  which  re- 
sulted in  its  injury,  opinion  evidence  is  not 
admissible  as  to  whether  or  not  the  vehicle 
was  properly  loaded  and  the  driver  was 
acting  under  the  direction  of  the  bailee, 
such  questions  being  for  the  decision  of  the 
jury.  Weller  v.  Camp,  28:  1106,  52  So.  929, 
169  Ala.  275. 

1147.  A  stock  shipper  may  be  allowed  to 
testify  in  an  action  against  a  carrier  for 
injury  to  live  stock,  that  the  car  in  which 
the  stock  was  shipped,  which  he  saw,  was 
overloaded.  Colsch  v.  Chicago,  M.  &  St.  P. 
K.  Co.  34:  1013,  127  N.  W.  198,  149  Iowa, 
176. 

1148.  Opinion  evidence  as  to  the  safety  of 
placing  doors  closing  the  openings  into  an 
elevator  well  on  the  side  of  the  wall  away 
from,  instead  of  next  to,  the  car,  is  not  ad- 
missible in  an  action  to  recover  for  injuries 
caused  by  such  construction.  Siegel,  C,  & 
Co.  v.  Trcka,  2:  647,  75  N.  E.  1053,  218  111. 
559. 

1149.  It  is  not  error  to  exclude  the  opin- 
ion of  witnesses  as  to  the  dangerous  char- 
acter of  an  obstruction  in  a  street,  where  it 
can  be  easily  described,  and  the  question 
whether  or  not  it  was  dangerous  easily  de- 
terminable by  the  jury.  McKim  v.  Phila- 
delphia, 19:  506,  66  Atl.  340,  217  Pa.  243. 
Safety  of  bridge. 

Digest  1-52  L.R.A.(N.S.) 


1150.  A  properly  qualified  witneiss  may 
give  an  opinion  as  to  the.  sudiciency  and 
safety  of  the  guard  rail  on  a  bridge  to 
protect  users  from  loss  or  injury.  Dar- 
danelle  Pontoon  Bridge  &  Tump.  Co.  v. 
Croom,  30:  360,  129  S.  W.  280,  95  Ark.  284. 

1151.  One  not  shown  to  possess  any  special 
skill  or  knowledge  which  would  qualify  him 
to  instruct  the  jury  cannot  give  his  opin- 
ion as  to  what  was  necessary  to  safeguard 
a  bridge  when  the  draw  was  open,  in  an 
action  to  recover  for  the  death  of  one  who 
fell  from  it  at  such  time.  Anne  Arundel 
County  V.  State  use  of  Stansbury,  14:  452, 
68  Atl.  602,  107  Md.  210. 

1152.  Opinion  evidence  as  to  the  safety  of 
a  bridge  is  not  admissible  in  an  action  to 
hold  its  owner  liable  for  injury  to  an  em- 
ployee, if  the  bridge  has  been  so  described 
and  photographed  that  the  jury  can  fully 
understand  its  character  and  condition. 
Duncan  v.  Atchison,  T.  &  S.  F.  R.  Co. 
51:  565,  119  Pac.  356,  86  Kan.   112. 

(Annotated) 
Railroad  employees. 

1153.  Evidence  of  a  statement  by  an  em- 
ployee injured  by  a  bar  struck  and  thrown 
by  a  passing  train,  that  it  was  left  too 
near  the  track  by  a  coemployee,  is  inad- 
missible, as  a  mere  conclusion.  Dunn  v. 
Chicago,  R.  I.&  P.  R.  Co.  6:  452,  107  N.  W. 
616,  130  Iowa,  580. 

1154.  In  an  action  to  hold  a  railway  com- 
pany liable  for  the  death  of  a  brakeman, 
opinions  of  railway  employees  as  to  which 
side  of  a  freight  train  it  was  proper  for  him 
to  alight  in  order  to  give  signals  are  ad- 
missible, since  they  relate  to  matters  of 
special  knowledge  or  experience.  Duncan 
v.  Atchison,  T.  &  S.  F.  R.  Co.  51:  565,  119 
Pac.  356,  86  Kan.  112. 

Employees  generally. 

Error  in  admission  of  expert  testimony  as 

to  dangerous  character  of  machine,  see 

Appeal  and  Error,  1102. 

1155.  Witnesses  experienced  in  the  con- 
struction and  operation  of  mil  is  and  who 
helped  to  construct  the  one  in  which  the  in- 
jury forming  the  basis  of  the  action  oc- 
curred, which  was  due  to  the  blowing  out 
of  the  cylinder  head,  may  properly  express 
their  opinions  that  the  operation  of  the 
mill  or  cylinder  head  without  a  protecting 
barrier  to  prevent  injury  to  workmen  in 
case  it  blew  out  was  dangerous.  Comer  v. 
W.  M.  Hitter  Lumber  Co.  6:  552,  53  S.  E. 
906,  59  W.  Va.  688. 

1156.  A  person  conversant  for  a  number 
of  years  with  the  operation  of  threshing 
machines  may  properly  give  expert  testi- 
mony in  an  action  to  recover  for  per- 
sonal injuries,  to  the  efiect  that  it  is  dan- 
gerous to  undertake  to  put  a  belt  upon  the 
pulleys  of  a  steam  thresher  while  in  mo- 
tion, and  that  it  was  dangerous  to  stand  in 
the  position  occupied  by  the  plaintiff  while 
the  belt  was  being  handled  as  disclosed  by 
the  evidence.  Maxson  v.  J.  I.  Case  Thresh- 
ing Mach.  Co.  16:  963,  116  N.  W.  281,  81 
Neb.  546. 

1157.  Expert  evidence  as  to  the  tendency 
of  emery  wheels  in  general  to  burst  in  use 


1158 


EVIDENCE,  VII.  k— m. 


is  not  admissible  upon  the  question  of  neg- 
ligence in  using  a  particular  make  of  wheel 
of  the  ingredients  of  which  the  witness  is 
ignorant,  where  it  is  shown  that  the  in- 
gredients and  dt-nger  of  explosion  of  dif- 
ferent makes  of  wheels  are  different. 
Brands  v.  St.  Louis  Car  Co.  i8:  701,  112  S. 
W.  511,  213  Mo.  698. 

fe.  Intent;  mental  conditions. 

(See  also   same   heading   in  Digest   L.R.A. 
1-10.) 

1158.  The  agent  of  a  seller  cannot  state 
the  intention  of  the  seller  in  taking  bills 
of  lading  in  his  name  and  forwarding  them 
with  drafts  attached  for  collection  before 
surrender  of  the  property,  since  it  is  a  mera 
conclusion.  Hamilton  v.  Joseph  SchJitz 
Brewing  Co.  2:  1078,  105  N.  W.  438,  I'^y 
Iowa,  172.  (Annotated) 

Jl.  Appearance;    identity;    quality;    an- 
thenticity. 

(See   also  same   heading   in   Digest  L.R.A. 
1-10.) 

Appearance. 

Appearance     of     intoxication,     see     supra, 

1093,   1094. 
Appearance  as  to  speed,  see  supra,   1137- 

1142. 
See  also  infra,  1474,  2045. 

1159.  One  who  saw  an  injured  person  at 
the  time  of  the  accident  in  question  may 
properly  state  that  the  expression  upon  her 
face  was  that  of  a  person  in  great  pain. 
Morris  v.  St.  Paul  Citv  R.  Co.  17:  598,  117 
N.  W.  500.  105  Minn.  276. 

1160.  A  witness  in  a  homicide  case  who 
has  testified  to  having  seen  a  person  near 
the  place  of  the  homicide  about  the  time 
of  its  occurrence  may  state  what  he  ap- 
peared to  be  doing.  Com.  v.  Snell,  3:  1019, 
75  N.  E.  75,  189  Mass.  12. 

1161.  In  a  prosecution  for  homicide  a  wit- 
ness may  properly  testify  as  to  whether  or 
not  the  accused  and  the  deceased  appeared 
"friendly"  toward  each  other  'a  short  time 
before  the  killing,  since  mere  descriptive 
language  is  inadequate  to  convey  to  the  jury 
the  precise  facts,  or  their  bearing  on  the 
issue.  State  v.  Cooley,  52:  230,  140  Pac. 
1111,  —  N.  M.  — . 

Identity. 

1162.  The  question  whether  or  not  a  par- 
ticular pin  is  one  shown  in  a  photograph  is 
not  one  for  expert  testimony.  Com.  v. 
Tucker,  7:  1056,  76  N.  E.  127,  189  Mass. 
457. 

1163.  A  buyer  of  jewelry,  who  has  at- 
tempted to  rescind  the  order,  may  point  out 
to  the  jury  the  articles  covered  by  the  dif- 
ferent items  of  the  order,  when  the  order 
and  the  jewelry  are  before  them,  if  it  does 
not  require  an  expert  to  do  so.  Loveland  v. 
Dinnan,  17:  1119,  70  Atl.  634,  81  Conn.  111. 

1164.  In  a  prosecution  for  homicide,  to 
identify  a  substance  administered  as  a 
medicine,  persons  who  were  present  when  it 
Digest  1-52  KR.A.(N.S.) 


was  given,  and  who  described  it  as  having 
a  strong,  disagreeable  odor,  may  compare 
the  odor  of  the  liquid  so  given  with  that  of 
a  compound  prepared  in  accordance  with  a 
prescription  filled  for  the  defendant  previ- 
ous to  the  homicide  and  produced  on  the 
trial,  and  testify  wliether  the  smell  is  the 
same.  State  v.  Buck,  42:  854,  127  Pac.  631, 
88  Kan.  114.  (Annotated) 

1165.  Evidence  as  to  identity  of  a  man  seen 
by  a  witness  in  his  room  at  night  is  ad- 
missible, its  weight  being  for  tlie  jury.  Peo- 
ple V.  Jennings,  43:  1206,  96  N.  E.  1077, 
262  111.  534. 

1166.  In  a  civil  action  to  recover  damages 
for  the  publication  of  a  libelous  article,  the 
editor  of  defendant's  paper,  in  which  the  al- 
leged libel  was  published,  should  not  be  re- 
quired, over  objection,  to  testify  as  to  whom 
he  considered  and  supposed  the  article  re- 
ferred. Dennison  v.  Daily  News  Pub.  Co. 
23:  362,  118  N.  W.  568,  82  Neb.  675. 

1167.  A  prosecuting  witness  may  be  per- 
mitted to  identify  the  accused  solely  from 
having  heard  his  voice  in  the  darkness  at 
the  time  of  the  commission  of  the  offense 
complained  of.  Mack  v.  State,  13:  373,  44 
So.  706,  54  Fla.  55.  (Annotated) 
Quality. 

1168.  In  an  action  for  the  price  of  jewelry 
the  order  for  which  the  buyer  has  attempted 
to  rescind,  expert  evidence  is  admissible  to 
show  that  articles  in  the  order  were  marked 
so  as  to  indicate  that  they  were  mado  of 
better  material  than  that  actually  used. 
Loveland  v.  Dinnan,  17:  11 19,  70  Atl.  634,  81 
Conn.  111. 

1169.  The  merchantable  quality  of  hay 
delivered  under  a  contract  requiring  the 
delivery  of  good  merchantable  haj'  must  be 
established  by  the  evidence  of  experts,  or 
by  men  who  know  what  merchantable  hay 
is  in  the  markets  where  this  hay  is  sold, 
and  who  have  inspocted  the  hay  tendered 
or  an  average  sample  of  it.  Trego  v.  Arave, 
35:  1021,  116  Pac.   119,  20  Idaho,  38. 

m.  Handwriting;    finger   prints. 

(See  also  same  heading  in  Digest  LJt.A. 
1-10.) 

Admissibility  of  writings-  for  purpose  of 
comparison,  see  supra,  IV.  p. 

Sufficiency  of  identification  by  finger  prints, 
see  infra,  2374. 

See  also  Witnesses,  67. 

1170.  Expert  testimony  is  admissible  to 
aid  in  determining  whether  or  not  signa- 
tures properly  admissible  in  evidence  are 
facsimiles.  Stitzel  v.  Miller,  34:  1004,  95  N. 
E.  53,  250  111.  72. 

1171.  In  a  prosecution  for  forgery  a  wit- 
ness who  testifies  that  he  has  seen  defend- 
ant sign  his  name  on  different  occasions, 
and  thinks  he  is  familiar  with  defendant's 
signature,  is  competent  to  testify  as  to  the 
signature  of  the  defendant.  Pittman  v. 
State,  8:  509,  41  So.  385.  51  Fla.  94. 

1172.  A  witness  who  has  seen  a  lost  in- 
strument alleged  to  have  been  written  and 


EVIDENCE,  VII.  n. 


1159 


signed  by  a  certain  person  may,  if  other- 
wise competent,  testify,  from  a  comparison 
of  admittedly  genuine  specimens  of  siicli 
person's  liandwriting  introduced  in  evidence 
for  the  purpose  of  comparison,  that  tlie  lost 
instrument  was  written  and  signed  by  such 
person,  though  the  witness  has  never  seen 
any  specimens  of  such  person's  handwriting, 
either  admittedly  genuine  or  otherwise, 
other  than  that  in  which  the  lost  instrument 
was  written  and  signed  and  the  exhibits  sub- 
mitted to  him  for  comparison.  Cochran 
V.  Stein,  41:  391,  136  N.  W.  1037,  118  Minn. 
323.  (Annotated) 

1173.  One  having  full  opportunity  and  fre- 
quent occasion  to  observe  and  note  the  hand- 
writing of  a  person  on  ancient  documents 
free  from  suspicion,  from  which  he  has 
been  able  to  form  a  satisfactory  opinion  as 
to  the  writing  on  an  ancient  document  in 
question,  may  give  his  opinion  as  to  the 
genuineness  of  such  writing,  although  he 
is  not  a  handwriting  expert.  Nicholson  v. 
Eureka  Lumber  Co.  36:  162,  72  S.  E.  86, 
156  N.  C.  59.  (Annotated) 

1174.  One  who  claims  to  have  received  let- 
ters from  another,  but  who  has  never  seen 
him  write  and  is  not  an  expert  in  handwrit- 
ing, is  not  competent  to  testify  that  they 
were  written  by  him,  although  she  claims 
that  he  acknowledged  that  he  wrote  two  of 
them,  where  that  fact  is  disputed,  so  that 
there  is  no  undisputed  writing  in  evidence  to 
form  the  basis  of  comparison.  State  v.  Mc- 
Bride,  7:  557,  85  Pac.  440,  30  Utah,  422. 

(Annotated) 

1175.  It  is  not  error  to  refuse  to  permit 
an  expert  in  handwriting  to  testify,  from  an 
examination  of  a  will  and  an  erasure  there- 
in, that  a  person  who  wrote  with  a  nervous 
hand  would  be  unable  to  make  such  an  era- 
sure, althoiigh  the  witness  might  properly 
testify  that  the  hand  of  the  person  who 
wrote  the  "vill  was  nervous  and  unsteady. 
Scott  V.  Thrall,  17:  184,  95  Pac.  563,  77  Kan. 
688. 

Tinger  prints. 

1176.  A  comparison  of  finger  prints  may  be 
made  by  witnesses  skilled  in  the  art,  for 
the  purpose  of  identifying  one  accused  of 
crime.  People  v.  Jennings,  43:  1206,  96  N. 
E.  1077,  252  111.  534.  (Annotated) 

1177.  Witnesses  who  for  several  years  have 
made  a  study  of  finger  prints  in  connection 
with  the  detective  bureaus,  and  had  actual 
experience  in  identifying  persons  by  that 
method,  may  make  comparison,  as  experts. 
of  finger  prints  in  evidence  for  purposes  of 
identification.  People  v.  Jennings,  43:  1206, 
96  N.  E.  1077.  252  111.  534. 

1178.  Evidence  of  a  finger  print  expert  is 
not  rendered  inadmissible  becaxise  he  states 
that  prints  given  him  for  comparison  were 
made  by  the  same  person  rather  than  that 
in  his  opinion  they  were  so  made.  People 
V.  Jennings,  43:  1206,  96  N.  E.  1077,  252  111. 
534. 

1179.  Expert  testimony  concerning  finger 
prints  obtained  voluntarily  from  one  being 
tried  for  murder,  for  the  purpose  of  com- 
parison with  finger  prints  upon  a  hatchet 
found  near  the  body  of  the  deceased  at  the 
Digest   1-52  L,.R.A.(N.S.) 


time  of  the  discovery  of  the  body,  is  ad- 
missible. State  V.  Cerciello  (N.  J.  Err.  & 
App.)  52:  loio,  90  Atl.  1112,  86  N.  J.  L. 
309. 

n.  Miscellaneous. 

(See   also   same   heading   in  Digest   L.R.A. 
1-tO.) 

See  also  supra,  841. 

1180.  An  officer  of  a  bank  may  testify  to 
its  transactions  from  his  knowledge  of  its 
course  of  business,  although  he  has  no  per- 
sonal knowledge  of  them.  Lilly  v.  Hamil- 
ton Bank,  29:  558,  178  Fed.  53,  102  C.  C, 
A.   1. 

1181.  A  witness  may  express  an  opinion 
as  to  the  inferences  to  be  drawn  from  the 
appearance  of  cattle  brands,  where  he  has 
some  special  training  in  the  matter,  al- 
though his  experience  has  not  been  such  as 
to  enable  him  to  speak  with  authority. 
State  v.  Wolfley,  11:87,  89  Pac.  1046,  75 
Kan.  406. 

1182.  One  from  whose  office  a  letter  is 
alleged  to  have  issued,  who  has  testified 
that  he  had  no  knowledge  of  it,  and  as 
to  the  routine  of  the  oflfice,  cannot  be  re- 
quired to  express  his  opinion  as  to  whether 
or  not  the  letter  did  issue  from  his  office 
over  his  apparent  signature.  Willner  v.  Sil- 
verman, 24:  895,  71  Atl.  962,  109  Md.  341. 

1183.  An  employee  of  the  weather  bureau 
cannot  be  allowed  to  testify  from  journal 
entries  made  by  a  predecessor  in  the  office, 
that  the  weather  at  a  certain  time  had 
caused  streams  to  rise  rapidly  and  to  over- 
flow adjoining  land,  since  it  consists  large- 
ly of  the  individual  opinion  of  the  writer. 
Hufnagle  v.  Delaware  &  Hudson  Co.  40:  982, 
76  Atl.   205,   227   Pa.  476. 

1184.  It  is  not  error  to  permit  an  expert, 
in  an  action  for  the  price  of  an  organ,  to 
answer  the  question  "What  did  the  regula- 
tion indicate?"  for  the  purpose  of  showing 
that  the  management  of  the  organ  had 
been  improper, — at  least  where  He  states 
the  facts  on  which  his  opinion  is  based. 
Estey  Organ  Co.  v.  Lehman,  11:  254,  111  N. 
W.  1097,  132  Wis.  144. 

1185.  Witnesses  in  a  murder  trial  who  had 
experience  in  trailing  men,  and  who  fol- 
lowed the  tracks  of  two  men  from  the  scene 
of  the  murder,  may  testify  as  to  the  differ- 
ence in  the  characteristics  of  the  tracks  of 
men  walking  and  running.  Grant  v.  State, 
42:  428,  148  S.  W.  760,  —  Tex.  Crim.  Rep. 

1186.  Citizens  of  a  municipality  may  tes- 
tify as  to  how  a  red  flag  is  regarded  by  law- 
abiding  citizens  in  the  community.  People 
V.  Burman,  25:  251,  117  N.  W.'  589,  154 
Mich.  150. 

1187.  One  who  has  served  as  motorman  and 
conductor  on  electric  cars,  but  has  had  no 
experience  in  superinl  ending  the  construc- 
tion of  the  trolley  wires  for  cross-over 
tracks,  is  not  qualified  to  express  his  opinion 
as  to  the  practicability  of  such  device.    Nor- 


1160 


EVIDENCE,  VII.  n. 


folk  &  P.  Traction  Co.  v.  Ellington,  17:  117, 
61  S.  E.  779,  108  Va.  245. 

1188.  Evidence  by  comparison  of  odors 
tending  to  prove  that  one  accused  of  mur- 
der by  administering  to  a  person  named 
"certain  deadly  drugs  and  poisons,  to  wit, 
cyanide  of  potassium  and  hydrocyanic  acid, 
and  also  other  drugs  and  poisonous  sub- 
stances to"  the  county  attorney  unknown, 
administered  a  preparation  of  ergot,  cotton 
root,  and  dilute  sulphuric  acid  to  his  al- 
leged victim  several  times  in  the  two  days 
preceding  her  death,  is  admissible  although 
the  accused  administered  a  different  treat- 
ment immediately  before  the  death,  where 
the  various  treatments  appear  to  be  parts 
of  a  connected  transaction.  State  v.  Buck, 
42:  854,  127  Pac.  631,  88  Kan.  114. 

1189.  Although  courts  take  judicial  notice 
of  the  methods  of  mercantile  agencies,  this 
knowledge  may  be  supplemented  respect- 
ing disputed  methods  of  business  by  the 
testimony  of  experienced  officers  of  the 
agencies  themselves.  Davis  v.  Louisville 
Trust  Co.  30:  loii,  181  Fed.  10,  104  C.  C. 
A.  24. 

Purpose,  motive,  or  intent. 

1190.  Upon  a  prosecution  for  selling  opium 
to  an  habitual  user,  under  a  statute  re- 
quiring persons  selling  it  at  retail  to  sat- 
isfy themselves  that  it  is  desired  for  legiti- 
mate purposes,  physicians  and  druggists 
may  testify  that,  in  their  opinion,  such  sale 
is  not  for  a  legitimate  purpose.  Katzman 
v.  Com.  30:  519,  130  S.  W.  990,  140  Ky. 
124. 

1191.  A  question  whether  a  payment  was 
made  to  accommodate  one  person  or  another 
calls  for  the  mere  opinion  of  the  witness 
to  whom  it  is  propounded,  and  the  court 
may  properly  refuse  to  allow  it  to  be  an- 
swered. Mankin  v.  Jones,  15:  214,  60  S.  E. 
248,   63  W.   Va.   373. 

Anthority  of  agent. 

1192.  An  agent,  the  validity  of  a  contract 
executed  by  whom  is  in  controversy,  cannot 
state  as  a  witness  whether  or  not  he  had 
authority  to  spend  money  for  the  purposes 
to  which  the  contract  relates.  Parrot  v, 
Mexican  C.  R.  Co.  34:  261,  93  N.  E.  590,  207 
Mass.  184. 

1193.  On  an  issue  as  to  the  authority  of 
the  president  of  a  corporation  as  agent  of 
the  corporation,  such  president  is  a  compe- 
t|nt  witness,  and  may  state  that  he  had 
full  management  and  control  of  the  affairs 
of  the  company,  buying  and  selling  and 
looking  after  its  finances,  and  was  under 
the  duty  of  executing  notes,  checks,  and 
other  papers,  and  did  all  these  things  with 
the  approbation  of  the  directors,  such  being 
statements  of  fact,  and  not  mere  expressions 
of  opinion;  and  proof  that  the  person  in 
whose  favor  such  president  had  assumed  to 
bind  the  corporation  had  knowledge  of  these 
facts  is  not  essential.  Union  Bank  &  T. 
Co.  V.  Long  Pole  Lumber  Co.  41:  663,  74 
S.  E.  674,  70  W.  Va.  558. 

Character  of  property. 

1194.  The  opinion  of  a  man  upon  the  ques- 
tion whether  or  not  part  of  his  property 
was  community  is  not  admissible  in  evi- 
Digest  1-52  I<.R.A.(N.S.) 


dence  in  a  proceeding  by  the  wife  to  estab- 
lish title  to  part  of  the  property  left  by 
him    as   community.      Re   Pepper,   31:  1092, 

112  Pac.  62,  158  Cal.  619. 
Physical  facts. 

See  also  supra,  1183. 

1195.  An  employee  of  the  weather  bureau 
who  has  testified  to  the  temperature  and 
precipitation  on  a  certain  date,  and  what 
would  or  would  not  constitute  extraordi- 
nary precipitation,  cannot  state  his  opin- 
ion whether  or  not  tho  precipitation  on  that 
date  was  extraordinary.  Hufnagle  v.  Dela- 
ware &  Hudson  Co.  40:  982,  76  Atl.  205,  227 
Pa.  476. 

1196.  An  engineer  having  experience  in 
cleansing  and  purifying  water  for  drinking 
purposes  cannot  be  said  to  be  clearly  incom- 
petent to  testify  as  an  expert  as  to  the 
purification  of  mine  water  to  avoid  pollu- 
tion of  a  stream  into  which  it  flows,  al- 
though he  has  had  no  experience  in  the 
purification  of  such  water.  Arminius  Chem- 
ical Co.  V.  Landrum,  38:  272,  73  S.  E.  459, 

113  Va.  7. 

1197.  A  person  who  has  had  nine  years' 
experience  as  manager  of  a  cold  storage 
plant,  and  who  has  had  occasion  to  observe 
the  condition  of  frozen  products  kept  in 
storage,  is  qualified  to  state  his  opinion 
whether  a  product  such  as  egg  meats,  hav- 
ing been  once  solidly  frozen,  will  thaw  in 
a  temperature  lower  than  the  freezing  point. 
Stewart  v.  Henningsen  Produce  Co.  50:  iii, 
129  Pac.  181,  88  Kan.  521. 

1198.  An  experienced  locomotive  engineer 
is  competent  to  testify  from  his  observa- 
tion and  experience  as  to  the  distance  that 
sparks  from  a  properly  equipped  locomotive 
will  set  fires,  although  he  has  made  no 
scientific  tests  and  is  not  a  competent 
physicist.  Potter  v.  Grand  Trunk  Western 
R.  Co.  22:  1039,  121  N.  W.  808,  157  Mich. 
216.  (Annotated) 
Practice  of  medicine. 

1199.  Expert  evidence  is  not  admissible  up- 
on the  question  whether  a  person  doing  the 
things  upon  which  the  parties  agree  is  prac- 
tising medicine,  that  being  a  question  for 
the  court  to  decide.  Com.  v.  Porn,  17:  94^ 
82  N.  E.  31,  196  Mass.  326. 

Nuisance. 

1200.  A  witness  familiar  with  the  condi- 
tions may  be  permitted  to  state  his  opinion 
as  to  whether  or  not  odors  from  a  sewage 
purification  plant  could  be  smelled  at  the 
residence  of  a  complaining  property  owner, 
although  he  could  not  give  such  evidence 
as  an  expert,  because  the  subject  was  with- 
in the  knowledge  of  all  men  of  common 
observation  and  experience.  Adler  v.  Pruitt, 
32:  889,  53  So.  315,  169  Ala.  213. 
Habits  of  animals. 

1201.  In  a  prosecution  for  maliciously  kill- 
ing and  wounding  dogs  which  were  chasing 
and  worrying  defendant's  live  stock,  evi- 
dence of  experts  as  to  the  habits  and  traits 
of  the  particular  breed  of  dogs,  to  the  effect 
that  they  would  not  in  fact  harm  or  injure 
domestic  animals,  is  inadmissible  where  the 
evidence  as  to  the  occurrence  is  direct,  and 
not  circumstantial,  unless  it  appear  that  the 


EVIDENCE,  VIII. 


1161 


defendant  at  the  time  had  knowledge  of  such 
habits   and   traits.     State   v.   Churchill,   19: 
835,  98  Pac.  853,  15  Idaho,  645. 
Kno^irledge  of  animal  propensities. 

1202.  Expert  testimony  concerning  the  pro- 
pensity of  boar  hogs  in  general  to  become 
vicious  after  a  certain  age  is  inadmissible 
to  prove  that  the  owner  of  a  boar  which 
had  inflicted  personal  injuries  while  stray- 
ing upon  the  uninclosed  land  of  the  injured 
person  had  constructive  knowledge  of  the 
vicious  propensities  of  his  boar,  as  a  boar  is 
a  domestic  animal,  and  of  a  class  the  habits 
and  propensities  of  which  in  general  are 
matters  of  common  knowledge.  Johnston 
V.  Mack  Mfg.  Co.  24:  1189,  64  S.  E.  841,  65 
W.  Va.  544.  (Annotated) 
Marriage. 

1203.  One  claiming  to  be  the  common-law 
•wife  of  a  decedent  cannot  testify  that  she 
married  him,  as  it  is  a  mere  conclusion,  and 
has  no  tendency  to  prove  common-law  mar- 
riage. Berger  v.  Kirby,  51:  182,  153  S.  W. 
1130,  105  Tex.  611. 

Good  faith;  wnrchase  for  Talue. 

1204.  One  sumg  on  a  note  which  had  been 
procured  from  the  maker  by  fraud  cannot 
be  permitted  to  testify  that  he  purchased 
the  note  in  good  faith  and  for  value,  since 
that  is  the  question  which  the  jury  must 
decide.  Arnd  v.  Aylesworth,  29:  638,  123 
N.    W.    1000,    145    Iowa,    185. 

Title  or  possession. 

1205.  Testimony  as  to  the  opinion  of  an 
attorney  concerning  the  title  to  person- 
al property  in  dispute  is  not  admissible 
in  an  action  to  recover  possession  of  it. 
Log  Owners'  Booming  Co.  v.  Hubbell,  4:  573, 
97   N.   W.   157,    135   Mich.   65. 

1206.  A  question  asked  of  a  witness  in  an 
action  of  forcible  entry  and  detainer,  as  to 
who  was  in  possession  of  the  property,  is 
not  objectionable  as  calling  for  the  conclu- 
sion of  the  witness  on  legal  possession,  in 
the  absence  of  anything  in  the  form  of  the 
question,  or  of  previous  questions  put  to 
witnesses,  indicating  that  the  word  is  used 
in  its  technical  sense,  as  synonymous  with 
"seisin."  Her  v.  Miller,  14:  289^^  111  N.  W. 
689,   78  Neb.   675.  (Annotated) 

VIII.  Confessions;     testimony    or    evi- 
dence ■wrongfully  obtained. 

(See  also  same  heading  in  Digest  L,R.A. 
1-70.) 

Admissions,  see  infra,  IX, 

Confessions  of  accomplice,  see  infra,  X.  g. 

Confession   by  stranger,   see   infra,   1404. 

Sufficiency  of  corroborating  evidence,  see 
infra,  2352,  2353. 

Review  of  discretion  in  admitting  confes- 
sion, see  Appeal  and  Error,  606. 

Production  of  books  or  documents  of  ac- 
cused as  infringing  privilege  against 
self-crimination,  see  Criminal  Law, 
103-118. 

Instruction  as  to  weight  and  value  to  be 
given  confession,  see  Trial,  911. 

See  also  Witnesses,  114. 

Digest   1-52  I<.R.A.(N.S.> 


1207.  Prima  facie  any  confession  is  ad- 
missible in  evidence,  and,  where  its  ad- 
missibility is  challenged  by  the  defendant, 
the  burden  is  on  him  to  show  that  it  was 
procured  by  such  means  or  under  such  cir- 
cumstances as  to  render  it  inadmissible, 
unless  the  evidence  on  the  part  of  the  state 
tends  to  show  that  fact.  Berry  v.  State, 
31:849,  111  Pac.  676,  4  Okla.  Crim.  Rep. 
202. 

1208.  Confessions  of  one  accused  of  arson 
are  properly  admitted  in  evidence  against 
him  after  proof  of  the  corpus  delicti.  Spears 
V.  State,  16:  285,  46  So.  166,  92  Miss.  613. 

1208a.  A  confession  signed  and  sworn  to  by 
one  arrested  while  committing  a  murderous 
assault  and  taken  immediately  before  the 
police  officials,  without  threats  or  promises 
on  their  part,  is  not  rendered  inadmissible 
in  evidence  against  him  upon  his  trial  for 
the  assault,  on  the  theory  that  he  thereby  is 
made  a  witness  against  himself.  People  v. 
Owen,  21:  520,  118  N.  W.  590,  154  Mich. 
571. 

1209.  The  admissibility  in  evidence  of  a 
voluntary  statement  made  by  one  arrested 
by  an  officer  without  warrant  is  not  affected 
by  the  illegality  of  the  arrest.  Gilmore  v. 
State,  27:  151,  106  Pac.  801,  3  Okla.  Crim. 
Rep.  434.  (Annotated) 

1210.  Statements  made  by  one  charged 
with  murder  to  a  county  attorney  and  coun- 
ty commissioner,  giving  in  detail  the  facts 
of  the  crime,  are  properly  received  in  evi- 
dence when  there  is  no  showing  that  such 
statements  were  procured  by  duress,  prom- 
ise of  reward,  or  other  improper  means. 
State  V.  Adams,  35:  870,  116  Pac.  608,  85 
Kan.   435. 

1211.  The  drunken  condition  of  an  accused 
when  making  a  confession  does  not  affect 
the  admissibility  in  evidence  of  such  con- 
fession, unless  the  drunkenness  goes  to  the 
extent  of  mania,  but  is  a  fact  for  the  con- 
sideration of  the  jury  tending  to  discredit 
such  confession.  Lindsay  v.  State,  50:  1077, 
63  So.  832,  66  Fla.  341. 

1212.  In  order  to  the  admissibility  of  a 
statement  made  by  an  accused  person,  it 
need  not  appear  that  it  is  a  full  acknowl- 
edgment of  guilt  so  as  to  be  a  confession  in 
the  strictest  sense  of  the  term.  If  it  con- 
nects or  tends  to  connect  the  accused,  either 
directly  or  indirectly,  with  the  commission 
of  the  crime  charged,  it  cannot  be  ex- 
cluded on  the  ground  that  it  is  not  a  plenary 
confession.  Rex  v.  Martin,  2  B.  R.  C.  336, 
[1905]  9  Ont.  L.  Rep.  218. 
Confessions  procured  by  inducements 

or   threats. 
See  also  infra,  1228,  1229. 

1213.  Primarily  there  are  two  facts  which 
render  a  confession  inadmissible  as  evi- 
dence: First,  that  it  was  obtained  under 
any  form  of  compulsion,  so  that  to  receive 
it  in  evidence  would,  violate  the  defendant's 
constitutional  privilege  against  self-incrim- 
ination; and,  second,  that  it  was  made 
under  such  circumstances  of  hope  or  fear 
as  to  create  a  fair  probability  of  its  testi- 
monial untrustworthiness.     Berry  v.  State, 


1162 


EVIDENCE,  VIII. 


31:849,   111    Pac.   676,   4   Okla.   Crim.   Rep. 
202. 

1214.  The  statement  of  an  ofHcer  at  the 
time  of  the  arrest  of  one  accused  of  murder 
by  shooting  his  victim,  that  he  had  missed, 
is  not  such  an  inducement  as  will  prevent  a 
confession  thereafter  made  being  introduced 
in  evidence.  Lindsay  v.  State,  50:  1077,  63 
So.   832,   66    Fla.   341,  (Annotated) 

1215.  Where  a  sheriff  having  the  custody 
of  a  person  accused  of  murder  obtains  a 
confession  from  him  by  promises  of  assist- 
ance, and  statements  that  he  would  do  all 
he  could  to  save  him  from  being  hung, 
other  confessions  subsequently  made  to  dif- 
ferent persons,  but  in  the  presence  of  such 
sheriff,  must  be  regarded  as  tainted  with 
the  same  improper  influence,  and  are  in- 
admissible against  accused,  though  he  was 
warned  before  making  them  that,  if  made, 
they  would  be  used  against  him.  State  v. 
Wood,  20:  392,  48  So.  438,  122  La.  1014. 

1216.  A  confession  by  a  prisoner  after  be- 
ing confined  for  several  days  in  a  "sweat 
box"  5  or  6  feet  by  8  in  size,  carefully 
blanketed  to  exclude  all  light  and  air,  is  not 
admissible  in  evidence  against  him,  al- 
though no  threats  or  offers  of  reward  were 
made  to  coerce  him,  and  he  was  merely  told 
that  it  would  be  better  for  him  to  tell  the 
truta.  Ammons  v.  State,  18:  768,  32  So.  9, 
80    Miss.    592.  (Annotated) 

1217.  An  alleged  confession  secured  from 
one  suspected  of  crime,  by  a  protracted 
searching  examination  of  public  officials, 
who  assumed  a  menacing  and  browbeating 
attitude,  accompanied  by  threats,  invective 
and  false  statements,  and  profanity,  is  not 
admissible  in  evidence  against  him.  Peo- 
ple V.  Borello,  37:  434,  119  Pac.  500,  161  Cal. 
367. 

1218.  A  confession  procured  by  a  news- 
paper man  from  one  locked  up  on  the  charge 
of  murder,  who  is  suffering  from  fever  and 
is  in  fear  of  mob  violence,  by  telling  him 
that  the  speaker  is  a  Spiritualist  and  can 
look  into  accused's  heart  and  see  the  crime 
he  committed,  is  not  admissible  in  evidence 
against  accused.  Johnson  v.  State,  51:  1183, 
65  So.  218,  —  Miss.  — . 

1219.  A  confession  obtained  from  one  un- 
der suspicion,  though  not  under  arrest,  by 
detectives  who  pretended  that  they  belonged 
to  a  gang  of  organized  criminals  from  the 
operations  of  which  large  profits  were  likely 
to  be  made,  and  who  offered  to  make  the 
prisoner  a  member  of  the  gang  if  he  would 
satisfy  them  that  he  had  committed  some 
serious  crime,  is  not  inadmissible  as  having 
been  obtained  by  an  inducement  of  a  tem- 
poral nature,  the  alleged  inducement  not 
having  been  held  out  by  a  person  in  au- 
thority nor  made  in  reference  to  the  charge 
against  the  prisoner.  Rex  v.  Todd,  1  B.  R. 
C.  883,  13  Manitoba  L.  Rep.  364. 

(Annotated) 
Testimony  at  corone;r's  inqnest. 

1220.  Confessions  or  inculpatory  statements 
elicited  from  persons  accused  of  homicide,  on 
their  examination  before  a  coroner's  jury, 
are  not  admissible  against  them  on  their 
subsequent  trial,  where  they  are  taken  in 
Digest  1-52  Ii.R.A.(N.S.) 


custody  before  the  coroner's  jury,  and,  with- 
out being  informed  that  they  are  not  com- 
pelled to  testify,  are  sworn  and  examined 
as  witnesses,  not  on  their  own  motion,  but 
on  that  of  the  coroner  or  the  jury,  in  regard 
to  the  homicide  and  their  connection  with  it. 
Adams  v.  State,  17:  468,  58  S.  E.  822,  129 
Ga.  248. 

1221.  Testimony  of  one  under  arrest  on  a 
charge  of  murder,  given  before  the  coroner 
at  the  inquest  upon  the  death  of  his  al- 
leged victim,  in  response  to  the  coroner's 
inquiry  as  to  whether  or  not  he  wanted  to 
testify,  is  not  admissible  against  him  at 
his  trial,  if  he  was  not  informed  that  he 
need  not  testify  or  that  his  testimony  might 
be  used  against  him.  Maki  v.  State,  33: 
465,    112    Pac.    334,    18   Wyo.   481. 

( Annotated ) 
Testimony  before  grand  jury. 

1222.  Statements  and  declarations  by  a  de- 
fendant in  a  criminal  action,  in  denial  of 
guilt,  while  a  witness  before  a  grand  jury, 
are  not  confessions  within  the  rule  requir- 
ing them  first  to  be  shown  to  have  been 
made  voluntarily  before  tl&ey  are  compe- 
tent evidence  against  him.  State  v.  Camp- 
bell, 9:  533,   85   Pac.   784,  73   Kan.   688. 

(Annotated) 

1223.  The  fact  that  testimony  given  before 
the  grand  jury  by  a  defendant  in  a  criminal 
action  is  in  obedience  to  a  subpoena  does  not 
make  his  statements  or  declarations  involun- 
tary and  therefore  inadmissible  against  him, 
since  his  rights  are  protected  by  his  privi- 
lege to  refuse  to  answer  when  the  answer 
tends  to  incriminate  him.  and  by  the  fail- 
ure to  exercise  these  privileges  his  state- 
ments and  declarations  become  voluntary. 
State  v.  Campbell,  9:  533,  85  Pac.  784,  73 
Kan.  688.  (Annotated) 
By  silence. 

See  also  infra,  1402,  1403. 

1224.  A  statement  by  one  under  arr&st 
charged  with  murder,  on  a  confession  by 
an  accomplice  being  read  to  him  and  on 
being  asked  by  officers  in  whose  custody  he 
was  if  he  wanted  to  make  any  statement  in 
regard  to  it,  that  he  would  make  his  state- 
ment at  the  proper  time  or  that  he  would 
stand  trial  and  tell  his  story  then,  does  not 
show  assent  to  the  statement  of  the  accom- 
plice so  as  to  render  it  admissible  in  evi- 
dence as  a  tacit  confession  under  the  rule 
that  uncontradicted  statements  or  confes- 
sions made  in  the  presence  of  one  accused 
of  crime  are  admissible  in  evidence  if  the 
time,  the  place,  and  the  circumstances  are 
such  as  to  lead  to  the  inference  that  the 
accused  by  his  silence  assented  to  the  truth 
thereof.  O'Hearn  v.  State,  25:  542,  113  N. 
W.    130,   79   Neb.   513. 

Evidence  w^rongfnlly  obtained. 
See  also  supra,  1213. 

1225.  That  a  bottle  of  cocaine  was  ob- 
tained from  the  accused  by  an  officer  who, 
when  he  saw  the  accused  in  the  act  of  selling 
the  same,  rushed  into  his  presence  with  a 
pistol  and  commanded  him  to  throw  up  his 
hands,  searched  him,  and  found  on  his  per- 
son the  bottle  of  cocaine,  does  not  render 
the  bottle  of   cocaine   inadmissible   in   evi- 


EVIDENCE,  IX. 


1163 


dence  on  the  ground  that  it  was  obtained 
by  unlawful  search  of  the  person  and  by 
force  of  threatened  shooting.  State  v.  Sut- 
ter, 43:  399.  76  S.  E.  811,  71  W.  Va.  371. 

1226.  If  officers  armed  with  a  search 
warrant,  upon  presenting  it  at  the  home  of 
one  accused  of  crime,  are  invited  by  his 
mother  to  enter  and  search  the  premises, 
so  that  they  do  not  act  under  the  warrant, 
evidence  obtained  during  the  search  is  not 
inadmissible  against  accused,  although  the 
act  may  have-  been  a  trespass  as  against 
him.  Com.  v.  Tucker,  7:  1056,  76  N.  E.  127, 
189  Mass.  457. 

1227.  Testimony  of  persons  who  make  a 
peephole  into  a  saloon,  as  to  what  they  ob- 
served inside,  and  that  they  took  some  ar- 
ticles from  the  room  and  brought  them  to 
court,  is  not  inadi  .issible  in  a  prosecution 
for  illegal  liquor  selling  as  being  an  un- 
reasonable search  or  seizure,  or  as  compel- 
ling one  to  become  a  witness  against  him- 
self. Cohn  V.  State,  17:  451,  109  S.  W.  1149, 
120  Tenn.  61.  (Annotated) 

1228.  The  admission  of  evidence  showing 
that  one  charged  with  murder  produced 
from  a  hiding  place  a  revolver  similar  to 
that  with  which  the  homicide  was  known 
to  have  been  committed  does  not  violate  the 
rule  excluding  proof  of  an  involuntary  con- 
fession, although  such  production  was  in- 
duced bv  intimidation.  State  v.  Turner,  32: 
772,  109  Pac.  654,  82  Kan.  787. 

(Annotated) 

1229.  That  a  confession  of  guilt  was  se- 
cured by  the  authorities  through  the  trick 
of  admitting  a  friend  of  accused  to  his 
presence,  his  oflfering  to  take  a  letter  froin 
accused  to  his  wife,  and  then  intercepting 
the  letter,  which  contained  the  confession, 
does  not  prevent  its  use  in  evidence  against 
him.  People  v.  Dunnigan,  31:  940,  128  N. 
W.  180,  163  Mich.  349. 

IX.  Admissions. 

(See  aluo  same  heading  in  Digest  L.R.A. 
1-10.) 

From  failure  to  testify,  see  supra,  II.  e,  9. 

Confessions,  see  supra,  VIII. 

Admissibility  ^of  deed  containing  admis- 
sions, see  supra,  786. 

In  reports  of  car  inspectors,  see  supra,  826. 

Weight  of  admission,  see  infra,  2119. 

Prejudicial  error  as  to,  see  Appeal  and  Eb- 
EOR,  1114,  1123. 

Estoppel  by  admissions,  see  Estoppel,  219. 

failure  to  attempt  to  disprove  charges  in 
divorce  suit  as  admission  of  their 
truth,  see  Judgment,  179. 

Showing  admissions  by  cross-examination  of 
party,  see  Witnesses,  79. 

Effect  of  admissions  to  impeach  witness,  see 
Witnesses,  155. 

Evidence  of  admissions  by  administrator  to 
contradict  his  testimony,  see  Wit- 
nesses, 145. 

Bee  also  supra,  690,  818,  877,  967,  1029; 
infra,  1402,  1403;  Witnesses,  114. 

Digest  1-52  I..R.A.(N.S.) 


Of  parties. 

1230.  Confessions  of  adultery,  made  in  the 
country,  cannot  be  given  in  evidence  or  con- 
sidered in  a  suit  for  divorce  for  such  of- 
fense. Trough  V.  Trough,  4:  1185,  53  S.  E. 
630,  59  W.  Va.  464. 

1231.  The  publication  in  a  newspaper 
owned  and  controlled  by  a  corporation  of 
which  one  who  promised  to  give  a  specific 
sum  of  money  to  a  Young  Men's  Christian 
Association  was  president  and  principal 
stockholder,  and  with  his  knowledge,  and 
without  repudiation  by  him,  of  a  list  of 
subscribers  to  the  association,  embracing  his 
own  subscription,  is  relevant  as  tending  to 
show  an  admission  of  the  promiser  to  donate 
the  particular  sum  to  the  association. 
Young  Men's  Christian  Asso.  v.  Estill,  48: 
783,  78  S.  E.  1075,  140  Ga.  291. 

1232.  The  conduct  of  a  wife  when  her  hus- 
band made  declarations  in  her  presence  to 
the  effect  that  all  his  property  was  made 
before  his  marriage  is  admissible  against 
her  in  a  proceeding  to  establish  her  claim 
to  part  of  the  estate  as  community  prop- 
erty. Re  Pepper,  31:  1092,  112  Pac.  62,  158 
Cal.  619. 

1233.  Statements  made  by  a  person  after 
a  collision  with  another  on  the  public  high- 
way are  competent  as  admissions,  in  an 
action  against  him  for  the  injuries  result- 
ing from  such  collision.  Smith  v.  Barnard 
(N.  J.  Err.  &  App.)  41:  322,  81  Atl.  734, 
82  N.  J.  L.  468. 

1234.  Upon  the  question  of  the  liability  of 
a  carrier  for  injury  to  live  stock  in  tran- 
sit, evidence  is  admissible  of  admissions  by 
the  owner  to  a  conductor  of  the  train,  that 
his  agent  in  loading  the  car  had  put  too 
many  animals  in  it.  Colsch  v.  Chicago,  M. 
&  St.  P.  R.  Co.  34:  1013,  127  N.  W.  198,  149 
Iowa,  176. 

1235.  Evidence  of  an  admission  by  the 
chil-l's  parent,  since  deceased,  to  the  effect 
that  it  fell  off  a  box  and  was  injured,  is 
not  admissible  in  an  action  by  it  to  hold 
a  municipal  corporation  liable  for  the  injury 
on  the  theory  that  it  was  caused  by  a  de- 
fective sidewalk.  Neff  v.  Cameron,  18: 
320,   111   S.  W.  1139,  213  Mo.  350. 

—  In  action  for  personal  injuries. 

1236.  The  declaration  of  a  minor  as  to  his 
age  are  admissible  in  evidence  in  an  action 
by  him  to  hold  his  employer  liable  for  per- 
sonal injuries  because  he  was  employed  con- 
trary to  the  provision  of  a  statute  making 
it  a  misdemeanor  to  employ  minors  of  less 
than  a  specified  age.  Koester  v.  Rochester 
Candy  Works,  19:  783,  87  N.  E.  77,  194  N-. 
Y.  92. 

1237.  Admissions  made  by  one  injured  by 
another's  negligence  are  admissible  in  evi- 
dence against  him  at  the  trial  without  call- 
ing his  attention  to  them  while  he  is  on 
the  stand,  as  would  be  necessary  to  render 
them  admissible  for  purposes  of  impeach- 
ment against  an  ordinary  witness.  Adams 
V.  Chicago  G.  W.  R.  Co.  42:  373,  135  N.  W. 
21,  156  Iowa,  31. 

1238.  The  admission  of  an  employee  in- 
jured through  the  alleged  defective  condi- 
tion of  the  brake  on  a  car,  that  it  operated 


1164 


EVIDENCE,  IX. 


when  he  undertook  to  loosen  it,  to  permit 
the  car  to  be  set  in  motion,  does  not  show 
that  it  was  in  condition  to  stop  the  car. 
Republic  Elevator  Co.  v.  Lund,  45:  707, 
196  Fed.  745,  116  C.  C.  A.  373. 
—  In  criminal  prosecution. 
See  also  supra,  1224. 

1239.  Voluntary  statements  of  fact,  made 
by  a  defendant  in  a  criminal  action,  which 
do  not  tend  to  establish  his  guilt,  but  which 
are  exculpatory  in  their  nature,  are  com- 
petent evidence  against  him  as  admissions 
of  a  party.  State  v.  Campbell,  9:  533,  85 
Pac.  784,  73  Kan.  688. 

1240.  Upon  trial  for  operating  a  pool 
room,  evidence  is  admissible  that  defendant 
had  pleaded  guilty  to  the  offense  in  police 
court.  Ehrlick  v.  Com.  10:  995,  102  S.  W. 
289,  125  Ky.  742. 

1241.  Upon  the  question  of  perjury  in 
swearing  that  certain  voters  lived  at  the 
place  from  which  they  registered,  evidence 
is  admissible  that,  at  the  time  accused  in- 
structed them  to  register,  he  told  them  that 
if  any  harm  came  he  vrould  see  that  they 
got  out.  People  v.  Cahill,  20:  1084,  86  N. 
E.  39,  193  N.  Y.  232. 

1242.  Where  one  who  a  person  on  trial  for 
perjury  falsely  swore  was  properly  regis- 
tered as  a  voter  from  a  certain  place  was 
disqualified  both  because  of  nonage  and  non- 
residence,  evidence  of  an  admission  by  ac- 
cused, prior  to  the  other's  registry,  that  he 
was  not  qualified,  may  be  considered  by  the 
jury  as  relating  to  either  disqualification. 
People  V.  Cahill,  20:  1084,  86  N.  E.  39,  193 
N.  Y.  232. 

Of  interested  third  persons  generally. 

1243.  One's  statement  out  of  court  that 
his  injury  is  due  to  his  own  fault  is  admis- 
sible in  evidence  against  him  in  an  action 
to  hold  another  liable  for  it.  Rudd  v. 
Byrnes,  26:  134,  105  Pac.  957,  156  Cal.  636. 

1244.  Upon  the  question  of  fixing  rates  for 
a  telephone  company,  evidence  is  not  admis- 
sible of  a  circular  issued  by  an  investment 
company,  purporting  to  state  the  earnings 
of  the  telephone  company,  although  the  two 
companies  have  the  same  president.  Home 
Teleph.  Co.  v.  Carthage,  48:  1055,  139  S.  W. 
547,  235  Mo.  644. 

1245.  The  admissions  against  interest  of 
the  owner  of  an  estate  are  admissible  in 
evidence  against  his  trustee  in  bankruptcy, 
subsequently  appointed.  Smith  v.  Au  Gres 
Twp.  9:  876,  150  Fed.  257,  80  C.  C.  A.  145. 

1246.  Upon  a  joint  trial,  the  whole  of  a 
statement  tending  to  prove  the  guilt  of  the 
party  making  it  is  admissible  in  evidence, 
although  it  contains  matter  prejudicial  to 
a  codefendant,  the  jury  being  cautioned  that 
it  is  evidence  only  against  the  party  making 
it.  Rex  V.  Martin,  2  B.  R.  C.  336,  9  Ont.  L. 
Rep.  218.  (Annotated) 
Of  former  oinrner. 

1247.  Upon  the  question  of  the  right  of  a 
tenant  to  remove  improvements  against  a 
remote  grantee  of  the  reversion  with  notice, 
evidence  is  admissible  of  admissions  and 
dealings  between  the  lessees  and  intermedi- 
ate grantees.  Searle  v.  Roman  Catholic 
Bishop,  25:  992,  89  X.  E.  809,  203  Mass.  493. 
Digest  1-52  I..B.A.(N.S.) 


1248.  In  an  action  by  a  bona  fide  holder 
of  a  promissory  note  in  which  the  defense 
is  an  illegal  and  immoral  consideration, 
evidence  of  a  conversation  with  the  payee 
of  the  note,  in  the  nature  of  an  admission 
of  the  consideration,  occurring  after  the 
transaction,  is  admissible.  E.xchange  Nat. 
Bank  v.  Henderson,  51:  549,  77  S.  E.  36, 
139  Ga.  260. 

Of  agent  or  servant. 

Admissibility  of  agent's  report,  see  supra, 
876. 

Cure  of  error  in  admitting  in  evidence  ad- 
missions of  attorneys,  see  Appeal  and 
Ebbor,  841. 

See  also  Witnesses,  150. 

1249.  It  is  as  competent  to  prove  the  ad- 
mission by  one  that  he  is  the  agent  of 
another,  where  that  is  the  fact  sought  to 
be  established  against  him,  as  it  is  to  prove 
any  other  admission  against  his  interest. 
Blake  v.  Bremyer,  35:  165,  115  Pac.  538,  84 
Kan.   708.  (Annotated) 

1250.  An  admission  by  a  servant  whose 
negligence  caused  injury  to  another,  made 
long  after  the  accident,  is  not  admissible 
in  evidence  against  the  master,  but  is  ad- 
missible against  the  .servant  himself. 
Illinois  C.  R.  Co.  v.  Houchins,  i:  375,  89  S. 
W.  530,  121  Ky.  526. 

1251.  Evidence  of  a  declaration  by  the  op- 
erator of  a  derrick  used  in  unloading  steel 
rails  from  a  car,  upon  witnessing  an  acci- 
dent to  plaintiff  by  the  dropping  of  the  lever 
or  boom  rail,  that  "the  damn  thing  was 
about  wore  out  anyhow,  and  they  would 
keep  running  it  until  they  killed  somebody,' 
is  not  competent  as  an  admission  made  by 
an  agent  of  the  defendant  with  respect  to 
an  act  done  by  him  while  engaged  in  the 
line  of  his  service.  Illinois  C.  R.  Co.  v. 
Lowery,  49:  1149,  62  So.  952,  184  Ala.  443. 

1252.  In  an  action  against  the  owner  of  a 
railroad  to  recover  damages  for  injury  to  a 
traveler  at  a  street  crossing  by  the  negli- 
gence of  the  lessee,  who  was  operating  the 
road,  evidence  is  not  admissible  of  a  set- 
tlement by  the  lessee  with  the  owner  of  the 
vehicle  in  which  the  injured  person  was 
riding,  since  the  act  was  beyond  the  scope 
of  the  agency,  and  public  policy  requires 
that  the  settlement  of  claims  shall  be  en- 
couraged, without  the  men^e  of  the  set- 
tlement requiring  justification  in  other 
suits.  Rookardt  v.  Atlanta  &  C.  Air  Line 
R.  Co.  27:  435,  65  S.  E.  1047,  84  S.  C.  190. 

1253.  Evidence  is  admissible  in  a  suit  on  a 
renewal  note  of  declarations  and  admis- 
sions of  one  having  possession  of  the  origi- 
nal, which  was  signed  and  delivered  sub- 
ject to  a  condition,  made  at  the  time  he 
secured  the  renewal,  to  the  efl'ect  that  the 
condition  existed,  although  it  was  made  in 
the  absence  of  the  payee,  and  there  is  no 
proof  that  he  had  any  authority  to  do 
anything  except  to  get  an  unconditional 
renewal.  Smith  v.  Dotterweich,  33:  89a, 
93  N.  E.  985,  200  N.  Y.  299. 

Of  attorney. 

1254.  An  admission  by  attorneys  for  an 
accused  at  the  preliminary  hearing,  to  pre- 
vent a  continuance  to  enable  the  state  to 


EVIDENCE,  X.  a. 


1165 


secure  certain  evidence,  and  to  secure  a 
hearing  without  delay,  is  not  admissible 
against  accused  at  the  trial,  where  the  state 
has  secured  the  evidence  which  it  sought. 
State  V.  Butler,  25:  169,  65  S.  E.  993,  151 
N.  C.  672.  (Annotated) 

1255.  Upon  the  question  of  the  validity  of 
a  defense  of  fraud  to  the  enforcement  of  a 
foreign  judgment,  evidence  is  not  admissible 
that  defendant's  attorney  had  stated,  after 
the  rendition  of  the  judgment,  that  he  knew 
of  the  facts  out  of  which  the  claim  arises, 
but  did  not  base  a  defense  upon  them  be- 
cause he  did  not  believe  it  good.  Mahoney 
V.  State  Ins.  Co.  9:  490,  110  N.  W.  1041,  133 
Iowa,  570. 

Of  executor. 

1256.  Evidence  of  an  executor  that  he  un- 
duly influenced  the  execution  of  the  will  is 
not  admissible  against  the  devisees  and 
legatees,  to  prevent  its  probate.  Re  Fowler, 
38:  745,  72  S.  E.  357,  156  N.  C.  340. 

Of  coheir. 

1257.  In  an  action  to  enforce  a  promissory 
note  against  an  estate,  evidence  is  not  ad- 
missible that,  before  purchasing  the  note, 
plaintiff  showed  it  to  certain  heirs  at  law, 
one  of  whom  was  administrator,  and  asked 
if  it  was  genuine,  to  which  no  reply  was 
made,  since  they  could  not  by  their  admis- 
sions bind  the  other  heirs.  Stitzel  v.  Mil- 
ler. 34:  1004,  95  N.  E.  53,  250  III.  72. 

Of  partner. 

1258.  An  admission  by  one  partner,  made 
after  dissolution,  of  the  existence  of  a  debt 
a.Tainst  the  firm,  or  a  settlement  made  with 
11  im  finding  a  debt  against  it,  the  other 
partner  not  being  present  when  such  ad- 
mission or  settlement  is  made,  does  not 
bind  the  latter,  and  is  not  admissible  in 
evidence  against  him.  Burdett  v.  Hayman, 
15:  1019,  00  S.  E.  497,  63  W.  Va.  515. 

As  against  surety. 

1259.  The  0.  K.  by  an  insurance  agent  who 
is  required  to  remit,  for  business  done,  with- 
in two  months  after  the  expiration  of  the 
month  in  which  it  is  transacted,  of  a  state- 
ment of  amount  due  by  him  to  the  company 
within  such  time,  after  he  has  resigned  from 
his  position,  is  admissible  in  evidence 
against  his  surety  in  an  action  to  hold  him 
liable  for  a  defalcation,  since  the  duty  to 
remit  did  not  terminate  with  the  resigna- 
tion, and  statement  as  to  the  amount  due, 
made  within  the  time  during  which  his 
contract  required  him  to  make  remittances, 
was  part  of  the  res  gestce.  United  Ameri- 
can F.  Ins.  Co.  V.  American  Bonding  Co. 
40:  661,  131  N.  W.  994,  146  Wis.  573. 

(Annotated) 
Next  friend. 
Admissibility    for    purpose    of    impeaching 

next  friend  as  witness,  see  Witnesses, 

166. 

1260.  A  child  seeking  to  recover  damages 
for  personal  injuries  is  not  bound  by  ad- 
missions made  after  the  injury  and  before 
suit,  by  one  who  becomes  its  next  friend  for 
the  purpose  of  bringing  the  suit.  NeflT  v. 
Cameron,  18:  320,  111  S.  W.  1139,  213  Mo, 
350. 

Digest  1-52  L.R.A.(N.S.) 


In  pleadings. 

1261.  One's  answer  in  one  case  is  admis- 
sible against  him  in  another  case  between 
the  same  parties  as  an  admission,  but  it 
is  not  'conclusive,  being  subject  to  explana- 
tion. Valley  Planting  Co.  v.  Wise,  26:  403, 
123  S.  W.  768,  93  Ark.  1, 

1262.  A  plaintiff,  in  an  action  for  damages 
for  personal  injuries  caused  by  another's 
negligence,  may  put  in  evidence  a  clause  of 
the  answer  which  admits  the  injury,  with- 
out putting  in  the  whole  paragraph,  with 
its  qualifying,  explanatory  matter.  Sawyer 
v.  Roanoke  R.  &  Lumber  Co.  22:  200,  58  S. 
E.  598,  145  N.  C.  24. 

1263.  The  original  petition  in  an  action 
upon  a  promissory  note,  which  sets  out  the 
chain  of  title  from  the  maker  to  plaintiff, 
is  admissible  in  evidence  after  an  amend- 
ment inserting  a  link  in  the  chain  imme- 
diately before  plaintiff,  where  the  admis- 
sion confined  in  it  is  inconsistent  with 
testimony  at  the  trial  as  to  the  facts  of 
plaintiff's  purchase.  Arnd  v.  Aylesworth, 
29:  638,  123  N.  W.  1000,  145  Iowa,  185. 

1264.  The  introduction  in  evidence  by  plain- 
tiff, in  an  action  for  death  of  a  railroad 
brakeman  by  the  giving  way  of  a  crosspiece 
when  he  was  attempting  to  climb  down  on  a 
car  to  reach  a  coupling,  of  an  admission  in" 
the  answer  that  he  was  attempting  to 
climb  down  over  the  front  end  of  a  moving 
car,  is  not  sufficient  to  change  the  whole 
theory  of  the  complaint,  and  admit  that  de- 
ceased was  attempting  to  alight  from  the 
front  end  of  a  moving  train.  Wallace  v. 
Seaboard  Air  Line  R.  Co.  13:  384,  54  S.  E. 
399,  141  N.  C.  646. 

1265.  Where  pleadings  are  required  to  be 
verified,  a  statement  in  one  paragraph  of  an 
answer  that  an  injury  for  which  defendant 
was  sought  to  be  held  liable  by  its  servant, 
under  a  statute  making  the  master  liable 
for  injuries  caused  by  its  shift  boss,  was 
caused  by  the  negligence  of  the  fellow  serv- 
ant, is  admissible  in  evidence,  although  the 
answer  also  denies  that  plaintiff  was  in- 
jured while  in  the  discharge  of  his  duties, 
and  that  the  servant  who  is  alleged  to  have 
caused  the  injury  was  a  shift  boss,  and  that 
any  act  of  his  caused  the  injury.  Johnson 
v.  Butte  &  Superior  Copper  Co.  48:  938,  108 
Pac.  1057,  41  Mont.  158. 

X.  Hearsay;    declarations;    res    gestce. 

a.  In  general;  pedigree;  reputation. 

(See  also   same  heading   in  Digest  L.R.A. 
1-10.) 

Admissibility    of    ancient    instruments,    see 

supra,    743-746. 
Street  car  transfers  as  part  of  res  gestcB, 

see   supra,   873. 
Agent's   report   as   part   of   res   gestce,   see 

supra,  876. 
Failure  to  object  to  admission  of  hearsay 

evidence,  see  Appeal  and  Error,  348. 
Review  of  discretion  as  to,  see  Appeal  and 

Error,  602,  609. 


1166 


EVIDENCE,  X.  a. 


Prejudicial   error    as    to,    see    Appeal   and 

Errob,   1094,    1162. 
See  also  supra,  1029. 

1266.  The  rule  which  admits  the  whole  of  a 
conversation  in  evidence  when  part  is  ad- 
mitted does  not  apply  to  immaterial  parts 
of  a  conversation  relating  to  a  transaction 
which  occurred  when  the  speaker  was  not 
present,  so  that  his  statements  were  hear- 
sav.  Jaquith  v.  Worden,  48:  827,  132  Pac. 
33^  73  Wash.  349. 

1267.  Evidence  of  the  vicious  acts  of  a 
cow  on  the  morning  after  she  has  indicted 
injury  on  a  person  is  not  inadmissible,  in  an 
action  to  hold  her  owner  liable  for  the  in- 
jury, on  the  theory  that  they  are  not  part 
of  the  res  gestce.  Thornton  v.  Layle,  17: 
1233,  111  S.  W.  279,  33  Ky.  L.  Rep.  382. 

(Annotated) 

1268.  One  suing  on  a  note  which  had  been 
obtained  from  the  maker  by  fra«d  cannot 
be  permitted  to  testify  that  he  bouglit  it 
before  it  was  due,  when  it  is  conceded  that 
he  never  saw  it  and  knew  nothing  of  its 
terms  except  as  he  was  informed  by  one 
who  may  have  acted  as  his  agent  in  the 
transaction.      Arnd   v.   Avlesworth,   29:  638, 

.132   N.   W.   1000,   145   Iowa,   185. 

Pedigree;  legitimacy;  marriage. 

Evidence  of  general  repute  as  to  marriage, 
see  infra,  1276. 

Communication  to  attorney  as  to  legiti- 
macy, see  infra,  1306. 

See  also  infra,  1375,  1510. 

1269.  The  declarations  of  a  person's  father 
are  not  admissible  to  prove  that  a  woman, 
at  the  time  the  declarations  were  made  the 
wife  of  another,  was  such  person's  mother. 
Cliampion  v.  McCarthy,  11:  1052,  81  N.  E. 
808.  228  111.  87. 

1270.  Testimony  as  to  declarations  of  a 
witness  who  is  living  and  testifies  in  the 
case  is  inadmissible  upon  the  question  of 
pedigree.  Champion  v.  McCarthy,  11:  1052, 
81  N.  E.  808,  228  111.  87. 

1271.  The  declarations  of  one  having  suffi- 
cient intelligence  to  take  care  of  himself 
and  remember  his  friends,  relatives,  and  ac- 
quaintances are  admissible  upon  the  ques- 
tion of  pedigree,  although  he  has  not  suffi- 
cient mental  capacity  to  transact  business 
or  manage  and  control  property.  Champion 
V.  McCarthy,  11:  1052,  81  N.  E.  808,  228  111. 
87. 

1272.  Preliminary  proof  of  relationship  is 
necessary  to  support  declarations  tending  to 
establish  pedigree.  Vantine  v.  Butler,  39: 
1177,  144  S.  W.  807,  240  Mo.  521. 

1273.  Sufficient  extrinsic  proof  of  relation- 
ship to  support  declarations  of  a  woman 
since  deceased,  that  a  child  was  the  daugh- 
ter of  a  man  to  whose  estate  she  was  at- 
tempting to  establish  heirship,  exists  where 
it  is  shown  that  the  woman,  who  was  the 
wife  of  the  man,  was  driven  from  home 
pregnant,  and  shortly  after  bore  a  daughter, 
and  that,  after  staying  in  the  neighborhood 
of  her  former  home  for  several  years,  dis- 
Digest  1-52  L.R.A.(N.S.) 


appeared  with  the  announced  intention  of 
going  to  a  certain  place,  and  was  never 
again  seen  in  that  community;  that  shortly 
afterwards  a  woman  witli  her  physical  char- 
acteristics, habits,  and  beliCiS  appeared  with 
a  child  corresponding  to  the  one  which  had 
disappeared,  arrived  at  a  town  near  wliere 
the  woman  announced  she  was  going,  and 
made  the  declarations  in  controversy,  while 
the  father  and  members  of  his  family  recog- 
nized that  the  missing  child  was  living  in 
the  locality  to  which  the  woman  went.  Van- 
tine  V.  Butler,  39:  1177,  144  S.  W.  807,  240 
Mo.  521. 

1274.  Declarations  by  a  man  since  deceased, 
to  his  daughter,  tiiat  he  has  a  brother  liv- 
ing at  a  certain  place,  are,  if  made  during 
the  brother's  lifetime,  admissible  in  evidence 
to  prove  the  claim  of  the  daughter  to  share 
in  such  brother's  estate,  although  tiiey  are 
proved  by  the  claimant  herself,  and  no  other 
evidence  of  her  relationship  to  the  brotiier 
has  been  offered.  Re  Hartman,  36:  530,  107 
Pac.  105,  157  Cal.  206.  (Annotated) 

—  Of  animal. 

1275.  The  rule  applicable  to  civil  actions 
for  damages  for  killing  dogs,  allowing  the 
introduction  of  evidence  showing  the  pedi- 
gree, traits,  habits,  and  reputation  of  a  par- 
ticular dog  which  is  killed,  is  not  applicable 
in  a  criminal  prosecution  for  the  malicious 
killing  of  the  dogs,  unless  knowledge  of  the 
dogs'  pedigrees,  etc.,  is  brought  home  to  the 
defendant.  State  v.  Churchill,  19:  835,  98 
Pac.  853,  15  Idaho,  645. 

Reputation. 

Evidence  of  character  or  reputation,  see 
infra,  XI.  c. 

Sufficiency  of  evidence  as  to,  to  sustain  con- 
viction of  keeping  disorderly  house,  see 
infra,   2411,   2412,  $^ 

See  also  infra,  2212. 

1276.  Evidence  of  general  reptite  in  the 
neighborhood  is  admissible  on  the  trial  of  a 
suit  involving  the  issue  of  marriage  vel  non. 
Drawdy  v.  Hesters,  15:  190,  60  S.  E.  451,  130 
Ga.  161. 

1277.  Where  the  possession  of  land  by  two 
of  three  tenants  in  common,  who  are  not 
the  holders  of  the  legal  title,  is  shown,  it 
is  competent  to  prove  the  neighborhood  no- 
toriety of  their  claim  of  ownership.  Inter- 
national Harvester  Co.  v.  Myers,  39:  528, 
121  Pac.  500,  86  Kan.  497. 

1278.  In  prosecutions  for  keeping  a  house 
of  ill  fame,  it  is  competent  to  introduce 
evidence  of  the  general  reputation  of  the 
house  in  the  neighborhood  in  which  it  is 
situated,  as  to  its  being  a  place  where 
lewd  and  lascivious  persons  of  both  sexes 
congregate  for  the  purpose  of  unlawful  co- 
habitation and  sexual  intercourse.  Put- 
man  V.  State,  46:  593,  132  Pac.  916,  9  Okla. 
Crim.  Rep.  535. 

Boundaries. 

Declarations  of  former  owner  as  to,  see  in- 
fra,  1453. 
Age  or  death. 
See  Witnesses,  147. 


EVIDENCE,  X.  b. 


1167 


b.  Confidential   communications.         l 

{See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

See   also    Discovery    and    Inspkctiox,    14,  ' 
15. 

1279.  If  a  reporter  of  a  newspaper  is  sum- 
moned to  testify  before  a  court  of  com- 
petent jurisdiction,  and  is  asked  as  to  the 
person  from  whom  he  derived  information 
in  regard  to  certain  facts  stated  by  him  in 
a  newspaper  article,  such  evidence  being 
material  to  the  issue  on  trial,  he  cannot 
claim  exemption  as  a  witness  from  answer- 
ing the  question  on  the  ground  that  he 
had  received  the  information  under  a  prom- 
ise that  he  would  not  divulge  the  name  of 
his  informant,  that  to  do  so  would  subject 
him  to  ridicule  and  contempt,  and  that  it 
would  cause  him  to  lose  his  position  as  a 
newspaper  reporter.  Hamilton  v.  Plunkett, 
35:  583,  70  S.  E.  781,  136  Ga.  72. 

(Annotated) 

1280.  The  language  of  Kan.  Gen.  Stat. 
1901,  §  5535,  providing  that  "no  grand  juror 
shall  disclose  any  evidence  given  before  the 
grand  jury,  nor  the  name  of  any  witness 
who  appeared  before  them,  except  when 
lawfully  required  to  testify  as  a  witness 
in  relation  thereto."'  is  not  limited  by  the 
provisions  of  §  5533,  permitting  such  evi- 
dence to  impeach  the  testimony  of  a  wit- 
ness on  his  trial  for  perjury;  and  such  dis- 
closure is  permissible  whenever  necessary 
for  the  furtherance  of  justice  or  for  the 
protection  of  public  or  individual  rights. 
State  V.  Campbell,  9:  533,  85  Pac.  784,  73 
Kan.  688. 

To  spiritnal  adviser. 

1281.  The  spiritual  advisor  of  an  injured 
person  who  is  called  to  act  as  interpreter 
in  a  transaction  looking  to  a  release  of 
liability  of  the  one  causing  the  injury  is 
not  incompetent  to  testify  to  the  facts  bear- 
ing upon  the  obtaining  of  it.  Blossi  v.  Chi- 
cago &  N.  W.  R.  Co.  26:  255,  123  N.  W.  3G0, 
144  Iowa,  697. 

To  physician. 

Waiver   of   privilege,   see   infra,   1322-1337. 

Privilege  of  records  of  public  insane  asy- 
lum containing  information  concerning 
patients,  see  Records  and  Recording 
Laws,  7. 

1282.  The  physician  and  attorney  of  a  tes- 
tator are  not  incompetent  to  testify  in  a  pro- 
ceeding to  probate  his  will  as  to  facts  ascer- 
tained in  their  attendance  upon  him  in  their 
professional  capacity.  Re  Shapter,  6:  575, 
85  Pac.  688,  35  Colo.  578. 

1283.  Evidence  by  the  attending  physician 
of  an  insured  is  admissible  in  an  action  by 
the  beneficiary  to  recover  on  the  policy,  if 
Che  contract  provides  that  he  may  testify. 
National  Annuity  Asso.  v.  McCall,  48:  418, 
146  8.  W.  125.  103  Ark.  201. 

1284.  An  attending  physician  of  a  hospital, 
who  is  the  keeper  of  and  has  charge  of 
the  records  of  the  institution  which  are  re-  1 
quired  to  be  kept  by  ordinance,  cannot  tes- 
tify as  to  the  diagnosis  of  a  patient's  case 
Digest  1-52  I..B.A.(N.S.) 


as  shown  by  such  physician's  record.  Smart 
V.  Kansas  City,  14:  565,  105  S.  W.  709,  208 
Mo.    162.  (Annotated) 

—  'WIio  are  Avithin  prohibition  against 

testifying. 
In    case    of    communication   with    attorney, 
see  infra,  1298. 

1285.  Physicians  who  voluntarily  attend 
victims  of  a  railroad  wreck  are  within  the 
statute  making  attending  physicians  incom- 
petent to  testify  as  to  facts  learned  from 
a  patient  during  their  professional  treat- 
ment of  him.  Epstein  v.  Pennsylvania  R. 
Co.  48:  394,  156  S.  W.  699,  250  Mo.  1. 

1286.  Assistant  physicians  and  surgeons  in 
a  hospital  to  which  the  plaintiff  is  taken 
for  treatment,  who  assist  in  the  treatment 
and  amputation  of  her  leg,  are,  by  virtue 
of  their  appointment,  within  the  provision 
of  a  statute  forbidding  physicians  to  dis- 
close information  acquired  while  attending 
patients  in  a  professional  capacity;  and  the 
statute  applies  as  well  when  the  information 
is  acquired  from  a  poor  or  pay  patient  in  a 
private  residence  or  hospital,  or  from  a 
charity  patient  in  a  public  hospital.  Smart 
V.  Kansas  City,  14:  565,  105  S.  W.  709,  208 
Mo.   162. 

1287.  A  physician  who  is  rightfully  in  a 
hospital  exercising  authority  over  the  pa- 
tients, examining  their  persons,  advising 
treatment,  and  removing  patients  from  their 
wards  to  the  operating  room  for  clinical  pur- 
poses, with  the  knowledge  of  those  in  charge 
of  the  institution;  and  who  examines  a 
patient's  leg  and  advises  a  physician  in 
charge  of  the  institution,  and  the  chief  at- 
tendant upon  the  patient,  to  amputate  the 
patient's  leg,  is  the  latter's  physician,  and 
incompetent  to  testify  as  to  the  condition 
of  her  leg,  where  there  is  no  evidence  to 
show  that  he  made  the  examination  in 
search  for  subjects  for  his  clinics,  and  not 
in  the  patient's  interest.  Smart  v.  Kansas 
City,  14:  565,  105  S.  W.  709.  208  Mo.   162. 

1288.  A  physician  employed  by  one  whose 
negligence  is  alleged  to  have  caused  an  ac- 
cident, to  be  present  at  an  operation  upon 
the  injured  person,  without  the  latter's  con- 
sent, is  not  incompetent  to  testify  to  what 
he  observed  there,  under  a  statute  provid- 
ing that  no  physician  who  obtains  such  in- 
formation by  reason  of  his  employment 
shall  be  allowed  to  disclose  any  confiden- 
tial communication  intrusted  to  him  in  his 
professional  capacity,  and  necessary  to  en- 
able him  to  discharge  the  functions  of  his 
office.  Woods  V.  Lisbon,  16:  886,  116  N.  W. 
143,   138   Iowa,  402.  (Annotated) 

—  Subject-matter    of    communications 

or  information. 
Of   communication    to    attorney,    see   infra, 

1297-1304. 
Of    communication    between    husband    and 

wife,  see  infra.   1312-1316. 

1289.  The  attending  physician  of  an  in- 
jured person  is  competent  to  testify  to  the 
facts  of  the  securing  from  him,  by  the  one 
responsible  for  the  injury,  of  a  release  fronr 
liability  therefor.  Blossi  v.  Chicago  &  N. 
W.  R.  Co.  26:  255,  123  N.  Vv^  360,  144  Iowa, 
697. 


1168 


EVIDENCE,  X.  b. 


1290.  A  statute  forbidding  the  disclosure 
of  privileged  communications  does  not  pre- 
vent the  attending  physician  from  testify- 
ing as  to  the  mental  condition  of  the  tes- 
tator, in  a  contest  between  beneficiaries 
and  heirs  over  the  probate  of  his  will.  Re 
Gray,  33:  319,  130  N.  W.  746,  88  Neb.  835. 

1291.  A  physician  who  treats  a  patient  for 
injuries  received  from  a  fall  is  incompetent 
to  testify  to  a  tuberculous  condition  of  the 
knee  which  necessitated  a  subsequent  am- 
putation of  the  patient's  leg.  Smart  v. 
Kansas  City,  14:  565,  105  S.  W.  709,  208  Mo. 
162. 

1292.  Where,  by  statute,  information 
gained  by  an  attending  physician  is  privi- 
leged, one  called  to  attend  a  person  injured 
by  another's  negligence  cannot,  in  an  action 
to  hold  the  negligent  person  answerable  in 
damages  for  the  death  of  the  patient,  give 
the  result  of  an  autopsy  which  he,  without 
authority,  performed  upon  the  patient,  and 
his  conclusions  therefrom.  Thomas  v.  Town- 
ship of  Byron,  38:  1186,  134  N.  W.  1021, 
168  Mich.  593.  (Annotated) 
—  Mode  or  form  of  commnnication  or 

acquisition  of  information. 

1293.  A  statement  of  fact  or  opinion  ex- 
pressed by  a  physician  to  a  patient  in  the 
course  of  a  professional  visit,  based  upon 
a  relation  of  facts  by  the  patient,  or  upon 
a  physical  examination  by  the  physician,  ia 
a  part  of  the  same  transaction,  and  is  as 
much  privileged  as  the  facts  or  statements 
of  the  patient  on  which  it  is  based.  Bryant 
v.  Modern  Woodmen  of  America,  27:  326,  125 
N.  W.  621,  86  Neb.  372.  (Annotated) 

1294.  The  physician  of  a  testator  is  not 
permitted  to  give  his  opinion  in  a  will 
contest,  upon  testator's  mental  capacity, 
which  is  based  upon  statements  by  testator 
to  the  physician,  or  the  latter's  observation 
of  the  patient  while  visiting  him  profes- 
sionally for  the  purpose  of  giving  him 
treatment.  Auld  v.  Cathro,  32:  71,  128 
N.  W.  1025,  20  N.  D.  4GL  (Annotated) 

1295.  Information  acquired  by  looking  at  a 
patient,  or  by  examination,  is  as  much  with- 
in the  statute  prohibiting  physicians  from 
disclosing  information  received  in  their  pro- 
fessional capacity  as  the  verbal  communica- 
tion which  took  place  between  them.  Smart 
V.  Kansas  City,  14:  565,  105  S.  W.  709,  208 
Mo.  162. 

To  attorney. 

Waiver  of  privilege,  see  infra,  1338. 

See   also  supra,   1282;    infra,   1316. 

1296.  An  attorney  may  be  compelled  to 
produce  in  evidence  any  paper  or  record  in 
his  possession  belonging  to  his  client,  which 
the  client  himself  could  be  compelled  to 
produce.  Pearson  v.  Yoder,  48:  334,  134  Pac. 
421,  39  Okla.  105. 

1297.  Communications  made  to  one,  who  is 
nsed  as  a  confidential  agent  to  enable  him 
to  write  a  letter  which  the  communicant, 
on  account  of  inability  to  understand  the 
language,  is  unable  to  write,  to  an  attorney 
for  the  purpose  of  employing  him  in  the  de- 
fense of  the  communicant,  who  is  accused 
of  crime,  are  privileged  communications, 
although  the  letter  does  not  reach  the  at- 
Digest  1-52  L.B.A.(N.S.) 


torney,  but  is  delivered  by  tlio  confidential 
agent  to  the  police  officers;  and  neitlier  the 
communication  nor  the  letter  is  admissible 
in  evidence.  State  v.  Loponio  (N.  J.  Err. 
&  App.)  49:  1017,  88  Atl.  1045,  85  N.  J.  L. 
357. 

—  W^ho  are  \irithin  prohibition  against 

testifying. 
In  case  of  communication  to  pliysician,  see 
supra,  1285-1288. 

1298.  An  attorney  is  employed  in  his  pro- 
fessional capacity  so  that  he  cannot  testify 
as  to  communications  from  his  client,  wlieu 
he  is  voluntarily  listening  to  a  client's  pre- 
liminary statement,  although  no  retainer 
has  been  promised,  paid,  charged,  or  de- 
manded, and  the  services  are  intended  to 
be  gratuitous.  Evans  v.  State,  34:  577,  115 
Pac.  809,  6  Okla.  Crim.  Rep.  643. 

(Annotated) 

—  Subject-matter  of  communications. 
Of  communication  to  physician,  see  supra, 

1289-1292. 
Of    communication    between    husband    and 
wife,   see  infra,   1312-1316. 

1299.  The  privilege  with  respect  to  commu- 
nications to  an  attorney  does  not  attach  Lo 
statements  made  by  him  or  testator  during 
the  preparation  of  a  will,  in  a  proceeding  to 
contest  the  will  on  the  ground  of  coercion, 
duress,  and  undue  influence,  either  at  com- 
mon law,  or  under  a  statute  merely  declara- 
tory of  the  common-law  privileges.  Re 
Young,  17:  108,  94  Pac.  731,  33  Utah,  382. 

(Annotated) 

1300.  An  attorney  cannot  testify  in  an 
action,  as  to  the  contents  of  a  letter  placed 
in  his  hands  as  attorney  for  the  party  from 
whom  he  received  it.  Lindahl  v.  Supreme 
Court.  I.  0.  of  F.  8:  916,  110  N.  W.  358, 
100  Minn.   87. 

1301.  Evidence  as  to  the  contract  between 
attorney  and  client  for  compensation,  and 
the  assignment  of  an  interest  in  the  judg- 
ment to  secure  the  same,  is  not  within  the 
rule  excluding  evidence  of  privileged  com- 
munications. Strickland  v.  Capital  City 
Mills,  7:  426,  54  S.  E.  220,  74  S.  C.  16. 

(Annotated) 

1302.  It  is  not  a  violation  of  the  rule  as  to 
contidential  communications  to  require  an 
attorney  to  produce  a  mortgage  belonging  to 
his  client  which  has  been  recorded  in  the 
office  of  the  register  of  deeds.  Pearson  v, 
Yoder,  48:  334,  134  Pac.  421,  39  Okla.  105. 

( Annotated ) 

1303.  Testimony  of  an  attorney  for  a  lessee 
that  a  contract  with  a  third  person  was 
mentioned  and  referred  to  at  the  time  of 
taking  the  lease  cannot  be  excluded  fropi 
evidence  in  a  suit  to  enforce  the  provisions 
of  the  lease  with  respect  to  it,  as  a  confi- 
dential communication,  since  the  fact  must 
necessarily  have  been  known  to  both  parties 
at  the  time.  Atlantic  &  N.  C.  R.  Co.  v.  At- 
lantic &  N.  C.  Co.  23  :  223,  61  S.  E.  185,  147 
N.  C.  368. 

1304.  Communications  between  attorney 
and  client,  concerning  an  indebtedness  of 
the  client  to  the  attorney,  are  not  witliin 
the  privilege  growing  out  of  the  relation, 
since    the    privilege    is    for   the    benefit    of 


EVIDENCE,  X.  b. 


1169 


the  client,  and  pertains  or.ly  to  communica- 
tions between  them  ar,  to  legal  matters, 
made  for  the  purpose  of  professional  aid  or 
advice.  Herrin  v.  Abbe,  i8:  907,  46  So.  183, 
55  Fla.  769. 
—  Communications      in      presence      of 

third  persons. 
See  also  supra,  1297;   infra,  1451. 

1305.  The  fact  that  third  persons  were 
present  when  dictation  was  begun  by  one 
to  a  confidential  agent  for  the  purpose  of 
enabling  him  to  write  a  letter  to  an  attor- 
ney does  not  prevent  the  communication 
being  privileged,  where  at  the  time  the 
confidential  part  of  the  letter  is  commenced 
such  third  persons  were  not  present.  State 
V.  Loponio  (N.  J.  Err.  &  App.)  49:  1017, 
88  Atl.  1045,  85  N.  J.  L.  357. 

1306.  Evidence  of  a  communication  in  the 
presence  of  a  stranger,  by  a  woman  to  an 
attorney  to  whom  she  has  applied  for  the 
preparation  of  her  will,  concerning  the  ex- 
istence of  an  illegitimate  child,  if  not  neces- 
sary for  the  business  in  hand,  cannot  be  ex- 
cluded as  privileged,  in  a  proceeding  by  such 
child  to  establish  a  claim  to  share  in  her 
estate.  Champion  v.  McCarthy,  11:  1052, 
81  N.  E.  808,  228  111.  87. 

Betiveen  husband  and  ixrife. 
Waiver   of  privilege,   see  infra,   1321. 
Loss  of  privilege,   see  infra,  1339-1341. 
Prejudicial  error  as  to,  see  Appeal  and  Eb- 

ROR,  1143,  1172. 
Competency  of  husband  or  wife  as  witness, 

see  Witnesses,  I.  b. 
See  also  infra,  1398,  1403,  1653,  1654,  1973. 

1307.  Statutes  changing  the  common-law 
rule  by  making  either  spouse  a  competent 
witness  against  the  other  do  not  affect  the 
rule  against  disclosure  of  confidential  rela- 
tions, as  such  statutes  are  aimed  at  objec- 
tion.' to  husband  and  wife  as  witnesses,  not 
to  tlie  matter  of  their  testimony.  Ex  parte 
Beville,  27:  273,  50  So.  685,  58  Fla.  170. 

(Annotated) 

1308.  It  is  not  error  to  admit  evidence  of 
a  woman,  of  declarations  of  her  husband  in 
a  suit  against  him,  where  they  are  more  in 
the  line  of  his  defense  than  against  him. 
Mend  v.  Owen,  12:  655,  67  Atl.  722,  80  Vt. 
273 

1309.  In  a  suit  by  the  husband  to  quiet 
his  title  to  property  of  his  deceased  wife 
against  her  children,  both  parties  claiming 
to  inherit  from  her,  he  is  prohibited  by 
§  320  of  the  Civil  Code  (Gen.  Stat.  1909, 
§  5914)  from  testifying  to  transactions  and 
communications  had  personally  with  her. 
Dennis  v.  Perkins,  43:  1219,  129  Pac.  165, 
88  Kan.  428. 

1310.  One  seeking  to  put  in  evidence  com- 
munications from  husband  to  wife  has  the 
burden  of  overcoming  the  presumption  that 
they  are  confidential  in  character.  Sex- 
ton V.  Sexton,  2:  708,  105  N.  W.  314,  129 
Iowa,  487. 

1311.  Relevant  and  material  testimony  by 
one  for  whom  the  appointment  of  a  guardi- 
an is  sought,  as  to  his  wife's  adultery,  is 
not  admissible  in  a  proceeding  by  her  for  a 
divorce  because  of  such  charge,  since  it  is 
Digest  1-52  Ii.R.A.(N.S.)  | 


privileged.     Mathewson  v.   Mathewson,    18: 
300,  69  Atl.  646,  81  Vt.  173. 

—  Subject-matter  of  communications. 

Of  communication  to  physician,  see  supra, 

1289-1292. 
Of   communication   to   attorney,   see   supra, 

1299-1304. 

1312.  The  statutory  prohibition  of  testi- 
mony by  husband  or  wife  as  to  "any  com- 
munication" by  one  to  the  other  applies  only 
to  the  knowledge  which  one  obtains  from 
the  other,  which,  but  for  the  relation  be- 
tween them,  would  not  have  been  commimi- 
cated,  or  which  is  of  such  a  nature  or  char- 
acter that  to  relate  it  would  tend  unduly  to 
embarrass  or  disturb  the  parties  in  their 
marital  relations.  Sexton  v.  Sexton,  2:  708, 
105  N.  W.  314,  129  Iowa,  487. 

1313.  A  wife  cannot  testify  as  to  confes- 
sion of  adultery  made  to  her  by  her  husband 
when  they  are  alone,  nor  as  to  his  charging 
her  with  infidelity  under  the  same  circum- 
stances. Whitehead  v.  Kirk,  51:  187,  61 
So.  737,  62  So.  432,  104  Miss.  776. 

1314.  A  wife  may  testify  to  acts  and 
declarations  to  her  by  her  husband,  tending 
to  show  his  affection,  and  subsequent  loss 
of  it,  in  an  action  to  recover  damages  for 
the  alienation  of  his  affections  from  her, 
notwithstanding  the  statute  provides  that 
neither  husband  nor  wife  can  be  examined 
as  to  any  communication  made  by  the  one 
to  the  other  while  married.  Sexton  v.  Sex- 
ton, 2:  708,  105  N.  W.  314,  129  Iowa,  487. 

(Annotated) 

1315.  A  wife  cannot,  for  the  purpose  of 
showing  the  testamentary  incapacity  of  her 
husband  in  a  will  contest,  testify  to  acts 
committed  by  him  in  her  presence,  when 
they  were  alone,  such  as  his  habits  of  in- 
toxication, his  hearing  voices  and  communi- 
cation with  spirits  of  the  dead,  his  mutter- 
ings  and  outcries  when  asleep,  delusions 
causing  him  to  arm  himself,  insults  to  her 
and  attempts  to  take  her  life,  although 
similar  acts  and  declarations  occur  in  the 
presence  of  others.  Whitehead  v.  Kirk, 
51:  187,  61  So.  737,  62  So.  432,  104  Miss.  776. 

1316.  The  privilege  accorded  communica- 
tions between  husband  and  wife  does  not 
extend  to  letters  written  by  the  wife's  at- 
torney, by  her  authorization,  to  the  hus- 
band. Re  Sherin,  40:  801,  130  N.  W.  761, 
133  N.  W.  701,  27  S.  D.  232. 

—  Effect  of  divorce. 

1317.  Communications  between  a  divorced 
couple  are  not  inadmissible  in  evidence  as 
confidential,  although  the  divorce  was  fraud- 
ulently procured,  if  they  never  afterward 
recognized  each  other  as  husband  and  wife. 
Spearman  v.  State,  44:  243,  152  S.  W.  915. 

—  Tex.  Crim,  Rep.  — . 

1318.  Where  a  man  on  trial  for  perjury  in 
securing  a  divorce  from  his  wife  introduces 
depositions  of  his  wife  used  in  the  divorce 
suit,  corroborative  of  the  evidence  given  by 
him  therein,  the  state  may,  on  cross-exami- 
nation, ask  her  why  she  testified  as  she 
did,  and  her  answer  that  she  did  so  under 
his  direction  does  not  violate  the  rule 
against    the    admissibility    of    confidential 

74 


1170 


EVIDENCE,  X.  b. 


loiniminieations.     Spearman    v.    State,    44: 
243,  152  S.  W.  915,  —  Tex.  Grim.   Rep.  — . 

(Annotated) 
Offer  of  compromise. 
See  also  supra,  1252. 

1319.  Evidence  of  an  attempted  compro- 
mise is  inadmissible  in  an  action  for  breach 
of  promise  of  marriage.  VVrynn  v.  Dow- 
ney, 4:  615,  63  Atl.  401,  27  R.  I.  454. 

1320.  That  a  writing  contains  an  offer  of 
compromise  does  not  render  it  inadmissible 
in  evidence,  if  it  is  competent  evidence  for 
other  purposes.  Kennell  v.  T?over,  24:  488, 
122  N.  W,  941,  144  Iowa,  303' 
Waiver  of  privilege. 

1321.  The  privilege  as  to  confidential  com- 
munications between  husband  and  wife  may 
be  waived  by  either  spouse  by  calling  the 
other  party  to  the  marital  relation  as  a  wit- 
ness. Hampton  v.  State,  40:  43,  123  Pac. 
571,  7  Okla.  Crim.  Rep.  291.  (Annotated) 
—  In  communication  to  physician. 

1322.  The  provision  of  Minn.  Gen.  Stat. 
1894,  §  5602,  subd.  4,  forbidding  the  exami 
nation  in  a  civil  action  of  a  regular  physi- 
cian, without  the  consent  of  his  patient,  as 
to  any  information  acquired  in  attending 
the  patient,  is  for  the  protection  of  tlie  lat- 
ter, and  may  be  waived  by  him,  or,  as  a  gen- 
eral rule,  by  those  wlio  represent  him  after 
his  death.  Olson  v.  Court  of  Honor,  8:  521, 
110  N.  W.  374,  100  Minn.  117. 

1323.  The  prohibitions  in  Neb.  Code,  § 
333,  against  a  physician  testifying  to  confi- 
dential disclosures  made  to  him  in  tlic 
course  of  his  professional  employment,  are 
for  tlie  benefit  of  the  patient,  who  can, 
under  the  express  provisions  of  §  334, 
waive  the  same.  Western  Travelers'  Acci. 
Asso.  v.  Munson,  i:  1068,  103  N.  W.  688,  73 
Neb.  858. 

1324.  A  waiver  by  the  patient,  under  Neb. 
Code,  §  334,  of  the  prohibition  in  §  333 
against  a  physician's  testifying  to  confi- 
dential disclosures  made  to  him  in  the 
course  of  his  professional  employment,  may 
be  included  in,  and  made  a  part  of,  the  con- 
tract sought  to  be  enforced  in  the  action 
in  which  such  testimony  is  olTered,  and  need 
not  necessarily  be  made  at  the  time  of  the 
trial.  Western  Travelers'  Acci.  Asso.  v. 
Munson,  i :  1068,  103  N.  W.  688,  73  Neb.  858. 

1325.  Waiver  of  privilege  as  to  one  of  two 
physicians  attending  a  person  injured  by 
another's  negligence  does  not  prevent  exclu- 
sion of  testimony  of  the  other,  when  called 
oy  the  person  whose  negligence  caused  the 
injury.  Jones  v.  Caldwell,  48:  119,  116  Pac. 
110,  20  Idaho,  5. 

1326.  A  waiver  of  a  statutory  provision 
disqualifying  a  physician  is  a  waiver  of  the 
disqualification  as  to  the  whole  transaction. 
Bryant  v.  Modem  Woodmen  of  America, 
27:  326,  125  N.  W.  621,  86  Neb.  372. 

1327.  The  mere  filing  of  a  petition  in  an 
action  for  personal  injuries  does  not  waive 
a  statutory  provision  disqualifying  a  physi- 
cian and  surgeon  from  testifying  to  any 
information  acquired  by  them  while  attend- 
ing their  patients  in  a  professional  ca- 
pacity. Smart  v.  Kansas  City,  14:  565,  105 
S.  W'.  709,  208  Mo.  162. 

Digest  1-52  Ii.R.A.(N.S.) 


1328.  The  waiver  by  a  plaintiff,  in  an  ac- 
tion to  recover  damages  for  personal  in- 
juries, of  his  statutory  |)rivilege  of  exclud- 
ing testimony  of  his  physician  by  failing 
to  object  t)  it  when  oU'ered,  will  prevent 
his  objecting  to  the  introduction  of  the  tes- 
timony of  the  physician  on  a  subsequent 
trial  of  a  prosecution  against  him  for  per- 
jury. People  V.  Bloom,  18:  898,  85  N.  E. 
824,  193  N.  Y.  1. 

1329.  One  injured  in  a  railroad  wreck, 
who,  in  a  suit  to  recover  damages  for  the 
injuries,  testifies  as  to  the  injuries  and  the 
treatment  given  him,  and  calls  his  own  phy- 
sician to  testify  as  to  such  injuries,  waives 
the  provision  of  the  statute  making  incom- 
petent as  a  witness  a  physician  or  surgeon 
concerning  information  acquired  from  a 
patient  while  attending  him  in  a  profes- 
sional character,  and  other  physicians  who 
treated  him  for  such  injuries  at  the  time  of 
the  accident  may  therefore  testify  as  to 
their  extent  and  the  treatment  given.  Ep- 
stein v.  Pennsylvania  R.  Co.  48:  394,  158 
S.  W.  699,  250  Mo.  1.  (Annotated) 

1330.  The  calling,  in  an  action  on  an  acci- 
dent insurance  policy,  of  a  physician  who 
attended  insured  shortly  after  his  injury, 
does  not  render  admissible  evidence  of  an- 
other physician  who  made  an  examination 
of  him  at  a  difi"erent  time,  where  the  stat- 
ute prohibits  the  disclosure  by  a  physician 
without  consent  of  any  information  con- 
fidential in  its  nature,  acquired  in  attend- 
ing a  patient  in  a  professional  capacity, 
and  necessary  to  enable  him  to  act  in  that 
capacity.  Mays  v.  New  Amsterdam  Casual- 
ty Co.  46:1108,  40  App.  D.  C.  249. 

1331.  One  claiming  under  an  accident  in- 
surance policy  does  not  waive  the  privilege 
existing  between  the  attending  physician 
and  insured  so  as  to  render  his  testimony 
admissible,  by  reading  in  evidence  incident- 
ally as  part  of  a  deposition  of  one  of  de- 
fendant's officers  upon  another  issue  an 
affidavit  of  the  physician  voluntarily  fur- 
nished as  part  of  the  proof  of  loss.  Fideli- 
ty &  C.  Co.  v.  Meyer,  44:  493,  152  S.  W. 
995,  106  Ark.  91. 

1332.  A  stipulation,  in  a  contract  of  life 
insurance,  to  the  effect  that  the  proofs  of 
death  shall  consist  in  part  of  the  affidavit 
of  the  attending  physician,  which  shall 
state  the  cause  of  death  and  such  other 
information  as  may  be  required  by  the  in- 
surer, constitutes  a  waiver  within  the 
meaning  of  said  sections,  and  renders  the 
attending  physician  a  competent  witness  as 
to  the  confidential  disclosures  made  to  him 
by  the  assured  concerning  his  last  sick- 
ness. Western  Travelers'  Acci.  Asso.  v. 
Munson,  i:  1068,  103  N.  W.  688,  73  Neb.  858. 

(Annotated) 

1333.  The  plaintiff  in  a  suit  for  malprac- 
tice, who  fully  describes  his  injury  and  the 
operation  to  which  he  was  compelled  to  sub- 
mit because  of  the  defendant's  alleged  fail- 
ure properly  to  care  for  it,  waives  the  statu- 
tory privilege  of  excluding  from  evidence 
the  testimony  of  the  surgeon  performing  the 
operation.  Capron  v.  Douglass,  20:  1003, 
85  N.  E.  827,  193  N.  Y.  11.  (Annotated) 

f 


EVIDENCE,  X.  c. 


1171 


1334.  A  beneficiary  in  a  life  insurance  pol- 
icy seeking  to  set  aside  a  settlement  of  the 
claim  because  of  the  alleged  falsity  of  a 
statement  of  the  attending  physician  as  to 
the  cause  of  the  deatli  of  insured,  and  as 
to  which  she  introduces  testimony,  waives 
the  privilege  in  regard  to  the  testimony  of 
such  physician  concerning  the  cause  of 
deatli.  National  Annuity  Asso.  v.  McCall, 
48:  418,  146  S.  W.  125,  103  Ark.  201. 

(Annotated) 

1335.  An  applicant  for  life  insurance  may 
make  a  valid  contract  with  the  insurer, 
waiving  the  privilege  afforded  him  by  a 
statute  rendering  a  physician  incompetent 
to  testify  to  professional  communications 
from  his  patient  and  to  knowledge  of  his 
patient  obtained  in  a  professional  way. 
Metropolitan  L.  Ins.  Co.  v.  Brubaker,  18: 
362,  96  Pac.  62,  77  Kan.  599. 

1336.  That  the  physician  of  one  seeking 
damages  for  personal  injuries  is  not  intro- 
duced as  a  witness  by  him  does  not  pre- 
vent his  waiver  of  his  privilere  from  op- 
erating in  future  trials.  Elliott  v.  Kansas 
City,  6:  1082,  96  S.  W.  1023,  198  Mo.  593. 

1337.  The  waiver  of  privilege  by  one  seek- 
ing damages  for  personal  injuries,  so  as  to 
permit  his  physician  to  testify  in  the  ac- 
tion, extends  to  subsequent  trials,  so  that 
he  cannot  object  to  the  introduction  in 
them  of  substantially  the  same  testimony 
given  under  the  waiver.  Elliott  v.  Kansas 
City,  6:  1082,  96  S.  W.  1023,  198  Mo.  593. 

(Annotated) 
—  In   commTinication   to   attorney. 

1338.  The  fact  that  one  who  is  claimed  to 
have  dictated  a  letter  through  a  confiden- 
tial agent  to  an  attorney  for  the  purpose  of 
employing  the  attorney  in  his  defense  de- 
nies any  intention  of  employing  the  attor- 
ney to  whom  the  letter  was  addressed  does 
not  take  the  communication  out  of  the 
privileged  class,  where  the  letter  itself  pur- 
ports to  seek  such  employment.  State  v. 
Loponio  (N.  J.  Err.  &  App.)  49:  1017,  88 
Atl.  1045,  85  N.  J.  L.  357. 

Iioss  of  privilege. 

1339.  The  use  as  evidence  against  accused 
of  a  letter  written  by  him  to  his  wife,  but 
intercepted  by  the  authorities  before  it 
reached  her  possession,  is  not  prevented  by 
a  statute  prohibiting  either  husband  or  wife 
to  be  examined  as  to  any  communication 
made  by  one  to  the  other.  People  v.  Dnn- 
nigan,  31:940,  128  N.  W.  180,  163  Mich. 
349. 

1340.  Letters  written  by  a  woman,  who  was 
charged  with  burning  her  property  to  collect 
the  insurance,  to  her  husband,  which  were 
lost  by  him  and  came  into  possession  of 
strangers,  are  admissible  in  evidence  against 
her.  O'Toole  v.  Ohio  German  F.  Ins.  Co. 
24:  802,  123  N.  W.  795,  159  Mich.  187. 

1341.  One  who  has  read  a  letter  from  a 
man  to  his  wife,  which  was  casually  picked 
up  where  the  wife  had  laid  it,  cannot  tes- 
tify to  its  contents  in  a  criminal  prosecu- 
tion against  the  husband,  where  the  statute 
forbids  either  spouse  to  testify  in  a  crimi- 
nal prosecution  to  communications  from  the 
Digest  1-52  Ii.R.A.(N.S.) 


other.     Gross  v.   State,   33:  477,   135  S.   W. 
373,  61  Tex.  Crim.  Rep.  176.      (Annotated) 

c.  Pai'ty's    (nvn   mcts   and   declarations. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Admissions  by  party,  see  supra,  IX. 

Complaints  of  injury  and  suffering,  see  in- 
fra, X.  h. 

Prejudicial  error  in  admitting,  see  Appkal 
AND  Error,  1096. 

1342.  Declarations  of  a  party  to  a  contract, 
as  to  its  terms,  are  not  admissible  as  part 
of  the  res  gestae,  when  made  after  the  con- 
tract is  completed,  and  not  in  the  presence 
of  the  parties,  although  made  very  soon  aft- 
er the  parties  separate.  State  v.  Murphy, 
17:  609,   115  N.  W.  84,   17  N.  D.  48. 

1343.  The  statement  of  one  having  a  bot- 
tle of  wood  alcohol  purchased  the  previous 
day,  made  to  induce  another  to  drink  with 
him,  that  "it  is  good.  I  got  it  of  Chase 
Brown,"  is  inadmissible  as  res  gestce  evi- 
dence in  an  action  for  the  death  of  the 
purchaser,  based  upon  the  alleged  negligence 
of  Brown  in  selling  wood  alcohol  for  grain 
alcohol  without  a  proper  label,  as  such 
statement  was  not  concomitant  with  the 
act  of  obtaining  the  alcohol,  nor  a  part  of 
it,  but  was  simply  narrative  of  a  completed 
transaction.  Campbell  v.  Brown,  26:  -142, 
106  Pac.  37,  81  Kan.  480. 

1344.  All  statements  made  by  the  defend- 
ants to  an  action  for  damages  for  personal 
injuries  inflicted  by  a  dog  while  trespassing, 
as  to  their  custody  of  the  dog  at  the  time 
of  the  accident  and  immediately  preceding 
thereto,  and  the  ownership  and  harboring 
of  the  dog,  are  admissible  to  aid  the  jury 
in  determining  whether  or  not  the  defend- 
ants were  the  owners  or  harborers  of  the 
dog  and  liable  for  the  damage  done  by  it. 
McClain  v.  Lewiston  Interstate  Fair  &  R. 
Asso.  25:  691,  104  Pac.   1015,  17  Idaho,  63. 

1345.  Statements  of  one  injured  by  an- 
other's negligence,  during  examination  by 
physicians  who  are  attempting  to  qualify  as 
expert  witnesses  in  an  action  to  recover  for 
the  injuries,  are  not  admissible  in  such  ac- 
tion as  part  of  the  res  gestce.  Shaughnessv 
V.  Holt,  21:  826,  86  N.  E.  256,  236  111.  485. 

(Annotated) 

1346.  Statements  made  by  one  rendered 
unconscious  by  a  personal  injury,  immedi- 
ately upon  his  regaining  consciousness, 
eight  days  later,  as  to  the  cause  of  the  in- 
jury, are  admissible  in  evidence  against  one 
alleged  to  be  responsible  therefor,  and  the 
fact  of  the  appearance  of  semiconsciousness 
before  full  consciousness  returns  goes  to 
the  weight  of  the  evidence,  and  not  to  its 
admissibility.  Britton  v.  Washington  Water 
Power  Co.  33:  109,  110  Pac.  20,  59  Wash. 
440. 

1347.  Serving  a  notice  of  accident  on  a 
city,  as  required  by  statute,  is  not  a  bring 
ins  of  an  action,  within  the  meaning  of  a 
statute    permitting    th?    admission    of    evi- 
dence of  declarations  of  an  injured  person 


1172 


EVIDENCE,  X.  d. 


made  before  action   brought.     Dickinson  v. 
Boston,  1 :  664,  75  N.  E.  68,  188  Mass.  595. 
Against  interest. 
Admissions,  see  supra,  iK. 
See  also  supra,  1029. 

1348.  Statements  against  interest,  by  a 
party  to  an  attempted  arbitration  to  one 
of  the  selected  arbitrators,  are  admissible 
in  evidence  against  him,  in  an  action  grow- 
ing out  of  the  subject-matter  of  the  con- 
troversy. Sullivan  v.  Sullivan,  7:  156,  92  S. 
W.  966,  122  Ky.  707. 

1349.  A  trust  in  an  absolute  legacy  may  be 
established  by  parol  evidence,  and  the  con- 
temporaneous declarations  of  the  testator, 
and  subsequent  declarations  of  the  legatee, 
that  the  bequest  was  made  for  the  benefit 
of  a  third  person,  upon  the  promise  of  the 
legatee  to  hold  it  in  trust,  are  admissible 
for  that  purpose.  Winder  v.  Scholey,  33: 
995,  93  N.  E.  1098,  83  Ohio  St.  204. 

In  party's  favor. 

Complaints  of  injury  and  suffering,  see  in- 
fra, X.  h. 

1350.  A  statement  of  an  employee  who 
had  fallen  from  a  ladder,  made  in  response 
to  a  question  while  he  was  lying  on  the 
floor,  that  the  ladder  bent  under  him,  is 
narrative,  and  not  spontaneous,  and  is 
therefore  not  admissible  as  res  gestce  in  an 
action  to  hold  his  employer  liable  for  the 
injury.  Greener  v.  General  Electric  Co. 
46:975,  102  N.  E.  527,  209  N.  Y.  135. 

1351.  Upon  the  question  of  negligence  of 
the  owner  of  a  garage  in  driving  a .  car 
against  another  on  the  highway,  repair 
tickets  issued  by  the  garage  showing  the 
nature  of  repairs  made  upon  his  car  are  not 
admissible  in  evidence,  nor  is  a  private 
letter  from  him  relating  to  repairs  made 
just  prior  to  the  accident  admissible,  since 
they  are  mere  self-serving  declarations. 
Granger  v.  Farrant,  51:  453,  146  N.  W.  218, 
179  Mich.  19. 

1352.  Testimony  by  a  plaintiff  in  an  action 
to  recover  damages  for  personal  injuries, 
that  statements  made  to  a  physician  who 
examined  him  to  qualify  as  an  expert  wit- 
ness in  the  case  were  true,  will  not  render 
admissible  testimony  of  such  physician, 
based  upon  such  statements.  Shaughnessy 
V.  Holt,  21:  826,  86  N.  E.  256,  236  111.  485. 
Criminal  cases. 

Review  of  discretion  as  to,  see  Appeal  and 

Error,  609. 
Admissibility    to    corroborate    witness,    see 

Witnesses,  193. 
See  also  infra,  1887. 

1353.  Statements  of  an  accused  are  not 
rendered  inadmissible  at  his  trial  by  the 
fact  that  at  the  time  of  making  them  he  was 
a  convict  hired  out  on  bond.  Andrews  v. 
State,  42:  747,  141  S,  W.  220,  64  Tex.  Crim. 
Rep.  2. 

1354.  In  a  prosecution  for  receiving  money 
stolen  from  the  mail,  evidence  is  not  ad- 
missible that,  after  arrest,  accused  in- 
formed his  attorney  that  he  did  not  know 
that  the  money  was  stolen.  Thompson  v. 
Unrted  States,  47:  206,  202  Fed.  401,  120  C. 
C.  A.  575. 

1355.  Upon  a  trial  for  assault  with  intent 
Digest  1-52  L.R.A.(^.S.) 


to  murder,  evidence  is  admissible  of  state- 
ments of  accused  made  shortly  after  the 
assault  that  he  had  considerable  feeling 
against  his  victim.  State  v.  McGuire,  38: 
1045,  80  Atl.   761,  84  Conn.  470. 

1356.  In  a  trial  for  homicide  it  is  compe- 
tent to  put  in  evideni^e  the  actions,  con- 
duct, and  general  demeanor  of  defendant 
before  the  killing,  for  the  purpose  of  prov- 
ing that  he  was  armed  and  in  a  vicious 
humor,  provided  only  that  such  conduct  is 
so  near  the  time  of  the  liomicide  as  to  tend 
to  show  the  state  of  mind  of  the  defend- 
ant at  the  time  of  the  killing.  Hampton 
V.  State,  40:  43,  123  Pac.  571,  7  Okla.  Crim. 
Rep.  291. 

1357.  Upon  the  question  whether  one 
found  dead  had  committed  suicide  or  had 
been  murdered,  evidence  is  admissible  of  a 
declaration  by  accused  of  an  intention  to 
dispose  of  another  person  in  the  identical 
manner  in  which  decedent  appears  to  have 
met  his  death,  and  which  is  peculiar  and 
unusual.  Com.  v.  Snell,  3:  1019,  75  N.  E. 
75,  189  Mass.  12. 

1358.  A  statement  by  one  accused  of  mur- 
der that  he  was  a  straight  shot,  a  game 
man,  which  his  hearer  would  find  out  be- 
fore they  got  back,  is  admissible  in  evidence 
upon  his  trial  for  a  homicide  occurring  dur- 
ing the  expedition,  although  several  hours 
later,  as  tending  to  show  general  malice  and 
a  disposition  to  do  a  criminal  act.  State  v. 
Feeley,  3:  351,  92  S.  W.  663,  194  Mo.  300. 

1359.  Upon  trial  of  one  for  killing  a  po- 
liceman, evidence  of  a  casual  remark  of  ac- 
cused several  months  before,  to  the  effect 
that  "if  they  arrested  me  like  that  fellow 
was  arrested  I  would  shoot  them,"  is  not 
admissible  in  evidence  if  there  is  nothing 
to  show  the  circumstances  of  the  arrest  al- 
luded to.  State  V.  Meyers,  33:  143,  110 
Pac.  407,  57  Or.  50. 

d.  Acta  and  declarations  of  third  per- 
sona, generally. 

(See  also   same  heading   in  Digest  L.R.A. 
1-10.) 

Admissions  of  third  persons,  see  supra,  IX. 
Prejudicial   error    as    to,    see   Appeal    and 

Error,  1140. 
See  also  supra,  1272. 

1300.  A  witness's  prior  contradictory 
statement  cannot  be  used  as  substantive 
testimony  tending  to  show  the  truth  of  the 
facts  alleged  in  such  statement.  Culpepper 
V.  State,  31:  1166,  111  Pac.  679,  4  Okla. 
Crim.  Rep.  103. 

1361.  Evidence  is  not  admissible  in  an  ac- 
tion to  set  aside  a  deed,  of  a  declaration 
by  one  person  as  to  what  another  meant  by 
remarks  made  to  the  speaker  concerning 
the  preparation  of  papers.  Holt  v.  Guer- 
guin,  50:  1136,  163  S.  W.  10,  —  Tex.  — . 

1362.  Evidence  of  declarations  by  heirs  to 
their  mother,  that  real  estate  left  by  their 
father  is  hers,  is  not  admissible  as  proof 
of  title  in  her.  Munsev  v.  Hanly,  13:  209, 
67   Atl.  217,   102  Me.  423. 


EVIDENCE,  X.  d. 


1173 


1363.  Evidence  of  expression  of  other  pas- 
sengers is  not  admissible  in  evidence  upon 
the  question  of  the  liability  of  a  street  car 
company  for  ejecting  a  person  from  its  car. 
Kirk  V.  Seattle  Electric  Co.  31:  991,  108 
Pac.  604,  58  Wash.  283. 

1364.  Upon  the  question  of  the  tempera- 
ture and  condition  of  a  car  in  which  pas- 
sengers are  compelled  to  travel,  evidence  is 
not  admissible  of  complaints  of  passengers 
made  to  each  other,  but  not  brought  to  the 
attention  of  the  carrier's  employees.  Louis- 
ville &  N.  R.  Co.  v.  Scalf,  26:  263,  110 
S.  W.   862,  33  Ky.  L.  Rep.  721. 

1365.  Declarations  of  .a  witness  who  at- 
tested a  will,  unfavorable  to  the  capacity  of 
testator,  are  not  admissible  in  evidence  on 
the  question  of  the  validity  of  the  will. 
Speer  v.  Speer,  27:  294,  123  N.  W.  176,  146 
Iowa,  6.  (Annotated) 

1366.  The  statements  of  the  employer  when 
discharging  an  employee  because  of  notice 
of  an  assignment  of  his  wages  are  admis- 
sible in  evidence  in  an  action  to  hold  one 
liable  in  damages,  who  caused  the  discharge 
by  wrongfully  claiming  the  assignment. 
Lopes  v.  Connolly,  38:  986,  97  N.  E.  80, 
210  Mass.   487. 

1367.  In  an  action  against  a  member  of  an 
employers'  association  for  blacklisting  an 
employee,  the  latter  should  not  be  permitted 
to  testify  as  to  the  reasons  given  by  mem- 
bers of  the  association  for  refusal  to  em- 
ploy him.  Wi liner  v.  Silverman,  24:  895, 
71  Atl.  962,   109  Md.  341. 

1368.  In  an  action  to  recover  damages  for 
trespass  and  assault  in  compelling,  through 
an  unlawful  affray,  a  person  to  take  refuge 
in  his  home,  and  in  shooting  at  him,  evi- 
dence of  what  was  said  by  persons  in  the 
crowd  in  the  street  in  front  of  the  house, 
of  the  one  against  whom  the  demonstration 
was  made,  is  admissible  as  part  of  the  res 
gestce.  Saunders  v.  Gilbert,  38:  404,  72  S. 
E.  610,  156  N.  C.  463. 

1369.  One  receiving  upon  a  trial  the  bene- 
fit of  a  declaration  of  an  absent  witness 
through  the  admission  of  his  opponent  that 
he  had  heard  of  it  takes  it  subject  to  the 
same  conditions  and  limitations  which 
would  attach  to  it  had  the  declarant  been 
called  as  a  witness.  Kennedy  v.  Modern 
Woodmen  of  America,  28:  181,  90  N.  E.  1084, 
243  111.  560. 

As  to  accident  or  injury. 

Admissibility  of  admissions,  see  supra,  IX. 

Evidence  of  person  killed,  see  infra,  1380- 
1385. 

Acts  and  declarations  of  agent  or  represen- 
tative, see  infra,  1413-1425. 

Admissibility  to  impeach  witness,  see  Wit- 
nesses, 145,  170. 

1370.  Statements  of  bystanders  at  the  time 
of  the  killing  of  a  person  by  a  street  car 
are  not  admissible  in  evidence  as  part  of  the 
res  gestce  in  an  action  to  hold  the  street 
car  company  liable  for  the  death.  Louis- 
ville R.  Co.  v.  Johnson,  20:  133,  115  S.  W. 
207,  131  Ky.  277.  (Annotated) 

1371.  One  rendered  hysterical  by  an  acci- 
dent, who  had  been  assisting  in  bringing  to 
consciousness  her  companion  who  was  ren- 
Digest  1-52  I1B.A.(N.S.) 


dered  unconscious  by  it,  is  not  bound  by  a 
statement  made  by  the  latter,  immediately 
on  regaining  consciousness,  as  to  the  cause 
of  the  accident,  although  she  does  not  con- 
tradict it.  McCord  v.  Seattle  Electric  Co. 
13:  349.  89  Pac.  491,  46  Wash.  145. 

(Annotated) 

1372.  An  exclamation  by  a  bystander,  not 
in  the  hearing  of  those  in  charge  of  an  elec- 
tric car,  as  to  an  impending  collision  be- 
tween the  car  and  a  child  on  the  track,  is 
not  admissible  as  res  gestce  in  an  action  for 
injury  to  the  child.  Shadowski  v.  Pitts- 
burgh R.  Co.  29:  302,  75  Atl.  730,  226  Pa. 
537. 

1373.  The  declaration  of  a  passenger  on  a 
street  car  at  a  time  when  the  conductor  is 
attempting  to  drive  a  boy  off  the  step,  to 
the  effect  that  he  is  off,  before  the  conduct- 
or opens  the  door,  is  admissible  in  evidence 
as  res  gestce,  in  an  action  by  the  boy  to 
hold  the  company  liable  for  injury  alleged 
to  have  been  caused  by  the  conductor  kick- 
ing him  off  the  car.  Britton  v.  Washington 
Water  Power  Co.  33:  109,  110  Pac.  20,  59 
Wash.  440.  (Annotated) 
Of  deceased  person. 

Effect  on  admissibility  of  book  entries  of 

death  of  party  making,  see  supra,  800- 

802,  819,  844-846,  864. 
Evidence   as  to  pedigree,   see  supra,   1273, 

1274. 
Declarations  of  testator,  see  infra,  X.  f. 
Dying  declarations,  see  infra,  X.  1. 
Evidence    of    threats   by    person    murdered, 

see  infra,  1479-1483. 
Waiver  of  cure  of  error  as  to,  see  Appeal 

AND  Ereoe,  832. 
Prejudicial   error    as    to,    see   Appeal   and 

Error,  1155,  1226. 

1374.  Declarations  of  a  person  since  de- 
ceased, wholly  in  favor  of  the  interest  of 
the  declarant,  and  which  are  not  a  part  of 
the  res  gestce,  are  mere  hearsay,  and  not  ad- 
missible in  evidence.  Drawdy  v.  Hesters, 
15:  190,  60  S.  E.  451,  130  Ga.  161. 

1375.  The  declarations  of  a  woman  and  her 
children  and  their  husbands  and  wives,  if 
deceased,  are  admissible  in  behalf  of  one 
claiming  to  be  her  illegitimate  child,  borft 
before  her  marriage,  where  the  statutes 
permit  him  to  inherit  from  or  through  her. 
Champion  v.  McCarthy,  11:  1052,  81  N.  E. 
808,  228  111.  87.  (Annotated) 

1376.  Statements  of  a  deceased  person  are 
admissible  upon  the  question  of  his  citizen- 
ship. State  ex  rel.  Phelps  v.  Jackson, 
8:  1245,  65  Atl.  657,  79  Vt.  504. 

1377.  If  equivocal  conduct,  such  as  co- 
habitation, is  relied  upon  as  a  circumstance 
material  to  prove  the  fact  of  marriage,  dec- 
larations of  one  of  the  parties,  since  de- 
ceased, made  pending  the  period  of  cohab- 
itation, disaffirming  the  marriage,  are  ad- 
missible under  the  principle  of  res  gestce, 
for  the  purpose  of  showing  the  character  of 
the  cohabitation.  Drawdy  v.  Hesters,  15: 
190,  60  S.  E.  451,  130  Ga.  161.  (Annotated) 
—  Insured. 

1378.  Assuming  that  it  is  proper  in  an  ac- 
tion on  an  old  line  insurance  policy,  to  ex- 
clude evidence   of   statements  made  by  the 


1174 


EVIDENCE,  X.  d. 


insured  subsequent  to  his  application,  tend- 
ing to  impeacii  the  veracity  of  his  answers 
to  questions  therein,  on  the  ground  that  the 
riglits  of  the  beneficiary  cannot  be  preju- 
diced by  declarations  made  by  the  insured 
subsequent  to  the  contract,  the  rule  should 
not  be  extended  to  the  case  of  benefit  or 
fraternal  insurance,  where  the  insured  con- 
trols entirely  the  disposition  of  any  bene- 
fits, and  so  is  really  the  only  party  in  in- 
terest. Knights  of  Maccabees  v.  Shields, 
49:  853,  160  S.  W.  1043,  156  Ky.  270. 

(Annotated) 

1379.  In  an  action  to  recover  upon  a 
mutual  benefit  certificate,  declarations  and 
admissions  of  the  assured,  made  ante  litem 
motam,  respecting  the  date  of  his  birth,  are 
admissible  in  evidence  against  his  bene- 
ficiary, where  the  defense  interposed  is  that 
a  false  date  of  birth  was  given  in  the  ap- 
plication for  membership.  Taylor  v.  Grand 
Lodge  A.  0.  U.  W.  iz:  92,  111  N.  W.  919, 
101  Minn.  72.  (Ann  tated) 
—  Person  negligently  killed. 

1380.  The  statement  of  one  killed  by  an 
electric  wire,  made  at  the  time  he  took  hold 
of  it,  is  admissible  in  evidence  in  an  action 
to  recover  damages  for  his  death,  as  part 
of  the  res  gestce.  Lewis  v.  Bowling  Green 
Gaslight  Co.  22:  1169,  117  S.  W.  278,  135  Ky. 
611. 

1381.  The  statement  by  one  killed  on  be- 
ing mistaken  for  a  burglar  at  about  11 
o'clock  p.  M.,  made  while  in  his  store  at 
8  o'clock  P.  M.,  as  to  where  he  intended  to 
spend  the  night,  is  not  admissible  as  res 
gestce  in  an  action  to  hold  his  assailant 
liable  for  damages  for  his  death.  Foster  v. 
Shepherd,  45:  167,  101  N.  E.  411,  258  111. 
164. 

1382.  Declarations  of  a  man  crushed  by 
cars,  after  he  has  reached  the  station  and 
assistance  has  been  summoned,  as  to  how 
the  accident  happened,  is  admissible  as 
part  of  the  res  gestce,  if  his  friends  are  not 
present,  and  he  is  so  badly  hurt  that  he 
dies  within  thirty-six  hours  after  the  acci- 
dent, so  that  th '  presumption  would  be 
violent  that  the  statement  was  made  for 
self-serving  purposes.  Starr  v.  ^tna  L. 
Ins.  Co.  4:  636,  83  Pac.  113,  41  Wash.  199. 

1383.  Statements  to  witnesses  by  one 
struck  by  a  railroad  train  and  rendered  un- 
conscious for  an  unascertained  period  of 
time,  made  after  he  recovered  consciousness, 
as  to  what  he  knew  of  the  accident,  are  not 
admissible  as  part  ot  the  res  gestce  in  an 
action  against  the  railroad  company  to  re- 
cover damages  for  his  resulting  death,  since 
they  cannot  be  regarded  as  part  of  the 
transaction  nor  the  immediate  outcome  of 
the  act  complained  of.  Bionto  v.  Illinois 
C.  R.  Co.  27:  1030,  51  So.  98,  125  La.  147. 

1384.  The  statements  of  a  boy  eight  years 
of  age  who  had  suffered  injuries  from  which 
he  subsequently  died,  within  a  few  minutes 
of  the  injury,  to  a  relative  to  whom  he  had 
made  his  way  after  the  injury  had  been  in- 
flicted, form  part  of  the  res  gcstw,  and  are 
admissible  in  evidence  upon  the  trial  of 
one  accused  of  inflicting  the  injury.  State 
Digest  1-52  L.R.A.(N.S.) 


v.    Findling,    49:  449,    144    N.    W.    142,    123 
Minn.  413. 

1385.  The  conversation  of  a  boy  eight  years 
of  age  who  had  suffered  injuries  from  which 
he  subsequently  died,  with  the  county  attor- 
ney a  short  tjme  prior  to  his  death,  on  the 
subject  of  his  injuries  and  as  to  who  inflict- 
ed them,  during  which  he  pointed  out  a  cer- 
tain person  as  the  guilty  party,  may  proper- 
ly be  testified  to  by  the  county  attorney 
upon  the  trial  of  the  one  thus  pointed  out, 
since  the  whole  object,  purpose,  and  effect 
thereof  is  to  identify  the  person  who  com- 
mitted the  crime.  State  v.  Findling,  49: 
449,   144  N.  W.   142,   123  Minn.  413. 

—  Person     oxirning     or     interested     in 
property. 

1386.  Declarations  made  by  a  person  since 
deceased,  as  to  the  value  of  certain  property 
and  the  disposition  she  made  of  it,  are  not 
admissible  within  the  rule  allowing  proof 
of  declarations  of  deceased  persons  accom- 
panying an  act  of  possession,  to  show  that 
possession  was  held  under  a  claim  of  title. 
Kuykendall  v.  Fisher,  8:  94,  56  S.  E.  48,  61 
W.  Va.  87. 

1387.  In  an  action  by  a  remainderman  to 
set  aside  a  deed  signed  by  himself  and  the 
life  tenant,  on  the  ground  that  it  was  pro- 
cured under  the  representation  that  it  was 
a  will,  declarations  by  the  life  tenant,  since 
deceased,  are  admissible,  to  the  effect  that 
the  estate  had  been  conveyed,  as  tending  to 
show  that  the  alleged  representations  were 
not  made.  Smith  v.  Moore,  7:  684,  55  S.  E. 
275,  142  N.  C.  277. 

1388.  Evidence  of  declarations  of  one  in 
possession  of  a  stock  of  goods,  claiming 
ownership  in  himself,  made  in  the  absence 
of  rival  claimants,  is  not  admissible  after 
his  decease  against  them  to  prove  owner- 
ship, either  as  res  gestce  or  verbal  acts  ex- 
plaining and  characterizing  the  nature  of 
the  possession.  Freda  v.  Tischbein,  49:  700, 
140  N,  W.  502,  174  Mich.  391.       ( Annotated) 

1389.  Evidence  of  declarations  by  one  in 
possession  of  real  estate,  that  he  has  con- 
veyed the  property  to  another  by  deed 
based  upon  a  meritorious  consideration,  is 
admissible,  in  a  suit  after  his  death,  to  set 
aside  a  purported  deed  on  the  ground  of 
fraud  in  that  the  signature  was  procured  un- 
der the  representation  that  it  was  a  will,  i 
Smith  V.  Moore,  7:  684,  55  S.  E.  275,  142  N. 
C.  277. 

1390.  Declarations  of  a  person  since  de- 
ceased that  he  had  not  started,  and  did  not 
intend  to  start,  .actions  to  recover  property 
which  he  had  conveyed,  are  not  against  his 
pecuniary  or  proprietary  interert,  so  as  to 
make  them  admissible  in  an  action  by  the 
attorney  to  recover  from  the  estate  com- 
pensation for  services  rendered  in  such 
suits.  Smith  v.  Hanson,  18:  520,  96  Pac. 
1087,  34  Utah,  171. 

1391.  Statements  made  by  a  mother,  since 
deceased,  after  acknowledging  and  recording 
a  deed  of  real  estate  to  her  infant  child,  as 
to  when  she  imderstood  the  conveyance  was 
to  take  effect,  and  declaring  that  it  was  re- 
corded against  her  wishes,  are  hearsay,  and 


EVIDENCE,  X.  d. 


1175 


cannot  be  proved  in  derogation  of  the  title 
of    the    child   or    her   grantee.      Pentico    v. 
Hays,  9:  224,  88  Pac.  738,  75  Kan.  76. 
In  action   for  alienating  affections. 

1392.  One  suing  her  husband's  parents  for 
causing  his  separation  from  her  is  not 
entitled  to  testify  to  declarations  by  him 
tending  to  show  their  hostile  attitude  and 
disposition,  which  were  made  in  their  ab- 
sence. Cochran  v.  Cochran,  24:  160,  89  N. 
E.  470,  196  N.  Y.  86. 

1393.  A  woman  sued  for  alienating  the 
affections  of  the  husband  of  another  woman 
from  her  may  testify  to  conversations  with 
him  in  plaintiffs  absence,  in  which  she  tried 
to  induce  him  to  return  to  his  wife,  where 
the  defense  is  that  he  sought  defendanc  for 
her  money.  Scott  v.  O'Brien,  16:  742,  110 
S.  W.  260,  129  Ky.  1. 

1394.  In  an  action  against  a  woman  for 
alienating  ^the  aifections  of  the  husband  of 
another  woman  from  her,  evidence  is  admis- 
sible of  remarks  by  him  that  defendant, 
with  her  money,  would  be  a  good  catch,  as 
well  as  conversations  and  letters  showing 
demands  on  her  by  him  for  money.  Scott 
V.  O'Brien,  16:  742,  110  S.  W.  260,  129  Ky. 
1. 

1395.  In  an  action  to  hold  a  man  liable  in 
damages  for  causing  his  son  to  leave  his 
wife,  evidence  is  admissible  of  the  reason 
given  by  the  son  for  leaving,  on  the  day  be- 
fore his  departure.  Ickes  v.  Ickes,  44: 
1 1 18,  85  Atl.  885,  237  Pa.  582. 

1396.  In  an  action  to  hold  a  man  liable  for 
causing  his  son  to  separate  from  his  wife, 
in  which  the  defense  is  that  the  separation 
was  caused  by  the  fact  that  the  wife  con- 
fessed that  a  child  she  was  carrying  was 
not  the  son's,  a  witness  called  to  testify  as 
to  the  son's  declaration  concerning  the  cause 
of  his  leaving  cannot  state  that,  when  the 
son  informed  him  that  he  had  had  trouble 
with  his  wife  and  was  going  to  leave  her,  he 
himself  stated  that  he  knew  all  about  it, 
having  overheard  the  confession.  Ickes  v. 
Ickes,  44:  1118,  85  Atl.  885,  237  Pa.  582. 
Criminal  cases. 

Acts  and  declarations  of  co-conspirators, 
see  infra,  X.  g. 

Admissibility  of  dying  declarations,  see  in- 
fra, X,  1. 

Admissibility  of  testator's  declarations  in 
prosecution  for  forgery,  see  infra,  1438, 
1440. 

Prejudicial  error  as  to,  see  Appeal  and 
Erbob,  1123. 

See  also  supra,  1384,  1385. 

1397.  Contradictory  statements  made  out 
of  court  by  a  witness  in  a  homicide  case 
cannot  be  received  unless  for  purposes  of 
impeachment,  and  not  as  substantive  evi- 
dence. Watkins  v.  Com.  38:  1052,  142  S. 
W.  1035,  146  Ky.  449. 

1398.  Upon  trial  of  a  man  for  incest  who 
left  home  after  the  charge  was  made,  evi- 
dence is  not  admissible  of  a  conversation 
between  his  wife  and  her  brother,  in  his  ab- 
sence, in  which,  because  of  an  assumed  sepa- 
ration, she  was  advised  to  return  to  her 
father.  Gross  v.  State,  33:  477,  135  S.  W. 
373,  61  Tex.  Crim.  Rep.  176. 
Digest   1-52   L.R.A.(N.S.) 


1399.  In  a  prosecution  for  the  illegal  sale 
of  intoxicating  liquor,  the  testimony  of  an 
officer  that  he  had  watched  certain  persons 
who  had  previously  testiried  to  having  pur- 
chased intoxicating  liquor  from  the  accused 
on  the  date  of  the  alleged  sale,  shortly 
after  they  had  come  from  the  place  where 
the  accused  was,  and  had  questioned  them, 
and  was  told  by  them  that  they  had  whisky, 
and  upon  arresting  them,  had  found  whisky 
in  their  possession,  is  admissible.  Jones  v. 
State,  48:  204,  133  Pac.  249,  9  Okla.  Crim. 
Rep.  646. 

1400.  Evidence  of  a  conversation  between 
one  who  was  attempting  to  secure  aid  for 
one  upon  whom  an  abortion  had  been  com- 
mitted and  a  physician  who  refused  to  at- 
tend the  case,  while  such  person  was  tele- 
phoning from  his  oflice  to  secure  the  aid  of 
the  one  subsequently  accused  of  the  crime, 
is  not  admissible  against  the  latter,  since 
it  is  mere  hearsay.  State  v.  Gilmore,  35: 
1084    132  N,  W.  53,  151  Iowa,  618. 

1401.  Upon  trial  of  one  charged  with  as- 
sisting in  the  importation  of  a  contract 
laborer  into  the  country,  evidence  is  not 
admissible  against  him,  of  a  statement 
made  in  the  foreign  country  in  an  unused 
manifest  blank  by  one  not  shown  to  be  the 
agent  of  accused,  to  the  effect  that  accused 
paid  the  passage  money  of  the  laborer. 
Regan  v.  United  States,  31:  1073,  183  Fed. 
293,  105  C.  C.  A.  505. 

1402.  A  person  held  in  custody  on  a  charge 
of  crime  is  not  called  upon  to  contradict 
statements  prejudicial  to  him,  made  in  his 
presence  by  another;  and  though  such  state- 
ments were  not  contradicted  by  such  per- 
son, they  are  not  admissible  in  evidence 
against  him.  Ellis  v.  State,  43:  811,  128 
Pac.  1095,  8  Okla.  Crim.  Rep.  522. 

1403.  Upon  trial  of  one  for  larceny  decla- 
rations of  his  wife,  made  in  his  presence, 
and  uncontradicted  by  him,  to  the  effect 
that  stolen  property  found  in  the  house  be- 
longed to  him,  are  admissible  against  him. 
State  v.  Record,  25:  561,  65  S,  E.  1010,  151 
N.  C.  695. 

1404.  An  extra-judicial  confession  not  un- 
der oath,  by  a  stranger  who  cannot  be  pro- 
duced as  a  witness,  is  not  admissible  at  the 
trial  of  an  indictment  for  murder.  Brown 
v.  State,  37:  345,  55  So.  961,  99  Miss.  719. 
—  Acts  and  declarations  of  victim  of 

crime. 
See  also  infra,  1655. 

1405.  Evidence  of  statements  of  one  who 
was  knocked  senseless  by  one  attempting 
to  rob  him,  immediately  upon  regaining 
consciousness,  as  to  the  identity  of  his  as- 
sailant, is  not  admissible  as  res  gestce  in 
a  prosecution  of  the  person  so  named  for 
the  crime.  Rogers  v.  State,  41:857,  115 
S.  W.  156,  88  Ark.  451. 

1406.  Statements  by  one  injured  in  a  quar- 
rel, made  some  hours  after  the  injuries 
were  received  and  purporting  to  detail  what 
occurred,  are  not  admissible  as  res  gestce 
in  a  prosecution  of  the  one  who  indicted 
the  injuries.  Salas  v.  People,  37:  252,  118 
Pac.  992,  51  Colo.  461. 

1407.  The  state  cannot  prove,  over  the  ob- 


1176 


EVIDENCE,  X,  e. 


jection  of  one  accused  of  having  ravished 
the  witness's  wife,  the  details  of  a  com- 
plaint made  by  her  to  him  some  twenty 
hours  after  the  alleged  criminal  act.  Hen- 
derson V.  State,  26:  1 149,  123  N.  W.  459,  85 
Neb.  444. 

e.  Acts  and  declarations  of  agent,  rep- 
resentative, or  tenant. 

^dee  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Admissibility  of  records  and  reports  of  cor- 
porate agents,  see  supra,  IV.  1. 

Admissibility  of  letters  of,  see  supra,  811- 
815. 

Admissions  by,  see  supra,  1249-1257. 

Admissibility  to  contradict  witness,  see 
Witnesses,  145. 

See  also  Witnesses,  150. 

1408.  Upon  the  question  of  fraud  in  in- 
ducing a  contract,  evidence  is  admissible 
of  declarations  of  the  agent  who  secured  it 
at  the  time  it  was  made.  American  Pure 
Food  Co.  V.  Elliott,  31:910,  66  S.  E.  451, 
151  N.  C.  393. 

1409.  Statements  by  an  alleged  agent,  not 
brought  to  the  knowledge  of  the  principal, 
are  not  admissible  to  show  the  extent  of 
the  agent's  authority.  Mason  v.  Wolkowich, 
10:  765,  150  Fed.  699,  80  C.  C.  A.  435. 

1410.  The  admission  of  declarations  of  an 
alleged  agent  tending  to  establish  the  agen- 
cy, in  an  action  against  the  principal,  is 
not  error  where  a  prima  facie  case  of  con- 
nection between  the  alleged  principal  and 
agent  has  been  shown.  Mullen  v.  J.  J. 
Quinlan  &  Co.  24:  511,  87  N.  E.  1078,  195 
N.  Y.  109. 

As  to  accident  or  injury. 
Admissibility     of     admissions,     see     supra, 
1250-1252. 

1411.  A  statement  by  an  employee  twenty 
minutes  after  he  had  caused  an  accident  by 
starting  machinery,  in  response  to  a  ques- 
tion as  to  why  he  did  so,  is  lot  admissible 
in  evidence,  in  an  action  to  hold  the  em- 
ploj'er  liable  for  the  injury,  as  part  of  the 
res  gestce.  Bernard  v.  Grand  Rapids  Paper 
Box  Co.  42:  930,  136  N.  W.  374,  170  Mich. 
238.  (Annotated) 

1412.  Statements  made  by  a  chauffeur  at 
the  time  of  an  accident  which  occurred 
while  he  was  using  the  machine  in  violation 
of  his  express  orders  are  not  binding  upon 
the  owner.  Riley  v.  Roach,  37:  834,  134  N. 
W.  14,  168  Mich.  294. 

1413.  The  conduct  of  a  chauffeur  after  col- 
lision of  his  machine  with  a  pedestrian  is 
not  relevant  in  an  action  to  hold  the  owner 
of  the  vehicle  liable  for  the  injury,  except 
in  so  far  as  it  may  be  part  of  the  res  gestce, 
and  tend  to  throw  light  on  the  act  which  is 
charged  to  be  negligent.  Minor  v.  Stevens, 
43:  1178,  118  Pac.  313,  65  Wash.  423. 

1414.  Evidence  of  statements  by  an  agent 
with  authority  to  set  out  a  fire  which  re- 
sulted In  injury  to  a  child,  made  at  the 
time  of  the  fire  and  as  part  of  the  res 
gestce,  is  admissible  against  his  principals 
in  an  action  brought  to  hold  them  liable 
Digest  1-52  L.R.A.(N.S.) 


for  the  injury.  Arkansas  Valley  Trust  Co. 
V.  Mcllroy,  31:  1020,  133  S.  W.  816,  97  Ark. 
IGO. 

1415.  In  an  action  to  hold  the  owner  of  a 
steer  liable  for  injuries  done  by  it  to  a 
traveler  on  the  highway,  evidence  is  not  ad- 
missible that  the  day  after  the  injury  the 
drover  in  charge  of  the  animal  stated  that 
the  animal  was  vicious  and  attempted  to  in- 
jure others,  since  the  agent's  declarations  at 
such  time  cannot  bind  the  principal.  Har- 
ris v.  Carstens  Packing  Co.  6:  1164,  86  Pac. 
1125,  43  Wash.  647. 

1416.  In  an  action  by  a  tenant  for  injuries 
caused  by  negligent  blasting  for  which  his 
landlord  is  alleged  to  be  responsible,  evi- 
dence is  not  admissible  that  the  landlord's 
superintendent,  after  the  injury,  made  state- 
ments as  to  making  repairs  or  furnishing 
another  house,  or  that  the  lardlord  was  do- 
ing the  work.  Bessemer  Coal,  Ii^n,  &  Land 
Co.  v.  Doak,  12:  389,  44  So.  627,  152  Ala. 
166. 

1417.  Declarations  of  village  officers  at  the 
coroner's  inquest  upon  one  killed  on  an  un- 
safe highway,  as  to  their  knowledge  of  such 
condition,  are  not  admissible  in  an  action 
to  hold  the  village  liable  for  the  injury. 
Fox  V.  Manchester,  2:  474,  75  N.  E.  1116, 
183  N.  Y.  141. 

—  To  employee. 

1418.  The  statement  of  a  street-car  super- 
intendent, made  some  time  after  a  collision 
between  two  cars,  and  after  the  cars  had 
been  removed  to  another  place,  that  he 
should  have  known  better  than  to  place  the 
motorman  responsible  for  the  collision,  in 
charge  of  the  car,  is  not  admissible  in  an 
action  against  the  company  to  recover  for 
injuries  to  an  employee  on  the  other  car. 
Ft.  Wayne  &  W.  V.  Traction  Co.  v.  Cros- 
bie,  13:  1214,  81  N.  E.  474,  169  ind.  281. 

1419.  Evidence,  in  an  action  for  injuries 
to  plaintiff  while  engaged  in  unloading  steel 
rails  from  a  car,  cause,  by  the  dropping  of 
a  lever  or  boom  rail,  together  with  the 
heavy  steel  rail  which  it  was  carrying  from 
vhe  car  at  the  time,  that  the  operator  of  the 
derrick  used,  upon  witnessing  the  accident, 
immediately  exclaimed  that  "the  damn 
thing  was  about  wore  out  anyhow,  and  they 
would  keep  running  it  until  they  killed 
somebody,"  is  not  admissible  as  a  part  of 
the  res  gestce;  the  declaration  relating,  not 
to  the  accident,  but  to  a  condition  of  the 
machinery  previously  observed,  and  showing 
retrospection  and  mental  deliberation.  Illi- 
nois C.  R.  Co.  V.  Lowery,  49:  1149,  63  So. 
952,  184  Ala.  443. 

1420.  A  statement  by  the  conductor  of  a 
train  which  broke  in  two  and  injured  an 
employee  thereon,  as  to  the  cause  of  the 
break,  made  a  half  hour  after  he  had  as- 
certained it,  in  response  to  a  question  by 
the  injured  person,  is  not  admissible  in  evi- 
dence in  an  action  to  hold  the  railroad 
company  liable  for  the  injury,  under  a 
statute  making  admissible  declarations 
which  form  part  of  the  transaction  which 
is  itself  the  fact  in  dispute  or  evidence  of 
such  fact.  Callahan  v.  Chicago,  B.  &  Q.  R. 
Co.  47:  587,  133  Pac.  687,  47  Mont.  401. 


EVIDENCE,  X.  e. 


1177 


\. 


1421.  Statements  to  an  employee  injured 
on  a  train,  by  the  conductor  and  road- 
master,  whose  duties  are  to  ascertain  the 
cause  of  the  accident  and  the  nature  and 
extent  oi  the  injuries  caused  by  it,  and  re- 
port the  same  to  their  superior  oflficers, 
made  while  attempting  to  ascertain  the  ex- 
tent of  his  injuries,  as  to  the  cause  of  the 
accident,  are  admissible  in  evidence  against 
the  railroad  company  in  an  action  to  hold 
i*  liable  for  the  injury,  as  admissions  in  the 
line  of  their  duty.  Callahan  v.  Chicago,  B. 
&  Q.  R.  Co.  47:  587,  133  Pac.  687,  47  Mont. 
401. 

1422.  Statements  by  the  conductor  in 
charge  of  a  train  the  engine  of  which  was 
derailed  to  the  injury  of  the  engineer  and 
head  brakeman,  at  a  time  when  he  had  the 
responsibility  of  caring  for  the  injured  men, 
to  the  first  stranger  to  reach  the  scene  of 
the  disaster,  as  to  thj  cause  of  the  accident, 
may,  in  the  discretion  of  the  trial  judge,  be 
admitted  as  res  gestce,  in  an  action  against 
the  railroad  company  to  recover  damages 
for  the  death  of  the  brakeman,  although 
they  were  not  made  until  two  hours  after 
the  accident,  and  until  after  he  had  gone  to 
a  farmhouse  some  distance  away  to  sum- 
mon assistance  and  returned  to  the  train. 
Walters  v.  Spokane  International  R.  Co. 
42:  917,  108  Pac.  593,  58  Wash.  293. 

(Annotated) 
—  On  railroad  or  street  car  track. 

1423.  Evidence  of  a  statement  by  an  engi- 
neer in  charge  of  a  locomotive  which  struck 
and  injured  a  person  on  the  track,  at  the 
first  station  where  a  stop  was  made  after 
the  accident,  that  he  had  knocked  a  man 
from  the  track,  is  inadmissible  as  res  gestce. 
Frye  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  8:  1069, 
98  S.  W.  566,  200  Mo.  377. 

1424.  The  statement  of  a  motorman  in 
charge  of  a  car  which  killed  a  person  on  the 
track,  immediately  after  the  accident  when 
he  had  reached  the  body  of  deceased,  that 
he  saw  the  man  and  tried  to  stop,  but  could 
not,  is  admissible  in  an  action  against  the 
street  car  company  to  recover  damages  for 
the  death  as  part  of  the  res  gestce,  when 
one  controversy  in  the  case  is  whether  de- 
ceased was  struck  by  the  front  of  the  car, 
or  fell,  or  was  pushed  against  the  side  of 
it.  Louisville  R.  Co.  v.  Johnson,  20:  133, 
115   S.  W.  207,   131  Ky.  277. 

1425.  The  statement  by  the  conductor  of  a 
car  which  kills  a  man  on  the  track,  made 
when  he  and  the  motorman  had  reached  de- 
ceased, admonishing  the  motorman  to  make 
no  statements,  is  not  admissible  as  res 
gestce  in  an  action  against  the  street  car 
company  to  recover  damages  for  the  death, 
since  it  does  not  tend  to  throw  light  upon 
any  phase  of  the  controversy.  Louisville 
R.  Co.  V.  Johnson,  20:  133,  115  S.  W.  207, 
131  Ky.  277. 

Corporate  officers  and  agents  general- 
ly. 

As  to  accident  or  injury,  see  supra,  1418- 
1425. 

1426.  The  statements  of  the  receiving 
clerk  and  cashier  in  the  main  office  of  a 
telegraph  company  respecting  matters 
Digest  1-52  I..R.A.(N.S.) 


within  the  apparent  scope  of  their  au- 
thority are  not  hearsay.  Western  U. 
Teleg.  Co.  v.  Wells,  2:  1072,  39  So.  838,  oU 
Fla.  474. 

1427.  The  declarations  and  conduct  of  the 
agent  of  a  corporation  who  has  been  in- 
trusted with  the  rental  and  management  of 
its  property  are  admissible  in  evidence 
against  it  in  an  action  to  recover  damages 
for  his  causing  the  wrongful  arrest  of  a 
tenant  to  get  rid  of  him.  White  v.  Apsley 
Rubber  Co.  8:  484,  80  N.  E.  500,  194  Mass. 
97. 

Carrier's  agent. 

1428.  Evidence  of  insulting  remarks  by  a 
brakeman  about  a  passenger  in  his  hearing 
is  admissible  against  the  railroad  company. 
Southern  R.  Co.  v.  Thurman,  2:  1108,  90  S. 
W.  240,  121  Ky.  716. 

1429.  Evidence  of  statements  of  a  brake- 
man  to  a  stranger  four  or  five  minutes 
after  he  has  removed  a  person  from  the  car, 
in  explanation  of  his  act,  is  not  admissible 
in  evidence  against  the  railroad  company  as 
part  of  the  res  gestce.  Southern  R.  Co.  v. 
Thurman,  2:  1108,  90  S.  W.  240,  121  Ky. 
716. 

1430.  Declarations  of  a  brakeman  who  has 
removed  a  woman  from  a  car  to  which  she 
is  returning  under  charge  of  the  conductor, 
derogatory  to  her  character,  are  not  admis- 
sible against  the  railroad  company,  since 
the  brakeman's  authority  has  ceased,  and 
the  declarations  are  not  made  in  the  course 
of  the  master's  business.  Southern  R.  Co. 
V.  Thurman,  2:  1108,  90  S.  W.  240,  121  Ky. 
716. 

1431.  Declarations  of  the  train  agent  when 
-confiscating  a  passenger's  ticket  and  remov- 
ing him  from  the  train  are  admissible  in 
evidence  in  an  action  to  hold  the  railroad 
company  liable  for  the  injuries  thereby 
caused.  Forrester  v.  Southern  P.  Co.  48:  1, 
134  Pac.  753,  136  Pac.  705,  36  Nev.  247. 

1432.  In  an  action  against  a  carrier  for 
the  value  of  a  package  lost  by  it  in  trans- 
portation, evidence  is  admissible  of  a  state- 
ment by  its  agent  who  called  upon  the 
owner's  attorney  to  settle  the  claim,  that 
the  package  had  been  embezzled  by  the  car- 
rier's servant.  Adams  Express  Co.  v.  Berry 
&  Whitmore  Co.  31 :  309,  35  App.  D.  C.  208. 
Insurance  agent. 

Waiver  of  error  as  to,  see  Appeal  and  Er- 
ror, 838. 
Physician  of  insured. 

1433.  A  letter  written  by  the  physician  of 
one  insured  against  accident  describing  an 
illness,  at  the  request  of  insured,  to  satisfy 
a  demand  of  the  insurer,  is  not  binding  on 
the  insured  so  as  to  be  admissible  in  evi- 
dence against  him  in  an  action  on  the  pol- 
icy, if  he  did  not  know  its  contents.  Al- 
dridge  v.  Mtna,  L.  Ins.  Co.  38:  343,  97  N. 
E.  399,  204  N.  Y.  83.  (Annotated) 
Tenant. 

1434.  In  an  action  against  a  property  own- 
er for  the  price  of  lumber  delivered  on  his 
premises,  evidence  is  not  admissible  as  to 
statements  of  the  tenant  at  time  of  delivery 
in  his  absence.  Walter  v.  Sperry,  44:28, 
85  Atl.  739,  86  Conn.  474. 


1178 


EVIDENCE,  X.  f. 


/.  Acts  or  declarations  of  former  party 
in  interest;  testator  or  former 
owner. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Of  testator. 

See  also  supra,  1349. 

1435.  Conduct  and  declarations  of  a  tes- 
tator manifesting  ignorance  of  the  existence 
of  his  will  are  not  competent  on  the  ques- 
tion of  its  validity  or  existence.  La  Rue 
V.  Lee,  14:  968,  60  S.  E.  388,  63  W.  Va.  388. 

1436.  Ante-testamentary  declarations  of  a 
testator  are  not  admissible  as  substantive 
evidence  of  undue  influence  in  the  making  of 
the  will.  Hobson  v.  Moorman,  3:  749,  90 
S.  W.  152,  115  Tenn.  73.  (Annotated) 

1437.  Upon  the  question  of  the  revival  of  a 
will  by  destruction  of  an  instrument  pur- 
porting to  revoke  it,  declarations  of  testator 
at  the  time  of  destroying  the  latter  instru- 
ment are  admissible  in  evidence.  Blackett 
V.  Ziegler,  37:  291,  133  N.  W.  901,  153  Iowa, 
344. 

1438.  Upon  trial  of  a  prosecution  for  con- 
spiracy to  forge  a  will  so  as  to  establish 
title  in  testator's  widow  to  certain  proper- 
ties including  an  automobile,  evidence  is 
admissible  of  a  declaration  made  by  testa- 
tor before  his  death  that  he  had  given  the 
machine  to  her;  and  it  is  immaterial  that 
the  declaration  was  made  before  the  instru- 
ment purported  to  have  been  executed,  if 
the  reference  to  the  gift  which  it  contained 
is  a  mere  recital  of  a  past  transaction. 
People  V.  Storrs,  45:  860,  100  N.  E.  730,  207 
N.  Y.  147. 

—  As  to  intent  generally. 

1439.  In  the  absence  of  ambiguity  in  a  will 
parol  evidence  of  declarations  of  testator  as 
to  his  intention  is  not  admissible.  Scott  v. 
Scott,  23  :  716,  114  N.  W.  881,  137  Iowa,  239. 

1440.  In  defense  of  a  prosecution  for  for- 
gery of  a  will,  evidence  is  admissible  of 
declarations  of  the  testator  indicating  an 
intent  to  execute  a  will  of  the  tenor  of  that 
alleged  to  have  been  forged,  if  made  at  a 
period  not  so  remote  from  the  date  of  the 
will  as  to  render  them  immaterial.  State 
v.  Ready  (N.  J.  Err.  &  App.)  28:  240,  75 
Atl.  564,  78  N.  J.  L.  599.  (Annotated) 

1441.  Statements  by  testator,  either  before 
or  after  the  execution  of  his  will,  with  re- 
spect to  his  intention  to  disinherit  a  child 
born  after  the  execution  of  the  will,  are 
not  admissible  for  the  purpose  of  ascer- 
taining his  intention  in  that  respect,  under 
a  statute  which  provides  that,  in  case  a 
child  for  whom  no  provision  is  made  is 
born  to  the  testator  after  the  execution  of 
the  will,  the  devises  and  legacies  shall  abate 
to  raise  a  portion  for  such  child  equal  to 
that  which  he  would  have  received  had  the 
testator  died  intestate,  unless  it  appears 
"by  such  will"  that  it  was  the  intention  of 
the  testator  to  disinherit  such  child;  but 
it  is  competent,  for  that  purpose,  to  con- 
sider the  language  of  the  will  in  the  light 
of  the  ertrinsic  circumstances  surrounding 
the  testator  at  the  time  of  its  execution. 
Digest  1-52  I..R.A.(N.S.) 


Peet  V.  Peet,  13:  780,  82  N.  E.  376,  229  111. 
341.  (Annotated) 

—  As  to  intent  to  destroy  neill. 

1442.  Subsequent  declarations  of  a  testa- 
tor are  admissible  in  evidence  in  a  pro 
ceeding  to  probate  a  will  which  had  been 
destroyed  by  him,  upon  the  question  of  the 
intention  with  which  the  will  was  destroyed. 
Managle  v.  Parker,  24:  180,  71  Atl.  637,  75 
N.  H.  139.  (Annotated) 

1443.  Evidence  of  declarations  of  a  testa- 
tor as  to  his  intent  in  tearing  a  will  is 
not  inadmissible  because  it  will  tend  to 
establish  the  will,  which  the  heirs  had  been 
led  to  believe  was  revoked,  and  therefore 
perpetrate  a  fraud  on  them.  Managle  v. 
Parker,  24:  180,  71  Atl.  637,  75  N.  H.   139. 

—  To   shotp   lack  of  testamentary   ca- 

pacity. 

1444.  Upon  a  will  contest,  evidence  of 
declarations  tending  to  show  want  of  testa- 
mentary capacity  may  be  admitted  in  evi- 
dence, although  made  after  the  execution 
of  the  will.  O'Dell  v.  Goff,  10:  989,  112 
N.  W.  736,  149  Mich.  152. 

Of  former  ow^ner. 

Cross-examination  of  one  testifying  to  con- 
versation between  parties  to  deed,  see 
Witnesses,  77. 

Reversible  error  in  excluding,  see  Appeal 
AND  Ebrok,  1226. 

See  also  supra,  967,  1386-1391. 

1445.  In  an  action  by  the  finder  of  money 
against  one  to  whom  he  delivered  it  for 
safe-keeping,  and  who  refused  to  return  it 
because  he  claimed  to  have  delivered  it  to 
the  true  owner,  evidence  is  admissible  of 
a  denial  by  the  alleged' owner  that  he  had 
lost  the  money,  although  made  in  the  de- 
fendant's absence.  Roberson  v.  Ellis,  35: 
979,  114  Pac.  100,  58  Or.  219. 

—  Of  mortgagor  against  mortgagee. 

1446.  The  mere  relation  of  mortgagor  and 
mortgagee  does  not  create  such  a  privity  of 
estate  as  to  render  the  declarations  of  one 
with  regard  to  the  property  admissible  in 
evidence  against  the  other.  Mower  v.  Mc- 
Carthy, 7:  418,  64  Atl.  578,  79  Vt.  142.  | 

1447.  Statements  of  a  mortgagor  tending 
to  show  intent  on  his  part  to  defraud  his 
creditors,  with  which  the  mortgagee  is  in  no  » 
wise  connected,  are  not  admissible  in  an  ac- 
tion to  recover  property  from  the  mortgagee 
after  he  has  taken  possession  of  it  under 
his  mortgage.     Mower  v.  McCarthy,  7:  418, 

64  Atl.   578,  79  Vt.   142. 

1448.  Evidence  of  a  statement  by  a  mort- 
gagor that  the  mortgagee  had  loaned  him 
money  and  had  a  right  to  take  possession 
of  the  property  at  any  time  is  admissible 
in  an  action  on  behalf  of  creditors  to  recov- 
er possession  of  the  property  from  the  mort- 
gagee after  he  has  taken  possession  of  it 
under  his  mortgage.  Mower  v.  McCarthy, 
7:  418,  64  Atl.  578,  79  Vt.  142. 

—  Of  grantor  or  donor  against  gran- 

tee or  donee. 

1449.  Declarations,  against  title,  of  an 
owner  in  possession,tare  admissible  in  evi- 
dence against  those  claiming  under  him, 
although  he  is  alive  at  the  time  they  are 


EVIDENCE,  X.  g. 


1179 


oflfered  in  evidence.     Abbott  v.  Walker,  26: 
814,  90  N.  E.  405,  204  Mass.  71. 

(Annotated) 

1450.  A  defendant  in  an  action  by  the  ad- 
ministrator of  a  deceased  grantor  to  com- 
pel payment  of  the  consideration  named 
in  the  deed  cannot,  under  the  statute,  tes- 
tify as  to  conversations  with  the  grantor 
at  the  time  of  the  transaction,  unless  called 
and  examined  by  plaintiff  in  regard  there- 
to. Koogle  V.  Cline,  24:  413,  73  Atl.  672, 
110  Md.  587. 

3451.  The  attorney  who  prepared  a  deed 
from  a  father  to  his  son  may  testify,  in  a 
suit  to  compel  the  son  to  pay  the  consid- 
eration named  in  the  deed,  as  to  state- 
ments made  by  the  father  in  the  son's  pres- 
ence at  the  time  the  deed  was  prepared,  to 
the  effect  that  the  deed  was  intended  as  a 
gift.  Koogle  V.  Cline,  24:  413,  73  Atl.  672, 
110  Md.   587. 

1 452  A  son  who,  having  entered  into  pos- 
session of  his  father's  land  by  the  latter's 
permission,  fails  to  show  that  it  was  given 
to  him  as  an  advancement,  or  that  he  has  se- 
cured title  by  adverse  possession,  cannot 
complain  of  the  admission  in  evidence,  in 
an  action  for  partition  of  the  property,  of 
declarations  by  his  father  as  to  his  title  or 
intentions  as  to  the  "property.  McCutchen 
v.  McCutchen,  12:  1140,  57  S.  E.  678,  77  S. 
C.  129. 

1453.  In  an  action  for  damages  for  tres- 
pass upon  real  estate,  declarations  of  de- 
fendant's predecessor  in  title,  as  to  the 
boundary  lines  made  while  he  was  owner 
of  the  property,  are  admissible  in  evidence 
against  defendant.  Beaufort  Land  &  Invest. 
Co.  V.  New  River  Lumber  Co.  30:  243,  68 
S.  E.  637,  86  S.  C.  358. 

1454.  Evidence  of  declarations  of  an  al- 
leged donor  is  admissible  as  corroborative 
of  evidence  of  the  gift.  Garrison  v.  Union 
Trust  Co.  32:  219,  129  N.  W.  691,  164  Mich. 
345. 

—  Of  grantor  in  favor  of  grantee. 

1455.  The  declarations  of  a  father  and 
mother  made  to  the  scrivener  of  a  deed 
whereby  a  farm  was  conveyed  by  them  to 
their  son  for  an  express  consideration,  which 
was  nominal,  that  the  son  was  dissatisfied 
with  having  worked  on  the  farm  for  a 
long  time  without  pay  and  that,  unless  he 
received  something  to  show  for  it,  he  would 
leave,  so  to  jecompense  him  they  were  giv- 
ing him  the  farm,  are  inadmissible  in  an 
action  between  such  son  and  a  creditor 
wherein  the  good  faith  of  the  deed  is  in- 
volved, where  the  statements  (the  reason 
for  the  making  of  which  does  not  appear) 
were  not  made  in  the  presence  of  either 
the  son  or  the  creditor  in  suit,  nor  under 
circumstances  which  were  a  substitute  for 
the  usual  test  of  an  oath  and  cross-exam- 
ination, and  were  not  a  part  of  the  prin- 
cipal act  in  suit,  which  is  the  good  faith 
of  the  transaction  and  not  the  act  of  deed- 
ing the  land,  but  were  made  under  circum- 
stances which  admitted  of  premeditation 
and  voluntary  wariness  seeking  to  manu- 
Digest  1-52  I^B.A.CN.S.) 


facture   evidence.     Johnston  v.   Spoonheim, 
41:  I,   123  N.  W.  830,  19  N.  D.  191. 

( Annotated ) 
—  By  former  opener  of  note. 

1456.  In  an  action  upon  a  promissory  note 
given  for  a  patent  right,  although  the  note 
was  not  so  indorsed,  where  it  appears  that 
the  indorsee  and  his  predecessors  in  title 
had  knowledge  of  the  consideration,  the 
maker  may  prove  by  a  third  party  declara- 
tions of  the  payee,  made  while  in  posses- 
sion of  the  note,  and  tending  to  impeach  its 
validity.  Benton  v.  Sikyta,  24:  1057,  122 
N.  W.  61,  84  Neb.  808. 

g.  Acta  or  declarations  of  partner,  as- 
sociate, co'conspirator  or  codefend- 
ant. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Codefendants. 

1457.  Evidence  of  statements  by  one  of 
several  codefendants  sought  to  be  held  lia- 
ble for  the  negligent  burning  of  a  child 
through  fire  set  out  by  him,  made  after 
the  occurrence  and  in  the  absence  of  the 
other  defendants,  to  the  effect  that  he  told 
the  child  to  watch  the  fire  is  not  admissi- 
ble against  them.  Arkansas  Valley  Trust 
Co.  V.  Mcllroy,  31 :  1020,  133  S.  W.  816,  97 
Ark.  160. 

Colegatees. 

1458.  The  declarations  of  one  of  several 
beneficiaries  under  a  will  whose  interests 
are  not  joint,  made  long  enough  after  the 
execution  of  the  will  so  as  not  to  be  part  of 
the  res  gestw,  are  not  admissible  In  evi- 
dence to  show  testator's  incapacity  to  make 
the  will,  or  that  he  was  unduly  influenced, 
in  the  proceeding  to  which  all  the  benefic- 
iaries are  parties.  James  v.  Fairall,  38: 
731,  134  N.  W.  608,  154  Iowa,  253. 

(Annotated) 
j  Partners. 

Admissions    of    partner,    see    supra,    1258. 

Co-conspirators. 

Prima  facie  proof  of  conspiracy  as  condition 
of  right  to  admission  of  declarations, 
see  Trial,  38. 

Mode  of  preserving  error  in  admitting,  see 
Appeal  and  Error,  368. 

Prejudicial  error  as  to,  see  Appeal  and  Er- 
ror, 1124. 

Weight  of  testimonv  of  accomplice,  see  Evi- 
dence, 2364-2372. 

1459.  A  conspiracy  may  be  proved  by 
showing  the  declarations,  acts, 'and  conduct 
of  the  conspirators.  State  v.  Ryan,  i:  862, 
82  Pac.  703,  47  Or.  338. 

1460.  The  existence  of  evidence  in  a  will 
contest  tending  to  show  the  existence  of  a 
conspiracy  will  render  admissible  admissions 
of  one  of  the  conspirators  along  the  line  of 
the  conspiracy,  touching  its  subject-matter, 
and  in  furtherance  thereof.  Meier  v.  Buch- 
ter,  6:  202,  94  S.  W.  883,  197  Mo.  68. 

1461  Evidence  of  acts  and  declarations  of 
persons  alleged  to  have  been  engaged  in  an 
unlawful  combination  to  prevent  competi- 
tion is   admissible   not   only   to  charge  the 


1180 


EVIDENCE,  X.  h. 


several  persons  engaged  therein  with  the 
consequence  of  such  acts,  but  also  to  estab- 
lish the  existence  and  extent  of  the  combi- 
nation. Cleland  v.  Anderson,  5:  136,  92  N. 
W.  306,  96  N.  W.  212,  98  N.  W.  1075,  66 
Neb.  252,  105  N.  W.  1092,  75  Neb.  273. 

1462.  The  acts  of  any  member  of  an  as- 
sociation of  retail  dealers,  or  of  any  person 
acting  in  concert  with  him,  in  endeavoring 
to  prevent  or  hinder  sales  by  wholesale 
dealers  to  a  particular  retail  dealer  not 
eligible  to  membership  in  the  association, 
are  in  furtherance  of  the  common  design, 
where  the  express  object  of  the  association 
is  to  prevent  competition  by  wholesalers  in 
selling  to  consumers  directly,  or  to  retail 
dealers  not  eligible  to  membership  in  the  as- 
sociation; and  such  acts  may  be  shown  in 
evidence  against  all,  whether  directly  par- 
ticipated in  or  expressly  authorized  by  the 
association  as  a  whole,  or  not.  Cleland  v. 
Anderson,  5:  136,  92  N.  W.  306,  96  N.  W. 
212,  98  N.  W.  1075,  66  Neb.  252,  105  N.  W. 
1092,  75  Neb.  273. 

1463.  Upon  trial  of  one  for  homicide 
through  an  abortion  which  was  alleged  to 
have  been  the  result  of  a  conspiracy  be- 
tween accused  and  the  victim,  declarations 
of  the  latter  in  the  absence  of  accused, 
which  purport  to  be  a  recital  of  what  ac- 
cused did  and  said  during  the  commission 
of  the  crime,  are  not  admissible  in  evidence 
against  accused.  State  v.  Gilmore,  35:  1084, 
132  N.  W.  53,  151  Iowa,  618.      (Annotated) 

1464.  An  accomplice  of  one  on  trial  for 
murder  may  testify  as  to  their  trailing  the 
victim  before  any  suggestion  was  made  to 
kill  him,  and  also  as  to  what  the  parties 
did  and  agreed  to  do  after  the  money  taken 
from  the  victim  was  divided.  Grant  v. 
State,  42:  428,  148  S.  W.  760,  —  Tex.  Crim. 
Rep.  — , 

1465.  In  an  action  against  an  agent  of  an 
insurance  company  to  recover  secret  com- 
missions made  by  him  in  negotiating  a  re- 
insurance of  its  policies,  evidence  of  decla- 
rations of  the  other  party  to  the  negotiation 
is  admissible  to  prove  the  character  of  the 
transaction,  although  made  in  the  absence 
of  the  agent.  Johns  v.  Arizona  F.  Ins.  Co. 
49:  loi,  136  Pac.  120,  76  Wash.  349. 

—  Before  conspiracy  is  entered  into. 

1466.  Declarations  of  an  alleged  co-con- 
spirator, made  before  the  existence  of  the 
alleged  conspiracy,  are  not  admissible  in 
evidence  against  the  other  conspirators. 
State  V.  Gilmore,  35:  1084,  132  N.  W.  53, 
151   Iowa,  618. 

1467.  Upon  trial  of  one  accused  of  getting 
money  from  another  by  means  of  a  con- 
spiracy to  steal,  evidence  is  admissible  of 
declarations  by  one  of  the  conspirators 
which  induced  the  victim  to  go  to  the  de- 
sired spot,  where  the  others  carried  out 
the  scheme,  although  no  conspiracy  was 
shown  to  have  existed  at  the  time  they 
were  made.  State  v.  Ryan,  1:  862,  82  Pac. 
703,  47  Or.  338. 

1468.  Acts  or  declarations  of  an  alleged 
conspirator  are  not  admissible  against  a  co- 
conspirator, in  the  absence  of  evidence  from 
which  the  latter's  assent,  jointly  with  the 
Digest  1-52  I..R.A.(N.S.)  . 


other  conspirators,  to  the  existence  and  ex- 
ecution of  the  conspiracy  within  the  period 
of  statutory  limitation,  may  be  inferred; 
but,  if  such  joint  assent  is  shown,  tiien  any 
subsequent  act  or  declaration  of  any  one  of 
the  conspirators  in  reference  to  the  com- 
mon object  may  be  given  in  evidence 
against  one  of  the  others  who  has  consent- 
ed to  the  enterprise.  Ware  v.  United 
States,  12:  1053,  154  Fed.  577,  84  C.  C.  A. 
503. 
—  Subsequent  to  transactions. 

1469.  Statements  of  an  accomplice  who 
has  confessed  and  has  testified  to  the  de- 
tails of  the  crime,  made  some  days  after 
its  commission  to  witnesses  while  acting 
out  such  details  under  the  supervision  of 
the  police  at  the  place  of  commission,  are 
inadmissible  in  evidence  as  corroborative 
of  the  confession.  O'Hearn  v.  State,  25: 
542,   113  N.  W.  130,  79  Neb.  513, 

1470.  Upon  the  question  of  conspiracy,  to 
establish  which  some  evidence  has  been  of- 
fered, declarations  of  one  of  the  parties 
made  subsequent  to  the  transaction  are  ad- 
missible against  him,  but  not  against  the 
other  alleged  conspirators.  State  v.  Davis, 
34:  295,  70  S.  E.  811,  88  S.  C.  229. 

1471.  In  case  of  a  conspiracy  between  a 
widow  and  her  attorney  to  secure  property 
of  her  deceased  husband  by  means  of  a 
forged  will,  and  the  securing  of  the  neces- 
saiy  evidence  to  sustain  it  in  a  court  pro- 
ceeding in  which  he  is  to  represent  her,  evi- 
dence of  her  declarations  made  after  the 
will  is  prepared  while  she  is  endtavoring 
to  procure  testimony  to  sustain  it  is  ad- 
missible against  him.  People  v.  Storrs,  45: 
860,  100  N.  E.  730,  207  N.  Y.  147. 

h.  Complaints  of  injuries   and   suffer- 
ing. 

(See  also   same  heading   in  Digest  L.R.A. 
1-10.) 

See  also  supra,  1407. 

1472.  Witnesses  for  a  servant  may  testify 
in  an  action  to  hold  his  employer  respon- 
sible for  personal  injuries,  to  expressions 
of  existing  pain  at  a  time  long  subsequent 
to  the  date  of  injury.  Duflfey  v.  Consoli- 
dated Block  Coal  Co.  30:  1067,  124  N.  W. 
609,  147  Iowa,  225. 

1473.  Statements  of  fact  fairly  indicative 
of  a  relevant  bodily  condition  of  the  declar- 
ant at  the  time  of  the  declaration  are  ad- 
missible as  evidence  of  the  existence  of 
such  condition,  although  made  a  consider- 
able time  after  the  injury  was  received. 
Western  Travelers'  Acci.  Asso.  v.  Munson, 
i:  1068,  103  N.  W.  688,  73  Neb.  858. 

1474.  A  nonexpert  may  testify  as  to  ex- 
pressions of  present  pain  and  suffering  by 
one  injured  by  another's  negligence,  al- 
though they  occur  some  time  after  the  in- 
jury. Mississippi  C.  R.  Co.  v.  Turnage,  24: 
253,  49  So.  840,  95  Miss.  854.     (Annotated) 

1475.  Evidence  is  not  admissible  in  an  ac- 
tion to  hold  one  liable  in  damages  for  per- 


EVIDENCE,  X.  i— k. 


1181 


sonal  injuries  due  to  his  negligence,  to  the 
effect  that  two  months  after  tlie  accident 
the  injured  person  complained  to  his  phy- 
sician that  he  was  suffering  from  dizziness 
and  sleeplessness.  John  J.  Radel  Co.  v. 
Borches,  39:  227,  145  S.  W.  155,  147  Ky. 
606. 

1476.  Evidence  of  exclamations  of  a  person 
made  when  taking  a  dose  of  supposed  medi- 
cine, that  it  burned  her  stomach,  which 
exclamations  were  accompanied  by  a  wry 
face,  sudden  sickness,  and  vomiting,  is  ad- 
missible in  evidence  on  the  trial  of  one 
charged  with  poisoning  such  person.  State 
V.  Buck,  42:  854,  127  Pac.  631,  88  Kan.  114. 

i.  Threats. 

(See  also   same   heading   in  Digest  L.R.A. 
1-10.) 

See  also  supra,  1357-1359 ;  infra,  1893. 

1477.  Upon  a  prosecution  for  assault  with 
in'',ent  to  kill  evidence  is  admissible  that 
some  days  before  the  assault,  threats  had 
been  made  to  the  victim,  if  there  is  evi- 
dence tending  to  show  that  the  persons 
making  the  threats  were  in  the  party  which 
committed  the  assault.  People  v.  Connors, 
39:  143,  97  N,  E.  643,  253  111.  266. 

By  accused. 

1478.  Upon  trial  of  one  for  assault,  with 
fntent  to  kill  his  wife,  evidence  is  admissi- 
ble that,  on  the  evening  before  the  assault 
was  committed,  he  went  to  the  house  of  her 
parents,  where  she  was  staying,  with  the 
expectation  of  finding  her,  and  assaulted 
them  with  a  deadly  weapon,  and  threatened 
to  kill  the  wife  and  parents.  People  v. 
Owen,  21:  520,  118  N.  W.  590,  154  Mich. 
671. 

By  person  killed. 

1479.  Evidence  of  threats  by  dece£|^ed 
against  one  accused  of  killing  him,  prior  to 
the  conflict,  is  admissible  upon  the  ques- 
tion. Which  was  the  aggressor?  State  v. 
Doris,  16:  660,  94  Pac.  44,  51  Or.  136. 

1480.  Where  one  charged  with  homicide  of- 
fered evidence  tending  to  show  self-defense, 
evidence  is  admissible  to  show  recent 
threats  by  deceased  to  kill  accused  as  tend- 
ing to  show  who  was  the  aggressor,  al- 
though they  were  not  communicated  to  ac- 
cused. Howard  v.  State,  34:  ggo,  55  So.  255, 
172  Ala.  402. 

1481.  Evidence  of  uncommunicated  threats 
by  deceased  against  accused  are  admissible 
upon  trial  for  homicide  committed  by  a  po- 
lice officer  in  attempting  to  make  an  arrest, 
where  the  plea  is  self-defense,  and  the  evi- 
dence leaves  it  doubtful  which  was  the  ag- 
gressor, or  where  it  will  throw  light  on  the 
significance  of  the  acts  of  the  deceased,  and 
what,  from  them,  would  be  reasonable  ap- 
prehension on  the  part  of  the  accused.  Sin- 
clair V.  State,  2:  553,  39  So.  522,  87  Miss. 
830. 

1482.  One  accused  of  murder  may  show 
that  deceased  had  stated  that,  if  accused 
kept  on  going  with  the  girl  with  whom  he 
Digest  1-52  Ii.R.A.(N.S.) 


I  was  at  the  time  of  the  homicide,  "he  would 

.  get  killed  or  kill  somebody,"  in   connection 

with  evidence  of  direct  threats  at  tlie  time 

of  the  homicide.     State  v.  Beckner,  3:  535, 

91  S.  W.  892,  194  Mo.  281. 

1483.  In  a  homicide  case,  testimony  of 
antecedent  threats  or  acts  of  violence  by 
the  deceased  against  tlie  defendants  is  not 
admissible,  when  it  appears  that  at  the 
time  of  the  homicide  there  was  no  threat 
or  act  by  the  deceased,  which,  even  in  the 
light  of  any  previous  threats,  or  acts,  could 
justify  the  homicidal  act.  State  v.  ToUa, 
3:  523  (N.  J.  Err.  &  App.)  62  Atl.  675,  72 
N.  J.  L.  515.  (Annotated) 

J.  Telephone  conversations. 

(See  also   same   heading   in  Digest  L.B.A, 
1-10.) 

See  also  infra,  1811. 

1484.  One  in  the  office  of  one  of  the  par- 
ties to  a  telephone  conversation  at  the 
time  it  is  being  conducted,  and  claiming  to 
have  had  it  repeated  to  him  at  its  close, 
will  not  be  permitted  to  repeat  it  on  the 
witness  stand  in  a  suit  by  him  against  the 
absent  party  to  the  conversation,  since  the 
evidence  would  be  clearly  hearsay.  Win- 
ner V.  Silverman,  24:  895,  71  Atl.  962,  109 
Md.  341. 

Identification  of  parties  to. 

1485.  Evidence  of  a  telephone  conversa- 
tion is  admissible  against  a  corporation,  al- 
though the  voice  of  the  person  talking  was 
not  recognized,  where  witness  called  for  the 
corporation,  and,  in  response  to  inquiry, 
was  informed  that  he  was  talking  with  it. 
and,  upon  ordering  a  product  manufactured 
by  it,  received  what  he  ordered.  Knicker- 
bocker Ice  Co.  V.  Gardiner  Dairy  Co.  16: 
746,  69  Atl.  405,  107  Md.  556. 

1486.  Proof  that  the  plaintiff's  agent,  in  an 
attempt  to  deliver  a  telegrapli'';  message 
for  transmission,  used  the  teleplio.ie,  calling 
upon  the  telephone  company  for  a  connec- 
tion with  the  office  of  the  telegraph  com- 
pany, and,  upon  being  assured  by  the  per- 
son answering  that  it  was  the  telegraph 
office,  repeated  to  him  the  message  intended 
to  be  sent,  does  not  show  that  the  message 
was  in  fact  delivered  for  transmission,  so 
as  to  impose  liability  upon  the  telegraph 
company  for  failure  to  deliver  it,  where  the 
agent  of  the  plaintiff  did  ijot  recognize  the 
voice  of  the  person  who  answered  him  as 
that  of  an  agent  of  the  telegraph  company 
or  of  anyone  known  to  him,  and  it  does  not 
appear  that  such  person  was  in  fact  an 
agent  of  the  telegraph  company.  Planters' 
Cotton  Oil  Co.  V.  Western  U.  Teleg.  Co. 
6:  1180,  55  S.  E.  495,  126  Ga.  621. 

(Annotated) 

fc.  Conversation  through  interpreter. 

(See  same  heading  in  Digest  L.R.A.  1-70.) 


1182 


EVIDENCE,  X.  1. 


I.  Dying  declarations,  or  those  made  in 
travail. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Declarations  of  deceased  persons  generally, 
see  supra,  1374-1391. 

Prejudicial  error  as  to,  see  Appeal  and 
EUROR,   1121. 

Instruction  as  to  weight  of  dying  declara- 
tions, see  Appeal  and  Ebhor,  1389. 

Permitting  jury  to  take  dying  declarations 
to  jurvroom,  see  Appeial  and  Erbok, 
1477 ;  Trial,  15. 

Departure  from  rule  as  to  admissibility  in 
civil  cases,  see  Courts,  303. 

Admissibility  of,  as  against  general  objec- 
tion, see  Tblal,  83. 

Question  for  jury  as  to  whether  dying  dec- 
laration was  made,  under  belief  of  im- 
pending death,  see  Trial,  295. 

Instructions  as  to  weight  to  be  given  dying 
declarations,  see  Trial,  949. 

See  also  infra,  1657. 

1487.  A  statement  by  deceased  that  he  nev- 
er had  any  trouble  with  accused  before  is 
not  admissible  as  a  dying  declaration  in  a 
prosecution  for  homicide.  State  T.  Doris, 
i6:  66o,  94  Pac.  44,  51  Or.  136. 

1488.  An  expression  in  a  statement  offered 
in  evidence  as  a  dying  declaration,  "you 
killed  me  without  cause,"  is  not  an  expres- 
sion of  opinion  rather  than  of  fact,  so  as  to 
render  it  inadmissible,  if  it  appears  that  all 
the  facts  were  fully  known  to  declarant. 
House  V.  State,  21:  840,  48  So.  3,  94  Miss. 
107.  (Annotated) 

1489.  A  statement  by  one,  after  being  shot 
by  another,  that  he  had  no  gun  and  never 
carried  one,  is  not  admissible  in  evidence  as 
a  dying  declaration  in  a  prosecution  for 
homicide.  State  v.  Doris,  16:  660,  94  Pac. 
44,  51  Or.  136. 

1490.  Admissions  made  by  an  injured  per- 
son to  accused  after  he  had  made  a  state- 
ment tending  to  charge  accused  with  mur- 
der, which  had  been  introduced  in  evidence 
by  the  state  as  a  dying  declaration,  which 
admissions  tend  to  show  justification,  are 
admissible  as  dying  declarations,  and  are 
therefore  original  substantive  evidence,  and 
not  merely  as  evidence  tending  to  impeach 
the  declaration  admitted.  Tittle  v.  State, 
52:  gio,  66  So.  10.  —  Ala.  — . 

1491.  A  mere  affirmative  reply  by  one  un- 
der sense  of  imp.ending  death,  to  a  question 
whether  or  not  statements  mauj  by  him  to 
a  certain  person  named  on  a  specified  day 
are  true,  is  not  sufficient  to  identify  the 
statements  so  as  to  render  them  admissible 
as  dying  declarations,  although  on  the  day 
named  the  person  named  had  secured  a 
sworn  statement  from  the  one  making  the 
declaration.  State  v.  Peacock,  27:  702,  107 
Pac.  1022,  58  Wash.  41.  (Annotated) 
Ag;»inst  xirhom  admissible. 

1492.  Dying  declarations  are  limited  to 
criminal  prosecutions  when  the  subject-mat- 
ter of  the  investigation  is  the  declarant's 
Digest  1-52  I..B.A.(N.S.) 


death;  and  where  in  a  meUe  two  persons 
are  shot — one  killed  and  the  other  mortally 
wounded — the  dying  declarations  of  the  lat- 
ter are  not  admissible  in  evidence  against 
the  party  charged  with  killing  the  former. 
Johnson  y.  State,  40:  11 95,  58  So.  540,  63 
Fla.  16.  (Annotated) 

Competency     as     \iritness     of     person 
making. 

1493.  It  is  no  ground  for  excluding  a  dy- 
ing declaration  that  it  does  not  appear  that 
the  declarant  believed  in  God,  and  rewards 
and  punishment  after  death.  State  v.  Hood, 
15:  448,  59  S.  E.  971,  63  W.  Va.  182. 
Spontaneity  of. 

1494.  Dying  declarations  made  by  a  party 
who  was  shot  and  mortally  wounded  in  a 
meUe,  made  four  or  five  hours  after  the 
shooting,  and  after  the  party  had  seen  and 
spoken  to  several  persons,  cannot  be  said  to 
be  the  spontaneous  utterances  of  thoughts 
created  by  or  springing  out  of  the  transac- 
tion, and  therefore  cannot  be  considered  as 
a  part  of  the  res  gestae.  Johnson  v.  State, 
40:  1195,  58  So.  540,  63  Fla.   16. 

Form  of. 

1495.  A  statement  of  a  remark  by  one  shot 
by  another  just  prior  to  his  death,  signed 
by  a  bystander,  is  admissible  as  evidence  of 
an  oral  declaration  of  decedent,  but  cannot 
be  considered  as  part  of  a  signed  statement 
by  decedent,  although  appended  thereto. 
State  v.  Doris,  16:  660,  94  Pac.  44,  51  Or, 
136. 

1496.  When  both  a  written  statement  by  a 
decedent,  and  oral  evidence  cf  his  declara- 
tions, are  admitted  as  dying  declarations, 
the  oral  one  should  be  placed  on  the  same 
equality  with  the  written  by  refusing  to 
permit  the  latter  to  be  taken  into  the  jury 
box.  State  v.  Doris,  16:  660,  94  Pac.  44,  51 
Or.  136. 

1497.  The  admission  in  evidence,  as  a  dy- 
ing declaration,  of  a  written  statement  by 
decedent,  does  not  preclude  oral  evidence  of 
other  declarations  made  at  the  same  time 
and  under  the  sense  of  impending  death. 
State  V.  Doris,  16:  660,  94  Pac.  44,  51  Or. 
136. 

1498.  A  statement  is  not  rendered  inad- 
missible as  a  dying  declaration  by  the  fact 
that  it  was  obtained  by  question  and  an- 
swer, although  some  answers  consisted  mere- 
ly of  nods,  where  the  deceased  had  been 
enjoined  by  the  doctor  to  speak  as  little  as 
possible.  Rex  v.  Louie,  2  B.  R.  C.  912, 
10  B.  C.  1.  (Annotated) 

1499.  It  is  not  necessary  to  render  a 
statement  obtained  by  question  and  answer 
admissible  as  a  dying  declaration  that  it 
should  contain  the  questions  put  as  well  as 
the  answers  given.  Rex  v.  Louie,  2  B.  R.  C. 
912,  10  B.  C.  1. 

Senne  of  impending  death. 

1500.  Declarations  by  one  in  articulo 
mortis  who  believes  that  he  is  mortally 
wounded  are  admissible  in  evidence.  State 
V.  Dyer^  29:  459,  124  N.  W.  629,  147  Iowa, 
217. 

1501.  That  at  the  time  of  making  a  dec- 
laration declarant  stated  that  he  did  not 
expect  to  live  does  not  render  the  declara- 


EVIDENCE,  X.  m. 


1183 


tion  admissible  in  evidence  as  a  dying  dec- 
laration, if  all  his  other  conversations  and 
acts  tend  to  show  that  he  did  not  expect 
to  die.  Tibbs  v.  Com.  28:  665,  128  S.  W. 
871,  138  Ky.  558. 

1502.  An  expression  by  one  who  has  been 
shot  in  the  stomach  so  that  he  is  unable  to 
arise,  and  who  has  been  told  by  his  physi- 
cian that  he  has  but  a  few  hours  to  live,  in 
a  statement  offered  in  evidence  as  his  dying 
declaration,  "if  I  have  to  die,"  does  not 
raise  such  doubt  of  his  entire  conviction  of 
impending  dissolution  as  to  render  the 
statement  inadmissible,  where  in  the  same 
statement  he  declares  that  he  is  going  to 
die,  and  from  all  the  circumstances  it  is 
evident  that  he  was  fully  conscious  that  his 
end  was  at  hand.  House  v.  State,  21:840, 
48  So.  3,  94  Miss.  107. 

1503.  The  deduction  that  declarations 
were  made  under  a  cer  .e  of  impending 
death,  without  hope  of  recovery,  is  war- 
ranted where  the  person  making  them, 
after  great  shock  and  exposure,  declared 
that  he  did  not  believe  that  he  could  get 
well,  and  made  them  several  hours  later, 
having  been  sinking  all  the  time,  and  hav- 
ing reached  a  state  of  extreme  weakness. 
Gipe  v.  State,  1:  419,  75  N.  E.  881,  165  Ind. 
433.  (Annotated) 

1504.  Declarations  will  be  presumed  to 
have  been  made  under  a  sense  of  impending 
death  where  it  appears  that  the  person 
making  them  was  wounded  by  a  bullet 
which  entered  the  body  near  the  base  of 
the  breast  bone  and  ranged  downward,  leav- 
ing the  body  at  about  the  mid  scapular 
line,  posteriorly  just  above  the  brim  of  the 
pelvis,  that  the  wound  was  large  and  gap- 
ing, that  there  was  marked  internal  hem- 
orrhage, that  the  abdomen  was  greatly 
distended,  that  his  temperature  was  sub- 
normal, that  he  vomited  blood  and  all 
nourishment  given  him,  that  there  was  a 
discharge  of  the  intestinal  contents  at  the 
point  of  exit  of  the  bullet,  and  that  a  no- 
tary was  called  to  take  his  statement,  al- 
though there  was  but  little  external  bleed- 
ing, and  the  deceased  made  no  statement 
showing  that  he  knew  his  danger  or  was 
conscious  of  his  impending  death,  and  there 
was  nothing  in  his  conduct  or  that  of  those 
present,  acquiesced  in  by  him,  from  which 
such  consciousness  of  impending  death 
could  be  ascertained.  Territory  v.  Eagle, 
30:  391,  110  Pac.  862,  15  N.  M.  609. 

(Annotated) 

1505.  An  Indian  woman's  statement  that 
she  thinks  she  is  going  to  die  is  a  suffi- 
cient indication  of  such  settled  hopeless  ex- 
pectation of  immediate  death  as  to  render 
the  statement  admissible  as  a  dying  decla- 
ration, it  appearing  that  the  medical  atten- 
dant had  informed  her  that  she  was  dying, 
and  that  Indians  are  accustomed  to  use 
the  term  "think"  generally  as  a  statement 
of  fact.  Rex  v.  Louie,  2  B.  R.  C.  912,  10 
B.  C.  1. 

Impeachment  of. 

1506.  Evidence  that  deceased  did  not  be- 
lieve in  a  Supreme  Being,  offered  to  discredit 
his  dying  declaration,  is  not  rendered  inad- 
Dieest  1-52  Ii.R.A.(N.S.) 


missible  by  the  fact  ttat  it  relates  to  a 
time  a  year  before  his  death.  Gambrell  v. 
State,  17:  291,  46  So.  138,  92  Miss.  728. 

1507.  Evidence  of  inconsistent  statements 
made  by  one  after  receiving  a  mortal  wound 
is  admissible  to  impeach  his  dying  declara- 
tion in  a  prosecution  of  one  who  is  alleged 
to  have  inflicted  the  wound,  although  no 
foundation  has  been  laid  for  it.  Salas  v. 
People,  37:  252,  118  Pac.  992,  51  Colo.  461. 
In  civil  cases. 

1508.  The  dying  declaration  of  a  vendor  in 
a  land  contract  as  to  the  terms  of  the  con- 
tract is  admissible  in  an  action  by  his  ad- 
ministrator against  the  vendee  for  the  bal- 
ance of  the  purchase  price.  Thurston  v. 
Fritz,  50:  1167,  138  Pac.  625,  91   Kan.  468. 

(Annotated) 

1509.  The  dying  declaration  of  one  injured 
by  being  struck  by  a  railroad  train  is  not 
admissible  in  a  civil  action  to  recover  dam- 
ages therefor.  Bionto  v.  Illinois  C.  R.  Co. 
27:  1030,  51  So.  98,  125  La.  147. 

Made  in  travail. 

1510.  Declarations  of  the  mother  of  a 
child,  made  during  travail,  ad  to  its  pater- 
nity, are  admissible  in  support  of  her  testi- 
mony in  a  bastardy  proceeding.  Johnson  v. 
Walker,  i :  470,  39  So.  49,  86  Miss.  757. 

1511.  Testimony  of  a  living  witness  at  a 
former  trial  cannot  be  proved  at  a  subse- 
quent trial  of  the  same  case,  although  he  is 
too  ill  to  attend  court,  if  the  illness  existed 
at  the  beginning  of  the  trial,  so  that,  if  his 
evidence  was  material,  an  adjournment 
could  have  been  had  until  he  could  be  pres- 
ent. McCrorey  v.  Garrett,  24:  139,  64  S.  E. 
978,  109  Va.  645. 

m.  Former   testimony. 

(See  also   same  heading   in  Digest  L.R.A. 
1-10.) 

Documentary  evidence  of,  see  supra,   775- 

779. 
Testimony  at  coroner's  inquest,  see  supra, 

1220,  1221. 

1512.  The  properly  proved  testimony  of 
witnesses  who  have  left  the  state  after  .-i 
first  trial  may  be  given  in  evidence  on  a 
second  one.  Grant  v.  State,  42:  428,  148  S. 
W.  760,  —  Tex.  Crim.  Rep.  — . 

1513.  Where  a  witness  has  testified  in  a 
preliminary  trial,  and  has  been  cross- 
examined  by  the  defendant,  and  his  attend- 
ance cannot  be  obtained  upon  a  subsequent 
trial  of  said  cause,  it  is  not  error  for  the 
trial  court  to  permit  the  introduction  by  the 
state  of  the  testimony  given  by  said  witness 
upon  such  former  trial.  Edwards  v.  State, 
44:  701,  131  Pac.  956,  9  Okla.  Crim.  Rep. 
306.  (Annotated) 

1514.  The  admission,  in  favor  of  the  state 
upon  the  trial  of  one  accused  of  homicide, 
of  testimony  given  by  a  witness  upon  the 
former  trial  of  the  cause  upon  the  showing 
that  a  subpoena  had  been  issued  for  the  wit- 
ness to  testify  and  a  return  had  been  in- 
dorsed thereon  by  the  sheriff  of  the  county 
that  the  witness  could  not  be  found  in  the 


1186 


EVIDENCE,  XI.  c. 


thrown   from   a  platform  while   attempting 

*to   do  so,  as  bearing  upon  the  question  of 

his    negligence.      Auld   v.    Soutliern    R.    Co. 

•37:  518,  71   S.  E.  426.  13f)  Ga.  260. 

•f.      ]539.  In  an  action  for  the  death  of  a  brake- 

.jnan  due  to  the  giving  way  of  a  crosspiece 

naiUd  across  a  loaded  lumber  car,  evidence 

is   admissible   of  a  custom   on   the   part  of 

railroad  men  to  use,  such  crosspieces  to  as- 

•^sist  them  in  climbing  about  the  car  in  the 

performance  of  their  work,  for  the  purpose 

iof   showing  that  such  pieces  were  put    by 

<^the  employees  to  a  secondary  use,  for  which 

:,they  were  not  intended,  under  circumstances 

charging    the    company     with    notice,    and 

.thereby  placing  upon  it  a  responsibility  for 

their  safety.     Wallace  v.  Seaboard  Air  Line 

R.  Co.  13:  384,  54  S.  E.  399,  141  N.  C.  646. 

1540.  Exclusion,  in  an  action  for  death  of 
a  freight  conductor  being  run  over  by  train 
while  walking  along  a  track  to  check  his 
train,  of  evidence  that  his  act  was  accord- 
ing to  custom  in  railroad  yards  generally, 
is  not  error  where  he  was  negligent  in  be- 
coming so  absorbed  in  his  duties  as  to  fail 
to  observe  his  surroundings.  Neary  v. 
Northern  P.  R.  Co.  19:  446,  97  Pac.  944,  37 
Mont.  461. 

1541.  Upon  the  question  of  the  negligence 
and  contributory  negligence  of  hunters  one 
of  whom  shot  the  other  under  the  mistaken 
belief  that  he  was  an  animal,  while  he  vva.s 
moving  through  bushes  in  violation  of  an 
understanding  as  to  where  each  should  sta- 
tion liimself,  evidence  is  not  admissible  of 
the  custom  of  hunters  under  such  circum- 
stances,— at  least  where  the  custom  is  not 
shown  to  have  been  known  to  the  parties. 
Rudd  V.  Byrnes.  26:  134,  105  Pac.  957,  150 
Cal.   636. 

As  to  sobriety  or  drunkenness. 
Evidence    of    reputation    as    to,    see    infra, 
1549,   1559. 

1542.  In  an  action  to  hold  an  employer 
liable  for  ass-ault  in  removing  a  servant 
■from  liis  premises  after  termination  of  the 
relation,  evidence  is  not  admissible  that 
tl:e  servant  was  steady  and  did  not  drink, 
where  no  attempt  had  been  made  to  im- 
peach his  credibility  as  a  witness.  Noonan 
V.  Luther,  41:  761,  99  N.  E.  178,  206  N. 
Y.  105. 

1543.  Evidence  of  a  plea  of  guilty,  by  an 
applicant  tor  insurance,  to  a  charge  of 
drunkenness,  is  admissible  i;i  an  action  by 
an  assignee  of  the  \  neticiary  upon  the  pol- 
icy in  support  of  a  defense  of  misrepre.scn- 
tation  by  the  applicant  as  to  his  habits  in 
that  regard,  where  the  plea  was  not  so  re- 
mote from  the  time  of  the  application  as 
to  have  no  evidentiary  value.  Langdeau  v. 
John  Hancock  Mut.  L.  Ins.  Co.  18:  1190, 
80  N.  E.  452,  194  Mass.  56. 

As  to  mode  of  reckoning  time. 

1544.  In  determining  the  meaning  of  the 
word  "noon"  in  a  contract,  evidence  is  ad- 
misijihle  to  prove  the  prevailing  custom  as 
to  the  system  of  reckoning  time  in  the 
community  where  the  contract  was  made. 
Rochester  German  Ins.  Co.  v.  Peaslee-Gaul- 
bert  Co.  i:  364,  87  S.  W.  1115,  120  Ky.  752. 
Digest   1-52  L.R.A.(N.S.) 


c.  Character;  reputation;  age. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.J 

Opinion  evidence  as  to,  see  supra,  VII.   e. 

Hearsay  evidence  of,  see  supra,  1276-1278. 

Proof  of,  by  negative  evidence,  see  infra, 
1936. 

Evidence  as  to  bad  character  of  person  as- 
saulted, see  infra,  2002. 

Sufficiency  of  evidence  as  to,  to  sustain  con- 
viction of  keeping  disorderly  house,  see 
infra,  2411,  2412. 

Prejudicial  error  as  to,  see  Appeal  and 
Ebror,  1112,  1117. 

Evidence  of  character  in  mitigation  of  dam- 
ages, Bee  infra,  2014;  Damages,  714, 
721. 

1545.  Evidence  that  one  suing  a  hotel- 
keeper  for  injury  to  his  feelings  and  repu- 
tation by  refusal  to  serve  him  was  a  chron- 
ic fault-finder,  and  that  his  reputation  as  a 
guest  was  bad,  is  not  admissible.  Morn- 
ingstar  v.  Lafavette  Hotel  Co.  52:  740,  105 
N.  E.  656,  211  N.  Y.  465. 

1546.  Evidence  of  the  general  reputation  of 
a  person  for  financial  responsibility  is  rele- 
vant on  the  question  of  his  solvency.  Ellis 
v.  State,  20:  444,  119  N.  W.  1110,  138  Wis. 
513. 

1547.  Evidence  of  tiie  character  of  a  grant- 
or is  not  admissible  in  support  of  a  recital 
in  his  deed  that  he  had  received  a  convey 
ance  from  the  original  patentee  of  the  land: 
where  no  other  evidence  of  such  conveyance 
is  produced.  Quinalty  v.  Temple,  27:  1114, 
176  Fed.  67,  99  C.  C.  A.  375. 

1548.  Evidence  of  the  immoral  character  of 
the  mother  is  immaterial  in  an  action  by 
her  for  the  abduction  of  her" child.  Magnu- 
son  V.  O'Dea,  48:  327,  135  Pac.  «40,  76 
Wash.  674. 

1549.  Evidence  of  the  general  reputation 
for  drunkenness  of  a  physician  selected  by 
a  master  to  treat  his  employees,  in  the 
community  in  which  he  practises,  is  admis- 
sible as  tending  to  prove  that  the  master 
knew,  or  by  proper  diligence  should  have 
known,  of  it.  Guy  v.  Lanark  Fuel  Co.  48: 
536,  79  S.  E.  941,  72  W.  Va.  728. 

1550.  In  an  action  to  set  aside  a  compro- 
mise for  fraud,  proof  of  the  good  character 
of  the  one  accused  of  fraud  cannot  be  con- 
sidered as  substantive  evidence  against  its 
existence.  Wilson  Lumoer  &  Mill.  Co.  v.  At- 
kinson, 49:  733,  78  S.  E.  212,  162  N.  C.  298. 

(Annotated) 

Of  accnsed. 

Opinion  evidence  as  to,  see  supra,  VII.  e. 

Review  of  error  as  to,  see  Appeal  and 
Error,  837. 

Competency  of  witness  to  testify  to  general 
reputation  of  person,  see  Witnesses,  7, 
8. 

For  purpose  of  impeaching  as  witness,  see 
Witnesses,  115,  117-119,  121, 

Admissibility  to  impeach  accused  as  wit- 
ness, see  Witnesses,  151. 

1551.  One  accused  of  crime  cannot  testify 
in  defense  that  he  has  never  before  been  ac- 


EVIDENCE,  XL  c. 


1187 


>ciised  of,  or  arrested  for,  crime.  State  v. 
Marfaudille,  14:  346,  92  Pac.  939,  48  Wash. 
117. 

1552.  Evidence  of  the  general  reputation  of 
one  accused  of  crime  as  to  the  particular 
traits  involved  in  the  issue  is  admissible  in 
his  favor.  People  v.  Van  Gaasbeck,  22: 
650,  82  N.  E.  718,  189  N.  Y.  408. 

155.3.  Evidence  of  the  details  of  the  shots 
fired  by  one  accused  of  murder  is  not  ad- 
missible to  inif)cach  his  reputation  as  a 
peaceable  and  law-abiding  citi/en.  State 
V.  Beckner,  3:  535,  91  S.  W.  892,  194  Mo. 
281. 

1554.  A  person  on  trial  for  homicide  may 
shovir  that  prior  to  the  date  of  the  crime  al- 
leged his  character  as  a  quiet  and  peaceable 
citizen  was  good;  and  he  is  not  limited  to 
proving  what  people  may  have  said  concern- 
ing him  in  that  regard,  but  may  inquire  as 
to  his  character  from  those  acquainted  with 
him.  State  v.  Dickerson,  13:  341,  82  N.  E. 
969.  77  Ohio  St.  34. 

1555.  Upon  a  trial  of  a  chauffeur  for  homi- 
cide in  running  his  car  at  a  reckless  rate 
on  a  city  street,  and  striking  and  killing 
a  pedestrian,  evidence  is  not  admissible  as 
to  tlie  reputation  of  accused  as  a  skilful 
chauffeur  and  careful  driver.  State  v. 
Goetz,  30:  458,  76  All.   1000,  83  Conn.  437. 

1556.  That  a  witness  has  never  heard  the 
matter  discusseil  does  not  prevent  his  testi- 
fying to  the  general  reputation  of  an  ac- 
cused person  for  peace  or  violence  in  the 
community.  Sinclair  v.  State,  2:  553,  39  So. 
522,  87  Miss.  330.  (Annotated) 

1557.  Where  the  state  cross-examines  the 
witin'ss  of  accused  as  to  rumors  of  particu- 
lar instances  of  trouble  by  accused,  who 
tries  to  prove  his  good  character,  he  may 
show,  on  redirect  examination,  what  wit- 
ness had  heard  of  the  rumors,  and  the  gen- 
eral nature  of  the  trouble.  State  v.  Doris, 
16:  660,  94  Pac.  44,  51  Or.  136. 

Of  decea=ie^l  person. 

To  corroborate  witness,  see  Witnesses,  190. 

See  also  infra,  1655. 

1558.  In  an  action  on  a  benefit  certificate 
in  which  it  is  set  up  as  a  defense  that  the 
insured  was  killed  in  a  quarrel  in  which  he 
was  the  offending  party,  under  which  cir- 
cumstances the  defendant  would  not  be  lia- 
ble, evidence  of  his  general  reputation  for 
peace  and  quiet  is  incompetent.  Knights  of 
Maccabees  v.  Shields,  49:  853,  160  S.  W. 
1043.  156  Ky.  270. 

1559.  The  applicant's  reputation  "for  being 
an  intemperate  user  of  alcoholic  beverages" 
is  not  admissible  to  contradict  a  statement 
in  his  application  for  life  insurance  that, 
while  he  used  intoxicating  liquors,  he  did 
80  temperately;  for  it  is  not  offered  to  af- 
fect credibility,  but  in  denial  of  a  fact, 
pertinent  to  the  issue  raised,  and  not  diiTi- 
cult  to  prove,  if  true,  by  the  acts  of  tlie 
insured.  Smith  v.  Prudential  Ins.  Co.  (N. 
J.  Err.  &  App.)  43:  431,  85  Atl.  190,  83  N. 
J.  L.  719. 

—  Victim  of  homicide. 

1560.  One  accused  of  murder,  who  claims 
that  he  fired  the  fatal  stiot  in  self-defense, 
may  prove  that  the  deceased  was  a  person 
Digest  1-52  I..».A.(N.S.) 


of  violent  and  dangerous  character,  if  such  = 
character   was    known   to   him   at   the   time 
of   the   affray.     State   v.   Roderick,    14:  704,- 
82  N.  E.   1082,  77   Ohio  St.   301. 

1561.  Upon  a  trial  of  one  for  killing  a  per- 
son who  had  assaulted  him  immediately  be- 
fore the  striking  of  the  fatal  blow,  evidence 
is  admissible  that  deceased  was  known  by 
accused  to  be  a  violent,  passionate,  and  dan- 
<:rerous  man.  Com.  v.  Tircinski,  2:  102,  75 
N.  E.  261,  189  Mass.  257.  (Annotated) 

1562.  Upon  trial  of  a  man  for  killing  his 
brother-in-law  while  the  latter  was  attempt- 
ing to  force  an  entrance  of  his  home  in 
search  of  his  wife,  who  had  taken  refuge 
there,  evidence  is  admissible  that  the  gen- 
eral reputation  of  deceased  indicated  that  he 
was  quarrelsome  and  dangerous.  Bailey  v. 
People,  45:  145,  130  Pac.  832,  54  Colo.  337. 

1563.  Knowledge  on  the  part  of  one  on 
trial  for  homicide  that  decedent  was  a 
quarrelsome  and  dangerous  man  is  not 
necessary  to  admit  evidence  of  that  fact 
in  support  of  his  claim  that  he  shot  in  self- 
defense.  State  v.  Feeley,  3:  351,  92  S.  W, 
663,  194  Mo.  300.  (Annotated) 

1564.  The  limitation  by  one  accused  of 
homicide  of  evidence  of  the  quarrelsome 
character  of  deceased  to  times  when  he  was 
drinking,  as  he  was  at  the  time  of  his 
death,  does  not  preclude  evidence  on  the 
part  of  the  state  of  his  general  character 
for  peace,  "uiet,  and  good  citizenship.  State 
V.  Feeley,  3:  351,  92  S.  W.  663,  194  Mo.  300. 

1565.  In  a  trial  for  homicide,  where  it  is 
claimed  that  the  fatal  shot  was  fired  in 
self-defense,  the  defendant  cannot  be  per- 
mitted to  prove,  for  the  purpose  of  show- 
ing reasonable  ground  for  apprehension  of 
bodily  injury  or  loss  of  his  life,  particular 
instances  of  violence  or  viciousness  on  the 
part  of  the  deceased,  which  did  not  concerr* 
the  defendant  and  at  which  he  was  not 
present  and  of  which  he  has  no  personali 
knowledge;  but  he  may  show  that  the  de- 
ceased was  generally  reputed  to  be  a  mam 
of  violent  and  dangerous  character.  State' 
V.  Roderick,  14:  704,  82  N.  E.  1082,  77  Ohia 
St.   301.  (Annotated) 

1566.  Evidence  of  the  reputation  of  de- 
ceased for  peaceableness,  which  has  not 
been  attacked,  is  not  admissible  in  a  prose- 
cution for  homicide  merely  because  the  de- 
fendants rely  upon  self-defense,  and  their 
evidence  tends  to  prove  that  the  deceased 
was  the  a<2:gressor.  Kellv  v.  People,  12: 
1169,  82  K  E.   198,  229  HI.  81. 

1567.  An  attack  upon  the  reputation  of  de- 
ceased for  peaceableness  which  will  admit 
the  evidence  of  his  good  reputation  in  that 
respect  in  rebuttal  is  not  involved  in  the 
testimony  of  a  brother  of  deceased  to- 
the  effect  that  the  latter  was  a  strong  man> 
and  capable  of  caring  for  himself,  the  wit- 
ness having  answered  in  the  negative  a  ques- 
tion as  to  whether  deceased  had  not  acted' 
as  a  sparring  partner  for  a  pugilist.  Kelly 
V.  People,  12:  1169,  82  N.  E.  198,  229  111.81. 
Of  person  assaulted. 

1568.  In  a  prosecution  for  assault  and  bat- 
tery, evidence  of  the  good  character  or  repu- 
tation of  the  complaining  witness  is  inad- 


1186 


EVIDENCE,  XI.  c. 


thrown  from  a  platform  while  attempting 
to  do  so,  as  bearing  upon  the  question  of 
his  negligence.  Auld  v.  Southern  R.  Co. 
37:  518,  71  S.  E.  426.  13C)  Ga.  26G. 
:  1539.  In  an  action  for  the  death  of  a  brake- 
jnan  due  to  the  giving  way  of  a  crosspiece 
nailed  across  a  loaded  lumber  car,  evidence 
is  admissible  of  a  custom  on  the  part  of 
railroad  men  to  use,  such  crosspieces  to  as- 
sist them  in  climbing  about  the  car  in  the 
performance  of  their  work,  for  the  purpose 
of  showing  that  such  pieces  were  put  by 
the  employees  to  a  si'condary  use,  for  which 
they  were  not  intended,  under  circumstances 
charging  the  company  with  notice,  and 
thereby  placing  upon  it  a  responsibility  for 
their  safety.  Wallace  v.  Seaboard  Air  Line 
R.  Co.  13:  384,  54  S.  E.  399,  141  N.  C.  646. 

1540.  Exclusion,  in  an  action  for  death  of 
a  freight  conductor  being  run  over  by  train 
while  walking  along  a  track  to  check  his 
train,  of  evidence  that  his  act  was  accord- 
ing to  custom  in  railroad  yards  generally, 
is  not  error  where  he  was  negligent  in  be- 
coming BO  absorbed  in  his  duties  as  to  fail 
to  observe  his  surroundings.  Neary  v. 
Northern  P.  R.  Co.  19:  446,  97  Pac.  944,  37 
Mont.  461. 

1541.  Upon  the  question  of  the  negligence 
and  contributory  negligence  of  hunters  one 
of  whom  shot  the  other  under  the  mistaken 
belief  that  he  was  an  animal,  while  he  was 
moving  through  bushes  in  violation  of  an 
uiulerstanding  as  to  where  each  should  sta- 
tion himself,  evidence  is  not  admissible  of 
the  cui'tDm  of  hunters  under  such  circum- 
stances,— at  least  where  the  custom  is  not 
siiown  to  have  been  known  to  the  parties. 
Rudd  V.  Byrnes,  26:  134,  105  Pac.  957,  156 
Cal.   636. 

As  to  sobriety  or  drunkenness. 
Evidence    of    reputation    as    to,    see    infra, 
1549,   1559. 

1542.  In  an  action  to  hold  an  employer 
liable  for  ast^ault  in  removing  a  servant 
from  liis  premises  after  termination  of  the 
relation,  evidence  is  not  admissible  that 
t':e  servant  was  steady  and  did  not  drink, 
wliere  no  attempt  had  been  made  to  im- 
peach his  credibility  as  a  witness.  Noonan 
V.  Luther,  41:761,  99  N.  E.  178,  206  N. 
Y.  105. 

1543.  Evidence  of  a  plea  of  guilty,  by  an 
applicant  for  insurance,  to  a  charge  of 
drunkenness,  is  admissible  i:i  an  action  by 
an  a.ssig«ee  of  the  \  neticiary  upon  the  pol- 
icy in  support  of  a  defense  of  misrepresen- 
tation by  the  applicant  as  to  his  habits  in 
that  regard,  where  the  plea  was  not  so  re- 
mote from  the  time  of  the  application  as 
to  have  no  evidentiary  value.  Langdeau  v. 
John  Hancock  Mut.  L.  Ins.  Co.  18:  1190, 
80  N.  E.  452,  194  Mass.  56. 

As  to  mod*  of  reckoning  time. 

1544.  In  determining  the  meaning  of  the 
word  "noon"  in  a  contract,  evidence  is  ad- 
mispihle  to  prove  the  prevailing  custom  as 
to  the  system  of  reckoning  time  in  the 
community  where  the  contract  was  made. 
Rochester  German  Ins.  Co.  v.  Peasloe-Gaul- 
bert  Co.  i:  364,  87  S.  W.  1115,  120  Ky.  752. 
Digest   1-52  Ii.R.A.(]V.S.) 


c.  Character;  reputation;  age. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Opinion  evidence  as  to,  see  supra,  VII.  e. 

Hearsay  evidence  of,  see  supra,  1276-1278. 

Proof  of,  by  negative  evidence,  see  infra, 
1936. 

Evidence  as  to  bad  character  of  person  as- 
saulted, see  infra,  2002. 

Sufficiency  of  evidence  as  to,  to  sustain  con- 
viction of  keeping  disorderly  house,  see 
infra,  2411,  2412. 

Prejudicial  error  as  to,  see  Appeal  and 
Error,  1112,  1117. 

Evidence  of  character  in  mitigation  of  dam- 
ages, see  infra,  2014;  Damages,  714, 
721. 

1545.  Evidence  that  one  suing  a  hotel- 
keeper  for  injury  to  his  feelings  and  repu- 
tation by  refusal  to  serve  him  was  a  chron- 
ic fault-finder,  and  that  his  reputation  as  a 
guest  was  bad,  is  not  admissible.  Morn- 
ingstar  v.  Lafavette  Hotel  Co.  52:  740,  105 
N.  E.  656,  211  N.  Y.  465. 

1546.  Evidence  of  the  general  reputation  of 
a  person  for  financial  responsibility  is  rele- 
vant on  the  question  of  his  solvency.  Ellis 
v.  State,  20:  444,  119  N.  W.  1110,  138  Wis. 
513. 

1547.  Evidence  of  the  character  of  a  grant- 
or is  not  admissible  in  support  of  a  recita) 
in  his  deed  that  he  had  received  a  convey 
ance  from  the  original  patei.tee  of  the  land; 
where  no  other  evidence  of  such  conveyance 
is  produced.  Quinalty  v.  Temple,  27:  11 14, 
176  Fed.  67,  99  C.  C.  A.  375. 

1548.  Evidence  of  the  immoral  character  of 
the  mother  is  immaterial  in  an  action  by 
her  for  the  abduction  of  her  "child,  Magnu- 
son  v.  O'Dea,  48:  327,  135  Pac.  «40,  76 
Wash,  574. 

1549.  Evidence  of  the  general  reputation 
for  drunkenness  of  a  physician  selected  by 
a  master  to  treat  his  employees,  in  the 
community  in  which  he  practises,  is  admis- 
sible as  tending  to  prove  that  the  master 
knew,  or  by  proper  diligence  should  have 
known,  of  it.  Guy  v,  Lanark  Fuel  Co.  48: 
536,  79  S.  E.  941,  72  W.  Va.  728. 

1550.  In  an  action  to  set  aside  a  compro- 
mise for  fraud,  proof  of  the  good  character 
of  the  one  accused  of  fraud  cannot  be  con- 
sidered as  substantive  evidence  against  its 
existence.  Wilson  Lumoer  &  Mill.  Co.  v.  At- 
kinson, 49:  733,  78  S.  E.  212,  162  N.  C.  298. 

( Annotated ) 

Of  accused. 

Opinion  evidence  as  to,  see  supra,  VII.  e. 

Review  of  error  as  to,  see  Appeal  and 
Error,  837. 

Compcttmcy  of  witness  to  testify  to  general 
reputation  of  person,  see  Witnessb:s,  7, 
8. 

For  purpose  of  impeaching  as  witness,  see 
Witnesses,  115,  117-119,  121. 

Admissibility  to  impeach  accused  as  wit- 
ness, see  Witnesses,  151. 

1551.  One  accused  of  crime  cannot  testify 
in  defense  that  he  bus  never  before  been  ac- 


EVIDENCE,  XL  c. 


1187 


vused  of,  or  arrested  for,  crime.  State  v. 
Marfaudille,  14:  346,  92  Pac.  939,  48  Wash. 
117. 

1552.  Evidence  of  the  general  reputation  of 
one  accused  of  crime  as  to  the  particular 
traits  involved  in  the  issue  is  admissible  in 
his  favor.  People  v.  Van  Gaasbeck,  22: 
650,  82  N.  E.  718,  189  N.  Y.  408. 

1553.  Evidence  of  the  details  of  the  shots 
fired  by  one  accused  of  murder  is  not  ad- 
missible to  iiuj)oach  his  reputation  as  a 
peaceable  and  law-abiding  citizen.  State 
V.  Beckner,  3:  535,  91  S.  W.  892,  194  Mo. 
281. 

1554.  A  person  on  trial  for  homicide  may 
show  that  prior  to  the  date  of  the  crime  al- 
leged his  character  as  a  quiet  and  peaceable 
citi/en  was  good;  and  he  is  not  limited  to 
proving  what  people  may  have  said  concern- 
ing him  in  that  regard,  but  may  inquire  as 
to  his  character  from  those  acquainted  with 
him.  State  v.  Dickerson,  13:  341,  82  N.  E. 
9G9.  77  Ohio  St.  34. 

1555.  Upon  a  trial  of  a  chauflfeur  for  homi- 
cide in  running  his  car  at  a  reckless  rate 
on  a  city  street,  and  striking  and  killing 
a  pedestrian,  evidence  is  not  admissible  as 
to  tlie  reputation  of  accused  as  a  skilful 
chauffeur  and  careful  driver.  State  v. 
Goetz,  30:  458,  76  All.   1000,  83  Conn.  437. 

1556.  Tliat  a  witness  has  never  heard  the 
matter  discussed  does  not  pievent  his  testi- 
fying to  the  general  reputation  of  an  ac- 
cused person  for  |)eace  or  violence  in  the 
community.  Sinclair  v.  State,  2:  553,  39  So. 
522,  87  Miss.  330.  (Annotated) 

1557.  Where  the  state  cross-examines  the 
witness  of  accused  as  to  rumors  of  particu- 
lar instances  of  trouble  by  accused,  who 
tries  to  prove  his  good  character,  he  may 
show,  on  redirect  examination,  what  wit- 
ness had  heard  of  the  rumors,  and  the  gen- 
eral nature  of  the  trouble.  State  v.  Doris, 
16:  660,  94  Pac.  44,  51  Or.  136. 

Of  decease?!  person. 

To  corroborate  witness,  see  Witnesses,  190. 

See  also  infra,  1655. 

1558.  In  an  action  on  a  benefit  certificate 
in  which  it  is  set  up  as  a  defense  that  the 
insured  was  killed  in  a  quarrel  in  which  he 
was  the  offending  party,  under  which  cir- 
cumstances the  defendant  would  not  be  lia- 
ble, evidence  of  his  general  reputation  for 
peace  and  quiet  is  incompetent.  Knights  of 
Maccabees  v.  Shields,  49:  853,  160  S.  W. 
1043.  156  Ky.  270. 

1559.  The  applicant's  reputation  "for  being 
an  intemperate  user  of  alcoholic  beverages" 
is  not  admissible  to  contradict  a  statement 
in  his  application  for  life  insurance  that, 
while  he  used  intoxicating  liquors,  he  did 
80  temperately;  for  it  is  not  offered  to  af- 
fect credibility,  but  in  denial  of  a  fact, 
pertinent  to  the  issue  raised,  and  not  diffi- 
cult to  prove,  if  true,  by  the  acts  of  tlie 
insured.  Smith  v.  Prudential  Ins.  Co.  (N. 
J.  Err.  &  App.)  43:  431,  85  Atl.  190,  83  N. 
J.  L.  719. 

—  Victim  of  homicide. 

1560.  One  accused  of  murder,  who  claims 
that  he  fired  the  fatal  shot  in  self-defense, 
may  prove  that  the  deceased  was  a  person 
Digest  1-52  L.R.A.(N.S.) 


of  violent  and  dangefOlis  character,  if  such- 
character   was    known   to   him   at   the   time 
of   the   affray.     State   v.   Roderick,    14:  704,- 
82  N.   E.   1082,  77  Ohio  St.   301. 

1561.  Upon  a  trial  of  one  for  killing  a  per- 
son who  had  assaulted  him  immediately  be- 
fore the  striking  of  the  fatal  blow,  evidence 
is  admissible  that  deceased  was  known  by 
accused  to  be  a  violent,  passionate,  and  dan- 
crerous  man.  Com.  v.  Tircinski,  2:  102,  75 
N.  E.  261,  189  Mass.  257.  (Annotated) 

1562.  Upon  trial  of  a  man  for  killing  his 
brother-in-law  while  the  latter  was  attempt- 
ing to  force  an  entrance  of  his  home  in 
search  of  his  wife,  who  had  taken  refuge 
there,  evidence  is  admissible  that  the  gen- 
eral reputation  of  deceased  indicated  that  he 
was  quarrelsome  and  dangerous.  Bailey  v. 
People,  45:  145,  130  Pac.  832,  54  Colo.  337. 

1563.  Knowledge  on  the  part  of  one  on 
trial  for  homicide  that  decedent  was  a 
quarrelsome  and  dangerous  man  is  not 
necessary  to  admit  evidence  of  that  fact 
in  support  of  his  claim  that  he  shot  in  self- 
defense.  State  V.  Feeley,  3:  351,  92  S.  W, 
663,  194  Mo.  300.  (Annotated) 

1564.  The  limitation  by  one  accused  of 
homicide  of  evidence  of  the  quarrelsome 
character  of  deceased  to  times  when  he  was 
drinking,  as  he  was  at  the  time  of  his 
death,  does  not  preclude  evidence  on  the 
part  of  the  state  of  his  general  character 
for  peace,  "uiet,  and  good  citizenship.  State 
v.  Feeley,  3:  351,  92  S.  W.  663,  194  Mo.  300. 

1565.  In  a  trial  for  homicide,  where  it  is 
claimed  that  the  fatal  shot  was  fired  in 
self-defense,  the  defendant  cannot  be  per- 
mitted to  prove,  for  the  purpose  of  show- 
ing reasonable  ground  for  apprehension  of 
bodily  injury  or  loss  of  his  life,  particular 
instances  of  violence  or  viciousness  on  the 
part  of  the  deceased,  which  did  not  concerni 
the  defendant  and  at  which  he  was  not 
present  and  of  which  he  has  no  personal! 
knowledge;  but  he  may  show  that  the  de- 
ceased was  generally  reputed  to  be  a  mam 
of  violent  and  dangerous  character.  State' 
V.  Roderick,  14:  704,  82  N.  E.  1082,  77  Ohio 
St.   301.  (Annotated) 

1566.  Evidence  of  the  reputation  of  de- 
ceased for  peaceableness,  which  has  not 
been  attacked,  is  not  admissible  in  a  prose- 
cution for  homicide  merely  because  the  de- 
fendants rely  upon  self-defense,  and  their 
evidence  tends  to  prove  that  the  deceased 
was  the  airgressor.  Kellv  v.  People,  12: 
1169,  82  N.'  E.  198,  229  111.  81. 

1567.  An  attack  upon  the  reputation  of  de- 
ceased for  peaceableness  which  will  admit 
the  evidence  of  his  good  reputation  in  that 
respect  in  rebuttal  is  not  involved  in  the 
testimony  of  a  brother  of  deceased  to 
the  effect  that  the  latter  was  a  strong  mani 
and  capable  of  caring  for  himself,  the  wit- 
ness having  answered  in  the  negative  a  ques- 
tion as  to  whether  deceased  had  not  acted' 
as  a  sparring  partner  for  a  pugilist.  Kelly 
V.  People,  12:  1169,  82  N.  E.  198,  229  111.81. 
Of  person  assaulted. 

1568.  In  a  prosecution  for  assault  and  bat- 
tery, evidence  of  the  good  character  or  repu- 
tation of  the  complaining  witness  is  inad- 


1]S8 


EVIDENCE,  XI.  c. 


missible  where  the  defendant  has  made  no 
attack  upon  such  reputation.  State  v.  Ma- 
gill,  22:666,   122  N.  W.  330,   19  N.  D.   131. 

1569.  Upon  the  question  of  the  amount  of 
force  whicli  one  accused  of  assault  and  bat- 
tery thought  necessary  for  his  own  defense, 
evidence  is  admissible  that  he  had  been  cau- 
tioned by  his  parents  as  to  his  conduct  to- 
ward the  person  assaulted  because  of  such 
person's  dangerous  character.  McQuiggan 
V.  Ladd,  14:  689,  64  Atl.  503,  79  Vt.  90. 

1570.  To  show  that  one  upon  whom  an  as- 
sault was  committed  in  alleged  self-defense 

>  was  in  fact  a  dangerous  man  when  intoxi- 
cated, evidence  is  admissible  of  his  acts  on 
specified  occasions  when  so  into.xicated.  Mc- 
Quiggan V.  Ladd,  14:  689,  64  Atl.  503,  79  Vt. 
90.  (Annotated) 

1571.  To  render  admissible  evidence  of  spe- 
cific instances  to  show  the  dangerous  char- 
acter of  one  upon  whom  an  assault  is  al- 
leged to  have  been  committed  in  self-de- 
fense, defendant  need  not  be  shown  to  have 
known  of  all  their  details  if  he  knew  that 
such  character  existed.  McQuiggan  v.  Ladd, 
14:  689,  64  Atl.  503,  79  Vt.  90.   (Annotated) 

1572.  Evidence  that  a  boy  injured  by 
another's  negligence  was  obedient  and 
economical  is  admissible  upon  the  question 
of  damages,  in  an  action  by  him  to  recover 
for  the  injuries.  Cameron  Mill  &  Elevator 
Co.  V,  Anderson,  i:  198,  81  S.  W.  282,  98 
Tex.  156.  (Annotated) 
Of  witneas. 

Prejudicial    error    as    to,    see    Appeal   axd 

Ebroe,  1117. 
To    impeach   witness,   see   Witnesses,    99- 

101,  105-109,  151-164. 

1573.  Evidence  is  admissible  to  prove  the 
good  character  of  a  witness  in  a  civil  ac- 
tion, where  an  effort  was  made  to  impeach 
him  on  cross-examination.  Minton  v.  La 
Follette  Coal,  L  &  R.  Co.  11:  478,  101  S.  W. 
178,   117   Tenn.  415. 

Chastity. 

Opinion  evidence  as  to,  see  supra,  1116. 

Evidence    as    to,    to    impeach    witness,    see 

Witnesse:s,  153,  L55. 
See  also  infra,  1655. 

1574.  Upon  the  question  of  the  existence 
vel  non  of  a  common-law  marriage  between 
a  decedent  and  a  woman  claiming  his  prop- 
erty, evidence  is  admissible  of  the  character 
of  the  community  in  which  she  lived  and 
her  own  character  for  virtue,  to  interpret 
the  association  of  decedent  with  her.  Berg- 
er  V.  Kirby,  51:  182,  153  S.  W.  1130,  105 
Tex.  611. 

1575.  Evidence  of  the  good  character  of  the 
wife  is  inadmissible  in  a  prosecution  of  her 
husband  for  murder  of  her  alleged  para- 
mour, to  show  that  she  was  not  guilty  of 
conduct  which  accused  assigned  as  a  reason 
for  his  crime.  Shipp  v.  Com.  10:  335, 
99  S.  W.  945,  124  Ky.  643.  (Annotated) 

1576.  The  state  cannot,  on  a  trial  for  in- 
cest, introduce  evidence  of  good  behavior 
of  prosecutrix  at  the  time  the  child  must 
have  been  conceived,  the  evidence  of  the 
birth  of  which  introduced  against  accused 
Digest   1-52  L.R.A.(N.S.) 


he   is   attempting   to   overcome   by   showing 

criminal   intimacy  between  prosecutrix  and 

another   at  sucli   time.     Skidmore  v.  State, 

26:  466,  123  S.  W.  1129,  57  Tex.  Crim.  Rep. 

497. 

Carelessness. 

Custom   or   habit   as   to,   see   supra,    1527- 

1541. 
See  also  supra,  1555. 

1577.  The  general  reputation  of  an  em- 
ployee among  those  acquainted  with  him 
or  his  work  is  competent,  after  proof  of  liis 
incompetence  has  been  introduced,  to  sliow 
notice  to  the  master  of  his  habit  of  incom- 
petency; but  reputation  among  a  particu- 
lar class,  which  obviously  includes  only  a 
part  of  those  who  know  his  character  or 
work,  is  inadmissible  for  such  purpose. 
Southern  P.  Co.  v.  Hetzer,  i:  288,  135  Fed. 
272,  68  C.  C.  A.  26. 

1578.  Specific  acts  of  negligence,  lack  of 
skill,  or  incompetence,  of  which  the  master 
had  no  notice,  are  inadmissible  to  prove 
the  incompetence  of  a  servant  employed 
with  due  care;  but  the  proper  proof  of 
habit  and  character  in  such  a  case  is  the 
testimony  of  witnesses  qualified  to  speak 
of  them,  subject  to  proper  cross-examina- 
tion in  relation  to  the  facts  upon  which 
their  testimony  is  based.  Southern  P.  Co. 
V.  Hetzer,  i:  288,  135  Fed.  272,  68  C.  C.  A, 
26. 

1579.  In  an  action  against  a  man  for  in- 
jury done  by  his  horse  while  being  ridden 
by  his  son  at  his  direction,  evidence  is  ad- 
missible as  to  the  son's  reputation  for  reck- 
less and  careless  driving,  and  as  to  specific 
instances  thereof,  to  charge  defendant  with 
knowledge  of  the  son's  incompetency  to  be 
intrusted  with  the  management  of  the  horse. 
Broadstreet  v.  Hall,  10:  933,  80  N.  E.  145, 
168  Ind.  192. 

1580.  In  an  action  to  hold  one  who  has  con- 
tracted to  place  the  superstructures  of  a 
bridge  on  concrete  piers  to  be  erected  by 
another,  liable  for  injury  to  his  employees 
because  they  were  permitted  to  begin  the 
work  before  the  piers  were  sufficiently  hard, 
evidence  is  not  admissible  as  to  the  gen- 
eral reputation  of  the  engineer  in  charge  of 
the  whole  work,  to  whom  defendant  intrust- 
ed the  duty  of  determining  whether  or  not 
the  piers  were  sufficiently  hard,  since,  if  it 
delegates  that  duty  to  the  engineer,  it  is 
responsible  for  his  negligence  regardless  of 
his  reputation.  Pennsylvania  Steel  Co.  v. 
Nace,  45:  281,  77  AtL  1121,  113  Md.  460. 
Age. 

Sufficiency  of  evidence,  see  infra,  2236,  2237. 

1581.  That  one  to  whom  a  mutual  benefit 
certificate  was  issued  gave  a  different  date 
of  birth  in  a  prior  application  for  life  in- 
surance in  another  company  from  that  given 
in  the  application  for  the  mutual  benefit 
certificate  is  competent  evidence  tending  to 
establish  the  true  date  of  his  birth,  and  ad- 
missible in  an  action  brought  by  the  bene- 
ficiary to  recover  upon  the  certificate.  Tay- 
lor v.  Grand  Lodge  A.  0.  U.  W.  11:  92,  111 
N.  W.  919,  101  Minn.  72.  ^ 


I 


EVIDENCE,  XI.  d. 


1180 


d.  Knowledge;    notice;    "belief;    mental 
capacity. 

(Bee   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Knowledge;  notice. 

Sufficiency  of  evidence,  see  infra,  2179,  2218, 

2219. 
See  also  infra,  1858,  1859,  1884,  19] 3. 

1582.  Upon  the*  question  of  notice  to  a 
debtor  of  an  assignment  of  a  claim  against 
him,  evidence  is  not  admissible  of  notice  to 
his  brother.  Gunby  v.  Ingram,  36:  232,  106 
Pac.  495,  57  Wash.  97. 

1583.  Upon  the  question  of  the  knowledge 
of  the  conductor  of  a  railway  train,  of  the 
physical  condition  of  a  passenger,  and 
whether  he  failed  in  his  duty  toward  a 
sick  passenger,  as  affecting  the  question  of 
liability  of  the  railroad  company  and  the 
extent  of  the  recovery,  if  any,  it  was  ad- 
missible for  him  to  testify  that  the  pas- 
senger complained  of  being  sick,  but  did 
not  state  the  nature  of  such  sickness,  and 
that  he  "supposed  it  was  train  sickness.'' 
Central  of  Georgia  R.  Co.  v.  Madden,  31: 
813,  69  S.  E.   165,  135  Ga.  205. 

1584.  In  a  suit  upon  a  note  executed  in 
the  name  of  a  dissolved  partnership  by  one 
of  the  former  partners,  against  his  copart- 
ner, evidence  is  admissible  that  the  money 
for  which  the  note  of  which  that  in  suit  is 
a  renewal  was  borrowed  with  the  knowledge 
of  defendant,  and  credited  to  the  account  of 
the  firm  on  the  books  of  the  corporation, 
which  was  organized  to  take  over  the  part- 
nership business.  Seufert  v.  Gille.  31:  471, 
131  S.  W.  102,  230  Mo.  453. 

—  In  action  for  personal  injuries. 

1585.  Evidence  of  knowledge  by  village 
trustees  that  a  broken  telephone  wire  is  live 
is  not  admissible  to  show  their  knowledge, 
when  an  injury  is  caused  by  the  same  line  of 
wire  a  quarter  of  a  mile  distant  from  such 
break,  eight  or  ten  months  later,  of  the  fact 
that  the  wire  must  be  in  contact  at  some 
point  with  a  dangerous  current,  which  con- 
dition should  be  corrected.  Fox  v.  Man- 
chester, 2:  474,  75  N.  E.  1116,  183  N.  Y.  141. 

1586.  Upon  the  question  of  the  negligence 
of  a  city  in  maintaining  an  unsafe  sidewalk, 
evidence  is  competent  that  the  street  com- 
missioner and  one  member  of  the  city  coun- 
cil had  actual  notice  of  its  condition.  Woods 
V.  Lisbon,  16:  886,  116  N.  W.  143,  138  Iowa, 
402. 

1587.  One  injured  by  the  movement  of  a 
standing  freight  train  -while  he  is  attempt- 
ing to  cross  it  upon  invitation  of  the 
brakeman  cannot  be  permitted  to  testify 
as  to  whether  or  not  the  invitation  was 
given  loud  enough  for  the  engineer  in  charge 
of  the  train  to  hear  it,  in  the  absence  of 
anything  to  show  where  the  engineer  was 
at  the  time.  Westbrook  v.  Kansas  City,  M. 
&  B.  R.  Co.  34:  469,  54  So.  231,  170  Ala.  574. 

1588.  Evidence  that  a  father  told  the  mine 
boss,  who  was  also  the  employing  agent  of 
a  coal  mine  operator,  to  keep  his  son,  who 
was  employed  about  the  mine,  out  of  it,  is 
admissible  in  an  action  by  such  son  to  re- 
Digest   1-52  L.R.A.(N.S.) 


cover  damages  for  personal  injuries  sus- 
tained while  working  in  the  mine  at  the  di- 
rection of  the  boss,  for  the  purpose  of  show- 
ing that  the  defendant  was  put  on  inquiry 
as  to  the  boy's  capacity  to  perform  the  work 
inside  the  mine,  since  such  evidence  tends 
to  show  that  the  father  thought  such  work 
dangerous  for  one  of  his  son's  capacity. 
Ewing  v.  Lanark  Fuel  Co.  29:  487,  65  S.  E. 
200,  65  W.  Va.  726. 

1589.  Evidence  of  a  conversation  between 
a  person  injured  while  alighting  from  an 
electric  car,  and  officers  of  the  railway  com- 
pany, bearing  upon  the  question  of  the  neg- 
ligence of  the  motorman,  is  admissible  to 
show  knowledge  of  his  incompetence,  in  an 
action  by  a  coemployee  to  hold  the  company 
liable  for  injuries  due  to  his  disobedience  of 
orders.  Robbins  v.  Lewiston,  A.  &  W. 
Street  R.  Co.  30:  109,  77  Atl.  537,  107  Me. 
42. 

1590.  Evidence  of  specific  acts  of  negli- 
gence on  the  part  of  an  employee,  tending 
to  show  his  incompetence,  by  which  the 
master  had  actual  knowledge,  or,  by  the  ex- 
ercise of  due  care,  should  have  had  such 
knowledge,  is  admissible  on  the  question  of 
incompetence  and  knowledge,  in  an  action 
to  hold  the  master  liable  for  injury  to  an 
employee  through  a  negligent  act  of  the 
one  alleged  to  be  incompetent.  Robbins 
V.  Lewiston,  A.  &  W.  Street  R,  Co.  30:  109, 
77  Atl.  537,  107  Me.  42. 

1591.  Upon  the  question  whether  or  not  an 
employee  injured  by  the  use  of  a  defective 
cant  hook  ought  to  have  known  of  its  defec- 
tive condition,  evidence  should  be  consid- 
ered as  to  the  use  he  had  made  of  it  and 
his  familiarity  with  such  tools.  Parker  v. 
W.  C.  Wood  Lumber  Co.  40:  832,  54  So.  252, 
98  Miss.  750. 

—  In  criminal  cases. 

1592.  As  bearing  upon  the  question  of  one's 
guilt  for  violation  of  a  statute,  evidence  is 
admissible  relating  to  his  knowledge  of  the 
pendency  of  the  bill,  which  ripened  into  the 
statute.  State  v.  Ross.  42:  601,  104  Pac. 
596,   106  Pac.   1022,  55  Or.  450. 

1593.  Upon  trial  of  one  for  murder  of  a 
boarder  at  a  hotel,  evidence  that  accused 
knew  that  the  proprietor  had  a  certain  sum 
of  money  in  his  possession  is  admissible, 
where  it  also  appears  that  accused  had 
formed  a  purpose  to  secure  possession  of  the 
hotel,  and  put  the  keeper  out  of  the  way, 
to  the  accomplishment  of  which  decedent 
stood  in  the  way.  Com.  v.  Snell,  3:  1019, 
75  N.  E.  75,  189  Mass.  12. 

Belief. 

See  infra,  2002.  • 

Mental  capacity. 

Opinion  evidence,   see  supra,  VII.  e. 

Sufficiency  of  evidence,  see  infra,  2220-2225. 

Right  to  show  insanity  of  accused  in  pro- 
ceedings for  extradition,  see  Extradi- 
tion, 4. 

1594.  Testimony  of  one  alleged  to  have 
conveyed  real  estate  while  ill,  that  he  did 
not  learn  of  the  conveyance  until  a  short 
time  before  beginning  action  to  set  aside 
the  deed,  is  material  on  the  question  of  his 
mental  incapacity  to  execute  the  deed.     At- 


1190 


EVIDENCE,  XI.  e. 


wood  V.  Atwood,  37:  591,  79  Atl.  59,  84  Conn. 
169. 

—  Of  testator. 

Evidence  of  testator  to  show  lack  of,  aee 

supra,  1444. 
Declarations  of  colegatee  to  show,  see  su- 
pra, 1458. 
1595  Upon  the  trial  of  an  issue  as  to  the 
testamentary  capacity  of  the  maker  of  a 
will,  where  it  appears  that  a  certain  woman 
had  been  asked  by  the  testator  to  write  his 
will,  and  that  she  had  refused,  it  is  compe- 
tent to  show,  as  explanatory  of  his  acts,  that 
she  had  drawn  several  wills,  if  that  fact  had 
been  communicated  to  him.  Slaughter  v. 
Heath,  27:  i,  57  S.  E.  69,  127  Ga.  747. 

1596.  Where  a  testator  bequeathed  but  a 
nominal  sum  to  a  daughter,  and  in  the  will 
assigned  as  a  reason  therefor  that  her  hus- 
band had  not  treated  him  justly,  evidence 
that  the  son-in-law  withheld  money  from 
him,  to  his  knowledge,  whether  rightfully  or 
wrongfully,  and  that  he  asked  such  son-in- 
law  for  a  bond  to  which  he  claimed  title, 
and  that,  the  son-in-law,  with  an  oath,  re- 
plied that  he  would  give  it  to  the  testator 
when  he  pleased,  is  admissible  upon  the  trial 
of  an  issue  formed  by  a  caveat  to  the  pro- 
pounding of  the  will,  as  explanatory  of  the 
reason  assigned.  Slaughter  v.  Heath,  27:  i, 
57  S.  E.  69,  127  Ga.  747. 

1597.  Whether  or  not  testator's  recognition 
of  a  witness  on  the  day  his  will  was  execut- 
ed was  the  same  as  his  recognition  when  in 
good  health  is  immaterial  upon  the  question 
of  testamentary  capacity.  Speer  v.  Speer, 
27:  294,  123  N.  W.  176,  146  Iowa,  6. 

1598.  Testimony  as  to  the  condition  cf  one 
suiTering  from  a  progressive  illness  on  the 
days  preceding  or  following  th^t  on  which 
he  executed  a  will  is  not  admissible  on  the 
question  of  his  testamentary  capacity  on 
the  day  the  will  was  executed.  Speer  v. 
Speer,  27:  294,  123  N.  W.  176,  146  Iowa,  6. 

1599.  Where  a  testator  bequeathed  but  a 
nominal  sum  to  a  daughter,  and  in  the  will 
assigned  as  a  reason  therefor  that  Ler  hus- 
band had  not  treated  him  justly,  evidence  to 
show  a  transaction  between  them,  or  the 
conduct  of  the  son-in-law  in  respect  thereto, 
in  80  far  as  it  was  known  to  the  testator,  is 
admissible  upon  the  trial  of  an  issue  formed 
by  a  caveat  to  the  propounding  of  the  will, 
•as  tending  to  show  what  operated  on  his 
mind.  Slaughter  v.  Heath,  27:  i,  57  S.  E 
69,  127  Ga.  747. 

1600.  In  a  will  contest  based  on  testator's 
belief  in  spiritualism,  evidence  is  admis- 
sible as  to  whether  or  not  certain  beliefs  I 
would  be  irrational  from  the  standpoint  of 
a  spiritualist.  O'Dell  v.  GoflF,  10:  989,  112 
N.  W.  736,  149  Mich.  152. 

1601.  Upon  the  question  of  the  testamen- 
tary capacity  of  a  believer  in  spiritualism, 
evidence  of  the  truth  or  untruth  of  such 
faith  is  inadmissible.  O'Dell  v.  Goff,  10: 
989,  112  N.  W.  736,  142  Mich.  152. 

—  Of  accused. 

3602.  Whether  evidence  of  conduct  of  a 
person  after  the  fact  in  a  criminal  prose- 
icution  is  admissible  on  the  question  of 
■whether  such  person  was  legally  sane  at 
Digest  1-52  I..R.A.(N.S.) 


the  time  of  such  fact  depends  upon  whether 
such  conduct  bears  such  relation  to  such 
person's  former  condition  of  mind  as,  in 
reason,  to  be  worthy  of  consideration  in 
respect  thereto.  Oborn  v.  State,  31 :  966, 
126  N.  W.  737,  143  Wis.  249. 

1603.  Upon  an  indictment  for  perjury,  evi- 
dence is  admissible  that,  down  to  a  date  re- 
cently before  the  commission  of  the  alleged 
crime,  accused  stood  on  the  brink  of  paresis, 
and  that  his  memory  was -wholly  unreliable. 
State  V.  Coyne,  21:  993,  114  S.  W.  8,  214  Mo. 
344.  (Annotated) 

I<i04.  It  is  not  competent  to  prove  tiiai  one 
accused  of  homicide  is  of  weak  mind,  when 
it  is  admitted  that  he  is  neither  an  idiot 
nor  an  insane  person,  since  the  evidence 
would  not  tend  to  establish  non-responsibil- 
ity for  his  crime.  Rogers  v.  State,  10:  999, 
57  S.  E.  227,  128  Ga.  67.  (Annotated) 

1605.  Evidence  as  to  the  insanity  of  one 
accused  of  murder  need  not  be  confined  to 
the  mental  condition  of  the  defendant  at  the 
time  of  the  homicide  where  the  defense  is 
based  on  the  theory  that  mental  derange- 
ment had  existed  for  a  considerable  time. 
State  V.  Rumble,  25:  376,  105  Pac.  1,  81 
Kan.  16. 

1606.  Where  the  defense  to  a  charge  of 
murder  is  delusional  insanity,  evidence  is 
admissible  tending  to  show  the  conduct  of 
accused  upon  the  occasion  of  other  tiglits 
which  he  had  had,  during  which  there  is  no 
pretense  that  he  was  not  sane.  Smith  v. 
State,  27:  461,  49  So.  945,  95  Miss.  786. 

c.  Intent;  motive;  fraud;  undue  in- 
fluence; duress;  malice;  good 
faith;  interest, 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Intent;  purpose. 

Sufficiency  of  evidence,  see  infra,  2191, 
2228-2235. 

Prejudicial  error  as  to,  see  Appeal  and  Er- 
ror, 1196,  1238. 

See  also  infra,  1850,  1884,  1904,  1908,  1912, 
1913. 

1607.  While  the  circumstances  attending 
the  act  of  a  party  are  competent  evidence  of 
the  condition  or  state  of  his  mind  in  doing 
it,  his  own  testimony  as  to  his  motive,  pur- 
pose, and  intent  is  also  competent.  Eckerd 
V.  Weve,  38:  516,  118  Pac.  870,  85  Kan.  752. 

1608.  Ihat  the  treasurer  of  a  corporation 
mtfde  use,  for  his  own  purposes,  of  money 
belonging  to  his  ward,  soon  after  depositing 
it  in  the  corporation's  bank  account,  and 
that,  in  so  doing,  he  pursued  the  course  of 
his  habit  in  the  use  of  private  frnds,  is  com- 
petent evidence  upon  the  question  of  his  in- 
tention in  withdrawing  the  money  from  the 
ward's  account,  and  depositing  it  in  that  of 
the  corporation.  Brookhouse  v.  Union  Pub. 
Co.  2:  993,  62  Atl.  219,  73  N.  H.  368. 

1609.  One  whose  property  is  sought  by 
right  of  eminent  domain  to  widen  a  street 
may  introduce  evidence  to  prove  that  the 
purpose  of  the  widening  is  to  accommodate 
a  railway  connection  with  private  property. 


EVIDENCE,  XI.  e. 


1191 


Kansas  City  v.  Hyde,  7:  639,  96  S.  W.  201, 
1»G   Mo.   498. 

1610.  That  a  jury  in  an  eminent  domain 
proceeding  is  impaneled  merely  to  try  the 
question  of  damages  does  not  preclude  the 
admission  of  evidence,  for  the  consideration 
of  the  court,  that  the  proceeding  is  insti- 
tuted for  private,  and  not  for  public  benefit. 
Kansas  City  v.  Hyde,  7:  639,  96  S.  W.  201, 
196  Mo.  498. 

1611.  A  question  propounded  plaintiff  in 
an  action  for  an  accounting  for  notes  de- 
livered to  defendant's  intestate  for  collec- 
tion, as  to  whether  certain  items  in  an  ac- 
count previously  rendered  defendant  and 
offered  in  evidence  by  him  represented  or 
was  intended  to  represent  the  notes  as  to 
which  an  accounting  was  demanded,  was 
properly  rejected,  as  the  question  of  plain- 
tiff's intent  was  not  material,  and  it  waa 
for  the  court,  or  the  jury  instructed  by  the 
court,  to  determine  whether  the  declara- 
tion or  any  of  the  items  in  the  account 
were  supported  by  the  evidence.  Sayre  v. 
Woodyard,  28:  388,  66  S.  E.  320,  66  W.  Va. 
288. 

1612.  In  an  action  to  hold  an  employer 
liable  for  assault  on  his  servant  in  remov- 
ing him  from  his  premises  after  termina- 
tion of  the  employment,  he  may  testify 
that  his  intent  in  placing  his  hands 
upon  the  servant  was  merely  to  effect  a 
peaceable  removal.  Noonan  v.  Luther,  41: 
761,  99  N.  E.  178,  206  N.  Y.  105. 

1613.  One  ejected  from  a  train  because  of 
his  refusal  to  give  up  the  amount  tendered 
to  the  conductor  in  payment  of  the  fare 
unless  the  latter  would  first  give  him  the 
change  representing  the  difference  between 
that  amount  and  the  correct  fare  should  not 
be  permitted  to  testify,  in  an  action  for 
damages  sustained  by  his  ejection,  that  he 
was  only  joking,  and  really  intended  to  pay 
the  fare,  and  would  have  done  so  had  he  not 
been  ejected,  unless  he  stated  to  the  con- 
ductor that  he  was  joking,  or  that  fact  was 
known  to  the  latter.  Louisville  &  N.  R. 
Co.  v.  Cottengim,  13:  624,  104  S.  W.  280,  31 
Ky.  L.  Rep.  871. 

1614.  In  an  action  against  a  railway  com- 
pany for  damages  alleged  to  have  been 
caused  by  its  employee  riding  a  railroad 
tricycle  over  a  highway  crossing  in  a  wan- 
tonly reckless  manner,  thereby  frightening 
plaintiff's  horse  and  injuring  the  owner, 
such  employee  is  a  competent  witness  to 
testify  as  to  his  motive  and  intention  at 
such  time.  Baker  v.  Missouri,  K.  &  T.  R. 
Co.  35:  822,  116  Pac.  816,  85  Kan.  18. 

—  Of  parties  to  contract. 

1615.  Upon  the  question  of  the  interpreta- 
tion of  a  contract,  evidence  is  not  admis- 
sible as  to  what  one  of  the  parties  had  in 
contemplation  about  its  effect.  Valley 
Planting  Co.  v.  Wise,  26:  403,  123  S.  W. 
768,  93  Ark.  1. 

1616.  Evidence  of  intention  to  restore 
money  borrowed  by  a  man  of  his  wife  to 
pay  for  real  estate  is  not  admissible  in  an 
action  by  her  to  establish  her  rights  under 
an  agreement  by  him  to  take  the  title  in  her 
Digest  1-52  L.R.A.(N.S.) 


name.     Sparks  v.  Taylor,  6:  381,  90  S.  W. 
485,  99  Tex.  411. 

1617.  Evidence  as  to  the  intent  of  a  buyer 
of  machinery  is  immaterial  in  an  action  for 
the  purchase  price,  if  he  has  accepted  it  by 
appropriating  it  to  his  own  use.  Fred  W. 
Wolf  Co.  V.  Monarch  Refrigerating  Co.  50: 
808,  96  N.  E.  1603,  2^2  111.  491. 

1618.  As  between  a  mortgagee  of  machinery 
and  one  who  had  sold  it  to  the  mortgagor 
on  condition,  evidence  is  admissible  to  show 
the  intent  with  which  the  mortgage  was 
given  as  bearing  on  the  question  whether 
or  not  the  machinery  had  been  accepted  by 
the  mortgagor.  Harrison  v.  Scott,  38:  1035, 
96  N.  E.  755,  203  N.  Y.  369. 

1619.  Evidence  of  transactions  between  a 
buyer  and  agent  of  the  seller,  who,  upon 
existing  relations  between  the  parties  be- 
coming unsatisfactory,  is  sent  to  negotiate 
an  adjustment,  is  admissible  upon  the  ques- 
tion of  the  intention  of  the  parties  as  to 
future  sales,  although  the  agent  had  no 
authority  to  conclude  a  contract,  where  he 
assumed  to  agree  to  a  new  arrangement, 
which  the  seller  acted  upon.  Hamilton  v. 
Joseph  Schlitz  Brewing  Co.  2:  1078,  105  N. 
W.  438,  129  Iowa,  172. 

1620.  Although  checks  given  by  a  debtor  to 
his  creditor  within  the  time  of  the  transac- 
tions making  up  an  account  are  presumed  to 
have  been  payments  upon  the  account,  they 
may  be  shown  to  have  been  for  another  pur- 
pose, as  to  procure  money  to  carry  on  the 
business  of  the  debtor.  Lewis  v.  England, 
2:  401,  82  Pac.  869,  14  Wyo.   128. 

1621.  In  an  action  by  a  bank  which  has  re- 
turned money  paid  on  a  forged  check,  to 
recover  the  amount  from  the  bank  to  which 
it  paid  the  check  and  which  guaranteed 
prior  indorsements,  evidence  is  admissible' 
which  tends  to  show  that  the  one  wlio  made 
the  first  indorsement  was  tl>e  one  who 
the  maker  of  the  check  intended  should  re- 
ceive the  money.  Central  Nat.  Bank  v.  Na- 
tional Metropolitan  Bank,  17:  520,  31  App. 
D.  C.  391. 

1622.  In  an  action  by  a  surety  on  a  guard- 
ian's bond  to  recover  from  the  receiver  of 
an  insolvent  bank  the  amount  of  dividends 
paid  to,  but  not  accounted  for  by,  tiie 
guardian,  who  held  a  certificate  of  deposit, 
payable  to  the  order  of  the  surety,  evidence 
that  the  purpose  of  the  surety  in  making  an 
arrangement  with  the  guardian^  with  the 
knowledge  of  the  officers  of  the  bank,  that 
funds  were  not  to  be  withdrawn  except 
upon  the  joint  check  or  indorsement  of  both 
the  surety  and  guardian,  was  to  prevent  the 
latter  from  making  an  improper  use  of  the 
ward's  funds,  is  inadmissible  where  it  forms 
no  part  of  what  was  said  or  done.  Fidelity 
&  D.  Co.  v.  Butler,  16:  994,  60  S.  E.  851,  130 
Ga.  225. 

1623.  A  "nonwaiver  agreement"  executed 
by  the  insured  after  loss,  without  considera- 
tion, is  admissible  in  an  action  on  the  policy 
only  for  the  purpose  of  determining  what 
the  intentions  of  the  parties  were  at  the 
time.  Gish  v.  Insurance  Co.  of  N.  A.  13: 
826,  87  Pac.  869,  16  Okla.  59. 

1624.  In  an  action  by  a  subcontractor  to 


im 


EVIDENCE,  XI.  e. 


recover  for  work  and  labor  on  a  building 
under  an  alleged  oral  contract  with  the 
owner,  the  fact  that  the  subcontractor  filed 
an  unsuccessful  claim  for  a  lien  after  com- 
pletion of  the  building  is  an  evidential  fact 
for  the  jury  on  the  question  of  the  subcon- 
tractor's intention  to  release  defendant  from 
his  oral  promise.  Howell  v.  Harvey,  22: 
1077,  64  S.  E.  249,  65  W.  Va.  310. 

—  Fraudulent  intent. 

Sufficiency  of  evidence  as  to,  see  infra,  2233. 
See  also  infra,  1633. 

1625.  One  charged  with  deceit  in  making 
false  representations  for  another  to  act 
upon  may  testify  as  to  the  intent  with 
which  they  were  made.  Beach  v.  Beach, 
46:  98,  141  N.  W.  921,  160  Iowa,  346. 

1626.  In  an  action  for  rescission  of  a  con- 
tract for  fraud  in  making  promises  not  in- 
tended to  be  performed,  the  subsequent  acts 
and  conduct  of  the  promisor  may  be  sub- 
mitted to  the  jury  as  some  evidence  of  the 
original  intent  and  purpose  when  they  tend 
to  indicate  it.  Braddy  v.  Elliott,  16:  iiai, 
60  S.  E.  507,  146  N.  C.  578. 

1627.  In  an  action  to  recover  damages  for 
false  representations  in  regard  to  an  animal 
which  one  who  had  defrauded  another  in  a 
trade  substituted  for  the  one  which  he  first 
transferred,  evidence  of  the  deceit  in  the 
first  transaction  is  admissible  to  prove  in- 
tent in  the  last.  Robertson  v.  Halton,  37: 
298,  72  S.  E.  316,  156  N.  C.  215. 

—  To  dedicate  land. 

1628.  Upon  the  question  of  the  intent  of 
one  who  has  filed  a  plat  of  lots  to  be  sold, 
and  dedicated  to  public  use  spaces  shown 
thereon  as  streets,  evidence  is  not  admissi- 
ble of  instructions  given  by  him  to  his  sur- 
veyor. Los  Angeles  v.  McCollum,  23:  378, 
103  Pac.  914,  156  Cal.   148. 

1629.  A  quitclaim  deed  by  a  littoral  owner 
to  the  public,  of  a  right  of  way  along  the 
tide  land  in  front  of  his  property,  may  be 
considered  as  evidence  of  intention  to  re- 
lease to  the  public  his  littoral  rights  of  ac- 
cess to  the  water.  McCloskey  v.  Pacific 
Coast  Co.  22:  673,  160  Fed.  794,  87  C.  C.  A. 
568. 

—  In  making   slanderous   statement. 

1630.  In  support  of  a  defense  of  privileged 
communication,  one  charged  with  slander 
may  testify  that  he  had  no  design  to  injure 
the  person  slandered.  Fleet  v.  Tichenor, 
34:  323,   104  Pac.  458,   156   Cal.   343. 

1631.  To  avoid  exemplary  damages  a  de- 
fendant in  an  action  for  slander  may  testify 
that  he  was  not  actuated  by  a  desire  to 
injure  the  person  slandered.  Fleet  v. 
Tichenor,  34:  323,  104  Pac.  458,  156  Cal.  343. 

( Annotated ) 

—  Of  testator. 

1 632.  The  mere  fact  that  a  will,  making  no 
reference  to  real  estate,  gives  legacies  in  ex- 
cess of  testator's  personalty,  will  not  ad- 
mit evidence  that  testator  meant  by  the 
legacies  to  repay  money  loaned  him  for  the 
purchase  of  the  realty,  and  therefore  in- 
tended them  to  be  a  charge  upon  it.  Fries  v. 
Osborn,  19:  457,  82  N.  E.  716,  190  N.  Y.  35. 

(Annotated) 
Dig«st  1-52  I..R.A.(N.S.) 


—  In  criminal  cases. 

1633.  Upon  the  question  of  fraudulent  in- 
tent of  one  who  obtains  from  a  county  pay- 
ment of  an  account  a  second  time,  evidence 
is  admissible  of  other  acts  of  the  same  char- 
acter by  the  defendant.  State  v.  Talley, 
11:  938,  57  S.  E.  618,  77  S.  C.  99. 

1G34.  Testimony  of  a  client  that  money  de- 
livered to  his  attorney  for  investment  had 
never  been  returned  is  admissible  in  evi- 
dence on  the  question  of  intent  in  a  prose- 
cution against  the  attorney  for  forgery  of 
a  note  purporting  to  represent  the  invest- 
ment. People  v.  Campbell,  34:  58,  125  N. 
W.  42,  160  Mich.  108. 

1635.  One  on  trial  for  murder  because  of  a 
homicide  caused  by  a  spring  gun  set  by 
him  cannot  testify  that  he  did  not  intend 
to  kill  deceased.  State  v.  Marfaudille,  14: 
346,  92  Pac.  939,  48  Wash.  117. 

1636.  One  on  trial  for  shooting  a  man 
larger  than  himself  may  testify  that  he  had 
been  assaulted  and  maimed  by  a  similar 
man  on  a  previous  occasion,  after  which  he 
had  carried  a  weapon,  as  tending  to  show 
that  he  did  not  arm  himself  especially  for 
the  occasion  of  the  shooting,  and  as  showing 
his  apprehension  of  bodily  harm.  State  v. 
Doris,  16:  660,  94  Pac.  44,  51  Or.  136. 

1637.  The  representations  of  one  as  to  his 
intention  with  respect  to  the  future  use  of 
securities  which  he  obtains  as  collateral, 
and  which  he  subsequently  converts  to  his 
own  use  in  selling  them  to  a  stranger,  are 
material  on  the  question  whether  or  not  he 
obtained  possession  of  them  for  the  purpose 
of  feloniously  converting  them  to  his  own 
use,  so  as  to  render  him  guilty  of  larceny. 
Com.  v.  Althause,  31 :  999,  93  N.  E.  202, 
207  Mass.  32. 

1638.  In  a  prosecution  for  having  in  pos- 
session intoxicating  liquor  with  intent  to 
sell  same,  proof  that  the  defendant  kept 
large  quantities  of  liquor  concealed  on  his 
premises  is  competent  as  a  circumstance 
tending  to  show  the  intent  to  sell.  Childs 
V.  State,  33:  563,  113  Pac.  545,  4  Okla.  Crim, 
Rep.  474. 

1639.  Upon  trial  of  one  accused  of  violating 
the  liquor  law,  evidence  is  admissible  that 
he  purchased  for  sale  a  soft  drink  under  the 
manufacturer's  guaranty  that  it  was  non- 
alcoholic, was  shown  u  certificate  from  the 
state  official  that  it  was  not  taxable,  sold 
only  a  small  portion  of  it,  and,  upon  receiv- 
ing notice  that  it  seemed  to  be  intoxicating, 
he  immediately  returned  the  remainder  i.o 
the  manufacturer.  State  v.  Powell,  6:  477, 
53  S.  E.  515,  141  N.  C.  780. 

1640.  On  the  trial  of  a  member  of  the 
board  of  education  charged  with  receiving 
money  as  a  bribe  to  influence  his  opinion, 
judgment,  and  action  as  a  member  of  the 
board  in  causing  a  contract  to  be  let  for 
I  the  cleaning  of  school  buildings,  testimony 
that  the  contractor  who  paid  defendant  the 
alleged  bribe  soon  afterwards  took  a  similar 
contract  with  an  individual  at  a  much  lower 
price  is  material  and  competent  evidence  of 
the  intent  with  which  the  money  was  re- 
ceived. State  V.  Campbell,  9:  533>  85  Pac 
784,  73  Kan.  688.  '    ,    -n -in  •t-e  n* 


EVIDENCE,  XI.  e. 


1193 


1G4].  Evidence  of  a  trip  to  another  state 
and  what  happened  there  between  the  de- 
fendant in  a  prosecution  for  adultery  and 
the  woman  with  whom  he  is  charged  with 
having  committed  adultery  is  competent  and 
admissible  in  evidence,  since  it  is  part  of 
the  general  plan  or  conspiracy  of  the  par- 
ties, and  tends  to  explain  the  purposes  of 
the  defendant  and  the  woman  in  being  to- 
gether under  suspicious  circumstances  in 
the  county  where  the  prosecution  is  taking 
place.  Woody  v.  State,  49:  479,  13G  Pac. 
430,  10  Okla.  Crim.  Rep.  322. 
Motive;  reason. 
Evidence  of  other  crimes  to  show,  see  infra, 

1914,   1915. 
See    also    supra,    1394,    1607,    1614;    infra, 

1680,  1832,  1928. 

1642.  For  the  purpose  of  showing  the 
motive  of  the  husband,  defendant,  in  an 
action  for  enticing  away  another  woman's 
husband,  may  show  her  own  financial  con- 
dition. Scott  V.  O'Brien,  16:  742,  110  S.  W. 
260,  129  Ky.  1. 

1643.  As  against  a  general  objection,  evi- 
dence as  to  the  suffering  for  food  of  a  wife 
and  children  may  be  admitted  for  the  pur- 
pose of  explaining  why  one  spent  a  small 
sum  of  money  on  them  rather  than  to  re- 
lieve his  own  wants,  where  the  jury  is 
charged  that  they  must  not  allow  any  dam- 
ages for  the  suffering  of  the  wife  or  chil- 
dren. Western  U.  Teleg.  Co.  v.  Wells, 
2:  1072,  39  So.  838,  50  Fla.  474. 

1644.  In  an  action  by  one  detained  unlaw- 
fully and  against  her  will  in  a  reforma- 
tory institution,  to  recover  damages  for 
false  imprisonment,  evidence  is  admissible 
tending  to  prove  a  motive  other  than  a 
purely  charitable  one  for  the  detention, 
and  that  she  was  made  to  work  for  the 
profit  of  the  institution.  Gallon  v.  House 
of  Good  Shepherd,  24:  286,  122  N,  W.  631, 
158  Mich.  361. 

1645.  Evidence  tending  to  show  that  pas- 
sengers left  a  street  car  because  of  the 
conduct  of  other  passengers,  and  that  in 
so  doing  they  complained  to  the  conduc- 
tor or  within  his  hearing  of  such  conduct, 
is  admissible  in  an  action  by  the  latter 
passengers  to  recover  damages  for  unlawful 
ejection  from  the  car,  as  part  of  the  res 
gestae,  and  as  tending  to  explain  the  motive 
of  the  conductor,  irrespective  of  whether 
or  not  such  complaints  were  made  within 
the  hearing  of  the  ejected  passengers. 
United  Power  Co.  v.  Matheny,  28:  761,  90 
N.  E.  154,  81   Ohio  St.  204. 

1646.  For  the  purpose  of  determining  the 
validity  of  a  general  ordinance  relating 
to  the  imposition  of  a  license  fee  upon  mov- 
ing picture  shows,  it  is  error  to  receive  in 
evidence  admissions  by  members  of  the  vil- 
lage council  that  the  motive  in  enacting 
the  ordinance  was  to  obtain  revenue  for  a 
depleted  village  treasury.  Higgins  v.  La- 
croix,  41:  737,  137  N.  W.  417,  119  Minn. 
145. 

1647.  A  carrier  sued  for  excluding  from  its 
boat  an  intending  passenger  may,  in  ex- 
planation of  its  conduct,  show  his  miscon- 
duct upon  a  former  occasion  upon  the  boat. 
Digest   1-52  I<.B.A.(N.S.) 


Reasor  v.  Paducah  &  I.  Ferry  Co.  43:  820, 
153   S.  W.  222,   152  Ky.   220. 

1648.  In  an  action  by  a  subcontractor  to 
recover  for  work  and  labor  on  a  building 
under  an  alleged  oral  contract  v/ith  the 
owner,  entered  into  after  the  subcontract- 
or's abandonment  of  the  contract  because  of 
the  principal  contractor's  failure  to  pay  him, 
the  fact  that  the  subcontractor  was  sued  on 
the  original  contractor's  bond  for  the  com- 
pletion of  the  building  is  an  evidential  fact 
for  the  jury  on  the  question  whether  the 
subcontractor  was  induced  to  comply  with 
the  contract  because  of  defendant's  promise, 
or  whether  he  did  it  to  relieve  himself  from 
a  liability  greater  than  his  loss  of  the  pay 
for  services.  Howell  v.  Harvey,  22:  1077, 
64  S.  E.  249,  65  W.  Va.  310. 

—  In  criminal   cases. 

1649.  In  a  trial  for  obtaining  money  by 
false  pretenses,  it  is  competent  to  prove,  by 
direct  testimony  of  a  prosecuting  witness, 
that  he  would  not  have  parted  with  the 
money  if  he  had  not  believed  the  repre- 
sentations. State  v.  Hetrick,  34:  642,  113 
Pac.   383,  84  Kan.   157.  (Annotated) 

1650.  One  on  trial  for  libeling  a  public 
officer  may  state  to  the  jury  what  his  mo- 
tive was  in  making  the  publication,  if  there 
is  evidence  which  would  justify  the  jury  in 
finding  that  the  alleged  libelous  matter  was 
true.  Oakes  v.  State,  33:  207,  54  So.  79, 
98  Miss.  80. 

1651.  Upon  trial  of  one  for  perjury  in 
falsely  swearing  that  certain  persons  were 
properly  registered  as  voters  from  a  cer- 
tain place,  evidence  is  admissible  that  ac- 
cused directed  them  to  register,  and  prom- 
ised to  protect  them  from  harm  if  they 
did  so,  as  tending  to  establish  a  motive  for 
the  testimony  as  to  their  being  properly 
registered.  People  v..  Cahill,  20:  1084,  86  N. 
E.  39,  193  N.  Y.  232. 

1652.  The  state,  upon  a  trial  for  assault 
with  intent  to  kill,  in  which  the  defendant, 
to  mitigate  the  offense,  has  testified  that 
he  made  the  assault  while  smarting  under 
a  sense  of  wounded  honor,  caused  by  the 
offering  of  money  by  the  complainant  to  de- 
fendant's wife  to  induce  her  to  have  sexual 
intercourse  with  him,  may  show,  in  order 
that  the  jury  may  understand  the  true  mo- 
tive of  the  defendant  in  making  the  as- 
sault, that  the  defendant  was  being  prose- 
cuted for  statutory  rape  at  the  time  he 
married  her,  that  the  defendant  and  his 
wife  were,  at  the  time  of  the  alleged  in- 
sult, living  at  a  house  of  ill  repute,  and 
that  he  had  absented  himself  from  her, 
thereby  leaving  her  where  slie  miglit  come 
in  contact  v*ith  people  liable  to  approach 
her  improperly.  Caples  v.  State,  26:  1033, 
104  Pac.  493,  3  Okla.  Crim.  Rep.  72. 

1653.  One  on  trial  for  killing  another  may 
testify  that  his  wife  confessed  to  him  her 
criminal  intimacy  with  deceased  as  tend- 
ing to  show  motive.  Shipp  v.  Com.  10: 
335,  99  S.  W.  945,  124  Ky.  643. 

1654.  Evidence  of  a  confession  by  a  wife 
to  infidelity  is  not  admissible  on  a  trial  of 
her  husband  for  killing  her  paramour,  un- 
less it  is  shown  that  knowledge  of  it  came 


1194 


EVIDENCE,  XI.  e. 


to  accused   before   the   homicide.      Shipp   v. 
Com.  lo:  335,  99  S.  W.  945,  124  Ky.  643. 

1655.  Upon  trial  of  a  father  for  killing  a 
man  who  was  paying  unwelcome  atten- 
tions to  his  daughter,  he  may  testify  to 
conversations  with  deceased  indicating  that 
the  latter  was  lecherous  to  a  high  degree, 
and  in  which  he  boasted  of  liis  conquests 
of  women.  Smithson  v.  State,  36:  397,  137 
S.  W.  487,  ]24  Tenn.  218.  (Annotated) 

1656.  Upon  the  trial  of  a  wife  for  the  mur- 
der of  her  husband,  testimony  tending  to 
show  the  existence,  prior  to  the  alleged  kill- 
ing, of  adulterous  relations  between  the 
prisoner  and  a  third  person,  is  admissible, 
for  the  purpose  of  showing  motive  for  the 
commission  of  the  offense.  State  v.  Legg, 
3:  1 152,  53  S.  E.  545,  59  W.  Va.  315. 

1657.  Upon  the  question  of  the  weight  to 
be  given  to  a  dying  declaration  which  has 
been  admitted  in  evidence,  testimony  as  to 
all  circumstances  bearing  upon  and  immedi- 
ately connected  with  its  execution,  includ- 
ing all  statements  made  at  the  time  to  and 
by  the  decedent  as  to  his  condition,  and  by 
him  as  to  his  sense  thereof,  as  well  as  any- 
thing tending  to  throw  light  upon  the 
motive  prompting  him  to  make  the  state- 
ment, is  admissible  in  evidence.  State  v. 
Doris,  16:  660,  94  Pac.  44,  51  Or.  136. 
Fraud;  good  faith. 

Fraudulent    intent,    see    supra,    1625-1627, 

1633. 
Sufficiency  of  evidence,  see  infra,  XII.  c. 
Evidence  of  similar  frauds,  see  infra,  1883- 

1886. 
See  also  infra,  1816. 

1658.  Upon  the  question  of  fraud  in  the 
conveyance  of  property  in  contemplation  of 
marriage,  misrepresentations  after  the  mar- 
riage, as  to  the  amount  of  property  owned 
by  the  grantor,  are  immaterial.  Beechley 
V.  Beechley,  9:  955,  108  N.  W.  762,  134  Iowa, 
75. 

1659.  Evidence  of  actual  misrepresentation 
by  a  man  to  his  intended  wife  as  to  the 
amount  of  his  property  is  inadmissible  upon 
the  question  of  fraud  in  a  prior  conveyance 
by  him  of  property.  Beechley  v.  Beechley, 
g:  955,  108  N.  W.  762,  134  Iowa,  75. 

1660.  Upon  the  question  of  fraud  in  pro- 
curing the  signature  of  a  deed  under  a  mis- 
representation as  to  its  character,  the  jury 
may  be  permitted  to  consider  the  fact  that 
it  was  kept  ofT  the  record  for  a  period  of  ten 
months.  Smith  v.  Moore,  7:  684,  55  S.  E. 
275,  142  N.  C.  277. 

1661.  In  an  action  tocompel  the  restoration 
of  money  by  one  to  whom  it  was  taken 
for  investment,  and  who  gave  therefor 
worthless  obligations  of  a  corporation  of 
which  he  was  president,  evidence  is  admis- 
sible of  the  confidence  which  the  customer 
had  in  him,  and  of  his  method  of  transact- 
ing business  in  the  name  of  corporations 
to  avoid  his  personal  obligations.  Donovan 
V.  Purtell,  i:  176,  75  N.  E.  334,  216  111.  629. 

1662.  That  stock  was  resold  at  a  profit 
several  months  after  it  was  purchased  by 
one  who  is  alleged  to  have  acted  fraudu- 
lently is  not  sufficient  to  show  that  it  was 
worth  that  amount  at  the  time  of  the  al- 
Digest  1-52  L.R.A.(N.S.) 


leged  fraudulent  purchase,  for  the  purpose 
of  forming  a  basis  for  damages.  Boulden 
v.  Stilwell,  i:  258,  60  Atl.  609,  100  Md.  543. 
16G3.  In  an  action  by  a  bank  on  a  note 
purchased  by  it  from  one  who  is  alleged  to 
have  obtained  it  by  fraud  for  property 
which  he  was  to  deliver,  but  did  not,  evi- 
dence is  not  admissible  as  to  his  lack  of 
possession  of  the  property,  where  the  bank 
is  shown  to  be  a  bona  fide  holder.  Lilly  v. 
Hamilton  Bank,  29:  558,  178  Fed.  53,  102 
C.  C.  A.  1. 

1664.  In  a  prosecution  against  a  railroad 
company  for  nuisance  in  the  manner  of  run- 
ning trains  over  a  street  crossing,  evidence 
is  admissible  that  it  acted  on  the  suggestion 
of  the  railroad  commissioners  and  placed  a 
watchman  at  the  crossing,  as  tending  to 
show  its  good  faith  in  attempting  to  protect 
persons  using  the  crossing,  against  the  dan- 
gers arising  from  the  passing  of  its  trains. 
Cincinnati,  N.  O.  &  T.  P.  K.  Co.  v.  Com. 
17:  561,  104  S.  W.  771,  126  Ky,  712. 

1665.  Upon  the  question  of  the  good  faith 
of  an  officer  who  makes  an  illegal  arrest 
without  a  warrant,  evidence  is  admissible 
of  the  instructions  received  from  superior 
officers.  Klein  v.  Pollard,  10:  1008,  112  N. 
W.  717,  149  Mich.  200. 

1666.  Upon  the  question  of  good  faith  and 
use  of  excessive  force  by  a  property  owner 
who,  in  attempting  to  enter  upon  the  prop* 
erty  when  it  was  in  the  wrongful  posses- 
sion of  a  trespasser,  used  firearms  and  sliot 
an  employee  of  the  trespasser,  for  which  he 
is  being  sued  for  damages,  evidence  is  ad- 
missible that  the  trespasser  gained  posses- 
sion of  the  property  by  the  use  of  firearms, 
and  had  remained  armed  up  to  the  time  of 
attempted  entry.  Walker  v.  Chanslor,  17: 
455,  94  Pac.  606,  153  Cal.  118. 

—  Of  applicant  for  insurance. 

1667.  In  an  action  on  a  benefit  certificate 
where  an  issue  is  raised  as  to  false  represen- 
tations, in  that  the  insured  stated  in  his 
application  that  he  had  not  had  consump- 
tion, evidence  that  the  applicant  knew  when 
he  applied  for  the  insurance,  that  he  was  or 
had  been  afflicted  with  tuberculosis,  is  ad- 
missible. Brvant  v.  Modern  Woodmen  of 
America,  27:326,  125  N.  W.  621,  86  Neb. 
372. 

1668.  Evidence  that  an  applicant  for  insur- 
ance had  previously  been  told,  when  seek- 
ing medical  advice,  that  he  had  tuoerculosis, 
is  admissible  in  an  action  on  the  policy, 
upon  the  issue  whether  or  not  the  statement 
in  the  application  that  the  applicant  had  not 
had  consumption  was  made  honestly  and  in 
good  faitli,  where  the  privilege  of  the  wit- 
ness has  been  waived.  Bryant  v.  Modern 
Woodmen  of  America,  27:  326,  125  N.  W. 
621,  88  Neb.  372. 

—  In  procuring  release. 

Sufficiency  of  evidence,  see  infra,  2087,  2088. 
1069.  Upon  the  question  of  fraud  in  se- 
curing a  release  from  an  injured  person, 
the  one  who  secured  it  may  be  permitted 
to  testify  that  he  understood  that  the  re- 
leasor understood  the  nature  of  the  trans- 
action. Blossi  V.  Chicago  &  N.  W.  R.  Co. 
26:  255,  123  N.  W.  360,  144  Iowa,  697. 


EVIDENCE,  XI.  e. 


11P5- 


the  changes  made  in  preparing  the  later  will 
would  in  no  event  affect  the  result  of  the 
contest.  Re  Young,  17:  108,  94  Pac.  731,  33. 
Utah,  382. 

1G77.  In  a  prosecution  for  selling  pooled 
tobacco  contrary  to  statute,  evidence  is  ad- 
missible, in  support  of  a  defense  that  the 
pooling  contract  was  signed  under  duress, 
that  night  riders  had  inflicted  personal  in- 
jury upon,  and  destroyed  the  property  of, 
those  who  had  refused  to  pool,  and  that  ac- 
cuse t  had  been  approached  and  told  that  it 
would  be  best  for  him  to  pool.  Com.  v. 
Reffitt,  42:  329,  148  S.  W,  48,  149  Ky.  300, 
Malice. 

Sufiiciency  of  evidence,  see  infra,  XII.  c. 
Prejudicial  error  as  to,  see  Appeal  and  Eb- 

KOB,  1238. 
Evidence  to  show,   in  trial   for  murder  by 

spring  gun,  see  Homicide,  60. 
See  also  supra,  1358,  1667,  1668. 

1678.  That  one  who  has  made  alleged  slan- 
derous statements  upon  a  privileged  occa- 
sion repeats  them  subsequently  when  called 
upon  for  an  explanation  is  not  admissible 
to  show  malice  in  the  first  utterance,  if  the 
statement  would  not  of  itself  afford  an  ac- 
tion for  slander.  Hayden  v.  Hasbrouck, 
42:  1 109,  84  Atl.  1087,  34  R.  I.  656. 

(Annotated) 

1679.  To  prove  malice  in  an  action  for  the 
publication  of  a  libel,  other  articles  pub- 
lished by  the  same  defendant  are  admissible 
in  evidence,  if  they  will  bear  the  construc- 
tion of  ill-will  towards  plaintiff,  although  in 
one  construction  they  contain  mere  matters 
of  general  political  interest.  Meriwether  v. 
George  Knapp  &  Co.  16:  953,  109  S.  W.  750,. 
211   Mo.   199. 

1680.  In  an  action  for  damages  for  being^ 
called  a  cattle  thief,  actual  malice  being 
charged  as  a  basis  for  punitive  damages, 
where  the  defendant  denied  having  made 
that  charge,  but  avows  having  said  that  it 
was  generally  believed  that  the  plaintiff  had 
stolen  cattle,  he  should  be  allowed  to  testify 
upon  what  he  based  the  statements  he 
avowed  making,  whether  he  believed  them, 
what  basis  he  had  for  them,  and  whether 
he  was  actuated  by  a  desire  to  injure  the 
plaintiff.  Wood  v.  Custer,  38:  1176,  121 
Pac.  355,  86  Kan.  387. 

1681.  To  show  malice,  evidence  is  admissi- 
ble that  a  property  owner,  after  notice, 
made  no  attempt  to  prevent  snow  from 
sliding  from  his  building  onto  adjoining 
property,  and  permitted  the  nuisance  to 
continue  after  action  was  brought  to  re- 
cover damages  for  the  injury.  Bishop  v. 
Readsboro  Chair  Mfg.  Co.  36:  1171,  81  Atl. 
454,  85  Vt.  141. 

1682.  In  an  action  to  enjoin  defendants 
from  shooting  over  plaintiff's  land  from 
covers  or  blinds,  the  plaintiff  is  entitled  to 
show,  where  the  distance  of  the  blinds  from 
her  property  is  in  dispute,  that  the  defend- 
ants' proposed  act  is  malicious,  would  con- 
stitute a  nuisance,  or  would  make  the  use 
of      her      property      eminently      dangerous. 

the  ground  of  undue  influence,  unless  it  is  |  Whittaker  v.  Stangvick,  10:  921,  111  N.  W. 
made  clear  beyond  a  reasonable  doubt  that   295,  100  Minn.  386. 


1670.  Upon  the  question  of  fraud  vel  non 
in  inducing  an  employee  to  accept  benefits 
from  a  relief  department  in  release  of  the 
master's  liability  for  negligent  injuries,  his 
situation,  conduct,  and  surroundings  at  the 
time,  as  well  as  the  amount  received,  may 
be  considered.  King  v.  Atlantic  C.  L.  R. 
Co.  48:  450,  72  S.  E.  801,  157  N.  C.  44. 

—  Of  subscribers  to  stock. 

1671.  Upon  the  question  whether  or  not 
subscriptions  to  the  stock  of  a  corporation 
were  made  in  good  faith,  evidence  as  to  the 
ability  of  the  subscribers  to  pay  must  be 
limited  to  facts  known  by  the  witnesses,  al- 
though upon  the  question  whether  or  not 
the  directors  exercised  ordinary  care  in  ac- 
cepting the  subscriptions,  evidence  is  ad- 
missible of  statements  made  in  their  pres- 
ence as  to  the  ability  of  subscribers.  Stone 
V.  Monticello  Constr.  Co.  40:  978,  117  S.  W. 
369,  135  Ky.  659. 

—  Of  promoters  or  organizers. 

1672.  In  an  action  to  hold  promoters  liable 
for  fraud  in  the  sale  of  bonds  of  a  cor- 
poration, the  jury  may  consider  the  ques- 
tion of  fraud  in  a  statement  of  the  prospec- 
tus that  a  certain  number  of  shares  of  stock 
had  been  issued,  or  directed  to  be  issued, 
when  a  portion  of  such  stock  represented 
property  turned  over  by  the  promoters  at 
more  than  150  times  what  they  paid  for 
it.  Downey  v.  Finucane,  40:  307,  98  N.  E. 
391,  205  N.  Y.  251. 

1673.  In  an  action  to  hold  promoters  lia- 
ble for  fraud  in  selling  bonds  of  a  consoli- 
dated corporation,  the  jury  may  consider 
statements  in  the  prospectus  that  dividends 
liad  been  paid  on  the  stock  of  one  of  the 
constituent  corporations,  when  in  fact  they 
were  never  earned.  Downey  v.  Finucane, 
40:  307,  98  N.  E.  391,  205  N.  Y.  251. 

1674.  In  an  action  by  the  purchaser  of 
bonds  of  a  consolidated  corporation,  to  hold 
the  promoters  liable  for  fraud  in  inducing 
the  sale  by  means  of  a  prospectus  which 
stated  that  one  of  the  corporations  which 
went  into  the  consolidation  owned  a  fran- 
chise acquired  under  advice  of  eminent  coun- 
sel, which  if  good  would  be  very  valuable, 
evidence  is  admissible  that  under  the  law  it 
was  extremely  doubtful  if  it  had  any  value 
whatever,  and  that  they  suppressed  the  fact 
that  they  turned  the  franchise  over  to  the 
corporation  for  more  than  150  times  what 
they  paid  for  it.  Downey  v.  Finucane,  40: 
307,  98  N.  E.  391,  205  N.  Y.  251. 

1675.  In  an  action  by  a  subscriber  to  the 
stock  of  a  trust  company  the  organization 
of  which  was  not  perfected,  to  enforce  the 
personal  liability  of  the  organizers  for  fail- 
ure to  return  his  money,  evidence  is  admis- 
sible that  money  subscribed  was  used  to 
start  a  bank,  as  tending  to  show  a  breach 
of  trust  and  lack  of  good  faith  on  the  part 
of  the  incorporators.  Miller  v.  Denman, 
16:  348,  95  Pac.  67,  49  Wash.  217. 
Undne  influence;  duress. 

Sufficiency  of  evidence,  see  infra,  XII.  c. 

1676.  Evidence  of  the  provision  of  a  former 
will  is  not  immaterial  in  a  will  contest  on 


1196 


EVIDENCE,  XI.  f. 


Interest. 

1683.  One  on  trial  for  perjury  alleged  to 
have  been  committed  in  a  civil  action,  the 
parties  to  which  are  witnesses  against  him, 
may  show  the  status  of  such  action  for  the 
purpose  of  showing  that  such  parties  would 
profit  by  his  conviction,  because  the  action 
IS  still  pending  and  his  conviction  would 
render  him  incompetent  to  testify  in  it. 
State  V.  Eaid,  33:  946,  104  Pac.  275,  65 
Wash.  302. 

/.  Prices;  valiiee. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Opinion  evidence  as  to,  see  supra,  VII.  f. 
Evidence  as  to  damages,  see  infra,  XI.  g. 
Prejudicial  error  as  to,  see  Appeal  and  Eb- 

BOB,  1173,  1224. 
Evidence  of  value  on  question  of  insolvency, 

see  Evidence,  1955. 
See  also  supra,  1662. 

1684.  Upon  the  question  whether  or  not 
the  property  of  a  corporation  is  taxed  at 
the  same  rate  as  that  of  other  corporations 
in  the  state,  evidence  is  relevant  which 
tends  to  establish  the  value  of  the  stock  in 
trade  of  the  latter  corporations.  Boston  & 
M.  R.  Co.  V.  State,  31 :  539,  77  Atl.  996,  75 
N.  H.  513. 

Market  value. 

Admissibility  of  market  quotations,  see  su- 
pra, 862,  863. 

Prejudicial  error  as  to,  see  Appeal  and 
Errob,  1173. 

Services. 

See  also  infra,  1719. 

1685.  In  an  action  for  negligent  injuries, 
pvidence  of  the  market  value  of  services  in  the 
profession  for  which  plaintiff  had  fitted 
himself  is  admissible.  Lake  Shore  &  M.  S. 
H.  Co.  V.  Teeters,  5:  425,  77  N.  E.  599,  166 
Ind.  335. 

Personal  property. 

1686.  In  determining  the  value  of  the  use 
of  an  article  where  it  does  not  appear  that 
there  is  an  absolute  standard  by  which  such 
value  may  be  determined  with  definiteness 
and  certainty,  it  is  not  error  to  admit  evi- 
dence of  the  price  at  which  the  renter  sub- 
sequently sold  the  article.  Carey  Coal  Co. 
v  Bebee  Concrete  Co.  44:  499,  129  Pac.  191, 
88  Kan.  515.  (Annotated) 

1687.  Upon  the  question  of  damages  for 
the  destruction  of  an  artist's  picture,  evi- 
dence is  not  admissible  as  to  its  value  to 
him  individually  as  a  design,  apart  from  its 
market  value.  Wade  v.  Herndl,  5:  855,  107 
N.  W^.  4,  127  Wis.  644. 

1688.  Upon  an  issue  as  to  what  the  use  of 
an  article  is  reasonably  worth  per  day, 
where  it  does  not  appear  that  there  is  any 
absolute  standard  by  which  such  value  may 
be  determined  with  definiteness  and  certain- 
ty, it  is  not  error  to  admit  evidence  of  the 
value  of  the  article  itself,  to  be  considered 
with  other  circumstances  in  determining  the 
value  of  its  use.  Carey  Coal  Co.  v.  Bebee 
Digest  1-52  rhR.A.(N.S.) 


Concrete  Co.  44:  499,  129  Pac.  191,  88  Kan. 

515. 

—  Market  value. 

Market  value  of  services,   see   supra,   1685. 

1689.  In  an  action  for  damages  for  pro- 
curing the  sale  of  corporate  stock  by  fraud, 
evidence  is  admissible  as  to  the  value  of  the 
stock  at  the  time  of  the  sale.  McDonough 
V.  Williams,  8:  452,  92  S.  W.  783,  77  Ark. 
261. 

1690.  Although  the  measure  of  damages 
for  the  conversion  of  chattels  is  their  value 
at  the  time  of  conversion,  it  is  not  error 
to  permit  evidence  as  to  the  highest  mar- 
ket value  between  the  time  of  conversion 
and  the  time  of  trial.  Austin  v.  Vanderbilt, 
6:  298,  85  Pac.  519,  48  Or.  206. 

1691.  The  value  of  a  dog  wantonly  and 
maliciously  killed  or  injured  may  be  proved 
by  evidence  that  he  was  of  a  particular 
breed  and  had  certain  qualities,  and  by 
witnesses  who  know  the  market  value  of 
such  an  animal,  if  any  market  value  be 
shown.  Columbus  R.  Co.  v.  Woolfolk,  lo: 
1136,  58  S.  E.  152,  128  Ga.  631. 

Real  property. 

Prejudicial    error    as    to,    see   Appeal   and 
Error,  1224. 

1692.  Upon  the  question  of  the  rental  value 
of  a  cotton  gin  which  has  been  operated 
during  past  seasons,  evidence  may  be  con- 
sidei-ed  of  the  physical  conditions  of  the 
property,  the  conditions  which  surround  it, 
including  its  patronage,  th^  success  and 
hazards  in  the  past,  and  any  change  for 
better  or  worse.  Standard  Supply  Co.  v. 
Carter,   19:  155,  62  S.  E.   150,  81   S.  C.   181. 

1693.  The  measure  of  damages  for  causing 
a  subsidence  of  the  surface  of  land  being  the 
diminution  in  its  market  value,  evidence 
is  not  admissible  as  to  the  value,  in  them: 
selves,  of  springs  destroyed.  Rabe  v.  Shoen- 
berger  Coal  Co.  3:  782,  62  Atl.  854,  213  Pa. 
252. 

1694.  Evidence  that  the  erection  of  a  pow- 
er plant  had  increased  the  value  of  lands 
is  not  admissible  to  impeach  the  testi- 
mony of  a  witness  as  to  the  value  of  land 
near  it  and  the  price  at  which  sales  had 
been  made,  in  a  proceeding  to  fix  the  com- 
pensation for  land  taken  by  the  plant.  Brown 
V.  W.  T.  Weaver  Power  Co.  3:  912,  52  S. 
E.  954,  140  N.  C.  333. 

1695.  Evidence  of  the  communities  which 
could  utilize  the  water  in  a  particular  tract 
of  land  for  a  water  supply  is  properly  ex- 
cluded in  an  action  for  compensation  from 
one  of  them,  which  has  taken  it  for  that 
purpose,  where  such  utilization  depends  in 
part  upon  the  authority  of  the  legislature 
as  to  distribution  of  the  water.  Sargent  v. 
Merrimac,  11:  996,  81  N.  E.  970,  196  Mass. 
171. 

—  Offers. 

1696.  Evidence  that  an  owner  of  land 
abutting  on  a  highway  wholly  within  which 
a  right  of  way  for  a  telephone  line  is 
sought  to  be  condemned  has  been  ac 
customed  to  use  a  portion  of  the  highway 
for  agricultural  purposes  is  inadmissible  in 
a  proceeding  so  to  condemn  a  right  of  way, 
since   such   testimony   tends    improperly   ta 


EVIDENCE,  XI.  g. 


1197 


enhance  in  the  minds  of  the  jury  the  value 
of  the  strip  to  be  taken,  as  the  abutting 
owner  in  tiie  use  of  the  highway  for  audi 
pu,  poses  was  a  trespasser  without  any  right' 
of  pecuniary  value.  Tri-State  Teleph.  & 
Teleg.  Co.  v.  Cosgriff,  26:  1171,  124  N.  W. 
75,  19  N.  D.  771. 

1697.  Upon  the  question  of  measure  of 
damages  for  breach  of  contract  to  sell  real 
estate,  evidence  is  admissible  of  the  price  at 
which  the  grantee  had  agreed  to  sell  it  to  a 
stranger  if  he  secured  ,the  title.  Kuhlman 
V.  Wieben,  2:  666,  105  N.  W.  445,  129  Iowa, 
188. 

—  Sales  of  similar  property. 

1698.  It  is  not  error  in  the  trial  court 
where  a  question  of  damages  under  the  law 
of  eminent  domain  is  being  tried,  to  reject 
evidence  ol  offers  to  purchase  other  property 
in  the  neighborhood  of  the  land  in  (  uestion, 
about  the  time  condemnation  proceedinga 
were  instituted.  Blincoe  v.  Choctaw,  O.  & 
W.  R.  Co.  4:  890,  83  Pac.  903,  16  Okla.  286. 

1699.  Upon  the  question  of  market  value 
of  property  taken  by  eminent  domain,  evi- 
dence is  admissible  of  the  value  of  lands 
similar  to  those  taken,  or  with  respect 
to  which  differences  from  the  land  taken 
ai'e  explained,  so  as  to  show  the  compara- 
tive market  value  of  the  different  tracts. 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Theodore 
Maxfield  Co.  26:  iiii,  126  S.  W.  83,  94  Ark. 
135. 

—  Previous  sales  of  same  property. 

1700.  The  value  of  a  mine  which  is  turned 
into  a  corporation  organized  to  operate  it 
in  consideration  for  its  stock  may  be  deter- 
mined from  what  its  former  owners  sold  it 
for,  where  they  were  men  of  large  business 
operations,  not  unaccustomed  to  mining, 
and  were  under  no  compulsion  to  sell.  Old 
Dominion  Copper  Min.  &  Smelting  Co.  v. 
Bi'>-elow,  40:  314,  89  N.  E.  193,  203  Mass. 
159. 

1701.  Evidence  of  the  prices  realized  up- 
on a  resale  by  attorneys  at  a  large  profit 
of  an  undivided  half  interest  in  land  sub- 
ject to  a  life  estate,  purchased  from  their 
c'ients,  is  admissible  in  a  suit  by  the  cli- 
ents to  recover  the  profits  realized  by  such 
resale,  and  may  be  considered  in  determin- 
ing whether  the  price  paid  by  the  attorneys 
was  fair,  where  their  witnesses  have  testi- 
fied to  the  changes  in  value  in  the  mean- 
time, and  that  the  undivided  interest  had 
no  market  value  at  the  time  of  the  orig- 
inal purchase.  Hamilton  v.  Allen,  28:  723, 
125  N.  W.  610,  86  Neb.  401. 

Grcwing  crop. 

Evidence  as  to  damages  to,  see  infra,  1739- 
1742. 

1702.  In  arriving  at  the  value  of  a  grow- 
ing crop,  it  is  proper  to  show  by  evidence 
the  probable  yield  under  proper  cultivation, 
and  the  value  of  such  probable  yield  when 
matured,  gatliered.  prepared,  and  ready  for 
sale;  also  the  probable  cost  of  proper  cul- 
tivation necessary  to  mature  the  crop,  as 
well  as  the  cost  of  its  gathering,  prepara- 
tion, and  transportation  to  market.  Mis- 
souri, 0.  &  G.  R.  Co.  V.  Brown,  50:  1124,  136 
Pac.  1117,  41  Okla.  70. 

Digest  1-52    L.R.A.(N.S.) 


g.  Damages. 

(See   also   same   heading   in  Digest  L.R.A, 
1-70  J 

Opinion  evidence  as  to,  see  supra,  VII.  f. 
As  to  values,  see  supra,  XI.  f. 
Admissibility   of   deed   on   question    of,    see 

supra,  787. 
Mitigation  of  damages,  see  infra,  XI.  w. 
Admissibility   of   evidence  under  pleadings, 

see  infra,  2436-2438. 
Prejudicial  error  in  admission  of  evidence 

as    to,    see   Appeal   and    Error,    1099, 

1107,    1108,    1111,    1168,    1184,     1193, 

1195. 
Reversible  error  in  exclusion  of  evidence  as 

to,  see  Appeal  and  Error,  1228. 
Limiting  number   of  witnesses  on  question 

of    damages,    see    Appeal    and    Error, 

1220. 
Proof  of  seduction  in  aggravation  of  dam- 
ages, see  Courts,  302. 
Competency    of    witness    to   testify    to,    see 

Witnesses,  10. 
See  also  supra,  1662,  1687,  1690. 

1703.  In  an  action  by  an  employee  to  hold 
another  liable  in  damages  for  securing  his 
discharge  from  his  employment,  evidence  is 
admissible  that,  although  using  due  dili- 
gence, he  was  unable  to  obtain  regular  work, 
and  was  left  without  his  accustomed  means 
of  subsistence,  as  well  as  a  statement  of  his 
earnings  from  other  sources.  Lopes  v.  Con- 
nolly, 38:  986,  97  N.  E.  80,  210  Mass.  487. 

1704.  Upon  the  question  of  wilfulness  in 
removing  a  telephone  for  nonpayment  of 
rent,  although  the  subscriber  claimed  that 
he  had  paid  it  and  had  a  receipt,  evidence  is- 
to  be  considered  both  that  the  phone  was  re- 
moved notwithstanding  this  claim,  and  that 
he  had  been  in  arrears  before,  and  tliat  the 
collecting  agent  had  informed  the  company 
that  only  part  of  the  amount  due  had  been 
paid.  Carmichael  v.  Southern  Bell  Teleg.  & 
Teleph.  Co.  39:  651,  72  S.  E.  619,  157  N.  C. 
21. 

1705.  In  an  action  against  a  carrier  for 
failure  to  transport  a  salesman's  baggage 
with  reasonable  despatch,  by  reason  of 
which  his  business  is  interrupted,  evidence 
is  admissible  as  to  the  periods  of  activity 
in  his  business.  Webb  v.  Atlantic  Coast 
Line  R.  Co.  9:  1218,  56  S.  E.  954,  76  S.  C. 
193. 

1706.  Where  the  price  of  cattle  at  place  of 
sale  is  governed  by  that  ruling  in  a  near- 
by cattle  market,  less  freight,  evidence  of 
the  price  in  the  latter  place  is  admissible 
in  an  action  to  cover  damages  for  breach 
of  contract  to  purchase  and  receive  cattle 
at  the  former  place.  Evans  v.  Moseley,  50: 
889,  114  Pac.  374,  84  Kan.  322. 
Telegraph  cases. 

1707.  In  an  action  against  a  telegraph  com- 
pany to  recover  for  the  negligent  nondeliv- 
ery of  a  message  containing  an  offer  to 
make  a  contract  with  the  sendee,  it  is 
competent  for  such  sendee  to  testify  that,  if 
the  message  had  been  delivered,  the  offer 
would    have    been    accepted.     Western    U. 


1198 


EVIDENCE,  XL  g. 


Telcg.  Co.  V.  Sights,  4a:  419,   126  Pac.  234^ 
34  Okla.  461. 

—  Mental   su£Periiig. 

1708.  Upon  the  question  of  the  damages  to 
be  allowed  a  son  for  mental  anguish  in  being 
deprived  of  the  privilege  of  attending  his 
mother's  deathbed,  because  of  neglect  to  de- 
liver a  telegram,  evidence  is  not  admissible 
that  he  is  a  physician,  and  that  treatments 
^iven  by  him  when  she  had  previously  had 
similar  attacks  had  resulted  in  recovery,  or 
that  she  was  depressed  by  his  failure  to 
•come  when  exi>ected,  which  had  a  tendency 
•to  hasten  her  death.  Western  U.  Teleg.  Co. 
V.  Williams,  19:409,  112  S.  W.  651,  129 
Ky.  515.  (Annotated) 
Personal  injuries. 

Admissibility    under    pleadings,    see    infra, 

2436,  2437. 
Prejudicial    error    as    to,    see   Appeal   and 

Erbob,  1108,  1168. 
See  also  supra,  1572,  1685. 

1709.  The  expectation  of  life  of  one  injured 
by  another's  negligence  may  be  shown  as 
a  basis  for  the  estimation  of  damages.  Illi- 
nois C.  R.  Co.  v.  Houchins,  1 :  375,  89  S.  W. 
530,  121  Ky.  526. 

1710.  In  an  action  by  an  injured  employee 
for  damages,  evidence  that  he  was  working 
by  the  day,  or  otherwise,  is  immaterial.  II- 
nois  C.  R.  Co.  v.  Lowery,  49:  1149,  63  So. 
S52,   184  Ala.  443. 

1711.  Evidence  of  the  shortening  of  the  leg 
lis  admissible  upon  the  question  of  damages 
idn  an  action  against  a  surgeon  for  negli- 
,gent  failure  properly  to  diagnose  a  frac- 
ture of  the  neck  of  the  femur,  where  there 
is   sufficient  evidence  in   the  case  to  estab- 

Hish   the   negligence.     Bonnet  v.   Foote,   28: 
.136,  107  Pac.  252,  47  Colo.  282. 

1712.  Evidence  that  one  injured  by  neg- 
ligence is  sober  and  industrious  is  admis- 
sible upon  the  question  of  damages,  but  not 
that  he  was  moral.  Louisville  &  N.  R.  Co. 
V.  Daniel,  3:  1190,  91  S.  W.  691,  122  Ky. 
256. 

—  Earning  capacity  and  effect  of  in- 

jury  thereon. 
In  case  of  death,  see  infra,  1726-1728. 

1713.  In  an  action  to  recover  damages  for 
personal  injuries,  evidence  showing  the 
earning  capacity  of  the  party  injured,  the 
nature  and  extent  of  his  business,  and  his 
inability  to  pursue  such  business  in  his  ac- 
customed way,  is  admissible  as  an  aid  and 
guide  to  the  jury  in  exercising  their  judg- 
ment iv  determining  the  amount  of  dam- 
ages to  be  awarded.  McClain  v.  Lewiston 
Interstate  Fair  &  R.  Asso.  25:  691,  104 
Pac.   1015,   17   Idaho,  63. 

1714.  In  an  action  for  personal  injuries  to 
A  horse  jockey  which  incapacitated  him 
from  following  that  vocation,  evidence  as 
to  his  experience  and  ability  is  admissible 
to  aid  the  jury  in  properly  estimating  the 
compensatory  damages.  McClain  v.  Lewis- 
ton  Interstate  Fair  &  R.  Asso.  25:  691,  104 
Pac.  1015,  17  Idaho,  63. 

1715.  While,  upon  the  question  of  damages 
to  be  awarded  for  a  personal  injury,  plain- 
tiff, as  proof  of  his  personal  incapacity  to 
perform  labor,  may  give  evidence  that  he 
Digest  1-52  L.H.A.(N.S.) 


was  compelled  to  ennpiloy  serTantg  to  per- 
form labor  formerly  done  by  liimself,  he 
cannot  show  the  amount  which  he  is  com- 
p«lled  to  pay  for  such  service,  since  it 
would  have  no  bearing  upon,  tlie  diminished 
vaVue  of  his  own  services.  Stynes  v,  Bos- 
ton Elevated  R,  Co,  30:  73.7,  91  N.  E.  9i)8, 
206  Mass.  75.  (Annotated) 

1716.  Upon  the  question:  of  damages  to  be 
allowed  for  a  personal  injury,  evidence  is 
not  admissible  that,  becau.se  o.f  the  experi- 
ence of  the  injured  person;  im  holding  a  cer 
tain  position  in  a  manufactory,  he  was 
qualiiied  to  hold  a  better  one,  so  as  to 
make  the  wages  of  the  latter  the  basis  for 
computation,  if  there  is  notliing  to  show 
probability  of  receiving  the  higher  position. 
Marshall  v.  Dalton  Paper  Mills,  24:  128, 
74  Atl.  108,  82  Vt.  489, 

1717.  Evidence  showing  the  earning  capac- 
ity of  a  minor  is  admissible  in  an  ac- 
tion for  damages  for  personal  injuries  as 
an  aid  and  guide  to  the  jury  in  determin- 
ing the  amount  of  damages  tO'  be  awarded 
for  impaired  capacity  to  pursue  ordinary 
vocations  after  he  readies  hi*  majority,  al- 
though he  cannot  recover  compensation  for 
impaired  capacity  during  minority  because 
he  has  not  alleged  and  proived  that  he 
has  been  given  his  liberty  and  that  hia 
parents  do  not  claim  the  right  to  receive 
such  compensation.  McClaim  v.  Lewiston 
Interstate  Fair  &  R.  Asso.  25:  691,  104  Pac. 
1015,  17  Idaho,  63. 

1718.  Upon  the  question  of  damages  to  be 
awarded  a  married  woman  for  negligent  in- 
jury to  her  person,  witnesses  may  state  that 
before  her  injury  she  performed  certain 
household  duties,  and  what  she  was  able  or 
not  able  to  do  after  the  injjury,  for  the  pur- 
pose of  showing  the  extent  of  the  injury. 
Colorado  Springs  &  I.  R.  Co.  v.  Nichols, 
20:  215,  92  Pac.  691,  41  Colo.  272. 

1719.  Upon  the  question  of  damages  for 
personal  injuries  to  a  physician,  b;  which  hu 
was  for  a  time  disabled  from  attending  to 
his  business,  he  may  testify  as  to  the  value 
of  the  time  lost  by  stating  what  his  actual 
monthly  practice  averages,  and  may  stat* 
the  actual  earnings  of  the  corresponding  tim<» 
of  the  previous  year.  Sluder  v.  St.  l^ouis 
Transit  Co.  5:  186,  88  S.  W.  648,  189  Mo. 
107. 

—  Mental  anguish. 

1720.  It  is  competent  for  the  plaintiff  in  an 
action  against  a  railroad  company  tor  j)or- 
sonal  injuries  to  testify  as  to  the  mental 
anguish  which  he  suffered  while  in  immi- 
nent danger  of  being  burned  to  death  in 
the  debris  of  a  wreck;  and,  in  this  connec- 
tion, it  is  also  proper  for  others  to  testify 
that  they  saw  the  fire  burning  close  to  him. 
Louisville  &  N.  R.  Co.  v.  Brown,  13:  1135, 
106  S.  W.  795,  127  Ky.  732. 

1721.  Upon  the  question  of  damages  to  an 
insurance  solicitor  injured  through  another's 
negligence,  whose  compensation  depended 
upon  the  risks  secured  by  him,  evidence  is 
admissible  as  to  his  average  earnings  dur- 
ing periods  corresponding  with  that  dur- 
ing which  he  was  incapacitated  by  the  ao« 


EVIDENCE,  XI.  g. 


1199 


cidont.      Grcjrorv    v.    Slaughter,    8:  1228,   99 
S.  W.  247,  124  ky.  345.  (Annotated; 

.  —  Physical  suffering. 

1722.  In  an  action  for  damages  for  person- 
al injuries,  it  is  competent  to  ask  the  plain- 
tiff to  tell  the  jury  how  he  suffered  and  the 
extent  of  the  suffering,  as  physical  suffering 
is  a  proper  element  of  damages.  McClain 
V.  Lewiston  Interstate  Fair  &  R.  Asso.  25: 
691,  104  Pac.   1015,   17   Idaho,  63. 

1723.  In  an  action  to  recover  for  the  con- 
scious suffering  prior  to  death  of  one  in- 
jured by  another's  negligence,  evidence  is 
admissible  that  he  was  suffering,  and  finally 
died,  from  an  intercurrent  disease.  Dickin- 
son V.  Boston,  1 :  664,  75  N.  E.  68,  188  Mass. 
595. 

—  Pecuniary  condition. 

1724.  The  father  of  an  infant  suing  for 
damages  for  personal  injuries  cannot  be  in- 
terrogated on  behalf  of  the  infant  as  to  his 
pecuniary  ability,  although  defendant  has 
propounded  questions  to  him  upon  that  sub- 
ject. Kelly  V.  Southern  Wisconsin  R.  Co. 
44:  487,  140  N.  W.  60,  152  Wis.  328. 
Deatli. 

Prejudicial    error   as   to,    see   Appeal   and 

Error,  1107. 
See  also  supra,  850. 

1725.  Although  evidence  of  the  crippled 
condition  of  children  at  tlie  time  of  their 
father's  death  is  admissible  in  an  action 
for  causing  his  death,  on  the  question  of 
damages,  for  the  purpose  of  measuring  their 
pecuniary  loss,  evidence  that  the  children 
had  suffered  from  various  diseases  since 
their  father's  death,  and  that  the  widow 
lately  had  not  enjoyed  such  good  health  as 
at  the  time  of  her  husband's  death,  is  in- 
competent. Simoneau  v.  Pacific  Electric 
R.  Co.  49:  737,  136  Pac.  544,  166  Cal.  264. 

(Annotated) 

—  Possible   earnings. 

1726.  Upon  the  question  of  damages  to  be 
awarded  for  wrongful  death,  the  habits, 
character,  physicial  condition,  earning  ca- 
pacity, and  possible  duration  of  life  of  de- 
ceased may  be  considered.  Cincinnati,  N. 
O.  &  T.  P.  R.  Co.  V.  Lovell,  47:  909,  132  S. 
W.  569,  141  Ky.  249. 

1727.  Evidence  of  the  earnings  of  persons 
proficient  in  a  trade  is  not  admissible  upon 
the  question  of  damages  for  negligently 
killing  an  apprentice.  Central  Foundry  Co. 
V.  Bennett,  i:  1150,  39  So.  574,  144  Ala.  184. 

(Annotated) 

1728.  Upon  the  question  of  the  amount  to 
be  allowed  parents  for  the  death  of  a  child, 
under  the  Federal  employers'  liability  act, 
evidence  may  be  considered  of  the  means 
and  earning  capacity  of  the  son  and  of  the 
parents,  and  the  extent  of  contributions 
which  he  made  to  them.  McCullough  v. 
Chicago,  R.  I.  &  P.  R,  Co.  47:  23,  142  N.  W. 
67,  160  Iowa,  524. 

Interference  with  business. 

1729.  Upon  the  question  of  damages  for 
wrongfully  interfering  with  another's  busi- 
ness to  the  extent  of  suspending  it  for  a 
definite  period,  beyond  mere  temporary  dis- 
turbance, evidence  is  admissible  of  the  value 
Digest  1-52  Ii.R.A.(N.S.) 


of   the   business.      Sparks   v.   McCrary,   22: 
1224,  47  So.  332,  156  Ala.  382. 
Libel  and  slander. 

Mitigation    of    damages,    see    infra,    2013, 
2014. 

1730.  In  a  civil  action  to  recover  damages 
for  the  publication  of  a  libelous  article,  in  a 
state  where  punitive  damages  are  not  re- 
coverable, neither  evidence  of  defendant's  re- 
fusal to  publish  a  retraction,  nor  evidence 
that  others  who  had  also  published  the  al- 
leged libel  had  published  a  retraction,  is  ad- 
missible for  the  purpose  of  enhancing  the 
plaintiff's  recovery.  Dennison  v.  Daily  News 
Pub.  Co.  23  :  362,  118  N.  W.  568,  82  Neb. 
675. 

1731.  One  suing  for  damages  for  the  un- 
authorized publication  of  his  name  in  con- 
nection with  a  patent  medicine  testimonial 
may  testify  that  he  has  been  ridiculed  and 
laughed  at  by  bis  friends  and  acquaintances 
on  acccount  of  the  publication,  to  show  mor- 
tification of  feelings.  Foster-Milburn  Co. 
v.  Chinn,  34:  1137,  120  S.  W.  364,  134  Ky. 
424. 

1732.  In  an  action  for  damages  for  the  un- 
authorized publication  of  one's  name  in  con- 
nection with  a  patent  medicine  testimonial, 
physicians  cannot  be  allowed  to  testify  that 
medical  men  hold  persons  who  give  such 
testimonials  in  bad  repute,  where  plaintiff 
is  not  a  physician,  and  there  is  no  allega- 
tion of  special  damage.  Foster-Milburn  Co. 
V.  Chinn,  34:  1137,  120  S.  W.  364,  134  Ky. 
424. 

1733.  One  suing  for  damages  for  the  pub- 
lication of  his  name  in  connection  with  a 
patent  medicine  testimonial  may  show  that 
there  is  a  scale  of  prices  paid  for  such 
testimonials,  the  amount  being  dependent 
on  the  oflSce  of  the  person,  as  tending  to 
show  that  people  might  infer  that  he  had 
sold  his  signature.  Foster-Milburn  Co.  v. 
Chinn,  34:  1 137,  120  S.  W.  364,  134  Ky.  424. 
Loss  of,  or  injury  to  personal  prop- 
erty. 

1734.  Upon  the  question  of  damages  for 
injury  to  cattle  in  transportation,  evidence 
is  not  admissible  as  to  what  they  sold  for 
after  they  had  been  prepared  for  market 
upon  reaching  their  destination.  Wabash 
R.  Co.  V.  Campbell,  3:  1092,  76  N.  E.  346, 
219  111.  313. 

Loss  of,  or  injury  to  real  property  or 

crops. 
Opinion   evidence,  see  supra,   1125-1132. 
Evidence    as    to    value,    see    supra,    1692- 

1702. 
In   eminent  domain   proceedings,   see  infra, 

1746-1749. 
Prejudicial    error    as   to,    see    Appeal   and 

Error,  1165,  1228. 

1735.  Evidence  of  the  difference  between 
the  value  of  real  property  both  before  and 
after  the  flooding  thereof  by  surface  water, 
caused  by  a  street  improvement,  is  inad- 
missible in  an  action  against  a  city  to  re- 
cover temporary  damages  therefor.  Mc- 
Henry  v.  Parkersburg,  29:  860,  66  S.  E.  750, 
66  W.  Va.  533. 

1736.  Upon  the  question  of  damages  to  par-j 
ticular  property  because  of  the  maintenance] 


1200 


EVIDENCE,  XI.  g. 


of  a  nuisance  near  it,  evidence  is  not  admis- 
sible as  to  the  general  decrease  of  property 
values  in  the  town.  Sherman  Gas  &  Elec- 
tric Co.  V.  Belden,  27:  237,  123  S.  W.  119, 
103  Tex.  59. 

—  Trees. 

1737.  Testimony  as  to  the  actual  mar- 
ket value  of  shade  trees  is  not  admissible  on 
the  question  of  damages,  in  an  action  for 
their  destruction,  as  the  damages  are  meas- 
ured by  the  deterioration  in  the  value  of 
the  land.  Cleveland  School  Dist.  v.  Great 
Northern  R.  Co.  28:  757,  126  N.  W.  995,  20 
N.  D.  124. 

1738.  In  an  action  based  upon  the  destruc- 
tion of  standing  forest  timber  by  fire,  evi- 
dence of  the  value  of  the  timber  itself  is 
admissible,  not  as  defining  the  measure  of 
damages,  which  is  the  diminution  in  the 
value  of  the  land,  but  as  being  proper  to 
be  considered  by  the  jury  in  applying  the 
true  measure  and  ascertaining  the  amount 
of  the  damages  suffered.  Reynolds  v.  Great 
Northern  R.  Co.  52:  91,  138  N.  W.  30,  119 
Minn.  251. 

—  Groixring:  crops. 

Evidence  as  to  value  of,   see  supra,   1702. 

1739.  Upon  the  question  of  injury  to  a 
crop  by  turning  surface  water  upon  it 
early  in  July,  witnesses  may  state  its 
condition  in  June  and  in  August,  there  be- 
ing no  question  that  the  difference  in  con- 
dition, if  any,  was  due  to  the  water.  Mar- 
tin V.  Schwertley,  40:  160,  136  N.  W.  218, 
155  Iowa,  347. 

1740.  Upon  the  question  of  measure  of 
damages  for  failure  to  furnish  water  to  ir- 
rigate crops,  so  that  they  are  lost,  evidence 
is  admissible  of  the  value  of  s^atured  crops 
of  like  kind  with  those  planted,  in  the  neigh- 
borhood where  they  were  growing.  Smith 
V.  Hicks,  19:  938,  98  Pac.  138,  14  N.  M.  560. 

1741.  Evidence  of  the  kind  of  crop  the  land 
will  ordinarily  yield,  of  the  stage  of  the 
crop's  growth  when  injured  or  destroyed, 
of  the  average  yield  per  acre  of  similar 
land  in  the  neighborhood,  the  crop  of  which 
was  cultivated  in  the  same  way  and  was 
not  injured,  of  the  market  value  of  the  crop 
injured,  and  of  the  market  value  of  the 
probable  crop  without  the  injury  at  the 
time  of  maturity,  of  the  expense  that 
would  have  been  incurred  after  the  injury 
in  fitting  for  market  the  portion  of  the 
probable  crop  the  wrongful  act  prevented 
from  maturing,  of  the  time  of  the  injury, 
and  of  the  circumstances  which  conditioned 
the  probability  of  the  maturing  of  the  crop 
at  that  time  in  the  absence  of  the  injury, 
is  competent,  and  may  be  weighed  by  the 
jury  to  find  the  damage  to  a  growing  crop 
at  the  time  of  its  injury.  United  States 
Smelting  Co.  v.  Sisam,  37:  976,  191  Fed. 
293,  112  C.  C.  A.  37. 

1742.  The  facts  from  which  the  conclusion 
of  an  expert  as  to  the  value  of  a  growing 
crop  has  been  arrived  at  are  admissible  in 
an  action  to  recover  for  the  destruction  of 
such  crop,  in  which  action  he  has  been  al- 
lowed to  testify  as  to  such  conclusion,  as  an 
aid  to  the  jury  in  determining  the  correct- 
Dig'ist  1-52  I^R.A.(N.S.) 


ness  of  the  estimate.     Chicago,  R.  I.  &  P.  R. 

Co.    V.   Johnson,   27:  879,    107    Pac.    662,    25 

Okla.  760. 

Assault. 

Mitigation  of  damages,  see  infra,  2011,  2012. 

1743.  Upon  the  question  of  exemplary  dam- 
ages for  assault  in  attempting  to  force  an 
occupant  off  from  land,  evidence  is  admissi- 
ble that  defendant  had  title  to  the  property, 
took  advice  of  counsel,  and  as  to  his  inten- 
tion in  entering  upon  the  land.  Walker  v. 
Chanslor,  17:  455,  94  Pac.  606,  153  Cal.  118. 
Arrest. 

1744.  Upon  the  question  of  damages  for 
causing  the  arrest  and  detention  of  a  pas- 
senger as  a  witness,  evidence  is  admissible 
that  he  was  taken  to  the  jail  and  com- 
pelled to  leave  a  cash  deposit  as  bail.  New 
York,  P.  &  N.  R.  Co.  v.  Waldron,  39:  502, 
82  Atl.  709,  116  Md.  441. 

1745.  Upon  the  question  of  the  liability  of 
a  railroad  company  for  wrongfully  ejecting 
a  party  of  excursionists  from  its  train,  evi- 
dence is  not  admissible  that  they  were  ar- 
rested at  the  place  of  their  ejection  for  dis- 
turbing the  peace,  in  the  absence  of  any- 
thing to  connect  the  railroad  company  with 
the  arrest.  Louisville  &  N.  R.  Co.  v.  Scott, 
34:  206,  133  S.  W.  800,  141  Ky.  538. 
Eminent  domain  proceedings. 
Evidence  as  to  value  of  property,  see  supra, 

1694-1696,  1698,  1699. 
See  also  infra,  1920. 

1746.  Rejection  of  evidence  on  the  subject 
of  insurance  rates,  in  a  proceeding  to  assess 
damages  for  the  exercise  of  the  right  of 
eminent  domain,  is  not  error  where  the 
property  owner  expressly  disclaims  a  right 
to  recover  for  increased  fire  risk.  Boyne 
City,  G.  &  A.  R.  Co.  v.  Anderson,  8:  306, 
109   N.   W.  429,   146  Mich.  328. 

1747.  In  the  absence  of  any  special  circum- 
stances showing  that  the  price  paid  for  land 
was  abnormal,  the  fact  that  a  municipality 
making  a  purchase  of  land  for  park  pur- 
poses, at  private  sale,  had  the  power  of  con- 
demnation of  such  land,  does  not  render 
the  price  paid  inadmissible  in  the  trial  of 
an  issue  before  a  jury  to  determine  the 
amount  to  be  paid  for  other  lands  similar 
in  character  and  similarly  situated  and  con- 
demned for  the  same  purpose.  Curley  v. 
Jersey  City  (N.  J.  Err.  &  App.)  43:  985, 
85  Atl.  197,  83  N.  J.  L.  760.       (Annotated) 

1748.  Upon  the  question  of  damages  to  be 
awarded  abutting  property  owners  for  the 
construction  by  a  municipal  corporation  of 
a  subway  under  a  street  for  rapid  transit 
purposes,  evidence  is  admissible  as  to  the 
condition  of  the  property  down  to  the 
time  of  the  trial,  and  should  not  be  limited 
to  the  opinion  of  experts  as  to  the  probable 
diminution  in  value  of  the  property  by  the 
act  of  taking.  Re  Board  of  Rapid  Transit 
R.  Comrs.  36:  647,  90  N.  E.  456,  197  N.  Y. 
81. 

1749.*  In  determining  the  damages  to  pri- 
vate property  caused  by  the  exercise  of  the 
right  of  eminent  domain  for  a  right  of  way 
for  railroad  purposes,  testimony  showing 
the  excavations,  embankments,  and  obstruc- 
tions to  the  natural  flow  of  aurface  'Nyatef 
'  «.K).A.Xi.,I   iri-t   iaaaia 


EVIDENCE,  XI.  h. 


1201 


necessarily  caused  by  the  construction  of 
the  road  is  properly  admitted  for  the  pur- 
pose of  showing  in  what  way  and  to  what 
extent  the  remaining  portion  of  the  uneon- 
demned  tract  has  been  damaged  by  reason 
of  the  construction  of  the  road.  Arkansas 
Valley  &  W.  R.  Co.  v.  Witt,  13:  237,  91  Pac. 
897,  19  Okla.  262.  (Annotated) 

Mental    suffering. 
From  failure  to  deliver  telegram,  see  supra, 

1708. 
In    case    of    personal    injuries,    see    supra, 

1720,  1721. 
See  also  infra,  1806. 

1750.  Evidence  of  mental  anguish  is  admis- 
sible upon  the  question  of  damages  in  an 
action  to  recover  for  the  wrongful  search 
of  the  dwelling  of  a  widow  against  her  con- 
sent in  the  night,  when  she  was  alone  in  the 
house,  for  the  avowed  purpose  of  connecting 
her  son  with  a  burglary.  Shall  v.  Min- 
neapolis, St.  P.  &  S.  Ste.  M.  R.  Co.  50: 
1151,   145  N.  W.  649,   156   Wis.   195. 

( Annotated ) 
Pecuniary  condition. 

1751.  Evidence  relating  to  the  financial 
credit  and  standing  of  a  customer  of  a  bank 
is  admissible  against  him  in  a  suit  brought 
by  him  against  the  bank  to  recover  dam- 
ages for  the  wrongful  dishonor  of  his  check, 
although  special  damages  are  not  claimed 
by  him.  Hilton  v.  Jesup  Bkg.  Co.  11:224, 
57  S.  E.  78,  128  Ga.  30.  (Annotated) 
lioss  of  profits. 

1752.  Evidence  of  sales  made  subsequently 
to  breach  and  during  the  pendency  of  the 
contract  term,  although  made  by  the  prin- 
cipal, through  other  agents  than  the  plain- 
tiffs, are  admissible  in  evidence,  and,  under 
proper  direction  by  the  court,  may  be 
weighed  by  the  jury  in  estimating  prevented 
gains.  Emerson  v.  Pacific  Coast  &  N.  Pack- 
ing Co.  i:  445,  104  N.  W.  573,  96  Minn.  1. 

1753.  Upon  the  trial  of  a  suit  by  a  lower 
against  an  upper  riparian  owner  for  un- 
reasonable diminution  and  detention  of  the 
water  in  a  stream,  where  the  damages 
claimed  are  loss  of  profits  in  operating  a 
grist  and  flour  mill  from  a  specified  time, 
testimony  offered  by  a  witness  for  plaintiff, 
"that  he  had  heard  people  say  that  they 
had  quit  carrying  their  grinding  to  plain- 
tiff's mill  because  they  could  not  get  it 
giound  on  account  of  low  water,"  is  inad- 
missible where  it  does  not  appear  that  such 
statements  were  made  subsequent  to  such 
speciried  time.  Price  v.  High  Shoals  Mfg. 
Co.  22:  684,  64  S.  E.  87,  132  Ga.  246. 
Exemplary  damages. 

Mitigation  of  damages,  see  infra,  2009. 

1754.  Evidence  as  to  the  value  of  defend- 
ant's property  is  admissible  in  an  action  for 
alienation  of  affections,  if  exemplary  dam- 
ages are  claimed.  Miller  v.  Pearce,  43:  332, 
85  Atl.  620,  86  Vt.  322. 

1755.  Upon  the  question  of  exemplary  dam- 
ages in  an  action  against  police  officers  for 
excluding  an  acceptable  guest  from  a  dance, 
evidence  is  admissible  that  they  were  acting 
under  orders  of  a  superior  officer,  but  it 
cannot  be  considered  on  the  question  of 
Digest  1-52  Ii.R.A.(N.S.) 


actual   damages.     Cullen  v.   Dickenson,  50:    ^ 
987,  144  N.  W.  656,  33  S.  D.  27.  ^ 

Ji.  Care;  skill;  negligence. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Presumption  and  burden  of  proof,  see  su- 
pra, II.  h. 

Opinion   evidence   as  to,   see   supra,   VII.  j. 

Admissibility  of  declarations  as  to  accident 
or  injury,  see  supra,  1370-1373,  1411- 
1425. 

Custom  or  habit  as  to,  see  supra,  1527- 
1541. 

Character  or  reputation  as  to  carelessness, 
see  supra,  1555,   1577-1580. 

Evidence  as  to  notice  or  knowledge,  see  su- 
pra, 1585-1591. 

Similar  acts  or  facts  in  negligence  case, 
see  infra,  XI.  k. 

Evidence  as  to  precautions  taken  at  other 
times,  see  infra,  1808. 

Precautions  after  accident,  see  infra,  1820— 
1823. 

Relevancy  and  materiality  under  particu- 
lar pleadings,  see  infra,  2436-2446. 

Sufficiency  of  evidence,  see  infra,  XII.  d. 

Prejudicial  error  in  admission  or  exclusion 
of  evidence,  see  Appeal  and  Ebrob, 
VII.  m,  3, 

1756.  In  an  action  for  damages  for  failure 
promptly  to  deliver  a  telegram,  the  ad- 
dressee may  show  that  he  had  a  telephone 
in  his  house  and  that  there  was  also  one  in 
the  office  of  the  telegraph  company.  West- 
ern U.  Teleg.  Co.  v.  Hill,  23:  648,  50  So.  248, 
163  Ala.  18. 

1757.  Evidence  that  one  who  received  the 
cash  on  checks  payable  to  another  by  wrong- 
fully indorsing  them  has  not  been  located 
since  is  admissible  upon  the  question  of  the 
owner's  laches  in  making  demand  for  the 
proceeds  upon  the  one  who  cashed  them. 
Blum  V.  Whipple,  13:  211,  80  N.  E.  501,  194 
Mass.  253. 

1758.  In  an  action  upon  an  indemnity 
bond  to  hold  the  indemnitor  liable  for  loss 
to  an  express  company  through  robbery  of 
its  messenger,  evidence  is  admissible  of  <a 
rule  requiring  him  to  keep  the  doors  of 
his  car  chained  as  tending  to  show  what 
were  the  duties  of  the  position,  where  the 
bond  undertakes  to  indemnify  the  employer 
for  loss  sustained  by  the  culpable  negli- 
gence of  the  messenger  in  conducting  the 
duties  pertaining  to  his  position,  although 
the  term  is  defined  by  the  bond  to  mean 
failure  to  exercise  the  degree  of  care  which 
men  of  ordinary  prudence  usually  exercise 
in  regard  to  their  own  affairs.  Great 
Northern  Express  Co.  v.  National  Suretv 
Co.  31:  775,  129  N.  W.  127,  113  Minn.  162. 

1759.  Evidence  as  to  the  conditions  outside 
a  warehouse  is  admissible  in  an  action  to 
recover  for  the  loss  by  fire  originating  from 
without,  of  goods  stored  therein,  where  it 
is  averred  that  defendant  had  failed  to  exer- 
cise the  care  which  the  law  requires  of  a 
bailee  for  hire,  as  it  is  the  duty  of  a  ware- 

76 


1202 


EVIDENCE,  XI.  h. 


^  houseman  to  exercise  due  care  that  goods 
intrusted  to  him  for  storage  shall  not  be 
exposed  to  unusual  hazards  from  without 
the  building  in  which  they  are  stored.  Locke 
V.  Wiley,  24:  1117,  105  Pac.  11,  81  Kan.  143. 

1760.  In  support  of  exceptions  to  the  re- 
port of  a  trustee  in  bankruptcy,  evidence  is 
admissible  as  to  property  belonging  to  the 
bankrupt  which  the  trustee  fails  to  reduce 
to  his  possession.  Re  Reinboth,  16:  341, 
157  Fed.  672,  85  C.  C.  A.  340. 
Ifegligence     causing    personr.l    injury 

generally. 

1761.  Testimony  that  the  plaintiff  may 
have  been  negligent  in  a  previous  isolated 
instance  is  irrelevant,  when  one  of  the  dis- 
puted issues  is  as  to  the  observance  of  prop- 
er care  on  his  part.  Pullman  Co.  v.  Schaff- 
ner,  9:  407,  55  S.  E.  933,  126  Ga.  609. 

1702.  Evidence  that  in  conspicuous  places 
in  a  baseball  park  grand  stand  the  man- 
agement posted  signs  in  large  letters,  stat- 
ing that  it  would  not  be  responsible  for 
injuries  received  from  thrown  or  batted 
balls,  is  admissible  as  tending  to  prove  a 
precaution  taken  to  warn  spectators  of  the 
peril  incident  to  watching  the  game.  Wells 
V.  Minneapolis  Baseball  &  A.  Asso.  46:606, 
142  N.  W.  706,  122  Minn.  327. 

1763.  Whether  or  not  evidence  that  the 
owner  of  a  lumber  pile  promised  to  weight 
the  top  boards,  to  prevent  their  being 
blown  against  a  neighboring  building,  is 
material  in  an  action  to  hold  him  liable  for 
injury  caused  by  boards  so  blown,  depends 
upon  what  a  careful  and  prudent  man 
would  do  under  the  circumstances.  Bishop 
v.  Readsboro  Chair  Mfg.  Co.  36:  1171,  81 
Atl.  454,  85  Vt.  141. 

1764.  It  is  competent,  upon  the  question  of 
negligence  in  the  manner  of  fastening  to  the 
ceiling  a  hook  from  which  an  arc  light  was 
suspended,  to  ask  a  carpenter  who  has 
worked  at  his  trade  for  eighteen  years  as 
to  where  hooks  are  usually  Screwed  in  at- 
taching them  to  a  ceiling,  the  purpose  of 
the  question  being  to  show  that  the  hook 
should  have  been  screwed  through  a  joist, 
instead  of  merely  through  a  ceiling  board  at 
a  place  between  joists.  Fish  v.  Waverly 
Electric  Light  &  P.  Co.  13:  226,  82  N.  E.  150, 
189  N.  Y.  336. 

1765.  In  an  action  to  hold  a  gas  company 
liable  for  destruction  of  a  house  because  of 
an  escape  of  gas  from  a  cap  placed  on  a 
pipe  by  it,  evidence  is  admissible  as  to 
whetlier  or'  not  one  who  approached  the  pipe 
to  connect  it  with  a  stove  was  drunk, 
whether  or  not  he  had  been  drinking  during 
the  day,  and  his  condition  a  short  time 
after  the  accident.  Louisville  Gas  Co.  v. 
Guelat,  42:  703,  1.50  S.  W.  656,  150  Ky.  583. 

1760.  Upon  the  question  of  the  negligence 
of  one  who  has  contracted  to  place  the  su- 
perstructure of  a  bridge  upon  concrete  piers 
to  be  erected  by  another,  in  starting  his 
work  before  the  piers  had  hardened  suflicient- 
ly  to  be  safe,  evidence  is  admissible  to  the 
fcffect  that  the  piers  were  properly  construct- 
ed, but  were  not  allowed  to  become  suffi- 
ciently hard,  and  as  to  the  time  which 
should  be  allowed  for  such  piers  to  harden, 
Pigest  1-52  I<.R.A.(N.S.> 


and  the  danger  of  attempting  to  place  heavy 
weights  upon  such  piers  before  tliey  are 
suHiciently  hard.  Pennsvlvania  Steel  Co. 
V.  Nace,  45:  281,  77  Atl.  "1121.  113  Md.  460. 

1767.  Upon  the  question  of  the  safety  of 
chimneys  left  standing  during  the  demoli- 
tion of  a  building,  evidence  is  immaterial 
that  a  person,  in  passing  the  building, 
walked  on  the  opposite  side  of  the  street 
because  he  was  afraid  the  chimney  would 
fall.  Wilmot  v.  McPadden,  19:  iioi,  65  Atl. 
157,  79  Conn.  367. 

1768.  Upon  the  question  of  negligence  in 
leaving  in  a  street  a  team  unattended,  but 
hitched  to  a  ground  weight,  a  municipal 
ordinance  prescribing  the  care  to  be  used 
in  such  cases,  and  the  weight  of  the  blocks 
to  which  they  must  be  fastened,  is  admissible 
in  evidence.  Caughlin  v.  Campbell-Sell  Bak- 
ing Co.  8:  looi,  89  Pac.  53.  39  Colo.   148. 

1769.  Evidence  as  to  the  traffic  which 
might  reasonably  be  expected  to  be  on  the 
highway  is  admissible  upon  the  hearing  of 
an  appeal  to  the  quarter  sessions  from  a 
conviction  before  justices  of  driving  a  motor 
car  on  a  certain  public  highway  "at  a  speed 
which  was  dangerous  to  the  public  having 
regard  to  all  the  circumstances  of  the  case." 
Elwes  v.  Hopkins,  2  B.  R.  C.  198,  [1906]  2 
K.  B.  1.  Also  Reported  in  75  L.  J.  K.  B. 
N.  S.  450,  70  J.  P.  262,  94  L.  T.  N.  S.  547, 
4  L.  G.  R.  615,  21  Cox,  C.  C.  133. 

(Annotated) 

1770.  A  municipal  ordinance  forbidding 
any  person  to  permit  water  from  his  eaves  to 
be  discharged  upon  the  sidewalk,  or  to  per- 
mit any  conduit  upon  his  land  to  discharge 
water  upon  the  sidewalk,  is  not  immaterial 
upon  the  question  of  the  negligence  of  the 
property  owner  who  cast  water  from  his 
own  roof  upon  his  own  walk  in  such  a  man- 
ner that  it  flowed  naturally  upon  the  side- 
walk. Field  V.  Gowdy,  19:  236,  85  N.  E. 
884,  199  Mass.  568. 

1771.  In  an  action  against  the  owner  of  a 
steer  for  injuries  done  by  it  to  a  traveler 
on  a  highway,  evidenco  is  admissible  that 
the  steer  was  of  a  class  which  are  generally 
wild  and  vicious,  and  when  alone,  or  dis- 
turbed and  warm,  are  dangerous,  and  that 
after  the  injury  it  attacked  other  persons. 
Harris  v.  Carstens  Packing  Co.  6:  1164,  86 
Pac.  1125,  43  Wash.  647. 

1772.  In  an  action  for  damages  caused  by 
frightening  horses  on  a  public  bridge  by  the 
blast  of  a  municipal  waterworks  whistle,  a 
petition  of  a  trade  and  labor  assembly  that 
the  whistle  be  blown  at  5  p.  m.  each  day, 
and  the  action  of  the  city  council  in  grant- 
ing such  petition,  are  not  rendered  inadmis- 
sible in  evidence  by  reason  of  the  fact  that 
the  water  commissioner,  who  had  directed 
the  blowing  of  the  whistle  in  accordance 
with  the  ordinance,  had  gone  out  of  office  be- 
fore the  accident,  the  power  to  regulate 
thereafter  being  vested  in  a  board  of  muni- 
cipal works,  where  such  board  never  revoked 
the  order,  since  in  such  case  the  acts  of  the 
council  are  material  upon  the  question  as  to 
whether  or  not  the  city  exercised  ordinary 
care  in  the  use  of  the  whistle.     Winona  y. 


EVIDENCE,  XI.  h. 


1203 


Botzet,  23:  204,   169   Fed.   321,  94  C.  C.  A. 

563. 

Manufacturers. 

Sufficiency  of  evidence,  see  infra,  2116,  2117, 
2119-2142. 

1773.  Upon  the  question  of  the  negligence 
of  a  manufacturer  of  a  stovepipe  enamel  in 
selling  it  without  warning  of  its  danger- 
ous character,  witnesses  should  not  be  per- 
mitted to  compare  it  with  other  mixtures, 
and  what  warnings  were  given  by  other 
manufacturers,  if  the  constituents  of  the 
various  mixtures  or  their  manner  of  use  is 
not  shown  to  be  the  same.  Wolcho  v.  A.  J. 
Rosenbluth  &  Co.  21:571,  71  Atl.  566,  81 
Conn.  358. 

Parents. 

1774.  Upon  the  question  of  the  measure  of 
restraint  which  a  parent  should  have  exer- 
cised over  an  adult  son  mentally  incom- 
petent, to  prevent  his  inflicting  injury 
upon  another  with  a  deadly  weapon,  evi- 
dence is  not  admissible  as  to  how  people 
generally  regarded  his  mental  condition. 
VVhitesides  v.  Wheeler,  50:  1104,  164  S.  W. 
335,  158  Ky.  121. 

Employers. 

Negligence    of    employee,    see    infra,    1798- 

1800. 
See  also  supra,  1766. 

1775.  Evidence  of  specific  acts  of  negli- 
gence known  to  the  master,  and  of  acts  of 
negligence  like  those  which  cause  the  death 
of  passengers,  so  notorious  that  the  master 
must  have  known  of  them  if  he  had  exer- 
cised reasonable  diligence,  is  admissible  to 
prove  the  habit  or  character  for  incompe- 
tence of  a  servant  who  is  employed  with  due 
care.  Southern  P.  Co.  v.  Hetzer,  i:  288,  135 
Fed.  272,  68  C.  C.  A.  26. 

1776.  Evidence  in  an  action  for  negligence 
in  failing  to  safeguard  a  saw,  that  a  smaller 
and  safer  saw  could  have  been  used,  is  im- 
material where  no  issue  in  the  case  involves 
that  question.  Barclay  v.  Puget  Sound 
Lumber  Co.  16:  140,  93  Pac.  430,  48  Wash. 
241. 

1777.  Evidence  is  not  admissible  that  a 
particular  kind  of  guard  should  have  been 
used  on  exposed  gearing  about  which  em- 
ployees were  required  to  work,  in  an  action 
to  hold  the  master  liable  for  injury  to  a 
servant  through  the  defective  character  of 
the  guard  which  was  furnished.  West  v. 
Bayfield  Mill  Co.  45:  134,  128  N.  W.  992, 
144  Wis.   106. 

1778.  Evidence  that  it  was  practicable  and 
feasible  to  have  so  guarded  an  engine  lo- 
cated in  a  small  engine  house,  and  used  to 
operate  an  elevator,  as  to  have  protected  a 
servant  who  was  injured  by  falling  on  an 
unguarded  belt  and  pulley  connected  there- 
with, is  admissible,  where  a  statute  re- 
quires that  dangerous  machinery  in  any 
factory,  mill,  or  shop  be  guarded,  if  practi- 
cable. Rase  V.  Minneapolis,  St.  P.  &  S.  Ste 
M.  R.  Co.  21 :  138,  120  N.  W.  360,  107  Minn. 
260. 

1779.  Evidence  of  absence  of  ladders  and 
bulkheads  at  places  where  they  should  have 
been  in  a  mine  is  admissible,  in  an  action 
against  the  mine  owner  for  the  death  of  an 
Digest  1-52  L..R.A.(N.S.) 


employee  drowned  by  the  flooding  of  a  mine 
through  an  adjoining  one,  as  tending  to 
show  that,  if  the  defendant  knew  of  the 
danger  from  the  water,  he  failed  to  use  rea- 
sonable precautions  for  the  safety  of  his 
employees.  Williams  v.  Sleepy  Hollow 
Min.  Co.  7:  1170,  86  Pac.  337,  37  Colo.  62. 

1780.  Evidence  of  lack  of  ladders  and  bulk- 
heads where  tliey  should  have  been  in  a 
mine  in  ;w^ich  an  employee  was  drowned  by 
an  inrush  of  water  cannot  be  excluded  in  an 
action  for  his  death  merely  because  he  knew 
of  their  absence,  unless  he  had  knowledge  of 
the  danger  arising  from  the  presence  of  the 
water  in  an  adjoining  mine  in  connection 
with  the  absence  of  such  appliances.  Wil- 
liams V.  Sleepy  Hollow  Min.  Co.  7:  1170,  86 
Pac.   337,   37   Colo.   62. 

1781.  In  an  action  by  a  minor  son  to  re- 
cover damages  for  permanent  personal  in- 
juries sustained  while  working  in  a  coal 
mine,  because  of  the  alleged  negligence  of 
defendant  in  employing  him  without  proper 
warning  and  instruction,  to  perform  a  duty 
the  dangers  of  which  he  was  incapable  of 
comprehending,  evidence  that  work  on  the 
outside  of  the  mine  on  which  the  father  was 
willing  that  his  son  should  be  employed  was 
more  hazardous  than  that  which  the  son 
was  performing  at  the  time  of  his  injury 
is  not  admissible  as  tending  to  prove  either 
the  capacity  of  the  plaintiff  to  perform  the 
inside  work  or  the  extent  of  the  dangers  of 
such  work,  at  least  where  it  does  not  appear 
that  the  father  knew  that  the  outside  work 
was  more  dangerous.  Ewing  v.  Lanark 
Fuel  Co.  29:  487,  65  S.  E.  200,  65  W.  Va. 
726. 

1782.  In  an  action  against  a  railroad  com- 
pany for  injuries  to  an  employee  in  attempt- 
ing to  break  a  lump  of  coal  containing  rock 
and  slate,  evidence  is  not  admissible  of  com- 
plaint to  the  authorities  that  the  coal  fur- 
nished was  bad  for  making  steam,  without 
anything  to  show  that  it  was  unsafe  or  dan- 
gerous to  handle.  Vissman  v.  Southern  R. 
Co.  2:  469,  89  S.  W.  602,  28  Ky.  L.  Rep.  429. 

(Annotated ) 

Carriers. 

Presumption  and  burden  of  proof  as  to,  see 
supra,  II.  h,  1,  b. 

Evidence  of  custom  or  habit,  see  supra, 
1535. 

Negligence  of  passenger,  see  infra,  1795. 

Evidence  of  subsequent  precaution,  see  in- 
fra, 1804. 

Sufficiency  of  evidence,  see  infra,  2145- 
2154. 

See  also  supra,  791,  1583;  infra,  1848. 

1783.  In  an  action  for  damages  accruing 
from  delay  in  transportation,  the  time  ordi- 
narily required  for  carriage  between  two 
points,  the  preparations  made  by  the  car- 
rier, the  effort  at  despatch,  the  character  of 
the  freight,  and  kindred  circumstances,  are 
proper  matters  of  inquiry.  Alabama  G. 
S.  R.  Co.  V.  McKenzie,  45:18,  77  S.  E. 
647,   139  Ga.  410. 

1784.  Upon  the  question  of  negligence  of 
a  railroad  company  in  failing  to  furnish 
cars  according  to  a  particular  requisition, 
another   and   distinct   requisition,   made   at 


1204 


EVIDENCE,  XI.  h. 


another  time,  is  not  admissible  in  evidence. 
Di  Giorgio  Importing  &  S.  S.  Co.  v.  Penn- 
sylvania R.  Co.  8:  io8,  65  Atl.  425,  104  Md. 
693. 

1785.  Evidence  of  mistakes  of  government 
inspectors  as  to  the  presence  of  fever  ticks 
on  cattle  a  year  after  injury  occurred  to  a 
particular  lot  by  that  means  is  not  adiiiLs- 
sible  in  evidence  upon  the  question  as  to 
whether  or  not  such  cattle  were  infected 
by  the  negligence  of  the  carrier  having 
them  in  custody  for  transportation.  Bal- 
timore &  O.  R.  Co.  V,  Dever,  26:  712,  75 
Atl.  352,  112  Md.  296. 
—  Injuries  to  passengers. 

178G.  The  rules  of  a  carrier  which  were 
not  known  to  and  relied  upon  by  the  pas- 
senger are  not  admissible  in  evidence  in  an 
action  against  it  for  injury  to  him,  where 
they  require  of  the  employees  a  greater 
duty  than  the  law  imposes  upon  it.  Chi- 
cago, B.  &  Q.  R.  Co.  V.  Lampman,  25:  217, 
104  Pac.  533,  18  Wyo.  106. 

1787.  Evidence  of  care  customary  among 
well-constructed  and  operated  roads  of  the 
same  class  is  admissible  to  show  diligence, 
in  an  action  brouglit  by  a  passenger  injured 
while  riding  in  a  freight  train  of  a  log- 
ging road.  Campbell  v.  Duluth  &  N.  E.  R. 
Co.  22:  190,  120  N.  W.  375,  107  Minn.  358. 

1788.  Upon  the  question  of  the  negligence 
of  a  conductor  in  permitting  a  passenger  to 
go  on  to  the  step  of  a  platform  on  which  he 
was  standing,  but  from  which  he  was  con- 
tinuously looking  ahead,  at  a  time  when  he 
knew  that  a  fast  train  was  to  pass  from 
the  opposite  direction,  evidence  is  admis- 
sible of  a  rule  forbidding  passengers  to  go 
upon  the  platform  while  the  car  was  in  mo- 
tion. Renaud  v.  New  York,  N.  H.  &  H. 
R.  Co.  38:  689,  97  N.  E.  98,  210  Mass.  553. 
Street  railw^ays. 

Evidence  as  negligent  habits  of  person  in- 
jured, see  supra,  1536. 
Negligence  of  person  killed,  see  infra,  1790. 
Sufficiency  of  evidence,  see  infra,  2164-2166. 

1789.  In  an  action  for  injury  to  the  driver 
of  a  fire  wagon  by  collision  with  a  street  car 
as  he  leaves  the  engine  house,  evidence  that 
the  fire  captain  had  complained  to  the  street 
railway  company  about  the  manner  in  which 
the  street  cars  were  run  by  the  engine  house, 
and  that  the  street  railway  officials  told 
him  the  motormen  were  instructed  to  keep 
the  cars  under  control  when  passing  the 
house,  for  the  reason  that  a  hose  wagon  or 
other  apparatus  might  come  out  on  the 
track,  is  admissible  as  emphasizing  the  fact 
that  an  employee  at  the  engine  house  who 
signaled  the  street  car  just  before  the 
wagon  left  the  house  was  authorized  to  as- 
sume that  the  car  was  under  control,  and 
would  therefore  be  stopped  in  time  to  avoid 
collision  with  the  outcoming  wagon.  Dole 
V.  New  Orleans  R.  &  L.  Co.  19:  623,  46  So. 
929,  121  La.  945. 

At  railroad  crossing. 
Presumption  and  burden  of  proof,  see, su- 
pra, 393-395. 
See  also  supra,  1587. 
Digest  1-52  I..R.A.(N.S.) 


Railroad  cases. 

Presumption  and  burden  of  proof,  see  supra, 

II.  h,  1,  c. 
Negligence  towards  railroad  employee,  see 

supra,  1782. 
Sufficiency  of  evidence,  see  infra,  2155-2163. 
See  also  supra,  1664. 

1790.  Upon  the  question  of  negligence  of 
those  in  charge  of  a  train  wliich  has- 
knocked  down  a  person  using  the  tracks  ac-- 
cording  to  custom  as  a  thoroughfare,  and 
who  was  himself  negligent,  which  will  ren- 
der the  company  liable  for  his  death,  evi- 
dence is  admissible  that  the  engine  which 
killed  him  could  have  been  stopped  before 
it  reached  him,  after  he  was  helpless  be- 
tween the  tracks.  Teakle  v.  San  Pedro,  L. 
A.  &  S.  L.  R.  Co.  10:  486,  90  Pac.  402,  32 
Utah,  276. 

As  to  electricity. 

1791.  Upon  the  question  of  liability  of  an 
electric  company  for  the  death  of  a  fire- 
man by  live  wires  which  fell  from  a  burn- 
ing building,  evidence  is  admissible  of  a 
report  by  the  city  electrician  to  the  board 
of  trustees  and  adopted  by  them,  of  an  ar- 
rangement with  the  electric  company  by 
which  it  was  to  cut  off  power  from  any  dis- 
trict upon  notification  from  him  or  the  fire 
chief,  and  that  no  request  for  disconnection 
was  made  with  respect  to  the  lines  serving 
the  district  in  which  the  fire  was  located, 
prior  to  the  death  of  the  fireman.  Penne- 
baker  v.  San  Joaquin  Light  &  Power  Co- 
31:  1099,   112   Pac.   459,   158   Cal.   579. 

1792.  In  an  action  against  an  electric  light 
company  for  injuries  caused  by  a  grounded 
current  evidence  is  not  admissible  that  ap- 
pliances existed  which  would  enable  it  to 
cut  out  the  grounded  portion  and  turn  the 
current  into  the  remainder  of  the  circuit, 
since  it  is  not  bound  to  adopt  any  particu- 
lar appliance,  but  is  required  to  have  the 
appliances  which  it  does  adopt  reasonably 
safe.  Harrison  v.  Kansas  City  Electric 
Light  Co.  7:  293,  93  S.  W.  951,  195  llo.  606. 
Physicians. 

1793.  Evidence  of  the  result  of  an  exami- 
nation of  a  hip,  made  five  years  after  de- 
fendant was  called  upon  to  treat  it,  is  ad- 
missible in  an  action  against  him  for  mal- 
practice in  failing  to  discover  that  it  was 
fractured,  in  corroboration  of  evidence  that 
its  condition  immediately  after  the  injury 
tended  to  show  a  fracture.  Bonnet  v.  Foote^ 
28:  136,  107  Pac.  252,  47  Colo.  282. 
Contributory   negligence. 

Evidence  of  custom  or  habit,  see  supra,  1531, 

1536-1541. 
Sufficiency  of  evidence,  see  infra,  2170-2179. 

1794.  Upon  the  issue  whether  at  a  par- 
ticular time  a  person  was  exercising  due 
care  for  his  own  safety,  evidence  that  he 
was  intoxicated  is  ordinarily  admissible, 
not  as  constituting  or  conclusively  estab- 
lishing negligence  on  his  part,  but  as  being 
a  circumstance  to  be  considered  in  de- 
termining the  matter.  Mcintosh  v.  Stand- 
ard Oil  Co.  47:  730,  131  Pac.  151,  89  Kan. 
289.  (Annotated) 

1795.  In  an  action  for  injury  to  a  street 
car   passenger   thrown   from   the  car   while- 


EVIDENCE,  XI.  i. 


1205 


holding  with  both  hands  to  the  hand  holds, 
evidence  is  not  admissible  that  prior  to  the 
time  of  accident  he  had  swung  outside  the 
car  and  tapped  on  the  window.  South  Cov- 
ington &  C.  Street  R.  Co.  v.  Hardy,  44: 
32,  153  S.  W.  474,  152  Ky.  374. 

1796.  In  an  action  against  a  street  railway 
•company  for  striking  and  killing  a  pedes- 
trian at  a  crossing  at  night,  evidence  as  to 
the  quality,  strength,  and  effect  of  head- 
lights of  strength  and  brilliancy  equal  to 
that  on  the  car  which  occasioned  the  acci- 
dent on  cars  operating  on  the  same  line 
over  the  crossing,  mailing  it  difficult  to 
judge  the  position  of  the  approaching  car, 
is  admissible  to  show  the  conditions  pre- 
vailing at  the  time  the  person  killed  at- 
tempted to  cross  the  track,  as  bearing  on 
the  question  of  his  alleged  contributory 
negligence.  Simoneau  v.  Pacific  Electric  R. 
•Co.  49:  737,  136  Pac.  544,  166  Cal.  264. 

1797.  Although  the  fact  that  an  electric 
ligiit  located  near  the  place  where  an  acci- 
dent occurred  on  a  public  street,  was  not 
burning  at  the  time  of  the  accident,  is  not 
•evidence  of  negligence  on  the  part  of  the 
municipality,  it  may  be  considered  by  the 
jury  as  tending  to  show  why  the  injured 
person  did  not  avoid  the  obstruction. 
■Campbell  v.  Chillicothe,  39:  451,  144  S.  W. 
408,  239  Mo.  455. 

—  Of  employee. 

1798.  In  an  action  to  hold  an  employer 
liable  for  injury  to  a  machine  operator  in 
reaching  under  the  machine  to  recover  a 
dropped  shuttle,  evidence  is  admissible  of 
the  forewoman's  instructions  to  her  that 
anything  lost  must  be  hunted  for,  and  if  not 
found,  must  be  paid  for.  Balzer  v.  Waring, 
48:  834,  95  N.  E.  257,  176  Ind.  585. 

1799.  In  an  action  brought  by  an  employee 
injured  while  unloading  steel  rails  from  a 
car,  an  offer  on  the  part  of  defemlant  to 
show  that  its  foreman  frequently  instructed 
some  of  the  men,  or  the  gang  in  general,  to 
fitay  from  under  the  lever  and  rails,  and, 
further,  that  he  was  giving  such  instruc- 
tion all  along  during  the  time  the  plaintiff 
was  at  work,  is  properly  rejected,  in  the 
absence  of  any  showing  that  this  was  done 
in  the  presence  or  hearing  of  the  plaintiff. 
Illinois  C.  R.  Co.  v.  Lowery,  49:  1149,  63  So. 
952,  184  Ala.  443. 

1800.  Upon  the  question  of  the  negligence 
of  a  driver  in  a  mine,  seeking  to  hold  his 
employer  liable  for  personal  injuries  due  to 
his  coming  in  contact  with  the  roof  of  the 
tuiuiel,  evidence  is  competent  that  it  was 
proper  and  customary  for  him  to  ride  upon 
the  drawbar  at  the  rear  of  tlie  car,  where 
hte  was  when  he  was  injured,  rather  than 
upon  the  tail  chain  at  the  mule's  heels. 
Duffey  V.  Consolidated  Block  Coal  Co.  30: 
1067,  124  N.  W.  609,  147  Iowa,  225. 

i.  Suggestive    facts;     facts    supporting 
inferences. 

(See  also   same   heading   in   Digest   L.R.A. 
1-70.) 

'Offer    of    compromise    as    confidential    com- 
munication, see  supra,  1319,  1320, 
Digest   1-52  I^R.A.(N.S.) 


Prejudicial  error  aa  to,  see  Appexal  and  Er- 
ror, 1245. 

1801.  In  determining  whether  an  inter- 
lineation in  a  deed  was  made  before  or 
after  execution,  the  jury  may  consider  any 
difference  in  ink  and  writing,  and  also  the 
fact  that  it  was  withheld  from  registration. 
Wicker  v.  Jones,  40:  69,  74  S.  E.  801,  159 
N.  C.  102. 

1802.  Upon  the  question  of  usury  because 
of  a  bonus  taken  by  the  lender's  agent,  who 
claims  that  the  bonus  was  for  services  per- 
formed by  him  for  the  borrower,  evidence 
of  the  performance  of  such  services  is  ad- 
missible. Brown  v.  Johnson,  46:1157,  134 
Pac.   590,   43   Utah,   1. 

1803.  The  fact  that  plaintiff,  an  adjoining 
landowner,  had  not  notified  defendant,  the 
owner  of  an  irrigation  ditch,  of  a  claim  for 
damages  for  casting  water  upon  his  prop- 
erty, is  admissible  in  evidence  upon  a  .dis- 
puted question  as  to  the  existence  of  plain- 
tiff's consent  thereto.  Howell  v.  Big  Horn 
Basin  Colonization  Co.  i :  596,  81  Pac.  785, 
14  Wyo.  14. 

1804.  In  an  action  to  hold  a  street  rail- 
way company  liable  for  injury  to  a  pas- 
senger by  his  becoming  entangled  in  a 
trolley  rope  negligently  left  lying  on  the 
floor  of  the  car,  evidence  is  not  admissible 
that  no  similar  accident  had  ever  been  re- 
ported to  it,  as  tending  to  show  care  in  the 
maintenance  of  the  appliance.  Denver  City 
Tramway  Co.  v.  Hills,  36:  213,  116  Pac.  125, 
50  Colo.  328. 

1805.  A  conviction  in  a  criminal  prosecu- 
tion for  using  profane  and  vulgar  language 
in  the  presence  of  females  while  upon  a  rail- 
road train  is  inadmissible  in  evidence  in  an 
action  against  the  carrier  by  the  person  con- 
victed for  wrongfully  and  forcibly  expelling 
him  from  the  train.  Seaboard  Air  Line  R. 
Co.  V.  O'Quin,  2:  472,  52  S.  E.  427,  124  Ga. 
357. 

1806.  Upon  the  question  of  the  liability  of 
a  railroad  company  in  damages  to  the 
widow  of  one  killed  upon  its  track,  for  fail- 
ure to  gather  up  the  remains,  evidence  is 
not  admissible  that  the  section  master  mani- 
fested impatience  at  the  prospect  of  spend- 
ing the  night  in  guarding  the  body  awaiting 
the  arrival  of  the  coroner.  Kyles  v.  South- 
ern R.  Co.  16:  405,  61  S.  E.  278,  147  N.  C. 
394. 

1807.  Upon  the  question  whether  or  not  a 
rule  of  a  railroad  company  requiring  the 
stopping  of  trains  when  signal  lights  were 
out  had  been  abrogated,  evidence  is  ad- 
missible as  to  the  train's  schedules,  the  num- 
ber of  lights  usually  out,  the  time  which 
would  be  required  to  comply  with  the  rule, 
and  whether  or  not  the  rule  could  be  com- 
plied with  and  the  schedules  met.  Haynes 
V.  North  Carolina  R.  Co.  9:  972,  55  S.  E. 
516,  143  N.  C.  154. 

1808.  In  an  action  for  injuries  alleged  to 
have  been  caused  by  blasting,  evidence  is 
not  admissible  as  to  measures  taken  to  jjro- 
tect  the  persons  of  members  of  the  family 
of  the  injured  person  at  times  other  than 
that  at  which  the  injury  was  done.     Besse- 


1206 


EVIDENCE,  XI.  i. 


mer  Coal,  Iron,  &  Land  Co.  v.  Doak,  12:  389, 
44  So.  627,  152  Ala.  166. 

1809.  In  a  suit  to  hold  one  liable  for  the 
value  of  sheep  killed  by  a  dog  owned  by  his 
daughter  who  lives  with  hira,  in  which  he 
denies  that  the  dog  did  the  killing,  evi- 
dence is  not  admissible  that,  without  his 
knowledge,  his  daughter  killed  the  dog  soon 
after  the  transaction  upon  which  the  suit  is 
based, — especially  where  it  appears  that  she 
did  so  because  she  thought  there  was  danger 
of  trouble  between  her  father  and  plaintilT. 
Holmes  v.  Murray,  17:  431,  105  S.  W.  1085, 
207  Mo.  413. 

1810.  Evidence  of  the  state  of  health  of  an 
insured  person  for  a  considerable  period  of 
time  prior  to  his  death,  where  it  is  claimed 
he  died  by  suicide,  is  proper  as  bearing  on 
whether  the  deceased  came  to  his  death  as 
the  result  of  a  suicidal  intent.  Cady  v. 
Fidelity  &  C.  Co.  17:  260,  113  N.  W.  967, 
134  Wis.  322. 

1811.  Where,  in  defense  to  an  action  on  an 
insurance  policy,  the  company  claims  that 
the  insured  burned  the  property,  and  in- 
troduces evidence  of  suspicious  circum- 
stances, evidence  is  admissible  on  his  be- 
half that  witnesses  overheard  a  telephone 
conversation  which  he  had  with  the  sherifif, 
in  which  he  asked  for  an  investigation  of 
the  burning  of  the  property.  O'Toole  v. 
Ohio  German  F.  Ins.  Co.  24:  802,  123  N.  W. 
796,  159  Mich.  187. 

1812.  Evidence  of  advancements  is  admis- 
ble  in  a  will  contest,  where  it  tends  to  show 
an  unnatural  will.  Meier  v.  Buchter,  6:  202, 
94  S.  W.  883,  197  Mo.  68. 

1813.  Evidence  of  seduction  is  not  admis- 
sible to  show  either  a  contract  of  marriage 
or  its  breach.  Wrynn  v.  Downey,  4:  615, 
63  Atl.  401,  27  R.  I.  464. 

1814.  Upon  trial  of  an  action  for  libel  in 
charging  plaintiff  with  larceny,  evidence 
that  plaintiff  had  been  indicted  for  misde- 
meanor at  other  times  is  not  admissible 
where  none  of  the  indictments  charged 
theft.  Register  Newspaper  Co.  v.  Stone, 
11:  240,  102  S.  W.  800,  31  Ky.  L.  Rep.  458. 

1815.  Evidence  that,  several  months  after 
the  injury  to  one  riding  on  a  freight  train, 
the  railroad  company  issued  to  him  a  pass 
describing  him  as  an  injured  employee,  is 
not  admissible  as  tending  to  show  ratifica- 
tion of  the  conductor's  act  in  permitting 
him  to  ride  in  consideration  of  services  to 
be  rendered  in  handling  freight.  Vassor  v. 
Atlantic  Coast  Line  R.  Co.  7:  950,  54  S.  E. 
849,  142  N.  C.  68. 

1816.  One  resisting  payment  of  a  note  on 
the  ground  of  fraud  may  be  asked  if,  when 
he  suspected  fraud,  he  took  any  steps  to 
recover  possession  of  the  note,  as  bearing 
upon  the  consistency  of  his  conduct  with  his 
titatement  that  he  suspected  fraud.  Lilly 
V.  Hamilton  Bank,  29:  558,  178  Fed.  53,  102 
C.  C.  A.   1. 

1817.  Upon  the  question  of  the  liability  of 
a  railroad  company  for  malpractice  of  & 
physician  employed  with  funds  deducted 
from  employees'  wages,  testimony  of  the 
one  having  charge  of  the  disbursement  of 
the  funds,  to  the  effect  that  they  were  all 
Digest  1-52  Ii.R.A.(N.S.) 


expended  in  the  service  of  the  hospital,  and 
that  the  railroad  company  realized  no  gain 
or  profit  therefrom,  is  competent.  Arkan- 
sas M.  R.  Co.  V.  Pearson,  34:  317,  135  S. 
W.  917,  98  Ark.  399. 
As  to  husband  and  vrite. 
See  also  supra,  1276. 

1818.  In  an  action  against  a  woman  for 
alienating  the  affections  of  the  husband  of 
another  woman  from  her,  evidence  is  admis- 
sible that  he  was  the  active  and  aggressive 
party.  Scott  v.  O'Brien,  16:  742,  110  S.  W. 
260,   129  Ky.   1.  (Annotated) 

1819.  Ihe  subsequent  conduct  of  the  par- 
ties to  an  alleged  marriage  contract  is  re- 
ceivable in  evidence  on  the  issue  as  to 
whether  it  was  a  consensual  or  a  ceremo- 
nial marriage.  Druwdy  v.  Hesters,  15:  190, 
60  S.  E.  451,  130  Ga.  161. 
Precautions  after  accident. 

See  also  supra,  1809;   infra,  2024. 

1820.  Evidence  that,  after  the  breaking  of 
a  pane  of  glass  causing  an  injury,  new 
beading  or  strips  to  hold  the  pane  in  place 
were  placed  in  the  sash,  is  not  admissible 
to  prove  negligence  on  the  part  of  the  owner 
in  the  maintenance  of  the  window.  Stewart 
&  Co,  V.  Harman,  20:  228,  70  Atl.  333,  108 
Md.  446. 

1821.  Evidence  that  an  obstruction  on  a 
sidewalk  was  removed  after  a  person  had 
tripped  upon  it  and  had  been  injured,  if 
admissible  for  other  purposes,  cannot  be 
considered  on  the  question  of  negligence. 
Diamond  Rubber  Co.  v.  Harryman,  15:  775, 
92  Pac.  922,  41  Colo.  415. 

1822.  Evidence  of  change  of  machinery  af- 
ter an  accident  is  admissible  in  evidence  in 
an  action  to  hold  an  employer  liable  for 
an  injury,  for  the  purpose  of  showing  the 
practicability  of  safeguarding  it  in  the  man- 
ner adopted.  Kanz  v.  J.  Neils  Lumber  Co. 
36:  269,  131  N.  W.  643,  114  Minn.  466. 

1823.  Testimony  on  behalf  of  an  infant  as 
to  the  condition  of  a  machine  immediately 
after  an  accident  to  him  for  which  the  ac- 
tion was  brought  does  not  admit  evidence 
of  additional  safeguards  after  the  acci- 
dent. Worthy  v.  Jonesville  Oil  Mill,  11: 
690,  57  S.  E.  634,  77  S.  C.  69. 
Criminal  cases. 

Admitting  proof  of  former  conviction  before 
identifying  person  convicted  with  ac- 
cused, see  Appeal  and  Ebbor,  655. 

1824.  The  fact  that  one  accused  of  crime 
failed  to  take  the  stand  in  other  proceed- 
ings, to  deny  accusations  against  him  by 
witnesses  therein,  is  not  admissible  in  evi- 
dence against  him  upon  his  trial.  Parrott 
V.  State,  35:  1073,  139  S.  W.  1056,  125  Tenn. 
1. 

1825.  In  a  prosecution  for  keeping  into:ii- 
cating  liquor  with  intent  to  sell  the  same 
without  authority,  evidence  is  admissible 
of  a  seizure  of  a  large  quantity  of  "beer" 
in  the  possession  of  accused,  together  with 
quantities  of  whisky  and  porter,  as  tending 
to  show  the  keeping  of  a  stock  of  liquors 
with  intent  to  sell  them.  State  v.  Barr,  48: 
302,  77  Atl.  914,  84  Vt.  38.         (Annotated) 

3 820.  Upon  the  question  of  keeping  intoxi- 
cating liquors  with  intent  to  sell  them  with- 


EVIDENCE,  XI.  j. 


12C7 


cut  authority,  evidence  is  admissible  that  a 
truckman  from  time  to  time  carted  away 
from  Uie  premises  of  accused,  barrels  sim- 
ilar to  those  seized  at  the  time  of  search- 
ing the  premises,  with  such  liquors  in  them. 
State  V.  Barr,  48:  302,  77  Atl.  U14,  84  Vt.  38. 

1827.  Evidence  that  witnesses  became  in- 
toxicated by  drinking  a  beverage  of  the 
same  name  as  that  for  the  sale  of  which 
one  is  being  tried  is  not  admissible  against 
him,  if  there  is  notliing  to  show  that  the 
constituents  of  the  beverage  sold  and  that 
which  intoxicated  are  the  same.  Gourley 
V.  Com.  48:  315,  131  S.  VV.  34,  140  Ky.  221. 

1828.  Evidence  of  pregnancy  is  properly  ad- 
mitted in  a  prosecution  for  statutory  rape. 
State  V.  Kelly,  43:  476,  150  S.  W.  1057,  245 
Mo.  489. 

1829.  Upon  trial  of  one  for  murder,  evi- 
dence is  admissible  that,  just  prior  to  the 
killing,  he  tried  to  show  an  important  wit- 
ness that  it  would  be  for  her  interest  to 
sa}'  notliing  against  him.  Com.  v.  Snell, 
3:  loig,  75  "N.  E.  75,  189  Mass.  12. 

1830.  Upon  trial  of  one  for  homicide  in 
killing  the  husband  of  a  woman  with  whom 
he  was  found  in  company  after  dark,  under 
a  tree,  at  which  place  the  homicide  oc- 
curred, beer  bottles  found  there  at  the  time 
are  admissible  in  evidence.  State  v.  Lar- 
kin,  46:13,  157  S.  W.  600,  250  Mo.  218. 

1831.  In  a  trial  for  murder,  a  justice  of 
the  peace  may  properly  testify  that  before 
the  homicide  the  accused  asked  him  if  the 
woman  subsequently  killed  had  called  upon 
him  to  consult  upon  the  conduct  of  the  ac- 
cused toward  her,  as  tending  to  show  trou- 
ble or  hostile  feeling  between  the  parties. 
State  V.  Dickerson,  13:  341,  82  N.  E.  969,  77 
Ohio  St.  34. 

1832.  Upon  trial  of  one  for  murder  of  a 
boarder  at  a  hotel,  evidence  is  admissible 
of  a  proposition  by  accused  to  kill  its  keep- 
er by  means  similar  to  those  used  in  case 
of  decedent,  for  the  purpose  of  getting  con- 
trol of  the  place,  when  it  also  appears  that 
accused  thought  decedent  stood  in  the  way 
of  the  accomplishment  of  his  purpose.  Com. 
V.  Snell,  3:  1019,  75  N.  E.  75,  189  Mass.  12. 

1833.  Upon  a  trial  for  murder,  evidence  is 
admissible  of  the  finding  of  a  ring  which 
belonged  to  deceased,  several  weeks  after 
the  commission  of  the  crime,  in  a  piece  of 
tin  foil  which  was  found  in  a  sack  of  po- 
tatoes belonging  to  accused  shortly  after 
the  crime  was  committed,  but  which  was  not 
examined  until  the  time  of  the  finding  of 
the  ring.  State  v.  Barnes,  7:  181,  85  Pac. 
998,  47   Or.   592. 

1834.  Testimony  of  a  druggist  that  one 
accused  of  homicide  by  poison  had  re- 
quested that  a  prescription  for  ergot  and 
other  drugs  presented  by  and  filled  for  him 
should  be  kept  from  the  prescription  files 
kept  in  the  drug  store,  is  admissible  with 
the  prescription,  in  connection  with  evi- 
dence that  a  preparation  the  smell  of  which 
was  the  same  as  a  preparation  prepared 
during  the  trial,  consisting  of  the  drugs 
called  for  in  the  prescription  had  been  ad- 
ministered to  the  deceased  in  the  two  days 
Digest  1-52  L.R.A.(N.S.) 


preceding   her   death.      State   v.    Buck,   42: 
854,   127   Pac.   631,  88   Kan.    114. 

1835.  Upon  a  trial  for  murder,  it  is  not 
error  to  admit  in  evidence  the  name  and 
address  on  a  card  found  in  the  pocket  of 
accused,  in  connection  with  a  slip  of  paper 
found  near  the  dead  body,  containing  a 
name  and  address  which  are  alleged  to  have 
been  written  shortly  after  the  crime  was 
cumniitted,  and  which  are  similar  to  that 
on  the  card,  as  tending  to  connect  accused, 
through  an  association  of  ideas,  with  the 
writing  on  the  paper.  Com.  v.  Tucker,  7: 
1056,  76  N.  E.  127,  189  Mass.  457. 

—  Flight  or  refusal  to  flee. 

1836.  Forfeiting  the  bond  and  fleeing  from 
the  county  after  arrest  for  seduction  may 
be  considered,  in  corroboration  of  the  testi- 
mony of  the  victim,  to  support  a  conviction. 
Thorp  V.  State,  29:  421,  129  S.  W.  607,  59 
Tex.  Crim.  Rep.  517. 

1837.  Evidence  that  one  on  trial  for  crime 
refused  to  embrace  an  opportunity  to  escape 
from  prison  is  not  admissible  in  his  favor, 
although  the  state  has  proved  his  flight  im- 
mediately after  the  crime  was  committed, 
where  the  two  occurrences  are  entirely  dis- 
tinct and  independent.  Bailey  v.  State, 
20:  409,    48    So.    227,    94    Miss.    863. 

(Annotated) 

—  Change  in  financial  condition. 

1838.  On  the  trial  of  one  charged  with 
forgery,  it  is  competent  for  the  state  to 
prove  tkat  for  some  time  immediately  pre- 
ceding the  date  when  the  check  alleged  to 
have  been  forged  was  cashed  the  defend- 
ant was  without  means  and  in  need  of 
money,  and  that  immediately  thereafter  he 
was  seen  with  a  considerable  sum  of  mon  y, 
and  presented  a  $10  bill  to  a  witness  in  pay- 
ment of  a  debt.  Walker  v.  State,  8:  1175, 
56  S.  E.  113,  127  Ga.  48. 

1839.  For  the  purpose  of  connecting  one 
accused  of  murder  with  money  taken  from 
the  possession  of  the  victim,  evidence  is  ad- 
missible that,  before  the  crime,  accused  was 
short  of  money,  pawning  his  belongings,  and 
that,  after  the  crime,  he  had  money,  as 
well  as  his  statements  as  to  his  lack  of 
money,  his  losses,  and  his  financial  transac- 
tions before  and  after  the  crime;  and  the 
fact  that  it  has  not  been  shown  as  yet  that 
money  had  been  taken  from  the  possession 
of  the  victim  is  immaterial.  Cora.  v.  Tuck- 
er, 7:  1056,  76  N.  E.  127,  189  Mass.  457. 

J.  Circumstances. 

(See   also   same   heading   in   Digest   L.R.A. 

1-yo.) 

SuflEiciency   of    circumstantial   evidence,   see 
infra,  2206,  2348-2351. 

1840.  Upon  the  question  of  usury  in  a 
loan,  evidence  of  the  agent  of  the  borrower, 
who  secured  the  loan,  as  to  the  transactions 
attending  it,  is  admissible.  Brown  v.  John- 
son, 46:1157,  134  Pac.  590,  43  Utah,  1. 

1841.  Circumstantial  evidence  is  admissible 
upon  the  question  whetlier  or  not  fire  set 
out  by  a  railroad  company  caused  the  loss 


1208 


EVIDENCE,  XI.  k. 


of  property  burned  when  some  distance 
away  from  the  origin  of  the  fire,  when 
numerous  fires  were  running  through  the 
section  of  tlie  state  where  the  property  was 
located  and  the  dryness  of  vegetation  facil- 
itated the  spread  of  fire.  Miller  v.  North- 
ern P.  R.  Co.  48:  700,  135  Pac.  845,  24 
Idaho,  567. 

1842.  In  determining  whether  a  license  fee 
of  $200  per  annum  for  a  permanent  mov- 
ing picture  show  is  unreasonable,  evidence 
may  properly  be  received  as  to  the  char- 
acter and  number  of  the  inhabitants  of  the 
village,  its  situation,  the  general  character 
of  exhibitions  of  the  kind  in  question  in 
similar  villages,  the  crowds  attracted,  and 
the  need  of  police  surveillance;  but  it  is 
error  to  receive  evidence  of  the  kind  of 
exhibitions  carried  on  by  one  such  show  and 
to  consider  the  good  quality  thereof  as  con- 
trolling on  the  question  of  the  reasonable- 
ness of  this,  a  general  ordinance,  fixing  a 
license  fee  for  all  who  might  conduct  mov- 
ing picture  shows  in  the  village.  Higgins 
V.  Lacroix,  41:737,  137  N.  W.  417,  M9 
Minn.  145. 

Criminal  cases. 

1843.  Evidence  of  circumstances  tending  to 
connect  the  accused  with  the  commission  of 
the  alleged  crime,  even  though  inconclusive, 
is  properly  admitted.  Pittman  v.  State, 
8:  509,  41  So.  385,  51  Fla.  94. 

1 844.  The  attempt  of  one  awaiting  trial  to 
escape  from  jail  is  a  circumstance  which 
may  be  considered  on  the  question  of  his 
guilt.  State  v.  Barnes,  7:  181,  85  Pac.  998, 
47   Or.  592. 

k.  Similar  acts  or  facts. 

(See  also   same   heading   in  Digest  L.R.A. 
1-10.) 

Intercourse  with  others,  of  prosecutrix  for 
rape,  see  Appeal  and  Error,  1267. 

1845.  Upon  an  issue  of  the  right  to  a  di- 
vorce for  a  specified  act  of  adultery,  evi- 
dence is  immaterial  as  to  other  acts  of  a 
similar  nature.  People  v.  Teal,  25:  120,  89 
N.  E.  1086,  196  N.  Y.  372. 

1846.  For  the  purpose  of  showing  discrim- 
inating freight  rates  for  a  haul  of  a  certain 
distance,  it  is  not  necessary  to  confine  the 
evidence  to  shipments  to  the  same  terminal. 
Hilton  Lumber  Co.  v.  Atlantic  Coast  Line 
R.  Co.  6:  225,  53  S.  E.  823,  141  N.  C.  171. 

1847.  Upon  the  question  of  liability  of  a 
property  owner  for  lumber  used  by  his  ten- 
ant in  making  improvements  on  the  prop- 
erty, evidence  is  admissible  that  the  tenant 
purchased  lumber  for  such  improvements 
from  other  dealers  on  his  own  account. 
Walter  v.  Sperry,  44:  28,  85  Atl.  739,  86 
Conn.  474, 

1848.  Evidence  of  observations  as  to  the 
washing  of  decks  in  respect  to  leaving  them 
in  a  slippery  condition,  which  one  injured 
by  falling  upon  a  steamer  deck  had  made  on 
other  voyages,  is  not  admissible  upon  the 
question  of  negligence  in  respect  to  the  one 
on  which  she  fell.  Pratt  v.  North  German 
Digest  1-52  ]:i.R.A.(N.S.) 


Lloyd  S.   S.  Co.   33:  532,  184  Fed.  303,   108 
C.  C.  A.  445. 

1849.  In  an  action  against  members  of  a 
combination  in  restraint  of  trade  having  for 
its  object  the  driving  out  of  business  of 
aggressive  cutters  of  prices,  evidence  is  not 
admissible  of  other  measures  adopted  by  on- 
ly part  of  the  members  of  the  former  com- 
bination, which  are  separate  and  distinct 
from  it,  unless  they  are  shown  to  have  been 
agreed  to  by  all  the  defendants.  Jayne  v. 
Loder,  7:  984,  149  Fed.  21,  78  (J.  C.  A.  653. 

1850.  The  acts  of  an  oOlcer  during  a  previ- 
ous term,  though  not  grounds  for  impeach- 
ment, may  be  considered  in  so  far  as  they 
are  connected  with  or  bear  upon  his  gen- 
eral course  of  conduct  during  his  present 
term,  for  the  limited  purpose  of  inquiring 
into  his  motive  and  intent  as  to  the  acts 
and  omissions  charged  to  him  during  his 
second  term.  State  ex  rel.  Brickell  v, 
Hasty,  50:  553,  63  So.  559,  184  Ala.  121. 
Liibel   and   slander. 

1851.  In  an  action  for  the  publication  of  a 
libel  consisting,  in  part,  of  coupling  plain- 
tiff with  another  person  named,  an  article 
is  admissible  in  evidence  relating  entirely 
to  such  other  person,  but  which  places  him- 
in  such  light  that  associating  plaintift's 
name  with  his  might  be  libelous.  Meri- 
wether v.  George  Knapp  &  Co.  16:  953,  109 
S.  W.  750,  211  Mo.  199. 

Other  assaults. 
See  also  infra,  1893. 

1852.  In  an  action  to  recover  damages  for 
personal  injuries  alleged  to  have  been  sus- 
tained by  reason  of  an  assault  and  battery 
by  the  defendant  upon  the  plaintiff,  it  was 
not  error  for  the  court  to  admit  evidence 
of  the  intoxication  of  the  defendant  at  the 
time  of  the  assault,  and  that  he  had  as- 
saulted another  person  shortly  before  he 
committed  the  battery  upon  the  plaintiff, 
and  also  had  assaulted  another  person  short- 
ly thereafter.  Harshbarger  v.  Murphy, 
44:  1 173,  125  Pac.  180,  22  Idaho,  261. 

( Annotated ) 
Other  accidents. 
See  also  supra,  1267. 

1853.  Evidence  that  others  had  stumbled 
over  an  obstruction  upon  which  a  person  had 
caught  his  foot  is  inadmissible,  either  on  the 
question  of  negligence,  or  to  establish  as  a 
substantive  fact  that  the  obstruction  was 
of  such  a  character  that  a  man's  foot  would 
strike  against  it.  Diamond  Rubber  Co.  v. 
Harryman,  15:  775,  92  Pac.  922,  41  Colo.  415. 

1854.  In  an  action  for  injury  to  a  pedes- 
trian by  the  sinking  of  a  sidewalk,  against 
a  contractor  for  public  work  who  had,  in 
the  execution  of  his  contract,  taken  it  up 
and  relaid  it,  evidence  is  admissible  of  a 
previous  cave-in,  as  tending  to  show  the  na- 
ture of  the  soil  and  the  degree  of  care  re- 
quired of  defendant  in  refilling  the  excava- 
tion made  by  him.  Rockwell  v.  McGovern, 
23  :  1022,  88  N.  E.  436,  202  Mass.  6. 

1855.  In  an  action  to  hold  a  town  liable 
for  injury  on  a  highway  because  of  an  al- 
leged defect,  evidence  is  not  admissible  of 
another  accident  noir  the  place  of  an  en- 


EVIDENCE,  XI.  k. 


1269 


tirely  different  nature,  to  which  the  alleged 
defect  could  in  no  way  have  contributed. 
Flansburg  v.  Elbridge,  41:  546,  98  N.  E. 
750,  205  N.  Y.  423. 

1856.  Evidence  that  thirteen  days  before 
and  three  days  after  a  wagon  wheel  had 
caught  in  a  street  car  switch,  to  the  injury 
of  the  driver,  similar  accidents  have  hap- 
pened to  others,  is  admissible  in  corrobora- 
tion of  evidence  tiiat  a  defective  condition 
existed  at  the  time  of  the  injury  complained 

.  of.  Alcott  V.  Public  Service  Corp.  (N.  J. 
Err.  &  App.)  32:  1084,  74  Atl.  499,  78  N.  J. 
L.  482.  (Annotated) 

1857.  Evidence  that  thirteen  days  before  a 
wagon  wheel  had  caught  in  a  street  car 
switch,  to  the  injury  of  the  driver,  a  similar 
accident  had  happened,  is  admissible,  where 
the  evidence  shows  that  a  defective  condi- 
tion existed  at  the  time  of  the  accident  com- 
plained of,  as  tending  to  show  the  existence 
of  the  defective  condition  for  such  a  length 
of  time  that  defendant  with  due  diligence 
should  have  discovered  and  rectilied  it. 
Alcott  V.  Public  Service  Corp.  (N.  J.  Err. 
&  App.)  32:  1084,  74  Atl.  499,  78  N.  J.  L. 
482. 

1858.  To  show  the  dangerous  character  of 
a  machine  and  the  owner's  knowledge  there- 
of, in  an  action  to  recover  damages,  for  in- 
juries to  a  child  from  its  use,  evidence  is 
admissible  of  accidents  to  other  children 
under  like  circumstances.  Leathers  v. 
Blackwell's  Durham  Tobacco  Co.  9:  349,  57 
S.  E.  11,  144  N.  C.  330. 

1859.  Upon  the  question  whether  or  not 
an  employer  is  charged  with  knowledge  that 
movements  by  machine  tenders  tend  to  be- 
come automatic  so  as  to  render  them  liable 
to  injury,  evidence  is  admissible  that  such 
accidents  have  frequently  occurred  in  his 
establishment.  Kaczmarek  v.  Geuder,  P.  & 
F.  Co.  44:779,  134  N.  W.  348,  148  Wis.  46. 
—  Other  fires. 

1860.  In  an  action  to  hold  a  railroad  com- 
pany liable  for  loss  of  property  through 
fire  set  out  by  its  locomotive,  evidence  is 
admissible  that,  at  times  other  than  that 
at  which  the  loss  occurred,  sparks  and  cin- 
ders had  escaped  from  defendant's  locomo- 
tives and  set  fire  to  logs  and  grass  along 
the  right  of  way.  '  Illinois  C.  R.  Co.  v.  Hick- 
lin,  23:  870,  115  S.  W.  752,  131  Ky.  624. 

1861.  Where  evidence  introduced  shows 
that  the  particular  engine  which  is  identified 
as  having  set  a  fire  for  the  loss  occasioned 
by  which  damages  are  sought  is  no  better 
than  any  of  defendant's  other  engines,  evi- 
dence of  the  setting  of  other  fires  a  short 
time  previous  to  the  destruction  of  plaintiff's 
property  is  admissible,  since,  under  such  con- 
ditions and  circumstances,  the  reasonable 
inference  of  fact  would  be  that  the  identified 
engine  would  be  as  likely  to  throw  igniting 
sparks  and  live  coals  and  set  the  fire  as  was 
any  of  the  other  of  the  company's  engines 
that  are  shown  to  have  emitted  sparks  and 
fire  about  the  same  time.  Osburn  v.  Oregon 
R.  &  Nav.  Co.  19:  742,  98  Pac.  627,  15  Idaho, 
478. 

1862.  Evidence  that  other  fires  had  been 
seen  along  the  right  of  way  of  a  railroad 
Digest   1-52  Ii.R.A.(N.S.) 


company  is  not  admissible  in  an  action 
against  it  for  negligently  setting  fire  to 
neighboring  property,  where  there  is  nothing 
to  show  how  any  of  them  originated,  or  that 
thb  railroad  company  was  responsible  for 
them.  Hawley  v.  Sumpter  Valley  R.  Co. 
12:  526,  90  Pac.  1106,  49  Or.  509. 
—  Other  frightening  of  horses. 

1863.  For  the  purpose  of  showing  that  a 
steam  shovel  located  near  a  highway  was 
reasonably  calculated  to  frighten  horses  or- 
dinarily safe  and  gentle  for  road  purposes, 
evidence  is  admissible  that  such  horses  were 
in  fact  frightened  by  it  at  or  about  the 
time  of  the  fright  of  the  horse  for  injuries 
caused  by  which  the  action  is  brought 
against  the  owner  of  the  shovel.  Heinmil- 
ler  V.  Winston,  6:  150,  107  N.  W.  1102,  131 
Iowa,  32. 

1864.  In  an  action  for  damages  caused  by 
frightening  horses  on  a  public  bridge  by  the 
blast  of  a  nearby  municipal  waterworks 
whistle,  evidence  that  tractable  and  gentle 
horses  had  often  been  frightened  previously 
by  blasts  of  the  same  whistle  under  similar 
circumstances,  was  competent  as  tending  to 
show  that  the  blasts  were  of  "a  character 
likely  to  frighten  horses  under  such  circum- 
stances, that  their  fright  and  fiight  were 
natural  and  probable  consequences  of  the 
blowing  of  the  blast,  and  that  these  facts 
were  so  notorious  that  they  might  be  con- 
sidered by  the  jury  to  constitute  notice  to 
the  city  of  the  dangerous  character  and  prob- 
able effect  of  the  blowing  thereof.  Winona 
V.  Botzet,  23:  204,  169  Fed.  321,  94  C.  C.  A. 
563. 

Other   acts    of    carrier's    employees    or 
agents. 

1865.  Upon  the  question  whether  or  not  the 
rule  of  a  railroad  company  requiring  the 
stopping  of  trains  when  signal  lights  were 
out  had  been  abrogated  by  habitual  viola- 
tion with  knowledge  of  the  company,  evi- 
dence is  admissible  to  show  a  number  of 
violations  during  such  a  space  of  time  and 
under  such  circumstances,  known  to  the 
company's  officers  and  agents,  as  to  sub- 
stitute the  practice  for  the  rule.  Haynes 
V.  North  Carolina  R.  Co.  9:  972,  55  S.  E. 
516,  143  N.  C.  154. 

1866.  Upon  the  question  of  the  liability  of 
a  railroad  company  for  an  assualt  upon  a 
colored  passenger,  because  of  the  conduct- 
or's failure  to  obey  the  statutorj-  require- 
ment to  remove  a  white  man  from  the  col- 
ored compartment  of  a  train,  evidence  is  not 
admissible  of  his  failure  to  remove  other 
white  persons  therefrom,  of  his  failure  to 
station  a  guard  to  prevent  white  passen- 
gers from  entering  the  compartment,  or  of 
the  manner  in  which  white  passengers  were 
behaving  in  their  own  compartment.  Louis- 
ville &  N.  R.  Co.  V.  Renfro,  33:  i33»  135 
S.  W.  266,  142  Ky.  492. 

1867.  Evidence  that  the  defendant's  con- 
ductor had  previously  knocked  passengers 
down,  and  that  the  company  had  been  sued 
for  his  acts,  is  not  admissible  in  an  action 
for  damages  from  the  ejection  of  a  person 
at  the  conductor's  direction,  where  a  com- 
mon  carrier  is  liable   for   the  wanton   and 


1210 


EVIDENCE,  XI.  k. 


malicious  acts  of  its  servants  done  in  the 
course  of  tlieir  employment,  irrespective 
of  its  knowledge  of  their  character.  Louis- 
ville &  N.  R.  Co.  V.  Cottengim,  13:  624,  104 
S.   W.  280,  31   Ky.  L.  Rep.   871. 

18G8.  In  an  action  by  a  licensed  drayman 
against  a  railroad  company  to  recover  dam- 
ages for  alleged  injury  to  his  business,  aris- 
ing from  the  malicious  acts  of  the  company's 
agent,  evidence  as  to  the  conduct  of  the  lat- 
ter when  acting  as  agent  for  an  express 
company,  in  reference  to  packages  which  the 
plaintiii'  had  authority  to  receive,  is  irrele- 
vant and  inadmissible.  Southern  R.  Co. 
v.  Chambers,  7:  926,  55  S.  E.  37,  126  Ga.  404. 
Condition  at  other  times. 
Review    of   discretionary    ruling   as   to,   see 

Appeal  and  Error,  607. 
Failure  to  show  continuance  of  conditions, 

see  Appeal  and  Error,  1101. 

1869.  The  defective  -condition  of  a  coal 
hole  in  a  sidewalk  at  the  time  of  the  exe- 
cution of  a  lease  may  be  shown  by  evi- 
dence that  it  was  defective  prior  to  the 
time  of  its  execution  and  continued  so  sub- 
sequent to  that  time.  Hill  v.  Hayes,  18: 
375,  85  N.  E.  434,  199  Mass.  411. 

1870.  Upon  the  question  of  liability  of  a 
property  owner  for  injuries  caused  to  a 
passer-by  from  a  coal  hole  defective  at  the 
time  the  premises  were  leased,  evidence  is 
admissible  describing  the  hole  at  various 
times  as  bearing  upon  its  condition  at  the 
time  of  the  lease,  and  also  as  identifying 
the  defect  existing  at  the  time  of  the  acci- 
dent with  that  existing  when  the  property 
was  leased.  Hill  v.  Hayes,  18:  375,  85  N.  E. 
434,  199  Mass.  411. 

1871.  In  an  action  by  county  commis- 
sioners to  hold  a  railroad  company  liable 
for  damages  which  they  had  been  compelled 
to  pay  because  of  a  defect  in  a  highway 
due  to  a  change  made  by  the  company,  evi- 
dence is  admissible  as  to  the  condition  of 
the  road  before  the  changes  were  made 
and  the  character  of  the  changes.  Balti- 
more &  0.  R.  Co.  V.  Howard  County  Comrs. 
40:  1172,  73  Atl.  656,  111  Md.   176. 

1872.  Witnesses  who  examined  a  building 
five  months  after  a  bracket  fell  therefrom 
should  be  allowed  to  testify  aa  to  how  it 
had  been  attached  to  the  building,  if  there 
is  evidence  to  show  that  no  change  had  been 
made  in  the  building  between  the  time  of  the 
fall  and  that  of  the  examination.  Joyce 
V.  Black,  27:  863,  75  Atl.  602,  226  Pa.  408. 

1873.  Evidence  of  an  examination  of  the 
foundation  of  a  bridge  which  gave  way, 
made  five  months  after  the  accident,  when 
conditions  had  so  far  changed  that  it  could 
not  be  relied  on  as  proof  of  the  conditions 
existing  before  the  bridge  fell,  is  not  ad- 
missible upon  the  question  of  negligence  in 
the  construction  or  maintenance  of  the 
bridge.  Johns  v.  Pennsylvania  R.  Co.  28: 
591,  75  Atl.  408,  226  Pa.  319. 

1874.  The  fact  that  the  space  between  a 
main  and  repair  track  of  a  railroad  company 
is  at  times  obstructed  so  that  it  cannot  be 
used  by  conductors  in  checking  their  trains 
is  not  admissible  to  show  that  it  Mas  ob- 
structed at  the  time  a  particular  conductor 
Digest  1-52  I^R.A.(N.S.) 


was  injured  while  attempting  to  use  the 
main  track  for  that  purpose.  Neary  v. 
Northern  P.  R.  Co.  19:  446,  97  Pac.  944,  37 
Mont.  461. 

1875.  Upon  the  question  of  the  negligence 
of  a  street  car  company  in  permitting  peo- 
ple to  crowd  into  a  car  at  a  terminal,  to 
the  injury  of  a  passenger  seeking  to  alight, 
evidence  is  admissible  of  the  condition  and 
character  of  the  crowds  which  had  been  at 
that  terminal  on  similar  days  and  at  simi- 
lar times  on  previous  years.  Gleiinen  v.  . 
Boston  Elevated  R.  Co.  32:  470,  93  N.  E. 
700,  207  Mass.  497. 

1876.  Testimony  to  the  effect  that  a  gviy 
wire  and  service  wire  were  in  contact  two 
or  three  days  after  an  accident  is  admissible 
on  the  question  whether  they  were  in  con- 
tact at  the  time  of  the  accident,  where  there 
is  testimony  by  another  witness  that  at 
the  time  of  the  accident  he  noticed  that 
the  guy  wire  and  the  service  wire  seemed 
to  be  in  contact,  and  there  was  no  evidence 
of  any  change  in  the  condition  in  the  mean- 
time. Snyder  v.  Mutual  Teleph.  Co.  14:  321, 
112  N.  W.  776,  135  Iowa,  215. 

1877.  In  an  action  for  the  death  of  a  tele- 
phone lineman,  caused  by  a  wire  which  was 
being  raised  to  him  coming  in  contact  with 
a  heavily  charged  wire  of  the  defendant 
electric  company,  which  was  strung  upon 
the  telephone  company's  poles,  evidence  con- 
cerning the  condition  of  the  insulation  of 
defendant's  wire  the  morning  after  the  ac- 
cident is  admissible.  Musolf  v.  Dulutli  I^d- 
ison  Electric  Co.  24:  451,  122  N.  W.  499,  108 
Minn.  369. 

1878.  Upon  the  question  of  the  condition 
of  a  passenger  ejected  from  a  street  car,  evi- 
dence of  his  condition  when  he  boards  an- 
other car  immediately  afterward  may  be  ad- 
mitted. Thayer  v.  Old  Colony  Street  R. 
Co.  44:  1 125,  101  N.  E.  368,  214  Mass.  234, 

1879.  Evidence  is  admissible,  upon  a  prose- 
cution for  violation  of  an  ordinance  pro- 
hibiting water  mains  in  the  street  to  be 
left  in  a  leaky  condition,  showing  the  con- 
dition of  the  street  prior  to  the  time  of 
the  institution  of  the  proceedings.  Grump- 
ier v.  Vicksburg,  11:476,  42  So.  673,  89 
Miss.  214. 

Condition  at  other  places. 

1880.  How  other  neighboring  property  was 
affected  by  the  maintenance  of  a  nuisance 
cannot  be  shown  in  an  action  to  recover  for 
injury  to  a  particular  tract.  Louisville  & 
N.  Terminal  Co.  v.  Lellyett,  i:  49,  85  S.  W. 
881,  114  Tenn.  368. 

1881.  Upon  the  question  of  injury  to  prop- 
erty by  the  maintenance  of  a  nuisance  upon 
it,  evidence  is  admissible  to  show  that  it 
is  injuriously  or  prejudicially  aflected  by 
similar  causes  from  other  sources,  but  not 
the  effect  thereof  on  other  property  nea» 
or  contiguous  to  it.  Louisville  &  N.  Ter- 
minal Co.  V.  Lellyett,  i:  49,  85  S.  W.  881 
114  Tenn.  368. 

1882.  Upon  the  question  of  nuisance  to  ad- 
joining property  in  the  maintenance  and 
operation  of  a  railroad  terminal,  no  com- 
parison is  proper  between  the  noise  in  its 
vicinity  and  in  other  portions  of  the  city; 


EVIDENCE,  XL  k. 


121 1 


nor  is  evidence  admissible  that  the  city  is  i 
generally  a  dirty,  smoky,  and   noisy   place. 
Louisville   &    N.   Terminal    Co.    v.    Lellyett, 
i:  49,  85  S.  W.  88L  114  Tenn.  368. 
Fraud. 

1883.  In  an  action  for  fraud  in  the  sale  of  a 
mine,  evidence  is  admissible  of  an  attempt 
to  defraud  another  person  into  purchasing 
it.  Tooker  v.  Alston,  i6:  8i8,  159  Fed.  599, 
86  C.  C.  A.  425. 

1S84.  Upon  trial  of  a  prosecution  for  giv- 
ing a  check  in  payment  of  goods  with  knowl- 
edge of  absence  of  funds  or  credit  to  meet  it, 
with  intent  to  defraud,  evidence  is  admis- 
sible of  similar  transactions  on  the  same 
or  previous  day  as  tending  to  show  defend- 
ant's knowledge  of  the  state  of  his  account, 
as  well  as  guilty  knowledge  and  intent  to 
deceive.  People  v.  Bercovitz,  43:  667,  126 
Pac.  479,  163  Cal.  636.  (Annotated) 

1885.  Upon  the  question  of  fraud  in  secur- 
ing an  indorsement  upon  a  note  by  means  of 
a  trick,  evidence  is  admissible  that  the  same 
trick  was  employed  by  the  same  persons, 
to  secure  the  signatures  of  other  persons, 
the  effect  of  which  is  to  show  a  general 
scheme  to  perpetrate  this  particular  fraud 
upon  the  people  of  the  neighborhood  at  the 
same  time,  to  effect  a  common  purpose.  Ya- 
kima Valley  Bank  v.  McAllister,  i:  1075,  79 
Pac.  1119,  37  Wash.  566. 

1886.  Evidence  of  prior  and  subsequent 
transactions  in  which  a  bank  has  aided  a 
gang  of  men  in  fleecing  strangers  by  means 
of  a  fictitious  race,  through  its  aid  in  lend- 
ing respectability  to  the  transaction  and  in 
exchanging  and  transfening  noney,  is  ad- 
missible in  an  action  to  recover  from  it 
money  lost  by  a  victim,  as  tending  to  show 
its  knowledge  of  the  methods  and  course  of 
conduct  of  the  gang,  and  also  to  show  the 
frxiudulent  course  of  business,  and  the  bank's 
motive.  Hobbs  v.  Boatright,  5:  906,  93  S. 
W.  934,  195  Mo.  693. 

Other  crimes. 

Prejudicial  error  as  to,  see  Appeal  and  Er- 
ror, 1177,  1199. 

See  also  supra,  1633,  1884;  Indictment, 
ETC.,  49;   Witnesses,  94. 

1887.  Upon  trial  for  crime,  original  evi- 
dence is  not  admissible  against  accused, 
that  he  had  told  witness  that  he  had  been 
previously  charged  with  crime.  Fanin  v. 
State,  10:  744,  100  S.  W.  916,  51  Tex.  Crim. 
Rep.  41. 

1888.  To  overthrow  an  alibi  set  up  by  one 
accused  of  crime,  evidence  is  admissible  that 
he  was  seen  in  the  vicinity  of  the  crime  at 
about  the  time  it  was  committed,  although 
at  the  time  when  seen  he  was  engaged  in 
the  commission  of  other  crimes.  People  v. 
Jennings,  43:  1206,  96  N.  E.  1077,  252  111. 
634. 

1889.  Evidence  that  other  checks  drawn  by 
one  on  trial  for  obtaining  money  on  a  bad 
check  were  not  paid  is  inadmissible  in  the 
absence  of  anything  to  show  that  they  were 
presented  to  the  drawee,  or  that  they  would 
not  have  been  paid  if  presented.  State  v, 
Foxton,  52:  919,   147   N.   W.   347,  —  Iowa, 

Digest   1-52  L.R.A.(N.S.) 


1890.  Upon  trial  of  an  indictment  for  con- 
spiracy to  induce  a  shipper  to  receive-  re- 
bates in  violation  of  the  "lillkins  law,"  evi- 
dence is  admissible  of  similar  dealings-  with 
other  merchants.  Thomas  v.  United  States,. 
17:  720,  156  Fed.  897,  84  C.  C.  A.  477. 

1S91.  Upon  a  prosecution  for  permitting  a 
female  to  remain  in  or  about  a  saloon>  evi- 
dence is  admissible  that  while  she  was  there 
the  defendant  sold  her  beer,  as  tending  to> 
show  that  he  was  engaged  in  the  sale  of  in- 
toxicating liquor,  and  permitted  her  to  re- 
main in  the  saloon.  State  v.  Baker,  13:: 
1040,  92  Pac.  1070,  50  Or.  381. 

1892.  In  prosecuting  a  foreign  corporation' 
for  violations  of  a  state  statute  regulating 
intrastate  commerce,  evidence  as  to  prior 
but  wholly  independent  contracts  and  trans- 
actions between  the  plaintiff  and  defendant 
or  third  parties,  claimed  to  have  been  viola- 
tions of  the  statute,  is  irrelevant.  Sucker 
State  Drill  Co.  v.  Wirtz,  18:  134,  115  N.  W. 
844,  17  N.  D.  313. 

1893.  Upon  trial  of  a  man  for  kiling  his 
brother-in-law  to  prevent  the  latter's  eiD- 
tering  his  home  in  search  of  the  wife  of 
the  brother-in-law,  evidence  is  admissible 
of  assaults  which  the  husband  had  mad«  en. 
the  wife,  and  of  his  threats  to  take  the  life- 
of  both  the  wife  and  the  accused.  Bailey 
V.  People,  45:  145,  130  Pac.  832,  54  Colo.  337. 

1S94.  In  the  prosecution  of  a  parent  for 
manslaughter  for  failure  to  obtain  medical 
aid  for  a  child  of  tender  years,  suffering 
with  frozen  feet,  the  admission  of  evidence 
showing  the  existence  of  bruises,  scars,  and 
marks  on  the  body  of  the  child  is  not  error, 
where  the  jury  were  instructed  that  such 
evidence  should  only  be  considered  in  de- 
termining whether  the  defendant's  atti- 
tude toward  the  child  was  such  as  might 
cause  him  to  be  negligent  in  his  failure 
to  secure  medical  aid  after  he  had  ascer- 
tained the  child's  condition.  Stehr  v.  State, 
45:  559,  139  N.  W.  676,  142  N.  W.  6-70,  &2 
Neb.   755. 

—  Other  false  pretenses. 

1895.  In  a  prosecution  for  obtaining  money 
by  false  pretenses,  evidence  tending  to  prove 
that  the  defendant  made  other  pretenses 
about  the  same  time  of  like  character  to 
those  charged  in  the  information,  is  admis- 
sible when  it  tends  to  prove  identity  or  in- 
tention in  the  issue  on  trial.  State  t.  Het- 
rick,  34:  642,  113  Pac.  383,  84  Kan.  157. 

—  Other  burglaries  or  thefts. 

1896.  In  a  prosecution  of  one  found  com- 
mitting theft  in  a  house  into  which  he  had 
broken,  evidence*  is  not  admissible  of  other 
burglaries  committed  in  the  neighborhood 
the  same  night.  Clark  v.  State,  29:  323^ 
128  S.  W.  131,  59  Tex,  Crim.  Rep.  246. 

1897.  In  a  prosecution  for  larceny  of  a  cow 
which  was  loaded  on  a  car  for  transporta- 
tion, evidence  is  admissible  that  a  number 
of  cattle  belonging  to  other  persons,  with 
different  brands,  were  loaded  at  the  same 
time,  where  all  cattle  were  gathered  from 
the  range  and  driven  in  for  transportation 
as  part  of  one  transaction,  and  th£  defense 
claims     that    the    particular    animal    was 


1212 


EVIDENCE,  XI.  k. 


brought  in  by  mistake.    State  v.  Gillies,  43: 
776,  123  Pac.  93,  40  Utah,  541. 

( Annotated ) 

1898.  Tlie  state  may,  in  a  prosecution  for 
embezzlement  in  taking  money  from  the 
employer's  cash  drawer,  give  evidence  of 
failure  to  credit  on  the  books  money  re- 
ceived from  customers  at  times  other  than 
those  when  the  offense  charged  was  com- 
mitted, for  the  purpose  of  showing  a  sys- 
tem or  scheme  for  procuring  the  employer's 
money.  State  v.  Downer,  43:  774,  123  Pac. 
1073,  68  Wash.  672.  (Annotated) 

1899.  Upon  trial  of  a  prosecution  for  re- 
ceiving stolen  goods,  evidence  is  admissible 
that  accused  had  previously  purchased  stol- 
en property  from  the  one  from  whom  he  is 
charged  with  having  received  the  property 
in  the  case  on  trial.  State  v.  Rountree, 
22:  833,  61  S.  E.  1072,  80  S.  C.  387. 

—  Other  svrindlers. 
See  also  supra,  1889. 

1900.  Upon  a  trial  for  larceny  through 
conspiracy  to  secure  money  from  a  certain 
person  by  fraud,  evidence  is  admissible  that 
the  same  persons  swindled  another  person 
by  similar  means,  for  the  purpose  of  show- 
ing the  scope  and  purpose  of  the  conspir- 
acy, if  one  is  found  to  exist,  although  ac- 
cused is  not  shown  to  have  been  connected 
with  the  conspiracy  until  a  date  later  than 
that  to  which  the  evidence  relates.  State 
V.  Dobbins,  42:  735,  132  N.  W.  805,  152 
Iowa,  632. 

—  Other  forgeries. 

1901.  The  fact  that  one  on  trial  for  for- 
gery is  under  indictment  for  the  forgery  of 
other  instruments  does  not  aflfect  their  ad- 
missibility in  evidence  in  the  pending  trial. 
Pittman  v.  State,  8 :  509,  41  So.  385,  61  Fla. 
94. 

1902.  In  a  prosecution  for  forgery,  it  is 
competent  to  show  that,  about  the  time  of 
the  alleged  forging  and  uttering  by  defend- 
ant, other  similar  instruments  had  been 
forged  or  uttered  by  him,  in  pursuance  of 
a  general  scheme  to  defraud.  Pittman  v. 
State,  8:  509,  41  So.  385,  51  Fla.  94. 

1903.  Upon  the  trial  of  an  employee  on  the 
charge  of  uttering  a  note  payable  to  his 
employer,  which  lie  had  forged  for  the  pur- 
pose of  covering  up  a  shortage,  evidence  that 
he  had  forged  other  notes  for  the  same  pur- 
pose is  competent.  State  v.  Chance,  27: 
1003,  108  Pac.  789,  82  Kan.  388. 

1904.  Proof  of  similar  offenses  by  one  on 
trial  for  forgery  is  admissible  only  as  bear- 
ing on  the  question  of  intent,  although  the 
accused  admits  that  he  signed  to  the  instru- 
ment in  question  the  name  of  the  person 
whose  name  is  claimed  to  have  been  forged, 
and  uttered  the  instrument,  knowing  that  he 
had  done  so,  and  even  though  the  jury,  with- 
out proof  of  such  similar  offenses,  would  be 
justified  in  finding  a  fraudulent  intent  on  the 
part  of  the  accused  if  he  was  not  authorized 
to  sign  the  name  of  such  person  to  the  in- 
strument. State  V.  Murphy,  17:  609,  115 
N.  W.  84,  17  N.  D.  48. 

—  Other   false    certifications. 

1905.  Upon  trial  of  a  commissioner  of 
deeds  for  forgery  in  wilfully  certifying  false- 
Digest  1-52  L.R.A.(N.S.) 


ly  to  an  acknowledgment  of  a  mortgage,  evi^- 
dence  is  admissible  of  other  similar  false- 
certifications  of  mortgages  by  mythical  per- 
sons, for  the  purpose  of  showing  that  the 
offense  charged  was  part  of  a  scheme  to- 
defraud  one  who  had  placed  money  in  his 
hands  for  investment,  which  he  embezzled, 
and  for  which  he  gave  his  client  fictitious 
mortgages  as  pretended  securities,  and  there- 
by establishing  intention.  People  v.  Marrin, 
43:  754,  98  N.  E.  474,  205  N.  Y.  275. 

(Annotated) 

—  Other   sexual   offenses. 

1906.  Upon  a  trial  for  statutory  rape,  evi- 
dence is  not  admissible  of  a  rape  committed 
by  accused  upon  a  companion  of  the  prose- 
cuting witness  immediately  after  the  offense 
for  which  he  is  on  trial,  both  girls  having 
been  called  into  the  ollice  of  accused  at  the 
same  time,  and  the  two  crimes  being  com- 
mitted while  both  were  present.  People  v. 
Gibson,  48:  236,  99  N.  E.  599,  255  111.  302. 

( Annotated ) 

1907.  Upon  a  prosecution  for  incest,  evi- 
dence of  other  acts  of  intercourse  between 
the  parties  is  not  admissible.  Skidmore  v. 
State,  26:  466,  123  S.  W.  1129,  57  Tex.  Crim. 
Rep.   497.  (Annotated) 

1908.  Upon  trial  of  a  prosecution  for  in- 
cest in  which  the  state  relies  upon  a  single 
act,  evidence  is  not  admissible  of  conduct 
at  subsequent  times  tending  to  show  a  crim- 
inal intent.  Gross  v.  State,  33:  477,  135  S. 
W.  373,  61  Tex.  Crim.  Rep.  176. 

1909.  Where  by  statute  each  act  of  sexual 
intercourse  between  a  father  and  a  daughter 
is  a  separate  offense,  evidence  of  prior  or 
subsequent  acts  is  not  admissible  in  sup- 
port of  an  indictment  charging  one  specific 
act.     Pridemore  v.  State,  29:  858,  129  S.  W. 

'1112,  59  Tex.  Crim.  Rep.  563. 

1910.  Evidence  of  the  commission  of  simi- 
lar crimes  at  other  times  is  not  admissible 
against  one  on  trial  for  commission  of  a 
crime  against  nature.  State  v.  Start, 
46:  266,  132  Pac.  512,  65  Or.  178. 

(Annotated) 

1911.  Upon  prosecution  for  an  assault 
with  attempt  to  commit  sodomy,  evidence  is 
admissible  of  an  attempt  by  accused  to  com- 
mit a  similar  act  upon  another  person  pres- 
ent at  the  time,  immediately  after  making 
the  attempt  for  which  he  is  on  trial.  State 
V.  McDowell,  32:  414,  112  Pac.  521,  61  Wash. 
398. 

—  To  shove  intent,  animus,  or  motive. 
See  also  supra,  1908. 

1912.  To  show  intent  of  one  who  obtained 
money  on  a  bad  check,  evidence  is  admis- 
sible of  other  similar  transactions  by  him 
at  about  the  time  the  alleged  offense  was 
committed.  State  v.  Foxton,  52:  919,  147 
N.  W.  347,  —  Iowa,  — . 

1913.  That  one  on  trial  for  obtaining  mon- 
ey by  false  pretenses  had  made  similar  false 
representations  and  pretenses  to  others  is- 
admissible   to    show    his   knowledge   of    the 

i  falsity  of  the  representations  made  to  the 
prosecuting  witness,  and  his  guilty  intent 
in  making  them.  State  v.  Briggs,  7:  278^ 
86  Pac.  447,  74  Kan.  377. 

1914.  To  show  the  animus  probably  exist- 


EVIDENCE,  XI.  1. 


1213 


ang  between  a  murderer  and  his  victim,  evi- 
dence is  admissible  of  quarrels  months  be- 
fore the  homicide.  State  v.  Brooks,  17:  483, 
■60  S.  E.  518,  79  S.  C.  144. 

1915.  While  it  is  not  competent  for  the 
«tate,  in  making  out  its  case  in  chief,  to  in- 
troduce evidence  of  other  and  prior  crimes, 
for  the  purpose  of  supporting  the  charge 
made  in  the  indictment,  or  of  reflecting  on 

.  the  character  of  the  accused,  yet  the  com- 
mission of  a  prior  crime  may  be  shown  for 
the  purpose  of  furnishing  a  motive  for  the 
commission  of  the  crime  charged  in  the  in- 
dictment, provided  such  prior  crime  is  so 
related  to  the  latter  as  to  have  a  logical  con- 
nection therewith,  and  reasonably  to  disclose 
a  motive  for  its  commission.  State  v.  Dick- 
«rson,  13:  341,  82  N.  E.  969,  77  Ohio  St.  34. 

I.  Explanation  and  rebuttal. 

{See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Prejudicial  error  as  to,  see  Appeal  and 
Error,  1105,  1112,  1122. 

As  to  order  of  proof  generally,  see  Trial, 
32-40. 

Admissibility  to  impeach  or  corroborate  wit- 
ness, see  Witnesses,  III. 

See  also  supra,  810. 

1916.  To  meet  evidence  that  defendant  had 
asked  for  figures  for  improvements  made  on 
his  property  according  to  an  exhibited 
sketch,  evidence  is  admissible  that  the 
sketch  was  made  at  the  instance  of  his  ten- 
ant, who  is  claimed  to  have  undertaken  to 
make  the  improvements  at  his  own  expense. 
Walter  v.  Sperry,  44:  28,  85  Atl,  739,  86 
Conn.  474. 

1917.  Upon  garnishee  disclosure,  the  execu- 
tor of  an  estate  may  introduce  testimony 
and  evidence  other  than  his  own,  for  the 
purpose  of  corroboration  and  explanation  by 
developing  facts  additional  to  those  dis- 
closed by  him,  and  for  the  purpose  of  show- 
ing that  money  and  effects  under  his  control 
as  executor  do  not  in  fact  belong  to  the 
judgment  debtor.  Pitzl  v.  Winter,  5:  1009, 
105  N.  W.  673,  96  Minn.  499. 

1918.  Defendant  in  an  action  for  damages 
for  killing  a  person  may  contradict  wit- 
nesses who  testify  as  to  his  first  statement 
to  another  person,  upon  the  latter's  arrival 
upon  the  scene  of  the  homicide,  and  state 
what  the  conversation  was,  and  it  is  im- 
material that  the  witnesses  difi'er  as  to 
where  he  was  located  at  the  time  of  the 
conversation,  if  all  agree  that  the  conversa- 
tion referred  to  by  all  parties  was  the  same. 
Foster  v.  Shepherd,  45:167,  101  N.  E.  411, 
258   111.   164. 

1919.  One  suing  for  slander  in  being 
charged  by  another  with  setting  fire  to  his 
building  cannot  be  permitted  to  testify  that 
he  never  made  threats  to  burn  the  build- 
ing for  the  purpose  of  contradicting  wit- 
nesses who  have  testified  that  they  commu- 
nicated to  defendant,  before  the  fire,  the 
fact  that  they  had  heard  plaintiff  make 
^Digest  1-52  L.RJi..(N.S.) 


such    threats.      Edwards   v.    Kevil,    28:551, 
118   S.    W.   273,   133   Ky.   392. 

1920.  Where  a  witness  in  a  condemnation 
proceeding  testifies  on  behalf  of  the  land- 
owner, that  the  land  sought  to  be  taken  is 
of  a  certain  value,  it  is  not  error  for  the 
witness  to  be  allowed  thereafter  to  explain 
that  he  bases  his  estimate  upon  the  fact 
that  the  land  could  be  subdivided  into  town 
lots,  and  would  for  such  purpose  sell  for 
the  amount  fixed  by  him  as  the  value  of  the 
property.  Idaho  &  W.  R.  Co.  v.  Columbia 
Conference,  38:  497,  119  Pac.  60,  20  Idaho, 
568. 

1921.  The  statutory  presumption  that  real 
estate  which  was  purchased  with  com- 
munity funds,  and  its  title  placed  in  the 
wife,  vvas  intended  as  a  gift  to  her,  may  be 
rebutted  by  the  husband's  evidence  that 
such  was  not  the  intention.  Fulkerson  v. 
Stiles,   26:  181,  105  Pac.   966,   156  Cal.  703. 

1922.  The  presumption  that  checks  given 
by  a  debtor  to  his  creditor  were  in  payment 
of  the  account  may  be  rebutted  by  evidence 
that  the  debtor  acknowledged  the  correct- 
ness of  the  account  without  the  credit  of  the 
checks.  Lewis  v.  England,  2:  401,  82  Pac. 
869,  14  Wyo.  128. 

Insurance. 

Prejudicial  error  as  to,  see  Appeal  and 
Error,  1112. 

1923.  In  an  action  on  a  policy  of  insur- 
ance, where  the  insurer  relies  on  a  condition 
subsequent  incorporated  in  the  policy,  to 
defeat  the  right  of  the  insured  to  recover 
after  loss,  the  plaintiff  has  a  right  to  intro- 
duce evidence  to  rebut  any  proof  of  breach 
of  condition  so  pleaded,  or  to  show  a  waiver 
of  the  condition  by  the  insurer.  Allen  v. 
Phoenix  Assur.  Co.  8:  903,  88  Pac.  245,  12 
Idaho,  653. 

Criminal   cases. 

Impeachment  of  dying  declaration,  see  su- 
pra, 1506,  1507. 

Prejudicial  error  as  to,  see  Appeal  and 
Error,  1122. 

Admissibility  of  evidence  to  impeach  or  con- 
tradict witness,  see  Witnesses,  III. 

See  also  infra,  1987. 

1924.  If  one  accused  of  murder  attempts 
to  show  the  size  and  weight  of  deceased  for 
the  purpose  of  establishing  a  necessity  for 
self-defense,  the  state  may  show  his  state 
of  health  and  physical  condition  at  the  time 
of  the  homicide.  State  v.  Beckner,  3:  535, 
91  S.  W.  892,  194  Mo.  281. 

1925.  In  rebuttal  of  evidence  that  one  who 
had  attempted  to  escape  from  jail  had  stat- 
ed that  he  would  have  his  wife  bring  him 
saws,  her  testimony  that  she  did  not  do  so 
is  competent.  State  v.  Duff,  24:  625,  122 
N.  W.  829,  144  Iowa,  142. 

1926.  To  rebut  the  effect  of  the  evidence 
of  birth  of  a  child  in  support  of  a  prosecu- 
tion for  incest,  accused  may  show  inter- 
course between  prosecutrix  and  another  at 
about  the  time  the  child  was  alleged  to 
have  been  conceived.  Skidmore  v.  State, 
26:  466,  123  S.  W.  1129,  57  Tex.  Crim.  Rep. 
497. 

1927.  The  testimony  of  accused  in  a  homi- 
cide  case,   given   on   former   trials    for   the 


1214 


EVIDENCE,  XI.  m-o. 


same  offense,  may  be  introduced  in  rebuttal 
of  the  defense  of  insanity.  State  v.  Speyer, 
14:  836,  106  S.  W.  505,  207  Mo.  540. 

1928.  Letters  of  accused  to  his  wife,  inad- 
missible in  a  homicide  case  for  the  purpose 
of  showing  his  affection  for  his  son  whom 
he  has  killed,  cannot  be  introduced  to  show 
that  he  has  not  abandoned  his  wife,  when 
the  only  evidence  of  abandonment  consists 
of  the  defendant's  statement  that  his  son 
was  the  only  thing  on  earth  for  his  wife  to 
get,  and  that  the  defendant  had  had  a  great 
deal  of  trouble, — especially  where  the  case 
is  submitted  to  the  jury  on  a  theory  not 
involving  abandonment  in  the  motive  for 
the  crime.  State  v.  Speyer,  14:  836,  lOG 
6.  W.  505,  207  Mo.  540. 

m.  Payment;  consideration;  credit. 

(See  also   same   heading   in  Digest  L.R.A. 
1-70.) 

V         Payment. 

1929.  In  a  suit  against  the  owner  of  a 
building  to  enforce  a  subcontractor's  lien, 
evidence  of  payments  made  by  the  owner 
to  other  subcontractors  during  the  sixty 
days  within  which  they  were  entitled  to, 
but  did  not,  file  liens,  is  admissible.  Fos- 
sett  V.  Rock  Island  Lumber  &  Mfg.  Co. 
14:  918,  92  Pac.  833,  76  Kan.  428. 

1930.  Upon  the  question  whether  or  not 
payments  of  license  fees  for  a  particular 
year  were  voluntary,  evidence  is  inadmis- 
sible as  to  the  receipt,  agreement,  and  pro- 
test relative  to  the  fee  of  the  previous 
year.  Eslow  v.  Albion,  22:  872,  117  N.  VV. 
328,  153  Mich.  720, 

1931.  A  witness  may  testify  in  a  suit  upon 
a  promissory  note,  where  the  defense  of 
usury  is  interposed,  that  part  of  a  sum  of 
money  apparently  in  excess  of  the  legal  rate 
of  interest,  which  was  retained  by  the  lend- 
er, was  received  in  payment  of  an  independ- 
ent claim,  and  not  reserved  as  interest  upon 
the  loan.  Patton  v.  Bank  of  La  Fayette, 
5:  592,  53  S.  E.  664,  124  Ga.  965. 
Con«^lcleratlon. 

1932.  Upon  the  question  of  consideration 
for  a  subscription  to  a  benevolent  institu- 
tion, evidence  is  admissible  that  the  sub- 
scription was  published  in  a  newspaper  with 
the  consent  of  the  donor,  as  tending  to  show 
that  it  may  have  influenced  the  making  of 
other  svibscriptions,  Brokaw  v,  McElroy, 
50:  835,   143  N.  W.   1087,   162  Iowa,  288. 

1933.  Upon  the  question  of  consideration 
for  a  subscription,  a  letter  by  a  subscriber 
extending  the  time  within  which  the  total 
amount  must  be  subscribed  to  make  his 
subscription  binding,  on  the  faith  of  a  list 
containing  inter  alia  the  one  in  dispute,  is 
admissible  in  evidence.  Brokaw  v.  McElroy, 
50:  835,   143  N.  W.   1087,   162  Iowa,  288. 

1934.  In  a  suit  brought  by  the  payee  on 
rent  notes,  evidence  is  admissible  that,  at 
the  time  they  were  given,  the  payee  agreed 
that  liability  should  exist  only  so  long  as 
possession  continued,  and  that  before  the 
notes  became  due  the  possession  had  been 
surrendered  and  accepted  bv  him.  Martin 
Digest  1-52  L.R.A.(N.S.) 


&  Garrett  v.  Mask,  41:  641,  74  S.  E.  343, 
158  N.  C.  436. 

1935.  In  an  action  upon  a  note  given  in 
compromise  of  a  suit  upon  a  former  one,, 
evidence  is  admissible  that  the  original  not& 
was  given  in  consideration  of  a  gambling 
debt.  Union  Collection  Co.  v.  Buckman,  9: 
568,  88  Pac.  708,  150  Cal.  159. 

Credit. 

Evidence  as  to  crediting  account  to  partner- 
ship, see  supra,   1584. 

n.  Proof   of   negative. 

(See  also  same  heading  in  Digest  L.R.A. 
1-tO.) 

See  also  supra,  1850. 

1936.  Negative  evidence  is  admissible  tO' 
establish  a  good  reputation.  People  v.  Van 
Gaasbeck,  22:  650,  82  N.  E.  718,  189  N,  Y. 
408. 

1937.  In  an  action  to  recover  damages  for- 
injur}'  to  horses  through  the  negligence  of 
the  carrier  in  failing  to  deliver  them  upon 
arrival  at  destination,  and  in  caring  for 
them  subsequently,  a  waybill  calling  for 
freight  in  excess  of  the  contract  rate  is  ad- 
missible in  evidence,  and  also  facts  tending- 
to  show  an  attempt  to  ascertain  the  true 
rate,  as  tending  to  negative  the  charge  of 
negligence,  Beasley  v.  Baltimore  &  P.  R. 
Co.  6:  1048,  27  App.  D.  C.  595. 

o.  Contracts;  breach;  waiver. 

(See  al.90  same  heading  in  Digest  L.R.A. 
l-tO.J 

Evidence  as  to  intent  of  parties,  see  supra, 
1624. 

Breach  of  contract  as  to  delivery  of  tele- 
gram, see  supra,  1756. 

Consideration  for  contract,  see  supra,  1932- 
1935. 

1938.  In  an  action  to  recover  for  services, 
rendered  after  obtaining  majority,  but  while 
remaining  in  the  household  of  a  family  not 
of  kin,  into  which  plaintiff  had  l)een  re- 
ceived during  infancy,  evidence  relating  to 
the  character  and  extent  of  the  services,, 
the  declarations  and  conduct  of  the  re- 
cipient, the  value  of  the  services,  and  cor- 
responding benefits  to  the  recipient,  is  ad- 
missible upon  the  question  whether  the 
services  were  rendered  gratuitously  or  un- 
der an  implied  promise  of  compensation. 
Howard  v.  Randolph,  29:  294,  68  S.  E.  586, 
134  Ga.  691. 

1939.  Upon  the  question  of  the  acceptance- 
of  a  contract  for  services,  evidence  is  not 
admissible  of  objections  to  reports  made 
by  persons  acting  under  the  contract.  Man- 
ufacturers' &  M.  Inspection  Co.  v.  Ever- 
wear  Hosiery  Co.  42:  847,  138  N.  W.  624,. 
152  Wis.  73. 

1940.  In  an  action  to  recover  back  post- 
office  equipment  which  the  owner  had  as- 
signed to  the  postmaster  in  consideration  of 
the  location  of  the  office  in  a  certain  bailor 

.:i.Vi;./i.n.  r  ^i—L    tea^qldi 


EVIDENCE,  XI.  p,  q. 


1215 


ing,  it  is  not  error  to  admit  in  evidence  the 
contract  showing  the  assignment  and  the 
consideration.  Benson  v.  Bavvden,  13:  721, 
113  N.  VV.  20,  149  Mich.  584. 

1941.  Upon  the  question  whether  a  livery 
rig  was  engaged  absolutely  or  the  customer 
offered  tc  take  it  if  satisfactory  upon  in- 
spection, testimony  is  admissible  of  one 
for  whose  use  it  was  intended,  that  slie 
was  old  and  ill,  and  required  the  easiest 
kind  of  a  vehicle.  Kilpatrick  v.  Inman,  26: 
188,  105  Pac.   1080,  46  Colo.  514. 

1942.  In  determining  the  reasonableness 
of  the  conduct  of  one  who  upon  his  vendor's 
failure  to  make  delivery  of  goods  which, 
to  the  knowledge  of  his  vendor,  he  has  pur- 
chased for  resale,  goes  into  the  open  market 
and  purchases  a  substitute  in  order  to  fill 
his  subcontract  of  sale,  and  of  the  time  of 
his  purchase,  the  conduct  of  the  original 
vendor  in  asking  delay  after  the  failure 
to  deliver  and  his  promise  to  make  de- 
livery may  be  considered  in  an  action 
brought  by  the  original  vendee  to  recover 
damages  caused  by  the  failure  of  his  vendor 
to  make  delivery.  Hardwood  Lumber  Co. 
V.  Adam,  32:  192,  68  S.  E.  725,  134  Ga.  821. 

(Annotated) 

1943.  As  tending  to  throw  light  upon  the 
scope  of  an  alleged  warranty  of  quality  of  a 
manufactured  article,  and  the  circumstances 
under  which  it  was  given  by  the  manufac- 
turer to  a  consumer,  correspondence  between 
them  at  or  about  the  time  it  was  given,  con- 
taining, inter  aha,  complaints  about  the 
quality  of  material  with  which  other  or- 
ders had  been  filled,  is  admissible.  Leavitt 
V.  The  Fiberloid  Co.  15:  855,  82  N.  E.  682, 
196  Mass.  440. 

Insurance  contract. 

Evidence  as  to  intent  of  parties,  see  supra, 

1623. 
As  to  fraud,  see  supra,  1667,  1668. 

1944.  Evidence  as  to  the  manner  in  which 
an  application  for  life  insurance  was  pre- 
pared is  admissible  in  an  action  on  the  pol- 
icy, to  estop  the  company  from  availing 
itself  of  the  falsity  of  statments  contained 
therein  as  a  defense.  Roe  v.  National  L. 
Ins.  Asso.  17:  1 144,  115  N.  W.  500,  137  Iowa, 
696. 

1945.  When  the  actual  effect  produced  on 
the  medical  xaminer  by  erroneous  answers 
given  by  an  applicant  for  insurance  to  ques- 
tions propounded  to  him  is  shown,  evidence 
is  not  admissible  as  to  what  weight  might 
have  been  given  by  physicians  generally  to 
the  answers  had  they  been  correct.  Roe  v. 
National  L.  Ins.  Asso.  17:  1144,  115  N.  W. 
500,  137  Iowa.  696. 

1946.  Evidence  of  the  examining  physician 
that  his  recom^aendation  of  an  applica'nt 
for  insurance  would  not  have  been  prevent- 
ed by  knowledge  that  his  attending  physi- 
cian thought  he  had  heart  disease,  since  ho 
would  have  relied  on  his  own  examination, 
is  admissible  in  an  action  upon  the  policy, 
as  pertinent  to  the  issue  whether  or  not  he 
was  misled  by  answers  in  the  application. 
Roe  v.  National  L.  Ins.  Asso.  17:  1144,  115 
N.  W.  500.  137   Iowa,  696. 

1947.  Evidence  of  having  written  letters 
Digest   1-52  I..R.A.(N.S.) 


subsequent  to  the  commencement  of  an  ac- 
tion on  a  policy  of  insurance  upon  the  life 
of  one  who  disappeared  without  explana- 
tion, and  has  not  been  heard  from  for  more 
than  seven  years,  making  inquiry  as  to  the 
presence  of  the  insured  in  a  certain  place 
within  the  seven  years,  and  about  the  time 
an  informant  claimed  to  have  seen  him 
tliere,  is  admissible  in  the  action.  Kennedy 
V.  Modern  Woodmen  of  America,  28:  181,  90 
N.  E.  1084,  243  111.  560. 
Breach. 

1948.  Upon  the  question  whether  or  not 
goods  sold  to  fill  an  order  correspond  w.th 
the  sample,  the  one  giving  the  order  may 
testify  as  to  the  quality  and  condition  of 
the  sample.  Schiller  v.  Blyth  &  Fargo  Co. 
8:  1167,  88  Pac.  648,  15  Wyo.  304. 

1949.  Upon  the  question  of  breach  of  war- 
ranty of  quality  of  a  composition  material 
manufactured  by  defendant,  evidence  is  nit 
admissible  of  the  specific  number  of  men  em- 
ployed by  him  in  a  particular  process  of  the 
manufacture.  Leavitt  v.  The  Fiberloid  Co. 
15:  855,  82  N.   E.  682,   196  Mass.   440. 

1950.  In  a  suit  for  breach  of  warranty  of 
the  dryness  of  cases  purchased  as  carriers 
for  tin  cans,  by  reason  of  which  the  cans 
rusted,  evidence  that  other  cans  manufac- 
tured by  the  same  maker  were  found  to 
have  moisture  on  them  which  might  have 
been  the  cause  of  the  rust  is  not  admissible, 
in  the  absence  of  anything  to  show  that  they 
were  manufactured  by  the  same  process 
or  in  the  same  manner  as  those  for  which 
the  cases  were  intended.  North  Alaska 
Salmon  Co.  v.  Hobbs,  Wall,  &  Co.  35:  501, 
113  Pac.  870,  159  Cal,  380. 

1951.  In  an  action  for  breach  of  a  contract 
for  transportation  contained  in  a  limited 
ticket,  it  is  not  error  to  exclude  evidence 
that  the  ticket  was  sold  at  a  reduced  price, 
where  it  was  furnished  the  passenger  by  an 
immigrant  agent,  so  that  the  passenger  was 
not  entitled  to  demand  any  kind  of  ticket 
he  might  have  desired,  but  is  presumed,  from 
the  fact  that  he  accepted  the  ticket,  to  have 
received  what  was  paid  for.  Brian  v.  Ore- 
gon Short  Line  R.  Co.  25:  459,  105  Pac.  489, 
40  Mont.  103. 

p.  Matters  pending  suit. 

(See  same  heading  in  Digest  L.R.A.  1-10. J 

q.  Pecuniary  condition;  family  circum- 
stances. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

Pecuniary  condition. 

For  purpose  of  showing  amount  of  damages, 

see  supra,  1724,  1751. 
Review  of  discretion  in  admitting  evidence 

of,  see  Appeal  and  Error,  603. 
Offer  of  evidence  as  to,  see  Trial,  45. 

1952.  In  a  contest  between  the  maternal 
grandfather  of  a  child  wliobe  parents  are 
dead,  who  has  possession  of  the  child  and 
has  applied  for  its  guardianship,  and  the 
paternal   grandfather,   over   such   guardian- 


1216 


EVIDENCE,  XI.  r,  •. 


ship,  evidence  of  the  financial  condition  of 
the  applicant  and  his  wife  is  admissible. 
Churcliill  V.  Jackson,  49:  875,  64  S.  E.  691, 
132  Ga.  666. 

1953.  In  an  action  by  a  surgeon  to  recover 
for  services  to  a  stranger  wlio  had  been 
rendered  unconscious  by  an  accident,  and 
who  died  without  recovering  consciousness, 
evidence  is  not  admissible  of  the  financial 
ability  of  the  patient.  Cotnam  v.  Wisdom, 
12:  1090,   104  S.  W.   164,  83  Ark.  601. 

1954.  Evidence  of  defendant's  wealth  is  not 
admissible  in  an  action  to  recover  damages 
for  alienation  of  the  afl'ection  of  plaintiff's 
husband.  Phillips  v.  Thomas,  42:  582,  127 
Pac.  97,  70  Wash.  533. 

—  Insolvency. 

Evidence  of  general  reputation  as  to,  see  su- 
pra, 1546. 

SuflSciency  of  evidence,  see  infra,  2199- 
2201. 

1955.  Evidence  of  the  value  of  specific 
pieces  of  commercial  paper,  based  wholly 
on  ignorance  of  the  witness  as  to  whether 
the  maker  possesses  any  property  liable  to 
execution,  is  not  relevant  on  the  subject  of 
the  solvency  of  the  maker  thereof.  Ellis  v. 
State,  20:  444,  119  N.  W.  1110,  138  Wis.  513. 

1956.  Proof  that  a  person  was  insolvent  at 
a  particular  time,  by  means  of  judgments 
against  him,  shown  at  such  time  to  be  un- 
collectable,  is  not  relevant  as  circumstan- 
tial evidence  that  he  was  insolvent  six 
months  or  more  prior  thereto,  especially 
where,  shortly  after  the  earlier  date,  he 
transferred  his  property  for  the  payment 
of  his  obligations.  Ellis  v.  State,  20:  444, 
119  N.  W.  1110,  138  Wis.  513. 

Family   circumstances. 

1957.  In  an  action  on  a  certificate  of  bene- 
fit insurance,  evidence  of  the  number  of  chil- 
dren of  the  insured  and  their  ages,  and  of 
the  date  of  his  marriage  with  the  bene- 
ficiary, and  of  the  fact  that  some  efforts 
had  been  made  to  compromise  the  case,  is 
incompetent.  Knights  of  Maccabees  of  W. 
V.  Shields,  49:  853,  160  S.  W.  1043,  156  Ky. 
270. 

1958.  In  an  action  to  recover  damages 
from  a  man  for  causing  his  son  to  separate 
from  his  wife,  evidence  is  not  admissible  as 
to  her  efforts  to  support  her  child  after  the 
separation,  or  as  to  the  father's  collecting 
the  son's  wages.  Ickes  v.  Ickes,  44:  ni8, 
85  Atl.  885,  237  Pa.  582. 

r.  Persons;  personal  relations. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Opinion  evidence  as  to,  see  supra,  1193. 
Admissions  of  person  to  prove  agency,  see 
supra,  1249. 

1959.  Testimony  of  persons  sued  for  tres- 
pass on  real  estate,  that  they  were  mem- 
bers of  the  board  of  health,  is  competent  to 
prove  their  official  capacity.  Barry  v. 
Smith,  5:  1028,  77  N.  E.  1099,  191  Mass.  78. 

1960.  Where  it  was  a  material  question  for 
the  jury  whether  one  acting  as  superintend- 
Digest   1-52  L.R.A.(N.S.) 


ent  of  a  mine  was  so  superintending  for  the 
owner,  as  its  employee,  or  operating  it  for 
himself,  as  an  independent  contractor,  evi- 
dence that  the  owner  held  insurance  indem- 
nifying it  against  loss  and  damages  from 
accidents  to  laborers  in  the  mine,  and  of 
the  terms  of  the  policy,  and  of  the  corres- 
pondence between  the  owner  and  the  insur- 
ance company  and  with  the  alleged  contract- 
or, was  competent  as  tending  to  show  the 
real  relation  between  the  person  so  super- 
intending the  operation  of  the  mine  and  the 
mine  owner.  Laffery  v.  United  States  Gyp- 
sum Co.  45:930,  111  Pac.  498,  83  Kan.  349. 

1961.  Upon  the  question  of  a  person's  lia- 
bility for  injury  to  a  servant,  evidence  of 
the  officer  who  served  notice  of  the  injury, 
that  he  saw  the  defendant's  sign  over  the 
door,  is  admissible.  Beauregard  v.  Benja- 
min F.  Smith  Co.  45:200,  100  N.  E.  627, 
213  Mass.  259. 

1962.  Upon  the  question  whether  or  not 
one  operating  his  father's  automobile  on  a 
highway  at  the  time  of  its  collision  with 
another  car  was  acting  as  the  servant  of 
his  father,  evidence  is  admissible  that  he 
was  the  regularly  employed  chauffeur  of 
his  father's  family  and  had  secured  the  car 
to  take  persons  to  a  dance,  and  that  they 
were  in  the  presence  of  his  father  when  they 
started  upon  the  journey,  and  the  father 
gave  instructions  as  to  headlights.  Bourne 
V.  Whitman,  35:  701,  95  N.  E.  404,  209  Mass, 
155. 

1963.  Upon  the  question  whether  or  not  a 
railroad  employee  was  engaged  in  inter- 
state commerce  at  the  time  of  his  injury, 
evidence  is  admissible  as  to  the  general 
duties  with  which  he  was  charged  during 
the  time  of  his  employment  with  the  fur- 
therance of  which  he  was  engaged  at  the 
time  of  his  injury.  Montgomery  v.  South- 
ern P.  Co.  47:  13,  131  Pac.  507,  64  Or.  597. 

1964.  Testimony  of  the  wife  is  not  admis- 
sible to  show  nonaccess  of  the  man  she  sub- 
sequently married  during  the  period  when 
she  became  pregnant  by  another  of  a  child 
born  in  wedlock,  because  of  which  he  is 
suing  for  divorce.  Wallace  v.  Wallace,  14: 
544,  114  N.  W.  527,  137  Iowa,  37. 

(Annotated) 

1965.  Upon  the  question  of  the  liability  of 
a  railroad  company  for  injury  to  an  oc- 
cupant of  a  building  on  its  right  of  way 
through  derailment  of  its  train,  evidence  is 
admissible  with  respect  to  the  occupation 
and  use  of  the  right  of  way  at  and  near  the 
point  of  accident  to  show  the  relation  of 
the  parties  and  the  duty  enjoined  upon  the 
railroad  company.  Gilligan  v.  Denver  &  R. 
G.  R.  Co.  50:  1191,  136  Pac.  958,  43  Utah, 
543. 

s.  Connecting     with    subject;     matters 
about  other  persons. 

(See  also   same   heading  in  Digest  L.RJL. 
1-10.)  .  .7  ',..;i 

-.  .7/  .VI 

See  supra,  1843.      '   •  >      "S'^l^ 

r.H.J   to-I  iaoaiCC 


EVIDENCE,  XI.  t. 


1217 


Itfatters  about  other  persons. 

See  also  supra,  825. 

190U.  Upon  a  trial  of  an  action  against  a 
railroad  c(J!iipany  for  assault  on  a  passen- 
ger, evidouco  is  not  admissible  of  conviction 
of  the  servant  who  made  the  assault,  for 
the  murder  hi  plaintiiT's  brother,  a  fellow 
passenger,  just  prior  to  the  assault  on 
plaintiir.  Layne  v.  Chesapeake  &  O.  R. 
Lo.  31:  414,  Uu  S.  E.  700,  68  W.  Va.  213. 

t.  Cvimhial  matters  generally. 

(Sec  alfin  .^ame  heading  in  Digest  L.R.A. 
1-10.) 

Acts  or  declarations  of  coconspirators,  see 
supra,  X.  g. 

Evidence  in  explanation  and  rebuttal,  see 
supra,  XI.  1. 

Documentary  evidence,  see  supra,  772,  778, 
779,  784,  806,  808,  817,  820,  834,  837, 
838,  840,  843,  877. 

Demonstrative  evidence,  see  supra,  880,  882, 
883,  885,  891. 

Declarations  or  acts  of  accused,  see  supra, 
1353-1359. 

Evidence  as  to  character  or  reputation  of 
accused,  see  supra,  1551-1557. 

Evidence  as  to  character  and  reputation  of 
person  killed,  see  supra,  1560-1567. 

As  to  character  or  reputation  of  person  as- 
saulted, see  supra,  1568. 

Evidence  as  to  chastity  in  criminal  prose- 
cution, see  supra,  1575,  1576. 

Evidence  as  to  knowledge  or  notice  in  crimi- 
nal case,  see  supra,  1592,  1593. 

Motive,  see  supra,  1593,  1599,  1649-1657. 

As  to  mental  responsibility  of  accused,  see 
supra,  1602-1606. 

Evidence  as  to  intent  or  purpose,  see  supra, 
1633-1641. 

Evidence  to  support  defense  of  duress,  see 
supra,  167-7. 

Evidence  of  suggestive  facts,  see  supra, 
1824-1839. 

Circumstantial  evidence,  see  supra,  1843, 
1844. 

Evidence  of  other  crimes,  see  supra,  1884, 
1887-1915. 

Evidence  of  experiments,  see  infra,  2020, 
2021. 

Evidence  admissible  under  pleading,  see  in- 
fra, 2447-2451. 

Cure  of  error  in  admitting  evidence,  see 
Appeal  and  Error,  829. 

Prejudicial  error  as  to,  see  Appeal  and 
Error,   1119-1129,   1150-1155. 

Right  to  read  at  trial  of  one  accused  of 
crime  testimony  of  witnesses  given  be- 
fore committing  magistrate,  see  Crimi- 
nal Law,  103, 

Upon  trial  of  expressman  for  breach  of  stat- 
ute requiring  recording,  in  book,  of  liq- 
uors received  for  transortation,  see 
Master  and  Servant,  893. 

Admissibility  to  impeach  or  corroborate 
witness,  see  Witnesses,  III. 

1967.  Evidence  of  cures  effected  by  Chris- 
tion  Science  treatment  is  not  admissible  in 

a  prosecution  for  failure  to  provide  a  child    sell   same,    and   to   convey   same   from   one 
Digest  1-52  L.Il.A.(N.S.)  77 


with  medical  attendance  and  remedies, 
where  motive  or  belief  is  not  a  lawful  ex- 
cuse for  omitting  to  provide  what  the  law 
requires.  Rex  v.  Lewis,  1  B.  R.  C.  732,  6 
Ont.  L.  Rep.  132. 

1968.  Upon  the  question  whether  or  not  a 
letter  deposited  in  the  mail  gives  informa- 
tion prohibited  by  statute,  evidence  is  ad- 
missible of  an  interview  with  the  sender  by 
one  supposed  by  him  to  have  appeared  in 
response  to  it.  Kemp  v.  United  States, 
51:  825,  41  App.  D.  C.  539. 

1969.  In  a  prosecution  of  the  officers  of  a 
trust  company  for  larceny  of  state  moneys 
in  converting  those  deposited  with  the  com- 
pany to  their  own  use  by  using  them  for 
its  benefit,  evidence  is  admissible  of  a  de- 
mand upon  the  company  for  their  return, 
since  a  demand  on  the  company  for  which 
they  are  acting  is  sufficient  to  charge  them. 
State  v.  Ross,  42:  601,  104  Pac.  596,  106 
Pac.  1022,  55  Or.  450. 

1970.  Upon  trial  of  an  information  for 
carrying  a  red  flag  in  a  parade,  and  thereby 
infuriating  the  public,  in  violation  of  an 
ordinance  against  riot,  evidence  is  admissi- 
ble as  to  how  such  flag  was  regarded  by 
the  public.  People  v.  Burman,  25:  251,  117 
N.  W.  589,  154  Mich.  150.  (Annotated) 

1971.  In  a  prosecution  for  a  conspiracy  to 
defraud  the  United  States  of  public  land, 
proof  of  the  formation  of  the  conspiracy  and 
of  an  overt  act  thereunder  more  than  three 
years  before  the  filing  of  an  indictment, 
prosecution  for  which  is  barred  by  the  stat- 
ute of  limitations,  is  competent  evidence  for 
the  consideration  of  the  jury,  in  connection 
with  evidence  aliunde  of  the  existence  of  the 
conspiracy  and  of  defendant's  conscious  par- 
ticipation in  it  within  three  years.  Ware  v. 
United  States,  12:  1053,  154  Fed.  577,  84  C. 
C.  A.  503. 

1972.  In  a  prosecution  for  perjury  alleged 
to  have  been  committed  in  the  trial  of  a 
certain  criminal  case  in  testifying  in  be- 
half of  the  defendant  therein,  it  is  ordi- 
narily not  competent  for  the  state  to  prove 
that  such  trial  resulted  in  a  conviction. 
Gray  v.  State,  32:  142,  111  Pac.  825,  4  Okla. 
Crim.  Rep.  292. 

1973.  Upon  the  question  whether  or  not  a 
man  committed  perjury  in  testifying  that 
he  did  not  have  sexual  intercourse  with  his 
wife  before  their  marriage,  her  testimony 
as  to  such  acts  of  intercourse  is  material 
and  relevant.  Spearman  v.  State,  44:  243, 
152  S.  W.  915,  —  Tex.  Crim.  Rep.  — . 

1974.  In  defense  of  an  indictment  for  sell- 
ing intoxicating  drinks,  tlie  article  sold 
being  labeled  "Temperance  Beer,"  the  de- 
fendant has  the  right  to  show  that  it  is 
not  intoxicating.  State  v.  Durr,  46:764, 
71  S.  E.  767,  69  W.  Va.  251. 

1975.  Upon  a  prosecution  for  selling  intoxi- 
icating  liquor  without  a  license,  evidence  is 
not  admissible  that  accused  purchased  the 
beverage  under  a  warranty  that  it  was  not 
intoxicating.  Haynes  v.  State,  13:  559,  105 
S.  W.  251,  118  Tenn.  709. 

1976.  In  a  prosecution  for  having  in  pos- 
session   intoxicating   liquor    with   intent    to 


1218 


EVIDENCE,  XL  t. 


place  within  the  state  to  another  place  | 
therein,  evidence  that  previously  a  justice  • 
of  the  peace  had  caused  the  liquor  to  be 
seized  under  a  search  warrant,  and,  on 
the  defendant's  motion,  has  subsequently 
quashed  the  warrant  and  ordered  the  liquor 
redelivered  to  the  defendant,  is  not  com- 
petent or  admissible  in  the  defendant's  be- 
half. Chi  Ids  V.  State,  33:  563,  113  Pac.  545, 
4  Okla.  Crim.  Rep.  474. 

1977.  Testimony  showing  that  defendant 
charged  with  violating  the  white  slave  act 
of  June  25,  1910,  by  obtaining,  aiding,  or 
inducing  the  interstate  transportation  of 
women  or  girls  for  immoral  purposes,  re- 
strained the  liberty  of  the  women  at  her 
house  in  the  place  where  the  transportation 
ended,  and  coerced  their  stay  with  her,  is 
relevant  as  illustrating  and  constituting  a 
completion  of  what  was  done  at  the  begin- 
ning of  the  transportation.  Hoke  v.  United 
States,  43:  906,  33  Sup.  Ct.  Rep.  281,  227 
U.  S.  308,  57  L.  ed.  523. 

1978.  Upon  trial  of  one  for  murder  of  a 
girl,  evidence  is  not  admissible  that  during 
his  absence,  and  without  his  knowledge,  the 
girl  was  accustomed  to  make  social  visits  to 
the  family  where  he  boarded.  Sanders  v. 
State,  22:  243,  112  S.  W.  68,  54  Tex.  Crim. 
Rep.  101. 

1979.  In  a  murder  trial,  a  witness  may  tes- 
tify as  to  the  number  of  shot  of  the  size 
found  in  the  body  of  the  victim,  contained 
in  a  shell  of  the  kind  found  at  the  point 
where  accused  is  said  to  have  been  standing 
at  the  time  the  fatal  shot  was  fired.  Grant 
V.  State,  42:  428,  148  S.  W.  760,  —  Tex. 
Crim.  Rep.  — . 

1980.  Upon  the  trial  of  one  accused  of 
murder  of  his  son  with  whom  he  had  been 
at  outs  for  two  years,  it  is  not  error  to  ex- 
clude the  testimony  of  the  accused  as  to 
how  many  of  his  children  took  sides  with 
the  deceased  in  the  controversv.  Lindsay  v. 
State,  50:  1077,  63  So.  832,  66  Fla.  341. 

1981.  Where  it  is  shown  upon  the  trial  of 
one  accused  of  murder  that  ill  feeling  had 
existed  between  him  and  his  victim  for 
about  two  years,  it  is  not  error  to  exclude 
evidence  of  the  accused  as  to  what  first 
started  the  trouble,  since  this  is  too  remote 
and  immaterial  and  irrelevant  to  any  issue 
in  the  case.  Lindsay  v.  State,  50:  1077,  63 
So.  832,  66  Fla.  341. 

1982.  That  several  days  elapse  between  the 
finding  of  a  corpse  and,  near  the  spot,  an 
article  known  to  have  belonged  to  a  certain 
person  who  is  charged  to  have  been  mur- 
dered, does  not  render  the  fact  of  the  find- 
ing inadmissible  in  proof  of  the  corpus  de- 
licti, but  it  weakens  its  force  for  that  pur- 
pose. State  V.  Barnes,  7:  181,  85  Pac.  998, 
47  Or.  592. 

1983.  Evidence  of  an  ear  parfe  post  mortem 
examination  of  the  body  of  deceased,  made 
two  years  after  the  burial,  is  not  admissible 
in  evidence  upon  trial  of  ^^a  prosecution  for 
murder.  Self  v.  State,  of.  238,  43  So.  945, 
90  Miss.  58. 

Trailing  vHth  bloodlvonnds. 

1984.  Before  evidence  of  the  conduct  of 
bloodhounds  alleged  to  have  been  put  upon 
Digest  1-52  UR.A.tN.S.) 


the  trail  of  the  defendant  can  properly  "be 
received,  it  should  appear  that  the  dogs  in 
question  were  able,  at  the  time  and  under 
the  circumstances,  to  follow  the  scent  or 
track  of  a  person.  State  v.  Adams,  35:  870,. 
116  Pac.  608,  85  Kan.  435. 

1985.  The  evidence  and  result  of  the  work 
of  dogs  in  following  the  tracks  of  a  per- 
son accused  of  crime  may  be  considered  by 
the  jury  where  they  are  found  to  liave  been 
able  at  the  time  and  under  the  circumstan- 
ces to  follow  the  scent  or  track  of  a  per-  . 
son  and  to  have  been  accurate,  certain,  and 
reliable  in  so  doing.  State  v.  Adams,  35: 
870,  lie  Pac.  608,  85  Kan.  335. 

(Annotated) 

1986.  Evidence  of  the  location  of  a  crimi- 
nal by  bloodhounds  is  admissible  where  they 
are  shown  to  be  of  pure  blood,  well  trained 
to  track  human  beings  by  an  experienced 
trainer,  and  to  have  been  subjected  to  seveie 
and  satisfactory  tests,  and  it  appears  that 
they  were  put  on  tlie  trail  at  a  place  wiiere 
the  criminal  agency  must  have  had  it» 
origin.  Spears  v.  State,  16:  285,  46  So.  160, 
92  Miss.  613. 

1987.  To  discredit  the  evidence  furnished 
by  bloodhounds  in  trailing  a  criminal  from 
the  scene  of  the  crime,  evidence  is  not  ad- 
missible of  the  conduct  of  other  dogs  trained 
by  the  same  trainer,  which  failed  to  keep  a 
trail.  Spears  v.  State,  16:  285,  46  So.  166, 
92  Miss.  613. 

1988.  In  order  to  make  competent  evidence 
of  the  conduct  of  bloodhounds  in  trailing  or 
following  the  tracks  of  one  accused  of  crime, 
it  is  necessary  that  a  preliminary  founda- 
tion be  laid  therefor,  by  showing  by  some 
one  or  more  having  personal  knowledge  of 
the  facts  that  the  particular  dog  so  used 
had  been  trained  and  tested  in  trailing  hu- 
man beings,  and,  by  experience,  had  been 
found  reliable  in  such  cases,  and  that  the 
dog  so  trained  and  tested  was,  in  the  in- 
stance involved,  laid  on  the  trail,  whether  it 
was  visible  or  invisible,  at  a  point  where  the 
circumstances  tended  to  show  that  the  guil- 
ty party  had  been,  or  upon  a  track  which 
the  circumstances  indicated  to  have  been 
made  by  him.  State  v.  Dickerson,  13:  341, 
82  N.  E.  969,  77  Ohio  St.  34. 

Evidence  as  to  footprints. 

1989.  The  description  and  measurement  of 
the  tracks  at  the  scene  of  the  crime,  which 
correspond  with  the  shoes  worn  by  one  ac- 
cused of  having  committed  it,  and  which 
have  been  introduced  in  evidence,  are  admis- 
sible upon  the  question»of  his  guilt.  State 
V.  Adams,  35:  870,  116  Pac.  608,  85  Kan.  135. 
Canse. 

1990.  Upon  a  prosecution  against  the  own- 
er for  violation  of  an  ordinance  prohibiting 
mains  in  a  highway  to  be  left  in  a  leaky 
condition,  evidence  is  'ot  admissible  that 
the  leaks  were  caused  by  the  jar  of  trains 
passing  over  them.  Grumpier  v.  Vieksburg, 
11:476,  42  So.  673,  89  Miss."  214. 


EVIDENCE,  XI.  u-w. 


1219 


u.  Title  or  possession. 

(See  also   same   heading   in  Digest   L.R.A. 
1-10.) 

Admissibility  of  document  for   purpose   of, 

see  supra,  IV.  p. 
Admissibility     under    pleading,     see    infra, 

2472-2474. 
Sufficiency  of  evidence,  see  infra,  XII.  e. 

Of  personal  property. 

1991.  Upon  the  question  of  ownership  of  a 
team  which  was  negligently  driven  so  as  to 
injure  a  person  on  a  street  car,  evidence  is 
admissible  of  a  report  by  the  alleged  owner 
to  a  casualty  company  admitting  that  he 
owned  the  team.  Siblev  v.  Nason,  12:  1173, 
81  N.  E.  887,  196  Mass.*^  125. 

1992.  The  jury  have  a  right,  in  a  prosecu- 
tion for  larceny,  to  consider  the  fact  that 
the  cattle  alleged  to  have  been  stolen  bore 
the  brand  of  the  complaining  witness,  as 
some  evidence  that  they  were  owned  by 
him.  State  v,  "Wolfley,  11:  87,  89  Pac.  1046, 
75   Kan.   406.  (Annotated) 

1993.  Upon  the  question  raised  after  their 
death,  as  to  whether  an  article  of  furniture 
belonged  to  a  man  or  his  wife,  evidence  is 
not  admissible  that  she,  while  it  was  in  her 
possession,  referred  to  it  as  her  mother's, 
since  this  does  not  characterize  the  nature 
of  the  possession,  but  only  the  source  of 
title.  Hopkins  v.  Heywood,  49:  710,  86  Atl. 
305,  86  Vt.  486. 

Of  real  property. 

1994.  Upon  the  question  of  the  liability  of 
a  property  owner  for  lumber  used  by  his 
tenant  in  improvements  upon  the  property, 
evidence  is  admissible  of  a  bill  of  sale  by 
the  tenant  to  him  of  the  building.  Walter 
V.  Sperry,  44:  28,  85  Atl.  739,  86  Conn.  474. 

1995.  One  suing  on  a  duebill  upon  which  a 
payment  to  a  lumber  company  is  claimed 
as  a  credit  may  be  required  to  testify  that 
her  husband  owned  no  real  estate,  for 
the  purpose  of  showing  tliat  the  lumber 
furnished  by  the  company  was  used  on  her 
property.  Wells  v.  Hays,  42:  727,  76  S.  E. 
195,  93  S.  C.  168, 

1996.  Upon  the  question  whether  or  not  a 
tenant  of  a  life  tenant  wilfully  holds  over 
after  the  death  of  the  life  tenant  so  as  to  be 
subject  to  double  damages  under  the  stat- 
ute, evidence  is  admissible  of  permission  to 
hold  as  mortgagee  in  possession,  given  by 
one  of  the  remaindermen.  Barson  v.  Mulli- 
gan, 16:  151,  84  N.  E.  75   191  N.  Y.  306. 

1997.  In  an  action  by  a  mortgagor  to  re- 
cover possession  of  the  mortgaged  property 
from  the  mortgagee,  in  which  the  complaint 
alleges  that  defendant  is  wrongfully  in  pos- 
ses'iinn  without  leave  of  plfiptiff  and  with- 
out legal  right,  which  is  denied  by  the  an- 
swer, evidence  is  admissible  that  the  mort- 
gagor gave  permission  to  enter  under  the 
mortgage,  Barson  v.  Mulligan,  16:  151,  84 
N.  E.  75,  191  N.  Y.  306. 

1998.  Upon  the  question  of  the  right,  as 
between  landlord  and  tenant,  to  improve- 
ments placed  by  the  tenant  on  the  leasehold, 
evidence  is  admissible  that,  afcter  the  ex- 
Digest  1-52  L.R.A.CN.S.) 


piration  of  the  lease,  the  tenant  paid  the 
taxes  on  the  building.  Miller  v.  Johnson, 
48:  294,   134  Pac.   1017,  43   Utah,  468. 

1999.  Upon  trial  of  a  proceeding  i<»  pro- 
cure a  right  of  way  for  a  ditch  to  conduct 
water  the  right  to  which  petitioner  claims 
by  right  of  appropriation,  evidence  is  not  ad- 
missible as  to  the  rights  of  other  alleged 
appropriators  from  the  same  stream,  wlio 
are  not  made  parties  to  the  proceeding. 
Walker  v,  Shasta  Power  Co.  19:  725,  16U 
Fed.  856,  87  C,  C.  A.  GOO. 

V.  Identification, 

(See  also  game  heading  in  Digest  L.R.A. 
1-70.) 

Of  person. 

Opinion  evidence  as  to  identity,  see  supra, 
1165-1167. 

Identification  of  parties  to  telephone  con- 
versation, see   supra,   1485,    1486. 

Prejudicial  error  as  to,  see  Appeal  and 
Error,  1155. 

See  also  supra,  1385,  1405. 

2000.  In  a  civil  action  to  recover  damages 
for  the  publication  of  a  libelous  article,  evi- 
dence showing  the  relations  existing  between 
the  plaintiff  and  the  author  of  the  alleged 
libel  is  admissible  for  the  purpose  of  proving 
that  the  plaintiff  was  the  person  referred  to, 
when  his  name  does  not  appear  in  the  ar- 
ticle, and  defendant  does  not  admit  that 
he  is  the  one  referred  to.  Dennison  v. 
Daily  News  Pub.  Co.  23  :  362,  118  N.  W.  568,. 
82  Neb.  675. 

Of  thing. 

Opinion  evidence  as  to  identity,  see  supra, 
1162-1164, 

w.  Justification;    mitigation;    aggrava- 
tion. 

(See  oloo  same  heading  in  Digest  L.R.A. 
1-10.) 

Jn«!ti^  cation. 

Sufficiency  of  evidence  to  prove,   see   infra, 

2337. 
Disqualified   person   voting  under  advice  of 

counsel,  see  Elections,  GO. 

2001.  Evidence  of  ownership  of  tlie  prop- 
erty is  admissible  in  defense  of  an  nction 
for  assault  upon  one  in  wrongful  possession, 
made  during  an  attempt  to  effect  an  entry 
thereon.  Walker  v.  Chanslor,  17:  455,  94 
Pac.  606.  1.53  Cal.  118. 

2002.  Evidence  is  not  admissible,  in  justifi- 
cation of  an  assault  with  a  deadly  weapon, 
that  the  person  assaulted  had  a  iiad  moral 
character,  and  had  interfered  with  the  do- 
mestic relations  of  others,  and  the  assail- 
ant believed  that  he  intended  the  seduclioTT 
of  his  wife,  whom  he  had  seen  entering 
the  rooms  of  the  person  assaulted,  where 
she  was  not  present  or  in  imminent  danger 
at  the  time  of  the  assault.  State  v. 
Young;  18:  688,  96  Pac.  1067.  52  Or.  227. 

2003.  Upon  trial  of  an  action  for  damages 
for  wrongful  death,  wlicKe  the  defense  is 
that   the   killing   was   in   making  an  arrest 


1220 


EVIDENCE,  XI.  X. 


for  burglary,  evidence  is  admissible  that  the 
building  into  which  deceased  was  attempt- 
ing to  break  contained  a  safe  with  money 
in  it.  Suell  v.  Derricott,  23  :  996,  49  So.  895, 
161  Ala.  259. 
—  In  libel  snit. 

2004.  In  defense  of  an  action  for  libel  in 
charging  a  school  director  with  furnishing 
material  for  a  schoolhouse  in  process  of 
erection,  a  bill  for  goods  sold  is  admissible 
under  the  common-law  rule  forbidding  him 
to  contract  with  himself  for  supplies,  al- 
though it  is  not  shown  that  they  were  used 
in  the  construction  of  the  building,  and  the 
statute,  by  specifically  prohibiting  the  fur- 
nishing of  material  to  be  used  in  the  erec- 
tion, ventilating,  warming,  furnishing,  or 
repairing  of  a  schoolhouse,  might,  by  impli- 
cation, seem  to  allow  the  furnishing  of  sup- 
plies for  other  purposes.  WooUey  v.  Plain- 
dealer  Pub.  Co.  5:  498,  84  Pac.  473,  47  Or. 
619. 

Mitigation. 

Admissibility    under    pleading,    see    infra, 
2461. 

2005.  That  the  defendant  in  an  action  for 
maliciously  levying  an  attachment  on  ex- 
empt property  acted  under  the  advice  of 
counsel  is  not  a  defense,  but  the  fact  may 
be  shown  in  mitigation  of  damages.  Grime- 
stad  V.  Lofgren,  17:  990,  117  N.  W.  515,  105 
Minn.  286. 

2006.  The  fact  that  the  injurious  results 
of  seepage  from  an  irrigation  ditch  may  be 
obviated  by  drainage  may  be  shown,  as  af- 
fecting the  measure  of  damages.  Howell  v. 
Big  Horn  Basin  Colonization  Co.  i:  596,  81 
Pac.  785,  14  Wyo.  14. 

2007.  In  an  action  against  an  individual 
for  causing  the  plaintiff  to  be  taken  into 
custody  on  a  charge  of  felony,  evidence  af- 
fording reasonable  and  probable  cause  of 
suspicion  of  the  plaintiff's  guilt  is  admis- 
sible in  mitigation  of  damages.  Rogers  v. 
Toliver,  45:  64,  77  S.  E.  28,  139  Ga.  281. 

( Annotated ) 
•  2008.  In  an  action  by  a  lessee  against  the 
lessor  for  failure  to  give  possession  of  the 
leased  premises  at  the  time  stipulated  for 
the  commencement  of  the  term,  evidence 
that  other  premises  in  the  same  portion  of 
the  city  were  completed  and  ready  for  oc- 
cupancy at  the  time  fixed  for  the  commence- 
ment of  the  term,  and  offered  as  tending  to 
mitigate  damages,  is  properly  excluded  for 
failure  to  show  that  the  premises  could  have 
been  rented  by  the  lessee.  Huntington  Easy 
Payment  Co.  v.  Parsons,  9:  1130,  57  S.  E. 
253,  62  W.  Va.  26. 

2009.  In  an  action  for  both  actual  and 
punitive  damages  for  causing  the  ejection 
of  a  passenger  from  a  train,  his  arrest,  and 
his  fine  by  a  justice  of  the  peace,  the  com- 
plaint, warrant,  and  a  transcript  of  the 
record  of  the  justice  are,  after  the  plain- 
tiff has  testified  to  the  proceedings  before 
the  justice,  admissible  evidence  to  show 
what  those  proceedings  were  and  who  con- 
ducted them,  and  to  mitigate  the  damages, 
or  to  defeat  the  claim  therefor.  Thompkins 
V.  Missouri,  K.  &  T.  R.  Co.  52:  791,  211  I 
Fed.  391,  128  C.  C.  A.  1.  ' 

Digest   1-52  Ii.R.A.(N.S,) 


2010.  Evidence  of  the  appreciation  in 
value  of  the  property  because  of  the  im- 
provement is  not  admissible  in  mitigation 
of  damages  for  damming  back  water  upon 
abutting  property  by  the  constructing  of 
an  alley,  to  its  injury.  Ewing  v.  Louis- 
ville, 31:  612,  131  S.  VV.  1016,  140  Ky.  726. 

—  For  assault. 

2011.  A  defendant  in  an  action  for  assault 
and  battery  cannot  give  in  evidence,  in 
mitigation  of  punitive  damages,  the  exact 
words  of  insult  to  his  daughter  for  which 
the  assault  was  committed,  which  were  told 
to  him  some  time  after  he  learned  of  the 
insult  and  thirty  minutes  before  the  as- 
sault. Lovelace  v.  Miller,  11:  670,  43  So. 
734,   150  Ala.   422.  (Annotated) 

2012.  Evidence  of  insulting  language  by  a 
passenger  on  a  car,  which  induced  the  con- 
ductor to  assault  him,  is  admissible  in  evi- 
dence in  mitigation  of  damages  in  an  action 
against  the  carrier  based  on  the  assault. 
Jackson  v.  Old  Colony  Street  R.  Co.  30: 
1046,  92  N.  E.  725,  206  Mass.  477. 

—  For  libel  or  slander. 

2013.  The  fact  that  an  unauthorized  pub- 
lication of  one's  photograph  and  signature 
in  connection  with  a  patent  medicine  testi- 
monial was  made  innocently  and  in  good 
faith,  believing  the  signature  to  be  genuine, 
may  be  considered  in  mitigation  of  damages 
in  an  action  by  the  one  whose  signature  wa3 
used,  against  the  publisher.  Foster-Milburn 
Co.  v.  Chinn,  34:  1137,  120  S.  W.  364,  134 
Ky.  424. 

2014.  In  an  action  for  slander,  it  is  com- 
petent for  the  defendant  to  show  in  mitiga- 
tion of  damages  that,  at  the  time  of  the 
defamation  complained  of,  the  plaintiff's 
general  reputation  was  bad  with  respect  to 
the  matters  involved  in  the  charge  made 
against  him.  Wood  v.  Custer,  38:  1176,  121 
Pac,  355,  86  Kan.  387. 
Aggravation. 

2015.  Proof  of  seduction  cannot  be  made 
in  an  action  for  breach  of  promise  of  mar- 
riage, in  aggravation  of  damages.  Wrynn 
V.  Downey,  4:  615,  63  Atl.  401,  27  R.  I.  454. 

(Annotated) 

X.  Authority. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Presumption  and  burden  of  proof  as  to,  see 
supra,  II.  i. 

Opinion  evidence  as  to,  see  supra,  1192, 
1193. 

Evidence  of  custom  to  show  husband's  au- 
thority, see  supra,   1520. 

Admissibility  of  receipt  signed  by  agent, 
see  supra,  869. 

Sufficiency  of  evidence  as  to,  see  infra,  2226, 
2227.' 

2016.  In  an  action  to  hold  a  master  liable 
for  the  act  of  his  servant,  for  assaulting  an- 
other person  fishing  in  the  master's  pond, 
evidence  is  admissible  that  prior  to  the  as- 
sault the  servant  had  recognized  the  ri;jht 
of   the   injured   person   to   fish   there.     New 


EVIDENCE,  XI.  y,  z. 


1221 


Ellerslie    Fishing   Club   v.    Stewart,   9:  475, 
93  S.  W.  598,  123  Ky.  8. 

2017.  Evidence  that  a  former  member  of  a 
partnership  settled  a  note  which  had  been 
executed  by  his  copartner  in  the  firm  name 
after  a  dissolution  of  the  partnership  is 
admissible  in  a  suit  upon  another  note  of 
the  same  character,  as  tending  to  show  that 
he  had  recognized  the  copartner's  authority 
to  sign  notes  in  the  name  of  the  firm. 
Seufert  v.  Gille,  31:  471,  131  S.  W.  102,  230 
Mo.  453. 

2018.  Evidence  that  the  conductor  had  no 
authority  to  cause  the  detention  of  a  pas- 
senger as  a  witness  to  a  misdemeanor  on 
the  train  is  not  admissible  in  an  action  to 
hold  the  railroad  company  liable  for  false 
imprisonment  because  of  such  detention. 
New  York,  P.  &  N.  R.  Co.  v.  Waldron,  39: 
502,  82  Atl.  709,  116  Md.  441. 

2019.  Evidence  of  a  conversation  between 
a  tenant  of  premises  leased  with  a  defective 
coal  hole  in  the  sidewalk  and  the  one  col- 
lecting the  rent  for  the  property,  as  to  re- 
pairing the  defect,  is  admissible  in  an  ac- 
tion to  hold  the  landlord  liable  for  injuries 
caused  by  it,  as  tending  to  show  whether 
subsequent  repairs  were  made  by  authority 
of  the  landlord,  or  by  strangers.  Hill  v. 
Hayes,  i8:  375,  85  N.  E.  434,  199  Mass.  411. 

y.  Experiments. 

(See  aho   same  heading  in  Digest  L.R.A. 
1-10.) 

See  also  supra,  835. 

2020.  Evidence  of  an  experiment  made  by 
an  expert  to  determine  whether  or  not  a 
stab  in  the  body  of  a  murdered  person  sev- 
ered a  particular  vein  is  properly  excluded. 
Com.  v.  Tucker,  7:  1056,  76  N.  E.  127,  189 
Mass.  457. 

2021.  Evidence  of  experiment  to  test  the 
capacity  of  a  child  to  fire  a  pistol  is  ad- 
missible to  repel  evidence  of  one  accused  of 
murder,  going  to  show  that  the  child  fired 
the  pistol,  causing  the  homicide.  State  v. 
Woodrow,  2:  862,  52  S.  E.  545,  58  W.-  Va. 
527. 

2021a.  Upon  the  question  whether  or  not 
one  found  strangled  by  a  strap  in  his  barn 
met  death  by  accident  or  suicide,  evidence  is 
admissible  of  experiments  showing  that,  with 
the  strap  hanging  in  a  certain  manner,  an 
accidental  fall  upon  the  strap  would  tighten 
it  around  the  neck  three  times  out  of  four, 
where  the  custom  to  hang  the  strap  over  the 
peg  as  it  hung  in  the  experiment,  and  the 
fact  that  it  was  not  tied  around  the  neck 
of  decedent,  are  shown,  so  that  the  only  con 
dition  not  shown,  and  necessary  to  be  in- 
ferred to  make  the  conditions  in  the  ex- 
periment the  same  as  those  under  which 
the  death  occurred,  is  that  the  strap  hung 
in  the  form  of  a  loop.  Tackman  v.  Brother- 
hood of  A.  Y.  8:  974,  106  N.  W.  350,  132 
Iowa,  64.  (Annotated) 

Digest  1-52  I..R.A.(N.S.) 


z.  Miscellaneous. 

(See  also   same  heading  in  Digest  L.R.A. 
1-10.) 

To   impeach,   discredit,   or   corroborate   wit- 
ness, see  Witnesses,  III. 

2022.  In  an  action  for  libel,  it  is  not  com- 
petent to  prove  wide  and  general  circiiiation 
of  the  libel,  for  the  purpose  of  establishing 
the  falsity  of  the  charge  or  that  the  defend- 
ant was  responsible  for  the  libel.  Bigley  v. 
National  Fidelity  &  C.  Co.  50:  1040,  144  N. 
VV.  810,  94  Neb.  813. 

2023.  In  an  action  by  a  surgeon  to  recover 
for  services  rendered  to  a  stranger  who  had 
been  rendered  unconscious  by  an  accident, 
and  who  died  without  regaining  conscious- 
ness, evidence  is  not  admissible  that  de- 
cedent's estate  will  be  distributed  among 
collateral  relatives.  Cotnam  v.  Wisdom,  12: 
logo,  104  S.  W.  164,  83  Ark.  601. 

2024.  Evidence  that  a  trolley  pole  which 
struck  and  killed  a  conductor  was  moved 
farther  back  from  the  track  after  the  acci- 
dent, although  incompetent  to  show  an  im- 
plied admission  of  negligence,  is  admissible 
to  show  the  location  of  the  pole  at  the  time 
of  the  accident,  when  it  was  moved  before 
measurements  were  taken.  East  St.  Louis 
&  Suburban  R.  Co.  v.  Kath,  15:  1109,  83  N. 
E.  533,  232  111.  126. 

2025.  In  an  action  by  one  detained  un- 
lawfully and  against  her  will  in  a  reforma- 
tory institution,  to  recover  damages  for  the 
wrongful  imprisonment,  evidence  is  admis- 
sible as  to  efforts  of  her  relatives,  by  means 
of  detectives  and  advertisements,  to  ascer- 
tain her  whereabouts.  Gallon  v.  House  of 
Good  Shepherd,  24:  286,  122  N.  W.  631,  158 
Mich.  361. 

2026.  Upon  the  question  of  the  propriety 
of  permitting  the  adoption  of  a  child,  a 
resolution  of  the  State  Board  of  Charity 
as  to  its  course  with  respect  to  the  parents* 
control  of  the  religious  instruction  of  chil- 
dren under  control  of  the  board  is  imma- 
terial. Purinton  '.  Jamrock,  18:  926,  80  N. 
E.  802,  195  Mass.  187. 

2027.  The  statement  of  a  train  master  of 
a  railroad  tliat,  had  the  medical  examiner 
found  an  employee  to  have  been  adlicted 
with  color  blindness  he  would  have  re- 
ported that  fact  to  the  witness,  is  noi.  com- 
petent evidence  to  disprove  the  employee's 
contention  that  he  is  color  blind.  Kane  v. 
Chicago,  B.  k.  Q.  R.  Co.  36:  1145.  132  N.  W. 
920,  90  Neb.  112. 

2028.  Evidence  that  a  mortgagor  would 
have  sold  property  enough  to  pay  arrearages 
due  at  the  time  the  mortgagee  declared  the 
whole  sum  due  and  payable  for  nonpayment 
of  instalments,  if  the  mortgagee  had  exe- 
cuted releases  according  to  contract,  is  in- 
admissible in  an  action  to  foreclose  tlie 
mortgage,  since  the  right  to  a  release  was 
terminated  by  the  act  of  declaring  the  whole 
sum  due.  Bartlett  Estate  Co.  v.  Fairhaven 
Land  Co.  15:  590,  94  Pac.  900,  49  Wash.  58. 

2029.  Evidence  of  the  requirement  of  a  li- 
cense for  theaters  is  inadmissible  in  an  ac- 


1222 


EVIDENCE,  XI.  z. 


tion  for  services  rendered  by  a  fireman  at 
a  theater,  under  an  ordinance  making  the 
theater  manager  liable  for  the  value  of  such 
services.  Tannenbaum  v.  Rehm,  ii:  700,  44 
So.  532,  152  Ala.  494. 

2030.  In  an  action  in  which  it  is  sought  to 
recover  from  an  irrigation  company  sums 
paid  it  in  excess  of  a  reasonable  rate  for 
water  service,  evidence  which  tends  to  show 
the  efl'ect  of  the  rate  upon  those  to  whom 
service  is  rendered  is  relevant,  as  well  as 
facts  which  tend  to  throw  some  light  upon 
the  company's  necessary  expenses.  Salt 
River  Valley  Canal  Co.  v.  Nelssen,  12:  711, 
85  Pac.  117,  10  Ariz.  9. 

2031.  Evidence  as  to  shipments  of  freight 
upon  a  railroad  in  an  action  to  recover  back 
di.scri minatory  charges  is  not  inadmissible 
for  failure  to  fix  dates,  where  it  merely 
seeks  to  lay  a  foundation  on  which  t  )  show 
the  character  of  the  business,  the  character 
of  defendant's  roads  and  business,  and  plain 
tilfs  dealings  with  it.  Hilton  Lumber  Co. 
V.  Atlantic  Coast  Line  R.  Co.  6:  225,  53  S.  E. 
823,  141  N.  C.  171. 

2032.  That  a  particular  shipment  of  freight 
is  interstate  does  not  preclude  evidence  of 
the  rate  of  freight  charged  on  it  for  the 
purpose  of  showing  discrimination  against 
shipmi'nts  for  like  distances  on  other 
branches  of  the  road.  Hilton  Lumber  Co. 
V.  Atlantic  Coast  Line  R.  Co.  6;  925,  53  S 
E.  823,  141  N.  C.  171. 

2033.  Evidence  is  admissible  of  the  con- 
tents of  a  package  delivered  to  a  carrier  for 
transportation,  and  lost  by  it,  in  an  action 
for  tiie  value,  although  the  classification 
marks  on  it  were  erroneous.  Bottum  v. 
Charleston  &  W.  C.  R.  Co.  2:  773,  51  S.  E. 
985,  72  S.  C.  375. 

2034.  In  a  proceeding  to  open  a  street, 
which,  as  proposed,  would  result  in  a  mere 
cul-Ut-sac,  and  therefore  be  of  no  benefit 
to  the  public,  evidence  is  admissible  of  a 
proposal  to  extend  another  street  at  right 
angles  to  its  termination,  and  thereby  se- 
cure the  necessary  thoroughfare  and  public 
benefit.  Kansas  City  v.  Hyde,  7:  639,  96 
S.  W.  201,  196  Mo.  498. 

2035.  The  allowance  of  a  elaim  against  a 
bankrupt's  estate  is  not  evidence  against 
its  owner,  in  an  action  to  hold  a  stranger 
liable  thereon,  in  the  absence  of  anything 
to  show  that  he  was  responsible  for  listing 
the  claim  in  the  bankruptcy  proceedings. 
Walter  v.  Sperry,  44:  28,  85  Atl.  739,  86 
Conn.  474. 

2036.  A  real  estate  broker  against  whom 
suit  is  brought  to  compel  him  to  turn  ovei 
the  proceeds  of  land  sold  should  be  per- 
mitted to  prove  what  he  in  fact  received 
for  the  land.  Kvamme  v.  Barthell,  31: 
207,  118  N.  W.  766,  144  Iowa,  418. 

2037.  Evidence  as  to  the  commission  for 
securing  a  life  insurance  policy  is  imma- 
terial in  an  action  to  recover  a  statutory 
penalty  for  rebating,  where  the  rebate  was 
given  not  to  an  agent,  but  to  an  applicant. 
People  V.  Hartford  L.  Ins.  Co.  37:  778,  96  N. 
E.  1049,  252  111.  398. 

2038.  Evidence  that  one  accused  of  alien- 
ating the  affections  of  another's  husband 
Disest  1-52  I,.R.A.(N.S.) 


told  him  of  her  great  wealth  is  not  admis- 
sible in  an  action  to  recover  damages  for 
such  alienation,  if  there  is  nothing  to  show 
that  it  was  held  out  as  an  inducement  to 
him  to  desert  his  wife.  Pliilliijs  v.  Thomas, 
42:  582,   127   Pac.   97,  70   Wash.   533. 

2039.  Evidence  of  the  spreading  of  the 
solid  matter  irovk  a  sewage  purification 
plant  over  the  adjoining  ground  is  admis- 
sible under  a  complaint  for  operating  the 
plant  in  such  a  manner  as  to  constitute  a 
nuisance  to  neighboring  property,  where 
such  use  of  it  is  part  of  the  common  pur- 
pose of  those  operating  the  plant,  and  it 
is  immaterial  that  the  owner  of  the  plant, 
which  was  in  possession  of  a  lessee,  re- 
served the  right  to  change  or  enlarge  it  at 
any  time  it  saw  fit.  Adler  v.  Pruitt,  32: 
889,  53  So.  315,  169  Ala.  213. 

2040.  Evidence  tending  to  show  that  an 
upper  riparian  owner  is  using  water  from  a 
stream  sufficient  to  propel  machinery  not 
adapted  to  the  size  and  capacity  of  the 
stream  is  admissible  upon  the  trial  of  a 
suit  by  a  lower  owner  against  such  upper 
owner  for  damages  sustained  because  of  the 
unreasonable  diminution  and  detention  of 
tlie  water  in  the  stream.  Price  v.  High 
Shoals  Mfg.  Co.  22:  684,  64  S.  E.  87,  132  Ga. 
246. 

2041.  In  a  contest  between  the  applicant, 
the  maternal  grandfather,  for  guardianship 
of  a  child  of  tender  years  and  the  caveator, 
the  paternal  grandfather,  testimony  of  the 
wife  of  the  applicant,  to  the  effect  that  her 
daughter  "gave  her  [the  child]  to  me,"  is 
admissible  for  consideration  by  the  jury  in 
the  trial  of  the  issue  of  the  case.  Churchill 
V.  Jackson,  49:  875,  64  S.  E.  691,  132  Ga. 
666. 

2042.  In  a  contest  between  the  applicant, 
the  maternal  grandfather,  for  guardianship 
of  a  child  of  tender  years,  and  the  caveator, 
the  paternal  grandfather,  it  is  incompetent 
to  introduce  in  evidence  testimony  showing 
the  invalidity  of  the  will  of  the  child's  fa- 
ther which  had  previously  been  admitted 
to  probate.  Churchill  v.  Jackson,  49:  875, 
64  S.  E.  691,  132  Ga.  666. 

2043.  In  an  action  against  a  city  for  in- 
juries from  falling  on  an  icy  sidewalk  it  is 
not  error  to  introduce  in  evidence  the  char- 
ter of  the  city,  which  gives  it  the  power 
to  require  the  owner  or  occupant  of  any 
premises  to  keep  the  sidewalks  in  front  of 
and  along  the  same  free  from  snow  or  other 
obstruction,  or  the  ordinances  of  the  city 
which  provide  that  the  owners  and  occu- 
pants of  the  land  shall  clear  the  sidewalks 
of  all  accumulations  of  snow  and  ice  within 
ten  hours  after  the  same  have  fallen  or 
accumulated,  under  liability  to  a  fine;  the 
court  being  justified  in  assuming  that  such 
charter  and  ordinances  were  introduced  not 
for  the  purpose  of  prejudicing  the  jury,  and 
making  them  believe  that  the  owner  or  oc- 
cupant would  be  ultimately  liable  in  the 
action,  but  for  the  purpose  of  showing  an 
assumption  of  control  by^the  city,  and  its 
construction  of  its  duty  in  relation  to  the 
sidewalks  in  question,  as  well  as  the  right 
of  the  plaintiff  to  rely  upon  such  assump- 


EVIDENCE,  Xil.  a. 


1223 


tion.     Jackson  v.  Grank   Forks,  45:  75,  140 
N.  W.  7i8,  24  N.  D.  601. 

2044.  'llie  Doiuogeiieuus  business  of  a  mas- 
ter in  dismantling  maciiinery  in  the  different 
tuildings  of  a  world's  fair  cannot  be  di- 
vided iiuo  d.stiiicl  and  separate  departments, 
so  as  to  bring  it  within  a  rule  to  the  eHect 
that  the  superintendent  of  a  distinct  depart- 
ment of  a  vast,  diversified  business  may  be 
.a  vice  principal,  by  the  testimony  to  that 
effect  of  his  servants,  and  such  testimony 
is  incompetent  for  that  purpose,  as  the  na- 
ture of  the  business  alone  can  separate  it 
into  departments.  Westinghouse,  C  K.  & 
•Co.  V.  Callaghan,  19:  361,  83  C.  C.  A.  6G9, 
155  Fed.  397. 

2045.  A  witness  cannot  be  asked  how  a 
sample  of  oleomargarin  compares  in  color 
with  the  color  of  butter  manufactured  for 
•certain  markets,  for  the  purpose  of  showing 
that  it  resembles  yellow  butter.  State  v. 
Meyer,  14:  1061,  114  N.  W.  601,  134  Wis. 
156. 

XII.  Weight,    effect,    and   sufficiency. 

a.  In  general. 


(See  alao  same  heading  in  Digest  L.R.A. 
1-10.) 

Variance  between  pleading  and  proof,  see 
infra,  XIII.  d. 

:Sufficiency  of  assignment  of  error  as  to,  see 
Appeal  and  Error,  273-276. 

Presumption  on  appeal  as  to  sufficiency  of 
evidence,  see  Appeal  and  Error,  450. 

Heview  of  facts  on  appeal,  see  Appeal  and 
Error,  VII.  1. 

Effect  of  interest  of  witness  on  weight  and 
quality  of  his  evidence,  see  Appeal  and 
Error,  617. 

Eirst  objecting  to,  on  appeal,  see  Appf.al 
and  Error,  782,  783. 

Prejudicial  error  in  instruction  as  to  weight 
of  evidence,  see  Appeal  and  Error, 
1378,  1388. 

Instruction  as  to  weight  of  dying  declara- 
tions, see  Appeal  and  Error,  1389. 

•Certifying  question  as  to,  see  Cases  Cer- 
tified, 4. 

•Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  625,  626. 

Absence  of  testimony  to  support  complaint 
in  injunction  proceeding,  see  Injunc- 
tion, 424. 

Sufficiency  of  evidence  to  establish  necessity 
of  existence  of  hotel,  see  Innkeepers, 
1. 

Sufficiency  of  evidence  to  show  that  one  is 
not  a  bona  fide  tavern  keeper,  see  Inn- 
ki:epers,  2. 

Insufficiency  of  evidence  as  ground  for  va- 
cating judgment,  see  Judgment,  340. 

Sufficiency  of  preponderance  of  evidence  of 
truth  of  charge  to  justify  verbal  accu- 
sation, see  Libel  and  Slander,  176. 

As  ground  for  new  trial,  see  New  Trial, 
28-30. 

Remark  of  judge  as  comment  on  facts,  see 
Tbial,  '87. 

Digest  1-52  L.R.A.(N.S.) 


Sufficiency     to     overcome     presumption     as 

question  for  jury,  see  Irial,   161,  243, 

364,  366,  368. 
Instructions  as  to,  see  Trial,  944-953. 
Instructions  as  to  credibility  of  witnesses, 

see  Trial,  958-964. 
Sufficiency   of   evidence   to   go   to  jury,   see 

Trial,  II.  b. 
Credibility  of  witnesses,  see  Witnesses,  IV. 
See  also  supra,  1261. 

2046.  A  fact  may  be  established  by  incom- 
petent evidence,  if  it  is  material,  when  it  is 
received  without  objection.  Lindquiat  v. 
Dickson,  6:  729,  107  N.  W.  958,  98  Minn.  369. 

2047.  A  fact  may  be  established  by  in- 
competent evidence,  if  material,  where  it 
18  received  without  objection.  Plunkett  v. 
Jaggar,  25:  935,  100  Pac.  280,  81   Kan.  565. 

2048.  The  jury  is  not  absolutely  bound  by 
the  testimony  of  a  witness,  although  it  is 
not  contradicted  by  direct  evidence,  where 
the  evidence  itself  indicates  that  it  is  un- 
worthy of  belief.  Kennedy  v.  Modem 
Woodmen  of  America,  28:  181,  90  N.  E.  1084, 
243  111.  560. 

2049.  The  presumption  of  the  constitution- 
ality of  a  2-cent  passenger-rate  act  may  be 
rebutted  by  very  slight  evidence  when  it 
was  passed  without  investigation  and  in 
obedience  to  popular  agitation,  not  only  in 
the  state,  but  over  the  whole  country.  Penn- 
sylvania R.  Co.  v.  Philadelphia  County,  15: 
108,   68    Atl.   676,   220   Pa.    100. 

2050.  Evidence  offered  and  admitted  for 
the  purpose  of  showing  that  a  jjarticular 
matter  has  been  litigated  and  judginent  ren 
dered  thereon  cannot  be  cori.sidered  for  any 
other  purpose.  William  Deering  &  Co.  v. 
Mortell,  16:  352,  110  N.  W.  86,  21  S.  D.  159. 

2051.  Weight  will  be  given  to  corroborated 
statements  of  persons  suffering  from  the 
effects  of  a  personal  injury,  although  they 
are  made  while  under  great  pain,  and  at 
the  persistent  importunity  of  one  alleged 
to  be  responsible  for  the  injury,  if  they  are 
made  after  time  for  reflection.  IVforris  v. 
Illinois  C.  R.  Co.  31:629,  53  So.  698,  127 
La.  445. 

2052.  A  judgment  in  favor  of  plaintiff  can- 
not, in  the  absence  of  any  explanation  of  the 
inconsistency,  be  based  on  evidence  given  by 
him  which  is  materially  inconsistent  with 
his  testimony  on  a  former  trial,  upon  a 
matter  within  his  personal  knowledge,  and 
which  supplies  a  weakness  in  the  case  as 
first  made.  Smith  v.  Boston  Elevated  R. 
Co.  37:  429,  184  Fed.  387,  106  C.  C.  A.  497. 

2053.  A  prosecution  for  the  violation  of 
a  city  ordinance  which  does  not  embrace 
any  offense  made  criminal  by  the  laws  of 
the  state,  although  in  form  a  criminal 
prosecution,  is,  in  fact,  a  civil  proceeding 
to  recover  a  penaltj;  and  proof  beyond  a 
reasonable  doubt  is  not  required  to  sus- 
tain a  conviction,  but  clear  and  satisfactory 
proof  that  the  offense  has  been  committed 
is  sufficient.  Peterson  v.  State,  14:  292,  112 
N.  W.  306,  79  Neb.  132. 

2054.  No  corroboration  of  the  testimony  of 
relatrix  in  a  bastardy  proceeding  is  neces- 
sary   to    warrant    a    conviction.     Evans    v. 


1224 


EVIDENCE,  XII.  b. 


State  ex  rel.  Freeman,  2:  619,  74  N.  E.  244, 

165  Ind.  369. 

Expert  testimony;   opinions. 

See  also  supra,  1165;  infra,  2114. 

2055.  The  ultimate  weight  to  be  given  to 
the  opinion  of  an  expert  is  for  the  jury, 
which  may  accept  it,  or  reject  it  and  act 
upon  its  own  judgment  as  applied  to  the 
general  evidence  in  the  case.  Alabama  G. 
S.  R.  Co.  V.  McKenzie,  45:18,  77  S.  E. 
647,  139  Ga.  410. 

2056.  Expert  evidence  as  to  a  matter  of 
which  a  layman  can  have  no  knowledge, 
such  as  post  mortem  digestion,  must  be  de- 
pended upon  by  the  court  and  jury,  and 
cannot  arbitrarily  be  cast  aside,  where 
there  is  no  contradictory  evidence.  Flege  v. 
State,  47:  1 106,  142  N.  W.  276,  93  Neb.  610. 

2057.  The  court  will  not  determine,  as 
matter  of  common  knowledge,  that  a  train 
which  comes  into  collision  with  and  in- 
jures a  person  on  the  track  might  have  been 
stopped  more  quickly  than  it  was  by  re- 
versing the  engine,  where  the  engineer  tes- 
tifies that,  although  the  engine  was  not 
reversed,  the  most  eflacient  means  for  quick- 
ly stopping  the  train  were  employed.  Har- 
ris v.  Nashville,  C.  &  St.  L.  Railway,  14: 
261,  44  So.  962,  153  Ala.  139.  (Annotated) 
Cironmstances. 

Failure  to  instruct  as  to  weight  of  circum- 
stantial evidence,  see  Appkai.  and 
Ebrob,  1436,  1437. 

Positive  and  nesative. 

See  infra,  2239. 

b.  Cause  and  effect. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Presumption  and  burden  of  proof,  see  supra, 
II.  g. 

2058.  That  firemen  would  have  been  able 
to  prevent  the  destruction  of  a  building  by 
fire  had  they  not  been  interfered  with  may 
be  found  by  the  fact  that  the  buildings  on 
fire  were  small  and  burned  slowly,  and  that, 
but  foiv  the  interference,  they  would  have 
reached  the  scene  seventeen  minutes  before 
the  building  in  question  began  to  burn,  and 
would  have  been  fully  equipped  to  fight  the 
fire.  Houren  v.  Chicago,  M.  &  St.  P.  R.  Co. 
20:  mo,  86  N.  E.  611,  236  111.  620. 

2059.  The  jury  will  not  be  permitted  to  in- 
fer the  buckling  of  a  freight  train  and  the 
falling  of  a  car  in  the  path  of  another  train 
on  the  adjoining  track  from  the  fact  that 
the  train,  consisting  of  68  cars,  proceeding 
up  grade  7  or  8  miles  an  hour,  was  stopped 
in  5  or  6  car  lengths  by  the  application  of 
air  Irakes  to  the  first  half  of  the  cars, 
depending  upon  their  inertia  to  arrest  the 
motion  of  the  other  cars.  Lewis  v.  Penn- 
sylvania R.  Co.  18:  279,  69  Atl.  821,  220  Pa. 
317. 

2060.  Evidence  that  a  carrier,  by  delay  in 
transporting  a  horse,  exposed  it  to  cold  and 
stormy  weather,  and,  for  five  or  six  hours 
after  the  arrival  of  the  animal  at  the  end 
of  its  line,  neglected  to  deliver  it  to  the 
Digest   1-52  Ii.R.A.(N.S.) 


consignor,  who  paid  the  charges  and  de- 
manded possession  of  the  animal,  which  had 
become  ill,  and  which  thereafter  died  of 
pneumonia,  is  sufficient  to  sustain  a  finding 
that  the  carrier's  delay  constituted  negli- 
gence proximately  causing  the  death  of  the 
horse.  Wente  v.  Chicago,  B.  &  Q.  R.  Co. 
15:  756,  115  N.  W.  859,  79  Neb.  179. 
Fires. 
See  also  supra,  2058. 

2061.  The  jury  may  find  that  the  contents 
of  a  building  were  set  on  fire  between  the 
beginning  and  ending  of  an  earthquake 
which  lasted  forty-five  seconds,  from  evi- 
dence that  from  four  to  five  minutes  after 
the  shock  the  contents  were  burning  with 
a  good  body  of  fire,  and  that  there  were 
live  electric  wires  running  into  the  building. 
Davis  V.  Connecticut  F.  Ins.  Co.  32:  604, 
112  Pac.  549,  158  Cal.  766. 

—  Set  by  locomotive. 

2062.  That  a  fire  which  communicated  tO' 
and  destroyed  adjacent  property  was  set 
out  by  a  railroad  locomotive  may  be  found 
from  evidence  that  immediately  after  a 
train  passed,  fire  was  seen  on  the  right  of 
way.  New  York,  C.  &  St.  L.  R.  Co.  v. 
Roper,  36:  952,  96  N.  E.  468,  176  Ind.  497. 

2063.  The  jury  may  find  that  a  fire  was  set 
out  by  a  passing  locomotive  from  evidence 
that,  at  the  time  of  its  passing,  it  was  throw- 
ing out  large  quantities  of  sparks,  that  oth- 
er fires  had  been  discovered  at  tlie  same 
place  soon  after  the  passing  of  locomotives,, 
and  that  the  fire  complained  of  was  discov- 
ered in  inflammable  material  negligently  al- 
lowed to  accumulate  on  the  right  of  way,  al- 
though the  discovery  was  not  made  until  the 
lapse  of  a  considerable  time  after  the  pass- 
ing of  the  locomotive.  Hawley  v.  Sumpter 
Valley  R.  Co.  12:  526,  90  Pac.  1106,  49  Or. 
509. 

2064.  Where  the  evidence  in  an  action 
against  a  railroad  company  for  damages 
due  to  fire  shows  that  the  locality  where 
the  fire  was  claimed  to  have  started  was 
uninhabited,  that  the  fire  was  discovered 
in  the  dry  grass  on  and  adjacent  to  the 
right  of  way  almost  immediately  after  the 
train  passed,  and  where  other  causes  are 
fairly  negatived,  the  evidence  is  sufficient  to 
justify  the  conclusion  that  the  fire  was  set 
by  the  locomotive  that  had  just  passed. 
Farrell  v.  Minneapolis  &  R.  R.  R.  Co.  45: 
215,  141  N.  W.  491,  121  Minn.  357. 

2065.  Mere  proof  that  fire  which  destroyed 
neighboring  property  originated  on  the 
right  of  way  of  a  railroad  is  not  sufficient 
to  hold  the  railroad  company  liable  for 
the  loss,  where  the  statute  makes  it  liable 
for  damages  caused  by  fire  originating  from 
engines,  from  that  set  out  by  employees 
under  direction  of  the  company,  or  other- 
wise originating  in  the  construction  or 
operation  of  the  road.  Hewitt  v.  Pere  Mar- 
quette R.  Co.  41:635,  137  N.  W.  66,  171 
Mich.  211. 

2066.  That  fire  to  neighboring  property- 
was  communicated  by  the  engines  of  a  rail- 
road company  may  be  found  from  the  facta 
that  the  fire  was  discovered  shortly  after 
locomotives  had  passed,  and  that  pieces  of 


EVIDENCE,  XII.  b. 


1225 


<;oke  and  cinders  with  the  heat  of  fire  still 
in  them  were  found  at  the  place  where  the 
fire  originated.  Jensen  v.  South  Dakota 
■C.  R.  Co.  35:  1015,  127  N.  W.  650,  25  S.  D.  506. 
Personal  injuries. 
Presumption  and  burden  of  proof  as  to,  see 

supra,  324-329, 
Provision  in  policy  as  to  evidence  required, 

see  Insurance,  723. 
Sufficiency   of   evidence  to   go  to   jury,   see 

Trial,  142. 

2067.  Proof  of  the  existence  of  a  nail  pro- 
jecting from  the  floor  near  a  machine  a 
week  after  an  employee  stumbles  over  some- 
thing at  that  point  and  falls  into  the  ma- 
•chine  to  his  injury  will  justify  a  finding  that 
it  was  there  at  the  time  of,  and  was  the 
■cause  of,  the  accident.  Young  v.  Snell, 
19:  242,  86  N.  E.  282,  200  Mass.  242. 

2068.  In  an  action  by  a  track  repairer 
struck  by  a  switch  engine,  to  recover  dam- 
ages for  the  injury  sustained,  the  evidence 
is  insufficient  to  sustain  a  verdict  based  on 
the  ground  that  the  engine  was  operated  at 
■a.n  excessive  rate  of  speed,  where  the  per- 
son injured  testified  that  he  did  not  observe 
the  approach  of  the  engine,  and  therefore 
could  not  have  relied  upon  the  observance 
of  the  custom  to  operate  engines  in  the 
yards  at  a  certain  rate  of  speed.  Joyce  v. 
Great  Northern  R.  Co.  8:  756,  110  N.  W. 
976,   100  Minn.  225. 

2069.  The  master's  negligence  in  failing  to 
guard  a  machine  is  sufficiently  shown  to 
have  been  the  proximate  cause  of  an  injury 
where  circumstantial  evidence  tended  di- 
rectly to  show  that  the  servant  received 
such  injury  by  coming  in  contact  with  an 
unguarded  belt  and  pulley,  in  the  absence 
■of  a  showing  of  any  other  cause  to  require 
a  jury  finding  as  to  whether  it  was  negli- 
gence not  to  provide  a  guard,  and  whether, 
if  that  negligence  was  proved,  it  was  the 
proximate  cause  of  the  injury.  Rase  v. 
Minneapolis,  St.  P.  &  S.  Ste.  M.  R.  Co. 
21:  138,  120  N.  W.  360,  107  Minn.  260. 

2070.  The  inability  of  a  helper  on  a  com- 
plicated machine  to  understand  the  lan- 
guage of  his  superior  may  be  found  to  be 
the  cause  of  the  latter's  loss  of  fingers,  cut 
off  by  the  machinery,  where  they  were 
caught  in  such  a  way  as  to  be  fastened, 
but  not  injured,  and  the  superior  directed 
the  helper,  whose  duty  it  was  to  do  so,  to 
put  the  power  off  from  the  machine,  but 
the  latter,  not  knowing  the  situation,  and 
not  understanding  the  directions,  started 
the  machine,  cutting  off  the  fingers.  Beers 
T.  Prouty,  20:  39,  85  N.  E.  864,  200  Mass.  19. 
Death. 

Presumption  and  burden  of  proof,  see  su- 
pra, 152-156,  327,  329. 

Sufficiency  of  evidence  to  go  to  jury,  see 
Trial,  101. 

"See  also  infra,  2377. 

2071.  It  is  not  necessary,  in  order  to  re- 
■cover  for  death  alleged  to  have  been  occa- 
sioned by  the  negligent  administration  of 
■chloroform,  to  exclude  other  possible  causes, 
it  being  enough  to  show  that  this  was  the 
probable  cause.  Boucher  v.  Larochelle,  15: 
416,  68  Atl.  870,  74  N.  H.  433.  (Annotated) 
Digest  1-52  I..R.A.(N.S.) 


2072.  Death  by  inhalation  of  gas  by  a 
miner  is  sufficiently  shown  by  evidence  that 
it  was  present  in  a  drift,  that  another  was 
overcome  by  it,  and  that  deceased  in  at- 
tempting to  rescue  him  was  also  overcome 
and  died,  that  others  of  the  rescuing  party 
were  more  or  less  aff'ected  by  it,  and  were 
finally  obliged  to  make  use  of  helmets  before 
they  succeeded  in  effecting  the  rescue.  Da 
Rin  V.  Casualty  Co.  27:  1164,  108  Pac.  649, 
41  Mont.  175. 

—  By  defective  htgliTiray. 

2073.  The  jury  may  find  that  a  person 
found  in  a  river  bed  after  he  had  attempted 
to  drive  across  the  bridge  was  precipitated 
there  because  of  absence  of  barriers  or 
guard  rails  upon  the  bridge  approach,  al- 
though there  is  no  direct  evidence  upon  the 
subject,  if  the  circumstances  proved  are 
such  as  to  render  such  conclusion  more 
probable  than  that  it  was  due  to  some  other 
3ause.  Magee  v.  Jones  County,  48:  141, 
142  N.  W.  957,  161  Iowa,  296. 

2074.  Absence  of  barriers  on  the  bridge 
approach  may  be  found  to  be  the  cause  of 
injury  to  a  person  who  lost  consciousness 
when  driving  a  gentle,  blind  horse  towards 
the  bridge,  and  was  afterwards  found,  to- 
gether with  the  horse  and  wagon,  on  the 
river  bottom,  since  it  may  be  assumed 
that  barriers  would  have  turned  the  horse 
and  prevented  it  going  off  the  side  of  the 
aoproach.  Magee  v.  Jones  County,  48:  141, 
142  N.  W.  957,  161  Iowa,  296. 

—  By  railroad  oar. 

2075.  Direct  evidence  of  eyewitnesses  is  not 
necessary  to  establish  the  fact  that  a  per- 
son found  dead  on  a  railroad  track  was 
killed  by  a  car.  Southern  R.  Co.  v.  Cap- 
linger,  49:  660,  152  S.  W.  947,  151  Ky.  749. 

2076.  A  pedestrian  in  a  street  in  the  night 
may  be  found  to  have  been  killed  by  a  car 
making  a  flying  switch,  from  evidence  of 
a  train  hand  that,  after  the  engine  passed, 
he  saw  the  pedestrian  start  across  the  track 
in  the  path  of  the  following  car,  when  his 
vision  was  obscured  by  smoke,  and  a  few 
minutes  later  his  body  was  found  at  about 
the  point  where  the  car  would  naturally 
have  struck  him.  Southern  R.  Co.  v.  Cap- 
linger,  49:  660,  152  S.  W.  947,  151  Ky.  749. 

—  Of  insured. 

2077.  Though  the  condition  of  the  heart 
of  one  insured  in  an  accident  insurance  pol- 
icy may  have  been  such  as  more  readily  to 
permit  a  rupture  thereof  through  a  fall,  it 
not  having  been  shown  that  death  would 
have  ensued  at  the  time  it  did  but  for  the 
accident,  a  jury  is  warranted  in  finding  that 
the  accident  was  the  proximate  cause  of 
the  death.  Moon  v.  Order  of  United  Com- 
mercial Travelers,  52:  1203,  146  N.  W.  1037, 
96  Neb.  65. 

2078.  That  a  person  delirious  from  fever 
fell  from  a  window  to  his  death  does  not 
establish  suicide  as  matter  of  law,  since 
the  presumption  against  self-destruction  is 
sufficient  to  sustain  a  finding  that  the  fall 
was  accidental,  and  not  intentional.  Bohaker 
V.  Travelers'  Ins.  Co.  46:543,  102  N.  E.  342, 
215  Mass.  32. 


1226 


EVIDENCE,  XII.  c. 


2079.  The  injuries  which  caused  the  death 
of  a  person  may  be  found  to  have  resulted 
in  part  from  the  burning  of  a  building, 
within  the  meaning  of  a  policy  of  accident 
insurance,  where  he  went  into  it  to  perform 
some  work,  and  was  found  a  short  time 
afterward  unconscious  in  it,  badly  burned, 
and  having  inhaled  smoke  and  flame,  and 
at  the  time  he  was  found  the  floor  and  roof 
of  the  room  where  he  was  were  more  or 
less  burned.  Wilkinson  v.  ^tna  L.  Ins. 
Co.    25:  1256,   88    N.    E.    550,   240    111.    205. 

2080.  The  facts  and  circumstanced  of  a 
drowning  accident  are  suflicientlj*  estab- 
lished, within  the  meaning  of  an  accident-in- 
surance policy  limiting  the  amount  of  re- 
covery in  case  they  are  not  so  established, 
where  witnesses  testify  to  having  seen  de- 
ceased in  a  cranky  canoe,  with  a  companion, 
within  three  or  four  minutes  of  the  time 
of  accident,  and  to  having  seen  the  over- 
turned canoe  and  evidence  of  its  having  re- 
cently capsized,  within  a  few  minutes  after 
it,  although  they  did  not  actually  see  the 
craft  overturn.  Lewis  v.  Brotherhood  Acci- 
dent Co.  17:  714,  79  N.  E.  802,  194  14as«.  1. 

o.  Fraud  or  good  faith;  malice f  undue 
influence. 

(See  aUo  same  heading  «•»  Digest  LM..A. 
1-10.) 

Fraud  or  good  faith. 

Presumption  and  burden  of  proof  as  to,  see 

supra,  II.  e,  7. 
Sufficiency  of  evidence  to  take  question  to 

jury,  see  Trial,  104,  113-120. 
See  also  infra,  2099,  2103,  2219. 

2081.  The  discharge,  of  one  guilty  of  felony 
and  arrested  without  a  warrant  is  not  con- 
clusive proof,  in  an  action  for  false  impris- 
onment, that  the  prosecution  was  not  begun 
in  good  faith.  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Hinsdell,  12:  94,  90  Pac.  800,  76  Kan.  74. 

2082.  To  establish  fraud  which  will  permit 
the  controlling  of  a  written  contract  by  a 
contemporaneous  parol  agreement,  the  evi- 
dence must  be  clear  and  satisfactory.  Lep- 
ley  v.  Andersen,  33:  836,  125  N.  W.  433, 
142  Wis.  668.  (Annotated) 

2083.  One  seeking  an  accounting  of  profits 
for  infringement  of  his  trademark  is  not 
barred  from  claiming  that  he  had  not  been 
guilty  of  fraud  which  would  prevent  his  re- 
covery by  isolated  facts  brought  out  on  the 
hearing  before  the  master,  avowedly  for  an- 
other purpose,  and  with  no  view  to  raising 
that  issue.  Nelson  v.  J.  H.  Winchell  &  Co. 
23:  1 1 50,  89  N.  E.  180,  203  Mass.  75. 

2084.  Testimony  as  to  the  income  of  a  busi- 
ness for  a  certain  year  will  not  be  credited 
as  a  basis  for  defeating  a  recovery  for  false 
representations  concerning  it  in  efTecting  a 
sale  of  the  business  in  the  absence  of  the 
books,  which  are  missing  through  no  fault  of 
the  purchaser.  Smith  v.  Werkheiser,  15: 
1092,  115  N.  W.  964,  152  Mich.  177. 

2085.  An  architect's  certificate  for  work 
nay  be  found  not  to  h«ve  been  withheld  in 
good  faith,  where  the  work  was  accepted 
Digest  1-5^  Ii.R.A.(N.S.) 


and  used  for  several  years  without  objec- 
tion, until  an  attempt  was  made  to  enforce 
a  iiieclian'cs'  lien  upon  the  pioi^eity  to  s.-c-m  e 
compensation  for  it.  Thaler  v.  Willielra 
Greisser  Constr.  Co.  33:  345,  79  Ath  147,. 
229   Fa,  512. 

2086.  In  a  suit  by  a  grantor  to  set  aside- 
a  deed  as  fraudulently  procured,  where  the 
oral  evidence  of  the  parties  relating  direct- 
ly to  the  execution  of  the  insLrunient  is- 
llatly  contradictory  and  wholly  irreconcil- 
able, circumstances  bearing  on  the  issufr 
must  be  allowed  unusual  prominence  and 
efl'ect,  and  their  controlling  force  be  made 
to  depend  more  upon  their  character  and 
power  to  create  mental  impression  than 
upon  their  number  and  variety.  Hale  v. 
Hale,  14:  221,  59  S.  E.  1056,  62  W.  Va.  609. 

—  In  procuring  release. 
Admissibility  of  evidence,  see  supra,  1669,. 

1670. 

2087.  That  a  release  of  liability  for  negli- 
gently killing  a  person  was  induced  by 
fraud  may  be  found  from  the  fact  that  the^ 
responsible  person  represented  that  his  at- 
torney, having  full  knowledge  of  the  cir- 
cumstances and  cause  of  action,  said  that. 
there  was  no  liability  for  the  death,  and 
that  the  person  signing  the  release  need  not 
go  to  the  expense  of  looking  up  the  facta 
and  seeking  advice,  but  migiit  settle  the 
case  upon  the  opinion  of  such  attorney^ 
Olston  v.  Oregon  Water  Power  &  R.  Co.  20: 
915,  96  Pac.   1095,  97   Pac.  538,  52  Or.  343. 

2088.  Evidence  that  on  the  day  following, 
that  on  which  a  railway  passe. iger  was  in- 
jured, while  in  the  railway  company's  hospi- 
tal, away  from  friends  and  while  still  suffer- 
ing from  the  effects  of  the  injuries,  the  ex- 
tent of  which  she  did  not  know  and  was  ap- 
parently not  in  a  position  to  ascertain,  she- 
was  visited  by  a  claim  agent  and  physician 
of  the  railway  company,  who,  desiring  t(y 
effect  a  settlement  and  to  induce  plaintiff  ta 
sign  a  release  for  a  grossly  inadequate  sum, 
represented  that  her  injuries  were  slight  and 
temporary,  when  in  fact  they  were  serioua 
and  dangerous,  as  the  physician  knew,  or 
should  have  known  in  the  exercise  of  proper 
care,  which  representations,  being  believed, 
induced  the  signing  of  the  release,  which 
would  not  have  been  done  had  the  true  con- 
dition been  known  to  plaintiff, — sufficiently 
sustained  a  finding  that  the  release  was  pro- 
cured by  fraud.  St.  Louis  &  S.  F.  R.  Co. 
v.  Richards,  23:  1032,  102  Pac.  92,  23  Okla. 
256. 

—  Frand  of  creditors. 

2089.  Compliance,  by  the  grantee,  with  a 
request  by  a  grantor  of  property  to  witii- 
hold  the  deed  from  record,  does  not  estab- 
lish fraud  on  the  part  of  the  grantee,  where 
there  is  nothing  in  the  circumstances  to  ex- 
cite suspicion  on  his  part.  Beechley  v. 
B^echley,  9:  955,  108  N.  W.  762,  134  Iowa, 
75. 

2090.  A  jury  is  warranted  in  finding  that 
a  sale  of  hay  to  be  stored  in  the  seller's^ 
barn  was  mn'o  in  good  faith,  where  the 
buyers,  who  employed  a  number  of  horses- 
in  different  localities,  moving  from  place  to- 
place,   did   not   need   the   hay    immediately^ 


EVIDENCE,  XII.  c. 


1227 


the  place  was  convenient  for  stoi-age,  the 
price  paid  was  fair,  and  tlie  method  of  es- 
timating the  quantity  by  measurement  was 
convenient  and  approximately  correct. 
Barber  v.  Andrews,  26:  i,  69  Atl.  1,  29  R.  I. 
51. 

2091.  Collusion  in  the  payment  of  a  check 
on  an  insolvent  bank  is  not  shown  by  the 
fact  that  the  cashier  refused  to  pay  it  when 
presented,  but  put  the  funds  aside  for  future 
payment,  and  that  the  president  of  the  bank 
went  with  the  depositor  in  the  night  to 
secure  the  fund,  but  failed,  so  that  it  was 
not  paid  until  in  the  usual  course  of  busi- 
ness after  the  bank  had  opened  the  follow- 
ing morning.  Wilson  v.  Baker  Clothing  Co. 
50:239.  137  Pac.  896,  25  Idaho,  378. 

2092.  Evidence  that  an  officer  of  an  insol- 
vent corporation  overdrew  his  account  with 
the  corporation,  and  paid  the  amount  in 
discharge  of  an  alleged  indebtedness  to  his 
son,  who,  knowing  the  source*  from  whence 
the  money  came,  deposited  it  in  a  bank,  is 
sufhcient  to  support  a  finding,  in  an  action 
by  the  trustee  in  bankruptcy  of  the  corpora- 
ti'  n,  that  the  money  on  deposit  is  the  prop- 
erty of  the  bankrupt  corporation.  Drew  v. 
Myers,  17:  350,  116  N.  W.  781,  81  Neb.  750. 

2093.  A  finding  that  property  of  a  corpo- 
ration organized  to  brew  and  sell  beer  was 
conveyed  to  the  secretary  of  tlie  corpora- 
tion to  evade  responsibility  for  previous 
infractions  of  the  laws  of  the  state  where 
the  property  was  located  is  supported  by 
proof  that  tlie  secretary  advised  the  sale  to 
avoid  "trouble  and  complications,"  that  the 
property  was  used  for  the  sale  of  the  corpo- 
ration's beer  after  the  conveyance  precise- 
ly as  it  had  been  used  before,  that  the  cor- 
poration furnished  bar  fixtures  for  such 
property,  both  before  and  after  the  convey- 
ance, upon  which  it  paid  taxes,  and  that  tlie 
property  was  looked  after  and  the  rents  col- 
lected by  the  same  agent,  the  only  differ- 
ence being  that  he  accounted  therefor  to 
the  secretary  instead  of  to  the  corporation. 
State  ex  rel.  Jackson  v.  Wm.  J.  Lemp  Brew. 
Co.  29:  44,  102  Pac.  504,  79  Kan.  705. 

2094.  An  agreement  for  a  payment  to  an 
inspector  of  an  insolvent  estate,  to  influence 
his  consent  to  an  arrangement  which  is  not 
for  the  general  benefit  of  the  creditors,  is 
of  itself  sufiicient  reason  for  adjudging  the 
transaction  to  induce  which  it  was  made,  to 
be  corrupt,  fraudulent  and  void.  Brigham 
V.  La  Banque  Jacques  Cartier,  2  B.  R.  C. 
449,  30  Can.  S.  C.  429. 

Malice. 

Presumption  and  burden  of  proof,  see  su- 
pra, II.  e,  6. 

Sufficiency  of  evidence  to  take  question  to 
jury,  see  Trial,  104. 

2095.  To  hold  a  man  liable  for  causing  his 
son  to  separate  from  his  wife,  the  mensure 
of  proof  of  malice  must  be  greater  than  is 
necessary  in  case  of  a  mere  stranger.  Ickes 
V.  Ickes,*  44:  1118,  85  Atl.  885,  237  Pa.  582. 

2096.  A  servant  of  a  railroad  company 
may  be  found  not  to  have  been  free  from 
malice  in  cutting  telephone  wires  across  the 
tracks,  so  as  to  be  absolved  from  criminal 
liability,  although  he  acted  under  direction 
Sisest  1-52  I<.R.A.(N.S.) 


of  his  employer,  where  the  wires  did  not 
interfere  with  the  movement  of  trains  or 
endanger  employees,  and  he  had  been  told 
by  the  telephone  company  not  to  touch  the 
wires,  and  warned  of  the  consequence.  Alt 
v.  State,  35:  1212,  129  N.  \V.  432,  88  Neb. 
259. 

2097.  Evidence  that  a  landowner,  when  re- 
quired to  raise  a  cement  walk  in  front  of 
his  lot  to  conform  with  the  grade  of  a 
walk  erected  in  front  of  an  adjoining  lot, 
stated  that  he  would  erect  a  fence  between 
the  lots,  and  that  he  did  so  erect  a  high 
board  fence,  although  there  previously  was 
a  wire  fence  on  the  line  between  the  lots, 
and  a  failure  on  his  part  to  show  any  useful 
purpose  or  any  other  object  in  building  the 
fence  than  to  punish  the  adjoining  owner 
and  others  for  causing  the  raising  of  the 
walk,  is  sufficient  to  show  that  the  fence 
was  not  built  for  any  useful  purpose,  but 
for  the  sole  purpose  of  annoying  and  pun- 
ishing the  adjoining  owner.  Bush  v.  Mock- 
ett,  52:  736,  145  N.  W.  1001,  95  Neb.  552. 
—  In    making    libelous    or    slanderous 

statement. 

2098.  Mere  falsity  of  a  statement  made  by 
one  having  a  qualified  privilege  is  not  suffi- 
cient to  establish  malice.  Trimble  v.  Moor- 
ish, 16:  1017,  116  N.  W.  451,  152  Mich.  624. 

2099.  The  good  faith  of  a  newspaper  in 
publishing  defamatory  matter  may  be  estab- 
lished by  showing  that  it  was  furnished 
by  a  reliable  reporter  of  long  experience, 
and  was  accepted  and  published  as  a  news 
item  in  reliance  upon  its  truth.  Courier- 
Journal  Co.  V.  Phillips,  32:  309,  134  S.  W 
446,  142  Ky.  372. 

2100.  Statements  by  the  president  of  a 
federation  of  women's  clubs,  upon  a  priv- 
ileged occasion  of  a  consultation  as  to 
methods  of  suppressing  theft  at  meetings 
of  a  local  club,  with  respect  to  a  particular 
person,  that,  although  tliere  was  no  posi- 
tive proof,  she  was  convinced;  that  the 
suspect's  husband  had  "paid  her  out  be- 
fore," and,  as  a  reason  for  the  conduct, 
that  she  was  "as  poor  as  Job's  turkey," 
are  not  per  se  evidence  of  malice.  Hay  den 
V.  Hasbrouck,  42:  1109,  84  Atl.  1087,  34  R. 
I.  556. 

2101.  The  mere  expression  in  a  communi- 
cation to  voters  of  a  desire  to  defeat  a  cer- 
tain candidate  for  office  is  not  suiTicient  to 
show  a  malicious  motive  for  the  publica- 
tion, so  as  to  render  the  publisher  aiisner- 
able  for  libel  in  case  there  are  false  state- 
ments in  the  publication,  tending  to  injure 
the  candidate,  where  there  was  probable 
cause  for  the  statements.  Schull  v.  Hop- 
kins, 29:  691,  127  N.  W.  550,  26  S.  D.  21. 

2102.  Probable  cause  for  charging  a  candi- 
date for  re-election  to  the  office  of  state's 
attorney  with  unfitness  for  office  because  of 
unwillingness  to  prosecute  gamblers  exists 
where  he  was  seen  about  gambling  places, 
did  not  act  upon  complaints  against  gam- 
blers, and  locked  his  doors  against  a  com- 
mittee seeking  to  interview  him  upon  tlie 
subject.  Schull  v.  Hopkins,  29:  &91,  127 
S.  W.  550,  26  S.  D.  21. 


1228 


EVIDENCE,  XII.  d. 


Undue   inflnence. 

Presumption  and  burden  of  proof,  aee  supra, 

II.  e,  7. 
Presumption  and  burden  of  proof  as  to,  see 

supra,  282-291. 
Sufficiency  of   evidence  to  go  to  jury,  see 

Tbial,  116-118. 

2103.  Where  in  an  action  to  set  aside  the 
assignment  of  a  mortgage  from  a  husband 
to  his  wife  on  the  ground  of  fraud  and  un- 
due influence,  the  wife  testifies  as  to  the 
assignment,  and  there  is  an  absence  of  evi- 
dence of  undue  influence,  mental  incapacity, 
or  that  the  wife  procured  her  husband  to 
assign  the  mortgage  by  acts  of  misrepre- 
sentation or  fraud,  although  the  mortgage 
was  not  acknowledged,  the  evidence  is  in- 
sufficient to  sustain  a  finding  that  the  as- 
signment was  not  executed  by  the  assignor. 
Wellendorf  v.  Wellendorf,  43:  1144,  139  N. 
W.  812,  120  Minn.  435. 

2104.  A  finding  of  undue  Influence  in  se- 
curing an  adoption  by  a  woman  of  the  son 
of  her  husband  by  a  former  wife  is  sup- 
ported by  evidence  that  the  husband,  being 
her  physician  and  she  an  invalid,  married 
her  after  she  had  secured  a  divorce  from  a 
former  husband,  about  which  she  was  pecu- 
liarly sensitive,  and  within  a  few  months 
threatened  to  leave  her  unless  she  would 
adopt  his  son,  which  under  the  circum- 
stances she  could  not  bear,  and  that  she 
subsequently  said  many  times  that  she  was 
forced  to  adopt  the  son  against  her  will. 
Phillips  V.  Chase,  30:  159,  89  N.  E.  1049, 
203  Mass.  556. 

—  In  execution  of  ^v^ill. 

2105.  Suspicion,  conjecture,  possibility,  or 
guess  that  undue  influence  or  fraud  has  in- 
duced a  will  is  not  sufficient  to  support  a 
verdict  to  that  effect.  Ginterv.  Ginter,  22: 
1024,  101  Pac.  634,  79  Kan.  721. 

2106.  In  proving  undue  influence  in  the 
execution  of  a  will,  a  contestant  is  not  lim- 
ited to  the  bare  facts  which  he  may  be  able 
to  adduce,  but  he  is  entitled  to  the  benefit 
of  all  inferences  which  may  be  legitimately 
derived  from  the  established  facts.  Ginter 
v.  Ginter,  22:  1024,  101  Pac.  634,  79  Kan. 
721. 

2107.  Proof  of  undue  influence  in  the  ex- 
ecution of  a  will  must  be  so  substantial 
that  the  judges  of  fact,  having  a  proper 
understanding  of  what  undue  influence  is, 
may  perceive  by  whom  and  in  what  man- 
ner it  has  been  exercised,  and  what  effect 
it  has  had  upon  the  will.  Ginter  v.  Ginter, 
22:  1024,  101  Pac.  634,  79  Kan.  721. 

2108.  Undue  influence  in  securing  the  ex- 
ecution of  a  will  need  not  be  shown  by  di- 
rect proof,  but  may  be  established  by  proof 
of  facts  from  which  it  may  be  rationally  in- 
ferred. Meier  v.  Buchter,  6:  202,  94  S.  W. 
883,  107  Mo.  68. 

d.  Negligence;  skill;  care. 

(See  also   same   heading   in  Digest  L.R.A 
1-10.) 

Presumjjtion  and  burden  of  proof,  see  su- 
pra, II.  h. 
Digest  1-52  L.R.A.(N.S.) 


Admissibility  of  opinion  evidence  as  to,  see 
supra,  VII.  j. 

Admissibility  of  evidence  generally,  see  su- 
pra, XI.  h. 

Evidence  as  to  cause  of  fire,  see  supra, 
2061-2066. 

Evidence  as  to  cause  of  injury,  see  supra, 
2067-2070. 

Evidence  as  to  cause  of  death,  see  supra, 
2071-2080. 

Violation  of  ordinance  as  evidence  of  negli- 
gence, see  Stkb:et  Railways,  29,  30,  35. 

Sufficiency  of  evidence  to  go  to  jury,  see 
Trial,  123-150. 

Fact  that  warehouse  is  not  burglar-proof 
as  evidence  of  negligence,  see  Ware- 
housemen, 5. 

2109.  The  keeping  of  a  dog,  with  knowl- 
edge on  the  part  of  the  owner  or  his  wife 
that  the  same  had  bitten  or  attempted  to 
bite  one  or  several  persons  prior  to  the  time 
of  the  attack  upon  the  plaintiff,  is  evidence 
sufficient  to  support  a  verdict  rendered  on 
an  instruction  declaring  a  defendant  liable 
if  he  had  notice,  either  actual  or  construc- 
tive, of  the  vicious  and  dangerous  character 
of  the  dog.  Ayers  v.  Macoughtry,  37:  865, 
117  Pac.  1088,  29  Okla.  399. 

2110.  A  property  owner  may  be  found  to 
have  been  negligent  in  making  repairs  to 
the  gutter  of  a  leased  building  to  stop  a 
leak,  if  the  leak  continued  after  the  repairs 
the  same  as  before.  Shute  v.  Bills,  7:  965, 
78  N.  E.  96,  191  Mass.  433. 

2111.  The  mere  fact  that  a  building,  the 
walls  of  which  one  has  contracted  to  un- 
derpin while  an  excavation  is  made  on  an 
adjoining  lot,  falls  during  the  progress  of 
the  work,  does  not  establish  such  negligence 
on  his  part  as  to  render  him  liable  for  the 
injury  thereby  caused  to  a  tenant  of  the 
building.  Kennedy  v.  Hawkins,  25:  606,  102 
Pac.   733,   54   Or.    164. 

2112.  Where  the  evidence  is  conflicting  as 
to  the  speed  of  an  automobile,  but  there 
is  some  evidence  that  it  was  going  so  fast 
that  it  could  not  make  a  turn  on  the  right 
side  of  the  street,  and  proof  that  it  collided 
with  a  vehicle  on  the  left  side,  the  driver  of 
which  was  free  from  negligence,  a  verdict 
against  the  driver  of  the  automobile  is 
justified.  Molin  v.  Wark,  41:346,  129  N. 
W.  383,  113  Minn.  190. 

2113.  The  mere  fact  that  a  customer  in  a 
meat  market  slipped  on  a  piece  of  meat  in 
the  sawdust  on  the  floor  does  not  show 
negligence  on  the  part  of  the  market  keeper 
which  will  render  him  liable  for  the  result- 
ing injuries,  if  there  is  nothing  to  show 
how  the  meat  got  upon  the  floor,  or  how 
long  it  had  been  there,  and  a  man  was  con- 
stantly at  work  keeping  the  floor  clean,  and 
the  sawdust  on  it  was  changed  twice  a 
dav.  Norton  v.  Hudner,  44:  79,  100  N.  E. 
546,  213  Mass.  257. 

2114.  The  opinion  of  the  owner  of  a  mill 
that  there  was  danger  of  fire  being  set  by 
the  smokestack,  expressed  in  a  letter  urg- 
ing the  owner  of  neighboring  property  to 
protect  his  roofs,  is  not  of  much  probative 
weight  upon  the  question  of  his  negligence 


EVIDENCE,  XII.  d. 


1229 


In  maintaining  the  stack,  as  against  the 
fact  that  the  plant  was  constructed  on  ap- 
proved plans,  and,  for  a  period  of  seven- 
teen years,  no  live  spark  had  been  known 
to  escape  from  the  chimney  nor  any  fire  to 
be  set  by  it.  American  Ice  Co.  v.  South 
Gardiner"  Lumber  Co.  32:  1003,  79  Atl.  6, 
107   Me.  494. 

2115.  The  fact  that  a  powerful  man  suffer- 
ing from  delirium  treinens  is  left  in  an  in- 
secure apartment  in  a  hospital  in  charge 
of  a  woman  powerless  to  restrain  him,  the 
hospital  authorities  knowing  his  condition 
and  that  such  a  person  may  reasonably  be 
expected  to  become  violent,  uncontrollable, 
and  dangerous  at  any  time,  is  evidence  of 
negligence  upon  which  a  jury  may  base  a 
verdict,  in  an  action  against  the  hospital 
because  of  injuries  due  to  his  assault  on  a 
copatient.  University  of  Louisville  v.  Ham- 
mock, 14:  784,  106  S.  W.  219,  127  Ky.  564. 
Of  manufacturer  or  seller. 
Admissibility  of  evidence,  see  supra,  1773. 

2116.  That  other  mixtures  dangerous  to  be 
used  on  hot  stoves  had  been  sold  for  that 
purpose  without  warning  is  not  evidence 
that  it  was  not  negligence  to  sell  for  that 
purpose  a  particular  mixture  without  warn- 
ing. Wolcho  V.  A.  J.  Rosenbluth  &,  Co.  ai: 
571,  71  Atl.  566,  81  Conn.  358. 

21 17.  That  one  selling  a  composition  con- 
taining benzin  for  a  stove  enamel  has  not  in 
two  or  three  years'  experience  heard  of  an 
accident  from  its  use  does  not  disprove  his 
negligence  in  selling  it,  with  knowledge  of 
its  character  and  the  danger  of  its  use, 
without  any  warning  thereof  to  his  patrons. 
Wolcho  V.  A.  J.  Rosenbluth  &  Co.  21:  571, 
71  Atl.  566,  81  Conn.  358. 

Of  druggist. 

2118.  A  druggist  may  be  found  to  have 
been  wanting  in  the  exercise  of  due  care  in 
filling  a  prescription  from  an  opened  bottle 
of  tablets  bearing  the  manufacturer's  label, 
where  two  similar  bottles  containing  tab- 
lets stand  side  by  side,  but  the  tablets  in 
the  two  are  strikingly  different  in  appear- 
ance, and  those  from  which  he  fills  the  pre- 
scription have  an  extraordinary,  if  not  un- 
precedented, color  for  that  kind  of  tablets. 
Tremblay  v.  Kimball,  29:900,  77  Atl.  405, 
107  Me.  53. 

Of  master  teivards  servant. 

■Presumption  and  burden  of  proof  as  to  neg- 
ligence, see  supra,  II.  h,  1,  e. 

Sufficiency  of,  to  show  negligence  in  failing 
to  promulgate  rules,  see  Master  and 
Servant,  208. 

Contributory  negligence  of  servant,  see  in- 
fra, 2173,  2176. 

Sufficiency  of  evidence  to  take  case  to  jury, 
see  Trial,  142-147. 

See  also  infra,  2220. 

2119.  An  admission  by  an  employer  that 
the  accidental  injury  of  a  workman  was  his 
fault,  and  not  that  of  the  workman,  is  not 
alone  sufficient  to  establish  the  employer's 
negligence.  Binowicz  v.  Haglin,  15:  1096, 
115  N.  W.  271,  103  Minn.  297.      (Annotated) 

2120.  That  a  workman  last  seen  while 
standing  on  some  small  boards  in  a  build- 
ing which  was  in  process  of  construction 
Digest  1-52  I..R.A.(N.S.) 


was  found,  a  few  hours  later,  in  the  base- 
ment underneath,  seriously  injured,  does 
not  show  negligence  on  the  part  of  the  em- 
ployer, where  there  was  no  eyewitness  to 
the  occurrence,  and  the  memory  of  the 
workman  was  destroyed  by  the  fall.  Bine- 
wicz  V.  Haglin,  15:  1096,  115  N.  W.  271,  103 
Minn.  297. 

2121.  Mere  proof  that  a  master  was  using 
machinery  of  a  certain  kind,  and  that  an 
accident  happened  to  an  employee  in  its  use, 
does  not  tend  to  show  negligence,  unless  it 
is  coupled  with  some  evidence  not  mere 
speculation  that  it  was  not  properly  per- 
forming its  functions.  Phoenix  Printing  Co. 
V.  Durham,  38:  1191,  122  Pac.  708,  32  Okla. 
575. 

2122.  That  an  appliance  was  not  safe  to 
use  in 'loading  iron  plates  into  a  vessel  may 
be  found  from  the  fact  that  it  dropped 
them  repeatedly.  Johnson  v.  Griffith- 
Sprague  Stevedoring  Co.  8:  432,  88  Pac.  193, 
46  Wash,  278. 

2123.  That,  upon  examination  of  the  place 
at  which  an  employee  stumbled  and  fell 
into  a  machine  to  his  injury,  a  nail  was 
found  projecting  from  the  floor,  will  justify 
a  finding  that  a  proper  inspection  before  the 
accident  would  have  disclosed  its  presence 
to  the  employer.  Young  v.  Snell,  19:  242, 
86  N.  E.  282,  200  Mass.  242. 

2124.  The  unfitness  of  a  part  of  a  staging 
to  be  used  by  employees,  and  the  fact  that 
the  employer  should  have  been  aware  of  the 
defective  condition,  may  be  found  from  the 
fact  that  it  was  worn,  rotten,  and  unfit  for 
use.  Donahue  v.  Buck,  18:  476,  83  N.  E. 
1090,   197   Mass.   550. 

—  As  to  explosions. 

2125.  To  maintain  an  action  for  the  death 
of  an  employee  through  the  explosion  of 
dynamite  negligently  stored  in  a  room  pro- 
vided for  his  use,  plaintiff  is  not  bound  to 
demonstrate  the  manner  in  which  the  ex- 
plosives were  ignited.  Brown  v.  West  River- 
side Coal  Co.  28:  1260,  120  N.  W,  732,  143 
Iowa,  662. 

2126.  A  master  may  be  found  to  be  negli- 
gent in  using  a  single  room  of  a  small 
shanty  for  the  convenience  and  slielti  r  of 
workmen,  for  the  storage  of  dynamite,  and 
for  the  installation  of  a  telephone,  the  elec- 
tricity from  the  wires  of  which  may  cause 
an  explosion  of  the  dynamite.  Brown  v. 
West  Riverside  Coal  Co.  28:  1260,  120  N. 
W.    732,    143   Iowa,   662. 

—  As  to  guarding  machinery. 

2127.  Evidence  that  a  guard  is  actually 
used  on  a  particular  kind  of  machine  is 
sufficient  to  show  the  practicability  of  a 
guard  on  such  machines.  Streeter  v.  West- 
ern Wheeled  Scraper  Co.  41:  628,  98  N.  E. 
541,  254  111.  244. 

2128.  The  gearing  of  a  system  of  live  rol- 
lers to  carry  lumber  from  a  saw  may  be 
found  to  be  insufficiently  guarded  where  the 
only  guard  employed  is  an  inch  board 
nailed  along  its  upper  edge  to  the  edge  of 
another  inch  board,  which  forms  part  of 
the  table  carrying  the  rollers,  without  sup- 
ports at  the  lower  edge  or  at  the  ends,  while 
the  work  requires  employees  to  lean  against 


1230 


EVIDENCE,  XII.  d. 


the  guard  in  such  a  way  as  to  spring  the 
lower  edge  inward,  and  the  material  passing 
over  the  rollers  had  a  tendency  to  strike 
against  and  loosen  it  from  the  table.  West 
V.  Bayfield  Mill  Co.  45:134,  128  N.  W. 
992,  144  Wis.  106. 

—  As  to  elevator. 

2129.  To  enable  a  servant  to  hold  his  master 
liable  for  an  injury  due  to  the  sudden 
and  erratic  movement  of  an  elevator  about 
which  he  is  required  to  work,  he  must  show 
that  such  movement  was  due  to  a  defect 
in  the  mechanism  which  was  known,  or 
should  have  been  known,  to  the  master,  and 
which  he  neglected  to  repair;  to  establish 
which  the  mere  happening  of  the  accident 
is  not  sufficient.  Carnegie  Steel  Co.  v. 
Byers,  8:  677,  149  Fed.  667,  82  C.  C.  A.  115. 

—  Railroad  companies. 
Incompetency  of  fellow  servant,  see  infra, 

2140,  2141. 
,{'2130.  The  testimony  of  employees  work- 
ing about  standing  cars,  with  knowledge  of 
the  danger  when  such  cars  are  to  be  shifted, 
that  no  warning  was  given  of  intention  to 
shift  at  a  certain  time,  is  not  merely  nega- 
tive, but  may  sustain  a  verdict  based  on 
absence  of  such  warning,  against  positive 
evidence  that  the  warning  was  given. 
Philadelphia,  B.  &  W.  R.  Co.  v.  Gatta,  47: 
932,  85  Atl.  721,  —  Del.  — . 

2131.  Negligence  on  the  part  of  a  railroad 
company  may  be  found  from  evidence  that 
a  side  bar  on  an  engine  broke  when  the  en- 
gine was  in  motion,  and  injured  an  em- 
ployee in  the  cab,  and  that  the  engine  was 
old  and  out  of  repair,  that  its  wheels,  bush- 
ings, and  bearings  were  worn,  and  that  it 
pounded  while  at  work.  McCuUough  v. 
Chicago,  R.  I.  &  P.  R.  Co.  47:  23,  142  N. 
W.    67,   160   Iowa,   624.. 

2132.  That  a  coupler  on  a  railroad  car 
was  so  worn  and  defective  as  to  permit  the 
train  to  part  indicates  negligence  on  the 
part  of  the  railroad  company,  in  an  action 
by  an  employee  to  hold  it  liable  for  injuries 
caused  by  such  parting,  which,  unless  ex- 
plained, will  justify  the  jury  in  holding  it 
responsible  for  the  injiiry.  Callahan  v. 
Chicago,  B.  «t  Q.  R.  Co.  47:  587,  133  Pac. 
687,  47  Mont.  401. 

2133.  There  is  sufficient  evidence  to  sup- 
port a  verdict  for  the  plaintiff  in  an  action 
by  a  brakeman  against  a  railway  company 
for  injuries  resulting  from  falling  from  a 
car  because  of  the  slipping  from  its  shaft 
of  a  pulley  on  threshing  machinery  on  tht 
car,  which  he  grasped  for  support,  where  it 
is  in  evidence  that  it  was  a  part  of  the 
duty  of  one  of  the  railway  company's  car 
inspectors  to  see  that  such  machinery  was 
safely  loaded,  and  that  everything  connected 
with  it  was  in  good  condition  for  the  train 
men,  and  it  does  not  appear  that  the  load 
on  this  car  had  ever  been  examined  or  in- 
spected in  any  manner.  Suprenant  v.  Great 
Northern  R.  Co.  49:  loii,  143  N.  W.  320,  123 
Minn.  170. 

2134.  No  recovery  can  be  had  on  circum- 
stantial evidence  for  the  death  of  a  switch- 
man killed  at  a  switch,  on  the  theory  that 
his  foot  was  caught  between  the  rails  be- 
Digest  1-52  I^B.A.CN.S.) 


cause  of  defective  blocking,  if  the  circum- 
stances shown  are  equally  consistent  with 
the  theory  that  he  slipped  on  icy  ground 
and  fell  in  front  of  the  car,  or  that  he  at- 
tempted to  board  the  moving  train  and 
fell  under  it.  Neal  v.  Chica^'o,  R.  I.  &  P. 
R.  Co.  2:  905,  105  N.  W.   197,   129  Iowa,  5. 

(Annotated) 

2135.  A  cause  of  action  against  a  railroad 
company  for  injuries  to  a  brakeman  by  the 
derailment  of  a  train  is  not  established  by 
evidence  that  one  of  the  trucks  under  the 
car  was  defective,  without  showing  winch 
one,  and  that  a  defective  forward  truck 
might  have  caused  the  accident  witliout 
showing  that  it  was  so  caused.  Henson  v. 
Lehigh  Valley  R.  Co.  19:  790,  87  N.  E.  85, 
194  N.  Y.  205. 

2136.  Evidence  that  a  bolt  was  missing 
from  a  car  which  had  been  in  a  wreck,  after 
it  had  been  removed  to  the  railroad  yards,  is 
not  sufficient  to  charge  the  railroad  com- 
pany with  negligence  which  would  render  it 
liable  for  injuries  growing  out  of  the  wreck, 
although  the  absence  of  such  a  bolt  migat 
be  found  to  increase  the  chance  of  the  ac- 
cident which  occurred.  Henson  v.  Lehigh 
Valley  R.  Co.  19:  790,  87  N.  E.  85,  194  N.  Y. 
205. 

—  Street  railxray   companies. 

2137.  In  an  action  by  a  motorman  of  an 
electric  street  car  for  damages  for  personal 
injuries  caused  by  his  car  running  upon  a 
curve  with  such  speed  as  to  derail  and  cap- 
size it,  thereby  causing  the  injuries  com- 
plained of,  where  the  issue  is  wheiher  a 
shock  of  electricity  passing  through  him 
from  his  hand  on  the  controller,  and 
through  his  foot,  resting  upon  the  metaliic 
dog  of  the  hand  brake  produced  temporary 
paralysis,  by  reason  of  which  he  was  de 
prived  of  control  of  the  car,  any  presump- 
tion of  negligence  arising  from  the  applica- 
tion of  the  maxim.  Res  ipsa  loquitur,  is  re- 
butted by  affirmative  testimony,  inter  alia, 
that  the  car  had  been  used  without  similar 
trouble  for  twenty  days  before,  and  months 
after,  the  occurrence  of  the  accident,  during 
which  time  the  car  was  shown  to  have  been 
in  the  same  condition  as  at  the  time  of  the 
accident,  that  it  was  of  standard  type,  and 
made  by  a  reputable  manufacturer,  and  that 
it  had  been  subjected  to  all  reasonable, 
practical,  and  usual  inspection.  Jenkins  v. 
St.  Paul  City  R.  Co.  ao:  401,  117  N.  W. 
928,  105  Minn.  504. 

—  Incompetency  or  negligence  of  f el- 

loxir  servant. 

2138.  The  incompetence  of  a  servant  whioh 
will  render  a  master  liable  for  injury  caused 
to  a  fellow  servant  by  his  negligence  may 
be  established  by  evidence  of  reputation, 
although  the  alleged  incompetence  did  not 
arise  until  after  his  lawful  employment. 
Rosen.stiel  v.  Pittsburg  Railways  Co.  33: 
751,    79   Atl.    556,   230   Pa.    273. 

(Annotated) 

2139.  One  sent  to  help  operate  a  compli- 
cated machine  may  be  found  incompetent,  so 

1  as  to  render  the  master  liable  for  injury  to 

I  his    superior    through    his    act,    where    he 

could   not    understand   the   language   of   his 


EVIDENCE,  XII.  d. 


1231 


•siiperior,  and  the  operation  of  the  machine 
required  two  men  and  the  frequent  stopping, 
■cleaning,  and  starting  of  it,  in  the  accom 
plishment  of  wiiieh  directions  to  him  from 
tlie  superior  were  necessary.  Beers  v. 
Prouty,  20:  39,  85  N,  E.  864,  200  Mass.  19. 

(Annotated) 

2140.  The  incompetence  of  a  railroad  con- 
ductor may  be  found  from  evidence  that, 
although  he  had  worked  in  several  capaci- 
ties on  the  railroad  for  some  time,  he  had 
only  recently  been  placed  in  charge  of  a 
scheduled  train,  with  nothing  to  show  that 
he  was  instructed,  or  knew,  that,  when  di- 
rected to  pass  an  inferior  train  at  a  par- 
ticular point  by  special  order,  he  was  bound 
to  await  its  arrival;  and  that,  upon  arriv- 
ing at  thp  meeting  place  under  such  order, 
and  not  finding  the  other  train  there,  he 
directed  the  engineer  to  go  forward,  under 
the  general  rule  that  trains  moving  in  the 
direction  that  his  train  was  going  had  the 
right  of  way,  and  inferior  trains  from  the 
opposite  direction  must  keep  out  of  the 
way.  Still  v.  San  Francisco  &  N.  W.  R. 
Co.  20:  322,  98  Pac.  672,  154  Cal.  559. 

2141.  Ihe  jury  may  find  negligence  where 
one  of  the  men  lifting  a  hand  car  from  the 
track  prematurely  drops  it  without  warn- 
ing, to  the  injury  of  a  coservant,  in  viola- 
tion of  the  custom  not  to  drop  the  car  un- 
til ordered  to  do  so  after  all  are  ready  to 
act  together.  Cahill  v.  Illinois  C.  R.  Co. 
28:  1 121,  125  N.  W.  331,  148  Iowa,  241. 

2142.  An  accident  to  a  workman  due  to 
the  fall  of  a  staging  may  be  found  to  be  due 
to  neglect  in  superintendence,  where  it  was 
constructed  according  to  the  directions  of 
one  who  designated  the  stock  and  supplies 
to  be  used  on  th'^  job  and  despatched  the 
men  thereto,  and  who  knew,  or  by  the  exer- 
cise of  reasonable  diligence  ought  to  have 
known,  that  a  part  of  the  scaffold  which  he 
directed  to  be  used  was  defective.  Dona- 
hue V.  Buck,  18:  476,  £3  N.  E.  1090,  197 
Mass.  550. 

Of  servf»nt  rendering  master  liable. 

2143.  Evidence  that  the  servants  of  a  tele- 
phone company,  when  resisted  by  a  person 
in  placing  a  telephone  pole  in  a  boulevard 
in  front  of  a  house,  pulled  a  pike  from 
a  hole  which  had  been  prepared,  and  pushed 
it  down  again,  thereby  causing  injury  to  the 
person  who  was  in  the  hole;  and  that  while 
the  person  was  bending  over  to  prevent  the 
insertion  of  the  pole  in  the  hole,  such  serv- 
ants rushed  with  the  pole  and  struck  her, 
either  with  the  pole  or  with  a  pike,  is  suffi- 
cient to  sustain  a  verdict  for  such  person 
against  the  telephone  company,  upon  the 
theory  that  she  was  injured  through  the 
wanton  negligence  of  the  servants.  South- 
er V.  Northwestern  Teleph.  Exch.  Co.  45: 
601,  136  N.  W.  571,  118  Minn.  102. 

2144.  That  one  is  responsible  for  a  wilful 
trespass  which  injured  another  is  not  shown 
by  evidence  that  his  superintendent  was 
seen  talking  with  the  men  at  work,  gestur- 
ing, and  measuring  with  a  tape  line.  Besse- 
mer Coal.  Irnti.  ^  Land  Co.  v.  Doak,  12:  389, 
44  So.  627,  152  Ala.  168. 

Dieest   1-52  L.R.A.(N.S.) 


Of  carriers. 

Presumption    and    burden    of    proof    as   to, 

see  supra,  II.  h,  1,  b. 
Sutiiciency  of  evidence  to  take  question  to 

jury,  see  Trial,  138-141. 
See  also  infra,  2312. 

2145.  Mere  proof  of  derailment  of  a  train, 
to  the  injury  of  a  gratuitous  passenger, 
without  anything  to  show  the  circumstances 
under  which  it  took  place,  is  not  sufficient 
to  show  gross  negligence  suflicient  to  charge 
the  carrier  of  such  passenger  with  liability 
for  his  injury  on  that  ground.  John  v. 
Northern  P.  R,  Co.  32:  85,  111  Pac.  632, 
42  Mont.   18. 

2146.  Where  the  plaintiff,  in  attempting  to 
alight  from  a  railroad  passenger  coach,  from 
which  others  had  alighted  before  and  after 
her,  missed  her  footing  and  fell  between 
the  car  step  and  platform  of  the  station 
and  was  injured,  the  mere  proof  that  other 
railroads  constructed  car  steps  and  plat- 
forms of  a  different  type,  without  any 
proof  of  the  existence  of  a  recognized  stand- 
ard type,  will  not  charge  the  defendant  with 
negligence.  Kingsley  v.  Delaware,  L.  &  W. 
R.  Co.  (N.  J.  Err.  &  App.)  35:  338,  80 
Atl.  327,  81  N.  J.  L.  536. 

2147.  A  finding  that  the  conductor  of  an 
electric  street  car  was  guilty  of  such  wan- 
tonness as  to  authorize  a  recovery  against 
the  company,  regardless  of  any  question  of 
contributory  negligence,  is  authorized  by 
evidence  that  he  ran  his  car  without  stop- 
ping past  a  station  and  upon  a  bridge,  know- 
ing that  a  man  was  riding  outside  of  the  car 
in  such  a  position  that  he  would  necessarily 
be  struck  by  a  beam  of  the  bridge,  and 
severely,  and  probably  fatally,  injured. 
Harbert  v.  Kansas  City  Elevated  R.  Co.  50: 
850,    138   Pac.   641,   91    Kan.    605. 

2148.  The  jury  may  find  that  a  railroad 
company  which  is  notified  that  the  door  of 
the  ear  from  which  it  has  undertaken  to 
make  a  delivery  of  freight  is  in  bad  condi- 
tion is  negligent  in  failing  to  discover  the 
defect  and  either  remedy  it  or  guard  against 
injury  from  it,  so  as  to  be  liable  to  one 
injured  while  in  the  act  of  receiving  proper- 
ty from  the  car.  Ladd  v.  New  York,  N. 
H.  &  H.  R.  Co.  9:  874,  79  N.  E.  742,  193 
Mass.   359. 

2149.  Evidence  that,  at  a  railroad  station 
where  cattle  in  shipment  were  frequently 
detained  at  night,  it  was  customary  for 
persons  accompanying  live  stock  in  transit 
to  walk  back  and  forth  over  the  yards  be- 
tween their  cars  and  the  depot,  is  sufficient 
to  justify  a  finding  that  the  company  owed 
a  duty  to  such  persons  so  engaged  to  give 
warning  of  the  approach  of  a  train.  Losey 
V.  Atchison,  T.  &  S.  F.  R.  Co.  33:  414,  114 
Pac.  198,  84  Kan.  224. 

—  As  to  baggage. 

2150.  Indifference,  amounting  to  wanton 
disregard  of  the  passenger's  rights,  may  be 
found  from  evidence  that,  in  attempting  to 
carry  his  baggage  between  two  points  not 
far  apart,  one  agent  put  it  off  the  train  at 
the  wrong  place,  and  two  others  failed  to 
check  up  their  lists  of  baggage,  so  that  the 
error    was    not    discovered    for    about    four 


1232 


EVIDENCE,  XII.  d. 


days.     Webb  v.  Atlantic  Coast  Line  R.  Co. 
9:  1218,  56  S.  E.  954,  76  S.  C.  193. 

2151.  A  finding  that  a  railway  company 
was  guilty  of  negligence  in  caring  for 
trunks  which,  on  their  arrival,  were  placed 
in  the  freight  room  of  the  station  house,  is 
justified  by  evidence  that  in  one  corner  of 
the  room  was  an  oil  tank  and  waste,  and  a 
bench  on  which  switch  lamps  were  placed 
and  filled  with  oil  by  a  young  boy,  and  that 
the  bench  and  floor  were  saturated  with  oil, 
and  that  the  fire  which  consumed  the  trunks 
was  the  second  one  which  had  originated  in 
the  room  that  day.  McKibbin  v.  Wisconsin 
C.  R.  Co.  8:  489,  110  N.  W.  964,  100  Minn. 
270. 

—  As  to  freiglit. 

2152.  That  a  refrigerator  car  loaded  with 
berries  reached  its  destination  with  its  ice 
bunkers  practically  empty  is  sufficient  to 
warrant  a  finding  of  negligence  against  the 
carrier.  C.  C.  Taft  Co.  v.  American  Exp. 
Co.   10:  614,  110  N.  W.  897,  133  Iowa,  522. 

2153.  Negligence  upon  the  part  of  a  car- 
rier contributing  to  the  injury  to  goods 
damaged  by  a  flood  amounting  to  an  act  of 
God,  suflScient  to  render  the  carrier  liable 
for  such  damage,  is  not  shown  by  proof  that 
it  received  the  car  containing  the  goods, 
which  were  in  good  condition,  on  a  certain 
day,  in  the  regular  course  of  business,  and 
that  the  car  was  tendered  to  the  connecting 
carrier  upon  the  following  day,  when  it  was 
not  accepted  because  of  the  inability  of 
such  carrier  to  handle  it.  Armstrong  v. 
Illinois  C.  R.  Co.  29:  671,  109  Pac,  216,  26 
Okla.   352. 

2154.  Negligence  of  a  carrier  of  cattle  is 
sufficiently  shown  to  render  it  liable  for  the 
injury,  where  the  cattle  are  shown  to  have 
been  delivered  to  it  in  a  sound  condition, 
and  delivered  by  it  so  bruised  that  the  jury 
may  reasonably  infer  that  the  injuries  were 
caused  by  the  rough  handling  of  the  car- 
rier's train,  although  the  shipper  accom- 
panied the  consignment,  so  that  the  burden 
was  on  him  of  showing  that  the  injuries 
were  caused  by  the  carrier's  negligence,  and 
not  by  the  stock  itself  or  the  negligence  of 
the  shipper.  Carstens  Packing  Co.  v.  South- 
ern P.  Co.  27:  975,  108  Pac.  613,  58  Wash. 
239. 

Of  railroad  companies. 

Presumption  and  burden  of  proof  as  to,  see 

supra,  II.  h,  1,  c. 
Evidence  as  to  cause  of  fire,  see  supra,  2062- 

2066. 
Negligence   towards   railway   employee,   see 

supra,  2130-2136. 
Sufficiency  of  evidence  to  go  to  jury,   see 

Trial,  II.  c,  8,   (c),   (2). 

2155.  That  an  engineer  of  a  railroad  loco- 
motive knew  that  he  knocked  a  man  off  the 
track  is  not  sufficient  to  show  that  he  saw 
him  in  time  to  warn  him  of  his  danger, 
where  the  engine  was  running  in  tlie  night 
at  great  speed,  in  the  face  of  a  storm  of 
snow  and  sleet,  with  the  headlight  giving 
little  or  no  light  along  the  track.  Frye  v. 
St.  Louis,  I.  M.  &  S.  R.  Co.  8:  1069,  98  S. 
W.  566,  200  Mo.  377. 

2156.  A  finding  of  negligence  on  the  part 
Digest  1-52  L.B.A.(N.S.) 


of  a  railroad  company  in  constructing  its 
roadbed  across  a  ravine  is  supported  by  evi- 
dence that,  before  such  construction,  surface 
water  from  neighboring  land  flowed  off 
through  the  ravine,  and  that,  after  its  con- 
struction, the  water  was  thrown  back  upon 
such  land,  rendering  a  portion  of  it  unfit  for 
cultivation.  Quinn  v.  Chicago,  M.  &  St.  P. 
R.  Co.  22:  789,  120  N.  W.  884,  23  S.  D.  126. 

2157.  Where  a  railway  track  is  laid  across 
a  traveled  public  street  in  a  city,  a  duty 
arises  on  the  part  of  the  railway  company 
using  it  to  exercise  ordinary  care  to  dis- 
cover and  avoid  injury  to  persons  or  prop- 
erty rightfully  on  such  crossing,  so  that, 
where  a  fire  hose  laid  by  the  fire  department 
of  such  city  across  the  crossing  to  extin- 
guish a  fire  is  cut  by  the  railway  running 
its  locomotive  over  it,  thereby  interrupting 
the  effort  to  extinguish  the  fire  and  causing 
destruction  to  the  property,  it  is  not  neces- 
sary for  the  owner  thereof,  in  order  to  re- 
cover damages  for  the  loss,  to  plead  and 
prove  wanton  negligence  of  the  railway 
company  in  cutting  the  hose,  or  prove  tliat 
the  person  operating  the  locomotive  had 
actual  knowledge  of  its  presence  on  the 
crossing.  It  is  sufficient  to  prove  that  the 
failure  of  the  railway  company  to  use  ordi- 
nary care  caused  the  cutting  of  the  hose  and 
resulted  in  the  destruction  of  the  property. 
Erickson  v.  Great  Northern  R.  Co.  39:  237,. 
135  N.  W.  1129,  117  Minn.  348. 

—  As  to  fires. 

Sufficiency  of  evidence  to  carry  case  to  jury, 

see  Tbial,  130. 
See  also  supra,  2157. 

2158.  Negligence  may  be  found  renderings 
a  railroad  company  liable  for  injury  to 
neighboring  property  by  fire,  where  the 
right  of  way  was  foul  with  inflammable 
material,  its  locomotive  emitted  sparks, 
and  the  fire  was  first  seen  on  its  right  of 
way  soon  after  the  engine  had  passed.  Har- 
dy V.  Hines  Bros.  Lumber  Co.  42:  759,  75 
S.  E.  855,  160  N.  C.  113. 

2159.  Where  the  evidence  in  an  action 
against  a  railroad  company  for  damages  by 
fire  shows  that  a  fire  had  been  burning  in 
the  debris  and  combustible  material  on  and 
near  the  right  of  way  for  several  days,  and 
that  the  superintendent  was  over  the  road, 
and  must  have  observed  the  same,  a  finding 
that  the  company  was  negligent  in  failing 
to  put  out  the  fire  or  prevent  its  spread  is 
justified.  Farrell  v.  Minneapolis  &  R.  R. 
R.  Co.  45:  215,  141  N.  W.  491,  121  Minn. 
357. 

2160.  The  adequacy  of  evidence  to  rebut 
the  statutory  presumption  of  actionable 
negligence,  arising  from  proof  that  fire  was 
kindled  by  sparks  from  a  locomotive,  must 
be  determined  in  view  of  any  other  facts 
tending  to  show  negligence  and  appearing  in 
the  testimony,  in  addition  to  those  suf- 
ficient to  give  rise  to  the  statutory  pre- 
sumption. Continental  Ins.  Co.  v.  Chicago  & 
N.  W.  R.  Co.  5:  99,  107  N.  W.  548,  97  Minn. 
467. 

2161.  The  presumption  of  actionable  negli- 
gence arising  upon  proof  that  a  fire  was 
kindled  by  sparks  from  a  locomotive  may  be 


EVIDENCE,  XIL  d. 


1233 


rebutted  by  proof  of  nonconnection  between 
the  sparks  emitted  and  the  fire,  or  by  proof 
that  the  engine  was  constructed,  etjuipped, 
and  operated  with  care  commensurate  with 
all  the  circumstances  of  the  particular  case. 
■  Continental  Ins.  Co.  v.  Chicago  &  N.  W.  R. 
Co.  5:  99,  107  N.  W.  548,  97  Minn.  467. 
—  At  crossing. 
Contributory    negligence,    see    infra,    2175- 

2178. 
Sufficiency   of   evidence   to   go   to   jury,   see 

Trial,  132-136. 

2162.  Evidence  of  witnesses  that  they  did 
not  hear  signals  given  by  a  railroad  train 
for  a  street  crossing  will  not  establish  neg- 
ligence on  the  part  of  the  railroad  company 
where  the  train  operatives  testify  positive- 
ly that  they  were  given.  Anspach  v.  Phila- 
delphia &  R.  R.  Co.  28:  382,  74  Atl.  373,  225 
Pa.  528. 

2163.  Evidence  of  travelers  at  a  railroad 
crossing  that  they  did  not  hear  signals  from 
an  approaching  train  does  not  overcome  the 
presumption  that  the  trainmen  did  their 
duty,  if  the  adverse  condition  of  the  wind 
and  the  presence  of  a  bluflf  might  have  pre- 
vented their  hearing  them  if  given.  Davis 
V.  Chicago,  R.  I.  &  P.  R.  Co.  16:  424,  159 
Fed.  10,  88  C.  C.  A.  488. 
Of  street  railw^ay  companies. 
Presumption  and  burden  of  proof  as  to,  see 

supra,  II.  h,  1,  c. 
Negligence  towards  street  railway  employee, 

see  supra,  2137. 
Sufficiency  of  evidence  to  go  to  jury,  see 

Triai,,  137. 

2164.  The  mere  fact  that  the  attempt  to 
move  a  heavily  loaded  street  car  stalled  on 
a  steep  grade  caused  the  wheels  to  revolve 
rapidly  without  imparting  motion  to  the 
car,  but  throwing  a  missile  against  a  pass- 
er-by, to  his  injury,  does  not  establish  neg- 
ligence on  the  part  of  the  street  car  com- 
pany which  will  render  it  liable  for  the  in- 
jury. De  Glopper  v.  Nashville  R.  &  Light 
Co.  33:  913,  134  S.  W.  609,  123  Tenn.  633. 

2165.  Proof  that  the  motorman  of  the  car 
which  injured  plaintiff  failed  to  observe  a 
requirement  of  the  street  railway  company 
that  its  cars  "run  slow"  at  the  crossing 
where  the  injury  occurred  is  evidence,  al- 
though not  conclusive,  from  which  the  jury 
would  be  warranted  in  finding  the  motor- 
man  negligent.  Hayward  v.  North  Jer- 
sey Street  R.  Co.  (N.  J.  Err.  &  App.) 
8:  1062,  65  Atl.  737,  74  N.  J.  L.  678. 

(Annotated) 

2166.  Evidence  that  a  horse,  while  being 
driven  along  the  street,  stepped  on  a  rail  of 
a  street  car  track,  that  a  spark  came  from 
the  rail,  that  the  horse  stopped  suddenly, 
went  backward  a  little,  and  then  fell  and 
died,  and  that  there  were  characteristic 
traces  of  a  fatal  electric  shock  upon  the 
organs  of  the  horse,  when  coupled  with  evi- 
dence that  there  would  be  no  dangerous 
current  of  electricity  in  the  rail  unless 
there  was  some  defect, — is  sufficient  to  war- 
rant a  jury  in  inferring  negligence  on  the 
part  of  the  street  railway  company.  St. 
Louis  V.  Bav  State  Street  R.  Co.  49:  447, 
103  N.  E.  630,  216  Mass.  255. 
Bigest   1-52  L.R.A.(N.S.) 


As  to  electricity. 

Sufficiency  of  evidence  to  displace  doctrine 

of  res  ipsa  loquitur,  see  Trial,  577. 
As  to  highw^ay. 

2167.  A  jury  finding  that  an  independent 
contractor  caused  the  uneven  condition  of  a 
road  which  resulted  in  injury  to  a  traveler 
thereon  is  sustained  by  proof  that  dirt 
was  taken  in  scrapers  from  a  drain  which 
the  defendant  was  constructing,  and 
dumped  on  the  road  and  left  in  piles,  which 
became  frozen,  leaving  depressions  8  or  10 
inches  deep,  and  that  before  dumping  the 
dirt  tliere  the  road  was  smooth  and  even. 
Solberg  v.  Schlosser,  30:  mi,  127  N.  W. 
91,  20  N.  D.  307. 

2168.  A  jury  finding  that  a  public  high- 
way was  in  a  dangerous  condition  by  rea- 
son of  having  earth  dumped  thereon  which 
had  not  been  leveled,  and  had  become  frozen 
at  the  time  a  traveler  thereon  was  injured 
by  the  tipping  over  of  his  wagon,  ia  sus- 
tained by  testimony  describing  the  road  as 
"pretty  rough,"  as  "hilly  and  uneven,"  and 
as  having  "high  and  low  places,"  by  proof 
that,  at  the  time  and  place  of  the  accident, 
the  depressions  were  8  or  10  inches  in 
depth,  and  the  testimony  of  a  witness 
that  he  had  extreme  difficulty  in  safely 
driving  over  the  road  about  that  time. 
Solberg  v.  Schlosser,  30:  11 11,  127  N.  W. 
91,  20  N.  D.  307. 

2169.  The  jury  may  find  that,  in  the  exer- 
cise of  due  care,  a  property  owner  should 
have  known  of  the  dangerous  condition  of 
a  coal  hole  in  the  sidewalk  from  the  man- 
ner of  its  construction  and  the  fact  tliat 
it  rattled  when  stepped  on.  Hill  v.  Hayes, 
18:  375,  85  N.  E.  434,  199  Mass.  411. 
Contributory  negligence. 
Presumption  and  burden  of  proof  as  to,  see 

supra,  II.  h,  2. 
Sufficiency   of   evidence   to   go   to   jury,   see 
TRLA.L,  148-150. 

2170.  To  maintain  the  defense  of  contrib- 
utory negligence  relied  on  by  defendant  in  an 
action  lor  personal  injuries,  plaintiff's  neg- 
ligence must  appear  by  a  preponderance  of 
the  evidence;  and  it  is  not  sufficient  that 
his  evidence  exposes  him  to  a  suspicion  of 
such  negligence.  Houston  &  T.  C.  R.  Co.  v. 
Anglin,  2:  386,  89  S.  W.  966,  99  Tex.  349. 

2171.  Mere  statement  by  parents  of  a 
child  killed  in  a  place  of  known  danger, 
that  they  exercised  care  over  him  and  trieil 
to  keep  him  around  home,  without  showing 
any  facts  from  which  care  could  be  in- 
ferred, are  not  sufficient  to  explain  his  pres- 
ence so  as  to  overcome  the  prima  facie  neg- 
ligence on  their  part.  Harrington  y.  Butte, 
A.  &  P.  R.  Co.  16:  395,  95  Pac.  8,  37  Mont. 
169. 

2172.  The  presumption  of  the  exercise  of 
due  care  and  caution  on  the  part  of  one  ap- 
proaching a  place  of  danger  is  essentially 
inferior  in  probative  force  id  weight  to 
credible  evidence,  either  direct  or  circum- 
stantial, explanatory  of  the  actual  occur- 
rence, and,  in  those  courts  where  the  pre- 
sumption underlies  the  rule  that  the  bur- 
den of  proving  contributory  negligence  rests 
upon  the  defendant  and  must  be  maintained 

78 


1234 


EVIDENCE,  XII.  e. 


by  a  fair  preponderance  of  the  evidence,  its 
force  and  influence  are  so  largely  embodied 
in  tlie  enforcement  of  that  rule  that  it  has 
little  independent  application,  save  as  it 
rests  upon  a  general,  but  not  invariable, 
rule  of  human  experience  which  may  and 
should  be  considered  in  determining  the 
credibility  of  evidence  and  the  weight  to 
be  given  to  it  when  these  matters  are  not 
otherwise  entirely  clear.  Wabash  R.  Co.  v. 
De  Tar,  4:  352,  141  Fed.  932,  73  C.  C.  A.  166. 

—  Of  servant. 

2173.  The  presumption  that  a  brakeman 
killed  on  a  railroad  track  while  in  the  per- 
formance of  his  duty,  without  any  witness 
of  the  accident,  was  in  the  exercise  of  rea- 

1  sonable  care  for  his  self-preservation,  will, 
in  the  absence  of  evidence  to  the  contrary, 
support  a  finding  that  he  was  not  guilty  of 
negligence  which  will  prevent  holding  the 
railroad  company  liable  for  his  death. 
Korab  v.  Chicago,  R.  I.  &  P.  R.  Co.  41:  32, 
128  N.  W.  529,  149  Iowa,  711. 

2174.  The  jury  cannot  act  upon  the  uncon- 
tradicted testimony  of  an  experienced  la- 
borer that  he  did  not  know  that  striking  a 
hard  blow  with  a  heavy  hammer  upon  a 
small  chisel  held  against  iron  would  cause 
splinters  to  fly,  where  ordinary  observation 
and  thought  would  have  revealed  that  fact 
to  him.  L'Houx  v.  Union  Constr.  Co.  30: 
800,  77  Atl.  636,  107  Me.  101. 

—  At  Mghivay  crossing. 

2175.  The  care  of  one  killed  at  a  railroad 
crossing  cannot  be  determined  by  showing 
or  assuming  what  men  in  general  would 
have  done.  Wright  v.  Boston  &  M.  R. 
8:  832,  65  Atl.  687,  74  N.  H.  128. 

2176.  The  instinct  of  self-preservation  is 
not  alone  sufficient  to  establisV  due  care  on 
the  part  of  a  pedestrian  killed  while  at- 
tempting to  cross  a  railroad  track  in  front 
of  a  moving  train.  Wright  v.  Boston  &  M. 
R.  8:  C32,  66  Atl.  687,  74  N.  H.  128. 

2177.  To  enable  a  jury  to  infer  due  care  on 
the  part  of  a  pedestrian  killed  at  a  railroad 
crossing,  from  circumstances,  they  must  he 
logically  such  that  the  jury  may  deduce  the 
fact  from  them  by  some  process  of  human 
reasoning.  Wricrht  v.  Boston  &  M.  R. 
8:  832,  65  Atl.  687,  74  N.  H.  128. 

2178.  To  hold  a  railroad  company  liable  in 
damages  for  the  death  of  a  pedestrian  killed 
at  a  street  crossing,  plaintiff  must  show 
by  a  preponderance  of  the  evidence  that  de- 
ceased was  in  the  exercise  of  due  care,  which 
cannot  be  sustained  by  mere  conjecture  and 
speculation.  Wright  v.  Boston  &  M.  R. 
8:  832,  65  Atl.  687,  74  N.  H.  128. 

—  As  to  electricity. 

2179.  Evidence  that  before  a  lineman  was 
injured  by  contact  with  live  wires  there 
was  an  uninsulated  joint  on  one  of  them, 
and  that,  after  the  accident,  bare  spots 
were  found  on  both  which  might  have  been 
caused  by  the  escape  of  the  current  which 
caused  the  injury,  is  not  sufficient  to  show 
that  the  danger  was  so  apparent  as  to 
charge  the  injured  person  with  knowledge 
of  it.  Miner  v.  Franklin  Countv  Teleph. 
Co.  26:. 1 195,  75  Atl.  653,  83  Vt.  311. 
Digest   1-62  I<.R.A.(N.S.) 


e.  As   to   property  rights. 

(See  also   same   heading   in   Digest   L.R.A. 
1-10.) 

Presumption  and  burden  of  proof,  see  supra. 

II.  k.  ^ 

Admissibility  of  evidence,  see  supra,  XI.  u. 

As  between  husband  and  wife. 

2180.  That  husband  and  wife  liuve  joined 
in  mortgaging  property  is  not  of  itself  suffi- 
cient to  show  that  it  belonged  to  tlie  com- 
munity. Guye  v.  Guye,  37:  186,  115  Pac. 
731,  63  Wash.  340. 

2181.  Mere  evidence  that  after  the  mar- 
riage a  man  obtained  a  certain  amount  of 
money  from  his  wife,  which  had  never  bee<i 
returned,  is  not  inconsistent  with  a  finding 
that  the  entire  estate  left  by  him  was  sepa- 
rate property.  Re  Pepper,  31:  1092,  112 
Pac.   62,   158  Cal.   619. 

Rights  in  real  property. 

Gift  of  real  estate,  see  infra,  2283. 

Identity   as   question   for   jury,   see   Trial, 

606. 
See  also  infra,  2219. 

2182.  Testimony  that  fire  was  seen  on  the 
right  of  way  of  a  lumber  company  of)erat- 
ing  a  railroad  is  suflicient  to  enable  the 
jury  to  find  that  it  had  a  riglit  of  way. 
Hardy  v.  Hines  Bros.  Lumber  Co.  42:  759, 
75  S.  E.  855,  160  N.  C.  113. 

2183.  In  the  absence  of  objection  as  to  the 
manner  of  proof,  one  suing  for  lest  profits 
because  of  the  loss  through  another's  fault 
of  an  opportunity  to  exchange  real  estate 
establishes  his  interest  in  •  -h  profits  ')y 
testimony  that  he  was  making  the  doal  for 
himself,  and  had  a  deed  to  the  property, 
which  he  was  offering,  which  vvoiiM  enaMe 
him  to  close  the  deal.  Lucas  v.  Western  U. 
Teleg.  Co.  6:  1016,  109  N.  W.  191,  131  Iowa, 
669. 

2184.  That  timber  which  was  claimed  un- 
der certain  deeds  is  of  the  requisite  size  to 
meet  the  demand  of  such  deeds  suliiciently 
appears  from  testimony  that  it  was  part  of 
the  timber  described  in  the  deeds.  Wim- 
brow  v.  Morris,  47:  882,  84  Atl.  238,  118 
Md.  91. 

2185.  The  existence  of  a  valid  location  on 
a  mining  claim  at  the  time  of  a  second  lo- 
cation thereon  is  not  established  as  matter 
of  law  by  evidence  on  behalf  of  a  relocator, 
after  the  expiration  of  the  statutory  period 
for  the  performance  of  labor  thereon,  to  the 
effect  that  a  location  had  been  made  on  the 
propertj^  and  the  statutory  time  for  the 
performance  of  labor  had  not  expired  at  the 
time  of  the  second  location,  but  that  no 
labor  had  been  done  on  the  claim;  since  it 
does  not  negative  the  abandonment  in  fact 
of  the  first  location  at  the  time  the  second 
was  made.  Farrell  v.  Lockh*vrt,  16:  162,  28 
Sup.  Ct.  Rep.  681,  210  U.  S.  142,  52  L.  ed. 
994. 

2186.  The  release  of  a  right  of  way  cannot 
be  presumed  from  the  evidence  of  a  single 
unfriendly  witness,  as  to  a  declaration  of 
abandonment  by  the  owner  of  the  way,  who 
has   since   deceased,  made   thirty-five  years 


EVIDENCE,   XII.  f. 


1235 


before  the  trial  in  the  presence  of  such  wit- 
ness, who  was  then  only  nineteen  years  old. 
Adams  v.  Hodgkins,  42:  741,  84  Atl.  530, 
109  Me.   361. 

2187.  An  oil  and  gas  lease  giving  the 
lessees  the  right  for  a  period  of  ten  years  to 
explore  for  oil  and  gas,  and  providing  that, 
if  a  well  is  not  completed  on  the  leased 
premises  within  three  months  from  the  date 
thereof,  the  lessees  shall  pay  to  tlie  lessor  in 
advance  a  quarterly  cash  rental  for  each 
additional  three  months  the  completion  of  a 
well  18  delayed,  is  proven  to  have  been  vol- 
untarily abandoned  by  the  lessees  by  evi- 
dence that  they  failed  to  mdke  any  explora- 
tion for  oil  and  gas  on  the  premises  for 
more  than  a  year  after  the  date  of  the  lease, 
and  their  failure  to  pay  three  successive 
quarterly  rentals,  when  taken  in  connection 
witli  the  fact  that  they  considered  their 
rights  thereunder  terminated  when  they 
failed  to  make  the  third  quarterly  pay- 
ments, at  which  time  they  regarded  the 
lease  as  of  no  value.  Smith  v.  Root,  30: 
176,  66  S.  E.   1005,  66  W.  Va.  633. 

2188.  That  lands  standing  in  the  name  of 
a  member  of  a  partnership  were  partner- 
ship property  may  be  shown  by  the  fact 
that  he  permitted  them  to  be  dealt  with  as 
partnership  property,  and  failed  to  list  them 
as  belonging  to  him  in  his  will.  Johnson 
V.  Hogan,  37:  889,  123  N.  W.  891,  158  Mich. 
635. 

2189.  The  fact  that  a  city  paved  part  of 
the  land  of  a  wharf  company  claimed  by  it 
as  a  public  street  without  collecting  the 
cost  thereof  from  the  wharf  owner,  as  it 
had  a  right  to  do  in  case  of  the  paving  of 
a  wharf,  is  not  conclusive  of  an  implied 
dedication  and  acceptance  thereof  of  the 
land  as  a  street.  Savannah  v.  Standard 
Fuel  Supply  Co.  48:  469,  78  S.  E,  906,  140 
Ga.  353. 

2190.  The  fact  that  a  railroad  company 
constructed  a  track  over  a  part  of  wharf 
property  under  an  ordinance  of  the  munic- 
ipality granting  permission  to  lay  it  upon 
a  street,  and  exempting  the  city  from  dam- 
ages if  laid  upon  private  property,  is  too 
inconclusive  an  act  on  which  to  base  dedi- 
cation or  prescription  of  the  wharf  oc- 
cupied by  the  railroad  as  a  part  uf  the 
street.  Savannah  v.  Standard  Fuel  Supply 
Co.  48:  469,  78  S.  E.  906,  140  Ga.  353. 

—  Bv  adverse  possession. 

2191.  Intention  to  claim  adversely  up  to 
a  division  fence,  which  will  give  title  by 
adverse  possession,  may  be  found  from  the 
fact  that  the  claimant  and  his  grantors 
had  been  in  possession,  claiming  title  up 
to  the  fence  for  more  than  fifteen  years, 
and  that  the  owner  of  the  neighboring  prop- 
erty made  no  claim  beyond  the  fence  for  all 
that  time.  Fdwards  v.  Fleming,  33:  923, 
112  Pac.  836,  83  Kan.  653. 

2102.  "Mere  evidence  that  possesion  was 
taken  of  land  under  the  mi«taken  belief 
that  it  was  part  of  the  publ'c  domain,  for 
the  purpose  of  acquiring  title  from  the 
state  by  compliance  with  the  law  providing 
therefor,  does  not  show  that  it  was  ad- 
verse to  the  true  owner,  if  the  title  was  in 
Digest   1-52  L.R.A.(N.S.) 


fact  in  a  private  citizen.     Smith  v.  Jones, 
31:  153,   132   S.   W.  469,   103  Tex.   632. 

(Annotated) 
—  Rights   of  public. 

2193.  Although  evidence  of  acts  on  the 
part  of  the  public  running  through  a  long 
period  of  time  is  not  of  itself  sulilcient  to 
establish  a  public  right  as  against  a  private 
record  title,  it  may  be  considered  in  connec- 
tion with  the  fact  that  the  commonwealth 
maintained  an  adverse  possession  through 
its  lessees  for  twenty  years,  as  tending  to 
establish  title  in  the  commonwealth.  Ma- 
lone  ex  rel.  Harbor  &  Land  Comrs.  v.  Ellis, 
15:  1120,  84  N.  E.  430,  198  Mass.  91. 
Water  rights. 

Presumption   and  burden   of  proof,   see  su- 
pra, 593,  594. 

2194.  Evidence  of  the  cutting  away  of  a 
river  bank  by  the  driving  of  logs  from  6  to 
10  feet  along  a  stretch  of  800  to  1,000  feet 
shows  injury,  at  least  to  the  extent  of  $50. 
Mitchell  V.  Lea  Lumber  Co.  9:  900,  86  Pac. 
405,  43  Wash.  195. 

2195.  The  mere  fact  that  a  dam  in  a  ditch 
constructed  to  carry  a  portion  of  the  water 
of  a  river  tends  to  impede  the  flow  of  water 
through  the  ditch  does  not  necessarily  show 
injury  to  the  owners  of  lands  on  the  river. 
Stimson  v.  Brookline,  16:  280,  83  N.  E.  893, 
197  Mass.  568. 

2196.  A  finding  that  the  diversion  of  water 
from  its  bed,  while  it  passes  through  ri- 
parian land,  does  not  interfere  with  the 
rights  of  an  appropriator  of  the  underflow 
at  a  point  lower  down  the  stream,  is  sus- 
tained by  evidence  that  the  additions  to 
the  underflow  where  the  stream  passes 
through  such  land  are  sufficient  to  cause 
the  water  to  flow  on  the  surface  above  the 
point  where  the  diverted  water  is  returned 
to  the  bed  of  the  stream.  Mentone  Irriga- 
tion Co.  V.  Redlands  Electric  Light  &  P. 
Co.  22:  382,  100  Pac.  1082,  155  Cal.  323. 

2197.  Abandonment  of  a  right  to  flow 
lands  for  a  millpond  may  be  found  from 
evidence  that  the  principal  mill  had  been 
dismantled  and  removed  from  the  mill  site 
ten  years  before  the  controversy  as  to  the 
risfht  to  continue  it  arose,  that  for  eight 
of  those  years  occasionally  grists  of  grain 
had  been  ground  by  an  old  building  on  the 
premises,  that  the  public  had  not  been 
served  by  operation  of  the  mill,  that  tlie 
pond  had  been  used  principally  to  produce 
ice,  and  that  for  two  years  the  dam  was 
permitted  to  remain  in  a  demolished  con- 
dition. Gross  V.  Jones,  32:  47,  122  N.  W. 
681,  85  Neb.  77.  (Annotated) 

/*.  Matters    as    to    persons;    relation    of 
parties. 

(See  alto   same   heading  in  Digest  L.R.A. 
1-10.) 

Innocence. 

2108.  A  provision  in  a  statute  (Afinn. 
Gen.  S+at.  191.3,  §  8721)  that  claimants  of 
personalty  used  in  maintaining  a  bawdy- 
house  must  prove  innocence  to  the  satis- 
faction of  the  court   is  not  subject  to  the 


1236 


EVIDENCE,  XII.  f. 


objection  that  it  calls  for  more  than  a  pre- 
ponderance of  the  evidence.      State  ex   rel. 
Robertson  v.  Lane,  52:  932,  147  JS.  W.  951, 
126  Minn.  78. 
Insolvency. 
Presumption  and  burden  of  proof,  see  Bupra, 

129. 
Admissibility  of  evidence,  see  supra,  1955, 

1956. 

2199.  The  insolvency  of  a  concern  on  the 
date  when  it  made  a  payment  alleged  to 
have  constituted  a  preference  is  not  estab- 
lished by  evidence  of  the  trustee  that,  in 
his  opinion,  based  on  an  examination  of  its 
books,  it  was  at  that  time  insolvent.  Tum- 
lin  V.  Bryan,  21:  960,  165  Fed.  166,  91  C.  C. 
A.  200. 

2200.  The  insolvency  of  a  concern  at  the 
time  it  made  a  payment  which  is  sought  to 
be  set  aside  as  a  preference  cannot  be  estab- 
lished by  the  schedules,  filed  several  months 
later,  showing  the  debts  and  assets  at  the 
time  of  the  institution  of  bankruptcy  pro- 
ceedings, without  anything  to  show  the 
amount  of  its  property  at  the  date  of  the 
payment.  Tumlin  v.  Bryan,  21:  960,  165 
Fed.  166,  91  C.  C.  A.  200. 

2201.  Insolvency,  or  inability  of  a  vendor 
of  realty  to  pay  a  mortgage  indebtedness  or 
to  respond  in  damages  for  breach  of  a  cove- 
nant against  encumbrances,  sufficient  to 
warrant  recovery  against  a  recorder  of  deeds 
for  his  negligent  failure  to  record  such  mort- 
gage, as  required  by  law,  is  not  shown  where 
the  only  evidence  is  the  testimony  of  a 
single  witness,  p:veral  years  after  the  trans- 
action in  question,  that  he  has  been  unable 
to  make  collections  against  the  covenantor, 
that  she  has  left  the  county  and  has  no 
property  there,  and  that,  in  his  opinion,  she 
is  insolvent  at  the  time  of  trial,  as  such 
evidence  does  not  tend  to  show  insolvency  at 
the  time  of  the  transaction,  but  several 
years  afterward.  Rising  v.  Dickinson,  23: 
127,  121  N.  W.  616,  18  N.  D.  478. 
Marriage. 

Presumption  and  burden  of  proof,  see  su- 
pra, II.  e,  2. 

Insufficiency  of  evidence  as  ground  for  vacat- 
ing divorce  decree,  see  Judgment,  340. 

See  also  infra,  2210. 

2202.  Record  evidence  is  not  necessary  to 
establish  a  marital  relation.  Smith  v. 
Fuller,  16:  gk,  115  N.  W.  912,  138  Iowa,  91. 

2203.  The  marriage  may  be  proved  by  the 
testimony  of  the  parties  thereto,  in  an 
action  for  criminal  conversation,  without 
the  necessity  of  producing  the  marriage 
certificate.  Stark  v.  Johnson,  16:  674,  95 
Pac.   930,  43   Colo.  243. 

2204.  Testimony  of  both  the  contracting 
parties  to  a  marriage  ceremony,  that  it  was 
not  dissolved  until  after  the  death  of  a 
person  with  whom  one  of  the  parties  went 
through  a  subsequent  ceremony  overcomes 
any  presumption  which  the  court  might 
otherwise  have  indulged  as  to  the  dissolu- 
tion of  the  first  marriage  before  the  second 
was  entered  into.  Sloan  v.  West,  17:  960, 
96  Pac.  684,  50  Wash.  86. 

Divorce. 

2205.  To  justify  a  divorce  for  adultery,  a 
Digest  1-52  I..R.A.(N.S.) 


preponderance  of  evidence  of  the  fact  is  suf- 
ficient; it  need  not  be  clear,  cogent,  and 
convincing.  EUett  v.  Ellett,  39:  1135,  72  S. 
E.  861,  157  N.  C.  161. 

22U6.  Though  circumstantial  evidence  i» 
admissible  and  sufficient  to  prove  adultery 
in  a  suit  for  divorce,  it  must  be  so  clear  and 
strong  as  to  carry  conviction  of  the  truth 
of  the  charge,  and,  if  it  does  no  more  than 
raise  a  suspicion  of  chastity,  it  is  insuf- 
ficient. Hull'  V.  Hutr,  51:  282,  80  S.  E.  846, 
73  W.  Va.  330. 
—  Necessity  for  corroboration. 

2207.  Corroboration  of  the  testimony  of 
plaintiff  in  a  divorce  proceeding  as  to  the 
infliction  upon  him  of  grievous  mental  suf- 
fering by  defendant's  acts  is  not  required 
by  a  statute  providing  that  no  divorce  caa 
be  granted  upon  the  uncorroborated  testi- 
mony of  the  parties.  MacDonaid  v.  Alac- 
Donald,  25:  45,  102  Pac.  927,  155  Cal.  665. 

(Annotated) 

2208.  When  a  defendant  in  a  divorce  ease 
pleads  a  counter-matrimonial  offense 
against  the  petitioner  in  bar  of  the  suit, 
the  offense  so  pleaded  is  not  made  ou:  un- 
less supported  by  corroborating  evidence 
the  same  as  though  it  were  made  the  basis 
of  an  application  for  divorce.  Rogers  v. 
Rogers  (N.  J.  Err.  &  App.)  46:711,  86  Atl. 
935,  81  N.  J.  Eq.  479. 

2209.  Uncorroborated  evidence  of  a  woman 
of  nonaccess,  by  the  man  she  subsequently 
married,  and  with  whom  prenuptiai  illicit 
relations  are  admitted,  during  the  period 
when  she  became  pregnant  by  another  of  a 
child  born  in  wedlock,  will  not  entitle  him 
to  the  benefit  of  a  statute  authorizing  a 
divorce  in  case  she  was,  without  his  knowl- 
edge, so  pregnant  at  the  time  of  the  mar- 
riage. Wallace  v.  Wallace,  14:  544,  114  N. 
W.  527,  137  Iowa,  37. 
Illegitimacy. 

2210.  That  a  man  and  woman  lived  to- 
gether as  husband  and  wife,  and  called  a 
child  of  the  marriage  their  daughter,  and 
that  she  called  them  fatlier  and  mother,  is 
sufficient  prima  facie  evidence  of  their  mar- 
riage and  of  her  legitimacy.  Re  Hartman, 
36:  530,  107  Pac.  105,  157  Cal.  206. 

2211.  Before  a  child  begotten  in  lawful 
wedlock  can  be  adjudged  a  bastard,  the 
proof  must  be  clear,  certain,  and  conclusive 
either  that  the  husband  had  no  powers  of 
procreation,  or  the  circumstances  were  such 
as  to  render  it  impossible  that  he  could 
be  the  father  of  the  child.  Powell  v.  State 
ex  rel.  Fowler,  36:  255,  95  N.  E.  660,  84 
Ohio  St.  165.  (Annotated) 
Birth. 

2212.  Birth  may  be  proved  by  general  re- 
pute in  the  family.  Luke  v.  Hill,  38:  559, 
73  S.  E.  345,  137  Ga.  159. 

Death  of  insured. 

2213.  One  seeking  to  recover  on  a  policy 
of  insurance  upon  the  life  of  one  who  dis- 
appeared without  explanation,  and  has  been 
absent  from  home  for  more  than  seven 
years,  is  not  bound  to  satisfy  the  jury  of 
his  death  beyond  a  reasonable  doubt,  a  pre- 
ponderance    of     evidence     being     sufficient. 


EVIDENCE,   XII.  f. 


1237 


Kennedy  v.  Modern  Woodmen  of  America, 
28:  181,  90  N.  E.  1084,  243  111.  560. 

2214.  A  finding  in  an  action  on  a  benefit 
■certificate,  that  the  insured  died  prior  to 
the  29th  of  July,  1902,  is  supported  by 
evidence  that  he  was  a  man  of  good  habits 
and  associates,  that  he  lived  harmoniously 
with  his  wife  and  family,  that  he  had  been 
in  poor  health  for  some  time  prior  to  his 
disappearance,  which  occurred  on  July  17, 
1901,  in  the  daytime,  in  a  community  where 
he  was  well  known,  that,  so  far  as  known, 
he  had  no  money  for  traveling,  and  that 
he  had  not  been  seen  or  heard  from  for  the 
period  of  seven  years  thereafter.  Behlmer 
V.  Grand  Lodge,  A.  O.  U.  W.  26:  305,  123 
N.    W.    1071,    109   Minn.    305. 

2215.  The  jury  may  find  that  death  was 
the  cause  of  the  disappearance  of  a  man 
who  was  under  middle  age,  had  a  family 
to  whom  he  was  very  strongly  attached, — 
where  no  domestic  infelicity  had  ever  ex- 
isted,— was  in  reasonably  good  circum- 
stances, was  respected  in  the  community, 
and  no  possible  cause  could  be  assigned  for 
his  wilfully  abandoning  his  home.  Butler 
v.  Supreme  Court,  I.  0.  F.  26:  293,  101  Pac. 
481,   53   Wash.   18. 

Change  of  domicil. 

2216.  A  change  of  domicil  as  matter  of 
fact  may  be  established  by  evidence  that  one 
left  the  state  of  his  birth  at  an  early  age 
and  returned  only  once  to  visit  his  parents, 
and  finding  that  they  had  left  the  state 
again  departed,  leaving  neither  property  nor 
relatives  there,  while  for  nearly  forty  years 
his  residence  and  place  of  business  were  at 
a  certain  place  in  a  foreign  country. 
Mather  v.  Cunningham,  29:  761,  74  Atl. 
809,  105  Me.  326. 

Identity. 

In  criminal  case,  see  infra,  2373-2375. 

2217.  The  identification  of  a  person  named 
in  a  pardon  is  sufficient  if  one  bearing  the 
name  of  the  person  so  named  testifies  that 
he  received  and  accepted  it.  Thompson  v. 
United  States,  47:  206,  202  Fed.  401,  120 
C.  C.  A.  575. 

Kno'vrledge. 

Presumption  and  burden  of  proof  as  to,  see 

supra,  II.  e,  5. 
Admissibility  of  evidence,  see  supra,  XI.  e. 
In  criminal  prosecution,  see  infra,  2410. 
See  also  supra,  2179. 

2218.  Evidence  that  four  sample  trunks 
aggregating  800  pounds  in  weight,  checked 
by  a  commercial  traveler,  were  of  the  form 
and  pattern  of  trunks  used  for  the  trans- 
portation of  merchandise  samples,  and  that 
it  was  the  custom  of  the  defendant  railway 
company  to  check  such  trunks  as  baggage 
without  limitation  or  condition,  is  sufficient 
to  sustain  a  finding  by  the  jury  in  an  action 
to  recover  for  the  loss  of  the  trunks,  that 
the  defendant  company  had  notice  or  knowl- 
edge that  the  trunks  contained  merchandise 
when  it  checked  them.  McKibbin  v.  Wis-  | 
consin  C.  R.  Co.  8:  489,  110  N.  W.  964,  100 
Minn.  270.  ' 

2219.  A  finding  that  defendant,  the  holder 
of  a  recorded  deed  of  certain  real  estate, 
Digest  1-52   L.R.A.(N.S.) 


had  notice,  at  the  time  of  the  conveyance 
to  him,  of  a  prior  unrecorded  deed  to  plain- 
tiff, and  was  not  a  bcma  fide  purchaser  for 
value  by  reason  thereof  is  sulficiently  sus- 
tained, where  it  appears  tliat  for  some  years 
he  had  been  familiar  with  the  property, 
and  that  he  was  well  acquainted  with  the 
vendor;  and  plaintiff's  husband  testified 
that  at  the  time  he  procured  the  deed  for 
his  wife  he  e.xpressly  informed  defendant 
of  that  fact,  although  defendant  testified 
that  he  did  not  remember  such  conversa- 
tion; and  the  evidence  is  clear  that,  two 
days  prior  to  the  day  on  which  defendant 
recorded  his  deed,  he  was  again  informed  of 
the  existence  of  plaintiff's  deed;  and  an- 
other testified  that  he  informed  defendant 
of  such  prior  deed  prior  to  such  recorda- 
tion, and  requested  him  not  to  bid  against 
plaintiff  at  a  tax  sale  then  about  to  take 
place,  which  conversation  was  not  denied 
by  defendant,  although  he  fixed  the  date 
thereof  after  the  recording  of  his  deed.  Er- 
rett  V.  Wheeler,  26:  816,  123  N.  W.  414,  109 
Minn.   157. 

Capacity;  competency. 
Presumption  and  burden  of  proof  as  to,  see 

supra,  II.  e,  5. 
Admissibility  of  evidence,  see  supra,  XI.  d. 
Incompetency  of  fellow  servant,  see  supra, 

2138-2142. 
In    criminal   prosecution,    see    infra,    2358- 

2361. 
Sufficiency    of    evidence    to    overcome    pre- 
sumption of  capacity,  see  Trial,  243. 

2220.  A  jury  cannot  decide  a  person  unfit 
for  his  employment  on  account  of  what 
they  see,  or  suppose  they  see,  or  can  read, 
in  his  face  and  manner  while  testifying  be- 
fore them.  Wilkinson  v.  Kanawha  &  H. 
Coal  &  C.  Co.  20:  331,  61  S.  E.  875,  64  W. 
Va.  93. 

2221.  Proof  of  epilepsy  does  not,  neces- 
sarily, directly  establish  insanity,  as  epi- 
lepsy is  not,  as  a  matter  of  fact  or  law, 
insanity,  though  evidence  of  an  epileptic 
condition  may  bear,  circumstantially,  on 
the  mental  condition  of  the  afflicted  person 
to  the  extent  of  establishing  insanity. 
Oborn  v.  State,  31 :  966,  126  N.  W.  737,  143 
Wis.  249. 

2222.  A  finding  of  incapacity  on  the  part 
of  one  executing  a  sale  of  property  is  sup- 
ported by  evidence  that  he  had  been  having 
a  protracted  debauch,  and,  before  the  execu- 
tion of  the  contract,  he  was  so  drunk  that 
he  fell  in  the  street,  and,  three  hours  after 
executing  the  instrument,  was  so  drunk  that 
he  collapsed  and  had  to  be  put  to  bed,  and 
recalled  nothing  of  the  transaction.  Swan  v. 
Talbot,  17:1066,  94  Pac.  238,  152  Cal.  142. 

—  Of  testator. 

2223.  A  will  which  disposes  of  testator's 
property  in  a  manner  consistent  with,  and 
such  as  naturally  would  be  expected  from, 
a  man  in  testator's  situation,  is  of  itself 
evidence  of  testamentary  capacity.  Re 
Shapter,  6:  575,  85  Pac.  688,  35  Colo.   578. 

2224.  Evidence  that,  on  the  day  a  will  was 
made,  testator  was  physically  weak,  failed 
to  recognize  witness,  and  was  unable  to 
converse    as    to   his    condition    or    affairs. 


1238 


EVIDENCE,  XII.  f. 


which  does  not  refer  to  the  precise  time  the 
will  was  executed,  is  not  suincieiit  to  show 
lack  of  testament.iry  capacity.  Speer  v. 
Speer,  27:  294,  123  iST.  W.  176,  146  Iowa, 
6. 

2225.  Evidence  that  a  testator,  who  was 
otherwise  competent,  made  a  college,  in 
which  he  had  previously  shown  no  interest, 
his  residuary  legatee,  under  the  belief  that 
his  estate  was  practically  exhausted  by 
specific  bequests,  when  in  fact  the  residue 
amounted  to  more  than  two  thirds  of  the 
whole,  is  not  sufficient  to  warrant  a  finding 
of  a  want  of  capacity  to  make  such  provi- 
sion. Holmes  v.  Campbell  College,  41: 
1 126,  125  Pac.  25,  87  Kan.  597. 
AntiiOTity. 

2226.  Mere  rumor,  or  common  belief,  that 
the  president  of  a  corporation  has  power  to 
borrow  money  in  its  behalf,  is  n')t  of  itself 
evidence  of  such  authority.  Thompson  v. 
Laboringman's  Mercantile  &  Mfg.  Co.  6:  311, 
63  S.  E.  908,  60  W.  Va.  42. 

2227.  Where  the  express  authority  of  an 
agent  to  sign  an  agreement  in  writing  for 
the  sale  of  lands  rests  in  parol,  the  proof 
must  be  clear  and  convincing,  not  only  of 
such  parol  authority,  but  also  that  tiie  au- 
thority was  such  as  to  permit  the  inclusion 
of  all  the  material  terms  which  are  em- 
bodied in  the  instrument.  Spengler  v.  Son- 
nenberg,  52:  510,  102  N.  E.  737,  88  Ohio  St. 
192. 

Intent. 

Admissibility  of  evidence,  see  supra,  XI.  e. 

See  also  supra,  2191;  infra,  2415a. 

2228.  Under  a  statute  making  it  usury 
knowingly  to  receive  or  charge  an  unlaw- 
ful rate  of  interest,  the  corrupt  intent  is 
established  where  the  instrument  evidenc- 
ing the  loan  shows  the  exaction  of  more 
than  the  lawful  rate.  MacRackan  v.  Bank 
of  Columbus,  49:  1043,  80  S.  E.  184,  164  N. 
C.  24. 

2229.  Intention  that  the  beneficiary  in  a 
life  insurance  policy  shall  be  a  woman  with 
whom  insured  is  living  is  shown  by  evi- 
dence that  he  had  it  made  in  her  name  as 
his  wife,  if  he  had  held  her  out  as  his  wife 
for  several  years,  and  was  estranged  from 
the  woman  to  whom  he  was  legally  mar- 
ried. Mutual  L.  Ins.  Co.  v.  Cummings,  47: 
252,  126  Pac.  982,  133  Pac.  1169,  66  Or.  272. 

2230.  Extraneous  proof  of  mutual  under- 
standing is  not  necessary  to  make  irrevoca- 
ble, after  the  death  of  one  party,  a  joint  will 
by  husband  and  wife,  by  which  each  gives 
his  or  her  property  to  the  other  for  life 
with  remainder  over  to  their  child.  Frazier 
V.  Patterson,  27:  508,  90  N.  E.  216,  243  111. 
80. 

2231.  2232.  The  surrender,  by  one  who  had 
.  acquired  title  to  a  car  of  wheat  by  paying  a 

draft  to  which  a  bill  of  lading  was  attached, 
of  the  bill  of  lading,  to  the  railroad  company, 
with  directions  to  set  the  car  at  the  elevator 
of  a  purchaser,  together  with  the  drawing  of 
a  draft  on  the  purchaser  in  such  a  manner,  as 
in  the  course  of  exchange,  will  require  two 
days  before  presentation, — constitutes  such 
evidence  of  an  intention  to  give  credit  as 
will  support  the  finding  of  the  trial  court 
Digest  1-52  L.R.A.(N.S.) 


that  the  seller  cannot  recover  the  wheat 
from  a  subvendee  to  whom  the  purchaser 
rebilled  and  sold  it  by  transfer  of  tlie  bill 
of  lading.  Kemper  Grain  Co.  v.  Harbor, 
47:  173,   133   Pac.   565,  89  Kan.   824. 

(Annotated) 

—  To  defraud  creditors. 

2233.  A  fraudulent  intent  to  withhold  con- 
ditional sale  contracts  from  record  is  not 
shown  by  the  facts  that  they  were  in  fact 
so  withheld  until  the  purcliaser  fcund  him- 
self in  financial  difficulties,  and  tliat  in 
prior  dealings  between  the  parties  such 
contracts  had  been  executed  between  them, 
but  not  filed  when  the  purchaser  complied 
with  his  agreement.  Big  Four  Impleuu-nt 
Co.  V.  Wrii,'ht,  47:  1223,  207  Fed.  535,  125 
C.  C.  A.  677. 

—  To  revoke  will. 

2234.  The  act  of  testator  in  tearing  a  will, 
and  his  declarations  at  the  time,  are  not  a 
preferred  class  of  evidence  on  the  question 
of  intent  to  revoke  it.  Managle  v.  Parker, 
24:  180,  71  Atl.  637,  75  N.  H.  139. 

2235.  A  want  of  intention  to  revoke  a  will 
executed  in  duplicate,  by  destroying  the 
copy  in  his  possession,  may  be  found  from 
evidence  that  testator  left  the  other  copy, 
which  had  been  executed  under  circum- 
stances which  justified  the  belief  that  it 
would  constitute  his  will  even  though  the 
other  was  destroyed,  in  possession  of  its 
custodian  for  five  years  after  the  destruc- 
tion of  his  copy.  Managle  v.  Parker,  i^: 
180,  71  Atl.  637,  75  N.  H.  139. 

Age. 

Admissibility  of  evidence,  see  supra,  1581. 

2236.  The  jury  may  be  permitted  to  find 
that  plaintiff  was  under  a  certain  age  when 
injured,  from  the  facts  that  it  is  admitted 
that  he  went  to  work  about  the  first  of  a 
month,  and  the  evidence  shows  that  he  was 
injured  on  the  fourth  day  after  his  employ- 
ment, and  reached  the  specified  age  on  the 
twelfth  of  the  month.  Leathers  v.  Black- 
well's  Durham  Tobacco  Co.  9:  349,  57  S.  E. 
11,  144  N.  C.  330. 

2237.  An  affidavit  to  secure  permission  to 
sue  as  next  friend  of  an  injured  child,  stat- 
ing that  he  was  thirteen  years  old,  when  he 
was  in  fact  twelve  years  and  eight  months 
old,  does  not  show  that  he  was  over  twelve 
years  old  when  the  accident  occurred  about 
nine  months  before  the  affidavit  was  made. 
Leathers  v.  Blackwell's  Durham  Tobacco  Co. 
9:  349,  67  S.  E.  11,  144  N.  C.  330. 
Intoxication;  intemperateness. 

In  criminal  prosecution,  see  infra,  2355. 

2238.  Intoxication  within  the  meaning  of 
a  statute  permitting  the  removal  of  a  mayor 
from  office  for  intoxication  is  shown  by  the 
fact  that  the  incumbent  of  the  office  drank 
whisky,  was  looking  for  more,  and  entered 
into  an  argument  on  the  street  in  tones  so 
loud  as  to  be  heard  across  the  street,  apply- 
ing profane  and  opprobrious  epithets  to  his 
opponent,  and,  although  a  large  crowd  col- 
lected about  him.  refused  to  withdraw  upon 
request  to  let  them  disperse,  while  his  speech 
was  impaired  and  he  was  unable  to  stand 
steadily,  so  that  he  impressed  bystanders 
as  being  intoxicated.     State  ex  rel.  Cosson 


EVIDENCE,  XII.  f. 


1239 


V.    Baughn,    50:  912,    143    N.    W.    1100,    162 
Iowa,  308.  (Annotated) 

2230.  Conflicting  evidence  as  to  wliotiier  or 
not  one  who  had  been  known  to  be  under 
the  influence  of  intoxicating  liquor  was  in- 
temperate in  its  use  does  not  require  the 
application  of  the  rule  that  positive  is  of 
greater  weight  than  negative  testimony. 
Taylor  v.  Securitv  Life  &  Annuity  Co.  15: 
583,  59  S.  E.  139,' 145  N.  C.  383. 
Relation  of  parties. 

2240.  A  finding  that  a  person  is  a  stock- 
holder in  a  corporation  is  sustained  by  evi- 
dence to  the  effect  that  his  name  appears 
on  the  stock  book  of  the  corporation  as  a 
stockholder;  that  he  was  named  as  a  di- 
rector in  the  articles  of  incorporation;  and 
that  he  was  introduced  by  the  promoter  and 
president  of  the  company  to  its  attorney  as 
a  director,  and  failed  to  resent  it;  that 
about  the  same  time  he  conferred  with  an- 
other stockholder  in  regard  to  the  affairs 
of  the  company;  that  he  attended  one  or 
two  meetings  of  the  directors;  and  that  he 
did  not  return  a  certificate  of  stock  mailed 
to  him  by  the  company.  Randall  Printing 
Co.  V.  Sanitas  Mineral  Water  Co.  43:  706, 
139  N.  W.  606,  120  Minn,  268. 

2241.  That  two  men  called  each  other 
brothers,  and  their  conduct  and  conversation 
indicate  and  are  consistent  with  such  rela- 
tionship, is  sufficient  to  establish  the  fact 
of  its  existence.  Re  Hartman,  36:  530, 
107  Pac.  105,  157  Cal.  206. 

—  Master  and  serrant. 

2242.  A  finding  of  employment  by  a  prin- 
cipal in  an  action  against  hira  to  recover 
on  an  alleged  contract  of  employment  is  un- 
warranted, where  the  evidence  shows  that 
plaintiff  was  hired  by  an  unauthorized 
agent,  that  the  defendant  at  all  times  pro- 
tested against  the  performing  of  the  work, 
and  repeatedly  notified  plaintiff  of  that 
fact,  and  inquired  as  to  who  employed  him, 
and  at  no  time  recognized  the  acts  of  the 
alleged  agent  in  employing  plaintiff.  Find- 
lay  V.  Hildenbrand,  29:  400,  105  Pac.  790, 
17  T-laho,  403. 

2243.  Proof  that  a  father  owned  and  kept 
an  automobile  upon  his  premises,  and  that 
his  daughter,  aged  nineteen,  was  accustomed 
to  and  did  drive  it,  sometimes  without  per- 
mission, there  being  no  proof  that  the 
daughter  was  actually  employed  by  the 
father  to  operate  the  machine,  is  not  suf- 
ficient to  constitute  the  daughter  the  serv- 
ant of  the  master,  so  as  to  charge  him  with 
liability  where  the  daughter,  in  using  the 
machine  without  permission,  and  for  her  own 
pleasure  in  driving  her  personal  friends,  neg- 
ligently injured  a  person  in  the  highway. 
Doran  v.  Thomsen  (N.  J.  Err.  &  App.)  19: 
335,  71  Atl.  296,  76  N.  J.  L.  754. 

2244.  To  hold  a  railroad  company  liable  for 
the  negligence  of  a  gate  tender  at  a  street 
crossing  where  the  tracks  are  used  by  sev- 
eral companies,  evidence  is  sufficient  which 
will  support  an  inference  that  the  business 
is  that  of  defendant,  and  the  person  doing 
it  is  its  agent.  Boucher  v.  New  York,  N.  H. 
&  H.  R,  Co.  13:  1 177,  82  N.  E,  15,  196  Mass, 
355. 

Digest  1-52  L.B.A.(N.S.) 


Principal  and  agent. 

Presumption  and  burden  of  proof,  see  su- 
pra, 131,  132. 

In  prosecution  for  embezzlement,  see  infra, 
2390,  2391. 

See  also  supra,  1193;   infra,  2430a. 

2245,  The  fact  of  agency  may  be  proved  by 
circumstantial  evidence.  Martin  v.  Hutton, 
36:  602,  132  N.  W.  727,  90  Neb.  34. 

2246,  An  alleged  agency  need  not  neces- 
sarily be  established  by  direct  evidence,  but 
may  be  shown  by  circumstances,  such  as 
the  relation  of  the  parties  to  -^ach  other 
and  their  conduct  with  reference  t,..  the  sub- 
ject-matter of  the  contract.  Lindquist  v. 
Dickson,  6:  729,  107  N.  W,  958,  98  Minn,  369, 

2247,  That  a  railroad  company  selling 
through  tickets  over  several  other  roads  was 
the  agent  of  a  particular  one  of  them  may 
be  shown  by  the  fact  that  it  honored  the 
tickets,  Brian  v.  Oregon  Short  Line  R. 
Co.  25:  459,  105  Pac.  489,  40  Mont,  109, 

2248,  That  a  man,  in  negotiating  for  a 
loan,  is  acting  for  his  wife  as  undisclosed 
principal,  is  not  shown  by  evidence  that  she 
was  carrying  on  a  farm  in  her  own  name 
and  that  all  the  marketing,  buying,  and 
selling  was  done  by  hira  for  her.  Shield* 
V.  Coyne,  29:  472,  127  N.  W.  63,  148  Iowa, 
313. 

2249,  That  the  agent  in  charge  of  a  railroad 
station  was  the  agent  of  a  telegraph  com- 
pany to  receive  messages  for  transmission 
over  its  lines  may  be  established  by  proof 
that,  in  the  absence  of  the  operator,  he  did 
receive  such  messages.  Western  U,  Teleg, 
Co,  V,  LiUard,  17:836,  110  S.  W.  1035,  86 
Ark,  208, 

2250,  That  one  in  charge  of  an  office  is 
the  agent  of  a  foreign  corporation  in  trans- 
acting the  business  there  may  be  found 
from  the  facts  that  the  name  of  the  cor- 
poration appears  on  the  office  signs,  that  it 
leases  the  telegraph  wire  connecting  the 
office  with  its  own,  that  the  bank  deposit 
is  kept  in  its  name,  that  the  contracts  made 
at  the  office  bear  the  name  of  the  agent,, 
"Correspondent"  of  the  corporation,  and 
that  settlement  has  been  made  by  the  cor- 
poration on  such  contracts,  Mullen  v,  J. 
J.  Quinlan  &  Co.  24:  511,  87  N.  E,  1078,  195 
N,  Y,  109, 

2251,  2252.  A  foreign  insurance  company 
does  not  establish  that  a  person  served  in  an 
action  on  an  accident  policy  was  not  its 
agent,  by  proof  that  such  person  had  no 
authority  to  solicit  insurance,  accept  mem- 
bers, or  receive  assessments  for  it,  where 
it  does  not  deny  that  such  person  had  per- 
formed such  acts  as  would  constitute  him 
its  agent  under  a  statute  providing  under 
what  circumstances  a  person  acting  for 
insurance  companies  shall  be  deemed  its 
agent.  Taylor  v,  Illinois  Commercial  Men's 
Asso,  24:  1174,  122  N.  W,  41,  84  Neb,  799. 
Carrier  and  passenger. 

2253,  The  jury  may  find  the  acceptance  of 
one  as  a  passenger  on  a  street  car  from  the 
fact  that,  although  he  boarded  the  car 
while  moving  between  signal  posts,  and  re- 
mained standing  on  the  running  board,  the 
conductor,  who  saw  Uim,  made  no  objection, 


1240 


EVIDENCE,  XII.  g,  h. 


where  there  is  nothing  to  show  knowledge, 
express  or  implied,  on  the  part  of  the  pas- 
senger that  passengers  would  not  be  received 
under  such  circumstances.  Lockwood  v. 
Boston  Elevated  R.  Co.  22:  488,  86  N.  E.  934, 
200  Mass.  537. 

g.  To    overcome    writing,    pleading    or 
judicial  proceeding. 

(See  also   same  heading  in  Digest  L.R.A. 
1-10.) 

2254.  The  evidence  to  impeach  a  certificate 
of  acknowledgment  of  an  instrument  regu- 
lar on  its  face  must  be  clear  and  convincing, 
-as  the  presumption  in  favor  of  the  truth 
of  the  certificate  is  strong.  People's  Gas 
Co.  y.  Fletcher,  41:  1161,  105  Pac.  34,  81 
Kan.  76.  (Annotated) 

2255.  The  testimony  of  a  party  to  a  cer- 
tificate of  acknowledgment  of  a  deed,  deny- 
ing both  the  execution  of  the  deed  and  the 
acknowledgment,  is  admissible  and  is  en- 
titled to  as  much  weight  as  that  of  any 
other  interested  witness.  People's  Gas  Co. 
v.  Fletcher,  41:  1161,  105  Pac.  34,  81  Kan. 
76. 

2256.  The  date  of  adjournment  of  the  leg- 
islature, as  shown  by  its  journals,  is  not 
■contradicted  or  rendered  uncertain  by  rec- 
ord evidence  therein  of  the  transaction  of  a 
large  amount  of  business  within  a  short  pe- 
riod of  time.  Capito  v.  Topping,  22:  1089, 
M  S.  E.  845,  65  W.  Va.  587. 

Trust;  mortgage;  deed. 

2257.  The  unsupported  denial  of  the  grant- 
or is  not  suflScient  to  impeach  a  deed  prop- 
erly signed  and  acknowledged.  Ford  v. 
Ford,  6:  442,  27  App.  D.  C.  401.  (Annotated) 

2258.  The  vendor  must  establish  the  agree- 
ment beyond  a  reasonable  doubt  to  vary  a 
<ieed  for  a  named  consideration  which  ex- 
cepts an  encumbrance  from  the  covenant  of 
warranty,  so  as  to  establish  an  agreement 
on  the  part  of  the  vendee  to  assume  and 
pay  the  encumbrance  as  part  of  the  consid- 
eration for  the  conveyance.  Enos  v.  An- 
<ler8on,  15:  1087,  93  Pac.  475,  40  Colo.  395. 
Pleading. 

Admissions  in,  see  supra,  1261-1265. 

h.  Documents    generally;    official    acta 
or  records;  detfionstrative  evidence. 

{See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Statute  making  statements  in  bill  of  lad- 
ing conclusive  in  favor  of  bona  fide 
holder,  see  Commebce,  75. 

Proof  of  service  of  process,  see  Writ  and 
Process,  III. 

2259.  Letters  with  which  a  father  has 
nothing  to  do  will  not  support  a  charge 
against  him  for  alienating  the  affections  of 
his  daughter  from  her  husband.  Beisel  v. 
Oerlach,   18:  516,   70  Atl.   721,  221   Pa.  232. 

2260.  A  deposition  of  a  witness,  introduced 
to  contradict  his  testimony  at  the  trial,  is 
not  positive  evidence  of  the  facts  stated  in 
Digest  1-52  I^R.A.(N.S.) 


I  it,  which  could  become   the  basis  of  a  re- 
1  covery    in   the   case.     Hobbs   v.    George   W. 

Blanchard  &  Sons  Co.  18:  939,  70  Atl.  1082, 

75  N.  H.  73. 

Recitals  in  documents. 

2261.  Recitals  in  a  conveyance  of  land, 
former  deed  to  which  is  unrecorded,  of  pay- 
ment of  a  valuable  consideration,  afford 
no  evidence  thereof  as  against  strangers. 
Conklin  v.  Kruse,  36:  1124,  108  Pac.  866, 
82  Kan.  358. 

2262.  The  recital  in  a  release  of  a  mort- 
gage, that  it  was  executed  in  consideration 
of  the  payment  of  the  debt  named  tiierein, 
while  prima  facie  evidence  of  the  fact 
stated,,  is  not  conclusive  thereof,  and  such 
recital  may  be  overcome  by  evidence  which 
clearly  shows  that  said  debt  liad  not  in 
fact  been  paid.  Pettit  v.  Louis,  34:  356, 
129  N.  W.  1005,  88  Neb.  496. 

Official  acts  and  records  generally. 
Presumption  and  burden  of  proof,  see  su- 
pra, II.  i. 

2263.  When  process  is  delivered  by  the 
clerk  to  an  officer  for  service  the  notation 
of  the  officer  on  it  as  to  the  date  of  its  re- 
ceipt by  him  is  controlling  evidence  f  ,  to 
when  it  was  issued.  Smith  v.  Cashie  &  C. 
R.  &  Lumber  Co.  5:  439,  54  S.  E.  788,  142  N. 
C.  26. 

2264.  A  certificate  of  protest  by  a  notary 
public  affords  prima  facie  evidence  of  the 
facts  therein  recited.  Patton  v.  Bank  of 
La  Fayette,  5:  592,  53  S.  E.  664,  124  Ga. 
965. 

2265.  Only  such  force  and  effect  will  be 
given  to  copies  of  the  records  of  deeds  and 
other  similar  private  writings,  made  in  a 
sister  state,  as  are  given  thereto  by  the 
law  of  such  state;  and  it  must  appear  that 
the  record  was  one  authorized  and  provid- 
ed for  by  statute.  Wilcox  v.  Bergman, 
5:  938,  104  N.  W.  955,  96  Minn.  219. 

—  Judicial  proceedings. 

2266.  A  judgment  rendered  by  a  justice  of 
the  peace  of  another  state  cannot  be  proved 
in  North  Dakota  by  an  authenticated  copy 
of  the  record  of  such  justice's  court,  as 
neither  the  act  of  Congress  (U.  S.  Rev.  Stat. 
§  905,  U.  S.  Comp.  Stat.  1901,  p.  677)  nor 
N.  D.  Rev.  Codes  1905,  §  7292,  relating  to 
the  authentication  of  copies  of  judicial  rec- 
ords of  other  states,  applies  to  the  records 
of  courts  of  limited  jurisdiction.  Strecker 
V.  Railson,  8:  1099,  111  N.  W.  612,  16  N.  D. 
68. 

2267.  Filing  an  abstract  of  a  judgment 
rendered  by  a  justice  of  the  peace  in  the 
office  of  the  clerk  of  the  district  court  of 
Minnesota  does  not  make  such  judgment 
thereafter  a  judgment  of  the  district  court, 
or  entitle  it  to  be  proved  by  authenticated 
copy  either  under  U.  S.  Rev.  Stat.  §  905  (U. 
S.  Comp.  Stat.  1901,  p.  677),  or  N.  D.  Rev. 
Codes  1905,  §  7292,  relating  to  the  authenti- 
cation of  copies  of  judicial  records  of  other 
states,  but  which  do  not  apply  to  the  rec- 
ords of  courts  of  limited  jurisdiction. 
Strecker  v.  Railson,  8:  1099,  111  N.  W.  612, 
16  N.  D.  68. 

2268.  A  plea  of  former  judgment  is  estab- 
lished by  the  introduction  of  the  record  of 


EVIDENCE,  XII.  i. 


1241 


a  judgment,  an  inspection  of  which  dis- 
closes the  fact  that  the  parties  and  the 
cause  of  action  are  the  same  as  in  the  one 
pending.  Moore  v.  Chattanooga  Electric  R. 
Co.  i6:  978,  109  S.  W.  497,  119  Tenn.  710. 

2269.  The  record  of  the  trial  court  instead 
of  that  of  the  appellate  court  is  not  neces- 
sary to  prove  a  former  judgment,  although 
the  latter  merely  affirms  the  judgment  of 
the  former,  where  it  has  jurisdiction  to 
enter  a  final  judgment,  and  the  trial  court 
can,  upon  receiving  its  mandate,  only  exe- 
cute it,  without  the  exercise  of  any  ju- 
dicial discretion  in  the  matter.  Moore  v. 
Chattanooga  Electric  R.  Ca,  16:  978,  109  S. 

■  W.  497,  119  Tenn.  710. 
Demonstrative  evidence. 

2270.  Conclusive  effect,  as  a  matter  of 
law,  should  not  be  accorded  by  the  jury 
to  photographs  admitted  in  evidence,  but 
the  weight  given  them  should  depend  upon 
the  skill,  accuracy,  and  manner  in  which 
they  were  taken;  and  they  should  be  con- 
sidered under  the  same  tests  as  other  evi- 
dence. Higgs  V.  Minneapolis,  St.  P.  &  St. 
Ste.  M.  R.  Co.  15:  1162,  114  N.  W.  722,  16 
N.  D.  446.  (Annotated) 

i.  Contracts. 

(See  also  same  heading  in  Digest  LJt.A. 
1-10.) 

Presumption  and  burden  of  proof,  see  supra, 

II.  k. 
Fraud   in    respect  to   contract,    see    supra, 

2082,  2085. 

2271.  Testimony  of  parties  to  a  contract 
who  are  of  average  intelligence,  that  they 
did  not  know  of  a  provision  in  it,  although 
they  had  an  opportunity  to  examine  it,  may 
be  adopted  by  the  court  where  the  provision 
renders  the  contract  obnoxious  to  every 
sense  of  fairness,  honesty,  and  right,  and 
is  such  as  to  make  its  enforcement  clearly 
unconscionable.  Stone  v.  Moody,  5:  799,  84 
Pac.  617,  41  Wash.  680. 

2272.  The  mere  statement  of  the  bookkeep- 
er of  a  building  contractor,  as  to  what  has 
been  expended  in  the  prosecution  of  the 
contract,  is  sufficient  to  justify  a  decree 
against  the  owner,  who  has  broken  the  con- 
tract, for  that  amount,  without  showing 
the  items  on  which  it  is  founded,  if  there 
is  nothing  to  question  its  correctness. 
Brady  v.  Oliver,  41:60,  147  S.  W.  1135, 
125  Tenn.  595. 

2273.  That  a  broker  had  performed  the 
service  which  was  to  entitle  him  to  his 
commission  may  be  established,  in  the  ab- 
sence of  evidence  to  the  contrary,  by  evi- 
dence that,  just  prior  to  the  consumma- 
tion of  the  purchase,  his  principal  offered 
him  a  compensation  different  from  that 
called  for  by  his  contract,  in  lieu  of  the 
latter.  McLure  v.  Luke,  24:  659,  154  Fed. 
647,  84  C.  C.  A.   1. 

2274.  Parol  proof  of  a  promise  by  a  foster 
father  to  compensate  his  foster  daughter 
for  services  rendered  him  during  his  last 
illness,  or  circumstances  from  which  such  a 
Digest   1-52  L.R.A.CN.S.) 


promise  can  be  implied,  without  at  least 
some  corroboration,  is  insufficient  to  bind 
the  estate  of  the  deceased  parent.  Re  Daste, 
29:  297,  51  So.  677,  125  La.  657. 

2275.  A  jury  finding  that  an  employer 
agreed  to  pay  an  injured  employee  his  wages 
until  he  was  able  to  resume  work  is  sus- 
tained by  testimony  of  the  injured  employee 
that  the  assistant  general  manager  of  the 
defendant  told  him  that,  if  he  would  forego 
suit  for  damages  for  alleged  mistreatment 
accorded  him  at  a  hospital  to  which  he  had 
gone  at  the  request  of  the  employer,  such 
wages  would  be  paid  him,  corroborated 
by  the  fact  that  checks  signed  by  such 
manager  for  the  company  for  wages  for  por- 
tions of  such  time  were  subsequently  ten- 
dered to  him  and  were  accepted  and  cashed 
by  the  company,  although  such  assistant 
manager  denied  having  jnade  the  compro- 
mise agreement.  Heath  v.  Potlatch  Lumber 
Co.  27:  707,  108  Pac.  343,  18  Idaho,  42, 

2276.  Evidence  that  an  elderly  man  was 
invited  to  a  lawyer's  office  where  a  deed  of 
trust  had  been  drawn  up  by  the  lawyer,  at 
the  instance  of  a  son,  by  the  terms  of  which 
the  old  gentleman's  property  was  conveyed 
to  a  trustee  for  his  life,  with  directions  to 
apply  a  certain  part  of  the  income  to  the 
support  of  the  father  and  the  balance  to  the 
expense  of  the  trust  and  payment  of  cer- 
tain mortgages  on  some  of  the  property; 
that  the  old  gentleman  was  urged  to  sign 
it,  and  told  that  unless  he  did  so  a  proceed- 
ing for  the  appointment  of  a  guardian  for 
him  would  be  begun,  and  thereupon,  under 
the  urging  of  the  lawyer  and  the  son,  and 
without  time  to  reflect  or  consult  with 
friends,  he  signed  the  instrument,  saying  at 
the  time  that  he  was  signing  his  life 
away, — is  sufficient  to  sustain  a  judgment 
o*  the  trial  court  canceling  the  instrument. 
Hogan  V.  Leeper,  47:  475,  133  Pac.  190,  37 
Okla.  655. 

2277.  Where  defendants  had  guaranteed 
the  faithful  performance  of  a  certain  con- 
tract, and  were  sued  for  the  breach  thereof^ 
on  such  guaranty,  it  was  not  necessary  to 
prove  the  signature  of  the  plaintiff  to  the 
original  contract,  it  being  shown  that  he 
had  accepted  the  same  and  had  shipped 
goods  thereunder,  and  the  signatures  of  the 
other  party  and  of  the  guarantors  being 
proved.  W.  T.  Rawleigh  Medical  Co.  v. 
Laursen,  48:  198,  141  N.  W.  64,  25  N.  D 
63. 

2278.  Evidence  that  the  father  of  a  young 
child  turned  it  over  to  the  parents  of  its 
deceased  mother,  intrusting  it  to  them  to 
raise,  that  he  contributed  to  its  support, 
and  thereafter,  upon  his  second  marriage,, 
took  the  child  to  his  home,  but  allowed  it 
to  visit  its  grandparents,  is  insufficient  to 
show  a  contract  on  the  part  of  the  father,^ 
surrendering  the  permanent  custody  and 
control  of  the  child.  Jamison  v.  Gilbert, 
47:  1 133,  135  Pac.  342,  38  Okla.  751. 

2279.  That  one  who  entered  into  possession 
of  land  under  a  sublease,  and  who  contin- 
ued in  possession  after  the  expiration  of 
the  parr.mount  lease,  paying  rent  to  the 
superior    landlord,    attorned   to   him    either 


1242 


EVIDENCE,  XII.  j. 


to  avoid  eviction  or  by  consent  of  his  les- 
sor, may  be  found  from  hij  statement  that 
he  paid  rent  to  the  superior  landlord  be- 
cause he  owned  the  property.  Nashua 
Light,  H.  &  F.  Co.  V.  Francestown  Soap- 
stone  Co.  i8:  396,  69  Atl.  883,  74  N.  H.  511. 

2280.  That  a  grantee  of  land  assumed  a 
mortgage  thereon  is  established  by  the  fact 
that  he  pajd  the  interest,  secured  a  reduc- 
tion of  the  rate,  made  payments  on  the 
principal,  and  finally  gave  his  check  for 
the  balance  due,  although  the  latter  was 
surrendered  and  the  debt  allowed  to  stand. 
Senninger  v.  Rowley,  18:  223,  116  N.  W. 
695,  138  Iowa,  617. 

2281.  The  making  of  general  repairs  by 
the  landlord  of  such  nature  as  are  common- 
ly made  while  the  tenant  remains  in  posses- 
sion, before  the  expiration  of  the  term,  on 
property  which  has  been  abandoned  by  the 
tenant,  is  not  conclusive  evidence  of  accept- 
ance of  the  surrender,  if  there  has  been  a 
distinct  refusal  to  accept  it.  Smith  v.  Hunt, 
35:  1132,  79  Atl.  826,  32  R.  I.  326. 

(Annotated) 

Gift. 

2282.  The  evidence,  to  prove  gift  of  a  life 
insurance  policy  by  mere  delivery,  should 
be  full,  clear,  and  convincing.  Gledhill  v. 
McCoombs,  45:  26,  86  Atl.  247,  110  Me.  341. 

2283.  The  rule  that  a  gift  of  real  estate  can 
be  established  only  by  clear  and  unequivocal 
proof  means  merely  that  the  evidence  must 
be  such  that  a  reasonably  satisfactory  con- 
clusion may  be  reached  by  something  more 
than  a  mere  balancing  of  doubts  and  proba- 
bilities. Bevington  v.  Bevington,  9:  508,  110 
N.  W.  840,  133  Iowa,  351.  (Annotated) 
Delivery  of  deed. 

2284.  Evidence  that  the  owner  of  a  govern- 
ment homestead  signed,  acknowledged,  and 
registered  a  deed  thereof  to  his  brother  is 
insufficient  to  show  delivery  thereof,  where 
there  is  also  evidenc  that  he  m^de  the  deed 
for  the  purpose  of  apparently  devesting  him- 
self of  title  in  order  to  pre-empt  a  tract  of 
government  land,  and  that  he  kept  the  deed 
in  his  own  hands  and  did  not  intend  to  de- 
liver it,  and  that  he  retained  possession  of 
the  homestead.  McGuire  v.  Clark,  23:  873, 
122  N.  W.  675,  85  Neb.  102. 

Time  of  altering  instrnment. 

2285.  That  an  impression  of  the  name  of 
the  grantee  indorsed  on  the  back  of  a  deed, 
from  which  an  initial  had  been  erased, 
which  was  accidentally  made  upon  a  blank 
space  on  the  paper,  by  exposure  to  the 
weather  soon  after  the  deed  was  delivered, 
shows  the  initial  to  be  missing,  is  strong 
corroborative  evidence  that  the  erasure  was 
made  before  delivery.  Tharp  v.  Jamison, 
39:  100,  134  N.  W.  583,  154  Iowa,  77. 

2286.  Evidence  tending  to  show  that  a 
provision  limiting  liability  was  a  part  of  a 
contract  of  gfuaranty  when  delivered,  and 
that  it  had  been  added  to  the  contract  at 
the  request  of  the  guarantor,  accompanied 
by  the  unexplained  fact  that  such  pro- 
vision had  been  cross  marked  when  oflFered 
in  evidence  by  the  one  guaranteed,  in  whose 
possession  it  had  been,  is  sufficient  to  sus- 
tain a  finding  that  the  markings  were 
Digest  1-52  L.R.A.(N.S.) 


placed  on  the  instrument  after  delivery, 
wiinout  the  consent  of  the  guarantor  and 
with  the  intention  of  canceling  the  clause 
limiting  liabilitv.  0.  N.  Bull  Remedy  Co.  v. 
Clark,  32:  519,  i24  N.  W.  20,  109  Minn.  396. 
Liability  of  surety   on  bond. 

2287.  In  an  action  against  a  city  treasurer 
and  his  surety  for  sliortages  in  the  treasur- 
er's account,  evidence  as  to  the  amount  of 
money  received  by  the  treasurer  as  shown 
by  his  receipt  to  the  county  treasurer,  which 
he  was  required  by  statute  to  give,  and  of 
a  less  amount  accounted  for  by  him  as 
shown  by  his  report  to  the  mayor  and 
council  of  the  city,  both  which  receipts  and 
reports  are  properly  identified  by  the  treas- 
urer, constitutes  a  prima  facie  case  of  short- 
age, and,  unless  explained,  is  sufficient  to 
support  a  finding  of  such  shortage,  especial- 
ly where  the  treasurer  testified  that  the 
shortages  as  shown  by  the  receipts  and  re- 
ports were  never  made  up  by  him,  and  he 
is  corroborated  in  this  testimony  by  others. 
Dickinson  v.  White,  49:  362,  143  N.  W.  754, 
25  N.  D.  523. 

2288.  Evidence  that  a  guardian  had  been 
removed  from  office  by  order  of  court,  and 
the  amount  due  from  him  to  his  said  ward 
determined,  and  judgment  entered  directing 
him  to  pay  over  that  amount  to  the  person 
entitled  to  receive  the  same;  that  his  suc- 
cessor had  been  duly  appointed  and  quali- 
fied, and  had  made  demand  for  the  amount 
so  found  due;  and  that  there  had  been  a 
refusal  to  pay  the  same  or  any  part  there- 
of,— is  sufficient  to  sustain  a  verdict  against 
the  surety  on  such  guardian's  bond.  South- 
ern Surety  Co.  v.  Burney,  43:  308,  126  Pac. 
748,  34  Okla.  552. 

Novation. 

Sufficiency  of,  to  establish  novation,  see  No- 
vation, 1. 

i.  Wills. 

(See  also  same  heading  in  Digest  LJt.A. 
1-10.) 

Presumption  and  burden  of  proof,  see  su- 
pra, 571-677. 

Undue  infiuence  on  execution  of,  see  supra, 
2105-2108. 

Testamentary  capacity,  see  supra,  2223- 
-      2225. 

Intent  of  testator,  see  supra,  2230. 

2289.  A  will  which  there  is  evidence  tend- 
ing to  show  had  been  duly  signed  in  ink  by 
the  testator  below  the  attestation  clause,  in 
the  presence  of  the  subscribing  witnesses, 
and  a  few  weeks  later  delivered  by  him  to 
the  executrix,  who  retained  possession  of 
it  until  the  testator's  death,  was  properly 
admitted  to  probate,  although,  when  pro- 
duced for  that  purpose,  the  testator's  sig- 
nature had  been  partially  erased  by  knife 
scratches  and  written  in  pencil  above  the 
attestation  clause,  apparently  by  the  testa- 
tor, although  when,  by  whom,  or  with  what 
purpose,  was  not  shown.  Kirbv  v.  Sellards, 
28:  270,  108  Pac.  73,  82  Kan.  291. 


EVIDENCE,  XII.  k. 


1243 


2290.  A  receipt  by  one  who  receives  a  pay- 
ment of  money  from  a  testator,  relin(|iiiah- 
ing  all  claims  against  the  estate,  supported 
by  evidence  that  she  had  to  sign  away  what 
she  should  receive  out  of  the  estate,  is  suf- 
ficient to  establish  that  it  was  in  satis- 
faction of  the  legacy  provided  for  her  by 
the  will.  Johnson  v.  McDowell,  38:  588, 
.134  N.  W.  419,  154  Iowa,  38. 

2291.  That  a  will  was  executed  by  the  one 
whose  will  it  purports  to  be  may  be  found 
from  the  fact  that  he  announced  to  the 
scrivener  and  witnesses  that  he  was  such 
person,  and  signed  and  acknowledged  the 
will  as  such,  although  the  witnesses  had  no 
other  acquaintance  with  him  than  arose 
from  his  representation.  Harris  v.  Martin, 
ai:  531,  64  S.  E.  126,  150  N.  C.  367. 

(Annotated) 

2292.  A  will  attested  by  the  names  of  cer- 
tain persons  who  append  the  word  "wit- 
ness" to  their  signatures  may  be  admitted 
to  probate,  although  they  cannot  remember 
that  the  formal  requisites  to  the  execution 
of  the  will  were  duly  observed,  and  the  will 
contains  no  formal  attestation  clause.  Mead 
V.  Trustees  of  Presbyterian  Church  of  U.  S. 
14:  255,  82  N.  E.  371,  229  111.  626. 

( Annotated ) 
Of  attesting  xritnesses. 

2293.  The  statutory  rule  that  a  will  must 
be  proved  in  solemn  forii.  by  all  the  attest- 
ing witnesses  is  of  necessity  dispensed  with 
v/here  the  production  of  all  is  impossible 
because  some  are  beyond  the  jurisdiction  of 
the  court,  and  in  such  cases  the  due  exe- 
cution of  the  will  may  be  proved  by  the 
subscribing  witnesses  who  can  be  produced, 
and  proof  of  due  attestation  by  the  requi- 
site number  of  witnesses  may  be  made  by 
proving  the  handwriting  of  the  others. 
Wells  v.  Thompson,  47:  722,  78  S.  E.  823, 
140  Ga.   119.  (Annotated) 

2294.  Where,  owing  to  the  failure  of  the 
memory  of  the  subscribing  witnesses,  after 
the  lapse  of  a  long  time,  it  is  impossible 
to  obtain  direct  testimony  that  the  testator's 
signature  was  attached  to  his  will  at  the 
time  of  its  attestation,  resort  may  be  had 
to  circumstances  to  supply  the  deficiency; 
and  the  uncontradicted  testimony  of  one  of 
the  witnesses  that  the  testator  came  into 
the  room  where  the  witnesses  were  with 
pen,  ink,  and  the  paper  in  his  hand,  sat 
down  for  a  moment  at  the  table,  arose,  and, 
handing  the  pen  to  the  first  witness,  said 
it  was  his  will  and  asked  them  to  sign  it, 
is  sufficient  to  this  end.  Re  Strachan, 
51:  927,  136  Pac.  1175,  56  Colo.  77. 

(Annotated) 
From  attestation  clause. 

2295.  Proof  that  the  signature  to  a  will 
was  not  that  of  testator  is  not  sufficient 
to  overthrow  the  presumption  of  its  due  ex- 
ecution aflTorded  by  the  recitals  of  the  at- 
testation clause,  when  the  witnesses  are 
dead  and  cannot  testify  to  the  fact  of  prop- 
er execution.  Elston  v.  Montgomery,  26: 
420,  90  N.  E.  3.  242  111.  348. 

Digest  1-52  L.R.A.(N.S.) 


7c.  Miscellaneous  civil  cases. 

(See  aJ.90  same  heading  in  Digest  L.R.A 
1-10.) 

Statute  making  statements  in  bill  of  lading 
conclusive  evidence  in  favor  of  holder 
thereof,  see  Bills  of  Lading,  5. 

Impeaching  award  of  damages  in  eminent 
domain  case  by  testimony  of  coiumis- 
sioners   fixing,   see   Damaces,   555. 

What  proof  necessary  to  show  dedication  of 
water,   see   Dkdication,    11. 

To  establish  perjury  in  suit  to  restrain  en- 
forcement of  judgment  because  of  per- 
jury, see  Injunction,  286. 

To  sustain  action  under  civil  damage  acts, 
see   Intoxicating    Liquous,    188. 

Written  resignation  as  conclusive  evi- 
dence of  intent  to  relinquish  ollice,  see 
Officebs,   48. 

2296.  The  jury  are  not  bound  by  the  rea- 
son given  for  his  acts  by  one  accused  of 
wrongfully  shadowing  another.  Sciiultz  v. 
Frankfort  Marine  Acci.  &  Plate  Glass  Ins. 
Co.  43:  520,  139  N.  W.  386,  151  Wis,  537. 

2297.  The  unauthorized  act  of  a  president 
of  a  corporation  in  borrowing  money  on 
its  behalf  is  not  evidence  of  the  reception 
of  the  money  by  the  corporation.  Thomp- 
son V.  Laboringman's  Mercantile  &  Mfg.  Co. 
6:  311,  53  S.  E.  908,  60  W.  Va.  42. 

2298.  That  the  owner  of  a  tenement  build- 
ing placed,  or  caused  to  be  placed,  a  mat  at 
the  outer  door,  may  be  found  .rom  the  facts 
that  it  was  in  such  place  and  was  owned 
by  him.  McGowan  v.  Monahan,  17:  928,  85 
N.  E.  105,  199  Mass.  296. 

2299.  Donations  and  promises  of  future 
assistance,  made  by  an  employer  to  the 
family  of  a  workman  who  was  accidentally 
injured  in  his  service,  do  not  tend  to  show 
a  recognition  of  liability  by  the  employer. 
Binewicz  v.  Haglin,  15:  1096,  115  N.  W.  271, 
103  Minn.  297. 

2300.  That  an  executor  used  funds  of  the 
estate  to  pay  his  individual  debt  may 
be  found  from  the  fact  that  the  amount 
of  the  check  drawn  by  him  as  executor, 
calling  for  an  amount  of  dollars  and  cents 
represented  by  numerous  figures,  was 
credited  on  his  private  debt.  Davis  v. 
Hall,  40:  1136,  83  Atl.  653,  86  Vt.  31. 

2301.  Positive  testimony  that  a  telegram 
containing  instructions  to  trainmen  was 
sent  properly  addressed  is  not  overcome  by 
evidence  that  it  was  not  delivered  and  that 
the  original  had  been  lost  or  destroyed,  or 
by  the  fact  that  material  witnesses  are  dis- 
puted, discredited,  or  not  produced,  or  by 
the  fact  that  the  alleged  copy  contained  use- 
less information.  Graham  v.  Detroit,  G.  H. 
&  M.  R.  Co.  25:  326,  115  N.  W.  993,  151 
Mich.  629. 

2302.  That  a  message  was  received  by  a 
telegraph  company  for  transmission  may 
be  found  from  evidence  that,  in  response 
to  a  telephone  request  made  to  the  person 
answering  the  call  for  the  company's  num- 
ber, a  messenger  appeared  and  took  the 
message,  which  had  been  written  on  one  of 


1244 


EVIDENCE,  XII.  k. 


the  company's  blanks,  to  carry  it  to  the 
company's  office,  although  the  blank  con- 
tained a  stipulation  making  the  messenger 
the  agent  of  the  sender.  Alexander  v. 
Western  U.  Teleg.  Co.  42:  407,  74  S.  E.  449, 
158  N.  C.  473. 

2303.  In  a  case  where  defendant  was  en- 
joined from  keeping  intoxicating  liquors  in 
a  certain  place  for  sale  and  from  selling 
them  at  that  place,  proof  that  large  quanti- 
ties of  intoxicating  liquors  were  subse- 
quently purchased  by  him,  some  of  which 
were  kept  at  the  place,  and  that  he  sold 
a  pint  of  whisky  to  a  purchaser,  is  suffi- 
cient to  uphold  a  judgment  finding  him 
guilty  of  contempt.  State  v.  Mever,  40:  90, 
122  Pac.  101,  86  Kan.  793. 

2304.  That  an  automobile  was  not  duly 
registered  at  the  time  of  an  accident  may 
be  found  from  the  facts  that  at  that  time  it 
bore  a  register  number  of  a  former  owner, 
which  by  statute  expired  at  the  time  of  the 
transfer  of  the  machine.  Feeley  v.  Melrose, 
27:  1156,  91  N.  E.  306,  205  Mass.  329. 

2305.  A  person  may  be  found  to  have  been 
in  a  building  at  the  commencement  of  a 
fire  which  burned  it,  from  the  fact  that  a 
short  time  prior  thereto  he  was  seen  to  go 
into  it  to  perform  some  work,  and  after  the 
fire  commenced  was  found  in  the  building 
in  an  unconscious  condition.  Wilkinson  v. 
JEtna  L.  Ins.  Co.  25:  1256,  88  N.  E.  550, 
240  111.  205. 

2306.  The  abandonment  of  a  claim  by  an 
employee  for  compensation  for  extra  serv- 
ices cannot  be  found  from  the  mere  fact 
that  it  was  uncollected  when  the  employer 
made  an  assignment  for  creditors.  Rich- 
ardson V.  Anderson,  25:  393,  72  Atl.  485, 
109  Md.  641. 

2307.  Evidence  of  a  dealer's  usual  custom 
of  sending  out  bills  to  customers  the  first 
of  every  month,  showing  the  goods  bought 
during  the  preceding  month  and  the  bal- 
ance over,  is  not  sufficient  to  establish  the 
fact  that  certain  bills  were  rendered  to  a 
customer  sought  to  be  charged  with  their 
receipt.  United  Hardware-Furniture  Co. 
V.  Blue,  35:  1038,  52  So.  364,  59  Fla.  419. 

2308.  That  the  purchase  price  of  land 
forming  part  of  a  decedent's  estate  went  to 
satisfy  debts  which  were  an  encumbrance  on 
the  title  of  the  heir,  so  as  to  require  him 
to  refund  it  before  he  can  recover  the  prop- 
erty from  the  purchaser  in  case  the  sale 
was  illegal,  is  shown  by  the  fact  that  the 
account  of  the  administrator  as  allowed  by 
the  court  shows  that,  after  the  estate  was 
credited  with  the  purchase  money,  it  was 
still  indebted  to  the  administrator.  Milli- 
can  V.  McNeill,  21:  60,  114  S.  W.  106,  102 
Tex.  189. 

2309.  A  finding  in  an  equity  suit  to 
compel  the  furnishing  of  siding  facilities 
by  a  railroad,  of  repeated  demands  upon 
the  railroad  company  to  do  so,  covering 
a  long  period  of  time,  not  necessary  to 
the  decree,  and  based  upon  immaterial 
evidence,  is  not  sufficient  to  establish  such 
demand  in  a  subsequent  action  at  law  to 
hold  the  company  liable  in  damages  for 
failure  to  do  so.  Moser  v.  Philadelphia, 
Digest  1-52  I<.R.A.(N.S.) 


H.    &    P.    R.    Co.    40:  519,    82    Atl.    362, 
233    Pa.    259. 

2310.  Evidence  that  upon  one  freight  car 
of  the  train  in  question,  at  some  time,  by 
someone  unknown,  there  had  been  •  written 
with  chalk  the  name  of  a  certain  station, 
and  that  destinations  were  sometimes  thus 
indicated,  is  not  sufficiently  probative  to 
warrant  a  finding  that  such  car  was  then 
being  moved  to  such  station.  Barker  v. 
Kansas  City,  M.  &  0.  R.  Co.  43:  1121,  129 
Pac.  1151,  88  Kan.  767. 

2311.  A  connecting  carrier  may  be  found 
to  have  received  a  package  of  goods  for 
transportation,  where  it  was  part  of  a  ship- 
ment consisting  of  two  packages,  the  other 
of  which  was  delivered  by  it  to  the  consign- 
ee, and  its  checic  mark  appears  on  the  way- 
bill for  the  one  in  question,  and  it  collected 
an  expense  bill  for  its  transportation  from 
the  consignee,  although,  a  niontli  later,  the 
package  was  found  in  possession  of  a  rival 
carrier  at  the  point  of  destination.  Chica- 
go, R.  I.  &  P.  R.  Co.  V.  Pfeifer,  22:  1107,  119 
S.  W.  642,  90  Ark.  524. 

2312.  A  direction  by  the  conductor  of  a 
street  car  to  a  workman  who  attempts  to 
board  the  car  encumbered  with  tools  and 
materials  which  may  be  objectionable  to 
other  passengers  and  obstruct  their  ingress 
and  egress,  to  go  to  the  front,  may  be  found 
by  the  jury  to  mean  ths  front  platform. — 
especially  where  he  has,  under  similar  cir- 
cumstances, been  sent  to  the  front  platform 
on  former  occasions.  Mittleman  v.  Phila- 
delphia R.  T.  Co.  18:  503,  70  Atl.  828,  221 
Pa.  485. 

2313.  A  team  need  not  be  shown  to  be  in 
a  state  of  frenzy,  and  running  at  very  great 
speed  from  fright,  to  establish  that  it  was 
beyond  the  control  of  the  driver.  Sarles 
V.  Chicago,  M.  &  St.  P.  R.  Co.  21:  415,  120 
N.  W.  232,  138  Wis.  498. 

2314.  The  viciousness  of  a  steer  permitted 
to  stray  onto  the  highway  is  shown  by  the 
fact  that  he,  without  cause.  :.ttacked  a  trav- 
eler thereon.  Harris  v.  Carstea^  Packing 
Co.  6:  1164,  86  Pac.  1125,  43  Wash.  647. 

2315.  A  judgment  disbarring  an  attorney 
from  the  practice  of  law  will  not  be  dis- 
turbed where  the  evidence  shows  that,  while 
acting  as  agent  for  the  sale  of  real  estate, 
he  retained  a  portion  of  the  purchase  price 
belonging  to  his  client  to  cover  the  accrued 
taxes  upon  such  land,  after  he  had  received 
a  similar  amount  from  the  buyer,  apparent- 
ly for  the  same  purpose,  and  the  only  at- 
tempted justification  therefor  was  the  at- 
torney's uncorroborated  statement  that  he 
had  paid  the  first  amount  to  a  third  party 
in  whose  name  the  deed  had  been  originally 
drawn,  which  statement  was  explicitly  con- 
tradicted by  direct  testimony.  Re  Wilson, 
21:  517,  100  Pac.  635.  79  Kan.  674. 

2316.  Wanton  mutilation  of  a  dead  body 
on  a  railroad  track  bj'  engineers  in  charge 
of  passing  engines  cannot  be  found  in  the 
absence  of  evidence  of  their  knowledge  of  its 
presence.  Kyles  v.  Souther.i  R.  Co.  16:  405, 
61  S.  E.  278,  147  N.  C.  394. 

Valne;  damages. 

2317.  Damages  cannot  be  found  from  spec- 


EVIDENCE,  XII.  k. 


1245 


ulative  and  conjectural  evidence.  Altschul- 
er  V.  Atchison,  T.  &  S.  F.  R.  Co.  49:  491, 
144  N.  W.  294,  155  Wis.  146. 

2318.  Evidence  of  contributions  by  a  son 
to  his  parents,  without  anything  to  show 
their  amount,  is  not  sufficient  under  the 
Federal  employers'  liability  act  to  sustain 
a  verdict  in  their  favor  for  his  death  for 
$5,000.  McCullough  v..  Chicago,  R.  I.  &  P. 
R.  Co.  47:  23,  142  N.  W.  67,  160  Iowa,  524. 

2319.  Evidence  given  by  plaintiff,  a  labor- 
er, in  an  action  to  recover  damages  for  men- 
tal anguish  from  nondelivery  of  a  telegram 
in  time  to  enable  him  to  attend  his  father's 
funeral,  that  "I  felt  awful  sorry  because  I 
could  not  get  over  there,"  where  accom- 
panied by  evidence  that  he  had  returned 
home  to  visit  his  sick  father  at  frequent 
intervals,  is  sufficient  to  justify  a  verdict 
of  $350.  Nitka  v.  Western  U.  Teleg.  Co. 
49:  337,  135  N.  W.  492,  149  Wis.  106. 

2320.  In  an  action  for  destruction  of  a 
stock  of  goods,  where  the  plaintiff  testifies 
that  the  invoice  was  destroyed,  and  that 
she  cannot  particularize  or  enumerate  the 
goods,  but  that  they  were  of  the  aggregate 
value  of  $1,250,  such  evidence,  though  in- 
definite, is  sufficient  upon  which  to  rest  a 
verdict  in  favor  of  the  plaintiff.  Russell 
V.  Little,  42:  363,  126  Pac.  529,  22  Idaho, 
429. 

2321.  Evidence  as  to  the  value  of  a  matured 
crop  of  corn  alone  is  not  sufficient  upon 
which  to  base  a  verdict  for  the  destruction 
of  a  growing  crop  of  com,  since,  the  meas- 
ure is  its  value  as  a  growing  crop  at  the 
time  and  place  of  destruction.  Thompson 
V.  Chicago,  B.  &  Q.  R.  Co.  23  :  310,  121  N.  W. 
447,  84  Neb.  482. 

2322.  The  refusal  of  a  person  to  employ 
a  discharged  employee,  because  he  was 
blacklisted,  is  evidence  of  injury  for  the 
consideration  of  the  jury,  although  such 
employee  informed  him  of  the  fact  under 
circumstances  which  leave  it  doubtful 
whether  the  purpose  was  not  collusive  to 
aid  a  contemplated  lawsuit.  Wi  liner  v. 
Silverman,  24:  895,  71  Atl.  962,  109  Md. 
341. 

2323.  Where,  in  an  action  by  a  tenant  for 
eviction,  the  measure  of  damages  must  be 
such  as  may  fairly  and  reasonably  be  con- 
sidered, either  arising  naturally  or  as  ac- 
cording to  the  usual  course  of  things  from 
the  breach  of  contract  itself,  or  such  as 
will  reasonably  be  supposed  to  have  been 
in  the  contemplation  of  both  parties  at  the 
time  they  made  the  contract,  as  the  probable 
result  of  the  breach  of  it,  lost  profits  can- 
not be  considered  unless  the  proof  of  them 
is  of  a  high  character  so  that  the  jury  is 
not  left  to  speculate  or  guess  what  they 
would  have  been.  Russell  v.  Olson,  37:  1217, 
133  N.  W.  1030,  22  N.  D.  410. 

As  to  negotiable  paper. 
Presumption  and  burden  of  proof  as  to,  see 
supra,  580-591. 

2324.  I'he  testimony  of  the  cashier  of  a 
bank  that  it  purchased  a  note  for  value,  be- 
fore maturity,  even  though  not  disputed,  is 
not  sufficient  to  establish  that  fact  as  mat- 
Digest   1-52  L.R.A.(N.S.) 


ter  of  law.     McKnight  v.  Parsons,  22:  718, 
113  N.  W.  858,  136  Iowa,  390. 

2325.  A  finding  that  the  holder  of  a  note 
who  was  not  a  dealer  in  commercial  paper 
is  not  a  bona  fide  purchaser  is  supported  by 
evidence  that  an  attorney  arranged  for  him 
to  take  notes  belonging  to  a  bank,  of  which 
that  in  question  was  one,  in  exchange  for 
his  note,  by  a  scheme  worked  out  by  his 
giving  his  note  to  the  cashier  of  another 
bank,  as  trustee,  depositing  as  collateral 
thereto  the  notes  taken  by  him,  and  cancel- 
ing the  credit  entered  on  its  books  by  his 
check  in  favor  of  the  selling  bank,  which 
surrenders  it  in  exchange  for  such  note,  he 
making  no  attempt  to  assert  the  good  faith 
of  his  purchase,  or  to  negative  the  fact  that 
he  had  notice  of  defects  in  the  title  to  the 
notes  taken  by  him  in  exchange.  McKnight 
V.  Parsons,  22  :7i8,  113  N.  W.  858,  136  Iowa, 
390. 

Custom  and  usage. 

2326.  Evidence  of  a  street-car  passenger 
that  he  never  exercised  his  right  to  transfer 
from  one  car  to  another  except  at  a  cer- 
tain point  other  than  that  designated  by  the 
transfer  check  is  not  sufficient  to  establish 
a  custom,  and  is  therefore  not  admissible  in 
an  action  by  him  for  ejection  from  a  car 
because  of  refusal  to  pay  fare  after  his 
check  was  refused  on  the  ground  that  he 
had  not  complied  with  the  regulations  of  the 
company  as  to  the  point  of  transfer.  Short- 
sleeves  V.  Capital  Traction  Co.  8:  287,  28 
App.  D.  C.  365. 

Insurance   matters. 

Presumption  and  burden  of  proof,  see  supra, 

544-556. 
Death    of    insured,    see    supra,    2077-2080, 

2213-2215. 
Sufficiency  to  sustain  verdict  on  appeal,  see 

Appeal  and  Error,  909. 
Sufficiency  of  proof  of  death  of  insured  at 

certain  time,  see  Insurance,  646. 
Sufficiency   of   evidence   to  go   to  jury,   see 

Trial,  100,  10] . 

2327.  That  an  application  for  insurance, 
if  passed  on,  would  have  been  accepted,  may 
be  found  from  evidence  that  the  applicant 
was  young,  his  character  good,  his  occu- 
pation not  hazardous,  and  that  he  had 
passed  a  satisfactory  examination  and  been 
recommended  by  the  examining  physician. 
Duffy  V.  Bankers'  L.  Asso.  46:25,  139  N. 
W.  1087,  160  Iowa,  19. 

2328.  Testimony  that  the  signature  on  a 
benefit  certificate  and  acceptance  slip  is 
that  of  the  applicant  is  some  evidence  that 
it  was  accepted  by  him,  although  it  was 
found  in  the  custody  of  the  clerk  of  the 
local  camp  after  death  of  the  applicant. 
Sovereign  Camp,  W.  W.  v.  Hall,  41:  517, 
148  S.  W.  526,   104  Ark.  338. 

2329.  That  a  benefit  certificate  is  delivered 
to  an  applicant,  and  that  he  pays  the  as- 
sessment, is  some  evidence  that  he  has  been 
initiated  into  the  order,  where  such  initia- 
tion is  a  condition  precedent  to  the  certifi- 
cate becoming  effective.  Sovereign  Camp, 
W.  W.  V.  Hall,  41:  517,  148  S.  W.  526,  104 
Ark.  338. 

2330.  The  fact  that  a  receipt  for  an  assess- 


1246 


EVIDENCE,  XII.  k. 


ment  of  a  benefit  certificate  waa  dated  be- 
fore tlie  death  of  tlie  applicant  is  some  evi- 
dence tiiat  the  payment  was  made  before 
that  time.  Sovereign  Camp,  W.  W.  v.  Hall, 
41:  517,  148  S.  W.  526,  104  Ark.  338. 

2331.  'J  he  proof  of  death  ofl'ered  in  evi- 
dence by  a  claimant  under  a  life  insurance 
policy,  for  the  purpose  of  showing  that  it 
was  furnished  to  the  insurer  according  to 
the  requirements  of  the  policy,  is  not  evi- 
dence of  the  facts  therein  stated.  Metro- 
politan L.  Ins.  Co.  V.  People's  Trust  Co.  41: 
285,  98  N.  E.  513,  117  Ind.  57. 

2332.  A  waiver  of  the  conditions  in  a  fire 
insurance  policy  may  be  established  by  proof 
of  such  facts  and  circumstances  as  would 
reasonably  result  in  that  conclusion.  Gish 
V.  Insurance  Co.  of  N.  A.  13:  826,  87  Pac. 
869,   16  Okla.   59. 

2333.  Tlie  burden  resting  upon  one  seeking 
to  recover  on  an  accident  insurance  policy, 
of  showing  that  the  injuries  were  accident- 
al, may  be  sustained  by  circumstantial  evi- 
dence. Wilkinson  v.  .i4<]tna  L.  Ins.  Co.  25: 
1256,  88  N.  E.  550,  240   111.   205. 

2334.  That  fire  in  a  building  preceded  an 
explosion  may  be  found  from  evidence  that 
the  building  was  filled  with  dust  which 
would  not  explode,  but  would  burn  with 
such  velocity  as  to  produce  an  explosion, 
that  following  a  report  the  roof  went  oft' 
the  building,  under  which  was  a  cloud  of 
smoke  having  a  reddish-tinge  and  filled  with 
sparks,  and  that  boards  driven  into  grain 
piles  were  afterwards  found  to  be  charred 
and  burned,  which  could  only  be  accounted 
for  by  the  fact  that  they  were  burning  when 
the  explosion  occurred.  Wheeler  v.  Phenix 
Ins.  Co.  38:  474,  96  N.  E.  452,  203  N.  Y.  283. 
EfRcacy  of  device. 

2335.  That  a  device  ofiFered  by  a  physician 
for  the  cure  of  disease  is  worthless  cannot 
be  established  by  evidence  of  a  single  ex- 
periment by  a  person  not  shown  to  have 
been  8ufl"ering  from  any  disease,  or  to  be 
of  any  expert  capacity  in  the  observation 
or  investigation  of  devices  of  this  character, 
tending  to  show  no  eflfect  from  its  use. 
Macomber  v.  State  Board  of  Heakh, 
8:  585,  65  Atl.  203,  28  R.  I.  3. 

liibel  or  slander.  • 

Evidence  of  malice  in  making  statement,  see 
supra,  2098-2102. 

2336.  A  charge  of  slander  in  stating  that 
plaintiff  entered  a  house  and  stole  jewelry 
is  not  supported  by  evidence  that  the  slan- 
derer told  a  physician  that  the  jewels  had 
been  stolen  by  opening  the  house  with  a 
key,  and  requested  him  to  ascertain  if  plain- 
tiff had  them  secreted  on  her  person,  and 
that  the  slanderer  stated  that  plaintiff  had 
taken  the  jewels,  under  the  rule  that  the 
words  charged  must  be  specifically  proved, 
and  that  it  is  not  sufficient  to  establish  a 
basis  for  an  inference  that  the  alleged 
charge  vas  intended.  Fleet  v.  Tichenor,  34: 
323,  104  Pac.  458,  156  Cal,  343. 

23377 'In  an  action  for  slander  by  the  ut- 
terance of  words  imputing  a  crime  to  an- 
other, where  a  plea  of  justification  is  in- 
terposed, the  party  justifying  must  produce 
evidence  of  thci  acts  and  intent  which  are 
Digest  1-52  !L.R.A.(N.S.) 


material  elements  of  the  crime  imputed, 
suUiciently  preponderant  to  overcome  in  the 
minds  of  the  jury  the  legal  presumption  of 
innoci'uce  as  well  as  the  opposing  testi- 
mony ;  but  this  proof  need  not  go  to  the  ex- 
tent of  convincing  the  jury,  beyond  a  rea- 
sonable doubt,  of  the  truth  of  the  words 
imputing  the  crime.  Abraham  v.  Baldwin, 
10:  105 1,  42   So.   591,  52   Fla.   151. 

(Annotated) 
£stoppel. 

2338.  The  assertion  by  one  witness,  and 
denial  by  the  other,  that  one  selling  a  power 
plant  asserted  that  a  pond  was  a  part  of  the 
plant,  does  not  render  the  evidence  suffi- 
ciently clear,  precise,  and  unequivocal  to 
work  an  estoppel  on  the  vendor  to  deny  that 
the  pond  was  part  of  the  plant.  Coal  Belt 
Electric  R.  Co.  v.  Peabody  Coal  Co.  13:  1144, 
82  N.  E.  627,  230  111.  164. 
Reasonableness;  confiscatoriness. 

2339.  'Ihe  statutory  burden  placed  upon 
one  appealing  from  an  order  of  a  railway 
commission  to  establish  its  unreasonable- 
ness or  unjustness  by  "clear  and  satisfac- 
tory evidence"  requires  the  same  quantum 
of  proof  as  is  necessary  to  establish  fraud 
or  prove  mistake  in  a  written  instrument, 
by  one  on  whom  the  burden  rests  to  estab- 
lish such  facts.  Chicago,  R.  I.  &  P.  R.  Co. 
V.  Nebraska  State  R.  Com.  26:  444,  124  N. 
W.  477,  85  Neb.  818. 

2340.  The  statutory  burden  placed  upon  one 
complaining  of  an  order  of  a  railroad  com- 
mission, to  establish  its  unreasonableness  or 
unlawfulness  by  clear  and  satisfactory  evi- 
dence, requires  the  quantum  of  evidence  nec- 
essary to  establish  fraud  or  prove  mistake 
in  a  written  instrument  by  one  on  whom 
the  burden  rests  to  establish  such  facts. 
Minneapolis,  St.  P.  &  S.  SLe.  M.  R.  Co.  v. 
Railroad  Com.  17:  821,  116  N.  W.  905,  136 
Wis.  146. 

2341.  The  prima  facie  presumption  that 
the  rates  for  intrastate  transportation  by 
common  carriers  of  coal  in  car  load  lota 
as  established  by  a  statute  enacted  under 
constitutional  authority  are  reasonable  ia 
not  overcome  by  proof  that  the  rates  en- 
forced in  other  states  are  higher,  or  by 
evidence  that  the  price  of  transporting  coal 
in  the  state  is  more  than  the  freight  re- 
ceipts derived  from  such  traffic  where  tlie 
carrying  of  coal  constitutes  but  an  infinitesi- 
mal portion  of  the  entire  freight  shipments 
within  the  state.  State  ex  rel.  McCue  v. 
Northern  P.  R.  Co.  25:  looi,  120  N.  W.  869, 
19  N.  D.  46. 

2342.  The  evidence  is  insufl^icent  to  sup- 
port a  finding  that  the  intrastate  rates  of 
an  interstate  carrier,  as  fixed  by  the  state, 
are  confiscatory,  where  neither  the  share 
of  the  expenses  properly  attributable  to  the 
intrastate  business,  nor  the  value  of  the 
property  employed  in  such  business,  is  sat- 
isfactorily shown.  Minnesota  Rate  Cases, 
48:  1 151,  33   Sup.   Ct.  Rep.  729,  230  U.  S. 

1352,  57  L.  ed.  1511. 

2343.  General  estimates  as  to  the  extra 
cost  of  the  ihtrastate  business  of  a  carrier 
over  its  interstate  business,  made  witliout 
the  aid  of  accurate  data  for  at  least  test 


EVIDENCE,  XII.  1. 


1247 


periods,  which  however  difficult,  to  prepare, 
was  not  beycnd  the  power  of  the  carrier 
to  furnish,  will  not  be  accepted  as  adequate 
proof  to  sustain  a  finding  that  the  carrier's 
intrastate  rates,  as  fixed  by  the  state,  are 
confiscatory.  Minnesota  Kate  Cases,  48: 
1 151,  33  Sup.  Ct.  Rep.  729,  230  U.  S.  352, 
67  L.  ed.  1511. 

2344.  The  prima  facie  reasonableness  of  a 
municipal  ordinance  fixing  the  charge  for 
a  liquor  license  outside  a  restricted  area 
in  a  city  at  $1,500  additional  to  that  im- 
posed within  such  area  is  overcome,  in  the 
absence  of  proof  justifying  the  discrimina- 
tion as  to  amount,  by  the  admission  that 
the  cost  of  policing  is  the  same,  and  that 
both  districts  contain  residence  and  busi- 
ness sections.  Rowland  v.  State  ex  rel. 
Zirklebach,  21:  192,  47  Sa.  963,  56  Fla.  422. 

(Annotated) 
X<ack  of  consent. 

2345.  Evidence  that  one  whose  house  was 
wrongfully  entered  by  a  searching  party  fol- 
lowed them  with  a  lamp,  and  stated  that 
they  were  welcome  to  any  information  that 
they  might  find,  is  not  sufficient  to  over- 
come her  positive  testimony  that  the  search 
was  without  her  consent,  especially  where 
evidence  is  excluded  that  she  was  afraid  to 
resist  after  one  of  the  parties  had  shown 
his  star.  Shall  v.  Minneapolis,  St.  P.  &  S. 
Ste.  M.  R.  Co.  50:  1151,  145  N.  W.  649,  156 
Wis.  195. 

2346.  The  jury  may  find  that  a  child  had  not 
been  forbidden  to  run  her  father's  automo- 
bile, notwithstanding  his  testimony  that  his 
direction  that  she  should  not  do  so  was  em- 
phatic and  positive,  where  he  had  permitted 
her  to  use  it,  and  his  testimony  as  to  the 
actual  instructions  given  show  merely  ad- 
vice that  she  should  not  do  so.  Birch  v. 
Abercrombie,  50:  59,  133  Pac.  1020,  74  Wash. 
486. 

2347.  In  a  quo  warranto  proceeding  to 
oust  a  foreign  corporation  authorized  by 
its  charter  to  brew  and  sell  beer  from  exer- 
cising its  corporate  franchise  in  a  state,  on 
the  ground  that  it  has  not  complied  with 
the  statutory  requirements  concerning  for- 
eign corporatiofis,  and  is  engaged  in  the  un- 
lawful sale  of  intoxicating  liquor,  evidence 
that  it  has  not  received  permission  from 
the  state  charter  board  to  do  business  there- 
in, that  it  conveyed  its  real  estate  to  its 
secretary  to  avoid  "trouble  and  complica- 
tions," wliich,  both  before  and  after  such 
transaction,  was  used  to  promote  the  unlaw- 
ful sale  of  the  corporation'^  beer,  that  it 
furnisiied  bar  fixtures  necessary  for  such  un- 
lawful use,  upon  which  it  paid  taxe^,  and 
that  it  employed  salesmen  to  solicit  and  re- 
ceive orders  within  the  state,  which  were 
filled  by  shipping  the  liquor  f.  o.  b.  to  the 
various  purcliasel's,  the  liquor,  however,  be- 
ing received  by  a  drayman  employed  and 
paid  by  the  eorporation,  who  stored  it  in  a 
warehouse  rented  by  the  corporation,  and 
in  which  it  had  an  internal  revenue  stamp 
posted,  from  which  place  the  beer  was  taken 
by  the  purchasers,  or  delivered  by  the  dray- 
man, sufficiently  supports  a  finding  of  fact 
that  the  corporation  was  unlawfully  en- 
Digest  1-52  L.R.A.(N.S.) 


gaged  in  the  liquor  business  within  the  state, 
warranting  a  judgment  of  ouster.  State 
ex  rel.  Jackson  v.  VVm.  J.  Lenip  Brew.  Co. 
29:  44,  102  Pac.  504,  79  Ivan.  705. 

I.  Criminal  cases. 

(See   aho   same   heading   in  Digest   L.R.A. 
1-10.) 

Presumption  and  burden  of  proof,  see  supra, 

94,  95,  102-109,  221-223,  255-257,  299- 

304,  689-698. 
Variance   between   pleading   and   proof,   see 

infra,  2502-2512. 
Necessity  of  proving  that  woman  had  become 

quick,  in  prosecution  for  abortion,  see 

AUORTION,   1. 
Review  on  appeal  of  question  of  sufficiency 

of  evidence,  see  Appeal,  and  Ebbor,  246, 

919-932. 
Sufficiency  of  evideaoe  to  overcome  presump- 
tion of  larceny  arising  from  possession 

of    stolen    property,    see    Appeal    and 

Erbob,  927. 
Sufficiency    to   show   keeping   of    disorderly 

house,  see  Disobdebly  Houses,  7. 
As  question  for  jury,  see  Trial,  157. 
Instructions  as  to,  generally,  see  Trial,  910, 

911,  947-953,  1079. 
Correctness  of  instruction  in  criminal  case, 

see  Tbial,  III.  e,  5. 

Circumstantial   evidence. 

Admissibility  of,  see  supra,  XI.  j. 
See  also  infra,  2394. 

2348.  Circumstantial  evidence  is  sufficient 
to  warrant  an  examining  magistrate  in 
holding  one  charged  witii  murder  witliout 
bail.  Ex  parte  Jefferies,  41:  749,  124  Pac 
924,  7  Okla.  Crim.  Rep.  544. 

2349.  All  the  elements  constituting  the 
corpus  delicti  in  a  murder  case  may  be 
proved  by  circumstantial  evidence.  State  v. 
Gillis,  5:  571,  53  S.  E.  487,  73  S.  C.  318. 

2350.  In  cases  depending  upon  circum- 
stantial evidence,  where  the  circumstances 
proved  are  not  only  consistent  with  the 
guilt  of  a  defendant,  but  are  also  incon- 
sistent with  his  innocence,  such  evidence  in 
weight  and  probative  force  may  surpass 
direct  evidence  in  its  efiect  upon  the  court 
or  jury.  Ex  parte  Jefferies,  41:  749,  124 
Pac.  924,  7  Okla.  Crim.  Rep.  544. 

2351.  In  circumstiiiitial  evidence,  it  is  not 
necessary  that  eacli  circumstance  relied 
upon  be  proved  by  the  same  weiglit  and 
force  of  evidence  and  be  as  convincing  in 
its  conclusiveness  of  guilt  as  though  it 
was  the  main  issue  in  the  case,  but  tlie  cir- 
cumstances may  be  combined  together  and 
thereby  give  strength  to  each  other.  Ex 
parte  Jetleries,  41:  749,  124  Pac.  924,  7  Okla. 
Crim.  Rep.  544.  (Annotated) 
Confessions. 

Admissibility     of     confession,     see     supra, 

VIII. 
Corroboration   of   confession. 
Corroboration    of    accomplice    or    associate, 

sfee  infra,  .2366-2371. 
2.352.   Evidence  corroborating  facts  stated 
in  a  confession,  which  is  necessary  to  up- 


1248 


EVIDENCE,  XII.  L 


hold  a  conviction  on  the  confession,  is  that 
which  not  merely  tends  to  produce  confi- 
dence in  the  truth  of  the  confession,  but 
which  refers  to  facts  which  concern  the 
corpus  delicti.  People  v.  Ranney,  19:  443, 
116   N.  W.   999,    153   Mich.   293. 

(Annotated) 

2353.  The  confession  of  one  charged  with 
obtaining  money  by  false  pretenses  by 
means  of  a  worthless  check,  thh-t  the  check 
was,  and  was  known  by  him  to  be,  worth- 
less, upon  which  a  conviction  cannot  be 
had  without  corroboration,  is  sufficiently 
corroborated  by  evidence  that  the  check 
was  forwarded  through  the  regular  channels 
for  collection,  and  was  returned  unpaid. 
People  V.  Ranney,  19:  443,  116  N.  W.  999, 
153  Mich.  293. 

Reasonable  doubt. 

2354.  To  warrant  a  recovery  under  a  stat- 
ute making  it  a  misdemeanor  to  assist  in 
importing  into  the  country  a  contract  la- 
borer, and  providing  that  one  violating  the 
statute  shall  forfeit  and  pay  a  certain  sum 
which  shall  be  sued  for  and  recovered  by 
the  United  States  or  an  informer,  as  debts 
are  recovered  in  courts  of  equity,  guilt 
must  be  established  beyond  a  reasonable 
doubt.  Regan  v.  United  States,  31:  1073, 
183  Fed.  293,  105  C.  C.  A.  505. 

2355.  One  accused  of  homicide  who  relies 
upon  intoxication  as  a  ground  for  the  reduc- 
tion of  the  crime  from  murder  in  the  first 
degree  to  the  second  degree  need  not  prove 
intoxication  beyond  a  reasonable  doubt,  nor 
that  at  the  time  he  inflicted  the  fatal  in- 
juries he  was  so  deeply  intoxicated  as  to 
be  incapable  of  forming  in  his  mind  a  de- 
liberate premeditated  design  to  do  the  kill- 
ing, but  he  is  required  to  introduce  only 
such  evidence  as  will  raise  in  the  minds  of 
the  jurors  a  reasonable  doubt  as  to  such 
fact.  State  v.  Cooley,  52:  230,  140  Pac. 
1111,  —  N.  M.  — . 

Trailing  by  bloodhounds. 

2356.  That  bloodhounds  trailed  from  the 
scene  of  a  crime  to  accused  is  not  alone  suf- 
ficient to  suport  his  conviction.  Carter  v. 
State,  50:  1112,  64  So.  215,  —  Misa.  — . 

2357.  Although  the  evidence  of  the  conduct 
of  dogs  in  tracking  a  person  accused  of 
crime  has  been  admitted  by  the  court  as 
competent,  which  is  a  question  solely  with- 
in its  jurisdiction,  yet  it  may  be  so  weak- 
ened by  other  evidence  in  the  case  that  the 
jurv  should  disregard  it.  State  v.  Adams, 
35^870,  116  Pac.  608,  85  Kan.  435. 

As  to  sanity. 

Presumption  and  burden  of  proof  as  to,  see 

supra,  221-223. 
In  civil  action,  see  supra,  2220-2225. 
See  also  Appeal  and  Ebeob,  930. 

2358.  The  jury  cannot  disregard  an  over- 
whelming mass  of  uncontradicted  evidence 
of  insanity  on  the  part  of  one  accused  of 
crime,  and  convict  him  on  the  legal  pre- 
sumption of  sanity.  State  v.  Brown,  24: 
545,  102  Pac.  641,  36  Utah,  46.  (Annotated) 

2359.  The  fact  of  the  sanity  of  one  ac- 
cused of  murder  is  not  established  by  the 
fact  that  he  is  placed  on  trial,  if,  under 
the  statute,  an  insane  man  may  be  tiied 
Digest  1-52  I,.R.A.(N.S.) 


if  he  is  comi^etent  to  understand  the  pro- 
ceeding and  to  make  his  defense.  People 
ex  rel.  Peabody  v.  Chanler,  25:  946,  89  M. 
E.   1109,   196  N.  Y.   525. 

2360.  In  case  of  a  plea  of  present  insanity 
which  will  prevent  one  accused  of  crime 
from  being  placed  on  trial,  because  incapa- 
ble of  conducting  his  defense,  the  state 
need  not  show  sanity  beyond  a  reasonable 
doubt,  but,  if  there  is  evidence  tending  to 
overthrow  the  presumption  of  sanity,  de- 
fendant may  be  placed  on  trial,  if,  from  all 
the  evidence  in  the  case,  the  jury  is  satis- 
fied that  defendant  has  sufficient  mental  ca- 
pacity to  give  sane  advice  to  his  council 
involving  the  charge  in  the  indictment. 
Jordan  v.  State,  34:  11 15,  135  S.  W.  327, 
124  Tenn.  81.  (Annotated) 

2361.  A  statute  providing  for  the  confine- 
ment in  an  asylum  of  one  charged  with 
crime  who  is  found  to  be  so  insane  that  he 
cannot  be  placed  on  trial  does  not  fix  the 
rule  as  to  quantum  of  proof  necessary  to 
show  such  insanity.  Jordan  v.  State,  34: 
1 1 15,  135  S.  W.  327,  124  Tenn.  81. 
Venue. 

2362.  In  the  prosecution  of  a  criminal  case 
it  is  not  essential  that  the  venue  of  the 
crime  be  proven  in  express  terms,  provided 
it  be  established  by  all  the  facts  and  cir- 
cumstances in  the  case,  beyond  a  reasonable 
doubt,  that  the  crime  was  committed  in  the 
county  and  state  as  alleged  in  the  indict- 
ment. State  V.  Dickerson,  13:  341,  82  N.  E. 
969,  77  Ohio  St.  34. 

2363.  Where  in  a  prosecution  for  adultery- 
it  is  shown  that  the  defendant  and  the  other 
party  resided  in  the  county  of  the  prosecu- 
tion, and  acts  from  which  adultery  might 
reasonably  be  inferred  are  shown  to  have 
taken  place  in  such  county,  the  venue  is 
sufficiently  proven.  Woody  v.  State,  49: 
479,  136  Pac.  430,  10  Okla.  Crim.  Rep.  322. 
Testimony  of  accomplice  or  co-con- 
spirator. 

2364.  The  existence  of  a  conspiracy  cannot 
be  shown  by  declarations  of  one  of  the  al- 
leged conspirators  alone.  State  v.  Gilmore, 
35:  1084,  132  N.  W.  53,  151   Iowa,  618. 

2365.  The  court  cannot  permit  a  jury  to 
convict  on  the  testimony  of  an  accomplice 
which  merely  tends  to  show  tlie  guilt  of 
accused.  Thorp  v.  State,  29:  421,  129  S.  W. 
607,  59  Tex.  Crim.  Rep.  517. 

—  Corroboration  of. 
In  bastardy  proceedings,  see  supra,  2054. 
In  action  for  divorce,  see  supra,  2207-2209. 
Setting  aside  verdict  upon   uncorroborated 

testimony    of    accomplice,    see   Appeal 

AND  Error,  924,  925. 
Instructions  as  to,  see  Trial,  965. 
See  also  infra,  2370,  2371. 

2366.  Letters  and  post  cards  identified  only 
by  prosecutrix  cannot  be  considered  as  cor- 
roborative of  her  testimony  to  prove  seduc- 
tion. Rogers  v.  State,  49:  1198,  141  S.  W. 
4P1,    101    Ark.   45.  (Annotated) 

2367.  That  an  official  voted  for  a  proposi- 
tion to  support  which  he  is  accused  of 
agreeing  to  receive  and  receiving  a  bribe 
does  not  corroborate  the  testimony  of  the 
accomplice  that  he  entered   into  the  agree- 


EVIDENCE,   XII.   1. 


1249 


ment,  so  as  to  support  a  conviction.     State 
V.  Coffey,  39:  704,  119  Pac.  901,  161  Cal.  433. 

2368.  Establishing  the  existence  of  a  fund 
for  bribery,  and  showing  a  general  im- 
munity contract  with  one  accused  of  agree- 
ing to  receive  and  receiving  a  bribe,  are  not 
sufficient  to  corroborate  testimony  of  an 
accomplice  who  secured  the  bargain  to  re- 
ceive the  bribe,  so  as  to  support  a  convic- 
tion; nor  is  the  fact  that  the  acecniplice 
sought  to  secure  an  abandonment  of  the 
prosecution  against  accused.  People  v. 
Coffey,  39:  704,  119  Pac.  901,  161  Cal.  433. 
—  Who  are  accomplices. 
Determining  on  appeal  wiietlier  witness  was 

an  accomplice,  see  Appeal  and  Error, 
925. 
Who  is  accomplice  as  question  for  jury,  see 
Trial,  266,  267. 

2369.  Liability  to  indictment  for  the  same 
offense  is  not  necessary  to  render  one  an 
accomplice  with  a  person  on  trial  for  agree- 
ing to  receive  and  receiving  a  bribe,  under 
a  statute  defining  accomplices  as  all  per- 
sons concerned  in  the  commission  of  crime, 
whether  they  directly  commit  the  act  con- 
stituting the  offense,  or  aid  and  abet  in  its 
commission.  People  v.  Coffey,  39:  704,  119 
Pac.  901,  161  Cal.  433. 

2370.  An  intermediary  representing  one 
who  desires  to  influence  the  action  of  a,  pub- 
lic board  by  bribery,  who  makes  the  bargain 
with  the  members  and  delivers  their  com- 
pensation, is  an  accomplice  with  one  agree- 
ing to  receive  and  receiving  the  bribe,  un- 
der a  statute  defining  accomplices  as  all 
persons  concerned  in  the  commission  of 
crime,  whether  they  directly  commit  the  act 
constituting  the  offense,  o,r  aid  and  abet 
in  its  commission,  so  that  his  uncorrobo- 
rated testimony  is  not  sufficient  to  convict 
the  latter.  People  v.  Coffey,  39:  704,  119 
Pac.  901,  161  Cal.  433.  (Annotated) 

2371.  A  participant  in  a  game  of  poker  or 
other  prohibited  game  played  for  money, 
checks,  credit,  or  any  representative  of  val- 
ue, is  an  accomplice  of  his  adversary  with- 
in the  meaning  of  §  6836,  Okla.  Comp.  Laws 
1909,  which  requires  the  testimony  of  an  ac- 
complice to  be  corroborated.  Hendrix  v. 
State.  43:  546,  129  Pac.  78,  8  Okla.  Crim. 
Rep.  530.  (Annotated) 

2372.  A  perjurer  is  not  an  accomplice  of 
one  accused  of  his  subornation,  within  the 
rule  that  the  evidence  of  an  accomplice 
should  be  received  with  caution.  State  v. 
Richardson,  44:  307,  154  S.  W.  735,  248  Mo. 
663.  (Annotated) 
Identity  of  accused. 

Proof  of  identity  generally,  see  supra,  2217. 
See  also  supra,  1167. 

2373.  The  inability  of  one  of  three  wit- 
nesses present  at  about  the  time  of  the 
commission  of  a  crime  to  identify  accused 
as  the  person  who  was  seen  at  the  place 
where  it  was  committed,  and  who  the  evi- 
dence tends  to  show  did  the  deed,  is  not 
significant  as  against  his  explicit  identifi- 
cation by  the  other  two,  and  his  own  volun- 
tary confession  of  guilt.  People  v.  Lingley, 
46:  342,  101   N.  E.  170.  207  N.  Y.  396. 

2374.  Where  the  only  evidence  to  identify 
Digest   1-52  i:,.R.A.(N.S.) 


an  accused  person  as  the  one  who  has  com- 
mitted a  crime  depends  upon  the  resem- 
blance between  liis  ringer  prints  and  prints 
found  in  the  place  where  the  crime  was  com- 
mitted, under  such  circumstances  that  tliey 
could  only  have  been  impressed  at  the  time 
when  the  crime  was  committed,  the  resem- 
l)lance  between  them  is  sufficient  to  support 
a  conviction.  Parker  v.  Rex,  3  B.  R.  C.  68, 
14  C.  L.  R.  Anstr.  681.  (Annotated) 

2375.  In  the  absence  of  statute,  one  ac- 
cused of  rape  may  be  sufficiently  identified 
by  the  uncorroborated  testimony  of  the 
prosecutrix,  if  the  commission  of  the  offense 
has  first  been  established.  Henderson  v. 
State,  26:  1 149,  123  N.  W.  459,  85  Neb.  444. 
Alibi. 

2376.  An  alibi  sought  to  be  established  by 
one  accused  of  crime  on  April  20,  by  show- 
ing that  he  had  been  taken  ill  about  the 
middle  of  March  and  could  not  leave  the 
house  until  after  April  20,  may  be  rejected 
where  he  is  shown  to  have  voted  at  elec- 
tions on  April  4  and  11,  and  subsequently, 
on  cross-examination,  fixed  the  time  of  his 
illness  as  beginning  in  December.  People  v. 
Connors,  39=143,  97  N.  E.  643,  253  111.  266. 
Homicide. 

Circumstantial    evidence,    see   supra,    2349, 

2355. 
See  also  supra,  1982,  2349,  2355,  2359,  2373; 

Homicide,  61;  Indictment,  etc.,  18. 

2377.  In  a  prosecution  for  homicide,  the 
possibility  that  death  resulted  from  some 
other  cause  than  that  charged  does  not 
require  an  acquittal,  if,  upon  all  the  evi- 
dence, the  jury  are  satisfied  of  the  guilt 
of  the  defendant  beyond  a  reasonable  doubt. 
State  V.  Buck,  42:  854,  127  Pac.  631,  88 
Kan.   114. 

2378.  The  evidence  necessary  to  establish 
the  corpus  delicti  in  cases  of  homicide  must 
show  that  the  life  of  a  human  being  Ijas 
been  taken,  which  question  involves  the 
subordinate  inquiry  as  to  the  identity  of 
the  person  charged  to  have  been  killed,  and 
that  the  death  was  unlawfully  caused  by 
the  party  accused  thereof,  and  by  no  other 
person.  State  v.  Barnes,  7:  181,  85  Pac.  998. 
47  Or.  592. 

2379.  The  identity  of  a  corpse  found  partly 
consumed  in  a  fire  may,  for  the  purpose  of 
proving  the  corpus  delicti  in  a  prosecution 
for  murder,  be  established  by  circumstan- 
tial evidence,  such  as  the  size  of  the  re- 
mains, and  the  finding,  at  and  near  the 
spot  where  the  body  was  found,  articles 
known  to  have  belonged  to  a  person  who  is 
alleged  to  have  been  killed;  the  weight  and 
sufficiency  of  the  evidence  for  that  purpose 
being  for  the  jurv  to  determine.  State  v. 
Barnes,  7:  i8i/85>ac.  998,  47  Or.  592. 

(Annotated) 

2380.  That  one  whose  skeleton  was  found 
in  a  burning  pile  of  logs  was  wrongfully 
killed  may  be  found  from  the  facts  that  he 
was  a  healthy  man,  and  that,  from  condi- 
tions in  the  vicinity  of  the  fire,  the  body 
had  been  dragged  to  it,  leaving  bloody  stains 
along  the  way.  State  v.  Barnes,  7:  181,  85 
Pac.  998,  47  Or.  592. 

2381.  2382.  Possession  shortly  after  hia 


1250 


EVIDENCE,  Xir.  1. 


homicidal  death  of  urtii-les  known  to  liave 
belonged  to  decedent,  under  circumstances 
which  would  justify  accused's  conviction  of 
larceny,  will  warrant  a  conviction  of  mur- 
der,— especially  when  coupled  with  contra- 
dictory statements  by  accused  as  to  the 
whereabouts  of  the  missing  person.  State 
V.  Barnes,  7:  181,  85  Pac.  9!>8,  47  Or.  592. 

2383.  Evidence  in  a  homicide  trial  that 
the  accused  had  repeatedly  threatened  to 
kill  the  deceased,  that  a  few  days  before 
the  homicide  he  purchased  a  pistol  and  at 
the  time  of  the  homicide  came  upon  the  de- 
ceased unarmed  upon  the  premises  of  the 
accused  and  rushed  upon  and  shot  him, 
then  fled  making  no  explanation  of  his  at- 
tempted flight,  is  sufficient  to  authorize  a 
conviction  of  murder  in  the  first  degree. 
Henry  v.  State,  52:  113,  136  Pac.  982,  10 
Okla.  Crim.  Rep.  369. 

2384.  Testimony  by  persons  who  prepared 
for  burial  the  body  of  a  person  who  had 
been  shot  to  death,  that  a  wound  in  the 
front  of  the  body  was  larger  than  those  in 
the  back,  having  a  ragged  appearance,  is 
not  sufficient  to  establish  the  fact  that  it 
was  not  made  by  a  bullet  fired  from  in 
front,  so  as  to  render  unnecessary  an  ex- 
amination of  the  body  for  the  purpose  of 
determining  that  fact,  where  they  were  not 
experts,  and  their  examination  was  merely 
casual,  and  was  contradicted  by  other  wit- 
nesses and  by  the  positive  testimony  of  the 
one  who  fired  the  shot,  that  it  was  against 
the  front  of  the  body.  Gray  v.  State,  22: 
513,  114  S.  W.  635,  55  Tex.  Crim.  Rep.  90. 
Burglary;  larceny;  embezzlement. 

2385.  The  testimony  of  one  witness,  if 
relevant  and  accepted  by  the  jury,  may  sus- 
tain a  conviction  of  burglary,  even  though 
the  accused  positively  denies  under  oath 
that  he  committed  the  offense.  Schultz  v. 
State,  34:  243,  130  N.  W.  105,  88  Neb.  613. 

2386.  Possession,  by  persons  who  had  been 
seen  in  the  yard  of  a  burglarized  house 
about  the  time  the  crime  was  committed,  of 
the  stolen  property  when  overtaken  by  its 
owner  on  the  road  shortly  after  the  burgla- 
ry, is  sufficient  to  justify  a  presumption  of 
guilt  in  the  absence  of  satisfactory  evidence 
as  to  how  they  came  into  possession  of  the 
property,  consistent  with  their  innocence. 
State  v.  Henderson,  17:  uoo,  110  S.  W.  1078, 
212  Mo.  208. 

2387.  The  proof  of  corpus  delicti  is  not 
sufficient  to  support  a  conviction  of  lar- 
ceny, where  it  merely  shows  that  certain 
goods,  formerly  part  of  the  stock  of  a  mer- 
chant, were  found  in  possession  of  ac- 
cused, without  anything  to  show  that  they 
were  stolen,  or  were  not  sold  in  due  course 
of  trade.  Sanders  v.  State,  28:  536,  52  So 
417,   167   Ala.   85.  (Annotated) 

2388.  The  felonious  taking  of  a  pair  of 
shoes  may  be  established  by  evidence  that 
accused  entered  and  left  the  room  where 
they  were  exhibited  for  sale,  by  an  unused 
back  way;  that  shortly  afterwards  he  at- 
tempted to  exchange  them  for  a  pair  which 
would  fit,  and,  upon  being  charged  with 
their  theft,  fled.  Collins  v.  Com.  38:  769, 
143  S.  W.  35,  146  Kv.  698. 

Digent  1-52  L.R.A.(N.S.)  ♦ 


2389.  The  rule  that  an  indictment  for 
larceny  must  be  supported  by  proof  of  the 
taking  of  a  specific  article  does  not  render 
it  necessary  to  identify  as  stolen  the  par- 
ticular portion  of  a  quantity  of  goods  car- 
ried away  exceeding  the  quantity  pur- 
chased. Reg.  V.  Tideswell,  1  B.  R.  C.  997, 
[1905]  2  K.  B.  273.  Also  Reported  in  74 
L.  J.  K.  B.  N.  S.  725,  69  J.  P.  318,  93  L. 
T.  N.  S.  Ill,  21  Times  L.  R.  531,  21  Cox, 
C.  C.  10.  (Annotated) 

2390.  The  agency  of  one  charged  with  the 
embezzlement  of  a  check  is  sufficiently  es- 
tablished by  evidence  showing  that  the 
agency  related  to  but  the  single  transaction 
of  intrusting  the  check  to  the  defendant, 
and  this  whether  the  contract  of  agency  pro- 
vided for  compensation  or  not.  State  v. 
Fraley,  42:  498,  76  S.  E.  134,  71  W.  Va.  100. 

2391.  Under  a  statute  providing  that  "if 
any  .  .  .  agent  .  .  .  embezzle  or 
fraudulently  convert  to  his  own  use  .  .  . 
property  .  .  .  which  shall  have  come 
into  his  possession,  or  been  placed  under 
his  care  or  management,  by  virtue  of  his 
office,  place,  or  employment,  he  shall  be 
guilty  of  larceny  thereof,"  the  agency  of  one 
charged  with  the  embezzlement  of  a  check 
is  sufficiently  established  by  evidence  show- 
ing that  the  agency  related  to  but  the  sin- 
gle transaction  of  intrusting  the  check  to 
the  defendant,  without  any  previous  re- 
lationship of  principal  and  agent  being 
shown.  State  v.  Fraley,  42:  498,  70  S.  E 
134,  71  W.  Va.  100. 

Arson. 

2392.  Evidence  that  a  person  who  solicited 
the  owner  of  a  building  to  burn  the  same — 
and  such  owner,  to  entrap  him,  consented 
— hired  men  to  do  the  burning,  aided  them 
in  obtaining  the  necessary  outfit  for  the 
burning  of  the  building  and  blowing  of  a 
safe  therein  to  conceal  the  origin  of  the 
fire,  and  was  to  receive  a  stated  .«um  from 
the  owner  for  the  work,  and  that  such 
agents  entered  the  building  for  the  pur- 
pose of  burning  it  and  were  prevented  by 
the  interruption  of  officers,  is  sufficient  to 
warrant  the  conviction  of  such  person  of 
the  crime  of  attempted  arson  in  the  third 
degree,  under  a  statute  defining  an  attempt 
to  commit  a  crime  as  an  act  done  with  in- 
tent to  commit  a  crime  and  tending  but 
failing  to  accomplish  it.  State  v.  Dumas, 
41:  439,  136  N.  VV-.  311,  118  Minn.  77. 

(Annotated) 
Perjury. 

2393.  To  sustain  a  conviction  of  perjury 
for  giving  evidence  which  secured  the  ac- 
quittal of  accused  upon  another  charge,  the 
falsity  of  the  oath  must  be  proved  b\  posi- 
tive and  direct  testimony,  circumstantial 
evidence  alone  not  being  sufficient.  Allen 
V.  United  States,  39:  385,  194  Fed.  664,  114 
C.  C.  A.  357. 

2394.  In  a  prosecution  for  perjury,  the 
falsity  of  the  defendant's  evidence  may  be 
established  by  circumstantial  evidence;  but 
the  facts  constituting  such  circumstantial 
evidence  must  be  directly  and  positively 
swoxn  to  by  at  least  one  credible  witness. 


KVIDENCE,   XII.   1. 


1251 


supported  by  corroborating  evidence,  and, 
taken  as  a  whole,  must  be  of  such  a  con- 
clusive character  as  to  exclude  every  other 
reasonable  hypothesis,  except  that  of  the 
defendant's  guilt.  Metcalf  v.  State,  44:  513, 
129  Pac.  675,  8  Okla.  Grim.  Rep.  605. 

(Annotated) 

2395.  In  a  prosecution  for  perjury  for  tes- 
tifying falsely,  in  a  prior  prosecution  for 
the  illegal  possession  of  intoxicating  liquors 
for  the  purpose  of  violating  a  prohibitory 
liquor  law,  that  the  accused  did  not  own 
the  restaurant  where  the  liquor  was  found, 
that  he  did  not  clerk  there,  nor  was  he  con- 
nected with  the  restaurant  as  an  employee 
or  otherwise,  the  positive  testimony  of  a 
witness  that  he  watched  the  accused  every 
night  for  a  month,  and  that  he  was  the 
person  clerking  and  waiting  on  the  custom- 
ers, and  was  the  only  one  clerking  there, 
when  corroborated  by  other  witnesses  who 
testified  to  acts  of  ownership  by  accused, 
together  with  evidence  that  the  accused  pur- 
chased supplies  for,  and  paid  the  bills  of, 
the  restaurant,  and  had  taken  out  a  United 
States  license  authorizing  him  to  conduct 
the  business  of  a  retail  liquor  dealer,  is 
sufficient  to  sustain  a  conviction.  Metcalf 
v.  State,  44:  513,  129  Pac.  675,  8  Okla.  Crim. 
Rep.   605. 

2396.  To  establish  subornation  of  perjury, 
the  fact  of  the  perjury  may  be  shown  by 
the  testimony  of  a  single  uncorroborated 
witness.  State  v.  Richardson,  44:  307,  154 
S.  VV.  735,  248  Mo.  563. 

Assault. 

2397.  The  good  character  of  one  accused  of 
assault  has  weight  in  determining  the  ques- 
tion of  his  guilt,  when  the  evidence  to  prove 
the  main  fact  or  the  connection  of  accused 
with  it  is  closely  balanced.  State  v.  Mc- 
Guire,  38:  1045,  80  Atl.  761,  84  Conn.  470. 

2398.  A  conviction  of  an  attempt  to  dis- 
charge a  revolver  at  the  prosecutor  with  in- 
tent to  do  him  grievous  bodily  harm  is  war- 
ranted by  evidence  that  the  prisoner  had  a 
loaded  revolver  in  his  pocket;  that  he  put 
his  hand  in  his  pocket  and  commenced  to 
pull  it  out;  that  the  prosecutor  seized  him 
and  a  struggle  then  took  place  between 
them;  and  that  the  prisoner  got  the  re- 
volver out  of  his  pocket  and  endeavored 
to  get  his  arm  free,  at  the  same  time  using 
language  which  clearly  indicated  that  his 
intention  was  to  use  the  revolver  if  he 
could.  Rex  v.  Linneker,  3  B.  R.  C.  237, 
[1906]  2  K.  B.  99.  Also  Reported  in  75 
L.  J.  K.  B.  N.  S.  385,  70  J.  P.  293,  54  Week. 
Rep.  494,  94  L.  T.  N.  S.  856,  22  Times  L.  R. 
495,  21  Cox,  C.  C.  196.  (Annotated) 
Disfigurement;  xrounding. 

2399.  A  conviction  of  disfigurement  is 
sustained  by  evidence  that  accused  threw 
acid  on  the  face  and  arms  of  his  vic- 
tim, which  brought  about  a  disfigurement 
and  kept  the  victim  under  the  treatment 
of  a  doctor  for  some  time,  although  the 
extent  of  the  injury  is  not  shown.  Lee  v. 
State,  40:  1132,  148  S,  W.  567,  —  Tex. 
Crim.    Rep.   — . 

2400.  Tlie  presence  of  blood  in  the  urine 
does  not  constitute  sufficient  evidence  of  a 
Digest  1-52  L.R.A.(N.S.) 


complete  parting  or  solution  of  the  cover- 
ing or  skin  of  the  kidney  to  sustain  a  con- 
viction of  statutory  wounding.  State  v. 
Gibson,  28:  965,  68  S.  E.  295,  67  W.  Va. 
548. 

Adultery. 
In  action  for  divorce,  see  supra,  2205,  2206. 

2401.  The  crime  of  adultery  may  be  proved 
by  facts  and  circumstances  such  as  lead 
the  guarded  discretion  of  a  reasonable  and 
just  man  to  a  conclusion  of  guilt,  without 
any  direct  testimony  of  the  crime  charged. 
Woody  V.  State,  49:  479,  136  Pac.  430,  10 
Okla.  Crim.  Rep.  322.  . 
Bigamy. 

2402.  The  state  does  not,  in  a  prosecution 
for  bigamy,  sustain  its  burden  of  proving 
that  the  first  wife  was  alive  when  the  sec- 
ond marriage  was  contracted  by  showing 
that  she  was  alive  four  and  a  half  yean 
before  the  second  marriage,  since  the  pre- 
sumption of  continued  life  cannot  take  the 
place  of  proof  of  the  fact.  Dunlap  v.  State, 
41:  1061,  150  S.  W.  86,  126  Tenn.  415. 
Rape. 

2403.  The  uncorroborated  testimony  of  the 
prosecutrix  that  she  had  been  ravished  is 
insufficient  to  sustain  a  conviction  of  rape, 
where  the  defendant  testifies  that  the  act 
was  with  her  consent.  Henderson  v.  State, 
26:  1 149,  123  N.  W.  459,  85  Neb.  444. 
Illegal   transactions   in  liquors.  ' 

2404.  The  mere  fact  that  "beer"  was  pur- 
chased in  a  near  beer  saloon  is  not  sufficient 
to  overcome  the  presumption  that  it  was  in- 
toxicating. State  V.  Billups,  48:  308,  127 
Pac.   686,   63    Or.    277.  (Annotated) 

2405.  To  establish  that  a  beverage  is  in- 
toxicating, it  is  sufficient  to  show  that  some 
person  who  uses  it  in  the  largest  practi- 
cable quantity  will  become  intoxicated. 
Gourley  v.  Com.  48:  315,  131  S.  W.  34,  140 
Ky.  221. 

2406.  That  one  is  found  on  the  street  early 
in  the  morning  with  a  suit  case  in  which  is 
found  57  half-pint  bottles  of  whisky,  with 
a  corkscrew  attached  to  each  one,  and  ap 
pears  frightened  and  attempts  to  get  away 
when  approached  by  an  officer,  does  not 
warrant  a  conviction  of  having  in  posses- 
sion intoxicating  liquor  with  intent  to  sell 
or  give  it  away  in  violation  of  law.  Mc- 
Comb  City  v.  Hill,  39:  534,  56  So.  346.  100 
Miss.   193.  (Annotated) 

2407.  An  illegal  sale  of  intoxicating  liquors 
may  be  found  from  evidence  that  a  rake  oflf 
of  chips  representing  money  was  taken  at 
the  end  of  every  deal  of  a  poker  game  at 
which  beer  was  furnished  upon  demand  to 
those  engaged  in  the  play,  without  addi- 
tional cost  to  them,  although  the  only  wit- 
ness for  the  prosecution  testified  that  h« 
did  not  pay  for  any  beer,  and  that  nothing 
was  paid  for  the  privilege  of  playing  in  de- 
fendant's room  unless  by  means  of  such 
rake  off,  since  from  such  facts  the  jury  may 
infer  that  the  game  was  a  mere  trick  or 
subterfuge  adopted  for  the  purpose  of  sell- 
ing beer  in  violation  of  law.  State  v.  Col- 
lins, 27:  1024,  68  S.  E.  268,  67  W.  Va.  530. 

2408.  In  a  prosecution  for  selling  intoxi- 
cating liquors  contrary  to  law,  the  evidence 


125^ 


EVIDENCE,   Xll.   1. 


of  a  sale  is  not  insufficient  merely  because 
the  witnesses  to  the  transaction  were  un- 
able to  identify,  out  of  a  dozen  men  wlio 
were  drinking,  the  particular  individual  or 
individuals  who  furnished  the  money  ob- 
served to  pass.  State  v.  Durein,  15:  908,  78 
Pac.  152,  70  Kan.  1. 

2409.  Where  the  evidence  leaves  the  ques- 
tion in  doubt  whether  one  who,  in  a  local- 
option  county,  fills  out  an  order  blank  to 
secure  liquor  for  another,  is  acting  for  the 
buyer  or  seller,  he  is  entitled  to  the  benefit 
of  the  doubt.  Golightly  v.  State,  2:  383,  90 
8.  W.  26,  49  Tex   Crim.  Rep.  44. 

2410.  The  jury  may  find  that  an  express 
Agent  receiving  an  unmarked  package  from 
A  distillery  agent  at  a  point  where  nothing 
was  shipped  except  the  products  of  the  dis- 
tillery, to  be  carried  into  local-option  ter- 
ritory under  the  verbal  statement  that  ii 
was  paint,  was  not  deceived  as  to  the  con- 
tents of  the  package,  where  similar  pack- 
ages had  been  shipped  to  his  knowledge 
under  similar  deceptive  statements.  Adams 
Exp.  Co.  v.  Com.  18:  1 182,  112  S.  W.  577, 
129  Ky.  420. 

2410a.  That  one  making  deliveries  of  intoxi- 
cating liquor  is  the  agent  of  the  nonresident 
vendor  may  be  found  from  evidence  that 
consignments  were  made  to  him,  with  di- 
rections as  to  where  delivery  should  be 
made,  and  that  he  made  deliveries  with  a 
team  belonging  to  a  local  dealer  who  sup 
plied  the  consignor  with  orders.  Merrill  v. 
State,  44:  439,  93  N.  E.  857,  175  Ind.  139. 
BCaintaining  disorderly  house. 

2411.  Evidence  of  general  reputation  alone 
will  not  support  a  conviction  for  maintain- 
ing a  disorderly  house.  King  v.  Com.  48: 
253,  159  S.  W.  593,  154  Ky.  829, 

2412.  Evidence  of  the  general  reputation 
of  a  house  as  being  a  house  of  ill  fame 
will  not  alone  support  a  verdict  against  a 
defendant  for  keeping  such  a  house,  but 
must  be  corroborated  by  some  other  fact 
or  circumstance  tending  to  prove  the  char- 
acter of  the  house.  Putman  v.  State,  46: 
593,  132  Pac.  916,  9  Okla.  Crim.  Rep.  535. 
[,  ( Annotated ) 

' ,  2413.  Evidence  of  certain  men  who  went 
to  a  house,  that  tiiey  were  told  by  tlu-  de- 
fendant in  a  prosecution  for  maintaining  a 
bawdyhouse,  who  met  them  there,  that  she 
kept  girls  there,  and  were  invited  by  her 
to  go  to  a  room  where  the  girls  were, 
whereupon  they  did  so  and  one  of  the  wit- 
nesses had  sexual  intercourse  in  a  room  in 
the  house  with  a  girl  whom  he  found  there, 
in  connection  with  evidence  of  the  reputa- 
tion of  the  house  as  being  a  house  of  ill 
fame,  is  sufficient  to  warrant  a  verdict 
finding  the  defendar.t  guilty  of  keeping  a 
bawdyhouse.  Putman  v.  State,  46:593,  132 
Pac,  916,  9  Okla.  Crim.  Rep,  535. 
False  pretenses, 
^ee  also  supra,  2353. 

.  2414.  Proof  of  either  of  the  false  repre- 
sentations set  out  in  an  indictment  for  ob 
taining  money  by  false  pretenses  is  suffi- 
cient to  sustain  a  conviction.  State  v. 
Keyes,  6:  369,  93  S.  W.  801,  196  Mo.  '136. 
y  2415.  Indorsing  and  requesting  the  cashing 
Digest   1-52  I^R.A,(N,S.) 


of  a  check  indorsed  in  blank,  by  one  not 
its  owner,  accompanied  by  the  statement 
that  he  got  it  from  the  mail,  may  be  found 
by  the  jury  to  be  a  representation  of  own- 
ership amounting  to  a  false  pretense  within 
the  lueaniiig  of  a  statute  providing  for  the 
punishment  of  one  obtaining  money  by  such 
means.  Martins  v.  State,  22:  645,  98  Pac. 
709,  17  Wyo.  319. 

2415a.  Intent  to  defraud  in  representing  a 
blind  horse  to  be  sound  as  far  as  he  knew, 
to  eff'ect  a  trade,  may  be  found  from  evi- 
dence that  the  one  making  the  representa- 
tion had  owned  the  horse  ten  days,  knew 
that  its  eyes  were  defective,  and  forbade 
a  test  of  the  eyes  in  the  presence  of  the 
wife  of  the  other  party  to  the  transaction. 
State  V.  Stone,  49:  574,  79  S.  E.  108,  95  S. 
C.  390. 
Miscellaneous   crimes. 

2416.  A  conviction  of  unlawfully  perform- 
ing a  marriage  ceremony  where  the  female 
was  under  the  age  of  fifteen  years  cannot  be 
sustained  where  the  only  evidence  as  to 
the  age  of  the  female  was  a  statement  read 
by  a  witness  from  a  written  memorandum, 
the  use  of  which  was  not  lawfully  permissi- 
ble because  the  correctness  thereof  vvlieii 
made  had  not  been  first  established.  Terri- 
tory v.  Ilarwood,  29:  504,  110  Pac.  556,  16 
N,  M,  424. 

2417.  Xo  conviction  can  be  had  upon  an 
information  charging  violation  of  a  quaran- 
tine order  based  on  belief  that  one  was  in- 
fected with  a  contagious  disease  where  the 
proof  shows  that  accused  was  not  infected 
with  the  disease,  and  that  tiie  health  officer 
had  no  ground  to  believe  that  he  was  so 
infected,  but  that  he  had  merely  been  ex- 
posed to  the  disease.  State  v.  Racskowski, 
45:580,  86  Atl.  606,  86  Conn.  677. 

2418.  That  oleomargarin  is  made  and  sold 
in  imitation  of  yellow  butter  may  be  shown 
by  resemblance  produced  solely  by  the  in- 
gredients of  the  manufactured  compound, 
if  they  were  selected  to  produce  the  color 
when  others  were  available.  State  v.  Meyer, 
14:  io6i,  114  N.  W.  501,  134  Wis.  156. 

(Annotated) 

2419.  A  prima  facie  case  of  selling  and 
shipping  oleomargarin  in  imitation  of  yel- 
low butter  is  made  out  by  evidence  from 
which  conscious  imitation  may  be  inferred, 
together  with  evidence  tending  to  show  that 
the  accused  knew  that  the  compound  shown 
to  have  been  sold,  etc.,  by  him,  was  oleo- 
margarin, and  that  it  resembled  yellow  but- 
ter. State  V.  Meyer,  14:  1061,  114  N.  W, 
501,  134  Wis.  156. 

2420.  To  sustain  a  conviction  under  a  stat- 
ute forbidding  the  owner,  keeper,  or  man- 
ager, whether  in  whole  or  in  part,  of  a 
dance  house,  to  permit  any  person  under 
twenty-one  years  of  age  to  be  or  remain 
therein,  it  is  not  necessary  that  a  part 
owner  who  personally  assisted  in  conduct- 
ing a  public  dance  hall  should  have  been 
present  at  the  dance  on  the  night  alleged 
in  a  complaint  for  permitting  a  minor  to 
remain  therein  in  violation  of  the  statute, 
where  it  appears  that  such  part  pro- 
prietor had  frequently  been  in  charge  when 


EVIDENCE,  Xill.  a. 


1253 


the  minor  named  in  the  complaint  had  been 
present.  State  v.  Rosenfield,  29:  331,  120 
N.  W.   1068,  111  Minn.  301. 

2421.  Evidence  of  short  weight  in  a  sale 
made  by  a  servant  in  his  master's  absence 
warrants  conviction  of  the  latter  under  a 
statute  providing  punishment  for  anyone 
who  himself  or  by  his  servants  is  guilty  of 
giving  false  or  insufficient  weight  or  meas- 
ure. Com.  V.  Sacks,  43:  i,  100  N.  E.  1019, 
214  Mass.  72.  (Annotated) 

2422.  Conviction  for  enticing  a  minor  away 
from  its  parents  is  not  supported  by  evi- 
dence that  a  young  woman  advised  her 
cousin  about  her  own  age  that  she  would 
not  stand  corporal  punishment  from  her 
father  for  attending  parties,  and  upon  re- 
quest of  the  cousin  accompanied  her  to  the 
home  of  an  uncle,  when  tlie  cousin  fled  from 
home  for  fear  of  further  punishment. 
Cockrell  v.  State.  48:  looi,  160  S.  W.  343, 
—  Tex.  Crim.   Rep.  — .  (Annotated) 

2423.  A  prisoner  may  be  found  to  have  at- 
tempted by  force  to  escape  from  his  im- 
prisonment, on  the  evidence  that  he  at- 
tempted to  prevent  entry  to  the  cell  by  a 
stranger  while  his  cell  mate  was  at  work 
on  a  grating  bolt  with  a  blowpipe,  and 
that  saws  found  in  his  possession  fitted  a 
cut  in  another  bolt,  the  removal  of  which 
bolts  would  aid  escape.  State  v.  Hatfield. 
38:  609,   118  Pac.  893,  66  Wash.  9. 

XIII.  AdtnissibiUttf     under    pleadings; 
variance. 

a.  Under  particular  pleadings. 

(See  alfto  same  heading  in  Digest  L.R.A. 
1-10.) 

Review  of  discretion  in  striking  amend- 
ment to  make  pleading  conform  to 
proof,  see  Appeal  and  Ebrob,  594. 

See  also  Pleading,  488. 

2424.  The  issues  of  a  ease  are  defined  by 
and  confined  to  the  pleadings.  Palmer  v. 
Humiston,  45:640,  101  N.  E.  283,  87  Ohio 
St.  401. 

2425.  Negligence  in  scattering  over  adjoin- 
ing land  material  removed  from  a  ditch,  the 
right  to  deepen  which  has  been  secured  by  a 
railroad  company,  cannot  be  proved  under 
a  complAint  seeking  damages  on  the  theory 
that  there  was  no  right  to  deposit  the  ma- 
terial on  such  adjoining  land.  Cleveland, 
C.  C.  &  St.  L.  R.  Co.  45:796,  101  N.  E.  473, 
179  Ind.  429. 

2426.  Upon  the  question  of  the  value  of 
goods  sold  and  delivered,  the  contract  price 
is  admissible  in  evidence  under  the  common 
counts,  and  is  prima  facie  evidence  of  value. 
Hollowav  V.  White-Dunham  Shoe  Co.  10: 
704,  151' Fed.  210,  80  C.  C.  A.  568. 

2427.  An  answer  in  a  judicial  proceeding 
is  not  inadmissible  in  evidence  in  support 
of  a  charge  of  libel  because  the  petition  in 
charging  the  libel  used  only  extracts  from 
it,  without  showing  that  it  was  a  pleading, 
where  the  allegations  of  the  petition  and 
the  gist  of  the  publication  do  not  so  radical- 
Digest  1-52  Ii.R.A.(N.S.) 


I  ly  vary  as  materially  to  alter  the  sense  of 
j  the  part  said  to  be  libelous.      Meriwether  v. 

C4eorge  Knapp  &  Co.  16:  953,  109  S.  W.  750, 

211  Mo.  199. 

2428.  Proof  of  affliction  with  bronchitis  is 
admissible  in  support  of  an  allegation  of 
breach  of  warranty  of  freedom  from  bodily 
infirmities  and  soundness  of  physical  con- 
dition, in  defense  of  an  action  on  an  in- 
surance policy,  and  does  not  raise  a  new  and 
distinct  issue  as  to  breach  of  a  warranty, 
against  that  disease  which  is  not  pleaded. 
French  v.  Fidelity  &  C.  Co.  17:  loii,  115  N. 
W.  869,  135  Wis.  259. 

2429.  In  an  action  on  an  insurance  policy 
which  required  arbitration  of  loss  in  ca«i 
of  dispute  as  a  condition  precedent  to  suit 
thereon,  the  insured,  under  a  petition  al- 
leging due  performance  of  the  conditions 
of  the  policy  on  his  part,  and  a  general 
denial  by  way  of  reply  to  an  answer  al- 
leging that  a  dispute  arose  as  to  the  amount 
of  loss  and  that  the  same  had  never  been 
appraised  as  provided  by  the  policy,  may 
prove  that  he  appointed  an  appraiser  ih 
good  faith,  and  that  the  two  appraisers 
were  unable  to  agree  upon  an  umpire,  for 
which  reason  no  appraisement  was  made. 
German-American  Ins.  Co.  v.  Jerrils,  28: 
104,  108  Pac.  114,  82  Kan.  320. 

2430.  A  reply  in  an  action  on  a  debt  to 
which  a  release  is  pleaded,  to  the  efl'ect 
that  the  release  was  intrusted  to  defend- 
ant, with  the  understanding  that  it  was  not 
to  have  a  legal  inception  as  a  release,  and 
was  to  be  returned  upon  demand,  is  not 
sufficient  to  admit  evidence  that  it  was  de- 
livered upon  condition  that  it  should  be 
returned  if  defendant  was  not  forced  into 
bankruptcy.  Stiebel  v.  Grosberg,  36:  1147, 
95  N.  E.  692,  202  N.  Y.  266. 

\Vithont  allegations. 
See  also  infra,  2458. 

2431.  In  a  suit  for  breach  of  promise  of 
marriage,  it  is  erroneovis  to  permit  the 
plaintiff  to  introduce  evidence  of  her  seduc- 
tion and  subsequent  delivery  of  a  bastard 
child,  unless  there  is  a  special  averment  of 
these  facts,  and  that  the  seduction  and 
sexual  intercourse  were  brought  about  and 
accomplished  by  the  defendant  under  and 
by  virtue  of  the  contract  of  marriage. 
Hendry  v.  Ellis,  33:  702,  54  So.  797,  61  Fla. 
277.  (Annotated) 

2432.  Charter  provisions  of  a  city  and  or- 
dinances of  the  city  may  be  introduced  in 
evidence  without  being  specially  pleaded, 
where  such  charter  provisions  and  ordi- 
nances are  not  the  basis  of  the  action. 
Jackson  v.  Grand  Forks,  45:75,  140  N.  W. 
718,  24  N.  D.  601. 

2433.  In  actions  not  founded  on  ordinance, 
the  ordinance  may  be  admitted  in  evidence, 
like  any  other  fact  or  circumstance  ma- 
terial to  the  subject-matter  of  the  action, 
although  it  is  not  pleaded.  Jaquith  v. 
Worden.  48:  827,  132  Pac.  33,  73  Wash.  349. 

2434.  Matter  in  estoppel  cannot  b^  given 
in  evidence  under  a  traverse.  Brackett  v. 
Modern  Brotherhood  of  America,  45:1144, 
157  S.  W.  690,  154  Ky.  340. 

2435.  Proof  of  the  fraudulent  procurement 


1254 


EVIDENCE,  XIII. 


of  a  lease,  set  up  by  the  answer  in  an  ac- 
tion of  unlawful  detainer,  may  be  given,  al- 
though it  is  not  pleaded,  where,  by  stat- 
ote.  the  only  matter  allowed  in  a  reply  is 
set-ofF  and  counterclaim.     Sass  v.  Thomas, 

iu:  a6o,  89  S.  W.  666,  6  Ind.  Terr.  60. 

y  (Annotated) 

A.S  to  damages. 

•24.36.  Evidence  that  one  injured  by  an- 
other'a  negligence  was  aflected  by  diabetes 
because  of  the  injury  is  admissible  under  a 
declaration  alleging  that  the  injuries  were 
permanent.  B.  Shoninger  Co.  v.  Mann, 
3:  1097,  76  N.  E.  354,  219  111.  242. 

2437.  A  general  allegation  of  incapacity  to 
perform  one's  daily  work  as  the  result  of 
negligent  injuries  is  not  sufficient  to  admit 
evidence  of  loss  of  sight,  where  the  particu- 
lar injuries  received  are  specified  in  the 
complaint,  but  no  mention  is  made  of  any 
injury  to  the  eyes.  Pugmire  v.  Oregon 
Short  Line  R.  Co.  13:  565,  92  Pac.  762,  33 
Utah,  27. 

2438.  The  cost  of  repairs  to  an  automobile 
made  necessary  by  the  defendant's  want  of 
care  may  be  proved,  although  the  declara- 
tion averred  that  the  automobile  was  wholly 
lost  to  the  owner,  since  a  smaller  amount 
of  damage  or  injury  than  that  laid  in  the 
declaration  may  be  proved.  McLain  v. 
West  Virginia  Automobile  Co.  48:  561,  79 
8.  E.  731,  72  W.  Va.   738. 

As  to  nesligence. 

Evidence  as  to  damages  caused  by  negli- 
,  gence,  see  supra,  2436-2438. 
•  2439.  That  the  wrongful  removal  of  sur- 
face support  in  mining  operations  is  desig- 
nated "negligent"  in  a  complaint  to  recov- 
er damages  therefor  will  not  prevent  a  re- 
covery, although  actual  ueglij^ence  in  carry- 
ing on  the  operations  is  not  shown.  Collins 
v.  Gleason  Coal  Co.  18:  736,  115  N.  W.  497, 
140  Iowa,  114. 

2440.  A  complaint  in  an  action  to  hold  a 
gas  company  liable  to  a  customer  for  injury 
to  her  clothing  by  ink  dripping  from  the 
counter,  which  alleged  that  it  negligently 
allowed  and  suffered  the  ink  to  remain  upon 
the  counter,  is  sufficient  to  admit  evidence 
that  it  had,  or  should  have  had,  notice  of 
the  presence  of  the  ink,  and  the  allegation  of 
notice  is  not  necessary.  Quinn  v.  Utah  Gas 
&  Coke  Co.  43:  328,  129  Pac.  362,  42  Utah, 
113. 

2441.  An  averment  in  a  complaint  seeking 
damages  for  injuries  by  the  use  of  a  stove- 
pipe enamel  that,  when  used  on  hot  sub- 
stances, it  became  dangerous  in  "that  it  was 
liable  to  ignite  with  a  fierce  blaze  in  the 
nature  of  an  explosion,"  in  connection  with 
one  that  the  person  for  whose  injury  dam- 
ages were  sought  was  injured  when  using 
it  upon  her  stove,  is  sufficient  to  permit  evi- 
dence that  it  was  dangerous  to  be  used  on  a 
hot  stove,  because  when  hot  the  flames  from 
the  benzin  which  it  contained  uniting  with 
the  air  formed  a  dangerous  mixture  liable, 
when  coming  in  contact  with  a  flame,  to 
cause  explosion.  Wolcho  v.  A.  J.  Rosen- 
bhith  &  Co.  21:  571,  71  Atl.  566,  81  Conn. 
158. 

2442.  The  omission  from  a  notice  to  a  city 
Digest  1-52  I^R.A.(N.S.) 


of  an  accident  caused  by  a  slippery  cover- 
ing to  an  excavation  under  the  sidewalk  of 
reference  to  a  projecting  handle  will  not  re- 
quire the  exclusion  of  evidence  at  the  trial 
that  the  injured  person,  in  falling  because 
of  such  slippery  condition,  caught  his  foot 
in  the  handle.  Smith  v.  Tacoma,  21:  1018, 
98  Pac.  91,  51  Wash.  101. 

2443.  Upon  the  question  of  the  negligence 
of  a  property  owner  in  constructing  a  foun- 
dation wall  out  of  improper  material  by  rea- 
son of  which  it  falls  to  the  injury  oS  one 
working  on  the  superstructure,  evidence  is 
not  admissible  to  the  effect  that  the  wall 
was  constructed  in  a  negligent  manner.  Ha- 
gen  V.  Schleuter,  22:  856,  86  N.  E.  112,  236 
111.  467. 

—  Of  master. 

2444.  There  is  no  error  in  the  exclusion 
of  evidence,  in  an  action  by  an  employee 
to  hold  a  railroad  company  liable  for  per- 
sonal injuries  to  him,  that  the  injury  was 
received  in  the  transaction  of  interstate 
commerce,  where  there  is  notliing  in  the 
pleadings  to  indicate  that  such  was  the 
fact.  Bradbury  v.  Chicago,  R.  1.  &  P. 
R.  Co.  40:  684,  128  N.  W.  1,  149  Iowa,  51. 

2445.  An  allegation  in  a  complaint  by  a 
servant  against  his  master  for  personal  in- 
juries, of  failure  to  provide  a  safe  place  in 
which  to  work,  which  is  a  mere  deduction 
from  specific  acts  of  negligence  alleged,  does 

'not  widen  the  scope  of  the  inquiry  so  as  to 
admit  evidence  of  negligence  not  covered  in 
the  specific  allegations.  La  Bee  v.  Sultan 
Logging  Co.  20:  405,  91  Pac.  560,  47  Wash. 
57. 

2446.  Evidence  of  the  promise  of  the  mas- 
ter to  remedy  a  defect  in  an  instrumental- 
ity is  admissible  in  evidence  for  the  serv- 
ant, under  a  declaration  averring  that  the 
master  set  the  servant  to  work  with  an  in- 
strumentality that  he  had  negligently  per- 
mitted to  become  defective  and  to  so  re- 
main, without  proper  repair  and  inspection, 
although  no  averment  of  such  promise  is 
contained  in  the  declaration,  as  the  action 
is  based  upon  the  negligence  of  the  defend- 
ant, and  not  upon  the  nonperformance  of 
the  promise.  Comer  v.  Mever  ( N.  J.  Err. 
&  App.)  29:  597,  74  Atl.  497,  78  N.  J.  L. 
464. 

As  to  crime. 

2447.  The  method  and  manner  of  the  un- 
lawful taking  and  carrying  away  need  not 
be  set  out  in  an  indictment  for  larceny 
to  permit  the  introduction  of  evidence  there- 
of. State  v.  Dobbins,  4a:  735,  132  N.  W. 
805,  152  Iowa,  632. 

2448.  Under  a  count  for  simple  larceny, 
it  is  admissible  to  prove  that  the  property 
was  obtained  by  false  pretense  with  intent 
to  defraud.  State  v.  Williams,  3a:  420,  69 
S.  E.  474,  68  W.  Va.  86. 

2449.  A  plea  of  nolo  contendere  will  not 
authorize  a  hearing  of  evidence  tending  to 
show  guilt  on  the  part  of  accused,  where  an 
offense  punishable  by  imprisonment  is 
charged,  nor  support  a  judgment  imposing 
such  imprisonment.  Tucker  v.  United 
States,  41:  70,  196  Fed.  260,  116  C.  C.  A.  62. 

2450.  One  who  has  pleaded  not  guilty  to 


EVIDENCE,  XIII.  a. 


1255 


a  charge  of  assaulting  another  with  a  dead- 
ly weapon  cannot  prevent  the  admission  of 
evidence  as  to  the  character  of  the  wounds 
inflicted  by  admitting  the  assault  and 
pleading  justification  State  v.  Young,  i8: 
688,  96  Pac.  1067,  52  Or.  227. 

2451.  An  order  prohibiting  the  sale  of  in- 
toxicants in  a  specified  county  is  not  inad- 
missible in  evidence  under  an  indictment 
charging  that  it  absolutely  prohibited 
the  sale  of  liquors  for  beverage  purposes, 
although  the  order  contained  an  exception 
of  purposes  for  which  the  statute  permits 
sales,  if  the  sale  for  beverage  purposes  is 
prohibited  by  statute.  State  v.  Billups, 
48:  308,  127  Pac.  686,  63  Or.  277. 
Defendants'  pleadings  generally. 

2452.  Evidence  is  not  admissible  to  show 
that  one  sued  on  a  promissory  note  did  not 
execute  it,  if  no  affidavit  was  filed  to  put 
that  matter  in  issue,  as  required  by  statute. 
Chestnut  v.  Chestnut,  2:  879,  52  S.  E.  348, 
104  Va.  539. 

2453.  In  a  suit  by  a  payee  of  a  bank  check 
to  recover  from  the  drawer  the  debt  evi- 
denced thereby,  it  cannot  be  proved,  under 
the  plea  that  the  money  was  advanced  for 
gambling  purposes  with  knowledge  on  the 
part  of  the  plaintiff  of  the  use  to  which 
■uch  money  was  to  be  applied,  that  the  de- 
fendant was  intoxicated  at  the  time  the 
check  was  cashed.  Camas  Prairie  State 
Bank  v.  Newman,  21:  703,  99  Pac,  833,  15 
Idaho,   719. 

2454.  A  statement  of  special  grounds  of 
defense,  which  gives  plaintiff  no  more  notice 
of  the  defense  relied  on  than  would  a  plea 
of  non  assumpsit,  is  not  sufficient  to  admit 
proof  of  such  defense  in  evidence,  under  a 
statute  requiring  a  statement  of  the  grounds 
of  defense  suflTicient  to  give  plaintiff  notice 
of  their  character.  Chestnut  v.  Chestnut, 
2:  879,  52  S.  E.  348,  104  Va.  539. 

2455.  In  a  suit  against  a  railroad  com- 
pany, a  denial  by  such  company  upon  infor- 
mation and  belief,  that  it  was  operating  a 
railroad  at  the  time  and  place  alleged,  be- 
ing a  matter  necessarily  within  defendant'-s 
knowledge  raises  no  such  issue  upon  the 
pleadings  as  will  admit  testimony  that  it 
was  not  operating  such  railroad  over  an  ob- 
jection that  such  testimony  was  not  admis- 
sible under  the  pleadings.  Chicago,  R.  I. 
&  E.  P.  R.  Co.  v.  Wertheim,  30:  771,  110 
Pac.  573,  15  N.  M.  505. 

2456.  In  an  action  by  the  hirer  of  a  taxi- 
cab  for  injuries,  it  is  error  to  reject  the 
testimony  of  the  defendant  taxicab  com- 
pany that  it  was  not  the  owner  of  the  car, 
where  the  plaintiff  was  allowed  to  intro- 
duce evidence  going  to  show  that  it  had 
held  itself  out  to  the  public  as  the  owners 
of  the  car,  and  where  it  had  denied  in  its 
answer  "all  and  singular,  the  allegations 
contained  in  plaintiff's  petition,  and  espe- 
cially that  any  act  of  any  person  represent- 
ing your  respondent  contributed  in  any 
way  to  the  accident."  Shield  v.  F.  Johnson 
k  Son  Co.  47:  1080,  61  So.  787,  132  La.  773. 

2457.  To  render  admissible  in  evidence,  in 
an  action  to  hold  one  liable  for  the  negli- 
Dieest  1-52  I^R.A.(N.S.) 


I  gence  of  his  alleged  servant,  a  contract  con- 
I  stituting  the  actual  employei  of  the  servant 
I  an  independent  contractor  for  whose  acts  de- 
fendant is  not  answerable,  it  is  not  neces- 
sary to  set  it  up  in  the  answer.  Young  v. 
Fosburg  Lumber  Co.  16:  255,  60  S.  E.  654, 
147  N.  C.  26. 

2458.  In  the  aljsence  of  any  averment  in 
the  answer,  specially  pleading  a  profes- 
sional usage  or  custom  as  to  the  care  and 
accounting  of  sponges  by  a  nurse  or  other 
attendant,  evidence  for  the  purpose  of  show- 
ing such  professional  usage  or  custom  is 
incompetent  and  inadmissible  in  an  action 
against  a  physician  for  negligent  failure 
to  remove  a  sponge  used  in  performing  an 
operation.  Palmer  v.  Humiston,  45:640, 
101  N.  E.  283,  87  Ohio  St.  401. 

Under  general  denial. 

In  criminal  case,  see  supra,  2450. 

See  also  supra,  2429,  2456. 

2459.  A  general  denial  is  sufficient  to  ren- 
der admissible  in  evidence  the  fact  that  the 
husband  was  the  active  and  aggressive 
party,  in  an  action  by  one  woman  against 
another  for  alienating  the  affections  of  the 
former's  husband  from  her.  Scott  v. 
O'Brien,  16:  742,  110  S.  W.  260,  129  Ky.  1. 

2460.  A  general  denial  in  an  action  for  so 
negligently  driving  a  team  under  control 
of  defendant  as  to  collide  with  a  vehicle 
on  the  highway  will  admit  evidence  on  the 
part  of  defendant  that  the  team  was  not 
under  his  control,  but  was  running  away. 
Kimble  v.  Stackpole,  35:  148,  110  Pac.  677, 
60  Wash.  35. 

2461.  Matters  in  mitigation  of  damages 
may  be  given  in  evidence  under  a  plea  of 
general  issue.  \''azoo  &  M.  V.  R.  Co.  v. 
Sultan,  49:  760,  63  So.  672,  —  Miss.  — . 

2462.  A  carrier  charged  with  conversion  of 
live  stock  injured  by  a  wreck  while  in  its 
possession  for  transportation  may  prove  a 
tender  under  a  general  denial.  Cincinnati, 
N.  0.  &  T.  P.  R.  Co.  v.  Rankin,  45:  529, 
150  S.  W.  400.  153  Ky.  730. 

2463.  An  ordinance  authorizing  the  con- 
struction of  a  bridge  approach  in  a  public 
street  is  admissible  under  the  general  issue 
in  an  action  to  hold  the  municipality  and 
the  railroad  company  constructing  the 
bridge  liable  for  injuries  thereby  caused  to 
the  property  of  an  abutting  owner.  Wal- 
ters V.  Baltimore  &  0.  R.  Co.  46:1128,  88 
Atl.  47,   120  Md.  644. 

2464.  In  a  suit  to  enjoin  the  use  of  a  pub- 
lic road  for  the  purpose  of  conveying  natur- 
al gas  by  means  of  pipes  laid  underground 
in  accordance  with  permission  granted  by 
the  county  court,  on  the  ground  that  the 
pipes  are  not  maintained  and  the  gas  con- 
veyed for  public  consumption,  the  defend 
ant  may  intvoduce  evidence  that  the  pipes 
are  maintained  and  the  gas  conveyed  for 
public  use,  without  any  affirmative  allega- 
tion to  that  effect,  under  his  denial  of  the 
allegation  of  the  bill.  Hardman  v.  Cabot, 
7:  506,  55  S.  E.  756,  60  W.  Va.  664. 

2465.  Where  the  complaint  alleges  that 
defendant  acted  maliciously,  and  states  a 
case  for  the  recovery  of  punitive  damages, 
defendant    may,    under    a    general    denial. 


1256 


EVIDENCE,  XIII.  b. 


prove  facts  tendihg'fif  stloW  good  faith  and 
absence  of  malice  on  his  part.  Dodge  v. 
Gilman,  47:  1098,  142  N.  W.  147,  122  Minn. 
177. 

2466.  In  an  action  for  defamation,  where 
the  complaint  claims  more  than  nominal 
damages  to  the  reputation  of  plaintiff,  de- 
fendant may,  under  a  general  denial,  prove 
the  bad  reputation  of  plaintiff  at  and  prior 
to  the  time  of  the  slander  or  libel,  though 
the  complaint  does  not  specifically  allege 
plaintiff's  good  reputation.  Dodge  v.  Gil- 
man,  47:  1098,  142  N.  W.  147,  122  Minn. 
177. 

6.  Variance. 

(See  also   same   heading   in  Digest  L.R.A. 
1-10.) 

CItII  cases  generally. 

First  objecting  to,  on  appeal,   see  Appeal 

AND  Eerob,  784-789. 
Prejudicial    error   as    to,    see   Appeal    and 

Erkob,  1271. 
In  action  for  damages  for  trespass,  see  Tres- 

PAS.S,   12. 

2467.  While,  in  equity,  the  allegata  and 
probata  must  correspond,  the  rules  for  the 
enforcement  of  this  principle  in  courts  of 
equity  are  more  liberal  than  those  applied  in 
actions  at  law,  and  an  agreement  in  matters 
of  substance  only  is  required,  it  being  suffi- 
cient that  the  cause  of  action  made  out  by 
the  bill  and  the  evidence  is  substantially 
the  same.  Floyd  v.  Duffy,  33:  883,  69  S.  E. 
993,  68  W.  Va.  339. 

2468.  That  a  note  sued  on  is  alleged  to 
have  been  delivered  to  the  holder  by  the 
first  indorser,  while  the  evidence  shows  tliat 
the  indorsement  was  in  blank,  and  the  note 
was  actually  delivered  to  plaintiff  by  one 
who  received  it  after  the  indorsement,  does 
not  constitute  a  fatal  variance.  Lilly  v. 
Hamilton  Bank,  29:  558,  178  Fed.  53,  102 
C.  C.  A.  1. 

2469.  Failure  of  one  suing  to  restrain 
another  from  breaking  his  contract  not 
to  engage  in  business  in  opposition  to  com- 
plainant, to  establish  an  incidental  fea- 
ture of  his  bill  asking  for  damages  for 
failure  to  turn  over  property  sold  in 
connection  with  the  business,  does  not  de- 
feat the  right  to  injunctive  relief.  Smith 
v.  Webb,  40:  1191,  58  So.  913,  176  Ala.  596. 

2470.  In  an  action  upon  a  benefft  certificate 
issued  by  a  fraternal  insurance  society 
where  the  answer  sets  up  as  a  defense  a  rul- 
ing of  the  clerk  of  the  local  camp  refusing 
an  assessment  on  certain  grounds,  and  that 
no  appeal,  as  provided  by  the  by-laws  of  the 
society,  was  taken;  and  upon,  the  trial  the 
evidence  shows  a  refusal  of  the  clerk  to  re- 
ceive the  assessment  on  the  ground  that  the 
beneficiary  had  been  suspended  by  the  camp 
for  another  and  different  reason, — there  is  a 
fatal  variance  between  the  answer  and  the 
proof  as  to  this  defense.  Taylor  v.  Modern 
Woodmen,  5:  283,  83  Pac.  1090,  72  Kan.  443. 
Parties. 

2471.  A  plea  of  former  action  pending  in 
favor  of  Albert  Milbra,  administrator  of 
Digest  1-52  I..B.A.(N.S.) 


Edward  Milbra, '^ecea'se^,' is  iibt  supported 
by  a  record  showing  an  action  in  favor  of 
Albert  Milburn,  administrator  of  J]dward 
Milburn,  deceased,  even  though  it  is  at- 
tempted to  show  by  parol  that  the  parties 
are  in  fact  the  same.  Milhra  v.  Sloss- 
Sheffiold  Steel  &  Iron  Co.  46:274,  6-:  So. 
176,  182  Ala.  622. 
Title;  ovirnersliip. 

In    criminal    prosecution,    see    infra,    2511, 
2512. 

2472.  Proof  of  the  legal  title  to  checks  by 
an  indorsee  for  collection  is  sufficient  to 
sustain  an  allegation  of  ownership  in  the 
complaint.  Citizens'  State  Bank  v.  E.  A. 
Tessman  &  Co.  45:606,  140  N.  W.  178,  121 
Minn.  34. 

2473.  In  trover  by  a  finder  of  property  to 
recover  damages  from  one  to  whom  he  de- 
livered it  for  safe-keeping,  because  of  his 
failure  to  return  it  on  demand,  the  fact 
that  plaintiff  pleads  his  title  as  a  finder 
of  lost  property  will  not  prevent  his  es- 
tablishing his  title  on  the  theory  that  the 
property  had  been  abandoned.  Boberson  v. 
Ellis,   35:979,   114   Pac.    100,   58  Or.   219. 

2474.  I\o  variance  exists  where  one  claim- 
ing title  to  real  estate  under  a  chain  of  title 
showing  a  fee,  to  meet  defendant's  claim 
that  the  title  of  plaintiff's  remote  grantor 
was  a  leasehold  to  which  defendant  had 
succeeded,  sets  up  possession  adverse  to  the 
lease,  and  the  presumption  of  a  grant  in  ex- 
tinguishment of  it.  Townsend  v.  Boyd,  12: 
1148,  66  Atl.  1099,  217  Pa.  386. 
Contracts. 

2475.  Proof  of  a  contract  by  ratification  of 
an  agent's  act  is  not  a  departure  from  the 
theory  of  a  complaint  seeking  recovery  on 
a  direct  contract.  Shuman  v.  Steinel.  7: 
1048,  109  N.  W.  74,  129  Wis.  422. 

2476.  The  fact  that,  to  link  one  with  an 
unlawful  transaction,  a  contract  is  pleaded 
between  him  and  two  other  persons,  while 
the  evidence  shows  a  contract  merely  be- 
tween him  and  one  of  the  others,  does  not 
constitute  a  failure  of  proof,  but  merely 
a  variance.  Mount  v.  Montgomery  Countv, 
14:  483,  80  N.  E.  629,  168  Ind.  661. 

2477.  A  variance  between  the  declaration 
and  proof  as  to  the  county  in  which  the 
contract  sued  upon  was  made  does  not  re- 
quire a  dismissal  of  the  case,  where  the 
place  of  contract  is  not  material.  Mankin 
V.  Jones,  15:  214,  60  S.  E.  248,  63  W.  Va. 
373. 

2478.  A  written  contract  which  names  as 
individuals,  at  its  commencement,  persons 
who  signed  it  under  their  partnership  name, 
is  not  inadmissible,  on  the  ground  of  va- 
riance, under  an  allegation  in  the  declara- 
tion charging  a  contract  made  by  them  as 
partners.  Burdett  v.  Hayman,  15:  1019,  60 
S.  E.  497,  63  W.  Va.  515. 

2479.  Under  a  declaration  which  counts 
upon  a  special  contract  for  carriage  be- 
tween the  plaintiff  and  defendant,  for  hire, 
in  an  action  against  a  carrier  for  negligent 
injury  to  one  who,  being  taken  with  a  con- 
tagious disease,  is  arrested  by  the  health 
authorities  and  placed  in  charge  of  a  rail- 
road company  with  which  the  county  court 


EVIDENCE,  XIII.  b. 


1257 


has  an  arrangement  for  transportation  of 
such  patients  to  the  pesthouse,  no  recovery 
can  be  had  upon  the  theory  of  an  implied 
contract  arising  out  of  the  relation  of  car- 
rier and  passenger  while  plaintiff  was  being 
transported,  nor  upon  mere  proof  of  the 
contract  between  the  county  court  and  the 
railroad  company.  Jenkins  v.  Chesapeake 
&  0.  R.  Co.  49:  1 166,  57  S.  E.  48,  61  W.  Va. 
597. 

2480.  An  action  against  a  carrier  for  loss 
of  a  carload  of  goods  because  of  its  failure 
to  remove  it  promptly  when  loaded,  as  re- 
quired by  contract,  cannot  be  sustained 
merely  by  proof  of  usage  or  custom  to  re- 
move cars  under  such  circumstances,  where 
knowledge  of  it  is  not  shown  to  have  been 
brought  home  to  the  officers  of  either  the 
shipper  or  the  carrier  who  were  clothed 
with  authority  to  make  a  contract.  Ameri- 
can Lead  Pencil  Co.  v.  Nashville,  C.  &  St. 
L.  R.  Co.  32:  323,  134  S.  W.  613,  124  Tenn. 
57. 

Torts;  negligence. 

Evidence    admissible    under    pleading,    see 

.supra,  2439-2446. 
See  also  supra,  2480. 

2481.  An  allegation  that  by  gross  negli- 
gence of  city  oliicers  duplicate  paving  tax 
certificates  were  issued  and  placed  on  the 
market  is  not  sustained  by  proof  that  they 
were  never  delivered  by  anyone  having  au- 
thority to  deliver  them,  but  that  they  were 
taken  without  right  by  one  having  no  au- 
thority to  deliver  them.  National  Bank  of 
Commerce  v.  Oklahoma  City,  39:  444,  122 
Pac.  644,  32  Okla.  432. 

2482.  An  allegation  of  infringement  of  a 
label  of  a  local  trades  council  is  not  sup- 
ported by  proof  of  infringement  of  a  label 
of  an  international  union.  People  v.  Dan- 
tuma,  39:  1190,  96  N.  E.  1087,  252  111.  561. 

24S3.  Proof  of  the  charge  substantially  as 
laid  is  necessary  to  recover  in  an  action 
for  libel  or  slander.  Miller  v.  Nuckolls,  4: 
149,  91  S.  W.  759,  77  Ark.  64. 

2484.  A  complaint  charging  a  gas  company 
with  liability  in  damages  for  injuries  due 
to  negligence  in  failing  to  repair  its  pipes 
will  authorize  a  recovery  in  case  the  negli- 
gence is  with  respect  to  pipes  which,  in  the 
operation  of  its  business,  it  uses  and  as- 
eumes  the  duty  of  repairing,  although  they 
may  belong  to  another.  Consolidated  Gas 
Co.  V.  Connor,  32:  809,  78  Atl.  725,  114  Md. 
140. 

2485.  The  statement  in  a  complaint  seek- 
ing damages  because  of  a  sherilT's  negligent 
performance  of  his  duties  in  arresting  one 
guilty  of  a  misdemeanor,  which  results  in 
the  death  of  the  latter,  that  the  sheriff  fiied 
his  pistol  at  and  toward  the  lawbreaker  so 
that  the  bullet  struck  and  killed  him,  does 
not  require  proof  of  deliberate  aim  toward 
him.  State  use  of  Johnston  v.  Cunningham, 
51:  1179,  65  So.  115,  —  Miss.  — . 

2486.  Proof  that  the  defendant's  negli- 
gence caused  the  death  of  plaintiti's  colt  is 
not  a  material  variance  from  an  allegation 
that,  by  reason  of  that  negligence,  the 
plaintiff  lost  a  horse.  Hawkins  v.  Collins, 
36:  194,  131  N.  W  187,  89  Neb.  140. 
Digest  1-52  Ii.R.A.(N.S.) 


2487.  A  recovery  in  an  action  for  negli- 
gent injuries  in  which  several  acts  or 
grounds  of  negligence  are  sufficiently  al- 
leged in  the  complaint,  will  be  justified  if 
the  injury  complained  of  is  proven  to  have 
been  the  result  of  one  or  more  of  such  acts. 
Ft.  Wayne  &  W.  V.  Traction  Co.  v.  Crosbie, 
13:  1214,  81  N.  E.  474,  169  Ind.  281. 

—  Negligence      causing     personal     in- 
juries generally. 

2488.  In  an  action  for  damages  resulting 
from  injury  by  negligence,  a  variance  of  the 
evidence  from  the  declaration  in  respect  to 
specification  of  mere  matters  of  detail  con- 
cerning the  matter,  not  the  time  or  place 
at  which,  or  the  instrumentalities  by  which, 
the  injury  was  infiicted,  is  immaterial. 
Knicely  v.  West  Virginia  M.  R.  Co.  17:  370,  • 
61  S.  E.  811,  64  W.  Va.  278. 

2489.  The  time  of  the  injury  must  be 
proved  strictly  as  alleged,  even  though  the 
allegation  is  under  a  videlicet,  in  an  action 
to  hold  a  railroad  company  liable  for  in- 
juries to  property  by  fire  set  "out  by  its 
locomotive,  where  the  statute  relieves  the 
company  from  liability  in  case  its  locomo- 
tives are  in  good  order  and  properly  man- 
aged. Hewitt  V.  Pere  Marquette  R.  Co.  41:, 
635,  137  N.  W.  66,  171  Mich.  211.  '' 

(Annotated) 

2490.  An  allegation  of  an  obstruction  of  a 
sidewalk  is  sustained  by  evidence  that  the 
obstruction  was  on  the  parking  between  the 
pavement  and  the  curbing.  Woodson  v. 
Metropolitan  Street  R.  Co.  30:  931,  123  S. 
W.  820,  224  Mo.  685. 

2491.  There  is  no  variance  between  a  dec- 
laration charging  a  city  for  negligent  injury 
by  the  act  of  its  bridge  tender,  and  evidence 
showing  that  the  injury  was  caused  by  per- 
sons who,  to  the  knowledge  of  the  city,  were 
employed  by  its  appointee  to  do  the  actual 
work  of  operating  the  bridge.  Gathman  v. 
Chicago,  19:  1178,  86  N.  E.  152,  236  III.  9. 

2492.  Failure  to  establish  the  statutory 
duty  to  sound  a  warning  when  a  railroad 
train  approached  a  highway  crossing,  as 
set  out  in  a  complaint  to  recover  for  "the 
negligent  killing  of  a  person  at  the  cross- 
ing, will  not  defeat  the  action,  if  tlie  com- 
plaint also  charges  failure  to  equip  the 
engine  with  a  proper  whistle  as  required 
by  the  common  law.  Lepard  v.  Micliigan 
C.  R.  Co.  40:  1 105,  130  N.  W.  668,  166 
Mich.   373. 

2493.  Proof  that  electric  wires  which  killed 
plaintiff's  intestate  were  owned  and  con- 
trolled by  one  company,  whereas  it  was  al- 
leged that  they  were  owned  and  controlled 
by  another  company  against  which  recovery 
was  being  sought,  did  not  constitute  a  vari 
ance  calling  for  dismissal,  but  was  merely 
failure  of  proof  of  matter  material  to  re- 
covery F'ckeisen  v.  Wheeling  Electrical  Co. 
27:  893,  67  S.  E".  788,  67  W.  Va.  335. 

2494.  An  invitee  injured  by  a  fall  into  an 
unguarded  pit  on  anotlier's  premises  is  not, 
by  alleging  in  his  petition  to  hold  the  lat- 
ter liable  for  the  injuries,  that  the  base- 
ment was  without  light  of  any  kind,  bound 
to  prove  that  fact,  but  merely  that  the  light 
was  inadequate;   and  therefore  mere  failure 


1258 


KVIDENCE,  Xril.  b. 


to  prove  the  entire  absence  of  light  does  not 
require  a  finding  in  defendant's  favor.  Gla- 
ser  V.  Rothschild,  22:  1045,  120  S.  W.  1,  221 
/Mo.  180. 

—  Negligence  of  master. 

2495.  A  master  cannot  be  held  liable  to 
punitive  damages  for  negligently  injuring  a 
servant,  in  the  absence  of  wantonness,  where 
it  is  made  the  basis  for  such  damages  in 
the  complaint.  Rippy  v.  Southern  R.  Co. 
21:  601,  Gl  S.  E.  1010,  80  S.  C.  539. 

2496.  Recovery  cannot  be  had  against  a 
master  for  injury  to  an  employee  under  a 
paragraph  in  a  complaint  charging  negli- 
gence in  knowingly  permitting  an  empty 
truck  to  remain  in  a  position  imperiling  em- 
ployees, where  the  evidence  does  not  show 

when  and  by  whom  the  truck  was  placed 
in  that  position.  Haskell  &  B.  Car  Co.  v. 
Przezdziankowski,  14:  972,  83  N.  E.  626, 
170  Ind.  1. 

2497.  There  is  no  material  variance  be- 
tween the  pleading  and  proof  in  an  action 
for  the  death  of  an  employee  in  a  mine, 
caused  by  the  negligence  of  one  emploved 
to  assist  in  lowering  cars  from  the  mine  to 
a  tipple  at  a  railroad  below,  where  the 
declaration  charged  that  it  was  defendant's 
duty  to  have  a  careful  and  competent  per- 
son to  operate  the  knuckle  where  the  cars 
were  let  down  from  the  mine  entry  to  the 
tipple,  but  that,  not  regarding  that  duty, 
it  employed  an  irresponsible  boy  of  the 
age  of  fifteen  years  to  operate  the  knuckle 
and  levers  necessary  to  operate  the  knuckle 
in  letting  down  the  cars,  while  the  evidence 
showed  that  the  word  "knuckle"  was  some- 
times used  as  an  inclusive  term,  to  era- 
brace  the  drum  house  and  all  the  appur- 
tenances at  the  head  of  the  incline,  but  that 
the  boy  was  employed  simply  to  operate 
the  chock  blocks  immediately  at  the  knuckle, 
and  also  that  he  was  fifteen  years  and  four 
months  old.  Wilkinson  v.  Kanawha  &  H. 
Coal  &  C.  Co.  20:  331,  61  S.  E.  875,  64  W. 
Va.  93. 

—  Negligence  toxcards  passengers  and 

persons  accompanying  them. 

2498.  There  is  no  material  variance  be- 
tween allegations  that  plaintiff,  who  was 
injured  in  defendant's  automobile,  -was  a 
passenger  and  that  the  injury  was  caused 
by  the  car  turning  over,  and  proof  that  he 
was  a  licensee  and  that  the  injury  was 
caused  by  the  machine's  colliding  with  an 
obstruction,  tilting  on  one  side,  and  stop- 
ping suddenly.  Beard  v.  Klusmeier,  50: 
iioo,  164  S.  W.  319,  158  Ky.  153. 

2499.  The  disclosure,  by  the  evidence,  of  a 
written  contract  for  transportation,  in  an 
action  for  negligent  injuries  to  a  passenger 
sounding  in  tort,  whicJfi  merely  charges  the 
acceptance  of  plaintiff  as  a  passenger,  does 
not  create  a  fatal  variance:  Lake  Shore  & 
M.  S.  R.  Co.  V.  Teeters,  5:  425,  77  N.  E.  599, 
166  Ind.  335. 

2500.  That  a  passenger  injured  in  a  col- 
lision of  street  cars  alleges,  in  his  complaint 
to  hold  the  company  liable  for  his  injuries, 
the  particular  cause  of  the  accident,  does 
not  deprive  him  of  the  benefit  of  the  pre- 
sumption of  negligence  flowing  from  the 
Digest  1-52  I<.R.A.(N.S.) 


accident,  and  require  him  to  prove  the  cause 
alleged,  since  the  particular  cause  of  the  ac- 
cident is  not  of  the  substance  of  the  issue. 
Walters  v.  Seattle,  R.  &  S.  R.  Co.  24:  788, 
93   Pac.   419,    48   Wash.   233.      (Annotated) 

2501.  There  is  a  fatal  variance  between  a 
complaint  charging  injury  to  one  who  ac- 
companied a  passenger  onto  a  train  to  as- 
sist her,  and  evidence  that  the  purpose  of 
the  injured  person  in  entering  the  train  was 
to  visit,  not  to  render  assistance.  Whaley 
V.  Louisville  &  N.  R.  Co.  52:  179,  65  So.  140, 
186  Ala.  72. 

Criminal  cases. 

Evidence  admissible  under  allegations,   see 

supra,  2447-2451. 
Presumption  on  appeal  as  to  variance,  see 

Appeal  and  Error,  478. 

2502.  The  variance  between  purported  lan- 
guage of  a  letter  alleged  to  have  been  un- 
lawfully deposited  in  the  mail,  set  out  in 
the  indictment  as  "and  have  to  say  here  one 
week,"  and  the  letter  itself  as  offered  in 
evidence,  "&  would  have  to  stay  here  one 
week,"  is  immaterial.  Kemp  v.  United 
States,  51:  825,  41  App.  D.  C.  539. 

2503.  A  variance  between  the  allegation,  in 
an  indictment  under  the  white  slave  act  of 
June  25,  1910,  for  obtaining,  aiding,  or  in- 
ducing the  interstate  transportation  of  wom- 
en for  immoral  purposes,  that  such  women 
were  transported  over  the  Texas  &  New 
Orleans  Railroad,  and  the  proof  which  failed 
to  show  that  such  railroad  extended  from 
the  beginning  to  the  end  of  the  transporta- 
tion, but  did  show  that  the  tickets  were 
purchased  over  the  Southern  Pacific  Rail- 
road, if  error  at  all,  where  the  indictment 
alleged  that  the  former  railroad  was  a  part 
of  the  Southern  Pacific  system,  and  there 
was  through  transportation,  is  not  fatal, 
being  not  much  more  than  verbal,  and  not 
even  embarrassing  the  defense.  Hoke  v. 
United  States,  43:  906,  33  Sup.  Ct.  Rep,  281, 
227  U.  S.  308,  57  L.  ed.  523. 

2504.  An  indictment  for  killing  by  striking, 
wounding,  and  throwing  the  victim  into  a 
well  is  not  supported  by  evidence  of  fright- 
ening him  into  insanity  by  an  attempted 
burglary,  so  that  he  jumped  into  the  well. 
Gipe  V.  State,  i:  419,  75  N.  E.  881,  165  Ind. 
433. 

2504a.  Where  an  accused  is  charged  with 
having  assaulted  and  killed  one  "P.  S.,  alias 
F.  M.,"  evidence  that  the  defendant  as- 
saulted and  killed  a  person  commonly 
known  aa  F.  M.  will  not  sustain  a  verdict 
of  guilty,  unless  it  is  shown  that  the  F.  M. 
so  killed  and  P.  S.  were  one  and  the  same 
person;  since  the  name  of  the  person  in- 
jured must  be  proved  as  laid,  where  such 
proof  is  not  excused  by  statute.  Goodlove 
V.  State,  30:  134,  92  N.  E.  491,  82  Ohio  St. 
365. 

2505.  There  is  no  fatal  variance  between 
an  indictment  for  forgery  which  omits,  de- 
fendant's indorsement  from  the  instrument 
and  the  instrument  containing  such  indorse- 
ment, in  the  absence  of  a  finding  that  the 
variance  is  material,  where  the  statute  pro- 
vides that,  in  case  of  variance  in  description, 
it  shall  not  be  deemed  ground  for  acquittal. 


EXAMINATION— EXCHANGES. 


1259 


unless  the  trial  court  shall  find  it  to  be  ma- 
terial and  prejudicial.  State  v.  Carragin, 
i6:  561,  109  S.  W.  553,  210  Mo.  351. 

2506.  No  variance  is  created  between  an 
indictment  charging  robbery  of  $10  and  the 
proof,  by  the  fact  that  the  evidence  shows 
that  accused  compelled  prosecutor  to  throw 
the  money  on  the  floor,  whence  it  was  taken 
by  a  stranger  at  the  command  of  accused. 
Fanin  v.  State,  10:  744,  100  S.  W.  916,  61 
Tex.  Crim.  Rep.  41. 

—  Time. 

2507.  Time  is  not  an  essential  element  of 
the  offense  of  keeping  a  disorderly  house, 
and  it  is  not  necessary  to  prove  the  com- 
mission of  the  offense  within  the  time  laid 
in  the  indictment.  State  v.  Diifour,  49: 
792,  143  N.  W.  1126,  123  Minn.  451. 

( Annotated ) 

—  Amount. 

2508.  There  is  no  fatal  variance  in  a  prose- 
cution for  selling  liquor  to  Indians  in  the 
fact  that  the  information  charges  sale  of  a 
quart,  while  the  evidence  shows  sale  of  a 
pint.  State  v.  Rackich,  37:  760,  119  Pac. 
843,  66  Wash.  390. 

2509.  An  accusation  which  charged  that 
the  accused  procured  from  the  hirer, 
"money,  shoes,  and  clothes  of  the  value  of 
$13,  with  intent  not  to  perform  such  serv- 
ice, to  the  loss  and  damage  of  the  hirer  in 
the  sum  of  $4,"  was  not  sufficiently  sus- 
tained to  authorize  a  conviction  by  evidence 
that  the  hirer  advanced  to  the  accused  "in 
money,  clothes,  etc.,  $13.50,"  and  that  the 
accused  owed  the  hirer  $4  on  account  of  ad- 
vancements. Banks  t.  State,  2:  1007,  52  S. 
E.  74,  124  Ga.  15. 

2510.  No  variance  is  created  between  an 
indictment  charging  robbery  of  $10  and  the 
proof,  by  the  fact  that  accused  is  shown  to 
have  secured  a  $10  bill  and  returned  $2. 
Fanin  v.  State,  10:  744,  100  S.  W.  91«,  51 
Tex.  Crim.  Rep.  41. 

—  Oixrnership. 

2511.  Failure  to  prove  the  ownership  as 
charged  of  the  property  to  secure  which  a 
burglary  is  alleged  to  have  been  committed 
is  not  a  fatal  variance,  since  the  allegation 
as  to  ownership  is  unnecessary.  State  v. 
Riddle,  43:  150,  150  S.  W.  1044,  245  Mo.  451. 

2512.  Proof  of  ownership  of  money  by  a 
principal  will  not  support  a  conviction  for 
obtaining  money  from  the  owner  by  means 
of  false  pretenses,  under  an  information 
which  lays  the  ownership  of  the  money  in 
the  one  who  had  the  custody  of  it,  but  who 
was  in  fact  tlie  agent  of  the  owner.  Martins 
▼.  State,  22:  645,  98  Pac.  709,  17  Wyo.  319. 

(Annotated) 


EXAMINATION. 


Of  bankrupt,  see  Bankruptcy,  10,  11. 

Of  person  of  witness,  see  Discovery  and  Ik- 

SPECTiON,  II.;  Evidence,  879-881. 
Of  jurors,  see  Jury,  II.  c. 
Of  witnesses,  see  Wit>' esses,  IL 
Digest  1-52  L.R.A.(N.S.) 


ui  t     -<■  EXCAVATIONS. 

Duty  of  carrier  to  light  or  guard  excavation 

on  right  of  way,  see  Carbiebs,  599. 
Construction  of  contract  for,  see  Contbacts, 

402-404. 
In   street  or  highway,  see  Highways,  46, 

228,  285,   332,   371. 
Landlord's  duty  to  protect  building  against 

danger    resulting   from,    see   Landlord 

AND  Tenant,  105,  160-162. 
Liability   of   landlord   for   injury   resulting 

from,  see  Landlord  and  Tenant,  133. 
Injuring  support  to  land,  see  Lateral  Suf- 

PORT. 

Assumption  of  risk  by  servant  working  in, 
see  Master  and   Servant,   513-516. 

Negligence  as  to,  generally,  see  Negligeinck, 
97,  109-111. 

For  purposes  of  construction,  as  to  quarry, 
see  Quarry. 


EXCEPTIONS. 


Bill  of,  see  Appeal  and  Error,  IV.  o. 
Generally,    see    Appeal    and    Error,    V.; 

Trial,  I.  f. 
Right  of  appellate  court  to  consider  excep- 
tions not  discussed  in  brief,  see  Appkal 

AND  Error,  291. 
To  executor's  account,  see  Executors  anb 

Administrators,  128-133. 
By  petitioner  in  mandamus  proceedings,  .see 

Mandamus,  119. 
Before  referee,  see  Reference,  20. 
Burden  of  proving,  see  Evidence,  II.  d. 
Negation  of,  in  indictment,  see  Indictment, 

ETC.,  II.  c. 
Pleading  of,  see  Pleading,  II.  e. 
In  deeds,  see  Deeds,  II.  d,  2. 
Creation  of  easements  by,  see  Easements,  5, 

6,  36,  40,  41,  43,  66,  58,  60,  86. 


EXCESSIVE  FINES. 

See  Criminal  Law,  249. 


EXCESSIVE  VERDICT. 

As  ground  for  new  trial,  see  N£w  Tbiai^  31- 
35. 


♦  •» 


EXCHANGE  OF  PROPERTY. 

Fraud  in  misrepresenting  value  of  property 
exchanged,  see  Fraud  and  Deceit,  13. 

Of  liquor  as  a  loan,  see  Intoxicating  Li- 
quors, 95. 


EXCHANGES. 


President's  right  to  appeal,  see  Appeal  and 
Error,  83. 


1260 


EXCISE— EXCUSABLE    NEGLIGENCE. 


A»  to  rights,  duties,  and  liabilities  of  brok- 
ers, see  Brokers,  I. 

Validity  of  contract  not  to  supply  quota- 
tions to  bucket  shop,  see  Contbacts, 
454. 

Sales  on  stock  exchange  as  measure  of  value 
,  of  cotton  destroyed  by  fire,  see  Insub- 
ANCE,  783. 

Compelling   telegraph   company   to   furnish 

(8.     quotations  of,  see  Telexsraphs,  2. 

1.  One  who  purchases  in  the  name  of 
his  partner  a  seat  in  a  stock  exchange  has, 
notwithstanding  knowledge  on  the  part  of 
the  officers  of  the  exchange  of  the  facts, 
no  equity  to  prevent  the  enforcement  of  a 
rule  of  the  exchange  that  a  seat  may  be  sold 
for  the  debts  of  the  member  holding  it  in 
favor  of  other  members.  Zell  v.  Baltimore 
Stock  Exchange,  4:  435,  62  Atl.  808,  102 
Md.  489.  (Annotated) 

2.  A  board  of  trade,  which  has  a  rij^ht 
of  property  in  market  quotations  collected 
in  its  exchange,  does  not  surrender  or  dedi- 
cate them  to  the  public  by  permitting  sub- 
scribers, to  whom  they  are  communicated 
upon  condition  that  they  shall  not  be  made 
public,  to  post  them  upon  blackboards  in 
their  places  of  business,  where  the  posting  is 
done  for  the  advantage  of  the  subscribers, 
and  not  of  the  public,  and  does  not  make 
knowledge  of  the  quotations,  general,  or 
make  them  accessible  to  the  public  as  of 
right,  or  render  them  of  no  further  value. 
McDearmott  Commission  Co.  v.  Chicago  Bd. 
of  Trade,  7:  889,  146  Fed.  961,  77  C.  C.  A. 
479.  (Annotated) 

3.  It  need  not  be  shown  that  one  who 
orders  grain  through  a  broker  has  knowl- 
edge of  the  rules  of  the  exchange  in  which 
they  are  executed,  to  make  such  rules  bind- 
ing upon  him.  Hallet  v.  Aggergaard,  14: 
1251,  114  N.  W.  696,  21  S.  D.  654. 
Membership;  by-laxirs. 

Right  of  bankruptcy  trustee  of  member  of 
stock  exchange  to  funds  arising  from 
transactions  upon  floor  of,  see  Bank- 
ruptcy, 136. 
See  also  infra,  5. 
Transactions  on  margin. 
Validity  of  sale  on  margins,  see  Contracts, 

531-534. 
Injunction    to    restrain    payment    by    bank 
of  margins  on  option  futures,  see  In- 
junction, 55. 
'    4.  A  rule  of  a  board  of  trade,  that  if 
the   parties   to   a  transaction  cannot,  after 
it   has   closed,   agree   to   whom   the   margin 
shall    be    paid    by   the   depositary,    a    com- 
mittee shall  be  appointed,  who  shall  deter- 
mine the  question,  is  valid  and  binding  upon 
the  members.     Pacaud  v.  Waite,  2:  672,  75 
N.  E.  779,  218  ni.  138.  (Annotated) 

5.  The  power  of  a  board  of  trade  to 
pass  a  by-law  providing  for  the  compulsory 
arbitration  of  the  right  to  the  deposited 
margins  upon  the  close  of  a  transaction, 
under  a  provision  of  the  charter  permitting 
it  to  establish  such  by-laws  for  the  manage- 
ment of  the  business  and  its  mode  of  trans- 
action as  it  may  think  proper,  is  not 
aflFected  by  another  provision  of  the  charter, 
Digest   1-52  KR.A.(N.S.) 


authorizing  the  appointment  of  committees 
of  reference  for  the  settlement  of  such  mat- 
ters of  difference  as  may  be  voluntarily 
submitted  to  them.  Pacaud  v.  Waite,  a: 
67a,  75  N.  E.  779,  218  111.  138. 


EXCISE. 

Tax  for,  see  Intoxicating  Liquors,  II. 
Discretion  of  board  as  to  number  of  licenses 

to  be  granted  in  city,  see  Intoxicating 

LlQLOKS,  69. 
Excise  tax  on  busincNss,  see  License,  II. 
Transfer  tax  as  excise  tax,  see  Taxes,  282, 

297. 


EXCLUSIVE  PRIVILEGES. 

Grant  of,  by  carrier  to  hacks,  etc.,  see  Car- 
riers,   1007-1013;    Injunction,    111. 

Constitutionality  of,  see  Constitutional 
Law,  II.  a. 

In  general,  see  Monopoly  and  Combina- 
tions. 

To  operate  ferry,  see  Ferries,  2,  3. 

To  water  company,  see  Waters,  III.  a. 

♦  >» 


EXCLUSIVE  REMEDY. 

See  Election  of  Remedies,  7-12. 
♦-•-♦ 


EXCOMMUNICATION. 

Review    by    courts    of    judgment    of,    see 

C\>urts,    193. 
Of  priest,  see  Religious  Societ^ies,  12. 
Of  church  member,  see  Religious  Societies, 

VLb. 


EXCURSIONS. 


Refusal  to  accept  person  as  passenger  on 
excursion  boat,  see  Carriers,  38. 

Owner  of  excursion  boat,  as  common  car- 
rier, see  Carrie:rs,  11. 

Excursion  ticket,  see  Carriers,  II.  m,  2. 


EXCUSABLE  HOMICIDE. 

See  Homicide,  III. 


EXCUSABLE  NEGLIGENCE. 

As  ground  for  vacation  of  judgment,  see 
Judgment,  348,  350,  356,  388. 

As  ground  for  opening  judgment,  see  JuDO- 
MKNT,   51,   350. 


EX  DELICTO— EXECUTION,  I. 


1261 


EX   DEI.ICTO. 

Right  of  corporation  to  bring  action  ex 
delicto,  see  Corporations,  49. 

Effect  of  subsequent  promise  to  remove  bar 
of  limitations  against  actions  ex  de- 
licto, see  Limitation  of  Ations,  344. 

Allegation  of  action  ex  delicto,  see  Plead- 
ing, II.  1. 


EXECUTED  TRUST. 

See  Trusts,  28,  30. 

♦  >♦ 

EXECUTION. 

/.  In  general,  1—10. 
II.  Supplementary     proceedings,      Il- 
ls. 

Of  writing  required  by  statute  of  frauds, 
see  Contracts,  I.  e,  5,  b. 

Of  contract  by  city,  see  Municipai,  Corpo- 
rations, 241-243. 

Of  will,  see  Wills,  I.  b. 

Of  insured  person  for  crime,  see  Insurance, 
702-704. 

Review  of  refusal  of  trial  by  jury  of  amount 
for  which  execution  shall  issue,  see  Ap- 
peal AND   Error,   644. 

As  prerequisite  to  creditor's  bill,  see  Cred- 
itor's Bill,  II. 

Obtaining  judgment  in  execution  to  enforce 
lien  as  bar  to  maintenance  of  replevin 
suit,  see  Election  of  Remedies,  22. 

Exemption  from,  see  Exemptions. 

Question  whether  clerk  or  judge  should  is- 
sue, see  Judges,  2. 

Enforcement  of  judgment  against  bankrupt 
bv  special  execution,  see  Judgment, 
319. 

Sale  under,  see  Judicial  Sale. 

Levy  on,  see  Levy  and  Seizure. 

Effect  of  expiration  of  limitation  period  for 
enforcement  of  judgment  on  right  to 
issue  execution  thereon,  see  Limitation 
OF  Actions,  84. 

Extension  of  lien  of  execution  by  grant  of 
injunction  restraining  sale,  see  Limi- 
tation OF  Actions,  276. 

Mandamus  to  compel  issuance  of,  see  Man- 
damus, 18. 

Making  sheriff  charged  with  execution  of 
writ  party  to  proceeding  to  annul  an 
execution,  see  Parties,  194. 

Prohibition  against,  see  Prohibition,  6. 

Appointment  of  receiver  in  aid  of,  see  Re- 
ceivers, 25-28,  42;  Reference,  7. 

Amercement  of  sheriff  for  failure  to  levy 
and  return,  see  Parites,  98;  Sheriff, 
4,  5. 

Amount  of  execution  which  surety  paying 
judgment  against  principal  may  issue, 
see  Subrogation,  28. 

Digest  1-52  KR.A.(N.S.) 


1.  In  general, 

(See  also  same  heading  in  Digest  L.R.A 
1-10.) 

1.  An  execution  issued  on  a  void  judg- 
ment will  be  quashed  on  motion.  A.  B. 
Parquhar  Co.  v.  Dehaven,  40:  956,  75  S.  E. 
05,  70  W.  Va.  738. 

2.  The  clerk  cannot  issue  an  execution 
on  a  judgment  which  has  been  set  aside  by 
the  court.  State  ex  rel.  Spratlin  v.  Thomp- 
son, 20:  I,  102  S.  W.  349,  118  Tenn.  571. 

3.  An  obligor  on  a  bond,  against  whom 
a  co-obligor,  after  paying  the  judgment  and 
procuring  an  assignment  to  himself  as  au- 
thorized by  statute,  issues  execution,  cannot, 
after  allowing  the  execution  to  issue  for  the 
whole  amount  as  though  he  were  the  prin- 
cipal debtor,  assert  that  the  execution  was 
void,  but  he  must  attack  it  directly,  or  make 
equitable  defenses  to  proceedings  based  on 
a  return  of  no  property  found.  Sanders  v. 
Herndon,  5:  1072,  93  S.  W.  14,  122  Ky.  760. 

4.  A  statutory  provision  that  an  execu- 
tion on  a  joint  judgment  must  be  joint  has 
no  application  to  an  execution  under  a  stat- 
ute permitting  a  surety  who  has  paid  the 
judgment  to  take  an  assignment  and  have 
execution  issued  in  his  favor  against  the 
principal  obligor.  Sanders  v.  Herndon,  5: 
1072,  93  S.  W.  14,  122  Ky.  760. 

5.  Execution  cannot  be  issued  in  favor 
of  an  attorney  to  whom  a  cause  of  action 
for  personal  tort  was  assigned  before  judg- 
ment, to  secure  his  fees  for  services,  wliere, 
before  the  judgment  was  entered,  the  client 
settled  the  suit  and  released  defendant  from 
further  liability.  Tyler  v.  Superior  Court, 
23:  1045,  73  Atl.  467,  30  R.  I.  107. 
Against  ^irhat. 

Issuance  of,  on  exempt  property  subject  to 
payment  of  particular  debt,  see  Elec- 
tion of  Remedies,  3. 

What  property  exempt,  see  Exemptions. 

Homestead  exemption,  see  Homestead. 

What  property  subject  to,  see  Levy  and 
Seizure,  I. 

Return. 

Against  corporation  as  condition  precedent 
to  enforcing  stockholder's  liability,  see 
Corporations,  369. 

liien  of. 

6.  The  lien  of  an  execution  extends  only 
to  property  located  in  the  county  to  whicli 
the  execution  is  directed.  Smith  v.  Johns, 
45:  266,  150  S.  W.  97,  126  Tenn.  435. 

( Annotated ) 

7.  An  execution  issued  upon  a  judg- 
ment rendered  in  a  justice  of  the  peace 
court,  although  not  a  court  of  record,  has 
the  same  effect  as  a  lien  as  one  issued  from 
a  court  of  record,  notwithstanding  a  stat 
ute  expressly  controlling  justices'  courts; 
and  a  contrary  intent  is  not  shown  by  a 
statute  providing  for  the  filing  in  a  speci- 
fied court  of  record  of  a  transcript  of  the 
justice's  docket,  and  the  issuing  of  execu- 
tion thereon  with  like  effect  as  of  a  judg- 
ment of  that  court,  since  such  statute  mere- 
ly provides  a  discretionary  method  of  issu- 


1202 


EXECUTION,  II.— EXECUTORS  AND  ADMINISTRATORS. 


ing  execution.     Park  v.  McCauley,  28:  1036, 
67  S.  E.  174,  67  W.  Va.  104. 

8.  A  writ  of  fieri  facias  in  the  hands 
of  an  officer  for  execution  is,  under  a  stat- 
ute providing  that  an  execution  shall  be  a 
lien  '"upon  all  the  personal  estate  of  which 
the  judgment  debtor  is  possessed,  or  to 
which  he  is  entitled,"  a  lien  upon  a  leg- 
acy given  to  the  debtor,  although  it  is  in 
the  hands  of  the  executor.  Park  v.  Mc- 
Cauley,  28:  1036,  67  S.  E.  174,  67  W.  Va. 
104. 

9.  W.  Va.  Code  1906,  chap.  141,  §  2, 
providing  that  notice  of  the  issuance  and 
placing  in  the  hands  of  an  officer  of  an  exe- 
cution is  sufficient  to  fix  liability  on  one 
owing  money  to  a  judgment  debtor,  is  not 
modified  by  §  II  thereof,  providing  that, 
if  such  third  person  is  liable  at  the  time 
of  the  service  on  him  of  a  summons  to 
answer  a  suggestion  to  enforce  the  execu- 
tion lien,  he  shall  be  required  to  pay,  so 
as  to  relieve  from  liability  one  who,  with 
notice  of  the  issuance  and  placing  in  the 
hands  of  the  officer  of  an  execution  against 
a  judgment  debtor,  paid  the  judgment  debt- 
or before  issuance  of  the  suggestion  and 
summons  to  answer  it,  since  the  latter  sec- 
tion does  not  create  a  lien,  but  merely  pro- 
rides  a  method  of  enforcing  the  antecedent 
lien  of  the  execution.  Park  v.  McCauley, 
«8:  1036,  67  S.  E.  174,  67  W.  Va.  104. 
Satisfaction  and  discliarge. 

10.  That  a  plaintiff  would  be  entitled  to 
hold  the  proceeds  of  his  judgment  free  from 
execution  under  the  exemption  laws  does  not 
prevent  the  application  to  it  of  a  statute 
directing  the  sheriff,  in  case  executions  in 
favor  of  both  parties  come  to  his  hands,  to 
set  off  one  against  the  other,  with  certain 
specified  exceptions,  among  which  is  not 
found  that  claimed  by  plaintiff.  Caldwell 
T.  Ryan,  16:  494,  108  S.  W.  633,  210  Mo.  17. 

I  (Annotated) 

Stay. 

Injunction  to  restrain  enforcement  of  judg- 
ment where  law  court  refuses  stay 
pending  appeal,  see  Injunction,  277. 

Effect  of  agreement  for  stay  of,  see  Pbin- 
ciPAx  AND  Surety,  61. 

//.  Supplementary    proceedings. 

(See  also  same  heading  in  Digest  L.B.A. 
1-10.) 

Appeal  to  judge  of  trial  court  from  action 
of  clerk  in  taking  jurisdiction  of,  see 

"       Appeal  and  Ebrob,  24. 

Effect  of  pending  appeal  by  one  party,  to 
bar  further  proceedings,  see  Appeal 
AND  Ebrob,  9!). 

Requiring  defendant  to  give  security  for 
appearance,  see  Bail  and  Recogni- 
zance, 6. 

Order  in,  see  Motions  and  Orders,  7. 

11.  Property  cannot  be  applied  in  satis- 
faction of  a  judgment  by  a  proceeding  in 
aid  of  execution,  unless  the  title  of  the 
judgment  debtor  thereto  is  clear  and  un- 
disputed. First  Nat.  Bank  v.  Cook,  2:  1012, 
76   Pac.   674,   12  Wyo.  492. 

Digest  1-52  KR.A.(N.S.) 


12.  The  atatutory  proceeding  in  aid  of 
execution  cannot  accoaiplish  in  all  respects 
the  results  secured  by  a  creditor's  bill,  since, 
if  property  is  alleged  to  have  been  fraudu- 
lently conveyed,  or  if  it  is  subject  to  claims 
or  liens  of  third  persons,  there  is  a  lack  of 
proper  parties  to  permit  of  a  proper  adjust- 
ment of  all  interests,  and  the  rendition  of  a 
decree  that  will  be  effectual  from  a  juris- 
dictional standpoint.  First  Nat.  Bank  v. 
Cook,  2:  1012,  76  Pac.  674,  12  Wyo.  492. 

13.  The  service  upon  a  judgment  defend- 
ant of  a  notice  requiring  him  to  appear  and 
answer  questions  regarding  his  assets,  un- 
der the  statute  relating  to  supplementary 
proceedings  in  aid  of  execution,  no  order 
being  made  forbidding  the  transfer  or  other 
disposition  of  his  property,  does  not  give 
plaintiff  a  lien  upon  funds  held  by  the  de- 
fendant, nor  prevent  the  defendant  from 
withdrawing  such  funds  from  the  reach  of 
his  creditors  by  investing  them  in  a  home- 
stead. McConnell  v.  Wolcott,  3:  122,  78  Pac. 
848,  70  Kan.  375.  (Annotated) 


EXECUTION  DEBTOR. 

As  necessary  party  to  mandamus  proceed- 
ing to  compel  issuance  of  execution,  see 
Mandamus,  107.  -, 

K) 


EXECUTIVE  DEPARTMENT. 

Attorney  general,  see  Attorney  Genebal. 
Governor,  see  Governor. 
Relation  of,  to  courts,  see  CoimTS,  53-70. 
Disposal  of  public  lands  by  Department  of 
Interior,  see  I'ublic  Lands,  I.  b. 


EXECUTORS     AND     ADMINISTRA- 
TORS. 

/.  Appointment;       resignation;       re- 
moval,  1—39. 
II.  Powers  and  liahilitles;  conduct  of 
estate;    assets,    4:0—86. 

a.  Rights,    powers,     and    duties, 

40-58. 

1.  In  general,   40— SO. 

2.  Possession   or  disposal   of 

property,   51—58. 

a.  Personal  property; 

choses  in  action,  SI. 

b.  Real  property,  62—58. 

b.  Liahitities,   59-79. 

c.  Assets,  SO— 86. 

III.  Suits  affecting  estate,  87—95. 

a.  On  heJialf  of,  87—92. 

b.  Suits   and  judgments   against, 

93-95. 
IV.  Indebtedness;      distributiim ;      ac- 
counting and  settlement,  96— 
133. 
a.  Debts     and     obligations,     96— 
113. 
1.  In  general,  96—102. 


EXECUlUKa  AND  ADMIMSTRATORS. 


1263 


IV.  a — continued. 

2.  Presentation  and  proof  of 

clainia,     10,3—106. 

3.  JPaiiment       and       priority, 

107-109. 

4.  Burial       expenses,       110— 

113. 

b.  Iruitructions     and     control     by 

court. 

c.  Distribution;   accountiny ;    set- 

tlement; disvharue,  114— 
133. 

1.  In  general,   n't— ,117. 

2.  Commissions;     reimburse- 

ment,  lis— 121. 

3.  Retainer;      deduction      or 

set-off,   122-124. 
4:.  Effect   of  accounting;   im- 
peachment ;       reopen  ing, 
125-133. 
T.  Creditor's     rights     against     land; 
sale   of   land   for  debts. 
VI.  Foreign  and  ancillary  administra- 
tion,   134r-14:l. 

Contract  by  devisee  to  share  real  estate 
with  heir,  see  Action  or  Suit,  12; 
Ck)UBTS,  203. 

Substitution  of  legal  representative  on 
death  of  party  before  appeal,  see  Ap- 
peal AND  Ebbob,  112. 

Recovery  by  executor  of  probate  fee  paid 
under  duress,  see  Assumpsit,  64. 

Claim  by,  for  moneys  paid  attorney  in  suit 
by  administrator  of  child  for  its  neg- 
ligent killing,  see  Attoeneys,   39. 

Liability  of  bank  whose  cashier  through  its 
machinery  misappropriates  funds  of  es- 
tate of  which  he  is  executor,  see  Banks, 
34-37. 

Special  deposit  by  administrator,  see 
Banks,  218. 

Compromise  agreement  in  action  by  one  who 
has  wrongfully  secured  letters  of  ad- 
ministration, see  Compromise  and  Set- 
tlement, 4. 

Administration  on  estates  of  absentee,  see 
Constitutional  Law,  396,  397,  593, 
778;  Courts,  242;  Statutes,  314. 

Administration  on  estate  of  soldier  dying  in 
soldier's  home,  see  Courts,  244. 

Postponing  suit  on  promise  of  debtor  to 
pay,  as  raising  new  obligation  for  bene- 
fit of  estate  of  payee,  see  Contracts, 
60. 

Agreement  of,  to  defeat  probate  of  will,  see 
Contracts,  485. 

Effect  of  administration  in  county  court, 
on  jurisdiction  of  Federal  court  to  en- 
force judgment  rendered  against  de- 
ceased judgment  debtor,  see  Courts, 
268-271. 

Testamentary  direction  as  to  crops,  see 
Crops,  1. 

Measure  of  recovery  by  administrators  for 
causing  intestate's  death,  see  Damages, 
389. 

Contract  to  convey  by  good  and  sufficient 
deed,  see  DEEa>s,  2. 

Equitable  jurisdiction  of  suit  to  charge  es- 
tate of  life  tenant,  see  Equity,  5. 

Dieest  1-52  L.R^.(N.S.) 


Against  whom  should  bill  to  declare  escheat 
of  property  sold  in  course  of  adminis- 
tration under  alleged  invalid  will  b* 
instituted,  see  Escheat,  7. 

Estoppel  of,  see  Estoppel,  28,  33,  59,  80,  91, 
104;  Partnership,  86. 

Estoppel  of  child  receiving  from  father's 
executor  proceeds  of  property  sold  by 
father  to  assert  title  as  against  pur- 
chaser from  him,  see  Estoppel,  240. 

Attaching  creditor  of  administrator  as 
bound  by  estoppel  upon  him,  see  Es- 
ix)Ppel,  257. 

Right  of  executor  to  assert  estoppel  of 
stranger  to  make  claim  against  estate 
of  legatee,  see  Estoppel,  264. 

Duty  of  one  entitled  to  accounting  from 
heir  for  money  received  from  father's 
executor,  to  show  amount  received,  see 
Evidence,  655. 

Admissibility  of  ancient  deed  signed  by 
executrix,  see  Evidence,  744. 

Evidence  of  declarations  of,  see  Evidence, 
1256. 

Execution  as  lien  upon  legacy  in  hands  of 
executor,  see  Execution,  8, 

Fraud  of  executor  toward  legatee,  see 
Fraud  and  Deceit,  23. 

Injunction  against  publication  or  multipli- 
cation of  testator's  private  letters,  see 
Injunction,  95. 

Effect  of  administrator's  sale  of  insured 
property  to  work  change  of  title,  see 
Insurance,  229. 

Administrator  of  keeper  of  saloon  who  con- 
tinues business  as  a  person  engaged  in 
liquor  business  within  meaning  of  in- 
surance policy,  see  Insurance,  353. 

Collateral  attack  on  judgment  in  adminis- 
tration proceedings,  see  Juikjment,  119, 
120,  127,  137,  138. 

Effect  of  order  to  administrator  to  deliver 
property  to  trustee  on  rights  of  cestui 
que  trust  thereto,  see  Judgment,  183. 

Libel  by,  see  Libel  and  Slander,  131,  132. 

Lien  of  creditor  of  decedent's  estate  on  por- 
tion of  estate  which  has  passed  into 
hands  of  bona  fide  purchaser,  see  Lien.s, 
9. 

Effect  of  delay  to  prevent  heirs  from  assert- 
ing that  estate  has  not  been  fully  ad- 
ministered, see  Limitation  of  Actions, 
60. 

Payment  of  mortgage  to  administrator  of 
mortgagee  where  will  is  afterward  dis- 
covered and  executor  appointed,  see 
Mortgage,   63. 

Foreclosure  of  mortgage  given  by,  see  Mort- 
gage,  92. 

Administrator  of  mortgagor  as  party  de- 
fendant in  suit  to  foreclose  mortgage, 
see  Mortgage,  102. 

Right  of  surviving  partner  to  require  exec- 
utor of  managing  partner  to  turn  over 
firm  assets,  see  PARTNiassHip,  74. 

Appointment  of  receiver  for  estate  in  hands 

of,  see  Receivers,  10. 
Specific  performance,  as  against  estate,  of 
promise  of  former  owner,  see  Specific 
Performance,  78. 


12G4 


EXECUTORS  AND  ADMINISTRATORS,  I. 


Subrogation  of  one  advancing  money  to 
exeeutor  to  pay  mortgage  to  rights  of 
mortgagee,  see  Subrogation,  15. 

Validity  of  probate  tax  or  fee,  see  Consti- 
tutional Law,  407;   Taxes,  281,  292. 

Title  of  statute  imposing  probate  tax  or  fee, 
see  Statutes,  HO.  141. 

Statute  imposing  probate  tax  or  fee  as  spe- 
cial legislation,  see  Statutes,  179. 

Taxation  of  stocks  in  foreign  corporation 
owned  by  foreign  testator  in  possession 
of  resident  executor,  see  Taxes,  134. 

Assessing  land  devised  to  be  sold  to  dece- 
dent instead  of  to  his  estate,  see  Taxes, 
170. 

Executors  as  "assigns"  within  meaning  of 
tax  laws,  see  Taxes,  218. 

Right  of  state  to  fix  time  for  settling  of 
decedent's  estate,  see  Taxes,  280. 

Inheritance  tax  on  money  lost  through  mis- 
appropriation of,  by  executor,  see 
Taxes,  359. 

Fraud  in  use  of  name  of  decedent  by  execu- 
tor in  carrying  on  business,  see  Trade- 
names, 21. 

Compelling  administrator  of  insolvent  trus- 
tee to  redeem,  see  Trusts,  118. 

As  to  legacies,  generally,  see  Wills,  III. 

Competency  of  executor  as  witness  on  pro- 
bate of  will,  see  Wills,  97,  98. 

Right  of  widow's  executor  to  legacy  left  to 
her,  see  Wills,  351. 

Effect  of  admissions  of,  to  bind  estate,  see 
Witnesses,  145. 

Competency  of  witness  in  action  by  or 
against,  see  Witnesses,  I.  c. 

I.  Appointment;  resignation;  removal. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Conclusiveness  of  findings  of  probate  court 
upon  which  letters  of  administration 
are  granted,  see  Judgment,  119. 

Effect  of  appointment  to  terminate  prior 
contract  for  care  of  property,  see  Mas- 
ter AND  Servan.t,  99. 

Appointment  of  trustees,  generally,  see 
Trusts,  II.  a. 

1.  A  statutory  authorization  of  testa- 
mentary executors  and  guardians  applies 
only  to  such  as  are  named  in  a  will  dis- 
posing of  property.  Blacksher  Co.  v. 
Northrop,  42:  454,  57  So.  743,  176  Ala.  190. 

2.  A  right  of  action  for  negligent  killing 
of  a  person  is  an  asset  of  his  estate,  suffi- 
cient to  warrant  the  appointment  of  an  ad- 
ministrator. Jordan  v.  Chicago  &  N.  W.  R. 
Co.  1:  885,  104  N.  W.  803,  125  Wis.  581. 

(Annotated) 
Juriidiotion  to  appoint.      inn  to  jiimii 
See  also  infra,  30.  1,7  -r-iv 

3.  The  courts  of  a  county  in  which  a 
corporation  against  which  an  estate  has  a 
claim  for  wrongful  death  has  its  habitat 
have  jurisdiction  to  appoint  an  administra- 
tor, although  the  death  occurred  in  another 
state,  since  the  demand  against  the  com- 
pany is  property  of  the  decrdent's  eiitate. 
Digest   1-52  L.R.A.(N.S.) 


Fickeisen    v.    Wheeling    Electrical    Co.    27: 
893,  67  S.  E.  788,  67  W.  Va.  335. 

4.  The  appointment  by  a  probate  court 
of  Alabama  of  a  personal  representative  of 
a  deceased  resident  of  that  state  other  than 
one  of  the  preferred  classes  mentioned  in 
tlie  statute,  and  before  the  expiration  of 
time  within  which  a  person  in  such  pre- 
ferred class  may  make  application  there- 
for, upon  a  contract  of  one  purporting  to  be 
the  widow  of  the  decedent,  is  not  void  for 
lack  of  jurisdiction  of  the  court  over  the 
subject-matter,  although  the  person  con- 
senting was  neither  the  widow  nor  one  au- 
tliorizcd  to  give  such  consent,  where  none 
of  the  persons  in  the  preferred  classes  make 
application  within  the  statutory  period  for 
appointment.  Alabama  G.  S.  R.  Co.  v.  Ilill, 
43:  236,  76  S.  E.   1001,  139  Ga.  224. 

5.  Upon  death  within  the  state  of  a 
nonresident  who  has  brought  action  to  re- 
cover damages  for  wrongful  ejection  from  a 
railroad  train  upon  which  he  was  a  pas- 
senger, the  pending  action  is  a  sufficient 
asset  to  support  the  appointment  of  an  ad- 
ministrator in  the  county "  where  it  was 
pending.  Forrester  v.  Southern  P.  Co.  48: 
I,  134  Pac.  753,  136  Pac.  705,  36  Nev.  247. 

6.  The  appointment  of  an  administrator 
iipon  a  finding  of  decedent's  death  and  pos- 
session of  property  within  the  cojmty  is 
conclusive  of  the  authority  of  the  court  to 
make  the  appointment  until  set  aside  on 
direct  attack,  although  a  will  is  found  and 
subsequently  probated  in  another  county. 
Zeigler  v.  Storey,  17:  878,  69  Atl.  894,  220 
Pa.  471. 

Wlio  may  be  appointed. 

See  also  infra,  35.  ' 

7.  The  right  to  act  as  executor  is  not  a 
privilege  or  immunity  within  the  protection 
of  the  Federal  Constitution.  Re  Mulford. 
i:  341,  75  N.  E.  345,  217  111.  242. 

8.  Nonresidents  may  be  denied  permis- 
sion to  act  as  executors  of  local  estates. 
Re  Mulford,  i:  341,  75  N.  E.  345,  217  III.  242. 

(Annotated) 

9.  A  nonresident  alien  is  not  an  incom- 
petent executor  under  a  statute  which  pro- 
vides that  if  any  executor  shall  reside  out 
of  the  state,  the  court  may  remove  him.  Re 
Breen,  i:  349,  105  N.  W.  28,  142  Mich.  58. 

(Annotated) 

10.  There  is  no  provision  of  law  vesting 
the  administration  of  an  estate  in  the 
guardian  of  the  property  of  an  insane  ad- 
ministrator, and  as  between  such  person 
and  the  son  of  the  intestate,  the  latter  is 
entitled  to  letters  of  administration.  Me- 
Cranie  v.  Hutchinson,  45:  1073,  77  S.  E. 
1064,   139   Ga.   792. 

11.  Indebtedness  to  the  estate  does  not 
disqualify  one  from  acting  as  executor.  Re 
Breen,  i:  349,  105  N.  W.  28,  142  Mich.  58. 

12.  The  right  of  a  creditor  of  an  estate 
to  administer  upon  such  estate  is  based  upon 
his  supposed  interest  therein;  and  when  the 
status  of  creditor  ceased,  his  right  to  ad- 
minister upon  the  estate  ceased.  Re  Engle- 
hart,  45:  237,  128  Pac.  67,  17  N.  M.  299. 

(Annotated) 

13.  A  brother  of  an  intestate  is  not  his 


.{ 


EXECUTORS  AND  ADMINISTRATORS,  I. 


1265 


next  of  kin,  within  the  meaning  of  a  stat- 
ute permitting  letters  of  administration  to 
be  granted  to  the  next  of  kin,  if  deceased 
left  a  child  surviving  him,  although  the 
child  uoes  not  apply  for  administration  in 
his  own  behalf,  where,  under  the  statute, 
the  distribution  of  the  estate  will  be  solely 
to  the  child.  Ro  Weaver,  22:  1161,  119  N. 
W.  69,  140  Iowa,  615. 

14.  Under  a  statute  permitting  letters  of 
administration  to  be  granted  on  the  estate 
of  an  absentee  if  the  person  applying  would 
be  entitled  to  administer  were  the  sup- 
posed decedent  actually  dead,  a  right  to  ad- 
minister sufficiently  appears  in  the  absence 
of  relatives  or  creditors,  where  the  law 
provides  that,  in  such  cases,  the  estate  shall 
go  to  the  use  of  the  school  commissioners, 
which  is  a  department  of  the  mayor  and 
council  of  the  city,  and  the  applicant  al- 
leges that  he  applies  as  agent  of  the  mayor 
and  city  council.  Savings  Bank  v.  Weeks, 
22:  221,  72  Atl.  475,  110  Md.  78. 

15.  A  statute  permitting  administration 
upon  the  estates  of  absentees  if  the  person 
applying  would  be  entitled  to  administer 
if  the  supposed  decedent  was  actually  dead 
requires  resort  to  the  general  testamen- 
tary law  to  ascertain  the  persons  entitled, 
and,  in  the  absence  of  application  by  a 
creditor  or  next  of  kin,  administration  may 
be  granted  to  a  representative  of  the  pub- 
lic, who  are  entitled  to  the  estate  by  es- 
cheat. Savings  Bank  v.  Weeks,  22:  221,  72 
Atl.  475,  110  iVId.  78. 

16.  The  foreign  consul  ia  not  entitled  to 
administer  upon  the  estate  of  a  citizen  of 
his  country  dying  within  one  of  the  United 
States,  in  preference  to  the  public  adminis- 
trator of  such  state,  under  a  treaty  provi- 
sion that  if  any  citizen  of  either  country 
shall  die  in  the  territory  of  the  other,  the 
consul  of  the  nation  to  which  he  belonged 
shall  have  the  right  to  intervene  in  the  pos- 
sesion, administration,  and  judicial  liquida- 
tion of  the  estate  of  the  deceased,  conform- 
ably with  the  laws  of  the  country,  for  the 
benefit  of  the  creditors  and  legal  heirs.  Re 
Ohio,  37:  549,  108  Pac.  516,  157  Cal.  552. 
Administrator   de  bonis  non. 

17.  An  administrator  who  has  been  ad- 
judged to  be  insane  is  disqualified  further 
to  act,  and  the  estate  is  unrepresented,  so  as 
to  authorize  the  appointment  of  an  ad- 
ministrator de  bonis  non  to  complete  the 
administration.  McCranie  v.  Hutchinson, 
45:  1073,  77  S.  E.  1064,  139  Ga.  792. 

(Annotated) 

18.  Where  an  intestate  was  in  posses- 
sion of  land  at  his  death,  and  subsequently 
his  administratrix  paid  a  balance  on  the 
purchase  money  out  of  the  proceeds  of  the 
sale  of  personal  property  belonging  to  the 
estate,  and,  after  taking  the  deed  to  herself 
in  such  a  way  as  to  vest  the  title  in  herself 
individually,  caused  her  dower  to  be  laid 
off  in  the  land,  and  procured  a  deed  to  the 
land  to  herself  from  some  of  the  heirs  of  the 
intestate,  and  afterwards  was  adjudged  in- 
sane, a  prima  facie  case  of  an  unadminis- 
tercd  asset  is  made,  such  as  to  authorize  the 
appointment  of  an  administrator  de  bonis 
Dieest  1-52  L.R.A.(N.S.)  80 


non.     McCranie  v.  Hutchinson,  45:1073,  77 
S.  E.   1064,  139  Ga.  792. 

19.  The  appointment  of  an  administra- 
tor de  bonis  non  and  the  distribution  by  him 
to  the  remainderman  are  not  necessary  to 
vest  in  him  title  to  a  leasehold  bequeathed 
to  the  executor  for  life  with  remainder 
over,  where  the  executor  distributes  the 
life  estate  to  himself,  in  his  accounts,  which 
are  approved  by  the  probate  court,  and 
dies  without  actually  distributing  the  re- 
mainder. Crean  v.  McMahon,  14:  798,  68 
Atl.  265,  106  Md.  507.  (Annotated) 
Xotice;  procedure. 

20.  The  giving  of  proper  notice  for  the 
appointment  of  an  administrator  brings  into 
court  all  persons  having  an  interest  in  tae 
estate,  for  all  purposes  necessary  for  the  set- 
tlement of  the  estate,  including  its  distri- 
bution among  the  heirs  of  decedent.  Bar- 
rette  v.  Whitney,  37:  368,  106  Pac.  522,  36 
Utah,  574. 

21.  Application  for  letters  of  adminis- 
tration upon  the  estate  of  an  absentee  may 
be  applied  for  orally  unless  the  statute  re- 
quires it  to  be  done  in  writing.  Savings 
Bank  v.  Weeks,  22:  221,  72  Atl.  475,  110  Md. 
78. 

22.  A  representative  of  the  public,  apply- 
ing for  letters  of  administration  upon  the 
estate  of  an  absentee,  for  the  purpose  of 
claiming  an  escheat,  need  not  allege  ab- 
sence of  relatives  or  creditors,  where  the 
statute  requires  the  court  to  be  satisfied, 
before  granting  the  letters,  that  the  per- 
son applying  would  be  entitled  to  admin- 
ister if  the  supposed  decedent  were  actu- 
ally dead.  Savings  Bank  v.  Weeks,  22:  221, 
72  Atl.  475,  110  Md.  78. 

23.  An  oath  faithfully  to  perform  his 
duties  is  not  necessary  to  the  qualification 
of  an  executor,  unless  made  so  by  statute. 
Leahy  v.  Haworth,  4:  657,  141  Fed.  850,  73 
C.  C.  A.  84. 
Validity;  collateral  attack. 

24.  The  grant  by  the  probate  court  of 
one  county,  of  letters  of  administration 
upon  an  estate,  while  an  unrevoked  grant 
of  letters  exists  in  another  county,  is  of  no 
avail,  although  tlie  letters  first  issued  were 
fraudulently  obtained.  Carr  v.  Illinois  C. 
R.  Co.  43:  634,  60  So.  277,  180  Ala.  159. 

25.  That  one  nominated  by  a  will  to 
execute  it  is  designated  as  "executor  and 
administrator"  does  not  render  the  pro- 
vision void.  Conowav  v.  Fulmer,  34:  963, 
54  So.  624,  172  Ala.  283. 

26.  When  an  application  is  presented  to 
the  probate  court  for  the  appointment  of  an 
administrator  of  a  surviving  partnership, 
and  the  court  finds  the  existence  of  the 
facts  authorizing  it  to  exercise  jurisdic- 
tion, the  action  of  the  court  in  making  the 
appointment  is  not  subject  to  collateral  at- 
tack. Parnell  v.  Thompson,  33:  658.  105 
Pac.  502,  81  Kan.  119. 

27.  The  appointment,  by  a  court  of  com- 
petent jurisdiction,  of  an  administrator,  is 
not  open  to  collateral  attack  in  a  suit  by 
the  administrator  to  collect  assets,  on  the 
ground  that  it  was  void  because  of  lack  of 
assets   in   the   state.     Jordan  v.  Chicago   & 


1266 


EXECUTORS  AND  ADMINISTRATORS,  II.  a,   1. 


N.  W.  R.  Co.  x:  885,  104  N.  W.  803,  125  Wis. 
581. 

28.  A  judgment  of  a  court  of  probate  of 
the  state  of  Alabama,  granting  letters  of 
administration,  rendered  by  a  court  hav- 
ing jurisdiction  of  the  subject-matter,  and 
apparently  legal  on  its  face,  when  offered  as 
evidejice  in  a  cause  pending  in  this  state, 
cannot  be  collaterally  impeached  for  fraud. 
Alabama,  G.  S.  R.  Co.  v.  Hill,  43:  236,  76 
S.  E.  1001,  139  Ga.  224. 

29.  A  probate  court  which  has  appoint- 
ed an  administrator  for  an  estate  as  tliat 
of  a  person  designated  by  the  wrong  name 
may  ignore  such  appointment  and  appoint 
another  administrator  for  the  estate  under 
the  proper  name,  without  subjecting  its 
action  to  collateral  attack.  Milbra  v. 
Sloss-Sheffield  Steel  &  Iron  Co.  46:274,  62 
So.  176,  182  Ala.  622.  (Annotated) 

30.  Lack  of  jurisdiction  does  not  appear 
on  the  face  of  an  order  appointing  an  ad- 
ministrator, by  a  court  of  general  juris- 
diction over  the  appointment,  so  as  to  ren- 
der it  subject  to  collateral  attack,  by  a  re- 
cital that  the  court  "was  opened  and  held" 
on  a  certain  day,  whereas  the  statute  re- 
quired the  regular  term  to  begin  on  the 
preceding  day,  the  court  to  sit  from  day  to 
day  80  long  as  business  should  require,  since 
it  will  be  assumed  that  the  court  regu- 
larly convened  on  the  day  required  by  stat- 
ute, and  that  the  recital  in  the  order  re- 
ferred merely  to  the  opening  of  the  court 
for  the  transaction  of  business  on  the  day 
when  it  was  entered.  Dayton  Coal  &  Iron 
Co.  V.  Dodd,  37:  456,  188  Fed.  597,  110  C.  C. 
A.  395. 

31.  The  question  of  the  validity  of  the 
appointment  of  an  administrator  for  the 
estate  of  one  killed  by  another's  negligence 
cannot  be  raised  by  motion  to  dismiss  a  pe- 
tition filed  by  him  against  the  wrongdoer  to 
recover  damages  for  the  death.  Louisville 
V.  Schneider,  35:  207,  136  S.  W.  212,  143 
Ky.  171. 

32.  The  competency  of  an  administrator 
duly  appointed  cannot  be  contested  in  an 
action  brought  by  him  to  recover  for  the 
wrongful  death  of  his  intestate.  Fickeisen 
V.  Wheeling  Electrical  Co.  27:  893,  67  S.  E. 
788,  67  W.  Va.  335. 

Revocation;   nnllification. 

Removal  of  trustees,  generally,  see  Tbtjsts, 

-o-.     75,  76. 

33.  The  reversal  of  a  decree  admitting  to 
probate  a  will  which  does  not  nominate  an 
executor  authorizes  the  revocation  of  the 
authority  of  one  who  has  been  appointed  ad- 
ministrator with  the  will  annexed,  and  the 
appointment  of  an  administrator  under  the 
general  administration  statutes.  Hamilton 
v.  Williams,  21:  975,  118  S.  W.  358,  133  Ky. 
558.  (Annotated) 

34.  The  presentation  of  a  will  to  the 
register  of  one  county,  and  its  proof  by  the 
attesting  witnesses,  does  not  nullify  the  act 
of  a  register  in  another  county  in  granting 
letters  of  administration  upon  testator's  es- 
tate without  notice  of  the  will  and  before 
the  entry  of  %  decree  admitting  it  to  pro- 
bate. Zeigler  v.  Storey,  17;  878,  69  Atl.  894, 
220  Pa.  471. 

Dieest  1-52  LJt.A.CN^.) 


35.  The  authority  of  a  creditor  of  an  in- 
testate, who,  without  citation  of  his  next  of 
kin,  secures  letters  of  administration  upon 
liis  estate,  will  be  revoked  upon  the  motion 
of  a  nonresident  brother,  who  is,  by  stat- 
ute, entitled  to  administer  upon  the  estate, 
and  who  nio\fles  promptly  upon  learning 
the  facts,  although  by  the  statute  the  issu- 
ance of  citations  to  nonresidents  rests  in 
the  discretion  of  the  surrogate.  Re  Camp- 
bell, 18:  606,  85  N.  T:.  392,  192  N.  Y.  312. 
36.  An  administrator  appointed  on  the 
nomination  of  the  sole  surviving  child  of 
an  intestate,  who  is,  under  the  statute,  the 
sole  distributee  of  the  estate,  should  not  be 
removed  at  the  instance  of  a  brother  of  the 
intestate,  in  the  absence  of  anything  to  show 
that  the  appointment  was  improper,  or  that 
the  change  was  required  by  the  interests  of 
the  estate  as  a  whole,  or  by  the  interest  or 
right  of  some  beneficiary  of  the  estate. 
Weaver  v.  T.amb,  22:  1161,  119  N.  W.  69, 
140  Iowa,  615.  (Annotated) 

37.  Letters  of  administration  will  be  re- 
voked upon  the  discovery,  and  offer  for 
probate,  of  a  will,  although  creditors  and 
legatees  would  probably  not  be  prejudiced 
by  the  refusal  of  letters  testamentary  to 
the  executors,  and  the  continuance  in  office 
of  the  administrator  would  facilitate  set- 
tlement of  the  estate;  and  notwithstanding 
the  residuary  legatees  have  agreed  that  the 
administrators  i^iall  continue  to  settle  the 
estate  and  make  distribution  thereof  in  ac- 
cordance with  the  terms  of  the  will.  Re 
Nelson,  49:  894,  88  Atl.  974,  242  Pa.  167. 

( Annotated ) 
Resignation. 

38.  In  the  absence  of  express  statutory 
authorihy,  an  executor  and  testamentary 
trustee  who  has  qualified  cannot  be  permit- 
ted to  resign  in  order  to  place  the  trust  es- 
tate in  possession  of  a  member  of  testator's 
family  for  greater  economy  in  its  adminis- 
tration. Mclntvre  v.  Proctor,  13:  438,  59  S. 
E.  39,  145  N.  C.  288.  (Annotated) 

39.  The  status  of  one  of  two  or  more  co- 
executors  who  has  given  a  new  bond  and  re- 
tained his  position  after  the  resignation  of 
the  others  as  an  administrator  de  bonis 
non,  and  the  limitations  upon  the  rights 
and  power  of  administrators  de  bonis  non 
have  not  been  abrogated  nor  changed  by  §  1 
of  chapter  118  of  the  West  Va.  Code,  which 
deals  merely  with  the  matter  ot  resignation 
and  conditions  requisite  thereto,  nor  by  §§ 
25  and  32  of  chapter  87,  which  deal  with 
the  settlements  of  fiduciaries.  Brown  v. 
Brown,  47:  995,  78  S.  E.  1040,  72  W.  Va. 
648. 

II.  Pawers  and   liabilities;   conduct  of 
estate;    assets. 

a.  Rights,  powers,  and  duties. 

1.  In  general. 

(See  also   same   heading   in   Digest   LJR.A. 
1-10.) 

Of  foreign  or  ancillary  administrator,  mc 
mfra,        .   ^ -^j^  ^.J  Sri-  I  ii^^-sia 


EXECUTOlltS  A2\D   ADMINISTRATORS,  II.  a,   1. 


1267 


Right  to  appeal  trom  decree  as  to  construc- 
tion of  will,  see  Appeal  akd  Ebkob,  84. 

Duty  of  bank  paying  check  of  depositor 
after  his  death  to  account  to  personal 
representative,   see   Ba^ks,   92. 

Slmpowering  executor  to  distribute  estate 
among  such  charities  as  he  may  select, 
see  Charities,  42,  54-56. 

Interference  by  courts  with  discretion  of 
executor  conferred  by  will  in  distribut- 
ing estate  among  charities,  see  Chari- 
ties, 59. 

Due  process  in  administration  of  estate, 
see   Constitutional   Law,    591-593. 

Binding  effect  on  administrator,  of  contract 
by  intestate,  see  Contracts,  723,  724. 

Right  of  legal  representative  of  author  to 
copyright  in  unpublished  letters  or 
books,  see  Copyright,  2-4. 

Estoppel  of  one  executing  deed  as,  to  set 
up  existing  title  in  himself,  see  Es- 
toppel,  28. 

Right  of  administrator  to  exercise  rights 
of  guardian,  see  Guardian  and  Ward, 
1. 

Mechanics'  lien  for  material  fui'nished  un- 
der contract  with  administrator,  see 
Mechanics'  Liens,  3. 

Authority  of  administrator  to  extend  time 
on  note  by  intestate  so  as  to  release 
sureties  thereon,  see  Principal  and 
Surety,  55. 

40.  In  case  a  testator  sets  apart  a  certain 
turn  for  the  erection  of  a  suitable  monu- 
ment to  his  memory,  the  executors  may 
spend  ail  or  any  part  of  the  sum  for  a 
monument  in  their  discretion.  Fancher  v. 
Fancher,  23:  944,  103  Pac.  206,  156  Cal.  13. 

41.  Discretion  vested  in  an  executrix  by 
a  testator,  to  decide  when  his  son  shall  be 
morally  fit  to  have  control  of  property  be- 
queathed him,  will  be  controlled  by  the 
court  where  she  refuses  to  act  although 
moral  character  on  the  part  of  the  son  suHi- 
cient  to  enable  him  to  accumulate  and  pro- 
tect property  is  shown,  where  she  is  hostile 
to  the  son  and  would  profit  should  the  prop- 
erty be  kept  intact  and  he  die  without  issue. 
Re  Buchar,  25:  421,  74  Atl.  237,  225  Pa. 
427.  ( Annotated ) 

42.  The  statute  (executors'  act,  1830) 
which  provides  that  an  executor  shall  be  a 
trustee  for  the  person  or  persons  who  would 
be  entitled  to  the  estate  under  the  statute 
of  distributions  in  respect  of  any  residue 
not  expressly  disposed  of,  unless  it  shall 
appear  by  the  will  that  the  executor  is  to 
take  the  residue  beneficially,  applies  only 
in  cases  where  there  is  a  bare  appointment 
of  executors,  so  that  the  implication  of  law 
has  to  be  resorted  to  in  order  to  see  wheth- 
er the  estate  of  the  testator  not  other- 
wise disposed  of  vests  in  tliem  benefi- 
ciallv  virtute  officii.  Re  Robv,  4  B.  R. 
C.  256,  [1908]  1  Ch.  71.  Also  Reported 
in  77  L.  J.  Ch.  N.  S.  169,  97  L.  T.  N.  S. 
773. 

Ceejcecntors  and  administrators. 
Liability  for  acts  of  coexecutors,  see  infra, 
*^       72-75. 

^3.  One  of  two  joint  executors  having 
Direst  1-52  L.R.A.(N.S.) 


power  to  sell  real  estate  cannot  bind  the 
other  by  attempting  to  cliauge  the  terms  of 
the  option,  or  by  giving  a  new  one.  Trog- 
don  V.  Williams,  10:  867,  56  S.  E.  865,  144  N. 
C.   192, 

44.  One  of  two  executors  with  power  to 
sell  real  estate  cannot  ratify  the  act  of  his 
coexecutor  in  waiving  compliance  with  the 
terms  of  an  option,  after  it  has  terminated 
and  he  has  been  notified  of  the  election 
of  the  devisees  to  take  the  land  in  its  un- 
converted form.  Trogdon  v.  Williams, 
10:  867,  56  S.  E.  865,  144  N.  C.  192. 

As  to  inventory. 

Jurisdiction  of  appeal  from  order  requiring 
administratrix  to  inventory  property  of 
estate,  see  Apphial  and  Error,  73. 

Estoppel  of  widow  to  assert  title  to  prop- 
erty by  attempting  to  inventory  it  as 
belonging  to  the  estate,  see  Estoppei., 
62. 

Admissibility  of  inventory,  see  EvmEavcE, 
850. 

Use  of  fnnds. 

45,  46.  Executors  have  no  power  to  com- 
plete a  building  devised  in  an  unfurnished 
condition,  out  of  the  funds  of  the  estate, 
except  so  far  as  contracts  have  been  let  by 
the  testator.  Re  Hincheon,  36:  303,  116 
Pac.  47,  159  Cal.  755. 

To  make  compromise. 

For  death  of  ancestor,  see  Death,  50. 

Compromise    by    beneficiary    of    claim    for 

wrongful  death,  see  Death,  51-53. 
Authority  to  compromise  claim  for  death, 

see  Deiath,  53a. 
Creating  debt. 

47.  An  executor  who  is  empowered  by 
the  will  to  do  anything  concerning  testjitor's 
estate  which  he  himself  would  do  if  living, 
leaving  it  to  his  judgment  how  he  shall 
manage  "my  business,"  has  power,  where 
testator's  business  is  the  management  of  a 
corporation  of  which  he  is  practically  the 
sole  stockholder,  to  borrow  money,  if  neces- 
sary, to  carry  on  tlie  business,  and  bind  the 
entire  estate  for  its  repayment.  Schlick- 
man  v.  Citizens'  Nat.  Bank,  29:  264,  129 
S.  W.  823,  139  Ky.  268. 

Carrying  on  business. 

See  also  supra,  47;  infra,  67,  68. 

48.  Authority  conferred  upon  an  execu- 
tor to  carry  on  testator's  business  without 
bond  will  not,  upon  his  resignation,  pass  to 
an  administrator  de  bonis  non  with  the  will 
annexed.  Schlickman  v.  Citizens'  Nat. 
Bank,  29:  264,  129  S.  W.  823,  139  Ky.  268. 

49.  The  power  conferred  upon  an  execu- 
tor to  carry  on  testator's  business  does 
not  pass  to  an  administrator  de  bonis  non 
because  of  a  clause  to  the  eflFect  that  the  de- 
vise to  testator's  children  is  subject  to  the 
power  conferred  on  the  executor,  and  shall 
in  no  case  be  construed  as  a  limitation  up- 
on his  power  to  carry  on  the  business. 
Schlickman  v.  Citizens'  Nat.  Bank,  29:  264, 
129  S.  W.  823,  139  Ky.  268. 

50.  A  statute  providing  that  an  admin- 
istrator with  the  will  annexed  shall  exercise 
all  the  powers  and  authority,  and  possess 
the  same  rights  and  interest,  as  the  execu- 
tors named  therein,  does  not  confer  upon 


1268 


EXECUTORS  AND  ADMINISTRATORS,  II.  a,  2. 


such  administrator  a  power  conferred  by 
the  will  upon  the  executor,  to  carry  on  tes- 
tator's business  without  bond.  Schlickman 
V.  Citizens'  Nat.  Bank,  29:  264,  129  S.  W. 
823,  139  Ky.  268.  (Annotated) 

2.  Possession  or  disposal  of  property. 

a.  Personal  property;  choses  in  action. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

.Requiring   bond    of    administrator    as    con- 
j^,        dition   of   paying   over   to   him   deposit 
of  intestate,  see  Banks,  234. 
Requiring    bond    of    administrator    of    de- 
positor as  condition  of  paying  deposit 
to  him,  see  Banks,  234. 
Replevin   against,   by   mortgagee   for   mort- 
gaged  goods  of  which   mortgagor   died 
possessed,  see  Replevin,   6. 

51.  An  administrator  cannot  assign  to 
the  widow  without  consideration  a  right  of 
action  for  death  of  his  intestate,  constitut- 
ing part  of  the  assets  of  tlie  estate,  where 
there  are  surviving  children  and  under  the 
statute,  any  recovery  is  for  the  benefit  of 
both  widow  and  children.  Flynn  v.  Chi- 
cago G.  W.  R.  Co.  45:1098,  141  N.  W.  401, 
159   Iowa,  571.  (Annotated) 

b.  Real  property.  \ 

(Bee  also  same  heading  in  Digest  L.R.A  ' 
1-10.) 

Adverse  possession  by  executor,  see  Au 
VEBSE  PossEssiox,  25. 

SuflBciency   of   evidence   to   show   that    pur-  j 
chase  price  of  decedent's  land  sold  went  | 
to    satisfy    debts    which    were    encum- 
brance on  title  of  heir,  see  Evidknce, 
2308. 

Injunction  to  restrain  sale  of  real  ustate, 
see  Injunction,  413. 

Liability  for  interest  of  heirs  lequired  to 
refund  purchase  money  of  land  ille- 
gally sold  by  administrator,  st-e  In- 
terest, 46. 

Executor's  right  to  possession  as  terminat- 
ing contract  for  care  of   property  and 
doing   work   thereon,   see    Mastkr   and 
^,.        Seevant,  99. 

;;When  power  of  sale  given  executors  by 
will  is  coupled  with  an  interest,  st!e 
Powers,  9. 

By  trustee,  see  Tuusts,  93-101. 

Sale  by  administrator  of  property  under 
mistaken  belief  that  it  is  subject  to 
dower,  see  Vendob  and  Purchaseb,  8. 

Executor's  title  to  realty  directed  to  be 
sold  and  proceeds  divided,  see  Wills, 

379; 

See  also  supra,  43,  44. 

52.  An  administrator  is  not  entitled  to 
the  possession  of  property  of  which  the 
decedent  whose  estate  he  represents  died 
possessed,  as  against  a  defnndant  who  shows  j 
that  he  is  the  equitable  owner  thereof,  in 
Dige»t  1-52  I<.R.A.(N.S.) 


the  absence  of  proof  that  there  are  cred- 
itors of  the  estate  whose  equitable  clauns 
to  the  property  take  precedence  over  that 
of  the  defendant.  Koslowski  v.  Newman, 
3:  704,  105  N.  W.  295,  74  Neb.  704. 

(Annotated) 

53.  The  executor  has  authority  to  make 
the  sale  under  a  power  in  a  will  directing 
property  to  be  converted  into  money  and 
the  proceeds  distributed,  llaggin  v.  Straus, 
50:  642,  146  S.  VV.  391,  148  Ky    140. 

64.  Power  conferred  upon  executors  to 
sell  testatDr's  real  estate  does  not  include 
power  to  give  an  option  tlie:<'oii.  Trogdon 
V.  Williams,  10:  867,  56  .S.  E.  86.'),  144  N.  C. 
192.  (Annotated) 

55.  The  power  of  an  executor,  under  a 
direction  in  the  will,  to  sell  real  estate  and 
distribute  the  proceeds  is  not  destroyed  by 
an  order  of  court  declaring  the  estate  set- 
tled, and  discharging  him  as  executor. 
Starr  v.  Willoughby,  2:  623,  75  N.  E.  1029, 
218  111.  485.  (Annotated) 

56.  The  taking  possession  by  an  execut- 
or de  son  tort  of  premises  for  which  deced- 
ent had  secured  a  lease  to  begin  in  future, 
paying  rent  from  month  to  month,  does  not 
give  iiini  any  rights  under  the  lease,  but 
makes  him  tenant  only  from  month  to 
month,  since  he  would  have  no  authority  to 
take  [iossession  under  the  lease.  Grace  v. 
Seibert,  22:  301,  85  N.  E.  308,  235  111.  190. 

(Annotated) 

57.  An  executor  having  a  naked  power 
to  sell  city  lots  has  implied  authority  to  in- 
sert restrictive  covenants  in  the  deeds  with 
respect  to  the  building  line  of  the  houses  to 
be  erected  thereon,  which  will  bind  the  es- 
tate in  favor  of  purchasers  of  the  first  lots, 
and  may  be  enforced  by  them  against  later 
purchasers.  Simmons  v.  Crisfield,  26:  663, 
90  N.  E.  956,  197  N.  Y.  365. 

Sale  by  order  of  court. 

Statute  authorizing  sale  of  property  of  ab- 
sent heir,  see  Constitutional  Law, 
608. 

Effect  of  judgment  on  after-born  children, 
see   Judgment,   222. 

Enforcement  of  purchaser's  bid  at  admin- 
istrator's sale,  see  Judicial  Sale,  14. 

Delay  in  petitioning  for  sale  to  pay  debts, 
see  Limitation  of  Actions,  59. 

When  proceeding  for  sale  of  decedent's  real 
property  is  barred,  see  Limitatio.n  of 
Actions,  267. 

Rescission  of  purchase  at  administrator's 
sale,  see  Vendor  and  Pubcuaser,  76. 

Right  of  widow's  administrator  after  elec- 
tion by  her  to  take  under  will,  see 
Wills,   371. 

58.  A  sale  of  real  estate  belonging  to  the 
estate  of  a  testator,  made  by  an  executor 
to  the  surety  on  his  bond  under  an  order 
of  the  probate  court,  procured  through  the 
fraud  of  the  executor,  may  be  set  aside  at 
the  suit  of  a  devisee,  although  the  surety 
was  ignorant  of  the  dishonest  conduct  of 
his  principal.  Fincke  v.  Bundrick,  4:  820, 
83  Pac..403,  72  Kan.  182.  (Annotated) 
Purchase  by  executor. 

Personal  liability  of  trustee  on  contract,  see 
Trial,  120. 


EXECUTORS  AND  ADMINISTRATORS,  II.  b. 


1209 


b.  Liabilities.  .,.-r      •);{; 

(See  aho  same  heading  in  Digest  L.R.A. 
1-10.) 

Sufficiency  of  evidence  to  show  that  exec- 
utor used  funds  of  estate  to  pay  his 
individual    debt,    see    Evidence,    2300. 

Liability  to  garnishment,  see  Garnish- 
ment, 9,   10. 

Liability   for   interest,   see   Interest,   I.   f. 

Petition  in  action  to  recover  for  services 
by  attorney  employed  by  administrator 
on  behalf  of  estate,  see  Pleading,  179. 

Assessment  to  personal  representatives  of 
property  omitted  during  lifetime  of 
taxpayer,  see  Taxes,   171,  172,   178. 

Liability  of  administrator  for  failure  to 
collect  inheritance  tax,  see  Taxes,  360. 

Competency  of  vritnesses  in  action  against 
administrator  in  individual  capacity, 
see  Witnesses,  43. 

59.  The  administrator  of  a  decedent's  es- 
tate is  not  liable  in  an  action  at  law  for  the 
amount  expended  by  one  nominated  as  ex- 

•ecutor,  in  an  instrument  purporting  to  be 
decedent's  will,  in  attempting  to  secure  ith 
probate,  where  the  instrument  is  rejectea 
in  the  court  of  first  instance  because  of  in- 
validity, and  its  decision  stands  unreversed. 
Dodd  V.  Anderson,  27:  336,  90  N.  E.  1137, 
197  N.  Y.  466. 

60.  An  executor  is  not  personally  charge- 
able with  the  amount  applied  in  payment  of 
unproved  debts  of  testator  against  which 
he  might  have  pleaded  the  statute  of  lim- 
itations, where  the  estate  was  devised  in 
trust  for  the  payment  of  debts.  Gordon  v. 
McDougall,  5:  355,  37  So.  298,  84  Miss.  715. 

61.  Executors  acting  under  authority  of 
a  will  on  file  are  not  personally  liable  on 
a  warranty  purporting  to  bind  them  as  ex- 
ecutors in  a  deed  of  testator's  real  estate, 
which,  although  authorizing  the  sale,  did 
not  authorize  the  warranty,  so  that  they  are 
not  liable  in  their  representative  capacity. 
Ivey  V.  Vaughn,  43:  377,  76  S.  E.  464,  93  S. 
C.   203.  (Annotated) 

62.  An  administrator  appointed  under  the 
provisions  of  a  statute,  for  the  estate  of  a 
person  whose  whereabouts  have  been  un- 
known for  a  period  of  years,  may  lawfully 
collect  the  insurance  upon  his  life,  althougli 
he  is  not  dead;  and  is  therefore  not  per- 
sonally liable  to  return  the  amount  col- 
lected upon  the  reappearance  of  the  insured. 
New  York  L.  Ina.  Co.  v.  Chittenden,  11:  233, 
112  N.«W.  96,   134  Iowa,  613. 

63.  A  donee  of  a  life  insurance  policy 
payable  to  the  administrator  of  the  insured, 
who  delivers  the  policy  to  tlie  administrator 
for  collection,  may  maintain  an  action 
against  him  in  his  individual  capacity,  to 
recover  the  proceeds.  Gledhill  v.  Mc- 
Coombs,  45:  26,  8J  Atl.  247,  110  Me.  341. 

64.  An  executor  in  charge  of  a  building 
belonging  to  the  estate  is  not  liable  for  in- 
jury to  a  servant  by  the  incompetence  of  a 
coservant  which  a  competent  superintend- 
ent whom  he  had  placed  in  charge  of  the 
building  intrusted  with  the  operation  of  the 
Digest  1-52  L.R.A.(N.S.) 


elevator,  where  he  is  to  receive  no  benefit 
whatever  from  the  running  of  the  building, 
so  that  he  does  not  bear  the  relation  of 
master  to  such  superintendent.  Fetting  v. 
Winch,  38:  379,  104  Pac.  722,  54  Or.  600. 

(Annotated) 

65.  A  personal  judgment  against  the  ad- 
ministrator for  a  claim  against  the  estate 
is  not  warranted  by  a  statute  providing 
that  the  judgment  must  be  that  the  ad- 
ministrator pay  in  due  course  of  adminis- 
tration. Smith  V.  Hanson,  18:520,  96  Pac. 
1087,  34  Utah,  171. 

For  attorneys'  fees. 

66.  An  administrator  is  individually  lia- 
ble to  an  attorney  employed  by  him  to  prose- 
cute an  action  in  his  official  capacity,  and 
is  entitled  to  reimbursement  therefor  out 
of  the  estate.  Brown  v.  Quinton,  25:  71, 
102  Pac.  242,  80  Kan.  44. 

Carrying  on  business. 

67.  Consent  by  all  interested  in  a  de- 
cedent's estate,  that  his  business  shall  be 
continued  by  the  administrator,  will  re- 
lieve the  administrator  from  liability  for 
losses  resulting  therefrom,  although  he 
failed  to  inform  them  that  his  operations 
were  not  profitable.  Swaine  v.  Hemphill, 
40:  201,    131    N.    W.    68,    165    Mich.    561. 

(Annotated) 

68.  In  the  absence  of  a  testamentary  di- 
rection an  administrator  of  the  estate  of  a 
deceased  person  cannot  carry  on  the  business 
of  the  decedent,  and  if  he  does  so  with- 
out authority  he  will  be  individually  bound 
for  the  contracts  of  the  business.  Campbell 
V.  Faxon,  5:  1002,  85  Pac.  760,  73  Kan.  675. 
Deposits  in  bank. 

69.  An  administrator  who  deposits  funds 
in  a  bank  in  good  standing  in  the  communi- 
ty, and  promptly  distributes  the  interest  to 
the  next  of  kin,  is  not  liable  for  losses 
caused  by  the  failure  of  the  bank,  no  negli- 
gence on  his  part  being  shown,  and  the  exi- 
gencies of  administration  requiring  the  fund 
to  be  kept  on  hand.  Knapp  v.  Jessup,  7:  617, 
109  N.  W.  666,  146  Mich.  348.    (Annotated) 

70.  The  retaining  in  a  bank,  by  an  ad- 
ministrator, for  three  months,  of  money  I'e- 
ceived  by  him,  instead  of  distributing  it, 
does  not  make  him  liable  for  its  loss  through 
failure  of  the  bank,  where  he  had  a  right 
to  retain  money  for  the  use  of  testator's 
widow,  which  might  be  called  for  at  any 
time.  Knapp  v.  Jessup,  7:  617,  109  N.  W. 
066,  146  Mich.  348. 

71.  That  an  administrator  directs  the 
banl<*  to  credit  a  fund  deposited  by  him  to 
his  account  as  administrator  will  not  relieve 
him  from  liability  in  case  the  fund  is  lost  ' 
through  failure  of  the  bank,  if  tlie  fund  is 
in  fact  credited  to  him  individually,  and 
he  accepts  a  pass  book  showing  that  fact. 
Chancellor  v.  Chancellor,  45:1,  58  So.  423, 
177  Ala.  44,  (Annotated) 
Coexecutors  and  coadministrators. 

As  to  powers  of  coexecutor,  see  supra,  43 

44. 
See  also  infra,  90. 

72.  One  executor  will  not,  in  an  account- 
ing between  themselves,  be  charged  for  loss- 
es caused  by  the  negligent  manag<;ment  by 


1270 


EXECUTORS  AND   ADMINISTHATORtS,   il.  c. 


his  coexecutor  of  a  portion  of  the  estate 
which  was  turned  over  to  him  to  care  for. 
Cheever  v.  Ellis,  1 1 :  296,  108  N.  W.  390,  144 
Mich.  477.  (Annotated) 

73.  Neither  of  two  joint  executors  is  es- 
topped, as  between  themselves,  by  the  fil- 
ing of  a  joint  inventory  and  the  filing  of 
joint  accounts,  to  set  up  freedom  from  lia- 
bility for  losses  caused  by  the  other's  negli- 
gent management  of  the  estate,  where  the 
exact  relations  of  the  parties  to  the  trust 
fund  is  shown  by  the  record.  Cheever  v. 
Ellis,  11:  296,  108  N.  W.  390,  144  Mich.  477. 

74.  That  an  executor  is  also  a  legatee 
does  not  change  the  rule  that  one  will  not, 
as  between  themselves,  be  charged  with 
losses  caused  by  the  negligent  management 
by  a  coexecutor  of  a  portion  of  the  estate 
turned  over  to  him  to  care  for.  Cheever  v. 
Ellis,  11:  296,  108  N.  W.  290,  144  Mich.  477. 

75.  The  liability  of  a  surviving  adminis- 
trator who  has  charged  and  has  been  allowed 
full  commissions  for  services  of  both  himself 
and  his  deceased  coadministrator,  to  the  es- 
tate of  such  deceased  coadministrator  for 
Buch  of  the  commissions  as  may  be  due  that 
estate  for  services  rendered  by  the  deceased 
coadministrator,  is  personal  only.  Groover 
V.  Ash,  22:  1119,  64  S.  E.  323,  132  Ga.  371. 
Liability  on  bond. 

Venue  of  action  on  administrator's  bond, 
see  Venue,  3. 

Jurisdiction  of  suit  on  bond,  see  Courts, 
15. 

Conclusiveness  on  surety  of  judgment 
against  principal,  see  Judgment,  253. 

Contribution  between  sureties,  see  Prin- 
cipal   AND    SURETT,    71. 

See  also  infra,  131. 

76.  A  surety  on  the  fiduciary  bond  of  a 
personal  representative  is  not  liable  thereon 
for  obligations  of  the  fiduciary  contracted 
after  the  death  of  the  decedent,  although  in 
the  interest  and  for  the  benefit  of  the  estate. 
I'liompson  V.  Mann,  22:  1094,  64  S.  E.  920, 
65  W.  Va.   648.  (Annotated) 

77.  The  bond  of  a  personal  representa- 
tive, taken  by  an  officer  without  authority, 
and  voluntarily  given,  is  valid  as  a  com- 
mon-law obligation,  and  enforceable  as  such, 
in  the  absence  of  a  statutory  prohibition  of 
such  construction.  Central  Bkg.  &  S.  Co. 
V.  United  States  Fidelity  &  G.  Co.  51:  797, 
80  S.  E.  121,  73  W.  Va.  197. 

78.  A  surety  on  an  administrator's  bond 
is  not  liable  thereon  for  the  administrator's 
obligation  to  pay  .money  illegally  borrowed 

•  after  the  death  of  the  decedent,  or  for 
money  tortiously  obtained  by  the  adminis- 
trator, although  the  money  procured  by  the 
administrator  is  used  for  the  benefit  of  the 
estate.  Bank  of  Newton  County  v.  Ameri- 
can Bonding  Co.  50:  1089,  80  S.  E.  1003,  141 
Ga.  326. 

79.  A  mere  decree  directing  an  executoi 
to  pay  funds  of  the  estate  to  himself  as 
executor  of  a  legatee  does  not,  without 
more,  work  a  transference  of  the  funds, 
so  as  to  relieve  the  sureties  on  his  bond 
as  executor  of  the  former  estate  from 
Digest  1-52  L.R.A.(N.S.) 


liability  for  a  devastavit.  Davis  ▼.  Hall, 
40:  1 136,  83  All.  653,  86  Vt.  31. 

(Annotated) 

c.  Assets, 

(See  also   .tame   heading   in   Digest   LJt.A. 

1-70.) 

What  are  assets  justifying  appointment  o£ 
executor  or  administrator,  see  supra, 
I. 

Right  of  administrator  to  recover  accrued 
amount  of  annuities  in  ease  of  deatli  be- 
tween two  quarterly  periods,  se<'  An- 
nuities, 3. 

Duty  of  bank  to  pay  to  administrators 
money  deposited,  see  Banks,  148. 

Right  of  administrator  of  insurance  a^ent 
granting  rebate  on  premium  to  com- 
pel payment  of  unpaid  portion,  see 
Contracts,  580. 

Estoppel  of  administrator  to  assert  title  to 
proceeds  of  insurance  on  decedent's 
life,  see  Estoppel,  91. 

Right  to  insurance  policy,  see  Insurance, 
458,  826,  848. 

Right  to  insurance  money,  see  Insurancb, 
833,  834. 

Attachment  of  funds  of  estate  in  hands  of, 
see  Monet  in  Court,  3. 

See  also  infra,  88. 

80.  Upon  the  appointment  as  adminis- 
trator of  an  estate  of  one  of  its  solvent 
debtors,  the  debt  is  considered  paid,  and 
the  administrator  is  chargeable  with  the 
amount  thereof  in  his  accounts,  regardless 
of  his  subsequent  financial  condition. 
Wachsmuth  v.  Penn  Mut.  L.  Ins.  Co.  26: 
411,   89   N.    E.    787,   241    111.    409. 

(Annotated) 

81.  The  death  between  regular  distribu- 
tion periods,  of  one  to  whom  a  portion  of  the 
income  of  an  estate  is  given  for  life  with 
direction  that  payments  shall  be  made  quar- 
terly or  oftener,  at  the  convenience  of  the 
trustees,  does  not  defeat  the  right  of  his  ad- 
ministrator to  all  of  the  income  which  ac- 

[  crued  since  the  last  distribution;  but  the 
income  should  be  apportioned  as  of  the 
time  of  the  death,  and  that  accruing  prior 
thereto  paid  to  the  administrator,  and  that 
subsequently  to  the  next  taker.  Welch  v. 
Apthorp,  27:  449,  89  N.  E.  432,  203  Mass. 
249.  (Annotated) 

82.  Crops  on  the  land  at  the  time  of  the 
owner's  death  are  assets  for  payment  of 
debts,  under  a  statute  directing  the  executor 
to  sell  for  cash  such  crops,  and  account  for 
the  proceeds  as  assets,  notwithstanding  his 
will  may  imply  that  they  sliall  beloni;  to 
the  devisee;  nothing  short  of  an  express 
direction  will  avoid  the  application  of  the 
statute.  Gordon  v.  Jamas,  i :  461,  39  So. 
18,  86  Miss.  719. 

83.  Dividends  on  stocks  and  bonda,  de- 
clared after  the  death  of  the  owner,  belong 
to  the  specific  devisee  of  the  stocks  and 
bonds,  and  are  not  assets  for  the  payment  of 
the  debts  of  the  estate,  in  the  absence  of 


J 


EXECUTORS  AND    ADMINISTRATORS,  III.  a. 


1271 


•t^tutory  direction  to  the  contrary.     Gordon 
T.  James,  i:  461,  39  So.  18,  86  Miss.  719. 

*54.  The  interest  of  the  grantee  of  a  con- 
tract for  the  sale  of  growing  timber  to  be 
removed  within  a  certain  period  of  years  is 
a  determinable  fee  in  real  estate,  and  will 
pass  to  his  heirs,  and  not  to  his  administra- 
tor. Midyette  v.  Grubbs,  13:  278,  58  S.  E. 
795,  145  N.  C.  85.  (Annotated) 

85.  The  increase  in  value  of  a  home- 
stead set  apart  to  a  widow  qnd  child  above 
the  limit  fixed  by  statute  does  not  consti- 
tute assets  which  will  warrant  further  ad- 
ministration of  decedent's  estate,  where  the 
statute  provides  that  the  homestead  set 
apart  shall  be  the  absolute  property  of  the 
persons  to  whom  it  is  set  apart.  Re  Bed- 
ford, 16:  728,  95  Pac.  518,  34  Utah,  24. 

(Annotated) 

86.  Money  recovered  in  an  action  by  an 
administrator  pursuant  to  a  statute  allow- 
ing recovery  for  the  death  of  a  deceased  by 
wrongful  act  or  omission,  for  the  benefit  of 
the  widow,  children,  or  next  of  kin,  does  not 
constitute  general  assets  to  be  administered, 
which  are  liable  for  decedent's  debts,  but 
Buch  money  belongs  to  the  particular  persons 
for  whose  benefit  the  action  is  given,  against 
which  a  demand  at  law  against  the  adminis- 
trator de  bonis  testatoris  constitutes  no  lien 
or  charge.  Thompson  v.  Mann,  22:  1094,  64 
S.  E.  920,  65  W.  Va.  648. 

///.  Suits  affecting   estate. 

a.  On   behalf  of. 

(Bee  also  same  heading  in  Digest  LJt.A. 
1-10.) 

Survivability  of  action,  see  Abatement 
AND  Revival,  II. 

Review  of  discretion  as  to  amendment  of 
complaint  in  action  on  behalf  of  de- 
cedent's estate,  see  Appeal  and  Ebbob, 
591. 

Prejudicial  error  in  admission  of  evidence 
in  action  by  personal  representative, 
see  Appeal  and  Errob,  1144. 

Right  to  maintain  action  for  death,  see 
Conflict  of  Laws,  99. 

Right  to  sue  executor  or  administrator  on 
his  bond  in  state  other  than  that  of 
his  appointment,  see  Courts,  15. 

Jurisdiction  of  suits  affecting,  see  Courts, 
240-244. 

Right  of  action  for  causing  death,  see 
Death. 

Action  by,  for  negligent  killing,  see  Elec- 
tion OF  Remedies,   10. 

Admissibility,  in  action  by  administrator 
to  recover  purchase  price  of  property, 
of  dying  declarations  of  vendor,  see 
Evidence,   1508. 

Variance  as  to  name  between  pleading  and 
proof  where  plea  of  former  action  pend- 
ing is  set  up,  see  Evidence,  2471. 

Right  of  administrator  of  insolvent  to  set 
aside  conveyance  made  in  fraud  of  cred- 
itors, see  Feaudulent  Conveyances, 
53. 

Digest  1-52  L.R.A.(N.SO 


Effect  of  judgment  on  after-born  children, 
see  Judgment,  222. 

Suing  out  execution  upon  judgment  of  fore- 
closure in  favor  of  intestate,  see  Levt 
AND  Seizure,  28. 

WTien  right  of  action  is  barred,  see  Limi- 
tation OF  Actions,  253,  266,  267,  277. 

Running  of  limitations  against  right  of  ac- 
tion, see  Limitation  of  Actions,  II.  j. 

As  proper  party  to  sue,  see  Parties,  74, 
139-142. 

Parties  defendant,  see  Parties,  II.  a,  4. 

Pleading  in  generally,  see  Pleading,  II.  n. 

Description  of,  as  parties,  see  Pleading, 
178. 

Disregarding  official  title  in  action  which 
administrator  has  right  to  maintain  in 
his  own  name,  see  Pleading,  178. 

SuflBciency  of  complaint  in  action  by  ad- 
ministratrix for  conversion,  see  Plead- 
ing, 379. 

Action  by  personal  representative  to  re- 
cover damages  for  death,  see  Release, 
IL 

Right  of  executrix  of  beneficiary  under  will 
to  maintain  bill  to  review  decree  in  ac- 
tion for  construction,  see  Review,  1. 

Competency  of  witnesses  in  action  by,  see 
Witnesses,  I.  c. 

87.  An  executor  may  prosecute  a  suit  to 
set  aside,  for  failure  of  consideration,  a  deed 
conveying  land  he  is  authorized  by  the  will 
to  sell.  White  v.  Bailey,  23  :  232,  64  S.  E. 
1019,  65  W.  Va.  573. 

88.  One  appointed  by  a  state  court  to 
administer  the  estate  of  one  who  died  in  a 
soldiers'  home,  land  for  which  had  been 
ceded  by  the  state  to  the  Federal  govern- 
ment, may  maintain  an  action  against  the 
ofiicers  of  the  home  to  recover  possession  of 
securities  left  by  decedent.  Divine  v,  Unaka 
Nat.  Bank,  39:  586,  140  S.  W.  747,  125  Tenn. 
98. 

Administrator  de  bonis  non. 

89.  Property  converted  or  altered  by  an 
executor  or  administrator  from  the  state 
or  condition  in  which  the  testate  or  in- 
testate left  it  is  rega-ded  in  law  and  equity 
as  having  been  administered,  and  therefore 
not  recoverable  by  an  administrator  de 
bonis  non,  even  though  such  conversion  or 
alteration  be  an  appropriation  of  the  prop- 
erty by  the  personal  representative  to  his 
own  use,  or  amount  to  a  devastavit.  Brown 
v.  Brown,  47:  995,  78  S.  E.  1040,  72  W.  Va. 
648. 

90.  One  of  two  or  more  coexecutors,  who 
has  given  a  new  bond  and  retained  his  posi- 
tion after  the  resignation  of  the  others,  has 
the  status  of  an  administrator  de  bonis  non 
administratis,  and  can  sue  his  former  as- 
sociate only  for  legally  unadministered  as- 
sets remaining  in  his  hand  ,  or  in  respect  to 
transactions  between  themselves,  but  can- 
not maintain  a  bill  to  surcharge  and  falsify 
ex  parte  settlements  made  by  the  retired 
executor,  nor  charge  him  as  for  a  devas- 
tavit. Brown  v.  Brown,  47:  995,  78  S.  E. 
1040,  72  W.  Va.  648.  (Annotated) 
Foreign  representatives. 

91.  A  judgment  obtained  by  a  domicil- 


1272 


EXECUTORS  AJ*fD    ADMINISTRATORS,  III.  b;    IV.  a,   1. 


iary  executor,  at  the  place  of  his  residence, 
is  an  asset  located  within  tliat  state;  and 
he,  in  his  individual  capacitj',  and  not  an 
ancillary  administrator  appointed  at  the 
debtor's  residence,  in  another  state,  has  tlie 
right  to  sue  in  the  courts  of  the  latter  state, 
to  enforce  the  judgment.  Hare  v.  O'Brien, 
39:  430,  82  Atl.  475,  233  Pa.  330. 

92.  A  statute  declaring  that  foreign  let- 
ters of  administration  shall  not  confer  any 
of  the  powers  or  authority  conferred  by 
domestic  letters  does  not  prevent  a  domi- 
ciliary administrator  who  has  obtained  a 
judgment  in  tlie  state  of  his  residence  from 
maintaining  an  action  on  it  in  the  local 
courts.  Hare  v.  O'Brien,  39:  430,  82  Atl. 
475,  233  Pa.  330.  (Annotated) 

b.  Suits  and  judgments  against. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Survivability  of  action,  see  Abatement  and 
Revival,  II. 

Presumption  and  burden  of  proof  in  action 
against  administrator,  see  Evidence, 
207. 

Evidence  in  action  against  administrator, 
see    Evidence,    845,    846. 

Evidence  in  garnishment  proceeding  against, 
see  Evidence,  1917. 

Garnishment  of,  see  Garnishment,  9,   10. 

Injunction  against  enforcement  of  judg- 
ment, see  Injunction,  279,  280. 

Judgment  against  executors  in  representa- 
tive capacity  where  statute  makes 
them  personally  liable,  see  Judgment, 
31. 

Conclusiveness  of  judgment,  see  Judgment, 
216. 

Survival  to  administrator  of  right  to  ap- 
ply for  new  trial,  see  Judgment,  329. 

Running  of  statute  of  limitations  against, 
see  Limitation  of  Actions,  II.  j. 

Laches  in  bringing  suit  for  enforcement  of 
agreement  by  decedent  to  adopt  child, 
see  Limitation  of  Actions,  55. 

Limitation  of  time  for  action  by  heirs  to 
recover  property  sold  by,  see  Limita- 
tion OF  Actions,  105. 

When  cause  of  action  for  breach  of  cove- 
nant against  encumbrances  arises,  see 
Limitation  of  Actions,  ]92. 

Intervention  of  parties  in  action,  see  Pab- 
TIES,   211. 

Joinder  of  parties  in  action  to  recover  for 
repairs  from  estate  of  life  tenant,  see 
Parties,   143. 

Parties  defendant,  see  Parties,  II.  a,  4. 

Description  of  administrator  as  party,  see 
Pleading,  179. 

Allegations  as  to  ownership  of  sum  loaned 
by  administrator,  see  Pleading,  224. 

Suit  against  administrator  for  specific  per- 
formance of  intestate's  contract,  see 
Specific  Performance,  29. 

Question  for  court  or  jury  in  action  on  as- 
signed claim  against  executor,  see  Tri- 
al,  268. 

Competency  of  witness  in  action  against, 
see  Witnesses,  I.  c. 

Digest  1-52  L.R.A.(N.S.) 


93.  An  action  lies  against  the  executor 
as  such  for  the  probate  of  a  will  charging 
another  with  illegitimacy.  Harris  v.  Nash- 
ville Trust  Co.  49:  897,  '162  S.  W.  584,  128 
Tenn.  573.  (Annotated) 

94.  An  equitable  action  against  the  ad- 
ministrators of  a  decedent  to  enforce  a  parol 
agreement  by  the  decedent  for  the  adoption 
of  a  child  is  not  within  the  prohibition  of 
a  statute  exempting  administrators  from 
suits  for  twelve  months  after  their  appoint- 
ment, on  debts  due  by  the  decedent.  Craw- 
ford v.  Wilson,  44:  773,  78  S.  E.  30,  139  Ga. 
654. 

95.  Presentation  of  a  claim  as  a  creditor 
of  the  estate  is  not  a  condition  to  the  main- 
tenance of  an  action  to  compel  a  convey- 
ance by  the  executor  of  one  holding  a  legal 
title  of  land,  the  title  to  which,  in  equity 
and  good  conscience,  should  be  conveyed  to 
complainant.  Brown  v.  Sebastopol,  19:  178, 
96  Pac.  363,  153  Cal.  704. 

Foreign  representatives. 

Conclusiveness  on  domiciliary  executor  of 
decree  in  action  against  foreign  admin- 
istrator, see  Judgment,  208. 

IV.  Indebtedness;       distribution;       ac- 
counting   and    settlement. 

a.  Debts  and  obligations. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Review  of  facts  upon  appeal  from  allowance 
of  claim  against  decedent's  estate,  see 
Appeal  and  Error,  1004. 

Agreement  by  one  having  claim  against  es- 
tate to  aid  heirs  in  recovering  estate 
in  consideration  of  payment  of  his 
claim,  see  Champerty,  2;  Contracts, 
491. 

Liability  of  estate  to  pay  for  services  by 
adopted  child  of  deceased,  see  Con- 
tracts, 32. 

Presumption  in  suit  a<.;unst  estate  by  foster 
child  for  services,  see  Evidence,  537. 

Right  of  woman  caring  for  brother  during 
last  illness  to  allowance  out  of  estate, 
see  Contracts,  33. 

Liability  of  estate  to  compensate  adult  child 
for  services  to  parent,  see  Contbacts, 
38. 

Liability  of  estate  of  deceased  for  services 
rendered  under  contract  made  by  him, 
»      see  Contracts,  723,  724. 

Allowance  against,  of  alimony  accruing 
between  divorce  and  remarriage  of  de- 
cedent's wife,  see  Courts,  242. 

Use  of  depositions  in  consideration  of  claims 
against  decedent's  estate,  see  Deposi- 
tions, 14. 

Effect  of  death  of  father  on  obligation  to 
support  child  after  divorce,  see  Di- 
vorce AND  Separation,  155-157. 

Allowance  of  claim  against  estate  by  court 
as  prima  facie  evidence  of  debt  and  ita 
due  presentment,  see  Evidence,  502. 

i(l 


EXECUTORS  AND   ADMINISTRATORS,  IV.  a,  2. 


1273 


Evidence  of  admissions  in  action  to  on  force 
note  against  estate,  see  Evide.vce,  12.57. 

Kight  of  husband  to  allowance  for  services 
to  wife  out  of  her  estate,  see  Hvsbaxd 

AND  WiFK,  2. 

Right  of  husband  to  reimbursement  from 
wife's  estate  of  money  expended  for  im- 
provements on  her  property,  see  Hus- 
band AND  Wife,  56. 

Liability  of  estate  of  insane  person  for  cost 
of  maintenance  in  asylum,  see  Incompe- 
tent Persons,  IV. 

Interpleader  to  determine  respective  rights 
of  judgment  creditor  and  attorney 
claiming  lien  on  judgment  for  claim 
against    decedent's    estate,    see    Inter- 

PI.EADEK,  7. 

Leaving  liability  of  estate  for  mortgage  in- 
debtedness unadjudicated,  see  Judg- 
ment, 174. 

Effect  of  judgment  denying  claim  to  share 
in  estate  as  widow  of  decedent  on  claim 
against  estate  for  services,  see  Judg- 
ment, 186. 

Effect  of  judiiment  to  bar  claim  against  es- 
tate for  services,  see  Judgment,  186. 

Liability  of  estate  of  life  tenant  for  repairs, 
see  Life  Tenants,  31. 

Pleading  in  action  by  administrator,  sec 
Pleading,  416. 

Asses.sment  to  personal  representatives  of 
property  omitted  during  lifetime  of  tax- 
payer, see  Taxes,  171,  1172,  178. 

See  also  supra,  86. 

96.  After  the  death  of  one  who  had  as- 
serted a  claim  against  an  estate,  but  wlio 
had  in  his  hands  for  collection  an  amount  in 
notes  owing  to  the  estate  larger  than  the 
amount  of  his  claim,  which  he  had  been  au- 
thorized by  the  court  to  pay  out  of  the 
funds  in  his  hands  when  collected,  the  court 
may  decree  to  his  personal  representatives, 
on  an  answer  filed  for  that  purpose,  the 
amount  of  the  claim  asserted,  there  being 
no  proof  that  decedent  in  his  lifetime  col- 
lected and  retained  the  amount,  nor  any  con- 
tention that  the  claim  is  not  a  just  charge 
against  the  estate.  Brown  v.  Cresap.  g: 
997.  56  S.  E.  603,  61  W.  Va.  315. 

97.  Failure  of  the  trustee  to  pay  an  as- 
sessment for  benefits  to  tlie  trust  propeity 
by  a  public  improvement,  as  required  by 
statute,  will  render  his  estate  liable  there- 
for, although  the  trust  ends  at  his  death,  so 
that  there  is  no  trust  estate  from  wliich 
his  estate  can  be  reimbursed  for  the  amount 
paid.  Bansror  v.  Peirce,  29:  770,  70  Atl.  945, 
106  Me.  527. 

98.  Under  the  New  Jersey  "act  for  the 
relief  of  creditors  against  heirs  and  de- 
visees," which  gives  a  right  of  action  against 
the  heirs  or  devisees  of  a  deceased  debtor, 
the  personal  representative  of  a  deceased 
devisee,  who  is  also  a  devisee  of  such  de- 
visee, is  not  liable,  in  her  representative 
capacity,  for  the  debts  of  the  ancestor, 
where  her  decedent  dies  without  selling  or 
aliening  the  lands  devised;  and,  in  the  ab- 
sence of  a  showing  that  lands  originally 
belonging  to  the  debtor  were  devised  to  her, 
she  is  not  liable  as  devisee.  McCarthy  ▼. 
Digest   1-52  I<.R.A.(N.S.) 


Mullen   (N.  J.  Err.  &  App.)   39:  688,  82  Atl. 
51,  82  N.  J.  L.  379.  (Annotated) 

99.  The  devisee  of  an  unfinished  house- 
who,  upon  refusal  of  the  executor  to  make 
necessary  expenditures  to  put  cut  lumber 
in  place,  and  thereby  protect  the  property, 
does  so  himself,  acts  voluntarily,  and  can- 
not recover  the  expenditure  from  the  estate. 
Re  Hincheon,  36:  303,  116  Pac.  47,  159  Cal. 
755.  (Annotated) 

100.  One  who  complys  with  the  request 
of  a  testator  to  remove  the  remains  of  rela- 
tives to  his  burial  lot,  and  erect  a  monu- 
ment thereon,  cannot  recover  the  expenses 
from  the  estate,  if  there  ;-re  no  directions 
in  the  will  with  respect  to  the  matter.  Re 
Hincheon,  36:  303,  116  Pac.  47,  159  Cal. 
755. 

For  employment  of  attorney. 
See  also  supra,  06;  infra,  119-121,  128,  129, 
131. 

101.  An  estate  is  not  chargeable  with  fees 
to  attorneys  who  appeared  for  one  setting 
up  a  claim  in  hostility  to  the  estate.  Brown 
V.  Cresap,  g:  997,  56  S.  E.  603,  61  W.  Va. 
315. 

102.  Attorneys,  employed  by  an  adminis- 
trator to  assist  him  in  administering  his 
trust,  or  to  prosecute  or  defend  an  action 
for  or  against  him  in  his  official  capacity, 
iiavc  no  claim  they  can  enforce  directly 
against  the  estate.  Brown  v.  Quinton,  25: 
71,  102   Pac.  242,  80  Kan.  44. 

( Annotated ) 

2.  Presentation  and  proof  of  claims. 

(See  also  same  heading  in  Digest  LJt.A. 
^~'^')       .,)•)    [iiinc't   nvA   to    !'•■/. 

Error  in  refusing  to  allow  claim  against  es- 
tate, see  Appeal  and  Error,  1661. 

Presentation  of  claim  against  estate  as  bar 
of  other  remedy,  see  Election  of  Reme- 
dies, 27,  28. 

Effect  on  right  of  holder  of  note  to  recover 
from  surety  of  bar  of  claim  as  against 
estate  of  deceased  cosurety,  see  Limita- 
tion of  Actions,  82. 

Effect  of  failure  of  creditor  to  file  note  exe- 
cuted by  husband  with  wife  as  surety 
against  estate  of  deceased  husband  on 
wife's  liability,  see  Principal  and 
Surety,  31. 

See  also  infra,  139-141. 

103.  In  order  that  the  report  of  a  commis- 
sioner allowing  a  claim  against  an  estate 
shall  be  sustained,  it  is  essential  that  the 
claim  so  allowed  shall  have  been  proven 
before  him  by  competent  testimony.  Brown 
V.  Cresap,  g:  997,  50  S.  E.  603,  61  W.  Va. 
315. 

Time   to  present. 

Effect  of  bar  of  principal  debt  to  bar  fore- 
closure suit  upon  mortgage  securing  it, 
see  Limitation  of  Actions,  88. 

104.  To  collect  against  personal  repre- 
sentatives taxes  which  were  omitted  during 
the  lifetime  of  the  taxpayer,  it  is  not  neces- 
sary to  present  them  as  claims  against 
the  estate,  within  the   statutory  time  for 


1274 


£XECU1X)RS  AND  ADMINISTRATORS,  IV.  a,  3— c,  1. 


presenting  such  claims,  but  they  may  be 
collected  under  statutes  providing  for  the 
assessment  of  property  in  the  hands  of 
personal  representatives.  Bogue  v.  Laugh- 
lin,  40:  927,  136  N.  W.  (iOti,  149  Wis.  271. 

105.  An  equitable  excuse  for  failure  to 
file  a  claim  for  services  against  a  decedent's 
estate  within  the  time  required  by  statute 
is  shown  where  claimant  was  to  within  a 
reasonable  time  before  presenting  her  claim 
prosecuting  before  the  courts  a  claim  to 
share  in  the  estate  as  decedent's  widow. 
Asher  v.  Pegg,  30:  890,  123  N.  W.  739,  140 
Iowa,  541. 

106.  One  performing  labor  on  a  building 
in  process  of  construction,  ^under  contract 
with  the  owner,  loses  his  right  to  com- 
pensation by  failure  to  present  the  claim 
against  the  owner's  estate  within  the  time 
prescribed  by  statute,  and  a  devisee  of  the 
property  cannot  make  the  claim  enforce- 
able after  that  time,  by  assuming  the  obli- 
gation and  presenting  the  claim  against 
the  estate.  Re  Hincheon,  36:  303,  116  Pac. 
47,  169  Cal.  755. 

3.  Payment   and  priority. 

(Bee  also  same  heading  in  Digest  LJt.A. 
1-10.) 

Husband's  right  to  reimbursement  from 
wife's  estate,  see  Husband  and  Wife, 
14. 

PaTment. 

107.  Next  of  kin  cannot  complain  of  the 
payment  of  an  item  by  the  administrator 
without  its  allowance  by  the  court,  where 
it  is  less  in  amount  than  the  balance  due 
the  administrator  for  overpayment  in  the 
distribution  of  the  estate.  Knapp  v.  Jessup, 
7:  617,  109  N.  W.  666,  146  Mich.  348. 

108.  An  executor  who,  under  the  mistaken 
belief  that  the  estate  is  solvent,  pays  a 
claim  in  full,  may,  upon  ascertaining  the 
fact  of  its  insolvency,  recover  the  excess 
over  the  portion  equitably  due  the  claim- 
ant. Woodruff  v.  H.  B.  Claflin  Co.  28:  440, 
91  N.  E.  1103,  198  N.  Y.  470.         (Annotated) 

109.  That  the  executor,  after  paying  a 
claim  against  the  estate  in  full,  carries  on 
decedent's  business  for  a  time  at  a  loss, 
does  not  prevent  his  recovering  the  over- 
payment in  case  the  estate  proves  to  be 
insolvent,  if  it  is  not  made  to  appear  that 
such  conduct  in  any  manner  affected  the, 
respective  rights  or  relations  of  the  execu- 
tor and  claimant.  Woodruff  v.  H.  B.  Claf- 
lin Co.  28:  440,  91  N.  E.  1103,  198  N.  Y. 
470. 

Priority. 

Eififect  of  appointment  by  mortgagee  of 
mortgagor  as  executor  of  estate  on  pri- 
ority of  mortgage,   see  Mobtoage,   37. 

Priority  of  United  States  as  creditor,  see 
United  States,  V. 

Digest  1-52  KR.A.(N.S.) 


4.  Burial  expenttes. 

(See  also  same  heading  in  Digest  LJt.A. 
1-70.) 

Review  on  appeal  of  allowance  for  funeral 
expenses,  see  Appeal  and  Ebror,  566, 
1598. 

Reducing  allowance  for,  on  appeal,  see  Ap- 
peal AND  liRKOR,  1598. 

Liability  for  funeral  expenses  of  married 
woman,  see  Husband  and  Wife,  96-98. 

Liability  of  separate  estate  of  married  wom- 
an for,  see  Husband  and  Wife,  96-98. 

110.  The  recovery  for  services  rendered 
in  the  burial  of  a  decedent  must  be  limited 
to  such  sum  as,  upon  consideration  of  all 
the  circumstances,  including  his  station  in 
life  and  the  value  of  his  estate,  may  be 
found  to  be  proper  and  reasonable.  Golden 
Gate  Undertaking  Co.  v.  Taylor,  52:  1152, 
141  Pac.  922,  168  Cal.  94. 

111.  A  complaint  seeking  compensation 
for  services  rendered  in  conducting  a  funeral 
must  show  that  the  amount  sought  is  a 
reasonable  and  proper  charge  against  the  es- 
tate in  view  of  all  the  circumstances,  so 
far  as  they  could  with  reasonable  diligence 
be  ascertained  at  the  time  of  burial.  Gold- 
en Gate  Undertaking  Co.  v.  Taylor,  5a:  1152, 
141  Pac.  922,  168  Cal.  94. 

112.  An  action  for  services  in  conducting 
a  funeral  of  testator  lies  against  the  ex- 
ecutor in  his  representative  capacity,  where 
the  statute  requires  him  to  pay  such  ex- 
penses as  soon  as  he  receives  funds,  and 
the  remedy  is  not  limited  to  a  suit  against 
the  one  who  contracted  for  the  services,  un- 
less they  were  furnished  on  his  individual 
credit,  nor  to  filing  a  claim  in  the  probate 
court,  although  another  statute  makes  it  a 
preferred  claim  against  the  assets  of  the 
estate.  Golden  Gate  Undertaking  Co.  v. 
Taylor,  52:  1152,  141  Pac.  922,  168  Cal.  94. 

( Annotated ) 

113.  A  relative  who  pays  the  necessary 
and  reasonable  funeral  expenses  of  a  tes- 
tator, in  accordance  with  an  agreement  to 
do  so  in  case  of  the  devise  to  him  of  a 
completed  building,  will  not  be  held  to  be 
a  volunteer,  and  prevented  from  recover- 
ing his  expenditures  from  the  estate  in  case 
the  building  proves  to  be  unfinished,  if  he 
did  not  know  that  such  was  the  fact  when 
the  expenditures  were  made.  Re  Hincheon, 
36:  303,  116  Pac.  47,  159  Cal.  755. 

b.  Instructions   and   control    by   court. 

(See  same  heading  in  Digest  L.R.A.  1—70.)  • 

o.  Distribution;       accounting;      settle' 
tnent;  discharge. 

1.  In  general. 

(See  aho  same  heading  in  Digest  LM.A. 
1-70.) 

Suit  over  administere^l  assets,  see  supra.  89, 
90. 


■.--I 


iU 


EXECUTORS  AND   ADMINISTRATORS,   IV.  c  2,  3. 


1275 


Prosiimption  as  to  service  of  notice  to  up- 
hold decree  of  distribution,  see  Evi- 
dence, 679. 

Proof  of  decedent's  domicil  in  foreign  coun- 
try prerequisite  to  distribution  of  es- 
tate according  to  laws  of  such  country, 
see  Evidence,  128. 

Best  evidence  of  administrator's  accounts, 
see  Evidence,  715. 

C5ollateral  attack  on  decree  of  distribution, 
see  Judgment,  127,  338. 

Conclusiveness  of  judgment  on  petition  for 
distribution  of  estate,  see  Judgment, 
185. 

Set-oflF  against  distributive  share,  see  Set- 
off AND  Counterclaim,  32. 

Distribution  to  next  of  kin  not  within  oper- 
ation of  law  imposing  succession  tax, 
for  purpose  of  escaping  payment,  see 
Taxes,  273. 

Sufficiency  of  title  depending  on  probate  de- 
cree distributing  decedent's  estate,  see 
Vendor  and  Purchaser,  42. 

Time  for  payment  of  legacy,  see  Wills,  III. 
h. 

114.  That  a  statute  against  perpetuities  is 
limited  to  estates  created  by  deed  or  will 
does  not  render  an  attempted  distribution, 
by  the  probate  court,  of  void  remainders,  to 
"heirs"  of  living  life  tenants,  effectual  to 
vest  the  remainders  in  their  children,  as  a 
distribution  of  intestate  estate,  although  no 
appeal  is  taken  therefrom,  since,  the  chil- 
drt'n  not  yet  being  heirs,  there  is  no  such 
definite  ascertainment  of  persons  entitled 
to  take  as  is  requisite  to  the  distribution 
of  intestate  estate.  Gerard  v.  Beecher,  15: 
900,  68  Atl.  438,   80   Conn.   303. 

( Annotated ) 

115.  An  administrator  is  entitled  to  credit 
for  an  item  for  the  construction  and  repair, 
at  reasonable  expense,  of  a  vault  for  the  ro 
mains  of  the  dead,  according  to  the  ex- 
pressed wish  of  intestate.  Knapp  v.  Jessup, 
7:  617,  109  N.  W.  666,  146  Mich.  348. 
Allovrance  to  xriAovr. 

Finality  of  order  as  to  allowance,  see  Ap- 
peal and  Error,  45. 

Allowing  alimony  accruing  between  divorce 
and  remarriage  of  decedent's  wife,  see 
Courts,  242. 

Widow's  right  to  year's  support  imder  ante- 
nuptial agreement,  see  Husband  and 
Wife,  134. 

Inheritance  tax  on  widow's  statutory  year's 
support,  see  Taxes,  312. 

116.  A  widow  is  not  entitled  to  her  year's 
■upport  out  of  a  recovery  for  the  wrongful 
death  of  her  husband,  under  statutes  pro- 
viding for  such  support  out  of  the  crop, 
stock,  and  provisions,  the  balance  to  be 
made  up  from  the  personal  estate  of  the  de- 
ceased, and  requiring  the  distribution  of 
■uch  recoveries  as  of  personal  property  in 
case  of  intestacy.  Broadnax  v.  Broadnax, 
43:  725,  76  S.  E.  216,  160  N.  C.  423. 

(Annotated) 

117.  Under  a  statute  making  life  insur- 
ance distributable  according  to  the  law  of 
distribution,  free  from  the  claims  of  credit- 
ors, it  cannot  be  subjected  to  the  year's 
Digest  1-52  L.R.A.(N.S.) 


support  of  the  widow,  which,  by  statute,  is 
to  be  set  apart  out  of  the  money  on  hand 
I  or  due,  or  other  assets.     Agee  v.  Saunders, 
46:788,  157  S.  W.  64,  127  Tenn.  68O: 

(Annotated) 
Discharge. 
Demurrer  to   bill   to   enjoin   discharge,   see 

Pleading,  599. 
See  also  supra,  55. 

2.  Commissions;  reimbursement. 

(See  also  same  heading  in  Digest  LJt.A. 
1-10.) 

See  also  infra,  132. 

Commissions. 

Action  by  representative  of  deceased  coad- 
ministrator to  recover  his  share  of  com- 
missions from  surviving  administrator, 
see  Pleading,  599. 

Compensation  of  trustee,  see  Trial,  125. 

118.  No  fault  can  be  found  with  the  al- 
lowance of  statutory  fees  to  an  adminis- 
trator, where  he  collected  the  funds  of  the 
estate,  cared  for  the  real  estate,  looked  aft- 
er the  widow,  and  promptly  divided  to  each 
heir  his  share  of  the  estate.  Knapp  v.  Jes- 
sup, 7:  617,  109  N.  W.  666,  146  Mich.  348. 
Reimbursement. 

Reimbursement  of  receivers,  see  Receivers, 

46. 
See  also  supra,  66, 

119.  An  executor  who  in  good  faith  insti- 
tutes proceedings  to  probate  the  will  of 
his  testator  is  entitled  to  credit,  in  his  final 
account  with  the  estate,  for  reasonable  at- 
torneys' fees  paid  by  him  in  such  proceed- 
ings. Re  Hentges,  26:  757,  124  N.  W.  929, 
86  Neb.  75.  (Annotated) 

120.  An  administrator  is  entitled  to  cred- 
it on  his  account  as  such  for  reasonable 
attorneys'  fees  and  expenses  incurred  in 
defending  an  action  brought  while  the  es- 
tate is  in  process  of  settlement  in  the  state 
courts,  against  him  in  the  Federal  courts 
without  just  cause  by  the  heirs  and  dis- 
tributees. Re  Bullion,  31:  350,  128  N,  W. 
32,  87  Neb.  700. 

121.  An  administrator  is  not  entitled  to 
attorneys'  fees  and  funds  expended  in  de- 
fending a  suit  to  which  there  was  in  fact 
no  meritorious  defense,  although  advised  by 
counsel  that  he  had  a  defense,  unless  he 
affirmatively  shows  facts  and  circumstances 
sufficient  to  show  that  he  acted  reasonably 
in  making  the  defense.  Re  Bullion,  3': 
350,  128  N.  W.  32,  87  Neb.  700. 

3.  Retainer ;  deduction  or  set-off. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Set-off  by  or  against  estate,  see  Set-Off  and 
Counterclaim,  I.  e. 

122.  Uncollectable  debts  due  by  a  son 
v/ho  died  in  the  lifetime  of  his  father,  to 
the  latter,  must  be  deducted  in  determining 
the  amount  which  the  son's  children  are  en- 


1276 


EXECUTORS  AND  ADMINISTRATORS,  IV.  c,  4,  V. 


titled  to  take  in  the  father's  estate  as  repre- 
sentatives of  the  son.  Adams  v.  Yancey, 
47:  1026,  62  So.  229,  105  Miss.  233. 

(Annotated) 

123.  The  doctrine  that  where  a  legatee  of 
a  general  legacy  or  share  of  residue,  or  the 
distributee  of  an  intestate's  estate,  is  a  debt- 
or to  the  estate,  he  is  not  entitled  to  receive 
his  legacy  without  bringing  the  debt  into  ac- 
count, does  not  require  the  sole  residuary 
legatee  of  the  debtor  to  bring  a  statute- 
barred  debt  into  account  before  participat- 
ing in  the  estate  of  the  creditor.  Re  Bruce, 
4  B.  R.  C.  713,  [1908]  2  Ch.  682.  Also 
Reported  in  78  L.  J.  Ch.  N.  S.  56,  99  L.  T. 
N.  S.  704.  (Annotated) 

124.  The  doctrine  that  where  a  l^atee  of 
a  general  legacy  or  share  of  residue,  or  the 
distributee  of  an  intestate's  estate,  is  a  debt- 
or to  the  estate,  he  is  not  entitled  to  receive 
his  legacy  without  bringing  the  debt  into  ac- 
count, does  not  require  the  sole  residuary 
legatee  of  the  debtor  to  bring  a  statute- 
barred  debt  into  account  before  participat- 
ing in  the  estate  of  the  creditor.  Re  Bruce, 
4  B.  R.  C.  713,  [1908]  2  Ch.  682.  Also  Re- 
ported in  78  L.  J.  Ch.  N.  S.  56,  99  L.  T. 
N.  S.  704.  (Annotated) 

4.  Effect  of  accounting;  impeachment; 
reopening. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Binding  effect  on  persons  not  parties  of 
decree  settling  executor's  accounts,  see 
Judgment,  239. 

■  125.  A  settlement  of  an  executor's  ac- 
count cannot  be  impeached  in  a  separate 
suit  by  parties  having  notice  of  the  pro- 
ceeding, because  of  fraud  in  an  item  which 
was  a  matter  of  consideration  by  the  pro- 
bate court.  Bradbury  v.  Weils,  16:  240,  115 
N.  W.  880,  138  Iowa,  673.      ' 

126.  Failure  of  executors  to  list  in  their 
account  shares  of  corporate  stock  will  not 
sustain  a  suit  to  open  the  judgment  ap- 
proving their  account,  where  they  claimed 
that  the  failure  was  due  to  the  fact  that 
the  shares  were  of  no  value,  and  there  is 
nothing  to  show  that  any  substantial  right 
of  the  objectors  has  been  sacrificed  by  the 
omission.  Bradbury  v.  Wells,  16:  240,  115 
N.  W.  880,  138  Iowa,  673. 

127.  Omission  from  an  executor's  account 
of  any  reference  to  testator's  real  estate  will 
not  sustain  a  bill  on  benalf  of  legatees  to 
open  the  settlement  of  their  accounts,  if  no 
power  was  given  them  over  the  real  estate 
except  so  far  as  necessary  to  pay  debts. 
Bradbury  v.  Wells,  16:  240,  115  N.  W.  880, 
138  Iowa,  673. 

Surcharging  or  excepting  to  account. 

128.  The  court  cannot  surcharge  an  ex- 
ecutor's account  for  overpayment  of  coun- 
sel fees  without  an  exception  by  some  in- 
terested person  before  it.  Re  Stitzel.  18: 
284,  70  Atl.  749,  221  Pa.  227.        (Annotated) 

129.  The  court  cannot  appoint  an  amicus 
curicB  to  except  to  an  executor's  account 
Digest   1-52  i..R.A.(N.S.) 


for  overpayment  of  counsel  fees,  although 
the  residuary  legatees  are  trustees  of  a 
charitable  trust.  Re  Stitzel,  18:  284,  70 
Atl.    749.   221    Pa.   227. 

130.  An  executor's  account  cannot  be  sur- 
charged without  notice  to  him  and  an  op- 
portunity to  be  heard.  Re  Stitzel,  18:  284, 
70  Atl.  749,  221  Pa.  227. 

131.  Where  an  administrator  has  recov- 
ered and  collected  money  in  an  action  for 
causing  the  death  of  his  decedent,  and,  be- 
fore an  order  has  been  made  making  allow- 
ance to  the  attorney  employed  in  such  ac- 
tion for  fees,  and  appropriating  and  charging 
thereon  a  sufficient  portion  of  sucii  fund  to 
pay  the  same,  such  administrator  has  set- 
tled his  accounts,  and  been  allowed  and 
credited  therein  with  a  sufficient  sum  re- 
tained for  attorneys'  fees  to  cover  the  fees 
of  such  attorney,  but  not  paid  to  him,  a 
court  of  equity,  in  a  suit  by  such  attorney 
against  the  administrator  and  the  surety  on 
his  fiduciary  bond,  brought  for  that  purpose, 
will  not  surcharge  and  falsify  such  settle- 
ment, respecting  the  item  credited  tlierein 
for  attorneys'  fees,  so  as  to  create  a  devasta- 
vit, and  render  the  surety  in  such  fiduciary 
bond  liable  for,  and  give  decree  against  him 
for,  the  amount  of  such  fees.  Tlionipsoti  v. 
Mann,  22:  1094,  64  S.  E.  920,  65  W.  Va.  648. 

132.  'Ihe  representative  of  the  estate  of 
a  deceased  coadministrator  cannot  maintain 
a  caveat  to  the  application  for  discharge  of 
the  surviving  coadministrator,  who  has 
made  final  returns  in  which  full  commis- 
sions have  been  charged  and  allowed  lor 
services  of  both  the  surviving  administrator 
and  his  deceased  coadministrator,  wiiicii 
final  returns  have  been  approved  by  tlie 
ordinary,  on  the  ground  that  the  surviving 
administrator  lias  not  paid  to  tlie  estate  of 
the  deceased  coadministrator  the  proper 
amount  of  such  commissions  for  services 
rendered  by  the  latter.  Groover  v.  Asli,  22: 
1 1 19,  64  S.  E.  323,  132  Ga.  371. 

(Annotated) 

133.  An  administratrix  of  the  surviving 
member  of  an  inactive  partnership  whose 
affairs  are  under  process  of  settlement,  wlio 
permits  representatives  of  the  deceased  part- 
ner to  act  without  bond  under  her  power  of 
attorney  in  the  settlement  of  tlie  partner- 
ship affairs,  for  a  period  of  nine  years 
without  accounting,  when  the  surviving  at- 
torney proves  bankrupt  and  largely  in- 
debted to  the  estate,  will  be  surcharged  with 
the  amount  lost  by  his  defalcation.  Ke 
Skeer,  42:  170,  84  Atl.  787,  236  Pa.  404. 

F.  Creditor's  rights  against  land;  sale 
of  land  for  debts. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Delay  by  foreign  executor  in  petitioning  for 
sale  of  real  estate  to  pay  debts,  see  Lim- 
itation OF  Actions,  59. 


EXECUTOKS  A\D  ADMIMSTKATORS,    VI.— EXEMPTIONS. 


121 


VI.  Foreign  and  ancillary  administra- 
tion. ' 

(See  also   same   heading   in   Di§^t  L.R.A. 
^^    1-70.) 

Action  by  foreign  representative,  see  supra, 
-91,  92. 

Right  of  foreign  administratrix  appointed 
to  maintain  action  for  death,  see  Con- 
flict OF  Laws,  99. 

Effect  of  judgment  in  action  by  administra- 
tor illegally  appointed  to  bar  action 
for  same  wrong  by  other  administrator 
appointed  in  other  state,  see  Judgment, 
216. 

Delay  of  foreign  executor  in  petitioning  for 
sale,  see  Limitation  of  Actions,  59. 

Effect  of  resort  to  ancillary  administration 
to  remove  property  from  operation  of 
succession  tax  imposed  by  law  of  testa- 
tor's domicil,  see  Taxes,  337. 

Ancillary  administration  in  case  of  foreign 
will,  see  Wills,  112. 

134.  That  a  foreign  executor  has  not  se- 
cured an  appointm2iit  from  the  local  courts 
at  the  time  he  files  a  bill  to  foreclose  a  mort- 
gage belonging  to  the  estate  is  not  fatal  to 
the  action,  if  he  secures  such  appointment 
before  trial.  Leahy  v.  Ha  worth,  4:  657,  141 
Fed.  850,  73  C.  C.  A.  84.  (Annotated) 

l;}").  Ihe  nonresident  executor  named  in  a 
foreign  will  has  no  authority  to  nominate 
an  administrator  with  the  will  annexed, 
which  nomination  will  be  recognized  by 
the  court  in  preference  to  the  nomination 
of  persons  having  prior  claims,  under  the 
statute  governing  canes  of  intestacy,  which 
is  held  to  govern  the  appointment  of  an 
administrator  with  the  will  annexed  in 
case  of  a  foreign  will.  Re  Meier,  48;  858, 
132  Pac.  764,  165  Cal.  450.  (Annotated) 

136.  Estoppels  in  favor  of  or  against  the 
administrators  of  a  will  appointed  in  one 
state,  by  judgments  or  by  the  statutes  of 
limitation  of  that  state,  do  not  bind  or  af- 
fect the  administrator  with  th  •  will  annexed, 
or  an  administrator  of  an  intestate,  ap- 
pointed in  another  state,  or  a  claimant 
against  such  representatives.  Wilson  v. 
Hartford  F.  Ins.  Co.  19:  553,  1G4  Fed.  817, 
90  C.  C.  A.  593. 

137.  No  privity  exists  between  the  execu- 
tors of  the  will  of  a  deceased  appointed  in 
one  state  and  an  administrator  with  the 
same  will  annexed  appointed  in  another 
state,  nor  between  the  administrators  of  the 
estate  of  an  intestate  appointed  in  different 
states.  Wilson  v.  Hartford  F.  Ins.  Co.  ig: 
553,  164  Fed.  817,  90  C.  C.  A.  593. 

138.  Administration  in  the  state  of  the 
domicil  of  the  decedent  does  not  govern  the 
administration  of  the  property  of  a  decedent 
in  any  other  state.  Wilson  v.  Hartford  F. 
Ins.  Co.  19:  553,  164  Fed.  817,  90  C.  C.  A. 
593. 

Fx>esentation   and  proof  of  claims. 

139.  A  claim  against  the  estate  of  a  de- 
cedent in  the  hands  of  an  administrator  with 
the  will  annexed  in  one  state  is  not  barred 
because  it  was  not  presented  to  the  domicil- 
Digest   1-52  I<.R.A.(N.S.) 


iary  executors  of  the  same  will  in  another 
state,  and  has  become  barred  in  that  state. 
Wilson  V.  Hartford  F.  Ins.  Co.  19:  553,  164 
Fed.  817,  90  C.  C.  A.  593.  (Annotated) 

140.  A  claim  against  a  decedent's  estate 
should  be  entertained  in  favor  of  a  citizen 
of  another  state  on  the  ground  of  comity, 
although  the  administration  is  only  ancil- 
lary, if  there  is  no  statute  forbidding  it. 
McKee  v.  Dodd,  14:  780,  93  Pac.  854,  152 
Cal.  637. 

141.  One  holding  a  claim  against  a  dece- 
dent's estate,  which  arises  in  the  state 
where  ancillary  administration  is  granted 
is  not  bound  to  seek  the  forum  of  the  prin- 
cipal administration,  but  may  have  his 
claim  settled  in  the  ancillary  proceedings. 
More  V.  Luther,  18:  149,  116  N.  W.  986,  15'i 
Mich.  206. 


EXECUTORY  CONTRACTS^ 

For  sale  of  goods  to  be  delivered  at  future 
day,  see  Contbacts,  531,  532. 

In  fraud  of  creditors,  see  Contbacts,  568. 

To  give  deed,  see  Deeds,  1. 

Vendee  under  executory  contract  as  real 
owner  for  purpose  of  taxation,  see  Tax- 
es, 79. 


EXECUTORY  DEVISE. 


••It 


See  Deeds,  94;   Perpetuities,  12  5   Wills, 
m.  g,  6.  ,,,.: 

♦  »  »  ■  • 

EXECUTORY  TRUSTS. 

See  Trusts,  29,  31. 

♦-»-♦ 

EXEMPLARY  DAMAGES. 

See  Damages,  II. 


EXEMPTIONS. 


I.  In  general,  1—6. 
II.  Property  and  rights  exempt,  7—19. 
a.  In  general,    7—12, 
6.  Tools,    implem&nts,    etc.,    13— 
19. 
III.  Who   may  claim,  20—24. 

From  special  assessments,  see  Public  Im- 
provements, III.  c. 

From  taxation,  see  Taxes,  I.  f. 

From  process  or  arrest,  see  Writ  and  Pro- 
cess, II.  d. 

Statutory  exemption  from  arrest  for  debt, 
see  Arrest,  18,  19. 

Effect  of  discharge  of  bankrupt  on  judgment 
against  exempt  property,  see  Bank- 
BUPTOY,  170. 


1278 


EXEMPTIONS,  I.,  II.  a. 


Civil  action  for  violating  penal  statute  for- 
bidding   assignment    of    claim    outside 

*'  state  to  avoid  exemption  law,  see  Case, 
5. 

Enforcing  law  as  to,  in  other  state,  see  Con- 
flict OF  Laws,  158. 

Equal  protection  as  to,  see  Constitutional 
Law,  182, 

Validity   of  statute  forbidding  assignment 

^  of  claim  to  evade  exemption  laws,  see 
Constitutional  Law,  537. 

Validity  of  contract  to  exempt  from  local 
assessment,  see  Contracts,  452. 

Compelling  courts  of  other  state  to  observe 
exemption  laws,  aee  Courts,  290. 

Duty  of  court  in  settling  property  rights  of 
divorced  parties  to  preserve  statutory 
exemptions,  see  Divorce  and  Separa- 
tion, 129,  131. 

Creditor's  election  of  remedies  where  exempt 
property  is  subject  to  payment  of  par- 
ticular debt,  see  Election  of  Remedies, 
8. 

Presumption  of  intent  to  evade  local  exemp- 
tion laws,  see  Evidence,  225. 

Evidence  that  persons  levying  on  exempt 
property  acted  under  advice  of  counsel, 
see  Evidence,  2005. 

Effect  of  fact  that  proceeds  of  judgment  are 
exempt  from  execution  on  right  to  set 
off  other  judgment  against  it,  see  Ex- 
ecution, 10. 

Application  of  bulk  sales  law  to  exempt 
property,  see  Fraudulent  Con- 
veyances, 13.    ' 

Necessity  of  wife  joining  husband  in  mort- 
gage of  exempt  personalty,  see  Hus- 
band and  Wife,  108. 

Lien  of  judgment  against  bankrupt  on 
exempt  property,  see  Judgment,  272, 
319. 

Mortgage  of,  see  Bankruptcy,  106;  Chat- 
tel Mortgage,  7;  Contracts,  430. 

Construction  of  exemption  statute,  see  Stat- 
utes, 221,  274,  275. 

/.  In  general, 

(See  alRo  »ame  heading  in  Digest  L.R.A. 
1-10.) 

1.  Exemption  privileges  allowed  ly 
statute  are  to  be  liberally  construed,  and 
a  debtor  should  not  be  deprived  thereof 
through  a  technical  following  of  statutes 
pertaining  to  pleading.  Bradley  v.  Earle, 
42:  575,  132  N.  W.  660,  22  N.  D.  139. 

2.  An  order  of  attachment  is  "process" 
within  the  meaning  of  W.  Va.  Code  1899, 
chap.  41,  §§  23,  24,  against  which  the  right 
to  exempt  personal  property  may  be  exer- 
cised. Brown  v.  Beckwith,  i:  778,  51  S.  E. 
977,  58  W.  Va.  140. 

3.  An  affidavit  claiming  an  exemption 
which  establishes  the  claimant's  character 
as  a  female  parent  and  resident  of  the  state, 
sufficiently  specifies  the  character  in  which 
she  claims,  notwithstanding  another  alle- 
gation in  the  affidavit  that  she  "is  entitled 
to  have  and  claims  all  the  above-listed  prop- 
erty claimed  by  her  as  husband  and  parent, 
exempt  from  execution  or  other  process" 
Dieest  1-52  IfcR.A.(N.S.) 


in  the  cause.     Brown  t.  Beckwith,  1:  778,  51 
S.  E.  977,  58  W.  Va.  140. 

4.  Under  the  Iowa  statutes  a  debtor 
claiming  property  levied  on  under  the  exe- 
cution to  be  exempt  need  not  state  th« 
extent  of  his  interest  in  the  property,  from 
whom  acquired,  the  consideration  paid,  and 
the  nature  of  the  interest  claimed  by  the 
execution  creditor.  Sterman  v.  Ilann,  46: 
287,  141  N.W.  934,  160  Iowa,  356. 

5.  Where  a  plaintiff  brings  an  action 
for  wages  due  from  the  defendant,  and  sucli 
wages  are  exempt  to  the  plaintiff,  tlie  de- 
fendant cannot  counterclaim  a  debt  due 
from  the  plaintiff  to  him,  although  the 
counterclaim  comes  within  the  letter  of  the 
statute.  Bradley  v.  Earle,  42:  575,  132  N. 
W.  660,  22  N.  D.  139.  (Annotated) 
Selection  of  exempt  property. 

6.  The  provision  of  the  bankruptcy  act 
empowering  courts  to  set  off  to  bankrupts 
their  exemptions  does  not  prevent  the  en- 
forcement of  a  mortgage  of  such  exemp- 
tions, which  confers  upon  the  mortgagee  the 
right  to  select  them.  Re  National  Grocery 
Co.  30:  982,  181  Fed.  33,  104  C.  C.  A.  47. 

II.  Property  and  rights  exempt. 

a.  In  general, 

(See  also   same   heading  in  Digest   L.R.A. 
1-10.) 

What  property  subject  to  garnishment,  set 

Garnishment,  I.  c. 
Of  homestead,   see  Execution,   13;    Homb- 

stead. 
What   property   subject   to   levy,   see   Levy 

and  Seizure,  I. 
Right  to  set  up  m  pleading  that  judgment 

sought  to  be  obtained  would  be  exempt 

from  execution,  see  Pleading,  504. 

7.  A  piano  comes  within  the  term  of 
"household  and  kitchen  furniture,"  as  the 
same  is  used  in  the  Oklahoma  personalty 
exemption  statute  (Okla.  Comp.  Laws  1909, 
§  3346,  Session  Laws  1905,  p.  255).  Cook 
v.  Fuller,  44;  76,  130  Pac.  140,  35  Okla.  339. 

(Annotated) 
Pensions  and  proceeds. 

8.  A  homestead  purchased  with  pension 
money  belonging  to  a  man,  and,  by  his 
direction,  conveyed  to  his  wife,  is  not  sub- 
ject to  execution  upon  a  judgment  against 
her,  although  it  is  based  on  a  claim  an- 
tedating the  acquisition  of  the  homestead, 
if  the  purchase  was  made  without  the  in- 
tention of  making  her  the  real  owner  of  the 
property.  Ratliff  v.  Elwell,  20:  223,  119  N. 
W.  740,  141  Iowa,  312. 

Insnrance  on  life. 

Exemption  of  insurance   under  bankruptcy 
act,  see  Bankruptcy,  37,  38. 

9.  Money  which  has  reached  the  bene- 
ficiary is  not  exempted  from  legal  process 
by  a  statute  providing  that  the  benefit  to  be 
paid  by  any  benefit  society  shall  not  be  lia- 
ble to  attachment  by  trustee,  garnishee,  or 
other  process,  and  shall  not  be  seized  by 
legal  or  equitable  process  or  any  operati<m 


EXEMPTIONS,  II.  b;  III. 


1279 


of  law,  to  pay  any  debt  or  liability  of  a  cer- 
tificate holder,  or  of  a  beneficiary  named  in 
the  certificate.  Recor  v.  Recor,  5:  472,  106 
N.  W.  82,  142  Mich.  479.  (Annotated) 

10.  Statutory  exemption  from  executioji 
against  the  beneficiary,  of  the  proceeds  of 
a  certificate  or  policy  in  a  mutual  benefit 
society,  does  not  extend  to  property  pur- 
chased therewith.  J.  S.  Merrell  Drug  Co. 
V.  Dixon,  24:  1018,  115  S.  W.  179,  131  Ky. 
212.  (Annotated) 
Wages. 

See  also  supra,  5;  infra,  24. 

11.  A  statute  permitting  the  issuance  of 
an  execution  against  wages  applies  to  judg- 
ments existing  at  the  time  of  its  passage, 
since  it  aR"ects  only  the  remedy  of  the  judg- 
ment creditor,  and  not  the  vested  rights  of 
the  debtor.  Laird  v.  Carton,  25:  189,  89 
N.  E.  822,  196  N.  Y.  169.  (Annotated) 

12.  Monthly  advances  made  a  salesman 
who  works  on  a  commission  basis,  and  with 
whom  a  settlement  is  made  at  the  end  of  the 
year,  when  he  is  paid  the  balance  of  com- 
missions due  him,  or  debited  with  overpay- 
ments, are  wages,  earnings,  or  salary  wiihin 
the  meaning  of  those  terms  in  a  statute 
permitting  execution  to  issue  against  them. 
Laird  v.  Carton,  85:  189,  89  N.  E,  822,  190 
N.  Y.  169. 

b.  Tools,    implements,   etc. 

(See  also   same   heading  in  Digest  L.E.A. 
1-10.) 

13.  A  cab,  at  the  time  in  the  possession 
of  and  being  used  to  gain  a  livelihood  by  its 
driver,  is  protected  from  seizure  by  a 
statute  exempting  "implements  of  trade." 
Lavell  V.  Richings,  4  B.  R.  C.  475,  [1906] 
1  K.  B.  480.  Also  Reported  in  75  L.  J.  K. 
B.  N.  S.  287,  54  Week.  Rep.  394,  94  L.  T. 
N.  S.  515,  22  Times  L.  R.  316.     (Annotated) 

14.  The  fact  that  a  man's  sole  "imple- 
ment of  trade"  is  of  greater  value  than  the 
sum  to  the  extent  of  which  tools  and  imple- 
ments of  trade  are  exempted  by  statute 
from  seizure  will  not  exclude  it  from  the 
protection  of  the  statute.  Lavell  v.  Rich- 
ings, 4  B.  R.  C.  475,  [1906]  1  K.  B.  480. 
Also  Reported  in  75  L.  J.  K.  B.  N.  S.  287, 
54  Week.  Rep.  394,  94  L.  T.  N.  S.  615,  22 
Times  L.  R.  316. 

Horses;  automobiles. 

15.  A  statutory  exemption  of  work  horses 
from  execution  will  not  include  high-bred 
horses  used  by  a  man  in  driving  to  and 
from  business,  and  in  taking  his  family 
riding.  Tishomingo  Sav.  Inst.  v.  Young, 
3:  693,  40  So.  9,  87  Miss.  473.       (Annotated) 

16.  An  automobile  is  a  vehicle  within  a 
statute  exempting  to  certain  classes  of  per- 
sons a  team  and  wagon  or  other  vehicle  used 
in  earning  a  living.  Lames  v,  Armstrong, 
49:  691,  144  N.  W.  1,  162  Iowa,  327. 

( Annotated ) 

17.  A  general  agent  for  life  insurance 
who  requires  the  use  of  a  vehicle  in  visit- 
ing the  local  agencies  in  his  territory  is 
within  the  purview  of  a  statute  exempting, 
in  the  case  of  "a  phvsician,  public  officer. 
Digest   1-52  L.R.aI(N.S.) 


farmer,  teamster,  or  other  laborer,"  the 
team  and  wagon  or  other  vehicle  "by  the 
use  of  which  he  habitually  earns  his  living." 
Lames  v.  Armstrong,  49:691,  144  N.  W.  1, 
162  Iowa,  327. 
Safe. 

18.  A  safe  used  by  a  physician  in  his 
business  for  the  keeping  of  his  instruments 
and  books  and  medicines  is  exempt  from 
execution.  Sterman  v.  Hann,  46:287,  141 
N.  W.  934,   160  Iowa,  356.        (Annotated) 

19.  That  a  physician  owns  only  a  half 
interest  in  a  safe  of  which  he  is  in  pos- 
session, which  he  uses  in  his  business, 
does  not  prevent  his  claiming  it  to  be 
exempt  from  execution.  Sterman  v.  Uann, 
46:  287,  141  N.  W.  934,  160  Iowa,  356. 

///.  Who  may  claim. 

(See  also   same  heading  t«  Digest  L.R.A. 
l-HO.J 

20.  Where  a  decree  of  divorce  and  for  the 
payment  of  alimony  is  granted  the  wife,  the 
derelict  husband  cannot  defeat  the  collec- 
tion of  alimony  by  remarrying  and  claim- 
ing the  benefit  of  the  exemption  law.  Win- 
ter V.  Winter,  50:  697,  145  N.  W.  709,  95 
Neb.   335.  (Annotated) 

21.  One  who  has  mortgaged  his  statutory 
exemptions  from  execution  cannot,  by  fail- 
ing to  claim  them  in  bankruptcy  proceed- 
ings, effect  a  waiver  of  the  claim,  which 
will  prevent  their  enforcement  by  the  mort- 
gagee. Re  National  Grocery  Co.  30:  982,  181 
Fed.  33,  104  C.  C.  A.  47. 
Nonresident;  ixrho  is. 

22.  One  who  has  acquired,  under  the  pro- 
visions of  W.  Va.  Code  1899,  chap.  41,  the 
right  to  have  personal  property  exempted 
from  forced  sale,  does  not  forfeit  it  on  the 
ground  of  nonresidence  until  he  begins  to 
remove  his  person  from  his  place  of  abode 
within  the  state  to  another  state  or  coun- 
try with  intent  to  fix  his  residence  in  such 
other  state  or  country,  although  he  may  in- 
tend to  leave  the  state  permanently,  and  has 
made  complete  preparation  to  do  so,  and 
has  delivered  his  personal  property  and  ef- 
fects for  shipment  to  a  point  outside  the 
state.  Brown  v.  Beckwith,  i:  778,  51  S.  E. 
977,  58  W.  Va.  140.  (Annotated) 

23.  A  debtor  who  has  sold  all  his  nonex- 
empt  property,  and  started  to  remove  to 
another  state,  with  the  intention  of  estab- 
lishing a  residence  there,  is  a  "resident  of 
the  state"  within  the  meaning  of  the  exemp- 
tion law,  and  entitled  to  claim  his  exemp- 
tions, where,  while  yet  within  the  state,  an 
attachment  is  levied  on  his  horse.  Grime- 
stad  v.  Lofgren,  17:  ggo,  117  N.  W.  515,  106 
Minn.  286. 

24.  A  laborer  who  removes  from  a  state 
in  whose  courts  -e  has  instituted  proceed- 
ings to  enjoin  his  local  creditor  from  pro- 
ceeding in  the  courts  of  another  state  to 
subject  his  wages  to  the  payment  of  a  debt, 
at  any  time  before  they  are  applicable  there- 
to, loses  the  benefit  of  the  general  exemption 
laws  of  ll.c  state  where  the  suit  was  brought. 


1280 


EXEMPT   LIST— EXPELTAisClES. 


Wierse   v.    Thomas,    15:  1008,    59   S.   E.    58, 
145  N.  C.  261. 


EXEMPT  LIST. 


Power  of  civil  service  conunission  to  extend, 
see  Civil  Service,  1. 


EXHIBITION. 

In  jjeneral,  see  Amusements,  13. 

Refusal  to  serve  negro  at  food  show,  see 
Civil  Rights,  1. 

Of  human  anatomy,  see  Constitutional 
Law,  417;  Courts,  158;  Municipal 
Corporations,  145. 

Damages  for  breach  of  contract  to  exhibit 
machine  at  exposition,  see  Damages, 
687. 

Of  person  to  jury,  see  Discovery  and  In- 
spection, II.;   Evidence,  879-881. 

In  highway,  see  Highways,  216-218. 

1.  A  student  association  of  a  university, 
which  erects  through  one  of  its  directors 
a  stand  upon  the  athletic  field  to  accom- 
modate patrons  of  athletic  exhibitions  given 
thereon,  is  liable  for  injuries  to  a  patron 
through  the  collapse  of  the  stand  due  to  its 
negligent  construction,  although  it  could  not 
have  been  constructed  without  consent  of  the 
authorities  of  the  university,  and  the  direct- 
or who  supervised  its  erection  was  employed 
and  paid  by  the  university  as  adviser  of  the 
athletic  policy  of  the  association.  Scott  v. 
University  of  Mich.  Athletic  Asso.  17:  234, 
116  N.  W.  624,  152  Mich.  684. 

2.  The  mere  employment,  by  persons 
about  to  give  an  athletic  exhibition  to  which 
the  public  is  invited  upon  payment  of  an  ad- 
mission fee,  of  competent  persons  to  build 
and  inspect  a  stand  for  the  accommodation 
of  patrons,  will  not  absolve  them  from  li 
ability  for  injuries  to  a  patron  from  the 
collapse  of  the  stand  through  a  patent  de- 
fect discoverable  by  the  exercise  of  proper 
care.  Scott  v.  University  of  Mich.  Athletic 
Asso.  17:  234,  116  N.  W.  624,  152  Mich.  684. 


OJ 


\ 


EXHIBITS. 


As   part   of   record   on   appeal,   see  Appeal 

AND  Error,   193,  194. 
Effect  of  omission  of,  from  record  on  appeal, 

see  Appe.\l  and  Error,  242. 
With  pleading,  see  Pleading,  I.  h. 
Taking  of,  into  jury  room,  see  Appeal  and 

Error,  1476,  1477,  1504;  Trial,  13-15. 


EX  MALEFICIO. 


Trust  ecD  maleficio,  see  Limitation  of  Ac- 
tions, 251 ;  Trusts,  58,  59. 
Bigeit  1-52  L.R.A.(N.S.) 


EXORBITANT  RATES. .,   .^^,  ^^ 

Charge  of  exacting,  see  Libel  and  Slander, 
50. 


EX  PARTE  ORDER. 

For    appointment   of    receiver,    see    Rbxieiv- 
ebs,  6. 


EXPECTANCIES. 


Effect  of  discharge  in  bankruptcy  of  one 
who  had  assigned  expectancy  to  secure 
loan  on  lien  of  assignee,  see  Bank- 
ruptcy,  139. 

Rights  of  heirs  and  distributees  in  dece- 
dents' estates  generally,  see  Descbnt 
AND  Distribution. 

VaUdity  of  conveyance  of. 

Validity  of  assignment  of,  to  secure  loan 
with  exorbitant  interest,  see  Con- 
tracts, 609. 

Warranty  of  title  by  heirs  conveying  their 
interest,  see  Covenants  and  Condi- 
tions, 21. 

Power  of  feme  covert  to  convey  expectant 
interest  in  father's  estate,  see  Hus- 
band AND  Wife,  32. 

1.  A  quitclaim  deed  to  real  estate 
owned  by  the  maternal  grandmother  of  the- 
grantor  (the  mother  of  the  latter  being 
deceased),  who  expects  to  inherit  from  her 
a  share  thereof,  conveys  nothing,  and  does 
not  preclude  the  grantor  from  subsequent- 
ly claiming  the  share  devised  by  the  grand- 
mother to  the  deceased  mother  of  the  grant- 
or. Mosier  v.  Carter,  35:  1182,  114  Pac. 
226,   84   Kan.   361.  (Annotated) 

2.  An  attempted  conveyance  by  heirs 
apparent,  of  their  interest  in  the  property 
of  the  ancestor,  even  with  the  tatter's  con- 
sent, is  void.  Spears  v.  Spaw,  25:  436,  118 
S.  W.  275,  —  Ky.  — .  (Annotated) 

3.  An  expectant  interest  in  an  estate 
may  be  assigned  in  equity  notwithstanding 
the  statutes  provide  such  expectancy  is  not 
to  be  deemed  an  interest  of  any  kind,  and 
that  a  mere  possibility  not  coupled  with 
an  interest  cannot  be  transferred.  Bridge 
V.  Kedon,  43:  404,  126  Pac.  149,  163  Cal.  493; 

4.  An  assignment  of  .an  expectancy  need 
not  be  to  one  interested  in  the  estate,  but 
is  valid  if  made  to  an  entire  stranger. 
Bridge  v.  Kedon,  43:  404,  126  Pac.  149,  163 
Cal.  493. 

5.  Approval  of  the  ancestor  is  not  neces- 
sary to  uphold  an  assignment  by  an  heir 
of   his   expectancy.      Bridge    v.    Kedon,   43: 

404,   126  Pac.   149,   163  Cal.  493. 

nt 


EXPECTATION  OF  LIFE— EXPLOSIONS  AND  EXPLOSIVES,  II.  a.        1281 


EXPECTATION  OF  LIFE. 

Evidence  as  to,  see  Evidence,  851-854. 

♦  •» 

EXPEXDITUBES. 

Estoppel  by  permitting,  see  Estoppel,  III. 
g,  2,  b. 


EXPERIMENTS. 


Heview  of  discretion  as  to,  on  appeal,  see 

Appeal  and  Ebroe,  605. 
Evidence  of,  see  Evidence,  XI.  y. 


EXPERTS. 


Expert  accountants,  see  Accountants. 

Error  in  excluding  from  court  room,  see 
Appeal  and  Ekbor,  1484. 

Statute  giving  courts  power  to  appoint  ex- 
perts, see  Constitutional  Law,  618. 

Expert  evidence  in  general,  see  Evidence, 
VII. 

Weight  of  expert  testimony,  see  Evidence, 
2055-2057. 

Fees  of,  generally,  see  Witnesses,  211-213. 

Payment  of  fees  of,  on  discontinuing  emi- 
nent domain  proceedings,  see  Eminent 
Domain,  150. 


EXPIRATION. 

Of  copyright,  see  Coptbight,  25. 


EXPLANATION. 


Parol  evidence  in,  see  Evidence,  VI.  e. 
Evidence  in,  generally,  see  Evidence,  XI.  1. 


EXPLOSIONS  AND  EXPLOSIVES. 

/•  Regulation  of  explosives. 
II.  Injuries  from  accidental  explosions, 
1-4. 
a.  In  general,  1,  2. 
T*.  Illegal  or  negligent  storage  or 
Tceeping,  3,   4. 

c.  Illegal    or    negligent    consign- 

ment. 

d.  Illegal  or  negligent  use. 

As  to  blasting,  see  Blasting. 

As  burglar's  tool  within  meaning  of  stat- 
ute, see  Burglary,  1. 

Lien  for  explosives,  see  Mechanics'  Liens, 
36. 

Storage  of  explosive  near  residence  as  nui- 
sance, see  Nuisances,  51,  62. 

Digest  1-52  L.R.A.(N.S.) 


Question  for  jury  as  to  nature  of  explosive 
substance,  see  Trial,  624. 

/.  Regulation   of  explosives. 

(See  same  heading  i/n  Digest  L.R.A.  1-70.) 

II.  Injuries  from  accidental  explosions. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-tO.) 

Explosion  of  fire  works,  see  Carriers,  235; 
Municipal  Corporations,  349,  350; 
Trial,  573. 

Of  emery  wheels,  see  Evidence,  1157. 

Of  stove  pipe  enamel,  see  Evidence,  1773, 
2116,  2117,  2441. 

Of  gas,  see  Gas,  59,  60;  Tbial,  574,  575. 

Of  controller  of  street  car,  see  Master  and 
Servant,  382. 

Of  peanut  roaster,  see  Municipal  Corpora- 
tions, 328. 

Of  bottle  of  carbonated  beverage,  see  Trial, 
125,  126. 

Of  bottle  of  aerated  water,  see  Trial,  541. 

Jurisdiction  of  action  to  recover  for  injury 
done  by,  see  Courts,  37. 

Judicial  notice  as  to,  see  Evidence,  28. 

Presumption  of  servant's  knowledge  of  dan- 
ger of,  see  Evidence,  202. 

Presumption  and  burden  of  proof  as  to 
cause  of  explosion,  see  Evidence,  323, 
326. 

Presumption  that  explosion  was  the  cause 
of  death,  see  Evidence,  329. 

Presumption  and  burden  of  proof  as  to  neg- 
ligence, see  Evidence,  433,  462,  463. 

Hypothetical  questions  as  to  cause  of  ex- 
plosion, see  Evidence,  1064. 

Evidence  on  question  of  negligence  causing 
explosion,  see  Evidence,  1765. 

Evidence  of  wantonness  in  leaving  bomb  in 
alley,  see  Evidence,  1527. 

Sufficiency  of  evidence  in  action  for  death 
caused  by,  see  Evidence,  2125,  2126. 

Variance  between  pleading  and  proof  in  ac- 
tion for  injuries  by  explosion  of  gas, 
see  Evidence,  2484. 

Aa  cause  of  loss  insured  against,  see  Insur- 
ance, 685-687. 

Assumption  of  risk  from,  see  Master  and 
Servant,  65,  511,  516,  563-565. 

Duty  to  warn  servant  of  danger  of  explo- 
sion, see  Master  and  Servant,  229- 
232. 

Injury  to  servant  by  explosion,  see  Master 
AND  Servant,  210,  271,  276,  277,  408, 
434,  676,  865;  Pleading,  301;  Trial, 
472,  529. 

Contributory  negligence  of  servant  as  to, 
explosives,  see  Master  and  Sebvant, 
640. 

Municipal  liability  for  injury  by  bl-sting, 
see  Municipal  Corporations,  345-348. 

Liability  of  seller,  manufacturer  or  other 
third  person,  see  Negligence,  IV.  2. 

Liability  for  injury  to  trespassing  child  by, 
see  Negligence,  143-153. 
81 


1282 


EXPLOSIONS  AND  EXPLOSIVES,  II.  b— EXPRESS  COMPANIES. 


Contributory  negligence  of  one  injured  by, 
see  Negligence,  206-208,  225,  22(5, 
250. 

Imputing  to  owner  of  building  injured  by 
explosion  negligence  of  tenant,  see  Neg- 
I.IOENCE,  273. 

Duplicity  in  pleading  in  action  to  recover 
for  injury,  see  Pleading,  161. 

Proximate  cause  of  injury  by,  see  Proxi- 
mate Cause,  II.  d. 

Proximate  cause  of  injury  from  fright 
caused  by,  see  Proximate  Cause,  160. 

Sufficiency  Of  evidence  to  take  question  of 
negligence  to  jury,  see  Trial,  125-127. 

Question  for  jury  as  to,  see  Trial,  139, 
573-575,  600. 

Injury  to  street  car  passengers  by  explo- 
sion, see  Trial,  139. 

Venue  of  action  for  damages  from  explo- 
sion of  paint  drier,  see  Venue,  36. 

1.  The  law  implies  a  duty  not  to  place 
or  cause  to  remain  in  a  public  highway  a 
bomb  capable  of  inflicting  injury  by  being 
exploded.  Wells  v.  Gallagher,  3:  759,  39  So. 
747,  144  Ala.  363.  (Annotated) 

2.  That  a  boy  carried  a  bomb  found  in 
a  public  liighway  to  an  adjacent  yard  and 
there  exploded  it,  to  his  injury,  will  not 
relieve  from  liability  the  one  responsible  for 
the  bomb  being  where  it  was.  Wells  v.  Gal- 
lagher, 3:  759,  39  So.  747,  144  Ala.  363. 

b.  Illegal  or  negligent  storage  or  Jceep- 
ing. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

3.  That  one  who  maintains  a  large 
quantity  of  dynamite  in  a  shed  near  a 
highway  and  railroad  track,  without  notice 
to  the  public,  is  guilty  of  maintaining  a  pub- 
lic nuisance,  does  not  render  him  liable  for 
injury  to  a  person  who,  without  right,  uses 
the  building  as  a  target  for  gun  practice, 
thereby  causing  an  explosion,  where  there 

'  is  nothing  to  cause  the  owner  to  believe 
that  the  building  will  be  used  for  such  pur- 
poses, since  he  is  not  bound  to  foresee  that 
it  will  be  so  used  and  that  injury  will  re- 
sult; and  he  therefore  owes  no  duty  to  no- 

'  tify  such  trespasser  of  the  danger.  McGe- 
hee  V.  Norfolk  &  S.  R.  Co.  24:  119,  60  S.  E. 
912,  147  N.  C.  142. 

4.  Violation  by  one  who  has  licensed 
jthers  to  use  his  shop  for  shelter  and 
warmth,  and  to  build  a  fire  in  a  stove  there- 
in, of  a  statute  requiring  ga&jlene  to  be 
kept  in  a  properly  labeled  can,  does  not 
render  him  liable  in  damages  to  one  of  tlie 
licensees  through  explosion  of  the  stove  be- 
cause of  an  attempt  to  use  fluid  from  an 
unlabeled  can  to  start  the  fire  on  the  sup- 
position that  it  was  kerosene,  if  there  was 
no  custom  or  practice  in  the  locality  ot 
starting  fire  with  oil,  by  reason  of  which 
the  property  owner  should  have  anticipated 
an  attempt  to  use  fluid  from  the  can  to 
start  a  fire.  Molin  v.  Wisconsin  Land  & 
Lumber  Co.  48:  876,  143  N.  W.  624.  177 
Mich.  524;  (Annotated) 
3ige8t  1-52  L.R.A.v/i.S.) 


c.  Illegal  or  negligent  consignment. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 

d.  Illegal  or  negligent  use. 
(See  same  heading  in  Digest  L.R.A,  1-10.) 


EXPLOSIVES. 

See  Explosions  and  Explosives. 


EXPORTATION. 


Of  Philippine  coin,  validity  of  statute  as  to, 
see  Constitutional  Law,  521. 


♦  >» 


EXPOSITION. 

See  Exhibition. 


♦-•-• 

EX  POST  FACTO  LA\V^S. 

See  Constitutional  Law,  I.  b,  1. 


^»» 


EXPOSURE. 

Of  passenger  to  cold,  see  Carriers,  207-209. 
Question  for  jury  as  to  liability  for  per- 
sonal injuries  due  to,  see  Trial,  547. 


EX!PRESS  COMPANIES. 

Prematurity  of  suit  to  enjoin  rights  of,  see 
Action  or  Suit,  18. 

Prejudicial  error  in  admission  of  evidence  in 
action  against,  see  Appeal  and  Error. 
1148. 

As  carriers  generally,  see  Carriers. 

Contract  of  railroad  company  with,  see  Car- 
riers, 8. 

Injury  to  passenger  by  negligence  of,  in 
leaving  truck  on  depot  platform,  see 
Carriers,  613. 

As  agent  of  owner  of  goods  in  delivering 
them  to  carrier,  see  Carriers,  747. 

Duty  to  make  free  delivery,  see  Carriers, 
766,  991. 

Rule  as  to  time  of  delivery  of  packages  of 
money  to,  for  transportation,  see  Car- 
riers, 777. 

Requiring  acceptance  of  all  money  tendered 
for  transportation  at  specified  time  and 
place,  see  Courts,  261. 

Termination  of  liability  as  carrier,  see  Car- 
riers, 837-839,  851-854. 
I  Liability   as   warehouseman,   see   Carriers, 
790,  837-839,  851-853. 


EXPRESSMEN— EXTERNAL,  VIOLENT,  AND  ACCIDENTAL  MEANS.      1283 


Refusal  to  deliver  package  without  payment 
of  charges,  see  Carriers,  830. 

Necessity  of  notice  to  consignee  of  arrival 
of  goods,   see   Carriers,  850-854. 

Shipment  of  animal  by  express,  see  Car- 
riers,   802. 

Governmental  regulation  of,  see  Carriers, 
990,   991. 

Discrimination  by,  see  Carriers,  1058. 

Contract  giving  exclusive  facilities  on  rail- 
road, see  Monopoly  and  Combina- 
tions, 70. 

Regulation  of,  as  affecting  commerce,  see 
Commerce,  32-34. 

Transportation  of  intoxicating  liquors  by, 
see  Carriers,  778;  Commerce,  119  j 
Criminal  Law,  1. 

Delivery  of  liquor  sent  C.  0.  D.  as  unlawful 
sale  by  agent,  see  Intoxicating  Liq- 
uors, 119. 

Delivery  of  liquor  to,  as  a  sale,  see  Intoxi- 
cating Liquors,  167,  177,  178. 

Right  of  carrier  held  liable  for  death  of 
passenger  to  contribution  from  express 
company  primarily  liable  therefor,  see 
Contribution  and  Indemnity,  17. 

Burden  of  proving  negligence  of,  see  Evi- 
dence, 389. 

Evidence  admissible  in  action  to  hold  in- 
demnitor liable  for  loss  through  rob- 
bery of  messenger,  see  Evidence,  1758. 

Injunction  against  intentionally  omitting 
name  of  company  from  business  direc- 
tory of  express  companies,  see  Injunc- 
tion, 8,  126. 

License  of,  see  License,  58-60. 

Mandamus  to  compel  acceptance  and  trans- 
portation of  goods  by,  see  Mandamus, 
62. 

Liability  for  criminal  act  of  agent,  see 
Master  and  Servant,  893. 

Right  of  consignee  to  sue  for  money  in- 
trusted to,  for  transportation,  see  Par- 
ties, 32. 

Forbidding  establishment  of,  in  competition 
with  United  States  mail,  see  Partib^s, 
108;     PoSTOFFICE,    5. 

Taxation  of,  see  Taxes,  12,  46,  175,  189. 
State  taxation  of  gross   earnings  of   inter- 
state express  company,  see  Commerce, 

145. 
Reasonableness    of    express    rates    fixed    by 

legislature,  see  Carriers,  1033. 
Judicial  power  to  review  reasonableness  of 

rates  fixed  by  statute,  see  Courts,  134. 
Presumption  as  to  validity  of  statute  fixing 

express  rates,  see  Evidence,  85. 
Injunction    against    enforcement    of    rates 

fixed  by  statute,  see  Injunction,  353. 
Findings  of  referee  in  liearing  as  to  validity 

of  rates,  see  Reference,  17. 
See  also  Expressmen  ;  Express  Messenger. 


EXPRESSMEN. 


EXPRESS   MESSENGER. 

As  passenger,  see  Carriers,  86,  87. 

Duty  of  express  company  to  see  that  car  in 
which  messenger  is  carried  by  railroad 
company  is  safe,  see  Master  and  Serv- 
ant, 310. 

Notice  to,  that  contractor  under  which  he  is 
carried  absolves  railroad  company  from 
liability  for  injuring  him,  see  Notice, 
19. 

Release  by,  of  express  company  from  lia- 
bility for  injury  caused  by  negligence 
of  carrier,  see  Release,  9. 


EXPRESS  TRUST. 

See  Tbusts,  I.  b. 


EXPULSION. 


From  association,  see  Associations,  II.  b. 

From  benevolent  society,  see  Benevolent 
Societies,  IV.;  Courts,  177,  178. 

Of  passenger  or  trespasser,  see  Carriers,  IL 
h. 

From  religious  society,  see  Courts,  192^ 
193;  Mandamus,  12;  Rexigious  Socie- 
ties, VI.  b. 

Of  pupil,  see  Mandamus,  90,  91,  126; 
Schools,  I.  d. 


EXTENDED  INSURANCE. 

See  Insurance,  167-174. 


EXTENSION  OF  TIME. 

For  payment  of  note,  see  Bills  and  Noitcs, 
VI.  b. 

As  consideration  for  promise,  see  Con- 
tracts, 122. 

For  redemption  from  mortgage  foreclosure, 
see  Contracts,  156. 

Discharge  of  surety  by,  see  Principal  and 
Surety,  43-56. 


EXTERNAL  OR  VISIBLE  MARK. 

On  insured,  see  Insurance,  VI.  b,  3,  d. 


EXTERNAL,    VIOLENT,    AND    ACCI- 
DENTAL  MEANS. 


Grant  of  special  privilege  to,  at  depots,  see  I  Injury  or  death  of  insured  by,  see  Insub- 

Carriers,  1007-1013.  ance,  VI.  b,  3,  b. 

Digest  1-52  L.R.A.(N.S.) 


1284 


EXTINGUISHMENT— EXTRADITION,  I. 


EXTINGUISHMENT. 

Of  contract,  see  Contracts,  V. 
Of    covenant,    see    Covenants    and    Con- 
ditions, V. 

Of   pledge,   sec   PLEa)QB  AND  COLLATEliAL   Se- 
CUBITY,   11-14. 


EXTORTION. 


By  abuse  of  process,  see  Abuse  of  Pbocess, 

1,  2. 

Recovery   back  of  money  obtained  by,   see 

Assumpsit,  48. 
Compelling   by  threats  payment  of  money 

justly  due  as  extortion,  see  Attobneys, 

24. 
Disbarment  of  attorney  for,  see  Attobneys, 

24. 
Indictment  for,  see  Indictment,  etc.  28. 
Repeated  posting  on  debtor's  door  of  cards 

requesting  him  to  call  and  pay  debt  as, 

see  Maucious  Pbosecution,  24. 

'  1.  The  injury  threatened  must  be  un- 
lawful to  constitute  extortion,  irrespective 
of  whether  the  threat  was  made  for  the  pur- 
pose of  wrongfully  obtaining  money,  where 
the  statute  provides  that  the  threat  must 
be  one  "to  do  an  unlawful  injury  to  the  per- 
son or  property  of  the  individual  threat- 
ened," etc.  People  v.  Schmitz,  15:  717,  94 
Pac.  419,  7  Cal.  App.  369.  (Annotated) 

2.  A  threatened  injury  is  not  unlawful 
iunless  it  is  of  such  a  character  that,  if  com- 
mitted, it  would  constitute  an  actionable 
wrong,  or,  if  merely  threatened,  could  be 
enjoined.  People  v.  Schmitz,  15:  717,  94 
Pac.  419,  7  Cal.  App.  369. 


EXTRA   AIXOVSTANCE. 

Of  costs,  see  Costs  and  Fbes,  21. 


EXTRA  COMPENSATION. 

To  employee,  see  Master  and  Servant,  80- 

82. 
See  also  Extra  Work. 


EXTRADITION. 


/.  International,   1—4:. 
II.  Interstate,    5—13. 

Right  to  require  bail  from  fugitive  from 
justice,  see  Bail  and  Recognizance, 
'5. 

Right  of  fugitive  to  release  on  bail,  see 
Bail  and  Recognizance,  7,  8. 

Digest  1-52  L,R.A.(N.S.) 


/.  International. 

(See   also   .tame   heading   in  Digest   L,R,A. 
1-10.) 


Persons  subject  to. 

Power   of   courts   as   to   extradition    treaty, 
see  Courts,  79. 

1.  There  is  no  principle  of  interna- 
tional law  by  which  citizens  of  the  country 
of  the  asylum  are  excepted  out  of  an  extra- 
dition convention  for  the  surrender  of 
"persons,"  wliere  no  such  exception  was 
made  in  the  treaty  itself.  Charlton  v. 
Kelly,  46:  397,  33  Sup.  Ct.  Rep.  945,  229 
U.  S.  447,  57  L.  ed.  1274. 

2.  Citizens  of  the  country  of  asylum 
are  "persons"  within  the  meaning  of  the 
extradition  treaty  of  1868  witli  Italy,  by 
which  the  two  governments  mutually  agree 
to  deliver  up  all  persons  who,  having  been 
convicted  of  or  charged  with  any  of  the 
crimes  specified,  committed  within  the  juris- 
diction of  one  of  the  contracting  parties, 
shall  seek  an  asylum  in  the  other.  Charl- 
ton V.  Kelly,  46:  397,  33  Sup.  Ct.  Rep.  945, 
229  U.  S.  447,  57  L.  ed.  1274. 
Proceedings. 

3.  The  requirement  in  the  supplemen- 
tal extradition  treaty  of  1884  with  Italy, 
following  provisions  for  arrest  upon  the 
exhibition  of  a  certificate  from  the  Secre- 
tary of  State,  attesting  that  a  requisition 
has  been  made,  and  for  the  remand  o  the 
accused  to  prison  until  a  formal  demand 
for  extradition  shall  be  made  and' supported 
by  evidence,  that  if  "the  requisition,  to- 
gether with  the  documents  above  provided 
for,"  shall  not  be  made  within  forty  days 
from  the  date  of  arrest,  the  accused  shall 
be  set  at  liberty,  cannot  be  deemed  to  mean 
that  "formal  demand"  must  be  proved  in 
the  preliminary  proceedings  within  forty 
days  after  arrest,  in  view  of  the  provisions 
of  U.  S.  Rev.  Stat.  §  5270,  applicable  to  a 
foreign  extradition  proceeding,  authorizing 
the  committing  magistrate,  upon  com- 
plaint charging  one  of  the  crimes  named 
in  an  extradition  treaty,  to  issue  his  war- 
rant of  arrest,  to  hear  the  evidence  of 
criminality,  to  commit  the  accused  to  jail, 
and  to  certify  his  conclusions  to  the  Secre- 
tary of  State,  who,  under  §§  5272,  5273, 
may  issue  his  warrant  for  the  surrender 
of  the  accused  upon  requisition  of  the 
proper  authorities.  Charlton  v.  Kelly,  46: 
397,  33  Sup.  Ct.  Rep.  945,  229  U.  S.  447, 
57   L.   ed.    1274. 

4.  The  right  to  introduce  evidence  of 
the  insanity  of  the  accused  in  proceedings 
for  the  extradition,  conformably  with  the 
treaty  with  Italy  of  1868  (15  Stat,  at  L. 
629),  of  a  fugitive  from  justice,  was  not 
given  by  the  act  of  1882  (22  Stat,  at  L. 
215,  chap.  378),  §  3,  providing  the  means, 
in  foreign  extradition  proceedings,  for  ob- 
taining the  testimony  and  for  the  payment 
of  the  fees  of  witnesses  whose  evidence  is 
material  to  the  defense,  and  without  which 
the  accused  cannot  safely  go  to  trial,  since 
Congress  cannot  be  deemed  to  have  intended 


EXTRADITION,   II.— EXTRA  WORK. 


1285' 


by  this  statute  to  depart  from  the  pro- 
vision of  the  first  article  of  the  treaty 
which  requires  that  a  surrender  shall  be 
made  upon  such  evidence  of  criminality  aa, 
according  to  the  laws  of  the  place  where 
the  fugitive  shall  be  found,  would  justify 
his  arrest  and  commitment  if  the  crime 
had  been  there  committed.  Charlton  v. 
Kelly,  46:  397,  33  Sup.  Ct.  Rep.  045,  229 
U.  S.  447,  57  L.  ed.  1274.  (Annotated) 

//.  Interstate. 

(See  also   same   heading   in  Digest  L.R.A. 
1-10.) 

Evidence  in  extradition  case,  see  Evidence, 
784,  817. 

5.  A  legal  charge  of  crime,  made  in  the 
state  from  which  a  criminal  has  fled,  is 
necessary  to  the  issuance  of  a  warrant  for 
his  arrest  in  the  state  in  which  he  is  found. 
State  ex  rel.  Grass  v.  White,  2:  563,  82  Pac. 
907,  40  Wash.  560. 

6.  The  executive  of  a  state  in  which  an 
alleged  fugitive  from  justice  is  found  is 
bound  to  deliver  him  to  the  executive  of  the 
state  where  the  offense  was  committed  only 
when  he  is  legally  charged  with  crime  within 
the  demanding  state.  Re  Waterman,  11: 
424,  89  Pac.  291,  29  Nev.  288. 

7.  In  interstate  extradition,  the  prison- 
ar  is  only  held  under  the  extradition  proc- 
ess until  such  time  as  he  reaches  the  juris- 
diction of  the  demanding  state,  and  is  thence- 
forth lield  under  the  process  issued  out  of 
the  courts  of  that  state;  and  it  necessarily 
follows  that  there  is  no  longer  a  Federal 
question  involved  in  his  detention.  Re  Moy- 
er,  12:  227,  85  Pac.  897,  12  Idaho,  250. 

8.  The  governor  of  one  state  cannot, 
upon  requisition  of  the  governor  of  another 
state,  take  from  prison  where  he  is  con- 
fined under  conviction  for  violating  the  laws 
of  the  former  state,  a  person  whom  the  lat- 
ter governor  demands  as  a  fugitive  from  the 
justice  of  his  state.  Re  Opinion  of  Jus- 
lices,  24:  799,  89  N.  E.  174,  201  Mass.  609. 

(Annotated) 
VC^ho  are  fugitives. 

9.  To  be  a  fugitive  from  justice  under 
the  laws  of  the  United  States,  it  is  not 
necessary  that  the  person  charged  with 
having  left  the  state  in  which  the  crime 
was  alleged  to  have  been  committed  should 
have  done  so  for  the  purpose  of  avoiding 
prosecution,  anticipated  or  begun,  but  sim- 
ply that,  having  committed  a  crime  within 
the  state,  he  leaves  such  state,  and  when 
he  is  sought  to  be  subjected  to  its  criminal 
process  to  answer  for  his  offense,  he  is 
found  within  the  territory  of  another  state. 
Ex  parte  Williams,  51:  668,  136  Pac.  597,  10 
Okla.  Crim.  Rep.  344. 

10.  A  convicted  prisoner  who  has  a 
parole  and  goes  into  another  state  is  a 
fugitive  from  justice  within  the  provisions 
of  the  United  States  Consiitution  and  laws, 
and  as  such  is  subject  to  extradition  if  his 
parole  is  revoked.  Ex  parte  Williams, 
Digest  1-52  ]1B.A.(N.S.) 


51:668,   136  Pac.  597,  10  Okla.  Crim.  Rep. 
344.  (Annotated) 

11.  One  not  in  arrears  under  his  agree- 
ment to  support  his  wife,  from  whom  he 
has  separated  at  the  time  he  leaves  the 
state,  is  not  subject  to  extradition  as  a 
fugitive  from  justice  for  failure  to  support 
lier,  in  case  he  subsequently  becomes  delin- 
quent in  his  payments.  Ex  parte  Kuhns, 
50:  507,  137  Pac.  83,  36  Nev.  487. 
Requisition. 

Impeaching  requisition  by  aflQdavits  <rf 
strangers,  see  Evidence,  784. 

Revieiv  of  proceedings. 

Review  on  habeas  corpus,  see  Habeas  Coe- 
pas,  10,  23,  57-66,  69;  Judgment,  93. 

12.  The  legality  of  the  revocation  of  a 
parole  in  a  foreign  state  is  a  question  for 
the  courts  of  that  state,  for  they  alone  have 
the  right  to  construe  the  Constitution  and 
laws  of  that  state.  Ex  parte  Williams, 
51:668,  136  Pac.  597,  10  Okla.  Crim.  Rep. 
344. 

Immunity  from  prosecution  for  dif- 
ferent offense. 

13.  A  person  charged  in  any  state  with 
treason,  felony,  or  other  crime,  who  shall 
flee  from  justice  and  be  found  in  another 
state,  and  who,  on  demand  of  the  executive 
authority  of  the  state  from  which  he  fled, 
shall  be  delivered  up  and  removed  to  the 
state  having  jurisdiction  of  the  crime,  may 
there  be  prosecuted  for  crimes  other  than 
the  one  specified  in  the  demand  for  his  de- 
livery, without  first  giving  him  a  reason- 
able opportunity  to  return  to  the  state 
which  surrendered  him.  Re  Flack,  47:807, 
129  Pac.  541,  88  Kan.  616.  (Annotated) 
Rights    of    persons    illegally    brought 

xvithin  jurisdiction. 
Habeas   corpus   to   release   one   held    under 
extradition    proceedings,     see    Habeas 
Corpus,  23,  24,  66. 


EXTRA  FARE. 

From  passenger,  see  Cabeieks,  II.  m,  4. 

♦•» 

EXTRAORDINARY  COSTS. 

See  Costs,  21. 

♦»» 


EXTRATERRITORIAL    EFFECT. 

Of  statute,  see  Statutes,  213. 


EXTRA  "(VORK. 

Recovery  for,  see  Contracts,  622-625. 


128U 


EXTRINSIC  DOCUMENT— FALLING  OBJECTS. 


;>;:     uEXTBIXSIC  DOCUMENT. 

Incorporating  into  contract,  see  Contbacts, 

I.  f.  v 

Incorporating  into  will,  see  Wills,  ]7. 


EYESIGHT. 

Contributory  negligence  of  person  whose 
eyesight  is  defective,  see  Highways, 
370,  371.  „ 


.V6i 


F 


FACTORIES. 

Injunction  to  restrain  operation  of,  see  Ap- 
peal AND  Ebkob,  110. 

Fire  escapes  on,  see  Buildings,  36, 

Limiting  hours  of  women's  labor  in,  see 
Constitutional  Law,  310,  311. 

Measure  of  damages  for  nuisance  resulting 
from,  see  Damages,  506. 

Assumption  of  risk  by  minor  employed  in, 
see  Master  and  Servant,  II.  b,  7. 

Employment  in  contravention  of  factory 
act  as  evidence  of  negligence,  see  Mas- 
ter AND  Servant,  161-163. 


riii 


FACTORS. 


Application  of  deposit  by,  see  Banks,  73- 
76. 

Measure  of  damages  for  delay  in  message 
i;    from  factor  to  principal,  see  Damages, 

.-c     251. 

flight  of  commission  merchant  to  whom 
property  is  consigned  for  sale  to  main- 
tain action  for  injury  thereto,  see  Pas- 
ties, 29. 

Conversion  by,  see  Teoveb,  20. 

1.  One  who  negotiates  a  sale  of  an- 
other's property  without  having  either  ac- 
tual or  constructive  possession  of  it  is  a 
broker  as  distinguished  from  a  factor.  J. 
M.  Robinson,  Norton  &  Co.  v.  Corsicana 
Cotton  Factory,  8:  474,  99  S.  W.  305,  124 
Ky.  435. 

2.  An  agreement  by  which  goods  are 
consigned  for  sale  to  persons  who  are  to 
make  advances  on  the  consignment  and  hold 
the  goods  as  collateral  against  the  advances 
does  not  render  the  consignor  a  debtor  for 
the  amount  of  the  advances  before  sale  of 
the  goods,  but  only  for  the  balance  unpaid 
from  the  proceeds  of  the  sale.  Re  Joseph 
P.  Murphy  Co.  5:  1147,  63  Atl.  745,  214  Pa. 
258. 

3.  A  factor  who  has  made  advances  on 
the  consignment  can  claim  against  the  as- 
signed estate  of.  tlie  consignor,  not  for  the 
full  amount  of  the  advances,  but  only  for 
the  amount  unpaid  after  applying  the  pro- 
ceeds of  the  sale  in  satisfaction  of  the  ad- 
vancement. Re  Joseph  P.  Murphy  Co.  5: 
1147,  63  Atl.  745,  214  Pa.  258.      (Annotated) 

4.  The  loss  falls  upon  one  who,  upon 
purchasing  goods  through  a  known  broker, 
pays  him  therefor  prior  to  delivery,  and  not 
upon  the  owner,  who  ships  the  goods  to  his 
luigest   1-52  I..R.A.(N.S.) 


own  order  and  draws  upon  the  broker  for 
the  price  with  bills  of  lading  attached,  the 
draft  remaining  unpaid  because  the  broker 
becomes  insolvent.  J.  M.  Robinson,  Norton 
&  Co.  v.  Corsicana  Cotton  Factoiy,  8:  474, 
99  S.  W.  305,  124  Ky.  435.         (Annotated) 


FACTS. 

Review    of,    on    appeal,    see    Appeal    and 

Error,  VII.  1. 
Review  of,  on  certiorari,  see  Certiobabi,  8, 

9. 


FAILURE  TO  COMPLAIN. 

Effect  of,  on  assumption  of  risk,  see  Mas- 
ter AND  Servant,  576. 


FAIR  COMMENT. 


On  literary  work  as  libel,  see  Libel  and 
Slander,  21. 

Of  officer  or  candidate,  see  Libel  and  Slan- 
der, II.  e. 


FAIRS. 

Liability  of  fair  association  for  injury  to 

participant  in  race,  see  Amusements, 

16;  Horse  Race. 
Liability  for   injury  resulting   from   street 

fairs,  see  Highways,  216-218. 
Contributory  negligence  of   person   injured 

at  street  fair,  see  Highways,  349. 
See  also  Amuseiments,  11. 


FAITH  AND  CREDIT. 

To  be  given  judgment  of  other   state,   see 
Judgment,  IV.  b. 


FALLING  OBJECTS. 

Injury  by  fall  of  object  from  card  stand, 

see  Amusements,  5,  6. 
Injurv  to  passenger  bv,  see  Carriers,  204, 

205,   215,   216,   332,   333,   615. 


FALSE  ANSWERS;   FALSE   LMPKISONMENT,   L 


1287 


Presumption  of  negligence  from,  see  Evi- 
dence, 420,  421,  438,  456-458. 

Evidence  in  action  for  injury  by,  see  Evi- 
dence, 1872. 

Injury  to  person  in  street  by,  see  High- 
ways, 208,  209,  223,  224,  269,  27.0,  291- 
295,   310,   314-316,   382,   385. 

Injury  to  servant  by,  see  Masteb  and  Sebv- 
ANT,  317-319. 

Liability  for  independent  contractor's  neg- 
ligence in  permitting  fall,  see  Master 
AND  Servant,  1002,  1010. 

Requiring  roof  over  sidewalk  while  build- 
ing is  being  erected,  to  protect  pedes- 
trians from,  see  Municipal  Corpora- 
tions, 47. 

Injury  in  attempting  to  avoid,  see  Negli- 
gence, 18;   Trial,  173. 

Injury  by  fall  of  ballast  from  basket  used 
by  electric  light  employees,  see  Negli- 
gence, 35. 

Injury  to  child  by  fall  of  derrick,  see  Negli- 
gence, 131. 

Injury  to  children  by  fall  of  chimney,  see 
Negligence,  133. 

Injury  to  child  by  fall  of  material  from 
railroad  car,  see  Negligence,  137. 

Injury  by  falling  walls  or  buildings,  see 
Negligence,  96. 

Injury  by  fall  of  lumber  pile,  see  Negli- 
gence, 157-159,  228. 

Proximate  cause  of  injury  by,  see  Proxi- 
mate Cause,  VI. 


FALSE    ANSAVERS. 

In    application    for    insurance,    see    Insur- 
ance, III.  e. 


FALSE  IMPRISONMENT. 

/.  In  general,   1—13. 
II.  Who   liable,    14—39. 

a.  In  general,  14—25. 

b.  Officer,   26-39. 

III.  Defenses;  justification,    40—47. 
IV.  In  civil  case. 

Error  in  instruction  defining  probable  cause 
for  arrest,  see  Appeal  and  Error,  1318. 

Effect  on  judgment  for,  of  discharge  in 
bankruptcy,   see   Bankruptcy,   164. 

Assignment  of  right  of  action  for,  see  Con- 
tracts, 449. 

Punitive  damages  for,  see  Damages,  59,  60, 
82. 

Measure  of  damages  for,  see  Damages,  338, 
339. 

Recovery  for  mental  suffering  because  of, 
see  Damages,  620. 

Burden  of  proof  in  action  for,  see  Evidence, 
672,  673. 

Evidence  in  action  for,  see  Evidence,  2018. 

EfTect  of  discharge  as  conclusive  proof  of 
want  of  good  faith,  see  Evidence,  2081. 

Wife's  right  to  sue  husband  for,  see  Hus- 
band and  WlBE,  206. 

Digest  1-52  L.R.A.(N.S.) 


Of  insane  person,  guardian's  right  of  ac- 
tion for,  see  Incompetent  Persons,  36. 

When  statute  of  limitations  begins  to  run, 
see  Limitation  ob-  Actions,  182. 

Setting  aside  judgment  as  to  one  only  of 
two  defendants,   see  New  Trial,  25. 

Sufficiency  of  pleading,  see  Pleading,   380. 

Joint  demurrer  to  complaint  for,  see  Plead- 
ing, 569. 

Demurrer  to  petition  in  action  for,  not 
brought  within  period  limited  by  stat- 
ute, see  Pleading,  617. 

Question  for  jury  whether  imprisonment 
was  voluntary  or  by  force,  see  Trial, 
626. 

Instruction  in  action  for,  see  Trial,  871, 
1027. 

See  also  Malicious  Prosecution,  25. 

/.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  Any  deprivation  of  the  liberty  of  an- 
other without  bis  consent,  whether  by  vio- 
lence, threats,  or  otherwise,  constitutes  an 
imprisonment  within  the  meaning  of  the 
law  relating  to  false  imprisonment.  Bern- 
heimer  v.  Becker,  3:  221,  62  Atl.  526,  102 
Md.  250. 

2.  The  essential  thing  to  constitute  an 
imprisonment  is  constraint  of  the  person, 
which  may  be  by  threats  as  well  as  by 
actual  force.  Hebrew  v.  Pulis  (N.  J.  Err. 
&  App.)  7:  580,  64  Atl.  121,  73  N.  J.  L.  621. 

3.  Words  are  sufficient  to  constitute  an 
imprisonment,  if  they  impose  a  restraint  up- 
on a  person,  and  he  is  actually  restrained. 
Martin  v.  Houck,  7:  576,  54  S.  E.  291,  141 
N.  C.   317.  (Annotated) 

4.  False  imprisonment  may  be  effected 
if  one  IS  ordered  to  do  or  not  to  do  a  cer- 
tain thing,  to  move  or  not  to  move  against 
his  own  free  will,  and  force  is  offered,  or 
there  is  reasonable  ground  to  apprehend 
that  coercive  measures  will  be  used  if  he 
does  not  yield.  Martin  v.  Houck,  7:  576,  54 
S.  E.  291,  141  N.  C.  317. 

5.  A  formal  declaration  of  arrest  is  not 
requisite  to  constitute  an  imprisonment,  if 
the  person  imprisoned  understands  that  he 
is  in  the  power  of  the  one  making  the  ar- 
rest, and  submits  in  consequence  thereof. 
Martin  v.  Houck,  7:  576,  54  S.  E.  291,  141 
N.   C.  317. 

6.  An  arrest  and  imprisonment  under 
valid  process  furnish  no  cause  of  action  for 
false  imprisonment.  Gordon  v.  West,  13: 
549,  59  S.  E.  232,  129  Ga.  532. 

7.  The  arrest  without  warrant,  by  one 
clothed  with  the  authority  of  a  police  offi- 
cer, of  a  person  found  by  him  in  a  public 
place  in  a  state  of  intoxication  and  acting 
in  a  disorderly  manner,  is  not  a  false  ar- 
rest; nor  is  his  detention  for  the  action  of 
the  proper  police  authorities  a  false  im- 
prisonment. Erie  R.  Co.  v.  Reicherd,  20: 
295,  166  Fed.  247,  92  C.  C.  A.  590. 


1288 


FALSE  IMPRISONMENT,  II.  a. 


8.  If  an  arrest  is  lawful,  the  motive  for 
it  ia  inimateiial.  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Hinsdell,  12:  94,  90  Pac.  800,  76  Kan. 
74. 

9.  The  discharge  of  one  guilty  of  fel- 
ony and  lawmlly  arrested  therefor  by  an 
officer  witliout  a  warrant,  before  his  deten- 
tion has  become  unlawful  through  an  un- 
reasonable delay  to  procure  the  warrant  or 
to  present  him  before  a  magistrate,  does  not 
make  tlu'  original  arrest  unlawful.  Atchi- 
son, T.  &  S.  F.  R.  Co.  V.  Hinsdell,  12:  94, 
90  Pac.  800,  76  Kan.  74. 

10.  The  detention  of  one  arrested  for  fel- 
ony, without  a  warrant,  from  the  after- 
noon of  Saturday  until  the  following  morn- 
ing, cannot  be  said,  as  matter  of  law,  to 
have  been  for  an  unreasonable  time.  Atch- 
ison, T.  &  S.  F.  R.  Co.  V.  Hinsdell,  12:  94, 
90  Pac.  800,  76  Kan.  74. 

11.  That  the  agent  of  a  carrier  in  caus- 
ing the  arrest  of  one  who  .had  committed 
grand  larceny  by  fraudulently  taking  goods 
of  which  he  was  the  general  owner  from  the 
possession  of  the  carrier,  which  had  a  lien 
thereon  for  freight  charges,  described  the 
offense  as  running  awa}'  without  paying  his 
bill,  and  said  that  all  the  carrier  wanted 
was  its  money,  does  not  establish  the  right 
of  the  accused,  who  was  discharged  without 
being  brought  before  a  magistrate,  to  re- 
cover in  an  action  for  false  imprisonment 
against  the  carrier.  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Hinsdell,  12:  94,  90  Pac.  800,  76  Kan. 
74. 

12.  The  wrongful  detention  of  a  woman 
in  an  office  for  three  quarters  of  an  hour 
by  closing  the  door  and  telling  her  that  she 
cannot  leave  until  she  gives  up  a  deed  in 
her  possession,  and  by  threatening  to  call 
the  sherifl',  constitutes  a  false  imprison- 
ment. Kroeger  v.  Passmore,  14:  988,  93  Pac. 
80.5,  aC  ilont.  504. 

13.  A  person  who  enters  upon  grounds 
lawfully  in  possession  of  boys  giving  a  free 
])icnic,  notice  having  been  given  in  advance 
that  later  in  the  day  a  baseball  game  would 
be  played,  to  which  admission  would  be 
charged,  and  who,  when  the  game  was  about 
to  commence,  refused  to  pay  the  fee  or  go 
out,  and  was  thereupon  taken  by  the  arm 
by  a  citizen, — one  of  the  assembled  patrons,  . 
— acting  in  behalf  of  the  boys,  though  with- 
out special  authority,  and  led  in  the  direc- 
tion of  the  gate,  always  with  the  privilege 
of  paying  and  staying,  and  the  alternative 
of  not  paying  and  going,  and  who,  before 
reaching  the  gate,  did  pay,  and  thereafter 
stay,  is  thereby  afforded,  as  against  such 
citizen,  no  ground  for  an  action  in  damages 
for  false  imprisonment,  since  the  restraint 
imposed  was  not  total,  and  was  imposed 
merely  as  a  means  of  his  ejectment  until 
he  elected  to  pay  the  lawfully  charged  fee, 
and  was  therefore  the  result  of  his  volun- 
tary persistence  in  an  imlawful  act.  Cros- 
■ett  V.  Campbell,  20:  967,  48  So.  141,  122 
La.  659.  (Annotated) 
Digest  1-52  L.R.A.(N.S.) 


IJ.  Who  liable. 

a.  In  general. 

(See  also   same   heading   in   Digest   L.R.A. 
1-10.) 

Liability  of  carrier  for  arrest  of  passenger, 

see  Carriers,  II.  f. 
Municipality,  see  Mukicipal  Corfobations, 

423,  424. 
Partner,  see  Partnership,  33,  34. 
Instructions,  see  Trial,  871,  1027. 

14.  One  may  be  liable  for  an  arrest  if  it 
is  made  at  his  instance  and  with  his  knowl- 
edge and  consent,  although  he  does  not  ex- 
pressly direct  the  oflicers  to  make  it.  Mc- 
Aleer  v.  Good,  10:  303,  65  Atl.  934,  216  Pa. 
473. 

15.  Persons  who  go  to  another's  house 
and  induce  him  to  accompany  them  to  the 
police  office,  where  ^  he  is  searched  and  im- 
prisoned, may  be  held  liable  as  parties  to 
the  arrest.  McAleer  v.  Good,  10:  303,  65 
Atl.    934,    216    Pa.    473. 

Liability  of  complainaiit. 

16.  Plaintiff  in  a  civil  suit,  who  procures 
the  arrest  of  defendant  on  mesne  process, 
is  a  trespasser  ah  initio  where,  by  direction 
of  his  attorney,  the  officer  removes  defend- 
ant to  another  county  for  safe-keeping,  con- 
trary to  the  provisions  of  the  statute.  Gib- 
son V.  Holmes,  4:  451,  62  Atl.  11,  78  Vt.  110. 

17.  Merely  making  and  verifying  a  com- 
plaint before  a  justice  of  the  peace,  which 
does  not  charge  a  public  off(!nse  or  justify 
an  arrest,  will  not  render  one  liable  for 
false  imprisonment  if  an  arrest  is  made  un- 
der a  warrant  issued  thereon.  Smith  v. 
Clark,  26:  953,  106  Pac.  653,  37   Utah,   116. 

18.  One  who  merely  makes  and  verifies  a 
complaint  upon  which  an  arrest  is  made 
cannot  be  required  to  justify  the  arrest  in 
an  action  for  false  imprisonment,  although 
the  complaint  states  no  offense,  and  there- 
fore does  not  justify  the  arrest,  if  there  is 
nothing  to  show  tuat  he  participated  in  the 
issuance  or  execution  of  the  warrant  or  di- 
rected the  arrest  or  imprisonment.  Smith 
V.  Clark,  26:  953,  106  Pac.  653,  37  Utah, 
116. 

Principal  or  master. 

Liability  of  carrier  for  arrest  of  passenger, 

see  Carriers,  150-158. 
Measure  of  damages,  see  Damage:s,  339. 
Liability  of  innkeeper,  see  Innkeepers,  30. 
See  also  supra,  11. 

19.  The  general  authority  of  a  manager 
of  a  department  in  a  store  does  not  extend 
to  detaining  and  searching  a  person  upon 
suspicion  of  having  stolen  the  employer'* 
goods,  so  as  to  render  the  employer  liable 
therefor.  Bernheimer  v.  Becker,  3:  221,  62 
Atl.  526,  102  Md.  250. 

20.  A  corporation  is  liable  for  the  act  of 
its  bookkeeper  in  causing  the  wrongful  ar- 
rest of  its  tenant  if  he  acts  in  the  discharge 
of  his  duties,  or  his  acts  are  subsequently 
ratified.  White  v.  .Apslev  Rubber  Co.  8: 
484,  80  N.  E.  500.  194  Mass.  97. 

21.  A  railroad  company  is  not  respon- 


FALSE  IMPRISONMENT,  II.  b. 


1289 


sible  for  tlip  act  of  its  station  agent  in 
•using  its  telegraph  line  and  his  official 
position  as  agent,  to  secure  the  arrest  of 
A  person  who  was  eloping  with  the  daughter 
■of  a  friend,  under  a  false  charge  that  he 
had  stolen  property  which  had  been  com- 
mitted to  the  charge  of  the  agent,  since 
it  is  not  within  the  express  or  implied  au- 
thority of  a  station  agent  to  secure  arrests 
for  such  causes.  Mavfield  v.  St.  Louis,  I. 
M.  &  S.  E.  Co.  32:  525,  133  S.  W.  168,  97 
Ark.  24. 

22.  The  employment  of  a  detective  to 
ascertain  and  report  the  facts  a'  to  who 
was  concerned  in  a  robbery  does  not  render 
the  employer  liable  for  an  arrest  made  b;' 
him  for  the  purpose  of  ascertaining  whether 
or  not  the  person  arrested  was  concerned 
in  the  robberv.  Milton  v.  Missouri  P.  II. 
Co.  4:282,  91  S.  W.  949,  193  Mo.  46. 

(Annotated) 

23.  A  storekeeper  is  not  responsible  for 
an  arrest,  by  a  special  officer  appointed  at 
his  request  and  paid  by  him,  of  a  person 
who,  under  suspicious  circumstances,  has 
possession  of  a  satchel  stolen  from  a  coun- 
ter, where  it  had  been  placed  by  a  customer. 
Tyson  v.  Joseph  H.  Bauiand  Co.  9:  267,  79 
N.  E.  3,  186  N.  Y.  397. 

24.  A  railway  company  is  responsible  for 
the  act  of  one  commissioned  at  its  instance 
by  the  governor  as  a  policeman  to  protect 
its  property,  whose  salary  is  paid  by  it,  in 
arresting  a  person  upon  its  premises  wliom 
he  charges  with  having  in  possession  prop- 
erty stolen  from  it.  Baltimore,  C.  &  A.  R. 
Co.  V.  Ennalls,  16:  iioo,  69  Atl.  638,  108  Md. 
75. 

25.  A  railroad  company  is  liable  for  the 
act  of  a  policeman  in  its  employ  who,  under 
the  state  statutes,  has  the  power  of  a  public 
officer  in  criminal  matters,  in  arresting  a 
citizen  in  excess  of  authority  conferred  by 
an  execution  which  had  been  issued  in  favor 
of  the  corporation  in  a  civil  action,  and 
compelled  to  answer  in  damages  for  false 
imprisonment.  Tavlor  v.  New  York  &  L. 
B.  R.  Co.  (N.  J.  Err.  &  App.)  39:  122,  78 
Atl,  169,  80  N,  J.  L.  282.  (Annotated) 

b.  Officer. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

26.  Officers  in  charge  of  a  patrol  wagon 
who  assist  in  conveying  to  the  station  house 
a  person  illegally  arrested  without  warrant, 
are  equally  liable  with  the  person  making 
the  arrest  for  the  damages  caused  thereby. 
Cook  V.  Hastings,  14:  1123,  114  N.  W.  71, 
150  Mich.  289.  (Annotated) 
Officer  making  arrest. 

Effect  of  finding  of  nonliability  on  part  of 
municipality  on  appeal  from  joint  ver- 
dict against  municipality  and  police- 
man for  wrongful  arrest,  see  Appeal 
AND  Error,  1623. 

Officer  removing  person  arrested  to  another 
county,  see  Writ  and  Process,  88. 

■See  also  infra,  40-42. 

27.  The  failure  of  an  officer  to  exercise 
Digest   1-52  L.R.A.(N.S.) 


reasonable  diligence  in  taking  a  person  ar- 
rested before  a  committing  magistrate  ren- 
ders him  liable  to  the  person  arrested,  un- 
less the  delay  is  occasioned  by  the  conduct 
of  the  latter.  Blocker  v.  Clark,  7:  268,  54 
S.  E.  1022,  126  Ga.  484. 

28.  One  who,  upon  being  arrested  for  in- 
toxication and  disorderly  conduct,  to  se- 
cure his  release,  enters  a  plea  of  guilty  and 
waives  the  reading  of  the  affidavit  and  the 
right  to  be  present  in  court  upon  trial, 
waives  any  claim  he  may  have  against  the 
officer  who  arrested  him,  for  false  arrest  or 
imprisonment.  luie  R.  Co,  v.  Reicherd, 
20:  295,  166  Fed.  247,  92  C.  C.  A.  590. 

(Annotated) 

29.  A  police  officer  is  liable  for  arresting, 
without  warrant,  a  man  who  he  believes, 
and  has  reason  to  believe,  has  been  guilty  of 
indecent  exposure  of  his  person,  and  who 
refuses  to  state  his  name  or  business  to  the 
officer,  since  such  arrest  is  justified  only  for 
felony  or  breach  of  the  peace  committed  in 
the  presence  of  the  officer.  Cook  v,  Has- 
tings, 14:  1123,  114  N.  W.  71,  150  Mich.  289. 

30.  A  police  officer  who  arrests  one  who 
has  stopped  on  the  sidewalk  to  converse 
with  friends  casually  met,  upon  his  failure 
immediately  to  move  on  upon  command, 
is  liable  in  damages  for  false  arrest,  where 
his  only  authority  is  to  arrest  without  war- 
rant an  offender  taken  in  the  act,  and  the 
offense  of  which  the  person  arrested  was 
assumed  to  be  guilty  was  "failure  to  dis- 
perse when  commanded  to  do  so"  by  the 
officer.  Price  v.  Tehan,  34:  1182,  79  Atl. 
68,  84  Conn.    164.  (Annotated) 

31.  A  police  superintendent  who  detains 
one  who  has  been  arrested  by  an  officer 
without  authority  is  liable  in  damages  for 
the  unlawful  restraint,  and  it  is  no  defense 
that  he  liberated  him  upon  the  interven- 
tion of  friends  who  left  a  deposit  for  his 
reappearance,  which  the  superintendent  had 
no  authoritv  to  exact.  Price  v.  Tehan,  34: 
1 182,  79  Atl.  68,  84  Conn.  164. 

32.  Where  a  town  ordinance  prohibits 
cursing,  swearing,  and  the  use  of  boisterous 
and  indecent  language  within  the  corporate 
limits,  a  town  marshal  is  within  his  rights 
in  entering  a  building  from  which  such 
language  may  be  heard  through  a  window 
opening  upon  an  alley,  used  as  a  thorough- 
fare, in  order  to  suppress  the  disturbance; 
and,  under  an  ordinance  imposing  a  penalty 
therefor,  he  may  arrest  the  proprietor  of 
the  place,  or  other  persons  who  resist  or 
interfere  with  him  in  the  discharge  of  that 
function.  Stoehr  v.  Payne,  44:  604,  61  So. 
206,  132  La.  213. 

Magistrate. 

Burden  of  showing  absence  of  good  faith  on 
part  of  magistrate,  see  Evidence,  275. 

33.  A  statute  requiring  the  disposition  of 
a  case  brought  before  a  magistrate  "forth- 
with" is  not  violated  by  the  detention  of  the 
person  charged  with  interfering  with  an 
officer  in  the  discharge  of  his  duties  for  an 
hour,  during  which  time  he  refuses  to  sub- 
mit to  the  magistrate,  and,  by  his  angry 
manner  and  language,  contributes  to  the  de- 


1290 


FALSE  IMPRISONMENT,  III. 


lay.    Myers  v.  Dunn,  13:  881,  104  S.  W.  352, 
126  Ky.  548. 

.34.  A  justice  of  the  peace  in  whose  cus- 
tody a  person  has  been  left  by  an  officer 
with  the  discharge  of  whose  official  duties 
such  person  was  interfering,  until  a  dispo- 
sition can  be  made  of  the  case,  is  not  liable 
in  damages  for  preventing,  by  the  use  of 
reasonable  means  and  without  unnecessary 
force,  such  person  from  leaving  his  custody. 
Myers  v.  Dunn,  13:  881,  104  S.  VV.  352,  126 
Ky.  548. 

35.  A  justice  of  the  peace  is  not  liable 
in  damages  for  maliciously  entertaining  a 
false  accusation  against,  and  causing  the 
imprisonment  for  want  of  excessive  cash 
bail  of,  one  duly  charged  with  an  offense 
within  his  jurisdiction.  Gordon  v.  District 
Cf.  44:  1078,  131  Pac.  134,  36  Nev.  1. 

36.  A  justice  of  the  peace  is  not  liable  in 
damages  for  imprisoning  a  witness  for  con- 
tempt as  authorized  by  statute  in  a  pro- 
ceeding, within  his  jurisdiction,  although  he 
acts  corruptly  or  maliciously  in  so  doing. 
McBurnie  v.  Sullivan,  44:  186,  153  S.  W, 
945.  152  Ky.  686. 

37.  A  judge  of  limited  jurisdiction  is 
not  personally  liable  for  issuing  a  warrant 
of  arrest  which  he  had  no  authority  to  do, 
in  a  case  of  which  he  had  jurisdiction  of 
the  subject-matter,  if  someone  apparently 
qualified  to  do  so  appeared  before  him  and 
made  the  requisite  complaint,  stating  some 
fact.s  which  enter  into  and  may  under  some 
conditions,  or  in  co-operation  with  unstated 
facts,  constitute  a  criminal  offense,  or  stat- 
ing some  fact  or  facts  which  bear  general 
similitude  to  a  fact  or  facts  designated  by 
law  as  constituting  an  offense.  Brown  v. 
Douglass,  44:  164,  57  So.  860,  175  Ala.  268. 

38.  A  police  magistrate  with  statutory 
ai:tlioritv  to  order  the  confinement  until 
sober  of  drunken  persons  brought  before  him 
is  not  personally  liable  in  damages  to  a  per- 
son whom  lie  orders  to  be  imprisoned  until 
sober,  under  the  mistaken  belief  that  he  is 
intoxicated.  Reeves  v.  Stewart,  44:  185, 
150  S.  W.  26,  150  Ky.  124. 

39.  A  justice  of  the  peace  is  not  person- 
ally liable  for  issuing  in  good  faith  a  war- 
rant which  results  in  arrest,  upon  an  affi- 
davit which  charges  merely  a  threatened 
civil  trespass,  for  which  a  warrant  of  ar- 
rest will  not  lie,  if  he  has  general  jurisdic- 
tion of  the  subject-matter  and  the  affidavit 
was  clearly  an  attempt  to  charge  a  threat- 
ened criminal  trespass,  so  that  his  judgment 
as  to  its  sufficiency  was  invoked.  Broom  v. 
Douglass,  44:  164,  57  So.  860,  175  Ala.  268. 

( Annotated ) 

III.  Defenses,'  fustification. 

(See  also   same   heading  in   Digest   L.R.A. 
1-70.) 

Burden    of   showing   authority    of   law,    see 

Evidence,  673. 
See  also  supra,  6,  31. 

40.  An  arrest  made  by  one  acting  as  a 
conservator  of  the  peace  is  justifiable  if 
Digest   1-52  L.R.A.(N.S.) 


probable  cause  exists  therefor,  and  there 
need  not  be  just  cause  in  the  sense  of  ac- 
tual cause.  Davis  v.  Chesapeake  &  0.  R.  Co. 
9:  993,  56  S.  E.  400,  61    W.   Va.  246. 

41.  The  good  faith  which  will  protect  an 
officer  in  arresting  one  bearing  the  name 
stated  in  the  warrant,  but  who  is  not  the 
person  intended,  may  be  negatived  by  such 
want  of  ordinary  care  as  is  inconsistent  with 
good  faith;  and  it  is  not  necessary  to  the 
maintenance  of  an  action  for  false  imprison- 
ment that  he  should  have  made  the  arrest 
out  of  spite  or  a  reckless  disregard  for  the 
rights  and  liberties  of  the  citizen.  Blocker 
V.  Clark,  7:  268,  54  S.  E.  1022,  126  Ga.  484. 

42.  An  officer  who,  in  good  faith  and  aft- 
er diligent  inquiry,  arrests  a  person  bear- 
ing the  same  name  as  that  contained  in 
the  warrant,  but  who  is  not  the  person  in- 
tended thereby,  is  uot  liable  in  an  action  for 
false  imprisonment  founded  on  the  mere  fact 
of  arrest;  but  if  he  detains  such  person  in 
custody  after  information  reaches  4um  that 
the  mistake  has  been  made,  he  will  be  li- 
able in  an  action  for  false  imprisonment 
tor  such  detention.  Blocker  v.  Clark,  7: 
268,  54  S.  E.  1022,  126  Ga.  484.   (Annotated) 

43.  The  fact  that  an  arrest  may  be  made 
by  a  private  citizen  will  not  justify  one  in 
detaining  a  woman  for  three  quarters  of  an 
hour  in  an  office  against  her  will,  on  the 
ground  that  she  has  taken  property  from 
him  which  she  refuses  to  give  up  and  which 
he  is  trying  to  recover;  the  statute  relating 
to  arrests  by  private  citizens  requiring  the 
prisoner  to  be  taken  before  a  magistrate 
without  unreasonable  delay,  or  to  be  de- 
livered to  a  peace  officer.  Kroeger  v.  Pass- 
more,  14:  988,  93  Pac.  805,  36  Mont.  504. 

44.  That  one  arrested  under  an  illegal 
warrant  is  allowed  to  depart  on  his  own 
recognizance  pending  an  adjournment  does 
not  free  him  from  custody,  so  that  he  can- 
not hold  the  one  responsible  for  his  arrest 
for  expenses  thereafter  incurred  in  getting 
the  warrant  set  aside.  Worden  v,  Davis, 
22:  1196,  88   N.   E.   745,   195  N.  Y.   391. 

(Annotated) 

45.  A  plaintiff  who  abandons  a  suit  in 
which  defendant  has  been  arrested  on  mesne 
process,  before  it  is  entered  in  court,  can- 
not justify  under  the  writ  in  an  action  by 
defendant  for  false  imprisonment.  Gibson 
v.  Holmes,  4:  451,  62  Atl.  11,  78  Vt.  110. 

( Annotated ) 
Advice    of   attorney. 

46.  Advice  by  an  attorney  to  his  client 
during  a  trial,  that  an  adverse  witness  is 
guilty  of  false  swearing,  is  not  so  unbiased 
as  to  justify  the  client  in  acting  upon  it  in 
procuring  the  arrest  of  the  witness  for  such 
offense.  Smith  v.  Fields,  30:  870,  129  S.  W. 
325,  139  Ky.  60. 

47.  Advice  by  a  reputable  attorney  that 
a  witness  was  guilty  of  false  swearing  will 
not  constitute  probable  cause  to  justify  the 
securing  of  a  warrant  for  his  arrest,  if  all 
the  facts  bearing  upon  the  question  were 
not  stated  to  the  attorney.  Smith  v.  Fields,. 
30:870,  129  S.  W.  325,  139  Ky.  60. 


FALSE  IMPRISONMENT,  IV.;  FALSE  PRETENSES. 


1291 


I  .ti       IV-  In  civil  case, 

t 

(See  same  heading  i/n  Digest  L.R.A.  1-10.) 


FALSE    PRETENSES. 

Evidence  in  prosecution  for,  see  Appeal 
AND  Error,  1149;  Evidknce,  1633, 
1649,  1889,  1895,  1912,  1913. 

Instruction  in  prosecution  for,  see  Appeal 
AND  Error,  1329;  Trial,  886. 

Review  of  conviction  for  obtaining  money 
by,  see  Appeal  and  Error,  1456 

Effect  on  liability,  of  discharge  in  bank- 
ruptcy, see  Bankruptcy,  161. 

Liability  of  corporation  for,  see  Corpora- 
tions, 127. 

Arrest  of  judgment  on  conviction  for,  see 
Criminal  Law,  166. 

Variance  between  pleading  and  proof,  see 
Evidence,  2512. 

Sufficiency  of  proof,  see  Evidence,  2353, 
2414-2415a. 

Indictment  for,  see  Indictment,  etc.  41, 
82-86,  109. 

Question  for  jury  as  to,  see  Trial,  198, 
270. 

Direction  of  acquittal  in  action  for,  see 
Trial,  783. 

Venue  of  prosecution  for,  see  Venue,  17, 
19. 

Nature  of  ofPense  generally. 

Fraudulent  representations  in  civil  cases, 
see  Fraud  and  Deceit. 

1.  One  who  makes  a  representation  of 
value  as  an  existing  fact,  knowing  it  to  be 
false  and  intending  it  to  influence  another 
to  part  with  money  or  property,  and  in 
reliance  upon  which  such  other  person  is 
induced  to  part  with  money  or  property  to 
the  one  making  the  false  representation  of 
value,  is  liable  to  a  prosecution  for  obtain- 
ing money  or  property  by  false  pretenses. 
Williams  v.  State,  14:  1197,  83  N.  E.  802, 
77   Ohio  St.  468.  (Annotated) 

2.  A  representation  that  a  person  is  in 
a  business  or  situation  in  which  he  is  not, 
made  for  the  purpose  of  defrauding  another 
and  by  which  money  or  property  is  fraudu- 
lently obtained,  is  a  false  pretense.  State 
V.  Briggs,  7:  278,  86  Pac.  447,  74  Kan.  377. 

3.  The  coupling  of  a  future  promise 
with  a  false  pretense  does  not  relieve  the 
false  pretense  of  its  criminal  character. 
State  V.  Briggs,  7:  278,  86  Pac.  447,  74  Kan. 
377.  (Annotated) 

4.  The  mere  fact  that  one,  in  order  to 
secure  property  from  another  which  he 
could  not  otherwise  have  secured,  makes  a 
promise  to  do  something  in  the  future, 
which  at  the  time  he  deliberately  intends 
not  to  do,  does  not  render  him  guilty  of 
obtaining  property  by  false  pretenses. 
Com.  V.  Althause,  31:999,  93  N.  E.  202, 
207  Mass.  32. 

5.  To  render  one  guilty  under  a  stat- 
ute providing  for  the  punishment  of  anyone 
who  shall,  by  false  statement,  pretense,  or 
token,  with  intention  to  commit  fraud,  ob- 
Digest  1-52  L.R.A.(N.S.) 


tain  from  another  money,  property,  or  other 
thing  which  may  be  the  subject  of  larceny, 
it  is  not  necessary  that  the  defrauded  per- 
son shall  ultimately  suffer  loss.  Com.  v. 
Ferguson,  24:  iioi,  121  S.  W.  967,  135  Ky. 
32. 

6.  A  knowingly  false  statement  by  a 
minor  that  he  is  over  twenty-one  years  of 
age,  made  for  the  fraudulent  purpose  of 
inducing  another  to  enter  into  a  contract 
that  he  would  not  have  entered  into  had  he 
known  the  truth,  and  upon  the  faith  of 
which  such  other  parts  with  money  or  prop- 
erty, is  within  a  statute  providing  punish- 
ment for  one  who,  by  false  statement,  with 
intention  to  commit  a  fraud,  obtains  from 
another  money  or  property.  Com.  v.  Fer- 
guson, 24:  IIOI,  121  S.  W.  967,  135  Ky.  32. 

(Annotated) 

7.  Obtaining  money  as  a  charity  upon 
false  representations  as  to  having  sustained 
a  loss  is  within  a  statute  providing  punish- 
ment for  one  obtaining  money  by  false  pre- 
tenses. State  V.  Swan,  24:  575,  104  Pac. 
145,  55  Wash.  97.  (Annotated) 

8.  Deception  of  the  officer  who  issues  the 
warrant  is  not  necessary  to  render  one  who 
secures  money  from  a  county  by  means  of 
a  fictitious  account  guilty  of  violating  a 
statute  making  guilty  of  a  misdemeanor  any 
person  who  shall,  by  false  pretenses  or  rep- 
resentations, obtain  from  any  other  person 
any  chattel,  money,  or  valuable  security,  or 
other  property,  with  intent  to  cheat  and  de- 
fraud any  person  of  the  same.  State  v. 
Talley,  ix:  938,  57  S.  E.  618,  77  S.  C.  99. 

(Annotated) 

9.  The  account  by  means  of  which  one 
obtains  money  from  a  county  by  false  repre- 
sentations is  not  inadmissible  upon  his  trial 
for  that  offense  because  it  was  not  in  legal 
form,  not  having  been  sworn  to,  or  ap- 
proved by  the  county  board,  as  required  by 
statute.  State  v.  Talley,  11:938,  57  S.  E. 
618,  77  S.  C.  99. 

10,  Securing  property  for  a  check  which 
the  maker  represents  is  good  and  will  be 
paid,  when  he  in  fact  intends  to  stop  pay- 
ment upon  it,  does  not  render  him  guilty 
of  obtaining  property  by  false  pretenses, 
within  a  statute  making  punishable  any 
person  who,  by  any  false  pretense,  obtains 
from  any  other  person  any  valuable  thing 
with  intent  to  cheat  or  defraud.  People  v. 
Orris,  41:  170,  121  Pac.  163,  52  Colo.  244. 

(Annotated) 

11,  Obtaining  property  in  exchange  for 
a  post-dated  check  which  the  maker  prom- 
ises to  make  good  when  the  date  of  payment 
arrives  does  not  render  him  guilty  of  ob- 
taining property  by  means  of  false  pretenses, 
although  he  fails  to  do  so,  since  such  ac- 
tion cannot  be  predicated  upon  bre^h  of  a 
promise.  State  v.  Ferris,  41:  173,  86  N.  E. 
993,  171   Ind.  562.  (Annotated) 

12,  Representation  that  the  check  is 
against  funds,  or  will  be  paid,  is  not  neces- 
sary to  bring  within  a  statute  providing  for 
the  punishment  of  any  person  who  design- 
edly and  by  false  pretense,  or  by  any  privy 
or  false  token,  and  with  intent  to  defraud, 
obtains  money   from   another,   one  who  se- 


1292 


FALSE  REPRESENTATIONS— FAMILY  EXPENSES. 


cures  an  indorsement  of  his  check  drawn 
to  the  indorser's  order,  to  obtain  funds  from 
a  strange  bank,  with  no  credit  to  meet  it, 
or  reasonable  ground  to  believe  that  it  will 
be  honored  so  that  the  indorser,  in  whose 
presence  the  funds  are  paid  to  the  drawer, 
is  obliged  to  make  good  the  amount  to  the 
bank  cashing  it,  because  the  bank  on  which 
it  is  drawTi  refuses  to  honor  it.  State  v, 
Foxton,  52:  919,  147  N.  W.  347,  —  Iowa, 
— .  ( Annotated ) 

13.  That  one  drawing  a  check  which  he 
induces  another  to  cash  does  not  state  that 
he  has  funds  in  bank,  or  that  it  will  be 
paid,  will  not  prevent  his  conviction  for 
obtaining  money  by  false  pretenses,  if  he 
knows  that  it  will  not  be  paid,  and  draws 
it  with  intent  to  defraud.  State  v.  Ham- 
melsy,  17:  244,  96  Pac.  865,  52  Or.  156. 

(Annotated) 

14.  Obtaining  money  on  a  check  upon  a 
hank  in  which  the  drawer  never  had  funds, 
or  which  he  had  no  reason  to  believe  would 
honor  his  check,  is  within  the  statute  making 
it  a  felony  to  obtain  money  by  the  use  of 
any  false  or  bogus  check.  Williams  v.  Ter- 
ritory, 27:  1032,  108  Pac.  243,  13  Ariz.  27. 

(Annotated) 

15.  The  procuring  of  the  payment  of  a 
just  debt  already  due,  by  false  pretenses, 
is  not  an  indictable  offense.  State  v.  Wil- 
liams, 32:  420,  69  S.  E.  474,  68  W.  Va.  86. 

16.  One  who  obtains  possession  of  prop- 
erty upon  the  pretense  of  buying  it  for 
cash,  at  an  agreed  price,  for  the  purpose 
of  the  payment  of  a  just  debt  then  due  by 
the  owner,  equal  to,  or  greater  in  amount 
than,  the  price  of  the  property,  is  not  guilty 
of  a  statutory  crime.  State  v.  Williams, 
32:  420,  69  S.  E.  474,  68  W.  Va.  86. 

( Annotated ) 

17.  One  who  trades  to  another  proper- 
ties at  fictitious  and  greatly  exaggerated 
value,  as  to  which  there  is  no  evidence  that 
he  had  title,  is  not  within  the  protection 
of  a  statute  against  obtaining  property  by 
means  of  the  confidence  game,  so  as  to  ren- 
der one  guilty  who  trades  to  him,  in  re- 
turn for  his  property,  worthless  securities. 
People  V.  Turpin,  17:  276,  84  N.  E.  679,  233 
111.  452.  (Annotated) 

18.  Effecting  a  horse  trade  by  declar- 
ing the  soundness  of  the  horse  to  be  traded 
with  knowledge  of  the  falsity  of  the  state- 
ment, with  intent  to  cheat  and  defraud, 
brings  one  within  the  operation  of  a  stat- 
ute making  guilty  of  a  misdemeanor  one 
who,  by  false  pretenses  or  representations, 
obtains  from  another  person  any  chattel 
or  other  property  with  intent  to  cheat  or 
defraud  any  person  of  the  same.  State  v. 
Stone,  49:  574,  79  S.  E.  108,  95  S.  C.  390. 

( Annotated ) 

19.  One  who  delivers  short  weight  for  a 
full  price  is  guilty  of  obtaining  property 
by  false  pretenses,  although  the  purchaser 
suspects  that  the  seller  gives  short  weight 
and  makes  the  purchase  to  verify  his  suspi- 
cion, if  he  cannot  determine  the  fact  with- 
out weighing  the  commoditv  sold.  State  v, 
Ice  &  Fuel  Co.  52:  216,  81  S.  E.  737,  166  N. 
C.  366. 

Digest   1-52  I..R.A.(N.S.) 


TVliat  constitntes   a  false  token. 

20.  A  bank  cashier  is  not  guilty  of  ob- 
taining property  by  means  of  a  privy  or 
false  token  by  drawing  and  certifying  a 
check  on  the  bank,  which  he  exchanges  for 
the  property,  if  at  the  time  he  states  to 
the  seller  that  the  check  is  not  collectible 
because  the  bank  has  not  funds  enough  on 
hand  to  pay  it,  since  the  seller  cannot  be 
regarded  as  havinji;  relied  on  the  token  as 
valid.  State  v.  Miller,  6:  365,  85  Pac.  81,  47 
Or.  562.  (Annotated) 
Defenses. 

21.  It  is  no  defense  to  an  indictment  for 
obtaining  money  by  false  pretenses  that  the 
transaction  in  which  the  money  was  ob- 
tained was  a  pretended  sale  of  counterfeit 
money.  Horton  v.  State,  39:  423,  96  N.  E. 
797,  85  Ohio  St.  13.  (Annotated) 

22.  Failure  of  one  solicited  to  purchase 
stock  in  a  corporation  to  investigate  the 
truth  of  representations  as  to  its  standing 
will  not  protect  the  one  who  effects  the 
sale  by  false  and  fraudulc  t  representations 
concerning  it  from  a  prosecut'in  for  ob- 
taining money  by  false  pretenses,  provided 
the  representations  are  not  absurd  or  irra- 
tional, or  such  as  are  not  calculated  to  de- 
ceive the  party  to  whom  thev  are  made. 
State  v.Keyes,6:  369,  93  S.  W.'801,  196  Mo. 
136.  (Annotated) 

#>» 


FALSE  REPRESENTATIONS. 

See  Fbaud  and  Deceit. 


♦  •» 


FALSE  TOKEN. 

What  constitutes,  see  Fai-se  Pbetenses,  20. 
♦•» 

FAMILY. 

Past  services  by  member  of  family  as  con- 
sideration for  note,  see  Bills  and 
Notes,  31. 

Within  meaning  of  homestead  laws,  see 
Homestead,  9. 

Stepfather  as  member  of,  see  Insxjbanck, 
79. 

Specific  performance  of  promise  to  compen- 
sate member  of  family  for  past  serv- 
ices, see  Spex!ific  Pebfobmance,  78. 


FAMILY    CIRCUMSTANCES. 

Evidence  as  to,  see  Evidence,  XI.  q. 


FAMILY   EXPENSES. 

See  Husband  and  Wife,  I.  c. 


FARE. 

Of  passenger,  see  Cabkiebs,  II.  m. 

♦-•-♦ 

FARM. 

Liability  for  injury  to  person  on  farm  oper- 
ated by  city,  see  Municipal  Cohpoka- 
iiONS,  338. 


FARE— FEDERAL  QUESTION. 

FAST   WRIT. 


1293 


FARM  ASSOCIATIONS. 

Injunction  to  restrain  monopolistic  agree- 
ment by,  see  Injunction,  127. 

Legality  of,  see  Monopoly  and  Combina- 
tions, 41. 


FARM   CROSSING. 

Duty  of  railroad  company  as  to,  see  Eail- 
boads,  141. 


FARMERS. 


Exemption  of,  from  involuntary  proceed- 
ings in  bankruptcy,  see  Bankkuptcy, 
6,  7. 


FARMHOUSE. 


Power  of  municipality  to  own  and  control, 
see  Municipal  Cobporations,  301. 


-♦-•-♦- 


FARMING. 

Of  office,  see  Contracts,  524. 
♦-•-♦ 


FARM  LABORERS. 

Imprisonment  for  breach  of  farm  labor  con- 
tract, see  Constitutional  Law,  335; 
Imprisonment  fob  Debt,  7,  8;  Peon- 
age. 

Lfien  on  crops  for  wages  of,  see  Liens,  10. 


FARM   LANDS. 


Municipal  taxation  of,  see  Municipal  Cob- 
pobations,  497. 


FAST  DRIVING. 


What  constitutes,  see  Appeal  and  Ebbob,, 

42. 


FATHER-IN-LAW. 

Gift   by,   to   son-in-law   as   advancement   to 
daughter,  see  Advancement,  3. 


FAULT    FINDING. 


As   ground    for   divorce,    see   Divoece   anit 
Sepabation,  35. 


FAVORITISM. 


By   oflBcer,   actionability   of   charge  of,   see 
Libel  and  Slandeb,  68,  69. 


FEDERAL  COURTS. 

In  general,  see  Coubts,  III.;  IV.  ^ 

Assignment  of  cross  errors  in,  see  Appeal. 

AND  Error,  284. 
State    courts    following    decisions    of,    see 

Courts,  V.  d. 
Following  state  decisions,  see  Courts,  V.  f. 
Habeas  corpus  in,  see  Habeas  Corpus,  IL 
Removal    of    cause    to,    see    Removal    op 

Causes. 


FEDERAL  DECISIONS. 

Effect  of,  in  state  courts,  see  Courts,  V.  d. 


FEDERAL  EMPLOYERS'  LIABILITY 
ACT. 

As  proper  exercise  of  power  to  regulate 
commerce,  see  Commerce,  57-62. 

Constitutionality  of,  see  Constitutional 
Law,  470,  471. 

Liability  under  generally,  see  Master  and 
Sebvant,  192-197. 


On  highway,  see  Highways,  372,  373. 
Digest  1-52  L.R.A.(N.S.) 


FEDERAL  QUESTION. 

Jurisdiction  of,  see  Courts,  III.  c. 

In  extradition  proceedings,  see  ExteadI' 
tion,  7. 

As  giving  right  to  remove  cause  to  Federal- 
court,  see  Removal  of  Causes,  2. 


Mi 


FEE— FENCES,  I. 


.■..-,:;  TEE. 

.Creation  of,  by  deed,  see  Deeds,  II.  e,  2. 
In  highway,  see  Highways,  II. 


FEED. 

t. 

Injury  to  cattle  by  mill  feed,  seller's  liabil- 
ity, see  Nexjligence,  58. 


FEELINGS. 


Ill,  0. 


Damages  for  injury  to,  see  Damages, 

♦  » » 

FEES. 

In  general,  see  Costs  and  Fees. 
Of  clerk,  see  Clerks. 
Of  officers,  see  Officebs,  II.  b. 
Of  witness,  see  Witnesses,  V. 
On  property  coming  before  probate  court, 
see  Taxes,  10. 


FEE  SIMPLE. 


■Creation  of,  by  deed,  see  Deeds,  II.  e,  2. 
^Creation  of,  by  will,  see  Wills,  III.  g,  2,  3. 


FELLOVr  SERVANTS. 

Generally,  see  Master  and  Servant,  II.  e. 

Assumption  of  risk  of  negligence  of,  see 
Master  and  Servant,  II.  b,  8. 

Who  are,  see  Master  and  Servant,  II.  e,  5. 

Master's  liability  for  assault  on,  see  Mas- 
ter and  Servant,  953-955. 

Liability  of,  for  injury  to  fellow  servant, 
see  Master  and  Servant,  1049-1056. 


TTl. 


FELON. 


Recovery   for,   under    insurance   policy,   see 
Insurance,  736. 


FELONY. 

Compounding,  see  Compounding  Crime. 

Civil  liability  for  killing  in  effecting  arrest 
for,  see  Death,  38. 

Exclusion  from  franchise  of  person  con- 
victed of,  see  Elections,  7,  8. 

What  constitutes  gaming  within  meaning 
of  statute  making  gaming  a  felony,  see 
Gaming,  5. 

Digest   1-52   L.R.A.(N.S.) 


FEME  COVERT. 

See  Husband  and  Wife. 


FENCE. 

Injunction  against  operation  of  assay  office 
which  is  merely  a  fence  for  handling 
stolen  ore,  see  Injunction,  12. 


FENCES. 

I.  In  general,  1,  2. 
II.  Division  or  line  fence,  3. 
III.  Malicious  erection  of,  4—6. 

Boundary  fences,  see  Boundaries,  II. 

Liability  of  railroad  which  has  cut  gap 
in  fence,  for  injury  to  crops  by  tres- 
passing cattle,  see  Crops,  2. 

Jurisdiction  of  action  to  recover  for  in- 
jury to,  or  destruction  of,  see  CouRis, 
40. 

Landlord's  covenant  to  fence,  see  Cove- 
nants AND  Conditions,  12. 

Billboard  as  violative  of  covenant  fixing 
character   of    fence   to   be   efected,    see 

COVEIfANTS    AND    CONDITIONS,    83. 

Leaving  bars  or  gates  for  convenience  of 
neighbor  when  fencing  land  as  affect- 
ing acquisition  of  easement  by  pre- 
scription, see  Easements,  25. 

Presumption  as  to  matters  determined  in 
suit  to  enjoin  interference  with,  see 
Evidence,  505. 

Injunction  against,  see  Injunction,  102, 
189. 

Dismissal  of  suit  to  enjoin  interference 
with,  as  bar  to  action  to  establish 
boundary,  see  Judgment,  115-117. 

Duty  of  railroad  company  to  fence  sides  of 
approach  to  trestle  for  protection  of 
servants,  see  Master  and  Servant, 
404. 

Liability  of  railroad  company  for  wrong- 
fully placing  snow  fence  upon  abutting 
property,  see  Master  and  Shirvant, 
886. 

As  nuisance,  see  Nuisances,  15. 

On  railroad  right  of  way,  see  Railroads, 
11.  c. 

Injury  to  child  on  railroad  track  due  to 
lack  of,  see  Railroads,  115. 

Injury  to  animals  by  failure  of  railroad  to 
fence,  see  Railroads,  184-186. 

City's  duty  to  fence  ditch  through  which 
water  supply  derived,  see  Waters,  333. 

I.  in  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  A  landowner  cannot  be  enjoined 
from  erecting  a  fence  along  one  side  of  his 
land  for  the  purpose  of  preventing  his 
neighbor's  cattle  from  crossing  it  to  reach 
uninclosed  public  land  upon  which  they  have 


FENCES,  II.— FERRIES. 


1295 


been  in  the  habit  of  grazing.  Anthony  Wilk- 
inson Live  Stock  Co.  v.  Mcllquham,  3:  733, 
83  Pac.  364,  14  VVyo.  209.  (Annotated) 

Necessity  of;  effect  of  failure  to  fence. 

Duty    to    construct    to    exclude    cattle,    see 

Animals,  24,  28, 
Injury     to     animals     getting     upon     land 

through  failure  to  fence  or  repair  fence, 

see  Animals,  6,  7. 

2.  An  owner  of  land  not  adjoining  a 
highway  may  recover  his  damages  from  tres- 
passes by  cattle,  which,  while  being  driven 
along  the  highway  with  due  care,  escaped 
from  the  control  of  their  custodians,  and, 
crossing  the  intervening  land,  which  was  un- 
fenced,  entered  upon  his  land,  which  was  also 
unfenced,  even  though  division  fences  were 
required  by  statute  or  prescription;  since^ 
he  is  not  required  to  fence  against  cattle  not 
rightfully  upon  the  adjoining  lands.  Wood 
V.  Snider,  12:  912,  79  N.  E.  858,  187  N.  Y. 
28. 

II.  Division  or  line  fence. 

(See  also  same  heading  in  Digest  L.R.A. 
l-'tO.) 

Right  of  one  failing  to  maintain  division 
fence  to  recover  for  trespass  by  neigh- 
bor's cattle,  see  Animals,  24. 

Oral  agreement  of  occupants  of  adjoining 
land  to  maintain,  see  Contracts,  248. 

Who  bound  by  covenant  perpetually  to 
maintain  division  fence,  see  Covenants 
AND  Conditions,  116,  119. 

3.  A  statute  providing  that  the  owners 
of  adjacent  lands  shall  build  and  maintain 
the  partition  fences  between  them  in  equal 
shares  unless  otherwise  agreed  upon,  and 
that,  if  any  party  neglects  to  build  or  repair 
a  partition  fence,  or  the  portion  thereof 
which  he  ought  to  build,  the  aggrieved  par- 
ty may  complain  to  the  township  trustees, 
who,  if,  upon  notice,  he  fails  to  construct, 
may  order  it  built,  and  the  costs  collected 
as  other  taxes,  cannot  be  so  construed  and 
administered  as  to  charge  the  owner  of 
lands  which  are,  and  are  to  remain,  unin- 
closed,  with  any  part  of  the  expense  of  con- 
structing and  maintaining  such  a  line  fence 
for  the  sole  benefit  of  the  adjoining  pro- 
prietor. Alma  Coal  Co.  v.  Cozad,  20:  1092, 
87  N.  E.  172,  79  Ohio  St.  348. 

(Annotated) 

III.  Malicious  erection  of, 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

.OWI'VF.n  -. 

SuflSciency  of  evidence  of  malice,  see  Evi- 
dence, 2097. 

Injunction  against  maintenance  of  spite 
fence,  see  Injunction,  115. 

Necessity  of  making  landlord  a  party  in 
action  to  compel  tenant  to  remove 
spite  fence,  see  Parties,  190. 

Pleading  in  suit  for  injunction  against  spite 
fence,  see  Pleading,  431. 

Digest   1-52  I..R.A.(N.S.) 


4.  Maliciously  to  construct  a  fence  on 
one's  property  to  cut  oil"  the  light  and  air 
from  his  neighbor's  windows  is  actionable. 
Barger  v.  Barringer,  25:  831,  U6  S.  E.  439, 
151  N.  C.  433.  (Annotated) 

5.  A  landowner  will  be  enjoined  from 
erecting  a  fence  on  his  land  to  the  great 
damage  of  his  neighbor,  and  witliout  any 
useful  purpose  on  his  part,  but  for  tlie  sole 
purpose  to  annoy  and  punish  the  party  in- 
jured. Bush  v.  Mockett,  52:  730,  145  N. 
W.    1001,  95   Neb.   552.  (Annotated) 

6.  The  court  will  order  the  removal  of 
a  spite  fence  erected  to  compel  an  adjoin- 
ing property  owner  to  abandon  a  suit  in- 
stituted to  enjoin  the  maintenance  of  a  nui- 
sance on  the  property  of  the  one  who 
erected  it.  Wilson  v.  Irwin,  42:  722,  138 
S.  W.  373,  144  Ky.  311,  (Annotated) 


FENDEB. 

Injury  to  person  falling  over,  see  Carriers, 
99,  335;  Street  Railways,  23,  4G,  62. 

Requiring  street  railways  to  use  particular 
kind  of,  see  Municipal  Corporations, 
129. 


FERRIES. 


Ferry  company  as  common  carrier,  see  Car- 
riers, 12. 

Authority  of  ferry  ticket  collector,  see  Car- 
riers, 34. 

Ejection  of  passenger  from,  see  Carriers, 
434. 

Requiring  license  for  ferry  between  state 
and  Canada  as  interference,  see  Com- 
merce, 14. 

Right  of  grantee  of  ferry  franchise  to  ac- 
quire landings  under  power  of  eminent 
domain,  see  Eminent  Domain,  81. 

License  to  keep  bar  on  ferry  boat,  see  In- 
toxicating Liquors,  22. 

Interference  with  booms  by  operation  of,  see 
Watees,  110. 

1.  One  employing  a  flat  boat  or  other 
means  of  transporting  his  empioj'ees  and 
teams  across  a  stream  to  and  from  Iiis  saw- 
mill, who  does  not  transport  any  part  of 
the  public  for  hire  or  compensation,  is  not 
engaged  in  operating  a  ferry.  Futch  v. 
Bohannon,  30:  462,  67  S.  E.  814,  1.34  fia.  313. 
Exclusive  right;  subsenuent  ferry. 

2.  The  use  of  a  flatboat  or  other  ves- 
sel, solely  for  the  purpose  of  carrying  the 
owner's  employets  and  teams  across  a 
stream  to  and  from  his  sawmill,  does  not 
infringe  the  rights  of  the  owner  of  a  pub- 
lic ferry,  although  such  rights  are  exclusive 
and  territorially  extend  beyond  the  point 
at  which  the  former  keeps  and  maintains 
his  personal  conveyance.  Futch  v.  Bohan- 
non, 30:462,  67  S.  E.  814,  134  Oa.  313. 

(Annotated) 

3.  The  franchise  of  a  ferry  is  not  a 
grant  of  an  exclusive  right  to  carry  across 


1296 


FERTILIZER— FILING. 


a  stream  by  any  means  whatever,  but  only 
a  grant  of  the  exclusive  right  to  carry 
across  by  means  of  a  ferry:  therefore  a 
bridge  connecting  the  same  highways  as 
the  ferry,  whereby  the  ferry  owner  loses 
all  the  income  he  used  to  receive  from  tolls, 
is  not  a  disturbance  of  liis  franchise — es- 
pecially where  the  ferry  did  not  accomo- 
date vehicular  traffic.  Dibden  v.  Skirrow, 
1  B.  R.  C.  333,  [1908]  1  Ch.  41.  Also  Re- 
ported in  77  L.  J.  Ch.  N.  S.  107,  71  J.  P. 
555,  97  L.  T.  N.  S.  658,  24  Times  L.  R.  70, 
6  Local  G.  R.  108.  (Annotated) 


FERTILIZER. 


Recovery  of  price  of  fertilizer  sold  in  vio- 
lation of  statute,  see  Bills  and  Notes, 
222. 

Validity  of  ordinance  as  to  manufacture  of, 
see  Constitutional  Law,  195. 

Ordinance  of  board  of  health  as  to,  see 
Health,  7. 

Imposing  license  on  business  of  dealing  in, 
see  License,  47. 

Imposing  tax  upon  nonresident  dealer  in, 
see  Municipal  Corporations,  434. 


FIANCEE. 

Insurable   interest   of,   see   Insurance,   67, 
80. 
^Damages  for  delay  in  delivering  baggage  of, 
see  Damages,  621, 

Nondelivery  of  telegram  in  time  to  enable 
sendee  to  attend  funeral,  see  Damages, 
659. 

Interest  of,  in  benefit  certificate,  see  In- 
surance, 849. 

Larceny  from,  see  Larceny,  37. 

Right  of  action  for  seduction  of,  see  Se- 
duction, 3. 


FICTITIOUS  PAYEE. 

CJheck  in  favor  of,  see  Banks,  130-132,  139, 
140,  143;  Bills  and  Notes,  9;  For- 
gery, 13. 

Issue  of  refunding  tax  warrants  to,  see 
Bonds,  48. 


FICTITIOUS    PAYMENT. 

Indorsement  of,  upon  note,  see  Alteration 
OF  Instruments,  15;  Bills  and 
Notes,  3.    " 

♦*-♦ 


FICTITIOUS  PERSON. 

Check  payable  to,  see  Banks,  130-132,  139, 
140,  143;  Bills  AND  Notes,  9;  For- 
gery, 13. 

3>igest  1-52  L.R.A.vH.S.) 


Issue    of    refunding    tax    warrants    to,    ««- 
Bo.NDS,  48. 


FICTITIOUS   RACE. 

Inducing  person  to  make  bid  on,  see  Plead- 
ing, 385. 


FIDELITY  INSURANCE. 


See  Bonds,  IL  b. 


FIDUCIARY  RELATIONS. 

Between  attorney  and  client,  see  AttoB'- 
neys,  II. 

Of  real  estate  agent,  see  Brokers,  II. 

Of  physician  toward  .  patient,  see  Con- 
tracts, 285. 

Between  corporation  and  officers,  see  Cor- 
porations, IV.  g,  4. 

Of  agent,  see  Principal  and  Agent,  99- 
107. 

What  is  debt  created  by  default  in  fiduciary 
capacity,  see  Bankruptcy,  173. 

Jurisdiction  of  equity  where  fiduciary  re- 
lation exists,  see  Equity,  76. 

Estoppel  of  city  to  claim  secret  profits  made 
by  member  of  committee  purchasing 
real  estate  for  city,  see  Estoppel,  13. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  115,  116,  268. 

Fraud  in  abuse  of,  see  Fraud  and  Deceit, 
3. 

Giving  priority  in  funds  in  receiver's  hands, 
see  Receivers,  36. 


FIELD   NOTES. 


Failure  of,  to  mention  island  as  creating^ 
presumption  as  to  nonexistence,  see 
Evidence,  520. 

Of  deceased  surveyor  as  evidence,  see  Eyie- 
dence,  1856. 


FIERI  FACIAS. 


See  Execution;  Judgment,  168;  Levy  awd- 
Seizure. 


kM-1 


FIGHTING. 

See  Assault  and  Battery. 
♦  * » 


FILING. 

Of  schedule  by  carrier,  see  Casbiers,  728,. 
1017,   1019-1024. 


FILMS— FINDINGS. 


1297 


Of  chattel  mortgage,  see  Chattel  Mort- 
gage, 111. 

Of  articles  of  incorporation,  see  CoitPOKA- 
Tioxs,  15,  322,  323. 

Of  reports  by  corporate  officers,  see  Cobpo- 
EATIONS,   167. 

Of  mechanics'  lien,  see  Mechanics'  Liens, 

92,  100-107. 
Of  pleading,  see  Pleading,  I.  p. 
Of   notice   of    amendment   of    pleading,    see 

Pleading,  117. 


FILMS. 

Mental  anguish  as  element  of  damages  in 
case  of  loss  of  undeveloped  films,  see 
Damages,  625. 


FIIiTER. 

Duty    of   water    supply    company   to   filter 
water,  see  Waters,  373. 


FILTH. 

On  street  car  steps,  see  Cakbiers,  302. 


FINALITY  OF  DECISION. 

For    purpose    of    appeal,    see    Appeal   and 
Ebbor,  I.  b. 


FINANCIAL  ADVICE. 

Offer  of,  by  newspaper  to  reader,  see  Con- 
tracts, 18,  19,  57;  Damages,  100. 


FINANCIAL  CIRCUMSTANCES. 

Right  to  consider  in  estimating  damages  for 
breach  of  promise,  see  Damages,  320. 

Right  to  consider,  in  estimating  damages 
for  seduction,  see  Damages,  334. 

Evidence  on  question  of,  see  Evidencr,  758. 

Evidence  of  change  in,  in  criminal  prosecu- 
tion, see  Evidence,  1838,  1839. 


FINANCIAL    STANDING. 

Actionability   of   communication   as  to,   see 
Libel  and  Slander,  105. 


FINDER. 

Uvidence  in  action  by  finder  against  one  to 
whom  property  was  delivered  for  safe 
keeping,  see  Evidence,  1445. 

Digest  1-52  L.R.A.(N.S.)  82 


Variance  between  pleading  and  proof  in  ac- 
tion by  finder  to  recover  property 
found,  see  Evidence,  2473. 

Larceny  by  one  finding  lost  property,  see 
Indictment,  etc.,  90;  Larceny,  8,  38- 
40. 

Running  of  limitations  against  right  to 
recover  lost  property,  see  Limitation 
OF  Actions,  183. 

Right  of  one  losing  lottery  ticket  to  re- 
cover against  finder  thereof  to  whom 
prize  is  awarded,  see  Lottery,  2. 

Refusal  of  instructions  in  contest  between 
finder  and  alleged  owner,  see  Trial, 
813. 

Trover  against  cofinder,  see  Trovee,  4. 

As  to  treasure  trove,  see  Treasure  Trove. 

1.  Money  or  property  is  not  lost,  in  the 
sense  that  a  finder  may,  by  his  discovery  and 
possession  thereof,  obtain  absolute  title 
thereto  unless  it  has  been  voluntarily  aban- 
doned or  cast  away  by  the  owner.  Kuy- 
kendall  v.  Fisher,  8:  94,  56  S.  E.  48,  61  VV. 
Va.  87. 

2.  Property  is  usually  considered  lost 
in  a  legal  sense  when  the  possession  has 
been  casually  and  involuntarily  parted  with, 
as  in  the  case  of  an  article  accidentally 
dropped  by  the  owner.  Kuykendall  v. 
Fisher,  8:  94,  56  S.  E.  48,  61  W.  Va.  87. 

3.  The  finder  of  lost  property  or  treas- 
ure-trove acquires,  by  the  act  of  finding,  no 
right  of  property  therein  as  against  the 
owner;  but  as  against  all  other  persons  he 
is  entitled  to  the  possession  thereof  as  a 
quasi  depositary,  holding  for  the  owner. 
Kuykendall  v.  Fisher,  8:  94,  56  S.  E.  48, 
61  W.  Va.  87.  (Annotated) 

4.  Mere  employment  of  one  to  remove 
property  from  the  warehouse  of  the  em- 
ployer does  not  give  the  latter  title  to 
money  which  the  employee  finds  in  the 
warehouse  during  the  performance  of  the 
work.  Roberson  v.  Ellis,  35:  979,  114  Pac. 
100,  58  Or.  219. 

5.  The  owner  of  a  private  warehouse 
to  which  only  himt-elf  and  his  brother  have 
access  has  no  qualified  title  to  money  found 
there  by  an  employee  which  does  not  be- 
long to  either  himself  or  his  biother,  which 
will  give  him  a  right  to  its  custody  as 
against  the  employee.  Roberson  v.  Ellis, 
35:  979,  114  Pac.  160,  58  Or.  219. 

(Annotated) 


FINDINGS. 


Sufficiency  of  exception  to,  see  Appeal  and 

Error,  304-307. 
Presumption  as  to,  on  appeal,  see  Appeal 

and  Error,  451-465. 
Estoppel    to    except    to,    see    Appeal    and 

Error,  530. 
As   part   of   record   on   appeal,   see   Apphal 

and  Error,  IV.  i. 
Review    of,    on    appeal,    see    Appeal    and 

Error,  VII.  1,  3. 
Review  of  discretion  in  refusing  to  modify, 

see  Appeal  and  Ebror,  561. 


1298 


FINES— FIRE  DEPARTMENT. 


Discretion  of  trial  court  as  to  giving  or  re- 
fusing special  findings,  see  Appeal  and 
Ekror,  645. 

Failure  to  find  as  ground  for  reversal,  see 
Appeal  and  Error,  1539. 

Prejudicial  error  as  to,  see  Appeal  and 
Error,  VII.  m,  8. 

By  legislature,  review  of,  by  courts,  see 
Courts,  104-107. 

Conformity  of  judgment  to,  see  Judgment, 
I.  e,  2. 

Conclusiveness  of  decision  on  demurrer,  see 
Judgment,  100-102. 

Review  of  findings  of  state  board  of  health 
in  proceeding  to  revoke  physician's  li- 
cense, see  PHYSiCLAJis  and'  Surgeons, 
13. 

By  court  generally,  see  Trial,  IV. 

By  jury,  see  Tblal,  V. 


FINES. 

For  keeping  dog  which  does  not  wear  a 
collar,  see  Animals,  3. 

For  violation  of  liqubr  law,  see  Appeal  and 
Error,  80. 

For  ignoring  rulings  of  court,  see  Attor- 
neys, 31. 

For  contempt,  see  Contempt,  108,  109. 

Against  corporation  for  violating  injunc- 
tion, see  Corporations,  116. 

Against  corporation  guilty  of  illegal  combi- 
nation, see  Monopoly  and  Combina- 
tions, 22. 

By  labor  union  to  coerce  members  to  join 
strike,  see  Labor  Organizations,  6. 

Due  process  of  law  as  to,  see  Constitution- 
al Law,  564. 

Excessive  fines,  generally,  see  Criminal 
Law,  249. 

Expulsion  of  member  of  labor  union  for  re- 
fusal to  pay,  see  Equity,  15. 

Statute  requiring  fines  for  violation  of 
game  laws  to  be  paid  to  warden  of 
county,  see  Game  Laws,  8. 

Diversion  of,  from  support  of  common 
school,  see  Husband  and  Wife,  214. 

Imprisonment  for  nonpayment  of,  see  Im- 
prisonment FOR  Debt,  5. 

Enforcing  payment  of  license  and  occupa- 
tion taxes  by,  see  License,  130. 

Power  of  municipality  to  impose,  see  Mu- 
nicipal Corporations,  179. 

Right  to  consider  in  determining  whether 
city  has  exceeded  debt  limit,  see  Mu- 
nicipal Corporations,  268, 

Who  may  maintain  action  to  recover,  see 
Parties,  6. 

Liability  of  principal  to  reimburse  agent 
for  fines  paid  for  violation  of  law  in 
principal's  interest,  see  Pbincipai.  and 
Agent,  97. 

Paying  to  wife  fine  imposed  upon  husband 
for  abandoning  her,  see  Public  Mon- 
eys, 15. 

SuflSciency  of  tender  of,  see  Tender,  7, 

As  to  penalties  generally,  see  Penalties. 

Digest  1-52  I<.R.A.(N.S.) 


FINGER  PRINTS. 

Opinion  evidence  as  to,  see  Evidence,  1176- 

1179. 
Resemblance    of,    as    sufficient    to    support 

conviction    for    crime,    see    Evidence, 

2374. 

♦•» 


FINGERS. 

Damages  for  loss  of,  see  Damages,  427. 


FIREARMS. 


Assault  by  pointing  gun,  see  Assault  and 
Battery,  10-13,  25,  37. 

SheriflF's  liability  for  injury  to  bystander 
by  discharge  of  revolver  dropped  by 
deputy,  see  Bonds,  62. 

Sufficiency  of  evidence  to  support  convic- 
tion of  attempt  to  discharge,  see  Evi- 
dence, 2398. 

Insurance  against  injury  by,  see  Insur- 
ance, 723.  ' 

Negligence  in  sale  of,  see  Nex)LIgence,  63. 

Negligence  in  use  of,  see  Negligence,  42- 
44;  Trial,  124. 


FIRE  CLAY. 


Combination  to  control  production  of,  see 
Monopoly  and  Combinations,  38. 


FIRE  DEPARTMENT. 

Exemption  of  board  of  fire  commissioners 
from  furnishing  bond  on  appeal,  see 
Appeial  and  Error,  141. 

Fireman  as  public  officer  who  cannot  as- 
sign salary,  see  Assignment,  10. 

Issue  of  city  bonds  for  fire  department  im- 
provements, see  Bonds,  88. 

Fireman  riding  free  on  street  car  as  pas- 
senger, see  Carriers,  72, 

Injury  to  fireman  on  running  board  of 
street  car,  see  Carriers,  362. 

Requiring  street  railway  company  to  carry 
firemen  free,  see  Carriers,  1031,  1032; 
Contracts,  511. 

Vested  right  of  fireman  in  exemption  from 
jury  duty,  see  Constitutional  Law, 
66,  67. 

Local  self-government  as  to,  see  Constttu- 
TiONAL  Law,  148. 

Regulating  hours  of  labor  of  firemen,  see 
Constitutional  Law,  306,  307,  479. 

Placing  fire  house  on  city  lot  in  violation 
of  building  restrictions,  see  Constitu- 
tional Law,  643. 

Measure  of  damages  for  injury  to  one  run 
down  by,  see  Damages,  408. 


FIRE   ESCAPES— FIRE   INSURANCE. 


1299 


Injury  to  driver  of  fire  wagon  by  collision 

with    street    car,    see    Damages,    414; 

ji,^      Evidence,  1789;  Street  Railways,  18, 

..      19. 

Injury  to  firemen  by  electric  shock  while 
attempting  to  put  out  fire,  see  Elec- 
tricity, 03-65 ;   liviDENCE,  1791. 

Contributory  negligence  of  firemen,  see 
Electricity,  81. 

Interfering  with  extinguishment  of  fire  by, 
see  Evidence,  2058,  2157;  Fires,  18- 
24:  Pleading,  326,  344;  Proximate 
Cause,  47,  52,  53. 

Injury  to  member  of,  by  fire  insurance  pa- 
trol, see  Fire  Insurance  Patrol,  1. 

Superior  rights  of,  in  streets  over  fire  in- 
surance patrol,  see  Fire  Insurance 
Patrol,  2. 

Members  of,  as  servants  of  person  whose 
property  they  attempt  to  save  from 
fire,  see  Fires,  24. 

Mandamus  to  mayor  to  compel  suspension 
of  chief  of,  see  Mandamus,  54,  55. 

Mandamus  to  compel  payment  of  salary  to 
fireman,  see  Mandamus,  59. 

City's  liability  for  injury  to  fireman,  see 
Master  and  Servant,  642;  Municipal 
Corporations,  408. 

Requiring  attendance  of  firemen  at  the 
theater  during  performance,  see  Munic- 
ipal Corporations,  186-188;  Pab- 
TIES,    7. 

Municipal  liability  for  negligence  of  fire- 
men, see  Municipal  Cobpobations, 
402-410. 

Liability  of  city  for  injury  to  person  in 
fire  house,  see  Municipal  Cobpoba- 
tions, 465. 

Liability  of  one  summoning,  for  injury  to 
member  of,  see  Negligence,  24,  113- 
115;  Nuisances,  10. 

Liability  of  railroad  for  destruction  of  fire 
engine,  see  Negligence,  354. 

Right  of  firemen  to  accept  free  passes,  see 
Officers,  83. 

Injury  by,  to  person  waiting  for  street  car, 
see  Proximate  Cause,  79. 

Proximate  cause  of  injury  to  fireman,  see 
Proximate  Cause,  28. 

Liability  of  telephone  company  failing  to 
connect  subscriber  with  fire  depart- 
ment, see  Proximate  Cause,  48,  49. 

Implied  repeal  of  statute  authorizing  pur- 
chase of  land  for,  see  Statutes,  337. 

Liability  for  failure  to  furnish  water  for, 
see  Waters,  357-359,  370-372,  377- 
308. 

Pensions  to  firemen. 

Vested  right  in  pension,  see  Constitution- 
al Law,  58. 

Review  of  determination  of  fire  department 
relief  association  as  to  pensions,  see 
Cou:  .s,  175,  178. 

Power  of  legislature  to  require  cities  to 
pension  firemen,  see  Municipal  Corpo- 
rations, 40,  41. 

Pensions  to  firemen  as  wrongful  use  of  pub- 
lic money,  see  Public  Money,   18. 

^Requiring  insurance  companies  to  contrib- 
ute to  firemen's  relief  fund,  see  Con- 
stitutional Law,  699;  Taxes,  16,  39. 

Digest  1-52  L.R.A.(M.S.) 


1.  The  creation  of  a  fund  by  assess- 
ments upon  fire  insurance  com])aiiies  doing 
business  in  cities,  to  pension  tirenien,  vio- 
lates a  constitutional  provision  limiting  the 
granting  of  pensions  to  those  rendering  mili- 
tary or  naval  services.  /Etna  F.  Ins.  Co.  v. 
Jones,  13:  1147,  59  S.  E.  148,  78  S.  C.  445. 

2.  A  fireman  entitled  to  a  service  pen- 
sion, no  part  of  whicli  is  paid  for  injuries 
inflicted  while  in  that  vocation  and  as  a 
result  thereof,  may  only  receive  the  pen- 
sion provided  by  law  at  the  time  of  his 
retirement.  State  ex  rel.  Haberlan  v.  Love, 
34:  607,  131  N.  W.  196,  89  Neb.  149. 

3.  A  statutory  provision  requiring  mu- 
nicipalities to  pension  firemen  does  not  con- 
travene a  constitutional  provision  that  the 
legislature  shall  never  grant  any  e.xtra  com- 
pensation to  any  public  officer,  agent,  serv- 
ant, or  contractor  after  the  services  shall 
have  been  rendered  or  the  contract  entered 
into.  State  ex  rel.  Haberlan  v.  Love,  34: 
607,  131  N.  W.  196,  89  Neb.  149. 

4.  Firemen  who  liave  served  the  re- 
quired length  of  time,  although  it  has  not 
all  been  after  the  passage  of  the  statute, 
are  entitled  to  the  benefit  of  a  statute 
allowing  pensions  to  all  firemen  whenever 
they  shall  have  served  in  the  fire  depart- 
ment for  a  cei-tain  length  of  time.  State 
ex  rel.  Haberlan  v.  I^ove,  34:  607,  131  N.  W. 
196,  89  Neb.   149. 


FIRE  ESCAFHS. 


In  general,  see  Buildings,  I.  b. 

Liability  of  charitable  corporation  for  in- 
jury by  fall  of,  see  Charities,  69. 

Liability  of  charitable  corporation  for  fail- 
ure to  provide,  see  Charities,  73. 

Right  of  owner  of  easement  to  construct, 
overhanging  lane,  as  against  fee  owner, 
see  Easements,  75. 

Effect  of  absence  of,  on  right  to  recover 
rent,  see  Landlord  and  Tenant,  180, 
181. 

Assumption  of  risk  resulting  from  absence 
of,  see  Master  and  Servant,  610. 

Negligence  of  independent  contractor  erect- 
ing, see  Master  and  Servant,  1024, 
1025. 

Absence  of,  as  proximate  cause  of  injury, 
see  Proximate  Cause,  28. 

Master's  duty  to  inspect  fire  escapes  erect- 
ed by  independent  contractor,  see 
Trial,  602. 


FIRE  HOUSE. 


Liability  of  city  for  injury  to  person   in, 
see  Municipal  Corporations,  465. 


^♦» 


FIRE  INSURANCE. 

See  Insxtbanoe. 


1300 


FIRE  INSURANCE  PATROL— FIRES, 


FIRE    INSURANCE    PATROL. 

As  charitable  organization,  see  Charities, 
15. 

1.  An  insurance  patrol  association  com- 
posed of  insurance  companies  doing  busi- 
ness in  a  certain  city,  and  having  power  to 
provide  for  and  assist  in  the  saving  of  life 
and  property,  and  which  is  supported  by  as- 
sessments levied  on  all  persons  or  companies 
engaged  in  the  insurance  business  in  such 
city,  is  liable  in  damages  for  injuries  re- 
sulting to  a  member  of  the  city  fire  depart- 
ment, received,  while  engaged  in  the  dis- 
charge of  his  duties,  through  the  act  of  its 
servant  in  negligently  driving  through  the 
streets,  since  such  an  association  is  a  pri- 
vate corporation,  organized  to  promote  the 
pecuniary  interests  of  its  members,  not- 
withstanding that  the  statute  under  which 
the  association  is  organized  prohibits  it 
from  charging  for  its  services,  or  from  dis- 
tinguishing between  insured  and  uninsured 
property.  Coleman  v.  Fire  Ins.  Patrol,  21: 
810,  48  So.  130,  122  La.  626.       (Annotated) 

2.  The  right  of  way  through  the  streets 
of  New  Orleans,  granted  to  its  fire  depart- 
ment by  La.  act  No.  83,  p.  114,  of  1894,  is 
paramount  to,  and  wholly  unaffected  by,  a 
similar  right  granted  to  the  fire  insurance 
patrol  of  that  city  by  §  5,  act  No.  115,  p. 
186,  1902,  as  such  act  is  qualified  by  §  4 
thereof,  providing  that  nothing  therein  shall 
be  so  construed  as  to  lessen  in  any  way  the 
authority  of  the  fire  department.  Coleman 
V.  Fire  Ins.  Patrol,  21:  810,  48  So.  130,  122 
La.  626. 


FIRE  LIMITS. 


See  also  Buildings,  13-28. 

Regulations  as  to,  as  interference  with  prop- 
erty rights,  see  Constitutional  Law, 
380,  381. 

Review  of  municipal  action  in  establishing, 
see  Courts,  166. 

Estoppel  to  question  city's  authority  to 
grant  permission  to  erect  building 
within  fire  limits,  see  Estoppel,  241. 

Enjoining  prevention  of  erection  of  wooden 
building  within,   see  Injunction,  346. 

Injunction  to  restrain  municipality  from 
removing  wooden  building  erected  with- 
in, see  Injunction,  313. 

Injunction  against  erection  of  wooden 
building  within,  see  Nuisances,  141. 

Summary  abatement  of  wooden  building 
within,  see  Nuisances,  168. 


FIREMEN. 


See  Fire  Departmknt. 
Digest   1-52  L.R.A.(N.S.) 


FIRES. 

Loss  by,  of  property  bailed,  see  Action  or 
Suit,  108;  Bailment,  23;  Evidence, 
450. 

Injury  to  growing  plants  from  frost  because 
of  negligent  burning  of  protecting 
cover,  see  Act  of  God,  2. 

As  to  fire  escapes  on  buildings,  see  Build- 
ings, I,  b. 

Limiting  height  of  buildings  as  protection 
against  fire,  see  Buildings,  7. 

Establishing  fire  limits  for  buildings,  see 
Fire  Limits. 

Carriers  liability  for  loss  by,  see  Carriers, 
754,  804,  805,  847-849,  858,  859. 

Giving  fire  protective  association  grant  of 
right  of  way  in  public  streets,  see  Con- 
stitutional Law,  ICO. 

Constitutionality  of  regulations  to  prevent, 
see  Constitutional  Law,  197. 

Subrogation  of  railroad  company  to  re- 
sponsibility for  loss  by  fire  to  insur- 
ance thereon,  see  Constitutional  Law, 
465. 

Validity  of  agreement  by  lessee  of  railroad 
property  to  assume  risk  of,  see  Con- 
tracts, 498. 

Rates  for  water  for  fire  purposes,  see  Corpo- 
rations, 146,  147. 

Judicial  review  of  municipal  ordinance,  see 
Courts,  166. 

Measure  of  damages  for  destruction  of 
meadow  by,  see  Damages,  460. 

Damages  for  injury  to  trees  by,  see  Dam- 
ages, 473,  474. 

Destruction  of  poll  books  by,  see  Elec- 
tions, 17. 

Taking  private  property  in  providing  for 
fire  lines  along  railroad  right  of  way, 
see  Eminent  Domain,  213. 

Presumption  of  negligence  as  to,  see  Evi- 
dence, 398-403,  464. 

Evidence  generally  in  action  for  loss  re- 
sulting from,  see  Evidence.  717,  764. 

Evidence  of  other  fires,  see  Evidence,  1860- 
1862. 

Admissibility  of  report  by  railroad  station 
agent  as  to  cause  of  fire,  see  Evidence, 
827. 

Opinion  evidence  as  to  cause  of,  see  Evi- 
dence, 1198. 

Sufficiency  of  evidence  as  to  cause  of,  see 
Evidence,  2061-2066. 

Weight  of  opinion  evidence  as  to  danger  of, 
see  Evidence,  2114. 

Sufficiency  of  evidence  to  show  time  of,  see 
Evidence,  2334. 

Liability  for  injury  to  infant  by,  see  Evi- 
dence, 1414;  Negligence,  139-141. 

Matters  as  to  fire  department,  see  Fike  De- 
partment. 

Liability  of  gas  company  for  failure  to 
shut  off  gas  from  premises  during,  see 
Gas,  55. 

Caused  by  explosion  of  gas,  see  Gas,  59. 

Mandatory  injunction  to  compel  extinguigh- 
ment  of  fire  in  mine,  see  iNJUNcnaN, 
31,  32. 

Loss  of  property  of  guest  at  hotel  through 
fire,  see  Innkeepers,  18. 

Insurance  against  loss  by,  see  Insurauck. 


FIRES. 


1301 


Violation  of  Sunday  closing  law  by  enter- 
ing saloon  to  replenish  fire,  see  Intoxi- 
cating Liquors,  163. 

Saloon  keeper's  lialjility  for  bar  tender's 
act  in  setting,  see  Master  and  Serv- 
ant, 941,  942. 

Master's  liability  for  damages  by  fire  set  by 
servant,  see  Master  and  Servant,  891, 
903,  904. 

Liability  of  master  for  injury  from  fire  set 
out  by  independent  contractor,  see  Mas- 
ter and  Servant,  997,  1017-1023. 

Servant's  liability  for  negligence  as  to,  see 
Master  and  Servant,  1045,  1046. 

Ordinance  designed  to  prevent,  see  Munici- 
pal Corporations,  198,  207-209,  211, 
294. 

Municipal  liability  for,  see  Municipai  Cor- 
porations, 330-332. 

Liability  of  city  for  injury  by,  because  of 
negligence  of  waterworks  employees, 
see  Municipal  Corporations,  414. 

Manufacturer's  liability  to  purchaser  of 
substance  igniting  in  process  of  manu- 
facture, see  Negligence,  56. 

Effect  of  destruction  of  building  by,  on 
easement  of  adjoining  owner  in  party 
wall,  see  Party  Wall,  22,  23. 

Demurrer  to  allegation  that  owner  of 
building  had  failed  to  provide  means 
for   extinguishing,   see   Pleading,    584. 

Proximate  cause  of  loss  or  injury  by,  see 
Proximate  Cause,  II.  a. 

Liability  of  railroad  for,  set  Railroads, 
11.  d,  7;  II.  e,  5. 

Burning  of  warehouse  by  railroad's  use  of 
fire  to  destroy  weeds,  see  Railroads, 
21. 

Destruction  by,  of  property  preventing  com- 
pletion of  sale,  see  Sale,  14. 

Effect  of  injury  to  property  by  fire  on  right 
to  specific  performance  of  contract,  see 
Specific  Performance,  98. 

■Question  for  jury  as  to  negligence  in  set- 
ting, see  Trial,  130,  570-572. 

Destruction  of  goods  in  warehouse  by;  see 
Trial,  559;    Warehouseman,   8-10. 

Destruction  of  timber  by,  see  Trial,  991. 

Who  must  bear  loss  by,  as  between  vendor 
and  purchaser,  see  Vendor  and  Pur- 
chaser, 21-25. 

Duty  of  water  company  to  furnish  water 
for  extinguishment  of,  see  Waters, 
357-359,   370-372,  377-398 

1.  To  maintain  an  action  for  damages 
sustained  by  fire  which  originated  on  the 
premises  of  another,  it  is  necessary,  as  a 
general  rule,  to  show  that  the  fire  was  un- 
lawfully kindled  or  negligently  started  or 
guarded  by  the  latter.  Beckham  v.  Sea- 
board Air  Line  R.  Co.  12:  476,  56  S.  E.  038, 
127  Ga.  5.50. 

2.  One  who  sets  out  a  fire  on  his  own 
premises,  without  taking  such  precaution 
as  a  reasonable  man  should  to  prevent  it 
from  spreading  to  his  neighbor's  premises, 
is  negligent;  and  the  fact  that  rorty-eight 
hours  intervened  between  the  setting  out  of 
the  fire  apd  the  time  it  spread  to  those 
premises  does  not  in  itself  necessarily  ac- 
Sigest  1-52  L.R.A.(N.S.) 


quit  him  of  negligence.    Hawkins  v.  Collins, 
36:  194,   131   N.  W.   187,  89   Neb.   140. 

(Annotated) 

3.  One  who  failed  to  exercise  ordinary 
skill  and  care  in  controlling  a  fire  originat- 
ing upon  his  premises  cannot  avoid  liability 
for  damages  suffered  by  another  to  whose 
lands  the  fire  spread,  upon  the  ground  that 
the  latter  did  not  attempt  to  prevent  the 
fire  from  crossing  the  boundaries  and  reach- 
ing his  land.  Mahaffey  v.  J.  L.  Rumbarger 
Lumber  Co.  8:  1263,  56  S.  E.  893,  61  W.  Va. 
571. 

4.  One  setting  fire  upon  his  premises 
is  charged  with  the  duty  of  exercising  ordi- 
nary care  and  skill  in  preventing  it  from 
spreading  and  being  communicated  to  the 
property  of  another;  and  if  he  fails  to  ex- 
ercise such  care  he  is  liable  for  the  dam- 
ages inflicted  upon  property  of  another  to 
whose  premises  the  fire  is  communicated. 
Mahaffey  v.  J.  L.  Rumbarger  Lumber  Co. 
8:  1263,  56  S.  E.  893,  61  W.  Va.  571. 

5.  In  an  action  to  recover  the  value  of 
property  destroyed  by  fire  alleged  to  have 
been  negligently  permitted  to  escape  from 
the  lands  of  the  defendant,  a  defense  that 
the  loss  was  occasioned  by  a  sudden  shift 
of  the  wind  is  not  available,  unless  the 
change  of  the  wind  was  unusual  and  ex- 
traordinary and  such  as  in  its  nature  could 
not  haxe  been  reasonably  expected.  Mahaf- 
fey v.  J.  L.  Rumbarger  Lumber  Co.  8:  1263, 
56  S.  E.  893,  61  W.  Va.  571. 

6.  An  owner  of  premises,  who  discov- 
ers a  fire  in  progress  thereon,  for  the  kin- 
dling of  which  he  is  not  responsible,  is  not 
bound  to  exercise  more  than  ordinary  care 
and  diligence  to  prevent  it  from  spreading. 
Baird  v.  Chambers,  6:  882,  109  N.  W.  61, 
15  N.  D.   618.  (Annotated) 

7.  One  upon  whose  lands  a  fire  is  started 
by  a  trespasser,  or  by  some  person  with 
whom  he  is  in  no  wise  connected,  is  under 
no  duty  to  the  adjoining  owners  to  extin- 
guish or  control  it.  Mahaffey  v.  J.  L.  Rum- 
barger Lumber  Co.  8:  1263,  56  S.  E.  893,  61 
W.  Va.  571. 

8.  A  landowner  who  negligently  allows 
a  fire  started  by  him  or  his  agents,  to  es- 
cape to  the  lands  of  another  on  which  it  de- 
stroys property,  is  liable  therefor,  although, 
after  leaving  his  premises,  the  fire  passes 
over  intervening  lands  before  inflicting  the 
damage  complained  of.  Mahaffey  v.  J.  L. 
Rumbarger  Lumber  Co.  8:  1263,  56  S.  E. 
893,  61  W.  Va.  571. 

9.  A  statute  forbidding  the  setting  fire 
to  any  woods,  prairies,  or  other  grounds 
does  not  prevent  a  railroad  company,  whose 
statutory  duty  is  to  keep  its  right  of  way 
clear  from  dead  grass,  dry  weeds,  or  other 
dangerous,  combustible  material,  from  us- 
ing fire  to  accomplish  that  result.  Chock- 
ley  V.  Illinois  C.  R.  Co.  44:  1127,  100  N.  E. 
942,  257  111.  491. 

10.  Under  a  statute  making  the  owner 
of  land  liable  for  injury  to  neighboring 
property  by  fire  wilfully  or  negligently  per- 
mitted to  escape  therefrom,  the  owner  is 
not  answerable  for  fire  escaping  from  prop- 
erty  in  possession  of  a  tenant  unless   he 


1302 


FIRES. 


knew  of  the  existence  of  a  fire  thereon,  or 
had  knowledge  of  facts  which  wouUl  charge 
him  with  notice  that  the  danger  of  sucli 
fire  breaking  out  thereon  was  imminent. 
Rogers  v.  Parker,  34:955,  123  N.  W.  1109, 
159  Mich.  278. 

11.  A  railroad  company  is  not  liable  for 
the  loss  of  property  destroyed  by  fire  com- 
municated to  it  from  a  burning  wooden 
l)uilding  on  the  company's  premises,  because 
it  refused  to  attempt  to  remove  its  ignited 
building  by  the  aid  of  a  locomotive  standing 
near  by,  where  it  does  not  appear  that 
this  was  possible.  Beckham  v.  Seaboard 
Air  Line  R.  Co.  12:  476,  56  S.  E.  638,  127  Ga. 
550. 

Liability  in  case  of  joint  fires. 
See  also  Railboads,  198. 

12.  One  who  negligently  seta  a  fire  is 
responsible  for  the  injury  done  by  it  al- 
though it  is  joined  by  a  fire  set  by  anothei 
person  and  the  two  concurrently  do  the 
injury,  if  it  appears  that  the  first  one  would 
have  caused  the  injury  without  the  assist- 
ance of  the  second;  at  least  if  it  does  not 
appear  that  the  second  fire  would  have 
caused  the  loss  without  the  aid  of  the  first. 
Miller  v.  Northern  P.  R.  Ck).  48:  700,  135 
Pac.  845,  24  Idaho,  567.  (Annotated) 

13.  The  owner  of  a  smokestack  is  not 
liable  for  fire  set  by  a  spark  from  it  un- 
less he  is  shown  to  have  failed  to  exercise 
ordinary  care  in  the  construction,  mainte- 
nance, or  operation  of  the  plant,  in  view  of 
the  conditions  of  the  surrounding  property. 
American  Ice  Co.  v.  South  Gardiner  Lum- 
ber Co.  32:  1G03,  79  Atl.  6,  107  Me.  494. 

(Annotated) 

14.  The  owner  of  a  lumber  yard  cannot 
be  held  negligent  in  the  construction  of  a 
smokestack  of  a  certain  height  without  a 
spark  arrester,  so  as  to  be  liable  for  fire 
set  by  a  spark  from  it,  where  the  stack 
and  furnace  were  constructed  on  approved 
plans,  and,  for  a  period  of  seventeen  years, 
no  live  spark  was  known  to  have  come 
from,  or  fire  to  have  been  set  by,  it,  al- 
though it  was  surrounded  by  a  large  amount 
of  highly  inflammable  material,  and  in  the 
opinion  of  an  expert,  it  should  have  been 
higher  and  had  a  spark  arrester.  American 
Ice  Co.  V.  South  Gardiner  Lumber  Co.  32: 
1003,  79  Atl.  6,  107  Me.  494. 

From  threshing  engine. 

15.  The  owner  of  a  threshing-machine  en- 
gine does  not  fulfil  his  duty  in  regard  to  pre- 
cautions to  avoid  setting  fires  by  merely 
adopting  a  spark  arrester  in  general  use,  and 
showing  that  the  engine  did  not  emit  sparks 
any  more  copiously  than  was  natural  for 
an  engine  of  similar  kind  and  construction, 
where  he  had  been  in  the  habit  of  making 
use  of  an  additional  spark  arrester  when 
working  near  material  of  the  kind  of  which 
fire  was  set,  and  which  was  allowed  to  be- 
come out  of  order  at  the  time  the  fire  oc- 
curred. Martin  v.  McCrary,  i :  530,  89  S.  W. 
324,  115  Tenn.  316.  (Annotated) 

16.  The  owner  of  a  threshing-machine  en- 
gine must  make  at  least  daily  inspection 
of  his  spark  arresters  when  he  is  working 
near  combustible  material.  Martin  v.  Mc- 
Digest  1-52  L.R.A..(M.S.) 


Crary,  i:  530,  89  S.  W.  324,  115  Tenn.  316. 

17.  One  who  has  contracted  to  thresh 
grain  with  a  steam  thresher  must,  to  avoid 
setting  fires,  use  care  commensurate  with 
the  risk  or  hazard.  Martin  v.  McCrary.  i: 
530,  89  S.  W.  324,  115  Tenn.  310. 
Interfering  with  extinguishment  of. 
Sufficiency  of  evidence  in  action  for,  see  Evi- 
dence, 2058,  2157. 

Demurrer   to   complaint   in   action   for,   see 

Pleading,  326. 
Negation  of  contributory  negligence  in   ac- 
tion for,  see  Pleading,  344. 

18.  The  violation  by  a  railroad  company 
of  a  statute  forbidding  the  obstruction  of 
street  crossings  in  cities  is  negligence,  as 
matter  of  law,  as  against  the  owner  of  a 
house  destroyed  by  fire,  because  of  failure 
of  the  fire  department,  whose  progress  was 
interfered  with  by  the  obstruction,  to  reach 
it  in  time  to  extinguish  the  fire.  Houren  v. 
Chicago,  M.  &  St.  P.  R.  Co.  20:  mo,  86  N. 
E.  611,  236  111.  620.  (Annotated) 

19.  A  railroad  company  cannot  avoid  lia- 
bility for  loss  of  a  building  by  fire  on  ac- 
count of  its  delaying  the  fire  department  by 
maintaining  a  train  across  the  street  be- 
cause the  policeman  might  have  cleared  the 
crossing.  Houren  v.  Chicago,  M.  &  St.  P. 
R.  Co.  20:  mo,  86  N.  E.  611,  236  111.  620. 

20.  A  railroad  company  which  permits 
a  train  to  stand  on  a  street  crossing  in 
violation  of  statute  is  liable  for  injury  done 
to  private  property  through  the  inability 
of  the  city  fire  apparatus  to  reach  it  because 
of  such  obstruction.  Cleveland,  C.  C.  &  St. 
L.  R.  Co.  V.  Tauer,"  39:  20,  96  N.  E.  758,  176 
Ind.    621.  (Annotated) 

21.  The  refusal  of  the  engineer  of  a 
train,  who,  after  stopping  on  signal,  is  in- 
formed that  a  fire  is  in  progress,  with  the 
extinguishment  of  which  the  operation  of 
his  train  will  interfere,  to  cut  or  back  the 
train,  which  is  being  closely  followed  by  an- 
other, and  his  decision  to  pull  ahead  out  of 
the  way  as  rapidly  as  possible,  will  not  ren- 
der the  railroad  company  liable  for  loss 
caused  by  delay  in  the  eff"orts  to  extinguish 
the  fire.  American  Sheet  &  Tin  Plate  Co. 
v.  Pittsburgh  &  L.  E.  R.  Co.  12:  382,  143 
Fed.  789,  75  C.  C.  A.  47.  (Annotated) 

22.  Actual  knowledge,  or  facts  from 
which  it  can  be  imputed,  must  exist  on  the 
part  of  those  in  charge  of  a  railroad  train, 
of  a  fire  with  the  extinguishment  of  which 
the  operation  of  the  train  will  interfere,  to 
charge  the  railroad  company  with  liability 
for  interference  with  the  extinguishment  by 
such  operation.  American  Slieet  &  Tin 
Plate  Co.  v.  Pittsburgh  &  L.  E.  R.  Co.  12: 
382,  143  Fed.  789,  75  C.  C.  A.  47. 

23.  A  railroad  company  which,  in  the  or- 
dinary course  of  its  business,  stops  a  train 
I  tween  a  hydrant  and  a  burning  building, 
without  notice  of  any  intention  on  the  part 
of  anyone  to  run  a  hose  from  the  hydrant  to 
the  fire,  owes  no  duty  to  the  owner  of  the 
burning  building  to  move  the  train  before 
the  conductor  has  received  his  proper  clear- 
ance card,  for  which  he  stopped,  and  can- 
not therefore  be  held  liable  for  injury  to  the 
building   because    of    its    failure    so    to    do. 


FIREWOKKS— FISHERIEJS,  1.  b. 


1303 


Louisville  &  N.  R.  Co.  v.  Scruggs,  23:  184,  49 
So.  399,  161  Ala.  97. 

24.  The  firemen  of  a  fire  department  in 
a  city  are  not  the  servants  or  agents  of  the 
person  whose  property  they  attempt  to  save 
from  fire,  so  that  their  negligence  in  failing 
to  take  the  proper  course  in  the  extinguish- 
ment of  the  fire  avails  one  who,  by  a  negli- 
ge t  act,  cut  off  the  water  supply  by  which 
the  fire  was  being  successfully  subdued,  and 
thereby  proximately  caused  the  destruction 
of  the  property.  Erickson  v.  Great  North- 
ern R.  Co.  39:  237,  135  N.  W.  1129,  117 
Minn.  348.  (Annotated) 
Contributory  negligence. 

25.  One  owning  property  abutting  on  a 
public  street  who  knows  that  inflammable 
material  has  been  deposited  in  the  street 
in  such  manner  as  to  endanger  his  prop- 
erty, must  make  all  reasonable  efforts  to 
protect  his  property  from  the  impending 
danger.  Charles  Eneu  Johnson  Co.  v.  Phil- 
adelphia, 42:  512,  84  Atl.  1014,  236  Pa.  510. 


FIREAVORKS. 


Killing  of  passenger  by  explosion  of,  see 
Carrieks,  235. 

Liability  of  municipality  for  negligence  in 
discharge  of,  see  Highways,  204;  Mu- 
nicipal  Corporations,   349,    350,   360. 

Liability  for  negligence  of  independent  con- 
tractor in  setting  off,  see  Master  and 
Servant,  1009. 

Display  of,  as  nuisance,  see  Nuisances,  54. 

Proximate  cause  of  injury  resulting  from 
explosion  of,  see  Proximate  Cause,  66. 

Question  for  jury  as  to  negligence  in  dis- 
play of,  see  Trial,  573. 

The  proprietor  of  a  pleasure  resort 
is  not  negligent  in  fixing  the  place  from 
which  patrons  are  to  view  a  display  of  fire- 
works at  300  to  400  feet  from  where  the 
display  is  given.  Reisman  v.  Public  Service 
Corp.  (N.  J.  Err.  &  App.)  38:  922,  81  Atl. 
838,  82  N.  J.  L.  464. 


FIRM. 


See  Partnership. 


FISHERIES. 

I.  Public  flsheriea  generally,    1—8. 

a.  In  general,   1. 

b.  Regulation  and  protection,  2— 

8. 
II.  Private  rights,   9—17. 
III.  Shell  fish,  oysters,  and  clams,  18— 
20. 

Appropriation  to  pay  salary  of  state  game 
and  fish  warden,  see  Appropbiations, 
3,  4. 

Digest  1-52  I,.R.A.(N.S.) 


Confiscation  of  net,  see  Constitucxonal 
Law,  610. 

Right  of  owner  to  cut  new  channel  for 
stream  across  property  and  convert  old 
channel  into  fish  ponds,  see  Waters, 
33. 

Application  of  statute  entitling  shore  own- 
er to  control  fishing  opposite  his  land, 
see  Waters,  143. 

Destruction  of  fishing  by  pollution  of  water, 
see  Waters,  213. 

/.  Public  fisheries  generally. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  A  constitutional  declaration  that  un- 
appropriated water  in  natural  streams  is 
public  property  subject  to  appropriation  does 
not  confer  a  public  right  of  fishery  in 
streams  flowing  through  private  property. 
Hartman  v.  Tresise,  4:  872,  84  Pac.  685,  36 
Colo.   146. 

6.  Regulation  and  protection. 

(See  also  same  heading  in  Digest  LJt.A. 
1-10.) 

Jurisdiction  to  punish  for  fishing  without 
license,  see  Boundaries,  3. 

Review  by  court  of  statute  for  protection  of 
fish,  see  Courts,  105. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  185,  186,  199, 
287,  288. 

Discrimination  against  nonresidents  of 
county  in  regulations  as  to,  see  Con- 
stitutional Law,  199. 

Requiring  license  for  privilege  of  fishing  for 
profit,  see  Constitutional  Law,  288; 
License,  88. 

Due  process  in  regulations,  see  Constitu- 
tional Law,  527. 

Protection  of  fish  in  exercise  of  police  power, 
see  Constitutional  Law,  656-658. 

Legislative  power  to  create  public  right  of 
fishing  in  stream,  see  Eminent  Do- 
main, 234,  235. 

2.  No  constitutional  privilege  or  im- 
munity or  property  rights  of  the  citizen  are 
interfered  with  by  prohibiting  fishing  in  the 
public  waters  of  the  state.  State  v.  Tice, 
41:469,  125  Pac.  168,  69  Wash.  403. 

3.  Fishery  in  the  tidal  waters  of  a  state 
is  subject  to  public  regulation,  and  can  be 
exercised  only  at  such  times  and  by  such 
methods  as  the  legislature  may  see  fit  to 
permit.  Daniels  v.  Homer,  3:  997,  51  S.  E. 
992,  139  N.  C.  219. 

Pollution  of  Tcaters. 

Indictment  for  pollution  of  waters,  see  In- 
dictment, Information  and  Com- 
plaint, 62. 

See  also  Commissioners,  1;  Constitution- 
al Law,  96,  584;  Waters,  8. 


1304 


FISHERIES,  II.,  III. 


4.  The  legislature  may  forbid  the  cast- 
ing of  sawdust  into  streams,  for  the  preser- 
vation of  the  edible  fish.  Com.  v.  Sisson, 
1:752,  75   N.   E.   619,   189   Mass.   247. 

(Annotated) 

5.  The  unrestrained  exercise  for  thirty 
years  of  the  right  to  cast  sawdust  into  a 
stream  gives  no  prescriptive  rights  which 
will  interfere  with  the  public  right  to  regu- 
latfe  such  use  for  the  preservation  of  food 
fishes.  Com.  v.  Sisson,  i:  752,  75  N.  E.  619, 
189  Mass.  247. 

6.  Under  a  statute  making  it  unlawful 
to  throw  "sawdust  or  any  other  matter  del- 
eterious to  the  propagation  of  fish,"  into  a 
stream,  the  deleterious  matter  referred  to 
is  not  limited  to  such  as  possesses  the  same 
hurtful  qualities  as  sawdust,  but  includes 
sulphur  or  mine  water  drained  from  a  mine. 
State  V.  Southern  Coal  &  Transp.  Co.  43: 
401,  76  S.  E.  970,  71  W.  Va.  470. 

7.  The  fact  that  a  statute  requires  the 
drainage  of  mines  does  not  authorize  the 
mine  owner  to  dispose  of  the  copperas  and 
sulphur  water  therein  by  emptying  it  into 
a  stream  in  violation  of  another  statute 
which  prohibits  the  emptying  into  streams 
of  matter  deleterious  to  fish.  State  v. 
Southern  Coal  &  Transp.  Co.  43:  401,  76 
S.  E.  970,  71  W.  Va.  470. 

Mode    of   fishiiie:. 

8.  A  municipal  corporation  has  no 
power  to  forbid  the  taking  of  fish  with  a 
net  from  tide  water  within  its  limits  within 
a  certain  distance  from  wharves,  for  the 
purpose  of  making  them  more  advantageous 
places  from  which  to  fish.  Ex  parte  Bailey, 
31:  534,  101  Pac.  441,  155  Cal.  472. 

II.  Private  rights. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Validity  of  grant  of  exclusive  right  of  fish- 
ery to  shore  owner,  see  Constitutional 
Law,  185. 

9.  The  owner  of  the  bed  of  a  natural 
fresh-water,  nontidal  stream  has  the  ex- 
clusive right  of  fishery  therein.  Hartman 
V.  Tresise,  4:  872,  84  Pac.  685,  36  Colo.  140. 

10.  The  owner  of  land  covered  by  water 
has  the  exclusive  right  to  hunt  and  fish 
over  it.  Schulte  v.  Warren,  13:  745,  75  N. 
E.  783,  218  III.  108. 

11.  The  mere  fact  that  a  right  of  naviga- 
tion arises  in  the  public  by  the  raising  of 
water  over  private  property  by  the  improve- 
ment of  an  adjoining  river  does  not  carry 
with  it  the  right  to  hunt  and  fish  upon  the 
property.  Schulte  v.  Warren,  13:  745,  75  N. 
E.  783,  218  111.   108. 

12.  That  principle  of  the  common  law  of 
England  which  vested  the  title  to  ponds, 
and  the  right  of  fishing  and  fowling  there- 
on, in  the  riparian  owner,  was  never  in 
force  in  Maine  so  far  as  ponds  of  more 
than  10  acres  in  extent  were  concerned,  but 
in  that  state  the  right  to  free  fishing  and 
fowling  on  such  ponds  has  always  lielonged 
to  the  public,  or  if  it  has  not  alwavs  ex- 
Digest   1-52  I<.R.A.(N.S.) 


isted,  it  has  become  vested  in  the  public 
by  the  acquie.scence  of  the  riparian  owners. 
Conant  v.  Jordan,  31:  434,  77  Atl.  938,  107 
Me.  227.  (Annotated) 

13.  A  shore  owner  cannot  acquire  a  sev- 
eral fishery  in  tide  water  as  again.st  tlie 
public,  by  a  custom  among  fishermen  that 
the  shore  owner  who  shall  clear  out  a  fish- 
ing place  in  front  of  his  property  shall 
have  the  exclusive  right  of  fishing  theri'. 
Hurae  v.  Rogue  River  Packing  Co.  31:  396, 
92  Pac.  1065,  96  Pac.  865,  51  Or.  237. 

14.  The  state  does  not,  by  reserving  by 
statute  the  right  to  regulate  the  building 
of  wharves  or  the  taking  of  shellfish  when 
granting  lands  covered  by  tide  water  to 
an  individual,  convey  to  him  the  exclusive 
right  to  take  floating  fish  over  such  land, 
although  his  deed  contains  a  warranty 
clause.  Hume  v.  Rogue  River  Packing  Co. 
31:  396,  92  Pac.  1065,  96  Pac.  865,  51  Or.  237. 

15.  Where  the  owner  of  land  bordering 
on  waters  which  are  navigable  in  fact  has 
no  title  to  the  soil  under  them,  the  right 
of  fishery  as  well  as  that  of  navigation  is 
in  the  public,  and  not  in  him.  Hume  v. 
Rogue  River  Packing  Co.  31:  396,  92  Pac. 
1065,  96  Pac.  865,  51  Or.  237.  (Annotated) 
Prescriptive  rights. 

Prescriptive  right  to  cast  sawdust  into 
stream,  see  supra,  5. 

16.  Where  the  state  has  never  author- 
ized the  grant  of  an  exclusive  right  of  fish- 
ery in  tide  waters,  no  prescriptive  right 
thereto  can  be  acquired,  since  the  presump- 
tion of  grant  which  is  the  basis  thereof 
cannot  exist.  Hume  t.  Rogue  River  Pack- 
ing Co.  31:  396,  92  Pac.  1065,  96  Pac.  865, 
51  Or.  237. 

17.  The  exercise  of  a  fishing  right  by 
means  of  nets,  not  aflBxed  to  the  soil  in 
front  of  his  property,  by  the  owner  of  land 
bordering  on  tide  water,  is  not  adverse  to 
the  public  and  the  state,  since  he  is  merely 
exercising  a  right  to  which  he  is  entitled 
as  one  of  the  public,  and  it  is  immaterial 
that  he  warns  intending  fishermen  away. 
Hume  V.  Rogue  River  Packing  Co.  31:  396, 
92  Pac.  1065,  96  Pac.  865,  51  Or.  237. 

III.  Shell  fish,  oysters,  and  clams. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  287. 

Right  to  enjoin  sailing  over  oyster  beds,  see 
Injunction,  218. 

Construction  of  statute  giving  right  to 
plant  oysters  in  public  waters,  see  Wa- 
ters, 88. 

Interference  with,  by  improvement  of  navi- 
gation, see  Waters,  100. 

Rights  and  duties  of  person  planting  oys- 
ters, see  Waters,  137.  '  ^ 

'.  ^' 

18.  One  who,  under  an  oyster  law  pro- 
viding for  the  granting  of  rights  to  plant 
oysters  subject  to  those  already  existing, 
secures  from  the  state  a  lease  of  land  to  be 
planted    with    oysters    aijoining    property 


FITNESS— FIXTURES,  II. 


1305 


which  has  been  devoted  by  a  corporation., 
under  its  charter  authority,  to  shipbuilding 
purposes,  takes  subject  to  the  right  of  the 
corporation  to  do  the  dredging  necessary  to 
render  its  property  available  for  its  charter 
purposes.  Newport  News  Shipbuilding  & 
Dry  Dock  Co.  v.  Jones,  6:  247,  54  S.  E.  314, 
105  Va.  503.  (Annotated) 

Regula-tion  and  protection. 
Due  process  of  law  as  to,  see  Constitution- 
al Law,  527. 

19.  A  provision  of  a  statute  making  it  a 
misdemeanor  to  have  in  possession  oysters 
of  less  than  a  certain  size  is  not  inapplica- 
ble to  oysters  taken  from  private  beds  be- 
cause a  p:ior  provision  relating  to  culling 
lequires  a  return  of  unmerchantable  oysters 
to  their  natural  beds  or  bar,  where  it  is  com- 
mon knowledge  that  almost  the  entire  catch 
of  oysters  in  the  market  is  taken  from 
natural  beds,  and  almost  all  private  lots 
which  have  been  located  have  been  planted 
for  private  use.  Windsor  v.  State,  12:  869, 
64  Atl.  288,  103  Md.  611. 

20.  A  statute  relating  to  the  culling  of 
oysters,  which  requires  a  return  of  unmer- 
chantable ones  "to  the  ground  or  rocks 
whence  taken,"  cannot,  in  using  those  words, 
be  presumed  to  refer  only  to  beds  belonging 
to  the  public,  on  the  theory  that  the  state 
would  have  no  interest  in  returning  unmer- 
chantable oysters  to  private  beds,  where  the 
oysters  may  be  inspected  under  circum- 
stances such  tliat  it  would  be  impossible  to 
determine  where  they  were  taken.  Windsor 
V.  State,  12:  869,  64  Atl.  288,  103  Md.  611. 


FITNESS. 

Presumption    as    to    father's   wnfitneas    for 

custody  of  child,  see  Evidence,  123. 
Warranty  of,  see  Sale,  II.  c. 


FIXED  LIABILITY. 

What    constitutes    fixed    liability    against 
bankrupt,   see   Bankeuptcy,  "  119-122. 


FIXTURES. 


I.  General  rules. 
II.  What  are,   generally,   1—13. 
III.  Between    vendor    and    purchaser , 

14. 
IV.  Between  landlord  and  tenant,  IS- 
IS. 
V.  Effect  of  mortgage,    19—26. 
VI.  Remedy. 

Right  of  third  person  to  remove  as  breach 
of  covenant  in  deed  of  real  property,  see 
Covenants  and  Conditions,  30,  55. 

Injunction  against  removal  of,  see  Injunc- 
tion, 205-207. 

Mechanics'  lien  for,  see  Mechanics'  Liens, 
46. 

Digest  1-52  L.R.A.(N,S.) 


To  whom  cottages  placed  on  posts  should  be 

listed  for  taxation,  see  Taxes,  168. 
Question  for  jury  as  to,  see  Tkial,  260,  261. 

/.  General  intles. 

(See  same  heading  in  Digest  L.R.A.  1-70.) 

II.  What    are,    generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-tO.) 

What  constitutes  fixtures  within  meaning  of 
bulk  sales  law,  see  Fbaudulent  Con- 
veyances, 19. 

1.  Building  material,  finishing  lumber, 
doors,  and  transoms  belonging  to  the  owner 
of  an  unfinished  building,  and  left  therein 
for  the  purpose  of  completing  it,  pass  with 
a  deed  of  the  realty,  although  not  yet  fas- 
tened thereto.  Rahm  v.  Domayer,  15:  727, 
114  N.  W.  546,  137  Iowa,  18.     (Annotated) 

2.  Brick  manufacturing  machinery, 
sold  under  a  conditional-sale  contract  which 
is  duly  recorded,  and  which  reserves  title 
in  the  vendor  until  the  purchase  price  is 
fully  paid,  and  provides  that  the  title  there- 
to shall  not  be  affected  by  the  delivery  and 
erection  thereof,  and  that,  in  default  of 
payment,  the  vendor  shall  have  the  right 
to  enter  and  take  possession,  does  not  be- 
come a  part  of  the  real  estate  by  being 
placed  in  a  building,  and  annexed  in  such 
a  manner  as  to  be  removable  without  in- 
juring the  support  of  such  building,  the 
foundation,  walls,  or  other  part  of  the  real 
estate  to  which  it  is  attached,  so  as  to 
pass  to  a  subsequent  purchaser  of  the  real 
estate.  LaAvton  Pressed  Brick  &  Tile  Co. 
V.  Ross-Kellar  Triple  Pressure  Brick  Mach. 
Co.  49:  395,  124  Pac.  43,  33  Okla.  59. 

(Annotated) 

3.  One  furnishing  appliances  to  a  con- 
tractor to  become  a  part  of  an  electric  light 
plant  which  he  is  constructing  for  a  munici- 
pality, with  knowledge  of  the  use  to  which 
they  are  to  be  put,  is  bound  to  give  the  mu- 
nicipality actual  notice  of  his  intention  to 
reserve  the  title  until  the  purchase  price  is 
paid  in  order  to  enforce  it  against  the  mu- 
nicipality after  the  appliance  has  been  at- 
tached to  the  realty,  and  the  question  of 
what  has  been  paid  the  contractor  by  the 
municipality  is  immaterial.  Allis-Chalmers 
Co.  V.  Atlantic,  52:  561,  144  N.  W.  346,  164 
Iowa,  8.  (Annotated) 
Shelving,  sIioTir  cases,  etc. 

4.  Shelving  nailed  and  fastened  to  the 
walls  of  a  store  house,  and  large  counters, 
tables,  and  a  meat  box  placed  therein,  to 
carry  out  the  purpose  for  which  the  build- 
ing was  erected,  and  designed  to  be  per- 
manently used  in  connection  with  it,  become 
a  part  of  the  realty,  although  they  might 
be  removed  without  being  injured  and  with- 
out injury  to  the  building.  Brigham  v. 
Overstreet,  10:  452,  57  S.  E.  484,  128  Ga. 
447. 

5.  A  sale  for  partition  will  pass  title  to 
show  cases,  racks,  and  hangers  attached  by 


130G 


FIXTURES,  III.,  IV. 


the  owner  to  the  building  to  aid  in  the 
prosecution  of  his  business,  with  the  in- 
tention tiiat  they  shall  become  permanently 
a  part  of  the  building.  Owings  v.  Estes, 
43:  675,  100  N.  E.  205,  256  111.  553. 

(Annotated) 
Buildings. 

Necessity  of  pleading  estoppel  of  true  owner 
to   assert   claim  to  house  attached  to 
real  estate,  see  Pleading,  478. 
See  also  infra,  18. 

8.  A  sugar-cane  mill  erected  upon  a 
farm  by  the  owner,  by  placing  four  large 
lightwood  posts  firmly  in  the  ground,  and 
fastening  the  mill  to  them  by  spikes  driven 
through  holes  in  the  mill  and  into  the 
posts;  and  a  sugar-cane  boiler  placed  in  a 
brick  furnace  which  is  on  the  ground,  but 
the  chimney  of  which  runs  up  through 
and  above  the  roof  of  the  sugar-mill  house, 
— become  a  part  of  the  realty.  Brigham 
V.  Overstreet,  10:  452,  57  S.  E.  484,  128  Ga. 
447. 

7.  The  presumption  is  that  a  frame  fac- 
tory building  placed  upon  the  land  of  an- 
other, with  the  landowner's  license,  with 
no  agreement  respecting  its  subsequent 
ownership,  remains  the  property  of  the 
party  annexing  it;  and  it  is  removable  by 
him.  King  v.  Morris  (N.  J.  Err.  &  App.) 
14:  439,  68  Atl.  162,  74  N.  J.  L.  810. 

(Annotated) 

8.  No  title,  as  against  the  true  owner, 
can  be  conferred  by  the  owner  of  real  es- 
tate upon  a  bona  fide  purchaser  thereof  to 
a  building  which  the  owner  of  the  realty 
had  wrongfully  seized,  and  moved  upon 
and  attached  to  his  property.  Eisenhauer 
V.  Quinn,  14:  435,  93  Pac.  38,  36  Mont.  368. 

(Annotated) 
Machinery. 

Effect  of  mortgage,  see  infra,  24-26. 
Machinery  attached  to  property  under  con- 
ditional sale,  see  Sale,  46,  156-158. 
See  also  supra,  6. 

9.  An  old,  partially  broken  sugar-cane 
boiler  placed  under  a  building  in  a  large 
horse  stable,  and  supplied  with  water  from 
a  well,  and  used  as  a  watering  place  for 
farm  stock,  becomes  a  part  of  the  realty. 
Brigham  v.  Overstreet,  10:  452,  57  S.  E.  484, 
128  Ga.  447. 

10.  The  attachment  to  the  realty  of  an 
engine  merely  by  bolts  and  the  necessary 
fittings  is  not  such  that  its  character  as 
personalty  cannot  be  protected  by  agree- 
ment. Davis  v.  Bliss,  10:  458,  79  N.  E.  851, 
187  N.  Y.  77. 

11.  A  gasolene  engine  placed  on  a  stone 
foundation  in  a  permanent  building  on  a 
farm  for  operating  machinery  and  grinding 
feed  for  stock  is  part  of  the  realty,  and  will 
pass  under  a  deed  thereof,  rather  than  un- 
der a  conveyance  of  live  stock,  plows,  and 
all  other  machinery  and  tools  on  the  prem- 
ises, in  the  absence  of  any  agreement  that 
it  shall  be  personalty.  State  Security 
Bank  v.  Hoskins,  8:  376,  106  N.  W.  764, 
130  Iowa,  339.  (Annotated) 

12.  An  agreement  between  landloid  and 
tenant  permitting  the  latter  to  remove  ma- 
chinerv  from  the  building  at  the  termina- 
Bigest  1-52  L.R.A.(M.S.) 


tion  of  the  lease  does  not  prevent  its  be- 
coming part  of  tue  building  so  as  to  be 
subject  to  a  meclianics'  lien.  Horn  v. 
Clark  Hardware  Co.  45:  100,  131  Pac.  405, 
54  Colo.  522.  (Annotated) 

13.  Machinery  placed  in  a  mill  and  at- 
tached to  the  structure,  or  to  the  ground 
therein,  by  a  tenant,  with  intent  tliat  it 
should  become  a  part  of  a  plant  intended 
as  a  whole  to  eflect  a  certain  result,  be- 
comes a  part  of  the  leaseliold  so  as  to  be 
subject  to  a  mechanics'  lien  for  the  im- 
provement. Horn  V.  Clark  Hardware  Co. 
45:  100,  131  Pac.  405,  54  Colo.  622. 

III.  Between  vendor  and  purchaser. 

(See  also  same  heading  in  Digest  L.R.A, 
1-70.) 

See  also  supra,  2. 

14.  Fixtures  so  attached  to  the  realty 
as  to  become  a  part  of  it  pass  to  a  grantee 
of  the  land,  unless  excepted  from  the  opera- 
tion of  the  deed.  Brigham  v.  Overstreet, 
10:  452,  67  S.  E.  484,  128  Ga.  447. 

IV.  Between  landlord  and  tenant. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Tenant's  rights  as  to  fixtures,  see  Landlobd 
AND  Tenant,  III.  b. 

Parol  evidence  that  building  erected  by  ten- 
ant was  to  belong  to  him,  see  Evidence, 
939. 

Right  of  lessee  in  oil  and  gas  lease  to  re- 
move, see  Mines,  55. 

15.  Fixtures  consisting  of  electric  devices, 
annexed  to  a  rented  structure  by  a  tenant 
for  his  personal  comfort  and  convenience, 
without  any  view  of  their  becoming  perma- 
nently attached  thereto  as  a  part  of  the  real- 
ty, do  not  lose  their  identity  as  chattels ;  and 
a  possessory  warrant  will  lie  to  recover  thera 
from  the  landlord,  who  wrongfully  with- 
holds possession  of  them  from  the  tenant. 
Raymond  v.  Strickland,  3:  69,  52  S.  E.  619, 
124  Ga.  504. 

16.  A  front  of  plate  glass  and  marble 
placed  on  a  store  by  a  tenant  is  not  a  trade 
fixture  which  can  be  removed  at  the  end  of 
the  term,  although  it  was  attached  by 
screws  so  that  it  could  be  removed  with- 
out weakening  the  building,  if  it  cannot 
be  done  without  opening  tlie  store  to  in- 
truders and  the  elements.  Alden  v.  May- 
field,  41:  1022,  127  Pac.  44,  163  Cal.  793. 

{ Annotated) 

17.  A  frame  building  covering  30  by  50 
feet  of  space,  erected  by  a  tenant  on  the 
leased  property,  which  is  placed  on  a  cement 
foundation  and  is  connected  by  a  shed  with 
the  building  on  the  lot  when  the  lease  was 
taken,  and  which  is  used  as  a  garage  and 
repair  shop,  may  be  removed  at  the  end  of 
the  term  as  a  trade  fixture  if  it  can  be  done 
without    injury    to    the    piemises.      Ray    V. 


FIXTURES,  v.— FLAG. 


1307 


Yoini-r.   45:  947,   142  IST.   W.  393,   IGO   Iowa, 
613. 

18.  A  brick  building  erected  on  leased 
premises,  to  be  tbo  property  of  tlie  tenant, 
with  the  privilege  of  removal,  upon  certain 
conditions,  before  the  expiration  of  the  lease, 
is  personal  property  during  the  life  of  the 
lease,  and  becomes  real  estate  upon  the  ex- 
piration 01'  surrender  thereof  witliout  re 
moval.  Hughes  v.  Kershow,  15:  723,  93  Pac. 
1116,  42  Colo.  210. 

F.  Effect  of  mortgage. 

(See  also   same   heading   in   Digest  L.R.A. 
1-10.) 

Question  for  jury  as  to,  see  Trial,  200. 

19.  A  gas  stove  and  windsw  shades  run- 
ning on  rollers,  attached  by  the  owner  to 
his  dwelling  house  designed  for  a  single 
family,  are  not  fixtures  which  will  pass 
with  a  mortgage  of  the  reaityt  Hook  v. 
Bolton,  17:  699,  85  N.  E.  175,  199  Mass.  244. 

(Annotated) 

20.  Storm  doors  and  windows  made  to 
fit  a  house  and  fastened  in  place  by  8crev?9 
are  fixtures  which  will  pass  with  a  mort- 
gage and  subsequent  deed  to  the  mortgagee, 
although  during  certain  periods  of  the  year 
they  are  removed  from  their  places  and 
stored  on  the  premises.  Roderick  v.  San- 
born, 30:  1189,  76  Atl.  263,  106  Me.  159. 

(Annotated) 

21.  Persons  undertaking  to  erect  a  stand- 
pipe  as  part  of  a  waterworks  system,  which 
is  to  be  attached  to  the  foundation  by  bolts 
embedded  in  it,  cannot,  by  contract  to  which 
the  mortgagee  is  not  a  party,  reserve  a  right 
to  remove  it  in  case  of  failure  to  pay  the 
purchase  price,  as  against  rights  under  a 
mortgage  covering  after-acquired  property 
of  the  water  company,  and  which  embraces 
its  entire  working  plant,  including  fran- 
chises. Tippett  &  Wood  v.  Barham,  37:  119, 
180  Fed.  76,  103  C.  C.  A.  430. 

22.  "Dog  grates"  of  considerable  weight 
but  not  physically  attached  to  the  structure 
of  the  house  in  any  way,  substituted  by  the 
mortgagor,  subsequently  to  the  mortgage, 
for  ordinary  fixed  grates,  are,  under  the 
circumstances,  to  be  considered  as  intended 
to  become  part  of  the  freehold,  and  are 
therefore  fixtures  which  pass  to  the  mort- 
gagee. Monti  V.  Barnes,  1  B.  R.  C.  966, 
[1901]  1  Q.  B.  205.  Also  Reported  in  70 
L.  J.  Q.  B.  N.  S.  225,  47  Week.  Rep.  147, 
83  L.  T.  N.  S.  619,  17  Times  L.  R.  88. 

(Annotated) 

23.  In  the  absence  of  express  stipula- 
tion to  the  contrary  a  mortgagor  in  posses- 
sion has  the  right  to  permit  trade  fixtures 
to  be  put  up  and  removed  from  the  mort- 
gaged premises  providing  they  are  removed 
before  tlie  mortgagee  takes  possession,  but 
this  right  of  removal  ceases  when  posses- 
sion is  taken  by  the  mortgagee.  Ellis  v. 
Glover  &  Hobson,  Ltd.,  1  B.  R.  C.  692, 
[1908]  1  K.  B.  388.  Also  Reported  in  77 
L.  J.  K.  B.  N.  S.  251,  98  L.  T.  N.  S.  110. 
Digest   1-52  I..R.A.(N.S.) 


Machinery. 

24.  The  agreement  between  a  seller  and 
purchaser  of  machinery  to  be  affixed  to  the 
realty,  that  the  title  shall  remain  in  the 
seller  until  the  price  is  paid,  is  binding  on 
the  existing  mortgagee  of  the  realty,  al- 
though the  contract  is  not  recorded  so  as  to 
be  eti'ective  against  subsequent  purchasers 
without  notice.  Blanchard  v.  Eureka  Plan- 
ing Mill  Co.  37:  133,  113  Pac.  55,  58  Or.  37. 

25.  Machines  supplied  under  a  hire-pur- 
chase agreement  for  the  equipment  of  a 
factory  and  which  had  been  affixed  to  con- 
crete beds  in  the  floor  of  the  factory  by 
bolts  and  nuts,  though  removable  without 
injury  to  the  building  cannot  be,  upon  a 
default  in  payment,  reclaimed  by  the  vendor 
from  a  mortgagee  of  the  realty  in  posses- 
sion, especially  where  the  owner  knew  that 
such  machines  were  to  become  a  part  of  the 
factory,  and  that  the  factory  was  mort- 
gaged. Reynolds  v.  Ashby  &  Son,  1  B.  R. 
C.  653,  [1904]  A.  C.  466.  Also  Reported  in 
73  L.  J.  K.  B.  N.  S.  946,  20  Times  L.  R. 
766,  53  Week.  Rep.  129,  91  L.  T.  N.  S. 
607.  (Annotated) 

26.  Trade  machinery  installed  under  a 
hire  and  purchase  agreement  which  pro- 
vided that  it  should  not  become  the  proper- 
ty of  the  hirer  until  all  instalments  had 
been  paid,  and  should  be  removable  by  the 
owner  on  the  failure  of  the  hirer  to  pay 
any  instalment,  nevertheless  passes  to  the 
mortgagee  of  the  realty  as  a  part  of  the 
freehold;  and  cannot  be  removed  upon  a 
default  in  payment  of  an  instalment,  al- 
though the  mortgagor  is  still  in  possession, 
where  the  circumstances  are  such  that  no 
inference  of  a  consent  on  the  part  of  the 
mortgagee  to  the  unfixing  and  removal  of 
the  trade  fixtures  may  be  drawn.  Ellis  v. 
Glover  &  Hobson,  Ltd.  1  B.  R.  C.  692, 
[1908]  1  K.  B.  388.  Also  Reported  in  77 
L.  J.  K.  B.  N.  S.  251,  98  L.  T.  N.  S.  110. 

(Annotated) 

YI.  Remedy. 

(See  same  heading  in  Digest  L.R.A.  1-70.) 


FLAG. 

Carrying  red  flag  in  parade,  see  Breach  of 
Peace,  2;   Evidence.  1970. 

Forbidding  use  of,  for  advertising,  see  Con- 
stitutional Law,  251,  252,  523,  524, 
675. 

Police  power  as  to  use  of,  see  Constitution- 
al Law,  675. 

Relative  rights  of  state  and  Congress  as  to 
protection  of,  see  State,  1. 

1.  That  a  representation  of  the  United 
States  flag  forms  part  of  the  trademark  of 
a  brewing  company,  and  is,  as  such,  a  prop- 
erty right,  does  not  justify  its  use  on  labels 
attached  to  bottles  containing  beer  and  used 
to  advertise  the  company's  product,  in  vio- 
lation of  a  statute  enacted  in  the  exercise 
of  the  police  power  of  the  state,  and  forbid- 


1808 


FLAGMAN— FLOWAGE. 


ding  the  use  of  the  flag  for  advertising  pur- 
poses. Halter  v.  State,  7:  1079,  105  N.  VV. 
298,  74  Neb.  757. 


FLAGMAN. 


Negligence  of  flagman  at  railroad  crossing, 
set'  Master  and  Servant.  31,  32,  1003. 

Duty  as  to,  at  crossing,  see  •  Railroads,  II. 
d,  3,  c. 

Reliance  on  flagman  at  railroad  crossing, 
see  Railroads,  270-273. 


TULG  STATION. 


Duty  to  stop  train  at,  see  Carriers,  37a, 

37b,     449-452;      Damages,     96,     261; 

Pleading,  601,  611,  631. 
Carrier's  duty  as  to  safety  of,  see  Carriers, 

606. 
Contributory  negligence  of  passenger  at,  see 

Carriers,   301,   611,   612. 


FLATS. 

Erection  of  flat  building  as  violation  of  cove- 
nant, see  Covenants  and  Conditions, 
74,  82. 


FLAX. 

Liability   of    carrier    for    loss    of,   through 
leakage,  see  Carriers,  795. 


FLIFS. 

Requiring  fruits  and  candies  exposed  for 
sale  to  be  protected  from,  see  Munici- 
pal Corporations,  193. 


FLIGHT. 

Presumption  of  guilt  from,  see  Evidence, 

302. 
Evidence  of  flight  of  accused,  see  Evidence, 

1836,  1837. 


FLIRTING. 


Ab   ground    for    divorce,    see   Divobce  aitd 
Separation,  57. 


■♦•♦■ 


FLOATAGE. 


Capacity  of  stream  for,  as  test  of  naviga- 
bility, see  Waters,  10-20. 
Rights  in  stream  for,  see  Waters,  I.  c,  2. 
Digest  1-52  L.R.A.(N.S.) 


FLOOD. 

As  act  of  God,  see  Act  of  GrOD,  3-6. 

Review  of  discretionary  ruling  in  action  for 
injury  by  flooding,  see  Appeal  ani> 
Error,  607. 

Destruction  by,  of  property  in  hands  of 
carriers,  see  Carriers,  792,  814,  828: 
Proximate  Cause,  69,  70. 

Liability  of  one  agreeing  to  maintain  boom 
to  protect  riparian  property  from  in- 
jury caused  by  unprecedented  flood,  see 
Contracts,  384. 

As  ground  for  nonperformance  of  contract, 
see  Contracts,  635. 

Damages  for,  see  Damages,  11,  492-496. 

Opinion  as  to  cost  of  repairing  damage  by, 
see  Evidence,  1130. 

Injury  to  railroad  employee  by,  see  Master 
AND  Servant,  393. 

Liability  of  municipality  for  causing,  see 
Municipal  Corporations,  44.5-448. 

As  surface  water,  see  Railroad.s,  297. 

Question  for  jury  as  to  negligence  causing, 
see  Trial,  594. 

Liability  for  causing,  generally,  see  Wa- 
ters, II.  d. 


FLOOD    'WATERS. 

Diversion   of,   see   Estoppel,   26;    Waters, 

166. 
Obstruction  of,  see  Waters,  II,  d. 
Appropriation  of,  see  Waters,  233,  234. 
Duty  of  builder  of  bridge  to  provide  for, 

see  Trial,  1015. 


FLOOR. 

Injury  to  servant  by  projections,  see  Mas- 
ter AND  Servant,  273,  641,  721. 


♦  •» 


FLOUR. 

Illegal  attempt  to  control  price  of,  see  Mo- 
nopoly AND  Combinations,  40. 


FLOUR   MILLS. 


Exercise  of  right  of  eminent  domain  by,  see 
Eminent  Domain,  22,  67-70. 


FLOATAGE. 

Construction    of   deed   conveying  rights   of, 

sc^  Deb3)S,  45. 
Question   for   jury  as   to   reasonableness  of 

use  of  right  of,  see  Trial,  194. 


FLUE— FOOD. 


1309 


FLUE, 

I       In  party  wall,  see  Party  Wall,  6. 


FLUME. 

Drowning  of  child  in,  see  Municipal  Cob- 

POBATIONS,   343. 
Imputing  to  municipality  notice  of  danger- 
ous character  of  opening  in,  see  Notice, 
14. 


FLYING    SWITCH. 

Injury    resulting    from,    see    Masteb    and 
Sebvant,  242;   Railroad,  66. 


F.   O.  B. 

Meaning  of  term,  see  Contracts,  382. 

Admissibility  of  evidence  of  custom  lo  com- 
pel consignee  f.  o.  b.  to  pay  freight,  see 
Evidence,   1522. 

Allegations  as  to  sale  "f.  o.  b.  cars,"  see 
Pleading,  257. 

Rights  of  parties  on  sale  f.  o.  b.  see  Sale, 
29,  139,  140. 


FOG. 

Collision  during,  see  Collision,  1-5. 
Effect  of  failure  to  give  fog  signals,  see  Neg- 
UQENCE,  259. 


FOLLOWING   TRUST  PROPERTY. 

See  Banks,  201-227 ;  Trusts,  V. 


FOOD. 

Ordinance  providing  for  inspection  of,  see 
Commerce,   18-20. 

Eegulations  as  to  adulteration  of  food  and 
drugs  as  interference  with  commerce, 
see  Commebce,  105-110. 

Regulating  weight  of  bread,  see  Constitu- 
tional Law,  247,  500;  Municipal 
Corporations,  190-192. 

Constitutionality  of  statute  as  to  labeling, 
of,  see  Constitutional  Law,  248. 

Monopoly  in  food  product,  see  Constitu- 
tional Law,  344. 

Requiring  marking  of  weight  on  packages  of 
butter,  see  Constitutional  Law,  501. 

Requiring  marking  of  fruit  packed  for  ship- 
ment, see  Constitutional  Law,  665. 

Police  power  as  to,  see  Constitutional 
Law,  729-738. 

Injunction  against  pure  food  commissioner, 
see  Injunction,  322-324;  Prohibi- 
tion, 20. 

Digest  1-52  L.R.A.(N.S.) 


Injunction  to  restrain  enforcement  of  stat- 
ute regulating  sliipmwit  of  cream,  see 
Injunction,  354. 

Charging  sale  of  rotten  goods,  sec  Libel 
and  Slander,  51. 

Mechanics'  lien  for  food  furnished  em- 
ployees, see  Mechanics'  Lien,  32,  41. 

Illegal  combination  to  control,  see  MoNoi'o- 
LY  AND  Combinations,  39-44. 

Requiring  fruit  and  candies  exposed  for  sale 
to  be  protected  from  flies  and  dust,  see 
Municipal  Corporatk^^s,  193. 

Partial  invalidity  of  statute  as  to  sale  of 
meat,  see  Statutes,  63. 

Partial  invalidity  of  pure  food  act,  see 
Statutes,  67. 

Title  of  pure  food  act,  see  Statutes,  118. 

Sale  of  meat  and  ice  on  Sunday  as  work  of 
necessity,  see  Sunday,  19. 

Imposing  inspection  fee  on  meat  imported 
from  other  state,  see  Taxes,  20. 

1.  In  view  of  the  evident  purpose  to 
protect  the  retail  purchaser  or  consumer, 
the  provisions  of  §  11  of  the  Illinois  pure 
food  act,  tliat  all  vinegar  made  wholly  or 
in  part  from  distilled  liquor  shall  be  brand- 
ed "distilled  vinegar,"  and  shall  not  be 
colored  in  imitation  of  cider  vinegar,  and 
that  any  vinegar  made  or  manufactured 
contrary  to  the  provisions  of  this  section 
shall  be  deemed  to  be  adulterated,  are  to  be 
considered  as  prohibiting  the  compounding 
of  white  distilled  vinegar  and  sugar,  or 
molasses,  vinegar,  in  such  a  manner  as  to 
give  the  mixture  a  color  closely  resembling 
that  of  cider  vinegar,  even  though  the  mix- 
ture is  properly  labeled,  and  notwithstand- 
ing that  §  9  of  the  same  act  provides  that 
an  article  of  food  which  does  not  contain 
any  added  poisonous  or  deleterious  in- 
gredients shall  not  be  deemed  to  be  adul- 
terated or  misbranded,  where,  if  a  com- 
pound, imitation,  or  blend,  such  fact  is 
plainly  stated  on  the  package  in  which  it 
is  offered  for  sale.  People  v.  William  Hen- 
ning  Co.  49:  1206,  103  N.  E.  530,  260  111. 
554. 

2.  The  word  "package,"  or  its  equiva- 
lent expression,  as  used  by  Congress  in  the 
food  and  drugs  act  of  June  30,  1906  (34 
Stat,  at  L.  768,  chap.  3915),  §§  7  and  8,  in 
defining  what  shall  constitute  adultera- 
tion and  what  misbranding  within  the 
rricaning  of  the  act,  refers  to  the  immediate 
container  of  the  article  which  is  intended 
for  consumption  by  the  public,  and  not 
simply  to  the  outside  wrapping  or  box  con- 
taining the  package  intended  to  be  pur- 
chased by  the  consumer.  McDermott  v. 
State,  47:  984,  33  Sup.  Ct.  Rep.  431,  228  U. 
S.  115,  54  L.  ed.  754. 

3.  That  a  manufacturer  whose  prin- 
cipal trade  is  at  wholesale  maintains  a  re- 
tail store  at  his  factory,  at  which  goods 
are  sold  to  consumers,  does  not  make  him 
a  retailer  within  the  meaning  of  a  statute 
providing  that  a  provision  requiring  the 
weight  or  measure  of  package  goods  to  be 
stamped  on  the  package  shall  not  apply  to 
packages  put  up  by  the  retailer.    Freadrich 


1310 


FOOD. 


V.   State,  34:  650,   131   N.  W.  618,  89  Neb. 
343. 

4.  In  determining  whether  or  not  an 
article  of  food  is  a  mixture  or  compound 
within  the  provisions  of  a  statute  requir- 
ing labels  to  show  that  fact,  the  popular 
or  common  understanding  of  the  name  un- 
der which  it  is  sold,  and  not  its  trade  or 
commercial  meaning,  ie  to  be  considered. 
Armour  &  Co.  v.  Bird,  25:  616,  123  N.  W. 
580,  159  Mich.  1. 

5.  A  label-for  a  food  compounded  of 
meat  and  cereal  is  sufficient  which  states 
that  it  is  sausage  and  cereal,  without  stating 
the  addition  of  water,  Although  water  is 
also  an  ingredient  of  the  mixture,  under  a 
statute  requiring  labels  on  foods  which  are 
mixtures  or  compounds  to  show  that  fact. 
Armour  &  Co.  v.  Bird,  25:  616,  123  N.  VV. 
580,  159  Mich.  1. 

6.  The  packages  of  sausages  composed 
of  meat  and  cereals  sold  to  consumers  from 
a  large  package  must  be  labeled  so  as  to 
show  the  fact  of  the  combination,  under  a 
statute  requiring  mixtures  and  compounds 
recognized  as  ordinary  articles  of  food  to  be 
labeled  in  a  manner  plainly  and  correctly, 
to  show  that  it  is  a  mixture  or  compound. 
Armour  &  Co.  v.  Bird,  25:  616,  123  N.  W. 
680,  159  Mich.  1. 

Milk. 

Limiting  time  for  argument  of  counsel  to 
jury  in  prosecution  for  sale  of  watered 
milk,  see  Appeal  and  Erbob,  640. 

Equal  protection  and  privileges  of  dealers 
in,  see  Constitutional  Law,  258,  259. 

Due  process  in  regulations  as  to,  see  Con- 
stitutional Law,   449,   612,   613. 

Police  power  as  to,  see  Constitutional 
Law,  731-738. 

Regulating  size  and  character  of  milk  jars, 
see  Constitutional  Law,  258,  449,  738. 

Ordinance  authorizing  summary  destruc- 
tion of  milk,  see  Constitutional  Law, 
612,  613. 

Court's  power  to  review  ordinance  as  to, 
see  CouBTS,  163,  164. 

Adulteration  of,  by  servant,  see  Damages, 
306;  Masteb  and  Sebvant,  938. 

License  to  sell,  see  License,  21,  33,  34,  40, 
48,  68,  69,  89.  126,  127. 

Right  of  holder  6i  permit  to  sell  milk  to 
mandamus  to  board  of  health  revoking 
license,  see  Mandamus,  56. 

Illegal  combinations  by  dealers  in  milk  and 
cream,  see  Monopoly  and  Combina- 
tions, 39. 

Power  of  municipality  as  to,  see  Municipal 
CoBPOBATiONS,  67,  84,  162,  194-197. 

Requiring  registration  of  milk  dealers,  see 
Municipal  Cobpobations,  67,  84,  194. 

Destruction  of  diseased  dairy  cows,  see  Mu- 
nicipal Cobpobations,  162. 

Ordinance  as  to  inspection  of  dairies  and 
cows,  see  Municipal  Cobpobations, 
162. 

Prohibitory  sale  of  milk  containing  less 
than  3  per  cent  of  butter  fat,  see  Mu- 
nicipal Cobpobations,  195. 

Prohibitory  sale  of  milk  containing  less 
than  ■^  per  cent  of  ash,  see  Municipal 
Corporations,  196. 

Digest   1-52  I..R.A.(N.S.) 


Question  for  jury  as  to  whether  milk  was 
watered  or  skimmed,  see  Tbial,  669. 

7.  Where  a  pure  food  statute  provides 
that  in  testing  milk  or  cream  for  com- 
mercial purposes  the  same  shall  be  done  in 
accordance  with  the  rules  and  regulations 
prescribed  by  the  pure  food  commission,  a 
criminal  prosecution  cannot  be  sustained 
a'  inst  one  for  violation  of  a  rule  pre- 
scribed by  tlie  pure  food  commissioner  in 
accordance  with  said  statute,  that  payment 
for  cream  purchased  for  commercial  pur- 
poses should  be  suspended  until  the  day  fol- 
lowing the  testing  or  tlie  time  of  the"  next 
delivery.  State  v.  Elam,  39:  686,  13G  N.  W. 
59,  91  Neb.  460.  (Annotated) 

8.  Statutory  authority  to  examine  into 
nuisances,  sources  of  filth,  and  causes  of 
sickness,  and  remove  or  prevent  the  same, 
and  make  regulations  for  the  public  health 
relative  thereto,  and  relative  to  articles 
which  are  capable  of  containing  or  convey- 
ing infection  or  contagion,  or  of  creating 
sickness,  which  are  brought  into  or  conveyed 
from  the  town,  does  not  empower  a  board 
of  health  to  require  the  selling  of  milk  only 
in  tightly  closed  bottles  or  receptacles,  to 
the  exclusion  of  sales  in  small  quantities 
from  a  wholesome  receptacle  kept  under 
hygienic  conditions.  Com.  v.  Drew,  33:  401, 
94  N.  E.  682,  208  Mass.  493.       (Annotated) 

9.  A  regulation  of  a  local  board  of 
health  requiring  milk  to  be  handled  only  in 
transparent  glass  bottles  or  other  approved 
receptacles  of  similar  character,  thorough- 
ly clean  and  sterile,  and  filled  and  sealed 
in  a  milk  house  or  creamery  of  approved 
sanitary  condition,  is  within  the  powers 
conferred  by  statutes  empowering  such 
boards  to  inaugurate  and  execute  such  sani- 
tary regulations  as  they  may  consider  ex- 
pedient to  prevent  the  outbreak  of  cholera, 
smallpox,  yellow  fever,  scarlet  fever,  diph- 
theria, and  other  epidemic  and  communica- 
ble diseases,  and  to  examine  into  all  nui- 
sances, sources  of  filth,  or  causes  of  sick' 
ness  that,  in  their  opinion,  may  be  injuri- 
ous to  the  public  health.  Board  of  Health 
V.  Kollman,  49:  354,  160  S.  W.  1052,  156  Ky. 
351. 

10.  Designating  only  one  officer  to  deter- 
mine whether  milk  reaches  the  required 
standard  does  not  deprive  the  dealer  of  any 
consticutional  right.  St.  Louis  v.  Liessing, 
i:  918,  89  S.  W.  611,  190  Mo.  464. 

11.  One  having  in  possession  for  use 
glass  jars  for  the  sale  of  milk  of  less  capac- 
ity than  is  indicated  upon  them  cannot  es- 
cape the  penalty  imposed  by  ordinance 
therefor,  by  showing  that  he  had  not  in- 
formed himself  as  to  their  capacity.  Chi- 
cago V.  Bowman  Dairy  Co.  17:  684,  84  N.  £• 
913,  234  111.  294. 

OleomaTgarin. 

Police  power  as  to,  see  Constitotional 
Law,  729. 

Criminal  liability  for  furnishing  oleomar- 
garine in  place  of  butter,  see  Criminal 
Law,  18. 

Right  to  a?k  witness  how  sample  of  oleo- 
margarin  compares  in  color  with  but- 
ter, see  Evidence,  2045. 


FOOD  SHOW— FOOT  BALL. 


1311 


Sufficiency  of  evidence  to  show  that  oleo- 
margarin  was  made  in  imitation  of 
butter,  see  Evidence,  2418,  2419. 

Construction  of  statute  forbidding  sale  of 
oleomargarin  in  imitation  of  yellow 
butter,  see  Statutes,  287,  250. 

12.  A  statute  prohibiting  the  manufac- 
ture or  sale  of  oleomargarin  "wliicli  shall 
be  in  imitation  of  butter  of  any  shade  or 
tint  of  yellow,  unless  such  oleomargarin 
shall  be  made  and  kept  free  from  all  color- 
ation or  ingredients  causing  it  to  look  like 
butter  of  any  shade  or  tint  of  yellow,"  is 
violated  by  a  sale  of  oleomargarin  purpose- 
ly made  of  any  shade  or  tint  of  yellow 
by  a  judicious  selection  and  combination 
of  fat,  oil,  and  other  necessary  ingredients, 
though  no  artificial  coloring  matter  is  used. 
State  V.  Hanson,  40:  865,  136  N.  W.  412, 
118    Minn.    85. 

13.  A  waiter  in  charge  of  a  lunch  coun- 
ter who  makes  requisition  for  supplies 
needed,  and  fills  the  orders  of  patrons  from 
materials  received,  furnishes  such  material 
to  them  within  the  meaning  of  a  statute 
providing  for  the  punishment  of  one  who 
furnishes  oleomargarin  instead  of  butter, 
State  V,  Welch,  32:  746,  129  N.  W.  656, 
145  Wis.  86. 

Liability   tor  injury  by  unwholesome 

food. 
Damages    for    personal    injuries    resulting 

from    eating    of    unfit   food,    see   Daai- 

AGES,   199. 

Measure  of  damages  for  serving  unfit  food 
to  guests,  see  Damages,  356,  407. 

Sufficiency  of  indictment  for  keeping  un- 
wholesome meat  for  sale,  see  Indict- 
ment, ETC.,  26. 

Master's  duty  to  inspect  animals  slaugh- 
tered for,  see  Master  and  Sebvant, 
446. 

Sufficiency  of  declaration  against  manufac- 
turer of  unwholesome  canned  meats,  see 
Pleading,  317. 

Allegations  of  negligence  in  sale,  see  Plead- 
ing, 317. 

14.  A  victualer  cannot  be  held  liable  for 
injury  caused  by  consumption  of  all  un- 
sound fowl  purchased  from  him  for  food, 
on  the  theory  that  he  knew  of  its  unfitness, 
in  the  absence  of  any  allegation  that  he 
represented  that  it  was  fit  and  that  the  pur- 
chaser relied  on  such  representation.  Far- 
rell  V.  Manhattan  Market  Co.  15:  884,  84 
N.  E.  481,  198  Mass.  271.  (Annotated) 

15.  A  victualer  is  not  liable  for  injury  to 
a  customer  through  the  consumption  of  un- 
sound food  sold  by  him,  but  selected  by  the 
customer,  merely  because  he  was  negligent 
in  not  discovering  its  unfitness.  Farrell  v. 
Manhattan  Market  Co.  15:  884,  84  N.  E. 
481,  198  Mass.  271. 

16.  To  hold  a  merchant  liable  for  injury 
through  consumption  of  an  unsound  fowl 
purchased  from  him  for  food,  on  the  theory 
that  there  was  an  implied  warranty  of  fit- 
ness, the  purchaser  must  show  that  reliance 
was  placed  on  his  skill  and  judgment  in  se- 
lecting it.  Farrell  v.  Manhattan  Market  Co. 
15:  884,  84  N.  E.  481,  198  Mass.  271. 

(Annotated) 
Digest  1-52  i:i.R.A.(N.S.) 


17.  An  implied  warranty  of  food  prod- 
ucts dispensed  in  original  packages  exists 
in  the  absence  of  e.xpress  warranty,  in 
favor  of  anyone  injured  by  reason  of  their 
use  in  the  legitimate  channels  of  trade. 
Mazetti  v.  Armour  &  Co.  48:  213,  135  Pac. 
633,  75  Wash.  622. 

18.  A  manufacturer  of  canned  goods  is 
under  a  duty  to  him  who,  in  the  ordinary 
course  of  trade,  becomes  the  ultimate  con- 
sumer, to  exercise  care  that  the  goods  which 
he  puts  into  cans  and  sells  to  retail  dealers, 
to  the  end  that  such  dealers  may  sell  the 
same  to  customers  as  food,  are  not  tainted 
with  poison,  irrespective  of  the  presence  or 
absence  of  contractual  obligations  arising 
out  of  the  dealings  between  manufacturer 
and  dealer  and  between  retailer  and  con- 
sumer. Tomlinson  v.  Armour  &  Co.  (N.  J. 
Err.  &  App.)  19:  923,  70  Atl.  314,  75  N.  J, 
L.  748.  (Annotated) 

19.  The  keeper  of  a  restaurant  m;  y  re- 
cover damages  from  the  packer  of  food, 
owing  to  the  unwholesome  condition  of 
which  when  served  to  customers  he  is  in- 
jured in  business  and  reputation,  although 
he  did  not  purciiase  the  food  directly  from 
the  packer.  Mazetti  v.  Armour  &  Co.  48: 
213,  135  Pac.  633,  75  Wash.  622. 

(Annotated) 

20.  The  keeper  of  a  public  place  where 
food  is  served  is  bound  to  know  that  the 
articles  sold  are  fresh  and  fit  for  human 
consumption,  and  is  liable  in  damages  for 
injury  due  to  their  vitiated  and  deleteri- 
ous character.  Doyle  v.  Fuerst  &  Kraemer, 
40:  480,   56   So.   906,   129   La.   838. 

( Annotated ) 
21.  A  railroad  company  operating  its 
own  dining  cars  is  not  liable  for  injury  to 
a  patron  by  partaking  of  canned  food  served 
in  regular  course  upon  the  car,  where  the 
food  was  purchased  of  a  reputable  dealer 
bore  a  well-known  brand,  was  of  the  high- 
est grade,  and  was  guaranteed  under  the 
pure  food  and  drug  act,  while  it  was  pre- 
pared for  service  with  due  care  by  an  ex- 
perienced chef,  and  there  was  nothing  to 
indicate  that  it  was  not  fit  for  food.  Bige- 
low  V.  Maine  C.  R.  Co.  43:  627,  85  Atl.  396, 
110   Me.    105.  (Annotated) 


FOOD  SHOAV. 


Refusal  to  serve  negro  at,  see  Civil  Rights, 
1. 


♦  •» 


FOOT. 

Damages  for  loss  of,  see  Damages,  431,  432. 

♦•» 

FOOT    BALL. 

Rule  of  school  board  as  to,  see  Schools,  21. 


1312 


FOOT  PATH— FORCIBLE  ENTRY  AND  DETAINER. 


FOOT   PATH. 

Prescriptive  right  to  use,  see  Easements, 

]9. 
Duty  of  master  to  keep  safe,  see  Masteb 

AND  Sebvant,  330. 


FOOT  PRINTS. 


Comparing  shoes  of  accused  with,  see  Cbim- 
iKAL  Law,  107,  131;  Evidence,  885. 


FORBEARANCE. 


To  enforce  claim  as  consideration  for  prom 
ise,  see  Contracts,  59,  GO,  98. 


FORCE. 

In  entering  or  detaining  property,  see  FoBcl- 

BLE  Entry  and  Detaineb. 
Sufficiency  of  force  to  constitute  robbery,  see 

ROBBEBY,    2,    4,    5. 


FORCED  MARRIAGE. 

Ratification  of,  see  Mabbiage,  23. 

'■♦»» 

FORCED  SALE. 

As  peril  within  marine  policy,  see  Insur- 
ance, 792. 
Of  homestead,  see  Pabtition,  15. 


FORCIBLE  ENTRY  AND  DETAINER. 

Assault  in  attempting  to  enter  on  one's  own 
property  in  possession  of  wrongdoer, 
see  Appeal  and  Error,  1033 ;  Assault 
AND  Battery,  39,  40;  Evidence,  1666, 
1743,  2001. 

Exclusiveness  of  remedy  afforded  by  statute, 
see  Election  of  Remedies,  9. 

EfTect  of  right  of  action  for,  on  jurisdiction 
of  equity,  see  Equity,  47. 

Estoppel  to  set  up  title  in  action  for  un- 
lawful detainer,  see  Estoppel,  66. 

Right  to  ask  witness  in  action  of,  who  was  in 
possession  of  property,  see  Evidence, 
1206. 

Jurisdiction  of  justice  of  the  peace  in  action 
of,  see  Justice  of  the  Peace,  3. 

Liability  to,  of  executor  who  has  sued  out 
execution  upon  judgment  of  foreclosure 
in  favor  of  hia  intestate,  see  I^evy  and 
Seizure,  28. 

Amendment  of  complaint  in  action  of,  see 
Pleading,  95. 

Direction  of  verdict,  soe  Tbial,  732. 

Digest  1-52  Ii.R.A.(N.S.) 


When  summons  in,  is  returnable,  see  Wbtt 
and  Process,  90. 

1.  The  owner  in  fee  of  land  subject  to 
a  life  estate  which  has  been  terminated  by 
the  death  of  the  life  tenant  is  entitled  to 
recover  possession  of  the  entire  premises  in 
an  action  of  forcible  entry  and  detainer 
brought  against  tlie  life  tenant's  sublessee, 
although  tlie  latter  has  planted  crops  upon 
a  portion  of  the  land  and  is  entitled  to  re- 
enter for  the  purpose  of  cultivating,  har- 
vesting and  removing  them.  Edghill  v. 
Mankhey,  ii:  688,  112  N.  W.  570,  79  Neb. 
347. 

2.  A  house  upon  land  to  which  its 
owner  has  no  title  but  in  which  he  claims 
and  enjoys  the  right  of  peaceable  posses 
sion,  which  house  is  occupied  by  one  leasing, 
from  such  owner,  is  a  "tenement"  within  a 
statute  authorizing  proceedings  to  try  ques- 
tions concerning  unlawful  detention  of  lands 
or  tenements  and  providing  that,  if  the 
same  be  held  unlawfully,  restitution  be  had. 
Poison  V.  Parsons,  25:  104,  104  Pac.  330, 
23  Okla.  778. 

3.  In  an  action  of  forcible  detainer  to 
recover  possession  of  a  tenement,  service  of 
a  notice  to  quit  for  failure  to  pay  rent  is 
waived  by  denial  by  defendant  of  the  exist- 
ence of  the  relation  of  landlord  and  tenant. 
Poison  V.  Parsons,  25:  104,  104  Pac.  336, 
23  Okla.  778.  (Annotated) 
What  constitutes. 

4.  The  acts  of  the  owner  of  a  building 
who  invaded  the  premises  during  the  tem- 
porary absence  of  one  ia  peaceable  posses- 
sion, unlocked  the  doors,  detached  and  re- 
moved the  articles  with  which  the  build- 
ing was  furnished,  carried  them  to  and 
stored  them  in  another  building,  and  then 
forcibly  maintained  the  possession  so 
gained, — constitute  a  forcible  entry.  Wil- 
son V.  Campbell,  8:  426,  88  Pac.  548,  75  Kan. 
159. 

5.  One  is  not  guilty  of  forcible  entry 
upon  real  property,  who,  under  color  of  a 
warrant  which  is  not  valid  against  the  one 
in  possession,  enters  the  premises  without 
force,  or  the  display  or  threat  of  force,  of 
any  kind,  and  is  left  in  possession  by  the 
occupant  departing  to  secure  legal  advice, 
although  the  one  in  possession  of  the  war- 
rant states  that  he  has  come  to  put  the  oc- 
cupant out  and  is  going  to  do  so.  Fults 
V.  Munro,  37:600,  95  N.  E.  23,  202  N.  Y. 
34. 

6.  The  one  responsible  for  the  conduct 
of  an  officer  is  guilty  of  forcible  detainer, 
where  he,  after  securing  possession  of  the 
property  peaceably,  but  wrongfully,  paces 
back  and  forth  before  it,  carrying  a  gun, 
which  he  occasionally  discharges,  and  or- 
ders the  person  dispossessed,  who  has  re- 
mained in  the  vicinity,  to  keep  off  the 
property.  Fults  v.  Munro,  37:  600,  95  N. 
E.  23,  202  N.  Y.  34. 

Wlio  may  maintain  action  for. 

7.  An  owner  entitled  to  the  possession 
of  real  property  has  no  right  forcibly  to 
turn    out   a    tenant    holding   over   after   the 


FORD— FOREIGN  RECEIVERS. 


1313 


expiration  of  his  term,  and  if  he  does  so 
the  tenant  may  maintain  an  action  for  forci- 
ble entry  and  detainer  against  him.  Wil- 
son V.  Campbell,  8:  426,  88  Pac.  548,  75  Kan. 
159.  (Annotated) 

8.  The  right  to  recover  possession  of 
real  estate  by  an  action  of  forcible  entry 
and  detainer  is  not  necessarily  limited  to 
cases  in  which  the  relation  of  landlord  and 
tenant  exists.  Knapp  v.  Reed,  32:  869,  130 
N.  W.  430,  88  Neb.  754, 

9.  If  partners  have  been  conducting 
a  general  real  estate,  brokerage,  and  in- 
surance business  as  copartners  in  leased 
premises,  and  one  of  the  partners  secures 
a  renewal  of  the  lease  in  his  ovpn  name 
without  the  consent  of  the  other,  he  cannot 
maintain  an  action  of  forcible  entry  and  de- 
tainer to  put  the  other  partner  out  of  the 
premises.  Knapp  v.  Reed,  32:  869,  130  N. 
W.  430,  88  Neb.  754. 

10.  Mere  occupancy  or  personal  presence 
of  the  complainant  upon  the  ground  does 
not  of  itself  constitute  such  possession  as 
will  sustain  an  action  of  forcible  entry. 
Schwinn  v.  Perkins  (N.  J.  Err.  &  App.) 
32:  51,  78  Atl.    19,  79  N.  J.  L.  515. 

11.  Where  the  rightful  owner  gains  pos- 
session of  lands  by  a  forcible  entry,  he 
may,  as  punishment  for  his  violence,  be 
deprived  of  it  by  the  statutory  proceeding 
in  favor  of  one  in  actual  peaceable  posses- 
sion, although  not  rightfully  entitled  there- 
to. Sciiwinn  v.  Perkins  (N.  J.  Err.  &  App.) 
32:  51,  78  Atl.   19,  79  N.  J.  L.  515. 

(Annotated) 

12.  A  mere  trespasser  cannot  by  the 
very  act  of  trespass,  immediately  and  with- 
out excuse,  give  himself  what  the  law  under- 
stands by  "possession"  against  the  person 
whom  he  ejects,  so  as  to  be  entitled  to  the 
aid  of  the  law  in  protecting  his  possession. 
Schwinn  v.  Perkins  (N.  J.  Err.  &  App.) 
32:  51,  78  Atl.  19,  79  N.  J.  L.  515. 


FORD. 

Liability  for  drowning  of  traveler  at,  see 
Highways,  240. 

Proximate  cause  of  death  of  person  attempt- 
ing to  cross,  see  Pboximate  Caose,  2. 


FORECLOSURE. 


Of  mortgage  to  loan  association,  see  Build- 
ing AND  Loan  Associations,  III.  d. 
Of   chattel   mortgage,    see   Chattel   Moet- 

GAGE,  VI. 

Of  land  contract,  see  Judicial  Sale,  1. 

Of  mechanics'  liens,  see  Mechanics'  Liens, 
VIII. 

Of  mortgage  generally,  see  Mortgage,  VI. 

Of  vendors'  lien,  see  Vendor  and  Purchas- 
er, 76-82. 

Making  cestui  que  trust  a  party  to,  see 
Parties,  180. 


FOREIGN  BANKRUPTCY. 

See  Bankruptcy,  VI. 


FOREIGN     BUILDING     AND     LOAN 
ASSQCIATION. 

See  Building  and  Loan  Associations,  VIII. 


FOREIGN  CORPORATIONS. 

Foreign  loan  associations,  see  Building  and 
Loan  Associations,  VIII. 

Foreign  insurance  company,  see  Insurance, 
I.  b. 

Service  of  process  on,  see  Writ  and  Proc- 
ess, II.  b. 

In  general,  see  Corporations,  VII. 


FOREIGNER. 


Negligence  of  person  unablfe  to  understand 
English,  see  Carriers,  557. 


FOREIGN     EXECUTORS     AND 
ADMINISTRATORS. 

See  Executors  and  Administrators,  VI. 


FOREIGN  INSURANCE   COMPANY. 

See  Insurance,  I.  b. 


FOREIGN  JUDGMENT. 

As  evidence,  see  Evidence,  770. 

Effect  of,   on  garnishment  proceedings,  see 

Garnishment,  230. 
In  general,  see  Judgments,  IV. 


FOREIGN  LA^VS. 


Judicial  notice  of,  see  Evidence,  3,  4. 

Presumption  as  to,  see  Evidence,  67-69. 

Proof  of,  by  member  of  bar  of  foreign  juris- 
diction, see  Evidence,  1135. 

Necessity  for  pleading  and  proving,  see 
Pleading,  59-63. 

Construction  of,  see  Statutes,  207. 


Digest  1-52  L.R.A.(N.S.) 


83 


FOREIGN  RECEIVERS. 

See  Receivers,  VI. 


1314 


FOREIGN  WILI^-FORGERY. 


FOREIGN  WILL. 

See  Wills,  I.  e,  3. 

♦-»■• 

FOREMAN. 

As  vice  principal  or  ftllow  servant,  see 
Master  and  Servant,  831-840,  847, 
849-861. 


eVA      FORFEITURE. 


Of  license  for  sale  of  liquors,  see  Appeal 
and  Ekbob,  80. 

Of  street  railway  privilege  in  street,  see  Ap- 
peal AND  Ebbob,  566;   Courts,  146. 

Of  bail  bond,  see  Bail  and  Recognizance, 
25-27. 

Of  twenty-trip  railroad  tickets,  see  Cae- 
BIEBS,  423. 

Of  charter  of  social  club,  see  Clubs,  5. 

Of  insurance  policy,  see  Conflict  of  Laws, 
46;  Insubance,  III.  e,  f ;  V.  b;  VI,  b. 

Of  property  used  in  connection  with  disor- 
derly house,  see  Constitutional  Law, 
51,  749. 

Of  land  of  corporation,  see  Constitutional 
Law,  569,  570. 

Of  building  contract,  see  Contbacts,  401. 

Of  franchise,  see  Cobpobations,  VI. ;  Coubts, 
233,  235;  Fbanchises,  2;  Gas,  3;  In- 
junction, 382 ;  Insurance,  I.  c ;  Stbeet 
Railways,  7-10;    Waters,  376. 

Of  stock  for  nonpayment  of  assessments,  see 
Corporations,  239. 

Of  lease  of  railway  property,  see  Corpora- 
tions, 275. 

Of  rights  in  homestead,  see  Homestead,  III. 

Of  liquor  license,  see  Intoxicating  Liquors, 
II.  d. 

Of  lease,  see  Landlobd  and  Tenant,  II.  d. 

Of  license  generally,  see  License,  29-36. 

Of  life  estate,  see  Life  Tenants,  3,  4. 

Of  logs,  see  Logs  and  Logging,  4,  6-8. 

Of  mining  claim,  see  Mines,  I.  b. 

Of  mining  lease  generally,  see  Mines,  31. 

Of  oil  or  gas  lease,  see  Mines,  II.  b,  4,  b. 

Of  railroad  easement,  see  Parties,  19. 

Of  license  to  use  patent,  see  Patents,  9. 

Of  patent  for  public  land,  see  Public  Lands, 
15. 

Of  property  because  of  nonentry  for  taxa- 
tion, see  Taxes,  174. 

Of  right  to  cut  or  remove  timber,  see  Tim- 
ber, 6,  8-15. 

Of  land  contract,  see  Vsndoz  and  Purchas- 
er, 5,  11,  27,  49. 

Of  legacy  by  breach  of  condition,  see  Wills, 
in.  g,  4. 

Of  legacy  by  contest  of  will,  see  Wills,  286- 
293. 

For  breach  of  condition  subsequent,  see 
Covenants  and  Conditions,  8,  13,  87, 
88. 

For  nonpayment  of  duties,  see  Duties. 

For  default  in  payment  of  interest  on  mort- 
gage, see  Limitation  of  Actions,  136- 
138. 

Digest  1-52  L.R.A.(N.S.)  ^ 


Enforcement  of,  in  equity,  see  Cloud  on 
Title,  2. 

Who  may  maintain  action  to  enforce,  see 
Parties,  19. 

Effect  of  right  to  claim,  in  validity  of  vend- 
or's contract  to  repurdiase  after  default 
by  vendee,  see  Contracts,  78. 

Effect  of  provision  against  forfeiture  on 
statute  denying  husband  who  murders 
wife  right  to  inherit  her  estate,  see 
Descent  and  Distbibution,  9b. 

Seller  asserting  claim  to  payment  made,  on 
theory  of,  see  Sale,  104. 

Sufficiency  of  tender  to  prevent,  see  Tender, 
13,  15. 

As  to  penalties,  see  Penalties. 

1.  Equity  will  not  permit  the  enforce 
ment  of  a  forfeiture  in  an  inequitable  and 
oppressive  manner,  nor  a  perversion  there- 
of to  purposes  other  than  those  for  which 
the  power  of  forfeiture  has  been  reserved. 
Wheeling  &  E.  G.  R.  Co.  v.  Triadclphia,  4: 
321,  52  S.  E.  499,  58  W.  Va.  487. 

2.  Equity  will  relieve  from  forfeitures 
for  nonperformance  of  covenants  other  than 
those  for  the  payment  of  money,  arising 
out  of  accident,  mistake,  or  surprise,  and 
in  the  absence  of  wilful  and  deliberate  re- 
fusal to  perform,  when  no  pecuniary  injury 
has  resulted  to  the  covenantee  and  the 
wrong  done  is  easily  remediable;  but  such 
power  of  relief  is  discretionary,  and  will  not 
be  exercised  unless  the  delinquent  cove- 
nantor is  able  and  willing  immediately  to 
perform  the  covenant.  Wheeling  &  E.  G. 
R.  Co.  v.  Triadelphia,  4:  321,  52  S.  E.  499, 
58  W.  Va.  487. 

3.  A  forfeiture  of  a  deposit  made  by  a 
bidder  for  public  work  cannot  be  predicated 
upon  a  conference  between  him  and  the 
committee,  at  which  he  suggests  a  mistake 
in  his  bid,  and  asks  leave  to  correct  it,  and 
the  committee  state  a  desire  to  change  the 
specifications,  where  no  demand  is  made 
upon  him  to  comply  with  the  terms  of  his 
bid.  Cedar  Rapids  Lumber  Co.  v.  Fisher, 
4:  177,  105  N.  W.  595,  129  Iowa,  332. 

4.  Conviction  of  the  offense  of  carrying 
concealed  weapons  is  not  necessary  to  work 
a  forfeiture  of  them  under  a  statute  pre- 
scribing a  punishment  for  such  offense, 
and  providing  that  all  concealed  weapons 
taken  from  persons  violating  this  statute 
shall  be  forfeited  to  the  countv.  McCona 
thy  V.  Deck,  4:  358,  83  Pac.  135,  34  Colo. 
461.  --    *  (Annotated} 


FORGERY. 


Of  checks,  see  Banks,  IV.  a,  3,  b;  Checks, 
v.;  Evidence,  1621;  Notice,  35,  30: 
Principal  and  Agent,  79;  Subroga- 
tion, 40,  41;  Trial,  592. 

Of  paper  sent  for  collection,  see  Banks, 
182-186. 

Of  deed,  see  Banks,  109. 

Of  indorsement,  see  Bills  and  Notes,  75; 
Conflict  of  Laws,  32,  33 ;  Tbovbr,  18. 


FORGERY. 


1315 


Of   names  of   comakers  on  note,   see   Bills 

AND   NOTES),    148. 

Of  bill  of  lading  attached  to  draft,  see 
Bills  of  Lading,  15,  16,  18. 

Of  signature  to  transfer  of  stock  certifi- 
ciite,   see   Contracts,   20. 

Of  corporate  stock,  see  CoiiPORATlONS,  V.  d. 

Of  indorsement  on  paving  tax  certittcates 
pledged  as  collateral,  see  Pledge  and 
Collateral  Security,  20. 

Of  telegram,  see  Telegraphs,  II.  a,  4. 

Of  will,  see  Wills,  289. 

By  altering  instrument;  effect  on  civil  lia- 
bility,    see     Alteration     of    Instbu- 

MENTS. 

Presumptions  on  appeal  in  prosecution  for, 
see  Appeal  and  Error,  478. 

Review  of  verdict  on  appeal,  see  Appeal 
and  Error,  931. 

Error  in  introduction  of  evidence  in  prose- 
cution for,  see  Appeal  and  Error, 
1150. 

Recovery  of  money  paid  on  forged  obliga- 
tion, see  Assumpsit,  44,  45. 

As  ground  for  disbarment  of  attorney  after 
pardon,  see  Attorneys,  29. 

Release  on  bail  of  one  charged  with,  see 
Bail  and  Recognizance,  4. 

Payment  by  bank  of  forged  checks,  see 
Banks,  IV.  a,  3,  b. 

Effect  of  indorsement  as  warranting  draw- 
er's signature,  see  Bills  and  Notes, 
74. 

Effect  on  admission  of  evidence  of  manner 
in  which  it  is  obtained,  see  Criminal 
Law,    120. 

Former  jeopardy,  see  Criminal  Law,  200. 

Estoppel  to  set  up  forgery,  see  Estoppel, 
79,  132,  133,  185,  186,  189,  202. 

Effect  of,  on  note  given  in  renewal  of 
forged  instrument,  see  Estoppel,  236. 

Negligent  failure  of  depositor  to  discover, 
see  Estoppel,  185,  186;  Proximate 
Cause,  157,  158. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  583,  586. 

Documentary  evidence  in  prosecution  for, 
see  Evidence,  836,  840. 

Evidence  in  prosecution  for,  see  Evidence, 
1438,  1440,  1471,  1634,  1838,  1901-1905. 

As  to  variance  between  indictment  and  proof, 
see  Evidence,  2505. 

As  evidence  of  insanity,  see  Incompetent 
Persons,  1. 

Indictment  for,  see  Indictaient,  etc.,  77,  78. 

Notice  of  agent  as  to,  as  notice  to  principal, 
see  Notice,  28. 

SufGciency  of  pleading  to  permit  defense  of, 
in  action  on  note,  see  Pleading,  530. 

Right  to  show  that  signature  to  recorded 
deed  was  forged,  see  Records  and  Re- 
cording Laws,  50. 

Question  for  jury  as  to,  see  Trial,  592,  665., 

Competency  of  wife  as  witness  against  hus- 
band, see  Witnesses,  37. 

1.  A  forged  instrument  is  not  merely 
voidable,  but  absolutely  void,  and  there  can 
be  no  ratification  of  a  forgery  that  will 
make  the  instrument  valid.  Shinew  v.  First 
Nat.  Bank,  36:  1006,  95  N.  E.  881,  84  Ohio 
St.  297.  (Annotated) 

Digest  1-52  L.R.A.(N.S.) 


2.  The  alteration  of  separate  money  or- 
ders at  the  same  time,  and  as  part  of  thp 
same  transaction,  constitutes  separate  of- 
fenses. United  States  v.  Carpenter,  9:  1043, 
151  Fed.  214,  81  C.  C.  A.  194. 

3.  The  alteration  of  a  money  order,  and 
uttering  it  as  altered,  constitute  but  oup 
offense,  under  a  statute  providing  that  any 
person  who  shall  alter  any  money  order^ 
any  person  who  shall  utter  the  altered  ordeif, 
— shall  be  punished.  United  States  v.  Car- 
penter, 9:  1043,  151  Fed.  214,  81  C.  C.  A. 
194. 

4.  Although  counts  for  forgery  and  ut- 
tering a  forged  instrument  may  be  joined 
in  the  same  indictment,  and  the  state  cao,- 
not  be  compelled  to  elect  on  which  count  it 
will  go  to  the  jury,  a  conviction  canpot  be 
authorized  on  both.  State  v.  Carragin,  16: 
561,  109  S.  W.  553,  210  Mo.  351. 

(Annotated) 
'Whit  constitutes. 

5.  One  who  secures  the  execution  of  .9, 
duplicate  note  by  fraudulently  representing 
that  the  original  was  lost  or  destroyed  does 
not,  by  passing  it  for  value,  become  guilty 
of  forgery,  under  a  statute  making  the  pass- 
ing or  uttering  of  a  forged  instrument 
forgery,  on  the  theory  that  the  note  is  in 
fact  false  because  it  is  not  what,  on  its 
face,  it  purports  to  be.  People  v.  Pfeiffer, 
26:  138,  90  N.  E.  680,  243  111.  200. 

(Annotated) 

6.  The  affixing  to  a  note  of  a  signa- 
ture which  it  is  intended  shall  be  regarded! 
as  that  of  another  person  is  not  prevented 
from  being  forgery  by  the  circumstance 
that  the  name  is  misspelled.  State  v. 
Chance,  27:  1003,  108  Pac.  789,  82  Kan.  38a, 

(Annotated) 

7.  A  loan  agent  is  guilty  of  forgery  in 
signing  the  name  of  a  pretended  borrower 
to  a  note  for  the  purpose  of  deceiving  his 
client  into  the  belief  that  the  money  which 
had  been  furnished  him  had  been  lent  to 
the  person  who  signed  the  note.  People  v. 
Campbell,  34:  58,  125  N.  W.  42,  160  Mich. 
108. 

8.  One  cannot  avoid  his  authorized 
transfer  of  his  real  estate,  on  the  theory 
that  the  paper  he  signed  was  a  forgery 
because  he  was  deceived  into  signing  one 
of  a  different  character  than  he  intended  to 
sign,  where  the  ultimate  effect  of  the  one 
signed  and  the  one  intended  would  have 
been  the  same,  the  only  difference  being 
that  one  would  not  have  been  delivered 
until  the  price  was  paid,  while  the  other 
was  delivered  without  payment.  Conklin 
v.  Benson,  36:  537,  116  Pac.  34,  159  Cal. 
785.  (Annotated) 

9.  Uttering  a  letter  with  a  forged  signa- 
ture for  the  purpose  of  falsely  representing 
the  bearer  to  be  a  certain  well-known  per- 
son, friend  of  the  writer,  and  giving  him 
standing  with  persons  to  whom  it  may  be 
presented,  is  forgery,  under  a  statute  declar- 
ing guilty  of  that  offense  any  person  who 
shall  utter  a  letter  purporting  to  have  been 
signed  by  another  in  which  the  sentiments, 
opinions,  conduct,  character,  prospects,  inter- 
ests, or  rights  of  such  other  person  shall  be 


1316 


FORGETFULNESS— FORMULA. 


misrepresented  or  otherwise  injuriously  af- 
fected; the  latter  phrase  referring  to  charac- 
ter, interest,  etc.,  and  not  to  sentiments 
and  opinions.  People  v.  Abeel,  i :  730,  75  N. 
E.  30; ,  182  N.  Y.  415.  (Annotated) 

10.  That  a  sales  agent,  after  collect- 
ing money  from  a  customer,  forged  his 
note  and  turned  it  in  to  enable  himself  to 
retain  the  money  for  his  own  accommoda- 
tion, sufficiently  shows  intent  to  defraud  to 
sustain  a  conviction  of  forgery,  although  he 
also  intended  to  take  up  the  note  when  it 
fell  due.  Spears  v.  People,  4:  402,  77  N.  E. 
112,  220  111.  72. 

11.  A  notary  public  who  makes  a  certifi- 
cate of  acknowledgment  the  contents  of 
which  are  untrue  is  not  indictable  for  for- 
gery under  a  statute  making  it  unlawful 
falsely  to  make,  alter,  forge,  or  counterfeit 
any  public  record,  or  any  certificate,  return, 
or  attestation  which  may  be  received  as  le- 
gal proof.  Territory  v.  Gutierrez,  5:  375, 
84  Pac.  525,  13  N.  M.  312.         (Annotated) 

12.  An  offer  by  one  in  possession  of  a 
forged  check,  to  pass  it  to  another  person  as 
a  genuine  instrument,  constitutes  an  ut- 
tering and  publishing  of  the  check,  al- 
though the  ofler  was  not  accepted  and  he 
did  not  exhibit  the  forged  instrument. 
Walker  v.  State,  8:  1175,  56  S.  E.  113,  127 
Ga.  48.  (Annotated) 

13.  The  indorsement  upon  a  check  of  the 
name  of  a  fictitious  person  to  whom  it  was, 
by  fraudulent  procurement,  made  payable, 
is  forgery.  Harmon  v.  Old  Detroit  Nat. 
Bank,  17:  514,  116  N.  W.  617,  153  Mich.  73. 

14.  An  indorsement  upon  an  instrument 
is  within  the  provisions  of  a  statute  de- 
nouncing forgery,  that  every  signature,  and 
every  writing  purporting  to  be  such  signa- 
ture, shall  be  deemed  a  writing,  and  a  writ- 
ten instrument,  within  the  meaning  of  the 
statute.  State  v.  Carragin,  16:  561I  109  S. 
W.  553,  210  Mo.  351. 

"What  subject  of. 
See  also  supra,  9. 

15.  An  order  upon  a  merchant  purport- 
ing to  be  signed  by  one  having  credit  with 
him,  requesting  the  filing  of  an  order  to  a 
certain  amount,  is  the  subject  of  forgery, 
and  one  who,,  without  authority,  signs  the 
customer's  name  to  such  instrument,  and 
presents  it,  and  receives  goods  upon  it, 
will  be  guilty  of  that  offense,  although  it 
is  not  made  payable  to  bearer,  and  does 
not  in  terms  obligate  the  customer  to  pay 
for  the  goods.  Forcy  v.  State,  32:  327,  131 
S.   W.  585,  60  Tex.  Grim.  Rep.  200. 

(Annotated) 

16.  One  who  knowingly  presents  to  the 
carrier  a  forged  order  for  intoxicating 
liquor  which  had  been  ordered  in  the  name 
of  the  one  whose  name  is  signed  to  the  order 
is  guilty  of  uttering  a  forged  instrument 
both  with  respect  to  the  carrier,  who  is 
induced  to  make  a  wrong  delivery  of  the 
property,  and  to  the  consignee,  where,  had 
the  order  been  genuine,  he  might  have  been 
subjected  to  a  penalty  for  violation  of  the 
law  regulating  dealings  in  intoxicating  li- 
quors. State  v.  Webster,  32:  337,  70  S.  E. 
422,  88  S.  C.  56.  (Annotated) 
Digest  1-52  I..R.A.(N.S.) 


FORGETFULNESS. 

As  negligence,  see  Negligence,  245. 

Aa  contributory  negligence,  see  Highways, 

366. 
As  ground  for  relief  against  judgment,  see 

Judgment,  389. 
Of  attesting  witnesses  as  to  wlien  testator'* 

signature  was  affixed,  sec  Wills,  95. 


FORGIVENESS. 


As   defense  to   action  for  divorce,   see  Dl- 
voECE  AND  Separation,  72-78. 


FORMAMJEHYDE. 

Injury  to  tenant  by  forcing  formaldehyde 
into  his  room  to  eject  him,  see  Appeal 
AND  Ebbob,  1384. 


FORMA  PAUPERIS. 

Right  to  free  transcripts  of  notes  of  evidence 
taken  at  trial,  see  Appeal  and  Ebbob, 
1641, 


•♦♦» 


FORMER  JEOPARDY. 

See  Cbiminal  Law,  II.  g. 
♦  * » 
FORMER   OWNER. 

Admissibility    of    admissions    by,    see    Evi- 

DExNCE,  1247,  1248. 
Admissibility  of  acts  or  declarations  of,  see 

Evidence,  X.  f. 


FORMER  SUIT  PENDING. 

As   ground   of    abatement,    see   Abatement 
AND  Revival,  III. 


FORMER  TESTIMONY. 

Admissibility  of,  in  evidence,  see  Evidence, 
IV.  g,  X.  m. 


FORMULA. 


Unpatented  formulas  as  payment  for  stock, 
see  Corporations,  216. 


FORTHCOMING    BOND— FRANCHISES. 
FORTHCOMING  BOND.  FRACTION. 


1317 


Estoppel  by,  see  Estoppel,  220. 
Liability  on,  see  Levy  and  Seizure,  34. 


FORTUNE   TIXLING. 

Constitutionality  of  statute  forbidding  prac- 
tice of,  see  Constitutional  Law,  7G2. 

Validity  of  ordinance  forbidding,  see  Mu- 
nicipal Corporations,  214. 

1.  Fortune  telling  may  be  prohibited  by 
the  legislature  even  though  it  is  based  upon 
astrology,  which  is  a  science.  State  v.  Neit- 
zel,  43:  203,  125  Pac.  939,  69  Wash.  567. 

(Annotated) 


FOUNDATION. 


Underground  encroachment  on  land  by 
foundation  of  building,  see  Ejectment, 
2. 

For  admissibility  of  X-ray  photographs  as 
evidence,  see  Evidence,  892. 

For  impeachment  of  witness,  see  Witness- 
es, 139,  150,  166. 


FOUNDLING  HOSPITAL. 

Right  to  recover  custody  of  infant,  see  In- 
fants, 20. 


FOUNTAINS. 


Free  water  supply  for  drinking  fountains, 
see  Waters,  360-362. 


FOURTH  OF  JULY. 

Power  of  city  to  engage  in  conducting 
Fourth  of  July  celebration,  see  Munic- 
ipal Corporations,  79. 


FOWLING. 


On  ponds,  rights  as  to,  see  Fisheries,  12. 
Public  right  of,  on  seashore,  see  Waters, 
69. 


FO^VLS. 

Injunction  against  trespass  by,  sec  Injunc- 
tion, 196.  197. 
Digest  1-52  L.R.A.(N.S.) 


Of  day,  see  Time,  3. 


FRANCHISES. 


Who  may  complain  of  omission  to  obtain, 
see  Action  or  Suit,  41. 

Suit  by  attorney  general  to  annul,  see  At- 
torney General,  6. 

Of  corporations  generally,  see  Corporations. 

Of  electric  light  company,  see  Electric 
Lights,  1-4. 

Of  ferry,  see  Ferry,  3. 

Of  gas  company,  see  Gas,  3-9,  11,  34-52. 

Of  water  company,  see  Municipal  Corpora- 
tions, II.  f,  2;  Waters,  III. 

Of  street  railway  company,  see  Street  Rail- 
ways, I. 

Of  telegraph  company,  see  Telegraphs,  I. 

Of    telephone    company,    see    Telephones. 

To  use  highway,  see  Highways,  II. 

To  take  tolls,  see  Tolls  and  Toll  Roads. 

Forfeiture  of,  generally,  see  Corporations, 
VI. 

Jurisdiction  of  proceeding  to  forfeit,  see 
Courts,  233,  235. 

Injunction  against  forfeiture,  see  Injunc- 
tion, 382. 

Assignment  of  corporate  franchise,  see  Cor- 
porations, 21-32. 

Quo  warranto  to  declare  franchise  void,  see 
Courts,  233. 

Terms  of,  as  imposing  liability  on  electric 
railway  for  escape  of  electricity,  see 
Electricity,  3. 

Franchise  to  gas  company  as  monopoly,  see 
Gas,  11. 

Valuation  of  gas  franchise,  see  Gas,  34-52. 

Consent  by  municipality  to  use  of  streets 
by  corporation  as  license,  and  not  fran- 
chise, see  Highways,  14. 

Judicial  sale  of  right  to  use  of  wharf  fran- 
chise, see  Judicial  Sale,  3. 

Imposition  of  license  tax  on,  see  License, 
16-20,  45,   112,   113,   117. 

Sufficiency  of  ordinance  granting  lighting 
franchise  to  convey  right  to  use  streets, 
see  Municipal  Corporations,  68. 

Partial  invalidity  of  ordinance  granting,  see 

Municipal  Corporations,  82. 
Liability  of  municipality  for  repeal  of,  see 

Municipal  Cokporations,  392-394. 
Right  of  owner  of  franchise  for  public  bene- 
fit which  is  not  exclusive  to  injunction 
against  its  invasion  without  right,  see 
Nuisances,  100. 
Right  of  public  service  corporation  to  exer- 
cise, see  Public  Service  Corporations, 
5. 
Taxation  of,  see  Municipal  Corporations, 

49;  Taxes,  21,  74,  78,  123,  186. 
Consideration  of  franchise  in  estimating  val- 
ue  of   telephone   plant   for   purpose   of 
fixing  rates,  see  Telephones,  22. 

1.  A  constitutional  provision  requiring 
the  sale  of  public  franchises  to  the  highest 
bidder  does  not  prevent  a  municipal  corpora- 
tion   from    excluding    one     already    enjoy- 


131» 


FRATERNAL  SOCIETIES— FRAUD  AND  DECEIT. 


ing  a  similar  franchise  from  competition 
for  tlie  right  to  string  electric-lighi  wirea 
along  the  public  streets,  in  order  to  pre- 
vent a  monoply  of  the  business,  where  other 
sections  of  the  Constitution  show  an  inten- 
tion to  prevent  monoply  and  afford  oppor- 
tunity for  competition  in  all  things  neces- 
sary to  the  welfare  of  the  public.  Stites 
V.  Norton,  13:  474,  101  S.  W.  1189,  125  Ky. 
672. 

2.  Franchises  granted  for  useful  public 
purposes  will  not  be  withdrawn  by  forfeit- 
ure, except  for  abuses  of  such  a  nature  as 
injuriously  affect  the  public  welfare,  or  as 
violate  the  law  or  contract  obligations  con- 
tained in  the  grant.  State  ex  rel.  Ellis  v. 
Tampa  Waterworks  Co.  22:  680,  48  So.  639, 
67  Fla.  533. 


FRATERNAL  SOCIETIES. 

Insurance  by,  see  Ixsurance. 

Libel  by  letter  to  members  of,  in  regard  to 
collection  agent,  see  Libel  and  Slan- 
der, 111-113. 

See  also  Benevolent  Societies;  Railroad 
Relief  Associations. 


FRATERNITIES. 


In  schools,  see  Injunction,  321;  Schools, 
22,  23. 


FRAUD  AND  DECEIT. 

I.  In  general,   1—19. 
II.  Concealment;  failure  to  disclose 
facts,  20—29. 

III.  Matters    of    opinion    or    of    the 

future,  30—37. 

IV.  Intent,    Tcnowledge,    belief,    and 

reliance  of  parties,  38—60. 
V.  To  obtain  credit,  61—63. 
VI.  In   respect   to    negotiable   paper, 
64r-66. 
VII.  Misinformation  by  third  person, 
67,   68. 
VIII.  Remedies,    69—75. 

Abatement  of  cause  of  action  for,  see  Abate- 
ment and  Revival,  8. 

In  procuring  deed  to  timber,  see  Action  or 
Suit,  16. 

Ck>ndition8  precedent  to  suit  based  on,  see 
Action  or  Suit,  25. 

In  inducing  proposed  entrymen  of  govern- 
ment land  to  be^Jeve  that  land  has  al- 
ready been  entered,  see  Action  or  Suit, 
27. 

Right  of  appellate  court  to  pass  upon  merits 
of  plea  of,  see  Appeal  and  Error,  508. 

Review  of  finding  of  court  as  to,  see  Appeal 
AND  Error,  979,  982. 

Arrest  for,  see  Arrest,  15. 

Assignment  of  right  to  recover  damages  for, 
see  Assignment,  3. 

Dieest  1-52  I<.R.A.(N.S.) 


In  assignment  for  creditors,  see  Assignment 
for  Crkditors,  10. 

Right  of  assignee  for  creditors  to  goods  pro- 
cured by  insolvent  by  fraudulent  repre- 
sentations, see  Assignment  for  Cred- 
itors, 12. 

As  basis  of  action  for  money  had  and  re- 
ceived, see  Assumpsit,  11. 

Disbarment  of  attorney  for,  see  Attorneys, 
13,  23,  27,  28. 

Claim  for  deceit  not  reduced  to  judgment 
as  provable  debt,  see  Bankruptcy,  125. 

Giving  right  to  preference  in  bankruptcy 
proceedings,  see  Bankruptcy,  138. 

Effect  of  discharge  in  bankruptcy  on  claim 
for,  see  Bankruptcy,  125. 

Effect  of,  to  prevent  discharge  of  claim  in 
bankruptcy,  see  Bankruptcy,  IGl,  1G5, 
167-169,   174,  178. 

As  bar  to  right  to  discharge  in  bankruptcy, 
see  Bankruptcy,  75,  77,  152,  154,  15*5. 

Scheme  to  defraud  by  means  of  fictitious 
races,  see  Banks,  25,  189;  Contracts, 
587,  588. 

In  taking  deposit  while  bank  is  insolvent,  see 
Banks,  201-204,  206-208,  247-254. 

Of  savings  bank  in  paying  deposit  to  wrong 
person,  see  Banks,  239. 

Validity  of  promissory  note  given  to  se- 
cure secret  advantage  to  creditors,  see 
Bills  and  Notes,  19. 

In  representations  by  real  estate  broker  as 
to  value  of  property,  see  Brokers,  11. 

Effect  of  fraud  of  principal  on  compensation 
of  broker  negotiating  sale  of  property, 
see  Brokers,  59,  60. 

In  securing  passage  on  train  for  less  than 
regular  fare,  see  Carriers,  81. 

Duty  of  carrier  of  property  to  recognize  de- 
mand of  stranger  from  whom  it  was 
procured  by  fraud,  see  Carriers,  746. 

False  classification  or  description  by  ship- 
per, see  Carriers,  816-819. 

In  securing  contract  fixing  value  of  property 
transported,  see  Carriers,  933. 

Effect  of  fraud  in  obtaining  contract,  on 
right  to  sue  person  who  induces  breach 
thereof,  see  Case,  26. 

Compromise  agreement  in  action  by  one 
who  has  wrongfully  secured  letters  of 
administration,  see  Compromise  and 
Settlement,  4. 

Conflict  of  laws  as  to  sale  of  goods  bearing 
fraudulent  mark  of  quality,  see  Con- 
flict of  Laws,  115. 

Validity  of  statute  creating  presumption  of, 
see  Constitutional  Law,  140,  141. 
622. 

Imposing  license  fee  to  prevent,  sec  Con- 
stitutional Law,  704. 

Statute  of  frauds,  see  Contracts,  I.  e. 

Liability  on  oral  representations  as  to  an- 
other's credit,  see  Contracts.  190. 

Effect  of,  on  oral  contract,  see  Contracts, 
I.  e,  6. 

Effect  to  prevent  meeting  of  minds  in 
contract,   see  Contracts,   126-128. 

As  defense  to  action  on  contract,  see  Con- 
tracts, 775-777. 

Of  corporate  promoters,  see  Corporations, 
IV.  h. 


FRAUD  AND  DECEIT. 


1319 


In  issue  of  stock,  see  Corporations,  V.  d. 
In   overvaluation   of   property   paid   for   by- 
corporate  stoclv,  see  Corpoeatios,  V. 
f,   3,   b. 
Purchase   by   corporation  of  its   own   stock 

as,  see  Corporations,  81,  82. 
Liability  of  oflicers.  of   corporation   issuing 
fraudulent    prospectus,     see    Corpora- 
tions, 171. 
Equitable   relief   against   fraudulent   reduc- 
tion of  stock,  see  Corporations,  202. 
In  issue  of   corporate   stock,   see   Corpora- 
tions, 232,  233. 
In  inducing  purchase  of  corporate  stock,  see 
Corporations,  203,  208,  209 ;  Evidence, 
1689;   Limitation  of  Actions,  78,  79. 
In   overvaluation   of   property   paid   for   by 
corporate  stock,  see  Corporations,  354. 
Of  corporate  officers,  stockholder's  right  of 
action  for,  see  Corporations,  270,  280, 
282. 
As   basis  of  suit  to  recover  unpaid  stock 
subscription,    see   Corporations,    364a. 
As  defense  to  enforcement  of  subscription 

to  stock,  see  Corporations,  348,  349. 
Costs  in  action  for  conversion  of  proceeds  of 

notes  secured  by,  see  Costs,  1. 
Jurisdiction  of  prosecution  for,  see  Courts, 

25, -45. 
In    joining    party    to    prevent    removal    of 
cause    to    Federal    court,    see    Courts, 
287;    Removal  op  Causes,   11-14,  23, 
26,  28. 
Effect  of  false  report  by  girl  as  to  age  on 
statutory  liability  for  harboring  female 
for   purpose  of   sexual  intercourse,  see 
Criminal  Law,  16. 
Fraudulent  concealment  of  assets  of  bank- 
rupt as  continuing  offense,   see  Crim- 
inal Law,  20. 
Punitive  damages  for,  see  Damages,  50. 
Measure  of  damages  for,  see  Damages,  III. 

f. 
As   ground    for    revocation    of   dentist's   li- 
cense, see  Dentists,  2. 
As   ground   for   divorce,    see   Divorce   and 

Separation,  64. 
In  elections,  see  Elections,  III.  d. 
Jurisdiction  of  equity  to  determine  in  will 

contest,  see  Equity,  115. 
Effect    of,    on    right    to    equitable    enforce- 
ment of  contract,  see  Equity,  140,  141. 
Estoppel  by,  see  Estoppel,  III.  h:  III.  i. 
Estoppel  to  set  up,  see  Estoppel,  68,  80, 

182,  258. 
Presumption  and  burden  of  proof  as  to,  see 

Evidence,  II.  e,  7. 
Parol  proof  of,  see  Evidence,  VI.  h. 
Evidence    as    to    generally,    see    Evidence, 

XL  e. 
Sufficiency    of    evidence    of,   ^ee   Evidence, 

XII.  c,  2353,  2414-2415a. 
Admissions  of  attorney  to  show,  see  Evi- 
dence, 1255. 
Admissibility    of   declarations   to   prove   or 

disprove,  see  Evidence,  1387,  1389. 
Proof  of  good  character  of  one  accused  of, 

see  Evidence,  1550. 
Evidence  as  to  fraudulent  intent,  see  Evi- 
dence, 1625-1627. 
Digest  1-52  L.R.A.(N.S.) 


Other  instances  of  fraud,  see  Evidence 
1883-1886. 

Proof  of  fraudulent  procurement  of  lease 
set  up  by  answer  in  action  of  unlawful 
detainer,  see  Evidence,  2435. 

Effect  of  fraud  in  obtaining  on  credit  goods 
deposited  in  warehouse  on  rights  of 
transferee  of  warehouse  receipts,  see 
Evidence,  591. 

In  obtaining  letters  of  administration,  see 
Executors  and  Administrators,  24. 

By  executor  in  sale  of  real  estate,  see  Ex- 
ecutors and  Administrators,  58. 

Impeachment  of  executor's  account  for,  see 
Executors  and  Administrators,  125. 

Obtaining  money  by  false  pretenses,  see 
False  Pretenses. 

Transfers  in  fraud  of  creditors,  see  Fbaud- 
ulent  Conveyances. 

Satisfying  judgment  for,  out  of  homestead, 
see  Homestead,  30. 

On  marital  rights,  see  Husband  and  Wife, 

n.  j. 

Of  wife  acting  as  husband's  agent ;  effect  on 
husband's  rights,  see  Husband  and 
Wife,  22,  23. 

Liability  of  community  property  for  hus- 
band's fraud,  see  Husband  and  Wife, 
84. 

Action  by  wife  for  deceit  in  making  false 
representations  to  her  about  her  hus- 
band, see  Husband  and  Wife,  171. 

Existence  of,  as  justifying  imprisonment  for 
debt,  see  Imprisonment  foe  Debt,  2, 
3,  6,  8. 

Disaffirmance  of  contract  by  infant  because 
of,  see  Infants,  71. 

Infant's  fraudulent  misrepresentations  as 
to  age,  see  Infants,  92,  93;  Master 
AND  Servant,  154-156,  173-176. 

Necessity  of  showing,  as  condition  to  avoid- 
ance of  release  by  infant  of  cause  of  ac- 
tion for  injuries,  see  Infants,  109. 

Injunction  against  wholesaler  who  places 
means  of  fraud  in  hands  of  retailers, 
see  Injunction,  98. 

Jurisdiction  of  equity  to  enjoin  seizure  of 
property  sale  of  which  was  secured  by 
fraud,  see  Injunction,  275. 

Judgment  obtained  by,  see  Injunction, 
287 ;  Judgment,  278,  329,  330,  341,  342. 
353-379,  390,  391,  394,  395,  398;  Jus- 
tice of  the  Peace,  2;  Plbiading,  171, 
434,   435,  437. 

In  use  of  trademark  as  defense,  see  In- 
junction, 401. 

By  insolvent  debtor  in  preferring  creditor, 
see  Insolvency,  2. 

In  application  for  insurance,  see  Insue- 
ance.  III.  e. 

Waiver  of  fraudulent  misrepresentations, 
see  Insurance,  V.  b. 

Cancelation  of  insurance  policy  for,  see 
Insurance,  151-153,  434-444. 

In  padding  inventory  in  proofs  of  loss,  see 
Insurance,  375. 

Effect  of,  on  right  to  recover  unearned  pre- 
mium, see  Insurance,  434-444. 

As  defense  to  action  on  insurance  policy, 
see  Insurance,  852,  856,  894. 


1320 


FRAUD  AND  DECEIT,  L 


In  securing  release  from  beneficiary  of  in- 
surance   policy,    see    Insubance,    872, 
894. 
New   trial    for,   see  JtrDGMENT,    123;    New 
Trial,  26,  27. 

Proof  of  claim  in  bankruptcy  as  bar  to 
action   for  deceit,   see  Juimjment,    155. 

EflFect  of  fraudulent  procurement  of  lease 
in  action  of  unlawful  detainer,  see 
Landlord  and  Tenant,  205. 

Larceny  of  money  obtained  by,  see  Labceny, 
25-37. 

Effect  of,  on  running  of  limitations,  see 
Limitation  of  Actions,  II.  e. 

Effect  of,  on  bar  of  limitations,  see  Limi- 
tation op  Actions,  III.  e. 

In  location  of  mine,  see  Mines,  21. 

Priority  of  mortgage  over  rights  of  former 
owner  of  property  to  rescind  sale  for 
fraud,  see  Mortgage,  41. 

Validity  of  ordinance  as  to  fortune  telling, 
palmistry,  etc.,  see  Municipal  Corpo- 
rations, 214. 

Liability  of  notary  taking  acknowledgment 
to  fraudulent  instrument,  see  Notary, 
1. 

Notice  of  fraud  of  grantor,  see  Notice,  2-4. 

Imputing  to  principal  agent's  knowledge  of 
his  own  wrong,  see  Notice,  33-45. 

Action  against  copartner  for,  see  Partner- 
ship, 87. 

Misrepresentations  as  to  contents  of  in- 
strument as  supporting  plea  of  non  est 
factum,  see  Pleading,  126-128. 

Pleading  as  to,  see  Pleading,  198,  199.  203, 
381-389,   408-410,    480,   481,    528,'  551. 

Sufficiency  of  pleading  to  show  fraud  which 
will  prevent  bar  of  limitations,  see 
Pleading,  203. 

Departure  in  reply  attempting  to  defeat 
defense  of,  see  Pleading,  556. 

Cancelation  for,  of  notes  held  as  collateral, 
see  Pledge  and  Collateral  Security, 
17. 

In  issue  of  money  order,  see  Postoffice,  4. 

Use  of  mails  to  defraud,  see  Postoffice, 
6-11. 

Of  agent,  see  Principal  and  Agent,  II,  c; 
103-105,  114. 

As  defense  to  surety's  liability,  see  Princi- 
pal and  Surety,  66. 

Of  one  contending  in  prize  contest,  see 
Prize   Contest,   3. 

Cancelation  of  patent  for  public  land  be- 
cause of,  see  Public  Lands,  15. 

In  measurement  of  property  sold,  see 
Sale,  16. 

In  sale  of  animals,  see  Sale,  131. 

Attacking  sealed  instrument  for  fraud,  see 
Seal,  4. 

As  ground  for  specific  performance,  see 
Specific  Performance,  76. 

Effect  of,  on  right  to  specific  performance 
of  contract,  see  Specific  Performance, 
114. 

False  representations  by  owner  of  trade- 
mark as  defense  to  liability  for  in- 
fringement, see  Trademark,  27. 

Necessity  of  fraudulent  intent  to  constitute 
unfair  competition,  see  Tradename,  9. 

Digest  1-52  I^R.A.(N.S.) 


Effect  of,  on  right  to  protection  in  use  of 
tradename,   see   Tradename,    20,   21. 

Question  for  jury  as  to,  see  Trial,  II.  c,  6. 

Instructions  as  to,  see  Trial,  945. 

Sufliciency  of  findings  to  show  fraud  requir- 
ing reversal  of  decree,  see  Trial,  1108. 

Constructive  trust  arising  from,  see  Trusts, 
I.  d. 

Liability  of  trust  estate  for  fraud  of  trus- 
tee, see  Trusts,  139-142. 

Materiality  of  fraud  of  vendor,  see  Vendor 
and  Purchaser,  15. 

In  interfering  with  revocation  of  will,  see 
Wills,  40. 

Competency  of  witness  in  action  to  set  aside 
deed  for,  see  Witnesses,  49. 

/.  In  general. 

(Bee  also  same  heading  in  Digest  L.R.A. 
1-WJ 

1.  Suspicion  that  a  statement  of  facts 
made  to  effect  the  sale  of  a  chattel  may  be 
false  is  sufficient,  if  it  proves  to  be  so,  to. 
sustain  an  action  for  deceit.  Shackett  v. 
Bickford,  7:  646,  65  Atl.  252,  74  N.  H.  47. 

(Annotated) 

2.  One  who  makes  a  false  representa- 
tion owes  no  duty  of  care  to  tell  the  truth 
to  those  to  whom  he  does  not  communicate 
it,  and  to  whom  he  does  not  anticipate  that 
it  will  be  conveyed,  and  a  person  of  ordinary 
prudence  and  intelligence  would  not  antici- 
pate that  it  would  be  conveyed;  and  such 
parties  liave  no  cause  of  action  against  him 
for  injuries  they  sustain  in  reliance  upon  it. 
Western  L'.  Teleg.  Co.  v.  Schriver,  4:  678, 
141  Fed.  538,  72  C.  C.  A.  596. 

3.  Wherever  two  persons  stand  in  such 
a  relation  that,  while  it  continues,  confi- 
dence is  necessarily  reposed  by  one,  and 
the  influence  which  naturally  grows  out  of 
that  confidence  is  possessed  by  the  other, 
and  this  confidence  is  abused,  or  the  in- 
fluence is  exerted  to  obtain  an  advantage 
at  the  expense  of  the  confiding  party,  or, 
by  concealment  of  material  facts,  the  same 
result  follows,  the  person  so  availing  him- 
self of  his  position  will  not  be  permitted  to 
retain  any  advantage  gained,  although  the 
transaction  could  not  have  been  impeached 
if  no  such  confidential  relation  had  existed. 
Thomas  v.  Thomas,  35:  124,  109  Pac.  825, 
113  Pac.  1058,  27  Okla.  784. 

4.  An  action  for  deceit  for  inducing 
the  consolidation  of  two  corporations  by 
false  representations  as  to  the  financial  con- 
dition of  one  of  them  will  not  lie,  no  fidu- 
ciary relation  existing  between  the  parties, 
where  there  was  no  concealment  of  anything, 
and  the  person  injured  was  competent  and 
able  to  have  investigated,  and  was  not  kept 
from  doing  so,*  and  it  does  not  appear  that 
an  examination  was  in  fact  made.  Pigott  v. 
Graham,  14:1176,  93  Pac.  435,  48  Wash.  349. 

(Annotated) 

5.  An  agreement  made  by  a  corporation 
denominated  a  funding  company,  by  which 
it  promises  to  pay  to  each  investor,  upon 
tlie  maturity  of  his  certificates,  half  as 
much     money    again    as     he    invested,    is 


FRAUD  AND  DECEIT,  I. 


1321 


fraudulent  upon  its  face,  where  it  is  pro- 
posed to  take  the  money  of  one  investor 
to  pay  the  other,  with  no  provision  for  the 
ultimate  payment  of  those  whose  money  is 
thus  taken,  and  large  profits  arc  promised 
which  are  not  earned  or  expected  to  be 
earned  in  the  business,  and  there  is  no  prop- 
erty or  capital  for  such  payment,  but  the 
abilitj'  of  the  company  to  perform  its 
promises  depends  upon  contingencies  which 
it  can  neither  perform  nor  foretell.  Fi- 
delity Funding  Co.  v.  Vaughn,  lo:  1123,  90 
Pac.  34,  18  Okla.  13. 

6.  A  continuation  of  stock  in  the  name 
of  one  person  on  the  books  of  the  corpora- 
tion, when  the  title  is  in  another,  does  not 
constitute  fraud.  Gray  v.  Graham,  49: 
1 159,  89  Atl.  262,  87  Conn.  601. 

7.  A  false  statement  of  the  cost  of  cor- 
porate stock  which  one  is  trying  to  sell  to 
a  friend  to  whom  he  makes  a  promise  to 
secure  for  him  employment  with  the  cor- 
poration, as  part  of  the  inducement  for  the 
purchase,  is  such  fraud  as  will  justify  a 
rescission  of  a  purchase  made  in  reliance 
thereon,  and  a  judgment  for  return  of  the 
consideration,  or  damages  in  case  it  has 
passed  out  of  the  possession  of  the  vendor. 
Kohl  V.  Taylor,  35:  174,  114  Pac.  874,  62 
Wash.  678.  (Annotated) 

8.  An  architect  is  guilty  of  fraud  who, 
to  secure  the  contract  for  preparing  plana 
and  supervising  the  construction  of  a  build- 
ing, states  positively  that  the  cost  of  a 
structure  of  the  general  character  desired 
will  not  exceed  a  specified  sum,  when  he 
knows  that  such  is  not  the  fact.  Edward 
Barron  Estate  Co.  v.  Woodruff  Co.  42:  125, 
126  Pac.  351,  163  Cal.  561. 

(Annotated) 

9.  The  deceit  of  one  in  securing  a  con- 
tract to  prepare  plans  for  a  building  and 
supervise  its  construction,  by  false  repre- 
sentations that  he  has  skill  as  an  architect, 
permeates  the  execution  of  the  contract  so 
as  to  render  him  liable  to  the  owner  in 
case  he  suffers  loss  through  absence  of 
knowledge  and  skill  on  the  part  of  the  one 
making  the  representations.  Edward  Bar- 
ron Estate  Co.  v.  Woodruff  Co.  42:  125,  126 
Pac.  351,   163  Cal.  561. 

10.  Fraud  in  securing  signature  to  a 
deed  of  standing  timber  by  false  represen- 
tations as  to  its  contents  is  in  th3  treaty, 
BO  that  the  deed  is  not  absolutely  void  as 
against  a  subsequent  transferee;  and  an  ac- 
tion will  lie  against  the  grantee  for  the 
damages  caused  by  the  fraud.  Griffin  v. 
Roanoke  R.  &  Laimber  Co.  6:  463,  53  S.  E. 
307,  140  N.  C.  514. 

11.  A  mine  need  not  be  shown  to  be 
worthless  to  entitle  one  defrauded  into  pur- 
chasing it  to  hold  the  seller  liable  for  the 
loss  thereby  indicted  upon  him.  Tooker  v. 
Alston,  16:  818,  159  Fed.  599,  86  C.  C.  A. 
425. 

12.  One  cannot  escape  liability  for  fraud 
In  the  sale  of  a  mining  lease  because  a  por- 
tion of  what  the  purchaser  is  induced  to 
^uy  belongs  to  another  person.  Tooker  v. 
A.l3ton,  16:  818,  159  Fed.  599,  86  C.  C.  A. 
425. 

Digest  1-52  I,.B.A.(N.S.) 


13.  A  misrepresentation  of  the  location, 
with  reference  to  a  suburban  street,  of 
platted  lots,  involves  a  material  matter; 
and  where  the  location  of  such  lots  is  shown 
on  the  plat  by  the  government  subdivision 
only,  their  location  with  reference  to  the 
city  limits  or  suburban  street  is  not  a  mat- 
ter so  readily  ascertainable  that  a  purchaser 
is  not  justified  in  relying  on  the  representa- 
tion made  in  reference  thereto  by  the  seller. 
Ballard  v.  Lyons,  38:  301,  131  N.  W.  320, 
114  Minn.  204.  (Annotated) 

14.  An  insurer  of  an  employer  who 
fraudulently  induces  the  guardian  of  a 
minor  employee  injured  by  the  employer's 
negligence,  to  bring  an  action  for  the  in- 
juries for  a  nominal  sum,  and  secures  entry 
of  the  judgment  therein,  is  liable  to  the 
minor  for  the  full  amount  of  the  actual 
damages  caused  by  the  injury.  McGillvray 
V.  Employers'  Liability  Assur.  Corp.  46: 
no,  102  N.  E.  77,  214  Mass.  484. 

( Annotated ) 

15.  A  broker  who,  having  authority  to 
sell  real  estate  at  a  certain  price,  secures 
a  higher  price  from  the  purchaser  by  means 
of  a  positive  statement  that  that  is  the 
least  the  owner  will  take  for  the  property, 
and  that  it  is  a  bargain  at  that  price,  is 
liable  to  the  purchaser  in  an  action  for 
deceit  for  the  difference  secured  through  his 
false  representations.  Hokanson  v.  Oat- 
man,  35:  423,  131  N.  W.  Ill,  165  Mich.  512. 

16.  One  who  lends  money  to  an  insane 
person  with  which  to  purchase  real  estate 
cannot,  where  both  he  and  tlie  vendor  act 
independently  and  without  knowledge  of 
the  insanity,  compel  the  vendor  to  return 
the  money  to  him  on  the  ground  of  fraud. 
Murphree  v.  Clisby,  29:  933,  52  So.  907, 
168  Ala.  339. 

17.  An  action  for  deceit  will  not  lie 
against  one  who,  when  pointing  out  the  true 
boundaries  of  a  tract  of  land  he  is  about 
to  sell,  fraudulently  overstates  its  area, 
there  being  no  trust  relation  between  the 
parties,  if  he  does  not  dissuade  full  exami- 
nation and  measurement,  and  the  estate  is 
not  so  extensive  or  of  such  character  as 
to  be  reasonably  incapable  of  inspection  and 
estimate.  Mabardy  v.  McHugh,  23:  487, 
88  N.  E.  894,  202  Mass.  148.  (Annotated) 
Inducing  marriage. 

Annulment  of  marriage  for,  see  Conb'lict  of 

Laws,  81,  82;   Makriage,  32-36. 
Measure  of  damages  for,  see  Damages,  321. 
Pleading  as  to,  see  Pleading,  380. 

18.  An  action  for  fraud  and  deceit  will 
lie  against  one  who  fraudulently  induces  a 
woman  to  enter  into  a  void  marriage  rela- 
tion with  him,  by  assurances  that  an  exist- 
ing marriage  into  which  he  has  entered  witli 
another  is  void.  Sears  v.  Wegner,  14:  819, 
114  N.  W.  224,  150  Mich.  388. 

19.  A  person  who,  to  induce  a  marriage 
with  her  son,  falsely  represents  that  the  son 
is  the  owner  of  certain  specified  real  estate, 
is  liable  in  damages  to  a  woman  who  enters 
into  a  marriage  with  the  son  in  reliance  on 
the  representations.  Beach  v.  Beach,  46: 
98,   141   N.  W.  921,  160  Iowa,  346. 

( Annotated ) 


1322 


FRAUD  AND  DECEIT,  II.,  III. 


//.  Concealment;    failure     to     disclose 
facta. 

(See  also   same  heading  in  Digest   L.R.A. 
1-10.) 

'By  officer  purchasing  stock  from  sharehold- 
er, see  Corporations,  157. 
EflFect    of,    on    running   of   limitations,    see 
Limitation  of  Actions,  II.  e. 
•  Effect  of,  on  bar  of  limitations,  see  Limita- 
tion OF  Actions,  III.  e. 
Concealment  of  epilepsy  as,  see  Mabbiage, 

32. 
Concealing  defect  in  automobile  from  pur- 
chaser, see  NEX3LIGENCE,  50. 

20.  The  holder  of  a  mortgage  who  fore- 
closes it  by  advertisement  and  sells  the 
property,  with  knowledge  that  the  mort- 
gagor has  no  title  and  that  a  purchaser  will 
receive  no  consideration  for  his  money,  is 
liable  for  fraud  to  one  who  bids  in  the 
property  on  the  faith  of  the  advertisement. 
Dirks  Trust  &  Title  Co.  v.  Koch,  49:  513, 
143  N.  W.  952,  32  S,  D.  S^^l.       (Annotated) 

21.  One  who  knowingly  sells  a  house 
located  over  a  cesspool  which  receives  the 
drainings  from  his  other  building,  and  is 
completely  concealed  from  view,  without 
notifying  the  purchaser  of  the  existence  or 
the  pool,  is  liable  in  damages  as  for  fraud 
to  the  extent  of  the  expense  and  loss  to 
which  the  purchaser  is  subjected  because 
of  it.  Weikel  v.  Sterns,  34:  1035,  134  S. 
W.  908,  142  Ky.  513.  (Annotated) 

22.  The  purchase  by  an  insolvent  of 
goods  on  credit  without  disclosing  the 
facts  that  he  has  given  a  mortgage  upon 
his  present  and  future  property,  to  secure 
an  existing  indebtedness,  is  such  fraud  as 
to  give  the  vendor  a  right  to  avoid  the  sale 
and  sue  to  recover  the  property,  or  to  re- 
cover the  value  of  the  goods  from  the  pur- 
chaser in  an  action  for  fraud,  with  the  reme- 
dies afforded  by  statute  in  such  cases,  or 
to  proceed  against  him  in  bankruptcy. 
Louisville  Dry  Goods  Co.  v.  Lanman,  28: 
363,  121  S.  W.  1042,  135  Ky.  163. 

23.  Mere  failure  of  an  executor  to  give 
notice  to  a  residuary  legatee,  after  settling 
the  estate  as  insolvent,  of  the  fact  that  after 
his  discharge  he  had  secured  title  to  the 
real  estate  of  the  testator,  is  not  fraud. 
Williams  v.  Woodruff,  5:  986,  85  Pac.  90, 
35  Colo.  28. 

24.  The  sale  of  a  remainder  at  the  price 
it  was  worth  if  the  life  tenant  was  in  good 
health  will  be  set  aside,  where  the  pur- 
chaser, with  knowledge  that  the  life  tenant 
was  on  his  deathbed,  sought  the  remainder- 
man, and,  with  knowledge  of  his  i^gnorance 
of  the  facts,  gave  a  misleading  answer  to 
a  question  as  to  how  the  life  tenant  was  get- 
ting akmig,  with  the  object  of  affirmatively 
deceiving  him,  and  thereby  secured  the 
trade.  Hays  v.  Meyers,  17:  284,  107  S.  W. 
287,   139  Ky.  440.  (Annotated) 

25.  One  who  actively  conceals  the  condi- 
tion of  a  mine,  thwarts  investigation,  and 
misrepresents  the  significance  of  apparent 
conditions,  cannot  take  advantage  of  the 
Digest  1-52  KR.A.(N.S.) 


rule  that  the  law  will  not  aid  a  purchaser 
who  fails  to  avail  himself  of  the  ordinary 
means  of  information.  Tooker  v.  Alston, 
16:  818,  159  Fed.  599,  86  C.  C.  A.  425. 

26.  One  who  sells  a  lease  of  a  worked- 
out  mine  which  is  subject  to  forfeiture  if 
operations  which  cannot  be  profitably  con- 
ducted are  suspended,  by  concealing  and 
disguising  the  physical  conditions  of  the 
property,  making  false  statements  of  ex- 
isting facts  within  his  knowledge  of  which 
the  purchaser  is  ignorant,  made  with  intent 
that  the  purchaser  shall  rely  on  them,  which 
he  does,  is  liable  to  him  for  the  difference 
between  the  price  which  he  pays  and  the 
value  of  what  he  gets.  Tooker  v.  Alston, 
16:  818,  159  Fed.  599,  86  C.  C.  A.  425. 

27.  In  case  of  the  termination  of  the 
agency  of  one  who  has  undertaken  to  sell 
another's  stock,  so  that  he  id  at  liberty  to 
purchase  for  himself,  the  confidential  rela- 
tion may  be  found  to  continue  so  that  con- 
cealment by  him  of  opportunities  which  he 
has  for  resale,  knowing  that  the  principal 
is  relying  on  him  for  information,  may 
amount  to  fraud  which  will  render  him  lia- 
ble for  the  difference  between  what  he  pays 
for  the  stock  and  its  true  value.  Mc- 
Donough  V.  Williams,  8:  452,  92  S.  W.  783, 
77  Ark.  261. 

28.  Where  several  persons,  for  the  pur- 
pose of  buying  a  horse,  mutually  agree  to 
pay  a  certain  price  for  him,  a  secret  agree- 
ment between  the  vendor  and  one  of  them, 
whereby  he  receives  his  share  in  the  horse 
for  nothing  for  securing  the  others  to  join 
with  him  in  the  purchase,  is  such  a  fraud 
as  will  entitle  the  purchasers  to  defeat  re- 
covery on  the  notes  evidencing  their  promise 
to  pay  the  purchase  money.  Noble  v.  Fox, 
43:  933f  128  Pac.  102,  35  Okla.  70. 

(Annotated) 

29.  A  purchaser  of  real  estate  cannot 
hold  the  vendor's  broker  liable  on  the  ground 
of  fraud  for  the  difference  between  what  he 
paid  for  the  property  and  what  the  broker 
actually  secured  it  for  from  the  vendor,  be- 
cause the  broker  assured  him  that  the  price 
paid  was  the  least  the  vendor  would  take 
for  the  property,  where  no  means  were  taken 
to  prevent  the  purchaser  from  making  per- 
sonal inquiry  of  the  vendor  as  to  such  fact. 
Ripy  V.  Cronan,  21:  305,  115  S.  W.  791,  131 
Ky.  631.  (Annotated) 

///.  Matters  of  opinion  or  of  the  future. 

(See  also   same  heading  in  Digest  L.R.A. 
1-10.) 

Of    officer    purchasing    stock    from    share- 
holder, see  Corporations,  157. 

30.  A  representation  of  intention  as  to 
future  acts  or  events,  not  having  been 
falsely  made  with  the  purpose  to  deceive, 
is  not,  though  the  act  or  event  did  nofc 
occur  as  represented,  a  sufficient  ground 
upon  which  to  predicate  a  charge  of  fraud, 
or  be  made  the  basis  for  the  rescission  of 
a  contract  induced  and  brought  about  by 


FRAUD  AND  DECEIT,  IV, 


1323 


the    representation.       Bigelow     v.     Barnes, 
45:  203,  140  N.  \V.   1032,  121  Minn.  148. 

31.  A  representation  made  by  the  agent 
of  an  insurer  to  the  effect  that  if  the  as- 
sured, who  proposed  to  let  her  policy  lapse, 
should  continue  paying  premiums  for  four 
more  years  she  would  be  entitled  to  a  free 
or  paid-up  policy,  is  not  a  mere  promise 
as  to  what  would  be  done  in  juturo, 
but  a  statement  of  the  company's  existing 
practice,  and  consequently  a  representa- 
tion as  to  a  present  existing  fact,  and  will 
therefore  support  an  action  for  deceit,  the 
measure  of  damages  in  which  will  be  the 
amount  of  the  premiums  paid.  Kettlevvell 
V.  Refuge  Assur.  Co.  3  B.  R.  C.  844,  [1908] 
1  K.  B.  545.  Also  Reported  in  77  L,  J.  K. 
B.  N.  S.  421,  97  L.  T.  N.  S.  896,  24  Times 
L.  R.  217,  52  Sol.  Jo.  158. 

32.  That  a  conveyance  of  a  half  interest 
in  the  coal  and  minerals  underlying  the 
grantor's  lands  is  made  on  the  faith  of  a 
representation  that  the  grantee  will  locate 
manufacturing  plants  on  or  near  the  prop- 
erty, and  secure  railroad  communication 
therewith,  which  promise  is  not  intended 
to  be,  and  is  not,  performed,  does  not  entitle 
the  grantor  to  a  cancelation  of  tlie  convey- 
ance on  the  ground  of  fraud.  Miller  v. 
Sutliff,  24:  735,  89  N.  E.  651,  241  111.  521. 

(Annotated) 

33.  Taking  advantage  of  the  other  party 
to  an  exchange  of  lands  by  making  prom- 
ises with  respect  to  the  construction  of 
buildings  on  the  property  deeded  by  the 
promisor  which  the  promisor  does  not  in- 
tend to  fudfil  is  such  fraud  as  will  en- 
title the  other  party  to  a  rescission  of  the 
contract.  Braddy  v.  Elliott,  16:  1121,  60 
S.  E.  507,  146  N.  C.  578. 

34.  A  trade  of  a  farm  for  stock  in  a  cor- 
poration and  a  promise  of  a  salaried  posi- 
tion in  the  concern  will  not  be  rescinded 
for  breach  of  the  promise,  on  the  theory  of 
misrepresentation.  Younger  v.  Hoge,  18: 
94,  111  S.  W.  20,  211  Mo.  444. 

35.  Puffing  the  mining  claims,  or  mak- 
ing glowing  predictions  as  to  how  they  will 
"pan  out,"  does  not  amount  to  such  false 
representations  as  will  authorize  a  court  of 
equity  to  set  aside  a  sale  of  mining  stock 
when  the  parties  are  compos  mentis  and 
deal  at  arm's  length.  Burwash  v.  Ballou, 
15:  409,  82  N.  E.  355,  230  111.  34. 
Estimates  and  valuations. 

36.  One  who  buys  an  ice  plant  with 
knowledge  that  its  operation  had  been  aban- 
doned because  its  output  did  not  equal  its 
capacity,  and  after  having  full  opportunity 
to  investigate  its  condition,  cannot  avoid 
paying  the  purchase  price  because  the  vend- 
or stated  that,  with  some  repairs,  it  would 
turn  out  about  a  certain  amount  per  day. 
Williamson  v.  Holt,  17:  240,  61  S.  E.  384, 
147  N.  C.  515. 

37.  The  secretary  of  a  corporation  who  is 
also  a  stockholder  cannot  maintain  an  action 
against  the  other  officers  for  fraudulent 
representations  upon  which  he  acted,  and 
which  were  alleged  to  have  been  made  to  in- 
duce him  to  dispose  of  his  stock  to  them  at  a 
loss,  where  they  amount  merely  to  repre- 
Digest   1-52  I<.B.A.(N.S.) 


mentations  that  the  corporation  was  going 
down,  that  one  had  bought  the  other's  shares 
and  was  going  to  run  the  business  as  a 
family  affair,  and  would  depose  the  secre- 
tary, and  that  this  was  his  last  chance  to 
get  his  money  out;  and  the  fact  that  he  was 
not  permitted  to  keep  the  books  down  to 
date,  so  that  he  did  not  know  the  actual 
state  of  the  business,  is  immaterial.  Boulden 
v.  Stilwell,  i:  258,  60  Atl.  609,  100  Md.  543. 

(Annotated) 

IV.  Intent,   knowledge,   belief,  and  re- 
liance of  parties. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Of  party  deceiving  or  making  state- 
ments. 

Estoppel  by,  see  Estoppel,  III,  h. 

38.  To  render  one  liable  in  damages  for 
deceit,  he  must  have  knowingly  made  a 
false  representation  with  intent  to  deceive, 
and  it  must  have  been  acted  upon  by  an- 
other to  his  injury,  without  notice  of  the 
falsity.  Beach  v.  Beach,  46:  98,  141  N,  W. 
921,    160   Iowa,   346. 

39.  One  who  makes  representations  to 
another  of  material  facts,  for  the  purpose 
of  inducing  that  other  to  enter  into  con- 
tractual relations  with  him,  and  which  are 
liable  to  accomplish  the  purpose  without 
want  of  ordinary  care  on  the  part  of  such 
other,  is  bound  at  his  peril  to  know  whereof 
he  speaks.  Kathan  v.  Comstock,  28:  201, 
122  N,  W.  1044,  140  Wis.  427. 

40.  A  representation  by  one  claiming  a 
tax  title  to  real  estate,  that  the  title  is  per- 
fect,— made  for  the  purpose  of  securing  a 
conveyance  in  form  by  the  true  owners,  for 
a  nominal  consideration, — which  can  only 
be  true  in  case  the  land  was  vacant  and 
unoccupied  during  the  period  necessary  to 
perfect  the  title  under  the  statute,  involves 
a. representation  that  it  was  so  in  fact;  and 
if  such  representation  was  false,  the  one 
making  it  is  guilty  of  fraud  in  law,  which 
will  entitle  the  grantor  to  a  rescission  of 
the  contract,  although  the  one  making  it 
had  no  knowledge  on  the  subject,  and  be- 
lieved it  to  be  true.  Kathan  v.  Comstock, 
28:  201,  122  N.  W.  1044,  140  Wis.  427. 

(Annotated) 

41.  A  party  is  guilty  of  fraud  and  de- 
ceit where,  with  intent  to  induce  another 
to  enter  into  a  contract,  he  makes  a  posi- 
tive assertion,  which  is  material,  in  a  man- 
ner not  warranted  by  his  information,  or 
where  he  is  not  shown  to  have  reasonable 
grounds  for  believing  it  true,  where  the 
assertion  so  made  is  not  true,  even  though 
believed  by  the  party  making  it.  Garvin 
V.  Harrell,  35:  862,  113  Pac.  186,  27  Okla. 
373. 

42.  If  a  seller  makes  positive  state- 
ments and  representations  not  known  by 
him  to  be  true,  intending  to  induce  a  sale, 
and  a  purchase  is  made  in  reliance  upon 
his  representations,  which  turn  out  to  be 
false,  his  action  is  fraudulent,  and  he  is  aa 


1324 


FRAUD  AND  DECEIT,  IV. 


answerable  to  the  purchaser  as  if  he  made 
the  representations  knowing  them  to  be 
false.  Morrow  v.  Bonebraite,  34:  1147,  115 
Pac.  585,  84  Kan.  724. 

43.  A  fraudulent  intent,  from  the  re- 
sults of  which  escape  cannot  be  had,  will  be 
imputed  to  a  vendor  who,  in  reconveying 
property,  manifests  a  gross  and  culpable 
carelessness  and  negligence,  which  results 
in  defeating  the  title  of  a  prior  vendee,  and 
his  eviction  from  the  premises.  Madden 
V.  Caldwell  Land  Co.  21 :  332,  100  Pac.  358, 
16  Idaho,  59. 

44.  A  vendor  of  real  estate,  who,  to  the 
knowledge  of  the  purchaser,  has  never  seen 
the  property,  but  asserts  that  representa- 
tions made  by  his  agent  as  to  its  character 
are  true,  is  liable  to  make  good  to  the  pur- 
chaser, in  an  action  for  fraud,  the  loss  re- 
sulting from  the  falsity.  Aldrich  v.  Scrib- 
ner,  18:  379,  117  N.  W.  581,  154  Mich.  23. 

45.  A  vendor  who  erroneously  points  out 
certain  land  as  belonging  to  the  tract  sold 
may  be  liable  for  deceit  although  the  state- 
ment was  not  knowinglj-^  false,  if,  by  reason 
of  his  position,  he  should  have  known  the 
truth  or  falsity  of  his  assertion.  Vincent 
v.  Corbitt,  21:  85,  47  So.  641,  96  Miss.  46. 

46.  A  vendor  who  conveys  his  valid  fee- 
simple  title  to  real  property  by  warranty 
deed,  with  full  covenants,  works  a  construct- 
ive fraud  against  such  grantee  by  there- 
after conveying  the  same  property  to  an- 
other bona  fide  purchaser  for  value,  if  the 
subsequent  purchaser  places  his  deed  of  rec- 
ord in  advance  of  the  recording  of  the  first 
deed,  thereby  obtaining  the  paramount  ti- 
tle, although  no  actual  fraudulent  intent 
existed  in  the  mind  of  the  grantor  at  the 
time  of  the  execution  of  the  subsequent  con- 
veyance. Madden  v.  Caldwell  Land  Co.  21: 
332,  100  Pac.  358,  16  Idaho,  59. 

47.  An  agent  for  the  sale  of  a  city  lot 
the  boundaries  of  which  can  be  readily  as- 
certained is  liable  in  damages  to  one  who 
purchases  on  the  faith  of  his  representa- 
tions that  the  lot  extends  to  an  alley,  which 
is  pointed  out,  although  he  has  no  knowl- 
edge whether  it  does  or  not.  Davis  v.  Trent, 
49:  1219,  143  N.  W.  1073,  162  Iowa,  269. 

(Annotated) 

48.  A  purchase  of  personal  property, 
with  the  undisclosed  intent  not  to  pay  the 
purchase  price,  is  a  fraud  upon  the  seller, 
for  which  he  may  within  a  reasonable  time 
rescind  the  sale,  and  retake  possession  of 
the  property  sold.  Ditton  v.  Purcell,  36: 
149,  132  N.  W.  347,  21  N.  D.  648. 

49.  One  employed  to  sell  property  at  the 
best  price  obtainable  is  not  guilty  of  fraud 
in  stating  that  a  named  price  is  the  lowest 
which  the  owner  will  take  for  the  property, 
if  he  does  not  know  at  the  time  that  a 
lower  price  would  be  acceptable,  although 
after  the  sale  he  settles  with  the  owner  at 
a  lower  figure.  Bradlev  v.  Oviatt,  42:  828, 
84  Atl.  321,  86  Conn.  63. 

50.  A  report  by  the  president  of  a  cor- 
poration which  is  desirous  of  selling  stock, 
to  a  mercantile  agency,  which  falsely  states 
the  amount  of  stock  subscribed  and  the 
amount  of  capital  paid  in,  and  makes  an 
Digest  1-52  L.R.A.(N.S.) 


unwarranted  forecast  as  to  the  payment 
of  the  remainder,  must  be  treated  as  hav- 
ing been  designed  fraudulently  to  influence 
the  purchase  of  stock.  Davis  v.  Louisville 
Trust  Co,  30:  loii,  181  Fed.  10,  104  C.  C. 
A.  24. 

51.  A  creditor  who,  to  induce  his  debtor 
to  secure  the  indebtedness  by  a  mortgage 
on  a  stock  of  goods,  promises  that  he  will 
not  permit  a  sale  of  the  property  under 
foreclosure  for  less  than  a  certain  sum,  is 
guilty  of  actionable  fraud  where  he  makes 
the  promise  with  the  secret  intention  of 
not  performing  it,  although  it  does  not  re- 
late to  existing  facts.  Cerny  v.  Paxton  & 
G.  Co.  10:  640,  110  N.  W.  882,  78  Neb.  134. 

{Annotated) 
Knowledge  and  r«lis.uce  al  f «rty  de- 
frauded. 
Presumption  and  burden  of  pr.'wf  as  to  re- 
liance,  see   EviDEiNCF.,   266,   267. 
See  also  supra,  42. 

52.  A  person  is  justified  in  relying  on 
a  representation  made  to  i>im  \n  all  cases 
where  the  representation  is  a  positive  state- 
ment of  fact,  and  W-here  an  investigation 
would  be  required  to  discover  the  truth. 
Martin  v.  Hutton,  56:  5o3,  132  N.  VV.  727, 
90  Neb.  34. 

53.  A  false  and  fraudulent  representa- 
tion by  one  who  assumes  to  have  personal 
knowledge,  to  a  purchaser  of  real  estate, 
that  there  is  no  encumbrance  thereon,  upon 
which  representation  the  purchaser  relies 
and  acts  to  his  injury,  will  sustain  an  ac- 
tion for  the  tort,  although  the  purchaser 
might  have  discovered  the  fraud  by  search- 
ing the  public  records.  Gannon  v.  Hausa- 
man,  52:  519,  140  Pac.  407,  42  Okla.  41. 

54.  When  a  false  representation  is  of  a 
matter  presumably  within  the  knowledge  of 
the  person  making  it,  not  made  in  the  v/ay 
of  commendation  or  as  an  opinion  merely, 
but  as  a  positive  assertion  of  an  existing 
fact,  to  induce  the  other  party  to  enter  into 
the  contract,  such  party,  having  no  knowl- 
edge to  the  contrary,  may,  if  hs  set  in  good 
faith,  accept  the  representation  as  true,  and 
is  not  bound  to  make  inquiries  or  examina- 
tion for  himself.  Westerman  v.  Corder, 
39:. 500,  119  Pac.  868,  36  Kan.  239. 

55.  That  books  of  a  business  are  placed 
at  the  disposal  of  an  intending  purchaser 
does  not  pre>"'ent  his  ielying  upon  state- 
ments of  the  "seller  as  to  the  amount  of 
business  done.  Smith  v.  Werkheiser,  15: 
1092,  115  N.  W.  964,  152  Mich.  177. 

56.  Misrepresentation  as  to  the  amount 
an  order  for  a  specified  number  of  steel 
bars  at  a  specified  price  per  pound  will 
come  to  is  not  a  ground  for  avoiding  the 
sale,  where  there  is  no  trust  relation  between 
the  parties,  and  the  buyer  is  experienced  in 
the  business  and  can  easily  ascertain  for 
himself  what  the  steel  will  weigh  and  there- 
fore what  it  will  cost.  DalhofT  Constr.  Co. 
V.  Block,  17:  419,  157  Fed.  227,  85  C.  C.  A. 
25.  (Annotated) 

57.  A  charge  of  fraud  in  exchanging  cor- 
porate stock  for  real  estate  is  not  sustained 
by  evidence  tliat  the  owner  of  the  real  es- 


FRAUD  AND  DECEIT,  V.— VII. 


1325 


tate  was  told  and  believed  that  the  stock 
was  worth  par,  when,  from  the  value  of  tlie 
real  estate,  he  must  have  known  that  the 
stock  was  below  its  face  value,  or  that  he 
was  getting  four  or  live  times  as  mucli  for 
his  property  as  it  was  worth.  Younger  v. 
Hoge,  i8:  94,  111  S.  W.  20,  211  Mo.  444. 

58.  One  who  gives  an  order  for  5,000 
trees  in  reliance  on  the  seller's  estimate  of 
the  number  needed  for  a  certain  tract  of 
land,  with  his  assurance  that  he  had  had 
experience  in  making  such  estimates  and 
after  measuring,  or  professing  to  measure, 
the  ground,  when  the  purchaser  stated 
his  own  ignorance  of  the  number  needed 
and  was  also  unable,  by  reason  of  illness, 
to  investigate  the  matter  at  that  time,  is 
not  precluded,  on  the  ground  of  his  own 
negligence,  from  claiming  that  he  was  de- 
ceived by  the  seller's  misrepresentations. 
Mt.  Hope  Nurseries  v.  Jackson,  45:  243, 
128  Pac.  250,  36  Okla.  273. 

59.  One  who  induces  a  sale  of  real  prop- 
erty by  fraudulent  representations  as  to 
its  value  cannot  avoid  liability  to  reconvey, 
on  the  theory  that  the  vendor  has  no  right 
to  rely  on  his  representations.  Crompton  v. 
Beedle,    30:  748,    75    Atl.    331,    83    Vt.    287. 

60.  The  purchaser  of  real  estate  includ- 
ing an  orchard  of  such  irregular  shape  that 
it  is  difficult  to  ascertain  its  area  without 
a  survey,  Avho  is  entirely  unfamiliar  with 
the  fruit  business,  has  a  right  to  rely  on 
the  vendor's  statements  as  to  area,  and  may 
rescind  the  contract  in  case  a  represented 
area  of  70  acres  of  orchard  proves  to  be  less 
than  49.  Best  v.  Offield,  30:  55,  110  Pac. 
17,   59    Wash.   466.  (Annotated) 

V.  To  obtain  credit. 

(See  also   same   heading   in  Digest   L.R.A. 
1-10.) 

Remedies  in  case  of,  see  infra,  75. 

61.  One  receiving  a  representation  of  an- 
other's financial  standing  as  a  basis  of 
credit,  under  an  agreement  that  it  shall  be 
considered  as  renewed  on  the  occasion  of 
each  purchase  until  notice  from  the  buyer 
to  the  contrary,  may  rely  upon  it  until  he 
has  notice  from  some  source,  which  would 
put  him  on  his  guard  against  relying  longer 
upon  it.  Atlas  Shoe  Co.  v.  Bechard,  10: 
245,  66  Atl.  390,  102  Me.  197.  (Annotated) 
Statements  by  commercial  agency. 

62.  Reports  made  by  a  corporation  to  the 
secretary  of  state,  which,  through  adoption 
by  a  mercantile  agency,  become  the  basis 
of  credit  to  the  corporation,  are  presumed 
to  have  been  made  for  the  purpose  of  se- 
curing credit,  and,  if  false,  constitute  a 
fraud  which  will  entitle  the  one  extending 
the  credit  to  rescind  the  transaction.  Dime 
Sav.  Bank  v.  Fletcher,  35:  858,  122  N.  W. 
540,  158  Mich.  162. 

63.  One  securing  information  as  to  the 
standing  of  a  corporation  desii-ous  of  dis- 
posing of  some  of  its  treasury  stock, 
through  a  subscriber  to  a  mercantile  agency 
to  which  such  corporation  had  furnished 
Digest   1-52  I<.R.A.(N.S.) 


such  information,  may,  although  he  himself 
I  has  no  contractual  relations  with  the 
agency,  rely  thereon  in  purchasing  stock 
from  the  corporation,  and  in  case  the  in- 
formation was  erroneous,  may  rescind  the 
contract.  Davis  v.  Louisville  Trust  Co. 
30:  loii,  181  Fed.  10,  104  C.  C.  A.  24. 

VI.  In  respect  to  negotiable  paper. 

(See  also   same  heading  in  Digest   L.R.A. 
1-70.J 

EfTect  of  original  fraud  on  bank's  right  to 

dishonor  check,  see  Banks,  101. 
In  securing  indorsement  of  note,  see  Bills 

AND  Notes,  80. 
As  defense  to  note,  see  Bills  and  Notes, 

135,  146-150,  181,  182,  201,  202,  206- 

210. 
Of  agent  in  reissuing  note  after  maturity,      » 

see  Bills  and  Notes,  200,  201. 

64.  A  postdated  check  is  within  the  op- 
eration of  a  statute  providing  punishment 
for  anyone  who  wilfully,  with  intent  to  de- 
fraud, draws  a  check  or  draft  on  a  bank  for 
payment  of  money,  knowing  that  be  has  no 
funds  or  credit  with  which  to  meet  it  on 
presentation.  People  v.  Bercovitz,  43:  667, 
126  Pac.  479,  163  Cal.  636. 

65.  The  mere  fact  that  one,  is  securing 
the  exchange  by  a  bank  of  the  note  of  a 
third  person  for  his  own,  is  in  such  desper- 
ate circumstances  that  he  can  have  no  rea- 
sonable anticipation  or  hope  of  ever  being 
able  to  pay  his  note,  is  not  sufficient  to 
vitiate  the  transaction  and  entitle  the  bank 
to  a  return  of  the  note,  if  he  has  not 
formed  an  intention  not  to  pay.  German 
Nat.  Bank  v.  Princeton  State  Bank,  6:  556, 
107  N.  W.  454,  128  Wis.  60.        (Annotated) 

66.  The  giving  of  a  false  and  fraudulent 
check  in  payment  of  the  purchase  price  of 
personal  property,  with  the  intent  that, 
after  obtaining  possession  of  the  property 
by  such  means,  the  notes  of  the  seller, 
barred  from  collection  by  bankruptcy,  would 
be  offset  against  the  purchase  price  with- 
out the  consent  of  the  seller,  or  a  discount 
from  the  purchase  price  forced  in  settle- 
ment, is  a  fraud  on  the  seller,  for  which 
he  may  rescind  the  sale  and  recover  his 
property.  Ditton  v,  Purcell,  36:  149,  132 
N.  W.  347,  21  N.  D.  648. 

VII.  Misinformation    by    third    person. 

(See  also   same   heading   in   Digest -L.R.A. 
1-10.) 

As  to  fraud  of  agent,  see  Pbincipal  and 
Agent,  II.  c. 

67.  A  mere  friend  of  the  family,  acting 
without  compensation,  who  advises  as  to 
the  investment  of  funds,  does  not  sustain 
such  confidential  relations  to  the  lender 
that  he  can  be  held  personally  liable  in 
case  the  loan  is  lost  because  of  his  misrep- 
resentations as  to  the  credit  of  the  borrow- 
er. Kniirht  v.  Rawlings,  13:  212,  104  S.  W. 
38,  205  Mo.  412. 


1326 


FRAUD  AND  DECEIT,  VIII. 


68.  One  who,  witli  knowledge  of  the 
fraud,  introduces  to  a  money  broker  without 
knowledge  of  or  means  of  knowing  the  facts, 
a  person  impersonating  the  owner  of  real 
estate,  stating  that  he  desires  to  borrow 
money  on  the  property,  and  thereby  enables 
him  to  secure  a  loan  which  cannot  be  re- 
covered because  the  borrower  is  an  impostor 
and  insolvent,  is  liable  to  make  good  the 
loss  resulting  to  the  broker  from  the  trans- 
action. Raser  v.  Moomaw,  51:  707,  139  Pac. 
622,  78  Wash.  653.  (Annotated) 

VIII.  Remedies. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Remedy  in  case  of  fraudulent  attempt  to 
dismiss  action  to  deprive  attorney  of 
fees,  see  Action  ob  Suit,  4. 

Prematurity  of  action  for,  see  Action  ob 
Suit,  16. 

Condition  precedent  to  action  ba.sed  on,  see 
Action  ob  Suit,  27. 

Arrest  for,  seef  Arrest,  15. 

Recovery  back  of  money  obtained  by,  see 
Assumpsit,  43. 

As  ground  for  attachment,  see  Attach- 
ment, I.  d. 

Disbarment  of  attorney  for,  see  Attorneys, 
12,  23,  27,  28. 

Recovery  from  purchaser's  trustee  in  bank- 
ruptcy of  proceeds  of  goods  bought 
without  intent  to  pay  therefor,  see 
Bankruptcy,  103. 

Annulment  of  marriage  for  fraud  in  procur- 
ing, see  Conflict  of  Laws,  81,  82; 
Marriage,  32-36. 

Statute  creating  presumption  of,  see  Con- 
stitutional Law,  140,  141. 

Remedies  between  parties  to  illegal  contract, 
see  Contracts,  III.  g. 

Rescission  of  contract  for,  see  Contracts, 
742-746;  Pleading,  581;  Sale,  112, 
121,  206-218,  229;  Vendor  and  Pur- 
chaser, 18,  68-72. 

Rights  of  seller  as  against  sub-vendee  in  case 
of  fraud  of  purchaser,  see  Sale,  229, 
234,  236-238. 

Punitive  damages  for,  see  Damages,  50. 

Measure  of  damages  for,  see  Damages,  III. 
f. 

Effect  of  electing  remedy,  see  Election  of 
Remedies,  42-45. 

Power  of  equity  in  case  of,  see  Equity,  I. 
d. 

Injunction  against  wholesaler  who  places 
means  of  fraud  in  hands  of  retailers, 
see  Injunction,  98. 

Collateral  attack  on  judgment  for,  see  Judg- 
ment, 123,  142,  143. 

As  ground  for  relief  against  judgment,  see 
Judgment,  329,  330,  341,  342,  353-379, 
390,  391,  394,  395,  398;  Pleading,  171, 
434,  4C5,  437. 

Cancelation  of  insurance  policy  for,  see 
Insurance,  151-153,  434-444. 

Limitation  of  time  for  action  based  on,  see 
Limitation  of  Actions,  76-79,  241. 

Digest  1-52  L.R.A.(N.S.) 


Effect  of  Jiew  promise  to  remove  bar  of  limi- 
tations against  action  based  upon,  see 
Limitation  of  Actions,  345. 

Who  may  maintain  action  for,  see  Parties, 
1. 

Joinder  of  parties  plaintiff  in  action  for,  see 
Parties,  145. 

Liability  of  partnership  for  fraud  of  one 
member,  see  Partnership,  31. 

Necessity  of  pleading,  see  Pleading,  480, 
481. 

Cancelation  for,  of  note  held  as  collateral, 
see  Pledge  and  Collateral  Security, 
17. 

Cancelation  of  patent  for  public  land  because 
of,  see  PuiiLic  Lands,  15. 

Reformation  of  deed  for,  see  Reformation 
OF  Instruments,  15,  16. 

Replevin  by  seller  for,  see  Replevin,  3,  11. 

69.  To  sstop  one  from  whom  property 
has  been  secured  by  fraud  from  claiming  it 
after  it  has  reached  the  hands  of  a  third 
person,  the  latter  must  show  that  he  is  an 
innocent  purchaser  for  value.  National 
Bank  of  Commerce  v.  Chatfield,  W.  &  Co. 
10:  801,  101  S.  W.  765,  118  Tenn.  481. 

70.  The  rule  that  a  person  defrauded  in- 
to purchasing  property  must,  to  secure  a 
rescission  of  the  contract,  act  with  diligence 
and  restore  what  he  received  under  the 
contract,  has  no  application  to  a  proceeding 
for  damages  based  on  a  confirmation  of  the 
contract.  Smith  v.  Werkheiser,  15:  1092, 
115  N.  W.  964,  152  Mich.  177. 

71.  That  one  defrauded  into  purchasing 
stock  of  a  corporation  has  parted  with  it 
does  not  affect  his  right  to  hold  the  one 
guilty  of  the  fraud  liable  for  the  damages 
caused  thereby,  or  to  sue  upon  his  promise, 
made  to  avoid  an  action  for  the  fraud,  to 
see  that  the  purchaser  got  his  money  back. 
McKay  v.  McCarthy,  34:  911,  123  N.  W. 
755,  146  Iowa,  546. 

72.  That  one  defrauded  into  purchasing 
corporate  stock  was  offered  more  than  he 
paid  for  it  is  not  a  defense  to  an  action  on 
a  promise  by  the  one  effecting  the  sale  that 
he  would  see  that  the  purchaser  got  his 
money  back,  unless  the  offers  were  made 
after  the  promise  was  made.  McKay  v. 
McCarthy,  34:  911,  123  N.  W.  755,  146 
Iowa,  546. 

73.  One  who  has  been  induced  by  fraud 
and  deceit  to  enter  into  an  executory  con- 
tract to  sell  stock  cannot,  if  he  performs 
his  contract  after  discovering  the  fraud, 
maintain  an  action  for  damages  therefor. 
McDonough  v.  Williams,  8:  452,  92  S.  W. 
783,  77  Ark.  261.  ( Annotated ) 

74.  A  person  who  has  been  induced 
through  the  fraud  and  false  statements  of 
another,  to  purchase  property  as  clear,  when 
in  fact  it  is  encumbered  by  a  valid  enforce- 
able lien,  may  recover  of  such  person  in  an 
action  for  damages  because  of  the  fraud 
and  deceit,  the  amount  of  the  encumbrance, 
except  as  it  may  exceed  the  value  of  the 
property,  without  having  suffered  a  fore- 
closure or  ouster,  or  having  paid  it  off. 
Gannon  v.  Hausaman,  52:  519,  140  Pac.  407, 
42  Okla.  41. 


FRAUDULENT  CONVEYANCES,  I. 


1327 


75.  That  the  note  of  a  solvent  maker  is 
not  yet  due,  and  has  not  been  paid,  does  not 
prevent  his  maintaining  an  action  to  re- 
cover damages  for  fraud  in  securing  its  ex- 
ecution, if  it  has  passed  into  the  hands  of 
a  bona  fide  holder  for  value;  nor  is  it  neces- 
sary that  tlie  maiier  return  the  note  to  the 
payee  who  defrauded  him.  Hoffman  v.  Toft, 
52:  944,  142  Pac.  365,  70  Or.  488. 

(Annotated) 


FRAUDULENT  CONVEYANCES. 

I.  In  general,   1—22. 
II,  Consideration,   23—25. 
III.  Preferences;  security,  26—28. 
IV.  Notice;    rights   and   liabilities    of 
purchaser,  29—4:0. 
V.  Reservation    of   interest;    change 
of  possession,   4:1—4:6. 
VI.  Transactions    between    relatives, 
47. 
VII.  Subsequent  creditors, 
VIII.  Remedies,  4:8-56. 

Attorney's  duty  to  comply  with  contract  to 
reconvey  to  client  property  transferred 
in  fraud  of  creditors,  see  Attorney,  33. 

Kight  of  trustee  in  bankruptcy  to  property 
conveyed  in  fraud  of  creditors,  see 
Bankruptcy,  102. 

Right  of  fraudulent  grantee  to  plead  grant- 
or's discharge  in  bankruptcy  as  defense 
to  creditors'  suit,  see  Bankruptcy,  146. 

Validity  of  chattel  mortgage,  see  Chattel 
Mortgage,  II. 

Of  assets  of  insolvent  corporation  to  new 
corporation  without  consideration,  see 
Corporations,  26. 

Applicability  of  statutory  provision  for  res- 
toration of  property  in  case  of  divorce 
to  property  transferred  to  defraud  cred- 
itors, see  Divorce  and  Separation,  141. 

Estoppel  of  real  owner  to  assert  title  as 
against  grantee  of  apparent  owner,  see 
Estoppel,  193. 

Intent  to  defraud  creditors  as  taking  place 
of  bad  faith,  see  Evidence,  231. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  270-273,  360. 

Admissibility  of  grantor's  statements  as  to 
reason  for  making  deed,  see  Evidence, 
1455. 

Evidence  as  to,  see  Evidence,  1658,  1659. 

Sufficiency  of  evidence  of  fraud,  see  Evi- 
dence, 2089-2094,  2232,  2233. 

In  fraud  of  marital  rights,  see  Husband 
AND  Wife,  II.  j. 

Right  of  partnership  creditors  to  attack,  see 
Partnership,  40. 

Sufficiency  of  allegations  as  to,  see  Plead- 
ing, 391,  392. 

Direction  of  verdict  in  case  of,  see  Trial, 
747. 

Bona  fide  purchasers  of  land  conveyed  in 
fraud  of  creditors,  see  Vendor  and 
PURCHASFJl,  91,  92. 

Cross-examination  of  alleged  fraudulent 
grantee,  see  Witnesses,  87. 

Digest  1-52  L.R.A.(N.S.) 


I.  In  general. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

1.  The  statute  of  13  Eliz.,  against  con- 
veyances in  fraud  of  creditors,  is  part  of  the 
common  law  of  Alabama.  Hall  v.  Alabama 
Terminal  &  Improv.  Co.  2:  130,  39  So.  285, 
143  Ala.  464. 

2.  Making  choses  in  action  leviable  by 
process  in  garnishment  brings  them  within 
the  operation  of  the  statute  of  13  Eliz.. 
avoiding  conveyances  in  fraud  of  creditors. 
Hall  v.  Alabama  Terminal  &  Improv.  Co. 
2:  130,  39  So.  285,  143  Ala.  464. 

3.  Choses  in  action  are  personal  prop- 
erty within  the  meaning  of  a  statute  mak- 
ing void  conveyances  of  personal  property 
to  defraud  creditors.  Hall  v.  Alabama  Ter- 
minal &  Improv.  Co.  2:  130,  39  So.  285,  143 
Ala.  464. 

4.  Fraud  of  a  debtor  in  dispossessing  his 
creditor  of  a  chose  in  action  held  by  the 
latter  as  collateral  security  is  not  a  fraud- 
ulent transfer  within  the  meaning  of  a 
statute  giving  equity  jurisdiction  to  set 
aside  such  transfers.  Hall  v.  Alabama  Ter- 
minal &  Improv.  Co.  2:  130,  39  So.  285,  143 
Ala.  464. 

5.  Surrender  of  notes  given  by  subscrib- 
ers for  corporate  stock  is  a  fraudulent 
transfer  of  them  as  against  existing  credit- 
ors, and  they  may  proceed  in  equity  to  com- 
pel pa_yment  of  them  in  satisfaction  of 
the  creditors'  claims.  Hall  v.  Alabama  Ter- 
minal &  Improv.  Co.  2:  130,  39  So.  285,  143 
Ala.  464. 

6.  The  transfer  by  a  merchant  of  his 
stock  and  fixtures  to  another,  who  is  to 
close  up  the  business,  and  pay  the  invoice 
price  to  such  creditors  of  the  merchant  as 
he  may  choose,  is  not  a  sale,  but  is  within 
the  provisions  of  a  statute  avoiding  every 
transfer  made  with  intent  to  dela^'  or  de- 
fraud creditors.  Hall  v.  Feeney,  21:  513, 
118  N.  W.  1038,  22  S.  D.  541.    (Annotated) 

7.  The  fact  that  members  of  an  insol- 
vent partnership  contribute  the  insurance 
money  received  for  a  destruction  of  its 
assets  by  fire,  to  the  organization  of  a  cor- 
poration, to  continue  its  business,  taking 
stock  in  such  corporation  in  return,  does 
not  necessarily  imply  a  fraudulent  intent 
on  their  part  to  hinder  and  delay  the  credit- 
ors of  the  partnership.  Byrne  Hammer  Dry 
Goods  Co.  V.  Willis-Dunn  Co.  29:  589,  121 
N.  W.  620,  23  S.  D.  221. 

8.  Keliance  upon  ownership  of  a  cer- 
tain parcel  of  land,  sufficient  to  overturn  a 
deed  by  the  debtor  to  a  third  person,  is  not 
shown  by  the  fact  that  the  creditor  had 
before  him  commercial  reports  showing  that 
the  debtor  was  "said"  to  own,  or  "credited" 
with  owning,  the  land,  or  that  he  has  good 
farm  or  town  property  of  a  certain  value, 
without  any  particular  reference  to  the 
land  in  question.  Blake  v.  Meadows,  30:  1, 
123  S.  W.  868,  225  Mo.  1. 

9.  The  question  of  fraud  in  the  execu- 
tion of  a  deed  can  be  raised  by  a  stranger 
only  when  be  is  in  a  position  to  claim  title 


1328 


FRAUDULENT  CONVEYANCES,  I. 


as   against  the  grantor.     Herron   v.   Allen, 
47:  1048,  143  N.  W.  283,  32  S.  D.  301. 

10.  It  is  not  fraud  on  creditors  to  convey 
a  homestead  to  avoid  a  debt.  Freeman 
V.  Funk,  46:  487,  117  Pac.  1024,  85  Kan.  473. 
Validity  as  between  parties. 

11.  Neither  law  nor  equity  will  aid 
a  debtor,  who  has  confederated  with  and 
conveyed  land  to  another  to  defraud  credit- 
ors, by  canceling  the  deed  or  avoiding  its 
effect.  Sewell  v.  Norris,  13:  1118,  58  S.  E. 
637,  128  Ga.  824. 

12.  A  voluntary  conveyance  of  real  estate 
to  place  it  beyond  the  reach  of  a  judgment 
in  an  anticipated  action  will  not  be  canceled 
as  against  the  heirs  of  the  grantee,  although 
the  threatened  action  had  no  foundation  in 
law,  and  the  grantee,  upon  being  notified  of 
the  conveyance,  promised  to  reconvey  on  de- 
mand. Carson  v.  Beliles,  i:  1007,  89  S.  W. 
208,  121  Ky.  294.  (Annotated) 
Sales  in  bulk. 

Attachment  of  goods  sold  in  bulk,  see  At- 
tachment, 43. 
Chattel  mortgage  as   sale  within  meaning 

of  a  statute  regulating  sales  in  bulk, 

see  Chattel  Mortgage,  4. 
Constitutionality  of  statute  regulating  sale 

of  goods  in  bulk,  see  Constitutional 

Law,  249,  250,  747,  748, 
Validity  of  sale  in  bulk  of  stock  of  drugs, 

see  Contracts,  412. 
See  also  infra,  30,  38,  39;  Assignment  for 

Creditors,  1. 

13.  The  bulk  sales  law  does  not  apply 
to  sales  of  property  which  is  exempt  by 
law  from  execution.  McCormick  v.  Kist- 
ler,  45:  497,  141  N.  W.  593,  175  Mich.  423. 

{ Annotated ) 

14.  The  word  "assignment"  as  used  in 
the  Oklahoma  "bulk  sales  law,"  §  7910, 
Comp.  Laws  1909,  defining  the  transfers 
included  in  the  act  as  "sales,  exchanges,  and 
assignments,"-  means  a  transfer  or  setting 
over  of  property  or  some  right  or  interest 
therein  from  one  person  to  another;  the 
term  denoting  not  only  the  act  of  transfer, 
but  also  the  instrument  effecting  it. 
Humphrev  v.  Coquillard  Wagon  Works,  49: 
600,  132  Pac.  899,  37  Okla.  714. 

15.  A  creditor  who  has  had  no  notice  of 
a  pretended  assignment  of  his  debtor,  and 
has  not  waived  the  irregularities  thereof, 
may  follow  the  property  which  has  been 
transferred  in  violation  of  the  "bulk  sales 
law."  Humphrey  v.  Coquillard  Wagon 
Works,  49:  600,  132  Pac.  899,  37  Okla.  714. 

16.  A  sale  to  one  person  of  substantially 
all  the  lumber  which  one  who  operates  a 
sawmill  at  which  trees  are  manufactured 
into  lumber,  has  on  hand  is  not  within  the 
provision  of  a  statute  requiring  a  purchaser 
of  goods,  wares,  and  merchandise  in  bulk  to 
give  notice  of  the  sale  to  the  vendor's  cred- 
itors. Cooney,  E.  &  Co.  v.  Sweat,  25:  758, 
66  S.  E.  257,  133  Ga.  511.  (Annotated) 

17.  The  sale  by  a  merchant  of  a  drug 
store  which  he  conducts  in  a  separate  build- 
ing and  under  a  separate  name  from  that  in 
and  under  which  his  general  business  is  con- 
ducted must  comply  with  the  statutes  pro- 
viding for  the  sale  by  a  merchant  of  the 
Digest  1-52  £..B.A.(N.S.) 


whole  or  a  large  part  of  his  stock  in  trade, 
since  it  is  to  be  regarded  as  the  sale  of  an 
independent  business.  Young  v.  Leraieux, 
20:  160,  65  Atl.  436,  79  Conn.  434. 

18.  One  who  purchases  a  retail  stock  of 
goods  from  a  merchant  who  has  not  complied 
with  the  statutory  requirement  as  to  notice 
of  sale  is  not  entitled  to  retain  against  cred- 
itors of  the  merchant  articles  placed  in  the 
stock  by  him  after  the  purchase,  if  they 
merely  replace  the  goods  sold,  and  are  pur- 
chased with  the  avails  of  such  sales.  Young 
V.  Lemieux,  20:  160,  65  Atl.  436,  79  Conn. 
434. 

19.  The  horses,  wagons,  harness,  screens, 
shovels,  baskets,  chutes,  desk,  and  safe  used 
in  transacting  a  coal  business  are  not  fix- 
tures, within  the  meaning  of  a  bulk  sales 
law  forbidding  the  sale  of  a  stock  of  mer- 
chandise "and  the  fixtures  pertaining  to  the 
conduct  of  said  business,"  otherwise  than 
in  the  ordinary  course  of  trade,  without 
giving  notice  to  creditors.  Bowen  v.  Quii;- 
ley,  34:  218,  130  N.  W.  690,  165  Mich.  337. 

( Annotated ) 

20.  A  sale  of  his  tools  and  stock  in 
trade  by  one  who  buys  stone  in  the  rough 
and  cuts  and  dresses  it  to  fill  orders  which 
he  may  receive  is  not  within  a  statute 
making  void  a  sale  of  his  stock,  without 
certain  notices  to  creditors  by  one  who 
makes  it  his  business  to  buy  commodities 
and  sell  the  same  in  small  quantities  for 
the  purpose  of  making  a  profit.  Connecti- 
cut Steam  Brown  Stone  Co.  v.  Lewis,  45: 
495,    85    Atl.    534,    86    Conn.    386. 

(Annotated) 

21.  If  one  desiring  to  purchase  a  stock 
of  merchandise  in  bulk  demands  and  re- 
ceives from  the  vendor  a  written  state- 
ment under  oath,  purporting  to  contain 
the  names  and  addresses  of  all  the  cred- 
itors of  the  vendor,  together  with  the 
amount  of  the  vendor's  indebtedness  to 
each  of  them,  and  within  the  time  required 
by  the  statute  due  notice  of  the  proposed 
sale,  the  price  to  be  paid,  and  the  terms 
and  conditions  thereof  are  given  by  the 
purchaser  to  each  of  the  creditors  whose 
names  appear  on  the  list  so  furnished,  and 
thereafter  the  purchaser  in  good  faith  pays 
over  to  the  vendor  the  purchase  price 
agreed  on,  without  notice  or  reason  to  sus- 
pect that  the  vendor  has  omitted  from  the 
sworn  list  the  name  of  any  of  his  creditors, 
the  sale  is  not  void,  either  in  whole  or  in 
part,  by  reason  of  the  fact  that  the  seller 
omitted  to  name  one  of  his  creditors,  and 
the  purchaser  failed  to  give  that  creditor 
notice  of  the  sale,  though  such  creditor 
did  not  in  fact  have  any  notice  of  the  sale, 
and  though  the  seller  is  insolvent.  Inter- 
national Silver  Co.  v.  Hull,  45:  492,  78  S. 
E.  609,   140  Ga.   10.  (Annotated) 

22.  A  chattel  mortgage  covering  a  stock 
of  merchandise,  where  the  mortgagor  re- 
mains in  possession,  and  has  the  usual  right 
of  redemption,  creates  a  lien  only,  and  does 
not  pass  title,  and  is  not  a  sale,  exchange, 
or  assignment  within  the  meaning  of  the 
Oklahoma  bulk  sales  law,  and  is  therefore 


FRAUDULENT   CONVEYANCES,   11.— IV. 


1329 


not  within  the  inhibition  of  said  statute 
against  a  transfer  without  notifying  credi- 
tors. Noble  V.  Ft.  Eniith  Wholesale  Grocery 
Co.  46:  455,  127  Pac.  14,  34  Okla.  G62. 

II,  Consideration. 


creditors  of  the  insolvent,  where  the  rela- 
tives knew  of  the  existence  of  other  debts 
due  by  the  failing  debtor,  who  was  retained 
as  president  and  manager  of  the  corporation 
at  a  specified  salary.  Iloppe  Hardware  Co. 
V.  Bain,  17:  310,  95  Pac.  7(J5,  21  Okla.  177. 

(See  also   same   heading   in   Digest   L.R.A.    IV.  Notice;    rights    and     liabilities    of 
1-10.)  purcliaser. 


J 
See  also  infra,  27. 

23.  A  sale  for  $13,000  on  property  rea- 
sonably worth  $16,200  does  not  show  such 
a  discrepancy  between  price  and  value  as 
to  bring  it  within  the  rule  which  charges 
the  purchaser,  in  some  instances,  as  trustee 
for  creditors,  as  to  the  difference  between 
price  and  value, — especially  where  the  sale 
jnust  be  made  in  haste  and  upon  a  restricted 
market.  Rosenheimer  v.  Krenn,  5:  395,  106 
N.  W.  20,  126  Wis.  617.  (Annotated) 

24.  Sale  of  property  in  a  bona  fide  orig- 
inal transaction  of  bargain  and  sale  at  a 
price  known  by  both  vendor  and  vendee  to 
be  below  its  true  value  would  seem  not  to 
be  sufficient  to  charge  the  purchaser  as  trus- 
tee for  the  difference  between  price  and 
value,  in  favor  of  creditors  of  the  vendor. 
Rosenheimer  v.  Krenn,  5:  395,  106  N.  W.  20, 
126  Wis.  617.  (Annotated) 

25.  The  issuance,  by  a  corporation  or- 
ganized to  continue  the  business  of  an  in- 
solvent partnership,  of  its  stock  to  tlie 
members  of  the  partnership,  who  contribut- 
ed cash  received  from  insurance  on  the 
partnership  property,  is  a  sufficient  consid- 
eration for  the  money  so  contributed,  so 
that  it  is  not  liable  to  account  for  such 
money  to  the  creditors  of  the  partnership. 
Byrne  Hammer  Dry  Goods  Co.  v.  Willis- 
Dunn  Co.  29:  589,  121  N.  W.  620,  23  S.  D. 
221. 

III.  Preferences;  security. 

(See  also   same  heading  in  Digest  L.R.A. 
1-W.J 

Preferences    by    insolvent    corporation,    see 

CORPOKATIONS,  VI.   f,  2. 

Question  for  jury  as  to,  see  Trial,  269. 
See  also  infra,  47,  50. 

26.  West  Virginia  Code  1906,  chap.  74, 
§  2,  protecting  preferences  given  to  secure 
purchase  money,  does  not  apply  to  fraudu- 
lent conveyances.  Gilbert  v.  Peppers,  36: 
1181,  64  S.  E.  361,  65  W.  Va.  355. 

27.  An  insolvent  debtor  cannot  dispose 
of  his  property  to  a  stranger,  without  con- 
sideration, and  authorize  him  to  select  such 
creditors  as  he  may  deem  proper  as  recipi- 
ents of  the  proceeds  of  the  property  in  pay- 
ment of  their  debts.  Hall  v.  Feeney,  21: 
513,  118  N.  W.  1038,  22  S.  D.  541. 

28.  The  transfer  by  an  insolvent  debtor 
of  all  his  assets  to  a  corporation  the  stock 
of  which  was  issued  to  relatives  to  whom 
he  was  indebted  was  fraudulent  and  void  as 
to  a  creditor  not  assenting  thereto,  although 
the    corporation    undertook    to    pay    ceitain 

Digest  1-52  L.R.A.(N.S.)  84 


(See  also   same  heading   in  Digest  L.R.A. 
1-10.) 

See  also  supra,  18-21. 

29.  Notice  of  the  rights  of  an  unsecured 
creditor  before  full  payment  of  the  pur- 
chase money  on  a  sale  not  intended  by  either 
party  to  hinder  or  delay  creditors  does  not 
destroy  the  bona  fides  of  the  purchaser  as  to 
such  unpaid  portion,  or  charge  him  with 
the  duty  of  applying  it  upon  the  debt. 
Rosenheimer  v.  Krenn,  5:  395,  106  N.  W.  20, 
126  Wis.  617. 

30.  The  horses,  wagons,  and  harness  of  a 
livery-stable  keeper  are  not  within  the  pro- 
vision of  a  statute  requiring  every  person 
who  shall  purchase  "any  stock  of  goods, 
wares,  or  merchandise  in  bulk"  to  take  a 
statement  under  oath  of  the  creditors  of  the 
seller.  Everett  Produce  Co.  v.  Smith, 
2:  331,  82  Pac.  905,  40  Wash.  566. 

(Annotated) 

31.  That  a  purchase  of  chattels  from  a 
vendee  was  made  to  defraud  his  creditors 
will  not  entitle  his  vendor  to  recover  from 
the  subvendee,  if  ■  the  original  vendee  was 
guilty  of  no  fraud  in  procuring  the  sale. 
Pelham  v.  Chattahoecliee  Grocery  Co.  8:  448, 
41  So.  12,  146  Ala.  216. 
Xotice  of  transferrer's  fraud. 
See  also  infra,  45. 

32.  One  holding  goods  under  a  pretended 
sale  from  a  fraudulent  vendee  in  secret  trust 
for  him  stands  in  his  shoes.  Pelham  v.  Chat- 
tahoochee Grocery  Co.  8:  448,  41  So.  12,  146 
Ala.  216. 

33.  A  transfer  of  property  for  the  pur- 
pose of  securing  it  for  the  benefit  of  the 
transferrer  and  his  children,  in  fraud  <  f  his 
creditors,  is  not  validated  by  the  fact  that 
the  transferee  is  ignorant  of  the  fraudu- 
lent intent.  Clowe  v.  Seavey,  47:  284,  102 
N.  E.  521,  208  N.  Y.  496. 

34.  A  mortgage  given  to  secure  an  ac- 
tual loan  of  money,  made  with  tlte  common 
hitent  to  screen  the  property  of  the  insol- 
vent debtor  from  the  pursuit  of  his  creditors, 
may  be  set  aside  at  the  suit  of  creditors  as 
in  fraud  of  their  rights.  Bank  of  Berwick 
V.  George  Vinson  Shingle  &  Mfg.  Co.  26: 
1068,  50  So.  823,  124  La.  1000. 

(Annotated) 
Liability   of. 

35.  The  rule  that  a  vendee  is  not  a  bona 
fide  purchaser  for  value  until  he  has  actual- 
ly paid  the  purchase  price,  or  become  irrev- 
ocably bound  for  its  payment,  cannot  be 
invoked  against  one  who  has  promised  to 
give  a  consideration  for  the  transfer  as- 
sailed, unless  it  appears  that  the  transfer 
will  hinder  or  delay  the  vendor's  creditors. 


1330 


^^RAUDULENT  CONVEYANCES,  V. 


Everitt    v.    Farmers'    &    M.    Bank,    20:996,1 
117  N.  W.  401,  82  Neb.  191. 

36.  If  a  debtor  conveys  his  property  to 
avoid  the  payment  of  his  debts,  and  the 
grantee  conveys  it  to  an  innocent  purchaser 
without  notice,  this  does  not  create  any 
such  relation  of  debtor  and  creditor  between 
the  fraudulent  grantee  and  a  creditor  of 
his  grantor  as  to  authorize  the  creditor  to 
bring  an  action  of  contract  directly  against 
the  fraudulent  grantee  alone,  to  recover 
the  amount  of  the  indebtedness  of  tlie 
grantor,  who  has  become  a  bankrupt. 
Graves  v.  Horton,  26:  545,  65  S.  E.  112,  132 
Ga.  786.  (Annotated) 

37.  An  action  for  the  fraud  of  the  de- 
fendant in  purchasing  property  from  a  per- 
son who  afterwards  became  a  bankrupt, 
withholding  the  title  from  record,  and  thus 
permitting  his  grantor  to  obtain  credit  on 
the  faith  of  it,  and  later  sell  the  property 
to  an  innocent  third  party,  cannot  be  main- 
tained by  one  who  sold  personalty  to  the 
grantor  on  credit,  but  who  had  no  lien 
therefor.  Graves  v.  Horton,  26:  545,  65  S. 
E.  112,  132  Ga.  786. 

38.  One  who  purchases  a  stock  of  goods 
without  complying  with  the  bulk  sales  law, 
and  whose  payment  is  turned  over  to  pre- 
ferred creditors  of  the  seller,  is  liable  to  the 
other  creditors  for  their  pro  rata  share  of 
the  contract  price  of  the  property,  although 
he  is  entitled  to  credit  for  the  pro  rata 
share  which  was  received  by  the  preferred 
creditors.  Fechheimer-Keiffer  Co.  v.  Burton, 
51:343,   164   S.   W.   1179,   128   Tenn.   682. 

(Annotated) 

39.  Creditors  of  one  who  sells  a  stock  of 
merchandise  in  bulk  for  an  adequate  con- 
sideration, without  complying  with  the  pro- 
visions of  the  bulk  sales  law,  cannot  hold 
the  vendee  liable  for  the  value  of  the  prop- 
erty, as  trustee,  although  the  statute  pro- 
vides that  such  sale  shall  be  fraudulent  and 
void  as  against  creditors.  McGreenery  v. 
Murphy,  39:  374,  82  Atl.  720,  76  N.  H.  338. 

( Annotated ) 
40.  Equity  will  require  a  creditor  who 
has  received,  in  settlement  of  his  debt 
against  an  insolvent  debtor,  property  ma- 
terially greater  in  value  than  the  debt  paid 
thereby,  to  account  to  other  creditors  only 
for  the  amount  of  the  property  in  excess 
of  the  consideration  paid  therefor,  where 
the  transaction  was  entered  into  by  him 
without  intending  to  defraud  other  cred- 
itors. Griswold  v.  Szwanek,  21:  222,  118  N. 
W.  1073,  82  Neb.  761.  (Annotated) 

V.  Reservation   of  interest;   change   of 
possession. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Question  for  jury  as  to  fraud,  see  Trial, 
269. 

Cbange  of  possession. 

Effect  of  chattel  mortgagor's  retention  of 
possession,  see  Cuattel  Mortgage,  24- 
30. 

Digest  1-52  KR.A.(N.S.) 


Effect  of  chattel  mortgagee  taking  posses- 
sion, see  Chattel  Mortgage,  31-38. 

Presumption  of  fraud,  see  Evidence,  272. 

Sufliciency  of  evidence  to  show  good  faith  in 
sale,  see  Evidence,  2090. 

Change  of  possession  of  pledge,  see  Pledge 
AND    Collateral    Security,    2-10. 

Necessity  of,  to  passing  of  title,  generally, 
see  Sale,  I.  b. 

41.  Failure  to  make  delivery  does  not 
as  against  creditors  of  the  seller,  a  coten- 
ant,  avoid  the  sale  of  an  undivided  interest 
in  property  which,  at  the  time  of  the  sale 
is  in  the  possession  of  the  other  cotenant, 
under  a  statute  providing  that  every  trans- 
fer of  personalty  by  one  in  possession  or 
control  shall  be  conclusively  presumed  to 
be  fraudulent  if  not  followed  by  actual  and 
continued  change  of  possession.  Love  v. 
Schmidt,  31:  1162,  110  Pac.  665,  20  Okla. 
648.  CAnnotated) 

42.  Formal  delivery  to  the  purcliat^er 
of  an  undivided  interest  in  grain  stacked 
on  premises  rented  by  the  purchaser  from 
the  owner  of  the  remainder  of  the  grain  is 
not  necessary  to  render  the  sale  valid  as 
ajainst  creditors  of  the  vendor,  as  in  such 
case  formal  delivery  would  be  but  a  vain 
act.  Love  v.  Schmidt,  31:  1162,  110  Pac. 
665,  26  Okla.  648. 

43.  A  statute  making  transfers  of  per- 
sonal property  without  immediate  change 
of  possession  void  as  against  creditors  has 
no  application  to  a  transfer  of  corporate 
stock  not  entered  on  the  books  of  the  cor- 
poration, but  the  certificates  of  which  were 
delivered  to  the  transferee.  State  Banking 
&  T.  Co.  V.  Taylor,  29:  523,  127  N.  W.  590, 
25  S.  D.  577. 

44.  The  equitable  principle  that,  where 
one  of  two  innocent  parties  must  suffer, 
the  loss  should  fall  on  him  whose  act  has 
made  the  loss  possible,  does  not  apply  to 
a  sale  of  personal  property  without  change 
of  possession,  so  as  to  estop  the  showing  of 
good  faith  by  the  vendee,  even  after  the 
rights  of  innocent  third  parties  have  inter- 
vened, where  by  statute  the  retention  of  a 
chattel  by  the  vendor  raises  only  a  pre- 
sumption of  fraud,  as  the  statute  is  con- 
trolling. Wilson  V.  Walrath,  24:  1127,  115 
N.  W.  203,  103  Minn.  412. 

45.  A  finding  that  the  vendee  of  an  auto- 
mobile acted  in  good  faith  and  without  in- 
tent to  hinder,  delay,  or  defraud  the  credit- 
ors of  the  vendor  or  subsequent  purchasers 
from  him  is  warranted,  where  the  evidence 
shows  that  the  vendee  paid  full  value  with- 
out knowledge  of  the  vendor's  insolvency, 
that  the  vendee  had  desired  for  some  time  to 
purchase  an  automobile,  and  that  the  vendor 
was  a  dealer  in  automobiles,  although  the 
machine  was  left  in  the  possession  of  the 
vendor  under  an  agreement  that  he  should 
retain  possession  thereof  for  thirty  days  for 
demonstrating  purposes,  in  consideration  of 
its  subsequent  repair  and  storage.  Wilson 
V.  Walrath,  24:  1127,  115  N.  W.  203,  103 
Minn.  412. 

46.  One  purchasing  the  furniture  of  a 
hotel  at  a  place  6  miles  therefrom,  on  Sat- 
urday afternoon,  too  late  conveniently   to 


FRAUDULENT  CONVEYANCES,  VI.— VIII. 


1331 


take  up  the  carpets  that  night,  and  who, 
by  tlie  terms  of  the  sale,  is  not  to  take 
possession  until  the  following  Monday,  ac- 
quires no  rights  as  against  an  attachment  l 
of  the  property  as  that  of  his  vendor,  later 
in  the  afternoon  of  the  sale.  W.  P.  Cham- 
berlain Co.  V.  Tuttle,  25:  604,  71  Atl.  865, 
75  N.  H.  171. 

VI.  Transactions  between  relatives. 

(See  also    same   heading   in  Digest   L.R.A. 
1-70.) 

By    husband    to    wife,    see    Husband    and 
Wife,  148-151. 

47.  A  conveyance  by  an  insolvent  to  his 
parents,  for  the  purpose  of  securing  a  debt 
honestly  due  them,  of  property  the  value 
of  which  is  not  in  excess  of  the  amount  due, 
will  not  be  set  aside  as  fraudulent  in  favor 
of  creditors.  First  Nat.  Bank  v.  Brubaker, 
a:  256,  105  N.  W.  116,  128  Iowa,  587. 

VII.  Subsequent   creditors. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 

VIII.  Remedies. 

(See  also   same   heading  in  Digest  L.R.A. 
1-10.) 

As  ground  of  attachment,  see  Attachment, 

43. 
Right    of    owner    to    recover    possession    of 

property     fraudulently     conveyed,     see 

Contracts,  569. 
By  creditors'  bill,  see  Creditors'  Biuu 
Power  of  court,  in  setting  aside,  to  devest 

title   of   remainderman   and  vest   it   in 

life  tenants  as  general  heirs  of  debtor, 

see  Judgment,  135. 
Limitation   of   time   for   suit   to   set   aside, 

see  Limitation  of  Actions,  171. 

48.  Where  a  transaction  involt^ing  a 
transfer  of  property  is  void  as  to  creditors 
of  the  transferrer,  and  equity  jurisdiction 
is  not  necessary  to  remove  a  cloud  on  title 
or  for  some  other  relief  within  the  peculiar 
tield  of  equity  jurisdiction,  t|he  creditors 
may  proceed  at  law,  treating  such  trans- 
action as  if  it  never  occurred,  it  being  void 
as  to  them,  and  the  bringing  of  an  action 
inconsistent  with  the  validity  of  the 
transfer  being  a  sufficient  election.  Atlanta 
&  W.  Butter  &  Cheese  Asso.  v.  Smith,  32: 
137,  123  N.  W.  106,  141  Wis.  377. 

49.  Judgment  creditors  of  a  debtor  who 
has  made  a  fraudvilent  conveyance  have 
liens  on  his  real  estate  from  the  dates  of 
their  respective  judgments,  and  on  his  per- 
sonal property  from  the  dates  of  the  ac- 
quisitions thereof  by  execution,  attachment, 
or  otherwise,  whether  they  be  acquired  be- 
fore or  after  the  conveyance,  if  they  are 
preserved  by  compliance  with  registration 
and  other  laws  provided  for  the  purpose. 
Gilbert  v.  Peppers,  36:  1181,  64  S.  E.  361, 
65  W.  Va.  355. 

Digest  1-52  i:<.R.A.(N.S.) 


50.  The  general  creditor  who  first  at- 
tacks a  fraudulent  conveyance  obtains  a 
lien  on  the  property  by  the  institution  of 
his  suit;  and  preferences  among  all  of  such 
creditors  are  determined  by  the  dates  of  the 
commencements  of  their  suits,  if  separate 
suits  are  brought,  or  of  the  commencement 
of  the  suit  and  the  filing  of  petitions,  if 
all  assert  their  rights  in  the  same  suit.  Gil- 
bert V.  Peppers,  36:  ii8i,  64  S.  E.  361,  65 
W.  Va.  355. 

To  \(rlioiii  available. 

Who   may  maintain   suit  to  set  aside,   see 

Bankruptcy,  93. 
Right   of   judgment   creditors   to  maintain 

action  to  annul  mortgage  in  fraud  of 

their  rights,  see  Parties,  26. 

51.  Any  one  who,  but  for  a  deed  made  to 
defraud  creditors,  would  have  a  right  to  sub- 
ject the  property  to  his  demand  is  a  "cred- 
itor," entitled  to  sue  in  equity  to  set  it 
aside,  under  W.  Va.  Code  1906,  §§  3099-3108. 
Carr  v.  Davis,  20:  58,  63  S.  E.  326,  64  W.  Va. 
522. 

52.  A  bail  in  a  criminal  recognizance, 
against  whom  an  award  of  execution  upon 
the  recognizance  has  been  made,  and  to 
whom  a  bond  has  been  given  to  indemnify 
him  against  all  loss  or  damage  which  ho 
might  sustain  on  account  of  having  signed 
the  recognizance,  may  file  a  bill  in  equity, 
before  payment  of  the  recognizance  debt, 
to  set  aside  a  deed  made  by  the  obligor 
in  such  indemnity  bond,  as  made  with  in- 
tent to  defraud  him  as  a  creditor.  Carr  v. 
Davis,  20:  58,  63  S.  E.  326,  64  W.  Va.  522. 

53.  The  administrator  of  one  who  dies  in- 
solvent may  maintain  an  action  to  set 
aside  a  conveyance  of  real  estate  which  he 
made  in  fraud  of  creditors.  Chester  Coun- 
ty Trust  Co.  V.  Pugh,  50:  320,  88  Atl.  319, 
241  Pa.   124.  (Annotated) 

54.  A  simple-contract  creditor  cannot, 
prior  to  obtaining  a  judgment  or  lien,  at- 
tack as  fraudulent  his  debtor's  transfer  of 
nonexempt  property  which  may  be  applica- 
ble to  the  payment  of  his  claim;  nor  can 
he  sustain  an  action  to  enjoin  a  threatened 
fraudulent  transfer  of  his  debtor's  property 
until  he  has  obtained  a  specific  lien  upon 
such  property.  O'Day  v.  Ambaum,  15:  484, 
92  Pac.  421,  47  Wash.  684.         (Annotated) 

55.  A  surety  for  the  performance  of  a 
construction  contract,  being  a  simple-con- 
tract creditor,  cannot,  before  obtaining  a 
judgment  or  lien,  maintain  a  suit  to  enjoin, 
as  a  fraud  upon  him,  a  conveyance  of  non- 
exempt  property  by  persons  who  formed  a 
partnership  with  the  principal  for  the  pur- 
pose of  performing  the  contract,  even  if 
there  is  any  contract  relation  between  the 
plaintiff  and  such  persons.  O'Dav  v.  Am- 
baum, 15:  484,  92  Pac.  421,  47  Wa'sh.  684. 

(Annotated) 

56.  A  mortgage  by  an  insolvent  debtor 
to  a  corporation,  given  in  return  for  a  loan 
of  money  but  with  the  common  intent  to 
screen  his  property  from  the  pursuit  of  his 
creditors,  may  be  impeached  by  such  cred- 
itors as  an  ultra  vires  act  on  the  part  of 
the  corporation,  which  had  no  power  to 
loan  money  and  take  mortgages,  and  may  be 


1332 


set  aside  as  in  fraud  of  their  rights.  Bank 
of  Berwick  v.  George  Vinson  Shingle  &  Mfg. 
Co.  26:  1068,  50  So.  823,  124  La.  1000. 


FKAUDULENT  TELEGRAM— FRIGHT. 

FREIGHT. 


FRAUDULENT  TELEGRAM. 

Liability  of  telegraph  company,  see  Tele- 
GBAPHS,  11.  a,  4. 


♦  •» 


FREE  DELIVERY. 

By   express   company,   see    Cabbiebs,    766; 
OOMMEBCE,  32-34. 


^•» 


FREEDOM  .OF  CONTRACT. 

See,Co»si;TUTiONAL  Law,  II.  b,  4,  b. 

» « » 

FREEDOM  OF  SPEECH  AND  PRESS. 

See  CONSTITUTIONAL  Law,  II.  d. 


FREEDOM  OF  WORSHIP. 

See  CJoNSTiTUTiONAL  Law,  II.  d. 


FREEHOLDERS. 


Carriage  of,  see  Cakhikks,  111. 

Right    of    mortgagee    of    ship    to    unpaid 

freight,  see  Chattel  Mortgages,  45. 
Garnishment  of,  see  Garnishment,  20. 
Mechanics'  lien  for  money  advanced  to  pay 

freight   on  materials,   see  Mechanics' 

Liens,  49. 


FREIGHT  ELEVATOR. 

Liability  for  injury  to  passenger  riding  on, 

see  Elevators,   14-16. 
As   dangerous   machine   on    which   children 

may  not  be  employed,  see  Master  and 

Sebvant,  170. 


FREIGHT  MONET. 

Right  of  consignee  to  garnish,  see  Gabnish- 

ment,  4,  6. 


FREIGHT  TRAIN. 

Passenger  on,   see  Cabbiebs,  242,  292-296, 

911-914;  Evidence,  361. 
Ejection  of  trespasser  from,  see  Cabbiebs, 

398. 


FRESHET. 


Requiring  jury   commissioners  to  be   free-    Municipal   liability  for  injury  during,   see 
holders,  see  Officers,  8. 


FREE    PASSENGER. 

See  Cabbiebs,  II.  m,  3. 


FREE  SCHOLARSHIPS. 

Applying  charitable  devise  to  establishing, 
see  Charities,  64. 


FREE  TRANSPORTATION. 

Of  pupils,  see  Schools,  2-5. 

In  general,  see  Passengebs,  II.  m,  3. 


FREEZING. 


Carrier's  liability  for  loss  by,  see  Cabbiebs, 
806,  908,  977. 

Liability  of  insurer  against  leakage  from 
automatic  sprinkler,  for  leakage  caused 
by  freezing,  see  Insubance,  675. 

Digest  1-52  L.R.A.(N.S.) 


Municipal  Corpobations,  445. 


FRIEND   OF   COURT. 

See  Aiqpus  Curiae. 


FRIGHT. 

Of  horses,  see  Animals,  21,  22;  Automo- 
biles, 38-51 ;  Blasting,  3 ;  Bridges,  8 ; 
Evidence,  324,  1145,  1172,  1863, 
1864;  Highways,  174,  199-202,  205, 
277-284,  338,  353;  Interurban  Rail- 
way, 4;  Limitation  of  Actions,  184; 
Municipal  Corporations,.  334,  347, 
359;  Negligence,  19,  20,  194,  213, 
238,  293;  Pleading,  23,  329,  333-« 
338,  400;  Proximate  Cause,  114,  117;>t 
Railroads,  II.  d,  5,  233-235,  240-242; 
Street  Railways,  47,  53,  69,  101; 
Tbial,  413,  417,  425,  439,  806,  1128.      ., 

Of  passenger,  see  Carriers,  217-219,  312.      ,-, 

Right  of  action  for  causign  relapse  of  con- 
valescent woman  by  threatening  and 
abusive  language,  see  Case,  2. 

Damages  for  mental  anguish,  see  Damages, 
III.  o. 


PROGS— FRONTAGE  TAX. 


1333 


Recovery  for  death  from  fright  caused  by 
blasting,  see  Death,  41. 

Liability  for  murder  of  one  causing  death 
by,  see  Homicide,  2. 

Liability  for  manslaughter  of  one  causing 
death  by,  see  Homicide,  36. 

Proximate  cause  of  injury  by,  see  Proxi- 
mate Cause,  X. 

1.  No  liability  exists  for  acts  of  neg- 
ligence causing  mere  fright  or  shock,  unac- 
companied by  contemporaneous  physical  in- 
jury, even  though  subsequent  illness  results, 
where  the  negligent  acts  complained  of  are 
neither  wilful  nor  malicious.  Miller  v.  Bal- 
timore &  0.  S.  W.  R.  Co.  i8:  949,  85  N.  E. 
499,  78  Ohio  St.  309. 

2.  Impairment  of  health,  or  loss  of  bod- 
ily power,  through  fright  which  is  the  nat- 
ural and  direct  result  of  the  negligent  act 
of  another,  is  sufficient  to  sustain  an  action 
against  the  wrongdoer.  Kimberly  v.  How- 
land,  7:  545,  55  S.  E.  778,  145  N.  C.  398. 

3.  Damages  may  be  recovered  for  bodily 
injury  caused  by  fright,  although  there  was 
no  physical  injury  at  the  time  of  the  acci- 
dent, if  the  fright  is  followed  by  a  series  of 
physical  ills  as  its  natural  consequence,  the 
fright  giving  rise  to  nervous  disturbances, 
and  those  in  turn  to  physical  troubles. 
Simone  v.  Rhode  Island  Co.  9:  740,  66  Atl. 
202,  28  R.  I.  186. 

4.  Damages  may  be  recovered  for  actual 
physical  injuries  resulting  from  fright  and 
nervous  shock  caused  by  wrongful  blast- 
ing, although  there  is  no  direct  physical  im- 
pact against  the  body  of  the  person  injured. 
Green  v.  Shoemaker,  23  :  667,  73  Atl.  688, 
111  Md.  69. 

5.  No  recovery  can  be  had  for  frighten- 
ing a  man  ill  in  bed,  by  the  explosion  of 
dynamite  in  front  of  his  house,  so  that  he 
died  within  two  weeks  thereafter,  from  the 
shock  and  attending  exertion  in  aiding  his 
wife,  who  was  also  ill.  Huston  v.  Freemans- 
burg,  3:  49,  61  Atl.  1022,  212  Pa.  548. 

(Annotated) 

6.  One  having  a  right  to  enter  upon  an- 
other's property  to  remove  telegraph  poles 
is  liable  for  injury  to  the  wife  of  the  one 
in  possession  thereof,  frightened  because  of 
the  loud,  profane,  boisterous,  and  lewd  lan- 
guage employed  by  his  servants  upon  the 
premises  and  towards  her  while  in  the  exe- 
cution of  the  work,  and  their  entry  of  the 
dwelling  without  right.  May  v.  Western  U. 
Teleg.  Co.  37:  912,  72  S.  E.  1059,  157  N.  C. 
416. 

7.  That  the  extent  of  the  injury  sus- 
tained by  one  whose  wagon  was  negligently 
collided  with  by  that  of  another  person,  and 
which  consists  of  an  impairment  of  nervous 
power,  and  weakness  and  suffering  due  to 
the  fright  and  shock  received,  is  indeter- 
minate and  was  impossible  of  anticipation, 
is  not  a  bar  to  a  recovery  of  compensation 
by  the  injured  party  for  the  actual  pecun- 
iary loss  caused  by  the  act  of  the  negli- 
gent party.  Armour  v.  Kollmeyer,  16: 
iiio,  161  Fed.  78,  88  C.  C.  A.  242. 
Digest  1-52  Ii.R.A.(N.S.) 


8.  No  damages  can  be  recovered  by  a 
bystander  for  temporary  blindness  and  ter- 
rible fright  and  nervous  shock  due  to  neg- 
ligence in  causing  an  iron  brace  to  come  in' 
contact  with  a  trolley  wire,  so  as  to  cause 
a  powerful  electric  flash  of  an  explosive 
nature.  Chittick  v.  Philadelphia  Rapid 
Transit  Co.  22:  1073,  73  Atl.  4,  224  Pa.  13. 

(Annotated) 
Causing  miscarriage. 

9.  Miscarriage  following  fright  or 
shock  caused  by  negligence  will  entitle  the 
one  who  suffers  it  to  maintain  an  action 
against  the  one  guilty  of  the  negligence, 
although  there  was  no  physical  contact  with 
the  person.  Pankopf  v.  Hinkley,  24:  1159, 
123  N.  W.  625,  141  Wis.  146. 

10.  One  who  causes  nervous  excitement 
in  a  pregnant  woman  by  his  wrongful  tres- 
pass upon  her  home  to  such  an  extent  as  to 
cause  her  miscarriage  is  liable  to  her  for 
the  bodily  pain  and  suffering  endui'ed  in 
direct  line  of  causation  from  the  wrongful 
act,  although  no  physical  violence  is  done  to 
her  person.  Engle  v.  Simmons,  7:  96,  41  So. 
1023,  148  Ala.  92. 

11.  The  assault  by  an  intoxicated  person 
upon,  and  his  use  of  abusive  language  to- 
ward, another  in  a  house  where  he  is  not 
shown  to  be  a  trespasser,  gives  no  right  of 
action  against  him  to  a  pregnant  woman  in 
the  house,  not  related  to  the  person  assault- 
ed, who  is  out  of  sight  although  within 
hearing  of  the  assault,  and  whose  presence 
is  not  known  to  the  assailant,  for  injuries 
resulting  to  her  from  fright  causing  mental 
pain  and  agony,  illness,  threatened  miscar- 
riage, and  possibly  permanent  impairment 
of  health,  since,  not  knowing  of  her  pres- 
ence, the  assailant  cannot  reasonably  have 
anticipated  injury  to  her  from  his  conduct. 
Reed  v.  Ford,  19:  225,  112  S.  W.  600,  129 
Ky.  471. 


FROGS. 

Negligence  in  failing  to  block  frogs  in 
switches,  see  Master  and  Servant, 
399. 

Assumption  of  risk  from  unblocked  frogs, 
see  Master  and  Servant,  544,  545,  571. 


FROIilC. 

Injury  to  actress  during,  see  Masteb  and 
Servant,  443,  622,  858. 


FRONTAGE  TAX. 


Validity  of,  see  Constitutional  Law,  414, 
642a;  Public  Improvements,  40,  66- 
69. 


1334 


FRUIT— FUR. 


FRUIT. 

Liability  of  carrier  for  loss  of,  during 
transportation,  see  Cabriebs,  806,  810, 
812. 

Sale  of,  by  carrier,  when  rejected,  see  Cab- 
RIERS,  833. 

Order  of  police  department  forbidding  car- 
rier to  deliver,  see  Carriers,  835. 

Duty  to  furnish  cars  for  transportation  of. 
see  Carriers,  960,  963. 

Damages  for  delay  in  transportation  of,  see 
Damages,  287,  288. 

Requiring  marking  of  fruit  packed  for  ship- 
ment, see  Constitutional  Law,  665. 

Cause  of  decay  of,  see  Evidence,  1074. 

Charging  sale  of  rotten  fruit,  see  Libel  and 
Slander,  51. 

Requiring  fruits  exposed  for  sale  to  be  pro- 
tected from  flies  and  dust,  see  Munici- 
pal COBPORATIONS,  193. 

Negligence  causing  injury  to,  from  cold,  see 
Pleading,  339,  340. 


FRUIT  TREES. 


Damages   for   injury  to,   or   destruction  of, 

see  Damages,  472,  477. 
Breach  of  warranty  on  sale  of,  see  Sale, 

174. 


FUEL. 

Right  of  municipality  to  engage  in  sale 
of  fuel  to  inhabitants  for  cost,  see  Con- 
stitutional Law,  385;  Taxes,  38. 


FUGITIVE  FROM  JUSTICE. 

Release  on  bail,  see  Bail  and  Recogni- 
zance, 5,  7,  8. 

Extradition  of,  see  Extradition. 

Review  of  extradition  proceedings  for,  see 
Habeas  Corpus,  23,  24,  57-66. 


FUIiL  CREW  ACT. 

Constitutionality  of,  see  Constitutional 
Law,  440. 

Review  of,  by  court,  see  Courts,  102. 

Injunction  against  enforcement  of,  see  In- 
junction, 355. 


FULL  FAITH  AND  CREDIT. 

To  judgment  of  other  state,  see  Jltdgment, 

IV.  b. 
Digest   1-52  L.R.A.(N.S.) 


FUMES. 

Measure  of  damages  for  injury  to  crops  by, 
see  Damages,  482,  483. 

As  nuisance,  see  Damages,  507 ;  Nuisances, 
18,  199. 

Injury  to  property  by  noxious  fumes,  see 
Equity,  105. 

Injury  to  servant  by,  see  Masteb  and  Serv- 
ant,  219,  220,   436. 

Liability  for  injury  by,  generally,  see  Neg- 
ligence, 38. 


FUMIGATION. 


Negligent  burning  of  insured  house  in  at- 
tempting to  fumigate  it,  see  Insub- 
ANCE,  694. 


FUNDING  COMPANY. 

Fraud  of,  see  Fraud  and  Deceit,  5. 


FUNERAL. 


Absence  of  ceremony,  see  Corpse,  9. 
Liability  of  undertaker  furnishing  carriages 

for  funeral  to  occupants  of  carriages, 

see  Parties,  58. 
Expense  of,  see  Funeral  Expenses. 


FUNERAL  EXPENSES. 

Review  on  appear  of  allowance  for,  see  Ap- 
peal AND  Error,  565,  1598. 

Contract  to  furnish  burial  at  death,  see 
Contracts,  408;  Insurance,  5,  64,  303, 
825. 

As  element  of  damages  for  negligent  killing, 
see  Damages,  401,  402. 

Liability  of  decedent's  estate  for,  see  Exec- 
utors AND  Administrators,  IV.  a,  4. 

Of  married  woman,  liability  of  lier  separate 
estate  for,  see  Husband  and  Wife,  96- 
98. 

Husband's  right  to  reimbursement  from 
wife's  estate,  see  Husband  and  Wife, 
14. 

Liability  of  father  for  burial  expenses  of 
child,  see  Pabent  and  Child,  8. 

Failure  to  itemize  in  pleading,  see  Plead- 
ing, 633. 


FUR. 


Liability  of  wholesaler   for  injury  to  pur- 
chaser of  dyed  fur,  see  Negligence,  57. 


FUTURE  ACQUIRED  PROPERTY— GAME  AND  GAME  LAWS. 


3335 


FUTURE   ACQUIRED   PROPERTY. 

Enforcement  of  contract  to  convey,  see  Spe- 
cific Pebfobmance,  95. 


FUTURE  EARNINGS. 

Mortgage  on,  see  Chattel  Mortgage,  18. 
Assignment  of,  see  Assignment,  6-10,  31, 

32;  Constitutional  Law,  458. 
Garnishment  of,  see  Garnishment,  25,  26. 


FUTURE  INVENTIONS. 

Validity  of  agreement  to  assign,  see  Con- 
tracts, 446. 


FUTURES. 

Broker's  right  to  commission  on  grain  or- 
dered for  future  delivery,  see  Brok- 
ers, 1. 

Brokerage  contracts  for  buying  and  selling 
futures  as  interstate  commerce,  see 
Commerce,  100,  101. 

Validity  of  dealings  in,  generally,  see  Con- 
tracts,  531-534,   590-594. 

Dealing  in,  as  gaming,  see  Gaming,  17. 

Injunction  to  restrain  payment  by  bank  of 
margins  on  option  futures,  see  Injunc- 
tion, 55. 

Conclusiveness  in  other  state  of  judgment 
permitting  recovery  of  money  paid,  see 
Judgment,  284. 

Dealing  in,  as  violation  of  statute  forbid- 
ding combination  to  fix  prices,  see  Mo- 
nopoly AND  Combinations,  43,  44. 


G 


GAMBLING. 


See  Gaming. 


GAME  AND  GAME  LAVTS. 

Appropriation  to  pay  salary  of  state  game 
and  fish  warden,  see  Appropriations, 
3,  4. 

Constitutionality  of  statute  regulating  hunt- 
ing, see  Constitutional  Law,  198. 

Due  process  as  to,  see  Constitutional 
Law,  528. 

Former  conviction  or  acquittal  as  bar  to 
prosecution  for  violation  of  game  laws, 
see  Criminal  Law,  184. 

Jurisdiction  of  equity  to  prevent  wrongful 
interference  with  hunting  privilege,  see 
Equity,  34. 

As  to  fish,  see  Fisheries. 

Injunction  against  hunting  or  fishing  on 
navigable  waters,  or  to  prevent  inter- 
ference therewith,  see  Injunction,  49. 

Injunction  against  trespass  upon  game  pre- 
serve, see  Injunction,  193. 

Right  to  jury  trial  in  prosecution  for  vio- 
lation of,  see  .Jury,  36. 

Hunting  blind  for  purpose  of  shooting  as 
nuisance,  see  Nuisances,  75. 

Sufficiency  of  title  of  statute  as  to  game, 
see  Statutes,   114. 

Special  or  local  laws  for  protection  of  game, 
see  Statutes,  183. 

Computation  of  duration  of  "open  season," 
see  Time,  9. 

Public  right  of  fowling  on  seashore,  see 
Waters,  69. 

1.  Wild   game   is   the   property   of   the 
captor,  and  not  of  him  on  whose  land  it  is 
taken.      State   v.   Horton,    i:  991,   51    S.   E. 
945,  139  N.  C.  588. 
Digest  1-52  I,.R.A.(N.S.) 


2.  The  legislature  may  constitutionally 
forbid  the  killing  of  domesticated  deer  dur- 
ing the  closed  season,  in  order  to  prevent 
an  evasion  of  the  law  for  the  protection  of 
wild  deer.  Dieterich  v.  Fargo,  22:  696,  87 
N.  E.  518,  194  N.  Y.  359. 

3.  A  provision  of  a  statute  for  the  pro- 
tection of  game,  prescribing  an  open  sea- 
son for  deer,  and  providing  that  deer  shall 
not  be  taken  at  any  other  time,  refers  to 
domesticated  as  well  as  wild  deer.  Diete- 
rich v.  Fargo,  22:  696,  87  N.  E.  518,  194  N. 
Y.  359. 

4.  A  provision  of  a  game  law  limiting 
the  number  of  deer  which  can  be  killed  by 
one  person,  and  reqviiring  venison  trans- 
ported during  the  open  season  to  be  accom- 
panied by  the  owner,  does  not  apply  to  that 
raised  in  captivity.  Dieterich  v.  Fargo. 
22:  696,  87  N.  E.  518,  194  N.  Y.  359. 

5.  Where  the  legislature  has  reserved 
title  in  the  state  to  the  wild  game  within 
its  limits,  and  permitted  the  killing  of  it 
in  limited  quantities  under  certain  condi- 
tions, it  may,  without  infringing  the  prop- 
erty rights  of  those  who  have  rightfully 
taken  it,  absolutely  prohibit  any  sale  of  it. 
Blardone,  Appellant,  21:  607,  115  S.  W.  838, 
55  Tex.  Crim.  Rep.  189. 

6.  The  statute  forbidding  those  in  right- 
ful possession  of  game  taken  within  the 
state  from  selling  it  is  not  unreasonable, 
nor  is  it  void  as  having  no  real  or  sub- 
stantial relation  to  the  object  for  which  it 
was  passed,  to  wit,  the  protection  of  game 
within  the  state;  nor  is  it  invalid  as  class 
legislation.  Blardone,  Appellant,  21 :  607, 
115  S.  W.  838,  55  Tex.  Crim.  Rep.  189. 

(Annotated) 

7.  The  rights  of  a  meat  dealer  are  not 
infringed  by  a  statute  forbidding  the  hav- 
ing in  possession  the  carcass  of  any  deer 
unless  the  same  has  th(!reon  the  natural 
evidence  of  its  sex,  although  the  animals  in 


1336 


GAME   OF   HAZARD— GAMING. 


his  possession  are  raised  in  captivity.  State 
V.  Weber,  lo:  1155,  102  S.  W.  955,  205  Mo. 
36.  (Annotated) 

8.  A  statute  requiring  all  fines  collected 
for  violation  of  a  game  law  prohibiting  cer- 
tain persons  to  hunt  in  a  specified  county 
except  upon  certain  conditions,  to  be  paid 
to  the  warden  of  such  county,  who  shall 
make  monthly  reports  to  the  board  of  coun- 
ty commissioners,  is  repugnant  to  a  con- 
stitutional provision  requiring  fines  collected 
within  any  county  to  be  paid  into  the  fine 
and  forfeiture  fund  thereof.  Harper  v.  Gal- 
loway, 26:  794,  51  So.  226,  58  Fla.  255. 
Possession  of  game  killed  outside   of 

state. 
State  power  to  prohibit  importation  of  game 
birds,  see  Commerce,  39. 

9.  That  an  imported  game  bird  is  not 
of  the  same  variety  as  the  local  birds  of 
that  species  is  no  defense  to  a  prosecution 
for  having  it  in  possession,  where  the  stat- 
ute is  made  applicable  to  all  birds  of  that 
family.  People  ex  rel.  Hill  v.  Hesterberg, 
3:  163,  76  N.  E.  1032,  184  N.  Y.  126. 
Hunting  privilege. 

10.  One  who  has  granted  the  exclusive 
right  to  shoot  wild  fowl  upon  the  waters 
upon  his  land  is  not  liable  in  damages 
for  clearing  and  draining  the  land,  if  he 
does  so  in  good  faith  for  the  purpose  of 
improving  it,  but  may  be  so  if  he  acts  in 
bad  faith  in  order  to  injure  the  grantee. 
Isherwood  v.  Salene,  40:  299,  123  Pac.  49, 
61  Or.  572.  (Annotated) 

♦-•-• 


GAME   OF  HAZARD. 

What  constitutes,  see  Contracts,  593. 

■♦  >  » 

GAMES. 

On  Sunday,  see  Sunday,  II. 


GAMING. 

Effect  of  statement  of  account  based  on 
wagering  transaction,  see  Accounts, 
10. 

Effect  of  betting  on  race  on  right  of  partic- 
ipant in,  to  recover  for  injury,  see  Ac- 
tion OR  Suit,  39. 

Note  given  in  compromise  of  suit  upon  an- 
other executed  in  satisfaction  of  gamb- 
ling debt,  see  Bills  and  Notes,  18. 

Check  given  in  gambling  transaction,  see 
Checks,  49,  50;  Trial,  304. 

Enforcement  in  other  state  of  contract  to 
pay  gambling  debt,  see  Conflict  of 
Laws,  13-16. 

Slot  machine  as  property,  see  Constitution- 
al Law,  370. 

As  to  gambling  contracts,  see  Contracts, 
III.  d. 

Punishment  by  both  state  and  municipality, 
see  Criminal  Law,  223-225. 

Digest  1-52  I1R.A.(N.S.) 


Estoppel  to  set  up  defense  that  note  was 
given  in  gambling  transaction,  see  Es- 
toppel, 168,  169;   Pleading,  525. 

Admissibility  of  evidence  to  show  that  note 
was  given  for  gambling  debt,  see  Evi- 
dence, 1935. 

Presumption  of  validity  of  contract  to  pur- 
chase and  carry  stock  on  margin,  see 
Eviue.xce,  522. 

Participant  in  game  as  accomplice  of  adver- 
sary, see  Evidence,  2371. 

Sufficiency  of  indictment  for,  see  Indict- 
ment, ETC.,  126,  129. 

Enjoining  prosecution  for  violation  of  stat- 
ute against,  see  Injunction,  307. 

Joint  liability  of  persons  engaged  in  busi- 
ness of  gambling,  see  Joint  Creditors 
AND  Debtors,  6. 

Validity  of  statute  permitting  injunction 
against  gambling  house,  see  Jury,  47. 

As  to  lottery,  see  Lottery. 

Notice  to  surety  of  broker  that  customer's 
notes  taken  as  collateral  security  were 
executed  in  gaming  transactions,  see 
Notice,  6. 

As  nuisance,  see  Nuisances,  55-60, 162,  163, 
171. 

Partnership  in  business  of,  see  Partner- 
ship, 1. 

Sending  through  mails  offer  to  sell  loaded 
dice  and  marked  playing  cards,  see 
Postoffice,  11. 

Payment  by  agent  of  fines  for  importation 
by  principal  of  gambling  devices,  see 
Principal  and  Agent,  97. 

Replevin  to  recover  gambling  devices,  see 
Replevin,  20. 

Sufficiency  of  title  of  statute  as  to,  see  Stat- 
utes, 122. 

See  also  Betting. 

Wliat  constitutes  gambling  or  gamb- 
ling device. 

What  constitutes  a  "gambling  device,"  see 
also  Contracts,  594. 

1.  The  word  "gaming"  has  no  technical 
meaning,  but  includes  every  contrivance  or 
institution  which  has  for  its  object  any 
sport,  recreation,  or  amusement  for  the 
public  upon  which  money  or  any  other 
article  of  value  can  be  won  or  lost  by  tho 
result  of  such  contrivance  or  institution, 
and  includes  bets  or  wagers  made  upon  any 
physical  contest,  whether  of  man  or  beast, 
when  practised  for  the  purpose  of  deciding 
such  bets  or  wagers.  James  v.  State, 
33:  827,  113  Pac.  226,  —  Okla.  Crim.  Rep. 

2.  By  the  word  "device"  in  a  statute 
making  it  a  misdem£anor  to  conduct  a 
banking  or  percentage  game,  played  with 
dice,  cards,  or  any  device,  for  money,  is 
meant  the  means,  instrument,  contrivance, 
or  thing  by  which  a  banking  or  percentage 
game  is  plaved.  James  v.  State,  34:  515, 
112  Pac.  944;  4  Okla.  Crim.  Rep.  587. 

3.  To  be  liable  to  punishment  under  a 
statute  making  one  guilty  of  a  misde- 
meanor who  deals,  plays,  or  carries  on, 
opens,  or  conducts  any  of  certain  specified 
games,  or  any  banking  or  percentage  game 
played  with  dice,  cards,  or  any  device,  for 


GAMING. 


1337 


money,  one  must  deal,  play,  carry  on,  open, 
or  conduct  a  game  specified  upon  which 
moTiey  or  other  representative  of  value  is 
wagered,  or  some  banking  or  percentage 
game,  played  with  dice,  cards,  or  some 
other  device.  James  v.  State,  34:  515,  112 
Pac.  944,  4  Okla.  Crim.  Jlep.  587. 

4.  A  gambling  game  within  the  general 
language  of  an  ordinance  prohibiting  the 
playing  of  any  such  game  is  not  taken  out 
of  the  operation  of  the  ordinance  by  the 
fact  that  the  general  language  is  preceded 
by  an  enumeration  of  prohibited  games 
which  does  not  include  the  particular  one 
in  question.  Seattle  v.  MacDonald,  17:  49, 
91  Pac.  952,  47  Wash.  298. 

5.  Playing  cards  for  money  on  a  blanket 
in  a  shed  as  an  attachment  of  a  dance  does 
not  warrant  conviction  under  a  statute  pro- 
viding that  any  person  who  shall,  for  the 
purpose  of  gaming,  exhibit  any  gaming  ta- 
ble, bank,  or  device,  shall  be  guilty  of  fel- 
ony. Hanks  v.  State,  17:  1210,  111  S.  W. 
402,  54  Tex.  Crim.  Rep.  1.  (Annotated) 

6.  A  slot  machine  known  as  a  percent- 
age game  of  chance,  in  which  a  fund  is 
constantly  kept,  against  which  the  player 
plays,  and  to  w^iich  his  losings  are  added, 
and  from  which  his  winnings  are  taken,  the 
chances  being  unequal  in  favor  of  the  owner 
of  the  machine,  is  a  banking  game  within 
the  inhibition  of  N.  M.  Laws  1907,  chap. 
64,  p.  25,  §  1,  making  it  unlawful  to  run 
and  operate  any  banking  games  of  chance 
such  as  faro,  etc.,  or  any  other  banking 
games  or  games  of  chance  played  with  dice 
or  cards,  by  whatsoever  name  known.  Terri- 
tory V.  Jones,  20:  239,  99  Pac.  338,  14  N. 
M. '579. 

7.  Slot  machines,  where  the  chances  are 
unequal  in  favor  of  the  machine,  are  ejus- 
dem  generis  with  faro,  monte,  roulette,  fan 
tan,  poker,  craps,  etc.,  specifically  enumerat- 
ed in,  and  prohibited  by  N.  M.  Laws  1907, 
chap.  64,  p.  25,  §  1,  and  are  unlawful.  Ter- 
ritory v.  Jones,  20:  239,  99  Pac.  338,  14  N. 
M.   579.  (Annotated) 

8.  That  a  slot  machine  which  delivers 
an  article  worth  the  coin  deposited,  and 
sometimes  tickets  for  additional  chances  in 
addition  thereto,  indicates  before  each  trans- 
action what  will  be  delivered,  does  not  pre- 
vent its  being  within  the  operation  of  a 
statute  prohibiting  gaming  devices.  Fer- 
guson V.  State,  42:  720,  99  N.  E.  806,  178 
Ind.   568.  (Annotated) 

9.  A  slot  machine  so  operated  that  the 
operator  placing  a  coin  therein  and  taking 
a  chance  on  what  will  be  the  result  of  the 
deposit  of  the  coin,  whether  to  win  or  to 

-lose,  is  a  gambling  device.  Mueller  v.  Wil- 
liam F.  Stoccker  Cigar  Co.  34:  573,  131  N. 
W.  923,  89  Neb.  438.  (Annotated) 

10.  A  pool  table  for  the  use  of  which  the 
loser  of  the  game  is,  to  the  knowledge  of  the 
keeper,  to  pay,  is  a  gambling  device  within 
the  meaning  of  statutes  providing  punish- 
ment for  one  who  exhibits  such  devices. 
State  V.  Sanders,  19:  913,  111  S.  W.  454, 
86  Ark.  353. 

11.  A  pool  game  in  which  a  certain  price 
per  cue  is  charged  for  the  use  of  the  table. 
Digest   1-52  L.R.A.(N.S.) 


all  of  which  is  to  be  paid  by  the  loser  of  the 
game,  is  within  the  statutes  against  gam- 
bling. State  V.  Sanders,  19:  913,  111  S.  W. 
454,  86  Ark.  353.  (Annotated) 

Place  vrliere  gaming  committed. 

12.  The  keeping  of  a  common  gaming 
house  is  a  misdemeanor  at  common  law, 
and  consequently  a  violation  of  the  law 
of  this  state.  State  v.  Baker,  33:  549,  71  S. 
E.   186,  69  W.  Va.  263. 

13.  The  keeping  of  a  common  gaming 
house  is  unlawful,  whether  the  gambling 
therein  be  lawful  or  unlawful.  State  v. 
Baker,  33:  549,  71  S.  E.  186,  69  W.  Va.  263. 

14.  It  is  not  material  that  a  common 
gaming  house  should  be  kept  for  lucre  or 
profit.  State  v.  Baker,  33:  549,  71  S.  E. 
186,  69  W.  Va.  263. 

15.  It  is  not  essential,  to  constitute  the 
offense  of  keeping  a  common  gaming  bouse, 
that  the  gambling  therein  should  be  in 
view  of  the  public,  or  that  the  public  should 
be  disturbed  by  noise  therein.  State  v. 
Baker,  33:  549,  71  S.  E.  186,  69  W.  Va.  263. 

16.  That  only  those  who  gamble  are  ad- 
mitted to  the  room  where  the  gambling  is 
carried  on,  and  the  rest  of  the  public  are 
excluded  therefrom,  does  not  affect  the 
crime.  State  v.  Baker,  33:549,  71  S.  E.  186, 
69  W.  Va.  263.  (Annotated) 

17.  The  keeping  of  a  bucket  shop  is  with- 
in the  provisions  of  a  statute  providing  for 
the  punishment  of  one  who  shall  keep  any 
place  for  the  purpose  of  gaming.  Wade  v. 
United  States,  20:  347,  33  App.  D.  C.  29. 

(Annotated) 

18.  The  business  of  a  cigar  store  where 
slot  machines  are  set  up  for  the  use  of 
customers,  in  which  the  deposit  of  a  coin 
may  draw  a  prize  or  a  blank  to  the  ad- 
vantage of  the  proprietor,  either  by  the 
winnings  or  the  stimulation  of  trade,  is 
illegal,  Mueller  v.  William  F.  Stoecker 
Cigar  Co.  34:  573,  131  N.  W.  923,  89  Neb. 
438. 

Recovery  of  money  lost. 

Jurisdiction   of   equity   in   suits   to  recover 

money  lost  by,  see  Equity,  18. 
Cross  bill  in  suit  to  recover  money  lost  by, 

see  Pleading,  539. 

19.  Fraud  or  unfairness  in  the  game  is 
not  essential  to  a  right  of  action  under  § 
3424,  Rev.  Stat.  1899,  permitting  recovery 
of  money  lost  in  gambling.  Hobbs  v.  Boat- 
right,  5:  906,  93  S.  W.  934,  195  Mo.  693. 
Recovery  for  injury  to  slot  machine. 

20.  No  recovery  can  be  had  for  injury 
to  a  slot  machine  which  can  be  used  only 
as  a  gambling  device,  which  use  is  pro- 
hibited by  statute.  Miller  v.  Chicago  & 
N.  W.  R.  Co.  45:  334,  141  N.  W.  263,  153 
Wis.  431.  (Annotated) 
Seizure  of  property,  used  in. 
Constitutionality    of,    see    Constitutional 

Law,  370,  609,  652. 

21.  A  litigant  will  not  be  heard,  in  a 
court  of  justice,  to  assert  the  right  of  pos- 
session, as  against  an  officer  of  the  law.  of 
an  instrument  or  device,  such  as  a  gambling 
machine,  designed  and  intended  only  for  use 
in  the  commission  of  crime.  Mullen  v. 
Mosely,  12:  394,  90  Pac.  986,  13  Idaho,  457. 


1338 


GANG  PLANK— GARNISHMENT. 


In  connection  T^ith  horse  race.  | 

Sale  of   pools  on  horse  races  as  breach   of  • 
peace,  see  Breach  of  Peace,  4.  ' 

Remedy  of  one  obtaining  license  to  conduct 
business  of  book  making  and  pool  sell- 
ing where  license  is  revoked,  see  CoN- 
TBACTS,  583. 

Sufficiency  of  indictment  for,  see  Indict- 
ment, ETC.,  126. 

Right  of  commission  empowered  to  regulate 
horse  racing  to  forbid  book  making,  see 
License,  42. 

Revocation  of  license  because  of  book  mak- 
ing, see  License,  30. 

Gaming  house  as  nuisance,  see  Nuisances, 
56,  59,  60. 

22.  A  statute  prohibiting  book  making 
and  pool  selling,  etc.,  except  within  the  in- 
closure  of  a  race  track  for  not  exceeding 
two  weeks  in  any  year,  is  not  violative  of 
either  the  Kansas  or  Federal  Constitutions. 
Levy  V.  Kansas  City,  22:  862,  168  Fed.  524, 
93  C.  C.  A.  523. 

23.  Selling  pools  on  horse  races  is  not  the 
playing  of  a  game  by  a  device,  within  the 
meaning  of  a  statute  punishing  such  act. 
State  V.  Ayers,  10:  992,  88  Pac.  653,  49  Or. 
61. 

24.  One  who  oflFers  to  bet  and  so  an- 
nounces to  others  orally,  upon  a  horse  about 
to  engage  in  a  race  in  which  he  lays  odds 
is  not  guilty  of  bookmaking  within  the 
meaning  of  that  term  in  a  statute  declaring 
bookmaking  to  be  a  misdemeanor.  People 
ex  rel.  Lichtenstein  v.  Langan,  25:  479,  89 
N.  E.  921,  196  N.  Y.  260.  (Annotated) 

25.  One  who  opens  or  conducts  a  house, 
room,  or  place  where  the  public  are  invited 
to  assemble  and  by  means  of  any  plan, 
device,  or  scheme  bet  or  lay  wagers  upon 
the  result  of  horse  racing,  is  punishable 
under  a  statute  providing  punishment  for 
every  person  who  deals,  carries  on,  opens, 
and  conducts  any  game  or  any  device  for 
money,  checks,  credit,  or  any  representative 
of  value.  James  v.  State,  33:  827,  113  Pac. 
226,  —  Okla.  Crim.  Rep.  — .       (Annotated) 

26.  A  provision  in  an  act  abolishing  pool 
rooms  that  it  shall  not  apply  to  inclosures 
upon  race  tracks  during  regular  race  meet- 
ings does  not  legalize  bookmaking,  if  sucli 
form  of  gambling  is  prohibited  under  an- 
other statute.  State  Racing  Commission  v. 
Latonia  Agricultural  Asso.  25:  905,  123  S. 
W.  681,  136  Ky.  173. 


GANG  PLAXK. 


Presumption  of  negligence  from  tilting  of, 
see  Evidence,  373. 


GARAGE. 

Liability  of  keeper  of  garage  as  bailee,  see 
Bailment,  18-22. 

Effect  of  condition  in  deed  to  prevent  erec- 
tion of,  see  Covenants  and  Conditions, 
49,  78-80. 

Digest  1-52  I<.R.A.(N.S.) 


Liability  of  proprietor  for  acts  of  servants, 
sec  Ma.steb  and  Servant,  51,  877,  878, 
914-918. 

Negligence  of  chauffeur  generally,  see  Au- 
tomobiles. 


♦  •» 


GARBAGE. 

As  nuisance,  see  Nuisance,  21. 

♦-»-♦ 

GARDEN  TRUCK. 

Duty  of  carrier  to  furnish  refrigerator  cars 
for,  see  Cabriebs,  961,  962. 


GARNISHMENT. 


7.  When  garnishment  lie8,   1—42. 

a.  In  general,    1. 

b.  Against  whom,  2—11. 

o.  What  subject  to  garnishment, 
12-29. 

1.  In   general,    12—26. 

2.  Property     in     custody     of 

law,  21-29. 
d.  Situs  of  debts,  30—42. 
II.  Effect;    rights,     duties,     and    lia- 
bilities  of  garnishee,  43—51. 

a.  In  general,  43—46. 

b.  Duty  as  to  exem.ptions;  effect 

of  failure  to  set  up,  47. 

c.  Effect  of  judgment,  48. 

d.  Effect  of  payment. 

e.  Priorities,   49—51. 
III.  Procedure,  52-51. 

First  pleading  of  defense  on  appeal,  see  Ap- 
peal and  Error,  740. 

Effect  of  appearance  for  purpose  of  quash- 
ing proceeding,  see  Appearance,  19, 
20. 

As  to  attachment,  see  Attachment. 

Garnishment  of  cash  deposit,  see  Banks, 
62. 

Of  proceeds  of  mortgaged  property  by  cred- 
itor of  mortgagor,  see  Chattel  Mort- 
gage, 30. 

Right  of  one  garnishing  corporation  to  avail 
himself  of  rights  of  latter  against  stock- 
holders, see  Corporations,  303,  304. 

Effect  of  remedy  by,  on  right  to  creditors' 
bill,  see  Creditors'  Bill,  4,  5. 

Of  money  in  bank  in  name  of  certain  person 
as  "agent,"  see  Evidence,  614. 

Evidence  in  garnishment  against  executor, 
see  Evidence,  1917. 

Injunction  against,  see  Injunction,  253, 
290-293. 

Matters  concluded  by  judgment  in,  see  Judg- 
ment, 160,  161. 

Conclusiveness  of  foreign  judgment  in  gar- 
nishment proceedings,  see  Judgment, 
283. 

Prohibition  to  restrain  proceedings,  see  Pro- 
hibition, 13,  14. 


GARNISHMENT,  I.  a— c,  1. 


133f> 


Effect  of  remedy  by,  on  right  to  follow  trust 

property,  see  Trusts,  ]47. 
Garnishing  trustee  of  spendthrift  trust,  see 

Trusts,  136. 

I.  When  garnishment  lies, 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

1.  The  drawee  of  a  draft  with  bill  of 
lading  attached  cannot,  in  case  the  con- 
signment does  not  comply  with  the  con- 
tract, attach  the  proceeds  of  the  draft  in 
the  hands  of  the  collecting  bank,  to  malie 
good  his  loss  on  account  of  the  inferiority 
of  the  consignment.  HaM'ins  v.  Alfalfa 
Products  Co.  44:600,  153  L.  W.  201,  152 
Ky.  152. 

b.  Against  whom. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

2.  The  guardian  of  a  person  since  de- 
ceased, being  an  officer  of  the  court,  cannot 
be  garnished  to  reach  funds  to  apply  on 
judgments  against  the  ward's  heirs  and  dev- 
isees. Pugh  V.  Jones,  11:  706,  112  N.  W. 
225,  134  Iowa,  746.  (Annotated) 

3.  A  soldiers'  home  established  on  land, 
jurisdiction  over  which  is  ceded  to  tlie 
Federal  government,  is  not  subject  to  gar- 
nishment in  a  state  court  for  a  debt  due 
a  citizen  of  the  state,'  under  a  statute  per- 
mitting all  corporations  having  a  place  of 
business  or  doing  business  within  the  state 
to  be  summoned  as  trustee.  Brooks  Hard- 
ware Co.  V.  Greer,  46:  301,  87  Atl.  889,  111 
Me.  78.  (Annotated) 
FlaintifF  in  main  action. 

When  freight  money  may  be  considered 
within  power  of  carrier  so  as  to  be 
subject  to  attachment  for  his  debt  in 
hands  of  consignee's  agent,  see  Levy 
AND  Seizure,  18. 

4.  A  consignee  of  goods  cannot  attach 
the  freight  money  in  the  hands  of  his  own 
agent  to  satisfy  a  claim  for  shortage  in  the 
consignment.  Baker  v.  Doe,  34:  510,  70  S. 
E.  431,  88  S.  C.  69.  (Annotated) 

5.  Since  the  right  of  a  consignee  of 
goods  to  satisfy  his  claim  for  shortage  in 
the  delivery  out  of  the  freight  money  due 
is  superior  to  the  rights  of  an  attaching 
creditor  of  the  carrier,  he  will  not  be  per- 
mitted to  levy  an  attachment  upon  such 
freight  money  in  his  own  possession. 
Baker  v.  Doe,  34:  510,  70  S.  E.  431,  88  S.  C. 
69. 

Nonresident. 
See  also  infra,  15. 

6.  The  courts  of  a  state  have  jurisdic- 
tion to  entertain  garnishment  proceedings 
against  nonresident  parties  in  all  cases 
where  the  defendant  and  garnishee  are  both 
personally  served  with  process  while  within 
that  state.  McShane  v.  Knox,  20:  271,  114 
N.  W.  955,  103  Minn.  268. 

Digest  1-52  Ii.R.A.(N.S.) 


Foreign  corporation. 

Situs  of  debt  due,  see  infra,  36,  41,  42. 

7.  A  foreign  insurance  company  author- 
ized to  do  business  within  the  state  is 
chargeable  there  as  trustee  for  money  due 
its  agent  for  commissions  on  business  done 
there,  under  a  statute  providing  that  a  per- 
son doing  business  in  the  state  and  resid- 
ing outside  may  be  charged  as  trustee,  as 
if  he  were  an  inhabitant  of  the  state,  for 
any  credits  of  the  defendant  by  reason  of 
contracts  performed  within  the  state.  Steer 
V.  Dow,  20:  263,  71  Atl.  217,  75  N.  H.  95. 

8.  Railroad  corporations  owning  and 
operating  railroads  in  a  state  other  than 
that  by  whicii  they  were  chartered  have  tlie 
status  of  residents  of  such  state,  although 
they  are  not  citizens  of  it  within  the  mean- 
ing of  clause  1  of  §  2  of  article  3,  and  clause 
1  of  §  2  of  article  4,  of  the  Constitution  of 
the  United  States,  nor  domiciled  in  such 
state  in  the  technical  sense  of  that  term; 
and  such  corporations  may  be  proceeded 
against  as  garnishees,  without  reference  to 
the  jurisdiction  in  which  debts  due  from 
them  were  contracted  or  are  payable.  Balti- 
more &  0.  R.  Co.  V.  Allen,  3:  608,  52  S.  E. 
465,  58  W.  Va.  388. 

Executor  or  administrator. 

9.  An  administrator  may  be  made  gar- 
nishee for  the  amount  owing  him  for  fees, 
in  a  proceeding  to  collect  a  debt  against  him 
individually.  Sanders  v.  Herndon,  5:  1072, 
93  S.  W.  14,  122  Ky.  760.  (Annotated) 

10.  The  administrator  cannot  be  gar- 
nished to  reach  funds  to  satisfy  a  judgment 
against  intestate's  heirs  and  legatees,  if, 
prior  to  his  appointment,  they  have  as- 
signed their  interest  in  the  estate.  Pugh 
V.  Jones,  11:  706,  112  N.  W.  225,  134  Iowa, 
746. 

Tenant. 

11.  One  who  entered  into  possession,  un- 
der a  lease,  of  a  tract  of  land  a  portion  of 
which  belonged  to  a  stranger,  is  not  liable 
to  garnishment  for  the  debt  of  his  imme- 
diate lessor,  although  the  lease  has  not  ex- 
pired or  been  canceled,  where,  to  avoid  evic- 
tion, or  with  the  consent  of  his  lessor,  he 
has  attorned  to  the  stranger.  Nashya 
Light,  H.  &  P.  Co.  V.  Francestown  Soap- 
stone  Co.  18:  396,  69  Atl.  883,  74  N.  H.  511. 

(Annotated) 

c.  What  subject  to  garnishment. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Garnishment  of  proceeds  of  draft  attached 
to  bill  of  lading  and  discounted  by 
bank  for  debt  of  drawer,  see  Bills  of 
Lading,  3. 

As  to  exemptions,  see  Exemptions. 

What  subject  to  levy,  see  Levy  and  Seiz- 
ure, I. 

12.  A  verdict  upon  which  no  judgment 
has  been  entered  is  not  subject  to  garnish- 


1340 


GARNISHMENT,  I.  c,  1. 


merit.     Cappelli  v.  Wood,  4:  624,  62  Atl.  978, 
27  R.  I.  411.  (Annotated) 

13.  Renewal  commissions  due  by  an  in- 
surance company  to  its  general  agent  un- 
der contract  are  subject  to  garnishment  in 
the  hands  of  the  company  in  favor  of  liis 
creditor,  although  they  accrued  partly  from 
the  efforts  of  subagents  and,  under  the  con- 
tract, were  payable  at  his  residence  in  an- 
other state.  Steer  v.  Dow,  20:  263,  71  Atl. 
217,  75  N.   H.  95.  (Annotated) 

14.  Money  received  from  a  lottery  com- 
pany by  its  agent  and  deposited  to  his 
credit  in  the  bank,  with  the  intention  of 
ultimately  applying  it  to  the  payment  of 
one  of  the  certificate  holders  of  the  com- 
pany, remains  the  money  of  the  company, 
and  is  subject  to  garnishment  by  one  hold- 
ing a  claim  against  it.  Fidelity  Funding 
Co.  V.  Vaughn,  10:  11 23,  90  Pac.  34,  18 
Okla.   13. 

15.  Where  the  nonresident  general  agents 
of  a  nonresident  steamship  line,  in  order  to 
prevent  its  funds  coming  under  the  jurisdic- 
tion of  the  courts  of  a  state,  require  its 
brokers  in  that  state  to  deposit  their  checks 
with  the  general  agents  to  cover  future  busi- 
ness, and  cash  them  as  orders  for  transpor- 
tation are  received,  so  long  as  the  amount 
of  the  checks  exceed  the  amount  of  cash  in 
the  brokers'  hands  for  transportation  sold, 
there  is  no  fund  in  their  hands  which  can 
be  reached  by  garnishment  for  the  debt  of 
the  transportation  company.  Larsen  v. 
Allan  Line  S.  S.  Co.  9:  1258,  88  Pac.  753, 
45  Wash.  406. 

16.  Where  a  general  depositor  of  a  bank 
makes  a  deposit  to  his  account,  and  after- 
wards demands  and  receives  of  the  bank  all 
of  his  deposit  except  a  sum  equal  to  the 
total  of  checks  previously  issued  by  him, 
a  statement  of  which  checks,  he,  at  the  time, 
furnishes  the  bank,  but  makes  no  arrange- 
ment that  such  balance  is  to  be  a  special 
deposit,  nor  is  it  accepted  by  the  bank  as  a 
special  deposit,  such  deposit  remains  a  gen- 
eral deposit  and  is  subject  to  attachment. 
Kaesemeyer  v.  Smith,  43:  100,  123  Pac.  943, 
22  Idaho,  1. 

17.  A  safety  deposit  company  may  be 
gal-nished  for  the  contents  of  a  sealed 
package  in  the  box  of  a  customer,  although 
it  is  ignorant  of  the  contents,  if  the  stat- 
ute provides  a  method  by  which  the  court 
can  ascertain  such  contents.  Tillinghast 
v.  Johnson,  41:  764,  82  Atl.  788,  34  R.  I.  136. 

(Annotated) 

18.  The  contents  of  a  safety  deposit  box 
are  not  exempt  from  garnishment  in  the 
hands  of  the  company  maintaining  and  rent- 
ing the  right  to  use  it,  because  it  can  be 
opened  without  injury  only  by  the  use  of 
a  key  in  the  possession  of  the  customer,  if, 
under  the  statute,  the  court  has  power  to 
direct  the  forcible  opening  of  the  box  to 
secure  an  examination  of  its  contents.  Til- 
linghast v.  Johnson,  41:  764,  82  Atl.  788, 
34  R.  I.  136. 

19.  A  judgment  creditor  of  a  tenant  in 
common  who  has  deeded  his  share  in  the 
common  property  to  a  cotenant  cannot,  as 
against  the  rights  of  the  grantee,  reach  by 
Digest  1-52  i:^R.A.(N.S.) 


garnishment  the  share  awarded  to  his  debtor 
after  a  sale  in  partition  proceedings  in- 
stituted by  another  tenant  in  common,  in 
which  the  rights  under  the  deed  were  not 
brought  to  the  attention  of,  or  adjudicated 
by,  the  court.  Shuler  v.  Murphy,  14:  333^ 
44  So.  810,  91  Miss.  518. 

20.  Sums  due  to  a  foreign  railway  car- 
rier from  other  carriers  as  the  former's 
share  of  freight  on  interstate  shipments  may 
be  garnished  under  the  state  laws,  despite 
the  provisions  of  the  interstate  commerce 
act  and  of  U.  S.  Rev.  Stat.  §  5258,  U.  S. 
Comp.  Stat.  1901,  p.  3564,  securing  conti- 
nuity of  transportation.  Davis  v.  Cleveland, 
C.  C.  &  St.  L.  R.  Co.  27:  823,  30  Sup.  Ct. 
Rep.  463,  217  U.  S.  157,  54  L.  ed.  708. 
Insurance  money. 

Exemption  of  insurance  on  life,  see  Exemp- 
tions, 9,  10. 

21.  Funds  arising  from  assessments  upon 
the  members  of  a  mutual  benefit  society,  to 
be  used  exclusively  for  the  payment  of 
claims  of  widows  and  orphans  under  the 
rules  of  the  society,  are  not  subject  to  at- 
tachment in  the  hands  of  a  collector  of  a 
subordinate  lodge  for  a  general  debt  of  the 
society;  since,  if  they  are  the  funds  of  the 
society,  they  are  impressed  with  an  express 
trust,  and  if  they  are  the  property  of  the 
subordinate  lodge  until  transmitted,  they 
are  not  subject  to  attachment  for  the  debts 
of  the  general  society.  Brenizer  v.  Supreme 
Council  of  the  Royal  Arcanum,  6:  2-^5,  53 
S.  E.  835,  141  N.  C.  409.  (Annotated) 

22.  Under  a  contract  by  which  an  insur- 
er undertakes  to  indemnify  an  employer 
for  loss  paid  because  of  injury  to  an  em- 
ployee, there  is  no  obligation  on  the  part 
of  the  insurer  which  can  become  the  sub- 
ject of  garnishment  in  proceedings  by  an 
employee  to  enforce  a  judgment  which  he 
has  secured  against  the  insured.  Allen  v. 
^tna  L.  Ins.  Co.  7:  958,  145  Fed.  881,  76  C. 
C.  A.  265.  (Annotated) 

23.  Where,  under  a  policy  insuring 
against  loss  by  reason  of  the  operation  of 
the  assured's  automobile,  an  action  is 
brought  against  the  assured  by  a  person  in- 
jured by  such  automobile,  and  the  insurance 
company  thereupon  takes  sole  charge  of  the 
defense,  to  the  exclusion  of  the  assured,^ 
as  it  had  the  right  to  do  under  the  policy, 
a  judgment  in  the  action  against  the  as- 
sured becomes,  as  between  plaintiff,  de- 
fendant, and  the  company,  a  liability  or 
debt  owing  unconditionally  by  the  company 
to  the  assured,  which  such  plaintiff  may 
reach  by  garnishment.  Patterson  v.  Adan, 
48:  184,  138  N.  W.  281,  119  Minn.  308. 
Shares  of  stock. 

See  also  Appeal  and  Error,  736. 

24.  A  corporation  which  has  issued 
shares  of  its  stock  to  a  purchaser  cannot 
be  said  to  be  indebted  to  him,  or  to  have  in 
its  possession  property  or  effects  belonging 
to  him,  so  far  as  the  interest  represented  by 
such  shares  is  concerned,  within  the  mean- 
ing of  a  statute  providing  for  the  attach- 
ment or  garnishment  of  a  debtor's  proper- 
ty or  credits,  and  therefore  it  cannot  be 
summoned    as    a    garnishee    in    an    action 


GARNISHMENT,  I.  c,  2,  d. 


1341 


against  him.     Pease  v.  Chicago  Crayon  Co. 
18:  1158,  85  N.  E.  619,  235  111.  391. 

(Annotated) 
Future  earnings. 
Exempting  wages  of  railroad  employees  from 

garnishment,  see  Constitutional  Law, 

183,  184. 
Injunction    against,    see    Injunction,    292, 

293. 

25.  A  writ  of  garnishment  does  not  reach 
salary  unearned  at  the  date  of  service  there- 
of, as  it  applies  only  to  property  in  esse 
at  such  date.  Humphrey  v.  Midkitf,  20:  912, 
48  So.  331,  122  La.  939.  (Annotated) 

26.  A  garnishee  cannot  be  penalized  for 
false  answers  made  to  interrogatories  re- 
garding the  amount  of  salary  paid,  and 
the  amount  of  his  indebtedness  to  a  judg- 
ment debtor,  by  the  rendering  of  a  judgment 
for  a  larger  amount  than  that  due  at  the 
date  of  service  thereof,  since  unearned  sal- 
ary cannot  be  reached  by  anticipation 
through  process  of  garnishment.  Humph- 
rey V.  MidkiflF,  20:  912,  48  So.  331,  122  La. 
939. 

2.  Property  in  custody  of  law. 

(See   also   same  heading  in  Digest  L.R.A. 
1-10.) 

27.  A  fund  in  the  hands  of  special  com- 
missioners in  a  chancery  cause,  which  has 
been  directed  by  decree  therein  to  be  paid 
over  to  a  judgment  debtor,  is  subject  to 
garnishment.  Boylan  v.  Hines,  13:  757,  59 
S.  E.  503,  62  W.  Va.  486.  (Annotated) 

28.  J\inds  in  the  hands  of  a  trustee  in 
bankruptcy  which  the  referee  has  ordered 
him  to  pay  to  a  certain  person  cannot  be 
reached  by  a  creditor  of  such  person  by  a 
summons  of  garnishment  issued  from  a 
state  court,  and  directed,  to  and  served 
upon  the  trustee.  Cowart  v.  W.  E.  Cald- 
well Co.  30:  720,  68  S.  E.  500,  134  Ga.  544. 

(Annotated) 

29.  The  surplus  of  an  execution  sale  left 
after  the  judgment  is  satisfied  is  subject  to 
garnishment  in  the  hands  of  the  sheriff  at 
the  suit  of  another  creditor  of  the  judg- 
ment debtor,  where  the  statute  provides 
that  such  surplus  shall  be  immediately 
turned  over  to  the  defendant,  his  agent,  or 
attorney.  Turner  v.  Gibson,  43:  571,  151  S. 
W.  793,  105  Tex.  488.  (Annotated) 

d.  Situs  of  debts. 

(See  also   same  heading  in  Digest  L.R.A. 
-      1-10.) 

Garnishment  of  nonresident,  generally,  see 
supra,  6,  15. 

Penal  statute  forbidding  assigning  claim 
against  wage  earner  outside  of  state  for 
collection,  see  Case,  5. 

Of  assets  of  nonresident  alien,  see  Conflict 
OF  Laws,  135. 

Making  debt  due  to  nonresident  garnishable 
at  residence  of  garnishee,  see  Consti- 
tutional Law,  607. 

See  also  supra,  8. 

Dieest  1-52  I..R.A.(N.S.) 


30.  One  indebted  to  a  nonresident  can- 
not place  money  in  a  bank  to  his  credit,  in 
defiance  of  his  wishes,  for  the  purpose  of 
conferring  jurisdiction  in  attachment  pro- 
ceedings upon  a  court  where  the  bank  is 
located.  Saxony  Mills  v.  Wagner  &  Co. 
23:  834,  47  So.  899,  94  Miss.  233. 

31.  The  situs  of  property,  as  determined 
by  the  residence  of  the  parties,  which  is 
sought  to  be  reached  by  garnishment,  is  im- 
material, where  personal  service  is  had  up- 
on both  defendant  and  garnishee.  McShane 
v.  Knox,  20:  271,  114  N.  W.  955,  103  Minn. 
268. 

32.  In  garnishment,  the  place  of  payment 
of  a  debt  is  immaterial  where  the  garnishee 
interposes  no  claim  that  he  cannot  be  com- 
pelled to  make  payment  at  a  place  other 
than  that  agreed  upon  with  the  creditor. 
McShane  v.  Knox,  20:  271,  114  N.  W.  955, 
103  Minn.  268. 

33.  A  debt  may  be  attached  by  garnish- 
ment  at  the  place  of  residence  of  the  debtor, 
although  it  be  expressly  made  payable  else- 
where. Baltimore  &  O.  R.  Co.  v.  Allen,  3: 
608,  52  S.  E.  465,  58  W.  Va.  388. 

(Annotated) 

34.  For  the  purposes  of  garnishment, 
a  debt  is  annexed  to  the  person  of  the 
debtor,  and  subject  to  garnishment  where- 
ever  he  is  found,  unless  expressly  made 
payable  elsewhere.  Baltimore  &  O.  R.  Co. 
V.  Allen,  3:608,  52  S.  E.  465,  58  W.  Va.  388. 

I    (Annotated) 

35.  The  provision  of  Ga.  act  August  13, 
1904,  declaring  the  situs  of  any  debt  due  to 
a  nonresident  to  be,  for  the  purpose  of  at- 
tachment, at  the  residence  of  the  garnishee 
within  the  state,  is  not  unconstitutional  as 
an  act  designed  to  have  an  extraterritorial 
effect.  Harvey  v.  Thompson,  9:  765,  57  S.  E. 
104,  128  Ga.   147. 

36.  A  debt  due  from  one  corporation  to 
another,  without  any  limitation  with  re- 
spect to  payment,  may  be  garnished  in  the 
hands  of  such  corporation  in  any  state 
where  jurisdiction  of  the  debtor  can  be  se- 
cured, although  neither  debtor  nor  creditor 
is  located  therein.  Wiener  v.  American  Ins. 
Co.  23:  593,  73  Atl.  443,  224  Pa.  292. 

37.  A  debt  due  by  a  resident  of  this 
state  to  a  nonresident  may  be  reached  by 
garnishment  proceeding  sued  out  upon  a 
tax  execution  issued  by  a  tax  collector  for 
a  special  tax  due  the  state  by  such  non- 
resident, notwithstanding  the  debt  due  the 
nonresident  may  have  been  payable  in  the 
state  where  the  creditor  of  the  garnishee  re- 
sided. A.  B.  Baxter  &  Co.  v.  Andrews,  20: 
268,  62  S.  E.  42,  131  Ga.  120. 

38.  The  domicil  of  one  owing  a  freight 
bill,  and  not  that  of  his  agent  charged  with 
the  duty  of  paying  it,  is  the  situs  of  the 
debt  for  purposes  of  attachment.  Baker 
V.  Doe,  34:  510,  70  S.  E.  431,  88  S.  C.   69. 

39.  A  judgment  for  personal  injuries 
cannot  be  made  the  basis  of  a  garnishment 
proceeding  against  the  judgment  debtor  in 
another  state  to  collect  a  claim  against  the 
judgment  creditor.  Elson  v.  Chicago,  R.  I. 
&  P.  R.  Co.  43:  531,  134  N.  W.  547,  154 
Iowa,  96.  (Annotated) 


1342 


GARNISHMENT,  II.  a— e. 


40.  Where  a  judgment  rendered  in  one 
state  is  satisfied  without  all  the  indebted- 
ness having  been  paid,  under  an  agreement 
that  the  defendant  is  to  pay  the  balance, 
the  remaining  obligation  is  a  contract  debt 
and  is  subject  to  garnishment  in  another 
state.  Sutton  v.  Heinzle,  34:  238,  115  Pac. 
560,   116  Pac.   614,  84  Kan.   756. 

41.  A  debt  due  a  foreign  railroad  com- 
pany may  be  garnished  in  a  state  where 
the  garnishee,  another  railroad  company,  is 
doing  business,  to  secure  a  claim  for  breach 
of  contract  which  occurred  in  the  foreign 
jurisdiction,  although  the  debt  was  payable 
at  the  principal  office  of  the  garnishee  lo- 
cated in  another  state.  Southern  P.  R.  Co. 
V.  A.  J.  Lvon  &  Co.  34:  234,  54  So.  728,  99 
Miss.  186. 

42.  A  foreign  corporation  doing  business 
in  a  state,  subject  to  process  there,  may  be 
garnished  for  a  debt  owing  to  a  nonresi- 
dent defendant,  which  was  incurred  out- 
side the  state;  and  jurisdiction  over  the 
fimd  as  against  the  defendant  and  as 
against  a  nonresident  claimant  of  it,  dis- 
closed by  the  garnishee's  answer,  may  be 
obtained  by  publication  service  upon  them. 
Sutton  V.  Heinzle,  34:  238,  115  Pac.  560,  116 
Pac.   614,   84  Kan.   756. 

II.  Effect;  rights,  duties,  and  liahilities 
of  garnishee. 

^a.  In  general. 

(See  also   same   heading  in  Digest  L.R.A. 
1-70.) 

See  also  infra,  53. 

43.  A  lien  acquired  by  garnishment  is, 
in  the  absence  of  some  special  and  superior 
right  in  plaintiff,  subject  to  all  equities 
existing  between  the  garnishee  and  the 
defendant.  Armitage  Herschel  Co.  v. 
Jacob  Barnet  Amusement  Co.  27:  8ri,  124 
N.  W.  233,  109  Minn.  468. 
Set-off. 

44.  The  equitable  doctrine  of  set-off 
may  be  applied  by  a  court  of  equity  in 
garnishment  proceedings  in  all  cases  where 
the  plaintiff  presents  no  superior  right. 
Armitage  Herschel  Co.  v.  Jacob  Barnet 
Amusement  Co.  27:  811,  124  N.  W.  233,  109 
Minn.  468. 

45.  One  who,  after  selling  chattels  to 
an  insolvent,  seizes  and  sells  them  to  an- 
other, may,  upon  being  garnished  for  their 
value  by  a  judgment  creditor  of  the  buyer, 
set  off  against  the  claim  his  account  against 
the  buyer  for  the  unpaid  purchase  price. 
J.  J.  Smith  Lumber  Co.  v.  Scott  County 
Garbage  Reducing  &  Fuel  Co.  30:  1184,  128 
N.  W.  389,  149  Iowa,  272.  (Annotated) 

46.  A  bank  summoned  as  garnishee  in 
an  action  against  one  of  its  insolvent  de- 
positors may  set  off  against  the  depositor's 
general  account  immatured  notes  held  by  it 
at  the  time  of  the  service  of  the  garnish- 
ment summons,  irrespective  of  whether  the 
bank  knew  of  the  insolvency  at  the  time 
Digest  1-52  Ii.R.A.(N.S.) 


of  such  service,  and  notwithstanding  the 
depositor  had  not  at  such  time  been  formal- 
ly adjudged  an  insolvent.  Armitage  Her- 
schel Co.  v.  Jacob  Barnet  Amusement  Co. 
27:  811,  124  N.  \V.  233,  109  Minn.  468. 

(Annotated) 

6.  Duty    as    to    exemptions;    effect    of 
failure  to  set  up. 

(See  also   same   heading   in   Digest   L.R.A. 
1-70.  J 

47.  A  mutual  benefit  society  whose 
funds  are  attached  in  the  hands  of  its  col- 
lector may,  upon  return  to  the  notice,  raise 
the  question  as  to  the  liability  of  the  funds 
to  attachment;  and  it  is  not  required  to 
permit  the  collector  to  raise  the  question 
when  it  is  sought  to  take  the  funds  out  of 
his  possession  under  the  judgment,  where 
it  asserts  title  to  the  funds  and  the  duty 
to  hold  them  under  an  express  trust.  Bren- 
izer  V.  Supreme  Council  of  the  Royal  Ar- 
canum, 6:  235,  53  S.  E.  835,  141  N.  C.  409. 

c.  Effect  of  judgment. 

(See  also   same  heading  in  Digest  L.R.A. 
1-70.) 

In  other  state. 

48.  The  recovery  of  a  judgment  for 
wages  exempt  from  garnishment  before  the 
entry  of  judgment  in  a  garnishment  pro- 
ceeding in  a  foreigij  state,  where  the  wages 
were  not  exempt,  deprives  the  employer  of 
the  benefit  of  the  foreign  judgment  as  a  de- 
fense to  his  liability,  although  the  garnish- 
ment proceeding  was  instituted  before  the 
local  action,  and  it  is  immaterial  that  an 
appeal  was  taken  from  the  local  judgment, 
upon  which  a  decision  was  not  reached  un- 
til after  the  judgment  was  entered  in  the 
garnishment  proceeding.  Becker  v.  Illinois 
C.  R.  Co.  35:1154,  95  N.  E.  42,  250  HI.  40. 

(Annotated) 

d.  Effect  of  payment. 

(See  same  heading  in  Digest  LJR..A.  1-70.) 

e.  Priorities. 

(See   also   sam,e  heading   in   Digest   L.R.A. 
1-70.) 

Of   deposit   against  which   check   has   been 
drawn,  see  Checks,  7. 

49.  Failure  of  the  holder  of  a  note  to 
secure  which  the  maker  has  assigned  fees  to 
be  earned  by  him  as  a  public  officer,  to 
credit  the  fees  as  they  accrue,  will  not  pre- 
vent his  holding  them  against  a  garni.shee, 
if  they  are  in  possession  of  the  assignee. 
Roesch  V.  W.  B.  Worthen  Co.  31:  374,  130  S. 
W.  551,  95  Ark.  482. 

50.  An   assignment   by   a   public   officer      1 
of  the  fees  to  be  earned  by  him  through  the 
exercise   of  his  office  may  become  effective 
as  the  fees  accrue,  so  as  to  take  precedence 
of     a     garnishment     subsequently     levied. 


GARNISHMENT,  III.;  GAS. 


1343 


Roesch  V.  W.   B.   Worthen   Co,   31:374,   130 
S.  W.  551,  95  Ark.  482.  (Annotated) 

51.  As  between  a  garnishing  creditor  and 
the  holder  of  a  checlc  drawn  by  a  dejDositor 
on  his  account  to  one  wlio  has  advanced 
him  the  amount  of  money  called  for  by  the 
check,  the  holder  of  the  check  has  the  bet- 
ter right  to  tiie  deposit,  to  the  amount 
called  for  by  his  check.  Farrington  v.  F.  E. 
Fleming  Commission  Co.  47:  742,  142  N.  W- 
297,  94  Neb.  108. 

///.  Procedure. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Special  appearance  to  move  to  quash  writ 
of,  see  Appearance,  19,  20. 

Notice  or  hearing  on  garnishment  of  debt 
due  nonresident,  see  Constitutional 
Law,  607. 

Power  of  court  to  order  breaking  of  sealed 
package  and  inspection  of  contents  in 
garnishment  proceedings,  see  Discovery 
AND  Inspection,  5. 

Judgment  in  action  of  garnishment,  see 
Judgment,  32. 

Right  to  jury  trial  in,  see  Juey,  38. 

Right  of  garnishee  to  raise  question  of  juris- 
diction over  principal  defendant,  see 
Judgment,  326. 

Venue,  see  Venue,  2. 

Change  of  venue,  see  Venue,  21. 

Competency  as  witness  in,  of  interested  par- 
ty, see  Witnesses,  63. 

52.  That  a  garnishee  was  not  made  a 
party  to  the  principal  action,  and  no  relief 
was  demanded  against  him  therein,  does 
not  prevent  the  court  from  rendering  judg- 
ment against  him  where  the  writ  of  gar- 
nishment was  served  on  him,  if  by  statute 
it  is  not  necessary  to  commence  an  action 
against  the  garnishee  in  order  to  authorize 
the  court  to  render  judgment  against  him. 
Tiger  v.  Rogers  Cotton  Cleaner  &  Gin.  Co. 
30:  694,   130  S.   W.   585,  96  Ark.   1. 

53.  Failure  to  give  notice  of  a  garnish- 
ment proceeding  to  the  principal  does  not 
entitle  the  garnishee  to  a  discharge  or  dis- 
missal of  the  proceeding,  under  a  statute 
providing  that  no  judgment  shall  be  en- 
tered against  the  garnishee  until  notice  has 
been  given  to  the  principal  defendant.  J.  J. 
Smith  Lumber  Co.  v.  Scott  County  Garbage 
Reducing  &  Fuel  Co.  30:  1184,  128  N.  W. 
389,  149  Iowa,  272. 

Serrice. 

Service  by  publication  in  garnishment  pro- 
ceeding, see  Whit  and  Process,  51,  52. 

54.  The  fact  that  under  §  6982,  Rev. 
Codes  1905,  no  judgment  can  be  had  against 
a  garnishee  until  judgment  is  obtained  by 
the  plaintiff  against  the  principal  defend- 
ant, does  not  preclude  valid  garnishment 
proceedings  where  service  against  the  prin- 
cipal defendant  is  had  by  publication  as 
authorized  by  §  6972,  under  which  service 
personal  judgment  cannot  be  had  against 
the  principal  defendant,  since  a  judgment 
in  rem  in  the  action  against  him  is  author- 
Digest  1-52  L.R.A.CN.S.) 


ized  by  the  further  provision  of  §  6982, 
that  the  court  may  adjudge  the  recovery 
of  an  indebtedness  or  personal  property 
disclosed  or  found  to  be  applicable  to  the 
plaintiff's  demand,  this  provision  relating 
to  §  6977,  prescribing  the  form  of  judgment 
to  be  rendered  against  the  garnishee.  At- 
wood  v.  Roan,  51:  597,  145  N.  W.  587,  26  N. 
D.  622. 

55.  No  valid  judgment  can  be  rendered 
against  the  garnishee  defendant  upon  a  de- 
fault judgment  against  the  principal  debtor, 
based  upon  attempted  service  by  publication 
under  a  void  affidavit,  where,  as  under 
§  6982,  Rev.  Codes  1905,  the  garnishee  pro- 
ceedings are  ancillary  to  the  suit  against 
the  principal  defendant,  and  judgment 
against  him  is  a  prerequisite  to  judgment 
against  the  garnishee  defendant.  Atwood 
v.  Roan,  51:  597,  145  N.  W.  587,  26  N.  D. 
622. 

Intervention. 

56.  Where  the  seller  of  goods  ships  them 
and  makes  a  draft  upon  the  purchaser,  with 
the  bill  of  lading  attached,  which  he  sells 
to  one  who  receives  payment  thereon  from 
the  drawee,  and  the  drawee,  after  paying  the 
draft  to  a  collecting  agent,  seeks  to  hold 
the  proceeds  by  a  garnishment  as  the  prop- 
erty of  the  drawer,  because  of  the  defect  in 
quality  of  the  goods,  the  owner  waives  no 
rights  by  intervening  and  asserting  his  title. 
Central  Mercantile  Co.  v.  Oklahoma  State 
Bank,  33:  954,  112  Pac.  114,  83  Kan.  504. 

57.  When  a  garnishee  answers  that  he 
has  money  in  his  hands  belonging  to  the 
judgment  debtor,  it  is  proper  to  allow  one 
who  claims  the  money,  and  is  not  a  party  to 
the  proceedings,  to  appear  and  contest  the 
right  of  the  plaintiff  to  apply  the  money  on 
his  claim.  Farrington  v.  F.  E.  Fleming 
Commission  Co.  47:  742,  142  N.  W.  297,  94 
Neb.  108. 


GAS. 

7.  In   general,    1—11. 
II.  Compulsory  service,   12, 

III.  Rates;  meter,  13—52. 

a.  In  general,   13—17. 

b.  Regulation  of  rates,  18—52. 

IV.  Injuries    from,;    negligence    as    to, 

53-61. 

a.  In  general,  53—61. 

b.  Cotitrihutory  negligence. 

Transportation  of,  as  interstate  commerce, 
see  Commerce,  36,  37. 

Forbidding  injurious  pumping  of  gas  from 
common  reservoir,  see  Constitutionat^ 
Law,  188;  Parties,  136;  State,  13; 
Statutes,  55;    Waters,  283,  290. 

Contract  by  producer  of,  for  exclusive  right 
of  way  across  land,  see  Contracts,  540. 

Corporate  rights  in  natural  gas  company, 
see  Corporations,  6. 

Formation  of  corporation  for  supplying  nat- 
ural gas  to  public,  see  Corporations, 
IL 


1344 


GAS,  I. 


Lease  by  cotenant  of  right  to  take,  see  Co- 
tenancy, 6. 

Use  of  streets  for  gas  mains,  see  Courts, 
144;  Eminent  Domain,  297-299;  High- 
ways, 32,  44-50;  Municipal  Corpora- 
tions, 92,  93,  232. 

Liability  for  expense  of  cliange  of  pipe  line 
caused  by  change  of  grade  of  highway, 
see  Highways,  140. 

Damages  for  acts  of  employees  of  gas  com- 
pany in  cutting  connections  of  rival 
company,  see  Damages,  71,  674. 

Damages  for  condemnation  of  right  of  way 
for  transportation  of,  see  Damages, 
514,  535. 

Reservation  of  rights  as  to,  in  deed,  see 
Deeds,  56,  57. 

Right  of  lessee  of  gas  privilege  to  maintain 
ejectment,  see  Ejectment,  12, 

Exercise  of  eminent  domain  by  gas  company, 
see  Eminent  Domain,  14,  49,  114,  136- 
138,  154,  155;  Statutes,  169;  Trial, 
636. 

Laying  of  gas  pipes  through  private  lands 
as  a  taking,  see  Eminent  Domain,  185. 

Estoppel  to  assert  that  gas  lease  constitutes 
mere  license,  see  Estoppel,  254. 

Injunction  to  compel  removal  of  gas  pipes 
from  property,  see  Injunction,  35. 

Injunction  against  laying  pipes  for,  in  pri- 
vate property,  see  Injunction,  155. 

Injunction  against  pumping,  see  Injunc- 
tion, 202. 

Death  of  insured  by  inhalation  of,  see  In- 
surance. 

Larceny  of,  see  Larceny,  9,  16,  17. 

As  to  gas  in  mines,  generally,  see  Mines, 
II.  b. 

Power  of  city  as  to  lighting  by,  see  Munic- 
ipal Corporations,  II.  f,  1. 

Power  of  municipal  corporation  to  discrimi- 
nate against  consumer,  see  Municipal 
Corporations,  94. 

Right  of  municipality  to  compel  gas  com- 
pany to  take  out  franchise,  see  Munic- 
ipal Corporations,  95. 

Breach  of  contract  to  lay  gas  pipes  in  street, 
see  Municipal  Corporations,  232. 

Duty  of  municipality  to  care  for  service 
pipe,  see  Municipal  Corporations,  322. 

As  nuisance,  see  Nuisances,  17,  18,  20,  97, 
150,  177. 

Gas  factory  as  nuisance,  see  Nuisances,  17, 
18. 

In  mine,  see  Proximate  Cause,  137. 
Taxation  of  gas  lease,  see  Taxes,  54,  55,  57, 

135,  160,  181. 
Taxation  of  gas  franchise,  see  Taxes,  74, 
123. 

J.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  A  municipality  which  has  granted  a 
natural  gas  company  an  indeterminate  fran- 
chise peTmitting  it  to  lay  pipes  therein  and 
supply  gas  to  it  and  its  inhabitants  may 
compel  the  gas  company  to  exercise  its 
franchise  therein  fairly  and  without  dis- 
Dieest  1-52  Ii.R.A.(N.S.) 


crimination,  so  long  as  such  company  elects 
to  exercise  its  rights  thereunder.  East  Ohio 
Gas  Co.  V.  Akron,  26:  92,  90  N.  E.  40,  81 
Ohio  St.  33. 

2.  A  municipality  cannot  prevent  a 
natural  gas  company  which  has  voluntarily 
forfeited  its  right  to  exercise  its  indetermi- 
nate franchise  therein,  and  has  wholly  with- 
drawn therefrom,  from  removing  its  property, 
nor  take  possession  and  make  use  thereof 
itself,  nor  grant  the  right  to  another 
company  to  use  such  property,  without  due 
process  of  law.  East  Ohio  Gas  Co.  v. 
Akron,  26:  92,  90  N.  E.  40,  81  Ohio  St.  33. 

(Annotated) 

3.  A  natural  gas  company  supplying 
a  city  and  its  inhabitants  with  gas  under 
an  indeterminate  franchise  may  voluntarily 
forfeit  its  right  to  exercise  its  franchise 
within  the  municipality,  and  wholly  with- 
draw therefrom,  at  will.  East  Ohio  Gas  Co. 
V.  Akron,  26:  92,  90  N.  E.  40,  81  Ohio  St.  33. 

4.  A  franchise  permitting  a  natural  gas 
company  to  lay  pipes  and  supply  consumers 
in  a  city,  which  is  silent  as  to  duration,  is 
not  perpetual,  but  the  duration  thereof  is 
indeterminate,  and  will  exist  only  so  long 
as  the  parties  mutually  agree  thereto.  East 
Ohio  Gas  Co.  v.  Akron,  26:  92,  90  N.  E.  40, 
81  Ohio  St.  33. 

5.  A  natural  gas  company  whose  char- 
ter permits  it  to  operate  in  several  cities 
in  the  state  does  not  unlawfully  discrim- 
inate as  to  one  of  such  cities  by  entirely 
abandoning  its  franchise  therein,  and  with- 
drawing its  property  and  business  there- 
from. East  Ohio  Gas  Co.  v.  Akron,  26: 
92,  90  N.  E.  40,  81  Ohio  St.  33. 

6.  A  corporation  formed  for  the  pur- 
pose of  producing  and  furnishing  natural 
gas  and  transporting  it  to  certain  named 
towns  and  cities  situated  in  the  counties 
along  the  line  of  the  company  and  between 
the  termini  thereof,  and  to  other  places  in 
such  counties,  does  not  require  ttie  com- 
pany, in  the  absence  of  specific  charter  im- 
position of  obligation  in  regard  thereto,  to 
conform  to  this  purpose  in  all  of  such 
cities,  villages,  or  places,  but  confers  the 
privilege  of  producing  and  transporting  to 
each  or  all,  in  the  manner  prescribed,  at 
the  election  of  the  company.  East  Ohio 
Gas  Co.  v.  Akron,  26:  92,  90  N.  E.  40,  81 
Ohio  St.  33. 

7.  Where  a  city,  by  ordinance,  grants 
permission  to  a  natural  gas  company  to 
lay  pipes  and  furnish  gas  to  consumers 
therein,  upon  certain  terms  and  conditions, 
which  are  accepted  by  the  company,  the 
rights  of  the  parties  must  be  determined 
by  the  contract  thus  formed.  East  Ohio 
Gas  Co.  v.  Akron,  26:  92,  90  N.  E.  40,  81 
Ohio  St.  33. 

8.  A  gas  company  is  not  prevented 
from  enforcing  a  rule  against  consumers 
generally,  by  making  an  exception  in  a  few 
cases  where  buildings  were  erected  in  such 
manner  as  to  make  the  enforcement  of  the 
rule  impossible,  before  notice  of  the  adop- 
tion of  the  rule  was  given.  State  ex  rel. 
Hallett  V.  Seattle  Lighting  Co.  30:  492,  110 
Pac.  799,  60  Wash.  81. 


GAS,  II.— III.  b. 


1345 


9.  The  requiremenls  as  to  gas  pressure  | 
made  by  N.  Y.  Laws   1905,  chap.  736,  and  J 
Laws    1906,   chap.    125,   fixing   gas   rates   in 
New  York  city,  are  confiscatory,  where,  to 
put  this  pressure  upon  the  mains  and  other 
service  pipes,  in  their  present  condition,  is 
to  run  a  great  risk  of  explosion  and  conse- 
quent disaster,  and  to  eliminate  such  dan- 
ger requires   an   expenditure   of   many   mil- 
lions of  dollars,  from  which  no  return  can 
be   had   at   the   rates   established   by   those 
acts.     Willcox  V.  Consolidated  Gas  Co.  48: 
1134,  29   Sup.   Ct.   Rep.    192,   212   U.   S.   19, 
53  L.  ed.  382. 
Meter  room. 

10.  A  rule  of  a  gas  company  that,  in  all 
buildings  where  more  than  one  meter  shall 
be  required,  a  separate  meter  room  shall 
be  provided,  where  all  can  be  placed,  is 
reasonable,  where  such  arrangement  would 
be  more  sanitary,  less  dangerous,  more  con- 
venient for  finding  leaks,  making  repairs, 
and  making  collections  from  prepayment 
meters,  than  would  the  other,  while  the 
high  pressure  of  the  mains  would  be  con- 
fined to  the  main  service  pipe.  State  ex 
rel.  Hallett  v.  Seattle  Lighting  Co.  30:  492, 
110  Pac.  799,  60  Wash.  81.  (Annotated) 
Monopoly. 

»  11.  A  franchise  granted  by  a  city  to  a 
gas  company,  authorizing  it  to  furnish  gas 
for  the  city  and  its  inhabitants,  is  not  ren- 
dered contrary  to  public  policy,  as  tending 
to  destroy  competition  and  create  a  mo- 
nopoly, by  a  further  provision  that  the  sums 
agreed  to  be  paid  the  city  annually,  in  con- 
sideration of  the  granting  of  the  franchise, 
are  to  continue  only  so  long  as  the  gas  com- 
pany enjoys  its  franchise  without  competi- 
tion. Richardson  Gas  &  0.  Co.  v.  Altoona, 
21:  214,  100  Pac.  50,  79  Kan.  466. 

(Annotated) 

II.  Compttlsory  service. 

(See  also   same   heading   in  Digest   L.R.A. 
1-10.) 

Injunction    to    compel    furnishing,    see    In- 
junction, 40,  47. 

12.  A  gas  company  will  not  be  permit- 
ted to  enforce  a  rule  requiring  security 
from  unknown  or  irresponsible  consumers 
before  it  will  undertake  to  serve  them, 
against  one  who  has  always  been  prompt 
in  the  settlement  of  his  accounts,  but  who 
disputed  a  bill  and  prevailed  in  the  ac- 
tion to  enforce  it,  and  where  it  is  evident 
that  the  rule  was  not  resorted  to  in  good 
faith,  but  from  spite.  Phelan  v.  Boone 
Gas  Co.  31:  319,  125  N.  W.  208,  147  Iowa, 
626.  (Annotated) 

III.  Rates;  meter. 

.   *  •;;:!,  a.  Iti  general. 

(See  also   same  heading  in   Digest  L.R.A. 
1-10.) 

Suit  by  municipality  to   restrain  excessive 

charges,  see  Parties,  34. 
Digest  1-52  Ii.R.A.(N.S.) 


Question  for  jury  as  to  which  rate  is  appli- 
cable in  certain  case,  see  Trial,  599. 
See  also  supra,  10. 

13.  A  city  which,  after  the  expiration  of 
its  contract,  continues  to  use  gas  without 
entering  into  a  new  one,  cannot,  in  an  ac- 
tion against  it  to  recover  at  the  old  rate, 
question  the  lawfulness  of  that  rate  on  the 
ground  that  it  is  unreasonable,  where  it  is 
less  than  the  maximum  rate  fixed  by  :i^-Al- 
ute  for  cities  of  its  class,  as  the  statutory 
rate  must,  as  against  the  consumer,  be 
deemed  reasonable.  Brooklyn  Union  Gas 
Co.  v.  New  York,  15:  763,  81  N.  E.  141,  188 
N.  Y.  334.  (Annotated) 

14.  A  consumer  is  not  entitled  to  enjoin 
the  enforcement  against  him  by  a  gas  com- 
pany of  a  rate  which  the  company  is  au- 
thorized to  charge,  becaiise  it  grants  a  low- 
er rate  to  persons  consuming  gas  for  other 
purposes  in  larger  amounts,  where  no  in- 
jury is  inflicted  upon  him  by  such  rate. 
Boerth  v.  Detroit  City  Gas  Co.  18:  1197,  116 
N.  W.  628,  152  Mich.  654. 

15.  A  person  who  owns  and  conducts  an 
automobile  garage  in  which  he  uses  a  gas 
engine  for  the  purpose  of  generating  an 
electric  current  to  supply  light  for  a  large 
building  in  which  he  carries  on  his  busi- 
ness, to  charge  electric  automobiles  and 
storage  batteries,  and  to  use  the  same  gen- 
erally in  his  business,  is  a  manufacturer 
within  the  meaning  of  a  city  ordinance 
dividing  the  inhabitants  of  the  city  into 
three  classes,  inz.,  "domestic  consumfttion," 
"public  institutions,"  and  "manufacturers," 
for  the  purpose  of  fixing  the  rate  that  may 
be  charged  by  a  gas  company.  Henderson 
V.  Shreveport  Gas,  E.  L.  &  P.  Co.  51:  448, 
63  So.  616,  134  La.  39. 

Meter  rent. 

16.  A  gas  company  whose  rates  are  fixed 
by  the  municipality  cannot  charge  con- 
sumers a  meter  rent  when  consumption  does 
not  reach  a  certain  minimum  amount  per 
month,  in  order  to  bring  the  bills  up  to 
that  amount.  Montgomery  Light  &  Power 
Co.  V.  Watts,  26:  1109,  51 'So.  726,  165  Ala. 
370.  (Annotated) 
Shutting  off  gas  to  enforce  payment. 

37.  Assignees  for  creditors  are  not  iden- 
tified with  the  assignor,  so  as  to  entitle  a 
corporation  which  had  been  supplying  gas 
to  the  assignor  to  refuse  to  supply  it  to 
the  assignees,  who  desire  temporarily  to 
continue  the  business,  until  the  amount  due 
by  the  assignor  is  paid,  under  a  statute 
giving  it  permission  to  shut  oflf  gas  from 
the  premises  of  one  who  refuses  to  pay  the 
amount  due  therefor,  but  forbids  it  to 
do  so  merely  because  a  bill  remains  unpaid 
by  a  previous  occupant  of  the  premises. 
Cox  V.  Maiden  &  M.  Gaslight  Co.  17:  1235, 
85  N.  E,  180,  199  Mass.  324. 

h.  Regulation  of  rates. 

(See  also  Gas,  page  l.-iSO,  in  Digest  L.R.A. 

Delegation  of  power  to  fix  rates,  see  Con- 
stitutional Law,    104. 


85 


1348 


GAS,  III.  b. 


Denial  of  equal  protection  and  privileges  as 
to,  see  CoNSTiruTiONAL  Law,  392a. 

Judicial  power  to  review,  see  Courts,  131, 
132,  150. 

Jurisdiction  of  suit  to  enjoin  enforcement  of 
statute  as  to,  see  Courts,  252. 

Regulation  of,  as  a  taking  of  property  for 
public  use,  see  Eminent  Domain,  222. 

Jurisdiction  of  equity  to  fix  and  enforce 
rates,  see  Equity,  6,  7. 

Dismissal  without  prejudice  of  bill  to  en- 
join enforcement  of  statute  as  to,  see 
Judgment,  40. 

Partial  invalidity  of  statute  as  to,  see  Stat- 

;        utes,  81. 

18.  In  the  absence  of  a  delegation  there- 
of by  the  legislature,  express  or  necessarily 
implied,  a  city  or  town  has  no  power  to 
regulate  rates  for  natural  gas  furnished  by 
a  person  or  corporation  for  public  consump- 
tion in  such  city  or  town,  otherwise  than 
by  contract  with  such  person  or  corporation, 
by  the  terms  of  the  grant  of  franchise.  St. 
Marys  v.  Hope  Natural  Gas  Co.  43:  994, 
76  S.  E.  841,  71  W.  Va.  76.     (Annotated) 

19.  A  provision  in  a  municipal  ordi- 
nance granting  a  franchise  to  erect  and 
operate  works  to  furnish  natural  gas  for 
consumption  in  the  town  or  city  may  con- 
tain fixed  rates  or  charges  for  gas;  and 
such  limitation  is  valid,  and,  when  accepted 
by  the  grantee,  is  a  contract  binding  the 
grantee  of  such  franchise.  St.  Marys  v. 
Hope  Natural  Gas  Co.  43:994,  76  S.  E.  841, 
71    W.    Va.    76. 

20.  Where  a  gas  company  operating  in 
a  municipality  under  a  franchise  granted 
by  such  municipality  to  occupy  the  streets 
with  pipes  to  convey  gas  for  public  con- 
sumption, and  authorizing  specific  rates  of 
charges  for  fire,  changed  its  charge  from  a 
specific  rate  to  a  charge  by  meter, — a  change 
that  was  sustained  by  the  courts  upon  a 
suit  brought  by  the  municipality  to  ques- 
tion it, — and  continued  to  charge  this  rate, 
with  the  acquiescence  of  the  town,  for  thir- 
teen years,  when  it  increased  its  rate,  where- 
upon the  municipality  passed  a  general  or- 
dinance allowing  a  charge  of  the  meter  rate 
first  established  and  prohibiting  a  higher 
charge,  a  modification  of  the  original  ordi- 
nance was  effected,  and  a  new  contract 
created  establishing  the  rate  first  estab- 
lished; and  an  increase  of  the  rate  could 
not  be  eflfected  without  the  consent  of  the 
municipality.  St.  Marys  v.  Hope  Natural 
Gas  Co.  43:  994,  76  S.  E.  841,  71  W.  Va.  76. 

21.  Authority  to  charge  80  cents  per 
thousand  cubic  feet  for  gas  is  conferred 
upon  a  gas  company  by  a  municipal  ordi- 
nance that  it  shall  not  charge  or  receive  a 
higher  rate  than  90  cents  per  thousand  cubic 
feet,  and  each  consumer  shall  be  entitled  to 
a  discount  of  10  cents  per  thousand  cubic 
feet  for  prompt  payment.  Boerth  v.  De- 
troit City  Gas  Co.  18:  1197,  116  N.  W.  628. 
152  Mich.  654. 

22.  A  municipal  corporation  has  authori- 
ty to  fix  by  contract  the  rates  which  shall 
be  paid  by  its  inhabitants  for  gas  furnished 
by  a  public-supply  corporation  under  stat- 
Digest  1-52  I<.R.A.(N.S.) 


utory  authority  to  consent  to  the  laying  of 
the  gas  maiHS  in  its  streets  under  such 
reasonable  regulations  as  it  may  prescribe. 
Boerth  v.  Detroit  City  Gas  Co.  18:  1197, 
116  N.  W.  628,  152  Mich.  654.      (Annotated) 

23.  A  provision  in  a  municipal  ordinance 
granting  a  natural  gas  company  the  right 
to  lay  pipes  and  supply  consumers,  that  the 
city  shall  not  fix,  or  attempt  to  fix,  the  rate 
at  which  gas  shall  be  supplied,  below  a 
specified  sura  for  a  period  of  ten  years,  does 
not  raise  an  implied  contract  that  the  city 
may  regulate  the  price  after  the  expiration 
of  such  period.  East  Ohio  Gas  Co.  v. 
Akron,  26:  92,  90  N.  E.  40,  81  Ohio  St.  33. 

24.  Sufficient  standard  for  the  action  of 
a  commission  empowered  to  fix  the  rates 
to  be  charged  for  gas  is  established  by  a 
provision  that  the  rate  shall  be  within  the 
limits  provided  by  law,  whtch,  in  the  ab- 
sence of  statute,  means  that  the  rate  must 
be  reasonable.  Saratoga  Springs  v.  Sarato- 
ga Gas,  E.  L.  &  P.  Co.  i8j  713,  83  N.  E. 
693,  191  N.  Y.  123. 

25.  The  mere  provision  in  a  statute  em- 
powering a  commission  to  fix  the  rates  to  be 
charged  by  gas  companies,  that  the  agents 
of  the  commission  shall  inspect  the  plant 
and  books  of  the  corporation,  does  not  au- 
thorize it  to  fix  rates  upon  the  report  of 
the  agents,  where  the  statute  also  provides 
for  a  public  hearing  after  notice.  Saratoga 
Springs  v.  Saratoga  Gas,  E.  L.  &.  P.  Co. 
18:  713,  83  N.  E.  693,  191  N.  Y.  123. 

26.  A  provision  that  a  rate  to  be  charged 
by  gas  companies  for  gas  furnished  consum- 
ers shall  continue  for  a  period  of  three  years 
after  it  has  been  fixed  by  the  commission  is 
not  so  unreasonable  as  to  render  the  stat- 
ute invalid.  Saratoga  Springs  v.  Saratoga 
Gas,  E.  L.  &  P.  Co.  18:  713,  83  N.  E.  693, 
191  N.  Y.  123. 

27.  Gas  rates  which  will  yield  to  a  cor- 
poration having  a  monopoly  of  the  gas  serv- 
ice in  New  York  city  a  return  of  6  per  cent 
upon  the  fair  value  of  the  property  actually 
used  by  such  company  in  its  business  are 
not  confiscatory.  Willcox  v.  Consolidated 
Gas  Co.  48:  1 134,  29  Sup.  Ct.  Rep.  192,  212 
U.  S.  19,  53  L.  ed.  382. 

28.  A  discrimination  between  the  indi- 
vidual consumer  and  the  city  in  the  pro- 
visions of  N.  Y.  Laws  1905,  chap.  736,  and 
Laws  1906,  chap.  125,  fixing  gas  rates  in 
New  York  city,  is  not  material  to  the  in- 
quiry as  to  the  reasonableness  of  such  rates 
if  the  total  profits  from  the  gas  supplied 
to  all  consumers  is  sufficient  to  insure  the 
requisite  return  upon  the  property  used  by 
the  gas  company  in  its  business.  Willcox 
v.  Consolidated  Gas  Co.  48:  1134,  29  Sup. 
Ct.  Rep.  192,  212  U.  S.  19,  53  L.  ed.  382. 
Cost  of  mannfactnring. 

29.  In  estimating  the  cost  of  manufac- 
turing gas,  that  consumed  for  the  purpose 
of  the  plant  should  be  computed  at  cost. 
Cedar  Rapids  Gaslight  Co.  v.  Cedar  Rapids, 
48:  1025,  120  N.  W.  966,  144  Iowa,  426. 
Allccrance  for  depreciation. 

30.  In  fixing  the  rate  to  be  charged  for 
gas  by  a  public  service  corporation,  it  should 
be  allowed  to  provide  a  fund  sufficient  to 


GAS,  III.  b. 


1347 


replace    the    different    parts    of    the    plant 
when    it    shall    become    necessary.      Cedar 
Rapids   Gaslight   Co.   v.   Cedar   Rapids,   48: 
1025,   120  N,   W.   966,   144  Iowa,  426. 
Promotion  and   collection  expenses. 

31.  No  allowance  can  be  made  for  the 
expense  of  promoting  and  organizing  the 
company,  in  fixing  the  value  of  a  gas  plant 
for  the  purpose  of  estimating  rates  for  its 
product.  Cedar  Rapids  Gaslitrht  Co.  v. 
Cedar  Rapids,  48:  1025,  120  N.  W.  96C,  144 
Iowa,   426.  (Annotated) 

32.  No  allowance  for  collection  expenses 
slioiild  be  made  in  fixing  the  price  of  gas  at 
a  flat  rate  without  discount  for  prompt 
pnyment,  where  the  company  may  require 
seeuiity  or  a  deposit  of  money  in  advance, 
or  otherwise  render  collection  as  certain 
and  inexpensive  as  it  was  under  the  dis- 
count method.  Cedar  Rapids  Gaslight  Co.  v. 
Cedar  Rapids,  48:  1025,  120  N.  W.  966,  144 
Iowa,  426. 

Gross  receipts  of  company. 

33.  In  ascertaining  the  gross  receipts  of 
a  gas  company  for  the  purpose  of  fixing  its 
rates,  the  annual  appreciation  of  the  value 
of  its  land  should  not  be  considered.  People 
ex  rel.  Kings  County  Lighting  Co.  v.  Will- 
cox,  51:  I,  104  N.  E.  911,  210  N.  Y.  479. 
Valuation  of  property  and  franchises. 

34.  In  ascertaining  the  value  of  the  prop- 
erty of  a  gas  company  or  the  amount  of 
capital  actually  expended  for  the  purpose  of 
fixing  rates,  the  cost  of  replacing  pavement 
now  in  the  streets,  but  not  there  at  the  time 
the  mains  were  laid,  is  not  to  be  taken  into 
consideration.  People  ex  rel.  Kings  County 
Lighting  Co.  v.  Willcox,  51:  i,  104  N.  E. 
911,  210  N.  Y.  479.  (Annotated) 

35.  The  value  of  a  gas  plant  at  a  par- 
ticular time  for  the  purpose  of  determin- 
ing the  justness  of  rates  cannot  be  deter- 
mined by  mere  addition  of  the  separate 
value  of  its  component  parts,  nor  from  the 
cost  alone,  nor  from  what  it  might  have 
been  formerly  sold  at,  if  such  price  was 
influenced  by  excessive  rates,  not  from 
what  it  might  cost  to  replace  alone,  but  the 
value  of  the  system  as  completed,  earning 
a  present  income,  is  the  criterion  to  be 
adopted.  Cedar  Rapids  Gaslight  Co.  v. 
Cedar  Rapids,  48:  1025,  120  N.  W.  966,  144 
Iowa,  426. 

36.  Although  a  gas  company  could  not 
acquire  title  to  land  reclaimed  from  the 
bed  of  a  navigable  river  beyond  high-water 
mark,  if  it  is  in  peaceable  possession  of  it  as 
part  of  its  plant,  that  fact  may  be  con- 
sidered in  estimating  the  value  of  the  plant 
for  fixing  the  rates  of  its  product.  Cedar 
Rapids  Gaslight  Co.  v.  Cedar  Rapids,  48: 
1025,  120  N.  W.  966,  144  Iowa,  426. 

37.  The  value  of  land  purchased  and 
held  by  a  gas  company  for  the  needs  of  pos- 
sible future  growth  cannot  be  considered  in 
estimating  the  value  of  the  plant  for  fixing 
rates.  Cedar  Rapids  Gaslight  Co.  v.  Cedar 
Rapids,  48:  1025,  120  N.  W.  966,  144  Iowa, 
426. 

38.  Discarded  equipment  cannot  be  con- 
sidered in  estimating  the  value  of  a  gas 
plant  for  the  purpose  of  fixing  rates  for 
Digest  1-52  I..R.A.(N.S.) 


its  product.  Cedar  Rapids  Gaslight  Co.  v. 
Cedar  Rapids,  48:  1025,  120  N.  W.  96Q,  144 
Iowa,  426. 

39.  In  estimating  the  value  of  pipes  of 
a  gas  plant  laid  under  ground,  for  the  pur- 
pose of  determining  the  value  of  its  plant 
to  fix  the  rates  for  its  product,  the  price 
of  iron  on  the  day  the  rates  are  fixed  is 
not  the  criterion,  but  the  cost,  the  ordinary 
selling  price,  and  the  present  price  should 
be  considered  in  connection  with  deprecia- 
tion by  inevitable  decay.  Cedar  Rapids 
Gaslight  Co.  v.  Cedar  Rapids,  48:  1025,  120 
N.  W.  966,  144  Iowa,  426. 

40.  In  fixing  the  value  of  a  gas  plant  for 
the  purpose  of  establishing  rates  for  its 
product,  the  cost  of  a  pipe  laid  to  supply  a 
neighboring  village,  which  enforces  tlie  sys- 
tem and  from  which  some  residents  of  the 
city  are  supplied,  should  be  apportioned 
between  the  two  places.  Cedar  Rapids  Gas- 
light Co.  V.  Cedar  Rapids,  48:  1025,  120  N. 
W.  966,  144  Iowa,  426. 

41.  In  establishing  the  value  of  gas 
pipes  laid  beneath  street  pavements,  for  the 
purpose  of  fixing  the  value  of  the  plant  to 
establish  rates  for  its  product,  the  entire 
estimated  cost  of  opening  and  replacing  the 
pavement  is  not  the  criterion  of  value, 
where  there  are  parallel  alleys  and  parkings 
in  which  pipes  might  be  laid.  Cedar  Rapids 
Gaslight  Co.  v.  Cedar  Rapids,  48:  1025,  120 
N.  W.  966,  144  N.  W.  426. 

42.  The  valuation  of  the  franchises  of 
the  constituent  gas  companies  as  fixed  by 
them  when  organizing  a  consolidated  cor- 
poration pursuant  to  N.  Y.  Laws  1884,  chap. 
367,  which  valuation  was  included  in  the 
total  sum  for  which  the  consolidated  cor- 
poration issued  its  stock,  must  be  accepted 
by  the  courts,  in  testing  the  reasonableness 
of  legislative  regulation  of  gas  rates,  as 
conclusive  of  such  value  at  the  time  of 
consolidation,  where  the  validity  of  the 
agreement  fixing  the  valuation  has  always 
been  recognized,  and  the  stock  has  earned 
large  dividends  and  has  been  largely  dealt 
in  for  many  years  on  the  basis  of  the  va- 
lidity of  the  valuation  and  of  the  stock. 
Willcox  V.  Consolidated  Gas  Co.  48:  1134, 
29  Sup.  Ct.  Rep.  192,  212  U.  S.  19,  53 
L.  ed.  382. 

43.  The  assessed  value  of  taxation  of 
the  franchises  of  a  gas  company  furnishes 
no  criterion  by  which  to  ascertain  their 
value,  when  testing  the  reasonableness  of 
gas  rates  as  fixed  by  statute,  where  the 
taxes  are  treated  by  the  company  as  part 
of  its  operating  expenses,  to  be  paid  out  of 
its  earnings  before  the  net  amount  ap- 
plicable to  dividends  can  be  ascertained. 
Willcox  V.  Conbolidated  Gas  Co.  48:  ii34r 
29  Sup.  Ct.  Rep.  192,  212  U.  S.  19,  53 
L.  ed.  382. 

44.  Increase  since  consolidation  of  the 
tangible  assets  of  a  consolidated  gas  com- 
pany and  in  the  amount  of  gas  supplied  by 
it  does  not  justify  the  court,  when  testing 
the  reasonableness  of  the  rates  fixed  by 
statute,  in  attributing  a  proportional  in- 
crease to  the  value  of  the  franciiises  as  fixed 
by  the  constituent  companies  at  the  time 


1348 


GAS,  IV.  a. 


of  consolidation.  Willcox  v.  Consolidated 
Gas  Go.  48:  1 134,  29  Sup.  Ct.  Rep.  192,  212 
U.  S.  19,  53  L.  ed.  382. 

—  time   of   valuation. 

45.  The  valuation  of  the  property  of  a 
gas  company,  upon  which  it  is  entitled  to 
a  fair  return,  must,  as  a  general  rule,  be 
determined  as  of  the  time  when  the  in- 
quiry is  made  regarding  the  reasonableness 
of  rates  fixed  by  statute,  giving  the  com- 
pany the  benefit  of  any  increase  in  the 
value  of  the  property  since  it  was  acquired. 
Willcox  V.  Consolidated  Gas  Co.  48:  1134, 
29  Sup,  Ct.  Rep.  192,  212  U.  S.  19,  53 
L.   ed.    382. 

—  good  w^ill. 

46.  Good  will  cannot  be  taken  into  con- 
sideration in  fixing  the  value  of  a  gas  plant 
for  the  purpose  of  establishing  rates  for 
its  product,  where  it  has  been  granted  a 
monopoly  in  the  community.  Cedar  Rapids 
Gasliu;ht  Co.  v.  Cedar  Rapids,  48:  1025,  120 
N.  W.  966,  144  Iowa,  426. 

47.  No  allowance  for  the  value  of  the 
good  will  should  be  made  in  estimating  the 
value  of  the  property  of  a  gas  company 
upon  which  it  is  entitled  to  earn  a  fair  re- 
turn, for  the  purpose  of  testing  the  reason- 
ableness of  the  rates  fixed  by  statute,  where 
such  company  is  secure  from  possible  com- 
petition. VV'iilcox  V.  Consolidated  Gas  Co. 
48:  1 134,  29  Sup.  Ct.  Rep.  192,  212  U.  S.  19, 
53  L.  ed.  382.  (Annotated) 

—  going  value. 

48.  "Going  value"  is  to  be  considered  as 
a  distinct  item  in  fixing  the  rates  to  be 
charged  by  a  gas  company.  People  ex  rel. 
Kings  County  Lighting  Co.  v.  Willcox,  51:  i, 
104  N.  E.  911,  210  N.  Y.  479. 

49.  "Going  value,"  for  the  purpose  of  fix- 
ing the  rates  of  a  gas  company,  is  an  amount 
equal  to  the  deficiency  of  net  earnings  be- 
low a  fair  return  on  the  actual  investment, 
due  solely  to  the  time  and  expenditures  rea- 
sonably necessary  and  proper  to  the  develop- 
ment of  the  business  and  property  to  its 
present  stage,  and  not  comprised  in  the 
valuation  of  the  physical  property.  People 
ex  rel.  Kings  County  Lighting  Co.  v.  Will- 
cox, 51:  1,  104  N.  E.  911,  210  N.  Y.  479. 

50.  The  item  of  going  value  is  eliminated 
in  fixing  rates  for  a  gas  company  if  it  has 
already  received  a  fair  return  on  its  in- 
vestment, either  by  charging  rates  which 
give  it  a  fair  return  from  the  start,  or 
which  give  it  more  than  a  fair  return  after 
the  business  has  been  developed.  People  ex 
rel.  Kings  Countv  Lighting  Co.  v.  Willcox, 
51:  1,  104  N.  E.  911,  210  N.  Y.  479. 

51.  Where  a  gas  company  paid  no  divi- 
dends for  a  number  of  years  after  it  began 
to  do  business,  going  value  is  to  be  allowed 
in  fixing  its  rates  where  it  was  not  due  to 
bad  management,  the  accumulation  of  sur- 
plus, or  to  betterments  which  have  been  al- 
lowed for  in  the  structural  valuation.  People 
ex  rel.  Kings  County  Lighting  Co.  v.  Will- 
cox, 51:  I,  104  N.  E.  911,  210  N.  Y.  479. 

52.  The  fact  that  a  gas  plant  is  in  suc- 
cessful operation  constitutes  an  element  of 
value  to  be  considered  in  fixing  the  basis 
upon  which  income  may  be  allowed  in  estab- 
Digest   1-52   I..R.A.'(N.S.) 


lishing  rates  for  its  product  so  far  as  it 
can  be  done  and  still  keep  the  cost  reason- 
able. Cedar  Rapids  Gaslight  Co.  v.  Cedar 
Rapids,  48:  1025,  120  N.  W.  960,  144  Iowa, 
426. 

IV.  Injuries  from;  negligence  as  to. 

a.  In  general. 

(See  also   same  heading   in   Digest  L.R.A. 

1-yo.j 

In  ejection  of  poisonous  gas  by  landlord  in- 
to leased  room,  see  Landlord  and  Ten- 
ant, 142. 

Proximate  cause  of  injury  or  death  by,  see 
Proximatb  Cause,  25,  68. 

53.  The  care  imposed  by  law  upon  gas 
companies  in  handling  their  product  is  not 
ordinary  care,  as  distinguished  from  extra- 
ordinary care,  but  due  care,  or  care  com- 
mensurate with  the  danger.  Gould  v. 
Winona  Gas  Co.  10:  889,  111  N.  W.  254,  100 
Minn.  258. 

54.  Unless  commanded  by  statute  or  mu- 
nicipal regulation,  there  is  no  legal  duty 
compelling  a  gas  company  to  maintain  and 
operate  a  cut-off  for  the  safety  of  property 
to  which  it  supplies  gas,  and  as  to  which 
the  owner  has  provided  the  gas  appliances. 
George  v.  Tri-State  Gas  Co.  52:  537,  81  S. 
E.  722,  —  W.  Va.  — . 

55.  A  company  supplying  gas  to  premi- 
ses wherein  the  owner  has  his  own  ga.s  ap- 
pliances is  not  liable  for  failure  to  shut  off 
the  gas  from  the  premises  when  they  are 
on  fire,  unless  it  is  requested  to  do  so,  or 
in  some  other  way  is  put  to  notice  that  its 
aid  in  that  particular  is  necessary  to  a  pro- 
tection of  the  property,  especially  where  the 
owner  has  a  means  of  shutting  off  the  gas. 
George  v.  Tri-State  Gas  Co.  52:  537,  81  S. 
E.  722,  —  W.  Va.  — . 

Negligence  as  to  escape  of  gas. 

Injury  to  employee  by  escape  of,  from  am- 
monia tank,  see  Master  and  Servant, 
436. 

See  also  infra,  61. 

56.  A  gas  company  which  has  assumed 
the  duty  of  keeping  in  repair  the  service 
pipes  through  which  it  supplies  gas  to 
street  lamps  belonging  to  the  municipality 
cannot  avoid  liability  for  injuries  to  third 
persons  from  gas  escaping  through  its  neg- 
lect of  duty,  because  the  pipes  actually 
belonged  to  the  municipality.  Consolidated 
Gas  Co.  V.  Connor,  32:  809,  78  Atl.  725,  114 
Md.  140. 

57.  That  death  was  caused  by  inhalation 
of  gas  by  one  disconnecting  service  pipes 
will  not  relieve  from  liability  for  his  death 
a  gas  company  which  had  negligently  left 
them  in  a  condition  indicating  that  they 
were  dead,  when  they  in  fact  conveyed  ga.«, 
unless  it  was  done  voluntarily.  Pulaski 
Gaslight  Co.  v.  McClintock,  32:  825,  134  S. 
W.    1189,  97   Ark.   576. 

58.  A  gas  company  is  negligent  in  run- 
ning without  request  from,  or  notice  to,  the 
occupants   of   the    property,   a    new   service 


GAS,  IV.  b— GENUINENESS. 


1349 


pipe  fioni  its  main  to  a  house  in  which  the 
use  of  gas  has  long  been  discontinued,  and 
from  which  the  meter  has  been  removed, 
leaving  the  old  pipe  cut,  and  partly  exposed 
by  a  change  of  street  grade,  and  apparently 
dead,  and  making  underground  connection 
with  the  riser  leading  to  the  meter  cock, 
the  position  of  which  is  undisturbed,  there- 
by indicating  that  it  is  still  a  part  of  the 
dead  pipe,  and  that  no  gas  reaches  the 
meter  cock.  Pulaski  Gaslight  Co.  v.  Mc- 
Clintock,  32:  825,   134  S.  W.   1189;  97  Ark. 

r.76. 

Explosion. 

Prejudicial  error  as  to  jury  in  action  for 
injury  by,  see  Appeal  and  Erbor,  1476. 

Presumption  and  burden  of  proof  as  to  neg- 
ligence, see  Evidence,  462,  463. 

Relevancy  of  evidence  as  to  negligence,  see 
Evidence,  1765. 

Variance  between  pleading  and  proof  in  ac- 
tion for  injuries,  see  Evidence,  2484. 

As  proximate  cause  of  injury,  see  Proxi- 
mate Cause,  61. 

Question  for  jury  as  to  negligence,  see 
Trial,  574,  575. 

Source  of  gas  causing  explosion  as  question 
for  jury,  see  Trial,  600. 

59.  A  gas  company  which  uses  ordinary 
care  to  cap  a  pipe  leading  into  a  dwelling, 
upon  the  removal  of  a  stove  which  has  been 
supplied  by  it,  and  to  maintain  it  in  a 
safe  condition,  is  not  liable  for  the  de- 
struction of  the  house  by  fire  due  to  the 
escape  of  gas  therefrom.  Louisville  Gas 
Co.  V.  Guelat,  42:  703,  150  S.  W.  656,  150 
Ky.  583. 

60.  The  turning  by  a  gas  company  of 
gas  into  pipes  which  it  has  failed  to  keep 
in  repair,  as  required  by  its  unaertaking 
with  the  municipality,  as  its  agent  in  the 
supplying  of  gas  for  street  lighting,  is  a 
misfeasance,  and  not  merely  a  nonfeasance 
of  its  duty  to  repair,  and  therefore  it  is 
liable  for  injuries  thereby  caused  to  stran- 
gers to  the  undertaking.  Consolidated  Gas 
Co.  V.  Connor,  32:  809,  78  Atl.  725,  114  Md. 
140.  (Annotated) 
Injury  to  trees  or  plants. 
Presumption  as  to  negligence,  see  Evidence, 

445. 

61.  The  liability  of  a  gas  company  to 
a  landowner  for  the  destruction  of  trees  on 
a.  boulevard  in  front  of  his  premises,  caused 
by  the  escape  of  gas  from  the  mains  of  the 
company  on  the  street,-  is  to  be  determined 
in  accordance  with  the  principles  of  negli- 
gence applicable  to  authorized  public  works, 
and  not  by  thie  doctrine  of  insurance  from 
harm  by  one  maintaining  or  controlling 
dangerous  agencies.  Gould  v.  Winona  Gas 
Co.   10:  889,  111  N.  W.  254,  100  Minn.  258. 

(Annotated) 

ft.  Contributory  negligence. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Imputing  to  owner  of  building  injured  by 
explosion  negligence  of  tenant,  see  Neg- 
ligence, 273. 

As  question  for  jury,  see  Trial,  576. 

Digest  1-52  I,.R.A.(N.S.) 


GASOLENE. 

Injury  by  explosion  of,  see  Explosions  and 

Explosives,  4. 
Use  of,  on  insured  premises,  see  Insurance, 

269-274,   509,   534. 
Storing  of  large  quantity  of,  near  private 

dwelling  as   nuisance,   see   Nuisances, 

51. 


GAS    STOVE. 

As  fixture,  see  Fixtures,  19. 


GATES. 

Duty  of  carrier  to  keep  gates  on  platform 

closed,  see  Carriers,  287. 
Leaving  bars   or  gates  for  convenience  of 

neighbor  when  fencing  land  as  aflfecting 

acquisition  of  easement  by  prescription, 

see  Easements,  25. 
Obstruction    of    easement    of    way    by,    see 

Easements,  77,  78. 
Obstruction  of  highway  by,  see  Highways, 

191. 
At  railroad  crossing,  see  Railroads,  II.  d, 

3,  c. 
Toll  gates,  see  Tolls  and  Toll  Roads. 

^♦» 


GENERAL  AVERAGE. 

See  Average. 


♦  >» 


GENERAL  DEMURRER. 

See  Pleading,  559,  572,  573,  609,  635,  648. 


GENERAL    DENIAL. 

Evidence    admissible    under,    see    Evidence, 

2429,  2459-2405. 
In  general,  see  Pleading,  451-457. 


• ♦<-♦ 

GENERAL   REPORT. 

Evidence  of,  see  Evidence,  X.  a. 

♦-•-♦ 

GENUINENESS. 

Of  check;  duty  of  banks  and  depositor  as 
to  discovery,  see  Banks,  IV.  a,  3,  b. 

Of  drawer's  signature,  see  Banks,  121,  122. 

Of  prior  signatures  to  notes,  warranty  of, 
see  BiTLS  and  Notes,  74. 

Of  handwriting;  evidence  as  to,  generally, 
see  Evidence,  IV.  p;  741,  742. 


1350 


GEOGRAPHICAL  MATTERS— GIFT,  I. 


Opinion  evidence  as  to  genuineness  of  hand- 
writing, see  Evidence,  VII.  m. 
As  question  for  jury,  see  Trial,  622. 


♦  •» 


GEOGRAFHICAI.  MATTERS. 

Judicial  notice  as  to,  see  Evidence,  I,  d. 


GEOGRAPHICAL   NAME. 
As  tradename,  see  Tradename,  17. 


GIFT. 

iv    I.  In  general,  1—16. 
S'  //.  Causa  mortis,  17,  18. 
III.  Delivery,  19—26. 

Acceptance  of,  by  officer  as  bribery,  see 
Bribery,  3. 

To  charity,  see  Charities. 

Consideration  for  subscription,  see  Con- 
tracts, 100-102. 

Oral  promise  of,  as  within  statute  of  frauds, 
see  Contracts,  208,  237. 

In  consideration  of  specified  location  of  pub- 
lic building,  see  Contracts,  518. 

EflFect  of  divorce  on  gift  of  property  by  hus- 
band to  wife,  see  Divorce  and  Sepa- 
ration, 133. 

To  mistress,  see  Equity,  130;  Evidence, 
283,  288. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  283,  284,  288,  597-600; 
Trusts,  41,  60,  62. 

Presumption  of  advancement  to  child,  see 
Evidence,  567. 

Rebuttal  of  presumption  of  gift,  see  Evi- 
dence, 1921. 

Evidence  of  declarations  of  alleged  donor, 
see  Evidence,  1454. 

Sufficiency  of  proof  of,  see  Evidence,  2282, 
2283. 

Action  against  administrator  of  insured  per- 
son to  whom  donee  of  policy  delivers  it 
for  collection,  see  Executors  and  Ad- 
ministrators, 63. 

Validity  of  gift  by  husband  to  wife,  see 
Husband  and  Wife,  104. 

Injunction  against  violation  by  public  au- 
thority of  conditions  of  gift,  see  In- 
.tunction,  311. 

To  city,  see  Municipal  Corporations,  305. 

Implied  gift  to  objects  of  power,  see  Povr- 
ERS,  5. 

Of  public  money,  see  Public  Moneys. 

Tax  on  gift  by  will,  see  Taxes,  V. 

By  town  council  to  judgment  debtor,  see 
Towns,  3. 

As  to  creation  of  trusts,  see  Trusts,  I.  a. 

As  to  trusts,  genorrlly.  sro  Trusts. 

By  will,  see  Wills,  ITT. 

Of  insurance  policy,  see  Witnesses,  43. 

Digest  1-52  L.R.A.(N.S.) 


/.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
t-10.) 

1.  An  absolute  gift  of  personal  property 
is  not  defeated  or  transformed  into  a  testa- 
mentary act  by  the  fact  that  the  grantor  re 
serves  to  himself  the  income  thereon  duriiij^ 
life.  Robertson  v.  Robertson,  3:  774,  40  So. 
104,  147  Ala.  311. 

2.  A  gift  by  a  woman  to  her  brothor 
is  based  on  a  sufficient  consideration.  Can 
dee  v.  Connecticut  Sav.  Bank,  22:  568,  71 
Atl.  551,  81  Conn.  372. 

3.  Mere  lack  of  independent  advice  will 
not  render  void  a  gift  by  a  principal  to  hia 
agent  of  the  bulk  of  his  estate,  when  it  is 
shown  to  be  the  uninfluenced,  deliberate,  and 
intelligent  act  of  the  donor.  Zimmerman  v. 
Frushour,  16:  1087,  69  Atl.  796,  108  Md.  115. 

(Annotated) 
Failure  of  consideration. 

4.  A  wife  to  whom  property  is  given 
by  her  husband  in  ignorance  of  her  adul- 
tery cannot,  in  case  he,  upon  learning  of  it, 
immediately  separates  from  her,  retaining 
possession  of  the  property,  recover  from 
him,  since  the  consideration  for  the  gift 
failed  and  it  became  unenforceable.  Thom- 
as V.  Thomas,  35:  124,  109  Pac.  825,  113 
Pac.  1058,  27  Okla.  784.  (Annotated) 
Revocation. 

5.  A  gift  of  his  accumulated  property 
by  a  man  to  his  children  at  a  time  whpn  he 
is  earning  a  good  income,  is  not  voidable  at 
his  option,  although  the  act  may  be  im- 
provident. James  v.  Aller  (N.  J.  Err.  & 
App.)   a<  285,  62  Atl.  427,  68  N.  J.  Eq.  666. 

(Annotated) 
Of  land. 

Parol  gift  of  real  estate,  see  Contracts, 
329,  330;   Specific  Performance,  51. 

6.  The  whole  40-acre  tract  is  not  in- 
cluded in  a  gift  of  "the  house  and  premises 
now  occupied  by  you,  which  includes  the 
garden  and  orchard  back  of  the  house  and 
the  pasture  north  of  the  house,  more  fully 
described  in  my  last  will,  in  the  40-acre 
tract  with  other  lands,"  where  the  remainder 
of  the  tract  was  separated  by  a  fence  from 
the  property  occupied,  and  remained  in  the 
possession  and  control  of  the  grantor. 
Barnes  v.  Banks,  8:  1037,  79  N.  E.  117,  223 
111.352.  .  (Annotated) 

7.  A  present  gift  of  a  fee  estate  is  ef- 
fected in  equity  by  a  writing  informing  an 
occupant  of  land  that  "I  now  present  you 
the  house  and  premises,"  describing  them, 
"more  fully  described  in  my  last  will,"  al- 
though in  the  will,  previously  executed,  they 
were  included  in  a  larger  tract  placed  in 
trust  for  the  donee  for  life,  with  remainder 
over.  Barnes  v.  Banks,  8:  1037,  ~i^  N.  E.  117, 
223  111.  352. 

Of  note  or  check. 

Right  of  one  executing  note  as  a  gift  to 
recover  from  payee  amount  paid  by 
former  to  bona  fide  purchaser,  see  As- 
sumpsit, 5. 


GIFT,  II.,  III. 


1351 


C^eck  payable  after  death  of  maker,  for 
services,  and  a  further  sum  as  a  gift, 
see  Contracts,  66. 

Delivery  of,  see  infra,  20,  23. 

8.  A  promissory  note  may  be  the  sub- 
ject of  a  gift  inter  vivos  from  the  payee  to 
the  maker.  Lanham  v.  Meadows,  47:  592, 
78  S.  E.  750,  72  W.  Va.  60. 

9.  A  cheek  delivered  to  the  payee,  but 
not  payable  until  after  the  death  of  the 
maker,  is  not  valid  as  a  gift  inter  vivos. 
Foxworthv  v.  Adams,  27:  308,  124  S.  W.  381, 
136   Ky.   403.  (Annotated) 

10.  An  indorsement  on  a  note  by  which 
the  owner  gives  it  to  his  wife,  reserving 
to  himself  the  right  to  the  interest  during 
life,  and  to  the  note  itself  should  lie  sur- 
vive her,  does  not  effect  a  valid  gift  to  her 
inter  vivos.  Foxworthy  v.  Adams,  27:  308, 
124  S.  W.  381,   136  Ky.  403. 

Of  bank  deposit. 

Gift  causa  mortis,  see  infra,  17,  18. 

See  also  supra,  9. 

11.  A  gift  inter  vivos  is  not  established 
by  depositing  a  fund  in  bank  with  the  state- 
ment that  it  is  intended  for  the  donee, 
taking  back  a  certificate  of  deposit,  and 
placing  thereon  an  indorsement  to  pay  the 
amount  to  the  donee,  handing  the  certificate 
to  the  donee  to  read,  with  the  statement 
"It  is  yours,"  and  then  taking  and  retain- 
ing the  certificate  till  death,  to  enjoy  the 
use  of  it  during  life.  Harris  Bkg.  Co.  v. 
Miller,  i:  790,  89  S.  W.  629,  190  Mo.  C40. 

(Annotated) 

12.  The  mere  issuance  by  a  savings  bank 
at  the  direction  of  a  depositor,  of  a  pass 
book  in  the  name  of  herself  or  son,  "either 
to  draw,"  will  not  constitute  a  present  gift 
to  the  son  of  the  fund,  evidenced  by  the 
pass  book,  where  the  mother  did  not  sur- 
render possession  of  the  book  or  of  her  right 
to  draw  upon  the  fund.  Schippers  v. 
Kempkes  (N.  J.  Err.  &  App.)  12:  355,  67 
Atl.  74,  —  N.  J.  — . 

13.  That  a  mother  who  deposited  money 
in  a  savings  bank  had  the  account  opened  in 
the  name  of  herself  or  son,  "either  to  draw," 
does  not  constitute  a  valid  gift  of  the 
fund,  to  take  effect  upon  the  mother's 
death.  Schippers  v.  Kempkes  (N.  J.  Err.  & 
App.)  12:  355,  67  Atl.  74,  —  N.  J.  — . 

(Annotated) 

14.  A  valid  gift  of  a  savings-bank  de- 
posit is  not  prevented  by  a  reservation  by 
the  donor  of  the  right  to  the  interest  dur- 
ing life  if  needed.  Goodrich  v.  Rutland 
Sav.  Bank,  17:  181,  69  Atl.  651,  81  Vt.  147. 

15.  One  who,  having  lost  his  pass  book, 
signs  an  order  upon  a  savings  bank  to  pay 
the  fund  to  another,  and  delivers  the  order 
to  the  donee,  with  the  statement  that  he 
gives  him  the  fund  "subject  to  his  (the 
donor's)  use  of  the  same  during  his  life- 
time," effects  a  valid  gift  of  the  fund, — at 
least,  when  the  order  has  been  recognized 
and  accepted  by  the  bank.  Candee  v.  Con- 
necticut Sav.  Bank,  22:  568,  71  Atl.  551,  81 
Conn.  372.  (Annotated) 

16.  A  gift  is  established  by  the  de- 
positing in  bank,  through  another,  of  mon- 
ey in  the  names  of  the  minor  children  of 
Digest  1-52  L.R.A.(N.S.) 


the  donor,  the  taking  of  certificates  of  de- 
posit in  their  names,  and  the  retention  of 
such  certificates  by  the  one  actually  mak-  "i 
ing  the  deposit  as  guardian  for  the  donees, 
where  the  bank  knew  that  the  children 
were  infants,  and  accepted  the  money  as 
belonging  to  them.  McMahon  v.  German - 
American  Nat,  Bank,  29:  67,  127  N.  W.  7, 
HI  Minn.  313. 

II.  Causa  mortis. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Sufficiency  of  delivery  of,  see  infra,  20,  23. 
Presumption  of,  see  Evidence,  598,  600. 
Validity  of,  as  against  donor's  husband,  see 

Husband  and  Wife,  137. 
Gift    in    contemplation    of    death,    within 

meaning  of  statute  taxing  such  gifts, 

see  Taxes,    306,   307. 
Gift  by  will,  see  Wills,  III. 
Competency  of  surviving  party  to  gift  causa 

mortis  to  testify  as  to,  see  Witnesses, 

50. 

17.  It  is  unnecessary  that  a  check  on  a 
bank,  delivered  and  intended  by  the  drawer 
as  a  gift  causa  mortis,  should  disclose  on 
its  face  that  it  covers  the  entire  bank  cred- 
it of  the  drawer,  but  such  fact  may  be 
shown  by  proof  on  the  trial.  Varley  v. 
Sims,  8:  828,  111  N.  W.  269,  100  Minn.  331. 

18.  A  check  on  a  bank  for  the  entire 
amount  of  the  drawer's  credit  therein,  de- 
livered to  a  person  as  a  gift  of  the  money, 
though  una,ccepted  by  the  bank,  operates  as 
an  assignment  of  the  fund;  and  if  so  de- 
livered and  intended  by  the  donor,  in  antici- 
pation of  death  from  an  impending  peril 
from  which  he  subsequently  dies,  it  is  valid 
as  a  gift  causa  mortis.  Varley  v.  Sims, 
8:  828,  111  N.  W.  269,  100  Minn.  331. 

III.  Delivery. 

(See  also   same   heading   in   Digest   L.R.A. 

1-10.) 

Necessity  and   sufficiency   of   delivery. 

Note  payable  only  if  collected  in  lifetime 
of  payee,  as  attempted  gift  without 
complete  delivery,  see  Bills  and 
Notes,  12. 

19.  To  make  a  complete  gift  of  personal 
property  inter  vivos,  there  must  be  a  de- 
livery of  the  property  from  the  donor  to 
the  donee,  or  to  some  person  for  him.  Dew- 
ey V.  Barnhouse,  29:  166,  109  Pac.  1081,  83 
Kan.  12. 

20.  The  surrender  of  a  promissory  note, 
with  intent  to  cancel  the  debt,  is  a  sufficient 
delivery  thereof  to  constitute  a  gift  inter  vi- 
vos from  the  pavee  to  the  maker.  Lanham 
V.  Meadows,  47:  592,  78  S.  E.  750,  72  W.  Va. 
610. 

21.  To  establish  a  gift,  by  a  husband 
to  a  wife,  of  jewelry  purchased  by  him  as  an 
investment  for  their  joint  benefit  and  also 
for  the  purpose  of  (A'namenting  the  wife 
on    suitable    occasions,    a    delivery    of    the 


1352 


GIFT  ENTERPRISE— GOOD  FAITH. 


property  to  her  by  the  husband,  with  the 
intention  of  devesting  himself  of  all  do- 
minion and  control  of  it  and  of  vesting 
title  in  her,  must  be  clearly  shown.  Far- 
row V.  Farrow  (N.  J.  Err.  &  App.)  ii:  389, 
(55  Atl.  1009,  72  N.  J.  Eq.  421.     (Annotated) 

22.  Where  bank  stock  belonging  to  a 
husband  was  in  a  box  in  a  vault  in  a  room 
adjoining  that  in  which  the  husband  lay 
on  his  deathbed,  and  both  keys  to  such 
box — one  of  which  was  usually  carried  by 
the  husband,  the  other  by  the  wife — were 
in  possession  of  the  wife,  when  the  husband 
gave  such  bank  stock  to  the  wife  by  words 
in  prcesenti,  and  instructed  her  to  take  his 
key  to  the  box  and  keep  it  and  allow  no 
one  to  have  it,  the  mere  transfer  by  the 
wife  of  the  husband's  key  from  his  key  ring 
to  hers  is  not  a  sufficient  delivery  to  con- 
stitute a  valid  donatio  causa  mortis. 
Apache  State  Bank  v.  Daniels,  40:  goi, 
121  Pac.  237,  32  Okla.  121.  (Annotated) 

23.  The  delivery  of  a  check  as  a  gift 
causa  mortis,  to  a  person  other  than  the 
donee,  but  for  his  use  and  benefit,  and  with 
instructions  to  deliver  the  same  to  the  donee, 
is  a  sufficient  delivery  to  pass  title,  though 
it  does  not  reach  the  hands  of  the  donee  un- 
til after  the  donor's  death.  Varley  v.  Sims, 
8:  828,  111'  N.  W.  269,  100  Minn.  331. 
Retention  by  donor. 

24.  A  gift  of  a  ring,  completed  by  deliv- 
ery and  acceptance,  is  not  affected  by  the 
fact  that  it  is  lent  by  the  recipient  to  the 
donor,  and  retained  in  his  possession  until 
his  death.  Garrison  v.  Union  Trust  Co. 
32:  219,  129  N.  W.  691,  164  Mich.  345. 

( Annotated ) 

25.  Where  a  donor  decides  to  give  to 
another  a  certificate  of  shares  in  a  build- 
ing and  loan  association,  and  to  make  the 
payments  thereon  for  the  donee  until  ma- 
turity, and  then  causes  such  certificate  to 
be  issued  in  the  name  of  the  donee,  re- 
taining possession  thereof  himself,  and 
makes  the  subsequent  payments  thereon  in 
the  name  of  the  donee,  but  at  all  times 
regards  the  certificate  as  the  property  of 
the  donee,  and  his  possession  as  holding  in 
trust  for  such  donee,  the  delivery  to  him- 
self as  trustee  of  the  donee  will  be  held 
sufficient  to  complete  the  gift.  Dewey  v. 
JBarnhouse,  29:  166,  109  Pac.  1081,  83  Kan. 
12.  (Annotated) 
Bank   deposit. 

Gift  of  bank  deposit,  generally,  see  supra, 
9,  11-18,  23. 

26.  A  delivery  sufficient  to  pass  title  to 
a  savings-bank  account  is  shown  by  the  de- 
livery to  one  having  possession  of  the  book 
as  bailee  for  the  owner  of  an  order  on  the 
bank  to  pay  the  account  to  him,  accom- 
panying a  parol  gift  of  it,  followed  by  a 
holding  of  the  book  by  the  donee  as  owner. 
Goodrich  v.  Rutland  Sav.  Bank,  17:  181,  69 
Atl.  651,  81  Vt.  147.  (Annotated) 

♦>» 


GIFT   ENTERPRISE. 

Giving  of  trading  stamps  by  merchants  as, 
see  Municipal  Corporations,  202,  203. 
Digest  1-52  L.R.A.(N.S.) 


Excluding  letter  concerning,  from  mails,  see 
POSTOFFICE,    7. 

See  also  Lottery. 


GIRLS. 

Prohibiting  interstate  transportation  of,  for 
immoral  purposes,  see  Commebce,  40, 
41. 


GLAin>ERS. 


Liability  of  lessee  placing  horse  afflicted 
with,  in  lessor's  barn,  see  Landlord 
AND  Tenant,  104. 


GOING  VALUE. 


As  item  in  fixing  telephone  rates,  see  Tele- 
phones, 17. 

Necessity  for  exact  ascertainment  of,  in 
condemnation  proceedings,  see  Eminent 
Domain,  168,  169. 

As  item  in  fixing  gas  rates,  see  Gas,  48-52. 


GOLD. 

Mining  of,  as  public  purpose  authorizing 
condemnation  proceedings,  see  Eminent 
Domain,  82. 


GOOD  BEHAVIOR. 

Deduction  from  sentence  for,  see  Constitu- 
tional Law,  97;  Criminal  Law,  261- 
264. 

Evidence  of  good  behavior  of  prosecutrix  on 
trial  for  incest,  see  Evidence,  1576. 


GOOD  FAITH. 


Prejudicial  error  in  admission  of  evidence 

as  to,  see  Appeal  and  Error,  1238. 
Of  broker  in  receiving  from  bank  teller,  for 

purposes  of  speculation,  money  of  bank, 

see  Assumpsit,  19. 
Of  conductor  in  ejecting  passenger,  see  Car- 
riers, 409,  410. 
As  defense  against  liability  of  stockholder, 

see  Corporations,  355. 
Presumption  and  burden  of  proof  as  to,  see 

Evidence,  II.  e,  7,  258,  274-281. 
Evidence  as  to  generally,  see  Evidence,  XI. 

e. 
Evidence  of,  in  mitigation  of  damages,  see 

Evidence,  2013. 
Sufficiency    of    evidence    of,    see    Evidence, 

XIL  c,  2081-2086,  2099. 
In  retreat  as  necessary  to  self-defense,  see 

Homicide,  100. 


GOOD  MERCHANTABLE— GOOD  WILL,  III, 


1353 


Of  seller  of  intoxicating  liquors  in  viola- 
tion of  statute,  see  Intoxicating  Li- 
quors, 359. 

As  justification  for  procuring  breach  of  con- 
tract, see  Labor  Organizations,  10. 

Liability  for  larceny  of  one  taking  property 
in  good  faith,  see  Larceny,  14,  15. 

Of  master  in  employing  infant  under  age, 
see  Mastek  and  Servant,  154-156, 
173-176. 

Setting  out  facts  in  pleading  to  show,  see 
Pleading,  245,  249. 

Sufficiency  to  refute  imputation  of  negli- 
gence, see  Railroads,  119. 

Of  officers  making  illegal  search,  see  Search 
and  Seizure,  12. 

Question  for  jury  as  to,  see  Trial,  II.  c,  5. 


GOOD  MERCHANTABLE. 

Meaning  of  words  in  contract  of  sale,  see 
Sale,  76. 


GOOD   WILL. 


r.  In  general. 

II.  Effect  on  good  will  of  transfer  of 
business    or    dissolution    of   firm, 
1. 
III.  Effect  of  sale  or  transfer  of  good 
will,    2—10. 

Right  of  trustee  for  creditors  to  transfer, 
see  Assignments  for  Creditors,  4. 

Partial  failure  of  consideration  as  defense  to 
note  given  for,  see  Bills  and  Notes, 
218. 

Agreements  in  restraint  of  trade  on  sale  of, 
see  Contracts,  III.  e,  2. 

Implied  agreement  not  to  compete  with  pur- 
chaser of,  see  Contracts,  11. 

Consideration  for  sale  of,  see  Contracts, 
79. 

Sale  of  good  will  of  agency,  see  Contracts, 
70. 

Breach  of  covenant  conveying;  who  may 
maintain  action  for,  see  Covenants 
AND  Conditions,  90. 

Consideration  of,  in  determining  value  of 
public  utility  plant  for  purpose  of  fix- 
ing rates,  see  Gas,  46,  47 ;  Telephones, 
22, 

Right  of  successors  to  good  will  of  corpo- 
rations to  enjoin  use  of  name  by  other 
corporations,  see  Injunction,  392, 

Injunction  to  protect,  see  Injunction,  445. 

Rights  of  partners  as  to,  see  Justice  of 
THE  Peace,  3;  Partnership,  46,  53. 

Passing  of,  by  will,  see  Wills,  204. 

I.  In  general. 

(See  same  heading  in  Digest  L.R.A.   1-70.) 
Digest  1-52  L.iEl.A.(N.S.) 


//.  Effect  on  good  will  of  transfer  of 
business  or  dissolution  of  firm. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  Upon  the  sale  of  the  business  and 
stock  in  trade  of  a  partnership  dissolved  by 
death  of  one  partner,  to  a  corporation  or- 
ganized to  continue  the  business,  the  good 
will  of  the  business  passes  by  the  sale,  leav- 
ing nothing  to  be  accounted  for,  because  of 
it,  by  the  surviving  partner  to  the  repre- 
sentative of  the  decedent  in  addition  to  the 
amount  received  from  the  sale.  Didlake  v. 
Roden  Grocery  Co.  22:  907,  49  So.  384,  160 
Ala,  484. 

III.  Effect  of  sale  or  transfer  of  good 
will. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Effect  of  sale  of  good  will  of  corporation  on 
right  of  officers  and  stockholders  to  re- 
engage io  same  business,  see  Corpora- 
tions, 253. 

Presumption  of  foreign  law  as  to  sale  of, 
see  Evidence,  67, 

Assignment  of,  as  conferring  right  to  use 
tradename,  see  Tradename,  4. 

2.  If  one  who  sells  the  good  will  of  his 
dental  business  re-establishes  himself  in 
that  business  and  solicits  the  patronage  of 
his  old  patients,  the  purchasers  are  entitled 
to  such  money  damages  as  they  may  sus- 
tain from  such  breach  of  contract.  Foss  v. 
Roby,  10:  1200,  81  N.  E.  199,  195  Mass.  292. 

3.  One  selling  the  good  will  of  a  dental 
business  will  not  be  permitted  to  establish 
himself  in  the  same  business  in  the  same 
city,  and  solicit  the  patronage  of  his  former 
patients.  Foss  v.  Roby,  10:  1200,  81  N.  E. 
199,  195  Mass.  292. 

4.  One  selling  the  good  will  of  a  dental 
business  impliedly  undertakes  that  he  will 
not  thereafter  practise  his  profession  so  as 
to  injure  or  destroy  the  business  he  has 
sold.  Foss  V.  Roby,  10:  1200,  81  N.  E.  199, 
195  Mass.  292.  (Annotated) 

5.  A  sales  agent  located  in  a  commercial 
center,  who,  upon  surrendering  the  agency, 
sells  to  his  principal  the  good  will  of  the 
business,  cannot  derogate  from  his  grant  by 
engaging  in  a  competing  business  and  en- 
deavor to  sell  similar  goods  to  his  old  cus- 
tomers. Gordon  v.  Knott,  19:  762,  85  N.  E. 
184,  199  Mass.  173. 

6.  Even  though  one  selling  the  good  will 
of  a  business  cannot  be  restrained  from  en- 
gaging in  a  competing  business,  he  will  not 
be  permitted  to  solicit  orders  from  his  for- 
mer customers.  Gordon  v.  Knott,  19:  762, 
85  N.  E.  184,  199  Mass.  173.       (Annotated) 

7.  A  sale  by  a  copartnership  of  the  good 
will  of  an  established  business  in  connec- 
tion with  a  sale  of  the  business  binds  the 
members  thereof  individually  as  well  as  co- 


1354 


GOVERNMENT— GOVERNOR. 


partners.     South  worth  v.  Davison,   19:  769, 
118  N.   W.   363,   106  Minn.   119. 

(Annotated) 

8.  A  member  of  a  partnership  is  not, 
by  voluntarily  selling  its  good  will  for  a 
valuable  consideration,  estopped  from  deal- 
ing with  old  customers  of  the  partnership 
whose  patronage,  apart  from  that  of  the 
general  public,  he  does  not  solicit,  nor  with 
persons  mentioned  in  a  trade  list  which  had 
been  compiled  by  the  old  firm  and  abstract- 
ed by  him.  Von  Bremen  v.  MacMonnies, 
32:  293,  93  N.  E.  186,  200  N.  Y.  41. 

9.  A  member  of  a  partnership  who  vol- 
untarily conveys  the  good  will  of  the  busi- 
ness for  a  valuable  consideration  cannot, 
upon  establishing  a  competing  business, 
solicit  trade  from  old  customers  of  the  part- 
nership. Von  Bremen  v.  MacMonnies,  32: 
293,  93  N.  E.  186,  200  N.  Y.  41. 

10.  A  sale  of  good  will  by  members  of  a 
partnership  must  be  deemed  to  be  volun- 
tary, where  they  were  free  to  sell  or  not 
at  their  discretion,  although  it  occurred 
within  a  few  weeks  of  the  termination  of 
the  partnership  agreement,  to  avoid  liquida- 
tion. Von  Bremen  v.  MacMonnies,  32:  293, 
93  N.  E.  186,  200  N.  Y.  41. 


GOVERNMENT. 

Separation  of  powers  of,  see  Constitution- 
al Law,  I.  e. 

Guaranty  of  republican  form  of,  see  Consti- 
tutional Law,  II.  h. 


GOVERNMENTAL   CONTROI.. 

Of  carrier,  see  Carrikrs,  IV. 

Of    corporations    generally,    see    Cobpoea- 

TIONS,  I.  e. 
Over  public  service  corporations,  see  Public 

Sebvioe  Cobporations. 


GOVERNMENT  INSPECTION. 

EfTect  of,  on  master's  duty  to  inspect,  see 
Masteib  and  Sebvant,  446. 


GOVERNMENT  SURVEY. 

Bordering   on  water   courses,   see  Bounda- 
BIES,   18. 


GOVERNOR. 


Power  to  veto  appropriation  bill  after  ad- 
journment of  legislature,  see  Appropri- 
ations, 15. 

Duty  of  attorney  general  to  prosecute  liquor 
case  at  request  of,  see  Attorney  Gen- 
EEAL,   3. 

Digest  1-52  I..R.A.(N.S.) 


Review  of  action  of,  by  certiorari,  see  Cee- 
tiorari,  5. 

Proclamation  by,  as  to  proposed  constitu- 
tional amendment,  see  Constitutional 
Law,  6. 

Delegation  of  power  to,  see  Constitution- 
al Law,  72,  73. 

Empowering  governor  to  fix  date  of  execu- 
tion of  criminals,  see  Constitutional 
Law,  138. 

Interference  of  court  with,  see  Courts,  54- 
64. 

Right  to  set  aside  law  imposing  death  pen- 
alty for  crime,  see  Criminal  Law,  248. 

Power  to  pardon,  see  Criminal  Law,  264, 
279,  292-296. 

Power  to  revoke  pardon  issued  by  lieutenant 
governor,  see  Criminal  Law,  302. 

Conclusiveness,  in  habeas  corpus  proceeding, 
of  recitals  in  governor's  proclamation 
as  to  existence  of  insurrection,  see  Ha- 
beas Corpus,  18. 

Review  of  determination  of,  in  extradition 
proceedings,  see  Habeas  Corpus,  57- 
66. 

Injunction  against,  see  Injunction,  314. 

Right  to  order  seizure  by  militia  of  insur- 
rectionists, see  Insurrection,  2. 

Mandamus  to,  see  Mandamus,  31-36. 

Eligibility  to  office  of  governor,  see  Offi- 
cers, 15. 

Power  to  appoint  officer,  see  Officers,  21, 
22. 

Power  as  to  filling  vacancy  in  office,  see 
Officers,  27-35. 

Power  to  remove  officer,  see  Officers,  66. 

Power  to  exact  contract  as  condition  of 
signing  bill,  see  Officers,  80. 

Veto  of  bill  by,  see  Statutes,  12. 

1.  A  constitutional  provision  vesting 
the  supreme  executive  power  of  a  state  in 
the  governor  implies  that  the  governor  is 
the  highest  in  authority  in  the  executive 
department,  with  such  power  as  will  secure 
a  faithful  execution  of  the  laws  in  the 
manner  and  by  the  methods  prescribed  by 
the  Constitution  and  statutes.  State  ex  rel. 
Stubbs  V.  Dawson,  39:  993,  119  Pac.  360,  86 
Kan.  160. 

2.  The  duty  imposed  by  statute  upon 
the  governor  to  issue  a  certificate  of  elec- 
tion to  an  official  who  has  been  duly  de- 
clared elected  by  the  proper  authorities  is 
ministerial.  State  ex  rel.  Irvine  v.  Brooks, 
6:  750,  84  Pac.  488,  14  Wyo.  393. 

3.  Whore  it  appears  that  a  newspaper 
correspondent  lias  openly  charged  in  his 
paper  a  violation  of  the  liquor  laws  of  a 
state,  the  governor,  in  the  exercise  of  the 
power  of  his  office,  may  require  the  attorney 
general  to  proceed  to  examine  such  corre- 
spondent as  a  witness,  under  a  statute 
making  the  examination  of  witnesses  a  dis- 
tinct proceeding.  State  ex  rel.  Stubbs  v. 
Dawson,  39:  993,  119  Pac.  360,  86  Kan.  180. 

4.  The  governor  of  West  Virginia  has 
]  power    to    declare   a    state   of   war    in    any 

town,  city,  district,  or  county  of  the  stato. 
in  the  event  of  an  invasion  thereof  by  a 
hostile  military  force,  or  an  insurrection, 
rebellion,  or  riot  therein,  and  in  such  case. 


GRACE— GRAND  JURY,  L 


1355 


to  place  such  town,  city,  district,  or  county 
under  martial  law.  State  ex  rel.  Mays  v. 
Brown,  45:  gge,  77  S.  E.  243,  71  W.  Va.  519. 
5.  The  power  possessed  by  the  governor 
for  the  removal  of  an  officer  does  not  in- 
clude, or  have  incidental  thereto,  power 
forcibly  to  install  a  successor.  Ekern  v. 
McGovern,  46:  796,  142  N.  W.  595,  154  Wis. 
157. 


AwT  'v^ 


GRACE. 


(\i     'to    ♦'!' 


Including  days   of,   in   computing  interest, 
see  Usury,  31. 


GRADE.        ttp 


r,*    -rtf" 


Necessity  of  compensation  on  changing,  see 
Eminent  Domain,  226,  231,  276-283. 

Injuries  from  fixing  and  changing  street 
grade,  see  Highways,  128-140. 

Of  higliway,  negligence  as  to,  see  High- 
ways, 161-163. 


GRADE  CROSSING. 

Estoppel    of    municipality    to    require,    see 

Estoppel,  2. 
Vacation  of  portion  of  highway  in  order  to 

abolish,  see  Highways,  406. 
Joint    liability    for    injury    resulting    from 

abolition  of,  see  Joint  Cbeditoes  and 

Debtors,  12. 
Liability   for   maintaining,   see  Railboads, 

126. 


GRAFT. 

Charge  of,  as  libel,  see  Libel  and  Slander, 
71. 

1.  The  word  "graft,"  in  its  generally 
accepted  meaning  as  applied  to  individuals, 
public  officials,  or  corporations,  imputes  to 
the  person,  officer,  or  corporation  charged 
with  grafting,  dishonesty;  dishonest  gain 
by  reason  of  public  office  or  public  or  pri- 
vate position;  irregular  or  unlawful  means 
of  support;  the  use  of  the  office  or  position 
for  personal  gain  without  rendering  fair  or 
compensatory  service;  stealing;  swindling. 
State  v.  Sheridan,  15:  497,  93  Pac.  656,  14 
Idaho,  222. 


GRAIN. 

Grain  elevators,  see  Grain  Elevators. 

Storage  of,  see  Warehousemen. 

Combination  to  fix  rate  of  commission  for 
selling,  see  Monopoly  and  Combina- 
tions, 62,  63. 

Digest  1-52  Ii.R.A.(N.S.) 


GRAIN  ELEVATORS. 

Judicial  notice  that  grain  entering  Chicago 
may  be  switched  to,  see  Evidence,  38. 


GRAND  JURY. 


I.  In  general,   1—4:. 

II.  Number. 

III.  Summoning,  impaneling,  and  dis- 
charge. 

IV.  Qualifications  and  exemptions,  5, 
6. 

Presumption  arising  from  indictment  by, 
see  Bail  and  Recognizance,  14,  16. 

Statute  depriving  accused  of  right  to  indict- 
ment by  grand  jury,  see  Constitution- 
al Law,  36. 

Contempt  by  grand  juror,  see  Contempt,  11, 
35. 

Injunction  by  Federal  court  to  restrain  ac- 
tion by  grand  jury  under  state  statute, 
see  Courts,  286. 

Right  to  prosecute  without  indictment  or 
presentment  by,  see  Criminal  Law, 
IL  d. 

Failure  to  prove  absence  of  knowledge  by, 
of  material  facts  omitted  from  indict- 
ment, see  Criminal  Law,  67. 

Right  of  accused  to  inspection  of  minutes  of 
evidence  before,  see  Criminal  Law,  73, 
74. 

Production  of  bankrupt's  books  before  grand 
jury  as  infringing  privilege  against 
self-crimination,  see  Criminal  Law, 
118. 

Failure  of  record  to  show  that  grand  jury 
was  sworn,  see  Criminal  Law,  156. 

Burden  of  proving  absence  of  knowledge  of 
grand  jury  as  to  facts  omitted  from  in- 
dictment, see  Evidence,  94. 

Admissibility  of  statement  made  by  accused 
before,  see  Evidence,  1222,  1223. 

Disclosure  of  evidence  before,  see  Evidence, 
1280. 

Presence  of  unauthorized  person  in  grand 
jury  room,  see  Indictment,  etc.,  138- 
140. 

Special  attorney  to  represent  county  attor- 
ney before,  see  Indictment,  etc.,  138, 
140. 

Libel  by  charges  in  proceedings  before,  see 
Libel  and  Slander,  37,  142. 

Qualifications  of  commissioners  selecting, 
see  Officers,  8. 

Right  to  detain  for  use  before,  articles  of 
evidentiary  nature,  see  Search  and 
Seizure,  7,  8. 

Indorsing  names  of  witnesses  on  informa- 
tion or  indictment,  see  Witnesses,  20. 

Grand  juror  as  witness,  see  Witnesses,  130. 

J.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

1.  An  indictment  is  void  where  a  pri- 
vate   prosecuting    attorney,   not   summoned 


1356 


GRAND  JURY,  II.— GRATE. 


i 


in  the  case,  is  permitted  to  appear  before 
and  address  the  grand  jury  in  support  of 
the  accusation  upon  wliich  the  indictment 
is  founded.  Collier  v.  State,  45:  599,  61 
So.  689,  104  Miss.  602. 

2.  An  indictment  otherwise  regular  is 
not  vitiated  by  the  fact  that  the  foreman 
of  the  grand  jury  was  excused  on  account 
of  interest,  from  attendance  during  con- 
sideration of  the  facts  upon  which  it  was 
founded.  State  v.  Coulter,  44:  1142,  61  So. 
706,  104  Miss.  764.  (Annotated) 

3.  A  county  prosecuting  attorney  may 
be  present  in  the  grand  jury  room  to  give 
help  and  advice  to  the  jurors,  under  a  stat- 
ute providing  that  it  shall  be  his  duty  to 
represent  the  state  in  all  matters  coming 
before  the  grand  jury  of  his  county.  State 
v.  Coulter,  44:  1142,  61  So.  706,  104  Miss. 
764. 

Finding  second  indictment. 

4.  A  grand  jury  may  bring  in  a  second 
indictment  against  the  same  person  on  the 
same  state  of  facts,  upon  the  first  one  prov- 
ing defective,  under  a  statute  providing 
that  if  a  demurrer  is  sustained  to  an  in- 
dictment it  is  a  bar  to  another  prosecation 
for  the  same  offense  unless  the  court,  being 
of  opinion  that  the  objection  to  which  the 
demurrer  is  allowed  may  be  avoided  in  a 
new  indictment,  directs  the  case  to  be  sub- 
mitted to  the  same  or  another  grand  jury. 
Thompson  v.  United  States,  47:  206,  202 
Fed.  401,  120  C.  C.  A.  575. 

//.  Number. 

(See  same  heading  in  Digest  L.R.A.  1-70.) 

III.  Summoning,  impaneling,  and  dis- 
charge. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Testing  legality  of  drawing  by  prohibition, 
see  Pbohibition,  9. 

^    IV.  Qualificationa  and  exemptions. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Competency. 

Exercise  of  superintending  control  in  re- 
viewing decision  as  to  competency  of 
grand  juror,  see  Courts,  221. 

Order  quashing  indictment,  for  disqualifica- 
tion of  grand  juror,  see  Mandamus,  26. 

5.  The  presence  upon  the  grand  jury  of 
the  man  intended  by  the  jury  commission- 
ers is  shown  by  the  fact  that  although,  in 
placing  his  name  in  the  box.  an  initial  was 
misplaced,  and  the  statute  did  not  require 
hia  residence  to  be  designated  on  the  paper 
slip,  yet  they  substituted  for  the  residence 
of  the  man  bearing  the  name  so  written  on 
the  slip  that  of  the  one  who  served  on  the 
jury.  State  ex  rel.  McGovern  v.  Williams, 
20:  941,  116  N.  W.  22.J,  136  Wis.  1. 

6.  One  who  in  his  employment  as  a 
teacher,  but  with  no  intention  of  changing 
Digest  1-52  I^R.A.(N.S.) 


his  permanent  abode,  has  been  temporarily 
absent  with  his  family  from  the  parish  of 
his  residence,  in  which  he  has  voted  and  paid 
taxes,  and  to  which  he  has  returned,  is  not 
disqualified  from  serving  as  a  grand  juror 
therein.  State  v.  Wimbv.  12:  98,  43  So. 
984,  119  La.  139. 


GRAND  PARENTS. 

Right  of,  to  custody  of  infant,  see  INFANTS, 
34-36,  38,  41-43. 


GRAND    STAND. 


Duty  to  patrons  with  respect  to  safety  of, 

see  Amusements,  3,  4. 
Fall  of,  see  Evidence,  458;   Exhibitions; 

Municipal  Corporations,  401. 


GRANT. 

Presumption  of,  see  Adverse  Possession, 

67;  Evidence,  625-627. 
To  alien,  see  Aliens,  3,  4. 
Conditions  in  grant  by  state,  see  Covenants 

AND  Conditions,  26,  87. 
Extent  of  rights  under,  see  Easements,  73. 
Loss  of  easement  by,  see  Easements,  81, 

95-97. 
Loss  by  nonuser  of  easement  created  by,  see 

Easements,  93. 
Estoppel  by,  see  Estoppel,  II.  a. 
Admissibility    in    evidence,    see    Evidence, 

789. 
What  included  within,  see  Gift,  6. 
Right  of  private  citizen   to  sue   for   repeal 

of  grant  by  state,  see  Parties,  111. 
Of  public  lands,  see  Public  Lands. 
Question  for  jury  as  to  whether  particular 

parcel    of    land    was    included    in,    see 

Trial,  619. 
Of  land  under  water,  see  Waters,  I.  c,  4, 

d. 
Of  water  rights,  see  Waters,  II.  j. 
Exclusive  grant  of  right  to  take  water  from 

artesian  well,  see  Waters,  287,  288. 
See  also  Deeds. 

1.  Grants  by  implication  are  not  fa- 
vored. Muscogee  Mfg.  Co.  v.  Easjle  &  Phe- 
nix  Mills,  7:  1139,  54  S.  E.  1028,  126  Ga, 
210. 

2.  A  statute  vesting  absolute  title  in  a 
city  to  land  "heretofore"  held  by  it  in 
trust  or  otherwise  has  no  effect  upon  a  title 
claimed  under  an  unconstitutional  statute. 
Mobile  Docks  Co.  v.  Mobile.  3;  822,  40  So. 
205,    146   Ala.    198.  (Annotated) 


GRATE. 

In  sidewalk,  see  Highways,  307-309,  317- 
320,  344,  388a,  389. 


GRATUITOUS  SERVICE— GUARANTY. 


1357 


GRATUITOUS   SERVICE. 

Right  to  recover  compensation  for,  see  As- 
sumpsit, 3. 


See  Gift. 


GRATUITY. 


GRAVEL. 


Contract  by  one  leasing  right  to  take  gravel, 
to  protect  lateral  support  of  adjoining 
property,  see  Contbacts,  64. 


GRAVEL  PIT. 


Right    to    dower    in,    see    Damages,    308; 
DOWEB,  8. 


GRAVES. 


See  Cemetebies. 


GRAVE  YARD. 


See  Ckuetebies. 


GRAZING  FEE. 


As   interference  with   interstate   commerce, 
see  Commeece,  12,  16. 


GREAT  POXDS. 

Rights  in,  generally,  see  Waters,  I.  c,  3. 


GRIST  MILLS. 


Condemnation  of  dam  used  for  operation  of, 

see  Eminent  Domain,  22. 
Exercise  of  right  of  eminent  domain  by,  see 

Eminent  Domain,  22,  67-70. 


GROCERY. 


Condemnation  of  land  for  grocery  business, 

•   see  Eminent  Domain,  52. 
Digest  1-52  L.R.A.(N.S.) 


GROSS    EARNINGS. 

State  taxation  of  gross  earnings  of  inter- 
state express  company,  see  Commerce, 
145. 

Of  gas  company,  see  Gas,  33, 


GROSS  NEGLIGENCE. 

Leaving  switch  open  when  passenger  train 

expected  as,  see  Carriers,  214. 
Sufficiency  of  proof  of,  see  Evidence,  2145. 
Of   conductor   of  street  car,   see  Cabriebs, 

536. 
Of  telegraph  company,  see  Telegeaphs,  19, 

89. 
Of    railroad    company,   see    Railboads,    60, 

85,  86,  91,  96,  210. 
In  general,  see  Negligence,  24,  25,  120. 


GROUND    RENT. 


Stipulation  for,  in  lease,  see  Landlobd  and 
Tenant,  108. 


GROOVING  CROPS. 

Evidence  as  to  value  of,  see  Evidence,  1702. 
Evidence  as  to  damages  to,  see  Evidence, 

1739-1742. 
See  also  Crops. 


GUARANTY. 


7.  Yalidity ;  constt'uetion ;  effect,  1—23. 
II.  Revocation;   conditions;    discharge, 
24-30. 

Of  genuineness  of  signature  on  commercial 
paper,  see  Bills  and  Notes,  74. 

Of  fidelity  of  emplovees  or  corporate  offi- 
cer, see  Bonds,  II.  b. 

Of  maturity  of  loan  association  stock,  see 
BtuLDiNG  and  Loan  Associations,  5. 

Of  rijrht  to  life,  liberty,  and  property,  see 
Constitutional  Law,  II.  b. 

Of  freedom  of  speech,  press,  and  worship, 
see  Constitutional  Law,  II.  d. 

Of  payment  of  rent,  consideration  for,  see 
Contracts,  9h. 

Of    dividends,    see    Corporations,    296-299. 

Of  principal  and  interest  by  corporation  sell- 
ing mortgage,   see  Corporations,   329. 

Of  right  to  jury  trial,  see  Jury,  I. 

Of  payment  of  note  secured  by  mortgage  up- 
on premises  covered  by  tax  deed,  see 
Limitation  of  Actions,  90. 

Of  accuracy  of  survey,  see  Surveyors,  2. 

Against  loss  on  commercial  paper,  see 
Bonds,  1. 

By  bank,  see  Banks,  ]91-in.'i:  Corpora- 
tions, 91,  92;  Estoppel,  233. 

By  married  woman,  see  Conflict  of  Laws, 
60;  Husband  and  Wife,  41. 


1358 


GUARANTY,  I. 


By  property  owner  contracting  for  con- 
struction of  building,  of  sufficiency  of 
plans,  see  Contracts,  393-395. 

By  railroad  company,  of  dividends  on  bond 
for  constructing  summer  hotel,  see  COB- 
POBATIOXS,  61. 

Harmless  error  in  instruction  as  to,  see  Ap- 
peal AND  Ebror,  1317. 

Right  of  guarantor  to  benefit  of  provision 
for  attorneys'  fees,  see  Attorneys' 
Fees,  3.. 

Depositors'  guaranty  fund,  see  Banks,  7; 
Constitutional  Law,  282,  702,  776; 
Eminent  Domain,  56. 

Ratification  by  bank  of  guaranty  by  cashier, 
see  Banks,  42. 

Indorsement  on  note  in  form  of  guaranty, 
see  Bills  and  Notes,  71. 

Recovery  by  guarantor  of  note  from  ac- 
commodation makers,  see  Bills  and 
Notes,  72,  73. 

Statute  of  frauds  as  to,  see  Contracts,  I. 
e,  2. 

Plea  of  non  est  factum  in  action  on,  see 
Contracts,  125. 

Premature  breach  of  guaranty  contract,  see 
Contracts,  695. 

Power  of  corporation  to  act  as  guarantor, 
see  Corporations,  73,  91,  92. 

Liability  of  corporation  on  guaranty  by 
president  on  its  behalf,  see  Corpora- 
tions, 138. 

Estoppel  of  creditor  surrendering  guaranty 
through  mistake,  to  enforce  liability  of 
guarantor,  see  Estoppel,  181. 

Estoppel  to  deny  liability  on,  see  Estoppel, 
183,  233. 

Evidence  of  oral  guaranty,  see  Evidence, 
938. 

Oral  evidence  to  show  intention  of  guaran- 
tor, see  Evidence,  959. 

Rights  of  guarantor  for  price  of  goods  to 
be  shipped  f.  o.  b.  at  destination  where 
consignee  is  compelled  to  pay  freight, 
see  Evidence,  1522. 

Sufficiency  of  proof  in  action  on,  see  Evi- 
dence, 2277. 

Sufficiency  of  proof  as  to  wrongful  alter- 
ation of,  see  Evidence,  2286. 

Right  of  guarantor  paying  note  to  interest, 
see  Interest,  56. 

Assignment  of  lessor's  rights  under  lease  as 
carrying  guaranty  of  payment  of  rent, 
see  Landlord  and  Tenant,  89. 

Running  of  limitations  against  right  to  en- 
force, see  Limitation  of  Actions,  124. 

Signing  instrument   witlrout  reading  it  as 

,  proximate  cause  of  loss  to  one  who  ad- 
vances money  in  reliance  thereon,  see 
Proximate  Cause,  155. 

Subrogation  of  guarantor,  see  Subrogation, 
VI. 

Purchase  by  guarantor  of  mortgage  at  tax 
sale  of  mortgaged  premises,  see  Taxes, 
236,  237. 

Right  of  guarantor  of  debt  secured  by  mort- 
gage to  purchase  at  tax  sale,  see  Taxes, 
236,  237. 

Error  in  admission  of  evidence  in  action  on 
guaranty,  see  Trial,  28. 

Question  for  jurv  as  to  consent  to  alteration 
of,  see  Trial,  315. 

Digest  1-52  I..R.A.(N.S.) 


/.   Validity;   construction;   effect. 

(Hee  also   same   heading   in   Digest   L.R.A. 
1-10.) 

1.  A  contract  of  guaranty  whereby  the 
guarantor  agrees  that  a  note  is  perfectly 
good,  and  will  be  paid  by  the  maker  as  it 
becomes  due,  is  a  separate  obligation  of  the 
guarantor,  and  becomes  absolute  upon  the 
default  of  the  maker  of  sucti  note.  Frost 
V.  Harbert,  38:  875,  118  Pac.  1095,  20  Idaho, 
336. 

2.  The  mere  acceptance  of  a  contract 
guarantying  the  indebtedness  of  a  corpo- 
ration for  one  year  does  not  extinguish 
the  liability  of  the  makers  on  a  similar  in- 
strument executed  the  preceding  year. 
First  Nat.  Bank  v.  Story,  34:  154,  93  N. 
E.  940,  200  N.  Y.  346. 

3.  The  insolvency  of  the  principal  debt- 
or does  not  relieve  the  necessity  of  demand 
upon  persons  who  had  guaranteed  payment 
of  his  obligations  at  maturity  to  a  cer- 
tain amount,  with  a  promise  to  pay  upon 
demand  without  other  or  further  notice. 
First  Nat.  Bank  v.  Story,  34:  154,  93  N.  E. 
940,  200   N.   Y.   346.  (Annotated) 

4.  A  guarantee  may,  by  contract,  obli- 
gate himself  to  protect  the  guarantor  from 
loss,  either  by  efforts  to  preserve  collateral 
security  held  by  him,  or  by  the  use  of  dili- 
gence in  pursuing  the  principal  debtor. 
Merritt  v.  Haas,  21:  153,  118  N.  W.  1023, 
106  Minn.  275. 

5.  A  party  stipulating  to  guarantee 
against  the  default  of  0.  C.  S.  in  the  event 
credit  is  extended  to  him  in  a  certain 
amount  for  merchandise  to  be  furnished  him 
by  plaintiff  cannot  be  held  on  such  guaranty 
where  the  plaintiff  extended  credit  by  de- 
livering merchandise  to  the  S.  T.  Co.,  there 
being  aio  proof  that  O.  C.  S.  solely  comprised 
the  S.  T.  Co.  Lamm  v.  Colcord,  19:  901,  98 
Pac.  355,  22  Okla.  493.  (Annotated) 
What  constitutes. 

Of  payment  of  note  by  president  of  corpo- 
ration, see  Corporations,  166. 

6.  One  who  indorses  a  promissory 
note:  "For  value  received,  I  hereby  guar- 
antee the  payment  of  the  within  note  and 
hereby  waive  presentment,  demand,  pro- 
test, and  notice  of  protest,"  and  receives 
no  consideration  or  benefit  from  tlie  loan 
made  to  the  principal  debtor  upon  the  exe- 
cution of  the  note,  is  a  guarantor  of  pay- 
ment. Northern  State  Bank  v.  Bellamy, 
31:  149,  125  N.  W.  888,  19  N.  D.  509. 

7.  A  writing  addressed  by  T.  upon  be- 
half of  H.  to  G.  who  was  unwilling  to  sell 
goods  to  H.  upon  his  own  resporsibilfty, 
directing  G.  to  ship  H.  the  goods  "on  the 
next  trip  of  the  Tarpon.  Your  money  is 
good.  I  will  be  in  your  city  in  a  few  days," 
under  the  circumstances,  imports  a  guar- 
anty by  T.  of  the  debt  of  H.  Goldrintj  v. 
Thompson,  25:  418,  51  So.  46,  58  Fla.  248. 

8.  A  writing  addressed  by  T.  to  G. 
directing  him  to  "ship"  to  H.  certain  good>! 
"on  the  next  trip  of  the  Tarpon.  Your 
money  is  good.  I  will  be  in  j'our  city,  in 
a    few    days" — on    its    face    constitutes    an 


'GUARANTY,  I. 


1359 


original  undertaking  of  T.  to  pay  for  goods 
shipped  upon  faitli  of  the  order.  Goldring 
V.  'llionipson,  25:  418,  51  So.  46,  58  Fla.  24& 
9.  Ko  guaranty  of  payment  for  property 
shipped  is  etfected  by  a  reply  by  a  ware- 
houseman 10  a  letter  requesting  informa- 
tion about  a  broker,  that  he  considered  him 
reliable,  with  whom  samples  and  sales 
would  be  safe,  and  doubly  so,  since  all  ship- 
ments would  come  to  the  warehouse,  and 
payment  for  all  such  property  "would  be 
made  by  us  to  you  for  all  sales."  Hughes  v. 
Peper  Tobacco  Warehouse  Co.  i:  305,  51  S. 
E.  793,  139  N.  C.  158.  (Annotated) 

10.  The  implied  guaranty  of  the  ad- 
vances is  effected  by  a  letter  requesting  a 
bank  to  let  another  make  overdrafts  and 
accommodate  both  "him  and  me."  Miami 
County  Nat.  Bank  v.  Goldberg,  15:  1115, 
113  N.  W.  391,  133  Wis.  175.  (Annotated) 
Acceptance   and  notice   thereof. 

11.  Notice  of  acceptance  is  necessary  to 
consummate  the  liability  of  one  who  re- 
quests a  bank  to  let  another  make  over- 
drafts. Miami  County  Nat.  Bank  v.  Gold- 
berg, 15:  1115,  113  N.  W.  391,  133  Wis.  175. 

12.  A  contract,  although  absolute  in 
form,  guaranteeing  the  fulfilment  of  an 
agent's  contract,  made  without  considera- 
tion, in  the  absence  and  without  the  request 
of  the  obligee,  is  a  mere  ofier,  which  re- 
quires acceptance  to  be  binding.  William 
Deering  &  Co.  v.  Mortell,  16:  352,  110  N.  W. 
86,   21   S.   D.    159.  (Annotated) 

13.  Notification  of  acceptance  of  the 
guaranty  is  not  necessary  to  bind  persons 
who  sign  an  agreement  to  be  responsible  for 
the  faithful  performance  of  his  contract  by 
one  about  to  be  reappointed  as  salesman  for 
the  obligee  for  another  year,  since  ttie  guar- 
anty is  absolute,  and  not  conditional,  and 
it  is  immaterial  that  the  contract  has  not 
been  signed  by  either  employer  or  employee 
when  the  sureties  put  their  names  to  the 
guaranty  which  is  attached  to  it.  J.  R. 
Watkins  Medical  Co.  v.  Brand,  33:  960,  130 
S.  W.  867,  143  Ky.  46S.  (Annotated) 

14.  The  right  of  a  guarantor  at  the 
common  law  and  under  §  6080,  N.  Dak. 
Rev.  Codes  1905,  to  notice  that  his  proposal 
of  guaranty  is  accepted  and  will  be  acted 
upon,  is  waived  by  a  provision  in  the  con- 
tract "waiving  acceptance  and  all  notice," 
so  that  the  guarantors  are  rendered  liable 
on  the  contract  without  proof  of  notice 
to  them  of  the  acceptance,  where  it  is 
shown  that  the  contract  was  accepted  and 
goods  furnished  thereunder  to  the  prin- 
cipal. W.  T.  Rawleigh  Medical  Co.  v.  Laur- 
sen,  48:  198,  141  N.  W.  64,  25  N.  D.  63. 

(Annotated) 

15.  Notice  of  acceptance  is  necessary  to 
make  binding  a  written  guaranty  by  an 
employer  temporarily  in  a  foreign  country, 
of  payment  for  a  purchase  by  his  advertis- 
ing agent  of  an  article  for  the  agent's  per- 
sonal use,  which  states  that  upon  request 
of  the  agent  to  guarantee  a  bill  of  a  speci- 
fied amount,  "I  hereby  do  so,"  and  if  the 
bill  is  not  paid  within  a  specified  time,  "I 
will  pay  it."  Black  v.  Grabow,  52:  569, 
104  N.  E.  346,  216  Mass.  516. 

Digest  1-52  I<.R.A.(N.S.) 


16.  One  selling  goods  on  commission, 
who,  to  induce  acceptance  of  an  order  which 
had  been  rejected  because  of  bad  financial 
condition  of  the  purchaser,  writes  his  em- 
ployer to  ship  on  his  indorsement,  if  it  is 
worth  anything,  becomes  an  absolute  guar- 
antor of  the  account,  and  is  not  entitled  to 
notice  of  acceptance,  or  to  diligence  on  the 
part  of  the  principal  in  pursuing  the  pur- 
chaser. McCarroll  v.  lied  Diamond  Cloth- 
ing Co.  43:  475,  151  S.  W.  1012,  105  Aik. 
443, 

Nature,   extent,   and   duration   of  lia- 
bility. 

17.  One  who  signs  a  continuing  guaranty 
to  a  firm  of  a  customer's  running  account 
is  not  liable  for  credits  extended  after  the 
admission  of  a  new  member  into  the  firm, 
in  the  absence  of  anything  to  show  that 
the  change  in  the  firm  was  originally  con- 
templated by  the  guarantor.  Lyon  v.  Plum 
(N.  J.  Err.  &  App.)  14:  1231,  69  Atl.  209, 
75  N.  J.  L.  883.  (Annotated) 

18.  In  construing  a  written  guaranty  for 
the  purpose  of  determining  the  intention  of 
the  parties,  it  should  be  construed  most 
strongly  against  the  guarantor,  nnd  in  fa- 
vor of  the  party  parting  with  his  property 
upon  the  faith  of  the  interpretation  most 
favorable  to  his  rights.  Lamm  v.  Colcord, 
19:  901,  98  Pac.  355,  22  Okla.  493. 

19.  A  guarantor  is  entitled  to  the  ap- 
plication of  the  strict  rule  of  construction, 
and  cannot  be  held  beyond  the  precise  terms 
of  his  contract  after  the  meaning  of  the 
guaranty  has  been  ascertained  and  actual 
operation  thereunder  been  begun.  Lamm  v. 
Colcord,  19:  goi,  98  Pac.  355,  22  Okla.  493. 

20.  The  guarantee  in  a  contract  of  un- 
conditional guaranty  of  payment  is  under 
no  obligation,  as  a  matter  of  law,  to  pro- 
tect the  guarantor  from  loss,  either  in  ef- 
forts to  preserve  collateral  securities  held 
by  him,  or  in  pursuing  the  principal  debtor. 
Merritt  v.  Haas,  21:  153,  118  N.  W.  1023, 
106  Minn.  275. 

21.  The  liability  of  a  guarantor  of  pay- 
ment of  the  interest  to  mature  on  a  prom- 
issory note  ceases  at  the  maturity  of  the 
note.  Merritt  v.  Haas,  21:  153,  118  N.  W. 
1023,   106  Minn.  275.  (Annotated) 

22.  A  corporation  which  sells  mortgages 
under  a  guaranty  of  principal  and  interest 
cannot  insist  that  a  purchaser  shall  proceed 
in  the  first  instance  against  a  defaulting 
mortgagor  where  there  is  no  such  provision 
in  the  contract.  Flynn  v.  American  Bank- 
ing &  Trust  Co.  19:  428,  69  Atl.  771,  104  Me. 
141. 

Continuing  guaranty. 

23.  The  promise  to  be  responsible  for 
any  bill  that  a  certain  person  may  make  is 
a  continuing  guaranty,  and  not  limited  to 
the  purchase  made  at  the  time  it  is  first 
presented,  where  the  person  named  has  a 
running  account  with  the  one  to  whom  the 
paper  is  addressed,  who  refuses  further 
credit  unless  the  account  is  guaranteed. 
Newcomb  v.  Kloeblen  (N.  J.  Err.  &  App.) 
39:  724,  74  Atl.  511,  77  N.  J.  L.  791. 

^  . ,  ( Annotated ) 


1360 


GUARANTY,  II.— GUARDIAN  AND  WARD. 


//.  Revocation;   conditions;    discharge. 

(See  al.'so   same   heading   in  Digest   L.R.A. 
l-tO.) 

Discharge  in  general. 

24.  A  statute  discharging  a  person  sec- 
ondarily liable  on  an  instrument,  upon  re- 
lease of  the  principal  debtor,  does  not  apply 
in  favor  of  one  who  guarantees  the  pay- 
ment of  a  note,  since  he  is  not  secondarily 
liable  within  the  meaning  of  the  statute. 
Frost  V.  Harbert,  38:  875,  118  Pac.  1095,  20 
Idaho,  336. 

25.  Where  a  person  guarantees  the  pay- 
ment of  a  promissory  note,  and  there  is  de- 
fault in  the  payment  of  such  note  by  the 
principal  debtor,  and  by  reason  thereof  the 
contract  of  guaranty  becomes  absolute,  the 
guarantor  will  not  be  released  from  his  lia- 
bility as  such,  by  reason  of  an  agreement 
made  by  the  creditor,  the  principal  debtor, 
and  the  guarantor,  that  certain  personal 
property  covered  by  a  mortgage  securing 
the  note  be  sold  and  applied  on  the  note,  and 
that  the  original  debtor  be  released  from 
such  debt.  Frost  v.  Harbert,  38:  875,  118 
Pac    1095,  20  Idaho,  336.  (Annotated) 

26.  A  guarantor  of  payment  of  a  prom- 
issory note  is  "secondarily  liable"  thereon 
within  the  meaning  of  a  statute  providing 
that  a  person  secondarily  liable  upon  a 
negotiable  instrument  is  discharged  by  an 
extension  of  time  to  the  principal  debtor 
without  his  consent.  Northern  State  Bank 
v.  Bellamy,  31:  149,  125  N.  W.  888,  19  N. 
D.  509.  (Annotated) 

27.  A  guarantor  has  the  right  to  pre- 
scribe the  exact  terms  upon  which  he  will 
enter  into  a  guaranty  obligation,  and  to  in- 
sist upon  a  discharge  in  case  those  terms 
are  not  strictly  observed.  Lamm  v.  Colcord, 
19:  901,  98  Pac.  355,  22  Okla.  493. 

28.  One  guaranteeing  the  payment  for 
liunber  to  be  shipped  on  sixty  days'  credit, 
f.  o.  b.  at  destination,  is  released  from  his 
guaranty  upon  the  vendor's  compelling  the 
purchaser  to  pay  the  freight  before  secur- 
ing possession  of  the  lumber,  although  tho 
amount  of  the  payment  is  credited  on  the 
bill,  where  the  purchaser  is  a  contractor 
dependent  upon  completion  of  his  jobs  for 
the  money  with  which  to  pay  for  the  lum- 
ber. Chandler  Lumber  Co.  v.  Radke,  22: 
713,  118  N.  W.  185,  136  Wis.  495. 

(Annotated) 

29.  One  who  contracts  as  surety  for  the 
payment  of  the  rent  of  property  leased  for 
saloon  purposes  cannot  avoid  liability  upon 
expiration  of  the  right  to  use  the  property 
for  the  sale  of  intoxicating  liquors,  where 
there  is  no  provision  or  condition  in  his 
contract  terminating  his  liability  in  such 
case.  Hecht  v.  Acme  Coal  Co.  34:  773,  113 
Pac.  788,  117  Pac.  132,  19  Wyo.  18. 
Notice   of  defanlt. 

30.  One  who  guarantees  another's  ac- 
count is  not  entitled  to  notice  of  the  latter's 
default,  before  steps  are  taken  to  hold  him 
liable  on  his  guaranty.  Newcomb  v.  Kloeb- 
len  (N.  J.  Err.  &  App.)  39:  724,  74  Atl. 
511,  77  N.J.  L.  791. 

Digest  1-52  L.R.A.(N.S.) 


GUARANTY  INSURANCE. 

Guaranty  of  fidelity  of  employee  or  corpo- 
rate officers,  see  Bonds,  II.  b. 
In  general,  see  Insurance,  VIII. 


GUARDIAN  AD  LITEM. 

Right  to  appeal  case  to  court  of  last  re- 
sort, see  APPEI&.L  AND  Ebbor,  87. 

Authority  of  attorney  for,  see  Aitob-\eys, 
42. 

For  insane  person,  see  Incompeient  Per- 
sons, v. 

Appointment  of,  to  prosecute  suit  to  set 
aside  judgment,  see  Judgment,  397. 

Mandamus  to  compel  appointment  of,  see 
Mandamus,  22. 

Improper  appointment  of,  in  action  by 
widow  and  children,  see  Trial,  698. 

In  general,  see  Infants,  III. 


GUARDIAN  AND  ViTARD. 

/.  Appointment ;  removal;  discharge, 
1-6. 
II.  Powers,    rights,    duties,    and    lia- 
bilities of  guardian,    7—21. 
III.  Bonds  and   liability   thereon,   22— 

27. 
IV.  Rights   of  ward,   28,   29. 

Finality  of  decree  awarding  suit  money  and 
alimony  against  guardian  of  defendant 
in  divorce  suit,  see  Appeal  and  Ebbor, 
25. 

Effect  of  erroneous  method  of  computing  in- 
terest on  money  in  hands  of  guardian, 
see  Appeal  and  Error,  519. 

Bank's  notice  of  ward's  rights  in  certificate 
of  deposit,  see  Banks,  68. 

Bank's  duty  to  see  to  proper  application  of 
ward's  money,  see  Banks,  77. 

Liability  of  bank  for  cashing  certificate  of 
deposit  payable  to  guardian  to  one  not 
in  fact  guardian,  see  Banks,  149,  150. 

Subjecting  delinquent  child  to  guardianship, 
see  Constitutional  Law,  357,  358; 
Jury,  10. 

Corporate  liability  for  treasurer's  fraudu- 
lent conduct  as  guardian,  see  Corpo- 
rations, 113,  114. 

Retaining  bill  seeking  custody  of  children 
as  a  petition  for  appointment  of  guar- 
dian for  them,  see  Equity,  126. 

Presumption  of  siving  notice  to  ward,  see 
Evidence,  507. 

Evidence  of  guardian's  custom  as  to  with- 
drawing money  from  ward's  bank  ac- 
count, see  Evidence,  1G08. 

Fraud  of  employers'  liability  insurer  in  in- 
ducing guardian  to  bring  action  for 
nominal  sum,  see  Fraud  and  Deceit, 
14. 

Garnishment  of  guardian,  see  Garnish- 
ment, 2. 

Suit  by  infant  to  recover  trust  moneys  from 
guardian,  see  Husband  and  Wife,  195. 


GUARDIAN  AND  WARD,  I.,  II. 


1361 


Guardian  of  incompetent  person,  see  In- 
competent Persons. 

As  to  guardian  ad  litem,  see  Infants,  III. 

Affirmance  by  guardian  of  contract  of  in- 
fant, see  Infants,  73. 

Effect  of  guardian's  interest  in  sale  of  in- 
fant's land,  see  Infants,  100;  Judg- 
ment, 15. 

Adult  leader  of  band  composed  partly  of 
infants  as  their  guardian,  see  Intoxi- 
cating Liquors,  39. 

Conclusiveness  as  against  sureties  on  guar- 
dian's bond  of  decree  against  principal, 
see  Judgment,  252. 

Bar  of  right  of  infant  to  recover  against 
guardian,  see  Limitation  of  Actions, 
106. 

Subrogation  of  one  advancing  money  to  pay 
encumbrance  on  ward's  property,  see 
Subrogation,  16. 

Subrogation  of  surety  on  guardian's  bond, 
see  Subrogation,  35. 

Collateral  issue  on  guardian's  motion  to  set 
aside  order  for  alimony  against  him,  see 
Trial,  2. 

Competency  of  guardian  as  witness,  see 
Witnesses,  55,  64. 

I.  Appointment;     removal;     discharge, 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Evidence  in  contest  for  guardianship  of 
child,  see  Evidence,  767,  1952. 

Evidence  in  proceedings  to  appoint  guar- 
dian, see  Evidence,  2041,  2042. 

Opinion  evidence  as  to  qualification  to  act 
as  guardian,  see  Evidence,  1060. 

For  insane  person,  see  Incompetent  Per- 
sons, VI. 

Desire  of  elderly  person  to  marry  as  ground 
for  appointment  of  guardian,  see  In- 
competent Persons,  2. 

Effect  of  appointment  of  guardian  on  par- 
ent's right  to  custody  of  children,  see 
Infants.  29. 

Right  of  testamentary  guardian  illegally 
appointed  to  hold  property  as  trustee, 
see  Trusts,  73. 

1.  The  administrator  of  the  parents'  es- 
tate cannot  claim  the  right  to  exercise  the 
rights  of  guardian  for  a  minor  child  after 
the  appointment  of  a  guardian  for  it  under 
a  statute  providing  that  he  shall  fulfil  the 
duties  of  guardian  to  such  infant,  but  shall 
not  be  bound  to  discharge  the  duties  of 
guardian  after  a  guardian  shall  be  ap- 
pointed. Sudler  v.  Sudler,  49:  860,  88  Atl. 
26,  121   Md.  46. 

2.  An  item  of  a  will  in  the  following 
language,  "I  hereby  appoint  my  father,  C. 
N.  Churchill,  guardian  of  my  child,  to  hold, 
control,  and  manage  the  property  given  her 
during  her  minority;  and  he  shall  not  be 
required  to  give  bond  or  security  for  the 
performance  of  such  trust,"  appoints  C.  N.  1 
Churchill  the  testamentary  guardian  of  the 


Right   to   appoint. 

3.  Although  a  father  cannot,  under  the 
statute,  appoint  a  general  guardian  for  his 
children  to  the  exclusion  of  the  rights  of 
the  surviving  mother,  a  provision  in  his  will 
that  all  funds  belonging  to  the  children 
shall  be  received  and  paid  out  ^  by  certain 
persons  named  by  him  as  guardians  jointly 
during  the  minority  of  the  children  will  be 
enforced  as  creating  a  valid  power  in  trust. 
Kellogg  V.  Burdick,  13:  288,  80  N.  E.  207, 
187  N.  Y.   355.  (Annotated) 

4.  That  a  widow  has  embraced  the 
Mazdaznan  religion,  and  permits  her 
twelve-year  old  boy  to  travel  with  one  of 
its  teachers,  who  has  written  an  improper 
book,  does  not  show  that  the  child  is  de- 
pendent and  neglected,  without  proper  care, 
so  as  to  justify  the  appointment  of  a  guard- 
ian for  him.  Lindsay  v.  Lindsay,  45:  908, 
100  N.  E.  892,  257  111.  328. 
Jurisdiction  to  appoint. 

5.  A  statute  conferring  jurisdiction  up- 
on the  orphan  courts  of  the  county  of  resi- 
dence to  appoint  a  guardian  for  a  minor 
means  the  county  of  domicil.  Sudler  v. 
Sudler,  49:  860,  88  Atl.  26,  121  Md.  46. 

6.  The  domicil  of  a  child  of  tender 
years,  who,  after  its  parents  had  died  in 
one  county,  was  taken  into  the  custody  of 
the  maternal  grandfather  and  removed  to 
another  county  and  such  custody  sustained 
upon  a  habeas  corpus  proceeding,  is  the  lat- 
ter county  for  the  purpose  of  conferring 
jurisdiction  for  the  appointment  of  a  guard- 
ian. Churchill  v.  Jackson,  49:  875,  64  S.  E. 
691,  132  Ga.  666.  (Annotated) 


//.  Powers,     rights,     duties,    and 
hilities  of  guardian. 


lia- 


(8ee  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  of  ward  to  maintain  action  at  law 
against  guardian  for  guardianship 
funds  before  settlement  of  account,  see 
Assumpsit,  20. 

Public  policy  as  affecting  contract  by  guar- 
dian, see  Contracts,  456. 

Testamentary  trustee  for  minor  children, 
see  Trusts,  73,  84. 

7.  Neither  a  guardian  nor  her  surety 
is  entitled  to  credit  for  lodging  furnished 
and  personal  services  rehdered  to  the  ward, 
where  she  voluntarily  stood  in  loco  parentis 
to  him,  and  never  intended  to  charge  for 
the  lodging  or  services.  Abrams  v.  United 
States  Fidelity  &  G.  Co.  5:  575,  106  N.  W. 
1091,  127  Wis.  579. 

Povrers  generally. 

Of  incompetent  person,  see  Incompetent 
Persons. 

To  agree  for  lien  on  ward's  land,  see  Me- 
chanics' Lien,  9. 

To  maintain  action  in  his  own  name,  see 
Pleading,  45. 

8.  A  guardian  has  no   power,   without 


propertv  onlv.  and  not  the  person,  of  the  I  express  authority  from  the  court,  to  agree 
child  referred  to.  Churchill  v.  Jackson,  49:  |  that  one  advancing  money  to  a  lessee  of 
875,  64  S.  E.  691,  132  Ga.  666.  his  ward's  premises,   for   the   erection  of  a 

Digest  1-52  l!r.A.(N.S.)  86 


1362 


GUARDIAN  AND  WARD,  III. 


building  thereon,  shall   have  a  lien   on   the 
improvement.     Hughes  v.  Kershow,  15:  723, 

93  Pac.  IIIG,  42  Colo.  210. 

0.  A  guardian  securing  a  loan  for  the 
benefit  of  his  ward  upon  a  paid-up  life  in- 
surance policy  in  his  favor  may  agree  to 
waive  notice  and  demand  for  repayment, 
so  that  the  policy  may  be  canceled  in  ac- 
cordance with  its  terms,  without  notice,  in 
case  of  default  in  repayment.  Clare  v.  Mu- 
tual L.  Ins.  Co.  35:  1123,  94  N.  E.  1075,  201 
N.  Y.  492. 

10.  A  ward  cannot  enforce  payment  of 
a  paid-up  life  insurance  policy  in  his  favor, 
where  his  guardian,  to  procure  funds  for 
his  education,  secured  a  loan  upon  it  to  the 
amount  of  its  cash  surrender  value,  and 
permitted  it  to  be  canceled,  under  the  terms 
of  the  contract,  for  failure  to  repay  the 
loan.     Clare  v.  Mutual  L.  Ins.  Co.  35:  1123, 

94  N.  E.  1075,  201  N.  Y.  492.       (Annotated) 

11.  A  father  made  by  statute  natural 
guardian  of  his  child,  without  defining  his 
powers,  has  no  power  to  consent  to  the 
surrender  of  life  insurance  which  has  been 
taken  out  for  the  benefit  of  the  ward.  Fer- 
guson v.  Phoenix  Mut.  L.  Ins.  Co.  35:  844, 
79  Atl.  997,  84  Vt.  350. 

Poxirer  to  sell,  lease,  or  mortgage  land. 

Effect  of  guardian's  interest  in  sale  of  in- 
fant's land,  see  Infants,  100;  Judg- 
ment, 15. 

12.  A  lease  granting  oil  and  gas  mining 
privileges  for  a  term  of  years  is  not  a  "sale 
of  realty"  as  contemplated  by  §  5314,  Okla. 
Comp.  Laws,  1909.  Duff  v.  Keaton,  42:  472, 
124  Pac.  291,  33  Okla.  92. 

13.  A  lease  granting  oil  and  gas  mining 
privileges-  fer  a  term  of  years  made  by  the 
guardian  of  a  minor,  permission  of  the  court 
having  first  been  obtained  thereto,  and  such 
lease  having  been  approved  and  confirmed 
by  the  court,  though  without  the  prelim- 
inary notices  essential  for  the  order  of  sale 
and  confirmation  of  the  same  in  case  of  the 
sale  of  real  estate  of  minors  by  guardians, 
is  valid  against  a  collateral  attack.  Duff 
v.  Keaton,  42:  472,  124  Pac.  291,  33  Okla.  92. 

14.  A  sale  of  a  minor's  land  for  his 
maintenance  and  education  is  not  within 
the  provisions  of  a  statute  requiring  the 
guardian  to  give  bond  upon  sale  of  it  for 
investment.  Tobin  v.  8pann,  16:  672,  109 
S.  W.  534,  85  Ark.  556. 

15.  A  license  from  the  probate  court  is 
not  necessary  to  enable  a  guardian  to  trans- 
fer property  of  his  ward  under  a  statut? 
which  merely  provides  that  such  transfer 
may  be  authorized  upon  application  by  the 
guardian.  Gardner  v  Beacon  Trust  Co. 
2:  767,  76  N.  E.  455,  190  Mass.  27. 
Liability. 

For  interest,  see  Interest,  32-34. 

{Enforcement  of  judgment  for  alimony 
against  defendant's  guardian,  see  Judg- 
ment, 27,  320. 

Delay  as  bar  to  action  to  enforce  guardian's 
liability,  see  Limitation  of  Actions, 
58. 

16.  A  guardian  is  liable  for  funds  of 
the  ward,  turnod  over  to  her  attorney  for 
investment  and  lost  through  his  dishonesty. 
Digest  1-52   L.R.A.(N.S.) 


Abrams  v.  United  States  Fidelity  &  G.  Co. 
5:575,  106  N.  W.  1091,  127  Wis.  579. 

( Annotated ) 

17.  The  duty  of  a  guardian  with  respect 
to  money  collected  as  part  of  the  ward's 
estate  commences  when  the  draft  for  the 
fund  comes  to  his  hands.  Abrams  v.  United 
States  Fidelity  &  G.  Co.  5:  575,  106  N.  W. 
1091,  127  Wis.  579. 

18.  A  court  order  permitting  a  guardian 
to  deposit  his  ward's  funds  in  bank,  se- 
cured without  the  notice  to  persons  inter- 
ested required  by  statute,  does  not  protect 
him  from  liability  in  case  the  funds  are  lost 
through  failure  of  the  bank.  Corcoran  v. 
Kostrometinotf,  21:  399,  164  Fed.  685,  91 
C.  G.  A.  619. 

19.  A  guardian  is  liable  for  loss  of  the 
funds  of  his  ward  deposited  without  fraud, 
for  a  definite  time,  on  a  certificate  of  de- 
posit, in  a  bank  which  subsequently  fails, 
where  he  might  have  invested  the  money 
where  it  would  have  been  safe.  Corcoran  v. 
Kostrometinoff,  21:  399,  164  Fed.  685,  91  C. 
C.  A.  619.  (Annotated) 

20.  A  guardian  who  permits  his  surety 
to  have  control  over  his  ward's  deposit  ac- 
count, by  requiring  all  checks  to  be  coun- 
tersigned by  the  surety  before  they  will  be 
honored,  is  liable  for  loss  of  the  funds 
through  failure  of  the  bank,  whether  or  not 
the  arrangement  with  the  surety  was  the 
cause  of  tlie  loss.  Re  Wood,  36:  252,  114 
Pac.  992,  159  Cal.  466. 

21.  The  approval  by  the  court  of  annual 
reports  of  a  guardian  is  no  bar  to  an  action 
by  the  ward  to  hold  him  liable  for  depre- 
ciation in  the  value  of  the  investments  be- 
cause they  were  not  of  a  character  in  which 
he  was  allowed  to  invest  the  funds.  Indiana 
Trust  Co.  V.  Griffith,  44:  896,  95  N.  E.  573, 
176  Ind.  643. 

III.  Bonds  and  liability  thereon. 

(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 

Agreement  by  surety  with  guardian  as  to 

mode  of  withdrawing  funds  from  bank, 

sec  Evidence,  1526,  1622. 
Sufficiency    of    evidence    to    sustain   verdict 

against  surety  on  guardian's  bond,  see 

Evidence,  2287. 
Delay   as    bar   to   suit   to   enforce   liability 

under  guardian's  bond,  see  Limitation 

OF  Actions,  58. 
Complaint  in   action   on  bond  of  guardian, 

see  Pleadinu,  175. 

22.  A  surety  on  a  guardian's  bond,  who, 
after  the  death  of  the  guardian,  pays  to 
his  successor  the  amount  of  dividends  re- 
ceived by  the  guardian  from  the  assets  of 
an  insolvent  bank  in  which  the  ward's 
funds  were  deposited,  which  dividends  the 
guardian  died  without  accounting  for,  is 
not  entitled  to  reinbursement  from  the  re- 
maining assets  of  the  bank  in  the  hands 
of  the  receiver,  although  the  latter  took 
from  the  guardian  the  certificate  of  deposit, 
which  had  been  made  payable  to  the  order 


GUARDIAN  AND  WARD,   IV.— GULCH. 


1363 


of  the  surety,  and  was  retained  by  the 
guardian  under  an  agreement  that  the  fund 
should  not  be  withdrawn  e.xcept  upon  tho 
joint  check  or  ind-orsemeiit  of  the  guardian 
and  surety,  which  arrangement  was  stated 
to  the  bank  olhcers.  Fidelity  &  D.  Co.  v. 
Butler,  i6:  994,  60  S.  E.  851,  130  Ga.  225. 

23.  Sureties  on  the  bond  of  a  guardian, 
executed  after  he  has  converted  property  of 
his  ward  to  his  own  use,  are  liable  for  the 
defalcation  if,  after  the  bond  is  executed,  he 
continues  solvent,  so  that  he  could  have  re- 
stored the  funds  to  the  trust,  which  he 
failed  to  do.  ^Etna  Indemnity  Co.  v.  State 
use  of  Gallaspy,  39:  961,  57  So.  980,  101 
Miss.  703.  (Annotated) 

24.  The  sureties  on  a  general  bond  of  a 
guardian  are  liable  for  failure  of  such 
guardian  to  pay  over  all  funds  that  come 
into  his  hands  as  such  guardian,  including 
funds  received  from  the  sale  of  real  estate; 
and  such  sureties  are  not  relieved  from  this 
liability  by  the  fact  that  a  special  "sale 
bond"  was  required  in  the  proceedings  for 
the  sale  of  the  real  estate.  Southern  Surety 
Co.  V.  Burney,  43:  308,  126  Pac.  748,  34 
Okla.  552.  (Annotated) 
Necessity  of  bond. 

25.  Where  by  statute  a  natural  guard- 
ian of  an  infant  is  required  to  give  bond, 
a  next  of  kin  who  has  filed  no  bond  cannot, 
upon  death  of  the  father  and  mother,  change 
the  domicil  of  the  infant.  Sudler  v.  Sad- 
ler, 49:  860,  88  Atl.  26,  121  Md.  46. 
Liability  of  sureties  on  second  bond. 

26.  Sureties  on  a  guardian's  bond  are 
not  relieved  from  liability  for  an  existing 
defalcation  by  an  order,  upon  their  petition 
for  the  execution  of  a  new  bond  by  the 
guardian,  that  a  new  bond  be  recorded,  and 
that  the  petitioning  sureties  be  relieved 
from  furth(  r  liability  on  the  bond,  ^tna 
Indemnity  Co.  v.  State  use  of  Gallaspy, 
39:  061,  57  So.  980,  101   Miss.  703. 

27.  The  sureties  for  a  guardian  on  a 
substitute  bond  for  a  former  general  bond 
are  liable  for  the  failure  to  pay  over  the 
moneys  adjudged  to  be  due  from  such 
guardian,  and  it  is  immaterial  when  the 
conversion  or  misappropriation  by  such 
guardian  took  place.  Southern  Surety  Co. 
V.  Burney,  43:  308,  126  Pac.  748,  34  Okla. 
552. 

IV.  Rights  of  ward. 

28.  An  infant's  guardian,  by  giving 
receipt  for  money  not  received  by  him,  but 
purporting  to  have  been  received  in  sat- 
isfaction of  the  ward's  interest  in  his  an- 
cestor's homestead,  in  proceedings  prose- 
cuted under  an  unconstitutional  statute 
providing  that  the  surviving  spouse  may 
elect  to  retain  a  homestead  worth  more 
than  $1,000  after  deducjting  encumbrances, 
by  payment  to  the  heirs  of  the  proportion- 
ate share  descending  to  them,  will  not  es- 
top the  ward  from  subsequently  asserting 
his  estate  in  the  homestead.  Draper  v. 
Clayton,  29:  153,  127  N.  W.  369,  87  Neb. 
443. 

29.  An  infant  whose  father  attempts  to 
surrender,  as  his  guardian,  a  policy  of  in- 
Digest  1-52  I,.R.A.(N.S.) 


surance  on  his  own  life  in  which  the  infant 
is  named  as  beneficiary,  does  not  ratify 
the  act  by  mere  failure  to  give  notice  of 
disaffirmance  within  a  reasonable  time  aft- 
er attaining  his  majority.  Ferguson  v. 
Phoenix  Mut.  L.  Ins.  Co.  35:  844,  79  Atl. 
997,  84  Vt.  350. 


GUARDS. 

On  dangerous  machinery,  see  Charities, 
65;  Evidence,  1822,  2127,  2128;  Mast- 
er AND  Servant,  172,  343-363. 

Master's  duty  to  warn  employee  of  danger 
from  failure  to  guard  rails  charged 
with  electricity,  see  Master  and  Serv- 
ant,  227,   228. 

Assumption  of  risk  of  unguarded  machinery, 
see   Master  and   Servant,   522-530. 

Lack  of  guards  on  machinery  as  proximate 
cause  of  injury,  see  Proximate  Cause, 
143,  144. 


GUARD  WIRES. 


For  electric  wires,  see  Electricity,  29,  31, 
66-68. 


♦  *» 


GUESSING  CONTEST. 

See  Lottery,  5. 

♦  »♦ 

GUESTS. 

At  hotel,  see  Innkeepers. 
Who  are,  see  Innkeepers,  II. 
Of  tenant;  liability  for  injury  to,  see  Land- 
lord AND  Tenant,  III.  c,  3. 


GUIDE  BOOK. 


Consideration  for  contract  to  pay  expense 
of  publishing,  see  Contracts,   114. 


GUILT. 

Plea    of,    in    criminal    case,    see    Criminal 

Law,  149-153. 
Presumption  of,  see  Evidence,  II.  e,  8. 


GULCH. 

Municipal  liability  for  injury  by  sKding 
of  earth  into  gulch  crossing  street, 
see  Master  and  Servant,  1005,  1006. 


1864 


GUN— HABEAS  CORPUS,  I.  b. 


GUN. 

Assault  by  pointing,  see  Assault  and  Bat- 
TKRY,  10-13,  25,  37. 

Negligence  in  use  of,  see  Evidence,  1541; 
Negligence  42-44;  Trial,  124. 

Carrying  gun  as  element  of  forcible  de- 
tainer of  property,  see  Forcible  Entby 
AND  Detainer,  6. 

Homicide  by  one  negligently  handling  gun, 
see  Homicide,  8-11. 

Injury  by  spring  gun,  see  Negligence,  112. 

Pointing  of,  as  crime,  see  Pointing  Weap- 
on. 

Leaving  loaded  gun  where  boy  can  get  it 
as  proximate  cause  of  accident,  see 
Pboximate   Cause,   18. 


GUN  POWDER. 

Use  of,  in  blasting,  see  Blastino. 


GUTTER, 

Failure  to  guard  gutter  at  point  where  it 
passes  under  sidewalk,  see  Highways, 
226. 


GUY  WIRES. 


Negligence    in    maintenance    of,    see    Elso- 
tbicity,  29,  31,  66-68. 


GYPSUM. 

Taxation    of    gypsum    as    a    mineral,    see 
Taxes,  52. 


H 


HABEAS  CORPUS. 

I.  In  state  court,  1—72. 

a.  In  general,   1,  2. 

b.  Power  to  issue;  who  may  de- 

mand, 3—5. 

c.  Scope  of  writ;   questions  con- 

sidered;   right   to    discharge, 
6-66. 

d.  Procedure;  judgment,   67—72. 
II.  In  Federal  court,  73,  75. 

III.  In  English  courts,  76,  77. 

Expiration  of  term  of  imprisonment  pend- 
ing appeal  from  decision  in,  see  Ap- 
peal AND  Error,  393. 

As  proper  method  of  raising  question  of 
delay  in  prosecution,  see  Appeal  and 
Error,  491. 

Interference  with,  on  court's  discretion  as 
to  granting  bail,  see  Bail  and  Recog- 
nizance, 10. 

Effect  of  right  to  apply  for  writ  of,  on 
validity  of  statute  as  to  commitment 
of  insane  persons,  see  Constitutional 
Law,  601,  602. 

Jurisdiction  of  court  as  to,  see  COUBTS, 
17,  24,  218,  219. 

Forcibly  bringing  accused  into  jurisdiction 
under  writ  of,  see  Courts,  24. 

Original  jurisdiction  of  appellate  court  to 
issue,  see  Courts,  218,  219. 

Admissibility  in  evidence  of  exemplification 
of  record  in  habeas  corpus  proceeding, 
see  Evidence,  767. 

Injunction  against  further  prosecution  of 
persons  released  under  writ  of,  see  In- 
junction,   309. 

Disqualification   of  judge,   see  Judges,   15. 

To  obtain  discharge  of  person  imprisoned 
without  trial  by  jurv,  see  Jury,  26. 

Digest  1-52  L.R.A.(N.S.) 


Suspension  of,  during  period  when  martial 
law  prevails,   see   Martial  Law,   5. 

Eflfect  of  remedy  by,  on  right  to  prohibi- 
tion, see  Prohibition.  7. 

Failure  of  petition  for  release  of  convicts 
for  refusal  to  accept  tender  of  fine, 
see  Tender,  7. 

I.  In  state  court. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  A  writ  of  habeas  corpus  may  be  is- 
sued to  determine  the  legality  of  the  con- 
finement of  a  person  in  a  state  insane  asy- 
lum, without  first  compelling  a  resort  to  a 
statutory  proceeding  for  that  purpose, — at 
least  where  tliere  is  some  doubt  as  to  the 
effect  of  the  statute.  Byers  v.  Solier,  14: 
468,  93  Pac.  59,  16  Wyo.  232. 

2.  One  arrested  under  warrant  from  a 
magistrate,  the  facts  before  whom  did  not 
justify  an  inference  of  the  existence  of  prob- 
able cause  to  believe  that  the  crime  charged 
had  been  committed,  is  not  obliged  to  await 
an  examination  by  tlie  magistrate  before 
suing  out  a  writ  of  habeas  corpus  to  secure 
his  release.  People  ex  rel.  Perkins  v.  Moss, 
11:  528,  80  N.  E.  383,  187  N.  Y.  410. 

b.  Power  to  issue;  who  may  demand. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  of  foreign  corporation  to  apply  for 
writ  of,  see  (^obpobations,  448. 


HABEAS  CORPUS,  I.  c. 


J3G5 


3.  One  court  has  no  jurisdiction  to  re- 
lease on  habeas  corpus  a  prisoner  committed 
by  a  court  of  co-ordinate  jurisdiction  to 
custody  awaiting  execution  of  a  death  war- 
rant. Ex  parte  State  ex  rel.  Wilson,  lo: 
1 129,   43   So.   490,    150   Ala.   489. 

4.  The  Texas  court  of  criminal  appeals 
has  power  to  grant  writs  of  habeas  corpus 
whenever  a  person  is  held  in  custody  with- 
out lawful  authority.  Ex  parte  Gould,  31: 
835,  132  S.  W.  364,  60  Tex.  Grim.  Rep.  442. 

I  5.  One  who  has  been  admitted  to  bail 
after  an  indictment  has  been  found  against 
him  cannot,  by  voluntarily  procuring  his 
sureties  to  surrender  him  into  custody,  en- 
title himself  to  the  benefit  of  a  writ  of 
habeas  corpus  to  test  liis  right  to  a  dis- 
missal of  the  indictment,  because  the  con- 
stitutional requirement  of  a  speedy  trial 
has  been  violated.  Ex  parte  Ford,  35:  882, 
116  Pac.  757,  160  Cal.  334.        (Annotated) 

o.  Scope  of  writ;  questions  considered; 
right  to  discharge. 

(See  also   same   heading  in  Digest  L.R.A. 
1-10.) 

In  Federal  courts,  see  infra,  75. 

6.  The  writ  of  habeas  corpus  is  not  a 
writ  of  error,  nor  does  it,  except  when  per- 
verted, discharge  the  functions  of  a  writ 
of  error.  Re  Cica,  51:  373,  137  Pac.  598,  18 
N,  M.  452. 

7.  The  writ  of  habeas  corpus  is  not 
intended  for  the  correction  of  errors  or 
mere  irregularities,  and  cannot  be  substi- 
tuted for  an  appeal  or  writ  of  error.  Ex 
parte  Talley,  31:  805,  112  Pac.  36,  4  Okla. 
Crim.  Rep.  398. 

8.  Irregularities  occurring  at  the  trial 
and  errors  of  the  trial  court  in  its  procedure 
in  a  criminal  action,  are  not  reviewable  on 
liabeas  corpus.  State  ex  rel.  Temple  v. 
Barnes,  37:  114,  132  N.  W.  215,  22  N.  D. 
18. 

9.  Errors  or  irregularities  in  the  course 
of  the  proceedings  at  or  anterior  to  the 
trial,  which,  if  presented  to  an  appellate 
court  by  way  of  appeal  or  writ  of  error, 
must  necessarily  result  in  the  reversal  of 
the  judgment,  are  not  sufficient,  for  that 
reason,  as  grounds  for  the  release  of  a 
prisoner  upon  application  for  a  writ  of 
habeas  corpus.  Re  Cica,  51:  373,  137  Pac. 
698,   18  N.  M.  452. 

10.  Mere  errors  in  the  rejection  of  evi- 
dence in  extradition  proceedings  are  not 
subject  to  review  by  a  writ  of  habeas  cor- 
pus. Charlton  v.  Kelly,  46:  397,  33  Sup.  Ct. 
Rep.  945,  229  U.  S.  447,  57  L.  ed.  1274. 

11.  The  writ  of  "habeas  corpus"  adds 
nothing  to  the  guaranties  or  rights  vested 
by  law,  and  therefore  if,  upon  the  return 
of  such  a  writ,  it  appears  that,  under  some 
power  vested  by  the  Constitution  or  stat- 
ute, the  person  to  whom  the  writ  is  direct- 
ed has  the  applicant  under  arrest  or  im- 
prisoned under  power  and  authority  to 
detain  or  imprison  him,  the  applicant  can- 
Digest  1-52  Ii.R.A.(N.S.) 


not    be    discharged.      Ex    parte    Jones,    45: 
1030,  77   S.  E.   1029,  71  W.  Va.  567. 

12.  The  legal  existence  of  a  court  organ- 
ized and  created  under  color  of  law  cannot 
be  questioned  in  habeas  corpus  sued  out  by 
a  person  convicted  and  sentenced  to  impris- 
onment in  proceedings  had  before  it.  State 
ex  rel.  Bales  v.  Bailey,  19:  775,  118  N.  W. 
676,    106   Minn.    138. 

13.  The  fact  that  no  arraignment  is 
shown  in  the  record  of  the  court  in  which 
one  was  convicted  of  violation  of  an  ordi- 
nance is  not  sufficient  to  entitle  him  to  re- 
lease upon  habeas  corpus,  since  where  the 
record  is  silent  as  to  jurisdictional  facts, 
jurisdiction  is  presumed.  Re  Cica,  51:  373, 
137  Pac.  598,  18  N.  M.  452. 

14.  Where  a  petitioner  is  imprisoned 
under  a  judgment  of  conviction  for  crime, 
unless  the  court  was  without  jurisdiction 
to  render  the  particular  judgment,  and  the 
judgment  is  void  and  not  merely  voidable, 
relief  cannot  be  had  by  habeas  corpus,  how- 
ever numerous  and  gross  may  have  been 
the  errors  committed  during  the  trial  or  in 
the  proceedings  preliminary  thereto.  Ex 
parte  Talley,  31:  805,  112  Pac.  36,  4  Okla. 
Crim.  Rep.  398, 

15.  A  court  of  competent  jurisdiction 
within  the  meaning  of  a  statute  providing 
that  no  court  or  judge  shall  on  habeas 
corpus  inquire  into  the  legality  of  any  judg- 
ment or  process  of  a  court  of  competent 
jurisdiction  whereby  a  party  is  in  custody, 
is  one  having  power  at  the  time  of  acting 
to  do  the  particular  act,  and  therefore  such 
statute  does  not  preclude  the  discharge 
under  a  statute  requiring  release  from  ille- 
gal imprisonment  of  one  detained  by  virtue 
of  a  judgment  void  for  denial  of  a  consti- 
tutional right  to  change  of  venue.  Re  Jus- 
tus, 25:  483,  104  Pac.  933,  3  Okla.  Crim. 
Rep.   111. 

16.  The  invalidity  of  the  judgment  upon 
which  a  suit  in  which  defendant  is  arrested 
is  founded  cannot  be  tried  on  a  petition  for 
habeas  corpus  to  secure  his  release  from 
custody.  Re  Morton,  11:  1087,  81  N.  E.  869, 
196  Mass.  21. 

17.  The  court  has  power  to  inquire  upon 
habeas  corpus  into  the  validity  of  a  pardon 
under  which  the  petitioner  seeks  to  be  dis- 
charged from  the  penitentiary  where,  after 
the  delivery  of  the  pardon,  he  is  detained  in 
the  custody  of  the  warden  upon  an  order  of 
the  governor,  purporting  to  revoke  the  par- 
don. Re  Crump,  47:  1036,  135  Pac.  428,  10 
Okla.  Crim.  Rep.  133. 

18.  The  recitals  in  the  governor's  procla- 
mation establishing  martial  law  in  a  certain 
county  of  the  state,  that  a  state  of  insurrec- 
tion existed  there,  cannot  be  controverted 
in  a  habeas  corpus  proceeding  to  secure  the 
release  of  one  arrested  by  the  military  au- 
thorities. Re  Moyer,  12:  979,  85  Pac.  190, 
35  Colo.  159. 

19.  A  person  convicted  and  sentenced  at 
a  term  of  court,  held  by  a  judge  de  facto 
serving  in  a  new  district,  who  had  been  ap- 
pointed to  his  position  by  the  governor 
under  the  erroneous  belief  that  the  law  es- 
tablishing such  district  had  become  opera- 


1366 


HABEAS  CORPUS,  I.  c. 


tive,  will  not  be  discharged  on  habeas  cor- 
pus. State  ex  rel.  Brockmeier  v.  Ely,  14: 
638,  113  N.  W.  711,  16  N.  1).  569. 

20.  A  writ  of  habeas  corpus  will  lie  to 
secure  the  release  of  a  prisoner  who,  after 
having  been  discharged  by  a  court  for  want 
of  prosecution  within  the  time  fixed  by 
statute,  is  retained  in  custody  under  a  sec- 
ond indictment  for  the  same  offense.  Peo- 
ple ex  rel.  Nagel  v.  Heider,  11:  257,  80 
N.  E.  291,  225  HI.  347. 

21.  Habeas  corpus  will  lie  to  secure  the 
discharge  of  one  who,  having  been  released 
without  bail  upon  suspension  of  his  sen- 
tence for  crime,  is  recommitted  to  custody, 
since  the  sentence  containing  a  proviso  for 
suspension  is  void.  Re  Peterson,  33:  1067, 
113  Pac.  729,  19  Idaho,  433. 

22.  Habeas  corpus  will  lie  to  release 
from  custody  a  prisoner  whose  conviction 
and  sentence  was  rendered  absolutely  void 
by  the  wrongful  refusal  of  the  court  to 
grant  a  change  of  venue  upon  compliance 
by  the  accused  with  a  statute  which  enti- 
tled him  thereto  as  a  matter  of  right.  Re 
Justus,  25:  483,  104  Pac.  933,  3  Okla.  Crim. 
Rep.  111. 

23.  That  a  wrrong  has  been  committed 
against  a  prisoner  in  the  manner  or  method 
pursued  in  subjecting  his  person  to  the  ju- 
risdiction of  a  state  whose  laws  he  is 
charged  with  having  transgressed  consti- 
tutes no  legal  or  just  reason  why  he  should 
not  be  held  to  answer  the  charge  against 
him  when  brought  before  the  proper  tri- 
bunal. Re  Moyer,  12:  227,  85  Pac.  897,  12 
Idaho,  250.. 

24.  Habeas  corpus  will  not  lie  to  release 
from  custody  one  who  has  been  forcibly  ab- 
ducted from  another  state  and  brought  for 
trial  into  the  jurisdiction  of  a  tribunal  hav- 
ing jurisdiction  of  the  offense  charged.  Ex 
f)arte  Davis,  12:  225,  103  S.  W.  891,  51  Tex. 
Crim.  Rep.  608.  (Annotated) 

25.  Where  an  accused  charged  with  mur- 
der has  been  found  guilty  of  an  assault  with 
a  deadly  weapon,  the  supreme  court,  in 
holding  such  conviction  void  upon  a  writ 
of  habeas  corpus,  is  justified  in  refusing  to 
release  the  accused  until  the  county  attor- 
ney has  had  five  days  in  which  to  file  a  com- 
plaint before  an  examining  magistrate  for 
a  preliminary  examination,  charging  the  ac- 
cused with  the  crime  of  assault  with  a  dead- 
ly weapon.  Re  McLreod,  43:  813,  128  Pac. 
1106,  23  Idaho,  257. 
Conatitntienality  of  statute. 

26.  The  validity  of  a  statute  may  be 
tested  by  habeas  corpus  proceedings  to  re- 
lease from  custody  one  who  has  been  im- 
prisoned under  it.  Harper  v.  Galloway,  26: 
794,  61  So.  226,  58  Fla.  255. 

27.  Habeas  corpus  lies  to  release  from 
custody  one  arrested  under  an  unconstitu- 
tional statute.  Re  Harrison,  16:  950,  110 
S.  W.  709,  212  Mo.  88. 

28.  The  constitutionality  of  a  statute 
may  be  tested  by  habeas  corpus  proceedings 
to  release  from  custody  one  who  has  been 
imprisoned  under  it.  Ex  parte  HoUman, 
21:  242,  60  S.  E.  19,  79  S.  C.  9. 

29.  Whether  or  not  a  statute  imposing 
IDigest  1-52  I..R.A.(N.S.) 


a  license  tax  on  peddlers  of  certain  articles 
interferes  with  interstate  commerce  cannot 
be  determined  in  a  habeas  corpus  proceed- 
ing to  secure  release  from  custody  to  which 
one  is  committed  for  violation  of  tlie  stat- 
ute. State  ex  rel.  Norwood  v.  Byles,  37: 
774,  126  S.  W.  94,  93  Ark.  612. 
I<ack  of  jurisdiction. 
See  also  supra,  13,  14. 

30,  31.  The  excess  of  a  judgment  beyond 
the  jurisdiction  of  the  court  which  renders 
it  is  as  void  as  a  judgment  without  any  ju- 
risdiction, and  a  prisoner  held  under  such 
excess  is  entitled  to  his  release  by  writ  of 
habeas  corpus.  Munson  v.  McClau^hry, 
42:  302,  198  Fed.  72,  117  C.  C.  A.  180; 
Stevens  v.  McClaughry,  51:  390,  207  Fed.  18, 
125  C.  C.  A.  51. 

32.  The  right  of  the  petitioner  in  habeas 
corpus  proceedings  to  have  the  court  look 
into  facts  dehors  the  record  to  determine 
the  question  of  the  jurisdiction  of  the  court 
which  committed  him  is  lost  by  his  waiver 
of  the  appointment  of  a  commissioner  to 
take  testimony  to  establish  such  facts, 
since  he  thereby  elects  to  stand  upon  the 
record  facts.  Ex  parte  Clark,  15:  389,  106 
S.  W.  990,  208  Mo.  121. 

33.  The  contention  that  jurisdiction  to 
punish  for  contempt  cannot  be  sustained  by 
a  false  recital  of  facts  is  abandoned  in  a 
habeas  corpus  case  by  petitioner's  waiver  of 
the  appointment  of  a  commissioner  to  take 
testimony  as  to  controverted  facts.  Ex 
parte  Clark,  15:  389,  106  S.  W.  990,  208  Mo. 
121. 

Arrest;  ceminitment. 

34.  j?he  sufficiency  of  a  warrant  issued 
by  a  court  of  competent  jurisdiction  will 
not  be  inquired  into  upon  an  application 
for  a  writ  of  habeas  corpus  to  secure  the 
release  of  one  arrested  under  it.  Re  Mi- 
lecke,  21:259,  100  Pac.  743,  52  Wash.  312. 

35.  The  court  will  not,  under  a  writ  of 
habeas  corpus,  inquire  into  the  legality  or 
justice  of  the  mandate  under  which  petition- 
er is  held,  if  it  is  not  defective  in  matter 
of  substance.  People  ex  rel.  Farrington  v. 
Mensching,  10:  625,  79  N.  E.  884,  187  N. 
Y.  8. 

36.  A  convict  who  has  been  rearrested 
upon  executive  order  for  violation  of  a 
conditional  parole,  in  the  absence  of  statute 
or  an  express  provision  of  the  parole  pro- 
viding for  a  hearing,  may  maintain  habeas 
corpus  proceedings  to  show,  if  he  can,  that 
he  has  performed  the  conditions  of  the  pa- 
role, or  that  he  has  a  legal  excuse  for  not 
having  done  so,  or  that  he  is  not  the  same 
person  who  was  convicted.  Re  Ridley,  26: 
no,  106  Pac.  549,  3  Okla.  Crim.  Rep.  350. 
Matters  as  to  indictments. 
Conclusiveness  of  discharge  because  of  in- 
sufficiency of  indictment,  see  Judgment, 
93. 

37.  A  person  under  arrest  is  not  entitled 
to  release  on  habeas  corpus  because  of  the 
insufficiency  of  the  information,  if  by  stat- 
ute it  may  be  amended,  or  he  may  be  held 
pending  the  return  of  the  second  indictment 
or  information.  Bopp  v.  ClaTk.  52:  493, 
147  N.  W.  172,  —  Iowa,  — . 


HABEAS  CORPUS,  I.  c. 


136] 


38.  Habeas  corpus  will  not  lie  to  re- 
leas-  a  peison  convicted  of  misdemeanor, 
althons^h  the  court  refused  to  quash  the 
information  because  not  verified  as  required 
by  statute.  Ex  parte  Talley,  31:805,  112 
Pac.  SG,  4  Okla.  trim.  Rep.  398. 

39.  A  conviction  of  misdemeanor  on  an 
unverified  information  is  not  so  far  void 
that  accused  can  be  released  on  habeas 
corpus,  although  the  statu  j  requires  in- 
formations to  be  verified.  Ex  parte  Tal- 
ley, 31:  805,  112  Pac.  36,  4  Okla.  Crim.  Rep. 
398. 

40.  Habeas  corpus  lies  to  secure  the  re- 
lease of  one  in  custody  under  a  conviction 
upon  a  complaint  which  charged  no  offense 
under  the  laws  of  the  state  because  no  law 
existed  making  the  acts  committed  by  ac- 
cused an  offense,  although  he  did  not  pur- 
sue his  remedy  by  appeal.  Ex  parte  Roque- 
more,  32:  1186,  131  S.  W.  1101,  60  Tex. 
Crim.  Rep.  282. 

Sentence. 

41.  A  sentence  under  an  ordinance  pro- 
viding a  penalty  for  its  violation  of  either 
fine  or  imprisonment  of  one  convicted  of 
its  violation,  to  both  fine  and  imprisonment, 
does  not  entitle  the  convicted  person,  who 
has  neither  paid  the  fine  nor  suffered  im- 
prisonment, to  the  writ  of  habeas  corpus. 
Re  Cica,  51:  373,  137  Pac.  598,  18  N.  M.  452. 

42.  The  judgment  of  a  court  having  ju- 
risdiction of  the  person  and  the  subject- 
matter  and  power  to  render  a  judgment  up- 
on a  sufficient  showing  of  facts,  imposing  an 
indeterminate  sentence  upon  a  person  who 
has  pleaded  guilty  of  a  crime,  will  be  sus- 
tained as  against  an  attack  on  habeas  cor- 
pus, notwithstanding  an  agreement  between 
the  prisoner  and  the  trial  judge  prior  to  the 
former's  conviction  upon  the  plea  of  guilty, 
that  his  imprisonment  under  such  conviction 
should  not  exceed  a  certain  time,  and  that 
the  plea  of  guilty  was  entered  in  reliance 
upon  such  agreement.  State  ex  rel.  Kelly 
V.  Wolfer,  42:  978,  138  N.  W.  315,  119  Minn. 
368. 

43.  Under  a  statute  authorizing  the 
court  to  sentence  to  the  reformatory  any 
person  not  less  than  sixteen  nor  more  than 
thirty  years  of  age,  etc.,  and  who  has  been 
convicted  of  a  crime  punishable  by  impris- 
onment in  the  state  prison,  the  fact  that  a 
judgment  of  conviction  of  such  a  crime,  up- 
on which  the  defendant  is  sentenced  to  the 
reformatory,  fails  to  state  the  age  of  the 
defendant,  does  not  render  it  subject  to  at- 
tack on  habeas  corpus.  State  ex  rel.  Kelly 
V.  Wolfer,  42:  978,  138  N.  W.  315,  119  Minn. 
308. 

44.  The  sentence  of  a  defendant,  convict- 
ed on  two  separate  counts  of  an  indictment, 
under  §§  5478  and  5456.  or  5475,  Revised 
Statutes  (U.  S,  Comp.  Stat.  1901,  pp.  3683, 
3694,  3696) ,  of  burglary  of  a  postoffice  build- 
ing with  intent  to  commit  larceny  and  of 
larceny  committed  at  the  same  time  and  as 
a  part  of  a  continuous  criminal  act,  to  im- 
prisonment for  the  burglary  and  imprison- 
ment for  the  larceny,  to  begin  at  the  ex- 
piration of  the  sentence  for  the  burglary,  is 
ultra  vires  and  void  as  to  the  sentence  for 
larceny,  and  after  the  defendant  has  satis- 
Digest  1-52  L.R.A.(N.S.) 


fied  the  sentence  for  the  burglary  he  is  en- 
titled to  his  release  on  Iiabeas  corpus.  Mun- 
son  v.  McClaughrv,  42:  302,  198  Fed.  72,  117 
C.  C.  A.  180. 

45.  The  sentence  of  a  defendant  convicted 
under  separate  counts  of  an  indictment  un- 
der Rev.  Stat.  §  5469,  U.  S.  Comp.  Stat. 
1901,  p.  3692,  of  larceny  of  a  mail  pouch 
containing  registered  letters  and  of  letters, 
and  also  of  larceny  of  registered  letters  and 
embezzlement  of  their  contents,  committed 
at  the  same  time  and  place  and  as  parts  of 
a  continuous  criminal  act,  to  separate  pun- 
ishments, is  beyond  the  jurisdiction  of  the 
court,  and  void  as  to  the  excess  above  the 
maximum  punishment  that  may  be  imposed 
for  a  single  offense;  and,  after  the  defend- 
ant has  satisfied  such  a  sentence,  he  is  en- 
titled to  his  release  by  habeas  corpus.  Ste- 
vens V.  McClaughry,  51 :  390,  207  Fed.  18, 
125  C.  C.  A.  51.  (Annotated) 

46.  Where  a  single  sentence  in  excess  of 
the  time  prescribed  for  a  single  offense  is 
imposed  upon  one  convicted  upon  an  indict- 
ment charging  distinct  ofi'enses  in  several 
coimts,  the  court,  in  a  habeas  corpus  pro- 
ceeding for  release  of  the  prisoner  after  he 
has  served  the  full  time  for  one  offense,  will 
not  apportion  the  remainder  of  the  sentence 
among  the  other  counts  so  as  to  retain  the 
prisoner  in  custody, — at  least  where  an  equal 
apportionment  would  rendei  the  entire  sen- 
tence void,  because,  under  the  statute,  the 
prisoner  cannot  be  sentenced  to  the  desig- 
nated prison  for  such  short  term.  United 
States  v.  Peeke,  12:  314,  153  Fed.  166,  82  C. 
C.  A.  340. 

47.  Habeas  corpus  will  not  lie  to  re- 
lease from  custody  a  prisoner  who  has  in  all 
respects  been  regularly  convicted  and  sen- 
tenced, except  that  the  designated  place  of 
imprisonment  is  not  that  specified  by  stat- 
ute, since  the  sentence  is  not  entirely  void: 
but  the  erroneous  part  may  be  rejected  as 
surplusage,  and  the  prisoner  remanded  to 
the  place  of  imprisonment  required  by  stat- 
ute. Re  Tani,  13:  518,  91  Pac.  137,  29  Nev. 
385.  (Annotated) 
Proceedings  for  cnstody  of  child. 
Appeal  from  order,  see  Appeal  and  P]rbor, 

69. 

Effect  of  appeal  from  decree  as  to,  see  Ap- 
peal AND  Error,  111. 

Review  on  appeal  of  discretion  as  to,  see 
Appeal  and  Error,  569. 

Jurisdiction  of  court,  see  Courts,  17. 

Presumption  on  habeas  corpus  as  to  right 
to  custody  of  child  in  case  of  divorce, 
see  Evidence:,  504. 

Stipulation  not  to  remove  child  from  juris- 
diction during  pendency  of  proceeding, 
see  Infants,  19. 

Disqualification  of  judge,  see  Judges,  15. 

Conclusiveness  of  decree,  see  Judgment,  90, 
91. 

Conclusiveness  of  judgment  of  other  state 
in,  see  Jxttment,  281. 

48.  The  dif  rction  conferred  on  courts 
in  the  determination  of  habeas  corpus  pro- 
ceedings on  account  of  the  detention  of  a 
child  is  applicable  to  all  courts  authorized 
to  grant  the  writ,  including  the  ordinary. 


1368 


HABEAS  CORPUS,  I.  c. 


Barlow   v.    Barlow,   52:  683,  81    S.   E.   433, 
141  Ga.  530. 

49.  Upon  a  writ  of  habeas  corpus  to  de- 
termine the  custody  of  a  child,  the  court 
is  not  bound  to  deliver  the  child  into  the 
custody  of  any  particular  person  or  claim- 
ant, but  may  leave  it  in  such  custody  as 
its  welfare  at  the  time  may  ceem  to  re- 
quire. Knapp  V.  Tolan,  49:  83,  142  N.  W. 
915,  26  N.  D.  23. 

50.  The  writ  of  habeas  corpus  will  not 
issue  at  the  instance  of  a  stranger  to  remove 
a  child  from  the  custody  of  a  wet  nurse  to 
which  it  has  been  committed  by  its  parents, 
on  the  ground  that  she  is  unsuitable  and 
unfit  to  have  custody  of  it,  since  no  illegal 
restraint  is  shown.  Re  Allen,  9:  1173,  56  S. 
E.  786,  76  S.  C.  151.  (Annotated) 
Proceedings      affecting      incompetent 

persons. 

51.  It  being  admitted  that  a  person 
whose  release  from  an  asylum  for  the 
insane  is  sought  on  habeas  corpus  proceed- 
ings was,  at  the  time  of  the  commitment 
and  at  the  time  of  the  hearing,  insane,  the 
relief  being  sought  solely  on  the  ground 
that  the  statute  under  which  the  party  was 
held  was  void,  such  party  is  not  entitled 
as  a  matter  of  right  to  be  discharged  upon 
that  ground  alone.  Ex  parte  Dagley, 
44:  389,  128  Pac.  699,  35  Okla.  180. 

( Annotated ) 

52.  Where  the  superintendent  of  an  in- 
sane hospital  refuses  to  discharge  a  person 
who  was  acquitted  of  crime  because  of  in- 
sanity and  committed  to  the  hospital  for 
treatment,  upon  his  recovery,  he  is  entitled 
to  a  writ  of  habeas  corpus  to  secure  his 
release.  Northfoss  v.  Welch,  36:  578,  133 
N.   W.    82,    116   Minn.   62.         (Annotated) 

53.  Although  the  confinement  of  an  in- 
sane person  whose  going  at  large  would  be 
dangerous  to  himself  or  to  other  people  is 
illegal,  he  will  not  be  set  at  liberty  under 
a  writ  of  habeas  corpus,  but  he  will  be  de- 
tained, to  permit  a  legal  commitment  to  be 
secured  under  legal  proceedings.  Re  Allen, 
26:  232,  73  All.  1078,  82  Vt.  365. 
Contempt   proceedings. 

As  to  evidence,  see  Evidence,  506. 

54.  Irregularities  in  proceedings  before 
a  justice  of  the  peace  committing  a  recu- 
sant witness  cannot  be  reviewed  upon  ha- 
beas corpus,  as  it  is  only  when  the  pro- 
ceedings are  void  that  such  writ  can  be  in- 
voked. Ex  parte  Button,  23:  1173,  120  M. 
W.  203,  83  Neb.  636. 

55.  A  judgment  of  a  court  committing  a 
witness  for  contempt,  that,  upon  the  facts, 
he  was  guilty  of  contempt,  is  not  binding 
in  a  habeas  corpus  proceeding  to  secure  his 
release.  Creasy  v.  Hall,  41:  478,  148  S.  W. 
914,  243  Mo.  679. 

56.  A  judgment  or  order  committing  to 
jail  upon  a  charge  of  contempt  in  disobey- 
ing a  decree,  made  in  the  absence  of  the 
person,  is  void,  and  a  person  imprisoned  un- 
der it  will  be  relieved  by  a  writ  of  habeas 
corpus.  Mylius  v.  McDonald,  10:  1098,  56 
S.  E.  602,  61  W.  Va.  405.  (Annotated) 
Digest  1-52  Ii.R.A.(N.S.) 


Extradition    proceedings. 

Review  of  proceedings  on  appeal,  see  Ap- 
peal AND  Ekbor,  192. 

Right  to  release  on  bail,  see  Bajl  AND 
Recognizance,  7,  8. 

Evidence  admissible,  see  Evidence,  784,  817. 

Conclusiveness  of  discharge,  see  Judgment, 
93. 

See  also  supra,  23,  24. 

57.  A  person  accused  of  crime  who  is 
personally  within  the  jurisdiction  of  the  de- 
manding state,  and  who  there  applies  to  the 
court  for  his  disciiarge  on  habeas  corpus, 
cannot  raise  the  question  whether  or  not  he 
has  been,  as  matter  of  fact,  a  refugee  from 
the  justice  of  that  state,  within  the  mean- 
ing of  the  Federal  Constitution  and  the  act 
of  Congress  a«thorizing  interstate  extradi- 
tion. Re  Moyer,  12:  227,  86  Pac.  897,  12 
Idaho,  250. 

58.  The  action  and  conduct  of  the  gov- 
ernor of  a  state  in  which  a  person  accused 
of  crime  is  found,  in  issuing  his  executive 
warrant  surrendering  the  accused,  and  of 
the  executive  and  ministerial  officers  acting 
in  aid  of  his  warrant,  are  matters  for  the 
consideration  of  the  courts  of  his  state,  sub- 
ject to  the  reviewing  authority  of  the  Fed- 
eral courts,  in  so  far  as  a  Federal  question 
is  involved;  and  are  not  questions  open  to 
examination  or  consideration  by  the  courts 
of  a  foreign  state  on  application  for  a  writ 
of  habeas  corpus.  Re  Moyer,  12:  227,  85 
Pac.  897,  12  Idaho,  250. 

59.  Whether  the  warrant  of  the  chief 
executive  of  a  state  surrendering  an  accused 
person  was  issued  lawfully  or  unlawfully 
will  not  be  inquired  into  by  the  courts  of 
the  demanding  state  on  an  application  for  a 
writ  of  habeas  corpus,  where  the  prisoner  is 
held  under  due  and  legal  process  issued  out 
of  a  court  of  competent  criminal  jurisdiction, 
since  the  warrant,  upon  delivery  of  the  ac- 
cused into  the  jurisdiction  of  the  demanding 
state,  has  accomplished  its  purpose  and  be- 
come functus  officio.  Re  Moyer,  12:  227,  85 
Pac.  897,  12  Idaho,  250. 

60.  The  motives  which  prompt  the  chief 
execttUve  of  a  state  to  issue  his  warrant  for 
the  rendition  of  a  prisoner  will  not  be  con- 
sidered on  habeas  corpus,  since  such  inquiry 
would  be  opposed  to  public  policy  and  the 
freedom  of  action  of  the  executive  depart- 
ment of  the  government.  Re  Moyer,  12: 
227,  85  Pac.  897,  12  Idaho,  250. 

61.  Evidence  that  the  charge  against  one 
sought  in  extradition  proceedings  was  made 
on  improper  motives,  and  that  he  was  not 
guilty  of  the  crime  charged,  will  not  justify 
his  release  from  custody  under  a  writ  of 
habeas  corpus,  where  the  proceedings  are  in 
exact  compliance  with  the  Constitution  and 
laws  of  the  United  States.  Com.  ex  rel. 
Flower  v.  Superintendent  of  Prison,  21 :  939, 
69  Atl.  916,  220  Pa.  401.  (Annotated) 

62.  One  arrested  in  extradition  proceed- 
ings, as  a  fugitive  from  justice,  is  entitled, 
in  a  habeas  corpus  proceeding  to  secure  his 
release  from  custody,  to  controvert  only  the 
jurisdictional  facts.  Com.  ex  rel.  Flower 
V.  Superintendent  of  Prison,  21:  939,  69  Atl. 
916,  220  Pa.  401. 


HABEAS  CORPUS,  I.  d,  II. 


1369 


63.  The  courts  may,  in  a  habeas  corpus 
proceeding  to  secure  the  release  of  one  ar- 
rested as  a  fugitive  from  justice,  inquire 
into  the  legality  of  the  indictment  or  com- 
plaint upon  which  tiie  requisition  is  based. 
Re  Waterman,  ii:  424,  89  Pac.  291,  29  Nev. 
288.  ( Annotated ) 

64.  That  a  copy  of  an  indictment  upon 
which  an  alleged  fugitive  from  justice  was 
arrested  in  extradition  proceedings  shows 
the  offense  to  be  barred  by  the  statute  of 
limitations  does  not  avail  accused  to  secure 
his  discharge  from  custody  under  a  warrant 
of  the  governor  issued  upon  papers  con- 
taining a  duly  certified  copy  of  the  indict- 
ment which  shows  that  the  offense  was  com- 
mitted within  the  limitation  period.  Ex 
parte  Kuhns,  50:  507,  137  Pac.  83,  36  Nev. 
487. 

65.  Relief  by  habeas  corpus  will  not  be 
granted  to  inquire  into  a  detention  under 
an  extradition  warrant  if  the  magistrate 
issuing  such  warrant  had  jurisdiction  of  the 
person  of  the  accused  and  of  the  subject- 
matter,  and  had  before  him  competent  legal 
evidence  of  the  commission  of  the  crime  with 
which  he  was  charged  in  the  complaint, 
which,  according  to  the  local  law,  would 
justify  his  apprehension  and  commitment 
for  trial  if  the  crime  had  been  committed 
within  the  state.  Charlton  v.  Kellv,  46: 
397,  33  Sup.  Ct.  Rep.  945,  229  U.  S.  447, 
57  L.  ed.  1274. 

66.  One  held  under  the  governor's  war- 
rant in  interstate  rendition  proceedings  is 
not  entitled  to  his  release  on  habeas  corpus 
because  he  was  forcibly  brouglit  into  the 
state  from  a  foreign  country,  and  then  ar- 
rested as  a  fugitive  from  justice,  if  the 
state  officers  had  nothing  to  do  with  the 
wrongful  act  of  bringing  him  into  the  state. 
Ex  parte  Raicevich,  36:  243,  140  S.  W.  98. 
63  Tex.  Grim.  Rep.  281. 

d.  Procecltire ;  judgment. 

(See  also   same   heading   in  Digest   L.R.A. 
1-10.) 

Evidence   in   habeas   corpus  case,   see   Evi- 
dence, 506,  784,  817. 

67.  Strict  technical  pleadings  are  not 
required  in  habeas  corpus  proceedings.  Wil- 
kinson v.  Lee,  42:  1013,  75  S.  E.  477,  138  Ga. 
360. 

68.  One  whose  application  for  a  writ  of 
habeas  corpus  to  discharge  him  from  cus- 
tody shows  that  he  was  committed  for  re- 
fusal to  answer  questions  propounded  to 
him  as  a  witness  in  court  cannot  be  dis- 
charged on  motion  because  the  return  to 
the  writ  is  not  verified  by  the  proper  per- 
son. Hamilton  v.  Plunkett,  35:  583,  70  S. 
E.  781,  136  Ga.  72. 

69.  One  who,  having  been  released  on 
bail  under  a  writ  of  habeas  corpus  from 
custody  to  which  he  had  been  committed  in 
interstate  rendition  proceedings,  as  a  fugi- 
tive from  justice,  cannot  be  discharged  from 
custody  and  have  his  bond  canceled  during 
his  absence  from  court.  State  v.  Massee, 
46:  781,  79  S.  E.  97,  95  S.  C.  315. 
Digest  1-52  Ii.R.A.(N.S.) 


70.  Respondent  in  a  writ  of  habeas  cor- 
pus is  required  to  relieve  himself  of  the  im- 
putation of  having  imprisoned  petitioner 
without  lawful  authority  without  regard  to 
the  statements  of  the  petition  for  the  writ, 
and  may  therefore  make  his  defense  alone 
to  the  statements  in  the  writ.  Re  Moyer, 
12:  979,  85  Pac.  190,  35  Colo.  159. 
Burden   of  proof. 

Presumption   as   to   regularity   of   criminal 
proceedings,  see  Evidence,  689. 

71.  Under  a  constitutional  provision 
that  all  persons  accused  of  crime  shall  be 
bailable  except  in  case  of  one  accused  of  a 
capital  offense  when  the  proof  of  guilt  is 
evident  or  the  presumption  thereof  great, 
upon  an  application  to  the  supreme  court 
for  bail  by  writ  of  habeas  corpus  after  com- 
mitment for  a  capital  offense  by  a  justice 
of  the  peace,  bail  not  being  demandable  as  a 
matter  of  right,  the  burden  is  on  the  peti- 
tioner to  show  that  he  is  illegally  deprived 
of  his  liberty.  Re  Thomas,  39:  752,  93 
Pac.  980,  20  Okla.  167,  1  Okla.  Crim.  Rep. 
15. 

Appeal. 

Appealability  of  judgment  or  order  in,  see 

Appeal  and  Error,  17-19. 
Jurisdiction    of    appeal,    see    Appeal    and 

Error,  69. 
Effect  of  appeal  from   decree,   see  Appeal 

ANt)  Error,  111. 
Record  on  appeal,  see  Appeal  and  Error, 

192. 
Scope  of  review  on  appeal,  see  Appeal  and 

Error,  494. 
Review  of  discretion  on  appeal,  see  Appeal 

and  Error,  557. 
Review  of  error  in  denying  motion  to  quash 

writ  in,  see  Appeal  and  Error,  495. 
Remanding  petitioner  because  of  absence  of 

evidence  to  support  allegations  in  ap- 
plication, see  Appeal  and  Error,  1611. 
Reversal     because     of     disqualification     of 

judge,  see  Judges,  15. 
See  also  infra,  74. 

72.  Where  an  appeal  in  habeas  corpus 
proceedings  is,  by  the  provisions  of  a  stat- 
ute, required  to  be  tried  in  the  supreme 
court  in  the  same  manner  as  if  the  writ  had 
originally  issued  out  of  such  court,  errors 
and  irregularities  occurring  on  the  trial  be- 
low need  not  be  considered.  State  ex  rel. 
Kelly  V.  Wolfer,  42:  978,  138  N.  W.  315,  119 
Minn.  308. 

II.  In  Federal  court. 

(See  also   same  heading  in  Digest  L.R.A. 
1-10.) 

Conclusiveness  of  judgment,  see  Judgment, 
90-93. 

Existence   of  ordinary  remedy. 

73.  The  proper  Federal  court  may  re- 
lease by  writ  of  habeas  corpus  one  who  is 
being  restrained  of  his  liberty  for  many 
years  by  virtue  of  the  judgment  of  a  Fed- 
eral court  beyond  its  jurisdiction  and  there- 
fore void,  but  it  may  not  release  one  so 
held    by    virtue    of    a    judgment    which    is 


1370 


HABEAS  CORPUS,  III.— HALLWAYS. 


erronoous  but  within  the  jurisdiction  of  the 
court  which  rendered  it,  and  lience  not  void. 
The  writ  of  habeas  corpus  is  not  available 
to  perform  the  function  of  a  writ  of  error 
where  the  judgrtient  assailed  is  not  void. 
Stevens  v.  McCiaughry,  51:  390,  207  Fed. 
18,  125  C.  C.  A.  51. 

74.  One  who  is  being  restrained  of  his 
liberty  for  many  years  by  virtue  of  the 
judgment  of  a  Federal  court  which  is  beyond 
its  jurisdiction  and  void  is  not  barred  from 
a  release  therefrom  by  writ  of  habeas  corpus, 
by  the  fact  that  he  might  have  secured  such 
relief  by  a  writ  of  error,  but  failed  to  ap- 
ply for  it  until  it  was  too  late.  Stevens  v. 
McCiaughry,  51:  390,  207  Fed.  18,  125  C.  C. 

A.  51. 

Right  to  discliarge. 

75.  A  person  under  eighteen  years  of  age 
who  has  enlisted  in  the  United  States  Navy 
without  consent  of  his  parents  or  guardian, 
by  taking  oath  that  he  was  over  that  age, 
and  who  has  deserted  and  been  recaptured, 
and  is  held  for  trial  by  court-martial  on 
the  charges  of  fraudulent  enlistment  and 
desertion,  cannot  be  discharged  from  the 
custody  of  the  naval  authorities  under  a 
writ  of  habeas  corpus  prior  to  the  termina- 
tion of  such  trial.  Dillingham  v.  Booker, 
18:  956,  163  Fed.  696,  90  C.  C.  A.  280. 

(Annotated) 
t 
III.  In  English  courts. 

76.  The  court  la  without  jurisdiction  to 
issue  a  writ  of  habeas  corpus  which  is  not 
intended  for  immediate  service,  but  to  lie 
in  the  office  of  the  court  to  wait  an  oppor- 
tunity of  serving  it.     King  v.  Pinckney,  4 

B.  R.  C.  804,  [1904]  2  K.  B.  84.  Also  Re- 
ported in  73  L.  J.  K.  B.  N.  S.  448,  68  J.  P. 
361,  52  Week.  Rep.  513,  90  L.  T.  N.  S.  468, 
20  Times  L.  R.  363. 

77.  There  is  no  power  in  the  court  or  a 
judge  to  order  the  issue  of  a  writ  of  habeas 
corpus  directed  to  a  person  who  at  the  date 
of  the  order  is  out  of  the  jurisdiction. 
King  V.  Pinckney,  4  B.  R.  C.  804,  [1904] 
2  K.  B.  84.  Also  Reported  in  73  L.  J.  K. 
B.  N.  S.  448,  68  J.  P.  361,  52  Week.  Rep. 
513,  90  L.  T.  N.  S.  468,  20  Times  L.  R.  363. 

( Annotated ) 


HABENDUM. 

Effect  of  provision  in,  see  Deeds,  75,  76. 


HABITS. 

Evidence  as  to  generally,  see  Evidence, 
XI.  b. 

Opinion  evidence  as  to  habits  of  intemper- 
ance, see  Evidence,  1095. 

Representations  as  to,  in  insurance  policy, 
see  Insurance,  III.  e,  2,  b. 

Digest  1-52  KR.A.(N.S.) 


HABITUAL  CRIMINALS. 

Punishment  of,  see  Criminal  Law,  IV.  f. 


HABITUAL  DRUNKARD. 

Right  to  divorce  from,  see  Divorce  and 
Separation,  53. 

Actionableness  of  charge  of  being,  see  Evi- 
dence, 244. 

Guardianship  of,  see  Incompetent  Per- 
sons, 9,  40. 

As  to  drunkenness  generally,  see  Drunken- 
ness. 


HACKS. 

Discrimination  by  carrier  between  hack- 
men,  see  Carriers,  1007-1013;  Injunc- 
tion, 111. 

Ordinance  granting  special  privileges  to, 
see  Constitutional  Law,  254. 

Forbidding  solicitation  of  business  from 
passengers  entering  or  leaving  station, 
see  Constitutional  Law,  785;  Mu- 
nicipal Corporations,  181-185. 

As  exempt  property,  see  Exemptions,  13. 

Instructions  in  action  for  injury  to  passen- 
ger in  cab,  see  Trial,  902. 

Imputing  driver's  negligence  to  passenger, 
see  Nexjligence,  261,  265. 

1.  Proprietors  of  hacks  and  cabs,  carry- 
ing passengers  for  hire,  are  liable  for  all 
injuries  caused  by  their  failure  to  proviJc 
suitable  vehicles,  safe  horses  and  hnrnesx, 
and  a  competent,  careful  driver.  Lewark  v. 
Parkinson,  5:  1069,  85  Pac.  601,  73  Kan.  5.^:?. 

( Annotated ) 


HAIL. 

Insurance  against  destruction  by,  see  iNr 
subance,  35. 


HALF  BLOOB. 


Inheritance  between    relatives   of,    see   De- 
scent AND  Distribution,  6,  7,  12. 


■♦•» 


HALF  BROTHER. 

As  heir,  see  Wills,  164. 

♦-•"♦ 

HALLW^AYS. 

Easement  hi,  see  Easements,  48,  .")!. 


HAMMER— HEAD  OF  FAMILY. 
HAMMER.  HARMI,ESS  ERROR. 


1371 


Duty  of  master  to  inspect  for  defects,  see 
Master  and  Servant,  431. 


HAND. 


Damages  for  injury  to,  or  loss  of,  see  Dam- 
ages, 427-430. 

Paralysis  of,  within  insurance  policy,  see 
Insurance,  190. 


HAND    CAR. 


Person   riding  on,   as  passenger,   see   Cak- 

BIERS,    78. 
In     street    as    unlawful    obstruction,     see 

Highways,  280. 
Negligence    in    running,    see   Master    and 

Servant,  774-777. 
Section   foreman   as  vice  principal  of  men 

propelling,  see  Master  and  Servant, 

851. 
As  dangerous  agency  in  hands  of  servant, 

see  Master  and  Servant,  889. 
Injury  to  infant  permitted  by  employees  to 

ride  on,  see  Master  and  Servant,  910. 
Injury    to    children    playing    on,    see   Neg- 
ligence,  160,   161. 


HANDHOLDS. 


Injury  to  servant  by  lack  of  handholds 
on  wrecked  engine,  see  Master  and 
Servant,  418;  Notice,  11. 


HANDAVRITING. 


Presumption  of  drawee's  knowledge  of,  see 
Banks,    121,    122. 

Admissibility  of,  for  purpose  of  compari- 
son, see  Evidence,  IV.  p. 

Evidence  as  to  genuineness  of  generally, 
see  Evidence,  741,  742. 

Opinion  evidence  as  to,  see  Evidence,  VII. 
m. 

Proving  will  by  testimony  as  to  hand  writ- 
ing of  attesting  witnesses,  see  Evi- 
dence, 2293. 


HARBOR. 


Harbor  improvement  bonds,  see  Bonds,  78, 
87. 

Jurisdiction  to  compel  removal  of  wreck 
from,  see  Courts,  294. 

Charging  vessel  owner  with  expense  of  re- 
moving vessel   from,   see   Shipping,    1. 

Digest  1-52  L-.R.A.(N.S.) 


See  Appeal  and  Error,  VII.  m. 


HARNESS. 


Master's  duty  to  keep  safe,  see  Master  and 
Servant,  328. 


HAAVKERS. 


See  Peddlers. 


HAY. 

Evidence  as  to   quality  of,   see  Evidence, 

886,  1169. 
Lien  for  storage  of,  see  Liens,  8. 
Warranty  on  sale  of,  see  Sale,  76;  201. 


HAT   PRESS. 


Breach  of  warranty  on   sale  of,  see  Sale, 
71,  202. 


HAZARD. 


Insured  against,  increase  of,  see  Insur- 
ance, III.  e,  1,  c;  VI.  b,  3,  f. 

What  constitutes  a  railroad  hazard,  see 
Master  and  Servant,  755,  757. 


HAZING. 

Injury   to    employee   by,    see   Master   and 
Servant,    953. 


HEADLIGHT. 


Regulation  of  character  of,  as  interference 
with  commerce,  see  Commerce,  05. 

Requiring  use  of  certaiji  kind  of  headlights 
on  locomotives,  see  Constitutional 
Law,  209,  210,  438,  439;  Railroads, 
58,   59. 

Running  train  without,  see  Railroads,  78, 
79,  104,  181. 

Blinding  of  traveler  by  headlight  of  street 
car,  see  Street  Railways,  24. 


HEAD    OF    FAMILY. 

Who  is,  within  meaning  of  homestead  law, 
see  Homestead,    10-12. 


1372 


HEALTH,  I.— III.  a. 


HEALTH. 

/.  Boards  of  health,  1,  2. 
II.  Epidemics, 

III.  Regulations  to  protect  health,   3— 

12. 

a.  In  general,  3—11. 

b.  Vaccination,    12. 

IV.  Destruction  of  property  to  protect. 
V.  Liability  of  officers,  13—20. 

Allegations  of  injury  to,  in  complaint  for 
injury  to  realty  by  nuisance,  see  Ac- 
tion OB  Suit,   121. 

Powers  of  board  of  examiners  of  applicants 
for   plumbing  license,   see   Boards,   2. 

Carrier's  duty  to  inform  passenger  as  to 
quarantine,   see   Carbieks,   221. 

Removal  of  passenger  from  train  by  quar- 
antine or  health  officer,  see  Carriers, 
406. 

Coimty's  liability  for  negligence  of  health 
officer,  see   Counties,   3,   7,   8. 

Injury  to,  as  element  of  damages  in  breach 
of  promise  case,  see  Damages,  319. 

Removal  by  municipality  of  person  afflicted 
with  contagious  disease  into  adjoining 
town,  see  Hospitals,  1. 

Representations  as  to,  in  insurance  policy, 
see  Insurance,  III.  e,  2,  b. 

Burning  of  house  in  attempting  to  fumi- 
gate it,  see  Insurance,  694. 

Municipal  liability  for  acts  of  health  de- 
partment, see  Municipal  Corpora- 
tions, 331. 

Municipal  liability  as  to  contagious  dis- 
ease, see  Municipal  Corporations, 
354. 

Nuisance  as  to  health,  see  Nuisances,  19- 
32. 

Infection  of  building  with  smallpox  by 
board  of  health,  see  Waste,  1. 

/.  Boards  of  health. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Personal  liability  of  members  of  board,  see 
infra,  V. 

Allegations  in  hearing  before,  of  charges 
against  physician  for  procuring  abor- 
tion, see  Abortion,  1. 

Costs  in  proceeding  to  enforce  order  of,  see 
Costs  and  Fees,  5. 

Relation  of  judiciary  to,  see  Courts,  73-75, 
97. 

Admissibility  of  rule  of,  see  Evidence,  753. 

Injunction  to  restrain  board  of  health 
from  sending  person  to  pest  house,  see 
Injunction,  107,  108. 

Proceedings  before,  to  revoke  physician's 
license,  see  Jury,  11;  Physicians,  10, 
11,  13;  Pleading,  442. 

Mandamus  to,  see  Mandamus,  56. 

Municipal  liability  for  acts  of,  see  Munici- 
pal Corporations,  415. 

Authority  of  town  to  remove  members  of, 
see  Towns,  4. 

1.  The  members  of  the  board  of  health 
of  the  department  of  health  of  the  city  of 
Digest  1-52  L.R.A.(N.S.) 


New  York  were  not  changed  from  admin- 
istrative to  judicial  officers  by  the  provi- 
sion of  §  1173  of  the  Greater  New  York 
charter  (3  Laws  1901,  page  500,  chap.  466) 
that  the  actions,  proceedings,  authority, 
and  orders  of  such  board  of  health  shall 
at  all  times  be  regarded  as  in  their  nature 
judicial,  and  be  treated  as  prima  facie  just 
and  legal;  the  purpose  of  that  provision  be- 
ing merely  to  invest  the  ordeir*  and  proceed- 
ings of  the  board  with  the  presumption  that 
they  were  duly  authorized,  and  were  just 
and  legal.  People  ex  rel.  Lodes  v.  Health 
Department,  13:  894, '82  N.  E.  187,  189  N. 
Y.  187. 
PoD^ers  of. 

Delegation  of,  see  Waters,  129. 
Delegation  of  power  to,  see  Constitution- 
al Law,  116-118. 
As  to  sale  of  milk,  see  Food,  9. 
Revocation  by,  of  permit  to  sell  milk,  see 

License,  33,  34. 
Grant  to  board  of  health  of  arbitrary  pow- 
er as  to  licenses,  see  License,  40. 
As  to  license  of  physicians,  see  Physicians 

and  Surgeons,  6,  7. 
As  to  vaccination  of  pupil,  see  Schools,  14, 
16-18. 

2.  Under  statutes  making  it  a  manda- 
tory duty  of  the  general  council  of  every 
city  having  a  certain  population  to  appoint 
a  board  of  health,  and  investing  such  boards 
of  health  with  the  same  powers  as  are  con- 
ferred upon  county  local  boards  of  health, 
the  powers  of  a  city  board  of  health  are 
not  derived  solely  from  the  general  council, 
and  it  may  therefore  enact  rules  and  regu- 
lations in  addition  to  and  inconsistent  with 
the  provisions  of  the  city  ordinance  under 
which  it  acts.  Board  of  Health  v.  Koll- 
man,  49:  354,  160  S.  W.  1052,  156  Ky.  351, 

II.  Epidemics. 

(See  same  heading  in  Digest  L.R.A.  J— 70.) 

III.  Regulations  to  protect  health. 

a.  In  general. 

(See  also  same  heading  in  Digest  LJt.A. 
1-10.) 

Carrier's  liability  where  delivery  is  for- 
bidden by  health  officers,  see  Cabbiers, 
835. 

Interference  with  property  rights  by,  see 
Constitutional  Law,  372. 

Requiring  certificate  of  freedom  from  ven- 
ereal disease  as  condition  to  marry,  see 
Constitutional  Law,  190;  Marriage, 
8. 

Statute  regulating  business  of  plumbing, 
see  Constitutional  Law,  284;  Li- 
cense, 71. 

Forbidding  use  of  polluted  water  supply 
for  drinking  purposes,  sec  Constitu- 
tional Law,  3.50. 

Validity  of  burial  regulations,  see  Con- 
stitutional Law,   352;    Corpse,  1. 


HEALTH,  III.  b,  IV. 


]373 


Forbidding  further  interments  in  cemetery, 
see  Constitutional  Law,  517,  668; 
Estoppel,  16. 

Drainage  and  filling  of  land  at  expense  of 
property  benefited,  see  Constitution- 
al Law,  607. 

Requiring  paving  of  surface  of  private  pas- 
sageways, see  Constitutional  Law, 
372. 

Permitting  occupant  of  lower  berth  in 
sleeping  car  to  control  upper  berth 
when  not  in  use,  see  Constitutional 
Law,  670. 

Regulation  of  bakery,  see  Constitutional 
Law,  691. 

Health  regulations  as  a  taking  of  property 
for  public  use,  see  Eminent  Domain, 
202. 

Burden  of  proving  pollution  of  water  by 
sewage,  see  Evidence,  496. 

Pure  food  laws  generally,  see  Food. 

Power  of  municipality  with  respect  to  dust 
raised  by  operation  of  street  cars,  see 
Municipal  Corporations,  130-134. 

Requiring  permit  from  health  commission- 
er for  hospital,  see  Municipal  Coepo- 
BATioNS,  215;   Parties,  163,  165,  166. 

Statute  as  to  inspection  of  animals  brought 
into  state,  see  Proximate  Cause,  24. 

In  matters  affecting  schools,  see  Schools, 
I.  c. 

Title  of  statute  conferring  powers  on  city 
in  "interest  of,  see  Statutes,  92,  161. 

Provision  for  protection  of  public  water 
supply,   see  Waters,    119-129. 

3.  The  police  jury  is  without  authority 
to  amend,  modify,  or  nullify  an  ordinance 

I  adopted  by  a  parish  board  of  health.  Nac- 
cari  V.  Kappelet,  13:  640,  44  So.  13,  119  La. 
272. 

4.  That  no  method  is  provided  for  en- 
forcing an  order  ^.f  a  state  board  of  health 
will  not  prevent  its  enforcement  by  tlie 
court,  if  its  order  might  be  of  such  a  cliar- 
acter  that  enforcement  of  it  would  result 
in  the  enforcement  of  that  of  the  state 
board.  State  Bd.  of  Health  v.  St.  Johns- 
bury,  23:  766,   73   Atl.   581,   82   Vt.   276. 

5.  That  the  conditions  in  an  isolated 
case  are  such  as  to  make  unnecessary  the 
enforcement  of  a  health  ordinance  will  not 
prevent  its  enforcement,  if  it  is  within  a 
general  clause  to  which  the  ordinance  is  ap- 
plicable. Benz  V.  Kremer,  26:  842,  125  N. 
W.  99,  142  Wis.  1. 

6.  Municipal  authorities  have  power  to 
provide  that  no  person  dying  in  the  city 
shall  be  interred  without  a  burial  permit 
from  the  board  of  health,  under  charter 
power  to  enforce  regulations  to  preveftt  the 
spread  of  contagious  diseases  in  the  city, 
and  to  secure  the  general  health  of  the  in- 
habitants. Mevers  v.  Duddenhauser,  5:  727, 
90  S.  W.  1049,  "122  Ky.  866. 

7.  The  adoption  by  a  board  of  health  of 
an  ordinance  declaring  the  use  of  fish  and 
shrimp-shell  refuse  as  a  fertilizer  to  be  a 
nuisance  dangerous  to  public  health  con- 
cludes the  question  whether  such  fertilizers 
can  be  safely  used  during  the  winter  months, 
Digest  1-52  Ii.R.A.(N.S.) 


where  it  does  not  clearly  apjiear  that  the 
action  of  the  board  is  arbitrary.  Naccari 
V.  Rappelet,  13:  640,  44  So.  13,  119  La.  272. 

8.  A  board  of  health  need  not  hear  tes- 
timony before  forbidding  a  municipality  to 
discharge  sewage  into  a  stream  which  is  a 
source  of  water  supply,  where  the  statute 
authorizes  it  to  make  a  thorough  investiga- 
tion in  such  cases,  and,  if  in  its  judgment 
the  public  health  so  requires,  forbid  the  dis- 
charge of  sewage  into  the  stream.  Miles 
City  V.  Board  of  Health,  25:  589,  102  Pac. 
696,  39  Mont.  405. 

Quarantine. 

Liability  of  members  of  health  board  in 
respect  to,  see  infra,  13,  18,  19. 

Quarantine  and  inspection  laws  as  regula- 
tion of  commerce,  see  Commerce,  16- 
20. 

Knowledge  of  mother  as  to  violation  of 
quarantine  by  children,  see  Evidence, 
203. 

SuflBciency  of  proof  of  violation  of  quaran- 
tine, see  Evidence,  2417. 

9.  Requiring  a  person  exposed  to  a 
contagious  disease  to  remain  in  quarantine 
during  the  duration  of  the  danger  from  the 
disease,  to  be  determined  by  a  health  offi- 
cer, is  reasonable.  State  v.  Racskowski, 
45:  580,  86  Atl.  606,  86  Conn.  677. 

10.  Power  to  quarantine  persons  ex- 
posed to  contagious  diseases  is  included  in 
a  statute  conferring  all  power  necessary 
and  proper  for  preserving  the  public  health 
and  preventing  the  spread  of  disease. 
State  V,  Racskowski,  45:  580,  86  Atl.  606, 
86  Conn.   677. 

11.  A  mother  who  knowingly  permits 
her  children  to  violate  a  valid  quarantine 
order  may  be  subject  to  the  statutory  pen- 
alty for  violating  quarantine.  State  v. 
Racskowski,  45:  580,  86  Atl.  606,  86  Conn. 
677. 

6.  Vaccination. 

(See  also   same   heading   in  Digest  L.R.A. 

1-10.) 

Vaccination  of  pupils,  see  Schools,  14,  16- 
18. 

12.  The  occasional  recurrence  of  small- 
pox in  a  city  does  not  present  an  emergency 
for  which  the  health  commissioner  may  make 
and  enforce  rules  not  prescribed  or  approved 
by  the  legislative  authority  of  the  city. 
People  ex  rel.  Jenkins  v.  Board  of  Educa- 
tion, 17:  709,  84  N.  E.  1046,  234  111.  422. 

IV.  Destruction  of  property  to  protect. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Power  to  require  destruction  of  diseased 
cows,  see  Constitutional  Law,  653; 
Municipal  Corporations,  162. 


1874 


HEALTH,  v.— HEAT. 


V.  Liability  of  officers. 

(See  also  same  heading  in  Digest  L.R.A. 
1-WJ 

Liability  for  costs  of  proceeding  to  enforce 

order,  see  Costs  and  Fees,  5. 
Liability  of  board  of  health  for  injury  from 

rope  barrier  placed  by  them  in  street, 

see  Highways,  175. 
Suits   against   board   of  health   for  acts   in 

abating  disease,  see  Trial,  279. 

13.  The  members  of  a  l)oard  of  health 
cannot  be  held  liable  for  injuries  caused  by 
their  failure  to  comply  with  a  provision  of 
a  statute  for  the  protection  of  the  communi- 
ty against  persons  afflicted  with  contagious 
disease,  and  the  quarantine  of  such  persons, 
that  "the}'  shall  provide  nurses,"  since  such 
matter  is  discretionary.  Rohn  v.  Osmun,  5: 
635,  106  N.  W.  697,  143  Mich.  68. 

( Annotated ) 

14.  Members  of  a  board  of  health  are 
liable  for  personal  misfeasance  in  so  con- 
ducting a  contagious  disease  hospital  that 
it  becomes  a  nuisance.  Barry  v.  Smith, 
5:  1028,  77  N.  E.  1099,  191  Mass.  78. 

15.  Members  of  a  board  of  health  are  not 
personally  liable  for  a  mistaken  or  negli- 
gent exercise  of  the  power  to  locate  a  con- 
tagious disease  hospital  within  a  city. 
Barry  v.  Smith,  5:  1028,  77  N.  E.  1099,  191 
Mass.  78. 

16.  Members  of  a  board  of  health  who 
appropriate,  either  personally  or  by  persons 
acting  in  their  presence  and  under  their  di- 
rection, private  property  as  an  adjunct  to  a 
contagious  disease  hospital,  to  the  exclusion 
of  the  owner  and  his  tenants,  without  his 
consent  or  the  proceedings  prescribed  by 
statute,  are  liable  therefor.  Barry  v.  Smith, 
5:  1028,  77  N.  E.  1099,  191  Mass.  78. 

17.  The  mere  fact  that  a  contagious-dis- 
ease hospital  is  shown  to  be  a  nuisance 
while  under  the  charge  of  members  of  the 
board  of  health  does  not  of  itself  establish 
their  liability  therefor,  but  it  must  be  shown 
that  the  condition  was  due  to  their  misfea- 
sance. Barry  v.  Smith,  5:  1028,  77  N.  E. 
1099,  191  Mass.  78. 

18.  Health  officers  are  not  individually 
liable  for  the  loss  of  crops  of  a  person  quar- 
antined for  contagious  disease,  although 
they  are  mistaken  as  to  the  existence  of  the 
disease.  Beeks  v.  Dickinson  County,  6:  831, 
108   N.   W.   311,   131    Iowa,  244. 

19.  The  members  of  a  board  of  health, 
acting  in  performance  of  a  public  duty,  un- 
der a  public  statute,  to  prevent  the  spread 
of  an  infectious  or  contagious  disease,  are 
not  personally  liable  in  a  civil  action  for 
damages  arising  out  of  their  acts  in  estab- 
lishing a  quarantine,  even  where  the  dis- 
ease does  not  actually  exist,  provided  they 
act  in  good  faith.  Valentine  v.  Engelwood, 
19:  262,  71  Atl.  344.  76  N.  J.  L.  509. 

20.  Constitutional  rights  to  private  prop- 
erty and  individual  liberty  are  not  infringed 
by  a  statute  forbidding  suits  against  a 
board  of  health,  its  officers  or  agents  for 
their  acts  in  abating  a  cause  of  disease,  un- 
Digest  1-52  L.R.A.(N.S.) 


less  upon  proof  that  the  board  acted  with- 
out reasonable  and  probable  cause  to  be- 
lieve that  the  alleged  cause  of  disease  was, 
in  fact,  prejudicial  and  hazardous  to  the 
public  health.  Valentine  v.  Engelwood,  19: 
262,  71  Atl.  344,  76  N.  J.  L.  509. 


HEARING. 


Necessity  of,  to  constitute  due  process,  se« 
Constitutional  Law,  II.  b,  7,  c. 

Right  to,  on  condemnation  of  property,  see 
Eminent  Domain,  125-131. 

Right  of  executor  to,  before  surcharging  of 
account,  see  Exbx;utoes  and  Adminis- 
trators, 130. 

In  mandamus  proceeding,  see  Mandamus, 
II.   d. 

Necessity  of,  before  declaring  bowling  alley 
a  nuisance,  see  Municipal  Corpora- 
tions, 150;  Nuisances,  5. 

Right  to,  before  destruction  of  property  as 
nuisance,  see  Nuisances,  169. 

On  removal  of  officer,  see  Officers,  69,  70. 

Right  of  taxpayer  to,  see  Taxes,  195. 


HEARSAY. 

Evidence  of,  see  Evidence,  X. 


HEAT. 

Carrier's  duty  to  heat  car,  see   Carriers, 

257-259. 
Duty  of  carrier  to  heat  station,   see  Car- 
riers,  596,   597;    Damages,   612. 
Contract  for  heating  system  in  public  build- 
ing, see  Contracts,  795,  796. 
Exercise  of  eminent  domain  for  purpose  of 

supplying,  see  Eminent  Domain,  4,  5, 

47,  71-73,  76. 
Parol  evidence  as  to  mode  of  heating,  see 

Evidence,  905. 
Right  to  maintain  electric  line  in  highway 

to    furnish    heat,    see    Highways,    53, 

54. 
Liability  of  lessee  for  cost  of  heating  plant, 

see  Landlord  and  Tenant,  34. 
Eviction  of  tenant  by  landlord's  failure  to 

properly  heat  building,  see  Landlord 

AND  Tenant,  62. 
Liability   of   owner  of  building   leased   for 

boarding  house  for  injury  to  occupants 

of  rooms  by  lack  of,  see  Landlord  and 

Tenant,   134. 
Liability  of  landlord  for  injury  by  shutting 

off  heat  from  tenement,  see  Landlord 

AND  Tenant,  206. 
Rules  adopted  by  corporation  organized  to 

supply,   see   Public   Service   Cobpora- 

TIONS,   3,   4. 
Rules    of    corporation    supplying    heat    to 
public,    see   Public    Service   Cobpoba- 

TTONS,  3,  4. 


HEATING  APPARATUS— HEMORRHAGE. 


1375 


Building  owner  furnishing,  to  others  than 
tenant  as  owner  of  public  utility,  see 
Public  Service  Corpokations,  12. 


HEATING    APPARATUS. 

Measure  of  damages  for  injury  to  tenant's 
property  through  bursting  of  defective 
steam   radiator,   see   Damages,    440. 

Landlord's  duty  to  keep  heating  apparatus 
in  repair,  see  Landlord  and  Tenant, 
164,  165. 


HEAT   OF   PASSION. 

Presumption  as  to,  see  Evidence,  109. 
Reducing     murder     to     manslaughter,     see 
Homicide,  64-69. 


HEIGHT. 

Segulating  height  of  buildings,  see  Build- 
ings, 5-11;  Constitutional  Law,  178, 
179,  662;   Mandamus,   129. 

Of  advertising  signs,  ordinance  as  to,  see 
Constitutional  Law,  659. 


HEIRS. 

Contract  by  devisee  to  share  real  estate 
with,  see  Action  or  Suit,  12. 

When  action  to  enforce  trust  for,  accrues, 
see  Action  or  Suit,  13. 

Defense  of  alteration  of  agreement  for  pay- 
ment of  money  as  against  heir  of  one 
to  whom  agreement  runs,  see  Altkba- 
TiON  of  Instruments,  3. 

Right  to  appeal  from  order  refusing  to  ap- 
point guardian  for  incompetent  person, 
see  Appeal  and  Error,  85. 

Right  to  question  power  of  benevolent  so- 
ciety to  take  under  will,  see  Benevo- 
lent Societies,  1. 

Right  to  question  authority  of  corporation 
to  take  devise,  see  Charities,  39. 

Authorizing  sale  of  property  of  absent  heir, 
see  Constitutional  Law,  608. 

Meaning  of  word  as  used  in  deed,  see  Deeds, 
II.  b. 

Meaning  of  words  "bodily  heirs"  in  deed, 
see  Deeds,  71. 

Rule  in  Shelley's  Case  as  to  use  of  word, 
see  Deeds,  II.  e,  3;  Wills,  III.  g,  3. 

Necessity  of  using  word,  in  deed,  see  Deeds, 
31,  54. 

Of  living  person,  construction  of  grant  to, 
see  Deeds,  32. 

As  to  descent  and  distribution  to,  see  De- 
scent and   Distribution. 

Liability  of,  for  debts  of  ancestor,  see  De- 
scent AND  Distribution,  III. 

Estoppel  of,  see  Estoppel,  33,  261,  262. 

Burden  of  proving  title  to  land  derived 
through  deeds  from,  see  Evidence,  618. 

Digest  1-52  L.R.A.(N.S.) 


Duty  of  one  entitled  to  accounting  from,  for 
money  received  from  father's  executor, 
to  show  amount  received,  see  Evidence, 
655. 

Distribution  to,  see  Executors  and  Admin- 
istrators, IV. 

Expectancies  of,  see  Expectancies. 

Fraudulent  grantee,  cancelation  of  convey- 
ance as  against,  see  Fraxhjulent  Con- 
veyances,  1^. 

Rights  of,  in  homestead,  see  Homestead, 
IV.  b. 

Enjoining  interference  with  cemetery  by, 
see  Injunction,  177. 

Rights  of,  in  life  insurance,  see  Insurance, 
VI.  d,  2,  b. 

Effect  of  laches  to  bar  rights  of,  see  Limi- 
tation of  Actions,  60. 

Running  of  limitations  in  favor  of,  see 
Limitation  of  Actions,  354. 

Effect  of  legitimation,  see  Parent  and 
Child,  II. 

Effect  of  adoption,  see  Parent  and  Child, 
III. 

As  parties  plaintiff,  see  Parties,  140-143. 

As  bona  fide  purchasers  within  protection 
of  recording  act,  see  Rixords  and  Re- 
cording Laws,  25. 

Meaning  of  word  "heirs"  in  treaties,  see 
Treaties,  4. 

Title  derived  through  deeds  from  heirs,  see 
Vendor  and  Purchaser,  35. 

Disinheriting,  see  Wills,  III.  c. 

Legacy  to,  see  Wills,  161-168. 

Lien  of  judgment  on  judgment  defendant's 
interest  in  property  as  heir,  see  Wills, 
376. 

1.  The  heirs  at  law  of  a  person  have 
no  right  to  his  property,  except  subject  to 
hip  pleasure, — he  is  not  bound  to  consult 
them  or  be  influenced  by  their  wishes,  nor 
have  they  any  right  in  the  matter  except 
that  he  be  left  free  to  exercise  his  own 
will.  Boardman  v.  Lorentzen,  52:  476,  145 
N.  W.  750,  155  Wis.  666. 


HEIRSHIP. 

Recitals  of,  in  deed,  see  Evidence,  785. 


HEI^PERS. 


Right  of  labor  union  to  strike  against  rec- 
ognition of  system  allowin<jj  wir"  ors  to 
employ  helpers,  see  Labor  On.  ■  i/a- 
TIOiNS,   51. 


HEMORRHAGE. 


As   proximate   cause  of   death,   see   Proxi- 
mate Calse,  22. 


1376 


HEPBURN  ACT— HIGHWAYS. 


HEPBURN  ACT. 

See    Appeal    and    Ebbob,    515;    Cabriebs, 
.^,^638,  937,  938. 


HERNIA. 

Death  from,  as  one  through  external,  vio- 
lent, and  accidental  means,  see  Instjb- 
ANCE,    737. 

Loss  resulting  to  insured  person  from,  see 
Insubance,  804. 

^•» 


HIDDEN  PROPERTY. 

See  Tbeasube-Tbove. 

♦-•-♦ 

HIGHER  I<AV7. 

See  Cbiminal  Law,  6. 


HIGH  SCHOOL. 


Special  legislation  as  to,  see  Statutes,  178. 

Statute  providing  course  of  free  high  school 
instruction  for  pupils  not  within  high 
school  districts,  see  Statutes,  342. 


HIGH   WATER    MARK. 

Title  to  land  below,  see  Watebs,  I.  c,  4,  b. 


HIGHWAYS. 


/.  Establishment;  width,  I—IO. 

a.  Establishment,  1—10. 

b.  Width. 

II.  Title;  xtse;  obstruction,  11—120. 

a.  In  general;  title  and  property 

rights,  11—31. 

b.  Uses;   what   alloiped   in   street 

generally,   32—73. 

c.  Obstruction  generally,   74—89. 

d.  Use   and    obstruction    by    rail- 

roads, 90—104. 

e.  Rights  as  to  trees  or  materials 

in  street,  105— 120. 

1.  Trees,   105—119. 

2.  Miscellaneous,  120. 

III.  Improvements;  repairs;  fixing  and 

changing  grade,   121—148. 

IV.  Defects;    liability    for   injuries    to 

travelers,   149—400. 
a.  Liability    of     municipality     or 
county,    149—264. 

1.  In   general,    149—164. 

2.  For    acts    or   omissions    of 

others,  165—176. 

3.  Who  entitled  to  protection 

or  rem,edy,  177—186. 

4.  Obstruction    and    nuisan- 

ces, 187-220. 
Digest   1-52   I<.R.A.(N.S.) 


IV.  a — continued. 

0.  Other  defects,  221—256. 
6.  Defect  in  sidewalk,   257-^ 

264. 

b.  Liability  of  others,  265—382. 

1.  In  general,  265—287. 

2.  Public  officials,  288. 

3.  Abutting     owners,     288ar- 

320. 

a.  In  general,  288a— 309. 

b.  Effect   of   lease,    310— 

320. 

4.  Contractors,  321—324. 

5.  Railroads,    325—327. 

6.  Street  railways,  328—332. 

c.  Contributory  negligence,  333— 

373. 

d.  Notice,  374—400. 

1.  Of  defects,  374-389. 

2.  Of  injuries,   390—400. 

V.  Discontinuance;  alteration;  aban- 
donment, 401—412. 

a.  Discontinuance,  401 — 411. 

1.  In  general,  401—405. 

2.  Rights       of       individuals, 

406-411. 

b.  Alteration. 

c.  Abandonment,  412. 
VI.  Highway  officers. 

Adverse  possession  of,  see  Advebse  Posses- 
sion, 49-51. 

As  to  alleys,  see  Alleys. 

Use   of  automobiles  on,   see  Automobiles. 

As  boundaries,  see  Boundaries,  II.  b. 

As  to  bridges,  see  Bridges. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,   157-1G2. 

Police  power  as  to,  see  Constitutional 
Law,  647-649. 

Sufficiency  of  performance  of  contract  to 
build  street  to  certain  level,  see  Con- 
tracts, 660. 

Judicial  review  of  municipal  action  as  to, 
see  Courts,   141-147. 

Nominal  damages  for  taking  fee  of  street 
which  had  been  platted  by  owner,  see 
Damages,  5. 

What  constitutes  a  taking  of,  or  damage 
to,  rights  in,  see  Eminent  Domain, 
ni.  b,  2. 

Additional  servitude  on,  see  Eminent  Do- 
main, IV. 

Injury  to  property  by  obstruction  of  sur- 
face water  in  constructing,  see  Emi- 
nent Domain,  217. 

Hight  of  access  to,  see  Estoppel,  31;  Evi- 
dence, 227. 

Destruction  of  easement  of  access  as  element 
of  damages  in  eminent  domain  case, 
see  Damages,  259,  260,  264,  270. 

Injury  to  highway  bridge  by  construction  of 
dams,  see  Dams,  1. 

Admissibility  of  evidence  as  to  traffic  which 
might  reasonably  be  expected  on,  in 
prosecution  for  driving  at  dangerous 
speed,  see  Evidence,  1769. 

Injunction  as  to,  see  Injunction,  I.  1. 

Injunction  against  dam  injuring  highway 
bridge,   see   Injunction,    372,   373. 


HIGHWAYS,  I.  a. 


1377 


What  is  "public  highway"  within  meaning 
<of  accident  insurance  policy,  see  In- 
surance,  719. 

Judicial  notice  of  location  of,  see  Evibence, 
20,  21. 

Judicial  notice  as  to  grade  of,  see  Evidence, 
22. 

Judicial  notice  as  to  division  of  cities  by 
streets  and  alleys,  see  Evidence,  56. 

Effect  of  judgment  denying  existence  of,  in 
suit  by  municipality  as  bar  to  action  to 
enforce  individual  rights  in  street,  see 
Judgment,    204,    205. 

Right  to  lateral  support  for,  see  Lateral 
Support,  2. 

Lateral  support  for  structures  underneath, 
see  Lateral  Support,  3. 

Eunning  of  limitations  against  right  to  re- 
cover for  injury  to  bridge,  see  Limi- 
tation OF  Actions,  98. 

Ordinance  requiring  roof  over  sidewalk 
where  materials  are  being  handled,  see 
PIASTER  and  Servant,  317 ;  Municipal 
Corporations,  47;  Proximate  Cause, 
123, 

Forbidding  smoking  in  streets  of  city,  see 
Municipal  Corporations,  211. 

Power  of  city  as  to  lighting  of,  see  Munici- 
pal Corporations,  II.  f,  1. 

Delegation  of  power  to  provide  for  clean 
streets,  see  Municipal  Corporations, 
45, 

Fright  of  horse  on,  by  blasting  in  quarry 
operated  by  municipality,  see  Munici- 
pal  Corporations,   347,'  359. 

Liability  of  city  for  injury  to  employee 
working  on,  see  Municipal  Corpora- 
tions, 376. 

Negligence  in  maintaining  vat  of  boiling 
water  near,  see  Negligence,  108. 

Right  of  state  to  maintain  bill  to  abate 
nuisance  in  city  street,  see  Nuisances, 
64. 

Licensee's  right  of  action  against  town- 
ship for  maintaining  open  ditch  along, 
rendering  private  way  unsafe,  see  Nui- 
sances,  67. 

Injunction  against  permitting  water  from 
coal  washing  plant  to  escape  into  open 
street  drains  of  city,  see  Nuisances, 
143. 

Liability  of  street  railway  company  for 
injury  to  shrubberv  by  fumes  arising 
from  creosoted  paving  blocks,  see  Nui- 
sances,  ]99. 

Allegations  in  petition  for  injunction 
against  nuisance  in,  see  Pleading,  432. 

Over  public  land,  see  Public  Lands,  11,  18. 

Meaning  of  term  "public  highway"  in  gen- 
eral law,  see  Statutes,  248. 

Eight  to  sell  for  delinquent  taxes,  see  Tax- 
es, 111, 

Toll  roads,  see  Tolls  and  Toll  Eoads. 

Finding  that  street  ceased  to  be  used  as 
public  highway  as  one  of  fact,  see  Tri- 
al, 1104. 

Rescission  of  land  contract  for  breach  of 
agreement  to  construct  highway  to 
property,  see  Vendor  and  Purchaser, 
71,  .M    rn    •.  ' 

Digest  1-52  I..R.A.(N.S.) 


j  Liability  for  withdrawing  percolating  water 
in    construction   of   tunnel   of   railroad 

I  under    adjoining    street,    see    Waters, 

277. 
Municipal    contract   for    sprinkling   streets, 
see  Waters,  347, 

I.  Establishment;   width. 

a.  Establishment. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Eight  of  legislature  to  provide  for  con- 
struction of,  see  Constitutional  Law, 
144. 

Liability  for  costs  of  proceeding  to  open, 
see  Costs  and  Fees,  6. 

Extending  across  railroad  tracks,  see  Dam- 
ages, 5G5-570;  Eminent  Domain,  38, 
219;  Municipal  Corporations,  236; 
Eailroads,  36-44;   Trial,  634, 

By  dedication,   see  Dedication. 

Power  to  condemn  land  for,  see  Eminent 
Domain,   I. 

Creating,  under  power  of  eminent  domain, 
for  private  purpose,  see  Eminent  Do- 
main, 92. 

Eight  acquired  by  condemnation,  see  Emi- 
nent Domain,  115. 

Notice  and  light  to  hearing  on  condemn- 
ing land  for,  see  Eminent  Domain, 
126,   127,   131. 

When  right  to  enter  on  land  coiidemned  for, 
accrues,  see  Eminent  Domain,  252- 
254. 

Measure  of  damages  on  condemnation  of 
right  of  VFay  for,  see  Damages,  III.  1, 
5, 

Eight  to  compensation  on  extending  street 
across  tide  lands,  see  Eminent  Do- 
main, 245, 

Evidence  in  action  to  condemn  property  for 
street  purposes,  see  Evidence,  748, 
2034, 

Eight  to  compensation  on  condemnation  ol, 
see  Eminent  Domain,  219,  245. 

Setting  off  advantages  from,  see  Damages, 
578, 

Ejectment  to  regain  possession  of  property 
over  which  higliway  has  been  estab- 
lished,  see  Ejectment,  4, 

Estoppel  of  city  to  open,  see  Estoppel,  11. 

Estoppel  to  change  street  line,  see  Estop- 
pel,   15. 

Presumption    as   to,   see   Evidence,   520. 

Presumption  of  consent  to  placing  of  name 
on  petition  for  opening  of,  see  Evi- 
dence,   168. 

Presumption  of  notice  to  one  whose  name 
appears  on  petition  to  lay  out,  see 
Evidence,  189. 

Mode  of  proving,  see  Evidence,  710. 

Injunction  against  taking  land  for,  see  In- 
junction, 25. 

Injunction  against  taking  before  payment 
for,  see  Injunction,  183. 

Injunction  against  maintenance  of  illegally 
opened  highway,  see  Injunction,  370, 
371. 
87  f..:.:-^). 


1378 


HIGHWAYS,  1.  b,  11.  a. 


EflFect  of  judgment  to  bar  riglits  of  munici- 
pality claiming  dedication  for  high- 
way purposes,  see  Judgment,  203. 

Riglit  of  property  owner  to  show  fraud  in 
passage  of  street-opening  ordinance, 
see  Municipal  Corporations,  61. 

Power  of  municipality  to  accept  grant  of 
easement  for,  see  Municipal  Corpora- 
tions, 307. 

Injury  to  abutting  property  from  negligence 
in  constructing,  see  Municipal  Corpo- 
rations, 324. 

Time  to  apply  for  new  trial  in  proceedings 
to  open,  see  New  Trial,  75. 

Extending  across  accretion  to  water's  edge, 
see  Waters,  112,  113. 

1.  Giving  a  private  way  a  name  does 
not  make  it  a  public  highway  or  thorough- 
fare. Bitello  V.  Lipson,  i6:  193,  69  Atl.  21, 
80  Conn.  497- 

2.  The  amount  and  character  of  work 
dont  upon  a  road  or  street  by  the  proper 
officer  is  immaterial  in  establishing  recogni- 
tion of  the  road  or  street  as  such,  if  it  is 
such  as  to  show  clearly  that  i*  was  work 
upon  the  road  or  street  for  the  public  bene- 
fit. Campbell  v.  Elkins,  2:  159,  52  S.  E.  220, 
58  W.  Va.  308. 

3.  The  court  will  not  presume  that  the 
commiss'oners  appointed  to  assess  damages 
sustained  by  the  opening  of  a  highway  con- 
sidered the  necessity,  in  the  proper  con- 
struction of  the  road,  of  diverting  the  water 
naturally  seeking  an  outlet  in  a  draw,  and 
conducting'  it  in  an  artificial  ditch  along 
the  highway  for  a  mile  or  more,  and  there 
discharging  it  in  such  a  manner  that  it  dam- 
ages the  land  of  a  neighboring  proprietor, 
or  that  the  latter  was  allowed  damage  for 
such  disposition  of  the  water.  Roe  v.  How- 
ard County,  5:  831,  106  N.  W.  587,  75  Neb. 
448. 

4.  Express  authority  is  necessary  to 
authorize  the  laying  out  of  a  highway  into 
a  navigable  body  of  water  for  the  purpose 
of  a  wharf  or  landing  place.  Highway 
Comrs.  V.  Ludwick,  15:  1170,  115  N.  W.  419, 
151  Mich.  498.  (Annotated) 

5.  The  court  will  adjudge  void  munici- 
pal ordinances  passed  for  the  purpose  of 
opening  and  widening  streets  for  the  exten- 
sion of  railway  switches  for  the  accommo- 
dation of  private  business  enterprises.  Kan- 
sas City  V.  Hyde,  7:  639,  96  S.  W.  201,  196 
Mo.  498. 

6.  A  petition  to  take  land  to  widen  a 
street  for  a  distance  of  three  blocks  will  be 
dismissed  in  toto  if  the  ordinance  under 
which  the  proceedings  are  instituted  is  in- 
valid as  to  certain  public  property,  the  tak- 
ing of  a  portion  of  which  is  an  essential 
part  of  the  improvement.  Moline  v.  Greene, 
37:  104,  96  N.  E.  911,  252  111.  475. 

By  prescription  or  user. 

Depriving  municipality  of  right  to  plead 
prescription  as  basis  for  title  to  public 
street,  see  Constitutional  Law,  65. 

Dedication  shown  by  user,  see  Dedication, 
13a,  14. 

7.  Working  and  improvement  are  nec- 
pssarv  to  vest  title  to  a  public  road  in  the 
Digest  1-52  I<.R.A.(N.S.) 


public,  under  a  statute  providing  that  all 
public  roads  that  have  been  used  for  a  cer- 
tain period  are  declared  to  be  lawful  roads, 
where  the  same  have  been  worked  and  kept 
up  at  the  expense  of  the  public.  State  v. 
Seattle,  27:  1188,  107  Pac.  827,  57  Wash. 
602. 

8.  The  establisliment  of  the  public  high- 
way in  some  manner  provided  by  statute  is 
necessary  to  constitute  an  acceptance  of  the 
congressional  grant  of  a  right  of  way  across 
public  land  and  perfect  the  grant;  and, 
therefore,  a  mere  user  short  of  the  time 
necessary  to  establish  title  by  adverse  pos- 
session is  not  sufficient.  Vogler  v.  Ander- 
son, 9:  1223,   89   Pac.  551,  46  Wash.   202. 

(Annotated) 
Acceptance. 
See  also  Dedication,  9. 

9.  Mere  travel  by  the  public  over  ways 
dedicated  to  public  use  is  not  sufficient  ac- 
ceptance to  make  them  public  high wa vs. 
Smith  v.  Smythe,  35:  524,  90  N  E.  1121, 
197   N.  Y.  457. 

10.  For  the  purposes  of  an  action  against 
a  city  for  an  injury  alleged  to  have  resulted 
from  a  defect  in  a  sidewalk  constructed 
along  the  side  of  a  building  and  bordering 
on  a  public  street,  but  on  land  belonging  to 
the  owner  of  the  building,  the  sidewalk  is 
sufficiently  recognized  as  a  public  walk  by 
the  grant,  by  the  city  council,  of  a  permit 
to  the  owners  of  the  building  to  construct, 
maintain,  and  operate  in  such  sidewalk  an 
elevator  in  connection  with  their  use  of 
the  building.  Post  v.  Clarksburg,  52:  773, 
81  S.  E.  562,  —  W.  Va.  — .  (Annotated) 

ft.  Width. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Evidence  of  purpose  of  widening  street,  see 
Evidence,  1609. 

Validity  of  contract  made  by  city  in  ac- 
quiring property  for  purpose  of  widen- 
ing street,  see  Municipal  Corpora- 
tions, 231. 

See  also  supra,  5,  6. 

II.  Title;  use;  obstruction. 

a.  In  general;  title  and  property  rights. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Estoppel  of  municipality  to  assert  title  to, 
see  Estoppel,  8,  9. 

Rights  and  title  of  public. 

Rights  as  to  trees  in  highways,  see  infra, 

II.  e. 
Title  to  alley,  see  Alleys,  1. 
Prescriptive     right    to     take     water     from 

springs  in  highway,  see  Waters,  313. 

11.  The  fee  to  the  streets  in  the  original 
town  of  Chicago  rests  in  the  city  of  Chi- 
cago. Tacoma  Safetv  Deposit  Co.  v.  Chi- 
cago, 31:  868,  93  N.  E.   153,  247  111.  192. 

12.  In  respect  to  the  rights  of  the  pub- 
lic  in   highways,   held   under   valid   dedica- 


HIGHWAYS,  II.  a. 


1379" 


tions  and  acceptances,  and  the  power  of  the 
legislature  over  the  same,  there  is  no  dis- 
tinction in  West  Virginia  between  the 
streets  of  incorporated  cities  and  towns  and 
country  roads.  Hardman  v.  Cabot,  7:  506, 
55  8.  E.  75G,   GO  W.  Va.  664. 

13.  An  easement  only  in  the  street  vests 
in  the  public,  leaving  the  ultimate  fee  in 
the  abutting  owner,  under  a  statute  pro- 
viding that  the  acknowledgment  and  record- 
ing of  a  plat  shall  be  held  in  law  and  in 
equity  to  be  a  conveyance  in  fee  simple  of 
the  premises  noted  as  donated  to  the  pub- 
lic, and  the  premises  intended  for  streets 
shall  be  lield  in  trust  for  the  uses  and  pur- 
poses intended  or  set  forth  in  the  plat. 
Cloverdale  Homes  v.  Cloverdale,  47:  607,  62 
So.   712,   182   Ala.   419. 

Rights   of   licensee. 

14.  Consent  by  municipal  ordinance  to 
the  use  of  the  city's  streets  by  a  corpora- 
tion chartered  with  power  to  use  them  up- 
on securing  consent  of  the  municipality  is 
a  license,  and  not  a  franchise.  Chicago  v. 
Chicago  Tcleph.  Co.  13:  1084,  82  N.  E.  607, 
230  111.  157. 

15.  Permission  by  a  municipality  to 
merchants  to  erect  hitching  posts  in  the 
street  near  their  places  of  business  may  be 
revoked  at  any  time,  even  though  the  postu 
have  been  maintained  for  more  than  twenty 
years.  Lacey  v.  Oskaloosa,  31:  853,  121 
N.    W.    542,    i43    Iowa,   704. 

Rights    and    title    of    abutting    oxrner 

generally. 
Rights  as  to  trees  or  materials  in  street,  see 

infra,  II.  e. 
Private  remedy  for  obstruction  of  street,  see 

infra,  88,  94,  95. 
Rights   as   against   railroads   in    street,   see 

infra,  96-101. 
Raising  for  first  time  on  appeal  question  of 

variance  between  pleading  and  proof  as 

to  fee  of  street,  see  Appeal  and  Errob, 

789. 
Injury  to  abutting  property  by  construction 

of  viaduct   in   street,   see  Appeal  and 

Error,  1165. 
Title  of  abutting  owner  to  center  of  street, 

see  Boundaries,  II.  b. 
Due  process  of  law  in  regulations  as  to  use 

of  highways,  see  Constitutional  Law, 

522. 
Prohibiting  exercise  of  right  of  access,  see 

Constitutional  Law,  363. 
Damages  to  abutting  owner  for  construction 

of  telegraph   or   telephone   line   in,   see 

Damages,  4,  551,  552,  557. 
Right  of  person  dedicating  land  for  highway 

to    natural    products    of    soil    growing 

therein,  see  Dedication,  15. 
Additional  servitude  on  highway,  see  Emi- 
nent Domain,  IV. 
Diversion  of  travel  on  street  as  interference 

with    rights    of    abutting    owners,    see 

Eminent  Domain,  189. 
Compensation  for  taking  of,  see  Eminent 

Domain,  225-232. 
Right  to  compensation   for  obstructing  ac- 
cess  to   street,   see   Eminent   Domain, 

198-201,  2.59,  260,  264,  270. 
Digest   1-52  L.R.A.(N.S.) 


Right  to  compensation  in  condemnation  pro- 
ceedings for  noise,  smoke,  etc.,  see  Emi- 
nent Domain,  265-268. 

Compensation  for  consequential  injuries 
from  construction  of  subway  in  street, 
see  Eminent  Domain,  274,  275. 

Estoppel  to  assert,  see  Estoppel,  156. 

Presumption  of  consent  of  abutting  owner 
to  use  of  highway  by  telegraph  com- 
pany, see  Evidence,  521. 

Evidence  on  question  of  damages  to  abut- 
\    ting  owner,  see  Evidence,  1696. 

Injunction  to  protect  rights  of,  see  In.tunc- 
TION,  I.  1. 

Injunction  to  protect  right  of  access,  see 
Injunction,  415. 

Enjoining  abutting  owner  from  excavating 
under  sidewalk,  see  Injunction,  369. 

Right  to  compel  removal  of  obstruction'  in 
street,  see  Nuisances,  84-87. 

Instructions  as  to  damages  for  taking  of, 
see  Trial,  995. 

See  also  infra,  65. 

16.  The  dedication  of  a  street  to  the  pub- 
lic does  not,  under  a  statute  vesting  the  fee 
of  the  street  in  the  public,  deprive  the  one 
making  it  of  the  right  to  extract  the  min- 
erals from  beneath  it  so  far  as  it  can  be 
done  without  interfering  with  the  street 
uses.  Leadville  v.  Bohn  Min.  Co.  8:  422, 
86  Pac.  1038,  37  Colo.  248.  (Annotated) 

17.  A  municipal  corporation  cannot  re- 
quire the  owner  of  the  fee  of  its  streets  to 
obtain  a  franchise  before  making  such  use 
of  the  soil  beneath  the  surface  of  the  street 
as  is  possible  without  interference  with  the 
public  rights.  Colegrove  Water  Co.  v. 
Hollywood,  13:  904,  90  Pac.  1053,  151  Cal. 
425. 

18.  The  owner  of  the  fee  of  a  street  may- 
enjoin  the  municipality  from  attempting  to 
tap,  by  means  of  a  well  located  in 
the  street,  the  vein  supplying  a  valuable 
well  of  mineral  water  on  his  adjoining  prop- 
ertv.  Hamby  v.  Dawson  Springs,  12:  1164^ 
104*^  S.  W.  2.59,  126  Ky.  451. 

(Annotated> 

19.  An  abutting  owner  having  the  fecy 
of  the  highway  may  use  the  untraveled  por- 
tion as  a  ditch  to  carry  water  to  his  prem- 
ises for  irrigation  purposes  so  long  as  he- 
does  not  create  a  nuisance,  or  interfere  with 
public  use  of  the  way.  Holm  y.  Montgom- 
ery, 34:  506,   113  Pac.   1115,  62  Wash.   ,398. 

( Annotated ) 
Easements  of  abutting  ovrner. 
Prohibiting  lot  owner  from  exercising  right 

of  access  to,  see  Constitutional  Law,. 

363. 
Damages  for  condemnation  of,  see  Damages^. 

III.  1,  4. 
What  constitutes  a  taking  or  damaging  of, 

see  Eminent  Domain,  III.  b,  2. 
Compensation   for  taking  or  damaging,  see 

Eminent  Domain,  225-232. 
Right  to  compensation  for  consequential  in- 
juries  to,    see   Eminent  Domain,   III. 

e,  4. 
Compensation    for    obstructing    access,    see 

Eminent   Domain,    198-201,   259,   260^ 

264,  270. 


1380 


HIGHWAYS,  II.  b. 


Injunction   to   protect   right   of   access,   see 

Injunction,  415. 
See  also  infra,  96-101. 

20.  The  easement  of  view  from  every 
part  of  the  public  street  belongs,  as  a  valu- 
able right,  to  one  owning  property  abutting 
on  the  street,  and  will  be  pro  cted  by  the 
courts  against  unlawful  encroachments. 
Bischof  V.  Merchants'  Nat  Bank,  5:  486,  106 
N.  W.  996,   75  Neb.  838.  (Annotated) 

21.  A  township  which,  in  opening  a  pub- 
lic road,  leaves  a  pass  way  for  cattle  be- 
neath it  for  the  accommodation  of  owners  of 
abutting  land,  which  it  maintains  for  a 
period  of  fifty  years,  is  not  liable  in  dam- 
ages in  an  action  of  trespass  when,  for  pub- 
lic convenience,  it  decides  to  close  the  pass 
way.  Snively  v.  Washington  Twp.  12:  918, 
67  Atl.  465,  218  Pa.  249. 

22.  The  right  of  the  owner  of  the  fee  of 
a  highway  to  utilize  it  for  any  purpose 
which  does  not  interfere  with  the  right  of 
the  public  does  not  include  the  right  to  have 
a  pass  way  for  cattle  maintained  under  it 
at  public  expense.  Snively  v.  Washington 
Twp.  12:  918,  67  Atl.  465,  218  Pa.  249. 

23.  The  facts  that  the  walls  of  a  pass 
way  foi*  cattle  under  a  strip  of  land  subse- 
quently appropriated  for  a  public  highway 
had  been  con.structed  by  the  landowner,  and 
that  the  public  authorities  permitted  them 
to  remain  for  fifty  years,  do  not  render  the 
township  liable  in  damages  when,  for  pub- 
lic convenience,  the  proper  authorities  close 
the  way.  Snively  v.  Washington  Twp.  12: 
918,  67  Atl.  465,  218  Pa.  249.       (Annotated) 

24.  A  lot  owner  has  a  special  and  pecul- 
iar right  not  given  to  other  citizens,  in  the 
particular  street  or  highway  on  which  his 
property  abuts,  since  it  affords  him  the 
means  of  going  to  and  from  his  premises; 
and  such  right  is  a  property  right  appurte- 
nant to  his  lot.  Sandpoint  v.  Doyle,  17: 
497,  95  Pac.  945,  14  Idaho,  749. 

25.  The  owner  of  a  lot  abutting  on  a 
street  or  highway  has  the  right  of  ingress 
and  egress,  and  may  maintain  an  action  for 
the  protection  of  such  right.  Sandpoint  v. 
Doyle,  17:  497,  95  Pac.  945,  14  Idaho,  749. 

26.  The  right  of  ingress  to  abutting 
property  from  a  public  street,  and  egress 
from  the  property  to  the  street,  is  an  in- 
cident of  ownership,  and  constitutes  a  prop- 
erty right.  Crawford  v.  Marion,  35:  193, 
69  S.  E.  763,  154  N.  C.  73. 

27.  Since  owners  of  property  abutting 
on  a  highway  have  the  absolute  right  of 
access  thereto,  a  statute  empowering  com- 
missioners to  make  reasonable  rules  and 
regulations  concerning  the  use  of  a  boule- 
vard, and  providing  that  no  connections 
therewith  shall  be  allowed  without  a  permit 
from  the  commissioners,  does  not  authorize 
the  refusal  of  a  permit.  Goodfellow  Tire 
€0.  V.  Hurlbut,  30:  1074,  128  N.  W.  410,  163 
Midi.   249.  (Annotated) 

28.  A  village  which  has  constructed  a 
bridge  450  feet  long  across  a  small  stream 
25  feet  wide  and  the  adjacent  ravine  or  de- 
pression in  the  natural  surface  of  the 
ground,  and  has  built  the  bridge  at  a  height 
of  20  feet  from  the  ground  at  a  place  where 

Digest   1-52  L.R.A.(N.S.) 


it  passes  an  abutting  property  owner'*  lot, 
is  without  power  and  authority  uiuiuaiificil- 
ly  to  prohibit  the  property  owner  fr;.ni 
erecting  a  platform  on  his  own  lot  to  such 
a  height  as  to  enable  him  to  go  from  hi* 
building  to  the  bridge,  and  to  conitect  such 
platform  with  the  bridge  by  proper  and 
substantial  railings,  and  to  exercise  in  such 
manner  the  right  of  ingress  and  egress. 
Sandpoint  v.  Doyle,  17:  497,  95  Pac.  945,  14 
Idaho,  749. 

Private  remedies  of  abutter. 
Remedy   for   obstruction,    see   infra,   87-89, 

94,  95. 
Remedy   for   wrongful  injury  to  trees,^  seo 

infra,  106. 

29.  An  abutting  property  owner  cannot 
recover  damages  for  the  doubling  of  a  single 
track  electric  railway  in  the  street  in  front 
of  his  property,  because  of  increased  danger 
from  collision  with  passing  cars,  since  tliia 
danger  is  common  to  the  public  generally. 
Birmingham  R.  Light  &  Power  Co.  v.  Smver, 
47:  597,  61  So.  354,  181   Ala.   121. 

30.  The  owners  of  land  abutting  upon  a 
public  street  cannot  maintain  an  action  to 
enjoin  the  maintenance  of  a  porch  or  wooden 
awning  erected  by  an  adjoining  owner  in 
front  of  his  premises,  and  extending  over 
the  sidewalk  located  in  the  street,  where 
the  awning  does  not  interfere  with  the  plain- 
tiffs' access  nor  with  their  right  of  air,  al- 
though the  view  of  the  sidewalk  from  the 
second  story  window  is  obstructed  for  some 
distance,  but  it  is  not  shown  that  this  af- 
fected the  actual  or  rental  value  of  the 
premises.  Davis  v.  Spragg,  48:  173,  79  S. 
E.   652,   72    W.   Va.    672.  (Annotated) 

31.  The  right  of  an  owner  of  premises 
abutting  on  a  highway  to  use  the  highway 
for  the  purpose  of  loading  and  unloading 
goods  is  a  right  enjoyed  by  him  as  one  of 
the  public  entitled  to  use  the  higliway,  and 
not  a  private  right  which  entitles  him  to 
restrain  a  local  authority,  acting  bona  fide 
under  statutory  powers,  from  erecting  a 
lamp  standard  in  the  highway  adjoining  his 
premises,  which  interferes  with  the  conven- 
ient loading  and  unloading  of  goo^s.  W,  H. 
Chaplin  &  Co.  v.  Westminster,  4  B.  R.  C. 
618,  [1901]  2  Ch.  329.  Also  Reported  in 
70  L.  J.  Ch.  N.  S.  679,  65  J.  P.  661,  49 
Week.  Rep.  586,  85  L.  T.  N.  S.  88,  17  Times 
L.  R.  576. 

b.  Uses;  what  allowed  in  street 
generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Maintenance  of  cellar  way  in  alley,  see  Ajl- 
LEYS,  3. 

Use  of  automobiles  on,  see  Automobiles; 
Constitutional  Law,  158. 

Riding  of  bicycles  on  sidewalk,  see  Bicy- 
cles, 1. 

Discrimination  against  foreign  corporations 
in  use  of,  see  Commerce,  37. 

Equal  protection  and  privileges  as  to,  see 
Constitutional  Law,  253-255. 


HIGHWAYS,  II.  b. 


1381 


Constitutionality  of  statute  against  loiter- 
ing on,  see  Constitutional  Law,  351. 
Due    process   in    regulating,    see    Constitu- 

TiONAi,  Law,  522. 
Police    power    as    to,    see    Constitutional 
Law,  G49. 

Interference  by  courts  with  decision  of 
board  of  highway  officers,  see  Courts, 
72. 

Lease  to  railroad  of  lands  granted  to  mu- 
nicipality for  street  purposes,  see  Cove- 
nants AND  Conditions,  26,  87. 

Right  of  municipality  to  construct  sewer  in 
alley,  see  Drains  and  Sewers,  6. 

Additional  burden  on,  see  Eminent  Domain, 
IV. 

Equity  jurisdiction  to  review  revocation  of 
privileges  in,  see  Equity,  19. 

Estoppel  of  municipality  to  demand  com- 
pensation for  use  of  area  under  side- 
walk, see  Estoppel,  17. 

Right  of  way  of  fire  department  on,  see 
Fire   Insurance  Patrol,  2. 

Compelling  location  of  hydrants  in  highway, 
see  Injunction,  33. 

Injunction  against  excavating  so  as  to  in- 
terfere with  conduits,  see  Injunction, 
369. 

License  of  vehicles  on,  see  License,  26-28, 
39,  76-78,  107-110,  116,  128,  129,  131. 

Mandamus  to  compel  issue  of  permit  to  ex- 
cavate street,  see  Mandamus,  109. 

Municipal  regulations  as  to,  see  Municipal 
Corporations,  II.  c,  4,  b. 

Display  of  fireworks  in,  as  nuisance,  see 
Municipal  Corporations,  350. 

Wire  stretched  across  as  nuisance,  see  Nui- 
sances, 8. 

Sale  of  liquor  in,  see  Pleading,  432. 

Title  of  statute  regulating  vehicles,  see 
Statutes,  110,  111. 

Prescriptive-  right  to  conduct  water  through 
culvert  in,  see  Waters,  318. 

Grant  of  privileges  in,  to  water  company, 
see  Waters,  335,  336. 

32.  Individuals  and  corporations  permit- 
ted by  municipal  ordinances  to  occupy  the 
streets  and  public  ways  of  a  citj'  for  law- 
ful purposes,  such  as  railroad  tracks,  poles, 
wires,  gas  and  water  pipes,  hold  such  rights 
in  subordination  to  the  superior  rights  of 
the  public,  and  cannot  claim  compensation 
from  the  city  for  interference  with  fran- 
chise rights  or  property  due  to  the  con- 
struction in  the  streets,  with  reasonable 
care  and  skill,  of  sewers  demanded  by  the 
public  interest;  nor  has  the  city  authority 
voluntarily  to  burden  itself  with  the  pay- 
ment of  damages  caused  thereby  Ander- 
son V.  Fuller,  6:  1026,  41  So.  684,  51  Fla. 
380.  (Annotated) 

By  private  corporations. 
Discrimination  against  foreign  corporations 

in  use  of,  see  Commerce,  37. 
Estoppel  to  complain  of,  see  Estoppel,  156. 
33.  A  contract  by  a  board  of  supervisors 
to  purchase  electric  power  from  a  corpora- 
tion occupying  a  highway  with  its  power 
line  for  purposes  connected  with  the  main- 
tenance of  the  highway  cannot  validate  an 
entry  by  the  corporation  upon  the  highway 
Digest  1-52  L.R.A.(]S.S.) 


for   purely   commercial   purposes.     Gurnsey 
V.   Northern   California   Power   Co.   36:  185,. 
117  Pac.  906,  160  Cal.  699. 
Regulating  slow-moving  vehicles. 

34.  The  legislature  may  require  slow- 
moving  vehicles  to  keep  to  the  right  side 
of  the  street  at  points  where  traffic  is 
large  or  the  streets  are  usually  congested^ 
notwithstanding  there  may  be  times  when 
such  streets  at  such  points  are  free  fronv 
heavy  traffic  or  congestion.  State  v.  Bus- 
sian,  31:682,  127  N.  W.  495,  111  Minn.- 
488.  (Annotated) 

35.  Under  a  statute  requiring  slow- 
moving  vehicles  to  keep  to  the  right  side 
of  the  street  at  points  where  traffic  is  large 
or  the  streets  are  usually  congested,  a  con- 
viction may  be  had  for  driving  a  heavily 
loaded  vehicle  along  the  center  of  such  a 
street,  although  at  the  time  of  the  com- 
mission of  the  offense  no  other  vehicles 
were  moving  on  the  street,  and  the  accused 
was  not  blocking  any  traffic,  but  merely 
drove  on  that  part  of  the  street  most  con- 
venient for  him.  State  v.  Russian,  31: 
682,  127  N.  W.  495,  111  Minn.  488. 

36.  An  ordinance  requiring  loaded  ve- 
hicles carrying  goods  to  or  from  premises 
abutting  on  a  park  way  to  enter  on  the  way 
at  the  cross  street  nearest  the  premises  in 
the  direction  in  which  the  load  is  moving, 
and  forbidding  it  to  proceed  thereon  further 
than  the  nearest  cross  street  thereafter,  will 
not  be  construed  to  forbid  the  loaded  vehi- 
cles from  leaving  the  premises  where  the 
goods  were  delivered  or  received.  Illinois 
Malleable  Iron  Co.  v.  Commissioners  of 
Lincoln  Park,  51:  1203,  105  N.  E.  336,  263 
111.  446. 
Coasting. 

37.  Coasting  upon  a  public  street  of  a 
city  is  not  a  nuisance  per  se.    Lynch  v.  Pub- 
lice  Service  R.  Co.   (N.  J.  Err.  &  App.)   42: 
865,  83  Atl.  382,  82  N.  J.  L.  712. 
Bridge  over. 

38.  The  owner  of  lots  abutting  on  op- 
posite sides  of  the  street  may,  under  a  li- 
cense or  permit  from  the  city  council,  rev- 
ocable at  its  pleasure,  construct  an  over- 
head bridge  for  the  purpose  of  transporting 
freight  over  the  street  and  relieving  the 
street  of  a  serious  obstruction  to  or  inter- 
ference with  traffic  along  the  street;  the 
bridge  being  so  constructed  that  its  sup- 
ports will  not  be  in  the  street,  and  so  that 
it  will  not  interfere  with  the  light  and  air 
of  adjoining  abutting  owners.  Kellogg  v. 
Cincinnati  Traction  Co.  23:  158,  88  N.  E. 
882.  80  Ohio  St.  331.  (Annotated) 
Vault  under. 
Duty  to  keep  covering  safe,  see  infra,  307- 

.309. 
Compensation   for   use   of   area   underneath 

sidewalk,  see  Estoppel,  6;   Municipal 

Corporations,  9(5. 
Presumption  of  compliance  with  ordinance 

in    making    excavation,    see    Evidence, 

170. 
Power  of  municipality  summarily  to  declare 

vault  a  nuisance,  see  Municipal  Cor- 
porations, 142. 
39.  An  abutting  owner  receiving  author- 


1382 


HIGHWAYS,  II.  b. 


ity  from  the  municipality  to  construct  a 
vault  under  the  sidewalk,  the  fee  of  which 
is  in  the  municipality,  must  so  exercise  his 
authority  as  not  to  injure  pipes  which  have 
been  laid  by  a  public  service  corporation  in 
the  street  under  authority  of  the  municipal- 
ity. New  York  Steam  Co.  v.  Foundation  Co. 
31 :  470,  87  N.  E.  765,  195  N.  Y.  43. 

40.  A  municipal  corporation  which  has 
granted  a  public-service  corporation  a  right 
to  lay  a  pipe  in  a  street,  the  fee  of  which 
belongs  to  itself,  cannot  confer  authority 
upon  an  abutting  owner  to  injure  such  pipe 
in  the  construction  of  a  vault  which  it  per- 
mits him  to  place  under  the  sidewalk.  New 
Y^ork  Steam  Co.  v.  Foundation  Co.  21 :  470, 
87  N.  E.  765,  195  N.  W.  43. 

41.  Permission  granted  by  a  municipal 
corporation  to  construct  a  vault  beneath  its 
street  does  not  impliedly  authorize  injury 
to  structures  lawfully  in  the  street,  by  the 
driving  of  the  piling  necessary  to  perform 
the  work.  New  York  Steam  Co.  v.  Founda- 
tion Co.  21:  470,  87  N.  E.  765,  195  N.  Y.  43. 

42.  Under  charter  authority  to  remove 
obstructions  from  sidewalk  and  to  regulate 
the  building  of  bulkheads,  cellars,  and  base- 
ment ways  and  other  structures  projecting 
upon  and  over  adjoining  excavations 
through  and  under  the  sidewalks  of  the 
city,  a  municipal  corporation  has  power  to 
grant  the  right  to  a  lot  owner  to  excavate 
a  room  under  an  alley  adjacent  to  his  lot, 
to  be  used  as  a  boiler  and  coal  room,  under 
suitable  regulation  protecting  the  public  in 
the  free,  safe,  and  unobstructed  use  of  the 
alley.  Tiernan  v.  Lincoln,  32:  1034,  130 
N.   W.   280,  88  Neb.   662. 

Axp^nings. 

Liability  for  injury  bv  fall  of,  see  infra, 
291-295. 

Injury  to  pedestrian  by  awning  being  re- 
paired by  independent  contractor,  see 
Master  and  Servant,  1010. 

Ordinance  as  to,  see  Municipal  Corpora- 
tions, 102,  103;  Trial,  192. 

See  also  supra,  30. 

43.  A  porch  or  wooden  awning  erected 
by  the  owner  qf  a  building  abutting  on  the 
street,  so  as  to  extend  to  the  outer  edge  of 
a  sidewalk  in  the  street,  without  lawful 
authority,  is  a  public  nuisance,  whether  it 
materially  interferes  with  the  public 
travel  or  not.  Davis  v.  Spragg,  48:  173,  70 
S.  E.  652,  72  W.  Va.  672. 

Gas  or  x^ater  pipes. 

Discrimination  against  foreign  corporation 

in  use  of,  see  Commerce,  37. 
Forbidding    maintenance     of     leaky    water 

pipes    in    street,    see    Constitutional 

Law,  157:  Evidence,  1879,  1990. 
Exercise  of  right  of  eminent  domain  for  pipe 

line,  see  Eminent  Domain,  14,  49,  136- 

138,  154,  155. 
Pipe    line    in,    as    additional    servitude,    see 

Eminent  Domain,  297-300. 
Mandamus   to   compel   alderman   to   permit 

location  of  pipe  line  in,  see  Mandamus, 

42. 
Right  of  municipality  to  grant  franchise  to 

lay  gas  pipes  in,  see  Mumcifa.l  Corpo- 

kations,  92. 
Digest  1-52  I<.R.A.(N.S.) 


Municipal  power  over  gas  pipes  in  street, 
see  Municipal  Corporations,  93-95. 

Breach  of  contract  with  municipality  to  lay 
gas  pipes,  see  Municipal  Corporations, 
232. 

Power  of  municipality  to  permit  opening  of 
streets  to  lav,  see  Municipal  Corpora- 
tions, 232. 

See  also,  supra,  30,  32. 

44.  The  owner  of  the  fee  has  a  right  to 
use  the  subsurface  of  a  public  street,  sub- 
ject to  the  superior  right  of  easement  there- 
in in  favor  of  the  municipality  for  water, 
gas,  and  sewer  mains,  etc.,  provided  he  does 
not  materially  interfere  with  travel  on  the 
surface.  Lvnch  v.  Xorthview,  52:  1038,  SI 
S.  E.  833,  73  W.  Va.  609.  (Annotated) 

45.  In  the  absence  of  a  municipal  ordi- 
nance prescribing  any  rules  or  regulations 
governing  the  conduct  of  citizens  in  making 
excavations  in  the  street,  it  is  not  unlaw- 
ful for  the  owner  of  the  fee  to  dig  a  ditch 
and  lay  a  gas  pipe  line  therein,  provided 
he  leaves  the  surface  in  as  good  condition 
as  he  found  it,  and  does  not  materially 
interrupt  travel  thereon.  Lvnch  v.  North- 
view,  52:  1038,  81  S.  E.  833,  73  W.  Va.  609. 

46.  A  mere  license  to  lay  gas  mains  in 
a  public  highway  may  be  revoked  prior  to 
the  performance  of  any  substantial  work 
under  its  terms.  Elizabeth  Citv  v.  Banks, 
22:  925,  64  S.  E.  189,  150  N.  C.  407. 

47.  Under  a  statute  permitting  a  peti- 
tioner for  a  location  of  a  pipe  line  to  appeal 
to  the  gas  commissioners  if  the  aldermen 
neglect  for  a  period  of  thirty  days  to  grant  a 
locatii^n,  petitioner  has  a  right  to  treat  ac- 
tion taken  by  the  aldermen  after  the  expira- 
tion of  the  thirty  days  as  a  nullity.  Cheney 
v.  Barker,  16:  436,  84  N.  E.  492,  198  Mass. 
356. 

48.  The  right  to  convey  natural  gas  for 
public  use  along  a  highway  by  means  of 
pipes  laid  underground  can  be  exercised 
(mly  with  the  consent  of  the  authorities  hav- 
ing control  of  the  streets  and  roads,  and  un- 
der such  restrictions  as  they,  in  the  exer- 
cise of  their  discretion,  may  see  fit  to  im- 
pose. Hardman  v.  Cabot,  7:  506,  55  S.  E. 
756,  60  W.  Va.  664. 

49.  Permission  to  lay  a  pipe  line  under 
the  surface  of  a  public  road  for  the  purpose 
of  conveying  natural  gas  for  public  use  may 
be  granted  by  the  county  court  to  a  natural 
person.  Hardman  v.  Cabot,  7:  506,  55  S.  E. 
756,  60  W.  Va.  664. 

50.  Aldermen  have  no  authority  to  re- 
fuse a  permit  to  excavate  a  street  through 
which  a  gas  company  has  received  permis- 
sion to  locate  a  pipe  line,  although  the  stat- 
ute provides  that  the  action  of  the  company 
must  be  "subject  to  such  regulations  and  re- 
strictions as  to  the  manner  and  time  of  con- 
ducting the  work"  as  the  aldermen  shall  pre- 
scribe. Cheney  v.  Barker,  16:  436,  84  N.  E. 
492,  198  Mass.  356. 

51.  The  owner  of  the  fee  of  a  city  street 
has  the  right  to  lay  a  water  pipe  for  his 
own  use  beneath  the  surface  so  far  as  he 
can  do  so  without  impeding  the  public  use, 
and,  for  that  purpose,  may  excavate  the 
soil,  subje(!t  to  such  reatrictions  by  the  mu- 


HIGHWAYS,  II.  b. 


1383 


nicipality  as  will  insure  the  least  interrup- 
tion to  the  public  easement.  Colegrove 
Water  Co.  v.  Hollvwood,  13:  904,  90  Pac. 
1053,    151    Cal.   425.*  (Annotated) 

52.  One  having  a  right  to  conduct  water 
across  a  highway  in  a  certain  manner  can- 
not enlarge  or  change  the  use  by  enlarging 
or  changing  the  character  of  his  conduits, 
or  laying  them  on  a  new  line.  Colegrove 
Water  Co.  v.  Hollywood,  13:  904,  90  Pac 
1053,  151  Cal.  425. 

Electric  light  wires,  poles,  and  con- 
duits. 

Injury  to  trees  on  installing  plant,  see 
infra,  114-117. 

Injuries  caused  by  trolley  pole,  see  infra, 
212,  213. 

Regulation  of  poles  in  street  as  interference 
with  interstate  commerce,  see  Com* 
MEKCE,  29. 

Uses  and  dangers  of  electricity  generally, 
see  Electricity. 

As  additional  servitude,  see  Eminent  Do- 
main, 288. 

Judicial  notice  as  to,  see  Evidence,  56. 

Burden  of  proving  right  to  place  wires  in 
streets,  see  Evidence,  518. 

Laches  to  bar  right  to  compel  removal  of 
conduits,  see  Limitation  of  Actions, 
70. 

Municipal  regulation  as  to,  see  Municipal 
Corpokations,  197,  98. 

Sufficiency  of  title  of  ordinance  as  to,  see 
Municipal  Corporations,  68. 

Trespass  in  attempting  to  prevent  placing 
of  telephone  pole  in  highway;  see  Tres- 
pass, 8. 

53.  The  transmission  of  an  electric  cur- 
rent by  wire  on  a  highway,  in  order  to  fur- 
nish light,  heat,  and  power  to  the  inhabit- 
ants residing  along  such  electric  line,  is  a 
legal  and  proper  use  of  the  highway.  State 
ex  rel.  Bartlett  v.  Weber,  43:  1033,  127  Pac. 
636,  88  Kan.  175. 

54.  In  the  absence  of  statutory  regula- 
tion, a  line  for  the  transmission  of  electric 
current  by  wire  in  order  to  furnish  light, 
heat,  and  power  to  the  inhabitants  residing 
along  such  line,  may  be  erected  and  main- 
tained upon  a  highway  by  a  partnership 
without  a  franchise  or  special  license  from 
any  governmental  agency,  providing  it  is 
done  in  a  way  that  will  not  seriously  im- 
pede or  endanger  public  travel,  or  unneces- 
sarily interfere  with  the  reasonable  use  of 
the  highway  by  other  members  of  the  pub- 
lic, and  so  as  not  to  invade  the  rights  of 
the  owners  of  abutting  lands.  State  ex  rel. 
Bartlett  v.  Weber,  43:  1033,  127  Pac.  536, 
88   Kan.  17.5.  (Annotated) 

55.  Mimicipal  regulations  as  to  conduits 
in  the  public  streets  for  electric  wires  will 
not  control  the  right  of  an  electric  company 
which,  having  acquired  municipal  consent 
to  place  its  wires  in  the  streets,  has  char- 
ter authority  to  alter  its  system  of  distribu- 
tion. Allegheny  County  Light  Co.  v.  Booth, 
9:  404,  66  Atl.  72,  216  Pa.  564. 

56.  Municipal  authority  to  an  electric 
lighting  company  to  erect  and  maintain  in 
the  public  streets  poles  and  wires  for  con- 
ducting electricity  does  not  preclude  its 
Digest  1-52  L.B.A.(N.S.) 


placing  the  wires  in  conduits  under  the 
sidewalks  where  its  charter  empowers  it  to 
alter  its  system  of  distribution.  Allegheny 
County  Light  Co.  v.  Booth,  9:  404,  66  Atl. 
72,  216  Pa.  564. 

57.  Charter  authority  to  an  electric 
lighting  company  to  enter  upon  any  public 
street  of  a  municipal  corporation  for  the 
purpose  of  its  business  includes  the  right 
to  lay  conduits  beneath  the  sidewalks.  Al- 
legheny County  Light  Co.  v.  Booth,  g:  404, 
66  Atl.  72,  216  Pa.  564.  (Annotated) 
Telegraph  and  telephone  lines. 
Telephone  poles  in  alleys,  see  Alleys,  2. 
As  additional  servitude,  see  Emine.xt  Do- 
main, 291-296. 

Presumption  of  rights  in  highway  from 
lapse  of  time,  see  Evidence,  521. 

Injunction  against,  see  Injunction,  38,  380. 

License  tax  for  use  of,  by  telephone  com- 
pany, see  License,  20. 

Enforcing  by  mandamus  duty  of  telephone 
company  using  highway,  see  Manda- 
mus, 15. 

Respective  rights  of  railroad  and  telephone 
company  at  place  where  wires  cross 
tracks,  see  Railroads,  46,  47. 

58.  A  statute  granting  persons  engaged 
in  generating  and  transmitting  electric  cur- 
rents for  sale,  for  power  or  other  purposes 
a  right  of  way  for  poles  and  wires  along, 
within,  and  across  any  of  the  public  high- 
ways, does  not  apnly  to  companies  whose 
operations  are  confined  exclusively  to  tele- 
phone service.  Alt  v.  State,  35:  1212,  129 
N.  W.  432,  88  Neb.  259. 

59.  The  words  "all  road  crossings,"  as 
used  in  a  statute  granting  telephone  and 
telegraph  companies  the  right  of  way  along 
any  public  road,  and  providing  that  wires 
shall  be  placed  at  a  height  of  not  less  than 
20  feet  above  all  road  crossings,  refers  to 
private  as  well  as  public  roads.  Weaver  v. 
Dawson  County  Mut.  Teleph.  Co.  22:  1189, 
118  N.  W.  650,  82  Neb.  696. 

60.  A  city  which  by  ordinance  has  per- 
mitted a  telephone  company  to  erect  its 
poles  and  wires  in  the  streets,  and  has 
thereby  invited  the  company  to  make  in- 
vestments and  expenditures,  which  it  hag 
made  in  good  faith  and  in  reliance  on  the 
ordinance,  cannot  arbitrarily  impose  upon 
the  company  by  subsequent  regulations, 
without  necessity  or  the  demands  of  pub- 
lic convenience,  additional  burdens  which 
are  clearly  beyond  the  reasonable  exercise 
of  the  police  power.  Plattsmouth  v.  Ne- 
braska Teleph.  Co.  14:  654,  114  N.  W.  588, 
80  Neb.  460.  (Annotated) 

61.  The  authorities  of  a  city  or  incor- 
porated town  or  village  may  grant  to  a 
telephone  company  the  use  of  the  streets, 
alleys,  and  public  groimds  of  the  municipal- 
ity, for  the  public  purpose  of  constructing 
and  maintaining  a  telephone  system  therein. 
Plattsmouth  v.  Nebraska  Teleph.  Co.  14: 
654,  114  N.  W.  588,  80  Neb.  460. 

62.  The  moving  of  buildings  along 
streets  is  not  within  the  meaning  of  the 
words  "other  public  uses,"  in  a  statute 
granting  telephone  companies  the  right  to 
place  their  wires  therein  provided  that  they 


1384 


HIGHWAYS,  II.  c. 


shall  not  interfere  with  other  public  uses. 
Kibbie  Teleph.  Co.  v.  Landphere,  i6:  68g, 
115  N.  W.  244,  151  Mich.  309. 

()3.  The  property  rights  of  a  telephone 
company  which  has  placed  its  wires  in  pub- 
lic streets  in  accordance  with  the  designa- 
tion and  direction  of  the  municipal  authori- 
ties are  the  same  as  though  it  were  acting 
under  the  terms  of  an  ordinance.  Kibbie 
Teleph.  Co.  v.  Landphere,  i6:  689,  115  N.  W. 
244,   151  Mich.   309. 

64.  A  city  ordinance  extending  to  a  tele- 
phone company  the  right  to  use  the  streets, 
alleys,  and  public  grounds  of  the  city  in 
the  construction,  operation,  and  mainte- 
nance of  its  plant  or  system,  and  which  does 
not,  in  any  of  its  provisions,  indicate  an 
attempt  to  exclude  other  like  corporations 
or  companies  from  a  like  privilege,  is  not 
the  grant  of  an  exclusive  right  or  privilege. 
Plattsmouth  v.  Nebraska  Teleph.  Co.  14: 
654,  114  N.  W.  588,  80  Neb.  4G0. 

65.  A  telegraph  company  which  has  a 
right,  as  against  the  abutting  owner,  to 
maintain  a  line  of  poles  along  the  highway 
in  front  of  his  property,  has  included  there- 
in the  right  to  set  additional  poles  where 
necessary  to  strengthen  the  line  because 
of  the  weight  of  additional  wires.  Western 
U.  Teleg.  Co.  v.  Polhemus,  29:  465,  178  Fed. 
904,  102  C.  C.  A.  105. 

Traction  engines. 

66.  An  unlawful  use  of  a  highway  by  a 
traction  engine  cannot,  against  even  one  ob- 
jector, be  made  lawful  by  petition  of  a  large 
number  of  persons  living  along  the  road. 
Covington  County  v.  Collins,  14:  1087,  45 
So.  854,  92  Miss.  330. 

67.  The  daily  use  of  a  public  highway  by 
a  traction  engine  drawing  from  two  to  four 
wagons  loaded  with  lumber,  although  not  an 
injury  to  the  roadway  itself,  may  be  pro- 
hibited by  the  board  of  supervisors  as  dan- 
gerous to  travel,  and  a  nuisance.  Covington 
County  V.  Collins,  14:  1087,  45  So.  854,  92 
Miss.  330. 

Moving  honses. 

Cutting    of    electric    wires   by    one    moving 

building  along  street,  see  Injunction, 

112,  438. 
Trimming    of    trees    overhanging    street    to 

permit  moving  of  house,  see  Trees,  2. 
See  also  supra,  62. 

68.  There  is  no  right  to  move  a  building 
along  a  public  street  upon  which  an  electric 
railway  has  been  lawfully  constructed,  to 
the  serious  interference  with  the  operation 
of  the  cars  and  the  wires  by  which  they  are 
operated.  Fort  Madison  Street  R.  Co.  v. 
Hughes,  14:  448,  114  N.  W.  10,  137  Iowa, 
122.  (Annotated) 

69.  A  municipal  corporation,  having 
plenary  powers  over  its  streets,  may  author- 
ize the  moving  of  a  house  along  them,  and 
require  an  electric  railway  company  whose 
wires  will  be  interfered  with  thereby  to 
move  them  to  permit  the  house  to  pass. 
Indiana  R.  Co.  v.  Calvert,  10:  780,  80  N.  E. 
961,  168  Ind.  321. 

70.  A  permit  to  move  a  building  along  a 
street  will  not  justify  the  moving  of  a 
building  larger  than  the  one  described  there- 
Digest  1-52  L.B.A.(N.S.) 


in.     Com.  v.   Byard,   20:  814,  86  N.  E.  285, 
200  Mass.   175. 
Lnnch    \(ragon. 

71.  The  board  of  aldermen  has  no  power 
to  authorize  the  maintenance  of  a  lunch 
wagon  in  a  public  street,  wliere,  b\-  ordi- 
nance enacted  under  statutory  authority, 
the  power  to  regulate  wagons  lias  been  con- 
ferred upon  the  police  department.  Com. 
V.  Morrison,  14:  194,  83  N.  E.  415,  197  Mass. 
199. 

72.  A  hawker's  and  peddler's  license  does 
not  justify  maintaining  a  lunch  wagon  at  a 
fixed  place  in  a  public  street  for  hours  at  a 
time.  Com.  v.  Morrison,  14:  194,  83  N.  E. 
415,  197  Mass.  199. 

73.  A  municipal  corporation  cannot  au- 
thorize the  maintenance  at  a  fixed  place  in 
a  public  highway  of  a  lunch  wagon  for 
many  consecutive  hours  night  after  night  in 
such  a  manner  as  to  make,  during  the  time 
it  is  in  place,  a  practical  appropriation  of 
the  street  to  the  business  of  the  owner. 
Com.  v.  Morrison,  14:  194,  83  N.  E.  415,  197 
Mass.  199. 

c.  Obstruction  generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Liability  of  city  for  injury  by  obstruction, 
see  infra,  IV.  a,  4. 

Liability  of  individuals  for  obstruction,  see 
infra,  271-276. 

Equitable  relief  from  wrongful  obstruction 
of  public  street,  see  Equity,  38. 

Surplusage  in  indictment  for  obstructing 
highway,  see  Indictment,  etc.,  17. 

Sufficiency  of  indictment  charging  obstruc- 
tion of  highway,  see  Indictment,  etc., 
137. 

Injunction  against,  see  Injunction,  378, 
379;  Nuisances,  137. 

Requiring  removal  of  hitching  posts  from, 
see  Municipal  Corporations,  108-110. 

By  operation  of  turf  exchange,  see  Nui- 
sances, 59. 

As  proximate  cause  of  injury,  see  Proxi- 
mate Cause,  112,  114. 

74.  Public  highways  belong,  from  side  to 
side  and  from  end  to  end,  to  the  public,  and 
any  permanent  structure  or  purpresture 
which  materially  encroaches  on  the  public 
street  and  impedes  travel  is  a  nuisance 
per  se;  but,  in  a  proper  case,  such  obstruc- 
tions may  be  authorized  by  competent  au- 
thority. Bischof  v.  Merchants'  Nat.  Bank, 
5:  486,   106  N.  W.  996,  75  Neb.  8.38. 

75.  The  entire  width  of  a  highway  as 
laid  out  is  subject  to  the  publife  easement 
of  passage,  and,  if  a  less  width  is  graded 
and  worked  for  travel,  or  if  a  bridge  or 
culvert  does  not  extend  to  the  entire  width, 
the  public  rights  of  passage  are  not  there- 
by limited  in  favor  of  one  who  places  an 
unauthorized  or  improprr  struclure  within 
the  highway  limits.  Opdycko  v.  Public 
Service  R.  Co.  (N.  J.  Err.  &  App.)  29:  71, 
76  Atl.  1032,  78  N.  J.  L.  576. 

76.  The  unauthorized  construction,  by  aa 


HIGHWAYS,  II.  c. 


1385 


abutting  owner,  of  a  curb  and  sidewalk  in 
the  street,  is  not  an  encroachment  of  which 
the  opposite  owner  can  complain.  Parsons 
V.  Litchfield  County  Hospital,  i6:  1038,  69 
Atl.  352,  80  Conn.  525.  (Annotated) 

Building  materials. 

77.  A  permit  by  a  city  to  use  part  of  a 
street  for  the  placing  of  building  materials 
for  use  in  the  construction  of  a  building 
on  adjacent  property  is  a  mere  regulation 
of  the  right  of  the  property  owner  to  make 
such  use  of  the  street,  and  not  a  license 
to  do  an  act  in  the  street  which  but  for 
such  license  would  be  illegal  or  a  nuisance. 
Columbus  V.  Penrod,  3:  386,  76  N.  E.  826,  73 
Ohio  St.  209. 

Buildings   in. 

Injury    caused    by    building    in    street,    see 

infra,  219,  220. 
Injunction  against,  see  Injunction,  378. 

78.  Authority  to  locate  a  voting  booth 
in  the  traveled  part  of  a  highway  is  not 
conferred  upon  the  public  officers  by  a  stat- 
ute directing  them  to  designate  a  polling 
place  in  a  public,  orderly,  and  convenient 
portion  of  the  precinct,  and,  if  no  such  place 
can  be  found  within  the  precinct,  then  in 
an  adjoining  one.  Haberlil  v.  Boston,  4:  571, 
76  N.  E.  907,  190  Mass.  358.  (Annotated) 
Of  sideivalk. 

Liability  for  injury  by  obatruction,  see  in- 
fra, IV.  a,  4. 

Prescriptive  right  to  maintain  steps  upon 
sidewalk,  see  Adverse  Possession,  49. 

Jurisdiction  of  equity  of  suit  to  remove 
structure  from  sidewalk,  see  Equity, 
12. 

Estoppel  of  municipality  to  remove  obstruc- 
tions from,  see  Estoppel,  6. 

Wrongful  arrest  for  obstructing  sidewalk, 
see  False  Imprisonment,  30. 

Right  of  municipality  to  lease  space  on  side- 
walks in  front  of  business  houses,  see 
Municipal   Corporations,   90. 

Question  for  jury  as  to  reasonableness  of 
obstruction  of  sidewalk,  see  Trial,  193. 

79.  Whatever  space  in  a  public  street  of 
a  city  is  set  apart  for  the  use  of  the  public 
as  a  sidewalk  the  public  have  a  right  to 
use  in  its  entirety,  free  from  any  and  all 
unauthorized  obstructions;  and  it  is  the 
duty  of  the  mayor  and  city  council  to  see 
that  it  is  kept  in  that  condition.  Chapman 
V.  Lincoln,  25:  400,  121  N.  W.  596,  84  Neb. 
534. 

80.  It  is  no  defense  to  a  party  who  is 
being  proceeded  against  by  a  city  for  un- 
lawfully obstructing  a  sidewalk  that  others 
not  proceeded  against,  are  obstructing  the 
walk  in  like  manner.  Chapman  v.  Lincoln, 
25:  400,  121  N.  W.  596,  84  Neb.  534. 

81.  That  steps  to  furnish  access  to  abut- 
ting buildings  have  for  a  great  many  years 
been  maintained  on  the  public  sidewalks 
of  a  municipal  corporation  is  evidence  that 
the  placing  of  steps  in  front  of  a  particular 
building  in  the  town,  at  a  place  where  the 
walk  is  wider  than  some  walks  on  which 
steps  are  maintained,  is  not  unreasonable. 
Pickrell  v.  Carlisle,  24:  193,  121  S.  W.  1029, 
135  Ky.   126. 

Digest  1-52  L.R.A.(N.S.) 


82.  A  municipal  corporation  which  owns 
the  fee  of  its  streets  has  no  implied  author- 
ity to  permit  the  erection  by  an  abutting 
owner  of  a  solid  wall  of  masonry  extending 
6  or  7  feet  onto  the  sidewalk,  for  the  con- 
venience of  its  building  and  in  keeping  with 
its  architectural  design,  although  by  reason 
of  its  decorative  and  artistic  appearance  it 
enhances  the  attractiveness  of  the  street. 
New  York  v.  Rice,  28:  375,  91  N.  E.  283, 
198  N.  Y.  124.  (Annotated) 

83.  A  demand  by  a  municipal  corpora- 
tion which  has  given  an  illegal  permit  to 
maintain  a  structure  on  the  sidewalk,  that 
it  be  removed,  is  sufficient  noti-ce  of  revoca- 
tion of  the  permit.  New  York  v.  Rice,  28: 
375,  91  N.  E.  283,  198  N.  Y.  124. 

84.  The  necessary  use,  by  a  merchant,  of 
skids  across  a  sidewalk  to  load  and  unload 
goods  between  his  place  of  business  and 
wagons  in  the  street,  is  not  unlawful  of 
itself,  and  a  nuisance.  John  A.  Tolman  & 
Co.  v.  Chicago,  24:  97,  88  N.  E.  488,  24Q 
111.   268.  (Annotated) 

85.  A  statutory  provision  that  it  is  a 
public  nuisance  to  obstruct  or  encroach 
upon  public  highways  does  not  apply  to  the 
use  of  skids  across  a  sidewalk  to  assist  in 
moving  goods  between  a  place  of  business 
and  wagons  in  the  street.  John  A.  Tol- 
man &  Co.  V.  Chicago,  24:  97,  88  N.  E.  488, 
240  111.  268. 

86.  Failure  instantly  to  obey  the  order 
of  a  police  officer  to  move  on  does  not  ren- 
der one  who  has  casually  met  friends  and 
stopped  to  converse  with  them  on  the  side- 
walk guilty  of  the  offense  of  refusing  to 
"disperse  when  commanded  to  do  so  by  a 
police  officer,"  for  which  a  municipal  ordi- 
nance prescribes  a  penalty.  Price  v.  Te- 
han,  34:  1182,  79  Atl.  68,  84  Conn.  164. 
Private  remedy  for  obstruction. 

For  obstruction  by  railroad,  see  infra,  94, 

95. 
Effect  of  estoppel  on  form   of  remedy,  see 

Estoppel,   3  56. 
See  also  Nuisances,  84,  87. 

87.  An  action  cannot  be  maintained  by 
a  private  person  for  an  interference  with  or 
an  obstruction  in  a  public  highway,  con- 
stituting a  public  nuisance,  unless  he  is 
thereby  specially  injured  in  some  way  not 
common  to  the  public  at  large.  McKay  v. 
Enid,  30:  1021,   109  Pac.   520,  26  Okla.   275. 

88.  One  cannot  recover  damages  for  ob- 
struction of  a  highwa}',  on  the  theory  that 
he  thereby  lost  prospective  customers  who 
might  have  come  to  and  stopped  at  his 
shop  but  for  the  obstruction.  Liermann  v. 
Milwaukee,  13:  253,  113  N.  W.  65,  132  Wis. 
628.  (Annotated) 

89.  One  who  places  an  unauthorized  ob- 
struction within  the  limits  of  the  high- 
way as  laid  out  is  liable  to  an  action  at 
the  suit  of  any  person  who  is  specially 
damnified  thereby,  and  this  although  the 
obstruction  is  outside  the  traveled  way. 
Opdycke  v.  Public  Service  R.  Co.  (N.  J. 
Err.  &  App.)  29:  71,  76  Atl.  1032,  78  N.  J. 
L.  576. 


1386 


HIGHWAYS,  II.  d. 


d.  Use  and  obstittction  by  railroadn. 

(See  also  same  heading  in  Digest  L.R.A 
1-10.) 

Injury  from  trolley  pole  in  street,  see  in- 
fra, 212,  213. 

Police  power  as  to,  see  Constitutionai, 
Law,  647,  648,  685. 

Criminal  liability  of  railroad  company  for 
obstruction,  see  Corporations,  126. 

Construction  of  highway  over  railroad,  see 
Damages,  56.5-570;  Eminent  Domain, 
38,  219;  Municipal  Corporations, 
236;  Railroads,  36-44;  Trial,  634. 

Condemnation  of  right  to  construct  rail- 
road in  highway,  see  Eminent  Domain, 

I.  d,  2. 

As  additional  burden  on  highway,  see  Emi- 
nent Domain,  IV.  b,  2. 

Right  to  compensation  for  obstructing  ac- 
cess to  street,  see  Eminent  Domain, 
264. 

Electric  railway  in  street,  as  additional 
servitude,  see  Eminent  Domain,  303- 
309. 

Jurisdiction  of  equity  to  require  removal 
of  street  railwuy  tracks,  see  Equity, 
11. 

Injunction  against  excessive  speed  of  trains 
in,  see  Injunction,  385. 

Mandamus  to  compel  issuance  of  permit  to 
remove  street  car  tracks,  see  Manda- 
mus, 50. 

Municipal  regulations  as  to  railroads  in, 
see  Municipal  Corporations,  II.  c,  4, 
(b)    (2). 

Municipal  regulation  of  street  railway,  see 
Municipal  Corpoeations,  II.  c,  4,  b, 
(3). 

Municipal  regulation  of  interurban  rail- 
roads,   see    Municipal    Corporations, 

II.  c,  4,  b,    (4). 

Railway  on  city  street  as  nuisance,  see  Nui- 
sances, 30,  76,  123,  132,  187,  191. 
Increase  of  trains,  noise,   and  smoke  upon 

railroad  track  and  street  as  nuisance, 

see  Nuisances,  30. 
Allegations  in  pleading  as  to  obstruction  by 

railroad  tracks,  see  Pleading,  40. 
Averments   as  to  maintenance  of  nuisance 

by  city,  permitting  railroad  to  obstruct 

traffic,  see  Pleading,  401. 
Liability  to  local  improvement  assessment, 

see  Public  Improvements,  48-55. 
Injury    to    person    by    railroad    in    public 

street,  see  Railroads,  66. 
Street   railroads   in    streets,   generally,   see 

Street  Railways. 
Injuries  to  pavement  by,  see  Street  IIaii> 

WAYS,   11. 
See  also  supra,  32. 

Riglit  to  use  or  occupy  street  gener- 
ally. 

Impairment  of  contract  obligations  by  re- 
peal of  ordinance  conferring  rights  in 
street,  see  Constitutional  Law,  794, 
795. 

Estoppel  of  municipality  to  require  removal 
■  of  street  railway  tracks,  see  Estoppel, 
7. 

Digest  1-52  I..R.A.(N.S.) 


Injunction  against  forfeiture  of  street  rail- 
way franchise,  see  Injunction,  382. 

Injunction  against  railway  in  street,  see 
Injunction,  184. 

Injunction  against  railroad  in  street,  see 
Injunction,  132,  383. 

Injunction  against  storage  of  cars  in  street, 
see  Injunction,  384. 

Mandamus  to  compel  street  commissioners 
to  determine  question  of  right  to  re- 
move street  car  tracks,  see  Man- 
damus,  49. 

City's  power  to  prevent  construction  of 
street  railway  tracks  in,  see  Municipal 
Corporations,  26. 

Liability  of  city  for  repeal  of  street  railway 
franchise,  see  Municipal  Corpora- 
tions, 392-394. 

90.  The  dedication  of  a  strip  of  land 
for  highway  purposes  by  one  who  retains 
the  fee  does  not  include  a  right  to  use  the 
property  for  purposes  of  a  commercial  rail- 
way. McCamraon  &  L.  Lumber  Co.  v.  Trin- 
ity &  B.  V.  R.  Co.  36:  662,  133  S.  W.  247, 
104  Tex.  8. 

91.  A  municipal  corporation  could,  in 
Indiana,  confer  by  ordinance  trackage 
rights  in  city  streets  upon  a  railway  com- 
pany whose  charter  provided  that  the  rail- 
road might  be  built  through  any  city  that 
would  give  its  consent.  Grand  Trunk  W, 
R.  Co.  V.  South  Bend,  44:  405,  33  Sup.  Ct. 
Rep.  303,  227  U.  S.  544,  57  L.  ed.  633. 

92.  That  an  ordinance  permitting  the 
placing  of  railroad  tracks  in  a  street  has 
been  accepted  and  in  force  for  nearly  forty 
years  will  not  prevent  the  municipality 
from  revoking  it,  so  far  as  it  authorizes  ad- 
ditional tracks,  where  no  attempt  has  been 
made  to  lay  such  tracks,  or  money  expended 
upon  them,  and  laying  tiiem  would  inter- 
fere with  the  public  convenience.  Grand 
Trunk  W.  R.  Co.  v.  South  Bend,  36:  850,  89 
N.  E.  885,  91  N.  E.  809,  174  Ind.  203. 

(Annotated) 

93.  That  a  double  track  has  been  main- 
tained by  a  railroad  company  in  a  portion 
of  a  city  street  for  a  long  period  of  time 
does  not  establish,  as  matter  of  fact,  that 
it  is  not  necessary  for  the  municipality  to 
repeal  a  provision  in  its  consent  to  the  lay- 
ing of  tracks  in  the  street,  which  permits 
them  to  be  laid  in  other  portions  of  the 
street,  but  which  has  never  been  acted  upon. 
Grand  Trunk  W.  R.  Co.  v.  South  Bend,  36: 
850,  89  N.  E.  885,  91  N.  E.  809,  174  Ind.  203. 
Private  remedy  for  obstruction. 

For  obstruction,  generally,  see  supra,  87-89. 
See  also  Nuisances,  76. 

94.  The  owner  of  real  property  cannot 
maintain  an  action  for  damages  thereto  by 
reason  of  the  lawful  construction  of  a  rail- 
road upon  a  street  which  intersects  that  in 
front  of  his  property,  where  no  part  of  his 
premises  is  taken  by  the  railroad  right  of 
way,  and  his  only  grievance  consists  in  not 
having  free  and  unobstructed  access  to  his 
premises  on  that  particular  street  in  one  di- 
rection, since  his  injury  is  the  same  in  kind 
as  that  suffered  by  the  community  in  gener- 
al. Scrutchfleld  v.  Choctaw,  O.  &  W.  R.  Co. 
9:  496,  88  Pac.  1048,  18  Okla.  308. 

(Annotated) 


HIGHWAYS,  II.  d. 


1387 


95.  The  owner  of  real  property  cannot 
maintain  an  action  for  damages  thereto 
caused  by  the  wrongful  obstruction  of 
streets  by  a  railway  lawfully  constructed 
thereon,  where  the  streets  obstructed  were 
not  the  only  means  of  access  to  such  prop- 
erty, and  were  not  adjacent  thereto,  since 
he  has  suttered  no  injury  special  to  himself 
and  different  in  kind  from  that  suffered  by 
the  general  public.  McKay  v.  Enid,  30: 
1021,  109  Pac.  520,  26  Okla.  275. 

Rights  as  against  abutting  owner. 

Measure  of  damages  to  abutting  owner,  see 
Damages,  III.  1,  4,  a. 

Setting  off  advantages  from,  see  Damages, 
581. 

Construction  of  railroad  as  a  taking  of  the 
property  of  an  abutting  owner,  see  Emi- 
>ENT  Domain,  190-197. 

Compensation  for  consequential  injuries 
from  construction  of  subway  in  street, 
see  Eminent  Domain,  274,  275. 

Additional  burden  on  highway  requiring 
compensation  to  abutting  owner,  see 
Eminent  Domain,  IV.  b. 

Increase  of  traffic  on  railroad  as  new  bur- 
den, see  Eminent  Domain,  310. 

Estoppel  to  claim  compensation  for  opera- 
tion of  railroad  in  street,  see  Estoppel, 
76. 

Injunction  against  railway  in  street,  see  In- 
junction, 184, 

Injunction  against  railroad  in,  see  Injunc- 
tion, 383;  Limitation  of  Actions,  68, 
69. 

Injunction  against  running  of  trains  at  ex- 
cessive speed,  see  Injunction,  385. 

Grant  by  abutting  owner  of  license  to  main- 
tain railroad  in  street,  see  License,  4. 

Running  of  limitations  against  action  for 
injuries  to  abutting  property  by  opera- 
tion of  railroad,  see  Limitation  of  Ac- 
tions, 96. 

Release  from  liability  for  consequential  in- 
juries, see  Release,  8. 

96.  An  abutting  property  owner  whose 
means  of  access  to  his  property  has  been 
materially  interrupted  by  the  building  of 
railway  tracks  upon  the  street  on  one  side 
of  such  property,  the  nearest  of  which  is 
within  10  feet  thereof,  may  recover  dam- 
ages therefor,  notwithstanding  such  owner 
has  a  means  of  access  from  another  street. 
Foster  Lumber  Co.  v.  Arkansas  Valley  & 
W.  R.  Co.  30:  231,  95  Pac.  224,  100  Pac.  1110, 
20  Okla.  583. 

97.  A  purchaser  for  an  adequate  consid- 
eration of  a  railway  in  a  public  street,  no 
actual  or  constrvictive  fraud  entering  into 
the  transaction,  is  not  liable  to  abutting 
owners  for  the  injuries  inflicted  upon  their 
property  by  the  construction  of  the  road. 
Hannegan  v.  Denver  &  S.  F.  R.  Co.  16:  874, 
95  Pac,  343,  43  Colo,  122,  (Annotated) 

98.  The  owner  of  abutting  property  may 
recover  for  interference  with  ingress  and 
egress  to  and  from  his  property  and  for 
diminution  in  value  thereof  by  the  construc- 
tion in  the  street  of  a  railway  under  proper 
authority,  Hannegan  v,  Denver  &  S.  F,  R, 
Co,  16:  874,  95  Pac,  343,  43  Colo,  122. 
Digest  1-52  L.R.A.(N.S.) 


99.  An  abutting  owner  may  maintain  an' 
action  against  a  railroad  company  which 
lays  its  tracks  in  a  public  street,  for  the 
injury  to  his  easements  therein,  alt]K)Ugb 
tlie  tracks  are  laid  under  authority  of  the 
municipality,  and  the  fee  of  the  street  is  in 
the  public.  Staton  v.  Atlantic  C.  L.  R.  Co. 
17:  949,  61  S.  E,  455,  147  N,  C.  428. 

100.  A  street  railway  track  laid  in  a 
public  street  in  such  manner  that  only  2 
inches  more  than  the  width  of  a  wagon  is 
left  between  the  curb  and  a  passing  car  is 
a  nuisance  to  abutting  owners,  in  unlaw- 
fully interfering  with  their  egress  and  in- 
gress, entitling  them  to  damages  against  the 
company.  Slaughter  v.  Meridian  Light  &■ 
R.  Co.  25:  1265,  48  So.  1040,  95  Miss.  25L 

(Annotated) 

101.  An  abutting  owner  cannot  interfere 
to  prevent  the  construction  of  a  subway  in 
the  street  for  a  car  line,  however  seriously 
he  may  be  inconvenienced  thereby,  where 
the  public  officers  charged  with  the  control 
of  such  matters  have  authorized  such  con- 
struction. State  ex  rel,  Dawson  v.  Parsons 
Street  R,  &  E,  Co.  28:  1082,  105  Pac,  704, 
81  Kan,  430. 

Obstruction  of  crossing  by  train. 

Obstruction  of  crossing  interfering  with  ex- 
tinguishment of  fire,  see  Fibes,  18-22. 

Pleading  as  to,  see  Pleading,  326,  338,  344. 

Blocking  of  crossing  by  train  as  proximate 
cause  of  injury  to  patient  caused  by 
delay  of  his  physician,  see  Pboximate 
Cause,  31. 

Liability  of  railway  company  for  personal 
injuries  caused  by  obstructing  crossing, 
see  Railroads,  139,  134-139. 

Liability  of  receiver  to  indictment  for,,  see 
Receivers,  31, 

See   also   Railroads,   256-262, 

102.  A  railroad  company  cannot  escape 
liability  under  a  statute  providing  that  it 
shall  not  in  any  case,  obstruct,  use,  or  oc- 
cupy a  highway  with  cars  or  engines  for 
more  than  five  minutes  at  one  time,  by  the 
fact  that  the  cars  could  not  be  moved  be- 
cause the  valves  of  the  air  brakes  were 
maliciously  opened  by  strangers,  without 
defendant's  knowledge.  Com,  v,  Ne\.  York 
C.  &  H,  R,  R.  Co.  23:  350,  88  N.  E,  764,  202 
Mass.  394.  (Annotated) 

103.  A  railroad  company  which  obstructs 
a  highway  crossing  with  a  train  a  longer 
time  than  allowed  by  statute,  thereby  hin- 
dering   a    physician    seeking    to    reach    a 

'•  woman  in  childbirth,  is  liable  for  the  in- 
creased suffering  and  injury  to  her  which 
result  from  the  delay,  Terry  v.  New 
Orleans  G,  N,  R,  Co,  44:  1069,  60  So,  729,. 
103  Miss,  679.  (Annotated) 

Private  railroad. 

104.  That  a  railroad  was  constructed  in  a 
public  street  partly  for  the  accommodation 
of  a  certain  mill  owner  does  not  make  it 
private,  so  as  to  constitute  a  public  nui- 
sance, if  it  is  open  to  all  persons  generally 
for  shipping  purposes.  Wolfard  v,  Fisher, 
7:  991,  84  Pac,  850,  48  Or,  479, 


1388 


HIGHWAYS,  II.  e,  1. 


«.  Rights  as  to  trees  or  materials  in 
'  street. 

•i'  1.  Trees. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Tree  as  obstruction  in  street,  see  infra,  195- 
197. 

Measure  of  damages  for  injury  to  or  de- 
struction of  trees,  see  Damages,  476. 

Injunction  against  cutting  trees  in,  see 
Injunction,  208. 

As  to  trees  on  private  property  overhanging 
highway,  see  Tbees,  2. 

105.  A  property  owner  whose  title  runs  to 
the  center  of  the  street  may  maintain  an 
action  against  the  adjoining  property  owner 
for  removing  a  tree  between  the  sidewalk 
and  the  curve,  which  was  on  the  boundary 
line  between  the  two  lots.  Blalock  v.  At- 
wood,  46:  3,  157  S.  W.  694,  154  Ky.  394. 

( Annotated ) 
.'  106.  An  abutting  owner  who  has  planted 
trees  in  a  parking  in  a  city  street  has  such 
an  equitable  easement  and  special  owner- 
ship in  the  trees  as  to  entitle  her  to  bring 
and  maintain  an  action  for  wrongful  in- 
jury to  them  resulting  in  consequential  in- 
jury to  and  depreciation  in  value  of  her 
abutting  lot,  notwithstanding  the  fee  simple 
title  to  the  street  is  in  the  city  and  the  city 
is  also  the  general  owner  of  the  trees.  Nor- 
man Milling  &  Grain  Co.  v.  Bethurem, 
51:  1082,  139  Pac.  830,  41  Okla.  735. 

107.  Municipal  officers  in  charge  of  the 
grading  and  improvement  of  a  city  street 
who,  without  obtaining  the  consent  of  the 
city  council  as  required  by  ordinance,  pur- 
suant to  an  arbitrary  decision  not  made 
in  good  ifaith,  cut  down  as  a  nuisance  shade 
trees  01  an  abutting  owner  which  were 
growing  in  the  parking  of  the  street,  where 
there  was  no  reason  or  public  necessity 
for  cutting  the  trees,  which  in  fact  were 
not  a  nuisance,  are  personally  liable  to  the 
owner  thereof  for  the  resulting  injury. 
Remington  v.  Walthall,  31:957,  108  Pac. 
112,  82  Kan.  234. 

Rights  of  mnnicipality  as  to. 

108.  A  city  has  power  of  control  over  its 
streets,  including  spaces  occupied  by  trees 
on  the  parking  and  wires  thereon,  but  must 
act  in  good  faith,  and  not  abuse  its  exercise 
of  its  power.  Norman  Milling  &  Grain  Co. 
v.  Bethurem,  51:  1082,  139  Pac.  830,  41  Okla. 
735. 

109.  A  municipal  corporation  may,  by 
resolution  of  its  council,  dir3ct  the  officers 
in  charge  of  the  grading  of  a  street  not  to 
cut  down  certain  shade  trees  thereon  until 
such  action  has  been  authorized  by  the  city 
council.  Remington  v.  Walthall,  31 :  957, 
108  Pac.   112,  82  Kan.  234. 

110.  A  municipal  corporation  acting  in 
good  faith  may,  under  its  charter  authority 
to  repair  the  streets  and  remove  nuisances, 
remove  without  compensation  or  notice  the 
trees  of  an  abutting  owner  which  aie  with- 
in the  limits  of  the  highway,  the  loots  of 
Digest  1-52  I<.R.A.(N.S.) 


which  interfere  with  the  operation  of  a 
municipal  sewer.  Rosenthal  v.  Uoldsboro, 
20:  809,  62  S.  E.  905,  149  N.  C.  128. 

(Annotated) 

111.  An  ordinance  requiring  the  removal 
of  a  tree  which  interferes  with  the  sidewalk 
on  a  much-used  portion  of  tlie  main  street 
of  the  town,  and  is  unsightly,  is  authorized 
by  statutes  empowering  tlie  municipality 
to  p.  3S  ordinances,  wliicli  do  not  conflict 
with  the  Constitution  and  laws  of  the  state, 
to  enforce  local  police  regulations,  to  order 
any  work  deemed  necessary  to  be  done  upon 
the  sidewalks  of  the  town,  and  cause  to  be 
removed  any  obstructions  in  the  streets; 
and  cannot  be  annulled  for  unreasonable- 
ness, although  the  tree  has  some  value  to 
the  abutting  property  owner  for  purposes 
of  shade,  and  poles  and  other  trees  are 
permitted  to  remain  along  the  street.  La- 
grange V.  Overstreet,  31:  951,  132  S.  W. 
169,   141   Ky.   43.  (Annotated) 

112.  A  city  is  not,  under  a  Constitution 
making  it  liable  for  property  damaged  tor 
public  use,  liable  for  the  diminution  in 
value  of  abutting  property  by  the  removal 
of  useful  and  ornamental  trees  from  the 
street  the  fee  of  which  is  in  itself,  which 
becomes  necessary  in  making  a  lawful  and 
careful  change  in  the  grade  of  the  street. 
Webber  v.  Salt  Lake  Citv,  37:  1115,  120  Pac. 
503,  40  Utah,  221. 

Abutting  onrners   right  to  remove. 

113.  Forbidding  the  removal  of  trees 
standing  in  the  street  without  a  permit  does 
not  prevent  the  owner  of  the  tree  from 
removing  branches  therefrom  which  have 
become  dangerous  to  persons  using  the 
street.  Dyer  v.  Danbury,  39:  405,  81.  Atl, 
958,  85  Conn.  128. 

On  installing  line  for  electric  lights, 

telephones,    etc. 
Limitation  period  for  action  for  injury  to 

trees,  see  Limitation  of  Actions,  194. 

114.  Both  the  owner  of  an  abutting  lot 
having  an  equitable  easement  in  trees  on  a 
street  and  a  public  service  corporation  hav- 
ing wires  thereon,  may  be  in  lawful  occu- 
pancy of  a  street;  and,  in  such  case,  mutual 
and  reasonable  accommodation  is  due  from 
each  to  the  other.  Norman  Milling  &  Grain 
Co.  V.  Bethurem,  51:  1082,  139  Pac.  830,  41 
Okla.   735. 

115.  A  public  service  corporation  which 
has  strung  electric  current  wires  within 
space  already  potentially  occupied  by  trees 
grown  by  the  abutting  lot  owner  on  a  park- 
ing in  the  street,  which  injuriously  cuts 
back  such  trees  from  contact  with  such 
wires,  is  a  trespasser  ah  initio  and  liable 
to  the  abutting  lot  owner  for  all  conse- 
quential damages  to  his  lot.  Norman  Mill- 
ing &  Grain  Co.  v.  Bethurem,  51:1082,  139 
Pac.   830,   41   Okla.   735.  (Annotated) 

116.  A  public  service  corporation  which 
has  strung  its  wires  on  poles  above  trees  in 
a  parking  in  a  city  street  within  space 
which  it  must  at  the  time  have  anticipated 
would  be  and  which  was  required  for  the 
perfection  of  the  growth  of  the  trees,  is 
liable  for  injuriously  trimming  away  the 
trees  from  its^  wires  notwithstanding  a  city 


HIGHWAYS,  II.  e,  2,  III. 


1383 


ordinance  confemng  a  franchise  upon  the 
public  service  corporation  attempted  to 
give  it  tlic  right  to  trim  trees  to  prevent 
branches  from  coming  in  contact  with  wires. 
Norman  Milling  &  Grain  Co.  v.  Bethurem, 
51:  1082,   139  P;ic.  830,  41   Okla.  735. 

117.  An  electric  light  company  operating 
under  a  franchise,  which,  without  consent 
of,  or  notice  to,  the  lot  owner,  trims  shade 
trees  growing  in  that  part  of  the  '  street 
contiguous  to  his  lot,  is  liable  to  such 
owner  for  the  resulting  damages,  in  the  ab- 
sence of  a  valid  legislative  act  or  municipal 
ordinance  enacted  before  the  lot  owner 
planted  the  trees,  granting  authority  to 
public-service  corporations  to  trim  shade 
trees  growing  in  the  streets  without  compen- 
sating the  abutting  owner  for  damages 
thereby  inflicted,  although  the  city  has  title 
to  the  street,  and  irrespective  of  whether  or 
not  the  electric  company  acted  maliciously. 
Slabaugh  v.  Omaha  E.  L.  &  P.  Co.  30:  1084, 
128  N.  W.  505,  87  Neb.  805.       (Annotated) 

118.  A  telephone  company  has  no  right, 
fmless  it  is  conferred  by  the  municipality,  to 
mutilate  shade  trees  planted  along  a  side- 
walk by  the  owner  of  the  fee.  Cartwright 
V.  Liberty  Teleph.  Co.  12:  1125,  103  S.  W. 
982,  205  Mo.  126. 

119.  A  telephone  company  which  does  not 
show  that  it  has  received  any  authority  to 
use  the  street  of  a  municipality  for  its  pur- 
poses cannot  defeat  an  action  by  an  abut- 
ting property  owner  for  damages  for  the 
mutilation  of  his  trees,  on  the  theory  that 
its  use  of  the  street  is  consistent  with  the 
purposes  for  which  the  street  was  acquired. 
Cartwright  v.  Liberty  Teleph.  Co.  12:  1125, 
103  S.  W.  982,  205  Mo.  126.       (Annotated) 

2.  Miscellaneous, 

(See  also  same  heading  in  Digest  LM.A. 
1-10.) 

120.  A  dealer  in  building  materials  has 
no  right  to  store  in  the  street  adjoining  his 
yard,  even  temporarily,  lumber  for  which 
there  is  no  room  in  the  yard.  Dougherty  v. 
St.  Louis,  46:  330,  158  S.  W.  326,  251  Mo. 
514. 

III.  Improvements;  repairs;  fixing  and 
changing' grade. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Delegation  to  city  of  power  as  to,  see  Con- 
stitutional Law,  112. 

Imposing  upon  abutting  owners  duty  to 
keep  sidewalks  clear  of  snow,  see  Con- 
stitutional Law,  223. 

Requiring  landowner  to  cut,  or  pay  for 
cutting,  weeds  in  abutting  highway,  see 
Constitutional  Law,  376. 

Implied  agreement  of  county  to  pay  for  re- 
pairs to,  see  Contracts,  42. 

Letting  of  contract  for  improvement,  see 
Contracts,  793,  794. 

Digest  1-52  L.R.A.(N.S.) 


Stipulation  in  contract  for,  as  to  use  of 
patented  material,  see  Contracts,  805- 
807. 

Right  of  abutting  owner  to  reimbursement 
by  street  railway  company  for  high- 
way assessment,  see  Damages,  560. 

Estoppel  by  permitting,  see  Estoppel,  III. 
g,  2,  b. 

Evidence  in  action  for  injuries  resulting 
from  negligence  of  street  contractor, 
see  Evidence,  764. 

Evidence  on  question  of  damages  by  street 
improvement,  see  Evidence,  1735. 

Injunction  against  performance  of  contract 
for  street  paving,  see  Injunction,  336. 

Injunction  against  collection  of  assessment 
for  worthless  sidewalk,  see  Injunctio:^, 
366. 

Duty  of  life  tenant  to  pay  expense  of  paving 
sidewalk,  see  Life  Tenants,  32. 

Setting  aside  verdict  against  city  for  in- 
jury caused  by,  see  New  Trial,  17. 

Notice  to  remainderman  to  lay  sidewalk,  see 
Notice,  8. 

Contractor  as  necessary  party  defendant  to 
suit  to  set  aside  assessment  for,  see 
Parties,  157. 

Building  and  repairing  of  pavement,  side- 
walk, street  sprinkling  and  sweeping, 
and  other  public  improvements  gener- 
ally, see  Public   Improvements. 

121.  A  municipal  corporation  in  execut- 
ing plans  for  a  street  improvement  must  ob- 
serve such  care  to  avoid  injury  to  private- 
property  as   a  reasonably  careful  and  pru- 
dent man  in  like  circumstances  would  use  \V 
the  responsibility  for  damages  rested  upon-< 
him.  Giaconi  v.  Astoria,  37:  1150,  118  Pac. 
180,  60  Or.  24. 

122.  Where   a   street   is  sufficiently   wide- 
that  enough  will   remain  unobstructed   for' 
the  purpose  of  public  travel,  a  municipality 
may  maintain,  or  permit  to  be  maintained, 
park    strips    between    the    curbing    of    the 
paved  street  and  the  pavement  of  the  side- 
walk   in    which    strip    grass,    flowers,    and 
trees    may    be    grown    for    the    purpose    of 
beautifying  and  ornamenting  tlie  streets  of 
the    city   and   contributing   to   the   pleasure 
and    comfort    of    its    citizens,    and   may    by 
proper     barriers     prevent     travel     tliereoii. 
Barnesville  v.   Ward,  40:  94,  96  N.  E.  937 
85  Ohio  St.  1. 

123.  A  public  road  is  for  use  by  the  trav- 
eling public,  and  may  be  improved  to  ac- 
commodate footmen,  as  well  as  those  using 
it  for  teams,  wagons,  or  other  vehicles. 
Hitchcock  V.  Zink,  13:  mo,  113  N.  W.  705 
80   Neb.    29. 

124.  A  municipal  corporation  is  not  re-^ 
quired  to  exercise  as  high  a  degree  of  care 
in  grading  and  constructing  a  rural  way 
within  its  limits  as  where  improving  a 
street  in  the  populous  portions  of  the  city, 
but  ordinarily  more  care  must  be  used 
upon  such  a  way  than  would  be  required 
on  an  ordinary  country  road.  Neidhardt 
V.  Minneapolis,  29:  822,  127  N.  W.  484.  112 
Minn.    149.       _  (Annotated) 

125.  A  municipal  corporation  in  improv- 
ing and  maintaining  a  rural  way  within  its 


131)0 


HIGHWAYS,  III. 


limits  is  not  required  to  grade  or  improve 
to  the  entire  widtli  of  tlie  liigliway.  Neid- 
hardt  v.  Minneapolis,  29:  822,  127  N.  W. 
484,   112  Minn.   149. 

126.  A  city  is  not  absolved  from  liability 
for  injuries  caused  to  abutting  property  by 
a  bridge  approach  which  was  placed  in  a 
street  in  accordance  with  its  contract  with 
a  private  corporation,  by  the  fact  that  the 
bridge  was  not  erected  at  the  height  pre- 
ticnbed  by  the  contract  ordinance.  Ranson 
V.  Sault  Ste.  Marie,  15:  49,  107  N.  W.  439, 
143  Mich.  601. 

127.  In  Nebraska,  the  owner  of  the  fee 
cannot  complain  that  a  sidewalk  is  being 
constructed  along  a  public  road  by  private 
parties,  where  permission  to  build  the  walk 
has  been  granted  by  the  board  of  county 
■commissioners.  Hitchcock  v.  Zink,  13:  11 10, 
113  N.  W.  795,  80  Neb.  29.  (Annotated) 
Tizing  and  changing  grade  of  street. 
Decision  on  former  appeal  as  law  of  the  case 

in  action  for  injury  of  change  of  grade, 
see  Appeal  and  Error,  1663. 

Error  in  instruction  in  action  for  obstruc- 
tion of  drainage  by  change  of  grade, 
see  Appeal  and  Ebrob,  1314. 

Judgment  on  appeal  in  action  for  damages 
resulting  from,  see  Appeal  and  Ebbob, 
1569. 

Measure  of  damages  for  injury  caused  by, 
see  Damages,  6,  476,  495,  496. 

Measure  of  damages  for,  see  Damages,  571- 
574. 

Setting  off  benefits  from  change  of  grade, 
see  Damages,  579,  590. 

Injury  resulting  from,  as  a  taking  of  prop- 
erty, see  Eminent  Domain,  200. 

Necessity  of  compensation  on  changing 
grade,  see  Eminent  Domain,  226,  231, 
263,  276-283. 

•Compensation  for  consequential  injuries 
from  improvement,  see  Eminent  Do- 
main, 276-283. 

■Chang*  of  grade  to  abolish  grade  crossing, 
see  Estoppel,  2. 

Evidence  in  action  for  injury  resulting 
from,  see  Evidence,  2463. 

Interest  on  claim  for  damages,  see  Inter- 
est, 23.  I 

Joint  liability  for  injury  resulting  from 
change  of  grade,  see  Joint  Cbeditobs 
AND  Debtors,  15,  16. 

Limitation  of  action  for  injuries  to  abutting 
owner  by  change  in  street  grade,  see 
Limitation   of    Actions,    258. 

Municipal  liability  for  injury  to  private 
property  by  sliding  of  soft  earth  there- 
on in  bringing  highway  to  grade,  see 
Masteb  and  Sebvant,  1005,  1006. 

Obstructing  or  diverting  surface  waters  in 
1  grading  street,  see  Municipal  Corpo- 
'  BATIONS,  452,  454. 

"Right  of  action  against  city  for  giving 
erroneous  street  grade,  see  Pabties,  5. 

Raising  of  street  grade  as  proximate  cause 
of  injury  by  surface  water,  see  Pboxi- 
mate  Cause,  71. 

vQuestion  for  jury  is  as  to  negligence  of  mu- 
nicipality in  bringing  street  to  grade, 
see  Tbial,  596. 

IMgest  1-52  I1B.A.(N.S.) 


Liability    for    flood    caused    by    change   of 
grade,  see  Watebs,  203. 

128.  That  a  highway  running  through 
suburban  property  has  been  improved  by  tlu 
county  authorities  does  not  prevent  the 
construction  of  a  street  upon  another  grade, 
when  the  property  is  taken  into  the  city 
limits,  from  being  an  original  construction 
within  the  rule  that  the  municipality  is 
not  liable  for  injury  to  abutting  property 
by  the  original  establishment  of  the  grade 
of  a  street.  Gernert  v.  Louisville,  51:  363, 
159  S.  W.  1163,  155  Ky.  589.       (Annotated) 

129.  A  municipal  corporation  is  not  lia- 
ble for  injury  to  abutting  property  by  al- 
teration of  the  natural  surface  of  a  street 
in  bringing  it  to  the  first  established  grade 
where  the  change  is  not  unreasonable  or 
carelessly  done,  even  under  a  constitutional 
provision  that  private  property  shall  not  be 
damaged  for  public  use  without  compensa- 
tion. Leiper  v,  Denver,  7:  108,  85  Pac.  849, 
36   Colo.    110.  (Annotated) 

130.  The  grade  of  a  street  is  not  estab- 
lished at  the  original  surface  by  a  long 
failure  of  the  municipal  authorities  io 
change  it,  during  which  abutting  owners 
have  improved  their  property  with  refer- 
ence to  the  original  condition.  Owensboro 
v.  Hope,  15:  996,  108  S.  W.  873,  128  Ky.  524. 

131.  The  owner  of  property  abutting  on 
a  city  street  is  not  entitled  to  damages  fov 
such  consequential  injuries  as  result  to  it 
from  the  original  careful  construction  of 
the  street  grade,  since  he  is  presumed  to 
have  received  compensation  therefor  when 
the  right  of  way  was  originally  secured 
Owensboro  v.  Hope,  15:  996,  108  S.  W.  873. 
128  Ky.  524. 

132.  The  title  secured  by  a  municipal  cor- 
poration to  a  strip  of  land  for  street  pur- 
poses includes  the  right  to  bring  it  to 
grade;  and  therefore  injury  done  to  abutti.ig 
property  by  so  doing,  in  removing  the  lateial 
support,  is  not  a  taking  entitling  the  owner 
to  further  compensation,  even  though  it  re- 
sults in  a  slipping  of  the  abutting  property 
into  the  street.  Talcott  Bros.  v.  Des  Moines, 
12:  696,  109  N.  W.  311,  134  Iowa,   113. 

(Annotated) 

133.  The  rule  of  lateral  support  obtaining 
between  adjoining  landowners  does  not  pre- 
vail in  favor  of  a  property  owner  against 
the  municipal  corporation  owning  the  ad 
joining  street.  Talcott  Bros.  v.  Des  Moines, 
12:  696,  109  N.  W.  311,  134  Iowa,  113. 

134.  A  municipality  has  a  right  to  estab- 
lish its  grades,  and  to  fill  in  or  bridge  or 
plank  its  street  and  right  of  waj',  so  as  to 
raise  the  surface  to  such  grade;  but  by  do- 
ing so  it  cannot  preclude  the  abutting  prop- 
erty owner  from  employing  and  using  such 
reasonable  means,  or  making  such  reasona- 
ble improvements,  as  may  be  necessary  to 
enable  him  to  go  from  his  property  to  the 
street,  and  exercise  and  enjoy  the  right  of 
ingress  and  egress.  Saiidpoint  v.  Doyle,  17: 
497,  95  Pac.  945,  1 1  Idaho.  749. 

135.  A  municipality  owning  a  street  in 
j  fee  is  liable  to  an  abutting  lot  owner  for 

damages  caused  by  ft  lowering  of  the  nat- 


HIGHWAYS,  III. 


1391 


ural  grade  of  the  street.     Stocking  v.  Lin- 
coln, 46:  107,  142  N.  W.  104,  93  Neb.  798. 

136.  An  abutting  property  owner  must 
exercise  such  care  to  prevent  injury  to  his 
property  from  the  cutting  down  of  the 
grade  of  the  adjoining  highway  as  may 
reasonably  be  expected  of  a  person  of  ordi- 
nary prudence  under  like  circumstances. 
Lexington  v.  Chenault,  44:  301,  152  S.  W. 
939,  151  Ky.  774. 

137.  A  statute  requiring  compensation  to 
be  made  to  the  owner  of  improved  property 
injured  by  change  of  an  established  street 
grade  authorizes  a  recovery  by  a  tenant  for 
years  for  injury  to  his  interests,  where 
the  statute  provides  that  its  provisions  sliall 
be  liberally  construed  with  a  view  to  pro- 
mote its  objects  and  assist  the  parties  in 
obtaining  justice.  Chiesa  &  Co.  v.  Des 
Moines,  48:  899,  138  N.  W.  922,  158  Iowa. 
343.  (Annotated) 

138.  The  fact  that  the  owner  of  property 
abutting  on  a  highway  changes  its  surface 
t^  adapt  it  to  use  in  connection  with  the 
street  grades  does  not  prevent  his  holding 
the  city  liable  for  injuries  to  it  by  the 
buckling  of  the  surface  in  consequence  of 
a  fill  in  the  street,  although  it  might  not 
have  been  affected  if  it  had  been  left  in  its 
natural  condition.  Hinckley  v.  Seattle,  46: 
727,   132  Pac.  855,  74  Wash.  101. 

139.  An  award  of  damages  in  an  eminent 
domain  proceeding  to  condemn  a  portion  of 
an  abutting  lot  for  a  slope  in  order  to  raise 
the  grade  of  a  highway  will  not  preclude 
an  action  to  hold  the  municipality  liable  f  • 
damages  for  injuries  caused  by  the  buckling 
of  the  surface  of  the  lot  and  the  extension 
of  the  slope  because  the  earth  proved  to  be 
unstable  under  the  weight  of  the  fill. 
Hinckley  v.  Seattle,  46:  727,  132  Pac.  855, 
74  Wash.  101. 

140.  A  gas  and  water  company  cannot 
hold  the  city  liable  for  the  cost  of  making 
the  necessary  changes  in  its  pipe  lines  laid 
in  the  street  under  a  franchise,  upon  the 
raising  by  the  municipality  of  the  street 
grade  to  carry  it  over  a  railroad  crossing. 
Scranton  Gas  &  Water  Co.  v.  Scranton, 
6:  1033,  64  Atl.  84,  214  Pa.  586. 

Road  wotTs.. 

Validity  of  method  of  distributing  road 
taxes,   see   Constitutional   Law,   222. 

Constitutionality  of  statute  requiring  use  of 
private  property  in  road  work,  see  Con- 
stitutional Law,  224. 

Labor  on  highways  as  personal  tax,  see 
Poll  Tax,  1. 

141.  Labor  is  not  property  in  the  sense 
that  it  can  be  liable  to  a  property  tax. 
State  v.  Wheeler,  5:  1139,  53  S.  E.  358,  141 
N.  C.  773. 

142.  Requiring  labor  for  the  working  of 
highways  is  not  taxation.  State  v.  Wheeler, 
5:  1 139,  53  S.  E.  358,  141  N.  C.  773. 

( Annotated ) 

143.  Even  if  requiring  labor  for  the  work- 
ing of  highways  is  taxation,  it  is  not  dou- 
ble taxation  upon  those  required  to  do  the 
Digest   1-52  Ii.R.A.(N.S.) 


work,  but  merely  a  higher  rate  for  the 
maintenance  of  the  roads.  State  v.  Wheel- 
er, 5:  1 139,  53  S.  E.  358,  141  N.  C.  773. 

144.  The  failure  of  a  road  overseer  to  com- 
ply with  a  statute  requiring  him  to  file  a 
criminal  complaint  against  any  male  per- 
son between  twenty-one  and  fifty  years  of 
age  who  shall,  upon  notice,  wilfully  fail  or 
refuse  to  perform  work  upon  the  public 
roads,  as  required  by  statute,  within  ten 
days  of  such  failure,  which  statute  is  di- 
rectory merely,  does  not  inure  to  the  benefit 
of  one  accused  by  a  complaint  filed  after 
the  expiration  of  such  period,  so  as  to 
render  him  free  from  liability  or  punish- 
ment. State  V.  Rayburn,  22:  1067,  101  Pac. 
1029,   2   Okla.   Crim.  Rep.  413. 

145.  A  statute  requiring  certain  male 
persons  between  twenty-one  and  fifty  years 
of  age  to  perform  four  days'  work  upon  the 
public  highways  of  the  state,  for  the  pur- 
pose of  keeping  them  in  repair,  with  the 
privilege  of  providing  a  substitute  or  pay- 
ing $1  per  day  in  lieu  thereof,  does  nv)t  im- 
pose a  poll  tax,  within  the  meaning  of,  and 
is  not  repugnant  to,  a  constitutional  pro- 
vision granting  the  legislature  authority  to 
levy  and  collect  a  poll  tax  on  all  electors 
of  the  state  under  sixty  years  of  age,  ncit 
exceeding  $2  per  capita,  per  annum.  State 
V.  Rayburn,  22:  1067,  101  Pac.  1029,  2  Okla. 
Crim.    Rep.    413.    ' 

146.  A  statute  making  a  person  guilty  of 
a  misdemeanor  who  shall,  upon  notice,  wil- 
fully fail  or  refuse  to  comply  with  a  statute 
requiring  all  male  persons  between  twenty- 
one  and  fifty  years  of  age  to  perform  cer- 
tain labor  upon  the  public  highways,  or 
furnish  a  substitute,  or  pay  a  stipulated 
sum  in  lieu  thereof,  and  making  it  the  duty 
of  the  road  overseer  to  file  a  complaint  with 
the  justice  against  such  person  within  ten 
days  after  such  failure  or  refusal,  and  pro- 
viding that  an  overseer  who  shall  fail  to 
file  such  complaint  shall  be  guilty  of  a  mis- 
demeanor, is  directory  merely,  and  does  not 
limit  the  time  within  which  a  complaint 
may  be  filed  to  such  ten  days,  the  purpose 
of  such  limitation  being  to  compel  vigilance 
on  the  part  of  the  overseer,  and  render  him 
liable  for  failure  to  perform  such  duty. 
State  v.  Rayburn,  22:  1067,  101  Pac.  1029, 
2  Okla.  Crim.  Rep.  413. 
Improvement  by  abutting  owner. 

147.  A  municipal  corporation  cannot  ar- 
bitrarily prevent  an  abutting  owner  from 
constructing  a  sidewalk  of  a  reasonable 
width  in  a  street  dedicated  for  public  use. 
Georgetown  v.  Hambrick,  13:  11 13,  104  S. 
W.  997,  127  Ky.  43.  (Annotated) 

148.  The  owner  of  land  abutting  on  a 
public  highway  has  no  right  of  action 
against  the  owner  of  the  property  on  the 
opposite  side  because  without  authority  he 
replaces  the  natural  condition  of  trees  and 
grass  with  a  curb  and  walk,  and  adapts  it 
to  public  use.  Parsons  v.  Litchfield  County 
Hospital,  16:  1038,  69  Atl.  352,  80  Conn.  525. 

(Annotated)  • 


1392 


HIGHWAYS,  IV.  a,  1. 


■  'IV.  Defects;   liability  for  injuries  to 
1  travelers. 

a.  Liability  of  municipality  or  county. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Injuries  by  improving  or  repairing  high- 
ways, see  supra,  III. 

As  to  sidewalks,  see  infra,  IV.  a,  6. 

As  to  contributory  negligence  of  person  in- 
jured, see  infra,  IV.  c. 

Notice  as  condition  precedent  to  liability, 
see  infra,  IV.  d. 

Joinder  of  municipality  and  abutting  owner 
in  one  action,  see  AciiON  OB  Suit,  117. 

Defense  to  liability  for  negligent  injury  to 
one  coasting  in  public  street,  see  Ac- 
tion OB  Suit,  36. 

Effect  of  failing  to  show  that  street  on 
which  accident  occurred  was  a  public 
street,  see  Appeal  and  Ebrob,  782. 

In  instructions  in  action  for  injury,  see 
Appeal  and  Ebbob,  1341;  Tbial,  1057- 
1060. 

Compelling  contribution  from  party  jointly 
or  primarily  responsible  for  injury,  see 
Appeal  and  Ebbob,  1137;  Contbibu- 
tion  and  Indemnity,  8-13,  16. 

Liability  for  injury  on  defective  bridge,  see 
Bbidges,  II. 

Exempting  particular  municipality  from 
liability  for  injuries,  see  Constitu- 
tional Law,  168. 

Liability  for  injury  by  electric  wires  in 
highway,  see  Electbicity,  40-53. 

Presumption  and  burden  of  proof,  see  Evi- 
dence, 443,  444,  447. 

Presumption  that  automobile  •  injured  by 
defect  in,  was  registered  and  licensed, 
see  Evidence,  298. 

Evidence  of  other  obstructions  or  accidents, 
see  Evidence,  1863-1857. 

Evidence  as  to  defective  condition  at  other 
times,   see   Evidence,   1869-1871. 

Admissibility  of  city  charter  in  action  for 
injury,  see  Evidence,  2043. 

Effect  of  amendment  of  petition  in  action 
for  injuries  on  limitation  of  actions, 
see  Limitation  of  Actions,  301. 

Duty  of  municipality  to  keep  street  free 
from  dangers  not  within  limits  thereof, 
see  Municipal  Cobporations,  320,  321, 
347,  348. 

Damage  to  abutting  property  by  water  per- 
colating through  soil  of  higliway  be- 
cause of  defect  therein,  see  Municipal 
Cobporations,  323. 

Injury  to  traveler  by  explosion  of  peanut 
roaster,  see  Municipal  Cobpobations, 
.   328. 

Failure  of  municipality  to  prevent  ball 
;     playing  in  street,  see  Municipal  Cob- 

':''  POBATIONS,    329. 

Injury,  by  discharge  of  fireworks  in  street, 
see  Municipal   Cobpobations,   350. 

Injury  to  person  on,  through  negligence  in 
operation  of  quarry  nearby,  see  Mu- 
nicipal Corporations,  389. 

Digest  1-52  I<.R.A.(N.S.) 


Injury  to  pedestrian  by  bursting  of  hose 
used  in  flushing  street,  see  Municipal 
Cobpobations,  410,  412. 

Pleading  in  action  for  injury,  see  Plead- 
ing, 318-320,  333,  334,  349. 

Proximate  cause  of  injury,  see  Pboximate 
Cause,  IV. 

Defect  in,  delaying  fire  apparatus  as  proxi- 
mate cause  of  destruction  of  property 
by  fire,  see  Proximate  Cause,  47 

Liability  for  maintenance  of  railroad  cross- 
ing at  grade,  see  Railroads,  126. 

Strict  construction  of  statute  as  to,  see 
Statutes,  272. 

Liability  of  town  for  injuries  to  employees 
working  on,  see  Towns,  7. 

Question  for  jury  as  to,  see  Trial,  II.  c, 
8,  c,    (1). 

149.  Townships  in  Oklahoma  are  not  lia- 
ble, in  the  absence  of  express  statute,  for 
injuries  sustained  from  defects  in  high- 
ways. James  v.  Wellston  Twp.  13:  1219, 
90  Pac.  100,  18  Okla.  56.  (Annotated) 

150.  The  rule  requiring  city  streets  to  be 
kept  clear  of  dangerous  impediments  applies 
to  the  nighttime.  McKim  v.  Philadelphia, 
19:  506,  66  Atl.  340,  217  Pa.  243. 

151.  A  municipal  corporation  is  liable  for 
the  condition  of  a  street  which  has  been 
platted,  improved,  and  treated  as  a  public 
street  in  charge  of  the  street  commissioner, 
although  the  locality  through  which  it  runs 
is  sparsely  settled.  Neff  v.  Cameron,  18: 
320,  111  S.  W.  1139,  213  Mo.  350. 

152.  The  rule  that  municipal  corporations 
are  under  legal  obligation  to  exercise  rea- 
sonable care  to  keep  and  maintain  streets 
and  public  places  in  safe  condition  for  pub- 
lic use  applies  to  all  streets  within  the  bor- 
ders of  the  municipality,  whether  in  the  set- 
tled or  platted  part  thereof  or  in  the  out- 
lying districts,  with  the  qualification  or 
limitation  that  the  same  diligence  and  care 
is  not  required  in  respect  to  streets  remote 
from  the  settled  part  of  the  municipality. 
Sundell  v.  Tintah,  38:  1127,  134  X.  W.  639, 

117  Minn.  170.  (Annotated) 

153.  A  municipal  corporation  is  liable  for 
the  wrongful  or  negligent  acts  of  its  agents 
in  performing  the  duties  of  making,  im- 
'  roving,  repairing,  keeping  in  repair  and 
in  safe  condition  its  streets  and  sidewalks, 
since  in  performing  such  duties  the  city  is 
acting  in  its  private  corporate,  rather  than 
in  its  public  or  governmental,  capacity. 
Tewksbury  v.  Lincoln,  23:  282,  121  N.  W. 
994,   84  Neb.  571. 

154.  The  liability  of  a  municipality  to  in- 
dividuals for  damages  for  injuries  caused 
by  the  negligence  of  the  municipal  authori- 
ties in  failing  to  keep  the  streets  in  proper 
repair  arises  out  of  the  fact  that  it  has  the 
exclusive  control  of  the  streets,  and  has  the 
power  to  provide  the  means  for  the  proper 
performance  of  the  duty  of  keeping  them  in 
safe  condition.     Shigley  v.  Waseca,  19:  689, 

118  N.  W.  259,  106  Minn.  94. 

155.  An  action  against  a  municipal  cor- 
poration for  damages  for  injuries  caused  by 
the  negligent  failure  of  the  municipal  au- 
thorities to  keep  the  streets  in  proper  re- 


HIGHWAYS,  IV.  a,  2. 


1393 


pair  cannot  be  maintained  without  showing 
performance  of  conditions  precedent,  im- 
posed by  the  legislature  in  its  lawful  regula- 
tion of  the  created  liability.  Shigley  v. 
Waseca,  19:  689,  118  N.  W.  259,  100  Minn. 
94. 

156.  The  condition  upon  which  a  munic- 
ipality shall  be  liable  for  damages  to  indi- 
viduals caused  by  the  defective  condition  of 
a  street  or  sidewalk  is  a  matter  which  be- 
longs properly  to  the  government  of  munic- 
ipalities, and  may  be  determined  and  regu- 
lated in  a  home-rule  charter.  Shigley  v. 
Waseca,  19:  689,  118  N.  W.  259,  100  Minn. 
94. 

157.  The  legislature  cannot  absolutely 
exempt  a  city  from  liability  to  respond  in 
damages  to  those  injured  by  reason  of  de- 
fects in  its  streets  which  were  caused  by  its 
>own  negligence.  Updike  v.  Omaha,  30:  589, 
'127  N.  W.  229,  87  Neb.  228. 

158.  Liability  of  a  municipal  corporation 
for  injury  occasioned  by  a  latent  defect  in  a 
street  or  road — such  a  defect  as  the  in- 
jured party  could  not  have  observed  or 
discovered  by  the  exercise  of  reasonable 
care  and  prudence — is  absolute,  and  does 
not  depend  upon  lack  of  diligence  or  care 
on  the  part  of  the  corporation.  Campbell 
V.  Elkins,  2:  159,  52  S.  E.  220,  58  W.  Va.  308. 

( Annotated ) 

159.  A  space  within  the  bounds  of  a 
city  street,  set  apart  between  the  side- 
walk and  the  roadway  for  a  grass  plot,  is 
a  part  of  the  street,  for  the  neglect  of  the 
safe  condition  of  which  the  city  may  be 
held  liable.  Townley  v.  Huntington, 
34:  1 18,  70  S.  E.  368,  68  W.  Va.  574. 

160.  A  street  or  sidewalk  is  not  in  good 
repair  wiien  one  without  fault  nfay  fall 
from  it  into  a  dangerous  hole,  or  an  ir- 
responsible child  may  venture  to  an  un- 
guarded pitfall  within  its  bounds  or  im- 
mediately at  its  side.  Townley  v.  Hunt- 
ington, 34:  118,  70  S.  E.  368,  68  W.  Va.  574. 
Defect  as  part  of  original  plan. 
Negligence  as  question  for  jury,  see  Trial, 

407. 

161.  It  is  not  negligence  per  se  for  a  city 
to  maintain  a  sidewalk  without  cleats  on 
a  grade  of  12.9  per  cent.  Dougan  v.  Seattle, 
51:  214,  1,30  Pac.  1165,  76  Wash.  621. 

(Annotated) 

162.  The  fact  that  the  grade  upon  which 
a  sidewalk  was  constructed  varied  from 
the  grade  of  the  street,  to  the  extent  of  in- 
creasing its  slant  about  1  inch  in  2  feet,  can- 
not be  held  a  contributing  cause  to  an  in- 
jury sustained  by  a  pedestrian  who  slipped 
upon  a  spot  of  ice  covered  with  snow,  since 
it  is  pure  speculation  as  to  whether  the  ac- 
cident would  or  would  not  have  happened 
had  the  sidewalk  conformed  to  the  street 
grade.  Beirness  v.  Missouri  Valley,  51: 
218,  144  N.  W.  628,  162  Iowa,  720. 

103.  The  negligence,  if  any,  of  a  city  in 
constructing  a  walk  with  a  surface  so 
smooth  as  to  be  dangerous  to  pedestrians, 
is  immaterial  where  the  accident  complained 
of  was  not  caused  by  the  smoothness  of  the 
walk,  but  from  the  presence  of  snow-covered 
Digest   1-52   L.R,A.(N.S.) 


ice   thereon.      Beirness   v.   Missouri   Valley, 
51:  218,  144  N.  W.  628,  162  Iowa,  720. 
Concurring  canses. 

Of  injiiry  by  obstruction  or  nuisance,  see 
infra,  199-201. 

164.  A  passenger  in  a  private  conveyance 
cannot  hold  the  municipality  liable  for  in- 
juries from  a  defect  in  the  street  if  the  neg- 
ligence of  the  driver  contributed  to  the  in- 
jury. Lauson  v.  Fond  du  Lac,  25:  40,  123 
N.  W.  629,  141  Wis.  57. 

2.  For  acts  or  omissions  of  others. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Recovery  over  by  municipality  against  per- 
son primarily  responsible  for  injviry, 
see  Appeal  and  Error,  1137;  Contri- 
bution AND  Indemnity,  8-13,  16;  Es- 
toppel, 43. 

For  negligence  of  driver  of  team  hired  to 
perform  work  on  public  streets,  see 
Mastier  AND  Servant,  43. 

For  negligence  of  fireman,  see  Mxtnicipal 
Corporations,  403-405,  408,  409. 

Joining  municipality  with  lessor  and  lessee 
of  building  in  action  for  injury  to  per- 
son on  sidewalk,  see  Parties,  201. 

Correctness  of  instructions  as  to,  see  Trial, 
1057,  1058,  1060. 

See  also  infra,  260,  261. 

165.  The  statute  imposing  absolute  duty 
upon  municipal  corporations  to  keep  their 
streets  and  sidewalks  reasonably  safe  for 
use  by  the  general  public  does  not  make 
them  liable  for  injuries  negligently  inflict- 
ed by  persons  lawfully  using  such  public 
ways,  upon  one  another.  Post  v.  Clarks- 
burg, 52:  773,  81   S.  E.  562,  —  W.  Va.  — . 

166.  A  county  which  permits  granite 
blocks,  which  have  been  placed  by  a  citizen 
on  the  graded  part  of  a  highway,  but  out- 
side the  macadamized  part,  to  remain  there 
for  five  months,  may  be  held  liable  for  in- 
jury to  a  traveler  on  the  highway  whose 
vehicle  comes  into  collision  with  them  in 
the  dark.  Blankenship  v.  King  County,  40: 
182,  122  Pac.  616,  68  Wash.  84.  (Annotated) 

167.  A  city  which  grants  permission  to  a 
third  party  to  plow  or  excavate  in  a  street 
is  bound  to  exercise  diligence  for  the  pro- 
tection of  the  traveling  public,  and  to  know 
the  condition  of  the  street,  while  the  work 
is  in  progress  and  after  it  is  done,  the  same; 
as  it  would  in  case  of  work  done  directly 
by  its  own  officers  or  agents.  Tepfer  v. 
VVichita,  49:  844,  136  Pac.  317,  90  Kan.  718. 

168.  A  city  given  control  of  its  streets, 
and  charged  with  the  duty  of  maintaining 
them  in  a  safe  condition,  cannot,  by  any 
permission  it  may  give  to  individuals  to 
plow  the  streets  and  to  remove  earth  there- 
from, avoid  liability  for  injuries  resulting 
to  travelers  from  the  negligent  manner  in 
which  the  work  is  done  or  the  dangerous 
condition  in  which  the  street  is  left.  Tep- 
fer V.  Wichita,  49:  844,  136  Pac.  317,  90 
Kan.  718.  (Annotated) 
88 


1394 


HIGHWAYS,  IV.  a,  3. 


169.  A  municipal  corporation  is  liable  for 
injuries  caused  by  the  fall  of  a  pile  of 
lumber  which  it  permits  to  be  stored  in 
the  street  by  a  dealer,  upon  a  boy  who  is 
jjlaying  around  it,  although  the  lumber 
had  been  in  the  street  only  a  short  time. 
Dougherty  v.  St.  Louis,  46:  330,  158  S.  W. 
326,  251  Mo.  514.  (Annotated) 

170.  The  fact  that  the  owner  of  an  ob- 
struction on  a  sidewalk  is  liable  for  an 
injury  resulting  therefrom  will  not  make  a 
city  liable  therefor  a  ho,  if  it  is  free  from 
negligence.  Diamond  Rubber  Co.  v.  Harry- 
man,  15:  775,  92  Pac.  922,  41  Colo.  415. 

171.  A  municipal  corporation  which  per- 
mits the  extension  of  an  area  way  under  a 
sidewalk  is  bound,  whether  it  owns  the  fee 
of  the  street  or  not,  to  inspect  the  supports 
placed  under  the  walk,  both  for  original 
construction  and  possible  deterioration,  to 
determine  whether  or  not  they  are  safe  for 
travel,  and  will  be  liable  for  injury  to  a 
pedestrian  resulting  from  its  failure  to  do 
so.  Sherwin  v.  Aurora,  43:  1116,  100  N.  E. 
938.  257  111.  458.  (Annotated) 

172.  A  municipal  corporation  which  per- 
mits the  maintenance  in  a  prominent  thor- 
oughfare in  constant  use  by  pedestrians  of 
an  aperture  covered  with  iron  doors  of  such 
character  that  one  may  be  opened  without 
any  guard  to  protect  the  hole  is  liable  for 
an  injury  caused  to  a  pedestrian  who  fell 
through  an  opening  left  by  the  raising  of 
one  door,  although  it  had  no  actual  knowl- 
edge of  the  negligent  use  being  made  of  the 
opening  at  the  time  of  the  accident,  and 
the  cover  had  been  raised  only  a  few  min- 
utes, so  that  it  was  not  chargeable  with 
notice.  Hayes  v.  Seattle,  7:  424,  86  Pac.  852, 
43  Wash.  500.  (Annotated) 
Officers. 

See  also  supra,  153. 

173.  The  duty  of  a  municipal  corporation 
to  keep  its  streets  in  safe  condition  extends 
to  the  use  of  the  street  by  its  employees  en- 
gaged in  the  care  of  the  streets,  and 
therefore  it  is  liable  for  injury  to  a  pedes- 
trian who  is  run  down  by  the  negligent 
operation  of  an  automobile  driven  by  its 
street  superintendent  while  he  is  engaged 
in  the  performance  of  his  duty  as  such 
superintendent.  Hewitt  v.  Seattle,  32:  632, 
113  Pac.  1084,  62  Wash.  377. 

174.  A  municipal  corporation  is  not  liable 
for  injuries  caused  by  frightening  a  horse 
through  the  negligent  handling  of  a  steam 
roller  while  engaged  in  repairing  its  streets. 
Danville  v.. Fox,  32:  636,  134  S.  W.  883,  142 
Ky.  476. 

175.  Neither  the  city  nor  the  officers  of 
its  board  of  health  are  liabL'  for  damages 
sustained  by  reason  of  acts  committed  in 
the  exercise  of  police  power  for  the  benefit 
of  the  public  health  and  safety;  but,  if  in 
the  exercise  of  such  powers,  such  officers 
place  a  rope  barrier  across  a  public  walk 
or  street,  which  becomes  and  remains  in  a 
defective  and  dangerous  condition,  and  the 
city  either  has  actual  notice  of  the  defect, 
or  it  has  existed  for  such  a  length  of  time 
as  that  notice  will  be  presumed,  the  city 
may,  if  the  facts  in  the  ease  warrant,  be 
Digest   1-52  ]1R.A.(N.S.) 


held  liable  for  its  negligence  in  leaving  the 

walk  in  an  unsafe  and  dangerous  condition. 

Sheets  v.  McCook,  51:  321,   145  N.   W.  252, 

95  Neb.  13!). 

Independent   contractor. 

Liability  of  abutting  owner  for  acts  of,  see 
infra,  290. 

Liability  of  contractor  to  indemnify  city, 
see  Bonds,   23,  24. 

Right  of  municipality  paying  damages  for 
injury  to  recover  over  against  con- 
tractor, see  Contribution  and  In- 
demnity, 13. 

For  acts  of  contractors  in  leaving  inflam- 
mable material  in  highway,  see  Mu- 
nicipal Corporations,  332. 

See  also  Master  and  Servant,  991,  1000. 

176.  A  municipal  corporation  cannot 
escape  liability  for  injuries  caused  by  ref- 
use left  piled  in  the  street  upon  the  com-, 
pletion  of  the  work  of  resetting  a  curb, 
upon  the  theory  that  the  work,  being  done 
by  the  abutting  owner  at  its  direction,  was 
by  an  independent  contractor  for  whose  acts 
it  was  not  responsible.  Meyers  v.  Phila- 
delphia, 10:  678,  66  Atl.  251,  217  Pa.  159. 

3.   Who  entitled  to  protection  or 
remedy. 

(See  also  same  heading  in  Digest  L.R.A, 
1-10.) 

Children  at  play. 

Liability  of  abutting  owner,  see  infra,  288a. 

Drowning  of  child  in  ditch  or  flume  along 
highway,  see  Municipal  Corpora- 
tions, 343,  344. 

See  also  supra,  169;  Negligence,  128,  160, 
16L 

177,  178.  A  municipal  corporation  is 
under  no  obligation  to  keep  its  sidewalks 
safe  for  roller  skating.  Collins  v.  Phila- 
delphia, 27:  909,  75  Atl.  1028,  227  Pa.   121. 

179.  That  a  child  was  engaged  in  roller 
skating  when  injured  by  catching  its  foot 
in  a  hole  in  a  sidewalk  will  not  prevent  its 
holding  the  municipality  liable  for  the  in- 
jury, if  the  hole  was  of  such  a  size  and  so 
located  as  to  render  the  walk  unsafe  for 
pedestrians,  and  had  existed  for  such  a 
length  of  time  as  to  charge  the  municipality 
with  notice  of  it.  Collins  v.  Philadelphia, 
27:  909,  75  Atl.   1028,  227   Pa.   121. 

180.  A  city  owes  substantially  the  same 
duties  to  children,  properly  on  the  streets, 
although  engaged  in  play,  as  it  does  to 
travelers  on  business.  Townley  v.  Hunt- 
ington, 34:  118,  70  S.  E.  368,  68  W.  Va.  574. 

( Annotated ) 

181.  The  court  will  not  say  as  matter  of 
law  that  play  by  children  in  a  public  street, 
even  though  they  have  reached  the  age  of 
seventeen  years,  is  not  a  proper  use  for 
which  the  street  must  be  kept  safe  by  the 
municipality,  in  the  absence  of  circum- 
stances making  it  obviously  dangerous  to 
play  there.  Irvine  v.  Greenwood.  36:  363, 
72  S.  E.  228,  89  S.  C.  511. 

Person  usinp;  bicycle. 

182.  A  municipal  corporation  does  not 
fulfil  its  duty  in  making  its  highways  safe 


HIGHWAYS,  IV.  a,  4. 


1395 


for  the  use  of  horse-drawn  veliicles  if  it  is 
not  safe  for  travel  including  its  use  of  bi- 
cyclists. Molway  v.  Chicago,  23:  543,  88 
N.  E.  485,  239  ill.  486.  (Annotated) 

183.  Ordinary  travel  includes  the  use  of 
a  street  by  one  riding  a  bicycle.  Molway 
V.  Chicago,  23:  543,  83  N.  e!  485,  239  111. 
486. 

Person  driving  automobile. 
Injury    due   to    lack    of    barrier,    see    infra, 
236. 

184.  An  automobile  is  not  a  carriage, 
within  the  meaning  of  a  statute  requiring 
towns  and  cities  to  keep  their  highways 
reasonably  safe  and  convenient  for  travelers 
with  their  horses,  teams,  and  carriages;  and 
a  town  is  not  liable  for  failure  to  make 
special  provisions  required  for  the  safety  of 
automobiles  if  its  ways  are  reasonably  safe 
and  convenient  for  travel  generally.  Doher- 
ty  V.  Ayer,  14:  816,  83  N.  E.  677,  197  Mass. 
241.  (Annotated) 

185.  Travelers  in  an  automobile  cannot 
hold  a  municipal  corporation  liable  for  in- 
juries due  to  a  defect  in  the  highway,  if  the 
automobile  was  not  registered  as  required 
by  statute,  although  they  were  ignorant  of 
that  fact.  Feeley  v.  Melrose,  27:  1156,  91  N. 
E.  306,  205  Mass.  329. 

186.  Failure  to  comply  with  a  statute 
requiring,  under  penalty,  the  registration  of 
automobiles,  which  does  not  make  the  use 
of  unregistered  machines  upon  the  highways 
unlawful,  does  not  deprive  the  owner  of  the 
right  to  hold  a  municipality  liable  for  in- 
jury to  the  machine  through  a  defect  in  a 
street,  which  is  due  to  its  negligence.  Hem- 
ming V.  New  Haven,  25:  734,  74  Atl.  892. 
82  Conn.  661.  (Annotated) 

4.  Obstruction  and  nuisances. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70J 

Liability  of  other  persons,  see  infra,  271- 
276. 

Due  to  defective  system  of  electric  wiring, 
see  Electkicity,  51. 

Exclusion  of  opinion  evidence  as  to  char- 
acter of  obstruction,  see  Evidexce, 
3149. 

Evidence  of  subsequent  removal  of  obstruc- 
tion, see  Evidence,  1821. 

Evidence  that  others  had  stumbled  over  ob- 
struction, see  Evidence,  1853. 

Variance  in  action  for  obstruction  of  side- 
walk, see  Evidence,  2490. 

Correctness  of  instructions  as  to  nuisance, 
see  Trial,  1059. 

See  also  supra,  67,  150. 

187.  The  mere  existence  of  obstructions 
on  a  sidewalk  is  not  alone  sufficient  to 
charge  the  municipality  with  liability  for 
an  injury  to  a  pedestrian,  caused  thereby. 
White  V.  New  Bern,  13:  11 66,  59  S.  E.  992. 
146  N.  C.  447. 

188.  Knowledge  of  the  existence  of  an  ob- 
struction on  a  sidewalk  will  be  imputed  to 
a  municipality  where  it  has  existed  for  as 
Digest   1-52  L.R.A.(M.S.) 


I  much  as  thirty  years.     White  v.  New  Bern, 
13:  1166,  59  S.  E.  992,  146  N.  C.  447. 

189.  A  municipal  corporation  cannot  ab- 
solve itself  from  liability  for  an  injury  to 
a  pedestrian  cs^used  by  the  steps  of  an  abut- 
ting house  encroaching  upon  a  sidewalk  in 
such  a  way  as  to  constitute  a  nuisance,  by 
the  fact  that  they  had  existed  for  twenty- 
five  years  or  more.  White  v.  New  Bern, 
13:  1 166,  S9  S.  E.  992,  146  N.  C.  447. 

190.  A  step  4i  inches  high  and  10^  wide 
placed  on  the  sidewalk  against  a  building, 
to  facilitate  access  to  it,  is  not  an  obstruc- 
tion to  the  walk  which  will  render  the 
municipality  liable  for  permitting  its  pres- 
ence there  in  case  a  pedestrian  falls  over  it, 
to  his  injury.  Richmond  v.  Lambert,  28: 
380,   68    S.    E.    276,    111    Va.    174. 

191.  A  municipal  corporation  is  liable  for 
injury  to  a  pedestrian  on  a  sidewalk  by 
collision,  in  the  night,  with  a  gate  which  is 
so  constructed  that  it  will  stand  open 
across  the  walk  so  as  to  obstruct  it,  if  the 
municipality  had  notice  of,  or,  by  the  exer- 
cise of  ordinary  care,  could  have  discovered, 
the  defect  in  time  to  remedy  it  prior  to  the 
injury.  Campbell  v.  Chillicothe,  39:  451, 
144   S.   W.   408,   239   Mo.   455. 

192.  A  municipal  corporation  is  not  lia- 
ble for  an  injury  to  a  pedestrian  caused  by 
a  wagon  used  for  removing  refuse  from  the 
streets,  by  the  fact  that  to  move  it  from 
one  place  to  another  it  was  attached  to  the 
back  of  a  sprinkling  cart,  although  there 
might  have  been  a  safer  or  better  way  of 
doing  the  work.  Louisville  v.  Carter,  32; 
637,  134  S.  W.  468,  142  Ky.  443. 

193.  The  mere  fact  that  a  cart  owned 
and  used  by  a  municipal  corporation  for 
I  he  purpose  of  sprinkling  its  streets  is  not 
in  actual  use  for  that  purpose  at  the  time  it 
causes  injury  to  a  pedestrian,  but  is  being 
taken  through  the  streets  for  another  pur- 
pose, does  not  render  the  municipality  lia- 
ble for  the  injury.  Louisville  v.  Carter, 
32:  637,   134  S.  W.   468,   142  Ky.  443. 

194.  An  elevator  for  lowering  goods  from 
the  sidewalk  to  a  basement  and  lifting  them 
from  the  basement  to  the  sidewalk,  so  con- 
structed as  to  leave  no  defect  in  the  walk 
when  lowered  and  not  in  operation,  not 
dangerous  to  persons  using  the  sidewalk  as 
travelers  when  in  operation,  and  not  left 
in  such  condition  as  to  be  dangerous  to 
them  when  not  in  use,  is  not  a  public  nui- 
sance, an  obstruction  of  the  sidewalk,  nor 
a  defect  therein.  Post  v.  Clarksburg,  52: 
773,   81    S.   E.   562,  —  W.  Va.  — . 

195.  Permitting  trees  to  remain  along 
a  street  in  such  a  way  as  to  interrupt  at 
places  the  light  from  the  street  lamps,  cast- 
ing shadows  in  which  a  traveler  cannot  see 
his  way,  does  not  constitute  a  nuisance 
which  will  render  the  municipality  liable 
for  injuries  to  a  traveler  through  an  acci- 
dent while  in  such  shadow,  which  might 
have  been  avoided  had  he  been  able  to  see. 
Blain  v.  Montezuma,  32:  542,  129  N.  W. 
808,   150  Iowa,   141. 

196.  A  municipal  corporation  is  not 
liable  for  injury  to  a  traveler  by  its  failure 
to  remove  a  nuisance  consisting  cf  a  danger- 


1396 


HIGHWAYS,  IV.  a,  4. 


0U8  limb  on  a  tree  in  the  street,  since  the 
duty  to  remove  it  is  a  governmental  one. 
Dyer  v.  Danbury,  39:  405,  81  Atl.  958,  85 
Conn.   128. 

197.  The  trees,  grass,  and  flowers  grow- 
ing upon  a  park  strip  left  between  the  road- 
way and  the  sidewalk,  and  proper  barriers 
placed  around  the  same  to  protect  them, 
are  not  obstructions  or  nuisances  within 
the  meaning  of  the  statute  requiring  the 
city  council  to  keep  the  streets  of  a  munic- 
ipality open,  in  repair,  and  free  from  nui- 
sance. Barnesville  v.  Ward,  40:  94,  96  N. 
E.  937,  85  Ohio  St.  1. 

198.  A  city  may  not  maintain,  or  permit 
to  be  maintained,  a  fence,  wire,  or  other 
1  irrier  around  park  strips  maintained  be- 
tween a  roadway  and  sidewalk  in  a  public 
street,  dangerous  to  the  life  or  safety  of 
any  traveler  who  undertakes  to  pass  over 
the  same,  and,  if  a  pedestrian  in  the  exer- 
cise of  due  care  for  his  own  safety  is  in- 
jured by  reason  of  the  dangerous  condition 
of  such  barrier,  the  municipality  is  liable 
in  damages  for  such  injury,  if  it  knew,  or 
in  the  exercise  of  ordinary  care  ought  to 
have  known,  the  dangerous  condition  there- 
of. Barnesville  v.  Ward,  40:  94,  96  N.  E. 
937,  85  Ohio  St.  1.  (Annotated) 
Concurring  causes  of  injury. 
Concurring  causes  generally,  see  supra,  164. 
Obstruction  in  street  as  proximate  cause  of 

injury  to  driver  of  frightened  horse,  see 
Proximate  Cause,  114. 
See  also  infra,  214. 

199.  A  municipal  corporation  is  not  liable 
for  the  death  of  a  horse  through  collision, 
while  running  away  from  a  cause  for  which 
the  municipality  is  not  responsible,  with  an 
obstruction  left  standing  near  the  curb  in 
the  highway,  if  ample  space  remained  in 
the  highway  for  safe  travel,  so  that  the 
street,  with  the  obstruction  in  it,  was 
reasonably  safe  for  the  uses  of  ordinary 
public  travel.  Harrodsburg  v.  Abraham,  29: 
199,  127  S.  W.  758,  138  Ky.  157. 

(Annotated) 

200.  A  city  is  liable  to  the  driver  of  a 
reasonably  safe  and  gentle  horse  for  injuries 
sustained  by  being  thrown  from  his  wagon 
caused  by  a  wheel  striking  an  obstacle  on 
tlie  street  on  a  sudden  swerving  of  the 
horse  in  temporary  fright  at  a  street  car. 
Rucker  v.  Huntington,  25:  143,  66  S.  E.  91, 
66    \\.    Va.    104. 

201.  A  municipality  is  liable  for  the  re- 
sulting injury  where  a  horse,  without  fauft 
of  the  driver,  takes  fright  at  something  for 
which  the  municipality  is  not  responsible, 
and  runs  away  and  comes  in  contact  with  a 
building  in  the  street,  which  is  there  by  the 
negligence  of  the  municipality,  if  the  in- 
jury would  not  have  been  sustained  except 
for  such  negligence.  McDowell  v.  Preston, 
18:  igo,  116  N.  W.  470,  104  Minn.  263. 
Ob.iects  frightening  horse. 
Liability   of   other   persons,   see   infra,   277, 

284. 

Pleading   in   action   for   injury,   see   Plead- 
ing, 333,  334. 

See  also  supra,  174,  199-201;   infra,  205. 

202.  A  city  cannot  be  held  liable  for  in- 
Digest   1-52  I..R.A.(N.S.) 


juries  due  to  the  frightening  of  a  horse  by 
stones  which,  for  the  purpose  of  repairing 
a  highway,  it  had  piled  along  the  curb  out 
of  that  traveled  path,  if  it  has  used  due 
care  in  their  location,  although  they  may 
be  of  such  a  nature  that  horses  of  ordinary 
gentleness  are  occasionally  frightened  by 
them,  though  they  are  permitted  to  remain 
longer  than  is  absolutely  necessary  before 
the  injury  occurs.  Elani  v.  Mt.  Sterling, 
20:  512,  117  S.  W.  250,  132  Ky.  657. 

(Annotated) 
Dogs  running  at  large. 

203.  The  liability  of  a  municipal  corpo- 
ration for  failure  to  keep  its  streets  in 
safe  condition  does  not  extend  to  injuries 
caused  by  vicious  dogs  permitted  to  be 
at  large  upon  them.  Addington  v.  Little- 
ton, 34:  1012,  115  Pac.  896,  50  Colo.  623. 
Discharge  of  fireworks. 

See  also  Municipal  Cokporations,  350. 

204.  A  discharge  by  municipal  authori- 
ties of  fireworks  across  a  highway  does 
not  constitute  a  defect  or  want  of  repair 
in  the  highway,  within  the  meaning  of  a 
statute  making  the  municipality  liable  for 
injuries  caused  by  such  defects.  Kerr  v. 
Brookline,  34:  464,  94  N.  E.  257,  208  Mass. 
190. 

Blasting. 

See    also    Municipal    Corporations,    347, 
348. 

205.  The  firing  of  a  blast  in  a  quarry  near 
a  highway  does  not,  although  it  causes  the 
fright  of  horses  being  driven  on  the  high- 
way to  the  injury  of  their  owners,  con- 
stitute a  defect  in  the  way  so  as  to  render 
the  municipality  whose  agents  were  engaged 
in  the  operation  of  the  quarry  liable  for  the 
injuries.  Radford  v.  Clark,  38:  281,  73  S. 
E.  571,  113  Va.  199. 

Injury    from   bicycle. 

206.  A  municipal  corporation  is  not  lia- 
ble for  failure  to  prevent  the  riding  of  bi- 
cycles on  sidewalks  contrary  to  law.  Mil- 
lett  V.  Princeton,  lo:  785,  79  N.  E.  909,  167 
Ind.  582.  (Annotated) 

207.  In  determining  the  liability  of  a  mu- 
nicipality for  injuries  done  by  a  bicycle 
while  being  ridden  on  a  sidewalk  under  the 
alleged  permission  of  its  ordinance,  the  or- 
dinance will  be  interpreted  as  granting  such 
permission  as  to  walks  upon  which  the  rid- 
ing of  bicycles  is  not  prohibited  by  state 
statute,  where  it  limits  the  speed  at  whicli 
bicycles  may  be  ridden  on  sidewalks,  and 
prohibits  riding  them  on  sidewalks  within 
certain  prescribed  boundaries.  Millett  v. 
Princeton,  10:  785,  79  N.  E.  909,  167  Ind. 
582. 

Falling    billboards    or   signs. 

208.  In  order  that  a  municipality  may  be 
relieved  of  liability  for  the  injury  of  a 
pedestrian  through  the  fall  of  a  sign  sus- 
pended across  the  sidewalk,  in  a  high  wind, 
it  is  necessary  that  the  wind  be  an  extraor- 
dinary and  unprecedented  one  and  that 
the  negligence  of  the  municipality  in  failing 
to  discover  the  danger  does  not  contribute. 
Purcell  v.  Stubblefield,  51:  1077,  139  Pac. 
290,  41  Okla.  562. 

209.  A    municipal    corporation    in    Okla- 


HIGHWAYS,  IV.  a,  5. 


1397 


homa  which  is  guilty  of  negligence  not  only 
in  permitting  tlie  erection  of  a  sign  across 
the  sidewalli,  but  in  allowing  it  to  remain 
for  over  a  year  after  the  admission  of  the 
state  into  the  Union,  is  liable  for  injuries 
suffered  by  a  pedestrian  from  the  fall  of  the 
sign  notwithstanding  the  municipality  was 
formerly  located  in  Indian  Territory  where 
it  was  not  liable  for  such  negligence,  and  the 
Constitution  of  Oklahoma  provided  that  "no 
existing  rights,  actions  .  .  .  shall  be 
affected  by  the  change  in  the  forms  of  gov- 
ernment." Purcell  V.  Stubblefield,  51:  1077, 
339  Pac.  290,  41  Okla.  562. 
Horse  race. 
See  also  infra,   286. 

210.  A  horse  race  upon  a  street  of  a  city 
is  not  a  defect  or  want  of  repair  in  the  high- 
way of  the  city,  or  a  dangerous  condition  of 
such  highway,  for  which  the  city  is  liable 
to  a  traveler  upon  such  street  who  is  struck 
by  one  of  the  horses  in  the  race.  Marth  v. 
Kingfisher,  18:  1238,  98  Pac.  436,  22  Okla. 
602. 

211.  A  municipal  corporation  is  not  lia- 
ble for  failure  to  exercise  a  governmental 
power,  as  for  failure  to  enact  an  ordinance 
against  horse  racing  upon  its  streets;  nor 
for  failure  to  enforce  such  ordinance  after 
it  is  enacted.  Marth  v.  Kingfisher,  18; 
1238,  98  Pac.  436,  22  Okla.  602. 

Pole  in  street. 

212.  A  municipal  corporation  permitting 
the  maintenance  by  an  electric  railway  com- 
pany of  a  trolley  pole  in  the  street  in  such 
a  manner  as  to  constitute  a  dangerous  ob- 
struction to  public  travel  is  liable  to  a  trav- 
eler injured  thereby.  McKim  v.  Philadel 
phia,  19:  506,  66  Atl.  340,  217  Pa.  243. 

( Annotated ) 

213.  The  fact  that  there  is  ample  space  for 
travel  between  the  curb  and  a  trolley  pole 
set  in  tlie  middle  of  the  street  does  not  ren- 
der the  pole  any  the  less  a  dangerous  ob- 
struction to  travel  after  dark  when  no  light 
is  maintained  near  it.  McKim  v.  Philadel- 
phia, 19:  506,  66  Atl.  340,  217  Pa.  243. 
Rope  or  \»rire  in  street. 

See  also  supra,  175. 

214.  Stretching  a  rope  across  an  extrance 
to  an  alley  between  the  street  and  sidewalk 
to  prevent  use  of  the  alley  is  not  an  ob- 
struction to  the  street  which  will  render 
the  municipality  liable  in  case  it  is  broken 
by  a  runaway  horse  and  an  end  flies  against 
a  person  passing  on  the  walk  to  his  injury. 
Lawrenceburg  v.  Lay,  42:  480,  149  S.  W. 
862,  149  Ky.  490.         "  (Annotated) 

215.  A  municipal  corporation  is  liable 
for  the  death  of  a  person  who,  in  running 
at  night  to  catch  a  car,  comes  in  contact 
with  a  wire  of  which  he  is  ignorant  which 
the  city  has  strung  on  neutral  ground  along 
its  street  a  few  feet  above  the  pavement  for 
the  purpose  of  keeping  back  the  crowd  at 
a  carnival  to  be  held  four  days  in  the  future, 
and  which  it  has  taken  no  precautions  to 
guard  or  light  so  as  to  warn  the  public  of  its 
location.  Nessen  v.  New  Orleans,  51:324,! 
'64  So.  286,  134  La.  455. 

Digest   1-52  L.R.A.(N.S.) 


Show;  street  fair. 

Contributory   negligence  of  person  injured, 

see  infra,   349. 
Exhibition  in,  as  nuisance,  see  NuiSANCESy 

8. 

216.  A  municipal  corporation  which  per- 
mits   an    organization    of    citizens    to    take 

I  charge  of  a  street  for  the  purpose  of  giving  a 
public  show  therein  becomes  in  legal  efiecl 
the  creator  of  the  nuisance  erected  by  sucl> 
organization  therein,  and  is  liable  as  sucb 
for  the  injuries  thereby  caused  to  travel- 
ers. Wheeler  v.  Ft.  Dodge,  9:  146,  108  N.  W. 
1057,  131  Iowa,  566.  (Annotated) 

217.  A  municipal  corporation  which  per- 
mits the  stringing  of  a  wire  across  a  public 
street  for  the  giving  of  an  acrobatic  per- 
formance is  liable  to  a  pedestrian  upon  the 
street  for  injuries  caused  by  being  struck 
by  a  performer  who  falls  from  the  wire 
while  engaged  in  his  performance,  where  the- 
duty  is  imposed  upon  the  municipality,  by 
statute,  of  keeping  its  streeta  free  from 
nuisances.  Wheeler  v.  Ft.  Dodge,  g:  146,  108 
N.  W.  1057,  131  Iowa,  566.  (Annotated) 

218.  A  municipal  corporation  which, 
without  authority,  permits  a  fair  to  be  held 
in  one  of  its  streets,  with  the  attendant 
structures  and  shows,  is  liable  for  inj'ury 
to  a  patron  who,  in  attempting  to  leave  a 
show,  passes  over  an  unsafe  platform  erect- 
ed in  the  street  to  afford  access  ta  such 
show,  and  is  jostled  off  by  the  crowd,  to  his 
injury.  Van  Cleef  t.  Chicago,  23:  636,  88 
N.  E.  815,  240  111.  318.  (Annotated) 
Bnilding  in  street. 

Right   to   maintain   building   in   street,   see 
supra,  78. 

219.  A  building  erected  and  maintained 
in  a  public  street  by  a  citizen  for  his  pri- 
vate use  is  a  nuisance,  though  sufficient 
space  be  left  for  the  passage  of  vehicles  and 
persons;  and  the  municipality  is  guilty  of 
negligence  if,  with  notice  thereof,  it  permits 
the  street  so  to  be  obstructed.  McDowell  v. 
Preston,  18:  190,  116  N.  W.  470',  104  Minn. 
263. 

220.  The  location,  without  authority,  of 
a  voting  booth  in  a  public  highway,  may 
constitute  a  defect  therein  which  will  re- 
quire the  municipal  corporation  to  exercise 
reasonable  diligence  to  protect  the  public 
travel.  Haberlil  v.  Boston,  4:  571,  76  N.  E. 
907,  190  Mass.  358. 

5.  Other  defects. 

(See   also   same   heading  in   Digest   L.R.A 
1-10.) 

Injurv  by  electricity,  see  Electricity,  40- 
53. 

221.  A  municipal  corporation  is  not  neg- 
ligent in  permitting  a  difference  of  18  tc> 
24  inches  to  exist  between  the  level  of  two 
wagon  tracks  only  a  few  feet  apart,  which 
had  been  made  by  public  travel  within  the 
city  limits,  but  not  improved  as  a  city 
street,  so  as  to  render  it  liable  for  injuries 
caused  by  the  overturning  of  a  wagon  in 
attempting  to  cross  from  one  \o  the  other.. 


1398 


HIGHWAYS,  IV.  a,  5. 


Nelson  v.  Spokane,  8:  636,  87  Pue.   1048,  4r) 
Wash.  31. 

222.  A  municipal  corporation  is  not  neg- 
ligent in  permitting  a  slight  rut  to  exist  in 
a  dirt  road,  caused  by  the  wheels  of  a  heavy 
wagon  slipping  off  the  paving  adjoining 
street-car  tracks  laid  therein  upon  a  grade 
6  or  6  inches  higher  than  the  dirt  way,  so 
as  to  render  it  liable  for  injury  caused  to 
one  falling  because  of  such  rut,  in  attempt- 
ing to  alight  from  a  street  car.  Clifton  v. 
Philadelphia,  9:  1266,  66  Atl.  159,  217  Pa. 
102.  (Annotated) 

223.  Statutes  making  a  municipality  lia- 
ble for  injuries  caused  by  defective  high- 
ways do  not  apply  to  those  caused  by  the 
fall  of  limbs  from  trees  in  the  street.  Dyer 
V.  Danbury,  39:  405,  81  Atl.  958,  85  Conn. 
128.  (Annotated) 

224.  Charter  authority  to  regulate  the 
planting  and  removal  of  trees,  and  an  ordi- 
nance providing  that  no  person  shall  remove 
or  plant  a  tree  in  the  street  without  a  per- 
mit, do  not  impose  upon  the  municipality 
the  duty  of  removing  dead  limbs  from  trees, 
so  as  to  render  it  liable  for  injury  caused 
by  its  failure  to  do  so,  if  under  statutory 
authority  a  tree  warden  has  been  elected 
who  is  given  the  care  and  control  of  the 
public  shade  trees  in  the  town.  Dyer  v 
Danbury,  39:  405,  81  Atl.  958,  85  Conn.  128. 

225.  The  statutory  liability  of  a  town  for 
injury  caused  by  the  neglect  of  its  high- 
way commissioners  to  keep  in  repair  its 
highways  and  bridges  does  not  extend  to 
an  injury  caused  by  failure  to  extend  a 
guard  for  a  culvert  embankment  outside 
the  traveled  part  of  the  highway,  so  that 
a  traveler  whose  horse  had  wandered  in 
the  dark  out  of  the  beaten  path  was  car- 
ried over  the  embankment.  Flansburg  v. 
Elbridge,  41:  546,  98  N.  E.  750,  205  N.  Y. 
423. 

226.  The  failure  of  a  municipal  corpora- 
tion to  guard  or  cover  a  drainage  ditch  or 
gutter  at  a  point  where  it  passed  under  a 
5-foot  sidewalk  which  was  in  good  repair 
is  not  such  negligence  as  will  render  it  lia- 
ble in  damages  for  injuries  to  a  pedestrian 
caused  by  stepping  from  the  walk  into  the 
ditch,  where  the  ditch  had  been  construct- 
ed in  the  ordinary  method  for  the  purpose 
of  carrying  off  surface  water  and  was  in  per- 
fect condition,  although  the  height  of  the 
sidewalk  above  the  bottom  of  the  ditch  was 
approximately  from  18  to  24  inches,  since 
a  municipal  corporation  is  only  required  to 
guard  against  such  dangers  in  its  sidewalks 
as  can  or  ought  to  be  anticipated  in  the  ex- 
ercise of  reasonable  care,  and  it  cannot  be 
said  that  a  careful  or  prudent  person  would 
have  anticipated  any  danger  to  pedestrians 
in  using  the  walk  at  that  point.  Braatz  v. 
Fargo,  27:  1 169,  125  N.  W.  1042,  19  N.  D. 
538.  (Annotated) 

227.  A  municipal  corporation  is  not  lia- 
ble for  injury  to  a  pedestrian  who,  in  at- 
tempting to  cross  a  street,  stumbles  and 
falls  because  of  a  piece  of  stone  projecting 
2  inches  above  the  level  of  the  cross  walk, 
where  the  walk  is  constructed  of  two  level 
strips  of  paving  stone,  with  the  intervening 
Digest  1-52  i:..R.A.(N.S.) 


space  filled  with  loose  stones,  and  covered 
with  dirt.  Richmond  v.  Schonberger,  29: 
180,  68  S.  E.  284,  111  Va.  168.     (Annotated) 

228.  A  municipal  corporation  which  closes, 
by  means  of  barricades,  a  street  in  which 
a  deep  sewer  is  being  laid,  is  not  liable  for 
injury  to  a  child  which  passes  the  barricade 
and  slips  into  the  trench  from  a  pile  of 
sand  deposited  by  the  side  of  the  trench  for 
use  in  the  work,  upon  which  he  goes  to 
play,  in  the  absence  of  anything  to  charge  it 
with  notice  of  some  special  danger  to  chil- 
dren in  the  conditions  which  exist.  Johnson 
V.  New  York,  46:  462,  101  N.  E.  691,  208  N. 
Y.  77. 

229.  The  duty  of  a  municipal  corporation 
to  keep  its  sidewalks  safe  does  not  require 
it  to  keep  a  covering  of  a  stairway  leading 
from  the  sidewalk  to  the  cellar  of  an  ad- 
joining building  safe  as  a  standing  place 
for  persons  wishing  to  look  through  the 
windows  of  the  building.  Louisville  v, 
Hayden,  46:  1193,  157  S.  W.  4,  154  Ky.  258. 
liack  of  railings  or  barriers. 
Liability  of  street  railway  company,  see  in- 
fra, 332. 

Necessity  for  barriers  for  discontinued  high 

way,  see  infra,  403. 
Joinder  in  action  for  injury,  of  municipality 

and  abutting  owner,  see  Action  or  Suit, 

117. 
Effect   of   municipality's   delay    in   erecting 

barriers  on  right  to  recover  over  against 

persons  primarily  liable  for  injury,  see 

CONTBIBUTION  AND  INDEMNITY,  12. 

Sufficiency  of  proof  that  accident  was  caused 
by  absence  of  barriers,  see  Evidenck, 
2073,  2074. 

Pleading  in  action  for  injury,  see  Plead- 
ing, 318. 

As  proximate  cause  of  injury,  see  Proxi- 
mate Cause,  116-119. 

Question  for  jury  as  to  negligence,  see 
Trial,  409. 

See  also  infra,  285. 

230.  In  determining  whether  it  is  neces- 
sary, in  a  particular  case,  that  a  barrier 
should  be  erected  in  order  to  make  a  high- 
way safe  for  travelers  thereon,  the  true 
test  is  not  the  distance  from  the  highway 
of  the  dangerous  object  or  place,  but  wheth- 
er a  traveler  in  passing  along  the  highway 
and  exercising  ordinary  care  would  be  sub- 
jected to  such  imminent  danger  that  it 
would  require  a  barrier  to  make  the  high- 
way safe.  Mineral  City  v.  Gilbow,  25:  627, 
90  N.  E.  800,  81  Ohio  St.  263. 

231.  A  county  is  liable  to  a  person  who, 
while  traveling  on  the  highway,  is  precip- 
itated from  a  bridge  approach  and  is  in- 
jured because  of  the  absence  of  a  barrier 
along  the  side  of  the  api)roach.  Magee  v. 
Jones  County,  48:  141,  142  N.  W.  957,  161 
Iowa,  296. 

232.  A  condition  sufficient  to  hold  a  coun- 
ty liable  for  injury  to  a  traveler  on  a  high- 
vvay  whose  horse  went  over  an  embankment 
upon  which  it  was  built  is  not  shown  by 
allegations  that  the  defect  was  the  exist- 
ence on  the  side  thereof  of  a  steep,  precipi- 
tous, and  sheer  decline  or  pitfall  of  some  8 
or   10  feet  to  the  bottom,  which   defendant 


HIGHWAYS,  IV.  a,  5. 


1399 


nt'gligently  permitted  to  remain  without 
barrier;  and  that  plaintiff's  horse  fell  down 
and  into  said  declivity  and  precipice.  Leber 
V.  King  County,  42:  267,  124  Pac.  397,  09 
Wash.  134. 

233.  A  county  is  not  bound  to  maintain  a 
barrier  along  the  side  of  a  graded  roadway 
15  feet  wide,  although  it  is  at  the  top  of 
an  embankment  8  or  10  feet  high,  where 
the  slope  is  not  precipitous,  but  gradual. 
Leber  v.  King  County,  42:  267,  124  Pac.  397, 
69  Wash.  134.  (Annotated) 

234.  A  town  is  not  bound  as  matter  of 
law  to  place  a  barrier  in  every  ease  between 
a  highway  and  a  stone  lying  immediately 
adjacent  thereto,  which,  if  within  the  limits 
of  the  highway,  would  constitute  an  ob- 
struction, falling  over  which  might  injure  a 
traveler;  and  it  is  immaterial  that  there  ia 
nothing  to  mark  the  line  of  the  highway. 
Shea  V.  Whitman,  20:  980,  83  N.  E.  1096, 
197  Mass.  374.  (Annotated) 

235.  A  township  is  not  relieved  from  the 
duty  of  maintaining  such  barriers  along 
the  edge  of  an  elevated  bridge  approach 
as  are  necessary  to  render  it  safe  for 
travel,  by  the  fact  that  it  is  engaged  in 
erecting  concrete  retaining  walls  along 
the  sides  of  the  embankment,  if  the  ap- 
proach is  left  open  for  travel.  Speck  v. 
Bruce,  35:  203,  132  N.  W.  114,  166  Mich.  550. 

236.  A  town  is  not  liable  for  an  accident 
to  an  automobile  beyond  the  limits  of  a 
highway,  on  a  surface  of  sand  level  with  the 
road,  although  the  marks  of  travel  have 
been  obliterated  by  the  alteration  of  the 
road;  since  the  town  is  not  required  to  keep 
the  adjoining  land  in  repair,  and  no  such 
dangerous  condition  exists  as  requires  the 
erection  of  a  barrier  to  mark  the  limits  of 
the  wav.  Doherty  v.  Ayer,  14:  816,  83  N.  E. 
677,  197  Mass.  241. 

237.  A  city,  by  permitting  the  use  of  part 
of  a  street  for  the  placing  of  building  mate- 
rials for  use  in  the  construction  of  a  build- 
ing on  adjacent  property,  is  not  charged 
with  the  duty  of  seeing  that  the  place  is 
guarded,  and  will  not  be  liable  in  damages 
to  a  person  injured  in  consequence  of  the 
omission  to  guard  such  place  with  barriers 
or  lights,  unless  it  has  notice,  express  or  im- 
plied, of  such  omission,  and  after  such  no- 
tice is  guilty  of  negligence.  Columbus 
V,  Penrod,  3:  386,  76  N.  E.  826,  73  Ohio  St. 
209.                                                    (Annotated) 

238.  Neither  the  municipality  nor  the 
owner  of  property  abutting  on  a  street 
owes  to  a  traveler  thereon  the  duty  of 
maintaining  barriers  to  prevent  him  from 
leaving  the  street  and  reaching  a  place  of 
danger  wholly  on  the  abutting  property  and 
6  feet  distant  from  the  street  line, — especial- 
ly where  the  conditions  have  existed  for 
many  years  without  the  happening  of  an 
accident.  Mineral  City  v.  Gilbow,  25:  627, 
90  N.  E.  800,  81  Ohio  St.  263. 

239.  Where  a  road  or  way  becomes  danger- 
ous to  travel,  is  abandoned  or  a  new  loca- 
tion established,  public  authorities  in  charge 
of  the  work  must  put  up  barriers  or  warn- 
ings to  protect  pensons  traveling  thereon, 
acting  upon  the  belief,  justified  bv  appear- 
Digest  1-52  L.R.A.(N.S.) 


ances,  that  the  old  way  is  still  open,  and  it 
is  negligence  not  to  do  so.  Daniels  v.  Coun- 
ty Court,  37:  1 158,  72  S.  E.  782,  69  W.  Va. 
676. 

Absence    of   light. 
As    evidence    of    negligence,    see    Evidence, 

1797. 
See  also  supra,  213,  237. 

240.  Even  though  a  municipal  corporation 
has  undertaken  to  light  its  streets,  and  has 
failed  to  place  a  light  at  the  ford  across^ 
a  stream,  it  is  not  liable  for  the  death  of 
a  traveler  drowned  in  the  dark  because  of 
the  swollen  condition  of  the  water,  if  the 
ford  was  safe  for  travel  under  ordinary  cir- 
cumstances. Gee  V.  Hopkinsville,  46:  229^ 
157  S.  W.  30,  154  Ky.  263.  (Annotated) 

241.  A  municipal  corporation  which  has 
undertaken  to  exercise  its  charter  power  to 
light  its  streets  cannot  be  held  liable  on  the 
ground  of  negligence  for  an  accident  to  a 
traveler  on  the  street,  because  the  lighting 
system  is  not  as  efficient  as  it  might  have 
been.  Blain  v.  Montezuma,  32:  542,  129  N. 
W.   808,   150  Iowa,   141. 

242.  Mere  statutory  authority  to  light  its 
streets  does  not  impose  upon  a  municipality 
the  obligation  to  do  so,  so  as  to  render  it 
liable  for  injury  to  travelers  because  of  the- 
absence  of  light.  White  v.  New  Bern, 
13:  1166,  59  S.  E.  992,  146  N.  C.  447. 

(Annotated) 

243.  Neither  defective  lights,  nor  the  ab- 
sence of  lights,  is,  of  itself,  negligence  which 
will  render  a  municipality  liable  for  injuries 
to  a  traveler  on  the  highway,  if,  notwith- 
standing such  defect  or  absence,  the  high- 
way is  reasonablv  safe.  White  v.  New  Bern, 
13:  1 166,  59  S.  E.  992,  146  N.  C.  447. 

Ice   and   snomr. 

Liability  of  abutting  owner  for,  see  infra,. 

300-305,  312,  313. 
As    to    contributory    negligence,    see    infra, 

3,50,  364. 
Sulilciency  of  notice  of,  see  infra,  387,  388. 
Evidence  in  action  for  injury,  see  Evidence,. 

2043. 
Prejudicial  error   in   exclusion   of   evidence, 

see  Appeal  and  Eekor,  1240. 

244.  Under  a  charter  duty  to  remove  ob- 
structions and  encroachments  from  cross^ 
walks,  a  village  is  not  bound  to  keep  its 
cross  walks  free  from  accumulations  of 
snow  and  ice,  unless  dangerous  formations- 
or  obstacles  have  been  created.  Dupont  v. 
Port  Chester,  39:  1167,  97  N.  E.  735,  204  N. 
Y.  .351.  (Annotated) 

245.  A  village  which  is  not  required  to 
remove  the  snow  from  its  streets  is  not 
negligent  in  leaving  the  snow  as  it  falls 
upon  cross  walks  to  facilitate  driving  in  the 
street,  unless  there  is  something  in  the  way 
in  which  it  falls  or  the  form  which  it  subse- 
quently takes  which  creates  an  encum- 
brance, obstruction,  or  special  danger, 
Dupont  V.  Port  Chester,  39:  1167,  97  N.  E. 
73.5;  204  N.  Y.  351. 

246.  A  city  may  be  held  liable  in  an  ac- 
tion for  damages  where  the  evidence  of  at 
least  srme  of  the  witnesses,  which  is  be- 
lieved by  the  jury,  shows  that  a  portion 
of   a  sidewalk   has   remr.ined   covered   with 


1400 


HIGHWAYS,  IV.  a,  6. 


ice  and  snow  during  the  whole  winter,  and 
such  ice  and  snow  have  been  allowed  to  thaw 
and  freeze  and  accumulate  during  such 
time,  so  that  the  jilace  was  much  more 
dangerous  and  obstructed  than  the  other 
sidewalks  in  the  vicinity,  and  no  effort  has 
been  made  by  the  city  either  to  remove 
it  or  cause  the  same  to  be  removed,  or  to 
sprinkle  it  with  sand  or  other  substance 
in  order  to  render  it  less  dangerous,  and 
the  evidence  also  shows  that  such  ice  and 
snow  were  trampled  into  ruts,  mounds, 
humps,  and  hillocks  by  the  pedestrians  dur- 
ing a  thaw,  and  frozen  in  such  condition, 
and  that  after  a  snowstorm,  which  later 
fell  upon  and  largely  hid  the  same,  plain- 
tiff slipped  and  fell  thereon.  Jackson  v. 
Grand  Forks,  45:  75,  140  N.  W.  718,  24  N. 
D.  601.  (Annotated) 

247.  The  negligence,  if  any,  of  a  munici- 
pal corporation  in  permitting  snow  and  ice 
to  remain  on  a  walk  in  rough  and  uneven 
surfaces,  is  immaterial  where  the  undis- 
puted evidence  shows  that  plaintiff  had,  be- 
fore falling,  passed  over  the  part  of  the  walk 
where  the  ridges  and  rough  surfaces  were 
claimed  to  have  been.  Beirness  v.  Missouri 
Valley,  51:  218,  144  N.  W.  628,  162  Iowa, 
720. 

248.  When  cold  follows  a  melting  of 
snow,  causing  a  film  of  ice  upon  the  side- 
walks which  it  is  practically  impossible  to 
remove,  the  municipality  may,  without  be- 
ing guilty  of  negligence,  wait  for  a  change 
of  temperature  to  remedy  the  condition. 
Beirness  v.  Missouri  Valley,  51:  218,  144  N. 
W.  628,  162  Iowa,  720. 

249.  A  city  must  be  allowed  due  time  to 
remove  snow  and  ice  from  the  sidewalks, 
or  so  to  deal  with  the  conditions  as  to  ren- 
der the  walks  as  reasonably  safe  as  can  or- 
dinarily be  expected  under  the  circumstan- 
ces; out,  where  ice  and  snow  are  piled  up  on 
a  sidewalk  so  as  to  render  it  exeeedinglj' 
slippery,  and  such  condition  has  been  per- 
mitted to  remain  for  several  weeks  without 
any  effort  on  the  part  ot  the  city  to  remedy 
it,  or  to  protect  pedestrians  therefrom,  there 
is  sufficient  to  charge  the  city  with  negli- 
gence rendering  it  lia'  .0  for  personal  in- 
juries to  a  pedestrian,  in  the  absence  of  a 
showing  of  reasonable  justification.  Bull 
V.  Spokane,  13:  1105,  89  Pac.  555,  46  Wash. 
237.  (Annotated) 

250.  A  municipal  corporation  is  not  liable 
for  failure  to  abate  conditions  existing  out- 
side of  a  highway  which  caused  ice  to  ac- 
cumulate on  a  sidewalk,  because  it  is  au- 
thorized by  its  charter  to  enact  ordinances 
to  prevent  nuisances  and  summarily  to  abate 
them  at  the  expense  of  the  person  maintain- 
ing them;  no  duty  as  to  the  exercise  of  this 
power  having  been  imposed  by  law,  express- 
ly or  by  clear  implication.  Udkin  v.  New 
Haven,  14:  868,  68  Atl.  253,  80  Conn.  291. 

251.  A  city  is  not  liable  for  injuries  due 
to  a  fall  upon  a  sidewalk  covered  with  ice 
and  snow,  where  the  ice.  which  accumulated 
from  natural  causes,  was  less  than  an  inch 
in  thickness,  and  the  person  injured  knew 
when  he  went  upon  it  that  it  was  smooth 
and  slipperv,  and  he  fell  liecause  of  its 
Digest   1-52  L.R.A.(N.S.) 


smooth  and  slippery  condition,  and  no  other 
defect  is  claimed.  Evans  v.  Concordia,  7: 
933,  85  Pac.  813,  74  Kan.  70.       (Annotated) 

252.  A  city  has  no  inherent  power,  as  a 
public  corporation,  to  go  vipon  private  prop- 
erty outside  of  a  highway  to  remove  melting 
snow  and  stop  the  discharge  of  water  from 
a  pipe  in  order  to  prevent  the  accumulation 
of  ice  on  a  sidewalk,  since  the  jjipe  and  the 
accumulated  snow  do  not  constitute  a  nui- 
sance per  se.  Udkin  v.  New  Haven,  14:  £63, 
68  Atl.  253,  80  Conn.  291. 

253.  The  statutory  duty  of  a  municipal 
corporation  to  keep  its  streets  in  repair  does 
not  call  for  or  justify  entrance  upon  private 
property  to  deal  with  causes  producing  ice 
on  a  sidewalk,  the  cause  of  complaint  bfing 
not  of  itself  a  direct  source  of  dangei,  or,  if 
such,  not  being  susceptible  of  remedial  meas- 
ures which  can  be  reasonably  employed  in 
the  highway.  Udkin  v.  New  Haven,  14:  868, 
68  Atl.  253,  80  Conn.  291. 

254.  A  municipal  corporation  which  a?ain- 
tains,  without  drainage,  a  sidewalk  along  a 
street  crossing  a  railroad  below  grade  in 
such  a  manner  that,  by  reason  of  its  grade 
and  formation,  ice  accumulates  and  remains 
on  it  in  freezing  weather  so  as  to  be  un- 
safe for  pedestrians  using  it,  without  any 
attempt  to  remove  the  ice,  will  be  held  lia- 
ble for  injuries  to  a  pedestrian  who  falls 
thereon,  if  the  jury  finds  that  the  conditions 
existing  at  the  time  of  the  accident  are  due 
to  the  city's  negligence.  Holbert  v.  Phila- 
delphia, 20:  201,  70  Atl.  746,  221  Pa.  266. 

( Annotated ) 
Depression  oT  liole  in  pavement. 

255.  A  city  is  not  liable  for  injuries  sus- 
tained by  one  thrown  from  his  wagon  when 
his  horse  ran  away,  where  the  animal  took 
fright  at  the  flapping  of  the  wagon  cur- 
tains, which  became  loosened  when  the 
wheels  ran  into  a  depression  in  the  pavement 
from  3  to  5  inches  deep,  since  the  street  was 
in  a  reasonably  safe  condition.  Dayton  v. 
Glaser,  12:  916,  81  N.  E.  991,  76  Ohio  St. 
471. 

256.  That  a  pedestrian  chose  a  dark  alley, 
instead  of  a  safe  and  lighted  street,  to 
reach  his  destination,  does  not  relieve  the 
municipal  corporation  from  liability  for  in- 
juries received  from  a  hole  in  the  pavement 
of  the  alley.  Covington  v.  Lee,  2:  481,  89  S. 
W.  493,  28  Ky.  L.  Rep.  492. 

6.  Defect  in  sidewalk. 

(See  also  same  heading  in  Digest  L.E.A. 
1-10.) 

As  to  ice  and  snow  on  sidewalks,  see  supra, 
144-154. 

Liability  of  abutting  owner,  see  infra,  297- 
299. 

Contributory  negligence  in  use  of  sidewalk, 
see  infra,  IV.  c. 

Damages  for  injury  to  pedestrian  on  defec- 
tive sidewalk,  sge  Damages,  372,  376. 

Notice  to  street  commissioners  and  city 
council  of  unsafe  condition  of,  see  Evi- 
dence, 1586. 


HIGHWAYS,  IV.  b,  1. 


1401 


Proximate  cause  of  injury,   see  Proximate 

Cause,  11!),  120. 
Question   for   jury  as  to   unsafety  of  walk, 

see  Trial,  411. 
Correctness  of  instructions  as  to  negligence, 

see  Irial,  1957,  1058. 
See  also  supra,  172. 

257.  Under  a  city  charter  making  it  the 
duty  of  the  owners  or  occupants  of  premises 
to  keep  the  sidewalk  in  front  of  their  lots 
in  repair,  or  pay  the  expenses  incurred  by 
the  municipality  in  doing  so,  and  further 
providing  that,  in  case  of  an  injury  to  per- 
son or  property  by  reason  of  any  defect  in  a 
sidewalk,  for  wliicli  the  city  would  be  liable, 
arising  from  or  produced  by  the  wrong,  de- 
fault, or  negligence  of  any  person  other  than 
the  city,  the  guilty  person  shall  be  primarily 
liable  therefor,  and  the  city  shall  not  be  lia- 
ble therefor  in  advance  of  the  exhaustion  by 
the  injured  person  of  all  legal  remedies  to 
enforce  the  private  liability, — such  liability 
is  not  deemed  to  be  of  the  character  of  that 
created  by  Wis.  Rev.  Stat.  1898,  §  1339,  re- 
specting the  service  of  written  notice  of  in- 
jury, but  such  as,  upon  common-law  prin- 
ciples, governs  the  liability  of  a  city  inde- 
pendently of  statute.  Hay  v.  Baraboo,  3: 
84,  105  N.  W.  654,  127  Wis.  1. 

258.  The  fact  that  a  sidewalk  along  a 
freight  depot  has  been  driven  on  and  across 
for  many  years  by  teamsters  desiring  to 
reach  the  depot  from  the  roadway  does  not 
render  the  municipality  responsible  for  its 
safety  for  such  use.  Webster  v.  Vanceburg, 
19:  752,  113  S.  W.  140,  130  Ky.  320. 

259.  A  municipal  corporation  is  not 
bound  to  make  the  necessary  alterations  in 
a  sidewalk  along  a  railroad  freight  depot 
to  permit  wagons  to  be  driven  from  the  road- 
way to  the  depot.  Webster  v.  Vanceburg, 
19:  752,  113  S.  W.  140,  130  Ky.  320. 

260.  That  the  slippery  condition  of  an 
iron  door  covering  an  excavation  under  a 
sidewalk  is  caused  by  rain  does  not  absolve 
the  city  from  liability  for  injury  due  to  a 
fall  thereon,  if  the  door  becomes  dangerous 
whenever  it  is  wet.  Smith  v.  Tacoma,  21: 
1018,  98  Pac.  91,  51  Wash.  101. 

2G1.  A  city  which  permits  a  smooth  iron 
door  to  cover  an  excavation  in  a  sidewalk 
for  a  long  period  of  time,  during  which 
many  persons  fall  upon  it,  may  be  found 
liable  for  a  personal  injury  caused  by  such 
fall.  Smith  v.  Tacoma,  21:  1018,  98  Pac.  91, 
51  Wash.  101. 

202.  A  municipal  corporation  is  not  liable 
for  injury  to  a  pedestrian,  caused  by  his 
falling  on  a  sidewalk  because  of  a  depres- 
sion due  to  the  settling  of  one  edge  of  a 
concrete  square  in  the  walk  IJ  inches  below 
the  level  of  the  adjoining  square,  although 
one  or  two  persons  had  tripped  on  the 
unevenness  before,  and  one  of  the  trustees 
of  the  municipality  had  slightly  turned  his 
ankle  at  the  spot,  and  reported  the  fact  to 
the  board  of  trustees.  Terrv  v.  Perry,  35: 
666,  92  N.  E.  91,  199  N.  Y.  79. 

263.  A  niche  in  a  sidewalk  to  enable  it  to 
pass  a  standing  tree,  which,  after  the  tree 
is  removed,  is  filled  with  dirt  and  sodded. 
Digest  1-52  L.R.A.(N.S.) 


so  as  to  leave  the  surface  2J  inches  below 
the  surface  of  the  walk,  is,  as  matter  of 
law,  not  a  defect  which  will  render  the  mu- 
nicipality liable  in  case  a  pedestrian  slips 
or  stumbles  over  the  unevenness  and  falls  to 
his  injury.  Lexington  v.  Cooper,  43:  1158, 
145  S.  W.  1127,  148  Ky.  17.  (Annotated)' 
!Lack  of  repair. 
Error  in  instruction  in  action  for  injuries, 

see  Appeal  and  Error,  1342. 
Admissibility,    in    action    by    child    for    in- 
juries,   of    admissions    by    parent,    see 
Evidence,  1235. 
Imputing  negligence  of  parent  to  child,  see 

Negligence,  275. 
Question  for  jury  as  to  negligence,  see  Trial, 

410. 
Evidence    of     contradictory    admissions    of 
next  friend  of  child  injured  on,  see  Wit- 
nesses, 166. 
264.  A  board  in  a  wooden  sidewalk  laid  on 
stringers     resting     upon     smooth     ground, 
not  dangerous  in  character,  but  so  unsound 
as  to  give  way  under  the  weight  of  a  pedes- 
trian and   injure  him,   is  an   actionable   de- 
fect under  the  law  of  West  Virginia.    Camp- 
bell V.  Elkins,  2:  159,  52  S.  E.  220,  58  W. 
Va.  308. 

l».  Liahility  of  others, 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  contributory  negligence  of  person  in- 
jured, see  infra,  IV.  c. 

Injury  by  animal  on  highway,  see  Animals, 
12,  18-22. 

Injury  by  automobile  on,  see  Automobiles. 

Injury  by  electric  wires,  see  Electricity, 
22-39;    Proximate   Cause,  58. 

Recovery  over  by  municipality  against  per- 
son primarily  liable  for  injury,  .see  Ap- 
peal and  Error,  1137;  Contribution 
AND  Indemnity,  8-13,  16;  Estoppel, 
43. 

Federal  court  following  state  decision  as  to 
liability  of  one  placing  building  mater- 
ials in  street  for  resulting  injury,  see 
Courts,  324. 

Placing  or  leaving  explosives  in  highway, 
see  Evidence,  1527;  Explosions  and 
Explosives,  1,  2. 

Evidence  as  to  condition  before  and  after 
change  alleged  to  have  caused  injury, 
see  Evidence,  1871. 

Sufficiency  of  evidence  to  show  negligence, 
see  Evidence,  2167-2169. 

Injury  resulting  from  fright  caused  by  neg- 
ligent collision  on  highway,  see  I'kight, 
7. 

Conclusiveness  of  judgment  against  one  con- 
structively responsible  in  subsequent 
action  against  one  primarily  liable,  see 
Judgment,  233. 

Liability  of  public  utility  company  for  in- 
jury to  pedestrian  falling  into  unguard- 
ed excavation,  see  Masteb  and  Serv- 
ant, 1001. 


1402 


HIGHWAYS,  IV.  b,  1. 


Liability  for  injury  due  to  negligent  driving, 
see  Negligence,  I.  d. 

Injury  to  children  by  snatch  block  left  in 
highway,  see  Negligence,  128. 

Injury  to  child  by  push  car  standing  in 
highway,  see  Negligence,  160,  101. 

Opening  into  underground  mill  race  in  pub- 
lic highway,  see  Negligence,  170. 

Proximate  cause  of  injury,  see  Proximate 
Cause,  58,  112,  117. 

Instructions  in  action  for  injuries,  see 
Tbial,  884,  900. 

265.  One  contracting  with  a  county  to 
keep  its  roads  in  repair,  failure  to  do  which 
is  by  statute  made  a  misdemeanor,  is  lia- 
ble in  tort  for  injury  to  a  horse  driven  with 
■due  care  on  the  highway,  because  of  a  de- 
fective condition,  created  and  maintained 
by  him,  although  the  county  would  not  have 
been  liable  for  the  injury  had  it  undertaken 
to  maintain  the  highway  itself.  Wade  v. 
<]iray,  43:  1046,   61   So.   168,   104   Miss.    151. 

266.  A  manufacturing  company  from 
whose  plant,  owing  to  an  accident  to  the 
boiler,  hot  water  escaped  into  the  gutter 
of  a  near-by  street  thereby  attracting  chil- 
dren, is  liable  in  damages  for  injury  to  a 
■child  resulting  from  falling  therein  after  a 
watchman  who  had  been  stationed  there 
had  departed,  and  the  place  was  negligently 
left  unguarded.  Palermo  v.  Orleans  Ice 
Mfg.   Co.   40:  671,  58   So.   589,   130   La.   833. 

267.  A  municipal  permit  to  turn  clear 
water  into  a  sewer  will  not  absolve  the  li- 
censee from  liability  for  injuries  caused  by 
its  turning  steam  therein.  Smith  v.  Edison 
Electric  Illuminating  Co.  15:  957,  84  N.  E. 
434,  198  Mass.  330.  (Annotated) 

268.  The  jury  may  find  the  turning  by  a 
manufacturer  of  steam  into  a  sewer  in 
such  quantities  that  it  escapes  and  envel- 
opes a  pedestrian  on  the  sidewalk  to  be 
negligence  and  the  proximate  cause  of  an  in- 
jury to  the  pedestrian  through  a  fall  on  ac- 
count of  becoming  bewildered  by  the  steam, 
so  as  to  render  the  manufacturer  liable  for 
the  injurv.  Smitli  v.  Edison  Electi'ic  Illu- 
minating' Co.  15:  957,  84  N.  E.  434,  198 
Mass.  330. 

Tenants. 

Liability  of  landlord,  see  infra,  IV.  b,  3,  b. 

See  also  infra,  316. 

269.  A  tenant  in  possession  of  a  building 
abutting  on  a  sidewalk,  upon  which  is  in- 
securely fastened  a  pipe  to  carry  water,  is 
liable  for  injury  to  a  person  on  the  walk 
by  the  fall  of  the  pipe,  where  he  has  obli- 
gated himself  to  keep  the  building  in  re- 
pair. Mitchell  V.  Brady,  13:  751,  99  S.  W. 
266,  124  Ky.  411. 

270.  A  tenant  in  possession  of  a  bxiilding 
is  not  liable  for  injury  to  one  passing  upon 
an  adjoining  public  way  by  the  mere  fact 
that  something  is  thrown  upon  him  from 
■one  of  the  windows  of  the  building,  without 
anything  to  show  that  the  tenant,  or  any  of 
his  servants,  were  in  fault.  Carl  v.  Young, 
14:  425,  68  Atl.  593,   103  Me.   100. 

(Annotated) 
Obstructions. 

Liability  of  municipality,  see  supra,  IV.  a,  4. 
Digest'  1-52   L.R.A.(N.S.) 


Hand  car  in  highway  as  obstruction,  see  in- 
fra, 280. 

Obstruction  by  electric  wire,  see  Electric- 
ITY,  37. 

As  pro.ximate  cause  of  injury,  see  Proxi- 
mate Cause,  112. 

271.  One  piling  building  material  in  the 
street  owes  a  duty  to  children  of  such  ten- 
der years  as  to  be  incapable  of  contributory 
negligence  or  trespass,  who  to  his  knowl- 
edge are  accustomed  to  play  in  the  vicinity, 
to  use  ordinary  care  to  prevent  the  piles 
from  being  in  such  unstable  condition  as 
would  be  likely  to  cause  injury  to  such  of 
the  children  as  might  come  in  contact  with 
them.  Snare  &  Triest  Co.  v.  Friedman, 
40:  367,  169  Fed.  1,  94  C.  C.  A.  369. 

272.  That  a  horse  is  running  beyond  con- 
trol when  he  is  injured  because  of  an  un- 
lawful and  improper  structure  in  the  high- 
way does  not  prevent  recovery  against  the 
party  maintaining  the  obstruction,  for  the 
injury  to  the  horse,  where  the  runaway  was 
not  attributable  to  the  plaintiff's  negli- 
gence. Opdycke  v.  Public  Service  R.  Co. 
(N.  J.  Err.  &  App.)  29:  71,  76  Atl.  1032, 
78  N.  J.  L.  576. 

273.  That  one  subject  to  vertigo  is  seized 
with  an  attack  while  walking  on  a  side- 
walk, and  staggers  against  an  obstruction 
negligently  placed  upon  the  walk,  a  fall 
upon  which  causes  his  death,  will  not  de- 
stroy the  liability  for  the  accident  of  the 
one  i-esponsible  for  the  obstruction.  Wood- 
son V.  Metropolitan  Street  R.  Co.  30:  931, 
123   S.   W.  820,  224  Mo.  685. 

274.  A  telephone  company  may  be  held 
liable  in  damages  to  persons  injured  through 
the  obstruction  of  a  highway  by  its  wires. 
Louisville  Home  Teleph.  Co.  v.  Gasper,  9: 
548,  93  S.  W.  1057,  123  Ky.  128. 

275.  A  guy  wire  of  a  telephone  pole  an- 
chored in  an  alley  18  inches  from  the  fence, 
the  color  of  which  it  so  nearly  resembles  as 
to  be  practically  indiscernible,  may  be 
found  to  be  an  obstruction  dangerous  to  in- 
dividuals and  vehicles  passing  through  the 
alley.  Louisville  Home  Teleph.  Co.  v.  Gas- 
per, 9:  548,  93  S.  W.  1057,  123  Ky.  128. 

276.  An  electric  company  which,  in  string- 
ing wires  on  its  poles,  which,  in  obedience 
to  a  municipal  ordinance,  it  has  removed  in- 
side the  curb  line  on  a  p^  "  lie  street, 
stretches  a  rope  across  the  walk  to  warn 
pedestrians  not  to  pass  under  the  poles  on 
which  its  men  are  at  work,  is  not  liable  for 
the  death  of  a  child  which,  in  running  along 
the  walk,  comes  in  contact  with  the  rope, 
and  is  thrown  down  and  fata'Jy  injured. 
Newport  News  &  O.  P.  R.  &  Electric  Co. 
V.  Clark,  6:  905,  52  S.  E.  1010,  105  Va.  205. 

( Annotated ) 
Frightening  animals. 
Municipal    liability,    see    supra,    174,    199- 

202,  205. 
Frightening  of  horse  by  animal  at  large  in 

highway,  see  Animals,  21,  22. 
Evidence   as  to   fright   of   horses   by  steam 

shovel,  see  Evidence,   1145,   1864. 
By  electric  car,  see  Interurban  Railway,  4. 
By  discharge  of  steam,  see  Negligence,  19, 

238. 


HIGHWAYS,  IV.  b,  2. 


1403 


By  smoke  from  engine  outside  of  liighway, 

see  Negligence,  20. 
Pleading  in  action  for  injuries,  see  Pleau- 

ING,  335,  336. 
*       Question  for  jury  as  to  necessity  of  giving 

warning,  see  Trial,  406. 
See  also  Railroads,  1G8. 

277.  A  railroad  company  whose  section 
men  are  engaged  in  removing  decayed  ties 
from  tlie  roadbed  and  throwing  them  down 
the  embanliment  upon  which  the  track  is 
laid,  into  a  depression  between  the  track 
and  an  adjoining  highway,  is  not  liable  for 
injury  due  to  the  frightening  of  a  horse 
passing  on  the  highway,  by  a  tie  thrown 
into  the  depression  in  the  usual  and  cus- 
tomary manner,  where  the  work  was  not 
calculated  to  frighten  a  horse  of  ordinary 
gentleness.  Chandler  v.  Illinois  C.  R.  Co. 
43:  113,  100  N.  E.  152,  256  111.  259. 

278.  A  telephone  company  which  has  the 
riglit  to  maintain  its  line  along  a  highway 
is  not  liable  for  injury  caused  by  frighten- 
ing the  horse  of  a  traveler  by  bright  new 
coils  of  wire  temporarily  placed  between 
the  traveled  part  of  the  highway  and  the 
fence,  to  be  used  in  stringing  a  new  line 
on  its  poles,  although  they  remain  where 
placed  for  several  days  before  the  accident 
occurs.  East  Tennessee  Teleph.  Co.  v.  Par- 
sons, 47:  1021,  15'J  S.  W.  584,  154  Ky.  801. 

279.  A  reel  of  lead  pipe  needed  for  its 
work,  which  is  placed  by  a  telephone  com- 
pany in  line  with  its  poles  near  the  curb 
of  a  street  in  which  it  is  engaged  in  string 
ing  its  wires,  under  lawful  authority  from 
the  municipality,  is  not  an  unlawful  ob- 
struction to  travel,  which  will  render  it 
liable  for  injuries  cavised  by  a  traveler's 
horse  becoming  frightened  at  it,  although 
it  is  of  such  appearance  as  would  be  likely 
to  frighten  well-broken  horses  not  accus- 
tomed to  it.  Simonds  v.  Maine  Teleph.  & 
Teleg.  Co.  28:  942,  72  Atl.  175,  104  Me.  440. 

280.  A  hand  car  removed  from  the  track 
by  railroad  employees  within  the  limits  of 
the  highway  at  a  crossing,  to  permit  a  train 
to  pass,  is  not  an  unlawful  obstruction  of 
the  way,  which  will  render  the  railroad  com- 
pany liable  for  injuries  due  to  the  frighten- 
ing of  a  horse  by  it.    Webster  v,  Chicago. 

B.  &   Q.   R.   Co.   42:  568,    158   Fed.    769.   86 

C.  C.  A.   125.  (Annotated) 

281.  A  rrilroad  company  which  uses  a 
piece  of  tin  roofing,  bright  side  up,  to  pro- 
tect some  freight  in  its  possession  wliich 
it  has  piled  near  the  highway,  is  not  liable 
for  injuries  to  a  traveler  on  the  highway 
whose  horse  shies  at  the  light  reflected  from 
the  tin.  in  such  a  way  that  he  is  thrown 
from  the  vehicle.  Davis  v.  Pennsylvania  R. 
Co.  12:  1152,  67  Atl.  777,  218  Pa.  463. 

(Annotated) 

282.  One  who,  in  erecting  a  structure 
over  a  public  street,  negligently  permits  a 
rope  to  hang  across  the  street  so  low  as  to 
prevent  the  passage  of  a  buggy  with  the  top 
up,  is  responsible  for  an  injury  to  a  traveler 
whose  horse  is  frightened  by  the  swinging 
of  the  rope  as  it  is  about  to  pass  under  it, 
whether  it  is  done  by  one  of  his  servants, 
or  by  a  stranger;  and  he  cannot  defeat  li- 
Digest  1-52  I..R.A.(N.S.) 


ability  if  the  act  was  that  of  a  stranger,  on 
the  theory  that  such  act  is  an  independent 
cause    for    which    he    is    not    responsible. 
Pennsylvania  Steel  Co.  v.  Wilkinson,  16:  200, 
69  Atl.  412,  107  Md.  574. 

283.  One  placing  in  a  highway  a  nuisance 
calculated  to  frigliten  horses  of  ordinary' 
gentleness  cannot  escape  liability  for  in- 
juries caused  by  the  frightening  of  a  horsu 
thereon,  by  the  fact  that  the  horse  was  vi- 
cious, and  that  such  viciousness  might  have 
contributed  to  the  injury.  Stedman  v. 
O'Neil,  22:  1229,  72  Atl.  923,  82  Conn.   199. 

( Annotateii ) 

284.  A  road  contractor  whose  machinery 
for  the  preparation  of  materials  for  his 
work  is  of  the  usual  kind,  and  located  by 
the  side  of  the  road  where  it  may  lawfully 
be,  is  not  liable  for  injury  to  one  attempt- 
ing to  drive  a  horse  past  it,  merely  be- 
cause an  automatic  safety  valve  upon  the 
engine  lets  go  just  as  he  is  passing,  and 
frightens  his  horse,  so  that  it  shies  and 
brings  him  in  contact  with  a  passing 
vehicle,  throwing  him  from  the  carriage. 
Lane  Bros.  Co.  v.  Barnard,  31:  1209,  69  S. 
E.  969,  111  Va.  680.  (Annotated) 
Excavations. 

285.  The  privilege  granted  by  a  municipal 
corporation  to  a  public  utility  company,  of 
making  excavations  in  a  sidewalk,  does  not 
authorize  the  company  to  leave  the  excava- 
tion so  made  unguarded,  or  to  dispense  with 
all  precautions  whereby  those  wno  are  right- 
fully using  the  sidewalk  may  be  warned  of 
the  existence  of  danger.  Rock  v.  American 
Constr.  Co.  14:  653,  45  So.  741,  120  La.  831. 
Horse  race. 

Liability  of  municipality  for,  see  supra,  210. 
211. 

286.  The  racing  of  five  or  six  wild  and  un- 
unbroken  horses  upon  the  street  of  a  city 
where  a  large  crowd  is  gathered  is  a  dan- 
gerous and  illegal  use  of  such  street,  for 
which  a  commercial  club  and  its  officers  and 
agents,  at  wliose  instance  and  under  whose 
supervision  such  race  is  conducted,  are  lia- 
ble to  a  traveler  upon  such  street  who,  with- 
out fault  on  his  part,  is  struck  and  injured 
by  one  of  the  horses  in  the  race.  Marth  v. 
Kingfisher,  18:  1238,  98  Pac.  436,  22  Okla. 
602. 

Repairing  Tiragon  in  street. 
Presumption  of  negligence  of  owner  of  cart 

whose  driver  attempts  to  repair  it  in 

public  street,  see  Evidence,  444. 
Owner's  liability  for  negligence  of  stranger 

called   by   driver  to  his  assistance,   see 

Master  and  Servant,  24. 

287.  The  owner  of  a  cart  who  permits  it 
to  be  out  of  repair  is  liable  for  injury  to  a 
person  on  the  street,  by  the  fall  of  the  pole 
while  the  driver  is  attempting  to  repair  it, 
which  would  not  have  happened  but  for  the 
condition  of  the  cart.  Hollidge  v.  Duncan, 
17:  982,  85  N.  E.  186,  199  Mass.  121. 


2.  Puhlic  officials. 

same   heading   in   Di 

288.  Township    highway    officers    who,    in 


(See   also   same   heading   in   Digest   L.R.A. 
1-10.) 


1404 


HIGHWAYS,  IV.  b,  3. 


the  repair  of  a  road  within  their  district, 
removed  a  culvert  extending  across  the 
same,  and  negligently  and  carelessly  left 
the  resulting  excavation  open  and  exposed 
over  night  without  lights,  guards,  or  warn- 
ings of  any  kind,  are  liable  to  one  who, 
traveling  along  the  road,  unaware  of  the 
dangerous  condition  thereof,  ran  into  the 
excavation  so  created,  notwithstanding  the 
town  of  which  they  are  officers  is  not  liable. 
Tholkes  v.  Decock,  52:  142,  147  N.  W.  648, 
125  Minn.  507.  ( Annotated ) 

3.  Abutting  owners. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Contributory  negligence  of  person  injured, 
see  infra,  IV.  c. 

Joinder  of  municipality  and  abutting  owner 
in  one  action,  see  AcTiois'  OB  Suit,  117. 

Recovery  over,  by  city  against  abutting 
owner,  see  Contribution  and  Indem- 
nity, 10. 

Negligence  of  independent  contractor  per- 
mitting fall  of  object  on  pedestrian,  see 
Master  and  Servant,  1002. 

See  also  supra,  238. 

288a.  That  a  child  is  at  play  in  a  public 
street  does  not  absolve  the  abutting  owner 
from  the  duty  to  exercise  ordinary  care  to 
refrain  from  injuring  him.  Compty  v.  C.  H. 
Starke  Dredge  &  Dock  Co.  9:  652,  109  N.  W. 
650,   129  Wis.  622. 

289.  An  owner  of  property  is  not  liable 
for  injuries  to  a  pedestrian  caused  by  step- 
ping on  a  tomato  hidden  by  straw  upon  the 
sidewalk  adjoining  his  premises,  under  an 
ordinance  of  the  city  in  which  the  accident 
occurred,  which  makes  it  unlawful  for  any 
person  to  throw  or  leave  upon  the  side- 
walk any  straw,  rubbish,  or  other  refuse, 
where  there  is  no  proof  that  such  owner 
had  violated  the  ordinance,  or  was  in  any 
way  responsible  for  the  presence  of  the 
tomato  upon  the  sidewalk.  Riseman  v. 
Havden  Brothers,  29:707,  126  N.  W.  288, 
86  "^Neb.    610.  (Annotated) 

290.  The  abutting  property  owner  is  lia- 
ble for  injury  to  a  pedestrian  in  falling  over 
a  covering  which  constitutes  an  obstruction 
to  footmen,  placed  by  an  independent  con- 
tractor over  a  repaired  sidewalk  without 
signals  or  guard  to  protect  the  public  from 
injurv  after  dark.  Kampmann  v.  Rothwell, 
17:  758,  109  S.  W.  1089,  101  Tex.  535. 

( Annotated ) 
Fall  of  a\irning  or  bracket. 

291.  One  from  whose  building  an  awn- 
ing falls,  to  the  injury  of  a  passer-by  on 
the  highway,  must,  to  avoid  liability  for 
the  injury,  prove  that  all  proper  and  rea- 
sonable care  had  been  employed  in  the  con- 
struction and  maintenance  of  the  awning. 
Potter  V.  Rorabaugh-Wiley  Dry  Goods  Co. 
32:  45,  112  Pac.  613,  83  Kan.  712. 

292.  It  is  the  duty  of  one  who  projects 
or  maintains  an  awning  over  a  street  to 
Digest   1-52  I-.R.A.(N.S.) 


keep  it  from  becoming  dangerous  to  pedes- 
trians lawfully  upon  tlie  street.  Potter  v. 
Rorabaugh-Wiley  Dry  Goods  Co.  32:  45,112 
Pac.   01.3,  83  Kan.   712. 

293.  In  the  absence  of  any  issue  as  to 
nuisance,  the  liability  of  the  owner  of  a 
building  for  damages  sustained  by  a  trav- 
eler on  the  highway,  due  to  the  fall  of  an 
awning  attached  to  the  building,  is  to  be 
determined  upon  the  principles  of  negli- 
gence, in  accordance  with  the  maxim,  lies 
ipsa  loquitur;  and  not  upon  the  doctrine  of 
insurance  of  safety.  Waller  v.  Ross,  12: 
721,  110  N.   W.  252,   100  Minn.  7. 

(Annotated) 

294.  One  not,  acting  under  legislative  au- 
thority maintains  an  awning  over  a  pub- 
lic sidewalk  at  his  peril;  and  a  traveler  in- 
jured thereby  who  is  himself  free  from 
blame  may  hold  the  owner  of  the  awning 
liable  for  the  injury,  regardless  of  the  ques- 
tion of  negligence  in  its  construction  and 
maintenance.  McCrorey  v.  Garrett,  24:  139, 
64  S.  E.  978,  109  Va.  645.  (Annotated) 

295.  The  mere  fall  of  an  ornamental 
bracket  from  a  building,  to  the  injury  of 
a  person  on  the  adjoining  sidewalk,  is  not 
evidence  of  negligence  on  the  part  of  the 
owner  of  the  building.  Joyce  v.  Black,  27: 
863,  75  Atl.  602,  226  Pa.  408. 
Building   materials. 

Right  to  place  building  materials  in  street, 
see  supra,  77. 

296.  The  lawful  placing,  under  the  right 
of  the  abutting  property  owner,  of  building 
materials  in  the  street,  does  not  destroy  its 
public  character,  so  as  to  render  persons 
thereon  trespassers,  and  absolve  employees 
of  the  abutting  owner  from  the  duty  of  ex- 
ercising ordinary'  care  towards  them. 
Compty  V.  C.  H.  Starke  Dredge  &  Dock  Co. 
9:  652,  109  N.  W.  650,  129  Wis.  622. 
Defects   in   sidew^alk. 

Municipal  liability,  see  supra,  IV.  a,  6. 
As  to  coal  hole  or  trap  door  in,  see  infra, 
307-309,   317-320. 

297.  Nothing  short  of  language  unmistak- 
ably creating  a  liability  of  the  owner  or  oc- 
cupant of  premises  in  front  of  which  a  side- 
walk is  located,  for  damages  to  person  or 
property  caused  by  the  insufficiency  of  such 
walk,  and  making  such  liability  supersede 
to  any  extent  that  ot  the  city  under  Wis. 
Rev.  Stat.  1898,  §  1339,  requiring  written 
notice  of  an  injury  to  be  served  upon  the- 
city  within  fifteen  days, — can  legitimately 
be  given  that  eflect.  Hay  v.  Baraboo,  3: 
84,  105  N.  W.  654,  127  Wis.  1. 

298.  A  city-charter  provision  making  it 
the  duty  of  the  owners  or  occupants  of 
premises  in  front  of  which  sidewalks  are  lo- 
cated to  keep  such  walks  in  repair  or  pay 
the  expenses  incurred  by  the  municipality 
in  doing  so,  does  not  impliedly  make  such, 
owners  or  occupants  liable  to  travelers  for 
injuries  occasioned  bj-  the  walks  being  out 
of  repair.  Hay  v.  Baraboo,  3:  84,  105  N.  W. 
654,  127  Wis.  1.  (Annotated) 

299.  Charter  provisions  making  it  the 
duty  of  owners  or  occupants  of  premises  to 
keep  the  sidewalks  in  front  of  their  ;)remis^ 


HIGHWAYS,  IV.  b,  3. 


140c 


in  repair,  or  pay  the  expenses  incurred  by 
the  city  in  doing  so,  and  declaring,  in  case 
of  ^n  injury  to  person  or  property  by  reason 
of  a  defect  in  a  sidewalk,  arising  from  the 
wrong,  default,  or  negligence  of  any  person 
but  for  which  the  city  would  be  liable,  that 
the  guilty  person  shall  be  primarily  liable 
therefor, — do  not  give  rise  to  any  liability, 
either  public  or  private,  to  one  injured  by 
reason  of  a  defective  sidewalk;  but  responsi- 
bility for  the  results  to  person  or  property 
from  faulty  construction  of  sidewalks  or 
want  of  repair  rests  wholly  on  Wis.  Rev. 
Stat.  1898,  §  1339,  while  responsibility  for 
the  results  to  person  or  property  of  active 
wrong-doing  creating  a  nuisance  rests  on  the 
common  law.  Hay  v.  Baraboo,  3:  84,  105 
N.  W.  654,  127  Wis.  1. 
Ice  on  sideivalk. 

Municipal  liability  as  to,  see  supra,  244-254. 
Excluding  from  evidence  photograph  in  ac- 
tion for  injuries  on,  see  Appeal  and  Ek- 
KOR,    516. 
Presumption  of  negligence  as  to,  see  Evi- 
dence, 322. 
Injury  by  ice  on  private  way,  see  Pkivate 
Way,  2. 

300.  A  property  owner  who,  for  a  period 
of  two  weeks,  knowingly  permits  ice  formed 
from  water  discharged  by  a  leader  from 
his  building,  to  remain  in  ridges  and  lumps 
upon  the  adjoining  sidewalk,  is  liable  for 
injury  to  a  pedestrian  who  falls  in  attempt- 
ing to  pass  over  it.  Striger  v.  Deickman, 
51:  309,  164  S.  W.  931,  158  Ky.  337. 

(Annotated) 

301.  The  occupant  of  property  owes  no 
duty  to  pedestrians  to  keep  the  sidewalk  in 
front  of  it  free  from  ice  and  snow  coming 
thereon  from  natural  causes,  or  to  guard 
against  the  risk  of  accident  by  scattering 
ashes  or  using  other  like  precautions,  wheth- 
er or  not  any  public  duty  is  imposed  upon 
him  bv  municipal  ordinances.  Dahlin  v. 
Walsh,"^  6:  615,  77  N.  E.  830,  192  Mass.  163. 

( Annotated ) 

302.  One  who  casts  water  upon  a  sidewalk 
so  as  to  form  ice  dangerous  to  pedestrians  is 
liable  for  injury  caused  thereby,  although 
water  from  other  sources  contributes  to  the 
dangerous  condition.  Hvnes  v.  Brewer,  9: 
598,  80  N.  E.  503,  194  Mass.  435. 

303.  One  who  continues  a  condition  cre- 
ated by  his  grantor,  which  collects  surface 
water  into  an  artificial  channel  and  turns  it 
across  the  sidewalk  so  that  it  forms  ridges 
of  ice,  is  liable  to  a  pedestrian  who,  in  the 
exercise  of  due  care,  falls  thereon  to  his  in- 
jury; and  it  is  immaterial  that  the  condi- 
tion has  existed  for  fifty  years.  Hynes  v. 
Brewer,  9:  598,  80  N.  E.  603,  194  Mass.  435. 

(Annotated) 
.304.  A  property  owner  who  throws  water 
from  his  roof,  by  means  of  a  spout,  onto  his 
walk  in  such  a  manner  that  by  the  natural 
slant  it  flows  to  a  public  walk,  where  it 
freezes  and  renders  the  walk  unsafe,  is  lia- 
ble for  injuries  thereby  caused  to  a  pedes- 
trian who  is  himself  in  the  exercise  of  due 
care.  Field  v.  Gowdy,  19:  236,  85  N.  E.  884, 
199  Mass.  568. 

305.  That  a  town  has  negligently  left  a 
Digest  1-52  L.R.A.(N.S.) 


depression  in  a  sidewalk  will  not  relieve 
from  liability  for  injuries  to  a  pedestrian 
who  falls  on  ice  there  accumulated,  the  abut- 
ting owner  who  negligently  turns  water  col- 
lected from  his  roof  onto  the  walk,  and 
thereby  contributes  to  the  injury.  Field  v. 
Gowdy,  19:  236,  85  N.  E.  884,  199  Mass.  568. 
Water  dripping  from  roof. 
Evidence  to  show  negligence  in  casting 
watet"  on  walk,  see  Evidence,  1770. 

306.  A  property  owner  who,  in  the  exer- 
cise of  ordinary  prudence,  has  reasonable 
notice  that  water  from  his  roof,  in  conjunc- 
tion with  any  other  cause,  produces  a  dan- 
gerous condition  upon  a  public  sidewalk,  is 
responsible  for  the  injurv  thereby  caused. 
Field  v.  Gowdy,  19:  236,  85  N.  E.  884,  199 
Mass.  568. 

Vault  under  viralk;  coal  holes;  trap 
doors. 

Effect  of  lease,  see  infra,  317-320. 

Sufficiency  of  notice  of,  see  infra,  388a,  389. 

Recovery  over,  by  property  owner  against 
one  primarily  liable,  see  Contbibution 
AND  Indemnity,  14,  15. 

Evidence  as  to,  see  Evidence,  1870. 

Sufficiency  of  evidence  to  show  knowledge 
by  property  owner  of  dangerous  condi- 
tion of  coal  hole,  see  Evidence,  2169. 

Liability  of  infant  for  negligence  of  servant 
as  to,  see  Infants,  63. 

See  also  supra,  172;  Contkibution  and  In- 
demnity, 10. 

307.  A  property  owner  is  bound  to  use 
reasonable  care  to  keep  a  covering  to  a 
hole  under  the  sidewalk  in  safe  condition, 
although  it  is  next  to  the  building  and  out 
of  the  regular  line  of  travel.  McLaughlin 
V.  Kelly,  50:  305,  79  Atl.  552,  230  Pa.  251. 

308.  Trustees  of  a  church  are  not  bound 
to  keep  the  covering  of  an  opening  leading 
from  the  sidewalk  to  the  cellar  of  the 
church  safe  for  persons  who  attempt  to 
make  use  of  it  to  look  into  the  church  win- 
dows. Louisville  v.  Hayden,  46:  1193,  157 
S.  W.  4,  154  Ky.  258. 

309.  The  owner  of  a  coal  hole  in  a  side- 
walk, and  a  coal  company  using  it  to  put 
coal  into  the  building,  each  owes  the  duty 
to  travelers  upon  the  walk  to  exercise  due 
care  to  prevent  their  falling  into  the  hole, 
of  which  neither  is  relieved  by  the  duty  of 
the  other.  French  v.  Boston  Coal  Co.  11: 
993,  81  N.  E.  265,  195  Mass.  334. 

(Annotated) 
Acts  of  independent  contractor. 
Municipal  liability,  see  supra,  223,  224. 
Liability  of  contractor,  see  infra,  IV.  b,  4. 
Sufficiency  of  complaint,  see  Pleading,  289. 

b.  Effect  of  lease. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Liability  of  tenants,  see  supra,  269,  270. 

Necessity  of  notice,  see  infra,  384,  385. 

Joinder  of  lessor  and  lessee  with  munici- 
pality in  action  for  injury,  see  Pabties, 
201. 


1406 


HIGHWAYS,  IV.  b,  4. 


310.  A  property  owner  who,  when  letting 
the  building,  retains  control  of  the  con- 
<luctor  pipe,  is  liable  for  injury  to  a  pedes- 
trian on  the  adjoining  sidewalk  by  the  fall 
of  ice  from  a  defect  in  the  pipe,  if  he  has 
[icrmitted  the  defect  to  exist  for  a  long 
period  of  time.  Brewer  v.  Farnam,  50:  312, 
94  X.  E.  695,  208  Mass.  448.        (Annotated) 

311.  One  who  lets  property  with  a  gate 
swinging  across  the  sidewalk  contrary  to 
the  provisions  of  an  ordinance  is  liable  for 
injury  to  a  pedestrian  who  comes  in  con- 
tact with  the  gate  when  attempting  to 
pass  the  property  on  a  dark  night.  Knight 
V.  Foster,  50:  286,  79  S.  E.  614,  163  N.  C. 
329.  (Annotated) 
Ice  on  sidewalk. 

Liability   of   abutting  owner   generally,   see 

supra,  300-305. 
Landlord's  liability  for  ice  on  private  way, 

see  Landlord  and  Tenant,  129. 

312.  Although,  contrary  to  statute,  a 
property  owner  lets  the  property  with  a 
conductor  pipe  casting  the  water  on  the 
sidewalk,  so  as  to  create  a  nuisance  in  freez- 
ing weather,  he  will  not  be  liable  for  in- 
jury to  a  pedestrian  therefrom,  if  the  lease 
gave  the  tenant  the  right  to  make  such 
alterations  and  repairs  as  he  deemed  ex- 
pedient, and  obligated  him  to  save  the  land- 
lord harmless  from  any  claim  arising  from 
neglect  to  remove  snow  and  ice  from  the 
walks.  Cerchione  v.  Hunnewell,  50:  300, 
102  N.  E.  908,  215  Mass.  588.       (Annotated) 

313.  A  property  owner  cannot  escape  lia- 
bility for  injury  to  a  pedestrian  through  ice 
formed  on  the  sidewalk  from  water  cast 
thereon  from  a  pipe  constructed  by  him, 
because  at  the  time  of  the  injury  the  prop- 
erty was  in  possession  of  a  tenant.  Ma- 
loney  v.  Hayes,  28:  200,  91  N.  E.  911,  206 
Mass.  1.  (Annotated) 
Fall  of  KJiovr  from  roof. 

314.  A  landlord,  although  not  equipping 
his  building  with  such  leader  pipes  and  con- 
ductors as  a  statute  requires,  is  not  liable 
for  an  injury  caused  by  snow  and  ice  fall- 
ing therefrom,  where  the  tenant  who  al- 
lowed them  to  accumulate  had  complete  con- 
trol over  the  entire  building  under  a  lease 
requiring  him  to  repair  and  to  hold  the 
landlord  harmless  from  damage  claims  for 
failure  to  remove  snow  and  ice  from  the 
roof  and  sidewalks.  Conian  v.  Alles,  14:  950, 
83  N.  E.  1097,  198  Mass.  99. 

Fall   of  virateT  pipe. 

315.  The  owner  of  a  building  abutting  on 
11  sidewalk,  upon  which  is  insecurely  fast- 
ened a  pipe  to  carry  water,  is  not  absolved 
from  liability  for  injury  to  a  person  on  the 
walk  by  the  fall  of  the  pipe,  by  the  fact  that 
the  building  was  in  possession  of  a  tenant 
who  had  obligated  hiTnself  to  keep  the  build- 
ing in  repair.  Mitchell  v.  Brady,  13:  751, 
99  S.  W.  266,  124  Ky.  411. 

316.  That  a  person  injured  on  a  sidewalk 
by  the  fall  of  a  pipe  insecurely  fastened 
to  a  building  abutting  thereon  lived  in 
the  building  will  not  prevent  his  holding  the 
owner  and  the  tenant  responsible  for  the 
condition  of  the  exterior  walls,  liable  for 
Digest  1-52  I,.R.A.(N.S.) 


the  injury.     Mitchell  v.  Brady,   13:  751,  99 

S.  W.  260,   124   Ky.  411. 

Grate;  coal  holes;  trap  doors. 

Liabilitv  of  abutting  owner  generally,  see 
supra,  307-309. 

Necessity  of  notice,  see  infra,  384. 

Evidence  of  conversation  between  tenant  and 
one  collecting  rent,  as  to  repairing  de- 
fective coal  hole,  see  Evidence,  2019. 

Joinder  of  parties  defendant,  see  Parties, 
201. 

See  also  supra,  260,  261. 

317.  A  property  owner  who  renews  a  lease 
at  a  time  when  a  grating  in  the  adjoining 
sidewalk  is  in  a  defective  condition  is  liable 
for  subsequent  injury  to  a  pedestrian 
through  the  giving  way  of  the  grating. 
McLaughlin  v.  Kelly,  50:  305,  79  Atl.  552, 
230  Pa.  251. 

318.  A  property  owner  who  lets  the  prop- 
erty with  a  defective  coal  hole  in  the  side- 
walk is  not  relieved  from  liability  for  in- 
jury to  pedestrians  by  falling  into  it  by 
the  fact  that  the  lessee  covenants  to  yield 
up  the  property  in  good  tenantable  repair 
in  all  respects,  since,  if  it  required  him  to 
repair  this  defect,  he  need  not  have  done 
so  until  just  prior  to  the  expiration  of  the 
lease.  Hill  v.  Hayes,  18:  375,  85  N.  E.  434, 
199  Mass.  411. 

319.  A  property  owner  is  liable  for  injury 
to  a  pedestrian  on  a  sidewalk  who  falls 
through  a  defective  coal  hole  therein,  wliere 
he  negligently  lets  the  premises  with  the 
hole  in  such  a  condition  as  to  be  dangerous 
to  persons  lawfully  using  the  highway.  Hill 
V.  Hayes,  18:  375,  85  N.  E.  434,  199  Mass. 
411. 

320.  The  owner  of  a  building  for  the  bene- 
fit of  which  trapdoors  are  placed  in  the  side- 
walk is  bound  to  maintain  the  doors  so 
that  they  will  be  reasonably  safe  for  pedes- 
trians, where  he  retains  control  of  the  build- 
ing and  its  maintenance,  although  portions 
of  it  are  let  to  tenants.  Seattle  v.  Puget 
Sound  Improv.  Co.  12:  949,  91  Pac.  256,  47 
Wash.  22. 

4.  Contractors. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Abutting  owner's  liability  for  negligence  of, 
see  supra,  290. 

Liability  on  bond,  see  Bonds,  23,  24. 

Presumption  of  negligence  in  construction 
of  sidewalk,  see  Evidence,  443. 

Evidence  of  previous  cave-in,  see  Evidence, 
1854. 

Sufficiency  of  evidence  to  show  negligence, 
see  Evidence,  2167,  2168. 

Conclusiveness  of  judgment  against  contrp*- 
tor,  see  Judgment,  102. 

Who  are  independent  contractors,  see  Mas- 
ter and  Servant,  1036. 

Sufficiency  of  complaint,  see  Pleading,  289. 

See  also  supra,  284. 

321.  Persons  who  have  contracted  to 
deepen  a  railway  cut  across  a  highway  in 
accordance    with    legislative    authority    are 


HIGHWAYS,  IV.  b,  5,  6. 


1407 


bo  id  to  act  reasonably  and  with  due  re- 
gard for  the  rights  of  persona  lawfully  us- 
ing the  highway.  Heinmiller  v.  Winston, 
6:  150,  107  N.  W.  1102,  131  Iowa,  32. 

322.  Where  a  county  is  not  liable  for  in- 
juries caused  by  defects  in  its  highways,  one 
who  contracts  with  it  for  tiie  construction 
of  a  highway  is  not  liable  for  injuries  to 
a  traveler  caused  by  his  leaving  an  open,  un- 
guarded ditch  therein  during  the  progress 
of  the  work,  which  made  it  unsafe  for  pub- 
lic travel.  Schneider  v.  Cahill,  27:  1009,  127 
S.  W.  143,  —  Ky.  — .  (Annotated) 

323.  An  Independent  contractor  for  the 
construction  of  a  public  drain,  who  wrong- 
fully renders  a  public  highway  dangerous 
for  travel  by  dumping  the  earth  excavated 
from  the  drain  thereon,  is  liable  in  damages 
to  a  traveler  who,  without  fault  on  his  part, 
is  injured  in  consequence  of  the  unlawful 
obstruction.  Solberg  v.  Schlosser,  30:  iiii, 
127  N.  W.  91,  20  N.  D.  307. 

324.  One  undertaking  to  repair  a  side- 
walk for  a  property  owner  without  super- 
vision, or  direction,  from  him,  is  liabi'e  to 
him  for  any  sum  he  is  required  to  pay  be- 
cause of  injury  to  a  pedestrian  due  to  fail- 
ure to  place  proper  signals  or  barriers  to 
protect  the  public  from  injury  after  dark, 
whether  he  is  an  independent  contractor,  or 
a  mere  employee.  Kampmann  v.  Rothwell, 
17:  758,  109  S.  W.  1089,  101  Tex.  535. 

S.  Railroads. 

(See  also   same   heading  in  Digest  L.R.A. 

1-10.) 

Contributory  negligence  of  person  injured, 
see  infra,  354. 

Recovery  over  by  city  held  liable  for  in- 
jury, against  railroad  company,  see 
Appeal  and  Ekror,  1137;  Contribu- 
tion AND  Indemnity,  8,  9,  12. 

Conclusiveness  on  railroad  company  respon- 
sible for  accident  of  judgment  against 
city,  see  Judgment,  200,  201. 

Employer's  liability  for  injury  at  defective 
crossing  put  in  by  independent  contrac- 
tor, see  Master  and  Servant,  991. 

Municipal  ordinance  requiring  railway  flag- 
man at  street  crossing,  see  Municipal 
Corporations,  71. 

Who  may  maintain  action  on  railroad's 
agreement  to  keep  street  in  repair,  see 
Parties,  97. 

Sufficiency  of  allegations  as  to,  see  Plead- 
ing, 321. 

Injury    by   trains   at   crossings,    see    Rail- 
roads, II.  d,  3. 
,  Liability   for    frightening   horse,    see   Rail- 
I  roads,  II.  d,  5. 

(Liability  of  railroad  company  for  frighten- 
ing horse  notwithstanding  contributory 
!         negligence   of   driver,   see   Negligence, 
293. 

Question  for  jury  as  to  whether  defect  in 
highway    crossing    caused    injury,    see 
Trial,  170. 
.  Negligence  as  question  for  jury,  see  Trial, 
434,  435. 

325.  The  assumption  by  a  railroad  corn- 
Digest  1-52  L.R.A.(N.S.) 


pany  of  a  charter  duty  to  keep  highway 
crossings  -in  repair  creates  a  liability  for 
failure  to  do  so,  and  gives  a  common-law 
right  of  action  in  favor  of  one  damaged 
thereby.  Milton  v.  Bangor  R.  &  Electric 
Co.   15':  203,  68  Atl.  826,  103  Me.  218. 

326.  The  common-law  liability  of  a  rail- 
road company  for  injury  caused  by  a  de- 
fective crossing  is  not  affected  by  a  charter 
provision  exempting  it  from  liability  unless 
it  has  twenty-four  hours  previovis  notice  of 
the  defect,  and  has  received  notice  of  injury 
within  fourteen  days  afterwards;  the  legis- 
lature not  being  empowered  to  exempt  any 
particular  person  or  corporation  from  the 
operation  of  a  general  law,  statutory  or 
common.  Milton  v.  Bangor  R.  &  Electric 
Co.  15:  203,  68  Atl.  826,  103  Me.  218. 

(Annotated) 

327.  A  statute  which  provides  that  it 
shall  be  the  duty  of  a  railroad  which  crosses 
a  highway  to  make  proper  and  easy  grades 
in  the  highway,  so  that  the  railroad  may 
be  conveniently  crossed,  and  to  keep  such 
crossings  in  good  order,  under  a  penalty  to 
be  recovered  by  action  in  the  name  of  the 
county,  has  the  effect  to  give  an  individual 
injured  by  its  violation  a  right  of  action 
therefor;  and  such  violation  is  negligence 
jter  se.  Strait  v.  Yazoo  &  M.  V.  R.  Co.  49* 
1068,  209  Fed.  157,  126  C.  C.  A.  105. 

0.  Street  railways. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.)         ■'T-yy.'i  yc.   :'.-n>t;_!u   ri,,. 

As  to  contributory  negligence  of  person  in 
jured,  see  infra,  340. 

Presumption  of  negligence  from  fall  of  elec 
trie  wire,  see  Evidence,  411. 

Evidence    of    previous    accidents,    see    Evi- 
dence, 1856,  1857. 

Liability  for  injury  by  street  car,  see  Street 
Railways,  III.  b. 

Question    for    jury    as    to    negligence,    see 
Trial,  440. 

328.  It  is  the  duty  of  a  trolley  company 
which  applies  a  lubricant  to  its  tracks 
along  a  public  street  in  order  that  its  cars 
may  pass  around  a  curve  more  easily,  tn 
make  the  application  in  such  a  manner  as 
not  to  endanger  the  safety  of  persons  enti- 
tled to  use  the  street.  Slater  v.  North 
Jersey  Street  R.  Co.  (N.  J.  Err.  &  App.> 
15:  840,  69  Atl.   163,  75  N.  J.  L.  890. 

(Annotated) 
329.  Consent  granted  pursuant  to  stat- 
ute for  the  construction,  maintenance,  and 
operation  of  a  street  railway  along  a  high- 
way does  not  warrant  the  construction  and 
maintenance  within  the  limits  of  the  high- 
way as  laid  out,  but  outside  of  the  traveled 
way,  of  an  open  trestle  trolley  bridge  that, 
in  design  and  construction,  is  dangerous  to 
ordinary  travel,  and  calculated  to  entrap 
and  kill  horses  and  other  animals  which 
may  reasonably  be  expected  to  attempt  to 
pass  over  it.  Opdycke  v.  Public  Service  R. 
Co.  (N.  J.  Err.  &  App.)  29:  71,  76  At)- 
1032,  78  N.  J.  L.  576. 


1408 


HIGHWAYS,  IV.  c. 


330.  Negligence  cannot  be  imputed  to  a 
street  car  company  merely  because  the  wheel 
of  a  carriage  passing  along  the  street  falls 
into  a  cable  slot.  Miller  v.  United  R.  &  E. 
Co.  17:  978,  69  Atl.  636,  108  Md.  84. 

331.  A  municipal  ordinance  requiring 
street  railways  to  keep  the  space  covered  by 
their  tracks  in  thorough  repair  does  not 
make  them  insurers  of  the  safety  of  passen- 
gers using  such  portion  of  the  street.  Miller 
V.  United  R.  &  E.  Co.  17:  978,  69  Atl.  636, 
108  Md.  84. 

332.  A  street  car  company,  although  not 
bound  to  remove  and  replace  a  barriei 
which  guards  an  excavation  made  by  a 
stranger  across  its  tracks,  is  liable  in  case 
it  assumes  to  remove  the  barrier  and 
neglects  to  replace  it,  to  a  traveler  on  the 
highway  who  falls  into  the  excavation  in 
the  dark,  and  is  injured,  because  of  the 
absence  of  the  barrier.  Dix  v.  Old  Colony 
Street  R.  Co.  24:  567,  89  N.  E.  109,  202 
Mass.  518. 

c.  Cotitributory  negligence. 

(See  also  same  heading  in  Digest  L.R.A 
1-10.) 

Failure  to  instruct  as  to  effect  of  negligence 
of  plaintiff's  driver,  see  Appeal  and 
Error,  1412. 

Of  person  injured  by  automobile,  see  Auto- 
mobiles, II.  b;  Negligence,  213. 

On  bridge,  see  Bridges,  20-23. 

Of  person  injured  by  electricity,  see  Elec- 
tricity, 83,  84. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  488-491. 

Relevancy  of  evidence  as  to,  see  Evidence, 
1797. 

Effect  of  carrying  explosive  from  highway 
before  explosion,  see  Explosion  and 
Explosives,  2. 

Of  person  in  failing  to  protect  property 
against  danger  from  inflammable  mate- 
rial deposited  in  street,  see  Fires,  25. 

Of  person  injured  otherwise  than  by  defects, 
see  Negligence,  II.  c. 

Of  parents  in  permitting  child  to  be  on 
street,  see  Negligence,  231. 

Imputing  negligence  of  driver  to  passenger, 
see  Negligence,  264,  270. 

Allegation  of  freedom  from,  see  Pleading, 
349. 

As  proximate  cause  of  injury,  see  Proxi- 
mate Cause,  164. 

At  railroad  crossing,  see  Railroads,  II.  e,  2. 

Of  person  injured  by  street  car,  see  Street 
Railways,  III.  c. 

Question  for  jurv  as  to,  see  Trial,  170,  217, 
423,  424,  426-429,  770. 

Taking  case  from  jury  because  of,  see  Trial, 
680,  681. 

Instructions  as  to,  see  Trial,  900. 
■  See  also  supra,  164,  256. 

'  333.  To  hold  a  town  liable  for  injuries 
due  to  a  defect  in  the  higliway,  the  traveler 
must  show  affirmatively  that  he  was  in  the 
exercise  of  due  care.  Tripp  v.  Wells,  18: 
1145,  70  Atl.  533,  104  Me.  29. 
Digest  1-52  L.R.A.(N.S.) 


334.  A  citizen  has  the  right  to  assume 
that  the  street  is  in  a  reasonably  safe  con- 
dition for  travel,  and  is  not,  as  a  matter 
of  law,  guilty  of  negligence  in  attempting  to 
run  across  tlie  street,  in  the  usual  manner, 
in  order  to  catch  a  car.  Nesscn  v.  New 
Orleans,  51 :  324,  64  So.  286,  134  La.  455. 

335.  While  persons  traveling  on  a  public 
highway  in  the  nighttime  are  required  to 
exercise  such  ordinary  care  and  caution  as 
a  reasonably  prudent  man  would  exercise 
under  the  circumstances,  and  in  view  of  the 
darkness,  they  have  the  right,  in  the  absence 
of  knowledge  to  the  contrary,  to  act  on  the 
assumption  that  such  highway  is  in  a  rea- 
sonably safe  condition  for  travel  by  night 
as  well  as  by  day,  and  are  not  bound  to 
anticipate  dangerous  defects  therein  with- 
out some  notice  or  other  precaution  taken 
for  their  protection.  Daniels  v.  County 
Court,  37:  1 158,  72  S.  E.  782,  69  W.  Va. 
676.        • 

336.  A  traveler  upon  a  highway  who 
knowingly  or  carelessly  departs  from  a 
known  safe  way  and  goes  heedlessly  across 
the  street  and  beyond  its  limits  and  upon 
the  land  of  an  abutting  owner  and  is  there 
injured  by  falling  over  a  retaining  wall,  is 
guilty  of  contributory  negligence  barring 
recoverj'^  for  such  injuries.  Mineral  City  v. 
Gilbow,  25:  627,  90  N.  E.  800,  81  Ohio  St. 
263. 

337.  One  is  not  precluded,  as  matter  of 
law,  from  recovering  for  injuries  caused  by  a 
temporary  obstruction  in  a  highway,  by  the 
fact  that  it  could  have  been  seen  if  he  had 
looked,  where  his  attention  was  diverted 
from  the  surface  of  the  street  by  an  attempt 
to  reach  a  street  car.  Keith  v.  Worcester  & 
B.  Valley  Street  R.  Co.  14:  648,  82  N.  E.  680, 
196  Mass.  478. 

338.  One  who  leaves  a  horse  attached  to  a 
wagon,  standing  unhitched  in  a  public 
highway,  and  without  having  the  lines  with- 
in reach,  cannot  recover  for  injuries  caused 
by  a  collision  with  an  obstruction  in  the 
highway,  in  case  the  horse  runs  awav.  Den- 
ver V.  Utzler,  8:  77,  88  Pac.  143,  38  Colo.  300. 

(Annotated) 

339.  One  who,  in  attempting  to  drive 
across  a  culvert  after  dark,  goes  over  the 
end  of  it  to  his  injury,  does  not  show  that 
he  was  not  inattentive  and  careless  so  as  to 
prevent  his  holding  the  town  liable  for  the 
injury,  where  he  merely  states  that  he  drove 
into  the  highway  and  drove  along  supposing 
he  was  in  the  middle  of  the  road  until  he 
found  himself  tumbling.  Tripp  v.  Wells, 
18:  1145,  70  Atl.  533,  104  Me.  29. 

340.  One  crossing  a  public  street  at  a 
point  where  a  pavement  crossing  has  been 
laid  has  a  right  to  assume,  unless  warned 
to  the  contrary,  that  it  is  a  safe  place  to 
walk  over,  and  is  not  guilty  of  contributory 
negligence  because,  in  attempting  to  avoid 
an  approaching  car,  she  inadvertently  steps 
upon  a  portion  of  the  crossing  covered  with 
oil  put  there  by  the  street  car  company  as 
a  track  lubricant,  and  is  thrown  down  and 
injured.  Slater  v.  North  Jersey  Street  R. 
Co.  (N.  J.  Err.  &  App.)  15:  840,'69  Atl.  163, 
75  N-.  J.  L.  890. 


HIGHWAYS,   IV.   c. 


1409 


341.  It  is  not,  as  between  a  pedestrian 
and  a  municipality  which  has  negligently 
left  the  catch-basin  at  the  end  of  a  culvert 
unguarded,  negligence  per  se  to  walk  upon 
the  left  side  of  the  street,  nor,  for  the 
purpose  of  avoiding  a  rapidly  approach- 
ing vehicle,  to  turn  to  the  left,  so  as  to 
preclude  recovery  for  the  injuries  sustained 
while  so  doing  by  falling  into  such  opening. 
Neidhardt  v.  Minneapolis,  29:  822,  127  N.  W. 
484,    112  Minn.    149. 

342.  A  pedestrian,  in  using  a  public  side- 
walk, must  be  observant  and  careful  how  he 
is  going,  so  as  to  avoid  dangers  which  or- 
dinary prudence  would  disclose,  although  he 
is  not  required  to  keep  his  eyes  fastened  on 
the  ground  continually  to  discover  points  of 
possible  danger,  or  even  exposed  pitfalls  ly- 
ing directly  in  his  path.  Lerner  v.  Phila- 
delphia, 21:  614,  70  Atl.  755,  221  Pa.  294. 

343.  A  pedestrian  cannot  hold  the  munic- 
ipality liable  for  injury  received  in  broad 
daylight  through  a  defect  in  a  sidewalk,  if 
there  was  nothing  outside  of  himself  to  pre- 
vent his  seeing  the  defect,  or  which  will  ex- 
cuse his  failure  to  observe  it.  Lerner  v. 
Philadelphia,  21:614,  70  Atl.  755,  221  Pa. 
294.  ( Annotated ) 

344.  A  pedestrian  is  not  bound  to  make  a 
critical  examination  of  a  grating  in  a  side- 
walk before  stepping  upon  it.  McLaughlin 
V.  Kelly,  50:  305,  79  Atl.  552,  230  Pa.  251. 

345.  A  city  is  not  liable  for  death,  by  the 
operation  of  a  properly  constructed  eleva- 
tor in  the  sidewalk,  of  a  boy  who,  traveling 
on  the  sidewalk  and  seeing  the  elevator  in 
use  and  raised,  projected  his  head  and 
shoulders  under  the  upper  part  of  the  ele- 
vator, and  was  killed  by  its  descent.  Post 
V.  Clarksburg,  52:  773,  81  S.  E.  562,  — 
W.  Va.  — . 

346.  A  person  walking  upon  a  public 
street  of  a  village  has  a  right  to  presume 
that  anything  placed  thereon  by  the  village 
authorities  is  harmless,  unless  its  appear- 
ance shows  it  to  be  otherwise,  or  unless  he 
has  notice  of  its  dangerous  character.  Pal- 
estine v.  Siler,  8:  205,  80  N.  E.  345,  225  111. 
630. 

347.  A  pedestrian  who  attempts  to  walk 
along  a  gutter  by  the  side  of  the  roadway 
is  bound  to  exercise  ordinary  care  to  avoid 
the  sewer  inlets  which  may  lead  from  the 
gutter.  Mitchel  v.  Richmond,  11:  1114,  57 
S.  E.  570,  107  Va.  193. 

348.  A  pedestrian  who  leaves  a  sidewalk 
merely  because  it  is  wet  and  muddy,  and 
attempts  to  walk  along  the  gutter,  cannot 
hold  the  municipality  liable  for  injuries  due 
to  falling  into  an  unprotected  sewer  open- 
ing. Mitchel  v.  Richmond,  11:  11 14,  57  S. 
E.  570,  107  Va.  193.  (Annotated) 

349.  One  attempting  to  use  a  platform  in 
a  street  for  entrance  to  a  show  connected 
with  a  street  fair  is  required  to  use  such 
degree  of  care  and  caution  for  his  safety  as 
reasonably  prudent  persons  would  use  un- 
der all  the  circumstances  of  the  case.  Van 
Cleef  V.  Chicago,  23:  636,  88  N.  E.  815,  240 
111.  318. 

350.  The  mere  presence  of  ice  on  a  side- 
walk is  not  sufficient  to  admonifjh  a  pedes- 
Digesi  1-52  i:i.R.A.(N.S.) 


trian  that,  by  the  exercise  of  proper  care, 
he  cannot  pass  over  it  in  safety.  Holbert 
V.  Philadelphia,  20:  201,  70  Atl.  746,  221  Pa. 
266. 

351.  A  teamster  who  attempts  to  use  a 
sidewalk  along  a  freight  depot  as  a  drive- 
way to  reach  the  depot  takes  the  risk  of  in- 
jury from  its  being  unsafe  for  that  purpose, 
Webster  v.  Vanceburg,  19:  752,  113  S.  W. 
140,  130  Ky.  320. 

352.  A  pedestrian  is  negligent  in  tripping 
and  falling  over  a  billboard  which  had  been 
thrown  upon  the  sidewalk  in  the  process  of 
removing  it  from  its  location  adjoining  such 
walk,  so  as  to  prevent  his  holding  the  owner 
of  the  board  liable  for  his  injury,  where  it 
was  plainly  visible,  so  that  the  most  casual 
glance  would  have  disclosed  its  presence  and 
location,  although  snow  was  falling  and 
blowing  in  his  face  at  the  time.  Ryan  v. 
Foster,  21:969,  115  N.  W.  595,  137  Iowa, 
737. 

353.  The  driver  of  a  horse  approaching 
an  appliance  which  a  telephone  company  is 
lawfully  using  in  a  highway  is  bound  to 
foresee  that  the  horse  may  be  frightened 
at  it,  and  to  take  measures  to  avoid  or  pre- 
vent the  possible  consequences.  Simonds  v. 
Maine  Teleph.  &  Teleg.  Co.  28:  942,  72  Atl. 
175,  104  Me.  440. 

354.  A  railroad  company  is  not  liable  for 
injury  to  one  who  voluntarily  turns  aside 
from  a  crossing  over  the  track,  left  unsafe 
by  the  company,  and  attempts  to  make  the 
crossing  over  the  unprotected  rails,  and  is 
thrown  from  his  wagon  by  the  unevenness 
of  the  crossing  place.  Moore  v.  Great 
Northern  R.  Co.  28:  410,  107  Pac.  852,  58 
Wash.  1. 

Effect   of   previous   knoivledge   of  de- 
fect. 

See  also  supra,  350. 

355.  That  it  is  not  negligence  per  se  to 
use  a  highway  known  to  be  in  bad  condi- 
tion does  not  imply  a  right  in  a  traveler  to 
compensation  for  injuries  recklessly  in- 
curred, nor  freedom  from  duty  to  suffer  rea- 
sonable abatement  of  strict  legal  rights  in 
respect  to  highways  and  take  reasonable 
measures  for  his  safety,  even  to  the  extent 
of  some  delay  and  effort  to  avoid  injury. 
Shriver  v.  Marion  County  Ct.  26":  377,  66 
S.  E.  1062,  66  W.  Va.  685. 

356.  One  who,  with  full  knowledge,  un- 
necessarily attempts  to  pass  over  an  open 
and  apparent  defect  in  a  highway,  to  his 
injury,  is  guilty  of  contributory  negligence 
as  matter  of  law.  Shriver  v.  Marion  Coun- 
ty Ct,  26:  377,  66  S.  E.  1062,  66  W.  Va. 
685. 

357.  One  who,  because  of  no  safe  and 
available  way,  is  justified  in  assuming  the 
risk  incident  to  an  attempt  to  pass  over  a 
known  defect  in  a  highway,  is  required  to 
exercise  no  more  than  ordinary  care  for  his 
safety  in  so  doing.  Shriver  v.  Marion  Coun- 
ty Ct.  26:  377,  66  S.  E.  1062,  66  W.  Va. 
685. 

358.  Knowledge  of  the  dangerous  condi- 
tion of  a  highway  imposes  a  duty  upon  a 
traveler  to  exercise  such  care  as  the  circum- 

89 


1410 


HIGHWAYS,  IV.  c. 


stances  demand.      Solberg  v.  Schlosser,  30: 
mi,   127  N.  W.  91,  20  N.  D.  307. 

359.  The  mere  fact  that  one  attempting 
to  drive  along  a  highway  on  a  dark  rainy 
night  knew  that  granite  blocks  had  been 
left  lying  adjacent  to  the  macadamized 
portion  of  the  way,  at  a  certain  point,  does 
not  establish  contributory  negligence  on  his 
part  as  matter  of  law,  in  coming  into  col- 
lision with  them.  Blankenship  v.  King 
County,  40:  182,  122  Pac.  616,  68  Wash.  84. 

360.  One  who  has  passed  along  a  street 
four  or  five  times  in  daylight,  and  knows 
that  it  is  in  an  unfinished  and  dangerous 
condition,  due  to  paving  operations,  is  guil- 
ty of  contributory  negligence  as  matter  of 
law,  where  he  attempts  to  cross  the  street 
on  a  dark,  rainy  night,  and  sustains  injuries 
by  falling  on  uneven  ground.  Slaughter  v. 
Huntington,  16:  459,  61  S.  E.  155,  64  W.  Va, 
237.  (Annotated) 

361.  It  is  negligence  as  matter  of  law  for 
one  fully  cognizant  of  the  facts  to  attempt 
to  cross  the  streets  by  climbing  over  an 
obstruction  between  the  pavement  and  the 
curbing  of  a  sidewalk,  when  a  few  steps 
in  either  direction  would  have  carried  him 
around  the  obstruction.  Woodson  v.  Metro- 
politan Street  R.  Co.  30:  931,  123  S.  W.  820, 
224   Mo.    685. 

362.  It  is  not  negligence,  as  a  matter  of 
law,  for  a  person  to  drive  upon  a  danger- 
ous or  defective  highway,  knowing  it  to 
be  such,  unless  the  dangerous  or  defective 
condition  is  such  that  a  person  of  ordinary 
prudence  would  not  attempt  to  drive  over 
it.  Solberg  v.  Schlosser,  30:  iiii,  127  N. 
W.  91,  20  N.  D.   307. 

363.  A  traveler  is  not  required  to  forego 
traveling  upon  a  sidewalk  merely  because 
he  has  knowledge  that  it  is  in  a  somewhat 
defective  condition.  He  has,  as  a  general 
rule,  a  right  to  assume  that  it  is  safe;  and, 
when  he  is  injured  as  a  consequence  of  a 
defect  of  which  he  had  previous  knowledge, 
the  mere  fact  of  his  previous  knowledge 
does  not  per  se  establish  contributory  neg- 
ligence. Jackson  v.  Grand  Forks,  45:  75, 
140  N.  W.  718,  24  N.  D.  601. 

364.  Mere  knowledge  of  the  icy  condition 
of  a  sidewalk  leading  under  a  railroad  track 
which  is  kept  open  and  maintained  for  trav- 
el by  the  municipality  will  not  preclude  one 
from  using  the  walk  without  assuming  the 
risk  of  its  dangerous  condition.  Holbert 
V.  Philadelphia,  20:  201,  70  Atl.  746,  221  Pa. 
266. 

365.  One  who  attempts  to  use  a  sidewalk 
knowing  that  it  is  dangerous  and  can  be 
used  without  accident  only  by  the  use  of 
extreme  care,  while  a  perfectly  safe  road- 
bed lies  beside  it,  is  so  negligent  that  he 
cannot  hold  the  municipality  liable  in  case 
he  is  injured  by  a  defect  in  the  walk.  Gib- 
Bon  V.  Denison,  38:  644,  133  N.  W.  712,  153 
Iowa,  320. 

366.  One  walking  on  a  narrow  cinder  path 
at  the  side  of  a  city  street  in  the  dark, 
knowing  that  stakes  were  driven  between 
the  path  and  the  roadway  to  keep  vehicles 
oflF  the  path,  cannot  hold  the  city  liable  for 
injury  caused  by  tripping  over  a  stake,  be- 
Digest   1-52  I<.R.A.(N.S.) 


cause  he  momentarily  forgot  its  presence, 
or  failed  to  pay  attention  to  what  he  wa» 
doing,  with  nothing  to  distract  his  atten- 
tion from  it.  Knoxville  v.  Cain,  48:  628, 
159  S.  W.  1084,  128  Tenn.  250. 

( Annotated ) 

367.  That  a  pedestrian  knowing  of  the  de- 
fective and  decayed  condition  of  a  box 
drain  which  runs  under  the  sidewalk  at- 
tempts to  pass  over  it  is  not  incompatible 
with  his  being  found  to  have  exercised  the 
care  which  a  reasonably  prudent  person 
would  have  exercised  in  passing  along  the 
walk.  City  Council  of  Montgomery  v.  Com- 
er, 21:  951,  46  So.  761,  155  Ala.  422. 

368.  A  pedestrian  is  negligent,  as  matter 
of  law,  who,  upon  a  clear  day,  with  notliing 
to  obstruct  her  vision,  stumbles  over  a 
place  in  the  sidewalk  where  one  paving  stone 
is  raised  4  inches  above  the  adjoining  one, 
which  fact  she  is  well  acquainted  with. 
Kennedy  v.  Philadelphia,  17:  194,  69  Atl. 
748,  22U  Pa.  273.  (Annotated) 
Effect  of  drunkenness. 

369.  Although  a  municipal  corporation  is 
not  relieved  from  liability  for  injury  result- 
ing from  a  defective  street  by  the  mere  fact 
that  the  injured  person  was  drunk  at  the 
time  of  the  accident,  yet  he  cannot  recover 
for  his  injury  if  it  was  due  to  the  fact  that 
his  condition  was  such  that  it  prevented  hira 
from  using  the  care  to  protect  himself  from 
harm  that  an  ordinarily  prudent  person 
would  have  exercised  under  the  same  cir- 
cumstances if  sober.  Covington  v.  Lee, 
2:  481,  89  S.  W.  493,  28  Ky.  L.  Rep.  492. 

(Annotated) 
Defective   eyesight. 

370.  In  determining  whether  or  not  one 
injured  by  an  obstruction  in  a  highway  was 
in  the  exercise  of  ordinary  care,  due  con- 
sideration should  be  given  to  the  fact  that 
his  sight  was  defective,  so  that  common 
prudence  would  require  more  care  and  keen- 
er watchfulness  in  walking  about  the  streets 
than  is  required  of  a  person  of  good  sight. 
Keith  V.  Worcester  &  B.  Valley  Street  R.  Co, 
14:  648,  82  N.  E.  680,   196  Mass.  478. 

(Annotated) 

371.  A  pedestrian  whose  eyesight  is  poor 
and  who  is  walking  along  a  sidewalk  carry- 
ing a  basket  on  his  head  has  a  right  to  as- 
sume, within  reasonable  limits,  tliat,  if  the 
street  has  been  made  unsafe  by  reason  of  an 
excavation,  those  who  made  it  will  warn 
him  of  the  fact  or  protect  him  from  danger. 
Rock  V.  American  Constr.  Co.  14:  653,  45 
So.  741,  120  La.  831. 

Fast  driving. 

372.  One  who  drives  his  automobile  on  a 
dark  rainy  night  over  a  straight  stretch  of 
strange  country  road,  at  such  speed  that 
he  is  unable  to  stop  within  a  distance  that 
he  may  clearly  see  an  obstacle  in  the  path, 
is  negligent.  Lauson  v.  Fond  du  Lac,  25:  40, 
123  N.  W.  629,  141  Wis.  57. 

373.  It  is  negligence  on  the  part  of  a 
driver  of  an  automobile  to  attempt  to  run 
the  machine  over  a  strange  road  on  a  dark 
night,  without  light  sufficient  to  enable  him 
to   see   obstacles   ahead   of  him   in  time   to 


HIGHWAYS,  IV.  d,  1. 


1411 


avoid  them.    Lauson  v.  Fond  du  Lac,  25:  40, 
123  N.  W.  629,  141  Wis.  57.       (Annotated) 

d.  Notice. 

1.  Of  defects. 

(See  also   same   heading  in  Digest  L.R.A. 
1-10.) 

Effect  of  notice  on  contributory  negligence, 

see  supra,  355-368. 
See  also  supra,  188. 

374.  Complaint  to  a  city  official  of  the 
condition  of  a  walk  does  not  charge  the 
city  with  notice  of  a  condition  to  which  the 
complaint  did  not  relate.  Beirness  v.  Mis- 
souri Valley,  51:218,  144  N.  W.  628,  162 
Iowa,  720. 

375.  Notice  to  the  town  clerk  of  a  defect 
in  a  highway  is  not  sufficient  to  charge  the 
township  with  liability  for  an  accident  be- 
cause of  it,  if  the  responsibility  for  the 
condition  of  the  highway  is  by  statute 
placed  upon  the  highway  commissioners. 
Flansburg  v.  Elbridge,  41 :  546,  98  N.  E.  750, 
205  N.  Y.  423. 

Necessity  of. 

Prejudicial   error   in   instruction   as  to,   see 

Appeal  and  Erbok,  1341. 
Of  defect  in  electric  wiring,  see  Electricity, 

51. 

376.  The  legislature  may  make  the  giving 
of  written  notice  to  the  municipal  author- 
ities of  the  defective  condition  of  the  street 
prior  to  the  happening  of  an  accident  a  con- 
dition precedent  to  holding  the  municipal- 
ity liable  for  injuries  caused  by  such  de- 
fect. MacMullen  v.  Middletown,  11:  391,  79 
N.  E.  863,   187  N.  Y.  37.  (Annotated) 

377.  The  legislature  may  legally  provide 
that  ten  days'  written  notice  to  the  city, 
prior  to  the  accident,  of  the  existence  of  a 
defect  in  a  street  or  sidewalk,  shall  be  a 
condition  precedent  to  liability  for  damages 
•caused  thereby  to  individuals.  Shigley  v. 
Waseca,  19:  689,  118  N.  W.  259,  106  Minn. 
94. 

378.  A  statute  providing  that  cities  shall 
be  absolutely  exempt  from  liability  for  in- 
juries caused  by  defects  in  their  public 
ways  unless  actual  notice  in  writing  of  the 
defect  shall  have  been  filed  with  the  city 
clerk  at  least  five  days  before  the  occur- 
rence of  the  injury  complained  of  does  not 
apply  to  defects  caused  by  the  city  itself 
in  negligently  constructing  a  sewer  in  one 
of  its  streets.  Updike  v.  Omaha,  30:  589, 
127  N.  W.  229,  87  Neb.  228. 

379.  Where  a  sidewalk  is  rendered  tem- 
porarily dangerous  by  the  positive,  negli- 
gent act  of  a  city  of  the  first  class,  and  a 
person  in  passing  over  it,  immediately  or 
within  less  than  five  days  thereafter,  and 
in  the  absence  of  contributory  negligence, 
receives  a  personal  injury,  a  statutory  pro- 
vision requiring  five  days'  notice  of  the 
dangerous  condition  of  the  walk  to  be  given 
the  city  before  the  accident  is  inapplicable; 
and  the  city  is  liable  for  damages  sustained 
Digest  1-52  L.R.A.(N.S.) 


by  the  person  injured.     Tewksbury  v.  Lin- 
cohi,  23:  282,  121  N.  W\  994,  84  Neb.  571. 

(Annotated) 

380.  Although  a  municipal  corporation 
has  no  actual  notice  of  the  danger  of  a 
sign  suspended  above  the  sidewalk,  yet  if 
it  failed  to  use  ordinary  diligence  in  de- 
termining this  danger,  it  is  liable  for  in- 
juries suffered  by  a  pedestrian  through  the 
fall  of  the  sign.  Purcell  v.  Stubblefield,  51: 
1077,  139  Pac.  290,  41   Okla.  562. 

(Annotated) 

381.  To  hold  a  municipal  corporation  lia- 
ble for  injury  caused  by  a  pile  of  lumber 
stored  in  the  street,  it  must  have  had  notice 
of  its  existence.  Dougherty  v,  St.  Louis, 
46:  330,  158  S.  W.  326,  251  Mo.  514. 

382.  A  city  is  not  liable  for  injuries  to  a 
person  on  a  sidewalk  by  the  fall  of  a  con- 
ductor pipe  from  a  building  abutting  on 
the  walk,  where  there  is  nothing  to  show 
that  it  had  notice  of  the  dangerous  condi- 
tion of  the  pipe.  Mitchell  v.  Brady,  13:  751, 
99  S.  W.  266,  124  Ky.  411. 

383.  A  municipal  corporation  is  not  liable 
for  injury  to  a  pedestrian  through  the  col- 
lapse, under  his  weight,  of  a  flagstone  form- 
ing part  of  the  covering  of  a  culvert  across 
a  street,  which  is  found  to  have  been 
cracked,  if  it  had  no  notice  of  the  defect 
and  could  not,  by  the  exercise  of  reasonable 
care,  have  known  of  it  in  time  to  remedy  it 
before  the  injury.  Corbin  v.  Benton,  43: 
591,  152  S.  W.  241,  151  Ky.  483. 

384.  An  owner  of  property  who  visits  it 
monthly  for  twenty  years  to  collect  rent 
is  liable  for  injury  to  a  pedestrian  through 
the  giving  way  of  a  grating  in  the  side- 
walk, which  had  been  defective  for  several 
years,  whether  he  actually  saw  the  defec- 
tive condition  or  not,  since  it  was  his  duty 
to  know  its  condition.  McLaughlin  v. 
Kelly,  50:  305,  79  Atl.  552,  230  Pa.  251. 

(Annotated) 

385.  Actual  notice  to  the  property  owner 
of  a  defect  in  a  conductor  pipe  which  causes 
ice  to  form  and  fall  onto  the  sidewalk  below 
is  not  necessary  to  render  him  liable  to  a 
passer-by  injured  by  a  fall  of  ice,  although 
the  building  is  in  possession  of  tenants,  if 
he  retains  control  of  the  property.  Brewer 
V.  Farnam,  50:  312,  94  N.  E.  695,"^  208  Mass. 
448. 

Implied. 

Question  whether  defect  had  existed  for  such 
a  length  of  time  as  to  charge  munici- 
pality with  notice,  see  Trial,  211. 

386.  The  presence  for  three  and  a  half 
months  of  a  %-inch  iron  "goose  neck"  ex- 
tending but  a  few  inches  above  a  sidewalk 
near  the  curb  is  not  sufficient  to  charge  a 
city  with  notice  of  its  existence  as  a  matter 
of  law,  the  obstruction  not  being  of  such  a 
character  as  necessarily  to  attract  atten- 
tion. Diamond  Rubber  Co.  v.  Harryman, 
15:  775,  92  Pac.  922,  41   Colo.  415. 

387.  The  accumulation  of  ice  and  snow 
on  a  walk  during  the  whole  of  a  winter  is 
sufficient  notice  to  the  nnmicipality  of  the 
condition.  Jackson  v.  Grand  Forks,  45:  75, 
140  N.  W.  718,  24  N.  D.  601. 

388.  Where,  in  an   action   against  a  mu« 


-'1412 


HIGHWAYS,  IV.  d,  2. 


Bicipality  for  injuries  from  a  fall  on  an 
icy  sidewalk  on  Wednesday  morning,  it  is 
shown  that,  on  the  preceding  Sunday  and 
Monday,  there  had  been  a  fall  of  snow,  and 
that  between  Sunday  and  Tuesday  evening 
there  had  been  a  slight  thaw,  and  on  Tues- 
day night  an  additional  snowfall  of  about 
one-half  inch,  there  is  nothing  to  warrant 
a  jury  in  the  conclusion  that  a  small  spot 
of  ice  covered  with  snow  on  the  walk  had 
existed  for  such  time  as  would  charge  the 
city  with  notice  of  it.  Beirness  v.  Missouri 
Valley,  51:218,  144  N.  W.  628,  162  Iowa, 
720. 

388a.  That  a  grating  over  a  hole  in  a  side- 
walk has  been  supported  by  the  same  wood- 
en frame  for  twenty  years,  to  the  knowledge 
of  the  owner  of  the  abutting  property,  is 
sufficient  to  charge  him  with  notice  that 
inspection  might  show  that  the  support 
should  be  replaced.  McLaughlin  v.  Keily, 
50:  305,  79  Atl.  552,  230  Pa.  251. 

389.  A  property  owner  may  be  charged 
with  notice  of  a  defective  condition  of  the 
supports  of  a  grating  in  the  adjoining 
sidewalk  from  evidence  that  they  had  been 
in  a  defective  condition  for  ten  or  fifteen 
years.  McLaughlin  v.  Kelly,  50:  305,  79 
Atl.  552,  230  Pa.  251. 

2.  Of  injuries. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Of  injury  on  defective  bridge,  see  Bridges, 

Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  166. 

See  also  supra,  257,  297;  Municipal  Coepo- 
RATIONS,  468-470. 

390.  A  charter  provision  prohibiting  the 
enforcement  of  a  right  to  compensation  for 
an  injury  sustained  upon  a  defective  side- 
walk, except  by  presentation  of  a  claim  to 
the  city  council,  and,  in  case  of  adverse  ac- 
tion, an  appeal  to  the  circuit  court,  regulates 
the  remedy,  and  is  permissible  under  the 
rule  that  the  legislature  may  take  away  the 
ordinary  remedy  for  the  enforcement  of  a 
right,  so  long  as  it  affords  another  which  is 
adequate.  Hay  v.  Baraboo,  3:  84,  105  N. 
,W.  654,  127  Wis.  1. 

,  391.  A  charter  provision  that  no  action 
shall  be  maintained  cgainst  the  city  to  en- 
force any  tortious  liability,  unless  a  notice 
in  writing  signed  by  the  person  injured  or 
claiming  to  be  injured,  of  the  wrong,  and 
the  circumstancea  thereof,  and  the  amount 
of  damages  claimed,  shall  be  presented  to  the 
council  within  ninety  days  after  the  occur- 
rence creating  the  damages, — bears  on  the 
remedy,  and  is  a  statute  of  limitations.  Hay 
V.  Baraboo,  3:  84,  105  N.  W.  654,  127  Wis. 
1. 

392.  A  statutory  provision  requiring  no- 
tice to  the  municipality  before  it  shall  be 
liable  for  injuries  alleged  to  have  been  suf- 
fered "by  reason  of  any  defect  ia  any  side- 
Digest  1-52  L.R.A.(N.S.) 


walk"  applies  in  case  of  injury  by  a  walk 
defective  because  of  an  uneven  accumulation 
of  snow  and  ice  thereon.  Tonn  v.  Helena, 
36:  1136,  111  Pac.  715,  42  Mont.  127. 

393.  Knowledge  by  municipal  authorities 
of  an  unsafe  condition  of  a  sidewalk  because 
of  which  injury  occurs  to  a  pedestrian  is 
not  sufficient  to  comply  with  a  statute  re- 
quiring notice  of  tlie  injury  to  be  given  to 
the  authorities,  since  one  object  of  the  no- 
tice is  to  give  the  municipality  an  oppor- 
tunity to  settle  the  claim  without  litiga- 
tion. Tonn  V.  Helena,  36:  1 136,  111  Pac. 
715,  42  Mont.  127. 

394.  That  one  injured  by  a  defect  in  a 
city  street  is  rendered  mentally  and  physi- 
cally incompetent  by  the  injury  does  not 
excuse  his  failure  to  give  the  notice  to  the 
city  which  the  statute  makes  a  prerequisite 
to  the  maintenance  of  an  action  against 
it.  Touhey  v.  Decatur,  32:  350,  93  N.  E. 
540,  176  Ind.  98.  (Annotated) 

395.  Municipal  authorities  cannot  waive 
the  notice  required  by  statute  to  be  given 
in  case  of  injury  on  a  city  street  before  ac- 
tion can  be  brought  against  the  city  to  hold 
it  liable  therefor.  Touhey  v.  Decatur, 
32:  350,  93  N.  E.  540,  175  Ind.  98. 

396.  No  constitutional  right  of  one  in- 
jured by  a  defect  in  a  city  street  is  impaired 
by  a  statutory  requirement  that  before  he 
can  maintain  an  action  against  the  muni- 
cipality for  the  injury,  he  must  have  given 
it  notice  of  the  time,  place,  cause,  and  na- 
ture of  the  injury.  Touhey  v.  Decatur, 
32:  350,  93  N.  E.  540,  175  Ind.  98. 

397.  The  notice  required  by  Wis.  Rev. 
Stat.  1898,  §  1339,  to  be  given  the  munici- 
pality in  case  of  injury  to  a  person  by  rea- 
son of  want  of  repair  of  sidewalk,  is  a  re- 
quisite to  the  creation  of  a  right  to  compen- 
sation for  injury.  Hav  v.  IBaraboo,  3:  84, 
105  N.  W.  654,  127  Wis.  1. 

398.  Damages  recoverable  from  a  city  are 
limited  to  those  resulting  from  the  injury 
specified  in  claimant's  notice,  under  a  stat- 
ute requiring  notice  of  injury  to  be  given  to 
the  city  as  a  condition  precedent  to  recov- 
ery. Diamond  Rubber  Co.  v.  Harryman,  15: 
775,  92  Pac.  922,  41  Colo.  415. 
Sufficiency    of. 

See  also  Evidence,  2442. 

399.  A  statement  in  a  notice  of  claim  for 
an  injury  alleged  to  have  been  due  to  the 
negligence  of  a  municipal  corporation,  that 
it  was  caused  by  falling  through  a  defective 
sidewalk,  the  location  of  which  is  stated,  is 
a  sufficient  compliance  with  a  requirement 
that  the  notice  must  describe  the  defect  that 
caused  the  injury.  Hase  v.  Seattle,  20:  938, 
98  Pac.  370,  51  Wash.  174. 

400.  Notice  to  city  officers  of  an  accident 
on  its  streets  through  reading  a  newspaper 
description  of  it  does  not  comply  with  a 
statutory  requirement  that  before  action 
can  be  brought  against  the  city  to  hold  it 
liable  for  the  injuries  written  notice  must 
be  given  to  it  of  the  time,  place,  cause,  and 
nature  of  the  injury.  Touhey  v.  Decatur, 
32:  350,  93  N.  E.  540,  175  Ind.  98. 


HIGHWAYS,  V.  a,  1,  2. 


1413 


V.    Biycontitiitance;    alteration;    aban- 
donment. 

a.  Discontinuance, 

1.  In  general. 

(See  also   same   heading   in  Digest   L.R.A. 
1-70.)  .,ix.rt 

Review  by  court  of  question  of  necessity  of 

closing,  see  Courts,  107. 
Inquiry  by  courts  into  motives  of  municipal 

authority  in  closing  alley,  see  Courts, 

142. 
Right  to  compensation  for  injury  resulting 

from  obstruction  of  street,  see  Emixent 

Domain,  284-286. 
Injunction    against,    see    Injunction,    375, 

376,  415. 
Sufficiency    of   title   of    ordinance   vacating 

street,    see   Municipal    Cobporations, 

66. 
Of  park  or  square,  see  Parks  and  Squares, 

1,  4. 
Necessary  parties  defendant  in  proceeding  to 

close  alley,  see  Parties,  188. 
Submitting  to  jury  question  of  necessity  of 

closing,  see  Trial,  94. 
See  also  supra,  239. 

401.  A  municipal  corporation  is  not  pre- 
cluded from  closing  an  alley  because  it  was 
conveyed  to  and  accepted  by  it  under  a  deed 
providing  that  it  shall  always  remain  free 
and  open  as  a  public  alley.  Henderson  v. 
Lexington,  22:  20,  111  S.  W.  318,  132  Ky. 
390. 

402.  Requiring  tracks  of  a  railroad  com- 
pany which  are  properly  in  a  public  street 
to  be  elevated  on  a  solid  embankment  for 
public  protection  and  welfare,  and  vacating 
the  portion  of  the  street  covered  by  the 
embankment,  do  not  violate  the  rule  that 
municipal  corporations  have  no  authority 
to  vacate  or  obstruct  streets  for  the  benefit 
of  private  individuals  and  corporations, 
and  therefore  do  not  cause  a  reversion  of 
the  street  to  those  who  dedicated  it  to 
public  use  or  to  abutting  owners,  or  entitle 
them  to  enjoin  the  railroad  company  from 
trespassing  on  the  land,  although  the  em- 
banjcment  will  exclude  the  public  from  all 
use  of  the  street.  Weage  v.  Chicago  &  W.  I. 
R.  Co.  n:  589,  81  N.  E.  424,  227  111.  421. 

( Annotated ) 

403.  Where  a  highway  containing  a  plain 
well-beaten  track  is  discontinued,  it  is  the 
duty  of  the  public  authority  responsible 
therefor,  to  give  such  notice  or  warning,  or 
erect  such  barrier,  as  will  prevent  its  use 
by  travelers  by  night  as  well  as  by  day;  and 
in  the  absence  of  such  notice  travelers  have 
the  right  to  presume  that  such  highway  has 
not  been  discontinued  or  obstructed.  Dan- 
iels V.  County  Court,  37:  11 58,  72  S.  E.  782, 
69  W.  Va.  676. 

For  benefit  of  private  person. 

404.  That  a  railroad  company  will  be 
benefited  by  the  closing  of  a  public  alley, 
and  defrays  part  of  the  expense  incident 
thereto,  will  not  prevent  the  municipality 
Digest   1-52  L.R.A.(N.S.) 


from  closing  it  if  the  public  will  also  be 
benefited  thereby.  Henderson  v.  Lexington, 
22:  20,  111  S.  W.  318,  132  Ky.  390. 

405.  A  street  is  not  destroyed  by  the  con- 
struction of  a  wharf  thereon  by  the  abut- 
ting owner.  Bufi'alo  v.  Delaware,  L.  &  W. 
R.  Co.  16:  506,  82  N.  E.  513,  190  N.  Y.  84. 

(Annotated) 

2.  Rights  of  individuals. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Method  of  submitting  question  as  to  dam- 
ages to  jury,  see  Appeal  and  Error, 
647. 

Validity  of  statute  authorizing  closing,  see 
Constitutional  Law,  596. 

Measure  of  damages  for,  see  Damages,  509, 
562-564,  576. 

Discontinuance  as  a  taking  of  property,  see 
Eminent  Domain,  198-201. 

Right  to  compensation  on,  see  Eminent  Do- 
main, 229, 

Necessity  of  payment  of  compensation  for 
damages  before  vacating,  see  EMiNEa^T 
Domain,  255. 

Injunction  to  protect,  see  Injunction,  375, 
376,  415. 

406.  A  village  and  railroad  company 
which,  in  order  to  abolish  a  grade  crossing, 
construct  a  subway,  vacating  the  surface 
crossing,  thereby  diverting  travel  from  the 
space  between  the  crossing  and  the  en- 
trance to  the  subway,  and  depreciating  the 
value  of  the  abutting  business  property,  are 
liable  for  the  injuries  thereby  caused  the 
owner.  Schimmelmann  v.  Lake  Shore  & 
M.  S.  R.  Co.  36:  1164,  94  N.  E.  840,  83  Ohio 
St.  356. 

407.  Owners  of  property  abutting  on  a 
highway  adjacent  to  a  railroad  track  are 
not  affected  in  a  manner  different  from  the 
public  by  a  discontinuance  of  the  street 
within  the  railroad  right  of  way,  and  the 
erection  of  a  bridge  to  carry  the  street  over 
the  tracks,  so  that,  in  order  to  cross  the 
tracks,  they  are  obliged  to  go  away  from 
them  until  they  reach  the  foot  of  the  bridge 
approach.  Hyde  v.  Fall  River,  2:  269,  75 
N.  E.  953,  189  Mass.  439.  (Annotated) 

408.  An  abutting  property  owner  is  en- 
titled to  no  damages  for  the  construction  of 
an  interurban  electric  railroad  along  a  strip 
of  land  which  was  formerly  a  street,  where 
the  municipality  had  vacated  the  street,  and 
granted  the  fee  thereof  to  the  state  and  a 
right  of  way  along  the  strip  to  the  rail- 
road company.  Tomlin  v.  Cedar  Rapids  & 
I.  R.  &  Light  Co.  22:  530,  120  N.  W.  93,  141 
Iowa,  599.  (Annotated) 
Vacating    street    in    front     of    party 

complaining. 
Construction  of  bridge  approach   in  public 
street,  see  Eminent  Domain,  201. 

409.  The  owner  of  abutting  property  is 
entitled  to  damages  for  a  change  in  a  high- 
way which  results  in  raising  a  portion  of 
its  width  to  carry  it  over  a  bridge,  leaving 
only    a    narrow    strip   terminating    at    tlie 


1414 


HIGHWAYS,  V.  b— HOLIDAYS. 


yr&t&r  in  front  of  his  property,  the  effect  of 
which  is  to  cut  off  travel  past  his  property, 
and  leave  access  to  it  only  by  a  cul-de-sac 
which  can  be  used  by  vehicles  only  when 
they  back  in  one  direction.  Park  City 
Yacht  Club  v.  Bridgeport,  39:  478,  82  Atl. 
1035,  85  Conn.  366. 
Vacating  remote  part  of  Iiigliivay. 

410.  All  land  abutting  on  that  portion  of 
a  street  which  is  not  vacated,  but  which 
is  left  a  cul-de-sac  by  vacating  another  por- 
tion of  the  street  between  it  and  the  next 
adjacent  cross  street,  suffers  a  special  in- 
jury for  which  damages  may  be  awarded 
under  a  statute  requiring  a  city  to  pay 
damages  caused  by  the  vacation  of  any 
street.  Newark  v.  Hatt  (N.  J.  Err.  &  App.) 
30:  637,   77   Atl.   47,  79  N.  J.   L.   548. 

(Annotated) 

411.  A  lot  owner  sustaining  consequen- 
tial injuries  by  reason  of  the  vacation,  by 
a  city,  of  a  portion  of  the  street  on  which 
his  property  fronts,  and  lying  between  the 
line  of  his  lots  and  the  right  of  way  of  a 
railroad  company,  may  maintain  an  action 
against  the  city  to  recover  damages,  but  is 
not  entitled  to  recover  against  the  railroad 
company,  where  it  is  not  shown  to  have 
taken  any  steps  for  the  purpose  of  devot- 
ing the  vacated  portion  of  the  street  exclu- 
sively to  its  use  and  purposes.  Vander- 
burgh V.  Minneapolis,  6:  741,  108  N.  W.  480, 
98  Minn.  329. 

ft.  Alteration. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Right  of  private  citizen  to  enjoin  threat- 
ened unlawful  narrowing  of  public 
street,  see  Nuisance,  83. 

c.  Abandonment. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Selling  lots  with  respect  to  plat  showing 
street  which  has  been  abandoned,  see 
Dedication,  34. 

By  nonnser. 

412.  A  statute  declaring  a  county  road 
vacated  if  it  remains  unopened  for  public 
use  for  seven  years  does  not  apply  to  a 
street  or  alley  within  the  limits  of  a  city. 
Wallace  v.  Cable,  42:587,  127  Pac.  6,  87  Kan. 
835. 

VI.  Highway  offlcera. 

(See  also  some  heading  in  Digest  L.R.A, 
1-10.) 

Relation  of  judiciary  to,  see  Courts,  72. 

Municipal  liability  for  acts  of  highway  offi- 
cers, see  Municipal  Corporations,  396- 
399. 

Liability  of  road  supervisors  for  diverting 
surface  water,  see  Waters,  262. 

Digest  1-52  I^R.A.(N.S.) 


HIRE  AND  PURCHASE 
AGREEMENT. 

Right  of  persons  supplying  fixtures  under, 
see  Fixtures,  25,  26. 


HIRING. 

Interpretation    of    contract    of    hiring,    see 
Contracts,  II.  d,  4. 


«M*-* 

HISTORICAL  MATTERS. 

Judicial  notice  as  to,  see  Evidence,  L  d. 

#»» 

HITCHING  POSTS. 

In  highway,  see  Highways,  15;  Limitation 
OF  Actions,  67 ;  Municipal  Corpora- 
tions, 108-110;  Nuisances,  86. 

As  nuisances,  see  Nuisances,  86,  126. 


HOGS. 

Injury  to,  during  transportation,  see  Car- 
riers, 892,  903-907. 

Permitting  summary  killing  of  hogs  run- 
ning at  large,  see  Constitutional 
Law,  526. 

Burden  of  proving  express  company's  liabil- 
ity for  death  of,  see  Evidence,  389. 

Municipal  regulations  as  to  keeping  of,  see 
Municipal  Corporations,  159-161. 

In  general,  see  Animals,  25. 


HOUSING  COMPANY. 

Controlling   oil   industry,    see   Injunction, 

446. 
Dissolution  of,  see  Juikjment,  35,  88. 


HOLDING   OVER. 


By  tenant,  see  Landlord  and  Tenant,  U.  c. 
By  officer,  see  Officers,  29-31,  87. 


HOLIDAYS. 


Effect  on  time  for  filing  bill  of  excepidons, 

see  Appeal  and  Error,  257. 
Sufficiency  of  objection  to  holding  court  OB^^i 

see  Appeal  and  Error,  297.  ?; 

Holding  of  corporate  meeting  on,  see  CoBPO-  • 

RATIONS,   173.  j, 

Trial  on,  of  one  accused  of  crime,  see  Cbimi- 
NAL  Law,  162.  • 


HOLOGRAPHIC  WILL— HOMESTEAD. 


1415 


Holding  judicial  sale  on  following  day  where 
date  appointed  falls  on  holiday,  see 
Judicial  Sale,  4. 

See  also  Sunday, 

1.  An  election  not  extending  through- 
out the  state,  but  confined  to  one  or  more  of 
its  political  subdivisions,  is  not  a  general 
election  within  La.  Acts  1904,  No.  3,  p.  5, 
enacting  that  all  general  election  days  shall 
be  legal  holidays.  State  v.  Duncan,  lo:  791, 
43  So.  283,  118  La.  702. 

2.  The  trial,  on  a  statutory  or  legal 
holiday,  of  one  accused  of  crime,  is  not  null 
if  it  takes  place  with  the  consent  or 
acquiescence  of  the  accused,  since  such  holi- 
days do  not  possess  the  sacredness  of  the 
Sabbath.  State  v.  Duncan,  10:  791,  43  So. 
283,  118  La.  702.  (Annotated) 

3.  A  judgment  entered  on  a  judicial  day 
will  not  be  declared  void  because  evi- 
dence was  taken  and  arguments  heard  with- 
out objection  on  a  day  which  had,  without 
knowledge  of  the  court,  been  proclaimed  by 
the  governor  to  be  a  holiday.  State  ex  rel. 
Walter  v.  Superior  Court,  17:  257,  94  Pae. 
•65,  49  Wash.  1. 


HOLOGRAPHIC  ^VIIiL. 

See  Wills,  II. 


HOM£. 

Homicide  in  defense  of,  see  Homicidk,  78-82. 

Use   of   public   funds   to   secure  homes   for 

wage  earners,  see  Public  Money,  9. 


♦  •» 


HOME   ECONOMICS. 

Instruction  in,  see  Schools,  I.  a. 

^-*-*- ■ 

HOME  PORT. 

For  purposes  of  taxation,  see  Taxes,  122. 

♦-•-♦ 

HOME   RULE. 

Ab  to  local  self-government,  see  Constitu- 
tional Law,  I.  f. 


HOMESTEAD. 


vf  M^' The  exemption  generally,  1—17. 
"  a.  In    general;    who    may    claim, 

1-12. 

b.  In  what  property,   12a— 15. 

c.  Estahlishment,  10,  17. 
II.  Creditors'  rights,   18—30. 

III.  Loss;  abandonment,  31—41. 
Digest  1-52  L.R.A.(N.S.) 


IV.  Alienation;  encumbrance  and 
transmission  of  exempt  prop- 
erty,   42—53. 

a.  Sale,   lease,   or  mortgage,  42— 

51. 

b.  Transmission  in  case  of  death, 

52,   53. 
V.  Allotment  and  setting  apart,  54. 

Adverse  possession  of,  by  former  owner 
after  conveyance,  see  Adverse  Posses- 
sion, 5. 

Wife's  right  of  action  for  trespass  on,  see 
Case,  4. 

Law  governing  question  of  title  given  by 
patent,  see  Confuct  of  Laws,  105. 

Curative  act  as  to,  see  Constitutional 
Law,  47. 

Effect  of  acceptance  of  option  to  purchase 
given  by  husband  to  supersede  wife's 
declaration  of  homestead,  see  Con- 
tracts, 60. 

Jurisdiction  of  county  court  to  determine 
title  to,  see  Courts,  238. 

Overflow  of  lands  of,  by  wrongful  obstruc- 
tion of  water  way,  see  Damages,  494; 
Waters,  198. 

Damages  for  condemnation  of,  see  Damages, 
553. 

Right  to  dower  in,  free  from  purchase 
money  mortgage,  see  Doweb,  37. 

Waiver  of  distributive  rights  in  wife's  other 
property  by  attempt  to  assert  home- 
stead rights  in  certain  land,  see  Elec- 
tion. 

Estoppel  to  assert  homestead  right,  see  Es- 
toppel, 39,  82. 

Estoppel  to  claim  dower  rights  in,  see  Es- 
toppel, 260. 

Estoppel  of  heirs  to  attack  sale  of,  by  an- 
cestor, see  Estoppel,  261. 

Increase  in  value  of  homestead  above  limit 
fixed  by  statute  as  assets  warranting 
further  administration  of  decedent's  es- 
tate, see  Executors  and  Administra- 
tors, 85. 

Estoppel  of  infant  to  claim  rights  in,  by 
act  of  guardian,  see  Guardian  and 
Ward,  28. 

As  community  property,  see  Husband  and 
Wife,  73,  74. 

Effect  of  dissolution  of  marriage  after  ini- 
tiation, but  before  consummation,  of 
right  under,  see  Husband  and  Wife, 
81. 

Validity  of  antenuptial  contract  cutting  ofl 
hon^estead  right  of  intended  husband, 
see  Husband  and  Wife,  123. 

Title  to  homestead  on  public  lands  before 
final  proof  is  made  as  "unconditional 
and  sole,"  see  Insurance,  209. 

Insurance  by  husband  as  sole  owner  of 
homestead  title  to  which  is  in  wife,  see 
Insurance,  210. 

Conclusiveness  of  ex  parte  order  setting 
apart  to  widow  homestead  interest  as 
against  children,  see  Judgment,  240. 

Lien  of  judgment  upon,  see  Judgment,  272. 

When  action  to  recover  interest  in,  is 
barred,  see  Limitation  of  Actions, 
255. 


1416 


.aAaX??iJ  HOMESTEAD,  I.  a. 


UOH 


Oil  and  gas  lease  by  widow  on  homestead 
land,  see  Mines,  59. 

Partition  of,  see  Pabtition,  12-15. 

Necessity  of  pleading  defense  of,  see  Plead- 
ing, 482. 

On  public  lands,  see  Public  Lands. 

Right  of  purchaser  at  illegal  tax  sale  to 
compensation  for  improvements,  see 
Taxes,  239,  240. 

Succession  tax  on,  see  Taxes,  317. 

Question  for  jury  as  to  interest  of  home- 
stead settler  in  action  for  injury  to 
property,  see  Trial,  604. 

Constructive  trust  under  deed  of,  to  wife, 
see  Trusts,   47. 

EflFect,  on  rights  of  subsequent  entryman,  of 
appropriation  of  waters  during  exist- 
ence of  prior  homestead  entry,  see  Wa- 
ters, 230. 

Not  included  in  disposal  of  all  testator's 
"eflfects,"  see  Wills,  190. 

Necessity  for  electing  between  homestead 
and  rights  under  will,  see  Wills,  354, 
357,  359. 

I.  The  exemption  generally. 

a.  In  general  f  who  may  claim. 

(See  also   same   heading  in  Digest  L.R.A 
•  1-10.) 

Presumptions  on  appeal  as  to  intent,  see 
Appeal  and  Error,  461. 

As  to  exemptions,  generally,  see  Exemp- 
tions. 

Exemption  of  homestead  purchased  with 
pension  money,  see  Exemptions,  8. 

Exemption  of,  from  mechanics'  lien,  see 
Mechanics'  Liens,  52,  111. 

1.  Organic  and  statutory  provisions  re- 
lating to  the  homestead  and  personal  prop- 
erty exemptions  should  be  liberally  con- 
strued in  the  interest  of  the  family,  but 
the  law  should  not  be  so  applied  as  to  make 
it  an  instrument  of  fraud  or  imposition 
upon  creditors.  Jetton  Lumber  Co.  v.  Hall, 
51:  1 121,  64  So.  440,  67   Fla.   61. 

2.  Where  the  statute  creating  a  home- 
stead exemption  is  so  liberally  construed 
as  not  to  require  present  occupancy  of  the 
premises  in  order  that  they  may  become  the 
homestead  of  the  owner,  the  creation  or  ex- 
istence of  the  homestead  depends  largely 
upon  the  intent  of  the  parties.  Jensen  v. 
Griffin,  50:  1128,  144  N.  W.  119,  32  S.  D. 
613. 

3.  The  fact  that  a  husband  and  wife 
sell  their  homestead,  which  would  be  cov- 
ered by  the  lien  of  a  judgment  except  for 
being  exempt,  and  receive  and  use  the  pur- 
chase money,  does  not  prevent  their  after- 
wards acquiring  with  other  funds  another 
homestead,  which  shall  be  exempt  from 
sale  to  satisfy  such  judgment.  McConnell 
V.  Wolcott,  3:  122,  78  Pac.  848,  70  Kan.  375. 

4.  An  insolvent  debtor  may  successfully 
assert  a  claim  of  exemption  as  to  a  home- 
stead purchased  with  the  proceeds  of  non- 
exempt  property,  where  there  are  no  pe- 
culiar equities  in  favor  of  existing  creditors. 
Digest  1-52  L.R.A.(N.S.) 


even  although  such  purchase  is  made  for 
the  very  purpose  of  acquiring  property  that 
should  constitute  a  homestead,  and  as  such 
be  beyond  the  reach  of  creditors.  McConnell 
V.  Wolcott,  3:  122,  78  Pac.  848,  70  Kan.  375. 

5.  Where  the  husband,  without  cause, 
abandons  his  family,  who  were  residing 
upon  the  homestead,  he  may  not  maintain 
an  action  of  ejectment  to  dispossess  his  wife 
and  family  of  said  homestead  or  any  part 
thereof.  Goocli  v.  Gooch,  47:  480,  133  Pac. 
242,  38  Okla.  300. 

6.  The  homestead  of  a  family  may  be 
taken  in  property  of  either  the  husband  or 
wife,  and  if  their  home  is  owned  by  them 
equally  as  tenants  in  common,  and  is  of  the 
value  of  the  homestead  exemption,  neither 
can  claim  other  real  estate  exempt.  Valpa- 
raiso State  Bank  v.  Schwartz,  42:1213,  138 
N.  W.  757,  92  Neb.  575. 

7.  The  childless  widow  of  one  who  died 
seised  in  fee  of  lands  occupied  by  them  as 
a  homestead  may,  under  a  statute  provid- 
ing that,  "upon  the  death  of  either  husband 
or  wife,  the  survivor  may  continue  to  pos- 
sess and  occupy  the  whole  homestead  until 
it  is  otherwise  disposed  laf  according  to 
law,"  as  against  the  husband's  heirs,  oc- 
cupy and  possess  the  whole  thereof  as  long 
as  she  preserves  its  homestead  character  by 
maintaining  a  home  thereon.  Holmes  v. 
Holmes,  30:  920,  111  Pac.  220,  27  Okla.  140. 

(Annotated) 

8.  No  homestead  exists  in  land  owned 
by  an  alien  whose  family  resides  in  a  for- 
eign country,  so  as  to  render  void  a  mort- 
gage given  by  him  upon  the  land  without 
his  wife  joining,  as  required  by  statute  for 
the  mortgage  of  a  homestead,  although  he 
has  declared  his  intention  of  bringing  his 
family  and  residing  upon  the  land,  and  has 
tendered  final  proof  of  his  declaration  of 
intention  to  become  a  citizen,  but  has  never 
taken  out  final  citizenship  papers,  and  has 
delayed  for  four  years  to  take  any  steps 
to  bring  his  family,  and  has  not  resided 
upon  the  land  after  the  required  prelimin- 
ary residence.  Tromsdahl  v.  Nass,  52:  746, 
146    N.    W.    719,   27    N.    D.    441. 

(Annotated) 
Existence  of  family. 

9.  A  mother  and  an  adult  son,  who  is 
incapable  of  caring  for  himself  and  receives 
support  from  her,  merely  doing  chores  about 
the  house,  constitute  a  family  capable  of 
claiming  a  homestead.  Sheehy  v.  Scott,  4: 
365,  104  N.  W.  1139,  128  Iowa,  551. 

(Annotated) 
'Who  is  head  ttt  family. 

10.  Under  the  Constitution  and  laws  of 
North  Dakota,  the  husband,  as  the  head  of 
the  family,  is  entitled  to  claim  the  home- 
stead as  exempt  from  execution  sale,  al- 
though the  fee  of  the  property  is  vested  in 
his  wife.  Bremseth  v.  Olson,  13:  170,  112 
N.  W.  1056,  16  N.  D.  242.  (Annotated) 

11.  A  woman  who  lives  upon  a  farm 
with  her  mature  sons,  one  of  whom  is  mar- 
ried and  carries  on  the  place,  cannot  be 
held  to  be  the  head  of  the  family,  so  as  to 
be   entitled   to   claim   a   homestead   therein. 


HOMESTEAD,  I.  b— II. 


1417 


Somers  v.  Somers,  36:  1024,  131  N.  W.  1091, 
27  S.  D.  500. 

12.  A  woman  whose  husband  has  desert- 
ed her  and  gone  into  another  state,  leaving 
her  residing  in  the  state  of  their  former 
residence,  with  children  depending  upon  her, 
is  the  head  of  a  family  so  as  to  entitle  her 
to  a  homestead  exemption  in  personal  prop- 
erty left  by  her  husband,  under  a  constitu- 
tional provision  giving  a  homestead  exemp- 
tion in  certain  property  "owned  by  the  laead 
of  a  family"  residing  in  the  state.  Jetton 
Lumber  Co.  v.  Hall,  51:  1121,  64  So.  440,  67 
Fla.  61.  (Annotated) 

b.  In  what  property. 

(See  also   same   heading  in  Digest  L.R.A. 

1-70.) 

12a.  By  §  1,  art.  12,  of  the  Oklahoma 
Constitution,  :  id  §  3346,  Comp.  Laws  1909, 
the  homestead  of  a  family  may  consist  of 
more  than  one  tract  of  land,  and  may  be 
owned  by  either  husband  or  wife,  or  by 
both  jointly,  or  one  tract  may  be  owned  by 
one  and  the  other  tract  owned  by  the  other, 
so  long  as  the  aggregate  number  of  acres 
occupied  as  a  home  does  not  exceed  160 
acres.  Gooch  v.  Gooch,  47:  480,  133  Pac. 
242,  38  Okla.  300. 

13.  A  homestead  exemption  does  not  ex- 
tend to  a  second  dwelling  house  erected  on 
homestead  property, — especially  where  the 
statute  provides  that  it  must  not  embrace 
more  than  one  dwelling  house  or  any  other 
buildings  except  such  as  are  properly  ap- 
purtenant to  the  homestead  as  such.  Jen- 
sen V.  Griffin,  50:  1128,  144  N.  W.  119,  32 
S.  D.  613. 

14.  A  building  whose  value  is  within  the 
homestead  limits,  which  is  owned  by  a  mar- 
ried woman  and  occupied  by  herself  and 
husband  as  a  home,  may,  although  it  is 
used  as  a  hotel  or  lodging  and  boarding 
house  to  aid  in  the  maintenance  of  the 
home,  and  the  owner  does  not  continuously 
occupy  the  same  rooms,  be  claimed  by  her 
as  a  homestead.  McKay  v.  Gesford,  41 :  303, 
124  Pac.  1016,  163  Cal.  243.  (Annotated) 
Crops. 

15.  The  crops  grown  on  a  homestead  are 
exempt  from  execution  wlieic  the  constitu- 
tional provision  for  homestead  exemptions 
declares  that  it  shall  be  liberally  construed. 
Neblett  v.  Shackleton,  32:  577,  69  S.  E.  946, 
111  Va.  707.  (Annotated) 

• 
c.  Estahlishment. 

(See   also   same   heading  in  Digest  L.R.A. 
1-10.) 

16.  That  the  north  80  acres  of  a  farm 
consisting  of  157  acres  constitutes  the  home- 
stead of  the  owner  thereof  is  shown,  as  mat- 
ter of  law,  by  proof  that  his  dwelling  house, 
which  he  and  his  family  had  occupied  as 
their  home  for  eight  years,  stood  upon  such 
80  acres,  that  the  land  occupied  by  it  and 
the  contiguous  land  constituting  the  80  acres 
was  in  a  compact  and  convenient  form,  that 
Digest   1-52  Ii.R.A.(N.S.) 


any  other  selection  would  have  resulted 
in  an  irregular  tract,  and  that  he  claimed 
such  portion  as  his  homestead,  although  it 
does  not  appear  that  any  notice  of  such  claim 
had  been  tiled.  Delisha  v.  Minneapolis,  St, 
P.  R.  &  D.  Electric  Traction  Co.  27:  963,  126 
N.  W.  276,  110  Minn.  518. 

17.  Whether  or  not  a  remainderman 
whose  estate  has  vested  can  claim  a  home- 
stead in  such  remainder  estate,  so  as  to 
preclude  the  attaching  of  a  judgment  lien 
thereon,  will  not  be  determined  upon  affida- 
vits filed  in  an  application  for  the  release 
of  such  judgment  on  account  of  the  dis- 
charge in  bankruptcy  of  the  judgment  debt- 
or, as  provided  by  a  state  statute.  John 
Leslie  Paper  Co.  v.  Wheeler,  42:  292,  137  N. 
W.  412,  23  N.  D.  477. 

II.  Creditors'  rights. 

(See   also   same   heading   in  Digest  L.R.A. 

1-10.) 

Withdrawing  funds  from  reach  of  creditors 
by  investing  in,  see  Execution,  13. 

Exemption  of  homestead  purchased  with 
pension  money,  see  Exemptions,  8. 

See  also  infra,  51. 

18.  Mechanics'  liens  upon  a  new  house 
built  upon  a  lot  comprised  in  a  homestead 
cannot  be  affected  by  an  abandonment  of 
the  old  house  as  a  dwelling  after  the  ma- 
terial has  been  furnished  and  the  work  done 
upon  which  such  liens  are  based.  Jensen 
V.  Griffin,  50:  1128,  144  N.  W.  119,  32  S.  D. 
613. 

After  death  of  homesteader. 

19.  A  general  direction  by  a  testator 
in  his  will  to  pay  all  his  just  debts  out  of 
his  estate,  followed  by  a  devise  ef  the  resi- 
due, is  not  sufficient  to  indicate  an  intention 
that  his  homestead  should  be  liable  to  the 
payment  of  his  debts.  Larson  v.  Curran, 
44:  1177,  140  N.  W.  337,  121  Minn.  104. 

(Annotated) 

20.  Where  a  decedent,  leaving  no  sur- 
viving spouse,  child,  or  issue  of  deceased 
child,  disposes  of  his  homestead  by  his  last 
will,  the  devisee  takes  it  free  from  claims 
of  creditors  of  the  decedent,  unless  the  tes- 
tator clearly  indicates  an  intention  that 
the  homestead  shall  be  liable  to  the  pay- 
ment of  his  debts.  Larson  v.  Curran,  44: 
1 177,  140  N.  W.  337,  121  Minn.  104. 

21.  That  the  homestead  of  a  decedent 
is  not,  after  his  death,  occupied  as  a  home- 
stead by  a  member  of  his  family  entitled 
to  occupy  it  as  such,  does  not  aflFect  its 
character  as  being  exempt  from  liability 
for  the  decedent's  debts.  Larson  v.  Cur- 
ran, 44:  1 1 77,  140  N.  W.  337,  121  Minn.  104. 

22.  A  homestead  occupied  by  a  wife  alone, 
after  the  death  of  her  husband,  is  exempt 
as  against  her  own  creditors,  as  well  as 
against  the  creditors  of  her  husband's  es- 
tate, irrespective  of  the  time  the  indebtedness 
was  incurred,  and  without  regard  to  which 
spouse  held  the  legal  title  to  the  property 
during  their  married  life.     Weaver  v.  First 


1418 


HOMESTEAD,  III. 


Nat.  Bank  of  Chicago,  i6:  no,  94  Pac.  273, 
76  Kan.  540. 

23.  The  heirs  do  not  take  the  homestead 
of  their  ancestor  free  from  his  debts  con- 
tracted prior  to  its  acquisition,  under  a 
statute  providing  that  the  homestead  of 
every  pensioner,  whether  the  head  of  a  fam- 
ily or  not,  purchased  with  pension  money, 
shall  be  exempt,  and  such  exemption  shall 
apply  to  debts  contracted  prior  to  its  pur- 
chase, where,  under  the  statutes,  such  ex- 
emption would  not  apply  to  homesteads  in 
general.  Beatty  v.  Wardell,  4:  544,  105  N. 
W.  357,  130  Iowa,  651.  (Annotated) 
Antecedent  debts. 

24.  Under  the  homestead  law  of  Con- 
gress, providing  that  no  land  acquired  un- 
der it  shall  be  liable  to  be  taken  in  satis- 
faction of  a  debt  contracted  prior  to  the 
issuing  of  a  patent  therefor,  land  is  not 
subject  to  a  judgment  upon  a  note  exe- 
cuted between  the  making  of  final  proof 
and  the  issuance  of  the  receiver's  certifi- 
cate thereon  and  issuance  of  the  patent. 
Sprinkle  v.  West,  34:  404,  114  Pac.  430,  62 
Wash.  587.  (Annotated) 

25.  Selection  of  a  new  house  as  a  home- 
stead will  not  affect  mechanics'  liens  for 
labor  and  material  contracted  for  before  the 
selection  is  made,  and  furnished  without 
notice  of  such  selection.  Jensen  v.  Griffin, 
50:  1128,  144  N.  W.  119,  32  S.  D.  613. 

( Annotated ) 

26.  A  mechanics'  lien  on  a  dwelling 
erected  upon  land  forming  part  of  a  home- 
stead cannot  be  defeated  by  the  selection 
of  such  dwelling  as  a  homestead,  if  the 
homestead  claimant  led  the  lienors  to  be- 
lieve that  it  was  not  intended  to  become 
such.  Jensen  v.  Griffin,  50:  1128,  144  N.  W. 
119,  32  S.  D.  613. 

Debts  and  liens  for  purchase  money. 

Priority  over  homestead  rights  of  claim  for 
money  advanced  to  redeem  from  fore- 
closure of  purchase  money  mortgage, 
see  Mortgage,  45. 

27.  Money  loaned  by  a  vendor  to  vendee 
to  improve  the  land  purchased,  pursuant  to 
the  terms  of  the  sale,  is  not  purchase  money 
within  the  meaning  of  the  statute  which 
subjects  a  homestead  to  execution  for  the 
satisfaction  of  a  decree  foreclosing  a  ven- 
dor's lien.  City  Sav.  Bank  v.  Thompson, 
41:  89,  136  N.  W.  992,  91  Neb.  628. 

(Annotated) 

28.  Under  a  statute  making  a  vendor's 
lien  superior  to  a  homestead,  the  unpaid 
purchase  price  on  a  contract  for  the  pur- 
chase of  real  estate  by  a  married  woman  is 
a  lien  superior  to  a  homestead  interest  sub- 
sequently acquired  by  the  husband  by  mov- 
ing a  house  owned  by  him  on  to  the  proper- 
ty, though  the  husband  did  not  execute  and 
acknowledge  the  contract  of  purchase.  City 
Sav.  Bank  v.  Thompson,  41:  89,  136  N.  W. 
992,  91  Neb.  628. . 

Uability  for  tort. 

29.  The  exemption  of  lands  acquired  un- 
der the  homestead  laws  and  the  timber-cul- 
ture laws  (act  March  4,  1896,  chap.  40,  29 
Stat,  at  L.  43,  U.  S.  Comp.  Stat.  1901,  p. 
1537;  §  4,  20  Stat,  at  L.  113,  114,  chap.  190; 
Digest   1-52  L.R.A.(N.S.) 


act  May  20,  1862,  chap.  75,  §  4,  12  Stat,  at 
L.  393,  U.  S.  Rev.  Stat.  §  2296,  U.  S.  Comp. 
Stat.  1901,  p.  1398)  from  any  "debt  con- 
tracted" previous  to  their  acquisition,  does 
not  exempt  them  from  liabilities  for  the 
torts  of  the  entrymen,  previously  perpetrat- 
ed. Brun  V.  Mann,  12:  154,  151  Fed.  145, 
8C  C.  C.  A.  513. 

30.  A  judgment  for  fraud  in  effecting  a 
sale  of  property  cannot  be  satisfied  out  of  a 
homestead  which  the  seller  had  purchased 
on  contract  prior  to  the  fraud,  although  he 
has  made  payments  on  it  since  the  price 
was  received  for  the  property  fraudulently 
sold.  Allen  v.  Crane,  16:  947,  116  N.  W.  392, 
152  Mich.  380.  (Annotated) 

III.  Loss;  abandonment. 

(See  also   same  heading  in  Digest   L.R.A. 
1-10.) 

Dispossession  of,  by  ejectment,  see  supra,  5. 
See  also  infra,  51. 

Abandonment. 

31.  The  head  of  the  family  has  the  right 
and  power,  when  acting  in  good  faith  to- 
ward the  family,  to  diminish  the  extent  of 
the  homestead  by  using  a  part  thereof  as 
the  site  for  another  dwelling  to  be  sold  or 
rented.  Jensen  v.  Griffin,  50:  1128,  144  N. 
W.  119,  32  S.  D.  613. 

32.  A  statute  making  a  conveyance  of  a 
homestead  of  no  validity  unless  executed  by 
the  wife  does  not  prevent  abandonment  of 
the  homestead,  or  apply  to  a  conveyance 
made  thereafter.  Stewart  v.  Pritchard,  37: 
807,  141   S.  W.  505,   101  Ark.   101. 

33.  Neither  spouse  can  abandon  the 
homestead  for  the  other  without  his,  or  her, 
free  consent.  Weatherington  v.  Smith,  13: 
430,  109  N.  W.  381,  77  Neb.  363. 

34.  Departure  itrom  a  homestead  for 
pleasure,  business,  or  health  does  not  con- 
stitute an  abandonment.  Weatherington  v. 
Smith,  13:  430,  109  N.  W.  381,  77  Neb.  363. 

35.  Neither  the  husband,  nor  the  wife, 
can  abandon  the  family  homestead,  and 
thereafter  sell  and  convey  the  same  to  an- 
other to  the  exclusion  of  the  homestead  right 
of  an  insane  spouse.  Weatherington  v. 
Smith,  13:  430,  109  N.  W.  381,  77  Neb.  363. 

(Annotated) 

36.  A  homestead,  occupied  by  the  husband 
and  children  while  the  wife  is  insane  and 
confined  in  an  asylum  is  not  abandoned  by 
the  husband's  sentence  ^nd  confinement  for 
a  term  of  years  in  the  penitentiary  and  the 
removal  of  the  minor  children  from  the 
homestead ;  and  upon  the  pardon  and  return 
of  the  husband  no  act  or  conduct  of  his  can 
be  held  to  constitute  an  abandonment  or 
alienation  of  the  homestead  during  the  life- 
time of  the  wife  and  while  she  continues  in- 
sane. Withers  t.  Love,  3:  514,  83  Pac.  204, 
72  Kan.  140.  (Annotated) 

37.  Removal  from  a  homestead,  with  no 
present  or  constant  and  abiding  intention 
of  returning,  constitutes  an  abandonment 
of  the  right.  Stewart  v.  Pritchard,  37:  807, 
141  S.  W.  505,  101  Ark.  101. 


HOMESTEAD,  IV.  a. 


1419 


38.  The  intent  with  which  one  removes 
from  his  homestead  will,  for  the  purpose  of 
determining  wliether  or  not  he  has  pre- 
served his  right,  be  determined  from  all  the 
facts  and  circumstances  accompanying  the 
removal, — his  express  declarations  relative 
thereto,  its  adaptability  as  a  homestead  ac- 
cording to  his  views  and  desires,  his  acts 
thereafter,  and  the  prolongation  of  his  ab- 
sence therefrom.  Stewart  v.  Pritchard,  37: 
807,    141    S.    W.    505,    101    Ark.    101. 

39.  A  married  woman  who  has  been 
abandoned  by  her  husband  abandons  her 
right  of  homestead  in  a  tract  of  land  on 
which  she  is  living  with  her  children  by 
making  a  homestead  entry  upon  another 
track  of  government  land,  and  perfecting 
her  title  thereto,  although,  while  she  is  per- 
fecting her  title,  she  remains  more  or  less 
upon  the  old  homestead.  Somers  v.  Som- 
ers,  36:  1024,  131  N.  W.  1091,  27  S.  D.  500. 

40.  By  moving  from  one  lot  to  another 
a  dwelling  house  constituting  part  of  a 
homestead,  the  homestead  interest  in  the 
house  is  not  lost,  where  the  owner  and  his 
family  live  in  it  while  it  is  being  moved, 
abandon  the  old  location,  and  in  the  new 
location  continue  to  occupy  the  house  as 
their  homestead;  and  the  homestead  rights 
are  superior  to  the  lien  of  a  vendor  of  the 
land  for  the  money  loaned  for  placing  the 
house  thereon.  City  Sav.  Bank  v.  Thomp- 
son, 41:  89,  136  N.  W.  992,  91  Neb.  628. 
Death  of  members  of  family. 

See  also  supra,  22. 

41.  Although  a  right  of  exemption  under 
Kan.  Const,  art.  15,  §  9,  providing  that  "a 
homestead  .  .  .  occupied  as  a  residence 
by  the  family  of  the  owner  .  .  .  shall 
be  exempted  from  forced  sale  under  any 
process  of  law,"  cannot  originate  without  the 
existence  of  a  family  or  household  consist- 
ing of  more  than  one  person,  yet,  when  the 
homestead  character  has  once  attached,  it 
may  persist  for  the  benefit  of  a  single  in- 
dividual who  is  the  sole  surviving  member 
of  the  family.  Weaver  v.  First  Nat.  Bank 
of  Chicago,  16:  no,  94  Pac.  273,  76  Kan.  540. 

( Annotated ) 

IV.  Alienation;  encumbrance  and  trans- 
mission of  exempt  property. 

a.  Sale,  lease,  or  mortgage. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  of  alienation  as  vested  right,  see  Con- 
stitutional Law,  59. 

Taking  away  absolute  right  of  alienation  in 
exercise  of  police  power,  see  Consti- 
tutional Law,  644. 

Estoppel  to  deny  validity  of  mortgage  on, 
see  Estoppel,  37. 

Estoppel  to  deny  validity  of  conveyance, 
see  Estoppel,  53,  140. 

Conveyance  of,  to  avoid  a  debt,  see  Fraudu- 
lent Conveyances,  110. 

See  also  supra,  35;  Partition,  13. 

42.  A  conveyance  of  a  perpetual  ease- 
Digest  1-52  I..R.A.(N.S.) 


I  ment  for  a  railway  right  of  way  over  a 
homestead  is  an  encumbrance  thereon  and 
an  alienation  of  an  interest  therein.  De- 
lisha  V.  Minneapolis,  St.  P.  R.  &  D.  Electric 
Traction  Co.  27:  963,  126  N.  W.  276,  110 
Minn.  518. 

43.  A  conveyance  by  a  married  man 
without  the  joining  of  his  wife,  of  a  perma- 
nent railroad  right  of  way  over  land  owned 
and  occupied  by  himself  and  family  as  a 
homestead,  is  void.  Delisha  v.  INIinneapolis, 
St.  P.  R.  &  D.  Electric  Traction  Co.  27:  963, 
126    N.    W.    276,    110    Minn.    518. 

( Annotated ) 

44.  An  owner  of  lands,  by  agreeing  to 
convey  a  permanent  railway  right  of  way 
thereacross,  does  not  thereby  elect  to  select 
his  homestead  outside  of  the  limits  of  the 
right  of  way,  where  the  designation  of  the 
particular  part  to  be  taken  is  left  entirely 
to  the  railway  company,  although  there 
would  be  sufficient  of  the  tract  left  after  se- 
lection to  constitute  a  full  homestead  ex- 
emption, so  as  to  avoid  a  statute  providing 
that  a  contract  by  a  married  man  to  convey 
such  a  right  of  way  over  his  homestead  is 
void  without  the  signature  of  his  wife.  De- 
lisha V.  Minneapolis,  St.  P.  R.  &  D.  Electric 
Traction  Co.  27:963,  126  N.  W.  276,  110 
Minn.  518. 

45.  The  fact  that  the  wife  of  a  lot 
owner  did  not  join  in  any  deed  or  con- 
veyance is  immaterial  on  the  question  of 
the  creation  of  a  revocable  license  in  favor 
of  an  adjoining  owner  and  his  grantee, 
where  the  evidence,  although  tending  to 
show  that  the  lot  was  occupied  as  a  home- 
stead at  the  time  of  the  conveyance  from  the 
adjoining  owner  to  his  grantee,  does  not 
show  that  it  was  so  occupied  as  a  home- 
stead at  the  time  of  the  creation  of  the 
license.  Johnson  v.  Bartron,  44:  557,  137 
N.  W.  1092,  23  N.  D.  629. 

46.  An  attempted  conveyance  by  deed, 
mortgage,  or  otherwise,  of  his  homestead, 
by  a  married  man,  without  his  wife's  signa- 
ture, is  void,  although  at  the  time  she  may 
have  abandoned  him  and  her  home,  and  may 
be  living  an  adulterous  life.  Murphy  v. 
Renner,  8:  565,  109  N.  W.  593,  99  Minn.  348. 

(Annotated) 

47.  A  quitclaim  deed  by  a  married  wo- 
man, of  her  interest  in  the  homestead,  is 
without  effect,  under  a  constitutional  pro- 
vision that  alienation  of  a  homestead  by  a 
married  man  shall  not  be  valid  without  the 
signature  of  the  wife  to  the  same;  nor  can 
it,  in  connection  with  the  husband's  con- 
tract to  convey,  be  held  to  constitute  a  land 
contract  enforceable  in  equity.  Lott  v.  Lott, 
8:  748,  109  N.  W.  1126,  146  Mich.  580. 

( Annotated ) 

48.  A  lease  of  a  homestead  for  a  period 
of  five  years  is  a  conveyance  within  the 
meaning  of  §  6203,  Cobfey's  Anno.  Stat. 
1903,  and  is  void  unless  executed  and  ac- 
knowledged by  both  husband  and  wife. 
Kloke  V.  Wolff,  11:99,  111  N".  W.  134,  78 
Neb.    504.  (Annotated) 

49.  A  contract  by  a  man  conferring  the 
agency  for  sale  of  his  homestead,  which  em- 
powers the  agent  to  get  any  sum  which  he 


1420 


HOMESTEAD,  IV.  l>— HOxVllClDE. 


can  for  his  commission,  above  a  stated 
amount  which  is  to  be  net  to  the  owner, 
confers  no  interest  in  the  property,  and  is 
therefore  not  void  because  not  signed  by 
his  wife,  and  he  will  be  liable  for  the 
amount  of  commission  which  the  agent  has 
succeeded  in  adding  to  the  net  price  of  the 
property,  in  case  he  refuses  to  convey  to 
a  customer  which  the  agent  secures.  Hayes 
v.  McAra,  35:116,  131  N.  W.  535,  166  Mich. 
198.  ( Annotated ) 

50.  That  a  man  has  abandoned  his  home- 
stead, so  as  to  forfeit  his  rights  in  it,  does 
not  enable  his  wife  to  convey  it  without 
his  signature,  where  the  statute  provides 
that  a  conveyance  of  a  homestead  shall  be 
of  no  validity  unless  the  husband  and  wife 
concur  in  and  sign  the  same  joint  instru- 
ment. Somers  v.  Somers,  36:  1024,  131  N. 
W.  1091,  27  S.  D.  500.  (Annotated) 

51.  Upon  conversion  into  money,  through 
foreclosure  proceedings,  of  a  mortgage  exe- 
cuted on  property  upon  which  a  homestead 
was  thereafter  declared,  the  mortgage  is  not 
to  be  regarded  as  upon  the  homestead  ex- 
emption so  that  it  is  cut  off  by  foreclosure; 
but  both  the  amount  of  the  mortgage  and  of 
the  homestead  allowance  may  be  taken  from 
the  fund  before  distribution  is  made  to  judg- 
ment creditors  of  the  homesteader.  White  v. 
Horton,  18:  490,  97  Pac.  70,  154  Cal.  103. 

■^  ( Annotated ) 

ft.  Transmission  in  case  of  death. 

(See  also  same  heading  in  Digest  L.R.A- 
1-10.) 

Rights  of  creditor  after  death  of  home- 
steader, see  supra,  19-23. 

Conflict  of  laws  as  to  descent  of  wife's  in- 
terest in,  see  Conflict  of  Laws,  120. 

Devise  of,  see  Wills,  202. 

See  also  supra,  7. 

52.  A  divorced  man  whose  children  are 
adults  and  have  all  deserted  him  in  his 
old  age,  and  who  has  perfected  his  title  to 
a  homestead  entry,  except  the  making  of 
final  proof,  as  to  his  readiness  to  make 
which  he  has  given  notice,  may  devise  the 
homestead  to  a  stranger,  who  furnishes 
him  necessary  care  and  protection.  Hays 
V.  Wyatt,  34:  397,  115  Pac.  13,  19  Idaho, 
544. 

53.  A  homesteader  may,  under  the  Fed- 
eral public  land  law,  either  leave  his  home- 
stead to  his  adult  heirs,  where  he  has  no 
widow  or  minor  children,  without  making 
a  will,  or,  if  he  prefers  to  devise  the  home- 
stead to  some  one  or  other  of  his  heirs, 
he  may  do  so  and  thereby  cut  off  the  other 
adult  children.  Hays  v.  Wyatt,  34:  397,  115 
Pac.   13,   10   Idaho,  544.  (Annotated) 

V.  Allotment  and  setting  apart. 

■(See  also  same  heading  in  Digest  L.R.A. 
1-tO.) 

54.  If  a  house,  and  the  tract  upon  which 
it  is  located,  but  which  is  subdivided  into 
lots,  do  not  exceed  in  value  the  amount 
Digest  1-52  I^R.A.(N.S.) 


which  the  owner  is  entitled  to  claim  as  a 
homestead,  he  may,  upon  constructing  a 
new  dwelling  upon  part  of  the  lota, 
which  raises  the  value  of  the  entire  tract 
above  what  he  is  entitled  to  claim  as  ex- 
empt, claim  the  new  building  and  the  lots 
connected  therewith  as  his  homestead,  if 
it  is  not  excessive  in  value,  although  the 
effect  is  to  defeat  the  lien  of  those  who 
furnished  material  for  its  construction. 
Volker-Scowcroft  Lumber  Co.  v.  Vance, 
24:  321,   103  Pac.  970,  36  Utah,  348. 


HOMICIDE. 


/.  In  general,  1—61. 
II.  What  reduces  crime  to  manslaugh' 
ter,   62-71. 
III.  Excusable  or  justifiable  homicide, 
72-105. 
a.  In  general,   72—90. 
ft.  Self-defense,   91—105. 

Record  on  appeal  in  homicide  case,  see  Ap- 
peal AND  Erkob,  168,  169. 

Employment  of  private  counsel  to  assist 
prosecution,  see  Appeal  and  Errob, 
362;  District  and  Prosecuting  At- 
torneys, 2. 

Presumptions  on  appeal,  see  Appeal  and 
Error,  468,  477. 

When  new  trial  granted  to  one  convicted  of, 
see  Appeal  and  Ebeob,  560;  New 
Tbial,  18,  44,  55. 

Discretion  as  to  permitting  withdrawal  of 
plea  of  guilty,  and  to  have  jury  trial, 
see  Apppal  and  Errob,  585. 

Raising  objection  for  first  time  on  appeal, 
see  Appeal  and  Error,  771. 

Indictment  for,  see  Appeal  and  Ebbob, 
1048;  Indictment,  etc.,  18,  24,  73-76, 
110,   111,   117-122. 

Argument  of  counsel  or  prosecuting  attor- 
ney, see  Appeal  and  Ebrob,  641,  1449, 
1451;  Tbial,  66,  73. 

Misconduct  of  judge,  see  Appeal  and  Ebbob, 
1466,  1467;  Trial,  90. 

Permitting  jury  to  take  dying  declaration 
to  jury  room,  see  Appeal  and  Ebbob, 
1477. 

Absence  of  accused  when  motion  for  new 
trial  was  ordered,  see  Appeal  and  Eb- 
bob, 1481. 

Error  in  excluding  expert  witnesses  from 
court  room  during  testimony,  see  Ap- 
peal and  Ebbob,  1484. 

Prejudicial  error  in  summoning  and  select- 
ing jury,  see  Appeal  and  Ebbor,  1491, 
1494. 

Reversal  of  conviction  for  misconduct  of 
jury,  see  Appeal  and  Error,  1507. 

Reducing  punishment  on  appeal,  see  Appeal 
and  Error,  1600-1602. 

Reversal  of  conviction  on  appeal,  see  Appeal 
and  Error,  1625. 

Assault  with  intent  to  kill,  see  Assault 
AND  Battery,  22-25. 

Right  to  bail  of  person  accused  of,  see 
Bail  and  Recognizance,  13-15. 


HOMICIDE. 


1421 


Finding  of  indictment  pending  of  certiorari 
proceedings    to    review    action    of    com- 
mitting magistrate,   see  Certioeari,   1. 
Change  in  punishment  as  ex  post  facto,  see 

Constitutional  Law,  39. 
Statute    committing   to   state   hospital   one 
acquitted   of   murder  on  ground  of  in- 
sanity, see  Constitutional  Law,  547. 
Contempt    or    misconduct    toward,    or    by, 

juror,  see  Contempt,  8,  9. 
Liability  of  corporation  for,   see  Corpora- 
tions, 129,  130. 
Right    of    court   to    order    disinterment    of 
corpse     for     evidential     purposes,     see 
Corpse,  16,  17. 
Jurisdiction  of  court,  see  Courts,  26. 
Attempt  to  commit,  see  Criminal  Law,  47. 
Responsibility  for  homicide  by  accomplice, 

see  Criminal  Law,  50-52. 
Duty  of  jury  to  find  degree  of  offense,  see 

Criminal  Law,  68. 
Self-crimination   of   one  charged   with,    see 

Criminal  Law,  119. 
Waiver  of  rights  by  accused,  see  Criminal 

Law,  128,  201,  203,  204;  Jury,  I.  c. 
Sufficiency  of  warrant  of  commitment,  see 

Criminal  Law,  132. 
Plea  of  guilty  in  prosecution  for,  see  Crim- 
inal Law,  150,  151. 
Right  of  accused  to  order  to  enable  him  to 
secure    evidence,    see    Criminal    Law, 
160. 
Conviction  of  murder  as  acquittal  of  man- 
slaughter, see  Criminal  Law,  188. 
Former   jeopardy,  see  Criminal  Law,  188, 

189,  201,  203,  204. 
Conviction  of  assault  as  bar  to  prosecution 
for    murder    after   victim's    death,    see 
Criminal  Law,  214. 
Commitment  to  prison  of  persons  acquitted 
on   ground   of   insanity,   see   Criminal 
Law,  232-234,  242,  262. 
Stay    of   execution    of    death    sentence,    see 

Criminal  Laav,  288. 
As  aflfecting  right  to  inherit,  see  Descent 
AND  Distribution,  8-10;  Husband  and 
Wife,  68,  69. 
Manslaughter    as    ground    for    divorce,    see 

Divorce  and  Separation,  60. 
Judicial  notice,  see  Evidence,  16. 
Presumption  and  burden  of  proof,  see  Evi- 
dence, 96,  107-109,  122,  221-223,  257, 
299,  300. 
Presumption  that  one  acquitted  of  murder 
on  ground  of  insanity  continued  insane, 
see  Evidence,  319. 
Admissibility  of  documentary  evidence,  see 

Evidence,  778,  779. 
Evidence    of   confessions   on    trial    for,    see 

Evidence,  VIII. 
Admissibility  of  threats,  see  Evidence,  X.  i. 
Admissibility  of  dying  declarations,  see  Evi- 
dence, X.  1. 
Opinion    evidence    in    prosecution    for.    see 
Evidence,  1092,  1160,  1161,  1164,  1176- 
1179,  1185,  1188. 
Hypothetical  question  to  expert  witness,  see 
Appeal   and    Error,    1266;    Evidence, 
1071. 
Use  of  finger  prints  to  identify  accused,  see 

Evidence,  1176-1179. 
Digest   1-52  L,R.A.(N.S.) 


Admissibility  of  declarations  of  co-conspira- 
tors in  prosecution  for,  see  Evidence, 
1463,  1464. 

Evidence  as  to  complaint  of  suffering  by  al- 
leged victim,  see  Evidence,  1476, 

Evidence  of  character  and  reputation  of  ac- 
cused, see  Evidence,  1553-1556. 

Evidence  as  to  character  or  reputation  of 
person  killed,  see  Evidence,  1560-1567. 

Evidence  of  good  character  of  wife  in  prose- 
cution of  husband  for  murder  of  alleged 
paramour,  see  Evidence,  1575. 

Evidence  as  to  motive,  see  Evidence,  1593, 
1653-1657. 

Evidence  as  to  intent,  see  Evidence,  1635, 
1636. 

Evidence  on  question  of  mental  condition 
of  accused,  see  Evidence,  1604-1606. 

Evidence  in  explanation  and  rebuttal,  see 
Evidence,  1924,  1926-1928.  •. 

Evidence  generally  admissible  in  prosecu- 
tion for,  see  Evidence,  806,  882,  1357- 
1359,  1397,  1829-1835,  1839,  1914, 
1978-1983. 

Review  of  discretion  as  to  admission  of  evi- 
dence, see  Appeal  and  Error,  609. 

Prejudicial  error  in  admission  of  evidence, 
see  Appeal  and  Error,  1122,  1123, 
1127,  1128,  1153,  1177. 

Prejudicial  error  in  exclusion  of  evidence, 
see  Appeal  and  Error,  1246,  1259, 
1266,  1268. 

Sufficiency  of  evidence  to  warrant  holding 
one  charged  with,  without  bail,  see 
Evidence,  2348. 

Sufficiency  of  proof  in  prosecution  for,  see 
Evidence,  2349,  2355,  2359,  2373,  2377- 
2384. 

Variance  between  indictment  and  proof,  see 
Appeal  and  Error,  766;  Evidence, 
2504,  2504a. 

As  to  order  of  proof,  see  Appeal  and  Error, 
1488 ;  Trial,  39. 

Habeas  corpus,  see  Habeas  Corpus,  25,  71. 

Conviction  for  assault  with  deadly  weapon 
upon  indictment  charging  murder,  see 
Indictment,  Information  and  Com- 
plaint, 122. 

Of  insured,  effect  on  right  to  recover,  see 
Insurance,    698-701;    Pleading,    523. 

As  to  jury,  see  Jury. 

Proximate  cause  of,  see  Proximate  Cause, 
159. 

Right  to  reward  for  arrest  of  murderer,  see 
Reward,  3. 

While  hunting,  see  Statutes,  218. 

Permitting  reading  to  jury  of  evidence  tak- 
en upon  issue  of  sanity  of  accused,  see 
Trial,  24. 

Submitting  to  jury  question  of  form  of  pun- 
ishment, see  Trial,  92. 

Insanity  of  accused  as  question  for  jury,  see 
Trial,  238,   241. 

By  convict  in  resisting  illegal  corporal  pun- 
ishment by  warden,  see  Trial,  293. 

Question  of  lav/  or  fact  in,  see  Trial,  670- 

674. 
Peremptory  instruction,  see  Trial,  782. 
Instructions   on   trial    for,   see   Trial,   880, 

888,   913-932,   949,   1069,   1083-1094. 
Presumption  as  to  harmlessness  of  instruc- 
tion, see  Appeal  tustd  Error,  468. 


1422 


HOMICIDE,  I. 


Prejudicial  error  in  instructions,  see  Ap- 
peal AND  Erkob,  1324-1327. 

Failure  or  refusal  to  instruct,  see  Appeal 
AND  Eeror,  1423,  1424,  1430. 

Correctness  of  verdict,  see  Trial,  1150. 

Verdict  as  curing  error  on  prosecution  for, 
see  Appeal  and  Erboe,  863,  864. 

Review  of  verdict  on  appeal,  see  Appeal  and 
Error,  928,  932. 

Change  of  venue  in  prosecution  for,  see 
Venue,  28. 

Competency  of  wife  as  witness  against  hus- 
band in  prosecution  for,  see  Witnesses, 
33. 

Cross-examination  of  witnesses,  see  Wit- 
nesses, 108. 

Cross-examination  of  accused,  see  Wit- 
nesses, 121. 

Contradicting  or  discrediting  witnesses,  see 
Witnesses,   150,   151,  173,   174-176. 

Corroboration  of  witness,  see  Witnesses, 
194. 

I.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  The  defense  of  insanity  to  a  charge  of 
murder  in  the  first  degree  in  no  event  ad- 
mi  "^  the  grade  of  the  offense  charged.  State 
v.  Speyer,  14:  836,  106  S.  W  505,  207  Mo. 
640. 

Negligent  homicide. 

By  neglecting  dependent  person,  see  infra, 
12-16,  47. 

Effect  of  concurring  cause,  see  infra,  52-56. 

Intent  of  one  setting  spring  gun,  see  Evi- 
dence, 1635. 

Question  for  jury  as  to  whether  killing  was 
natural  result  of  negligence,  see  Tbial, 
189. 

Question  for  jury  as  to  negligence,  see 
Trial,  674. 

Instructions  in  prosecution  for,  see  Trial, 
943,  1069,  1086. 

See  also  infra,  74;  Jury,  76. 

2.  The  mere  fact  that  a  pregnant  wom- 
an, so  badly  frightened  by  the  reckless 
firing  of  guns  on  the  highway  as  to  cause 
her  to  abort  shortly  thereafter,  languished 
and  died,  does  not  render  the  one  respon- 
sible for  the  firing  indictable  for  murder, 
since  the  death  cannot  be  said  to  be  the 
natural  or  probable  result  of  the  fright. 
Com.  V.  Couch,  16:  327,  106  S.  W.  830,  32  Ky. 
L.   Rep.   638.  (Annotated) 

3.  One  who  drives  an  automobile  with 
criminal  negligence  so  that  a  passenger  is 
thrown  out  and  the  resulting  shock  causes 
delirium  tremens  because  of  his  alcoholic 
condition,  which  results  in  death,  is  guilty 
of  manslaughter,  if  the  illness  would  not 
have  occurred  and  caused  the  death  had 
the  wounds  from  the  fall  not  been  received. 
State  v.  Block,  49:  913,  89  Atl.  167,  87 
Con.  573.  I 

4.  One  is  guilty  of  homicide  who,  with 
reckless  disregard  for  the  safety  of  others, 
so  negligently  drives  an  automobile  in  a 
public  street  as  to  strike  and  kill  a  pedes- 
Digest  1-52  L.R.A.(N.S.) 


trian.      State    v.    Goetz,    30:  458,    76    Atl. 
1000,  83  Conn.  437.  (Annotated) 

5.  One  who  drives  an  automobile  reck- 
lessly, carelessly,  and  negligently,  and  at  a 
rate  of  speed  forbidden  by  the  statute,  upon 
the  public  streets  or  highways  of  this  state, 
and  thereby  causes  the  death  of  another,  is 
guilty  of  criminal  homicide.  Schultz  v. 
State,  33:  403,   130  N.  W.  972,  89  Neb.   34. 

(Annotated) 

6.  Where  a  person  wilfully,  recklessly, 
carelessly,  and  negligently,  and  at  an  unlaw- 
ful rate  of  speed,  as  defined  by  the  statute, 
drives  his  automobile  upon  the  public  streets 
and  highways,  and  thereby  kills  another, 
negligence  of  the  driver  of  another  car,  in 
which  the  deceased  was  riding  when  he  was 
killed,  cannot  be  invoked,  under  ordinary 
circumstances,  to  relieve  such  person  of 
criminal  liability.  Schultz  v.  State,  33:  403, 
130  N    W.  972,  '89  Neb.  34. 

7.  A  physician  may  be  charged  with 
manslaughter  by  causing  the  death  of  a  sick 
child  by  advising  a  diet  which  results  in 
its  starvation,  under  a  statute  which  treats 
all  persons  concerned  in  the  commission  of 
an  offense  as  principals,  although  it  was  the 
mother  of  the  child  who  actually  withheld 
the  food  from  it  in  the  absence  of  the  ac- 
cused. State  V.  McFadden,  14:  1140,  93  Pac. 
414,  48  Wash.  259. 

8.  One  guilty  of  gross  negligence  in  han- 
dling a  gun,  by  reason  of  which  he  produces 
the  death  of  another,  may  be  convicted  of 
manslaughter  in  the  second  degree.  Mc- 
Daniel  v.  State,  21:678,  46  So.  988,  156 
Ala.  40. 

9.  One  who  intentionally  points  a  gun 
at  another,  which  is  by  statute  made  a  mis- 
demeanor, is  guilty  of  manslaughter  in  the 
second  degree  if  the  gun,  while  so  pointed, 
is  accidentally  discharged,  producing  the 
death  of  the  one  towards  whom  it  is  pointed. 
McDaniel  v.  State,  21:  678,  46  So.  988,  156 
Ala.  40. 

10.  If  one  points  a  loaded  gun  and  dis- 
charges it  in  a  direction  other  than  at  a 
person  who  is  in  fact  killed  by  the  bullet 
reaching  his  person,  glancing  from  another 
object,  that  one  is  yet  guilty  of  a  homi- 
cidal offense,  if  he  knew,  or  ought  reason- 
ably to  have  known,  that  his  conduct  was 
dangerous  to  human  life  and  yet  he  acted 
regardless  thereof.  Oborn  v.  State,  31:966, 
126  N.  W.  737,  143  Wis.  249. 

11.  One  is  guilty  of  manslaughter  who 
killed  another  with  a  gun  intentionally 
pointed  at  him,  although  it  was  believed  to 
have  been  unloaded,  where  such  pointing  of 
a  gun  is,  by  statute,  made  a  misdemeanor, 
and  the  gun  had  not  been  handled  for  sev- 
eral weeks,  so  that  accused  was  culpably 
negligent.  State  v.  Stitt,  17:  308,  61  S.  E. 
566,  146  N.  C.  643. 

Neglect;    failure    to    fnniish    medical 

care. 
See  also  infra,  47. 

12.  For  a  parent  having  special  charge 
of  an  infant  child  to  neglect  it  so  culpably 
that  death  ensues  as  a  consequence  of  such 
neglect  is  manslaughter,  although  death  or 


HOMICIDE,  I. 


1423 


grievous  bodily  harm  was  not  intended. 
Stehr  V.  State,  45:  559,  139  N.  W.  676,  92 
Neb.   755. 

13.  One  charged  with  the  support  and 
control  of  a  child  of  tender  years,  suffering 
with  frozen  feet,  who  negligently  and  wil- 
fully fails  or  refuses  to  obtain  for  it  nec- 
essary medical  aid,  thereby  causing  its 
death,  may  be  guilty  of  such  criminal  neg- 
ligence as  to  render  him  guilty  of  man- 
slaughter. Stehr  V.  State,  45:  559,  139  N. 
W.  676,  92  Neb.  755.  (Annotated) 

14.  A  man  cannot  be  convicted  of  invol- 
untary manslaughter  in  failing  to  furnish 
medical  assistance  to  his  wife  during  her 
confinement,  if  his  failure  to  secure  a  physi- 
cian was  due  to  her  insisting  that  she  could 
manage  the  case  without  such  aid,  and  he, 
after  assisting  her  all  he  could,  and  upon 
discovering  her  peril,  called  upon  neighbors 
for  assistance  and  then  secured  a  physician, 
whose  services  did  not  then  prevent  death. 
Westrup  V.  Com.  6:  685,  93  S.  W.  646,  123 
Ky.  95.  (Annotated) 

15.  Evidence  that  defendant's  child,  an 
infant  between  6  and  7  years  of  age  and 
a  member  of  his  household,  was  ill  with  a 
disease  which  turned  out  to  be  diphtheria 
from  a  Thursday  to  the  following  Tuesday, 
when  it  died  of  such  disease,  during  part 
of  which  time  it  had  Christian  Science  treat- 
ment, but  not  medical  aid  or  assistance  in 
the  ordinary  sense  of  the  term;  that  if  the 
child  had  received  the  medical  treatment 
usual  in  such  cases  its  life  would  have  been 
prolonged  and  in  all  probability  it  would 
have  recovered;  together  with  defendant's 
admission  that  he  realized  the  serious  condi- 
tion of  the  child,  and,  had  he  not  been  a 
Christian  Scientist,  that  he  would  have 
called  a  doctor,  is  sufficient  to  warrant  the 
jury  in  finding  him  guilty  of  manslaughter. 
Rex  V.  Lewis,  1  B.  R.  C.  732,  6  Ont.  L.  Rep. 
132. 

16.  One  who  has  taken  to  his  rooms  for  a 
carousal  a  Avoman  accustomed  to  debauch- 
ery and  assignations  owes  her  no  such  legal 
duty  that  he  will  be  guilty  of  manslaughter 
if,  after  the  lapse  of  a  couple  of  days,  dur- 
ing which  they  have  consumed  much  in- 
toxicating liquor,  when  it  becomes  neces- 
sary for  her  to  depart,  she  takes  a  drug 
with  suicidal  intent,  and  he  does  nothing  to 
prevent  her  death,  which  results  in  due 
course.  People  v.  Beardsley,  13:  1020,  113 
N.  W.  1128,  150  Mich.  206. 
Deliberation;    premeditation;    \irilful- 

ness. 
Necessity  of  instruction  as  to  cooling  time, 

see  Teial,  930. 
Correctness   of    instruction    which    fails   to 

require  jury  to  find  premeditation  and 

deliberation,  see  Trial,  1091. 
See  also  infra,  41. 

17.  Deliberation  and  premeditation  are 
not  necessary  elements  of  the  crime  of  mur- 
der. State  v.  McGuire,  38:  1045,  80  Atl. 
761,  84  Conn.  470. 

18.  An  instruction  which  tells  the  jury 
that  before  they  can  find  the  defendant  guilty 
of  murder,  they  must  believe  from  the  evi- 
dence beyond  all  reasonable  doubt  that  the 
Dieest  1-52  L.R.A.(N.S.) 


defendant  wilfully,  maliciously,  deliberate- 
ly, feloniously,  and  unlawfully  killed  the 
deceased,  is  erroneous  since  it  is  not  neces- 
sary that  these  elements  should  coexist  in 
order  to  find  the  defendant  guilty  of  mur- 
der in  the  second  degree  State  v.  Legg,  3: 
1152,  53  S.  E.  545,  59  W.  Va.  315. 

19.  To  bring  a  homicide  within  the  stat- 
ute defining  murder  in  the  first  degree  as  one 
committed  with  deliberately  premeditated 
malice  aforethought,  all  that  is  necessary 
is  that  a  resolution  to  kill  must  have  fol- 
lowed deliberation  and  premeditation,  and 
that  the  killing  must  have  been  in  pur- 
suance of  the  resolution,  regardless  of  the 
rapidity  with  which  the  commission  of  the 
crime  followed  its  first  suggestion.  Com. 
V.  Tucker,  7:  1056,  76  N.  E,  127,  189  Mass. 
457.  (Annotated) 

20.  A  killing  which  is  not  deliberate, 
malicious,  or  for  revenge,  but  is  intentional, 
is  murder  in  the  second  degree,  or  man- 
slaughter in  the  fourth  degree,  under  a  stat- 
ute which  declares  an  intentional  killing 
without  malice  aforethought  to  be  man- 
slaughter in  that  degree.  State  v.  Speyer, 
14:  836,  106  S.  W,  505.  207  Mo.  540. 

21.  One  who  prepares  himself  with  a 
deadly  weapon  and  lies  in  wait  for  a  tres- 
passer on  his  property  may  be  found 
guilty  of  murder  for  killing  him,  although 
a  statute  provides  that  every  person  who 
shall  unnecessarily  kill  another  while  re- 
sisting an  attempt  by  such  person  to  do 
an  unlawful  act  shall  be  guilty  of  man- 
slaughter. Brown  v.  State,  34:  811,  54  So. 
305,  98  Miss.  786, 

22.  The  killing  of  a  boy  by  his  father  is 
not  deliberate,  within  the  rule  that  a  kill- 
ing must  be  with  premeditation  and  delib- 
eration to  constitute  murder  in  the  first  de- 
gree, when  the  father,  under  apprehension  of 
immediate  separation  from  the  child,  and 
the  fear  that  it  may  be  disgraced  and  mis- 
treated, finding  it  asleep,  is  struck  with  the 
thought  of  killing  it,  which  he  instantly  ex- 
ecutes, no  malignity  existing  in  his  heart 
towards  the  child  at  the  time,  and  the  deed 
not  being  prompted  by  motives  of  revenge. 
State  V.  Speyer,  14:  836,  106  S.  W.  505.  207 
Mo.  540. 

23.  Wilfulness  is  a  necessary  ingredient 
of   the   crime   of    manslaughter.     Shipp    v. 
Com.   10:  335,  99  S.  W.  945,  124  Ky.  643. 
Malice;  intent. 

Intent  of  one  setting  spring  gun,  see  Evi- 
dence, 1635. 

Intent  as  question  for  jury,  see  Trial,  292. 

Question  for  jury  as  to  existence  of  malice, 
see  Trial,  670. 

See  also  supra,  18-20;  infra,  41,  47. 

24.  Legal  malice  is  the  intent  unlawfully 
to  take  human  life  in  cases  where  the  law 
neither  mitigates  nor  justifies  the  killing. 
Mann  v.  State,  4:  934,  53  S.  E.  324,  124 
Ga.  760. 

25.  Hatred,  ill-will,  or  malevolence  on 
the  part  of  the  accused  towards  deceased 
is  not  a  necessary  ingredient  of  the  malice 
necessary  to  constitute  murder  in  the  first 
degree.  Turner  v.  State,  15:  988,  108  S. 
W.   1139,  119  Tenn.  663. 


1424 


HOMICIDE,  I. 


26.  To  sustain  a  conviction  for  murder, 
it  is  as  essential  to  show  the  intent  direct- 
ly or  circumstantially  as  it  is  to  show  the 
killing  itself,  since  intent  is  a  part  of  the 
res  gestce.  Smithson  v.  State,  36:  397,  137 
S.  W.  487,  124  Tenn.  218. 

27.  To  sustain  a  conviction  of  murder, 
the  jury  must  find  that  the  killing  was  done 
with  malice  aforethought.  Watkins  v.  Com. 
38:  1052,  142  S.  W.  1035,  146  Ky.  449. 

(Annotated) 

28.  Malice  aforethought  in  the  law  of 
homicide  relates  not  merely  to  the  state 
of  mind  of  the  person  who  unlawfully  kills 
another,  but  to  the  moral  aspect  of  the 
act  as  indicated  by  all  the  conditions  and 
circumstances  attending  it.  State  v.  Mc- 
Guire,  38:  1045,  80  Atl.  761,  84  Conn.  470. 
v  (Annotated) 
•'-  29.  Although  murder  perpetrated  by 
means  of  poison  is  declared  to  be  murder  in 

.  the  first  degree  by  Idaho  Rev.  Stat.  1887,  § 
6562,  yet  it  is  necessary  to  prove  "malice 
aforethought,"  which,  under  §  6560,  is  an  es- 
sential element  of  the  crime  of  murder. 
State  V.  Phinney,  12:  935,  89  Pac.  634,  13 
Idaho,  307. 

30.  One  cannot  be  convicted  of  homicide 
by  the  use  of  a  baseball  bat  in  the  absence 
of  anything  to  show  an  intent  to  kill,  since 
such  bat  is  not  per  se  a  deadly  weapon. 
Crow  V.  State,  21:  497,  116  S.  W.  52,  55  Tex. 
Crim.  Rep.  200.  (Annotated) 

31.  Where  malice  and  intent  are  ele- 
ments of  murder  in  the  second  degree,  a 
person  is  not,  as  matter  of  law,  guilty  ot 
that  crime  because  he  sets  a  spring  gun 
from  which  a  homicide  results.  State  v. 
Marfaudille,  14:  346,  92  Pac.  939,  48  Wash. 
117.  (Annotated) 

32.  One  who  shoots  at  another,  although 
without  intending  to  kill  him,  cannot,  if  the 
shot  proves  fatal,  be  convicted  of  an  of- 
fense defined  by  statute  as  the  involuntary 
killing  of  another.  Johnson  v.  State,  5:  809, 
108  N.  W.  55,  129  Wis.  146. 

Motive. 

33.  The  showing  of  motive  is  not  neces- 
sary to  sustain  a  conviction  for  murder. 
House  V.  State,  21:  840,  48  So.  3,  94  Miss. 
107. 

34.  Proof  of  motive  is  not  indispensable 
in  a  prosecution  for  homicide  where  the  jury 
is  satisfied  of  the  guilt  of  the  accused  with- 
out it.  State  V.  Buck,  42:  854,  127  Pac.  631, 
88  Kan.  114. 

While  engaged  in  nnlairful  act. 
Question  for  jury  as  to,  see  Trial,  189. 
See  also  Criminal  Law,  50-52. 

35.  Death  resulting  from  the  violation 
of  a  municipal  ordinance  is  not  within  the 
meaning  of  a  statute  defining  manslaughter 
as  the  unintentional  killing  of  another 
while  the  slayer  is  in  the  commission  of 
some  unlawful  act.  State  v.  Collingsworth, 
28:  770,  92  N.  E.  22,  82  Ohio  St.  154. 

( Annotated ) 

36.  One  who  in  making  an  unlawful  as- 
sault upon  another  so  terrorizes  his  relative 
that  death  ensues  from  fright,  fear,  or  ner- 
vous shock,  is  guilty  of  involuntary  man- 
slaughter, under  a  statute  defining  that  of- 
Digest   1-52   L,.R.A.(N.S.) 


fense  to  be  the  unla-wful  killing  of  a  human 
being  in  the  commission  of  an  unlawful  act 
not  amounting  to  felony.  Ex  parte  Heigho, 
32:  877,  110  Pac.   1029,   18  Idaho,  566. 

37.  Mere  violation  of  a  statute  making 
it  a  misdemeanor  to  hunt  on  another's 
property  without  a  permit  is  not  such  an 
unlawful  act  as  to  render  an  accidental 
homicide  committed  while  so  doing  a  crimin- 
al offense.  State  v.  Horton,  i:  991,  51  S. 
E.  945,  139  N.  C.  588.  (Annotated) 

38.  An  offense  malum  in  se  is  one  which 
is  naturally  evil  as  adjudged  by  the  sense 
of  a  civilized  community.  State  v.  Horton, 
i:  991,  51  S.  E.  945,  139  N.  C.  588. 

39.  A  burglar  who,  while  attempting  to 
escapa  from  the  building  which  he  had  fe- 
loniously entered,  meets,  at  a  short  dis- 
tance therefrom  and  upon  another  iot,  a  po- 
lice officer,  whom  he  shoots  and  k:.'ls  after 
the  latter  had  commanded  him  to  halt,  is 
properly  found  guilty  of  murder  in  the  first 
degree,  committed  while  "in  th,j  perpetra- 
tion ot  the  burglary,"  within  the  meaning 
of  Ohio  Rev.  Stat.  §  6808.  Conrf,d  v.  State, 
6:  1154,  78  N.  E.  957,  75  Ohio  St.  52. 

40.  One  is  not  guilty  of  manslaughter 
for  the  death  of  a  bystander  through  the 
glancing  of  a  bullet,  when,  being  guilty  of 
a  misdemeanor  in  violating  statutes  against 
carrying  concealed  weapons,  being  drunk  in 
a  highway,  and  shooting  in  a  highway,  he 
fires  a  pistol  into  the  ground,  unless  the 
death  is  the  natural  or  probable  result  of 
his  act.  Dixon  v.  State,  45:  219,  61  So.  423, 
104  Miss.  410.  (Annotated) 

41.  Homicide  committed  in  the  perpe- 
tration of  a  robbery  is  murder  in  the  first 
degree;  in  such  a  case  the  turpitude  of  the 
act  supplies  the  element  of  deliberate  and 
premeditated  malice.  Pumphrey  v.  State, 
23:  1023,  122  N.  W.  19,  84  Neb.  636. 

42.  An  information  alleging  the  use  of  a 
certain  instrument  to  procure  the  abortion 
or  miscarriage  of  a  woman  pregnant  with  a 
vitalized  embryo,  not  necessary  or  medically 
advised  to  be  necessary  to  preserve  her 
life,  resulting  in  her  death,  charges  a  crime 
which  would  be  murder  at  the  common  law, 
and  which  is  manslaughter  in  the  first  de- 
gree under  §  12  of  the  crimes  act  (Gen. 
Stat.  1909,  §  2500).  State  v.  Harris,  49: 
580,  136  Pac.  264,  90  Kan.  807. 

43.  Although  an  instrument  is  used  with 
the  assent  of  the  woman  for  the  sole  pur- 
pose of  procuring  an  abortion  or  miscar- 
riage, still  such  use  and  purpose  being  im- 
moral, violative  of  the  law  of  nature,  de- 
liberate in  character,  reckless  of  life,  and 
necessarily  attended  with  danger  to  the 
mother  and  likely  seriously  to  injure  her, 
if  her  death  result  the  common  law  will 
imply  malice,  and  hold  the  person  so  using 
such  instrument  guilty  of  her  murder,  re- 
gardless of  whether  she  was  pregnant  with 
a  quick  child  or  with  a  vitalized  embryo. 
State  V.  Harris,  49:  580,  136  Pac.  264,  90 
Kan.  807.  (Annotated) 
Infliction    of    fatal    tironnd    by    tliird 

person. 
Homicide   by  co-conspirator,   see   Criminal 
Law,  50-52. 

v.'../i,i./..*i.J.  Hc.—t    ,t»9ai<l 


HOMICIDE,  I. 


1425 


44.  One  is  not  guilty  of  murder  for  the 
death  of  a  bystander,  who  is  struck  by  a  ball 
fired  at  the  accused  in  self-defense,  by  one 
on  whom  he  is  attempting  to  commit  rob- 
bery. Com.  V.  Moore,  2:  719,  88  S.  W.  1085, 
121  Ky.  97.  (Annotated) 

45.  One  who,  by  interfering  in  aid  of  his 
insane  parent,  whom  otlicers  are  attempting 
to  arrest,  frees  his  hands,  and  enables  him 
to  kill  one  of  the  oflicers,  is  guilty  of  mur- 
der. Johnson  v.  State,  2:  897,  38  So.  182, 
142  Ala.  70.  (Annotated) 

46.  The  mere  presence  of  a  woman  when 
her  paramour  kills  her  husband,  at  a  place 
to  which  the  latter  had  followed  them,  does 
not  render  her  guilty  of  homicide.  State  v. 
Larkin,  46:  13,  157  S.  W.  600,  250  Mo.  218. 
Encouraging    or    abetting    killing    by 

another. 

47.  Mere  presence  and  participation  in 
the  act  of  killing  a  human  being  are  not  con- 
clusive evidence  of  consent  and  concurrence 
in  the  perpetration  of  the  act,  by  one  sought 
to  be  held  responsible  for  the  homicide  as 
aiding  and  abetting  the  actual  perpetrator, 
unless  the  accused  participated  in  the 
felonious  design  of  the  person  killing. 
Brooks  V.  State,  12:889,  57  S.  E.  483,  128 
Ga.  261.  (Annotated) 

48.  The  mere  attempt  to  flee  from  the 
scene  of  a  homicide  before  the  fatal  shot  is 
fired  will  not  absolve  from  responsibility  one 
who  aided,  abetted,  and  encouraged  its  ccm- 
mission  to  the  extent  of  commanding  the 
one  who  committed  it  to  shoot  deceased. 
State  V.  Forsha,  4:  576,  88  S.  W.  746,  190 
Mo.   296.  (Annotated) 

49.  One  who  has  instructed  another  to 
kill  a  third,  and  furnished  him  with  shells 
for  that  purpose,  is  not  responsible  for  the 
killing  if,  after  being  diverted  from  his  pur- 
pose, the  person  receiving  the  instructions 
efTects  the  killing  to  aid  a  stranger  with 
whom  the  intended  victim  has  become  in- 
volved in  a  quarrel.  Owens  v.  State,  21: 
782,  33  So.  718,  82  Miss.  18. 
Encouraging     or     urging     another     to 

commit  suicide. 

50.  One  is  not  guilty  of  murder  in  induc- 
ing another  to  take  poison  which  results  in 
the  latter's  death,  if  the  latter  knew  the 
character  of  the  poison,  and  took  it  volun- 
tarily for  the  purpose  of  committing  sui- 
cide, under  a  statute  providing  that,  if  any 
person,  with  intent  to  injure,  cause  another 
person  to  inhale  or  swallow  any  substance 
injurious  to  health,  he  shall  be  deemed 
guilty  of  murder  if  death  results.  Sanders 
V.  State,  22:  243,  112  S.  W.  68,  54  Tex.  Crim. 
Rep.  101.  (Annotated) 
Mutual  combat. 

51.  Where  persons  armed  with  deadly 
weapons  voluntarily  and  willingly  enter  in- 
to a  combat,  knowing  or  having  reason  to 
believe  that  such  conflict  will  result  in  the 
infliction  of  serious  bodily  injury  or  m  the 
death  of  one  or  the  other  of  said  parties, 
and  one  of  said  parties  is  killed  in  such  con- 
flict, the  party  doing  the  killing  is  guilty 
of  murder,  and  is  not  entith'd  to  bail.  Ex 
parte  Colby,  45:  646,  124  Pac.  635,  6  Okla. 
Crim.  Rep.  187.  (Annotated) 
Digest   1-52  I..R.A.(N.S.) 


90 


Concurring  causes  of  death;  improper 
treatment. 

52.  One  who  has  inflicted  a  wound  upon 
another  not  necessarily  fatal  is  not  guilty 
of  murder  where  the  injury  resulting,  co- 
operating with  the  intervening  act  of  a  re- 
sponsible agency,  resulted  in  death.  State 
V.  Angelina,  51:  877,  80  S.  E.  141,  73  W.  Va. 
146.  (Annotated) 

53.  One  who  inflicts  a  mortal  wound  up- 
on another  is  not  guilty  of  murder  if  an  in- 
tervening responsible  agent  wrongfully 
accelerates  death  by  inflicting  another  in- 
jury, but  such  person  is  guilty  of  murder 
if  the  intervening  agent  is  irresponsible. 
State  V.  Angelina,  51:877,  80  S.  E.  141, 
73  W.  Va.  146. 

54.  One  of  two  persons  who  cause  the 
death  of  another  by  shooting  is  guilty  of 
homicide  if  the  wound  inflicted  by  him  con- 
tributed to  or  hastened  the  death,  although 
alone  it  might  not  have  been  fatal.  Ben- 
nett V.  Com.  43:  419,  150  S.  W.  806,  150  Ky. 
604.  (Annotated) 

55.  One  inflicting  a  wound  upon  an- 
other which  is  not  necessarily  fatal  is  not 
guilty  of  any  degree  of  culpable  homicide, 
although  the  victim  dies,  if  the  death  is 
caused  by  the  neglect  of  deceased  in  caring 
for  himself  after  receiving  the  injury,  or 
if  his  physician  so  grossly  mistreats  him 
as  to  cause  his  death.  Noble  v.  State,  22: 
841,  113  S.  W.  281,  54  Tex.  Crim.  Rep.  436. 

(Annotated) 

56.  Inflicting  upon  another  a  wound  not 
calculated  to  endanger  or  destroy  life,  but 
which,  because  of  improper  treatment,  does 
have  that  efl'ect,  does  not  render  one  guilty 
of  murder.  Tibbs  v.  Com.  28:  665,  128  S. 
VV.  871,  138  Ky.  558.  (Annotated) 
Miscellaneous. 

57.  The  grade  of  a  homicide  as  first-de- 
gree murder  is  not  changed  by  the  fact  that 
it  was  committed  in  pursuance  of  a  joint 
agreement  for  the  simultaneous  death  of 
both  parties.  Turner  v.  State,  15:  988,  108 
S.   W.   1139,   119   Tenn.   663.        (Annotated) 

58.  A  verdict  of  manslaughter  cannot  be 
justified  against  one  who  lies  in  wait  for  his 
victim,  seizes  him  without  warning,  and 
ends  his  life  with  a  deadly  weapon.  People 
V.  Owen,  21:  520,  118  N.  W.  590,  154  Mich. 
571. 

59.  One  hitting  a  bystander  when  shoot- 
ing at  another  with  intent  to  kill  the  lat- 
ter may  be  convicted  therefor,  under  a 
statute  providing  for  the  punishment  of 
whoever  shall  shoot  any  person  with  a  dan- 
gerous weapon  with  intent  to  commit  mur- 
der. State  V.  Thomas,  37:  172,  53  So.  868. 
127  La.  576. 

60.  The  fact  that  one  who  has  set  a 
spring  gun  to  protect  his  property  warns 
the  one  who  is  killed  by  it  of  its  existence 
is  no  defense  to  his  prosecution  for  murder, 
unless  the  notice  is  brought  home  to  de- 
cedent in  such  a  way  that  his  act  in  inter- 
fering with  the  gun  is  a  deliberate  attempt 
to  take  his  own  life,  although,  if  accused 
warned  the  only  person  who  had  a  right  to 
be  where  the  gun  was,  that  fact  may  be  ad- 
missible in  evidence  as  bearing  on  the  ques- 


1426 


HOMICIDE,  II. 


tion   of  malice.     State  v.   Marfaudille,   14: 
346,  92  Pac.  939,  48  Wash.  117. 

61.  Evidence  that  one  who,  after  a  dis- 
pute with  one  not  much,  if  any,  his  supe- 
rior in  strength,  as  to  who  would  pay  for  a 
round  of  drinks,  upon  being  called  a  liar, 
procured  a  weapon  and  returned  to  secur* 
an  apology  or  revenge,  drew  the  weapon, 
and,  while  his  adversary  was  merely  seek- 
ing to  prevent  its  successful  use,  discharged 
it  four  times,  sending  three  bullets  into  his 
victim  with  fatal  effect, — may  be  found  to 
evince  a  depraved  mind  regardless  of  human 
life  within  the  meaning  of  a  statute  de- 
claring a  killing  perpetrated  by  an  act  im- 
minently dangerous  to  others,  and  evincing 
a  depraved  mind,  regardless  of  human  life, 
without  any  premeditated  design  to  effect 
death,  to  be  murder  in  the  second  degree. 
Johnson  v.  State,  5:  809,  108  N.  W.  55,  129 
Wis.  146. 

IJ.  What  Induces  crime  to  man' 
slaughter. 

(See  also  same  heading  in  Digest  LJt.A. 
1-10.) 

EflFect  of  intoxication,  see  Appeal  and  Eb- 
EOR,  863 ;  Criminal  Law,  34,  35,  37-42. 

Instruction  as  to  manslaughter,  see  Trial, 
9] 8,  921-923,  1088. 

See  also  supra,  7-11,  20,  21. 

62.  The  fact  that  a  wife  murdered  by 
her  husband  was  unchaste  is  not  sufficient 
to  reduce  the  homicide  below  the  grade  of 
murder,  where  the  killing  did  not  occur  in 
a  sudden  heat  of  passion  resulting  from 
adequate  cause.  Rogers  v.  State,  10:  999, 
57  S.  E.  227,  128  Ga.  67. 

63.  The  killing  of  a  motorman  by  shoot- 
ing him  will  not  be  reduced  to  manslaugh- 
ter by  the  fact  that,  being  a  powerful  man, 
he  had  just  assaulted  a  smaller  man,  a 
friend  of  the  one  doing  the  shooting,  because 
of  misunderstanding  as  to  payment  of  fare, 
if  the  assault  had  ceased,  and  he  was  re- 
tiring from  the  combat.  Com.  v.  Paese,  17: 
795,  69  Atl.  891,  220  Pa.  371.  (Annotated) 
Heat  of  passion. 

Reversal  for  erroneous  definition  of,  see  Ap- 
peal A    D  Error,  1324. 

Failure  to  define,  see  Appeal  and  Error, 
1430. 

Presumption  of,  see  Evidence,  109. 

Question  for  jury  as  to,  see  Trial,  293. 

Necessity  of  instruction  as  to  cooling  time, 
see  Trial,  93t). 

64.  Heat  of  passion,  necessitating  the 
submission  to  the  jury  of  the  question  of 
liability  for  manslaughter,  rather  than  mur- 
der, may  be  found  where  defendant,  whose 
wife  had  eloped  with  another  man,  and  had 
returned  at  his  solicitation,  became  con- 
vinced that  she  was  deceiving  him  as  to  the 
bona  fides  of  the  reconciliation,  and,  seeing 
her  in  company  with  her  paramour  with 
what  he  believed  to  be  signs  and  conduct 
of  ridicule  of  himself,  he,  an  hour  or  two 
later,  equipped  himself  with  a  weapon, 
rushed  to  the  place  where  he  thought  he 
Dieest  1-52  KR.A.(N.S.) 


might  find  the  paramour,  shot  the  latter's 
friend,  and  then  ruslied,  apparently  blindly, 
to  where  his  wife  was  and  shot  her,  al- 
though he  himself  testified  that  he  acted 
under  delirium  and  unconsciousness  of  his 
acts.  Duthey  v.  State,  10:  1032,  111  N. 
W.  222,  131  Wis.  178. 

65.  The  heat  of  passion  which  will  re- 
duce what  would  otherwise  be  murder  to 
manslaughter  in  the  third  degree  is  such 
mental  disturbance  caused  by  a  reasonable 
and  adequate  provocation  as  would  ordinari- 
ly so  overcome  and  dominate,  or  suspend  the 
exercise  of,  the  judgment  of  an  ordinary 
man  as  to  render  his  mind  for  the  time  be- 
ing deaf  to  the  voice  of  reason,  to  make  him 
incapable  of  forming  and  executing  that 
distinct  intent  to  take  human  life  essential 
to  murder  in  the  first  degree,  and  to  cause 
him  uncontrollably  to  act  from  the  impell- 
ing force  of  the  disturbing  cause,  rather 
than  from  any  real  wickedness  of  heart  or 
cruelty  and  recklessness  of  disposition. 
Johnson  v.  State,  5:  809,  108  N.  W.  55,  12» 
Wis.    146.  (Annotated) 

66.  A  homicide  is  not  reduced  from  mur- 
der to  voluntary  manslaughter  by  the  fact 
that  it  resulted  from  sudden  passion  in- 
duced by  the  application  to  assailant  of  the 
epithet  "son  of  a  bitch."  Freddo  v.  State, 
44:  659,  155  S.  W.  170,  127  Tenn.  376. 

67.  The  killing  by  one  convict  of  an- 
other who  was  abetting  a  warden  in  in- 
flicting illegal  corporal  punishment  upon  the 
former  amounts  to  voluntary  manslaughter 
only,  where  the  killing  was  the  result  of 
sudden  and  irresistible  impulse  of  passion 
caused  by  the  assault,  as  the  security  of 
person,  except  as  expressly  provided  by 
statute,  remains  the  convict's  right,  and  if 
it  be  unlawfully  invaded  he  may  resist  such 
unlawful  invasion  as  if  there  had  been  no 
conviction,  and  is  therefore  entitled  to  the 
same  immunities  as  a  freeman.  Westbrook 
V.  State,  26:  591,  66  S.  E.  788,  133  Ga.  578. 

68.  Absence  of  design  to  effect  death, 
necessitating  the  submission  to  the  jury  of 
the  question  of  liability  for  manslaughter 
rather  than  murder,  may  be  found  from  the 
fact  that  a  man  who,  after  having  effected 
a  reconciliation  with  his  wife,  who  had 
eloped  with  another,  became  convinced  that 
she  was  deceiving  him,  and,  in  an  apparent 
blind  rage  and  passion,  rushed  to  a  place 
where  she  was,  threw  open  the  door  into  a 
room  where  there  were  a  number  of  per- 
sons, and  immediately  fired  his  weapon, 
showing  confusion,  excitement,  and  nonob- 
servance  of  things  about  him,  and  the  sub- 
sequent manifestation  of  ignorance  of  and 
surprise  at  the  fact  of  his  victim's  death. 
Duthey  v.  State,  10:  1032,  111  N.  W.  222, 
131  Wis.  178. 

69.  Confession  by  a  wife  of  adultery, 
and  the  assertion  of  intention  to  see  her 
paramour  again,  is  not  sufficient  to  reduce 
to  manslaughter  her  husband's  killing  of 
her,  under  a  statute  providing  that,  to  have 
that  effect,  there  must  be  an  assault  or  at- 
tempt to  commit  serious  injury,  "or  other 
equivalent  circumstances,  to  justify  the  ex- 


HOMICIDE,  III.  a. 


1427 


eitement  of  passion."  Stevens  v.  State,  38: 
99,  73  S.  E.  737,  137  Ga.  520.  (Annotated) 
Provocation. 

Question  for  jury  as  to,  see  Trial,  672. 

70.  Mere  words,  however  abusive  and  in- 
sulting, will  not  justify  an  assault,  nor  con- 
stitute a  sufticient  provocation  to  reduce  to 
manslaughter  what  would  otherwise  be  mur- 
der. State  V.  Buffington,  4:  154,  81  Pac. 
465,  71  Kan.  804.  (Annotated) 

71.  The  application  to  another  of  an 
opprobrious  epithet  by  one  in  a  squatting 
position,  and  nis  attempt  to  rise  apparently 
to  advance  upon  the  one  to  whom  the 
epithet  is  applied,  are  not  sufficient  to  re- 
duce his  killing  by  the  other  to  manslaugh- 
ter, if  he  was  not  at  the  time  in.  a  position 
to  make  an  assault.  Freddo  v.  State,  44: 
659,  155  S.  W.  170,  127  Tenn.  376. 

III.  Excusable  or  justifiable  homicide, 

a.  In  general. 

(See  also   same   heading   in  Digest   L.R.A. 
1-10.) 

Eflfect  of   intoxication   on   liability  for,   see 

Appeal  and  Ebbob,  863;  Cbiminal 

Law,  34,  35,  37-42. 
Insanity  or  irresistible  impulse  as  defense, 

see  Criminal  Law^,  29-35. 
Effect  of  somnambulism,  see  Cbiminal  Law, 

31. 
Reasonableness  of  belief  that  person  killed 

was    attempting    burglary,    see    Trial, 

197. 
Duty  to  instruct  as  to,  see  Trial,  926-928. 

72.  A  wife's  want  of  chastity  will  not 
justify  her  husband  in  killing  her.  Rogers 
V.  State,  10:  999,  57  S.  E.  227,  128  Ga.  67. 

73.  One  has  no  right  to  take  human  life, 
directly  or  indirectly,  to  prevent  a  mere 
trespass  upon,  or  theft  of,  his  property. 
State  v.  Marfaudille,  14:  346,  92  Pac.  939, 
48  Wash.  117. 

74.  A  homicide  resulting  from  the  run- 
ning of  fire  apparatus  through  a  crowd  in 
answer  to  a  false  alarm  turned  in  by  the 
participants  in  the  run,  for  the  avowed  pur- 
pose of  making  the  run  to  see  the  people 
scatter,  is  not  excusable  under  a  statute 
providing  that  homicide  shall  be  excusable 
when  committed  by  accident,  or  in  doing 
any  other  lawful  act  by  lawful  means  with 
the  usual  and  ordinary  caution,  and  with- 
out unlawful  intent.  State  v.  Brecount, 
28:  187,  107  Pac.  763,  82  Kan.  195. 

In  resisting  arrest. 
See  also  infra,  94. 

75.  Resistance  to  the  extent  of  taking 
life  cannot  be  made  to  an  unlawful  arrest 
where  the  arrest  is  attempted  by  a  known 
•officer  and  nothing  is  to  be  reasonably  ap- 
prehended jeyond  a  mere  temporary  deten- 
tion in  jail.  State  v.  Meyers,  33:  143,  110 
Pac.  407,  57  Or.  50.  (Annotated) 
Jn  making  arrest. 

As  to  instructions,  see  Trial,  932. 
See  alj3o  infra,  105. 

76.  A  peace  officer  in  arresting  one 
Digest   1-52  L.R.A.(N.S.) 


charged  with  a  misdemeanor  has  no  right 
to  shoot  him,  unless  he  forcibly  resists  the 
arrest  and  the  arrest  cannot  otherwise  be 
made,  or  it  appears  to  the  officer,  in  the 
exercise  of  a  reasonable  judgment,  that  it 
cannot  be  otherwise  made.  Com.  v.  Mar- 
cum,  24:  1194,  122  S.  W.  215,  135  Ky.  1. 

77.  A  watchman  not  a  police  officer,  who, 
to  effect  the  arrest  of  a  person  who  is  not 
shown  to  have  committed  any  offense,  and 
whom  he  was  therefore  not  justified  in  ar- 
resting, shoots  him,  cannot  avoid  liability 
for  murder  on  the  theory  that  he  intended 
only  to  wound  him  to  effect  the  arrest,  and 
not  to  kill  him.  Demato  v.  People,  35:  621, 
111  Pac.  703,  49  Colo.  147.  (Annotated) 
Defense  o£  dwelling. 

Duty  to  instruct  as  to,  see  Tbial,  925. 

78.  Where  one  is  assailed  in  his  home  or 
domicil,  or  the  home  is  attacked,  he  may 
use  such  means  as  are  necessary  to  repel 
the  assailant  from  the  house,  or  prevent  his 
forcible  entry  or  material  injury  to  the 
home,  even  to  the  taking  of  life;  but  a 
homicide  in  such  a  case  would  not  be  justi- 
fiable unless  the  slayer,  in  the  careful  and 
proper  use  of  his  faculties,  bona  fide  believes, 
and  has  reasonable  ground  to  believe,  that 
the  killing  is  necessary  to  repel  the  assail- 
ant or  prevent  his  forcible  entry.  Young  v. 
State,  2:  66,  104  N.  W.  867,  74  Neb.  346. 

( Annotated ) 

79.  A  box  stall  at  a  fair  ground,  pro- 
vided with  inside  fastenings  to  its  doors, 
which  is  prepared  and  used  by  a  man  as 
his  office  and  sleeping  apartment,  the  place 
where  he  resides,  he  having  no  other  place  of 
abode,  and  which  contains  his  clothing,  his 
money,  and  all  of  his  belongings,  is  in  legal 
effect  his  home  or  domicil.  Young  v.  State, 
2:  66,  104  N.  W.  867,  74  Neb.  364. 

80.  A  householder  who  is  awakened  from 
sleep  at  night  to  find  a  stranger  kicking 
at  the  door  and  threatening  to  enter  the 
dwelling  will  be  justified,  upon  the  stran- 
ger's breaking  a  window  to  effect  an  en- 
trance, in  killing  him,  although  the  intrud- 
er is  not  armed,  if  the  householder  be- 
lieves, or  has  reasonable  ground  to  believe, 
that  his  act  is  necessary  to  prevent  harm 
to  himself  or  his  family,  or  the  violent 
entrv  of  his  home.  State  v.  Gray,  45:  71, 
77  S".  E.  833,  162  N.  C.  608.       (Annotated) 

81.  A  man  may  kill  his  brother-in-law 
to  prevent  the  latter  from  entering  his 
house  in  search  of  the  wife  of  the  brother- 
in-law  if  he  believes,  upon  reasonable  cause, 
that  the  brother-in-law  feloniously  intends 
to  assault  or  kill  inmates  of  the  house, 
under  a  statute  making  justifiable  a  homi- 
cide in  defense  of  habitation  against  one 
who  manifestly  intends  in  a  violent  man- 
ner to  enter  the  habitation  of  another,  for 
the  purpose  of  assaulting  or  offering  person- 
al violence  to  any  person  therein.  Bailey 
V.  People,  45:  145,  130  Pac.  832,  54  Colo. 
337.  (Annotated) 

82.  A  roomer  in  a  house  cannot  when 
attacked  by  its  owner,  in  the  building,  out 
of  his  own  room,  take  life,  without  re- 
treating,  on   the  theory  that   he   is   in  his 


1428 


HOMICIDE,  III.  b. 


own    habitation.      State    v.    Dyer,    29:  459, 
124  N.  W.  629,  147  Iowa,  217. 
Defense    of   third   person. 

Prejudicial  error  in  instruction,  see  Appeal 

AND  Error,  1326,  1327. 
See  also  supra,  81. 

83.  One  who  strikes  to  defend  his 
brother  from  assault  is  bound  by  his 
brother's  fault  in  bringing  on  the  difficulty, 
although  the  assistance  is  rendered  in  good 
faith,  in  a  sudden  emergency  affording  no 
time  to  discover  who  the  aggressor  was. 
State  V.  Cook,  15:  1013,  59  S.  E.  862,  78  S. 
C.  253.  (Annotated) 

84.  The  use  of  more  force  than  is  neces- 
sary, which  results  in  killing  the  assailant, 
will  not  render  one  guilty  of  murder,  who 
goes  to  the  defense  of  his  child  against  an 
assault  which  threatens  death  or  serious 
bodily  injury.  Mayhew  v.  State,  39:  671, 
144  S.  W.  229,  —  Tex.  Grim.  Rep.  — . 

85.  The  culpability  of  one  who  kills  an 
assailant  in  defense  of  his  son  is  not  meas- 
ured by  the  rights  which  the  son  might  have 
had  to  defend  himself,  but  upon  the  appear- 
ance of  conditions  when  the  father  appeared 
upon  the  scene,  unless  he  knew,  or  might 
reasonably  have  known,  the  actual  rights 
possessed  by  the  son  under  the  circum- 
stances of  the-  conflict.  Mayhew  v.  State, 
39:  671,  144  S.  W.  229,  —  Tex.  Crim.  Rep. 
— .  ( Annotated ) 

86.  That  one  who  kills  another  in  de- 
fense of  his  son  was  informed  and  believed 
that  deceased  had  made  threats  of  bodily 
harm  or  death  against  the  son  will  justify 
his  acting,  although  the  threats  were  not  in 
fact  made.  Mayhew  v.  State,  39:  671,  144 
S.  W.  229,  —  Tex.  Crim.  Rep.  — . 

87.  A  concert  of  action  between  two  per- 
sons assailing  another  with  intent  to  kill 
him  or  do  him  great  bodily  harm  is  not 
necessary  to  justify  the  father  of  the  latter 
in  defending  the  son  against  the  attacks  of 
both  or  either,  to  the  extent  of  taking  life, 
if  necessary.  Mayhew  v.  State,  39:  671,  144 
S.  W.  229,  —  Tex.  Crim.  Rep.  — . 

88.  That  one  had,  because  of  provocation, 
threatened  to  kill  another,  will  not  render 
him  guilty  of  murder  if,  upon  the  latter's 
attacking  his  son,  he  goes  to  the  aid  of  the 
son  and  kills  the  assailant,  for  the  sole 
purpose  of  protecting  the  son  from  death 
or  great  bodily  injury.  Mayhew  v.  State, 
39:  671,  144  S.  W.  229,  —  Tex.  Crim.  Rep. 

89.  Under  a  statute  making  homicide 
justifiable  when  committed  by  a  parent 
while  resisting  an  attempt  to  commit  fel- 
only  upon  a  child,  when  there  is  a  reason- 
able ground  to  apprehend  the  design  to  com- 
mit a  felony  or  to  do  some  great  personal 
injury,  and  imminent  danger  of  such  design 
being  accomplished,  a  father  has  the  right 
to  defend  his  daughter  against  an  assault 
with  intent  to  rape,  irrespective  of  her 
previous  reputation,  and  he  may  do  this 
immediately  and  with  the  most  effective 
means  at  his  command ;  and,  if  he  kills  her 
assailant,  the  law  will  hold  him  guiltless, 
even  though  it  may  afterwards  turn  out 
that  he  might  have  prevented  the  offense  ' 
l>ieest   1-52  I<.R.A.(N.S.) 


by  the  use  of  some  other  means,  provided 
only  that  the  father  acts  in  good  faith, 
and  upon  reasonable  appearances  of  immi- 
nent danger  to  his  daughter.  Litchfield  v. 
State,  45:  153,  126  Pac.  707.  8  Okla.  Crim. 
Rep.  164. 

90.  Under  a  statute  making  homicide 
justifiable  when  committed  by  a  parent  in 
the  lawful  defense  of  his  child  when  there 
is  a  reasonable  ground  to  apprehend  a  de- 
sign to  commit  a  felony,  or  to  do  some 
great  personal  injury  upon  such  child,  and 
imminent  danger  of  such  design  being  ac- 
complished, the  right  therein  given  may  be 
exercised  for  prevention  alone,  and  never 
can  justify  that  which  is  done  for  ven- 
geance only,  and  after  the  commission  of  the 
felony  or  bodily  injury  is  complete.  Litch- 
field V.  State,  45:  153,  126  Pac.  707,  8  Okla. 
Crim.  Rep.  164. 

b.  Self-defense. 

(See   also   same   heading   in  Digest   L.R.A. 
1-70.) 

Presumption  and  burden  of  proof  as  to,  see 

Evidence,  91,  107,  108. 
Admissibility   of  threats   by   person   killed, 

see  Evidence,  1479-1483. 
Evidence  as  to   character   or   reputation   of 

person  killed,  see  Evidence,  1560-1567. 
Question  for  jury  as  to,  see  Trial,  671,  674. 
Duty  to  instruct  as  to,  see  Trial,  925. 
Correctness  of  instruction  as  to,  see  Trial, 

1090,  1093. 
See  also  supra,  67 

91.  One  is  not  deprived  of  the  right  to 
use  a  weapon  in  self-defense  by  the  fact  that, 
at  the  time,  he  is  carrying  it  contrary  to 
law.  State  v.  Doris,  16:  660,  94  Pac.  44,  51 
Or.  136. 

92.  One  is  not  deprived  of  the  right  of 
self-defense  when  attacked  by  another,  by 
the  fact  that  he  has  enticed  the  latter's 
wife  from  her  home  for  illicit  purposes. 
State  V.  Larkin,  46:  13,  157  S.  W.  600,  250 
Mo.  218.  (Annotated) 

93.  One  loses  his  right  to  shoot  again  in 
self-defense  after  firing  a  shot  which  dis- 
abled his  assailant  so  that  there  is  no 
'onger  any  apparent  danger,  and  if  he  con- 
tinues to  shoot,  thereby  producing  or  has- 
tening the  death  of  his  victim,  he  may  be 
guilty  of  manslaughter.  Burnaman  v.  State, 
46:  looi,  159  S.  W.  244,  70  Tex.  Crim.  Rep. 
361. 

94.  That  an  officer  attempting  to  rearrest 
one  who,  having  been  arrested  under  war- 
rant for  misdemeanor,  has  escaped  from  cus- 
tody, dangerously  menaces  his  life,  does  not 
authorize  him  to  kill  the  officer  in  self-de- 
fense,— especially  where  the  statute  makes 
one  guilty  of  misdemeanor  who  obstructs 
an  officer  in  the  discharge  of  his  duty. 
State  v.  Durham,  5:  10 16,  53  S.  E.  720,  141 
N.  C.  741.  (Annotated) 
Provoking  difELcnlty. 

95.  Voluntarily  entering  into  a  diffi- 
cultv    which    results    in    a    homicide    does 


.'-'•■  r.  1./-. 


if-'Hitl 


HOROSCOPE;   HORSE  RACE. 


1429 


not  deprive  one  of  the  right  to  rely  on  self- 
defense  as  a  justification,  unless  it  is  done 
for  some  unlawful  purpose.  State  v.  Feeley, 
3:  351,  92  S.  W.  663,  194  Mo.  300. 

96.  One  is  not  deprived  of  the  right  of 
self-defense  by  the  fact  that  he  seeks  an- 
other to  straighten  out  a  misunderstanding, 
and,  during  the  interview,  applies  to  him  op- 
probrious epithets  which  provoke  an  as- 
sault. State  V.  Doi-is,  16:  660,  94  Pac.  44, 
51  Or.  136. 

97.  That  one  who  seeks  an  interview 
with  another,  who  he  is  justified  in  be- 
lieving has  insulted  his  wife,  uses  toward 
him,  during  the  interview,  words  of  abuse 
and  vilification,  does  not  deprive  him  of  the 
right  of  self-defense,  if  his  adversary  is 
thereby  provoked  to  make  an  attack  on  him. 
Gray  v.  State,  22:  513,  114  S.  W.  635,  55  Tex. 
Grim.  Rep.  90. 

Duty  to   retreat. 

Instructions  as  to,  see  Appeal  and  Ebiiob, 

1327;  Trial,  924. 
See  also  supra,  82. 

98.  The  duty  to  retreat  before  killing  in 
self-defense  does  not  arise  in  case  of  one 
who,  knowing  of  .epeated  threats  to  kill 
him,  made  by  the  person  killed,  went,  at 
the  latter's  request,  to  his  place,  taking  his 
rifle  with  him,  in  accordance  with  the  cus- 
tom of  the  country,  to  settle  a  dispute  over 
a  crop  of  hay,  and  shot  and  killed  the  de- 
ceased while  he  was  attempting  to  get  his 
gun,  which  was  near  at  hand,  as  an  attempt 
to  escape  would  have  been  futile.  State  v. 
Gardner,  2:  49,  104  N.  W.  971,  96  Minn.  318. 

(Annotated) 

99.  The  application  of  the  doctrine  of 
"retreat  to  the  wall,"  originating,  as  it  did, 
before  the  general  introduction  01  firearms, 
has  due  reference  to  the  diff'erence  in  danger 
between  a  hand  to  hand  encounter  with 
fists,  clubs,  or  even  knives,  and  an  en- 
counter in  an  open  space,  involving  the  use 
of  repeating  rifles  by  men  experienced  in 
handling  them.  State  v.  Gardner,  2:  49,  104 
N.  W.  971,  96  Minn.  318.  (Annotated) 

100.  In  case  of  affray,  where  retreat  is 
necessary  before  taking  the  adversary's  life 
in  self-defense,  that  retreat  must  be  in 
good  faith,  not  as  a  cover  to  execute  a 
fixed  design  to  kill.  State  v.  Hood,  15:  448, 
59  S.  E.  971,  63  W.  Va.  182. 

101.  One  assaulted  by  a  trespasser  with 
a  deadly  weapon  when  within  a  few  feet  of 
his  doorstep  is  not  bound  to  retreat,  but 
may  meet  force  with  force,  even  though  the 
result  is  the  death  of  his  adversary.  State 
V.  Brooks,  17:  483,  60  S.  E.  518,  79  S.  C.  144. 
Apprehension  of  danger;  necessity  of 

act. 
Evidence  to  rebut  necessity  of,  see  Evidence, 

1924. 
Question  for  jury  aa  to,  see  Trial,  673. 

102.  One  cannot  excuse  the  taking,  of 
life,  on  the  ground  of  self-defense,  unless  it 
was,  or  reasonably  appeared  to  be,  the 
only  means  of  saving  his  own  life,  or  pre- 
venting great  bodily  injury.  State  v.  Dyer, 
29:  459,  124  N.  W.  629,  147  Iowa,  217. 

103.  That  one  accused  of  murder  believed 
Digest  1-52  I..R.A.(N.S.) 


that  it  was  necessary  to  take  the  life  of 
his  adversary  to  protect  himself  will  not 
absolve  him  from  liability,  unless  he  had 
reasonable  cause  to  apprehend  danger, 
which  fact  must  appear  from  the  evidence. 
State  v.  Beckner,  3:  535,  91  S.  W.  892,  194 
Mo.  281.  (Annotated) 

104.  That  the  besotted  condition  of  mind, 
produced  by  voluntary  intoxication,  induced 
a  misapprehension  as  to  hostile  intentions 
of  another,  does  not  relieve  the  intoxicated 
person  from  criminal  liability  for  killing 
the  other  on  the  theory  that  he  acted  in 
self-defense.  Atkins  v.  State,  13:  1031,  105 
S.  W.  353,  119  Tenn.  458. 

105.  A  watchman  who,  in  attempting  to 
take  into  custody  a  person  who  has  not 
committed  any  crime,  causes  the  latter  to 
discharge  a  gun  towards  him,  cannot  justify 
shooting  him  after  he  has  turned  and  fled, 
on  the  theory  that  there  is  an  affray  be- 
tween the  parties.  Demato  v.  People,  35: 
621,  111  Pac.  703,  49  Colo.  147. 


HOROSCOPE. 


Forbidding  casting  or  reading  of,  see  Con- 
stitutional Law,  762. 


HORSE  RACE. 


Liability  for  injury  to  participant  in,  see 
Action  or  Suit,  39;  Amusements,  16; 
Animals,  30,  31;  Appeal  and  Error, 
1241;  Pleading,  149-153,  279. 

Ticket  of  admission  to  race  track  as  revoca- 
ble license,  see  Amusements,  1. 

Betting  on,  see  Betting;  Gaming,  22-26. 

Sale  of  pools  on,  as  breach  of  peace,  see 
Breach  of  Peace,  4. 

Delegation  to  commissioner  of  power  to  li- 
cense, see  Constitutional  Law,  101. 

Class  legislation  as  to,  see  Constitutional 
Law,  246. 

Regulation  of,  in  exercise  of  police  power, 
see  Constitutional  Law,  682. 

Right  of  one  obtaining  license  for  business 
of  book  making  and  pool  selling  in  vio- 
lation of  statute,  see  Contracts,  583. 

Liability  for  injury  bv,  on  street,  see  High- 
ways, 210,  211,  286. 

Larcenv  by  fraudulent  race,  see  Larceny, 
28! 

Revoking  license  of  racing  association,  see 
License,  30. 

Right  of  commission  empowered  to  regulate 
horse  races  to  forbid  book  making,  see 
License,  42. 

Nuisance  in  connection  with,  see  Nui- 
sances, 56,  59,  60. 

Injury  to   spectator. 

1,  A  patron  of  a  fair  on  the  grounds 
of  which  is  maintained  a  track  for  horse 
racing  is  not,  in  attempting  to  drive  from 
one  side  to  the  other  of  the  track,  when 
assured    of   the  safety   of   so   doing   by  the 


1430 


HORSES;   HORSE  TRADE. 


attendant  at  the  opening,  bound  to  main- 
tain a  constant  lookout  for  horses  which 
may  be  approaching  on  the  track.  Higgins 
V.  Franklin  County  Agri.  Soc.  3:  1,132,  62 
Atl.  708,  100  Me.  565. 

2.  A  fair  association  which  maintains 
on  its  grounds  a  track  for  horse  racing  is 
bound  to  use  reasonable  care  to  keep  the 
track  free  from  danger  to  patrons  at  times 
when  they  are  invited  or  permitted  to  cross, 
and  while  they  are  thus  crossing.  Higgins 
V.  Franklin  County  Agri.  Soc.  3:  1132,  62 
Atl.  708,  100  Me.  565.  (Annotated) 


HORSES. 

Fostering  breeding  of  thoroughbred  horses, 
see  Animads,  1. 

Fright  of,  see  Animals,  21,  22;  AtrroMO- 
BiLES,  38-51;  Evidence,  324,  490,  1145; 
Highways,  174,  199-202,  205,  277-284, 
338,  353;  Intebubban  Railway,  4; 
Limitation  of  Actions,  184;  Munici- 
pal CoBPOBATiONS,  333,  334,  347,  359; 
Negligence,  19,  20,  194,  213,  238,  293; 
Pleading,  23,  329,  333-338,  400;  Pbox- 
IMATE  Cause,  114,  163,  164;  Raileoads, 
II.  d,  5,  233-235,  240-242;  Stbeet  Rail- 
ways, 47,  53,  54,  69,  101;  Tbial,  413, 
417,  425,  439,  806,  1128. 

Malice  as  ingredient  of  offense  of  maiming, 
see  Animals,  45. 

Negligence  of  rider  or  driver  of,  in  approach- 
ing automobile,  see  Automobiles,  67- 
70. 

Injury  to,  while  in  hands  of  bailee,  see  Bail- 
ment, 13-17;  Evidence,  449. 

Loss  of  team  falling  from  defective  bridge, 
see  Bridges,  11. 

Transportation  of,  see  Cabbiers,  III.  f. 

Mortgage  on,  see  Chattel  Mortgage,  8. 

Right  of  state  to  forbid  importation  and  use 
of  docked  tailed  horses,  see  Commerce, 
38. 

SuflSciency  of  consideration  for  transfer  by 
city  of  sick  horse,  see  Contbacts,  65. 

Warranty  on  sale  of,  see  Damages,  188,  189, 
704;  Sale,  89,  98,  123,  175-179. 

Fraud  in  horse  trade,  see  Damages,  330; 
Evidence,  1627,  2415a;  False  Preten- 
ses, 18. 

Burden  of  showing  proximate  cause  of  in- 
jury by,  see  Evidence,  324. 

Presumption  of  negligence  from  running 
away  of,  see  Evidence,  459-461. 

Presumption  as  to  ownership  of  runaway 
horse,  see  Evidence,  612. 

Presumption  of  negligence  of  driver,  see 
Evidence,  490. 

Proof  of  negligence  where  horse  is  killed  by 
electric  shock  from  street  car  rail,  see 
Evidence,  2166. 

Exemption  of,  see  Exemptions,  15. 

Secret  advantage  given  by  vendor  to  one  of 
several  joint  purchasers  of  horses,  see 
Fraud  and  Deceit,  28. 

Injury  by  runaway  horse,  see  Highways, 
214;  Negligence,  188-194. 

Digest   1-52  I<.R.A.(N.S.) 


Liability  for  injury  to,  on  defective  highway, 
see  Highways,  265. 

Liability  for  injury  to,  during  runaway,  see 
Highways,  272. 

Negligence  in  leaving  unhitched  or  unat- 
tended in  highway,  see  Highways,.  338; 
Street  Railways,  101;  Trial,  4i4. 

As  to  horse  races,  see  Hobse  Races. 

Insurance  on,  see  Insurance,  181,  680. 

Insurance  against  liability  for  injuries  by, 
see  Insurance,  633. 

Injury  by  hired  horse,  see  Judgment,  47. 

Liability  of  lessee  placing  diseased  horse  in 
barn,  see  Landlord  and  Tenant,  104. 

Horse  stealing,  see  Larceny,  4. 

Stables  for,  see  Livery  Stables;  Nui- 
sances, 43-47 ;  Stables. 

Injury  to  one  hiring  horse  from  liveryman, 
see  Livery  Stables,  2-5. 

Liability  of  owner  for  injury  by  horse  in 
hands,  see  Master  and  Servant,  906- 
909,  911,  912,  919,  982,  987. 

Duty  to  warn  servants  as  to  \iciousness  of, 
see  Master  and  Servant,  236,  237. 

Lien  for  services  of,  see  Mechanics'  Liens, 

37. 
Hitching  of,  in  streets,  see  MuNiciPAi.  Cor- 
porations, 107-110. 

Forbidding  exhibition  of  stallion  on  street, 
see  Municipal  Corporations,  146. 

Liability  of  city  for  injury  to  employee  by 
vicious  horse,  see  Municipal  Corpora- 
tions, 408. 

Negligent  driving  of,  genera^lly,  see  Negli- 
gence, I.  b. 

Negligence  in  driving  vicious  horse,  see 
Negligence,  240. 

New  trial  in  action  for  killing  of,  on  rail- 
road track,  see  New  Trial,  30. 

Liability  of  purchaser  of  property  on  which 
nuisance  exists  for  loss  of  horses  re- 
sulting from,  see  Nuisances,  115. 

Negligence  in  entrusting  minor  son  with 
unruly  horse,  see  Parent  and  Child, 
2L 

Authority  of  agent  to  trade,  see  Principal 
AND  Agent,  34-36. 

Permitting  to  run  at  large,  see  Proximate 
Cause,  39. 

Proximate  cause  of  injury  to  driver  of,  see 
Proximate  Cause,  114. 

Proximate  cause  of  injury  to,  see  Proxi- 
mate Cause,  117. 

Injury  to,  by  railroad  train,  see  Railroads, 
II.  d,  6. 

Repudiation  of  purchase  of,  because  of 
fraud,  see  Sale,  112. 

Effect  of  death  of  horses  sold  with  retention 
of  title  in  seller  until  payment  of  pur- 
chase price,  see  Sale,  146. 

Injury  at  railroad  crossing  in  attempting 
to  stop  runaway  horse,  see  Trial,  1044. 

Free  water  supply  for  drinking  fountains, 
see  Waters,  360-362. 


HOBSE  TRADE. 


Measure  of  damages  for  fraud  in,  see  Dam- 
ages, 330. 

.11  ..I  V.G--L    jfer-iriCr 


HOSE;  HOSPITAL. 


1431 


Evidence  as  to  damages  for  fraud  in,  see 
Evidence,  1627. 

Sufficiency  of  proof  of  fraud  in,  see  Evi- 
dence, 2415a. 

False  pretenses  in  effecting,  see  False  Pre- 
tenses, 18. 

Agent's  authority  as  to,  see  Principal  and 
Agent,  34-36. 


HOSE. 

Cutting  off  fire  hose  by  railroad  train,  see 

Evidence,  2157. 
Injury  by  bursting  of,  see  Municipal  Cob- 

PORATIONS,  410,   412. 


HOSPITAL. 


As  charity,  see  Charities,  9-11. 

Charitable  gift  for,  see  Charities,  51. 

Boycott  against  by  employers,  see  Conspir- 
acy, 20. 

Provision  for  bipartisan  commission  to  have 
charge  of,  see  Constitutional  Law, 
174. 

Support  of  incompetent  person  in,  see  Con- 
stitutional Law,  194. 

For  treatment  of  inebriates,  see  Constitu- 
tional Law,  356;  Taxes,  120. 

As  nuisance,  see  Courts,  156;  Municipal 
Corporations,  152;  Nuisances,  40-42, 
71,  72,  157. 

Eight  to  show  by  parol  that  hospital  is  a 
charitable  organization,  see  ji,vidence, 
1042. 

Support  of  incompetent  person  in,  general- 
ly, see  Incompetent  Persons,  IV. 

Sale  of  liquor  near  building  maintained  by, 
as  training  school  for  nurses,  see  In- 
toxicating Liquors,  183. 

Running  of  limitations  against,  see  Limita- 
tion op  Actions,  100. 

Servant's  right  to  medical  attention  at,  see 
Master  and  Servant,  16,  17. 

Application  to  municipal  hospital  of  statute 
regulating  hours  of  labor,  see  Master 
AND  Servant,  92. 

Making  acquiescence  in  hospital  regulations 
condition  to  continuance  in  employ- 
ment, see  Master  and  Servant,  112. 

Requiring  permit  for  location  of,  within  city 
limits,  see  Municipal  Corporations, 
215. 

Power  of  city  to  maintain,  see  Municipal 
Corporations,  308,  309. 

Violation  by  municipality  of  statute  limit- 
ing hours  of  labor,  see  Municipal  Cor- 
porations, 499. 

Nurse  in,  as  servant,  see  Notice,  24. 

Action  in  name  of  treasurer  of,  to  recover 
compensation  for  care  furnished  by,  see 
Parties,  137. 

Arbitrary  termination  of  partnership  to 
operate,  see  Partnership,  51. 

Creation  of  state  hospitals  by  special  act, 
see  Statutes,  154. 

Exemption  of,  from  taxation,  see  Taxes, 
334. 

Digest  1-52  I..R.A.(N.S.) 


Remedy  for  location  of,  in  neighborhood,  see 

Nuisances,  71,  72. 

For  contagions  diseases. 

Liability  of  health  ofhcers  as  to,  see  Health, 
14-17. 

1.  A  city  cannot  remove  a  person  af- 
flicted with  a  communicable  disease  danger- 
ous to  public  health  into  an  adjoining  town 
without  the  consent  of  the  latter's  health  of- 
ficer, under  charter  authority  to  provide  hos- 
pitals either  within  or  without  its  limits,  to 
which  persons  having  contagious  diseases 
may  be  removed  when  the  public  safety  may 
so  require,  and  to  quarantine  persons  so  af- 
fected within  or  beyond  the  city  limits,  where 
the  general  health  laws  permit  townships  to 
obtain  quarantine  ground  without  their  lim- 
its witli  the  assent  of  the  township  within 
whose  limits  it  may  be  established,  and  pro- 
vide tliat  no  person  affected  with  a  com- 
municable disease  dangerous  to  public  health 
shall  be  brought  into  any  township  witliout 
a  permit  from  its  health  officer,  and  that 
these  provisions  shall  apply  to  all  cities  ex- 
cept in  cases  where  their  charters  contain 
provisions  inconsistent  herewith.  Summit 
Twp.  v.  Jaclison,  i8:  260,  117  N.  W.  545, 
154  Mich.  37.  (Annotated) 
Liability  for  negligence. 

Damages  for  injury  to  patient,  see  Damages, 
14,  423. 

Evidence  in  action  for  negligence,  see  Neg- 
ligence, 814,  1817. 

Sufficiency  of  evidence  to  show  negligence, 
see  Evidence,  2115. 

Negligence  in  driving  of  ambulance,  see 
Master  and  Servant,  35;  Negligence, 
181,  199. 

Failure  to  warn  nurse  of  dangerous  charac- 
ter of  disease,  see  Master  and  Serv- 
ant, 223;  Trial,  470,  471. 

Liability  of  municipal  corporations  for  neg- 
ligence of  agent  in  conducting,  see 
Municipal    Corporations,   425,   426. 

See  also  Charities,  76-93. 

2.  It  is  the  duty  of  the  proprietor  of  a 
sanitarium  to  compel  the  nurses  employed 
by  him  to  give  proper  care  to  patients 
placed  in  their  charge,  and  he  is  lir.ble  to  a 
patient  sustaining  personal  injuries  from 
the  negligent  administration  to  him  by  a 
nurse  of  medicine  other  than  that  pre- 
scribed. Stanley  v.  Schumpert,  6:  306,  41 
So.  565,  117  La.  255.  (Annotated) 

3.  A  day  patient  in  a  sanitarium,  who 
has  sustained  personal  injury  from  the  neg- 
ligent act  of  a  nurse,  who  administered  to 
him  medicine  other  than  that  prescribed, 
cannot  maintain  an  action  therefor  against 
a  physician  who,  before  the  injury  com- 
plained of,  but  while  the  patient  was  an  in- 
mate of  the  sanitarium,  transferred  his 
lease  to  another,  and  severed  his  connec- 
tion with  the  institution.  Stanley  v. 
Schumpert,  6:  306,  41  So.  565,  117  La.  255. 

4  A  physician,  not  the  owner  or  lessee 
of  a  sanitarium,  or  in  charge  of  a  patient's 
case,  is  not  liable  to  the  latter  for  a  per- 
sonal injury  due  to  the  negligent  adminis- 
tration of  medicine  by  a  nurse.  Stanley  v. 
Schumpert,  6:  306,  41  So.  565,  117  La.  255. 


1432 


HOT  ASHES— HOUSE   OF  REPRESENTATIVES. 


5.  That  a  hospital  receives  a  patient  who 
is  a  county  cliarge,  under  contract  with  the 
county  for  less  remuneration  than  the  serv- 
ice is  worth,  does  not  preclude  him  from 
holding  it  liable  to  him  for  injuries  caused 
by  the  negligence  or  incompetence  of  nurses. 
GitzlioflFen  v.  Holy  Cross  Hosp.  Asso.  8: 
ii6i,  88  Pac.  691,  32  Utah,  46. 

6.  The  mere  employment  of  competent 
attendants  does  not  exempt  a  hospital  main- 
tained by  a  railroad  company  for  the  bene- 
fit of  its  employees,  to  which  they  are  com- 
pelled to  contribute,  from  liability  for  in- 
juries caused  by  the  negligence  of  such  at- 
tendants. Phillips  V.  St.  Louis  &  S.  F.  R. 
Co.  17:  1167,  111  S.  W.  109,  211  Mo.  419. 

(Annotated) 

7.  A  corporation  organized  by  the  of- 
ficers of  a  railroad  company  to  operate  a 
hospital  for  the  benefit  of  employees  of  the 
road,  to  which  they  are  compelled  to  con- 
tribute, is  not  a  separate  institution,  for  the 
acts  of  which  the  railroad  company  is  not 
responsible,  where  it  is  organized  for  the 
benefit  of  the  road,  and  the  beneficiaries  are 
determined  by  its  officers,  and  the  surgeons 
of  the  hospital  and  the  road  are  the  same. 
Phillips  V.  St.  Louis  &  S.  F.  R.  Co.  17:  1167, 
111  S.  W.  109,  211  Mo.  419. 

8.  A  hospital  which  has  assumed  to 
treat  a  person  who  is  discovered  to  be  in- 
sane is  liable  for  his  death  in  case  it  per- 
mits him  to  leave  the  hospital  unattended 
and  without  notice  to  his  friends,  if  he  is 
killed  because  of  inability  to  care  for  him- 
self. Phillips  V.  St.  Louis  &  S.  F.  R.  Co. 
17:  1167,  111  S.  W.  109,  211  Mo.  419. 


,:  HOT  ASHES. 

Burning  of  child  by,  see  Negligence,  142, 


HOTCHPOT. 


Monopolistic  contract  between  proprietors. 
of,  see  CoNTKACTS,  544. 

Railroad  company's  power  to  guarantee  divi- 
dends on  bond  for  construction  of,  see 
Corporations,  61. 

Damages  for  breach  of  covenant  to  renew 
lease  of  property  used  for,  see  Dam- 
ages, 148,  689. 

Serving  unfit  food  to  guests,  see  Damages, 
356,  407;   Food,  20. 

Escheat  of  land  of  railroad  on  which  hotel 
is  erected,  see  Escheat,  8. 

Homestead  in  property  used  for,  see  Home- 
stead, 14. 

Lease  by  proprietor  of  hotel  of  room  for 
restaurant  purposes,  see  Landlord  and 
Tenant,  42. 

Liability  of  lessor  of  hotel  to  guest  injured 
on  premises,  see  Ll^ndlord  and  Tenant, 
173. 

Distribution  by  chance  of  lots  purchased  in 
consideration  of  agreement  of  owner  to 
erect  hotel,  see  Lottery,  8. 

Lien  on,  see  Mechanics'  Liens,  54. 

Liability  of  partnership  conducting,  see 
Partnership,  14,  15. 

In  general,  see  Innkeepers. 


■♦»» 


See  Advancements,   4-6;    Executors   and 
Administrators,  123,  124. 


HOTEL  KEEPER. 


Insurable  interest  in  life  of  one  whom  he 
agrees  to  furnish  with  a  home  for  life, 
see  Insurance,  70. 


HOURS    OF   LABOR. 

See  Master  and  Servant,  I.  d. 

♦-•-♦^ 

HOUSE    BREAKING. 
Indictment  for,  see  Indictment,  etc.,  127. 

♦-•-♦ 

HOUSEHOLD  GOODS. 
As  baggage,  see  Carriers,  701. 


HOUSEKEEPERS. 


Validity  of  agreement  to  will  property  to, 
see  Contracts,  435. 


^•» 

HOUSE   OF   ILL  FAME. 

See  Disorderly  Housb^. 


HOTELS. 

Discrimination  in  ordinance  as  to  right  to 
maintain  billiard  or  pool  room,  see  Ac- 
tion or  Suit,  52. 

Constitutionality  of  regulations  as  to  keep- 

^,-  ing  of  billiard  or  pool  tables,  see  Con- 
stitutional Law,  243,  692. 

Statute  limiting  hours  of  labor  in,  see  Con- 
stitutional Law,  308;  Evidence,  30; 
Master  and  Servant,  93. 

Digest  1-52  L.R.A.(N.S.) 


V 


♦  ♦» 


HOUSE   OF   PROSTITUTION. 

See  Disorderly  Houses. 


HOUSE    OF    REPRESENTATIVES. 

See  Legislature. 


HOWLING— HUSBAND  AND  WIFE. 


1433 


HOWLING. 

Of  dogs  as  nuisance,  see  Nuisances,  27. 


HUCKSTERS. 


See  Peddlers. 


HUMAN    ANATOMY. 

Exhibition  of,  see  Constitutional  Law, 
417;  Courts,  158;  Municipal  Corpora- 
tions, 145. 


HUMANE    SOCIETY. 

Giving  officer  of,  lien  for  care  of  neglected 
animals,  see  Constitutional  Law,  611. 


HUNTING. 


Validity  of  statute  regulating,  see  Consti- 
tutional Law,  198. 

Jurisdiction  of  equity  to  prevent  interfer- 
ence with  hunting  privilege,  see  Equity, 
34. 

Negligence  of  hunter,  see  Evidence,  1541; 
Negligence,  42,  43. 

Right  to  hunt  over  private  waters,  see 
Fisheries,  10-12. 

Of  wild  game,  see  Game. 

Homicide  while  engaged  in,  see  Homicide, 
37;  Statutes,  218. 

Injunction  to  protect  right  to  hunt,  see  In- 
junction, 48-50, 

Trespass  by,  see  Trespass,  4. 

Contributory  negligence  of  hunter  killed  by 
companion,  see  Trial,  544. 


HUNTING  BLIND. 

Injunction    against    erection    of,    see    Nui- 
sance, 75. 


HUSBAND  AND  V^IFE. 

I.  Rights,   liabilities,   and  disahilities 
generally,   1—51. 
a.  Of  husband,   1—23. 

1.  Rights,   1,   2. 

2.  Liabilities,  3—23. 
h.  Of  wife,   24=— 43. 

1.  In  general,   24:— 29. 

2.  Power  to  contract,  30—43. 

a.  In  general,  30—40. 

b.  As  surety,   41—43. 

c.  Agency  of  husband, 
c.  Joint  liabilities,    44—51. 

Digest   1-52  L.R.A.(N.S.) 


II.  Property   rights;   transactions    be- 
tween,   52—151. 

a.  In  general,   52—58. 

b.  Estate  by  entireties,  59—69. 

c.  Coniniunity  property,  70—85. 

d.  Wife's  separate  estate  or  busi- 

ness, 86—98. 

e.  Contracts  with  or  conveyances 

to  each  other,  99—106. 

f.  Conveyances    or    mortgages    to 

third  persons,  107—113. 

1.  In  general,  107—110. 

2.  Wife's    separate   property, 

111-113. 

g.  Trusts,    114—120. 
h.  Partnership. 

i.  Antenuptial      contract,       121— 

136. 
j.  Fraud  on  marital  rights,  137— 
144. 

1.  On  husband's  rights,  137. 

2.  On     wife's     rights,     138— 

144. 
Te.  Rights  of  husband's  creditors, 
145-151. 

III.  Actions,   152-207. 

a.  By  husband,  152—163. 

b.  By  wife,   164-194. 

o.  By    both    husband    and    wife, 

195. 
d.  Between    husband    and    wife, 

196-207. 

IV.  Abandonment  of  wife,  208—214. 

Revival  of  action  against  husband  and 
wife  in  name  of  wife's  heirs  after  her 
death,  see  Abatement  and  Revival, 
34. 

Release  of  claim  growing  out  of  contract  for 
support  upon  separation,  see  Accord 
AND  Satisfaction,  22. 

As  to  adultery,  see  Adultery. 

Adverse  possession  against  married  woman, 
see  Adverse  Possession,  11,  12,  34. 

Right  of  alien  wife  of  alien  to  naturaliza- 
tion, see  Aliens,  1. 

Objecting  for  first  time  on  appeal  to  fail- 
ure to  join  wife  in  action  against  hus- 
band, see  Appeal  and  Error,  735. 

Confidential  communications  between,  see 
Appeal  and  Error,  1143,  1172. 

Arson  by  burning  of  wife's  property  by 
husband,   see   Arson,  5,   6. 

Assault  to  prevent  adultery  with  wife,  see 
Assault  and  Battery,  47. 

Unauthorized  deposit  of  h,usband's  funds 
by  wife,  see  Banks,  61. 

As  to  bigamy,  see  Bigamy. 

As  to  breach  of  promise,  see  Breach  oB 
Promise. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  I.  b,  6;  I.  e. 

Requiring  wife's  consent  to  assignment  of 
wages,  see  Constitutional  Law,  458. 

Requiring  assignment  of  salary  to  be  ac- 
knowledged by  husband  or  wife  of  as- 
signor, see  Constitutional  Law,  519. 

Perjury  in  accusing  wife  of  malformation 
in  action  for  divorce,  see  Continuance 
and  Adjoxtbnment,  6. 


1434 


HUSBAND  AND  WIFE,  I.  a,  1. 


Public  policy  as  to  contract  to  induce  wife 
living  separate  from  husband  to  return 
to  him,  see  Contracts,  431. 

Injunction  by  court  of  one  state  in  which 
suit  by  alleged  widow  has  been  insti- 
tuted to  restrain  proceedings  in  an- 
other, see  Courts,  289. 

Restraint  upon  alienation  upon  grant  of 
fee  in  trust  for  married  woman,  see 
Covenants  and  Conditions,  34. 

Measure  of  djimages  for  injuries  to  mar- 
ried women,  see  Damages,  III.  i,  2. 

Mental  anguish  of  husband  as  element  of 
damages  for  breach  of  contract  by  phy- 
sician to  attend  sick  wife,  see  Dam- 
ages, 626. 

Mental  anguish  for  delay  in  delivering  tele- 
gram announcing  death  of  wife,  see 
Damages,  654,  656. 

EfTect  of  attempt  to  seduce  wife  of  owner 
on  damages  for  trespass  on  property, 
see  Damages,  728. 

Defense  to  action  for  causing  death  of  mar- 
ried woman,  see  Death,  40. 

As  to  divorce  or  separation,  see  Divorce 
and  Separation. 

Wife's  change  of  domicil  by  removing  to 
other  state  for  benefit  of  husband's 
health,  see  Domicil,  9. 

Embezzlement  by  husband,  of  wife's  funds, 
see  Embezzlement,  7,  8. 

Presumption  as  to  husband's  insurable  in- 
terest in  wife's  life,  see  Evidence,  544. 

Presumption  that  note  executed  by  man 
and  wife  was  for  husband's  debt,  see 
Evidence,  581. 

Evidence,  in  prosecution  of  husband,  of  con- 
versation between  his  wife  and  her 
brother  in  his  absence,  see  Evidence, 
1398. 

Admissibility  of  declarations  of  wife  in 
prosecution  against  husband,  see  Evi- 
dence, 1398,  3403. 

Evidence  of  good  character  of  wife  in 
prosecution  of  husband  for  murder  of 
alleged  paramour,  see  Evidence,  1575. 

Right  of  one  on  trial  for  murder  to  testify 
that  wife  confessed  criminal  intimacy 
with  deceased,  see  Evidence,  1653, 
1654. 

Effect  of  presence  of  woman  when  her  para- 
mour kills  her  husband,  see  Homicide, 
46. 

Enticing  wife  of  another  from  home  for 
illicit  purpose  as  depriving  of  right  of 
self-defense,  see  Homicide,  92. 

Murder  of  wif6,  see  Homicide,   62,  69,  72. 

Admissibility  of  letters  by  wife  to  husband 
upon  his  trial  for  killing  her,  see  Evi- 
dence, 806. 

Allegation  regarding  ownership  of  property 
of  wife,  in  indictment  for  larceny,  see 
Indictment,  etc.,  91. 

Injunction  against  business  competition  by 
wife,  see  Injunction,  10. 

Insurable  interest  of  woman  who  married 
insured  with  knowledge  that  he  had  a 
wife  living,  see  Insurance,  71. 

Insurance  on  life  of  married  woman,  see 
Insurance,  321,  343-348,  593,  594. 

Estoppel  of  wife  of  insured,  see  Insurance, 
481. 

Digest  1-52  L.R.A.(N.S.) 


^  Waiver  by  insurer  of  condition  after  re- 
ceipt of  knowledge  of  facts  from  wife 
of  insured,  see  Insurance,  497. 

Effect  of  killing  by  husband  of  wife's  para- 
mour on  right  to  collect  insurance  on 
latter's  life,  see  Insurance,   700,   701. 

Conclusiveness  as  to  other  spouse  of  judg- 
ment against  husband  or  wife,  see 
Judgment,  II.  e,  5. 

Theft  by  husband  or  wife  of  goods  of  the 
other,  see  Larceny,  21. 

Laches  of  married  woman,  see  Limitation 
OF  Actions,  29,  47. 

As  to  marriage,  see  Marriage. 

Intervention  by  wife  in  action  to  foreclose 
mortgage  given  by  husband,  see  Mort- 
gage, 16. 

Imputing  to  wife  knowledge  of  husband 
acting  as  her  agent,  see  Notice,  46. 

Husband  as  party  defendant,  see  Parties, 
184. 

Joinder  of  husband  and  wife  in  action  for 
board  and  lodging  furnished  the  lat- 
ter, see  Parties,  3  93. 

Wife  as  party  defendant  in  suit  against 
husband,  see  Parties,  183,   185-187. 

Unauthorized  operation  on  wife,  see  Phy- 
sicians AND  Surgeons,  37,  38. 

Demurrer  to  declaration  against  husband 
and  wife  for  slander,  see  Pleading, 
592. 

Conviction  of  married  woman  of  crime  of 
being  prostitute,  see  Prostitution. 

Subrogation  of  One  advancing  purchase 
money  to  vendor's  lien  as  against  pur- 
chaser's wife,  see  Subrogation,  39. 

Right  of  husband  to  enter  another's  house 
under  protest,  for  purpose  of  inducing 
wife  to  leave  house,  see  Trespass,  7. 

Comment  by  prosecuting  attorney  on  trial 
of  husband  on  latter's  failure  to  call 
wife  as  witness,  see  Trial,  73. 

Joint  and  mutual  will  by,  see  Wills,  41. 

Devise  to  "widow,"  see  Wills,  160. 

Right  of  widow  to  allow  sums  given  by 
husband's  will  for  her  maintenance  to 
accumulate  and  to  pass  them  to  her  dev- 
isee or  personal  representative,  see 
Wills,  225. 

Competency  of,  as  witnesses,  see  Witnesses, 
I.  b. 

Admissibility  of  statements  of  husband 
since  deceased  to  wife,  see  Witnesses, 
46. 

Suing  married  woman  by  her  maiden  name, 
see  Writ  and  Process,  12,  13. 

Place  for  substituted  service  on  married 
man,  see  Writ  and  Process,  24,  25. 

I.  Rights,  liabilities,  and  disahilities 
'         '  generally. 

a.  Of  hiisband. 

1.  Rights. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Property  rights,  see  infra,  II. 

1.  A  minor  validly  married  is  entitled 


HUSBAND  AND  WIFE,  I.  a,  2. 


1435 


to  his  earnings  as  against  his  father,  so 
far  as  necessary  for  the  support  of  his 
family.  Cochran  v.  Cochran,  24:  160,  89  N. 
E.  470,  196  N.  Y.  86.  (Annotated) 

2.  A  husband  who  renders  to  his  wife 
only  those  services  which  every  husband  is 
under  legal  and  moral  obligation  to  perform 
cannot  be  allowed  the  value  of  such  services 
in  an  action  brought  by  her  administrator 
to  enjoin  him  from  disposing  of  the  wife's 
property,  where  it  was  not  contemplated  by 
either  husband  or  wife  that  the  relation  of 
debtor  and  creditor  should  exist  between 
them.  Murchison  v.  Green,  11:  702,  57  S.  E. 
709,  128  Ga.  339. 

2.  Liabilities. 

(See  also    same   heading   in   Digest   L.R.A. 
1-10.) 

Criminal  liability  of  husband  for  desertion 
and  nonsupport  of  wife,  see  infra,  IV. 

On  contracts  by,  or  for  support  of,  or 
necessaries  furnished  to,  Tirife. 

3.  A  husband  is  not  individually  liable 
on  a  contract  by  his  wife  to  pay  attorneys' 
fees  in  a  proceeding  for  divorce  against  him, 
which  is  intended  to  be  her  individual  ob- 
ligation. Zent  v.  Sullivan,  13:  244,  91  Pac. 
1088,   47   Wash.    315.  (Annotated) 

4.  A  woman  has  no  implied  authority 
to  pledge  her  husband's  credit  for  attorneys' 
fees  in  a  proceeding  against  him  for  di- 
vorce, where  the  statute  authorizes  the  court 
to  make  such  orders  relative  to  the  expenses 
of  such  actions  as  will  insure  to  the  wife 
»n  eflScient  preparation  of  her  case,  and, 
in  its  discretion,  to  require  the  husband  to 
pay  all  reasonable  expenses  of  the  wife. 
Zent  V.  Sullivan,  13:  244,  91  Pac.  1088,  47 
Wash.  315. 

5.  That  a  debt  for  board  and  lodging 
furnished  a  wife  was  contracted  by  her  and 
the  credit  extended  on  the  faith  of  her 
promise  to  pay  does  not  relieve  the  husband 
of  the  liability  imposed  on  him  by  operation 
of  law,  independent  of  the  wife's  contractual 
liability  to  pay.  Edminston  v.  Smith, 
14:  871,  92  Pac.  842,  13  Idaho,  645. 

6.  The  primary  duty  rests  on  the  hus- 
band, by  reason  of  his  marital  contract  and 
operation  of  law,  to  furnish  the  wife  with 
the  necessaries  of  life,  which  include  board 
*nd  lodging;  and  a  creditor  who  furnishes 
the  wife  with  such  necessaries  may  main- 
tain his  action  against  the  husband,  al- 
though the  latter  never  contracted  the  debt, 
nor  promised  to  pay  the  bill.  Edminston  v. 
Smith,  14:  871,  92  "Pac.  842,  13  Idaho,  645. 

7.  -Every  wife  is  entitled  to  a  home  cor- 
responding with  the  circumstances  and  con- 
dition of  her  husband,  over  which  she  shall 
be  permitted  to  preside  as  mistress;  and 
she  does  not  forfeit  her  right  to  mainte- 
nance by  refusing  to  live  in  the  home  with 
and  under  the  control  of  the  husband's 
mother.  Brewer  v.  Brewer,  13:  222,  113  N. 
W.  161,  79  Neb.  726.  (Annotated) 

8.  A  tradesman  approached  by  a  wife 
to  furnish  family  necessaries  on  credit  for 
Dieest  1-52  I<.R.A.(N.S.) 


the  first  time  cannot  assume  that  she  has 
authority  to  pledge  her  husband's  credit 
therefor.  James  McCreery  &  Co.  v.  Mar- 
tin (N.  J.  Err.  &  App.)  47:  279,  87  Atl. 
433,  84  N.  J.  L.  626. 

9.  A  man  who  furnishes  his  wife,  with 
whom  he  is  living,  an  allowance  suiiicient 
to  purchase  the  necessaries  for  the  family, 
is  not  liable  for  goods  of  the  general  de- 
scription of  necessaries  furnislied  to  her  on 
credit  which  he  has  forbidden  her  to  pledge. 
James  McCreery  &  Co.  v.  Martin  (N.  J. 
Err.  &  App.)  47:  279,  87  Atl.  433,  84  N.  J. 
L.  626.  (Annotated) 

10.  A  decree  of  divorce  from  bed  and 
board,  without  alimony,  dissolves  the  re- 
lation of  husband  and  wife  so  far  as  the 
duty  of  the  former  to  maintain  the  latter 
is  concerned.  Chapman  v.  Parsons,  24:  1015, 
66  S.  E.  461,  66  W.  Va.  307. 

11.  To  render  a  man  liable  on  his  prom- 
ise to  pay  for  goods  not  necessaries  ordered 
by  his  wife,  she  must  have  purported  to  act 
as  his  agent  in  making  the  purchase,  so 
that  his  promise  is  a  ratification  of  her  act. 
Shuman  v.  Steinel,  7:  1048,  109  N.  W.  74, 
129   Wis.  422.  (Annotated) 

12.  A  set  of  Stoddard's  Lectures  is  not 
a  necessary,  which  a  woman  may  purchase 
on  the  credit  of  her  husband.  Shuman  v. 
Steinel,  7:  1048,  109  N.  W.  74,  129  Wis.  422. 

13.  Artificial  teeth  are  necessaries  which 
a  man  must  furnish  to  his  wife.  Clark  v. 
Tenneson,  33:  426,  130  N.  W.  895,  146  Wis. 
65. 

14.  A  man  is  not  entitled  to  be  reim-' 
bursed  out  of  his  wife's  estate  the  amount 
which  he  paid  for  her  physician's  and 
nurse's  bills  and  funeral  expenses.  Ket- 
terer  t.  Nelson,  37 :  754,  141  S.  W.  409,  146 
Ky.  7. 

Liability   for   vrife's    torts. 

15.  A  man  riding  with  his  wife  in  her 
automobile,  which  she  is  driving,  is  an- 
swerable for  injuries  negligently  inflicted 
by  her  upon  pedestrians.  Minor  v.  Mapes, 
39:  214,  144  S.  W.  219,  102  Ark.  351. 

16.  The  common  law  which  makes  a  hus- 
band liable  for  the  tort  of  his  wife,  com- 
mitted during  coverture  out  of  his  presence, 
and  in  which  he  in  no  manner  participates, 
is  repealed  by  implication  by  statutes  which 
give  a  married  woman  absolute  control  and 
dominion  over  her  property  and  person, 
since  the  reasons  for  that  rule  arising  rrom 
the  common-law  status  and  dependence  of 
the  wife  no  longer  exist.  Schuler  v.  Henry, 
14:  1009,  94  Pac.  360,  42  Colo.  367. 

17.  The  husband  is  not  relieved  from  lia- 
ability  for  the  torts  of  the  wife  by  the  mar- 
ried women's  laws  of  West  Virginia.  Kel- 
lar  V.  James,  14:  1003,  59  S.  E.  939,  63  W. 
Va.  139.  (Annotated) 

18.  A  man  is  responsible  for  slander 
uttered  by  his  wife,  even  though  he  was  not 
present,  and  in  no  way  participated  in  it, 
notwithstanding  the  statutes  governing  the 
rights  and  liabilities  of  married  women. 
Jackson  v.  Williams,  25:  840,  123  S.  W.  751, 
92  Ark.  486.  (Annotated) 
Agency  of  ivife. 

19.  The  rule  that,  if  a  wife  contracts,  aa- 


1436 


HUSBAND  AND  WIFE,  I.  b,  1,  2. 


suming  to  act  for  her  hu8ban<i,  so  that  the  i 
benefit  comes  to  his  hands,  and  he  does  not 
disavow  within  a  reasonable  time,  he  is 
bound  as  having  authorized  the  contract, 
does  not  apply  to  acts  of  the  wife  where 
the  benefit  comes  to  her;  but  in  such  case 
ratification  by  some  affirmative  act  is  nec- 
essary to  bind  the  husband.  Evans  v.  Craw- 
ford County  Farmers'  Mut.  F.  Ins.  Co.  g: 
485,  109  N.  W.  952,  130  Wis.  189. 

20.  A  wife,  whose  husband  absents  him- 
self, keeping  his  whereabouts  unknown,  and 
leaving  his  property  wholly  under  the  care 
of  his  wife,  is  his  agent,  by  implication  of 
law,  to  do  those  things  which  are  customari- 
ly delegated  to  wives  having  such  charge 
of  property;  but  her  authority  does  not 
extend  to  selling  and  conveying  his  real  es- 
tate, regardless  of  whether  her  act  be  ju- 
dicious or  not  from  a  business  standpoint. 
Evans  v.  Crawford  County  Farmers'  Mut.  F. 
Ins.  Co.  9:  485,  109  N.  W.  952,  130  Wis.  189. 

21.  If  a  wife  is  left  in  charge  of  insured 
property,  and  a  loss  occurs,  and  the  hus- 
band, from  the  circumstances  of  his  situa- 
tion, cannot  be  reached  so  as  to  enable  him 
to  make  the  proofs  of  loss,  the  wife  may 
do  so  by  implied  appointment.  Evans  v. 
Crawford  County  Farmers'  Mut.  F.  Ins.  Co. 
9:  485,  109  N.  W.  952,  130  Wis.  189. 

22.  A  husband  who  seeks  to  enforce  a 
claim  under  an  insurance  policy,  according 
to  proofs  of  loss  fraudulently  made  by  the 
wife  as  his  agent  ex  necessitate  in  his  ab- 
sence, does  not  thereby  participate  in  the 
fraud  of  the  agent  by  ratification,  where 
he  acts  in  good  faith.  Evans  v.  Crawford 
County  Farmers'  Mut.  F.  Ins.  Co.  9:  485, 
109  N.  W.  952,  130  Wis.  189.        (Annotated) 

23.  Fraud  committed  by  a  wife  in  mak- 
ing out  proofs  of  loss  under  an  insurance 
policy  on  the  property  of  her  husband,  in 
whose  absence  she  acted  as  his  agent  ex  ne 
cessitate,  does  not  become  that  of  the  hus- 
band unless  he  ratifies  her  act  with  knowl- 
edge of  the  facts.  Evans  v.  Crawford  County 
Farmers'  Mut.  F.  Ins.  Co.  9:  485,  109  N.  W. 
952,  130  Wis.  189.  (Annotated) 

6.  Of  wife. 

1'  1.  In  general. 

bn  '■ 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Joint  liability  with  husband,  see  infra,  I. 
c. 

Rights  of  husband's  creditors  to  his  earn- 
ings, see  infra,  146,  151. 

Husband's  consent  to  wife's  execution  of 
will,  see  Contracts,  52,  405. 

Action  against  wife  for  maintenance  of  hus- 
band, see  Divorce  and  Separation,  89. 

Estoppel  of  married  woman,  see  Estoppel, 
III.  b. 

Running    of    limitations    against    married 

•  f»     woman,  see  Limitation  of  Actions,  II. 

./•:    m. 

Necessity  of  husband's  consent  to  adoption 
of  child  by  his  wife,  see  Parent  and 
Child,  37. 

Digest  1-52  I..R.A.(N.S.) 


24.  A  wife  is  liable  for  necessaries  fur- 
nished her  upon  her  special  contract  and  on 
her  personal  responsibility  to  pay  therefor; 
and  to  that  end  she  may  be  sued  as  a  feme 
sole,  since  the  debt  is  incurred  for  her  use 
and  benefit.  Edminston  v.  Smith,  14:  871, 
92  Pac.  842,  13  Idaho,  645. 

25.  A  married  woman  is  not  personally 
liable  for  artificial  teeth  purchased  by  her 
for  her  own  use,  although  she  has  always 
attended  to  the  dental  affairs  of  herself 
and  her  children,  and  paid  the  bills,  and 
the  dentist  who  made  the  teeth  has  never 
had  any  dealings  with  the  husband,  if  there 
is  nothing  to  show  that  she  made  the  pay- 
ment out  of  her  separate  estate.  Clark  v. 
Tenneson,  33:  426,  130  N.  W.  895,  146  Wis. 
65.  (Annotated) 

26.  A  nurse  called  by  a  physician  to  at- 
tend a  sick  householder  cannot  hold  the 
latter's  wife  liable  for  injuries  caused  by 
a  defective  condition  of  the  premises.  Mc- 
Leod  v.  Rawson,  46:  547,  102  N.  E.  429,  216 
Mass.  257. 

Liability  for  torts. 

27.  A  woman  who  promises  a  nurse  at- 
tending her  sick  husband,  that  a  light  will 
be  kept  burning  during  the  night,  may  be 
liable  in  damages  in  case  of  injury  to  the 
nurse  through  the  absence  of  the  light.  Mc- 
Leod  v.  Rawson,  46:  547,  102  N.  E.  429,  215 
Mass.  257. 

28.  A  married  woman,  the  owner  of  stat- 
utory separate  real  estate  upon  which  is 
located  a  swimming  pool  and  bath  houses 
conducted  by  herself  and  husband  as  a  pub- 
lic resort,  who  is  sued  jointly  with  her  hus- 
band, is  not  liable  for  damages  in  tort  to 
a  party  injured  while  lawfully  using  the 
premises,  by  his  feet  slipping  and  falling 
upon  the  projecting  points  of  planks  alleged 
to  have  been  negligently  left  uneven.  Gra- 
ham V.  Tucker,  19:  531,  47  So.  563.  50  Fla. 
307.  (Annotated) 
Liability  for  acts  of  busband. 

See  also  infra,  44. 

29.  The  responsibility  of  a  wife  for  the 
tortious  acts  of  her  husband  cannot  be  pre- 
sumed from  the  fact  that  they  were  done  in 
her  presence.  Multer  v.  Knibbs,  9:  322,  79 
N.  E.  762,  193  Mass.  556. 

2.   Power   to   contract, 

a.  In  general.  -t 

(See  also    same   heading   in   Digest   L.R.Ai 
1-10.) 

Husband's    liability    on    contracts    by,    or 

necessaries     furnished     to,     wife,     see 

supra,  3-14. 
Void   deed   of   married   woman   as   color   of 

title,  see  Adverse  Possession,  91. 
Conflict   of    laws    as    to,    see    Conflict   of 

Laws,  I.  b,  6,  b. 
Moral  obligation  as  consideration  for  wife's 

contract,  see  Contracts,  105. 
Deed  by  married  woman   executed  because 

of    threat    to    prosecute    husband,    see 

Duress,  12,  13. 
Estoppel  of  wife,  see  Estoppel,  III.  b. 


HUSBAND  AND  WIFE,  I.  b,  2. 


1437 


Power  of  abandoned  wife  to  make  deed  to 
homestead,  see  Estoppel,  53. 

Retroactive  efl'ect  of  married  women's  acts, 
see  Statutes,  306. 

See  also  infra,  95,  99,  106. 

30.  In  Kansas,  coverture  affords  no 
ground  for  declaring  invalid  a  married 
woman's  contract,  even  although  she  pos- 
sesses no  separate  estate  or  separate  trade 
or  business.  Harrington  v.  Lowe,  4:  547,  84 
Pac.  570,  73  Kan.  1.  (Annotated) 

31.  The  statutory  power  of  a  married 
woman  to  contract  with  reference  to  her 
separate  property  is  not  an  absolute  and 
unlimited  right  of  contract  on  all  matters, 
but  is  confined  to  those  contracts  that  have 
reference  to  her  separate  estate.  Bank  of 
Commerce  v.  Bowers,  17:  676,  93  Pac.  604, 
14  Idaho,  75. 

32.  A  feme  covert  cannot  convey  her  ex- 
pectant interest  as  heir  of  her  father.  Tay- 
lor v.  Swafford,  25:  442,  123  S.  W.  350,  122 
Tenn.  303. 

33.  Insurance  eflfected  by  a  husband  and 
wife  under  a  policy  whereby,  in  considera- 
tion of  a  premium  of  which  each  paid  part, 
a  sum  of  money  was  made  payable  upon 
the  death  of  whichever  of  them  should  die 
first  to  the  survivor,  may  be  regarded  as  a 
valid  insurance  by  the  wife  of  her  own  life, 
expressed  to  be  for  the  benefit  of  the  hus- 
band contingently  on  his  surviving  her,  un- 
der a  statute  enabling  a  married  woman  to 
effect  a  policy  upon  her  own  life  for  her 
separate  use  and  providing  that  a  policy  of 
assurance  effected  by  any  woman  on  her 
own  life  and  expressed  to  be  for  the  bene- 
fit of  her  husband  shall  create  a  trust  in 
his  favor.  Per  Farwell  and  Kennedy,  L. 
JJ.,  in  Griffiths  v.  Fleming,  2  B,  R.  C.  391, 
[1909]  1  K.  B.  805.  Also  Reported  in  78 
L.  J.  K.  B.  N.  S.  567,  100  L.  T.  N.  S.  765, 
25  Times  L.  R.  377,  53  Sol.  Jo.  340. 

As  to  notes. 

Consideration  for  note  to  husband's  cred- 
itors, see  Bills  and  Notes,  22. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  59,  60. 

See  also  infra,  40,  42. 

34.  The  execution,  by  a  woman,  of  a  note 
to  take  up  one  of  her  deceased  husband, 
is  without  consideration  if  she  received  noth- 
ing from  his  estate.  Gilbert  v.  Brown,  7: 
1053,  97  S.  W.  40,  123  Ky.  703. 

35.  A  woman  cannot,  after  discoverture, 
ratify  a  note  which  was  executed  by  her 
during  coverture,  and  was  void  because  not 
for  a  debt  for  the  payment  of  which  she 
could  contract.  Gilbert  v.  BTrown,  7:  1053 
97  S.  W.  40,  :23  Ky.  703.  (Annotated)' 

36.  A  married  woman  indorsing,  in  a 
state  where  her  contract  was  of  no  effect,  a 
note  dated  and  payable  in  another  state, 
where  the  indorsement  would  be  valid,  and 
where  the  note  is  negotiated,  is  liable  there- 
on to  a  bona  fide  purchaser  for  value  with- 
out notice,  being  estopped  to  show  the  true 
facts.  Chemical  Nat.  Bank  v.  Kellogg,  2: 
299,  75  N.  E.  1103,  183  N.  Y.  92, 

( Annotated ) 
Digest  1-52  I..R.A.(N.S.) 


As  to   employment   of   another. 

37.  A  married  woman  who  has  no  sep- 
arate estate  may  employ  an  attorney  to  be- 
gin and  prosecute  or  defend  an  action  for 
divorce,  and  make  a  valid  contract  to  com- 
pensate the  attorney  for  his  service  in  such 
action.  Tyler  v.  Winder,  34:  1080,  131  N. 
W.  592,  89  Neb.  409.  (Annotated) 

38.  A  married  woman  cannot  contract 
for  the  services  of  an  architect  to  prepare 
plans  and  specifications  for  a  building  to  be 
erected  by  her.  Stephens  v.  Hicks,  36:  354, 
72  S.  E.  313,  156  N.  C.  239. 

To  pay  de'bt   of  other  person. 

39.  A  married  woman,  althou!?h  author- 
ized by  Idaho  Laws  1903,  p.  346,  §  2,  to  con- 
tract with  reference  to  her  separate  prop- 
erty to  the  same  extent  and  with  like  effect 
as  a  married  man,  cannot  bind  herself  per- 
sonally, in  view  of  the  other  provisions  of 
the  Code,  for  the  payment  of  a  debt  that  is 
not  contracted  for  her  own  use  and  benefit, 
or  for  the  use  and  benefit  of  her  separate  es- 
tate, or  in  connection  with  its  control  and 
management,  or  in  carrying  on  or  conduct- 
ing business  therewith,  unless  the  contract 
and  obligation  is  made  so  as  to  create  a 
lien  or  encumbrance  on  her  separate  estate, 
or  some  portion  of  it,  as  security  for  the 
paj'ment  of  the  debt.  Bank  of  Commerce  v. 
Bowers,  17:  676,  93  Pac.  504,  14  Idaho,  75. 

40.  A  note  by  a  married  woman,  given, 
with  the  knowledge  of  the  payee,  to  secure 
money  to  take  up  her  solvent  husband's  note 
to  him,  for  the  payment  of  which  she  sets 
apart  no  property,  but  for  which  he  pledges 
his  property  as  collateral  security,  cannot 
be  enforced,  even  after  the  husband  has  be- 
come insolvent,  under  a  statute  providing 
that  no  part  of  a  married  woman's  estate 
shall  be  subjected  to  the  payment  or  satis- 
faction of  any  liability  upon  a  contract  to 
answer  for  her  husband's  debt,  unless  such 
estate  shall  have  been  set  apart  for  that 
purpose  by  deed  of  mortgage  or  other  con- 
veyance. Third  Nat.  Bank  v.  Tierney,  18: 
81,  110  S.  W.  293,  128  Ky.  836. 

(Annotated) 

b.  As  surety. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Duress  in  inducing  wife  to  become  surety 
on  husband's  note,  see  Duress,  2. 

Eight  of  wife  as  against  husband's  heirs  to 
protection  against  loss  as  surety  of  hus- 
band, see  Principal  and  Surety,  67. 

Release  of  wife  as  surety  for  husband,  see 
Principal  and  Surety,  28,  31. 

41.  The  right  to  control  and  dispose  of 
her  separate  property,  conferred  by  Idaho 
Laws  1903,  p.  346,  upon  a  married  woman, 
together  with  all  the  rights  and  privileges 
necessary  to  its  complete  enjoyment  or  the 
power  of  disposing  of  it,  does  not  authorize 
her  to  become  a  surety  or  guarantor  for  the 
debts  of  others,  but  her  power  is  limited 
to  contracts  necessary  or  essential  to  the 
complete  enjoyment  of  her  separate  estate. 


1438 


HUSBAND  AND  WIFE,  I.  c,  II.  a. 


Bank   of   Commerce   v.   Bowers,    17:  676,   93 
Pac.  504,   14  Idaho,  75.  (Annotated) 

As   to   notes. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  60. 

42.  A  note  given  by  a  woman  as  secu- 
rity for  an  existing  debt  of  her  husband  is 
not  founded  on  a  valuable  consideration. 
Widger  v.  Baxter,  3:  436,  76  N.  E.  509,  190 
Mass.  130.  (Annotated) 
Pledge  of  property  as  collateral  se- 
curity. 

43.  A  married  woman  pledging  her  gen- 
eral estate,  with  the  consent  of  her  husband, 
as  collateral  for  the  debt  of  another,  cannot 
defeat  the  lien  on  the  ground  of  her  cover- 
ture. Daviess  County  Bank  &  T.  Co.  v. 
Wright,  17:  1122,  110  S.  W.  361,  129  Ky.  21. 

c.  Agency  of  husband. 

(See  also  same  heading  in  Digest  L.R.A. 
1-tO.) 

Evidence  to  establish  husWnd's  authority 
to  sign  checks  for  wife,  see  Evibence, 
3520, 

Sufficiency  of  evidence  to  show  that  hus- 
band was  acting  for  wife  as  undisclosed 
principal,  see  Evidence,  2248. 

Wife's  ratification  of  husband's  acts  in  re- 
lation to  her  property,  see  Principal 
AND  Agent,  91. 

See  also  Pbincipal  and  Agent,  2. 

c.  Joint  liabilities. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Husband's  liability  for  support  of  or  nec- 
essaries furnished  to  wife,  see  supra, 
3-14. 

Statute  of  other  state  making  wife  liable 
with  husband  for  family  expenses,  see 

'      Conflict  of  Laws,  133. 

44.  A  wife  is  not  jointly  liable  with  her 
husband  for  a  slander  or  other  tort  perpe- 
trated by  him,  in  which  she  did  not  actually 
participate;  nor  can  she  be  made  liable  by 
her  mere  prior  or  subsequent  consent  to  or 
approval  of  a  tortious  act  of  the  husband, 
or  by  her  command  or  direction  for  its  com- 
mission. Kellar  v.  James,  14:  1003,  59  S.  E. 
939,  63  W.  Va.   139. 

45.  The  wife  is  not  liable  as  for  a 
family  expense  for  beer  furnislied  upon  her 
husband's  order,  although  it  is  used  at  the 
family  table.  O'Neil  v.  Cardina,  44:  1175, 
140  N.  W.  196,  159  Iowa,  78. 

46.  A  wife  is  not  made  personally  liable 
for  her  husband's  board  by  a  statute  making 
the  family  expenses  a  charge  upon  her  prop- 
erty. Vose  V.  Myott,  21:  277,  120  N.  W. 
58,  141  Iowa,  506.  (Annotated) 

47.  The  husband's  giving  a  note  in  set- 
tlement of  an  account  for  family  expenses 
is  not,  under  a  statute  making  husband  and 
wife  jointly  liable  for  such  expenses,  con- 
clusive on  the  wife,  either  as  to  the  exist- 
ence of  the  debt,  or  as  to  the  amount 
Digest  1-52  I,.R.A.(N.S.) 


thereof.     McCartney  &  Sons  Co.  ▼.  Carter, 
3:  145,  105  N.  W.  339,  129  Iowa,  20. 

( Annotated ) 

48.  A  buggy  purchased  by  a  man  for  the 
use  of  his  family  is  within  a  statute  making 
the  husband  and  wife  liable  for  family  ex- 
penses, although  upon  one  occasion  he  re- 
fused to  permit  her  to  use  it,  and  they 
separated  a  short  time  after  its  purchase. 
Houck  V.  La  Junta  Hardware  Co.  32:  939, 
114  Pac.  645,  50  Colo.  228.        (Annotated) 

49.  A  man  is  not  entitled  to  charge  his 
wife  with  a  share  of  the  cost  of  up-keep  of 
property  owned  by  them  in  common,  and 
occupied  as  a  home,  which  was  incurred 
by  him  without  any  hope  or  promise  of  re- 
imbursement. Hoag  V.  Hoag,  36:  329,  96 
N.  E.  49,  210  Mass.  94. 

50.  The  liability  of  a  widow  for  medical 
services  rendered  her  husband  in  his  last 
sickness,  under  a  statute  binding  the  prop- 
erty of  both  equally  for  such  family  ex- 
penses, is  not  discharged  by  failure  to  pre- 
sent a  claim  therefor  against  the  estate  of 
the  husband  in  time  to  hold  it,  since  hus- 
band and  wife  are  made  liable  as  principals 
by  the  statute.  Vest  v.  Kramer,  14:  1032, 
114  N.  W.  886,  —  Iowa,  — .  (Annotated) 

51.  The  community  is  liable  for  personal 
injuries  inflicted  by  the  negligent  driving, 
by  the  husband,  of  an  automobile  which  is 
operated  for  hire  for  the  benefit  of  the  com- 
munity. Milne  v.  Kane,  36:  88,  116  Pac. 
659,  64  Wash.  254.  (Annotated) 

//.  Property  rights;  transactions 
between. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Widow's  allowance,  see  Appeal  and  Erbob, 
45;   Equitable  Conversion,  5. 

Sale  of  bankrupt's  property  free  from  claims 
of  wife,  see  Bankruptcy,  2. 

Law  governing  right  to  assign  insurance 
policy  in  favor  of  wife,  see  Conflict  of 
Laws,  45. 

Husband's  vested  right  to  convey  homestead, 
see  Constitutional  Law,  59. 

Fraud  as  ground  for  cancelation  of  hus- 
band's deed  of  interest  in  wife's  prop- 
erty, see  Contracts,  744. 

Husband's  estate  by  curtesy,  see  Curtesy. 

Construction  of  grant  to  husband  and  wife, 
see  Deeds,  74,  80. 

Right  to  inherit,  see  Descent  and  Distbi- 
bution,  J.  e. 

Right  of  husband  murdering  wife  to  inherit 
from  her,  see  Descent  and  Distribu- 
tion, 9a-10. 

Effect  of  Married  Women's  Property  Act 
upon  right  of  mother  to  participate 
with  father  in  distribution  of  person- 
alty of  intestate  child,  see  Descent  and 
Distribution,  5. 

Alimony,  see  Divorce  and  Separation,  V. 

Effect  of  divorce  on  property  rights  gener- 
ally, see  Divorce  and  Separation,  VI. 

Wife's  right  of  dower,  see  Dower. 


HUSBAND  AND  WIFE,  II.  a. 


1439 


Election  of  husband  to  waive  distributive 
rights  in  wife's  property,  see  Election. 

Effect  of  wife's  claiming  only  distributive 
share  in  husband's  property,  on  her 
rights  under  deed  thereto  from  her  hus- 
band, which  he  destroyed,  see  Election 
OF  Remeujies,  26. 

Jurisdiction  of  equity  of  suit  by  alleged 
widow  to  partition  lands  owned  by  hus- 
band at  his  death,  see  Equity,  36. 

Estoppel  of  wife  as  to,  see  Estoppel,  III.  b, 
147,  265. 

Estoppel  of  stranger  to  assert  title  to 
property  as  against  wife,  see  Estoppel, 
138. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,    599,   608-611. 

Evidence  as  to  whether  personal  property 
belonged  to  husband  or  wife,  see  Evi- 
dence, 1993. 

Evidence  as  to  intent  in  placing  title  to 
real  estate  in  wife's  name,  see  Evi- 
dence, 976,  1921. 

Gift  to  wife,  see  Evidence,  599;  Gift,  4,  10, 
21,  22. 

Exemption  of  homestead  purchased  with 
pension  money  and  conveyed  to  wife, 
from  liability  for  claim  against  her,  see 
Exemptions,  8. 

Injunction  against  alienation  or  encum- 
brances of  property  in  suit  for  mainte- 
nance, see  Injunction,  94. 

Right  in  homestead,  see  Homestead. 

Insurable  interest  of  husband  in  wife's  prop- 
erty, see  Insurance,  55. 

Insurance  by  husband  as  sole  owner  of 
homestead  title  to  which  is  in  wife,  see 
Insurance,  210. 

Wife's  rights  in  insurance  on  husband's  life, 
see  Insurance,  VI.  d,  2,  b. 

Interest  on  annuity  from  husband  to  wife, 
see  Interest,  30. 

Right  of  husband  as  tenant  at  will  of  wife's 
property  to  maintain  trespass  against 
one  entering  and  removing  crop  under 
wife's  authority,  see  Landlord  and 
Tenant,  214. 

Conclusiveness  of  decree  as  to  amount  to 
which  widow  is  entitled  under  hus- 
band's will,  see  Judgment,  184. 

Husband's  right  to  set  aside  as  fraudulent 
deed  of  his  interest  in  wife's  property, 
see  Limitation  of  Actions,  30. 

Effect  of  invalid  marriage  on  property 
rights,  see  Marriage,  9. 

Right  to  partition  of  homestead,  see  Par- 
tition,  13,   14. 

Action  by  administrator  of  wife  to  enjoin 
husband  from  disposing  of  wife's  prop- 
erty, see  Pleading,  21. 

Subjecting  wife's  interests  to  complainant's 
demands  in  suit  to  rescind  purchase 
..,,    of  land,  see  Pleading,  72. 

Duty  of  husband  or  wife  to  pay  taxes  on 
property  of  other  spouse,  see  Taxes, 
243,  255. 

Estoppel  of  wife  taking  conveyance  from 
spendthrift  husband  to  set  up  usury  in 
debt  secured  by  mortgage  executed  by 
him,  see  Usury,  34. 

Digest   1-52  I..R.A.(N.S.) 


Failure  of  husband  of  grantor  of  land  who 
signs  deed  to  attempt  therein  to  con- 
vey his  interest,  see  Vendor  and  Pur- 
chaser, 43. 

Revocation  of  will  by  settlement  of  property 
rights  in  anticipation  of  divorce,  see 
Wills,  58. 

Rights  of  husband  under  wife's  will,  see 
Wills,  206. 

Widow's  election  between  dower  and  rights 
under  will,  see  Wills,  III.  i. 

Competency  as  witnesses  of  husband  claim- 
ing property  as  successor  of  deceased 
wife,  see  Witnesses,  27. 

52.  A  man  who  contracted  marriage  in 
good  faith  and  lived  with  the  woman  as  his 
lawful  wife  until  her  death,  after  which  tlie 
marriage  was  declared  void,  cannot  be  treat- 
ed as  a  purchaser  for  value  of  the  land  be- 
longing to  her,  in  an  action  brought  by  her 
administrator;  nor  is  he  entitled  to  the 
value  of  improvements  made  thereon  during 
her  lifetime,  when  nothing  else  was  con- 
templated between  the  parties  than  that 
each  should  have  the  rights  that  would  flow 
from  the  relation  of  husband  and  wife. 
Murchison  v.  Green,  ii:  702,  57  S.  E.  709, 
128  Ga.  339. 

53.  The  common-law  rule  that  suitable 
ornaments  and  wearing  apparel  purchased 
for  a  married  woman  by  her  husband  remain 
his  personal  property,  which  he  may  dis- 
pose of  during  his  life,  was  not  abrogated 
in  New  Jersey  bv  the  married  woman's  act 

(N.  J.  Gen.  Stat.  p.  2012)  or  by  any  other 
statutory  provision,  and  remains  in  force. 
Farrow  v.  Farrow  (N.  J.  Err.  &  App.) 
11:  389,  65  Atl.  1009,  72  N.  J.  Eq.  421. 

54.  Title  to  real  estate  purchased  by  a 
man  and  by  his  direction  deeded  to  his  wife 
passes  to  her  by  delivery  of  the  deed  to,  and 
its  retention  by,  him,  where  the  statute  pro- 
vides that,  when  a  grant  for  a  valuable  con- 
sideration has  been  made  to  one  person  and 
the  consideration  thereof  shall  be  paid  by 
another,  no  use  or  trust  shall  result  in  favor 
of  the  person  by  whom  such  payment  has 
been  made.  Wipfler  v.  Wipfler,  16:  941,  116 
N.  W.  544,  153  Mich.  18. 

55.  A  woman  may,  in  case  her  prop 
erty  covered  by  insurance  is  destroyed  by 
fire  and  a  check  for  the  insurance  is  deliv- 
ered to  her  husband  payable  to  the  order 
of  both,  affirm  her  husband's  receipt  of  the 
check  so  as  to  vest  title  thereto  in  herself 
and  enable  her  to  avail  herself  of  the  benefit 
of  it.  Kaufman  v.  State  Sav.  Bank,  18: 
630,  114  N.  W.  863,  151  Mich.  65. 

56.  A  man  is  not  entitled  to  reim- 
bursement from  his  wife's  estate  of  money 
expended  by  him  in  the  improvement  of  her 
real  estate.  Ketterer  v.  Nelson,  37:  754,  141 
S.  W.  409,  146  Ky.  7. 

Transactions  before  marriage. 

57.  A  man  who  conveys  his  property  to 
a  woman  in  consideration  of  her  marrying 
him,  which  she  subsequently  does,  cannot 
reclaim  the  property  upon  a  subsequent  es- 
trangement of  the  parties,  although  he 
claims  that  a  part  of  the  consideration  was 
her  promise  to  be  a  kind  and  dutiful  wife, 


1440 


HUSBAND  AND  WIFE,  II.  b,  e. 


and  use  the  property  for  their  joint  benefit, 
and  support  him  in  his  old  age.  Jackson  v. 
Jackson,  6:  785,  78  N.  E.  19,  222  111.  46. 

( Annotated ) 
58.  Notes  made  by  a  man  to  his  intended 
wife  as  security  for  a  loan  may  be  enforced 
against  his  estate,  notwithstanding  their 
continued  validity  is  not  recognized  by  pay- 
ment of  interest  after  the  marriage.  Mac- 
Keown  v.  Lacey,  21:  683,  86  N.  E.  799,  200 
Mass.   437.  (Annotated) 

ft.  Estate  by  entireties. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Adverse  possession  by  one  tenant  by  entire- 
ty, see  Adverse  Possession,  27. 

Estate  by,  as  assets  of  bankrupt  husband, 
see  Bankruptcy,  40. 

Quitclaim  deed  by  wife  of  land  held  by  en- 
tireties, see  Cloud  on  Title,  29. 

Effect  of  divorce  on,  see  Divorce  and  Sepa- 
ration, 137. 

As  joint  tenants,  see  Cotenancy,  1,  16. 

Estoppel  of  woman  giving  quitclaim  deed  of 
land  held  by  entireties  to  claim  title 
after  husband's  death,  see  Estoppel, 
32. 

Lien  of  judgment  upon,  see  Judgment,  270, 
271. 

Right  of  wife  holding  land  by  entireties  to 
partition  of  trees  cut  by  husband,  see 
Partition,  16. 

See  also  infra,  107. 


59.  The  right  of  possession  of  husband 
and  wife  existing  by  virtue  of  an  estate  by 
the  entireties,  as  modified  by  the  married 
woman's  act,  amounts  in  its  essentfal  fea- 
tures to  a  tenancy  in  common  for  the  joint 
lives,  with  remainder  to  the  survivor. 
Schulz  V.  Ziegler  (N.  J.  Err.  &  App.)  42: 
98,  83  Atl.  968,  80  N.  J.  Eq.  199. 

60.  An  estate  by  entireties  is  not  de- 
stroyed by  implication,  by  a  statute  giving 
married  women  the  same  power  to  acquire, 
own,  and  dispose  of  property  as  is  possessed 
by  unmarried  persons.  Re  Meyer,  36:  205, 
81   Atl.   145,  232  Pa.  89. 

61.  A  woman  holding  an  interest  in  real 
property  as  tenant  by  entireties  cannot  ac- 
quire title  to  the  whole  property  by  pur- 
chasing at  a  sale  for  the  foreclosure  of  a 
municipal  lien.  Alles  v.  Lyon,  10:  463,  66 
Atl.  81,  216  Pa.  604. 

62.  The  foreclosure  of  a  municipal  lien 
upon  a  wife's  interest  in  an  estate  held  by 
entireties,  without  notice  to  the  husband, 
confers  no  title  to  his  interest.  Alles  v. 
Lyon,  10:  463,  66  Atl.  81,  216  Pa.  604. 

63.  A  quitclaim  deed  by  a  woman  of  land 
held  by  herself  and  her  husband  by  entire- 
ties creates  no  lien  on  the  property  in  favor 
of  the  grantee.  Ernst  v.  Ernst,  51:  317,  144 
N.  W.  513,  178  Mich.  100. 

64.  A  man  cannot  convey  to  his  wife  a 
half  interest  in  his  estate  so  as  to  create 
a  tenancy  by  entireties  in  the  whole  estate, 
and  cause  his  remaining  half  to  pass  to  her 
Digest  1-52  L.R.A.(N.S.) 


rather  than  to  his  heirs,  upon  his  death, 
Pegg  V.  Pegg,  33:  166,  130  N.  W.  617,  165 
Mich.  228.  (Annotated) 

65.  A  rule  upon  a  tenant  by  entireties, 
to  bring  ejectment  against  his  cotenant  for 
the    property,    is    witiiout    effect.      Alles    v. 
Lyon,  10:  463,  66  Atl.  81,  216  Pa.  604. 
Hoixr   created   in  laud. 

66.  An  estate  by  entireties  is  not  created 
by  a  grant  to  husband  and  wife,  for  pur- 
poses of  partition,  of  an  interest  in  real 
estate  which  had  descended  to  the  wife  by 
inheritance.  Sprinkle  v.  Spainhour,  25:  167, 
62  S.  E.  910,  149  N.  C.  223.  (Annotated) 

67.  A  conveyance  to  a  man  and  wife 
jointly  of  real  estate  purchased  by  him  with 
funds  partly  his  own  and  partly  belonging 
to  his  wife's  separate  estate,  without  her 
written  authority  to  do  so,  does  not  create 
an  estate  by  entireties,  but  equity  will  pro- 
tect her  interest  in  favor  of  her  heirs.  Don- 
ovan V.  Griffith,  20:  825,  114  S.  VV.  621,  215 
Mo.  149. 

Murder  of  wife  by  husband. 

68.  A  man  holding  an  estate  by  entireties 
with  his  wife  does  not,  upon  her  death,  in- 
herit it  from  her,  within  the  meaning  of  a 
statute  which  provides  that  anyone  who 
shall  feloniously  kill  anyone  from  whom 
he  would  inherit  property  shall  forfeit  all 
right  thereto.  Beddingfield  v.  Estill,  g:  640, 
100  S.  W.  108,  118  Tenn.  39. 

69.  The  murder  by  a  man  of  his  wife, 
with  whom  he  holds  an  estate  by  entireties, 
has  no  effect  upon  his  rights  to  the  estate. 
Beddingfield  v.  Estill,  9:  640,  100  S.  W.  108, 
118  Tenn.  39. 

c.  Community  property. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Joint  liability  for  improvements  on,  see 
supra,  49.  * 

Conveyance  of,  see  infra,  109,  110. 

Review  by  Federal  supreme  court  of  local 
law  as  to,  see  Appeal  aito  Error,  62, 
63. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,   109,  110. 

Vested  rights  in,  see  Constitutional  Law, 
56, 

Effect  of  divorce  on,  see  Divorce  and  Sepa- 
ration, 136. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  608,  609. 

Burden  of  proving  that  purchaser  from 
husband  had  notice  of  wife's  equity, 
see  Evidence,  194. 

Sufficiency  of  evidence  of  community  na- 
ture of  property,  see  Evidence,  2180. 

As  to  homestead,  see  Homestead. 

Effect  of  judgment  annulling  marriage  on 
rights  in,  see  Judgment,  175;  Mab- 
biagh:,  31. 

Notice  to  purchaser  of  property  from  one 
representing  himself  to  be  a  single  man, 
of  wife's  interest  therein,  see  Notice,  5. 

70.  Separate  property  is  not  impressed 
with  a  trust  in  favor  of  the  community  by 


HUSBAND  AND  WIFE,  II.  c. 


1441 


a,  statutory  provision  that  all  the  rents, 
profits,  interest,  or  proceeds  of  separate 
property,  accruing  during  marriage,  shall 
be  cominoTi  property,  where  the  statute  also 
provides  that  the  spouse  having  separate 
property,  shall  have  sole  control  of  it,  and 
shall  be  liable  for  his  or  her  debts,  whether 
contracted  before  or  after  marriage.  Guye 
V.  Guye,  37:  i85,  115  Pac.  731,  63  Wash. 
340. 

71.  The  existence  at  the  time  of  mar- 
riage of  a  statute  providing  that  the  rents, 
profits,  interest,  or  proceeds  of  separate 
property,  accruing  during  marriage,  shall 
be  common  property,  does  not  prevent  the 
legislature  from  restoring  all  increments  of 
separate  property  accruing  after  the  passage 
of  the  repealing  statute,  to  separate  use. 
Guye  v.  Guye,  37:  186,  115  Pac.  731,  63 
Wash.  340. 
"What  is. 
Error  in  excluding  evidence  on  question  as 

to,  see  Appeal  and  Error,  1226. 
Estoppel  of  woman  suing  for  partition  of 
land  belonging  to  her  divorced  husband 
to  set  up  admissions  by  him  that  it  was 
community  property,  see  Estoppel,  106. 
Presumptions   and   burden   of   proof   as  to, 

see  Evidence,  608,  609. 
Opinion  evidence  as  to  character  of  property, 

see  Evidence,  1194. 
Evidence  of  admissions  against  interest  by 

wife,  see  Evidence,  1232. 
Inconsistency  of  evidence  as  to,  see  Evi- 
dence, 2181. 
72.  Coal  and  mining  claims  acquired 
from  the  government  during  marriage  are 
separate,  and  not  community  property. 
Guye  V.  Guye,  37:  186,  115  Pac.  731,  63 
Wash.  .340. 

73.  Government  land  secured  by  home- 
stead entry  by  a  man  who  was  unmarried 
when  his  entry  was  made  is  separate  prop- 
erty, although  he  married  before  making 
final  proof  and  securing  his  patent.  Teynor 
V.  Heible,  46:  1033,  133  Pac.  1,  74  Wash.  222, 

(Annotated) 

74.  A  homestead  donation  entered  by  a 
man  and  wife,  the  title  to  which  is  finally 
secured  by  his  performance  of  the  legal  re- 
quirements, is  the  community  estate  of  such 
persons,  although  before  expiration  of  the 
time  required  for  perfecting  the  title  the 
wife  dies  and  the  man  remarries.  Creamer 
V.  Briscoe,  17:  154,  109  S.  W.  911,  101  Tex. 
490.  (Annotated) 

75.  That  a  deed  for  real  estate  is  not  ex- 
ecuted to  a  man  until  after  his  marriage 
does  not  make  the  land  community  property 
if  he  had  contracted  for,  taken  possession  of, 
improved,  and  paid  a  portion  of  the  pur- 
chase money  for  it  prior  to  the  marriage. 
Guye  V.  Guye,  37:  186,  115  Pac.  731,  63 
Wash.  340. 

76.  The  fact  that  the  title  to  the  land 
owned  by  a  man  at  the  time  of  his  mar- 
riage was  not  perfected  by  a  conveyance 
from  tlie  source  of  paramount  title  until 
after  that  event  does  not  destroy  its  charac- 
ter as  separate  estate.  Re  Pepper,  31: 
1092,  112  Pac.  62,  158  Cal.  619. 

77.  The  profits  secured  by  a  man  in  con- 
Digest   1-52  Ii.R.A.(N.S.) 


ducting  a  nursery  on  land  forming  part  of 
his  separate  estate  are  his  separate  prop- 
erty under  a  statute  providing  that  all 
property  owned  by  him  at  the  time  of  his 
marriage,  together  with  the  issues  and 
profits  thereof,  is  his  separate  estate.  Re 
Pepper,  31:  1092,  112  Pac.  62,  158  Cal.  619. 

(Annotated) 

78.  A  divorced  woman  cannot  demand 
partition  of  property  on  the  theory  that  it 
belonged  to  the  community,  where,  while  it 
belonged  to  a  third  person,  she  and  her  hus- 
band had  entered  upon  it  without  right, 
and  made  improvements,  and  negotiated  for 
th«  title  without  success,  which  negotia- 
tions had  terminated  before  the  divorce  pro- 
ceedings were  begun,  although  after  the  di- 
vorce the  husband,  without  abandoning  pos- 
session, had  secured  the  title  in  his  own 
right  by  paying  the  value  of  the  property 
without  the  improvements.  Wingard  v. 
Wingard,  25:  453,  105  Pac.  834,  56  Wash. 
389. 

79.  A  woman  suing  for  partition  of  lands 
belonging  to  her  divorced  husband,  who  has 
established  no  equity  in  herself,  is  not  en- 
titled to  the  benefit  of  a  stipulation  in  an 
ejectment  suit  brought  by  a  former  owner 
to  recover  possession  of  the  property,  to  the 
effect  that  such  owner  had  no  interest,  made 
after  settlement,  in  aid  of  a  deed  which  he 
delivered  to  the  husband,  as  tending  to  show 
that  the  husband's  interest  originated  dur- 
ing the  marriage,  and  therefore  that  the 
property  belonged  to  the  community.  Win- 
gard V.  Wingard,  25:  453,  105  Pac.  834,  56 
Wash.  389. 

80.  A  deserted  wife  cannot  claim  com- 
munity rights  in  property  bought  and  sold 
by  her  husband  in  another  state,  under  the 
solemn  assurance  that  he  was  a  single 
man,  where  there  is  nothing  on  the  records 
or  in  the  circumstances  to  charge  the  gran- 
tees with  notice  of  any  community  rights 
in  the  property.  Daly  v.  Rizzutto,  29:  467, 
109  Pac.  276,  59  Wash.  62.  (Annotated) 

81.  A  homestead  settler  who,  after  the 
death  of  his  wife  pending  the  homestead 
period,  commutes  the  homestead  entry,  and, 
upon  paying  cash  for  the  land  at  the  gov- 
ernment price,  receives  a  patent  therefor, 
acquires  the  absolute  title  free  from  any 
homestead  interest  under  the  laws  of  the 
state,  which  might  pass  by  the  will  of  the 
deceased  wife.  Cunningham  v.  Krutz,  7: 
967,  83  Pac.  109,  41  Wash.  190.   (Annotated) 

82.  The  funds  for  paying  taxes  on  separ- 
ate property  cannot  be  presumed  to  have 
belonged  to  the  community,  for  the  purpose 
of  impressing  the  property  with  a  commu- 
nity interest,  where  the  owner  of  the  prop- 
erty had  a  separate  source  of  income.  Guye 
V.  Guye,  37:  186,  115  Pac.  731,  63  Wash.  340. 

83.  A  statutory  declaration  that  prop- 
erty acquired  during  marriage  shall  be  com- 
munity does  not  make  the  natural  increase 
in  the  value  of  separate  real  estate  com- 
munity, where  the  statute  also  declares  that 
the  owner  of  separate  property  shall  be  en- 
titled to  the  rents,  issues,  and  profits  there- 
of. Guye  V.  Guye,  37:  186,  115  Pac.  731,  63 
Wash.  340. 

91 


144? 


HUSBAND  AND  WIFE,  II.  d. 


Ijiable  for  'what  debts. 

84.  Where  by  statute  the  earnings  of  a 
married  man  become  community  property, 
the  community  cannot  escape  liability  for 
secret  profits  made  by  a  broker  who  has  un- 
dertaken to  purchase  property  for  his  prin- 
cipal, on  the  theory  that,  arising  from  his 
fraud,  they  are  his  separate  obligation.  Mc- 
Gregor V.  Johnson,  27:  1022,  107  Pac.  1049, 
58  Wash.  78.  (Annotated) 
Surrivor's  rights  as  to. 

Liability  of,  to  succession  tax,  see-  Taxes, 

314-316. 
Subj,ecting  rights  of  survivor  to  inheritance 

tax,  see  Constitutional  Law,  774, 
See  also  supra,  81. 

85.  Under  a  statutory  provision  that 
upon  the  death  of  either  husband  or  wife 
one  half  of  the  community  property  shall 
go  to  the  survivor,  subject  to  the  com- 
munity debts,  such  survivor  takes  his  or 
her  half  of  the  community  property,  not  by 
succession,  descent,  or  inheritance,  but  as 
survivor  of  the  marital  community  or  part- 
nership. Kohny  v.  Dunbar,  39:  1107,  121 
Pac.  544,  21  Idaho,  258. 

d.   Wife's  separate  estate  or  husiness. 

Conveyance  of,  to  husband,  see  infra,  102, 
103. 

Conveyance  of,  to  third  person,  see  infra, 
II.  f,  2. 

Rights  of  husband's  creditors  to  his  earn- 
ings, see  infra,  146,  151. 

Wife's  claim  against  bankrupt  husband's  es- 
tate, see  Bankruptcy,  126. 

Federal  court  following  state  decision  as  to 
see  CouETS,  320. 

Estoppel  as  to,  see  Estoppel,  68. 

Presumption  that  real  estate  is  wife's  sep- 
arate property,  see  Evidence,  610. 

Presumption  of  loan  from,  see  Evidence, 
611. 

Right  of  husband  to  change  beneficiary  of 
policy  payable  to  his  wife,  see  Insub- 
ance,  469-472,  475-477. 

Mechanics'  lien  on  wife's  property,  see  Me- 
chanics' Liens,  10,  11. 

Sufficiency  of  complaint  in  action  to  enforce 
lien  on,  see  Pleading,  269. 

Necessity  for  election  between  separate 
property  and  rights  under  will,  see 
Wills,  355,  356. 

See  also  supra,  67,  70,  71,  82,  83;  infra,  101. 

86.  Equity  treats  personal  estate  vested 
in  a  married  woman  in  accordance  with 
statutory  provisions  permitting  her  to  re- 
ceive and  hold  such  estate  for  all  substantial 
purposes  the  same  as  an  estate  vested  for 
separate  uses  according  to  equity  rules,  and 
will  protect  it  substantially  to  the  same  ex- 
tent and  in  the  same  manner  as  it  would  the 
latter.  James  v.  Gray,  i:  321,  131  Fed.  401, 
65  C.  C.  A.  385. 

"What  constitutes. 
See  also  supra,  72. 

87.  The  mere  placing  by  a  man  of  the 
title  to  real  estate  in  his  wife's  name  does 
not  vest  the  property  in  her,  in  the  absence 
of  an  intention  to  make  her  a  gift  of  the 
Digest   1-52  I<.R.A.(N.S.) 


property.     Fulkerson  v.  Stiles,  26:  181,  105 
Pac.  966,  156  Cal.  703. 

88.  The  proceeds  of  an  endowment  in- 
surance policy  taken  out  by  a  husband  in 
favor  of  his  wife  belong  to  the  wife  as  her 
separate  property,  even  though  the  policy 
is  paid  within  the  lifetime  of  the  husband. 
Re  Desforges,  52:  689,  64  So.  978,  135  La. 
49. 

89.  Insurance  money  collected  by  a 
widow  upon  the  life  of  her  deceased  hus- 
band becomes  her  separate  estate  upon  her 
remarriage,  and  she  may  will  it  free  from 
the  claims  of  her  husband.  Hughey  v.  Wer- 
ner, 37    582,  140  S.  W.  1058,  124  Tenn.  725. 

90.  The  proceeds  of  an  accident  insur- 
ance policy  paid  upon  his  death  to  the 
widow  of  a  member  of  a  mutual  benefit 
society  do  not,  although  she  was  designated 
as  beneficiary  during  his  lifetime,  vest  in 
her  as  separate  estate,  so  as  to  be  subject 
to  obligations  with  which  she  has  charged 
such  estate.  Littleton  v.  Sain,  41:  11 18,  150 
S.  W.  423,  126  Tenn.  561. 

91.  Money  raised  on  a  joint  note  of  hus- 
band and  wife  for  her  benefit,  secured  by 
mortgage  on  her  separate  estate,  is  her  sep- 
arate property.  Sparks  v.  Tavlor.  6:  381, 
90  S.  W.  485,  99  Tex.  411. 

92.  Wearing  apparel  purchased  by  a 
married  woman  capable  of  acquiring  and 
holding  separate  property,  for  her  per- 
sonal use,  with  money  supplied  for  the  pur- 
pose by  her  husband,  is  prima  facie  her 
separate  property,  and,  in  the  absence  of 
evidence  to  rebut  this  presumption,  or  to 
limit  or  qualify  her  possessory  title,  cannot 
be  claimed  by  the  husband  as  against  an 
execution  creditor  of  the  wife.  Masson, 
Templier  &  Co.  v.  DeFries,  4  B.  R.  C.  601, 
[1909]  2  K.  B.  831.  Also  Reported  in  101 
L.  T.  N.  S.  476,  25  Times  L.  R.  784,  53  Sol. 
Jo.  744.  (Annotated) 

93.  Observations  on  paraphernalia,  see 
Masson,  Templier,  &  Co.  v.  De  Fries,  4 
B.  R.  C.  601,  [1909]  2  K.  B.  831.  Also 
Reported  in  101  L.  T.  N.  S.  476,  25  Times 
L.  R.  784,  53  Sol.  Jo.  744. 

Rights  of  husband  as  to. 

Inheritance  by  husband  from  wife,  see 
Descent  and  Distribution,  I.  e. 

Wife's  ratification  of  husband's  acts  in  re- 
lation to  her  property,  see  Pkincipal 
and  Agent,  91. 

94.  In  a  proceeding  by  heirs  of  a  wife 
for  partition  of  real  estate  purchased  wholly 
or  partly  with  funds  from  her  separate  es- 
tate and  standing  in  the  name  of  her  hus- 
band or  in  their  joint  names  at  the  time  of 
her  death,  he  is  not  chargeable  for  rents  ac- 
cruing on  the  property  before  her  death, 
whether  it  was  occupied  by  him  or  rented 
to  others,  where  the  parties  were  living 
together  and  there  is  nothing  to  show  that 
both  did  not  enjoy  the  benefits  and  products 
of  the  land.  Donovan  v.  Griffith,  20:  825, 
114  S.  W.  621,  215  Mo.  149. 

Liability   for   wife's   debts. 
See  also  supra,  90. 

95.  Under  constitutional  and  statutory 
provisions  confirming  the  real  property  of  a 
married  woman  to  her  as  if  unmarried,  and 


HUSBAND  AND  WIFE,  II.  e. 


1443 


permitting  her  to  charge  it  with  her  hus- 
band's consent,  her  real  estate  is  bound  by 
her  contract  for  its  improvement,  when  its 
execution  is  attended  with  all  the  formali- 
ties necessary  to  convey  the  real  estate  of 
a  married  woman,  and  is  assented  to  by  her 
husband,  although  the  intention  to  charge 
it  is  not  expressed.  Ball  v.  Paquin,  3:  307, 
52  S.  E.  410,  140  X.  C.  83.  (Annotated) 

96.  A  statute  making  decedents'  estates 
generally  liable  for  funeral  expenses  applies 
to  estates  of  married  women  leaving  sep- 
arate property  which  passes  into  the  hands 
of  their  personal  representatives  for  admin- 
istration. Schneider  v.  Bieier,  6:  917,  109 
N.  W.  99,  129  Wis.  446.  (Annotated) 

97.  That  the  material  and  labor  for  the 
funeral  of  a  married  woman  were  ordered 
by  her  husband  does  not  relieve  her  separate 
estate  om  liability  therefor  if  they  were 
rendered  solely  upon  the  credit  of  it. 
Schneider  v.  Breier,  6:  917,  109  N.  W.  99,  129 
Wis.  446. 

98.  Statutes  relieving  a  married  woman 
from  liability  for  the  debts  of  her  husband 
do  not  absolve  her  estate  from  liability  for 
he  •  funeral  expenses,  which  are  primarily 
a  charge  against  her  estate.  Schneider  v. 
Breier,  6:  917,  109  N.  W.  99,  129  Wis.  446. 

e.  Contracts  tiyitU,  or  conveyances  to, 
each  other. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Antenuptial  contracts,  see  infra,  II.  i. 

Agreement  not  to  apply  for  divorce,  as  sus- 
taining postnuptial  settlement,  see 
Bankruptcy,  58. 

Promise  by  husband  to  pay  wife  for  services, 
see  CoKTRACTS,  109. 

Agreement  for  separation,  see  Divorce  and 
Separation,  VIII. 

Duress  in  inducing  wife  to  become  surety 
on  husband's  note,  see  Duress. 

Parol  evidence  to  contradict  apparent  pur- 
pose of  contract  to  effect  renunciation 
of  marital  rights,  see  Evidence,  955. 

Gift  to  wife,  see  Gift,  4,  10,  21,  22. 

Failure  to  record  transfer  from  wife  to 
husband  as  affecting  his  "sole  and  un- 
conditional ownership"  within  meaning 
of  insurance  policy,  see  Insurance, 
211. 

Effect  of  agreement  between  husband  and 
wife  to  prevent  change  of  beneficiary 
in  policy  on  his  life,  see  Insurance, 
469,  470. 

Effect  of  judgment  against  husband  on  lia- 
bility of  wife  as  his  surety,  see  Judg- 
ment, 255. 

Specific  performance  of  agreement  to  exe- 
cute reciprocal  wills,  see  Specific  Per- 
formance, 79. 

See  also  supra,  57;  infra,  199. 

99.  The  recital  in  a  statute  establishing 
the  equality  of  a  married  woman  and  giving 
her  power  to  own  property,  that  she  shall 
have  the  power  to  make  contracts  with 
strangers,  does  not,  by  implication,  nega- 
Digest   1-52  I,.R.A.(N.S.) 


tive  her  power  to  contract  ^7ith  her  hus- 
band. Mathewson  v.  Mathewson,  5:  611,  63 
Atl.  285,  79  Conn.  23. 

100.  If  a  husband  convey  land  directly 
to  his  wife,  and  she,  in  turn,  attempt  to 
reconvey  it  directly  to  him  by  executing  a 
deed  to  him,  and  after  her  death  he  convey 
it  to  a  third  person,  and  then  die,  the 
equitable  title  is  in  the  heirs  of  the  wife  by 
descent,  and  the  legal  title  in  such  third 
person  or  his  successors  in  title.  Depue  v. 
Miller,  23:  775,  64  S.  E.  740,  65  W.  Va.  120. 
Contracts  as  to  nvife's  separate  estate. 
101.  A  statute  permitting  a  married  wo- 
man to  make  contracts,  except  with  her  hus- 
band, the  same  as  though  sole,  which  does 
not  relate  to  her  separate  estate,  does  not 
affect  the  equity  rule  governing  contracts 
affecting  separate  estates.  James  v.  Gray, 
1 :  321,  131  Fed.  401,  65  C.  C.  A.  385. 
Conveyance  of  vrife's  separate  estate. 
Estoppel  of  wife  to  question  validity  of 
conveyance  to  husband,  see  EsTOPPEn:>, 
68. 
Effect  of  delay  of  suit  to  set  aside  convey- 
ance, see  Limitation  of  Actions,  29. 
Question  for  jury  as  to  ratification  of  con- 
veyance, see  Tkiax,  312. 
102.  Where  the  statute  requires  a  husband 
to  join  in  his  wife's  deed,  she  cannot 
make  a  conveyance  directly  to  him,  al- 
though he  joins  in  the  deed.  Alexander 
v.  Shalala,  31 :  844,  77  Atl.  554,  228  Pa. 
297.  (Annotated) 

103.  Kesumption  of  cohabitation  with  a 
man  who  has  compelled  his  wife  to  convey 
real  estate  to  him  by  acts  of  cruelty  al- 
though evidence  of  ratification  of  the  con- 
veyance, does  not  validate  it  on  the  theory 
of  condonation.  Hoag  v.  Hoag,  36:  329,  96 
N.  E.  49,  210  Mass.  94. 
Conveyance  to  ^vife. 
Conveyance  to  wife  as  affecting  husband's 

creditors,  see  infra,  147-151. 
Consideration  for  contract  to  convey  prop- 
erty to  wife,  see  Contracts,  121. 
Duty  of  husband  to  return  consideration  for 
conveyance  to  wife  upon  obtaining  re- 
conveyance, see  Contracts,  738. 
Restoration  on  repudiation  by  wife  of  con- 
veyances to  her  by  husband  as  trustee, 
see  Contracts,  737,  738. 
Stipulation  as  to  damages  in  agreement  to 
convey  to  wife  on  discontinuance  of  di- 
vorce proceedings,  see  Damages,  222. 
Delivery  of  deed,  see  Deeds,  11. 
Conveyance  to  wife  of  real  estate  purchased 

with  her  funds,  see  Estoppel,  40. 
Estoppel  of  wife  to  claim  right  to  real  es- 
tate under  husband's  deed  to  her,  see 
Estoppel,  211. 
Effect  of  conveyance  by  husband  to  wife  to 

cut  off  curtesy,  see  Evidence,  224. 
Sufficiency   of  evidence  as  to   invalidity   of 
assignment  of  mortgage  from  husband 
to  wife,  see  Evidence,  2103. 
Action  by  wife  to  recover  gift,  see  Gift,  4. 
Implied  trust  in   favor  of  husband  taking 
deed   in   wife's  name,  see  Trusts,  41. 
Constructive  trust  under  deed  of  homestead 

to  wife,  see  Trusts,  47. 
See  also  supra,  64,  100;  infra,  200. 


1444 


HUSBAND  AND  WIFE,  II.  f,  1,  2. 


104.  A  gift  of  a  ring  by  a  solvent  man  to 
his  wife  does  not  come  within  the  opera- 
tion of  a  statute  providing  that  a  transfer 
or  conveyance  of  goods  or  chattels  between 
husband  and  wife  shall  not  be  valid  as 
against  any  third  person  unless  the  trans- 
fer or  conveyance  be  in  writing,  properly 
acknowledged  and  recorded.  Kennington  v. 
Hemingway,  39:  541,  57  So.  809,  101  Miss. 
259. 

105.  The  court  cannot  say  that  a  con- 
veyance of  one  half  of  a  man's  real  estate 
to  his  wife  as  compensation  for  past  un- 
faithfulness to  his  marriage  vows  is  exces- 
sive damages  for  the  wrong  done  her,  when 
the  parties  have  agreed  that  such  compen- 
sation is  just;  nor  that  his  agreement  to 
convey  the  other  half  in  case  of  future  mis- 
conduct provides  more  than  adequate  com- 
pensation. Darcey  v.  Darcey,  23:  886,  71 
Atl.  595,  29  R.  I.  384. 

106.  Under  statutory  authority  to  a  mar- 
ried woman  to  make  any  contract  as 
though  she  were  single,  a  husband  and  wife 
have  power  to  enter  into  a  contract  by 
which  he  undertakes  to  transfer  real  estate 
to  her  in  case  he  resumes  illicit  relations 
with  a  paramour.  Darcey  v.  Darcey,  23: 
886,  71  Atl.  595,  29  R.  I.  384. 

/.    Conveyances   or  mortgages  to   third 
persons. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Acknowledgment  by  married  woman,  see 
Acknowledgment,  III.  b. 

Reading  together  acknowledgments  of  hus- 
band and  wife,  see  Acknowxedgment, 
8. 

Upholding  void  deed  by,  as  a  parol  dedi- 
cation, see  Dedication,  8. 

Estoppel  of  husband  selling  property  in  his 
own  name  to  allege  that  title  is  in  his 
wife,  see  Estoppel,  78. 

Estoppel  of  husband  to  deny  that  his  prop- 
erty was  included  in  mortgage  of  wife's 
property,  see  Estoppel,  259. 

Redemption  by  wife  from  foreclosure  sale, 
see  Mortgages,  161-163,  166,  167,  172. 

EflFect  of  record  of  mortgage  on  wife's  prop- 
erty as  notice  that  husband's  property 
is  included  therein,  see  Records  and 
Recording  Laws,  49. 

Right  of  grantee  to  specific  performance  of 
contract  for  conveyance  not  signed. by 
wife,  see  Specific  Performance,  119. 

Subrogation  of  children  of  wife  who  mort- 
gages real  estate  as  surety  for  husband, 
to  rights  of  mortgagee  against  property 
of  husband,  see  Subrogation,  24. 

See  also  supra,  63. 

107.  By  the  husband's  conveyance  of  his 
interest  in  an  estate  by  the  entireties,  the 
grantee  becomes  tenant  in  common  with  the 
wife,  but  only  for  the  joint  lives  of  husband 
and  wife ;  and  such  grantee  may  maintain 
partition  against  the  wife,  but  the  right  is 
JDigest  1-52  Ii.R.A.(N.S.) 


limited  to  the  aforesaid  tenancy  in  com- 
mon for  the  joint  lives.  Schulz  v.  Ziegler 
(N.  J.  Err.  &  App.)  42:  98,  83  Atl.  968,  80 
N.  J.  Eq.  199.  (Annotated) 

Chattel  mortgage. 

108.  The  requirement  of  Kan.  Gen.  Stat. 
1901,  §  4255,  that  a  mortgage  of  exempt 
personal  property  must  be  executed  joint- 
ly by  husband  and  wife  when  that  relation 
exists,  has  no  application  to  a  mortgage 
given  for  a  part  of  the  purchase  price  of 
the  mortgaged  property  at  the  time  of  it« 
sale  by  the  mortgagee  to  the  mortgagor. 
Boggs  V.  O.  S.  Kelly  Mfg.  Co.  15:  461,  90 
Pac.  765,  76  Kan.  9. 

Community  property. 

Interference  with  vested  rights  by  statute 
regulating  conveyance  of,  see  Consti- 
tutional Law,  56. 

109.  That  a  woman  calls  at  a  bank  where 
her  husband  has  left  for  delivery  a  deed  of 
community  property,  and  executes  the  same, 
sufficiently  establishes  that  she  understands 
and  is  assisting  to  carry  out  an  agreement 
for  its  sale.  Manning  v.  Foster,  18:  337,  96 
Pac.  233,  49  Wash.  541. 

110.  Community  property  acquired  by  the 
husband  before  the  passage  of  N.  M.  Laws 
1901,  chap.  62,  §  6  (a),  is  subject  to  the 
provision  of  that  section  that  neither  hus- 
band nor  wife  shall  dispose  of  real  estate 
acquired  during  coverture  by  onerous  title 
unless  both  join  in  the  execution  of  the 
deed.  Arnett  v.  Reade,  36:  1040,  31  Sup.  Ct. 
Rep.  425,  220  U.  S.  311,  55  L.  ed.  477. 

2.   Wife's  separate  property. 

Acknowledgment    by    married    woman,    see 

Acknowledgment,  III.  b. 
SuflBciency     of     acknowledgment,     see     Ac- 
knowledgment, 4. 
Inclusion  of,  in  deed  of  trust  by  man  and 

wife,  see  Deeds,  44. 
Setting    aside    conveyance    of,    because    of 

duress,  see  Duress,  12,  13. 
Effect  of  duress  to  invalidate  mortgage  by 

wife  to  secure  indebtedness  of  husband, 

see  Duress,  11. 
Condition   of   right   to   rescind   conveyance, 

see  Ejectment,  24,  25. 
Estoppel   of  married   woman   by   deed,   see 

Estoppel,  32,  32a. 

Necessity  of  botli  joining  in  instrv- 
ment. 

Deed  by  wife  in  which  husband  does  not 
join  as  color  of  title,  see  Adverse  Pos- 
session, 63. 

Review  of  finding  as  to  intent  to  have  hus- 
band sign  wife's  contract  to  sell  land, 
see  Appeal  and  Error,  976. 

111.  A  married  woman  whose  husband 
does  not  refuse  to  join  in  a  deed  of  her  real 
estate  cannot  avoid  her  contract  to  make 
the  sale,  on  the  theory  that  he  has  not 
joined,  where  the  statute  gives  her  the  same 
right  to  sell  her  real  estate  as  though  she 
were  sole,  except  that  her  husband  must 
join  in  the  deed.  McCoy  v.  Niblick,  30: 
353,  77  Atl.  551,  228  Pa.  312.      (Annotated) 

112.  A  married  woman  cannot  repudiate 


HUSBAND  AND  WIFE,  II.  g— i. 


1445 


her  sale  of  real  estate  and  keep  the  pur- 
cliase  price  because  her  husband  has  not 
joined  in  the  deed,  where  the  statute  pro- 
vides that  slie  shall  have  the  same  right 
to  dispose  of  her  real  estate  as  an  unmar- 
ried person,  but  that  she  cannot  convey 
real  property  unless  her  husband  joins  in 
the  conveyance.  McCoy  v.  Niblick,  30:  355, 
70  Atl.  577,  221  Pa.  123. 

113.  An  option  to  explore  land  for  oil  and 
gas  for  a  period  of  five  years,  with  right  of 
renewal,  is  not  an  encumbrance  so  as  to  re- 
quire a  man  to  join  his  wife  in  the  granting 
thereof  upon  her  land,  under  a  statute  giv- 
ing her  control  of  her  separate  estate  with 
a  right  to  its  rents  and  profits,  but  provid- 
ing that  no  conveyance  or  encumbrance  of 
the  property  shall  be  made  unless  he  joins 
in  the  conveyance.  Kokomo  Natural  Gas  & 
Oil  Co.  V.  Matlock,  39:  675,  97  N.  E.  787,  177 
Ind.  225.  (Annotated) 

g.  Trusts. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Effect  of  continued  possession  by  grantor  to 
create  trust  for  benefit  of  wife  married 
after  conveyance,  see  Adveese  Posses- 
sion, 35. 

Evidence  of  intent  to  restore  money  bor- 
rowed from  wife,  set  Evidence,   1616. 

Assignment  of  insurance  policy  in  trust  for 
wife,  see  Insubance,  447. 

Purchase  with  wife's  money  of  real  estate 
title  to  which  is  taken  in  name  of  hus- 
band, see  Limitation  of  Actions,  28, 
29,  47,  161, 

Husband  as  constructive  trustee  for  wife, 
see  Trusts,  46,  47,  60,  62. 

Effect  of  payment  by  man  of  part  of  owelty 
money  upon  conveyance  to  wife  of  prop- 
erty for  partition  to  create  resulting 
trust  in  his  favor,  see  Tkusts,  61. 

Conveyance  of  property  placed  in  trust  for 
wife,  see  Trusts,  100. 

114.  Under  a  deed  in  trust  for  the  sole 
and  separate  use  of  a  married  woman  and 
her  heirs,  but  not  her  assigns,  she  acquires 
an  equitable  fee,  which,  upon  the  death  of 
her  husband,  becomes  an  absolute  estate, 
which  she  may  assign  at  will.  Hauser  v. 
St.  Louis,  28:  426,  170  Fed.  906,  96  C.  C.  A. 
82. 

115.  A  trustee  should  not  be  appointed 
for  the  fund  allowed  a  wife  as  alimony  upon 
the  granting  of  a  divorce,  where  none  of  the 
parties  ask  for  a  trusteeship,  and  there  is 
nothing  to  show  that  the  wife  is  incom- 
petent or  a  spendthrift,  although  it  appears 
that  the  appointment  of  a  trustee  would 
be  for  her  best  interests.  Blair  v.  Blair,  38: 
269,   121   Pac.   19,  40  Utah,  306. 

(Annotated) 

116.  A  deed  by  a  married  woman,  exe- 
cuted in  the  manner  prescribed  by  law  for 
the  conveyance  of  her  estates,  is  of  no  ef- 
fect against  a  trustee  to  whom  the  property 
was  conveyed  for  her  use  by  a  deed  provid-  | 
ing  that  it  might  be  conveyed  by  the  trustee 
Digest   1-52  L.R.A.(N.S.) 


I  joining  her  in  the  deed.     Cameron  v.  Hicks, 
I  7:  407,  53  S.  E.  728,  141  N.  C.  21. 

117.  Where  an  estate  is  conveyed  to  a 
trustee  for  the  use  of  a  married  woman  for 
life  and  to  preserve  contingent  remainders, 
the  statute,  upon  the  death  of  her  husband, 
does  not  execute  the  use  in  her  so  as  to  per- 
mit her  to  convey  the  estate.  Cameron  v. 
Hicks,  7:  407,  53  S.  E.  728,  141  N.  C.  21. 

118.  A  provision  in  a  deed  conveying  prop- 
erty to  a  trustee  for  the  use  of  a  married 
woman,  permitting  him  to  convey  upon  re- 
quest of  the  beneficiary,  she  joining  in  the 
deed,  prevents  her  conveyance  without  the 
aid  of  the  trustee.  Cameron  v.  Hicks,  7:  407, 
53  S.  E.  728,  141  N.  C.  21. 

119.  A  provision  in  a  deed  conveying  prop- 
erty to  a  trustee  for  the  use  of  a  married 
woman  during  life  with  remainder  over, 
that,  in  case  the  life  tenant  should  desire 
any  of  the  property  to  be  conveyed  in  fee 
or  otherwise,  the  trustee  should  have  power 
to  convey  joining  her  in  the  deed,  applies  to 
her  life  estate  as  well, as  to  the  fee,  so  as 
to  prevent  any  conveyance  by  her  without 
joining  the  trustee.  Cameron  v.  Hicks,  7: 
407,  53  S.  E.  728,  141  N.  C.  21. 

120.  The  death  of  the  trustee  to  whom  is 
conveyed  property  for  a  married  woman 
with  power  to  join  her  in  its  conveyance 
without  the  execution  of  the  power  destroys 
it  so  that  it  cannot  be  subsequently  exe- 
cuted. Cameron  v.  Hicks,  7:  407,  63  S.  E, 
728,  141  N.  C.  21. 

h.  Partnership. 

(See  same  heading  in  Digest  L.R.A.  1—10.) 
i.  Antenuptial  contract. 

Ejresumption  as  to,  see  Conflict  of  Laws, 
137;   Evidence,  558. 

Contract  as  within  statute  of  frauds,  see 
Contracts,  193-195,  304,  317. 

As  violating  public  policy,  see  Contracts, 
476,  477. 

Effect  of  neglect  to  object  to  probate  of  will 
on  right  to  enforce  contract  antagonis- 
tic to  will,  see  Contracts,  774. 

Effect  of,  to  bar  dower,  see  Doweb,  23,  26- 
30. 

Effect  to  prevent  change  of  beneficiary  in 
insurance  policy  on  husband's  life,  see 
Insurance,  469,  470. 

Succession  tax  on  sum  provided  for  wife  by 
ante-nuptial  agreement,  see  Taxes,  313. 

121.  Antenuptial  contracts  between  per- 
sons contemplating  matrimony,  determining 
the  prospective  rights  of  each  in  the  prop- 
erty of  both  parties  during  and  after  mar- 
riage, are  not  against  public  policy,  and  are 
enforceable.  Rieger  v.  Schaible,  17:  866,  115 
N.  W.  560,  116  N.  W.  953,  81  Neb.  33. 

122.  If  an  antenuptial  contract  is  fair  and 
reasonable  respecting  the  property  and 
property  rights  of  the  parties,  and  has  been 
fully  performed  by  the  wife  before  her 
death,  it  will  not  be  held  void  at  the  in- 
stance of  the  husband,  merely  because  one 
of  its  provisions  might  be  so  construed  as 
to  have  justified  her  in  adopting  a  course 


1446 


HUSBAND  AND  WIFE,  II.  i. 


of  conduct  before  death  that  would  render 
the  contract  inoperative  and  of  no  effect. 
Re  Appleby's  Estate,  lo:  590,  111  N.  W.  305, 
100  Minn.  408. 

123.  An  antenuptial  contract  cutting  off 
the  homestead  right  of  the  intended  hus- 
band, and  his  statutory  one-third  interest  in 
his  wife's  property,  is  not  prohibited  by 
statute  in  Minnesota,  and  is  valid.  Re 
Appleby's  Estate,  10:  590,  111  N.  W.  305, 
100  Minn.  408. 

124.  That  a  wife,  by  the  terms  of  her 
will,  set  apart  a  portion  of  her  estate  to 
secure  the  payment  to  her  husband  of  an 
annuity  provided  for  by  antenuptial  con- 
tract, instead  of  leaving  the  annuity  a  valid 
claim  against  her  entire  property,  is  not 
such  a  failure  to  carry  out  the  contract  as 
will  release  the  surviving  husband  there- 
from, where  the  will  confers  ample  ..uthor- 
ity  upon  the  court  to  protect  the  rights  of 
the  husband.  Re  Appleby's  Estate,  10:  590, 
111  N.  W.  305,  100  Minn.  408. 

125.  A  provision  in  an  antenuptial  con- 
tract, that  the  husband  would  adopt  a  child 
of  the  wife,  and  make  her  his  heir,  and. be- 
queath and  devise  all  his  property  to  her, 
does  not  prevent  his  giving,  in  good  faith, 
to  his  relatives,  before  death,  a  policy  of 
insurance  upon  his  life,  which  amounts 
only  to  a  reasonable  gift,  in  view  of  the 
property  possessed  by  him.  Dickinson  v. 
Seaman,  20:  1154,  85  N.  E.  818,  193  N.  Y. 
18.  (Annotated) 

126.  That  an  antenuptial  contract,  by  the 
terms  of  which  each  of  the  parties  thereto 
released  all  interest  in  the  property  of  the 
other,  is  insufficient  to  bar  the  wife's  life 
estate  in  the  homestead  of  the  husband, 
does  not  render  the  contract  void  in  toto. 
Rieger  v.  Schaible,  17:  866,  115  N.  W.  560, 
116  N.  W.  953,  81  Neb.  33. 

127.  A  doubtful  or  ambiguous  antenup- 
tial agreement  by  which  the  wife  surrenders 
her  claims  in  the  husband's  property,  which 
will  admit  of  more  than  one  construction, 
will  receive  that  most  favorable  to  the  wife. 
Re  Deller,  25:  751,  124  N.  W.  278,  141  Wis 
255. 

128.  The  wife  waives  her  right  to  statu- 
tory allowances  of  personal  property  and 
support  pending  the  settlement  of  the  es- 
tate, by  an  antenuptial  agreement  by  which 
she  is  to  receive  a  certain  amount  in  lieu 
of  all  right,  title,  and  interest  which  she 
wou'.d  have  by  law  in  the  estate.  Re  Deller, 
25:  751,  124  N.  W.  278,  141  Wis.  255. 

(Annotated) 

129.  A  provision  in  an  antenuptial  agree- 
ment that  the  man  will,  during  his  natural 
life  and  (the  life  of)  the  intended  wife,  pro- 
vide for  her  all  the  necessities  of  life,  and 
at  his  death  allow  her  a  certain  sum  of 
money  in  lieu  of  all  other  interest  in  his 
estate,  entitles  her  to  a  provision  for  neces- 
saries during  her  life  after  his  death.  Re 
Deller,  25:  751,  124  N.  W.  278,  141  Wis.  255. 

130.  Failure  of  a  man  to  keep  alive  the 
insurance  on  his  life  will  defeat  his  right 
to  his  wife's  property  at  her  death,  under 
an  antenuptial  agreement  to  the  effect  that 
Digest  1-52  L.R.A.(N.S.) 


each  shall  have  the  control  of  his  or  her 
own  property  during  life,  and  that  he  shall 
keep  alive  a  life  insurance  policy  the  pro- 
ceeds of  which,  together  with  her  separate 
property,  shall  be  hers  if  she  survive  him, 
and  that  her  property  shall  go  to  him  at 
her  death  him  surviving.  Becker  v.  Becker, 
26:  858,  89  N.  E.  737,  241  111.  423. 

(Annotated) 
Consideration. 

131.  An  agreement  to  marry  is  a  sufficient 
consideration  to  support  an  antenuptial 
contract  definitely  fixing  the  rights  of  the 
parties,  although  the  original  agreement  of 
marriage  was  absolute  and  was  entered  into 
some  months  preceding  the  making  and 
signing  of  the  antenuptial  contract.  Re  Ap- 
pleby's Estate,  10:  590,  111  N.  W.  305,  100 
Minn.  408. 

132.  An  antenuptial  contract  in  considera- 
ation  of  marriage  and  the  release  by  each 
party  of  all  interest  in  the  property  of  the 
other  is  based  upon  a  sufficient  considera- 
tion as  to  both  parties,  when  each  is  the 
owner  of  property  in  which  the  other  would 
acquire  an  interest  by  reason  of  the  mar- 
riage but  for  the  antenuptial  agreement, 
and  is  sufficient,  when  equitable  and  fair 
in  its  terms  and  entered  into  in  good  faith, 
to  constitute  an  equitable  bar  to  dower. 
Rieger  v.  Schaible,  17:  866,  115  N.  W.  560, 
116  N.  W.  953,  81  Neb.  33. 

133.  An  antenuptial  agreement  by  which 
the  wife  of  a  man  worth  about  $85,000  is  to 
receive  $5,000  out  of  his  estate,  in  lieu  of 
dower  and  statutory  allowances  will  not 
be  set  aside  because  of  the  inadequacy  of 
such  provision.  Re  Deller,  25:  751,  124  N. 
W.  278,  141  Wis.  255. 

To  -nrhat  property  applicable. 

134.  An  antenuptial  agreement  by  which 
a  wife  relinquishes  all  claims  and  demands 
of  whatever  manner,  sort,  or  description 
which  she  may  at  any  future  time  have 
against  her  husband's  estate,  including 
claims  for  dower,  support,  or  maintenance, 
does  not  include  the  year's  support  which 
is  allowed  her  by  law  out  of  his  estate  after 
his  death.  Re  Johnson,  37:  875,  134  N.  W. 
553,  154  Iowa,  118. 

Revocation  or  cancelation. 
Disaffirmance  by  infant  of  marriage-settle- 
ment contract,  see  Infants,  99. 
See  also  supra,  133. 

135.  An  antenuptial  agreement,  signed  by 
the  intending  wife  under  the  belief  that  an 
existing  will  of  the  intending  husband  will 
not  be  revoked  by  the  marriage,  will  not,  in 
the  absence  of  actual  fraud,  be  canceled 
merely  because  she  is  not  fully  and  correctly 
informed  as  to  her  legal  rights.  Robbing 
v.  Robbins,  9:  953,  80  N.  E.  326,  225  111. 
333.  (Annotated) 
Enforcement  of. 

Specific  performance  of,  see   Specific  Pe»- 

FOBMANCE,    61,    62,    70. 

136.  A  husband  cannot  recover  on  an  an- 
tenuptial contract  by  which  his  wife  agrees 
to  pay  him  for  her  care,  support,  and  nurs- 
ing during  their  marriage.  Ryan  v.  Dock- 
ery,   15:  ^i,   114  N.  W.  820,   134  Wis.  431. 

(Annotated) 


HUSBAND  AND  WIFE,  II.  j.  1— k. 


1447 


j.  Fraud  on  marital  rights. 
1.  On  husband's  rights. 

{See  also   same   heading   in  Digest   L.R.A. 

1-10.) 

Proper  plaintiflF  in  suit  to  recover  assets 
transferred  in  fraud  of  husband's 
rights,  see  Parties,  139. 

137.  A  woman  may,  under  the  married 
woman's  acts,  unless  restrained  by  statute, 
make  a  valid  donatio  causa  mortis  of  all 
her  personal  property,  and  thereby  deprive 
her  husband  of  any  distributive  share 
therein.  Wright  v.  Holmes,  3:  769,  62  Atl. 
507,  100  Me.  508.  (Annotated) 

2.  On  wife's  rights. 

{See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Before  marriage. 

Effect  of  continued  possession  by  grantor  to 
create  trust  for  benefit  of  wife  mar- 
ried after  conveyance,  see  Adverse  Pos- 
session, 35. 

Estoppel  to  assert  title  against  wife,  see 
Estoppel,  138. 

Evidence  to  show  fraud,  see  Evidence,  1658, 
1659. 

138.  The  fact  that  no  treaty  of  marriage 
is  pending  at  the  time  of  a  conveyance  by 
A  man  of  his  property  is  a  strong  circum- 
stance tending  to  disprove  fraud  on  the 
rights  of  the  person  subsequently  married. 
Beechley  v.  Beechley,  9:  955,  108  N.  W.  762, 
134  Iowa,  75. 

]  39.  To  set  aside  on  the  ground  of  fraud  a 
conveyance,  founded  on  a  valuable  consid- 
eration, by  a  man  in  contemplation  of  mar- 
riage, the  grantee  must  be  shown  to  have 
been  party  to  the  fraudulent  intent.  Beech- 
ley V.  Beechley,  9:  55,  108  N.  W.  762,  134 
Iowa,  75. 

140.  A  conveyance  of  property,  made  in 
contemplation  of  marriage,  with  intent  to 
deprive  the  wife  of  the  marital  rights  which 
she  would  otherwise  acquire,  is  invalid  in 
her  favor,  although  at  the  time  of  the  con- 
veyance she  was  not  selected,  and  no  nego- 
tiations looking  to  marriage  were  pending. 
Beechley  v.  Beechley,  9:  955,  108  N.  W.  762, 
134  Iowa,  75.  (Annotated) 

141.  A  woman  whose  husband  voluntarily 
conveys  his  real  estate  on  the  eve  of  mar- 
riage in  fraud  of  her  dower  rights  is  not 
entitled  to  a  decree  setting  aside  the  con- 
Teyance  absolutely,  but  only  to  one  protect- 
ing her  inchoate  dower  rights.  Deke  v. 
Huenkemeier,  48:  512,  102  N.  E.  1059,  260 
111.  131.  (Annotated) 
After  marriage. 

Burden  of  showing  fraud,  see  Evidence,  660. 

142.  A  wife  cannot  defeat  a  conveyance 
by  her  husband  of  all  his  personal  property 
when  ill,  shortly  before  death,  as  a  fraud 
Digest   1-52  i:i.R.A.(N.S.) 


I  on  her  marital  rights.    Robertson  v.  Robert- 
json,  3:  774,  40  So.  104,  147  Ala.  311. 

(Annotated) 

143.  A  wife  securing  a  decree  against  her 
husband  for  separate  maintenance  may  set 
aside  a  conveyance  which  he  had  made  of 
his  property  in  consideration  of  a  promise 
of  support  during  life,  under  a  statute  mak- 
ing void  conveyances  made  with  intent  to 
defraud  creditors  or  other  persons  of  their 
lawful  demands.  Fahey  v.  Fahey,  i8:  1147, 
96  Pac.  251,  43  Colo.  354.  (Annotated) 

144.  A  voluntary  deed  by  a  man  of  his 
personal  estate  cannot  be  set  aside  by  his 
wife,  as  a  fraud  upon  her  rights.  Hall  v. 
Hall,  21:  533,  63  S.  E.  420,  109  Va.  117. 

fc.  Rights  of  husband's  creditors. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  of  trustee  in  bankruptcy,  in  insur- 
ance on  life  of  man,  payable  to  his 
wife,  see  BANKRtrPTCY,  37,  38. 

Validity  of  post  nuptial  settlement  as 
against  husband's  trustee  in  bank- 
ruptcy, see  Bankruptcy,  58. 

Impairment  of  creditor's  constitutional 
rights  by  permitting  assignment  of  pol- 
icy to  wife  of  insured,  see  Insurance, 
449,  450. 

145.  A  married  woman  is  not,  because  of 
her  marital  relation,  to  be  postponed  to 
other  creditors  of  her  bankrupt  husband, 
where  the  statute  provides  that  a  married 
woman  shall  have  the  right  to  acquire,  hold, 
use,  and  dispose  of  property  as  if  she  were 
unmarried.  Savage  v.  Savage,  3:  923,  141 
Fed.  346,  72  C.  C.  A.  494. 

As  to  linsband's  earnings. 
See  also  infra,  151. 

146.  Land  purchased  with  money  pro- 
duced by  a  man's  industry  and  good  man- 
agement of  a  farm  belonging  to  his  wife 
is  subject  to  his  debts,  although  the  title 
to  it  is  taken  in  her  name.  Patton  v. 
Smith,  23:  1124,  114  S.  W.  315,  130  Ky.  819. 

( Annotated ) 

Conveyance  to  wife. 

Validity  of  conveyance  as  against  trustee  in 
bankruptcy,  see  Bankruptcy,  64. 

Cross-examination  of  husband  making  con- 
veyance to  wife,  see  Witnesses,  87. 

147.  The  contingent  liability  of  an  unre- 
leased  assignor  of  a  leasehold  for  rent  is 
an  existing  equity  within  the  meaning  of 
a  statute  providing  that  a  conveyance  by  a 
man  to  his  wife  shall  not  affect  existing 
equities  in  favor  of  creditors  of  the  grantor 
at  the  time  of  the  transfer.  Sallaske  v. 
Fletcher,  47:  320,  132  Pac.  648,  73  Wash. 
593..  (Annotated) 

148.  Where  a  husband  and  wife  own  two 
town  lots  equally  as  tenants  in  common  and 
reside  on  one  of  them  as  their  home,  whicli 
is  of  the  full  value  of  the  homestead  exemp- 
tion, the  undivided  one-half  interest  of  the 
husband  in  the  other  lot  will  not  be  exempt 
from  a  judgment  against  him,  and  the  trans- 
fer by  him  of  such  interest  to  his  wife  with- 


1448 


HUSBAND  AND  WIFE,  III.  a. 


out  consideration,  to  hinder   or   delay   his 
creditors,  will   be  set   aside   as   fraudulent. 
Valparaiso    State    Bank    v.    Schwartz,   42: 
1213,  138  N.  W.  757,  92  Neb.  575. 

149.  A  wife  will  acquire  a  perfect  title  to 
goods  transferred  by  dation  en  paiement  from 
her  husband  in  settlement  of  the  balance 
due  her  on  a  paraphernal  claim,  although 
the  property  so  given  be  not  paid  for,  un- 
less the  title  is  encumbered  with  the  privi- 
lege of  the  vendor  for  the  price.  Comp- 
ton  V.  Dietlein,  12:  174,  42  So.  964,  118  La. 
360. 

150.  A  wife  who  receives  a  stock  of  goods 
from  her  husband  by  dation  en  paiement, 
in  restitution  of  her  paraphernal  property 
received  and  alienated  by  him,  is  not  sub- 
ject to  the  penalty  imposed  by  La.  act  No. 
94,  p.  137,  of  1896,  upon  one  purchasing  in 
block  merchandise  unpaid  for  by  the  seller, 
without  exacting  from  him  a  written  state- 
ment, sworn  to,  and  showing  that  the  goods 
have  been  paid  for.  Compton  v.  Dietlein, 
12:  174,  42  So.  964,  118  La.  360. 

(Annotated) 
Of  husband,  rights  of  creditors  as  to,  see 
Husband  and  Wife,  151. 

151.  The  creditors  of  a  man  cannot  reach 
a  home  purchased  by  his  wife  by  means  of 
a  small  down  payment  of  her  own  money 
and  weekly  payments  of  a  small  sum  saved 
by  her  from  the  husband's  wages  of  $20  per 
week,  which  he  turned  over  to  her  for  the 
maintenance  of  the  family,  and  a  small  ad- 
ditional sum  received  from  a  boarder,  on 
the  theory  that  the  conveyance  to  her  was 
fraudulent  as  to  them.  Ford  Lumber  & 
Mfg.  Co.  V.  Curd,  43:  685,  150  S.  W.  991, 
150  Ky.  738.  (Annotated) 

III.  Actions. 

a.  By  husband. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Against  wife,  see  infra.  III.  d. 

Rights  of  damages  for  mental  anguish  be- 
cause of  mutilation  of  wife's  corpse, 
see  Damages,  630. 

Husband  as  party  defendant,  see  Pabties, 
184. 

Recovery  by  husband  against  physician  for 
breach  of  contract  to  attend  wife,  see 
Physicians  and  Surgeons,  52-54. 

Against  one  entering  upon  property  and 
attempting   to   seduce  wife,   see   Tbes- 

'■       pass,  16. 

Tot  injury  to  wife  or  loss  of  her 
services. 

Abatement  of,  by  wife's  death,  see  Abate- 
ment AND  Revival,  19. 

Admiralty  jurisdiction  of  suit  for  injury 
to  wife,  set  Admiralty,  5. 

Measure  of  damages  for,  see  Damages,  III. 
i,  2,  199,  401,  402,  507. 

Suit  by  minor  to  recover  for,  see  Infants, 
108. 

Competency  of  wife  in  action  by  husband 
for  rape  committed  on  her,  see  Wit- 
nesses, 30. 

Digest  1-52  I..R.A.(N.S.> 


152.  A  man  cannot  hold  a  carrier  liable 
to  him  for  consequential  damages  through 
injury  to  his  wife,  unless  it  is  directly  lia- 
ble to  her  for  her  injury.  Jackson  v.  Bos- 
ton Elevated  R.  Co.  51:  1152,  105  N.  E.  379, 
217  Mass.  515. 

153.  In  case  a  wife  sustains,  without 
fault  on  her  part,  personal  injuries  result- 
ing from  the  actionable  negligence  of  a 
common  carrier,  two  distinct  causes  of  ac- 
tion may  accrue:  One  to  her  for  the  direct 
injuries  to  her  person,  and  the  like;  the 
other  to  her  husband  for  the  consequential 
injiu-ies  to  him,  consisting  of  the  loss  of 
her  services  and  society,  and  of  the  expense 
to  which  he  may  have  been  put,  and  the 
like.  Mageau  v.  Great  Northern  R.  Co.  15: 
511,  115  N.  W.  651,  103  Minn.  290. 

154.  A  man  cannot  recover  for  loss  of  the 
society  or  those  personal  services  of  his  wife 
formerly  embraced  by  the  term  "consor- 
tium," through  injuries  negligently  inflict- 
ed upon  her  by  another,  where  the  statutes 
have  conferred  upon  her  a  legal  entity  of 
her  own,  and  relieved  her  of  the  obligation 
to  perform  services  which  she  formerly  owed 
him.  Marri  v.  Stamford  Street  R.  Co.  33: 
1042,  78  Atl.  582,  84  Conn.  9.     (Annotated) 

155.  A  man  may  recover  for  loss  of  serv- 
ices of  his  wife  due  to  sickness  resulting 
from  mental  distress  caused  by  the  wilful 
and  malicious  publication  concerning  her 
of  defamatory  words  actionable  per  se. 
Garrison  v.  Sun  Printing  &  Pub.  Asso.  45: 
766,  100  N.  E.  430,  207  N.  Y.  1. 

(Annotated) 

156.  A  man  may  maintain  an  action  for 
damages  for  the  rape  of  his  wife.  Hirdes 
V.  Cross,  52:  373,  146  N.  W.  646,  180  Mich. 
321.  (Annotated) 
For  wife's  property. 

157.  A  man  has  such  special  interest  in 
the  property  of  his  wife,  which  she  had  not 
obtained  from  him,  but  which  is  packed  in 
trunks  which  he  has  contracted  with  a  car- 
rier to  transport,  as  to  entitle  him  to  main- 
tain an  action  for  their  value  in  case  they 
are  lost  through  breach  of  the  contract. 
Withey  v.  Pere  Marquette  R.  Co.  i:  352,  104 
N.  W.  773,  141  Mich.  412. 

Inducing     ivife      to      leave     husband; 

alienation  of  affections;   criminal 

conversation. 
Validity  of  agreement  in  settlement  of  cause 

of  action  for  criminal  conversation,  see 
•     Contracts,  494. 
Mental  anguish  as  element  of  damages,  see 

Damages,  637. 
Mode  of  proving  marriage  in  action  for,  see 

Evidence,  2203. 
Burden  of   proof   in   action   against  father 

for,  see  Evidence,  240. 
Sufficiency   of   evidence   to   support   charge,  • 

see  Evidence,  2259. 
Question  for  jury  as  to  liability  of  father 

for,  see  Trial,  104,  623. 

158.  A  father  is  not  liable  for  causing  his 
daughter  to  separate  from  her  husband  by 
giving  her  such  advice  and  bringing  such 
persuasion  or  inducement  to  bear  upon  her 
as  he  fairly  and  honestly  considers  to  be 


HUSBAND  AND  WIFE,  III.  b. 


1449 


called  for  by  her  best  interests.     Multer  v. 
Knibbs,  9:  322,  79  N.  E.  762,  193  Mass.  556. 

(Annotated) 

159.  No  action  lies  against  a  father  for 
advising  his  daughter  to  leave  her  husband, 
unless  it  clearly  appears  that  he  acted  ma- 
liciously, without  justification,  and  from 
unworthv  motives.  Beisel  v.  Gerlach,  18: 
516,  70  Atl.  721,  221  Pa.  232. 

160.  Evidence  that  a  father  who,  upon 
his  fifteen-year-old  daughter  marrying  a 
poor  man  at  a  time  when  she  was  pregnant 
by  another,  took  them  to  his  house  to  live, 
after  the  quarrels  between  them,  due  partly 
to  the  birth  of  the  child,  had  become  un- 
bearable, ordered  the  husband  to  leave  the 
house  and  not  return,  stating  that  the 
daughter  never  could  live  with  him  again, 
is  not  sufficient  to  support  an  action  against 
the  father  for  alienation  of  the  daughter's 
affections.  Beisel  v.  Gerlach,  18:  516,  70  Atl. 
721,  221  Pa.  232. 

161.  Alienation  of  the  wife's  affections  is 
not  necessary  to  the  right  of  a  husband  to 
recover  damages  for  criminal  conversation. 
Stark  V.  Johnson,  16:  674,  95  Pac.  930,  43 
C!olo.  243. 

162.  A  decree  of  divorce  against  a  man 
does  not  deprive  him  of  the  right  to  dam- 
ages against  one  who  alienates  the  affections 
of  his  wife  before  the  divorce  is  granted. 
De  Ford  v.  Johnson,  46:  1083,  158  S.  W.  29, 
251  Mo.  244.  (Annotated) 

163.  A  statute  depriving  the  party 
against  whom  a  decree  of  divorce  is  granted 
ef  all  rights  and  claims  under  and  by  virtue 
of  the  marriage  does  not  deprive  him  of  a 
right  of  action  for  alienation  of  his  wife's 
affections  before  the  decree  was  granted. 
De  Ford  v.  Johnson,  46:  1083,  158  S.  W. 
29,  251  Mo.  244. 

h.  By  wife. 

Employment  of  attorney  to  begin  action 
for  divorce,  see  supra,  37. 

Against  husband,  see  infra,  III.  d. 

Evidence  in  action  by  wife  on  due  bill  to 
show  credit  thereon,  see  E\rrDENCE, 
1995. 

Conclusiveness  against  husband  of  judg- 
ment in  action  by  wife,  see  Judgment, 
257-259. 

Running  of  limitations  against  right  of  ac- 
tion, see  Limitation  of  Actions,  II.  m. 

Effect  of  laches,  see  Limitation  of  Actions, 
128. 

Action  by  wife  of  insurer  on  promise  of 
beneficiary  to  insured  to  pay  part  of 
proceeds  of  policy  to  wife,  see  Pabties, 
78. 

Wife  as  party  defendant,  see  Pabties,  183, 
185-187. 

.Necessity  of  pleading  failure  to  make  hus- 
band party  to  action  by  wife,  see 
Pleading,  487. 

Question  for  jury  as  to  elements  of  dam- 
ages in  action  by  wife  for  injury  to 
property,  see  Tkial,  659. 

Nonjoinder  of  husband  as  basis  of  nonsuit, 
see  Trial,  696. 

Digest   1-52  L.R.A.(N.S.) 


Proper  method  of  raising  question  of  wife's 
right  to  sue  in  her  own  name,  see 
Trial,  1114. 

Action  by  wife,  for  conversion,  see  Teover, 
2,   18. 

164.  A  wife  who  has  obtained  a  decree 
against  her  husband  for  separate  mainte- 
nance may  maintain  an  action  at  law  to 
reach  his  assets  upon  any  ground  which 
would  be  available  to  any  other  creditor. 
Raymond  v.  Blancgrass,  15:  976,  93  Pac. 
648,   36   Mont.   449. 

165.  Damages  cannot  be  recovered  by  a 
wife  against  persons  who,  pending  an  action 
for  separate  maintenance,  convert  and  dis- 
pose of  property  of  her  husband  to  their 
own  use  for  the  purpose  of  defrauding  her 
and  rendering  ineffectual  any  decree  that 
she  might  obtain;  since  she  has  acquired 
no  special  right  to  the  property,  and  is  not 
at  the  time  even  a  creditor  of  her  husband. 
Raymond  v.  Blancgrass,  15:  976,  93  Pac. 
648,    36    Mont.    449. 

166.  A  married  woman  living  in  the  home 
of  her  husband  cannot  maintain  an  action 
upon  an  implied  contract  by  a  lodger  to  pay 
for  personal  services  rendered  by  her  as 
nurse  in  his  illness,  since,  in  the  absence 
of  express  contract,  the  right  of  action  is 
in  her  husband.  Stevenson  v.  Akarman, 
46:  238,  85  Atl.  166,  83  N.  J.  L.  458. 

(Annotated) 

167.  An  action  in  tort  for  the  loss  by  a 
common  carrier  of  goods  of  a  married  wom- 
an may  be  brought  by  her,  although  the 
contract  for  their  transportation  was  made 
by  her  husband,  and  the  fact  of  her  owner- 
ship was  not  disclosed.  Lloyd  v.  Haugh  & 
K.  Storage  &  T.  Co.  21:  188,  72  Atl.  516, 
223  Pa.  148. 

168.  A  man  is  a  necessary  party  to  an  ac- 
tion for  damages  for  malicious  prosecution 
resulting  in  injury  to  the  character  of  his 
wife.  Magnuson  v.  O'Dea,  48:  327,  135  Pac. 
640,  75  Wash.  574. 

169.  A  father  who,  after  divorcing  the 
mother  of  his  child,  abandoned  it  to  her  cus- 
tody, is  not  a  necessary  party  to  a  suit  by 
her  for  its  abduction.  Magnuson  v.  O'Dea, 
48:  327,  135  Pac.  640,  75  Wash.  574. 

170.  A  child's  stepfather  who  has  received 
it  into  his  family  and  contributed  to  its 
support  is  a  necessary  party  to  an  action 
for  damages  for  loss  of  services,  due  to  its 
abduction.  Magnuson  v.  O'Dea,  48:  327,  135 
Pac.  640,  75  Wash.  574. 

171.  Where  a  woman  may  sue  for  dam- 
ages for  enticing  her  husband  from  her, 
she  may  maintain  an  action  for  deceit  in 
making  false  representations  to  her  about 
her  husband  which  causes  her  to  treat  him 
cruelly  and  thereby  drive  him  from  her, 
where  her  treatment  would  be  justified  if 
the  representations  were  true.  Work  v. 
Campbell,  43=  58i,  128  Pac.  943,  164  Cal. 
343. 

For  emticemeiit  of  cliild. 

172.  A  woman  residing  with  her  husband 
cannot  maintain  an  action  for  the   entice- 


1450 


HUSBAND  AND  WIFE,  III.  b. 


ment  from  home  of  her  minor  child.     Soper 
V.  Igo,  i:  362,  89  S.  W.  538,  121  Ky.  550. 

(Annotated) 
For  injnry  to  -wrife's  property. 

Right  of  action  for  trespass  on  homestead, 
see  Case,  4. 

173.  A  married  woman  cannot  maintain 
an  action  in  her  own  name  alone,  for  in- 
jury inflicted  after  coverture  by  a  stranger, 
upon  real  estate  of  which  she  was  seised  of 
an  estate  of  inheritance  at  the  time  of  the 
marriage.  Bishop  v.  Readsboro  Chair  Mfg. 
Co.  36:  1 171,  81  Atl.  454,  85  Vt.  141. 

174.  A  married  woman  whose  property  is 
destroyed  and  whose  health  is  injured  by 
blasting  on  adjoining  property  is  the  prop- 
er one  to  bring  the  action  to  recover  com- 
pensation therefor.  Green  v.  Shoemaker, 
23:  667,  73  Atl.  688,  111  Md.  69. 

For  personal  injury. 

Measure  of  damages  for,  see  Damages,  III. 
i,  2,  610,  611;  Evidence,  1718;  Trial, 
891. 

Imputing  negligence  of  husband  to  wife, 
see  Negligence,  257,  258. 

Refusal  of  instruction  as  to  right  of  mar- 
ried woman  to  recover  for  loss  of  earn- 
ing capacity,  see  Teial,  892. 

See  also  supra,  174;  Parties,  12. 

175.  The  authorization  of  the  husband  to 
the  wife  is  unnecessary  in  a  suit  by  her  for 
damage  resulting  from  personal  injuries  to 
her,  which  damages  are  "recoverable  by  her- 
self alone."  Shield  v.  F.  Johnson  &  Son 
Co.  47:  1080,  61  So.  787,  132  La.  773. 

176.  A  married  woman  may  recover  in 
her  own  right  for  physical  pain  and  suffer- 
ing and  mental  anguish  resulting  from  a 
personal  injury  negligently  caused  by  de- 
fendant. McGovern  v.  Interurban  R.  Co. 
13:  476,  111  N.  W.  412,  136  Iowa,  13. 

177.  A  woman  is  not  prevented  from 
maintaining  an  action  in  her  own  name  for 
injuries  to  her  person  by  one  committing  a 
trespass  upon  the  real  estate  upon  which  she 
resides  by  the  fact  that  the  ownership  of 
the  property  is  in  her  husband.  Engle  v. 
Simmons,  7:  96,  41  So.   1023,  148  Ala.  92. 

178.  The  intention  of  a  music  teacher  to 
continue  her  vocation  after  marriage  is  suf- 
ficient to  give  her  a  right  to  maintain  an 
action  in  her  own  name  for  personal  in- 
juries happening  after  that  event,  al- 
though, in  the  few  weeks  which  have 
elapsed  between  the  marriage  and  the  ac- 
cident, she  has  not  in  fact  performed  any 
service  as  such, — at  least,  where  the  hus- 
band consents  to  her  maintaining  her  in- 
dependent employment.  Niemeyer  v.  Chi- 
cago, B.  &  Q.  R.  Co.  23:  408,  121  N.  W.  521, 
143  Iowa,  129.  (Annotated) 
For  loss   of   consortiunt   or   injury   to 

husband. 
Instruction    as    to    damages    in    action    for 

death    of    husband,    see    Appeal    and 

Error,  1369. 
Widow's  right  of  action  for  negligent  kil- 
,  ling  of  husband,  see  Death,  14,  15,  17. 
Effect  of  husband's  abandonment  on  right 

to  recover  for  his  death,  see  Death,  33. 
Digest  1-52  Ii.B.A.(N.S.) 


Survival  of  widow's  claim  for  negligent  kil- 
ling of  husband,  see  Abatement  and 
Revival,  20. 

Damages  recoverable  by  widow  for  wrong- 
ful death  of  husband,  see  Damages,  400. 

179.  A  wife  cannot  recover  for  loss  of 
consortium  against  a  stranger  for  negligent- 
ly injuring  her  husband  physically  and  men- 
tally so  that  his  companionship  is  less  satis- 
factory and  valuable  than  before  the  in- 
jury, where  he  has  a  right  to  recover  full 
compensation  in  his  own  name.  FenefT  v. 
New  York  C.  &  H.  R.  R.  Co.  24:  1024,  89  N. 
E.  436,  203  Mass.  278.  (Annotated) 

180.  A  wife  cannot  recover  damages  for 
physical  and  mental  injuries  by  a  stranger 
to  her  husband,  which  resulted  in  great 
sufTering  and  anxiety  to  her,  and  required 
her  to  assume  heavy  and  arduous  duties 
which  were  not  necessary  before  the  in- 
jury. Feneff  v.  New  York  C.  &  H.  R.  R. 
Co.  24:  1024,  89  N.  E.  436,  203  Mass.  278. 

181.  Husband  and  wife  are  entitled  to 
the  affection,  society,  co-operation,  and  aid 
of  each  other  in  every  conjugal  relation, 
and  the  wife  may  maintain  an  action  for 
damages  against  anyone  who  wrongfully 
and  maliciously  interferes  with  the  marital 
relationship  and  thereby  deprives  her  of 
the  society,  affection,  and  consortium  of 
her  husband.  Flandermeyer  v.  Cooper,  40: 
360,  98  N.  E.  102,  85  Ohio  St.  327. 

182.  One  who,  with  knowledge  that  a 
husband  by  the  constant  and  continued  use 
of  morphine  has  become  so  weakened  in 
body  and  mind  that  he  is  unable  to  resist 
his  cravings  for  the  drug,  and  who,  after 
repeated  protests  from  the  wife,  continues 
to  sell  morphine  to  the  husband  until,  by 
the  use  thereof,  his  mind  becomes  so  im- 
paired and  destroyed  that  it  is  necessary 
to  confine  him  in  an  insane  asylum,  is  lia- 
ble to  the  wife  for  damages  for  her  loss  of 
consortium.  Flandermeyer  v.  Cooper,  40: 
360,  98  N.  E.  102,  85  Ohio  St.  327. 

(Annotated) 

183.  Malice  is  implied  in  an  action  by  a 
wife  for  the  loss  of  consortium  of  her  hus- 
band resulting  from  the  sale  of  morphine 
to  the  husband  by  the  defendant,  and  it 
is  not  necessary  that  hatred,  ill-will,  or 
actual  malice  be  shown,  nor  that  the  act 
proceed  from  a  spiteful,  malignant,  or 
revengeful  disposition.  Flandermeyer  v. 
Cooper,  40:  360,  98  N.  E,  102,  85  Ohio  St. 
327. 

184.  A  woman  cannot  recover  damages 
for  injury  inflicted  upon  her  husband  to 
the  diminution  of  his  earning  capacity  and 
consequent  ability  to  support  and  maintain 
her,  nor  for  loss  of  his  society  and  com- 
panionship because  of  such  injury.  Brown 
V.  Kitselman,  40:  236,  98  N.  E.  631,  177  Ind. 
692.  (Annotated) 
For  alienating  affections  of  husband. 
Cure  of  error  in  admission  of  evidence  in 

action    for,    see    Appeal    and    Error, 
1195. 
Prejudicial  error  as  to  evidence  in  action 
for,  see  Appeal  and  Error,  1260, 


HUSBAND  AND  WIFE,  III.  c,  d. 


1451 


Conspiracy  to  alienate  husband's  affection, 

see  Conspiracy,  8. 
Punitive  damages  for,  see  Damages,  49. 
Mitigation  of  damages,  see  Damages,  712. 
Burden  of  proof  as  to  malice,  see  Evidence, 

239. 
Evidence  in  action  for,  see  Evidence,  1392- 

1396,  1642,  1754,  1818,  1954,  1958,  2038. 
Sufficiency  of  proof  of  malice,  see  Evidence, 

2095. 
Evidence  admissible  under  allegations,   see 

Evidence,  2459. 
New  trial  because  of  excessive  damages,  see 

New  Trial,  32. 
Misconduct  of  judge  in  expressing  opinion 

on  facts,  see  Trial,  88, 
Excessiveness  of  verdict,  see  Trial,  1130. 
Competency  of  husband  or  wife  as  witness, 

see  Witnesses,  36-38. 
Cross-examination    of    plaintiff's    husband, 

see  Witnesses,  88. 
See  also  supra,  181. 

185.  Under  a  statute  permitting  a  mar- 
ried woman  to  maintain  actions  for  injuries 
in  the  same  manner  as  if  sole,  she  may 
maintain  an  action  for  the  alienation  from 
her  of  the  affections  of  her  husband.  Nolin 
V.  Pearson,  4:  643,  77  N.  E.  890,  191  Mass. 
283.  (Annotated) 

186.  Under  a  statute  permitting  a  mar- 
ried woman  to  maintain  actions  for  all  torts 
committed  against  her  or  her  separate  prop- 
erty, in  the  same  manner  as  if  sole,  she  may 
maintain  an  action  for  the  alienation  from 
her  of  the  affections  of  her  husband.  Sims 
V.  Sims  (N.  J.  Err.  &  App.)  29:  842,  76  Atl. 
1063,  79  N.  J.   L.  577.  (Annotated) 

187.  A  wife,  though  the  husband  be  liv- 
ing, has  the  right  of  action  in  her  sole  name 
for  wrongful  alienation  of  her  husband's 
affection,  causing  his  separation  from  her. 
Gross  v.  Gross,  39:  261,  73  S.  E.  961,  70 
W.  Va.  317. 

188.  A  father,  who  moved  by  malice 
toward  the  wife  of  his  son  and  without 
good  faith  and  honest  purpose  and  good 
motive  for  his  son's  welfare,  alienates  the 
affections  of  his  son,  is  liable  to  the  wife, 
but  if  his  action  is  without  malice,  and 
springs  only  from  what  he  honestly  be- 
lieves to  be  necessary  for  his  son's  welfare, 
he  is  not  liable.  Gross  v.  Gross,  39:  261, 
73  S.  E.  961,  70  W.  Va.  317. 

189.  A  woman  cannot  be  held  liable  for 
alienating  the  affections  of  the  husband  of 
another  woman  from  her,  if  he  alienated  his 
own  affections  without  any  intentional  mis- 
conduct on  the  part  of  defendant,  or  if  such 
alienation  was  occasioned  by  some  other 
cause  over  which  defendant  had  no  control, 
or  exercised  no  intentional  direction  or  in- 
fluence. Scott  V.  O'Brien,  16:  742,  110  S.  W. 
260,  129  Ky.  1.  (Annotated) 

190.  A  woman  who  has  secured  a  divorce 
because  of  her  husband's  infidelity  may 
maintain  an  action  to  recover  damages  for 
the  alienation  of  his  affections,  under  a  stat- 
ute giving  her  the  same  right  to  sue  in  her 
own  name  for  unjust  usurpation  of  her 
rights  that  her  husband  has.  Keen  v.  Keen, 
10:  504,  90  Pac.  147,  49  Or.  362. 

191.  A  wife  may  maintain  an  action  for 
Digest  1-52  L.B.A.(N.S.) 


alienation  of  affections  against  a  woman 
guilty  of  criminal  conversation  with  her 
husband,  although  she  did  not  effect  the 
seduction,  but  was  the  victim.  Miller  v. 
Pearce,  43:  332,  85  Atl.  620,  86  Vt.  322. 

(Annotated) 

192.  An  action  for  alienation  of  affections 
cannot  be  defeated  because  plaintiff  was 
estranged  from  her  husband  before  his  ac- 
quaintance with  defendant.  Miller  v. 
Pearce,  43:  332,  85  Atl.  620,  86  Vt.  322. 

193.  Malice  need  not  be  found,  to  sup- 
port a  judgment  against  defendant  in  an 
action  for  alienation  of  affections,  although 
exemplary  damages  are  claimed,  since  mal- 
ice goes  to  the  amount  of  damages,  and  not 
to  right  of  recovery.  Miller  v.  Pearce,  43: 
332,  85  Atl.  620,  86  Vt.  322. 

194.  Malice  is  an  ingredient  of  liability  to 
a  woman  for  the  alienation  of  her  husband's 
affections,  if  his  conduct  was  caused  by  ad- 
vice given  with  a  friendly  desire  to  assist 
him,  although  it  may  have  been  mistaken. 
Geromini  v.  Brunelli,  46:  465,  102  N.  E.  67, 
214  Mass.  492,  (Annotated) 

c.  By  hoth  husband  and  wife. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Imputing  negligence  of  husband  to  wife  in 
action  for  personal  injury  to  wife,  see 
Negligence,  257,  258. 

Joinder  of  actions  in  favor  of  man  and  his 
intended  wife,  see  Parties,  146. 

See  also  supra,  168-170. 

195.  A  wife  may  join  her  husband  as 
plaintiff  in  an  action  brought  to  recover 
from  the  guardian  of  her  separate  estate 
certain  moneys  alleged  to  be  due  her  as 
ward.  Mitchell  v.  Penny,  26:  788,  66  S.  E. 
1003,  66  W.  Va.  660, 

d.  Between  hushand  and  wife. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Action  by  father  for  abduction  of  child  by 
mother,  see  Abduction  and  Kidnap- 
ping, 3. 

Action  for  divorce,  see  Divorce  and  Sepa- 
ration. 

Action  by  wife  against  husband  to  recover 
property  given  her  by  him,  see  Gift, 
4. 

Action  against  husband  for  restitution  of 
paraphernalia,  see  Limitation  of  Ac- 
tions, 231. 

196.  A  married  woman  cannot  confer  up- 
on an  assignee  the  right  to  sue  her  husband 
upon  a  contract  obligation  which  she  holds 
against  him,  although  she  has  power  to 
contract  with  reference  to  her  personal  es- 
tate, and  is  authorized  to  prosecute  suits 
at  law  in  her  own  name  for  the  preserva- 
tion and  protection  of  her  property  and 
personal  rights,  since  this  does  not  include 


1452 


HUSBAND  AMD  WIFE,  IV. 


authority  to  maintain  suits  against  her 
husband.  Perkins  v.  Blethen,  31:  1148,  78 
Atl.    574,    107    Me.   443.  (Annotated) 

197.  A  wife  may  enforce  a  promissory 
note  executed  to  her  by  her  husband,  under 
a  statute  replacing  unity  of  property  rights 
with  equality  in  legal  identity  and  in  own- 
ership of  property.  Mathewson  v.  Mathew- 
Bon,  5:  6ii,  63  Atl.  285,  79  Conn.  23. 

(Annotated) 

198.  A  woman  who  has  been  deserted  by 
her  husband  may,  since  the  passage  of  the 
married  women's  acts,  maintain  an  action 
against  him  to  recover,  according  to  his 
pecuniary  ability,  the  amount  which  she 
has  expended  from  her  separate  estate  for 
the  necessary  support  of  herself  and  her 
children,  although  the  funds  are  the  out- 
come chiefly  of  her  own  labor.  De  Brauwere 
V,  De  Brauwere,  38:  508,  96  N.  E.  722,  203 
N.  Y.  460.  (Annotated) 

199.  Resort  to  equity  is  not  necessary  to 
enforce  a  contract  between  husband  and 
wife  under  a  statute  permitting  her  to  con- 
tract directly  with  her  husband,  and  mak- 
ing her  liable  on  such  contracts  as  if  un- 
married. Winter  v.  Winter,  i6:  710,  84  N. 
E.  382,  191  N.  Y.  462. 

200.  A  trustee  who  has  sold  the  trust 
property  through  an  intermediary  to  his 
wife  cannot  maintain  an  action  against  her 
to  compel  payment  of  the  purchase  money. 
Atkins  V.  Atkins,  11:  273,  80  N.  E.  806,  195 
Mass.  124.  (Annotated) 
By  husband  for  tort  of  ixrife. 

201.  A  mere  statutory  provision  that, 
when  the  action  is  between  a  married  wo- 
man and  her  husband,  she  may  sue  and  be 
sued  alone,  does  not  give  him  a  right  to  sue 
her  for  a  personal  tort  inflicted  upon  him 
by  her.  Peters  v.  Peters,  23:  699,  103  Pac. 
219,  156  Cal.  32. 

202.  A  husband  cannot  maintain  an  ac- 
tion against  his  wife  for  injuries  inflicted 
upon  him  by  her  act  in  deliberately  wound- 
ing him  with  a  gun,  either  at  common  law 
or  under  statutes  giving  her  the  right  to 
separate  property,  and  permitting  them  to 
contract  with  each  other.  Peters  v.  Peters, 
23:  699,  103  Pac.  219,  156  Cal.  32. 

(Annotated) 
By  wife  for  tort  of  husband. 

203.  A  woman  may  maintain  an  action 
against  her  former  husband  for  a  tort  com- 
mitted during  coverture.  Fiedler  v,  Fied- 
ler, 52:  189,  140  Pac.  1022,  42  Okla.   124. 

( Annotated ) 

204.  The  common-law  relation  between 
husband  and  wife  was  not  so  far  modified 
as  to  give  the  wife  a  right  of  action  to  re- 
cover damages  from  her  husband  for  an  as 
aault  and  battery  committed  by  him  upon 
her  person  by  a  statute  authorizing  married 
women  "to  sue  separately  for  the  recovery, 
security,  or  protection  of  their  property,  ami 
for  torts  committed  against  them,  as  fully 
and  freely  as  if  they  were  unmarried." 
Thompson  v.  Thompson.  30:  1153,  31  Sup. 
Ct.  Rep.  Ill,  218  U.  S.  611,  54  L.  ed.  1180. 

(Annotated) 

205.  A  woman  cannot,  even  after  divorce, 
maintain  an  action  against  her  former  hus- 
Dieest  1-52  I^R.A.(N.S.) 


band  for  an  assault  committed  upon  her 
during  coverture,  under  a  statute  preserving 
the  legal  personality  of  a  woman  after  mar- 
riage, and  giving  her  the  same  right  of  ac- 
tion for  injuries  sustained  to  hor  person  in 
her  own  name  that  her  husband  has  for  in- 
juries to  him.  Strom  v.  Strom,  6:  191,  107 
N.  W.  1047,  98  Minn.  427.  (Annotated) 

206.  Under  statutes  preserving  to  a  mar- 
ried woman  her  rights  to  own  property  and 
transact  business  in  her  own  name,  she  may 
maintain  an  action  in  her  own  name  against 
her  husband  for  assault  and  false  imprison- 
ment. Brown  v.  Brown,  52:  185,  89  Atl. 
889,  88  Conn.  42.  (Annotated) 

207.  A  statute  abolishing  civil  disabili- 
ties of  a  wife  which  are  not  imposed  or 
recognized  as  existing  as  to  the  husband 
does  not  give  her  a  right  of  action  against 
him  for  communicating  to  her  a  venereal 
disease.  Schultz  v.  Christopher,  38:  780, 
118  Pac.  629,  65  Wash.  496. 

JV.  Abandonment  of  wife. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Right  of  deserted  wife  to  claim  community 
rights,  see  supra,  80. 

Action  by  deserted  wife  to  recover  for  her 
support  and  that  of  her  children,  see 
supra,  198. 

Wife's  right  of  action  for  alienating  hus- 
band's affection,  see  supra,  181,  185- 
194. 

Extorting  from  husband  who  has  deserted 
wife,  money  to  which  wife  was  justly 
entitled,  as  ground  for  disbarment  of 
attorney,  see  Attorneys,  24. 

Wife's  right  to  year's  support  upon  aband- 
onment by  husband;  what  law  governs, 
see  Conflict  of  Laws,  121. 

Increasing  penalty  of  bond  in  prosecution 
for  abandonment,  see  Constitutional 
Law,  35. 

Jurisdiction  of  prosecution  for  failure  to 
support  wife,  see  Courts,  29,  30. 

Conviction  of  failure  to  maintain  wife  as 
bar  to  prosecution  for  continued  fail- 
ure to  maintain  her,  see  Criminal 
Law,  208. 

Cruel  and  unusual  punishment  under  stat- 
utes relating  to  desertion,  or  nonsup- 
port  of  wife  by  husband,  see  Criminal 
Law,  244. 

Requiring  husband  upon  conviction  of 
abandonment  to  pay  wonkly  sum  for 
wife's  support  in  lieu  of  fine  or  im- 
prisonment, see  Criminal  Law,  282; 
Jury,  51;  Public  Money,  15. 

Effect  of  husband's  aliandonmcnt  on  right 
to  recover  for  his  death,  see  Death,  33. 

Desertion  as  ground  for  divorce,  see  Di- 
vorce AND  Separation,  II.  b. 

Failure  to  support  wife  as  ground  for  di- 
vorce, see  Divorce  and  Separation,  25, 
36,  37. 

Right  of  one  wrongfully  abandoning  spouse 
to  divorce  on  ground  of  separation,  see 
Divorce  and  Separation,  71. 


HYDRANTS— HYPOTHETICAL  QUESTIONS. 


1453 


Independent  suit  for  maintenance  of  de- 
serted wife,  see  Divorce  and  Sepaba- 
Tiox,  81,  83-93,  96. 

Right  of  husband  abandoning  wife  to  ques- 
tion validity  of  deed  of  wife  to  home- 
stead, see  Estoppel,  53. 

Extradition  of  husband  as  fugitive  from 
justice  for  failure  to  support  wife,  see 
Extradition,  11. 

Abandonment  of  wife  as  affecting  home- 
stead, see  HoJiESTEAD,  5. 

Abandonment  of  liomestead  by  wife  aband- 
oned by  her  husband,  see  Homestead, 
39. 

Right  of  abandoned  wife  to  convey  home- 
stead, see  Homestead,  50. 

Venue  of  suit  for  maintenance,  see  Venue, 
4. 

Privilege  of  husband  as  witness  from  arrest 
for  desertion  or  nonsupport  of  wife,  see 
Writ  and  Process,  76. 

See  also  supra,  198. 

208.  That  a  man  had,  without  the  knowl- 
edge of  his  wife,  been  guilty  of  adultery  be- 
fore abandoning  her  because  of  her  adul- 
tery, for  which  cause  his  action  for  divorce 
failed,  does  not  prevent  his  taking  advan- 
tage of  the  statutory  provision  that  in  a 
statutory  action  for  support  because  of  aban- 
donment defendant  may  set  up  in  justifica- 
tion the  misconduct  of  the  plaintiff.  Haw- 
kins V.  Hawkins,  19:  468,  86  N.  E.  468,  193 
N.  Y.  409.  (Annotated) 

209.  A  decree  refusing  a  divorce  to  a  man 
because  of  his  adultery  does  not  prevent  his 
setting  up  the  adultery  of  the  wife,  on  which 
the  former  action  was  based,  in  defense  of 
a  statutory  action  by  her  for  support,  in 
which  the  statute  expressly  authorizes  such 
defense.  Hawkins  v.  Hawkins,  19:  468,  86 
N.  E.  468,  193  N.  Y.  409. 

210.  A  husband  who  without  cause  neg- 
lects or  refuses  to  provide  for  the  support 
and  maintenance  of  his  wife  and  children, 
thereby  placing  them  in  such  a  situation 
that  they  stand  in  need  of  the  necessaries 
of  life,  is  guilty  of  the  violation  of  Kan. 
Laws  1911,  chap.  163,  commonly  known  as 
the  desertion  act,  although  these  necessaries 
may  be  supplied  by  the  labor  of  those  de- 
serted or  by  sympathizing  relatives.  State 
V.  Waller,  49:  588,  136  Pac.  215,  90  Kan. 
829. 

211.  The  words,  "in  destitute  or  necessi- 
tous circumstances,"  as  used  in  chap.  163, 
Kan.  Laws  1911,  known  as  the  desertion 
act,  mean  needing  the  necessaries  of  life, 
which  cover  not  only  primitive  physical 
needs,  things  absolutely  indispensable  to 
human  existence  and  decency,  but  those 
things,  also,  which  are  in  fact  necessary 
to  the  particular  person  left  without  sup- 
port. State  V.  Waller,  49:  588,  136  Pac. 
215,  90  Kan.  829.  (Annotated) 

212.  The  character  and  extent  of  the  re- 
sources of  a  wife  and  children,  and  their 
availability  to  meet  their  needs,  may  be 
taken  into  consideration  in  determining 
whether  or  not  they  are  in  necessitous  cir- 
cumstances within  the  meaning  of  Kan. 
Laws  1911,  chap.  163,  which  provide  for  the 
Digest  1-52  L.fl.A.(N.S.) 


punishment  of  a  husband  who,  without  just 
cause,  neglects  or  refuses  to  provide  for  the 
support  and  maintenance  of  his  wife  and 
children  in  destitute  or  necessitous  circum- 
stances, the  question  in  all  cases  being  one 
of  fact  for  the  jury  to  determine  under 
proper  instructions  from  the  court.  State 
V.  Waller,  49:  588,  136  Pac.  215,  90  Kan. 
829. 

213.  Chapter  163,  Kansas  Laws  of  1911, 
relating  to  desertion  and  nonsupport  of  a' 
wife  by  husband,  which  authorizes  the  war- 
den or  official  in  charge  of  the  penitentiary 
or  reformatory  to  which  the  husband  may 
be  sentenced,  to  pay  over  to  the  wife  a  sum 
equal  to  such  amount  as  may  be  allowed 
by  law  to  such  convict  for  each  day's  hard 
labor  performed  by  him,  is  not  unconsti- 
tutional, where  there  is  no  law  by  which  the 
convict  receives  wages  for  hia  labor.  State 
V.  Gillmore,  47:  217,  129  Pac.  1123,  88  Kan. 
835. 

214.  Chapter  163,  Kansas  Laws  of  1911, 
relating  to  desertion  and  nonsupport  of 
wife  by  husband,  and  providing  that  the 
court  may  parole  or  release  the  husband  on 
condition  that  he  provide  periodical  sup- 
port for  his  wife,  is  not  void  as  being  a 
diversion  of  a  fine  from  the  support  of 
common  schools  as  required  by  the  Consti- 
tution, as  such  payment  cannot  rightfully  be 
considered  a  fine.  State  v.  Gillmore,  47: 
217,  129  Pac.  1123,  88  Kan.  835. 


HYDRANTS. 


Compelling  location  of,  see  Injunction,  33. 
Liability    for    negligence    in    flushing,    see 

Municipal  Corporations,  406,  407. 
Question  for  jurv  as  to  purpose  of  flushing, 

see  Tbial,  284. 


HYDRAULIC    MINING. 

Permit  for,  see  Mines,  28. 


HYPOTHECATION, 

Of    fire    insurance    policy,    see    Insurance 
447. 


HYPOTHETICAL   QUESTIONS, 

Review  as  to,  on  appeal,  see  Appeal  and- 
Error,  457,  512,  618. 

Raising  question  of  failure  to  supply  miss- 
ing element  in,  see  Appeal  and  Error, 
777. 

Prejudicial  error  in  excluding,  see  Appeai* 
AND  Error,  1266. 

In  general,  see  Evidence,  VII.  b. 


1454 


ICE— IDENTITY. 


IC£ 

On  car  steps,  see  Caeeiers,  299-301,  375; 

Trial,  384. 
,0n  street  or  sidewalk,  see  Evidence,  322; 

Highways,  244-254,  300-305,  312,  313, 

350,  364;  Landlobd  and  Tenant,  129; 

Tbial,  429. 
On  private  way,  see  Pbivate  Way,  2. 
Necessity  of  notice  to  landlord  of  defect  in 

conductor  pipe  to  hold  him  liable  for 

injury  by  fall  on  ice,  see  Highways, 

38S. 
Injury  to  employee  slipping  on,  see  Masteb 

and  SEBVAjyr,  331. 
Injury  to  pedestrian  by  fall  of,  see  HlOH- 
(         WAYS,  310,  314. 

Injury  to  servant  by  overturning  of  loco- 
j         motive    because    of,    see    Masteb    and 

Sebvant,  385,  386. 
As  personal  baggage  of  passenger  on  street 

car,  see  Cabbiebs,  710;  Damages,  99, 
Park  commissioners'  jurisdiction  to  forbid 

taking  of,  see  Commissioners,  2. 
lU^al  combination  to  suppress  competition 

in  sale  of,  see  Monopoly  and  Combina- 
tions, 54. 
Sale  of,  on  Sunday,  see  Sunday,  19. 
Operation  of  ice  plant  by  municipality,  see 

Municipal  Corporations,  310,  311. 
Interference  by  ice  company  with  business 

of  rival,  see  Unfaib  Competition,  11, 

12. 

1.  The  legislature  may  forbid  the  tak- 
ing of  ice  from  a  stream  the  title  to  which 
is  in  the  public,  in  favor  of  a  public  use  for 
skating  and  other  sports.  Board  of  Park 
Comrs.  V.  Diamond  Ice  Co.  3:  1103,  105  N. 
W.  203,  130  Iowa,  603. 

'Who  entitled  to. 

2.  Making  improvements  on  the  banks 
of  a  stream  the  title  to  which  is  in  the  pub- 
lic, for  the  business  of  harvesting  ice  there- 
from, followed  for  a  length  of  time  by  the 
prosecution  of  such  business,  gives  no  right 
to  the  use  of  the  adjoining  river  for  that 
purpose  to  the  exclusion  of  other  members 
of  the  public.  Board  of  Park  Comrs.  v. 
Diamond  Ice  Co.  3:  1103,  105  N,  W.  203,  130 
Iowa,  603. 

Extent  of  rights  in. 

3.  A  provision  in  a  statute  empowering 
park  commissioners  to  prohibit  the  taking 
of  ice  from  a  stream  the  title  to  which  is  in 
the  public,  that  "vested  rights  of  riparian 
owners  shall  not  be  affected,"  preserves  only 
rights  which  were  vested  at  the  time  of  its 
passage,  and  does  not  preserve  the  right  to 
take  ice  to  be  formed  in  the  future,  although 
improvements  for  that  purpose  have  been 
constructed  on  the  shore.  Board  of  Park 
Comrs.  V.  Diamond  Ice  Co.  3:  1103,  105  N. 
W.  203,   130  Iowa,   603. 

Digest  1-52  L.R.A.(N.S.) 


ICE  JAM. 

Municipal  liability  for  injury  by,  see  Mu- 
nicipal Corporations,  398,  399. 

Liability  for  flooding  land  resulting  from 
breaking  of  ice  jam,  see  Waters,  206. 
257. 


ICE  PLANT. 


Power  of  city  to  operate,  see  Constitution- 
al Law,  366,  401;  Municipal  Corpo- 
rations, 310,  311. 

Operation  of,  as  nuisance,  see  Nuisancbs, 
29. 


IDEM  SONANS. 

See  Name,  8,  9;  Taxes,  233;  Trial,  W5. 


IDENTIFICATION. 

Of  bills  of  exception  and  transcrip  of  evi- 
dence, see  Appeal  and  Error,  189. 

Of  evidence,  see  Appeal  and  Errob,  233. 

Of  writing  offered  in  evidence,  see  Evi- 
dence,  740. 

Rights  of  payee  taking  forged  check  with- 
out identification  of  drawer,  see  Banks, 
112. 

Payment  of  check  by  bank  without  identi- 
fying drawer,  see  Banks,  119. 

Of  articles  sold,  see  Conteacts,  152. 

Power  to  require  one  who  has  caused  an  in- 
jury to  identify  himself,  see  Criminal 
Law,  121. 

Photographing  and  measuring  accused  per- 
son for  purpose  of,  see  Criminal  Law, 
122,  123. 

Secondary  evidence  to  identify  record  of 
conviction,  see  Evidence,  731. 

Of  property  in  action  for  specific  perform- 
ance of  contract  to  convey,  see  Specuto 
Pebfobmance,  95. 

Afl5xing  title  to  initiative  measure  for  iden- 
tifying purposes,  see  Statutes,  90. 

Desire  to  identify  person  as  justifying  entry 
into  his  home  or  ofiice,  see  Tbespass, 
22. 


IDENTITY. 


Of  causes  of  action,   see  Action  of  Stnr, 

II.  f;  Corporations,  359. 
Error  in  admission  of  evidence   as  to,   see 

Appeal  and  Error,  1155. 
Mistake  in,  as  justification  for  assault,  see 

Assaui.t  and  Battery,  32. 


IGNORANCE— ILLICIT  RELATIONS. 


1455 


Ejection  of  passenger  because  of  mistake  in, 
see  Carkieks,  385. 

Necessity  of  proving,  on  prosecution  for  sec- 
ond offense,  see  Criminal  Law,  267, 
268. 

Presumption  as  to,  see  Evidence,  145. 

Parol  evidence,  as  to,  see  Evidence,  VI.  j. 

Opinion  evidence  as  to,  see  Evidexce,  VII. 
1. 

Evidence  as  to  generally,  see  Evidence,  XI. 

V. 

Admissibility   of   document   for   purpose   of 

showing,  see  Evidence,  IV.  p. 
Of  dying  declarations,  see  Evidence,  1491. 
Evidence  to  show  identity  of  person  referred 

to  in  alleged  libel,  see  Evidence,  2000. 
Sufficiency  of  evidence  as  to,  see  Evidence, 

2217,   2291,   2373-2375. 
Of  church,  see  Religious  Societies,  III.  b. 
Of  logs  claimed  under  deed,  as  question  for 

jury,  see  Tbial,  606. 


IGNORANCE. 


Master's  duty  to  warn  ignorant  employee  of 
danger,  see  Masteb  and  Servant,  226- 
228,  246-252. 


IIXEGAL  ACTS. 

Injunction  against,  see  Injunction,  I.  d. 


ILLEGAL  COMBINATIONS. 

See    Conspiracy,    Monopoly    and    Combi- 

ATIONS. 


ILLEGAL  CONTRACTS. 

In  general,  see  Contracts,  III. 
Specific  performance  of,  see  Specific  Per- 
formance, 25-28. 


ILLEGAL    VOTING. 


See  EMicnoNS 


ILLEGITIMACY       AND       ILLEGITI- 
MATE CHILDREN. 

Bastardy  proceeding,  see  Bastardy. 

Conflict  of  laws  as  to  rights  of  legitima- 
tized child,  see  Conflict  of  Laws,  83. 

Requiring  physician  or  midwife  to  certify 
as  to  legitimacy  or  illegitimacy,  see 
Constitutional  Law,  638. 

Right  of  natural  mother  to  visit,  see  Con- 
tempt, 27. 

Promise  to  give  property  to,  in  consider- 
ation of  right  to  custody  of,  see  Con- 
tracts, 488. 

Digest  1-52  L.R.A.(N.S.) 


Status  of  child  begotten  after  the  divorce 
of  its  parents,  see  Death,  7. 

Right  of  action  for  death  of  illegitimate 
child,  see  Death,  28-30. 

Right  to  inherit,  see  Descent  and  Distri- 
bution, 12-15. 

Presumption  as  to  legitimacy,  see  Evidence, 
117,   118,  123,  146. 

Evidence  as  to  illegitimacy,  see  Evidence, 
1269. 

Evidence  to  show  existence  of  illegitimate 
child,  see  Evidence,  1306,  1375. 

Dying  declarations  to  show  paternity  of, 
see  Evidence,  1510. 

Sufficiency  of  evidence  as  to  legitimacy,  see 
Evidence,  2210,  2211. 

Probate  of  will  charging  illegitimacy,  see 
Executors    and   Administrators,    93. 

Injunction  against  use  of  false  certificate  of 
birth  to  claim  status  of  legitimate 
child,  see  Injunction,  103. 

Allegation  of  illegitimacy  of  child  as  libel, 
see  Libel  and  Slandee,  131. 

Effect  of  marriage  of  divorced  person  in 
violation  of  statute  on  legitimacy  of 
children  of  second  marriage,  see  Mab- 
biage,  19. 

Legitimation  of  illegitimate  child,  see  Par- 
ent and  Child,  II. 

Right  of  mother  to  recover  value  of  serv- 
ices, see  Parent  and  Child,  14. 

Adoption  of  illegitimate  child  without 
mother's  consent,  see  Parent  and 
Child,  35,  36. 

Effect  of  allegation  of  illegitimacy  in  pe- 
tition for  adoption,  see  Pleading,  140, 
415. 

Right  of  natural  mother  to  visit  legitimated 
child,  see  Parties,  185,  186. 

Seduction  of,  see  Damages,  333;  Seduc- 
tion, 1. 

Right  of  illegitimate  to  take  under  will 
bequeathing  property  to  "child,"  see 
Wills,  169. 


ILL  FAME. 


House  of,  see  Disorderly  Houses. 


ILLICIT  RELATIONS. 

Between  parties  to  contract  for  services  as 
defense  to  action  to  recover  for  serv- 
ices, see  Contracts,  778. 

With  wife  before  marriage  as  defense  to 
action  by  husband  for  divorce,  see  Di- 
vorce AND  Separation,  64,  65. 

False  charge  of,  as  ground  for  divorce,  see 
Divorce    and    Separation,    27-30,    33. 

Refusal  of  equity  to  aid  one  in  recovering 
money  given  as  consideration  for,  see 
Equity,  130. 

Burden  of  proving  subsequent  character  of 
cohabitation  originally  illicit,  see  Evi- 
dence, 147,  148. 


1456 


ILLITERACY— IMPEACHMENT. 


Contract  by  husband  to  transfer  real  es- 
tate to  wife  in  case  he  resumes  illicit 
relations  with  paramour,  see  Husband 
AND  Wife,  100. 

Between  partners,  see  Partnership,  63. 


^•» 


ILLITERACY. 


Competency  of  illiterate  person  as  witness, 
see  Evidence,  1103. 

Master's  duty  as  to  warning  illiterate  em- 
ployee, see  Master  and  Servant,  226- 
228. 

Specific  performance  of  contract  by  illiter- 
ate woman,  see  Specific  Performance, 

;.:    28. 

Assistance  to  illiterate  voter,  see  Statutes, 
253. 


ILLNESS. 


See  Sickness. 


ILL  TREATMENT. 

As  ground   for    divorce,    see   DiVOBCB   and 


Separation,  III.  a. 


♦  •♦■ 


ILLUMINATING    GAS. 


See  Gas. 


ILLUMINATING  OIL. 

Contributory  negligence  of  purchaser  of,  see 

Negligence,  206,  207,  250. 
Statute  as  to  adulteration  of,  see  Statutes, 

251. 
Question  for  jury  as  to  adulteration  of,  see 

Trial,  228. 


ILL  WILL. 


Effect   of,   on   right  to   abatement   of   nui- 
sance, see  Nuisances,  176. 


IMITATION. 


Of  better,  police  power  as  to,  see  Constitu- 
tional Law,  729. 

Of  stage  business,  as  infringement  of  copy- 
right of  theatrical  composition,  see 
Copyright,  23. 

Injunction  against,  see  Injunction,  I.  m. 

Of  trademark,  see  Trademarks,  IV» 

Of  tradename,  see  Tradename. 

Unfair  competition  by,  see  Unfair  Com* 
petition. 

Digest  1-52  L.R.A.(N.S.) 


IMMATURITY. 

Set-off  of  unmatured  claims,  see  Garnish- 
ment, 46. 

Effect  of,  on  right  to  set-off,  see  Set-Off 
and  Counterclaim,   38,  39. 


IMMEDIATE  NOTICE. 

Of  injury,  sickness,  d€ath  or  loss,  see  In- 
surance, VI.  a. 


IMMIGRANT. 


Accompanying    stock    and    household    goods 
as  passenger,  see  Carriers,  84. 


IMMIGRATION. 

See  Aliens,  I. 


IMMORALITY. 


Disbarment  of  attorney  for,  see  Attorney, 
21. 

Right  of  state  to  forbid  importation  of 
woman  into  state  for  immoral  purpos- 
es, see  Commerce,  40,  41. 

Lease  of  premises  for  immoral  purposes,  see 
Contracts,  492. 

Injunction  against,  see  Parties,  112. 


IMMUNITY. 


Promise  of,  in  exchange  for  testimony,  see 
Appeal  and  Error,  47. 

Right  of  accomplice  testifying  under  prom- 
ise of,  see  Criminal  Law,  152. 

To  witness,  see  Witnesses,  131-135. 

Abridgment  of,  see  Cqnstitutional  Law, 
IL  a. 


IMPAIRMENT    OF    OBLIGATION. 

See  Constitutional  Law,  II.  g. 


IMPEACHMENT. 


Of  award   of   damages   in   eminent  domain 

case,  sec  Damages,  552. 
Of    requisition    of    fugitive    in    extradition 
>        case,  see  Evidence,  7R4. 
Of  acknowledgment  by  testimony  of  parties 

to  certificate,  see  Evidence,  912. 
Of  dying  declaration,   see  Evidence,   1506, 

1507. 
Of  executor's  account,  see  Executors  and 

Administrators,  IV.  c,  4. 


a 


IMPENDING   DEATH— IMPKISONMENT. 


1457 


Of  verdict  by  affidavit  of  jurors,   see  New 

Trial,  V.  d. 
Of  officer,  see  Officers,  I.  e.  4. 
Of  statute,  see  Statutes,  86. 
Of  attesting  witness  to  will,  see  Wills,  99. 
Of   witness,   see   Appeal   and   Error,    178; 

Witnesses,  III. 


IMPENDING  DEATH. 

Sense  of,  as  essential  to  admissibility  of 
dying  declarations,  see  Evidence,  1500- 
1505. 

<»  «  » 


IMPLEMENTS   OF  TRADE. 

Exemption  of,  see  Exemptions,  II.  b. 
Cab  as,  see  Exemptions,  13. 

«-»■• 


IMPLICATION. 


Of  contract,  see  Contracts,  I.  b. 

Of  price  for  articles  sold,  see  Contracts, 

124. 
See  also  Pleading,  I.  e. 


♦  »» 


IMPLIED    AGREEMENT. 

Presumption  as  to,  see  Evidence,  537. 

4»» 

IMPLIED    COVENANT. 

In  general,  see  Covenants  and  Conditions, 

14-19. 
In  lease,  see  Landlobd  and  Tenant,  II.  b, 

2. 


IMPLIED  EASEMENTS. 

See  Easements. 

-    ♦•» 


IMPLIED    GIFT. 

To  objects  of  power,  see  Powers,  5. 
By  will,  see  Wills,  148-153. 


♦-•-♦ 

IMPLIED  GRANT. 

See  Grant,  1. 

♦-•-♦ 

IMPLIED   GUARANTY. 

See  Guaranty,  10,  11. 
Digest   1-52  L.R.A.(N.S.) 


IMPLIED  POW^ERS. 

Of  sale,  see  Chattel  Mortgage,  64. 

Of  corporation,  see  Corporations,  52-55. 


IMPLIED    RESERVATION. 

Of  burial  rights  in  land  conveyed,  see  Cem- 
eteries, 4. 

In  deed,  see  Deeds,  55. 

Of  easement,  see  Easements,  36,  41,  56,  58, 
60. 


IMPLIED  TRUSTS. 

See  Trusts,  I.  d. 

^^t^ 

IMPLIED  ^V ARRANT Y. 

Of  title  on  sale  of  chattels,  see  Evidence, 

568. 
In  general,  see  Sale,  II. 

♦  •» 


IMPORTATION. 

Regulation  of  importations,  see  Commerce. 

♦*-♦ 

IMPOSSIBILITY. 

As  ground  for  relief  from  contract,  see  Con- 
tracts, IV.  b,  2. 


IMPOSTOR. 


Payment  of  clieck  to,  by  bank,  see  Banks, 

90,  109,  239. 
Issuing  of  clieclv  to,  see  Checks,  54. 
Liability  of  one  who  introduces  impostor  to 

one   from    whom   he   secures   loan,   see 

Fraud  and  Deceit,  68. 


IMPOUNDING. 


Of   assets  of  nonresident   aliens,   see  Con- 
flict OF  Laws,  135. 
Of  flood  water,  see  Waters,  196. 
Of  waters  of  spring,  see  Waters,  263. 


IMPRISONMENT. 


Effect  of,  as  civil  death,  see  Civil  Death. 

Of  laborer  for  violation  of  farm  labor  con- 
tract, see  Constitutional  Law,  335; 
Peonage. 

By  military  authorities,  see  Constitution- 
al Law,  572. 

92 


1458 


IMPRISONMENT  FOR    DEBT— IMPROVEMENTS. 


Of  insane  criminals,  see  Ck)NSTiTUTiONAL 
Law,  547,  568,  569. 

For  crime  generally,  see  Criminal  Law,  IV. 

As  ground  for  divorce,  see  Divorce  and 
Separation,  III.  d. 

Of  wife,  as  affecting  right  to  alimony,  see 
Divorce  and  Seiparatign,  79. 

Threat  of,  as  duress,  see  Duress,  8-15. 

Liability  for  false  imprisonment,  see  False 
Imprisonment. 

Definition  of,  see  False  Imprisonment,  1. 

Abandonment  of  homestead  by,  see  Home- 
stead, 36. 

Jurisdiction  of  justice  of  the  peace  of  of- 
fenses punishable  by,  see  Justice  of 
THE  Peace,  6. 

Enforcing  payment  of  license  and  occupa- 
tion taxes  by,  see  License,  130. 

For  violation  of  statute  forbidding  taking 
of  usury,  see  Usury,  37. 


IMPRISONMENT   FOR    DEBT. 

Commitment    for    contempt    as,    see    Con- 
tempt, 110,  111. 

1.  The  constitutional  provision  against 
imprisonment  for  debt  is  not  violated  by 
Ga.  Acts  1903,  p.  90,  making  it  punishable 
for  any  person  to  procure  money  or  other 
thing  of  value  on  a  contract  to  perform  serv- 
ices, with  intent  to  defraud.  Banks  v. 
State,  2:  1007,  52  S.  E.  74,  124  Ga.  15. 

2.  A  finding  for  plaintiff  in  an  action  to 
recover  money  alleged  to  be  due  under  a 
partnership  transaction  does  not  necessarily 
establish  fraud^^  so  as  to  authorize  defend- 
ant's imprisonment  for  the  debt,  although 
fraud  was  alleged  in  the  complaint,  where 
there  was  evidence  of  matters  showing  sim- 
ply an  obligation,  arising  out  of  them,  to 
pay  over  the  money.  Ledford  v.  Emerson, 
10:  362,  55  S.  E.  969,  143  N.  C.  527. 

3.  Fraud  must  be  found  by  the  jury, 
and  a  judgment  entered  in  conformity  there- 
with, to  warrant  imprisonment  for  debt,  un- 
der a  constitutional  provision  that  there 
shall  be  no  imprisonment  for  debt  except 
in  cases  of  fraud.  Ledford  v.  Emerson,  10: 
362,  55  S.  E.  969,  143  N.  C.  527. 

4.  Surrender  by  his  sureties  will  not 
legalize  the  imprisonment  of  one  who  was 
not  originally  liable  to  arrest.  Ledford  v. 
Emerson,  10:  362,  55  S.  E.  969,  143  N.  C. 
527. 

5.  Fines  or  penalties  arising  from  a 
violation  of  the  penal  laws  of  the  state,  or 
city  or  village  ordinances,  are  not  debts 
within  the  meaning  of  our  constitutional 
provision  prohibiting  imprisonment  for  debt. 
Peterson  v.  State,  14:  292,  112  N.  W.  306, 
79  Neb.  132. 

6.  A  statute  authorizing  imprisonment 
of  one  who  obtains  food  and  lodging  with- 
out paying  therefor,  with  intent  to  defraud, 
or  who,  after  obtaining  it,  absconds  without 
paying  for  it,  does  not  contravene  a  consti- 
tutional provision  forbidding  imprisonment 
for  debt.  Re  Milecke,  21 :  259,  100  Pac.  743, 
52  Wash.  312.  (Annotated) 
Digest   1-52  I<.R.A.(N.S.) 


7.  A  statutory  provision  for  imprison- 
ment of  one  who,  after  receiving  advances 
under  a  contract  to  perform  farm  labor, 
wilfully  and  without  just  cause,  fails  to  per- 
form the  reasonable  service  required  by  his 
contract,  violates  a  constitutional  provision 
against  imprisonment  for  debt  except  in 
cases  of  fraud.  Ex  parte  Hollman,  21:  242, 
60  S.  E.  19,  79  S.  C.  9. 

8.  Wilful  and  unjust  refusal  to  comply 
with  the  terms  of  a  contract  to  perform 
services  is  not  legal  fraud  within  the  mean- 
ing of  an  exception  to  a  constitutional  pro- 
vision forbidding  imprisonment  for  debt  ex- 
cept in  case  of  fraud.  Ex  parte  Hollman, 
21:  242,  60  S.  E.  19,  79  S.  C.  9.  (Annotated) 


IMPROPER   TREATMENT. 

EflFect    of,    on    liability    for    homicide,    see 
Homicide,  55,  56. 


IMPROVEMENT  BONDS. 

See  Bonds,  75,  77,  78,  85,  100,  105,  106. 


IMPROVEMENT  OF  NAVIGATION. 

Construction  of  dam  for,  as  public  use,  see 
Eminent  Domain,  61. 

Right  to  compensation  for  mill  dams  re- 
moved in,  see  Eminent  Domain,  241. 


IMPROVEMENTS. 


Assignment  of  contract  for,  see  Assign- 
ment, 17. 

By  cotenant,  see  Cotenancy,  8-10. 

Recovery  for,  in  eminent  domain  proceed- 
ings, see  Damages,  529-531. 

Right  of  widow  of  cotenant  to  dower  in 
improvements  made  by  husband,  see 
Dower,  3. 

Allowance  for,  in  ejectment,  see  Ejectment, 
24-28. 

Retaining  jurisdiction  to  settle  amount  of 
allowance  for,  see  Equity,  116. 

Escheat  of  railroad  property  for  delay  in 
improvement,  see  Escheat,  11. 

Estoppel  bv  permitting,  see  Estoppel,  III. 
g,  2,  b. 

Parol  evidence  of  agreement  for,  see  Evi- 
dence, 948. 

Right  of  devisee  to  completion  of,  at  ex- 
pense of  estate,  see  Executors  and 
Administrators,  45. 

Money  loaned  by  vendor  to  vendee  to  im- 
prove property  as  purchase  money,  see 
Homestead,  27. 

Joint  liability  of  husband  and  wife  for,  see 
Husband  and  Wife,  49. 


IMPUTED  NEGLIGENCE— INCITEMENT. 


1469 


Eight  of  one  contracting  void  marriage  in 
good  faith  to  recover  for  improvements 
on  land  belonging  to  supposed  wife,  see 
Husband  and  Wife,  52. 

Husband's  right  to  reimbursement  from 
wife's  estate  of  money  used  for,  see 
Husband  and  Wife,  56. 

Promise  by  landlord  to  pay  tenant  for,  see 
Contracts,  85,  86. 

Presumption  as  to  tenant's  right  to  remove, 
see  Evidence.  646. 

Evidence  as  to  landlord's  liability  for  lum- 
ber used  by  tenant  in  making,  see  Evi- 
dence, 1847,  1994. 

Evidence  on  question  of  right  of  tenant  to, 
see  Evidence,  1998. 

Covenant  as  to,  in  lease,  see  Landlord  and 
Tenant,  26,  31-34. 

Right  of  tenant  to  remove,  see  Landlord 
AND  Tenant,  III.  b. 

Who  must  pay  tax  on  improvements  re- 
movable by  tenant,  see  Taxes,  257. 

Effect  of  making,  on  right  to  revoke  license, 
see  License,  32. 

Liability  orf  life  tenant  for,  see  Life  Ten- 
ants, III. 

Liens  for,  see  Mechanics'  Liens. 

By  mortgagee  in  possession,  see  Mortgage, 
27. 

Right  of  owner  of  improvements  to  main- 
tain action  for  injury  to  property,  see 
Parties,  20. 

Promises  as  to,  by  agent  selling  land,  see 
Principal  and  Agent,  53. 

Public  improvements,  see  Drains  and  Sew- 
ers; Highways,  III.;  Public  Improve- 
ments. 

As  part  performance  of  oral  agreement,  see 
Specific  Performance,  49,  51,  52. 

Effect  of,  to  give  right  to  specific  perform- 
ance of  contract  to  convey,  see  Specific 
Performance,  51,  93. 

Rescission  of  land  contract  for  breach  of 
vendor's  covenant  to  make,  see  Vendor 
and  Purchaser,  66. 

1.  No  claim  under  the  Citerment  act 
allowing  compensation  to  one  making  im- 
provement to  real  estate  held  adversely  un- 
der color  of  title  can  arise  by  acquiring  a 
color  of  title  to  land  upon  which  permanent 
improvements  have  already  been  placed 
without  claim,  right,  or  title  thereto.  Mc- 
Kenzie  v.  Gussner,  37:  918,  134  N.  W.  33,  22 
N.  D.  445. 

AlloTirance  for,  to  purchaser. 
Recovery  of  value  of,  by  grantee  upon  breach 
of  covenant  of  title,  see  Damages,  137. 
Allowance    for,    in    ejectment,    see    Eject- 
ment, 24-28. 
Right  to,  of  one  purchasing  real  estate  of 
minor,  upon  disaffirmance,  see  Infants, 
82. 
Right  of  purchaser  at  mortgage  foreclosure 
to  compensation  for,  where  foreclosure 
is  set  aside,  see  Mortgage,  141. 
Liability    for,    of    conditional    vendor    re- 
claiming property,  see  Sale,  153. 
Right  of  purchaser   at   illegal  tax  sale  to 
compensation  for,  see  Taxes,  239,  240. 
Recovery    for,    on    rescission    of    land    con- 
tract, see  Vendor  and  Purchaser,  59. 
Digest  1-52  L.R.A.(N.S.) 


IMPUTED  NEGLIGENCE. 

See  Negligence,  II.  e. 


♦-*♦ 

IMPUTED  NOTICE. 

See  Notice,  II. 

■»  «  »  — 

INANIMATE    PROPERTY. 

Title   to    escaped    inanimate   property,    see 
Adjoining  Landowners. 


IN   CAMERA. 

Taking  evidence  in  camera,  see  Secbets. 


INCEST. 

Evidence  in  prosecution  for,  see  Evidence, 
714,  1398,  1516,  1926. 

Evidence  of  other  similar  acts,  see  Evi- 
dence, 1907-1909. 

Compelling  witness  to  testify  as  to  incestu- 
ous relations  between  herself  and 
father,  see  Witnesses,  134. 

Contradiction  or  impeachment  of  prosecut- 
ing witness,  see  Witnesses,  155,  180, 
181. 

1.  Relationship  by  consanguinity  is 
necessary  to  bring  persons  within  the  pro- 
visions of  a  statute  providing  for  the 
punishment  of  sexual  intercourse  between 
uncle  and  niece,  where  the  limitations  on 
marriage  are  confined  to  kindred;  and  such 
intercourse  between  a  man  and  the  daugh- 
ter of  his  wife's  sister  is  therefore  not 
punishable  under  the  statute.  State  v. 
Tucker,  31:  772,  93  N.  E,  3,  174  Ind.  715. 

( Annotated ) 


INCIDENTAL  DANGERS. 

Assumption    of   risk    of,    see   Masteb   and 
Servant,  II.  b,  2. 


INCINERATING   PLANT. 

Contraction   of   debt   for,   by   municipality, 
see  Municipal  Corporations,  275. 


INCITEMENT. 


To  commit  assault,  see  Assault  and  Bat- 
teey,  21. 


1460 


INCLEMENT  WEATHER— INCOMPETENT  PERSONS. 


INCLEMENT  WEATHER. 

Exposure    of    passenger    to,    see    Carbiebs, 
208. 


INCOME. 

As    distinguished    from    capital,    see    Life 

Tenants,  II.  b. 
Right  of  judgment   creditor  of  life  tenant 

to   income   from   life   estate,   see   Life 

Tenants,  2. 
Right  of  purchaser  on   foreclosure  to,   see 

MOBTGAGE,  124. 
Gift  of,  by  will,  see  Wills,  268,  269. 


INCOME  TAX. 


Sufficiency  of  title  of  statute  providing  for, 

see  Statutes,  107. 
In  general,  see  Taxes,  VI. 


INCOMPETENT  PERSONS. 

I.  Who     are;     inquisition;     adjudi- 
cation,   1—4. 
II.  Contracts;   deeds,    5—15. 
III.  Torts,  16. 

IV.  Confinement;   support   in   asylum, 
17-25. 
V.  Suits  hy  or  against,  26—30. 
VI.  Pouters  of  committee  and  adtninis- 
tration  of  estate,  31—4:1. 

Insanity  of  conductor  as  Act  of  God  excus- 
ing carrier  for  loss  of  property,  see 
Act  of  God,  1. 

Maintenance  by  parent  of  adult  child  of 
unsound  mind  as  an  advancement,  see 
Advancements,   1,  2. 

Duty  of  court  where  juror  becomes  insane 
pending  trial,  see  Appeal  and  Ebbob, 
1482. 

Effect  of  insanity  and  disappearance  of 
principal  to  release  surety  on  bail  bond, 
see  Bail  and  Recognizance,  18. 

Abuse  of  passenger  by  insane  conductor,  see 
Cabriers,  133;  Damages,  263. 

Fright  of  passenger  by  lunatic  on  train,  see 
Carriers,  217. 

Attempt  to  deprive  one  accused  of  crime  of 
defense  of  insanity,  see  Constitution- 
al Law,  581. 

Due  process  as  to,  see  Constitutional 
Law,  597-603. 

Compelling  contribution  from  incompetent 
cotenants,  see  Cotenancy,  10. 

Trial  of  insane  person  as  former  jeopardy, 
see  Criminal  Law,  182. 

Abandonment  by,  as  ground  for  divorce,  see 
Divorce  and  Separation,  45. 

Expense  incurred  in  securing  appointment 
of  guardian  for  husband  as  element  to 
be  considered  in  awarding  alimony  to 
wife,  see  Divorce  and  Separation,  113. 

Digest  1-52  L.R.A.(N.S.) 


Presumption  and  burden  of  proof  as  to  in- 
sanity, see  Evidence,  II.  e,  5. 

Presumption  of  continuance  of  insanity,  see 
Evidence,  319. 

Sufficiency  of  presumijtion  of  sanity  to  sup- 
port conviction,  see  Appeal  a.nu  Eruob, 
930. 

Opinion  evidence  as  to  insanity,  see  Evi- 
dence, VII.  e. 

Review  of  discretion  as  to  competency  of 
experts  to  testify  as  to  mental  capac- 
ity, see  Appeal  and  Error,  013. 

{Evidence  as  to  insanity,  generally,  see  Evi- 
dence, XI.  d. 

Admissibility  of  evidence  as  to  grantor's 
mental  capacity,  see  Estoppel,  25. 

Admission  of  incompetent  evidence  as  to 
sanity  of  defendant  in  divorce  suit,  see 
Appeal  and  Error,  1115. 

Admissibility  of  evidence  of  one  mentally 
weak,  see  Evidence,  1271. 

Admissibility,  in  wife's  suit  for  divorce,  of 
statements  by  husband,  for  whom  ap- 
pointment of  guardian  is  sought,  as  to 
her  adultery,  see  Evidence,  1311. 

Admissibility  of  testimony  of  accused  on 
former  trials  in  rebuttal  of  defense  of 
insanity,  see  Evidence,  1927. 

Sufficiency  of  evidence  as  to  insanity,  see 
Evidence,  2220-2225,  2358-2361. 

Insanity  of  personal  representative,  see  Ex- 
ecutors and  Administrators,  17,  18. 

Right  to  show  insanity  of  accused  in  pro- 
ceedings for  extradition,  see  Extradi- 
tion, 4. 

Loan  to,  see  Fraud  and  Deceit,  16. 

Mental  incapacity  as  excuse  for  failure  to 
give  notice  of  injury  required  as  con- 
dition of  municipal  liability,  see  High- 
ways, 394. 

Sale  of  homestead  by  one  spouse  during  in- 
sanity of  other  spouse,  see  Homestead, 
35. 

Effect  on  homestead  of  wife's  insanity  dur- 
ing husband's  imprisonment,  see  Home- 
stead, 36. 

Estoppel  to  claim  homestead,  see  Estoppel, 
39,  82. 

Effect  of  defense  of  insanity  to  charge  of 
murder  to  admit  grade  of  offense 
charged,  see  Homicide,  1. 

Murder  while  interfering  in  aid  of,  see 
Homicide,  45. 

Hospital  for  insane  as  nuisance,  see  Courts, 
156;  Municipal  Corporations,  152. 

Requiring  permit  for  location  of  insane 
asylum  within  city  limits,  see  Munici- 
pal Corporations,  215. 

Creation  by  special  act  of  state  hospital 
for  insane,  see  Statutes,  154. 

As  to  infants,  see  Infants. 

Suicide  by  insured  while  insane,  see  Insub- 
ance,  VI.  b,  2,  c. 

Insanity  of  member  of  benefit  society  as 
excuse  for  nonpayment  of  dues,  see  In- 
surance, 403,  404. 

Burning  of  property  by  insured  while  in- 
sane, see  Insurance,  695. 

Recovery  on  insurance  policy  for  mental  de- 
rangement resulting  from  accident,  gee 
Insurance,  752. 


INCOMPETENT  PERSONS,  I.,  II. 


1461 


Fraud   in   securing  annulment  of  marriage 

with   incompetent,  see  Judgment,   379. 
Annulment   of  marriage  of,   see  Marriage, 

30,  31,  42,  4G-48. 
Insanity    of    defendant    in   divorce   case    as 

ground  for  new  trial,  see  Netw  Trial,  6. 
As  ground   for   dissolution   of  partnership, 

see  Partnership,  65-67. 
Sufficiency  of  allegation  as  to  knowledge  of 

insanity,  see  Pleading,  7. 
Pledge    of    property    of    incompetent,    see 

Pledge  and  Collateral  Security,  16. 
Right  to   inspect   records   of   public   insane 

asylum,   see   Records   and   Recording 

Laws,  7. 
Exemption  from  taxation  of  institution  for, 

see  Taxes,  96. 
Effect  of  insanity  to  relieve  from  duty  of 

paying  tax,  see  Taxes,  261. 
Demurrer  to  evidence  on  question  of  legal 

incapacity,  see  Trial,  794. 
Insanity   as   question   for  jury,   see   Trial, 

238-241. 
Instructions  as  to  sanity  in  criminal  case, 

see  Trial,  908,  914,  915,  918. 
Instruction  as  to  disposal  of  case  if  accused 

is  found  to  be  insane,  see  Trial,  1087. 
Testamentary   capacity,   see  Wills,   I.  d. 
Election  for  insane  widow  as  between  legacy 

and  dower,  see  Wills,  352,  360-362. 
Impeaching  prosecuting  witness  by  showing 

that   she   was   suffering   from   hysteria 
i         at   time    of    alleged   offense,    see   Wit- 
nesses, 142. 
Competency  of  witnesses,  see  Witnesses,  I. 

I.  Who  are;  inquisition;  adjudication. 


(See  also  same  heading  in  Digest  L.R.A. 
1-tO.) 

'What  constitntes  incompetency. 

Competency  to  commit  crime,  see  Criminal 
Law,  I.  b. 

Opinion  evidence  as  to  sanity,  see  Evidence, 
VII.  e. 

Evidence  as  to  insanity  generally,  see  Evi- 
dence, XI.  d. 

Evidence  to  show  incapacity  of  testator,  see 
Evidence,  1458. 

Sufficiency  of  evidence  as  to  Sanity,  see  Evi- 
dence, 2220-2225,  2358-2361. 

Aa  to  married  woman,  see  Husband  and 
Wife. 

As  to  Indians,  see  Indians. 

As  to  infants,  see  Infants. 

Testamentary  capacity,  see  Wills,  I.  d. 

1.  That  a  mere  clerk  without  funds  to 
pay  for  a  large  block  of  stock  that  he  has 
purchased  forges  his  employer's  checks, 
■with  the  knowledge  that  the  forgery  must 
be  detected  in  a  very  short  time,  is  evidence 
of  insanity,  rather  than  of  sanity.  State 
V.  Brown,  24:  545,  102  Pac.  641,  36  Utah,  46. 

2.  The  fact  that  a  man  seventy-six 
years  of  age  desires  to  marry  is  not  suffi- 
cient ground  for  the  appointment  of  a 
guardian  of  his  property.  Hogan  v.  Leeper, 
47:  475,  133  Pac.  190,  37  Okla.  655. 

(Annotated) 

3.  Evidence  that  one  bore  a  good  rep- 
Digest  1-52  L.R.A.(N.S.) 


1  utation  as  a  quiet  and  peaceable  citizen  is 
j  not  necessarily  incompatible  with  evidence 
that  he  was  unsound  of  mind  as  manifested 
at  intervals.  State  v.  Rumble,  25:  376,  105 
Pac.  1,  81  Kan.  16. 
Inquisition  and  proceedings. 
Statute   prescribing   rules   of   evidence,   see 

Constitutional  Law,  624. 
Voluntary   dismissal   of   statutory   proceed- 
ing in  nature  of  writ  of  inquirendo  de 
Innatico,  see  Dismissal  or  Discontin- 
uance, 2. 
Admissibility  in  evidence  of  record  of  luna- 
cy proceedings,  see  Evidence,  773,  774. 
Review   of,  on   habeas   corpus,   see  Habeas 

Corpus,  51-53. 
Collateral  attack  on  validity  of  lunacy  pro- 
ceedings, see  Judgment,  132. 
Conclusiveness  as  against  third  persons  of 
findings   on   inquisition   of   lunacy,   see 
Judgment,  246. 
Right  to  have  question  of  sanity  tried  by 
jury,  see  Jury,  9,  29,  53. 
4.  The  finding  upon  inquisition  that  one 
is  an  idiot  and  incompetent  to  manage  his 
own  affairs,  and  the  appointment  of  a  com- 
mittee for  him,  is  not  conclusive  that  he  is 
not  a  competent  witness  at  a  time  several 
years    later,   but   he   may   be   permitted   to 
testify,  if  upon  questioning,  he  appears  to  be 
competent  to  do  so.     Barker  v.  Washburn, 
34:  159,  93  N.  E.  958,  200  N.  Y.  280. 
Adjudication. 

Privilege  from  arrest  of  one  adjudged  in- 
sane by  state  court,  while  he  is  within 
the  state  as  a  suitor  in  a  Federal  court, 
see  Courts,  247,  248. 
Conclusiveness  of  decision  against  accused 
on  special  issue  as  to  insanity,  see 
Judgment,  89. 

II.  Contracts;  deeds. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Powers  of  committee,  see  infra,  VI. 

Validity  of  note  by  intoxicated  person,  see 
Bills  and  Notes,  13-16,  151. 

Validity  of  contract  with  drunken  person, 
see  Drunkenness,  1. 

Amount  of  recovery  against  one  reselling 
property  obtained  from,  see  Damages, 
326. 

Opinion  evidence  as  to  competency  to  exe- 
cute, see  Evidence,  VII.  e. 

Right  of  one  lending  money  to,  as  against 
vendor  of  real  estate  in  which  money  is 
invested,  see  Fraud  and  Deceit,  16. 

Contracts  of  married  women,  see  Husband 
AND  Wife,  I.  b,  2. 

Contracts  of  infants,  see  Infants,  I.  d,  2. 

Mental  capacity  of  insured  assigning  policy, 
see  Insurance,  452. 

Extension  of  lease  by  incompetent  lessor, 
see  Landlord  and  Tenant,  45. 

Rights  of  bank  accepting  collateral  from 
insane  stranger,  see  Pledge  and  Col- 
lateral Security,  16, 

Subrogation  of  one  lending  money  to  insane 
person  which  is  invested  in  real  estate, 
see  Subrogation,  8. 


1462 


INCOMPETENT  PERSONS,  III. 


Instruction  in  action  to  recover  for  legal 
services  to  insane  person,  see  Trial, 
1012. 

Ck)nversion  by  inducing  incompetent  person 
to  draw  check,  see  Tboveb,  19. 

5.  Although  a  person's  mind  may,  to 
some  extent  be  impaired  by  age  or  disease 
his  acts  will  be  valid  if  he  has  capacity  to 
comprehend  and  act  rationally  in  the  trans- 
action in  which  he  is  engaged,  t.  e.,  if  he  can 
understand  the  nature  of  his  business  and 
the  effect  of  what  he  is  doing,  and  can  ex- 
ercise his  will  with  reference  thereto.  Mar- 
tin V.  Harsh,  13:  1000,  83  N.  E.  164,  231  111. 
384. 

6.  One  may  make  a  contract  who  has 
ability  to  understand  the  nature  of  the  act 
in  which  he  is  engaged,  and  its  scope  and 
effect,  or  its  nature  and  consequences. 
Sprinkle  v.  Wellborn,  3:  174,  52  S.  E.  666, 
140  N.  C.  163.  (Annotated) 

7.  An  attorney  may  recover  compensa- 
tion for  services  rendered  to  assist  a  per- 
son committed  to  an  institution  as  in- 
sane, to  secure  his  release  therefrom,  as 
for  necessaries,  if  they  were  faithfully  and 
intelligently  performed,  although  they  may 
not  have  been  successful.  Re  Freshour,  45: 
67,  140  N.  W.  517,  174  Mich.  114. 

(Annotated) 

8.  A  mortgage  may  be  enforced  against 
one  who,  at  the  time  it  was  executed  by  him- 
self and  his  wife,  was  in  fact  insane,  but 
who  had  not  been  so  adjudged,  to  take  up 
a  prior  purchase-money  mortgage  on  his 
property,  by  a  mortgagee  having  no  knowl- 
edge of  the  insanity,  either  actual  or  con- 
structive. National  Metal  Edge  Box  Co.  v. 
Vanderveer,  42:  343,  82  Atl.  837,  85  Vt.  488. 

(Annotated) 

9.  One  under  guardianship  as  an  ha- 
bitual dnmkard  is  not  capable  of  giving  his 
valid  consent  to  the  conveyance  of  proper- 
ty which  has  been  placed  in  trust  for  him, 
and  which  may  be  conveyed  by  the  trus- 
tees with  his  consent.  Philadelphia  Trust, 
S.  D.  &  Ins.  Co.  V.  Allison,  39:  39,  80  Atl. 
833,  108  Me.  326. 

Deeds. 

Accounting  on  trial  of  suit  to  cancel  deed 
made  in  drunkenness,  see  Accounting, 
4. 
Prematurity  of  suit  to  set  aside  deed  by, 

see  Action  or  Suit,  14. 
Condition  precedent  to  action  to  set  aside 

deed,  see  Action  or  Suit,  15. 
Cancellation  of  deed,   see  Contracts,   755, 

756,  759. 
Estoppel  to  deny  validity  of  deed,  see  Es- 
toppel, 140. 
Evidence  as  to  undue  influence  in  securing 

execution  of  deed,  see  Evidence,  284, 
Competency  of  witness  as  to  undue  influ- 
ence, see  Witne:sses,  53. 
10.  A  person,  however  old,  so  long  as 
he  retains  appreciation  of  his  possessions 
and  relations  to  others,  may  dispose  of  his 
property  in  any  lawful  way  he  sees  fit,  and 
regardless  of  whether  his  children  or  any 
one  else  mav  be  pleased  therewith.  Board- 
Digest  1-52  I<.R.A.(N.S.) 


man  v.  Lorentzen,  52:  476,   145  N,  W.  750, 
155  Wis.  5GG. 

11.  If  a  person  makes  a  disposition  of 
his  property  in  contemplation  of  death  and 
survives  for  a  considerable  period  there- 
after in  such  mental  condition  as  to  appre- 
ciate what  he  has  done,  and  gives  no  sign 
that  such  disposition  was  not  his  free  in- 
telligent act,  such  circumstances  are  strong- 
ly evidentiary  of  a  disposition  free  from 
undue  influence  or  incompetency.  Board- 
man  v.  Lorentzen,  52:  476,  145  N.  W.  750, 
155  Wis.  566. 

12.  To  have  capacity  to  make  a  deed, 
one  must  have  ability  to  transact  ordinary 
business,  which  includes  mental  strength  to 
compete  with  an  antagonist,  and  under- 
standing to  protect  one's  own  interests. 
Greene  v.  Maxwell,  36:  418,  96  N,  E.  227, 
251  111.  335. 

13.  A  deed  of  an  insane  person  to  one 
who  has  knowledge  of  the  grantor's  inca- 
pacity, and  who  gives  no  substantial  con- 
sideration for  the  property,  is  a  nullity, 
and  does  not  revoke  a  valid  will  previous- 
ly made  by  the  grantor.  Bethany  Hospi- 
tal Co.  V.  Philippi,  30:  194,  107  Pac.  530, 
82  Kan.   64. 

14.  A  deed  by  an  incompetent  person  may 
be  avoided  in  an  action  at  law  to  recover 
possession  of  the  granted  premises,  since, 
being  incapable  of  giving  assent,  no  valid 
contract  has  been  effected.  Smith  v.  Ryan, 
19:  461,  84  N.  E.  402,  191  N.  Y.  452. 

( Annotated ) 

15.  One  who  has  been  adjudged  incom- 
petent cannot,  even  during  a  lucid  interval, 
execute  a  valid  deed  dealing  with  or  dispos- 
ing of  his  property,  so  long  as  the  inqui- 
sition has  not  been  superseded,  but  contin- 
ues in  force,  although  he  may  make  a  will, 
and  although  the  deed  is  only  to  take  effect 
upon  his  death.  Re  Walker,  4  B.  R.  C.  432, 
[1905]  1  Ch.  160.  Also  Reported  in  74 
L.  J.  Ch.  N.  S.  86,  53  .Week.  Rep.  177,  91 
L.  T.  N.  S.  713.  (Annotated) 

///.  Torts. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Evidence  on  question  of  measure  of  re- 
straint which  parent  should  have  exer- 
cised over  adult  son  mentally  incom- 
petent, see  Evidence,  1774. 

Liability  of  parent  having  custody  of  adult 
son  who  is  mentally  incompetent  for 
torts  of  latter,  see  Parent  and  Child, 
19. 

16.  An  adjudged  lunatic  for  whose  bene- 
fit his  committee  has  purchased  an  auto- 
mobile is  not  liable,  either  personally  or  in 
estate,  for  injury  inflicted  upon  a  stranger 
by  the  negligence  of  the  chauffeur  in  the 
operation  of  the  machine  out  of  the  presence 
and  without  the  authority  of  the  lunatic. 
Gillet  V.  Shaw,  42:  87,  83  Atl.  394,  117  Md. 
508.  (Annotated) 


INCOMPETENT  PERSONS,  IV.,  V. 


1463 


IV.  Confinement ;  support  in  asylum. 

Liability  of  hospital  for  negligence  result- 
ing in  suicide  of  insane  patient,  see 
Charities,  80. 

Liability  of  state  lunatic  asylum  for  acts 
of  employees,  see  Charities,  90-93. 

Imprisonment  of  insane  person  acquitted  of 
crime,   see  Constitutional  Law,   568. 

Due  process  of  law  as  to,  see  Constitution- 
al Law,  597-603. 

Statute  prescribing  rules  of  evidence,  see 
Constitutional  Law,  624. 

Police  power  as  to,  see  Constitutional 
Law,  750. 

Sentence  and  imprisonment  of  insane  crimi- 
nal, see  Criminal  Law,  232-236,  242, 
262,  547,  568,  569,  750. 

CJommitment  of  insane  criminals,  see  Con- 
stitutional Law,  602,  603. 

Admissibility  of  order  committing  person  to 
insane  asylum,  see  Evidence,  736. 

Habeas  corpus  to  secure  release,  see  Habeas 
Corpus,  1,  51-53. 

Negligence  in  permitting  incompetent  per- 
son to  leave  hospital  unattended,  see 
Hospitals,  8. 

Injunction  against  receiving  of  insane  per- 
sons into  unlicensed  hospitals  in  vio- 
lation of  statute,  see  Injunction,  172. 

Retroactive  effect  of  statute  as  to  liberation 
of  insane  criminals,  see  Statutes,  309. 

See  also  supra,  7. 

17.  The  detention  of  an  insane  person 
in  an  asylum  except  under  proceedings  by 
virtue  of  a  valid  statute  can  be  justified 
only  on  the  ground  that  it  is  best  for  the 
care  of  such  inmate,  or  that  it  would  be 
dangerous  for  her  to  be  at  large.  Ex  parte 
Dagley,  44:  389,  128  Pac.  699,  35  Okla.  180. 

18.  An  order  of  a  probate  judge,  when 
exercising  a  special  and  limited  jurisdiction 
under  statutory  authority,  in  committing  a 
person  to  an  insane  hospital,  must,  in  order 
to  be  valid,  show  that  the  jurisdictional 
facts  existed.  Re  Allen,  26:  232,  73  Atl. 
1078,  82  Vt.  365. 

19.  A  statute  providing  for  an  appeal 
from  the  commitment  of  a  person  to  a  hos- 
pital for  the  insane  on  a  certificate  of  physi- 
cians does  not  apply  to  a  commitment  by 
the  probate  court  acting  as  a  court  of  in- 
quiry. Re  Allen,  26:  232,  73  Atl.  1078,  82 
Vt.  365. 

20.  A  statute  which  provides  that  every 
patient  admitted  to  a  public  hospital  for 
the  insane  shall  have  all  reasonable  oppor- 
tunities for  communicating  with  his  or  her 
friends  does  not  confer  upon  an  attorney  the 
right  to  invade  the  hospital  in  a  merely 
professional  capacity,  for  the  purpose  of  see- 
ing and  talking  with  patients  who  have  sent 
him  word  that  they  are  of  sound  mind  and 
desire  him  to  secure  their  discharge.  Han- 
son V.  Riddle,  34:  1028,  115  Pac.  639,  84  Kan. 
877. 

21.  An  unconditional  discharge  of  a 
patient  by  the  authorities  of  a  state  hospital 
puts  an  end  to  his  judicial  commitment 
thereto,  in  the  absence  of  a  statute  on  the 
Bubject;  and  his  confinement  by  them  after- 
Digest  1-52  L.R.A.(N.S.) 


wards  without  judicial  proceedings,  when 
not  from  temporary  necessity,  is  illegal. 
Byers  v.  Solier,  14:  468,  93  Pac.  59,  16  Wyo. 
232.  (Annotated) 

Liability  for  support. 
Making   estates   of,   liable   for   maintenance 

in  state  hospital,  see  Constitutional 

Law,  194;  Taxes,  9. 

22.  A  constitutional  provision  that  in- 
stitutions for  the  benefit  of  the  insane  shall 
be  fostered  and  supported  by  the  state,  sub- 
ject to  such  regulations  as  may  be  pre- 
scribed by  law,  does  not  prevent  legislation 
making  the  estates  of  persons  committed  to 
the  state  hospital  for  the  insane  liable  for 
the  cost  of  their  maintenance  while  therein. 
Kaiser  v.  State,  24:  295,  102  Pac.  454,  80 
Kan.  364.  (Annotated) 

23.  Under  a  statute  providing  that  if  the 
probate  court  shall  find  that  a  person  ad- 
judged insane  has  sufficient  means  for  his 
maintenance  and  that  of  his  family,  with- 
out impoverishment,  it  shall  order  his 
guardian  to  pay  for  his  maintenance  while 
in  the  state  hospital  for  the  insane,  out  of 
his  estate,  the  state  may  recover  for  his 
maintenance  for  any  period  during  his  con- 
finement therein  during  which  he  was  pos- 
sessed of  means  not  needed  for  the  sup- 
port of  anyone  dependent  upon  him.  Kaiser 
v.  State,  24:  295,  102  Pac.  454,  80  Kan.  364. 

24.  The  fact  that  the  probate  court 
found  that  a  person  adjudged  insane  was 
without  sufficient  means  for  his  support, 
and  ordered  that  his  maintenance  while  in 
the  state  hospital  for  the  insane,  should  be 
at  state  expense,  does  not  constitute  an 
adjudication  against  the  right  of  the  state 
to  charge  the  estate  of  such  person,  after 
his  decease,  with  the  cost  of  such  mainte- 
nance. Kaiser  v.  State,  24:  295,  102  Pac. 
454,  80  Kan.  364. 

25.  The  statutory  right  of  the  state  to 
recover  for  the  maintenance  of  a  person 
committed  to  the  state  hospital  for  the  in- 
sane, from  his  estate  when  he  has  sufficient 
means  for  his  support  and  that  of  his 
family,  is  not  affected  by  the  fact  that  the 
form  of  commitment  prescribed  in  the  stat- 
ute directing  the  patient  to  be  received  and 
maintained  at  the  expense  of  the  county  or 
the  guardian  was  changed  in  a  revisi'on  of 
the  laws  to  read,  "at  the  expense  of  the 
state,"  as  such  words  mean  that  the  patient 
is  to  be  maintained  at  the  expense  of  the 
state,  as  distinguished  from  the  county,  sub- 
ject to  its  rights  of  reimbursement  when 
any  property  is  available  for  the  purpose. 
Kaiser  v.  State,  24:  295,  102  Pac.  454,  80 
Kan.  364. 

V.  Suits  hy  or  against. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  of  guardian  ad  litem  to  appeal  case 
to  court  of  last  resort,  see  Appeal  and 
Error,  87. 

Dismissal  of  action  commenced  by,  see  Dis- 
missal OR  Discontinuance,  10. 


1464 


INCOMPETENT  PERSONS,  VI. 


Election  for  insane  widow  against  will  of 
husband,  see  Equity,  13,  14. 

Action  to  set  aside  judgment  against,  see 
JUDGMFNT,  76,  330. 

Collateral  attack  on  judgment  against  in- 
sane person,  see  Judgment,  133. 

Vacation  of  judgment  against,  see  Judg- 
ment, 390,  396,  397. 

Allegations  as  to  right  to  sue  to  vacate 
judgment  against  incompetent,  see 
Pleading,  171. 

Limitation  of,  see  Limitation  of  Actions, 
II.  m. 

Mandamus  to  compel  court  to  permit  filing 
of  petition  for  appointment  of  guardian 
ad  litem,  see  Mandamus,  22. 

26.  An  insane  person  is  not  precluded 
by  a  statute  providing  that  a  person  who  is 
insane  at  the  time  a  right  of  action  accrues 
may  bring  such  action  within  a  designated 
time  after  the  removal  of  the  disability, 
from  proceeding  through  his  legally  ap- 
pointed guardian  during  his  incompetency, 
even  though  there  is  no  express  statutory 
provision  for  the  bringing  of  such  action 
during  the  existence  of  the  disability. 
Wirth  V.  Weigand,  35:  1103,  122  N.  W. 
714,  85  Neb.  115. 

27.  Under  a  statute  permitting  appoint- 
ment of  a  guardian  ad  litem  for  an  incom- 
petent person  when  it  is  deemed  expedient 
by  the  court,  such  guardian  may  be  ap- 
pointed for  one  seeking  to  annul  his  mar- 
riage upon  evidence  tending  to  show  mental 
incapacity.  Dunphy  v.  Dunphy,  38:  818,  119 
Pac.  512,  161  Cal.  380. 

28.  The  court  has  not  the  absolute  dis- 
cretion to  deny  in  limine  the  application 
of  the  next  of  kin  of  an  insane  person 
against  whom  a  divorce  has  been  granted 
without  notice  to  him,  as  required  by  stat- 
ute, for  appointment  of  a  guardian  ad  li- 
tem with  authority  to  maintain  a  suit  to 
set  aside  the  decree,  although  the  statute 
provides  that  a  guardian  "may  be"  appoint- 
ed in  such  cases.  State  ex  rel.  Happel  v. 
District  Court,  35:  1098,  99  Pac.  291,  38 
Mont.  166. 

29.  The  guardian  of  an  insane  person 
may  ^maintain  a  suit  to  quiet  a  title  which 
had  vested  in  his  ward  by  adverse  posses- 
sion. Freeman  v.  Funk,  46:  487,  117  Pac. 
1024,  85  Kan.  473. 

30.  An  adjudication  of  the  insanity  of 
a  judgment  debtor  does  not  render  dor- 
mant a  judgment  rendered  against  him 
before  such  adjudication,  and  the  guardian 
may  be  properly  substituted  as  defendant 
in  the  cause  in  which  the  judgment  was 
rendered.  Cooper  v.  Greenleaf,  35:  1090, 
114  Pac.  1086,  84  Kan.  499.         (Annotated) 

VI.  Powers  of  committee  and,  adm,inis- 
tration  of  estate. 

(See  also   same  heading  in  Digest  L.B.A, 

Right  of  guardian  of  insane  administrator 
to  letters  of  administration,  see  ExEC- 
UTTOBS  and  Administrators,  10. 

Digest  l-5Si  Ii.R.A.(N.S.) 


Election  between  dower  and  rights  under 
will  for  incompetent  widow,  see  Wills, 
352,  360-362. 

31.  One  renting  from  the  guardian  prop- 
erty belonging  to  an  insane  person  cannot 
hold  the  latter's  estate  liable  "or  injuries 
caused  by  breach  of  the  guardian's  promise 
to  make  repairs.  Reams  v.  Taylor,  8:  436, 
87  Pac.  1089,  31  Utah,  288.         (Annotated) 

32.  The  conservator  of  the  estate  of  one 
who  becomes  insane  after  executing  a  will 
which  bequeathed  money  and  securities  of  a 
certain  amount  to  specified  legatees,  subject 
to  a  contract,  by  which  he  had  placed  that 
amount  with  a  bank,  to  be  managed,  the 
income  to  be  paid  to  testator  on  demand, 
and  the  property  accounted  for  to  testator's 
estate  after  his  death,  has  no  authority  to 
demand  the  income,  so  as  to  adeem  the 
legacies,  if  it  is  not  necessary,  either  for  the 
conservation  of  the  estate  or  the  support  of 
the  ward.  Wilmerton  v.  Wilmerton,  28: 
401,  176  Fed.  896,  100  C.  C.  A.  366. 

( Annotated ) 

33.  The  court  will  not  ratify  the  act  of 
the  committee  of  a  lunatic  in  investing  the 
trust  funds  in  the  bonds  of  a  private  cor- 
poration, after  the  corporation  has  become 
insolvent.  Com.  ex  rel.  Algeo  v.  Riley, 
44:  889,  75  Atl.  367,  226  Pa.  244. 

34.  A  committee  of  a  lunatic,  who  in- 
vests his  funds  in  bonds  of  a  private  cor- 
poration without  receiving  the  sanction  of 
the  court,  as  provided  by  statute,  must  bear 
the  loss  caused  by  the  insolvency  of  the 
corporation.  Com.  ex  rel.  Algeo  v.  Riley, 
44:  889,  75  Atl.  367,  226  Pa.  244. 

(Annotated) 
Appointment,   removal,   and    designa- 
tion. 
Who  may  appeal   from  refusal  to  appoint 
guardian,   see  Appeal  and  Error,  85, 
88. 

35.  The  county  court,  upon  notice  to  the 
party  proceeded  against,  has  power  to  find 
that  one  is  nan  compos  mentis,  and  to  ap- 
point a  committee  for  him.  Miller  v.  Ster- 
ringer,  25:  596,  66  S,  E.  228,  66  W.  Va. 
169. 

Authority  over  person  of  "trard. 

36.  The  •  committee  of  an  incompetent 
person  may,  where  such  person  lias  not  as- 
sumed to  exercise  intelligent  and  legal  voli- 
tion as  to  his  custody,  maintain  an  action 
for  false  imprisonment  against  one  who  un- 
lawfully takes  and  removes  his  ward  from 
his  custody,  or  that  of  those  with  whom  he 
has  temporarily  placed  him.  Barker  v. 
Washburn,  34=  i59,  93  N.  E.  958,  200  N.  Y. 
280. 

Sale  of  property;  ratification. 
See  also  supra,  9. 

37.  That  the  bond  of  a  guardian  to  whom 
a  license  for  the  sale  of  the  real  estate  of 
his  insane  ward  has  been  legally  issued 
was  approved  by  the  court  clerk,  to  whom 
the  district  judge  to  whom  it  was  made 
had,  upon  presentation  to  him,  while  oc- 
cupied with  other  matters,  and  without 
noting  its   nature,  directed  it  to  be  taken, 


INCONSISTENCY— INDEBTEDNESS. 


1465 


and  not  formally  by  sucli  judge  himself, 
will  not  render  a  sale  made  pursuant  to 
such  license  void  upon  collateral  attack 
under  a  statute  providing  that  every  guard- 
ian licensed  to  sell  real  estate  shall  give 
bond  to  the  judge  of  the  district  court, 
with  sufficient  surety  or  sureties,  "to  be 
approved  by  such  judge,''  at  least,  where 
the  sale,  which  was  for  full  value,  has  been 
confirmed  and  the  proceeds  duly  accounted 
for  by  the  guardian,  and  it  appears  that 
the  utmost  good  faith  characterized  the 
whole  transaction.  Buchanan  v.  Hunter, 
29:  147,  127  N.  W.  166,  87  Neb.  277. 

38.  Notice  to  an  insane  ward  of  an  ap- 
plication by  his  guardian  for  a  license 
to  sell  the  ward's  real  estate  for  the  pur- 
pose of  paying  his  debts  is  not  necessary, 
in  the  absence  of  statute,  in  order  to  render 
the  sale  valid,  as  such  a  sale  is  a  pro- 
ceeding in  rem,  and  not  adverse  to  the  in- 
terests of  the  ward.  Buchanan  v.  Hunter, 
29:  147,  127  N.  W.  166,  87  Neb.  277. 

(Annotated) 

39.  Notice  to  an  insane  ward  of  an  ap- 
plication by  his  guardian  for  a  license 
to  sell  the  ward's  real  estate  for  the  pur- 
pose of  paying  his  debts  is  not  required  by 
Neb.  Comp.  Stat.  1909,  chap.  23,  §  49,  pro- 
viding that  a  copy  of  the  order  "shall  be 
personally  served  on  the  next  of  kin  of  such 
ward  and  on  all  persons  interested  in  the 
estate."  Buchanan  v.  Hunter,  29:  147,  127 
N.  W.  166,  87  Neb.  277. 

40.  A  court  having  jurisdiction  to  ap- 
point a  guardian  for  an  habitual  drunkard 
may,  if  it  also  has  full  equity  powers,  au- 
thorize the  guardian  to  consent  to  the  con- 
veyance of  real  estate  situated  in  another 
state,  and  which  has  been  placed  in  trust 
for  the  ward  prior  to  his  becoming  incom- 
petent, with  authority  in  the  trustee  to 
convey  it  with  the  consent  of  the  bene- 
ficiary. Philadelphia  Trust,  S.  D.  &  Ins. 
Co.  v.  Allison,  39:  39,  80  Atl.  833,  108  Me. 
326.  (Annotated) 

41.  The  guardian  of  an  insane  person 
cannot  maintain  an  action  for  damages 
against  one  who  has  secured  a  conveyance 
of  real  estate  from  the  ward  for  an  inade- 
quate consideration,  where,  under  the  stat- 
ute, he  has  no  power  to  convey  the  ward's 
property  except  under  authority  of  the  pro- 
bate court,  since  recovery  of  damages  would 
amount  "to  an  indirect  ratification  of  the 
transaction,  which  is  beyond  the  power  of 
the  guardian.  King  v.  Sipley,  34:  1058,  131 
N.  W.  572,  166  Mich.  258.  (Annotated) 


INCONSISTENCY. 


Electioi|i  between  inconsistent  remedies,  sec 

Election  of  Remedies. 
Estoppel  by,  see  Estoppel,  III.  j. 
Inconsistent   testimony   in   second   suit,   see 

Evidence,  2052 :  New  Trial,  63. 
In  pleading,  see  Pleading,  I.  d. 
In  statute,  see  Statutes,  27. 
Between    general    and    special    verdict,    see 

Trial,  1132-1143. 
Digest  1-52  L.R.A.(N.S.) 


INCONTESTABILITY. 

Of  insurance  policy,  see  Insurance,  III.  e, 
2,  f. 


INCONVENIENCE. 

As  ground  for  refusing  injunction,  see  In- 
junction, 19-24. 


INCORPORATORS. 


Evidence   to  show  breach   of   trust   by,   see 

Evidence,  1672-1675. 
See  also  Corporations,  IV.  h. 


INCORPOREAL  RIGHTS. 

Condemnation  of,  see  Eminent  Domain,  29. 


INCREASE. 


Chattel  mortgage  on  increase  of  animals, 
see  Chattel  Mortgage,  19-21,  43. 

Of  capital  stock,  see  Corporations,  211,. 
265-268. 


INCREASES  HAZARD. 

To  insured,  see  Insurance,  III.  e,  1,  c;  VI. 
b,  3,  f. 


INCUMBRANCES. 

See  Encumbrances. 


INDEBITATUS. 


New  promise  to  remove  bar  of  limitations 
against  action  of  indebitatus  assump- 
sit, see  LaMiTATioN  of  Actions,  345. 

Indebitatus  count  for  goods  bargained  and 
sold  in  action  to  recover  purchase  price, 
see  Pleading,  256. 


INDEBTEDNESS. 


Of  county,  see  Counties,  II.  b. 
Of   municipality,   see  Municipal  Corpora- 
tions, II.  e. 
Of  school  district,  see  SCHOOLS,  56-58. 
Of  state,  see  State,  3-9. 
Of  township,   division   of,   as   affecting,   see 
Towns,  1,  2. 


1466 


INDECENCY— INDIANS. 


Sufficiency  of  vote  creating  bonded  indebt- 
edness of  corporation,  see  Corpoba- 
TIONS,   174. 


INDECENCY. 


As   ground    for    divorce,    see    Divorce   and 

Separation,  58. 
Sufficiency    of    indictment    for    getting    one 

into  indecent  position,  see  Indictment, 

ETC.,  39. 

1.  Persons  who,  in  pursuance  of  a  con- 
spiracy, get  a  man  in  an  indecent  and  com- 
promising situation  wi-h  a  woman  in  a  pub- 
lic place,  and  direct  the  attention  of  a  large 
concourse  of  persons  to  them,  thereby  mak- 
ing a  public  exhibition  of  their  indecent  and 
compromising  attitude,  are  within  the  pro- 
visions of  a  statute  which  provides  for  the 
punishment  of  any  person  who  shall  com- 
mit any  act  which  openly  outrages  the  pub- 
lic decency,  and  is  injurious  to  public  mor- 
als. State  V.  Waymire,  21:  56,  97  Pac.  46, 
52  Or.  281. 


INDEFINITE  DAMAGES. 

As  basis  for  equity  jurisdiction,  see  Equity, 
35. 


^♦» 


INDEFINITENESS. 

See  Definiteness. 

^>» 


INDEMNITY. 

Bonds  for,  see  Bonds,  II. 
In  general,  see  Contribution  and  Indem- 
nitt;  Insurance. 


INDEMNITY  FUND. 

Constitutionality  of  statute  creating  em- 
ployee's indemnity  fund,  see  Constitu- 
tional Law,  71,  135,  316-320,  467-469. 


INDEMNITY   INSURANCE. 

See  Insurance,  VIII. 


.  INDEPENDENT    CONTRACTORS. 

Evidence  on  question  whether  person  was 
acting  as,  see  Evidence,  1960. 

Liability  over,  to  employer,  see  Highways, 
324. 

Digest  1-52  L.R.A.(N.S.) 


Applicability  of  employers'  liability  insur- 
ance to  employees  of,  see  Insurance, 
923. 

Liability  of,  for  injuries,  see  Highways,  IV. 
b,  4;  Mastbir  and  Servant,  1057-1064. 

Liability  for  acts  of,  see  Highways,  176, 
290,  324;  Master  and  Servant,  III.  b. 

Who  are,  see  Master  and  Servant,  III.  b, 
3. 

Liability  of  master  for  injury  to  servants 
of,  see  Master  and  Servant,  472. 

Delegation  of  master's  duty  to,  see  Master 
AND  Servant,  733-735. 

Servants  of,  as  fellow  servants  of  employees 
of  general  employer,  see  Master  and 
Servant,  801. 

As  vice  principal,  see  Master  and  Servant, 
846. 

Sufficiency  of  allegation  as  to,  see  Plead- 
ing, 180. 


INDETERMINATE  SENTENCE. 
See  Criminal  Law,  261-264. 


INDEX. 

To  transcript  on  appeal,  see  Appeal  aito 

Error,  152. 
Of  case  made,  see  Appeal  and  Error,  220. 
Of  judgment,  see  Judgment,  III.  c. 
Of  record,  see  Officers,  103,  104. 
Liability  of  registrar   of   deeds  for   failure 

to  index  mortgage,  see  Officers,  103, 

104. 


INDIAN    LANDS. 

See  Indians,  II. 


INDIANS. 


I.  In  general,   1—5. 
II.  Lands  of,   6,   7. 

Assault  on  Indian  by  policeman  on  Indian 
reservation,  see  Assault  and  Battery, 
18. 

Recognition  by  state  courts  of  Indian  di- 
vorce, see  Conflict  of  Laws,  79. 

Sufficiency  of  statement  by,  as  to  expec- 
tation of  death,  to  render  statement 
admissible  as  dying  declaration,  see 
Evidence,  1505. 

Sale  of  intoxicating  liquors  to,  see  Trial, 
257. 

Variance  in  prosecution  for  selling  liquor 
to,  see  Evidence,  2508. 

Liability  of  Indian  soliciting  sale  of  liquor 
to  himself,  see  Intoxicating  Liquors, 
114. 

Marriage  according  to  Indian  custom,  see 
Marriage,  7. 


INDIANS,    I.— INDICTMENT,    INFORMATION,    AND    COMPLAINT.      1467 


Eight  to  attend  public  school,  see  Schools, 

9,  10. 
Competencj'    of,    to    testify    as    to    parents' 

nationality,  see  Witnesses,  5. 

/.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  State  laws  for  the  peace  and  good 
order  of  the  people  within  its  borders  ex- 
tend over  Indian  reservations,  and  apply  to 
the  infraction  of  such  laws  by  persons  of 
Indian  blood.  Deragon  v.  Sero,  20:  842,  118 
N.  W.  839,  137  Wis.  276. 

2.  An  Indian  agent  cannot  authorize 
policemen  on  a  reservation  to  require  per- 
sons of  Indian  blood,  going  to  meet  relatives 
on  an  incoming  train,  to  keep  away  from 
the  entrances  to  the  cars.  Deragon  v.  Sero, 
20:  842,  118  N.  W.  839,  137  Wis.  276. 

3.  A  direction  of  an  Indian  agent  to  po- 
licemen on  the  reservation  to  keep  people 
back  from  car  entrances  when  persons  are 
getting  on  and  off  cars  does  not  apply  to  a 
person  of  Indian  blood  who  goes  in  an 
orderly  manner  to  meet  his  wife  and  chil- 
dren who  are  arriving  on  a  train.  Deragon 
v.  Sero,  20:  842,  118  N.  W.  839,  137  Wis.  276. 

4.  A  teacher  on  an  Indian  reservation 
is  a  person  employed  in  Indian  affairs,  who 
is  forbidden  by  U.  S.  Rev.  Stat.  §  2078,  from 
having  an  interest  in  trade  with  the  In- 
dians, and  is  therefore  forbidden  to  pur- 
chase from  them  cattle  issued  to  them  by 
the  government,  although  he  has  Indian 
blood  and  is  a  member  of  the  tribe,  and  the 
Indian  appropriation  act  of  1884  provides 
that  where  Indians  are  in  possession  of 
cattle  which  have  been  purchased  from  the 
government,  such  cattle  shall  not  be  sold  to 
any  person  not  a  member  of  the  tribe  to 
which  the  owners  of  the  cattle  belong,  with- 
out the  consent  of  the  Indian  agent.  United 
States  V.  Douglas,  36:  1075,  190  Fed.  482,  111 
C.  C.  A.  314. 

5.  A  teacher  at  an  Indian  agency  who 
purchases  from  the  Indians  cattle  issued  to 
them  by  the  United  States  government  has 
an  "interest  or  concern"  in  trade  with 
them,  within  the  meaning  of  the  statute 
imposing  a  penalty  upon  persons  coming 
within  its  operation,  even  though  he  has 
Indian  blood  and  is  a  member  of  a  tribe. 
United  States  v.  Douglas,  36:  1075,  190 
Fed.  482,  111  C.  C.  A.  314. 

//.  Lands  of. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  to  recover  back  money  paid  for  Indian 
land  under  invalid  contract,  see  Con- 
tracts, 581. 

Appointment  of  receiver  to  take  charge  of 
land  during  pendency  of  contest  before 
Department  of  Interior,  see  Receivers, 
3. 

Digest  1-52  I..R.A.(N.S.) 


6.  Under  the  act  of  Congress,  approved 
March  2,  1889  (act  March  2,  1889,  chap. 
422,  25  Stat,  at  L.  1013),  the  laws  of  the 
state  of  Kansas  relative  to  descent  and 
distribution  of  real  property  were  made 
applicable  to,  and  governed,  the  devolution 
of  the  estates  of  members  of  the  Peoria 
Tribe  of  Indians  in  the  Indian  territory. 
Buck  V.  Branson,  50:  876,  127  Pac.  436,  34 
Okla.   807. 

Lease  of. 

7.  The  approval  of  the  Secretary  of  the 
Interior  is  not  essential  to  the  validity  of 
the  oil  and  gas  lease  of  an  allottee  of  In- 
dian lands,  whose  restrictions  against  alien- 
ation thereof  have  been  removed.  Kolachny 
V.  Galbreath,  38:  451,  110  Pac.  902,  26  Okla. 
772. 


INDICTMENT,  INFORMATION,  AND 
COMPLAINT. 

I.  Form;   requisites,    1—10. 
II.  Sufficiency  of  allegations,  11—131. 
a.  In  general,    11—28. 
h.  Intent;  Tcnowledge,  29— 31a. 

c.  Negation    of    defenses    or    ex- 

ceptions,  32—36. 

d.  Duplicity;     repugnancy,     37— 

44. 

e.  Description     of     offense,     4:5— 

107. 

1.  In     general;     particulars, 

45. 

2.  Statutory      offenses      and 

language,    4  6—52 . 

3.  Miscellaneous      instances, 

53-107. 

f.  Amendment,    108—112. 

g.  Sufficiency  to   support  convic- 

tion, 113—131. 

III.  Joinder  of  counts  or  persons. 

IV.  Quashing,  132—140. 

Right  of  accused  to  secure  affirmance,  on 
appeal  by  state,  of  ruling  dismissing 
indictment  because  of  insufficiency,  see 
Appeal  and  Error,  419. 

Errors  waived  or  cured  below,  see  Appeal 
AND  Error,  826,  827. 

Reversible  error  in,  see  Appeal  and  Error, 
1048. 

Right  of  accused  to  statutory  time  in  which 
to  plead  after  amendment  of  indict- 
ment, see  Appeal  and  Error,  1478. 

Decision  as  to  sufficiency  of,  as  res  judicata 
upon  second  appeal,  see  Appeal  and 
Error,  1665,  1666. 

Presumption  arising  from  indictment  by 
grand  jury,  see  Bail  and  Recogni- 
zance, 14,  16. 

Finding  of  indictment  pending  certiorari 
proceedings  to  review  action  of  com- 
mitting magistrate,  see  Certiorari,  1. 

Effect  on  pending  informations  of  adoption 
of  constitutional  amendment,  see  Con- 
stitutional Law,  15. 

Statute  depriving  accused  of  right  to  in- 
dictment by  grand  jury,  see  Constitu- 
tional Law,  36. 


1468 


INDICTMENT,  INFORMATION,   AND  COMPLAINT,  I. 


Contract  to  prevent,  see  Contracts,  493- 
495. 

Effect  of  absence  of  valid  indictment  on 
jurisdiction  of  Federal  court,  see 
Courts,  £63. 

As  to  warrant  and  commitment,  see  Crimi- 
nal Law,  II.  c. 

Necessity  of,  see  Criminal  Law,  II.  d. 

Effect  of  failure  to  prove  case  as  charged 
in  the  indictment,  see  Criminal  Law, 
67. 

Consolidation  of,  see  Criminal  Law,  69,  70. 

Review  of  conviction  on  consolidated  indict- 
ment, see  Appeal  and  Error,  1538. 

Second  indictment  for  same  offense,  after 
accused  is  entitled  to  discharge  for 
want  of  prosecution  under  first,  see 
Criminal  Law,  92. 

Loss  of  indictment,  see  Criminal  Law,  144. 

Demurrer  to,  see  Criminal  Law,  147,  154, 
155. 

Mode  of  questioning  sufficiency  of,  see 
Criminal  Law,  154,  155. 

Motion  to  quash  on  ground  that  prosecution 
is  barred;  right  to  examine  prior  pro- 
ceedings, see  Criminal  Law,  157. 

Amendment  to  indictment  after  trial  begim 
as  second  jeopardy,  see  Criminal  Law, 
174. 

Burden  of  proving  absence  of  knowledge  by 
grand  jury  of  facts  omitted  from,  see 
Evidence,  94. 

Sufiiciency  of,  to  admit  evidence,  see  Evi- 
dence, 2447-2451. 

Variance  between  indictment  and  proof,  see 
Evidence,  2502-2512. 

Matters  as  to  grand  jury,  see  Grand  Jury. 

Release  on  habeas  corpus  for  defects  in,  see 
Habeas  Corpus,  37-40. 

Number  of  peremptory  challenges  to  which 
accused  is  entitled  upon  consolidation 
of  two  indictments  against  him,  see 
Jury,  80. 

Mandamus  to  compel  dismissal  of,  see  Man- 
damus, 16. 

Information  for  impeachment  of  oflScer,  see 
Officers,  72-74. 

Prohibition  to  restrain  action  upon  invalid 
information,  see  Prohibition,  8. 

Prohibition  to  prevent  trial  court  from  en- 
tertaining plea  to  indictment,  see  Pro- 
hibition, 15. 

Reference  to,  in  interpreting  verdict  in 
criminal  case,  see  Trial,  1145. 

Indorsing  names  of  witnesses  on,  see  Wit- 
nesses, 20. 

I.  Form;  requisites. 

(See  also  same  heading  in  Digest  L,R.A. 
1-10.) 

First  objecting  to  sufficiency  on  appeal,  see 

Appeal  and  Error,  766-768. 
Power    of    special    counsel    to   governor    to 

sign,  see  Officers,  78. 

1.  A  court  of  record  does  not  acquire 
jurisdiction  of  criminal  proceedings  where 
the  writing  purporting  to  be  an  information 
is  not  presented  by  the  county  attorney  or 
someone  authorized  by  law,  but  by  a  private 
Digest  1-52  I,.R.A.(N.S.) 


person,  as  in  such  case  it  is  invalid  and  in<- 
capable  of  ameiidmeut.  Evans  v.  Willis,  19: 
1050,  97  Pac.  1047,  22  Okla.  310.  (Annotated) 

2.  An  indictment  is  not  bad  because 
found  by  the  grand  jury  without  witnesses 
or  testimony  before  them.  Lee  v.  State, 
40:  1 132,  148  S.  VV.  567,  —  Tex.  Crira.  Rep. 

3.  An  affidavit,  to  support  a  prosecution 
for  practising  medicine  without  a  license,  is 
sufficient  if  in  the  form  prescribed  by  stat- 
ute. Witty  v.  State,  25:  1297,  90  N.  E.  627, 
173  Ind.  404. 

Verification. 

Verification    of    information    in    contempt 

proceedings,  see  Contempt,  75. 
Habeas  corpus  to  release  person  convicted 

on     an     unverified     information,     see 

Habeas  Corpus,  38,  39. 
See  also  infra.  111. 

4.  An  information  by  a  prosecuting  at- 
torney under  a  statute  providing  that  one 
who  has  been  convicted  and  sentenced  to 
serve  a  term  in  the  penitentiary  who  has 
previously  been  sentenced  to  a  like  punish- 
ment shall  be  informed  against,  and  an  ad- 
ditional sentence  imposed,  need  not  be  veri- 
fied. State  V.  Graham,  40:  924,  69  S.  E. 
1010,  68  W.  Va.  248. 

5.  The  verification  of  an  information  is 
not  invalidated  by  the  omission  of  the  seal 
of  the  court  to  the  jurat.  State  v.  Forsha, 
4:  576,  8:  S.  W.  746,  190  Mo.  296. 

6.  An  information  of  the  commission  of 
crime  for  the  investigation  of  a  magistrate 
cannot  be  made  on  information  and  belief, 
unless  the  facts  are  stated  showing  the 
source  of  the  information  and  the  grounds 
of  belief.  People  ex  rel.  Livingston  v. 
Wyatt,  10:  159,  79  N.  E.  330,  186  N.  Y. 
383.  (Annotated) 

7.  A  statute  providing  that  in  misde- 
meanor cases  a  warrant  may  issue  upon  an 
information  verified  by  the  county  attorney 
upon  information  and  belief,  is  void  because 
repugnant  to  a  constitutional  provision  that 
no  warrant  shall  issue  but  upon  probable 
cause  supported  by  oath  or  affirmation,  de- 
scribing as  particularly  as  may  be  the  per- 
son to  be  seized.  Salter  v.  State,  25:  60, 
102  Pac.  719,  2  Okla.  Crim.  Rep.  464. 

8.  A  verification  by  a  county  attorney 
to  an  information  charging  a  misdemeanor, 
that  affiant  declares  the  statements  set  forth 
in  the  information  are  true,  as  he  is  in- 
formed and  verily  believes,  being  but  an  ex- 
pression of  opinion,  is  not  sufficient  to  jus- 
tify the  issuance  of  a  warrant  of  arrest, 
since  such  an  information,  before  a  warrant 
may  issue,  must  be  verified  by  oath  of  the 
prosecuting  attorney,  or  by  the  oath  or  af- 
firmation of  some  person  competent  to  tes- 
tify, presenting  the  facts  to  the  magistrate. 
Salter  v.  State,  25:  60,  102  Pac.  719,  2  Okla. 
Crim.  Rep.  464.  (Annotated) 

9.  An  accused  does  not  waive  his  right 
thereafter  to  complain  of  an  information 
which  is  defective  in  that  it  is  not  properly 
and  sufficiently  verified,  by  failing  to  demur 
thereto  at  the  proper  time,  as  such  defect  is 
fundamental.  Salter  v.  State,  25:  60,  102 
Pac.  719,  2  Okla.  Crim.  Rep.  464. 


INDICTMENT,  INFORMATION,  AND  COMPLAINT,  II.  a. 


1469 


10.  The  requirement  that  an  informa- 
tion for  a  misdemeanor  be  verified  being  in- 
tended for  the  personal  benefit  of  the  de- 
fendant, he  may  waive  the  same;  and  he 
does  so  by  pleading  to  the  information 
without  moving  to  quash  or  set  it  aside. 
Ex  parte  Talley,  31:805,  112  Pac.  36,  4 
Okla.   Grim.   Rep.   398.  (Annotated) 

II.  Sufficiency  of  allegations. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

First  objecting  to  sufficiency  of,  on  appeal, 
see  Appeal  and  Error,  766-768. 

Demurrer  to,  see  Criminal  Law,  147,  154, 
155. 

Necessity  that  prior  conviction  be  set  forth 
in  indictment  to  authorize  imposition 
of  increased  punishment,  see  Cbiminai, 
Law,  266. 

11.  Under  a  constitutional  provision  that 
"all  prosecutions  shall  be  carried  on  in  the 
name  and  by  the  authority  of  the  state,"  it 
is  not  necessary  specifically  to  aver  in  an 
information  that  the  prosecution  is  so  car- 
ried on,  it  being  sufficient  if  that  fact  ap- 
pear on  the  record.  Caples  v.  State,  26: 
1033,   104  Pac.  493,  3  Okla.   Crim.  Rep.  72. 

(Annotated) 

12.  It  is  not  necessary  under  a  consti- 
tutional provision  that  "no  person  shall  be 
prosecuted  for  a  felony  by  information 
without  having  had  a  preliminary  examina- 
tion before  an  examining  magistrate  or  hav- 
ing waived  such  preliminary  examination," 
in  order  to  give  a  court  jurisdiction  of  an 
information  charging  a  felony,  to  allege 
that  the  defendant  has  had  such  an  exam- 
ination and  has  been  bound  over  to  await 
final  trial  thereon,  or  has  waived  such  ex- 
amination, since  if  such  things  have  not  been 
done  the  motion  can  be  presented  by  plea 
in  abatement.  Caples  v.  State,  26:  1033, 
104  Pac.  493.  3  Okla.  Crim.  Rep.  72. 

13.  An  allegation  in  an  information  for 
perjury  that  the  clerk  of  the  court  before 
whom  the  false  oath  was  alleged  to  have 
been  taken  had  authority  to  administer  it 
is  a  sufficient  averment  that  the  court 
had  jurisdiction  of  the  cause  in  which  the 
perjury  was  charged  to  have  been  com- 
mitted, where  the  statute  merely  requires 
that  the  indictment  shall  set  forth  the 
court  or  person  before  whom  the  oath  was 
taken,  and  that  the  court  or  person  had 
authority  to  administer  it.  Gray  v.  State, 
32:  142,  111  Pac.  825,  4  Okla.  Crim.  Rep. 
292.  (Annotated) 

14.  Failure  to  allege  that  the  order  de- 
claring the  result  of  a  local  option  elec- 
tion was  in  writing  is  not  fatal  to  an  in- 
dictment for  illegally  selling  liquor,  where 
the  statute  declared  that  if  the  majority 
of  the  votes  is  for  prohibition,  the  courts 
shall  immediately  make  an  order  declar- 
ing the  result  of  the  vote.  State  v„  Billups, 
48:  308,  127  Pac.  686,  63  Or.  277. 
Digest  1-52  L.R.A.(N.S.) 


15.  An  indictment  for  compounding  a 
felony  by  agreeing  not  to  prosecute  persons 
arrested  for  larceny  is  insufficient,  which 
does  not  charge  that  a  larceny  had  been 
committed.  State  v.  Hodge,  7:  709,  65  S.  E. 
626,  142  N.  C.  665.  '(Annotated) 
Surplusage. 

16.  Unnecessary  allegations  will  not  vi- 
tiate an  indictment  which  contains  sufficient 
matter  to  charge  a  crime.  Adams  Exp.  Co. 
v.  Com.  5:  630,  92  S.  W.  932,  124  Ky.  160. 

17.  Although  as  a  general  rule  an  in- 
dictment for  a  statutory  offense  is  good  if 
the  offense  is  charged  in  the  language  of 
the  statute,  yet  where  in  a  prosecution 
under  a  statute  relating  to  the  obstruction 
of  a  public  road,  in  which  the  language  of 
the  statute  is  that  "any  person  who  shall 
.  .  .  obstruct  or  injure  any  road,"  the 
word  "public"  being  omitted,  the  indict- 
ment after  charging  the  obstrtiction  of  a 
"road"  contains  further  allegation  showing 
the  road  to  be  a  private  one,  thereby  ef- 
fectively negativing  the  offense  meant  to 
be  covered  by  the  statute,  the  descriptive 
language  cannot,  upon  demurrer,  be  rejected 
as  surplusage  so  as  to  hold  the  indictment 
good.  State  v.  Massie,  47:  679,  78  S.  E.  382, 
72  W.  Va.  444.  (Annotated) 

18.  Where  an  indictment  charges  the 
accused  with  having  assaulted  and  killed 
one  "P.  S.,  alias  F.  M.,"  the  "P.  S.,"  can- 
not be  rejected  as  surplusage  so  as  to  sus- 
tain a  conviction  upon  evidence  tending 
to  show  that  the  defendant  killed  a  person 
commonly  known  as  F.  M.,  since,  under 
the  indictment,  the  name  of  the  person  as- 
saulted was  essential  matter  of  description, 
which  cannot  be  stricken  as  surplusage. 
Goodlove  v.  State,  30:  134,  92  N.  E.  491,  82 
Ohio  St.  365.  (Annotated) 

19.  Where  the  statute  against  burglary 
does  not  require  the  offense  to  be  committed 
in  the  night  season,  an  allegation  in  an  in- 
formation charging  that  it  was  committed 
at  that  time  is  surplusage,  and  need  not 
be  proved.  Schultz  v.  State,  34:  243,  130 
N.  W.  105,  88  Neb.  613, 

Time. 

Variance  between  allegation  and  proof,  see 
Evidence,  2507. 

20.  An  indictment  charging  the  commis- 
sion of  a  crime  on  a  certain  day  in  the  year 
18903  is  fatally  defective,  notwithstanding  a 
statutory  provision  that  no  indictment  shall 
be  deemed  invalid  for  stating  the  time  when 
the  offense  was  committed  imperfectly. 
Terrell  v.  State,  2:  251,  75  N.  E.  884,  165 
Ind.  443.  (Annotated) 

21.  A  complaint  and  warrant  for  a  felo- 
ny which  state  the  date  of  the  offense  as 
"the  blank  day,"  or  "the  —  day,"  of  a 
month  and  year  named,  are  sufficient  to 
authorize  the  detention  of  the  party 
charged  until  a  preliminary  examination 
can  be  held ;  and  this  is  true  although  the 
prosecution  apparently  is  barred  by  the 
statute  of  limitations.  State  v.  White, 
14:  556,  92  Pac.  829,  76  Kan.  654. 

22.  An  information  charging  an  offense, 
which  states  that,  on  a  certain  date,  accused, 
then  and  there  being  proprietor  of  a  saloon. 


1470 


INDICTMENT,  INFORMATION,    AND  COMPLAINT,  II.  b,  c. 


did  the  act  complained  of,  is  not  insuffi- 
cient in  its  averment  as  to  when  the  of- 
fense was  committed,  in  failing  to  repeat 
the  words  "then  and  there"  after  the  word 
"did."  State  v.  Johnson,  22:  1007,  121  N. 
W,  785,  22  S.  D.  293. 

23.  Stating  in  an  indictment  for  illegal 
sale  of  liquor  that  tiie  prohibition  law  had 
been  in  force  from  the  time  the  result  of 
the  election  was  declared,  instead  of  from 
the  time  that  the  statute  declared  it  to  be 
in  force,  is  immaterial  if  the  sale  took  place 
after  the  law  took  effect  under  the  statute. 
State  V.  Billups,  48:  308,  127  Pac.  686,  63 
Or.  277. 

24.  An  indictment  for  murder  is  not 
bad  for  failure  to  allege  the  time  and  place 
of  the  commission  of  the  crime,  where  the 
caption  gives  the  name  of  the  county  and 
court,  and  the  time  of  the  finding  of  the  in- 
dictment, and  the  statute  provides  that  such 
statements  shall  be  considered  as  allega- 
tions that  the  crime  was  committed  within 
the  jurisdiction  of  the  court  and  before  the 
finding  of  the  indictment,  after  the  act  be- 
came a  crime,  and  also  that  the  time  and 
place  need  not  be  alleged.  Com.  v.  Snell, 
3:  1019,  75  N.  E.  75,  189  Mass.  12. 

(Annotated) 

25.  An  information  for  homicide,  which 
charges  the  commission  of  the  offense  on  a 
date  subsequent  to  that  upon  which  the 
information  is  filed,  is  defective.  McKay 
v.  State,  39:  714,  132  N.  W.  741,  90  Neb.  63. 
Place. 

See  also  supra,  24. 

26.  An  indictment  alleging  that  the  de- 
fendant, of  a  certain  place  in  the  state,  "did 
then  and  there  keep,  with  intent  to  sell," 
certain  unwholesome  meats,  sufficiently 
lays  the  place  of  intended  sale  within  the 
state,  the  ofi"ense  charged  being  a  misde- 
meanor; since  the  time  and  place,  added 
to  the  first  act  alleged,  are  deemed  to  be 
connected  with  all  the  facts  subsequently 
alleged.  State  v.  Peet,  14:  677,  68  Atl. 
661,  80  Vt.  449. 

Caption  and  conclnsion. 

27.  The  omission  of  the  word  "the"  be- 
fore the  words  "state  of  Oklahoma"  in  the 
caption  of  an  information  is  not  fatal  un- 
der a  constitutional  provision  that  "the 
style  of  all  writs  and  processes  shall  be  'The 
state  of  Oklahoma,' "  as  an  information  is 
not  a  writ  or  process  and  as  the  caption 
forms  no  part  of  the  information  itself, 
and  even  if  it  werg  a  part  thereof  the  omis- 
sion would  not  prove  fatal  as  the  Constitu- 
tion will  not  be  given  a  technical  construc- 
tion. Caples  V.  State,  26:  1033,  104  Pac. 
493,   3   Okla.   Crim.   Rep.   72. 

"Waiver  of  defects. 

28.  One  arrested  for  felony  who  consents 
to  a  continuance,  and,  without  objection  to 
the  complaint  or  warrant,  gives  bond  to  ap- 
pear at  a  later  date  and  answer,  thereby 
waives  the  defects  in  the  complaint  and  war- 
rant, and  thereafter  cannot  be  heard  to  say 
they  were  insufficient  to  begin  a  criminal 
action  against  him  and  arrest  the  running 
of  the  statute  of  lim'tations.  State  v. 
White,  14:  556,  92  Pac.  829,  76  Kan.  654. 
Digest  1-52   L.R.A.(N.S.) 


b.  Intent;    Icnoivlcdoe. 

(See  also    same   heading   iii    Digest   L.R.A. 

1-70. J 

See  also  infra,  64. 

29.  Tlie  averment  that  an  instrument 
was  used  with  the  intent  to  procure  an  abor- 
tion or  miscarriage  renders  it  unnecessary 
to  allege  that  it  was  without  a  design  to 
effect  death;  the  presumption  in  favor  of 
the  defendant  being  sufficient  to  negative 
an  intent  more  malevolent  and  criminal 
than  the  one  expressly  charged.  State  v. 
Harris,  49:  580,  136  Pac.  264,  90  Kan.  807. 

30.  An  information  for  attempted  rob- 
bery is  not  insufficient  for  failure  to  allege 
an  intent  to  deprive  the  owner  of  his  prop- 
erty "without  his  consent,"  if  it  charges 
violence  in  attempted  perpetration  of  a  rob- 
bery against  the  will  of  the  person  upon 
whom  the  attempt  was  made.  State  v.  Car- 
roll, 21:  311,  113  S.  W.  1051,  214  Mo.  392. 

31.  An  indictment  for  knowingly  depos- 
iting nonmailable  matter  in  the  mails  is  not 
defective  for  failure  to  charge  that  accused 
knew  the  character  of  the  matter  so  de- 
posited, since  the  charge  of  knowingly  de- 
positing notifies  accused  that  the  govern- 
ment undertakes  to  prove  that  he  knew  the 
character  of  the  matter  when  he  mailed  it. 
Konda  v.  United  States,  22:  304,  166  Fed. 
91,  92  C.  C.  A.  75. 

31a.  The  scienter  is  sufficiently  charged 
in  an  indictment  for  subornation  of  per- 
jury, by  charging  that  accused  wilfully, 
feloniously,  maliciously,  and  corruptly  did 
incite  the  corrupt  perjury,  without  express- 
ly charging  that  accused  knew  that  the  wit- 
ness would  testify  falsely.  State  v.  Rich- 
ardson, 44:  307,  154  S.  W.  735,  248  Mo.  663. 

c.  Negation   of  defenses  or  exceptions. 

(See  also   same   heading   in  Digest  L.R.A. 
1-10.) 

Exceptions. 

32.  An  information  need  not  negative 
exceptions  in  a  statute  creating  an  offense, 
if  it  is  not  descriptive  of  the  offense.  Smith 
V.  People,  36:  158,  117  Pac.  612,  51  Colo.  270. 

33.  An  indictment  against  an  incorpo- 
rated carrier  for  bringing  intoxicating  li- 
quor into  local-option  territory  need  not 
negative  the  provision  of  the  statute  that 
individuals  may  bring  into  such  district  upon 
their  person,  or  as  their  personal  baggage, 
and  for  their  private  use,  such  liquors  in 
quantities  not  to  exceed  1  gallon.  Adams 
Exp.  Co.  V.  Com.  18:  1 182,  112  S.  W.  577, 
129  Ky.  420. 

34.  An  affidavit,  to  support  a  prosecu- 
tion for  practising  medicine  without  a  li- 
cense, need  not  allege  that  accused  was  not 
practising  optometry,  nursing,  or  selling 
proprietary  medicines,  within  an  exception 
in  the  statute  defining  the  offense,  where 
such  exception  is  not  part  of  the  definition 
of  the  crime,  but  is  in  a  proviso.  Witty  v. 
State,  25:  1297,  90  N.  E.  627,  173  Ind.  404. 


INDICTMENT,  INFORMATION,  AND  COMPLAINT,  II.  d- 


1471 


35.  An  indictment  which  charges  the  de- 
fendant with  having  in  his  possession  co- 
caine and  mixtures  containing  cocaine  with 
intent  to  sell  and  dispense  the  same,  tlie 
said  defendant  "not  being  then  and  there  a 
licensed  manufacturing  pharmacist  or  chem- 
ist, or  wholesale  or  retail  druggist,  or  a 
licensed  physician,  dentist,  or  veterinary 
surgeon,"  having  negatived  the  exceptions 
contained  in  the  enacting  clause  of  the  stat- 
ute, is  not  insufficient  in  that  it  fails  to 
negative  various  methods  under  the  statute 
under  which  the  defendant  might  have 
cocaine  in  his  possession  legally.  State  v. 
Sutter,  43:  399,  76  S.  E.  811,  71  W.  Va.  371. 

36.  An  information  charging  a  sale  of 
intoxicating  liquors,  in  violation  of  the  Kan- 
sas statute,  without  first  obtaining  from 
the  probate  judge  of  the  proper  county  a 
permit  for  that  purpose,  need  not  allege,  in 
order  to  state  a  public  offense,  that  the  ac- 
cused was  not  a  registered  pharmacist  or 
assistant  pharmacist  in  the  employ  of  a 
druggist.  State  v.  Durein,  15:  908,  78  Pac. 
152,  70  Kan.  1. 

d.  Duplicity;   repugnancy. 

Review  of  discretion  as  to  permitting  with- 
drawal of  plea  of  not  guilty  and  attack 
indictment  for  duplicity,  see  Appeal 
AND  Eebob,  584. 

Errors  waived  or  cured  below,  see  Appeal 
AND  Error,  826,  827. 

How  question  of  duplicity  may  be  raised, 
see  Criminal  Law,  154. 

Election  between  counts  of,  see  Trial,  I.  b. 

37.  An  indictment  which  follows  the 
words  of  a  statute,  and  charges  one  with 
illegally  selling  "spirituous  or  intoxicating" 
liquors,  is  not  bad  for  duplicity  on  account 
of  the  use  of  the  disjunctive,  as  the  law- 
making power  has  the  right  to  make  the 
sale  of  spirituous  and  intoxicating  drinks 
one  crime  chargeable  in  one  indictment. 
State  V.  George,  51:  133,  63  So.  866,  134  La. 
177.  (Annotated) 

38.  An  information  which  charges  a  de- 
fendant with  having  in  possession  intoxi- 
cating liquor  with  the  intent  to  sell  same, 
and  with  the  intent  to  convey  same  from 
one  place  within  the  state  to  another  place 
therein,  does  not  charge  two  offenses. 
Childs  V.  State,  33:  563,  113  Pac.  545,  4 
Okla.  Crim.  Rep.  474. 

39.  More  than  one  crime  is  not  charged 
by  an  indictment  for  getting  one  into  an  in- 
decent and  compromising  position  and  call- 
ing public  attention  to  it,  which  states  that, 
to  accomplish  the  purpose,  defendant  broke 
and  shattered  a  door  of  the  office  of  the 
prosecuting  witness.  State  v.  Wayraire,  21: 
56,  97  Pac.  46,  52  Or.  281. 

40.  The  state  need  not  be  required  to 
elect  on  which  charge  it  will  rely  under  an 
indictment  for  perjury  charging  false  testi- 
mony that  accused  did  not  know  of  the  exe- 
cution of  a  contract,  and  that  a  named 
person  claimed  to  be  the  owner  of  a  specified 
piece  of  machinery.  State  v.  Eaid,  33:  946, 
104  Pac.  275,  55  Wash.  302. 

Digest  1-52  L.B.A.(N.S.) 


41.  An  information  charging  that  de- 
fendant obtained  a  draft  by  false  pre- 
tenseSj  on  which  he  collected  the  money,  is 
not  bad  for  duplicity  as  charging  that  the 
pretenses  were  made  for  the  purpose  of  ob- 
taining both  draft  and  money.  State  v. 
Briggs,  7:  278,  86  Pac.  447,  74  Kan.  377. 

42.  Charging  a  contract  as  an  overt  act 
in  furtherance  of  a  combination  or  con- 
spiracy in  violation  of  the  Sherman  anti- 
trust act  does  not  charge  a  separate  offense 
so  as  to  invalidate  an  indictment  for  the 
combination  or  conspiracy  for  duplicity. 
Tribolet  v.  United  States,  16:  223,  95  Pac. 
85,  11  Ariz.  436. 

43.  A  count  of  an  indictment  under  the 
Sherman  anti-trust  act  is  not  void  for  du- 
plicity in  charging  a  combination  in  form 
of  a  trust  in  restraint  of  trade  and  a  con- 
spiracy in  restraint  of  trade.  Tribolet  v. 
United  States,  16:  223,  95  Pac.  80,  11  Ariz. 
436. 

44.  An  indictment  for  conspiracy  to  in- 
duce a  shipper  to  violate  the  "Elkins  law" 
by  receiving  rebates  is  not  bad  for  duplicity 
in  charging  that  the  conspiracy  was  to  in- 
duce him  to  "accept  and  receive"  rebates. 
Thomas  v.  United  States,  17:  720,  156  Fed. 
897,  84  C.  C.  A.  477. 

e.  Description  of  offense. 

1.  In  general;  particulars. 

(See  also   same  heading  in  Digest  L.R.A. 
1-10.) 

45.  An  indictment  must  set  forth  the 
facts  constituting  the  alleged  offense,  and 
every  essential  element  of  it,  with  sucli 
clearness  and  certainty  as  to  advise  the 
accused  of  the  charge  he  has  to  meet,  and 
to  give  him  a  fair  opportunity  to  prepare 
his  defense,  to  enable  him  to  avail  himself 
of  the  judgment  thereon  in  defense  of  an- 
other prosecution  for  the  same  offense,  and 
to  qualify  the  court  to  determine  whether 
or  not  the  facts  there  stated  are  sufficient 
to  support  a  conviction.  Armour  Packing 
Co.  v.  United  States,  14:  400,  153  Fed.  1,  82 
C.  C.  A.  135. 

2.  Statutory  offenses  and  language. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

46.  An  indictment  in  the  language  of 
the  statute,  which  so  individuates  the  of- 
fense that  the  accused  has  proper  notice  of 
the  crime  charged,  is  good.  State  v.  Kor- 
man,  40:  239,  135  N.  W.  362,  154  Iowa,  672. 

47.  An  indictment  or  information  for 
committing  a  statutory  offense  may  de- 
scribe the  offense  in  the  general  language  of 
the  statute,  but  the  description  must  be 
accompanied  by  a  statement  of  the  par- 
ticulars essential  to  constitute  the  crime  or 
offense  charged,  and  must  acquaint  the  ac- 
cused with  what  he  must  meet  upon  the  tri- 
al. Fletcher  v.  State,  23:  581,  101  Pac.  599, 
2  Okla.  Crim.  Rep.  300. 


1472 


INDICTMENT,  INFORMATION,   AND  COMPLAINT,  II.  e,  3. 


48.  A  count  in  an  indictment  may  be  a 
good  statutory  count,  alLliough  it  does  not 
follow  the  prescribed  statutory  form.  Com. 
V.  Snell,  3:  1019,  75  N.  E.  75,  189  IMass.  12. 

49.  Referring  in  the  indictment  to  for- 
mer convictions  of  one  accused  of  crime  as 
former  judgments  will  not  exclude  evidence 
thereof,  although  the  statute  provides  for 
the  pleading  and  proof  of  former  convictions 
to  enhance  punishment.  State  v.  Smith, 
4:  539,  106  N.  W.  187,  129  Iowa,  709. 

50.  An  indictment  under  the  Sherman 
anti-trust  act,  which  charges  the  offense  in 
the  language  of  the  statute  and  does  not 
fully  state  its  purposes  and  objects  until 
after  the  overt  acts  are  described,  although 
not  direct  and  certain  in  some  of  its  allega- 
tions, is  not  invalid.  Tribolet  v.  United 
States,  16:  223,  95  Pac.  85,  11  Ariz.  436. 

51.  An  indictment  for  embezzlement 
charging  in  proper  form  every  essential  ele- 
ment of  that  offense  as  defined  by  statute 
cannot  be  held  bad  for  vagueness,  indefinite- 
ness,  or  uncertainty.  State  v.  Blakemore, 
27:  415,  126  S.  W.  429,  226  Mo.  560. 

52.  An  indictment  which  follows  the  lan- 
guage of  the  statute,  against  an  agent  for 
embezzling  money  collected  for  his  principal, 
is  not  insufficient  because  it  does  not  state 
from  whom  the  money  was  collected.  State 
V.  Blakemore,  27:  415,  126  S.  W.  429,  226 
Mo.  560. 

3."  Miscellaneous  instances. 

(See  also   same   heading  in  Digest  L.R.A. 
1-10.) 

53.  An  information  for  failure  to  send 
a  child  to  a  public  or  private  school  as  re- 
quired by  statute  is  not  insufficient  because 
it  uses  the  word  "approved"  before  "pri- 
vate," if  the  statute  makes  the  offense  fail- 
ure to  send  the  child  to  a  public  or  private 
school.  State  v,  Counort,  41:  95,  124  Pac. 
910,  69  Wash.  361. 

54.  Under  a  statute  making  it  a  mis- 
demeanor to  permit  "any  person  under  the 
age  of  twenty-one  years  to  be  or  remain  in 
any  dance  house,  concert  saloon,  place  where 
intoxicating  liquors  are  sold  or  given  away, 
or  in  any  place  injurious  to  the  morals," 
a  complaint  for  permitting  a  person  under 
twenty-one  years  of  age  to  remain  in  a 
"dance  hall"  need  not  describe  the  char- 
acter of  such  hall,  nor  allege  that  it  was  a 
place  injurious  to  the  morals.  State  v. 
Rosenfield,  29:  331,  126  N.  VV.  1068,  111 
Minn.  301. 

Offense   against   postal   la^xrs. 
See  also  supra,  31.  • 

55.  An  averment  in  an  indictment  for 
sending  obscene  matter  through  the  mails, 
that  it  was  obscene,  lewd,  and  lascivious,  is 
not  insufficient,  as  being  a  conclusion  of 
law  rather  than  a  statement  of  fact.  Konda 
V.  United  States,  22:  304,  166  Fed.  91,  92  C. 
C.  A.  75. 

56.  A  pamphlet  too  obscene  to  be  spread 
on  record  is  sufficiently  identified  by  an 
indictment  for  unlawfully  sending  it  through 
Digest  1-52  I<.R.A.(N.S.) 


the    mails    by    describing    its    size    and    ap- 
pearance,  and   setting  forth   its   title   page. 
Konda   v.   United   States,   22:  304,   100   Fed. 
91,  92  C.  C.  A.  75. 
Violation  of  Elkin's  act. 
See  also  supra,  44. 

57.  The  "device"  by  which  a  concession 
or  rebate  from  the  established  rate  for 
transportation  is  brought  about  in  viola- 
tion of  the  Elkins  act  (act  February  19, 
1903,  chap.  708,  32  Stat,  at  L.  847,  U.  S. 
Comp.  Stat.  Supp.  1905,  p.  599)  is  not  an 
essential  element  of  the  crime;  and  it  is 
unnecessary  to  plead  it  in  an  indictment. 
Armour  Packing  Co.  v.  United  States,  14: 
400,  153  Fed.  1,  82  C.  C.  A.  135. 
Practising  medicine  without  license. 
See  also  supra,  34. 

58.  An  indictment  for  practising  medi- 
cine without  a  license  need  not  state  that 
accused  was  not  within  the  classes  not  in- 
cluded in  the  law,  where  these  classes  were 
merely  persons  rendering  gratuitous  serv- 
ices and  surgeons  in  the  service  of  the  Fed- 
eral government,  since  the  exception  is  not 
descriptive  of  the  offense.  State  v.  Smith, 
33:  179,  135  S.  W.  465,  233  Mo.  242. 
Injury  to,  or  destruction  of,  property. 

59.  Ownership  is  sufficiently  charged 
within  a  statute  providing  punishment  for 
unlawfully  injuring  property  belonging  to 
another,  to  withstand  a  collateral  attack, 
by  stating  that  it  was  in  lawful  possession 
of  another.  Gordon  v.  District  Ct.  44:  1078, 
131  Pac.  134,  36  Nev.  1. 

60.  An  indictment  charging  one  with 
wilfully  and  maliciously  injuring  another's 
automobile  sufficiently  charges  the  cause 
and  nature  of  the  accusation.  State  v. 
Davis,  34:  295,  70  S.  E.  811,  88  S.  C.  229. 

61.  Where  by  statute  the  destruction  of 
property  under  a  certain  value  is  a  crime, 
while  below  that  value  it  is  merely  a  mis- 
demeanor, an  indictment  or  informattion  for 
violation  of  the  statute  must  allege  the 
value  of  the  property  destroyed.  Nation 
V.  District  of  Columbia,  26:  996,  34  App. 
D.  C.  453. 

Pollution  of  -water. 

62.  Under  a  statute  making  it  unlawful 
to  throw  into,  or  allow  to  enter,  any  stream 
or  water  course  any  matter  deleterious  to 
the  propagation  of  fish,  and  indictment 
which  charges  that  the  defendant  "did  un- 
lawfully throw  in  a  water  course,  known 
as  Stewart's  run,  sulphur  water,  the  said 
sulphur  water  being  deleterious  to  the  prop- 
agation of  fish,"  is  not  defective  in  that  it 
fails  to  allege  that  Stewart's  run  is  such 
a  stream  as  permitted  the  propagation  of 
fish.  State  v.  Southern  Coal  &  Transp.  Co. 
43:  401,  76  S.  E.  970,  71  W.  Va.  470. 
Bringing    stolen    property   into    state. 

63.  The  offense  of  bringing  stolen  prop- 
erty into  the  state  denounced  by  the  Kan- 
sas crimes  act,  §  285  (Gen.  Stat.  1901,  § 
2286),  may  be  charged  in  the  information 
as  simple  larceny.  State  v.  White,  14:  556, 
92  Pac.  829,  76  Kan.  654. 

Receiving  stolen   property. 

64.  Failure  of  an  indictment  for  receiv- 
ing money  stolen  from  the  mails  to  charge 


INDICTMENT,  INFORMATION,  AND  COMPLAINT,  II.  e,  3. 


1473 


the  intent  with  wliich  the  money  was  re- 
ceived, or  from  whom  it  was  concealed,  or 
tlie  name  of  the  owner,  is  not  fatal  under 
a  statute  providing  for  a  punishment  of  any 
person  who  shall  receive  or  conceal  any  bank 
note,  etc.,  knowing  it  to  have  been  stolen 
from  the  mail.  Thompson  v.  United  States, 
47:  206,  202  Fed.  401,  120  C.  C.  A.  575. 
Keening  pool  room. 

65.  An  indictment  for  keeping  a  pool 
room  properly  states  the  particular  acts 
relied  upon  to  support  the  cliarge.  Ehriick 
V.  Com.  10:  995,  102  S.  W.  289,  125  Ky.  742. 
Mnlicious  ivounding. 
Sufficiency  to  support  conviction,  see  infra, 

123. 

66.  An  indictment  for  malicious  cutting 
and  wounding,  with  intent  to  main,  dis- 
figure, and  kill,  need  not  specify  the  instru- 
ment with  which  the  injury  was  inflicted. 
State  V.  Gibson,  28:  965,  68  S.  E.  295,  67 
W.  Va.  548. 
Extortion. 

67.  A  threat  to  do  an  unlawful  injury  to 
property  is  insufficiently  charged  in  an  in- 
dictment for  extortion  by  alleging  that  de- 
fendant threatened  certain  restaurant  keep- 
ers that,  if  money  were  not  paid  to  him,  he 
would  prevent  them  from  obtaining  liquor 
licenses,  and  thereby  injure  their  business, 
but  which  fails  to  state  whether  he  would 
do  so  by  lawful  influence  over  the  commis- 
sioners having  lawful  power  to  refuse  such 
licenses,  or  by  duress,  menace,  fraud,  or  un- 
due influence,  or  which  fails  to  state  that 
the  defendant  was  in  a  position  to  exercise 
power  or  undue  influence  over  them,  malice 
alone  not  being  enough  to  make  the  injury 
unlawful.  People  v.  Pchmitz,  15:  717,  94 
Pac.  419,  7  Cal.  App.  369. 
Bi.iraniy. 

68.  In  a  prosecution  for  bigamy,  it  is  not 
necessary  to  allege  specifically  that  the  fii'st 
marriage  was  a  "legal"  one.    Baker  v.  State, 
27:  1057,  126  N.  W.  300,  86  Neb.  775. 
Perjury. 

Charging  knowledge,  see  supra,  31a. 
Duplicity,  see  supra,  40. 
Sufficiency  to  support  conviction,  see  infra, 

124. 

Assailing  for  first  time  on  appeal,  see  Ap- 
peal AND  Erkob,  767. 

See  also  supra,  13. 

69.  An  information  for  perjury  which 
alleges  that  the  defendant  wilfully,  cor- 
ruptly, and  falsely  testified  to  a  certain 
stated  fact;  that  said  statement  was  not 
then  and  there  true,  but  false;  and  was 
not  then  and  there  believed  by  the  defend- 
ant to  be  true,  but  was  by  the  defendant 
believed  to  be  false, — sufficiently  negatives 
the  truth  of  the  alleged  false  testimony, 
without  setting  out  the  true  facts  by  way 
of  antithesis.  Gray  v.  State,  32:  142,  111 
Pac.  825,  4  Okla.  Crim.  Rep.  292. 

70.  An  indictment  for  perjury  is  suf- 
ficient which  sets  forth  the  substance  of 
the  controversy  in  which  the  crime  was 
committed,  in  what  court  the  oath  alleged 
to  be  false  was  taken,  and  that  such  court 
had  authority  to  administer  the  oath,  with 
Digest  1-52  L.R.A.(N.S.) 


proper  allegations  of  the  falsity  of  the 
matter  on  which  the  perjury  is  assigned. 
State  V.  Eaid,  33:  946,  104  Pac.  275,  55 
Wash.  302. 

71,  72.  An  indictment  for  perjury  in 
falsely  swearing  that  accused  did  not  believe 
or  recall  that  he  did  certain  things  does  not 
sufficiently  falsify  the  oath  by  averring  that 
he  did  such  things,  as  he  then  and  there 
well  knew.  State  v.  Coyne,  21:  993,  114  S. 
W.  8,  214  Mo.  344. 
Homicide. 

Surplusage  in,  see  supra,  18. 
Allegations  as  to  time  and  place,  see  supra, 

24,  25. 
Amendment,  see  infra,  110,  111. 
Sufficiency  to  support  conviction,  see  infra, 

117-122. 
Variance  between  indictment  and  proof,  see 

Evidence,  2504,  2504a. 

73.  An  indictment  for  murder  is  not 
bad  for  failure  fully,  plainly,  substantially, 
and  formally  to  describe  to  defendant  the 
crime  charged  against  him,  as  required  by 
the  Constitution,  where  the  statute  pro- 
vides for  a  bill  of  particulars  imder  which 
such  information  may  be  obtained.  Com.  v. 
Snell,  3:  1019,  75  N.  E.  75,  189  Mass.  12. 

74.  An  information  under  a  Code  re- 
quiring a  statement  of  the  acts  constitut- 
ing the  offense  in  such  a  manner  as  to  en- 
able a  person  of  common  understanding  to 
know  what  is  intended,  which  charges  a 
physician  with  manslaughter  by  causing 
the  death  of  a  sick  child  by  starvation  by 
advising  its  mother  to  withhold  from  it  all 
food  or  nourishment  save  water  and  the 
juices  of  fruit  and.  such  other  nourishment 
as  he  might  direct;  and  which  alleges  that 
the  mother  followed  his  directions,  and 
that  the  food  given  was  not  enough  to  sus- 
tain life, — is  insufficient,  where  there  is 
no  allegation  as  to  what  other  nourish- 
ment he  directed  to  be  given;  since  the 
starvation  must  be  shown  to  be  a  necessary 
and  certain  result  of  the  directions.  State 
V.  McFadden,  14:  1140,  93  Pac.  414,  48 
Wash.  259. 

75.  Murder  in  the  first  degree  is  charged 
by  an  indictment  alleging  that  accused  did, 
with  intent  to  kill  and  murder,  wrongfully, 
deliberately,  and  premeditatedly,  and  witli 
malice  aforethought,  shoot  a  bullet  from  a 
revolver  into  the  body  of  accused,  and  that 
death  resulted  therefrom.  State  v.  Dyer, 
29:  459,  124  N.  W.  629,  147  Iowa,  217. 

76.  An  allegation  in  an  information  for 
murder  by  poisoning  is  sufficiently  certain 
which  charges  that  the  defendant  adminis- 
tered to  a  person  named  "certain  deadly 
drugs  and  poisons,  to  wit,  cyanide  of  potas- 
sium and  hydrocyanic  acid,  and  also  other 
drugs  and  poisonous  substances  to  this 
county  attorney  unknown,"  although  such 
other  drugs  and  poisonous  substances  are 
not  otherwise  designated  or  described.  State 
V.  Buck,  42:  854,  127  Pac.  631,  88  Kan.  114. 
Forgery. 
Variance   between   pleading   and   proof,   see 

Evidence,  2505. 

77.  An  indictment  for  forgery  must  set 
out    a   literal    copy   of   the    instrument   al- 

93 


1474 


INDICTMENT,  INFORMATION,  AND  COMPLAINT,  II.  e,  3. 


leged  to  having  been  forged  unless  the  in- 
strument is  in  possession  of  accused,  is  lost, 
destroyed,  or  for  some  other  reason  is  not 
available  to  the  grand  jury,  and  therefore 
an  indictment  which  purports  to  give  only 
the  substance  of  the  instrument,  without 
showing  that  the  instrument  is  not  acces- 
sible, is  fatally  defective,  although  the  in- 
strument is  in  fact  set  out  in  hcec  verba. 
People  V.  Tilden,  31:  215,  90  N.  E.  218,  242 
111.  536.  (Annotated) 

78.  An  indictment  for  the  offense  de- 
fined by  statute  as  the  uttering  and  pub- 
lishing as  true  of  an  instrument  the  false 
making  of  which  constitutes  forgery  need 
not  designate  the  person  to  whom  the  in- 
strument was  uttered  and  passed,  or  the 
facts  constituting  the  alleged  uttering, — at 
leasi,  where  by  statute  the  person  intended 
to  be  defrauded  need  not  be  named  in  in- 
dictments for  offenses  to  constitute  which 
an  intent  to  defraud  is  required.  State  v. 
Weaver,  31:  1046,  128  N.  W.  559,  149  Iowa, 
403.  (Annotated) 
Conspiracy;  false  pretenses. 
Duplicity,  see  supra,  41-44. 
Amendment,  see  infra,  109, 

Variance  between  indictment  and  proof,  see 

Evidence,  2512. 
See  also  supra,  50. 

79.  An  indictment  for  conspiracy  to 
break  a  jail  for  the  purpose  of  lynching  a 
prisoner  is  not  defective  for  alleging  con- 
spiracy with  others  without  naming  them,  or 
stating  that  they  are  to  the  jurors  unknown, 
unless  the  statute  requires  such  facts  to  be 
stated.  State  v.  Lewis,  7:  669,  55  S.  E.  600, 
142   N.    C;  626. 

80.  An  indictment  of  a  transportation 
agent  for  conspiring  to  induce  a  shipper  to 
receive  rebates  in  violation  of  the  act  of 
Congress  known  as  the  "Elkins  act"  is  not 
insufficient  because  it  fails  to  set  out  the 
name  of  the  proposed  giver, — at  least  where 
the  givers  are  described  as  the  railroads  and 
their  connecting  lines  engaged  in  carrying 
on  interstate  commerce  between  the  points 
of  shipment  and  destination  of  the  shipper's 
traffic.  Thomas  v.  United  States,  17:  720, 
156  Fed.  897,  84  C.  C.  A.  477. 

81.  A  charge  in  an  indictment  for  con- 
spiracy to  induce  a  shipper  to  violate  the 
"Elkins  law"  by  receiving  rebates,  that  the 
money  was  to  be  received  from  the  railroads 
in  the  way  or  guise  of  pretended  claims, 
commissions,  and  allowances,  and,  when  so 
received,  was  to  be  turned  over  to  the  ship- 
per, is  sufficient  to  show  how  the  rebate 
was  to  be  effected.  Thomas  v.  United  States, 
17:  720,  156  Fed.  897,  84  C.  C.  A.  477. 

82.  An  information  which  charges  that 
the  defendant  obtained  a  draft  for  money  as 
a  commission  for  a  loan  on  a  farm,  on  the 
false  and  fraudulent  pretense  that  he  was 
an  agent  engaged  in  loaning  money  on 
farms,  and  that  he  had  much  property,  and 
was  financially  responsible,  and  had  a  large 
amount  of  money  under  his  control,  is  not 
bad  because  it  fails  to  state  whether  the  ap- 
plication of  the  borrower  for  the  loan  was 
oral  or  written,  since  it  is  wholly  immaterial 
Digest   1-52  I<.R.A.(N.S.) 


whether  it  was  oral  or   written.      State  T. 
Briggs,  7:  278,  86  Pac.  447,  74  Kan.  377. 

83.  An  indictment  for  obtaining  money 
by  false  pretenses  must  describe  with  the 
same  certainty  the  money  alleged  to  have 
been  obtained  as  is  required  in  an  indict- 
ment for  larceny.  Re  Waterman,  ii:  424^ 
89   Pac.   291,   29   Nev.   288. 

84.  An  indictment  which  merely  charges 
one  with  misrepresenting  facts  regarding 
stock  of  a  corporation  to  one  who  bought 
it  in  consequence  thereof,  without  show- 
ing that  accused  obtained  any  money  or 
other  thing  of  value  thereby,  does  not 
charge  an  offense  under  a  statute  providing^ 
for  the  punishment  of  one  who  shall  ob- 
tain from  another  money  or  other  property 
by  means  of  fraudulent  pretenses.  Re  Wa- 
terman, 11:  424,  89  Pac.  291,  29  Nev.  288. 

85.  An  indictment  for  obtaining  money 
by  false  pretenses  in  that  defendant  repre- 
sented that  he  was  selling  counterfeit 
money,  which  contains  no  averment  that 
there  was  any  attempt  on  the  part  of  the- 
defendant  to  induce  the  prosecuting  witness- 
to  purchase  such  money,  or  that  he  did 
purchase  such  money,  nor  any  averment 
that  the  defendant  sold  or  agreed  to  sell 
or  deliver  any  counterfeit  money  or  any 
other  thing  to  the  prosecuting  witness- 
which  induced  him  to  pay  money  to  the- 
defendant,  does  not  aver  a  crime  with  rea- 
sonable certainty  so  as  to  appr'  e  the  de- 
fendant of  what  he  may  expect  to  meet^ 
and  so  that  the  court  and  jury  may  know 
what  they  are  to  try,  and  the  court  may 
determine  without  unreasonable  difficulty 
what  evidence  is  admissible.  Horton  v. 
State,  39:  423,  96  N.  E.  797,  85  Ohio  St.  13. 

86.  An  indictment  for  securing  a  note 
by  false  pretenses  is  fatally  defective  if  it 
merely  sets  out  the  false  pretense  and  the 
giving  of  the  note,  without  showing  the  caus- 
al connection  between  them,  and  it  is  not 
sufficient  merely  to  allege  that  the  represen- 
tations induced  the  making  of  the  note^ 
State  V.  Whedbee,  27:  363,  67  S.  E.  60,  152 
N.  C.  770.  (Annotated) 
Monopoly. 

87.  The  means  by  which  the  combination 
or  conspiracy  was  to  be  accomplished  need 
not  be  charged  in  an  indictment  under  the 
Sherman  anti-trust  act.  Tribolet  v.  Unit- 
ed States,  16:  223,  95  Pac.  85,  11  Ariz.  436. 

88.  An  indictment  under  §  5168,  Minn. 
Rev.  Laws  1905,  charging  that  the  defend- 
ants, several  persons,  and  corporations,  were 
"jointly  and  severally"  engaged  in  a  cer- 
tain occupation,  and,  in  violation  of  the 
statute,  formed  a  combination  for  the  pur- 
pose of  increasing  the  price  of  their  product, 
is  sufficient  to  show  that  the  defendants 
were  to  some  extent  independent  dealers,, 
and  not  jointly  associated  in  business  as- 
one  concern.  State  v.  Minneapolis  Milk  Co. 
51:  244,  144  N.  W.  417,  124  Minn.  34. 
I/arceny. 

Amendment,  see  infra,  112. 
Sufficiency  to  support        iviction,  see  infra,. 
125. 


INDICTMENT,  INFORMATION,  AND  COMPLAINT,  II.  e,  3. 


1475 


How  question  of  sufficiency  may  be  raised, 

see  Criminal  Law,  155. 
What  evidence  admissible  under  allegations, 

see  Evidence,  2447. 

89.  An  indictment  charging  larceny  of 
money  must  describe  the  particular  pieces 
or  denominations  of  money  taken,  and  it 
is  insufficient  to  state  merely  that  a  certain 
sum  of  money  of  a  certain  value  was  stolen, 
where  the  particulars  omitted  were  within 
the  knowledge  of  the  grand  jury,  or  might 
have  been  ascertained  by  the  exercise  of 
ordinary  diligence.  People  v.  Hunt,  36:  933, 
96  N.  E.  220,  251  111.  446.  (Annotated) 

90.  A  prosecution  for  the  offense  de- 
scribed by  a  statute  providing  that  one 
finding  lost  property  and  appropriating  it 
to  his  own  use,  with  means  of-  finding  the 
owner  but  without  effort  to  do  so,  is 
guilty  of  larceny,  need  not  be  by  informa- 
tion drawn  under  that  section,  but  the  in- 
formation may  charge  larceny  generally. 
Berry  v.  State,  31:  849,  111  Pac.  676,  4  Okla. 
Crim.  Rep.  202. 

91.  Where  goods  which  were  the  separate 
property  of  a  wife  were  stolen  from  the 
house  of  her  husband,  in  which  she  was 
residing,  it  is  not  sufficient  to  lay  them 
in  the  indictment  as  the  property  of  the 
husband.  Rex  v.  Murray,  3  B.  R.  C.  775, 
[1906]  2  K.  B.  385.  Also  Reported  in  75 
L.  J.  K.  B.  N.  S.  593,  70  J.  P.  295,  95  L. 
T   N.  S.  295,  22  Times  L.  R.  596. 

(Annotated) 
Robbery. 

Allegations  as  to  intent,  see  supra,  30. 
Variance   between   pleading   and   proof,   see 
Evidence,  2506,  2510. 

92.  An  indictment  for  robbery  in  taking 
a  stud  or  stone  ornament  supported  by  a 
screw  or  spiral  is  sufficient,  which  de- 
scribes it  as  a  pin.  People  v.  Nolan,  34: 
301,  95  N.  E.  140,  250  111.  351. 

( Annotated ) 
Bnrglary. 

Surplusage  in,  see  supra,  19. 
Variance   between   pleading   and    proof,   see 
Evidence,  2511. 

93.  An  indictment  charging  burglary  of 
a  room  in  a  hotel  is  not  void  on  its  face 
where  the  statute  makes  one  guilty  of 
burglary  who  enters  any  dwelling  house  or 
other  building  with  intent  to  commit  cer- 
tain offenses.  People  v.  Carr,  41:  1209,  99 
N.  E.  357,  255  111.  203. 

94.  An  indictment  for  burglary  of  a 
chicken  house  need  not  charge  that  the 
building  was  specially  constructed  for  the 
keeping  of  valuable  things.  Lucas  v.  State, 
3:  412,  39  So.  821,  144  Ala.  63. 
Embezzlement. 

See  also  supra,  51,  52. 

95.  An  indictment  charging  embezzle- 
ment from  an  insurance  company  is  not  de- 
fective in  failing  to  allege  the  "business  in 
which  the  principal  is  engaged.  State  v. 
Blakemore,  27:  415,  126  S.  W.  429,  226  Mo. 
560. 

96.  An   information   against  the   officers 
of    a   trust   company    for   embezzling    state  j 
funds  deposited  with   it   is  not  insufficient 
Digest  1-52  L.R.A.(N.S.) 


j  in  failing  to  allege  that  such  company  was 
an  active  depositary  of  such  funds  under 
the  provisions  of  the  statute,  or  that  it  sus- 
tained an  official  relation  to  the  state,  if  it 
alleges  that  the  officers  acting  for  the  trust 
company  had  in  their  possession  a  certain 
sum  which  belonged  to  the  state,  and  was 
part  of  its  educational  funds,  deposited  by 
the  state  for  safe-keeping,  to  be  returned  by 
defendants  to  the  state,  which  are  the  con- 
ditions prescribed  by  statute,  such  allega- 
tions being  sufficient  to  determine  the  iden- 
tity of  the  offense.  State  v.  Ross,  42:  601, 
104  Pac.  596,  106  Pac.  1022,  55  Or.  450. 

97.  An  indictment  under  U.  S.  Rev.  Stat. 
§  5467  (U.  S.  Comp.  Stat.  1901,  p.  3691), 
which  provides  for  the  punishment  of  "any 
person  employed  in  any  department  of  the 
postal  service,"  who  shall  embezzle  any  let- 
ter intrusted  to  him,  or  which  shall  come  in- 
to his  possession,  and  which  was  intended  to 
be  conveyed  by  mail,  which  fails  to  show 
that  the  letter  embezzled  came  into  the  pos- 
session of  the  accused  as  an  employee  of  the 
postal  service,  is  fatally  defective.  United 
States  V.  Aurandt,  27:  1181,  107  Pac.  1064, 
15  N.  M.  292. 

98.  The  description  of  a  check  as  "one 
check  of  the  value  of  forty-two  and  50/100 
($42.50)  dollars,"  in  an  indictment  under 
§  19,  chapter  145,  West  Virginia  Code  1906, 
sufficiently  describes  the  check  charged  to 
have  been  embezzled.  State  v.  Fraley,  42  ^ 
498,  76  S.  E.  134,  71  W.  Va.  100. 
Sodomy. 

99.  An  indictment  for  sodomy  which 
follows  the  language  of  the  statute  is  suffi- 
cient without  describing  the  acts  which  con- 
stitute the  offense,  if  the  general  charac- 
ter of  the  act  which  accused  is  alleged  to 
have  committed  sufficiently  appear  to  show 
which  provision  of  the  statute  is  applicable. 
Glover  v.  State,  45:  473,  101  N.  E.  629,  179 
Ind.  459. 

Offenaes    by   bank    officers. 
See  also  supra,  96;  infra,  130. 

100.  A  charge  in  an  indictment  under  a 
statute  making  it  an  offense  punishable 
by  imprisonment  for  any  officer  to  receive 
money  on  deposit  in  a  bank,  where  the  one 
receiving  it  knows,  or  has  good  cause  to 
know,  that  the  bank  is  unsafe  or  insolvent, 
that  a  particular  person  deposited  in  a  spec- 
ified bank,  for  his  credit,  a  check  on  an- 
other bank,  and  that  it  was  received  for  the 
bank  by  its  president,  naming  him,  and  ac- 
cepted on  deposit,  satisfies  all  the  essentials 
of  such  statute  as  to  an  officer  of  a  bank  ac- 
cepting or  receiving  money  on  deposit.  El- 
lis V.  State,  20:  444,  119  N.  W.  1110,  138 
Wis.  513. 

Sale    of   intoxicating   liquor. 
Variance  between  indictment  and  proof,  see 

Evidence,  255. 
See  also  supra,  14,  22,  23,  33,  36-38. 

101.  In  charging  a  violation  of  a  statute 
forbidding  any  person  to  bring  into*  local 
option  territory,  transfer,  deliver,  or  dis- 
tribute any  intoxicating  liquors,  the  indict- 
ment need  not  refer  to  the  act  of  Congress 
known  as  the  Webb-Kenyon  law,  which 
withdraws  from  such  traffic  the  protection 


1476 


INDICTMENT,  INFORMATION,  AND  COMPLAINT,  II.  f,  g. 


accorded  interstate  commerce.  Adams  Exp. 
Co.  V.  Com.  48:  342,  157  S.  W.  908,  154  Ky. 
462. 

102.  An  indictment  or  information  for  a 
single  sale  of  intoxicating  liquors  must  al- 
lege the  name  of  the  person  or  persons  to 
whom  such  sale  was  made,  when  such  name 
or  names  are  known,  but  if  unknown,  that 
fact  must  be  stated.  Fletcher  v.  State, 
23:581,  101  Pac.  599,  2  Okla.  Crim.  Rep. 
300.  (Annotated) 

10.".  The  word  "unlawfully"  is  not  neces- 
sary in  an  indictment  for  selling  liquor, 
under  W.  Va.  Code  1899,  chap.  32,  §  1  (Code 
1906,  §  913),  declaring  that  no  person  with- 
out a  state  license  shall  sell  liquor.  State 
V.  Johnson,  11:  872,  57  S.  E.  371,  62  W,  Va. 
164. 
Contempt. 

104.  An  information  charging  contempt  of 
court  in  positive  and  direct  terms  is  not  in- 
validated by  a  statement  of  the  public  pros- 
ecutor in  his  verification  thereto,  "that  the 
allegations  and  charges  in  the  within  infor- 
mation are  true,  as  he  fully  believes."  Em- 
ory V.  State,  9:  1124,  111  N.  W.  374,  78  Neb. 
547. 

Nuisance. 

105.  An  indictment  for  maintaining  a  nui- 
sance by  allowing  drinking  and  boisterous 
conduct  on  one's  property  is  not  insufficient 
for  failure  to  allege  that  the  acts  com- 
plained of  were  within  the  sight  and  hearing 
of  persons  in  the  vicinity,  if  it  alleges  that 
the  grounds  were  near  a  highway  and  vil- 
lage, and  the  acts  disturbed  the  peace,  hap- 
piness, comfort,  and  pleasure  of  persons  re- 
siding in  the  village  and  at,  on,  and  near 
the  highway.  Com.  v.  Cincinnati,  N.  O.  & 
T.  P.  R.  Co.  18:  699,  112  S.  W.  613,  139  Ky. 
429. 

Obstrncting  justice. 

106.  An  information  for  violation  of  a 
statute  making  punishable  the  resisting  of 
the  service  of  any  legal  writ  must  aver  that 
the  process  resisted  was  legal,  or  set  it  out. 
or  describe  it  in  such  manner  that  the  court 
can  see  that  it  was  in  fact  legal.  State  v. 
Knopf,  21 :  66,  96  Pac.  1076,  50  Wash.  229. 

107.  An  indictment  under  a  statute  pro- 
hibiting attempts  corruptly  to  influence  of- 
ficers of  the  courts  of  a  state  in  the  dis- 
charge of  their  duties,  for  addressing  a 
communication  to  the  judges  of  a  court  to 
influence  their  decision  in  a  case  pending 
therein,  is  not  defective  because  it  does  not 
charge  that  the  court  was  in  session  when 
the  communication  was  sent  or  received,  nor 
that  the  attempt  to  influence  the  court  was 
ineffectual,  nor  because  the  communication 
does  not  concern  the  merits  of  the  case. 
State  V.  Johnson,  21:  905,  83  N.  E.  702,  77 
Ohio  St.  461. 

f.  Amendment. 

(Bee  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  violation  of  constitutional  provision  as 
to  mode  of  commencing  prosecution,  see 
Cbiminal  Law,  141. 

Digest  1-52  i:..R.A.(N.S.) 


Sufficiency  of  verdict  on  indictment  con- 
taining more  than  one  count,  see  Tbial, 
1156. 

108.  By  leave  of  court  an  information  may 
be  amended  in  matter  of  substance  as  well 
as  of  form  after  a  plea  of  not  guilty  lias 
been  entered  and  before  the  trial  is  begun. 
State  V.  Chance,  27:  1003,  108  Pac.  789,  82 
Kan.  388. 

109.  An  amendment  of  an  indictment 
charging  the  obtaining  of  money  by  means 
of  a  check  drawn  without  credit,  by  insert- 
ing after  a  recital  of  the  method  by  which 
the  money  was  obtained  the  words  "by  in- 
dorsing defendant's  check  and  procuring 
money  thereon"  from  a  bank,  "which  was 
thereupon  paid  to  the  defendant,"  is  witiiin- 
a  statute  permitting  the  amendment  of 
indictments  in  matters  of  form  or  descrip- 
tion which  do  not  prejudice  the  substantial 
rights  of  defendant.  State  v.  Foxton,  52: 
919,  147  N.  W.  347,  —  Iowa,  — . 

110.  Upon  a  murder  trial,  where  it  ap- 
pears that  the  given  uame  of  the  person 
killed  was  "Joseph,"  instead  of  "John, '  the 
court  has  power,  under  §  34  of  the  criminal 
procedure  act  (N.  J.  Rev.  Laws  1898,  p. 
878),  to  direct  an  amendment  of  the  in- 
dictment to  correspond  with  the  facts. 
State  V.  Tolla,  3:  523,  62  Ati.  675,  72  N.  J. 
L.  515. 

111.  The  insertion  of  the  words  "wilful- 
ly" and  "deliberately"  in  an  information 
charging  murder  is  within  the  operation  of 
the  statute  allowing  any  information  to 
be  amended  in  matter  of  form  or  substance 
at  any  time  before  trial  by  leave  of  court, 
and  it  is  therefore  not  necessary  to  reverify' 
it  after  the  alteration.  State  v.  Darling, 
23:  272,  115  S.  W.   1002,  216  Mo.  450. 

112.  Where  a  statute  expressly  allows  an 
amendment  of  an  indictment  in  respect  to 
ownership  of  any  property  described  there- 
in, it  is  error  to  refuse  leave  to  amend  an 
indictment  for  feloniously  stealing  certain 
property,  by  substituting  the  name  of  a 
wife  in  place  of  that  of  her  husband  as 
the  owner.  Rex  v.  Murray,  3  B.  R.  C.  775, 
[1906]  2  K.  B.  385.  Also  Reported  in  75 
L.  J.  K.  B.  N.  S.  593,  70  J.  P.  295,  95  L. 
T.  N.  S.  295,  22  Times  L.  R.  596. 

g.  Sufflciency  to  support  conviction. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Raising  for  first  time  on  appeal  question  of 
variance  between  indictment  and  proof, 
see  Appeal  and  Errob,  766. 

Sufficiency  of  verdict,  see  Trial,  1156. 

113.  A  conviction  for  neglect  by  a  cor- 
poration of  a  duty  imposed  by  law  is  sus- 
tainable notwithstanding  the  facts  alleged 
in  the  indictment  would  be  sufficient  to  sus- 
tain an  indictment  for  manslaughter  against 
an  individual.  Union  Colliery  Co.  v.  Reg. 
2  B.  R.  C.  222,  31  Can.  S.  C.  81. 

114.  An  indictment  which  names  no  of- 
fense in  the  charging  part  is  insufficient  to 


INDICTMENT,  INFORMATION,     AND  COMPLAINT,  in. 


1477 


sustain  a  conviction.     Bennett  v.  Com.  43: 
419,  150  S.  VV.  806,  150  Ky.  604. 

^115.  "Ihe  common-law  rule  that  when  an 
indictment  charges  an  ofl'ense  which  includes 
within  it  another  less  offense,  or  one  of  a 
lower  degree,  the  accused,  though  acquitted 
of  the  higher,  may  be  convicted  of  the  less, 
is  of  force  in  Georgia,  though  there  is  no 
statute  expressly  adopting  the  rule.  Watson 
V.  State,  21:  I,  43  S.  E.  32,  116  Ga.  607. 

116.  In  order  to  convict  of  a  lesser  offense 
or  one  of  a  lower  degree  under  an  indict- 
ment charging  a  higher,  the  averments  of 
the  indictment  must  contain  allegations  es- 
sential to  constitute  a  charge  of  the  lesser. 
Watson  V.  State,  21:  i,  43  S.  E.  32,  116  Ga. 
607. 

117.  The  statutory  power  to  convict  of 
a  lesser  degree  of  crime  than  that  charged 
does  not  apply  in  case  of  one  charged  with 
murder  in  the  perpetration  of  a  burglary, 
since  such  a  homicide  is  murder  in  the  first 
degree  regardless  of  the  intent.  People  v. 
Schleiman,  27:  1075,  90  N.  E,  950,  197  N.  Y. 
383. 

118.  One  accused  of  murder  may  be  con- 
victed of  involuntary  manslaughter,  al- 
though the  latter  offense  does  not  contain 
all  the  elements  of  the  former.  Gibson  v. 
Somers,  24:  504,  103  Pac.  1073,  31  Nev.  531. 

119.  That  one  is  indicted  for  murder  in 
the  first  degree  does  not  prevent  the  court 
f.om  permitting  a  conviction  for  murder  in 
the  >cond  degree  if  the  evidence  tends 
to  support  it.  State  v.  Feeley,  3:  351,  92 
S.  W.  663,  194  Mo.  300. 

120.  Under  an  indictment  for  murder,  the 
accused  may  be  convicted  of  shooting  at  an- 
other, if  the  lesser  offense  is  one  involved  in 
the  homicide,  and  is  sufficiently  charged  in 
the  indictment.  Watson  v.  State,  21:  1,  43 
S.  E.  32,  116  Ga.  607.  (Annotated) 

121.  An  indictment  for  murder,  which  al- 
leged that  W.,  the  accused,  a  certain  pistol 
loaded  with  gunpowder  and  leaden  balls 
which  W.  then  and  there  had  and  held  in,  at, 
towards,  and  upon  R.,  unlawfully,  felonious- 
ly, wilfully,  and  of  his  malice  aforethought, 
did  shoot  off  and  discharge,  giving  to  R., 
then  and  there,  a  mortal  wound,  of  which 
he  died,  sufficiently  charges  the  offense  of 
shooting  at  another.  Watson  v.  State,  21:  i, 
43  S.  E.  32,  116  Ga.  607. 

122.  Upon  an  information  charging  mur- 
der, the  defendant  cannot  he  convicted  of 
an  assault  with  a  deadly  weapon  or  instru- 
ment, where  the  information  does  not  con- 
tain an  allegation  that  the  murder  was 
committed  by  an  assault  with  a  deadly 
weapon  or  instrument  or  by  any  means  01 
force  likely  to  produce  great  bodily  injurv. 
Re  McLeod,  43:  813,  128  Pac.  1106,  23  Idaho, 
257.  (Annotated) 

123.  Under  an  indictment  charging  cut- 
ting and  wounding,  with  intent  to  maim, 
disfigure,  and  kill,  thereby  , causing  great 
bodily  harm,  proof  of  an  injury  inflicted 
otherwise  than  by  cutting  or  wounding  can- 
not be  made,  although  the  statute,  besides 
inhibiting  stabbing,  cutting,  and  wounding, 
makes  it  a  felony  for  a  person  maliciously 
Digest  1-52  L.R.A.(N.S.) 


to  cause  another  bodily  harm  by  any  means, 
with  intent  to  maim,  disfigure,  or  kill  him. 
State  V.  Gibson,  28:  965,  68  S.  E.  295,  67  VV. 
Va.  548. 

124.  A  common-law  indictment  for  per- 
jury is  sufficient  to  support  a  conviction 
for  the  statutory  crime,  where  the  common 
law  and  statutory  crimes  are  substantially 
the  same.  State  v.  Eaid,  33:  946,  104  Pac. 
275,  55   Wash.   302.  (Annotated) 

125.  The  mere  fact  that  the  bill  of  par- 
ticulars to  a  charge  of  larceny  in  selling 
collateral  securities  without  authority 
states  facts  showing  that  accused,  at  the 
time  of  taking  the  pledge,  expressed  an  in- 
tention of  repledging  it  as  collateral,  where- 
as he  intended  to  sell  it,  does  not  require 
proof  of  larceny  by  obtaining  property  by 
false  pretenses.  Com.  v.  Althause,  31:  999, 
93  N.  E.  202,  207   Mass.  32, 

126.  Under  an  information  charging  a  de 
fendant  with  conducting  a  banking  and 
percentage  game,  played  with  certain  de- 
vices, for  money,  and  other  representatives 
of  value,  a  conviction  cannot  be  had  upon 
proof  that  the  accused  conducted  a  "turf 
exchange,"  where  his  patrons  congregated 
and  bet  upon  horse  races  run  at  another 
place.  James  v.  State,  34:  515,  112  Pac. 
944,  4  Okla.  Crim.  Rep.  587. 

127.  An  indictment  for  housebreaking  is 
not  supported  by  evidence  of  entering 
through  an  open  window,  and  stealing  prop- 
erty within  the  house.  Smith  v.  Com.  27: 
1023,  128  S.  W.  68,  —  Ky.  — . 

128.  A  charge  of  keeping  a  disorderly 
house  on  a  certain  street  in  a  certain  city, 
with  nothing  to  indicate  the  location,  will 
not  support  a  judgment  of  abatement. 
King  v.  Com.  48:  253,  159  S.  W.  593,  154 
Ky.  829. 

129.  One  prosecuted  upon  a  charge  of 
setting  up  and  keeping  a  gambling  device 
may  be  convicted  of  the  inferior  offense  of 
betting  upon  a  game  of  chance  at  a  gam- 
bling resort,  if  the  information  alleges  the 
existence  of  all  the  essential  facts  consti- 
tuting the  lesser  offense.  State  v.  Way, 
14:  603,  93  Pac.  159,  76  Kan-  928. 

130.  An  indictment  against  a  bank  officer 
for  converting  money  of  the  state  is  prima 
facie  supported  by  evidence  that,  although 
checks  were  deposited  for  collection,  a  part 
of  which  were  against  the  collecting  bank 
itself,  the  collections  were  treated  as  made, 
and  the  state  credited  on  the  books  of  the 
bank  with  their  amount  as  cash,  and  that 
the  funds  in  this  account  were  those  con- 
verted. State  V.  Ross,  42:  601,  104  Pac. 
596,  106  Pac.  1022,  55  Or.  450. 

131.  Conviction  may  be  had  for  prescrib- 
ing medicines  for  the  sick  without  license, 
under  an  indictment  charging  the  prescrib- 
ing and  furnishing,  where  the  statute  makes 
it  an  offense  to  prescribe,  as  well  as  to  pre- 
scribe and  furnish.  State  v.  Bresee,  24:  103, 
114  N.  W.  45,  137  Iowa,  673. 

III.  Joinder  of  counts  or  persons. 

(See   also    same   heading   in  Digest  L.R.A. 
1-10.) 


1478  INDICTMENT,  INFORMATION,  AND  COMPLAINT,  IV.— INEBRIATES. 


Compelling  state  to  elect  between  counts  in 
indictment,  see  Fobgb:by,  4. 

IV.  Quashing. 

(See  also   same   heading   in  Digest   LJt.A 
1-10.) 

How  question  of  sufficiency  of  indictment 
may  be  raised,  see  Criminal  Law,  154, 
155. 

Finding  second  indictment  after  demurrer 
is  sustained  to  first,  see  Gband  Juby,  4. 

Effect  of  mandamus  to  overrule  order  quash- 
ing indictment,  see  Mandamus,  26. 

132.  An  indictment  cannot  be  quashed  be- 
cause it  rests  in  whole  or  part  on  incompe- 
tent evidence.  State  t.  Woodrow,  a:  862, 
52  S.  E.  545,  58  W.  Va.  527. 

133.  A  motion  to  quash  an  information 
charging  violation  of  an  ordinance  in  sev- 
eral particulars  will  not  prevail  if  a  good 
cause  of  action  is  stated  as  to  either  of  the 
defaults  complained  of.  St.  Louis  v.  Grafe- 
man  Dairy  Co.  1 :  936,  89  S.  W.  617,  190  Mo. 
492. 

134.  A  material  portion  of  an  indictment 
consisting  of  a  single  count  cannot  be 
quashed,  leaving  the  remainder  of  the  allega- 
tion to  stand  intact,  since  accused  has  a 
right  to  be  tried  on  the  indictment  as  pre- 
sented. Duty  V.  State,  22:  469,  114  S.  W. 
817,  54  Tex.  Crim.  Rep.  613.         (Annotated) 

135.  An  indictment  cannot  be  quashed  be- 
cause a  former  one  for  the  same  ofifense  is 
pending.  Thompson  v.  United  States,  47: 
206,  202  Fed.  401,  120  C.  C.  A.  575. 

136.  An  indictment  cannot  be  quashed  be- 
cause it  was  found  upon  illegal  evidence. 
Xoll  V.  Dailey,  47:  1207,  79  S.  E.  668,  72 
VV.  Va.  520.  (Annotated) 

137.  An  indictment  under  §  151oa80,  W. 
Va.  Code  Supp.  1909,  for  obstructing  a 
public  road,  which  charges  that  the  defend- 
ant obstructed  "a  certain  road  and  pass 
way,  .  .  .  said  road  and  pass  way  be- 
ing lawfully  owned  and  used  by  said  A.  S. 
P.,"  and  which  omits  the  words,  "and  to 
which  road  the  public  has  a  right  of  or  is 
not  denied  the  use,"  emploj'cd  in  §  1515a  of 
the  V/est  Virginia  statute  defining  a  public 
road,  failing  to  describe  a  public  road,  does 
not  charge  an  offense  under  the  statute,  and 
should  be  quashed  on  demurrer.  State  v. 
Massie,  47:  679,  78  S.  E.  382,  72  W.  Va.  444. 

138.  If  the  county  attorney  is  disquali- 
fied from  representing  the  state  in  the 
prosecution  of  a  party  charged  with  crime, 
said  county  attorney  is  without  authority 
to  appoint  a  special  attorney  to  represent 
him  before  the  grand  jury  in  the  investi- 
gation of  said  cause,  and  an  indictment 
found  as  the  result  of  such  investigation 
upon  motion  of  the  defendant  should  be 
set  aside.  Hartgraves  v.  State,  33:  568,  114 
Pac.  343,  5  Okla.  Crim.  Rep.  266. 

( Annotated ) 

139.  No  person  has  a  right  to  be  in  the 
grand  jury  room  during  any  of  their  pro- 
ceedings while  investigating  a  criminal 
charge,  except  the  witness  then  being  ex- 
Digest  1-52  I^R.A.(N.S.) 


amined  and  the  attorney  authorized  by  law 
to  represent  the  state  in  such  examinations: 
and,  if  any  otlier  person  is  in  the  grand 
jury  room  during  any  part  of  their  inves- 
tigations, an  indictment  found  by  them  as 
the  result  of  such  investigation  should,  upon 
motion  of  the  defendant,  be  set  aside.  Hart- 
graves  V.  State,  33:  568,  114  Pac.  343,  5 
Okla.  Crim.  Rep.  266. 

140.  Where  a  counsel  privately  employed 
to  prosecute  a  case  appears  before  a  grand 
jury  and  assumes  to  represent  the  state 
upon  the  investigation  of  a  case  then  pend- 
ing before  said  grand  jury,  an  indictment 
found  by  said  grand  jury  as  the  result  of 
such  investigation  should,  upon  motion  of 
the  defendant,  be  set  aside.  Hartgraves  v. 
State,  33:  568,  114  Pac.  343,  5  Okla.  Crim. 
Rep.  266. 


INDIGXarr  PERSONS. 


See  PooB  AND  PooB  Laws. 


INDORSEMENT. 


Forgery  of,  see  Banks,  IV.  a,  3,  b,  3. 

Payment  by  bank  of  check  with  invalid  in- 
dorsement, see  Banks,  91. 

On  bill  or  note,  see  Bills  and  Notes,  III. 

Effect  of  blank  indorsement  to  impart  nego- 
tiability to  non-negotiable  instrument, 
see  Bills  and  Notes,  40. 

Of  checks,  see  Checks. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  31-35. 

Parol  evidence  as  to,  see  Evidence,  993- 
1000. 

On  insurance  policy  as  part  of  contract,  see 
Insukance,  179. 

Agent's  authority  to  mjUce,  see  Pbikcipal 
▲NS  AOENT,  55,  58. 


INDUCEMENT. 


Parol   evidence   as  to,   see   Evidencie,   946- 

949. 
Admissibility  of  confession  procured  by,  see 

Evidence,  1213-1219. 


INDUSTRIAI.    SCHOOL. 

Commitment  of  delinquent  children  to,  see 
Infants,  25. 


INEBRIATES. 


Compulsory  treatment  of,  see  CoNSTmr- 
TioNAL  Law,  356. 

Setting  aside  percentage  of  liquor  license 
fees  for  purpose  of  establishing  hos- 
pital for,  see  Taxes,  120. 

In  general,  see  Deunkenness. 


INEVITABLE  ACCIDENT;   INFANTS. 


1479 


INEVITABI.E  ACCIDENT. 

Right  of  bailor  to  recover  against  third 
person  for  loss  of  horse  by,  see  Bail- 
ment, 2. 

As  ground  for  nonperformance  of  contract, 
see  Contracts,  IV.  b,  2. 

As  excuse  for  breach  of  contract,  see  Con- 
tracts, 635-637. 

See  also  Act  of  God. 


INFANTS. 


I.  In      general;      control;      support; 
rights   and   liabilities,    1—99. 

a.  In   general,    1—9. 

b.  Support  of,  and  care  for,  10- 

18. 

c.  Custody,  19—54. 

d.  Disabilities      and      liabilities, 

55-99. 

1.  In   general,    55—59. 

2.  Contracts,   60—99. 

a.  In  general,   60—68. 

b.  Ratification      or      dis- 

affirmance,   69—99. 
II.  Sale,    mortgage,    or   lease    of   real 
estate,   100—106. 
III.  Actions,    107-113. 

Advancements  to,  see  Advancements. 

Adverse  possession  against,  see  Advebsb 
Possession,  12. 

Misrepresentation  of  age  by,  see  False 
Pretenses,  6;  Master  and  Servant, 
154-156,  173-176. 

Determining  claim  of  infancy  by  inspection 
in  court,  see  Evidence,  880. 

Admissibility  of  minor  employee's  declara- 
tions as  to  his  age,  see  Evidence,  1236. 

Assault  by  father  on  child,  see  Assault 
AND  Battery,  14,  15. 

Authority  of  attorney  for,  see  Attorney, 
42. 

Child  traveling  with  adult  without  pay- 
ment of  fare  as  passenger,  see  Carriers, 
85. 

Ejection  for  refusal  to  pay  fare  of,  see  Car- 
riers, 420a. 

Ejection  of  minor  trespasser  from  train, 
see  Carriers,'  399. 

Damages  for  wrongful  ejection  of,  from  rail- 
way train,  see  Damages,  667. 

Requiring  street  railways  to  carry  free  or 
at  reduced  rates,  see  Carriers,  1030- 
1032;  Constitutional  Law,  496-498; 
Contracts,  511. 

Naming  child  as  consideration  for  promise, 
see  Contracts,  123. 

Rights  and  duties  of  parent  as  to  burial  of 
child,  see  Corpse,  6-8. 

Liability  of  father  for  burial  expenses  of 
child,  see  Parent  and  Child,  8. 

Jurisdiction  in  matters  aJffecting,  see 
Courts,  245,  246. 

Knowledge  of  girl's  age  as  element  of  crime 
of  harboring  female  under  eighteen  for 
purpose  of  sexual  intercourse,  see 
Criminal  Law,  16. 

Digest  1-52  KR.A.CN.S.) 


Damages  for  unlawful  arrest  and  prosecu- 
tion of,  see  Damages,  620. 

Damages  recoverable  by,  for  negligent  kill- 
ing of  parent,  see  Damages,  391-393, 
400. 

Right  of  action  by,  for  death  of  parent,  see 
Death,  9,  31-33. 

Forbidding  presence  of,  in  dance  hall,  see 
Constitutional  Law,  245,  696;  Crimi- 
nal Law,  14;  Evidence,  2420;  Indict- 
ment, etc.,  54;  Statutes,  249. 

Delinquent  children,  see  Constitutional 
Law,  357,  358;  Courts,  246;  Judg- 
ment, 242. 

Domicil  or  residence  of,  see  Courts,  17; 
DoMiciL,  2,  3;  Evidence,  767;  Schools, 
6-8. 

Master's  liability  for  injury  to  passenger 
on  elevator  operated  by,  see  Elevators, 
2. 

Libel  in  charging  mother  with  abuse  of,  see 
Evidence,  677. 

Presumption  from  lapse  of  time  of  service 
of  process  on,  see  Evidence,  678. 

Enticing  minor  from  parents,  see  Evidence, 
2422. 

Guardianship  of,  see  Guardian  and  Ward. 

Habeas  corpus  to  secure  discharge  of  minor 
who  has  deserted  from  Navy  and  been 
recaptured,  see  Habeas  Corpus,  75. 

Liability  of  pyhsician  for  manslaughter 
where  child's  death  results  from  im- 
proper diet  prescribed  by  him,  see 
Homicide,  7,  74. 

Indictment  for  failure  to  send  child  to 
,    school,  see  Indictment,  etc.,  53. 

Right  to  interest  on  money  collected  by  at- 
torneys for  benefit  of  infant,  and  paid 
over  to  his  father,  where  latter  fails  to 
account,  see  Interest,  43. 

Sale  of  liquor  to,  see  Intoxicating  Li- 
quors, 150,  151,  154-158. 

Permitting  infant  to  be  present  in  saloon, 
see  Intoxicating  Liquors,  38,  39. 

When  action  by,  to  recover  interest  in  home- 
stead is  barred,  see  Limitation  of  Ac- 
tions, 255. 

Marriage  of,  see  Marriage,  14-16,  29,  43- 
45. 

Statute  forbidding  performance  of  marriage 
ceremony  for,  see  Evidence,  2416. 

Implied  agreement  to  pay  for  services  of, 
see  Contracts,  32,  35. 

Judicial  notice  as  to  capacity  of  child  to 
render  valuable  services,  see  Evidence, 
57. 

Question  for  jury  as  to  value  of  child's  serv- 
ices, see  Trial,  657,  658. 

Set-off  for  child's  wrongful  act  in  action  by 
parent  for  wages,  see  Set-Off  and 
Counterclaim,  5. 

Empowering  employer  to  determine  infant's 
right  to  benefit  of  employees'  compen- 
sation act,  see  Constitutional  Law, 
71. 

Mechanics'  lien  on  land  of,  see  Mechanics' 
Lien,  S,  9. 

Enlistment  of,  in  militia  without  consent  of 
parent,  see  Militia. 

Relation  of,  to  parents  generally,  see  Par- 
ent and  Child. 

Adoption  of,  see  Parent  and  Child,  III. 


1480 


INFANTS,  I.  a. 


Right  to  sue  on  promise  to  parent,  see  Par- 
ties, 84. 

Necessity  of  parents'  consent  to  operation 
on,  see  Physicians  and  Surgeons,  40, 
41. 

Sufficiency  of  answer  on  behalf  of,  in  bill  to 
partition  land,  see  Pleading,  511. 

Pension  to  indigent  mother  of,  see  POOB 
AND  Poor  Laws,  1-4. 

Rape  of,  see  Rape,  5-7. 

Seduction  of,  see  Seduction,  1,  4. 

Compulsory  education  of  children,  see 
Schools,  13,  14. 

Right  of  parent  to  select  course  of  study 
for  child,  see  Schools,  62,  63. 

Coimterclaim  for  payments  in  action  to  re- 
cover property  sold  conditionally  to  in- 
fant, see  Set-Off  and  Counterclaim, 
15. 

Specific  performance  of  promise  that  child 
shall  share  in  estate  of  promisor,  see 
Specific  Performance,  71-76. 

Partial  invalidity  of  statute  as  to  juvenile 
offenders,  see  Statutes,  74. 

Negligence  toward,  see  Appeal  and  Er- 
ror, 1108,  1342,  1645;  Carriers,  399, 
489-494;  COURTS,  324;  Criminal  Law, 
55;  Electricity,  14,  25,  26,  68-74; 
Elevators,  1,  9a,  10,  12,  13;  High- 
ways, 169,  177-181,  266,  271,  276, 
288a;  Master  and  Servant,  147-177, 
881,  907-910,  939,  940,  982,  987; 
Municipal  Corporations,  325,  340- 
344;  Negligence,  I,  c,  2,  b;  Railroads, 
II.  e,  3;  77,  84-89,  99,  100,  115,  120, 
137;  Street  Railways,  17,  21,  49-51;. 
Trial,  128,  145,  442,  548,  549,  565. 

Negligence  of,  see  Automobiles,  71,  72; 
Carriers,  376,  566-568;  Evidence,  474; 
Highways,  345;  Master  and  Servant, 
645-650,  658,  664-669;  NegligExNCE,  II. 
b,  1;  II.  e,  2;  Street  Railways,  80, 
81;  Trial,  461,  516-519,  550,  651. 

Assumption  of  risk  by,  see  Master  and 
Servant,  II.  b,  7 ;  Trial,  536,  537,  586. 

Contributory  negligence  of  parents  of,  see 
Death,  45-49;  Evidence,  481;  Negli- 
gence, 229-231,  274-276;  Pleading, 
343;  Trial,  420. 

Survival  of  cause  of  action  for  personal  in- 
jury to,  see  Abatement  and  .Revival, 
15,  17. 

Action  by  father  for  injury  to,  see  Con- 
tinuance and  Adjournment,  3. 

Federal  courts  following  state  decision  as 
to  liability  for  injury  to,  see  Courts, 
324. 

Measure  of  damages  for  injury  to,  see  Dam- 
ages, 367,  368,  416,  425,  430;  Evi- 
dence, 1717,  1724. 

Measure  of  damages  for  death  of,  see 
Damages,  394-396,  399,  403,  435-437, 
617;  Evidence,  1727,  1728;  Trial, 
890. 

Failure  to  itemize  funeral  expenses  in  ac- 
tion for  death  of  child,  see  Pleading, 
633. 

Increasing  on  appeal  allowance  for  negli- 
gent killing  of,  see  Appeial  and  Error, 
1594. 

Digest  1-52  L.R.A.(N.S.) 


Reducing  on  appeal  amount  of  damages  for 
injury  to,  see  Appeal  and  EiiROK,  1,595. 

Right  of  action  for  death  of,  see  Death, 
16,  20-29. 

Exclusiveness  of  statutory  remedies  for 
negligent  killing  of,  see  Election  of 
Remedies,  10. 

Evidence  generally  in  acti..n  for  injury  to, 
see  Evidence,   1235,  1414,   1823,  2171. 

Effect  of  compromise  of  action  for  personal 
injuries  on  right  to  institute  subse- 
quent suit,  see  Judgment,   143. 

Death  of  tenant's  child  caused  by  defects 
in  premises,  see  Landlord  and  Ten- 
ant, 149. 

Master's  liability  for  failure  of  employee 
to  protect  his  own  child,  see  Negli- 
gence, 276. 

Effect  on  right  to  recover  for  death  of 
child  caused  by  nuisance  of  lack  of 
interest  in  premises  affected  by  nui- 
sance,   see  Nuisances,    70. 

Allegation  as  to  damages  in  action  for 
death  of,  see  Pleading,  214,  215. 

Declarations  in  action  for  injury  to  infant 
employee,  see  Pleading,  310,  311. 

Proximate  cause  of  injury  to,  see  Proxi- 
mate Cause,  37,  62-68,  138-142; 
Trial,  683. 

Proximate  cause  of  death  of,  see  Proxi- 
mate Cause,  166. 

Demurrer  to  evidence  in  action  for  death 
of,  see  Trial,   795. 

I.  In  general;  control;  support;  rights 
and  liabilities. 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Rights  of,  in  highways,  see  Highways,  177- 
181. 

1.  The  state  may  exercise  unlimited 
supervision  and  control  over  the  contracts, 
occupation,  and  conduct  of  minors,  and  the 
liberty  and  rights  of  those  who  assume  to 
deal  with  them.  State  v.  Shorey,  24:  1121, 
86  Pac.  881,  48  Or.  396. 

2.  It  is  not  an  infringement  of  any  con- 
stitutional right  of  a  minor  for  the  state 
summarily  to  lay  hold  of  him  when  deprived 
or  bereft  of  his  parents  or  guardian,  and 
give  to  him  the  fostering  care,  protection, 
and  education  due  him  from  his  parent  or 
guardian,  since  such  a  child  is  not  entitled 
to  his  absolute  and  unqualified  freedom  and 
liberty  during  his  minority.  Re  Sharp, 
i8:  886,  96  Pac.  563,  15  Idaho,  120. 

3.  Idaho  Sess.  Laws  1905,  p.  106,  pro- 
viding for  the  care,  and  for  the  prevention 
of  prosecution  and  conviction  on  charges  of 
misdemeanors,  of  delinquent  children  under 
the  age  of  sixteen,  is  not  in  conflict  with 
any  constitutional  guaranties  applicable  to 
criminal  procedure,  since  the  statute  is  not 
criminal  or  penal  in  its  nature,  but  is  in- 
tended to  relieve  from  the  odium  of  criminal 
prosecution  and  punishment  by  conferring 
the    favor,    privilege,    and    opportunities    of 


INFANTS,  I.  b. 


1481 


better  influences  and  education.     Re  Sharp, 
i8:  886,  96  Pac.  563,  15  Idaho,  120. 
Religious  instruction  of. 
See   also   infra,   30. 

4.  Although  it  is  the  general  policy  of 
the  state  to  secure  to  its  wards  of  tender 
jears  the  right  to  be  brought  up  in  the  re- 
ligion of  their  parents,  the  parent  has  no 
right  to  insist  upon  such  course  if  the  best 
interest  of  the  child  will  be  conserved  by 
permitting    its   adoption   by    persons   of    an- 

*  other  religious  belief.  Purinton  v.  Jam- 
rock,   i8:  926,  80  N.  E.  802,  195  Mass.   187. 

Prohibited  employment  of;  hours  of 
labor. 

Application  of  statute  forbidding  employ- 
ment of  children  to  work  done  within 
state  under  contract  executed  outside  of 
it,  see  Conflict  of  Laws,  7. 

Police  power  as  to,  see  Constitutional 
Law,  718. 

Regulating  hours  of  labor  of,  see  Consti- 
tutional   Law,    484,    485. 

Statute  regulating  employment  of,  see 
Mastee  and  Servant,  94-96. 

Unlawful  employment  of,  see  Masteb  and 
Servant,  157-177;  Statutes,  319; 
Trial,  145. 

Right  to  set  up  contributory  negligence  in 
case  of  unlawful  employment,  see  Mas- 
ter AND  Servant,  664-669. 

Delegation  of  power  as  to  employment  of, 
see  Constitutional  Law,  118. 

Employment  of,  without  consent  of  parent, 
see  also  Master  and  Servant,  7. 

As  proximate  cause  of  injury  to  infant  em- 
ployee, see  Proximate  Cause,  138- 
141. 

5.  Forbidding  the  employment  of  chil- 
dren under  twelve  years  of  age  in  factories 
or  manufacturing  establishments  does  not 
violate  the  f^onstitutional  rights  of  the  child 
or  its  parent.  Starnes  v.  Albion  Mfg.  Co. 
17:  602,  61  S.  E.  525,  147  N.  C.  556. 

(Annotated ) 

6.  The  enactment  of  a  statute  forbid- 
ding the  employment  of  children  under  four- 
teen years  of  age  in  any  theater,  concert 
hall,  or  in  or  about  any  place  of  amuse- 
ment where  intoxicating  liquor  is  made  or 
sold  is  a  valid  and  constitutional  exercise 
of  the  legislative  power.  State  v.  Rose, 
26:  821,  51  So.  496,  125  La.  462. 

7.  Any  acting  or  performing  on  the 
stage  of  a  theater  is  labor  or  work  within 
the  meaning  of  a  statute  forbidding  the  em- 
ployment of  children  under  fourteen  years 
of  age  "to  work  or  labor"  in  any  theater, 
concert  hall,  or  in  or  about  any  place  of 
amusement  where  intoxicating  liquor  is 
made  or  sold.  State  v.  Rose,  26:  821,  51 
So.  496,  125  La.  462. 

8.  The  words  "where  intoxicating  li- 
quors are  made  or  sold"  as  used  in  a  statute 
forbidding  the  employftent  of  children  un- 
der fourteen  years  of  age  "to  labor  or  work 
in  any  theater,  concert  hall,  or  in  or  about 
any  place  of  amusement  where  intoxicating 
liquors  are  made  or  sold"  do  not  qualify  the 
word  "theater"  so  as  to  render  the  law 
applicable  only  to  theaters  or  concert  halls 
Digest   1-52  L.R.A.(N.S.) 


where  intoxicants  are  sold.     State  v.  Rose, 
26:  821,  51  So.  496,  125  La.  462. 

9.  Limiting  the  hours  during  which  a 
child  may  labor  does  not  interfere  with  the 
constitutional  rights  of  the  parent  with  re- 
gard to  it.  State  v.  Shorey,  24:  1121,  86 
Pac.  881,  48  Or.  396. 

b.  Support  of,  and  care  for. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Consideration  for  contract  for,  see  Con- 
tracts, 71,   108. 

Public  policy  as  to  contract  respecting,  see 
Contracts,  487,  488. 

Jurisdiction  of  prosecution  of  father  for 
failure  to  support  child,  see  Courts, 
31,  32. 

In  case  of  (divorce,  see  Divorce  and  Sepa- 
ration, VII. 

Retaining  bill  to  obtain  custody  of  children, 
see  Equity,  126-128. 

Criminal  liability  for  neglect  of  child,  see 
Homicide,    12-16. 

After  desertion  by  father,  see  Husband 
and  Wife,  198,  210-212. 

Support  of,  upon  annulment  of  marriage, 
see  Marriage,  43. 

Of  legitimated  child,  see  Parent  and 
Child,  30. 

Necessity  that  testamentary  trustee  for 
minor  children  obtain  permission  to 
apply  income  to  their  support,  see 
Trusts,  84. 

Condition  for  support  of,  attached  to  be- 
quest, see  Wills,  268,  269. 

Wife  as  witness  against  husband  in  prose- 
cution for  refusal  to  support  children,     , 
see  Witnesses,  32. 

Duty   to   furnish   medical   attendance. 

Prosecution  of  parent  for  manslaughter  in 

failing  to  obtain  medical  aid  for  child, 

see  Evidence,  1894. 
Evidence  as  to  cures  effected  by  Christian 

Science,  see  Evidence,  1967. 
Criminal    liability    for    failure    to    furnish 

medical  aid  to  child,  see  Homicide,  13-  • 

15. 
See  also  Appeal  and  Error,  981;   Trial, 

674. 

10.  Under  a  statute  requiring  a  parent 
to  support  his  child,  he  must  furnish 
medical  treatment  in  such  a  manner  and  on 
such  occasions  as  an  ordinarily  prudent 
person,  solicitous  for  the  welfare  of  his 
child  and  anxious  to  promote  his  recovery, 
would  provide.  Owens  v.  State,  36:  633, 
116  Pac.  345,  6  Okla.  Crim.  Rep.  110. 

11.  One  under  a  legal  duty  to  provide 
a  child  with  medical  attendance  and  reme- 
dies may  be  criminally  responsible  at  com- 
mon law  for  neglect  to  do  so.  Rex  v. 
Brooks,  1  B.  R.  C.  725,  9  B.  C.  13. 

(Annotated) 

12.  Conscientious  belief  that  it  is 
against  the  teaching  of  the  Bible  and  there- 
fore wrong  to  have  recourse  to  medical  at- 
tendance   and    remedies    is    no    excuse    for 


1482 


INFANTS,  I.  c. 


failure  to  provide  them  for  a  child.     Rex 
V.  Brooks,  1  B.  R.  C.  725,  9  B.  C.  13. 

13.  Medical  attendance  and  remedies 
may  in  a  proper  case  be  "necessaries"  with- 
in the  meaning  of  statutory  provisions  en- 
acting that  every  one  who  has  charge  of 
any  other  person  unable  by  reason  of  de- 
tention, age,  sickness,  insanity,  or  any 
other  cause  to  withdraw  himself  from  such 
charge  is  imder  a  legal  duty  to  supply  that 
person  with  the  necessaries  of  life,  and  that 
every  one  who  as  parent,  guardian,  or  head 
of  a  family  is  under  a  legal  duty  to  provide  I 
necessaries  for  any  child  under  the  age  of 
16  years  is  criminally  responsible  for  omit- 
ting, without  lawful  excuse,  to  do  so.  Rex 
v.  Brooks,  1  B.  R.  C.  725,  9  B.  C.  13;  Rex 
V.  Lewis,  1  B.  R.  C.  732,  6  Ont.  L.  Rep.  132. 

14.  As  to  whether  medical  aid,  assist- 
ance, and  treatment  by  some  one  other 
than  a  legally  qualified  physician  or  prac- 
titioner belonging  to  one  of  the  recognized 
schools  of  medicine  may  in  some  cases  sat- 
isfy the  requirements  of  the  statute  mak- 
ing every  one  under  the  legal  duty  to  pro- 
vide necessaries  for  a  helpless  person  or 
child  imder  the  age  of  16  years  criminally 
responsible  for  omitting,  without  lawful 
excuse,  to  do  so,  qucere.  Rex  v.  Lewis,  1 
B.  R.  C.  732,  6  Ont.  L.  Rep.  132. 
Liability  for  services  of  physician. 

15.  One  is  liable  for  medical  and  sur- 
gical services  rendered  to  his  stepson,  who 
is  a  member  of  his  family,  where,  although 
the  boy's  father  is  living  and  under  obliga- 
tion to  contribute  a  certain  amount  towards 
the  boy's  support,  and  no  direct  request  for 
the  services  is  made  by  the  stepfather,  the 
latter's  action  shows  approval  of  the  phy- 
sician's conduct  in  rendering  the  services. 
Monk  v.  Hurlburt,  42:  535,  138  N.  W.  59, 
151  Wis.  41.  (Annotated) 
Criminal  liability  for  failure  t«  snp- 

port. 

16.  If  parent  has  not  the  means  for  a 
child's  nurture,  it  is  his  duty  to  apply  to 
the  public  authorities  for  relief;  and  fail- 
ure to  do  so  is  itself  culpable  neglect,  wher- 
ever there  are  public  authorities  capable  of 
affording  such  relief.  Stehr  v.  State,  45:559, 
139  N.  W.  C76,  92  Neb.  755. 

17.  A  parent  may  be  guilty  under  a 
statute  requiring  parents,  who  are  able,  to 
provide  for  their  minor  children  and  provid- 
ing that  citizenship  once  acquired  by  a  par- 
ent of  any  child  in  the  state  shall  be  deemed 
for  the  purposes  of  the  act  to  continue  until 
such  child  is  sixteen  years  of  age,  provided 
the  child  so  long  continues  to  live  in  the 
state,  and  that  the  offense  shall  be  deemed 
to  have  been  committed  in  any  county  in 
which  the  child  may  be  at  the  time  the  com- 
plaint is  made,  although  he  is  a  resident  of 
another  state  during  the  time  laid  in  the 
indictment.  State  v.  Sanner,  26:  1093,  90  N. 
E.  1007,  81  Ohio  St.  393. 

18.  One  is  not  within  the  operation  of 
a  statute  providing  for  the  punishment  of 
a  father  who  refuses  or  neglects  to  fur- 
nish necessary  food,  clothing,  and  lodging 
to  hia  infant  child,  if  the  child  is  being  sup- 
plied therewith  as  far  as  is  necessary  by 
Digest  1-52  L.R.A.(N.S.) 


the  vnfe's  parents,  to  whose  house  she  had 
taken  the  child  upon  separating  from  her 
husband,  the  child's  father.  State  v.  Thorn- 
ton, 32:  841,  134  S.  W.  519,  232  Mo.  298. 

( Annotated ) 

c.    Custody, 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Review  of  order  awarding  custody  of  minor 
child,  see  Appeal  and  Ekkob,  69. 

Effect  of  appeal  from  decree  as  to,  see  Ap- 
peal AND  Erkob,  111. 

Review  on  appeal  of  discretion  as  to,  see 
Appeal  and  Erkob,  569. 

Right  .of  father  to  attend  burial  service  of 
child  whose  custody  has  been  awarded 
to  mother,  see  Case,  10. 

Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  134. 

Delinquent  children,  see  Constitutional 
Law,  357,  358;  CouBTS,  246;  Judg- 
ment, 242. 

Public  policy  as  to  contracts  respecting, 
see   Contbacts,   486,   488,   489. 

Interference  by  courts  with  judgment  of 
legislature  as  to  control  of,  see  Coubts, 
101. 

Jurisdiction  to  determine  right  of  visita- 
tion by  parent,  see  Coubts,  245. 

In  case  of  divorce,  see  Divobce  and  Sepa- 

BATION,   VII. 

Conclusiveness  of  divorce  decree  as  to,  see 

Evidence,  504. 
Evidence    in    contest    for    guardianship    of 

child,  see  Evidence,  767. 
Guardianship  of,  see  Guabdian  and  Wabd. 
Habeas    corpus    to   determine    custody,    see 

Habeas     Corpus,     48-50;     Judgment, 

90,  91. 
Of     legitimated    child,     see     Parent     and 

Child,  30. 

19.  A  stipulation  not  to  remove  a  child 
from  the  jurisdiction  of  the  court,  as  a  con- 
dition of  retaining  possession  of  it  pem.ing 
an  appeal  in  a  habeas  corpus  proceeding,  is 
not  violated  by  removing  it  to  another 
county,  where  the  jurisdiction  of  the  court 
before  which  the  stipulation  was  taken 
would  extend  into  that  county  to  compel  the 
custodian  to  appear  and  answer  for  con- 
tempt, or  show  cause  why  the  order  should 
not  be  modified.  Willis  v.  Willis,  2:  244,  75 
N.  E.  655,  165  Ind.  332. 

20.  The  court  will  not  grant  the  applica- 
tion of  a  foundling  hospital  which,  through 
a  mistake  of  its  agents  and  representatives, 
has  placed  children  which  have  come  to  its 
care  in  homes  of  filth  and  degradation  in  a 
distant  state,  to  recover  their  custody  from 
persons  of  some  means  and  education,  who, 
actuated  by  humanitarian  motives,  have  res- 
cued them  from  their  unfortunate  surround- 
ings, administered  to  their  needs,  and  be- 
came attached  to  them,  so  that  they  are 
willing  to  care  for  and  educate  them  as 
their  own,  so  that  it  appears  that  the 
change  will  not  work  for  the  best  interests 


INFANTS,  I.  c 


!l483 


of  the  children.  New  York  Foundling  Hos- 
pital V.  Gatti,  7:  306,  79  Pac.  231,  9  Ariz. 
105. 

21.  A  will  by  the  mother  of  minor  chil- 
dren, undertaking  to  give  the  custody,  care, 
anc  control  of  such  children  to  another,  is 
a  nullity,  under  Fla.  Rev.  Stat.  1892,  § 
2086,  whicn  confers  upo  the  father  alone 
the  power  to  appoint  a  testamentary  guard- 
ian for  his  infant  child  by  will  or  by  deed. 
Hernandez  v.  Thomas,  2:  203,  39  So.  641,  50 
Fla.  522.  (Annotated) 

22.  A  statute  permitting  a  father  to  dis- 
pose of  the  custody  of  his  child  during  mi- 
nority cannot  be  construed  to  permit  such 
disposal  to  take  effect  only  after  his  death, 
— at  least  where  the  statute  is  a  substitute 
for  a  prior  one,  and  omitted  the  provision 
of  the  latter  which  so  limited  his  power. 
Tillman  v.  Tillman,  26:  781,  66  S.  E.  1049, 
84  S.  C.  552. 

23.  An  agreement  between  husband  and 
wife  made  in  view  of  an  existing  separation, 
as  to  the  custody  of  their  minor  children, 
is  abrogated  by  their  reconciliation.  Till- 
man V.  Tillman,  26:  781,  66  S.  E.  1049,  84 
S.  C.  552. 

Parent's  right  te. 

Abduction  or  kidnapping  of,  see  Abduction 
AND  Kidnapping. 

Damages  for  abduction  of,  see  Damages, 
315. 

Constitutionality  of  statute  as  to,  see  Con- 
stitutional Law,  134,  355. 

Damages  for  enticing  child  from  parent, 
spe  Damages,  313,  314. 

In  action  of  divorce,  see  Divobce  and  Sepa- 
ration,  VII. 

Evidence  in  suit  to  secure  custody,  see 
Evidence,  762. 

Parent's  right  to  appoint  guardian  by  will, 
see  Guardian  and  Ward,  2,  3. 

Disqualification  of  judge  in  habeas  corpus 
proceeding  to  recover  possession  of 
child,  see  Judges,  15. 

Right  of  state  to  dispense  with  parent's 
consent  to  adoption  of  child,  see  Par- 
ent AND  Child,  33,  34. 

24.  Parents  have  no  right  of  property  in 
their  minor  children,  of  which  they  cannot 
be  deprived  without  their  consent.  Purinton 
V.  Jamrock,  i8:  926,  80  N.  E.  802,  195  Mass. 
187. 

25.  If  a  parent  deems  himself  improperly 
or  unlawfully  deprived  of  the  custody  of  his 
child  by  the  order  of  a  probate  court,  urder 
a  delinquent  children's  act,  adjudging  such 
child  a  delinquent  and  committing  it  to  an 
industrial  school,  he  may  bring  a  proceeding 
to  test  and  determine  his  rights  and  the 
authority  under  which  he  has  been  deprived 
of  such  rights,  if  he  was  not  made  a  party 
to  and  did  not  appear  in  the  original  pro- 
ceedings against  his  child.  Re  Sl-.«rp, 
18:  886,  96  Pac.  563,  15  Idaho,  120. 

26.  In  determining  the  custody  of  a 
child,  his  welfare  is  the  paramount  consid- 
eration. Even  parental  love  must  yield  to 
the  claims  of  another,  if,  after  due  judicial 
investigation,  it  is  found  that  the  highest 
Digest  11-52  i:i.R.A.(N.S.) 


good  of  the  child  requires  it.     Re  Pryse,  41: 
564,   118  Pac,  56,  85  Kan.   556. 

(Annotated) 

27.  While,  in  awarding  the  custody  of 
children,  the  paramount  consideration  ia 
the  welfare  of  the  child,  rather  than  the 
technical  legal  righ;  oi  the  parent,  yet  the 
courts  should  not  lightly  and  without  good 
cause  invade  the  natural  right  of  the  parent 
to  the  custody,  care,  and  control  of  his  in- 
fant child.  Hernandez  v.  Thomas,  2:  203, 
39  So.  641,  50  Fla.  522. 

28.  It  is  not  enough  to  consider  the  in- 
terest of  the  child  alone  in  awarding  i.s 
custody,  and,  as  between  father  and  mother 
or  other  near  relative,  the  father  is  to  be 
preferred.  Hernandez  v.  Thomas,  2:  203,  39 
So.  641,  50  Fla.  522. 

29.  The  appointment  of  a  guardian  by  a 
county  court  is  not  conclusive  as  against  a 
parent's  right  to  the  custody  of  kis  chil- 
dren, unless  it  appears  tJiat  he  had  notice 
of  the  proceeding,  and  that  the  question  of 
his  competency  and  suitability  was  adju- 
dicated. Ex  parte  Clarke,  20:  171,  118  N. 
W.  472,  82  Neb.  625. 

30.  The  father  of  infant  children,  where 
there  is  no  sufficient  cause  for  depriving  him 
of  the  right,  has  the  legal  right  to  the  cus- 
tody and  control  of  such  children,  and  has 
the  right  to  iiave  them  educated  in  any  re- 
ligious faith  that  he  sees  proper,  whose 
tenets  do  not  inculcate  violation  of  the  laws 
of  the  land.  Hernandez  v.  Thomas,  2:  203, 
39  So.  641,  50  ila.  522. 

31.  As  against  strangers  the  father,  how- 
ever poor  and  humble,  if  of  good  moral  char- 
acter and  able  to  suppct  the  child  in  hia 
own  style  of  life,  cannot  be  deprived  of  the 
privilege  by  anyone,  however  brilliant  the 
advantages  he  may  ofier.  Hernandez  v. 
Thomas,  2:  203,  39  So.  641,  50  Fla.  522. 

32.  A  surviving  father  cannot  be  de- 
prived of  the  custody  of  a  minor  child  by 
the  mere  fact  that  in  giving  the  child  to 
another  it  would  be  surrounded  by  greater 
material  comforts  than  if  given  to  the  par- 
ent, where  a  statute  provides  that  the  sur- 
viving parent  who  is  competent  to  transact 
his  own  business,  and  not  otherwise  un- 
suitable, is  entitled  to  the  guardianship  of 
his  minor  children,  and  it  affirmatively  ap- 
pears that  the  father  is  competent  to  trans- 
act his  own  business  and  that  he  is  not 
otherwise  unsuitable.  Re  Crocheron,  33 
868,  101  Pac.  741,  16  Idaho,  441. 

(Annotated) 

33.  The  state,  as  parens  patrice,  has  the 
power  to  assume  or  provide  for  the  custody 
and  control  of  a  child  upon  the  sole  ground 
of  the  financial  inability  of  the  parent  to 
support  it,  whenever  the  breach  of  the  pa- 
rental trust  thus  involved  constitutes  a 
menace  to  the  fundamental  welfare  of  the 
child.  State  ex  rel.  Stearns  County  v. 
Klasen,  49:  597,  143  N.  W.  984,  123  Minn. 
382. 

34.  Parents  of  the  mother  of  a  child, 
who  are  given  temporary  custody  of  it  as 
agents  of  the  court  upon  its  granting  her  a 
divorce  against  its  father,  have  no  right  to 


1484 


INFANTS,  I.  c. 


its  continued  custody  as  against  the  claims 
of  the  fatlier,  after  the  mother  becomes  in- 
sane. Morin  v.  Morin,  37:  585,  119  Pac. 
745,  66   Wash.   312. 

35.  A  widow  who,  by  reason  of  her  neces- 
sitous circumstances,  places  her  inlant  son 
in  the  care  and  custody  of  his  paternal 
grandmother,  and  leaves  him  with  her  for 
several  years,  does  not  thereby  forfeit  her 
right  to  reclaim  her  child  when  she  be- 
comes more  prosperous;  nor  does  her  act  in 
so  leaving  the  child  imply  a  promise  on  her 
part  never  to  retake  him.  State  ex  rel. 
Kearney  v.  Steele,  i6:  1004,  46  So.  215,  121 
La.  215.  (Annotated) 

36.  That  a  child  left  by  his  widowed 
mother,  by  reason  of  her  necessitous  circum- 
stances, with  his  paternal  grandmother  for 
several  years,  is  happy  and  contented,  and 
even  shows  a  greater  present  affection  for 
his  grandmother  than  for  his  mother,  does 
not  warrant  the  court  in  refusing  to  recog 
nize  the  rights  of  the  mother  to  his  care 
and  custody,  where  she  has  remarried  and  is 
able  to  provide  for  him  State  ex  rel.  Kear- 
ney V.  Steele,  16:  1004,  46  So.  215,  121  La. 
215. 

37.  A  statute  permitting  a  father  to  dis- 
pose by  deed  of  the  custody  of  his  children 
will  be  construed  to  make  the  deed  binding 
on  him  only,  and  not  to  affect  the  rights  of 
the  mother.  Tillman  v.  Tillman,  26:  781, 
66  S.  E.  1049,  84  S.  C.  552. 

38.  In  determining  the  right  to  the  cus- 
tody of  children  which  a  father  separated 
from  his  wife  has  deeded  to  his  parents,  to 
the  exclusion  of  their  mother,  his  act  will 
be  regarded  as  invalid  against  her,  if  the 
family  relation  was  broken  by  him  without 
just  reason,  and  they  will  be  restored  to 
her  custody  if  she  is  a  fit  person  to  be 
intrusted  with  them.  Tillman  v.  Tillman, 
26:  781,  66  S.  E.  1049,  84  S.  C.  552. 

39.  A  father  cannot  wrest  his  children 
from  their  mother  because  of  her  lack  of 
education  or  her  faults  of  disposition.  Till- 
man v.  Tillman,  26:  781,  66  S.  E.  1049,  84 
S.  C.  552. 

40.  Upon  the  death  of  the  parent  to 
which  a  child  was  awarded  by  a  decree  of 
divorce,  the  other  parent  becomes  entitled 
to  its  custody,  unless,  in  a  contest  therefor, 
it  is  shown  that  such  parent  is  disqualified, 
or  the  interests  of  the  child  require  some 
other  disposition  of  its  person.  Wilson  v. 
Mitchell,  30:  507,  111  Pac.  21,  48  Ck)lo.  454. 

41.  That  the  grandparents  of  a  child 
in  whose  custody  it  was  placed  have  ac- 
quired an  affection  for  it  and  it  for  them 
is  not  sufficient  reason  for  refusal  to  re- 
turn it  to  the  custody  of  its  mother,  who 
surrendered  possession  of  it  merely  for  the 
benefit  of  its  health,  and  always  manifested 
her  interest  in  and  love  for  it,  and  contrib- 
uted to  its  support.  Wilson  v.  Mitchell, 
30:  507,  111  Pac.  21,  48  Ck)lo.  454. 

42.  The  mere  fact  that  a  mother  in- 
tends, if  she  secures  possession  of  her  son, 
to  take  him  to  England  for  residence,  is  not 
sufficient  to  cause  tne  courts  to  deny  her 
the  right  to  such  possession  as  against  the 
claims  of  its  grandparents,  with  whom  it 
Dieest  1-52  Ii.R.A.(N.S.) 


had  been  placed  by  its  father,  who  has  since 
deceased.  Wilson  v.  Mitchell,  30:  507,  111 
Pac.  21,  48  Colo.  454. 

43.  The  preference  of  a  nine-year-old  boy 
to  remain  with  his  grandparents  rather 
than  return  to  his  mother  will  not  control 
the  decision  of  the  court,  where  he  had  al- 
ways manifested  affection  for  her  until  the 
institution  of  the  proceedings  for  his  cus- 
tody, when  he  manifested  an  une.vpiained 
aversion  to  her.  Wilson  v.  Mitchell,  30:  507, 
111  Pac.  21,  48  Colo.  454. 

—  eflPect   of   contract. 
Consideration  for  father's  transfer  of  right 

to  custody  of  child,  see  Contracts,  75. 

Validity  of  contract  by  parent  to  surrender 
custody  of  child,  see  Contracts,  486, 
488,  489. 

Sufficiency  of  evidence  of  surrender  of  cus- 
tody by  parent,  see  Evidence,  2278. 

Consent  of  parent  to  adoption  of  child,  see 
Parent  and  Child,  33-36. 

44.  A  father  is  prima  facie  entitled  to 
the  control  of  his  minor  child,  but  this  right 
may  be  lost  by  a  clear,  definite,  and  certain 
contract  releasing  the  right  to  a  third  per- 
son, or  by  a  failure  of  the  father  to  pro- 
vide necessaries  for  his  child.  Wilkinson 
V.  Lee,  42:  1013,  75  S.  E.  477,  138  Ga.  360. 

45.  Where  a  father,  a  few  days  after  the 
death  of  his  wife,  voluntarily  told  the  great- 
grandfather of  his  child,  three  days  old,  that 
he  might  take  and  keep  the  child  as  long  as 
he  and  his  wife  lived,  or  until  the  child  was 
twenty-one  years  of  age,  and  the  grand- 
parent did  take,  keep,  maintain,  and  pro- 
tect the  child  for  about  three  years,  a  valid 
contract  sufficiently  definite  and  certain  to 
be  enforced  was  created,  by  which  the 
father  released  his  right  to  the  child,  to 
the  grandparent.  Wilkinson  v.  Lee,  42: 
1013,  75  S.  E.  477,  138  Ga.  360. 

(Annotated) 

46.  Where  a  mother  dies  immediately 
after  the  birth  of  a  child,  and  the  father 
commits  it  to  the  custody  of  a  competent 
woman,  who  properly  cares  for  it  in  a  suit- 
able horne,  without  compensation,  and  the 
father  permits  a  mutual  attachment  to 
grow  up  between  them  for  a  number  of 
years  under  a  contract  with  him  awarding 
to  her  ite  permanent  custody,  in  a  proceed- 
ing by  the  father  to  regain  his  child,  the 
general  rule,  that  the  controlling  considera- 
tion is  the  child's  own  best  interests,  ap- 
plies. Burdick  v.  Kaelin,  40:  887,  136  N. 
W.  988,  91  Neb.  639. 

—  unfitness  of  parent. 
Presumption  of  father's  unfitness  for  cus- 
tody of  child,  see  Evidence,  123. 

47.  The  degree  of  unfitness  which  will 
deprive  a  parent  of  the  natural  right  to  the 
custody  of  his  children,  while  it  must  be 
positive,  and  not  comparative,  must  be  con- 
sidered in  relation  to  the  attending  circum- 
stances, such  as  the  concern  he  has  shown 
for  them  in  the  past,  the  suitability  of  his 
domestic  surroundings  to  receive  them, 
and  the  question  of  their  general  welfare. 
Ex.  parte  Clarke,  20:  171,  118  N.  W.  472, 
82  Neb.  625. 


INFANTS,  I.  d,  1. 


1485 


48.  The  unfitness  which  deprives  a  par- 
ent of  the  right  to  the  custody  of  his  chil- 
dren must  be  positive,  and  not  comparative; 
and  the  mere  fact  that  the  children  would 
be  better  nurtured  or  cared  for  by  a  stran- 
ger is  not  sufficient  to  deprive  the  parent  of 
his  right  to  their  custody.  Ex  parte  Clarke, 
2o:  171,  118  N.  W.  472,  82  Keb.  625. 

49.  The  unfitness  which  will  deprive  a 
parent  of  the  right  to  the  custody  of  his 
minor  child  must  be  positive,  and  not  com- 
parative; and  the  mere  fact  tliat  his  minor 
child  might  be  better  cared  for  by  a  third 
person  is  not  sufficient  to  deprive  the  par- 
ent of  his  right  to  its  custody.  Jamison 
V.  Gilbert,  47:  1133,  135  Pac.  342,  38  Okla. 
751. 

50.  It  is  not  sufficient,  to  establish  the 
unfitness  of  a  parent  for  the  custody  and 
control  of  his  minor  child,  to  show  that 
he  has  some  faults  of  character  or  bad 
habits:  it  must  be  shown  that  his  con- 
dition in  life  or  his  character  and  habits 
are  such  that  provision  for  the  child's 
ordinary  comfort  and  contentment,  or  for 
its  intellectual  and  moral  development,  can- 
not be  reasonably  expected  at  the  parent's 
hands.  Jamison  v.  Gilbert,  47:  1133,  135 
Pac.  342,  38  Okla.  751. 

51.  Proof  that  a  father  some  four  years 
previous  did  drink  some  and  at  times  be- 
come a  "little  hilarious,"  and  has  at  times 
failed  or  is  unable  to  pay  his  debts,  is  not 
sufficient  to  deprive  him  of  the  guardianship 
of  his  minor  children,  under  a  statute  pro- 
viding that  the  surviving  parent  who  is  com- 
petent to  transact  his  own  business  and  not 
otherwise  unsuitable  is  entitled  to  the  guar- 
dianship of  his  minor  children,  especially 
where  it  appears  that  the  father  is  neither 
indigent  nor  immoral  and  is  capable  of  prop- 
erly providing  for  and  educating  his  chil- 
dren. Re  Crocheron,  33:  868,  101  Pac.  741, 
16  Idaho,  441. 

52.  That  a  divorce  was  granted  against 
the  mother  of  a  child  for  wrongdoing  is  not 
conclusive  against  her  right  to  tiie  custody 
of  the  child  many  years  afterwards,  where 
the  father  is  dead,  and  she  has  remarried, 
has  a  good  home  and  social  standing,  and 
there  is  not  the  slightest  intimation  or  sus- 
picion of  wrongdoing  subsequent  to  the  di- 
vorce. Wilson  V.  Mitchell,  30:  507,  111 
Pac.  21,  48  Colo.  454. 

53.  The  court  cannot,  under  a  statute  de- 
claring that  discretion  of  the  court  in  re- 
spect to  the  custody  of  a  minor  child  shall 
be  exercised  in  favor  of  what  appears  to  be 
for-  the  best  interest  of  the  child  in  respect 
to  its  temporal  and  mental  and  moral  wel- 
fare, transfer  the  custody  of  an  infant  from 
the  competent  care  of  an  aunt,  to  that  of  its 
dissipated  and  immoral  mother,  with  the  in- 
tent of  reforming  the  mother.  Re  Lee,  45:  i 
91,  131  Pac.  749,  165  Cal.  279. 

54.  That  the  mother  of  gently  nurtured  I 
white  girls  marries  a  man  with  negro  blood  | 
in  his  veins  insufficient  in  amount  to  make  | 
the  marriage  invalid  under  the  laws  of  the  I 
state,  and  that  because  thereof  they  will 
be  deprived  of  white  society  and  compelled 
Digest  1-52  11R.A.(N.S.) 


to  associate  with  persons  of  mixed  blood, 
does  not  justify  the  authorities  in  commit- 
ting them  to  custody  of  an  institution,  un- 
der a  statute  permitting  such  commitment 
of  children  when,  by  reason  of  neglect  or 
vice  of  the  parents,  they  are  growing  up 
without  education  or  salutary  control,  and 
in  circumstances  exposing  them  to  a  disso- 
lute or  vicious  life.  Moon  v.  Children's 
Home  Soc.  38:  418,  72  S.  E.  707,  112  Va.  737. 

d.  Disahilities  and  liabilities. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A, 
1-10.) 

Forbidding  children  to  operate  automobiles, 
see  Automobiles,  5. 

EfiFect  of  minority  oif  children  of  trustee, 
on  descent  at  his  death,  of  trust  estate, 
see   Descent  and   Distribution,   30, 

Presumption  and  burden  of  proof  as  to 
mental  capacity,  see  Evidence,  211-217. 

Evidence  as  to  capacity  of,  see  Evidence, 
1103,  1781, 

Evidence  as  to  master's  knowledge  of  ca- 
pacity of  infant  employee,  see  Evi- 
dence,  1588. 

Mental  capacity  of,  as  question  for  jury, 
see  Trial,  242,  243. 

Competency  as  witnesses,  see  Witnesses, 
15-17. 

Review  of  discretion  as  to  competency  of, 
as  witnesses,  see  Appeial  and  Error, 
612. 

Effect  of  foreign  judgment  removing  in- 
fant's disability  to  convey  land,  see 
Judgment,  290. 

Capacity  to  marry,  see  Marriage,  14-16. 

Annulment  of  marriage  because  of  infancy, 
see  Marriage,  29,  43-45. 

55.  An  infant  cannot  recover  damages 
for  loss  of  service  during  minority,  arising 
from  personnl  injur}\  Comer  v.  W.  M.  Rit- 
ter  Lumber  Co.  (5:  552,  53  S.  E.  906,  59  W. 
Va.  688.  (Annotated) 

56.  Where  suit  is  brought  in  the  name 
of  a  minor  under  the  age  of  eighteen  years, 
by  direction  of  her  next  friend,  to  protect 
the  infant's  title  to  certain  real  estate, 
the  counsel  cannot  recover  in  an  action  at 
law  against  the  minor  for  services  in  such 
suit,  firissom  v.  Beidleman,  44:  411,  129 
Pac.  853,  35  Okla.  343.  (Annotated) 

57.  An  infant  cannot  be  held  liable  in 
tort  for  breach  of  warranty  in  the  sale  of  a 
horse.  Collins  v.  Gifford,  38:  202,  96  N.  E. 
721,  203  N.  Y.  465. 

Negligence. 

58._  A  nine-year-old  boy  is  not  liable 
for  injury  to  another  boy  with  wliom  lie  col- 
lides in  rounding  the  corner  of  a  building 
while  at  play,  where  the  collision  is  the 
result  of  accident,  and  not  of  malice  or 
intentional  wrong.  Briese  v.  Maeclitle,  35: 
574,   130  N.   W.   893,  146  Wis    89. 

(Annotated) 
Potsrer  to   change   domicil. 

59.  A  minor  cannot  change  his  own  dom- 


1486 


INFANTS,  I.  d,  2. 


icil.     Sudler    v,    Sudler,    49:  860,    88    Atl. 
26,   121   Md.   46.  (Annotated) 

2.  Contracts. 

a.  In  general. 

(Bee  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  I.  b,  7. 

Estoppel  by  misrepresentations  as  to  age, 
see  Estoppel,  173-178. 

Presumption  as  to  law  of  other  state  in 
regard  to  infants'  contracts,  see  Evi- 
dence,  76. 

See  also  supra,   1,  57. 

60.  The  mere  fact  that  a  minor  has  nei- 
ther parent  nor  guardian  does  not  remove 
his  disability  and  clothe  him  with  the  pow- 
er to  contract  generally.  Wickham  v.  Tor- 
ley,  36:  57,  71  S.  E.  881,  136  Ga.  594. 

( Annotated ) 

61.  The  fact  that  a  minor  orphan  has 
been  engaged  as  a  workman  in  a  shop  and 
received  his  wages  in  such  employment  does 
not  empower  him  to  contract  generally. 
Wickham  v.  Torley,  36:  57,  71  S.  E.  881,  136 
Ga.  594. 

62.  A  minor  is  bound  by  a  provision  in  a 
contract  for  the  transmission  of  a  telegram, 
that  suit  must  be  brought  for  its  breach 
within  sixty  days.  Western  U.  Teleg.  Co. 
V.  Greer,  i:  525,  89  S.  W.  327,  115  Tenn.  368. 

( Annotated ) 

63.  An  infant  is  not  liable  for  injury  to 
a  pedestrian  by  the  negligence  of  a  janitor 
in  charge  of  his  building  in  opening  doors 
in  the  adjoining  sidewalk,  the  infant  being 
absent,  and  not  directing  or  consenting  to 
the  act,  since  the  infant  has  no  power  to 
form  a  contract  relation  with  a  servant 
which  will  render  him  liable  under  doctrine 
of  respondeat  superior.  Covault  v.  Nevitt, 
51:  1092,   146    N.    W.    1115,    157    Wis.    113. 

(Annotated) 

64.  An  infant's  sale  of  his  property, 
whether  it  is  real  estate  or  personalty, 
transmits  the  title  and  ic  voidable  only, 
and  will  stand  unless  disaffirmed  by  some 
act  clear  and  unmistakable  in  character. 
Putnal  V.  Walker,  36:  33,  55  So.  844,  61  Fla. 
720. 

Insurance. 

Disaffirming  warranty  in  application  for 
insurance  on  ground  that  applicant  is 
a  minor,  see  Insurance,  312. 

Necessaries. 

Burden  of  showing  articles  furnished  to  be 
necessary,  in  action  against,  see  Evi- 
dence,  645. 

Question  for  jury  as  to,  see  Trial,  685. 

65.  Beneficial  services  rendered  to  a 
minor  by  an  attorney  under  an  express  or 
implied  contract  are  classed  as  "neces- 
saries," and  payment  therefor  cannot  be 
avoided  on  the  grormd  of  the  client's  minor- 
ity. Sutton  v.  Heinzle,  34:  238,  115  Pac. 
560,  116  Pac.  614,  84  Kan.  756. 

66.  The  services  of  an  attorney  in  a 
Digest  1-52  KR.A.(N.S.) 


suit  by  an  infant  by  direction  of  her  next 
friend,  to  protect  title  to  certain  real  estate, 
are  not  necessaries,  and  the  infant's  lia- 
bility to  pay  for  them  may  be  avoided  by 
such  infant,  even  under  an  express  promise. 
Grissom  v.  Beidleman,  44:  411,  129  Pac. 
853,  35  Okla.  343. 

67.  The  services  of  a  janitor  for  a  build- 
ing belonging  to  an  infant  are  not  neces- 
saries, a  contract  for  which  will  bind  the 
infant.  Covault  v.  Nevitt,  51:  1092,  146  N. 
W.   1115,   157   Wis.    113. 

68.  A  five-year  course  of  instruction  in 
"complete  steam  engineering"  is  not  a  neces- 
sary for  which  an  infant  can  contract,  in 
the  absence  of  anything  to  show  his  cir- 
cumstances in  life  or  his  resources  for  se- 
curing such  instruction.  International 
Text-Book  Co.  v.  Connelly,  42:  11 15,  94)  N. 
E.  722,  206  N.  Y.  188.  (Annotated) 

b.   Ratification  or  disafflnnance. 

(See  also  same  heading  in  Digest  LJt.A. 
1-70.) 

Right  of  heirs  to  disaffirm  infant's  deed, 
see  Abatement  and  Revival,  6. 

Estoppel  to  disaffirm  contract,  see  Estop- 
pel, 173-178. 

Laches  in  disaffirming  contract,  see  Limi- 
tation OF  Actions,  35. 

Bar  of  right  to  disaffirm  by  lapse  of  time, 
see  Limitation  of  Actions,  235,  236. 

Set-off  in  action  for  rescission  of  infant's 
contract  of  sale,  see  Set-Off  and 
Counterclaim,  27. 

See  also  supra,  64;  infra,  109. 

69.  Purchasers  of  land  from  an  infant 
cannot  defeat  a  recovery  of  the  property  by 
one  to  whom  the  infant  deeded  it  on  reach- 
ing his  majority,  on  the  ground  that  the 
later  deed  was  obtained  by  fraud.  Beau- 
champ  V.  Bertig,  23  :  659,  119  S.  W.  75,  90 
Ark.  351. 

70.  An  infant  may  avoid  his  contracts 
either  before  or  after  he  arrives  at  lawful 
aee.  Ex  parte  McFerren,  47:  543,  63  So. 
159,  184  Ala.  223. 

71.  An  infant  need  not  wait  until  arriv- 
ing at  majority  before  rescinding  a  pur- 
chase of  personal  property  for  fraud  of  the 
seller.  Stoll  v.  Hawks,  51:28,  146  N.  W. 
229,  179  Mich.  571.  (Annotated) 

72.  An  infant  who  has  paid  for  and  re- 
ceived stock  for  which  he  subscribed  in  a 
corporation  may,  during  minority,  rescind 
the  contract  and  recover  the  money  paid, 
upon  tendering  back  the  stock  which  still 
remains  in  his  possession.  Wuller  v.  Chuse 
Grocerv  Co.  28:  128,  89  N.  E.  796,  241  111. 
398.      '  (Annotated) 

73.  The  appointment  by  an  infant  of  a 
broker  to  buy  and  sell  stocks  for  hira  may 
be  disaffirmed  by  notice  from  his  guardian 
to  that  effect,  although  all  transactions  be- 
tween the  infant  and  the  broker  have  been 
adjusted.  Benson  v.  Tucker,  41:  1219,  98 
N.  E.  589,  212  Mass.  60.  (Annotated) 

74.  That  the  money  advanced  by  an  in- 
fant to  a  broker  for  a  transaction  in  stocks 


INFANTS,  I.  d,  2. 


1487 


has  been  invested  as  directed,  and  all  or- 
ders given  duly  executed,  does  not  prevent 
4  rescission  if  no  stoclc  was  ever  delivered 
to  the  minor,  and  the  sums  received  by  him 
from  the  transaction  did  not  equal  the 
amount  advanced,  so  that  he  received  no 
benefit  therefrom.  Benson  v.  Tucker,  41 : 
1219,  98  N.  E.  589,  212  Mass.  60. 
Ratification. 
Estoppel  to  set  up  infancy,  see  Estoppel, 

173-178. 
Presumption  and  burden  of  proof  as  to  rati- 
fication,  see   Evidence,    187. 

75.  Retention,  after  becoming  of  age,  of 
<!hattels  not  necessaries,  purchased  by  a  mi- 
nor, does  not,  under  a  statute  providing 
that  no  action  shall  be  maintained  on  the 
contract  unless  ratified  in  writing,  except 
it  be  for  necessaries  or  real  estate,  consti- 
tute an  implied  promise  to  pay  for  them. 
Xamkin  v.  Ledoux,  8:  104,  64  Atl.  1048,  101 
Me.  581. 

76.  A  bond  in  usual  form,  for  release  of 
•attached  property,  is  not  a  ratification  by 
the  pledgeor  of  his  promise  to  pay  for  the 
property,  when  sold  to  him  during  minority. 
Lamkin  v.  Ledoux,  8:  104,  64  Atl.  1048,  101 
Me.  581. 

77.  The  mere  payment  by  an  infant, 
after  attaining  majority,  of  an  instalment 
of  the  contract  price  for  a  course  of  instruc- 
tion, is  not  sufficient  as  matter  of  law 
to  ratify  the  contract,  if  he  receives  no 
benefit  after  attaining  majority  and  as 
soon  as  possible  returns  all  he  has  received 
under  the  contract.  International  Text- 
Book  Co.  V.  Connelly,  42:  11 15,  99  N.  E. 
722,  206  N.  Y.  188. 

'What  constitutes  a  disaffirmance. 

78.  Any  act  showing  unequivocally  a  re- 
nunciation of,  or  a  disposition  not  to  abide 
by,  a  contract  made  during  minority,  is 
sufficient  to  avoid  it.  Grissom  v.  Beidle- 
man,  44:  411,  129  Pac.  853,  35  Okla.  343. 

79.  A  deed  by  which  persons,  on  reaching 
their  majority,  "grant,  bargain,  sell,  and 
convey"  to  a  stranger  property  which  they 
had  during  infancy  deeded  to  another,  for 
the  purpose  of  disaffirming  their  former 
deed,  and  with  knowledge  that  the  later 
grantee  is  to  institute  suit  for  possession 
of  the  property,  is  a  sufficient  disaffirmance 
of  the  former  deed,  where  the  statute  per- 
mits a  conveyance  of  land  held  adversely. 
Beauchamp  v.  Bertig,  23  :  659,  119  S.  W. 
75,  90  Ark.  351. 

Rights  on  disaffirmance. 

80.  When  an  infant  disaffirms  a  con- 
ditional-sale contract,  the  title  to  the  prop- 
erty bought  by  the  infant  remains  in  the 
vendor,  and  ordinarily  the  right  to  recover 
partial  payments  made  rests  with  the  in- 
fant. Ross  P.  Curtice  Co.  v.  Kent,  52:  723, 
131  N.  W.  944,  89  Neb.  496.       (Annotated) 

81.  An  infant  who  leases  real  estate 
under  a  contract  by  which  he  is  to  pay 
rent  for  a  certain  number  of  months,  after 
which  he  is  to  receive  a  deed  for  the 
premises,  and  under  which  failure  to  make 
payments  will  create  a  forfeiture  of  his 
rights,  may,  in  case  he  never  takes  posses- 
sion of  the  property,  and  his  contract  is 
Digest   1-52  L.R.A.(N.S.) 


forfeited  during  his  minority,  recover  the 
payments  which  he  has  made  under  the 
contract.  Ex  parte  McFerren,  47:  543,  63 
So.  159,  184  Ala.  223.  (Annotated) 

82.  Where  one  who  has  purchased  the 
real  estate  of  a  minor  is,  under  the  better- 
ment act,  entitled,  upon  the  latter's  disaf- 
firmance of  his  contract,  to  the  value  of 
taxes,  repairs,  and  improvements  which  he 
has  expended  upon  the  property,  the  minor 
may  offset  against  such  claim  the  rents  ac- 
cruing within  the  statutory  period  limited 
for  their  recovery,  although  the  contract  is 
hot  disaffirmed  until  the  commencement  of 
the  action.  Tobin  v.  Spann,  16:  672,  109  S. 
W.  534,  85  Ark.  556. 

83.  A  minor  is  entitled  to  recover  the 
rents  of  the  real  estate  from  one  to  whom 
he  sold  it,  only  from  the  time  of  disaf- 
firmance of  the  contract.  Tobin  v.  Spann, 
16:  672,  109  S.  W.  534,  85  Ark.  556. 

84.  One  who,  after  the  majority  of  in- 
fants who  during  minority  joined  with  their 
mother  in  a  deed  of  real  estate  belonging 
to  their  father's  estate,  to  one  having  a 
lease  of  the  property  which  has  not  expired, 
purchased  the  property  from  them  during 
the  mother's  lifetime,  is  entitled  to  rents 
from  the  date  of  his  deed  upon  the  prop- 
erty, less  those  represented  by  the  widow's 
dower  interest.  Beauchamp  v.  Bertig,  23: 
659,  119  S.  W.  75,  90  Ark.  351. 

85.  Where  an  infant  purchases  real  es- 
tate, and  upon  coming  of  age  disaffirms  the 
sale,  he  must,  in  order  to  make  the  dis- 
affirmance effectual,  restore  the  property 
if  he  has  title  to  it,  to  his  vendor;  and  in 
such  case  the  duty  to  restore  becomes 
a  right  to  restore,  which  the  vendor  may 
not  defeat  by  refusing  to  take  back  the 
property.  Evants  v.  Taylor,  50:  1113,  137 
Pac.  583,  18  N.  M.  371. 

Effect  of  disaffirmance. 

Release  of  surety  on  note  of  minor  by  in- 
fant's disaffirmance,  see  Pbincipal  and 
Surety,  33. 

See  also  supra,  80. 

86.  The  disaffirmance  of  a  contract  made 
by  an  infant  nullifies  it,  and  renders  it 
void  ab  initio;  and  the  parties  are  returned 
to  the  same  condition  as  if  the  contract 
had  never  been  made.  Grissom  v.  Beidle- 
man,  44:  411,  129  Pac.  853,  35  Okla.  343. 

87.  After  an  infant  has  disaffirmed  a 
contract,  anyone  may  take  advantage  of 
such  disaffirmance.  Grissom  v.  Beidletnan, 
44:  411,  129  Pac.  853,  35  Okla.  343. 

88.  Repudiation,  after  coming  of  age,  of 
a  contract  to  pay  for  merchandise  which 
had  been  furnished  the  promisor  during  mi- 
nority, does  not  revest  title  in  the  vendor. 
Lamkin  v.  Ledoux,  8:  104,  64  Atl.  1048,  101 
Me.  581.  (Annotated) 

89.  The  disaffirmance  by  infants,  upon 
reaching  their  majority,  of  a  deed  which 
they  executed  jointly  with  their  mother,  of 
property  in  which  she  had  a  dower  interest, 
destroys  the  merger  of  such  interest,  and 
leaves  in  the  grantee  the  equitable  title  to 
her  dower  right.  Beauchamp  v.  Bertig,  23: 
659,  119  S.  W.  75,  90  Ark.  351. 


1488 


INFANTS,  n. 


90.  A  tenant  having  the  right  to  remove 
buildii:2:s  at  the  end  of  his  lease,  who  pur- 
chases the  realty  from  the  infant  owners 
during  their  minority,  is  restored  to  his 
rights  under  the  lease  upon  their  disaffirm- 
ance of  their  sale  by  conveying  the  prop- 
erty to  another  after  reaching  majority. 
Beauchamp  v.  Bertig,  23:  659,  119  S.  W.  75, 
90  Ark.  351. 

91.  The  return  to  a  corporation  of  stock 
which  has  been  purchased  by  an  infant  is 
effected  upon  his  rescission  of  his  contract, 
by  the  cancelation  of  the  certificate  which, 
was  issued  to  him.  Wuller  v.  Chuse  Grocery 
Co.  28:  128,  89  N.  E.  796,  241  111.  398. 
Repayment  or  restoration  by  infant. 
Rights  and  liabilities  of  one  purchasing  from 

infant    after    majority    land    conveyed 
to  another  during  minority,  see  Con- 
tracts, 621. 
See  also  supra,  85. 

92.  An  infant  who,  in  conveying  prop- 
erty, fraudulently  represents  that  he  is  over 
twenty-one  years  of  age,  cannot  invoke  the 
aid  of  equity  to  cancel  the  deed,  though  it 
may  be  absolutely  void,  unless  he  offers  to 
refund  the  consideration  given  in  reliance 
upon  the  truth  of  such  representations,  al- 
though the  grantee  may  have  had  prior  no- 
tice that  the  grantor  was  under  age,  and 
may  not  have  exercised  reasonable  care.  In- 
ternational Land  Co.  v.  Marshall,  19:  1056, 
98  Pac.  951,  22  Okla.  693. 

93.  An  infant  who,  in  conveying  prop- 
erty, fraudulently  represents  that  he  is  over 
twenty-one  years  of  age,  cannot,  while  in 
possession  of  the  property,  have  the  deed 
canceled  in  equity  as  a  cloud  on  title,  al- 
though it  may  be  absolutely  void,  without 
offering  to  refund  the  consideration  ob- 
tained by  such  fraudulent  representations, 
which,  in  view  of  his  appearance  and  size, 
were  believed  by  the  grantee.  International 
Land  Co.  v.  Marshall,  19:  1056,  98  Pac.  951, 
22  Okla.  693. 

94.  Where  the  infant,  upon  his  arrival 
at  majority,  or  at  the  time  he  seeks  dis- 
aflSrmance,  still  has  the  consideration  re- 
ceived, or  any  part  thereof,  he  must,  upon 
his  disaffirmance,  return  it;  but,  where  he 
has  disposed  of,  lost,  or  wasted  the  same 
during  his  infancy,  his  right  to  disaffirm 
is  in  no  way  dependent  upon  his  making 
good  to  the  other  party  what  he  received. 
Putnp,l  v.  Walker,  36:  33,  55  So.  844,  61  Fla. 
720. 

95.  An  infant  who  brings  suit  before 
reaching  majority  to  recover  for  injuries 
negligently  inflicted  upon  him  by  another 
need  not  return  the  consideration  for  a 
release  which  he  executed  on  account  of  the 
injuries.  Worthy  v.  Jonesville  Oil  Mill, 
11:  690,  57  S.  E.  634,  77  S.  C.  69. 

96.  The  amount  received  by  an  infant 
in  consideration  of  a  release  of  a  claim  for 
personal  injuries  may  be  credited  upon  a 
recovery  in  an  action  for  such  injuries  to 
the  extent  to  which  he  has  been  really  bene- 
fited by  it.  Worthy  v.  Jonesville  Oil  Mill, 
11:  690,  57  S.  E.  634,  77  S.  C.  69. 
Digest  1-52  Ii.R.A.(N.S.) 


97.  One  who  purchases  from  infants,  up- 
on their  reaching  their  majority,  land  which 
another  had  purchased  from  them  during 
their  minority,  must  restore  to  the  former 
purchaser  the  consideration  paid  by  him, 
including  claims  against  the  property  which 
had  been  satisfied  by  him  as  part  of  the  con- 
sideration for  the  conveyance.  Beauchamp 
v.  Bertig,  23:  659,  119  S.  W.  75,  90  Ark.  351. 

98.  One  who  purchases  from  infants,  up- 
on their  reaching  majority,  land  which  they 
had  deeded  to  another  during  infancy,  is 
not  bound  to  reimburse  to  the  latter  money 
he  had  paid  his  own  agent  for  conducting 
the  negotiations  leading  to  his  purchase^ 
Beauchamp  v.  Bertig,  23:  659,  119  S.  W.  75, 
90  Ark.  351. 

Disaffirmance  of  marriage  settlement. 

99.  An  infant  feme,  who,  upon  the  eve  of 
her  marriage,  unites  with  her  husband  in 
settling  real  estate  upon  herself  and  the  con- 
templated issue  of  the  marriage,  may  dis- 
affirm the  settlement  when  the  disability  of 
infancy  and  coverture  have  been  removed,  if,, 
in  the  meantime,  she  has  done  no  act  to  rati- 
fy or  affirm  the  settlement.  Smith  v.  Smith, 
12:  1 184,  57  S.  E.  577,  107  Va.  112. 

(Annotated)- 

II.    Sale,    mortgage,    or    lease,    of    real 
estate. 

(See  also  same  heading  in  Digest  L.R.A, 
1-10.) 

Power  of  guardian  as  to,  see  Guardian  ani> 
Ward,  12-15. 

Lien  for  money  advanced  to,  to  pay  off 
mortgage,  see  Lien,  2. 

Collateral  attack  on  order  for  mortgage  or 
sale  of  property,  see  Judgment,  129,^ 
130. 

Jurisdiction  to  order  sale  of  land,  see  Judg- 
ment, 15. 

Certainty  of  decree  for  sale  of  infant's  land, 
see  Judgment,  36, 

Validity;  practice. 

Bar  of  right  to  recover  from  guardian  prof- 
its that  went  into  his  hands  by  sale  of 
infant's  realty,  see  Limitation  of  Ac- 
tions, 106. 

100.  The  interest  of  a  guardian  ad  litem 
in  the  purchase  of  coal  underlying  the  in- 
fant's land  sold  in  the  suit  in  which  the  in- 
fant was  represented  by  that  guardian  ad  li- 
tem renders  the  sale  voidable  at  suit  of  the 
infant  upon  discovery  of  fraud,  provided 
laches  are  not  imputable  to  him.  Plant  v. 
Humphries,  26:  558,  66  S.  E.  94,  66  W.  Va. 
88.  (Annotated) 

101.  The  interest  of  minors  in  land  con- 
veyed by  deed  of  trust  does  not  pass  there- 
under, where  they  are  not  parties  to  the 
deed  or  to  the  proceedings  in  court  upon 
which  it  is  based.  Tallev  v.  Ferguson,  17: 
1215,  62  S.  E.  456,  64  W.  Va.  328. 

102.  Publication  of  a  notice  in  three  suc- 
cessive issues  of  a  weekly  newspaper  is  suf- 
ficient to  satisfy  the  requirements  of  a  stat- 
ute that  notice  of  an  application  to  sell  an 
infant's   estate  shall   first  be  published  for 


INFANTS,  III. 


1489 


three  successive  weeks  before  the  petition  is 
presented,  although  three  weeks  do  not 
elapse  between  the  first  publication  and  the 
date  fixed  for  the  presentation  of  the  peti- 
tion. Mortgage  Trust  Co.  v.  Redd,  8:  1215, 
88  Pac.  473,  38  Colo.  458. 

103.  Whether  or  not  executors  exceeded 
their  power  with  reference  to  the  income  of 
a  trust  estate  placed  in  their  hands  is  im- 
material in  a  proceeding  to  mortgage  the  in- 
terests of  infant  remainder-men  to  take  \ip 
a  valid  mortgage  placed  by  them  on  the  es- 
tate and  to  pay  overdue  taxes.  Re  Lueft, 
7:  263,  109  N.  W.  652,  129  Wis.  534. 

104.  The  interests  of  an  infant  remainder- 
man will  be  promoted  by  the  execution  of  a 
mortgage  to  take  up  a  valid  prior  one  and 
pay  overdue  taxes,  within  the  meaning  of 
a  statute  permitting  the  mortgaging  of  es- 
tates in  which  infants  are  interested  to  pro- 
mote their  interests  in  the  property.  Re 
Lueft,  7:  263,  109  N.  W.  652,  129  Wis.  534. 

105.  The  duty  of  the  life  tenant  to  pay 
taxes  on  the  estate  does  not  prevent  the 
court  from  authorizing  the  mortgage  of  the 
estate  to  pay  overdue  taxes,  and  thereby 
preserve  it  for  infant  remainder-men.  Re 
Lueft,  7:  263,  109  N.  W.  652,  129  Wis.  534. 

106.  A  lease,  under  authority  of  court,  of 
minor's  property,  which  is  to  extend  beyond 
their  minority,  is  valid,  where  the  state  has 
given  the  court  plenary  power  over  such  es- 
tates. Beauchamp  v.  Bertig,  23  :  659,  119 
S.  W.  75,  90  Ark.  351. 

Setting  aside. 

Time  for  attacking  fraudulent  sale  of  coal 
underlying  infant's  land,  see  Judgment, 
395. 

Laches  in  bringing  suit  to  avoid  sale  of  coal 
underlying  land,  see  Limitation  of  Ac- 
tions, 34. 

Laches  in  asserting  right  to  reformation  of 
deed,  see  Limitation  of  Actions,  26. 

Retrospective  effect  of  statute  as  to,  see 
Statutes,  319. 

III.  Actions. 

(See  also  same  heading  in  Digest  LJt.A. 
1-10.) 

Right  of  attorney  as  amicus  curice  to  sug- 
gest facts  for  protection  of,  see  Aiiicus 

CURI^. 

Right  of  guardian  ad  litem  to  appeal  case  to 
court  of  last  resort,  see  Appeal  and 
Error,  87. 

Action  by  infant  against  next  friend  for 
money  turned  over  to  him  by  attorney 
as  bar  to  action  against  attorney,  see 
Election  of  Remedies,  21. 

Evidence  of  admissions  by  next  friend,  see 
Evidence,  1260;  Witnesses,  166. 

Limitation  of,  see  Limitation  of  Actions, 
II.  m. 

Bringing  of  action  by  father  as  next  friend 
for  infant  child  on  contract  made  for 
child's  benefit  as  waiver  of  father's 
rights  under  contract,  see  Parent  and 
Child,  5. 

Order  of  proof  in  action  against  minor  to 
recover  money  lent,  see  Trial,  36. 

Digest   1-52  L.R.A.(N.S.) 


107.  A  court  of  equity,  if  cognizant  of 
the  necessary  facts,  should,  on  its  own  mo- 
tion, protect  the  rights  of  minors,  when 
involved  in  litigation  to  which  they  arc 
not  parties.  Jones  v.  Hudson,  44:  1182, 
141  N.  W.  141,  93  Neb.  561. 

108.  A  minor  may  maintain  a  suit  in  his 
own  name  to  recover  the  society  and  serv- 
ices of  his  wife  of  which  he  is  deprived  by 
her  parents.  Ex  parte  HoUopeter,  21:  847, 
100  Pac.  159,  52  Wash.  41. 

109.  An  infant  who  has  signed  a  release 
of  damages  for  an  injury  need  not,  in  or- 
der to  maintain  an  action  for  the  injuries, 
show  that  the  release  was  obtained  from 
him  by  fraud  or  misrepresentation.  Worthy 
v.  Jonesville  Oil  Mill,  11:  690,  57  S.  E.  634, 
77  S.  C.  69.  (Annotated) 
How  represented;  guardian  ad  litem. 
As  to  incompetent  persons,  see  Incompetent 

Persons,  V. 

110.  It  is  reversible  error  to  permit  a 
bastardy  proceeding  to  be  prosecuted  against 
a  minor  without  the  appointment  of  a  guard- 
ian ad  litem,  where  such  proceeding-  is  a 
civil  suit.  Easton  v.  Eaton,  52:  799,  90  Atl. 
977,  112  Me.  106. 
Judgment. 
Estoppel  of  infant  by  judgment  in  suit  by 

his  next  friend,  see  Estoppel,  46. 

Fraud  of  insurer  of  employer  in  inducing 
guardian  of  minor  employee  to  bring  ac- 
tion for  nominal  sum  only,  see  Fraud 
AND  Deceit,  14. 

Conclusiveness  of  decree  afifecting,  see  Judg- 
ment, 218-222. 

Payment  of  judgment  to  next  friend  of,  see 
Judgment,  313. 

Right  to  review  of  decree  against,  after  ma- 
jority, see  Judgment,  405. 

Compromise  or  settlement  of. 

Satisfaction  by  attorney  of  judgment  in 
favor  of,  see  Judgment,  314. 

Setting  aside  judgment  taken  by  consent  of 
next  friend  of  infant,  see  Judgment, 
343. 

111.  A  parent  has  no  Implied  authority 
to  compromise  or  settle  a  claim  or  cause  of 
action  of  his  infant  child,  or  to  consent 
that  a  judgment  may  be  rendered  against 
him.  Missouri  P.  R.  Co.  v.  Lasca,  21:  338, 
99  Pac.  616,  79  Kan.  311. 

112.  A  parent,  when  acting  as  next  friend 
for  his  infant  child,  who  has  regularly  been 
made  a  party  to  an  action,  while  he  may  ne- 
gotiate for  an  adjustment  of  the  c<Mitro- 
versy,  cannot  bind  the  infant  by  any  settle 
ment,  since  an  attempted  compromise  be- 
comes effective  only  upon  an  actual  judicial 
finding,  from  evidence,  that  the  amount  Is 
just  and  fair,  and  that  a  judgment  tlierefor 
will  be  conservative  of  thu  minor's  interests. 
Missouri  P.  R.  Co.  v.  Lasca,  21:  338,  99  Pac. 
616,  79  Kan.  311.  (Annotated) 
Paying  over  recovery  to   next  friend. 

113.  Attorneys  employed  by  the  next 
friend  of  an  infant  to  bring  an  action  on  his 
behalf  are  not  justified  in  paying  the 
amount  recovered  over  to  the  next  friend,, 
where,  under  the  statute,  anyone  may  bring 
suit   as    next    friend   without   giving    bond. 

94 


1490 


INFECTION— INITIATIVE,  REFERENDUM,  AND  RECALL. 

INGRESS. 


Wood  V.  Claiborne,  ii:  913,  102  S.  W.  219^, 
82  Ark.  514.  (Annotated) 


INFECTION. 


Of  eye  as  accident,  see  Insueiawce,  716. 
From    animals    slaughtered    for    meat,    see 

Masteb  and  Servant,  446. 
Sufficiency  of  evidence  as  to,  .see  Trtat.,  142, 

143. 


^•» 


INFECTIOUS  DISEASE. 

See  Contagious  and  Infectious  Diseases. 

» * » 

INFIDELITY. 

Charge  of,  as  ground  for  divorce,  see  Di- 
VOBCE  AND  Sepakation,  27-30,  33. 


INFLAMMABLE    SUBSTANCES. 

Effect  of  use  of,  on  insurance,  see  Insub- 

ANCE,  267-275. 
Municipal  regulations  as  to,  see  Munxcdpai. 

CORPOEATIONS,  198,  207. 
Municipal   liability  for  injury  to  property 

resulting  from  deposit  of  inflammable 

material    in    highway,    see    Municipal 

CORPOBATIONS,    332. 

Negligence  in  sale  of,  see  Nexsuqence,  I.  b, 

2. 
Warranty  on  sale  of,  see  Sale,  82. 


♦-»♦ 

INFLUENCING    JURY. 

As  ground  for  new  trial,  see  New  Tbial,  41. 

♦  *» 

INFORMATION. 

Refusal  of,  by  employees  to  passenger,  see 

Carriers,  192;  Damages,  72. 
For  criminal  offense,  see  Indictment,  etc. 
In  quo  warranto,  see  Quo  Warranto. 


INFORMATION  AND  BELIEF. 

Allegation  on,  see  Contempt,  73. 


INFRINGEMENT. 


Of  copyright,  see  Copyright,  17-24;  Elec- 
tion OF  Remedies,  8;  Injunction,  386. 
Of  patent,  see  Patents,  V. 
Of  tradename,  see  Tradename,  8-23. 
Digest   1-52  L.R.A.(N.S.) 


Right  of  ingress  to  property,  see  Hiohwatb, 
24^26,  96-101,  134. 


INHALATION  OF  GAS. 

Death  of  insured  from,  see  iNSxmANOl,  754. 


INHERENT  POWERS. 

Of  courts,  see  Courts,  7-10. 


♦  •  » 


INHERITANCE. 

See  Descent  and  Distribution. 


INHERITANCE  TAX. 

See  Taxes,  V. 

»«» 

INHUMAN  TREATMENT. 

Afl   ground   for    divorce,   see   Divorce   and 
Separation,  III.  a. 


INITIALS. 


Effect  of  error  in,  in  publication  of  sum- 
mons, see  Writ  and  Process,  4,  5. 

Mistake  in  middle  initial  in  notice  of  con- 
demnation proceedings,  see  Eminent 
Domain,  128,  129. 

Use  of,  instead  of  given  name  in  court  pro- 
ceedings, see  Name,  4;  Writ  and  bo- 
oess,  6,  7. 


INITIATION. 


By  servants,  master's  liability  for  injury  by, 
see  Masteir  and  Servant,  953. 


INITIATIVE,     REFERENDUM,     AND 
RECALL. 

Initiative  and  referendum. 

Illegal  delegation  of  power  by  provision  for 
initiative,  see  Constitutional  Law,  80. 

Constitutionality  of  provisions  as  to,  see 
Constitutional  Law,  145. 

As  infringement  on  right  to  republican  form 
of  government,  see  Constitutional 
Law,  822-825. 

Mandamus  to  compel  submission  to  voters  of 
proposed  mimicipal  ordinance,  see  Man- 
damus, 52. 


INJUNCTION. 


1491 


Claim  that  necessary  publicity  was  not  given 
to  law  adopted  at  referendum  election, 
see  Statutes,  84. 

Affixing  title  to  initiative  measure  for  iden- 
tifying purposes,  see  Statutes,  90. 

1.  An  election  of  presidential  electors 
and  representatives  in  Congress  is  a  regular 
general  election,  within  the  meaning  of  a 
constitutional  provision  that  a  referendum 
statute  may  be  voted  upon  by  the  electors 
at  the  next  regular  general  election,  and  it 
is  immaterial  that  an  attempt  to  elect  state 
officers  at  the  same  election  proves  to  be 
invalid.  Allen  v.  State,  44:  468,  130  Pac. 
1114,  14  Ariz.  458. 

2.  The  legislature  has  power  to  grant 
the  inhabitants  of  a  municipality  the  power 
of  referendum  upon  the  granting  of  liquor 
licenses  by  the  municipal  authorities;  and 
this  power  is  not  restricted  by  a  constitu- 
tional amendment  reserving  to  the  people 
the  right  to  require  any  law  which  the 
legislature  may  enact  to  be  submitted  to 
them  before  going  into  effect,  except  such 
as  may  be  necessary  for  the  immediate 
preservation  of  the  public  peace,  health,  or 
safety,  or  support  of  the  city  government 
and  its  existing  institutions.  State  ex  rel. 
Wagner  v.  Summers,  50:  206,  144  N.  W. 
730,  33  S.  D.  40.  (Annotated) 

3.  The  granting,  on  motion,  of  a  liquor 
license  by  municipal  authorities,  is  subject 
to  referendum  under  a  statute  providing 
that  no  law,  ordinance,  or  resolution,  which 
are  by  the  statute  defined  to  mean  ordi- 
nances, resolves,  orders,  agreements,  con- 
tracts, and  franchises,  and  any  measure 
which  it  is  in  the  power  of  the  city  author- 
ities to  enact,  shall  go  into  effect  until 
the  expiration  of  a  certain  time,  whether 
required  to  be  published  or  not,  during 
which  it  shall  be  subject  to  referendum. 
State  ex  rel.  Wagner  v.  Summers,  50:  206, 
144  N.  W.  730,  33  S.  D.  40. 

4.  An  ordinance  cannot  be  validly 
adopted  by  initiative  and  referendum  if  it 
would  be  void  if  enacted  by  the  city  council. 
State  ex  rel.  Davies  v.  White,  50:  195,  136 
Pac.  110,  36  Nev.  354.  (Annotated) 

5.  An  initiative  or  referendum  provi- 
sion of  a  municipal  charter  cannot  be  held 
invalid  as  preventing  the  proper  exercise  of 
the  police  power  because  under  the  con- 
stitutional limitation  of  indebtedness  there 
might  not  be  funds  available  to  hold  the 
election  necessary  to  re[)eal  or  amend  a 
prior  ordinance.  Ex  parte  Pfahler,  11:  1092, 
88  Pac.  270,  150  Cal.  71. 

6.  The  use,  in  a  section  of  the  Constitu- 
tion, of  the  words  "legislative  authority" 
to  designate  the  ordinary  legislative  body 
of  cities,  does  not  prevent  the  incorporation 
in  their  charters  of  a  provision  for  initia- 
tive and  referendum,  under  which  laws  may 
be  enacted  directly  by  the  people.  Ex  parte 
Pfahler,  11:  1092,  88  Pac.  270,  150  Cal.  71. 

(Annotated) 

7.  Initiative  and  referendum  provi- 
sions of  a  municipal  charter  are  not  in  hope- 
less conflict  although  under  the  latter  cer- 
tain emergency  ordinances  take  effect  im- 
Digest   1-52  L.R.A.(N.S.) 


I  mediately  on  their  passage,  which  cannot  be 
.  effected  under  the  former,  so  that  incon- 
sistent ordinances  might  exist  at  the  same 
time,  since  o^e  would  be  construed  as  hav- 
ing precedence.  Ex  parte  Pfahler,  11:  1092, 
88  Pac.  270,  150  Cal.  71. 

8.  The  police  power  granted  by  the 
Constitution  to  a  municipal  corporation  is 
not  suspended  by  a  provision  of  its  charter 
authorizing  the  adoption  of  ordinances  by 
popular  vote,  which  can  be  repealed  or 
amended  only  in  the  same  manner  at  special 
elections,  which  can  be  held  only  at  inter- 
vals of  six  months.  Ex  parte  Pfahler, 
II :  1092,  88  Pac.  270,  150  Cal.  71. 

9.  The  placing,  by  a  freeholders'  char- 
ter adopted  as  provided  by  the  constitution, 
of  power  in  the  electors  directly  to  enact 
ordinances,  renders  such  power  paramount 
to  that  of  the  mayor  and  council,  and  is 
not  invalid  as  providing  for  two  equal,  co- 
ordinate lawmaking  bodies,  the  one  abso- 
lutely independent  of  the  other.  Ex  parte 
Pfahler,  11:  1092,  88  Pac.  270,  150  Cal.  71. 
Recall. 

Review  of  decision  of  city  clerk  as  to  suf- 
ficiency of  petition  for  recall  election, 
see  Courts,  50. 

Power  of  recall  as  political,  and  not  judi- 
cial, functions,  see  Courts,  78. 

Injunction  against  recall  elections,  see  Par- 
ties, 126. 

10.  In  the  creation  of  an  office  by  the 
legislature,  it  may  impose  the  limitation 
and  condition  that  the  incumbent  may  be 
recalled,  and  in  such  a  case  the  incumbent 
takes  the  office  subject  to  the  conditions 
imposed.  State  ex  rel.  Topping  v.  Houston, 
50:  227,  143  N,  W.  796,  94  Neb.  445. 

(Annotated) 

11.  The  provision  of  a  statute  that  a 
recall  petition  "shall  contain  a  general 
statement  of  the  grounds  upon  which  the 
removal  is  sought"  does  not  require  the 
petition  to  contain  specific  charges  of  mis- 
conduct such  as  would  be  required  in  a 
judicial  inquiry,  but  its  purpose  is  to  fur- 
nish information  to  the  electors  upon  which 
a  political,  and  not  a  legal,  issue  may  be 
raised  at  the  election.  State  ex  rel.  Top- 
ping V.  Houston,  50:  227,  143  N.  W.  796,  94 
Neb.  445. 

12.  If  no  fraud  or  mistake  appears  in 
a  petition  for  the  recall  of  a  municipal 
officer  under  §  36,  art.  3,  chap.  14a,  Neb. 
Comp.  Stat.  1911,  and  the  petition  is  regular 
in  form  and  accompanied  by  the  proper  cer- 
tificate of  the  city  clerk,  the  city  council 
must  proceed  under  the  statute  to  convene 
and  fix  a  date  for  the  recall  election.  State 
ex  rel.  Topping  v.  Houston,  50:  227,  143  N. 
W.  796,  94  Neb.  445. 


INJUNCTION. 


I.  Right   to,    and  tvhen   granted,    1- 

401. 
a.  In  general,   1—50. 
6.  Contract  rights;  covenant,  51- 

89. 


1492 


INJUNCTION,  I.  a. 


/. — continued. 

c.  Transfer  or  dtapoaition  of  prop- 

eity,    90—96. 

d.  Illegal       or       tortious       acts; 

crimes,    97—174:. 

e.  Talcing  of,   injury  to,   or  tres- 

pass    upon,      real     property, 

175-213. 
1.  Water  rights,   214-239. 
g.  As    to    corporate    matters;   as- 
sociations, 240,  241. 
h.  As    to    office;    elections,    242— 

245. 
i.  Against       legal       proceedings, 

246-309. 
j.  Against       officers       generally, 

310-358. 
fc.  Against  taxes  or  assessments, 

359-367. 
I.  As  to  paries,  highways,  bridges, 

and  railroads,   368—385. 
m.  As     to     patents,      copyrights, 

trademarks,  tradenames,  and 

imitations,  386—401. 
II.  Preliminary       and       interlocutory 
injunctions,    402—422. 
III.  Procedure,    423—446. 

Prematurity  of  injunction  suit,  see  Acnow 
OR  Suit,  18. 

Presumptions  on  appeal  in  injunction  case, 
see  Appeal  and  Erbob,  458. 

Review  on  appeal  of  interlocutory  matters, 
see  Appeal  and  Erbob,  556. 

Raising  question  of  jurisdiction  for  first 
time  on  appeal,  see  Appeal  and  Ebbob, 
710. 

Dismissal  of  bill  on  appeal,  see  Appeal  and 
Error,  1628. 

Making  perpetual,  injunction  which  appel- 
late court  directs  to  be  continued  to  the 
hearing,  see  Appeal  and  Error,  1647. 

As  violation  of  full  faith  and  credit  clause 
of  Constitution,  see  Constitutional 
Law,  182. 

Constitutionality  of  statute  forbidding  grant 
of,  see  Constitutional  Law,  549. 

Effect  of  injunction  against  performance  of 
contract  in  one  state  on  right  to  enforce 
it  in  another,  see  Corporations,  10. 

Refusal  of  injunction  because  of  estoppel, 
see  Estoppel,  22. 

Estoppel  to  enjoin  laying  gas  pipes  in  pri- 
vate property,  see  Estoppel,  155. 

Presumption  as  to  matters  determined  in 
injunction  suit,  see  Evidence,  505. 

Effect  of  failure  of  one  against  whom  in- 
junction is  sought  to  seek  affirmative 
relief  in  that  suit,  on  right  to  bring  ac- 
tion at  law,  see  Judgment,  87. 

Injunction  as  infringing  right  to  trial  by 
jury,  see  Juby,  47,  48. 

Effect  of,  to  interrupt  running  of  limita- 
tions, see  Limitation  of  Actions,  274- 
276. 

Liability  of  municipality  for  suing  out  of, 
see  Municipal  Corporations,  432,  433. 

Prohibition  to  restrain  injunction  proceed- 
ing, see  Prohibition,  18-20,  22.  I 

As  to  prohibition,  see  Prohibition. 

Digest   1-52  ImR.A.(N.S.) 


/.  Right  to,  and  when  granted. 

a.  In  general. 

(See  aluo  same  heading  in  Digest  L.R.A. 
1-10.) 

Against  one  wrongfully  claiming  title  to 
premises,  see  Cloud  on  Title,  9. 

Against  transportation  of  liquor  by  inter- 
state carrier,   see  Commerce,  42. 

Against  condemning  right  of  way  for  tele- 
graph line  along  railroad  right  of  way, 
see  Eminent  Domain,  145. 

Against  proceeding  to  subject  wages  to  pay- 
ment of  debt,  see  Exemptions,  24. 

Against  filing  of  rates  with  interstate  com- 
merce commission,  see  Interstate  Com- 
MEBCE  Commission,  3. 

Against  labor  organization,  see  Labob  Ob- 
qanizations,  12. 

Against  nuisance,  see  Nuisances,  II. 

Against  maintenance  of  public  school  in 
parochial  school  building,  see  Schools, 
41. 

Review  of  discretion  as  to,  see  Appeal  and 
Ebror,  629-638. 

Original  jurisdiction  of  appellate  court  to 
grant,  see  Courts,  II.  a,  2. 

Jurisdiction  to  grant,  generally,  see  Courts, 
22,  39,  68,  80,  202. 

Election  to  seek  injunction  or  damages  for 
breach  of  contract,  see  Election  of 
Remedies,  ]3. 

Estoppel  to  maintain,  see  Estoppel,  160. 

1.  The  question  of  the  awarding  of  an 
injunction,  in  so  far  as  the  right  depeiuls 
upon  the  provisions  of  a  statute,  is  to  be 
determined  by  the  statute  in  force  at  the 
time  the  relief  is  to  be  awarded,  rather 
than  that  in  force  at  the  time  the  con- 
troversy arose.  Dieterich  v.  Fargo,  22:  696, 
87   N.   E.  518,   194  N.  Y.  359. 

2.  The  judicial  power  of  the  courts  of 
Wisconsin  to  grant  injunctive  relief,  tem- 
porary or  otherwise,  is  not  derived  solely 
from  statutes,  but  such  power  as  existed 
at  common  law  is  lodged  by  the  constitu- 
tion in  the  courts.  Ekern  v,  McGovern, 
46:  706,  142  N.  W.  595,  154  Wis.  157. 

3.  A  right  is  not  established  at  law  so 
as  to  support  an  injunction  to  enforce  it 
if  an  appeal  is  pending  from  the  judgment. 
Pana  v.  Central  Washed  Coal  Co.  48:  244, 
102  N.  E.  992,  260  111.  111. 

4.  One  may  not  be  enjoined  from  pro- 
tecting and  enforcing  his  rights  by  lawful 
means,  unless  his  acts  to  that  eli'ect  are 
done  or  threatened  unnecessarily,  not  real- 
ly for  the  purpose  of  protecting  his  rights, 
but  maliciously  to  vex,  annoy,  and  injure 
another.  Kryptok  Co.  v.  Stead  Lens  Co. 
39:  I,  190  Fed.  767,  111  C.  C.  A.  495. 

5.  Redemption  of  lands  forfeited  for 
taxes,  under  a  void  order  giving  leave  to 
redeem,  is  properly  enjoined  in  toto  in  a 
suit  brought  by  the  parties  in  possession  to 
remove  cloud  on  title,  where  the  land  sought 
to  be  redeemed  lies  either  wholly  or  partly 
within  the  boundaries  of  the  plaintiff's'  land, 
and  the  order  was  obtained  that  it  might 


INJUNCTION,  I.  a. 


1493 


be  used  to  their  prejudice.     Whitehouse  ▼. 
Jones,  12:  4C,  55  S.  E.  730,  60  W.  Va.  680. 

6.  Injunction  will  lie  in  favor  of  one  who 
took  an  assignment  of  a  judgment  free  from 
any  attorneys'  lien  thereon,  to  prevent  the 
attempted  enforcement  of  such  lien  against 
the  judgment.  Humptulips  Driving  Co.  v. 
Burrows,  37:  226,  118  Pac.  827,  65  Wash. 
636. 

7.  Injunction  will  not  lie  to  prevent  an 
employer  from  accepting  tlie  benefits  of  an 
employees'  indemnity  act,  where  there  is  an 
adequate  remedy  at  law  for  any  injury 
which  may  come  to  the  emplovees  thereby. 
Borgnis  v.  Falk  Co.  37:  489,  133  N.  W.  209, 
147  Wis.  327. 

8.  Injunction  will  lie  to  prevent  one 
who  purports  to  publish,  for  the  informa- 
tion of  customers,  a  complete  list  of  express 
companies  doing  business  in  a  certain  city, 
from  intentionally  omitting  the  name  of  a 
reputable  company  engaged  in  that  business, 
since  such  act  is  a  violation  of  his  legal 
property  rights.  Davis  v.  New  England  R. 
Pub.  Co.  25:  1024,  89  N.  E.  565,  203  Mass. 
470. 

9.  Persons  not  holding  adversely,  or 
having  any  title  of  their  own,  to  property 
which  has  been  acquired  by  a  church  organ- 
ization for  the  purpose  of  religious  wor- 
ship in  accordance  with  the  doctrine  and 
discipline  of  a  particular  denomination,  ex- 
cept as  members  thereof,  under  which  they 
claim  the  right  of  possession,  may  be  en- 
joined from  using  such  property  contrary 
to  the  determination  of  the  governing  au- 
thorities of  such  denomination.  St.  Vin- 
cent's Parish  v.  Murphy,  35:  919,  120  N. 
W.  187,  83  Neb.  630. 

10.  A  man  is  entitled  to  prevent  his 
wife  from  entering  into  business  competi- 
tion with  him,  where  he  is  able  and  willing 
to  support  her.  Root  v.  Root,  32:  837,  130 
N.  W.    194,   164  Mich.   638.        (Annotated) 

11.  A  statute  requiring  chancellors  to 
issue  search  warrants  for  intoxicating  li- 
quor which  they  have  been  informed  has 
been  shipped  into  prohibition  territory  does 
not  empower  them  to  enjoin  carriers  from 
delivering  liquor  which  they  bring  into  such 
territory,  until  a  certain  time  after  it  has 
reached  its  destination  and  notice  of  its  ar- 
rival has  been  posted,  although  the  discov- 
ery and  destruction  of  the  liquor  would  be 
thereby  facilitated.  United  States  Express 
Co.  v.  State  ex  rel.  McDonald,  35:  879,  139 
S.  W.  637,  99  Ark.  633.  (Annotated) 

12.  Mine  owners  and  ore  millers  in  a 
mining  district  cannot  enjoin  the  operation 
of  an  assay  office  within  the  district,  al- 
though it  is  merely  a  fence  for  buying  or 
handling  stolen  ore.  Daniels  v.  Portland 
Gold  Min.  Co.  45:  827,  202  Fed.  637,  121 
C.  C.  A.  47.  (Annotated) 

13.  The  special  damage  sustained  by  the 
publisher  of  a  weekly  newspaper  from  the 
fact  that  a  street  railway  company  placed 
advertisements  on  the  upper  inside  portions 
of  its  cars,  thereby  diverting  business  which 
he  might  otherwise  have  been  able  to  secure, 
is  too  remote  and  conjectural  to  entitle  him 
to  maintain  a  suit  to  enjoin  the  company 
Digest  1-52  KR.A.(N.iS.) 


from  so  doing,  on  the  ground  that  its  acts 
were  ultra  vires.  Burns  v.  St.  Paul  City 
R.  Co.  12:  757,  112  N.  W.  412,  101  Minn. 
363.  (Annotated) 

14.  A  ticket  broker  cannot  enjoin  the 
proprietor  of  a  theater  from  warning  in- 
tending purchasers  that  tickets  purchased 
on  the  sidewalk  in  violation  of  the  con- 
ditions printed  thereon  will  not  be  honored, 
although  such  conduct  interferes  with  his 
business  and  subjects  him  to  loss.  Collister 
v.  Hayman,  i:  1188,  76  N.  E.  20,  183  N.  Y. 
250. 

Anticipated   or  threatened  injury. 

15.  If  a  corporation  engaged  in  a  pub- 
lic business  contracts  to  enter  upon  a  line 
of  conduct  in  respect  to  such  business  that 
tends  to  aflect  such  public  interest  in- 
juriously, and  is  contrary  to  public  policy 
and  ultra  vires,  performance  thereof  by  the 
corporation  may  be  restrained  in  equity 
at  the  suit  of  the  attorney  general,  without 
regard  to  whether  or  not  actual  injury  has 
resulted  to  the  public.  State  ex  rel.  McCar- 
ter  v.  Firemen's  Ins.  Co.  (N.  J.  Err.  & 
App.)  29:  1194,  73  Atl.  80,  414,  74  N.  J.  Eq. 
372. 

16.  The  business  of  fire  insurance  is 
afTected  with  a  public  interest  within  the 
rule  that,  if  a  corporation  engaged  in  a 
public  business  contracts  to  enter  upon  a 
line  of  conduct  in  respect  to  such  business 
that  tends  to  affect  such  public  interest 
injuriously,  and  is  contrary  to  public 
policy,  and  ultra  vires,  performance  there- 
of by  the  corporation  may  be  restrained  in 
equity,  at  the  suit  of  the  attorney  general, 
without  regard  to  whether  or  not  actual 
injury  has  resulted  to  the  public.  State 
ex  rel.  McCarter  v.  Firemen's  Jns.  Co.  (N. 
J.  Err.  &  App.)  29:  1194,  73  Atl.  80,  414, 
74  N.  J.  Eq.  372. 

17.  Preparation  to  engage  in  business 
contrary  to  covenant  is  sufficient  to  entitle 
the  covenantee  to  equitable  relief,  without 
the  necessity  of  waiting  until  the  business 
is  actually  begun.  Harris  v.  Theus,  10:  204, 
43  So.  131,  149  Ala.  133. 

18.  An  injunction  will  not  be  granted 
at  the  instance  of  an  adjoining  owner 
against  the  discharge  of  water  from  the 
roof  of  a  building  into  an  alley,  where  it 
is  not  claimed  that  the  construction  of  the 
building  is  in  itself  a  nuisance,  but  only 
that  the  eflfect  of  it  will  be  to  create  a 
nuisance  in  the  future  by  the  freezing  of 
the  escaping  water,  since  it  must  be  as- 
sumed that  all  necessary  steps  will  be  taken 
to  prevent  the  creation  of  a  nuisance  and 
to  abate  it  in  case  one  arises.  Reynolds  v. 
Union  Sav.  Bank,  49:  194,  136  N.  W.  529, 
155  Iowa,  519. 

Injury  or  inconvenience  to  defendant. 
See  also  infra,   222. 

19.  It  is  a  good  defense  to  an  applica- 
tion for  an  injunction  against  infringement 
of  a  patent,  that  the  wrong  and  injury 
likely  to  be  inflicted  upon  the  opponent 
of  the  application  by  its  issue  will  probably 
be  greater  than  that  which  the  applicant  is 
likely  to  suffer   from   its   denial.     Kryptok 


1494 


INJUNCTION,  I.  a. 


Co.  V.  Stead  Lens  Co.  39:  i,  190  Fed.  767,  111 
C.  C.  A.  495.  (Annotated) 

20.  Injunction  of  a  breach  of  contract 
will  be  refused  where  the  injury  to  defend- 
ant from  granting  it  would  exceed  the  in- 
jury to  plaintiff  from  its  denial,  if  the 
terms  of  the  contract  are  not  free  from 
doubt,  and  the  right  to  enjoin  is  not  en- 
tirely clear,  while  the  consequence  of  its 
breach  is  remote  or  problematical  or  specu- 
lative. Cleveland  v.  Martin,  3:  629,  75  N. 
E.  772,  218  111.  73. 

21.  The  doctrine  of  comparative  equi- 
ties will  not  prevent  the  issuance  of  an 
injunction  against  the  wrongful  mainte- 
nance of  a  dam  to  the  injury  of  a  highway 
bridge  although  its  removal  will  injure  its 
owner  to  the  extent  of  $3,000,  while  the  in- 
jury to  the  bridge  from  its  continuance 
would  not  amoimt  to  more  than  $25  a  year. 
Bristol  v.  Palmer,  31:  881,  74  Atl.  332,  83 
Vt.   54.  (Annotated) 

22.  An  injunction  will  not  be  issued  to 
compel  the  removal  of  the  wall  of  a  build- 
ing which,  owing  to  climatic  conditions  dur- 
ing process  of  construction,  bulged  over  the 
division  line  about  2  inches,  several  feet 
above  the  earth,  where  the  injury  to  the 
adjoining  owner  is  at  the  time  of  suit 
trifling,  and  at  no  time  can-  be  so  great 
that  it  will  not  be  many  times  outweighed 
by  the  expense  of  moving  the  wall.  Coombs 
v.  Lenox  Realty  Co.  47:  1085,  88  Atl.  477, 
111  Me.  178. 

23.  A  telegraph  company  which  has  per- 
mitted wires  belonging  to  a  municipal  cor- 
poration to  remain  for  ten  years  on  its 
poles,  as  required  as  a  condition  to  its 
receiving  a  franchise  to  place  the  poles  in 
the  streets,  may,  although  the  corporation 
exceeded  its  authority  in  making  the  re- 
quirement, be  denied  an  injunction  to  com- 
pel their  removal,  where  that  would  cause 
expense  and  public  inconvenience,  and  com- 
pensation in  damages  may  be  made.  Postal 
Teleg.-Cable  Co.  v.  Chicopee,  32:  997,  93  N. 
E.  927,  207  Mass.  341. 

24.  A  railroad  company  will  not  be  en- 
joined from  breaking  its  covenant  to  run 
freight  and  passenger  trains  to  and  from  the 
property  of  the  covenantee  after  it  has,  for 
the  public  welfare,  changed  its  route,  where 
the  burden  would  be  wholly  out  of  propor- 
tion to  the  benefit  which  would  accrue  to 
the  covenantee.  Whalen  v.  Baltimore  &  O. 
R.  Co.  17:  130,  69  Atl.  390,  108  Md.  11. 
Dispute  as  to  title. 

25.  A  controversy  as  to  the  title  of  prop- 
erty taken  or  sought  to  be  taken  without 

'  compensation  for  a  public  road,  turning  on 
the  construction  of  a  deed,  does  not  pre- 
vent an  injunction  against  such  taking. 
C'lavton  v.  Gilmer  County  Court,  2:598,  52 
S.  E.  103,  58  W.  Va.  253. 
"Want  of  mutuality. 

26.  Want  of  mutuality  will  prevent  a 
court  of  equity  from  enjoining  violation  of 
a  contract  by  a  heating  company,  after  in- 
stalling a  system  in  a  building,  to  furnish 
heat  at  a  certain  sum  per  annum,  where  the 
use  of  heat  from  its  plant  rests  in  the  dis- 

Digest  1-52  KR.A.(N.S.) 


cretion  of  the  consumer.     Fowler  Utilities 

Co.  V.  Gray,  7:  726,  79  N.  E.  897,  168  Ind.  1. 

Mandatory   injunction. 

Appeal  from  denial  of  mandat6ry  injunc- 
tion, see  Appeal  and  Ekrob,  40,  41. 

Effect  of  mandatory  injunction  to  compel 
removal  of  telephone  pole  to  estop 
plaintiff  to  ranove  it  himself,  see  Eis- 
TOPPEL,   94. 

See  also  infra,  232,  400. 

27.  Mandatory  injunctions  are  seldom  al- 
lowed before  final  hearing,  but,  in  cases  of 
necessity  and  extreme  hardship,  they  may  be 
awarded  at  the  inception  of  the  suit,  and 
without  notice.  State  ex  rel.  Powhatan  Coal 
&  C.  Co.  V.  Ritz,  9:  1225,  56  S.  E.  257,  60  W. 
Va.  395. 

28.  Where  the  status  intended  to  be 
preserved  by  prohibitory  injunction  is 
changed  or  disturbed  by  the  defendant  in 
violation  of  tliat  writ,  such  defendant  may 
be  compelled  by  a  mandatory  injunction 
issued  before  a  trial  on  the  merits  to  re- 
store such  status.  Vicksburg,  S.  &  P.  R, 
Co.  V.  Webster  Sand,  G.  &  Constr.  Co.  47: 
1 155,  62  So.  140,  132  La.  1051. 

( Annotated ) 

29.  A  mandatory  injunction  may  be 
granted  requiring  the  closing  of  windows 
opened  in  a  party  wall.  Coggins  v.  Carey, 
10:  1191,  66  Atl.  673,  106  Md.  204. 

30.  A  mandatory  injunction  will  not  lie 
to  compel  the  removal  of  a  slack  pile  on  the 
property  of  a  coal  washing  company,  which 
gives  off  foul  odors  and  gases,  owing  to 
fires  which  originate  in  it,  where  the  piles 
have  existed  for  a  number  of  years,  and  the 
evidence  is  conflicting  as  to  the  dangerous 
effect  of  the  odors  and  gases.  Pana  v. 
Central  Washed  Coal  Co.  48:  244,  102  N.  E. 
992,  260  111.  111.  (Annotated) 

31.  A  mandatory  injunction  will  not  lie 
to  compel  a  corporate  lessee  of  a  coal  mine 
within  the  limits  of  a  municipal  corporation 
to  extinguish  a  fire  in  the  mine  which  has 
become  a  nuisance  to  the  health  and  prop- 
erty of  adjacent  property  owners,  where  it 
has  exhausted  its  entire  capital  in  an  in- 
effectual effort  to  control  the  fire,  and  such 
control  will  require  the  expenditure  of  a 
large  sum  of  money  and  the  service  of  a 
large  force  of  men  for  a  long  jieriod  of 
time.  McCabe  v.  Watt,  24:  274,  73  Atl. 
453,  224  Pa.  253. 

32.  A  mandatory  injunction  will  not  be 
issued  to  compel  a  municipal  corporation  to 
extinguish  a  fire  in  a  mine  within  its  limits, 
which  is  on  private  property  and  was  start- 
ed without  any  wrongdoing  on  its  part. 
Cameron  v.  Carbondale,  28:  494,  76  Atl.  198, 
227   Pa.   473. 

33.  A  mandatory  injunction  will  lie  to 
compel  a  rai-\iicipal  corporation  to  designcte 
the  streets  through  which  mains  are  to  be 
laid,  and  the  location  of  hydrants  accord- 
ing to  the  terms  of  its  contracts  for  the 
construction  of  a  waterworks  plant,  where 
it  is  impossible  for  the  contractor  to  pros- 
ecute his  work  until  these  things  are  done. 
Gadsden  v.  Mitchell,  6:  781,  40  So.  557,  145 
Ala.  137.  (Annotated) 


INJUNCTION,  I.  a. 


1495 


34.  One  who  locates  his  building  partly 
on  the  land  of  an  adjoining  property  own- 
er, without  any  survey  or  search  for  boun- 
daries, although  he  has  been  warned  not 
to  encroach  on  the  neighboring  property, 
may  be  compelled  by  mandatory  injunc- 
tion to  remove  the  encroachment.  Ker- 
shishian  v.  Johnson,  36:  402,  96  N.  E.  56, 
210    Mass.    135.  (Annotated) 

35.  A  gas  company  which  has  unlaw- 
fully laid  its  pipes  on  a  route  other  than 
the  one  condemned  for  such  purpose  may  be 
compelled  by  the  owner  of  such  lands,  by  a 
mandatory  injunction,  to  remove  such  pipes 
and  restore  the  land  to  its  original  condi- 
tion. Lovett  V.  West  Virginia  C.  Gas  Co. 
24:  230,  65  S.  E.  196,  65  W.  Va.  739. 

36.  A  mandatory  injunction  requiring 
the  removal  of  a  telephone  line  from  pri- 
vate property  does  not  prevent  the  corpo- 
ration from  acquiring  the  right  to  main- 
tain it  there  by  grant  or  under  the  power 
of  eminent  domain.  Burrall  v.  American 
Teleph.  &  Teleg.  Co.  8:  109 1,  79  N.  E.  705, 
224  111.  266. 

37.  A  telephone  company  cannot  defeat 
an  injunction  against  the  wrongful  main- 
tenance of  its  line  on  private  property,  on 
the  ground  that  many  long-distance  mes- 
sages are  sent  over  the  line  daily,  so  that 
the  public  convenience  would  be  conserved 
by  its  continued  existence.  Burrall  v.  Amer- 
ican Teleph.  &  Teleg.  Co.  8:  1091,  79  N.  E. 
705,  224  ni.  266. 

38.  The  construction  and  operation  for  a 
number  of  years,  of  a  telephone  system,  by 
an  assignee  of  a  franchise  granted  by  a 
municipal  corporation,  will  preclude  the 
granting  of  an  injunction  on  the  petition  of 
a  taxpayer  to  compel  removal  of  the  poles 
on  the  theory  that  the  assignee  was  acting 
without  right.  De  Kalb  County  Teleph.  Co, 
V.  Button,  10:  1057,  81  N.  E.  838,  228  III. 
178. 

39.  Equitable  relief  by  way  of  manda- 
tory injunction  may  be  granted  to  compel 
a  water  company  to  furnish  water  to  one 
entitled  to  it,  if  several  months  must  elapse 
before  a  hearing  could  be  secured  upon  an 
application  for  a  writ  of  mandamus. 
Bourke  v.  Olcott  Water  Co.  33:  1015,  78  Atl. 
715,  84  Vt.   121. 

40.  Equity  has  no  jurisdiction  of  a  suit 
for  mandatory  injunction  to  compel  a  gas 
company  to  furnish,  under  its  duty  to  the 
public,  gas  to  a  consumer  with  whom  it  has 
no  contract,  since  he  has  a  complete  remedy 
at  law  by  mandamus.  Cox  v.  Maiden  &  M. 
Gaslight  Co.  17:  1235,  85  N.  E.  180,  199 
Mass.  324. 

41.  The  wrongful  burial  of  a  dog  in  a 
cemetery  lot  may  be  remedied  by  manda- 
tory injunction  against  the  cemetery  and 
the  offending  lot  owner.  Hertle  v.  Riddell, 
15:  796,  106  S.  W.  282,  127  Ky.  623. 

42.  An  injunction  against  a  discharged 
servant,  the  essential  nature  of  which  is  to 
terminate  continued  trespassing,  is  not  sub- 
ject to  the  objection  that  it  is  mandatory 
and  within  the  inhibition  of  Ga.  Civ.  Code 
1895,  §  4922,  under  which  an  injunction  man- 
datory in  its  nature  cannot  be  granted,  al- 
Disest  1-52  Ii.R.A.(N.S.) 


though  it  includes  a  restraint  against  the 
servant  from  keeping  his  goods  on  the  mas- 
ter's premises.  Mackenzie  v.  Minis,  23: 
1003,  63  S.  E.  900,  132  Ga.  323. 

43.  The  court  will  not  grant  a  manda- 
tory injunction  to  compel  the  alteration  of  a 
completed  building  to  make  it  comply  with 
the  terms  of  a  contract  executed  before  its 
construction,  for  the  lease  of  a  certain  floor 
space  therein.  Bromberg  v.  Eugenotto  Con- 
struction Co.  19:  1175,  48  So.  60,  158  Ala. 
323. 

44.  One  who  deliberately  violates  build- 
ing restrictions  placed  upon  his  lot  for  the 
benefit  of  a  district  in  a  city  cannot  avoid 
a  mandatory  injunction  to  compel  the  mod- 
ification of  his  building  so  as  to  comply 
with  the  restrictions,  on  the  theory  that  the 
loss  caused  by  it  will  be  disproportionate 
to  the  good  accomplished.  Stewart  v. 
Finkelstone,  28:  634,  92  N.  E.  37,  206  Mass. 
28. 

Personal   rights    in    general. 

45.  The  civil  courts  have  jurisdiction  in 
injunction  proceedings  instituted  to  protect 
a  personal  right.  Itzkovitch  v.  Whitaker, 
i:  1 147,  39  So.  499,  115  La.  479. 

(Annotated) 
Against  ticket  brokerage. 
Contempt    in    violating    injunction    against 

traffic  in  railroad  ticket,  see  Contempt, 

43. 

46.  Brokers  may  be  enjoined  from  deal- 
ing in  nontransferable  railroad  tickets 
which  are  not  issued  at  the  time  the  decree 
is  entered,  so  far  as  the  issuance  of  the 
tickets  has  been  announced  and  they  have 

i  been  offered  for  sale,  so  that  the  right  to 
deal  in  them  presents  a  live  question.  Lytle 
V.  Galveston,  H.  &  S.  A.  R.  Co.  10:  437,  9» 
S.  W.  396,  100  Tex.  292.  (Annotated) 

By  tajEpayer. 

Against  public  oflBcers,  see  infra,  I.  j. 
Against    taxes    or    assessments,    see    infra, 

I.  k. 
Against  refnsal  t*  fnrnish  gas. 

47.  Injunction  will  not  lie  to  restrain  a 
gas  company  from  continuing  to  refuse  to 
perform  its  public  duty  to  furnish  gas  to 
an  applicant  with  whom  it  has  no  contract. 
Cox  V.  Maiden  &  M.  Gaslight  Co.  17:  1235^ 
85  N.  E.  180,  199  Mass.  324. 

Ta  protect  right  to  hnnt. 

48.  Injunction  will  lie  to  prevent  threat- 
ened repeated  wrongful  interference  with 
the  attempt  of  a  citizen  to  take  wild 
fowl  upon  the  public  navigable  waters  of  the 
state.  Ainsworth  v.  Munoskong  Hunting  & 
F.  Club,  17:  1236,  116  N.  W.  992.  1.53  Mich. 
185.  (Annotated) 

49.  The  owner  of  an  island  valuable  only 
for  hunting  purposes  is  not  entitled  to  en- 
join the  use  of  an  artificial  blind  by  a  citi- 
zen of  the  state,  who  as  one  of  the  public 
has  a  right  to  fowl  on  the  waters  where  his 
blind  is  situated  for  hunting  purposes,  mere- 
ly because  the  blind  is  so  located  that  the 
firing  of  guns  there  will  intercept  the  flight 
of  game  and  prevent  its  passing  over  com- 
plainant's property.  Meredith  v.  Triple  Is- 
land Gunning  Club,  38:  286,  73  S.  E.  721, 
113    Va.    80.  (Annotated) 


1496 


INJUNCTION,  I.  b. 


50.  One  owning  a  natural  duck  pass  be- 
tween two  navigable  lakes  is  entitled  to  en- 
join the  erection  of  blinds  or  covers  in  front 
of  the  pass  and  325  feet  away,  by  parties 
intending  to  shoot  ducks  flying  over  the 
pass,  where,  in  so  doing,  they  are  liable  to 
shoot  over  such  owner's  land  and  to  impair 
considerably  the  value  of  her  shooting 
privilege.  Whittaker  v.  Stangvick,  lo:  921, 
111  N.  W.  295,  100  Minn.  386. 

&.  Contract  rights;  covenant, 

{See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Municipal  contracts,  see  infra,  334-337. 

Temporary  injunction,  see  infra,  412. 

Certiorari  to  annul  order  restraining  per- 
formance of  contract,  see  Certiorari, 
10. 

Waiver  of  rip;ht  to,  in  bringing  suit  on  im- 
plied contract,  see  Contracts,  16. 

Restraining  property  owner  from  attempt- 
ing to  make  improvement  in  street,  or 
interfering  with  one  to  whom  contract 
is  let,  see  Custom,  2. 

See  also  supra,  17,  20,  24,  26,  33,  39,  43, 
44;    infra,   334-336. 

51.  Equity  will  enjoin  interference  with 
one's   rights   under  a  contract,  where   it   is 

shown  that  damages  will  not  afford  an  ade- 
<juate      remedy.        Beekman      v.      Marsters, 

11:  201,  80  N.  E.  817,  195  Mass.  205. 

(Annotated) 

52.  An  injunction  suit  as  ancillary  to 
specific  performance  of  a  contract  should 
not  be  granted  when  the  specific  perform- 
ance is  denied.  Hazard  v.  Hope  Land  Co. 
18:  293,  69  Atl.  602,  —  R.  I.  — . 

53.  A  vote  of  the  directors  of  an  amuse- 
ment association  that  a  certain  person  be 
given  the  ice-cream  privilege  for  a  certain 
time  at  a  certain  price  per  year  is  not  a 
completed  contract,  .violation  of  which  can 
be  prevented  by  injunction.  Hazard  v. 
Hope  Land  Co.  18:  293,  69  Atl.  602,  —  R.  I. 
— •  (Annotated) 

54.  That  a  publishing  company  unlaw- 
fully used  uncopyrighted  manuscripts  and 
stereotyped  plates  intrusted  to  its  care  by 
the  state  to  enable  it  to  perform  its  con- 
tract to  manufacture  for  the  state  volumes 

'of  the  reports  of  its  supreme  court  does  not 
give  the  state  title  to  the  books  unlawfully 
produced,  so  as  to  enable  it  by  injunction 
to  prevent  the  publishing  company  from  dis- 
posing of  the  books.  State  v.  State  Jour- 
nal Co.  9:  174,  106  N.  W.  434,  75  Neb.  275. 

55.  Equity  will  not  take  jurisdiction  of 
a  suit  to  enjoin  the  paying  over  by  a  sol- 
vent bank,  upon  order  of  the  directors  of  a 
produce  exchange,  in  accordance  with  rules 
to  which  the  plaintiff  had  agreed,  of  mar- 
gins upon  breach  of  a  contract  for  the  sale 
of  wheat  at  a  certain  price  during  a  cer- 
tain month,  merely  because  the  other  con- 
tracting party  bought  such  large  quantities 
of  wheat  that  he  was  able  to  force  the  price 
up  to  a  point  at  which  the  agreement  could 
Digest   1-52  Ii.R.A.(N.S.) 


not  be  fulfilled  without  great  loss.  C.  H. 
Albers  Commission  Co.  v.  Spencer,  11:  1003, 
103  S.  W.  523,  205  Mo.  105. 

56.  A  retail  merchant  may  be  enjoined 
from  violating  his  contract  not  to  sell  an 
article  produced  by  a  secret  process  at  less 
than  the  price  fixed  by  the  manufacturer. 
Grogan  v.  Chaffee,  27:  395,  105  Pac.  745,  156 
Cal.  611. 

57.  Equity  will  not  enforce  by  injunc- 
tion a  provision  in  a  mortgage  that  noth- 
ing but  a  product  of  the  mortgagee  shall 
be   sold   on   the   premises,  since  the  remedy 

j  at  law  is  adequate;  and  the  fact  tliat  the 
projjerty  has  passed  into  the  possession  of 
an  assignee  who  is  not  personally  bound  by 
the  contract  is  immaterial.  Hardy  v.  Al- 
legan Circuit  Judge,  10:  474,  111  N.  W.  1G6, 
147  Mich.  594.  (Annotated) 

58.  Injunction  will  lie  to  prevent  viola- 
tion of  a  contract  by  a  merchant  who  has 
contracted  to  handle  the  product  of  the 
other  party  to  the  contract  exclusively  dur- 
ing a  specified  period  of  time.  Peerless 
Pattern  Co.  v.  Gauntlett  Dry  Goods  Co. 
42:  843,  136  N.  W.  1113,  171  Mich.  158. 

59.  One  who  grants  land  to  a  railroad 
company  for  a  ri^ht  of  way  in  consideration 
of  the  maintenance  by  it  of  a  spur  track  and 
depot  is  not  entitled  to  enjoin  the  running 
of  trains  over  the  main  line,  although  the 
company  violates  its  agreement  with  him, 
since  the  public  have  rights  requiring  unin- 
terrupted service  over  the  main  line.  Tay- 
lor v.  Florida  East  Coast  R.  Co.  16:  307, 
45  So.  574,  54  Fla.  635. 

60.  Injunction  will  lie  to  prevent  a  pub- 
lic-service corporation  from  wrongfully  ceas- 
ing to  furnish  steam  to  a  consumer  for  heat- 
ing purposes,  after  the  proper  connections 
have  once  been  made  and  the  service  has 
begun.  Seaton  Mountain  E.  L.  H.  &  P. 
Co.  V.  Idaho  Springs  Invest.  Co.  33:  1078, 
111  Pac.  834,  49  Colo.  122. 

61.  In  a  suit  brought  to  restrain  a  lessee 
of  saloon  premises  from  selling  beer  con- 
trary to  the  terms  of  his  lease,  which  pro- 
vides that  no  beer  save  of  a  particular  man- 
ufacture shall  be  sold  on  the  premises,  the 
plaintiff  is  entitled  to  an  injunction  with- 
out a  showing  of  actual  damages  or  that 
irreparable  injury  will  result  from  a  con- 
tinued violation  of  the  restrictive  clause. 
Joseph  Schlitz  Brewing  Co.  v.  Nielsen,  8: 
494,  110  N.  W.  746,  77  Neb.  868. 
Illegal  contracts. 

Nature  of  suit  by  taxpayer  to  restrain  il- 
legal public  contract,  see  Action  ob 
Suit,  55. 

Again  client's  settling  suit  without  attor- 
ney's consent,  see  Contracts,  469. 

Conclusiveness  of  judgment  adverse  to 
plaintiff,  see  Judgment,  158. 

Injunction  against  monopolistic  contract, 
see  Monopoly  and  Combinations,  77. 

See  also   infra,  240,   335,   336,  442. 

62.  Although  equity  will  not  specifically 
enforce  a  contract  to  furnish  a  supply  of 
electricity  to  a  street  car  and  electric  light- 
ing company,  which  creates  a  monopoly  con- 
trary to  the  terms  of  a  franchise  given  the 
company   which   has   contracted   to   furnish 


INJUNCTION,  I.  b. 


1497 


the  power,  it  may  enjoin  the  breach  of  the 
contract  until  such  time  as  an  adequate 
supply  can  be  procured  elsewhere,  where 
such  breach  will  result  in  great  public  in- 
convenience. Seattle  Electric  Co.  v.  Snoqual- 
mie  Falls  Power  Co.  i:  1032,  82  Pac.  713, 
40  Wash.  380.  (Annotated) 

63.  Equity  will  not  enjoin  enforcement 
of  a  contract  because  of  conduct  on  the  part 
of  defendant  which  violates  a  statute  de- 
nouncing trusts  and  combinations,  where 
the  remedy  provided  by  the  statute  for  one 
injured  by  its  violation  is  a  suit  for  dam- 
ages. C.  H.  Albers  Commission  Co.  v.  Spen- 
cer, 11:  1003,  103  S.  W.  523,  205  Mo.  105. 
Contract  void  in  part. 

64.  Although  a  telephone  company 
which  has  contracted  for  the  right  to  place 
an  exchange  in  a  hotel  and  furnish  exclu- 
sive connections  with  the  hotel  for  a  term 
of  years  cannot  enjoin  the  placing  of  a 
rival  exchange  in  the  hotel,  it  may  enjoin 
the  discontinuance  of  its  own  service  un- 
til the  expiration  of  the  contract  period. 
Central  New  York  Teleph.  &  Teleg.  Co.  v. 
Averill,  32:  494,  92  N.  E.  206,  199  N.  Y. 
128. 

Contracts  for  personal  services. 

65.  A  breach  of  contract  for  ordinary 
personal  services  is  fully  remediable  at  law, 
and  does  not  present  a  case  for  injunctive 
relief.  Simms  v.  Burnette,  16:  389,  46  So. 
90,  55  Fla.  702. 

66.  A  woman  will  not  be  enjoined  from 
violating  her  contract  to  render  services  in 
the  demonstration  and  sale  of  a  front-lace 
corset,  notwithstanding  she  is  experienced, 
competent,  and  highly  efficient  in  such  work 
and  may  be  financially  irresponsible, — espe- 
cially where  her  contract  contains  no  nega- 
tive covenant.  H.  W.  Gossard  Co.  v.  Crosby, 
6:  1115,  109  N.  W.  483,  132  Iowa,  155. 

( Annotated ) 

67.  An  agreement  by  an  employee  to 
serve  for  five  years,  and  during  that  time 
to  devoto  his  entire  time,  skill,  and  labor 
to  the  services  of  the  employer,  though 
valid,  is  not  enforceable  by  injunction, 
where  the  only  ground  for  such  relief  is  a 
provision  in  the  contract  giving  a  remedy 
for  breach  of  its  terms,  even  if  equity  will 
ever  enforce  by  injunction  a  contract  for 
ordinary  personal  service.  Taylor  Iron  & 
Steel  Co.  v.  Nichols  (N.  J.  Err.  &  App.)  24: 
933,  6!)  Atl.  186,  73  N.  J.  Eq.  684. 

68.  Injunction  will  not  lie  to  prevent 
violation  of  a  contract  by  a  salesman  to 
render  service  to  the  other  contracting 
party  for  a  specified  time,  and  not  engage 
with  a  business  competitor  during  that 
time,  if  the  duties  to  be  performed  by  him 
were  not  unique  or  extraordinary,  although 
he  had  "the  particular  run  of  a  class  of 
trade,"  and  he  may  have  gained  some  ex- 
perience and  knowledge  in  the  business  dur- 
ing his  employment  under  the  contract. 
Rosenstein  v.  Zentz,  44:  63,  85  Atl.  675,  118 
Md.  564. 

69.  A  salesman  and  local  manager  for 
a   nonresident   corporation,    who   by   virtue 
of   his   position  becomes   familiar  with  the  ! 
business  of  the  company  and  its  customers. 
Digest  1-52  I^R.A.(N.S.) 


and  takes  orders  for  the  delivery  of  maps 
by  such  company,  and  subsequently,  during 
the  term  for  which  he  had  contracted  to 
serve  such  company,  broke  his  contract  with 
it  and  entered  the  service  of  a  rival  com- 
pany in  the  same  territory,  and  failed  to 
deliver  to  his  former  employer  orders  tak- 
en for  its  maps,  may,  after  he  has  become 
insolvent,  be  enjoined- from  delivering  maps 
of  the  second  company  on  orders  taken  for 
the  first.  Kinney  v.  Scarbrough  Co.  40: 
473,  74  S.  E.  772,  138  Ga.  77. 
Contracts  not  to  divulge  trade  se- 
crets. 
As  to  wrongful  appropriation  of  secret  in- 
formation in  absence  of  contract,  see 
infra,  116-121. 
Not    to    engage    in    or    aid    competing 

business. 
Effect  of  remedy  at  law,  see  Eqtjity,  37. 
Variance  between   pleading   and   proof,   see 

Evidence,  2469. 
To  restrain  one.  selling  goodwill  of  the 
business  from  engaging  in  competing^ 
business,  see  Goodwill,  6. 
70.  Injunction  will  lie  against  the  breach 
of  contract  by  one  who,  when  an  inexpe- 
rienced physician,  was  takesji  into  the  office 
of  an  experienced  practitioner  and  paid  a 
salary,  introduced  to  patients,  and  furnished 
conveyances  for  the  performance  of  his  pro- 
fessional duties,  upon  consideration  that  he 
would  not  engage  in  the  practice  of  his  pro- 
fession in  the  city  where  the  business  was  lo- 
cated within  five  years  after  the  termination 
of  his  relation  with  the  other  party,  after 
he  has  received  the  consideration  for  hi» 
promise.  Freudenthal  v.  Espey,  26:  961,  102: 
Pac.  280,  45  Colo.  488. 

71.  Acts  of  one  who  has  sold  his  business 
under  an  agreement  not  to  engage  in  the 
same  business  within  the  county,  which  are 
in  violation  of  such  agreement,  and  which 
result  injuriously  to  his  vendee,  may  be 
enjoined  at  the  suit  of  such  vendee.  Am- 
mon  V.  Keill,  52:  503,  146  N.  W.  1009,  95- 
Neb.  695. 

72.  An  injunction  restraining  a  former 
employee  from  engaging  in  a  competing 
business  within  the  state,  in  violation  of  his 
contract,  will  not  be  granted  merely  be- 
cause of  the  difficulty  in  detecting  all  the 
violations  of  the  contract,  nor  on  the  ground 
of  the  employee's  alleged  insolvenev.  Simms 
V.  Burnette,  16:  389,  46  So.  90,  55  Fla.  702. 

(Annotated) 

73.  Equity  will  enforce  an  agreement  by 
the  owner  of  a  tract  of  fire  clay  not  to  sell 
clay  during  the  period  covered  by  the  con- 
tract to  any  other  than  the  other  contract- 
ing party,  nor  to  operate  a  plant  elsewhere 
in  the  state.  Lanyon  v.  Garden  City  Sand 
Co.  9:  446,  79  N.  E.  313,  223  111.  616. 

74.  One  who  purchases  a  tract  of  fire  clay 
with  full  knowledge  of  a  contract  by  which 
his  vendor  has  obligated  himself  to  work  the 
tract  and  furnish  the  product  exclusively  to 
another  for  a  term  of  years,  and  who  pro- 
ceeds to  erect  a  plant  to  utilize  the  clay,  not- 
withstanding the  notice  that  the  other  con- 
tracting party  will  protect  his  rights  in  the 
courts,  cannot  complain  of  the  granting  of 


1498 


INJUNCTION,  I.  b. 


an  injunction  against  the  violation  of  the 
contract.  Lanyon  v.  Garden  City  Sand  Co. 
9:  446,  79  N.  E.  313,  223  111.  616. 

75.  Equity  will  not  enjoin  a  breach  of 
contract  of  a  bookkeeper  not  to  engage  in 
the  liquor  business  in  the  state,  in  the  ab- 
sence of  some  special  equity,  involving  good 
will,  peculiar  intellectual  or  other  skill  or 
capacity,  secret  process  of  business,  or  other 
recognized  ground.  Simms  v.  Burnette, 
16:  389,  46  So.  90,  55  Fla.  702. 

76.  The  knowledge  acquired  by  a  book- 
keeper as  to  where  and  what  his  employer 
buys  and  to  whom  he  sells  does  not  au- 
thorize an  injunction  restraining  such  em- 
ployee from  violating  a  contract  not  to  en- 
gage in  a  similar  business  within  the  state, 
where  no  trade  secret  or  secret  process  is 
involved.  Simms  v.  Burnette,  16:  389,  46 
So.  90,  56  Fla.  702. 

77.  Injunction  lies  to  prevent  an  em- 
ployee whose  position  gives  him  possession 
of  his  employer's  trade  secrets  from  vio- 
lating his  contract  not  to  enter  the  service 
of  a  rival  concern  within  the  duration  of 
the  contract,  although  the  contract  also 
provides  that  he  may  be  discharged  upon 
thirty  days'  notice,  and  he  gained  a  por- 
tion of  his  knowledge  of  the  business  be- 
fore the  contract  was  made.  McCall  Co. 
V.  Wright,  31 :  249,  91  N.  E.  516,  198  N.  Y. 
143.  (Annotated) 

78.  Injunction  will  not  lie  to  restrain 
breach  of  a  contract  by  a  dentist  entering 
the  employment  of  one  carrying  on  such 
business  in  different  places,  that  he  will 
not  enter  into  competition  with  his  em- 
ployer for  five  years  after  leaving  his  em- 
ployment, in  the  absence  of  irremediable 
damage,  or  anything  to  show  inadequacy  of 
the  remedy  at  law.  Osius  v.  Hinchman, 
16:  393,  114  N.  W.  402,  150  Mich.  603. 
Contracts    or    covenants    relating    to 

real    property;    leases. 
Joinder  of  parties  to  restrain  violation  of 

covenant,  see  Pabties,  154. 
See   also   supra,   44. 

79.  An  injunction  will  issue  against  a 
threatened  breach  of  a  covenant  in  a  lease 
not  to  assign  without  the  lessor's  consent. 
McEacharn  v.  Colton,  2  B.  R.  C.  798, 
[1902]  A.  C.  104.  Also  Reported  in  71  L.  J. 
P.  C.  N.  S.  20. 

80.  Equity  will  enforce  by  injunction  a 
covenant  in  a  deed  of  conveyance,  restrict- 
ing the  use  of  the  land  conveyed  to  the 
building  and  maintenance  of  a  family  resi- 
dence, where  such  covenant  is  still  of  sub- 
stantial value  to  the  dominant  estate,  and 
it  affirmatively  appears  that  the  neighbor- 
hood continues  to  be  a  locality  suitable  for 
residential  purposes,  notwithstanding  a 
change  in  the  general  condition  of  the 
neighborhood.  Brown  v.  Huber,  28:  705,  88 
N.  E.  322,  80  Ohio  St.  183.  (Annotated) 

81.  The  court  may  restrain  merely  the  il- 
legal use  of  a  building  erected  for  a  garage, 
in  violation  of  a  restrictive  covenant  in  the 
title  deed  to  the  lot,  where  its  size,  shape, 
and  material  are  not  in  violation  of  the 
covenant,  and  it  might  have  been  applied 
to  a  proper  use,  and  require  the  removal  of 
Digest   1-52  L.R.A.(N.S.) 


the  building  only  in  case  it  is  put  to  an  il- 
l^al  use.  Riverbank  Improv.  Co.  v.  Ban- 
croft, 34:  730,  95  N.  E.  216,  209  Mass.  217. 

82.  Injunction  will  lie  to  prevent  the 
owner  of  a  mine  who,  after  leasing  it  for 
a  specified  time  with  the  right  to  remove 
the  minerals,  wrongfully  prevents  the  lessee 
from  exercising  his  righte  under  the  lease 
until  its  expiration,  from  interfering  with 
the  lessee's  possession  for  a  reasonable  time 
after  the  expiration  of  the  lease,  which  is 
necessary  to  enable  the  lessee  to  secure  the 
fruits  of  his  contract.  Halla  v.  Rogers,  34: 
120,  176  Fed.  709,  100  C.  C.  A.  263. 

83.  Absence  of  a  general  scheme  for  the 
development  of  the  remainder  of  a  tract  of 
land,  a  portion  of  which  is  granted  with 
restrictions  on  its  use,  is  not  fatal  to  the 
right  of  injunctive  relief  against  breach  of 
the  condition.  Ball  v.  Milliken,  37:  623,  76 
Atl.  789,  78  Atl.  625,  31  R.  I.  36. 

84.  Failure  to  seek  relief  in  cases  of 
slight  departures  from  the  spirit  of  a  re- 
striction imposed  by  deed  on  the  use  of 
land  will  not  bar  a  right  to  enjoin  material 
departure  from  the  letter  of  the  restriction 
on  the  ground  of  laches  or  under  the  stat- 
ute of  limitations.  Ball  v.  Milliken,  37: 
623,  76  Atl.  789,  31  R.  I.  36. 

85.  The  devisee  of  a  right  to  a  recon- 
veyance of  land  for  breach  of  condition  as 
to  the  uses  to  which  it  may  be  put  may  be 
granted  injunctive  relief  against  breach  of 
the  condition,  although  he  has  lost  a  right 
to  specific  performance  of  the  condition  by 
permitting  breaches  by  intermediate  gran- 
tees of  the  property.  Ball  v.  Milliken,  37: 
623,  76  Atl.  789,  31   R.  I.  36. 

86.  Injunction  will  lie  against  the  ejec- 
tion of  a  tenant  of  upper  stories  of  a  build- 
ing, who  is  not  in  default,  and  the  destruc- 
tion of  the  building  during  the  term  of  the 
lease,  to  prevent  irreparable  injury  to  the 
lessee.  Minnis  v.  Newbro-Gallogly  Co.  44: 
mo,  140  N.  W.  980,  174  Mich.  635. 

87.  Injunction  will  not  lie  to  prevent 
violation  of  a  contract  to  lease  a  certain 
floor  space  in  a  building  to  be  constructed 
after  the  construction  of  the  building  is 
completed  with  a  provision  for  less  floor 
space  than  called  for  by  the  contract.  Brom- 
berg  V.  Eugenotto  Construction  Co.  19:  1175, 
48  So.  60,  158  Ala.  323. 

88.  A  landlord  is  not  prevented  from 
shutting  off  the  heat  of  the  leased  apart* 
ment  because  of  breach  of  covenant  to  pay 
rent,  by  an  injunction  against  the  prose- 
cution of  proceedings  in  forcible  entry  and 
detainer;  nor  is  the  tenant  released  from 
his  covenant  not  to  sue  for  injuries  caused 
by  re-entry  in  case  of  such  breach.  Howe  v. 
Frith,  17:  672,  95  Pac.  603,  43  Colo.  75. 

89.  One  who,  iiaving  induced  a  business 
man  to  move  the  business  onto  his  property 
under  promise  of  a  long  term  lease,  and 
having  drawn,  and  secured  the  tenant's 
signature  to,  a  lease,  promised  to  sign  the 
same  himself,  will  be  enjoined  from  carrying 
out  his  threat  to  evict  the  tenant  unless  he 
pays  a  materially  higher  rent,  after  the 
tenant    has    made    large    expenditures    in 


INJUNCTION,  I.  c,  d. 


1499 


fitting  up  the  property.     Halligan  v.  Frey, 
49:  112,   141   N.  W.   944,   161   Iowa,   185. 

( Annotated ) 

o.  Transfer  or  disposition  of  property. 

(See  also  same  heading  in  Digest  L.B.A. 
1-10.) 

Temporary  injunction,  see  infra,  4lS. 

Against  sale  of  property  under  deed  of  trust, 
see  CoMPKOMiSE  and  Settlement,  9. 

Against  threatened  fraudulent  conveyance, 
see  Fraudulent  Conveyances,  54,  55. 

Validity  of  transfer  of  property  in  viola- 
tion of  restraining  order,  see  Sale,  3. 

Cross-examination  of  defendant  in  suit  to 
enjoin  sale  of  property,  see  Witnesses, 
87. 

90.  Upon  the  institution  of  bankruptcy 
proceedings  against  the  maker  of  a  deed  of 
trust  to  secure  debts,  the  court  may  enjoin 
the  sale  of  the  property  under  the  terms  .of 
the  trust  deed,  for  the  purpose  of  conserving 
the  grantor's  equity  in  the  property  for  the 
benefit  of  his  unsecured  creditors.  Re  Jer- 
sey Island  Packing  Co.  2:  560,  138  Fed.  625, 
71  C.  C.  A.  75.  (Annotated) 

91.  A  court  of  equity  will  not  restrain  a 
sale  ur.der  power  of  sale  contained  in  a 
mortgage  because  the  statute  of  limitations 
has  run  against  an  action  to  foreclose  it. 
House  V.  Carr,  6:  510,  78  N.  E.  171,  185  N. 
Y.  453  (Annotated) 

92.  Injunction  may  issue  to  restrain  the 
transference  of  property  in  violation  of  a 
contract  to  convey  it  to  the  one  seeking 
the  injunction.  Wilkins  v.  Somerville, 
11:  1 183,  66  Atl.  8©3,  80  Vt.  48. 

93.  One  who  has  promised  to  convey 
property  to  another  in  consideration  of  the 
latter's  furnishing  him  a  home  during  his 
life  may  be  enjoined  from  conveying  the 
premises  to  another  and  interfering  with 
the  possession  of  the  other  contracting  par- 
ty so  long  as  the  latter  continues  to  per- 
form, or  is  ready  to  perform,  the  contract 
on  his  part.  Newman  v.  French,  18:  218, 
116  N.  W.  468,  138  Iowa,  482.       (Annotated) 

94.  A  statutory  interest  given  each 
spouse  in  the  other's  property  for  support 
is  of  itself  sufficient  to  vest  a  court  of 
equity  with  jurisdiction  fully  to  administer 
relief  to  the  indigent  spouse  as  against  the 
other;  and,  where  necessary  to  do  so,  to 
prevent  the  offending  husband  or  wife  from 
defeating  the  order  of  the  court  by  aliena- 
tion of  property,  a  lien  may  be  declared  on 
real  property,  and,  where  prayed  for  in  the 
complaint,  injunctional  relief  against  alien- 
ating or  encumbering  the  property,  real  or 
personal,  may  be  granted  and  enforced  by 
appropriate  order.  Hagert  v.  Hagert,  38: 
966,  133  N.  W.  1035,  22  N.  D.  290. 

95.  An  executor  may  enjoin  the  publica- 
tion or  multiplication  of  private  letters  of 
his  testator,  although  they  are  upon  com- 
monplace subjects  and  have  no  literary  mer- 
it, but  he  cannot  enjoin  the  mere  sale  or 
transfer  of  such  letters,  in  the  absence  of 
Bome  special  limitation  imposed  either  by 
Digest   1-52  L.R.A.(N.S.) 


the  subject-matter  of  the  letter,  or  the  cir- 
cumstances under  which  it  was  sent.  Baker 
v.  Libbie,  37:  944,  97  N.  E.  109,  210  Mass. 
599. 

96.  An  injunction  will  not  lie  to  prevent 
an  owner  of  a  city  residence  from  ad- 
vertising it  for  sale  to  negroes,  if  there  is 
a  bona  fide  intent  to  efl'ect  a  sale,  although 
he  has  the  further  motive  of  depreciating 
the  value  of  other  property  in  the  neighbor- 
hood, and  injuring  the  business  of  dealers 
in  real  estate  there.  Holbrook  v.  Morrison, 
44:  228,  100  N.  E.  1111,  214  Mass.  209. 

(Annotated) 

d.  Illegal  or  tortious  acts;  crimes. 

(See  also  same  heading  m»  Digest  L.R.A. 
1-10.) 

Temporary  injunction,  see  infra,  II. 
Multifariousness  of  bill  to  enjoin  omission 

of   name   from   business   directory,   see 

Action  oe  Suit,  127. 
Against  nuisance  generally,  see  Nltisances, 

Elnjoining  nuisance  which  is  punishable 
criminally,  see  Nuisances,  159-167. 

Against  bull  fighting,  see  Nuisances,  148. 

Who  may  maintain  action,  see  Pabties,  36, 
91,  104,  112,  113. 

See  also  supra,  41,  82. 

97.  The  discontinuance,  upon  suit 
brought,  of  the  sale  of  malt  liquor,  does 
not  prevent  an  entry  of  a  decree  of  final 
injunction  and  the  taxation  of  attorney's 
fees  against  the  defendant  if  he  litigated 
the  question  whether  or  not  he  had  a  right 
to  sell.  Sawyer  v.  Botti,  27:  1007,  124  N. 
W.  787,  147  Iowa,  453. 

98.  Placing  in  the  hands  of  retailers  an 
instrument  of  fraud  with  which  to  deceive 
the  public  is  sufficient  to  warrant  an  in- 
junction against  the  wholesaler,  although  he 
does  not  mislead,  or  intend  to  mislead,  the 
retailer  to  whom  he  sells.  George  G.  Fox 
Co.  V.  Glynn,  9:  1096,  78  N.  E.  89,  191  Mass. 
344.  (Annotated) 

99.  The  author  of  a  medical  text  book 
cannot  enjoin  the  publisher  from  distribut- 
ing copies  which  are  alleged  to  be  inferior 
to  those  called  for  by  the  contract,  on  the 
theory  that  his  professional  reputation  will 
be  thereby  injured,  unless  he  establishes 
that  such  injury  will  result.  Cleveland  v. 
Martin,  3:  629,  75  N.  E.  772,  218  111.  73. 

( Annotated ) 

100.  An  injunction  may  issue  to  restrain 
the  continued  publication  of  the  names  of 
the  signers  in  connection  with  a  petition 
after  the  signers  have  disowned  and  repu- 
diated it  as  having  been  signed  under  a 
misapprehension.  Schwartz  v.  Edrington, 
47:  921,  62  So.  660,  133  La.  235. 

102.  An  owner  of  cattle  who  merely  de- 
sires to  exercise  the  common  right  of  pas- 
turing them  on  public  land  suffers  no  such 
special  injury  by  the  wrongful  fencing  in 
of  such  land  by  a  private  citizen  as  will 
entitle  him  to  equitable  relief,  even  though 
his  land  is  in  close  proximity  to  the  land 


1500 


INJUNCTION,  I.  d. 


inclosed.  Anthony  Wilkinson  Live  Stock 
Co.  V.  Mclllquliam,  3:  733,  83  Pac.  364,  14 
Wyo.  209. 

103.  It  is  within  the  jurisdiction  of  a 
court  of  equity  to  enjoin  a  mother  and 
child  from  claiming  for  the  latter,  by  vir- 
tue of  a  false  certificate  of  birtli  filed  in 
the  bureau  of  vital  statistics,  the  status  of 
a  lawfully  begotten  child  of  the  complain- 
ant. Vanderbilt  v.  Mitchell  (N.  J.  Err.  & 
App.)  14:  304,  67  Atl.  97,  72  N.  J.  Eq.  910. 
Interference   ivitli  bridge. 

104.  Equity  will  grant  relief  in  an  action 
brought  by  a  village  to  enjoin  interference 
with  a  bridge  by  one  threatening  to  remove 
the  railing  of  the  bridge  for  the  purpose 
of  connecting  the  floor  of  the  structure  with 
the  platform  leading  to  a  building  which  he 
has  erected  for  saloon  purposes,  where  the 
complaint  alleges  the  corporate  capacity  of 
the  plaintiff,  and  that  the  defendant's 
threatened  acts  will  create  a  nuisance  and 
endanger  the  health  of  the  inhabitants  of 
the  village,  and  will  result  in  damage  to  the 
property  of  the  town,  or  may  be  the  means 
of  causes  of  action  for  damage  against  the 
village.  Sand  Point  v.  Doyle,  4:  810,  83 
Pac.  598,  11  Idaho,  642,  (Annotated) 
Interference    w^itli    business. 

105.  The  owner  of  a  cavern  which  consti- 
tutes a  natural  curiosity,  who  sells  colored 
views  of  it  as  souvenirs  and  for  advertising 
purposes,  cannot  enjoin  the  sale  by  an  as- 
signee of  the  photographer  of  colored  photo- 
graphs produced  from  plates  made  under 
permission  of  a  former  owner  of  the  cavern, 
although  the  coloring  on  them  is  incorrect, 
upon  the  ground  that  it  is  an  unlawful  in- 
terference with  the  business  of  the  owner. 
Luray  Caverns  Co.  v.  Kauflfman,  38:  1207, 
72  S.  E.  709,  112  Va.  725. 
Establishment  of  pestbonse. 

106.  The  establishment  by  a  city  under 
statutory  authority,  of  a  pesthouse  in  which 
to  care  for  smallpox  patients  during  a 
threatened  epidemic,  cannot  be  enjoined  at 
the  suit  of  one  occupying  nearby  premises 
where  the  city  authorities  acted  in  good 
faith  and  the  building  selected  belonged  to 
the  public  and  was  the  best  that  could  have 
been  obtained  both  as  regarded  the  purpose 
and  location.  Manhattan  v.  Hessin,  25: 
228,  105  Pac.  44,  81  Kan.  153.  (Annotated) 
Sending  person  to  pestbonse. 

107.  A  board  of  health  may  be  enjoined 
from  sending  to  the  pesthouse,  which  is  un- 
fit for  her  habitation  because  of  want  of 
water  supply  and  heating  arrangements  and 
the  proximity  of  the  city  dumping  ground, 
and  because  to  it  are  sent  persons  afflicted 
with  smallpox  and  other  loathsome  diseases, 
an  elderly  lady  of  refinement  who  has  a 
form  of  leprosy  which  is  very  slightly,  if  at 
all,  contagious,  and  who  has  mingled  for 
years  with  the  people  without  communicat- 
ing the  disease  to  anyone,  while  quarantine 
in  her  own  home  would  afford  complete 
protection  to  the  public  until  a  comfort- 
able place  could  be  arranged  for  her  else- 
where. Kirk  v.  Wyman,  23:  1188,  65  S.  E. 
3S7,  83  S.  C.  372.  (Annotated) 

108.  A  remedy  by  action  against  mem- 
Digest   1-^52  I,.R.A.(N.S.) 


bers  of  the  board  of  health  for  damages  for 
wrongfully  sending  one  to  the  pes'Uiouse, 
if  it  existed,  is  not  adequate  to  such  an 
extent  as  to  prevent  the  issuance  of  an 
injunction  against  such  act.  Kirk  v.  Wy- 
man, 23:  1 1 88,  65  S.  E.  887,  83  S.  C.  372. 
Overcharges    by   warehousemen. 

109.  Equity  has  no  jurisdiction  to  enjoin 
a  warehouse  affected  with  a  public  use.  from 
the  exaction  of  overcharges  from  persons 
who  must  of  necessity  patronize  it  because 
warehouse  facilities  are  necessary  to  their 
business  and  none  other  is  available,  since 
the  remedy  at  law  to  recover  the  overcharge 
in  an  action  for  money  had  and  received  is 
complete;  and  it  is  immaterial  that  the  bill 
alleges  that  the  charges  are  ruinous  to  com- 
plainants' business,  if  the  facts  stated  do 
not  warrant  that  conclusion.  Gulf  Com- 
press Co.  V.  Harris,  Cortner,  &  Co.  24:  399, 
48  So.  477,  158  Ala.  343. 

Placing  photograph  in  rogues'  gal> 
lery. 

110.  An  injunction  will  be  granted  to 
prevent  the  photograph  of  an  innocent  per- 
son from  being  sent  to  the  rogues'  gallery. 
Itzkovitch  V.  Whitaker,  i:  1147,  39  So.  499, 
115  La.  479. 

Preferential  privileges  to  hackman 
at   station. 

111.  Injunction  will  not  lie  to  prevent  a 
railroad  company  from  according  to  one 
hackman  preferential  privileges  at  its  sta- 
tion, in  the  absence  of  any  allegation  of  in- 
solvency of  the  corporation  or  other  equita- 
ble ground  for  relief,  since  the  remedy  at 
law  for  damages  is  adequate.  Cooper  v. 
Devall,  8:  1027,  98  S.  W.  976,  81  Ark.  314. 

( Annotated  > 
Cutting  telephone  w^ires. 

112.  A  telephone  company  whose  wires 
are  rightfully  strung  in  a  public  street  is 
entitled  to  an  injunction  against  their  being 
cut  by  one  desiring  to  move  a  building  along 
the  street.  Kibble  Teleph.  Co.  v.  Landphere, 
16:  689,  115  N.  W.  244,  151  Mich.  309. 
Desecration  of  burial  ground;  remov- 
al of  corpse. 

113.  Injunction  will  lie  to  prevent  dese- 
cration of  a  plat  of  land  dedicated  to  pub- 
lic use  for  burial  purposes  and  in  which 
bodies  lie  interred.  Roundtree  v.  Hutchin- 
son, 27:  875,  107  Pac.  345,  57  Wash.  414. 

114.  Kindred  of  the  dead  may  maintain 
a  suit  in  equity  to  enjoin  the  unlawful  re- 
moval of  the  remains  of  such  dead  from 
their  graves.  Ritter  v.  Couch,  42:  1216,  76 
S.  E.  428,  71  W.  Va.  221. 

Spite   fence. 

Pleading,  see  Pleading,  431. 

115.  Injunction  lies  against  the  mainte- 
nance of  a  spite  fence  erected  merely  to 
annoy  a  neighbor  and  injure  his  property. 
Norton  v.  Randolph,  40:  129,  58  So.  283,  176 
Ala.  381. 

Appropriation   of  trade  secrets. 

Exclusion  of  evidence  as  to  details  of  se- 
cret process  in  action  to  restrain  dis* 
closure  of  process,  see  Trial,  29..         ^^ 

See  also  supra,  77. 

116.  Discharged  employees  of  a  complain- 
ant corporation  which  is  engaged  in  detin- 


INJUNCTION,  I.  d. 


1501 


ning  tin  scrap  in  accordance  with  a  secret 
process,  will  be  enjoined,  on  the  ground  of 
inequitable  competition,  from  aiding  a  rival 
company  in  conducting  a  similar  industry 
by  the  use  of  the  process,  the  formula  of 
which  was  acquired  by  its  president  in  trust 
for  the  complainant,  but  was  disclosed  and 
used  by  him  in  breach  of  that  trust.  Vulcan 
Detinning  Co.  v:  American  Can  Co.  (N.  J. 
Err.  &  App.)  12:  102,  67  Atl.  339,  72  N.  J. 
Eq.   403.  (Annotated) 

117.  A  corporation  organized  for  the  de- 
tinning  of  tin  scrap,  and  which  emijloys  a 
secret  process  that  was  intrusted  to  its 
president  while  he  was  a  director  of  anoth- 
er company  engaged  in  the  same  industry, 
will  be  enjoined  from  further  use  of  the 
formula,  since  the  knowledge  of  its  president 
is  imputable  to  it.  Vulcan  Detinning  Co.  v. 
American  Can  Co.  (N.  J.  Err.  &  App.)  12: 
102,  67  Atl.  339,  72  N.  J.  Eq.  403. 

(Annotated) 

118.  A  quondam  director  of  a  corporation 
who  holds  in  individual  trust  for  it  a  copy 
of  the  formula  of  a  secret  process  which  it 
employs,  but  who,  in  violation  of  his  trust, 
with  the  assistance  of  discharged  employees, 
organizes  a  rival  company  and  employs  the 
process  in  the  conduct  of  its  busines  ,  will 
be  enjoined  from  further  inequitable  compe- 
tition, and  restrained  from  furtlier  publica- 
tion of  the  process,  at  the  suit  of  the  cor- 
poration, although  the  process  is  not  abso- 
lutely a  secret  one,  and  the  complainant  has 
not  acquired  a  title  to  it  that  is  good  as 
against  its  discoverer.  Vulcan  Detinning 
Co.  v.  American  Can  Co.  (N.  J.  Err.  &  App.) 
12:  102,  67  Atl.  339,  72  N.  J.  Eq.  403. 

(Annotated) 

119.  One  employed  by  an  optician  to  ex- 
amine the  eyes  of  patients  and  prescribe 
lenses  will,  after  leaving  his  employment, 
be  enjoined  from  making  use  of  names,  ad- 
dresses, and  prescriptions  which  he  copied 
from  his  employer's  records,  although  his 
contract  did  not  expressly  forbid  his  making 
use  of  such  knowledge,  and  the  information 
he  is  attempting  to  use  relates  exclusively 
to  persons  examined  by  him  and  the  records 
of  whose  cases  he  himself  made.  Stevens  & 
Co.  v.  Stiles,  20:  933,  71  Atl.  802,  29  R.  I. 
399.  (Annotated) 

120.  Injunction  lies  to  prevent  the  driver 
of  a  laundry  wagon  from  disclosing  to  a 
new  employer,  or  using  to  solicit  trade  for 
him,  a  list  of  names  of  customers  furnished 
him  when  he  entered  upon  his  former  em- 
ployment, although  the  list  had  been  add- 
ed to  by  his  own  efforts.  Empire  Steam 
Laundry  Co,  v.  Lozier,  44:  1159,  130  Pac. 
1180,  1G5  Cal.  95.  (Annotated) 

121.  A  solicitor  for  a  merchant,  who 
works  on  certain  routes,  selling  goods  to 
customers  on  a  commission,  may,  in  case 
he  appropriates  the  list  of  customers  up- 
on engaging  to  work  for  a  rival  merchant, 
be  compelled  to  return  the  list,  and  be  en- 
joined from  using  it  or  a  copy  of  it,  or 
showing  it  to  others.  Grand  Union  Tea 
Co.  v.  Dodds,  31:  260,  128  N.  W.  10!)0.  104 
Mich.  60.  (Annotated) 
Digest  1-52  L.R.A.(N.S.) 


Inducing  breach  of  contract. 

See  also  infra,  137-140,  142,  144-147,  334- 
336. 

122.  A  selling  agent  of  a  company  en- 
gaged in  the  manufacture  and  sale  of  maps, 
who  has  broken  his  contract  of  employment 
and  entered  the  services  of  a  rival  com- 
pany, may,  after  he  has  become  insolvent,  be 
enjoined  from  seeking  to  induce  other  em- 
ployees of  his  former  employer  to  breach 
their  contracts  of  employment  and  enter 
with  him  upon  the  service  of  the  other  com- 
pany. Kinney  v.  Scarbrough  Co.  40:  473, 
74  S.  E.  772,  138  Ga.  77. 
Conspiracy,       combinations,       strikes, 

boycott,  picketing,  etc. 

Contempt  in  violating  injunction  against, 
see  Contempt,  46-52. 

Punishment  for  contempt  in  violating  in- 
junction, see  Contempt,  108,  109. 

Original  jurisdiction  of  supreme  court,  see 
Courts,  222. 

Who  may  maintain  suit  for  injunction,  see 
Parties,   104. 

See  also  Case,  8. 

123.  Denial  of  the  equities  of  the  bill  will 
not  prevent  the  issuance  of  an  injunction  to 
restrain  the  consummation  of  a  conspiracy 
to  carry  an  election  by  fraud.  People  ex 
rel.  Miller  v.  Tool,  6:  822,  86  Pac.  224,  36 
Colo.  225. 

124.  A  combination  of  men  engaged  in 
various  lines  of  business  will  be  enjoined 
from  attempting  to  break  up  the  business  of 
one  selling  buggies  through  peddlers  within 
the  state,  by  following  the  peddlers,  intim- 
idating them,  and  interfering  with  negotia- 
tions with  prospective  customers,  even 
though  the  acts  are  generally  done  on  the 
public  highways.  Evenson  v.  Spaulding,  9: 
904,  150  Fed.  517,  82  C.  C.  A.  263. 

(Annotated) 

125.  One  injured  by  violation  of  the  Fed- 
eral anti-trust  act  is  not  entitled  to  in- 
junctive relief.  National  Fireproofing  Co. 
V.  Mason  Builders'  Asso.  26:  148,  169  Fed. 
259,  94  C.  C,  A.  535. 

126.  Injunction  will  lie  against  business 
men  who,  to  secure  a  monopoly,  induce,  by 
means  of  false  statements  and  threats,  one 
who  purports  to  publish,  for  the  benefit  of 
customers,  a  complete  list  of  all  reputable 
persons  in  the  city  engaged  in  a  certain 
business,  to  omit  from  his  publication  the 
name  of  a  reputable  business  rival.  Davis 
V.  New  England  R.  Pub.  Co.  25:  1024,  89 
N.  E.  565,  203  Mass.  470. 

127.  Injunction  will  lie  at  the  suit  of  a 
competitive  buyer  to  restrain  the  enforce- 
ment by  a  farmers'  association  organized 
to  establish  a  live  stock  market  at  a  cer- 
tain shipping  point  of  an  illegal  agreement 
by  which  the  members  agree  to  sell  their 
stock  to  the  association  under  a  penalty  in 
case  sales  are  made  to  other  persons. 
Reeves  v.  Decorah  Farmers'  Co-operative 
Soc.  44:  1 104,  140  N.  W.  844,  160  Iowa,  194. 

128.  A  corporation  formed  for  the  local 
compression  of  cotton,  which  undertakes, 
because  of  the  exigencies  of  its  financial 
situation,  to  lease  its  entire  propertj'  to 
another  compress  company  for  a  period  of 


1502 


INJUNCTION,  I.  d. 


years,  and  in  such  lease  agrees  not  to  en- 
gage in  the  business  of  compression  within 
50  miles  of  any  plant  operated  by  the  les- 
see company,  and  to  aid  the  latter  in  dis- 
couraging unreasonable  and  unnecessary 
competition,  will  be  perpetually  enjoined  ] 
from  executing  the  lease.  Anderson  v. 
Shawnee  Compress  Co.  15:  846,  87  Pac.  315, 
17  Okla.  231. 
—  combinations    of  xrorkmen;    strikes, 

etc. 
Against  attempt  of  labor  unions  to  main- 
tain  closed   shop,   see  Conspiracy,  47. 
Forbidding  injunction  against  intimidation 
by    labor    union,    see    Constitutional 
Law,  549. 
Interference  with  freedom  of  speech  by  in- 
junction   against    placing    of    name    in 
unfair   list   by   labor   union,    see   Con- 
stitutional Law,  754. 
Against  combination  of  workmen  to  with- 
draw   patronage    from    merchant,    see 
CONSPIBACY,    23. 

See  also  Associations,  6;  Conspiract,  55. 

129.  A  manufacturer  cannot  enjoin  a  la- 
bor union  from  removing  its  stamp  from  his 
shop  on  failure  to  renew  a  contract  for 
labor,  although  the  result  of  the  removal 
will  be  to  prevent  a  sale  of  his  product, 
and  the  failure  to  renew  the  contract  is  the 
result  of  a  conspiracy  between  the  union 
and  his  competitors  to  ruin  his  business. 
Saulsberry  v.  Coopers'  International  Union, 
39:  1203,  143  S.  W.  1018,  147  Ky.  170. 

130.  The  entry  of  a  business  agent  of  a 
labor  union  upon  an  employer's  property 
for  the  purpose  of  notifying  the  employees  to 
Btrike  is  not  a  ground  for  injunction 
against  the  union,  in  the  absence  of  a 
threatened  repetition  of  the  act.  J.  F.  Park- 
inson Co.  V.  Building  Trades  Council,  21: 
550,  98  Pac.  1027,  154  Cal.  581. 

^  131.  A  strike  to  compel  employers  to 
unionize  their  shop  will  be  enjoined  where 
the  object  is  not  to  secure  a  direct  bene- 
fit to  the  employees,  but  to  enable  the 
union  to  obtain  a  monopoly  of  the  labor 
market.  Folsom  v.  Lewis,  35:  787,  94  N. 
E.   316,   208   Mass.   336.  (Annotated) 

132.  An  employer  is  entitled  to  an  in- 
junction to  restrain  its  striking  workmen 
from  keeping  other  workmen  away  from 
his  plant  by  the  use  of  vile  and  abusive 
language,  threats  of  violence  and  assaults. 
Iron  Holders'  Union  No.  125  v.  AUis-Chal- 
mers  Co.  20:  315,  166  Fed.  45,  91  C.  C.  A. 
631. 

133.  Striking  employees  and  the  union  to 
which  they  belong,  and  which  is  aiding 
them,  may  be  enjoined  from  congregating 
about  the  entrance  to  the  place  of  business 
of  their  former  employer  and  endeavoring 
to  persuade  his  customers  to  withhold  their 
patronage  from  him.  Jensen  v.  Cooks'  & 
Waiters'  Union,  4:  302,  81  Pac.  1069,  39 
Wash.  531.  (Annotated) 

134.  Members  of  a  labor  union  may  be 
enjoined  from  combining  together  to  further 
a  strike  for  an  illegal  purpose  and  from 
doing  any  acts  whatever,  peaceful  or  other- 
wise, in  furtherance  thereof,  including  the 
payment  of  strike  benefits  or  putting  their 
Digest   1-52  L.R.A.(N.S.) 


employers  on  the  unfair  list.     Reynolds  v. 
Davis,  17:  162,  84  N.  E.  457,  198  Mass.  294. 

(Annotated) 

135.  Equity  may  enjoin  a  labor  union,  the 
members  of  which  are  on  a  strike,  from  pre- 
venting the  employment  of  other  pei'sons  in 
their  places  by  force,  threats,  intimidation, 
and  ;)icketing.  Franklin  Union  No.  4  v. 
People,  4:  looi,  77  N.  E.  176,  220  111.  355. 

136.  Injunction  will  lie  against  the  bear- 
ing of  a  placard  through  the  streets  an- 
nouncing the  pendency  of  a  strike  against 
a  business  man  long  after  the  strike  has 
ended  by  the  installation  of  a  new  set  of 
employees  and  the  old  ones  finding  other 
employment,  since  the  only  object  of  it 
must  be  to  injure  the  one  against  whom  the 
strike  was  declared.  M.  Steinert  &  Sons 
Co.  V.  Tagen,  32:  1013,  93  N.  E.  584,  207 
Mass.  394.  (Annotated) 
inducing    breack    of    contract    or 

refusal  to   accept   employment. 

137.  Injunction  will  not  be  granted 
against  a  labor  union  which  has  wrongfully 
sent  notices  to  patrons  of  a  concern  against 
which  a  strike  has  been  declared,  which  in- 
duce them  to  break  their  contracts  with 
it,  in  the  absence  of  anything  to  show  a 
threat  to  continue  the  wrongful  act.  J.  F. 
Parkinson  Co.  v.  Building  Trades  Council, 
21 :  550,  98  Pac.  1027,  154  Cal.  581. 

138.  Interfering  with  the  relation  be- 
tween eftiployers  and  employees,  by  induc- 
ing the  latter  to  break  contracts  for  future 
service,  may  be  enjoined.  Folsom  v.  Lew- 
is, 35:  787,  94  N.  E.  316,  208  Mass.  336. 

139.  Coercion  or  persuasion  in  order  to 
bring  about  breaches  of  contracts  of  personal 
service  existing  between  an  employer  and 
his  employees  by  certain  persons  having  full 
notice  of  the  existing  employment  may  be 
restrained  by  injunction.  George  Jonas 
Glass  Co.  V.  Glass  Bottle  Blowers'  Asso.  (N. 
J.  Err.  &  App.)  41:  445,  79  Atl.  262,  77  N. 
J.  Eq.  219. 

140.  Coercion  or  persuasion  by  persons 
having  knowledge  of  the  relation  of  master 
and  servant  existing  between  an  employer 
and  its  employees,  to  bring  about  a  termina- 
tion of  that  relation,  may  be  restrained  by 
injunction,  although  there  is  no  binding  con- 
tract of  service,  but  a  mere  service  at  will. 
George  Jonas  Glass  Co.  v.  Glass  Bottle 
Blowers'  Asso.  ( N.  J.  Err.  &  App. )  41 :  445, 
79  Atl,  262,  77  N.  J.  Eq.  219. 

141.  Equity  will  not  enjoin  employees 
who  have  quit  the  service  of  their  employer 
from  attempting,  by  proper  argument,  to 
persuade  others  from  taking  their  places,  so 
long  as  they  do  not  resort  to  force  or  in- 
timidation, or  obstruct  the  public  thorough- 
fares. Jones  V.  E.  Van  Winkle  Gin  &  Mach. 
Works,   17:  848,  62   S.  E.  236,   131  Ga.  336. 

142.  Striking  employees  cannot  be  en- 
joined from  using  persuasion  to  prevent 
other  workmen  from  taking  their  places,  or 
to  induce  those  who  have  done  so  without 
making  a  definite  contract  to  quit  work. 
Iron  Molders'  Union  No.  125  v.  Allis- 
Chalmers  Co.  20:  315,  166  Fed.  45,  91  C.  C. 
A,  631. 

143.  A  labor  union  the  members  of  which 


INJUNCTION,  I.  d. 


1503 


are  on  a  strike  cannot  be  enjoined  from  at- 
tempting to  persuade  by  argument  strike 
breakers  to  refvise  to  work  for  their  former 
employers,  and  to  join  the  union  with  its 
attendant  advantages  of  traveling  expenses 
and  strike  benefits.  Everett  Waddey  Co.  v. 
Richmond  Typographical  Union  No.  90.  5: 
792,  53  S.  E.  273,  105  Va.  188. 

144.  Striking  employees  may  be  enjoined 
from  using  persuasion  to  force  apprentices 
to  break  their  contracts  to  serve  for  definite 
times.  Iron  Holders'  Union  No.  125  v.  Al- 
lis-Chalmers  Co.  20:  315,  166  Fed.  45,  91  C. 
C.  A.  631. 

145.  Striking  employees  cannot  be  en- 
joined from  inducing  employees  in  factories 
by  which  their  former  employer  is  attempt- 
ing to  get  the  work  done  to  fill  his  contracts, 
to  refuse  to  work  on  it,  although  it  results 
in  the  owners  of  such  factories  breaking 
their  conlracts.  Iron  Holders'  Union  No. 
125  v.  Allis-Chalmers  Co.  20:  315,  166  Fed. 
45,  91  C.  C.  A.  631. 

146.  A  labor  union  conducting  a  strike 
to  force  a  particular  plant  to  unionize  may 
be  enjoined  from  paying  employees  or  can- 
didates for  employment  to  leave  the  serv- 
ice of  the  plant  or  to  refrain  from  enter- 
ing such  employment.  Tunstall  v.  Stearns 
Coal  Co.  41:  453,  192  Fed.  808,  113  C.  C.  A. 
132.  (Annotated) 

147.  An  injunction  may  be  issued  re- 
straining certain  persons  from  interfering, 
by  coercion  or  personal  molestation  and  an- 
noyance, to  prevent  persons,  not  as  yet  em- 
ployed, but  willing  to  take  employment  un- 
der the  complainant,  from  entering  such 
employment.  George  Jonas  Glass  Co.  v. 
Glass  Bottle  Blowers'  Asso.  (N.  J.  Err.  & 
App.)  41:  445,  79  Atl.  262,  77  N.  J.  Eq.  219. 
picketing. 

SuflSciency  of  bill  to  restrain  labor  union 
from  picketing  shops,  see  Pleading, 
24. 

See  also,  supra,   135. 

148.  Equity  may  prohibit  the  picketing  of 
premises  of  an  employer  against  whom  a 
strike  has  been  declared.  Re  Langell,  50: 
412,  144  N.  W.  841,  178  Hich.  305. 

( Annotated ) 

149.  An  injunction  may  be  issued  re- 
straining loitering  or  picketing  in  the 
streets  or  on  the  highways  of  public  places 
near  the  premises  of  the  complainant,  with 
intent  to  procure  the  personal  molestation 
and  annoyance  of  persons  employed  or  will- 
ing to  be  employed  by  such  complainant, 
and  with  a  view  to  cause  persons  so  em- 
ployed to  refrain  from  such  employment. 
George  Jonas  Glass  Co.  v.  Glass  Bottle 
Blowers'  Asso.  (N.  J.  Err.  &  App.)  41:  445, 
79  Atl.  262,  77  N.  J.  Eq.  219. 

150.  A  merchant  is  entitled  to  an  injunc- 
tion against  the  maintaining  in  front  of  his 
place  of  business  by  a  labor  union  of  pick- 
ets bearing  placards  which  tend  to  intimi- 
date his  employees,  patrons,  and  customers, 
with  intent  to  do  so,  for  the  purpose  of 
compelling  him  to  pay  the  prices  fixed  by 
the  union  to  his  union  employees.  Gold- 
berg, Bowen  &  Co.  v.  Stablemen'a  Onion, 
Digest  1-52  I^R.A.(N.S.) 


Local  No,  8,760,  8 :  460,  86  Pac.  806,  149  Cal. 
429. 

151.  Striking  employees  cannot  be  en- 
joined from  picketing  if  the  efforts  of  the 
pickets  are  limited  to  getting  into  commu- 
nication with  candidates  for  employment  for 
the  purpose  of  presenting  arguments  and 
appeals  to  their  free  judgments  to  per- 
suade them  not  to  supply  the  places  of  the 
strikers.  Iron  Holders'  Union  No.  125  v. 
Allis-Chalmers  Co.  20:  315,  166  Fed.  45  91 
C.  C.  A.  631. 

152.  Workmen  who  quit  the  service  of 
their  employer,  and,  as  a  means  of  inducing 
him  to  accede  to  their  demands,  establish 
pickets  at  or  near  the  approaches  to  his 
premises  for  the  purpose  of  dissuading  oth- 
ers from  remaining  in  or  entering  into  his 
employment,  will  be  enjoined,  together  with 
their  confederates,  from  maintaining  pa- 
trols, when  such  patrols  resort  to  intimida- 
tion or  any  manner  of  coercion  to  prevent 
others  from  entering  into  or  remaining  in 
the  service  of  their  late  employer,  to  the 
irreparable  damage  of  his  business.  Jones  v. 
E.  Van  Winkle  Gin  &  Hach.  Works,  17: 
848,  62  S.  E.  236,  131  Ga.  336. 

boycott. 

To  restrain  suspension  or  boycott  of  mem- 
bers of  labor  union  by  union,  see  Con- 
spiracy, 28. 

See  also  supra,  134,  137;  infra,  443. 

153.  Injunction  will  issue  to  restrain 
boycotting  by  threatening  to  injure  the  bus- 
iness of  any  corporation,  customer,  or  per- 
son dealing  or  transacting  business,  or  will- 
ing to  deal  and  transact  business,  with  the 
complainant,  so  as  to  prevent  the  transac- 
tion of  such  business.  George  Jonas  Glass 
Co.  v.  Glass  Bottle  Blowers'  Asso.  (N.  J. 
Err.  &  App.)  41:  445,  79  Atl.  262,  77  N.  J. 
Eq.  219. 

154.  A  court  of  equity  may  enjoin  the  con- 
tinuance of  a  boycott,  although  spoken 
words  or  written  matter  were  used  as  one 
of  the  instrumentalities  by  which  the  boy- 
cott was  made  effective.  Gompers  v.  Buck's 
Stove  &  Range  Co.  34:  874,  31  Sup.  Ct.  Rep. 
492,  221  U.  S.  418,  55  L.  ed.  797. 

155.  A  labor  union  may  be  enjoined  from 
putting  persons  on  the  "unfair  list"  if  its 
purpose  and  effect  are  to  establish  a  boy- 
cott against  them.  Hey  v.  Wilson,  16:  85, 
83  N.  E.  928,  232  111.  389. 

356.  Equity  will  not  enjoin  the  publica- 
tion by  a  labor  organization  of  a  circular 
declaring  a  merchant  to  be  unfair,  under 
constitutional  provisions  that  every  person 
shall  be  free  to  write  or  publish  whatever 
he  will  on  any  subject,  being  responsible 
for  all  abuse  of  that  liberty;  and  the  in- 
solvency of  the  defendant  is  immaterial. 
Lindsay  v.  Hontana  Federation  of  Labor, 
18:  707,  96   Pac.    127,  37   Hont.  264. 

157.  Labor  unions  will  not  be  enjoined 
from  sending  notices  to  patrons  of  a  concern 
against  which  a  strike  has  been  declared 
that  it  has  been  declared  to  be  unfair,  and 
that  union  men  will  not  handle  material 
supplied  by  it.  J.  F.  Parkinson  Co.  v. 
Building  Trades  Council,  21:  550,  98  Pac. 
1027,  154  Cal.  581. 


1504 


INJUNCTION,  I.  d. 


158.  The  executive  officers  of  the  Ameri- 
can Federation  of  Labor,  who  indorse  a 
local  boycott  and  place  the  name  of  the 
boycotted  concern  on  their  "We  Don't  Patro- 
nize" list,  knowing  that  the  result  will  be 
the  actual  maintenance  of  a  boycott  by  the 
members  of  the  union  throughout  the  coun- 
try, cannot  defeat  the  issuance  of  an  in- 
junction against  themselves  on  the  theory 
that  they  are  not  connected  with,  or  re- 
sponsible for,  the  acta  done  under  the  boy- 
cott. American  Federation  of  Labor  v. 
Buck's  Stove  &  Range  Co.  32:  748,  33  App. 
D.  C.  83. 

159.  The  publication  and  circulation  of  a 
newspaper  cannot  be  enjoined  merely  be- 
cause it  contains  the  "Unfair"  list  of  a 
labor  union,  which  is  published  in  further- 
ance of  a  boycott.  American  Federation 
of  Labor  v.  Buck's  Stove  &  Range  Co. 
32:  748,   33   App.    D.   C.   83. 

160.  A  labor  union  and  its  members  may 
be  enjoined  from  placing  the  name  of  a 
concern  on  its  "Unfair"  or  "We  Don't  Pat- 
ronize" list,  if  their  sole  intention  in  doing 
so  is,  and  the  result  will  be,  to  coerce  its 
customers  to  refrain  from  dealing  with  it, 
although  the  remote  object  sought  is  a 
benefit  to  its  own  members,  and  no  physi- 
cal coercion  is  practised.  American  Fed- 
eration of  Labor  v.  Buck's  Stove  &  Range 
Co.  32:  748,  33  App.  D.  C.  83. 

( Annotated ) 

161.  Injunction  will  lie  against  the  con- 
tinuation by  a  labor  union  of  a  boycott 
already  declared  against  a  particular  busi- 
ness, or  against  the  declaration  of  a  threat- 
ened boycott  against  such  business.  Lohse 
Patent  Door  Co.  v.  Fuelle,  22:  607,  114  S. 
W.  997,  215  Mo.  421. 

162.  Members  of  a  labor  union  may  be 
enjoined  from  refusing  to  handle  materials 
sold  by  one  who  furnishes  supplies  to  an 
employer  of  nonunion  labor,  if  they  have 
no  dispute  with  their  employers  who  pur- 
chase such  materials.  Burnham  v.  Dowd, 
51:  778,  104  N.  E.  841,  217  Mass.  351. 

( Annotated ) 
Acts  pnnisliable  as   misdemeanors   or 

felonies. 
Against    criminal    proceedings,    see    infra, 

298-309. 
Original  jurisdiction  of  supreme  court,  see 

Courts,  215. 
Validity   of   statute  permitting,   see   Ckim- 

INAL  Law,  180. 
Of  crime  as  infringement  of  right  to  jury 

trial,  see  Jury,  47,  50. 

163.  If  an  injunction  is  necessary  and 
proper  for  the  protection  of  public  rights, 
criminality  of  the  injurious  acts  does  not 
bar  the  remedy  in  equity.  State  v.  Ehrlick, 
23:  691,  24  S.  E.  935,  65  W.  Va.  700. 

164.  The  legislature  may  authorize  the 
issuance  of  injunctions  against  a  commis- 
sion of  crime.  Ex  parte  Allison,  3:622,  90 
S.  W.  492,  48  Tex.  Crim.  Rep.  634. 

165.  Courts  will  enjoin  the  commission 
of  a  crime  where  property  rights  are  in- 
volved. Ex  parte  Allison,  3:622,  90  S.  W. 
492,  48  Tex.  Crim.  Rep.  634.       (Annotated) 

166.  An  injunction  may  issue  in  a  proper 
Digest  1-52  I..R.A.(N.S.) 


case  to  restrain  persons  from  attempting, 
by  threats,  violence,  or  intimidation,  or  oth- 
er unlawful  means,  to  prevent  any  person 
from  engaging  in,  remaining  in,  or  perform- 
ing the  business,  labor,  or  duties  of  any 
lawful  enterprise  or  occupation,  although 
the  acts  sought  to  be  restrained,  if  com- 
mitted, constitute  a  crime.  Jones  v.  E.  Van 
Winkle  Gin  &  Mach.  Works,  17:  848,  02  S. 
E.  236,  131  Ga.  336. 

167.  A  court  of  equity  has  no  jurisdic- 
tion to  include  in  a  divorce  decree  an  in- 
junction against  remarriage  within  a  speci- 
fied time,  which  is  by  statute  made  a  penal 
oflTense,  so  that  violation  of  it  can  be  pun- 
ished as  a  contempt.  People  v.  Prouty,  51: 
1140,  104  N.  E.  387,  262  111.  218. 

168.  Injunction  lies  against  the  pollution 
of  a  stream  in  such  a  manner  as  to  con- 
stitute a  public  nuisance,  although  such 
pollution  is  by  statute  made  a  misdemeanor 
punishable  by  fine  or  imprisonment.  Com. 
V.  Kennedy,  47:673,  87  Atl.  605,  240  Pa. 
214.    .  (Annotated) 

169.  A  municipality  is  not  entitled  to  in- 
junctive relief  against  the  continuance  of 
a  moving  picture  show  therein,  the  propri- 
etor of  which  has  refused  to  pay  a  license 
fee  exacted  by  a  municipal  ordinance;  and 
this  rule  is  not  changed  by  tlie  fact  that 
the  official  before  whom  alone  prosecution 
against  the  proprietor  of  such  show  for  vio- 
lation of  the  ordinance  can  be  instituted 
has  declared  the  ordinance  void,  when  the 
supreme  court  in  the  action  in  wiiich  the 
injunctive  relief  is  sought  has  held  the  or- 
dinance valid.  Higgins  v.  Lacroix,  41:  737, 
137  N.  W.  417,  119  Minn.  145. 

170.  Equity  has  no  jurisdiction  to  pre- 
vent a  carrier  from  transporting  intoxicat- 
ing liquor  into  prohibition  territory,  and 
delivering  it  there  to  consignees,  although 
such  act  may  aid  in  the  violation  of  the 
criminal  laws  of  the  state.  United  States 
Express  Co.  v.  State  ex  rel.  McDonald,  35: 
879,  139  S.  W.  637,  99  Ark.  633. 

171.  A  court  of  equity  has  jurisdiction  to 
enjoin  the  violation  by  a  railroad  corpora- 
tion of  an  act  which  forbids  intoxication 
and  the  drinking  of  intoxicating  liquors 
upon  railroad  trains.  State  v.  Chicago,  B. 
&  Q.  R.  Co.  34:  250,  130  N.  W.  295,  88  Neb. 
669. 

172.  Where  a  statute  prohibiting  the  es- 
tablishment of  asylums  or  retreats  for  the 
care  of  the  insane  or  persons  of  unsound 
mind  for  compensation  and  hire,  without 
first  obtaining  a  license  from  the  state  board 
of  charities,  is  continuously  violated  by  re- 
ceiving, keeping,  maintaining;,  and  caring 
for  persons  of  the  classes  named  in  an  un- 
licensed asylum  or  retreat,  thereby  causing 
fear,  consternation,  and  disturbance  of  the 
peace  in  the  community,  an  injunction  may 
properly  be  granted  to  restrain  such  unlaw- 
ful acts,  and  the  court  is  not  restricted  to 
a  prohibition  of  disturbances  of  the  peace. 
State  ex  rel.  Jackson  v.  Lindsay,  35:  810, 
116  Pac.  207,  85  Kan.  79. 

Slander  or  libel. 

173.  Injunction  will  not  lie  against  the 
expression  of  opinion  which,  at  the  worst. 


INJUNCTION, -I.  e. 


1505 


•would  constitute  only  a  slander.  Goldberg, 
Bowen  &  Co.  v.  Stablemen's  Union,  Local 
No.  8,700,  8:  460,  86  Pac.  806,  149  Cal.  429. 

174.  A  court  of  equity  may  enjoin  the 
use,  as  evidence,  of  a  certificate  of  birth 
filed  in  the  bureau  of  vital  statistics,  and 
which  falsely  ascribes  to  complainant  the 
paternity  of  the  child.  Vanderbilt  v.  Mitch- 
ell (N.  J.  Err.  &  App.)  14:304.  67  Atl. 
97,  72  N.  J.  Eq.  910. 

e.  Talcing  of,  injury  to,  or  trespass  up- 
on, real  property. 

(See  also  same  heading  in  Digest  L.R.A. 
1-1  O.J 

Effect  of  dispute  as  to  title,  see  supra,  25. 

As  to  contract  or  covenant  relating  to  real 
property,  see  supra,  79-89. 

Against  erecting  fences,  see  Fences,  1. 

Against  nuisan;_e,  see  Nuisance,  II. 

Right  of  contingent  remaindermen  to  en- 
join waste  by  life  tenant,  see  Parties, 
11. 

See  also  supra,  35,  41,  113,  114;  infra,  313. 

175.  Injunction  will  lie  to  restrain  the 
continuous  casting  of  debris  upon  com- 
plainant's property  by  blasting,  although 
negligence  alleged  in  the  bill  is  not  sus- 
tained by  the  proof.  Central  Iron  &  Coal 
Co.  V.  Vanderheurk,  6:  570,  41  So.  145,  147 
Ala.  546.  (Annotated) 

176.  After  the  revocation  of  a  log  owner's 
license  permitting  him  to  use  the  banks  to 
aid  in  floating  logs  on  a  stream,  a  property 
owner  is  entitled  to  an  injunction  against 
future  use  of  the  banks  for  that  purpose. 
Mitchell  V.  Lea  Lumber  Co.  9:  goo,  86  Pac. 
405,  43  Wash.  195. 

177.  An  heir  will  be  enjoined  from  in- 
terfering with  the  use  of  land  dedicated  by 
his  ancestor  for  the  purpose  of  a  cemetery. 
Wormley  v.  Wormley,  3:  481,  69  N.  E.  865. 
207   111.  411.  (Annotated) 

178.  A  bill  to  enjoin  interference  with 
an  alleged  easement  to  maintain  pipes  on  a 
boundary  line  will  not  lie  in  the  absence  of 
anything  to  show  why  complainant  could 
not  place  them  on  his  own  property  and 
recover  his  damages  at  law.  Cay  nor  v. 
Bauer,  3:  1082,  39  So.  749,   144  Ala.  448. 

179.  Injunction  will  lie  against  the  erec- 
tion of  a  levee  by  an  improvement  district 
to  protect  a  tract  of  land  from  the  flood 
waters  of  a  river  in  such  a  manner  as  to 
cast  the  water  upon  the  opposite  shore  to 
the  injury  of  land  there  located,  if  tlie 
statute  providing  for  the  organization  of 
the  district  relieves  it  from  liability  for  in- 
juries occasioned  by  the  construction  of  its 
works.  Ft.  Worth  Improv.  Dist.  No.  1  v. 
Ft.  Worth,  48:  994,  158  S.  W.  164,  —  Tex. 

Against  obstruction   of  way. 

180.  Injunction  is  a  proper  remedy  to 
prevent  the  maintenance  of  a  wrongful  ob- 
struction of  a  piivate  way.  Flahertj'  v. 
Fleming,  3:  461,  52  S.  E.  857,  58  W.  Va.  609. 

181.  injunction  will  lie  against  the  ob- 
struction of  a  passageway  in  such  a  manner 
Digest  1-52  I,.R.A.(N.S.) 


as  to  destroy  it  by  adverse  user,  although 
substantial  damage  has  not  yet  been  caused 
by  the  obstruction.     Danielson  v.  Sykes,  28: 
1024,  109  Pac.  87,  157  Cal.  686. 
Taking  for  public  nse. 

182.  Injunction  lies  to  prevent  the  taking 
of  private  property  for  public  use  without 
compensation  contrary  to  tlie  constitutional 
mandate,  regardless  of  any  question  of  dam- 
ages, as  a  question  of  right,  and  not  of  dam- 
ages, is  raised  in  such  a  proceeding.  Lovett 
v.  West  Virginia  C.  Gas  Co.  24:  230,  65  S. 
E.  196,  05  W.  Va.  739. 

183.  Injunction  lies  acrainst  a  county 
court  to  prevent  it  from  taking  private 
property  for  a  public  road  without  having 
paid,  or  secured  payment  of,  compensation 
therefor.  Clavton  v.  Gilmer  County  Court, 
2:  598,  52  S.  E.  103,  58  W.  Va.  253. 

1S4.  Injunction  will  lie  to  prevent  the 
construction  of  a  commercial  railway  in  a 
public  street  the  fee  of  which  is  in  the  abut- 
ting owner,  until  compensation  is  made,  as 
required  by  the  Constitution.  McCamnion 
&  L.  Lumber  Co.  v.  Trinity  &  B.  V.  R.  Co. 
36:  562,  133  S.  W.  247,  104  Tex.  8. 
'.'■'respass. 

Reversible    error    in    refusing    to    continue 
temporary  injunction  to  restrain  tres- 
pass, see  Appeal  and  Errob,  635a. 
Jurisdiction   to  restrain   trespass   on  lands 

in  other  state,  see  Courts,  39. 
Retention  of  jurisdiction,  see  Equity,  108. 
Necessity    of    showing    irreparable    injury, 

see  Evidence,  641. 
EfTect  of  demurrer  to  bill  for,  see  Plead- 
ing, 645. 
See  also  supra,  36,  37,  42,  50. 

185.  Failure  to  raise  objection  to  the 
granting  of  an  injunction  against  a  trespass 
because  of  adequacy  of  remedy  at  law  will 
waive  it.  McCloskey  v.  Pacific  Coast  Co. 
22:  673,  160  Fed.  794,  87  C.  C.  A.  568. 

180.  To  prevent  a  multiplicity  of  suits  in- 
junction will  lie  against  repeated  trespasses 
on  real  estate  by  the  same  individual,  where 
plaintiff's  title  is  admitted,  and  defendant 
has  repeatedly  trespassed  upon  the  proper- 
ty and  intends  to  continue  to  do  so,  using 
the  property  as  his  own,  although  compen- 
sation for  the  trespasses  might  have  been 
secured  in  actions  at  law,  if  the  recoveries 
would  be  so  small  as  to  be  disproportionate 
to  the  expense  and  vexation  attending  the 
litigation.  Cragg  v.  Levinson,  21:417,  87 
N.   E.   121,  238  ill.  69.  (Annotated) 

187.  A  court  of  equity  will  enjoin  re- 
peated acts  of  trespass,  such  as  the  forcible 
entry  of  a  dwelling  house  by  breaking  or 
removing  locks  from  the  doors,  the  forcible 
removal  of  fastenings  from  gates,  and  as- 
saults upon  those  in  possession,  although  it 
is  not  shown  that  the  trespassers  are  insol- 
vent. Hornung  v.  Herring,  13:  182,  104  N. 
W.  1071,  74  Neb.  637. 

188.  Injunction  will  lie  to  prevent  entry 
on  land  to  lay  water  mains  in  excess  of  the 
rights  of  the  one  attempting  to  do  so. 
VVinslow  v.  Vallejo,  5:  851,  84  Pac.  191,  148 
Cal.  723. 

189.  Equity   will    take   jurisdiction    of   a, 
95 


1506 


INJUNCTION,  I.  e. 


suit  to  restrain  repeated  acts  of  trespass 
upon  plaintiff's  dooryard  for  the  purpose  of 
erecting  and  maintaining  a  fence  there,  un- 
der its  power  to  prevent  a  multiplicity  of 
inadequate  actions  at  law  for  the  trespass. 
Miller  v.  Hoeschler,  7:  49,  99  N.  W.  228,  121 
Wis.  558.  (Annotated) 

191.  Injunction  will  lie  to  restrain  threat- 
ened and  imminent  repeated  trespasses  on 
property  fitted  for  and  in  use  as  a  summer 
residence,  which  are  alleged  to  be  of  such  a 
character  as  to  render  the  premises  unfit 
and  useless  for  the  purpose  for  which  they 
are  designed.  De  Pauw  v.  Oxley,  13:  173, 
100  N.  W.  1028,  122  Wis.  656.     (Annotated) 

192.  Injunction  will  not  lie  to  restrain 
the  owner  of  vacant  property  from  per- 
mitting it  to  be  used  as  a  playground  mere- 
ly because  persons  using  it  bat  balls  onto 
adjoining  property  and  commit  trespasses 
in  reclaiming  them.  Spiker  v.  Eikenberry, 
11:  463,  110  N.  W.  457,  135  Iowa,  79. 

(Annotated) 

193.  A  preliminary  injunction  may  issue 
in  favor  of  one  claiming  a  right  to  the  wa- 
ters of  a  bay  and  the  adjoining  marsh  and 
upland  as  a  game  preserve,  to  prevent  con- 
certed action  on  the  part  of  the  neighboring 
populace  in  breaking  down  the  fences,  over- 
running the  preserve,  and  shooting  the 
game.  Bolsa  Land  Co.  v.  Burdick,  12:  275, 
90  Pac.  532,  151  Cal.  254. 

194.  Injunction  is  the  proper  remedy  as 
against  an  employee  whose  right  to  occupy 
a  house  upon  his  employer's  premises  has 
been  terminated  by  a  lawful  discharge, 
where  the  employee  continues  to  remain  on 
the  premises,  is  insolvent,  and  the  damages 
are  of  such  a  character  as  not  to  be  capable 
of  computation  or  of  being  satisfied  by  an 
ordinary  suit  at  law.  Mackenzie  v.  Minis, 
23:  1003,  63  S.  E.  900,  132  Ga.  323. 

195.  Equity  will,  at  the  suit  of  the  trus- 
tees of  a  church,  enjoin  strangers  from  tres- 
passing upon  the  property,  changing  the 
locks  upon  the  doors,  and  interfering  with 
the  trustees'  control  of  the  property,  and 
of  the  public  worship  of  God  in  the  build- 
ing. Christian  Church  v.  Somnier,  8:  1031, 
43  So.  8,  149  Ala.  145. 

196.  Equity  may  entertain  a  suit  to  en- 
join continued  trespass  upon  complainant's 
property  by  domestic  fowls  belonging  to  de- 
fendant, to  prevent  multiplicitv  of  suits,  al- 
though defendant  is  not  insolvent.  Keil  v. 
Wright,  13:  184,  112  N.  W.  033,  135  Iowa, 
383. 

197.  Where  the  rule  of  the  common  law 
requiring  the  owner  of  domestic  animals  to 
restrain  them  upon  his  own  premises  has 
been  held  inapplicable,  injunction  will  not, 
in  the  absence  of  statute  requiring  a  con- 
trary conclusion,  lie  to  compel  the  owner 
of  fowls  in  a  rural  community  to  prevent 
their  trespassing  upon  his  neighbor's  prop- 
erty. Kimple  v.  Schacfer,  48:  179,  143  N. 
W.  505,  161  Iowa,  659.  (Annotated) 
Waste. 

Waste  of  water,  see  infra,  233,  234. 
See  also  infra,  206. 

198.  A  court  of  equity  will  restrain  the 
committing  of  waste  threatened  by  a  ten- 
Digest  1-52  I..R.A.(N.S.) 


ant  for  years  and  his  agents  or  employees. 
Hayman  v.  Rownd,  45:  623,  118  N.  W.  328, 
82  Neb.  598. 

199.  A  contingent  remainderman  may 
maintain  a  bill  against  the  life  tenant  to 
enjoin  future  waste.  Ohio  Oil  Co.  v. 
Daughetee,  36:  1108,  88  N.  E.  818,  240  111. 
361. 

Erection  of  building. 

Against  violation  of  building  restrictions 
in  covenant,  see  Covenants  and  Con- 
ditions, 45,  46. 

Pleading  in  suit  for  injunction  against 
spite  fence,  see  Pleading,  431. 

See  also  supra,  44,  115. 

200.  The  owner  of  the  fee  of  a  right  of 
way  will  not  be  enjoined  from  extending  a 
projection  from  his  building  partially  across 
it  if  it  will  not  interfere  with  any  use  which 
the  owner  of  the  easement  can  reasonably 
be  expected  to  have  occasion  to  make  of  it. 
Bitello  V.  Lipson,  16:  193,  69  Atl.  21,  80 
Conn.  497. 

Extraction  of  gas,  petrolenm,  or  other 
minerals. 

201.  Injunction  will  lie  to  restrain  a  lessee 
from  continuing  to  mine  ores  on  leased 
property  after  a  forfeiture  of  the  lease  for 
breach  of  conditions  as  to  manner  of  per- 
forming the  work,  although  the  title  is  dis- 
puted, and  no  action  has  been  instituted  at 
law;  since  a  continuation  of  the  alleged 
wrongful  acts  will  tend  to  destroy  the  prop- 
erty. Big  Six  Development  Co.  v.  Mitch- 
ell, i:  332,  70  C.  C.  A.  569,  138  Fed.  279. 

(Annotated) 

202.  An  injunction  against  the  pumping 
of  oil  and  gas  wells  will  not  be  awarded  in 
favor  of  the  owner  of  neighboring  wells,  if 
the  latter  has  been  guilty  of  similar  acts, 
even  though  in  a  lesser  degree.  Ilo  Oil  Co. 
v.  Indiana  Natural  Gas  &  Oil  Co.  30:  1057, 
92  N.  E.  1,  174  Ind.  635.  (Annotated) 
Removal  of  surface   support. 

203.  Removal  of  surface  support  by  the 
mining  of  coal  will  not  be  enjoined  merely 
because  springs  have  been  interfered  wntli, 
if  the  springs  are  not  shown  to  have  been  af- 
fected by  failure  to  furnish  the  support. 
Berkey  v.  Berwind-White  Coal  Min.  Co. 
16:  851,  69  Atl.  329,  220  Pa.  65.  (Annotated) 

204.  The  owner  of  the  surface  will  not  be 
granted  an  injunction  against  the  removal 
of  the  underlying  coal  by  one  having  the 
full  legal  right  to  do  so  merely  because 
subsidence  or  breaking  of  the  surface  is 
reasonably  to  be  anticipated  therefrom,  if 
no  buildings  will  be  injured  or  otlier  ir- 
reparable injury  done.  Berkey  v.  Berwind- 
White  Coal  Min.  Co.  16:  851,  69  Atl.  329, 
220  Pa.  65.  (Annotated) 
Removal   of   fixtures. 

205.  Injunction  will  lie  to  prevent  the 
wrongful  removal  of  a  fixture  from  the 
realty,  by  one  who  clai.ns  to  have  purchased 
it  as  personalty.  State  Security  Bank  v. 
Hoskins,  8:  376,  106  N.  W.  764,  130  Iowa, 
339. 

206.  In  Georgia  an  injunction  may  issue' 
to  prevent  the  commission  of  waste  by  re-rC' 
moving  fixtures,  although  the  acts  if  com-" 
mitted,  might   not  be   irreparable   in  d»n^jg 


INJUNCTION,  I.  f. 


1507 


ages,  and  the  party  threatening  to  commit 
them  may  be  solvent;  but  the  rule  is  other- 
wise as  to  a  mere  trespass.  Brigham  v. 
Overstreet,  lo:  452,  57  S.  E.  484,  128"Ga.  447. 

207.  To  sustain  an  injunction  against  the 
removal  from  real  estate  by  a  sheriff,  of 
a  building  claimed  by  a  third  person,  com- 
plainant must  show  absence  of  adequate 
remedy  at  law,  such  as  inadequacy  of  dam- 
ages, insolvency  of  the  sheriff,  or  insuffi- 
ciency of  his  bond.  Eisenhauer  v.  Quinn, 
14:  435,  93  Pac.  38,  36  Mont.  368. 

Injury  to  trees. 

Reversible  error  in  refusing  to  continue 
temporary  injunction  against  cutting  of 
trees,  see  Appeal  and  Error,  635a. 

208.  An  injunction  will  not  be  granted  at 
the  instance  of  an  abutting  owner  to  re- 
strain a  telephone  company  from  cutting 
trees  and  shrubs  along  a  public  highway  in 
the  erection  of  its  poles  and  wires,  since  the 
remedy  at  law  is  adequate.  Hobbs  v.  Long 
Distance  Teleph.  &  Teleg.  Co.  7:87,  41  So. 
1003,    147    Ala.    393. 

Cutting  timber. 

209.  To  obtain  an  injunction  to  prevent 
the  removal  of  standing  timber  from  real 
estate,  it  is  not  necessary  to  show  in- 
solvency of  the  trespasser,  nor  other  cir- 
cumstances showing  the  inavailability  of 
the  action  at  law,  since  the  protection  of 
the  timber  is  a  ground  for  equitable  inter- 
ference, Pardee  v.  Camden  Lumber  Co. 
43:262,  73  S.  E.  82,  70  W.  Va.  68. 

210.  When  the  title  to  land  is  in  dis- 
pute, and  an  action  of  ejectment  has  been, 
or  is  about  to  be,  instituted  by  the  claim- 
ant out  of  possession,  he  may  enjoin  the 
other  from  cutting  timber  on  the  land,  pend- 
ing  the   determination   of   the   question    of 

•  title  in  the  law  court.  Pardee  v.  Camden 
Lumber  Co.  43:  262,  73  S.  E.  82,  70  W.  Va. 
68.  (Annotated) 

211.  In  the  exercise  of  its  jurisdiction  to 
remove  cloud  upon  title  to  land  and  quiet 
title,  equity  may  enjoin  the  cutting  of  tim- 
ber by  the  claimant  under  the  bad  title. 
Whitehouse  v.  Jones,  12:  49,  55  S.  E.  730, 
60  W.  Va.  680. 

212.  An  injunction  will  not  lie  in  West 
Virginia  to  restrain  the  taking  of  timber, 
unless  some  further  fact,  such  as  insolvency 
of  the  trespasser,  be  shown  rendering  the 
remedy  at  law  inadequate.  Stephenson  y. 
Burdette,  10:  748,  48  S.  E.  846,  56  W.  Va. 
109. 

213.  Declarations  and  conduct  in  the  na- 
ture of  admissions  as  to  the  location  of  a 
disputed  boundary  line  are  not  sufficient  to 
authorize  an  injunction  restraining  the 
taking  of  timber  beyond  such  line,  since 
they  are  only  matters  of  evidence  avail- 
able at  law.  Stephenson  v.  Burdette, 
10:  743,  48  S.  E.  846,  56  W.  Va.  109. 

/.   Water  rights. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Asking  an  appellate  court  for  relief  not 
Digest   1-52   L.R.A.(N.S.) 


demanded  at  trial,  see  Appeal  and 
Error,    802. 

Conditions  precedent  to  suit  against  coun- 
ties, see  Counties,  19. 

Estoppel  to  maintain,  see  Estoppel,  160, 
161. 

Against  interference  with  use  by  railway 
company  of  water  of  pond,  see  Estop- 
pel,  171. 

Against  digging  of  well  in  street  by  munici- 
pality to  tap  vein  of  mineral  water  on 
adjoining  property,  see  Highways,  18. 

Bar  to  suit  by  riparian  owner  to  enjoin 
interference  with  access  to  water,  see 
Judgment,  79. 

Who  may  enjoin  placing  of  structures  on 
tide  lands,  see  Nuisances,  99. 

See  also  infra,  425. 

214.  The  exclusion  of  a  riparian  owner 
from  the  shore  of  navigable  water  is  suffi- 
cient to  entitle  him  to  maintain  a  bill  for 
injunction  against  one  having  the  legal  title 
in  trust  for  the  public,  to  establish  his 
rights.  Mobile  Transp.  Co.  v.  Mobile,  13: 
352,  44  So.  976,  153  Ala.  409. 

215.  A  decree  perpetually  enjoining  an  ir- 
rigation canal  company  from  preventing  the 
flow  of  water  through  its  canals  upon  the 
lands  of  an  appropriator  of  water,  subject 
to  the  payment  of  the  company's  reasonable 
charges,  and  to  its  reasonable  regulations, 
should  also  make  such  water  service  subject 
to  the  prior  rights  of  any  prior  appropri- 
ators  served  by  the  company.  Salt  River 
Valley  Canal  Co.  v.  Nelssen,  12:  711,  85  Pac. 
117,  10  Ariz.  9. 

216.  Injunction  will  lie  against  continued 
interference  with  a  ditch  maintained  by  an 
abutting  owner  in  a  highway  to  carry  water 
to  his  property  for  irrigation  purposes, 
which  prevents  cultivation  of  crops,  and 
results  in  irremediable  injury.  Holm  v. 
Montgomery,  34:  506,  113  Pac.  1115,  62 
Wash.   398. 

217.  A  riparian  owner  maintaining  a 
dam  across  a  floatable  stream  is  entitled  to 
an  injunction  against  the  operation  of 
splash  dams  by  an  upper  riparian  owner  in 
such  manner  as  to  interfere  materially  with 
the  continuity  of  his  power,  and  to  All  his 
pond  and  race  with  dirt  and  d4bris.  Trul- 
linger  v.  Howe,  22:  545,  97  Pac.  548,  99  Pac. 
880,  53  Or.  219. 

218.  A  riparian  owner  who  has  planted 
oysters  in  the  tidal  water  adjoining  his 
land  under  license  from  the  state  may  en- 
join other  riparian  owners  from  sailing 
across  his  beds  in  going  to  and  from  their 
own.  where  sufh  nets  would  do  liim  irreriara,- 
ble  injury,  and  there  is  a  marked  channel 
which  is  adequate  for  the  purpose,  by  the 
usj  of  which  no  injury  would  be  done.  Cain 
V.  Simonson,  3:  205,  39  So.  571,  —  Ala.  — . 

(Annotated) 
Shutting    o*P   water    supply. 

219.  A  water  board  will  be  enjoined,  on 
^he  ground  of  irreparable  injury,  from  en- 
forcing an  unreasonable  and  discriminatory 
water  rate  by  severing  the  connection  be- 
tween the   water   mains  and  an  automatic 


1508 


INJUNCTION,  I.  f. 


sprinkling   system   installed   in   a   building. 
Gordon   v.   Doran,   8:  1049,   HI   N.  W.   272, 
100  Minn.  343. 
Surface  neater. 

220.  A  village  which  has  no  sewer  system 
may  enjoin  a  lot  owner  from  interfering 
with  an  immemorial  flow  of  surface  water 
across  his  property  from  its  street,  where 
the  amount  or  character  of  the  flow  ha.s 
not  been  increased.  Trenton  v.  Rucker, 
34:  569,  127  N.  W.  39,  162  Mich.  19. 
Pollution. 

Parties    defendant    in    suit    to    enjoin,    see 

Parties,  195. 
See  also  Nuisances,  139;  Waters,  224. 

221.  Whether  or  not  an  injunction  will  be 
granted  in  case  of  the  deposit  of  refuse  salt 
by  a  mining  company  upon  its  own  land 
in  such  a  manner  as  to  pollute  the  perco- 
lating water  and  springs  upon  his  neighbor's 
land  depends  upon  the  equities  of  the  case 
in  view  of  the  practical  consequences  of  the 
wrong  and  the  means  available  for  its  cor- 
rection. Gilmore  v.  Roval  Salt  Co.  34:  48, 
115  Pac.  541,  84  Kai..  729. 

222.  The  magnitude  of  the  business  of 
one  polluting  a  water  course  is  no  excuse 
for  the  denial  of  an  injunction  to  prevent 
such  pollution.  Parker  v.  American  Wool- 
en Co.  10:  584,  81  N.  E.  468,  195  Mass.  591. 

223.  Thnt  other  causes  have  contributed 
to  the  pollution  of  a  stream  will  not  defeat 
the  issuance  of  an  injunction  against  one 
responsible  for  its  pollution.  Parker  v. 
American  Woolen  Co.  10:  584,  81  N.  E.  468, 
195  Mass.  591. 

224.  A  lower  riparian  owner  is  entitled 
to  an  injunction  against  the  pollution  of 
the  stream  by  an  upper  owner  to  prevent 
the  acquisition  of  a  ])re3criptivp  right,  al- 
though the  pollution  does  not  interfere  wit!) 
his  present  use  of  the  water.  Parker  v. 
American  Woolen  Co.  10:  584,  81  N.  E.  468. 
195  Mass.  591. 

225.  The  mere  fact  that  the  water  supply 
of  a  municipality  is  conveyed  through  a 
ditch  nmning  across  the  land  of  another 
does  not  of  itself  entitle  the  municipality 
to  maintain  an  action  to  perpetually  enjoin 
the  landowner  from  allowing  his  cattle  to 
feed  and  graze  in  the  field  along  the  banks 
of  the  ditch,  and  to  wade  through  its 
waters.  Bellevue  v.  Daly,  15:  992,  94  Pac. 
1036,  14  Idaho,  545. 

226.  A  mill  owner  may  be  enjoined  from 
discharging  into  a  stream  oils,  chemicals, 
and  dyestufTs  in  such  quantities  as  to  pol- 
lute the  water  to  such  an  extent  that  the 
cattle  of  a  lower  riparian  proprietor  refuse 
to  drink  it,  to  the  substantial  loss  and  dam 
age  of  such  proprietor.  Macnaraara  v.  Taft, 
13:  1044,  83  N.  E.  310,  196  Mass.  597. 

227.  Injunction  will  not  lie  to  restrain 
the  casting  of  mine  water  into  a  stream  to' 
the  injury  of  lower  riparian  land,  where  the 
land  is  not  injured  except  when  the  water 
is  turned  out  of  its  course  by  the  complain-* 
ant,  or  the  channel  is  permitted  by  him  to 
fill  up  so  as  to  cause  the  water  to  spread 
over  the  adjoining  land.  Glenn  v.  Crescent 
Coal  Co.  37':  197,  140  S.  W.  43,  145  Ky    137. 

228.  A  mimicipal  corporation  may  be  en- 
Digest   1-52  L.R.A.(N.S.) 


joined  from  emptying  a  drain  which  col- 
lects surface  water  from  the  streets  and 
sink  drainage  from  houses,  into  a  dry  gully 
bordering  on  the  property  of  a  citizen, 
where  it  creates  an  otiensive  odor  and  per- 
colates to  some  extent  into  his  well  and 
pollutes  the  water  therein ;  and  the  fact 
that  the  water  in  the  well  was  polluted 
to  some  extent  from  other  sources  is  im- 
material. Ulmen  v.  Mt.  Angel,  36:  140, 
112  Pac.  529,  57  Or.  547. 
Diversion;  ivaste. 
To    prevent    diversion    in    other    state    of 

waters  of  stream,  see  Courts,  22. 
Estoppel  to  enjoin  diversion,  see  Estoppel, 

159. 
Sufficiency  of  findings  to  support  judgment, 

see  Judgment,  41. 
Venue  of  action  for,  see  Venue,  9. 
Against    waste    of    percolating    water,    see 

Waters,  289. 

229.  That  land  overlying  a  saturated 
stratum  of  gravel  which  supplies  it  with 
water  for  purposes  of  irrigation  is  not 
riparian  to  a  stream  from  which  the  water 
is  supplied  does  nut  prevent  its  owner  from 
maintaining  an  action  to  enjoin  au  appro- 
priator  from  withdrawing  the  water  from 
the  stream  for  commercial  purposes  so  as 
to  cut  off  the  supply  of  such  stratum. 
Miller  v.  Bay  Cities  Water  Co.  27:  772,  107 
Pac.  115,  157  Cal.  256. 

230.  A  riparian  proprietor  cannot  enjoin 
a  reasonable  use  of  the  water  of  a  river  by 
an  upper  proprietor  for  purposes  of  irriga- 
tion, although  the  eff"ect  of  such  use  will 
be  to  prevent  the  water  from  spreading  over 
his  property  in  times  of  flood,  carrying  fer- 
tilizing material  and  moistening  the  land, 
making  it  more  productive,  as  it  has  been 
wont  to  do.  Turner  v.  James  Canal  Co. 
22:  401,  99  Pac.  520,  155  Cal.  82. 

231.  A  riparian  owner  is  entitled  to  en- 
join the  diversion  of  flood  waters  of  a  river 
which  annually  flow  over  his  land,  bearing 
fertilizing  material,  and  irrigating  it  suffi- 
ciently to  make  it  productive,  whereas, 
should  the  flow  cease,  the  land  would  be- 
come arid  and  greatly  depreciated  in  value. 
Miller  &  Lux  v.  Madera  Canal  &  Irrig.  Co. 
22:  391,  99  Pac.  502,  155  Cal.  59. 

(Annotated) 
■  232.  Injunction  will  lie  to  compel  the  re- 
moval of  a  jetty  placed  in  a  stream  in  such 
a  manner  as  to  deflect  the  current  to  the  in- 
jury of  a  lower  riparian  owner  by  depriving 
him  of  the  natural  flow  of  the  stream  and 
washing  away  his  bank  by  casting  the  wa- 
ter directly  against  it.  Morton  v.  Oregon 
Short  Line  R.  Co.  7:  344,  87  Pac,  151,  48  Or. 
444. 

233.  That  one  has  marketed  water  na- 
turally flowing  from  springs  on  his  land, 
does  not  deprive  him  of  the  right  to  equita- 
ble relief  against  the  forcible  pumping  of 
the  water  from  the  common  reservoir,  and 
letting  it  go  to  waste,  for  the  purpose  of 
securing  for  sale  a  gas  connected  therev/ith. 
Hathom  v.  Natural  Carbonic  Gas  Co.  23: 
436,  87  N.  E.  504,  194  N.  Y.  326. 

234.  A  landowner  who  has  tapped,  by 
wells  located  on  his  land,  a  reservoir  of  min- 


INJUNCTION,  I.  g— i. 


1509 


eral  water  extending  under  a  large  area, 
will  be  enjoined  from  drawing  it  by  meana 
of  pumps  or  other  apparatus  for  the  purpose 
of  securing  for  the  market  a  supply  of  gas 
arising  from  the  water,  thereby  wasting 
great  quantities  of  the  water,  and  destroy- 
ing or  impairing  its  flow  from  springs  lo- 
cated on  the  lands  of  others,  and  destroy- 
ing or  impairing  the  valuable  character  of 
the  water  for  purposes  for  which  it  had 
been  habitually  used.  ITathorn  v.  Natural 
Carbonic  (.'as  Co.  23  :  436,  87  N.  E.  504,  194 
N.  Y.  326. 
Obstrnction. 
^         As  a  nuisance,  see  Nuisances,  101-111. 

235.  To  be  entitled  to  a  decree  enjoining 
the  maintenance  of  an  obstruction  in  a  navi- 
gable water  by  the  fact  that  it  impedes  ac- 
cess to  plaintiff's  property,  he  must  fully 
convince  the  court  of  that  fact.  Whitmore 
V.  Brown,  9:  868,  65  Atl.  516,  102  Me.  47. 

236.  An  injunction  should  not  be  granted 
to  prevent  the  location  of  a  railroad  bridge 
at  a  certain  point  where  the  evidence  is 
conflicting  as  to  the  injury  which  will  be 
done  therefrom  and  the  possibility  of  locat- 
ing it  elsewhere,  while  the  suit  was  not 
brought  until  the  work  of  construction  had 
been  begun  and  considerable  money  expend- 
ed in  the  work.  Pedrick  v.  Raleigh  &  P. 
S.  R.  Co.  10:  554,  55  S.  E.  877,  143  N.  C. 
485. 

237.  That  the  right  of  navigation  in  a 
canal  is  of  little  value  to  the  public  com- 
pared to  the  great  value  to  a  municipality 
of  an  obstruction  which  it  desires  to  place 
across  it  will  not  prevent  equity  from  en- 

.  joining  the  obstruction  at  the  suit  of  the 
state.  State  ex  rel.  Lyon  v.  Columbia  Wa- 
ter Power  Co.  22:  435,  63  S.  E.  884,  82  S.  C. 
181. 

238.  One  who  received  a  grant  of  a  public 
navigable  canal  upon  condition  that  it  be 
kept  open  cannot  defeat  an  injunction 
against  its  obstruction  on  the  grovmd  that 
the  necessity  for  its  navigation  has  ceased. 
State  ex  rel.  Lyon  v.  Columbia  Water  Pow- 
er Co.  22:  435,  63  S.  E.  884,  82  S.  C.  181. 

239.  An  injunction  will  lie  to  restrain  the 
landowners  on  one  side  of  a  stream  from 
maintaining  a  levee  upon  the  bank  thereof, 
causing  the  flood  waters  of  the  stream  to 
overflow  unnaturally  the  land  of  others  on 
the  opposite  side  of  the  stream,  without  re- 
gard to  the  ability  of  the  landowners  who 
constructed  the  embankment  to  respond  in 
damages,  since  a  single  action  at  law  would 
not  furnish  an  adequate  remedy  to  the  land- 
owners whose  lands  are  subject  to  recurring 
injuries  from  the  recurring  diversion  of  the 
overflow  waters,  caused  by  the  embankment. 
Jefferson  v.  Hicks,  24:  214,  102  Pac.  79,  23 
Okla.  684. 

g.    As    to    corporate    matters;    associa- 

tfons. 
(Bee   also   same   heading  in  Digest   L.R.A. 
1-10.) 

Against  ultra  vires  act  of  corporation,  see 

Corporations,  269. 
Digest  1-52  L.R.A.(N.S.) 


Jurisdiction  to  enjoin  members  of  board  of 
directors  of  foreign  corporation,  see 
Courts,  43. 

Retaining  jurisdiction  on  refusal  of  injunc- 
tion, see  Equity,  119. 

Against  enforcement  of  gas  rates,  see  Gas, 
14. 

See  also  Associations,  6,  6. 

240.  After  a  foreign  corporation  has  com- 
plied with  the  law,  and  has  received  permis- 
sion to  do  business  in  the  state,  it  cannot 
be  enjoined,  at  the  suit  of  the  state,  from 
performing  contracts  made  before  such  per- 
mission was  obtained.  State  v.  American 
Book   Co.   i:  1041,  76   Pac.  411,  69  Kan.   1. 

241.  The  courts  will  not,  at  the  instance 
of  a  minority  stockholder  of  a  corporation, 
restrain  the  majority  from  proceeding  to  dis- 
solve the  corporation,  although  it  is  solvent, 
if  because  of  business  conditions  it  has 
ceased  to  operate  its  plant,  and  there  is  no 
capital  ready  and  available  to  resume  opera- 
tions should  such  course  be  determined  up- 
on; while  the  attitude  of  the  parties  towards 
each  other  does  not  give  promise  of  mutual 
co-operation  and  eventual  success.  White 
V.  Kincaid,  23:  1177,  63  S.  E.  109,  149  N.  C. 
415. 

7i.  As  to  office;  elections. 

(See  also  same  heading  in  Digest  LM.A. 
1-10.) 

ISlections. 

Jurisdiction  to  issue  injunction,  see  Courts, 

80,  222. 
Who  may  bring  suit  to  enjoin  election,  see 

Parties,  126. 

242.  A  court  of  equity  has  no  jurisdiction 
to  restrain  the  holding  of  an  election,  since 
the  right  involved  is  a  political  one.  City 
Council  of  the  City  of  McAlester  v.  Mill- 
wee,  40:  576,  122  Pac.   173,  31  Okla.  620. 

(Annotated) 

243.  There  is  no  right  on  the  part  of  vot- 
ers and  tax  payers  to  injunctive  relief 
against  the  use  of  voting  machines  at  elec- 
tions, and  therefore  the  court  has  no  juris- 
diction of  suits  seeking  such  relief.  United 
States  Standard  Voting  Mach.  Co.  v.  Hob- 
son,  7:  512,  109  N.  W.  458,  132  Iowa,  38. 
Title  to   office. 

Temporary  injunction,  see  infra,  414. 

244.  Quo  warranto,  and  not  injunction,  is 
the  proper  remedy  for  an  illegal  holding  of 
a  public  office.  School  Dist.  No.  116  v.  VVolf, 
20:  358,  98  Pac.  237,  78  Kan.  805. 

245.  In  an  action  by  one  in  possession 
of  an  ofllce  to  prevent  an  adverse  laimant, 
or  those  acting  in  his  support,  from  gain- 
ing possession  by  violence,  it  is  competent 
to  determine  whether  such  person  is,  de 
facto,  the  officer  he  claims  to  be.  Ekern 
V.  McHovern,  46:  796,  142  N.  W.  595,  154 
Wis.  157. 

i.  Against  legal  proceedings. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 


1510 


INJUNCTION,  I.  i. 


Bar  to  right  to  injunction,  see  Action  or 

Suit,  96. 
Dismissal  on  appeal  of  bill  for,  see  Appeal 

AND  Errob,  1628. 
Right   of    minority    atocklioldera    to    enjoin 

prosecution    of    suit    by    directors,    see 

Corporation,  273. 
Conflict  of  jurisdiction  as  to,  see  Courts, 

IV.  b. 
To    restrain    corporation    from    putting    in 

force  confiscatory  rates,  see  Courts,  250. 
In   order   to   prevent   multiplicity   of  suits, 

see  Equity,  64,  96,  99,  105. 
To   restrain    suit   on   insurance   policy,   see 

Equity,  86. 
Infringement  of  right  to  trial  by  jury,  see 

Jury,  48. 
Sufficiency  of  allegations,  see  Pleading,  390. 

246.  Equity  has  no  jurisdiction  to  enjoin 
a  justice  of  the  peace  from  acting  in  an  ac- 
tion before  him,  because  of  his  interest  in 
the  result.  National  Tube  Co.  v.  Smith, 
i:  195,  50  S.  E.  717,  57  W.  Va.  210. 

247.  A  court  of  equity  will  not  entertain 
jurisdiction  to  enjoin  the  owner  of  personal 
property  from  asserting  his  title  by  appro- 
priate remedy  at  law  to  recover  the  prop- 
erty, as  against  one  who  is  seeking  to  sub- 
ject it  to  a  mechanics'  lien  for  labor  per- 
formed and  material  furnished  to  repair  the 
property,  at  the  instance  of  the  vendee,  who 
had  not  paid  the  purchase  price  thereof, 
and  where  the  vendor  had  retained  the  title 
to  the  property,  and  the  contract  of  sale 
was  duly  recorded,  although  the  vendor  knew 
of  the  labor  performed  and  the  repairs  be- 
ing made  on  the  property,  and  that  the 
vendee  was  insolvent.  Baughman  Automo- 
bile Co.  V.  Emanuel,  38:  97,  73  S.  E.  511, 
137   Ga.  354. 

248.  Equity  has  no  jurisdiction,  in  order 
to  prevent  a  multiplicity  of  suits,  to  enjoin 
the  prosecution  of  a  large  number  of  ac- 
tions by  different  persons  under  an  em- 
ployer's liability  act,  against  a  common 
employer,  to  recover  damages  for  wrongful 
deaths  caused  by  the  same  accident  in  the 
employer's  plant,  and  determine  the  ques- 
tion of  liability  itself.  Southern  Steel  Co. 
v.  Hopkins,  40:  464,  57  So.  11,  174  Ala.  465. 

( Annotated ) 

249.  A  corporation  having  a  perfect  de- 
fense applicable  alike  to  more  than  one  hun- 
dred cases  brought  against  it  by  em- 
ployees injured  by  an  accident  in  its  works 
may,  to  avoid  a  multiplicity  of  suits,  main- 
tain a  bill  to  enjoin  prosecutions  of  the 
actions  at  law  until  the  defense  can  be 
established.  Southern  Steel  Co.  v.  Hopkins, 
20:  848,  47  So.  274,  157  Ala.  175. 

( Annotated ) 

250.  Equity  may  enjoin  the  maintenance 
by  many  hundreds  of  employees  of  separate 
actions  in  a  nisi  prius  court  against  a  rail- 
road company  for  failure  to  deliver  cars  to 
their  employer,  which  deprived  them  of 
stated  work,  for  sums  so  low  as  not  to  ad- 
mit of  appeal  from  the  judgment,  if  the 
claims  had  no  foundation  in  law,  and  re- 
quire the  entire  controversy  to  be  settled 
Digest   1-52  I<.R.A.(N.S.) 


in  one  action.     Illinois  C.  R.  Co.  v.  Baker. 
49:  496,  159  S.  W.  1169,  155  Ky.  512. 

(Annotated) 

251.  Equity  will  entertain  a  suit  to  enjoin 
the  prosecution  of  a  great  number  of  ac- 
tions against  a  railroad  company  for  penal- 
ties for  refusal  to  comply  with  the  statu- 
tory requirements  as  to  stop-over  tickets 
which  defendants  have  confederated  to  cre- 
ate and  prosecute,  and  will  consolidate  the 
actions  and  dispose  of  the  litigation.  South- 
ern P.  Co.  V.  Robinson,  12:  497,  04  Pac.  572, 
132  Cal.  408. 

252.  A  factory  owner  cannot  maintain 
a  bill  in  equity  to  enjoin  several  actions  at 
law  by  neighboring  property  owners  to  re- 
cover damages  for  injuries  to  their  property 
by  noxious  fumes  emitted  from  his  factory 
by  requesting  that  the  court  determine 
whether  or  not  the  factory  is  a  nuisance, 
and  abate  it  if  it  is  found  to  be  such.  Roa- 
noke Guano  Co.  v.  Saunders,  35:  491,  56 
So.  198,  173  Ala.  347. 

253.  The  fact  that  a  person  is  sued  or  gar- 
nished by  different  persons  on  distinct  and 
separate  demands  having  no  connection,  or 
the  fact  that  the  same  question  of  law  may 
arise  in  all  the  cases,  does  not  give  equity 
jurisdiction  to  enjoin  the  suits  on  the 
principle  that  equity  takes  jurisdiction  to 
avoid  multiplicity  of  suits.  National  Tube 
Co.  V.  Smith,  i:  195,  50  S.  E.  717,  57  W.  Va. 
210. 

254.  A  patentee  will  not  be  enjoined  from 
prosecuting  a  suit  for  infringement  against 
a  retailer,  and  commencing  other  suits 
against  other  retailers,  by  the  fact  that  he 
has  sued  the  manufacturing  infringer  for 
infringement,  taken  his  testimony,  and  then 
threatened  the  manufacturer's  customers 
with  infringement  suits.  Kryptok  Co.  v. 
Stead  Lens  Co.  39:  i,  190  Fed.  767,  111  C- 
C.  A.  495. 

Snits  in  other  state. 

255.  Equity  has  power  to  restrain  a  party 
within  its  jurisdiction  from  prosecuting  u 
suit  in  tlie  courts  of  another  state,  and  in 
a  proper  case  will  not  hesitate  to  exercise 
the  power.  Mason  v.  Harlow,  33:  234,  114 
Pac.  218,  84  Kan.  277. 

256.  Courts  will  not  enjoin  a  suit  in  an- 
other state  merely  on  the  ground  of  con- 
venience of  parties,  but  will  do  so  when 
such  restraint  is  necessary  to  prevent  one 
citizen  from  doing  an  inequitable  thing,  as 
where  the  action  has  been  brought  malicious- 
ly, in  order  to  vex  and  harass  another  citi- 
zen, or  to  interfere  with  or  prevent  the  free 
administration  of  justice  in  a  suit  pending 
in  their  own  state.  Mason  v.  Harlow, 
33:  234,  114  Pac.  218,  84  Kan.  277. 

257.  A  citizen  of  a  state  will  be  enjoined 
by  its  courts  from  instituting  a  suit  in  an- 
other state  against  another  citizen,  both  par* 
ties  at  all  times  residing  within  the  state, 
upon  a  cause  of  action  which  has  been  ad* 
judicated  by  such  courts  and  arose  within 
its  jurisdiction,  the  necessary  witnesses  be- 
ing all  there,  and  the  foreign  suit  being  in- 
stituted for  the  purpose  of  harassing  and; 
annoying  the  other  party,  and  the  plaintifif, 


INJUNCTION,  I.  i. 


1311 


being  insolvent.     O'Haire  v.  Burns,  25:  267, 
101   Pac.   755,  45  Colo.  432.        (Annotated) 

258.  Equity  will  enjoin  the  prosecution 
by  a  resident  of  the  state,  of  an  action 
against  an  attorney,  also  resident  there,  in 
the  courts  of  another  state,  for  an  alleged 
libel  in  a  letter  of  instructions  sent  to  an 
attorney  in  the  latter  state  after  the  tak- 
ing of  depositions  for  use  in  a  pending  suit, 
which  action  is  not  brought  in  good  faith, 
but  to  prevent  defendant  from  properly  dis- 
charging his  duties  to  his  client  in  the  cause 
in  which  the  depositions  were  taken.  Mason 
V.  Harlow,  33:  234,  114  Pac.  218,  84  Kan, 
277. 

259.  The  fact  that  the  defendant  in  an 
equitable  action  in  one  state  proctired  an- 
other to  be  made  a  party  and  asked  for  and 
obtained  from  the  court  a  protective  bond 
from  the  complainant,  together  with  the 
fact  that  the  contract  involved  in  the  suit 
was  to  be  performed  in  the  sta^^e  in  which 
the  equitable  suit  was  brought,  and  that  the 
witnesses  by  whom  the  breach  of  the  con- 
tract and  other  relevant  issues  may  be  es- 
tablished are  more  accessible  in  that  state, 
are  not  sufficient  to  authorize  an  injunc- 
tion against  a  subsequent  action  at  law  in 
another  state  by  the  defendant  against  the 
complainant,  for  damages  arising  out  of  the 
same  contract.  Ambursen  Hydra.ulic  Constr. 
Co.  v.  Northern  Contracting  Co.  47:  684,  78 
S.  E.  340,  140  Ga.  1. 

260.  The  pendency  in  equity  of  the  same 
cause  of  action  between  the  same  parties 
will  not  authorize  an  injunction  against  a 
subsequent  action  at  law  in  another  state 
by  the  defendant  against  the  plaintiff,  un- 
less it  appears  that  the  prosecution  of  the 
second  suit  will  be  inequitable  and  unjust. 
Ambursen  Hydraulic  Constr.  Co.  v.  North- 
ern Contracting  Co.  47:  684,  78  S.  E.  340, 
140  Ga.  1. 

261.  The  mere  bringing  of  a  suit  and  at- 
tachment of  property  in  another  state,  by 
a  citizen  of  one  state  against  anotiier  citi- 
zen of  the  same  state,  to  recover  damages 
for  a  tort  committed  in  the  state  of  their 
residence,  is  not  such  annoyance  or  har- 
assment as  will  warrant  an  injunction 
against  its  maintenance.  Jones  v.  Hughes, 
42:  502,  137  N.  W.  1023,  156  Iowa,  684. 
Set-off  as  ground  for  injunction. 

202.  A  demand  for  unliquidated  damages 
for  breach  of  a  covenant  of  warranty,  in 
favor  of  the  owner  of  land  subject  to  a  deed 
of  trust,  is  not  a  ground  for  enjoining  a 
sale  of  the  land  to  pay  the  debt  secured  by 
such  deed  of  trust.  Shrader  v.  Gardner, 
40:  1 145,  74  S.  E.  990,  70  W.  Va.  780. 
Defenses  available  in  action  at  latv. 
See  also  supra,  40;  Courts,  283. 

263.  One  claiming  title  to  the  funds  col- 
lected under  an  assigned  judgment  can- 
not, after  receiving  them,  enjoin  a  suit  at 
law  by  the  assignee  of  the  judgment  against 
the  attorney  making  the  collection,  to  re- 
cover the  proceeds  of  the  judgment,  since 
the  latter  has  an  adequate  remedy  at  law, 
Moss  Mercantile  Co.  v.  First  Nat.  Bank, 
2:  657,  82  Pac.  8,  47  Or.  361. 
Bigest   1-52  I..R.A.(N.S.) 


264.  One  receiving  from  a  man  and  wife 
separate  deeds  to  property  upon  which  no 
homestead  was  claimed  has  the  legal  title, 
which  he  can  defend  in  an  action  of  eject- 
ment, and  therefore  equity  has  no  jurisdic- 
tion of  a  suit  on  his  behalf  to  restrain  the 
prosecution  of  such  action.  Lott  v.  Lott, 
8:  748,  109  N.  W.  1126,  146  Mich.  580. 
Action  on  insurance  policy  or  benefit 

certificate. 

265.  Equity  has  no  jurisdiction  on  the 
ground  of  the  necessity  of  an  accounting, 
of  a  suit  by  several  insurers  having  policies 
on  the  same  property,  each  of  which  pro- 
vides for  a  liability  proportional  to  the 
loss,  to  enjoin  the  injured  from  proceeding 
at  law  upon  the  policies,  and  to  ascertain 
the  amount  of  loss  and  fix  the  sum  which 
each  complainant  should  contribute  there- 
to, althougli  if  the  actions  were  tried  sepa- 
rately by  different  juries  the  amount  of  losa 
might  be  fixed  differently  so  that  some  poli- 
cies would  have  to  pay  a  greater  propor- 
tion of  their  face  value  than  others.  Me- 
chanics' Ins.  Co.  v.  C.  A.  Hoover  Distill- 
ing Co.  32:  940,  173  Fed.  888,  97  C.  C.  A, 
400. 

266.  One  of  several  companies  which  have 
issued  policies  of  insurance  on  the  same 
property,  each  of  which  provides  that  no 
insurer  shall  be  liable  for  a  greater  pro- 
portion of  a  loss  than  that  which  tiie 
amount  of  its  policy  bears  to  the  whole 
insurance,  cannot  maintain  a  suit  in  equity 
to  ascertain  the  amount  of  a  loss,  and  ap- 
portion it  between  the  insurers,  and  enjoin 
separate  actions  at  law  on  the  policies. 
Scruggs  &  Echols  v.  American  Central  Ins. 
Co.  36:  92,  176  Fed.  224,  100  C.  C.  A.   142. 

267.  Equity  will  not,  under  its  power  to 
cancel  instruments  on  the  ground  of  fraud, 
enjoin  proceedings  at  law  on  a  mutual -ben- 
efit certificate  which  the  insurer  claims  to 
have  been  secured  through  fraud  in  the  ap- 
plication, since  the  defense  of  fraud  is  fully 
available  as  a  defense  at  law.  Woelfle  v. 
The  Sailors,  12:  881^,  102  S.  W.  1109,  118 
Tenn.  755.  (Annotated) 
Action    to    collect    purchase    price    of 

land. 

268.  Collection  of  the  purchase  price  of 
land  the  title  to  which  has  failed  may  be 
enjoined,  irrespective  of  the  insolvency  of 
the  vendor.  Harvey  v.  Ryan,  7:  445,  53  S.  E. 
7,  59  W.  Va.  134. 

269.  Equity  will  enjoin  the  collection  of 
the  purchase  price  of  land,  when  the  vendee 
is  in  possession  under  a  conveyance  with 
covenants  of  general  warranty,  and  the  title 
is  clearly  shown  to  be  defective,  or  is  ques- 
tioned by  suit  prosecuted  or  threatened. 
Harvey  v.  Eyan,  7:  445,  53  S.  E.  7,  59  W.  Va, 
134.  (Annotated) 

270.  That  an  action  of  ejectment  was 
pending  against  a  grantor  of  land  at  the 
time  he  conveyed  it  with  covenants  of  gener- 
al warranty  of  title  will  not  preclude  the 
grantee  from  enjoining  the  collection  of  the 
purchase  money  after  the  grantor  has  been 
defeated  in  the  ejectment  suit.  Harvey  v. 
Rj^an,  7:  445,  53  S.  E.  ?,  59  W.  Va.  134. 

271.  The  enforcement  of  a  bond  given  for 


1512 


INJUNCTION,  I.  i. 


the  purchase  price  of  land  will  be  enjoined, 
where  the  vendee,  who  entered  into  pos- 
session under  a  conveyance  with  covenants 
of  general  warranty,  has  been  evicted  in  an 
action  of  ejectment  brought  by  a  stranger. 
Harvey  v.  Ryan,  7:  445,  53  S.  E.  7,  59  W. 
Va.  134. 

272.  Equity  is  not  deprived  of  jurisdiction 
to  restrain  the  enforcement  of  a  bond  given 
for  the  purchase  price  of  land  the  title  to 
which  has  failed,  by  a  statute  permitting  de- 
fenses of  failure  of  consideration,  fraud  in 
the  procurement  of  a  contract,  or  breach  of 
warranty  of  title,  to  be  interposed  in  an  ac- 
tion at  law  on  a  sealed  instrument,  when  the 
statute  further  provides  that  the  party  may, 
at  his  election,  avail  himself  of  his  remedy 
in  equity.  Harvey  v.  Ryan,  7:  445,  53  S.  E. 
7,  59  W.  Va.  134. 

Foreclosure  of  mortgage. 

273.  A  foreclosure  by  advertisement  of 
mortgaged  real  estate  may  be  temporarily 
enjoined  where,  from  the  conflicting  afli- 
davits,  it  may  properly  be  found  that  tlie 
true  indebtedness  covered  by  the  mortgage 
is  substantially  less  than  the  amouiir 
claimed  in  the  foreclosure  notice.  Ekeberg 
V.  Mackay,  35:  909,  131  N.  W.  787,  114  Minn. 
501. 

274.  A  substantial  overstatement  of  'the 
mortgage  debt  in  a  notice  of  sale  given  in 
a  foreclosure  by  advertisement  is  sufficient 
ground  for  temporarily  enjoining  the  snle, 
Ekeberg  v.  Mackay,  35:  909,  131  N.  W.  787, 
114  Minn.  501.  (Annotated) 
Exercise  of  power  of  sale  under  mort- 
gage. 

275.  Equity  has  jurisdiction  of  a  suit  to 
enjoin  the  seizure  of  property  under  a  chat- 
tel mortgage  representing  part  of  the  pur- 
chase price  of  property  sale  of  v/hich  was 
secured  by  fraud,  the  damages  for  which  ex- 
ceed the  face  of  the  mortgage,  although  the 
fraud  would  be  a  defense  to  a  proceeding 
at  law  to  recover  the  indebtedness  secured 
by  the  mortgage;  and,  to  afford  full  relief, 
may  decree  a  cancelation  of  the  mortgage. 
Smith  V.  Werkheiser,^  15:  1092,  115  N.  W. 
964,  152  Mich.  177. 

Judgmients. 

Until  claim  against  judgment  creditor  can 
be  established  so  as  to  give  right  to 
set-off,  see  Set-Off  and  Counterclaim, 
41. 

Conflict  of  jurisdiction  as  to,  see  Courts, 
IV.  b. 

Relief  against  judgment  generally,  see  Judg- 
ment, VII. 

276.  Equity  has  no  jurisdiction  to  inter- 
fere with  a  judgment  of  a  court  of  law  ex- 
cept where  some  well-defined  independent 
equitable  ground  exists  for  restraining 
the  enforcement  thereof.  Clark  v.  Board  of 
Education  (N.  J.  Err.  &  App.)  25:  827,  74 
Atl.  319,  76  N.  J.  Eq.  326. 

277.  Equity  has  no  jurisdiction  to  re- 
strain the  enforcement  of  a  judgment  of  a 
court  of  law,  where  the  case  is  one  within 
the  jurisdiction  of  that  court  and  no  inde- 
pendent equity  is  shown  except  that  the 
unsuccessful  litigant^  therein  has  appealed 
and  is  unable  to  obtain  from  any  law  court 
Digest  1-52  I..R.A.(N.S.) 


a  stay  pending  such  appeal,  although  fur- 
ther proceedings  under  the  judgmeiit  may 
result  in  such  a  change  in  tlie  status  of  the 
subject-matter  of  the  controversy  as  may 
make  nugatory  the  judgment  of  the  court  of 
review  wiien  pronounced.  Clark  v.  Board 
of  Education  (N.  J.  Err.  &  App.)  25:  827, 
74  Atl.  319,  76  N.  J.  Eq.  326.       (Aimotated) 

278.  Where  peculiar  equities  intervene 
between  the  parties,  a  court  of  equity  may 
enjoin  the  collection  of  a  judgment  until 
the  debtor  litigates  an  unliquidated  claim 
against  his  creditor.  Wells  v.  Cochran,  35: 
142,  129  N.  W.  533,  88  Neb.  367. 

279.  The  refusal  of  a  court  in  which  a 
default  judgment  against  an  estate  was  en- 
tered, to  set  it  aside,  will  not  prevent  equi- 
ty from  enjoining  the  enforcement  of  a 
judgment  upon  an  appeal  bond,  the  enforce- 
ment of  which  will  deplete  the  assets  of 
the  estate  because  the  surety  is  indemnified, 
until  a  set-off  can  be  establish<'d,  where 
the  judgment  creditor  is  insolvent,  and  se- 
cured the  judgment  by  taking  advantage 
of  the  absence  of  the  executor,  when  the 
latter  understood  that  the  matter  would 
not  be  pressed  until  a  later  time.  Wells  v. 
Cochran,  35:  142,  129  N.  W.  533,  88  Neb. 
367. 

280.  If  an  executor  sued  for  his  testator's 
debt  is  prevented  from  proving  a  set-off  by 
the  unconscionable  conduct  of  an  insolvent 
plaintiff,  and  by  his  own  innocent  mistake, 
a  court  of  equity  may,  in  its  discretion,  en- 
join the  collection  of  the  judgment  until 
the  set-off  is  liquidated  in  an  action  at 
law,  and  subsequently  set  off  the  judg- 
ments so  far  as  they  equal  each  other. 
Wells  v.  Cochran,  35:  142,  129  N.  W.  533, 
88    Neb.    367.  (Annotated) 

281.  A  court  of  equity  will  not  restrain 
the  enforcement  of  a  judgment  at  law  on 
the  ground  of  perjury  or  fraud  in  obtaining 
it,  unless  such  fraud  is  extrinsic  or  collat- 
eral to  the  question  examined  and  deter- 
mined in  the  action.  Donovan  v.  Miller,  9; 
524,   88   Pac.   82,   12  Idaho,  600. 

282.  A  court  of  equity  will  not  grant  an 
injunction  to  restrain  the  enforcement  of  a 
judgment  at  law  on  the  grounds  of  want 
of  consideration,  or  that  the  contract  sued 
on  is  against  public  policy,  where  the  de- 
fendant, through  negligence  of  his  attor- 
neys, fails  to  set  up  such  defenses.  Dono- 
van V.  Miller,  9:  524,  88  Pac.  82,  12  Idaho, 
600. 

283.  The  enforcement  of  a  judgment  will 
not  be  restrained  on  the  ground  of  the 
failure  or  negligence  of  the  attorneys  of  the 
party  against  whom  it  is  rendered  to  inter- 
pose all  of  his  defenses  in  the  trial  court. 
Donovan  v.  Miller,  9:  524,  88  Pac.  82,  12 
Idaho,  600.  (Annotated) 

284.  That  a  judgment  was  confessedly 
procured  by  perjury  gives  a  court  of  equity 
no  jurisdiction  to  enjoin  its  enforcement. 
South  Haven  &  E.  R.  Co.  v.  Culver,  23:  564, 
122  N.  W.  95,  157  Mich.  344.         (Annotated) 

285.  Equily  will  enjoin  the  enforcement  of 
a   judgment  secured   by   perjury   where  the 


INJUNCTION,  I.  i. 


1513 


juugment  debtor  used  diligence,  but  failed 
to  discover  ihe  perjury  in  time  to  be  avail- 
able at  tlie  trial,  or  to  secure  the  relief  pro- 
vided by  statute  in  such  cases.  Boring  v. 
Ott,  19:  1080,  119  N.  W.  865,  138  Wis.  26U. 

286.  I'lquity  will  not  restrain  the  enforce- 
ment of  a  judgment  on  the  ground  that  it 
was  secured  by  perjury  unless  the  perjury 
is  established  beyond  all  reasonable  contro- 
versy by  evidence  clear,  convincing,  and  sat- 
isfactory. Boring  v.  Ott,  19:  1080,  119  N. 
W.  865,   138   Wis.  260. 

287.  One  against  whom  a  judgment  has 
been  entered  by  confession  caimot  after  de- 
nial by  the  court  which  entered  the  judg- 
ment, and  which  had  jurisdiction  of  a  mo- 
tion to  set  it  aside,  to  set  aside  the  judg- 
ment because  of  fraud  in  obtaining  the 
instrument  upon  which  the  judgment  was 
entered,  maintain  a  bill  to  enjoin  enforce- 
ment of  the  judgment,  which  is  based  upon 
the  same  grounds  considered  in  the  motion. 
Leaverton  v.  Albert,  36:  990,  81  Atl.  601,  116 
Md.  252. 

288.  An  action  for  damages  for  trespass 
under  a  void  judgment  and  execution  issued 
thereunder  is  not  such  a  plain,  speedy,  and 
adequate  remedy  at  law  as  will  bar  an 
action  to  enjoin  the  enforcement  of  the 
judgment.  Pickering  v.  Palmer,  50:  1055, 
138  Pac.  198,  18  N.  M.  473. 

289.  A  person  against  whom  a  justice  of 
the  peace  has  rendered  a  judgment  void  for 
want  of  jurisdiction  is  not  bound  to  appeal 
or  remove  the  same  by  writ  of  certiorari, 
even  though  he  have  actual  notice  of  the 
existence  of  the  judgment,  but  may  enjoin 
the  inforcement  of  the  judgment.  Pickering 
V.  Palmer,  50:  1055,  138  Pac.  198,  18  N.  M. 
473.  (Annotated) 
'Levy,  garnisliinent,  or  execution  sale. 
See  also  supra,  253. 

290.  Injunction  will  not  lie  to  restrain 
the  prosecution  of  a  garnishment  in  an  ac- 
tion for  debt  before  a  justice  of  this  state 
on  the  ground  that,  in  another  state,  an  in- 
junction is  later  sued  out,  and  is  pending, 
enjoining  the  garnishee  from  paying  the 
money  under  any  judgment  of  such  justice. 
National  Tube  Co.  v.  Smith,  1:  195,  50  S.  E. 
717,  57   W.  Va.  210. 

291.  Injunction  does  not  lie  against  a  gar- 
nishment, in  an  action  before  a  justice,  of 
money  owing  by  the  garnishee  to  a  nonresi- 
dent debtor,  on  the  ground  that  such  money 
is  exempt  by  the  law  of  the  state  of  resi- 
dence of  such  debtor.  National  Tube  Co. 
V.  Smith,  i:  195,  50  S.  E.  717,  57  W.  Va.  210. 

292.  Injunction  will  not  lie  to  prevent  the 
garnishment  of  a  laborer's  wages,  although 
they  are  by  statute  exempt  from  garnish- 
ment, and  a  rule  of  the  employer  provides 
that  employees  whose  wages  are  garnished 
will  be  discharged.  Sturges  v.  Jackson, 
6:  491,  40  So.  547,  88  Miss.  508.  (Annotated) 

293.  Equity  has  no  jurisdiction  to  enjoin 
the  levying  of  repeated  writs  of  garnish- 
ment for  wages  as  they  accrue  from  time  to 
time,  which  the  debtor  defeats  under  the 
statutory  exemption,  where  the  only  means 
of  claiming  the  exemption  designated  by 
the  statute  is  by  the  filing  of  a  schedule  of 
Bieest  1-52  L.R.A.(N.S.) 


the  debtor's  property,  showing  that  it  is 
within  the  amount  allowed  to  the  debtor 
as  exempt  from  execution.  Baxlev  v.  Lus- 
ter, 10:  983,  101  S.  W.  755,  82  Ark.  236. 

(Annotated) 

294.  A  bona  fide  purchaser  of  corporate 
stock  is  entitled  to  an  injunction  to  restrain 
the  sheriff  from  selling  the  stock  upon  an 
execution  .against  the  vendor.  Everitt  v. 
Farmers  &  M.  Bank,  20:  996,  117  N.  W.  401, 

82  Neb.  191. 

Condemnation   proceedings. 
See  also  supra,  25. 

295.  A  proceeding  to  condemn  for  rail- 
road purposes  land  abutting  on  a  public 
street  will  not  be  enjoined  on  the  ground 
that  the  company  has  not  condemned  such 
interest  as  the  lot  owner  may  have  in  the 
street,  or  acquired  the  right  to  cross  it. 
Bridwell  v.  Gate  City  Terminal  Co.  10:  909, 
56  S.  E.  624,  127  Ga.  520. 

296.  Injunction  lies  against  the  condem- 
nation for  public  use  of  property  already 
devoted  to  such  use,  if  the  eminent  domain 
statute  merely  provides  for  the  appoint- 
ment of  commissioners  who  shall  determine 
the  necessity  of  the  taking  and  the  dam- 
ages occasioned  thereby.  Rutland  R.  Light 
&  P.  Co.  V.  Clarendon  Power  Co.  44:  1204, 

83  Atl.  332,  86  Vt.  45. 
Trover. 

297.  A  suit  to  enjoin  an  action  of  trover 
which  had  been  brought  by  the  makers  of 
a  promissory  note  against  the  payee  and  his 
agent,  to  recover  possession  of  it  on  the 
ground  that  it  had  been  fully  paid,  and  its 
possession  had  been  refused  on  demand, 
cannot  be  maintained  although  the  full  pay- 
ment of  the  note  is  denied,  and  notwith- 
standing that  the  payee  could  not  obtain 
judgment  on  the  note  in  the  trover  suit,  or 
that  the  city  court  in  which  that  suit  had 
been  brought  had  no  equitable  jurisdiction. 
Long  V.  Mcintosh,  16:  1043,  59  S.  E.  779, 
129  Ga.  660. 

Criminal  proceedings. 

Appeal  from  order  enjoining  criminal  pro- 
ceedings, see  Appeal  and  Ebroe,  75. 

By  Federal  court  against  criminal  proceed- 
ings in  state  court,  see  Courts,  272. 

Collateral  attack  on  decision  enjoining 
criminal  prosecution,  see  Judgment, 
122. 

See  also  infra,  354,  435. 

298.  It  is  a  rule,  subject  to  few  excep- 
tions, that  a  court  of  equity  will  not  inter- 
fere by  injunction  with  criminal  proceed- 
ings. Flaherty  v.  Fleming,  3:  461,  52  S.  E. 
857,  58  W.  Va.  669. 

299.  A  court  of  equity  may  enjoin  criminal 
proceedings  under  a  void  law  or  ordinance, 
where  property  rights  will  be  destroyed  or 
greatly  impaired.  New  Orleans  Baseball  & 
A.  Co.  V.  New  Orleans,  7:  1014,  42  So.  784, 
118  La.  228. 

300.  Equity  has  jurisdiction  to  enjoin 
criminal  proceedings  instituted  under  an  in- 
valid law  or  ordinance,  whereby  property 
rights  will  be  destroyed  or  their  lawful  en- 
joyment taken  away.  Fellows  v.  Charleston, 
13":  737,  59  S.  E.  623,  62  W.  Va.  665. 

301.  The  invalidity  of  a  statute  must  be 


]514 


INJUNCTION,  I.  j. 


established  before  equity  will  interfere  to 
restrain  a  prosecution  under  it.  Littleton 
V.  Burgess,  2:  631,  82  Pac.  864,  14  Wyo.  173. 

302.  Equity  has  no  jurisdiction  to  enjoin 
threatened  criminal  proceedings  under  a 
statute  enacted  under  the  police  power,  al- 
though it  be  charged  that  the  statute  is  in- 
valid, and  that  a  multiplicity  of  actions 
thereunder  will  injure  and  destroy  civil  and 
property  rights  of  the  complainants,  and 
that  the  damages  resulting  will  be  irrepara- 
ble, when  the  defense  thereto  in  a  court  hav- 
ing jurisdiction  of  the  offense  is  adequate 
and  unembarrassed.  Kelly  v.  Conner,  25: 
201,  123  S.  W.  622,  122  Tenn.  339. 

303.  Equity  will  not  enjoin  repeated 
criminal  prosecutions  for  violations  of  mu- 
nicipal ordinances  prohibiting  the  sale  of 
imitations  of  or  substitutes  for  intoxicat- 
ing liquors,  where  property  or  property 
rights  will  not  be  irreparably  injured  there- 
by, especially  where  the  validity  of  the  or- 
dinance may  be  determined  at  or  near  the 
time  of  the  application  for  the  injunction 
in  prosecutions  already  pending.  Shellman 
v.  Saxon,  27:  452,  67  S.  E.  438,  134  Ga.  29. 

304.  Equity  has  no  jurisdiction  to  enjoin 
threatened  prosecution  for  violation  of  laws 
forbidding  the  sale  of  intoxicating  liquor, 
which  are  alleged  to  be  invalid  or  inapplica- 
ble to  complainant,  even  though  refusal  to 
interfere  will  permit  a  multiplicity  of 
prosecutions  which  will  greatly  injure,  and 
ultimately  destroy,  valuable  property  rights 
of  complainant.  Kelly  v.  Conner,  25:  201, 
123  S.  W.  622,  122  Tenn.  339. 

305.  A  writ  of  review  to  determine  the 
validity  of  a  local-option  election  is  not  as 
eilicient  to  protect  the  right  of  one  engaged 
in  the  liquor  business  as  would  be  an  in- 
junction against  the  enforcement  of  the  law 
alleged  to  have  been  adopted,  and  the  right 
to  it  will  not  therefore  prevent  a  resort  to 
equity,  where  plaintiff  might  be  subjected  to 
a  multiplicity  of  criminal  actions  for  con- 
tinuing his  business  pending  the  hearing  of 
the  writ  of  review,  and  a  judgment  against 
the  officer  for  prosecuting  them  in  case  the 
law  proves  to  be  invalid  might  be  fruitless 
because  of  his  insolvency.  Hall  v.  Dunn, 
25:  193,  97  Pac.  811,  52  Or.  475. 

(Annotated) 

306.  The  right  to  enjoy  a  privilege  under 
a  municipal  license  is  not  property  of  such 
a  character  that  a  court  of  equity  will  pro- 
tect it,  after  the  implied  revocation  of  the 
license,  against  the  result  of  a  criminal 
prosecution.  Littleton  v.  Burgess,  2:  631, 
82  Pac.  864,  14  Wyo.  173. 

307.  Equity  has  no  jurisdiction  to  enjoin 
the  prosecution  of  one  for  violation  of  a 
statute  against  gambling,  although  he 
claims  to  be  acting  under  a  municipal  ordi- 
nance. Littleton  v.  Burgess,  2:  631,  82  Pac. 
864,  14  Wyo.   173.  (Annotated) 

308.  Equity  will  not  enjoin  proceedings 
under  a  valid  criminal  statute,  although  the 
acts  of  the  accused  are  not  within  its  pro- 
visions, and  the  prosecution  is  without  rea- 
sonable or  probable  cause,  and  will  injure  or 
destroy  the  right  of  accused  to  carry  on  his 
Digest  1-52  i:..R.A.(N.S.) 


business.  Sullivan  v.  San  Francisco  Gas  &■ 
Electric  Co.  3:  401,  83  Pac.  156,  148  CaL 
308. 

309.  Injunction  will  not  lie  to  prevent  the 
further  prosecution  of  persons  who  have 
been  released  from  custody  under  a  writ  of 
habeas  corpus  because  of  the  inapplicability 
of  the  statute  under  which  the  prosecution 
was  instituted.  Denton  v.  McDonald,  34: 
453,  135  S.  W.  1148,  104  Tex.  206. 

( Annotated ) 

j.  Against  officers  generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Determining  title  to  office,  see  supra,  244,. 
245. 

Temporary  injunction,  see  infra,  417. 

Against  execution  of  order  of  water  board 
reducing  rates,  see  Constitutional 
Law,  790. 

Contempt  in  violating  injunction,  see  Con- 
tempt, 41,  42. 

Jurisdiction  of  court  to  enjoin,  see  CouBTS, 
68. 

To  restrain  public  service  corporation  from 
interfering  with  property,  see  Eminent 
Domain,  123. 

Who  may  maintain  suit  for,  see  Pasties,. 
114,  126-134. 

Prohibition  in  suit  to  enjoin  pure  food  com- 
missioner, see  PBoniBiTiON,  20. 

Prohibiting  court  from  passing  on  bill  tO' 
enjoin  passage  of  ordinance,  see  Pro- 
hibition, 22. 

Against  national  guard,  see  State,  26. 

See  also  supra,  207;  infra,  382. 

310.  Injunction  will  lie  at  the  suit  of  the 
state  brought  by  the  county  attorney  as  an 
executive  law  officer  to  enjoin  the  executive 
officers  of  the  state,  other  than  the  governor, 
from  removing  their  offices,  public  records, 
books,  and  papers  from  the  seat  of  govern- 
ment, and  expending  the  funds  of  the  state 
for  such  purpose.  State  ex  rel.  West  v. 
Huston,  34:  380,  113  Pac.  190,  27  Okla.  006. 

(Annotated) 

311.  Officers  of  a  city  may  be  enjoined  at 
the  suit  of  resident  taxpayers  and  bene- 
ficiaries of  the  trust,  from  establishing  city 
offices  in  part  of  a  building  erected  for  a 
public  library  with  money  contributed  by  % 
private  individual  for  that  purpose,  on  con- 
dition that  the  city  should  maintain  there- 
in a  library  at  a  cost  not  less  than  a  stated 
sum  per  year.  Perry  Public  Library  Asso. 
v.  Lobsitz,  45:  368,  130  Pac.  919,  35  Okla. 
576. 

312.  The  enforcement  of  an  order  of  the 
board  of  dental  examiners,  revoking  the 
license  of  a  dentist,  will  not  be  enjoined 
for  any  informalities  in  the  complaint 
made,  or  in  the  manner  of  conducting  the 
investigation  based  thereon,  where  he  is 
advised  of  the  nature  of  the  accusation 
against  him,  and  given  a  fair  opportunity 
to  prepare  and  present  his  defense.  Rich- 
ardson V.  Simpsop,  43:911,  129  Pac.  1128, 
88  Kan.  684. 


INJUNCTION,  I.  j. 


1515 


313.  Injunction  will  not  lie  against  the 
removal  by  a  solvent  municipal  corpora- 
tion of  a  wooden  building  erected  within 
its  fire  limits  and  used  for  purposes  of 
amusement,    since    the    remedy    at    law    is 

•  adequate.     Clark  v.  Deadwood,   i8:  402,  117 
N.  VV.  131,  22  S.  D.  233. 
Governor. 

314.  Tlie  governor  of  a  state  may  be  re- 
strained by  a  court  of  equity  from  doing 
in  an  illegal  manner  something  he  has  the 
right  to  do,  or  from  usurping  powers  not 
rightly  belonging  to  his  office.  Ekern  v. 
McGovern,  46:  796,  142  N.  W.  595,  154  Wis. 
157. 

School   officers. 
See  also  infra,  352, 

315.  The  powers  of  equity  may  not  be 
invoked  by  resident  taxpayers  of  a  school 
district,  to  enjoin  the  officials  of  the  school 
district  from  discharging  a  teacher  em- 
ployed by  contract  to  teach  a  school  for  a 
specified  time.  Greer  v.  Austin,  51:  336, 
136  Pac.  590,  40  Okla.  113.      (Annotated) 

316.  The  powers  of  equity  may  not  be 
invoked  by  a  teacher  to  enjoin  the  school 
board  from  discharging  him  before  he  had 
taught  the  school  for  which  he  was  hired 
pursuant  to  the  terms  of  his  contract. 
Greer  v.  Austin,  51:336,  136  Pac.  590,  40 
Okla.  113.  ^ 

317.  Equity  may  enjoin  the  revocation  of 
a  school  teacher's  license  for  other  than  a 
statutory  cause.  Stone  v.  Fritts.  15:  1147, 
82  N.  E.  792,  169  Ind.  361.  (Annotated) 

318.  One  accepting  a  license  to  teach 
school  cannot  resort  to  the  courts  to  pre- 
vent its  revocation  on  statutory  grounds 
by  the  proper  school  officers,  but  must  sub- 
rait  himself  to  their  authority.  Stone  v. 
Fritts,  15:  1 147,  82  N.  E.  792,  169  Ind.  361. 

( Annotated ) 

319.  Bias,  or  want  of  judicial  capacity, 
on  the  part  of  a  school  superintendent,  is 
no  ground  for  interference  by  the  courts 
with  the  exercise  of  his  jurisdiction  to  re- 
voke a  teacher's  license  on  statutory 
grounds.  Stone  v.  Fritts,  15:  1147,  82  N.  E. 
792,  169  Ind.  361. 

320.  A  school  teacher  cannot  enjoin  the 
revocation  of  his  license  upon  the  charge  of 
refusal  to  board  in  the  school  community, 
on  account  of  which  he  cannot  open  the 
daily  sessions  in  reasonable  time,  where  the 
charge  of  refusal  to  board  in  the  community 
might  have  been  amended  or  stricken  out 
at  the  hearing  before  the  commissioner. 
Stone  V.  Fritts,  15:  1147,  82  N.  E.  792,  169 
Ind.  361. 

321.  The  court  will  not  interfere  with  the 
enforcement  by  a  board  of  education  of  a 
rule  forbidding  members  of  secret  societies 
from  representing  the  schools  which  they 
attend,  in  any  public  capacity.  Wilson  v. 
Board  of  Education,  15:  1136,  84  N.  E.  697, 
233  111.  464. 

Pure  food  commissioners. 

322.  The  pure  food  commissioner  may  be 
enjoined  from  distributing  circulars  or 
bulletins  condemning  the  food  products  of 
manufacturers  as  harmful  and  deceptive  to 
the  public,  when  his  acts  are  in  excess  of 
Digest  1-52  L.R.A.(N.S.) 


I  the  power  or  authority  conferred  upon  him 

I  by  law,  and  will  cause  irreparable  injury. 

State  ex  rel.  Ladd  v.  District  Ct.  15:  331,  115 

N.  W.  675,  17  N.  D.  285.  (Annotated) 

323.  A  district  court  of  the  state  of  North 
Dakota  may  properly  entertain  jiirisdiction 
of  an  action  brought  by  parties  whose  food 
products  are  about  to  be  destroyed  by  the 
pure  food  commissioner,  and  who  will  be 
thereby  subjected  to  a  multiplicity  of  suits, 
to  enjoin  liim  from  unlawfully  proceeding. 
State  ex  rel.  Ladd  v.  District  Ct.  15:  331, 
115  N.  W.  675,  17  N.  D.  285. 

324.  The  legality  of  the  acts  of  the  pure 
food  commissioner,  and  the  question  wheth- 
er he  is  exceeding  the  powers  conferred  up- 
on him  by  law,  may  be  tested  in  an  action 
to  enjoin  him  from  the  commission  of  acts 
alleged  to  be  without  authority.  State  ex 
rel.  Ladd  v.  District  Ct.  15:  331,  116  N.  W. 
675,  17  N.  D.  285. 

Railroad    coiniuissioners. 

325.  Allegations  that  an  order  of  the 
railroad  commissioners  is  exceptional,  un- 
reasonable, and  imposes  an  unjust  tax  on 
the  resources  of  the  complainant  railroad 
company,  in  that  it  requires  the  company, 
at  great  expense,  to  increase  and  improve 
its  depot  facilities  by  enlarging  the  wait- 
ing rooms,  baggage  room,  and  sheds,  and 
by  reconstructing  the  toilet  rooms,  and  sub- 
stituting electric  lights  for  kerosene  lamps, 
when  the  company  deems  its  present  facili- 
ties are  adequate,  do  not  make  a  case  for 
an  injunction,  even  though  the  order,  in 
some  of  its  particulars,  may  be  an  excess 
or  abuse  of  authority  and  discretion,  since 
the  remedy  at  law  is  complete  and  adequate, 
in  that  the  invalidity  of  the  order  is  avail- 
able as  a  defense  in  an  action  to  enforce 
the  order,  or  to  collect  a  statutory  penalty 
for  not  obeying  it.  Louisville  &  N.  R.  Co. 
V.  Burr,  44:  189,  58  So.  543,  63  Fla.  491. 
Police  officers. 

326.  Equity  will  not  enjoin  police  officials 
from  stationing  officers  near  a  place  where 
liquor  is  sold  under  a  tax  certificate,  to 
warn  intending  patrons  that  the  place  is  dis- 
orderly and  subject  to  raid,  since,  assuming 
that  the  acts  are  illegal,  if  the  assumption 
of  fact  is  erroneous,  that  fact  must  be  es- 
tablished at  law.  Delaney  v.  Flood,  2:  678, 
76  N.  E.  209,  183  N.  Y.  323.        (Annotated) 

327.  A  proprietor  of  a  cigar  stand  and 
restaurant  opening  off  from  a  passageway 
from  a  public  street  to  a  court  upon  which 
are  located  houses  and  rooms  used  ex- 
clusively for  purposes  of  prostitution  can- 
not enjoin  the  police  department  of  the  city 
from  maintaining  officers  at  the  entrance 
of  the  passageway  to  ask  the  names  of 
persons  attemiting  to  enter  the  place,  al- 
though the  effect  is  to  injure  his  business. 
Pon  V.  Wittman,  2:  683,  81  Pac.  984,  147 
Cal.  280. 

328.  Equity  will  not  enjoin  repeated  ar- 
rests of  a  merchant  for  alleged  violation  of 
a  town  ordinance  by  the  use  of  a  mega- 
phone in  advertising  his  goods  pending  his 
appeal  from  a  first  conviction.  Pleasants 
V.  Smith,  9:  773,  43  So.  475,  90  Miss.  440. 


1516 


INJUNCTION,  I.  j. 


As  to  use  of  public  funds. 

320.  If  warrants  issued  by  a  county  in 
payment  of  current  expenses  aggregate  a 
sum  larger  than  that  which  the  county  has 
in  its  treasury,  derived  from  the  revenues 
of  the  year  in  which  the  liabilities  were  in- 
curred, and  the  legality  of  some  of  the  war- 
rants contending  for  payment  is  in  issue, 
equity  will  restrain  the  treasurer  from  dis- 
bursing the  county  funds  in  his  hands  until 
it  may  be  judicially  determined  to  whic!) 
warrants  and  in  what  proportions  the  funds 
shall  be  distributed.  Butts  County  v.  Jack- 
son Bkg.  Co.  15:  567,  60  S.  E.  149,  129  Ga. 
801. 

332.  A  state  auditor,  although  an  ex- 
ecutive officer,  may  be  enjoined  from  doing 
a  purely  ministerial  act,  such  as  the  issuing 
of  warrants  payable  out  of  the  general 
revenue  funds,  pursuant  to  an  unconstitu- 
tional statute,  at  the  suit  of  a  taxpayer  who 
would  be  injured  thereby,  since,  as  such  act 
is  not  one  involving  the  exercise  of  dis- 
cretion, the  granting  of  the  injunction 
would  not  constitute  an  encroachment  on 
the  executive  branch  of  the  government. 
Cooke  V.  Iverson,  52:  415,  122  N.  VV.  251, 
108  Minn.  3S8.  (Annotated) 

333.  Equity  will  not,  at  the  suit  of  tax- 
payers, enjoin  the  payment  of  reasonable 
compensation  for  necessary  personal  services 
rendered  by  one  of  the  directors  of  a  school 
district,  which  are  entirely  outside  the 
duties  of  his  office  as  director  in  full  per- 
formance of  his  contract  with  the  board, 
which  it  accepted,  and  the  benefit  of  which 
has  been  retained  by  the  district,  since  the 
contract  being  only  voidable,  the  district 
must  make  the  requisite  compensation  if  it 
accepts  the  benefits,  without  attempting  to 
avoid  the  contract.  Smith  v.  Dandridge, 
34:  129,   135  S.   W.   800,  98  Ark.  38. 

( Annotated ) 
To  restrain  contract. 

334.  A  taxpayer  cannot  enjoin  the  carry- 
ing into  efTect  of  a  contract  for  the  purchase 
of  voting  niaciiines  which  had  been  author- 
ized by  the  legislature  and  approved  by 
its  committee,  where  the  contract  expressly 
provides  that  no  liability  to  pay  for  the 
machines  shall  attach  until  the  legality 
of  their  use  has  been  settled  by  a  court 
of  competent  jurisdiction.  Shoemaker  v. 
Des  Moines,  3:  382,  105  N.  W.  520,  129 
Iowa,  244. 

335.  A  citizen  and  taxpayer  of  a  county 
may  maintain  a  bill  to  enjoin  the  execution 
of  a  void  contract  by  the  county  to  employ 
a  person  to  search  for  property  omitted 
from  the  tax  lists  for  a  percentage  of  the 
amount  recovered.  Stevens  v.  Kenry  Coun- 
*;y,  4:  339,  75  N.  E.  1024,  218  111.  468. 

336.  A  preliminary  injunction  will  issue 
to  stop  perfori-iance  of  a  contract  for  street 
paving  at  the  suit  of  an  abutting  property 
owner  upon  whom  the  cost  is  to  be  assessed, 
where  no  valid  contract  for  work  has  been 
made,  and  tae  invalidity  is  of  a  character 
highly  likely  to  prejudice  the  plaintiff  in  a 
manner  and  degree  not  readily  separable 
from  the  burdens  which  may  lawfully  be 
Digest   1-52  I..R.A.(N.S.) 


imposed  upon  him.     Allen  v.  Milwaukee,  5: 
680,  100  N.  W.  1099,  128  Wis.  678. 

337.  A  taxpayer  cannot  enjoin  perform- 
ance of  a  street-improvement  contract  be- 
cause the  municipal  authorities,  upon  re- 
jecting all  bids  for  the  work,  entered  into 
negotiations  with  the  lower  bidders  for  bet- 
ter terms,  instead  of  reopening  the  matter 
to  full  competition  among  all  the  bidders, 
unless  he  shows  that  some  injury  to  him  is 
worked  thereby.  Dillingham  v.  Spartan- 
burg, 8:  412,  56  S.  E.  381,  75  S.  C.  549. 

As  to  ordinances. 

Restraint  of  criminal  proceedings  under 
void  ordinance,  see  supra,  299,  300,  303. 

Appeal  in  suit  for  injunction  against  en- 
forcement of  prdinance,  see  Appeal  awd 
Error,  725. 

Ordinance  prescribing  telephone  rates,  see 
Telephones,  16. 

338.  Injunction  lies  against  the  enforce- 
ment of  a  municipal  ordinance  which  there 
was  no  power  to  enact.  Bear  v.  Cedar  Rap- 
ids, 27:  1150,  126  N.  W.  324,  147  Iowa,  341. 

339.  Equity  has  jurisdiction  to  prevent 
the  enforcement  of  an  invalid  municipal 
ordinance  to  present  irreparable  injury  and 
multiplicity  of  prosecutions.  Chesapeake  & 
O.  R.  Co.  V.  Harmon,  45:  946,  156  S.  W. 
121,  153  Ky.  669. 

340.  Equity  may  enjoin  the  enforcement 
of  an  invalid  municipal  ordinance  which  m  ill 
result  in  the  demolition  of  buildings  and 
interfere  with  the  prosecution  of  a  lawful 
business.  Cuba  v.  Mississippi  Cotton  Oil 
Co.  10:  310,  43  So.  706,  150  Ala.  259. 

341.  The  enforcement  of  a  municipal  or- 
dinance excluding  the  erection  or  operation 
of  baseball  parks  within  certain  limits  may 
be  restrained  by  injunction,  where  the  or- 
dinance is  personal,  arbitrary,  and  discrim- 
inatory in  its  character,  the  power  of  the 
city  council  to  enact  it  as  a  police  regula- 
tion is  questionable,  and  it  would  injurious- 
ly aflect  property  rights.  New  Orleans  Base- 
ball &  A.  Co.  v.  New  Orleans,  7:  1014,  42  So. 
784,   118  La.  228. 

342.  Injunction  will  lie  to  prevent  the 
enforcement  of  a  municipal  ordinance, 
where  such  enforcement  will  cause  sub- 
stantial and  irremediable  injury  to  private 
property  or  private  property  rights,  and 
there  is  no  adequate  remedy  in  the  ordi- 
nary course  of  law.  Abbey  Land  &  Improv. 
Co.  v.  Sanmates,  52:  408,  139  Pac.  1068,  167 
Cal.  434. 

343.  Injunction  will  lie  against  the  en- 
forcement of  a  void  municipal  ordinance 
requiring  the  paving  of  stables  and  connect- 
ing them  with  the  city  sewer  and  water 
main,  where  the  enforcement  would  cause 
large  expenditures  of  money  and  interrup- 
tion of  business,  or  result  in  repeated  pros- 
ecutions of  offenders  from  which  they  can- 
not protect  themselves.  Board  of  Comrs.  v. 
Orr,  45:  575,  61  So.  920,  181  Ala.  308. 

344.  Injunction  will  not  lie  against  the 
enforcement  of  a  prohibitory  liquor  ordi- 
nance alleged  to  be  invalid  to  prevent  either 
multiplicity  of  suits  or  the  infliction  of  ir- 
reparable injury,  although  there  is  a  pro- 
vision for  seizure  of  liquors  found  in  pos- 


INJUNCTION,  I.  j. 


151T 


session  of  accused  persons,  or  because  of 
absence  of  nmedy  at  law,  where  a  statute 
prohibiting  the  business  is  in  existence. 
Hoffman  v.  Tooele,  45:  992,  130  Pac.  61,  42 
Utah,  353. 

345.  A  court  of  equity  may  enjoin  a  mu- 
nicipal corporation  from  publishing  and 
putting  into  effect  a  void  ordinance  which 
attempts  to  repeal  a  valid  assessing  ordi- 
nance providing  the  means  of  payment  for 
certain  street  improvements  lawfully  con- 
tracted for,  where  such  repealing  ordinance, 
if  allowed  to  stand,  would  destroy  the 
property  of  the  contractor  making  such 
improvements,  by  interfering  with  his  col- 
lection of  payment  therefor.  El  Reno  v. 
Cleveland-Trinidad  Paving  Co.  27:  650,  107 
Pac.   163,  25  Okla.  648. 

346.  Municipal  authorities  should  not  be 
enjoined  from  preventing  the  erection  of  a 
building  constructed  entirely  of  wood  ex- 
cept that  it  is  covered  on  the  outside  with 
sheets  of  corrugated  iron,  in  limits  within 
which  a  municipal  ordinance  requires  that 
all  buildings  shall  be  constructed  of  brick, 
stone,  or  other  incombustible  material,  and 
covered  with  tin,  metallic,  or  other  fireproof 
roofing.  Sylvania  v.  Hilton,  2:  483,  51  S.  E. 
744,   123   Ga.   754. 

'347.  Attempted  enforcement  of  contrac- 
tual regulations  of  public  service,  by  crimi- 
nal proceedings  under  an  ordinance  of  a 
city  not  authorized  by  legislative  enactment 
to  adopt  such  means  of  enforcement,  may  be 
enjoined.  Bluefield  Waterworks  &  I.  Co. 
V.  Bluefield,  33:  759,  70  S.  E.  772,  69  W. 
Va.  1. 

348.  Injunction  against  the  arbitrary  clos- 
ing of  a  clubhouse  because  of  alleged  viola- 
tion of  an  ordinance  against  dispensing  in- 
toxicating liquors  within  the  city  is  not 
prevented  by  a  statute  providing  that  no 
injunction  shall  issue  to  restrain  the  en- 
forcement of  a  penal  ordinance,  since  the 
statute  refers  only  to  its  judicial  enforce- 
ment. ■  Canon  City  v.  Manning,  17:  272,  95 
Pac.  537,  43  Colo.  14-4. 
As  to  use  of  piil>Iic  funds. 
Conclusiveness  of  decree,  see  Judgment,  199. 
Who  mav  maintain  suit,   see   Pakties,   38, 

127-331. 
To  restrain  contracts  and  bond  issues. 
Against  issuing  and  sale  of  municipal  bonds, 

see  Bonds,  89. 
Nature  of  suit  by  taxpayer  to  restrain  il- 
legal  public   contract,   see    Action    or 
Suit,  55. 
Conclusiveness  of  judgment  adverse  to  plain- 
tiff, see  Judgment,  158. 
Who  bound  by  decree,  see  Judgment,  230. 

231. 
Who  may  maintain  suit  for,  see  Parties, 

128,  130-134. 
See  also  infra,  442. 

To  prevent  ettforcement  of  statute. 
Injunction  to  restrain  criminal  proceedings 
under  invalid  statute,   see  supra,   299- 
302,  304,  305. 
Digest   1-52  L.R.A.(N.S.) 


Original  jurisdiction  of  appellate  court  of 
suit  to  enjoin  enforcement  of  statute, 
see  Courts,  231. 

Federal  jurisdiction,  see  Courts,  252. 

Jurisdiction  generally,  see  Courts,  252. 

Injunction  by  Federal  court  against  enforce- 
ment of  state  statute,  see  Courts,  272, 
284-286. 

Criminal  liability  for  violation  of  statute 
during  existence  of  order  enjoining  its 
enforcement,  see  Criminal  Law,  5. 

Form  of  judgment  on  dismissal  of  bill  to 
enjoin  enforcement  of  statute,  see 
Judgment,  40. 

Who  affected  by  decree  in  suit  to  enjoin  en- 
forcement of  statute,  see  Judgment, 
198. 

Who  may  maintain  suit,  see  Parties,  41. 

Parties  defendant  in  suit  to  enjoin  enforce- 
ment of  statute,  see  Parties,  167. 

See  also  Courts,  131,  138;   State,  20-23. 

349.  The  general  discretion  of  the  attor- 
ney general  of  a  state,  regarding  the  enforce- 
ment of  the  laws  when  and  as  he  deems 
appropriate,  is  not  interfered  with  by  an  in- 
junction restraining  him  from  taking  any 
steps  towards  the  enforcement  of  an  uncon- 
stitutional enactment,  to  the  injury  of  a 
complainant.  Ex  parte  Young,  13:  932,  28 
Sup.  Ct.  Rep.  441,  209  U.  S.  123,  52  L.  ed.  714. 

350.  Equity  may  enjoin  state  officers 
from  putting  in  force  an  unconstitutional 
tax  law  which  will  constitute  an  interfer- 
ence with  property  rights,  and  may  sub- 
ject the  property  owners  to  a  multiplicity 
of  suits.  Missouri,  K.  &  T.  R.  Co.  v.  Shan- 
non, 10:  681,  100  S.  W.  138,  100  Tex.  379. 

351.  An  injunction  to  restrain  execution 
of  an  unconstitutional  tax  law  is  not  pre- 
vented by  the  fact  that  the  acts  are  already 
completed  for  the  current  year,  where  the 
bill  seeks,  also,  to  enjoin  acts  in  future 
years.  Missouri,  K.  &  T.  R.  Co.  v.  Shan- 
non, 10:  681,  100  S.  W.  138,  100  Tex.  379. 

352.  Equity  will  not  interpose  to  restrain 
the  adoption  by  the  school  board  of  the 
report  of  a  committee  for  tiie  cliange  of 
school  text-books,  even  though  the  statute 
under  which  the  action  purports  to  be  taken 
is  unconstitutional,  since  there  is  an  ade- 
quate remedy  at  law  by  mandamus  to  com- 
pel the  recognition  of  legal  rights  of  pupils. 
Harley  v.  Lindemann,  8:  124,  109  N.  W.  570, 
129  Wis.  514.  (Annotated) 

353.  A  court  of  equity  ought  not  to  inter- 
fere with  and  strike  down  an  act  of  the 
legislature  fixing  maximum  express  rates, 
before  a  fair  trial  has  been  made  of  con- 
tinuing the  business  thereunder,  and  in 
advance  of  any  actual  (experience  of  the 
practical  result  of  such  rates.  State  v. 
Adams  Express  Co.  42:396,  122  N.  W.  691, 
85  Neb.  25. 

354.  An  action  cannot  be  maintained  by 
a  creamery  company  engaged  in  manufac- 
turing butter  from  cream,  to  enjoin  certain 
carriers  from  complying  with,  and  the  at- 
torney general  from  enforcing,  a  statute 
regulating  shipment  of  cream  on  railroads 
within  the  state,  on  the  ground  that  such 
act  is  unconstitutional  and  compliance 
therewith  would  interfere  with  the  supply 


1518 


INJUNCTION,  I.  k,  1. 


of  cream  necessary  to  its  business  and  that 
of  other  manufacturers  similarly  situated, 
thus  causing  great  losses  and  eventual  de- 
struction of  their  business,  notwithstanding 
the  multiplicity  of  actions  against  the  car- 
rier incident  to  enforcement  of  the  statute, 
since  the  action  is  essentially  one  to  re- 
strain a  criminal  prosecution  and  no  direct 
injury  or  trespass  to  or  against  the  plain- 
tiff's property  riglits  is  alleged.  Milton 
Dairy  Co.  v.  Great  Northern  R.  Co.  49: 
951,  144  N.  W.  764.  124  Minn.  239. 

355.  Equity  has  jurisdiction  to  enjoin  an 
unconstitutional  full  crew  act  notwithstand- 
ing violation  of  it  is  declared  to  be  a 
misdemeanor  if  the  statute  in  fact  provides 
a  penalty  for  its  violation  to  be  recovered 
by  suit  in  the  name  of  the  commonwealth. 
Pennsylvania  R.  Co.  v.  Ewing,  49:  977,  88 
Atl.  775,  241  Pa.  581. 

To  prevent  enforcement  of  mnnicipal 
order. 

356.  Injunctive  relief  should  be  granted, 
where  a  city  council  has,  without  authority, 
arbitrarily  revoked  a  license  permitting  the 
keeping  of  a  restaurant  or  lunch  counter, 
on  the  ground  that  from  the  manner  in 
which  it  was  conducted  it  constituted  a  nui- 
sance, to  prevent  a  further  interference 
with  the  business  under  pretense  of  author- 
ity derived  from  the  ineffectual  attempt 
to  revoke  the  license.  Peginis  v.  Atlanta, 
35:  716,  63  S.  E.  857,  132  Ga.  302. 

357.  Equity  will  restrain  a  municipal  cor- 
poration from  proceeding  under  an  illegal 
and  invalid  order  or  resolution  to  remove 
an  alleged  nuisance,  where  private  rights 
are  unlawfully  encroached  upon  and  irrep- 
arable injury  will  ensue.  Parker  v.  Fair- 
mont, 47:  1 1 38,  79  S.  E.  660,  72  W.  Va.  688. 

358.  A  municipal  corporation  may  be  en- 
joined from  proceeding  to  enforce  its  order 
to  close  a  clubroom,  based  upon  an  arbi- 
trary ex  parte  determination  that  the  fur- 
nishing by  the  club  of  intoxicating  liquors 
to  its  members  violates  the  ordinance  against 
dispensing  such  liquors  in  the  city.  Canon 
City  v.  Manning,  17:  272,  95  Pac.  537,  43 
Colo.  144. 

fc.  Against  taxes  or  a,sse8snvent8. 

(See  also  acme  heading  in  Digest  L.R.A. 
1-10.) 

Against  enforcement  of  unconstitutional 
tax  law,  see  supra,  350,  351. 

Conclusiveness  of  injunction  order  on  per- 
son not  party  to  suit,  see  Jxjdgment, 
232. 

Effect  of  enjoining  collection  of  assessments 
on  liability  of  township  trustees  for 
failure  to  enforce  assessments  for  pub- 
lic work,  see  Towns,  13,  14. 

359.  The  collection  of  an  illegal  tax  may 
be  enjoined.  Fiscal  Court  v.  F.  &  A.  Cox 
Co.  21:  83,  117  S.  W.  296,  132  Ky.  738. 

360.  Equity  may  enjoin  the  collection  of 
an     unauthorized     tax     notwithstanding     a 
statutory    remedy    at    law.      Wythoville    v 
Huff,  18:  960,  62  S.  E.  328,  108  Va.  589 
Digest  1-52  L.R.A.(N.S.) 


Tax  or  assessment  partly  erroneous. 

361.  An  assessment  wliich  is  merely  ex- 
cessive will  not  be  enjoined  as  fraudulent. 
Finnpv  Countv  v.  Bullard,  16:  807,  94  Pac. 
129,   77  Kan.  349. 

362.  In  the  absence  of  fraud  or  conduct 
which  is  equivalent  to  fraud,  an  overvalua- 
tion of  property  by  assessors  will  not,  of 
itself,  justify  an  injunction  against  the  col- 
lection of  taxes  based  upon  the  assessment; 
especially  where,  if  the  attack  prevails,  it 
will  operate  to  invalidate  the  whole  tax  levy. 
Finney  County  v.  Bullard,  16:  807,  94  Pac. 
129,  77  Kan.  349.  (Annotated) 

363.  Injunction  will  not  be  awarded  to 
prevent  the  collection  of  a  tax  on  the  ground 
of  an  irregular  or  excessive  assessment,  un- 
less the  case  comes  clearly  under  some  ac- 
knowledged head  of  equity  jurisdiction. 
Finney  Countv  v.  Bullard.  16:  807,  94  Pac. 
129,  77  Kan.  349. 

364.  The  collection  of  a  tax  cannot  be 
enjoined  because  of  the  separate  assessment 
of  the  land  and  the  buildings  thereon,  the 
one  to  the  lessor  and  the  other  to  the  lessee 
of  the  land,  although  such  method  of  as- 
sessment is  erroneous,  if  no  prejudice  there- 
by results  to  the  taxpayer.  Norfolk  v.  J. 
W,  Perry  Co.  35:  167,  61  S.  E.  867,  108  Va. 
28. 

Assessments  for  local  improvements. 

365.  Injunction  will  lie  to  restrain  a  city 
council  from  proceeding  under  color  of  right 
to  reassess  special  taxes  and  relevy  the 
same  upon  property,  when  it  has  no  au- 
thority to  do  so.  Lincoln  v.  Barkley,  18: 
392,  117  N.  W.  398,  82  Neb.  181. 

366.  Injunction  will  lie  to  prevent  the 
collection  by  a  municipal  corporation  from 
an  abutting  owner  of  an  assessment  for  a 
worthless  sidewalk  which  it  accepted,  after 
contracting  under  its  police  power  for  a 
sound  walk  to  be  laid  at  his  expense. 
Eiermann  v.  Milwaukee,  27:  1085,  126  N. 
W.  53,   142  Wis.   606. 

367.  If,  at  the  time  a  public  improvement 
is  completed  and  accepted  by  a  municipal 
corporation,  its  constitutional  debt  limit 
has  been  exceeded,  the  city  may,  at  the  suit 
of  taxpayers,  be  enjoined  from  taking  any 
steps  to  raise  money  by  levying  a  tax 
against  the  taxpayers  of  the  city  to  pay  for 
the  improvement.  Logansport  v.  Jordan, 
37:  1036,  85  N.  E.  959,  171  Ind.  121. 

I.  As  to  paries,  highways,  bridges,  and 
railroads. 

(See  also   same  heading  in  Digest  L.R.A. 
1-70.) 

See  also   supra,   336. 

368.  A  municipality  which  has  no  present 
need  to  occupy  the  subsurface  of  a  street 
for  its  own  purposes  cannot  enjoin  the 
lessee  of  the  owner  of  the  fee  therein,  who 
has  the  implied  right  to  make  the  same 
use  of  the  street  as  his  lessor,  from  making 
lawful  use  of  it  for  his  own  private  purpose. 
Lynch  v.  Northview,  52:  1038,  81  S.  E.  833, 
73  W.  Va.  609. 

•a 


INJUNCTION,  I.  1. 


1519 


369.  A  property  owner  may  be  enjoined 
from  excavating  under  the  sidewallc  ad- 
joining his  property  in  such  a  way  as  to 
interfere  with  electric  conduits  rightfully 
there.  Alleglieny  County  Light  Co.  v.  Booth, 
9:  404,  66  Atl.  72,  216  Pa.  564. 

370.  Equity  has  no  jurisdiction  of  a  suit 
to  enjoin  a  municipality  from  maintaining 
an  illegally  opened  highway  over  private 
property  and  recover  damages  for  injuries 
caused  thereby,  since  there  is  an  adequate 
remedy  at  law  by  an  action  of  ejectment, 
even  though  the  municipality  claims  only 
an  easement  in  the  property.  Le  Blond  v. 
Peshtigo,  25:  511,  123  N.  W.  157,  140  Wis. 
604. 

371.  The  mere  fact  that  municipal  au- 
thorities who  have  opened  a  highway  across 
private  property  without  right  threatened  to 
tear  down  fences  which  the  owner  should 
erect  to  close  the  way  is  not  suflBcient  to 
give  equity  jurisdiction  of  a  suit  to  enjoin 
further  use  of  the  way,  on  the  theory  that 
it  will  thereby  prevent  a  multiplicity  of 
suits.  Le  Blond  v.  Peshtigo,  25:  511,  123 
N.  W.  157,  140  Wis.  604. 

372.  There  is  no  adequate  remedy  at  law 
which  will  prevent  the  issuance  of  an  in- 
junction to  remove  a  dam  which  will  in- 
jure a  bridge  about  $25  a  year.  Bristol 
v.  Palmer,  31:  881,  74  Atl.  332,  83  Vt.  54. 

373.  The  rule  that  the  law  does  not  care 
for  trifles  does  not  apply  to  prevent  the 
issuance  of  an  injunction  against  the 
maintenance  of  a  dam  which  will  damage 
a  public  bridge  about  $25  per  year.  Bristol 
v.  Palmer,  31 :  881,  74  Atl.  332,  83  Vt.  54. 
Parks. 

374.  The  establishment  by  a  city  under 
statutory  authority  of  a  pesthouse  in  a  city 
building  located  in  a  park,  cannot  be  en- 
joined at  the  suit  of  one  occupying  nearby 
premises  solely  on  the  ground  that  such  use 
diverts  the  park  to  an  illegal  purpose,  where 
the  park  is  public  property,  having  been 
given  by  dedication  wliich  did  not  limit  its 
use.  Manhattan  v.  Hessin,  25:  228,  105 
Pac.  44,  81  Kan.  153. 

Closing  of  higliway. 

Temporary  injunction,  see  infra,  415. 

375.  The  owner  of  property  abutting  on  a 
street,  near  a  portion  which  the  municipal- 
ity is  attemjiting  to  vacate,  cannot  main- 
tain a  suit  to  enjoin  such  act  merely  be- 
cause it  will  depreciate  the  value  of  his 
property  more  than  other  property  in  the 
city.  John  K.  Cummings  Realty  &  Invest. 
Co.  V.  Deere  &  Co.  14:822,  106  S.  W.  496, 
208  Mo.  66. 

376.  A  municipal  corporation  may  be  en- 
joined from  closing  an  alley  giving  an  abvit- 
ting  property  owner  access  to  and  from  the 
street,  by  constructing  a  sidewalk  across 
it,  and  making  it  a  penal  offense  to  drive 
across  the  sidewalk.  Crawford  v.  Marion, 
35:  193,  69  S.  E.  763,  154  N.  C.  73. 

(Annotated) 
Digest  1-52  I,.R.A.(N.S.) 


Injury  to  lateral  support  of  ]iigli\ray. 

See  also  supra,  21. 

377.  An  incorporated  village  having  ex- 
clusive control  of  its  highways  may  main- 
tain a  suit  in  equity  to  restrain  excavation 
of  adjacent  lands  so  as  to  affect  the  lateral 
support  and  cause  or  threaten  the  subsidence 
of  a  highway.  Haverstraw  v.  Eckerson,  20: 
287,  84  N.  E.  578,  192  N.  Y.  54. 
Structures  and  encroacliments  in  gen- 
eral. 

Against  maintenance  of  cellarvvay  in  alley, 
see  Alleys,  3. 

Right  of  abutting  owner  to  enjoin  erec- 
tion of  lamp  standard  in  highway,  see 
Highways,  31. 

Private  action  to  enjoin  obstruction  of 
highway,  see  Nuisances,  84-87. 

378.  A  municipal  corporation  will  be  en- 
joined, at  the  instance  of  an  abutting  prop- 
erty owner,  from  erecting  in  a  public  street 
a  building  to  contain  an  electric-light  plant, 
and,  if  it  proceeds  with  the  erection  after 
the  suit  is  begun,  it  will  be  required  to  re- 
move such  part  of  the  structure  as  it  has 
completed.  McIUhinny  v.  Trenton,  10:  623, 
111  N.  W.   1083,  148  Mich.  380. 

379.  A  town  will  be  enjoined  from  inter- 
fering with  steps  placed  upon  the  sidewalk 
by  a  particular  individual  to  afford  neces- 
sary access  to  his  abutting  building,  where 
they  do  not  unreasonably  or  materially  in- 
terfere with  the  public  use  of  the  walk,  and 
the  presence  of  such  steps  upon  the  walk  is 
usual  and  customary  within  the  municipal- 
ity. Pickrell  v.  Carlisle,  24:193,  121  S. 
W.  1029,  135  Ky.  126.  (Annotated) 
Telephone  line. 

Mandatory  injunction,  see  supra,  38. 
See  also  Nuisances,  100. 

380.  Failure  of  the  owner  of  the  fee  to 
object  to  the  construction  of  a  telephone 
line  in  a  highway  and  to  take  steps  to  ef- 
fect its  removal,  for  less  than  the  limita- 
tion period,  does  not  deprive  hira  of  the 
right  to  enjoin  the  maintenance  of  the  line. 
Burrall  v.  American  Teleph.  &  Teleg.  Co. 
8:  1091,  79  N.  E.  705,  224  111.  266. 

(Annotated) 

381.  Injunction  lies  to  prevent  a  tele- 
phone company  from  attempting  to  con- 
struct and  maintain  its  line  upon  a  rail- 
road right  of  way,  where  its  acts  in  so 
doing  are  unlawful.  Canadian  P.  R.  Co. 
V.  Moosehead  Teleph.  Co.  29:  703,  76  Atl- 
885,  106  Me.  363. 

Elevated  railroads. 

Against  operation  of  railroad  in  street, 
see  Estoppel,  76. 

Street   railways. 

Against  crossing  a  steam  railroad  by  inter- 
urban  railroad,  see  Railkoads,  35. 

382.  After  the  repeal  by  the  council  of  a 
town,  pursuant  to  notice,'  of  an  ordinance 
granting  a  street  railway  privilege  in  a 
street,  the  railway  company  may.  by  injunc- 
tion, prevent  the  town  authorities  from  re- 
moving or  disturbing  its  track,  if  no  cause 
of  forfeiture  exists,  or  the  circumstancea 
shown  are  such  as  to  call  for  the  exerciso 
of   equity  jurisdiction  to   relieve   from   for-( 


1520 


INJUNCTION,  I.  m. 


feiture.     Wheelincr  &  E.  G.  R.  Co.  v.  Tria- 

delphia,  4:  321,  52  S.  E.  499,  58  W.  Va.  487. 

As  to  railroad  tracks. 

Estoppel  to  claim  injunctive  relief  against 
maintenance  of  switch,  in  street,  see 
Estoppel,   114. 

To  restrain  railroad  company  from  enter- 
ing upon  highway  under  permit  from 
municipal  authorities,  see  Highways, 
402. 

Against  operation  of  railroad  in  street,  see 
Limitation  of  Actions,  08,  69;  Nui- 
sance, 30,  76,  123,  132,  187,  191. 

383.  One  purchasing  property  abutting  on 
a  street  in  which  a  railroad  is  in  operation 
will  not  be  permitted  to  enjoin  the  use  of 
the  tracks  in  a  proper  manner.  Staton  v. 
Atlantic  Coast  Line  R.  Co.  17:  949,  61  S.  E. 
455,  147  N.  C.  428. 

Storage   of  cars  in   street. 

384.  The  use  of  a  railroad  track  laid  in  a 
public  street  for  the  storage  of  cars  and  de- 
livery of  freight  from  the  cais  to  merchants 
gives  an  abutting  owner  whose  property  is 
injured  thereby  a  right  to  injunction  and 
damages.  Staton  v.  Atlantic  Coast  Line  R. 
Co.  17:  949,  61  S.  E.  455,  147  N.  C.  428. 
Speed  of  trains. 

385.  An  abutting  property  owner  cannot 
enjoin  the  running  of  trains  in  a  public 
street  at  a  speed  prohibited  by  the  municipal 
ordinance,  since  his  remedy  by  appeal  to  the 
municipal  autliorities,  or  to  a  magistrate, 
is  adequate.  Staton  v.  Atlantic  Coast  Line 
R.  Co,  17:  949,  61  S.  E.  455.  147  N.  C.  428. 
Street  railway  across  railroad. 

_  Against  construction  of  interurban  elec- 
tric railroad  across  track  of  steam 
railroad,  see  Appeal  and  Errok,  721. 

Effect  of  demurrer  to  answer,  see  Pijead- 

.,      ING,   653. 

m.  .4s  to  patents,  copyrigJits,  trade- 
marks, tradenames,  and  imitations. 

(See  also  same  heading  in  Digest  L.B.A. 

_  TlA)         • 

Patents,,  ,,.,  .Tf      r,'      c^-.r!      ,..,1!.     ,r,i    A       0 

Injunction  against  suit  for  infringement, 
see  supra,  254. 

Sufficiency  of  plea  in  action  to  enjoin  in- 
fringement of  patent,  see  Pleading, 
508. 

See  also   supra,   19. 

Copyright. 

386.  A  notice  by  a  book  publisher  to  deal- 
ers that  the  book  must  not  be  sold  at  iess< 
than  a  specified  net  retail  price,  violation 
of  which  will  be  treated  as  infringement  of 
the  copyright,  will  not  entitle  the  publisher 
to  an  injunction  and  accounting  against  ,\ 
dealer  who  does  not  obey  the  notice,  on  tlio 
theory  that  purchase  of  books  completed  a 
contract  to  maintain  the  price,  since  the  only 
penalty  which  he  can  be  assumed  to  have 
assented  to  is  the  stated  one  of  having  liis 
act  treated  as  an  infringement  of  the  copy 
right  law.  l^nbba-Merrill  Co,  v.  Straus,  15: 
766,  147  Fed.  15,  77  C.  C.  A.  607. 
Digest  1-52  L.R.A.(N.S.) 


Trademark. 

Laches  as   bar  to  injunction,   see   Limita- 
tion of  Actions,  72., 
See   also   infra,   398,    401. 

387.  To  obtain  injunctive  relief  against 
one  who  is  manufacturing  and  selling  parts 
of  a  stove  bearing  complainant's  trademark, 
it  is  not  necessary  that  others  have  been  ac- 
tually deceived  thereby,  if  the  resemblance 
is  such  that  they  are  likely,  upon  compari- 
son, to  mistake  one  for  another ;  nor  is  it 
material  that  the  consumer  might  be  indif- 
ferent as  to  the  source  of  the  article  which 
he  obtains.  Reading  Stove  Works,  On,  P. 
&  Co.  V.  S.  M.  Howes  Co.  21:  979,  87  N.  E, 
751,  201  Mass.  437. 

Tradename. 

Against  corporate  officers  where  corpora- 
tion has  made  unfair  use  of  its  cor- 
porate name,  see  Corporations,   308. 

Accounting  for  profits  on  grant  of  injunc- 
tion, see  Equity,   129. 

See   also  infra,   444. 

388.  The  existence  of  an  intention  to  de- 
fraud need  not  be  shown  by  direct  evidence 
to  warrant  relief  against  unlawful  use  of 
tradenames  in  cases  of  unfair  competition. 
Atlas  Assur.  Co.  v.  Atlas  Ins.  Co.  15:  625, 
112  N.  W.  232,  138  Iowa,  228. 

389.  One  making  unlawful  use  of  a  trade- 
name or  device  cannot  avoid  an  injunction 
because  such  use  by  another  was  not  inter- 
fered with  by  complainant.  Atlas  Assur. 
Co.  v.  Atlas  Ins.  Co.  15:  625,  112  N.  W.  232, 
138  Iowa,  228. 

390.  A  foreign  insurance  company  author- 
ized to  do  business  in  the  state  may  enjoin 
a  domestic  insurance  company  from  using 
its  tradename  or  trade  device.  Atlas 
Assur.  Co.  V.  Atlas  Ins.  Co.  15:  625,  112  N. 
W.  232.  138  Iowa,  228.  (Annotated) 

391.  Insolvency  of  one  attempting  to  make 
fraudulent  use  of  another's  tradenam.e 
need  not  be  shown  to  entitle  the  lat- 
ter to  an  injunction.  Morton  v.  Morton,  i: 
660,  82  Pac.  664,  148  Cal.  142. 

392.  Successors  to  the  good  will  of  a  cor- 
poration which  had  been  conducted  in  the 
name  of  the  originator  of  its  product  may 
enjoin  a  corporation  organized  by  the  sons 
of  such  originator  under  their  family  name, 
for  the  manufacture  of  a  similar  product, 
from  using  the  name,  although  it  is  making 
no  effort  to  lead  the  public  into  a  belief 
(hat  the  goods  it  makes  are  the  product  of 
the  successor  of  the  original  corporation, 
if  the  namt.-  are  so  similar  that,  to  avoid 
misunderstanding  on  the  part  of  the  public, 
explanatory  statements  are  necessary  in 
connection  with  the  name,  which  are  not 
made.  Hall's  Safe  Co.  v.  Herring-lIall-Mar- 
vin  Safe  Co.  14:  1182,  146  Fed.  37,  76  C.  C. 
A.  495. 

393.  The  doctrine  of  unfair  business  com- 
petition will  not  entitle  a  corporation 
which  has  been  doing  a  local  retail  business 
in  one  city  of  a  state,  to  enjoin  the  use  of 
its  tradename  by  another  concern,  which 
lias  been  using  it  in  another  city,  when  it 
attempts  to  establish  itself  there,  where 
there  was  no  competition  between  the  two 
concerns   prior   to    such   attempt.      Eastern 


INJUNCTION,  II. 


1521 


Outfitting  Co.  V.  Manheim,  35:  251,  110  Pac. 
23,  59  Wash.  428.  (Annotated) 

394.  One  who  has  establislied  a  bvisiness 
under  a  particular  name,  which  he  places 
on  the  hats  of  his  agjents  to  inform  custom- 
ers that  they  are  his  representatives,  may 
enjoin  another  of  the  same  name,  who  has 
engaged  in  the  same  business,  from  using 
such  name  as  a  hat  label  in  such  a  way  as 
to  deceive  the  public  into  believing  that  the 
one  bearing  it  is  connected  with  the  former's 
business.  Morton  v.  Morton,  i:  660,  82  Pac. 
664,  148  Cal.  142.  (Annotated) 
Unfair  competition. 
By  wrongful  use  of  tradename,  see  supra, 

388-394. 
See  also  Tradename,   13;    Unfaib  Compe- 
tition,   2,    3. 

395.  Upon  the  expiration  of  a  copyright 
upon  a  name  used  to  distinguish  a  book  pub- 
lished by  the  owner  of  the  copyright,  rival 
publishers  have  no  right  to  deceive  purchas- 
ers into  the  belief  that  books  sold  by  them 
under  that  name  are  published  by  its  for- 
mer owner,  and  may  be  enjoined  from  so 
doing.  G.  &  C.  Merriam  Co.  v.  Ogilvie, 
16:  549/159  Fed.  638,'  88  C.  C.  A.  596. 

3!)G.  A  manufacturer  of  wine  who  has 
put  up  his  product  under  a  name  composed 
of  the  common  Italian  word  "Tipo,"  signi- 
fying type,  and  another  word  signifying  the 
kind  of  the  wine,  cannot  enjoin,  on  the 
ground  of  unfair  competition,  the  use  of 
such  word  by  another  manufacturer,  in  con- 
nection with  words  signifying  other  kinds 
of  wine,  wheVe  the  packages  and  labels  are 
entirely  difl'erent,  although  his  wine  has 
become  known  to  the  trade  as  Tipo  White 
and  Tipo  Ped,  according  to  its  color, 
Italian  Swiss  Colony  v.  Italian  Vineyard 
Co.  32:  439,  110  Pac.  913,  158  Cal.  252. 

(Annotated) 

397.  One  who  manufactures  an  unpatent- 
ed article  for  the  market,  arranging  the 
parts  to  the  best  advantage,  and  giving  it  a 
form  which  is  most  effective  and  economical 
to  manufacture  and  using  an  unpainted 
material  which  is  best  adapted  to  the  pur- 
pose, cannot  enjoin  the  use  by  a  subse- 
quent manufacturer  of  the  identical  com- 
bination of  mechanical  devices,  form,  and 
material,  if  he  uses  a  different  name  plate 
so  as  to  distinguish  the  origin  of  manu- 
facture. Pope  Automatic  Merchandising 
Co.  V.  McCrura-Ilowell  Co.  40:  463,  191  Fed. 
979.  112  C.  C.  A.  391. 

39'8.  One»cannot  be  enjoined  from  making 
and  selling  parts  for  a  stove  upon  which  an- 
other has  placed  his  trademark,  if  they  are 
free  from  marks  which  would  infringe  such 
trademark.  Reading  Stove  Works,  Orr,  P. 
&  Co.  V.  S.  M.  Howes  Co.  21:  979,  87  N.  E. 
751,  201   Mass.  437. 

399.  One  who  has,  by  a  long  course  of  busi- 
ness, established  a  trade  in  an  article  such 
as  molding  sand,  by  the  use  of  a  numeral 
in  connection  with  the  name  of  the  town  in 
which  the  sand  is  mined,  to  indicate  a  par- 
ticular grade,  may  enjoin  the  use  of  the 
same  combination  by  a  rival  who  is  at- 
tempting to  make  use  of  it  in  such  a  way 
as  to  lead  the  public  to  believe  that  the 
Digest  1-52  L.R.A.(N.S.>  9a 


sand  offered  by  him  is  in  fact  that  sold  by 
complainant.  Newport  Sand  Bank  Co.  v. 
Monarch  Sand  Min.  Co.  34:  1040,  137  S.  W. 
784.  144  Ky.  7.  (Annotated) 

400.  An  injunction  to  restrain  a  person 
and  his  agents  from  representing  themselves 
to  be  connected  with  another's  'jusiness, 
and  from  wearing  his  badge  on  their  hats, 
is  prohibitive,  and  not  mandatory,  and 
therefore  may  be  granted  pendente  lite. 
Morton  v.  Morton,  i:  660,  82  Pac.  664,  148 
Cal.  142. 
Misleading    or    false    representations 

as  defense. 

401.  It  is  essential  that  the  owner  of  a 
trademark  who  applies  for  an  injunction  to 
restrain  a  competitor  from  injuring  his 
property  by  making  false  representations 
should  not,  in  his  trademark  or  his  adver- 
tisements and  business,  be  himself  guilty  of 
any  false  or  misleading  representations;  but 
not  every  exaggerated  recommendation  of 
one's  own  goods  is  to  be  regarded  as  such  a 
false  representation  as  will  lead  a  court  of 
equity  to  withhold  relief,  but  rather  such 
materially  fraudulent  statements  as  to  the 
character,  quality,  and  make  of  the  goods 
as  tend,  if  untrue,  to  deceive  the  public  to 
its  injury.  Regent  Shoe  Mfg.  Co.  v.  Haaker, 
4:  447,  106  N.  W.  595,  75  Neb.  426. 


//. 


Preliminary  and  interlocutory  in- 
junctions.        ,)     j,   .  ;,. 


(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Right  to  appeal  from  order  dismissing  bill 
seeking  injunction  after  refusing  to 
enlarge  preliminary  injunction,  see 
Appeal  and  Eerob,  15. 

Conditions  of  appeal  from  order  granting 
temporary  injunction,  see  Appeal  and 
Error,  126. 

Discretion  as  to  granting,  see  Appeal  and 
Error,   629,   631-637. 

Decision  on  appeal  from  order  continuing 
or  refusing  interlocutory  injunction  as 
law  of  case  on  appeal  from  decree  re- 
fusing to  make  injunction  permanent, 
see  Appeal  and  Error,  1664. 

Contempt  in  violating,  see  Contempt,  13, 
91. 

Original  jurisdiction  of  appellate  court  as 
to,  see  Courts,  232. 

Criminal  liability  for  violation  of  statute 
during  existence  of  preliminary  order 
enjoining  its  enforcement,  see  Crim- 
inal Law,  5. 

Laches  to  bar  right  to,  see  Limitation  of 
Actions,  71. 

See  also  supra,  2,  336,  400;  infra,  436,  437. 

402.  Tlie  function  of  a  preliminary  injunc- 
tion, whether  prohibitory  or  mandatory,  be- 
ing to  preserve  the  status  quo  until  final 
hearing,  the  court  in  awarding  such  an  in- 
junction must  determine  provisionally  what 
the  status  quo  is;  and  an  erroneous  conclu- 
sion as  to  it,  resulting  in  the  award  of  an 
injunction  not  warranted  by  the  allegations 
of  the  bill,  but  within  the  power  of  the  court 


1522 


INJUNCTION,  II. 


to  award  upon  sufficient  allegations,  is  ju-  i 
dicial  error,  but  not  an  act  in  excess  of  ju-  I 
risiliction.  State  ex  rei.  Powhatan  Coal  &  i 
C.  Co.  V.  Ritz,  9:  1225,  5U  S,  E.  257,  60  W.  I 
Va.  395. 

403.  The  allowance  of  a  temporary  in- 
junction rests  largely  in  judicial  discretion, 
having  regard  to  the  relative  injury  and  in- 
convenience which  may  be  likely  to  result 
to  the  parties  respectively,  in  view  of  the 
r'acls  of  the  particular  case,  from  the  al- 
lowance or  disallowance  of  the  writ,  Eke- 
berg  V.  Mackay,  35:  909,  131  N.  W.  787, 
114  Minn.  501. 

404.  Where  the  verified  statements  of 
fact  submitted  on  a  motion  for  a  tempo- 
rary injunction  are  conflicting,  whether 
such  statements  are  contained  in  affidavits 
or  pleadings,  the  court  may  decide  what 
facts  are  made  to  appear  thereby,  for  the 
purpose  of  determining  whether  sufficient 
grounds  exist  for  a  temporary  injunction. 
Ekeberg  v.  Mackay,  35:  909,  131  N.  W.  787, 
114  Minn.  501. 

405.  Although  some  of  the  facte  stated  in 
a  complaint  for  an  injunction  are  denied  by 
affidavits  presented  on  behalf  of  defendant, 
the  court  may,  nevertheless,  grant  a  prelimi- 
nary injunction,  if  the  questions  of  fact 
raised  are  purely  for  the  consideration  of 
the  court.  Hathorn  v.  Natural  Carbonic 
Gas  Co.  23:  436,  87  N.  E.  504,  194  N.  Y.  326. 

406.  A  temporary  injimction  will  not 
ordinarily  be  granted,  if  the  parties  are  in 
dispute  concerning  their  legal  right,  until 
the  right  is  established,  especially  if  the 
legal  or  equitable  claims  asserted  raised 
questions  of  a  doubtful  or  unsettled  char- 
acter. Beidenkopf  v.  Des  Moines  L.  Ins. 
Co.  46:  290,  142  N.  W.  434,  160  Iowa,  629. 

407.  The  mere  fact  that  a  complainant 
asks  for  an  injunction  only  in  a  suit  for  re- 
lief does  not  entitle  him  as  a  matter  of 
right  to  a  restraining  order  until  the  trial, 
unless  he  states  facts  which  appear  to 
constitute  a  cause  of  action  for  an  injunc- 
tion, and  it  appears  from  the  whole  case 
that  an  injunction  is  reasonably  necessary 
to  protect  the  legal  rights  of  complainant 
pending  the  litigation.  Childs  v.  Columbia, 
34:  542,  70  S.  E.  296,  87  S.  C.  566. 

408.  A  temporary  injunction  will  not  be 
granted  in  an  action  to  enforce  the  specific 
performance  of  a  contract  unless  the  allega- 
tions of  the  bill  of  complaint  warrant  a  de- 
cree of  specific  performance,  or  unless  it  also 
appears  that  an  injunction  is  appropriate 
and  just.  Taylor  v.  Florida  East  Coast  R. 
Co.  16:  307,  45  So.  574.  54  Fla.  635. 

409.  An  ad  interim  injunction  is  properly 
granted  to  restrain  a  common  carrier  from 
further  discriminations  against  a  shipper 
of  lumber,  where  the  evidence  shows  that 
discriminations  have  been  made  in  favor  of 
shippers  of  cotton  by  giving  them  advance 
bookings  for  particular  vessels,  and  refus- 
ing like  privileges  to  the  shipper  of  lumber. 
Ocean  Steamship  Co.  v.  Savannah  Locomo- 
tive Works  &  S.  Co.  20:  867,  63  S.  E.  577, 
131  Ga.  831. 

410.  One  Avho  has  abandoned  his  right  to 
maintain  a  mill  pond,  but  who  has  a  right 
to  reconstruct  it  by  the  exercise  of  ad  quod 
Digest   1-52  I,.R.A.(N.S.) 


damnum  proceedings,  should  not  be  en- 
joined permanently  from  taking  steps  to 
reconstruct  the  dam,  but  only  until  he  liaa 
secured  the  right  to  do  so  by  proper  pro- 
ceedings. Gross  V.  Jones,  32:  47,  122  N.  W. 
681,   85  Neb.   77. 

411.  Minnesota  Laws  1913,  chap  502, 
Gen.  Stat.  1913,  §§  8717-872G,  relating  to 
the  forfeiture  of  property  found  in  a  bawdy- 
house,  do  not  contemplate  the  determination 
of  rights  of  claimants  to  personal  property 
used  in  the  house  on  application  for  a 
temporary  injunction  to  restrain  further 
operation  of  the  house  and  the  removal  of 
the  furniture  and  personal  property  em- 
ployed in  the  maintenance  of  the  house. 
State  ex  rel.  Robertson  v.  Lane,  52:  932,  147 
N,  W.  951,  126  Minn.  78. 

412.  The  granting  of  a  preliminary  injunc- 
tion, without  notice,  merely  restraining 
a  coke  manufacturing  company  from  dis- 
posing of  its  product  otherwise  than  through 
the  agency  of  the  complainant,  in  violation 
of  an  alleged  contract,  on  a  bill  setting  up 
colorable  ground  therefor,  is  not  beyond  the 
power  of  a  court  of  equity,  however  erron- 
eous the  act  awarding  it  may  be.  State  ex 
rel.  Powhatan  Coal  &  C.  Co.  v.  Ritz,  9:  1225, 
56  S.  E.  257,  60  W.  Va.  395.       (Annotated) 

413.  One  whom  a  decedent  agreed  to  adopt 
as  a  child,  but  failed  to  do  so,  therefore 
leaving  her  without  occupying  the  legal 
status  of  an  heir,  so  that  she  would  be  en- 
titled to  contend  in  the  court  of  ordinary 
with  the  administrators  the  right  to  ad- 
minister the  estate  of  their  intestate,  is, 
where  the  personal  estate  is  sufficient  to 
pay  all  debts,  entitled  to  an  injunction  re- 
straining the  sale  of  the  real  estate,  and 
preserving  the  status  thereof  pending  the 
determination  of  her  equitable  claim,  based 
upon  the  agreement  to  adopt.  Crawford  v. 
Wilson,  44:  773,  78  S.  E.  30,  139  Ga.  654. 

414.  An  officer  claiming  in  good  faith,  tiie 
right  to  possession  of  an  office  until  the 
right,  de  jure,  shall  have  been  determined, 
if  in  imminent  peril  or  forcible  disturbance 
by  an  adverse  claimant  or  those  acting  in 
his  support,  may  maintain  an  action  in 
equity  to  prevent  such  disturbance,  and 
may,  and  should,  have  temporary  injunc- 
tive protection  pending  determination  of 
the  right  to  permanent  immunity  from 
forcible  dispossession.  'Ekern  v.  McGovern, 
46:  796,  142  N.  W.  595,  154  Wis.  157. 

415.  A  temporary  order  restraining  the 
closing  of  an  alley  furnishing 'access  be- 
tween abutting  property  and  a  public  street 
maj'  be  refused  where  another  means  of 
access  has  been  provided.  Crawford  v.  Ma- 
rion,  35:  193,   69   S.   E.   763,   154  N.  C.   73. 

416.  A  telephone  company  will  not  be 
denied  a  temporary  injunction  to  prevent 
connection  with  its  line,  on  the  theory  that 
it  bought  a  lawsuit  and  undertook  to  make 
itself  judge  between  two  claimants,  where 
the  owner  of  a  farm  on  its  route,  who  was 
a  member  of  the  company,  and  who,  by  rea- 
son of  his  membership,  had  a  right  to  con- 
nect a  telephone  with  the  line  and  to  sell 
the  right  with  the  farm  or  to  the  company, 
failed  to  agree  with  his  grantee  as  to  the 


INJUXCTION,  III. 


1523 


right  to  the  telephone,  which  was  claimed 
under  the  warranty  deed  of  the  farm,  and 
sold  the  right  under  his  contract  to  the 
company.  Cantril  Teleph.  Co.  v.  Fisher,  42: 
1021,  138  N.  W.  436,  157  Iowa,  203. 

417.  A  consumer  may,  by  filing  an  in- 
demnity bond,  enjoin  a  city  which  is  fur- 
nishing its  inhabitants  with  water,  from 
shutting  off  his  supply  under  a  regulation 
providing  that,  .:'  any  party  shall  refuse 
or  neglect  to  pay  the  rent  charged  when 
due,  the  water  shall  be  turned  oflf  until 
all  back  rent  and  damages  shall  be  paid, — 
pending  a  determination  by  the  courts  of 
the  correctness  of  the  charge,  where  he  has 
good  grounds  for  disputing  the  correctness 
thereof,  and  especially  where  to  turn  off 
the  water  would  result  in  irreparable  in- 
jury. Mansfield  v.  Humphreys  Mfg.  Co. 
31:  301,  92  N.  E.  233,  82  Ohio  St.  216. 
Dissolution  and  continuance. 
Time  for  appeal  from  order  continuing,  see 

Appeal  and  Ekbob,  138. 
Review  of  discretion  as  to,  see  Appeal  and 

Erbob,  635. 
Reversible    error    in    refusing    to    continue 

temporary  injunction,  see  Appeal  and 

Error,  635a. 
See  also  infra,  429,  432. 

418.  A  motion  to  dissolve  a  preliminary 
injunction  should  be  sustained  where  there 
is  no  equity  in  the  bill.  Pocahontas  Coke 
Co.  V.  Powhatan  Coal  &  C.  Co.  10:  268,  56 
S.  E.  264,  60  VV.  Va.  508. 

419.  Upon  the  hearing  of  a  motion  to  dis- 
solve an  injunction  before  answer,  the  al- 
legations of  the  bill  must  be  taken  as  true; 
and  an  affidavit  filed  at  the  hearing  by  the 
defendant,  tending  to  show  the  existence  of 
facts  not  disclosed  by  the  bill,  01  facts  ex- 
planatory of  the  allegations  of  the  bill, 
should  not  be  considered.  Pocahontas  Coke 
Co.  V.  Powhatan  Coal  &  C.  Co.  10:  268,  56 
S.  E.  264,  60  W.  Va.  508. 

420.  A  verdict  for  defendant,  not  carried 
into  judgment  in  an  action  by  one  out  of 
possession  to  recover  real  estate  the  title 
to  which  is  in  dispute,  does  not  justify  dis- 
solution of  an  injunction  which  has  been 
granted  to  protect  the  timber  standing  on 
the  property.  Pardee  v.  Camden  Lumber 
Co.  43:  262,  73  S.  E.  82,  70  W.  Va.  68. 

421«  The  right  to  have  a  preliminary  in- 
junction continued  to  the  hearing  exists 
only  when  the  facts  constituting  the  cause 
of  action  are  in  controversy,  not  when  the 
plaintifls  have  shown  no  right  to  maintain 
the  action.  jMerrimon  v.  Southern  Paving 
&  Constr.  Co.  8:  574,  55  S.  E.  3G6,  142  N.  C. 
539. 

422.  An  injunction  to  prevent  the  levy- 
ing of  a  tax  to  support  a  proposed  school 
district  should  be  continued  until  the  hear- 
ing, if  there  is  a  substantial  controversy  as 
to  whether  or  not  the  proposition  to  or- 
ganize the  district  was  carried  by  the  requi- 
site vote.  Gill  V.  Board  of  Comrs.  43:  293, 
76  S.  E.  203,  160  N.  C.  176. 

,'  III.  Procedure. 

(See   also   same  heading   in  Digest   L.R.A. 

1-10.) 
Digest  1-52  Ii.R.A.(N.S.) 


Appeals  in  injunction  cases,  see  Appeal 
and  Error. 

Question  whether  appeal  should  be  taken  to 
civil  or  criminal  court,  see  Appeal 
AND  Error,  75. 

Misjoinder  of  causes  of  action  in  bill  for, 
see  Appeal  and  Error,  760. 

Costs  on  appeal,  see  Appeal  and  Error, 
1638. 

Conditions  precedent  to  suit  against  coun- 
ties, see  Counties,  19. 

Retaining  jurisdiction,  see  Equity,  I.  h. 
"Evidence  in  injunction  cases,  see  Evidence. 

Necessity  of  showing  irreparable  injury, 
see  Evidence,  641. 

Evidence  in  suit  to  enjoin  shooting  over 
plaintiff's  land  from  covers  or  blinds, 
see  Evidence,  1682. 

Pleading  in  injunction  suit,  see  Pleading, 
390,  430-432,  508. 

Variance  between  pleading  and  proof,  see 
Evidence,  2469. 

Injunctive  relief  by  way  of  cross  bill,  see 
Equitt,  133. 

Cross  bill  in  suit  for,  see  Pleading,  542, 
543.  [,,, 

Demurrer  to  bill,  see  Pleading,  645. 

Determination  of  constitutionality  of  stat- 
ute on  demurrer  to  answer  in  action 
for,  see  Pleading,  653. 

Amendment  of  bill  to  enjoin,  see  Pleading, 

93. 
Right  to  jury  trial,  see  Jury,  23-25. 

Cross-examination  of  witnesses,  see  Wit- 
nesses, 87. 

423.  In  an  original  proceeding  by  the  state 
in  the  supreme  court,  for  an  injunction, 
where  the  state  insists  that  the  returns  ' 
state  no  facts  constituting  a  defense,  the  al- 
legations of  the  petition  will  be  taken  as 
true  only  so  far  as  they  are  not  denied  by 
the  returns,  while  the  allegations  of  the  re- 
turns intended  as  a  defense  will  be  taken  as 
true.  State  ex  rel.  Lyon  v.  Columbia  Wa- 
ter Power  Co.  22:  435,  63  S.  E.  884,  82  S.  C. 
181. 

424.  An  injunction  will  be  granted  on  a 
complaint  which  is  not  supported  by  testi- 
mony, if  it  alleges  facts  stating  a  cause  of 
action,  and  defendant  fails  to  establish  the 
aflirmative  defense,  which  is  necessary  to 
defeat  recovery,  and  which  is  controverted 
by  plaintiff's  reply.  Seaton  Mountain  E. 
L.  H.  &  P.  Co.  V.  Idaho  Springs  Invest.  Co. 
33:  1078,  111  Pac.  834.  49  Colo.' 122. 

425.  Where  the  rights  of  the  public  are 
involved  in  a  suit  to  enjoin  the  abstraction 
of  subterranean  waters  for  use  at  a  dis- 
tance, and  the  court  can  arrive  in  terms  of 
money  at  the  loss  which  local  landowners 
have  sustained,  -  n  absolute  injunction  will 
not  be  granted,  but  the  proceeding  will  bo 
regarded  as  one  to  secure  compensation  to 
the  local  owners  for  their  injury.  Newport 
V.  Temescal  Water  Co.  6:  1098,  87  Pac.  372, 
149  Cal.  531.  (Annotated) 

426.  The  question  of  the  proper  perform- 
ance of  a  street  improvement  contract  so  as 
to  justify  a  special  assessment  therefor  can- 
not be  raised  by  a  proceeding  to  enjoin  pay- 


1524 


INJUNCTION,  III, 


ment  for  the  work,  since  it  does  not  go  to 

the  town's  jurisdiction   in  the  matter,  but 

is  open  only  in  proceedings  to  confirm  the 

assessments.     O'Neill   v.   Auburn,   50:  1140, 

]35  Pac.  1000,  76  Wash.  207. 

Parties. 

Riglit  of  taxpayer  to  bring  injunction  suit, 

see  supra,  I.  j. 
Who  may  enjoin  nuisance,  see  Nuisances, 

II.  a. 
Unincorporated   labor   union    as   party   de- 
fendant, see  Associations,  5,  6. 
Injunction    suit    by    attorney    general,    see 

Attorney  General,  5,  9. 
To   restrain    monopoly,   see   Case,   8. 
Right  of  one  whose  only  title  is  under  tax 
deed  to  one  whose  heir  he  is,  to  enjoin 
one    holding    under    government    title, 
see  Cloud  on  Title,  22. 
Against  ultra  vires  act  of  corporation,  see 

Corporations,  269. 
Who  may  enjoin  violation  of  building  re- 
striction,   see   Covenants   and   Condi- 
tions, 98. 
Joinder   of    parties   plaintiff,    see  Pabties, 

153,  154. 
Parties  plaintiff,  see  Parties,  34-36,  38,  41, 

104,    1J2-114,    117,    125-136. 
Parties    defendant,    see    Parties,    160-162, 

167,  187,  191,  195. 
Right  of  state  to  bring  injunction  suit,  see 

State,  15. 
See  also  supra,  13,  102,  218,  334,  335. 

427.  Defect  of  parties  plaintiff  will  not 
deprive  a  court  of  jurisdiction  to  hear  an 
a,jpiitation  for  injunction,  or  justify  defend- 
ant in  ignoring  an  injunction  which  is 
granted.  Franklin  Union  No.  4  v.  People, 
4:  looi,  77  N.  E.  176,  220  111.  355. 
Afr  davits. 

429.  Under  a  statute  permitting  a  motion 
to  dissolve  an  injunction  before  answer,  affi- 
davits in  support  of  such  motion  are  to  be 
recorded  the  same  effect  in  ruling  upon  the 
motion  as  would  be  given  to  thf;  same  ma-'- 
ter  if  pleaded  in  a  formal  answer;  and  the 
absence  of  answer  will,  therefore,  not 
amount  to  a  confession  of  the  equities  al- 
leged in  the  bill.  H.  W.  Gos-ard  Co.  v. 
Crosby,  6:  H15,  109  N.  W.  483,  132  Iowa, 
155. 

^  rocess  or  notice. 

Sufficiency  of  service  of  process,  see  Writ 
and  Process,  18. 

Bond.  • 

When  right  of  action  on  bond  accrues,  see 
Action  or  Suit,  22. 

Suit  on,  for  attorneys'  fees,  see  Appeal 
and  Error,  699. 

Effect  of  discharge  in  bankruptcy  of  prin- 
cipal on  liability  of  surety  on  injunc- 
tion bond,  see  Bankruptcy,  156,   157. 

Measure  of  damages,  see  Damages,  III,  m. 

Liability  of  municipality  for  damages,  see 
Municipal  Corporations,  432,  433. 

Liability  of  surety  on,  see  Principal  and 
Surety,  7,  8.         o  .'r<ftK-j/r|(  •<rii    .,.• 

See  also  supra,  417.        ^;   ' 

430.  The  requirement  of  a  rule  of  court, 
that  an  injunction  bond  must  be  acknowl- 
Digest   1-52  L.R.A.(N.S.) 


edged  by  the  sureties  to  entitle  it  to  be  re- 
ceived and  filed,  cannot  be  waived  or  dis- 
pensed with  by  the  obligee,  since  it  ia  for 
the  benefit  of  both  parties.  Ilcndrv  v.  Cart- 
wright,  8:  1056,  89  Pac.  309,   14  N.   M.   72. 

431.  A  bond  in  an  injunction  suit  to  re- 
sti'ain  a  prosecuting  attorney  from  proceed- 
ing with  a  criminal  prosecution  may  proper- 
ly run  to  him  individually,  and  he  may 
maintain  an  action  thereon  ivs  an  individual. 
Littleton  v.  Burgess,  16:  49,  91  Pac.  832,  16 
Wyo.  58. 

432.  That  a  court  has  no  jurisdiction  to 
issue  an  injunction  does  not  make  unneces- 
sary the  employment  of  counsel  to  secure 
its  dissolution,  so  as  to  prevent  recovery  on 
the  injunction  bond  for  the  value  of  their 
services.  Littleton  v.  Burgess,  16:  49,  91 
Pac.  832,  16  Wyo.  58. 

433.  That  attorneys'  fees  necessary  to  se- 
cure the  dissolution  of  an  injunction  have 
not  actually  been  paid  does  not  preclude 
holding  the  injunction  bond  liable  for  the 
amount.  Littleton  v.  Burgess,  16:  49,  91 
Pac.  832,  16  Wyo.  58. 

434.  That  a  municipal  corporation  em- 
ploys regular  counsel  on  salary  does  not 
prevent  its  employing  special  counsel  to  as- 
sist in  the  defense  of  an  injunction  suit 
against  it  so  as  to  relieve  the  bond  condi- 
tioned to  satisfy  all  costs  and  damages 
wrongfully  resulting  from  the  suing  out  of 
the  injunction  from  liability  for  the  com- 
pensation of  such  counsel  if  the  injunction 
suit  is  dismissed.  Vicksburg  Waterworks 
Co.  V.  Vicksburg,  33:  844,  54  So.  852,  99 
Miss.  132.  (Annotated) 

435.  That  a  court  has  no  jurisdiction  to 
enjoin  a  prosecution  for  crime  does  not 
nullify  a  bond  given  in  a  proceeding  for  that 
purpose.  Littleton  v.  Burgess,  16:  49,  91 
Pac.  832,  16  Wyo.  58. 

436.  A  bond  to  support  an  interlocutory 
injunction  to  restrain  the  removal  of  wood 
from  land  claimed  by  plaintiff  is  not  lia- 
ble for  the  loss  of  the  wood  through  ita 
removal  from  the  property  by  a  stranger, 
since  the  injunction  does  not  change  the 
right  to  possession  of  the  wood.  Gobbi  v. 
Dilco,  34:  951,  111  Pac.  49,  113  Pac.  57,  58 
Or.  14.  (Annotated) 

437.  A  bond  to  support  a  temporary  in- 
junction against  the  removal  of  wood  from 
land  claimed  by  plaintiff  is  not  liable  for 
the  rental  value  of  a  vessel  which  had  been 
hired  to  remove  the  wood,  if  there  is  no 
proof  that  the  writ  was  ever  served.  Gobbi 
V.  Dileo,  34:  951,  111  Pac.  49,  113  Pac.  57^ 
58  Or.  14. 

438.  No  recovery  can  be  had  on  the  in- 
junction bond  upon  dismissal  of  the  suit  be- 
fore trial,  by  one  who,  having  no  right  to 
move  a  house  along  a  street,  is  enjoined 
from  tearing  down  the  overhead  wires  of  an 
electric  railway  company  operating  cars  in 
the  street,  and  from  obstructing  the  com- 
pany's track  for  that  purpose,  unless  he 
^hows  that  he  has  not  threatened  to  tear 
down  the  wires  or  obstruct  the  track.  Ft. 
Madison  Street  R.  Co.  v.  Hughes,  14:  448, 
114  N.  W.  10,  137  Iowa,  122. 

439.  One  wrongfully  enjoined  from  erect- 


INK;   INNKEEPER. 


1525 


ing  a  dwelling  is  not  precluded  from  recov- 
ering diimages  therefor  because  he  fails  to 
move  to  discharge  the  injunction,  where  the 
whole  controversy  is  over  the  right  to  erect 
the  building  because  defendant  is  of  negro 
blood,  and  the  injunction  is  not  merely 
ancillary  to  or  in  aid  of  the  main  issue. 
Stone  V.  Hunter  Tract  Improv.  Co.  39:  180, 
122  Pac.   370,   68   Wash.  28. 

440.  \Miere  no  bond  or  undertaking  is 
required  on  the  issuance  of  an  injunction 
there  can  be  no  liability  for  damages  sus- 
tained on  account  of  the  injunction,  unless 
the  injunction  was  obtained  maliciously,  and 
without  probable  cause.  Doyle  v.  Sand- 
point,  32:  34,  112  Pac.  204,  18  Idaho,  654. 
Dismissal. 
Dissolution  of  preliminary  or  interlocutory 

injunction,  see  supra,  418-422. 

Dismissal  of  suit  to  enjoin  construction  of 

^      line  fence  as  bar  to  action  to  establish 

boundary  line,  see  Judgment,  115-117. 

Decree. 

Inconvenience   as   ground   for   refusing,   see 

supra,  19-24. 
Right  to  appeal   from  decree,   see  Atpeal 

AND  Errob,  40,  41. 
Supersedeas  pending  appeal  from,  see  Ap- 
peal AND  Error,  107-110. 
Right  to  complain  that  decree  is  too  favor- 
able, see  Appeal  and  Error,  518. 
Review  of,  see  Appeal  and  Error,  696. 
Decision  on  former  appeal  as  law  of  case, 

see  Appeal  and  Error,  1664. 
As  to  costs,  see  Costs  and  Fees,  15. 
Judicial  notice  of  decree  granting,  see  Evi- 
dence, 9. 
Admissibility  of  judgment  enjoining  liquor 

nuisance,  see  Evidence,  772. 
Dismissal  without  prejudice,  see  Judgment, 

40. 
Effect  of  judgment  of  dismissal,  see  Judg- 
ment, 115-117. 
Effect  and  conclusiveness  of  decree,  see  Judg- 
ment, 153,   19B,  199,  243. 
Who  bound  bv  decree,  see  Judgment,  198, 

199,  230.  231,  232,  243. 
Sufficiency  of  findings  to  support  judgment, 

see  Judgment,  41. 
Revival  of  decree,  see  Judgment,  321. 
Prohibition  to  restrain  enforcement  of  void 

injunction  order,  see  Prohibition,  16. 
Contempt   in    disobeying,    see   Appeal   and 
Error,  109;    Contempt,  13,  41-59,  65, 
66,  71,  72,  76,  88-91,  99,  104,  106-109; 
Judgment,  275. 
Scope  of  inquiry  on  appeal  from  conviction 
for  violating,  see  Appeal  and  Error, 
493. 
Question  whether  fine  imposed  for  violation 
of,  can  be  paid  to  complainant  in  satis- 
faction  of   damages   and  expenses,  see 
Appeal  and  Error,  556. 
Right  to  fine  corporation  for  violation  of, 

see  Corporations,  116. 
Prohibition  to  restrain  proceedings  for  vio- 
lation of,  see  Prohibition,  18,  19. 

441.  A  judsrraent  enjoining  the  perform- 
ance of  a  contract  which  has  already  been 
performed  is  irregular.  Famsworth  v.  Wil- 
bur, 19:  320,  95  Pac.  642,  49  Wash.  416. 

442.  Upon  a  petition  to  enjoin  a  town 
Digest   1-52  I..R.A.(N.S.) 


from  carrying  out  an  illegal  contract  con- 
sisting of  the  satisfaction  without  consider- 
ation of  a  judgment  recovered  by  it,  which 
has  in  fact  been  done,  a  court  of  equity  may 
set  aside  the  satisfaction  and  restrain  the 
parties  from  carrying  out  the  agreement. 
Farnsvvorth  v.  Wilbur,  19:  320,  95  Pac.  642, 
49  Wash.  416. 

443.  An  injunction  against  a  boycott 
should  be  limited  to  acts  of  commission. 
American  Federation  of  Labor  v.  Buck's 
Stove  &  Range  Co.  32:  748,  33  App.  D.  C. 
83. 

444.  An  insurance  company  whose  trade- 
name and  trade  device  are  being  unlawfully 
used  by  another  insurance  company  slimiid 
not  be  confined  to  an  injunction  restraining 
such  use  "in  its  present  form,"  but  is  enti- 
tled to  the  relief  without  limitation.  Atlas 
Assur.  Co.  V.  Atlas  Ins.  Co.  15:  625,  112 
N.  W.  232,  138  Iowa,  228. 

445.  An  injunction  prohibiting  one  who 
has  sold  the  good  will  of  a  dental  business 
from  re-engaging  in  that  business  within 
the  limits  of  the  city  sufficiently  protects 
the  rights  of  the  purchaser,  although  his 
patients  have  been  secured  from  towns  out- 
side the  city.  Foss  v.  Iloby,  lo:  1200,  81 
N.  E.  199,  195  Mass.  292. 

446.  The  possible  serious  injury  to  the 
public  from  an  absolute  cessation  of  inter- 
state commerce  in  petroleum  and  its  prod- 
ucts by  the  agencies  embraced  in  a  holding 
company  controlling  the  oil  industry,  in 
violation  of  the  anti-trust  act  of  July  2, 
1890,  requires  that  upon  dissolving  the 
holding  company,  the  subsidiary  corpora- 
tions should  not  be  enjoined  from  carrying 
on  interstate  commerce  until  tiie  dissolu- 
tion of  the  combination  should  be  effected, 
in  accordance  with  the  decree,  by  the  trans- 
fer back  to  the  stockholders  of  the  sub- 
sidiary corporations  of  the  stock  which  had 
been  turned  over  to  the  holding  company 
in  exchange  for  its  own  stock.  Standard  Oil 
Co.  V.  United  States,  34:  834,  31  Sup.  Ct. 
Rep.  502,  221  U.  S.  1,  55  L.  ed.  619. 


INK. 

Injury  to  clothing  of  customer  by  ink  run- 
ning from  counter,  see  Negligence,  77. 


INNKEEPERS. 


I.  In  general,  1—3. 
II.  Who  are  guests,   4—10. 
III.  Rights   of  and   liahility  to  guests, 
11-31. 

a.  In  general,   11—15. 

b.  For   loss   of  property,    16—27. 

c.  For  in.jut^es   to  person  or  in- 

dignities to  guests,  28—31. 
IV.  Rights     of     persons     other     than 
guests,  32. 
V.  Lien,   33. 

Discrimination  in  ordinance  as  to  right  to 


1526 


INNKEEPERS,  I.,  II. 


maintain  billiard  or  pool  room,  see  Ac- 
tion OP,  Suit,  52. 

Constitutionality  of  regulations  as  to  keep- 
ing billiard  or  pool  tables,  see  Consti- 
TXJTIONAL  Law,  243,  692. 

Making  departure  of  guest  without  paying 
prima  facie  evidence  of  intent  to  de- 
fraud,  see   Co.NSTITUTIONAL   Law,   622. 

forbidding  soliciting  of  business  for  hotel 
at  railroad  stations,  see  Coxstitution- 
AL  Law,  688. 

Monopolistic  contract  between,  see  Con- 
tracts, 544. 

Liability  of  one  engaging  accommodations 
for  third  person  where  they  refuse  to 
accept  them,  see  Contracts,  630. 

Damages  for  breach  of  covenant  to  renew 
lease  of  property  used  for  hotel,  see 
Damages,  148,  689. 

Furnishing  of  intoxicating  liquor  to  guests 
on  Sunday  as  part  of  meals,  see  In- 
toxicating Liquors,  161. 

Limiting  hours  of  labor  of  women  in  hotels, 
■  see  Constitutional  Law,  308 ;  Mas- 
ter AND  Servant,  93. 

Saloonkeeper  as,  see  Saloonkeeper. 

J.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

1.  The  existence  of  hotels  in  a  city  a 
mile  away  does  not  establish  the  non-ne- 
cessity of  a  tavern  at  a  river  landing  where 
one  has  existed  for  thirty  years,  and  the  re- 
ceipts from  it,  exclusive  of  the  bar,  amount 
to  from  $16  to  $20  per  week,  and  a  number 
of  reputable  citizens  testify  to  its  necessity, 
although  there  is  testimony  to  the  contrary. 
Schneider  v.  Com.  20:  107,  111  S.  W.  303,  33 
Ky.  L.  Rep.  770. 

2.  One  is  not  shown  not  to  be  a  bona 
fide  tavern  keeper  by  the  fact  that  the  re- 
ceipts from  his  bar  are  in  excess  of  those 
from  the  tavern  proper.  Schneider  v.  Com. 
20:  107,  111  S.  W.  303,  33  Ky.  L.  Rep.  770. 

(Annotated) 

3.  The  change  by  a  hotel  keeper  who  has 
paid  a  hotel-license  fee  from  the  American 
to  the  European  plan  does  not  subject  him 
to  the  payment  of  an  additional  fee  as  a 
restaurant  keeper,  although  he  may  serve 
meals  to  persons  not  rooming  in  the  hotel, 
and  the  ordinance  defines  a  restaurant  as  a 
place  where  food  is  prepared  for  casual  cus- 
tomers, and  sold  for  consumption  therein. 
New  Gait  House  Co.  v.  Louisville,  17:  566, 
111  S.  W.  351,  129  Ky.  341.        (Annotated) 

II.  Who  are  guests. 

(See  also   same   heading  in  Digest  L.R.A. 

i-to.) 

Evidence  of  reputation  as  guest,  see  Evi- 
dence, 1545. 

4.  That  an  innkeeper  also  conducts  a 
bath  house  at  the  seashore,  where  the  general 
public,  as  well  as  guests  at  his  inn,  may  ob- 
tain the  use  of  bath  rooms  and  accessories 
to  the  bath,  is  not  sufficient  to  consti- 
Digest  1-52  Ii.R.A.(N.S,) 


tute  the  relation  of  innkeeper  and  g^est  be- 
tween him  and  persons  using  such  bath 
house.  Wa]pert  v.  Bohan,  6:  828,  55  S.  E. 
181,  126  Ga.  532. 

5.  Where  a  traveler  is  provided  with  ac- 
commodation and  refreshment  in  an  inn,  the 
fact  that  the  expenses  thereof  are,  by  agree- 
ment with  the  innkeeper  and  another  per- 
son, to  be  paid  for  by  that  other  person, 
does  not  prevent  the  relation  of  innkeeper 
and  guest  from  arising;  and  the  innkeeper 
therefore  incurs  the  customary  liability  fur 
the  safe  custody  of  the  traveler's  goods  in 
the  inn.  Wright  v.  Anderton,  4  B.  E.  C. 
425,  [1909]  1  K.  B.  209.  Also  Reported  in 
78  L.  J.  K.  B.  N.  S.  165,  100  L.  T.  N.  S.  J  23, 
25  Times  L.  R,  156,  53  Sol.  Jo.  135. 

( Annotated ) 

6.  One  who,  upon  going  to  a  place  for 
the  benefit  of  his  health,  engages  a  room 
and  board  at  a  hotel  for  an  indefinite  time, 
is  a  guest,  for  the  safety  of  whose  prop- 
erty the  keeper  is  liable,  although  he  con- 
tracts for  the  weekly  rate  for  his  entertain- 
ment. Pettit  v.  Thomas,  42:  122,  148  S.  W. 
501,  103  Ark.  593.  (Annotated) 

7.  A  traveler  who  is  met  at  the  door  of 
an  inn  by  a  servant  of  the  establisliment, 
and  delivers  to  him  his  baggage,  which  is 
placed  with  that  of  other  guests,  and  who 
repairs  to  the  dining  room,  where  lie  is 
served  with  food  for  which  he  pays  the 
customary  price,  is  a  guest,  for  the  safety 
of  whose  baggage  the  innkeeper  is  responsi- 
ble, although  he  does  not  register  or  notify 
the  clerk  or  other  officer  of  his  intention  to 
become  a  guest,  or  give  any  directions  as 
to  the  care  of  his  baggage.  Menipliis  Hotel 
Co.  V.  Hill,  34:  420,  136  S.  W.  997,  124  Tenn. 
385.  (Annotated) 

8.  The  relationship  of  innkeeper  and 
guest  is  not  established  so  as  to  render  the 
innkeeper  liable  for  injury  to  the  mule  of 
one  who  claims  to  have  been  a  guest  at  the 
time,  where  the  owner  of  the  mule  left  it  in 
a  stable  pointed  out  by  a  boy  in  charge 
thereof,  in  which  guests  were  permitted  to 
keep  their  horses  without  charge,  except  for 
feed  if  furnished  by  tne  innkeeper,  and  then 
left  the  premises  without  entering  the  inn  or 
arranging  that  the  innkeeper  should  furnish 
any  feed  for  the  mule,  or  doing  anything 
towards  becoming  a  guest,  although  he 
stated  to  the  boy  that  he  would  return  and 
himself  feed  the  mule  at  dinner  time,  and  he 
t€stified  that  he  intended  to  take  dinner  at 
the  inn  with  another  person  who  accompa- 
nied him,  but  did  not  do  so  because  before 
dinner  time  he  learned  of  the  injury  to  the 
mule,  and  at  such  time  was  ministering  to 
its  sufferings.  Brewer  v.  Caswell,  23:  1107, 
64  S.  E.  674,  132  Ga.  563.  (Annotated) 

9.  A  stranger  who  goes  to  a  hotel  which 
is  run  as  a  summer  resort,  for  a  short  stay, 
without  any  prearrangement  as  to  terms  or 
time,  has  a  right  to  hold  the  proprietor  to 
the  liability  of  an  innkeeper  for  property 
stolen  from  his  room,  although  he  pays 
board  bv  the  week  at  a  reduied  rate.  Hol- 
stein  v.'Phillips,  14:  475,  59  S.  E.  1037,  146 
N.   C.  366.  (Annotated) 

10.  One  who  goes  into  a  hotel  merely  to 


INNIvEEPERS,  III.  a,  b. 


1527 


pass  the  time  and  write  letters,  without 
registering  or  purchasing  any  accommoda- 
tions, is  not  a  guest  so  as  to  render  the 
keeper  responsible  for  the  safe-keeping  of 
his  baggage.  Baker  v.  Bailey,  39:  1085, 
145  S.  W.  532,  103  Ark.  12. 

Ill,   Rights   of  and  liability  to  guests. 

•     a.  In  general. 

(See  also   same  heading   in  Digest   L.R.A. 
1-10.) 

Liability  of  members  of  partnership  con- 
ducting hotel,  see  Pabtnership,  14,  15. 

11.  An  innkeeper  is  not  required  to 
entertain  a  guest  who  has  refused  to  pay 
a  lawful  charge.  Morningstar  v.  Lafayette 
Hotel  Co.  52:  740,  105  N.  E.  656,  211  N. 
Y.    465.  (Annotated) 

12.  If  all  the  bedrooms  of  an  inn  are 
full,  the  innkeeper  is  under  no  obligation 
at  common  law  to  provide  a  traveler  with 
shelter  and  accommodation  for  the  night, 
although  the  coffee-room  is  unoccupied  and 
the  traveler  demands  to  be  allowed  to  pass 
the  night  there.  Browne  v.  Brandt,  2 
B.  R.  C.  680,  [1902.]  1  K.  B.  696.  Also 
Reported  in  71  L.  J.  K.  B.  N.  S.  367,  50 
Week.  Rep.  654,  86  L.  T.  N.  S.  625,  18  Times 
L.  R.  399.  (Annotated.) 

13.  Innkeeper's  liability  attaches  to  one 
who,  although  keeping  a  hotel  whose  prin- 
cipal patrons  are  families,  takes  all  tran- 
sients possible,  receiving  any  proper  per- 
son. Pettit  v.  Thomas,  42:  122,  148  S.  W. 
501,  103  Ark.  593.  ^ 

14.  An  innkeeper  is  not  liable  for  de- 
priving a  guest  of  the  room  to  which  he  was 
assigned  if  he  offers  him  proper  accommo- 
dation in  lieu  thereof.  Hervey  v.  Hart,  9: 
213,  42  So.  1013,  149  Ala.  604.     (Annotated) 

15.  A  hotel  keeper  is  responsible  to  a 
guest  for  the  acts  of  his  servants  in  cnarge 
of  a  hotel,  whether  the  particular  acts  were 
expressly  authorized  or  not,  providing  the 
servant  was  acting  in  behalf  of  the  pro- 
prietor at  the  time,  and  within  the  general 
scope  of  his  employment.  Lehnen  v.  Hines, 
42:  830,  127  Pac.  612,  88  Kan.  58. 

ft.  For  loss  of  property, 

(See  also   same   heading   in  Digest   L.R.A. 

1-70.) 

Who  are  guests  for  whose  property  innkeep- 
er is  liable,  see  supra,  II. 

Liability  of  proprietor  of  bathing  house  for 
loss  of  patron's  property,  see  Bailment, 
12. 

Question  for  jury  as  to,  see  Trial,  591,  627, 
628. 

16.  It  is  the  duty  of  a  boarding  house 
keeper  to  take  reasonable  care  for  the  safety 
of  property  brought  by  a  guest  into  his 
house.  Scarborough  v.  Cosgrove,  3  B.  R.  C. 
305,  [1905]  2  K.  B.  805.  Also  Reported  in 
75  L.  J.  K.  B.  N.  S.  892,  54  Week.  Rep.  100, 
93  L.  T.  N.  S.  530,  21  Times  L.  R.  754. 

(Annotated) 
Digest  1-52  L.R.A.(N.S.) 


17.  A  house  in  which  furnished  rooms 
are  let  for  a  single  night  or  longer  time, 
and  which  is  open  at  all  hours  for  the  re- 
ception of  guests,  who,  upon  registering 
their  names,  are  provided  with  lodging,  is  a 
public  hotel  although  the  guests  are  not 
supplied  with  food;  and  the  proprietor  is 
liable  to  a  guest,  in  the  absence  of  negli- 
gence by  either  party,  for  money  stolen  in 
the  nighttime  from  him  while  he  is  in  his 
room.  Nelson  v.  Johnson,  17:  1250,  116  N. 
W.   828,   104  Minn.  440.  (Annotated) 

18.  An  innkeeper  is  liable  for  the  loss  of 
property  of  a  guest  through  the  destruc- 
tion of  the  building  by  fire.  Pettit  v. 
Thomas,  42:  122,  148  S.  W.  501,  103  Ark.  593. 

19.  Where  property  is  brought  to  a 
hotel  for  the  purpose  of  sale  or  show,  such 
as  the  goods  of  commercial  travelers,  the 
law  does  not  hold  an  innkeeper  to  his 
strict  liability,  but  only  to  the  exercise  of 
ordinary  care,  and  answerable  for  negli- 
gence. Williams  v.  Norvell  Shapleigh  Hard- 
ware Co.  35:  350,  116  Pac.  786,  29  Okla.  331. 

(Annotated) 

20.  A  hotel  clerk  has  no  implied  author- 
ity to  agree  with  a  departing  guest  to  take 
care  of  his  personal  baggage  in  the  office 
until  it  shall  be  called  for,  so  as  to  render 
the  innkeeper  liable  in  case  the  property 
is  lost  through  delivery  to  a  stranger. 
Booth  v.  Litchfield,  35:  710,  94  N.  E.  1078, 
201  N.  Y.  466. 

21.  The  delivery  by  a  guest  at  a  summer 
boarding  house,  who  is  paying  for  his  ac- 
commodations at  a  weekly  rate,  of  valuables 
to  the  landlord  for  safe-keeping,  does  not 
constitute  a  naked  deposit  without  reward, 
so  as  to  render  the  landlord  liable  for  loss 
only  in  case  of  gross  negligence  on  his  part. 
Coe  v.  Ricker,  45:30,  101  N.  E.  76,  214 
Mass.  212.  (Annotated) 

22.  The  renting  of  a  room  in  an  inn  to  a 
hockey  team,  for  the  use  of  members  of  the 
local  and  of  visiting  teams  in  changing 
clothes  and  taking  refreshment,  does  not 
in  law  so  take  it  out  of  the  control  of  the 
innkeeper  as  to  prevent  his  being  responsible 
for  goods  left  in  it.  Wright  v.  Anderton, 
4  B.  R.  C.  425,  [1909]  1  K.  B.  209.  Also 
Reported  in  78  L.  J.  K.  B.  N.  S.  165,  100 
L.  T.  N.  S.  ]23,  25  Times  L.  R.  156,  53  Sol. 
Jo.  135. 

23.  An  innkeeper  is  not  relieved  from 
liability  for  the  value  of  jewels  forming  part 
of  the  contents  of  a  hand  bag  of  a  guest, 
which  is  lost  while  in  the  actual  possession 
of  his  servant,  by  a  statute  requiring  him  to 
keep  a  safe,  and  post  notices  that  he  will 
not  be  liable  for  valuables  not  delivered  for 
deposit  therein,  and  upon  compliance  there- 
with he  shall  not  be  liable  for  loss  unless  it 
shall  occur  by  a  servant  employed  by  him 
in  the  inn.  RockhiP.  v.  Congress  Hotel  Co. 
22:  576,  86  N.  E.   740,  237  111.  98. 

(Annotated) 
Negligence  of  guest. 

24.  Provisions  of  a  statute  requiring  ho- 
tel guests  to  deposit  valuables  in  the  safe 
do  not  apply  after  the  guest  has  begun  his 
departure  from  the  inn,  and  given  his  bag- 
gage in  charge  of  a  porter  sent  to  receive  it. 


]52S 


INNKEEPERS,  III.  c— V. 


Rockhill  V.  Conj^ress  Hotel   Co.  22:  576,  86 
N.  E.  740,  237  111.  98. 

25.  An  innkeeper  who  has  complied  with 
the  requirements  of  a  statute  relieving  him 
from  responsibility  for  valuable  articles 
belonging  to  his  guests  if  he  provides  an 
iron  safe  or  otiier  place  of  deposit  for  such 
articles,  and  posts  a  notice  in  accordance 
^*ith  the  statute,  is  not  liable  for  the  loss 
by  theft  of  articles  from  the  room  of  a 
guest  who  failed  to  comply  with  such  notice 
and  deposit  her  valuables  as  required  by 
statute,  although  the  articles  were  stolen 
in  consequence  of  the  negligence  of  the 
innkeeper  either  in  failing  to  provide  a 
suitable  lock  on  the  door  of  the  room 
occupied  by  the  guest,  or  in  placing  a  fire 
escape  in  such  a  manner  as  to  afTord  easy 
access  to  the  room  from  the  street  below. 
Jones  v.  Savannah  Hotel  Co.  51:  ii68,  81 
S.  E.  874,  141  Ga.  530. 

26.  Five  diamond  rings,  one  watch 
bracelet,  a  topaz  chain  and  watch,  worn  by 
a  female  guest  at  an  inn  as  articles  of  per- 
sonal adornment,  are  within  the  meaning  of 
a  statute  relieving  an  innkeeper  who  has 
provided  himself  with  an  iron  safe  or  other 
place  of  deposit,  and  posted  notice  thereof, 
of  liability  "for  valuable  articles,"  so  that 
the  guest  cannot  recover  of  an  innkeeper 
who  has  complied  with  the  provisions  of  the 
statute,  fur  loss  of  the  above  articles  from 
her  room  during  the  night  by  theft.  Joneii? 
V.  Savannah  Hotel  Co.  51:  1168,  81  S.  E. 
874,  141  Ga.  530. 

27.  A  guest  departing  from  a  hotel  acts 
at  his  own  risk  in  leaving  money  with  the 
clerk,  to  be  deposited  in  the  safe  until  he 
calls  for  it,  and  cannot  hold  the  hotel  keeper 
responsible  in  case  it  cannot  be  found  when 
he  returns  for  it.  Oxford  Hotel  Co.  v.  Lind, 
28:  495,  107  Pac.  222,  47  Colo.  57. 

J  (Annotated) 

c.  For  injuries  to  person  or  indignities 
to  guests. 

(See  also   same  heading  in  Digest  L.R.A. 

Injury  to  passenger  on  elevator,  see  Eleva- 
TOBS,   7. 

Presumption  of  negligence  from  injury  to 
guest,  see  Evidence,  454. 

Liability  of  lessor  of  hotel  to  guest  injured 

(;  on  premises,  see  Landloed  and  Tenant, 
173. 

Contributory  negligence  of  guest,  see  Negli- 
gence, 248. 

28.  Where  a  person  is  received  in  a 
hotel  as  a  guest,  the  law  implies  a  contract 
between  the  proprietor  and  the  guest  that 
the  proprietor,  by  himself  and  his  servants 
and  agents,  will  exercise  reasonable  care 
for  the  safety,  convenience,  and  comfort 
of  the  guest;  and  that  the  guest,  on  his 
part,  will  observe  the  recognized  proprieties 
of  life  and  refrain  from  any  boisterous  or 
other  conduct  offensive  to  other  guests,  or 
Digest   1-52  L.R.A.(N.S.) 


which  would  bring  the  hotel  into  disrepute. 
Lehnen  v.  Hines,  42:  830,  127  Pac.  612,  88 
Kan.  58. 

By  servants  of  innkeeper. 
Measure  of  damages  for  arrest  of  guest,  see 
Damages,  331). 

29.  An  innkeeper  is  liable  in  compensa- 
tory damages  to  a  woman  guest  in  case  his 
servant  forcibly  enters  her  room  against  her 
protest  when  she  is  in  scant  attire  and,  in 
the  presence  of  a  stranger,  accuses  her  of 
immoral  conduct,  and  orders  her  and  her 
brother,  who  is  at  the  time  in  the  room,  to 
depart  from  the  inn.  De  Wolf  v.  Ford,  21: 
860,  86  N.  E.  527,  193  N.  Y.  397. 

30.  A  night  clerk  left  in  charge  of  a 
hotel,  with  authority  to  receive  guests,  as- 
sign them  to  rooms,  preserve  order,  and 
generally  look  after  the  hotel  during  the 
night,  has  the  implied  authority  to  eject 
guests  from  their  rooms  in  order  to  pre- 
serve peace  and  order;  and  if  the  clerk 
undertakes  to  eject  a  guest  from  her  room, 
and  uses  force  and  violent  language,  and 
summons  the  police,  and  directs  the  police 
to  make  an  arrest  and  place  the  guest  in 
jail,  such  action  on  the  part  of  the  night 
clerk  will  be  held  in  law  to  be  the  act  of 
the  employer  of  such  clerk,  or  the  proprie- 
tor of  the  hotel,  and  for  the  right  or 
wrong  of  which  the  hotel  proprietor  must 
be  held  responsible.  Lehnen  v.  Hines,  42: 
830,  127  Pac.  612,  88  Kan.  58.  (Annotated) 
Contributory   negligence    of   guest. 

31.  A  guest  in  a  hotel  does  not  assume 
the  risk  of  injury  in  attempting  to  reach 
the  ground  floor,  when  the  elevator  is  out 
gf  commission,  by  the  use  of  a  dark  stair- 
way provided  for  the  use  of  guests.  Bitter 
V.  Norman,  43:  657,  129  Pac.  103,  71  Wash. 
563.  (Annotated) 

IV.    Rights   of  persons   other   than 
guests. 

(See   also   same  heading  in  Digest   L.R.A. 

1-70. J 

32.  The  acceptance  by  a  hotel  porter  of 
baggage  from  one  who  intends  to  become  a 
guest  at  the  hotel,  but  does  not  do  so,  es- 
tablishes merely  a  gratuitous  bailment,  and 
the  innkeeper  is  bound  to  use  only  slight 
care  in  protecting  it.  Baker  v.  Bailev,  39; 
1085,  145  S.  W.  532,  103  Ark.  12. 

(Annotated) 

F.  Lien. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Giving  innkeeper  lien  upon  baggage  brought 
by  guest,  though  owned  by  third  person, 
see  Constitutional  Law,  556. 

33.  The  vendor  in  a  conditional  sale  of 
personal  property  is  not  affected  by  a  con- 
tract to  which  he  is  not  a  party,  between 
the  purchaser  and  the  proprietor  of  a  hotel 
in  which  the  purchaser  is  a  guest,  purport- 


INNOCENCE— INSOLVENCY,  I. 


1529 


in^  to  subject  all  property  brought  into  the 
hotel  by  her  to  a  lien  in  favor  of  the  hotel 
proprietor.  Horace  Waters  &  Co.  v.  Gerard, 
24:  958,  82  N.  E.   143,  189  N.  Y.  302. 


INNOCENCE. 


Presumption  of,  see  Evidence,  122,  297-301, 
1390. 


INNUENDO. 


Actionability  of,  see  Libel  and  Slander,  II, 
In    complaint    for     libel    or     slander,     see 
Pleading,  136,  362,  364;  Thiat.,  333. 


IN  PERSONAM. 


Judgment  in  personam,  see  Attachment, 
30,  31;  Judgment,  18,  27,  66,  84;  Me- 
chanics' Liens,  108-111;  Moetgages, 
109. 


INQUEST. 

Of  coroner  as  evidence,  see  Evidence,  759, 

760. 
Evidence   of   defendant's   statement  at,   see 

Evidence,  1220,  1221. 


INQUIRY. 


Duty  of  purchaser  of  negotiable  paper  to 
make,  see  Bills  and  Notes,  159. 


INQUISITION. 


As  evidence,  see  Evidence,  773,  774. 
As  to  competency,   see  Incompetent  Per- 
sons, 4. 


INSANE  ASYLUM. 

As  niiisance,  see  Cotjrts,   156;   MlTNIClPAl 

Corporations,  152. 
Admissibility  of  order  committing  person  to 

insane  asylum,  see  Evidence,  736. 
Requiring  permit  for  location  of,  within  city 
^ffi    limits,    see    Municipal    Corporations, 

215. 
Right  to   inspect  records   of   public   insane 

asylum,    see    Records    and    Recording 

Laws,  7. 
Support  in,  see  Incompetent  Persons,  IV. 
Digest   1-52  I..R.A.(N.S.) 


INSANE  PERSONS. 
See  Incompetent  Persons. 


■♦•» 


INSANITY. 

See  Incompetent  Persons. 


INSECTS. 

Validity  of  statute  providing  for  commis- 
sion for  study  and  extermination  of  in- 
sect and  plant  disease,  see  Constitu- 
tional Lavp,  98,  383,  588,  614,  651. 

Expense  of  treating  insect  diseases  assessed 
against  owner  of  property,  see  Taxes,  6. 


i.i^l    OJ»H 


INSOLVENCY. 


I.  In  general. 
II.  Unlawful  preferences,   1,  2. 

III,  What  passes  to  assignee  or  truS' 

tee. 

IV.  Claims  against  and  distribution  of 

estate,   3. 
Y.  Discharge. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Of  bank,  see  Banks,  IV.  b,  2;  V. 

Of  drawee  of  check  forwarded  for  collection, 
see  Banks,  181. 

Of  building  and  loan  association,  see  Build- 
ing AND  Loan  Associations,  VII. 

Of  social  club,  see  Appeal  and  Error,  43; 
Clubs,  3. 

Of  corporation  generally,  see  Corporations, 

VI.  f. 

Of  foreign  corporation,  see  Corporations, 

VII.  d. 

Of  factor  to  whom  payment  has  been  made 
by  purchaser,  see  Factors,  4. 

Of  insurance  company,  see  Insurance,  I.  c. 

Of  independent  contractors,  effect  on  mas- 
ter's liability,  see  Master  and  Serv- 
ant, 992. 

Of  partnership,  see  Partnership,  35-38. 

Of  purchaser  as  ground  for  rescission,  see 
Sale,  205. 

Of  trustee,  see  Trusts,  118,  150. 

Bank  director's  liability  for  loss  to  cred- 
itors by,  see  Banks,  51-53. 

Payment  of  check  by  bank  in  ignorance  of 
customer's  insolvency,  see  Banks,  87. 

Effect  of  insolvency  of  parties  to  draft  on 
duty  to  give  indorsers  notice  of  dis- 
honor, see  Bills  and  Notes,  102. 

Conflict  of  laws  as  to,  see  Conflict  of 
Laws,  I.  f. 

Assumption  of  debts  of  insolvent  partner- 
ship, see  Contracts,  73. 


1530 


INSOLVENCY,  II.— INSPECTION. 


Rescission  of  subscription  to  stock  after  in- 
solvency of  corporation,  see  Cokpora- 
TioNS,  208,  209. 

EflFect  of  omission  of  insolvent  defendants, 
see  C0RPOR.VTIONS,  358. 

Right  to  consider  insolvency  of  defendant  in 
awarding  damages,  see  Damages,  349. 

Presumption  as  to,  see  Evidence,  129. 

Evidence  to  show,  see  Evidence,  1546,  1955, 
1956. 

Effect  of,  on  set-oflF,  see  Garnishment,  46. 

EflFect  of,  on  necessity  of  demand  on  guaran- 
tor, see  Guaranty,  3. 

Injunction  against  tortious  acts  by  insol- 
vent person,  see  Injunction,  122. 

EflFect  of  insolvency  of  labor  organization 
on  right  to  injunction  against  it,  see 
Injunction,  156. 

EflFect  of  insolvency  of  conditional  vendee 
on  rights  of  one  making  repairs  on 
property  as  against  vendor,  see  Injunc- 
tion, 247. 

Injunction  against  institution  in  other  state 
of  suit  by  insolvent  person,  see  Injunc- 
tion, 257. 

Effect  of  insolvency  of  reinsured  on  liability 
of  reinsurer,  see  Insurance,  904. 

Marshaling  assets  of  insolvent  corporation, 
see  Marshaling  Assets,  1. 

Effect  of,  on  right  to  rescind  subscription 
to  stock  for  fraud,  see  Pleading,  199, 
409,  410. 

Sale  of  note  by  insolvent,  see  Sale,  1. 

As  affecting  set-off,  see  Set-Off  and  Coun- 
terclaim, I.  f. 

Effect  of  repeal  of  statute  authorizing  liqui- 
dation of  insolvent  bank,  see  Statutes, 

•'      360,  361. 

Following  trust  property,  see  Trusts,  V. 

As  to  assignment  for  creditors,  see  Assign- 
ments fcr  Creditors. 

As  to  bankruptcy,  see  Bankruptcy. 

As  to  receivers,  see  Receivers. 

'  //.    Unlawful  preferences. 


(See  also  same  heading  in  Digest  L.B.A. 
1-10.) 

By  bank,  see  Banks,  228-231. 

By  corporation,  see  Corporations,  VI.  f,  2. 

Sufficiency  of  evidence  to  establish,  see  Evi- 
dence, 2199-2201. 

Fraudulent  conveyances  by  insolvent,  see 
Fraudulb:nt  Conveyances. 

See  also  Fraudulent  Conveyances,  III. 

1.  A  creditor  receiving  payments  made 
by  a  concern  which  is  in  fact  insolvent,  but 
without  thougfht  of  injuring  other  creditors, 
and  in  the  belief  that  it  will  be  able  to  pay 
them  all,  cannot  be  said  to  have  had  rea- 
sonable cause  to  believe  that  it  was  intend- 
ed by  the  payments  to  give  him  a  prefer- 
ence, so  as  to  enable  the  trustee  to  set  aside 
the  payments.  Tumlin  v.  Bryan,  21:  960, 
165  Fed.  166,  91  C.  C.  A.  200. 

2.  While  a  failing  or  insolvent  debtor 
may  prefer  one  or  more  of  his  creditors, 
yet,  if  the  arrangement  by  which  he  does 
so  stipulates  or  provides  a  benefit  for  him- 
self, it  is  fraudulent  on  his  part;  and,  if 
Digest  1-52  Ii.R.A.(N.S.) 


I  the   preferred   creditors  know  of   the  exist- 

i  ence  of  other  debts  due  by  the  debtor,  they 

are    chargeable    with    participation    in    the 

fraud.     Hoppe   Hardware  Co.   v.   Bain,   17: 

310,  95  Pac.  705,  21  Okla.  177.     (Annotated) 

///.  What  passes  to  assignee  or  trustee. 

(See  same  heading  in  Digest  L.R.A.  1-70.) 

IV.  Claims  against  and  distribution  of 
estate. 

(See  also   same   heading  in  Digest   L.R.A. 
1-10.) 

As  to  counterclaim  in  case  of  insolvency, 
see  Set-Off  and  Counterclaim,  I.  f. 

Priorities. 

Between  individual  and  firm  creditors,  see 

Partnership,  39-42. 
Priority    of    claims    against    receivers,    see 

Receivers,  III. 
To  beneficiary   where  trustee  is  insolvent, 

see  Trusts,   147-151. 
As    to    trust    in    assets    of    insolvent,    see 

Trusts,  49. 
Priority  of  United  States  as  creditor,  see 

United  States,  V. 

3.  One  creditor  cannot  obtain  priority 
over  another  by  wrongfully  taking  posses- 
sion of  the  debtor's  property.  Jones  v. 
North  Pacific  Fish  &  Oil  Co.  6:  94c,  84  Pac. 
1122,  42  Wash.  332. 

V.  Discharge. 

(See   also   sa/me   heading   in  Digest   L.R.A. 
1-10.) 

Discharge  in  bankruptcy,  see  Bankruptcy, 
V. 


INSPECTION. 


Duty  of  carrier  to  inspect  cars  received 
from  other  line,  see  Carriers,  758. 

Right  of  carrier  to  demand,  see  Carriers, 
786,  787. 

Duty  of  shipper  to  inspect  car,  see  Car- 
riers, 809,  809a. 

Of  electric  wires  and  appliances,  see  Elec- 
tricity, 15,  36,  48. 

Of  electrical  works,  see  Municipal  Cor- 
porations, 175. 

Of  spark  arrestor  on  threshing  engine,  see 
Fires,  16. 

Master's  duty  as  to,  see  Master  and  Serv- 
ant, II.  a,  4,  e. 

Servant's  duty  as  to,  see  Master  and  Serv- 
ant, 512,  518,  575,  631,  632. 

Failure  to  inspect  engine  as  proximate 
cause  of  injury,  see  Proximate 
Cause,  145. 

Sufficiency  of  evidence  as  to  negligence  in, 
see  Trial,  143. 

Negligence  as  to,  as  question  for  jurv,  see 
Trial,  440,  574,  578,  579,  582,  602. 

Error  in  admitting  proof  of  custom  as  to 
right  of,  see  Appeial  and  Error,  1132. 


INSPECTOR— INSTRUCTIONS. 


1531 


Inspection  law,  as  interference  with  inter- 
state commerce,  see  Commerce,  lG-20. 

Construction  of  contract  as  to  right  of,  see 
Contracts,  349. 

Of  books  and  records  of  corporation,  see 
Corporations,  V.  e,  3;  Mandamus, 
65-69,  108. 

Of  mine  by  stockholder  in  company,  see 
Corporations,  254. 

Presumption  as  to  right  of  stockholders  to 
inspect  mine,  see  Evidence,  81. 

Of  mines,  mandamus  to  enforce  right  of, 
see  Mandamus,  10,  69. 

Criminal  liability  for  violation  of  statute 
as  to  inspection  of  oil  to  be  sold,  see 
Criminal  Law,  5. 

By  accused  of  paper  used  by  prosecuting 
attorney  in  examining  witnesses,  see 
Criminal  Law,  72,  73. 

Right  of  accused  to  inspection  of  minutes  of 
evidence  before  grand  jury,  see  Crim- 
inal Law,  73,  74. 

In  general,  see  Discovery  and  Inspection. 

Burden  of  showing,  see  Evidence. 

Determination  of  age  of  person  by  inspec- 
tion in  court,  see  Evidence,  880. 

Evidence  of  custom  as  to,  see  Evidence, 
1533. 

Of  milk,  see  Constitutional  Law,  733; 
License,  66;  Municipal  Corpora- 
tions, 194. 

Placing  cost  of  inspection  of  electrical 
work  upon  contractor,  see  License,  50; 
Municipal  Corporations,  175. 

Of  books  of  municipality,  see  Municipal 
Corporations,  II.  i. 

Of  dairies  and  cows,  see  Mxtnicipal  Cor- 
porations, 162. 

Of  books  by  member  of  partnership,  see 
Partnership,   57,  58. 

Of  agent's  accounts,  see  Principal  and 
Agent,   17. 

Right  to  inspect  records,  see  Records  and 
Recording  Laws,  5-9. 

Of  books,  as  unlawful  search,  see  Search 
AND  Seizure,  3. 

Imposing  inspection  fee  on  meat  imported 
from  other  state,  see  Taxes,  20. 

Of  property  shipped  in  sealed  cars  as  a 
conversion,  see  Trover,  29, 

Effect  of  purchaser's  inspection  of  prop- 
erty on  right  to  recover  damages  for 
broker's  fraudulent  representations  as 
to  value,  see  Brokers,   11.  ^ 

Parol  evidence  as  to  purchaser's  right  to 
inspect  before  passing  title,  see  Evi- 
dence, 1022. 

Right  to  reasonable  time  for,  upon  pur- 
chase of  articles,  see  Sale,  27. 

Effect  of,  on  warranty,  see  Sale,  II.  d. 


INSPECTOR. 


Injury  to  servant  through  negligence  of 
car  inspector,  see  Master  and  Serv- 
ant, 867. 

Buyer's  inspector  of  motors  as  volunteer  in 
attempting  to  adjust  mechanism,  see 
Master  and  Servant,  468. 

As  fellow  servant  of  testor  employed  by 
motor  manufacturer,  see  Master  and 
Servant,  803. 

Liability  of  street  railway  company  for 
negligent  act  of  inspector,  see  Master 
AND  Servant,  902. 

Liability  of  car  inspector  for  injury  to  serv- 
ant resulting  from  his  negligence,  see 
Master  and  Servant,  1055. 

Building  inspectors,  see  Municipal  Cor- 
porations, 32,  33. 

Exercise  of  city  police  power  through,  see 
Municipal  Corporations,  43. 

Injury  to  agent  of  insurance  company  sent 
to  inspect  premises,  see  Negligence, 
92. 


INSTALLATION. 

Of  machinery  sold,  see  Sale,  107. 


INSTALMENTS. 


When  action  for  instalment  accrues,  see 
Action  or  Suit,  8. 

Waiver  of  breach  in  failing  to  pay,  see 
Contracts,   702. 

Debt  payable  in,  as  exceeding  debt  limit, 
see  Counties,  27,  28;  Municipal  Cor- 
porations, 274-279. 

Damages  for  breach  of  instalment  contract, 
see  Damages,  177. 

Agreement  for  payment  of  price  in  instal- 
ments during  construction  as  evincing 
intention  to  pass  title,  see  Sales,  8. 

Sale  of  books  on  instalment  plan,  see 
Sale,  129. 

Right  of  purchaser  of  goods  deliverable  in 
instalments  to  rescind  contract  for 
breach  as  to  quality,  see  Sale,  195, 
196,   201. 


INSTIGATION. 


As    affecting    criminal    responsibility,    see 
Criminal  Law,  I.  f. 


INSTRUCTION. 


As  a  necessary  for  infant,  see  Infants,  68. 
Ratification   by  infant  of  contract  for,   see 

Infants,  "77. 
In  schools,  see  Schools,  V. 


Admissibility  of  reports  of  car  inspectors, 
as  to  defective  condition  of  coupler, 
see  Evidence,  826. 

Of  milk,  see  Food,  10. 

Mandamus  to  building  inspector,  see  Man- 
damus, 135. 

Digest   1-52  L.R.A.(N.S.) 


INSTRUCTIONS. 


For  instructions  generally  and  cross  refer- 
ences to  same,  see  Trial,  III. 
To  appraisers  in  eminent  domain  proceed- 


1532 


INSULATION— INSURANCE. 


ings,  see  Eminent  Domain,  122. 
Duty  to  give  to  servant,  see  Masxeb  and 
Sebvant,  II.  a,  3. 


INSULATION. 


Of  electric  wire,  see  Electricitt,  18-28,  36, 
78;  Master  and  Servant,  300,  442. 

Defect  in,  as  proximate  cause  of  injury,  see 
Peoximate  Cause,  57. 


INSULT. 

To  passenger,  see  Carriers,  II.  d. 
Measure  of  damages  for,  see  Damages,  346. 


INSULTING  LANGUAGE. 

As  provocation  for  killing,  see  Homicide, 
70,  71. 


INSURABLE   INTEREST. 

See  Insurance,  II. 


INSURANCE. 


I.  Companies,   officers,   and  agents, 
1-51. 
a.  Right  and  manner  of  doing 

btisiness,   1—12. 
5.  Foreign     corporations,     13— 

21. 
c.  Dissolution;    forfeiture;    in- 
solvency;   rights    of    mem- 
■n\'  A\t'  hers  of  mutual  companies, 

"  .1    h  22-30a. 

-pf  d.  Officers  and  agents,  31—51. 

IT.  Insurable  interest,   52—80. 
a.  In  property,   52—57. 
h.  In  life,   58—SO. 
III.  The  policy  or  contract,   81—44:6. 
a.  In  general,  81—138. 
h.  Reformation;     rescission, 
139-144. 

c.  Cancelation;       surrender ; 

paid-up    policy,     145—174. 

d.  Construction,    175—191. 

1.  In    general;    policies   on 

property,  175—184. 

2.  Of   policies   on  persons, 

185-191. 

e.  Warranties;  representa- 

tions;   conditions;    de- 
scription, 192—372. 
1.  In  policies  on  property, 
192— 301. 

a.  Generally,  192— 200. 

b.  Title      and      encum- 

brances,   201—239. 

c.  I7.se      and      care      of 

property,  240—275. 
Digest  1-52  L.R.A.(N.S.) 


///.  e,  1 — continued. 

d.  BooTcs;       inventory; 

iron  safe  clause, 
276-286. 

e.  Other  insurance^ 

287-295. 

f.  Severability,       296— 

301. 

g.  Marine  insurance. 
Z.  In  life  or  accident  poli- 
cies, 302—372. 

o    t^'vii  a.  In      general,      302— 

324. 
'"*   *     ■*  b.  Health    and    habits, 

325—352. 

c.  Occupation,         353— 

355. 

d.  Other         insurance; 

previous  applica- 
tions, 356—361. 

e.  Family  history,  362. 
t.  Incontes  t  ability  , 

363-372. 

f.  Forfeiture,  373—406. 

1.  In  general,  373—376. 

2.  For        nonpayment       of 

premiums     or     assess- 
ments, 377—406. 

g.  Reinstatement;  revival, 

407-414. 
h.  Premiums  and  assessments, 
415-446. 
IV.  Transfer  of  policy  or  of  interest 
therein,  447—478. 

a.  Assignment  generally,  447— 

467. 

b.  Change  of  beneficiary,  468— 

478. 
V.  Waiver;  estoppel,  479—622. 

a.  Of    insured    or    beneficiary, 

479-483. 
h.  Of  insurer,  484—622. 
...^  ,  •   ..  1.  In  general,  484—495. 

'  S.  Knowledge      or     notice, 
>;tA:i?;    ^s/S    ,'  496—520. 

8.  Estoppel    or    waiver    a» 
affected    by    power    of 
agent,   521—543. 
4.  Mistake,    negligence,    or 
fraud    of    agent,    544— 
549. 
6.  Acts  constituting  tcaiver 
or    estoppel,     550— 
,  622. 

a.  In     general,      550-' 

557. 

b.  Misleading   conduct, 

558—563. 

c.  Issuing  and  deliver- 

ing policy,  564— 
572. 

d.  Receipt,         demand, 

acceptance,  and 

retention  of,  or  a«- 
tion  for,  premium 
or  assessment, 
573-601. 

e.  Failure  to  assert  for- 

feiture,    602—606. 
t.  Denial     of     liability, 

607-616. 
g.  Requiring,       accept- 
/  5»  •.      ^'^{ft      °^     retaining 


?'.aM«  bsr 


INSURANCE. 


1533 


V.  b,  5 — continued. 

notice  or  proofs  of 
loss,    617-620. 
h.  Participation  in  ad- 
justment,        6  2  1, 
622. 
VI-  The    loss;    remedies    of    the    as- 
sured,  623—903. 

a.  Notice;    proofs;    arbitration, 

623-670. 

b.  Risks  and  causes  of  loss,  in- 

jury,   or    death,     671— 
778. 

1.  Under   policies   covering 

property,   671—695. 

2.  Under  life  policies,  696— 

714:. 

a.  In     general,      696— 

704. 

b.  Risic    of    occupation 

or   employment. 

c.  Suicide,   705—714:. 
8.  Under  accident  w  health 

policies,    715—778. 

a.  Accidental     injuries 

generally,  715— 

730. 

b.  Intentional  injuries, 

731-733. 

c.  External,         violent, 

and  accidental 
means,   734—750. 

d.  External    or    visible 

marie,  751—753. 

e.  Things     taken,     ad- 

ministered, ab- 
sorbed, or  inhaled, 
754. 

ee.  Blood  poisoning, 
755-763. 

t.  Increased  hazard; 
voluntary  e xpo  - 
sure,  764—777. 

(1)  In     general; 

over  exer- 
tion, 7e4- 
771. 

(2)  Risks   of   oc- 

cupation or 
employ- 
ment,    772. 

(3)  Intoxication. 

(4)  Risks       of 

travel, 
773-776. 

(5)  Violating 

law,   777. 

(6)  Fighting, 
g.  Suicide. 

h.  Insanity. 

1.  Injury    as    result    of 

examination     after 

accident. 
J.  Insurance        against 

loss     from,    illness, 

778. 
o.  Extent  of  injury  or  loss;  of 
recovery,   779—816. 

1.  Insurance    on    property, 

779-799. 

2.  Insurance     on     persons, 

800-816. 
Digest  1-52  L.B.A.(N.S.) 


y/. — continued. 

d.  Interest   in   proceeds,    817— 

851. 

1.  Of    property    insurance, 

817-824. 

2.  Of  insurance  on  persons, 

825-851. 

a.  In  general,  825. 

b.  Widow,   children,   or 

heirs,  826—834. 

c.  Titist  fund. 

d.  Rights    of   assignees 

or  creditors,   835. 

e.  Mutual     benefit     in- 

surance,   836—851. 

e.  Defenses;       release,       852— 

873a. 

f.  Subrogation;   rights    of   car- 

rier,   874—890. 

g.  Apportionment   or   contribu- 

tion, 891,  892. 
h.  Actions;  enforcing  payment, 
893-903. 

1.  In  general,  893,  894. 

2.  Against  assessment  com- 

panies, 895,  896. 
8.  Contractural     limitation 
of  time,   897-903. 
VII.  Reinsurance,  904,  905. 
VIII.  Guaranty  policies,  906—945. 
IX.  Burglary  insurance. 

Recovery  of  amount  paid  on  policy  on  per- 
son who  has  disappeared  wliere  he  sub- 
sequently reappears,  see  Assumpsit, 
40. 

Liability  of  administrator  collecting  insur- 
ance on  life  of  absentee,  upon  latter's 
reappearance,  see  Executors  and  Ad- 
ministrators, 62. 

Life  insurance  as  asset  of  bankrupt,  see 
Bankruptcy,    32-38. 

Matters  as  to  benevolent  societies  other 
than  insurance,  see  Benevolent  So- 
cieties. I 

Giving  fire  protective  associations  right  of 
way  in  public  streets,  see  Constitu- 
tional Law,   160. 

Interference  with  constitutional  right  to 
contract,  see  Constitutional  Law, 
464,  465. 

Police  power  as  to,  see  Constitxtiional 
Law,  697-699. 

Impairing  obligation  of  contract  as  to,  see 
Constitutional  Law,  797-800. 

Power  of  directors  to  confer  upon  policy 
holders  right  to  vote  for  directors  to 
exclusion  of  stockholders,  see  Corpora- 
tions, 132. 

Trust  for  voting  stock  of,  see  Corpora- 
tions, 380. 

Jurisdiction  to  enforce  policy  on  property 
in  other  state,  see  Courts,  38 

Original  jurisdiction  of  appellate  court  in 
action  for  mandamus  to  state  insur- 
ance commissioner,  see  Courts,  229, 
230. 

Individual  action  against  administrator  of 
insured  person  to  whom  donee  of  life 
policy  delivers  it  for  collection,  see 
Executors   and   Administrators,    63. 

Fire  insurance  patrol,  see  Charities,  15; 
Fire  Insurance  Patrol. 

Agreement  in  antenuptial  contract  to  keep 


1534 


INSURANCE,  I.  a. 


up    insurance    for    wife's    benefit,    see 

Husband  and  Wife,  130. 
Injury   to   insurance   solicitor   on    property 

by    permission,    see    Neougence,    101, 

102. 
De   facto    commissioner    of    insurance,    see 

OkTICERS,    116. 

Railroad  relief  department  as  an  insurance 
business,  see  Corporations,  50. 

Contract  with  railroad  relief  association, 
see  Railroad  Relief  Associations. 

Effect  of  stipulation  in  contract  for  pur- 
chase of  a  product  to  be  prepared  by 
vendor,  that  vendor  shall  pay  cost  of 
insurance,  see  Sale,  21. 

Power  of  court  to  compel  attorney  to  dis- 
close whether  insurance  company  is 
interested  in  action  for  personal  in- 
juries, see  Trial,  4. 

Questions  for  jury  as  to  insurance  matters, 
see  Trial,  645-656. 

Duty  of  water  company  to  insure  property 
of  individual,  see  Waters,  358. 

/.  Companies,  officers,  and  agents. 

a.  Right  and  manner  of  doing  business. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.J 

Police  power  as  to,  see  Constitutional 
Law,  698,  699. 

Requiring  companies  to  pay  portion  of 
earnings  to  firemen's  relief  association, 
see  Constitutional  Law,  699;  Taxes, 
16,   39. 

Duty  of  directorate  to  declare  dividends  of 
surplus,  see  Corporations,  292. 

Assessment  upon  insurance  companies  to 
pension  firemen,  see  Fire  Department, 
1. 

Imposing  penalty  on  company  for  failure 
to  pay  claim  within  certain  time,  see 
Constitutional  LuVw,  800. 

Amendment  of  charter  of  insurance  com- 
pany, see  Corporations,  39-41. 

Mandamus  to  compel  issuance  of  permit  to 
do  business  within  state,  see  Coubts, 
229,  230. 

Admissibility  of  evidence  in  action  for  pen- 
alty for  rebating,  see  Evidence,  2037. 

Injunction  against  illegal  contract  between 
insurance  companies,  see  Injunction, 
16. 

Illegal  combination  of  companies,  see  Mo- 
nopoly AND  Combinations,  II.  e. 

Right  to  share  in  penalty  for  rebating,  see 
Penalties,  5. 

Repeal  of  anti-trust  laws  relating  to  insur- 
ance companies,  see  Statutes,  139,  331, 

Taxation  of  securities  deposited  by  insur- 
ance company  with  state  treasurer  for 
benefit  of  policy  holders,  see  Taxes,  73. 

Infringement  of  insurance  company's  use 
of  tradename,  see  Tradename,   18. 

1.  A  claim  against  an  insurance  com- 
pany for  penalty  for  making  a  discrimina- 
tion between  applicants  in  rates  need  not  al- 
lege that  it  was  unjust,  if  all  the  facts  are 
stated,  and  the  statute  fixes  the  character 
Digest  1-52  i:<.R.A.(N.S.) 


of  discrimination  prohibited  and  character- 
izes such  discrimination  as  unjust.  People 
V.  Hartford  L.  Ins.  Co.  37:  778,  96  N.  E. 
1049,  252  111.  398. 

2.  A  rule  of  an  insurance  company  for- 
bidding rebating  of  premiums  cannot  eflect 
a  reduction  of  statutory  penalty  for  grant- 
ing rebates,  if  the  rule  was  violated  by  a 
manager  having  charge  of  an  agency.  Peo- 
ple V.  Hartford  L.  Ins.  Co.  37:  778,  96  N.  E. 
1049,  252  111.  398. 

Wliat  constitutes  insurance. 

3.  A  voluntary  association  issuing 
benefit  certificates  is  not  entitled  to  the 
benefit  of  a  statute  providing  that  societies 
founded  under  it  shall  be  corporations,  and 
if  intended  to  benefit  widows  and  orphans 
of  members  shall  not  be  deemed  insurance 
companies.  Head  Camp  Pacific  Jurisdic- 
tion v.  SI088,  31:  831,  112  Pac.  49,  49  Colo. 
177. 

4.  A  benefit  certificate  in  which  the 
beneficiary  may  be  anyone,  even  a  stranger, 
dependent  upon  the  holder,  is  not  witliin 
a  statute  providing  that  societies  intended 
to  benefit  widows,  orphans,  heirs,  and  dev- 
isees of  members  shall  not  be  deemed  in- 
surance companies.  Head  Camp  Pacific  Ju- 
risdiction v.  Sloss,  31:  831,  112  Pac.  49,  49 
Colo.  177. 

5.  A  contract  issued  by  an  association 
to  furnish  the  holder  with  burial  at  death, 
at  a  specified  cost,  the  money  to  be  raised 
by  assessments  upon  members  of  the  asso- 
ciation, who  are  secured  by  solicitation  from 
the  general  public,  is  one  of  life  insurance, 
within  the  meaning  of  a  statute  regulating 
such  business.  State  v.  Willett,  23:  197,  86 
N.  E.  68,  171  Ind.  296.  (Annotated) 

6.  Undertaking  to  meet  the  expense  of 
defending  suits  against  physicians  for  civil 
malpractice,  to  the  total  expenditure  of  a 
specified  amount,  for  compensation,  is  in- 
surance within  the  meaning  of  a  statute 
requiring  the  filing  of  a  bond  and  securing 
authority,  to  be  entitled  to  do  business  in 
the  state.  Physicians'  Defense  Co.  v.  Coop- 
er, 47:  290,   199  Fed.  576,   118  C.  C.  A.  50. 

(Annotated) 
Assessment    companies. 
Punishment  of  agent  giving  special   rates, 
see  Criminal  Law,  245. 

7.  One  taking  an  assessment  policy 
from  a  company  having  the  right  to  issue 
life  insurance  under  both  the  assessment  and 
the  reserve  plans  cannot,  in  the  absence  of 
express  contract,  require  the  company  to 
continue  the  issuance  of  assessment  poli- 
cies. Green  v.  Hartford  L.  Ins.  Co.  i:  623, 
51  S.  E.  887,  139  N.  C.  309.  (Annotated) 
Mutual   companies. 

Impairing  obligations  of  contract  as  to,  see 
Constitutional    Law,    797-799. 

Reorganization  of  mutual  insurance  com- 
pany, see  Corporations,  20. 

Duty  to  declare  dividends  of  surplus,  see 
Corporations,  292. 

Jurisdiction  of  equity  of  action  to  enforce 
liability  of  members  of  assessment  com- 
pany, see  Equity,  98,  99. 

Bar  of  suit  to  recover  assessments  against 


INSURANCE,  I.  b. 


1635 


members  of  mutual  company,  see  Limi- 
tation OF  Actions,  250. 

8.  The  "surplus"  of  a  mutual  life  insur- 
ance company  belongs  equitably  to  the  pol- 
icy holders  wlio  contributed  to  it,  in  the 
proportion  in  which  they  contributed  to  it. 
United  States  L.  Ins.  Co.  v.  Spinks,  13: 
1053,  96  S.  W.  889,  126  Ky.  405. 

9.  In  case  of  a  distribution  of  the 
surplus  of  a  mutual  insurance  company  or 
of  its  other  assets,  there  being  no  charter 
juovision  to  the  contrary  existing  policy 
holders,  and  ouch  only,  are  the  legitimate 
distributees.  In  the  aggregate,  they  are 
entitled  to  the  whole.  Huber  v.  Martin, 
3:  653,  105  N.  W.  1031,  127  Wic.  412. 

(Annotated) 

10.  It  is  competent  for  a  mutual  insur- 
ance corporation,  there  being  no  limitation 
in  its  charter  to  the  contrary,  to  make  rates 
for  insurance  with  a  view  of  probably 
creating  a  surplus  and  of  subsequently  dis- 
tributing the  same  to  members  so  far  as 
experience  shall  show  that  the  same  is  not 
needed  in  the  business.  Huber  v.  Martin, 
3:  653,  105  N.  W.  1031,  127  Wis.  412. 

11.  The  Endowment  Rank  of  the  Knights 
of  Pythias  is  a  fratf^rnal  benefit  association, 
and  not  an  insurance  company,  within  the 
meaning  of  a  statute  providi^i'  for  extended 
insurance  in  case  of  forfeiture  of  insurance 
policies  for  nonpayment  of  premiums,  al- 
though benefit  certificates  are  not  is  ued  to 
every  member  of  the  order,  and  the  benefit 
fund  is  raised  by  the  payment  of  fixed  dues, 
payable  at  certain  periods,  and  not  by  as- 
sessments to  meet  losses,  and  the  Endow- 
ment Rank  does  not  itself  maintain  a  ritual- 
istic form  of  work  or  representative  form 
of  government,  it  being  merely  a  branch  of 
the  general  order,  which  is  organized  and 
carried  on  for  the  sole  benefit  of  its  mem- 
bers and  their  beneficiaries,  and  not  for 
profit.  Westerman  v.  Supreme  Lodge,  K. 
of  P.  5:  1 1 14,  94  S.  W.  470,  196  Mo.  670. 
Consolidation. 

12.  A  fraternal  insurance  company 
whose  attempted  consolidation  with  an- 
other company  fails  because  ultra  vires 
cannot  avoid  liability  upon  the  certificates 
of  the  members  of  the  latter,  if  upon  its 
invitation  they  accept  membership  in  it, 
pay  their  dues,  and  meet  their  other  obli- 
gations, although  they  do  not  follow  the 
procedure  prescribed  by  its  rules  for  the 
reception  of  members.  Timberlake  v.  Su- 
preme Commandery,  U.  O.  G.  C.  of  W. 
36:  597,  94  N.  E.  685,  208  Mass.  411. 

(Annotated) 

1).  Foreign  corporations. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Estoppel   of,   see  infra,  491. 

Service  of  process  on  agent  of,  see  Evi- 
dence, 2251. 

Garnishment  of,  see  Garnishment,  7. 

Injunction  against  other  company's  use  of 
trade  name  or  trade  device,  see  In- 
junction, 390,  444. 

Digest   1-52  L.R.A.(N.S.) 


Illegal  combinations  by,  see  Monopoly  and 
Combinations,    82. 

What  are  assets  witliin  state  authorizing 
appointment  of  receiver  for,  see  Re- 
ceivers, 16. 

Situs  of  loans  made  by,  for  purpose  of 
taxation,  see  Taxes,  146. 

Estoppel  to  require  second  payment  of  tax 
■paid  to  wrong  officer,  see  Tajces,  260. 

13.  A  statute  directing  the  revocation  of 
the  license  of  a  foreign  insurance  company 
to  do  business  within  the  state  for  refusing 
to  perff  rm  its  agreement  not  to  remove  suite 
against  it  to  the  Federal  courts  is  not  in 
conflict  with  the  Federal  Constitution. 
Prewitt  v.  Security  Mut.  L.  Ins.  Co.  i:  1019, 
83  S.  W.  611,  119  Ky.  321.  (Annotated) 
Right  to  do  business. 

Appeal  in  action  by  foreign  company  re- 
fused license,  see  Appeal  and  Ebrob, 
697. 

14.  The  mere  fact  that,  at  the  time  a 
foreign  fraternal  insurance  company  re- 
newed the  certificate  of  a  member  for  the 
purpose  of  increasing  his  benefit,  no  law  ex- 
isted authorizing  it  to  do  business  in  the 
state,  does  not  render  the  contract  ame- 
nable to  the  laws  governing  regular  policies 
of  insurance  issued  by  old-line  companies. 
Westerman  v.  Supreme  Lodge,  K.  of  P.  5: 
1 1 14,  94  S.  W.  470,  196  Mo.  670. 

15.  A  resident  of  a  state  requiring  in- 
surance companies  to  comply  with  certain 
statutory  requirements  before  transacting 
business  may  safely  deal  with  any  insurance 
company  holding  itself  out  as  qualified"  to 
do  business  with  him,  in  the  absence  of 
knowledge,  actual  or  constructive,  to  the 
contrary,  although  the  company  has  not  in 
fact  complied  with  the  statute.  Corbett  v. 
Physicians'  Casualtv  Asso.  16:  177,  115  N. 
W.  365,  135  Wis.  505. 

16.  The  right  of  a  resident  of  a  state 
which  requires  insurance  companies  to  com- 
ply with  certain  statutory  requirements  be- 
fore transacting  business  to  presume  that  a 
company  offering  to  do  business  with  him  is 
qualified  to  transact  it  is  not  impaired  by 
the  fact  that  the  company  uses  the  United 
States  mail  as  a  medium  of  communication 
in  negotiating  its  contract  of  insurance  with 
him.  Corbett  v.  Phvsicians'  Casualty  Asso. 
16:  177,  115  N.  W.  365,  135  Wis.  505'. 

17.  A  statute  requiring  a  paid-up,  unim- 
paired cash  capital  of  a  certain  amount  to 
enable  an  insurance  company  to  do  busi- 
ness in  the  state,  is  not  complied  with  by 
the  realization  of  the  prescribed  amount  by 
the  sale  of  stock  at  a  premium,  but  the  en- 
tire amount  of  stock  appraised  at  par  must 
be  subscribed  and  paid  for.  l^nion  P.  L. 
Ins.  Co.  V.  Ferguson,  43:  958,  129  Pac.  529, 
130  Pac.  978,  64  Or.  395. 

Wliat   is   doing   business. 

18.  Merely  recognizing  existing  insur- 
ance policies  and  receiving  the  protniuins 
on  them  at  its  office  in  another  s+'te  and 
adjusting  claims  which  accrue  does  not 
constitute  doing  business  within  a  state 
by  an  insurance  comnnny  aftoi-  its  assert- 
ed withdrawal  therefrom,  so  as  to  continue 


1536 


J.N.SUKAXCK,  1.  1-. 


in  force  its  designation  of  the  insurance 
commissioner  as  its  agent  to  receive  serv- 
ice of  process.  Hunter  v.  Mutual  Reserve 
L.  Ins.  Co.  30:  677,  76  N.  E.  1072,  184  N.  Y. 
136. 

19.  The  receipt  by  a  foreign  insurance 
company  at  its  liome  oflice  of  premiums  up- 
on policies  tlieretofore  issued,  together 
with  four  isolated  acts  extending  over  a 
period  of  three  years,  consisting  in  rewrit- 
ing an  existing  policy,  sending  a  check  in 
payment  of  a  policy,  to  be  delivered  upon 
receipt  of  certain  unpaid  assessments,  and 
two  adjustments  within  the  state  of  claims 
which  have  accrued,  do  not  constitute  do- 
ing business  within  the  state  after  the  com- 
pany's asserted  withdrawal  therefrom  in 
good  faith,  so  as  to  preclude  it  from  revok- 
ing its  designation  of  the  state  insurance 
commissioner  as  its  agent  to  receive  serv- 
ice of  process.  Hunter  v.  Mutual  Reserve 
L.  Ins.  Co.  30:  6S6,  31  Sup.  Ct.  Rep.  127, 
218  U.  S.  573,  54  L.  ed.  1155. 
TJnantliorized   contracts. 

Judgment  against  resident  mutual  insur- 
ance company  on  policy  insuring  prop- 
erty in  other  state,  where  it  is  invalid, 
see  Judgment,  282. 

20.  A  policy  issued  by  an  insurance  com- 
pany of  one  state  upon  property  in  another 
state  in  Avhich  the  company  is  unauthorized 
to  transact  business,  is  not,  in  the  absence  of 
an  express  statute,  void  as  to  the  insured. 
Stranipe  v.  Minnesota  Farmers'  Mut.  Ins. 
Co.  26:  999,  123  N.  W.  1083,  109  Minn.  364. 

(Annotated) 

21.  No  action  on  behalf  of  a  foreign  in- 
surance company  which  has,  without  com- 
plying with  the  local  laws,  effected  insur- 
ance on  property  within  the  state  by  a  con- 
tract executed  at  its  domicil  upon  applica- 
tions forwarded  from  still  another  state, 
can  be  maintained  in  the  courts  of  the  state 
where  the  property  is  located,  to  collect  as- 
sessments provided  for  by  the  contract, 
where  the  statute  provides  that,  when  any 
forbidden  act  shall  have  been  done  by  a  for- 
eign corporation,  it  shall  not  be  authorized 
to  maintain  any  action  founded  upon  such 
act,  or  upon  an  obligation  arising  out  of 
it.  Swing  V.  Cameron,  9:  417,  108  N.  W.  506, 
145  Mich.  175.  (Annotated) 

c.  Dissolution;  forfeiture;  insolvenetf ; 
rights  of  members  of  mutual  com- 
panies. 

{See  also   same   heading   in   Digest    L.K.A. 

■ft'»     ■!. 

Jurisdiction  of  action  to  enforce  liability 
of  members  of  mutual  company,  see 
Courts,  16. 

Appointment  of  receiver  for,  see  Receiveb, 
16. 

22.  The  holders  of  a  majority  of  the 
stock  of  a  life  insurance  company  may, 
upon  change  of  management  and  the  ad- 
vent of  conditions  which  will  result  in  de- 
clining profits  and  decreased  assets  which 
mav  lead  to  insolvency,  sell  the  business 
Digest   1-52  L.R.A.(N.S.) 


while  it  is  in  a  condition  to  command  the 
j.ighest  possible  price.  Beidenkopf  v.  Des 
Moines  L.  Ins.  Co.  46:290,  142  N.  W.  4.34, 
160  Iowa,  G29. 

23.  The  state  has  no  preference  over 
other  creditors  for  payment  of  losses  and 
unearned  premiums  out  of  the  assets  in 
the  hands  of  a  receiver  of  an  insolvent  in- 
surance company  with  which  it  has  insured 
state  property.  State  v.  Williams,  i:  254, 
61  Atl.  297,  101  Md.  529.  (Annotated) 
Who  are  meiubers. 

24.  If  the  charter  of  a  miitiial  insurance 
company  contains  no  provision  on  the  sub- 
ject, membership  commences  only  with  the 
taking  out  of  a  policy,  and  lasts  only 
for  the  policy  period.  Huber  v.  JIartin, 
3:  653,  105   N.   W.   1031,  127   Wis.  412. 

25.  Under  the  charter  of  a  mutual  insur 
ance  company  providing  in  effect  that  one 
can  become  a  member  only  by  taking  out  a 
policy  of  insurance,  and  that  the  member- 
siiip  can  survive  only  to  Llie  end  of  the  policy 
period  upon  which  it  is  based,  no  one  can 
rightly  be  treated  as  a  member  for  any  pur- 
pose, at  any  time,  unless  he  then  holds  an 
unexpired  policy  of  insurance.  Huber  v. 
Martin,  3:  653,  105  N.  W.  1031,  127  Wis. 
412. 

Rights  of  members  generally. 
Impairing  obligation  of  contract  as  to,  see 

Constitutional  Law,  797-799. 
Member's  right  of  action  against  company, 

see  Corporations,  272. 

26.  As  regards  rights  and  remedies,  the 
policy  holders  in  a  mutual  insurance  com- 
pany are  stockholders  therein  the  same  as 
owners  of  stock  in  a  stock  corporation, 
there  beirtg  no  charter  provision  to  the  con- 
trary. Huber  v.  Martin,  3:  653,  105  N.  W. 
1031,  127  Wis.  412. 

27.  For  all  except  corporate  purposes, 
the  property  of  a  mutual  insurance  com- 
pany, the  same  as  that  of  any  other  corpo- 
ration, belongs  to  its  members  whether  they 
are  stockholders  in  the  technical  sense  or 
in  the  broader  one  which  includes  policy 
holders  in  such  a  company.  Huber  v.  Mar- 
tin, 3:  653,  105  N.  W.  1031,  127  Wis.  412. 

28.  The  title  to  the  property  of  a  mu- 
tual insurance  corporation  is  in  the  com- 
pany, but  the  equitable  interests  therein 
are  vested  in  the  members,  the  same  as  in 
ease  of  a  stock  corporation.  While  the 
corporation  owns  the  property,  the  mem- 
bers own  the  corporation.  Huber  v.  Mar- 
tin, 3:  653,  105  N.  W.  1031,  127  Wis.  412. 

29.  The  interest  of  policy  holders  in  a 
mutual  insurance  company  are  twofold, — 
they  are  both  insurers  and  insured.  In  re- 
spect to  the  former,  they  are  entitled  to 
ihare  in  the  losses  and  profits  of  the  busi- 
ness on  the  basis  of  a  partnership,  except 
so  far  as  the  charter  or  policy  contract 
provides  otherwise.  Huber  v.  Martin,  3:  653, 
105  N.  W.  1031,  127  Wis.  412. 
Distribntion   of  assets. 

30.  Funds  deposited  by  a  surety  com- 
pany with  the  state  treasurer  to  secure  its 
contracts,  under  a  statute  providing  that 
they  shall  be  held  in  trust  by  the  treasurer 


INSURANCE,  I.  d. 


1537 


for  contract  holders,  subject  to  sale  by  him 
and  application  of  the  proceeds  only  on  the 
order  of  a  court  of  competent  jurisdiction, 
will  not  be  required  to  be  turned  over  to  a 
receiver  appointed  to  liquidate  the  affairs 
of  the  company,  which  remains  solvent. 
Vandiver  v.  Poe,  46:187,  87  Atl.  410,  119 
Md.  348.  (Annotated) 

Insolvency. 

30a.  A  bonus  allowed  by  an  insurance 
company  to  an  officer  of  another  company, 
who  is  also  its  agent,  to  reinsure  its  out- 
standing risks,  out  of  the  unearned  premi- 
ums due  on  the  contracts,  in  order  to  se- 
cure the  agent's  services  in  holding  the  re- 
newal business,  may  be  recovered  by  a  re- 
ceiver of  the  reinsured  company,  from  either 
the  agent  or  the  company  making  the  re- 
insurance. Johns  V.  Arizona  F.  Ins.  Co. 
49:  loi,  136  Pac.  120,  76  Wash.  349. 

(Annotated) 

d.  Officers  and  agents. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of  agent's  mistake,  negligence,  or 
fraud,  see  infra,  V.  b,  4. 

Imputing  agent's  knowledge  to  company, 
see  infra,  V.  b,  2. 

Note  accepted  by  agent  as  payment  of  pre- 
mium, see  infra,  426. 

Restrictions  on  right  to  engage  in  insurance 
brokerage  business,  see  Constitutional 
Lavs^,  256. 

Requiring  directors  also  to  be  stockholders, 
see  Corporations,  40. 

Transferring  power  of  electing  directors 
from  stockholders  to  policy  holders, 
see  Corporations,  41. 

Right  of  courts  to  control  discretion  of  offi- 
cer, see  Courts,  169,  170. 

Damages  for  negligence  of  agent  failing  to 
forward  application  for  insurance,  see 
Damages,  304. 

Presumption  of  agency,  see  Evidence,  132. 

Admissibility  of  evidence  in  action  for  pen- 
alty for  rebating,  see  Evidence,  2037. 

Exemption  of  automobile  used  by  general 
agent  in  his  business,  see  Exemptions, 
17. 

Eifect  of  fraudulent  representations  by  in- 
surance agent  to  insured,  see  Fraud 
AND  Deceit,  31. 

Liability  of  company  for  libel  of  agent,  see 
Damages,  341. 

Libel  of  insurance  agent,  see  Libel  and 
Slander,   61,  117. 

Grounds  for  discharging  agent,  see  Princi- 
pal AND  Agent,  16-18. 

Compelling  payment  of  unpaid  portion  of 
premium  where  insurance  wrongfully 
grants  rebate,  see  Contracts,  580. 

Imputing  to  company  superintendent's 
knowledge  that  agent  called  on  to  ac- 
count has  turned  balance  over  to  him, 
see  Notice,  54. 

Sufficiency  of  evidence  to  show  that  person 
served  with  process  is  agent  of  com- 
pany, see  Evidence,  2251. 

Digest  1-52  Ii.R.A.(X.S.) 


Action  to  recover  from  agent  premiums  col- 
lected by  him,  see  Parties,  62;  Trover, 
9. 

Pleading  and  proving  defense  in  action  on 
bond  of  agent,  see  Evidence,  542. 

Evidence  of  admissions  by  agent  as  against 
his  surety  in  action  on  his  bond,  see 
Evidence,  1259. 

Release  of  surety  on  bond  of  insurance 
agent,  see  Principal  and  Surety,  41. 

Right  of  trustee  in  bankruptcy  of  agent,  to 
commissions  on  renewals,  see  Bank- 
ruptcy, 39. 

Right  of  state  to  reduce  compensation  of 
insurance  agent,  see  Constitutional 
Law,  097,  783;  Corporations,  17. 

Evidence  in  action  against  agent  to  re- 
cover secret  commissions,  see  Evidence, 
1465. 

Garnishment  of  renewal  commissions  due 
general  insurance  agent,  see  Garnish- 
ment, 13. 

Succession  tax  on  decedent's  right  to  com- 
missions as  insurance  agent,  see  Taxes, 
322,  323. 

31.  A  statute  limiting  the  amounts  which 
insurance  companies  may  expend  for  secur- 
ing new  business  does  not  apply  to  an  exist- 
ing long-term  contract  with  a  general  agent, 
so  as  to  reduce  the  amounts  to  be  paid  hira 
under  his  contract.  Boswell  v.  Security 
Mut.  L.  Ins.  Co.  19:  946,  86  N.  E.  532,  193 
N.  Y.  465.  (Annotated) 

32.  A  provision  in  a  contract  by  a  gener- 
al agent  of  an  insurance  company  placed  in 
charge  of  the  business  in  another  state,  that 
the  contract  is  subject  to  the  condition  that 
the  company  continue  to  be  legally  author- 
ized to  transact  business  in  said  district, 
does  not  make  the  provisions  of  the  contract 
as  to  compensation  subject  to  future  legis- 
lation of  the  state  where  the  company  is 
incorporated.  Boswell  v.  Security  Mut.  L. 
Ins.  Co.  19:  946,  86  N.  E.  532,  193  N.  Y. 
465. 

33.  Changes  in  premium  rates  or  clauses 
in  present  forms  of  life-insurance  policies 
are  not  to  be  construed  as  new  forms,  with- 
in the  meaning  of  a  provision  in  an  agent's 
contract  that  the  commissions  specified  in 
the  contract  shall  not  apply  to  any  new 
forms  of  policies  hereafter  adopted.  Bos- 
well V.  Securitv  Mut.  L.  Ins.  Co.  19:  946, 
86  N.  E.  532,  193  N.  Y.  465. 

34.  An  insurance  compp.ny  is  chargeable 
with  the  negligence  of  its  agent  in  failing 
for  an  unreasonable  time  to  forward  an 
application  and  medical  report  for  ac- 
ceptance or  rejection*  Duffy  v.  Bankers' 
L.  Asso.  46:  25,  139  N.  W.  1087,  160  Iowa,  19. 

35.  Where  the  agent  of  an  insurance 
company,  who  has  taken  an  application  for 
insurance  of  corn  against  destruction  by 
hail,  at  a  season  when  such  destruction  is 
imminent,  and  accepted  a  note  of  the  ap- 
plicant in  payment  of  the  premium,  un- 
reasonably delays  sending  in  the  applica- 
tion while  attempting  to  discount  the  note, 
and  finally  sends  both  the  application  and 
the  note  to  the  company,  which  accepts 
them  and  issues  a  policy,  but,  owing  to  the 

97 


1538 


INSURANCE,   I.  d. 


delay,  not  until  after  the  corn  is  destroyed 
by  hail,  such  insurance  company  is  liable 
in  an  action  for  damages  for  the  negligence 
of  its  agent  in  thus  delaying  the  applica- 
tion. Boyer  v.  State  Farmers'  Mut.  Hail 
Ins.  Co.  40:  164,  86  Kan.  442,  121  Pac.  329. 

(Annotated) 
'Which  party  deemed  the  principal. 
Federal  courts  following  state  decision   as 

to,  see  Courts,  323. 
See  also  infra,  512. 

36.  An  insurance  broker  to  whom  a  prop- 
erty owner  makes  a  request  for  insurance, 
and  who,  acting  as  broker,  procures  a  part 
of  such  insurance  through  agents  of  other 
companies  not  represented  by  him,  is,  as  to 
such  insurance,  the  agent  of  the  insured, 
where  he  had  charge  of  the  selection  of  the 
company  and  of  the  insurance  of  the  prop- 
erty, with  power  to  reviye  the  policies  upon 
their  expiration,  the  supervision  and  control 
of  which  remained  in  the  insured.  Morris 
McGraw  Woodenware  Co.  v.  German  F.  Ins. 
Co.  38:  614,  52  So.  183,  126  La.  32. 

37.  An  insurance  broker  who  is  employed 
by  a  property  owner  as  agent  does  not  be- 
come the  agent  of  an  insurance  company 
with  which,  through  its  agent,  he  has  placed 
a  portion  of  the  insurance,  merely  because 
the  agent  of  such  company  shares  his  com- 
missions on  such  insurance  with  the  broker, 
so  as  to  render  the  giving  of  notice  by  the 
insured  to  the  broker  to  cancel  such  insur- 
ance notice  to  the  insurer  so  as  to  effect  a 
cancelation  thereof.  Morris  McGraw  Wood- 
enware Co.  V.  German  F.  Ins.  Co.  38:  614, 
52  So.   183,  126  La.  32.  (Annotated) 

38.  In  the  absence  of  waiver  or  estoppel, 
if  the  cashier  of  a  bank,  who  is  also  agent 
for  an  insurance  company,  after  issuing  a 
policy  on  the  bank  property  containing  a 
provision  against  additional  insurance,  se- 
cures additional  insurance  in  another  com- 
pany, the  policy  becomes  void.  First  Nat. 
Bank  v.  German  American  Ins.  Co.  38:  213, 
134  N.  W.  873,  23  N.  D.  139. 

39.  An  insurance  agent  who,  after  receiv- 
ing a  person's  consent  to  take,  a  policy,  pre- 
sents it  to  a  company  other  than  his  own, 
stating  that  he  personally  solicits  and  rec- 
ommends the  risk,  does  not  act  as  the  agent 
of  the  insurer  so  as  to  bind  it  with  his 
knowledge  of  the  falsity  of  statements  made 
in  the  application,  although  the  insurer  de- 
livers the  policy  to  him  to  be  delivered  to 
the  applicant.  Travelers  Ins.  Co.  v.  Thome, 
38:  626,  180  Fed.  82,  103  C.  C.  A.  436. 

(Annotated) 

FoTveTg  and  duties. 

Estoppel  or  waiver  as  affected  by  powers 
of,  see  infra,  V.  b,  3. 

Insurance  on  property  in  which  agent  is 
interested,  see  infra,  115. 

Power  to  bind  company  by  oral  agreement 
as  to  rates,  see  infra,  415-417. 

Review  on  appeal  of  finding  as  to  author- 
ity of  insurance  agent,  see  Appeal  and 
Error,  992. 

See  also  infra,  412. 

Digest  1-52  Ii.R.A.(N.S.) 


40.  An  insurance  company  is  bound  by 
the  acts  and  statements  of  an  agent  to 
whom  is  intrusted  the  delivery  of  drafts  in 
settlement  of  a  claim,  which  are  part  of 
the  negotiations  leading  to  its  settlement. 
New  York  L.  Ins.  Co.  v.  Chittenden,  ii: 
233,  112  N.  W.  96,  134  Iowa,  613. 

41.  One  dealing  with  a  local  insurance 
agent  is  required  to  take  notice  that  by  the 
terms  of  his  employment  his  authority  does 
not  include  power  orally  to  change  the 
clause  of  a  policy  relating  to  vacancy  of  in- 
sured buildings.  Harris  v.  North  American 
Ins.  Co.  4:  1137,  77  N.  E.  493,  190  Mass.  361. 

42.  An  agent  for  a  lire  insurance  com- 
pany, whose  powers  are  strictly  defined  and 
limited  by  the  express  terms  of  the  contract 
of-  insurance,  cannot  act  so  as  to  bind  his 
company  beyond  the  scope  of  his  authority. 
Deming  Invest.  Co.  v.  Shawnee  F.  Ins.  Co. 
4:  607,  83  Pac.  918,  16  Okla.  1. 

43.  An  insurance  agent  having  no  power 
expressly  to  waive  the  provisions  of  a  policy 
rendering  it  void  in  case  the  premises  be- 
come vacant  cannot  surrender  the  contract- 
ual right  of  his  employer  by  issuing  a  policy 
on  vacant  property.  Harris  v.  North  Amer- 
ican Ins.  Co.  4:  1137,  77  N.  E.  493,  190  Mass. 
361. 

44.  An  insurance  company  is  bound  by 
the  act  of  its  medical  examiner  in  report- 
ing an  applicant  to  be  a  fit  subject  for  in- 
surance, unless  he  was  purposely  misled  by 
the  applicant,  and  inveigled  into  recom- 
mending him  as  a  fit  subject  for  insurance 
when  but  for  such  deception  he  would  not 
have  done  so.  Roe  v.  National  L.  Ins. 
Asso.  17:  1144,  115  N.  W.  500,  137  Iowa, 
696. 

45.  An  insurance  agent  cannot  issue  a 
policy  on  his  own  property  in  favor  of  a 
mortgagee  who  has  knowledge  of  the  facts, 
which  will  be  binding  on  his  principal,  if 
it  never  receives  notice  of  the  transaction, 
or  any  premium  for  the  risk.  Salene  v. 
Queen  City  F.  Ins.  Co.  35:  438,  116  Pac, 
1114,  59  Or.  297. 

46.  An  insurance  agent  with  power  to 
issue  policies  has  no  authority,  upon  direc- 
tion by  his  con;ipany  to  cancel  tlie  policy 
paid  for  and  delivered,  to  transfer  the  risk 
en  behalf  of  the  applicant  to  another  com- 
pany represented  by  him.  Waterloo  Lum- 
ber Co.  V.  Des  Moines  Ins.  Co.  51:  539,  138 
N.  W.  504,  158  Iowa,  563.  (Annotated) 

47.  An  insurer  is  responsible  for  repre- 
sentations made  by  its  agent  to  one  who 
proposed  to  let  an  existing  policy  lapse,  to 
the  effect  that  after  the  payment  of  pre- 
miums for  a  certain  period  the  assured 
would  be  entitled  to  a  paid-up  policy, 
though  the  employment  of  the  agent  was 
only  to  procure  proposals  for  insurance. 
Kettlewell  v.  Refuge  Assur.  Co.  3  B.  R.  C. 
844,  [1908]  1  K.  B.  545.  Also  Reported  in 
77  L.  J.  K.  B.  N.  S.  421,  97  L.  T.  N.  S.  896, 
24  Times  L.  R.  217,  52  Sol.  Jo.  158. 
Personal  liability. 

Agent's  liability  for  failure  to  comply  with 
instructions  to  reduce  policy  to  speci- 
fied amount,  see  Damages,  305. 


INSURANCE,  II.  a,  b. 


153U 


48.  OffiwTS  ol  a  mutual  fire  insurance 
company  are  not  liable  to  a  member  for  the 
amount  due  him  for  a.  loss  because  they 
organized  the  members  of  the  branch  which 
was  liable  for  the  loss  into  a  new  company, 
leaving  the  branch  in  a  state  of  suspended 
animation.  Perry  v.  Farmers'  Mut.  F.  Ins. 
Asso.  2:  165,  51  S.  E.  1025,  139  N.  C.  374. 

40.  A  member  of  a  mutual  fire  insurance 
company,  whose  loss  is  to  be  paid  by  as- 
sessments upon  the  other  members,  cannot 
hold  the  officers  of  the  association  person- 
ally liable  for  his  loss  because  they  diverted 
funds  of  the  association  to  other  purposes, 
if  they  did  not  arise  from  an  assessment 
made  for  his  benefit,  so  that  he  had  no  lien 
on  them.  Perry  v.  Farmers'  Mut.  F.  Ins. 
Asso.  2:  165,  51   S.  E.  1025,  139  N.  C.  374. 

(Annotated) 

50.  Written  instructions  to  a  fire  insur- 
ance agent  who  Jias  power  to  cancel  policies, 
that  his  company  cannot  carry  a  certain 
policy  on  a  grain  elevator  buildinjil because 
it  calls  for  an  amount  above  the  maximum 
line,  and  the  insurance  law  prohibits  the 
carrying  of  the  reinsurance  held,  thereby 
necessitating  its  cancelation,  and  directing 
that  he  relieve  the  company  of  liability 
thereon  at  the  earliest  possible  moment,  are 
not  reasonably  susceptible  of  the  construc- 
tion by  the  agent  that  he  should  relieve 
the  insurer  of  its  liability  only  at  such  time 
as  he  could  place  such  insurance  with  an- 
other company,  so  as  to  relieve  him  from  lia- 
bility to  the  insurer  for  the  loss  sustained 
by  it  because  of  his  failure  promptly  to 
comply  therewith,  by  reason  of  having  acted 
in  accordance  with  such  construction.  Queen 
City  F.  Ins.  Co.  v.  First  Nat.  Bank,  22:  509, 
120  N.  W.  545,  18  N.  D.  603. 

51.  An  agent  of  a  fire  insurance  company 
who  fails  to  comply  promptly  with  his  com- 
pany's clear  and  specific  written  instructions 
to  cancel  a  certain  policy  at  the  earliest 
possible  moment  is  liable  to  the  company  for 
loss  sustained  because  of  such  failure.  Queen 
City  F.  Ins.  Co.  v.  First  Nat.  Bank,  22:  509, 
120  N.  W.  545,  18  N.  D.  603.      (Annotated) 

II.   Insurable  interest. 

a.  In  property. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  ownership  of  insured  property,  see 
infra.  III.  e,  1,  b. 

Assignment  to  one  having  no  insurable  in- 
terest, see  infra,  451-458. 

52.  An  equitable  title  to  real  estate  gives 
an  insurable  interest  to  warrant  a  policy 
in  the  name  of  its  owner,  insuring  it 
against  loss  by  fire.  Scott  v.  Dixie  F.  Ins. 
Co.  40:  152,  74  S.  E.  659,  70  W.  Va.  533. 

53.  Real  estate  acquired  for  a  partner- 
ship with  partnership  means,  and  used  in 
its  business,  gives  the  partnership  an  "in- 
surable interest"  to  warrant  a  policy  in- 
suring it  against  loss  by  fire.  Scott  v.  Dixie 
JDisest  1-52  I..R.A.(N.S.) 


F.  Ins.  Co.  40:  152,  74  S.  E.  659,  70  W.  Va, 
533. 

54.  The  interest  of  one  who  has  a  parol 
lease  of  a  building  for  the  life  of  its  owner 
at  one  half  the  rental  value,  and  who 
has  made  improvements  at  his  own  ex- , 
pense,  is  insurable.  Getchell  v.  Mercan- 
tile &  Manufacturers'  Mut.  F.  Ins.  Co.- 
42:  135,  83  Atl.  801,  109  Me.  274. 

( Annotated  >, 

55.  A  man  has  an  insurable  interest  Iri 
a  house,  the  title  to  which  is  in  his  wife, 
but  which,  with  her  consent,  he  occupies  as 
a  dwelling  for  himself  and  family.  Kludt 
V.  German  Mut.  F.  Ins.  Co.  45:  1131,  140  N. 
W.  321,  152  Wis.  637.  (Annotated) 

56.  After  the  owner  of  real  estate  which 
is  subject  to  a  deed  of  trust  executed  there- 
on to  secure  a  debt  by  his  vendor  sells  and 
conveys  the  property,  reserving  his  vendor's 
lien  thereon  for  the  purchase  money,  such 
conveyance  being  subject  to  the  deed  of 
trust,  he  has  no  interest  in  the  real  estate 
except  as  to  his  vendor's  lien,  and  no  other 
insurable  interest  therein.  Baker  v.  Monu- 
mental Sav.  &  L.  Asso.  3:  79,  52  S.  E.  403,  58 
W.  Va.  408. 

57.  By  the  execution  of  a  contract  to 
sell  and  convey  insured  premises  in  fee,  and 
the  transfer  of  possession  thereunder,  a  com- 
plete transition  of  the  equitable  and  benefi- 
cial ownership  from  the  vendors  to  the  ven- 
dee is  effected,  subject  only  to  the  claim  of 
the  vendors  for  unpaid  purchase  money,  al- 
though the  vendors  still  retain  the  legal  ti- 
tle to  the  land,  since  they  hold  it  as  trustees 
for  the  vendee,  who  becomes  the  owner  in  eq- 
uity and  possessed  of  an  insurable  interest 
in  the  property.  Grunauer  v.  Westchester 
F.  Ins.  Co.  (N.  J.  Err.  &  App.)  3:  107,  62 
Atl.  418,  72  N.  J.  L.  289.  (Annotated) 

6.  In  life. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.)  .    ;■ 

Provisions  of  by-laws  as  to,  see  infra,  101, 
102. 

Effect  of  incontestable  clause,  see  infra, 
364. 

Assignment  to  one  having  no  insurable  in- 
terest, see  infra,  451—458. 

Right  of  manufacturing  company  to  insure 
officer's  life,  see  Corporations,  89. 

Enforcement  in  equity  of  promise  of  bene- 
ficiary to  pay  proceeds  of  policy  to 
third  person  having  no  insurable;  in- 
terest, see  Equity,  73. 

Presumption  as  to  husband's  insurable  in- 
terest in  life  of  wife,  see  Evioknce, 
544. 

Retrospective  operation  of  statute  as  to 
insurable  interest  of  beneficiary,  see 
Statutes,  313. 

Trust  where  beneficiary  agrees  to  pay  pro- 
ceeds of  policy  to  person  not  having 
insurable  interest,  see  Trusts,  18. 

See  also  infra,  101,  102,  590,  830,  835. 

58.  One  may  insure  his  own  life  for  the 
benefit  of  another  having  no  insurable  in- 


1540 


INSURANCE,  II.  b. 


terest  tberciii,  wliere  he  inakea  tlie  contract 
ami  pays  the  piemiunis  himself.  Rupp  v. 
Western  Life  Indemnity  Co.  29:  675,  127  S. 
W.  490,  138  Ky.  18. 

59.  The  insurance  of  one's  life  for  the 
benefit  of  another  having  no  insurable  inter- 
est therein  is  not  contrary  to  public  policy. 
Dolan  V.  Supreme  Council  C.  M.  B.  A.  16: 
555,  116  N.  W.  383,  152  Mich.  266,  reversing 
on  rehearing  13:  424,  113  N.  W.  10,  — 
Mich.  — .  (Annotated) 

60.  The  naming  of  an  ineligible  person 
as  beneficiary  in  an  application  for  a 
mutual  benefit  certificate  does  not  render 
the  certificate  .void.  Cunat  v.  Supreme 
Tribe  of  Ben  Hur,  34:  1192,  94  N.  E.  925, 
249  111.  448.  (Annotated) 

61.  It  is  against  public  policy  and  con- 
trary to  law  to  permit  anyone  to  obtain 
insurance  upon  the  life  of  a  human  being 
by  assignment  or  otherwise,  where  such 
person  has  no  insurable  interest  in  the  life 
of  the  insured.  Metropolitan  L.  Ins.  Co. 
V.  Elison,  3:  934,  83  Pac.  410,  72  Kan.  199. 

( Annotated ) 

62.  A  woman  who  takes  a  girl  from  an 
orphan  asylum  and  gives  her  a  home,  under 
circumstances  calculated  to  raise  reasona- 
ble expectation  of  help  and  care  from  her 
during  the  declining  years  of  the  benefac- 
tress, has  an  insurable  interest  in  her  life, 
although  she  is  not  formally  appointed  her 
guardian.     Thomas  v.  National  Ben.  Asso. 

(N.  J.   Err.   &  App.)    46:  779,  86  Atl.   375, 
84  N.  J.  L.  281.  (Annotated) 

63.  A  life  insurance  policy  taken  out  by 
a  man  in  favor  of  his  paramour,  with  whom 
he  is  illegally  living  as  his  wife,  may  be 
collected  by  her.  Mutual  L.  Ins.  Co.  v. 
Cummings,  47:  252,  126  Pac.  982,  133  Pac. 
1169,   66  Or.   272.  (Annotated) 

64.  An  undertaker  designated  by  a  burial 
association  to  bury  its  members  for  a  speci- 
fied sum  each  has  no  insurable  interest  in 
such  lives,  within  the  meaning  of  a  statute 
forbidding  the  taking  of  an  application  of 
insurance  in  favor  of  any  person  who  has 
not  a  bona  fide  interest  in  the  life  of  the 
insured.  State  v.  Willett,  23:  197,  86  N.  E. 
68,  171  Ind.  296. 
Relative  or  dependent. 
Effect  of  false  statement  in  application  as 

to  relationship,  see  infra,  319. 
See  also  infra,  89,  839,  848. 

65.  A  member  of  a  fraternal  or  benefit 
organization  who  insures  his  life  and  pays 
the  premiums  cannot  designate  as  bene- 
ficiaries blood  relatives  who  have  no  insur- 
able interest  in  his  life,  although  permitted 
to  do  so  by  the  charter  of  the  order,  where 
it  is  contrary  to  statute  for  these  associa- 
tions to  issue  certificates  unless  the  bene- 
ficiaries have  a  legal  insurable  interest  in 
the  life  of  the  insured.  Morgan  v.  Segen- 
felter,  14:  1172,  105  S.  W.  476,  127  Ky.  348. 

66.  To  entitle  the  beneficiary,  who  bears 
the  relation  of  dependent,  to  recover  on  a 
certificate,  the  law  does  not  undertake  to 
prescribe  just  what  degree  of  dependence 
is  necessary.  The  test  in  each  case  should 
be  good  faith,  purity  of  purpose,  material 
dependence,  and  material  support.  Sov- 
Dieest  1-52  L.R.A.(N.S.) 


ereign    Camp    W.    of    VV.    v.    Ncel,    41:648^ 
126  Pac.  787,  34  Okla.  596. 

67.  Where  the  constitution  and  by-Iawa 
of  a  fraternal  benefit  association  and  the 
statutes  under  which  its  charter  is  ob- 
tained, each  authorize  the  issuance  of  bene- 
ficiary insurance  certificates  to  member& 
of  the  family,  heirs,  blood  relation,  or  per- 
sons dependent  upon  the  member,  the  terra 
"dependent,"  as  tlierein  used,  may  include 
an  affianced  wife.  Sovereign  Camp  W.  of 
W.  v.  Noel,  41:  648,  126  Pac.  787,  34  Okla. 
596. 

68.  An  acquaintance  who,  at  the  advice 
of  a  member  of  a  benefit  society  and  under 
his  promise  to  take  care  of  her  while  he 
lives,  has  married  a  man  capable  of  sup- 
porting her,  and  to  whose  support  such 
member  has  contributed,  is  not  dependent 
upon  him,  within  the  meaning  of  that  phrase 
in  the  by-laws  of  the  order  defining  those 
to  whom  certificates  may  be  made  payable. 
Caldwelfrv.  Grand  Lodge  A.  O.  U.  W.  2:  653, 
82  Pac.  781,  148  Cal.  195.  (Annotated) 

69.  Where  a  woman,  who  is  without 
means,  in  good  faith  leaves  her  own  home 
and  work,  and  assumes  and  for  years  faith- 
fully performs  the  duties  of  a  housekeeper 
for  a  member  of  a  fraternal  beneficiary  as- 
sociation, not  related  to  her  by  consanguin- 
ity, under  an  agi'eement  that  in  consider- 
ation for  such  services  he  will  support  her, 
and  at  his  death  leave  her  his  estate,  and 
no  evidence  is  ofi'ered  showing  any  improper 
relations  between  them,  she  thereby  be- 
comes a  dependent  upon  such  member,  and 
as  such  is  eligible  as  a  beneficiary  in  a 
certificate  of  membership  issued  to  him  by 
the  association  of  which  he  is  a  member. 
Gofi"  V.  Supreme  Lodge  Royal  Achates,  37: 
1191,  134  N.  W.  239,  90  Neb.  578. 
Affianced  wife. 

Interests  of,  in  benefit  certificates,   see  in- 
fra, 849. 
See  also  supra,  67. 

70.  A  hotel-keeper  who  agrees  to  fur- 
nish a  home  for  life  to  a  member  of  a  bene- 
fit insurance  society  who  is  not  related  to 
him,  in  consideration  that  his  name  should 
be  placed  in  the  benefit  certificate  as  bene- 
ficiary, which  is  done,  he  being  designated 
as  a  "dependent,"  is  not  a  dependent  with- 
in the  meaning  of  a  law  providing  that  pay- 
ments of  death  benefits  shall  only  be  paid 
to  blood  relatives,  etc.,  or  "to  persons  de- 
pendent upon  the  member,"  and  has  no  val- 
id claim  against  the  order  as  a  beneficiary 
although  he  has  fully  performed  his  part 
of  the  agreement.  Modern  Woodmen  of 
America  v.  Comeaux,  25:  814,  101  Pac.  1, 
79  Kan.  493.  (Annotated) 

71.  A  benefit  society  which  issues  a  cer- 
tificate in  favor  of  a  woman  who  married 
assured  with  knowledge  that  he  had  a  wife 

I  living,  under  the  belief  that  she  was  his 
lawful  wife,  cannot,  as  against  the  claim  of 
the  lawful  wife,  justify  payment  of  the 
benefit  to  her  upon  his  death,  on  the  theory 
that  she  was  dependent  on  him  for  support, 
since,  although  he  had  supported  her,  he 
was  not  obliged  to  do  so,  either  legally  or 

'.a,yi).A.H..i  Sfi- 


INSURANCE,  III.  a. 


1541 


morally.    Duenser  v.  Supreme  Council  of  R. 
A.  51:  726,   104  N.  E.  801,  262  111.  475. 

(Annotated) 
72.  -Under  the  by-laws  of  a  fraternal 
benefit  association  and  a  statute  governing 
such  associations,  limiting  beneficiaries  and 
payments  of  death  benefits  to  those  depend- 
ent upon  tlie  insured,  a  woman  who  has 
obtained  a  divorce  from  her  former  hus- 
band and  a  judgment  for  alimony  is  not 
entitled  to  be  regarded  as  a  dependent  upon 
him  so  that  after  his  death  she  can  collect 
an  insurance  policy  issued  by  such  an  asso- 
ciation while  she  was  still  his  wife  and 
naming  lier  as  beneficiary,  although  the 
judgment  for  alimony  is  still  uncollected, 
upon  the  mere  showing  that  such  judgment 
is  uncollected  without  showing  that  there 
was  no  way  in  which  the  judgment  can 
be  satisfied.  Johnson  v.  Grand  I-K)dge  A. 
0.  U.  W.  50:  461,  137  Pac.  1190,  91  Kan. 
.•314. 

73.  One  not  a  relative  or  member  of  the 
family  of  a  member  of  a  mutual  benefit 
society  is  not  dependent  upon  him  within 
the  meaning  of  a  statute  permitting  bene- 
fit certificates  to  be  issued  in  favor  of  de- 
pendents, merely  because  the  member  has 
been  in  tlie  habit,  of  gratuitously  furnish- 
ing a  portion  of  the  support  of  such  person. 
League  v.  Shields,  36:  208,  96  N.  E.  45,  251 
111.   250.  (Annotated) 

74.  An  adult  son  has  an  insurable  inter- 
est in  the  life  of  his'  mother  although  he  is 
not  dependent  upon  her  for  support  and  has 
no  direct  pecuniary  interest  in  her  life. 
Woods  v.  Riner,  19:  233,  113  S.  W.  79,  130 
Ky.  162.  (Annotated) 

75.  An  uncle  of  one  whose  life  is  in- 
sured has  no  insurable  interest  in  the  life 
of  the  insured  by  reason  of  kinship.  Met- 
ropolitan L.  Ins.  Co.  V.  Elison,  3:  934,  83 
Pac.  410,  72  Kan.  199. 

76.  An  uncle  has  not,  merely  because 
of  his  relationship,  an  insurable  interest  in 
the  life  of  his  nephew.  McRae  v.  War- 
mack,  33:  949,  135  S.  W.  807,  98  Ark.  52. 

77.  A  woman  has  an  insurable  interest 
in  the  life  of  her  brother,  although  she  is 
married,  and  not  dependent  on  him  for  sup- 
port. Re  Phillips,  45;  982,  86  Atl.  289,  238 
Pa.  423.  (Annotated) 

78.  First  cousins  of  the  insured,  who  are 
not  his  creditors  or  dependent  upon  him, 
have  not  an  insurable  interest  in  his  life, 
within  the  meaning  of  statutes  forbidding 
the  issuance  of  certificates  or  policies  in 
favor  of  beneficiaries  who  have  not  such  an 
interest.  Morgan  v.  Segenfelter,  14:  11 72, 
105  S.  W.  476,  127  Ky.  348.       (Annotated) 

79.  A  stepfather,  not  a  member  of  one's 
household,  nor  maintaining  the  usual  fam- 
ily relations  toward  him,  is  not  a  member 
of  his  family,  within  the  meaning  of  that 
term  in  a  statute  permitting  payment  of 
a  mutual  benefit  fund  to  the  family  of  the 
holder  of  the  certificate.  Supreme  Lodge  0." 
of  M.  P.  V.  Nevins,  3:  334,  106  N.  W.  140, 
142  Mich.  666.  (Annotated) 

80.  Under  a  statute  providing  that  the 
holder  of  a  benefit  certificate  must  desig- 
nate a  relo.tive,  fianc^,  or  dependent  person 
Digest  1-52  L.R.A.(N.S.) 


I  as  beneficiary  his  attempt  to  make  the  cer- 
tificate payable  to  his  estate  is  void,  and 
does  not  deprive  a  prior  properly  designated 
beneficiary  of  the  fund.  Sturges  v.  Sturges, 
12:  1014,  102  S.  W.  884,  126  Ky.  80. 

///.    The  policy  or  contract, 

a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Estoppel  of  company  by  issuing  and  deliver- 
ing, see  infra,  V.  b,  5,  c. 
Instruction    as   to   burden    of   proof    as   to 
execution  of  contract,  see  Appeal  and 
Error,  1385. 

Right  of  trustee  in  bankruptcy  to  set  aside 
future  annuity  contracts,  see  Bank- 
ruptcy,  67. 

Compromise  of  claim  on  policy,  see  Com- 
promise and  Settlement,  8. 

Conflict  of  laws  as  to  insurance  contracts, 
see  Conflict  of  Laws,  I.  b,  3. 

Effect  of  death  of  insured  between  mailing 
of  acceptance  of  option  and  its  receipt 
by  company,  see  Contracts,  187. 

Right  of  insured  to  inspection  of  books 
and  papers  of  company  to  enable  him 
to  exercise  options  under  policy,  see 
Discovery  and  Inspection,  24. 

Judicial  notice  of  custom  to  require  prop- 
erly signed  and  executed  application 
and  medical  examination,  see  Evidence, 
54. 

Presumption  and  burden  of  proof  as  to 
execution  of  contract,  see  Evidence, 
550,    551. 

Presumption  that  marginal  entries  on  ap- 
plication were  made  after  it  was  signal, 
see  Evidence,  602. 

Parol  evidence  of  fraud  in  procuring,  see 
Evidence,  1017. 

Parol  evidence  to  vary  contract,  see  Evi- 
dence, 916,  918,  921. 

Transfer  tax  on  policy  issued  by  local  cor- 
poration upon  life  of  nonresident,  see 
Taxes,  348. 

Question  of  existence  of  contract  as  one  for 
jury,  see  Trial,  645. 

See  also  supra,  24,  25. 

81.  A  property  owner  may,  after  loss 
and  before  the  insurer  has  withdrawn  from 
the  contract,  ratify  the  unauthorized  act 
of  his  agent  in  securing  insurance  upon  his 
property.  Marqusee  v.  Hartford  F.  Ins. 
Co.  42:  1025,  198  Fed.  475,  1023,  119  C.  C.  A. 
251.  (Annotated) 

82.  There  is  no  contract  of  insurance 
unless  the  minds  of  the  parties  have  met  in 
agreement  as  to  (a)  the  subject-matter,  (b) 
the  risk  insured  against,  (c)  the  period 
of  risk,  (d)  the  amount  of  insurance,  and 
(e)  the  premium.  Dorman  v.  Connecticut 
F.  Ins.  Co.  51 :  873,  139  Pac.  262,  41  Okla 
509. 

83.  Tlie  fixing  of  a  time  for  its  com- 
mencement is  necessary  to  the  completion 
of  a  contract    of    insurance.     Whitman    v. 


1542 


INSURANCE,  III.  a. 


Milwaukee    F.   Ins.   Co.   5:  407,    107   N.   W. 
291,  128  Wis.  124. 

84.  A  benefit  certificate  cannot  become 
effective  until  applicant  has  been  initiated 
into  the  order,  where  such  initiation  is,  by 
the  laws  of  the  order,  made  a  condition 
precedent  to  the  execution  of  a  contract  of 
insurance.  Sovereign  Camp,  W.  W.  v. 
Hall,  41:  517,  148  S.  W.  526,  -104  Ark.  338. 
Validity  generally. 

Validity  as  affected  by  insurable  interest, 
see  supra,  II. 

Unauthorized  contracts  by  foreign  company, 
see  supra,  20,  21. 

On  furniture  used  in  keeping  house  of  pros- 
titution, see  Contracts,  444. 

Burden  of  proving  validity,  see  Evidence, 
547. 

Joint  policy  by  husband  and  wife,  payable 
upon  death  of  either  to  survivor,  see 
Husband  and  Wife,  33. 

85.  A  policy  of  insurance  issued  in  the 
adopted  name  of  the  applicant,  rather  than 
in  that  given  him  by  his  parents,  is  valid. 
Smith  V.  United  States  Casualty  Co.  ,a6: 
1 167,  90  N.  E.  947,  197  N.  Y.  420. 

86.  An  insurance  policy  may  be  made  in 
favor  of  one  by  an  adopted  name.  Mutual 
L.  Ins.  Co.  V.  Cummings,  47:  252,  133  Pac. 
11G9,  66  Or.  272. 

87.  A  provision  in  a  mutual  benefit  cer- 
tificate making  conclusive  the  decision  of 
the  association  upon  the  question  whether 
or  not  a  member  is  entitled  to  the  benefit 
provided  is  void  as  against  public  policy. 
Supreme  Council  C.  B.  L.  v.  Grove,  36:  913, 
96  N.  E.  159,  176  Ind.  356. 

88.  A  mutual  benefit  certificate,  not 
countersigned  as  required  by  its  provisions, 
is  not  valid  in  the  hands  of  the  beneficiary, 
in  the  absence  of  anything  to  show  a  waiver 
on  the  part  of  the  association  of  the  defect- 
ive execution.  Caywood  v.  Supreme  Lodge 
K.  &  L.  of  H.  23:  304,  86  N.  E.  482,  171 
Ind.  410. 

89.  That  a  son,  in  taking  insurance  on 
the  life  of  his  mother,  contracts  with  a  cous- 
in to  pay  a  portion  of  the  premiums  and 
share  in  the  proceeds  of  the  policy,  does  not 
invalidate  the  policy  so  far  as  the  rights  of 
the  son  are  concerned.  Woods  v.  Riner,  19: 
233,  113  S.  W.  79,  130  Ky.  162. 

90.  A  contract  by  which  an  insurance 
company  undertakes  for  a  present  cash  pre- 
mium to  pay  to  the  insured  annuities  be- 
ginning at  a  designated  future  time,  and 
continuing  during  his  life,  is  not  invalid 
as  against  public  policy.  Mutual  L,  Ins. 
Co.  V.  Smith,  33:  439,  184  Fed.  1,  106  C.  C. 
A.   593. 

91.  A  contract  of  insurance  of  whisky 
stored  in  Iowa  is  not  void  because  it  tends 
to  assist  the  insured  to  violate  the  public 
policy  and  laws  of  Iowa  against  the  posses- 
sion and  sale  of  intoxicating  liquors  there- 
in. Mechanics  Ins.  Co.  v.  C.  A.  Hoover 
Distilling  Co.  31 :  873,  182  Fed.  590,  105  C. 
C.  A.  128.  (Annotated) 

92.  The  placing  by  a  dealer  of  a  musical 
instrument  in  a  house  of  ill  fame,  with  a 
hope  of  selling  it  to  the  proprietor,  is  not 
so  far  against  public  policy  as  to  avoid 
Digest  1-52  L.R.A.(N,S.) 


a  policy  of  insurance  upon  the  instrument. 
Electrova    Co.    v.    Spring    Garden    Ins.    Co. 
35:  1216,  72  S.  E.  306,  156  N.  C.  232. 
Constitution,  rules,  and  by-la\irs. 

Waiver  as  to,  see  infra,  536-538,  551,  562, 
586,  589,  592,  595,  598,  599,  612-614. 

Effect  of  failure  of  insurer  to  introduce  by- 
laws in  evidence  in  action  on  benefit 
certificate,  see  Appil\l  and  Ebrob, 
1089. 

General  provisions  in,  and  changes  of,  con- 
stitution, by-laws,  etc.  of  benefit  socie- 
ties, see  Benevolent  Societies,  111. 

Question  for  jury  as  to  whether  accident 
came  within  meaning  of  by-law,  see 
Trial,  650. 

93.  A  by-law  of  an  insurance  company 
that  the  mailing  of  notices  of  assessments 
may  be  conclusively  shown  by  the  certifi- 
cate of  an  oflScer  of  the  corporation  who  is 
not  required  to  be  personally  cognizant  of 
the  fact  is  unreasonable  and  void.  Dufly 
V.  Fidelity  Mut.  L.  Ins.  Co.  7:  238,  55  S.  E. 
79,  142  N.   C.   103.  (Annotated) 

94.  A  rule  of  a  benefit  society  excluding 
s-  icchmen  in  railroad  yards  from  partici- 
pation in  its  benefits,  while  permitting 
brakemen,  who  also  do  switching,  to  par- 
ticipate, is  not  so  unreasonable  as  to  be 
void.  Norton  v.  Catholic  Order  of  Forest- 
ers, 24:  1030,  114  N.  W.  893,  138  Iowa,  464. 

95.  One  receiving  a  benefit  certificate  aa 
a  railroad  brakeman  and  switchman,  who 
agrees  to  be  governed  by  future  by-laws  of 
the  order,  cannot  complain  that  a  subse- 
quent ty-law  which  excludes  switchmen  in 
railroad  yards  from  participation  in  the 
benefits  of  the  society  is  unreasonable  as 
to  him,  and  therefore  void,  when  he  wishes 
to  engage  in  such  occupation.  Norton  v. 
Catholic  Order  of  Foresters,  24:  1030,  114 
N.  W.  893,  138  Iowa,  464.  (Annotated) 

96.  The  beneficiary  in  a  mutual  benefit 
certificate  cannot  complain  of  the  applica- 
tion to  the  contract  of  a  rule  adopted  after 
the  certificate  was  issued,  if  the  applicant 
expressly  agreed  at  the  time  the  certificate 
was  issued  that  rules  subsequently  adopted 
should  be  applicable.  Murphv  v.  Nowak, 
7:  393,  79  N.  E.  112,  223  HI.  30'l. 

97.  A  by-law  enacted  by  a  fraternal 
benefit  association  subsequent  to  the  is- 
suance of  a  fraternal  benefit  certificate, 
and  providing  for  its  forfeiture,  will  be 
strictly  construed  against  the  association. 
Lange  v.  Royal  Highlanders,  10:  666,  106 
N.  W.  224,  110  N.  W.  1110,  75  Neb.  188. 

98.  The  governing  body  of  a  fraternal 
benefit  association  which  has  not  complied 
with  Neb.  Acts  1897.  chap.  47.  p.  266.  §  1, 
by  adopting  a  representative  form  of  gov- 
ernment, is  without  power  to  adopt  a  by- 
law changing  the  terms  and  obligations  of 
a  mutual  benefit  certificate  theretofore  is- 
sued to  one  of  its  members.  Lange  v.  Roya! 
Highlanders,  10:  666,  106  N.  \Y.  224,  110 
N.  W.  1110,  75  Neb.  188. 

99.  A  provision  in  the  constitution  of  a 
mutual  insurance  company,  that  whoever 
sells  his  property  loses  his  right  under  the 
policy  does  not  avoid  a  policy  taken  by  a 
man  on  the  house  of  his  wife  in  which  ho 


INSURANCE,  III.  a. 


1543 


dwells.     Kludt  v.  German  Mut.  F.  Ins.  Co. 
45:  1131,  140  N.  W.  321,  152  Wis.  637. 

100.  Power  reserved  by  a  mutual  bene- 
fit society  to  amend  its  laws  does  not  au- 
thorize it  to  decrease  the  benefits  to  which 
a  member  is  entitled  by  the  terms  of  his 
contract,  such  as  the  right  to  relief  from 
assessments  upon  reaching  a  specified  age 
or  in  case  of  disability,  and  to  advance  pay- 
ments on  the  policy  under  certain  condi- 
tions. Wright  V.  Knights  of  the  Macca- 
bees, 31:  423,  89  N.  E.  1078,  196  N.  Y.  391. 

(Annotated) 

—  as   "^o  beneficiaries. 

101.  A  by-law  of  a  mutual  benefit  society 
forbidding  members  to  designate  as  benefi- 
ciaries persons  having  no  insurable  inter- 
est in  their  lives  is  not  presumed  to  apply 
to  designations  already  made.  Dolan  v.  Su- 
preme Council  C.  M.  B.  A.  16:  555,  116  N. 
W.  383,  152  Mich.  266,  reversing  on  re- 
hearing 13:  424,  113  N.  W.  10,  —  Mich.  — . 

102.  The  amendment  of  a  by-law  of  a 
mutual  benefit  society  so  as  to  limit  the 
persons  who  maj'  be  made  beneficiaries  in 
the  certificates  is  binding  on  a  member  v^ho 
agreed  to  conform  to  by-laws  subsequently 
to  be  adopted;  and  he  cannot,  after  its 
passage,  designate  a  person  as  beneficiary 
who  is  not  within  its  terms.  Caldwell  v. 
Grand  Lodge  A.  0.  U.  W.  2 :  653,  82  Pac. 
781,   148  Oal.   195. 

—  as   to  intemperance   er  engaging  in 

liquor  business. 

103.  A  by-law  of  a  fraternal  insurance 
society,  which  provides  that,  if  any  member 
heretofore  or  hereafter  adopted  shall  become 
intemperate  in  the  use  of  drugs,  the  bene- 
fit certificate  held  by  such  member  shall, 
by  such  acts,  become  and  be  absolutely  null 
and  x'oid  as  to  benefits,  and  all  payments 
made  thereon  shall  be  thereby  forfeited, 
does  not  apply  to  the  case  of  a  member 
who,  prior  to  the  enactment  of  such  by- 
law, had  become  intemperate  in  the  use  of 
drugs,  and  continued  so  thereafter.  Taylor 
v.  Modern  Woodmen  of  America,  5:  283,  83 
Pac.  1099,  72  Kan.  443.  (Annotated) 

104.  A  by-law  of  a  fraternal  insurance 
order,  which  provides  that  any  member  who 
shall,  after  the  date  of  its  adoption,  have 
entered,  or  who  shall  thereafter  enter,  into 
the  business  of  selling  intoxicating  liquors, 
shall  stand  suspended  from  his  rights  to 
j)articipate  in  the  beneficial  fund,  and  that 
his  certificate  shall  become  void  from  the 
date  of  his  engaging  in  such  occupation, 
does  no*-  in  terms,  apply  to  a  member  who, 
before  the  adoption  of  such  by-law,  was  en- 
gaged in  such  business,  and  who  has  re- 
mained in  it  continuously  thereafter.  Grand 
Lodge  A.  O.  U.  W.  v.  Haddock,  i:  1064, 
82  Pac.  583,  72  Kan.  35.  (Annotated) 

105.  The  adoption,  by  a  fraternal  insur- 
ance order,  of  a  by-law  declaring  that  no 
person  shall  be  admitted  or  retained  as  a 
member  who  is  engaged  in  the  sale  of  intox- 
icatini;  liquors,  does  not,  in  the  absence  of 
a  specific  provision  to  that  effect,  avoid  the 
beneficiary  certificate  of  a  member  who  is 
already  engaged  in  that  business  in  a  state 
Digest   1-52  L.R.A.(N.S.) 


where  it  is  not  unlawful,  who  continues 
therein,  and  against  whom  no  action  is  tak- 
en. Grand  Lodge  A.  0.  U.  W.  v.  Haddock, 
i:  1064,  82  Pac.  583,  72  Kan.  35. 

( Annotated ) 

106.  An  employee  in  a  bonded  warehouse 
engaged  in  bottling  aged  whisky  is  not 
within  a  provision  in  a  by-law  of  a  mutual 
benefit  society  making  void  certificates  of 
all  members  engaged  in  the  manufacture  or 
sale  of  intoxicating  liquor  as  a  beverage  in 
the  capacity  of  proprietor,  stockholder, 
agent,  or  employee.  Brackett  v.  Modern 
Brotherhood  of  America,  45:1144,  157  S. 
W.  690,  154  Ky.  340.  (Annotated) 

—  as  to  suicide. 

Effect  of  suicide  contrary  to,  see  infra,  708. 

107.  In  an  action  upon  a  mutual  benefit 
certificate,  where  the  defense  interposed  is 
that  the  deceased  committed  suicide,  where- 
by the  certificate  was  forfeited  under  the 
provisions  of  a  by-law  enacted  subsequent  to 
the  issuance  of  the  certificate,  an  attack 
on  the  by-law  on  the  ground  that  the  gov- 
erning body  was  without  power  to  adopt 
it  is  not  a  collateral  attack  on  the  right  of 
the  society  to  transact  business.  Lange  v. 
Royal  Highlanders,  10:  666,  106  N.  W.  224, 
110  N.  W.  1110,  75  Neb.  188. 

108.  A  by-law  legally  enacted  subsequent 
to  the  issuance  of  a  fraternal  benefit  cer- 
tificate, and  providing  for  its  forfeiture  if 
the  death  of  the  member  is  occasioned  by 
suicide,  whether  he  is  sane  or  insane  at  the 
time,  is  reasonable  and  will  be  upheld. 
Lange  v.  Royal  Highlanders,  10:  666,  100 
N.  W.  224,  110  N.  W.  1110,  75  Neb.  188. 

109.  An  amendment  of  the  by-laws  of  a 
mutual  fraternal  benefit  society,  limiting 
the  benefit  in  case  of  suicide  to  5  per  cent 
of  the  face  of  the  certificate  for  each  year 
the  member  has  been  continuously  a  mem- 
ber of  the  society,  is  unreasonable  and  void 
as  to  existing  members,  although  the  right 
to  change  its  by-laws  is  reserved  by  the 
society.  Olson  v.  Court  of  Honor,  8:  521, 
110  N.  W.  374,  100  Minn.  117.   (Annotated) 

110.  Agreement  of  a  member  of  a  mutual 
benefit  society  to  be  bound  by  subsequently 
enacted  rules  and  regulations  authorizes 
the  society  to  reduce  the  benefit  in  case  of 
suicide,  while  sane,  but  not  while  insane. 
Supreme  Conclave  I.  0.  H.  v.  Rehan,  46:308, 
85  Atl.  1035,  119  Md.  92.  (Annotated) 

111.  A  resolution  of  a  mutual-insurance 
society  lessening  the  time  after  inception  in 
which  the  policy  can  be  contested  for  sui- 
cide, and  increasing  the  premium  rates,  does 
not  apply  to  a  policy  previously  issued,  un- 
less the  insured  complies  with  the  new 
rates.  Sexton  v.  National  L.  Ins.  Co.  12: 
504,  90  Pac.  58,  40  Colo.  60.        (Annotated) 

—  as  to  adjustment  of  claims. 

112.  The  contract  or  vested  rights  of  a 
member  of  a  mutual  benefit  society  who 
has  agreed  to  be  bound  by  future  by-laws 
are  not  impaired  by  a  by-law  requiring 
that  all  claims  against  the  society  must  be 
submitted  for  adjustment  to  the  tribunals 
established  within  the  association.     Monger 


1544 


INSURANCE,  III.  a. 


V.  New  Era  Asso.  24:  1027,  121  N.  W.  823, 
156  Mich.   645.  (Annotated) 

113.  A  by-law  adopted  by  a  mutual  benefit 
society,  that  all  claims  against  it  must  be 
adjudicated  in  its  own  tribunal,  applies  to 
holders  of  existing  certificates.  Monger  v, 
New  Era  Asso.  24:  1027,  121  N.  W.  823,  156 
Mich.  645. 

114.  Provisions  in  the  constitution  and 
by-laws  of  a  benevolent  association,  deny- 
ing to  members  the  right  to  resort  to  the 
civil  courts  for  the  adjudication  of  con- 
troversies arising  between  them  and  the 
association  until  all  remedies  within  the 
order  are  exhausted,  and  requiring  an  ap- 
peal to  the  highest  tribunal  of  the  order, 
are  unreasonable  and  void  as  respects  a 
claim  upon  a  benefit  certificate,  which  ac- 
crues at  a  date  three  years  prior  to  the 
next  meeting  of  such  tribunal,  which  will 
be  held  in  a  foreign  country.  Lindahl  v. 
Supreme  Court  I.  0.  of  F.  8:  916,  110  N.  W. 
358,  100  Minn.  87.  (Annotated) 
Ota  property  in  Dchicli  agent  is  in- 
terested. 

115.  An  insurance  agent  cannot  bind  his 
principal  by  issuing,  without  notifying  the 
principal,  a  policy  upon  property  of  a  cor- 
poration in  which  he  is  a  director  and  of- 
ficer. Arispe  Mercantile  Co.  v.  Capital  Ins. 
Co.  9:  1084,  110  N.  W.  5Sl3,  133  Iowa,  272. 

(Annotated) 

116.  The  fact  that  an  agent  of  an  in- 
surance company  with  power  to  issue  poli- 
cies insured  property  on  which  the  bank  of 
which  he  was  cashier  held  a  mortgage  for 
about  one  half  the  amount  of  the  insurance, 
attaching  a  clause  making  the  loss,  if  any, 
payable  to  the  mortgagee  as  its  interest 
should  appear,  does  not,  in  the  absence  of 
fraud  or  collusion,  furnish  ground  for 
the  insurance  company  to  deny  its  liability 
on  account  of  the  agent's  relation  to  such 
mortgagee.  Citizens'  State  Bank  v.  Shaw- 
nee F.  Ins.  Co.  49:  972,  137  Pac.  78,  91  Kan. 
18.  (Annotated) 
Reneival. 

Invalidity  of  renewal,  see  infra,  287. 

117.  A  renewal  of  a  fire  insurance  policy 
is  not  a  new  contract  of  insurance.  Liver- 
pool &  London  &  Globe  Ins.  Co.  v.  Ajjricul- 
tural  Savings  &  Loan  Co.  1  B.  R.  C.  593,  33 
Can.  S.  C.  94. 

118.  A  statutory  provision  that  contracts 
of  fire  insurance  of  mercantile  and  manufac- 
turing risks  shall,  if  on  the  cash  system,  be 
for  terms  not  exceeding  one  year,  and  that 
such  contracts  may  be  renewed  by  renewal 
receipt  instead  of  a  policy,  does  not  give 
to  a  renewal  receipt  the  effect  of  reviving  a 
void  contract  of  insurance.  Liverpool  & 
London  &  Globe  Ins.  Co.  v.  Agricultural 
Savings  &  Loan  Co.  1  B.  R.  C.  593,  33  Can. 
S.  C.  94. 

119.  Mere  delay  in  rejecting  a  receipt 
for  renewal  of  an  accident  iirsurance  policy 
does  not  amount  to  an  acceptance  which 
will  continue  the  policy  in  force.  Rich- 
mond V.  Travelers'  Ins.  Co.  30:  954,  130  S. 
W.  790,  123  Tenn.  307. 

120.  An  accident  insurance  policy  is  not 
in  force  where  a  renewal  receipt  is  mailed 
Digest  1-52  L.R.A.(N.S.) 


by  the  agent,  held  by  the  insured  a  couple 
of  weeks,  and  returned  with  a  notice  to  dis- 
continue, although  the  agents  do  not  accept 
the  discontinuance,  but  write  assured  that 
they  will  hold  the  receipt  for  him  and  give 
him  credit  for  the  premium,  where  he  dies 
before  the  letter  reaches  him;  and  it  is 
immaterial  that  both  parties  tliink  that  the 
policy  is  in  force  until  the  discontinuance 
is  accepted.  Richmond  v.  Travelers'  Ins. 
Co.  30:  954,  130  S.  W.  790,  123  Tenn.  307. 
Acceptance  of  risk. 
Negligence  of  agent   in   failing  to   forward 

application,  see  supra,  34,  35. 
Review  on  appeal  of  finding   as  to  accept- 
ance  of   application,    see   Appeal   and 
Ereok,  991. 
Presumption  of  acceptance  of  risk,  see  Evi- 
dence, 551. 
Sufficiency  of  evidence  to  show  that  appli- 
cation for  insurance  if  passed  on  would 
have  been  accepted,  see  Evidence,  2327. 
Who   may   maintain    action    for   neglect   of 
company   to   act  upon   application,   see 
Parties,  74. 
Question   for   jury   as  to   reasonableness   of 
delay  in  passing  on  application  for  in- 
surance, see  Trial,  199. 
See  also  infra,  130,  132. 

121.  An  unaccepted  application  for  in- 
surance, accompanied  by  the  premium,  al- 
though retained  without  notice  of  objec- 
tion for  five  days  after  its  date  and  until 
the  applicant  has  suffered  the  loss  against 
which  he  desired  the  insurance,  is  not  a  con- 
tract of  insurance.  Dorman  v.  Connecticut 
F.  Ins.  Co.  51:  873,  139  Pac.  262,  41  Okla. 
509.  (Annotated) 

122.  A  notification  from  an  insurance 
company  that  it  would  protect  until  the 
application  is  acted  upon  does  not  place  the 
insurance  in  force  from  that  date,  for  the 
purpose  of  determining  the  truthfulness  of 
statements  in  the  application  at  the  in- 
ception of  the  contract.  Carleton  v.  Pat- 
rons' Androscoggin  Mut.  F.  Ins.  Co.  39: 
951,  82  Atl.  649,  109  Me.  70. 

123.  A  receipt  for  insurance  premium 
which  states  that  in  the  event  that  the  ap- 
plication is  approved  the  insurance  will  be 
in  force  from  the  date  of  the  medical  ex- 
amination does  not  put  the  insurance  in 
force  pending  a  decision  upon  the  applica- 
tion. Northwestern  Mut.  L.  Ins.  Co.  v. 
Neafus,  36:  1211,  140  S.  W.  1026,  145  Ky. 
563. 

124.  One  who  has  applied  for  insurance 
and  passed  a  satisfactory  examination,  upon 
the  assurance  that  the  insvirance  will  bo  in 
force  from  the  time  of  the  medical  exami- 
nation, is  not  per  se  in  fault  in  failing  to 
make  inquiry  in  case  the  policy  is  not 
promptly  issued,  Duffy  v.  Bankers'  L. 
Asso.  46:  25,  139  N.  W.  1087,  160  Iowa,  19. 

125.  An  insurance  company  which  is  act- 
ing under  a  state  franchise  is  liable  in 
damages  for  losses  caused  by  its  failure 
promptly  to  act  upon  an  application  for 
life  insurance  received  upon  its  own  solic- 
itation, and  accompanied  by  the  requisite 
premium.  Duffy  v.  Bankers'  L.  Asso.  46: 
25,  139  N.  W.  1087,  160  Iowa,  19. 


INSURANCE,  III.  a. 


1545 


126.  A  receipt  by  an  insurance  agent  to 
an  applicant  for  payment  of  premium, 
whicli  states  that,  if  the  application  is  ap- 
proved, tlie  insurance  will  be  in  force  from 
the  date  of  the  medical  examination,  refers 
to  the  examination  the  result  of  which  is 
forwarded  to  the  company,  and  not  to  one 
which  is  withheld  by  the  examiner  because 
not  satisfactory.  Northwestern  Mut.  L. 
Ins.  Co.  V.  Neafus,  36:  1211,  140  S.  W.  1026, 
145  Ky.  563. 

127.  No  contract  of  insurance  exists  ren- 
dering the  company  liable  for  a  loss  oc- 
curring pending  a  reasonable  investigation 
before  the  policy  is  issued,  but  after'  an 
agent  of  the  company  who  had  no  authority 
to  make  a  contract  insuring  property,  to 
the  knowledge  of  the  applicant,  had  taken 
a  written  application  for  insurance,  and 
accepted  a  part  of  the  premium  in  cash  and 
a  note  for  the  balance,  and  given  a  receipt 
for  the  same,  in  which  it  was  stated  that 
all  these  were  to  be  returned  if  the  policy 
was  not  issued.  Shawnee  Mut.  F.  liis.  Co. 
V.  McClure,  49:  1054,  135  Pac.  1150,  39  Okla. 
535. 

Delivery   and   acceptance   of   policy. 
Evidence  as  to,  see  Evidence,  2328. 
See  also  infra,  203. 

128.  No  proposal  for  absolute  indemnity 
is  contained  in  an  application  for  insurance 
which  does  not  allude  to  the  method  of  rais- 
ing the  fund,  so  as  to  render  necessary  an 
acceptance  of  the  policy,  where  it  provides 
for  the  levying  of  an  assessment  to  meet 
the  obligation.  Tuttle  v.  Iowa  State  Travel- 
ing Men's  Asso.  7:  223,  104  N.  W.  1131,  132 
Iowa,  652. 

129.  Where  an  applicant  for  life  insur- 
ance agreed  that  the  policy  should  not  take 
effect  until  issued  and  delivered,  the  ap- 
proval of  the  application  and  execution 
of  the  policy  by  the  insurer  creates  no  lia- 
bility, in  default  of  its  actual  delivery. 
Bowen  v.  Prudential  Ins.  Co.  51:587,  144 
N.  W.  543,  178  Mich.  63. 

130.  The  transmission  of  a  policy  of  life 
insurance  to  a  general  agent  of  the  insurer 
for  delivery  to  the  applicant,  with  instruc- 
tions not  to  deliver  it  to  the  applicant  un- 
less in  good  health,  is  not  such  constructive 
delivery  thereof  as  will  put  the  policy  in 
force,  where  the  applicant  has  agreed  that 
the  policy  shall  not  become  operative  until 
it  shall  be  issued  and  delivered,  and  the 
first  premium  paid  thereon  in  full,  while 
the  applicant's  health  is  in  the  same  con- 
dition as  described  in  the  application.  Bow- 
en  V.  Prudential  Ins.  Co.  51:  587,  144  N. 
W.  543,  178  Mich.  63. 

131.  The  receipt  of  a  life  insurance  policy 
by  a  special  agent,  through  whom  the  nego- 
tiations for  insurance  had  been  conducted, 
two  days  after  the  death  of  the  insured,  is 
not  a  constructive  delivery  to  the  insured 
which  will  satisfy  a  stipulation  in  the  ap- 
plication that  the  policy  shall  not  take 
effect  until  issued  and  delivered  while  the 
health  of  the  insured  is  in  the  same  condi- 
tion as  described  in  the  application.  Bowen 
Digest   1-52  I..R.A.(N.S.) 


V.   Prudential  Ins.   Co.   51:  587,   144   N.   W. 
543,  178  Mich.  63. 

132.  The  sending  of  a  policy  bearing  a 
current  date  upon  which  the  premium  is 
paid,  to  the  agent  for  delivery,  is  a  delivery 
to  the  applicant  and  will  therefore  bind  the 
insurer,  although  it  is  not  in  fact  placed  in 
his  hands  while  he  remains  in  good  health 
as  required  by  its  terms,  where  by  statute, 
the  insurer  is  estopped  to  question  the 
health  of  the  applicant  at  the  time  of  the 
issuance  of  the  delivery  of  the  policy. 
Unterharnscheidt  v.  Missouri  State  L.  Ins. 
Co.  45:  743,  138  N.  W.  459,  160  Iowa,  223. 

133.  Notification  to  the  applicant  of  the 
arrival  of  a  life-insurance  policy,  by  the 
local  agent  who  receives  the  application  and 
to  whom  the  policy  is  forwarded  for  deliv- 
ery, completes  the  contract,  which  the  in- 
surer cannot  deny  after  loss,  although  the 
insurer  in  fact  issues  a  different  form  of 
policy  from  that  applied  for,  and  notifies 
the  agent  to  secure  an  amendment  to  the 
application  requesting  the  policy  issued, 
which  he  fails  to  do.  Kimbro  v.  New  York 
L.  Ins.  Co.  12:  421,  108  N  W.  1025,  134 
Iowa,  84.  (Annotated) 

134.  A  present  contract  of  insurance  is 
not  effected  by  signing  an  application,  fol- 
lowed by  the  statement  of  the  agent  that 
he  would  "see  to  it,  take  care  of  it  so  it 
would  be  all  right,"  would  "get  a  policy." 
Whitman  v.  Milwaukee  F.  Ins.  Co.  5:  407, 
107  N.  W.  291,  128  Wis.  124.        (Annotated) 

135.  The  issuance  of  a  policy  of  life  in- 
surance for  $5,000  upon  an  application  for 
$10,000  is  a  rejection  of  the  proposition  of 
the  applicant,  and  not  binding  upon  the  in- 
surer until  assented  to  by  the  apj.'licant. 
New  York  L.  Ins.  Co.  v.  Levy,  5:  739,  92  S. 
W.  325,  122  Ky.  457.  (Annotated) 

136:  The  enumeration  in  the  application 
for  Insurance  in  a  mutual  benefit  associa- 
tion of  certain  exceptions  from  liability  does 
not,  by  exclusion,  prevent  the  operation  of 
an  exception  of  suicide  contained  in  the  in- 
surers  by-laws,  so  as  to  render  acceptance 
necessary  to  make  binding  a  policy  contain- 
ing such  exception,  where  the  application 
makes  the  by-laws  a  basis  of  membership  in 
the  association.  Tuttle  v.  Iowa  State 
Traveling  Men's  Asso,  7:  223,  104  N.  W. 
1131,   132   Iowa,   652. 

137.  One  who  signs  an  application  for 
life  insurance  without  reading  it,  upon  the 
assurance  of  the  soliciting  agent  that  it 
conforms  to  representations  orally  made, 
and  that  such  signing  is  customary  but  not 
necessary,  may  refuse  to  accept  a  policy 
tendered  him,  on  the  ground  that  it  does 
not  meet  such  repre.sentations,  notwith- 
standing the  application  contains  a  pro- 
vision that  nc  statement  made  by  the 
solicitor  would  affect  the  rights  of  the  com- 
pany unless  embodied  in  the  written  appli- 
cation. Evans  v.  Central  L.  Ins.  Co.  41: 
1 130,  125  Pac.  86,  87  Kan.  641. 

Breacli    of    contract    to    issue    policy. 

138.  To  recover  damages  for  breach  of  a 
contract  to  issue  an  insurance  policy,  com- 
pliance with  conditions  of  a  policy  of  the 


1546 


INSURANCE,  III.  b,  c. 


character  of  that  which  the  applicant  would 
Iiave  received  had  the  contract  been  com- 
plied with,  such  as  giving  proofs  of  loss  and 
time  of  bringing  suit,  is  not  necessary,  since 
the  breach  of  contract  is  a  waiver  of  such 
conditions.  Chenier  v.  Insurance  Co.  of  N. 
A.  48:  319,  129  Pac.  905,  72  Wash.  27. 

(Annotated) 

b.  Reformation;  rescission. 

(See  also   same  heading   in  Digest  L.R.A. 
lySO.) 

Reformation    of    contracts,    generally,    see 
Reformation  of  Instruments. 

139.  The  doctrine  of  reformation  for  mis- 
take, and  not  estoppel,  applies  in  case  an 
insurance  agenc,  in  preparing  the  policy,  lo- 
cates the  property  in  the  wrong  building 
with  knowledge  of  its  true  location.  Mina. 
Ins.  Co.  v.  Brannon,  2:  548,  89  S.  W.  1057, 
99  Tex.  391. 

140.  Where  an  agreement  is  made  for  the 
insurance  of  property  located  in  a  certain 
building,  and,  without  the  knowledge  of  the 
applicant,  a  policy  is  issued  locating  it  iri 
another  building,  a  recovery  may  be  had  in 
case  the  property  is  destroyed  in  the  build- 
ing to  which  the  contract  was  to  attach, 
without  the  necessity  of  applying  for  and 
securing  a  reformation  of  the  policy,  by 
proving  the  contract  and  mistake,  ^tna 
Ins.  Co.  V.  Brannon,  2:548,  89  S.  W. 
1057,  99  Tex.  391.  (Annotated) 

141.  An  insured  is  not  entitled  to  a  ref- 
ormation of  a  policy  delivered  to  aiiJ  ac- 
cepted by  him,  and  to  a  recovery  on  the 
policy  as  reformed,  on  the  theory  that  it 
did  not  contain  a  provision  for  which  he 
stipulated,  where  .there  is  nothing  to-  show 
that  the  insurer  did  not  deliver  the  policy 
which  it  intended  to  deliver,  although  the 
agent  who  secured  the  application  under- 
stood "that  the  policy  shoi^id  contain  such 
provision,  if  he  was  a  mere  soliciting  agent 
without  power  to  issue  policies.  Floars  v. 
^tna  L.  Ins.  Co.  11:  357,  56  S.  E.  915,  144 
N.  C.  232.  (Annotated) 

142.  The  holder  cannot  maintain  an  ac- 
tion against  a  reinsurer  for  reformation  of 
an  insurance  policy,  where  the  reinsurer 
merely  agrees  with  the  insurer  to  reinsure 
from  a  certain  time  all  its  risks  now  covered 
by  policies  and  contracts  according  to  their 
terms  and  conditions,  and  pay  losses,  ex- 
penses, and  return  premiums.  Vial  v,  Nor- 
wich Union  F.  Ins.  Co.  44:  317,  100  N.  E. 
929,   257   111.   355.  (Annotated) 

142a.  An  insured  need  not  procure  a  refor- 
mation of  his  policy  in  equity  so  as  to  show 
a  waiver  of  a  forfeiture  before  bringing  suit 
on  the  policy,  but  may  plead  waiver  or  es- 
toppel in  avoidance  of  the  defense  of  forfei- 
ture. German  American  Ins.  Co.  v.  Hy- 
man,  16:  77,  94  Pac.  27,  42  Colo.  156. 
Rescission. 

143.  Breach  by  an  insurance  company  of 
its  contract  to  lend  money  on  a  policy  does 
not  justify  the  insured  in  treating  the  con- 
tract as  rescinded,  and  suing  for  a  return 
Digest  1-52  I..It.A.(N.S.) 


of  the  premiums  paid.  Lewis  v.  New  York 
L.  Ins.  Co.  30:  1202,  181  Fed.  433.  104  C.  C. 
A.  181.  (Annotated) 

244.  The  holder  of  an  insurance  policy 
which  contains  a  provision  for  loans  upon 
the  policy  does  not  make  a  case  for  rescis- 
sion of  the  contract  for  failure  to  grant  a 
loan,  where  he  does  not  allow  time  between 
the  making  of  his  demand  and  the  bring- 
ing of  the  suit  for  the  application  to  reach 
the  home  office  and  the  reply  to  be  returned, 
and  he  does  not  execute  the  loan  agree- 
ment which  the  policy  makes  a  condition 
precedent  to  the  granting  of  a  loan.  Lewis 
V.  New  York  L.  Ins.  Co.  30:  1202,  181  Fed. 
433,  104  C.  C.  A.  181. 

c.     Cancelation;     surrender;     paid-up 
policy. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Recovery  of  premiums  or  assessments  in 
case  of  cancelation  or  surrender,  see 
infra,  434-444. 

Return  of  unearned  premium  in  case  of 
cancelation  or  surrender,  see  infra,  445, 
446. 

Cancelation  for  nonpayment  of  assessment 
as  defense,  see  infra,  861. 

Right  of  assignor  for  creditors  to  exercise 
option  of  surrendering  policy  for  cash 
value,  see  Assignment  fob  Creditors, 
13. 

Right  of  trustee  to  surrender  insurance  on 
life  of  bankrupt,  see  Bankruptcy,  38. 

Measure  of  damages  for  wrongful  cancel- 
ation, see  Damages,  114,  115. 

Negligence  in  transmitting  telegram  from 
insurer  canceling  policy,  see  Damages, 
242;  Proximate  Cause,  41;  Tele- 
graphs, 71. 

Agent's  liability  for  failure  to  comply  with 
instruction  to  reduce  policy  to  specified 
amount,  see  Damages,  305. 

Cancelation  in  equity,  see  Equity,  86. 

Power  of  guardian  to  permit  cancelation  of 
policy  for  benefit  of  ward,  see  Guard- 
ian AND  Ward,  9-11,  29. 

Right  of  mortgagee  to  cancel  policy  taken 
by  mortgagor  and  take  one  in  his  own 
name,  see  Mortgage,  23. 

See  also  infra,  423,  482. 

145.  One  who  voluntarily  ceases  to  pay 
his  insurance  premiums  and  abandons  his 
policy  cannot  maintain  an  action  for  dam- 
ages for  its  cancelation.  Green  v.  Hart- 
ford L.  Ins.  Co.  1 :  623,  51  S.  E.  887,  139  N. 
C.  309. 

146.  That  a  policy  of  life  insurance  is  re- 
turned by  applicant  because  it  does  not  cor- 
respond with  his  application,  and  is  in  pos- 
session of  the  company  at  the  time  of  his 
death,  does  not  show  a  cancelation  of  the 
contract,  where  the  company  has  insisted 
that  it  was  all  right,  but  offered  to  take  the 
matter  up  with  applicant  and  make  it  right, 
without  any  offer  to  return  the  premium 
notes.  Waters  v.  Security  Life  &  Annuity 
Co.  13:805,  57  S.  E.  437,  144  N.  C.  663. 

(Annotated) 


INSURANCE,  III.  c. 


1547 


147.  One  who  has  insured  his  life  for  the 
benefit  of  his  children  with  the  option  of 
surrendering  the  policy  for  its  cash  value 
within  thirty  days  of  the  termination  of  the 
term,  or  of  the  five-year  periods  thereafter, 
can  exercise  the  option  only  within  one  of 
the  several  periods  of  thirty  days  specified. 
McCutchen  v.  Townsend,  i6:  316,  105  S.  W. 
937,  127  Ky.  230. 

148.  An  attempted  cancelation  because  of 
false  answers  in  the  application  of  an  in- 
surance policy,  by  agreement  with  the  ap- 
plicant before  it  has  become  incontestable, 
without  the  knowledge  or  consent  of  the 
beneficiary  named  therein,  is  not  binding 
on  him,  although  the  policy  provides  that 
the  beneficiary  may  be  changed  by  written 
notice  to  the  company  and  indorsement  of 
the  change  upon  the  policy.  Indiana  Nat. 
L.  Ins.  Co.  V.  McGinnis,  45:  192,  101  N.  E. 
289,  180  Ind.  9. 

149.  A  statutory  provision  that  no  mis- 
representation made  in  securing  a  life  in- 
surance policy  shall  render  it  void,  unless 
the  matter  misrepresented  shall  have  ac- 
tually contributed  to  the  contingency  or 
event  on  which  the  policy  is  to  become  pay- 
able, has  no  application  to  a  suit  to  cancel 
a  policy  for  misrepresentation  prior  to  the 
loss.  Pacific  Mut.  L.  Ins.  Co.  v.  Glaser, 
45:  222,  150  S.  W.  549,  245  Mo.  377. 

150.  Equity  may  cancel  a  life  insurance 
policy  before  loss,  for  mistake  of  fact,  in 
case  the  policy  is  based  on  the  application, 
the  statements  in  which  are  made  war- 
ranties, and  the  applicant  erroneously 
states  that  he  had  never  been  rejected  by 
any  other  company.  Pacific  Mut.  L.  Ins. 
Co.  V,  Glaser,  45:  222,  150  S.  W.  549,  245 
Mo.   377.  (Annotated) 

151.  A  beneficiary  in  a  life  insurance 
policy  who  secures  its  issuance  by  means 
of  false  representations  as  to  the  age  of 
insured  and  as  to  his  rejection  by  other 
companies  cannot  avoid  a  cancelation  of  the 
policy  on  the  ground  that  the  company  took 
premiums  after  having  the  means  of  know- 
ing the  falsity  of  the  statements,  if  the 
means  of  knowledge  came  from  informa- 
tion furnished  by  one  not  the  agent  of  the 
company,  but  who  was  aiding  the  benefi- 
ciary in  securing  the  insurance.  Metropoli- 
tan L.  Ins.  Co.  V.  Freedman,  32:  298,  123 
N.  W.  547,  159  Mich.  114. 

•152.  Tliat  an  ignorant  applicant  for  life 
insurance  did  not  actually  know  of  false 
statements  in  the  application  as  to  his  age 
and  rejected  by  other  companies  will  not 
prevent  a  cancelation  of  the  policy  for 
fraud,  if  the  application  is  made  a  part  of 
the  contract  and  the  statements  therein  are 
warranted,  while  the  policy  goes  into  his 
possession  and  is  retained  by  him,  since 
it  is  his  duty  to  know  that  the  representa- 
tions in  the  application  are  true.  Metro- 
politan L.  Ins.  Co.  V.  Freedman,  32:  298,  123 
N.  W.  547,  159  Mich.   114. 

153.  A  known  false  denial  of  rejection  by 
other  companies  in  an  application  for  life 
insurance  is  ground  for  cancelation  of  the 
policy  before  loss,  if  the  contract  provides 
that  it  is  based  on  the  application,  the  an- 
Dieest  1-52  I..R.A.(N.S.) 


swers  in  which  are  warranted  to  be  true. 
Pacific  Mut.  L.  Ins.  Co.  v.  Glaser,  45:222, 
150  S.  W.  549,  245  Mo.  377. 

154.  Under  the  cancelation  clause  in  & 
standard  policy  of  fire  insurance  providing 
for  the  cancelation  of  the  policy  by  the  com- 
pany upon  giving  five  days'  notice,  and  stip- 
ulating that  the  unearned  portion  of  the 
premium  shall  be  returned  on  the  surrender 
of  the  policy,  the  company  is  not  required  to 
pay  or  tender  the  unearned  premium  in  or- 
der to  bring  about  a  cancelation  of  the  pol- 
icy. Davidson  v.  German  Ins.  Co.  (N.  J. 
Err.  &  App.)  13:  884,  65  Atl.  996,  74  N.  J. 
L.  487.  (Annotated) 

155.  The  exchanging  by  one  who  has  suf- 
fered a  fire  loss,  of  a  policy  which  had  been 
duly  issued  and  paid  for,  for  one  in  another 
company,  upon  receiving  notice  that  the 
former  was  to  be  canceled,  is  not  a  ratifi- 
cation of  the  attempted  change  of  insurers, 
so  as  to  release  the  one  which  issued  the 
surrendered  policy,  since  after  the  loss  the 
agent  could  not  bind  the  substituted  com- 
pany. Waterloo  Lumber  Co.  v.  Des  Moines 
Ins.  Co.  51:  539,  138  N.  W.  504,  158  Iowa, 
563. 

156.  One  taking  a  paid-up  policy  upon  his 
life  for  the  benefit  of  a  named  beneficiary 
cannot,  in  the  absence  of  reservation  ol 
power  to  revoke,  modify,  or  surrender  the 
contract,  effect  a  surrender  which  will  de- 
feat the 'rights  of  the  beneficiary.  Ferguson 
v.  Phoenix  Mut.  L.  Ins.  Co.  35:  844,  79  AtL' 
997,  84  Vt.  350.  (Annotated) 

157.  That  a  life  insurance  policy  is  made 
payable  to  the  children  of  the  insured 
equally,  without  naming  them,  or  their 
executors,  administrators,  or  assigns,  does 
not  render  their  interest  so  contingent  and 
uncertain  that  he  has  power  to  surrender 
the  policy  so  as  to  cut  off  their  interest. 
Ferguson  v.  Phoenix  Mut.  L.  Ins.  Co.  35: 
844,  79  Atl.  997,  84  Vt.  350. 

Notice. 

Waiver  by  guardian  of  notice  before  cancel- 
ation  of   policy   payable   to   ward,,  see 

GUAKDIAN  AND  WARD,  9. 

See  also  supra,  37,  120. 

158.  In  order  to  bring  about  the  cancela- 
tion of  a  fire  insurance  policy,  the  notice  to 
be  given  by  the  company  need  not  be  in  any 
particular  form,  and  may  be  oral,  so  long  as 
it  positively  and  unequivocally  indicates-  to 
the  insured  that  it  is  the  intention  of  the 
company  that  the  policy  shall  cease  to  be 
binding  as  such  upon  the  expiration  of  five 
days  from  the  time  when  its  intention  is 
made  known  to  the  insured.  Davidson  v. 
German  Ins.  Co.  (N.  J.  Err.  &  App.)  13:  884, 
65  Atl.  996,  74  N.  J.  L.  487. 

159.  A  notice  of  cancelation  given  by  an 
insurance  company  to  the  insured,  which 
states  that  the  company,  through  its  agent, 
"herewith  gives  five  days'  formal  notice  of 
its  intention  to  cancel"  the  policy,  which  it 
describes,  and  follows  this  with  an  asser. 
tJon  that  liability  will  cease  at  noon  of  a 
certain  date,  is  sufficient  in  form  to  comply 
with  a  provision  in  the  policy  that  the 
policy  "shall  be  canceled  at  any  time  at  the 
request  of  the  insured  or  by  the  company 


1548 


INSURANCE,  III.  c. 


by  giving  five  days'  notice  of  such  cancela- 
tion." Fritz  V.  Pennsylvania  F.  Ins.  Co. 
(N.  J.  Err.  &  App.)  50:  35,  88  Atl.  1065, 
85  N.  J.  L.  171.  (Annotated) 

160.  Notice  of  the  cancelation  of  an  in- 
surance policy  inclosed  in  a  postpaid  reg- 
istered envelop,  addressed  to  the  insured, 
and  received  but  unopened  by  him,  bearing 
upon  its  face  the  card  of  an  insurance  com- 
pany other  than  the  one  in  w^hich  the 
insured  held  a  policy,  although  having  upon 
it  the  name  of  the  same  agents  as  those 
of  the  company  in  which  he  was  insured, 
is  not,  in  and  of  itself,  notice  of  cancela- 
tion. Fritz  V.  Pennsylvania  F.  Ins.  Co.  (N. 
J.  Err.  &  App.)  50:  35,  88  Atl.  1065,  85  N. 
J.  L.  171. 

361.  The  mailing  of  a  notice  of  an  inten- 
tion to  cancel  an  insurance  policy  five  days 
later,  which  is  not  received  until  two  days 
after  the  mailing,  is  not,  in  case  no  notice 
of  cancelation  is  given,  sufficient  to  render 
valid  the  cancelation  on  the  day  named,  un- 
der a  provision  in  the  policy  permitting 
cancelation  upon  giving  five  days'  notice 
thereof.  German  Union  F.  Ins.  Co.  v.  Fred 
G.  Clarke  Co.  39:  829,  82  Atl,  974,  116  Md. 
622.  (Annotated) 

162.  To  cancel  an  insurance  policy  pay- 
able to  a  mortgagee  as  his  interest  may  ap- 
pear, notice  must  be  given  to  the  mortgagee, 
where  the  policy  provides  that  it  .may  be 
canceled  by  giving  five  days'  notice  of  can- 
celation. Rawl  V.  American  C.  Ins.  Co. 
45;  463,  77  S.  E.  1013,  94  S.  C.  299. 

( Annotated  I 

163.  A  misstatement  by  an  applicant  of 
fire  insurance  as  to  the  nature  of  his  title  is 
a  delinquency  within  the  meaning  of  a  mort- 
gagee clause  attached  to  the  policy,  which 
provides  that  notice  of  delinquency  on  the 
part  of  insured  will  be  given  the  mortgagee 
before  any  suspension  or  cancelation  is 
made  affecting  his  interest.  People's  Sav. 
Bank  v.  Retail  Merchants'  Mut.  F.  Ins. 
Asso,  31:  455,  123  N.  W.  198,  146  Iowa,  536. 
Paid-up  policy. 

Right  of  divorced  wife  as  to,  see  infra,  831. 

Public  policy  as  to  conditions  imposed  on 
right  to,  see  Contracts,  443. 

Limitation  of  right  of  action  to  compel  is- 
suance of  paid-up  policy,  see  Limita- 
tion OF  Actions,  133. 

See  also  infra,  170,  171. 

164.  Under  a  provision  in  an  insurance 
policy  that  in  case  of  lapse  for  nonpayment 
of  premium,  the  insured  may  within  six 
months  surrender  the  policy  and  take  paid- 
up  insurance  for  the  cash  surrender  value, 
surrender  of  the  policy  within  the  specified 
time  is  necessary  to  preserve  the  right  to 
the  option,  and  in  the  absence  of  such  sur- 
render all  rights  under  the  policy  will  cease. 
Blume  v.  Pittsburg  Life  &  T.  Co.  51:  1044, 
104  N.  E.  1031,  263  111.  160.       (Annotated; 

165.  The  surrender  of  the  policy  within  the 
six  months  is  not  of  the  essence  of  a  con- 
tract of  insurance  providing  that  if,  after 
a  specified  number  of  payments,  the  policy 
is  forfeited  for  nonpayment  of  premiums, 
upon   the   surrender   of   the   policy   "within 

Digest  1-52  Ii.R.A.(N.S.) 


six  months,"  a  paid-up  policy  will  be  issued 
for  such  an  amount  as  the  reserve  on  the 
policy  will  purcha^,  so  that  the  paid  up 
policy  may  be  demanded  upon  surrender  of 
the  old  one  within  a  reasonable  time  after 
the  expiration  of  the  six  montlis.  Lenou 
v.  Mutual  L.  Ins.  Co.  8:  193,  98  S.  W.  117, 
80  Ark.  563. 

166.  Lapse  of  the  limitation  period  after 
demanding  the  issuance  of  a  paid-up  policy 
in  accordance  with  the  contract  after  for- 
feiting a  life-insurance  policy  for  nonpay- 
ment of  premiums,  without  taking  steps  to 
compel  an  issuance  of  the  policy,  will  not 
bar  an  action  to  enforce  the  amount  due 
under  it  upon  the  death  of  the  insured. 
Lenon  v.  Mutual  L.  Ins.  Co.  8:  193,  98  S. 
W.  117,  80  Ark.  563.  (Annotated) 
Extended   insurance. 

Impairment  of  contract  right  to,  see  Con- 
stitutional Law,  799. 
See  also  supra,  11. 

167.  A  statutory  provision  that  every  con- 
tract of  life  insurance  shall  contain  a  provi- 
sion for  the  application  of  the  reserve  to  the 
purchase  of  extended  insurance  in  case  of 
forfeiture  for  nonpayment  of  premiums,  un- 
der penalty  of  having  the  license  of  in- 
surer withdrawn,  does  not  become  part  of  art 
insurance  policy  which  does  not  contain  the 
provision.  Equitable  Life  Assur  Soc.  v. 
Babbitt,  13:  1046,  89  Pac.  531,  11  Ariz.  116. 

(Annotated) 

168.  Under  a  statute  giving  an  insured 
person  whose  policy  has  lapsed  for  non- 
payment of  a  premium  the  option  to  sur- 
render the  policy  within  six  months  and 
have  the  net  accumulated  reserve  on  the 
policy  applied  as  a  single  premium  in  ex- 
tending the  policy  for  such  term  as  the  re- 
serve will  purchase,  the  beneficiary  of  the 
policy  may  make  such  surrender  and  de- 
mand, after  the  death  of  the  insured,  with- 
in the  period  named.  New  York  L.  Ins. 
Co.  v.  Noble,  45:  391,  124  Pac.  612,  34  Okla. 
103,  (Annotated) 

169.  Where  the  statute  controlling  a  life 
insurance  policy  which  has  lapsed  for  non- 
payment of  a  premium  when  due,  gives  the 
insured  the  option  to  surrender  tlie  policy 
within  six  months,  and  have  the  net  ac- 
cumulated reserve  applied  as  a  single 
premium  in  extending  the  policy  for  such 
term  as  the  reserve  will  purchase,  but  pro- 
vides that  such  extended  insurance  shall  not 
participate  in  the  profits  of  the  company, 
and  the  holder  of  a  tontine  policy  contract 
which  on  its  face  covenanted  that,  in  the 
event  that  it  became  a  death  claim  within 
the  tontine  period,  all  payments  of 
premiums  should  be  paid  to  the  beneficiary, 
together  with  the  amount  named  in  the 
policy,  exercised  such  option  within  the 
time  allowed,  and  the  insurance  was  extend- 
ed, and  the  insured  died  within  tlie  tontine 
period  and  before  such  extension  expired, 
the  beneficiary  had  the  right  to  recover,  in 
addition  to  the  amount  named  in  the  policy, 
the  premiums  that  had  been  paid,  as  the 
agreement  to  pay  such  in  the  face  of  the 
policy    did    not    involve    any    question    of 


INSUKAi^CE,  III.  d,  1. 


1549 


profits  of  the  company  or  a  participation 
therein.  New  York  L.  Ins.  Co.  v.  Noble, 
45:  391,  124  Pac.  612,  34  Okla.  103. 

170.  A  statute  providing  for  extended  in- 
Burance,  to  be  secured  by  application  of  the 
net  val--"  of  the  policy,  or  for  a  paid-up  pol- 
icy, upon  forfeiture  of  policies  of  insurance 
by  nonpayment  of  premiums,  has  no  appli- 
cation to  certificates  issued  by  mutual  bene- 
fit societies  whicli  operate  on  he  montlily 
assessment  plan,  and  the  amount  of  whose 
assessments  are  not  unalterably  fixed  by  the 
cont/act,  or  the  liability  incurred  definitely 
fixed  and  unchangeable.  Westerman  v.  Su- 
preme Lodge,  K.  of  P.  5:  1 1 14,  94  S.  W. 
470,    196   Mo.    670. 

171.  The  share  of  a  life  insurance  policy 
lapsed  for  nonpayment  of  premium  after 
having  been  in  force  three  years  must  be 
applied,  under  N.  Y.  Laws  1892,  p.  1969, 
chap.  690,  §  88,  to  the  purchase  of  extended 
insurance,  unless  the  policy  holder  has  elect- 
ed to  take  paid-up  insurance  therefor. 
United  States  L.  Ins.  Co.  v.  Spinks,  13:  1053, 
96  S.  W.  889,  126  Ky.  405. 

172.  The  words  "dividend  additions,"  as 
used  in  N.  Y.  Laws  1892,  p.  1969,  chap.  690, 
§  88,  providing  for  the  application  thereof  to 
lapsed  policies,  refer  to  that  part  of  the 
premiums  charged  which  was  "loaded"  onto 
the  premium  in  excess  of  its  share  of  ex- 
penses and  losses  sustained;  and  such  ad- 
ditions and  the  earnings  thereon,  which  con- 
stitute the  "surplus,"  must  be  valued  and 
applied  in  buying  extended  insurance  for 
lapsed  policies  in  force  three  years  or  longer, 
in  the  same  way  that  the  "reserve"  of  the 
policy  is  required  to  be  valued  and  applied 
in  purchasing  such  extended  insurance. 
United  States  L.  Ins.  Co.  v.  Spinks.  13: 
1053,  96  S.  W.  889,  126  Ky.  405. 

173.  Insurance  companies  must  keep  ac- 
curate accounts  witli  their  policy  holders 
as  classes,  failing  which,  no  presumption 
will  be  indulged  in  the  company's  favor 
when  it  comes  to  valuing  and  applying 
"surplus"  or  "dividend  additions"  to  lapsing 
policies.  United  States  L.  Ins.  Co.  v.  Spinks, 
13:  1053,  96  S.  W.  889,  126  Ky.  405. 

174.  An  insurance  company  will  not,  in 
computing  the  amount  of  cash  surrender 
value  or  the  sum  applicable  to  the  purchase 
of  extended  insurance  after  default  in  pay- 
ment of  premiums,  be  permitted  to  discrimi- 
nate against  policy  holders  who  have  bor- 
rowed on  their  policies,  by  exacting  more 
than  the  loan  with  legal  interest,  and  there- 
fore a  method  of  settlement  by  which  the 
amount  to  be  deducted  from  the  i-eserve 
applicable  to  the  purchase  of  extended  in- 
surance is  ascertained  by  finding  the  sum 
which  bears  the  same  relation  to  such  re- 
serve as  the  amount  borrowed  bears  to  the 
cash  surrender  value,  and  thereby  arbitrari- 
ly shortening  the  time  of  extended  insur- 
ance, is  invalid.  Emig  v.  Mutual  Ben.  L. 
Ins.  Co.  23:  828,  106  S.  W.  230,  127  Ky.  588. 

(Annotated) 

Digest  1-.-52  L.R.A.(N.S.) 


d.  Construction. 
1.  In  general;  policies  on  property. 

(See   also   same   heading   in  Digest   L.R.A 
1-70.) 

Construction    of    receipt    for    premium,    see 

supra,  123,  126. 
Construction  of  warranties,  representations 

and  conditions,  see  infra.  III.  e. 
As  to  risks  and  causes  of  loss,  see  infra,  VI. 

b,  1. 
As   to   extent   of   injury,   see   infra,   VI.   c, 

1. 
See  also  infra,  254. 

175.  Where  a  policy  of  insurance  is  sus- 
ceptible of  two  meanings,  that  construction 
is  to  be  adopted  which  is  most  favorable 
to  the  insured.  Harris  v.  American  Casual- 
ty Co.  (N.  J.  Err.  &  App.)  44:  70,  85  Atl. 
194,  83  N.  J.  L.  641. 

176.  If  a  policy  of  insurance  is  suscep- 
tible of  two  constructions,  that  one  is  to 
be  adopted  which  is  more  favorable  to  the 
assured.  Standard  Acci,  Ins.  Co.  v.  Hite, 
46:  986,  132  Pac.  333  37  Okla.  305. 

177.  Language  in  the  second  clause  of  an 
insurance  policy,  the  first  clause  of  which 
insures  a  building,  which  covers  machinery 
and  all  appurtenances  and  appliances  nec- 
essary and  used  in  the  owner's  business, 
does  not  imply  that  the  building  is  a  manu- 
facturing establishment.  Home  Ins.  Co.  v. 
North  Little  Rock  Ice  &  E.  Co.  23:  1201^ 
111   S.  W.  994,  86  Ark.  538. 

178.  That  construction  of  an  insurance 
contract  should  be  adopted  which  will  pre- 
vent a  forfeiture,  where  it  is  susceptible  of 
two  constructions,  one  of  which  will  work  a 
forfeiture  and  the  other  will  not.  Hilmer 
V.  Western  Travelers  Acci.  Asso.  27:  319,. 
125  N.  W.  535,  86  Neb.  285. 

179.  An  indorsement  on  an  insurance 
policy,  designating  its  kind,  is  no  part  of  it, 
and  insured  cannot  be  held  to  have  relied 
on  it  rather  than  on  the  terms  of  the  instru- 
ment. Hill  V.  Travelers'  Ins.  Co.  28:  742, 
124  N.  W.  898,  146  Iowa,  133. 

180.  Where  all  property  covered  by  an  in- 
surance policy  was  injured  by  either  fire, 
water,  or  smoke,  insured  need  take  no  steps 
to  segregate  his  property,  under  a  policy 
which  provides  that  daniaged  and  undam- 
aged property  shall  be  separated  and  cared 
for  in  such  manner  as  to  protect  the  un- 
damaged portion  from  further  deteriora- 
tion. Winchester  v.  North  British  &  Mer- 
cantile Ins.  Co.  35:  404,  116  Pac.  63,  160 
Cal.  1. 

Property  covered. 

181.  A  fire  insurance  policy  covering  a 
farm  barn  and  the  live  stock  therein,  "on 
the  farm  and  from  lightning  at  large,"  cov- 
ers a  horse  while,  according  to  custom,  it  is 
temporarily  off  the  farm,  as  while  it  is  on 
another  farm,  for  the  purpose  of  being 
broken.  Lathers  v.  Mutual  Fire  Ins.  Co.  22: 
848,  116  N.  W.  1,  135  Wis.  431.   (Annotated) 

182.  A  policy  written  by  a  state  agent 
upon  a  brick  building  "and  its  additions 
adjoining  and  communicating,"  after  notice 


1550 


INSURANCE,  III,  d,  2,  e,  1. 


from  the  owner  that  he  wanted  the  policy 
to  cover  not  only  the  brick  building,  but 
a  wooden  one  which  had  been  moved  back 
to  make  way  for  it,  and,  altliough  separated 
from  it  by  a  few  feet,  was  connected  by 
passageway  and  used  with  it,  will  cover 
the  wooden  structure.  Sliepard  v.  Ger- 
mania  F.  Ins.  Co.  33:  156,  130  N.  W.  626, 
165  Mich.  172.  (Annotated) 

Duration  of  risk. 

183.  The  word  "noon"  used  to  denote  the 
beginning  and  termination  of  the  risk  under 
an  insurance  policy  will  be  interpreted  Ly 
standard,  and  not  by  sun,  time,  where  the 
use  of  the  former  system  of  reckoning  time 
has  been  the  prevailing  custom  in  the  com- 
munity for  a  long  period.  Rochester  Ger- 
man Ins.  Co.  V.  Peaslee-Gaulbert  Co.  i:  364, 
87  S.  W.  1115,  120  Ky.  752.       (Annotated) 

184.  The  beginning  of  a  fire  in  a  buildiii;; 
which  contains  insured  property,  before  tlie 
policy  expires,  will  if  it  continues  to  burn 
until  it  destroys  the  property,  render  the 
insurer  liable  for  the  loss,  although  the 
property  is  not  actually  destroyed  before 
such  expiration;  but  the  same  rule  does 
not  apply  in  case  the  property  is  merely  im- 
periled at  the  time  of  the  expiration  of  the 
policy,  by  a  fire  in  an  adjoining  building, 
although  it  eventually  reaches  and  destroys 
the  property.  Rochester  German  Ins.  Co.  v. 
Peaslee-Gaulbert  Co.  i:  364,  87  S.  W.  1115, 
120  Ky.  752. 

2.  Of  policies  on  persons. 

{See  also   same  heading  in  Digest  L.R.A. 
1-70.) 

Constitution,  rules  and  by-laws  as  part  of 

contract,  see  supra,  93-114. 
As  to  risks  and  causes  of  loss  or  injury,  see 

infra,  VI.  b,  2,  VI.  b,  3. 
As  to  extent  of  injury,  see  infra,  VI.  c,  2. 
•Construction  of  application  as  question  for 

court,  see  Tbial,  328. 

185.  A  contract  of  life  insurance  is  not  a 
contract  of  assurance  for  a  single  year  with 
a  privilege  of  renewal  from  year  to  year  by 
paying  the  annual  premiums,  but  is  an  en- 
tire contract  of  insurance  for  life,  subject 
only,  when  so  stipulated,  to  forfeiture  for 
nonpayment  of  any  instalments  of  premium, 
which  instalments  are  not  consideration  for 
the  respective  years  in  which  they  are  to  be 
paid,  but  are  part  consideration  of  the  en- 
tire insurance  for  life.  Haas  v.  Mutual  L. 
Ins.  Co.  26:  747,  121  N.  W.  996,  84  Neb.  682. 

186.  A  recovery  will  not  be  denied  upon  a 
mutual  benefit  certificate  unless  required 
by  the  language  of  the  contract  naturally 
construed.  Brackett  v.  Modern  Brother- 
hood of  America,  45:  1144.  157  S.  W.  690, 
154  Ky.  340. 

187.  The  interpretation  which  the  officers 
■of  a  mutual  benefit  association  have  been 
accustomed  to  give  to  words  in  the  cer- 
tificates entitling  members  to  advance  pay- 
ouent  under  certain  conditions,  which  has 
■never  been  promulgated  as  a  rule  of  the  as- 
sociation, is  immaterial  in  an  action  by 
A  member  to  secure  such  payment,  as  well 

Sieest  1-52  L.R.A.(N.S.) 


f  a8  the  fact  that  rates  had,  without  notice 
to  the  members,  been  based  upon  this  cus- 
tom. Supreme  Council  C.  B.  L.  v.  Grove, 
36:  913,  96  N.  E.  159,  176  Ind.  356. 

188.  The  word  "may"  in  a  mutual  benefit 
certificate  providing  a  certain  sum  to  be 
paid  upon  the  death  of  a  member,  and  de- 
claring that  one  half  the  sura  may  be  paid 
the  member  in  case  he  reaches  a  specified 
age  and  becomes  permanently  disabled,  .is 
compulsory,  so  that  the  association  has  no 
option  to  refuse  payment  in  case  the  con- 
ditions are  complied  with.  Supreme  Coun- 
cil C.  B.  L.  v.  Grove,  36:  913,  96  N.  E.  159. 
176  Ind.  356, 

189.  A  man  who,  because  of  old  age  and 
weakness,  is  unable  to  perform  labor,  and 
who  is  without  property  of  any  kind  or 
children,  is  destitute  of  means  of  suppo-rt, 
within  the  meaning  of  a  mutual  benefit 
certificate  entitling  him  to  a  portion  of  its 
face  value  in  case  he  is  destitute  of  the 
means  of  support,  although  his  wife  has 
some  property  which  produces  a  small  in- 
come, and  he  receives  a  gratuitous  pension 
from  a  former  employer,  a  large  part  of 
which  he  uses  to  pay  the  dues  in  the  bene- 
fit a&.jociation,  where  by  statute  the  wife's 
property  is  not  subject  to  payment  of  his 
debts.  Supreme  Council  C.  B.  L.  v.  Grove, 
36:  913,  96  X.  E.  159,  176  Ind.  356. 

190.  Paralysis  of  a  hand  is  within  a 
policy  insuring  against  paralysis  of  either 
extremities.  Brotherhood  of  Locomotive 
Firemen  &  Engirremen  v,  Aday,  34:  126, 
134  S.  W.  928,  97  Ark,  425. 

191.  A  life  insurance  policy  renewable 
quarterly  at  a  stated  rising  premium  at  the 
actual  cost  of  the  hazard  between  each  re- 
newal, the  excess  over  cost  of  premium  paid 
being  returned  in  dividends,  which  provides 
for  an  exchange  for  a  policy  at  a  level  rate 
after  insured  reaches  sixty  years  of  age, 
and  states  the  rate  to  be  paid  if  tlie  ex- 
change is  eflected  any  year  when  the  age  is 
from  sixty  to  sixty-five,  does  not,  by  fol- 
lowing the  figures  so  given  by  the  words 
"etc.,"  without  stating  the  rates  above  that 
age,  effect  the  exchange  to  the  level  rate 
automatically  when  the  age  of  sixty-five  is 
reached.  Jones  v.  Provident  Sav,  iL  Assur. 
Soc,  25:  803,  61  S.  E.  388,  147  N.  C.  540. 

(Annotated) 

e.    Warranties;    representations;    con- 
ditions; description. 

1.  In  policies  on  property. 

a.  Generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Waiver  respecting,  see  infra,  V,  b. 

As  to  risks  and  causes  of  loss,  see  infra,  VI, 
b,  1. 

Necessity  of  alleging  and  proving  compli- 
ance with  conditions,  see  Pleading, 
250. 

Sufficiency  of  pleading  to  raise  question  of 
breach  of  warranty  as  to  value,  see 
Pleading,  521, 


INSURANCE,  III.  e,  I. 


1551 


Truth  or  falsity  of  warranties  as  question 

for  jury,  see  Trial,  646,  647. 
See  also  supra,  122. 

192.  The  insured,  by  accepting  a  fire  in- 
surance policy,  is  charged  with  notice  of  its 
contents,  and  is  bound  by  its  conditions. 
Re  Millers'  &  M.  Ins.  Co.  4:  231,  106  N.  W. 
485,  97  Minn.  98. 

193.  The  materiality  of  representations 
made  in  an  application  for  fire  insurance  be- 
comes unimportant  where,  by  the  express 
terms  of  the  application,  it  is  made  a  part 
of  the  contract  of  insurance,  and  the  repre- 
sentations contained  therein  are  warranted 
by  the  applicant,  and  it  is  provided  that  tne 
policy  shall  be  void  if  any  of  the  represen- 
tations are  not  true,  for,  under  such  stipu- 
lations, in  a  suit  to  recover  loss  occasioned 
by  the  destruction  by  fire  of  the  property 
insured,  the  insurance  company  is  relieved 
from  showing,  and  the  insured  is  estopped 
from  denying,  that  they  were  material  to 
the  contract.  Deming  Invest.  Co.  v.  Shaw- 
nee F.  Ins.  Co.  4:  607,  83  Pac.  918,  16 
Okia.  1. 

194.  In  an  application  for  fire  insurance, 
made  for  the  purpose  of  informing  the  in- 
surance company  of  the  It.cts  with  reference 
to  the  property  sought  to  be  insured,  and 
to  furnish  it  inrormation  upon  wh:ch  it  is 
to  act  in  accepting  or  refusing  the  risk,  and 
wherein  the  applicant  warrants  his  answers 
to  be  true,  a  stipulation  in  an  application 
and  policy  that,  if  any  of  the  statements 
made  in  the  application  by  the  applicant  are 
untrue,  the  policy  shall  be  void,  is  a  reason- 
able stipulation.  Deming  Invest.  Co.  v. 
Shawnee  F.  Ins.  Co.  4:  607,  83  Pac.  918,  16 
Okla.  1. 

195.  A  statement  regarding  the  dimen- 
sions of  a  building,  in  an  application  for  in- 
surance, is  not  warranted  correct  by  a 
warranty  that  the  description  and  state- 
ment of  the  condition,  situation,  value,  oc- 
cupancy, and  title  of  the  property  are  true. 
Duncan  v.  National  Mut.  F.  Ins.  Co.  20:  340, 
98  Pac.  634,  44  Colo.  472. 

196.  A  statement  of  the  dimensions  of  the 
building  in  an  application  for  insurance  is 
not  within  a  provision  of  the  policy  that  it 
shall  be  void  for  misrepresentation  of  any 
material  fact,  if  it  does  not  appear  that  the 
insured  was  influenced  in  issuing  the  policy 
because  of  the  statement  regarding  the  di- 
mensions of  the  building.  Duncan  v.  Na- 
tional Mut.  F.  Ins.  Co.  .20:  340,  98  Pac.  634, 
44  Colo.  472.  (Annotated) 
Statements   as  to  value. 

197.  A  substantially  true  statement  of  the 
value  of  a  building,  in  an  application  of  in- 
surance, is  a  compliance  with  the  warranty 
of  the  statement  of  value.  Duncan  v.  Na- 
tional Mut.  F.  Ins.  Co.  20:  340,  98  Pac.  634, 
44  Colo.  472. 

198.  Statements  in  an  application  for  in- 
surance that  the  value  of  the  property  is 
estimated  by  applicant  does  not  prevent  a 
gross  overvaluation  from  avoiding  the  pol- 
icy, where  the  statement  of  value  is  war- 
ranted. Duncan  v.  National  Mut.  F.  Ins. 
Co.  20:  340,  98  Pac.  634,  44  Colo.  472. 
Digest   1-52  L.B.A.(N.S.) 


199.  The  valuation  at  $1,500,  in  an  ap- 
plication for  insurance  of  a  building  which 
is  worth  only  $200,  cannot  be  regarded  as  so 
approximately  correct  as  to  comply  with  a 
warranty  of  the  statement  of  value.  Dun- 
can V.  National  Mut.  F.  Ins.  Co.  20:  340,  98 
Pac.  634,  44  Colo.  472. 
Coucealxuent. 

200.  Concealment  by  the  applicant  for 
insurance  on  a  stock  of  goods  of  the  exis- 
tence of  an  outstanding  unfiled  chattel  mort- 
gage thereon  by  answering  in  the  negative 
the  question  whether  the  property  was 
mortgaged  or  encumbered,  constitutes  con- 
cealment of  a  fact  material  to  the  risk, 
within  the  meaning  of  a  policy  providing 
that  it  shall  be  void  if  the  insured  has  con- 
cealed or  misrepresented  any  material  fact 
or  circumstance  concerning  the  insurance 
or  the  subject  thereof,  and  avoids  the  policy. 
Madsen  v.  Farmers'  &  M.  Ins.  Co.  29:  97, 
126  N.  W.   1086,  87  Neb.  107. 

b.  Title  and  encumbrances. 

(See   also   same  heading   in  Digest   L.R.A. 
1-10.) 

Waiver  or  estoppel  as  to,  see  infra,  529,  544. 
See  also  supra,  99,  200;  infra,  277,  296. 

201.  It  is  incumbent  upon  an  applicant 
for  fire  insurance  to  disclose  the  nature  of 
his  title.  Re  Millers'  &  M.  ins.  Co.  4:  231, 
106  N.  W.  485,  97  Minn.  98. 

202.  If  the  insured  truthfully  and  cor- 
rectly states  the  nature  and  condition  of 
his  title  in  making  his  application  for  in- 
surance, he  will  not  be  precluded  from  re- 
covering, in  case  of  loss,  on  account  of  a 
contrary  statement  as  to  title,  inserted  in 
the  policy  by  the  underwriter.  Allen  v. 
Phoenix  Assur.  Co.  8:  903,  88  Pac.  245,  12 
Idaho,  653. 

203.  Acceptance,  without  reading  it,  of  a 
fire  insurance  policy  issued  upon  parol  ap- 
plication, without  any  representation  as  to 
title,  which  contains  a  provision  that,  ex- 
cept in  case  of  an  agreement  indorsed  on 
or  added  to  the  policy  it  shall  be  void  if 
the  subject  of  insurance  be  a  building  on 
ground  not  owned  by  the  insured,  is  bind- 
ing upon  the  applicant;  and  he  cannot  re- 
cover for  a  loss  if  the  building  is  on 
leased  property,  which  fact  was  not  known 
to  the  insurer  or  its  agent.  Wyandotte 
Brewine  Co.  v.  Hartford  F.  Ins.  Co.  6:  852, 
108  N.  W.  393,  144  Mich.  440. 

204.  A  provision  in  a  fire  insurance  policy 
that  it  shall  be  void  if  the  interest  of  the 
assured  is  other  than  unconditional  and  sole 
ownership  means  "voidable;"  and  to  avoid 
the  policy  the  insurer  must,  upon  learning 
of  the  defect  of  title,  with  reasonable 
promptness  notify  the  assured  of  its  inten- 
tion to  do  so,  and  tender  the  unearned  pre- 
mium which  it  has  received.  Glens  Falls 
Ins.  Co.  v.  Michael,  8:  708,  74  N.  E.  964,  167 
Ind.  659. 

205.  A  provision  in  an  insurance  policy 
that  the  entire  policy,  unless  otherwise  pro- 
vided by  agreement  indorsed  thereon  or  add- 


1552 


INSURANCE,  III.  e,  1. 


ed  thereto,  shall  be  void  if  the  interest  of 
the  insured  is  other  than  unconditional  and 
sole  ownership,  is  material,  valid,  and  bind- 
ing on  the  parties.  Insurance  Co.  of  N.  A. 
V.  Erickson,  2:  512,  39  So.  495,  50  Fla.  419. 

206.  A  provision  in  a  fire  insurance  policy 
that  it  shall  be  void  if  the  subject  of  in- 
surance be  a  building  standing  on  ground 
not  owned  by  the  insured  in  fee  simple  ap- 
plies to  the  conditions  existing  at  the  date 
of  the  policy,  and  not  to  future  changes  in 
title.  Re  Millers'  &  M.  Ins.  Co.  4:  231,  100 
N.  W.  485,  97  Minn.  98. 

207.  A  warranty  of  title  in  an  application 
for  insurance  on  a  building  belonging  to  the 
applicant  is  not  broken  by  the  fact  that  it 
stands  on  land  in  which  he  lias  only  an  undi- 
vided half  interest.  Nance  v.  Oklahoma  F. 
Ins.  Co.  38:  426,  120  Pac.  948,  31  Okla.  208, 

(Annotated) 

208.  The  fact  that  the  legal  title  to  a 
building  owned  by  a  partnership  composed 
of  several  members  and  thet  administrator 
of  a  deceased  member,  and  used  in  the  firm 
business,  is  in  such  members  and  the  heir 
of  the  deceased  member,  is  no  violation  of 
a  clause  in  an  insurance  policy  taken  out 
by  such  partnership,  without  making  any 
statement  as  to  title,  that  "if  the  interests 
of  the  assured  in  the  property  be  not  truly 
stated  therein  ...  or  if  the  interests 
of  the  assured  be  other  than  unconditional 
and  sole  ownership,"  the  policy  shall  be 
void.  Scott  v.  Dixie  F.  Ins.  Co.  40:  152, 
74  S.  E.  659,  70  W.  Va.  533.         (Annotated) 

209.  There  is  no  such  failure  of  title  as  to 
defeat  the  right  to  recover  on  an  insurance 
policy  providing  that  it  shall  be  void  "if 
the  interest  of  the  insured  be  other  than 
unconditional  and  sole  ownership,  or  if  the 
subject  of  insurance  be  a  building  on  ground 
not  owned  by  the  insured  in  fee  simple," 
where  the  property  insured  is  situated  upon 
a  government  homestead  owned  and  claimed 
by  the  insured,  in  which  the  legal  title  re- 
mains in  the  United  States  government, 
and  on  which  final  proof  is  not  made  until 
after  the  loss  by  fire,  since  in  case  of  loss 
the  entire  loss  falls  upon  the  homesteader, 
and  the  government  has  no  interest  in  the 
property  destroyed.  Allen  v.  Phoenix  As- 
sur.  Co.  8:  903,  88  Pac.  245,  12  Idaho,  653. 

( Annotated ) 

210.  A  husband  cannot  insure  as  sole  and 
unconditional  owner  of  the  homestead,  title 
to  which  is  in  his  wife,  and  when  loss  oc- 
curs abandon  the  contract  and  recover  on 
the  theory  that  he  had  an  insurable  inter- 
est in  the  property.  Bacot  v.  Phenix  Ins. 
Co.  25:  1226,  50  So.  729,  96  Miss.  223. 

211.  A  statute  avoiding  a  transfer  of  land 
from  wife  to  husband,  as  against  third  per- 
sons, unless  it  is  recorded,  does  not  render 
the  husband's  title  void,  so  as  to  entitle  one 
insuring  the  property  at  his  request  to  avoid 
the  policy  because  he  asserted  that  the  title 
was  in  himself,  the  insurance  company  not 
being  a  third  person  within  the  meaning  of 
the  statute.  Groce  v.  Phenix  Ins.  Co.  22: 
732,  48  So.  298,  94  Miss.  201.     (Annotated) 

212.  The  easement  of   support   which   an  j 
owner  of  one  half  of  a  party  wall  has  in 
Digest  1-52  I..R.A.(N.S.) 


the  other  half  is  covered  by  a  policy  of  in- 
surance covering  his  building  supported  by 
such  wall,  together  with  its  foundations 
and  his  half  interest  in  the  wall,  and  the 
insurer  is  therefore  liable  for  injury  to 
such  easement  of  support  by  fire  in  the  ad- 
joining building,  although  the  policy  pro- 
vides that  it  shall  be  void  if  the  interest 
of  the  insured  is  other  than  unconditional 
and  sole  ownership  or  if  the  subject  of  in- 
surance be  a  building  on  ground  not  owned 
by  the  insured  in  fee  simple.  Nelson  v. 
Continental  Ins.  Co.  31:  598,  182  Fed.  783, 
105  C.  C.  A.  215. 

213.  An  insurance  policy  providing  that 
the  entire  policy,  unless  otherwise  provided 
by  agreement  indorsed  tliereon  or  added 
thereto,  shall  be  void  if  the  interest  of  the 
insured  is  other  than  unconditional  and  sole 
ownership,  is  void  in  the  absence  of  such  an 
agreement,  where  the  insured  has  given  a 
bond  for  title  to  a  third  person,  unqualified- 
ly binding  himself,  his  heirs,  executors,  and 
administrators  to  convey  the  property  in- 
sured to  a  third  person  on  payment  of  a 
specified  amount  which  the  other  bound  him- 
self to  pay.  Insurance  Co.  of  N.  A.  v.  Erick- 
son, 2:  512,  39  So.  495,  50  Fla.  419. 

(Annotated) 

214.  One  who  has  contracted  to  sell  real 
estate  to  another,  who  makes  a  payment 
uhder  the  contract  and  is  let  into  posses- 
sion, is  not  the  unconditional  and  sole 
owner  of  the  property  within  the  meaning 
of  an  insurance  policy,  although  the  con- 
tract is  not  recorded  and  the  record  title 
is  still  in  his  name.  Sharman  v.  Continen- 
tal Ins.  Co.  52:  670,  138  Pac.  708,  167  Cal. 
117.  (Annotated) 

215. ^A  vendee  of  land,  occupying  the  same 
under  an  executory  contract  of  purchase,  on 
which  he  has  paid  a  portion  of  tl;e  purchase 
price,  is  an  "unconditional  and  sole  owner" 
in  fee  simple  o^  the  equitable  title,  within 
the  condition  of  the  insurance  policy  provid- 
ing that  it  shall  be  void  if  the  interest  of  the 
insured  is  other  than  unconditional  and  sole 
ownership  of  the  fee-simple  title.  Arkan- 
sas Ins.  Co.  v.  Cox,  20:  775,  98  Pac.  552,  21 
Okla.    873.  (Annotated) 

216.  One  in  possession  of  premises  under 
a  land  contract,  and  who  is  not  in  default, 
and  who  has  made  valuable  improvements 
on  the  land,  has  a  suflicient  interest  there- 
in to  satisfy  the  requirements  of  a  fire  insur- 
ance policy  that  the  interest  of  the  insured 
be  the  entire,  unconditional,  and  sole  owner- 
ship. Evans  v.  Crawford  County  Farmers' 
Mut.  F.  Ins.  Co.  9:  485,  109  N.  W.  952,  130 
Wis.  189. 

217.  The  interest  of  a  purchaser  of  prop- 
erty, which  he  has  unqualifiedly  agreed  to 
buy,  and  which  the  former  owner  has 
absolutely  contracted  to  sell  to  him  upon 
definite  terms,  is  the  sole  and  unconditional 
ownership,  within  the  true  meaning  of  the 
ordinary  clause  upon  that  subject  in  insur- 
ance policies,  because  the  vendor  may  com- 
pel the  vendee  to  pay  for  the  property,  and 
to  suffer  any  loss  that  occurs.  Insurance 
Co.  of  N.  A.  V.  Erickson,  2:  512,  39  So.  495, 
50  Fla.  419.  .  - 

'  .«.¥l}.f\.H.>s   i-f.— i    sr^aiCI 


INSURANCE,  III.  e,  1. 


1553 


21S.  One  liokling  real  estate  under  a  con- 
veyance in  fee  is  sole  and  unconditional 
owner,  within  the  moaning  of  a  fire-insur- 
ance policy,  notwithstanding  he  owes  a  por- 
tion of  the  purchase  price,  for  which  the 
statute  gives  a  vendor's  lien.  Insurance 
Co.  of  N.  A.  V.  Pitts,  7:  627,  41  So.  5,  88 
Miss.  587.  (Annotated) 

Change  of  title  or  interest. 
Estoppel  as  to,  see  infra,  503-505. 
See  also  supra,  57,  206. 

219.  The  word  "interest,"  in  a  forfeiture 
clause  of  an  insurance  policy,  which  provides 
that  the  policy  shall  become  void  "if  any 
change  shall  take  place  in  the  interest,  title, 
or  possession  of  the  subject  of  insurance," 
has  application  only  where  the  insured  owns 
and  insures  an  interest  less  than  title,  and 
has  application  only  where  the  insured  owns 
the  title.  Garner  v.  Milwaukee  Mechanics' 
Ins.  Co.  4:  654,  84  Pac.  717,  73  Kan.  127. 

220.  No  change  has  taken  place  in  the  in- 
terest, title,  or  possession  of  the  holder  of 
a  fire  insurance  policy  where,  at  the  time  of 
the  loss,  the  insured  owns  the  title  of  the 
subject  of  the  insurance,  although  he  has 
made  an  executory  contract  to  convey  the 
property,  and  the  consideration  has  been 
fully  paid,  when  no  transfer,  either  of  the 
title  or  possession,  has  been  actually  made. 
Garner  v.  Milwaukee  Mechanics'  Ins.  Co. 
4:  654,  84  Pac.  717,  73  Kan.  127. 

221.  Where  a  vendor  who  has  placed  his 
deed  in  escrow  awaiting  performance  of  con- 
ditions precedent  to  the  delivery,  and  has 
let  the  vendee  into  possession,  has  a  fire 
insurance  policy  on  a  house  situated  on  the 
premises,  and  the  house  is  destroyed  by  fire 
while  so  occupied,  and  before  the  conditions 
of  the  escrow  are  performed,  the  hazard 
from  fire  not  being  increased,  the  right  to 
recover  on  the  contract  of  insurance  is  not 
forfeited.  Pomeroy  v.  ^tna  Ins.  Co.  38: 
142,  120  Pac.  344,  86  Kan.  214. 

222.  A  written  agreement  to  sell  and  con- 
vey in  fee  insured  premises  to  a  tenant  in 
possession,  upon  payment  of  the  stipulated 
price,  a  portion  of  which  is  paid,  causes  a 
cliange  in  the  interest,  title,  and  possession 
of  the  subject  of  the  insurance,  sufiTicient  to 
avoid  the  policy  under  a  condition  that,  "if 
any  change,  other  than  by  the  death  of  an 
insured,  takes  place  in  the  interest,  title,  or 
possession  of  the  subject  of  insurance  (ex- 
cept change  of  occupants  without  increase  of 
hazard),  whether  by  legal  process,  or 
judgment,  or  by  voluntary  r.ct  of  the  in- 
sured, or  otherwise,  the  entire  policy  shall 
be  void."  Grunauer  v.  Westchester  F.  Ins. 
Co.  (N.  J.  Err.  &  App.)  3:  107,  62  Atl.  418, 
72  N.  J.  L.  289.  (Annotated) 

223.  The  owner  of  land  on  which  there  is 
a  building  insured  against  loss  by  fire  is  not 
deprived  of  the  right  to  recover  on  the  policy 
by  the  fact  that,  before  loss,  he  agreed 
to  transfer  the  premises,  which  agreement 
was  consummated  subsequent  to  the  destruc- 
tion of  the  building;  since  the  doctrine  of 
relation  will  not  operate  to  carry  the  trans- 
fer of  real  property  back  to  the  agreement 
to  which  it  is  referable,  for  the  benefit  of 
Digest   1-52  Ii.R.A.(N.S.) 


strangers  to  the  transaction.  Evans  v. 
Crawford  County  Farmers'  Mut.  F.  Ins.  Co. 
9:  485,  109  N.  W.  952,  130  Wis.   189. 

224.  The  appointment  of  a  receiver  and 
the  taking  of  actual  possession  by  him  in  a 
suit  to  take  possession  and  control  of  certain 
personal  property  pre\«nts  recovery  of  loss 
sustained  under  a  fire  insurance  policy  on 
the  property,  which  provides  that,  if  any 
change  take  place  in  the  interest,  title,  or 
possession  of  the  property,  "whether  by  legal 
process  of  judgment,  or  otherwise,"  the 
policy  shall  be  wholly  void.  Bronson  v. 
New  York  F.  Ins.  Co.  19:  643,  63  S.  E.  283, 
64  W.  Va.  494.  (Annotated) 

225.  No  change  in  the  interest,  title,  or 
possession  of  insured  property  is  eff"ected 
within  the  meaning  of  a  provision  on  the 
policy  avoiding  it  in  case  of  such  change, 
by  the  appointment  of  a  receiver  in  bank- 
ruptcy proceedings,  who,  without  dispos- 
sessing the  owner,  places  a  watchman  upon 
the  property,  effects  insurance  thereon,  and 
advertises  the  personal  property  for  sale. 
Marcello  use  of  South  Side  Trust  Co.  v. 
Concordia  F.  Ins.  Co.  39:  366,  82  Atl.  1090, 
234  Pa.  31. 

226.  Filing  a  petition  in  voluntary  bank- 
ruptcy, on  which  the  petitioner  was  adjudged 
a  bankrupt,  did  not  work  such  a  change  in 
his  interest,  title,  or  possession  as  renders 
void  a  policy  of  fire  insurance  on  his  stock 
of  merchandise,  which  was  destroyed  on  the 
day  following  the  filing  of  the  petition,  but 
before  either  a  receiver  or  a  trustee  was  ap- 
pointed, where,  in  view  of  the  loss  of  the 
merchandise,  the  creditors  deemed  it  10 
their  interest  to  make  a  composition  with 
the  bankrupt,  and  depend  upon  his  personal 
obligation  to  them,  and  did  so.  Gordon  v. 
Mechanics'  &  T.  Ins.  Co.  15:  827,  45  So.  384, 
120  La.  441.  (Annotated) 

227.  The  mere  rendition  of  a  judgment 
against  a  property  owner  does  not  change 
his  interest  in  the  property  within  the 
meaning  of  an  insurance  policy  which  is 
to  become  void  if  any  change  takes  place 
in  the  interest,  title,  or  possession  of  the 
subject  of  insurance,  although  the  judgment 
is  entered  in  a  foreclosure  proceeding. 
Kelley  use  of  Chisholm  v.  People's  Nat.  F. 
Ins.  Co.  50:  1 164,  104  N.  E.  188,  262  111. 
158.  (Annotated) 

228.  The  mere  levying  of  an  attachment 
on  land,  without  change  of  possession,  does 
not  effect  such  a  change  of  interest  or  title 
as  to  avoid  a  policy  of  insurance  on  the 
buildings  located  thereon.  O'Toole  v.  Ohio 
German  F.  Ins.  Co.  24:  802,  123  N.  W.  795, 
159  Mich.  187.  (Annotated) 

229.  A  confirmed  administrator's  .sale  of 
insured  property  is  within  a  provision  of 
the  policy  making  it  void  if  any  change 
takes  place  in  the  interest,  title,  or  posses- 
sion of  the  subject  of  insurance  by  legal 
process,  voluntary  act  of  the  insured,  or 
otherwise,  although  no  deed  has  been  de- 
livered or  money  paid,  since  the  equitable 
title  passed  when  the  sale  was  confirmed, 
where  the  statute  provides  that  when  cer- 
tain facts  are  shown  to  the  court  it  shall 

98 


1554 


INSURANCE,  III.  e,  1. 


make  an  order  confirming  the  sale  and  di- 
recting conveyances  to  be  executed,  and  such 
sale  from  that  time  shall  be  confirmed 
and  valid.  Moller  v.  Niagara  F.  Ins.  Co.  24: 
807,  103  Pac.  449,  54  Wash.  439. 

230.  A  provision  in  an  insurance  policy  to 
vkhich  is  attached  a»  slip,  making  the  loss 
payable  to  a  mortgagee,  that  the  conditions 
against  alienation  and  change  of  possession 
shall  apply  "in  manner  expressed  in  such 
provisions  and  conditions  of  insurance  re- 
lating to  such  interest  as  shall  be  written 
upon,  attached  or  appended  hereto,"  does 
not  prevent  such  provisions  being  applica- 
ble to  the  mortgagee,  although  the  manner 
in  which  they  are  to  be  applied  is  not  ex- 
pressly stated  in  some  writing  indorsed 
upon  or  attached  to  the  policy,  since,  in  the 
absence  of  special  agreement  indorsed  on 
the  policy,  all  its  provisions  apply  as 
against  a  mere  appointee  of  the  right  of  the 
insurer  to  the  proceeds.  Brecht  v.  Law 
Union  &  Crown  Ins.  Co.  18:  197,  160  Fed. 
39Q,  87  C.  C.  A.  351.  (Annotated) 

231.  The  assignment  of  property  and  the 
insurance  thereon  as  security  for  a  debt 
renders  the  policy  void  under  a  provision 
in  the  policy  making  it  void  if  the  interest 
of  insured  is  other  than  unconditional  own- 
ership or  if  any  change  takes  place  in  his 
interest,  title,  or  possession;  and  it  is  im- 
material that  the  insurer  consents  to  as- 
signment of  the  property  to  the  trustee  for 
the  creditor,  if  the  consent  is  based  upon 
ownership  by  the  assignee,  and  not  upon 
the  fact  that  he  is  trustee  for  a  creditor. 
Smith  v.  Retail  Merchants'  F.  Ins.  Co. 
42:  173,  137  N.  W.  47,  29  S.  D.  332. 

(Annotated) 

232.  The  fact  that  property  is  insured  in 
the  tradename  under  which  the  business  is 
conducted  by  one  procuring  the  insurance 
does  not  prevent  a  change  in  the  personnel 
of  tiie  members  of  the  concern  from  effect- 
ing a  change  in  title  or  ownership  of  the 
property,  within  the  meaning  of  a  clause  of 
the  policy  avoiding  it  in  case  of  such  change, 
although  the  tradename  is  continued  by  the 
new  owners  of  the  business.  American 
Steam  Laundry  Co.  v.  Hamburg  Bremen  F. 
Ins.  Co.  21:442,  113  S.  W.  394,  121  Tenn. 
13.  (Annotated) 
Mortgages;    foreclosure. 

Acts   of  mortgagor   as  affecting  mortgagee, 

see  infra,  866-871. 
See  also  supra,  200,  230. 

233."  An  outstanding  unfiled  chattel  mort- 
gage on  a  stock  of  goods,  given  as  security 
for  a  guaranty  of  a  debt  of  the  mortgagor, 
although  containing  a  clause  that  it  shall 
not  be  valid  and  binding  until  filed,  consti- 
tutes an  encumbrance  within  the  meaning 
of  a  policy  insuring  such  goods  against  fire, 
which  provides  that  the  policy  shall  be  void 
if  the  subject  of  the  insurance  be  or  be- 
come encumbered  by  a  chattel  mortgage. 
Madsen  v.  Farmers'  &  M.  Ins.  Co.  29:  97, 
126  N.  W.  1086,  87  Neb.  107. 

234.  The  indorsement  upon  an  insurance 
policy  of  a  clause,  "subject  to  all  the  con- 
ditions of  the  policy,  loss  payable  to"  a 
Digest   1-52  L.R.A.(N.S.) 


certain  person  named  "as  his  interest  may 
appear,"  is  not  sufficient,  although  the  per- 
son named  is  the  mortgagee,  to  show  con- 
sent to  a  chattel  mortgage,  where,  by  tlie 
terms  of  the  policy,  it  is  to  become  void  if 
the  property  becomes  encumbered  by  such 
mortgage,  and  no  provision  of  the  policy  can 
be  waived  unless  such  waiver  shall  be  writ- 
ten upon  the  policy,  while  the  person  named 
has  an  interest  as  mortgagee  of  the  real  es- 
tate sufficient  to  support  the  indorsement. 
Atlas  Reduction  Co.  v.  New  Zealand  Ins. 
Co.  9:  433,  138  Fed.  497,  71  C.  C.  A.  21. 

235.  A  policy  of  fire  insurance  procured 
upon  articles  of  personal  property  by  the 
owner,  and  made  payable  to  purchase-money 
creditors,  who  had  retained  title  to  the 
separate  articles  sold  by  them,  to  secure 
payment  of  the  purchase  price,  is  forfeited 
under  a  clause  providing  therefor  if  the 
property  became  encumbered  by  chattel 
mortgage,  where  the  owner  e.vecutes  to  one 
of  the  creditors  a  chattel  mortgage  upon 
his  interest  in  the  property  purchased  from 
another.  Hartford  F.  Ins.  Co.  v.  Liddell 
Co.  14:  168,  60  S.  E.  104,  130  Ga.  8. 

236.  There  is  not  such  joint  ownership 
of  insured  property  as  to  take  a  chattel 
mortgage  executed  thereon  by  the  insured, 
out  of  the  operation  of  a  covenant  in  the 
policy  against  encumbrances,  where  the 
mortgage  was  given  to  a  creditor  from  whom 
part  of  the  insured  property  was  purchased, 
upon  the  insured's  interest  in  the  rest  of 
the  property.  Hartford  F.  Ins.  Co.  v.  Lid- 
dell Co,  I4:'i68,  60  S.  E.  104,  130  Ga.  8. 

237.  A  mortgage  clause  that  the  loss,  if 
any,  shall  be  payable  to  the  mortgagee  as 
his  interest  may  appear,  "subject  to  the 
terms  and  conditions  of  the  policy,"  does 
not  relieve  the  insurer  from  liability  upon 
a  policy  containing  a  condition  that  it 
shall  be  avoided  by  proceedings  to  foreclose 
any  mortgage  on  the  property,  although  the 
mortgagee  foreclosed  and  caitsed  the  prop- 
erty to  be  sold  and  was  holding  a  certificate 
of  purchase,  the  period  of  redemption  hav- 
ing expired  since  the  fire,  the  insuring  of 
a  mortgage  lien  being  sufficient  indication 
that  the  company  must  have  contemplated 
a  possible  or  probable  foreclosure.  Citizens' 
State  Bank  v.  Shawnee  F.  Ins.  Co.  49:  972, 
137  Pac.  78,  91  Kan.  18. 

238.  A  sale  of  mortgaged  property  for 
breach  of  condition,  under  a  power  contained 
in  the  mortgage,  to  the  mortgagee,  is  with- 
in the  terms  of  a  clause  in  an  insurance 
policy  avoiding  it  if  the  property  shall  be 
sold  without  th2  consent  of  the  insurer, 
although  the  policy  is  made  payable  to  the 
mortgagee,  as  his  interest  may  appear. 
Boston  Co-Operative  Bank  v.  American  C. 
Ins.  Co.  23:  1147,  87  N.  E.  594,  201  Mass. 
350.  (Annotated) 
Encnmbrances    generally. 

Waiver  of  provision  as  to,  see  infra,  571. 
Failure  to  allege  that  property  at  time  of 

fire  was  occupied  as  dwelling  house,  see 

Appeal  and  Error,  822,  823. 
Conclusiveness   on   appeal   of   verdict   as  to 

increase  of  hazard,  see  Appeal  and  Eb- 

BOB,  907. 


INSURANCE,  III.  e,  1. 


Waiver  or  estoppel  as  to,  see  infra,  506-508. 

239.  A  clause  in  a  fire  insurance  policy, 
directing  payment  to  a  certain  person  "as 
his  interest  may  appear,"  does  not  amount 
to  an  assent  by  the  insurer  to  a  subse- 
quent encumbrance  given  by  the  insured  to 
the  same  person.  Hartford  F.  Ins.  Co.  v. 
Liddell  Co.  14:  168,  60  S.  E.  104,  130  Ga.  8. 

c.  Use  and  care  of  property. 

(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 

Increase   of   risk   as  question   for   jury,   see 
Trial,  649. 

240.  An  insurer  cannot  be  held  liable  for 
the  value  of  property  destroyed  by  a  fire, 
if  the  owner  exerted  no  proper  diligence  to 
save  it,  although  there  was  ample  time  and 
opportunity  to  do  so,  and  the  policy  con- 
tained a  stipulation  that  the  insurer  should 
not  be  liable  for  loss  caused  directly  or  in- 
directly by  neglect  of  the  insured  to  use  all 
reasonable  means  to  save  and  preserve  the 
property  at  and  after  a  fire,  or  when  the 
property  is  endangered  by  fire  in  neighbor- 
ing premises.  First  Nat.  Bank  v.  German 
American  Ins.  Co.  38:  213,  134  N.  W.  873,  23 
N.  D.  139. 

241.  A  temporary  increase  of  hazard, 
which  ceases  before  loss,  will  not  prevent 
recovery  on  a  fire-insurance  policy  which 
provides  that  it  shall  be  void  if  the  hazard 
is  increased.  Sumter  Tobacco  Warehouse 
Co.  V.  Phoenix  Ins.  Co.  10:  736,  56  S.  E. 
654,  76  S.  C.  76.  (Annotated) 

242.  A  mere  possibility  that  an  unsuc- 
cessful attempt  by  an  unknown  person  to 
burn  an  insured  building  may  be  repeated, 
coupled  with  failure  to  take  any  adequate 
measures  to  prevent  it  or  to  notify  the 
insurer,  is  not  an  increase  of  hazard  which 
will  avoid  the  policy,  under  a  provision  that 
it  sliall  be  void  if  the  hazard  is  increased 
by  any  means  within  the  control  or  knowl- 
edge of  the  insured.  Williamsburg  City  F. 
Ins.  Co.  v.  Weeks  Drug  Co.  31:  603,  132 
S.  W.  121,  103  Tex.  608.  (Annotated) 

243.  A  warranty  in  an  insurance  policy 
that  insured  will  use  due  diligence  that  the 
automatic  sprinkler  system  shall  at  all 
times  be  maintained  in  good  working  order 
is  not  broken  by  the  temporary  discon- 
nection of  the  system  for  the  purpose  of 
making  extensions  to  it,  where  the  work  of 
making  the  alterations  is  prosecuted  with 
due  diligence.  Port  Blakely  Mill  Co.  v. 
Springfield  F.  &  M.  Ins.  Co.  28:  593,  106 
Pac.  194,  56  Wash.  681,  110  Pac.  36,  59 
Wash.    501.  (Annotated) 

244.  Temporary  breach  by  an  insured  of 
his  warranty  that  due  diligence  will  be  used 
that  the  automatic  sprinkler  system  shall 
at  all  times  be  maintained  in  good  working 
order  will  not  prevent  his  recovering  on 
the  policy,  if,  at  the  time  of  the  loss,  it  was 
in  good  working  order,  and  the  breach  had 
nothing  to  do  with  the  loss, — at  least,  where 
there  is  no  express  provision  in  the  policy 
for  its  becoming  void  for  such  breach,  while 
Digest  1-52  L.R.A.(N.S.) 


such  provisions  are  found  in  connection 
with  other  conditions  and  warranties.  Port 
Blakely  Mill  Co.  v.  Springfield  F.  &  M. 
Ins.  Co.  28:  593,  106  Pac.  194,  56  Wash.  681. 
Alterations;  repairs. 

245.  The  making  of  repairs  necessary  for 
the  proper  care  and  preservation  of  the 
property  is  not  within  the  operation  of  a 
provision  in  an  insurance  policy  making 
the  working  of  mechanics  in  altering  or 
repairing  the  premises  avoid  the  policy. 
Lebanon  County  v.  Franklin  F.  Ins.  Co. 
44:  148,  85  Atl.  419,  237  Pa.  360. 

(Annotated) 

Vacancy;    occupancy;    change    of    use. 

Agent's  power  with  respect  to  vacancy,  see 
supra,'  41,  43. 

Revival  of  policy  on  reoccupancy,  see  infra, 
414. 

Waiver  or  estoppel  as  to,  see  infra,  506,  507, 
552-554. 

Raising  question  of  effect  of  vacancy  for 
first  time  on  appeal,  see  Appeal  and 
Error,  746. 

Parol  evidence  to  explain  policy,  see  Evi- 
dence, 919. 

246.  An  independent  clause  in  a  standard 
fire  insurance  policy,  providing  that  the 
policy  shall  be  void  if  the  property  becomes 
vacant  without  the  consent  of  the  insurer, 
is  not  afl'ected  by  another  clause  providing 
that  the  policy  shall  be  void  if  the  situation 
or  circumstances  affecting  the  risk  shall  be 
so  altered  as  to  ca\  se  increase  in  the  risk, 
and  such  increase  ne:  1  not,  therefore,  be 
shown,  to  avoid  the  policy  under  the  former 
clause.  Knowlton  v.  Patrons'  Androscoggin 
Mut.  F.  Ins.  Co.  2:  517,  62  Atl.  289,  100  Me. 
481. 

247.  A  provision  in  a  fire  insurance  policy 
avoiding  it  in  case  the  property  becomes 
vacant  is  not  affected  by  another  clause  giv- 
ing the  insurer  an  option  to  repair  in  case 
of  injury  to  the  property,  so  as  to  preserve 
the  insurance  in  force  in  case  the  property 
is  vacated  after  injury  by  fire,  and  permit 
recovery  for  a  second  loss  which  occurs  be- 
fore the  option  is  exercised.  Kupfersmith 
v.  Delaware  Ins.  Co.  (N.  J.  Err.  &  App.) 
45:  847,  86  Atl.  399,  84  N.  J.  L.  271. 

248.  A  provision  in  an  insurance  policy 
which  is  to  become  void  if  the  building  be- 
comes and  remains  vacant  for  five  days, 
unless  continued  by  consent  of  the  insurer, 
that  it  shall  be  the  duty  of  the  owner  to 
report  a  vacancy  within  five  days  of  such 
occurrence  and  as  often  as  every  ten  days 
thereafter,  applies  only  when  no  permit  for 
vacancy  has  been  issued.  Duncan  v.  i^a- 
tional  Mut.  F.  Ins.  Co.  20:  340,  98  Pac.  634, 
44  Colo.  472. 

249.  No  recovery  can  be  had  under  a  fire 
insurance  policy  stipulating  that  the  policy 
shall  be  void  if  the  property  insured  shall 
become  vacant,  unoccupied,  or  uninhabited 
without  the  consent  of  the  insurer,  where  the 
loss  by  fire  occurred  while  the  building  was 
vacant  without  the  knowledge  or  consent  of 
the  insurer.  Germania  F.  Ins.  Co.  v.  Wer- 
ner, 12:  456,  81  N.  E.  980,  76  Ohio  St.  543. 

250.  The  provisions  of  Ohio  Rev.  Stat. 
1906,  §  3643,  requiring  payment  of  loss  in- 


1556 


IMSURANtE,  Hi.  e,   1. 


flicted  by  fire  upon  insured  property,  "in 
the  absence  of  any  change  increasing  the 
risk  without  the  consent  of  the  insurers," 
refer  only  to  a  change  in  the  insured  build- 
ing or  structure  itself,  and  are  not  applica- 
ble to  anything  distinct  from,  or  accidental- 
ly related  to,  the  corpus  of  tlie  insured 
building  or  structure,  such  as  temporary  va- 
cancy of  the  insured  premises.  Germania 
F.  Ins.  Co.  V.  Werner,  12:  456,  81  N.  E.  980, 

76  Ohio  St.  543.  (Annotated) 

251.  Reoccupation,  before  the  fire  occurs 
of  an  insured  building  after  a  vacancy,  suf- 
ficient to  avQid  the  policy  under  a  condition 
against  vacancy,  revives  the  policy,  so  as 
to  permit  a  recovery  in  case  the  fire  occurs 
during  the  occupancy.  Insurance  Co.  of  N. 
A.  V.  Pitts,  7:  627,  41  So.  5,  88  Miss.  587. 

252.  An  insurance  company  without 
knowledge  of  the  breach  of  a  condition 
against  vacancy  until  after  a  fire  has  oc- 
curred may,  if  it  does  not  waive  the  for- 
feiture, insist  upon  the  same.  Schmidt  v. 
Williamsburgh  Citv  F.  Ins.  Co.  51:  261, 
144  N.  VV.  1044,  95  Neb   43 

253.  One  applying  for  insurance  on  a 
"dwelling  house"  which  he  states  is  in  proc- 
ess of  erection  complies  with  his  undertak- 
ing if.  when  occupied,  the  building  is  used 
for  that  purpose.  Harris  v.  North  Amer- 
ican Ins.  Co.  4:  1 137,  77  N  E.  493,  190  Mass. 
361 

254  A  building  in  process  of  construction 
is  not  within  the  meaning  of  an  instruction 
by  an  insurance  company  to  its  agent  not  to 
insure  unoccupied  buildings.  Harris  v.  North 
American  Ins.  Co.  4:  1137,  77  N.  E.  493, 
190    Mass.    361.  (Annotated) 

255.  A  provision  in  an  insurance  policy 
rendering  it  void  in  case  the  premises  be- 
come vacant  by  the  removal  of  the  owner  or 
occupant  has  no  application  to  a  policy  is- 
sued on  a  building  in  process  of  erection, 
which,  because  not  fully  fitted  for  occu- 
pancy, is  never  occupied  prior  to  the  fire. 
Harris  v.  North  American  Ins.  Co.  4:  1137, 

77  N.  E.  493,  190  Mass.  361.        (Annotated) 

256.  The  removal  from  a  building  in  proc- 
ess of  construction  of  mechanics  who  have 
been  in  possession  under  a  permit  from  the 
insurance  companj'  does  not  create  a  forfei- 
ture under  a  clause  of  the  policy  making 
it  void  in  case  the  premises  become  vacant 
by  tlie  removal  of  the  owner  or  occupant, 
since  the  permit  for  their  presence  refers  to 
the  clause  relating  to  increase  of  risk,  and  is 
not  a  waiver  of  the  provision  against  va- 
cancy. Harris  v.  North  American  Ins.  Co. 
4:  1137,  77  N.  E.  493,  190  Mass.  361. 

257.  The  terms  of  an  insurance  policy  ren- 
dering it  void  in  case  of  vacancy  of  a  build- 
ing cannot  be  changed  by  implied  waiver  in 
the  issuance  of  a  policy  on  a  building  known 
to  be  unoccupied,  since  the  provision  refers 
to  a  possible  future,  and  not  a  present,  use 
of  the  property.  Harris  v.  North  American 
Ins.  Co.  4:  1137,  77  N.  E.  493,  190  Mass.  .361. 

258.  Buildings  are  vacant,  or  personally 
unoccupied,  within  the  meaning  of  a  clause 
in  an  insurance  policy  making  it  void  in 
case  they  become  so,  where,  because  of  sick- 
ness, the  occupant  moves  his  family  to  a 
Digest  1-52  L.R.A.(N.S.) 


nearby  village  for  medical  attention,  with- 
the  intention  of  returning  when  the  sick  re- 
cover, although  he  himself  is  at  the  house- 
nearly  every  day  in  carrying  on  the  work 
about  the  place.  Knowlton  v.  Patrons' 
Androscoggin  Mut.  F.  Ins.  Co.  2:  517,  62  Atl. 
289,  100  Me.  481.  (Annotated) 

259.  The  general  and  usual  condition 
against  vacancy  in  insurance  policies  on 
property  occupied  by  the  owner,  which  is 
inserted  in  a  policy  on  a  building  occupied 
by  a  tenant,  will  not  operate  to  avoid  the 
policy  immediately  upon  the  removal  of  the 
tenant,  of  which  the  owner  ha«  no  notice  or 
reasonable  opportunity  to  obtain  it.  Ohio 
Farmers'  Ins.  Co.  v.  Vogel,  3:  966,  76  N.  E. 
977,  166  Ind.  239.  (Annotated) 

260.  A  building  leased  to  a  woman  for  a 
boarding  house  does  not  become  vacant  and 
unoccupied  within  the  meaning  of  a  clause 
in  an  insurance  policy  rendering  it  void 
under  such  circumstances,  if,  after  the  ten- 
ant has  removed  the  most  of  her  furniture 
to  another  building,  her  husband  and  his 
man  continue  to  occupy  the  building  nights, 
looking  after  his  stock,  which  remains  on 
the  premises.  Seubert  v.  Fidelity-Phenix 
Ins.  Co.  40:  58,  136  N.  W.  103,  29  S.  D.  261. 

(Annotated) 

261.  Conditions  in  fire  insurance  policies 
that  they  shall  be  void  if  the  use  of  the 
insured  building  be  changed  or  if  it  become 
vacant  or  unoccupied  are  broken  and  no  re- 
covery can  be  had  in  an  action  on  the 
policies  where,  at  the  time  of  the  loss,  the 
building  was  used  for  the  temporary  stor- 
age of  the  library  and  a  portion  of  the 
household  effects  of  a  teacher  formerly  liv- 
ing therein,  but  its  use  for  school  purposes 
had  been  suspended  for  an  indefinite  period, 
although  a  lease  contemplating  the  estab- 
lishment of  a  new  school  of  the  same  char- 
acter had  been  negotiated,  but  the  tenant 
had  not  arrived  or  taken  possession.  Con- 
necticut F.  Ins.  Co.  V.  Buchanan,  4:  758, 
141  Fed.  877,  73  C.  C.  A.  111. 

262.  Fire  insurance  policies  contemplate 
the  use  and  occupancy  of  the  insured  prop- 
erty as  a  normal  school  and  dwelling  and 
make  the  same  a  condition  to^the  accept- 
ance and  continuance  of  the  risk,  where  one 
of  the  policies  insures  the  premises  as  a 
"normal  school  and  dwelling"  and  the  other 
insures  it  "occupied,  and  only  while  occu- 
pied, as  a  normal  school  and  dwelling,"  both 
policies  further  providing  that  they  shall  be 
void  in  case  of  change  of  use  or  occupants 
except  change  of  occupants  without  increase 
of  hazard,  or  if  the  building  become  vacant 
or  unoccupied.  Connecticut  F.  Ins.  Co.  v. 
Buchanan,  4:  758,  141  Fed.  877,  73  C.  C. 
A.  111. 

263.  A  policy  of  insurance  on  a  woolen 
mill,  which  provides  that  it  shall  be  void  if 
the  hazard  is  increased  by  any  means  with- 
in the  control  or  knowledge  of  the  insurer, 
becomes  void  when  the  mill  is  devoted  to 
the  manufacture  of  cotton  bats.  Progress 
Spinning  &  Knitting  Mills  Co.  v.  Southern 
Nat.  Ins.  Co.  45:  122,  130  Pac.  63,  42  Utah, 
263.  (Annotated) 

.A.H.J   : 


INSURANCE,  III.  e,  1. 


1557 


Suspension  of  business. 

Secondary  evidence  as  to  whether  report  of 
agent  issuing  policy  contained  anything 
as  to  idleness  of  plant  insured,  see  Evi- 
dence, 712. 

264.  Insurance  of  a  building  which  is  not 
in  operation  as  a  manufactory  at  the  time, 
as  "occupied  as  an  ice  factory,"  does  not 
require  its  operation  as  such,  to  make  the 
policy  valid,  under  a  provision  that  the 
policy,  shall  be  void  if  on  a  manufacturing 

.establishment  which  shall  cease  to  be  oper- 
ated  for  ten   consecutive   days.     Home   Ins. 
Co.  V.  North  Little  Rock  Ice  &  E.  Co.  23: 
1201,  111  S.  W.  994,  86  Ark.  538. 
Watclinian. 

265.  The  insurer  of  a  vessel  is  relieved 
from  liability  for  its  loss  by  fire  if  the  fire 
occurs  during  the  absence  of  the  watchman 
whom  the  insured  has  warranted  to  have 
at  all  times  on  board,  although  he  left  with- 
out the  owner's  knowledge,  merely  to  get  a 
change  of  clothing.  Whealton  Packing  Co. 
V.  ^tna  Ins.  Co.  34:  563,  185  Fed.  108,  107 
C.  C.  A.  113.  (Annotated) 
Chan[;e  of  location. 

266.  A  policy  of  insurance  on  chattels, 
giving  permission  to  move  them  from  their 
location  to  a  specified  building,  the  policy  to 
cover  the  property  during  removal  in  propor- 
tion as  the  value  in  each  location  shall  bear 
to  the  whole  value,  will  not  cover  the  prop- 
erty while  temporarily  in  anotlier  building, 
although  in  process  of  removal.  Palatine 
Ins.  Co.  V.  Kehoe,  15:1007,  83  N.  E.  866,  197 
Mass.  354. 

Proliibited  articles. 

Waiver  or  estoppel  as  to,  see  infra,  509,  534, 
575. 

267.  Recovery  on  a  fire  Insurance  policy 
is  not  prevented  by  the  fact  that  prohibited 
articles  were  kept  upon  the  premises  dur- 
ing the  life  of  the  policy,  if  such  practice 
was  discontinued  prior  to  the  loss  and  did 
not  contribute  thereto,  while  premiums  were 
paid  and  renewal  receipts  issued  after  the 
discontinuance.  McClure  v.  Mutual  F.  Ins. 
Co.  48:  1221,  88  Atl.  921,  242  Pa.  59. 

(Annotated) 

268.  An  insurance  policy  will  not  be  avoided 
by  keeping  on  the  premises  articles  pro- 
hibited by  the  printed  portion  of  the  pol- 
icy if  they  were  part  of  a  general  stock 
of  merchandise  which  the  written  part  of 
the  policy  permitted  to  be  kei)t  thereon. 
McClure  v.  Mutual  F.  Ins.  Co.  48:  1221,  88 
Atl.  921,  242  Pa.  59. 

269.  The  presence  on  the  insured  premises 
of  a  small  quantity  of  gasolene  in  a  gasolene 
stove  used  for  cooking,  from  which  the  fire 
originated,  is  not  a  storing  or  keeping  with- 
in a  condition  of  the  policy  that  the  in- 
surer shall  not  be  liable  "for  loss  or  damage 
occuring  while  gasolene  is  stored  or  kept 
in  the  building  insured."  Thompson  v. 
E(iuity  Fire  Ins.  Co.  3  B.  R.  C.  1,  [1910] 
A.  C.  592.  Also  Reported  in  80  L.  J.  P.  C. 
N.  S.  13,  103  L.  T.  N.  S.  153,  26  Times  L.  R. 
616.  (Annotated) 

270.  The  keeping  upon  insured  premises 
of  a  very  small  quantity  of  gasolene  for 
use  in  an  engine  used  to  operate  the  ma- 
Digest   1-52  I..R.A.(N.S.) 


chinery  necessary  for  the  business  does  not 
nullify  insurance  upon  the  property,  al- 
though the  keeping  of  gasolene  is  prohib- 
ited by  the  policy,  if  premiums  were  paid. 
McClure  v.  Mutual  F.  Ins.  Co.  48:  1221,  88 
Atl.  921,  242  Pa.  59. 

271.  The  use  of  a  gasolene  torch  in  re- 
moving paint  from  an  insured  building  is 
not,  as  matter  of  law,  within  a  clause  of 
the  policy  avoiding  it  if  insured  shall  keep 
or  use  gasolene  on  the  premises,  or  permit 
it  to  be  so  kept  or  used.  Lebanon  County 
V.  Franklin  F.  Ins.  Co.  44:  148,  85  Atl.  419, 
237  Pa.  360. 

272.  A  fire  insurance  policy  in  the  stand- 
ard form  is  not  made  void  by  the  use  of  a 
gasolene  torch  by  a  painter  for  the  pur- 
pose of  burning  off  paint  from  the  building 
insured,  where  the  work  has  continued  for 
less  than  the  fifteen  days  allowed  by  the 
policy  for  repairs.  Garrebrant  v.  Continen- 
tal Ins.  Co.  (N.  J.  Err.  &  App.)  12:  443,  67 
Atl.  90,  75  N.  J.  L.  577. 

273.  The  taking  of  a  pint  of  gasolene  in 
a  bottle  securely  corked,  into  an  insured 
dwelling,  for  cleaning  purposes,  is  not  with- 
in a  clause  of  the  policy  avoiding  it  if  there 
be  kept,  used,  or  allowed  on  the  premises 
"any  gasolene."  Arnold  v.  American  Ins. 
Co.  25:  6,  84  Pac.  182,  148  Cal.  660. 

274.  A  clause  in  an  insurance  policy, 
making  it  void  if  gasolene  is  kept  or  al- 
lowed on  the  premises  is  not  violated  by 
the  delivery  in  the  building  of  a  five-gal- 
lon can,  ordered  for  use  elsewhere  by  one 
of  the  insured,  who  was  absent  When  it  ar- 
rived, where  it  was  set  outside  upon  his 
return,  a  few  moments  afterwards,  and 
taken  away  by  him  within  an  hour.  Clute 
v.  Clintonville  Mut.  F.  Ins.  Co.  32:  240,  129 
N.  W.  661,  144  Wis.  638.  (Annotated) 

275.  Violation  of  a  provision  in  a  fire  in- 
surance policy  prohibiting  the  storing  of 
seed  cotton  or  loose  lint  cotton  in  the  in- 
sured building  renders  the  policy  void,  al- 
though the  cotton  was  stored  in  the  build- 
ing, without  the  knowledge  of  the  insured, 
by  one  to  whom  he  had  leased  the  premises, 
and  who  was  in  control  of  them.  Edward* 
V.  Farmers'  Mut.  Ins.  Asso.  12:  484,  57  S. 
E.  707,  128  Ga.  353.  (Annotated) 

d.   Books;   inventory;  iron-safe  clause. 

(See   also   same   heading   in  Digest   L.B.A. 

1-10.) 

Waiver  as  to,  see  infra,  574,  620 ;  Trial, 
653. 

Nonwaiver  agreement  as  to,  between  insur- 
ance company  and  bankrupt  and  re- 
ceiver of  latter's  property,  see  Bank- 
KUPTCY,  31. 

Conflict  of  laws  as  to,  see  Conflict  or 
Laws,  47. 

Question  for  jury  as  to  violation  of  provi- 
sion for  keeping  books,  see  Trial,  329. 

See  also  infra,  300. 

276.  A  stipulation  in  a  fire  insurarice  pol- 
icy, that  the  insured  shall  make  and  keep  in- 
ventories and  books,  which  shall  be  kept  in 


1558 


INSURANCE,  III.  e,  1. 


a  fireproof  safe,  and,  in  case  of  loss,  shall  | 
produce  such  boolcs  and  inventories  for  the  j 
inspection  of  the  insurer,  and,  in  the  event  | 
of  failure  to  do  so,  that  the  entire   policy 
shall  be  null  and  void, — is  a  reasonable  and 
competent  provision  to  insert  in  and  attach 
to  the  policy.     Gish  v.  Insurance  Co.  of  N. 
A.   13:  826,  87  Pac.  869,   16  Okla.  59. 

277.  Keeping  a  merchandise  account  shov- 
ing goods  purchased  from  time  to  time,  some 
of  the  entries  in  which  show  the  character 
of  the  goods  and  their  price,  while  many 
others  merely  state  the  name  of  the  person 
or  firm  from  whom  they  were  purchased  and 
the  amount,  is  not  a  sufficient  compliance 
with  a  requirement  in  a  policy  of  fire  in- 
surance covering  a  stock  of  goods,  that  the 
insured  shall  keep  a  set  of  books  showing  all 
purchases,  sales,  and  shipments,  ^tna  Ins. 
Co.  V.  Johnson,  9:  667,  56  S.  E.  643,  127  Ga. 
491. 

278.  A  clause  in  a  policy  of  fire  insurance 
requiring  the  insured  to  "keep  a  set  of  books 
which  shall  clearly  and  plainly  present  a 
complete  record  of  business  transacted,  in- 
cluding all  purchases,  sales,  and  shipments 
both  for  cash  and  credit,"  is  a  promissory 
warranty  which  must  be  complied  with;  but, 
in  determining  what  it  requires,  a  fair  and 
liberal  construction  should  be  placed  upon 
it  so  as  to  effectuate  the  contract  of  in- 
demnity, rather  than  defeat  it.  ^tna  Ins. 
Co.  v.  Johnson,  9:  667,  56  S.  E.  643,  127  Ga. 
491. 

279.  The  fact  that  a  stock  of  merchandise 
has  not  been  removed  from  the  storehouse, 
and  that  it  is  covered  by  the  original  in- 
voices, does  not  make  inapplicable  a  pro- 
vision in  a  fire  insurance  policy  requii-ing 
an  inventory.  Day  v.  Home  Ins.  Co.  40:  652, 
58  So.  549,  177  Ala.  600. 

280.  The  books  of  a  merchant,  together 
with  the  original  invoices  of  his  stock,  can- 
not supply  the  requirements  of  a  policy  of 
insurance  on  the  property  requiring  an  in- 
ventory, where  the  policy  requires  both  in- 
ventory and  books.  Day  v.  Home  Ins.  Co. 
40:  652,  58  So.  549,  177  Ala.  600. 

281.  For  the  purpose  of  determining 
whether  or  not  an  inventory  is  taken  in 
time,  the  taking  eflFect  of  an  insurance  con- 
tract is  not  fDstponed  until  a  clerical  error 
in  the  policy  as  to  the  amount  of  the  insur- 
ance has  been  rectified,  nor  until  the  pay- 
ment of  the  premium,  there  being  no  pro- 
vision in  the  policy  that  it  shall  not  be 
binding  until  the  premium  is  actually  paid. 
Reynolds  v.  German  American  Ins.  Co.  15: 
345,  68  Atl.  262,  107  Md.  110. 

282.  The  iron-safe  clause  in  an  insurance 
policy  is  not  complied  with,  either  literally 
or  substantially,  by  the  taking  of  an  inven- 
tory fourteen  days  after  the  time  limit  for 
doing  so  has  expired ;  and  the  policy,  having 
become  void  for  that  reason,  is  not  revived 
thereby.  Reynolds  v.  German  American  Ins. 
Co.  15:  345,  68  Atl.  262,  107  Md.  110. 

283.  The  fact  that  balances  from  a  set  of 
books  containing  an  itemized  statement  of 
business  transacted  by  the  insured  during  a 
portion  of  the  term  covered  by  the  policy 
vere  carried  forward  into  a  new  set  of 
Digest  1-52  L:R.A.(N.S.) 


books  which  were  kept  in  a  fireproof  safe, 
tihe  old  books  being  exposed  to  fire,  and  lost, 
will  not  satisfy  the  "iron-safe  clause"'  re- 
quiring the  preservation  of  complete  rec- 
ords of  assured's  business  during  the  life 
of  the  policy.  .¥An'd.  Ins.  Co.  v.  Mount, 
15:  471,  44  So.  162,  45  So.  835,  90  Miss.  642. 

(Annotated) 

284.  Leaving  account  books  in  an  ex- 
posed position  in  the  store  when  locking  and 
leaving  it  for  luncheon,  with  the  intention 
of  being  absent  a  half  hour,  violates  a  pro- 
vision in  a  policy  of  insurance  on  stock  and* 
fixtures  requiring  the  books  to  be  kept  in  an 
iron  safe  or  in  some  place  not  exposed  ta  1 
a  fire  which  would  destroy  the  property 
insured,  when  the  building  is  not  actually 
open  for  business.     Joffe  v.  Niagara  F.  Ins. 

Co.  51:  1047,  81  Atl.  281,  116  Md.  155. 

285.  Substantial  compliance  with  the  pro- 
visions of  an  iron-safe  clause  in  an  insur- 
ance policy  which  requires  an  inventory 
cannot  be  found  where  nothing  is  shown  ex- 
cept some  unitemized  bills,  so  that  the  in- 
sured himself  states  that  he  does  not  know 
how  much  of  the  various  classes  of  goods 
carried  he  had.  Coggins  v.  .^Etna  Ins.  Co. 
8:  839,  56  S.  E.  506,  144  N.  C.  7. 

286.  The  loss  of  an  inventory  by  theft 
from  an  unlocked  safe  while  the  building 
in  which  such  safe  was  located  was  open 
for  business,  and  the  consequent  failure  to 
produce  the  same,  does  not  invalidate  a 
fire  insurance  policy  containing  an  iron- 
safe  clause,  where  the  insured  used  such 
care  on  the  occasion  of  the  theft  as  prudent 
men  acting  in  good  faith  would  have  used, 
notwithstanding  a  provision  that  a  failure 
to  produce  an  inventory  shall  render  the 
policy  null  and  void,  as  such  provision  does 
not  require  production  of  the  inventory 
when  it  has  been  lost  through  no  fault, 
neglect,  or  design  of  the  insured.  German 
Alliance  Ins.  Co.  v.  Newbern,  28:  337,  106 
Pac.  826,  25  Okla.  489.  (Annotated) 

e.  Other  insurance. 

(See  also   same  heading  in  Digest   L.R.A. 
1-70.)  ^ 

Other  insurance  on  life,  see  infra,  III.  e,  2, 

d. 
Waiver  of  provision  as  to,  ^ee  infra,  610, 

511,  530-532,  576,  603. 
See  also  supra,  38. 

287.  Where  the  original  policy  of  fire  in- 
surance was  void  for  nondisclosure  of  -prior 
insurance,  a  renewal  thereof  is  likewise  a 
nullity,  although  the  prior  insurance  has 
ceased  to  exist  in  the  interval.  Liverpool 
&  London  &  Globe  Ins.  Co.  v.  Asrricultural 
Savings  &  Loan  Co.  1  B.  R.  C.  593,  33  Can. 
S.  C.  94.  (Annotated) 

288.  Whether,  where  parties  to  an  al- 
leged contract  of  insurance  agree  in  treat- 
ing it  as  void,  it  may  be  considered  as  violat- 
ing a  condition  in  another  policy  against 
additional  undisclosed  insurance,  qucere. 
Equitable  Fire  &  Acci.  Office  Ltd.  v.  Ching 
Wo  Hong,  1  B.  R.  C.  34,  [1907]  A.  C.  96. 


INSURANCE,  III.  e,  2. 


1559 


Also  Reported  in  76  L.  J.  C.  P.  N.  S.  31,  96 
L.  T.  X.  S.  1,  23  Times  L.  R.  200. 

289.  A  policy  of  fire  insurance  contain- 
ing a  stipulation  making  it  null  and  void 
if  the  insured  omits  to  give  notice  of  any 
additio;ial  insurance  on  the  property  cov- 
ered, is  not  avoided'  by  omission  to  give 
notice  of  an  additional  insurance  which 
never  became  effective.  Equitable  Fire  & 
Acci.  Office  Ltd.  v.  Ching  Wo  Hong,  1  B.  R. 
C.  34,  [1907]  A.  C.  96.  Also  Reported  in 
76  L.  J.  C.  P.  N.  S.  31,  96  L.  T.  N.  K.  1, 
23  Times  L.  R.  200.  "  (Annotated) 

290.  A  representation  in  an  application 
for  insurance  as  to  the  existence  of  other 
insurance  on  the  property  must  be  true 
when  the  application  is  accepted,  to  comply 
with  a  requirement  that  all  facts  stated  in 
the  application  must  be  true  imder  penalty 
of  avoiding  the  contract,  and  if  untrue  at 
that  time,  its  truthfulness  when  made  is 
immaterial,  Carleton  v.  Patrons'  Andros- 
coggin Mut.  F.  Ins.  Co.  39:  951,  82  Atl.  649, 
109  Me.  70.  (Annotated) 

291.  Existing"  additional  insurance  upon 
property  unknown  to  the  one  issuing  a 
policy  thereon  avoids  the  latter  policy, 
which  provides  that  if  assured  now  has  or 
shall  hereafter  make  any  other  insurance 
on  the  property  without  assent  of  the  in- 
surer, the  policy  shall  be  void.  Carleton  v. 
Patrons'  Androscoggin  Mut.  F.  Ins.  Co.  39: 
951,  82  Atl.  649,  109  Me.  70. 

292.  The  insertion  by  an  insurance  agent 
who  has  failed  to  secure  all  the  insurance 
to  be  placed  on  a  building,  of  a  clause  in 
the  policy  issued  by  him  making  it  void  if 
additional  insurance  is  taken,  will  not  pre- 
vent recovery  on  the  policy  in  case  of  loss, 
although  the  intended  amount  was  placed 
with  other  companies.  Norfolk  F.  Ins. 
Corp.  v.  Wood,  39:  1020,  74  S.  E.  186,  113 
Va.  310. 

293.  An  application  for  additional  insur- 
ance will  not  avoid  a  policy  under  a  provi- 
sion therein  that  it  shall  be  void  if  assured 
shall  procure  any  other  contract  of  insur- 
ance, whether  valid  or  not,  on  the  property, 
if  both  the  owner  and  the  company  to  which 
the  application  for  additional  insurance  is 
made  understand  that  no  risk  is  assumed 
under  it.  Duncan  v.  National  Mut.  F.  Ins. 
Co.  20:  340,  98  Pac.  634,  44  Colo.  472. 

294.  Insurance  taken  out  by  a  mortgagee 
under  authority  of  the  mortgage  to  do  so 
if  the  mortgagor  fails  to  insure,  after  the 
mortgagor  had  secured  a  policy,  and  which 
the  mortgagee  promised  to  cancel  upon 
learning  the  facts,  does  not  avoid  the  policy 
of  the  mortgagor  under  a  provision  therein 
making  it  void  if  insured  shall  make  or 
procure  any  other  contract  of  insurance. 
Kelley  use  of  Chisholm  v.  People's  Nat.  F. 
Ins.  Co.  50:  1164,  104  N.  E.  188,  262  111.  158. 

295.  A  clause  in  a  fire  insurance  policy 
permitting  concurrent  insurance  will  cover 
policies  written  by  marine  insurance  com- 
panies upon  the  property  although  they 
render  the  insurer  liable  only  in  case  of 
total  loss,  and  the  method  of  adjustment  is 
different  from  that  of  fire  policies,  if  they 
are  concurrent  in  time  and  as  to  property 
Digest  1-52  L.R.A.(N.S.) 


covered.  Globe  &  Rutgers  F.  Ins.  Co.  v. 
Alaska-Portland  Packers'  Asso.  49:  374, 
205  Fed.  32,  123  C.  C.  A.  340.       (Annotated) 

f.  Severability. 

(See   also    same   heading   in   Digest    L.R.A. 
1-70. J 

296.  A  contract  of  fire  insurance  is  en- 
tire, and  the  increase  of  moral  hazard  due 
to  the  fact  that  the  insured  does  not  own 
the  land  upon  which  the  insured  building 
stands  affects  not  only  the  building,  but  the 
entire  property,  in  case  of  its  destruction 
by  fire.  Re  Millers'  &  M.  Ins.  Co.  4:  231, 
106  N.  W.  485,  97  Minn.  98. 

297.  An  insurance  policy  covering  differ- 
ent classes  of  property,  each  class  being  sep- 
arated from  the  others,  and  insured  for  a 
specific  amount,  is  separable,  and  recovery 
may  be  had  for  one  or  more  classes  without 
regard  to  the  other  items,  where  there  is  a 
breach  of  a  condition  of  the  contract  as  to 
one  class  of  property  insured,  provided  the 
contract  is  not  affected  by  any  question  of 
fraud,  act  condemned  by  public  policy,  or 
any  increase  in  the  risk  of  the  property  in- 
sured. Arkansas  Ins.  Co.  v.  Cox,  20:  775, 
98  Pac.  552,  21  Okla.  873. 

298.  Breach  of  warranty  of  title  in  an  in- 
surance policy  with  respect  to  the  building 
will  avoid  the  insurance  on  the  contents, 
although  building  and  contents  were  in- 
sured for  separate  amounts  for  an  entire 
premium,  where  the  risk  upon  both  items  is 
the  same.  Goorberg  v.  Western  Assur.  Co. 
10:  876,  89  Pac.  130,  150  Cal.  510. 

299.  A  policy  of  insurance  upon  a  build- 
ing and  contents,  which  is  void  as  to  build- 
ing because  of  the  existence  of  additional 
insurance  contrary  to  its  provisions,  is  void 
also  as  to  the  contents.  Carleton  v.  Pa- 
trons' Androscoggin  Mut.  F.  Ins.  Co.  39: 
951,  82  Atl.  649,  109  Me.  70. 

300.  That  the  amounts  of  insurance  on  a 
building  and  its  contents  are  separately 
stated  will  not  permit  a  recovery  for  loss 
on  the  building,  in  case  of  breach  of  the 
iron-safe  clause  as  to  its  contents,  where 
the  premium  is  entire  and  the  risk  on  build- 
ing and  contents  is  identical.  Coggins  v. 
^tna  Ins.  Co.  8:  839,  56  S.  E.  506,  144  N. 
C.  7. 

301.  A  policy  of  insurance  on  stock  and 
fixtures  is  indivisible,  so  that  if  it  is  ren- 
dered void  as  to  the  stock  by  the  failure 
to  keep  the  books  in  a  place  not  exposed  to 
fire  which  might  destroy  the  stock,  it  is 
void  as  to  the  fixtures  also.  Joffe  v.  Niag- 
ara F.  Ins.  Co.  51:  1047,  81  Atl.  281,  116 
Md.   155.  (Annotated) 

g.    Marine   insurance. 

See  supra,  265,  295. 

2.  In  life  or  accident  policies. 

a.  In  general. 

(See  also   same  heading  in  Digest  L.R.A. 
1-10.)  , 


1560 


INSURANCE,  III.  e,  2. 


Waiver  of  provisions  as  to,  see  infra,  V.  b. 

As  to  risks  and  causes  of  loss  or  injury, 
see  infra,  VI.  b,  2;  VI.  b,  3. 

Burden  of  pleading  and  proving  falsity  of 
answers  in  application,  see  Evidence, 
555,  55G. 

Question  for  jury  as  to  meaning  of  check 
mark  in  application,  see  Trial,  280. 

Materiality  of  statement  of  age  by  appli- 
cant, see  Trial,  648. 

See  also  supra,  44,  149-153. 

302.  The  language  of  a  question  in  an 
application  for  insurance  is  to  be  read  .in 
its  plain,  ordinary  and  natural  signification, 
and  if  there  is  any  ambiguity,  such  ambi- 
guity is  to  be  resolved  against  the  insurer 
who  framed  the  question  and  in  favor  of 
the  applicant.  Metropolitan  L.  Ins.  Co.  v. 
Montreal  Coal  &  Towing  Co.  1  B.  R.  C.  298, 
35  Can.  S.  C.  266.  Also  Reported  in  25 
Canadian  Law  Times  Occ.  N.  4. 

303.  A  statutory  provision  requiring  ap- 
plicants for  life  insurance  to  pass  a  satis- 
factory medical  examination  by  a  physician 
applies  to  applicants  for  burial  insurance. 
State  v.  VVillett,  23:  197,  86  N.  E.  68,  171 
Ind.  296. 

304.  In  construing  a  contract  of  insur- 
ance in  a  fraternal  beneficiary  association, 
for  the  purpose  of  determining  whether  the 
statements  made  in  the  written  application 
therefor  were  intended  to  be  representa- 
tions or  warranties,  the  court  will  take  in- 
to consideration  the  situation  of  the  parties, 
the  subject-matter,  and  the  language  era- 
ployed,  and  will  construe  a  statement  made 
therein  to  be  a  warranty  only  when  it 
clearly  appears  that  such  was  the  intention 
of  the  contracting  parties,  and  that  the 
mind  of  each  party  consciously  intended 
and  consented  that  such  should  be  the  in- 
terpretation of  his  statements.  Goff  v. 
Supreme  Lodge  Royal  Achates,  37:  1191, 
134  N.  W.  239,  90  Neb.  578. 

305.  Courts  will  never  construe  a  state- 
ment by  an  applicant  for  insurance  as  a  war- 
ranty unless  the  language  of  the  policy  is  so 
clear  as  to  preclude  any  other  construction. 
Spence  v.  Central  Acci.  Ins.  Co.  19:  88,  86  N. 
E.  104.  236  111.  444. 

306.  To  constitute  a  warranty,  a  represen- 
tation by  an  applicant  for  insurance  must 
.appear  in  the  contract  itself.  Spence  v.  Cen- 
tral Acci.  Ins.  Co.  19:  88,  86  N.  E.  104,  236 
111.  444. 

.307.  A  provision  in  a  life  insurance  policy, 
that  statements  are  warranted  to  be  full, 
complete,  and  true,  "without  suppression  of 
any  fact  or  circumstance  which  would  tend 
to  influence  the  company  in  issuing  a  pol- 
icy," makes  the  statements  and  agreements 
amount  to  representations  only.  Reppond 
v.  National  L.  Ins.  Co.  11:981,  101  S.  W. 
786,  100  Tex.  519.  (Annotated) 

308.  An  insurance  company  is  not  preclud- 
ed from  relying  on  breach  by  the  insured  of 
conditions  and  warranties  inserted  in  the 
policy  by  failure  to  attach  to  it  a  copy  of 
the  application,  which  is  not  referred  to  in 
the  policy,  although  thev  are  similar  to 
Digest  I-I52  I<.R.A.(N/S.) 


those  contained  in  the  application,  under 
a  statute  providing  that  omission  to  at- 
tach a  copy  of  the  application  to  the  policy 
will  preclude  the  company  from  alleging  or 
proving  any  such  application  or  represen- 
tations, or  falsity  thereof  or  any  parts  there- 
of, in  an  action  on  the  policy,  but  permits 
the  insured  to  plead  or  prove  the  applica- 
tion or  representation  at  his  pleasure.  Kirk- 
patrick  v.  London  Guarantee  &  Acci.  Co. 
19:  102,  115  N.  W.   1107,  139  Iowa,  370. 

(Annotated) 

309.  A  statutory  requirement  of  attach- 
ment of  an  application  for  insurance  to  the 
policy  is  satisfied  if  the  subdivision  of  a 
document  designated,  as  a  whole,  "proprr-al 
for  insurance,"  which  is  entitled  "applica- 
tion," is  so  attached,  where  all  material 
lortions  of  the  contract  are  incorporated  in 
such  application;  and  the  fact  that  the 
name  of  the  beneficiary  appears  only  in 
the  proposal,  and  is  not  attached  to  the 
policj',  is  immaterial,  si::ce  it  in  no  way 
affects  an  essential  element  of  the  con- 
tract upon  which  the  right  of  the  insurer 
to  avoid  it  depends.  Langdeau  v.  John  Han- 
cock Mut.  L.  Ins.  Co.  18:  1 190,  80  N.  E.  452, 
194   Mass.   56.  (Annotated) 

310.  Omission  to  mention  the  name  of  one 
of  the  attending  physicians  during  a  period 
of  illness  will  not  avoid  a  policy  of  life  in- 
surance, unless  the  omission  is  material, 
where  the  applicant  warrants  his  state- 
ments to  be  full,  complete,  and  true,  "with- 
out suppression  of  any  fact  or  circumstance 
which  would  tend  to  influence  the  company 
in  issuing  a  policy."  Reppond  v.  National 
L.  Ins.  Co.  11:  981,  101  S.  W.  786,  100  Tex. 
519. 

False  SLUSxreTs  or  concealment. 

As  to  occupation,  see  infra,  III.  e,  2,  c. 

As  to  health  or  habits,  see  infra.  III.  e,  2,  b. 

As  to  other  insurance  or  previous  applica- 
tions see  infra.  III.  e,  2,  d. 

As  to  family  history,  see  infra.  III.  e,  2,  e. 

Effect  of  incontestable  clause,  see  infra,  III. 
e,  2,  f. 

Waiver  or  estoppel  to  set  up,  see  infra,  V.  b. 

Necessity  of  returning  assessment  before 
canceling  benefit  certificates  for  false 
answers,  see  infra,  434-444. 

Presumption  and  burden  of  proof  as  to 
falsity  of  answers,  see  Evidence,  555. 

Evidence  as  to  manner  in  which  application 
for  life  insurance  was  prepared  to  estop 
company,  see  Evidence,  1944-1946. 

311.  An  incorrect  or  untrue  answer  in 
an  application  for  life  insurance  in  refer- 
ence to  matters  of  opinion  or  judgment  will 
not  avoid  the  policy  if  made  in  good  faith 
and  without  intention  to  deceive:  but  an 
untrue  answer  in  regard  to  matters  which 
are  shown  to  be  within  the  actual  knowl- 
edge of  the  applicant  and  are  material  to 
the  risk  will  avoid  the  policy.  Bryant  v. 
Modern  W^oodmen  of  America,  27:  326,  125 
N.  W.  621,  86  Neb.  372. 

312.  The  beneficiary  of  a  life  insurance 
policy  based  upon  a  warranty  as  to  the 
truthfulness  of  the  applicant's  answer  to 
questions  cannot  disaffirm  the  warranty  on 
the  ground  that  the  applicant  was  a  minor, 

v.«5,rij.#v.^.j    sea— £   i»9^iCL 


INSURANCE,  III.  e,  2. 


1561 


and  still  enforce  the  policy.  Metropolitan 
L.  Ins.  Co.  V.  Brubaker,  i8:  362,  Uli  Pac.  62, 
77  Kan.  699. 

313.  Untruth  of  answers  which  are  war- 
ranted to  be  true  in  an  application  for  life 
insurance  constitutes  a  breach  of  the  war- 
ranty, whetlier  the  insured  knew  of  their 
untruth  or  not.  National  Annuity  Asso.  v. 
McCall,  48:  418,  146  S.  W.  125,  103  Ark.  201. 

314.  Material  false  representations  in  an 
application  for  insurance  vitiate  the  bind- 
ing slip  4s  well  as  the  policy.  Gardner  v. 
North  State  L.  Ins.  Co.  48:' 714,  79  S.  E. 
806,  163  N.  C.  367. 

315.  An  applicant  for  insurance  who, 
after  producing,  at  the  request  of  the  agent, 
a  policy  written  previously,  from  which  an- 
swers to  the  questions  are  copied,  and,  upon 
being  told  that  the  application  is  prepared 
according  to  the  rules  and  regulations  of 
the  association,  signs  it,  cannot  be  charged 
with  bad  faith  merely  because  some  of  the 
answers  are  untrue  at  the  time  of  the  sig- 
nature. Roe  V.  National  L.  Ins.  Asso.  17: 
1 144,  115  N.  VV.  500,  137  Iowa,  696. 

316.  If  an  applicant  for  a  life  insurance 
policy  warrants  in  his  application  that  his 
answers  to  the  medical  examiner,  on  the 
reverse  side  of  the  application,  are  "true 
and  accurate,"  and  that  they  constitute  the 
basis  for  the  covenant,  such  answers  become 
warranties,  where  the  policy  recites  that  it 
is  executed  in  consideration  of  the  warran- 
ties made  in  the  application,  and  that  the 
application  shall  be  a  part  of  the  covenant; 
and  a  false  statement  made  therein  by  the 
applicant  renders  the  policy  void.  Eminent 
Household  of  C.  W.  v.  Prater,  23:  917,  103 
Pac.  558,  24  Okla.  214. 

317.  False  statements  in  an  application 
for  life  insurance  will  not  defeat  liability 
on  the  policy  on  the  theory  that  they  mis- 
led the  medical  examiner,  where  he  testifies 
that  he  made  his  report  on  his  own  examina- 
tion, and  paid  no  attention  to  such  answers. 
Roe  V.  National  L.  Ins.  Asso.  17:  1144, 
115  N.  W.  500,  137  Iowa,  696. 

318.  Denial  in  an  application  for  life  in- 
surance of  intimate  association  with  anyone 
suffering  from  any  transmissible  disease 
within  a  year  avoids  the  policy  if  the  ap- 
plicant had  within  that  time  nursed  mem- 
bers of  his  family  ill  with  typhoid  fever. 
Gardner  v.  North  State  L.  Ins.  Co.  48:  714, 
79  S.  E.  806,  163  N.  C.  367.         (Annotated) 

319.  A  statement  of  relationship  in  a 
nomination  of  beneficiary  of  a  mutual  bene- 
fit certificate  is  not  a  warranty  which  will 
avoid  the  certificate  in  case  the  relationship 
proves  to  be  untrue.  Cunat  v.  Supreme 
Tribe  of  Ben  Hur,  34:  1192,  94  N.  E.  925, 
249  111.  448. 

320.  A  misrepresentation  as  to  relation- 
ship of  the  beneficiary  in  an  application 
for  a  mutual  benefit  certificate  will  not 
avoid  the  contract  if  the  beneficiary  was 
eligible  in  his  true  relationship.  Goff  v. 
Supreme  Lodge  Royal  Achates,  37:  1191, 
134  N.  W.  239,  90  Neb.  578. 

321.  An  imtrue  answer  written  by  the 
medical  examiner  that  an  applicant  for  in- 
surance was  not  at  the  time  pregnant,  al- 
Digea*  1-52  I^R.A.(N.S.) 


though  his  deduction  from  her  answers  and 
believed  by  her  to  be  true,  will  avoid  the 
policy  where  applicant,  in  the  application, 
warrants  the  answers  to  be  true,  and  de- 
clares that  the  answers  as  written  by  the 
examiner  are  as  given  by  her.  Supreme 
Lodg*  K.  L.  of  H.  V.  Payne,  15:  1277,  108 
S.   W.   1160,   101   Tex.  449.  (Annotated) 

—  as  to   age. 
Effect  of  incontestable  clause,  see  infra,  373, 

372. 
Waiver  or  estoppel  as  to,  see  infra,  536,  546. 

322.  A  misstatement  of  his  age  by  an  ap- 
plicant for  insurance  in  a  benefit  society  is 
material  as  a  matter  of  law,  and  renders  the 
beneficiary  certificate  issued  to  him  void  ab 
initio,  where  at  the  tim.e  of  the  application 
he  was  beyond  the  age  at  which  the  laws  of 
the  society  permitted  members  to  be  re- 
ceived, but  stated  that  he  wac  younger. 
Taylor  v.  Grand  Lodge  A.  0.  U.  W.  3:  114, 
105  N.  W.  408,  96  Minn.  441.     ' 

323.  A  statement  in  an  accident  insurance 
policy  that,  in  consideration  of  the  warran- 
ties and  agreements  in  the  application,  the 
applicant  is  insured,  does  not  make  the  ap- 
plication a  part  of  the  contract,  so  as  to 
render  a  statement  in  it  as  to  the  age  of  the 
applicant  a  warranty.  Spence  v.  Central 
Acci.  Ins.  Co.  19:  88,  86  N.  E.  104,  236  111. 
444.  (Annotated) 

324.  Forfeiture  for  untrue  statements  ac- 
cording to  the  terms  of  the  contract  occurs 
where  the  age  of  the  applicant  for  member- 
ship in  a  mutual  benefit  society  was,  with- 
out the  knowledge  of  the  applicant,  falsely 
stated  in  the  certificate  after  he  had  stated 
his  true  age,  where  he  knew  that,  to  secure 
admission,  the  age  must  be  stated  falsely, 
or  some  other  fraud  perpetrated  on  the  so- 
ciety. Elliott  V.  Knights  of  Modern  Macca- 
bees, 13:  856,  89  Pac.  929,  46  Wash.  320. 

b.   Health  and  habits. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of  incontestable  clause,  see  infra,  365. 

Review  of  finding  of  trial  court  that  hemor- 
rhage did  not  constitute  a  serious  ill- 
ness, see  Appeal  and  Error,  994. 

Evidence  on  question  of  false  representa- 
tions, see  Evidence,  1667,  1668. 

Sufficiency  of  pleading  to  admit  evidence, 
see  Evidence,  2428. 

Evidence  as  to  what  weight  might  have  been 
given  by  physicians  generally  to  an- 
swers in  application,  see  Evidence, 
1945. 

Evidence  of  examining  physician  as  to  ef- 
fect of  knowledge  that  insured's  physi- 
cian thought  he  had  heart  disease,  see 
Evidence,  1946. 

Imputing  agent's  knowledge  of  falsity  ol 
representations  to  insured,  see  Notice, 
46. 

Sufficiency  of  plea  to  raise  question  of 
breach  of  warranty  by  applicant  as  to 
health,  see  Pleading,  520. 

Question  for  jury  as  to  breach  of  warranty, 
see  Trial,  237. 


15G2 


INSURANCE,  III.  e,  2. 


Question    for    jury    as    to    trutli fulness    of 

statements,  see  'iitiAL,  647. 
See  also  supra,  318. 

325.  Warranties  as  to  sound  health  and 
medical  attention  in  an  accident  insurance 
policy  which  has  been  renewed  from*  time 
to  time  for  a  period  of  years  without  the 
presentation  of  a  new  application  referred 
to  the  date  of  the  original  application,  and 
not  to  that  of  the  last  renewal.  Fidelity 
&  C.  Co.  V.  Meyer,  44:  493,  152  S.  W.  995, 
106  Ark.  91. 

326.  The  falsity  of  statements  made  in 
a  health  certificate  which  an  applicant  for 
an  increase  of  benefit  insurance  was  re- 
quired to  furnish  is  available  to  defeat 
recovery  of  the  insurance, — especially  where 
the  applicant  agreed  in  the  health  certifi- 
cate that  it  and  his  application,  together 
with  the  laws  of  the  order,  should  constitute 
the  contract.  Knights  of  Maccabees  v. 
Shields,  49:  853,  160  S.  W.  1043,  156  Ky. 
270. 

327.  It  is  not  necessary  in  order  to  de- 
feat recovery  on  a  benefit  certificate  by  rea- 
son of  the  falsity  of  the  applicant's  state- 
ments material  to  the  risk,  that  he  was  in 
good  health,  and  not  diseased,  that  the  ap- 
plicant should  have  known  that  he  was  in 
fact  diseased.  Knights  of  Maccabees  v. 
Shields,  49:  853,  160  S.  W.  1043,  156  Ky. 
270. 

328.  Where  the  applicant  for  life  insur- 
nnee  certifies  that  his  health  is  good  accord- 
ing to  the  best  of  his  knowledge  and  belief, 
a  recovery  may  be  had,  on  the  death  of  the 
assured,  if  it  appear  that  he  had  reason  to 
believe,  and  did  believe,  that  at  the  time  he 
was  in  good  health,  although  it  subsequent- 
ly develops  that  this  was  not  in  fact  his 
condition,  for  his  statement  was  not  un- 
qualified, but  only  to  the  extent  of  his 
knowledge  and  belief.  Smith  v.  Prudential 
Ills.  Co.  (N.  J.  Err.  &  App.)  43:  431,  85  Atl. 
190,  83  N.  J.  L.  719.  (Annotated) 

329.  A  warranty  of  freedom  from  bodily 
infirmity,  in  an  application  for  accident  in- 
surance, includes  only  an  ailment  or  dis- 
order of  a  somewhat  established  or  settled 
character,  and  not  merely  a  temporary  dis- 
order arising  from  a  sudden  and  unexpected 
derangement  of  the  system.  French  v.  Fi- 
delity &  C.  Co.  17:  loii,  115  N.  W.  869,  135 
Wis.  259. 

330.  The  term  "serious  illness,"  as  used  in 
an  application  for  a  life  insurance  policy, 
means  such  an  illness  as  permanently  or 
materially  impairs,  or  is  likely  permanently 
or  materially  to  impair,  the  health  of  the 
applicant.  Eminent  Household  of  C.  W.  v. 
Prater,  23:  917,  103  Pac.  558,  24  Okla.  214. 

331.  The  seriousness  of  an  illness  is  a 
question  of  fact,  and  where,  upon  an  ap- 
plication for  insurance,-  the  correctness  of 
the  answers  in  which  is  affirmed  to  be  true 
to  the  best  of  the  applicant's  knowledge  and 
belief,  the  applicant  in  good  faith  states 
that  he  has  had  no  serious  illness  or  dis- 
ease, wlien  in  fact  he  has  had  three  attacks 
of  pneumonia,  of  one  of  which  he  informs 
the  medical  examiner  for  the  insurance  corn- 
Digest  1-52  I..R.A.(N.S.) 


pany  at  the  time  of  his  examination,  there 
is  no  ground  for  a  forfeiture  of  the  policy. 
Smith  V.  Prudential  Ins.  Co.  (N.  J.  Err.  '& 
App.)   43:  431,  85  Atl.  190,  83  N.  J.  L.  719. 

332.  That  an  applicant  for  life  insur- 
ance is  not  asked  as  to  a  particular  disease 
with  which  she  is  afflicted  or  as  to  the 
physician  who  attended  her,  will  not  per- 
mit enforcement  of  the  policy,  notwithstand- 
ing she  died  of  such  disease,  where  she  af- 
firmed in  the  application  that  she  was  in 
sound  health,  and  had  never  been  seriously 
ill,  and  the  policy  and  application  both  pro- 
vide that  no  liability  shall  be  incurred  by 
the  company  unless  the  policy  is  delivered 
while  assured  is  in  good  health.  Haapa  v. 
Metropolitan  L.  Ins.  Co.  16:  1165,  114  N. 
W.  380,  150  Mich.  467. 

333.  A  local  affection  is  not  a  local  dis- 
ease within  the  meaning  of  a  warranty  in 
a  policy  of  insurance,  unless  such  aff"ection 
has  sufficiently  developed  to  have  some  bear- 
ing on  the  general  health.  Cady  v.  Fidelity 
&  C.  Co.  17:  260,  113  N.  W.  967,  134  Wis. 
322. 

334.  The  phrase  "spitting  or  coughing  of 
blood,"  as  used  in  a  question  propounded  by 
a  medical  examiner  to  an  applicant  for  a 
life  insurance  policy,  as  to  whether  she  ever 
had  "spitting  or  coughing  of  blood,"  means 
the  disorder  so  called,  whether  the  blood 
comes  from  the  lungs  or  from  the  stomach. 
Eminent  Household  of  C.  W.  v.  Prater,  23: 
917,  103  Pac.  558,  24  Okla.  214.  (Annotated) 

335.  That  a  post  mortem  examination  of 
an  insured  who  died  suddenly  eight  days 
after .  the  issuance  of  the  policy  showed  a 
blood  clot  in  the  heart  and  evidence  of 
pleurisy  does  not  show  breach  of  a  warranty 
that  applicant  was  to  the  best  of  his  knowl- 
edge and  belief  in  sound  health  and  physi- 
cal condition,  that  his  answers  to  questions 
were  literally  true,  that  an  untrue  state- 
ment or  concealment  of  facts  intentional 
or  otherwise  would  avoid  the  policy,  and 
that  he  had  never  had  pleurisy,  pneumonia, 
or  disease  of  the  heart,  in  the  absence  of 
anything  to  show  that  applicant  knew  of 
such  conditions.  Lakka  v.  Modern  Brother- 
hood, 49:  go2,  143  N.  W.  513,  163  Iowa,  159. 

336.  A  negative  answer  to  a  question  in 
an  application  for  insurance  the  answers  in 
which  are  made  warranties,  as  to  having 
had  la  grippe,  will  avoid  the  policy  where 
it  appears  that  the  applicant  had  had  such 
disease,  although  it  was  a  very  light  attack 
and  may  have  had  nothing  to  do  with  his 
death.  Beard  v.  Royal  Neighbors  of  Ameri- 
ca, 19:  798,  99  Pac.  83,  53  Or.   102. 

337.  A  warranty  that  an  applicant  for  ac- 
cident insurance  has  never  had  bronchitis 
does  not  refer  to  a  temporary  acute  attack 
of  the  disease,  followed  by  complete  recov- 
ery. French  v.  Fidelity  &  C.  Co.  17:1011,  115 
N.  W.  869,  135  Wis.  259. 

338.  Consultation  by  an  applicant  for  in- 
surance with  a  physician,  within  the  mean- 
ing of  a  question  in  the  application,  is 
shown  by  the  fact  that  her  husband  notified 
the  physician  that  she  was  indisposed  and 
asked  him  to  attend  her,  and  that,  upon  his 
arrival   at    the    house,   she   advised    him   of 


INSURANCE,  III.  e,  2. 


1568 


lier  symptoms  and  received  aid  from  him. 
Beard  v.  Royal  Neighbors  of  America,  19: 
798,  99  Pac.  83,  53  Or.  102. 

339.  A  question  in  an  application  for  life 
insurance,  "How  long  since  you  were  at- 
tended by  a  physician,  or  professionally 
consulted  one?"  means  not  when  a  physi- 
cian was  first  consulted,  but  when  he  was 
last  consulted.  Crosse  v.  Supreme  Lodge, 
K.  &  L.  of  H.  45:  162,  98  N.  E.  261,  254  111. 
SO.  { Annotated  ^ 

340.  Questions  in  an  application  for  in- 
surance as  to  time  since  a  physician  was 
consulted,  the  disease,  the  name  of  the 
physician,  and  the  present  state  of  health, 
are  material,  so  that,  if  the  answers  are 
warranted  to  be  true,  their  falsity  will  pre- 
vent recovery  on  the  policy.  Crosse  v. 
Supreme  Lodge,  K.  &  L.  of  H.  45:  162,  93 
N.  E.  261,  254  111.  80. 

341.  If  an  applicant  for  life  insurance 
warrants  the  truthfulness  of  his  answer  to 
the  question,  "Have  you  consulted  any 
other  physician?"  and  agrees  that  the  poli- 
cy issued  in  consideration  of  the  warranty 
shall  be  void  if  the  answer  be  false,  the 
liability  of  the  insurer  depends  upon  the 
truthfulness  of  the  answer.  Metropolitan 
L.  Ins.  Co.  V.  Brubaker,  18:  362,  96  Pac.  62, 
77  Kan.  599. 

342.  An  applicant  for  life  insurance  who, 
for  motives  of  his  own,  has  sought  and  ob- 
tained a  professional  interview  with  a  phy- 
sician regarding  the  state  of  his  health,  can- 
not truthfully  answer  the  question,  "Have 
you  consulted  any  ('her  physician?"  in  the 
negative,  merely  because  the  interview  con- 
cerned some  temporary  ailment  or  indis- 
position, slight  in  character,  and  not  seri- 
ously affecting  health.  Metropolitan  L. 
Ins.   Co.   V.   Brubaker,   18:  362,   96   Pac.   62, 

77  Kan.  599.  (Annotated) 

Policy   on   life   of  married  xeoman. 
Waiver  of  representation  as  to  pregnancy, 

see  infra,   593,  594. 
See  also  supra,  321. 

343.  An  agreement  or  stipulation  in  a  con- 
tract of  fraternal  insurance  with  a  married 
woman,  that  the  policy  shall  not  take  ef- 
fect unless  delivered  to  her  "while  in 
sound  health,"  is  not  violated  by  reason  of 
the  applicant  being  pregnant  at  the  time 
of  the  delivery  of  the  policy.  Rasicot  v. 
Royal  Neighbors  of  America,  29:  433,  108 
Pac.  1048,  18  Idaho,  85. 

344.  Confinement  in  childbirth  is  not  a 
^'personal  ailment,"  within  the  meaning  of 
a  fraternal  benefit  certificate,  so  as  to  avoid 
it  because  of  a  negative  answer,  which  was 
made  a  warranty,  as  to  whether  the  appli- 
cant had,  within  seven  years,  consulted  a 
physician  in  regard  to  personal  ailment, 
where  in  fact  the  applicant  had  been  attend- 
ed once  by  a  physician  during  confinement, 
some  three  years  prior  thereto.  Rasicot 
V.  Royal  Neighbors  of  America,  29:  433,  108 
Pac.   1048,   18  Idaho,   85. 

345.  A  negative  answer  to  a  question  in 
an  application  for  insurance,  the  answers 
in  which  are  made  warranties,  as  to  wlietli- 
er  the  applicant  was  then  pregna!'.t,  will 
Digest   1-52  L.R,A.(N.S.) 


not  avoid  the  policy,  where  it  appears  that 
the  applicant  did  not  know  of  her  pregnancy 
at  the  time,  that  her  answer  was  in  good 
faith  and  honestly  made,  and  that  her  preg- 
nancy at  the  time  cf  the  issuance  of  the 
policy  in  no  way  contributed  to  the  ultimate 
cause  of  death,  nor  inci'eased  the  risk. 
Rasicot  V.  Royal  Neighbors  of  America, 
29:  433,  108  Pac.  1048,  18  Idaho,  85. 

346.  A  married  woman  applying  for  life 
insurance  in  a  fraternal  benefit  society  that 
issues  policies  on  the  lives  of  married  wom- 
en is  not  required  to  inform  the  society  of 
evidence  of  pregnancy  discovered  subse- 
quently to  her  application  and  physical  ex- 
amination. Merriman  v.  Grand  Lodge  D.  of 
H.  8:  983,  110  N.  W.  302,  77  Neb.  544. 

(Annotated) 

347.  That  a  married  woman  holding  a 
policy  of  life  insurance  signs  a  certificata 
when  she  is  pregnant,  stating  that  she  is  in 
sound  bodily  health,  is  not  such  a  false 
representation  as  will  invalidate  the  pol- 
icy, if  the  certificate  is  otherwise  true.  Mer- 
riman V.  Grand  Lodge  D.  of  H.  8:  983,  110 
N.  W.  302,  77  Neb.  544. 

348.  A  man  who  procures  his  wife  to  in- 
sure her  life  for  his  benefit  cannot  take  ad- 
vantage of  her  ignorance  of  a  physical  con- 
dition making  her  uninsurable,  of  which  he 
knows,  to  justify  answers  in  the  application 
which,  if  made  by  her  with  knowledge  of 
her  true  condition,  would  have  rendered 
the  policy  void.  Gamble  v.  Metropolitan 
L.  Ins.  Co.  41:  1 199,  75  S.  E.  788,  92  S.  C. 
451.  (Annotated) 
Habits. 

Opinion  evidence  as  to  intemperance  of  in- 
sured, see  Evidence,  1095. 

Evidence  of  plea  of  guilty  to  charge  of 
drunkenness,  to  show  misrepresentation 
as  to  habits,  see  Evidence,  1543. 

Evidence  of  reputation  as  to  habits,  see 
Evidence,  1559. 

Permitting  large  number  of  witnesses  to  tes- 
tify as  to  temperance  of  insured,  see 
Trial,  30. 

349.  A  condition  in  a  fraternal  benefit 
certificate,  that  all  payments  made  and  all 
rights  accrued  thereunder  shall  be  forfeited, 
and  that  the  certificate  shall  be  void  if  the 
member  becomes  so  intemperate  in  the  use 
of  drugs  or  alcoholic  liquors  as  permanently 
to  impair  his  health  or  to  produce  delirium 
tremens,  is  self-executing.  Modern  Wood- 
men of  America  v.  Breckenridge,  10:  136, 
89  Pac.  661,  75  Kan.  373. 

350.  The  expression  "intemperate  use  of 
intoxicating  liquors,"  in  a  contract  of  in- 
surance, means  such  an  indulgence  in  in- 
toxicants as  tends  to  impair  the  health  of 
the  insured,  or  render  the  insurance  risk 
more  hazardous.  O'Connor  v.  Modern  Wood- 
men of  America,  25:  1244,  124  N.  W.  454, 
110  Minn.  18. 

351.  A  benefit  certificate  is  not  vitiated, 
in  the  absence  of  fraud  or  intentional  con- 
cealment, by  the  answer  "When  I  come  to 
town,— beer"  to  the  question,  "If  you  use 
intoxicants  at  all,  state  kind  and  quantity 
consumed,"  where  question  and  answer  were 
by  the  certificate  made  a  part  thereof  and 


1564 


INSURANCE,  III.  e,  2. 


it  was  provided  that,  if  such  information 
was  not  literally  true  in  every  respect,  the 
benefit  certificate  would  be  void,  although 
the  applicant  was  in  the  habit  of  drinking 
both  beer  and  whisky^  as  the  answer  was 
truthful  so  far  as  responsive  and  was  suf- 
ficient to  inform  the  society  that  the  ap- 
plicant to  some  eytent  was  in  the  habit  of 
drinking  intoxicants.  O'Connor  v.  Modern 
Woodmen  of  America,  25:  1244,  124  N.  W. 
454,   110  Minn.   18. 

352.  Evidence  that  insured  used  whisky 
to  some  extent  does  not  show  a  breach  of 
warranty  in  answering  a  question  in  an 
application  for  insurance:  "Do  you  use 
either  malt  or  spirituous  liquors  daily  or 
nearly  every  day?" — that  he  used  a  glass 
of  beer  occasionally;  and  a  question:  "If 
so,  what  is  used  and  the  approximate 
amounts?"  Answer  explicitly, — by  answer- 
ing, "beer."  Lakka  v.  Modern  Brotherhood, 
49:  902,  143  N.  W.  513,  163  Iowa,  159. 


c.   Occupation. 


(See  also   same  heading  in  Digest   L.R.A. 
1-10.) 


Provision  in  by-law  as  to  engaging  in  manu- 
facture or  sale  of  liquor,  see  supra,  106. 

353.  An  administrator  of  the  keeper  of  a 
saloon  who  renews  the  license  in  his  own 
name,  and  continues  the  business  through 
employees  for  the  benefit  of  the  estate,  is  an 
agent  within  the  meaning  of  a  provision  in 
a  benefit  certificate  denying  the  right  to 
benefits  to  every  person  engaged  in  the  sale 
of  liquors  either  as  proprietor  or  agent. 
National  Council  J.  0.  U.  A.  M.  v.  Thomp- 
son, 45:  1 148,  156  S.  W.  132,  153  Ky.  636. 

354.  Tliat  during  the  first  year  of  the  life 
of  an  insurance  policy  insured  engaged  in  a 
business  which  he  is  prohibited  from  en- 
gaging in  for  a  year  does  not  prevent  re- 
covery on  the  policy  for  loss  resulting  after 
the  expiration  of  the  year,  if  engaging  in 
that  business  during  the  prohibited  time 
did  not  contribute  to  the  loss.  Edmonds 
V.  Mutual  L.  Ins.  Co.  50:  592,  144  N.  W. 
718,  33  S.  D.  55.  (Annotated) 

355.  A  provision  of  an  accident  policy, 
that  if  insured  change  his  business  or  vo- 
cation, he  must  immediately  notify  the  sec- 
retary of  the  company  thereof,  and  that 
unless  the  board  of  directors  consent  to  the 
change  the  policy  shall  terminate  upon  the 
tenth  day  thereafter,  does  not  require  no- 
tice of  a  casual  or  incidental  resort  to 
other  activities  for  thirty  days,  when  the 
vocation  described  in  the  policy  is  not 
abandoned,  and  the  insured  expects  within 
a  few  days  to  continue  his  usual  vocation, 
as  the  phange  referred  to  means  the  substi- 
tution of  one  business  or  vocation  for  an- 
other as  the  usual  business  or  vocation  of 
the  insured.  Taylor  v.  Illinois  Commercial 
Men's  Asso.  24:  1174,  122  N.  W.  41,  84  Neb. 
799.  (Annotated) 
Digest  1-52  i:,.R.A.(N.S.) 


d.  Other  insurance;  previous 
applications. 

(See   also   same  heading   in  Digest   L.R.A. 
1-10.) 

Other  insurance. 

Other  insurance,  on  property,  see  supra.  III. 

e,  1,  e. 
Waiver  of  provision  as  to  other  insurance, 

see  infra,  583. 

356.  Failure  to  disclose  policies  insuring 
against  death  or  injury  or  from  accident,  in 
response  to  questions  in  an  application  for 
life  insurance  as  to  the  amount  of  insurance 
carried  by  the  applicant  on  his  life,  and 
whether  he  had  any  other  insurance  in 
force  on  his  life,  does  not  constitute  a  breach 
of  warranty  of  the  truth  of  the  statements 
made  in  such  application.  Metropolitan  L. 
Ins.  Co.  V.  Montreal  Coal  &  Towing  Co.  1 
B.  R.  C.  298,  35  Can.  S.  0.  266.  Also  Re- 
ported in  25  Canadian  Law  Times  Occ.  N.  4. 

(Annotated.) 
Previous  applications. 
As    ground    for    cancelation    of    policy,    see 

supra,  153. 
Question  for  jury  as  to  intent  of  applicant 

in  making  statement  as  to,  see  Trial, 

308. 

357.  Where  a  person  in  good  faith  ap- 
plies to  an  insurance  company  for  insur- 
ance, and  in  the  application  states  that 
there  is  no  application  for  insurance  pend- 
ing in  another  company,  and  subsequent  to 
the  application  and  prior  to  the  issuance 
of  the  policy  thereon,  application  for  in- 
surance is  made  to  another  company  without 
informing  the  first  company,  the  policy  sub- 
sequently issued  by  the  first  company  is  not 
avoided  thereby,  where  it  contains  no  re- 
quirement that  the  condition  that  no  appli- 
cation to  another  company  is  pending  should 
continue  until  the  policy  is  issued.  Smith 
V.  Prudential  Ins.  Co.  (N.  J.  Err.  &  App.) 
43:  431,  85  Atl.  190,  83  N.  J.  L.  719. 

358.  A  printed  statement  in  an  applica- 
tion for  accident  insurance  making  the  ap- 
plicant assert  that  no  application  made  by 
him  for  insurance  had  been  declined,  and 
no  accident,  disease,  or  health  policy  had 
been  canceled  or  renewal  lefused,  does  not 
include  life  policies,  where  the  word  "pol- 
icy" is  uniformly  used  elsewlicre  in  the  ap- 
plication as  referring  to  acci<li'nt  or  health 
policies.  Mays  v.  New  Amsterdam  Casual- 
ty  Co.  46:1108,  40  App.  D.  C.  24). 

359.  False  denial  by  an  applicant  for 
life  insurance,  of  rejection  by  other  com- 
panies, avoids  the  policy  as  matter  of  law, 
if  it  would  not  have  been  issued  had  the 
insurer  known  of  such  rejection,  altliough 
the  statute  provides  that  no  misrepresenta- 
tion shall  prevent  a  recovery  on  the  policy 
unless  material  and  fraudulent.  Masonic 
L.  Asso.  v.  Robinson,  41:  505,  147  S.  W. 
882,    149   Ky.    80. 

360.  A  beneficial  association  issuing  death 
benefit  certificates  is  not  within  the  mean- 
ing of  a  question  in  au  insurance  application 
as  to  whether  or  not  applicant  has  ever  been 


INSURANCE,  III.  f,  1. 


1565 


rejected  by  any  company.     Lvon   v.  United 
Moderns,  4:  247,  83  Pac'  804,' 148  Cal.  470. 

(Annotated) 

361.  Rejection  by  a  life  insurance  com- 
pany is  not  within  the  scope  of  a  question 
in  an  application  for  a  health  and  accident 
policy,  as  to  whether  or  not  any  company, 
society,  or  association  ever  rejected  appli- 
cant's application,  canceled  his  policy,  or 
declined  to  renew  the  same,  or  refused  com- 
pensation for  disability,  and  therefore  a 
false  statement  with  reference  thereto  will 
not  avoid  accident  policy.  Wright  v.  Fra- 
ternities Health  &  Acci.  Asso.  32:  461,  78 
Atl.  475,  107  Me.  418.  (Annotated) 

e.  Family  history. 

(See  also   same   heading   in  Digest   L.R.A. 
1-10.) 

362.  An  inquiry  made  of  an  applicant  for 
insurance,  as  to  the  cause  of  his  father's 
death,  calls,  not  for  a  definite  statement  of 
fact,  but  for  the  bona  fide  belief  and  opin- 
ion of  the  applicant.  Gilroy  v.  Supreme 
Court  I.  O.  O.  F.  (N.  J.  Err.  &  App.)  14: 
632,  67  Atl.  1037,  75  N.  J.  L.  584. 

f.  Incontestability. 

(See   also   same   heading   in  Digest   L.R.A, 
1-10.) 

363.  A  provision  m  a  life  insurance 
policy,  that  it  shall  be  incontestable  from 
its  date,  is  void  as  against  public  policy, 
so  far  as  it  includes  fraud  in  procuring  the 
policy.  Reagan  v.  Union  Mut.  L.  Ins.  Co. 
2:  821,  76  N.  E.  217,  189  Mass.  555. 

(Annotated) 

364.  An  incontestable  clause  in  an  insur- 
ance policy  does  not  prevent  the  insurer 
from  resisting  payment  on  the  ground  that 
it  was  issued  to  one  having  no  insurable 
interest,  and  is  therefore  void  as  against 
public  policy.  Bromley  v.  Washington  L. 
Ins.  Co.  5:  747,  92  S.  W.  17,  122  Ky.  402. 

(Annotated) 

365.  A  provision  in  an  insurance  policy 
that,  if  the  policy  shall  have  been  in  con- 
tinuous force  for  three  years,  it  shall  there- 
after be  incontestable,  cannot  be  held  to  be 
inapplicable  to  a  policy  delivered  when  the 
insured  was  not  in  good  health,  on  the  theory 
that  because  the  policy  provided  that  \i 
should  not  take  effect  until  delivered  while 
the  insured  was  in  good  health,  it  never  was 
in  force.  Mutual  Reserve  Fund  L.  Asso.  v. 
Austin,  6:  1064,  142  Fed.  398,  73  C.  C.  A. 
498.  (Annotated) 

366.  A  provision  that,  after  payment  of 
a  certain  number  of  premiums,  an  insurance 
policy  shall  become  incontestable,  does  not 
»pply  to  contests  for  failiue  to  pay  pre- 
miums. Thompson  v.  Fidelity  ATut.  L.  Ina 
Co.  6:  X039,  92  S.  W.  1098,  116  Tenn.  557. 

( Annotated ) 

367.  A  provision  in  a  life  insurance  pol- 
icy that  it  shall  be  incontestable  after  one 
year  applies  to  proceedings  taken  to  secure 
reinstatement  after  default  in  payment  of 
Digest   1-52  L.R.A.(N.S.) 


premiums,  so  that  after  the  lapse  of  a  year 
from  reinstatement  the  policy  cannot  be 
avoided  for  fraud  in  securing  it,  although 
insured  agrees  in  his  application  for  re- 
instatement that  the  policy  shall  be  void 
if  any  statement  is  untrue.  Great  West- 
ern. L.  Ins.  Co.  V.  Suavely,  46:1056,  206 
Fed.  20,  124  C.  C.  A.  154.  (Annotated) 

368.  False  answers  in  an  application  for 
insurance  which  are  warranted  to  be  true 
will  not  avoid  the  policy  after  it  has  by  it* 
terms  become  incontestable.  Indiana  Nat. 
L.  Ins.  Co.  V.  McGinnis,  45:  192,  101  N.  E, 
289,  180  Ind.  9. 

369.  A  statute  prescribing  a  period  in 
which  relief  can  be  obtained  from  contracts 
secured  by  fraud  has  no  effect  upon  an  in- 
contestable clause  in  a  life  insurance  pol- 
icy, although  such  clause  makes  the  policy 
incontestable  in  a  much  shorter  time  than 
the  statute  allows  for  obtaining  relief  from 
a  fraudulent  contract.  Citizens'  L.  Ins.  Co. 
V.  McClure,  27:  1026,  127  S.  W.  749,  138  Ky. 
138. 

370.  Retention  of  a  life  insurance  policy 
issued  without  application,  which  contains 
provisions  that  it  shall  be  void  if,  at  the 
date  of  its  delivery,  insured  is  not  in  good 
health,  or  if  he  has  been  rejected  by  other 
insurers,  has  been  attended  by  a  physician, 
or  has  had  certain  diseases,  by  one  within 
the  operation  of  such  provisions,  is  not 
such  fraud  as  will  prevent  the  operation 
of  a  clause  in  the  policy  making  it  incon- 
testable from  date  except  for  fraud.  Inde- 
pendent L.  Ins.  Co.  V.  Rider,  42:  560,  150 
S.  W.  649,  150  Ky.  505.  . 
Statements  as   to   age.  '^P    ^''" 

371.  Misrepresentation  by  the  beneficiary 
in  making  proof  of  death  as  to  the  age  of 
the  insured  will  not  defeat  his  rights  under 
a  policy  that  is  incontestable  by  reason  of 
the  fact  that  the  prescriptive  period  hag 
elapsed.  Mutual  Life  Ins.  Co.  v.  New,  27; 
431,  51  So.  61,  125  La.  41. 

372.  A  clause  making  a  life  insurance 
policy  incontestable  after  two  years  if  the 
premiums  have  been  paid  does  not  avoid  a 
clause  providing  for  an  equitable  readjust- 
ment of  the  benefit  in  case  of  a  misstate- 
ment of  the  age  of  the  insured,  as  both 
clauses  are  general,  the  former  being  mere- 
ly an  agreed  term  of  prescription  between 
the  insurer  and  the  insured.  Mutual  Life 
Ins.  Co.  V.  New,  27:  431,  51  So.  61,  125  La. 
41. 

/.  Forfeiture. 

1.  In  general. 

(See   also   same   heading   in  Di^st   L.R.A. 

1-10.) . 

Provisions  of  by-laws  as  to,  see  supra,  103. 
Forfeiture  for  breach  of  warranty,  see  supra, 

III.  e. 
Reinstatement,  see  infra.  III.  g. 
Waiver  respecting,  see  infra,  V.  b. 
By  voluntary  exposure  or  increased  hazard, 

see  infra,  VI.  b,  3,  f. 
By  obtaining  divorce,  see  infra,  829-831. 


1566 


INSURANCE,  III.  f,  2. 


Raising  question  of  nonforfeiture  for  first 
time  on  appeal,  see  Appeal  and  Error, 
745. 

Expulsion  from  benevolent  societies  general- 
ly, see  Benevolent  SocrETiEs,  IV. 

Contract  imposing  conditions  on  right  to 
paid-up  policy  in  case  of  forfeiture,  .see 
Contracts,  443. 

Evidence  to  rebut  proof  of  breach  of  con- 
dition, see  Evidence,  1923, 

373.  Failure  for  more  than  two  years  to 
make  an  attempt  to  secure  relief  from  what 
is  alleged  to  be  an  irregular  forfeiture  of  a 
mutual  benefit  certificate,  or  to  tender  dues 
and  assessments  thereon,  will  be  regarded  as 
an  acquiescence  in  the  forfeiture.  Sheridan 
V.  Modern  Woodmen,  7:  973,  87  Pac.  127,  44 
Wash.  230. 

374.  Insurance  policies  should  not  be  con- 
struer"  to  work  a  forfeiture  of  either  party's 
rights  unless  it  plainly  appears  that  such 
was  tlie  intention  of  both  contracting  par- 
ties. Port  Blakely  Mill  Co.  v.  Springfield 
F.  &  M.  Ins.  Co.  28:  593,  106  Pac.  194,  56 
Wash,  681,  110  Pac.  36,  59  Wash.  501. 

375.  The  "padding"  of  an  inventory  of 
merchandise  by  false  entries  of  articles  not 
on  hand  will  work  a  forfeiture  of  a  fire 
insurance  policj',  when  such  entries  can- 
not be  explained  on  any  reasonable  theory 
of  honest  mistake.  Alfred  Hiller  Co.  v. 
Insurance  Co.  of  N,  A.  32:  453,  52  So.  104, 
125   La,   938,  (Annotated) 

376.  The  act  of  an  agent  to  whom  an  in- 
sured has  delegated  the  duty  of  doing  every- 
thing required  to  make  complete  proof  of 
loss,  without  question  or  supervision,  in 
presenting  false-  and  fraudulent  vouchers 
to  the  company  pursuant  to  a  demand  made 
by  the  company,  is  imputable  to  the  insured, 
and  the  policy  is  thereby  vitiated,  where 
it  contains  a  provision  that  it  should  be- 
come void  in  case  of  any  fraud  or  false 
swearing  by  the  insured  touching  any  mat- 
ter relating  to  the  insurance  or  the  subject 
thereof,  whether  before  or  after  a  loss. 
Mick  V,  Corporation  of  Royal  Exch.  Assur. 
(N.  J.  Err.  &  App.)  52:  1074,  91  Atl.  102, 
—  N,  J.  — .  (Annotated) 

2.    For    nonpayment    of    premiums    or 
assessments, 

(See  also   same  heading  in  Digest   L.R.A. 

1-10.) 

Right  to  paid-up  policy  or  extended  insur- 
ance after  forfeiture,  see  supra,  164- 
174. 

Effect  of  incontestable  clause,  see  supra,  366. 

Waiver  as^o,  see  infra,  487,  495. 

Cancelation  of  policy  for  nonpayment  as  a 
defense,  see  infra,  861. 

Computation  of  days  of  grace  allowed  for 
payment  of  premium,  see  Time,  12, 

See  also  supra,  11,  185, 

377.  The  courts  will  enforce  an  agreement 
that  failure  to  pay  an  insurance  premium 
when  due  will  work  a  forfeiture  of  the  pol- 
icv  whether  the  condition  be  regarded  as 
Digest  1-52  Ii.R.A.(N.S.) 


precedent  or  subsequent.  Thompson  v.  Fi- 
delity Mut.  L.  Ins.  Co.  6:  1039,  92  S.  W. 
1098,  116  Tenn.  557. 

378.  Under  a  provision  in  a  fire  insurance 
policy  that  all  assessments  must  be  paid 
within  thirty  days  after  notice  or  the  policy 
will  be  null,  the  expiration  of  thirty  day& 
without  payment  annuls  the  policy  without 
action  on  the  part  of  tlie  insurer.  I\Iutual 
Fire  Co.  v.  Maple,  38:  726,  119  Pac.  484^ 
GO  Or.  359. 

379.  The  failure  to  pay  any  except  the 
first  annual  instalment  of  premium  due  on 
a  life  insurance  policy  which  contains  no- 
provision  for  a  forfeiture  thereof  for  non- 
payment of  premium  does  not  work  a  forfei- 
ture of  the  policy,  and  all  tliat  the  insurer 
can  demand  for  such  failure  is  the  right  to- 
set  off  against  the  indemnity  it  has  bound  it- 
self to  pay,  the  amount  of  the  premiums  so- 
unpaid,  with  interest  thereon,  liaas  v.  Mu- 
tual L.  Ins.  Co.  26:  747,  121  N.  W.  996,  84 
Neb.  682.  (Annotated) 

380.  A  policy  of  life  insurance  for  the 
term  of  one  year,  at  a  premium  payable 
quarterly,  which  is  subject  to  a  condition 
that  it  shall  "be  null  and  void  and  of  no 
effect  if  at  the  time  of  the  death  of  the 
person  upon  whose  life  this  policy  is- 
granted  any  of  the  above  mentioned  pre- 
miums, as  well  half  yearly  or  quarterly  as 
annually,  shall  be  more  tlian  30  day's  in. 
arrears,"  is  pre^^ented  from  lapsing  by  a 
payment  of  the  premium  within  the  days  of 
grace,  although  after  the  death  of  the  as- 
sured. Stuart  V.  Freeman,  2  B.  R.  C.  183,. 
[1903]  1  K.  B.  47.  Also  Reported  in  72 
L.  J.  K.  B.  N.  S.  1,  51  Week.  Rep.  211,  87 
L.  T.  N.  S.  516,  19  Times  L.  R,  24. 

( Annotated ) 
Freminm  note. 

Waiver  as  to,  see  infra,  489,  582,  585,  587, 
588,  601,  606. 

381.  A  provision  in  premium  notes  given 
on  a  policy  of  fir>e  insurance  that  "if  the 
notes  are  not  paid  at  maturity,  the  policy 
shall  be  null  and  void,"  is  a  valid  provision, 
but  may  be  waived  by  the  company.  Shaw- 
nee Mut.  F.  Ins.  Co.  V.  Cannedy,  44:  376^ 
129  Pac.  865,  36  Okla.  733. 

382.  A  fire  insurance  policy  is  not  invali- 
dated by  nonpayment  of  premium  notes  at 
maturity,  where  no  reference  is  made  to 
them  in  the  policy,  and' its  validity  is  in  no 
way  made  contingent  upon  tlxpir  payment. 
Arkansas  Ins.  Co.  v.  Cox,  20:  775,  98  Pac. 
552,  21  Okla.  873. 

383.  A  provision  in  a  life  insurance  policy- 
making it  void  in  case  of  failure  to  pay  a 
premium  note  does  not  apply  to  a  note 
taken  by  the  agent  for  his  share  of  the  first 
premium,  the  share  belonging  to  the  com- 
pany being  paid  by  the  applicant  in  cash,, 
although  the  note  is  afterwards  turned  over 
to  the  company  for  collection.  Reppond  v.. 
National  L.  Ins.  Co.  11:  981,  101  S.  W.  786,. 
100  Tex.  519. 

384.  Under  a  clause  in  a  note  given  for  an 
insurance  premium,  that  "for  any  loss  oc- 
curring by  death  after  this  note  is  due  and- 
remains  unpaid  then  said  company  shall  not 
be  liable,"  the  policy  is  not  forfeited  by  fail- 


INSURANCE,  III.  f,  2. 


1567 


ure  to  make  prompt  payment,  but  the  lia- 
bility of  the  insurer  is  merely  suspended 
during  the  default,  permitting  the  insured 
by  payment  to  restore  the  liability.  Kav- 
anaugh  v.  Security  Trust  &  L.  Ins.  Co.  7: 
253,   96   S.   W.   499,   117   Tenn.   33. 

385.  A  policy  of  life  insurance  delivered 
to  the  insured  vipon  his  executing  notes  for 
the  initial  premium,  and  which,  together 
with  the  notes,  provides  that,  if  any  obliga- 
tion given  for  premiums  shall  not  be  paid 
when  due,  tlie  policy  shall  be  void  until  duly 
reinstated  during  the  lifetime  and  good 
health  of  the  insured,  becomes  void  upon  the 
failure  of  the  insured  to  pay  one  of  the 
notes,  and,  if  he  is  not  reinstated  before  his 
death,  no  right  of  recovery  upon  it  exists. 
Hipp  v.  Fidelity  Mut.  L.  Ins.  Co.  12:  319, 
57  S.  E.  892,  128  Ga.  491. 

386.  The  mere  insertion,  by  an  agent  of  a 
life  insurance  company,  of  a  pencil  memoran- 
dum of  the  number  of  the  policy,  in  a  blank 
left  for  that  purpose  in  notes  given  in  lieu 
of  the  prepayment  of  the  cash  premium, 
after  they  were  signed,  will  not,  in  the  ab- 
sence of  any  question  as  to  the  identity  of 
the  notes,  or  of  any  fraudulent  purpose, 
prevent  the  forfeiture  of  the  policy  for  non- 
payment in  accordance  with  a  stipulation 
contained  in  the  notes.  Hipp  v.  Fidelity 
Mut.  L.  Ins.  Co.  12:  319,  57  S.  E.  892,  128 
Ga.  491. 

387.  That  the  brother  of  one  who  had 
given  a  note  for  a  life  insurance  premium, 
but  who  was  absent  from  home  when  it  fell 
due,  voluntarily,  and  not  as  agent  of  the  in- 
sured, went  to  the  bank  and  to  the  office  of 
the  local  agent  of  the  insurance  company, 
with  the  intention  of  paying  the  note,  but 
found  both  places  closed,  will  not  prevent  a 
forfeiture  of  the  policy  for  nonpayment. 
Hipp  V.  Fidelity  Mut.  L.  Ins.  Co.  12:319, 
57  S.  E.  892,  128  Ga.  491. 

388.  That  one  insured  was  sick  and  un- 
able to  attend  to  business  at  the  time  when 
a  premium  note  fell  due,  and  so  remained 
until  he  died,  will  not  prevent  a  forfeiture 
of  the  policy  for  nonpayment,  in  accordance 
with  the  express  terms  contained  in  it  and 
in  the  premium  note.  Hipp  v.  Fidelity  Mut. 
L.  Ins.  Co.  12:  319,  57  S.  E.  892,  128  Ga.  491. 

(Annotated) 

389.  An  option  provided  for  in  a  life  in- 
surance policy  stipulating  that,  upon  satis- 
factory proof  to  the  company  of  the  inca- 
pacity or  disability  of  the  insured,  the  pre- 
miums payable  for  the  remaining  years  shall 
cease  or  be  remitted  during  the  continuance 
of  the  incapacity,  and  that  the  insurance 
shall  be  paid  as  an  endowment  at  the  age  of 
eighty,  or  at  death  if  before  that  age,  was 
not  rendered  operative  by  the  fact  that  the 
insured  was  sick  Avith  typhoid  fever  when 
one  of  the  premium  notes  fell  due,  and  that 
he  so  remained  until  his  death  some  weeks 
thereafter.  Hipp  v.  Fidelity  Mut.  L.  Ins. 
Co.  12:  3iq,  57  S.  E.  892,  128  Ga.  491. 

390.  A  provision  in  a  rider  attached  to  a 
life  insurance  policy,  that,  upon  acceptance 
by  the  company  of  satisfactory  proof  of  the 
total  and  permanent  incapacity  or  disability 
of  the  insured,  either  by  accident  or  bodily 
Digest  1-52  I..R.A.(N.S.) 


or  mental  disorder,  he  should  be  entitled,  in 
lieu  of  other  benefits  and  advantages  under 
the  policy,  to  either  one  of  two  options,  will 
not  prevent  a  forfeiture  of  the  policy  for 
nonpayment  of  a  premium  note  falling  due 
during  the  last  illness  of  the  insured,  where 
it  does  not  appear  that  the  stipulated 
proof  had  been  received  or  accepted  by  the 
company,  or  that  either  of  the  options  had 
been  exercised.  Hipp  v.  Fidelity  Mut.  L. 
Ins.  Co.   12:  319,  57  S.  E.  892,  128  Ga.  491. 

391.  One  who  has  given  his  note  in  settle- 
ment of  a  life  insurance  premium,  which 
note,  although  not  on  its  face  payable  or  to 
be  negotiated  at  a  bank,  is  in  fact  sent 
through  a  bank  foi-.  collection,  is  entitled  to 
the  entire  day  of  maturity  in  which  to  make 
payment,  without  a  forfeiture  resulting 
from  default  in  payment,  and  his  right  to 
pay  is  not  terminated  at  the  close  of  bank- 
ing hours.  Hipp  v.  Fidelity  Mut.  L.  Ins. 
Co.  12:  319,  57  S.  E.  892,  128  Ga.  491. 

392.  Presentation  of  a  note  given  for  a 
life  insurance  premium  and  made  payable 
in  a  certain  city,  at  the  address  which  the 
maker  appended  to  his  signature,  is  suffi- 
cient, in  the  absence  of  any  change  of  ad- 
dress and  notice  thereof  to  the  payee,  al- 
though the  maker  was  on  that  day  absent 
from  the  city.  Hipp  v.  Fidelity  Mut.  L. 
Ins.  Co.  12:  319,  57  S.  E.  892,  128  Ga.  491. 
Notice. 

Estoppel  by  customary  giving  of,  see  infra, 

562. 
Conflict   of    laws    as    to,    see    Conflict    of 

Laws,  46. 
See  also  supra,  93;  infra,  405. 

393.  Although  a  contract  for  accident  in- 
surance, the  premiums  on  which  are  to  be 
paid  monthly,  expressly  provides  that  they 
must  be  paid  on  the  first  day  of  each  month, 
without  notice,  yet,  if  for  ten  months  the  in- 
sured is  sent  notice  of  the  maturity  of  the 
premium,  with  a  request  that  it  be  sent  in 
a  self-addressed  envelop,  the  insurer  can- 
not suddenly,  without  warning,  cease  to 
send  the  notice,  and  forfeit  the  policy  for 
nonpayment,  which  occurs  because  the  as- 
sured has,  in  good  faith,  waited  for  the  usu- 
al notice;  especially  where  the  payments 
were  to  be  entered  in  a  book  which  must  al- 
ways be  presented  with  the  payment,  so  that 
assured  might  well  assume  that  the  only 
safe  way  of  preserving  the  book  was  in  send- 
ing it  as  directed  by  the  insurer,  to  a  post- 
office  address  designated  by  it.  Knoebel  v. 
North  American  Acci.  Ins.  Co.  20:  1037,  115 
N.  W.  1094,  135  Wis.  424.  (Annotated) 

394.  The  mere  mailing  of  a  notice  prop- 
erly addressed  and  stamped  is  not,  in  the 
absence  of  a  statute  or  contract  provision,  a 
compliance  with  a  custom  to  give  notice  of 
the  maturing  of  a  note  given  for  an  insur- 
ance premium,  where  the  letter  never  reach- 
es its  destination,  although  the  custom  has 
been  to  give  notice  by  mail.  Kavanaugh 
V.  Security  Trust  &  L.  Ins.  Co.  7:  253,  90 
S.  W.  499,  117  Tenn.  33.  (Annotated) 

395.  Where  for  eight  years  an  insurance 
company  has  permitted  an  assignee  of  a 
policy  to  pay  the  annual  premium  by  notes 
falling  due  quarterly,  and  has  always  noti- 


1568 


INSURANCE,  III.  g. 


fied  him  when  a  note  was  falling  due,  the 
policy  cannot  be  forfeited  for  nonpayment 
of  a  note,  unless  the  customary  notice 
reached  him.  Kavanaugh  v.  Security  Trust 
&  L.  Ins.  Co.  7:  253,  96  S.  W.  499,  117  Tenn. 
33. 

396.  The  duty  of  an  insured  promptly  to 
pay  his  premiums  is  complied  with  in  case, 
through  miscarriage  of  the  mail,  a  cus- 
tomary notice  of  the  maturity  of  a  premium 
does  not  reach  him,  if,  upon  subsequently 
receiving  notice,  he  promptly  pays  the  pre- 
mium due.  Kavanaugh  v.  Security  Trust 
&  L.  Ins.  Co.  7:  253,  96  S.  W.  499,  117  Tenn. 
33.  (Annotated) 
Mutual    benefit    assessment. 

Effect  of  demanding,  accepting  and  retain- 
ing assessment,  see  infra,  V.  b,  5,  d'. 

Right  to  reinstatement  on  payment  of,  see 
infra,  407,  411-413. 

Mutual  benefit  assessments  generally,  see 
infra,   427-433. 

397.  A  single  act  of  the  clerk  of  a  local 
camp  of  a  mutual  benefit  society  in  at- 
tempting to  contract  notwithstanding  a  pro- 
vision of  the  laws  of  the  order  that  no  act 
on  his  part  shall  have  the  effect  of  creating 
a  liability  on  the  part  of  the  society,  or  of 
waiving  any  right  belonging  to  it;  which  act 
consists  of  promising  the  representatives  of 
an  insane  member  to  notify  them  of  as- 
sessments,— will  not  bind  the  society  so  as 
to  prevent  its  claiming  a  forfeiture  of  the 
certificate  for  nonpayment  of  dues,  notice 
of  which  is  regularly  mailed  to  the  member, 
although  no  notice  is  given  to  the  repre- 
sentatives according  to  the  promise.  Sheri- 
dan V.  Modern  Woodmen  of  America,  7:  973, 
87   Pac.   127,  44   Wash.  230. 

398.  A  member  of  a  mutual  benefit  society 
cannot  be  declared  in  default  for  nonpay- 
ment of  assessments,  if  he  has  paid  in 
enough  money  to  meet  the  assessments,  but 
it  had  been  wrongfully  diverted  to  other 
purposes  in  excess  of  the  authority  of  the 
society.  Clark  v.  Iowa  State  Traveling 
Men's  Asso.  42:631,  135  N.  W.  1114,  156 
Iowa,  201. 

399.  Failure  to  pay  dues  ipso  facto  for- 
feits a  mutual  benefit  certificate,  where  the 
constitution  and  by-laws  of  the  society  pro- 
vide that  upon  such  failure  the  benefit  cer- 
tificate shall  become  absolutely  void,  and 
all  liability  of  the  society  thereon  shall 
thereupon  end.  Kennedy  v.  Grand  Frater- 
nity, 25:  78,  92  Pac.  971,  36  Mont.  325. 

400.  No  declaration  of  forfeiture  is  nec- 
essary to  terminate  the  rights  of  a  member 
of  a  mutual  benefit  society  for  nonpayment 
of  dues  where  the  by-laws  provide  that  any 
member  shall  ipso  facto  forfeit  his  member- 
ship who  fails  to  pay  his  assessment  for 
thirty  days  after  notice.  Knights  of  Co- 
lumbus V.  Burroughs,  17:  246,  60  S.  E.  40, 
107  Va.  671.  (Annotated) 

401.  Forfeiture  of  the  rights  of  a  member 
of  a  mutual  benefit  society  for  the  nonpay- 
ment of  dues  is  not  prevented  by  the  fact 
that  they  were  paid  by  the  local  branch  of 
the  order  to  which  he  belonged,  where  the 
local  branch  forwarded  the  money  without 
complying  with  the  provisions  of  a  by-law 
Digest   1-52  Ii.R.A.(N.S.) 


that  no  money  shall  be  paid  from  the  treas- 
ury unless  by  a  two-tiiirds  vote  of  the  mem- 
bers at  a  regular  meeting  iield  subsequently 
to  a  regular  meeting  at  which  notice  of  in- 
tention to  pay  and  the  purpose  and  amount 
are  given  and  read.  Kniglits  of  Columbus 
V.  Burroughs,  17:  246,  60  8.  E.  40,  107  Va. 
671. 

402.  The  mere  fact  that  a  mutual  benefit 
association  owes  a  member  for  services  an 
amount  in  excess  of  an  assessment  against 
him  for  premium  on  his  certificate  does  not 
require  an  application  of  it  upon  the  assess- 
ment, so  as  to  prevent  a  forfeiture  of  the 
certificate  for  nonpayment  of  dues.  Cay- 
wood  V.  Supreme  Lodge  K.  &  L.  of  H.  23: 
304,  86  N.  E.  482,  171  Ind.  410.      (Annotated) 

403.  Insanity  of  a  member  of  a  mutual 
benefit  society  is  no  excuse  for  noncompli- 
ance with  his  contract  as  to  payment  of 
dues.  Sheridan  v.  Modern  Woodmen  of 
America,  7:  973,  87  Pac.  127,  44  Wash.  230. 

404.  That  a  member  of  a  mutual  benefit 
society  is  insane  does  not  relieve  him  of 
tlie  consequences  of  neglect  to  pay  dues  if 
there  is  no  provision  to  that  effect  in  the 
rules  of  the  order.  McCann  v.  Supreme 
Conclave,  I.  0.  H.  46:537,  87  Atl.  ^83,  119 
Md.   655.  (Annotated) 

405.  Publishing  notice  of  assessments  in 
an  ofiicial  paper,  without  anything  to  show 
that  it  was  sent  to  a  certificate  holder,  is 
not  a  sufficient  compliance  with  a  rule  of 
a  mutual  benefit  society  that  printed  no- 
tices of  assessment  shall  be  made  and  sent 
in  such  manner  as  the  grand  legion  shall 
provide,  to  put  the  member  in  default  for 
nonpayment  of  the  assessment.  Grand  Le- 
gion of  111.  S.  K.  of  A.  V.  Beaty,  8:  1124, 
79  N.  E.  565,  224  111.  346. 

406.  A  local  branch  of  a  mutual  benefit 
insurance  company  which  has  provided  for 
sick  benefits  for  which  the  general  order 
has  assumed  no  responsibility  has  no  au- 
thority to  apply  an  amount  due  a  member 
for  such  benefits  in  payment  of  an  assess- 
ment against  him,  so  as  to  prevent  his  cer- 
tificate from  lapsing  for  nonpayment  of 
dues,  where  the  rules  of  the  order  require 
his  dues  to  be  apportioned  between  the 
death  benefit  fund  and  the  general  fund 
of  the  order.  McCann  v.  Supreme  Con- 
clave, I.  O.  H.  46:537.  87  Atl.  383,  119 
Md.  655. 

g.   Reinstatement;  revival. 

(See  also   same  heading  in  Digest  L.R.A 
1-70.) 

Effect  of  incontestable  clause,  see  supra, 
367. 

Effect  of  demanding,  accepting  and  retain- 
ing premium  or  assessment,  see  infra, 
V.  b,  5,  d. 

Judicial  review  of  discretion  of  insurance 
company  as  to  reinstatement,  see 
Courts,  169,  170. 

Burden  of  proof  as  to  reinstatement,  see 
Evidence,  545. 


INSURANCE,  III.  h. 


1569 


407.  The  beneficiary  in  a  mutual  benefit 
certificate  lias  no  right  to  reinstate  the  mem- 
ber against  his  will  by  paying  assessments 
which  he  has  passed.  Proctor  v.  United 
Order  of  G.  S.  25:  370,  89  N.  E.  1042,  203 
Mass.  587. 

408.  A  provision  in  a  mutual  benefit  cer- 
tificate that  a  member  who  has  forfeited 
his  certificate  may  be  reinstated  by  present- 
ing an  application  which  shall  be  approved 
by  the  secretary  refers  to  the  secretary  of 
the  grand  lodge.  Kennedy  v.  Grand  Fra- 
ternity, 25:  78,  92  Pac.  971,  36  Mont.  325. 

409.  The  secretary  of  a  mutual  benefit 
society,  to  whom  evidence  of  good  health  is 
submitted  with  an  application  for  reinstate- 
ment by  a  member  who  has  forfeited  his 
rights,  does  not,  by  failure  to  call  for  ad- 
ditional evidence,  tacitly  admit  that  the 
evidence  submitted  is  sufficient,  so  as  to  re- 
quire him  to  approve  the  application  where 
he  has  a  discretion  whether  to  approve  or 
not.  Kennedy  v.  Grand  Fraternity,  25:  78, 
92  Pac.  971,  36  Mont.  325. 

410.  The  refusal  to  approve  a  certificate 
of  health  by  an  applicant  for  reinstatement 
to  a  mutual  benefit  society  cannot  be  said 
to  be  erroneous  where  the  applicant  shows 
that  he  has  recently  had  pneumonia,  al- 
though he  further  states  that  he  feels  better 
"at  the  present  time"  than  he  has  for  years, 
where  serious  after  effects  are  shown  some- 
times to  follow  pneumonia.  Kennedy  v. 
Grand  Fraternity,  25:  78,  92  Pac.  971,  36 
Mont.  325. 

411.  Payment  of  arrears  alone  is  not 
sufficient  to  reinstate  a  member  of  a  mutual 
benefit  society  who  has  forfeited  his  certifi- 
cate by  nonpayment  of  dues,  under  a  pro- 
vision of  the  constitution  that  one  who  has 
forfeited  his  certificate  by  nonpayment  of 
dues  may,  if  in  good  health,  be  reinstated 
by  presenting  an  application  accompanied 
by  the  arrears,  and,  in  every  such  applica- 
tion, applicant  shall  furnish  satisfactory 
proof  that  he  is  in  good  health,  but  ap- 
proval by  the  proper  officer  of  the  evidence 
of  health  is  also  necessary.  Kennedy  v. 
Grand  Fraternity,  25:78,  92  Pac.  971,  36 
Mont.  325. 

412.  Payment  by  a  member  of  a  mutual 
benefit  society  of  arrears  of  dues,  for  non- 
payment of  which  he  has  been  suspended,  to 
the  clerk  of  the  local  camp  at  a  time  when 
he  is  not  in  good  health,  will  not,  although 
it  is  received  and  forwarded  by  the  clerk, 
effect  a  reinstatement,  where,  by  the  laws  of 
the  order,  the  clerk  had  no  authority  to 
receive  such  payment  unless  the  suspended 
member  was  in  good  health,  as  such  member 
was  bound  to  take  notice  of  the  rule,  and 
therefore  knew  that  his  payment  was  in- 
effectual. Bixler  v.  Modern  Woodmen  of 
America,  38:  571,  72  S.  E.  704,  112  Va.  678. 

( Annotated ) 

413.  A  voluntary  inquiry  by  the  brother 
of  one  insured,  made  at  the  bank  several 
days  after  the  maturity  of  a  premium  note 
given  by  the  insured,  and  after  it  has  been 
dishonored  and  returned  to  the  company, 
and  an  offer  to  then  pay  the  local  agent, 
are  not  sufficient  to  reinstate  the  policy  or 
Digest  1-52  I..R.A.(N.S.) 


to  prevent  a  forfeiture.  Hipp  v.  Fidelity 
Mut.  L.  lus.  Co.  12:  319,  57  S.  E.  892,  128 
Ga.  491. 

414.  A  standard  insurance  policy  which 
by  its  terms,  becomes  void  by  vacancy  of 
the  premises,  is  not  revived  by  reoccupancy 
of  the  property  before  loss.  Uolliver  v. 
Granite  State  F.  Ins.  Co.  50:  11 06,  89  Atl. 
8,  111  Me.  275, 

h.    Premiums    and   assessments. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Forfeiture  for  nonpayment,  see  supra.  III. 
f,  2. 

Reinstatement  on  payment  of  overdue  premi- 
ums and  assessments,  see  supra.  III.  g. 

Demand,  acceptance,  and  retention  of,  aa 
waiver,  see  infra,  V.  b,  5,  d. 

Effect  of  recital  of  receipt  of  premium,  see 
infra,  565. 

Raising  question  of  failure  to  pay  for  first 
time  on  appeal,  see  Appeal  and  Eekok, 
747. 

Rendition  of  judgment  on  appeal  in  action 
to  recover  premium,  see  Appeal  and 
Ebroe,  1572. 

Error  in  admitting  evidence  of  foreign  stat- 
ute as  to  notice  of  maturity  of  premi- 
ums, see  Appeal  and  Eerob,  840. 

Right  to  recover  back,  see  Assumpsit,  32. 

Secretary  of  local  branch  of  fraternal  society 
as  agent  of  grand  lodge  for  collection  of, 
see  Benevolent  Societies,  4. 

Compelling  payment  of  unpaid  portion  of 
premium  where  insurance  wrongfully 
grants  rebate,  see  Contracts,  580. 

Right  of  one  violating  contract  to  give 
support  for  life  in  return  for  proceeds 
of  benefit  certificate  to  recover  assess- 
ments paid  by  him,  see  Contracts, 
696. 

Conclusiveness  of  acknowledgment  of  receipt 
of  premium,  see  Evidence,  916,  918. 

Evidence  as  to  time  of  payment  of  premium, 
see  Evidence,  2330. 

Covenant  of  tenant  to  pay  insurance  premi- 
um, see  Landlord  and  Tenant,  * 34. 

Right  to  rely  on  invalidity  of  policy  under 
general  issue  in  action  to  enforce  assess- 
ment thereon,  see  Pleading,  483. 

Question  for  jury  as  to  payment,  see  Trial, 
663. 

Effect  of  provision  after  bequest  of  policy 
that  legatee  pay  premiums,  see  Wills, 
417. 

Corroboration  of  witness  as  to  payment  of 
premiums,  see  Witnesses,  20i. 

See  also  supra,  191 ;   infra,  487,  495. 

Discrimination  in  rates,  see  supra,  1,  2. 

Constitutionality  of  statute  requiring  com- 
panies to  maintain  uniform  rates,  see 
Constitutional  Law,  698. 

Punishment  of  agent  giving  special  rates, 
see  Criminal  Law,  245. 

Admissibility  of  evidence  in  action  for  pen- 
alty for  rebating,  see  Evidence,  2037. 

Right  to  share  in  penalty  for  rebating,  see 
Penalties,  5. 
99 


1670 


INSURANCE,  III.  h. 


415.  A  parol  agreement  as  to  rates  differ- 
ent from  those  named  in  tiie  policy,  made 
by  an  insurance  agent  to  secure  business 
wliicii  had  been  carried  by  a  rival  company, 
is  not  binding  on  the  insurer,  where  the 
policy  provides  that  no  provision  or  condi- 
tion of  the  policy  shall  be  varied  or  al- 
tered by  anyone  unless  by  written  consent 
of  the  president  or  secretary  of  the  com- 
pany. Fidelity  &  Casualty  Co.  v.  Fresno 
Flume  &  Irrig.  Co.  37:  322,  119  Pac.  646, 
161   Cal.  466. 

416.  That  an  applicant  for  insurance  does 
not  sign  the  policy  does  not  absolve  him 
from  its  provisions  as  to  rates  of  premium 
and  limitation  of  agent's  authority,  so  as  to 
enable  him  to  enforce  an  oral  agreement 
that  the  rates  shall  be  different  from  those 
named  in  the  policy.  Fidelity  &  Casualty 
Co.  V.  Fresno  Flume  &  Irrig.  Co.  37:  322, 
119  Pac.  646,  161  Cal.  466. 

417.  An  insurance  company  does  not,  by 
attempting  to  enforce  by  action  the  pay- 
ment of  premiums  on  a  policy  of  insurance 
written  by  an  agent,  ratify  his  unauthor- 
ized oral  agreement  as  to  rates,  made  to 
secure  the  business.  Fidelity  &  Casualty 
Co.  V.  Fresno  Flume  &  Irrig.  Co.  37:  322, 
119  Pac.  646,  161  Cal.  466. 

418.  The  granting  of  a  rebate  on  the  pre- 
mium of  a  life-insurance  policy,  contrary  to 
the  provisions  of  a  statute  which  merely  for- 
bids such  act  under  penalty  of  forfeiture  of 
license  to  do  business  within  the  state,  does 
not  render  the  policy  void,  so  as  to  permit 
the  insured  to  recover  back  premiums  paid 
thereon.  Laun  v.  Pacific  Mut.  L.  Ins.  Co. 
9:  I2C4,  111  N.  W.  660,  131  Wis.  555. 

419.  The  return  to  an  applicant  for  life 
insurance  by  the  agent  of  a  part  of  his 
commission  is  not  within  the  operation  of  a 
statute  forbidding  life  insurance  companies 
to  make  discrimination  in  favor  of  particu- 
lar persons  in  rates  charged  for  insurance 
and  further  providing  that  no  company  or 
agent  shall  pay  or  allow,  as  an  inducement 
to  insurance,  any  rebate  of  premium  pay- 
able on  the  policy,  or  any  valuable  consid- 
eration or  inducement  whatever  not  specified 
in  the  policy.  Interstate  L.  Assur.  Co.  v. 
Dalton,  23:  722,  165  Fed.  176,  91  C.  C.  A. 
210.  (Annotated) 

420.  An  innocent  partner  in  an  insurance 
business  cannot,  after  dissolution  of  the 
partnership,  compel  policy  holders  who  se- 
cure a  discount  in  premiums  contrary  to 
provisions  of  the  statute  from  his  copart- 
ner, to  pay  the  unpaid  portion  of  the 
premium,  where  the  only  remedy  provided 
by  the  statute  for  its  violation  is  the  im- 
position of  a  penalty  upon  the  insurer  and 
a  reduction  on  the  face  of  the  policy  to  the 
amount  which  could  have  been  purchased 
by  the  premium  paid.  Way  v.  Pacific  Lum- 
ber &  Timber  Co.  49:  147,  133  Pac.  595, 
74  Wash.  332.  (Annotated) 

421 .  The  payment  of  the  first  premium  on 
an  insurance  policy  at  the  time  of  the  ap-  | 
plication  is  not  conclusively    negatived    by 
the  answer  "No"  to  the  question  in  the  ap-  | 
plication  whether  or  not  the  premium  was  I 
paid  in  advance,  if  the  word  is  immediately 
i)igest   1-52  L.R.A.(N.S.) 


followed  by  a  statement  of  cash  and  notes 
equal  to  the  amount  of  the  premium. 
Unterharnscheidt  v.  Missouri  State  L.  Ins. 
Co.  45:  743,  138  N.  W.  459,  160  Iowa,  223. 

422.  The  payment  of  the  first  premium  re- 
quired by  an  application  for  insurance,  to 
be  made  before  the  policy  will  become  bind- 
ing, is  not  effected  by  the  release  to  the 
applicant  of  the  agent's  commission  and 
payment  by  the  applicant  of  the  balance, 
where  the  commission  is  not  due  until  the 
premium  has  been  paid  in  cash  and  the  pol- 
icy issued,  and  all  moneys  received  by  the 
agent  are  to  be  held  in  trust  for  the  com- 
pany, while  the  binding  slip  requires  a  re- 
turn of  the  money  acknowledged  to  have 
been  received,  upon  rejection  of  the  policy. 
Union  C.  L.  Ins.  Co.  v.  Robinson,  8:  883,  148 
Fed.  358,  78  C.  C.  A.  268.  (Annotated) 

423.  The  first  premium  on  a  policy  of  in- 
surance will,  as  between  insurer  and  in- 
sured, be  deemed  to  have  been  paid  at  the 
time  the  general  agents  of  the  insurer  ex- 
tended credit  therefor  to  the  insured,  where 
such  premium  was  charged  to  the  agents  in 
their  account  with  the  insurer  pursuant  to 
the  general  course  of  dealings  between  them, 
which  disregarded  any  arrangements  the 
agents  might  make  with  insured  as  to  credit, 
notwithstanding  that  a  note  covering  the 
premium  in  question,  given  by  the  insured 
to  the  agents  did  not  mature  until  after  an 
attempt  had  been  made  to  cancel  the  policy, 
nor  until  after  the  destruction  of  the  prop- 
erty, and  that,  upon  maturity,  it  was  taken 
up  by  the  agents  from  the  bank  by  which  it 
had  been  discounted,  and  was  still  held  by 
them  at  the  time  of  the  action  on  the  policy, 
they  having  been  credited  in  the  meantime 
in  their  account  with  the  company  with  the 
amount  of  premium  unearned  at  the  time 
of  the  attempted  cancelation.  Buckley  v. 
Citizens'  Ins.  Co.  13:  889,  81  N.  E.  165,  188 
N.   Y.   399. 

Premium   notes. 

Forfeiture  of  policy  for  nonpayment  of,  see 

supra,  381-392. 
Waiver  as  to,  see  infra,  582,  585,  587,  588, 

601,  606. 
Defense    in    action    on    premium    note,    see 

Bills  axd  Notes,  204,  209. 
Admissibility  of  premium  note  in  evidence, 

see  Evidence,  833. 
Taxation  of,  see  Taxes,  67. 
See  also  supra,  423;   infra,  479,   480. 

424.  One  applying  for  a  particular  kind 
of  life  insurance  has  a  right  to  rely  upon 
the  agent's  agreement  to  furnish  such  kind 
of  policy,  and  his  failure  to  do  so  will  pre- 
vent enforcement  of  the  premium  notes. 
Summers  v.  Alexander,  38:  787,  120  Pac.  601, 
30  Okla.  198. 

425.  Where  notes  given  for  the  premium 
on  a  policy  of  fire  insurance  provide  that  if 
they  are  not  paid  at  maturity,  "the  whole 
amount  of  the  premium  should  be  con- 
sidered earned,  and  all  notes  given  in  set- 
tlement of  such  policy  be  due,  and  the 
policy  be  null  and  void,  and  bo  remain 
until  the  same  shall  be  fullj'  paid  and  the 
policy  be  reinstated  by  tlie  company,"  are 
not  paid  at  maturity,  but  are  retained  by 


INSURANCE,  III.  h. 


1571 


the  company,  which  continues  to  try  to  col- 
lect them,  bringing  suit  upon  one  of  them 
and  obtaining  judgment,  and  having  the 
judgment  docketed  in  the  district  court,  the 
provision  that,  if  the  notes  are  not  paid  at 
maturity,  the  whole  amount  should  be  con- 
sidered earned,  is  a  mere  penalty  which 
cannot  be  enforced.  Shawnee  Mut.  F.  Ins. 
Co.  V.  Cannedy,  44:  376,  129  Pac.  865,  36 
Okla.  733. 

426.  Although  agents  are  forbidden  by  a 
life  insurance  company  to  take  notes  for 
first  premiums,  the  taking  of  a  note  will 
constitute  a  payment  of  the  premium,  where 
the  custom  is  for  the  agent  to  take  the  note 
in  his  own  name  and  charge  it  to  himself 
in  his  account  with  the  company,  being  re- 
sponsible for  its  collection.  Kimbro  v.  New 
York  L.  Ins.  Co.  12:  421,  108  N.  W.  1025, 
134  Iowa,  84. 

Mutual   benefit   assessments. 
Forfeiture    for   nonpayment    of,   see   supra, 

397-406. 
Failure   to   apply   money   due   member   for 

services  upon  assessment  of   dues,  see 

Pleading,  251,  642. 
See  also  supra,  100. 

427.  A  mutual  benefit  society  cannot  deny, 
as  against  a  member  whose  assessment 
rate  it  has  undertaken  to  raise,  the  adop- 
tion of  a  constitutional  provision  fixing  the 
assessment  rate  according  to  the  age  of 
members  when  admitted,  when  thousands  of 
pamphlets  showing  such  provision  as  part 
of  the  constitution  had  been  sent  to  mem- 
bers. Dowdall  V.  Supreme  Council,  C.  M. 
B.  A.  31:  417,  89  N.  E,  1075,  196  N.  Y.  405. 

428.  The  amount  of  each  assessment  stip- 
ulated in  a  mutual  benefit  insurance  con- 
tract cannot  be  aised  by  the  association 
without  the  consent  of  the  member,  al- 
though he  has  agreed  to  comply  with  all 
the  laws,  rules,  and  requirements  of  the 
order.  Dowdall  v.  Supreme  Council  C.  M. 
B.  A.  31:  417,  89  N.  E.  1075,  196  N.  Y.  405. 

( Annotated) 

429.  A  member  of  a  mutual  insurance  as- 
sociation cannot,  in  the  absence  of  any  ex- 
press contract  obligation,  be  required  to 
pay  assessments  for  losses  which  occurred 
prior  to  his  membership.  Clark  v.  Iowa 
State  Traveling  Men's  Asso.  42:631,  135  N. 
W.  1114,  156  Iowa,  201. 

430.  A  by-law  of  a  mutual  insurance  com- 
pany authorizing  the  directors  to  order  an 
assessment  to  raise  funds  for  the  purpose 
of  carrying  out  the  aims  and  objects  of  the 
association  does  not  justify  the  assessment 
of  a  member  for  losses  occurring  before  his 
membership.  Clark  v.  Iowa  State  Travel- 
incr  Men's  Asso.  42:  631,  135  N.  W.  1114, 
156  Iowa,  201. 

431.  A  mutual  insurance  company  whose 
constitution  and  by-laws  do  not  provide 
for  an  emergency  fund  cannot  justify  as- 
sessments for  the  creation  of  such  fund, 
without  amending  the  constitution  and  by- 
laws in  the  manner  pointed  out  in  tliose 
instruments.  Clark  v.  Iowa  State  Traveling 
Men's  Asso.  42:  631,  135  N.  W.  1114,  156 
Iowa,  201. 

432.  Payment  by  a  member  of  a  mutual 
Digest  1-52  L.R.A.(N.S.) 


benefit  society,  of  assessments  which  are 
being  diverted  to  the  formation  of  an  emer- 
gency fund,  does  not  show  acquiescence  on 
his  part  in  the  creation  of  such  fund,  if 
he  had  no  knowledge  of  the  fact,  and,  vm- 
der  the  constitution  and  by-laws  there  was 
no  authority  to  create  such  fund.  Clark  v. 
Iowa  State  Traveling  Men's  Asso.  42:  631, 
135  N.  W.  1114,  156  Iowa,  201. 

433.  Consent  by  a  member  of  a  mutual 
benefit  society,  to  be  bound  by  all  present 
and  future  rules  of  the  order,  does  not  em- 
power the  society  to  make  an  increase  in 
the  rate  of  his  assessment  date  from  the 
inception  of  his  policy,  and  deduct  the 
amount  owing  by  him  under  such  arrange- 
ment from  the  face  of  his  policy.  Jaeger  v. 
Grand  Lodge  of  Order  of  Hermann's  Sons, 
39:  494,  135  N.  W.  869,  149  Wis.  354. 
Refunding    or    recovery    of    premiums 

or  assessments. 
EfTect  of  offer  to  return  premium  receipt  of 

which  waived  breach  of  condition,  see 

infra,  495. 
See   also   infra,   466. 

434.  An  applicant  for  life  insurance  who 
has  been  compelled  to  pay  to  an  innocent 
holder  a  negotiable  premium  note  giveni 
at  the  time  of  such  application  may  re- 
cover from  the  company  the  amount  so 
paid,  where  he  has  refused  the  policy  be- 
cause it  does  not  comply  with  the  oral 
representations  of  the  agent.  Evans  v.. 
Central  L.  Ins.  Co.  41:  1130,  125  Pac.  86,  87 
Kan.  641. 

435.  One  voluntarily  paying  insurance  pre- 
miums with  knowledge  of  the  facts  cannot 
recover  them  on  the  theory  that  they  were- 
not  in  accord  with  his  contract.  Jones  v. 
Provident  Sav.  L.  Assur.  Soc.  25:  803,  61  S. 
E.  388,  147  N.  C.  540. 

436.  In  an  action  to  recover  back  pre- 
miums paid  on  a  policy  of  insurance  whicb 
never  attached,  because  the  building  insured 
was  on  leased  ground  the  insurer  is  not 
obliged  to  return,  or  offer  to  return,  pre- 
miums paid  voluntarily  before  notice  of  the 
fact  that  the  policy  was  not  in  force,  as  a 
condition  precedent  to  availing  itself  of 
such  fact  as  a  defense.  Re  Millers'  &  M. 
Ins.  Co.  4:  231,  106  N.  W.  485,  97  Minn.  98. 

437.  A  benefit  society  from  which  a 
beneficiary  certificate  has  been  obtained  by 
fraudulent  understatement  of  the  age  of 
tne  applicant  is  under  no  legal  obligation 
to  return  what  has  been  paid  as  assessments 
before  it  can  claim  that  the  contract  is  not 
in  force.  Taylor  v.  Grand  Lodge  A.  0.  U. 
W.  3:  114,  105  N.  W.  408,  96  ]\Imn.  441. 

.     (Annotated) 

438.  One  who  secures,  by  fraudulent  state- 
ments concerning  his  age,  a  mutual  benefit 
certificate  which  provides  for  forfeiture  of 
assessments  in  case  of  false  statements  on 
that  subject,  cannot  demand  a  return  of 
assessments  paid  when  his  fraud  is  dis- 
covered and  the  certificate  declared  for- 
feited. Elliott  v.  Knights  of  Modern  Macca- 
bees, 13:  856,  89.  Pac.  929,  46  Wash.  320. 

439.  One  who  has  secured  a  mutual  i)enefit 
certificate  by  fraud  cannot,  after  the  assess-- 


1572 


INSURANCE,  1\-.  a. 


ments  paid  by  him  have  been  disbursed  to 
pay  claims  against  the  association,  demand 
a  return  of  the  amounts  paid  when  his  cer- 
tificate is  forfeited  for  the  fraud,  since  the 
parties  cannot  be  placed  in  statu  quo.  Elli- 
ott V.  Knights  of  Modern  Maccabees,  13: 
856,  89  Pac.  929,  46  Wash.  320. 

440.  To  entitle  an  insurance  company  to 
cancelation  of  a  policy  because  of  fraudu- 
lent statements  in  the  application,  it  must 
return  the  premiums  paid,  although  the 
contract  provides  that  in  case  of  such  state- 
ment all  payments  shall  be  forfeited.  Met- 
ropolitan L.  Ins.  Co.  V.  Freedman,  32:  298, 
123    N.    W.    547,    159    Mich.    114. 

(Annotated) 

441.  An  insurer  need  not  return  or  tender 
the  premiums  received,  as  a  condition  of 
setting  up  as  a  defense  the  death  of  the 
insured  from  an  excepted  cause,  since  the 
insurance  contracted  for  has  been  given. 
Red  Men's  Fraternal  Acci.  Asso.  v.  Rippey, 
50:  1006,  103  N.  E.  345,  104  N.  E.  641,  181 
Ind.  454. 

442.  Beneficiaries  of  a  life-insurance  con- 
tract have,  upon  the  repudiation  of  the  pol- 
icy by  the  company,  no  such  interest  in  it 
that  enables  them  to  recover  the  premiums 
paid,  that  right  being  vested  in  the  insured; 
nor  are  they  entitled  to  damages  where  the 
law  recognizes  the  right  of  the  insured  to 
dispose  of  the  policy  by  assignment,  will,  or 
gift,  without  their  consent.  Slocum  v. 
Northwestern  Nat.  L.  Ins.  Co.  14 :  1110, 
115  N.  W.  796,  135  Wis.  288.      (Annotated) 

443.  The  right  of  an  assured,  who  has 
been  induced  to  continue  to  pay  premiums 
on  a  policy  of  insurance  by  the  false  repre- 
sentations of  the  insurer's  agent,  to  rescind 
the  policy  and  recover  the  premiums  in  an 
action  for  money  had  and  received,  is  not 
affected  by  the  fact  that  while  the  policy 
was  in  force  the  insurer  was  under  a  con- 
tingent liability;  since  a  mere  risk  of  that 
kind,  which  has  not  produced  any  benefit 
in  fact  to  the  assured,  is  not  a  part  per- 
formance so  as  to  bar  the  assured  from  the 
exercise  of  an  option  to  avoid  it.  Kettle- 
well  V.  Refuge  Assur.  Co.  3  B.  R.  C.  844, 
[1908]  1  K.  B.  545.  Also  Reported  in 
77  L.  J.  K.  B.  N.  S.  421,  97  L.  T.  N.  S.  896, 
24  Times  L.  R.  217,  52  Sol.  Jo.  158. 

( Annotated ) 

444.  One  who,  in  reliance  upon  the  repre- 
sentation of  the  agent  of  an  insurer  that 
an  insurance  effected  by  him  upon  the  life 
of  another  {>erson  would  be  a  valid  insur- 
ance, has  taken  out  such  an  insurance,  is 
not,  assuming  such  insurance  to  be  illegal 
and  void  for  want  of  an  insurable  interest, 
entitled  to  a  return  of  the  premiums  paid, 
where  the  agent  made  the  representation 
in  good  faith,  believing  it  to  be  true;  the 
parties  being  in  such  case  in  pari  delicto. 
Harse  v.  Pearl  L.  Assur.  Co.  3  B.  R.  C.  832, 
[1904]  1  K.  B.  558.  Also  Reported  in  73 
L.  J.  K.  B.  N.  S.  373,  52  Week.  Rep.  457, 
90  L.  T.  N.  S.  245,  20  Times  L.  R.  264. 

(Annotated) 
Return  of  unearned  premium. 
Return    of    unearned    premium   in    case   of 
Digest   1-52  L.R.A.(N.S.) 


cancelation  or  surrender,  see  supra, 
154. 

Failure  to  ofi"cr  to  return,  as  waiver,  see 
infra,   577. 

Judgnu>nt  directing  return  of  premiums 
with  interest  where  liability  on  policy 
is  defeated,  see  Judgment,  33. 

Necessity  that  insurer  contesting  liability 
on  policy  should  tender  premiums  re- 
ceived, see  Tendeb,  6. 

See  also   infra,   482. 

445.  A  tender  or  return  of  the  unearned 
premium  is  necessary  to  effect  the  cancela- 
tion of  an  insurance  policy,  under  a  provi- 
sion in  a  policy  providing  that  when  the 
policy  is  canceled  by  the  company  it  shall 
retain  only  the  pro  rata  premium.  German 
Union  F.  Ins.  Co.  v.  Fred  G.  Clarke  Co. 
39:  829,  82  Atl.  974,  116  Md.  622. 

446.  Under  a  policy  providing  that  it 
"shall  be  void  if  the  building  herein  de- 
scribed, whether  intended  for  occupancy  bj- 
owner  or  tenant,  be  or  become  vacant  or  un- 
occupied and  so  remain  for  ten  days,"  and 
also  that  "if  this  policy  shall  .  .  .  be- 
come void  or  cease,  the  premium  having 
been  actually  paid,  the  unearned  portion 
shall  be  returned  on  surrender  of  this  pol- 
icy or  last  renewal,  this  company  retain- 
ing the  customary  short  rate,"  the  company 
is  not  bound  to  return  any  unearned  pre- 
mium, unless  the  policy  is  surrendered. 
Schmidt  v.  Williamsburgh  City  F.  Ins.  Co. 
51:  261,  144  N.  W.  1044,  95  Neb.  43. 

IV.    Transfer   of  policy   or   of  interest 
therein. 

a.  Assignment  generally. 

(See  also  sam,e  heading  in  Diqest  L.R.A. 
1-70.) 

Interest  of  assignees  in  proceeds  of  policy, 
see  infra,  VI.  d,  2,  d. 

Abatement  of  action  on  assigned  policy, 
see  Abatement  and  Revival,  30. 

EflFect  of  assignment  to  exclude  policies 
from  operation  of  bankruptcy  act,  see 
Bankrxiptcy,  34. 

Transfer  of  proceeds  of  policy  as  preference 
under  provisions  of  bankruptcy  act, 
see  Bankruptcy,  60. 

Evidence  as  to  capacity  of  one  making  as- 
signment', see  Evidence,  1102. 

SuflSciency  of  proof  of  gift  of  insurance 
policy,  see  Evidence,  2282. 

Running  of  limitations  against  liability  for 
wrongfully  assigning  policy,  see  Limi- 
tation OF  Actions,  134. 

Competency  of  witness  in  action  to  recover 
proceeds  of  policy  by  one  claiming  pa- 
rol gift  thereof,  see  Witnesses,  43. 

See  also  infra,  670. 

447.  An  assignment  of  an  insurance  pol- 
icy to  trustees  to  be  named  in  the  will  of 
the  assignor,  for  the  benefit  of  his  wife, 
does  not  vest  the  title  in  her,  under  a  stat- 
ute providing  that  every  policy  of  life  in- 
surance assigned  to  any  person  in  trust  foe ' 
a  married  woman  shall  inure  to  her  sepa- 


INSURANCE,  IV.  a. 


1573 


rate  use   and  benefit.     Frost  v.  Frost,   27: 
184,  88  N.   E.  446,  202  Mass.   100. 

448.  Assignment  or  hypothecation  of  a 
policy  of  fire  insurance  of  the  face  value  of 
$2,000  to  a  creditor,  as  collateral  security 
for  an  extension  of  time  on  a  debt  of  $300, 
does  not  constitute  or  amount  to  an  assign- 
ment of  the  policy,  in  violation  of  the  stipu- 
lation contained  therein,  to  the  effect  that 
the  policy  shall  be  void  if  "assigned  before 
loss."     Allen  v.   Phoenix   Assur.   Co.   8:  903, 

88  Pac.  245,  12  Idaho,  653. 

449.  The  constitutional  rights  of  the  cred- 
itors of  a  bankrupt  are  not  impaired  by  a 
statute  which  permits  him  to  assign  insur- 
ance on  his  life  to  his  wife  free  from  their 
claims  except  as  to  premiums  paid  in  fraud 
of   their   rights.      Bailey   v.   Wood,   25:  722, 

89  N.  E.  147,  202  Mass.  549. 

450.  A  paid-up  endowment  policy  is  with- 
in the  operation  of  the  statute  permitting 
a  man  to  assign  insurance  on  his  life  to  his 
wife  so  that  it  shall  inure  to  her  separate 
use  and  benefit  and  that  of  her  children,  ex- 
cept that  premiums  paid  in  fraud  of  cred- 
itors shall  inure  to  their  benefit  from  the 
proceeds  of  the  policy.  Bailey  v.  Wood, 
25:  722,  89  N.  E.  147,  202  Mass.  549. 

( Annotated ) 
Validity  generally. 

Conflict    of    laws    as    to,    see    CONBXicr   of 
Laws,  45. 

451.  One  who  has  insured  his  life  for  the 
benefit  of  his  children  with  the  option  of 
surrendering  the  policy  for  its  cash  value 
at  certain  specified  times  cannot  assign  the 
right  of  exercising  the  option  to  a  creditor. 
McCutchen  v.  Tovvnsend,  16:  316,  105  S. 
W.  937,  127  Ky.  230.  (Annotated) 

452.  An  assignment  of  an  insurance 
policy  by  one  who,  by  a  long-existing  habit 
of  using  intoxicating  liquor  to  excess,  has 
permanently  impaired  his  mental  faculties 
to  such  an  extent  that  he  could  not  act  ra- 
tionally, is  invalid,  although,  at  the  time 
of  making  the  assignment,  he  is  not  in- 
toxicated and  does  not  manifest  any  aber- 
ration. Searles  v.  Northwestern  Mut.  L. 
Ins.  Co.  29:  405,  126  N.  W.  801,  148  Iowa,  65. 

453.  An  agreement  by  which,  an  uncle  un- 
dertakes to  pay  the  premiums  on  policies  of 
insurance  to  be  taken  out  by  his  nephew  in 
his  own  name,  and  assigned  to  the  uncle 
with  the  privilege  of  redeeming  one  of  them, 
but  the  uncle  to  have  one  policy  absolutely, 
and  in  case  the  nephew  does  not  pay  the 
premiums  to  have  the  proceeds  of  both  upon 
the  nephew's  death,  is  void,  and  the  uncle 
cannot  compel  the  nephew's  administrator 
to  account  for  the  proceeds  of  the  policy 
after  he  has  collected  them.  McRae  v.  War- 
mack,  33:  949,  135  S.   W.  807,  98  Ark.   52. 

( Annotated ) 

454.  An  agreement,  by  which  one  half 
of  the  insurance  provided  for  in  a  life 
insurance  policy  was  assigned  and  trans- 
ferred by  the  insured  and  the  beneficiary 
to  one  having  no  insurable  interest  in  the 
life  of  the  insured,  upon  consideration  that 
the  assignee  was  to  pay  the  premiums  as 
they  accrued,  contrayenes  public  policy,  and 
neitlier  the  assignee  nor  the  beneficiary 
Digest   1-52  Ii.R.A.(N.S.) 


who  participated  in  the  tainted  transaction 
can  recover  upon  the  policy.  Metropolitan 
L.  Ins.  Co.  V.  Elison,  3:  934,  83  Pac.  410,  72 
Kan.  199.  (Annotated) 

455.  A  life  insurance  policy  procured  on 
the  understanding  that  the  insured  is  to 
secure  it,  and  for  a  consideration,  assign 
it  to  one  having  no  insurable  interest  in 
his  life,  who  is  to  pay  the  premiums  on 
it,  and  which  is  assigned  and  delivered  to 
the  latter  without  reaching  the  possession 
of  th.  insured,  is  void,  although  it  is  paya- 
able  to  the  estate  of  the  insured.  Bromley 
V.  Washington  L.  Ins.  Co.  5:  747,  92  S.  W. 
17,  122  Ky.  402. 

456.  An  assignee  of  a  life-insurance  pol- 
icy taken  out  under  an  agreement  that  the 
insurance  should  be  secured  and  the  policy 
assigned  to  one  having  no  insurable  inter- 
est, but  who  should  pay  the  premiums  on 
the  policy,  who  collects  the  proceeds  there- 
on, may  be  compelled  to  turn  them  over 
to  the  estate  of  the  insured  less  what  the 
policies  have  cost  him.  Bendet  v.  Ellis,  18: 
114,  111  S.  W.  795,  120  Tenn.  277. 

457.  One  has  the  right  to  procure  insur- 
ance on  his  own  life  and  assign  the  policy 
to  another  who  has  no  insurao'.e  interest 
in  the  life  insured,  provided  it  be  not  done 
by  way  of  cover  for  a  wager  policy.  Ry- 
lander.  v.  Allen,  6:  128,  53  S.  E.  1032,  125 
Ga.  206.  (Annotated) 

458.  The  holder  of  a  valid  policy  of  in- 
surance upon  his  own  life  may,  as  a  mat- 
ter of  financial  necessity,  make  a  valid  as- 
signment of  the  policy  to  a  person  having 
no  insurable  interest  in  the  life  of  the  in- 
sured, in  consideration  of  a  small  sum  of 
money  and  an  undertaking  to  pay  the  pre- 
miums due  and  to  become  due,  and  the  as- 
signee takes  the  entire  interest  in  the  pol- 
icy, as  against  the  personal  representatives 
of  the  insured.  Grigsby  v.  Russell,  36: 
642,  32  Sup.  Ct.  Rep.  58,  222  U.  S.  149,  56 
L.  ed.  133. 

Of  xirife;  interest. 

Right   to   change   beneficiary   of   certificate 

payable    to    wife,    see    infra,    469-472, 

475-477. 
Of  benefit  certificate. 

459.  The  transfer  of  the  beneficial  interest 
in  a  mutual-life  benefit  certificate  may  be 
enforced  in  equity  although  the  certificate 
is  not  assignable  at  law.  Ptacek  v.  Pisa, 
14:  537,  83  N.  E.  221,  231  111.  522. 

460.  A  beneficiary  in  a  mutual  benefit 
certificate  may  be  designated  by  will  where, 
by  statute,  the  benefit  may  be  made  pay- 
able to  a  legatee,  and  there  is  no  provision 
of  statute  or  articles  of  incorporation  or 
by-laws  of  the  association  which  prevents 
it,  and  the  beneficiary  designated  in  the 
application  according  to  the  provisions  of 
the  by-laws  is  dead.  Brinsmaid  v.  Iowa 
State  Traveling  Men's  Asso.  42:  1161,  132 
N.  W.  34,  152  Iowa,  134.  (Annotated) 

461.  A  will  is  not  an  attested  order  with- 
in the  meaning  of  a  provision  in  a  mutual 
benefit  certificate  making  the  fund  payable 
to  certain  designated  persons,  or  attested 
order,  where  the  statute  provides  that  a 
benefit  shall  not  be  assignable  except  to  the 


1574 


INSURANCE,  IV.  b. 


beneficiary's  name,  and  then  only  by  consent 
of  the  association,  "attested  by  its  seal 
and  the  signature  of  its  supreme  secretary 
and  its  supreme  executive  officer."  Mineola 
Tribe  No.  114,  I.  O.  E.  M.  v.  Lizer,  42:  1170, 
83  Atl.  149,  117  Md.  136. 
Requisites  of  assignment. 

462.  A  life  insurance  policy  payable  to 
the  legal  representatives  of  the  insured  may 
be  transferred  by  merg  delivery  without 
written  assignment.  Gledhill  v.  McCoombs, 
45:  26,  86  Atl.  247,  110  Me.  341. 

463.  A  written  assignment  of  an  insur- 
ance policy  to  trustees  to  be  named  in  the 
will  of  the  assignor  for  the  benefit  of  a 
certain  person  named,  which  is  not  wit- 
nessed as  required  by  statute  to  make  it  a 
valid  will,  is  not  eflfectual  to  transfer  title, 
where  no  delivery  is  made  to  anyone  to 
hold  for  the  trustees,  and  the  assignor  does 
not  manifest  an  intention  to  hold  for  him 
himself,  although  the  assignment  is  assent- 
ed to  by  the  beneficiary.  Frost  v.  Frost, 
27:  184,  88  N,  E.  446,  202  Mass.  100. 

(Annotated) 
Riglits  of  assignee. 
See  also  supra,  456,  458. 

464.  A  clause  in  a  policy  of  life  insurance 
that  any  claim  against  the  company  arising 
under  any  assignment  of  the  policy  shall 
be  subject  to  proof  of  interest  does  not 
diminish  the  rights  of  an  assignee  with  no 
insurable  interest,  as  against  the  personal 
representatives  of  the  insured,  if  there  is 
no  rule  of  law  to  that  effect,  and  the  com- 
pany sees  fit  to  pay.  Grigsby  v.  Russell, 
36:  642,  32  Sup.  a.  Rep.  58,  222  U.  S.  149, 
06  L.  ed.  133. 

465.  A  policy  of  life  insurance  taken  by  a 
man  upon  his  own  life  for  the  benefit  of  his 
sister  and  assigned  to  her  absolutely  may 
be  enforced  bv  her  whether  she  has  an  in- 
surable interest  in  his  life  or  not.  Re 
Phillips,  45:  982,  86  Atl.  289,  238  Pa.  423. 

466.  One  who  has  paid  the  premiums  of 
an  insurance  policy  upon  another's  life, 
under  an  agreement  for  an  assignment  of 
the  policy,  may,  in  case  the  assignment  is 
annulled  as  contrary  to  public  policy,  re- 
cover the  premiums  paid.  McRae  v.  War- 
mack,  33:  949,  135  S.  W.  807,  98  Ark.  52. 

467.  The  marriage  of  one  insured  in  a 
fraternal  benefit  order  does  not  render  null 
and  void  the  designation  of  his  father  as 
beneficiary,  and  substitute  his  wife,  where 
the  designation  is  still  a  legal  one  at  the 
time  of  the  death  of  the  insured.  Vanasek 
V.  Western  Bohemian  Fraternal  Asso.  49: 
141,  142  N.  W.  333,  122  Minn.  273. 

ft.   Change  of  heneficiary. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Who  may  be  designated  as  beneficiary,  see 
shpra,  II.  d. 

Waiver   or   estoppel   as   to,   see  infra,   551. 

Vested  right  to  dispose  of,  and  control  pol- 
icy, see  Constitutional  Law,  62. 

Digest   1-52  L.R.A.(N.S.) 


Statute  permitting  change  of  beneficiary  in 
case  of  divorce,  see  Constitutional 
Law,  63. 

Breach  of  agreement  by  beneficiary  as  jus- 
tifying change,  see  Contracts,  762. 

Power  of  equity  to  give  effect  to  attempted 
change  of  beneficiary,   see  Equity,  30. 

Who  may  enforce  promise  of  beneficiary 
made  in  consideration  of  insured's  for- 
bearance to  change  beneficiary,  see  Par- 
ties, 78. 

Who  may  enforce  agreement  not  to  change 
beneficiary,  see  Parties,  79. 

468.  The  act  of  one  insured  in  a  fraternal 
benefit  society  in  delivering  tjje  certificate 
to  his  wife,  together  with  his  expression 
at  some  time  and  to  some  persons  of  his 
desire  to  make  her  the  beneficiary,  does  not 
operate  as  a  matter  of  law  to  substitute 
her  as  his  beneficiary  in  place  of  the  father, 
who  had  been  designated  as  beneficiary  prior 
to  the  marriage,  where  the  by-laws  of  the 
order  require  an  application  for  a  change 
of  beneficiary  and  a  return  of  the  certificate, 
and  the  payment  of  a  fee  of  50  cents  in 
order  to  effect  such  change,  and  no  attempt 
is  made  by  the  insured  to  comply  with  these 
conditions.  Vanasek  v.  Wester  Bohemian 
Fraternal  Asso.  49:  141,  142  N.  W.  333,  122 
Minn.  273.  (Annotated) 

469.  Where,  in  the  part  performance  of 
an  antenuptial  contract,  a  husband  procures 
a  change  in  a  certi.Ica,te  of  insurance  in 
which  his  children  were  the  sole  beneficia- 
ries, so  as  to  make  his  wife  an  eqaal  bene- 
ficiary with  the  children,  and  where  she 
has  fully  executed  the  antenuptial  contract 
on  her  part,  she  thereby  obtains  an  equi- 
table interest  in  the  certificate,  and  he  can- 
not thereafter,  without  her  consent,  sur- 
render the  certificate  and  obtain  the  issu- 
ance of  a  new  one  in  which  a  third  party 
is  named  as  the  sole  beneficiary,  and  thus 
devest  her  of  her  interest  in  the  certificate, 
which  was  procured  pursuant  to  such  con- 
tract. Supreme  Lodge  K.  of  P.  v.  Ferrell, 
33:  777f    112    Pac.    155,   83    Kan.    491. 

470.  Where  a  husband  agrees  that,  if 
his  wife  will  help  to  pay  the  assessments 
upon  a  certificate  in  a  mutual  benefit  as- 
sociation in  her  favor,  he  will  not  change 
the  beneficiary,  and  in  consequence  of  such 
agreement  she  makes  a  part  of  the  pay- 
ments thereon,  using  for  the  purpose  what 
are  in  fact  the  proceeds  of  her  own  labor 
outside  of  her  ordinary  household  duties, 
she  cannot  be  displaced  as  such  beneficiary 
without  her  consent,  notwithstanding  she 
commingles  her  earnings  with  those  of  her 
husband  as  soon  as  received,  keeping  no 
separate  account  thereof,  and  then  takes 
the  money  for  the  assessments  from  the 
common  fund.  Savage  v.  Modern  Woodmen  . 
of  America,  33:  773,  113  Pac.  802.  84  Kan. 
63. 

471.  Where  the  designation  of  the  bene- 
ficiary in  a  certificate  issued  by  a  mutual 
benefit  association  is  made  in  pursuance 
of  an  agreement  founded  upon   a  sufficient 


INSURANCE,  V.  a. 


1575 


consideration,  the  person  so  designated  ac- 
quires a  vested  interest,  and  unless  by  rea- 
son of  countervailing  equities  cannot  be  dis- 
placed, although  the  rules  of  the  order  per- 
mit the  member  to  change  the  beneficiary 
at  will.  Savage  v.  Modern  Woodmen  of 
America,  33:  773,  ]]3  Pac.  802,  84  Kan. 
<j3.  ( Annotated ) 

472.  The  rule*  that  one  who  insures  his 
own  life  for  the  benefit  of  another  and  pays 
the  premiums  himself  may  at  any  time  dis- 
pose of  the  property  without  the  consent 
of  the  beneficiary  is  changed  so  far  as  the 
right  of  a  husband  to  change  the  beneficiary 
of  a  policy  payable  to  his  wife  is  concerned, 
by  a  statute  providing  that  a  policy  as- 
signed to  or  made  payable  to  a  married 
woman,  or  to  a  trustee  for  her  benefit,  shall 
be  her  sole  and  separate  property,  free  from 
the  control,  disposition,  or  claims  of  her 
husband.  Boehmer  v.  Kalk,  49:  487,  144 
N.  W.  182,  ]55  Wis.  156. 

473.  A  member  of  a  mutual-benefit  asso- 
ciation who  procured  a  certificate  designat- 
ing a  certain  person  as  a  beneficiary  pursu- 
ant to  an  agreement  with  her  and  upon  a 
consideration  moving  from  her  was  pre- 
cluded, as  against  her,  from  exercising  the 
privilege  ordinarily  possessed  by  members 
of  such  association,  of  changing  beneficiaries 
as  often  as  desired,  notwithstanding  that 
the  member,  Leing  unable  to  procure  the 
surrender  of  the  certificate  by  the  beneficiary 
to  whom  it  had  been  delivered,  had,  pursu- 
ant to  a  by-law  of  the  association,  made  ap- 
plication for  the  issuance  of  a  new  certifi- 
cate without  the  surrender  of  the  old,  and 
had  been  informed  that  his  application 
would  doubtless  be  passed  upon  favorably 
if  he  would  forward  an  indemnity  bond,  he 
having  died  before  complying  with  such  re- 
quirement. Stronge  v.  Supreme  Lodge,  K. 
of  P.  12:  1206,  82  N.  E.  433,  189  N.  Y.  346. 

(Annotated) 

474.  The  rights  of  a  beneficiary  named 
in  a  certificate  of  insurance  in  no  wise  de- 
pend upon  the  possession  thereof  by  the 
beneficiary.  Supreme  Lodge  K.  of  'p  v. 
Ferrell,  33:  777,  112  Pac.   155,  83  Kan.  491. 

475.  A  statute  providing  for  a  change  of 
beneficiary  in  case  of  a  life  insurance  policy 
in  favor  of  a  married  woman  upon  her  hus- 
band's life  in  the  event  of  'che  divorcement 
of  the  wife  before  the  husband's  death  does 
not  apply  where  the  policy  is  for  the  benefit, 
not  only  of  the  wife,  but  of  the  children  of 
the  parties.  Blum  v.  Nev/  York  L.  Ins.  Co. 
8:  923,  95  S.  W.  317,  197  Mo.  513. 

476.  That  the  children  of  the  marriage  are 
given  an  interest  in  a  policy  of  insurance 
on  the  husband's  life,  in  which  the  wife  is 
named  as  beneficiary,  only  in  the  event  of 
the  death  of  the  wife  before  the  husband, 
does  not  take  them  out  of  the  rule  that  a 
statute  providing  for  change  of  beneficiary 
in  a  policy  on  a  man's  life  in  favor  of  his 
wife,  in  case  of  her  divorcement,  has  no  ap- 
plication where  tho  policy  is  also  for  the 
benefit  of  other  parties.  Blum  v.  New  York 
L.  Ins.  Co.  8:  923,  95  S.  W.  317.  197  Mo.  513. 

477.  The  granting  of  a  divorce  does  not 
Digest  1-52  L.R.A.(N.S.) 


bring  an  existing  insurance  policy  in  favor 
of  the  wife  upon  the  life  of  the  husband 
within  the  rule  requiring  insurable  interest 
to  support  a  life  insurance  policy,  so  as  to 
destroy  the  vested  riglit  of  tlie  wife,  and 
render  the  policy  subject  to  a  subsequently- 
enacted  statute  permitting  cliange  of  bene- 
ficiary in  cases  of  policies  in  favox  of  a  wife 
when  a  divorce  is  granted.  Blum  v.  New 
York  L.  Ins.  Co.  8:  923,  95  S.  W.  317,  197 
Mo.  513. 

478.  Death  within  the  lifetime  of  the  in- 
sured terminates  the  interest  of  the  bene- 
ficiary of  life  insurance  policies,  and  leaves 
the  insured  free  to  make  other  disposition 
of  the  policy.  '  Smith  v.  Metropolitan  L. 
Ins.  Co.  20:  928,  71  Atl.  11,  222  Pa.  226. 

F.  Waiver;  estoppel. 

M.  Of  insured  or  beneficiary. 

(See   also   same   heading  in  Digest   L.R.A. 

.      1-10.) 

See  also  infra,  556,  647. 

479.  Retention  of  a  fire  insurance  policy, 
the  notes  executed  for  the  premium  of 
which  are  void  because  executed  on  Sun- 
day, constitutes  a  ratification,  which  wil). 
preclude  taking  advantage  of  the  illegality. 
Planters'  F.  ins.  Co.  v.  Ford,  44:  289,  153 
S.  W.  810,  106  Ark.  568.  (Annotated) 

480.  Failure  of  an  illiterate  man  to  dis- 
cover for  five  months  that  an  insurance 
agent  has  not  complied  with  his  agreement 
to  furnish  a  particular  kind  of  policy  is 
not  such  laches  as  will  prevent  his  repudiat- 
ing the  premium  notes  when  suit  is  brought 
to  enforce  them.  Summers  v.  Alexander, 
38:  787,  120  Pac.  601,  30  Okla.  198. 

(Annotated) 

481.  The  wife  of  a  member  of  a  mutual 
benefit  society  who  has  been  absent  and  un- 
heard from  for  more  than  seven  years  is  not 
estopped  by  the  fact  that  she  instituted  a 
suit  for  divorce  against  him  on  the  ground 
of  desertion,  for  the  purpose  of  securing  a 
marketable  title  to  property  standing  in  his 
name,  from  claiming  in  a  suit  upon  the  cer- 
tificate, that  he  died  before  the  institution 
of  the  divorce  proceedings, — at  least  where 
the  society  is  not  sho.wn  to  have  been  injured 
by  her  conduct.  Butler  v.  Supreme  Court,  I. 
0.  F.  26:  293,  101  Pac.  481,  53  Wash.  118. 

482.  The  right  of  insured,  after  receiving 
notice  from  the  insurer  of  cancelation  of  the 
policy,  to  treat  the  same  as  in  full  force  and 
effect  until  the  company  has  paid  or  ten- 
dered to  him  the  unearned  premium,  under 
the  clause  of  the  New  York  standard  policy 
of  fire  insurance  providing  that  the  policy 
may  be  canceled  by  the  company  by  giving 
five  days'  notice  of  cancelation,  but  that  the 
unearned  portion  of  the  premium  shall  be 
returned  upon  surrender  of  the  policy,  is 
waived  by  his  voluntary  and  unconditional 
surrender  of  the  policy  upon  receiving  the 
notice  of  cancelation.  Buckley  v.  Citizens' 
Ins.  Co.  13:  889,  81  N.  E.  165,  188  N.  Y.  399. 

(Annotated) 


1576 


INSURANCE,  V.  b,  1. 


By  proofs  of  loss. 

483.  The  beneficiary  claiming  to  recover 
on  a  mutual  benefit  certificate  is  not  de- 
prived of  tlie  benefit  of  testimony  that  the 
member  was  not  addicted  to  the  use  of 
narcotics,  by  the  fact  that  in  the  proof 
of  loss  she  stated  that  she  thought  he 
was,  where  she  explains  this  by  saying 
that  at  one  time  she  found  a  powder 
in  his  room  which  a  druggist  said  was 
morphine.  Snyder  v.  Supreme  Ruler, 
F.  M.  C.  45:  209,  122  S.  W.  981,  122  Tenn. 
248. 

d.   Of  insurer. 
1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A, 
1-10.) 

Waiver  of  arbitration,  see  infra,  653-655, 
663. 

Estoppel  to  dispute  face  of  policv,  see  infra, 
788. 

Waiver  of  time  for  bringing  suit  on  em- 
ployers' liability  policy,  see  infra,  933. 

Parol  evidence  to  show  estoppel,  see  Evi- 
dence, 917,  1379. 

Admission  of  evidence  on  question  of,  see 
Evidence,  869,  1623,  1923,  1944. 

Sufficiency  of  evidence  to  establish  waiver, 
see  Evidence,  2332. 

Necessity  of  pleading  waiver  or  estoppel, 
see  Pleading,  200,  503. 

Sufficiency  of  pleading  of  waiver,  see  Plead- 
ing, 445. 

Question  for  jurv  as  to,  see  Tbial,  652, 
653. 

See  also  supra,  132,  142,  381,  393. 

484.  \^here  in  an  action  on  a  policy  of 
life  insurance  the  insurer  denies  liability 
on  the  ground  of  misstatements  in  the 
proposal  for  insurance,  the  mere  fact  that 
the  plaintiH'.  instead  of  confining  his  evi- 
dence to  the  disproof  of  the  proposal  al- 
leged by  che  insurer  to  have  been  made, 
])roves  that  lie  signed  or  authorized  the 
signing  of  no  proposal  at  all,  does  not  pre- 
vent him  from  taking  advantage  of  the 
estoppel  of  the  insurer,  by  its  recital  in  the 
policy  that  there  was  a  proposal,  and  by 
its  acceptance  of  the  premiums,  to  contend 
that  in  consequence  of  the  want  of  a  pro- 
posal there  was  no  contract.  Pearl  Life 
Assur.  Co.  V.  Johnson,  4  B.  R.  C.  460, 
[1909]  2  K.  B.  288.  Also  Reported  in  78 
L.  J.  K.  B.  N.  S.  777,  100  L.  T.  N.  S.  483, 
73  J.  P.  216. 

485.  A  mutual  insurance  company  doing 
business  on  the  assessment  plan  is  estopped 
to  deny  the  validity  of  the  policy  because 
of  a  matter  affecting  the  substance  of  the 
contract,  by  the  assurance  of  the  agent 
receiving  the  application  that  such  matter 
would  make  no  difference.  McCarty  v. 
Piedmont  Mut.  Ins.  Co.  18:  729,  62  S.  E.  1, 
81   S.  C.   152. 

486.  It  is  always  open  for  the  insured  to 
show  a  waiver  of  the  conditions  contained 
in  a  policy  of  fire  insurance,  or  a  course  of  : 
conduct  on  the   part   of  the   insurer   which 
Digest   1-52  L.R.A.(N.S.) 


I  gave  him  just  and  reasonable  ground  to  In 
fer  that  a  forfeiture  would  not  be  exacted.. 
Gish  V.  Insurance  Co.  of  X.  A.    13:  826,  87 
Pac.  869,  IG  Ok  la.  59. 

487.  A  condition  in  a  policy  of  life  in- 
surance that  it  shall  be  void  if  premiums 
are  not  paid  when  due  means  only  that  it 
shall  be  voidable  at  the  option  of  the  com- 
pany, and  a  breach  of  the  cyndition  may  be 
waived.  Grigsby  v.  Russejl,  36:  642,  32  Sup. 
Ct.  Rep.  58,  222  U.  S.  149,  56  L.  ed.  133. 

488.  An  insurance  company  is  estopped  to 
repudiate  the  announcement  of  its  agent 
that  an  application  has  been  accepted,  if 
the  applicant  while  reh'ing  thereon,  dies  or, 
by  reason  of  intervening  sickness,  has  be- 
come incapable  of  securing  other  insurance. 
Kimbro  v.  New  York  L.  Ins.  Co.  12:  421,  108 
N.  W.  1025,  134  Iowa,  84. 

489.  That  a  letter  from  an  insurer  waiving 
a  forfeiture  for  nonpayment  of  a  premium 
note  is  not  received  or  read  by  the  insured 
before  his  death  does  not  destroy  its  effect 
as  a  waiver.  New  England  Mut.  L.  Ins. 
Co.  v.  Springgate,  19:  227,  112  S.  W.  681, 
129  Ky.  627. 

490.  A  form  of  policy  of  fire  insurance, 
although  prescribed  by  law,  is,  when  is- 
sued by  the  insurance  company,  none  the 
less  a  contract,  and  is  to  be  construed  as 
such;  and  while  the  fact  that  it  is  a  stand- 
ard form  may  affect  a  question  of  pure 
waiver,  it  does  not  abrogate  the  doctrint. 
of  estoppel,  especially  where  it  is  provided 
by  statute  that  policies  in  the  standard 
form  shall  be  subject  to  the  same  rules  of 
construction  as  to  their  effect,  or  the  waiv- 
er of  any  of  their  provisions,  as  if  the  form 
thereof  had  not  been  presc-ibed.  Leisen  v. 
St.  Paul  F.  &  M.  Ins.  Co.  30:  539,  127  N.  W. 
837,  20  N.  D.  316. 

491.  A  foreign  insurance  company  which 
makes  a  contract  of  insurance  with  a  resi- 
dent of  the  state  of  Wisconsin  without  hav- 
ing complied  with  Wis.  Stat.  1898,  §  1978, 
so  as  to  make  it  competent  to  do  business 
within  the  state,  is  estopped  from  setting 
up  that  its  contract  with  the  insured  was 
made  in  violation  of  the  statute,  in  order  to 
avoid  liability  on  the  policy,  where  the  in- 
sured participated  in  the  transaction  with- 
out knowledge,  actual  or  constructive,  of  the 
fact  that  the  company  had  not  complied 
with  the  law.  Corbett  v.  Phvsicians' 
Casualty  Asso.  16:  177,  115  N.  W.  365,  13& 
Wis.  505. 

492.  The  principle  of  waiver  and  estoppel 
applies  in  case  of  fraternal  or  lodge  insur- 
ance. Trotter  v.  Grand  Lodge,  I.  L.  of  H. 
7:  569,  109  N.  W.  1099.  132  Iowa,  513. 

493.  The  doctrines  of  waiver  and  estoppel 
apply  to  mutual  insurance  companies  doing 
business  on  the  assessment  plan.  McCarty 
V.  Piedmont  Mut.  Ins.  Co.  18:  729,  62  S.  E. 
1,   81    S.   C.   152. 

494.  A  provision  that  the  conditions  of  an 
insurance  policy  shall  not  be  waived  except 
by  writing,  attached  to  the  policy,  may  it- 
self be  waived  so  as  to  render  a  verbal  waiv- 
er of  the  conditions  binding.  Phenix  Ins. 
Co.  V.  Grove,  25:  i,  74  N.  E.  141,  215  IlL 
299. 


INSURANCE,  V.  b,  2. 


1577 


495.  Tender  to  the  beneficiary,  after  the 
•death  of  the  insured,  of  the  amount  of 
premiums  received  on  a  policy  issued  in  vio- 
lation of  a  condition  therein  the  receipt  of 
•which  waived  the  breach  of  condition,  does 
not  relieve  the  insurer  from  the  effect  of  its 
waiver,  so  as  to  absolve  it  from  liability  on 
the  policy.  Monahan  v.  Mutual  L.  Ins.  Co. 
5:  759,  63  Atl.  211,  103  Md.  145. 

2.  Knowledge  or  notice. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Presumption  and  burden  of  proof  as  to 
agent's  knowledge,  see  Evidence,  199. 

See  also  supra,  39;  infra,  V.  b,  5,  c,  548, 
552,  575,  603, 

490.  Mere  knowledge,  by  an  insurance 
<X)mpany,  of  facts  constituting  a  forfeiture 
of  a  policy,  does  not  amount  to  a  waiver 
thereof,  although  a  demand  for  overdue  pre- 
miums is  made  on  the  insured,  if  he  does  not 
comply  with  the  demand.  Foreman  v.  Ger- 
man Alliance  Ins.  Co.  3:  444,  52  S.  E.  337, 
104  Va.  694. 

497.  A  waiver  by  an  insurer  of  a  condi- 
tion after  the  receipt,  from  the  wife  of  the 
insured,  of  knowledge  of  the  facts  upon 
which  its  conduct  is  based,  is  as  binding  as 
though  the  information  had  been  given  by 
the  insured.  Rundell  v.  Anchor  F.  Ins.  Co. 
25:  20,  105  N.  W.  112,  128  Iowa,  575. 

498.  The  rule  that  want  of  knowledge  on 
the  part  of  a  property  owner  of  a  violation 
by  his  tenant  of  the  provisions  of  a  pol- 
icy of  insurance  on  the  property  will  not 
prevent  a  forfeiture  of  the  policy  has  no 
application  where  the  act  was  with  the 
knowledge  and  consent  of  the  agents  of  the 
insurer.  German  American  Ins.  Co.  v.  Hy- 
man,  16:  77,  94  Pac.  27,  42  Colo.  156. 

499.  A  transfer  of  an  insurance  policy  to 
cover  the  goods  at  a  place  other  than  that 
where  they  were  located  when  it  was  orig- 
inally written,  with  knowledge  that  an  in- 
ventory has  not  been  taken,  waives  a  pro- 
vision in  the  policy  requiring  such  in- 
ventory. Day  V.  Home  Ins.  Co.  40:  652,  58 
So.  549,  177  Ala.  600. 

500.  An  insurance  company  cannot  take 
advantage  of  a  condition  in  its  policy  to 
avoid  payment  of  a  loss  when  the  facts 
which,  by  its  terms,  invalidate  the  policy, 
were  known  to  it  or  its  agent  when  it  is- 
sued the  policy;  but  this  rule  has  no  appli- 
cation when  the  facts  were  not  known,  since 
what  is  not  known  cannot  be  waived.  R6 
Millers'  &  M.  Ins.  Co.  4:  231,  106  N.  W.  485, 
97  Minn.  98. 

501.  A  policy  issued  upon  an  application 
fltating  the  title  to  the  land  on  which  the 
building  is  situated  to  be  a  lease  is  not 
avoided  by  a  provision  in  the  policy  that  it 
shall  be  void  if  the  land  is  not  owned  by 
the  insured  in  fee  simple.  Duncan  v.  Na- 
tional Mut.  F.  Ins.  Co.  20:  340,  98  Pac.  634, 
44   Colo.   472. 

502.  Breach'  of  warranty  of  a  statem.ent 
<jf  title  in  an  application  for  insurance  is 
Digest   1-52  I,.R.A.(N.S.) 


waived  if  the  facts  are  presented  to  the 
agent,  and  he  concludes  that  the  facts  es- 
tablish the  title  stated,  upon  ^'hich  con- 
clusion the  statement  is  inserted  in  the 
application.  Duncan  v.  National  Mut.  F. 
Ins.  Co.  20:  340,  98  Pac.  634,  44  Colo.  472. 

503.  Knowledge  on  the  part  of  the  agent 
of  an  insurance  company  after  a  policy  has 
been  issued,  of  a  change  in  title  of  the  in- 
sured sufficient  to  work  a  forfeiture  of  the 
policy,  will  not  estop  the  insurer  from  tak- 
ing advantage  of  it,  since  he  was  under 
no  duty  to  take  any  action  by  reason  there- 
of, unless  requested  to  do  so  by  the  as- 
sured. Moller  v.  Niagara  F.  Ins.  Co.  24: 
807,  103  Pac.  449,  54  Wash.  439. 

504.  Notice  to  insurance  agents  when  try- 
ing to  cancel  a  policy  shortly  before  a  loss, 
and  months  after  a  change  in  ownership,  of 
the  property,  that  there  had  been  "some 
changes,"  without  anything  to  show  wheth- 
er in  ownership  or  physical  conditions,  is 
not  sufficient  to  charge  them  with  notice 
of  or  assent  to  a  change  of  ownership,  so 
as  to  waive  a  forfeiture  on  that  account. 
American  Steam  Laundry  Co.  v.  Hamburg 
Bremen  F.  Ins.  Co.  21:  442,  113  S.  W.  394, 
121  Tenn.  13. 

505.  Notice  to  brokers  who  procure  insur- 
ance on  property  of  change  in  ownership  is 
not  sufficient  to  charge  the  insurer  there- 
with. American  Steam  Laundry  Co.  v.  Ham- 
burg Bremen  F.  Ins.  Co.  21:  442,  113  S.  W. 
394,  121  Tenn.  13. 

506.  Notice  and  knowledge  of  the  exist- 
ence of  a  vacancy  in  the  insured  premises, 
or  of  the  occurrence  of  a  fire  in  the  same  to 
such  an  extent  as  to  make  them  uninhabit- 
able, communicated  to  the  local  agent  of  an 
insurance  company  authorized  to  issue  poli- 
cies and  transact  the  usual  business  of  a 
recording  agency,  is  the  knowledge  of  the 
insurance  company.  Schmidt  v.  Williams- 
burgh  City  F.  Ins.  Co.  51:261,  144  N.  W. 
1044,  95  Neb.  43. 

507.  A  policy  providing  that  it  shall  be 
void  if  the  building  "be  or  become  vacant 
or  unoccupied"  cannot  be  varied  by  parol 
evidence  that  the  insurance  agent  issued  the 
policy  with  full  knowledge  that  the  use  of 
the  building  for  normal  school  purposes 
had  been  absolutely  suspended  by  those 
who  had  been  conducting  it.  Connecticut 
F.  Ins.  Co.  V.  Buchanan,  4:  758,  141  Fed. 
877,  73  C.  C.  A.  111.  (Annotated) 

508.  Waiver  of  increase  of  hazard  in  case 
of  insurance  on  a  woolen  mill  by  devoting 
it  to  the  manufacture  of  cotton  bats  is  not 
shown  by  the  mere  fact  that  the  agent  of 
the  insurer  inspected  the  building  at  the 
time  of  issuance  of  the  policy.  Progress' 
Spinning  &  Knitting  Mills  Co.  v.  Southern 
Nat.  Ins.  Co.  45:  122,'  130  Pac.  63,  42  Utah, 
263. 

509.  Where  an  agent  of  an  insurance  com- 
pany sends  a  solicitor  to  inspect  a  risk 
and  take  a  written  application  for  insur- 
ance, and  upon  the  application  issues  a  pol- 
icy, the  company  is  bound  by  knowledge  of 
the  solicitor  of  the  fact  that  gasolene  is 
being   used    on    the    premises,   and    will    be 


1578 


INSURANCE,  V.  b,  3. 


presumed  to  have  waived  a  condition  in  the 
policy  forbidding  such  use.  Cue  v.  Con- 
necticut F.  Ins.  Co.  44:  1218,  130  Pac.  664, 
89  Kan.  90. 

510.  The  mere  suggestion  to  an  insurance 
agent  that  other  insurance  may  be  secured 
upon  the  property  will  not  estop  the  in- 
surer from  contesting  the  validity  of  the 
policy  issued  by  it  if  other  insurance  is 
obtained  contrary  to  the  terms  of  its  policy, 
if  neither  it  nor  its  agent  had  notice  that 
additional  insurance  was  in  fact  obtained. 
Carleton  v.  Patrons'  Androscoggin  Mut.  F. 
Ins.  Co.  39:  951,  82  Atl.  649,  109  Me.  70. 

511.  Notice  to  an  insurer  or  its  agent  for 
receiving  such  notice,  of  additional  insur- 
ance, and  its  failure  to  object  or  cancel  the 
policy  because  thereof,  is  a  waiver  of  a  pro- 
vision in  the  policy  rendering  it  void  in  case 
of  such  additional  insurance  unassented  to 
in  writing  by  the  insurer.  Phenix  Ins.  Co. 
v.  Grove,  25:  i,  74  N.  E.  141,  215  111.  299. 

(Annotated) 

512.  If  answers  in  an  application  for 
mutual  benefit  insurance  were  made  in  good 
faith'  under  advice  of  the  agent  and  physi- 
cian of  the  insurer,  without  intention  to 
deceive,  the  insurer  cannot  avoid  the  i^olicy 
because  of  their  falsity,  although  it  put  in 
the  policy  a  provision  that  the  agent  and 
physician  should  be  regarded  as  agents  of 
the  insured.  Masonic  L.  Asso.  v.  Robinson, 
41:  505,  147  S.  W.  882,  149  Ky.  80. 

( Annotated ) 

513.  Personal  knowledge  of  the  presiding 
officer  of  a  subordinate  lodge  of  a  mutual 
benefit  association,  acquirec^.  by  observation, 
that  one  of  the  members  has  by  the  intem- 
perate use  of  alcoholic  drinks  violated  the 
by-lav  J  of  the  association  and  forfeited  his 
rights  under  a  benefit  certificate,  is  suffi- 
cient notice  to  the  association  of  the  fact. 
Modern  Woodmen  of  America  v.  Brccken- 
ridge,  10:  136,  89  Pac.  601,  75  Kan.  373. 

514.  Communication  of  the  true  age  of  an 
applicant  for  membership  in  a  mutual  bene- 
fit society  to  the  order  will  not  be  pre- 
sumed from  the  fact  that  it  was  communi- 
cated to  the  agent  organizing  the  local  lodge, 
where,  to  secure  the  requisite  membership, 
the  organizer  conspired  with  the  applicant 
to  work  him  in,  although  he  was  over  age. 
Elliott  v.  Knights  of  Modern  Maccabees,  13: 
856,  89  Pac.  929,  46  Wash.  320. 

515.  Knowledge  by  the  soliciting  agent  of 
an  insurance  company,  who  is  charged  with 
no  duty  as  to  receiving  an  application  for 
insurance,  and  who  was  not  present  when 
the  application  was  prepared,  that  an  ap- 
plicant is  in  infirm  health,  will  not  estop 
the  company  from  taking  advantage  of 
misrepresentations  as  to  such  fact,  made  to 
the  agent,  who,  in  accordance  with  his  duty, 
actually  received  the  application.  Haapa  v. 
Metropolitan  L.  Ins.  Co.  16:  1165,  114  N. 
W.  380,  150  Mich.  467. 

516.  The  knowledge  of  the  soliciting  agent 
of  an  insurance  company,  who  took  an  appli- 
cation, of  the  falsity  of  a  material  answer 
therein,  is  not,  in  the  absence  of  any  fraud 
or  misrepresentation  as  to  his  authority  to 
waive  the  conditions  of  the  application,  im- 
Digest  1-52  L..R.A.(N.S.) 


putable  to  the  company,  so  as  to  constitute 
a  waiver,  where  the  application  warranted 
the  answer  to  be  true,  and  expressly  de- 
clared that  only  the  officers  at  the  home  of- 
fice had  authority  to  determine  whether  a 
policy  should  issue,  and  that  they  a/'t/^d  on 
the  written  answers  and  warranties,  and 
that  no  statements,  promises,  or  informa- 
tion, made  or  given  by  or  to  the  person 
soliciting  or  taking  the  application,  should 
be  binding  on  the  company,  or  in  any  man- 
ner affect  its  rights,  unless  reduced  to  writ- 
ing and  presented  to  the  officers  of  the  com- 
pany at  the  home  office;  nor  is  the  company 
chargeable  with  such  knowledge  because  the 
soliciting  agent  communicated  it  to  his  im- 
mediate superior,  also  a  soliciting  agent, 
who  did  not  communicate  the  fact  to  the 
general  agent,  or  any  other  agent  or  officer 
of  the  company.  Iverson  v.  Metropolitan  L. 
Ins.  Co.  13:  866,  91  Pac.  609,  151  Cal.  746. 

(Annotated) 

517.  Knowledge  of  local  insurance  agents 
as  to  the  condition  of  a  risk  upon  which 
they  issue  policies,  the  property  belonging 
to  a  corporation  of  which  they  are  directors 
and  large  stockholders,  which  fact  was  not 
known  to  the  insurer  or  its  general  agent, 
is  not  chargeable  to  the  insurer.  Home  Ins. 
Co.  v.  North  Little  Rock  Ice  &  E.  Co.  23: 
1201,  111  S.  W.  994,  86  Ark.  538. 

518.  An  insurance  company  whose  agent 
is  cashier  of  a  bank,  on  the  property  of 
which  he  has  issued  a  policy  containing 
a  provision  against  additional  insurance,  is 
not  charged  with  his  knowledge  in  case  he 
violates  such  provision  by  securing  addi- 
tional insurance  on  the  bank  property.  First 
Nat.  Bank  v.  German  American  Ins.  Co. 
38:  213,  134  N.  W.  873,  23  N.  D.  139. 

519.  An  insurance  company  is  not  charged 
with  notice  that  payment  of  the  first  pre- 
mium on  a  policy  was  effected  in  part  by 
a  release  of  the  agent's  commission  to  the 
applicant.  Union  C.  L.  Ins.  Co.  v.  Robin- 
son, 8:  883,  148  Fed.  358,  78  C.  C.  A.  268. 

520.  A  man  who,  knowing  that  his  wife 
has  heart  disease  which  is  likely  to  cause 
her  sudden  death,  procures  insurance  on 
her  life  for  his  own  benefit,  cannot  urge  an 
estoppel  on  the  part  of  the  insurer  to  assert 
ignorance  of  such  fact  because  of  knowledge 
on  the  part  of  its  agent.  Haapa  v.  Metro- 
politan L.  Ins.  Co.  16:  1165,  114  N.  W.  380, 
150  Mich.  467. 

3.    Estoppel   or   waiver   as   affected    by 
power  of  agent. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

As  to  powers  of  agents  generally,  see  supra, 
40^7. 

Admissibility  of  evidence  of  agent's  knowl- 
edge to  show  waiver,  see  Evidence,  921. 

See  also  supra,  412;  infra,  548,  585. 

521.  In  an  action  on  a  fire  insurance  poli- 
cy, where  the  insured  relies  upon  a  waiver 
of  the  conditions  in  the  policy,  he  must  show 

AW. Of  fl 


INSURANCE,  V.  b,  3. 


1579 


that  the  insurer,  with  knowledge  of  the 
facts  that  occasioned  the  forfeiture,  dis- 
pensed with  the  observance  of  the  condi- 
tions; and  where  the  waiver  relied  on  is  the 
act  of  an  agent,  he  must  show,  either  that 
the  agent  had  express  authority  from  the 
insurer  to  make  the  waiver,  or  that  the  in- 
surer subsequently,  with  knowledge  of  the 
facts,  ratified  the  action  of  the  agent.  Gish 
V.  Insurance  Co.  of  N.  A.  13:  826,  87  Pac. 
869,  16  Okla.  59. 

522.  If  a  waiver  of  tlie  stipulations  and 
conditions  contained  in  a  policy  of  fire  in- 
surance relied  upon  is  the  act  and  conduct 
of  an  agent  of  the  insurance  company,  it 
must  be  shown  that  the  agent  had  express 
authority  from  the  company  to  make  Jie 
waiver,  or  that  the  company  subsequently, 
with  the  knowledge  of  the  facts,  ratified  the 
unautnorized  action  of  the  agent.  Deming 
Invest.  Co.  v.  Shawnee  F.  Ins.  Co.  4:  607, 
83. Pac.  918,  16  Okla.  1. 

523.  A  stipulation  in  a  fire  insurance  poli- 
cy, that  no  officer,  agent,  or  other  repre- 
sentative of  the  company  shall  have  the 
power  to  waive  any  condition  or  provision 
of  the  policy,  unless  such  waiver  shall  be 
written  upon  or  attached  thereto,  is  valid 
and  constitutes  the  measure  of  their  power. 
Gish  V.  Insurance  Co.  of  N.  A.  13:  826,  87 
Pac.  869,  16  Okla.  59.  (Annotated) 

524.  The  agent  of  an  insurance  company 
cannot,  by  oral  contract  with  the  assured, 
waive  the  express  terms  of  the  policy,  and 
extend  the  time  for  a  premium,  where  the 
policy  provides  that  none  of  its  terms  can 
be  varied  o-  modified  or  any  forfeiture 
waived,  or  premiums  in  arrears  received,  ex- 
cept by  agreement  in  writing,  signed  by  the 
president,  vice  president,  secretary,  or  as- 
sistant secretary,  whose  authority  for  that 
purpose  cannot  be  delegated.  McElroy  v. 
Metropolitan  L.  Ins.  Co.  23:  968,  122  N.  W. 
27,  84  Neb.  866. 

525.  Restrictions  in  a  policy  of  fire  insur- 
ance limiting  the  power  of  agents  to  waive 
conditions  except  in  a  certain  manner  do 
not  apply  to  those  conditions  which  relate 
to  the  inception  of  the  contract,  where  the 
agent,  with  full  knowledge  of  the  facts,  is- 
sues the  policy  and  collects  the  premium, 
and  the  insured  has  acted  in  good  faith. 
Leisen  v.  St.  Paul  F.  &  M.  Ins.  Co.  30:  539, 
127  N.  W.  837,  20  N.  D.  316. 

526.  An  insurance  company  is  estopped 
from  disputing  the  truth  of  answers  in  an 
application  prepared  by  its  agent  after  ex- 
amination of  the  property,  which  he  in- 
formed the  property  owner  was  all  right, 
and  which  the  latter  signed  without  reading, 
notwithstanding  clauses  in  the  application 
or  policy  to  the  effect  that  the  company 
would  not  be  bound  by  such  representations 
of  its  agent.  People's  F.  Ins.  Asso.  v.  Goyne, 
16:  1 180,  96  S.  W.  365,  79  Ark.  315. 

527.  Knowledge  and  representations  of 
an  insurance  broker  who  places  risks  with 
an  insurer,  on  commission,  with  respect  to 
the  condition  of  the  title  to  property  upon 
which  he  procures  a  policy,  do  not  bind 
the  insurer  or  waive  a  condition  that  the 
title  of  insured  must  be  sole  and  uncondi- 
Digest  1-52  I*R.A.(N.S.) 


tional  ownership,  where  the  policy  provides 
that  no  agent  of  the  insurer  shall  have 
power  or  be  deemed  to  have  waived  provi- 
sions or  conditions  of  the  policy  unless  such 
waiver  shall  be  written  upon  or  attached 
to  the  policy.  Sharnian  v.  Continental  Ins. 
Co.  52:  670,  138  Pac.  708,  167  Cal.  117. 

528.  An  insurance  company  whose  agent 
was  expressly  informed,  at  the  time  of  the 
execution  of  a  fire  policy,  of  the  true  inter- 
est of  the  insured  in  the  property,  and  who 
carelessly  and  negligently,  without  the  con- 
nivance of  the  assured,  stated  in  the  policy 
that  the  insured  was  the  owner  in  fee 
simple,  which  was  not  true,  and  collected 
and  retained  the  premium,  is  estopped  to 
deny  liability  in  an  action  on  the  policy, 
although  it  provided  that  the  entire  policy 
should  be  void  if  the  interest  of  the  insured 
was  not  truly  stated  therein,  or  if  his  in- 
terest was  other  than  sole  and  uncondition- 
al ownership,  unless  otherwise  provided  by 
agreement  indorsed  on  the  policy,  and  also 
that  no  officer  or  agent  should  have  pow- 
er to  waive  any  of  the  provisions  or  condi- 
tion of  the  policy,  and  that  no  officer  or 
agent  should  be  deemed  to  have  waived 
any  such  provisions  or  conditions  unless 
such  waiver  was  written  upon  or  attached 
to  the  policy.  Leisen  v.  St.  Paul  F.  &  M. 
Ins.  Co.  30:  539,  127  N.  W.  837,  20  N.  D. 
316. 

529.  That  an  application  for  insurance 
was  written  out  by  the  agent  of  the  insur- 
ance company  will  not  relieve  the  insured 
from  liability  for  misrepresentations  and 
concealment  as  to  the  title  of  the  insured 
property,  where  the  policy  provides  that  it 
shall  be  void  in  case  of  concealment  or  mis- 
representation and  the  application  is  ex- 
pressly made  a  part  of  the  contract  of  in- 
surance, and  the  insurance  agent  whose 
powers  were  strictly  defined  by  the  insur- 
ance contract  had  no  authority  to  waive 
such  provisions.  Deming  Invest.  Co.  v. 
Shawnee  F.  Ins.  Co.  4:  607,  83  Pac.  918, 
16  Okla.  1.  (Annotated) 

530.  When  a  local  agent  of  a  fire  insur- 
ance company,  who  has  the  power  to  accept 
a  risk  and  deliver  the  policy  of  insurance, 
at  and  prior  to  the  time  of  the  delivery  of 
the  policy,  is  advised  and  has  full  knowl- 
edge of  the  fact  that  other  insurance  upon 
the  property  is  in  force,  and  with  that 
knowledge  accepts  the  premium  and  de- 
livers the  policy  without  any  indorsement 
thereon,  such  policy  is  binding  upon  the 
company,  notwithstanding  the  fact  that  it 
contains  a  provision  prohibiting  the  exist- 
ence of  concurrent  insurance  without  writ- 
ten consent  thereto  indorsed  on  the  policy, 
and  notwithstanding  it  contains  a  pro- 
vision that  none  of  the  company's  officers 
or  agents  can  waive  any  of  its  provisions, 
except  in  writing  indorsed  on  the  policy. 
Western  Nat.  Ins.  Co.  v.  Marsh,  42:  991, 
125  Pac.  1094,  34  Okla.  414. 

531.  A  local  agent  of  an  insurance  com- 
pany, whose  only  power  is  to  solicit  appli- 
cations for  insurance  and  forward  them  to 
the    company    for    approval,    when,    if    ap- 


1580 


INSURANCE,  V.  b,  3. 


proved,  the  company  issues  the  policy  and 
causes  it  to  be  delivered  to  the  insured, 
has  no  power  to  waive  any  of  the  provisions 
of  the  policy  so  delivered,  and  notice  to 
such  agent  of  "additional  insurance"  taken 
out  by  the  insured  after  the  delivery  of  the 
policy  is  not  notice  to  the  company.  Mer- 
chants' &  Planters'  Ins.  Co.  v.  Marsh,  42: 
996,   125  Pac.  1100,  34  Okla.  453. 

532.  A  provision  in  a  standard  insurance 
policy,  the  form  of  which  is  prescribed  by 
statute,  that  no  agent  shall  have  power  to 
waive  any  condition  unless  the  waiver  is  in- 
dorsed on  or  added  to  the  policy,  cannot  be 
waived  by  parol,  and  an  attempted  consent 
to  additional  insurance  which  is  not  so  in- 
dorsed as  required  by  the  policy  is  without 
effect.  Black  v.  Atlanta  Home  Ins.  Co.  21: 
578,  61  S.  E.  672,  148  N.  C.  169. 

533.  An  insurer  whose  general  agent,  with 
power  to  waive  in  writing  a  provision  in 
the  policy  against  the  installation  on  the 
premises  of  a  gas  generating  plant,  a  few 
weeks  after  issuing  policies  containing  such 
clause  to  the  owner  of  a  building,  waives 
the  provisions  in  favor  of  his  tenant,  who  in- 
stalls such  plant  without  the  knowledge  of 
the  landlord,  will  be  held  to  have  waived 
the  provision  in  favor  of  the  landlord  also, 
unless  it  notifies  him  of  the  installation  and 
either  requests  him  to  apply  for  a  waiver  or 
cancels  his  policy;  and  it  is  immaterial  that 
the  policy  provides  that  no  agent  shall  have 
power  to  waive  any  of  the  restrictive  clauses 
unless  waiver  is  expressly  authorized,  and 
that  any  waiver  must  be  written  upon  or 
attached  to  the  policy.  German  American 
Ins.  Co.  V.  Hyman,  16:77,  94  Pac.  27,  42 
Colo.  156. 

534.  Failure  of  the  agent  and  adjuster 
of  an  insurance  company  to  make  objection 
when  notified  at  the  time  of  adjusting  a 
small  loss,  of  the  presence,  at  the  time  of 
the  loss,  of  a  small  quantity  of  gasolene 
on  the  property,  which  was  prohibited  by 
the  policy,  and  the  adjustment  of  the  loss 
and  retention  of  the  unearned  premium, 
will  waive  the  forfeiture,  notwithstanding 
a  stipulation  in  the  policy  that  no  repre- 
sentative of  the  company  shall  have  power 
to  waive,  or  be  deemed  to  have  waived,  con- 
ditions of  the  policy,  unless  such  waiver 
shall  be  written  or  attached  thereto.  Ar- 
nold V.  American  Ins.  Co.  25:  6,  84  Pac. 
182,   148   Cal.   660.  (Annotated) 

535.  Consent  of  the  managing  agent  of  an 
insurance  company  to  the  killing  of  a  horse 
afflicted  with  glanders  does  not  impose  a 
liability  on  the  company  for  the  loss,  where, 
under  the  statute,  the  civil  authorities 
would  have  killed  the  animal  on  notice,  and 
the  policy  relieves  the  insurer  from  lia- 
bility for  loss  due  to  "order  of  any  civil 
authority,"  and  provides  that  no  agreement 
of  any  agent  contrary  to  the  provisions  of 
the  policy  shall  be  binding  on  the  instirer 
unless  authorized  by  the  home  office.  Jop- 
lin  V.  National  Live  Stock  Ins.  Asso.  44: 
569,  122  Pac.  Si)7.  61  Or.  544. 

536.  The  officers  of  a  mutual  benefit  socie- 
Digest   1-52  I,.R.A.(N.S.) 


ty  cannot  waive  a  by-law  so  as  to  admit 
persons  of  prohibited  age.  Elliott  v.  Knights 
of  Modern  Maccabees,  13:  856,  89  Pac  929, 
46  Wash.  320. 

537.  Officers  of  subordinate  lodges  of 
benevolent  societies  have  no  authority,  by 
reason  merely  of  such  office,  to  waive  any  of 
the  provisions  of  the  rules  and  regulations 
of  the  order  which  enter  into  and  form  a 
part  of  the  contract  of  membership.  Royal 
Highlanders  v.  Scovill,  4:  421,  92  N.  W.  206, 
66  Neb.  213.  (Annotated) 

538.  Under  by-laws  of  the  benefit  society 
requiring  payment  of  an  assessment  be- 
fore liability  on  the  policy  begins,  and  dis- 
qualifying local  camps  from  waiving  laws 
of  the  order,  no  lialjility  will  be  inaugu- 
rated by  acceptance  of  the  assessment  by 
the  local  camp  after  the  death  of  the  ap- 
plicant. Sovereign  Camp,  W.  W.  v.  Hall, 
41:  517,  148  S.  W.  526,  104  Ark.  338. 

539.  A  benefit  society  is  estopped  to  deny 
recovery  to  an  injured  member  according  to 
the  terms  of  his  certificate,  where,  after  sus- 
pension, he  applied  for  reinstatement  and 
was  informed  by  the  local  lodge  that  he  had 
been  reinstated,  and  thereafter  regularly 
paid  his  dues,  although  the  supreme  body 
had  refused  to  grant  the  reinstatement  and 
placed  the  dues  to  the  general  credit  of  the 
local  lodge.  Richardson  v.  Brotherliood  of 
Locomotive  Firemen  &  Enginemen,  41:  320, 
126  Pac.  82,  70  Wash.  76. 

540.  A  mutual  benefit  certificate  is  not 
avoided  by  the  fact  that  the  medical  exam- 
iner omits  to  insert  in  the  application  infor- 
mation material  to  the  risk,  which  is  given 
him  in  good  faith  by  the  applicant.  Lyon 
V.  United  Moderns,  4:  247,  83  Pac.  804,  14S 
Cal.  470. 

541.  Knowledge  by  the  examining  physi- 
cian of  a  mutual  benefit  society,  of  the 
falsity  of  the  answer  of  an  applicant  as  to 
his  occupation,  is  not  binding  on  the  com- 
pany, since  he  is  the  insurer's  agent  only 
with  respect  to  matters  pertaining  to  the 
medical  examination.  Sovereign  Camp,  W. 
W.  V.  Hall,  41 :  517,  148  S.  W.  526,  104  Ark. 
338. 

542.  An  insurance  company  is  estopped  to 
deny  the  effect  of  a  demand  by  its  general 
state  agent  for  payment  of  a  past-due  pre- 
mium note  as  a  waiver  of  the  forfeiture 
caused  by  such  nonpayment  although  the 
policy  provides  that  no  waiver  of  conditions 
shall  be  valid  unless  in  writing,  signed  by 
an  officer  of  the  company.  New  England 
Mut.  L.  Ins.  Co.  V.  Springgate,  19:  227,  112 
S.  W.  681,  129  Ky.  627. 

543.  An  insurance  company's  superin- 
tendent of  agencies,  with  power  to  adjust 
and  settle  claims,  has  authority  to  waive 
a  forfeiture  for  nonpayment  of  premiums, 
although  the  policy  provides  that  waivers 
can  be  efiected  only  "in  writing,  signed  by 
the  president,  vice  president,  or  secretary." 
Industrial  Mut.  Indemnity  Co.  v.  Thomp- 
son, 10:  1064,  104  S.  W.  200,  83  Ark.  575.     , 

(Annotated) 


4:.  Mistake,  negligence,  or  fraud  of 
agent. 


INSURANCE,  V.  b,  4,  5.  1581 

5.  Acts  constituting  waiver  or  estoppel. 
a.  In  general. 


(See   also   same   heading   in  Digest   L.R.A. 
1-10.) 


See  also  supra,  292,  488,  514,  516,  528. 


544.  An  insured  who  truthfully  and  cor- 
rectly stated  the  nature  and  condition  of  his 
title  in  making  an  application  for  insur- 
ance is  not  precluded  from  recovery  aftei 
loss  by  a  different  title  being  stated  in  the 
policy.  Arkansas  Ins.  Co.  v.  Cox,  20:  775, 
98  Pac.  552,  21  Okla.  873. 

545.  An  insurance  company  whose  agent 
prepares  an  application  by  securing  his  in- 
formation from  other  applications  which 
had  been  signed  by  the  applicant,  is  es- 
topped from  setting  up  the  falsity  of  the 
answers  in  defense  to  its  liability  on  the 
policy,  where  the  applicant,  without  know- 
ing what  the  answers  are,  signs  the  appli- 
cation at  the  request  of  the  agent  upon  be- 
ing assured  that  it  is  prepared  according  to 
the  rules  and  regulations  of  the  insurer. 
Roe  V.  National  L.  Ins.  Asso.  17:  1144, 
116  N.  W.  500,  137  Iowa,  696. 

546.  An  insurer  cannot  claim  a  forfeiture 
for  misstatement  of  the  age  of  the  insured 
where  it  was  inadvertently  inserted  in  the 
policy  by  its  own  agent.  Fidelity  &  C.  Co. 
V.  Meyer,  44:  493,  152  S.  W.  995,  106  Ark. 
91. 

547.  An  insurance  company  is  not  es- 
topped, by  the  knowledge  of  its  agents  who 
negotiated  the  policy,  from  setting  up  falsi- 
ty of  answers  in  the  application,  if  the  in- 
sured was  a  party  to  the  deception.  Mudge 
V.  Supreme  Court  I.  O.  O.  F.  14:  279,  112 
N.  W.  1130,  149  Mich.  467.  (Annotated) 

548.  Waiver  of  misrepresentation  by  an 
applicant  for  insurance  that  he  had  not 
been  in  contact  with  transmissible  disease, 
or  of  the  fact  that  he  liad  typhoid  fever 
when  the  policy  was  delivered,  is  not  ef- 
fected by  delivery  by  an  agent  of  the  policy 
with  knowledge  that  the  applicant  had  been 
in  contact  witli  the  disease  and  had  himself 
contracted  it,  if  there  was  a  fraudulent  or 
collusive  agreement  between  the  agent  and 
the  insured  as  to  such  delivery,  or  the  in- 
sured had  knowledge  that  the  agent  was  de- 
livering the  policy  without  authority  or  con- 
trary to  instructions.  Gardner  v.  North 
State  L.  Ins.  Co.  48:  714,  79  S.  E.  806,  163 
N.  C.  367. 

549.  An  insurance  company  is  not  es- 
topped to  insist  on  a  provision  of  its  policy 
suspending  the  contract  when  a  premium 
becomes  overdue,  by  a  statement  of  the  at- 
torney to  whom  the  claim  was  sent  for  col- 
lection, who  obtained  judgment  therefor, 
that  a  stay  of  the  judgment  would  rein- 
state the  policy,  followed  by  the  procuring 
of  the  stay,  even  though  the  attorney  has 
general  authority  to  collect  premiums  in 
hia  locality.  Davis  v.  Home  Ins.  Co.  44: 
626,  155  S.  W.  131,  127  Tenn.  330. 
Digest  1-52  Ii.R.A.(N.S.) 


(See   also   same   heading  in  Digest   L.R.A. 
1-10.) 

By  delay  in  passing  on  application  presented 
by  uninsurable  risk,  see  Evidence,  551. 

550.  Payment  of  the  amount  due  under 
a  fire-insurance  policy  does  not  waive  fraud- 
ulent misrepresentations  as  to  the  location 
of  the  property  at  the  time  of  loss,  the  prop- 
erty having  in  fact  been  moved  so  as  to 
release  the  liability  of  the  insurer.  Pala- 
tine Ins.  Co.  V.  Kehoe,  15:  1007,  83  N.  E. 
866,  197  Mass.  354. 

551.  An  insurance  company  which  fur- 
nishes blanks  for  change  of  beneficiary,  and 
accepts  and  recognizes  a  designated  change 
for  a  period  of  years,  is  estopped  to  claim 
that  the  change  was  not  made  in  strict  ac- 
cordance with  its  by-laws.  Smith  v.  Met- 
ropolitan L.  Ins.  Co.  20:  928,  71  Atl.  11, 
222  Pa.  226. 

552.  Issuance  by  an  insurer  of  a  vacancy 
permit  with  knowledge  that  the  building, 
has  been  vacant  waives  a  forfeiture  because 
of  such  vacancy.  Duncan  v.  National  Mut. 
F.  Ins.  Co.  20:  340,  98  Pac.  634,  44  Colo. 
472. 

553.  The  granting  of  a  vacancy  permit 
by  an  insurance  company  is  a  complete 
waiver  of  any  forfeiture  of  the  policy  by 
reason  of  previous  vacancy  of  the  insured 
building,  and  gives  the  policy  the  same 
binding  force  which  it  originally  possessed, 
so  that  the  insurance  company  is  liable  for 
a  loss  occurring  while  the  building  is  still 
vacant  and  subsequent  to  the  expiration  of 
the  vacancy  permit,  but  within  the  period 
limited  for  vacancy  without  such  permit, 
estimating  that  period  from  the  expiration 
of  the  vacancy  permit.  Caledonian  Ins.  Co, 
V.  Smith,  47:  619,  62  So.  595,  65  Fla.  429. 

(Annotated) 

554.  Under  an  insurance  policy  con- 
taining a  clause  providing  for  a  forfeiture 
in  case  of  vacancy,  where  the  insurer  has 
no  notice  or  knowledge  of  a  breach  of  this 
condition  in  the  policy  and  did  not  learn 
until  after  the  premises  were  totally  de- 
stroyed that  the  building  had  been  so  dam- 
aged by  previovis  fires  as  to  be  uninhabit- 
able, and  had  so  remained  for  several  weeks 
before  the  loss  occurred,  the  fact  that  the 
adjuster  for  the  company,  while  declaring 
that  the  policy  was  void  and  that  the  in- 
surer was  not  liable,  ofl'ered  a  larger  sum 
than  the  unearned  premium  for  a  surrender 
of  the  policy,  does  not  of  itself  constitute 
a  waiver  of  the  forfeiture.  Schmidt  v. 
Williamsburgh  Citv  F.  Ins.  Co.  51:  261,  144 
N.  W.  1044,  95  Neb.  43.  (Annotated) 

555.  Giving  a  specified  term  of  credit  to 
an  applicant  for  life  insurance  for  payment 
of  the  first  premium  waives  a  provision  in 
the  policy  to  the  effect  that  it  shall  not  take 
effect  until  the  first  premium  is  paid,  while 
the  applicant  is  in  the  same  condition  of 
health  as  described  in  the  application.     Con- 


1582 


INSURANCE,  V.  b,  5. 


necticut  General  L.  Ins.  Co.  v.  Mullen,  43: 
725,  197  Fed.  299,  118  C.  C.  A.  345. 

( Annotated ) 

556.  The  beneficiary  of  a  mutual  benefit 
certificate  cannot  insist  upon  an  estoppel 
against  the  order  because  of  refusal  to  ac- 
cept the  dues  of  a  member  who  is  ill,  if, 
upon  the  representative  of  the  lodge  stating 
that  he  had  information  that  the  member 
is  not  fit  to  be  such  ar.d  should  be  expelled, 
and  that  unless  he  is  permitted  to  lapse 
out  by  nonpayment  of  dues  he  will  take  the 
matter  before  the  order  and  secure  the  ex- 
pulsion, he  acquiesces  in  the  suggestion 
without  further  attempt  to  pay  dues.  Mc- 
Cann  v.  Supreme  Conclave,  I.  O.  H.  46:  537, 
87  Atl.  383,  119  Md.  655. 

557.  A  requirement  of  a  mutual  benefit 
society  that  suit  cannot  be  brought  until  a 
certain  time  after  proofs  of  death  are  fur- 
nished is  waived  by  refusal  of  the  proper 
officer  to  furnish  blanks  for  such  proof,  be- 
cause the  notice  given  him  was  of  absence 
for  more  than  seven  years,  rather  than  of 
death.  Miller  v.  Sovereign  Camp  Woodmen 
of  the  World,  a8:  178,  122  N.  W.  1126,  140 
Wis.  605. 

b.  Misleading  conduct. 

(See  also   same  heading  in  Digest   L.R.A. 
1-10.) 

558.  An  insurance  company  which  re- 
fuses to  accept  a  check  tendered  for  a 
premium,  on  the  ground  that  the  policy 
had  been  canceled,  cannot  deny  liability  on 
the  policy  because  the  premium  had  not 
'been  paid.  Indiana  Nat.  L.  Ins.  Co.  v.  Mc- 
Ginnis,  45:  192,  101   N.  E.  289,   180  Ind.  9. 

559.  Where  the  secretary  of  the  local 
lodge  of  a  mutual  benefit  society  is  fre- 
quently away  from  home  on  the  last  day 
prescribed  for  payment  of  assessments  on 
certificates,  and  for  a  long  time  has  been 
in  the  habit  of  accepting  payments  any 
time  prior  to  the  date  of  transmitting  the 
assessments  to  the  supreme  body,  a  rule 
of  the  order  that  failure  to  pay  assessments 
on  or  before  the  last  specified  day  shall  of 
its  own  force  suspend  the  certificate  will  be 
regarded  as  waived.  Trotter  v.  Grand  Lodge, 
I.  L.  of  H.  7:  569,  109  N.  W.  1099,  132  Iowa, 
513. 

560.  A  course  of  dealing  which  will  jus- 
tify an  insured  in  believing  ..hat  the  in- 
surer will  accept  a  premium  twenty  d.aya 
overdue  is  not  shown  by  tlie  receipt  of  a 
few  when  they  were  only  a  fe'.^  days  over- 
due, and  of  two  others  upon  presentation 
of  health  certificates  and  a  promise  to  pay 
future  premiums  promptly.  Tliompson  v. 
Fidelitv  Mat.  L.  Ins.  Co.  6:  1039,  92  S.  W. 
1098,  116  Tenn.  557. 

561.  The  rule  permitting  a  course  of  deal- 
ing to  estop  an  insurer  from  insisting  upon 
prompt  payment  of  premiums  does  not  ap- 
ply unless  the  tender  is  made  durin?  the 
life  of  the  insured.  Thompson  v.  Fidelity 
Mut.  L.  Ins.  Co.  6:  1039,  92  S.  W.  1098,  116 
Tenn,  557. 

562.  A  mutual  benefit  society  which  for 
Digest  1-52  I,.R.A.(N.S.) 


years  has  given  members  notice  of  the 
times  when  regular  assessments  are  pay- 
able waives  the  right  to  forfeit  a  certificate 
for  nonpayment  of  an  assessment  by  fail- 
ing to  give  such  notice.  Supreme  Council 
C.  B.  L.  V.  Grove,  36:  913,  96  N.  E,  159, 
176  Ind.  356. 

563.  That  a  mutual-benefit  society  dis- 
tributes among  its  subordinate  lodges  what 
purports  to  be  a  copy  of  its  constitution  and 
by-laws,  which  contains  no  exemption  from 
liability  in  case  of  suicide,  and  in  reliance 
upon  which  a  member  who  subsequently 
committed  suicide  acted  in  joining  the  or- 
der, does  not  estop  it  from  taking  advantage 
of  a  provision  in  its  laws  containing  such 
exemption  in  avoidance  of  liability  on  his 
certificate;  since  the  members  are  conclu- 
sively presumed  to  know  what  the  provisions 
of  the  laws  are,  they  being  a  part  of  the 
contract  of  insurance.  Benes  v.  Supreme 
Lodge  K.  &  L.  of  H.  14:  540,  83  N.  E.  127, 
231  111.  134.  (Annotated) 

c.  Issuing  and  delivering  policy. 

(See   also   same   heading   in  Digest   L.ll.A. 
1-10.) 

564.  A  condition  in  a  policy  that  the  in- 
surance will  not  be  in  force  until,  nor  will 
the  company  be  liable  in  respect  of  any  loss 
or  damage  happening  before,  the  premium, 
or  a  deposit  on  account  thereof,  is  actually 
paid,  and  that  no  such  payment  or  deposit 
shall  be  good  unless  a  duly  executed  receipt 
shall  have  been  given  to  the  insured,  cannot 
be  considered  as  waived  by  a  delivery  of 
the  policy  to  the  insured.  Equitable  Fire  & 
Acci.  Office,  Ltd.  v.  Ching  Wo  Hong,  1  B.  R. 
C.  34,  [1907]  A.  0.  96.  Also  Reported  in 
76  L.  J.  C.  P.  N.  S.  31,  96  L.  T.  N.  S.  1, 
23  Times  L.  R.  200. 

565.  A  policy  of  insurance  containing  the 
following  condition  "This  insurance  will  not 
be  in  force  until,  nor  will  the  company  be 
liable  in  respect  of  any  loss  or  damage  hap- 
pening before,  the  premium  or  a  deposit  on 
account  thereof  is  actually  paid,  and  no 
such  payment  or  deposit  and  no  payment  in 
respect  of  renewal  of  this  policy  shall  be 
good  unless  a  printed  form  of  receipt  for  it, 
issued  from  the  office  of  the  company  and 
signed  by  one  of  the  company's  authorized 
officers  or  agents,  shall  have  been  given  to 
the  insured"  does  not  become  eff'ective  upon 
delivery,  notwithstanding  a  recital  of  the 
receipt  of  the  premium  contained  in  the 
body  of  the  policy.  Equitable  Fire  &  Acci. 
Office,  Ltd.  V.  Ching  Wo  Hong,  1  B.  R.  C. 
34,  [1907]  A.  C.  96.  Also  Reported  in  76 
L.  J.  C.  P.  N.  S.  31,  96  L.  T.  N.  S.  1,  23 
Times  L.  R.  200. 

566.  An  insurer  which  has  issued  a  life 
insurance  policy  and  received  the  premiums 
thereon  is  estopped  from  contending,  in  an 
action  on  the  policy,  that  in  consequence  of 
the  want  of  a  proposal  signed  by  the  person 
taking  out  the  insurance,  and  expressed  by 
the  policy  to  be  the  basis  of  the  contract, 
there  was  no  contract.  Pearl  Life  Assur. 
Co.  V.  Johnson,  4  B.   R.   C.   460,    [1909]   2 


INSURANCE,  V.  b,  5. 


1583 


K.  B.  288.  Also  Reported  in  78  L.  J,  K.  B. 
N.  S.  777,  100  L.  T.  N.  S.  483,  73  J.  P. 
216.  (Annotated) 

567.  A  condition  in  a  life  insurance  pol- 
icy, that  the  contract  shall  not  be  operative 
or  binding  until  the  actual  payment  of  the 
initial  premium  and  the  delivery  of  the  pol- 
icy, is  waived  and  the  policy  takes  effect, 
where  the  insurance  company  delivers  the 
policy,  accepts  notes  for  the  initial  premium, 
and  gives  a  receipt  stating  that  the  pre- 
mium is  settled  by  the  notes.  Hipp  v.  Fi- 
delity Mut.  L.  Ins.  Co.  12:  319,  57  S.  E.  892, 
128  Ga.  491. 

568.  An  insurance  company,  by  issuing  a 
fire  insurance  policy  without  inquiry,  does 
not  waive  its  conditions  as  to  title  and 
ownership.  Re  Millers'  &  M.  Ins.  Co. 
4:  231,  106  N.  W.  485,  97  Minn.  98. 

569.  The  issuance  without  written  applica- 
tion to  a  life  tenant  of  a  fire  insurance  pol- 
icy without  inquiry  as  to  the  state  of  title, 
no  representations  being  made  by  assured 
upon  that  question,  and  the  assured  paying 
the  premium  and  accepting  the  policy  with- 
out notice  of  a  provision  in  the  policy  that 
it  shall  be  void  if  the  interest  of  the  assured 
is  other  than  unconditional  and  sole  owner- 
ship, waives  such  provision.  Glens  Falls  Ins. 
Co.  V.  Michael,  8:  708,  74  N.  E.  964,  167  Ind. 
659. 

570.  Knowingly  issuing  an  insurance  pol- 
icy upon  a  building  in  possession  of  a  ten- 
ant waives  a  provision  of  the  policy  that 
it  shall  be  void  if  the  building  sliall  be  in 
such  possession.  Ohio  Farmerc'  Ins.  Co.  v. 
Vogel,  3:  966,  76  N.  E.  977,  166  Ind.  239. 

571.  Delivery  of  an  insurance  policy  with 
knowledge  of  intention  subsequently  to 
place  an  encumbrance  on  the  property  does 
not  waive  a  provision  of  the  policy  requir- 
ing notice  of  an  encumbrance  to  be  prompt- 
ly given  to  the  insurer;  nor  does  the 
agent's  assurance  that  such  encumbrance 
will  make  no  difference  estop  the  insurer 
from  insisting  on  the  forfeiture  for  failure 
to  give  tlie  notice.  McCarly  v.  Piedmont 
Mut.  Ins.  Co.  18:  729,  62  S.  E.  I,  81  S.  C. 
152. 

572.  A  mutual  benefit  association  having 
issued  a  ceitificate  disclosing  that  the  ben- 
eficiary was  a  sister-in-law  of  the  member, 
and  having  received  payments  of  dues  there- 
under, cannot  assert,  as  a  defense  to  an  ac- 
tion by  the  beneficiary  upon  such  certifi- 
cate, that  she  was  not  a  proper  person  to  be 
designated  as  beneficiary.  Stronge  v.  Su- 
preme Lodge,  K.  of  P.  12:  1206,  82  N.  E. 
433,  189  N.  Y.  346. 

d.  Receipt,  demand,  acceptance,  and 
retention  of,  or  a^stion  for,  premium 
or  assessm,ent. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

See  also  supra,  412,  484,  495,  496,  534,  538, 
539,  555,   558,   562,   566,  567,   572. 

573.  Mere  delay  in  returning  the  pre- 
mium upon  a  policy  of  fire  insurance  void 
Digest   1-52  L,R.A.(N.S.) 


because  of  breach  of  warranty  of  title  to 
the  property  does  not  forfeit  the  right  to 
defend  against  an  action  on  the  policy  for 
such  breach.  Goorberg  v.  Western  Assur. 
Co.   10:876,  89  Pac.  130,  150  Cal.  510. 

.'i74.  A  lire  insurance  company  which,  witli 
full  knowledge  Of  the  facts  attending  a  loss, 
and  of  the  failure  of  the  insured  to  keep 
their  books  and  inventories  in  a  fireproof 
safe,  as  required  by  the  policy,  and  which 
was  made  a  ground  of  forfeiture,  accepts 
and  retains  the  stipulated  premium,  and  re- 
quires the  insured  to  procure  duplicate  bills 
and  invoices,  will  not  thereafter  be  permit- 
ted to  take  advantage  of  the  forfeiture. 
Gish  v.  Insurance  Co.  of  N.  A.  13:  826,  87 
Pac.   869,    16   Okla.   59. 

575.  Notice  to  an  insurance  company  that 
the  insured  premises  had  been  leased  to  a 
tenant,  and  its  receipt  of  premiums  or  as- 
sessments from  the  owner  thereafter,  do  not 
waive  a  provision  of  the  policy  forbidding 
the  storing  of  seed  cotton  in  the  insured 
building.  Edwards  v.  Farmers'  Mut.  Ins. 
Asso.  12:  484,  57  S.  E.  707,  128  Ga.  353. 

576.  A  notice  at  the  time  of  procuring  fire 
insurance  of  intention  to  procure  additional 
insurance  in  the  future  is  not  a  notice  of 
existing  conditions,  so  as  to  make  the  re- 
ception of  the  premium  with  such  notice 
work  an  estoppel  against  the  insurer.  Black 
v.  Atlanta  Home  Ins.  Co.  21:  578,  61  S.  E. 
672,  148  N.  C.  169. 

577.  The  mere  failure  to  offer  to  return 
the  unearned  premium  on  an  insurance  pol- 
icy, as  required  by  its  terms,  upon  the  dis- 
covery, after  loss,  of  a  breach  thereof,  will 
not  constitute  a  waiver  of  the  forfeiture 
where  the  premium  is  not  received  by  the 
company  after  knowledge  of  the  breach,  and 
no  demand  is  made  for  the  unearned  pre- 
miums, and  no  offer  is  made  to  surrender 
the  policy,  a  tender  accompanying  a  plea  of 
forfeiture  in  an  action  to  recover  on  the 
policy  being  sufficient  in  such  a  case,  ^tna 
Ins.  Co.  v.  Mount,  15:  471,  44  So.  162,  90 
Miss.  642. 

578.  An  insurer  which,  after  receiving; 
knowledge  of  the  falsity  of  answers  in  the 
application  upon  which  the  policy  was  is- 
sued, continues  to  collect  premiums  on  the 
policy,  is  estopped  to  deny  liability  thereon 
because  of  such  falsity.  Masonic  L.  Asso, 
v.  Robinson,  41 :  505,  147  S.  W.  882,  149  Ky. 
80. 

579.  An  insurance  company  which  re- 
ceived and  appr  Dpriated  money  paid  by  a 
policy  holder,  knowing  that  it  was  intended 
as  a  payment  of  a  premium,  cannot  avoid 
liability  on  the  policy  on  the  ground  that 
he  had  not  received  a  receipt  in  the  form 
prescribed  by  the  terms  of  the  policy. 
Matthews  v.  Metropolitan  L.  In>!.  Co.  18: 
1219,   61    S.   E.    192,   147   N.   C.   339. 

(Annotated) 

580.  An  insurance  company  which  per- 
mits payments  of  overdue  premiums  with- 
out insisting  on  proof  of  good  health  on 
the  part  of  insured,  as  provided  by  the 
contract,  does  not  waive  its  right  to  re- 
quire   such    proof    before    permitting    rein- 


1584 


INSURANCE,  V.  b,  5. 


statement  after  a  subsequent  forfeiture;  at 
least,  where  the  first  default  was  condoned 
by  a  subordinate  ollicer  who  had  no  author- 
ity to  bind  the  company  without  bringing  it 
to  the  attention  of  the  officers  in  whom  was 
vested  the  power  to  enforce  or  waive  the 
forfeiture.  Conway  v.  Minnesota  .Mut.  L. 
Ins.  Co.  40:  148,  112  Pac.  1106,  62  Wash. 
49. 

581.  Bringing  suit  for  the  assessment 
after  the  policy  has  become  void  by  its  terms 
does  not  reinstate  an  insurance  policy  which 
provides  that  failure  to  pay  an  assessment 
within  a  certain  time  shall  render  the  pol- 
icy void.  Mutual  Fire  Co.  v.  Maple,  38: 
726,  119  Pac.  484,  60  Or.  359. 

582.  Placing  a  premium  note  in  the  hands 
of  an  attorney  for  collection  after  the  pol- 
icy has  become  void  according  to  its  terms 
for  failure  to  pay  the  note  will  not  revive 
the  policy  if  the  collection  is  not  effected, — 
especially  where  the  policy  provides  that  no 
waiver  shall  be  valid  unless  in  writing, 
lies  V.  Mutual  Reserve  L.  Ins.  Co.  18:902, 
96  Pac.  522,  50  Wash.  49.  (Annotated) 

583.  A  provision  in  an  insurance  policy 
that  it  shall  be  void  if  the  insurer  has 
other  policies  in  force  on  the  same  life,  un- 
less consent  to  the  additional  insurance  is 
indorsed  thereon,  is  waived  by  a  receipt  of 
premiums  on  the  new  policy  the  beneficiary 
in  which  is  ignorant  of  the  former  insurance, 
although,  by  reason  of  faulty  bookkeeping 
the  attention  of  the  insurer  was  not  in  fact 
called  to  the  breach  of  the  condition.  Mona- 
han  V.  Mutual  L.  Ins.  Co.  5;  759,  63  Atl.  211, 
103  Md.  145.  (Annotated) 

584.  The  receipt  by  a  mutual  benefit  so- 
ciety of  overdue  assessments  without  notice 
that  they  were  not  made  with  the  consent 
of  the  member  does  not  estop  it  from  con- 
testing its  liability  on  the  certificate  on 
that  ground,  if  they  were  not  so  made. 
Proctor  V.  United  Order  of  G.  S.  25:  370,  89 
N.  E.  1042,  203  Mass.  587.        (Annotated) 

585.  Liability  on  a  premium  note  to  se- 
cure assessments  on  a  mutiial  fire  insurance 
policy  is  not  terminated  by  refusal  to  pay 
a  loss  upon  the  property  insured;  and, 
therefore,  the  men  enforcement  of  an 
assessment  made  after  denial  of  liability  for 
the  loss  does  not  waive  a  forfeiture  for 
breach  of  condition  of  the  policy.  Knowlton 
V.  Patrons'  Androscoggin  Mut.  F.  Ins.  Co, 
2:  517,  62  Atl.  289,  100  Me.  481. 

586.  A  benefit  assurance  association 
which,  after  notice,  or  after  such  a  length  of 
time  that  knowledge  would  be  presumed,  of 
a  change  of  employment,  continues  to  accept 
dues  from  an  insured  witliout  the  filing  of 
a  written  waiver,  as  required  by  a  by-law 
prohibiting  the  acceptance  of  members  en- 
gaged in  certain  hazardous  employments, 
and  providing  that,  if  a  certificate"  holder 
enter  any  such  employment  after  becoming 
a  member,  he  may,  by  filing  a  written 
waiver  of  liability  because  of  sxich  in- 
creased hazard,  continue  his  certificate,  ex- 
cept as  to  death  or  injury  directly  trace- 
able to  the  prohibited  occupation,  waives 
such  provision,  and  recovery  may  be  had 
for  a  death  directly  resulting  from  the  en- 
Digest  1-52  I,.R.A.(3r.S.) 


gaging  by  the  insured  in  the  prohibited  em- 
ployment. Johnson  v.  Modern  J5rotherhood 
of  America,  27:  446,  123  N.  W.  819,  10» 
Minn.    288.  (Annotated) 

587.  An  insurance  company  by  retaining 
premium  notes  containing  a  provision  that 
if  they  are  not  paid  at  maturity,  the  pol- 
icy shall  be  null  and  void,  and  endeavoring 
to  collect  the  notes  in  full,  waives  the  pro- 
vision that  the  policy  should  be  void  if 
the  notes  are  not  paid  at  maturity.  Shaw- 
nee Mut.  F.  Ins.  Co.  V.  Cannedy,  44:  376, 
129  Pac.  865,  36  Okla.  733. 

588.  An  inadvertent  assessment  against 
the  premium  note  of  a  mutual  insurance 
policy  will  not  waive  an  objection  to  the 
validity  of  the  policy  on  the  ground  that 
other  insurance  existed  upon  the  property 
contrary  to  its  terms,  nor  amount  to  a 
ratification  of  the  contract.  Carleton  v. 
Patrons'  Androscoggin  Mut.  F.  Ins.  Co. 
39:  951,  82  Atl.  649,  109  Me.  70. 

589.  Acceptance  by  a  benefit  society  of 
an  overdue  assessment  and  the  expense  of 
providing  proof  of  death,  with  knowledge 
that  the  holder  of  the  certificate  was  killed 
while  switching  cars,  does  not  waive  a  pro- 
vision in  the  policy  that  it  shall  not  be  lia- 
ble for  injuries  to  switchmen  in  railroad 
yards,  where  there  is  nothing  to  show  that 
it  knew  he  v/as  so  employed  at  the  time 
of  his  death.  Norton  v.  Catholic  Order  of 
Foresters,  24:  1030,  114  N.  W.  893,  138  Iowa,. 
464. 

590.  A  person  who,  while  not  belonging 
to  the  class  which,  by  the  rules  of  a  benefit 
insurance  society  and  the  statute  regulat- 
ing such  associations,  is  entitled  to  become 
a  beneficiary,  has  his  name  inserted  in  a 
benefit  certificate,  has  no  right  to  receive 
any  part  of  the  benefit  fund,  and  the  ac- 
ceptance of  assessments  paid,  after  his  name 
has  been  so  inserted,  even  if  with  full  knowl- 
edge of  the  existing  relations,  does  not  con- 
fer such  rights,  as  a  clerk  of  the  order  can- 
not waive  the  provisions  of  a  statute  which 
expressly  prohibits  the  payment  of  benefit 
funds  to  any  person  who  is  not  within  the 
class  designated  as  "beneficiaries."  Modern 
Woodmen  of  America  v.  Comeaux,  25:  814, 
101  Pac.  1,  79  Kan.  493. 

591.  A  fraternal  society  organized  to  pro- 
vide benefits  for  the  families  and  widows  of 
members  will  be  estopped  from  disputing  its 
liability  to  pay  a  certificate  to  the  divorced 
wife  of  a  member,  where  she  was  made  the 
beneficiary  before  the  divorce  was  secured, 
and  tlie  supreme  ruler  of  the  society  in- 
duced her  to  continue  payment  of  the  duea 
after  the  divorce  under  the  belief  that,  on 
the  death  of  the  assured,  the  benefit  would 
be  paid  to  her,  and  the  society  received  and 
used  the  payments  so  made  for  a  series  of 
years;  and  it  is  immaterial  that  a  by-law 
had  been  adopted  withholding  the  right  tO' 
the  fund  from  a  divorced  wife.  Snyder  v. 
Supreme  Ruler,  F.  M.  C.  45:209,  122  S.  W. 
981,  122  Tenn.  248. 

502.  A  mutual  life  insurance  association 
which,  after  passing  a  by-law  by  the  terms 
of  which  the  indemnity  payable  under  an 
existing  certificate  issued  to  a  husband  and 


INSURANCE,  V.  b,  5. 


1585 


wife  and  payable  to  the  survivor  would  be  I  ratified.     Kennedy  v.  Grand  Fraternity,  25: 
reduced    three    fourtlis    of   the   amount,   but  |  78,  92  Pac.  971,  36  Mont.  32;'5.      (Annotated) 


of  wliich  the  insured  were  not  informed 
continues  to  receive  monthly  assessments  at 
the  rate  required  at  the  time  the  certifi- 
cate was  issued,  waives  the  enforcement  of 
the  by-law,  and  is  estopped  from  enfor- 
cing it  against  the  surviving  beneficiary. 
Boman  v.  Bankers'  Union  of  the  World,  11: 
1048,  91  Pac.  49,  76  Kan.  198. 

593.  A  fraternal  benefit  society  which 
issues  a  certificate  to  an  applicant,  and 
thereafter  continuously  collects  dues  from 
her  for  nearly  live  years,  cannot,  after  her 
death,  repudiate  the  contract  on  the  ground 
that  the  certificate  never  went  into  effect, 
because  the  applicant  had  warranted  that 
she  was  not  pregnant  at  the  time  of  her 
application,  when  in  fact  she  was,  although 
such  fact  was  not  known  to  her,  and  in  no- 
wise contributed  to  the  cause  of  death,  nor 
increased  the  risk,  where  such  condition 
would  not  have  avoided  the  policy  or  been 
a  breach  of  the  contract  had  it  occurred 
after  the  contract  became  effective.  Rasicot 
V.  Royal  Neighbors  of  America,  29:433, 
108   Pac.    1048,   18  Idaho,   85. 

594.  A  subordinate  camp  of  a  fraternal 
benefit  society,  which  has  supervision  and 
right  of  expulsion  of  members,  which  col- 
lects dues  and  premiums  for  nearly  five 
years  succeeding  the  confinement  in  child- 
birth of  a  member  who,  in  good  faith,  war- 
ranted in  her  application  that  she  was  not 
then  pregnant,  when  in  fact  she  was,  during 
which  time  she  was  in  good  health,  waives 
the  right  of  the  society  to  insist  on  a  breach 
of  the  contract  for  the  falsity  of  the  answer. 
Rasicot  V.  Royal  Neighbors  of  America, 
29:433,    108    Pac.    1048,    18   Idaho,    85. 

595.  Acceptance  by  a  local  lodge  of  dues 
and  assessments  from  a  member,  with  full 
knowledge  that  he  is  engaged  in  the  liquor 
business,  does  not  estop  the  order  from  con- 
testing the  right  to  benefits  on  that  ground, 
where,  by  the  by-laws,  no  person  engaged 
in  that  business  is  eligible  to  membership; 
and  engaging  in  such  business  ipso  facto 
forfeits  the  rights  of  a  member  regardless 
of  payment  of  dues  or  assessments,  since  the 
member  is  charged  with  notice  that  the  lo- 
cal lodge  is  exceeding  its  authority.  Na- 
tional Council,  J.  0.  U.  A.  M.  v.  Thompson, 
45:  1 148,  156  S.  W.  132,  153  Ky.  636. 

590.  Where  a  member  of  a  mutual  benefit 
society  has,  by  the  terms  of  the  contract, 
forfeited  his  rights,  and  ceased  to  be  a  mem- 
ber by  nonpayment  of  dues,  neither  waiver 
of  the  forfeiture  nor  an  estoppel  to  rely 
upon  it  is  effected  by  a  receipt  by  the  col- 
lector of  the  local  lodge  of  current  dues, 
pending  an  application  for  reinstatement, 
which  must  be  approved  by  the  secretary  of 
the  grand  lodge,  and  the  statement  of  the 
collector  that  the  member  is  in  good  stand- 
ing until  the  next  payment  becomes  due, 
where  neither  the  applicant  nor  the  bene- 
ficiary was  in  any  way  misled  thereby,  es- 
pecially where  the  collector  had  been  given 
no  express  or  implied  authority  to  bind  the 
order  in  that  respect  and  his  act  was  not 
Digest  1-52  L.B.A.(N.S.) 


597.  The  receipt  of  dues  for  reinstate- 
ment by  the  secretary  of  a  subordinate  lodge 
of  a  benevolent  society  while  the  suspended 
member  for  whom  the  dues  were  paid  was  in 
a  dying  condition  does  not  waive  a  require- 
ment of  one  of  the  rules  of  the  society  that, 
after  suspension  for  nonpayment  of  dues,  a 
member  can  only  be  reinstated  while  in  good 
health.  Roj^al  Highlanders  v.  Scovill, 
4:  421,  92  N.  W.  200,'^  66  Neb.  213. 

59S.  A  subordinate  lodge  of  a  mutual 
benefit  association,  which  has  the  power 
to  discipline  and  expel  a  member  for  vio- 
lating the  by-laws  of  the  association,  and 
which  possesses  knowledge  that  a  member 
has  forfeited  his  benefit  certificate  by  habits 
of  intemperance,  waives  the  right  of  the  a-i- 
sociation  to  insist  upon  the  forfeiture,  by 
continuing  to  receive  liis  dues  and  in  all 
other  respects  treating  him  as  a  member 
until  his  death.  Modern  Woodmen  of  Amer- 
ica v.  Breckenridge,  10:  136,  89  Pac.  661, 
75  Kan.  373.  (Annotated) 

599.  A  provision  in  the  by-laws  of  a 
mutual  benefit  association,  that  no  sub- 
ordinate lodge  shall  have  power  to  waive 
by-laws,  applies  only  to  contractual  waiv- 
ers, and  does  not  preclude  waiver  of  the 
forfeiture  of  a  benefit  certificate  by  ac- 
ceptance of  dues  with  knowledge  of  the 
forfeiture.  Modern  Woodmen  of  America 
V.  Breckenridge,  10:  136,  89  Pac.  661,  75 
Kan.  373. 

600.  The  receipt  by  the  supreme  body  of  a 
mutual  benefit  society  of  money  from  a  local 
lodge  to  pay  the  dues  of  a  delinquent  mem- 
ber, without  knowledge  that  it  is  not  his 
money,  but  an  advancement  by  the  lodge, 
does  not  estop  it  from  contesting  liability 
on  his  certificate  because  of  his  nonpayment 
of  dues.  Knights  of  Columbus  v.  Burroughs, 
17:  246,  60  S.  E.  40,  107  Va.  671. 
Prexuium   note. 

See   also   supra,   582,   585,   587,   588;    infra, 
606. 

601.  The  unconditional  demand  by  an  in- 
surance company  of  payment  of  an  overdue 
premium  note  is  a  waiver  of  the  default 
so  that  the  insured  may  recover  on  the 
policy  if  he  immediately  complies  with  the 
demand  by  mailing  a  check  for  the  amount, 
although  the  insured  property  is  burning 
when  the  demand  is  received  and  the  policy 
provides  that  the  company  will  not  be  lia- 
ble for  any  loss  which  might  occur  while 
any  premium  note  remains  due  and  unpaid. 
Limerick  v.  Home  Ins.  Co.  44:  371,  150  S. 
W.    978,    150   Ky.    827.  (Annotated) 

e.  Failure  to  assert  forfeiture. 

(See   also   same   heading  in  Digest   L.R.A 

1-10.) 


See  also  supra,  598. 

602.  Mere  neglect  by  insurer  to  declare  its 
intention  to  insist  on  "a  forfeiture  for  breach 
of  condition  is  not  sufficient  to  constitute  a 
100 


1586 


INSURANCE,  V.  b,  6. 


waiver.     Rundell  v.  Anchor  F.  Ins.  Co.  25: 
20,  105  N.  W.  112,  128  Iowa,  575. 

603.  The  discovery  without  objection,  by 
an  insurance  adjuster,  after  a  fire,  of  the 
fact  that  there  was  other  insurance  upon  the 
property,  contrary  to  the  provisions  of  the 
policy,  does  not  waive  the  forfeiture  thereby 
effected.  First  Nat.  Bank  v.  German  Amer- 
ican Ins.  Co.  38:  213,  134  N.  W.  873,  23 
N.  D.   139. 

604.  Noncompliance  with  a  condition  in 
an  insurance  policy  as  to  arbitration  is 
waived  by  the  insurer  by  failure  to  raise 
tlie  question  in  an  action  on  the  policy,  so 
that  refusal  to  direct  a  verdict  in  its  favor 
is  not  error,  although  tlie  provision  liad  not 
been  waived  or  complied  with  prior  to  the 
trial.  Harris  v.  North  American  Ins.  Co. 
4:  "37»  77  N.  E.  493,  190  Mass.  361. 

C05.  Failure  to  cancel  an  insurance  pol- 
icy upon  notice  to  the  agent  of  the  com- 
mencement of  foreclosure  proceedings 
against  the  property  waives  a  provision  in 
the  policy  making  it  void  in  case  such  pro- 
ceedings are  commenced.  Kelley  use  of 
Chisholm  v.  People's  Nat.  F.  Ins.  Co.  50: 
U64,  104  N.  E.  188,  262  111.  158. 

606.  Notification  of  a  policy  holder  by  an 
insurer  after  his  premium  note  is  overdue 
that,  unless  the  note  is  paid  at  once,  it 
will  be  compelled  to  return  the  note,  which 
will  cancel  the  policy,  is  a  waiver  of  the 
forfeiture  for  nonpayment  of  the  note  when 
due;  and  the  insurer  cannot  thereafter  in- 
sist upon  the  forfeiture  upon  learning  that 
the  insured  was  in  a  dying  condition  when 
the  notification  was  mailed.  New  England 
Mut.  L.  Ins.  Co.  V.  Springgate,  19:  227,  112 
S.  W    681,  129  Ky.  627. 

f.  Denial  of  liability. 

(See   also   same   heading  in  Digest   L.R.A. 
1-10.) 

In   case  of  guaranty  insurance,   see  infra, 
907. 


607.  Denial  by  an  insurance  company,  of 
liability  on  other  grounds,  within  the  time 
allowed  for  furnishing  preliminary  proofs 
of  loss,  is,  in  law,  a  waiver  of  the  condi- 
tions of  the  policy  requiring  such  proof. 
Scott  v.  Di.xie  F.  Ins.  Co.  40:  152,  74  S.  E. 
659,  70  W.  Va.  533. 

608.  Denial  of  any  liability  on  an  acci- 
dent-insurance policy  waives  a  provision 
that  suit  cannot  be  brought  on  the  policy 
until  the  lapse  of  a  certain  time  after  proof 
of  loss.  French  v.  Fidelity  &  C.  Co.  17: 
loii,  115  N.  W.  869,  135  Wis.  259. 

609.  Waiver  of  a  provision  in  an  insur- 
ance policy  that  suit  shall  not  be  brought 
until  a  certain  time  after  receipt  of  proofs 
of  loss  is  effected  by  absolute  denial  of  lia- 
bility under  the  policy.  Jennings  v.  Broth- 
erhood Acci.  Co.  18:  109,  96  Pac.  982,  44 
Colo.   68.  (Annotated) 

610.  Denial  by  the  adjuster  sent  to  in- 
vestigate a  loss  on  an  insurance  policy,  of 
all  liability  thereon,  constitutes  a  waiver 
Digest   1-52  L.R.A.(N.S.) 


of  proofs  of  loss.    Ohio  Farmers'  Ins.  Co.  ▼. 
Vogel,  3:  966,  76  N.  E.  977,  166  Ind.  239. 

on.  Failure  to  give  notice  of  loss  within 
a  reasonable  time,  as  required  by  the  terms 
of  the  policy,  is  not  waived  by  subsequent 
denial  of  all  liability  on  the  ground  that  the 
loss  is  not  covered  by  the  policy,  ^^tna  L. 
Ins.  Co.  V.  Fitzgerald,  i:  422,  75  N.  E.  262, 
165   Ind.  317. 

612.  A  fraternal  benefit  society  which  re- 
fuses to  pay  a  claim  on  the  ground  that  the 
member  was  addicted  to  the  excessive  use 
of  narcotics  cannot  subsequently  set  up  the 
defense  that  the  claim  is  on  behalf  of  the 
divorced  wife  of  the  member,  contrary  to 
its  by-laws,  which  fact  it  knew  at  the  time 
it  refused  payment.  Snvder  v.  Supreme 
Ruler,  F.  M.  C.  45:209,  122  S.  W.  981,  122 
Tenn.   248. 

613.  Refusal  of  a  mutual  benefit  society 
to  pay  a  claim  on  the  ground  that  the  mem- 
ber was  addicted  to  the  excessive  use  of 
narcotics,  which,  under  the  by-laws,  avoided 
the  policy,  waives  the  defense  that  the  con- 
clusion of  the  medical  director  against  i\ii 
claim  was  conclusive  on  claimant,  and  that 
no  appeal  had  been  taken  within  the  order 
as  required  by  the  by-laws.  Snyder  v.  Su- 
preme Ruler,  F.  M.  C.  45:209/122  S.  VV. 
981,  122  Tenn.  248. 

614.  1"he  duty  of  a  member  of  a  mutual 
benefit  society  under  its  by-laws  to  have  his 
claims  adjusted  by  the  tribunals  of  the  as- 
sociation, is  not  waived  by  a  refusal  to 
supply  blanks  for  proof  of  claim  because 
of  alleged  termination  of  membership  be- 
fore the  claim  matured.  Monger  v.  New  Era 
Asso.  24:  1027,  121  N.  W.  823,  156  Mich.  645. 

615.  A  mutual  benefit  society  waives  an 
offer  of  tender  of  the  old  certificate,  in  case 
it  denies  a  claim  for  an  immediate  piay- 
ment  of  disability  benefits  on  tiie  ground 
that  claimant  had  not  become  destitute  of 
means  of  support  as  required  by  the  certifi- 
cate. Supreme  Council  C.  B.  L.  v.  Grove, 
36:  913,  90  N.  E.  159,  176  Ind.  356. 

616.  Denial  by  an  insurer  of  liability  on 
the  ground  of  falsity  of  answers  as  to 
health,  in  ignorance  of  the  fact  that  the 
policy  had  never  been  put  in  force,  will  not 
estop  it  from  <Ienying  liability  on  the  lat- 
ter ground,  if  the  beneficiary  was  not,  by 
the  ground  of  the  refusal,  led  to  take  or 
refrain  from  taking  any  action  which  oper- 
ated to  his  injury.  Sovereign  Camp,  VV.  W. 
V.  Hall,  41:517,  148  S.  W.  526,  104  Ark. 
338. 

g.    Requiring,    accepting,    or   retaining 
notice  or  proofs  of  loss. 

(See   also   same   heading   in  Digest   L.R.A. 
1-70.J 

617.  Failure  of  an  insurer  to  demand 
full  proof  of  death  waives  his  right  to  ob- 
ject to  the  proof  given,  where  the  insured 
undertakes  to  incorporate  the  notice  and 
proof  in  the  same  communication,  and  the 
proof  of  the  cause  of  death  with  the  at- 
tending facts  meets  all  the  requirements 
of  the  policy,  e.xcept  that  it  is  not  as  full 


INSURANCE,  VI.  a. 


1587 


and  explicit  as  it  might  be.  Da  Rin  v. 
Casualty  Co.  27:  1164,  108  Pac.  649,  41 
Mont.   175. 

618.  Failure  to  notify  an  insured  within 
a  reasonable  time  after  the  filing  of  proof  a 
of  loss,  which  are  defective,  in  that  the  no- 
tary public  before  whom  the  same  was  sworn 
to  did  not  designate  his  official  title  uor 
attach  his  seal,  of  the  defect  therein,  es- 
tops the  insurer  from  afterward  objecting 
thereto.  Arkansas  Ins.  Co.  v.  Cox,  20:  775, 
98  Pac   552,  21  Okla.  873. 

619.  Waiver  of  the  defense  of  suicide  by 
an  insurer  is  not  effected  by  mailing  blanks 
for  proofs  of  loss  with  knowledge  of  the 
facts,  under  the  express  statement  that  they 
are  for  the  convenience  of  the  attorneys  of 
the  beneficiary,  and  with  the  distinct  under- 
standing that  no  rights  are  Avaived.     Tuttle 

V.  Iowa  State  Traveling  Men's  Asso.  7:  223, 
104  N.  W.  1131,  132  Iowa,  652. 

020.  Breach  of  the  iron-safe  clause  of  a 
fire  insurance  policy  is  waived  by  directing 
the  insured,  with  full  knowledge  of  such 
breach,  to  send  in  his  proofs  of  loss,  which 
results  in  the  sending  in  of  the  proofs  and 
the  incurring  of  expense  and  trouble  in  re- 
liance on  the  direction.  Rundell  v.  Anchor 
F.  Ins.  Co.  25:  20,  105  N.  W.  112,  128  Iowa, 
675.  (Annotated^ 

h.    Participation  in  adjustment. 

(See  also   same  heading  in  Digest  L.R.A. 
1-70.) 

Question  for  jury  as  to  waiver,  see  Tbial. 

053. 
See  also  supra,  574. 

621.  A  benefit  insurance  order  is  not  es- 
topped to  claim  that  a  beneficiary  certificate 
obtained  from  it  by  understatement  of  the 
age  of  the  applicant  is  void,  by  its  request 
that  the  beneficiary  name  someone  with 
whom  it  can  negotiate  with  reference  to  the 
claim.  Taylor  v.  Grand  Lodge  A.  O.  U.  W. 
3:  114,  105  N.  W.  408,  06  Minn.  441. 

622.  Negotiations  for  settlement  of  a 
claim  under  an  insurance  policy  made  under 
advice  of  claimant's  attorney,  which  finally 
culminate  in  claimant's  being  referred  to  de 
fendant's  attorneys,  who  inform  him  that 
suit  is  up  to  him,  will  not,  in  case  ample 
time  remains  for  beginning  suit  before  ex- 
piration of  the  limitation  period,  amount  to 
a  waiver  of  a  provision  in  the  policy  that 
suit  must  be  begun  witliin  twelve  months 
after  the  fire.  Dahrooge  v.  Rochester-Ger- 
man Ins.  Co.  48:  906,  143  N.  W.  608,  177 
Mich.  442. 

VI.  The  loss;  remedies  of  the  assured. 

a.  Notice;  proofs;  arhitration. 

(See  also   same  heading  in  Digest   L.R.A. 
1-70.) 

Penalty  for  failure  promptly  to  settle  claim, 

see  Pkxalties,  3. 
Digest   1-52  L.R.A.(N.S.) 


Notice. 

Waiver  of,  see  supra,  611. 

Notice    of    injury    to    employee,    see    infra, 

929-932. 
Notice    of    automobile    accident,    see    infra, 

943. 
Notice  of  accident,  to  servant  of  corporation 

insured  against  liability  for  injuries,  as 

notice  to  company,  see  Notice. 
Question    for    jury    as    to,    see    Trial,    655, 

656. 

623.  The  provision  of  Wis.  Laws  1901, 
chap.  235,  p.  313,  prohibiting  any  accident 
or  casualty  company  from  limiting  the  time 
for  an  insured  person  to  serve  notice  of  any 
injury  for  which  he  is  entitled  to  make  a 
claim  to  less  than  twenty  days,  and  provid- 
ing that  a  memorandum  in  respect  to  the 
matter  shall  be  clearly  and  conspicuously 
placed  on  the  face  of  the  policy,  and  further 
providing  that  a  specified  manner  of  service 
shall  be  sufficient,  does  not  ^relate  to  the 
claim  of  a  beneficiary  after  the  death  of  the 
insured  person.  Cady  v.  Fidelity  &  C.  Co. 
17:  260,  113  N.  W.  967,  134  Wis.  322. 

624.  A  memorandum  placed  in  a  policy 
issued  by  an  accident  or  casualty  company 
in  an  attempt  to  complv  with  the  terms  of 
Wis.  Laws  1901,  chap.  235,  p.  313,  prohibit- 
ing any  such  companj'  from  limiting  the 
time  for  an  insured  person  to  serve  notice 
of  any  injury  for  which  he  is  entitled  to 
make  a  claim,  to  less  than  twenty  days,  and 
providing  that  any  memorandum  in  respect 
to  the  matter  shall  be  clearly  and  conspicu- 
ously placed  on  the  face  of  the  policy  does 
not  apply  to  the  claim  of  a  beneficiary 
after  the  death  of  the  insured  person,  unless 
the  language  of  the  memorandum  is  unmis- 
takable. Cady  V.  Fidelity  &  C.  Co.  17:  260, 
113  N.  W.  967,  134  Wis.  322. 

625.  A  provision  of  a  policy  of  insurance 
against  loss  of  time  from  sickness,  requir- 
ing notice  to  be  given  the  insurer  within 
ten  days  from  the  beginning  of  the  sick- 
ness, cannot  be  set  aside  for  unreasonable- 
ness, since  it  would  interfere  with  the  con- 
stitutional right  to  freedom  of  contract 
Craig  V.  United  States  Health  &  Acci.  Ir:. 
Co.  18:  106,  61  S.  E.  423,  80  S.  C.  151. 

(Annotated) 

626.  A  provision  in  a  policy  insuring 
against  loss  of  time  from  sickness,  requiring 
notice  of  the  sickness  to  be  given  to  the  in- 
surer within  ten  days  of  its  beginning,  is 
reasonable.  Craig  v.  United  States  Health 
&  Acci.  Ins.  Co.  18:  106,  61  S.  E.  423,  80  S. 
C.   151. 

627.  A  provision  in  an  accident-insurance 
policy  requiring  written  notice  to  be  given 
to  the  insurer  within  ten  days  of  the,  acci- 
dent is  not  unreasonable.  Hatch  v.  United 
States  Casnaltv  Co.  14:  503,  83  N.  E.  398, 
197  Mass.  101.' 

628.  A  provision  of  a  policy  insuring 
against  loss  of  time  from  sickness,  requiring 
notice  to  be  given  to  the  insurer  at  its  home 
office  within  a  certain  time  after  the  be- 
ginning of  the  sickness,  is  complied  with  if 
the  notice  is  mailed,  although  it  does  not 
reach  the  insurer,  within  that  time.     Craig 


j588 


INSURANCE,  VI.  a. 


V.   United   States   Health   &   Acci.   Ins.   Co. 
i8:  io6,  61  S.  E.  423,  80  S.  C.  151. 

629.  An  insurance  company  which  acts 
upon  notice  given  by  a  third  person  of  an 
accident  to  a  policy  holder  incapacitated 
from  himself  giving  notice  thereof,  as  re- 
quired by  the  insurance  contract,  because 
of  resulting  unconsciousness,  receives  no- 
tice of  the  accident  within  the  meaning  of 
the  terms  of  the  policy.  Hilmer  v.  Western 
Travelers  Acci.  Asso.  27:  319,  125  N.  W- 
535,  86  Neb.  285. 

630.  One  who  is  accidentally  injured  so 
•  as  to  render  him  unconscious  and  there- 
after cloud  his  mind  so  that  he  cannot, 
within  the  time  limited  in  an  accident  in- 
surance policy,  intelligently  give  notice  to 
the  insurer  of  such  accident,  is  thereby 
excused  from  compliance  with  the  condi- 
tions of  the  policy  in  that  regard  while  so 
disabled.  Hilmer  v.  Western  Travelers 
Acci.  Asso.  2%:  319,  125  N.  W.  535,  88  Neb. 
285.  (Annotated) 

631.  An  assured  is  not  relieved  from  the 
obligation  imposed  upon  him  by  the  terms 
of  his  policy  to  give  notice,  by  himself  or 
his  representative,  within  a  certain  time,  of 
illness  or  injury,  by  the  fact  that  his  ill- 
ness is  such  as  to  render  him  delirious  and 
unable  to  remember  that  he  has  the  policy. 
Whiteside  v.  North  American  Acci.  Ins.  Co. 
35:  696,  93  N.  E.  948,  200  N.  Y.  320. 

632.  A  provision  in  an.  accident-insurance 
policy  that  written  notice  of  the  injury 
must  be  given  within  ten  days  of  the  event 
causing  such  injury  refers  to  the  accident, 
and  not  to  the  time  when  the  effect  is  dis- 
covered although  the  discovery  of  the  injuri- 
ous effect  is  not  made  until  more  than  ten 
days  after  the  accident.  Hatch  v.  United 
States  Casualty  Co.  14:  503,  83  N.  E.  398, 
197  Mass.  101.  (Annotated) 

633.  A  beneficiary  named  in  an  uccident- 
insurance  policy  can  secure  no  benefit  there- 
from if  the  insured  failed  to  take  the  neces- 
sary steps  to  bind  the  company  by  giving 
timely  notice  of  the  accident  as  required  by 
the  contract.  Hiit"h  v.  United  States  Cas- 
ualty Co.  14:  503,  83  N.  E.  398,  197  Mass. 
101. 

634.  Service  of  notice  of  claim  by  a  bene- 
ficiary in  an  accident-insurance  policy,  made 
as  soon  as  practicable  after  obtaining  knowl- 
edge of  the  existence  of  the  policy,  is  suffi- 
cient. Cady  V.  Fidelity  &  C.  Co.  ij:  260, 
113  N.  W.  967,  134  Wis.  322. 

635.  The  word  "immediate,"  in  an  insur- 
ance policy,  in  respect  to  giving  notice  of 
any  accident  or  injury  for  which  a  claim 
is  to  be  made,  by  settled  judicial  construc- 
tion antedating  the  policy  and  so  a  part 
thereof,  means  as  soon  as  practicable  under 
the  circumstances  of  the  case,  in  the  absence 
of  some  unmistakable  limitation  to  the  con- 
trary. Cady  V.  "Fidelity  &  C.  Co.  17:  260, 
113  N.  W.  967,  134  Wis.  322. 

636.  The  time  for  giving  notice  of  inca- 
pacity under  a  policy  insuring  against  sick- 
ness, which  requires  notice  within  ten  days 
of  total  disability,  does  not  commence  to 
run  until  insured  realizes  that  his  illness  is 
sudiciently  serious  to  prevent  him  from 
Digest  1-52  Ii.R.A.(N.S.) 


following  his  usual  occupation;  and,  there- 
fore, in  case  he  discovers  the  serious  nature 
of  his  illness  on  the  twentieth  day  of  the 
month,  and  gives  immediate  notice,  it  is  iu 
time,  although  he  laid  off  under  the  doc- 
tor's advice  on  the  first,  owing  to  what  was 
then  supposed  to  be  a  slight  indisposition, 
and  the  notice  fixes  the  beginning  of  the 
disability  at  that  time,  .lennings  v.  Broth- 
erhood Acci.  Co.  18:  109,  96  Pac.  982,  44 
Colo.  68. 

637.  The  time  for  giving  notice  of  a*  sick- 
ness, under  a  policy  insuring  against  loss  of 
time  therefrom  and  requiring  notice  to  be 
given  within  ten  days  from  the  "beginning 
of  the  illness,"  does  not  begin  to  run  luitil 
the  calling  of  a  physician,  where  the  policy 
also  provides  that  payment  shall  be  m<;ide 
at  a  certain  rate  for  the  time  after  tlie 
first  week  that  assured  is  continuously  con- 
fined within  the  house  and  regularly  visited 
by  a  physician  by  reason  of  the  illness. 
Craig  v.  United  States  Health  &  Acci.  Ins. 
Co.  18:  106,  61  S.  E.  423,  80  S.  C.  151. 

638.  Failure  of  the  general  officers  of  a 
corporation  insured  against  liability  for  in- 
juries done  by  its  horses  and  vehicles,  or 
of  its  agents  charged  with  the  duty  of  ad- 
justing claims  against  the  insurer,  to  re- 
ceive notice  of  an  accident,  will  not  excuse 
noncompliance  with  a  provision  of  the  pol- 
icy that  assured,  upon  occurrence  of  an  ac- 
cident, shall  give  immediate  notice  thereof 
to  the  insurer;  but  insured  is  charged  with 
the  knowledge  of  its  agents,  whose  duty  is, 
either  by  express  regulation,  or  by  super- 
vision over  the  servants  by  whom  the  ac- 
cident is  caused,  to  transmit  this  knowledge 
to  their  superiors,  or  to  the  corporation. 
Woolverton  v.  Fidelity  &  C.  Co.  16:  400,  82 
N.  E.  745,  190  N.  Y.  41. 

639.  A  mortgagee  for  whose  benefit  insur- 
ance is  taken  by  the  mortgagor  cannot  re- 
cover on  the  policy  if  the  notice  in  writing 
of  the  particulars  of  the  loss  is  not  given  as 
required  by  the  terms  of  the  policy,  although 
the  policy  places  the  duty  of  giving  the  no- 
tice upon  the  mortgagor,  and  provides  that 
the  mortgagee's  right  to  recover  shall  not  be 
afTeeted  by  any.  default  of  any  person  other 
than  himself  or  his  agents,  since  the  liabil- 
ity upon  the  policy  arises  only  when  the  no- 
tice is  given;  but  it  is  sufficient  if  the  no- 
tice on  behalf  of  the  mortgagee  is  given 
within  a  reasonable  time,  and  contains  prop- 
er information,  in  regard  to  the  loss,  of 
such  matters  as  a  mortgagee  reasonably 
may  be  expected  to  know.  Union  Inst,  for 
Sav.  v.  Phoenix  Ins.  Co.  14:  459,  81  N.  E. 
994,  196  Mass.  230.  (Annotated) 
Proofs   of   loss. 

Waiver  by  demanding,  see  supra,  V.  b,  5, 

g- 
Effect  of  padding  inventory  m,   see  supra, 

375. 
Imputing  to  insured  false  statements  in,  by 

agent,  see  supra,  376. 
Estoppel  by,  see  supra,  483. 
Waiver  as  to,  see  supra,  557,  607,  610. 
Necessity  that  proofs  of  death  be  copied  into 

bill  of  exceptions  on  appeal,  see  Appeal 

AND  Eerok,  244. 


INSURANCE,  VI.  a. 


1589 


Prejudicial  error  in  excluding  from  evi- 
dence, see  Appeal  and  Error,  1236. 

Error  in  instructions  as  to,  see  Appeal  and 
Error,  1381. 

Refusal  of  instruction  as  to  effect  of,  see 
Appeal  and  Error,  1434. 

Public  policy  as  to  requiring  establishment 
jf  accidental  nature  of  injury  before 
liability  attaches,  see  Contracts,  442. 

Fraud  in  .proofs  of  loss  as  basis  of  equity 
jurisdiction,  see  Equity,  64. 

Admissibility  of  proofs  of  death  in  evidence, 
see  Evidence,  871,  872. 

Weight  of  pro'if  of  death  as  evidence,  see 
Evidence,  2331. 

Wife  as  husband's  agent  in  making,  see 
Husband  and  Wife,  21-23. 

Defect  in,  as  defense  to  penalty  for  failure 
promptly  to  settle  claims,  see  Penal- 
ties, 3. 

Sufficiency  of  pleading  of  waiver  of,  see 
Pleading,  445. 

Question  for  jury  as  to  sufficiency  of  proofs 
of  death,  see  Trial,  650,  651. 

Question  for  jury  as  to  waiver  of,  see  Trial, 
652. 

See  also  supra,  371;  infra,  668. 

640.  A  provision  in  an  insurance  policy 
that  no  action  shall  be  brought  until  proof 
of  loss  has  been  rendered  is  binding,  and  no 
action  can  be  maintained  until  such  require- 
ment   is    complied    with.     Nance    v.    Okla- 

.  homa  F.  Ins.  Co.  38:  426,  120  Pac.  948,  31 
Okla.  208. 

641.  The  terms  of  an  insurance  policy  pro- 
viding that  false  swearing  of  the  assured  in 
making  the  proofs  of  loss  shall  avoid  the 
policy  do  not  apply  to  an  agent  ex  neces- 
sitate to  make  such  proofs,  unless  the  prin- 
cipal, with  knowledge  of  the  facts,  ratifies 
the  agent's  act.  Evans  v.  Crawford  County 
Farmers'  Mut.  F.  Ins.  Co.  9:  485,  109  N.  W. 
Q52,  130  Wis.  189. 

642.  An  insurance  policy  requirement 
that  proof  of  loss  shall  be  made  by  insured 
under  oath  requires  such  proof  to  be  sworn 
to  personally  by  the  insured,  although  in 
general  substantial  compliance  with  the  re- 
quirements as  to  proof  of  loss  is  sufficient. 
8t.  Paul  F.  &  M.  Ins.  Co.  v.  Mittendorf,  28: 
651,    104   Pac.   354,   24   Okla.    651. 

(Annotated) 

643.  Affirmative  proof  of  loss  under  an  ac- 
cident-insurance policy  is  given  where  the 
insurer  is  notified  of  the  death  of  the  in- 
sured, and  its  surgeon  takes  part  in  a  post 
mortem  examination,  although  formal  blanks 
are  not  filled  out  until  afterwards.  French 
V.  Fidelitv  &  C.  Co.  17:  loii,  115  N.  W.  869, 
135  Wis.  259. 

644.  The  question  of  the  sufficiency  of 
proofs  of  loss  under  a  life  insurance  policy 
must  be  determined  as  of  a  time  not  later 
than  the  institution  of  the  suit  upon  the 
policy.  Security  Bank  v.  Equitable  L. 
Assur.  Soc.  35:  159,  71  S.  E.  647,  112  Va. 
462. 

645.  A  requirement  of  an  accident  insur- 
ance policy  that  claimant  must  give  af- 
firmative proof  in  writing  of  the  death,  and 
of  its  being  the  proximate  result  of  external 
and  accidental  means,  is  satisfied  if  the 
Digest  1-52  L.R.A.(N.S.) 


beneficiary  makes  a  prima  facie  showing 
that  the  death  had  occurred,  and  had  re- 
sulted from  the  causes  stated.  Jenkins  v. 
Hawkeye  Commercial  Men's  Asso.  30:  1181, 
124  N.  W.  199,  147  Iowa,  113. 

646.  That  a  despondent  person  of  dissi- 
pated habits,  who  had  lost  his  property,  dis- 
appeared from  home  without  warning  to  his 
family,  was  traced  to  a  hotel  in  a  city, 
where  he  was  drinking  heavily,  and  then 
disappeared,  and  had  not  been  heard  of  since, 
and  could  not  be  traced  by  the  detectives 
or  police  bureaus  of  the  country,  is  not  sat- 
isfactory proof  of  his  death  prior  to  the  time 
of  the  lapsing  of  the  insurance  policies  on 
his  life  thirteen  months  later,  to  render  the 
insurer  liable  on  policies  providing  for  a 
liability  upon  receipt  of  satisfactory  proofs 
of  death.  Security  Bank  v.  Equitable  L. 
Assur.  Soc.  35:  159,  71  S.  E.  647,  112  Va.  462. 

647.  The  beneficiary  of  a  certificate  of  one 
who  disappears  and  is  not  again  heard  from 
does  not  surrender  the  right  to  produce 
proofs  of  death  within  a  reasonable  time 
after  the  expiration  of  the  statutory  period 
necessary  for  a  presumption  of  death  to 
arise,  when  the  presumption  is  necessary  in 
order  to  establish  death,  by  assuming  that 
the  insured  died  within  one  year  of  his  dis- 
appearance, and  thereafter  stopping  pay- 
ment of  assessments  on  that  account.  Behl- 
mer  v.  Grand  Lodge,  A.  0.  U.  W.  26:  305, 
123  N.  W,   1071,  109  Minn.  305. 

(Annotated) 

648.  The  beneficiary  of  a  benefit  certificate 
of  one  who  disappears  and  is  not  again  heard 
from  has  a  reasonable  time  after  the  expira- 
tion of  the  statutory  period  necessary  for  a 
presumption  of  death  to  arise  in  which  to 
file  proofs  of  death,  where  the  certificate  re- 
quires proof  of  death  as  a  prerequisite  to  the 
bringing  of  an  action,  but  fixes  no  particu- 
lar time  within  which  proofs  must  be  filed, — 
at  least  where  death  can  be  established  only 
by  aid  of  the  presumption  arising  from  tlie 
expitation  of  such  period;  and  therefore 
such  proofs  need  not  necessarily  be  furnished 
within  the  statutory  limitation  from  the 
time  of  death,  as  no  cause  of  action  accrues 
until  proof  of  death  can  be  made.  Behlmer 
V.  Grand  Lodge,  A.  O.  U.  W.  26:  305,  123  N. 
W.  1071,  109  Minn.  305. 

649.  A  delay  of  more  than  two  years  be- 
fore making  proofs  of  loss  under  a  life 
insurance  policy  which  merely  requires  such 
proofs  to  be  furnished,  without  specifying 
the  time,  is  excused  where  none  of  the  rela- 
tives of  the  insured  were  present  at  the 
time  of  the  death  of  insured,  who  was 
buried  by  a  fraternal  organization,  and  tliey 
did  not  learn  of  the  existence  of  the  policy 
until  a  few  days  before  the  proofs  were 
furnished.  Metropolitan  L.  Ins.  Co.  v. 
People's  Trust  Co.  41:  285,  98  N.  E.  513,  177 
Ind.  578.  (Annotated) 
A.rbitration;    appraisal. 

Arbitration  as  waiver,  see  supra,  V.  b,   5, 

h. 
Waiver  of  provision  as  to,  see  supra,  604. 
Review  by  courts  of  award  of  arbitrators, 

see  Courts,  172. 


1590 


INSURANCE,  VI.  a. 


Extent  of  equity  jurisdiction  in  suit  to  set 

aside  award,  see  Equity,  114. 
Burden  of  proving  condition  as  to,  see  Evi- 
dence, 549. 
Admissibility    of    evidence    of    attempt    to 

arbitrate,  see  Evidence,  2429. 
See  also  infra,  669,  670. 

050.  A  provision  near  the  end  of  an  acci- 
dent-insurance policy  which  has  prescribed 
certain  benefits  on  certain  conditions,  to  the 
effect  that,  in  case  of  disagreement  between 
the  parties  as  to  tlie  liability  of  the  insiiror, 
such  liability  shall  be  determined  by  arbi- 
tration, is  an  attempt  to  oust  the  courts  of 
their  jurisdiction,  and  is  void.  Lewis  v. 
Brotherhood  Acci.  Co.  17:  714,  79  N.  E. 
802,  194  Mass.  1. 

651.  A  provision  for  arbitration  in  a 
standard  insurance  policy  the  form  of  which 
has  been  approved  by  the  legislature  can- 
not be  declared  void  as  against  public  pol- 
io v.  Oradv  v.  Home  F.  &  M.  Ins.  Co.  4: 
288,  63  Atl.  173,  27  R.  I.  435. 

652.  A  policy  of  fire  insurance  providing 
that,  in  the  event  of  a  disagreement  between 
the  insurer  and  the  insured  as  to  the 
amount  of  loss,  the  same  shall  be  ascer- 
tained by  appraisers,  and  that  the  loss  shall 
not  become  payable  until  sixty  days  after 
the  notice,  ascertainment,  and  satisfactory 
proof  of  loss  required  by  the  policy  have 
been  received  by  the  insurer,  "including  an 
award  by  appraisers  when  appraisal  is  re- 
quired," imposes  no  obligation  on  the  in- 
surer to  demand  an  appraisal.  Graham  v. 
German  American  Ins.  Co.  15:  1055,  79  N. 
E.  930,  75  Ohio  St.  374. 

653.  Failure  of  an  insurer  to  demand  ap- 
praisers to  adjust  the  loss,  before  the  time 
stipulated  in  the  policy  for  payment  of  the 
loss,  waives  the  right  to  them,  where  the 
policy  provides  that  the  loss  shall  not  be- 
come payable  until  sixty  days  after  notice, 
ascertainment,  estimate,  and  satisfactory 
proof  of  the  loss  have  been  received  by  the 
company,  including  an  award  by  appraisers 
when  appraisal  has  been  required.  Win- 
chester V.  North  British  &  Mercantile  Ins. 
Co.   35:404,   116  Pac.   63,   160  (a!.   1. 

654.  Waiver  of  arbitration  as  provided  for 
in  an  insurance  policy  cannot  be  inferred  by 
the  jury  in  the  absence  of  proof  of  some 
conduct  on  the  part  of  the  insurer  tending 
to  support  it.  Union  Inst,  for  Sav.  v.  Phoe- 
nix Ins.  Co.  14:  459,  81  N.  E.  994,  196  Mass. 
230. 

655.  An  insurance  company,  by  asserting 
the  validity  of  an  award  of  appraisers, 
waives  its  right  to  have  the  loss  again  ap- 
praised when  the  first  award  is  set  aside 
for  invalidity.  J^]tna  Ins.  Co.  v.  Jester,  47: 
1 191,  132  Pac.  130,  37  Okla.  413. 

656.  Stipulations  in  a  policy  of  fire  in- 
surance, that,  in  the  event  of  a  disagree- 
ment between  the  insurer  and  the  insured 
as  to  the  amount  of  loss,  the  same  shall  be 
ascertained  by  appraisers,  and  that  the 
amount  thus  determined  shall  not  become 
payable  until  sixty  days  after  notice,  ascer- 
tainment, and  satisfactory  proof  of  loss, 
and  that  no  action  shall  be  maintainable 
therefor  until  after  a  full  compliance  with 
Digest  1-52  Ii.R.A.(N.S.) 


sucli  requirements, — constitute  a  condition 
precedent  which  imposes  an  obligation  on 
the  insured,  in  the  event  of  disagreement  as 
to  the  amount  of  the  loss,  to  procure  an 
award  or  ascertainment  of  the  loss  by  ap- 
praisers, or  to  show  a  legal  excuse  therefor, 
before  he  can  maintain  a  suit  on  the  pol- 
icv,  except  as  such  condition  is  modified  bv 
tlie  provisions  of  Ohio  Rev.  Stat.  1906.  § 
3643,  as  to  total  losses.  Graham  v.  (ice- 
man American  Ins.  Co.  15:  1055*  79  N.  E. 
930,  75  Ohio  St.  374.  (Annotated) 

657.  Arbitration  as  to  the  amount  of  the 
loss  is  a  condition   precedent  to  an   action 

on  an  insurance  policy,  where  the  policy 
expressly  provides  that  no  action  sliall  be 
sustainable  until  after  full  compliance  with 
all  conditions,  one  of  which  is  that  in  case 
of  dispute  the  amount  of  loss  shall  be  fixed 
by  arbitration.  Crady  v.  Home  F.  &  M.  Ins. 
Co.  4:  288,  63  Atl.  173,  27  R.  I.  435. 

658.  Under  a  statute  requiring  an  in- 
surance company  to  pay  the  full  amount 
of  the  policy  in  case  of  a  total  loss,  and  in 
case  of  a  partial  loss  the  amount  of  loss 
so  sustained,  and  another  statutory  pro- 
vision that,  if  there  is  no  valuation  in  the 
policy,  the  measure  of  indemnity  in  an 
insurance  against  fire  is  the  full  amount 
stated  in  the  policy,  although  a  policy  cov- 
ering a  private  car  stipulates  that,  4n  case 
of  a  loss  and  disagreement  in  regard  there- 
to, an  appraisal  shall  be  had  to  determine 
the  loss,  no  appraisal  is  necessary  to  en- 
title the  owner  of  the  car,  which  was 
destroyed  by  fire  so  that  there  was  noth- 
ing left  but  the  iron  and  steel  work,  and 
this  was  so  injured  as  to  be  incapable  of 
use  in  another  car,  to  recover  the  full 
amount  of  the  policy.  Springfield  F.  &  M. 
Ins.  Co.  V.  Homewood,  39:  iiCi2,  122  Pac. 
196,  32  Okla.  521. 

659.  Upon  an  appraisal  as  required  by 
the  terms  of  a  fire  insurance  policy  in  the 
event  of  a  loss,  and  a  disagreement  as  to 
the  amount  of  such  loss,  the  insured  has 
the  right,  if  he  demands  it,  to  introduce 
evidence  before  the  appraisers  as  to  the  ex- 
tent of  his  loss,  and  where  he  is  refused 
permission  upon  demand  to  introduce  evi- 
dence, the  award  is  not  binding  upon  him. 
.'Etna  Ins.  Co.  v.  Jester,  47:  1191,  132  Pac. 
130,  37  Okla.  413.  (Annotated) 

660.  The  rules  applicable  to  common-law 
arbitrations  apply  in  proceedings  to  ap- 
praise losses  taken  under  the  act  of  1913 
(Minn.  Laws  1913,  c.  421  [Gen.  St.  1913, 
§  3318] ) ,  in  determining  the  right  of  the 
parties  to  be  heard  and  to  present  evidence, 
and  the  competency  of  the  appraisers. 
American  C.  Ins.  Co.  v.  District  Court, 
52:  496,  147  N.  W.  242,  125  Minn.  374. 

661.  The  mere  fact  that  an  appraiser 
appointed  under  the  terms  of  an  insurance 
policy  by  one  of  the  parties  thereto,  to 
appraise  a  loss,  is  not  an  expert  in  the 
line  of  business  in  which  the  loss  occurred, 
is  not  alone  sufficient  to  render  him  incom- 
petent within  the  meaning  of  a  provision 
that  such  loss  shall  be  determined  by  "com- 
petent,    disinterested,     and     impartial     ap- 


INSUEANCE,  VI.  b,  1. 


1501 


praisers."  American  C.  Ins.  Co.  v.  Dis- 
trict Court,  52:  496,  147  N.  W.  242,  125 
Minn.  374.  (Annotated) 

662.  No  question  as  to  the  title  of  the  in- 
sured can  be  considered  by  referees  appoint- 
ed in  accordance  with  a  clause  in  a  standard 
insurance  policy  which  provides  that,  upon 
failure  of  the  parties  to  agree  as  to  the 
amount  of  loss,  it  should  be  referred  to  ar- 
bitrators, the  award  of  a  majority  of  whom 
should  be  conclusive  as  to  the  amount  of 
loss  and  damage.  Dimton  v.  Westchester 
F.  Ins.  Co.  20:  1058,  71  Atl.  1037,  104  Me. 
372. 

663.  The  unwillingness  or  inability  of  the 
arbitrator  chosen  by  insured  from  the  list 
furnished  by  the  insurer,  to  serve,  from  a 
cause  arising  after  he  is  chosen,  will  con- 
stitute a  waiver  on  the  part  of  the  insurer 
of  its  right  to  arbitrate  the  amount  of 
loss,  where  the  statute  provides  that  if  the 
company  shall  not,  within  ten  days  after  re- 
quest, name  three  men  each  of  whom  shall 
be  willing  to  act  as  a  referee,  it  shall  be 
deemed  to  have  waived  its  right  to  arbi- 
tration. Mowry  &  Payson  v.  Hanover  F. 
Ins.  Co.  29:  498,  76  Atl.  875,  106  Me.  308. 

664.  One  chosen  to  appraise  the  loss  in- 
flicted by  fire  upon  insured  property,  who, 
after  learning  the  opinion  of  another  ap- 
praiser as  to  the  amount  of  the  loss,  and, 
considering  the  sum  designated  as  insuffi- 
cient, confers  with  the  umpire  with  a  view 
to  agreement  with  him,  is  not  entitled  there- 
after to  withdraw  from  the  appraisal;  and 
an  award  made  by  the  umpire  and  the  other 
appraiser  is  binding.  Garrebrant  v.  Conti- 
nental Ins.  Co.  (N.  J.  Err.  &  App.)  12:  443, 
67  Atl.  90,  75  N.  J.  L.  577. 

665.  A  provision  of  an  insurance  policy 
that,  in  event  of  disagreement  as  to  amount 
of  loss,  each  party  shall  appoint  an  ap- 
praiser, and  the  two  appraisers  shall  se- 
lect an  umpire  and  appraise  the  loss,  and 
that  no  action  shall  be  maintained  on  the 
policy  until  such  appraisement,  when  ap- 
praisal has  been  required,  is  satisfied  as  to 
the  insured  when  he,  acting  in  good  faith, 
appoints  an  appraiser;  and  it  is  not  in- 
cumbent on  him,  when  the  appraisement 
fails  without  his  fault,  to  appoint  or  pro- 
pose the  appointment  of  a  second  apprais 
er,  as  a  condition  precedent  to  suit  on  the 
policy.  German-American  Ins.  Co.  v.  Jer- 
rils,  28:  104,  108  Pac.  114,  82  Kan.  320. 

(Annotated) 

666.  An  award  made  upon  an  agreement 
for  appraisal  under  a  standard  fire-insur- 
ance policy  is  not  open  to  attack,  in  an  ac- 
tion at  law,  for  misconduct  on  the  part  of 
the  umpire.  Garrebrant  v.  Continental  Ins. 
Co.  (N.  J.  Err.  &  App.)  12:  443,  67  Atl.  90, 
75  N.  J.  L.  577. 

667.  Failure  of  arbitration  through  no 
fault  of  the  iiismance  company  does  not 
abrogate  a  provision  in  the  policy  that  no 
action  sliall  be  brought  until  the  amount 
of  the  loss  has  been  settled  by  arbitrators, 
and  there  is  nothing  to  show  that  arbitra- 
tion has  become  impossible.  Grady  v.  Home 
F.  &  M.  Ins.  Co.  4:  288,  63  Atl.  173,  27  R. 
I.  435.  (Annotated) 
Digest  1-52  L.R.A.(N.S.) 


Rights  of  mortgagee. 

068.  Unless  the  mortgagee  clause  attached 
I  to  a  fire  insurance  policy  makes  it  obliga- 
tory on  the  mortgagee  to  furnish  proofs  of 
loss  and  an  appraisement,  it  is  not  a  con- 
dition precedent  to  his  right  of  action  that 
he  furnish  them.  Reed  v.  Firemen's  Ins. 
Co.  (N.  J.  Err.  &  App.)  35:  343,  80  Atl.  462, 
81  N.  J.  L.  523. 

669.  A  mortgagee  for  whose  benefit  insur> 
ance  is  taken  cannot  enforce  the  policy  un- 
less the  amount  of  loss,  in  the  absence  of 
agreement  as  to  its  amount  on  waiver  of  ar- 
bitration, is  ascertained  by  arbitration  as 
provided  by  the  terms  of  the  policy,  although 
the  policy  places  the  duties  with  respect  to 
arbitration  upon  the  mortgagor,  and  pro- 
vides that  no  default  of  any  person  other 
than  the  mortgagee  or  his  agents  shall  afl"ect 
his  right  to  recover  in  case  of  loss.  Union 
Inst,  for  Sav.  v.  Phoenix  Ins.  Co.  14:  459, 
81  N.  E.  994,  196  Mass.  230. 

670.  A  "mortgage  clause"  attached  to  a 
fire  insurance  policy  at  the  time  of  execu- 
tion, which  makes  the  loss,  if  any,  under 
the  policy,  payable  to  the  mortgagee  as  his 
interest  may  appear,  is  not  an  assignment  of 
the  policy  to  the  mortgagee,  and,  in  the  ab- 
sence of  fraud  or  collusion,  he  is  bound  by 
the  award  of  appraisers  provided  for  and 
required  by  the  terms  of  the  policy  in  the 
event  of  a  disagreement  between  the  insured 
and  the  insurance  company  as  to  the  amount 
of  the  loss,  although  the  mortgagee  was  not 
a  party  to,  and  had  no  notice  of,  the  ap- 
praisement and  award.  Erie  Brewing  Co.  v. 
Ohio  Farmers'  Ins.  Co.  25:  740,  89  N.  E. 
1065,   81   Ohio   St.   1.  (Annotated) 

b.  Risks  and  causes  of  loss,  injury,  or 
death. 

1.  Under  policies  covering  property. 

(See   also   same   heading   in  Digest  L.R.A. 
1-10.) 

Burden  of  proof  as  to,  see  Evidence,  553, 

554. 
Opinion  as  to  cause  of  fall  of  building,  see 

Evidence,  1075. 
Sufficiency   of   proof   of   cause   of   loss,    see 

Evidence,  2061. 

671.  A  statute  providing  that  when  a  peril 
is  specially  excepted  in  a  contract  of  insur- 
ance, a  loss  which  would  not  have  occurred 
but  for  such  peril  is  thereby  excepted,  al- 
though the  immediate  cause  of  the  loss  was 
a  peril  which  was  not  excepted,  does  not  op- 
rate  to  give  the  insurer  an  exemption  wid- 
er than  that  which  he  has  expressly  stipu- 
lated for.  Williamsburgh  City  F.  Ins.  Co. 
V.  Willard,  21:  103,  164  Fed.  404,  90  C.  C.  A. 
392. 

672.  Damages  resulting  from  efforts  made 
In  good  faith  to  save  property  from  a  fire, 
by  breakage,  removal,  water,  or  from  loss  by 
theft  consequent  thereto,  are  within  the  loss 
covered  by  a  policy  against  damage  by  fire, 
unless  expressly  excepted  therefrom  by  stip- 


1592 


INSURANCE,  VI.  b,  1. 


Illation.      Farmers'   &   M.   Ins.   Co.  v.   Cuff, 
35:  892,  11(3  Pac.  435,  29  Okla.  106. 

(Annotated) 

673.  A  clause  in  a  fire  insurance  policy 
exempting  tlie  insurer  from  loss  by  lire 
from  or  occasioned  by  locomotive  engines 
does  riot  exempt  from  loss  from  fire  com- 
municated by  buildings  burning  on  tlie  rail- 
road right  of  way  which  were  ignited  by 
the  sparks  from  a  locomotive  engine.  Mont- 
gomery V.  Southern  Mut.  Ins.  Co.  51:  518, 
88  Atl.  924,  242  Pa.  86.  (Annotated) 

674.  Insurance  against  all  direct  loss  and 
damage  by  fire  includes  loss  by  smoke,  soot, 
and  excessive  heat  due  to  a  fire  kindled 
with  unusually  inflammable  materials  in 
the  furnace  designed  to  heat  the  building, 
although  the  fire  does  not  escape  from  the 
furnace,  and  is  not  communicated  to  the 
property  injured.  O'Connor  v.  Queen  Ins. 
Co.  25:  501,  122  N.  W.  1038,  1122,  140  Wis. 
388. 

675.  A  provision  in  a  policy  of  insurance 
against  all  immediate  loss  or  damage 
caused  by  the  accidental  discharge  or  leak- 
age of  water  from  an  automatic  sprinkler 
system,  that  it  does  not  cover  loss  or  dam- 
age resulting  from  freezing,  will  not  exempt 
the  insurer  from  liability  for  damage 
caused  by  leakage  from  a  pipe  burst  by 
frost.  Canadian  C.  &  Boiler  Ins.  Co.  v. 
Boulter-Davies  &  Co.  2  B.  R.  C.  622,  39 
Can.  S.  C.  558.  (Annotated) 
Automobile   insurance. 

67.6.  A  fire  burning  an  automobile  origi- 
nates within  the  vehicle,  within  the  mean- 
ing of  an  exception  of  fires  so  originating  in 
a  policy  of  insurance  on  it,  where,  in  conse- 
quence of  the  machine's  running  into  a  ditch, 
gasolene  leaks  from  the  tank,  and  the  vapor 
penetrates  the  lamp  forming  the  headlight 
and  explodes,  causing  the  fire.  Preston  v. 
^tna  Ins.  Co.  19:  133,  85  N.  E.  1006,  193 
N.  Y.  142. 

677.  A  provision  in  an  insurance  policy 
that  damages  to  an  automobile  resulting 
from  collision  due  wholly  or  in  part  to  up- 
sets shall  be  excluded  does  not  operate  to 
defeat  recovery  where  an  automobile  ran 
off  a  highway  bridge,  was  precipitated  in 
the  water  below,  and  landed  at  the  bottom 
of  the  stream  upside  down,  the  collision 
not  being  due  to  the. upset;  the  upset  be- 
ing rather  the  result  of  the  collision.  Har- 
ris V.  American  Casualty  Co.  (N.  J.  Err. 
&  App.)  44:  70,  85  Atl.  194,  83  N.  J.  L.  641. 

678.  Where  an  automobile  has  passed 
through  the  guard  rail  of  a  bridge  and 
been  precipitated  into  the  stream  below, 
there  is  a  "collision"  with  the  water  and 
bed  of  the  stream,  within  the  meaning  of 
a  policy  insuring  the  automobile  against 
accidents  resulting  from  collision.  Harris 
V.  American  Casualty  Co.  (N.  J,  Err.  & 
App.)   44:  70,  85  Atl.  194,  83  N.  J.  L.  641. 

(Annotated) 
Ijoss  caused  by  order  of  civil  author- 
ity. 

679.  The  word  "indirectly"  limits  the 
words  "order  of  any  civil  authority,"  as 
well  as  the  other  words  in  the  clause  in  an 
insurance  policy  exempting  the  insurer 
Digest  1-52  Ii.R.A.(N.S.) 


from  liability  for  loss  "caused  directly  or 
indirectly  by  invasion,  insurrection,  riot, 
civil  war,  or  commotion,  or  military  or 
usurped  power,  or  by  order  of  any  civil 
authority."  Hocking  v.  British  America 
Assur.  Co.  36:  1155,  113  Pac.  259,  62  Wash. 
73. 

680.  An  insurer  is  not  liable  for  the  death 
of  a  horse  killed  under  advice  of  a  veteri- 
nary because  afflicted  with  glanders,  for 
which  the  civil  authorities  would  have  killed 
it  on  notice  under  the  statute,  under  a 
policy  insuring  against  loss  by  death  from 
disease,  but  withholding  liability  for  loss 
caused  by  "order  of  any  civil  authority." 
Joplin  V.  National  Live  Stock  Ins.  Asso. 
44:  569,   122   Pac.  897,  61  Or.   544. 

(Annotated) 
Earthquakes. 

681.  An  insurer  is  liable  for  destruction 
of  property  by  fire  following  an  earthquake, 
under  a  policy  by  which  it  insures  against 
direct  loss  or  damages  by  fire  except  loss 
caused  by  invasion  and  certain  other  named 
causes,  or  (unless  fire  ensues,  and,  in  that 
event,  for  the  damage  by  fire  only)  by  ex- 
plosion, bursting  of  a  boiler,  earthquake, 
hurricane,  or  lightning.  McEvoy  v.  Secur- 
ity F.  Ins.  Co.  22:  964,  73  Atl.  157,  110  Md. 
275. 

682.  Destruction  of  a  building  by  fire 
spread  from  ancfther  building  which  is  set  on 
fire  by  an  earthquake  is  not  within  the  ex- 
ception in  an  insurance  policy  against  all  di- 
rect loss  or  damage  by  fire,  that  the  com- 
pany shall  not  be  liable  for  loss  occasioned 
by  or  through  any  earthquake,  where  the 
clause  of  the  exception  follows  another 
which  excepted  from  liability  for  loss  caused 
directly  or  indirectly  by  certain  specified 
causes.  Williamsburgh  City  F.  Ins.  Co.  v. 
Willard,  21:  103,  164  Fed.  404,  90  C.  C.  A. 
392.  (Annotated) 

683.  An  insurer  is  liable  for  the  entire 
loss  caused  by  the  burning  of  goods  in  a 
buiding,  the  walls  of  which  fell  from  an 
earthquake  shock,  where  they  began  to  burn 
before  the  walls  fell,  although  after  the 
shock  had  begun,  and  the  walls  fell  before 
the  fire  had  done  any  material  damage, 
under  a  policy  providing  that  if  a  building 
or  any  part  thereof  fall  except  as  the  result 
of  fire,  the  insurance  on  the  building  or 
its  contents  shall  immediately  cease.  Davis 
V.  Connecticut  F.  Ins.  Co.  32:  604,  112  Pac. 
549,  158  Cal.  766.  (Annotated) 
Cyclones,  tornadoes,  etc. 

684.  A  provision  contained  in  a  "light- 
ning clause"  attached  as  a  rider  to  a  fire 
insurance  policy,  that  the  policy  shall  not 
cover  loss  or  damage  by  cyclone,  tornado,  or 
wind  storm,  is  limited  to  the  rider,  and 
does  not  apply  to  or  vary  the  contract  aa 
contained  in  the  policy.  Russell  v.  Ger- 
man F.  Ins.  Co.  10:  326,  111  N.  W.  400,  100 
Minn.  528. 

685.  An  exception  in  a  policy  insuring 
against  loss  caused  by  the  accidental  dis- 
charge of  an  automatic  fire  extinguisher,  of 
injury  from  leakage  resulting  from  earth- 
quakes or  cyclones,  or  from  blasting  or  ex- 
plosions,   will    include    loss    from    leak^g^ 


INSURANCE,  VI.  b,  2. 


1593 


caused  by  a  wind  storm  resembling  more 
technically  a  tornado  than  a  cyclone,  and 
causing  the  injury  by  its  high  velocity  rath- 
er than  its  circular  motion.  Maryland  Cas- 
ualty Co.  V.  Finch,  8:  308,  147  Fed.  388,  77 
C.   C.   A.    566.  (Annotated) 

Explosion. 

Review  of  finding  that  fire  preceded  explo- 
sion, see  Appeal  and  Ebkor,  993. 
Burden  of  proof  in  case  of,  see  Evidence, 

553,  554. 
Sufficiency    of    evidence   to    show   that    fire 
preceded  explosion,  see  Evidence,  2334. 
•  See  also  supra,  685. 

686.  The  accidental  ignition  of  gas  by 
lighting  a  match,  gas  jet,  or  lamp  so  as  to 
cause  an  explosion  does  not  render  the  re- 
sulting explosion  of  the  gas  the  result  of 
fire,  which  will  take  the  loss  out  of  the  pro- 
vision of  an  insurance  policy  that  the  in- 
surers shall  not  be  liable  for  loss  by  explo- 
sion unless  fire  ensues,  and  in  that  event 
for  the  damage  by  fire  only.  German  Ameri- 
can Ins.  Co.  V.  Hyman,  16:  77,  94  Pac.  27, 
42  Colo.  156. 

687.  That  an  explosion  is  caused  by  a  fire 
in  a  building  does  not  relieve  the  insurer 
from  liability  for  the  loss,  under  a  policy  in- 
suring against  loss  by  fire  except  loss  caused 
directly  or  indirectly  by  explosion  of  any 
kind,  unless  fire  ensues,  and  in  that  event 
for  the  damage  bv  fire  only.  Wheeler  v. 
Phenix  Ins.  Co.  38:  474,  96  N.  E.  452,  203 
N.  Y.  283.  (Annotated) 
liightning;. 

Sufficiency  of  evidence  as  to  attachment  of 
lightning  clause  to  policy,  see  Tbial, 
100. 

See  also  supra,  684. 

688.  Insurance  against  direct  loss  or  dam- 
age by  lightning  includes  injuries  to  the 
property  by  being  precipitated  into  water 
and  debris  by  the  throwing  down  of  the 
walls  of  the  building  by  a  lightning  stroke. 
Cummings  v.  Pennsylvania  F.  Ins.  Co.  37: 
1160.  134  N.  W.  79,  1.53  Iowa,  579. 

689.  Recovery  for  loss  of  a  barn  by  being 
ktaocked  down  by  lightning,  but  not  burned, 
cannot  be  had  under  a  policy  in  a  mutual 
company  insuring  against  loss  by  fire,  al- 
though the  custom  has  been  to  pay  such 
losses  and  to  levy  assessments  therefor  on 
the  policy  holders,  since  such  paymenta 
were  merely  misappropriations  of  funds  by 
the  company.  Sleet  v.  Farmers'  Mut.  F.  Ins. 
Co.   19:  421,   113   S.  W.   515,  —  Ky.  — . 

(Annotated) 

690.  Liability  for  injuries  to  insured 
goods  by  the  throwing  down  of  the  build- 
ing by  lightning  is  not  taken  away  by  a 
provision  of  the  policy  insuring  it  against 
fire  and  lightning,  that  if  the  building  or 
any  part  thereof  fall,  except  as  the  result 
of  fire,  all  insurance  shall  cease.  Cum- 
mings v.  Ponnsvlvania  F.  Ins.  Co.  37:  1169, 
134  N.  W.  79,  153  Iowa,  579. 

Riot;    mob. 

691.  The  unauthorized  burning  of  a  build- 
ing Dy  a  deputy  United  States  marshal,  to 
eff'ect  the  arrest  of  persons  who  had  taken 
refuge  therein  and  were  holding  tlie  au- 
thorities at  bay  with  firearms,  does  not 
Digest   1-52  L.R.A.(N.S.) 


come  within  a  provision  of  a  policy  of  in- 
surance upon  the  building,  exempting  the 
insurer  from  liability  for  loss  caused  di- 
rectly or  indirectly  by  riot  or  by  order  of 
any  civil  authority,  for  although  the  fugi- 
tives were  guilty  of  a  riot,  their  acts  were 
not  the  cause  of  the  loss,  which  was  due 
to  the  unlawful  acts  of  the  marshal. 
American  Central  Ins.  Co.  v.  Stearns  Lum- 
ber Co.  36:  566,  140  S.  W.  148,  145  Ky.  255. 

692.  One  who  has  insured  property 
against  all  direct  loss  or  damage  by  fire,  ex- 
cept as  hereafter  provided,  among  which  ex- 
ceptions is  loss  caused  directly  or  indirect- 
ly by  riot,  is  not  liable  for  property  burned 
by  an  armed  and  masked  body  of  men  who 
overawe  and  terrorize  the  civil  authorities 
and  inhabitants  of  a  town,  and  proceed  to 
burn  the  property,  because  they  think  it  is 
intended  to  be  put  to  a  use  detrimental  to 
their  interests.  Spring  Garden  Ins.  Co.  v. 
Imperial  Tobacco  Co.  20:  277,  116  S.  W.  234, 
132  Ky.  7.  (Annotated) 
Negligent  or  wilfnl  act. 

693.  A  marine  underwriter  is  not  liable 
for  a  loss  occurring  through  the  deliberate 
act  of  the  master  of  the  vessel,  who  repre- 
sents the  insured,  in  pushing  through  dan- 
gerous ice  for  the  purpose  of  reaching  his 
destination  quickly,  and  thus  realizing  the 
object  of  his  principal's  undertaking.  Stand- 
ard Marine  Ins.  Co.  v.  Nome  Beach  Light- 
erage &  Transp.  Co.  i:  1095,  133  Fed.  636, 
67  C.  C.  A.  602.  (Annotated) 

694.  Fire  resulting  from  the  negligence 
of  the  health  officer  in  attempting  to  fumi- 
gate a  house  under  order  of  the  board  of 
health  is  within  a  clause  in  a  policy  of 
insurance  thereon  exempting  the  insurer 
from  liability  for  fire  caused  directly  or 
indirectly  by  order  of  any  civil  authority. 
Hocking  v.  British  America  Assur.  Co.  36: 
1155,   113   Pac.  259,  62   Wash.   73. 

(Annotated) 
Destruction  by  insured  ivbile  insane. 

695.  The  burning  of  property  by  the  in- 
sured while  insane  will  not  absolve  the  in- 
surer from  liability  in  the  absence  of  any 
provision  to  that  effect  in  the  policy.  Bin- 
dell  V.  Kenton  County  A.  F.  Ins.  Co.  17: 
189,  ).08  S.  W.  325,  128  Ky.  389. 

(Annotated) 
Mairine  insurance. 
See  supra,  693. 

2.   Under  life  policies. 

a.  In  general. 

(See   also   same  heading  in  Digest   L.R.A. 
1-10.) 

Burden  of  proof  as  to,  see  Evidence,  113, 

114. 
Evidence  on  question  of,  see  Evidence,  1334, 

1558. 
Sufficiency  of  evidence  as  to  cause  of  death, 

see  Evidence,  2077-2080. 

696.  A  certificate  or  policy  of  insurance 
may  provide  that  there  shall  be  no  liability 
on  the  part  of  the  insurer  if  the  insured  die 


1594 


INSURANCE,  VI.  b,  2. 


within  a  year  from  some  cause  or  disease 
excepted  from  the  general  provisions  of  the 
contract  of  insurance.  Red  Men's  Fraternal 
Acci.  Asso.  V.  Kippey,  50:  1006,  103  N.  E. 
345,  104  N.  E.  641,  181  Ind.  454. 

697.  The  question  of  forfeiture  is  not  in- 
volved in  a  defense  to  an  action  upon  an 
insurance  policy  which  sets  up  that  the 
insured  died  within  the  time  specified  of  a 
disease  excepted  for  a  given  time  from  the 
operation  of  the  policy.  Red  Men's  Fra- 
ternal Acci.  Asso.  V.  Rippey,  50:  1006,  103 
N.  E.  345,  104  N.  E.  641,  181  Ind.  454. 
Murder  of  insured. 

Sufficiency  of  allegations  as  to,  see  Plb:ad- 
INQ,  523.  • 

698.  The  beneficiary  in  a  life  insurance 
policy,  whose  intentional  and  felonious  act 
causes  the  death  of  the  assured,  cannot 
recover  upon  the  policy.  Filmore  v.  Met- 
ropolitan L.  Ins.  Co.  28:  675,  92  N.  E.  26. 
82  Ohio  St.  208. 

699.  One  is  the  offending  party  in  a  diffi- 
culty, within  the  meaning  of  a  by-law  of 
a  benefit  association  that  no  benefits  shall 
be  paid  on  the  death  of  or  disability  of  any 
member  who  has  been  killed  or  injured  in 
any  quarrel,  controversy,  or  fight  in  which 
such  member  is  the  offending  party,  if  he 
brought  on  the  difficulty  by  advancing  on 
the  other  party  thereto  in  a  threatening  man- 
ner, unless  he  in  good  faith  believed,  and 
had  reasonable  ground  to  believe,  that  he 
was  then  and  there  in  danger  of  losing  his 
life  or  suffering  great  bodily  harm  at  the 
hands  of  such  other  party,  and  it  was  nec- 
essary, or  appeared  to  him  to  be  necessary, 
that  he  should  act  in  the  manner  he  did 
to  protect  himself  from  threatened  assault. 
Knights  of  Maccabees  v.  Shields,  49:  853, 
160  S.  W.   1043,   156  Ky.  270. 

700.  The  killing  by  a  husband  of  the  para- 
mour of  his  wife,  although  under  such  cir- 
cumstances that  the  law  would  class  the  act 
as  justifiable  homicide,  is  not  at  the  "hands 
of  justice,"  within  the  meaningjjf  a  stipula- 
tion in  a  life  insurance  policy  exempting  the 
insurer  from  full  liability  if  the  death  of  the 
insured  is  caused  at  the  hands  of  justice. 
Supreme  Lodtre  K.  of  P.  v.  Crenshaw,  13: 
258,  58  S.  E.  628,  129  Ga.  195. 

701.  The  death  of  a  wife's  paramour, 
killed  bj'  a  wronged  husband  while  attempt- 
ing to  commit,  or  immediately  after  the 
commission  of,  an  act  of  adultery,  is  not 
caused  in  the  violation  of,  or  an  attempt 
to  violate,  any  criminal  law,  within  the 
meaning  of  a  stipulation  in  a  policy  of  life 
insurance  exempting  the  insurer  in  that 
event  from  full  liability  under  the  policy. 
Supremo  Lodcre  K.  of  P.  v.  Crenshaw,  13: 
258.  58  S.  E.  628,  129  Ga.  195.  (Annotated) 
Execution  for  crime. 

Conflict  of  laws  as  to  right  to  recover,  see 
Conflict  of  Laws,  10. 

702.  Death  by  a  legal  execution  for  crime 
is  not  covered  by  a  policy  of  life  insurance, 
though  the  policy  contains  no  provision 
exceptine  such  manner  of  death  from  the 
risks  covered  by  it.  Northwestern  Mut.  L. 
Ins.  Co.  V.  McCue,  38:  57,  32  Sup.  Ct.  Rep. 
220,  223  U.  S.  234,  56  L.  ed.  419. 

Digest  1-52  L.R.A.(N.S.) 


703.  Provisions  in  the  charter  of  a  foreign 
life  insurance  company  making  a  person 
who  insures  therein  a  member  of  the  cimi- 
pany,  and  fixing  his  interest  at  the  amoriiit 
of  his  insurance,  give  no  right  of  recovery 
for  death  by  legal  execution  for  crime, 
where,  under  the  laws  of  the  place  of  con- 
tract, the  policy,  by  which  alone  the  rights 
of  the  insured  and  the  beneficiaries  must  be 
measured,  does  not  cover  a  death  so  caused. 
Northwestern  Mut.  L.  Ins.  Co.  v.  Mct'iie, 
38:  57,  32  Sup.  Ct.  Rep.  220,  223  U.  S.  234, 
56  L.  ed.  419. 

704.  The  personal  representative  of  an  in 
sured  is  not  precluded  from  enforcini^  pay 
ment  of  his  policy  by  the  fact  that  insured 
was  executed  for  crime,  where  the  Consti- 
tution declares  that  no  conviction  shall  work 
a  corruption  of  blood  or  forfeiture  of  estate, 
and  the  statutes  make  no  exception  in  such 
case  in  the  rules  of  descent  and  distribu- 
tion. Collins  v.  Metropolitan  L.  Ins.  Co. 
14:  356,  83  N.  E.  542,  232  111.  37. 

(Annotated) 

b.  RisTc  of  occupation  or  employment. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Waiver  as  to,  see  supra,  586. 

c.  Suicide. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Provisions  of  constitution  or  by-laws  as  to, 
see  supra,  107-111. 

Estoppel  as  to,  see  supra,  563. 

Waiver  of  defense  of,  see  supra,  619. 

Who  may  question  validity  of  statute  de- 
priving company  of  defense  of  suicide 
as  against  citizen  of  state,  see  Action 
OK  Suit,  47. 

Review  of  finding  by  jury  that  death  of 
insured  was  accidental,  see  Appeal  A^u) 
Ekuor,  908.  f 

Forbidding  contract  for  exemption  from  lia- 
bility in  case  of,  see  Constitutional 
Law,  464. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  157-165. 

Admissibility  of  evidence  on  question  of, 
see  Evidence,  1810. 

705.  Suicide  Avill  not  defeat  a  recovery 
upon  a  mutual  benefit  certificate  not  pro- 
cured by  the  insured  with  the  intention  of 
committing  suicide,  unless  the  contract  so 
provided  in  express  terms.  Lange  v.  Royal 
Highlanders,  10:  666,  106  N.  W.  224,  110  N. 
W.  niO,  75  Neb.  188. 

706.  Suicide  of  a  member  of  a  mutual 
benefit  society  will  not  defeat  a  recovery  on 
his  benefit  certificate,  issued  in  favor  of  his 
wife,  in  the  absence  of  express  provision  in 
the  contract  to  that  effect,  although  the  bene- 
ficiarv  had  not  a  vested  interest  which 
could  not  be  defeated  by  the  member.  Grand 
Legion  of  111.  S.  K.  of  A.  v.  Beaty,  8:  1124, 
79  N.  E.  565,  224  111.  346.  (Annotated) 


INSURANCE,  VI.  b,  C. 


1595 


707.  A  beneficiary  in  a  mutual  benefit  cer- 
tificate, who,  under  the  terms  of  the  con- 
tract, can  be  changed  at  any  time  by  the 
insured,  cannot  recover  on  the  certificate 
in  case  the  insured  takes  his  own  life  while 
sane,  although  there  is  no  provision  in  the 
certificate  against  suicide.  Davis  v.  Su- 
preme Council,  R.  A.  lo:  722,  81  N;  E.  294, 
195  Mass.  402. 

70s.  Ihe  defense  of  suicide,  contrary  to  a 
by-law  enacted  after  the  issuance  of  a  mu- 
tual benefit  certificate  which  bound  the 
member  to  comply  with  subsequently  en- 
acted rules  and  regulations,  is  not  suffi- 
cient, but  intentional  suicide  while  sane 
should  be  alleged.  Supreme  Conclave,  I. 
O.  H.  V.  Rehan,  46:308,  85  Atl.  1035,  119 
Md.  92. 

709.  The  term  "death  by  suicide,  sane  or 
insane,"  does  not  include  death  by  the  act 
of  the  assured  without  any  mental  purpose 
of  seif-destruction.  Cady  v.  Fidelity  &  C. 
Co.  17:  260,  113  N.  W.  907,  134  Wis.  322. 

(Annotated) 

710.  The  distinction  between  suicide  by  a 
sane  person  and  suicide  by  an  insane  per- 
son, within  the  meaning  of  a  policy  clause, 
'"death  by  suicide,  sane  or  insane,"  lies  in 
the  mental  capability,  in  the  one  case,  and 
the  absence  of  it,  in  the  other,  to  appre- 
ciate the  moral  nature  and  quality  of  the 
purpose.  Cady  v.  Fidelity  &  C.  Co.  17:  260, 
113  N.  VV.  967,  134  Wis.  322. 

711.  If  one  in  a  fit  of  delirium  or  other 
condition  of  irresponsibility,  without  inten- 
tion to  take  his  own  life,  does  some  act  from 
which  his  death  ensues,  such  death  is  by 
accident,  not  by  suicide.  Cady  v.  Fidelity 
&  C.  Co.  17:  260,  113  N.  W.  967,  134  Wis. 
322. 

712.  Under  a  statute  providing  that  sui- 
cide shall  be  no  defense  to  an  action  upon 
a  life  insurance  policy  if  the  policy  had 
been  in  force  for  one  year  at  the  time  of 
the  death,  if  insured  commits  suicide  while 
sane,  after  the  expiration  of  one  year  from 
the  date  of  the  policy,  the  company  is  liable 
for  t!ie  amount  of  the  policy,  even  though 
it  appears  that  the  act  of  the  suicide  was 
premeditated  before  the  expiration  of  one 
year  from  the  date  of  the  policy.  Harring- 
ton V.  Mutual  L.  Ins.  Co.  34:  373,  131  N.  W. 
240,  21  N.  D.  447. 

713.  Under  a  statute  providing  that  sui- 
cide shall  be  no  defense  to  an  action  upon  a 
life  insurance  policy  if  the  policy  had  been 
in  force  for  one  year  at  the  time  of  the 
death,  the  company  cannot  rely  on  such  de- 
fense if,  at  the  time  of  the  death,  a  year 
had  expired  from  the  date  of  the  policy,  al- 
tliough  it  had  been  dated  back,  if  by  stat- 
ute the  company  is  prevented  from  disput- 
ing the  date  written  in  the  policy.  Har- 
rington v.  Mutual  L.  Ins.  Co.  34:  373,  131 
N.  W.  246,  21  N.  D.  447. 

714.  A  mutual  benefit  certificate  is  a  life 
insurance  policy  within  the  meaning  of  a 
statute  withdrawing  from  life  insurance 
companies  the  defense  of  suicide  of  policy 
holders  in  suits  upon  such  policies.  Head 
Camp  Pacific  Jurisdiction  v.  Sloss,  31:  831, 
112   Pac.  49,  49  Colo.  177. 

Digest  1-52  L.R.A.(N.S.) 


3.  Under  accident  or  health  policies. 

a.  Accidental  injuries  generally. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Review  on  appeal  of  findings  as  to  cause  of 
death,  see  Appeal  and  Error,  911. 

Public  policy  as  to  requiring  establishment 
of  accidental  nature  of  injury  before 
liability  attaches,  see  Contracts,  442. 

Burden  of  proving  cause  of  death,  see  Evi- 
dence, 114. 

Evidence  of  habits  and  temperament  of  in- 
sured in  action  on  accident  policy,  see 
Evidence,  1518. 

Sufficiency  of  evidence  as  to,  see  Evidence, 
2077-2080,  2333. 

Question  for  jury  as  to  cause  of  injury,  see 
Trial,  166-169,  172,  176. 

Direction  by  court  that  one  insured  against 
accident  was  intoxicated  at  time  of 
injury,  see  Trial,  772. 

715.  The  word  "operation,"  in  a  clause  of 
an  accident  insurance  policy  making  insurer 
liable  for  injuries  from  septic  wounds 
caused  by  accident  while  performing  an  op- 
eration pertaining  to  the  business  of  the 
insured,  a  physician,  means  treatment  per- 
taining to  his  business,  and  is  not  limited 
to  surgical  operations.  Central  Acci.  Ins. 
Co.  V.  Rembe,  5:  933,  77  N.  E.  123,  220  111. 
151. 

716.  The  infection  of  an  eye  with  gono- 
cocci  by  splashing  water  from  a  tub  while 
washing  clothes  therein,  to  its  destruction, 
is  within  the  operation  of  a  policy  provid- 
ing indemnity  in  case  of  the  permanent  loss 
of  the  sight  of  an  eye  by  accident.  Sulli- 
van v.  Modern  Brotherhood,  42:  140,  133 
N.  W.  486,  167  Mich.  524.  (Annotated) 

717.  The  word  "building"  in  a  provision 
of  an  accident  insurance  policy  imposing  a 
liability  for  injuries  sustained  in  conse- 
quence of  the  burning  of  a  building  in  which 
insured  shall  be  at  the  commencement  of 
the  fire,  includes  the  contents  of  the  build- 
ing, so  that  recovery  may  be  had  for  inju- 
ries caused  by  the  burning  of  such  contents, 
although  the  building  itself  is  not  on  fire. 
Wilkinson  v.  ^tna  L.  Ins.  Co.  25:  1256,  88 
N.  E.  550,  240  111.  205. 

718.  Insurance  against  injuries  by  the 
burning  of  a  building  while  insured  is  there- 
in does  not  cover  injuries  caused  by  the 
burning  of  clothing  and  other  articles  in  a 
room  of  the  building,  which  merely  scorches 
the  wood  work  without  destroying  the  build- 
ing or  any  portion  of  it.  Houlihan  v.  Pre- 
ferred Acci.  Ins.  Co.  25:  1261,  89  N.  E.  927, 
196  N.  Y.  337. 

719.  A  platform  at  a  railway  depot,  used 
by  the  public  for  the  purpose  of  going  to 
and  from  trains,  and  which  is  used  by  the 
public  without  objection  for  the  purpose 
of  traveling  from  one  street  to  another,  and 
to  other  parts  of  the  depot  grounds,  is  a 
"public  highway,"  within  the  meaning  of 
an  accident  insurance  policy  which  con- 
tained the  provision:      "While  walking  on 


1596 


INSURANCE,  VI.  b,  3. 


a  public  highway,  by  being  injured  by 
actual  contact  with  a  bicycle  or  any  moving 
conveyance  or  vehicle  propelled  by  steam, 
electricity,  cable,  horse  power,  gasolene,  or 
compressed  air."  Rudd  v.  Great  Eastern 
Casualty  &  Indemnity  Co.  34:  1205,  131  N. 
W.   633,    114  Minn.   512. 

720.  The  space  between  the  tracks  of  a 
double-track  railroad,  which  are  so  close  to- 
gether that  the  distance  between  trains 
passing  thereon  would  be  only  4  feet,  is  road- 
bed within  the  meaning  of  that  term  in  an 
accident  insurance  policy  restricting  the  lia- 
bility  of   the   insurer   in   case   of   accidents 

'  while  assured  is  on  the  roadbed  of  a  rail- 
road. McClure  v.  Great  Western  Acci.  Asso. 
8:  970,  110  N.  W.  466,  133  Iowa,  224. 

(Annotated) 

721.  A  provision  in  an  accident  insurance 
policy  that  it  does  not  cover  being  on  any 
railroad  right  of  way  means  on  the  track. 
Starr  v.  Jiltna  L.  Ins.  Co.  4:  636,  83  Pac.  113, 
41   Wash.   19i). 

722.  A  caboose  attached  to  a  through 
freight  used  exclusively  for  the  transpor- 
tation of  live  stock  to  market  cannot  while 
en  route  be  said  to  be  used  for  passenger 
service,  where  no  one  but  the  train  employ- 
ees and  the  shippers  in  charge  under  live 
stock  contracts,  together  with  railroad 
employees,  are  permitted  to  be  aboard,  so 
as  to  relieve  an  insurance  company  of  lia- 
bility under  a  clause  in  a  policy  held  by 
a  drover  in  such  caboose,  exempting  the 
insurance  company  from  liability  in  case 
of  accident  while  on  a  "caboose  used  for 
passenger  service."  Standard  Acci.  Ins.  Co. 
v.  Hite,  46:  986,  132  Pac.  333,  37  Okla.  305. 

723.  A  provision  of  an  accident  insurance 
policy  relieving  the  insurer  from  liability 
for  injuries  caused  by  discharge  of  firearms, 
unless  the  accidental  character  of  the  dis- 
charge shall  be  established  by  at  least  one 
person  other  than  the  insured,  who  was  an 
eyewitness  of  the  event,  requires  the  witness 
to  have  seen  the  shooting.  Roeh  v.  Busi- 
ness Men's  Protective  Asso.  51:  221,  145 
N.  W.  479,  164  Iowa,  199.  (Annotated) 

724.  An  accident  insurance  company  can- 
not defeat  liability  for  death  by  drowning, 
on  the  ground  that  decedent  entered  a  swim- 
ming pool  where  the  death  occurred,  volun- 
tarily, and  therefore  the  accident  was  not 
the  cause  of  the  death  independently  of  all 
other  causes,  within  the  provisions  of  the 
policy.  Clark  v.  Iowa  State  Traveling 
Men's  Asso.  42:  631,  135  N.  W.  1114,  156 
Iowa,  201.  (Annotated) 
Disease  or  bodily  infirmity  as  concur- 
ring cause. 

725.  The  excitation  by  an  accident  of  a 
dormant  growth  or  formation  \vithin  the 
body  so  that  it  rapidly  results  in  death, 
which,  but  for  the  accident,  would  have 
been  deferred  until  a  later  period  of  life, 
is  within  the  operation  of  a  policy  insuring 
against  bodily  injury  sustained  through  ac- 
cidental means  resulting  directly,  independ- 
ently, and  exclusively  of  all  other  causes 
in  death.  Fidelity  &  C.  Co.  v.  Meyer,  44: 
493,  152  S.  W.  995,  106  Ark.  91. 

Digest   1-52  I..R.A.(N.S.) 


726.  A  shock  and  fainting  spell  produced 
by  entering  into  a  swiinniing  pool,  wliich 
results  in  drowning,  do  not  relieve  an  acci- 
dent insurance  company  from  liability  on 
its  policy  for  the  death,  on  the  theory  that 
the  death  resulted  partially  or  indirectly 
from  "disease  or  bodily  infirmity"  within 
the  meaning  of  an  exemption  clause  in 
the  policy.  Clark  v.  Iowa  State  Traveling 
Men's  Asso.  42:  631,  135  N.  W.  1114,  156 
Iowa,  201. 

727.  The  fact  that  a  person  fifty  or 
fifty-five  years  of  age  would  be  likely  to 
have  a  normal  hardening  of  the  arteries 
in  parts  of  the  body,  which  might  tend  to 
bring  about  a  rupture  of  the  heart  in  case 
of  a  violent  accident  through  a  fall,  is  not 
sulTicient  to  show  that  the  accident  was  not 
the  proximate  cause  of  the  death  of  the 
person,  within  the  provisions  of  an  accident 
insurance  policy  held  by  him.  Moon  v. 
Order  of  United  Commercial  Travelers,  52: 
1203,  146  N.  W.  1037,  96  Neb.  65. 

( Annotated ) 

728.  Semble,  that  an  insurer  would  be 
protected  from  liability  for  death  of  the 
insured,  in  consequence  of  physical  exertion, 
from  dilatation  of  the  heart,  which  had  been 
in  a  weak  and  unhealthy  condition,  by  a 
condition  providing  that  the  policy  should 
not  extend  to  cover  death  "arising  from  any 
natural  disease  or  weakness  or  exhaustion 
consequent  upon  any  disease  ...  al- 
though accelerated  by  accident."  Re  Scan, 
2  B.  R.  C,  358,  [1905]  1  K.  B.  387.  Also 
Reported  in  74  L.  J.  K.  B.  N.  S.  237,  92 
L.  T,  N.  S.  128,  21  Times  L.  R.  173. 
Sunstroke. 

As  external,  violent  and  accidental  cause, 
see  infra,  750. 

729.  The  word  "sunstroke,"  when  used  in 
an  insurance  policy  in  describing  one  of  the 
risks  covered,  should  not  be  interpreted  as 
applying  only  to  an  effect  produced  by  the 
heat  of  the  sun,  unless  the  context  or  other 
special  considerations  require  it,  since  the 
term,  unexplained,  denotes  a  condition  pro- 
duced by  any  heat,  solar  or  artificial.  Con- 
tinental Casualty  Co.  v.  Johnson,  6:  609, 
85  Pac.  545,  74  Kan.  129.  (Annotated) 

730.  The  fact  that  one  overcome  by  heat 
emanating  from  a  furnace  had  previously 
overexerted,  thereby  rendering  himself 
more  subject  to  such  an  attack,  does  not 
affect  the  liability  of  an  accident  insurance 
company  to  him,  under  a  policy  including 
sunstroke  in  the  accidental  injuries  in- 
sured against,  since  in  such  cases  the  mere 
negligence  of  the  insured  is  not  a  defense. 
Continental  Casualty  Co.  v.  Johnson,  6:  609^ 
85  Pac.  545,  74  Kan.  129. 

b.  Intentional  injuries. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Presumption  and  burden  of  proof  as  to  cause 
of  injury,  see  Evidence,  228,  552. 

Cause  of  injury  as  question  for  jury,  see 
Trial,  290. 

731.  An  injury  received  by  making  an  in- 


INSURANCE,  VI.  b,  3. 


1597 


tentional  assault  on  another  by  striking  him 
in  the  face  with  the  fist  is  not  by  accidental 
means,  within  the  meanin^  of  a  policy  insur- 
ing against  injuries  received  through  such 
means.  Fidelity  &  C.  Co.  v.  Carroll,  5:  657, 
143  Fed.  271,  74  C.  C.  A.  409.        (Annotated) 

732.  An  insurance  against  loss  of  business 
time  resulting  from  bodily  injuries  effected 
through  external,  violent,  and  accidental 
means  covers  loss  of  time  by  disease,  if  it 
was  proximately  caused  by  a  bodily  injury 
through  the  stipulated  means.  ^Etna  L. 
Ins.  Co.  v.  Fitzgerald,  i :  422,  75  N.  E.  262, 
165   Ind.   317. 

733.  A  provision  in  the  rules  of  an  acci- 
dent insurance  company  relieving  the  in- 
surer from  liability  for  injury  intentionally 
inflicted  by  any  person  upon  insured  does 
not  apply  to  fatal    injuries   inflicted   in  an 

'attempt  to  rob  liim,  where  the  constitution 
provides  that  any  injury  received  by  a  mem- 
ber in  an  attempt  to  rob  him  shall  be  con- 
sidered an  accident,  although  weekly  in- 
demnity only  is  provided  for  such  accident 
by  the  constitution,  and  the  section  so  pro- 
viding deals  with  disability  only,  and  does 
not  qualify  the  provision  for  death  benefits. 
Allen  v.  Travelers'  Protective  Asso.  48:  600, 
143  N.  W.  574,  163  Iowa,  217. 

c.  External,  violent,  and  accidental 
means. 

(See   also   same   heading   in  Digest  L.R.A. 
1-70.) 

734.  Periostitis  of  the  metacarpal  bones, 
caused  by  placing  the  hand,  during  sleep, 
between  the  head  and  the  edge  of  the  bed 
rail,  and  using  it  as  a  headrest  until  it  be- 
comes numb  and  bruised,  is  covered  bj'  an 
insurance  against  injuries  effected  through 
external,  violent,  and  accidental  means. 
aEtna  L.  Ins.  Co.  v.  Fitzgerald,  i:  422,  75 
N.  E.  262,  165  Ind.  317.  (Annotated) 

735.  Death  from  suicide  which  springs 
from  an  insane  impulse  of  a  disordered  or 
insane  mind  is  through  external,  violent, 
and  accidental  means,  within  the  meaning 
of  an  accident  insurance  policy.  Tuttle  v. 
Iowa  State  Traveling  Men's  Asso.  7:  223,  104 
N.  W.  1131,  132  Iowa,  652.  (Annotated) 

736.  A  felon  caused  by  an  accidental 
bruise  upon  the  finger  of  the  holder  of  an 
accident  insurance  policy  is  within  the 
clause  of  the  policy  providing  compensation 
for  accidental  injury  resulting  from  some 
violent,  external,  and  involuntary  cause, 
leaving  external  and  visible  marks  of  a 
wound.  Robinson  v.  Masonic  Protective 
Asso.  47:  924,  88  Atl.  531,  87  Vt.  138. 

(Annotated) 

737.  Under  a  policy  insuring  against  loss 
of  time  from  bodily  injuries  effected  through 
external,  violent,  and  accidental  means, 
which  shall  disable  the  insured  from  en- 
gaging in  any  productive  occupation,  no  re- 
covery can  be  had  for  hernia  resulting  from 
accident  where  there  is  no  external  injury, 
disability,  or  loss  of  time,  ^tna  L.  Ins.  Co. 
V.  Lasseter,  15:  252,  45  So.  166,  153  Ala.  630. 

738.  Merely  hastening  through  an  acci- 
dental fall  the  destruction  of  sight,  which 
Digest  1-52  L.R.A.(N.S.) 


was  inevitable,  through  cataract,  is  not, 
where  both  causes  contribute  to  the  result, 
within  the  operation  of  a  policj'  insuring 
against  bodily  injuries  effected  directly  and 
independently  of  all  other  causes  through 
external,  violent,  and  accidental  means. 
Penn  v.  Standard  L.  &  Acci.  Ins.  Co.  42:  593, 
73  S.  E.  99,  76  S.  E.  262,  158  N.  C.  29. 

739.  Appendicitis  due  to  the  irregular 
working  of  the  muscles  of  the  side  because 
of  their  strain  in  bowling  is  not  within  a 
policy  providing  indemnity  for  loss  of  time 
resulting  from  disability  due  to  external, 
violent,  and  accidental  means.  Lehman  v. 
Great  Western  Acci.  Asso.  42:  562,  133  N. 
W.  752,  155  Iowa,  737.  (Annotated) 

740.  Death  from  appendicitis  following  a 
strain  which  would  not  have  caused  such 
disease  but  for  an  abnormal  condition  of 
the  appendix,  due  to  a  former  attack,  is  not 
within  a  policy  insuring  against  death  from 
injury  effected  directly  and  independently 
of  all  other  causes  through  external,  violent, 
and  accidental  means.  Stanton  v.  Travel- 
ers' Ins.  Co.  34:  445,  78  Atl.  317,  83  Conn. 
708.  (Annotated) 

741.  Rupture  of  the  heart,  which  is  in  a 
state  of  fatty  degeneration,  by  assisting  in 
carrying  a  door  weighing  86  pounds,  or  by 
filling  the  lungs  with  air  by  drawing  a  long 
breath  after  putting  it  down,  causing  death, 
is  not  within  the  provisions  of  a  policy  in- 
suring against  death  from  bodily  injuries 
sustained  through  external,  violent,  and  ac- 
cidental means.  Shanberg  v.  Fidelity  &  C. 
Co.  19:  1206,  158  Fed.  1,  85  C.  C.  A.  343. 

(Annotated) 

742.  The  death  of  one  insured  in  a  fra- 
ternal accident  association,  proximately  re- 
sulting from  a  rupture  of  the  heart  caused 
by  his  accidentally  slipping  and  falling 
and  striking  his  body  externally  near  the 
region  of  the  heart  upon  a  large  stone  with 
such  force  as  to  cause  the  rupture,  from 
which  he  immediately  died,  is  a  death 
caused  by  external  bodily  injury  within  the 
meaning  of  the  indemnity  clause  in  the 
policy.  Moon  v.  Order  of  United  Com- 
mercial Travelers,  52:  1203,  146  N.  W.  1037, 
96  Neb.  65. 

743.  Dilatation  of  the  heart,  the  weak 
and  unhealthy  condition  of  which  was  un- 
known to  the  assured,  in  consequence  of 
intentional  physical  exertion  incident  to  an 
attempt  to  eject  a  drunken  man,  who  offered 
only  passive  resistance,  although  an'  unfore- 
seen effect,  is  not  caused  by  accidental 
means  within  the  meaning  of  a.  policy  of 
insurance  against  "any  bodily  injury  caused 
by  violent,  accidental,  external,  and  visible 
means."  Re  Searr,  2  B.  R.  C.  358,  [1905] 
1  K.  B.  387.  Also  Reported  in  74  L.  J.  K. 
B.  N.  S.  237,  92  L.  T.  N.  S.  128,  21  Times 
L.  R.  173.  (Annotated) 

744.  The  administration  of  an  anti-teta- 
nus serum  by  a  reputable  member  of  the 
medical  profession  in  case  of  an  injury  cov- 
ered by  a  policy  insuring  against  death 
caused  by  "external,  violent,  and  accidental 
means,"  where  such  treatment  is  regular,  or- 
dinary, and  in  accordance  with  the  teachings 
of  his  profession,  is  one  of  the  possibilities 


1598 


INSURANCE,  VI.  b,  3. 


within  the  contemplation  of  the  parties  to 
the  policy,  and  where  the  death  results  sole- 
ly from  .such  injury  and  the  injection  of  the 
serum  recovery  can  be  had.  Gardner  v. 
United  Surety  Co.  26:  1004,  125  N.  W.  264, 
110  Minn.  291.  (Annotated) 

745.  That  a  person  la  delirious  from 
fever  when  he  falls  from  a  window  to  his 
death  does  not  prevent  the  death  from  be- 
ing effected  directly  and  independently  of 
all  other  causes,  through  external,  violent, 
and  accidental  means,  within  the  meaning 
of  a  policy  insuring  against  death  so 
caused.  Bohaker  v.  Travelers'  Ins.  Co.  46: 
543,   102  N.  E.  342,  215  Mass.  32. 

(Annotated) 
Blood  poisoning. 

As  to  blood  poisoning  generally,  see  infra, 
755-763. 

746.  Death  from  blood  poisoning  due  to 
perforation  of  the  rectum  by  a  bone,  pre- 
sumably swallowed  with  food,  is  caused  by 
external,  violent,  and  accidental  means, 
within  the  meaning  of  those  terms  in  an 
insurance  policy.  Jenkins  v.  Hawkeye  Com- 
mercial Men's  Asso.  30:  1181,  124  N.  W.  199, 
147  Iowa,  113.  (Annotated) 

747.  Death  from  blood  poisoning  following 
a  slight  accidental  abrasure  of  the  skin  is 
within  an  accident-insurance  policy  against 
bodily  injuries  sustained  through  external, 
violent,  and  accidental  means  independently 
of  all  other  causes.  French  v.  Fidelity  & 
C.  Co.  17:  loii,  115  N.  W.  869,  135  Wis. 
259. 

748.  Death  from  blood  poisoning  follow- 
ing an  accidental  cut  in  the  finger  of  the 
holder  of  an  accident  policy  is  within  the 
terms  of  the  policy  providing  compensation 
in  case  of  death  by  external  violence  and 
accidental  means.  Central  Acci.  Ins.  Co.  v. 
Rembe,   5:  933,   77   N.   E.   123,  220   111.    151. 

749.  Bodily  injury  by  external,  violent, 
and  accidental  means  need  not  be  shown  to 
recover  for  death  from  septicemia  under  an 
accident  insurance  policy  which,  after  in- 
suring against  bodily  injuries  from  such 
means,  allows  a  recovery  for  one  half  the 
amount  of  the  policy  for  loss  of  life  only, 
resulting  wholly  or  in  part  from  sunstroke, 
freezing,  septicemia,  hydrophobia,  or  the 
involuntary  or  unconscious  inhalation  of 
gas  or  other  poisonous  vapor.  Schumacher 
v.  Great  Eastern  Casualty  &  I.  Co.  27:  480, 
90  N.  E.  353,  197  N.  Y.  58.  (Annotated) 
Sunstroke. 

See  also  supra,  729-731. 

750.  In  an  action  upon  an  accident  insur- 
ance policy  containing  a  provision  that  loss 
of  time  due  to  sunstroke  should  be  deemed 
to  be  due  to  external,  violent,  and  purely 
accidental  causes,  and  should  entitle  the 
insured/  to  full  benefits  according  to  the 
terms  of  the  policy,  the  plaintiflF  is  not  pre- 
cluded from  recovery  upon  a  loss  which  he 
alleges  is  due  to  sunstroke,  by  the  fact  that 
his  disability  was  occasioned  by  exposure 
to  the  heat  of  a  furnace  in-stead  of  that  of 
the  sun.  Continental  Casualty  Co.  v.  John- 
son, 6:  609,  85  Pac.  545,  74  Kan.  129. 

(Annotated) 
Digest  1-52  KR.A.(N.S.> 


d.  External  or  visible  marie. 

(See   also   same  heading   in  Digest    L.R.A, 
1-10.) 

Question  for  jury  as  to  whether  injury  wag 
an  "invisible  injury,"  see  Trial,  CoO. 

751.  Drowning,  altliough  not  accompanied 
by  external  marks,  is  covered  by  a  policy 
insuring  against  personal  injury  leaving 
upon  the  body  external  marks,  where  drown- 
ing appears  in  the  list  of  accidents  insured 
against,  and  a  separate  provision  limits  the 
liability,  in  case  of  drowning,  to  a  certain 
percentage  of  the  face  of  the  policy  in  the 
absence  of  an  eyewitness.  Lewis  v.  Brother- 
hood Acci.  Co.  17:  714,  79  N.  E.  802,  194 
Mass.    1. 

752.  Recovery  cannot  be  had  for  mentat 
derangement  on  an  accident  policy  in  an 
association,  a  by-law  of  which  precludes 
recovery  for  an  invisible  injury  unless  cer- 
tified to  in  a  certain  way,  upon  a  mere 
showing  that  the  injury  resulted  from  ex- 
ternal force,  in  the  absence  of  a  compli- 
ance with  the  conditions  of  the  by-law. 
Peterson  v.  Locomotive  Engineers'  Mut.  L. 
&  Acci.  Ins.  Asso.  49:  1022,  144  N.  W.  160, 
123  Minn.  505. 

753.  Mental  derangement  of  a  locomotive 
engineer  resulting  from  an  accident  to  his 
engine,  and  unfitting  him  for  duty,  is  not 
an  "invisible  injury"  within  the  meaning 
of  an  accident  policy  precluding  recovery 
for  "an  invisible  injury  unless  certified  to 
by  a  medical  expert  designated  by  the  as- 
sociation," if  the  condition  can  be  ascer- 
tained by  observation  or  examination.  Pet- 
erson V.  Locomotive  Engineers'  Mut.  L.  & 
Acci.  Ins.  Asso.  49:  1022,  144  N.  W.  160, 
123  Minn.  505.  (Annotated) 

e.     Things     tahen,     administered,     ab- 
sorbed, or  inhaled. 

(See   also   same   heading  in   Digest   L.R.A. 
1-10.) 

754.  Death  by  asphyxiation  from  the  acci- 
dental inhalation  of  gas  while  asleep  is  not 
within  the  provisions  of  an  accident  insur- 
ance policy  exempting  the  insurer  from  lia- 
bilitj'  for  death  resulting  directly  or  indi- 
rectly from  any  gas  or  vapor.  Travelers' 
Ins.  Co.  V.  Ayers,  2:  168,  75  N.  E.  506,  217 
111.  390.  (Annotated) 

ee.  Blood  poisoning. 

As   external,   violent,   or   accidental   means, 
see  supra,  746-749. 

755.  No  recovery  can  be  had  under  an 
accident  insurance  policy  covering  bodily 
injuries  effected  solely  through  accidental 
means,  that,  independently  of  all  other 
causes,  result  in  death,  for  death  resulting 
from  gangrene  following  the  breaking  of  a 
bone,  because  of  a  diabetic  condition  of  the 


INSURANCE,  VI.  b,  3. 


1599 


person  injured.  Maryland  Casualty  Co.  v. 
Morrow,  52:  12 13,  213  Fed.  599,  130  C.  C. 
A.  179. 

756.  A  beneficiary  named  in  an  accident 
insurance  policy  issued  to  one  who  there- 
after died  from  blood  poisoning  resulting 
from  an  accidental  cut  or  scratch  on  his 
hand  is  entitled  to  recover  in  an  action  on 
the  policy,  although  it  excepts  cases  in 
which  death  results  wholly  or  partly,  di- 
rectly or  indirectly,  from  bodily  infirmity 
or  disease  in  any  form,  proximate  or  con- 
tributory, as  a  primary,  secondary,  or  final 
cause  of  accident,  injury,  or  death.  Rhein- 
heimer  v.  iEtna  L.  Ins.  Co.  15:  245,  83  N.  E. 
491,  77  Ohio  St.  360. 

757.  Septicemia  induced  by  bacterial  in- 
fection of  an  accidental  abrasion  of  the  skin 
is  not  within  the  provision  of  an  insurance 
policy  exoniptins  the  insurer  from  liability 
for  death  resulting  directly  or  indirectly, 
wholly  or  in  part,  from  bodily  infirmity  or 
disease.  Cary  v.  Preferred  Acci.  Ins.  Co.  5: 
926,  106  N.  W.  1055,  127  Wis.  67. 

(Annotated) 

758.  A  provision  in  a  health  insurance 
policy  for  indemnity  for  blood  poisoning 
cannot  be  destroyed  by  the  condition  that 
the  policy  shall  not  apply  to  any  disease 
resulting  from  an  'njiu'y  or  another  disease. 
Jones  V.  Pennsylvania  Casualty  Co.  5:  932, 
52  S.  E.  578,  140  N.  C.  262. 

759.  A  clause  in  an  accident  insurance 
policy  exempting  the  insurer  from  liability 
for  death  resulting  from  contact  with  poi- 
sonous substances  does  not  apply  in  case  of 
death  from  blood  poisoning  caused  by  germs 
infecting  an  accidental  wound.  ^  Central 
Acci.  Ins.  Co.  v.  Rembe,  5:  933,  77  N.  E. 
123,  220  111.   151. 

760.  A  provision  in  an  insurance  policy 
exempting  the  insurer  from  liability  for 
death  resulting  from  poison  or  infec- 
tion does  not  apply  where  an  accidental 
abrasion  of  the  skin  is  followed  by  bacte- 
rial infection,  blood  poisoning,  and  death, 
since  the  infection  is  not  the  proximate 
cause  of  the  death.  Cary  v.  Preferred  Acci. 
Ins.  Co.  5:  926,  106  N.  W.  1055,  127  Wis. 
67.  (Annotated) 

761.  An  abrasion  of  the  skin  by  a  fall 
may  be  found  to  be  the  proximate  cause  of 
the  death  of  the  injured  person  where  bac- 
teria infected  the  wound  causing  blood  poi- 
soning which  resulted  in  death.  Cary  v. 
Preferred  Acci.  Ins.  Co.  5:  926,  106  N.  W. 
1055,  127  Wis.  67. 

762.  An  injury  to  a  physician  by  the 
breaking  of  a  bottle  from  v/hich  he  is  at- 
tempting to  secure  medicine  for  a  patient 
is  within  the  terms  of  a  clause  of  an  acci- 
dent insurance  policy  making  the  insurer 
liable  for  septic  wounds  caused  by  accident 
while  performing  an  operation  pertaining  to 
the  business  of  the  insured.  Central  Acci. 
Ins.  Co.  v.  Rembe,  5:  933,  77  N.  E.  123,  220 
111.   151. 

763.  Blood  poisoning  from  septic  matter 
thrown  by  a  cough  against  the  membrane  of 
the  eye,  without  abrading,  breaking,  or  rup- 
turing the  surface,  is  not  within  the  meaning 
of  a  provision  in  an  accident  insurance  pol- 
Digest  1-52  L.R.A.(N.S.) 


icy,  insuring  against  blood  poisoning  from 
septic  matter  introduced  into  the  system 
through  wounds.  Fidelity  &  C.  Co.  v. 
Thompson,  11:  1069,  154  Fed.  484,  83  C.  C.  A. 
324. 

f.    Increased   hazard;    voluntary 
expostire. 

(1)    In  general;   overexertion. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Sufficiency  of  evidence  to  justify  submission 
to  jury  of  defense  of  voluntary  expos- 
ure to  danger,  see  Trial,  101. 

Refusal  of  instructions  where  defense  of 
voluntary  exposure  to  danger  is  set  up, 
see  Trial,  852. 

764.  Either  reckless  or  deliberate  encoun- 
tering of  known  danger,  or  danger  so  ob- 
vious that  a  reasonably  prudent  man  would 
have  observed  and  avoided  it,  if  the  circum- 
stances were  not  such  as  necessitated  the 
encountering  thereof,  is  a  "voluntary  ex- 
posure" within  the  meaning  of  a  clause  in 
an  accident  insurance  policy  limiting  the 
liability  of  the  insurer  in  case  of  an  injurj' 
resulting  from  "voluntary  exposure  to  un- 
necessary danger  or  obvious  risk  of 
injury."  Diddle  v.  Continental  Casualty 
Co.  22:  7>-9,  63  S.  E.  962,  65  W.  Va.  170. 

765.  Unconsciousness  of  the  danger  at  the 
moment  of  injury  does  not  excuse  the 
insured,  within  the  meaning  of  a  clause 
in  an  accident  insurance  policy  lim- 
iting the  liability  of  the  insurer  in  case 
of  an  injury  resulting  from  voluntary  ex- 
posure to  unnecessary  danger  or  obvious 
risk  of  injury,  except  in  those  instances  in 
which  the  insured  was  ignorant  of  the  dan- 
ger, and  under  no  duty  from  the  obvious- 
ness thereof,  to  know  its  existence.  Diddle 
V.  Continental  Casualty  Co.  22:  779,  03  S. 
E.  962,  65  W.  Va.  170. 

766.  If  the  danger  is  obvious,  and  there 
is  nothing  in  the  situation  of  the  insured  or 
the  circumstances  surrounding  him  that,  in 
any  way,  precludes  deliberation,  freedom  of 
action,  or  choice  of  conduct,  such  as  a  sud- 
den peril,  which  he  had  no  reason  to  expect, 
or  the  like,  and  he  encounters  it,  and  is  in- 
jured, the  exposure  is  "voluntary"  within 
the  meaning  of  a  clause  in  an  accident  in- 
surance policy  limiting  the  liability  of  the 
insurer  in  case  of  an  injury  resulting  from 
voluntary  exposure  to  unnecessary  danger 
or  obvious  risk  of  injury.  Diddle  v.  Con- 
tinental Casualty  Co.  22:  779,  63  S.  E.  902, 
65  W.  Va.   170.  (Annotated) 

767.  Voluntary  exposure  to  obvious  risk 
within  the  meaning  of  an  insurance  policy 
is  made,  as  a  matter  of  law,  by  climbing  on 
the  side  of  an  engine  which  is  approaching 
a  standpipe  erected  in  close  proximity  to 
the  track  at  a  speed  of  8  or  10  miles  an 
hour, .  where  the  insured  had  passed  the 
standpipe  frequently,  and  had  done  so  just 
before  the  accident.  Diddle  v.  Continental 
Casualty  Co.  22:  779,  63  S.  E.  962,  65  W. 
Va.  170. 


1600 


INSURANCE,  VI.  b,  3. 


768.  An  obvious  danger  within  the  mean- 
ing of  an  accident  policy  is  one  that  is 
plain  and  apparent  to  a  reasonably  observ- 
ant person;  and  the  fact  that  the  insured 
may  not  have  observed  it  and  been  con- 
scious of  it  at  the  time  of  the  accident  is 
not  material,  since  he  owed  to  the  insurer 
as  well  as  to  himself  the  duty  to  be  reason- 
ably careful  when  in  the  presence  of  an 
obvious  danger,  and  his  failure  to  use  rea- 
sonable care  does  not  excuse  him.  Combs  v. 
Colonial  Casualty  Co.  50:  1218,  80  S.  E.  779, 
73  W.  Va.  473. 

769.  A  person  who  attempts  to  cross  a 
railroad  track  immediately  in  front  of  a 
rapidly  approaching  train,  and  is  run  over 
and  killed,  exposes  himself  to  an  "obvious 
risk  of  injury  or  obvious  danger,"  within 
tlie  meaning  of  a  condition  in  an  accident 
insurance  policy,  limiting  the  liability  of 
the  insurer.  Combs  v.  Colonial  Casualty 
Co.  50:  1218,  80  S.  E.  779,  73  W.  Va.  473. 

(Annotated) 

770.  One  running  to  a  base  while  playing 
indoor  baseball  does  not  voluntarily  expose 
himself  to  unnecessary  danger,  within  the 
meaning  of  an  accident-insurance  policy,  by 
merely  overrunning  his  base  and  relying  on 
the  wall  of  the  building  to  stop  him  when 
he  places  his  hands  and  feet  against  it. 
Hunt  V.  United  States  Acci.  Asso.  7:  938, 
109  N.  W.  1042,  146  Mich.  521. 

771.  One  who,  while  on  a  pleasure  trip 
in  a  canoe,  continues  on  his  journey  on  a 
lake  in  a  high  wind  when  persons  familiar 
with  the  location  warn  him  of  the  danger, 
and  no  other  canoes  are  out,  voluntarily  ex- 
poses himself  to  unnecessary  danger,  and 
is  negligent,  so  that  in  case  he  is  drowned 
by  the  overturning  of  the  canoe,  no  recov- 
ery can  be  had  on  an  accident  insurance 
policy  which  exempts  the  insurer  from  lia- 
bility in  case  of  death  from  such  exposure. 
Morse  v.  Commercial  Travelers'  Eastern 
Acci.  Asso.  40:  135,  98  N.  E.  599.  212  Mass. 
140.  (Annotated) 

(2)   Risks    of    occupation    or    employ- 
ment. 

(See-  also   same  heading  in  Digest   L.R.A. 

1-70.) 

772.  A  miner  does  not  expose  himself  to 
unnecessary  danger,  as  matter  of  law,  with- 
in the  meaning  of  a  clause  in  the  insurance 
policy  on  his  life,  so  as  to  prevent  recovery 
thereon,  if,  when  called  to  the  assistance  of 
a  coemployee  who  has  been  overcome  with 
gas,  he  finds  him  within  5  feet  of  the  shaft, 
and,  although  he  knows  of  the  presence  of 
the  gas,  calculates  that  lie  can  safely  go 
that  distance  and  effect  the  rescue,  in  at- 
tempting which  he  is  himself  overcome  and 
killed.  Da  Rin  v.  Casualty  Co.  27:  1164, 
108  Pac.  649,  41  Mont.  175.         (Annotated) 

(3)    Intoxication. 

(See  same  heading  in  Digest  L.R.A.  1—10.) 
(4)  RisTcs  of  travel. 

(See   also   same   heading   in  Digest   L.R.A. 

1-70.) 
Digest  1-52  Ii.R.A.(N.S.) 


Entering    or    leaving    pnblic    convey- 
ance. 

773.  That  commercial  travelers  were  ac- 
customed to  run  hazardous  risks  in  board- 
ing trains  at  the  time  an  accident  insurance 
company  accepted  one  as  a  member  does  not 
warrant  the  inference  that  it  agreed  to  in- 
demnify him  for  injury  resulting  from 
such  conduct,  contrary  to  tlie  terms  of  the 
contract.  Garcelon  v.  Commercial  Travel- 
ers' Eastern  Acci.  Asso.  10:  961,  81  N.  E. 
201,  195  Mass.  531. 

774.  For  a  man  sixty-six  years  old,  weigh- 
ing 184  pounds  and  carrying  an  umbrella 
under  his  arm,  to  attempt  to  board  a  train 
running  6  or  8  miles  an  hour,  is  so  obvi- 
ously dangerous  as  to  come  within  the 
clause  of  an  accident-insurance  policy  which 
states  that  the  policy  does  not  cover  in- 
surance from  voluntary  exposure  to  un- 
necessary danger.  Rebman  v.  General  Acci. 
Ins.  Co.  lo:  957,  66  Atl.  859,  217  Pr.  518. 

(Annotated) 

775.  A  passenger  on  a  freight  train,  who, 
having  left  the  car  at  a  stopping  place,  at- 
tempts to  board  it  after  it  has  started,  by 
means  of  a  ladder  on  the  side  of  a  freiglit 
car,  and  is  thrown  therefrom  by  the  jerking 
of  the  train,  and  injured,  contributes  to  his 
injury  by  his  own  negligence,  within  the 
meaning  of  an  accident-insurance  policy  ex- 
empting the  insurer  from  liability  for  such 
injuries.  Garcelon  v.  Commercial  Travel- 
ers' Eastern  Acci.  Asso.  10:  961,  81  N.  E. 
201,  195  Mass.  531. 

776.  A  recovery  on  an  accident  insurance 
policy  by  one  thrown  by  a  sudden  move- 
ment, just  as  he  was  stepping  to  the  ground, 
of  a  train  which  he  was  attempting  to  cross 
while  it  was  standing  on  a  street  crossing, 
is  not  prevented  by  a  provision  in  .he 
policy  that  it  shall  not  apply  to  accidents 
to  persons  attempting  to  leave  moving 
trains,  or  persons  in  or  on  any  place  on  a 
train  not  provided  for  the  use  of  passengers 
during  transit.  Kirkpatrick  v.  .^tna  L. 
Ins.  Co.  22:  1255,  117  N.  W.  nil,  141  Iowa, 
74.  (Annotated) 

(5)    Violating  law. 

(See   also   sar^e  heading   in  Digest   L.R.A. 
1-70.) 

777.  To  relieve  a  life  insurance  company 
from  liability  for  the  death  of  an  insured 
who  came  to  his  death  while  violating  the 
statute  prohibiting  the  carrying  of  concealed 
weapons,  it  must  be  shown  that  the  offense 
was  being  committed,  and  that  it  brought 
about  the  death  of  the  deceased.  Interstate 
L.  Assur.  Co.  v.  Dalton,  23:  722,  165  Fed. 
176,  91  C.  C.  A.  210. 

(6)   Fighting. 

(See  same  heading  i/n  Digest  L.R.A.  1-70.) 

g.  Suicide. 

(See  also   same  heading  in  Digest  L.R.A. 
1-70.) 

Under  life  insurance  policy,  see  supra,  VI. 
b,  2,  c.  . 


INSURANCE,  VI.  c,  1. 


160  L 


As  external,  violent  and  accidental  means, 
see   supra,    735. 

Who  may  question  validity  of  statute  de- 
priving company  of  defense  of  suicide, 
see  Action  or  Suit,  47. 

Forbidding  company  to  contract  for  exemp- 
tion from  liability  in  case  of  suicide, 
see   Constitutional   Law,   464. 

Evidence  of  habits  and  temperament  of  in- 
sured on  question  of  suicide,  see  Evi- 
dence, 34. 

Presumption  and  burden  of  proof  as  to,  see 
Evidence,  157-105. 

Sufficiency  of  evidence  as  to,  see  Evidence, 
2078. 

Order  of  offering  evidence  as  to  mental 
condition   of   insured,    see   Trial,   34. 

Suicide  as  question  for  jury,  see  Tkiai, 
166-109. 

See  also  Evidence,  1810. 

h.    Insanity. 

(See  also  same  heading  in  Digest  L.R.A 
1-10.) 

Question  for  jury  as  to  whetlier  mental 
derangement  resulted  from  accident, 
see  Trial,  l?^. 

1.  Injury  as  result  of  examination  after 
accident. 

(See  same  heading  in  Digest  L.R.A.  1-10.') 

j.  Insurance  against  loss  from  illness. 

Necessity  of  notice  of  sickness,  see  supra, 
625,   626,   628,   631,   636,   637. 

Release  of  liability,  see  infra,  873a. 

As  to  total  disability  of  one  insured  against 
illness,  see  infra,  810-812. 

Release  of  liability,  see  Contracts,  56. 

778.  Inability  to  name  the  illness  does 
not  prevent  recovery  under  a  policy  insur- 
ing against  loss  of  time  from  sickness, 
which  provides  that  no  disability  shall  con- 
stitute a  claim  on  account  of  any  sickness 
the  nature  of  which  is  unknown,  or  incap- 
able of  direct  and  positive  proof,  if  a  phys- 
ical condition  is  shown,  as  a  result  of  ill- 
ness, which  incapacitates  the  insured  for 
labor.  Jennings  v.  Brotherhood  Acci.  Co. 
i8:  109,  96  Pac.  982,  44  Colo.  68. 

c.  Extent  of  injury  or  loss;  of  recovery. 

1,   Insurance   on  property. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.)  '   >'"■  ■  '^'        •     ■ 

Review  of  finding  as  to  extent  of  loss,  see 

Appeal  and   Error,  940. 
Interest  on  amount  recovered  on  insurance 

policy,    see   Interejst,    10. 
Correctness  of  instruction  as  to  amount  of 
/.      recovery    in    case    of    total    loss,    see 

Trial,  1021. 
Question  for  jury  as  to  sufficiency  of  effort 

to  minimize  loss,  see  Trial,  654. 
Digest  1-52  Ii.R.A.(N,S.) 


779.  Nominal  damages  only  can  be  re- 
covered under  an  insurance  ijolicy,  for  a  sec- 
ond lire,  if  the  first  one  destroyed  the  build- 
ing so  that  it  was  not  able  to  be  occupied. 
Kupfersmith  v.  Delaware  Ins.  Co.  (N.  J, 
Err.  &  App.)  45:  847,  86  Atl.  399,  84  N.  J. 
L.  271.  (Annotated) 

780.  The  owner  of  a  building  supported  by 
a  party  'wall  which  is  injured  by  the  burn- 
ing of  the  adjoining  building  may  recover, 
under  the  insurance  policy  on  his  building, 
diminution  in  ifs  value  because  of  the  in- 
juries to  the  party  wall,  which  may  include 
the  full  value  of  the  wall.  Citizens'  F.  Ins. 
Co.  V.  Lochriage,  20:  226,  116  S.  W.  303,  132 
Ky.  1.  (Annotated) 

781.  Where  an  insurance  policy  covers 
property  described  as  a  frame  building  and 
an  undivided  interest  in  a  brick  wall,  and 
no  separate  valuation  is  placed  upon  the 
building  and  the  wall,  and  subsequently  the 
building  is  destroyed  by  fire  without  injury 
to  the  wall,  and  the  insurance  company  is 

prevented  from  restoring  the  building  by  the 
fire  ordinances  of  the  city  in  which  the  prop- 
erty is  located,  in  which  event  it  is  provided 
in  the  policy  that  the  company  shall  be 
liable  for  the  amount  that  it  will  cost  to 
make  such  repairs,  the  insurance  company 
is  liable  for  the  amount  it  would  thus  cost 
to  restore  the  premises,  or  the  actual  loss 
to  the  insured,  without  deduction  for  the 
value  of  the  wall.  Kinzer  v.  National  Mut. 
Ins.  Asso.  43:  121,  127  Pac.  762,  88  Kan.  93. 

782.  The  amount  to  be  awarded  to  one 
who  has  leased  a  building  for  the  owner's 
life,  under  an  insurance  of  his  interest 
therein,  upon  its  destruction  by  fire,  is  the 
present  worth  of  the  difference  between  the 
rental  value  of  the  property  and  what  he 
has  agreed  to  pay  for  it  for  the  probable 
duration  of  the  owner's  life.  Getchell  v. 
Mercantile  &  Manufacturers'  Mut.  F.  Ins. 
Co.  42:  135,  83  Atl.  801,  109  Me.  274. 

783.  The  value  of  cotton  destroyed  by 
fire  after  the  stock  exchange  is  opened  on 
a  certain  day  may  be  determined  from  the 
actual  sales  made  during  that  day  on  the 
market.  Liverpool,  L.  &  G.  Ins.  Co.  v.  Mc- 
Fadden,  27:  1095,  170  Fed.  179,  95  C.  C.  A. 
429. 

784.  The  liability  of  an  insurer  to  a 
manufacturer  of  whisky  under  a  clause  in 
the  policy  limiting  liability  to  cost  of  re- 
placement is  not  the  cost  of  raw  material 
and  labor,  where  the  manufacture  occupies 
considerable  time,  and  the  value  of  the 
product  increases  with  age,  but  the  cost  of 
replacing  the  article  lost  with  a  like 
product  in  the  most  inexpensive  way,  by 
purchase  or  otherwise.  Mechanics  Ins.  Co. 
V.  G.  A.  Hoover  Distilling  Co.  31:  873,  182 
Fed.  590,  105  C.  C.  A.  128. 

785.  A  mian  who  insiu-es,  in  his  own  name, 
liis  dwelling  house,  the  title  to  which  is  in 
his  wife,  may  recover  the  face  value  of  the 
policy,  upon  destruction  of  the  property,  in 
case  such  value  does  not  exceed  the  loss. 
Kludt  v.  German  Mut.  F.  Ins.  Co.  45:  1131, 
140  N.  W.  321,  152  Wis.  637. 

Time   TvhcTi  value  is  to  be   estimated. 
780.  The    time   the   property    is    actually 


101 


1602 


INSURANCE,  VI.  c,  1. 


destroyed,  and  not  that  at  which  the  fire 
starts,  governs  in  determining  the  extent 
of  the  insurer's  liability  under  a  policy  fix- 
ing such  liability  at  the  actual  cash  value 
of  the  property  insured  at  the  time  the  loss 
occurs,  although  the  fire  is  a  continuing  one 
and  the  property  is  a  marketable  commodi- 
ty, the  value  of  which  enhances  as  portions 
of  the  visible  supply  are  destroyed.  Liver- 
pool, L.  &  G.  Ins.  Co.  v.  McFadden,  27:  1095, 
170  Fed.  179,  95  C.  C.  A.  429. 

787.  Where  the  product  insured  has 
changed  in  value  between  the  time  of  its 
manufacture  and  tliat  of  its  destruction, 
and  its  manufacture  occupies  considerable 
time,  the  manufacturer  is  not  limited  to 
the  cost  of  making  the  article,  but  may  re 
cover  its  actual  cash  value  at  the  time  of 
the  fire,  whether  a  profit  or  a  loss  results 
to  him  from  the  use  of  that  measure  of 
recovery.  Mechanics  Ins.  Co.  v.  C.  A. 
Hoover  Distilling  Co.  31:  873,  182  Fed.  590. 
105  C.  C.  A.   128. 

Total   loss  generally. 
See  also  supra,  658. 

788.  The  face  of  the  policy  is  the  amount 
to  be  recovered  for  a  total  loss,  under  a 
statute  providing  for  the  fixing  of  the  value 
of  the  property  before  issuance  of  the  pol- 
icy, which,  after  the  expiration  of  sixty 
days,  the  insurer  shall  be  estopped  to  dis- 
pute, except  for  fraud,  where  the  sixty 
days  have  expired  and  fraud  is  disproved. 
MeCarty  v.  Piedmont  Mut.  Ins.  Co.  18:  729, 
62  S.  E.  1,  81  S.  C.  152. 

789.  Property  is  to  be  regarded  as  hav- 
ing been  "wholly  destroyed"  or  a  "total 
loss"  within  the  meaning  of  an  insurance 
contract,  no  matter  how  great  a  portion 
thereof  may  remain  unconsumcd,  if  it  is  so 
injured  that  it  must  be  torn  down,  or  that 
which  remains  cannot  be  utilized  in  recon- 
structing the  building,  without  incurring 
a  greater  expense  than  if  it  were  not  so 
utilized.  Kinzer  v.  National  Mut.  Ins.  Asso. 
43:  121,  127  Pac.  762,  88  Kan.  93. 

790.  When  all  combustible  material  in  an 
insured  railroad  car  is  destroyed  by  fire, 
leaving  only  the  trucks  and  steel  used  in 
its  construction,  and  that  is  so  injured  as 
not  to  be  of  use  in  rebuilding  the  car,  there 
is  a  total  loss,  although  the  trucks  and 
steel  may  be  worth  a  small  per  cent  of  the 
original  value  of  the  car  as  old  iron  or 
scraps.  Springfield  F.  &  M.  Ins.  Co.  v. 
Homewood,  39:  1182,  122  Pac.  196,  32  Okla. 
521.  (Annotated) 
Marine  insurance,  generally. 
Defense  to  action  on  policy,  see  infra,  853, 

854. 

791.  The  "sum  at  risk,"  in  a  marine  in- 
surance policy,  is  the  valuation  placed  upon 
the  property  by  the  policy  itself.  Standard 
Marine  Ins.  Co.  v.  Nome  Beach  Lighterage 
&  Transp.  Co.  i:  1095,  133  Fed.  636,  67  C. 
C.  A.  602. 

792.  To  recover  under  a  marine  policy 
covering  partial  loss  if  it  amounts  to  50 
per  cent  of  the  property  covered,  such  loss 
must  be  shown  to  have  resulted  from  a 
peril  of  the  sea,  and  cannot  be  created  by 
a  forced  sale.  Standard  Marine  Ins.  Co. 
Digest  1-52  I<.R.A.(N.S.) 


v.   Nome   Beach   Lighterage   &   Transp.   Co. 
i:  1095,  i:V3  Fed.  636,  67  C.  C.  A.  602. 

793.  The  cost  of  getting  boats  whicli  are 
part  of  a  vessel's  cargo  from  the  point  where 
she  is  wrecked  to  a  place  of  safety  may  be 
recovered  under  a  marine  insurance  policy 
upon  them,  although  they  are  not  injured 
by  the  disaster,  where  the  policy  requires 
insured  to  labor  to  secure  the  property  in- 
sured, and  binds  the  insurer  to  contribute 
to  the  expense  thereof  in  proportion  as  the 
sum  insured  is  to  the  whole  sum  at  risk, 
while  the  policy  covers  the  whole  value  of 
the  i)roperty.  Standard  Marine  Ins.  Co. 
V.  Nome  Beach  Lighterage  &  Transp.  Co. 
i:  1095,  133  Fed.  630,  07  C.  C.  A.  602. 

794.  An  insurer  of  the  cargo  of  a  vessel, 
whicli  agrees  to  have  it  removed  from  the 
vessel  to  avoid  a  threatened  peril  after  be- 
ing notified  of  the  cost,  cannot  escape  pay- 
ment of  the  cost  by  claiming  that  the  ex- 
penditure was  disproportionate  to  the  inter- 
ests of  the  case.  St.  Paul  F.  &  M.  Ins.  Co. 
V.  Pacific  Cold  Storage  Co.  14:  1161,  157  Fed. 
625,  87  C.  C.  A.  14. 

795.  The  owner  of  a  vessel  carrying  his 
own  cargo  is  not,  after  the  vessel  has  be- 
come stranded  in  a  river,  bound  to  forward 
the  cargo  to  destination  to  save  his  freight, 
so  as  to  relieve  the  insurer  of  the  cargo  from 
liability  for  the  cost  of  moving  it  overland, 
which  is  done  with  its  knowledge  and  ap- 
proval. St.  Paul  F.  &  M.  Ins.  Co.  v.  Pa- 
cific Cold  Storage  Co.  14:  1161,  157  Fed. 
625,  87  C.  C.  A.  14. 

796.  One  adjusting  the  liability  of  an  un- 
derwriter for  expense  of  moving  a  cargo 
overland  to  avoid  a  threatened  peril  may 
properly  consider  the  exi>ense  vouchers,  the 
question  whether  or  not  the  goods  have  been 
exposed  to  a  peril  covered  by  the  sue  and 
labor  clause  of  the  policy,  and  whether  in- 
sured properly  incurred  ex])enses  in  avert- 
ing the  loss,  and,  if  so,  what.  St.  Paul  F. 
&  M.  Ins.  Co.  V.  Pacific  Cold  Storage  Co. 
14:  1 161,  157  Fed.  625,  87  C.  C.  A.  14. 

( Annotated ) 

797.  Insurers  of  the  cargo  of  a  vessel 
against  loss  by  a  collision  with  ice,  under 
a  policy  containing  a  sue  and  labor  clause, 
are  liable  for  the  cost  of  moving  the  cargo 
overland,  when,  the  vessel  having  been  de- 
layed by  low  water  in  asc^'uiling  a  river  to 
its  destination  until  formation  of  ice  com- 
pelled laying  it  up  for  the  winter,  it  was 
moved  with  the  consent  of  the  underwriter 
to  avoid  the  effect  of  the  ice  upon  its  break- 
ing up  in  the  spring,  and  the  goods,  being 
perishable,  could  not  have  been  otherwise 
pieservfd.  St.  Paul  F.  &  M.  Ins.  Co.  v.  Pa- 
cific Cold  Storage  Co.  14:  1161,  157  Fed.  625 
87  C.  C.  A.  14. 

Tof'»l  loss  of  vessel  or  cargo. 

798.  Rightful  consumption  of  property 
covered  by  a  marine  insurance  policy  in 
salvage  claims  constitutes  a  total  loss  for 
which  the  insurer  is  liable.  Standard  Ma- 
rine Ins.  Co.  V.  Nome  Beach  Lighterage  & 
Transp.  Co.  1:  1095,  133  Fed.  636,  67  C.  C. 
A.  602. 

799.  The  owner  of  property  covered  by  a 


£.:n-.x 


iK 


INSURANCE,  VI.  c,  2. 


1603 


marine  insurance  policy  cannot  claim  a  re- 
covery as  for  a  constructive  total  loss,  al- 
though the  property  was  in  a  situation 
where  it  might  have  been  lawfully  aban- 
doned to  tli:;  underwriter,  if  no  attempt  was 
made  to  abandon  it,  but  it  was  sold  as  the 
property  of  the  insured.  Standard  Marine 
Ins.  Co.  V.  Nome  Beach  Lighterage  &  Transp. 
Co.  i:  1095,   133  Fed.  636,  67  C.  C.  A.  602. 

2.    Ins'urance   on   persons. 

(See   also   same   heading   in   Digest   L.Ii.A. 
1-10.) 

See  also  supra,  372. 

800.  A  provision  in  a  life  insurance  pol- 
icy whicli  provides  for  cash  loans  on  it,  au- 
thorizing the  insurer  to  deduct  indebted- 
ness from  the  face  of  the  policy  in  making 
settlement  of  the  amount  due  thereunder, 
does  not  cover  debts  growing  out  of  trans- 
actions extraneous  to  the  contract,  such  as 
indebtedness  incurred  by  the  insured  while 
acting  as  agent  for  the  insurer.  Anson  v. 
New  York  L.  Ins.  Co.  37:  555,  96  N.  E.  846, 
252  111.  369. 

801.  A  provision  in  a  quarterly-premium 
insurance  policy  tliat,  if  the  pieniiums  are 
paid  when  due,  the  insurer  will,  upon  the 
death  of  the  insured,  pay  the  face  value  of 
the  policy  less  "tlie  bahiiice  of  diies  for  the 
current  year  of  the  death  of  the  insured," 
does  not  give  the  insuied  a  right  to  insur- 
ance for  the  whole  year  in  case  of  nonpay- 
ment of  a  quarterly  premium.  Thompson 
V.  Fidelity  Mut.  L.  Ins.  Co.  6:  IC39,  92  S. 
W.  1098,  116  Tenn.  557. 

802.  A  separate  allowance  may  be  made 
for  each  operation  necessitated  by  an  acci- 
dent, which  is  mentioned  on  the  schedule 
of  an  accident  insurance  policy  which  pro- 
vides that,  in  case  an  operation  is  neces- 
sitated by  any  accident,  a  sum  shall  be  paid 
in  addition  to  the  indemnity  provided  for 
by  the  policy,  of  the  sum  indicated  for 
such  operation  in  the  schedule,  "provided 
aiwuys  that  not  more  than  one  amount 
shall  be  payable  for  one  or  more  opera- 
tion.'; performed  as  the  result  of  one  acci- 
dent." Anderson  v.  Mtwa,  L.  Ins.  Co.  28: 
730,  74  Atl.  1051,  75  N.  H.  375. 

803.  A  provision  in  an  accident  insurance 
policy,  for  double  indemnity  in  case  of  in- 
juries received  while  riding  as  a  passenger 
in  a  public  conveyance  provided  for  passen- 
ger service  and  propelled  by  gasolene,  ap- 
plies to  injuries  received  while  a  passenger 
in  a  taxicab  hired  from  one  engaged  in  the 
business  of  letting  automobiles  to  the  pub- 
lic generally  for  hire,  whose  chaufleur 
drove  and  controlled  the  vehicle.  Prim- 
rose V.  Casualtv  Co.  37:  618,  81  Atl.  212, 
232  Pa.  210. 

804.  A  provision  in  an  accident  insurance 
policy  that,  in  case  of  loss  of  life,  limb, 
sight,  or  time  from  hernia,  one  tenth  of 
the  benefits  otherwise  provided  will  be  paid, 
applies  to  loss  of  time  from  hernia  caused 
by  the  accident  upon  which  the  claim  is 
founded,  and  is  not  limited  to  cases  where 
the  loss  of  time  is  caused  by  an  existing  her- 
Digest  1-52  Ii.R.A.(N.S.) 


nia.      Kelsey    v.    Continental    Casualty    Co. 
8:  1014,  108  N.  W.  221,  131  Iowa,  207. 

(Annotated) 
Effect    of   intoxication. 

805.  One  is  "under  the  influence"  of  an 
into.vicant,  within  the  meaning  of  an  acci- 
dent-insurance policy  limiting  liability  of 
the  company  in  such  cases,  when  he  has  re- 
covered from  intoxication  only  so  far  as  to 
be  fairly  able  to  take  care  of  himself.  Grin- 
nell  v.  General  Acci.  Ins.  Co.  15:  206,  68 
Atl.  655,  SO  Vt.  526.  (Annotated) 

806.  Intoxication  to  such  an  extent  as  to 
impair  the  ability  of  insured  to  care  for 
liimself,  and  thus  increase  the  probability 
of  his  suffering  accidental  injury  is  meant 
by  a  clause  in  an  accident  insurance  policy 
lessening  the  liability  of  insurer  in  case  in- 
sured is  injured  while  "insane,  delirious,  or 
under  the  influence  of  any  intoxicant  or  nar- 
cotic." Bakalars  v.  Continental  Casualty 
Co.  25:  1241,  122  N.  W.  721,  141  Wis.  43. 

( Annotated ) 
Specified  injuries. 

807.  Under  an  accident  insurance  policy 
limiting  the  liability  to  one  fifth  of  tlie 
amount  otherwise  payable  where  the  injury 
causing  the  loss  results  wholly  or  in  part 
from  tlie  intentional  act  of  tlie  insured  or 
of  any  other  person,  the  liability  is  limited 
to  one  fifth  of  the  amount  otherwise  pay- 
able where  the  uncontradicted  evidence 
shows  that  the  assured  was  intentionally 
struck  in  the  face  by  another  person  with- 
out any  intention  to  kill  him,  and  that  the 
assured  fell  backwards,  striking  his  head 
on  the  pavement,  fatally  fracturing  his 
skull,  the  injury  to  his  face  by  the  initial 
blow  not  being  serious.  Rvan  v.  Continental 
Casualty  Co.  48:  524,  142  N.  W.  288.  94 
Neb.  35.  (Annotated) 
Total  disability. 

808.  No  liability  for  death  arises  upon  a 
policy  insuring  against  permanent  disabil- 
ity. Hill  V.  Travelers'  Ins.  Co.  28:  742,  124 
N.  W.  898,  146  Iowa,  133.  (Annotated) 

809.  Total  disability  ensuing  within  twen- 
ty-four hours  after  an  accident,  although 
not  within  the  calendar  day  upon  which  it 
occurs,  is  within  the  operation  of  a  pro- 
vision of  an  accident  insurance  policy  for 
indemnity  for  an  injury  which  totally  dis- 
ables insured  from  "the  date  of  the  acci- 
dent." Robinson  v.  Masonic  Protective 
Asso.  47:  924,  88  Atl.  531,  87  Vt.  138. 

810.  That  as  a  portion  of  his  treatment, 
an  in.sured,  under  direction  of  his  physician, 
sits  out  of  doors  a  portion  of  the  time,  does 
not  destroy  his  rights  under  a  sick  benefit 
policy  insuring  him  against  sickness  while 
he  is  wholly  disabled  and  under  the  care 
of  a  physician  for  a  period  during  which  "he 
shall  be  continuously  and  necessarily  con- 
fined to  the  house."  Metropolitan  Plate 
Glass  &  C.  Ins.  Co.  v.  Hawes,  42:  700,  149  S. 
W.  1110,  150  Ky.  52.  (Annotated) 

811.  Taking  exercise  and  exposing  one's 
self  to  outside  air  will  not  prevent  a  recov- 
ery '  n  the  policy  insuring  against  sicJcnesa 
if  insured  is  entirely  incapacitated  for  work 
or  business  because  of  illness,  although  the 
policy    provides    that    a    disability    to    con- 


1604 


INSURANCE,  VI.  d,  1. 


stitute  a  claim  shall  oe  continuous,  com- 
plete, and  total,  requiring  absolute,  neces- 
sary confinement  to  the  house.  Jennings  v. 
Brotherhood  Acci.  Co.  i8:  109,  96  Pac.  982, 
44  Colo.  68. 

812.  An  insured  who,  at  all  times  during 
an  illness  characterized  by  recurring  periods 
of  severity,  has  been  unable  to  resume  the 
ordinary  duties  or  pleasures  of  life,  cannot 
be  said  not  to  have  been  confined  "constant- 
ly to  the  house,"  within  the  meaning  of  an 
insurance  contract  for  sick  benefits  because 
at  intervals  he  has  occasionally  stepped  into 
the  yard,  or  has  made  visits  to  his  physi- 
cian, and  otner  short  and  imusual  trips. 
Breil  v.  Glaus  Groth  Plattsdutschen  Vereen, 
23:  359,  120  N.  W.  905,  84  Neb.  155, 

(Annotated) 

813.  An  accident  insurance  company  can- 
not escape  liability  on  its  contract  for  week- 
ly indemnity  during  a  certain  period,  for 
total  disability  caused  by  an  accident  which, 
among  other  things,  results  in  loss  of  a 
limb,  because  provision  for  such  indem- 
nity is  made  subject  to  subsequent  pro- 
visions, one  of  which  is  that,  if  injury  re- 
sults in  loss  of  such  limb,  a  specified  sum 
less  than  the  claim  for  total  disability  shall 
be  paid,  whereupon  the  policy  shall  be  sur- 
rendered; and  another  of  which  provides 
that  in  no  event  will  claim  for  weekly  in- 
demnity be  valid,  if  a  valid  claim  for  any 
of  the  amounts  provided  for  special  injuries 
can  be  based  upon  the  same  accident  and 
resulting  injury,— at  least  where,  among 
the  provisions  for  special  allowances,  is  one 
to  the  effect  that,  if  the  injuries  result  in 
total  disability,  the  indemnity  shall  be  the 
sum  per  week  named  on  the  face  of  the 
policy  for  a  certain  period,  provided  the  dis- 
ability continue  so  long.  Anderson  v.  ^tna 
L.  Ins.  Co.  28:  730,  74  Atl.  1051,  75  N.  H. 
375.  (Annotated) 

814.  An  injury  which  wholly  incapaci- 
tates a  manual  laborer  from  performing 
any  and  every  kind  of  business  which  he  is 
able  to  do  or  capable  of  engaging  in  is  with- 
in the  terms  of  a  policy  providing  an  indem- 
nity for  an  injury  which  shall  wholly  dis- 
able and  prevent  him  from  prosecution  of 
any  and  every  kind  of  business,  although 
the  injury  would  not  prevent  his  doing 
mental  work  if  he  was  fitted  to  do  it.  In- 
dustrial Mut.  Indemnity  Co.  v.  Hawkins, 
29:  635,  127  S.  W.  457,  94  Ark.  417. 

815.  An  assured  is  entitled  to  recover  on 
a  policy  insuring  him  against  permanent 
disability  for  performing  manual  labor  on 
account  of  permanent  paralysis  of  either 
extremities,  where  one  hand  is  paralyzed 
so  that  it  compels  him  to  abandon  his  call- 
ing, and  there  is  no  way  of  restoring  it  to 
usefulness  except  by  an  operation  which 
he  has  no  means  to  secure.  Brotherhood  of 
Locomotive  Firemen  &  Enginemen  v. 
Aday,  34:  126,  134  S.  W.  928,  97  Ark.  425. 

816.  Paralysis  of  the  hand  of  a  railroad 
fireman  which  compels  him  to  retire  from 
railroad  service  is  within  the  meaning  of 
an  insurance  policy  against  injuries  which 
Digest  1-52  L.R.A.(N.S.) 


totally  and  permanently  disable  him  from 
the  performance  of  all  manual  labor. 
Brotherhood  of  Locomotive  Firemen  & 
Enginemen  v.  Aday,  34:  126,  134  S.  W.  928, 
97  Ark,  425, 


d.  Interest  in  proceeds. 


1.  Of  property  insurance. 

(See   also   same  heading   in  Digest   L.R.A. 

1-10.) 

Raising  question  of  falsity  of  answers  in 
application  in  contest  over  rigiit  to 
proceeds  of  policy,  see  Action  oe  Suit, 
43, 

Rights  in  proceeds  of  insurance  of  cargo  for 
account  of  whom  it  may  concern,  see 
Carriers,    767. 

Widow's  dower  interest  in  policy,  see 
Dower,  10. 

Right  of  vendor  to  recover  on  policy,  on 
theory  that  title  has  not  passed  to 
vendee,  see  Election  of  Remedies,  31. 

Parol  evidence  as  to,  see  Evidence,  920. 

Effect  on  wife's  rights  of  paying  to  husband 
insurance  on  her  property,  see  Hus- 
band AND  Wife,  55. 

Sufficiency  of  complaint  in  action  by  cargo 
owner  to  recover  insurance  proceeds 
from  carrier,  see  Pleading,  414. 

Collection  of  insurance  on  building  by  trus- 
tee, see  Trusts,  87. 

817.  Insurance  procured  in  his  own  name 
by  an  agent  upon  goods  in  his  possession, 
and  for  which  he  has  contracted  to  become 
absolutely  and  unconditionally  liable  to  his 
principal,  to  the  extent  of  their  value,  for 
their  loss  or  damage  by  fire,  does  not  con- 
stitute a  trust  fund  for  the  benefit  of  the 
principal,  but  inures  exclusively  to  the  bene- 
fit and  advantage  of  the  agent,  and  is  lia- 
ble for  his  debts  in  case  of  his  insolvency. 
Bradley  v.  BroAvn,  13:  152,  112  N.  W.  331, 
78  Neb.  836.  (Annotated) 
Mortgagor, 

818.  The  trustee  in  a  deed  of  trust,  who, 
pending  the  redemption  period  after  fore- 
closure sale,  collects  insurance  money  on 
the  property,  cannot  refuse  to  turn  it  over 
to  tl'.e  mortgagor  1  the  theory  that  his  in- 
terest in  the  property  has  ceased.  Rawson 
V.  Bethesda  Baptist  Church,  6:  44S  77  N.  E. 
560,  221  111.  216.  (Annotated) 
Mortgagee. 

Effect   of   mortgage    on    validity   of    policy, 

see   supra,   200,   233-238. 
Necessity    for    notice    of    loss,    see    supra, 

639. 
Effect    of    provision    as    to    arbitration    or 

appraisal,  see  supra,  668-670. 
Mortgagor's    acts    as    affecting    mortgagee, 

see   infra,    866-871, 
Right   to   insurance   as   between   mortgagee 

and   trustee  in  bankruptcy  of  insured, 

see  Bankruptcy,  63. 
Parol  evidence  as  to  meaning  of  mortgage 

clause,   see   Evidence,  983.  ,  , 


INSURANCE,  VI.  d,  2. 


1605 


Right    of    insured    to    maintain    action    on 

policy   containing  mortgage  clause,   see 

Parties,   46. 
Mortgagee's   right  of  action   on   policy,   see 

Parties,  77. 
Duty    of    mortgagee    receiving    proceeds    of 

policy   to   apply   it  upon   indebtedness, 

see  PaymejN't,   27. 
See  also  supra,  230. 

819.  A  mortgage  clause  written  on  a  sep- 
arate piece  of  paper  but  of  even  date  with, 
and  attached  to,  a  fire  insurance  policy  at 
the  time  of  its  execution,  which  makes  the 
loss,  if  any,  payable  to  the  mortgagee  as 
his  interest  may  appear,  does  not  constitute 
a  new  and  separate  contract  between  the 
insurance  company  and  the  mortgagee,  but 
merely  designates  the  payee  of  the  amount 
of  loss  according  to  the  interest  in,  not  the 
property  insured,  but  the  insurance  which 
he  may  make  appear.  Erie  Brewing  Co.  v. 
Ohio  Farmers'  Ins.  Co.  25:  740,  89  N.  E. 
1065,  81  Ohio  St.  1. 

820.  The  standard  mortgagee  clause  cre- 
ates an  independent  contract  of  insurance 
for  the  separate  benefit  of  the  mortgagee,  in- 
grafted upon  the  main  contract  of  insurance 
contained  in  the  policy  itself,  and  to  be 
rendered  certain  and  understood  by  reference 
to  the  policy.  Reed  v.  Firemen's  Ins.  Co. 
(N.  J.  Err.  &  App.)  35:  343.  80  Atl.  462,  81 
N.  J.  L.  523. 

821.  Assignment  of  the  equity  of  redemp- 
tion is  within  the  provisions  of  an  insur- 
ance policy  that,  in  case  of  insurance  pay- 
able to  a  mortgagee,  no  act  or  default  of 
any  person  other  than  the  mortgagee  or  his 
agents  shall  affect  his  right  to  recover  in 
case  of  loss.  Union  Inst,  for  Sav.  v.  Phoe- 
nix Ins.  Co.  14:  459,  81  N.  E.  994,  196  Mass. 
230. 

822.  That  a  mortgagee  has  no  knowledge 
of  insurance  which  has  been  secured  in  ac- 
cordance with  the  provisions  of  the  mort- 
gage, for  his  benefit,  by  the  mortgagor,  who 
retained  possession  of  the  policy,  will  not 
prevent  his  enforcing  the  policy  in  case  of 
loss.  Union  Inst,  for  Sav.  v.  Phcenix  Ins, 
Co.  14:  459,  81  N.  E.  994,  196  Mass.  230. 

823.  An  insurer  cannot  defeat  a  suit  by  a 
mortgagee  on  an  insurance  policy  taken  by 
the  mortgagor  for  the  benefit  of  his  inter- 
est as  it  may  appear,  by  offering,  several 
months  after  suit  is  brought,  to  pay  the 
amount  of  the  mortgage  if  the  mortgagee 
will  assign  it  to  the  insurer,  without  any 
ofler  to  pay  interest  or  costs  of  suit.  Union 
Inst,  for  Sav.  v.  Phoenix  Ins.  Co.  14:  459, 
81  N.  E.  994,  196  Mass.  230. 
Conditional  vendor. 

824.  A  vendor  of  real  estate,  who  retains 
the  title  to  secure  payment  of  the  purchase 
money,  but  unconditionally  assigns  the  in- 
surance on  the  buildings  to  the  vendee,  is 
not,  in  case  the  buildings  are  destroyed  by 
fire,  entitled  to  resort  to  a  court  of  equity 
to  reach  the  proceeds  of  the  policies,  al- 
though the  vendee  is  insolvent,  if  the  debt 
is  not  due.  Zenor  v.  Hayes,  13:  gog,  81  N.  j 
E.  1144,  228  111.  626.  (Annotated) 
Digest  1-52  L.R.A.(N.S.) 


2.  Of  insurance  on  persons. 
a.  In  general. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Payment   to   wrong   person,    see   infra,   859. 

Suificiency  of  evidence  of  intention  respect- 
ing beneficiary  in  life  insurance  policy, 
see  Evidence,  2229. 

Right  of  third  person  to  maintain  action 
upon  promise  of  beneficiary  to  pay  part 
of  proceeds  of  policy  to  such  third 
person,  see  Parties,  78. 

Trust  in  proceeds,  seu  Trusts,  25,  78. 

Effect  of  election  to  take  under  will  on 
right  to  proceeds  of  policy,  see  Wills, 
348. 

Implied  bequest  of  proceeds  of  life  insur- 
ance policy,  see  Wills,  151. 

Ademption  of  bequest  of  insurance  policy, 
see  Wills,  404. 

Effect  of  provision  after  bequest  of  policy 
that  legatee  pay  premiums,  see  Wills, 
417. 

825.  The  beneficiary  of  a  burial  insurance 
contract  which  provides  that,  at  the  death 
of  the  insured,  a  certain  sura  shall  be  paid 
to  a  certain  named  undertaker,  his  heirs  or 
assigns,  for  burial  of  the  insured,  is  the  un- 
dertaker. State  V.  Willett,  23:  197,  86  N. 
E.  68,  171  Ind.  296. 

b.    Widow,    children,    or   heirs. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Subjecting  life  insurance  to  year's  support 
of  widow,  see  Executors  and  Admin- 
istrators, 117. 

Insurance  on  husband's  life  as  separate 
estate  of  wife,  see  Husband  and  Wife, 
88-90. 

826.  Under  a  mutual  benefit  certificate 
made  payable  to  the  wife  of  the  holder, 
or,  in  case  of  her  death,  to  his  legal  repre- 
sentatives, his  administrator,  and  not  his 
children,  is  entitled  to  the  proceeds  of  the 
noliey  in  case  of  the  wife's  death  before 
that  of  the  member.  Hunt  v.  Remsberg, 
32:  246,    112   Pac.    590,   83   Kan.    665. 

(Annotated) 

827.  Children  of  a  child  who  dies  during 
the  lifetime  of  the  beneficiary  have  no  in- 
terest in  an  insurance  policy  the  proceeds 
of  which  are  payable  to  children  of  the 
beneficiary  in  case  of  her  death  prior  to 
insured.  Davis  v.  New  York  L.  Ins.  Co. 
41:  250,  98  N.  E.  1043,  212  Mass.  310. 

( Annotated ) 

Effect   of   divorce. 

Statute  authorizing  designation  of  new 
beneficiary  in  case  of  divorce,  see  Con- 
stitutional Law,  63. 

Estoppel  of  divorced  husband  to  assert 
title  to  proceeds  of  insurance  by  leaving 
policy  in  possession  of  wife,  see  Estop- 
pel, 91. 

See  also  infra,  849. 

828.  Children  who  are  entitled  to  the  pro- 


1606 


INSUKANCE,  VI.  d,  2. 


oeeda  of  a  policy  of  insurance  on  their 
father's  life  in  case  of  the  death  of  his 
wife,  the  prior  beneficiary,  in  his  lifetime, 
cannot  claim  the  proceeds  in  case  the  father 
dies  before  his  wife,  although  she  has  been 
deprived  of  the  right  to  the  money  by  di- 
vorce proceedings.  Sea  v.  Conrad,  47:  1074, 
1.59  S.  W.  622,  155  Ky.  51. 

829.  A  wife  to  whom  a  twenty-year  en- 
dowment policy  is  payable  in  the  event  of 
the  death  of  the  husband  within  twenty 
years  and  during  her  lifetime  acquires  a 
vested  interest  in  the  policy,  which  is  not  de- 
vested by  a  decree  of  divorce  in  her  favor, 
nor  by  an  agreement  on  her  part,  in  case  the 
divorce  is  granted,  to  accept  certain  speci- 
fied property  as  alimony  and  relinquish  to 
the  husband  all  claim  arising  out  of  the 
marital  relation  to  any  of  his  property. 
Wallace  v.  Mutual  Ben.  L.  Ins.  Co.  3:  478, 
106  N.  W.  84,  97  Minn.  27.  (Annotated) 

830.  A  woman  who  divorces  her  husband, 
who  has  named  her  as  beneficiary  in  a  mu- 
tual benefit  certificate,  forfeits  her  rights 
thereunder  where  the  statute  provides  that 
payment  of  such  certificate  shall  be  only  to 
families,  heirs,  blood  relatives,  affianced 
husband,  or  affianced  wife,  or  to  persons 
dependent  on  the  member.  Green  v.  Green, 
39:  370,  144  S.  W.  1073,  147  Ky.  608. 

(Annotated) 

831.  A  paid-up  life  insurance  policy  tak- 
en by  a  man  for  the  benefit  of  his  wife  is 
within  a  statute  providing  that  upon  di- 
vorce the  court  shall  restore  any  property 
which  either  party  may  have  obtained  di- 
rectly or  indirectly  from  or  through  the 
other  during  marriage  and  in  consideration 
or  by  reason  thereof.  Sea  v.  Conrad,  47: 
1074,  159  S.  W.  622,  155  Ky.  51. 

Heirs. 

See  also  infra,  851,  865. 

832.  The  "legal  heirs'"  of  a  member  of  a 
benefit  society,  to  whom  the  rules  of  the 
order  require  his  benefit  to  be  paid,  are 
the  persons  designated  as  distributees  by 
the  statutes  for  the  distvibution  of  the  per- 
sonal property  of  intestates.  Thomas  v.  Su- 
preme Lodge,  K.  of  H.  3:  904,  105  N.  W.  922, 
126  Wis.  593.  (Annotate!) 

833.  The  retention  of  a  mutual  benefit 
certificate  payable  to  the  "legal  represent- 
atives" of  the  member,  which,  because  of 
lack  of  authority  in  the  society  to  provide 
otherwise,  must  b:  construed  as  heirs,  after 
the  amendment  of  the  charter  so  as  to  per- 
mit a  payment  to  assigns,  without  any  at- 
tempt to  change  the  beneficiary  according 
to  the  rules  of  the  order  and  the  execution 
of  a  will  in  favor  of  an  assign,  will  not  de- 
prive the  heirs  of  the  ight  to  the  fund  on 
the  theory  that  the  amendment  restored  to 
the  words  "legal  representatives"  their  pri- 
mary meaning.  Re  Harton,  4:  939,  62  Atl. 
1058,  213  Pa.  499.  (Annotated) 

834.  A  contract  by  a  mutual  benefit 
society,  having  ^barter  power  to  pay  sums 
to  the  family  and  heirs  of  deceased  mem- 
bers, to  pay  to  his  "legal  representatives," 
will  be  construed  to  mean  his  "heirs."  Re 
Harton,  4:  939,  62  Atl.  1058,  213  Pa.  499. 
Digest  1-52  L,.R.A.(N.S.) 


c.  Trust  fund. 

(See  same  heading  in  Digest  L.R.A.  1-10.) 

d.  Rights  of  assignees  or  creditors. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

As  to  assignment  of  policy  generally,  see 
supra,  IV. 

Creditors'  bill  to  reach  surrender  value  of 
debtor's  life  policies,  see  Creuitoks' 
Bill,   15. 

Exemption  of  life  insurance,  see  Exemp- 
tions, 9,  10. 

Garnishment  of,  see  Garnishment,  21-23, 
47. 

835.  The  attempt  by  the  administratrix 
of  an  insured  to  maintain  the  truth  of  rep- 
resentations made  by  him  in  securing  the 
policy,  which  she  knows  to  be  false,  will  not 
prevent  her  from  recovering  the  proceeds  of 
the  policy  from  an  assignee  claiming  under 
a  wagering  contract.  Bendet  v.  Ellis,  18: 
114,  111  S.  W.  795,  120  Tenn.  277. 

e.  Mutual  benefit  insurance. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Effect  of  divorce,  see  also  supra,  830. 
Review   of   verdict   finding  that   beneficiary 

is  a  "dependent,"  see  Appeal  and  Eb- 

BOB,    909. 
Proceeds   from   benefit   certificate   as   wife's 

separate     estate,     see     Husband     and 

Wife,  90. 
Effect    of    will    to    convey    benefit    due    on 

benefit  certificate,  see  Wills,  193. 
See    also    supra,    73,    80,    96. 

836.  The  imposition,  as  a  condition  of 
membership  in  a  benefit  society,  of  a  stip- 
ulation that  the  benefit  shall  go  as  directed 
by  the  laws  of  the  order,  and  shall  not  be 
controlled  by  will,  is  not  at  variance  with 
law  or  public  policy.  Tliomas  v.  Supreme 
Lodge,  K.  of  H.  3:  904,  105  N.  W.  922,  126 
Wis.  593. 

837.  The  terms  of  the  charter  of  a  mutual 
benefit  society,  and  not  those  of  the  statute 
under  which  it  was  incorporated,  and  which 
might  have  been  adopted,  will  control  in 
determining  who  may  become  beneficiaries. 
Murphy  v.  Nowak,  7:  393,  79  N.  E.  112,  223 
111.  301. 

838.  Proof  that  a  benefit  society  had 
adopted  a  statute  limiting  the  class  of  its 
beneficiaries  is  not  necessary  in  a  contest 
over  a  fund,  if  facts  showing  the  applicabil- 
ity of  the  statute  are  admitted  by  the 
pleadings.  Murphy  v.  Nowak,  7:  393,  79 
N.  E.  112,  223  111.  301. 

839.  The  right  of  one  made  beneficiary  in 
a  mutual  benefit  certificate  as  a  dependent 
of  assured  to  receive  the  proceeds  of  the  cer- 
tificate ceases  upon  her  marrying  and  secur- 
ing means  of  support  other  than  the  as- 
sured prior  to  his  death,  where  by  the  lawf 


IKSURANOE,  VI.  e. 


1607 


of  the  order  the  fund  can  be  paid  only  to 
dependents  of  deceased  mcmbei's.  Murphy 
V.  Nowak,  7:  393,  79  N.  E.  112,  223  111.  301. 

(Annotated) 
840.  A  sufficient  designation  of  benefici- 
ary is  effected  where  assured,  in  his  applica- 
tion, directs  the  certificate  to  be  issued  in 
favor  of  his  wife,  subject  to  such  future  dis- 
posal as  applicant  may  direct,  and  upon  the 
back  indorses  an  unsigned  direction  to  make 
the  certificate  payable  to  the  wife  in  trust 
for  a  person  named,  and  accepts  and  recog- 
nizes as  valid  a  certificate  following  such 
direction.  IViurphy  v.  Nowak,  7:  393,  79  N. 
E.   112,  223  111.  301. 

841.  A  member  of  a  mutual  benefit  so- 
ciety has  no  interest  in  the  certificate 
which  can  be  disposed  of  by  will,  nor  will 
his  testamentary  designation  of  a  new 
beneficiary  be  held  effectual  where  the 
rules  and  bj'^-laws  of  the  order  and  the 
contract  of  insurance  provide  a  method  by 
which  a  change  of  beneficiary  may  be  made 
by  the  member,  since  in  that  case  such 
method  must  be  followed.  Modern  Wood- 
men V.  Puckett,  17:  1083,  94  Pac.  132,  77 
Kan.  284. 

842.  A  member  of  a  mutual  benefit  so- 
ciety who  holds  a  certificate  of  insurance 
therein  has  no  interest  in  the  fund;  and 
neither  the  certificate  nor  its  proceeds  be- 
comes a  part  of  the  estate  of  the  member, 
but  he  possesses  simply  the  power  of  ap- 
pointing a  beneficiary,  wliich,  if  not  exer- 
cised, becomes  inoperative.  ^lodern  Wood- 
men V.  Puckett,  17:  1083,  94  Pac.  132,  77 
Kan.  284. 

843.  One  not  within  the  class  of  persons 
authorized  by  the  rules  of  a  mutual  bene- 
fit society  to  become  beneficiaries  is  not 
entitled  to  share  in  the  proceeds  of  a  cer- 
tificate issued  by  the  society.  Modern 
Woodmen  v.  Puckett,  17:  1083,  94  Pac.  132, 
77  Kan.  284. 

844.  The  interest  of  a  beneficiary  in  a 
benefit  certificate  does  not,  where  the  mem 
ber  has  the  right  to  change  the  beneficiary 
at  will,  vest  until  the  member's  death.  Lit- 
tleton V.  Sain,  41:  1118,  150  S.  W.  423,  126 
Tenn.  561. 

R45.  The  only  interest  of  a  beneficiary 
named  in  a  benefit  certificate  issued  by  a 
mutual  benefit  society  is  an  expectancy, 
which  ceases  at  her  death;  and  where  she 
dies  before  the  insured  member,  her  heirs 
cannot  take  the  fund  by  inheritance.  Mod- 
ern Woodmen  v.  Puckett.  17:  1083,  94  Pac. 
132,  77   Kan.  284. 

846.  The  proceeds  of  a  mutual  benefit 
certificate  pass  to  the  heirs  of  the  holder 
in  the  event  of  his  death  subsequent  to 
the  death  of  the  beneficiary  and  without 
having  designated  a  new  beneficiary,  where 
the  rules  and  by-laws  of  the  society,  which 
are  a  part  of  the  contract  of  insurance,  so 
provide.  Modem  Woodmen  v.  Puckett,  17: 
1083,  94  Pac.  132,  77  Kan.  284. 

(Annotated) 

847.  Failure  to  apportion  the  proceeds  of 
a  benefit  certificate  between  the  beneficiaries 
entitles  one  to  the  entire  sum  upon  the 
other  proving  ineligible.  Cunat  v.  Supreme 
Digest  1-52  L.R.A.(N.S.) 


Tribe   of  Ben  Hur,   34:  1192,  94  N.  E.  »25, 
249   111.   448. 

848.  Brothers  and  sisters  and  nephews 
and  nieces  not  living  with  or  supported  by 
assured  are  not  legal  dependents  within 
the  meaning  of  a  provision  making  the 
proceeds  of  a  benefit  insurance  policy  pay  • 
able  to  such  persons,  and  the  proceeds  are 
therefore  assets  in  the  hands  of  the  ad- 
ministrator. Caldwell  v.  Little,  39:  450,  74 
S.  E.  10,  158  N.  C.  351. 

849.  Designation  of  a  divorced  wife  who 
has  promised  to  remarry  a  holder  of  a 
mutual  benefit  certificate,  as  beneficiary,  is 
necessary  to  give  her  the  right  to  the 
proceeds  as  an  affianced  wife,  where  the 
designation  in  her  favor  as  wife  was  an- 
nulled by  the  divorce.  Green  v.  Green, 
39:  370,  144  S.  W.  1073,  147  Ky.  608. 

850.  That  the  association  admits  its  lia- 
bility to  the  designated  beneficiary  in  a 
mutual  benefit  certificate  does  not  preclude 
the  husband  of  the  deceased  member  from 
contesting  his  right,  where  the  certificate 
provides  that  the  rights  of  beneficiaries 
shall  be  determined  by  the  laws  of  the 
order,  and  that,  if  the  designation  proves 
invalid,  the  benefit  shall  be  paid  to  the 
member's  husband.  Supreme  Lodge  0.  of  M. 
P.  V.  Nevins,  3:  334,  106  N.  W.  140,  142 
Mich.  666. 

851.  The  personal  representative  of  a 
member  of  a  benefit  society  who  dies  leav- 
ing no  family  or  dependent  relative  is  not 
precluded  from  maintaining  an  action  to 
recover  sick  benefits  due  and  unpaid  at  the 
time  of  the  member's  death,  by  a  provision 
of  the  constitution  of  the  society  that  bene- 
fits are  rights  personal  to  the  member,  his 
family,  and  dependent  relatives,  and  are 
not  payable  to  the  legal  representatives  of 
a  member's  estate.  Kelly  v.  Trimont  Lodge, 
52:  823,  69  S.  E.  764,  154  N.  C.  97. 

c.  Defenses ;  release. 

(See  also  same  heading  in  Digest  L.R.A , 
1-70.) 

Causes  of  loss,  injury,  or  death  as  defense, 
see  supra,  V.  b. 

Murder  of  Insured  as  defense,  see  supra, 
698-701. 

Statute  depriving  company  of  defense  of 
suicide,  see  Action  or  Suit,  47. 

Admissibility  of  telephone  conversations  to 
show  cause  for  burning  of  propertj',  see 
Evidence,  1811. 

Necessity  of  pleading  defense,  see  Plead- 
ing, 467,  470,  484. 

Sufficiency  of  allcoations  as  to,  see  Plead- 
ing, '522,  523. 

See   also   supra,   436,   437. 

852.  To  entitle  an  insurance  company  to 
defeat  liability  on  a  policy  because  of  fraud, 
it  is  not  required  to  tender  back  the  prem- 
ium received.  Duncan  v.  National  Mut.  F. 
Ins.  Co.  20:  340,  98  Pac.  634,  44  Colo.  472. 

853.  Liability  of  insurer  of  the  cargo  of  a 
steamer  is  not  destroyed  by  the  fact  that, 
to  reach. its  destination  on  the  course  of  a 


1608 


LNSURANOE,  VI.  e. 


river,  the  cargo  is  transferred  and  divided 
between  a  smaller  steamer  and  a  bar<»e.  St. 
Paul  F.  &  M.  Ins.  Co.  v.  Pacific  Cold  Stor- 
age Co.  14:  1 161,  157  Fed.  625,  87  C.  C.  A. 
14. 

854.  A  vessel  is  not  shown  to  be  uiisea- 
worthy  at  the  time  of  commencing  her  voy- 
age, so  as  to  avoid  insurance  on  her  cargo, 
by  the  fact  that  her  boilers  begin  to  leak 
soon  after  the  voyage  begins,  after  she  has 
gone  aground,  where  they  stood  a  standard 
test  before  the  voyage  began,  and  the  vessel 
would  have  completed  the  voyage  in  safety 
had  she  not  encountered  an  unforeseen 
peril.  St.  Paul  F.  &  M.  Ins.  Co.  v.  Pacific 
Cold  Storage  Co.  14:  ii6i,  157  Fed.  625,  87 
C.  C.  A.  14. 

855.  A  conspiracy,  unaccompanied  by  an 
overt  act,  to  burn  insured  property,  in 
which  the  owner  joins,  does  not.  although 
it  is  in  process  of  accomplishment  at  the 
time  the  property  is  destroyed  by  fire, 
avoid  the  policy,  under  provisions  that  the 
policy  shall  be  void  in  case  of  any  fraud 
touching  any  matter  relating  to  the  sub- 
ject of  the  insurance,  or  if  the  hazard  is  in- 
ci'eased  by  any  means  within  the  control  or 
knowledge  of  the  insured.  Ampersand  Ho- 
tel Co.  V.  Home  Ins.  Co.  28:  218,  91  N.  E, 
1099,  198  N.  Y.  495. 

856.  A  policy  of  insurance  secured  by  a 
man  on  his  wife's  house  cannot  be  avoided 
for  fraud  in  concealing  the  title,  if  no  ques- 
tion was  asked  on  that  subject  and  the 
policy  contained  no  provision  as  to  owner- 
ship. Kludt  V.  German  Mut.  F.  Ins.  Co, 
45:  1 131,  140  N.  W.  321,  152  Wis.  637. 

857.  An  insurance  company  cannot  escape 
liability  for  a  fire  loss  because  the  deed 
to  the  plaintiff  corporation  was  made  before 
it  received  its  charter,  and  the  corporate 
name  used  in  the  deed  was  slightly  different 
from  that  subsequently  allotted  to  it.  Sum- 
ter Tobacco  Warehouse  Co.  v.  Phoenix  Ins. 
Co.  10:  736,  56  S.  E.  654,  76  S.  C.  76. 

858.  In  the  absence  of  express  exception 
in  the  policy,  a  fire  insurance  company  is 
not  relieved  from  liability  for  loss  by  fire  by 
the  fact  that,  at  the  time  of  the  fire,  the 
water  supply  system  of  the  municipality 
was  useless  because  of  bursted  or  discon- 
nected pipes.  McEvov  v.  Security  F.  Ins. 
Co.  22:  964,  73  Atl.  157,  110  Md.  275. 

859.  A  life  insurance  company  cannot  ab- 
solve itself  from  liability  to  the  beneficiary 
duly  designated  by  the  insured  for  the  pro- 
ceeds of  the  policy  by  paying  them  to  the 
administrator  of  the  insured,  although  the 
policy  provides  that  the  production  by  the 
corporation  of  the  policy  and  of  a  receipt 
signed  by  any  person  furnishing  satisfac- 
tory proof  that  he  is  executor  of  insured 
shall  be  conclusive  proof  that  the  sum  had 
been  paid  to  the  person  lawfully  entitled  to 
receive  the  same.  Smith  v.  Metropolitan 
L.  Ins.  Co.  20:  928,  71  Atl.  11,  222  Pa.  226. 

( Annotated ) 

860.  That  one  parent  of  an  insured  died 
of  phthisis  before  the  medical  examination 
is  not  of  itself  enough  to  prove  that  suf- 
ficient cause  existed  for  the  rejection  of  the 
insured.  Gilroy  v.  Supreme  Court  L  O.  0.  F. 
Digest  1-52   L.R.A.(N.S.) 


(N.  J.  Err.  &  App.)    14:  632,  67  Atl.  1037, 
75  N.  J.  L.  584. 

861.  No  action  can  be  maintained  by  the 
beneficiary  upon  a  life-insurance  policy 
where  the  insured,  because  of  wrongful  acta 
on  the  jjart  of  the  insurer,  refused  to  pay 
assessments  and  directed  the  cancelation  of 
tlie  policy,  whicli  lie  acquiesced  in  for  more 
than  four  years  before  his  death.  Price 
v.  Mutual  Keserve  L.  Ins.  Co.  4:  870,  62  Atl. 
1040,  102  Md.  683. 

862.  In  a  suit  upon  a  mutual  benefit  cer- 
tificate, in  order  to  sustain  a  defense  that 
the  medical  examination  of  the  insured  was 
reconsidered  and  rejected  within  six  months 
by  the  secretary  of  the  medical  board  of  the 
defendant,  in  accordance  with  a  provision 
therefor  in  the  certificate,  the  defendant 
must  show  that  the  reconsideration  and  re- 
jection were  for  a  sufficient  cause  which 
existed  at  the  time  of  the  original  exam- 
ination. Gilroy  v.  Supreme  Court  I.  0.  0. 
F.  (N.  J.  Err.  &  App.)  14:  632,  67  Atl.  1037, 
75  N.  J.  L.  584. 

863.  In  the  absence  of  fraud  a  mere  de- 
feet  in  the  ritualistic  forms  attending  the 
initiation  into  a  benefit  society  of  one  who 
has  been  passed  by  the  examining  physician 
and  in  wliose  favor  a  certificate  has  been 
issued  will  not,  where  he  has  been  adopted 
and  reported  as  a  member,  defeat  a  recovery 
upon  the  certificate.  Lakka  v.  Modern 
Brotherhood,  49:  902,  143  N.  W.  513,  163 
Iowa,  159.  (Annotated) 

864.  Notice  by  a  woman  who  had  insured 
property  as  one  having  an  interest  as  ten- 
ant by  entireties,  in  her  proof  of  loss,  that 
her  interest  in  the  property  was  a  total 
interest,  is  sufficient  to  apprise  the  insurer 
of  a  change  of  interest,  so  that  it  cannot 
claim  the  right,  after  the  beginning  of  the 
trial  of  an  action  on  the  policy,  to  amend 
its  notice  of  special  defenses  so  as  to  show 
a  change  of  title,  on  the  theory  that  it  did 
not  discover  it  until  after  the  commence- 
ment of  the  trial.  O'Toole  v.  Ohio  German 
F.  Ins.  Co.  24:  802,  123  N.  W.  795,  159  Mich. 
187. 

865.  Making  the  proceeds  of  an  accident- 
insurance  policy,  in  case  of  the  death  of 
the  insured,  payable  to  his  estate,  does  not 
violate  the  statutes  authorizing  such  insur- 
ance solely  for  the  benefit  of  heirs,  where 
the  policy  expressly  provides  that  the  estate 
shall  receive  the  fund  in  trust  for,  and  pay 
it  forthwith  to,  the  heirs.  Lewis  v.  Brother- 
hood Accident  Co.  17:  714,  79  N.  E.  802,  194 
Mass.  1. 

Mortgagor's    acts    as    affecting    zuort- 

gagee. 
In  respect  to  arbitration  or  appraisal,  see 

supra,  668-670. 

866.  The  consideration  which  supports  an 
insurance  policy  supports  also  a  mortgagee 
clause  attached  to  it  at  the  time  of  its 
execution,  so  that  recovery  may  be  had  on 
that  clause  if  its  conditions  have  been  com- 
plied with,  although  the  mortgagor  could 
not  have  enforced  the  policy  because  of  hia 
default.  People's  Sav.  Bank  v.  Retail  Mer- 
chants' Mut.  F.  Ins.  Asso.  31:  455,  123  N. 
W.  198.  146  Iowa,  536. 


INSURANCE,  VI.  f. 


1609 


867.  A  policy  of  fire  insurance  in  the 
standard  form,  wliicli  is  void  as  to  the  as- 
sured owner,  because  of  his  breach  of  the 
warranty  that  his  interest  is  not  otlier  than 
unconditional  and  sole  ownership,  may  nev- 
ertheless be  valid  as  to  a  mortgagee,  when 
the  mortgagee  clause  in  the  usual  form  is 
attached  to  the  policy.  Reed  v.  Firemen's 
Ins.  Co.  (N.  J.  Err.  &  App.)  35:  343,  80 
Atl.  462,  81  N.  J.  L.  523. 

868.  A  provision  in  the  ortgage  clause 
of  a  policy  of  fire  insurance  that  the  in- 
surance should  not  be  invalidated  by  any 
act  or  neglect  of  the  mortgagor  or  owner 
of  the  property  insured  has  reference  to 
the  subsequent  acts  or  neglects  of  the  mort- 
gagor only,  and  does  not  apply  to  his  appli- 
cation for  insurance  or  his  statements  or 
omissions  therein.  Liverpool  &  London  & 
Globe  Ins.  Co.  v.  Agricultural  Savings  & 
Loan  Co.  1  B.  R.  C.  5!)3,  33  Can.  S.  C.  94. 

869.  An  appropriation  by  the  owner  of  in- 
sured property,  which  is  destroyed,  of  the 
proceeds  of  the  sale  of  the  debris,  after 
total  loss,  to  his  own  use,  would  be  an  act  of 
the  owner,  but  such  act  would  not  invali- 
date the  insurance  of  the  mortgagee,  or  cast 
upon  the  mortgagee  the  burden  of  proving 
the  amount  realized  from  such  sale.  Reed 
v.  Firemen's  Ins.  Co.  (N.  J.  Err.  &  App.) 
35:  343.  80  Atl.  4G2,  81  N.  J.  L,  623. 

870.  The  enforcement  of  a  mortgage 
clause  attached  to  an  insurance  policy, 
under  a  statute  providing  that  the  insur- 
ance of  the  mortgage  interest  shall  not  be 
invalidated  by  any  act  or  neglect  of  the 
owner  of  the  property,  will  not  be  prevented 
by  the  fact  that  the  policy  was  invalid  be- 
cause the  interest  of  the  owner  was  not  cor- 
rectly described.  Bacot  v.  Phenix  Ins.  Co. 
25:  1226,  50  So,   729,  96  Miss.   223. 

(Annotated) 

871.  That  mortgagors  who  secured  by 
misrepresenting  their  title  a  policy  of  in- 
surance which  contained  a  mortgage  clause 
were  made  parties  to  a  suit  to  recover  on 
the  policy  when  the  contract  was  invalid  so 
far  as  they  were  concerned  does  not  prevent 
a  recovery  in  favor  of  the  mortgagee,  since 
they  can  be  eliminated  from  the  case.  Bacot 
V.  Phenix  Ins.  Co.  25:  1226,  50  So.  729,  96 
Miss.  223. 

Release. 

Necessity  of  tendering  amount  received   in 

settlement  of  claim  procured  by  fraud, 

see  infra,  894. 
Necessity   of   consideration   for   release,   see 

Contracts,    56. 

872.  The  beneficiary  of  an  insurance  pol- 
icy, who  is  induced  by  the  fraud  of  the 
company  to  sign  a  receipt  in  full  upon  re- 
ceiving a  small  portion  of  the  amount  due, 
is  not  thereby  prevented  from  recovering 
the  full  amount  due.  Industrial  Mut.  In- 
demnity Co.  V.  Thompson,  10:  1064,  104  S. 
W.  200,  83  Ark.  575. 

873.  The  owner  of  insured  property  de- 
stroyed through  the  negligence  of  a  rail- 
road company  does  not  release  the  liability 
of  the  insurer  by  settling  with  the  railroad 
for  an  amount  representing  the  difference 
between  the  value  of  the  property  and  the 
Digest  1-52  I..R.A.(N.S.) 


amount  of  insurance,  and  giving  a  receipt 
stating  that  the  amount  is  above  that  for 
which  the  property  is  insvired,  which  latter 
amount  is  to  be  paid  by  the  insurance  com- 
pany. Brown  v.  Vermont  Mut.  F.  Ins.  Co. 
29:  6g8,    74    Ath    1061,    83    Vt.    161. 

(Annotated) 
873a.  A  clause  in  a  release  by  one  insured 
against  disability  from  sickness,  upon  re- 
ceiving a  draft  for  a  claim  for  disability 
from  illness  which  has  not  terminated  at 
the  time  the  claim  is  made,  which  relieves 
the  insurer  from  all  liability  for  all  claims 
for  indemnity  growing  out  of  that  illness, 
will  be  interpreted  in  the  light  of  the  policy 
and  proof  of  claim,  and  be  limited  to  the 
liability  which  had  accrued  at  the  time  the 
claim  was  prosecuted,  and  not  extended  to 
what  subsequently  accrues  from  the  same 
illness.  Moore  v.  Maryland  Casualty  Co. 
24:  211,  63  S.  E.  675,  150  N.  C.  153. 

(Annotated) 

/.  Suhrogation ;   rights   of   carrier. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Splitting  of  cause  of  action  against  person 
responsible  for  loss,  see  Action  ob 
Suit,  95. 

Action  by  automobile  owner  for  personal 
injuries  resulting  from  accident  as  bar 
to  suit  by  insurer  of  machine  subro- 
gated to  owner's  claim  for  damages, 
see  Action   or  Suit,   106. 

Constitutionality  of  statute  as  to  subro- 
gation, see  Constitutional  Law,  465. 

Impairment  of  contract  obligation  by  stat- 
ute as  to  insurer's  right  to  subrogation, 
see  Constitutional  Law,  806. 

Right  of  courts  to  engraft  exceptions  on 
statute  subrogating  railroad  compa- 
nies responsible  for  fire  to  insurance 
upon  property  destroyed,  see  Courts, 
94. 

Estoppel  of  one  responsible  for  injury  to 
automobile  in  action  against  him  by 
insurance  company  subrogated  to  riglits 
of  owner,  see  Estoppel,  200. 

Action  by  insurer  against  person  causing 
injury,  see  Parties,  14,  15,  17. 

Proper  party  to  sue  wrongdoer  where  in- 
sured property  is  destroyed  by  negli- 
gence,  see   Parties,    16. 

Right  of  insurer  entitled  to  subrogation  to 
maintain  action  for  negligent  injury, 
see  Parties,  14,  15. 

Proper  parties  to  action  by  insurer  to 
recover  against  railroad  causing  loss  of 
property,  see  Parties,  10. 

Retrospective  effect  of  statute  as  to,  see 
Statutes,    312. 

874.  That  an  insurer  is  a  member  of  an 
unlawful  combination  does  not  prevent  its 
enforcing  a  right  of  subrogation  to  the 
claim  against  one  wrongfully  destroying 
the  property,  since  the  subrogation  agree- 
ment does  not  relate  to  the  business  of  the 
combine.  Freed  v.  American  F.  Ins.  Co.  11: 
368,  43  So.  947,  90  Miss.  72.         (Annotated) 


1610 


INSURANCE,  VI.  f. 


875.  An  insurer's  right  of  subrogation  to 
the  property  owner's  remedy  against  one 
causing  loss  of  the  property  by  fire  extends 
to  the  statutory  right  of  recovery  against 
a  railroad  company  for  setting  out  fire  by 
the  operation  of  its  road.  British  America 
Assur.  Co.  V.  Colorado  &  S.  R.  Co.  41:  1202, 
125  Pac.  508,  52  Colo.  589. 

876.  An  insurer  of  property  destroyed  by 
fire  negligently  set  by  a  locomotive  engine 
is  not  entitled  to  subrogation  i:-  the  owner's 
rights  against  the  railroad  company,  under 
a  statute  making  the  corporation  using  a 
locomotive  which  communicates  fire  respon- 
sible for  the  injury,  but  entitling  it  to  the 
benefit  of  any  insurance  which  has  been 
effected  on  the  property  by  its  owner.  Far- 
ren  v.  Maine  C.  R.  Co.  52:  203,  90  Atl.  497, 
112  Me,  81.  (Annotated) 

877.  An  insurance  company  which  pays  a 
fire  loss  caused  by  negligence  of  a  railroad 
company  is  subrogated  to  the  property 
owner's  right  of  action  against  the  com- 
pany. New  York,  C.  &  St.  L.  R.  Co.  v. 
Roper,  36:  952,  96  N.  E.  468,  176  Ind.  497. 

878.  An  insurance  company  which  is  com- 
pelled to  pay  a  loss  caused  by  fire  set  out 
by  the  negligence  of  a  railroad  company 
cannot  after  the  owner  of  the  property  has 
collected  its  value  from  the  railroad  com- 
pany, and  it  has  satisfied  its  liability  under 
the  policy,  maintain  an  action  against  the 
railroad  company  to  compel  it  to  make  good 
its  loss.  Illinois  C.  R.  Co.  v.  Hicklin,  23; 
870,  115  S.  W.  752,  131  Ky.  624. 

879.  Where  an  insurance  company  which 
has  been  informed  of  the  pendency  of  an 
action  brought  by  an  insured  whose  prop- 
erty was  destroyed  by  fire  by  a  wrongdoer 
to  recover  of  such  wrongdoer  makes  no 
effort  to  intervene  and  protect  its  inter- 
est, and  the  insured  accepts  in  settlement 
damages  from  the  wrongdoer,  which,  added 
to  the  amount  of  the  insurance,  is  less  than 
the  amount  of  his  loss  and  expenses  of 
'itigation,  such  insurance  company  can  re- 
cover nothing  from  the  insured.  Shaw- 
nee F.  Ins.  Co.  v.  Cosgrove,  41:  719,  116 
Pac.  819,  121  Pac.  488,  85  Kan.  296,  86  Kan. 
374.  (Annotated) 

880.  An  accident  insurance  company  does 
not,  in  the  absence  of  a  provision  to  that 
effect  in  the  policy,  upon  paying  a  loss,  be- 
come subrogated  to  the  rights  of  the  policy 
iiolder  against  the  one  negligently  causing 
the  accident.  Gatzweiler  v.  Milwaukee 
Electric  R.  &  L.  Co.  18:  in,  116  N.  W.  633, 
136  Wis.  34.  (Annotated) 

881.  The  principle  of  subrogation  applies 
in  favor  of  the  insurer  against  employers' 
liability,  so  as  to  permit  him,  after  he  has 
paid  a  loss  for  which  the  employer  is  lia- 
ble, to  enforce  the  right  of  the  employer 
against  one  primarily  liable  for  the  in- 
jury. Travelers'  Ins.  Co.  v.  Great  Lakes 
Engineering  Works  Co.  36:  60,  184  Fed. 
426,  107  C.  C.  A.  20. 

882.  That  one  who  nas  insured  an  em- 
ployer against  liability  for  injury  to  his 
servant  pays  a  claim  without  the  entry  of 
Digest  1-52  I..R.A.(N.S.) 


a  judgment  establishing  it  does  not  pre- 
vent his  maintaining  an  action  under  liis 
right  of  subrogation  against  the  one  pri- 
marily liable  for  the  injury.  Travelers'  Ins. 
Co.  v.  Great  Lakes  Engineering  Works  Co. 
36:  60,  184  Fed.  426,  107  C.  C.  A.  20. 

883.  That  by  statute  an  action  for  wrong- 
ful death  must  be  brought  by  the  personal 
representative  for  the  benefit  of  the  next 
of  kin  does  not  prevent  the  subrogation  of 
one  who  has  insured  against  employers' 
liabilitj-,  and  has  paid  a  death  claim  be- 
cause of  an  injury  caused  by  the  negligence 
of  one  installing  machinery  in  the  employ- 
er's plant,  to  the  rights  of  the  employer, 
and  his  maintenance  of  an  action  to  re- 
cover from  the  negligent  person  the  loss 
which  his  negligence  caused  to  such  em- 
ployer. Travelers'  Ins.  Co.  v.  Great  Lakes 
Engineering  Works  Co.  36:  60,  184  Fed.  426, 
107  C.  C.  A.  20. 

884.  Payment  of  insurance  policies  taken 
by  the  owner  of  property  for  tlie  benefit  of 
a  lien  holder,  to  the  latter,  does  not  of  it- 
self effect  an  equitable  assignment  of  the 
lien  to  the  insurer,  rather  tli.an  a  discharge 
of  the  debt,  and  the  insurer  cannot  enforce 
the  lien  in  displacement  of  the  claim  of 
other  creditors  of  the  property  owner.  P)ur- 
ton-Lingo  Co.  v.  Patton,  27:  420,  107  Pac. 
679,  15  N.  M.  304. 

885.  One  issuing  a  policy  of  insurance  at 
the  instance  of  a  property  owner,  with  a 
clause  making  it  payable  to  a  lien  holder, 
as  his  interest  may  appear,  is  not,  upon 
paying  a  loss  to  the  latter  after  the  policy 
has  been  forfeited  as  to  the  owner,  entitled 
to  subrogation  to  the  lien.  P>urton-Lingo 
Co.  V.  Patton,  27:  420,  107  Pac.  679,  15  N. 
M.   304. 

886.  An  insurer  who  undertakes  to  in- 
demnify the  assured,  with  full  knowledge 
of  an  antecedent  settlement  between  him 
and  the  party  causing  the  injury,  does  so 
at  its  peril,  is  a  mere  volunteer,  and  can- 
not recover  of  the  assured  under  the  subro- 
gation clause  of  the  contract.  Weaver  v. 
New  Jersey  Fidelity  &  P.  G.  Ins.  Co. 
51:  414,  136  Pac.  1180,  50  Colo.  112. 

887.  A  clause  in  a  fire  insurance  policy 
entitling  the  insurer  to  subrogation  in  case 
it  is  required  to  pay  a  loss  to  the  mort- 
gagee notwithstanding  a  forfeiture  of  the 
policy  as  to  the  owner  because  of  foreclo- 
sure proceedings  under  a  mortgage  or  deed 
of  trust  will  not  efl"ect  a  subrogation,  where 
the  forfeiture  is  by  foreclosure  of  a  me- 
chanics' lien.  Burton-Lingo  Co.  v.  Patton, 
27:  420,  107  Pac.  679,  15  N.  M.  304. 

888.  An  insurance  company  which  has 
paid  to  the  mortgagee  the  amount  of  its 
debt  after  the  destruction  of  the  insured 
property  by  fire  is  entitled  to  be  subro- 
gated to  the  rights  of  the  mortgagee  in  ac- 
cordance with  a  stipulation  in  the  policy, 
where  the  mortgagor  had  forfeited  his 
rights  thereunder  by  reason  of  change  of 
title  without  notice  and  by  failure  to  ful- 
fil any  of  the  requirements  of  the  policy. 
Gillaspie  v.  Scottish  t^nion  &  Nat.  Ins. 
Co.  11:  143,  56  S.  E.  213,  61  W.  Va.  169. 

(Annotated) 


INSURANCE,  VI.  g,  h,  1. 


1611 


889.  Payment  by  an  insurance  company, 
after  loss  by  fire,  of  the  whole  debt  secured 
on  the  property  by  a  deed  of  trust,  the  trust 
creditor  in  which  has  purcliased  insurance 
on  the  propert}'  in  the  name  of  a  former 
owner  without  notice  or  knowledge  that  he 
has  conveyed  his  title  thereto,  subject  to  the 
deed  of  trust,  and  reserving  his  lien  thereon 
for  the  purchase  money,  entitles  it  to  an 
assignjnent  of  the  trust  deed  and  to  be  sub- 
rogated to  the  rights  of  the  trust  creditor. 
Baker  v.  Monumental  Sav.  &  L.  Asso.  3:  79, 
62  S.  E.  403,  58  W.  Va.  408.  (Annotated) 

8!i0.  An  insurance  company  which,  after  a 
loss  by  fire  occurs,  pays  to  the  cestui  que 
trust  in  a  trust  deed  on  the  insured  proper- 
ty, who  has  obtained  insurance  thereon  for 
the  security  of  his  debt,  the  whole  debt  se- 
cured, is  entitled  to  take  an  assignment  from 
the  trust  creditor  of  the  debt  so  secured  and 
paid,  and  recover  the  same  in  the  same  man- 
ner as  its  assignor  could  recover.  Baker  v. 
^Monumental  Sav.  &  L.  Asso.  3:  79,  52  S.  E. 
403,  58  W.  Va.  408.  (Annotated) 

g.  Apportion }nent  or  contrihution. 

(See   also   same   heading    in   Digest   L.R.A, 

1-70.) 

Severability  of  contract,  see  supra.  III.  e, 
1,  f. 

Equitable  jurisdiction  of  suit  to  adjust  re- 
spective liabilities  of  several  insurers, 
see   Equity,   100-102. 

Injunction  to  protect  right  to  apportion- 
ment, see  Injunction,  265,  266. 

891.  A  clause  in  an  insurance  policy  pro- 
viding that  the  insurer  shall  be  liable  only 
for  its  pro  rata  share  of  the  entire  insur- 
ance on  the  property,  whether  valid  or  in- 
valid, applies  even  in  cases  where  existing 
policies  are  by  their  terms  rendered  void, 
by  the  issuance  of  the  policy  containing 
the  clause,  so  that  from  the  date  of  the 
latter  policy  it  is  the  only  existing  insur- 
ance on  the  property.  Webb  v.  Concordia 
F.  Ins.  Co.  36:  350,  132  N.  W.  523,  167 
Mich.  144.  (Annotated) 

892.  A  provision  in  an  insurance  policy 
taken  by  a  mortgagor  that  the  insurer  shall 
be  liable  only  for  the  proportional  amount 
which  the  policy  should  bear  to  the  whole 
insurance  on  the  property  is  not  applicable 
where  the  additional  insurance  is  a  policy 
taken  by  the  mortgagee  without  authority, 
and  which  he  promised  to  cancel.  Kelley 
use  of  Chisholm  v.  People's  Nat.  F.  Ins 
Co.  50:  1 164,  104  N.  E.  188,  262  111.  158. 

h'    Actions;    enforcing    payment. 

1.  In  general. 

(See  also  same  heading  in  Digest  L.R.A- 
1-10.) 

Conditions  of  right  to  bring  suit,  see  supra, 

VI.    a. 
Defense  as  to  action  on  policy,   see  supra, 

VI.  e. 
Digest  1-52  L.R.A.(N.S.) 


Provision  as  to  adjusting  claims  by  tribu- 
nals of  association,  see  supra,  614. 

Effect  on  mortgagee  of  wrongfully  making 
mortgagors  parties  to  action,  see  supra, 
871. 

Abatement  of  action  on  policy,  see  Abate- 
ment  AND  Revival,  30. 

Right  of  holder  of  tontine  policy  to  ac- 
counting on  its  maturity,  see  Account- 
ing, 9. 

Who  may  question  constitutionality  of  stat- 
ute, see  Action  or  Suit,  47. 

Jurisdiction  of  admiralty  of  claim  on 
marine  insurance  policy  containing  sue 
and  labor  clause,  see  Admiralty,  ]. 

Sufficiency  of  bill  of  exceptions  on  appeal, 
see  Appeal  and  Error,  244. 

Presumption  on  appeal,  see  Appeal  and 
Error,  445. 

Raising  questions  for  first  time  on  appeal, 
see  Appeal  and  Error,  728,  733,  745- 
747. 

Waiver  of  error  in  admission  of  evidence, 
see  Appeal  and  Error,  838,  840. 

Review  of  facts  on  appeal,  see  Appeal  and 
Error,  698,  907-909,  911,  940,  991-994. 

Prejudicial  error,  see  Appeal  and  Error, 
1089,  1112,   1256,   1381,   1385,  1434. 

Action  in  equity  to  avoid  multiplicity  of 
suits,  see  Equity,  64,  99-102. 

Presumptions  and  burden  of  proof,  see  Evi- 
dence, 113,  157-165,  199,  210,  228,  544- 
556. 

Explanation  and  rebuttal,  see  Evidence,  40. 

Parol  evidence,  see  Evidence,  913-921,  983, 
1017. 

Opinion  evidence,  see  Evidence,  1075. 

Evidence  of  communications  to  physicians, 
see  Evidence,  1283,  1330-1332,  1334, 
1335. 

Evidence  of  declarations  of  insured,  see 
Evidence,  1378-1379. 

Admissibility  of  evidence  generally,  see 
Evidence,  757,  759,  801,  812,  844,  868- 
872,  1433,  1518,  1543,  1558,  1559, 
1581,  1623,  1667,  1668,  1810,  1923, 
1944-1947,   1957. 

Sufficiency  of  evidence  in  action  on  policy, 
see  Evidence,  2061,  2077-2080,  2213- 
2215,   2327-2334. 

Admissibility  of  evidence  under  pleading, 
see  Evidence,  2428,  2429. 

Restraining  suit  at  law  on  policy,  see 
Equity,  86;  Injunction,  265-267. 

Judgment  in  action  on  policj',  see  Judg- 
ment, 33,  38,  142,  368. 

Who  may  maintain  action,  see  Parties,  45, 
46,   72,   73,   75-77. 

Joinder  of  parties  plaintiff  in  action  on 
policy,  see  Parties,  152. 

Necessary  parties  defendant,  see  Parties, 
169. 

Pleading  as  to,  generally,  see  Pleading, 
81,  200-202,  250-252,  467,  470,  484, 
522,  523. 

Amendment  of  pleadings,  see  Pleading, 
114. 

Striking  out  immaterial  denial,  see  Plead- 
ing, 156. 

Departure  in  reply,  see  Pleading,  558. 

Effect  of  demurrer  to  complaint,  see  Plead- 
ing, 642. 


1612 


INSURANCE,  VI.  h,  2,  3. 


Necessity  of  tender  of  premiums  by  insurer 
denying  liability  on  policy,  see  Tender, 
6. 

Questions  for  jury,  see  Trial,  100,  166-169, 
172,  237,  280,  290,  308,  328,  329,  645- 
656. 

Nonsuit,   see   Trial,    697. 

Directing  verdict,  see  Trial,  772,  773. 

Instructions,  see  Trial,  852,  1020-1024. 

Conflict  between  general  and  special  ver- 
dict, see  Trial,  1142. 

Change  of  venue,  see  Venue,  23. 

Competency  of  witnesses,  see  Witnesses, 
44,  45. 

Cross-examination  of  witnesses,  see  Wit- 
nesses, 89. 

Contradicting  or  impeaching  witness  in 
action  on  policy,  see  Witnesses,  147, 
148,  189. 

Corroboration  of  witness,  see  Witnesses, 
201,  202. 

Service  of  process  on  insurance  commis- 
sioner, see  Writ  and  Process,  39,  40. 

893.  No  penalty  can  be  recovered  for 
withholding  life  insurance  if  the  right  to 
the  insurance  is  not  established.  Thompson 
V.  Fidelity  Mut.  L.  Ins.  Co.  6:  1039,  92  S.  W. 
1098,  116  Tenn.  557. 

894.  Tender  of  the  amoun^.  received  in  set- 
tlement of  a  claim  on  an  insurance  policy 
which  was  procured  by  fraud  of  the  com- 
pany is  not  necessary  to  entitle  the  bene- 
ficiary to  maintain  an  action  for  the  full 
amount  due.  Industrial  Mut.  Indemnity 
Co.  .-.  Thompson,  10:  1064,  104  o.  W.  200, 
83  Ark.  575. 

2.    Against   assessment   companies. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

Conclusiveness  of  decisions  of  tribunals  of 
benevolent  societies,  see  Courts,  167, 
168. 

Right  to  resort  to  court  on  rejection  of 
claim,  see  Courts,  172. 

Injunction  against  action  on  benefit  certifi- 
cate, see  Injunction,  267. 

895.  A  statute  providing  for  the  crea- 
tion of  an  emergency  fund  by  assessment 
insurance  associations  does  not  become  a 
part  of  existing  contracts,  so  as  to  entitle 
their  beneficiaries  to  the  benefit  thereof,  un- 
less the  affirmative  acts  contemplated  by 
the  legislature  for  the  adoption  of  the  stat- 
ute by  existing  companies  are  performed, 
although  the  constitution  and  by-laws  of 
the  association  are  changed  to  permit  of 
creation  of  the  fund,  and  the  fund  is  ac- 
tually accumulated.  Crawford  v.  North- 
western Traveling  Men's  Asso.  10:  264,  80 
N.  E.  736,  226  111.  57. 

896.  A  provision  in  the  constitution  of  an 
assessment  insurance  company  that,  in  case 
of  deficiency  in  the  assessment  to  meet  a 
death  loss,  it  may  be  paid  from  the  emer- 
gency fund,  leaves  it  optional  with  the 
company  to  make  the  payment  or  not. 
Digest  1-52  KB.A.(N.S.) 


Crawford  v.  Northwestern  Traveling  Men's 
Asso.  10:  264,  80  N.  E.  736,  226  111.  57. 

(Annotated) 

3.  Contractual  limitation  of  time. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Time  to  furnish  notice  or  proofs  of  loss,  in 
jury,  or  death,  see  supra,  VI.  a. 

Condition  that  action  shall  not  be  brought 
until  expiration  of  certain  time,  see 
supra,  008,  609. 

Waiver  of  provision  as  to  time  within  which 
suit  must  be  begun,  see  supra,  622. 

In  case  of  employers'  liability  insurance, 
see  infra,  933. 

Conflict  of  laws  as  to  limitation  of  time, 
see  Conflict  of  Laws,  12. 

Law  governing,  see  Conflict  of  Laws,  140. 

Statutory  limitations, '  see  Limitation  of 
Actions. 

Constitutionality  of  statute  annulling  pro- 
vision limiting  time,  see  Constitution- 
al Law,  816. 

When  statute  of  limitations  begins  to  run. 
see  Limitation  of  Actions,  132-134. 

Sufficiency  of  pleading  to  entitle  one  to 
benefit  of  statute  rendering  void  limi- 
tation by  foreign  insurance  company  of 
time  for  suit  on  policy,  see  Pleading, 
252. 

Construction  of  statute  as  to  contractual 
limitation,  see  Statutes,  311. 

897.  A  provision  requiring  suit  on  a  mut- 
ual benefit  certificate  to  be  brought  within  a 
year  from  the  time  of  death  is  valid.  Cay- 
wood  v.  Supreme  Lodge  K.  &  L.  of  H.  23: 
304,  86  N.  E.  482,  171  Ind.  410. 

898.  A  stipulation  in  an  insurance  policy 
that  no  suit  shall  be  brought  on  a  contract 
unless  within  twelve  months  next  after  the 
damage  occurs  does  not  apply  to  a  suit  for 
damages  because  of  the  defective  character 
of  repairs  which  the  insurer  elects  to  make 
after  the  loss  in  accordance  with  its  rights 
under  the  contract.  Winston  v.  Arlington 
F.  Ins.  Co.  20:  960,  32  App.  D.  C.  61. 

( Annotated ) 

899.  A  provision  in  a  policy  of  fire  in- 
surance, that  no  action  on  the  policy  shall 
be  sustainable  unless  commenced  within  six 
months  next  after  the  fire,  is  unambiguous, 
and,  in  a  suit  on  the  policy  commenced 
more  than  six  months  after  the  date  of 
the  fire,  will  be  enforced  in  accordance 
with  t  lie  plain  meaning  of  its  terms,  where 
no  extrinsic  facts  are  alleged  excusing  the 
delay  in  bringing  the  suit.  Appel  v.  Cooper 
Ins.  Co.  10:  674,  80  N.  E.  955,  76  Ohio  St. 
52. 

900.  Under  a  policy  of  fire  insurance  con- 
taining the  provision  that  no  action  shall 
be  sustained  thereon  unless  commenced 
within  six  months  next  after  the  fire,  the 
period  of  limitation  begins  to  run  from 
the  date  of  the  fire,  notwithstanding  the 
policy  also  contains  a  provision  that  the 
loss  shall  not  be  payable  until  sixty  days 
after  proofs  of  loss  have  been  received  by 

i.2    /D.A.flJl    V.  .r 


INSURANCE,  VII.,  VIII. 


1613 


the    company.     Appel    v.    Cooper    Ins.    Co. 
10 :  674,  80  N.  E.  955,  76  Ohio  St.  52. 

901.  An  action  on  a  tire  insurance  policy 
must  be  brought  within  twelve  niontlis  after 
the  fire,  and  not  after  the  cause  of  action 
accrues,  under  a  provision  in  a  standard  in- 
surance policy  tliat  no  suit  shall  be  main- 
tained until  full  compliance  by  assured  with 
all  requirements,  nor  unless  commenced 
within  twelve  months  next  after  the  fire,  al- 
though the  policy  also  provides  that  proof 
of  loss  must  be  furnished  within  sixty  days 
after  the  fire,  and  that  tlie  loss  shall  not 
become  payable  until  sixty  days  after  such 
proofs  have  been  furnished.  Dahrooge  v. 
Rochester-German  Ins.  Co.  48:  906,  143  N. 
W.  608,  177  Mich.  442.  (Annotated) 

902.  Where  a  loss  under  an  insurance  pol- 
icy is  adjusted  and  the  insurer  agrees  to  pay 
a  fixed  sum  on  or  about  a  day  certain,  a  com- 
plaint alleging  those  facts  bases  the  action 
upon  the  adjustment,  and  the  policy  limi- 
tation of  time  for  bringing  action  thereon 
does  not  apply.  Strampe  v.  Minnesota 
Farmers'  Mut.  Ins.  Co.  26:  999,  123  N.  W. 
1083,  109  Minn.  364. 

903.  A  clause  purporting  to  prohibit  an 
action  on  a  policy  unless  commenced  within 
12  months  next  after  the  fire,  contained 
in  an  ordinary  printed  form  of  fire  insur- 
ance policy  which  has  been  adapted  to  a  con- 
tract of  reinsurance,  and  which  carelessly 
purports  to  include  many  conditions  in- 
applicable to  reinsurance,  is  so  unreason- 
able that  it  cannot  be  regarded  as  a  part 
of  the  contract  of  reinsurance.  Home  Ins. 
Co.  V.  Victoria-Montreal  F.  Ins.  Co.  1  B.  R. 
C.  178,  [1907]  A.  C.  59.  Also  Reported  in 
76  L.  J.  P.  C.  N.  S.  1,  95  L.  T.  N.  S.  627, 
23  Times  L.  R.  29.  (Annotated) 

VII.    Reinsurance. 

(See  also  same  heading  in  Digest  L.R.A. 
1-70.) 

Evidence  in  action  to  recover  secret  com- 
missions from  agent,  see  Evidence, 
1465. 

Action  against  reinsurer  for  reformation 
of  policy,  see  supra,   142,  a. 

Fire  insurance. 

See  also  supra,  903. 

904.  Inability  of  the  reinsured,  by  reason 
of  insolvency,  to  pay  a  fire  loss  in  full  or  in 
part,  does  not  affect  the  liability  of  the  re- 
insurer under  the  contract  of  reinsurance, 
even  though  it  provides  that  the  reinsurer 
shall  in  no  event  be  liable  for  an  amount 
in  excess  of  a  ratable  proportion  of  the  sum 
"actually  paid,"  etc.,  since  these  words  will 
be  construed  to  mean  "actually  payable." 
Allemannia  F.  Ins.  Co.  v.  Firemen's  Ins. 
Co.  14:  1049,  28  App.  D.  C.  330. 

905.  The  surrender  by  a  reinsured  to  the 
reinsurer  of  its  covering  note  on  the  day 
after  the  insured  property  has,  without  the 
knowledge  of  either  party,  been  injured  by 
fire,  upon  the  request  of  the  reinsurer  that 
the  risk  be  placed  elsewhere,  being  made 
under  a  mistake  of  fact,  may  under  the 
statute  be  rescinded;  and  therefore  it  does 
Digest  1-52  Ii.R.A.(N.S.) 


not  relieve  the  reinsurer  from  liability  for 
the  existing  loss.  Traders'  Ins.  Co.  v. 
Aachen  &  M.  F.  Ins.  Co.  8:  844,  89  Pac.  109, 
150  Cal.  370.  (Annotated) 

VIII.  Guaranty  policies. 

(See  also  same  heading  in  Digest  L.R.A. 
1-10.) 

What  constitutes  guaranty  insurance  with- 
in meaning  of  statute,   see  supra,  6. 

Insurance  against  liability  for  injuries  by 
horses,  necessity  for  notice  of  injury, 
see  supra,   638. 

Prejudicial  error  in  action  against  liability 
insurance  company,  see  Appeal  and 
Eerob,  1185,  1191. 

Bonds  for  fidelity  of  employees  or  corpo- 
rate officers,  see  Bonds,  II.  b. 

Presumption  that  insured  has  complied 
with  duty  as  to  rebuilding,  see  Evi- 
dence, 683. 

Garnishment  of,  see  Garnishment,  22,  23. 

See  also  supra,  658. 

906.  A  statute  prohibiting  the  obstruc- 
tion of  a  highway  is  not  a  "statute  affect- 
ing the  safety  of  persons"  within  the  mean- 
ing of  a  liability  insurance  policy  which 
exempts  the  insurance  company  from  lia- 
bility in  case  of  a  violation  of  the  latter 
class  of  statutes,  so  as  to  entitle  the  insur- 
ance company  to  repudiate  its  liability  in 
case  of  a  violation  by  the  insured  of  a 
statute  so  prohibiting  the  obstruction  of  a 
highway.  Butler  Bros.  v.  American  Fi- 
delity Co.  44:  609,  139  N.  W.  355,  120  Minn. 
157. 

907.  By  its  wrongful  denial  of  liability 
and  refusal  to  settle  or  defend  an  action 
against  the  insured,  a  liability  insurance 
company  releases  the  insured  from  its  agree- 
ment not  to  settle  a  claim  without  the  con- 
sent of  the  insurer,  and  waives  the  condi- 
tion of  the  contract  making  a  judgment 
after  trial  of  the  issue  a  condition  prece- 
dent to  a  recovery  by  the  insured  under 
the  contract.  Butler  Bros.  v.  American 
Fidelity  Co.  44:  609,  139  N.  W.  355,  120 
Minn.  157. 

908.  An  indemnity  insurer  with  liability 
limited  to  a  certain  amount  for  each  claim, 
and  the  absolute  control  over  the  question 
of  settlement  or  litigation,  does  not,  by  re- 
fusing permission  to  settle  a  claim,  render 
itself  liable  in  excess  of  its  undertaking, 
for  the  amount  which  the  judgment  recov- 
ered exceeds  the  amount  which  the  claim 
might  have  been  settled  for.  C.  Schmidt  & 
Sons  Brew.  Co.  v.  Travelers'  Ins.  Co.  52: 
126,  90  Atl.  653,  244  Pa.  286.      (Annotated) 

909.  Where,  in  an  action  against  a  lia- 
bility insurance  company  by  an  insured 
who' had  settled  a  previous  action  against 
him  for  damages  which  the  liability  com- 
pany has  wrongfully  refused  to  defend,  to 
recover  the  amount  paid  on  the  settlement 
of  the  previous  suit  and  attorneys'  fees, 
the  insurance  company  makes  no  attempt 
to  prove  that  the  insured  was  not  liable  in 
the  previous  action,  nor  raises  the  issue  as 


1614 


INSURANCE,  VIII. 


to  such  liability  in  any  way,  but,  on  the 
contrary,  it  is  shown  that  the  previous  suit 
was  settled  in  good  faith  to  avoid  a  pos- 
sible verdict  for  a  much  larger  sum  and 
to  end  the  litigation,  the  insurance  com- 
pany cannot  escape  liability  on  the  ground 
that  the  insured  was  not  liable  in  the  pre- 
vious action.  Butler  Bros.  v.  American 
Fidelity  Co.  44:  609,  139  N.  W.  355,  120 
Minn.  157. 

910.  Where  a  liability  insurance  company 
has  agreed  to  settle  or  defend  an  action 
brought  to  recover  of  the  insured  for  an 
accident  covered  by  the  policy,  and  has 
wrongfully  refused  so  to  settle  or  defend 
such  an  action,  and  the  insured  defends 
the  same,  and  in  good  faith  makes  a  settle- 
ment thereof,  he  may  recover  the  amount 
paid  on  such  settlement,  in  the  absence  of 
an  affirmative  showing  that  there  was  in 
fact  no  liability,  or  that  the  amount  paid 
was  excessive.  Butler  Bros.  v.  American 
Fidelity  Co.  44:  609,  139  N.  W.  355,  120 
Minn.   157.  (Annotated) 

911.  One  who  undertakes  to  indemnify  a 
manufacturer  against  loss  from  liability 
imposed  by  law  for  damages  on  account  of 
bodily  injuries  accidentally  suffered  by  any 
person  not  employed  by  the  assured,  while 
at  or  about  the  work  of  the  assured,  and 
to  defend  any  suit  brought  to  enforce  a 
claim  for  damages  on  account  of  an  accident 
covered  by  the  policy,  is  not  liable  for  the 
costs  and  counsel  fees  and  the  amount  paid 
in  compromise  of  a  suit  brought  by  a  boy 
injured  while  trespassing  upon  its  property 
for  the  purpose  of  gaining  a  view  of  the 
interior  of  a  theater  on  the  adjoining  prop- 
erty, under  circumstances  absolving  the 
assured  from  liability  for  the  injury.  Hen- 
derson Lighting  &  P.  Co.  v.  Maryland  Cas- 
ualty Co.  30:  1 105,  69  S.  E.  234,  153  N.  C, 
275.  (Annotated) 

912.  It  is  not  necessary  to  notify  a  lia- 
bility insurance  company  of  a  second  action 
against  the  insured,  brought  for  the  same 
cause  as  the  prior  action,  which  was  volun- 
tarily dismissed,  where  the  insurance  com- 
pany was  notified  of  the  first  action,  but 
denied  liability  and  refused  to  defend  the 
same.  Butler  Bros,  v,  American  Fidelity 
Co.  44:  609,  139  N.  W.  355,  120  Minn.  157. 
Rent  insurance. 

913.  The  parties  to  a  contract  of  rent  in- 
surance may  stipulate  for  a  method  of  as- 
certaining and  computing-  the  loss,  notwith- 
standing the  statute  provides  that  the  sole 
object  of  insurance  is  indemnity.  Whitney 
Estate  Co.  v.  Northern  Assur.  Co.  23:  123, 
101  Pac.  911,  155  Cal.  521, 

914.  The  gross  rentals,  and  not  the 
amount  less  cost  of  janitor  and  other  service 
to  which  the  landlord  is  subject,  are  covered 
by  a  policy  providing  that  the  insurer  shall 
be  liable  for  the  actual  loss  of  rent  based  on 
rentals  in  force  at  the  time  of  fire,  and  re- 
quiring the  assured  to  carry  insurance  in  an 
amount  equal  to  the  annual  rents  of  the 
premises,  in  the  absence  of  which  the  as- 
sured shall  be  held  as  a  coinsurer  in  the 
amount  of  the  deficiency.  Whitney  Estate 
Digest   1-52  I..R.A.(N.S.) 


Co.  v.  Northern  Assur.  Co.  23:  123,  101  Pac. 
911,  155  Cal.  521.  (Annotated) 

915.  Delay  in  rebuilding  a  structure  the 
rents  of  which  are  insured,  owing  to  refusal 
of  a  permit  by  the  municipal  authorities, 
so  that  the  rents  are  not  re-established  as 
soon  as  they  might  otherwise  liavt  been,  is 
within  the  provisions  of  the  policy  that  the 
company  will  not  be  liable  for  loss  caused 
by  order  of  any  civil  authority.  Palatine 
Ins.  Co.  V.  O'Brien,  16:  1055,  68  Atl.  484, 
107  Md.  341.  (Annotated) 
Employer's    liability. 

Subrogation  of  insuier.  see  supra,  882,  883. 

Fraud  of  insurer  in  inducing  next  friend 
of  injured  employee  to  bring  action  for 
nominal  amount,  see  Estoppel,  46; 
Fraud  and  Deceit,  14. 

Participation  by  indemnity  insurer  in  de- 
fense of  suit  against  insured  as  es- 
toppel to  deny  liability,  see  Estoppel, 
90. 

Garnishment  of  amoimt  due,  see  Gabnish- 
MEXT,  22. 

Employer's  insurance  act  as  depriving  em- 
ployee of  right  to  jury  trial,  see  Juey, 
46." 

Who  is  employee  within  terms  of  liability 
insurance,  see  Master  and  Servant, 
67. 

Right  of  insurer  to  maintain  action  against 
one  primarily  liable  for  injury,  see 
Parties,  15. 

Joinder  of  insurance  company  in  action 
against  master  for  injury  to  servant, 
see  Parties,  199. 

See  also  Motions  and  Orders,  7. 

916.  An  indemnity  insurance  company 
which  has  insured  a  railroal  company 
against  loss  on  account  of  injuries,  fatal  or 
nonfatal,  sustained  by  its  emp'oyees,  and 
which,  without  the  railroad  company's  con- 
sent, has  obtained  from  the  wilow  of  an 
employee  negligently  killed  a  compromise 
of  her  claim  which  It  supposed  covered  her 
right  of  action  both  as  widow  and  as  tutrix 
of  her  child,  but  was  legally  insufficient  for 
the  latter  purpose,  is  not  entitled,  after 
judgment  has  been  recovered  against  the 
railroad  company  by  the  widow  r.s  tutrix, 
to  claim,  in  an  action  brought  against  it  by 
the  railroad  company,  on  its  policy,  credit 
for  the  amount  which  it  paid  th  •  widow  at 
the  time  of  the  compromise  with  her.  New 
Orleans  &  C.  R.  Co.  v.  Maryland  Casualty 
Co.  6:  562,  38  So.  89,  114  La.  154. 

917.  A  corporation  which  secures  from  a 
bank  money  with  which  it  pays  a  judgment 
against  it  in  favor  of  an  injured  employee, 
upon  its  note  with  property  of  its  directors 
as  collateral  security,  is  within  the  opera- 
tion of  a  policy  insuring  it  against  loss 
from  liability  imposed  by  law.  West  River- 
side Coal  Co.  V.  Maryland  Casualty  Co.  48: 
195,  1.35  N.  W.  414,  155  Iowa,  161. 

(Annotated) 

918.  Under  a  policy  of  indemnity  insur- 
ance issued  to  a  railroad  company  to  pro- 
tect it  against  loss  on  account  of  injuries 
sustained  by  its  employees,  ani  by  which 
the  insurer  has  the  right  to  decide  upon  the 
advisability    of    resisting    the    payment    of 


INSURANCE,  VIII. 


1615 


claims,  the  latter  may,  in  good  faith,  refuse 
to  compromise  a  claim,  and  defend  a  suit 
founded  thereon,  without  being  liable  to  the 
railroad  company  for  the  difference,  where 
the  damages  recovered  in  the  suit  on  the 
claim  exceeded  the  amount  for  which  a  com- 
promise might  have  been  effected, — espe- 
cially where  the  railroad  company  did  not 
protest  against  defending  the  suit,  or  de- 
cline to  participate  in  the  defense.  New 
Orleans  &  C.  R.  Co.  v.  Maryland  Casvialty 
Co.  6:  562,  38  So.  89,  114  La.  154. 

(Annotated) 

919.  A  clause  in  a  policy  undertaking  to 
indemnify  assured  against  loss  by  reason 
of  liability  on  account  of  injuries  to  em- 
ployees, by  which  the  insurer  undertakes  to 
defend  proceedings  against  the  assured,  or 
settle  the  same,  unless  it  elects  to  pay  the 
provided  indemnity  to  the  assured,  does  not 
make  the  contract  one  guaranteeing  pay- 
ment of  an  obligation  of  the  insured,  rather 
than  one  of  indemnity,  where  another  clause 
of  the  policy  provides  that  no  action  shall 
be  brought  against  the  insurer  unless  by 
the  insured  himself  to  reimburse  him  for 
loss  actually  sustained  and  paid,  the  for- 
mer clause  being  merely  an  additional  priv- 
ilege for  the  protection  of  the  insurer.  Al- 
len v,  ^tna  L.  Ins.  Co.  7 :  958,  145  Fed.  881, 
76  C.  C.  A.  265. 

920.  A  limitation  in  a  policy  of  indemnity 
insurance  against  liability  for  damages  on 
account  of  injuries  to  employees,  and  against 
the  expenses  of  defending  any  suit  for  dam- 
ages as  aforesaid,  to  a  certain  amount,  for 
death  of  or  injury  to  any  one  person,  does 
not  include  within  the  amount  named  the 
expense  of  defending  the  suit  where  assured 
is  forbidden  to  make  any  settlement,  incur 
any  expen.se,  and  interfere  with  any  nego- 
tiations for  settlement,  or  in  any  legal  pro- 
ceeding. New  Amsterdam  Casualty  Co.  v. 
Cumberland  Teleph.  &  Teleg.  Co.  12:  478, 
152  Fed.  961,  82  C.  C.  A.  315.     (Annotated) 

!)21.  The  cost  and  expenses  on  appeal,  as 
well  as  those  incurred  on  the  trial,  by  the 
holder  of  an  employers'  liability  insurance 
policy  in  defense  of  an  action  against  him 
by  an  injured  employee,  are  recoverable 
from  the  insurer  in  case  it  refuses  to  con- 
duct the  defense,  vmdcr  a  provision  in  the 
policy  that  if  any  proceedings  are  taken 
to  enforce  a  claim,  the  insurer  shall,  at  its 
own  cost,  undertake  the  defense.  John  B. 
Stevens  &  Co.  v.  Frankfort  Marine,  Acci. 
&  Plate  Glass  Ins.  Co.  47:  1214,  207  Fed. 
757,  125  C.  C.  A.  295. 

922.  Under  an  employer's  indemnity  in- 
surance policy  rendering  the  insurer  liable 
for  loss  sustained  by  assured  up  to  a  speci- 
fied sum  for  injury  to  a  single  employee, 
and  providing  that,  in  case  the  insurer 
elects  to  contest  the  claim,  it  shall  pay  in 
addition  the  expense  of  litigation  and  take 
charge  of  the  defense  at  its  own  cost,  the 
insurer  is  liable  in  case  it  does  take  charge 
of  the  defense  and  direct  an  appeal  from  an 
adverse  judgment,  instead  of  paying  the 
specified  sum  and  absolving  itself,  as  it 
might  have  done,  for  the  damages  and  in- 
terest on  appeal  and  for  the  court  costs,  in 
Dieest   1-52  I..R.A.(N.S.) 


addition  to  the  principal  sum  specified  and 
the  expenses  of  the  trial,  ^tna  L.  Ins.  Co. 
V.  Bowling  Green  Gaslight  Co.  43:1128,  150 
S.  W.  994,  150  Ky.  732.  (Annotated) 

—  employees    and   injuries   covered    by 

policy. 

923.  Employers'  liability  insurance  does 
not  cover  injury  to  employees  of  independ- 
ent contractors  performing  labor  for  the 
insured,  although  the  insured,  to  aid  the 
contractor,  advances  the  pay  of  employees, 
and  the  action  for  compensation  is  brought 
against  him.  Employers'  Indemnity  Co. 
V.  Kelly  Coal  Co.  41:963,  149  S.  W.  992, 
149  Ky.  712.  (Annotated) 

924.  Injury  to  an  employee  from  glanders 
contracted  from  horses  which  his  duties  re- 
quired him  to  handle  is  within  a  policy 
insuring  the  employer  against  liability  for 
the  loss  imposed  by  law  upon  the  insured 
for  damages  on  account  of  bodily  injuries 
accidentally  suffered  by  an  employee  while 
on  duty  within  the  premises  of  the  assured 
in  the  operation  of  his  trade  or  business. 
H.  P.  Hood  &  Sons  v.  Maryland  Casualty 
Co.   30:  1192,  92  N.   E.  329,  206   Mass.  223. 

(Annotated) 

—  condition    as    to    loss    and    satisfac- 

tion of  judgment. 

925.  A  provision  in  a  policy  insuring  an 
employer  against  loss  from  liability  for  in- 
juries to  employees,  that  no  action  shall  lie 
against  the  company  as  respects  any  loss 
under  the  policy  unless  it  shall  be  brought 
by  the  insured  to  reimburse  him  for  loss 
actually  sustained,  and  paid  in  satisfaction 
of  a  judgment  against  him,  is  a  contract  of 
indemnity  for  the  benefit  of  the  insured,  and 
no  right  of  action  accrues  thereon  against 
the  insurance  company  until  the  insured 
sustains  a  loss  by  the  payment  of  a  lia- 
bility. Carter  v.  ^tna  L.  Ins.  Co.  11:  1155, 
91   Pac.  178,  76  Kan.  275. 

926.  Under  a  casualty  insurance  policy 
providing  that  no  action  shall  lie  against 
the  company  unless  brought  by  the  assured 
to  reimburse  him  for  loss  actually  sustained 
and  paid  in  satisfaction  of  a  judgment  re- 
covered against  him,  payment  and  satisfac- 
tion of  the  judgment  may  be  made  by  the 
assured  by  the  execution  and  delivery  of 
promissory  notes,  if  executed  in  good  faith 
and  so  accepted  by  the  judgment  creditor; 
and  ^thereupon  a  cause  of  action  accrues  in 
favor  of  the  assured  and  against  the  com- 
pany. Kennedy  v.  Fidelity  &  C.  Co.  9:  478, 
110  N.  W.  97,  100  Minn.  ].         (Annotated) 

927.  Execution  by  an  employer  of  his 
note  in  good  faith  in  satisfaction  of  a  judg- 
ment against  him  by  his  employee  is  within 
the  meaning  of  an  indemnity  policy  whi'^h 
provides  tljat  no  action  shall  lie  against  th" 
insurer  as  respects  any  loss  except  to  re 
imburse  the  insured  for  loss  actually  sus- 
tained and  paid  by  him  in  satisfaction  of  a 
judgment  after  trial  of  the  issue.  Seattle 
&  S.  F.  R.  &  Nav.  Co.  v.  Maryland  Casualty 
Co.  18:  121,  96  Pac.  509,  50  Wash.  44. 

928.  The  giving  to  the  employee  of  his 
note  by  a  receiver  appointed  in  supplemen- 
tary   proceedings     to    collect    a     judgment 


1616 


INSURANCE,  VIII. 


against  an  insolvent  employer  for  injury  to 
his  employee  is  not  a  satisfaction  of  the 
claim  within  the  meaning  of  an  indemnity 
insurance  policy,  that  no  action  shall  lie 
against  the  insurer  unless  brought  by  the 
assured  himself,  to  reimburse  him  for  actual 
loss  sustained  and  paid  by  him  in  satisfac- 
tion of  a  judgment,  and  gives  the  receiver  no 
standing  to  enforce  the  policy.  Stenbom  v. 
Brown-Corliss  Engine  Co.  20:  956,  119  N.  W- 
308,  137  Wis.  564. 
—  notice   of  injury. 

Notice  of  accident  to  servant  of  corpora- 
tion insured  against  liability  for  in- 
juries as  notice  to  company,  see  No- 
tice, 51,  52. 

929.  The  obligation  of  the  assured  to  give 
immediate  notice  to  the  insurer  of  any  acci- 
dent causing  injury  to  a  workman,  imposed 
by  a  policy  of  insurance  covering  the  lia- 
bility of  an  employer  to  compensate  his 
workmen  for  injuries  by  accident  in  the 
course  of  their  employment,  does  not,  in 
the  absence  of  evidence  that  the  employer 
either  knew  or  had  the  opportunity  of 
knowing  of  the  existence  of  such  condition 
at  the  date  of  the  accident,  apply  in  the 
case  of  an  accident  occurring  within  the 
period  covered  by  the  policy,  but  before 
the  policy  had  been  executed  and  trans- 
mitted to  the  assured.  Re  Coleman's  De- 
positories, Ltd.,  3  B.  R.  C.  707,  [1907]  2  K, 
B.  798.  Also  Reported  in  76  L.  J.  K.  B, 
N.  S.  865,  97  L.  T.  N.  S.  420,  23  Times  L, 
R.  638.  (Annotated) 

930.  Qucere,  whether  a  provision  in  a  pol- 
icy of  insurance  covering  the  liability  of 
an  employer  to  compensate  his  workmen 
for  injuries  by  accident  in  the  course  of 
their  employment,  that  the  employer  should 
give  immediate  notice  of  any  accident  caus- 
ing injury  to  a  workman,  read  in  connec- 
ion  with  a  further  provision  that  the  ob- 
servance and  performance  by  the  employer 
of  the  times  and  terms  set  out  in  the  pol- 
icy, so  far  as  they  contain  anything  to  be 
done  by  the  employer,  are  the  essence  of  the 
contract,  can  be  regarded  as  a  condition 
precedent,  where  the  expression  "condition 
precedent"  is  used  in  other  clauses  than 
those  above  detailed,  and  the  second  clause 
referred  to  has  reference  also  to  matters 
of  detail  which  it  would  be  difficult  to  be- 
lieve were  intended  as  conditions  precedent. 
Re  Coleman's  Depositories,  Ltd.,  3  B.  S.  C, 
707,  [1907]  2  K.  B.  798.  Also  Reported 
in  76  L.  J.  K.  B.  N.  S.  865,  97  L.  T.  N. 
S.  420,  23  Times  L.  R.  638. 

931.  One  insuring  against  employers'  lia- 
bility cannot  avoid  his  liability  on  the  pol- 
icy, because  immediate  notice  of  the  acci- 
dent was  not  given  him,  as  required  by  the 
terms  of  the  policy,  if  it  was  given  to  the 
broker  through  whom  the  policy  was  pro- 
cured, under  the  honest  belief  that  he  rep- 
resented tlie  insurer,  and  by  him  forwarded 
to  the  wrong  company,  if  the  insurer  finally 
receives  it  in  ample  time  to  investigate  the 
claim,  so  that  it  suffers  no  loss  by  reason 
of  the  delay,  and  immediate  notice  is  not 
made  a  condition  of  liability  by  the  con- 
Digest  1-52  L.R.A.(N.S.) 


tract.     Hope  Spoke  Co.  v.  Maryland  Casual- 
ty Co.  38:  62,  143  S.  W.  85,  102  Ark.  1. 

(Annotated) 

932.  The  holder  of  an  employers'  liabili- 
ty insurance  policy  which  provides  that, 
upon  occurrence  of  an  accident,  he  shall 
give  notice  thereof  to  the  insurer  immedi- 
ately, and  at  the  latest  within  ten  days, 
is  not  required  to  give  such  notice  before 
he  himself  receives  it.  John  B.  Stevens  & 
Co.  V.  Frankfort  Marine,  Acci.  &  Plate 
Glass  Ins.  Co.  47:  1214,  207  Fed.  757,  125  C. 
0.  A.  295.  (Annotated) 

—  time  for  bringing  action. 

933.  A  provision  in  a  policy  of  indemnity 
insurance  that  action  miist  be  brought  upon 
it  within  thirty  days  after  satisfaction  of  a 
final  judgment  for  damages  by  assured  is 
waived,  and  not  merely  suspended,  by  the 
prolongation  of  attempts  at  compromise  be- 
yond the  thirty-day  period.  Lynchburg  Cot- 
ton Mill  Co.  V.  Travelers'  Ins.  Co.  9:  654, 
149  Fed.  954,  79  C.  C.  A.  464.       (Annotated) 

—  liability  of  insurer  to  employee. 

934.  An  employee  who  has  recovered  judg- 
ment against  his  employer  for  personal  in- 
juries sustained  cannot,  where  the  latter  wa* 
adjudged  a  bankrupt  during  the  pendency  of 
the  suit,  maintain  an  action  iipon  the  judg- 
ment against  an  insurance  company  which 
had  issued  a  policy  indemnifying  the  em- 
ployer against  loss  from  liability  for  in- 
juries to  employees,  although,  in  accordance 
with  a  provision  in  the  policy  permitting  it 
to  do  so,  the  company  defended  the  action 
for  personal  injuries  in  behalf  of  the  em- 
plover.  Carter  v.  ^tna  L.  Ins.  Co.  11:  ii55» 
91  Pac.  178,  76  Kan.  275. 

935.  One  agreeing  to  indemnify  an  em- 
ployer against  liability  for  damages  on  ac- 
count of  bodily  injuries  to  an  employee 
through  his  negligence,  by  a  policy  provid- 
ing that  no  action  shall  lie  against  the  in- 
surer as  respects  any  loss  under  the  policy 
unless  it  shall  be  brought  by  the  assured 
himself,  for  loss  actually  sustained  and  paid 
by  him  in  satisfaction  of  a  final  judgment, 
and  binding  the  insurer  to  defend  any  ac- 
tion brought  by  an  injured  employee  against 
the  assured,  or  settle  the  same,  is  not  liable 
to  the  injured  servant  for  the  amount  of  a 
judgment  recovered  by  him,  although  the 
employer  has  become  insolvent,  and  the  in- 
surer assumed  the  defense  of  the  action, 
and  excluded  the  employer  from  participat- 
ing therein.  Cay  lard  v.  Robertson,  30:  1224, 
131  S.  W.  864,  123  Tenn.  382. 

Title   insurance. 

936.  A  policy  holder  in  a  title  insurance 
company  which  has  been  judicially  declared 
insolvent  is  not  entitled  to  the  return  of 
that  part  of  the  unearned  premium  upon  the 
winding  up  of  such  company's  affairs  which 
the  application  for  insurance  stipulated 
might  be  retained  by  the  company  for  its 
services  in  investigating  the  title  insured. 
State  ex  rel.  Schaefer  v.  Minnesota  Title 
Ins.  &  T.  Co.  19:  639,  116  N.  W.  944,  104 
Minn.  447. 

937.  The  holder  of  a  policy  of  insurance 
issued  by  a  real  estate  title  insurance  com; 


INSURANCE  BROKERS— INSURANCE  PATROL. 


1617 


pany  is,  upon  a  cancelation  or  annulment  of 
the  policy  by  a  judicial  decree  declaring  the 
company  insolvent  and  appointing  a  receiver 
to  wind  up  its  affairs,  entitled  to  a  return  of 
a  proportionate  part  of  the  premium  paid 
therefor,  meastired  by  the  time  elapsing  be- 
tween the  date  of  the  policy  and  the  date  on 
which  the  company  was  so  adjudged  insol- 
vent. State  ex  rel.  Schaefer  v.  Minnesota 
Title  Ins.  &  T.  Co.  19:  639,  116  N.  W.  944, 
104  Minn.  447.  (Annotated) 

938.  That  one  surrenders  possession  of 
property  the  title  to  which  has  been  insured 
upon  the  rendition  of  an  adverse  decree, 
without  waiting  to  be  expplled  from  the 
property,  does  not  deprive  him  of  his  right 
of  action  against  the  insurance  company. 
Foehrenbach  v.  German  American  Title  & 
T.  Co.  12:  465,  66  Atl.  561,  217  Pa.  331. 

939.  Loss,  within  the  meaning  of  a  title- 
insurance  policy,  occurs  where  one  in  pos- 
session, claiming  a  fee  under  a  will,  is  sub- 
sequently deprived  of  a  half  interest  in  the 
property  because  the  title  under  the  will 
proves  defective  and  the  true  title  appears 
io  be  only  a  half  interest  by  descent,  even 
though  insured  never  owned  the  title  he 
supposed  he  did,  and  which  was  insured. 
Foehrenbach  v.  German  American  Title  & 
T.  Co.  12:  465,  60  Atl.  561,  217  Pa.  331. 
Automobile  accidents. 

Question   for   jury   as  to  notice  of   injury, 

see  Trial,  655,  656. 
See  also,  supra,  676-678. 

940.  A  provision  in  a  policy  insuring 
against  loss  by  reason  of  the  operation  of 
the  assured's  automobile,  that  no  action 
shall  lie  against  the  company,  "unless 
brought  by  the  assured  for  loss  or  expense 
actually  sustained  and  paid  in  money  by 
him  after  trial  of  the  issue,"  applies  only 
in  case  the  company  denies  liability  and 
refuses  to  defend.  Patterson  v.  Adan,  48: 
184,  138  N.  W.  281,  119  Minn.  308. 

941.  A  policy  of  automobile  insurance  ob- 
ligating the  insurer  to  indemnify  the  as- 
sured against  loss  from  the  liability  im- 
posed by  law  upon  him  for  damages  on 
account  of  bodily  injuries,  including  death, 
accidentally  sustained  by  any  person  by 
reason  of-  the  maintenance  or  use  of  his 
automobile,  and  to  defend  in  tlie  name  and 
on  behalf  of  the  assured  any  suits  which 
may  at  any  time  be  brought  against  him 
on  account  of  such  injuries,  does  not  bind 
the  insurer  to  defend  a  criminal  prosecu- 
tion for  manslaughter  instituted  against 
the  assured.  Patterson  v.  Standard  Acci. 
Ins.  Co.  51:583,  144  N.  W.  491,  178  Mich. 
288.  (Annotated) 

942.  A  provision  in  an  automobile  acci- 
dent indemnity  policy,  that  the  assured,  on 
the  occurrence  of  an  accident,  shall  give 
immediate  written  notice  thereof  with  the 
fullest  information  obtainable  at  the  time 
to  the  assurer,  does  not  require  notice  of 
all  accidents,  but  only  of  such  accidents 
as  result  in  bodily  injury,  where  the  policy 
is  executed  "to  indemnify  the  assured 
against  loss  from  liability  imposed  by  law 
upon  the  assured  for  damages  on  account  of 
Digest   1-52   L.R.A.(N.S.) 


bodily  injuries  (including  death  at  any 
time  resulting  therefrom)  accidentally  in- 
flicted. Chapin  v.  Ocean  Acci.  &  G.  Corp. 
52:  227,  147  N.  W.  465,  96  Neb.  213. 

943.  A  provision  in  an  automobile  acci- 
dent indemnity  policy  that  the  assured,  on 
the  occurrence  of  an  accident,  shall  give 
immediate  written  notice  thereof  with  full- 
est information  obtainable  at  the  time  to 
the  assurer,  is  a  reasonable  requirement. 
Chapin  v.  Ocean  Acci.  &  G.  Corp.  52:  227, 
147  N.  W.  465,  96  Neb.  213. 

IX.  Burglary   insurance. 

944.  Entering  and  leaving  a  storeroom 
through  an  unlocked  door,  and  feloniously 
carrying  away  property  therefrom  by  the 
intimidation  of  the  occupants  with  deadly 
weapons,  is  not  within  a  policy  insuring 
against  loss  by  burglary  by  persons  who 
have  made  forcible  and  violent  entrance 
upon  the  premises  or  exit  therefrom,  of 
which  force  and  violence  there  shall  be  visi- 
ble evidence,  and  relieving  the  insurer  from 
liability  unless  there  are  visible  marks 
upon  the  premises  of  the  actual  force  and 
violence  used  in  making  the  entrance  or 
exit.  Rosenthal  v.  American  Bonding  Co. 
46:561,  100  N.  E.  716,  207  N.  Y.  162. 

(Annotated) 

945.  A  provision  in  a  policy  in  insurance 
against  burglary  of  the  occupant  of  the 
fourth  floor  of  a  building,  which  requires 
the  employment  of  a  private  watchman 
within  the  premises  when  not  open  for  the 
transaction  of  business,  requires  a  watch- 
man on  the  floor  occupied  by  assured,  and 
the  maintenance  of  a  watchman  in  the 
building  who  has  no  direct  access  to  the 
room  where  the  insured  property  is  sit- 
uated is  not  sufficient.  Axe  v.  Fidelity  & 
Casualty  Co.  46:574,  86  Atl.  1095,  239  Pa. 
569. 


INSURAXCE   BROKERS. 

Restrictions  on  right  to  engage  in  insurance 
brokerage  business,  see  Constitutional 
Law,  256. 


INSURANCE   COMMISSIONER. 

De  facto  commissioner,  see  officers,  116. 
Service  of  process  on,  see  Writ  and  Proc- 
ess, 39,  40. 


INSURANCE    INSPECTOR. 

Liability  for  injury  to,  see  Negligence,  92. 


INSURANCE    PATROL. 

See  Fire  Insurance  Patrol. 
102 


1618 


INSURRECTION. 


INSURRECTION. 

Power  of  courts  to  interfere  with  acts  of 
governor  suppressing,  see  Courts,  59. 

Right  to  controvert  governor's  declaration 
that  state  of  insurrection  existed  in 
certain  territory,  see  Habeas  Corpus, 
18. 

Institution  of  martial  law,  see  Martiai, 
Law. 

As  to  riots,  see  Mobs  and  Riots. 

1.  The  militia,  in  suppressing  an  in- 
surrection under  the  governor's  orders,  may, 
Dieest  1-52  L.R.A.(N.S.) 


without  turning  them  over  to  the  civil  au- 
thorities, seize  and  det.ain  insiirrectionists 
and  those  aiding  and  abetting  them,  until 
the  insurrection  is  suppressed.  Re  Mover. 
12:  979,  85  Pac.   190,  35  Colo.   159. 

(Annotated) 
2.  The  seizure  and  detention  of  insur- 
rectionists by  the  militia  when  acting,  un- 
der orders  from  the  governor,  to  suppress  an 
insurrection,  does  not  violate  the  constitu- 
tional provision  that  the  militia  shall  al- 
ways be  in  strict  subordination  to  the  civil 
power,  since  the  act  of  the  governor  is  in 
his  civil  capacity,  lie  Moyer,  12:  979,  86 
Pac,  190,  36  Colo.  169. 


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